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THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
\
LETTERS
T O
LORD MANSFIELD.
CutcieO in tit l^nlLScoU of tfit Gompanu of ^tnmnm, ntcojbins
to as of parliament.
LETTERS
T O
THE RIGHT HONOURABLE
L O
MANSFIELD,
FROM
ANDREW STUART, Efq;
LONDON:
riintcd in tlic Month of January 177,3.
f^m^i^aea M ' U B a m
LETTER I.
My Lord,
T is not from want of attention to your Lordfliip, that I have
hitherto abftaincd from doing myfclf the honour of writing to
you. With great truth I can fay it, you have not been abfcnt from
my thoughts, during any one complcat day, for more than three
years paft; but the fubjcdt on which I meant to addrefs your Lord-
fliip, was too interefting, and agitated me too flrongly, to admit of
:ny commencing this ccrrcfpondence fooner.
A long courfe of bad h.calth, increafcd perhaps by too much fenfi-
bility in refped to certain events, with which your Lordfliip {lands
deeply conneded, made it impoflible for me to fatisfy, fo foon as I
wiflied, the carneft dchre of communicating to you, my genuine
fentiments; they relate to a fubject very interefting both to your
Lordfhip and to me, and in many refpcd;s interefting to every lover
of juftice or humanity.
Thofe who are injured have a right to complain; and it is the
peculiar felicity of the natives of this idand, that there are no re-
llraints upon the communication of truth, excepting thofe which
the rules of dcjcncv, and of attention to that good order which is
i) ciicntial to tl;j VN-cll-bcing of every ftatc, may neceiTarily re-
r< KeftrailitB
( = )
Reflraints fuch as tliefe, every ingenuous mind mufl feel within
Itfelf, Indcpcadent of the dictates of authority, or pofitive infti-
tution.
If in the courlc of this correfpondcnce, any expreflion efcape me,
inconfillent with the refpe^ft due to your Lordfliip's fituation, and
diftlnguinicd talents, fure I am it is far remote from my intention ;
no man can have a higher admiration of your extenfive genius and
ablUties than I have ; and I can appeal to all who know me,
whether my principles, as well as the natural turn of my mind
and temper, have not ever difpofcd me to be a fmcere lover of
order.
Nothing appears to me more difgufting and deteftable than thofe
abufcs of liberty which we have daily occafion to obferve, and thofe
illiberal and Indifcriminate attacks made upon all characters, how-
ever refpeclable. They are doubly deteflable, both on account of
their Intrinfic enormity, and becaufe they proceed not from the
heart, or the real opinion of the authors, but are the fuggeftions of
faction or of malice, conveyed to the public by thofe, who meanly
proflitute their talents, in writing for others, what they neither think
nor feel thcmfclvcs.
What T have to offer to your Lordihip, relates not to public af-
fairs, or to your conduct in the political line of this country ; it
relates to your condu^ft in the public adminiftration of juftice, an
(:l)jC(fL infcri(;r to none in its importance and extenfive confequen-
c;cs, and in wliicli every member of tlie community is deeply in-
terfiled : ]•>« cry man has a right to attend to all the fteps of your
conduct in tliat capacity, and to declare to yourfclf, and to the
world, tlic rcfiilt of liis obfcrvations. If they are founded an genuine
facl?> it io of in^.portance that they (hould net be concealed j if igno-
rantly;
t 3 )
rantly, or ivickedly, he endeavour to mirreprcfent your LorJiKlp,
the attempt will defervedly recoil upon hlmfelf to his own difgrace^
and inftead of dimlniHiing-, will only fcrve to add luftrc to your
charadter.
The particular opportunities I have had of attending minutely to
your condud; In your judicial capacity upon fome memorable occa-
fions, would of themfelves be fufiicient to entitle me to communicate
my obfcrvations, and to exerclfe that right which belongs to every
member of the community in this free and enlightened country.
But, my Lord, if fuch a right flood in need of additional aid, 1
have peculiar reafons and motives, which all mankind will allow to
be fufficient to authorife this addrefs.
