LIBRARY UNIVBRSITY OF V CALirOKNIA Digitized by the Internet Archive in 2008 with funding from IVIicrosoft Corporation http://www.archive.org/details/douglascauseOOsteurich motable Scottjgb grialg The Douglas Cause NOTABLE SCOTTISH TRIALS. Madeleine Smith* Edited by A. Duncan Smith, F.S.A. (Scot.), Advocate. City of Glasgow Bank Directors* Edited by William Wallace, Advo- cate, Sheriff-Substitute, Campbel- town. Dr. E. Pritchard. Edited by Wm, Roughead, W.S., Edinburgh. Etsgfoe Marie Chantrelle* Edited by A. Duncan Smith, F.S. A.(Scot.), Advocate. Deacon Brodie. Edited by Wm. Roughead, W.S., Edinburgh. James Stewart (The Appin Murder). Edited by David N. Mackay, Writer, Glasgow. A. J. Monson. Edited by J. W. More, B.A.(Oxon.), Advocate. The Douglas Cause* Edited by A. Francis Steuart, Advocate. Captain Porteous* Edited by Wm. Roughead, W.S.. Edinburgh. Lord Douglas. (Archibald Douglas of Douglas.) From a Mezzotint in the British Museum. ^The Douglas Cause EDITED BY A. Francis Steuart Advocate GLASGOW AND EDINBURGH WILLIAM HODGE & COMPANY PRINTED BT WILLIAM HODGE AND COMPANY GLASGOW AND EDINBURGH 1909 TO THE HONOURABLE LORD GUTHRIE THIS VOLUME IS BY KIND PERMISSION RESPECTFULLY DEDICATED BY THE EDITOR 517 PREFATORY NOTE. When Boswell was conversing with Dr. Johnson regarding " The Douglas Cause," he received this opinion.^ "And, Sir, you will not say that the Douglas Cause was a cause of easy decision, when it divided your Court as much as it could do, to be determined at all. When your judges are seven and seven, the casting vote of the President must be given on one side or the other ; no matter, for my argument, on which ; one or the other must be taken ; as when I am to move, there is no matter which leg I move first. And then. Sir, it was otherwise determined here. No, Sir, a more dubious determination of any question cannot be imagined." It is the history of this "determination" which is now presented to the reader by the Editor, and when he presents it, he desires to thank many friends for their kind assistance during its compilation. He has gratefully to acknowledge the help that he received from Mr. David Douglas, whose great age does not prevent him from taking a keen interest in the history of his family. He has also been assisted by the Hon. Mr. Justice Fletcher of Calcutta, in the early stages of his work, and by Mr. George Douglas Veitch of Eliock, to whom he is indebted for two illustrations. Two more illustrations make him thank Mr. Charles E. Green. He wishes to express his gratitude, moreover, to Messrs. Kenneth Douglas and Frank C. Nicholson for their kindly patience in giving him assistance with his proofs; and lastly, he desires sincerely to thank Mr. Horace Bleackley, whose store of knowledge of the literature of the eighteenth century has been so courteously and fully^ placed at his disposal. 1 Boswell's Life of Johnson, ii. 19. 2 See Appendix I. CONTENTS. PAGE Prefatory Note, vii Chronological Table, xi Introduction — I. Narrative of the Cause, 14 II. Historical Narrative, 23 Judgments in the Douglas Cause pronounced by the Court of Session of Scotland, 41 Speeches in the House of Lords, 136 APPENDICES. I. Illustrations of the Popular Versions of the Progress of the Douglas Cause, from the St. James's Chronicle and the Gazetteer and New Daily Advertiser, 181 II. Contemporary criticism of the two reports of the judgments pronounced in the Court of Session, 189 III. Letters of Lady Jane Douglas, 190 IV. "Jupiter" Carlyle's Account of the Trial in the House of Lords, - - 246 LIST OF ILLUSTRATIONS. 1. Archibald Douglas of Douglas, from a mezzotint, 2. Andrew Stuart, M.P., from a mezzotint after Reynolds, facing page 3. Lord Loughborough, from a print, - - * - 4. Old Menilmontant, from a print, .... 6. Paris at the time of the Douglas Cause, 6. Lord President Dundas, from a print after the portrait by Raeburn, . - - - - 7. Lord Kames, from a print, 8. Lord Alemore, from the portrait in the Parliament House, 9. Lord Eliock, from the painting by Raeburn, lent by G. D. Veitch, Esq. of Eliock, 10. Lord Stonefield, after John Kay, - - - - 11. Lord Gardenstone, after John Kay, 12. Lord Kennet, from the portrait by Martin in the Parliament House, 13. Lord Hailes, after John Kay, .... 14. Lord Monboddo, after John Kay, 15. Archibald Douglas of Douglas, supported by Lords Camden and Mansfield, from a mezzotint in the British Museum, published after the Trial, 16. The first Earl of Mansfield, from a print, 17. Lord Thurlow, from a mezzotint after Romney, - 18. A portion of Lord Eliock's MS. Notes in The Douglas Cause, 19. Lady Jane Douglas, from Percy Fitzgerald's "Lady Jean," Frontiapiece 16 20 30 32 40 56 72 80 84 98 106 124 136 142 146 172 190 CHEONOLOGICAL TABLE. 1698. 17 March— Birth of Lady Jane Douglas. 1720. Her betrothal to Francis, Earl of Dalkeith. On the breaking off of the engagement she retires for some time to France. 1736. Death of her mother, with whom she lived at Merchiston Castle. 1746. 4 August — Lady Jane, now aged 48, marries Colonel John Steuart and goes abroad, concealing the marriage, taking with her Mrs. Hewit and two maids. 1747. 10 February — From the Low Countries she writes to Mrs. Carae denying the rumour of her marriage. April — She and Colonel Steuart go to Aix-la-Chapelle. 1748. April — Lord Crawford announces to her brother, the Duke of Douglas, that she is married and going to have an heir. 21 May — The Steuarts leave Aix for Rheims. 2 July — Lady Jane, Colonel Steuart, and Mrs. Hewit (leaving the maids at Rheims) go to Paris. 4 July — They arrive in Paris and put up at the Hotel de Chalons. 10 July — Lady Jane is alleged to give birth to twin sons at the house of Madame Le Brune in the presence of Mrs. Hewit and M. Pier La Marre, a surgeon, who immediately takes care of the younger child (Sholto) on account of his delicacy. 22 July — Mrs. Hewit announces the birth to the maids at Rheims. 16 August — Lady Jane, her husband, and one child go to Rheims. The child is baptised Archibald in the Catholic Church of S. Jacques. 1749. November — Lady Jane and Colonel Steuart return to Paris and then go back to Rheims with the younger and delicate child. 29 November — The whole party go to England, and Colonel Steuart is soon imprisoned for debt in London. 1750. 15 May — Lady Jane, in great straits, appeals to Mr. Pelham, and obtains a pension of £300 a year from King George II. 1752. May — Hearing that her brother, the Duke of Douglas, disbelieves in the story of the birth of the children, Lady Jane decides to go to Scotland. 17 August — She arrives in Edinburgh with the children, and sees many old friends. The Duke of Douglas remains silent. She attempts to see him at Douglas Castle, but is repulsed. CHRONOLOGICAL TABLE. 1753. 17 April — She returns to London and hears of the death of the younger child (Sholto), whom she had left behind. She at once returns to Scotland in great grief. 12 November — Rapidly failing in health, she makes her will. 22 November — Lady Jane dies in poverty, acknowledging the child Archibald (Douglas Steuart) as her son. He is not recognised by her brother, the Duke, but is cared for by her friend, Lady Schaw. 1764. The Duke of Douglas settles his great estates on his heir male the Duke of Hamilton. 1760. 6 January — The Duke of Douglas revokes his settlement in favour of the Duke of Hamilton. 1761. 11 July — The Duke of Douglas names Archibald Douglas Steuart his heir, as his sister's son. 21 July — Death of the Duke of Douglas. Archibald Douglas Steuart is served heir. Actions are raised against him by the Duke of Hamilton, founding on old Entails, but they fail. 1762. 7 December — A new action, "The Douglas Cause," begins. The Duke of Hamilton and others attempt to reduce Archibald Douglas Steuart's service as heir to the Duke of Douglas on the ground that he was not Lady Jane's son, but a supposititious child. 17 December — The Hamilton side commence the Tournelle action in Paris. 1764. 14 June — Colonel Steuart (now Sir John Steuart of GrandtuUy) dies acknowledging Archibald Douglas as his son. 1767. 7 July — The Court of Session, advising on the Douglas Cause, begins. 15 July — It ends in the Court being divided, seven judges on either side, but by the vote of the Lord President the Cause is carried in favour of the Duke of Hamilton. Riots ensue in Edinburgh. 1769. 19 January — The Douglas Cause goes before the House of Lords. 27 February — Judgment is pronounced in favour of the claim by Archibald Douglas that he is the son of Lady Jane Douglas. Great rejoicings in Scotland. 27 February — Protest by five Peers against this judgment. 1790. 9 July— Archibald Douglas (Steuart) created Lord Douglas of Douglas. THE DOUGLAS CAUSE. INTRODUCTION. The Douglas Cause is, most likely, the greatest civil trial affecting status that Scotland has ever seen. The conflicting decisions of the Court of Session and the House of Lords alone made it momentous, and the rank of the parties and the extent of the estates which were dependent upon the final decision made it pre-eminently interesting to the public in its own time, and the complexity of the evidence and the conflicting state- ments of the witnesses, both Scottish and French, as well as the old and irregular methods by which the evidence was pro- cured, make the whole trial a very delicate and intricate study even at this distance of time. The Cause endured, through its varying stages, eight years in all, and the mass of legal pleadings connected with it is enormous. As it is the first Civil Cause dealt with in this series, we feel that it may be differently treated from the Criminal Trials that went before it, and it is proposed, therefore, to give (1) a resume of the history of the Cause, and (2) a narrative of the circumstances that led to it, told as impartially as may be — for upon impartiality depends the value of this book — and with as little prejudice as possible. The Judgments of the Court of Session are given in full,i and the two chief speeches (which alone exist) delivered in the judgment in the final Appeal to the ^ There are two reports, differing very considerably from each other, and neither authoritative, of the speeches delivered in judgment. The first is "The speeches, arguments, and determinations of the Right Honourable the Lords of Council and Session in Scotland upon that important Cause wherein His Grace the Duke of Hamilton and Others were Plaintiffs, and Archibald Douglas of Douglas, Esq., Defendant, with an introductory Preface, giving an impartial and distinct account of this suit, by a Barrister at Law, printed in London for J. Almon, 1767," and the second, that of William Anderson, printed by Balfour, Auld & Smellie, Edinburgh, 1768. It is the former which is here printed, as the judgments, if less verbose, are more pithy and incisive. A "State of the Evidence" comparing the two reports, "with remarks" by Robert Richardson, D.D., Prebendary of Lincoln, was published also at London in 1769. See Appendix 11. B 13 The Douglas Cause. House of Lords are also printed at length, from a guast-official source. It is hoped that in this way the reader may be able to form his own conclusion on the history of the Cause and the difficulties connected with the evidence submitted, the com- plexity of which made the decision one of the most controverted in Scottish legal history. I. Narrative of the Cause. The Cause arose on the death, without issue, on 2l8t July, 1761, of Archibald, Duke of Douglas, on which event Archibald Steuart or Douglas was, on 9th September, 1761, on a brieve mortancestry, served nearest and lawful heir of tailzie and provision in general to the said deceased Archibald, Duke of Douglas, his uncle, in virtue of the disposition and tailzie of the dukedom of Douglas and others, dated 11th July, 1761. Evidence was led before the inquest that he was the only sur- viving son of the deceased Lady Jane Douglas, the late Duke's only, sister, bom of her marriage with Colonel John Steuart, afterwards Sir John Steuart of Grandtully, Bart. His birth was stated to have taken place at Paris, on the 10th July, 1748, in the presence of Mrs. Helen Hewit and M. La Marre, the surgeon, certain letters to Sir John Steuart from Pier La Marre, which were afterwards admitted to be copies of originals (or, it was alleged by the Hamilton side in the Trial, forgeries), being produced, but not read at the inquest. The tutors of Archibald Douglas soon after completed his title by a charter from the Crown, and he was put in full possession as heir of the Duke of Douglas, the Duke's widow, Margaret, Duchess of Douglas, and Charles, Duke of Queens- berry, being two of his curators; but his position as heir was not long unchallenged. First of all, actions were raised against him by the tutors of the Duke of Hamilton^ and the Earl of Selkirk, both of the Douglas family and next heirs male to the late Duke, for declaring their right to certain parts of the '^ James George, seventh Duke of Hamilton, son of James, sixth Duke, and of Elizabeth Gunning, Duchess of Hamilton and Argyll, the celebrated beauty. He was born 18th February, 1755, and succeeded his father in 1758. He died, unmarried, not long after the decision of the "Douglas Cause " against him, at Hamilton Palace, 7th July, 1769. M Introduction. family estate, which the Duke of Hamilton maintained were limited to heirs male by a deed executed in 1630, and the Earl of Selkirk affirmed were descendable to him in virtue of a deed executed in 1699. They demanded the sequestration of the estate from the possessor during the course of this competition, but this was refused, and the Court of Session decided against both the pursuers on 9th December, 1762. In the decision it was solemnly adjudged thai the Duke of Hamilton's claim was barred both by certain powers retained by James, Marquis of Douglas, and also by the destination to heirs whatsoever in the contract of marriage of the late Duke of Douglas. On 7th December, 1762, a new action, and one on an entirely new ground, was commenced against Archibald Douglas. It took the form of a summons at the instance of the Duke of Hamilton for reducing his service of 9th September, 1761, as heir to his uncle, the Duke of Douglas, as having proceeded on false evidence. A similar action was raised in the name of Lord Douglas Hamilton, the next heir,^ on the failure of the defender under the Duke of Douglas's last settlement; and a third at the instance of Sir Hew Dalrymple of North Berwick, Bart., one of the heirs of line failing issue of Lady Jane Douglas. It is to be noted that the other heirs of line, the Earl of Hyndford, Sir Kobert Menzies, Bart., John Swinton of Swinton, and others, did not join in the process. The sum- mons narrated that " The said Archibald Steuart and the other pretended male child of which the said Lady Jane Douglas was said to have been delivered at the time and place foresaid were spurious and were not the children of the said Lady Jane Douglas, as would be made appear by a variety of proofs to be more particularly condescended on in the course of process." The first step in the process was that a petition was presented to the Court on 9th December in the name of the pursuers, desiring an examination of witnesses to lie in retentis. Answers to this petition were ordered, but, in the meantime, another petition, unintimated, was read on 14th December, praying for an immediate examination of Sir John Steuart, the late Lady Jane Douglas's husband, on the ground that he was going ^ He, who succeeded, on his brother the seventh Duke's death, as eighth Duke of Hamilton, was born 24th July, 1756, and d.s.p., 2nd August, 1799. The Douglas Cause, abroad. This was granted, and Sir John, though in bad health, complied with the order of Court and was examined upon interrogatories framed by the pursuers, no condescendence of facts having been given in, for three successive days in the way of judicial declaration upon facts which had happened in 1748 and 1749. Although counsel for Archibald Douglas, his acknowledged son, were present, as they were ignorant of the facts upon whiqh Sir John was to be examined, they could not cross-examine him in their client's interest, but they did stat^ that the examination, if it was to be used as evidence, should be upon oath. The interlocutor pronounced was — " The Lords having heard what is above represented they allow Sir John Steuart's declaration to be taken in the meantime, reserving to the petitioners to insist for examining the said Sir John Steuart upon oath, if they shall afterwards insist upon the same, and all objections to such declaration as accords," and the declaration was sealed up to lie in retentis. The Court, how- ever, refused to examine Mrs. Hewit without a particular conde- scendence of facts being given in. When this was done. Sir John was again, in August, 1763, re-examined upon oath, his former declaration being also admitted eventually as a " circum- stance of evidence." Sir John Steuart died on 14th June, 1764, having on 7th June made a solemn declaration before five persons that Archibald Douglas was his only surviving son by his late wife. Lady Jane Douglas. A proof was allowed in 1763. Against this, however, an appeal was entered for the defender and a cross appeal was begun by the pursuers. It came to light, moreover, that during this time the Hamilton agents had been busy investigating evidence in France, and that a plainte had been raised as far back as 17th December, 1762, soon after the Court of Session action was begun, before the Tournelle Chamber of the Parlement of Paris, by Sir Hew Dalrymple and Mr. Andrew Stuart, one of the Duke of Hamilton's tutors* then in Paris, the chief mover in his interest, against Sir John * It is diflficult to apportion to Andrew Stuart praise or blame in relation to the " Douglas Cause. " He was a son of Archibald Stuart, W.S. , who is here mentioned as both " doer " to the Duke of Douglas and to the Duke of Hamilton. By the Hamilton interest he was made Keeper of the Signet, and he became convinced of the imposture of the Douglas's claim, and did all he could in France to further the rights of the Duke of Hamilton, his ward, and for this was extolled or blamed by the partisans i6 And.re"w Stuart. Fro}ii a Mezzotint after Reynolds. Introduction. Steuart and Mrs. Helen Hewit, accusing them on the criminal count of partus suppositio. On the 9th July, 1763, the pur- suers in the Tournelle action published a monitoire under the sanction of the Archbishop of Paris, giving an ex parte state- ment of their account of Sir John Steuart, Lady Jane Douglas, and Mrs. Helen Hewit, and their alleged imposture and acquisi- tion of supposititious children. This was read in the churches, and enjoined all persons under pain of excommunication to reveal to their parish cures any facts known to them which might help to establish the crime. This was an unfortunate step, which undoubtedly was looked upon as an act of intimidation against any witnesses who might have been disposed to come forward to give evidence as to the birth of the twin sons of Lady Jane Douglas, which birth was treated in the monitoire as an assumed crime and certain imposture. The whole Tournelle Criminelle process was eventually ordered both by the Court of Session and, on appeal, by the House of Lords, after much litigation, to be withdrawn on 13th April, 1764, and the Court of Session ordered that a new proof be taken abroad before Commissioners, and that this proof be reported by February, 1765; but this was after- wards prorogued. It was during this time that the Duchess of Douglas, with Miss Fleming Primrose as interpreter, went on a visit to France to find out evidence in favour of her protege, Archibald Steuart or Douglas, and their manner of doing so was not much more scrupulous than Mr. Stuart's had been. In the summer session of 1765, the proof taken abroad being expected soon in Edinburgh, a petition was presented by the pursuers, praying that certain parts of the proof which had •of the day. He was fiercely attacked in the House of Lords judgments by Lords Mansfield and Camden, and his duel with Mr. Thurlow, while the Cause was pending, created a great sensation. He was not without supporters, however. The morning after the case went against him, Horace Walpole says that he " found on his table a bond for four hundred pounds a year for his life, a present from Mr. Johnstone Pulteney, his friend, in consideration of the cruel treatment he had met with " ; and later, he published a series of "Letters to Lord Mansfield " on the trial, which from their biting eloquence were thought rivals to "Junius." He afterwards became M.P. for Lanarkshire, and then for Weymouth and Melcumbe Regis, and held this seat until his death. He was known in later life as a noted antiquarian and genealogist, and died 18th May, 1801. Most of his judicial opponents apologised to him for their attacks, and became friendly in later life. Mr. Horace Bleackley has done full justice to his abilities in his " Story of a Beautiful Duchess." 17 The Douglas Cause, been taken to lie in retentis — c.g.^ the declaration of Sir John Steuart in 1762 — might be opened. This produced answers^ replies, and duplies, and the Court deferred advising, first, until the proof should be reported and then printed, which was appointed to be done by a declarator of 19th December,. 1765. The huge bulk of the proofs for the pursuers, 1034 quarto pages, and for the defender over 1066, forced the printing houses of Edinburgh to cause more delay, but the two very large volumes (on which the following narrative is founded) were ready at the end of February, 1766. On 6th March the petition relative to Sir John Steuart's deposition was advised,^ and the declaration was ordered to remain sealed till the 15th of April, allowing either party to have access to it after that day upon application to the Lord President.^ Against this the defender appealed, but his appeal was withdrawn, and the pursuers, obtaining leave to open the declaration, printed it in sixteen additional pages to their proof. Short cases, instead of argument on the huge proof, were now ordered to be given in. Those for the pursuers were drawn up by Mr. Alexander Lockhart, Dean o(f Faculty, and for the defender by Mr. Alexander Murray. On the 1st of July,^ to the intense popular excitement of all Sootland, where, it is said, bets to the amount of £100,000 depended upon the coming decision, and where, as in France, the generality inclined to the legitimacy of the children, and " carried the current in favour of young Douglas, "^ a few days after the cases were given in, the pleadings began. First, four lawyers spoke for the pursuers, viz., Mr. Andrew Crosbie, on Tuesday, 1st July; Sir Adam Ferguson, on Wednesday and part of Thursday; Mr. William Nairne^ began on Thursday and ended on Friday; and <*0n 9th June a book, "Dorando: a Spanish Tale," which dealt with the Douglas Cause under a disguise of thinly veiled names, and was really written by James Boswell — the future biographer of Johnson — was adver- tised for sale. Its contents were so obvious that they were commented on by many journals. The publishers of these were, for this contempt of Court, summoned before the Lords of Session, 30th June, 1767, and put under caution to appear again on 19th July. On 28th July they were *• rebuked and admonished" by the Lord President for the publication complained of, and the matter ended. * Scots Magazine, 1766 [406-15]. ^ Walpole's " Memoirs of the Reign of King George III.," p. 301. i8 Introduction. Mr. John Dalrymple began on Friday and ended on Saturday. Then four lawyers spoke for the defender, viz., Mr. Alexander Murray, on Tuesday, 8th July; Mr. Henry Dundas, solicitor, on Wednesday and Thursday ; Mr. Eobert Sinclair, on Friday ; and Mr. David Rae, on Tuesday, 15th July. Two lawyers replied for the pursuers, viz., Sir John Steuart of AUanbank, on Wednesday, 16th July, and Mr. Andrew Crosbie, on Thurs- day, Two lawyers duplied for the defender, viz., Mr. Robert MacQueen, on Friday, 18th July, and Mr. James Burnett,* on Tuesday, 22nd July. Mr. Alexander Lockhart, Dean of Faculty, the last for the pursuers, spoke on Wednesday, Thurs- day, Friday, and Tuesday, and ended on Wednesday, 30th July. Mr. James Montgomery, the Lord Advocate, the last for the defender, spoke on Friday, 1st August. The pleadings were then the longest ever heard in a Court of justice, lasting in all twenty-one days, and the speeches were each often two, and some- times three, hours long. The Court then appointed Memorials on those pleadings to be given in by the 27th of September. This was prolonged, and not done until 24th January, 1767, the pursuers' being drawn up in over 800 pages by Sir Adam Ferguson, and the somewhat shorter one of the defender by Mr. Hay Campbell. Other counsel in the case for the pursuers, many of whom during the progress of the cause were elevated to the bench and gave judgment on it, were Mr. Thomas Miller, then Lord Justice-Clerk; Sir David Dalrymple (Lord Hailes), Mr. Walter Steuart, Mr. Wm. Johnston;* and for the defender Mr. Francis Garden* (Lord Gardenstone), Mr. David Rae,* Mr. Robert Sinclair, Mr. Charles Brown, and Mr. James Boswell. The agents for the pursuers were Mr. Andrew Stuart,* W.S., one of the tutors to the Duke of Hamilton and of Lord Douglas Hamilton, and Mr. John Davidson, W.S. ; and for the defender Mr. Charles Brown, W.S., and Mr. Alexander Maconochie,* writer in Edinburgh. Still the Cause dragged on. It was appointed to be heard upon the 23rd of June, but certain additions were sought for by both parties, which were allowed and given in before the summer session. The Court then ex nohili officio examined Isabel Walker, Lady Jane Douglas's maid, for two days, 23rd and 24th Those marked with an asterisk helped to get up the case in France. 19 The Douglas Cause. June, allowing both parties to hand in interrogatories for their consideration. Her deposition was ordered to be printed and the advising appointed for the 7th, July. On Tuesday, 7th July, the advising of this great Cause accordingly began [according to the newspapers of the time, the Court was held in one of the rooms of Holyrood House], and we give in full the decieions of the judges. The whole fifteen judges of the Court of Session gave .their opinions and were di^vided, seven on either side, and the first stage of the Douglas Cause was carried in favour of the Duke of Hamilton and the other pursuers by the vote of Robert Dundas, Lord President, to the intense popular indignation in Scotland, the windows of the judges favourable to the Hamiltons being broken, and the President receiving letters threatening him with death. An appeal, however, was given in by Mr. Douglas to the House of Lords without delay, ^ and into the case had been taken a young barrister, Edward Thurlow, it is said from the agents for the Duohess of Douglas having heard him arguing the case in favour of Mr. Douglas in Nando's Coffee House, the favourite resort of young lawyers. The pleadings so displeased Mr. Andrew Stuart, the Duke of Hamilton's tutor, that he chal- lenged Thurlow, and, though the Cause was depending, a duel was fought by them and pistols discharged. The public interest taken in the case was immense, and the papers of the day chronicled carefully the movements of Mr. Douglas, the popular favourite. As the session of 1767-68 was a short one, being the last of the Parliament, the Cause was postponed until the session 1768-69 to allow the vast mass of evidence to be gone over. On 19th January the case began ; for the appellant the Lord Advocate (Sir James Montgomery) and Sir Fletcher Norton, and for the respondents Messrs. Charles Yorke, Alexander Wedderbum (afterwards Lord Chancellor Lough- * Mr. Douglas wrote to [his half-brother] Sir John Steuart of Grandtully, 28th July, 1767 — "Our cause is indeed lost here, but there is another Court where justice and impartiality must prevail. The final decision here was not so great a stroke upon us as I believe upon most of our friends. Every person's character here is pretty well known, as well as their motives for their behaviour, but time and a little patience show everything and every man in their proper light. My affection for you and your family will not be the least diminished by the late decree." [Eraser's Red Book of Grandtully, ii. 369.] Lord Loughborough. From a Print. Introduction. borough), and Dunning. The Lord Advocate opened the Cause and spoke for four and a half hours that day, nearly five hours more on the 20th, and finished, " and with applause," on the 23rd. Sir Fletcher Norton spoke also on the 23rd and finished, having reserved his further arguments for the reply. Mr. Yorke, who " was the least admired,"'^ began for the respondents on the 24th, and spoke for three hours and a half, and ended next day. On the 25th Mr. Wedderburn began, spoke for four hours, and a half hour more next day, and on 6th February four hours more, ending, " with greater applause than was almost ever known," on the 7th. Mr. Dunning began on 10th February and spoke for five hours, but made " no great figure," nor did Sir Fletcher Norton, who began the reply on the 20th, when he spoke for three hours {Mr. Douglas being in the House, having gone in with the Duke of Queensberry), and ended on the 21st. Some points of form were discussed on the 22nd, and on the 27th judgment was pronounced, which reversed the judgment of the Court of Session and affirmed the service of Archibald Steuart or Douglas as lawful heir of tailzie and provision of the deceased Archibald, Duke of Douglas, his uncle. When this was known in Scot- land, wild joy was shown at this popular judgment, and in Edinburgh the crowd smashed the windows of the houses of the Lord President, the Lord Justice-Clerk, and other judges who had taken the Hamilton side, plundered the Hamilton apart- ments in Holyrood House, and for two days made it dangerous for opponents of Mr. Douglas to reside in the town, until the military were called out to restore order. Horace Walpoleio gives the following account of the Lords' speeches and the end of the trial: — "The Duke of Bedford, Lord Sandwich, and Lord Gower were the most zealous for the Hamiltons. Lord Mansfield, it had long been discovered, favoured the Douglas ; but the Chancellor Camden, with dignity and decency, had concealed his opinion ^ Walpole, from whom these comments are taken, says of Mr. Yorke in his "Memoirs of the Reign of King George III.," iii. p. 302: — "The Duchess of Douglas thought she had retained him ; but, hearing he was gone over to the other side, sent for him, and questioned him home. He could not deny that he had engaged himself to the House of Hamilton. ' Then, sir,' said she, ' in the next world whose will you be, for we have all had you?'" J^ '* Memoirs of the Reign of King George III.," iii. p. 303 et seq. 21 The Douglas Cause, to the very day of the decision. The debate was opened by the Duke of Newcastle, and very poorly. He was answered by Lord Sandwich, who spoke for three hours with much humour,^ and scandalised the bishops, having, with his usual industry, studied even the midwifery of the case, which he retailed with very little decency. The Chancellor then rose, and with be- coming authority and infinite applause, told the Lords that he must now declare that he thought the wl^ole plea of the Hamiltons a tissue of perjury woven by Mr. Andrew Stuart, and that, were he sitting as judge in any other Court, he would order a jury to find for Mr. Douglas, and what that jury ought to do on their oaths, their Lordships ought to do on their honours. He then went through the heads of the whole case,, and without notes recapitulated even the dates of so involved a story, adding that he was sorry to bear hard on Mr. Stuart, but justice obliged him. This speech, in which it was allowed he outshone Lord Mansfield, had the most decisive effect. The latter, with still more personal severity to Stuart, spoke^^ till he fainted with the heat and fatigue ; and at ten at night the decree was reversed without a division." He adds lator, " The Duke of Bedford, the Earls of Sandwich, Bristol, and Dunmore, and Lord Milton protested against the decision in favour of Mr. Douglas, for that he was not proved to be the son of Lady Jane, and for that they thought it had been proved that he was not so."i2 ^^ "To say that he was great, pathetic, and eloquent is saying nothing. There was such music in his speech, such eloquence in his diction, such irresistible force in his reasoning, that it was impossible to hear him without raptures." [Edinburgh Advertiser, 7th March, 1769.] ^2 Although this was the end of the "Douglas Cause," actions of reduc- tion continued to harass Mr. Douglas until 1779, when these were finally settled in his favour by the House of Lords [Fraser's The Douglas Book, ii. 532]. Upon this Mr. Douglas wrote to his brother, Sir John Steuart of GrandtuUy, 30th March, 1779 — *' Knowing good news is not inwilcome to you, the House of Lords yesterday gave me a full and free liberation from all further disputes in law, and the Hamilton family have now not the smallest pretensions to the smallest part of my estate. It has been long depending, and is at last happily ended. " [Fraser's The Red Book of GrandtuUy, ii. 372.] Introduction, II. Historical Narrative. Almost every statement made in the Douglas Cause turned upon the real behaviour of Lady Jane Douglas, and, as she was dead before the Cause began, the evidence was naturally vague and contradictory. It is necessary, therefore, to examine shortly the history of her early life, and much more particularly of the years that followed her marriage. She was bom on l7th March, 1698, and was the only daughter of James, Marquis of Douglas, a great Scottish noble, and of his second wife. Lady Mary Kerr, daughter of Robert, Marquis of Lothian. She had only one surviving brother, Archibald, Duke of Douglas, who was four years older than herself, and of whom she was the pre- sumptive heiress, a position of great importance, as he remained unmarried during her lifetime. The Douglas family, one of the most ancient and important in the kingdom, was possessed of vast estates and had attached itself to the Hanoverian succession, as had the Duke of Hamilton (also a Douglas), who was the Duke of Douglas's heir male. Lady Jane in early life seems to have been beautiful and very attractive, and her character is variously described. On the one hand it was stated that she was " brought up by her mother, the Marchioness, in principles of the strictest piety, which she always retained. . . . Her great beauty and accomplish- ments procured her universal attention. "^^ ^nd on the other hand, " These great advantages, joined to her high rank and quality, gave her a natural prospect of much happiness and prosperity, but a certain extravagance of conduct, for which she was from the beginning remarkable, and a singular turn of mind, increased by the contagion of improper connections, prevented the effects that might have been expected from the appearances so much in her favour. "^^ She was, it is certain, much admired, and declined many noble matrimonial alliances, but in 1720, however, became betrothed to Francis (Scott), Earl of Dalkeith, afterwards second Duke of Buccleuch. The marriage was broken off suddenly later, and the Earl of Dalkeith, the jilted party, according to one, and the jilting party, according to another story, fought a duel on Lady Jane's account with her ^^ Defender's Memorial, 2. ^* Pursuers' Memorial, I. 2. 