The years 1752-1754 were full of trouble for Highlanders. The Prince was intriguing desperately with Scotland, and with Prussia. The Elibank Plot was matured and betrayed. Dr. Cameron and Lochgarry were stirring up the Clans. Cluny remained as untakable as Abd-el-Kader. The Government were alarmed at once by Pickle, by their ambassadors abroad, and by Count Kaunitz. The Forfeited Estates had been nationalised, ‘for the improvement of the Highlands,’ factors had been appointed to raise and collect rents: evictions were threatened; agrarian discontent had been aroused; Campbell of Glenure had been shot in the wood of Lettermore.[97] The reports of all these things flew from township to township, from strath to strath, as fleetly as the fiery cross. The Highlands, in 1752, were boiling like a caldron. Old tenants were being turned out that men of a hostile Whiggish clan might occupy their hereditary holdings. Ensign Small, an officer who knew Gaelic, and was engaged in secret service, found murmurs of a rising even in the Islands. The Duke of Newcastle was jotting down alarmed notes, ‘to be at any expense in order to find out where the Young Pretender is. Lord Anson to have Fregates upon the Scotch and Irish coast.’[98]
The consequence of this official flutter was a crowd of arrests and trials. James Stewart, on a charge of being accessory to Glenure’s slaying, was, to speak plain words, judicially murdered. He was confined in Fort William, and denied access to his advisers; the charges and evidence against him were kept from him till too late, he had a jury of hostile Campbells at Inveraray, the Duke on the bench, and he was hanged as accessory to a murder in which the alleged principal was not before the Court. Political necessities and clan hatred killed James Stewart (1752).
In 1753 Dr. Cameron was caught, and hanged in London, denouncing as informer his kinsman, Samuel Cameron. The famed Sergeant Mohr Cameron was taken (by treachery, General Stuart hints and tradition proclaims; both are right), and he ‘died for the law.’ His alleged crime was cattle theft, but, as a sergeant in French service, he was probably regarded as a Jacobite agent. The Sergeant was captured in mid-April, 1753: a few days later Angus Cameron, brother of Glenevis, was taken at the same place, his house of Dunan or Downan, in Rannoch. On May 6 Fassifern, Charles Stewart, writer in Banavie, Fassifern’s agent, and Glenevis, were lodged, with Angus Cameron, in Edinburgh Castle. On July 7 Young Barisdale, Young Morar, and others, were culled like flowers at Lochourn, while Young John Macdonnell, ‘Spanish John,’ was also arrested.
Of all these, the most important prisoner was Fassifern. He had been taken, as we saw, in October 1751, and released, as nothing could be found against him in the affair of the Cluny Treasure. He was Lochiel’s brother and representative, and consequently chief, for the time, of the Camerons. He had not been out in Forty-five. A man of commerce, a burgess of Glasgow, he had tried to dissuade Lochiel from exposing himself to the dangerous charm of the Prince. But he was naturally anxious to save as much as possible of Lochiel’s estate for the family. There were several lawful claims on it, which Government was bound to respect and he to press. Moreover he, with ‘Glenevegh’ (Glenevis), had been denounced by Pickle as agents between the Southern and Northern Jacobites.[99] In addition to all this, Fassifern was trying to keep the old Cameron tenants, Jacobites, in their holdings, and evict tenants who had the bad taste to be Whigs.
As early as May 1751 he had been denounced for these offences by Captains Johnston and Mylne, of the Buffs, in garrison at Inversnaid. ‘He falls on ways,’ writes an informer whose letter they forward, ‘of turning out any from their possessions, who he knows to be well affected to His Majesty.’ He encourages Jacobites to settle near the forts, for the purpose of a sudden assault.[100] He has ‘plenty of the Pretender’s money’ to use for these purposes. Clan sentiment, not Jacobitism, may have influenced Fassifern, and Glenevis, at least, was hardly the man to play the part of Jacobite agent.
The original charge against Fassifern in May 1753 was that of ‘correspondence with persons attainted.’ But the game of the Government was to get rid of him on any pretext. Colonel Crawfurd had come from Fort William to Edinburgh, and, on June 4, 1753, wrote a long letter to the Lord Justice Clerk. ‘The uprooting of Fassifern,’ he says, with candour, ‘is what we ought chiefly to have in view.’[101] He has found witnesses, or rather has heard of them (it seems kinder to omit the names of these gentlemen), who avow that Fassifern tampered with them to threaten the late Glenure’s wife, and to murder Glenure. That unlucky man was factor for Lochiel’s as well as for Ardsheil’s forfeited estate, and was expected to evict Cameron tenants. ‘The Lord Advocate said that, if this did not hang Fassiefairn, it would at least send him to Nova Scotia.’ Perhaps, the Colonel thinks, Breakachie may be induced to inform against Fassifern! That culprit has only sent 100l. to Lochiel’s family in France, and has made Lochiel’s tenants work on his estate, instead of on the county roads.