When it fhall appear that I have had the flrongefl: reafon that
ever man had to complain of injury and injuflice received from your
Lordflilp; When it fhall be fliewn that you availed yourfelf of your
exalted judicial fituation to attack in a public aiTembly a private
man who had no opportunity either of obviating that attack, or of
anfweringfor himfelf ; And when the flagrant injuftice of this attempt
fhall, in the courfe of thefe letters, be laid open to publick view,
it will then be allowed, that my right thus to addrefs your Lordfliip
is of the flrongcft and moft unqueflionable nature.
After tracing the great outlines of a certain memorable caufe, irl
which this facrifice of me was attempted, with a view, perhaps, to re-
eoncilc the world to the opinion you gave in that caufe, I fhall have
occafion, towards the clofe of this corrcfpondence, to flate my own
fituation and condu6l in that contefl, to give the reafons which have
hitherto prevented me from taking this method of doing myfelf juf-^
tice, and to flicvy- the impofTibility of my remaining longer filent,
B 2 without
X 4 ;
without feem'ng to acqulcice ia thofc things which I have fo jufli^
rcafon to complain cf.
What I have to fay with regard to myfelf in thcfe particulars flialL
be poRponcd until I have examined your Lordfliip's condud in your
judicial capacity, particularly in certain points conneded with the
attack you endeavoured to make upon me.
In that examination, I mufl: be permitted to review your condud:
with a becoming freedom. I fiiall confine myiclf to facls which
coniill: ^vitli i:iy own knowledge; and thefe fliall nclilier be exag-
gerated nor extenuated. If in any of them yourLordfnip can fiiev/
me tliat I am miiiaken, I fliall be proud to take the hrft opportunity
Ci corrcc"L!ng my error. I mean to fhite fairly the fads which I
kno'.v and believe to be true, and to lay before you, without referve,
t'lic 2-eniiinc reiledions and emotions of mv breaft refultin,^^ from thefe
fads. This may perhaps fometimes produce a little v/armth, but^.
I liope, v^ill never carry me beyond the bounds of good man-
ners.
During feveral years, I embraced every opportunity that ofFered^
of attending to yc/ar Lordlhip's dccifions ar.d argumiCnts, particu-
Jirly in a great aflcmbly, vrhcrc your talents have long been juftly
admired ; the ability and chiqucnce ever cor.lpicuous in your rea-
fjni:i?s alvravs capti^'atcd mc, aiid Ici.l^rn iailccl to produce ftrong
;.d:iiii:ition (A lucii fiipcrior genius; but I mufi; be allowed lo f"ay,
thr.t V. '■.en ilic circinri[t;inces or the cales that came before you hap-
]T;.:.e-! to be partieulariy knuwn to mc, and v.hcn I had an oppor-
t';i:::\' '■■ e.ii^v; jii;:;^ your arginiienis and eonehid wiih men oi ahdi-
tie:.. ;i.. J w^'i acoiiainted wiiIi the circiimfanees, and whole iuda-
incntb you \voiod v(;i!!\cit aliow to he reipcdallc, v,'C have :irc-
<;u.ntiy iound rcai^^n to coiihnc cur adn:lratlon to t'\c ab'iTuy of the
rcafonin^s
( 5 )
fcafonings macTe iifc of by your Lordfhip in fupport of the fide you
efpoufed. — Our convidlon v/as not on the dime fide v/ith our admi-
ration.
How could it be otherwife, iny Lord, when we could not but ob-
ferve, that the fame rules of juftice vrcrc not applied to fnnilar
cal'es ; and that, without any difference of circamftances to autho-
riic it, your modes of reafcning were not uniform ? 1 hey were va-
ried at pleafure, always able, and generally fuccefsful.
Tocounfcl at the bar, fuch variety is permitted. Their pleadings
do not cRablKh precedents, and in them an eagerneis for the fuc-
cefs of their client is allowable ; but a judge can have no clicntj — -
ought to have no friend in his judicial capacity.