23 The Douglas Cause. brother, the Duke of Douglas, and then married, on 5th April, 1720, her kinswoman, another Lady Jane Douglas, of Queens- berry. This disappointment or "cruel affront" affected Lady Jane so much that, intending, it was said, to enter a French con- vent, she secretly eloped to France, accompanied only by her maid, who was a Frenchwoman ; but she was soon followed, how- ever, by her mother and brother, who prevailed upon her to return to her native country. , That this adventure was not forgotten is shown by a letter to her on 29th January, 1750, from her uncle. Lord Mark Kerr, in which (referring to her later marriage and second departure to France) he writes, " Now to say nothing but the truth, your two trips into France, I do think there is no apologising for it, which is the worst, I will leave the world to judge. . . . Your behaviour thirty years ago next month, ajid four years agone very soon, are both mighty fresh in my memory." Although Lord Mark thus reproached his niece (with whom he was on cool terms) he attempted to help her and her two sons whom he mentions in this letter also. Lady Jane, though pressed by her brother to marry, declined to do so, notwithstanding that he offered on her marriage to increase her fortune considerably. In 1725 the Duke of Douglas underwent a great misfortune. He had the ill-luck to wound mortally Captain John Kerr, a natural son of his uncle. Lord Mark Kerr, and it was bruited abroad, rightly or wrongly, that Captain Kerr's courtship of Lady Jane had " spurred him " — the Duke — ^to this " rash action, which proved the source of his own unhappiness and of all her misfortunes." This misad- venture, there is no doubt, saddened the life of the Duke of Douglas, altered his career, and alienated his sister from him. He was forced " upon the event to live extremely retired," and thenceforward was influenced only by his factor, James White of Stockbriggs, a man of humble origin, and Mr. Archibald Stuart, W.S., who was not only "doer" to the Duke of Douglas, but " doer " to his heir male, the Duke of Hamilton (whose interests he had much at heart) also. While the Duke resided in retirement at Douglas Castle, his sister. Lady Jane, lived with her mother at Merchiston Castle, near Edinburgh, until the death of the Marchioness of Douglas, on 21st January, 1736. She then removed to Drumsheugh House with her devoted friend and attendant, Helen Hewit, a woman of gentle birth, who is 24 Introduction. alternately praised in the " Process " as the most faithful of friends, or blamed as an unscrupulous intrigante. The Duke, on hia mother's death, granted his sister an income (small enough) of £300 a year, but the pair were not on good terms. Lady Jane's hint that his having beaten a footman might rouse again the fading story of his manslaughter displeased the Duke. He believed that she wished to have him confined as a lunatic, and an insult from the mob, which he suffered when he was in Edinburgh, was understood by him to be a plot which his sister had contrived with Colonel John Steuart, with whom at this time she was intimate and whom she afterwards married, to have him murdered or kidnapped and carried off to St, Kilda, so that they might get his estate into their own hands. ^^ These estranged relations were more seriously embittered when in 1745 the Jacobite troops occupied Douglas Castle. The Duke was again persuaded that Colonel Steuart (a known Jacobite of 1715) and Lady Jane (who was, by repute, i^ Uee with the Jacobite party) had instigated this attack also; and his sister continued to fall in his estimation. In spite of this Lady Jane assisted the escape of the Jacobite refugee, the Chevalier Johnston (a cousin of her friend, Mrs. Hewit), and hid him for some time in her house at Drumsheugh. Lady Jane, though young looking and still graceful, was now in her forty-ninth year, and at this juncture took a very serious if secret step. On 4th August, 1746, she was married at her house of Drumsheugh by the Rev. Robert Keith, a bishop of the Scottish Episcopal Church and a friend of her own, to Colonel John Steuart, a younger brother of Sir George Steuart of GrandtuUy. That the marriage was imprudent is obvious. Lady Jane was no longer at all young and had only a small income, and Colonel Steuart, though " well looked " as a handsome man of fifty-eight and heir to the estate of Grand- tuUy and a baronetcy, was already a widower with one son. Jack Steuart. He was known to be thoughtless and inconsiderate to a high degree, in his circumstances poor, being " extremely profuse," and as a ruined Jacobite, as well as a supposed " Papist," besides the above suspicions, " though esteemed by ^^ *' Case of Archibald Douglas, House of Lords," p. 8. *^ If the Chevalier Johnston is correct Lady Jane visited Prince Charlie at Holyrood. 25 The Douglas Cause. his acquaintances to be a man of honour," was an object of peculiar aversion to the Duke of Douglas, who was the only support his wife could rely on in case of distress. Yet when the Earl of Crawford later, as Lady Jane's inter- cessor, apprised the Duke of Douglas of the fact of the marriage^^ he thought himself able to write, " She certainly merits all the affectionate marks of an only brother to an only sister. Much, much, does she wish, as well as others of your Grace's devoted friends, there had been no so great necessity " — the Duke of Douglais at this time refused to marry — " for her changing her way of life ; but since it has become so absolutely necessary, with the greatest submission, considering the variety of different circumstances, I would gladly hope your Grace will not disapprove of the person Lady Jane has chosen, as to be isure there is none so deserving." So much did Lady Jane dread her brother's displeasure that her marriage was kept an absolute secret except from her maids, and the better to conceal it she determined to go abroad. For this purpose Colonel Steuart passed a« one of her footmen under the name of " John Douglas," and she obtained passes to Holland from the Secretary of State's office on 29th August, 1746, for her suite. She met Colonel Steuart at Huntingdon, and her other attendants on the journey consisted of Mrs. Hewit, two maid servants, Isabel Walker and Effie Caw, and the Chevalier Johnston, Mrs. Hewit's cousin, for whom she also obtained a pass as a footman under the name of " James Kerr." The party proceeded to The Hague, and at the end of December removed to Utrecht, where they met Lord Blantyre, a young Scottish lord, who became a friend. On the 10th February, 1747, in a letter to Mrs. Carse, Lady Jane very strongly denied the report of her marriage, imprudently imputing the rumour of it to her cousin Mally Kerr, Mrs. Stewart of Stewartfield, and blaming her in no measured terms ; and the inopportune strength of the denial in this letter of a real fact we shall find referred to frequently during the trial in connection with the credibility of Lady Jane's assertions. About the middle of April, 1747, Lady Jane, Colonel Steuart, Mrs. Hewit, and the two maids removed to Aix-la-Chapelle, and " April, 1748, Defender's Proof, 964. 26 Introduction. resided with Madame Tewis, a lady of good birth, until 10th August, when they made a short excursion of a fortnight to Spa, and on returning went first to lodge with Madame Champignois, until 14th September, when they returned to Madame Tewis. At Spa they saw Sir William and Lady Steuart, who noticed that Lady Jane looked ill, and she, in writing to borrow money from Mr. Patrick Haldane, mentioned her design of spending the winter at Bayreuth, where she might have the free exercise of the Protestant religion, and of trying the waters of Carlsbad, in Bohemia. They resided with Madame Tewis until 5th January, 1748, then with Madame SchoU until March, and then with Madame Gillesen until they left Aix on the 21st May, 1748. During this residence at Aix-la-Chapelle we have to observe one notable circumstance, namely, the inten- tion still to conceal the marriage. When Sir John and Lady Jane came to Aix-la-Chapelle their marriage was still undis- closed and secret from all, except the maids and a few con- fidants, but Lady Jane's visible pregnancy forced it to be disclosed, and it was accordingly confided to Madame Tewis, with whom they had become intimate, as well as to the Earl of Crawford, an old comrade and friend of Sir John Steuart, but at first to no more acquaintances than necessary. The cause was observed by Madame Scholl, Mr. and Mrs. Hepburn of Keith, Baron Macelligot, certain Benedictine nuns of St. Anne's, and Baroness d'Obin, afterwards Madame Negrette, Madame Gillesen, and perhaps by Mademoiselle Bleyenheufft, a seam- stress. As time went on, however, the marriage being now well known, it became important for Lady Jane to reveal the fact of her marriage and her condition to her brother, the Duke of Douglas, and she did this by a letter which was enclosed in one from Lord Crawford, in whose mediation she trusted. Lady Jane's letter — like so many important papers in this cause — has perished, but Lord Crawford's letter was printed in the proof, and contained the following passage: — "I am hopeful my representations will not only meet with forgiveness, but also with their wishes for success in reconciling your Grace to an event all the well-wishers of your Grace's family may have the greatest reason to rejoice at, as there is such visible hopes of its being attended with the natural consequences so much ionged for by all that are fond of seeing the family of Douglas 27 The Douglas Cause. multiply." Lord Crawford, by the same letter, informed tJie Duke of Douglas of Lady Jane's marriage, of their straitened circumstances, and of his pleasure in her and her husband's society. This letter seems to have been written in April, 1748, the marriage having just been publicly declared in March. Lady Katherine Wemyss, Lord Crawford's sister, deponed,, however, that she liad. heard it said at Aix that^the parties were married, "or, at least, had an intrigue together, as they lived in one house," though she paid little attention to the fact, owing to Lady Jane's denial ; yet after the disclosure of the marriage she remained one of her best friends. In May some Scottish visitors arrived at Aix, who all believed in Lady Jane's hopes of being a mother. These were the Countess of Wigton, who became a great support of Lady Jane in her trials later ; Mr. Fullerton of Dudwick; Miss Fleming Primrose, then a young girl ; and Mrs. Greig, Lady Wigton's woman, whose testimony was strong upon the point. The congress which was held at Aix-la-Chapelle after the war, and the consequent increase in the expense of living there, induced, or gave an excuse for. Lady Jane, her husband, and suite to move once more. They appear to have thought of going to the south of France or to Geneva, and Lady Jane alleged (though she afterwards had her acknowledged eldest son baptised a Roman Catholic) in a letter that she wished to go to^ a Protestant country. Lady Jane then applied, through M. Joseph Tewis, to the Count de Salm, to whom he was Grand Bailli, to be permitted to reside at the chateau de Bedbur for her delivery, but before permission arrived from Vienna she and her party had left for Rheims, in Champagne, setting out on the 21st of May. On their way they rested at Li^ge for a few days, and there dismissed their man servant, Quibel, who, as a deserter from the French service, could not enter France. At Li^ge they were visited by certain Jacobite refugees and Scottish exiles, such as Joseph Byres of Tonley, Mr. Graeme of Garvock, and most intimately by Mr. and Mrs. Hepburn of Keith, all of whom stated later that they observed Lady Jane's condition, and the Chevalier Douglas, who gave evidence that he advised Colonel Steuart to proceed to Paris " ou elle pouvoit avoir tous les seoours n^cessaires pour son accouchement." They pro- ceeded by stage-coach, the maids, much to their dislike, " in the Introduction. basket of the coach," on 25th May, to Sedan, reaching it on the 27th, and remained there nine days, and then resting one night at Charleville (where M. Guenet did not know Lady Jane was Colonel Steuart's wife, " ni si elle etoit fille ou femme, qu'ell© portoit une longue mante qui lui tomboit des epaules jusqu'aux pieds "), another at Rhetelle, where Lady Jane fell sick, though she was able to proceed next day to Rheims, arriving there on 7th June, and, after a night at an inn, lodged with M. Hibert. Here Lady Jane was seen only by Mr. William Mackenzie and Mr. MacLean (afterwards Governor of Almeyda), Scottish prisoners of war; Mr. MacNamara, and the family of M. Andrieux, and all the persons she met noticed her situation, if we except the dubious evidence by a mantua maker, who did not observe it. This place in the narrative is perhaps the best for it to be directly stated that the other next heirs of the Duke of Douglas, who afterwards brought the Douglas Cause into Court, fiercely maintained that Lady Jane, at this date in her fifty-first year, had all this time only assumed an appearance of pregnancy, with the intention of ultimately procuring a supposititious child, that for this simulation she wore a particular dress, and that all the persons who observed her obvious condition were her dupes, except her husband and Mrs. Hewit, who were either instigators or accomplices of the scheme, and the maids, the extent of whose complicity was uncertain. Lady Jane and Colonel Steuart now made a move, the reasons for which are still uncertain. Leaving, on the excuse of poverty, in which Colonel Steuart, both as a Jacobite and a penniless cadet, was always involved, the two maids, Isabel Walker and Efiie Caw, behind at Rheims, they alone, on 2nd July, with Mrs. Hewit in attendance, set out in the stage-coach for Paris, arriving there on the 4th. It is said that Lady Jane had been told that the physicians in Rheims were unskilled, and so undertook the journey, though it was at so critical a period for one of her advanced age. On the other hand, it was afterwards alleged that the party had gone to Paris to feign a delivery and procure a child to introduce as their own to soften the heart of the Duke of Douglas and to induce him to open his purse strings, and for this reason had left the maids, part accomplices only, behind at Rheims. Upon the objects of this journey the whole case turns, and, in spite of the Court of Session's adverse judg- c 29 The Douglas Cause, ment, it must be remembered that the decision of the final Court of Appeal showed firm belief in Lady Jane's being mother of the children she afterwards brought to England as her own. They arrived on the evening of 4th July in Paris, and went to the Hotel de Chalons, Rue St. Martin, kept by M. Godefroi, whose name was so often repeated in the Cause. Thence, accord- ing to Colonel Steuart and Mrs. Hewit, they went a few days later to the house of Madame Le Brune,!^ Fauxbourg St. Ger- main, a house which was never identified, where, in the presence of Mrs. Hewit and M. Pier La Marre, a surgeon, Madame Le Brune and her daughter, Lady Jane gave birth on the 10th of July to twin sons, afterwards called Archibald and Sholto Douglas. It was said that the younger, being very delicate, was, for fear of death in infancy, "ondoye" by M. La Marre, who afterwards for fifteen months took care of him, putting him out to nurse with a woman who was identified, though not without discussion, with Nurse Gamier, of la Hauteborne, near Menilmontant ; but leaving the stronger and elder twin with his parents. Lady Jane, Colonel Steuart, and Mrs. Hewit, it was said, left Madame Le Brune's on 20th July, and went to M. Michelle's Hotel d'Anjou, though this date also was challenged, and to this house one child — stated to be the elder twin — was brought later, his nurses having been frequently changed with varying success. Mrs. Hewit wrote the following letter to the two maids at Rheims, dated from Paris, 22nd July, but most likely written the night before : — " Dear Tibby and EfBe, — This will be the welcomest letter iver eny of you reeved. The last day I writ to you, Tiby, I told you your Mrs. was very well, as I thoght, so far from that she had been ill the whoU neght, and sad not a word tell tuall a clok, which was 4 ours after your letuer wint af ; then, I think, she was in soch a way as I could wisht not to a been witness to, tho, I do belive, many is been wore with on, and she produced two lovly boys. You may belive the confusion I have been in sine, haven no thoght of more than wan, tho' Tiby Walker was so moch a conjuererour as to tell me, she 18 The name, like most of the French names in the Douglas Cause, is uncertain, and is spelled either Le Brune or La Brune. 30 Introduction. thoght she was with two, still my thoghts joined EfPe's; they are two lovely cretors, but the youngst very small and weakly, so the doctor beght he might be sent to the country as soun as possible. Your Mr. and I had to go not a litell way before we got a right nurse that we ould pert with him to ; at last we gone on of the clinest best woman iver you sa, a farmer's wife, so I hop he shall do very well he agreeing so well." The letter goes on to tell about the difficulties that occurred in getting " a right norc " to nurse the stronger child, Archibald, and tells of the rapidity of Lady Jane's recovery. " She is recovering most surprisingly well, not on back-going howr, so soun as the ninth day was over, ther was no confiningn her longer to her bed, the heat being so vilint. In short, Tiby and Effe, all is to a wish ; " and in a postscript she continues — " I have thoght it two months since I left you all — the hurry I was in last writin, I blive I dated my letter the 11, instead of the 10, which was the happy day." On the 26th Mrs. Hewit again writes to Tibbie Walker in the same strain, telling of the weak- ness of the younger twin and the strength of the elder " stordy velen," and his bad luck with his nurses, and in a later letter 12th August, 1748, tells the same maid — "You may tell Mr. Mackenzie or any body you pleis of your Lady's being broght to beed now, for her Lap's is writ it to her brother last week, which was the sounest she was eble; so sine he is acquainted with it there is no need for keeping it a secret." At the same time Colonel Steuart apprised Lord Crawford of the fact of the birth of the twins, and Mrs. Hewit wrote for Lady Jane to her old friend, Mr. Joseph Douglas of Edrington. Lady Jane's situation at the Hotel d'Anjou was subject to different accounts, one version stating that she did not go out of doors, another alleging that she took part in a jaunt to Versailles. She, however, was able to leave the Hotel d'Anjou about the 4th of August and to go to Dammartin, and notified the birth of her sons to the Duke of Douglas in a letter dated the 7th of August from "Rheims," though she did not leave Dammartin until about the 15th August. Her husband returned to Paris, where he again stayed at M. Godefroi's, and Mrs. Hewit, writing to Isabel Walker on the 10th of August, says he went to see his youngest son, " and I got a letter this day tellen he hopes he will dow very well, and that the nurse is the most 31 The Douglas Cause. carefoll womin he iver sa, and that he is now queet content to live him with her." About the 13th of August Colonel Steuart rejoined Lady Jane, and in a day or two the two, with Mrs. Hewit, the (elder) child, his new nurse, Mangin, and the latter's husband, left for Rheims, where they arrived on 16th August, and lodged with Madame Mayette. In the case against Archibald Douglas i^ was maintained that during Lady Jane's visit to Paris most of these alleged circumstances were false. That the surviving and dead witnesses did not agree about the details of the delivery ; that Lady Jane was not delivered upon the 10th July of twins ; that she described her delivery differently in a conversation with the Countess of Stair reported by her daughter, Miss Primrose ; that Madame Le Brune, in whose house the birth was placed, could nowhere be traced ; that Colonel Steuart and Mrs. Hewit at first spoke of the delivery having taken place at Madame Michelle's ; and, further, that both on the 10th of July and some days previous and subsequent Lady Jane and her husband were still residing at the hotel of M. Godefroi, and several members of his family testified that this was so, and his imperfectly kept house books were called into evidence to support the theory of this alihi, on which much of the case turned. It was furthermore alleged that during the visit to Paris Lady Jane and Colonel Steuart affected " concealment, disguise, and mystery ' ' when Sir John, Lady Jane, and Mrs. Hewit brought with them from Paris one child ; and that there was a repetition of " the same concealment and mystery when they returned to Paris in November, 1749, and brought with them from thence to Rheims a second child." It was furthermore alleged, and a long proof led, that in July, 1748, a recently born male child was purchased and carried off from his parents, named Mignon, of a very humble origin, and that in November, 1749, another child, the son of Sanry, a tumbler at a fair of St. Laurent, was also kidnapped, and it was alleged that these two "enlevements" of infants, of which we shall hear much, were caused by Colonel Steuart, Lady Jane Douglas, and Mrs. Hewit to take the place of the twin sons to whom Lady Jane was stated to have given birth on 10th July, 1748. Another curious circumstance was the vague and erroneous description Colonel Steuart gave of M. 32 Introduction. Pier La Marr, or La Marre,!^ th^ surgeon, who assisted at the delivery. In his examination on the subject he styled him an old acquaintance, a Walloon ; but it was eventually proved that a surgeon named Louis Pierre De la Marre^o did practise in Paris at the time; and his fellow- surgeon, Doctor Michel Menager, swore that he had heard from him that he had assisted at the delivery of a stranger lady of advanced age, who gave birth to twin sons, a statement which, whether true or false, added considerable weight to the evidence of Lady Jane's child-birth. 21 Against this must be put the frequent and unfortunate change of nurses of the elder child, which might have been caused through fear of discovery, as well as the alleged relegation of the younger child to M. La Marre's care. At Rheims Colonel Steuart and Lady Jane lived with some consideration, and saw much of their friend Lady Wigton, and on the 15th September their acknowledged elder son was publicly baptised by the Roman Catholic rites in the Parish Church of S. Jacques. The Countess of Wigton was one godmother, and her husband, Baron Caesar de Macelligot, godfather, with Madame Andrieux as proxy for the Marchioness of Lothian as the other sponsor, along with Lord Blantyre and Mr. MacNamara, proxy for the Earl of Crawford. " Un fete splendide " followed, and it was perhaps from the severe fatigue ^^ The letters produced at the Service were signed Pier La Marr or la Marr, but throughout the Cause the surgeon's name is given as La Marre, and we have thought it a pity to alter this spelling. "^ Born at Montreuil-sur-Mer, 31st January, 1711. He was first employed in Paris in 1730 by his uncle, a barber, and, it was alleged, placed in 1734 as chirurgien apprentice to M. Menjon, and was with him five years. He thence went to study chirurgie at the Hotel Dieu, where he remained until December, 1746, and became, it was alleged, " a man of skill and under- standing in the practice of midwifery." He was admitted a Privileged Surgeon at St. Colme in 1750, and died 15th May, 1753, survived by his wife, whom he had married 14th November, 1747. One cannot help wondering if the family of this doctor was not related to the Mme. La Marre, Rue du Faubourg St. Denis, the sage femme to whom, some years later, Casanova entrusted the unfortunate Mme. della Croce, and in whose house her son was born on 17th October, 1767. [" M6moires de Casanova," vii. 358-361.] 21 Horace Walpole's statement that "the principal evidence for the Douglas was convicted of perjury in another cause in France," has been thought to refer to this witness, M. Menager. In the Trial, before the Court de Chatelet in Paris, of Jean Francois de Molette, Comte de Morangi^s, who was accused in 1772 of extorting money from a widow and her son, M. Menager was certainly imprisoned for perjury ; but, on the collapse of the case against M. de Morangi^s and his acquittal, he was of course released. [Vide Horace Bleackley's "The Story of a Beautiful Duchess," pp. 243-340-1]. 33 The Douglas Cause, attendant on the baptism, as well as from an accident at Lady Wigton's, that a circumstance stated in evidence occurred, namely, that Lady Jane lost her hope of being again a mother. In October, 1748, Colonel Steuart, it was stated, went to Paris accompanied by Baron Macelligot and Mr. John Hay, to see the younger child there, and returned to Rheims on 11th November, when he wrote to his eldest son by his first marriage, John Steuart, that hkdy Jane wished him to join them in France to make the acquaintance of "your brothers." It was alleged that he repeated his visit to Paris in the spring of 1749, and then was placed in considerable money difficulties by the sudden with- drawal by the Duke of Douglas of his sister^s (Lady Jane's) pension. Lady Jane at once begged for assistance from her uncle, Lord Mark Kerr, but without success, and then applied to Lord Morton, her old friend, and he at once — happily for her — sent her £350. In November, 1749, on receipt of Lord Morton's loan, they again, accompanied by Mrs. Hewit, went to Paris to recover the younger twin, Sholto, and it was then asserted by Archibald Douglas's opponents that, passing under the name of " Duvern6 de Korgue in Ireland," Colonel Steuart, his wife, and Mrs. Hewit, who was, according to the story, styled his sister, obtained the child of Sanry, a tumbler at a fair, and carried him off to Rheims in November with them. After they had returned to Rheims with the child Sholto, Colonel Steuart, Lady Jane, Mrs. Hewit, the two boys, and the maids set out for England on 29th November, arriving in London in Christmas week (o.s.). Lord Mark Kerr at once visited his niece, though on rather indifferent terms with her, and asked her to dine with him on Christmas Day. Lady Jane and her family lodged at Mr. John Murray's, in St. James's Place, and then in Chelsea until August, 1752, but Colonel Steuart was from debt confined very soon to the Rules of the King's Bench prison, and affectionate letters, which always mention their children, and express anxiety for their welfare, constantly passed between husband and wife. 22 The 22 It was the collected edition of these letters, all of them pathetic and sympathetic, which converted many people, including Thomas Carlyle, to the belief that "the Douglas Claimant" was really the son of Lady Jane Douglas. [" Frances Lady Douglas," BlackwoodPa Magazine, October, 1908.] They are given in Appendix III. 34 Introduction. Duke of Douglas, however, did not feel that the news of their birth had brought him nearer to his sister. Lord Mark Kerr, his uncle, wrote that he called her children " in a jocular way Pretenders," and there is no doubt that later he and those about him discredited the fitory of their birth altogether. Lady Jane received reports that her children's birth was dis- believed in 1750, and desiring to disperse "these rising calumnies," wrote, not to Madame Le Brune or M. Pier La Marre, but to Madame Tewis, their friend at Aix-la-Chapelle, desiring her to certify what she knew about her pregnancy there. Madame Tewis, along with two other persons, made a declaration, in answer to this request, on 5th August, 1750, but it did not reach England until after Lady Jane's death. On 15th May, 1750, Lady Jane, now in great straits for want of money, in a letter to Mr, Pelham, desired him to procure some mark of His Majesty's bounty on the ground of necessity — " I am destitute, presumptive heiress of a great estate," she wrote, " with two children. I want bread." This touching appeal was successful, and Mr. Pelham was able, on 3rd August, to inform her that King George IL had granted her a pension of £300 a year. She was presented at Court to the Prince and Princess of Wales, the Duke of Cumberland, and the Princess Amelia, and, being now out of want, went a. little into society. The Countess of Home, Lady Tyrawley, and Lady Irvine paid her much attention, and at the house of Lady Tyrawley she met the beautiful Miss Gunnings, one of whom was soon to become Duchess of Hamilton and mother of the opponent of her acknowledged son, Archibald Douglas. In 1751 her friend the Countess of Wigton returned to England, and, in deference to her representatioujs, the younger child Sholto was re-baptised at her house at Hampstead by, this time, the Rev. Mr. Colvil, a Presbytorian minister, for Lady Jane stated now that she considered the difference between the Churches merely formal. On 14th May, 1752, Lady Jane was sent a letter from Mrs. Carse in Scotland informing her that Mr. Archibald Stuart, the Duke of Douglas's agent, had gone to Douglas Castle with five clerks, " he having a great deal of business there," and that Mrs. Stuart, his wife, when asked how the Douglas family and name could soon, 35 The Douglas Cause. as was reported, become extinct, when Lady Jane had two fine sons, "Ha," says she, "they'll never be owned by his Grace; and all that's possible to be done against her and hers will soon be put in execution.'' Lady Jane, on hearing this inten- tion of her brother, at once decided to go to Scotland, and was confirmed in this by a letter from her friend, Lady Katharine Wemyss, to whom, as we have seen, she had originally denied her marriage, which said, " I certainly don't think, were you in our country, his Grace could stand out long; his dear little nephews would plead your excuse." Lady Jane, accompanied by the two children, Mrs. Hewit, and Isabel Walker, set out for Scotland in the beginning of August. She arrived in Edinburgh on the 17th, and stayed with the Hon. Mrs. Maitland in Bishop's Land, " at a pretty easy rate, it being the vacance,"23 until the middle of October, when she removed to Hope Park, "out of the smoke of the town." She saw Mr. William Loch, who had for long looked after her business affairs, and he had an account of the children's birth from her, and she also interviewed Lord Prestongrange, who is reported to have told her that if she and Mr. Steuart acknowledged the children there was no further proof necessary, and that, if any person challenged their birth, it behoved them to prove that they were not Lady Jane's children. On the 19th of October she again wrote a touching letter of appeal to the Duke of Douglas, but without any result. On the 16th November Lady Jane attended, taking with her the two children, an assembly in honour of the King's birthday. She wrote, " I cannot really express the warm and kind reception we met with from the whole assembly, which was extremely crowded. Archy and Sholto behaved to a wonder, and were caressed beyond measure." On the other hand she had several unpleasant experiences. The Duchess of Hamilton refused to see her on account of the Duke of Douglas's enmity to his sister. Lady Stair visited Lady Jane, who had a conversation with her about the birth of her children, which she said should have been in " a royal manner," and she is said to have talked to Mrs. Menzies, who afterwards Fraser's Red Book of GrandtuUy, i. cxcii. 