These last were not hanging matters. And, somehow, Breakachie, a perfectly loyal gentleman, and kinsman of Cluny’s, did not give the desired information. The witnesses as to the suborning of Glenure’s murder by Fassifern would not kiss the book, or, perhaps, had never promised their evidence at all. Angus Cameron and Glenevis were discharged on bail, on July 3. No proof of treasonable correspondence, or suborned murder, or anything else existed, or could be found against Fassifern. Pickle, of course, could not be produced in Court. The Colonel does not conceal the discomfort of his reflections, and Government is perplexed as to the details of the process of ‘uprooting’ the representative of Lochiel. On June 10 Fassifern and Charles Stewart petitioned that they might be put on their trial. But what were they to be tried for? It was an awkward situation.
The resources of civilisation, however, were not exhausted. On August 6 the Duke of Argyll came to Edinburgh and, next day, took his seat in the Court of Session.
That day the Lord Advocate sprang a fresh charge on the accused. They might not have been holding treasonable correspondence, or even suborning murder, but they had been mixed up in—forgery! The Lord Advocate suspected that certain deeds had been forged, to substantiate claims made by Fassifern on Lochiel’s estate. These claims rested on old papers and bonds of various dates, from 1713 to 1748. There was ‘credible information’ (how obtained we shall learn) that five of these deeds were forged. Fassifern’s lawyer, Mr. Macfarlane (husband of pretty Mrs. Macfarlane who shot the Captain), had no longer the vouchers, the original papers from which he drew up the claims. These vouchers had been in a bag at Mr. Macfarlane’s house; but ‘some time in Summer’ (1752) Fassifern (being in Edinburgh) had sent for the bag, and had returned it in a few hours.
The papers were no longer in it. Fassifern, being examined, could remember having abstracted no such deeds as interested the Court. Next day Fassifern asked for a copy of his statement, ‘as he was apprehensive he might have inadvertently fallen into some mistakes in the hurry of the examination, which he was extremely desirous to rectify.’ The Lords refused his petition: he might have a copy of his examination ‘when he is brought upon trial.’ Next day he was charged with being guilty, or ‘art and part in forging the deeds, or of using them, knowing them to be forged.’ He was to be detained in prison till his trial.
He protested that he had already lain in prison for three months, on a charge (Pickle’s) of ‘being privy to unlawful designs carried on by disaffected persons’—namely, a rising to follow on the kidnapping of the Royal Family. He ‘has reason to believe that no such prosecution is seriously intended,’ which is pretty obvious, Pickle not being producible, but absent, at that very hour, in France, with Prince Charles! Moreover Fassifern was not told on whose information he was examined, though he was ‘heckled’ for several hours.
The charge of forgery was, in fact, based, as usual, on the evidence of an Informer, whom we need not name. Here is a report of his accusations:—
‘... Says he has been certainly informed that Fassfarn caused Forge several Grounds of Debt, in Order to be the Foundation of Claims upon the Estate of Lochiel, some of which were written by Charles Stewart present prisoner in the Castle, and Lochiel’s name was Forged by one Allan Cameron of Landavrae, who could write like him, and there were Forced Discharges by Lochiel to his Tenants for Crops in 1746 and Proceedings in Order to prevent the Government from getting payment of the Rent of 1746 and arrears.’
Says on knowing this he ‘instantly told Crawfurd’!
Now even the Government’s plea against Fassifern says no word of ‘forged discharges of Lochiel to his tenants!’[102]
The interest of this case is partly the mystery—had Fassifern really been concerned in tampering with documents?—partly the procedure, which we know had political motives, and was iniquitous in method. As to Fassifern’s guilt, if any, we are not likely to learn the truth; as to the kind of justice he got—there can only be one opinion.