In the times of Lord Kardwicke, and of other eminent judge?,
whofe names deferve ever to be refpedcd in Britain, it was not a
difficult matter for men of knowledge and experience to foretel
what decilion would be given on particular cafes; becaufe they
knew, that tliefc jud,G;es, revering the lavv's of their country, en-
deavoured to make jurifprudcnce a fjience founded on folid and
fixed principles : they ftudlcd uniformity in their decilions, prefer-
ring It to the vain admiration altending tf.c appearances of iuperior
genius, or the applauic of individuals, v,''io might pront by the
deviations from ellabliilied orincioles.
Of late years the caio has been miicli othevvay? : tl;c bcH; and
a])leil men, I am aifured, can fcarceiy ever ioretel upon v.-bat
groimds any important caufe will be tai-:en 110 and decided by
your Lordlhip ; and from wliat lias fallen under my own obferva-
rion, in f)me remarkable indanccs, I cannct relule niy alf^nt to tln-^
prevailing opinion. 6
Ocneral
t 6 )
General aflcitlons, ^Yithout fpeclf'ying; particular fads, defervd
Iklle credit, and arc always unfatisfadory. It is my intention to recal
to your memory the particulars of your condud and the arguments
you employed in two very memorahle and important caufes lately
decided ; both of them caufes which greatly excited the public
attention; and as they will hereafter be confidered as monuments
of the principles eftablifhed by your Lordfliip in one of the mod ca-
pital branches of the laws and cuiloms of this country, to wit, the
7-uIds of ci'ldence, I fliall, after premifmg a few general obferva*-
tions, endeavour to give as brielly as pofTible a diftind view of the
fads, and of the arguments made ufe of by your Lordihip in both
cafes.
I had been accuftomed to think, tliat, in judging upon evidence,
n matter of fiich iniinite importance in the conftitution and jurif-
prudcnce of every well-regulated ftate, there were certain rules efla-
blillied, which in every court, and in every country, were received
as mod invaluable guides for the difcovcry of truth. For inflance,
when it appeared that on the one fide there was forgery and fraud
in fome of the material parts of the evidence, and efpecially when
that forgery could be traced up to its fource, and difcovcred to be
the contrivance of the very perfon whole guilt or innocence was tlic
ohjcd of iiiquiry, in fuch a cafe, I have always undcrftood it to be
an edabliihed rule, that the whole of the evidence on that fide of
tb.c (|ueflion muft be deeply affedcd by a deliberate falfehood of
tliis nature.
The natural and ncccllary cffed of fuch a pradice, upon the
minds ot iud,c;cs pofllifcd ot dllcernment and candour, is to make
them extremely fufpicious of all the evidence tending to the fame
conch'.lica with the forged evidence; parole tcllimony in iupport
of it will be little regarded ; the forgery of the written evidence
2 contaminates
( 7 )
contaminates the teflimony of the witnefTjs in favour of the party
who has made ufe of that forgery, and nothing will gain credit on
that fide, but either clear and conclufivc written evidence, free
from fufplcion, or the teflimony of fuch a number of refpedable,
difintercfled, and confident wltnefTes, fpcaking to declfive and cir-
cunidantiate facls, as leaves no room to doubt of the certainty of
their knov/ledge, and the truth of their allertions.
On the other hand, the proof of a forgery fuch as has been de-
fcrlbed, muft alfo have the effedt to gain a more ready admlffion to
the evidence of the other party. If that evidence be confident, if it
be eftabllflied by the concurring teflimony of a croud of wltnefTes,
and fupported by various articles of written and unfufpedled evi-
dence, the bias of a fair mind will be totally In favour of the party
producing fuch authorities, and againft tliat which had been obliged
to have rccourfe to the forged evidence.
Thefe, my Lord, are the rules which I had been taught to believe
always had obtained, and ever w^ould obtain. In queflions of this
nature. — But it was my fate to hear principles of an oppofite ten-
dency eftabllflied by your Lordfliip on a very memorable occafion.
This occurred In the decifion of one of the m.ofl: Important caufcs
that ever came before a court of judicature : yet. If there ever exifted
a cafe wherein the above-mentioned principles, in their fulleft extent,,
ought to have operated and governed, it was in that caufe. They
did receive the cfFedl; and operation due to them in the court where
the caufc was hrfh judged, and where the evidence had been attended
to and examined during the courfe of fevcral years ; but when it
came to be judged In the laft rciort, the fentimcnts and doctrine then
delivered l)y your Lordfliip, proceeded on a very different plan. I
cannot fuppofc that this happened from the true principles being
unknown to you; it mull have been from forae other caufe.