36 Introduction. stated that Lady Jane knew that her brother had called the children "nunnery children," but that she had in her pocket " a letter from the physician who had laid her." Lady Jane, taking Isabel Walker and two other servants with her, made a final attempt to see her brother and soften his heart by a personal appeal by presenting the children before him. They went to Douglas Castle and desired the Duke to be apprised that they were there. The butler took the message, and while the Duke was deliberating what to do, his favourite. White of Stockbriggs, gave orders that they were not to have access. The Duke afterwards regretfully asked the butler if he had seen the children, and he said he had carried them botli in his arms, and that " the eldest was black, and the youngest, Sholto, was as like Lady Jane as ever child wais like a mother," and this likeness was very generally noticed by many witnesses. 24 Leaving her children in Edin- burgh, she, hearing that her pension might be stopped, pre- sumably on the ground of fraud, set off to London on the 17th of April, and before she got there had a fresh grief by hearing of the illness and death of the younger child, Sholto, from whom she had just parted. Her grief at the loss was very great and real, and, in spite of everything, she notified the event to the Duke of Douglas. Lady Jane never seems to have got over this sorrow, which greatly affected her health, and as soon as she could she returned to Scotland, where she had left Archibald Douglas. Rapidly failing in health, she made her will on 12th November, made a final appeal to the Duke of Douglas, received the sacrament in the Presbyterian form in New Greyfriars' Church, though in great weakness, and, acknowledging Archibald as her child, died on 22nd November, 1753. She was buried quietly, at her brother's expense, at Holyrood beside her mother in the Belhaven tomb there, and the child was prevented by the Duke of Douglas from being present at the funeral of the lady whom he knew as his mother. Though remaining with Mrs. Hewit at first, he was adopted by Lady Jane's old friend. Lady Schaw,25 and "^ Journal of Lady Mary Coke, iii. 23 (privately printed 1892). 25 Margaret, daughter of Sir Hew Dairy mple of North Berwick, born 6th March, 1683, died 8th October, 1757 : married 1700 Sir John Schaw of Greenock, Bart. 37 The Douglas Cause. carefully tended by" her for Lady Jane's sake until she died in 1757, Colonel Steuart being still in distressed circumstances. On Lady Schaw's death, her grandson, the Earl of Cathcart, took young Douglas under his care, and this was at a time when he had no hope of the Douglas succession, as, in 1754, the Duke of Douglas settled his vast estates upon his heir male, the Duke of Hamilton, and enlarged this settlement in 1757. In the years 1758 and 1759 two events happened which made a great change in the fortunes of Archibald Douglas. The Duke of Douglas, so long unmarried, unexpectedly married in the former year Miss Margaret Douglas of Mains, a ci-devante beauty and a woman of great force of character, who at onoo began to turn the Duke's attention to the desirability of inquiring into the truth of the birth of Lady Jane's son. In 1759, moreover, Colonel Steuart, by the death of his brother, became Sir John Steuart of GrandtuUy, Bart.^^ His first act of administration of this newly acquired estate was to grant a bond of provision for 50,000 merks to Archibald Douglas, nominatim as his son by Lady Jane Douglas, and he was with difficulty prevailed upon not to increase it whether his estate could support the burden or no ; and it must be pointed out here that there was never any attempt on the part of the GrandtuUy family to plead or deny that Archibald Douglas was not Sir John's younger son, though as such he was one of the next heirs of entail to that estate, as well as one of the possible heirs to the baronetcy. What followed is soon told. The Duchess of Douglas's ceaseless endeavours and constant friendship for Archibald Douglas wrought (though for a time it caused between the Duke and Duchess a temporary separation) a complete change in the Duke's attitude. In 1759 the Duke made a post- nuptial contract of marriage, where the remainder of his estate, failing the heirs of his body, was to his own nearest heirs. On 5th January, 1760, he revoked the settlement in favour of the Duke of Hamilton. On the 11th July, 1761, he executed a deed in favour of the heirs male of his body, whom failing to the heirs of the body of his father, whom failing to Lord 2«He died in June, 1764, having married thirdly, in 1761, the Hon. Helen Murray, fifth daughter of Alexander, Lord Elibank, who survived him forty -five years. Introduction. Douglas Hamilton, and by a separate deed named as his heir " Archibald Douglas Stewart, a minor and son of the deceased Lady Jane Douglas," his sister, and appointed as his tutors the Duchess of Douglas, Charles Duke of Queensberry, and others. The Duke himself died on 21st July, 1761, ten days afterwards, and it was in the following September, 1761, that Archibald Douglas or Steuart^^ was served heir to him, as his nephew, with the legal results we have already narrated. ^ Archibald Douglas, the successful litigant, bore his good fortune with the same equanimity with which he had borne his bad luck, and gained universal esteem. He married first, 13th June, 1771, Lady Lucy Graham, only daughter of William, second Duke of Montrose, who died 13th February, 1780. He married secondly, 13th May, 1783, Lady Frances Scott, sister of Henry, Duke of Buccleuch and Queensberry, who died in May, 1817. He was on 9th July, 1790, created a British peer, with the title of Lord Douglas of Douglas, and died 26th December, 1827. His eldest daughter, Jane Margaret Douglas, married in 1804 Henry James, Lord Montagu of Boughton, and it was to her daughter Lucy Elizabeth, Countess of Home, and her representative, the present Earl of Home, that the Douglas estates descended, their right having been established by the final decision of the House of Lords in ** The Douglas Cause." 39 Liord-Pre3ident Dundas. Judgments in the Douglas Cause pronounced by the Court of Session of Scotland. ^ Tuesday, 7th July, 1766. The Lord Prbsidbnt2— Since it may happen, my Lords, that ^JJ^j^jg^t this great cause may, by a division of your Lordships, come to my casting vote, I think it proper now to give you my opinion, and to lay before you fully the reasons of it. In order to bring the case distinctly before your Lordships, I shall first state the principles upon which the decision will proceed ; and these are contained in the 38th page of the defendant's memorial, and which is there exprest in the following words : — " The memorialist does not pretend to set up the acknowledg- ment of parents as of itself a probatio probata of filiation, nor is there the least occasion to do so in the present case ; but he contends that a proof of such acknowledgment, or even of habite and repute, is good presumptive evidence, and sufficient ground for a jury to serve him. Such service may indeed be challenged upon evidence offered, that the child is supposititious ; but so long as clear and undeniable evidence is not brought of the challenge, the verdict and proof on which it proceeded will stand in full force." In considering this great cause, I must notice that there are two kinds of evidence; 1st, direct or demonstrative, which excludes the possibility/ of the case being otherwise than it is represented by that evidence; 2nd, circumstantiate or moral evidence, which is all that we can expect in such cases as this before us ; and therefore I lay it down as a rule to take the evidence without enquiring into the bare possibility of the thing being otherwise. The simple fact before us resolves into this question, Is the defendant the son of Lady Jane Douglas or not? And I am sorry to say it, that my opinion in this great cause, after the utmost pains and attention which I could bestow, ^ These Speeches have been edited, unnecessary italics suppressed, and an attempt has been made to render the spelling of the names uniform, '^Robert Dundas of Arniston, born 1713: Lord President, 1760; died 1787. 41 The Douglas Cause. Lord is dearly against the defendant ; and that hj the evidence brought, I am fully and clearly convinced, that he is not the son of Lady Jane Douglas. If the story shall be involved and attended with concealment and mystery, and the tale told by the parties neither consistent nor uniform, this should awaken the attention of judges, and lead us to weigh the whole of these circumstances in the balance of justice, which I'm afraid in the present case will weigh down this defendant. Let us only consider the conduct of Lady Jane and Sir John, and see whether this will quadrate with the notion of a real birth, or a design of imposture. It is clear to me that their conduct is, upon the supposition of a true birth, improbable to the last degree. We see Lady Jane, when very far advanced in her pregnancy, undertaking a long, tedious, and fatiguing journey, and at the same time concealing from the generality of her acquaintances the object of that journey, though it appears that some of her friends, such as Mr. Hepburn of Keith, knew that Paris was the real place of destination ; and yet notwithstanding this, we see her lingering away her time at a most critical period, for a delicate lady with child, at Li^ge, Sedan, and Rheims. There is a strange inconsistency in the story of the pregnancy from first to last. Why not discover it in a more solemn manner to her friends? Why ostentatiously tell it to one, when with art she concealed it from another? Why was the marriage and pregnancy so purposely kept concealed? and why was she ashamed to disclose it to all the world? Or if she was near the time of her delivery when at Rheims, why did she not lay in there, where she could have so able assistance? or why, if she had resolved to leave Rheims and to go to Paris, did they leave their two maidservants, Isabel Walker and Effie Caw, behind them at Rheims? By way of excuse for their leaving Rheims, where they might have had the best assistance, Mrs. Hewit has told us the wonderful story of a lady (whom she would have us believe was Mrs. Andrieux, though it is clear it was not she) giving Lady Jane the advice to leave Rheims on account of the unskilful practitioners there; and this story, according to Mrs. Hewit, was told Lady Jane about the 6th of June, and yet she does not leave Rheims till the 2nd July. And as an excuse for leaving the servant maids at Rheims, the same witness has told us that they had no money to carry them to Paris, though it is clear they might have been transported 42 Judgments by the Court of Session. thither for the paltry expense of twelve shillings. But if their Lord money was run short at Rheims, and Paris was the place of their destination, why linger at Rheims, and be spending their last shilling in a place where, if the critical hour overtook her, she might have been in so great distress for want of able assistance? I beg leave to observe another thing here, which is, that Mrs. Hewit has told us that when they got to Paris they were run to their last guinea, whereas this is positively proved to be false by the letter of credit given them by Messrs. Khar and company, at Aix-la-Chapelle, upon Messrs. Paniers, bankers in Paris, for 1979 livres, and which letter of credit was payable either at Rheims or Paris, or any where else, when they should please to draw for it. Here it is worthy of remark that both Sir John and Mrs. Hewit have said that they got this money only upon the 10th July, the very day of the pretended birth. No mention at all of this at Godefroi's ; but if we consider the reason of fixing upon this special day and saying that the money was paid, when in Le Brune's, we shall find the falsehood necessary to carry on the story. I have said there were con- cealments and mystery in this affair from first to last ; and I must now recall your Lordships' attention to a train of this kind on the part of Sir John and of Lady Jane, both when at Rheims and at Paris. It was amazing, that when at Rheims, and when the pregnancy was by their account so much advanced, that a delivery next day would have been no surprise, that they should have concealed the whole affair from Mr. Mallifer and his family, persons of high rank and character, and who seem to have shown great respect towards them, and revealed it to so many others. When an Abbe Hibert is daily walking with her, and by degrees let into the secret, why was the same degree of confidence not shown to Mr. Mallifer and his family, from whom they were to have letters recommendatory to Paris? Why not acquaint Mr. Mallifer of the real design in going to Paris ? at least, why give him a false pretence for their going to Paris, which is clear from Mr. Mallifer's letter to Mons. Gk)de- froi at the Hotel Chalons, wherein Mr. Mallifer recommends them to Mons. Godefroi as Scots people of quality " going to Paris to buy things " ; and therein begs of him the favour to take care that they be not imposed upon. When they arrive at Paris, the same concealment and mystery runs through the whole of their conduct. Does Sir John call 43 The Douglas Cause. pS?ident ^^^ ^^® countrymen there? Does he call for Sir William Stewart, or for the Chevalier Johnston, Mrs. Hewit's cousin german ? No : He keeps himself entirely free of the haunts of his countrymen, though, if they were run to the last guinea, as Mrs. Hewit pretended, surely never man stood more in need of a friend. This is a strong circumstance indeed, and is not at all redargued by any thing the defendant has said upon the subject, more especially when we consider Sir John Steuart's remarkable fondness for his countrymen. Even after the 10th of July, when their second child was, according to their account, left at nurse with a woman whom they knew nothing about, and under the care of Pierre La Marre, whom they themselves acknowledge they did not know where to find ; would they not at least have told the Chevalier Johnston of this? And before they entrusted their sickly tender child into the hands of absolute strangers, would they not have instructed him to go and see it, or at least to have an eye upon the management he was to be under? When to all this I join, that all the letters wrote at that time by them from Paris to Britain, and else- where, are falsely dated from Rheims, and have a direct ten- dency to make every mortal believe they were then at Rheims, what conclusion can I possibly draw but that a story so unfairly told cannot be connected with truth? Indeed the falsehood appears so glaring, that it at once lays the foundation for its own detection. I have, in what I have said formerly, chosen to dwell mostly upon the proofs arising from the res gestcz, or conduct of the parties themselves ; because I must own, that I do not rest very much upon many parts of the parole evidence in this cause, either upon the one side or other. I go on ther^ fore to observe Sir John Steuart's own accounts of the matter, and the falsehoods and forgeries practised by him in order to gain belief to his story. Leaving the story of Pierre La Marre to be talked of afterwards, the first account given by Sir John Steuart of this matter, was in a note written by his own hand to Lady Schaw in the year 1756, wherein he expressly avers the delivery to have happened in the house of Madame Michelle, and at the same time Mrs. Hewit writes the Duke of Douglas a letter, expressly fixing upon the same house as the scene of the birth. There was then no mention of a Le Bruno's, and indeed this was never the house pitched on till after they both knew, that upon much enquiry by Sir James 44 Judgments by the Court of Session. Stewart and Principal Gordon, the house of Madame Michelle Lord ^^^ had been found out, and that no delivery had happened there. Then and no sooner was it, that Sir John Steuart alters his tone, writes a second note, transferring the scene to Le Bruno's in the Fauxbourg, and rearing up there the same number of persons as were said to have been present when the delivery was averred to have been in Michelle's ; and in this story does Mrs. Hewit afterwards join with Sir John. Here come in properly the famous four forged letters from Pierre La Marre, which appeared first to me upon Sir John Steuart's judicial declaration before your Lordships : it will be remembered, that it was upon cross-questioning him, that the improbable account which he there gives of these letters, led to the full discovery of the forgery. But why forge letters to support the truth? Could not La Marre himself be goti or might not certificates from him have been easily obtained? But, says the defendant, though I plead the acknowledgment of my parents as the legal presumption of my birth, yet I do not adhere to the circum- stantiate account given of that birth by my parents. Strange indeed ! that the acknowledgment of the parents should be pleaded by the son, and yet that that son should tell the Court that his father had averred falsehoods. It is indeed no wonder that the defendant should endeavour to shake himself loose of this declaration, because it is no doubt the foundation of the strongest parts of the evidence against him. In this, however, the hand of Providence remarkably appears, ever watchful over the interests of truth, and discovering the train of falsehoods by means of those very persons who at first invented them. Who but the parent could be examined in this cause upon the par- ticulars concerning the birth itself? Who knew any thing of the matter but Sir John and Mrs. Hewit only? For the many falsehoods contained in Sir John's declaration, and more par- ticularly for the story told by him of Pierre La Marre, which is proved to be utterly false in every single instance, the failure of memory upon the part of Sir John, as is alleged, is by no means a sufficient excuse ; for Sir John is exact and pointed in the whole of that account : more pains could not be taken by judges than were taken with him upon that occasion : Not only were the questions put to him in writing, and he allowed plenty of time to give his answers also in writing, but even after the first day's examination, when he had signed the D 45 The Douglas Cause, Lord declaration so far as emitted, we then allowed him to retract any thing in which he had been mistaken, but he never once retracted either as to the cause of his acquaintance with La Marre, or his being a Walloon, or indeed as to any other of the particulars of that long story told concerning La Marre. Leaving here Sir John's declaration, I proceed now to con- sider Lady Jane's account of the matter, which she gave to the late Countess of Stair. It is true, the Countess herself being dead, we can have no other proof of this account given by Lady Jane, but what is contained in the oath of the Hon. Mrs. Primrose, the Countess's own daughter, who has expressly told us the whole conversation as it was related to her by her mother the Countess of Stair herself. We have no reason therefore to doubt this evidence, when we consider the sensible and prudent behaviour of the Countess of Stair upon all occasions, which would naturally lead her to talk with Lady Jane of the extraordinary story of the birth. What then appears upon the oath of Miss Primrose? Lady Jane giving as a reason for her not coming to Britain to be delivered of these children, That she was sick at sea, and that that might have endangered both her life and that of the children she was pregnant with : Giving as a reason for the extraordinary step of leaving Rheims, where she could have had such able assistance, the very wonder- ful story about the unknown lady, who gave her advice to do so, on account of the danger of her being abused by the unskilful- ness of the practitioners there. And when Lady Stair with great propriety noticed to Lady Jane the air of concealment, and of mystery attending the delivery at Paris ; and that all things considered, her delivery should have rather been in a royal manner ; what excuse does Lady Jane make to Lady Stair? Says she, that was not possible for me to do, because I was not in Paris above half an hour or an hour before the delivery happened. What can be a more false account of the matter than this ? And to what can we attribute the answer given by Lady Jane, but that she was suddenly struck with the propriety of the observation made by the Countess of Stair as to her delivery, being so concealed and mysterious, and that it should rather have been after the royal manner. In which last observation, I suppose, the Countess of Stair alluded to the famed story of Constantia, wife to Henry the Second, who hear- ing that there were suspicions propagated, as if she intended to 46 Judgments by the Court of Session. procure a false birth, caused erect a royal tent in the midst of t®'^*.^ the army encamped in the plains of Palermo, and was there publicly delivered of her child. I come now to another particular of the conduct of Sir John Steuart and Lady Jane, and that is their never doing any thing to prove the birth, after they were acquainted of the doubts and ■suspicions which were entertained concerning it. It appears from the oath of Walter Colvile, cousin to Mrs. Hewit, That he heard these reports at a very early period, about three or four weeks after he received the letter acquainting him of the birth ; and it appears also from clear and undoubted evidence. That Lady Jane and Sir John were very early acquainted of these disadvantageous reports. Upon being so acquainted of these reports, it was surely natural for innocent people to have produced a proof, in order to vindicate their own character and the interest of their children; but what proof did they ever produce? Four forged letters, and Mrs. Hewit's oath, which I believe to be false. Various pretences have been used for their not getting these necessary proofs. Lady Jane thought herself affronted, and her honour attacked. True, it may be so — But why not, then, do something to defend that honour and to ascertain without doubt the birth of her children for whom she had so great regard? Why was a Madame Tewis applied to, to prove the pregnancy, when they bad at Paris a Pierre La Marre who was the man-midwife, and a Madame Le Brune, and her daughter who were both witnesses to this alleged delivery? Or if they wanted fully to ascertain the pregnancy by the best evidence that could be expected, why apply only to Madame Tewis, who was their first landlady at Aix-la-Chapelle, and whose house they left as early as the 5th January 1748, when they had Madame Scholle and Madame 'Gillesen, with the last of whom, particularly, they lodged until the 21st May, 1748, when they set out for Paris, and to whom, therefore, the symptoms of pregnancy, and more par- ticularly the bulk of Lady Jane, must have been more apparent than they possibly could have been to Madame Tewis. Put, then, all these circumstances in the conduct of the parties together, and what can we think, but that the story is not true? But yet, what I have hitherto said, by itself, is not sufficient to prove the reasons of reduction, for still the defendant may allege, That it is possible, that he might have 47 The Douglas Cause, Pr«sid t ^^^^ ^^'"'^ ^^ *^® house of a Madame Le Brune upon the 10th July 1748. No doubt it is still possible, but then the supposition of the defendant is unsupported by any evidence whatever, and is also fully contradicted and redargued by the plaintiffs. However, we shall proceed to examine this matter more accurately; and in the first place, consider the proof brought as to the housed And upon this point, I am clear, That the defendant has not only failed in proving the existence of the Madame Le Brune, in whose house the delivery is said to have happened, but that the plaintiffs have brought sufficient evi- dence of the absolute non-existence of such a person. There is indeed one of that name discovered, who was a Garde Malade, or sick nurse, but does this person in the least answer the precise and pointed description given of their Madame Le Brune, both by Sir John Steuart and Mrs. Hewiti not to say that it is highly incredible, That a Lady of Lady Jane's high rank should, after having come to Paris to be delivered, take up her residence in so wretched an apartment as those of the Garde Malade's, when it is in proof they had money enough to hire more respectable lodgings. But, besides all, there i& another sufficient reason to prevent the application of this Le Brune, who was the Garde Malade, to the present question, and that is, that this woman herself was only a lodger, in the house of one Madame Travers. Sir John has said. That the Madame Le Brune, in whose house the delivery happened, was recommended to him by Mons. Godefroi, whereas Godefroi absolutely denies that he ever gave such a recommendation. Sir John has also said, That she was recommended to them by La Marre ; but this is incredible, because it is acknowledged by Sir John himself, That he never saw Pierre La Marre at the house of Madame Le Brune till the day of the delivery. I come now to another material particular in this cause,, and that is, the very suspicious appea.rance of Sir John Steuart and Lady Jane at the time of their going to the Hotel D'Anjou kept by Madame Michelle. When they come there,, which, according to Mrs. Hewit's first account, was upon the 9th day after the delivery in Le Brune's, they appear there without either nurse or child; and what follows? they are to go next day to the country to bring in their child ; accordingly they do go to the country, and return again with a child and a nurse, the child almost starved to death for want of milk^ 48 Judgments by the Court of Session. and the nurse a poor wretched thief, who appears to have been Lord suddenly picked up upon the streets of Paris, upon some emergency when hurry and confusion would not allow them time to get a better one. In short, I would try to find one unsuspicious circumstance, but cannot. The time of the delivery is fixed for the 10th July. Here, the letters wrote by Sir John and Mrs. Hewit, and dated the 10th and 11th of July, without making any mention of the delivery at all, fall properly to be considered. And whatever may be the effect of the defendant's arguments as to the rest of them, yet it stands acknowledged. That there was one of those actually wrote upon the tenth. And if we can fix one to be of that date, how is it possible to imagine, That this should have taken no notice of the delivery, or at least of the approaching de- livery, when by Mrs. Hewit's account. Lady Jane had been ill the whole night before the delivery? When to this circum- stance of the letters, we add the different accounts given by Mrs. Hewit about the time between the delivery and their removal from Le Brune's; when we see her contradicting her- self upon this particular ; when we find her swearing solemnly repeated times, That it was upon the ninth day after the delivery, that they removed from Le Brune's ; and afterwards in her letter to Mr. Harper, the minister, correcting this, and fixing the sixth day after the birth, as the time of removal from Le Brune's to Michelle's, can we think all this conduct consistent with the truth? But still, says the defendant, in spite of the evidence now produced, the delivery may be true as it is set forth to have happened; as there is no piece of evidence which directly excludes the possibility of its having ■so happened. But in my opinion there is such evidence pro- duced by the plaintiffs ; and what t mean is Godefroi's books, •confirmed by the united testimony of him and his wife. The books themselves, in my opinion, remain liable to no solid 'Objection, and deserving the greatest credit. But when to this we add their oaths, in which there appears no suspicion of perjury, and in which they set forth so strong a cause of remembrance as Mens. Mallifer's letter, recommending them to their house, can we possibly believe that all this is a mis- take? If we do so, it is supposing every thing on one side, ^against clear and convincing evidence brought upon the other side. I told you before, that I reserved the evidence as to 49 The Douglas Cause, Lord the existence of the Pierre La Marre, to be talked of afterwards- I will notice that now, and I must say, That it was the evidence brought by the defendant, that has satisfied me to be of opinion, That the story of Pierre La Marre's being the accoucheur is a mere fiction. For what is the design of the defendant's, evidence upon this head? is it not to redargue that of Sir John Steuart, which is just in so many words tellings your Lordships, That you are not to believe his accounts of La Marre, but that the defendant has now found out another La Marre. As to- the oath of Menager, wherein he relates a conversation with La Marre, of his (La Marre's) having delivered a foreign lady of twins, whatever truth be in it, it cannot suit with the^ account of Lady Jane Douglas's delivery. In point of time,, it is clearly long prior to her delivery, and is fixed to have been in 1747. This circumstance appears so convincing upon this point, that there is no need to bring out any other circumstances, of which there are many. Having now run through most of the capital points in this great cause, I shall speak a little of the enlevement of Mignon and Sanry's children. The first of these certainly happened very oddly, at the very time when Sir John and Lady Jane are able to give no account of themselves, and when they appeared at the house of Michelle,, under such suspicious circumstances as I have formerly noticed. The whole story told by Sir John Steuart and Mrs. Hewit, about the manner of their going out to bring their first child to Michelle's, is inconsistent, contradictory, and suspicious*. throughout. Will they only give a reason why they did not go to Mons. Godefroi's upon their return to Paris in 1749, in order to bring away their second child ; or can they so much as tell us where they were in Paris during the time? they were searching after their second child? No — They cannot tell where they lodged, it was somewhere or other in Paris, but of that place, or street, or house, they can give no sort of description. At this very critical period, was the child of Sanry stole from its parents, under a false pretence f And the foreigners, who so took the child, told its parents they would hear of them at the inn called Croix de Fer. I do not say, that the plaintiffs have brought the fact of the Enleve- ments directly home to Sir John and Lady Jane ; I only say, that alongst with such a concatenation of other circumstancea they have considerable weight upon my mind. SO Judgments by the Court of Session. These are the material things upon which I ground my t®*^. . opinion, and I shall now conclude with a few general observa- tions upon this cause, 1st. I think the conduct of both parties in their management of the cause has been blameless. As to the cry about the plaintiffs changing their ground, and resorting to the evidence of Mens. Godefroi's books, after they had founded on Michelle's, I think it nothing to the purpose. 