On August 10 Fassifern was ‘ordained’ to receive a full copy of his examination. He was anxious that the evidence of an aged solicitor, Alexander Stewart, in Appin, a man over eighty, and unable to travel, should be taken by commission. This Stewart had written, or witnessed, several of the old disputed deeds, and was the only person alive able to testify, of his own knowledge, to their authenticity. Fassifern also remonstrated against being described, in the Lord Advocate’s charge, as ‘the immediate younger brother of Donald Cameron, late of Lochiel, attainted.’ He ‘ventures to hope that this is not meant to make a point of dittay.’ It was obviously meant to suggest prejudice. He asked for bail, after his already long imprisonment. Bail was refused by the Lords of Session, nor would they examine Alexander Stewart by commission; but they promised to remove Fassifern from the Castle to the Tolbooth. The full charges, or ‘improbatory articles’ against him, he was not to receive.
On August 24 the prisoner once more protested against ‘the practice of dropping out charges one after the other,’ which unpleasantly resembles the system of Titus Oates. If the Government, as appears certain, had this accusation of forgery pigeon-holed before they locked up the prisoner in May, why did they not bring it forward at first? Fassifern’s imprisonment, he justly remarks, ‘approaches to a kind of torture.’ He is denied the free use of pen and ink, so necessary in his preparation of a defence. An armed sentinel is in his room day and night. This petition was so far successful that pen and ink were given, but what he wrote was inspected, and even his lawyer’s chief clerk, Mr. Flockhart, could only visit him by special license. He was allowed to take the air, under a guard, but he seems to have been detained in the Castle, at least the Deputy-Governor is charged to remove the armed sentinel.
In January 1754 articles of accusation were placed before the Lords of Session, and witnesses were examined, including old Alexander Stewart, who was brought from Appin ‘in a chaise.’ He attested that, as early as 1713, he had written and witnessed some of the deeds, and again in 1728. Appin (whom one of the deeds especially concerned) gave evidence as to the authenticity of others, and quoted Lochiel’s remarks to him, in 1746, about 1,000l. borrowed from Fassifern in 1741, and a bond given for the money by himself. He averred that Charles Stewart, writer in Banavie, accused now of forging that instrument, had really written and witnessed it, with Torcastle (in exile) and others (Culchenna and Lundavra), now dead. On these grounds Fassifern petitioned for bail. He had lain in prison for ten months, and his eyes were so impaired that he could not see to read. He must sink sub squalore carceris, and be ‘uprooted’ in earnest.
To all this plea it was replied ‘that many persons, even of those who would not do injustice in private affairs, are too easily induced to countenance an injustice done to the public’—that is, by getting public money out of the forfeited estates. Fassifern, with his ‘connections and influence, might, if at liberty, use means to prevent discoveries.’ There is thus one law (an unpleasant law) for the rich, and another for the poor. Finally Fassifern’s ‘coolness and silence on the loss of papers of such consequence, notwithstanding his being confessedly a sensible careful man, were mentioned as very suspicious circumstances.’
No doubt they are suspicious, but that a ‘sensible careful man,’ of the best family, should, as charged, forge a bond of 90l. from his own gardener, still in his service, is also a very improbable kind of accusation. Fassifern and Charles Stewart were, therefore, left sub squalore carceris (March 6, 1754).
In August 1754 they again petitioned for bail. They had lain in gaol for fifteen months on no capital charge. ‘There is not one of the deeds under challenge that does not seem to be supported by unimpeachable evidence,’ as of Appin, a man of honour, and old Alexander Stewart. ‘They have suffered punishment beyond bounds already, without example, and since The Happy Revolution, neither heard of nor dreamed of in our neighbouring country,’ England.
Bail was not granted, and the Lord Advocate told a very extraordinary and, it may be said, inconsistent tale. His witnesses, he alleged, ‘have thought fit to stand a second diligence for compelling them to appear, and, though wrote to, have not given any answer.’ Of course there may be two interpretations of this reluctance, or even three. The witnesses may be coerced by local sentiment, or may not care to take oath to their evidence, or may have reason to suppose that they are not really wanted, as the Crown manifestly merely wishes to keep Fassifern out of his own country. The evidence of one informer has been given as to forged discharges of Lochiel’s. The Government, however, dropped that slander, while keeping up other charges, not supported by evidence given in Court.