Your
( 5 )
Your Lordfhlp can be at no lofs to dircovcr the cafe I allude to^
for there are in the Douglas Cause fome clrcumftances which,
iflmirtcike not, mufl, at leafl to the extent of your feelings, pro-
duce ftrong fenfations in your l>rc:ift, whenever alliifions^re made to
that dccifion.
Tlie fate and circuinrtanccf; or tliat meniorable caufc are recent in
tlie nnnds of every one, and I truil tliat tliey will long be re-
membered, as well as the part tabcn by your Lordfhip during tli.e
v.hole progrefs, and at the fmal decirion of that litigation.
Short aj tlie interval has been fnce tliat decifcn, there has already
occurred another mem.orable caule, which came under the confidera-
tionof the fame tribunal, the Houfe of Lords, oftener than once during
t'le courle of tlie year 1771, I mean the An^lcfca, Cciufc^ in whlchj
as in that of Douglas, the deciiion depended upon tlie canvaffmg
of evidence, and upon the cfiabliPiiing of jufl: principles for the di-
■L:clion of the judgm.ent in vrciglnng the aufnoriiies produced en
Qi-
r:
both lirlcG.
In liic one cafe, as v/cll as in the other, it became necc[far^' to
coniider the confequenccs of a /:/-jtVT ^'/hicli had been employed in
i :mc 01 tlic material parts of tiie evidence; fur, befides otlier cir-
cumllanccs of Inniiitude between tiic two cafes, tlierc v/as tliis re-
rr:^iha' :c cMie, that in eacli, forgery was objccled to the moll
niate-.-'.ii part of tlic wr'ttcn evidence p.roduccd in fuppHnl of the flate
i:r i:i;,uion cbtimed l)y tlie perfjn whufe Ihite v/as the objed of the
<!' llt-iL
There w.:3 tliis diiTcrcncc Irrvevcr, tbat in the one cale tliere was
r;:dy a liilpiLi'.n, v,\ (hvid.d c.;f:non \\\\\\ re.oird to the for^L'ry^ in
the oiher it was cl^ar a.i..; .i'lo^'p^ued. I'iie h;rj-ery in tlic cafe of
i^judefea,
( 9 )
Anglclca, as It depended chiefly on r;ci:].ir Infpccllon, appcirrd to
fomc palpable and evident ; otlicrs were ([uitc of a diflcrent opinion,
and fcvcral of the noble Lords thou2:ht that the evidence amounted
only to a fufpicion of that crime.
Your Lordfhip knows that it was cliiefly, if not entirely, on
account of this forcrcry, and the inikicnce of it on the other Darts
of the evidence, that the claimant in the An;;-lcfea caufe was denied
the ilate and rights of fon of the Earl of Anglcica; and this too, at
the diftance of near iix years after he had been put in podelfion of
the Irilli peerage o[ Vifcount Valenlia, in conic'quence of a report
made by the Attorney and Solicitor General of Ireland, which
having been tranfmitted to his Majefty, the chiiniant was fummoncd
to the parliament of Ireland, and, in December 1765, took his Icat
as Vifcount \^alcntia and Baron of Mount Norris in tliat kingdom.
Your Lordfliip alfo knows, that in the Douglas caufe there was
not only :x. fufpicio?!^ but a certainty of forgery? traced to the very
pcrfon on whofe guilt or innocence the caufe muft depend, proved
by the clcareif evidence, and even acknowledged at the bar by the
counfel on that fide of the queftion; notwithftanding which, the
perfon whofe intereil you fupported in that caufe, was by your Lord-
fliip declared to be the fon of Lady Jane Douglas and of Sir John
Stewart, the author of the forged evidence relative to Ids birth ;
and, in conlequcncc of the judgment pronounced in the Court of
appeal, now enjoys the name and wealth of the Douglas family.