2dly, I have given all the weight to the tractatus parentum, pleaded for by the defendant, which I think it deservea. 3dly, Though I do not choose to enter upon the motives that might induce Lady Jane and Sir John to commit this crime, yet I cannot but observe, That their professed view seems to have been, by means of false children, to get possession of the estate of Douglas; a great part of which, it is clear. Lady Jane thought would at any rate descend to her and her children. 4thly, As to the death-bed declarations, upon which so much weight has been laid by this defendant, I am old enough to have seen. That where persons have once committed desperate crimes, they too often carry them on even to death : perhaps hoping for that mercy from their Maker, which the enormity of their crimes would not allow them to receive here. 5thly, As to the pregnancy, I do not think the proof brought in sup- port of this by the defendant, sufficient to balance the whole of the other proofs brought by the plaintiffs. Upon the whole, I am clear for sustaining the reasons of reduction. Immediately after the Lord President had finished his speech, it was agreed by their Lordships, That they should deliver their opinions according to seniority, and therefore Lord Strichen, the senior judge, was called upon to give his opinion. Lord Strichen^ — The proof of the pregnancy strikes me so Lord Strieheo strongly in this cause, that I own I cannot get over it. And more particularly, I lay a great deal of weight upon the Earl of Crawford's letter to the Duke of Douglas upon this subject. I cannot but think that pregnancy may be proved, so as to infer an absolute certainty of the fact. We know the seasons 1 Alexander Fraser of Strichen, appointed, with the title of Lord Strichen, 1730: died 1775. The Douglas Cause. Lord Striehen of the weather by general observation, and why may not the advancement of pregnancy be ascertained by similar observa- tion? I see it proved beyond controversy, That Lady Jane gradually encreased in her size : Isabel Walker depones to this so explicitly, and I believe with so much honesty, that I own it is a thing I cannot get over. If then pregnant, it is clear, that she must have been delivered, or elsa have had either a miscarriage or an abortion, which, if so, it was undoubtedly incumbent on the plaintiffs to prove it, as the pregnancy once fully ascertained, lays the presumption for a full birth. This being the case, I cannot think that the defendant is bound to prove his own birth. This must rest upon the acknowledg- ment of his parents, and upon their uniform tractatus or treatment of him as their son. It is incumbent upon the plaintiffs to disprove the birth by clear and positive evidence : and none such, in my opinion, have they been able to bring. On the contrary, the defendant, besides the direct and positive testimony of one witness, has brought an incredible weight of circumstances corroborative of the truth of his birth. If to this we add, that the whole story of imposture as set forth by the plaintiffs is highly improbable, we shall soon find the balance incline to the defendant. Let us examine this story of the plaintiffs, and see if they have probability on the side of their hypothesis. Was it credible, that when Lady Jane and Sir John were so poor, that it is proved they could scarcely maintain themselves, they should burden themselves with the danger of so much guilt ; and the more poverty, provide for the children of other people? Was it credible, that when one child might have served the purpose, they would have burdened themselves with two? or that they should have taken a weakly tender child to support a stronger one? Is it to be believed, that after they had got the imposture of the first child accom- plished, they would have remained so long in and about Paris, appearing in public, and exposed to the view of every person that might be in search of them? or upon leaving Paris, is it credible. That they would have gone to Rheims, and remained there for the space of fifteen months? It was surely much more natural for them to have left France altogether, after having committed so great a crime. But, not only do they remain quietly and peaceably so long at Rheims, but they even go back to Paris a second time, to pick up a second 5* Judgments by the Court of Session. child ; which second child, when they did find, corresponded Lord Striehen exactly to the accounts which they had given of him fifteen months before they saw him, or knew any thing about him. Such is the story as set forth by the plaintiffs ; improbable it is, surely, to the last degree. On the other hand, the conduct of Sir John Steuart and Lady Jane Douglas is very consistent with the notion of a true birth. Much has been said about the false accounts given hj Sir John Steuart, concerning the particulars of this birth; and the inference drawn from Sir John Steuart' s account of the matter, is, that the defendant is not his son. But I humbly apprehend, that had Sir John at the time of his •declaration, even acknowledged that the defendant was not his son, this would not have been sufficient to have set him aside, after he had attained the possession of his estate, in consequence of his own acknowledgment of him as his son. Upon this point, I refer to the great Lord Stair, who expresses himself in the following words, " Filiation is presumed from marriage, whereby the children are presumed to be the lawful children of those who are proved to have been married; which is yet more pregnant and favourable on the part of the ■children, to give them the right of aliment and succession, and is the probation of the marriage betwixt those who are pre- sumed parents, which is so strong a presumption, 2 That the mother acknowledging another father, than he that is married to her, will not prejudice the children, much less will the assertion of the father, that the children are not his, though he condescend upon another to be the true father : Yet if both the married persons do acknowledge. That the child is not procreate betwixt them, but by another as father, who should also acknowledge the same and own the child, it would elude the presumption; but if both married persons had owned and treated the child as theirs, the concurring testimonies of all the three would not prejudice the child in the rights of Buccession to his reputed father and mother." The oonolusion which we draw from any falsehoods and con- tradictions, which may appear in Sir John's account of the matter, is, that the defendant is not his son; but we see, upon the above great authority in law, That had Sir John and Lady 2 Lord Stair's Institution! of the Laws of Scotland, Book 4, Tit. 45. 53 The Douglas Cause. U»pd Striehen Jane both owned that he was not their son, after having treated him uniformly as such for any length of time, he must, nevertheless, have been maintained in the possession of his state. This being the caae, I shall make a few observations upon the other parta of the proof brought by the plaintiffs, no part of which, excepting that by Mons. Godefroi's books, and his oath,^ is totally inconsistent with the truth of the birth, or excludes the possibility of it. It is merely of the negative kind, which can seldom redargue direct positive testimony. I apply thia observation, particularly, to the proof attempted to be brought of the non-existence of a La Marre and a Le Brune, against which negative proof, we have the direct and positive testimony of Sir John Steuart and Mrs. Hewit, That Le Brune's house was, the place of the delivery, she herself one of the witnesses to it, and La Marre the accoucheur. The defendant has shown clearly there was a La Marre, an accoucheur in Paris at the time, and that he delivered a foreign lady of advanced age of twins, who (as La Marre said) would be people of great wealth and rank in their own country; and that the one of them was. strong and healthy, the other weak and sickly. Taking, then,, all these things together, it is not only possible, but highly probable, that the whole account given by Sir John Steuart and Lady Jane Douglas is true. The plaintiffs lay great stress upon Godefroi's books, together with the oath of him and his wife^ and assert. That they have thereby proved the alibi from the fourth to the fourteenth July. I must here observe, that we ought to have had the books themselves produced by the plain- tiffs, and that the producing a notarial copy of them is not enough. But, however, let us look into the entries made in these books, we shall see so many blanks, so much indistinctness: and inaccuracy, that without believing implicitly in Mons. Godefroi's memory, we cannot pay regard to them. They havo sworn indeed, positively. That the blank article of the 4th of July, does relate to Sir John Steuart and his company. But ift this, it appears to me, they are very probably both mistaken. But, however that be, the proof by their oaths singly supplatory of their books, which I see are liable to so much error, will not be sufficient to set aside the whole evidence, direct and circum- stantiate, which the defendant has brought in support of hi» birth. Much stress has been laid upon an alledged detection of 54 Judgments by the Court of Session. falsehood on the part of Sir John Steuart and Mrs. Hewit, in Lord Stpiehen saying, that they were in want of money at Paris. It is true, that it is in proof. That Sir John Steuart had letters of credit for a pretty considerable sum, but how do we know that Sir John had this money free in his pocket after he received it; very probably he had not, as he was a thoughtless dissipated man; and therefore, the inference drawn from this letter of credit upon Paris is too strong. That they were in want of money when in Paris, is positively swore to by both Sir John and Mrs. Hewit. That it may have been so, I can easily believe. It will account for very many things in their conduct, which may now appear surprising to us. As to the two Enlevements, neither of them applies to Sir John Steuart, it is conjecture merely. Upon the whole, I am clearly for assoilzing the defendant. The Douglas Cause. Wednesday, 8th July, 1766. Lord KaiuM Loj^ Kaiubs^ — I shall give your Lordsliips the reasons of my opinion in this cause as shortly as possible. The first light in which I view this matter is, Whether, if Mr. Douglas (whom in this argument I oall by that name to distinguish the person) were now requiring to be served heir to the Duke of Douglas, we would serve him heirl If this was the state of the question now, I own I should be much difficulted; as I was exceedingly struck with the circumstances tliat were mentioned yesterday with so nmoli weight from the chair. But the fact is. That Mr. Douglas is already served heir by a verdict of the jury; and therefore the question is, if the proofs brought by the plaintiffs be sufficient to void that verdict, and to turn him out of the possession of his state, in which he is now so firmly settled? In my opinion, the proof brought by the plaintiffs is not sufficient for this purpose, though perhaps it might have been sufficient to prevent his being served heir at first. There is one thing which runs through all the proofs in this cause, and to notice which is very material; that is, a certain confusion naturally arising from enquiring into such a number of facts that have happened at such a distance of time. And therefore we shall be very apt to err if we draw strong conse- quences from facta, which, for the reason I have given, cannot be oompleatly ascertained. I will give some instances of this. There is evidence brought, That Lady Jane and Sir John Steuart brought their French servant to the borders of France only, and that they there dropt him.^ This, when it was first alledged, might be considered as a very strong circumstance to prove a fraud. Whereas now it comes out clearly, that that servant was a French deserter, and so dared not enter the kingdom of France. In this case therefore we sliould have been mistaken, if we had drawn the consequence which the faot> as at first set forth. * Henrr Home ci Kaims or Karnes, appointed, with the title of Lord [7S8; diedlTSS. * Sm Historioal Nanativo, p. S8. 56 Lord Karnes. From a I'liid. Judgments by the Court of Session. seemed well to bear. I will mention another thing which strikes Lord Kames me in the same view. I mean that of Lady Jane's loitering so long upon the road when drawing so near to the time of her delivery. Upon the supposition of a true birth, she must have had her reasons for doing so, which perhaps now cannot appear to us, for the reason which I have mentioned before. On the other hand, if we suppose an imposture intended, it is clear, that the sooner they accomplished it the better. And her loitering so long upon the road, when she pretended to be so big with child, oould have no other tendency than to blow up the whole scheme they had laid. It is proved, that they left their maid servants at Rheims, and yet it is said that these maid servants were accomplices. But taking it. That they were not accomplices, why not entrust the affair to them, particularly to Isabel Walker, when since it appears that (upon the supposi- tion of an imposture I mean) she has actually perjured herself, and endangered her soul for the sake of the defendant? So standing the affair, I want something whereby I can explain the conduct of the parties consistently with a real birth, and avoid what appears to me a danger of drawing strong conse- quences from facts, which cannot be clearly settled. The proof which the defendant has brought of Lady Jane's pregnancy, is just what I wanted. For if one holds this proof to be true, all the difficulties must vanish. Of the pregnancy, I think, there is the most oompleat evidence that can be produced. I have always thought, from the beginning of this cause, that the stress of it would lie here : and therefore, to do away the proof of the pregnancy, I expected that the plaintiffs would have brought a proof of a miscarriage by Lady Jane. But we are not now in so strait a case : the service has ascertained the state of the defendant, in which he must be continued; and that service held pro veritate, except the plaintiffs oould have brought direct and positive evidence of the contrary. What always touched me the most in this cause, was the forged letters. Yet I own I cannot give this circumstance so much weight as to conclude from it, that the whole is absolutely false. I am far from thinking that the evidence of Sir John Steuart was not good against his son; but then I can explain the whole of that evidence so as to make it not absolutely subversive of the truth of the birth. The forgery of the letters was no doubt an unjusti- fiable circumstance in the conduct of Sir John, but then I see 57 The Douglas Cause. Lord Kames that these letters were meant as an interim proof lo the Duke of Douglas only; for it is clear to me, that there was a La Marre, and that Sir John did, at some time or other, correspond with him. The forgery of the letters then was a circumstance of conduct highly blameable in Sir John Steuart, though I do not tibink it was i^uch unlike the Toumelle process, which to me seems to have been intended by the plaintiffs to stab the defendant behind his back. To me nothing can appear in a more odious light than this Toumelle process does, though I do not say that the gentleman who conducted it had any fraudulent intention in so doing. The plaintiffs' managers seem from the very beginning to have been convinced of the imposture, and therefore it would appear that they thought every thing lawful that would lead to a detection. ^Pd Lord AuchinlbckI — I have considered the cause with all the Auehinleek , ■,■,■■,■, attention m my power, and am not at all surprised that your Lordships should differ in opinion about it, when I consider the immensity of the proofs, and the long laboured argument upon these proofs. In considering this cause I endeavoured to take care not to be as it were drawn off at the tangent, and was always willing to listen to any further evidence that could be got. I was therefore very glad to have Isabel Walker examined again. To the questions which I thought material, this witness answered pointedly and distinctly ; and though she underwent an examinar tion of two days from the plaintiffs, with the special view, as appeared, of making her contradict her former evidence, yet, except in one trifling instance, she kept her temper throughout the whole, and had to me so strong an appearance of integrity, that I do believe that everything she has swore is agreeable to truth. Before I enter into the cause, I mnst premise a few general observations. In all questions about filiation, sceptical people may have opportunities of raising abundance of doubts; as it is possible that wives may be unfaithful, nurses false to their charge, and that they may both conspire to bring in false children. Yet, though such things may happen in almost every possible case, yet the law will determine such questions upon general principles, requiring a legal certainty in filiation, not ^ Alexander Boswell of Auchiuleck, appointed, with the title of Lord Auehinleek, 1754 ; died 1782. 58 Judgments by the Court of Session. certainty in the abstract. Of this daily instances occur in thi« i**'*Jj_j3^ €ourt. And in the case of alledged bastardy particularly, the law will take its course, and hold the child to be lawful, except there be absolute impossibility of its being the child of the liusband. Indeed, if we had not these rules, every thing would run into absolute confusion. I would observe further, that if A person is acknowledged by a married couple to be their child, this is legal evidence of it; and such a train of acknowledgment must be held to be a probatio probata or pro veritate, till the 'contrary be proved by clear and undoubted evidence. The longer it is before the challenge of such a person's birth is brought, the harder it is to get the better of this legal presumption. If the case of Douglas had been like that of Kinnaird, the argument from the parents' acknowledgment would not have applied; but here there is a long course of acknowledgment for the space of many years together, with the warmest affection on the part of Lady Jane; and what was very remarkable, though in very great poverty, neither Sir John nor her were ever heard to grudge their giving these children a share of the very little they liad. The defendant must be a stranger to the circumstances of his birth, and so cannot be answerable for the conduct of his managers. It is not in this case as upon a criminal indictment, where the guilt of the prisoner may often appear from his behaviour, from his looks, and from the shape of his defences. These are the general principles, which, applied to this case, will, in my opinion, direct the decision of it. However, I must observe farther, that I could have wished that we could have Tiad a more full, clear, and satisfying evidence than we have ; and farther, that this process had taken rise at a time when there were no bye motives to bring it, instead of its being brought immediately after^ the defendant had defeated Duke Hamilton in point of law. I own that I cannot get out of my view the method in which this process was raised and conducted. This is material, because it will account for many singularities occur- ring in this cause. Instead of applying for an act and com- 2 If his words are here correctly reported, it is difficult to think that Lord Auchinleck was right in this. The decision of the Court of Session against the action of the Duke of Hamilton and Lord Selkirk v. Archibald Douglas, was dated 9th December, 1762. The new action, out of which " The Douglas Cause " arose, was raised on 7th December, 1762. [Historical Introduction, " Narrative of the Cause," p. 15.] 59 The Douglas Cause. Lop* mission from this Court to bring a proof of the imposture, the plaintiffs were pleased to bring their criminal action before the parliament of Paris, and procured a monitoire important, which treats Sir John Steuart and Mrs. Hewit as already convicted of the supposition of children. And under the word Quidam, makes the thing as plain as if they had put in the initials of their names. I did not condemn this process before the Tournelle because it was, unfashionable, but because it was unjust and oppressive to the last degree; and I think I can give pointed evidence, that this my opinion was well founded. I shall give two or three instances which will sufficiently explain what I mean. In a conversation betwixt Miss Louisa Hibert at Rheims, and Mr. Andrew Stuart, it appears, that at first the lady told him that she observed the pregnancy; whereas, after the Tour- nelle process, and the publication of the monitoire, she retracted this notion, and swore the direct contrary. Another instance of this appears from the conduct of Fran9ois La Marre, brother to the famous Pierre La Marre. Mr. d'Anjou, procureur for the plaintiffs in Paris, in his private memorial says, that Fran9ois La Marre told him, that his brother Pierre La Marre wag intimate with a Madame Le Brune, and that he had taught her midwifery. From a second note or jotting of Mr. d'Anjou's, it appears that the other party had been with Fran9ois La Marre, and that he told them every thing but the information of his brother's acquaintance with Le Brune. But after all, when this Mr. Fran9ois La Marre is swore upon our act and commission, he says he knew nothing at all about his brother's acquaintance with Le Brune. Madame Michelle is another instance of the miserable bad effects of this Tournelle process. Upon her being first discovered she said, That when Madame Steuart-Douglas came to her house, she had all the appearance of a woman recently delivered. In short, if I could believe the witnesses adduced after the Tournelle process, and the pro- ceedings upon it, I would fairly acknowledge that the pregnancy is disproved by these witnesses. Madame Sautry, the mantua- maker at Rheims, makes strong endeavours to disprove the pregnancy; she even measures Lady Jane to make sure work of it. When we look into the plainte to the parliament of Paris they appear to be satisfied that Lady Jane had every appearance of pregnancy ; but after the monitoire appeared, the memories of the witnesses underwent a great alteration, some 60 Judgments by the Court of Session. of them being very much weakened in this particular, when Lord others were as much improved. Having thus taken a general view of the proof brought by the plaintiffs in this cause, I have only to add, that I pay no great credit either to the books of Police, or to those of the Hotels in Paris. The plaintiffs at first set forth, that these books were infallibly sure, and liable to no errors or mistakes; whereas to me it really appears to be a battle of books betwixt the respective hotels. Such is the evidence upon which we are to determine this great cause, exception somewhat as to the conduct of parties. The proof against the defendant may be reduced to two general heads. 1st, Things exclusive of the truth of the birth, such as Lady Jane's age, letters of false dates, the enlevements, non-existence of La Marre and Le Brune, ust these proofs be, where there is both a direct and a circumstantiate proof of the birth, as is the case here. I shall consider first the proof BO brought by this defendant, and then the proofs brought by the plaintiffs, upon which they would have us to set his proof aside. The defendant's proof naturally divides itself into two principal parts, the proof of Lady Jane's pregnancy, and the proof of the delivery. And first, as to the pregnancy, in spite of all the plaintiffs have advanced as to the uncertainty and fallibility of such proof of pregnancy, I must, according to all the lawyers*^ opinions I have ever read upon this subject, hold pregnancy to be a thing capable of a certain proof : And whatever a sceptical physician may have given as his opinion in this cause, as to the uncertainty of the proof of pregnancy, yet I regard not his opinion either, for the reason which I have now given. This being the case, I go on to enquire whether or not the pregnancy of Lady Jane Douglas is proved : And that it is proved, I am clear, from the oaths of Mrs. Hewit and Isabel Walker, and from the declarations of the other maid, Effie Caw, who died before she could be put upon oath in this cause. And all their evidence stands so strongly supported by the oath of Mrs. Hepburn of Keith, and so pointedly confirmed by a number of other respectable persons who had the most intimate acquaint- ance with, and most frequent opportunities of seeing Lady Jane at that time ; that I can have no doubt of the matter. Against this the negative evidence brought by the plaintiffs can never be held sufficient. And indeed, it does appear, that the plain- tiffs themselves were convinced of the pregnancy: not only from their first plainte to the parliament of Paris, but also from the testimony of Sir William Stewart in this cause ; who deposes. That in a conversation which Mr. Andrew Stuart had with tho honourable Mr. Murray at Paris, he (Mr. Andrew Stuart) owned to Mr. Murray, " That he had all the proofs in the world of Lady Jane's pregnancy, but none of her delivery." I come now to consider the proof of the delivery itself. 64 Judgments by the Court of Session. This, indeed, rests upon the testimony of Sir John and Mrs. Lord Goalston Hewit, who were the only witnesses that can be found to the •act of delivery. But then it falls to be noticed, that their direct and positive harmony to the fact is confirmed by a train of such circumstances, and these circumstances fall in so exactly with the account given by Sir John and Mrs. Hewit, that they afford conviction to my mind, as strong a^ if so many more witnesses had swore directly to the fact. The circum- stances which I mean, are contained in the oaths of Doctor Menager, and Madame Garnier, the nurse of the second child. It would have been, indeed, next to a miracle, if Sir John Steuart, in order to accomplish this alledged imposture, should have pitched upon Pierre La Marre, to be the fictitious accoucheur, who, as he himself told to Doctor Menager, had about that time delivered a foreign lady of high rank, and of an advanced age, of twins, the youngest of whom was intrusted to his (La Marre' s) care to be nursed. But this is not all; jou have Madame Garnier herself swearing expressly. That «he nursed a child given to her by Mr. P. La Marre, and that he told her to take exceeding great care of the child, because it was belonging to foreigners, people of distinction; ^nd might be a rich man in his own country. If, to all thisi, we add, the accidental manner in which both Doctor Menager and Madame Garnier the nurse were discovered, it must estab- lish the credibility of their testimony beyond doubt. And I am really convinced. That if Giles and Franyois La Marre had spoke out the truth, the evidence upon these articles which I have narrated would not have been liable even to the shadow of an objection. But even, supposing that there had been less proof of the act of delivery, either by witnesses or by circumstances, it falls to be noticed, That the two proofs of pregnancy and delivery mutually assist each other, and estab- lish the one great point sought after, viz., that there was really a delivery. Yea, had there been no proof at all brought of the act of delivery, and which may have been the case often, as the act of delivery is often transient and even in a moment ; yet, as she is clearly proved to have been pregnant when she went to Paris, the law would have presumed. That she was there delivered according to the account she herself gives us. As the proof of the circumstances before, so the proof of what happened after the delivery convinces me, that there is no falsehood in this case. We have Lady Jane displaying upon 65 The Douglas Cause, Lord Coalston every occasion the etrongeet maternal affection for theift children. You have the depositions of I believe a hundred of witnesses, that the second boy Sholto was the very picture of Lady Jane. A circumstance which has its weight with me, considering the sense and character of the people wha affirm it, and as I see that every lawyer who has wrote upon Buch questions as this, treats of the similitude of features as being a presumption to establish a real birth: The plaintiffs have, in order to support their plea, found- it necessary to discredit the testimony of the witnesses who- had deposed to the pregnancy; and more particularly they have attacked with all their force the credibility of Mrs. Hewit and Isabel Walker, two persons who it is in proof had always maintained characters free of the least exception. BotK these witnesses were examined in your Lordships' presence,, Mrs. Hewit several times, and Mrs. Walker once; and in my opinion delivered their testimonies with such constancy and firmness as nothing but truth could inspire, and which led me- firmly to believe all that they respectively swore. There are indeed in their accounts of the matter a few trifling contra- dictions and variations in some of the most minute mattera of their detail; which, instead of being either wonderful or suspicious, is a circumstance which may naturally be expected to happen after so long an elapse of time, and instead of lessen- ing (in my view) increases the credit due to their story. I therefore hold the proof which the plaintiffs have brought to be by no means sufficient to discredit the testimony either of the one or the other of these capital witnesses. I have thus run through the bulk of the proof brought by the defendant,, and which it is to be considered he was not obliged to bring,, and shall therefore proceed to examine with as much accuracy as I can the proof brought by the plaintiffs. The plaintiffs^ proof is not pretended to be direct or positive, it is circum- stantiate wholly. I have ever considered it as an uncontra- vertable principle of law, that wherever there is a proof upon one side by credible witnessess (which is the case here) this cannot be shaken by a proof of circumstances, when these cir- cumstances are not inconsistent with, nor exclusive of the principal alledgeance established by witnesses. I will give one instance in the proofs which the law admits in the case of theft. This crime is generally proved by a train of cir- cumstances ; that the person charged with the theft was found 66 Judgments by the Court of Session. •with the stoUen goods in his possession, that he was habite Lord Coalstoa and repute a thief, or such like circumstances. In order to free himself from the charge attempted to be proved against him by such a train of circumstances, the prisoner at the bar generally alledges that he came by the goods in a lawful manner. And if he shall be able, by t&e testimony of two unsuspected witnesses, to prove this fact, the whole circum- stantiate evidence reared up against him falls to the ground at once; and that for this good reason, that these circum- stances, though they be fully proved, are not inconsistent with the alledgeance of the prisoner proved by direct testimony. If then we shall take a view of the various circumstances adduced by the plaintiffs, we shall be convinced that they might have all happened consistently with the defendant's hypothesis. For many of the most material of these suspicious circumstances the defendant has been able to account; and though they had not been accounted for, yet they did not apply. As to the declaration of the defendant's father. Sir John, I shall only barely mention, that through the whole of that examination. Sir John shewed not the least consciousness of guilt. As to the four letters from Pierre La Marre, which are alledged to be forged, I must observe in the first place, that I am not satisfied that these letters were really forgeries by Sir John. And 2dly, That though we suppose them to be forged, yet this cannot defeat the direct and circumstantiate evidence brought by the defendant, and which does not rest upon any after act or deed of his father Sir John. As to the alibi in Godefroi's, I pay no regard to his books ; and these are supplied by his oath, in which it is highly probable to me he is mistaken, yet they are not sufficient to defeat the whole of the evidence on the side of the defendant. I now draw towards a conclusion, and have only to add a few general observations. The system of the plaintiffs appears to me incredible in all its parts. Lady Jane is clearly proved to have been capable to have children. Why not then have children? Is it at all credible that upon their return from Rheims to Paris, when they had only picked up one child, that they should have given out to their friends there and elsewhere, that they had two. Yea, might not this circum- stance, taken by itself, have afforded ground for an almost immediate detection? When come to Rheims, they give out that their second child, whom according to the plaintiffs they 67 The Douglas Cause. LoFdfCoal9ton had not yet picked up, was a sickly, tender infant. But this is not all, for at the distance of sixteen months after this, the child they bring with them from Paris was found exactly to answer the description given of him. Upon the supposition of an imposture, this is all truly miraculous. Lady Jane Douglas's private letters to Sir John and her other friends upon the subject of her children, are wrote in a stile so affectionate and tender, so unconstrained and natural, that they afford full conviction to me of two things: 1st, That they were never intended for public inspection; and 2dly, That they [come ?] from an innocent mind oppressed with misfortunes, though free of guilt. Shall we then, my Lords, after so clear a proof on the part of the defendant, upon which he has been in possession of his state to the age of manhood, deprive him of his illustrious birth and princely estate ; and, upon a moatly collection of inconclusive circumstances, send him back to be accounted the son of an infamous beggar, who has perjured herself in the face of your Lordships? One thing more, and I have done. The proceedings in France, in consequence of the Tournelle process and monitoire, struck me with horror and indignation ; and more particularly I was shocked to see a British act and commission garbled by an arret of the French king. Upon the whole, I am convinced that this defendant is the son of Lady Jane Douglas, and therefore that he falls to be assoilzied. 