The Advocate then carries back the origin of the trouble to the Loch Arkaig treasure. In some quarrel about this, a person was ‘heard to declare, that, in self defence, he would make known to persons in the King’s service what he knew, or had learned, concerning forged deeds prepared by Fassfern and Charles Stewart.’ This information he actually gave to Colonel Crawfurd. This was certainly one of the witnesses who would not answer to his subpœna, or come to the trial in spite of repeated ‘diligences.’ Lochaber was not likely to be a happy home for him afterwards; Lochaber no more! would probably be the burden of his song. Even Glenevis had three shots fired at him, in November 1752, between Fort William and his own house. So he alleges in a memorial, or petition, in the State Papers. The Colonel then sent for Charles Stewart, who had been introduced to him as a fit person for managing prosecutions against wearers of the philabeg. Charles Stewart, before the arrest of Fassifern, gave Colonel Crawfurd, at Fort William, a written set of Remarks on Fassifern’s claims, impeaching the authenticity of those to which Appin and Charles Stewart had sworn, including the gardener’s 90l. But Charles Stewart, when examined before the Lords, withdrew all this, and vowed that he had already denied it to the Colonel. When shown the written statement, he acknowledged that it was in his hand, but that he had written it ‘to pacify the Colonel, who was then in a great rage.’ For, in early summer, 1752, ‘a very hot inquiry was going on touching the murder of Glenure.’ Relations of Charles Stewart were imprisoned, and Colonel Crawfurd, interrogating Charles on the claims of Fassifern, told him that he, Charles, ‘was suspected of some accession to Glenure’s murder, and was to be imprisoned if he did not speak out, and make discoveries against the claims upon Lochiel’s forfeiture.’ Charles ‘cannot affirm’ that he did not ‘soothe Col. Crawfurd, who appeared to be in great passion,’ by telling tales against the claims, but rather suspects that he did. But, if he did, he admits that he lied, ‘in the confusion and terror he was then in.’ So far, the evidence before the Court is that of a witness who declines to be sworn, and of a prisoner who withdraws testimony extorted by threats.
The Lord Advocate next quoted a letter to Fassifern, from his Edinburgh agent, Mr. Macfarlane, of December 1751—that is, shortly after Fassifern’s release in the affair of the treasure. Mr. Macfarlane obscurely warns him in this letter ‘not to be carried, for the sake of a small paultry sum of money into difficulties.’ ‘Mines were to be sprung,’ ‘odd appellations are given,’ phrases which may, or may not, refer to the business of the French gold.
The Advocate then told how Fassifern, in summer, 1752, a year before his arrest in 1753, got his bag of papers from Mr. Macfarlane and returned it, since when no mortal has seen the incriminated deeds. This, of course, is the crucial point; but Mr. Macfarlane had himself prepared Fassifern’s claim from the very deeds which, having disappeared, are now said to have been recently forged. Mr. Macfarlane can have seen nothing suspicious in them, or he would not have made them the basis of a claim drawn up by himself. His suspicions of 1751 would have revived, and he would have abandoned the case. He still acts daily for Fassifern, but Fassifern has not recovered the documents, nor tried seriously to recover them.
On these grounds bail was again refused.
No decision was arrived at by the Lords of Session till January 1755. By that time all danger from Jacobitism was over. Charles was deserted by Prussia, by the Earl Marischal, and by his English adherents. The Lords found Fassifern guilty of abstracting his own papers, from the bag in Mr. Macfarlane’s custody. These papers it was inferred, were forged. He was sentenced to ten years of banishment, which he passed at Alnwick. Charles Stewart was deprived of his office of notary public. ‘Some of the Lords were of opinion that there was not a proof of guilt sufficient to infer any punishment. But others were of a different opinion.’ In Fassifern’s plea he complained of Colonel Crawfurd’s frequent examinations of Charles Stewart, and of a present of 10l. made by him to that notary.
Innocent or guilty, Fassifern was ‘uprooted, which is what we ought chiefly to have in view,’ to quote Colonel Crawfurd. The gross oppressiveness of the proceedings, the unexplained delays, the series of charges ‘dropped out,’ the bullying and cajoling of prisoners under examination, the unconcealed political motive, and the rewards of farms which, we learn, were given to the informers, are all characteristic of justice in Scotland after Culloden. The improbability of the charge, against ‘a sensible careful man,’ must be set against the mystery of the disappearance of the papers. In that disappearance the ‘uprooters’ had, of course, no less interest than the accused. After nearly two years sub squalore carceris, Fassifern was condemned for suborning the forgery of papers not in evidence. In fact, after all the schemes for his uprooting, he was (in cricketing phrase) ‘given out’—several of the Fifteen dissenting—‘for obstructing the field.’ What is the legal name for this offence?