To make tlic contrad more compleat, this happened after the
pretenfions of llie c];\imant, now Mr. Douglas, liad been canvalTcd
fcvcral yearr, h\ the Supreme G^urt of Judicature in Scotland, v\']iere
it \vas I'dcir.n'y decided that he was not the ion of Lady Jane
Douelas.
C Theie
( i^ )
T'lcfc t\T,^. ciiies, io (lilTcrcnt from each ollicr in ihcir fate, con-
tain ci:.:Li!r;'h'.nccs wliich, by comparifon, tend mutually to tlirow
light on cr.cli ether; aiul as tlicy will aifill: ns in difcovering your
Lordfhip's principles and [)ra'rLicc in matters of evidence, I mud
beg leave to recall tliem a little more parti. ulai-ly to your memory.
In the Anglefen caufe, the queilion was, wliether the perfou
clai^rdng tiie dignities and honours belonging to the family of An-
giei'ea, was the legitimate fon of the late Earl of Anglefea, or was
of fp-urious birth ; and this cp.icfiion depended upon the truth of th3
iaci" maintained on the part of the claimant, tluit the Earl of Angle-
fea was married to the prcient Countefs Dowager of Anglefea in the
year 1741, prior to the birlh of tlie claimant, their fon, who was
born in- the year i 744.
In fupport of this faCf of the marriage In the year 1741, there
%vas produced, befides a variety of parole evidence, a certilicata
figned !)y the clergyman Lawrence Neal, Vv'ho aflcrted that he had
married them on tlie ij'^h September 1741, to which was fiibjoined
the fubfcriptions of two witneflcs to the marriage^ Nixon Donovan
and Charles Kavanagh. This certificate fell under the fufpicion of
forgery, in that part of it which related to tlie fubfcriptions of tlie
two witnefles, particularly the fubfcription of Charles Kavanagh,
which from ocular infpeQion, and the compariion of it with the
certain and acknov/ledged fubfcriptions of Charles Kavanagh, and
from other circumflances, appeared to be forged.
In the Douglas caufe, tlie queftion was u'licther Lady Jane Dt)ug»
las, in the 511!: year of her age, v;as dehvered of male tv.dris at
Paris, on tlrj loth day of July i-^h', in the lioufe of a IVLidam le
Ihun^ and by the alliliancc of a Pierre la MariT, Accouelicur. On
the
( It )
tiic truth of ihcic fads depended the fihation and ilate claimed by
Mr. Doiighiy.
It was denied by his opponents that he was the Ton of Lady Jane
Pouglac- : they maintained, that the whole ilory of Lady Jane's
pretended deUvery, w^as a fraudulent contrivance between her and
her hiin)and, and their confident Helen llewit. No evidence what-
ever, either written or verbal, hefides the aflertioi\s of thefc three
perfons, was produced in proof of the actual delivery at Paris; but
there were produced in fupport of it, four letters, written in the name
of the fuppofed man-midwife I'ierre la Marrc, and addrefled to Sir
John Stewart. One of the letters was, in fubftance, a certificate of
the delivery, of the date on wdiich it was fuppofed to have happened,
and of its being a delivery of male twins, with feveral other effentlal
circumflances. All thefe four letters w^ere, in the courfe of the trial,
inconteflably proved, and at lad acknowledged to have beenyc?r^^^.
Thus the motive and ohjcd: of thejlr^eries in each cafe was the
i^anic, — namely, to fupport the capital fad:s in quedion, — in the one
.'•afe, the Marriage, in the other, the Delivery.
But the forgery in the Anglefea caufe was in fupport of a very
credible fact, the marriage of the flither and mother of the claimant
in the year 1741; a fact, which contained in itfelf nothing uima-
lural, improbable, or diilicuh of behcf.
The forgery in the Douglas caufe was in fupport of a moil: ex-*
traordinary facl. Lady Jane Douglas's delivery of two Ions at a birth.,
in the 51R year of her age.