68 Judgments by the Court of Session. Thursday, gth July, 1766. Lord Barjarg^ — In giving my opinion upon this cause, I do Lord Bapjai^ not think it necessary to recapitulate much ; it will be suffi- cient to trace some of the outlines of the proof, and to draw the consequence from these facts so established. The question before us is a point of fact merely; that is, Whether or not the defendant is the son of Lady Jane Douglas? Upon whom the onus prohandi is to be laid, is a preliminary point, upon which I cannot agree to adopt the arguments on either side, both sides having carried them too far. We can get but few rules of law to apply to such circumstantiate cases ; but the following rules seem to me to be well founded in reason and sense : 1st, It is not sufficient for the defendant to say, that as he stands in possession upon a verdict, therefore he is obliged to bring no further evidence; 2dly, Neither are the pursuers to be excused from their proof. It is incumbent upon them to point out what defects there may be in the evidence upon which the verdict proceeded, and to bring what farther evidence of its falsehood they can : and upon the whole of that evidence we must pronounce judgment accordingly, taking into our view €very fact and circumstance more or less material, as they stand more or less connected with the material object in view; that is, the birth of the defendant. From the very nature of the evidence, the plaintiffs were led to contravert the pregnancy, because pregnancy is inseparably connected with the delivery, and yet I do not think that the plaintiffs have fully disproved the pregnancy. Indeed the appearances of pregnancy at least, are established without doubt when at Aix and Liege; but from the time that Lady Jane leaves Liege, that appearance becomes more uncertain, and grows more feeble, as they ad- vance nearer to Paris, the place of their destination. Indeed Lady Jane past quickly through a strange country, which is a circumstance that may account for people's inattention to her ; and as to those who have sworn so pointedly to the pregnancy, ^ James Erskine of Barjarg, and afterwards of Alva, appointed, with the title of Lord Barjarg, 1761 ; died. Senior Judge in Great Britain, 1796. The Douglas Cause. Lord Barjarg they might be deceived with the appearance, and think it real. Perhaps an actual and real pregnancy cannot be cer- tainly proved ; there are many diseases that imitate pregnancy ; and when to this I add the risque that Lady Jane ran by long journies, rough and bad roads, and bad machines, I am led to conclude, that notwithstanding the appearance of pregnancy, which is proved, yet the defendant is not thereby relieved of bringing probable evidence of his birth. It is remarkable in going over this proof, that Lady Jan& •taid no less than nine days at Sedan. We have the evidence of Mrs. Hewit and of Mrs. Glass as to what happened there, and which evidences contradict each other to the last degree^ though both of them seem to agree in Lady Jane's being in danger of a miscarriage when there. From that time on till they arrived at Paris, it is agreed, that Lady Jane had no. difficulty in performing her journey, nor any threatenings of her approaching delivery. The evidence of the birth divides itself in two classes, Ist,. That evidence arising from the testimony of Sir John and Mrs. Hewit, and from letters wrote by them and by La Marre. 2dly, The testimonies of Doctor Menager and Madame Gamier. This is the whole of the defendant's evidence of his birth>. and with great regret, I must give it as my opinion, That it does not appear to me sufficient for the purpose. If we take- one class of his evidence without the other, it is clearly not sufficient; if we join them together, they mutually contradict and destroy each other. The proof of the forgery of the- four letters from Pierre La Marre, does, in my opinion, destroy any credit due to the testimony of Sir John Steuart and Mrs. Hewit as to him. The plaintiffs have endeavoured, to prove, that Lady Jane knew of the forgery, and that she relied much upon these four letters to prove the birth. But I own, I do not think they have succeeded in this. The second branch of the evidence for the birth consists of the evidence of Doctor Menager and Madame Gamier. I an> unwilling to give way to the idea, that any witness is willingly perjured. I believe the accounts that Doctor Menager gives. of his conversation with La Marre ; I believe that La Marre waa for some years in the Hotel Dieu ; and that he afterwarda practised as a surgeon in a very low sphere, and was a good deal employed in secret services. But then it is clear, that this La Marre cannot be the same one that Sir John Steuart 70 Judgments by the Court of Session. described so particularly. Doctor Menager's friend, La Lord Barjara Marre, was not a Walloon, neither could he be a surgeon of a regiment in the year 1721, because he was then but a mere boy. It was very natural for so obscure a man as the La Marre swore to by Doctor Menager, to boast of his great practice, but it would be drawing too strong consequences from the story which he told about the foreign lady, whom he brought to bed of twins, to fix that foreign lady to be Lady Jane Douglas. This is not the only objection to the applica- tion of this evidence to the present question, for it appears clearly in proof, that if this La Marre did really deliver a foreign lady in the way set forth by Menager, it must have been in the year 1747. For we have it clearly ascertained by the evidence of Mons. Giles, That Doctor Menager was attending the army during the whole of the year 1748. I do indeed rest more upon the evidence of Giles, than upon that of Menager and Madame Garnier. The consequence of which, is, That Menager's oath applies to an earlier period. The defendant sets forth, that he was born upon the 10th July, 1748, in the house of a Madame Le Brune. Of this the defendant has produced no sufficient evidence; he must stand upon the evidence I mentioned before ; and therefore, all these objections to the evidence of Sir John and Mrs. Hewit strike in properly here. The circumstances, situation and business of the Le Brune, in whose house, says the defendant. Lady Jane may have been delivered, are totally different from these condescended on by Sir John and Mrs. Hewit, repeated times, as well upon declaration as upon their oaths. From these things, therefore, I must draw the conclusion. That the defendant has brought no evidence to show, that Lady Jane was delivered in the house of a Le Brune, and by a Pierre La Marre. As to the alibi in Mons. Godefroi's, I think his books are good evidence of this; it is at least moral evidence of it, all that can be expected in such a case, and there lies no proba- bility at all upon the other side. If Sir John and Lady Jane had been now pleading for them- selves against this evidence, they would have had nothing to say, except they could have produced as strong evidence to show, that they were actually at this time in the house of a Madame Le Brune. But when to this evidence by Mons. Godefroi's books, we add the obscurity and concealment, and want of truth in the accounts given of this whole matter by 71 The Douglas Cause, Lopd Barjarg Sir John, Lady Jane and Mrs. Hewit, the evidence is so situated, that upon the side of the defendant's birth, there remains but a bare possibility; whereas, upon the side of the plaintiffs, there is a great weight of probability, and even of moral certainty. Much has been said about the enlevements, though I am far from thinking, that there is any direct evi- dence against Sir John and Lady Jane upon this article. The only proposition established by that part of the proof is, That Mignon and Sanry had in the month of July 1748, and Novem- ber 1749, a child carried off from each of them by foreigners; but then, upon this point, I must join the effect of the plain^tiffs* proof to the defects of the defendant's proof, and then take the cumular amount of the whole. I have spoke so far, and have given my reasons for being against the defendant. But, I own, I have some doubts, as this is a circumstantiate evi- dence against him, whether as he is free of all blame from any irregularity or crimes committed by his parents, whether, therefore, he may not be entitled to lay hold of the mere possibility of the fact as set forth by him ; and more especially as he is now in possession of his state by a verdict. However, to this, I see one objection, that as a child owes his birth to his father, so he must take his state alongst with the accounts given by his parents ; and, in fact, the defendant's whole plea hangs upon the acknowledgment of his parents. There were some other things which as present seemed to be specious upon the side of the defendant; particularly, it was asked, what could be Sir John and Lady Jane's motives for this imposition of children? What their motives might be is impossible to know exactly, without knowing the charac- ters exactly : and whatever were their characters, it is certain, That the argument of the defendant, that upon the supposition of an imposture, it was bringing a needless burden and incon- venience upon them, will not apply. For if the consideration of inconveniences could have had any weight with Lady Jane, it would have prevented their marriage altogether. Lady Jane, in her letters, uses a certain mysterious way of writing alongst with the warmest affection towards these children. For this affection towards children not her own, it is indeed very difficult to account : But we must consider that Lady Jane was a lady of great humanity and charity, which might insensibly lead her to contract an affection for these children, whom she had deprived of their true parents. She was also 72 Lord Alemore. From the Portrait in. the Paiiiament House. Judgments by the Court of Session. thought a woman of high spirit and honour, which might lead Lord Barjaps her to compleat, by every possible means, a scheme, bad as it was, which she had once taken in hand. From all this, then I conclude, that we should sustain the reasons of reduction. Lord AlemorbI — I have formed an opinion conformable to Lord Alemora that now given. I attended with all the care I could to the sentiments of those judges who gave their opinions yesterday upon the other side of the question from me. They made me examine again the grounds of that opinion which I am now to give; and after considering their arguments as much as I could, I found my sentiments rather confirmed than shaken. Though my opinion is clear in this cause, yet I must own it is a difficult cause. This, amongst other things, has been owing to the art and abilities of the defendant's council, who, in attemping to shake the circumstantiate evidence brought against him, took these circumstances one by one, and then drew their conclusion, that this was all that the plaintiffs had proved. Whereas in stating their own proof, what was but a presumption in one page, was in the next positive evidence, and then rose to a demonstration. All this perplexed me a good deal, and I was therefore obliged to return to the general view of the whole proof in this cause. There have been some little points of law attempted to be brought into this cause, though the question before us isi a point of fact entirely, upon which any man may judge. It is a jury-cause : and it is a cause where every body will judge for themselves, and also judge those who judge it. Much has been said upon the defendant's service, and his possession consequent upon it : I think he was rightly served upon the proof as it then stood, and would then have had the same opinion myself. 3y the possession of the estate in conse- quence of that service, the defendant has been enabled to support his defence ; but farther than this, what can that service entitle him to in this cause? It is of no weight as to the evidence, because we are to judge of the point of fact. It cannot have more force than the decreet of an inferior Court under your Lordships' review. It must stand or fall upon its own grounds, and can never be held as a probatio probata. We sit here. * Andrew Pringle of Alemore, appointed, with the title of Lord Alemore, 1769 ; died 1776. 73 The Douglas Cause, Lord Alemore as come in place of the grand jury of error, to consider whether this verdict should be reduced or not. Surely then the thing under reduction must stand or fall according as it appears to U8 now. I give all the force possible to the arguments drawn from the acknowledgment of parents, but this is not what we aU depend upon ; we have all habite and repute, the uncontra- dicted voice of a whole neighbourhood or country, besides the acknowledgment of our parents. But this habite and repute the defendant has not in this cause ; on the contrary it appears, that the doubts of his birth were coeval with the birth itself. It may be asked, whether Lady Schaw, who took the defendant into her family upon the death of Lady Jane, had a firm confi- dence in the truth of the birth, when she desires Mrs. Napier to write to Sir James Steuart in France, and says, that she gives her a clew to unravel this dark story. Let us examine Mrs. Napier's letter to Lady Frances Steuart, and we shall there find her expressing her fears lest a failure in success makes things less clear than they now are. Lord Cathcart in his deposition says, that he had heard the birth often doubted, on account of the mystery and concealment. But even supposing that the defendant had been in possession of a general habit and repute, it is but a presumption, and therefore must yield to proof. And this proof must, in the nature of things, be a proof of all facts and circumstances. And as the one or the other preponderates, so are we bound to give the cause. I will now proceed to state such parts of the proof as to me appear most material. I take up Lady Jane Douglas and Sir John Steuart at Rheims, where I think there appears enough upon the face of their own conduct to infer the conclusion, that it was a scheme of imposture they were going on. At Rheims, which is one of the most populous towns in France, Lady Jane had an opportunity of getting the ablest assistance ; and besides the advantage of several British people there, to whom she daily appeared, and by whom she was much beloved. In this situation Lady Jane passes a whole month at Rheims, but at last, when the critical period must have been very near, sets out for Paris, attended only by Sir John and Mrs. Hewit. For so unseasonable a journey she can give no reason ; she gives only a false pretence, that there was no proper assistance to be had in Rheims. And for the extraordinary step of leaving their maids at Rheims, they give a pretence which is also proved false, that they had not money to carry them to Paris. They arrive 74 Judgments by the Court of Session. at Paris upon the evening of the fourth of July, and put up at Lord Alemore the Hotel Shaloons [Chalons], a respectable inn, to which they had been recommended by Mons. Mallifer at Rheims. Instead of remaining in this inn, or even giving Mons. Godefroi or his wife the least notice of the real intention of their coming to Paris, or enquiring of them for the ablest assistance, they suddenly leave his house and hire lodgings at a Madame Le Bruno's, where Lady Jane is delivered of twins a few days after- wards, in presence of that Madame Le Brune, her daughter, and a Pierre La Marre, who was the accoucheur. Who was this Pierre La Marre? Says Sir John Steuart, he was a Walloon surgeon, whom he had seen at Liege in the year 1721, but who was then in Paris upon an affair " en epineuse." This whole account given by Sir John, the defendant now gives up. But can he give it up without giving up his cause? Sir John had brought Lady Jane to Paris to be thero delivered by the very ablest hands, and yet he entrusts her to the care of a wandering surgeon, whom he had not seen since the year 1721, and who was obliged to be concealed in Paris upon account of a ticklish affair. Did Sir John know where La Marre lived in Paris? No. He is prevented from telling Sir John that, on account of the ticklish affair he came on ; though at the same time he is to be met with on the most public walks in Paris, in the Luxem- burg or Thuileries. Would, then, Sir John have known where to find this accoucheur, if he had wanted him suddenly? If Lady Jane, for instance, had been seized with her pains in the night? No. Sir John declares he would not have known where to find him ; and that if this had happened, he must have called another. When to this we add Mrs. Hewit's account of the matter, that Lady Jane never saw La Marre till the critical time, I can appeal to the understanding and feelings of the heart of man, that this story has no truth in it. It far exceeds probability ; it is even improbable to the last degree ; so much so that it is impossible these things could have happened upon the supposition of a true birth. Lady Jane had staid a whole month at Rheims, though it is now in proof that Paris was the real place of destination. Would it not then have been much more proper to have gone straight to Paris? None of the witnesses at Rheims mention the least of any complaint made by her, that there was no good assistance likely to be got there ; and there is not the least evidence of the story told, both by Lady Jane and Mrs. Hewit, concerning 75 The Douglas Cause, L»rd Alemore the advice given her by an unknown lady, to leave Rheims on account of the unskilfulness of the practitioners. Mrs. Andrieux never gave her any such advice; for it appears that she never took her even to be pregnant. However, if they left Rheims to go to Paris for the best assistance, it was natural and proper for them surely to have taken the very first advice there; at least, it is not to be expected that Sir John would have taken so inferior a man as La Marre was» I still demand the reason of their leaving their maids at Rheims. They give me a reason which I prove to be false. After this, is their deserting Rheims to be accounted for to the mind of man? The delivery is said to have happened in the house of Madame Le Brune, and we have a most pointed description given of her, of the house, and of her family, both by Sir John and Mrs. Hewit. Yet they could give no description of the house so as to find out in what place it lay. In short, this great event of the birth happened in a place where no body could ever either find out or hear of, and which never had any existence ; though it is certain that the greatness of the event must have rivetted it eternally in their minds. I observe that wherever there was a real place, thither they have been effectually traced; but to Le Brune's house they have not been traced, because there was no such person. Upon the ninth day after the birth, according to the account given by them, they change their lodgings, on account of buggs ; and when they appear at Michelle's upon that day they have no child with them at all. Where were their children? They were sent to nurse. What was the reason of this, of sending them both away they knew not where? According to their own account, the eldest was somewhere in the country towards St. Germaine, and they are to go next day from Michelle's in order to bring home this child. Accordingly they do go away, and return again, bringing with them a child in all appearance much older than their child could be, under the care of a nurse who had no milk to give the child, and who had the King's mark upon her as a common thief. Mrs. Hewit has said that during the whole time Lady Jane was at Michelle's she never went abroad ; whereas it is clear that she went in a coach to see the most remarkable squares in Paris, and that she went also to see Versailles, though during all this time she never once went to see her second child, though it was 80 sickly and tender, and though, according to the account Id Judgments by the Court of Session. given of it now by the defendant, it was within half a league of Lord Alomor* Paris. There is one thing very material to be observed in this cause, and that is, that they never wrote to any person of the birth till the 22nd July. Was it natural for them to have concealed so joyful an event for the space of twelve days? Would they not rather have taken the very earliest opportunity of communicating to their friends such joyful intelligence? I come now to examine the evidence brought by the plaintiffs, which to me clearly disproves every part of the accounts given by Lady Jane, Sir John, and Mrs. Hewit. It appears from Mons. Godefroi's books, and he and his wife have also sworn it directly, that Sir John and his company came to his house the 4th July, and continued there till the 13th or 14th. If this be good evidence, what becomes of the birth upon the 10th of that month? According to common rules it is sufficient evi- dence, and therefore the defendant has made his chief attack upon this evidence. But none of your Lordships have said that Mons. Godefroi is not a credible witness; you have only said that he may have been mistaken in trusting too much to the accuracy of his books, I have considered all the objections brought against these books, and I think they have, like fire to gold, brought them out more clear. When, then, we have such evidence, why should we not believe it? Does it not at least remain good till it is contradicted? Where is it con- tradicted? By whom is it contradicted? Only by Sir John Steuart and Mrs. Hewit, whom your Lordships see evidently convicted of telling the most manifold falsehoods. To those who shall tell me that, notwithstanding, they believe the evidence of these two persons, I can say nothing more ; to them it must be a clear cause. On the 18th July they go to Michelle's ; but from the 14th to the 18th where were they? They have not been traced, nor seen nor heard of. In this period there was no birth, and yet when they come to Michelle's they say they had a child at nurse, whom they go for next day, and bring back with them. And having got this child into Michelle's, they immediately write the letters of the 22nd of July, wherein they fix upon the tenth day of the month as the time of the birth. Change of houses must have necessarily taken place to accomplish an imposture. It was not necessary upon the supposition of a true birth. Let nobody say there was not time enough to pick up a child, when you have it proved to you that in that time F 77 The Douglas Cause. Lord Alemore the child of Mignon was actually so picked up. Having thus got possession of a child, could they have returned to the same house where they were formerly? No. This would have directly blown up the scheme of imposture. They must neces- sarily, therefore, have pitched upon some other house to take this ohild to when they should find him ; and the house they went to for that purpose was the house of Michelle. I have said that when they made their appearance with their child at Michelle's, it was a starved infant, upon the breast of a common thief. Was this like the nurse for the child of Lady Jane Douglas? Mrs. Hewit has herself confest that they bespoke no nurse beforehand, and the reason as she says was because Lady Jane was not sure if she would bring forth a living child. Strange, indeed, that Lady Jane, after having put herself to so much expense, and after having travelled so far, should at last grudge an expense which the wife of the meanest mechanic never grudges. How much more like a boy picked up, and a nurse hastily found on the streets, were the child and nurse brought to Michelle's, than to the description of the nurse and child of Lady Jane Douglas. Madame Michelle in an hour's time found out a good nurse for them; so might they themselves if they had consulted any person of their acquaintance in Paris. These things are all inconsistent with a true birth, and probative of a false one. When to all this we add that the child of Mignon was carried oflE from its parents at the critical time, when they pretend to go and bring their child from St. Germaine; when we take a view of the strange indifference towards their younger child for the whole time they were in Paris particularly — what says humanity here? Your Lordships have heard much of the affection of Lady Jane for these children, but this seems to have been taken up at a proper time, after they came to Rheims. There was indeed a good reason why Lady Jane did not go to see him — that was because she had no second boy then existing. How then was this boy purchased? Upon this point the calcu- lation of Saury's enlevement is wonderfully exact. It is brought to have happened either upon Sunday the 16th or Sunday [Saturday?] the 29th of November, 174.9. The descrip- tion of the persons applying for a child upon that occasion is wonderfully like that of Sir John Steuart and his company. They ask for a child of fifteen months old. They refuse several of a lesser age, and at last pitch upon a boy of eighteen months 78 Judgments by the Court of Session. old. All these circumstances tend to one point, and meet Lord Alemopft like so many lines at the point of a circle. Much has been said of the strong affection shown by Lady Jane upon all occasions for these children. But this affection may be accounted for either naturally or artificially. Lady Jane was a woman of much humanity, and when she considered that the infants she had taken away from their real parents must now be dependant upon her, the tenderness she was possessed of might naturally yearn upon such a thought; but however that may have been, it was not to be expected that they would be aiding to their own detection of the crime of imposture by showing upon any occasion a want of affection for their children. But had these children really been their own, they neglected the proper occasion for showing a real fondness for them by removing the suspicions so universally propagated to their own dishonour, and to the evident danger of their children's interests. But what is their conduct here? Instead of applying to the Le Brune or Pierre La Marre to get proof of the birth from them, they make a faint attempt to prove the pregnancy by the declaration of Madame Tewis, and forge letters as coming from the Pierre La Marre. Where did ever a true story need such a continued scene of falsehood to support it? But it was said that Sir John forged these letters •only with a view to cheat the Duke of Douglas. But why cheat the Duke of Douglas or any other man into the belief of a thing which, if true, might have been convincingly proved 1 In short, one certificate from Pierre La Marre and Madame Le Brune would have been a mark of stronger affection to her children than any which Lady Jane has shown. I shall now say a very little as to the proof of the pregnancy: this, as described by Isabel Walker and Mrs. Hewit, must have been observed by every body; but their testimonies are so strongly contradicted by others of more credit that it has no weight with me. Lady Jane seems indeed to have had the appearance of pregnancy ; but when we consider how many ways there are of simulating a pregnancy, and that this was as necessary as the other circumstances mentioned before to carry on the imposture, the appearance of pregnancy deposed to has no weight in this case. Upon the whole, I sincerely compassionate this unfortunate defendant : I hope the same generous lady who has hitherto so well supported him will continue her protection a,nd kindness to him, but he must excuse me if I cannot, in 79 The Douglas Cause. Lord Alemope opposition to my duty to mankind, my country, and myself, find him to be the son of Lady Jane Douglas. I think that he is not her son, and therefore that the service ought to be reduced. . Lord Elloek Lord EliockI — This is not a question of law, but of fact, and therefore I think principles of law have been introduced here somewhat improperly. The defendant in this cause is not well founded in his legal arguments from habite and repute. Habite and repute is public notoriety ; it is the uncontradicted,, uncontroverted voice of a man's whole neighbours, relations, and acquaintances. It is not the bare acknowledgment of the parents that founds this habite and repute, because, when a child is born in any family there are a number of people in the family who must necessarily have many marks of observation. It has been said that the acknowledgment of parents bestows filiation : but it is nature that bestows filiation ; and the acknowledgment of parents can neither bestow it where it is not real, nor their contrary averments take it away where it is real. Much has been said about the pregnancy in this cause,, and if we could believe Mrs. Hewit and Isabel Walker, Lady Jane when at Aix-la-Chapelle was absolutely a monster. Yet it is very remarkable that at this time, as afterwards, she always wore a particular dress calculated as it seems to disguise her shape. Even supposing that Mrs. Hewit and Isabel Walker were credible witnesses, it is a proof of opinion only, and it by no means follows that she was really with child. It was an appearance suddenly assumed, and yet, what is very remarkable, during the whole time of Lady Jane's pretended pregnancy, she never consulted any physician, man-midwife, or surgeon. A thing inconceivable to me if she had really known herself to be with child. In other particulars, too, of her conduct there appear no marks of that care and fear for herself which naturally attends women, and especially one of her delicate constitution in such a condition. She makes the long and difficult journey betwixt Aix-la-Chapelle and Rheims without any apparent hazard or complaint, except once at Sedan, where, as Mrs. Hewit says, she was in danger of being delivered. When they set out from Rheims to Paris, she still continues to travel (though within a few days of her delivery) in the ^ James Veitch of Eliock, appointed, with the title of Lord Eliock, 1761 ;. died 1793. 