This affair had lingered on from May 1753 to January 1755 before the Fifteen, the Lords of Session. It is probable that a jury, disgusted by the military methods of extorting evidence, would have made short work of the case, and acquitted Fassifern. Of this temper in a jury we have a curious contemporary instance. Sir Walter Scott printed for the Bannatyne Club the trial, in June 1754, of Duncan Terig, or Clerk, and Alexander Bain Macdonald, for the murder of Sergeant Davies, of Guise’s regiment, in 1749, on Christie Hill, in Braemar. There was really no doubt of the guilt of the accused. Scott, who knew one of their counsel, says that they themselves were convinced of the fact. But two Highland witnesses told a story of the murdered sergeant’s ghost, which appeared to them in 1750. By making fun of this apparition, the advocates for the defence, Scott says, secured an acquittal in face of the evidence.
Probably the jury had another motive—namely, indignation at military extortion of evidence. A certain Ensign Small has been mentioned. He seems to have been an astute and energetic man. We find him everywhere in the Cumberland Papers. He it was who, soon after Culloden, arrested the Barisdales in a cave, and took their swords. In 1749 he arrested Barisdale on his return from France. He pursued Lochgarry (after Dr. Cameron’s arrest) into England, and searched the vessels leaving the ports of the East Coast. We find him in the Islands, mixing with the people in disguise, and reporting their murmurs and their curses on the Chiefs and the Prince. In Knoydart he notes that the commons have lost their taste for a rising. Small was rewarded by a factorship on the forfeited estates of Cluny and Robertson of Strowan, and exerted himself to procure the condemnation of the murderers of Sergeant Davies.
Now on June 14, 1754, Mr. Alexander Lockhart, one of the counsel for the accused, laid a complaint against Small before the Court of Session. By Small’s instigation, Lockhart said, Terig and Macdonald were charged with the crime. Small had sought out and privately examined witnesses, ‘giving them an obligation to stand between them and any hazard they might incur thereby’—such protection was very necessary. ‘He endeavoured to intimidate such as would not say such strong things as he wished, or expected.’ Lockhart asks ‘how far these practices’ (the very practices employed to ‘uproot’ Fassifern) ‘should be tolerated?’ Moreover, Small had been swaggering with a sword, had stopped Lockhart in the Parliament Close, had insulted, challenged him, and shaken a stick over his head: ‘which, if he meant to resent, he would be at no loss to find out where the said James Small lived.’
Small replied that, after doing his best to bring Clerk and Macdonald to trial, his character had been blackened by Lockhart before the jury, as having pursued the accused for private reasons of malice. As an officer and a gentleman, believing in his heart that the accused were guilty (which they undoubtedly were), he had resented the license of Lockhart.
Small was found guilty of contempt, bound over to keep the peace, and obliged to apologise.
Meanwhile General Bland, Governor of Edinburgh Castle, justified Ensign Small in a letter to the English Ministry. Lockhart, the General denounces as a ‘famous foul-mouthed Jacobite advocate.’ He had ‘concerted’ his abuse of the Ensign in court ‘with his Jacobite fraternity.’ The Ensign had very properly ‘taken him by the nose, and called him a scoundrell. He took it quietly.’ If Lockhart is not warned, his bones will be broken. The General has used his influence with the judges to secure easy terms for the loyal Ensign.[103]
The docile judges, ‘the Fifteen,’ had accepted evidence extorted by military violence in what was really a political case, that of Fassifern. But it is clear that the jury, in the case of the Sergeant’s murder, had resented such intimidation, as denounced by Lockhart, and this resentment, rather than the ghost story, probably procured the acquittal of two undeniable robbers and murderers, Terig, or Clerk, and Macdonald.[104]
Another curious instance of the methods of Government occurs in the case of James Mohr. It was generally suspected that Government connived at his escape from Edinburgh Castle in the disguise of a cobbler (November 16, 1752). The Government, however, broke the lieutenants of the guard, deprived the sergeant of his stripes, and whipped the porter.
But we find a remarkable letter of General Churchill’s,[105] saying that ‘James Mohr had been taken up on the abduction charge,’ and was extremely anxious to make disclosures. That his recent behaviour cannot allow him to be believed unless he is allowed to suppose ‘his life is at stake.’ That ‘should your Grace think proper to employ him, the great difficulty is to bring about his liberation without raising a suspicion of the Cause, nor can it be so effectually done as by giveing private orders to a Party of the Troops employed in escorting him to favour his escape.’
If this suggestion was acted on later, if James was allowed to escape from Edinburgh Castle that he might become a spy, as he did, the lieutenants, the sergeant, and the porter were very scurvily treated. The game of justice was not played with much scrupulousness by the English Government.