To have a child at that :igc is very uncommon. 7'hat in her fitn-
iiiion with her brother, the Duke of Douglas, it Ihould be a fon in-
C z iVixd
( I- )
fiend of a daiiglitcr, \Yas fortunate; but that two fons fliould be
]^:-0':l:clc1 at a bi;-:]i, where t'ney were fo much wanted, and as b.cr
i^iii-iruils, in this advar.ced period of her age, approached io much to
the marvelkva.-, as to be in a very high degree improbable. A face,
io circumilanced, as that the hiilory of lumian nature affords very
tew ir any inihnic^^s trnlv limilar, mud be ac]:n(;w]cgcd not only
to be improbable, but incredible, until it be well atteded.
If it be true, that a very improbable or extraordinary fafl requires
to be fupported by evidence unfufpccled, and much lironger than a
prcibable one, it muft alfobe true, that when falfe or forged evidence
is employed in fupport of that improbable fad:, the influence of it,
upon all the other parts of the evidence produced in fupport of the
fame facf, ought to be more powerful and decifive than in the cafe
of a probable and natural one.
In the Anglefea caufe, neither Lord Anglefea nor his wife were
the perfons who forged the certificate of tlie marriage in 1741. It
is all in the hand-writing of Laurence Neal the clergyman, who is
hippoied to has-e married them in 1741; and the only parts of the
certificate thought to be forged, are the fubfcriptions of the two wit-
ncffes to it, particubirly the fubfcription of Charles Kavanagh :
neither were thefe fubfcriptions fuppofed to be forged either by Lord
or Lady Anglefea perfonally, but this forged certificate was found in
the cuftodv of Lady Anglefea, where it is faid to liave remained from
the year 1741 to the year 1752, when firft produced, and it re-
mained in the fame hands till it vras depofited in the Spiritual Court
of Dublin in 1762.
In the Douglas caufe, the four forged letters were not forged by
indifferent perfons, or third parties, but by Sir John Stewart him-
felf, the fuppofed father of the claimant in that caufe. This fad
was proved by the moil irrefiftiblc evidcace, aiad in the courfc of the
caufe
( >^ )
can fc was acknowledged by the counfcl on that fide. Tlie par-
ticipation of Lady Jane in that forgery, wa.s ahb proved by con-
vincinfj; circinnuances, and all thcfe for":cd letters were found in tlic
euilody of Lady Jane Douglas. They were produced in tlie trial,
as proofs in favour of the pcrfon clainfmg to l)e her fon. Sir Joiui
Stewart was examined with regard to tlieni, and f)lemnly and re-
peatedly maintained, before a court of juilice, that two of tliem
VvXre originals, and two of them copies of letters which he had
adnally received from Pierre La Marre ; the faKLood of both which
aiTertions, became io palpable in the courfe of the trial, that the
whole account given by him of thefe letters, and given with a folem-
nity equal to an oath, was admitted to be utterly void of truth.
In the Anglefea caufe there was but one fmgle a£l of forgery,
tiiat of the iubfcriptions of the witnefles to the certificate, which
confifts but of three lines relative to one fingle fad:, the marriage
of Lord and Lady Anglefea on the 15th September 1 741.
L:i the Douglas caufe there was a complication of forgeries : For, .
befides a variety of material letters from Sir John Stewart, falfely
dated from Rbeinis, at the critical period in July 1748, while he and
Lady Jane were at Paris^ and one upon the fame plan frojn Lady
jane herfelf, there were four fcvcral letters prc3duced, which, trom
tlieir contents and fubicription, had the appearance of letters from the
perfon who had delivered Lady jane, but in facf were all of them
forged by Sir John Stewart himfelf ; three of them dated in the year
1749, and the lafl: of them dated in 1752. The contents of thefe let-
ters related to various eflential particulars : they were meant to fup-
port not only the delivery of Lady Jane of male twins, at Paris,
on the loth of July 1748, by the affiftance of Pierre La Marre,
and in prefence of certain witnefles, but alfo to fupport the extra-
ordinary fad" of one of the children's being left to the charge of
the
( >4 )
tlic marx-mlJ'.vlfc, during I 6 months, while tlic Infciut was feparatcd-
iVom his fnppuicd parenis, and inviliblc to all the reft of tlic world.