80 Lord Bliock. From the original Painting by Raeburn, lent by G. D. Veitch, Esq. of Eliock. Judgments by the Court of Session. common voiture after sitting up most of the night before she Lord Elioek sets out, and during the rest of the time of this journey under- goes much more fatigue than one in the situation she is described to have been in could be well expected to bear. This step of their leaving Rheims at so critical a period was of all others the strangest, and which cannot be accounted for upon any other supposition but an imposture, as the reason they gave for it, being that of want of able assistance there, is clearly disproved by numbers of credible witnesses. They left their maids at Rheims, too, under the false pretence of want of money to transport them to Paris. But why did they not send back to Rheims for the maids when they were in Paris so many days before the delivery happened, and when it is clear from their own account that they had got money. Sir John, Mrs. Hewit, and Isabel Walker seem all to have sworn falsely upon this point of the money. This is proved by written evidence upon the side of the plaintiffs, a non memini is no sufficient excuse, for all that they swear here upon being care- fully examined, will appear to be artfully intended as a cor- roborative to that fact of the birth's happening upon the 10th July. The defendant's filiation comes to a narrow point, which is this, whether he was born of the body of Lady Jane Douglas \ipon the 10th July, 1748? This, indeed, is the sole point at issue betwixt the parties. I observe that in the whole accounts ^iven of the alledged birth by all the three persons concerned, they as long as they could keep in the general. They never specify even the town in which the birth was said to have happened; and even when Lady Jane came to be upon her death-bed, and was pressed by Mrs. Greig to get the proof of the birth established for the sake of her children, she gives her not the least satisfaction as to the particulars of the birth, but returns this general answer, " Let them that doubt it prove it." Certainly the Duke of Douglas was very much interested to know the particulars of the birth ; and yet, in the letter which Lady Jane wrote to him from Damartine, and which is falsely •dated from Rheims, they only acquaint him in general of the birth, and do not so much as mention the town in which it happened. On the contrary, from its being dated from Rheims, and from the strain of the whole letter, any body would have thought that ih& delivery had really happened at Rheims. When we examine Lady Jane's pocket book we find the 8i The Douglas Cause. Lord Bllotk following note of the birth, " Archibald and Sholto were bom on the 10th July, 1748." But no mention either of the house or of the town. Mrs. Hewit in her letters from Paris to the maids at Rheims gives no particular place as being the place of the birth ; though, afterwards in the letter to the Duke of Douglas in the year 1765, she pitches upon the house of Michelle; though afterwards she agrees with Sir John to> transfer the scene to Le Brune's. When, Sir John Steuart emitted his declaration, he was particular and pointed con- cerning the house of Le Brune, being the place of the birth; and indeed, in every other particular of his story : And he delivered the whole of that long declaration with firmness, and hpad no defect but only deafness, and upon the last day of hi& examination, when the four forged letters were put into his hand again to consider, he then made several corrections upon that part of his declaration relative to these letters. It i& not possible to think, that Sir John could after the defendant's service (upon which occasion, he was, no doubt, consulted by the defendant's council) forget every one circumstance con- cerning so important an affair as the birth of his sons. And yet, when he was desired by the Hon. Mrs. Napier in the year 1766, to give her a note of the particulars concerning the birth, he then fixes it down to have happened in the house of Madame Michelle, and the very first time that he ever takes it into his head to name the house of Le Brune as the place, was some months after this period, when he found out by the return of Sir James Steuart's letters from Paris, that Madame Michelle- and her family denied that any delivery had happened there : And it was after this time too that he was obliged to name Godefroi's as a place they had been in. Sir John in his letter to the Duchess of Douglas, wherein he narrates the particulars. of the proof which he could bring of the birth, and more particularly concerning the pregnancy at Aix-la-Chapelle ex- pressly mentions Lord Blantyre as being at Aix-la-Chapelle at that time, though it's confessedly clear he was not there. It i& exceedingly remarkable, that though Sir John pretends, that hia want of memory hindered him from particularly describing the street in which Madame Le Brune lived : Yet, he remembers, particularly well the situation of the coffee-houses and taverns which he was in use to frequent. What can be more wonderful added to all this, than the account given by Sir John of his accidental meeting with hia Judgments by the Court of Session. old friend La Marre, who had come up to Paris upon an affair ^^ Ellock en epineuse, this was a strange security indeed, for the success- ful delivery of Lady Jane Douglas. Sir John Steuart has said, That he went first to Paris by himself in the month of June, or in the end of May 1748. And that he stopt at the house of Mons. Godefroi, where he continued several days; but yet this journey of Sir John's is proved to be an absolute falsehood as well as the letters. It is by the defendant himself confessed, that Sir John did not then make a journey to Paris. It appears clearly from proof, that the suspicions of the truth of the birth were very early notified to Lady Jane and Sir John, and that they received these suspicions as being an attack upon their honour, yet there was no attempt made to bring any sort of proof. Why did they not bring such proof? When Madame Le Brune and La Marre were both alive, why did not they get certificates of the birth from them? It is remarkable that the fourth of the forged letters is said to have been brought from La Marre to Sir John by a Mons. Du Bois, a painter. Isabel Walker swears positively, that she saw this letter delivered to Sir John when in Mr. Murray's, St. James Place, London, but that she does not know by whom the said letter was brought. She further says, that Sir John, upon reading it, damned La Marre, and threw the letter into the fire ; but that Lady Jane snatched it up, saying something to this purpose, that the letter should be kept more carefully, because it might be of consequence. For my own part, I am clear that Lady Jane knew of the forgery of these letters as well as Sir John. This appears to me to be clear from the particulars of the conversation which Lady Jane had with Mrs. Menzies upon her intended journey to Douglas Castle; and she expressly mentions to Mrs. Menzies, as a proof of the birth, letters which she had from the doctor - who delivered her, and which letters she said she had then in her pocket. These letters could be no other but the forged letters now in process. I have said that the proposition maintained by the defendant is, that he was born of Lady Jane Douglas in the house of Madame Le Brune, on the 10th July, 1748. What then is the evidence he has brought of this ? It cannot be the four forged letters, neither can he rest upon Sir John's accounts of it, because they are proved to be absolutely false. As to the house of Madame Le Brune, there is no proof 83 The Douglas Cause, Lord nioek brought of there ever having been such a house ; on the con- trary, I think the written evidence produced by the plaintiffs, that the Madame L© Brune specially described by Sir John and Mrs. Hewit, never had any existence. I think she was a non-entity as much as La Marre was. I am not moved with the defendant's having found out a woman of the nam© of Le Brune, and who was a Garde Malade ; as she does not answer, in any one partic^ular, the description by Sir John, of the woman in whose house the birth is pretended to have happened. This proof so far as it goes, is to me convincing and credible, that there was no delivery at all : but the evidence of the alibi in Godefroi's, puts the thing past all doubt. It is clear, positive, direct and credible, both upon the books and the oaths of him and his wife. Whose child the defendant is, is a question not necessary to be here discussed, though it is most probable to me, that he is Mignon's; at least, all the circumstances of the first appear- ance of the child and its nurse at Michelle's, makes it rather more credible to me, than other ways. That Sir John stole Mignon's child, as also the child of Sanry in November 1749, which happened upon the fourth day after they arrived in Paris, when they went upon the false pretence of their bringing home to Rheims their second twin. Since I have mentioned the second child, I must observe, that Doctor Menager has in his oath raised a fabric that cannot stand; because he swears, that La Marre told him, he was bespoke to the foreign Lady some time before hand, and as to Madame Garnier, I no more believe that she was the nurse, than I do that La Marre was the accoucheur. Thus I am clear, that the crime of imposition of children was really committed by Lady Jane and Sir John. I do not chuse to inquire into their motives for this crime ; though I can easily see one that would influence them very much. And that is, to get money from her brother, the Duke, on account of her having children ; and in fact, I see that this scheme was immediately attempted to be put into execution. As to the pregnancy upon which the defendant has founded 80 much, I am clear, that it is disproved by the plaintiffs. And therefore, upon the whole, I am clear of opinion the service falla to be reduced. Lord Stonefleld. After Kay. Judgments by the Court of Session. Friday, loth July, 1766. Lord StonefibldI — The bulk of the proof and memorials in Lord . . _ Stoneflela this cause renders it difficult to form an opinion upon it. I have considered it with all the attention in my power, and have formed my opinion against the defendant. I did not expect to hear in this cause the proceedings in France and the Tournelle process compared to forgery and the blackest crimes. I have no such opinion of the proceedings in France. I think the conduct of the gentleman who managed these proceedings upon the part of the plaintiffs, does honour to himself and his profession. I think that the point of law has been pleaded too high by both sides, I mean as to the question upon whom lies the emus ^prohandi. Such services generally proceed in a very slovenly and loose manner. Hence, says Lord Stair, they are easily reduced. It is therefore sufficient to bring against a service what may preponderate on the part of the plaintiffs. And thus far they are obliged to prove, and no farther. The first point of this cause is the appearance of Lady Jane's pregnancy, which appearance is very strongly proved ; but then this proof is very inconsistent, and contradictory to the notion of a real pregnancy. Pregnancy requires a very particular investigation, and is very difficult to prove. At any rate, the whole of this evidence amounts to the appearance of pregnancy 'only, and if to this we add the way and manner in which Lady Jane performed her long and tedious journey from Aix-la- Ohapelle to Paris, without taking those precautions which would have been necessary upon the supposition of her being so near the point of delivery. All these circumstances denote rather a feigned than a real pregnancy. They go to Paris accordingly, without making known to any of their most intimate acquaint- ance at Rheims, the real object of their journey. They even make use of a false pretence to Mons. Mallifier, and obtain a letter from him, recommending them to Mons. Godefroi, as people that were going to Paris to make purchases. When ^ John Campbell of Stonefield, appomted, with the title of Lord Stonefield, 1763; died 1801. 85 The Douglas Cause. stT* fl Id *^®^ arrive at Paris, they make no enquiries after their country^ men there, which is very natural to expect they would have done; more especially, it was natural for them enquire after Sir William Stewart, whom they had seen at Spaw, and the Chevalier Johnston, who was Mrs. Hewit's cousin -german. When they leave the Hotel Chalons, they repair to the house of a Madame Le Brune, as they say, and on the sixth day after the delivery they remove from this house, and take up their lodgings at Madame Michelle's ; and when they first appear here they have no child with them, but having gone out next day to bring their child in from the country, as they pretended, they return the evening with a half starved child, and a nurse who had no milk, and was branded as a common thief. In the mean time, their second child, though weakly and tender^ is deserted from its birth, never once seen by Lady Jane herself during the space of sixteen months. If we examine the accounts of La Marre, they are so vague and absurd, that they merit no faith. There is a wonderful contrast between Sir John's account of him, and the defendant's account of him now in process. And I cannot think the defendant is at all aided by Doctor Manager's account of La Marre's conversations with him about the delivery of the foreign lady; and as to Madame Gamier, the pretended nurse, she seems to have borrowed the nursing of some other child, and applied it to this. And it is remarkable, upon her oath, that though she swears that she often saw La Marre, yet she cannot describe him in the least degree. As to Godefroi's books, it is my opinion, that when these stand so clearly supported by his oath, they carry conviction that there was no delivery upon 10th July, 1748. As to the enlevements, I shall only observe, that they are very remarkable in time, and suspicious in circumstances. When to all this we add, that they falsely dated all their letters from Rheims when they were truly in Paris, and that the strain of most of these letters tended to make their friends believe, that the delivery had actually happened at Rheims, what conclusion can we draw from all this, but that the story was false 1 Lady Jane and Sir John were early apprized of the suspicions. of a false birth, and yet they never took any steps to prove the truth of it, excepting only one feeble attempt to prove the pregnancy, at its most fallible stage, by the declaration of Madame Tewis. 86 Judgments by the Court of Session. Last of all come the forged letters, which finishes the evidence Lord against the defendant, and compleats the story. Attempts have been made to excuse this forgery, but these attempts are vain, because the question will for ever recur : Why use false- hood to support truth? I must own the strongest proof on the part of the defendant is Lady Jane's private letters ; but then when we consider, that very probably length of time might make her contract an affection for these children, the proof of that affection which appears in these letters cannot much be depended on. I therefore think the reasons of reduction fall to be sustained. Lord PitfourI — It seems to me, that the rules of law are Lord Pitfour likely to be altered, in determining this case, and where it will end nobody knows. The birth-right of the subject is of all other rights the most sacred, and indeed the foundation of all temporal blessings. It is from this that all the joys and the advantages of relation and of consanguinity do flow, and it is upon this that citizens are entitled to the participation of public honours, and the encrease of their own fortune and rank. On all these accounts, therefore, this right of birth, or state of a man is most cautiously guarded by the law. The act of delivery is often transient, and over in a moment. Witnesses are therefore seldom called, and sometimes it is impossible there can be any witnesses at all ; and for this reason the law does not require a proof by witnesses. Nay farther, the more a proof against the possessio status shall encrease, the stronger hold the law gives to the person who claims his filiation. I am far from thinking that there is any kind of evidence brought by the plaintiffs sufficient to remove the defendant from the possession of his state. The acknowledgment of the defendant's parents, and the habite and repute following thereon, was sufficient for him to attain the possession of his state. I don't chuse to dispute points that will not be much contro- verted, but when I speak of the acknowledgment of parents, I mean an acknowledgment of parents supported by the fama consentiens, or the habite and repute of the place of the birth, whether it be at home or in a foreign country. The empire of Great Britain is now extended over a large ^ James Ferguson of Pitfour, appointed, with the title of Lord Pitfour, 1764 ; died 1777. 87 The Douglas Cause, L»pd Pltfour share of the globe. Many thousands of British families have transmigrated to America, the East Indies and elsewhere. A man in America has his children acknowledged there to be his lawful issue, but upon his coming home with his family to Britain, he finds the birth denied hero. The reason of this perhaps may be, that a great euccession might probably devolve upon these children, and that some other people having hopes of the same succession may have designedly raised these suspicions about the birth. And then these same people tell us he must prove his birth and the whole circumstances attending it. Such notions of law would indeed be very extraordinary. When my birth is challenged, and I am in possession by the acknowledgment of my parents, and have the habite and repute of the country wherein I was bom, there must be demonstration before I can be turned out of possession. In the present case the defendant has not only the acknowledgment of his parents, but the universal voice of the country he was bom in, insomuch, that of eighteen British witnesses then residing in France, and acquainted with Lady Jane, never one of them heard the least suspicion of the birth till they returned home to Great Britain. At home indeed false impressions had been carefully made, founded principally upon the age of Lady Jane, and the impro- bability, said from thence to arise, that she could have children. Whereas it is in proof, that she was capable to have children for two years after the defendant's birth. And in particular there is one miscarriage after the year 1748, proved by three or four witnesses. What shall we say to all these things? Were common reports to have any effect upon this cause? — they had no effect upon it. For fourteen years after the birth, even at the time of the service, the plaintiffs themselves were overpowered with conviction, and acknowledge they were satisfied with the force of the evidence. Whatever false rumours may have been raised on purpose to detract from the character of Lady Jane Douglas, when she was unluckily thrown off by her brother ; yet his Majesty, as the common father of his people, was graciously pleased to bestow upon her a pension towards the maintenance of her and her children, which circumstance is surely strong and corro- borative of the general belief of the birth. Lady Schaw's enquiry, by the means of Mrs. Napier, has been founded on against the defendant, in order to redargue the habite and repute which he pleads. But I apprehend that Lady Judgments by the Court of Session. Schaw's enquiry cannot be viewed in this light. It rather Lord Pltfoup appears, that the reason of her making the enquiries was, to get some proper evidence to oppose to any attempts of the plaintiffs in an after-time, and by no means to satisfy herself. Nothing can interrupt the possessio status till the action is actually brought against the person claiming upon that posses- sion ; and if we do not adhere to this salutary rule, in the case now before us, we shall encroach on the birth-right of all man- kind. And therefore it has been improperly enough said, that points of law are not to be treated of here. The whole doctrine of law concerning the possessio status, and habite and repute, comes properly in here ; these doctrines of law being founded upon common sense and the necessary security of the subject. I come now to speak of the proof which the defendant has brought of his birth. And first, as to the pregnancy, this must have great influence in this cause ; the witnesses who depose to it are very many in number, people of respectable characters, not acquainted with one another, and who had no interest whatever to give a false account. Had this pregnancy been like that of Lady Kinnaird, which was shewn upon every occasion with the grossest affectation, we might have had reason to doubt of it : but so far was Lady Jane from publishing her pregnancy, that she seemed bashful and shy when the curiosity of her domestics and friends prompted them to satisfy themselves how the matter stood as to her pregnancy. Isabel Walker, whose testimony I do firmly believe, solemnly swears, that " she felt the children move in Lady Jane's belly." Madame Tewis's declaration, I think too, good evidence of the same fact ; as I do likewise that of Effie Caw. Because these declara- tions on account of Mrs. Tewis and Effie Caw being dead before they could be put upon oath, are the best evidence possible. In short, there is no single testimony upon this point of the pregnancy, but what is corroborated by others. And when to aD this we add Mr. Andrew Stuart's own confession, that there were all the proofs in the world of her pregnancy, why should we doubt so much evidence? ] cannot understand the argument, that the proof of pregnancy is not sufficient to infer the consequence of the birth. I think quite otherwise. If pregnant, she must have been delivered; and therefore there is a high probability at least that the whole account of the delivery, given by the parties, is true. It is a talis qualis proof, the best proof that the 89 The Douglas Cause. i^rd Pltfoup nature of the thing will admit of, after so long a lapse of time. If the proof had been brought sooner it would have most likely been much stronger on the side of the defendant. By the common course of things, as well as by accident, he must have been at great loss in bringing a proof so late. Many of his witnesses have died, and others of them have changed the places of their abode, and cannot now be discovered. Why, then, was not this action brought sooner? What excuse for this? Why did they keep it in petto? Why did they keep the challenge so long in their pockets? Yet such are the facts, and therefore the law makes a less proof necessary now than it would have exacted before from the defendant. The whole story concludes, not with the idea of imposture, but remarkably well with that of a real birth. Much has been said about their going in a secret manner to Paris without letting their friends know ; tiiough it is clearly in proof that the Chevalier Douglas gave it as his advice to Lady Jane to go to Paris to be delivered. As we have had so much evidence of the pregnancy, which is a gradual advancing thing, why should we insist for such points evidence as to the act of delivery ; to which there cannot be so much evidence expected as i(0 pregnancy; because this by the common course of nature may be gradually traced, and so liable to the observation of many witnesses every day, whereas that is a single act, and often over in a moment. Upon these principles, the law makes the presumption of a birth rise gradually, according to the advancement of the pregnancy. Much has been said about Le Brune's house, and particularly about the extraordinary account of their having left it so soon after the birth. Whereas, we see in proof, that the real motive of leaving it so soon was, because they were pestered with bugs. And accordingly, when they come to Madame Michelle's, we find them anxiously enquiring of her if her house was free of that vermin. And afterwards we find them complaining of their being troubled with them there too. But, say the plaintiffs. Sir John is charged with being the contriver, and Mrs. Hewit with being an accomplice in this fraud, and therefore you are not to believe any account they give. But if this charge brought against Mrs. Hewit (and Isabel Walker too) of being accomplices in this alledged fraud, should be sufficient to destroy their credibility, then the plaintiffs might have had a clear cause of it, and used the same freedom with the defendant's other witnesses, and so set them aside altogether. 90 Judgments by the Court of Session. In corroboration of the truth of the testimony emitted by Lord Sir John and Mrs. Hewit, and of the uniform account given by Lady Jane, That these children were truly hers, you have the «olemn death-bed declarations of all the three. In the present age, infidelity and scepticism are accounted fashionable; but I will aver, that this is more owing to pride and affectation than to any conviction possible to the mind of man, That there is no future state of rewards and punishments ; and I do believe that there are but a very few who are so execrably worthless, and insensibly hardened, as to make a joke of eternity. Some malefactors there may have been, who, after having been fully convicted of crimes, may have gone to death publicly denying them. But there was no conviction, nor the least danger of conviction to the parties in the case now before us; and when to this we add, that their characters are proved to have been not «.t all of the infidel cast; what conclusion can we possibly draw, but that they died asserting the truth? And when to this we still add the great distress and affliction which both Lady Jane ^nd Sir John were almost always under, and at the same time see them upon every occasion expressing the most tender solici- tude for the welfare of their children, whom they were then scarce able to maintain : all this behaviour speaks out strongly, that they were indeed their own children. In opposition to this, it has been said, that Lady Jane deserted her youngest child from its birth, and that she never went once to see it during the long time she remained in Paris, and at Dammartine. But in answer to this, I observe, that the plaintiffs are not entitled to plead so high upon this point; I will presume that she did see her child, although it cannot be now proved post tantum temporis. Another argument has been used by the plaintiffs, viz., That she had no nurse bespoke; to which I answer. That La Marre himself bespoke a nurse, as is clear from the testimony of Madame Garnier, who was herself the nurse of Sholto. It has been said by the plaintiffs. That the La Marre now founded on by the defendant is a new La Marre, and that he cannot be the La Marre, whom Sir John gives an account of. It is curious to observe the conduct of the plaintiffs upon this great point of their cause. At first, in their condescendence, they denied point blank, that there was any person of that name who was a surgeon or accoucheur in Paris in the year 1 748. And now that an accoucheur of that name has really been found out, 91 The Douglas Cause. L«pd Pltfour the plaintiflfe take hold of the particular description given by Sir John Steuart of the La Marre, whom he condescended on a» being the accoucheur; and because this La Marre does not in every particular agree to Sir John's description, the plaintiffs infer the strong conclusion, that it is impossible that the La Marre now found out could have been the accoucheur to Lady Jane Douglas. The plaintiffs have particularly laid hold of two circumstances in« Sir John's account of La Marre ; one of which is, that he was a Walloon; and the other, that La Marre had been introduced to Sir John at Li^ge in the year 1721, by one Colonel Fountain. As to the first of these circumstances in Sir John's description of La Marre, the plaintiffs are clearly under a mistake; for as the La Marre founded on by the defendant, was bom at Montreuil sur le Mer, he might readily enough, in respect of his country, be termed a Walloon, or at least Sir John might very naturally take him for a Walloon. And as to the other circumstance about Sir John's having seen him at Li^ge in the year 1721 ; this is evidently an error in point of time only, which it is not at all surprising Sir John should have been guilty of, if we consider the great variety of questions put to him, and his age and infirmities at the time he gave his declaration. It has been argued by the plaintiffs. That the story told by Madame Gamier of the manner of that child's being brought to her house, cannot apply to the child of Lady Jane Douglas : in so far as Madame Gamier deposes. That the child which Pierre La Marre delivered to her to be nursed, was brought to her house at night with flambeaux, or torch-light, from which, say the plaintiffs, it is clear, that this could not have happened in the middle of summer, as there would have been no occasion for flambeaux. But if we consider the length, narrowness, and dirtiness of many of the lanes and streets in Paris and its environs; and also that it is not so long light there as it is here at that season of the year, we shall find the circumstance of the child's being brought by flambeaux not to be inconsistent with the notion of the child's having been carried to the haute borney late in a summer night : and when to all this we add the precise and pointed conversation which Pierre La Marre had with Dr. Menager upon the subject of his (La Marre's) having delivered a foreign lady, of an advanced age, oi twins, and that these twins would be heirs to a great estate in their own 92 Judgments by the Court of Session. country, and that it was a great affair for him ; and when Lord Pitfour we consider also Madame Guinett's evidence, who positively swears. That she frequently saw Pierre La Marre visiting the child when it was under Madame Garnier's care, is it possible to figure a stronger circumstantiate evidence in any case what- ever than this evidence brought by the defendant to support the truth of his birth? I am clear it is as strong an evidence as we can at so great a distance of time possibly expect, and therefore give my voice for assoilzing the defendant. Lord GardbnstonbI — This is a very extraordinary and a very g^'^-ngt^,^ singular cause ; Duke Hamilton has nothing to gain, and the defendant has every thing to lose. My opinion is for the defendant ; I will deliver it with brevity and precision : and as the grounds of it are few and simple, I will not take up a large field, but only state some points on both sides, which have led me to form this opinion. But first, I will beg leave to state some preliminary observations, which appear to me to be of great importance. And, first, I can by no means agree with those of your Lordships, who have given your opinion. That the law has nothing to do in the present case : it appears quite contrary to me ; I look for light to the law, and more particularly to that great branch of it contained in the title de Probationibus, in which there are principles enough to determine us in our judgment of evidence in every possible case. Secondly, I do own it as a principle of law clear to me. That wherever a person is acknowledged and entertained by his reputed parents from infancy to manhood, he cannot be turned out of the possession of his state without a clear, distinct, and demonstrative evidence. By these rules the present case falls to be determined, though I confess I will consider the question as if it had come first before ourselves, and without any regard to the verdict formerly pronounced for the defendant. In so far therefore I am a convert to an opinion delivered yesterday; but upon these first principles which I have laid down the proof against a defendant in such a question, must appear without any uncertainty, and there must be no room left for the calculation of chances. This appears evidently to me to be well founded in humanity, ^Francis Garden of Gardenstone, appointed, with the title of Lord Gardenstone, 1764; died 1793. 93 The Douglas Cause. KS.— «« expediency, and law. As to the first of these, the humanity, varaonscone ^ •' „i--%e-i,.-t.r j it is 80 obviously on the side of this defendant, that 1 need only but mention it: The expediency is also so manifest, that it would be needless to insist on it — The security of families and the peace of society speak it out abundantly plain. And as to the law: the law of this country, and of every other country in the world, does uniformly require in all proofs of the kind before' us,, the most clear and convincing evidence against the rights of filiation. A second proposition I will lay down without arguing for it, which is, that where such a question as this is brought so late, the evidence of such witnesses as may be now dead, will, when reported upon oath by others, have the same strength as if these others had been alive now, and had been legally examined themselves. My third general observation is. That I see no improper thing, nor ill conduct on the part of the defendant in this cause : whereas on the part of the plaintiffs, I see most improper and most illegal conduct. I see the Tournelle process, the Monitoire, and all their miserable effects. I do not blame Mr. Stuart for his conduct in these matters : he is a man of honour and of character, and was instructed to carry on these French proceedings by the rest of the tutors of the noble plaintiffs : but however that be, I will define the Tournelle process to be what I really think it was, " an indirect practice to prejudice the evidence, and to deprive the defendant of a fair trial." I pretend not to be the spirit of prophecy; but it is long since I have said that the plaintiffs will find the Tournelle process to hang about their necks like a mill- stone, for in vain (as was said in another place) are judges wise and upright, if the channels of justice shall by such means as this be corrupted. As to their Monitoire, it was such a one as was never seen but in the case of Calas, which proved fatal to an innocent family, and is a reproach to the annals of justice. I come now to say a few things upon the evidence produced in this cause : and, 1st, I observe, that taking the whole of the defendant's evidence by itself, it seems to me impossible that there could be a stronger proof brought of the birth aftor so long a time, and upon so unexpected a challenge. To me it is just as credible that a woman of fifty years of age, of ability (as is clearly proved here) should have children, as that a woman of twenty-five years should have them. 94 Judgments by the Court of Session. I cannot doubt that pregnancy is a thing capable of proof: Lord it is held to be so in the law of Scotland, and in the civil law likewise. And if it is capable of proof, it is surely proved in the case before us. Pregnancy may be forgot, or it may be remembered as it happens ; but what proof of it can you expect 1 is it by the testimony of friends, domestioks and acquaintances, or by that of strangers? It is by the first, surely; because the law expects the best causes of knowledge from those who in the character of domesticks, attendants and friends, are most frequently about the person, and have the best opportunities to know. Accordingly, in the cause before us, you have clear and pointed evidence, by such persons, that Lady Jane Douglas was really pregnant. Her pregnancy, then, so clearly ascer- tained, is truly a proof of the delivery; because if she was pregnant, she must have been delivered. This therefore brings me to mention, that besides the proof I have noticed, there is a positive proof of the birth of the defendant, by two witnesses. I mean. Sir John Steuart and Mrs. Hewit, both of whom were called as witnesses, not by the defendant, but by the plaintiffs. When to this is added the strong circumstances in the behaviour and conduct of Sir John and Lady Jane towards the defendant, what doubt can remain that he is really their son? Amongst a number of other circimistances, I shall mention these following. Their private correspondence strikes me strongly, and it is not credible to me that all the scene therein exhibited could be dissimulation. It is the same thing in my view as if two alledged confederates in a crime had been overheard talking together in the very next room, and had we so overheard them, breathing such strains of truth, sincerity, and affection towards their sons, would we not believe it? But even supposing we should disbelieve this, oould we carry the supposition so far as to believe that Lady Jane would absolutely break her heart, and die for love and affection to a child not really her own? And yet that grief for the death of her son Sholto was the more immediate cause of her death, is proved by the testimony of respectable witnesses. But still more, when I see her in the pangs of death, pouring out her blessings on her then h*"" 'yn, the defendant, can humanity allow me to believe tl this was falsehood and hypocrisy? Can we believe that > an she was praying with her last breath for the defendant, as her son, that she was then, 95 The Douglas Cause, Lord when just going to appear before her Maker, taking Him witness to solemn falsehood? Thus much for the proof on the side of the defendant. — I now oome shortly to touch upon that brought by the plaintifiEs. Theirs is a circumstantiate evidence * wholly, and many of the circumstances are of no weight at all : I am sensible, however, that when men have once formed an opinion of guilt, they are often apt to look at every thing as through a jaundiced eye, which makes every^ thing of the same colour with itself. I will however consider some of the most material parts of this large circumstantiate evidence upon the side of the plaintiffs. And 1st, I mention Godefroi's books, with the oaths of him and his wife. First, as to his books, I declare from the bottom of my heart, that they have no credit with me. When I consider the nature of a tavern reckoning or bill, extracted at the distance of fifteen years, I can have no notion of giving mighty credit to this sort of written evidence. We have all heard of a person in London, known by the name of Mother Douglas: 2 she, it seems, kept her books likewise, upon which her representatives are now prosecuting some respectable personages in this country. It is not to be credited that such personages ever frequented her house. But though they had so frequented her house, they would have surely paid off their bills, and will not now be condemned upon the written evidence of tavern books. I must observe that Michelle's books were found to be erroneous, and therefore left off altogether by the plaintiffs, who then, for the first time, resorted to those of Godefroi ; whereas to me both these grounds appear equally tenable, and you may lay hold either of the one or other, as you please. There is one reason indeed why Michelle's books appear more credible than Godefroi's, which is, that where people go only to eat for a day or two, as at Godefroi's, there the date is of no sort of moment ; but where they go to lodge for a time, as was the case in Michelle's, there the date is of moment. 2 Mother Jane Douglas, whose portrait appears in Hogarth's "March to Finchley," and some of his other pictures. She kept a bagnio at the Piazza, Covent Garden, which was very richly furnished, and where she died 10th June, 1761. She is mentioned once by Horace Walpole, and is called "the venerable matron" in Charles Johnson's " Chrysal," and is described in Sam Foote's " The Mirror," where her religious pretensions are ridiculed. [Information kindly supplied by Mr. Horace Bleackley.] Her representatives apparently tried to blackmail her former clientele. 96 Judgments by the Court of Session. I observe, thirdly, that these witnesses are tainted by the Lord Tournelle process : Madame Godefroi's oath is utterly incredible, because she persisted in saying, when she was first enquired out, That she could not recollect any one thing about Sir John Steuart and his company. When after this I see her come and join in telling veiy many material circumstances along with her husband, can I think her a credible witness? Farther, Madame Godefroi has sworn. That when she applies a blank article in her book of expence to her book for the Inspecteur of Police, it is conjecture merely, upon her part. This assertion of his wife's invalidates Mons. Godefroi's positive assertion, which he has expressly swore to in very different terms. Fourthly, It is in this single instance only that Mons. Godefroi can take upon him to fill up any blank articles in his books, though there are some of these entered only a year or two ago. For all these reasons, I think there is not the least proof of the alibi in the house of Godefroi. I now come to mention some other circumstances, such as the concealment and mystery which was alledged to attend the whole of the conduct of Sir John and Lady Jane. It was here used as an argument to infer fraud, that during the time of her pregnancy, Lady Jane almost always wore a particular dress, and never went without a hoop. But it is inconceivable to me how this circumstance can ever be founded upon to prove an imposture. To me it appears directly contrary; for surely if her pregnancy had been entirely affected, instead of con- cealing, she would have taken every opportunity of showing it. Another circumstance pleaded by the plaintiffs, was. That Lady Jane never called for the advice of any physician, surgeon, or accoucheur during the whole time of her pregnancy. As to which, I beg leave to observe, that however odd the plaintiffs may think this, yet Scots ladies will not surely think so. They are generally pretty easy, and free of apprehensions upon this point, and can do without a physician at their bed-side every hour of the day. Much stress has been laid upon the circumstance of their journey to Paris, which has been represented as the object of their secret destination from first to last; whereas it is in proof, that Lady Jane was really advised by the Chevalier Douglas to go to Paris to be there delivered. The circumstance of their employing so obscure a man as 97 The Douglas Cause. GwSe sto e ^* Marre, after they had said that they went to Paris for the best assistance, has been also laid hold of by the plaintiffs ; whereas Sir John expressly swears, That he desired La Marre to have other assistance ready at hand, which La Marre would have got, had he not easily accomplished the delivery himself. Much has been said also of the circumstance of the younger child's being sent into the country, and about Lady Jane's never having seen him there. To which it is answered, That the child being sickly and tender, did upon that account want fresh air; and that it is not in proof that Lady Jane never went to see him. I now come to mention some other circumstances ; the first of which is, That of their leaving their maid-servants at Rheims, and to which I do own I see no reasonable or satisfactory answer. As to the forgery of the letters, I see no evidence of a forgery, in so far as Sir John said they were copies of letters. But even supposing them to be forged, I cannot carry it so far as to deprive the defendant of his state upon that account merely. Had the parties been all now alive, they might have been able to account for many circumstances in their conduct, which are seemingly suspicious to us, in the same manner as the circum- stance formerly mentioned of their having dropt their man- servant at Li^ge has been accounted for. And when to this we add the strange and singular character of Sir John Steuart, the principal actor, we need wonder the less at many of these circumstances. I shall now conclude with observing, that if the plaintiffs prevail in this suit, the defendant's case will indeed be singularly hard : For in the first place he has never had a fair trial for his birth-right. I do not mean here, but in France. And, secondly, of all the numerous cases of partus suppositio, there is none similar to this ; none of those children were possest of their filiation ; in none of those cases was there the same strong proof of pregnancy, nor such direct and circumstantiate evidence of the actual delivery. Lord Kennet. From the Portrait by Martin in the Parliament House. Judgments by the Court of Session. Saturday, nth July, 1766. Lord KbnnetI — This cause being of so great importance and ^^^^ Kennet expectation, it is highly reasonable that each of your Lord- ships should give his opinion upon it. My plan is to deliver my opinion upon the principal points of the cause, most of which have been already stated with great propriety by those of your Lordships that have spoke before me. I do not think myself capable to persuade any of your Lordships to be of my opinion. And though I thought I could do so, yet I would be very far from desiring it. My opinion is then for sustaining the reasons of reduction. The first question before us is. Upon whom lies the onus prohandi? Upon which I observe, that when a person claima, he must prove his propinquity, or at least he must have the acknowledgment of parents, and a habite and repute general and uncontradicted. Such a proof as this, however, cannot be called a prohatio prohata. Neither is the acknowledgment of parents a presumption juris et de jure: for then no proof at all would have been allowed in this cause. The conse- quence of this is. That the onus prohandi lies upon the plaintiffs, who must therefore bring a clear, convincing, and demonstrative evidence to support their challenge of the birth. When I lay down these principles, I do not, as was hinted yesterday, shake the security of the subject's birth-right, since it ia clear. That every person must remain in the possession of his state upon the legal presumptions for filiation, till it be clearly and convincingly proved, that such person is not entitled to that filiation. An objection has been moved for the defendant, on account of the lateness of bringing the present action against him; but upon a little consideration, this objection flies off, as it is clear, that the plaintiffs had no right to bring such an action till after the death of the Duke of Douglas. And as to the distance of time so much complained of by the defendant, it ^Robert Bruce of Kennet, appointed, with the title of Lord Kennet, 1764 ; died 1785. 99 The Douglas Cause, Lord Kennet is really as great a loss to the plaintiffs as to him ; and indeed I rather think it had been happy for this defendant if the action had been still later ; and that Sir John and Mrs. Hewit had both of them been dead before they could have been examined in the cause. Of all evidence to prove a crime, such as that of the suppositio partus, the circumstantiate evidence is the most convincing; and what is more, the least suspicious. In judging of such a proof, the whole circumstances must be taken together. Some by themselves may appear trivial, which, when joined to others, appear exceedingly material. I considered the plaintiffs' proof even with a prejudice for the defendant, and I examined his proof to find out circumstances to make me believe that he was the son of Lady Jane; which I sincerely declare I much wished to be the case. But motives of compassion cannot now have weight with me ; for when I sit as a judge to determine a case of property like this, I must go on in the straight road of evidence, without turning either to the right hand or to the left. The pregnancy of Lady Jane Douglas is in course the first object of proof in this cause, and I must acknowledge, that I think there is a clear proof of the appearances of pregnancy ; but then I consider, that such appearances are often very deceitful, and that they cannot be well distinguished from an affected pregnancy. Of this we have many instances in that famous title of the Roman pandects, de ventre inspiciendo. The proof of pregnancy brought for the defendant, is a proof of opinion by the witnesses merely; who, I dare say, have deposed according to their own belief ; tliough I think their depositions not sufficient to establish the truth, that Lady Jane was really pregnant. It deserves attention upon what different grounds the different witnesses formed their opinion of the pregnancy; and more particularly Sir William Stewart and his lady say, they thought Lady Jane pregnant, because she was pale of complexion and had frequent vomitings. As to the paleness of her complexion, that appears to have been natural to her ; and as to the vomitings, it is in proof, by the oath of Isabel Walker, that she had been often troubled with these even before she left Scotland. Mrs. Hewit and Isabel Walker are, no doubt, the capital witnesses for the defendant upon this point of the pregnancy. But then, their testimonies appear to me highly suspicious in many respects, and in none xoo Judgments by the Court of Session. more than in what they have said as to the prodigious bulk Lord Kennet of Lady Jane even before she left Aix-la-Chapelle. For if the bulk had been as both these witnesses represent, it is incredible to suppose, that so many witnesses, to whom Lady Jane daily appeared throughout her journey, should never have observed it. Mrs. Hewit deposes, That when they were at Rheims, Lady Jane was so very unwieldy, that she never went abroad but once : Whereas the Abbe Hibert walked with her often in the most public places and walks about Rheims. At the same time, as it is certain, if Lady Jane had been pregnant, she must have been delivered ; I thought if I could find out in her a real bulk when seen without her cloaths, it would go far to instruct the defendant's plea. With this view, therefore, I carefully considered the evidence of Madame Tewis, Mrs. Hewit, Isabel Walker and Mrs. Hepburn of Keith. As to Madame Tewis, she appears to me to have declared things which could not possibly exist at that time, at so fallible a stage of her pregnancy. But it is my opinion, that having been drawn in to express herself too strongly upon this point to Sir George Colquhoun and Colonel Douglas, she was thereby obliged to repeat the same afterwards in her judicial declaration. The amount of Mrs. Hepburn's oath, is, that upon coming one day into Lady Jane's bed-room when she was dressing, she observed her breasts to be of so large a size, that she had no doubt of her being with child. But these marks are still too fallacious, and therefore I was willing to take in here the declaration of Effie Caw ; but then this declaration of hers amounts to an opinion only, and that opinion formed without any opportunity to know. Isabel Walker and Mrs. Hewit have gone much farther upon the side of the defendant, but then they have swore to many things which are not true. Isabel Walker, particularly, is incredible when she swears as to the height of the beds, and that upon that account, Lady Jane was obliged to use a stool to get into them. This witness has sworn, that Lady Jane employed no mantuamaker at Rheims. And she has deposed very particularly, but very incredibly, as to her conversations with Mrs. Andrieux there. She is also no less incredible, aa to what she relates of a conversation which she says, she over-heard betwixt Lady Jane Douglas and the late Lord Prestongrange upon the subject of the birth of the children. lOZ The Douglas Cause. LordKenn«t Perhaps, my lord might say to Lady Jane, that she was not bound to prove the birth, but surely his lordship would never advise her against providing herself witli proofs to be used afterwards, if there should be occasion for them. Lady Jane and Sir John gave many different pretences for their leaving Aix-la-Chapelle. There is one circumstance particularly that strikes me strongly. I see that Mrs. Tewis. offered to procure for them the castle of the Count de Salm, where Lady Jane might have had every thing convenient for her approaching delivery ; and that Mrs. Tewis did accordingly write to her friend the Great Bailiff [Grand Bailli] of the Count, desiring accommodation for Sir John and Lady Jane in the castle of Bedbur. It might have been expected, that Sir John and Lady Jane, as they had agreed to petition the Count de Salm for this favour, would have waited for his answer ; but instead of that, they suddenly leave Aix-la-Chapelle under pretence of the imminent hazard of an approaching delivery, and set out for Rheims, where, nevertheless, they continue to remain for the space of a month. How ill then does this agree with their pretence for not staying but a few days at Aix-la-Chapelle,. when they might have got their answer from the Count d& Salm. After having remained so long at Rheims, they suddenly set off for Paris, and leave their maids behind them at Rheims,, at a time when of all others they had the most need for their attendance. For this strange conduct, in their not taking the maids alongst with them, the want of money was given as a pretence which is clearly proved to be false, for Sir John had at that time a credit for no less a sum than 2000 livres. I now come to the proof of the delivery. The defendant was not bound to prove the delivery, and it lies upon the plaintiffs to prove the falsehood of it. But then, if the only three ■ persons concerned shall be found to give inconsistent and false accounts of this matter, this must go a great length to dis- prove the birth. I have heard it said, that the defendant has proved his birth by the direct testimony of two witnesses. Sir John Steuart and Mrs. Hewit. I own, I cannot understand this argument. If it be a good one, there is a ready way laid to» accomplish an imposture at once: but supposing, that not only two, but twenty witnesses had swore directly to the birth ; yet still, the plaintiffs might have proved the falsehood of it by contrary evidence. 102 Judgments by the Court of Session. I have mentioned the accounts given by the parties them- Lord Kennet selves : with respect to Lady Jane, we see her always speaking in general ; the only time she came to particulars, was in a conversation with the Countess of Stair, as it stands deposed to by her daughter the Hon. Mrs. Primrose. Lady Jane well knew, that there was plenty of good assistance to be had at Rheims. And therefore, to excuse the strange step of her going to Paris, she tells the Countess of Stair that strange story about the advice given her by an unknown lady to leave Rheims directly. As the professed intention of their going to Paris, was to have Lady Jane delivered by the ablest accoucheur there; and as Lady Stair observed to her, that she ought to have had some of the British people then at Paris witnesses to the delivery, she has an excuse ready at hand, which is, that slie was delivered within half an hour or within an hour after their arrival in Paris. Sir John Steuart in his account of the matter solemnly says, that he went previously to Paris in the month of May or June preceding the birth ; and yet, this is clearly proved to be a falsehood. And as this is the case, can we presume any part of the accounts given by Sir John to be true? It is acknow- ledged by Mrs. Hewit, that there was no nurse bespoke, and she gives this strange and unaccountable reason for it, that Lady Jane did not know if she would be brought to bed of a living child. Sir John Steuart says, that he would not have known where to have found out La Marre, if he had been wanted suddenly ; and that if this had been the case, he must have called another. He afterwards attempts to make this somewhat better, but in reality makes it worse, because he deposes, that when they came back from Paris to Rheims, in the year 1748, he did not even then know how to find out La Marre. Mrs. Hewit has said that Lady Jane had no sick nurse, and yet Isabel Walker says Mrs. Hewit wrote her they had a sick nurse. Again, it is said that the Pierre La Marre never came to see Lady Jane but once. This is extraordinary indeed; and the more particularly so, as, according to their own accounts, he had the care of the second boy, who was a weakly tender infant. The defendant had fixed Madame Le Brune's, as the place of the delivery. When Mrs. Napier pushed Sir John Steuart to give Lady 103 The Douglas Cause. Lord Kennet Schaw an account of the particulars of the birth, he then fixes the delivery to have happened in the house of Madame Michelle ; and at this time too, Mrs. Hewit writes her letter to the Duke of Douglas, fixing upon the same house of Michelle as being the place, though she has since sworn, repeated times, that she could never remember French names. Mrs. Hewit has expressly deposed, that the whole time they were at Michelle's, Lady Jane never went abroad, either to Versailles or to any other place, whereas you^have it in proof that she made two separate journeys while staying at Michelle's ; and in particular, Madame Blainville swears expressly, that she went in the very coach with Lady Jane to see the palace and the gardens at Versailles. It must be held to be very extra- ordinary, that she was able to go to Versailles, and to walk about there, and yet that she never went to see the second boy, who was at nurse hard by her. It has been said, that there is no proof that Lady Jane never went to see this child. But this is a mistake ; for Mrs. Hewit expressly deposes that Lady Jane never went to see Sholto at all, " because she was weak and sickly the whole time they were at Michelle's." When they come first to Michelle's, let us observe their conduct here. They talk as if Lady Jane had been lately delivered in the country, and they set out for the country under the pretence of bringing their child from some place towards St, Germaine. And when they return with their child next day, the people at Michelle's are surprised with its appearance; and some of the witnesses, particularly Madame Blainville, give it as their opinion, that the child brought there must have been much older than ten days. They have told us that this second boy was put to nurse under the care of La Marre : and yet, by their own account, they know not where to find either La Marre, the child, or its nursa It is extremely odd that nobody ever saw this second child, till he suddenly made his appearance at Rheims. Why not desire the Chevalier Johnston, then at Paris, to enquire after the child who was so sickly and tender? Sir John declares that he knows nothing of the place where they resided in Paris in 1749, and wherein they were three days before seeing their second child. For this a bad memory is no sufficient excuse. I had not the honour to sit alongst with your Lordships when Sir John gave his declaration, but I have heard that he was allowed to retract, but that he did not, 104 Judgments by the Court of Session. upon any part of the accounts given by him. However this Lord Kennet be, there is a remarkable instance of Sir John's attention and distinctness in his letter to Mons. Mallifer, at Rheims. It appears clearly in proof, that both Sir John and Lady Jane were very early acquainted with the suspicions of the birth, yet they took no care to remove these. They said that their honour was called in question : but tliis was only a pretence ; for why not send to Paris for proofs of the delivery, when it is clear they sent to Aix-la-Chapelle for proofs of the pregnancy? Or why attempt a proof of the pregnancy at itiS most fallible stage, when they might have actually produced proofs of the delivery itself? or at least they might have kept some of the many genuine letters which it is said they received from La Marre. Or, at least, why did Sir John forge letters as coming from La Marre? Surely, if he could have got real ones, he would have never fabricated false ones. The Madame Le Brune, in whose house the delivery is now said to have happened, is not to be found in any of the books either of the police or the capitation ; the only Madame Le Brune, who it is now said by the defendant may have been the person, is a garde malade, and so does not answer the description so pointedly given by Sir John ; and indeed it is not credible that Sir John Steuart, whose character was never that of a miser, should, when he had money in his pocket, have allowed Lady Jane Douglas to have been delivered in so wretched a place. I do not think it however conclusive against the defendant, that La Marre cannot now be found out ; it was his strongest argument, that he was not now obliged to produce him; he should have therefore rested here, for he is not in the least assisted by this proof of a Louis Pier de La Marre. Sir John's description of his La Marre must make it clear beyond controversy, that this Louis La Marre cannot be the same man. When we consider the conversations which Dr. Menager had with Giles and Moureau, we shall be convinced that Giles's testimony is more credible than Menager's; the manner of this La Marre's signing his name is proved, by his contract of marriage, not at all to coincide with that of his subscription of the four pretended letters. If La Marre did not deliver Lady Jane, then there is no weight due to the testimony of Madame Gamier ; but, besides this, when we consider the difference in the accounts given by 105 The Douglas Cause. Lord Kennet Sir John, and those of Madame Gamier, we cannot possibly make them tally together in any one particular. Madame Garnier did not know whose child it was she was nursing; only she says she was informed it was to be a rich child in its own country. This then cannot apply to the second child of Lady Jane Douglas, and if we examine the whole of Madame Garnier's accounts as to the time of the child's coming and going away fronj her, we shall find, that in point of time, her accounts can noways suit those given by Sir John and Mrs. Hew it of the second boy. I have hitherto rested my opinion upon the conduct of the parties concerned ; but I own I cannot lay out of my view the proof of the alibi in the house of Godefroi. Godefroi and his wife do not depose altogether from memory, and their books are further supported by Sir John's own admission, that he and his company did actually come there upon the 4th July. The more these books have been canvassed, the more exact do they appear to me. And when Sir John has himself admitted, that he staid there three days, it is surely most probable, that there would be an account opened for them in these books. Great cries have been raised against the Tournelle process, and indeed the House of Lords have in so far condemned it ; yet I cannot see it was of such hurt to the defendant as set forth. The Parliament of Paris is a Court of honour and dignity. What then could induce them to do any thing bad of itself against the defendant? I am not moved with the argument drawn from the plaintiffs first founding their argument of the alibi upon the books of Michelle; for when those books were found to be erroneous, why not resort to Godefroi's, which are not so? And as to the Monitoire, it does not strike against this part of the evidence at all. As to the enlevements, although the Mignons may have sworn falsely as to some particulars, yet it is clear they spoke truth as to their having a child taken away. The time of this enleve- ment is critical — it is surprisingly near. As to Sanry's child, this does not depend so much upon parole evidence, but upon the evidence of the church records. This enlevement is brought with most surprising exactness to the very period at which Sir John Steuart, Lady Jane, and Mrs. Hewit are in Paris, and when they can give no account of themselves whatever. io6 Lord Hailes. After Kay. Judgments by the Court of Session. There is no proof in the memory of man of an enlevement Lord Kennet having been accomplished in Paris. As to the death-bed declarations, I see Lady Jane behaving with tenderness to the defendant on her death-bed, but what she said at that time cannot properly be called a declaration. As to Sir John Steuart's declaration, it is indeed much more formal ; but we often see that people who have committed great crimes will go to death averring falsehoods. Upon the whole, I strongly feel for this defendant, but should feel more to deliver what were not the real sentiments of my heart. Lord Hailes^ — In judging of a cause of this nature, we must LopdHailes act according to strong probabilities and moral evidence. The character of parties concerned must, in such an evidence as this, have some weight. And if I could persuade myself of a good character on the part of Lady Jane Douglas, I should think it strong on the part of the defendant. But I cannot believe the opinion of some of the witnesses who have deposed so favour- ably for her upon this particular, because there is much evidence of her want of truth upon almost every occasion. Thus, when in her letters to one friend she is professing the strongest attach- ment to the Protestant religion, and telling them that she was going to a country where she might have the free exercise of that religion, she has in the meantime resolved upon going into the very heart of France, where she knew she could have no opportunity at all of hearing Protestant ministers. Her conversation with the late Countess of Stair, as it stands deposed to by the honourable Mrs. Primrose, is another flagrant instance of the truth of this observation. In her letters to Mrs. Carse, which are dated from Holland, she not only in the most solemn manner denies her marriage with Mr. Steuart, although she had been married to him several months, but likewise throws out a deal of scurrility upon her own cousine Mrs. Stewart,^ for her having repeated the news which she had heard of that marriage. There are several other instances of this deceit in her conduct, in some of her letters to her brother the Duke of Douglas, and in several other ^Sir David Dalrymple of Hailes, Bart., appointed, with the title of Lord Hailes, 1766 ; died 1792. ^ See Historical Narrative, p. 26. 107 The Douglas Cause, Lord Hailes parts of her epistolary oorrespondence. I admit that, never- theless, the private correspondence between her and Sir John is amongst the strongest parts of the evidence on the side of the defendant ; yet there is one thing exceedingly remarkable, that in none of these letters to one another do they ever complain of the suspicions propagated against the birth, nor unburden here what naturally would have been expected to have been uppermost in their minds. I am at a loss to account for the part that Lady Jane acted throughout the whole of this scene, and must attribute it to the amazing ascendency which Sir John seems to have got over the mind of this unhappy lady. Having made these observations, I now proceed to examine the evidence brought in this cause. And first as to the pregnancy. The appearance of this is proved indeed by strong testimony. I observe that several of the witnesses give as their reason for thinking Lady Jane pregnant that she was weak and pale, though it is very certain that she was so by her natural constitution. Several of the nuns at Aix-la-Chapelle have deposed strongly to the pregnancy, though they are surely not the best evidences to establish a fact of this sort. Mrs. Greig I esteem a very honest evidence, but one who is overrun with prejudices ; and I have the same opinion of Miss Primrose. Much has been said about the miscarriages by Lady Jane; and more particularly the defendant has founded strongly on the deposition of the nurse. Manger, and of Madame Rutlidge. That mentioned by Madame Manger is now given up, and the defendant supposes that she may have mistaken the Catamenia for a miscarriage. It is very possible that honest witnesses may have been deceived in their notions of the pregnancy by entertaining a sort of belief that some great event or other was to follow — such as is mentioned in Sir William Stewart's and the Earl of Dum- barton's letters to Lady Jane. Lady Catharine Wemyss is an unsuspected evidence, and yet she observed nothing of the pregnancy; on the contrary, her whole deposition tends the other way. The Countess of Wigton does not say that she herself perceived anything; she only believed it because she heard it commonly reported so by others. Mrs. Andrieux at Rheims had no notion of the pregnancy; neither had General M'Lean, the Miss Hiberts, nor Madame Sautry, the mantua- maker. At the same time, if I could give full credit to Isabel ic8 Judgments by the Court of Session. Walker, the cause would incline to the side of the defendant : Lord Haile* but I cannot believe her evidence, because she swears to things which I think incredible. A strong instance of this is that she does not remember any one thing about the Chevalier Johnston, though he went over in Lady Jane's company in the pacquet- boat to Holland. Her conversations with Madame Gillessen in German, and with Madame Andrieux in French, I cannot give credit to ; and it is truly amazing that her curiosity should never have led her so much as to look into Sir John Steuart's declaration, nor Mrs. Hewit's oath, although she had sent her from Edinburgh the papers in this cause. But these are not the most material particulars to diminish the credibility due to this witness. In the former oath she swore^ expressly that she had her hands upon Lady Jane's naked belly, and found her with live child ; whereas in her last oath, lately emitted in your Lordships' presence, she says that it was not her naked belly that she felt when she found the child move, but above her shirt, as she thinks. She further swears that she had never before felt the motion of a child in any other woman. Is it not wonderful that this witness had not the same oppor- tunity of making this trial afterwards, when the pregnancy was much more compleat ? Had she fixed upon a more early period, the difficulty would have been changed, but not done away. Another particular in which I think this witness has gone too far is in what she has deposed as to the letter from Mrs. Hewit at Paris. I am persuaded there never could be any such letter, or at least it must have been a letter wrote betwixt the 22nd and 26th day of July. Another circumstance in which this witness appears to me to have gone too far is in what she has deposed as to the letter from La Marre, received by Sir John Steuart when in Mr. Murray's, St. James's Place. The account given of it by her is not credible ; and I am persuaded the letter she alludes to is the famous fourth letter dated 9th June, 1752,. whereas they had left Mr. Murray's in September, 1751. Sir John's declaration and La Marre's letters are amongst the capital parts of the proof in this cause. First, as to his declara- tion, there can be no pretence of his vivacity to apply here to palliate his falsehood. On the contrary, there is the strongest ^ Here his Lordship spoke Latin : it is supposed because there were a. great many ladies in the Court. [Original note.] H 109 The Douglas Cause. Lord Hailes proof of a state of recollection of mind throughout the whole of that declaration. And, in fact, Sir John uses with the greatert propriety, sometimes positive assertion, sometimes a non memini, and sometimes expressions of doubt. Sir John had pretended to Mrs. Napier that he was very apt to forget names and dates, though he had a good enough memory as to facts. But the truth is that, upon considering the declaration itself, it does appear that he had a very good memory both as to names and dates, for in that declaration he does give us no less than twenty-five different names and dates. The only time that he seems to be at a loss for names and dates is when he comes to be examined about the Le Brune's house, about her lodgers, about the nurse of the child, and the banker from whom he got the money at Paris. Mr. Hepburn of Keith has in his oath deposed pretty strongly as to Sir John Steuart's want of memory, and particularly gives one instance of it which happened at Boulogne; but this is by no means sufficient evidence in opposition to so much to the contrary appearing on the face of his own declaration. As to Sir John's description of La Marre, the accoucheur, it is the most wonderful that was ever heard. He concealed his lodgings even from Sir John, and yet he frequented coffee-houses and the most public walks in Paris. And yet, notwithstanding all this. Sir John gets his address, and so sends him letters directed to the care of the post office in Paris, which he receives and answers. It has been said by Sir John and Mrs. Hewit that they were obliged to leave the Madame Le Brune's house on account of bugs ; but it is also said that they left the house they were in because it was a smokey house. Which was this smokey house? It was not Le Brune's surely, it was on account of bugs they had left this house ; and it could not be Michelle's, for they only here complain of the bugs. According to Sir John Steuart's accounts, the second child was sent to nurse within two or three leagues of Parts, on the road to Amiens ; and when he was examined afterwards upon oath he deposes that the child was a little way from Paris. In short, his whole account of La Marre, and every thing concerning him, is absurd from beginning to end. If, as Sir John said. La Marre came from Li^ge, why not go to that place to enquire for him 1 The power of the parliament of Paris did not extend here, and Sir John was in absolute no Judgments by the Court of Session. safety to go. It has been alledged that Sir John was in no Lord HaUes mistake when he called La Marre a Walloon, as he was from Montreuil sur Mer ; but suppose Sir John had said La Marre was a Roman, it might have been equally well argued he was right. I have formerly mentioned La Marre's letters ; as to these four which are forged. Sir John's alledgeance was that they were copied from the originals by Mr. Clinton at London. And this again Mr. Clinton denies. In the fourth of these letters, which I have mentioned before, there is a great deal of art displayed by Sir John. In the first place, it is evidently intended to serve as a certificate from Pierre La Marre, although in the form of a letter. It would have been morie dangerous for Sir John to have forged a certifi- cate with all the solemnities, than to forge a single letter. Secondly, it was necessary that the Pierre La Marre should be dead when he was called for to be produced, and therefore Sir John makes him to say in that letter that he was going again to Naples (on account of the air), as his health was not yet confirmed. And, thirdly. Sir John makes the letter to be delivered by a private hand, one Mons. Du Bois, a miniature painter, in order to save the danger from that question, how could you get a foreign letter delivered in England without its having the post-mark upon it? It is remarkable, too, that in this letter La Marre makes his enquiries after the youngest child by the name of Sholto Thomas, though if he had really ondoyed him, it is well known that, upon such occasions, the accoucheur never does give the child a name. Sir John has said that he never could find out this Mons. Du Bois who brought the letter ; but Sir John could not but know that if he went to a certain coffee-house in London, he would have immediately heard of any French artist whatever who had come over to follow his business in England. These four letters now in process I at first believed genuine, and was thereby convinced that the defendant was the son of Lady Jane ; but now that they are proved false and fabricated, they have great weight with me to believe that he is not her son. I will not pretend to go through the mass of proof before us, and therefore will only state a few other observations upon the remaining part of the evidence. Mrs. Hewit's memory, III The Douglas Cause, Lord Hailes instead of being weak like Sir John's, as was alledged, is really amazing, for she forgets only five dates in twenty. What are these five? They are all contained in the C5ompass of time taken up in the last part of their journey, and the time between their leaving Godefroi's and their coming to Michelle's. But at any rate, at the time she wrote the letters to the maids at Rheims, her memory must be presumed to have been clear, and yet here she is detected in contradicting herself about the story of the nurses, more particularly as to Madame La Favre and Manger. In her letter of the 27th July she would insinuate to the maids that the eldest child had had only one nurse before they met with La Favre, and yet afterwards she says they had three nurses before Manger, who came immediately after La Favre. Though, as she says, " base jades, they would not come alongst with us." When Mrs. Hewit came to be examined herself, she gave a different account of the nurses, and her letter of the 12th of August is utterly irreconcilable with the whole of her account given upon oath. Mrs. Hewit has deposed that she had no conversation with Lady Jane about the person who was to deliver her ; but is it possible to believe this ? Were it true, it would be a most singular anecdote in the history of human nature. I come now to a part of the evidence which I think unex- ceptionable and conclusive against the defendant — I mean Gk)de- froi's books, from which the following particulars are clear : Imo, That three people were entered into those books on the 4th of July, at four livres ten sous. 2do, That the account relates to a gentleman who was the head of a family. And 3tio, that this company had no servant alongst with them. In all which particulars the account exactly agrees to Sir John Steuart and his company. The defendant's hypothesis is, that this account may relate to a different company, who were in the house upon the seventh of July. But supposing that this company had escaped two visa's of the inspecteur, there is scarcely one single instance of an entry in the police books for two or more persons without a correspondent entry in the household book. As to the parole testimony of Godefroi and his wife, they had a good cause of remembrance. Sir John Steuart and Lady Jane had been recommended to them by Mr. Mallifer, syndic of ZI2 I Judgments by the Court of Session. Rheims ; and besides tliis, it was a very remarkable thing to see Lord Hailes British people coming to Paris before the proclamation of peace. And when to this we add the pointed description of Sir John's language and manner, we have no reason to think they have been in a mistake. If upon their leaving the Hotel Chalons they could have pointed out the Le Brune's, or if they could have brought any circumstances whatever to show that such a woman ever existed, it would have derogated much from the testimony of Godefroi. But no person whatever of the name of Le Brune has been found out or heard of, in the least corresponding with the accounts given of that house by Sir John and Mrs. Hewit. By their accounts one would think that the Le Brune, in whose house the delivery is pretended to have happened, was like that of Michelle, a respectable house ; not that of a garde malade, which is the asylum of the loose and wretched, a fit enough place for Mignons to go to, but not for Douglas. The non-esistence of the Madame Le Brune is evident; in short, it was necessary in this case, as in all others of im- posture, to substitute fictitious persons, and make them act their part in the same. This was particularly done in the famous case of George Salmanassar, and was one great means of his detection, as it was likewise in the case of Count Vincentio — Count De La Torre, As to the two enlevements, whatever objections may lie against the testimony of Madame Mignon, yet the whole cir- cumstance of her child's being carried off is proved by others ; and as to Saury's enlevement, the witnesses here are under no suspicion whatever. Upon the whole, his Lordship gave his opinion for sustaining the reasons of reduction. X13 The Douglas Cause. Tuesday, 14th July, 1766. JusUee-CIerk '^^^ ^°^^ Justich-Clbrk^ — It is now my duty to give my opinion upon this very important cause, the most important, taken in all its circumstances and consequences, that ever came before this Court. . The rights of filiation should no doubt be strictly guarded and secured against challenge, and, on the other hand, that same right should be equally guarded against imposture and supposi- tion of children. The plaintiffs in this cause have an essential interest, and have been found to have a good title to pursue. The situation of the defendant, and the importance of this decision are too affecting not to be felt by every body. Sorry I am, therefore, that I must now give my opinion against him, an opinion which, I hope, will appear to all, and particularly to those who know my particular regard for the noble personage who patronises his defence, to flow only from the deepest con- viction, and from my regard to the rights of sacred justice. This being so late in the debate, and so much having been so well said by others of your Lordships, it would be improper for me now to take up the cause in the same extensive view which otherways I should have done. I will therefore, in the first place, proceed to lay down a few of the principles of law and the rules of evidence upon which, in my opinion, this case falls to be determined. The first point which has occurred in this debate is Cui incumhet probatio? the arguments upon which, I think, have been strained too far by the council upon both sides. The plaintiffs and the defendant have now joined issue upon the fact ; there- fore, if the plaintiffs have not brought evidence sufficient to prove the position which they maintain, then the service must stand ; but if upon the whole of the proof we shall be convinced that the defendant is not the son of Lady Jane Douglas, then the service must fall. In all actionsi whether criminal or civil, we have two kinds of evidence to judge of, either direct or circumstantiate. ^ Sir Thomas Miller of Glenlee, appointed, with the title of Lord Barskimming, 1766 ; became Lord President, 1788 ; died 1789. 1X4 Judgments by the Court of Session. In the case before us, the proof is circumstantiate, and Lord therefore each circumstance must be proved by one or more witnesses, or by written evidence: And we must in the next place join the whole of the circumstances together, and then draw our conclusion as to the total amount. It is admitted by all lawyers, that a circumstantiate evi- dence may give as full conviction to the minds of judges as any other proof whatever. And it is likeways admitted that no part of such a proof will go so far to convince judges, as the evidence drawn from the oaths, conduct and behaviour of the parties themselves; and this, because the facts being clearly ascertained, the only question remaining is, as to the conclusion from thence to be drawn. We have heard it said, that your Lordships must have demonstration before the defendant can be turned out of the possession of hisi state : but demonstration implies the physical impossibility of the contrary, which can occur in no case of evidence. The term may indeed be often applied figuratively to proofs, but literally taken, it is an abuse of words. We have indeed seen cases where there was a moral impossibility of the prisoner's innocence, and yet, we have seen juries acquit such a one. Such a case was that of Reid, who was lately tried before the criminal Court, for the crime of sheep-stealing. This Reid was a poor man of a very suspicious character. He was found with the exact number of sheep in his possession upon the road leading from the very farm from off which they were stole, and he pretended not to bring any proof whatever, that he had attained the property of them in any lawful way. A council at that bar, who likes to distinguish himself upon such occasions, patronized the prisoner's defence, and notwithstanding the clearest and most positive evidence of all the facts which I have mentioned, " The jury acquitted the prisoner.'* Upon so strange a verdict your Lordships, members of that high Court (I mean all of you who were then present) declared your opinions seriatim, That this verdict was given in the face of most compleat evidence. It was said by some of your Lordships, " That a direct proof by two or more credible witnesses, cannot be redargued by a proof of circumstances not inconsistent with? or exclusive of the truth of the allegiance maintained by the persons accused." I readily admit the justice of this general pro- "5 The Douglas Cause. J^iee-CIerk P*^^^*^^°> ^^^ ^ ^® ^^r® ®"^^ ^^ 7^^^ Lordships as admit the credibility of Sir John Steuart, and Mrs. Hewit, and who think, that the whole of tlie plaintiffs' proofs is not inconsistent with their allegiance, must apply the principle to the decision of this case : but such of us as think the plaintiffs' proof not compatible with their oaths, cannot give this proposition room here ; it is impossible for us to do so. It has been admitted, that the mere acknowledgment of parents was not sufficient for the defendant, but it was said that he had the habite and repute of the country of his birth. I understand well the weight of the argument from habite and repute, when a child is born of a marriage in the country where his parents, his friends and his connections reside; or if in a foreign country where it shall appear, that his parents have established such a connection. But what is the habite and repute contended for here? What is its strength? Is it the habite and repute of their friends and neighbours at Paris? They had none such there, for they kept tliemselvea concealed. What then does it come out to be? Not even the habite and repute of the family where the birth happened (for no such family has been found out) but only that of the family of Madame Michelle. But who of that family was ever to question the truth of the account given by a strange lady of her having had a child : And, is it possible, that any judge can lay weight upon this as being habite and repute? When, after returning to Rheims, the same argument holds good, they came there amongst strangers who had no interest whatever in the matter; why then should such people either enquire or doubt? Much has been said of the danger of putting British people, who have transmigrated to the colonies abroad, to prove their birth ; but this alarming consideration does not strike in here, because the habite and repute arises to them from their resi- dence in such colonies, and from the knowledge of their rela- tions, their friends and their neighbours founded upon that resi- dence. But will this apply to the present case, where the parties concerned have, by their own deliberate act, shut out the possibility of any habite and repute whatever? Much has also been said of the great delay of the plaintiffs in bringing this action. If this observation was true, it would strike me in the very contrary light. Suppose that the late Duke of Hamilton had taken up a suspicion of this ii6 Judgments by the Court of Session. birth, I will not say whether action at his instance would Lord have been sustained or not ; but at any rate it was not reason- able to expect, that when the Duke of Douglas did not challenge the birth, the Duke of Hamilton should. On the other hand, to be sure, the defendant might have brought a declarator of his birth. Yet I do not impute it to him that he did not do so, but I impute it to Sir John and Lady Jane, that when they were repeatedly warned of the flagrant suspicions, they did not take the common and necessary methods of removing the suspicions, and securing evidence of the birth. If this de- fendant had been generally received as the son of Lady Jane Douglas, there would have been no room for such an imputa- tion; but when, from the beginning, the birth was suspected, not only by the Duke of Douglas, but by many others, the delay of bringing an action to have the matter cleared up, must be imputed, not to the plaintiffs, but to Sir John Steuart and Lady Jane Douglas. Much has been said on the part of the defendant, on account of the Tournelle process, and the witnesses examined by the Tournelle, instead of being omni exceptione majores, were said to be omni reputafione minores; these were two strong expressions, and I cannot but disapprove of them. I am sure I never was attached to arbitrary proceedings, but I have too much liberality ever to reflect on the honour of so respectable a Court as the Parliament of Paris. These witnesses were subject to the jurisdiction of that high Court, were examined according to law and rule; how then can such testimonies be compared to those of a slave under his master's rod? What were the grounds upon which all this prejudice was founded? They were these principally, that the witnesses were examined in private before the Tournelle; and that they were thereby tied down to tell the same story again. I can have no idea, that the strong opinion which I now notice could be founded upon the witnesses complying with the law of their country. How can this infer any suspicion of false swearing? Or why, because a witness is once sworn, shall his after evidence upon oath be thereby discredited? In England, witnesses who have sworn in one Court, are sworn again in another. This is the case in all jury-trials in that country, and it is the case in this country too, where we have witnesses examined in the Court of Session, though they had emitted their testimony formerly in that of the Justiciary. This is a 117 The Douglas Cause. j^'uaft-ci k *^^°& ^*^ ^*^ never doubted of before ; it has occurred in thi* very cause, for there are several of the witnesses who after having sworn to establish the defendant's propinquity upon his service, have been again and again examined upon your Lordships* commissions. I recollect, that there was a period when this Tournelle^ process had well nigh obstructed the course of justice. Much outcry was raised against it, both here and in another great house; and therefore it is not to be wondered at if there was some strong speeches made upon the occasion : but with- out prophesying, as my brother has done, I can say this upon the judgment of the House of Peers itself, that that Court relaxed the severity of your Lordships' judgment, and that the idea of the defendant, as to this Tournelle process, was there treated with contempt. If these Tournelle witnesses had been picked off the streets of Paris, it would have been a strong thing indeed ; but they all happened to be unsuspicious, because Lady Jane and Sir John have confessedly committed the inspection of their conduct to them. I must therefore, in order to have a compleat view of this matter, find out the sources of this alleged corruption, and bribery, and slavish fear. I cannot believe that the noble and honourable guardians of the Duke of Hamilton would have either cor- rupted or concussed the witnesses. To me it is more difficult to believe, that these persons would thus wickedly conspire against the young defendant, than that Lady Jane and Sir John should have conspired together to bring in an impostor. No jealousy can be entertained of Mr. Andrew Stuart, who carried on the whole affair in France. He has already got an honourable testimony from the bench. I back that testi- mony as to his whole conduct in this cause; and I do believe that the records of Court cannot furnish us with a more honourable instance of candour and openness than what he has shown in these proceedings. His character stood the scrutiny and examination of all his private memorials and papers concerning his enquiries in France; a trial, which, it is believed, no agent ever underwent before. In what I have further to say, I will not however rely much upon the Tournelle witnesses, on account of the clamour which has been carried so extremely high against these proceedings. I would have inclined to have given my opinion upon one general view of the evidence ; but because all your Lordships ii8 Judgments by the Court of Session. have given the particular grounds of your opinions, I shall also Lord give mine. The first thing which I take into my considera- tion is, the characters of Lady Jane and Sir John. I will not however go deep here, as I do own that this is a sort of evidence which seldom weighs far with me, as people who are honest themselves seldom suspect others. Several wit- nesses have sworn very favourably for Lady Jane upon this point of her character ; but I do own, that I see so much real evidence of the falsehood and duplicity of her character, that I cannot lay any stress upon these witnesses' opinions. Her letters to Mrs. Car&e, wherein she so much abuses Mrs. Stewart for telling a thing which she herself knew to be truth, and the whole of her conversation with Lady Catherine Wemysa at Aix-la-Chapelle, are extremely strong upon this point. In all her letters to her friends in Scotland she is full of the greatest zeal for the Protestant religion, and seems to be uneasy till she can get to Geneva, or some other place where she might have the free exercise of it; while in the mean time she goes into the very heart of France, where she could have no opportunity at all of the exercise of her own religion. But above all, this falsehood and duplicity of conduct appears in the forgery of the letters ; in which, I think. Lady Jane was concerned alongst with Sir John. But cui bono? and with what motives did they agree to impose children on the world ? I am at no loss to see these : the use immediately made of the children to get money from ' the Duke of Douglas, speaks out the design ; and it is most probable likewise, that Lady Jane believed that the dignity and estate of Angus would undoubtedly descend upon her and her issue. As to the motives for this terrible action, I do not believe they had the same views of the crime that your Lordships have. They might colour it over with public spirit, a desire to keep up the family of Douglas, and a resent- ment against the Duke of Hamilton. Lady Jane was clearly past the period of having children, according to the common course of nature. This, therefore, shows that it was at least an extraordinary thing. I there- fore differ from one of your Lordships, who, upon the account of the hability to have children, thought there was nothing at all surprising in Lady Jane's actually having children. And I do aver, that there is not one women in ten thousand, yea not one in twenty thousand, who produces children at the "9 The Douglas Cause. jSitlM-CUPk ^^^ ^^^ *^*°® ^^^ whatever signs they may have of capa- bility I only mention this, because it should have led ua to be more attentive to the particular circumstances of the allied pregnancy. As to the proof of the pregnancy, I think it not satisfactory ; it amounts to the appearance of pregnancy only: there is a bulk deposed to by the witnesses, but no evidence of her being actually and truly with child. The uncommon size of Lady Jane's belly and breast, rests on the evidence* of Mrs. Hewit and Isabel Walker ; neither of whom I believe. And as to what is swore by the other witnesses, and more particularly by Mrs. Hepburn of Keith, it goes no further than to prove certain external appearances. I therefore leave it here, and acknow- ledge, that there were the external appearances of pregnancy. Shall I hold these appearances then to be assumed? No. Shall I hold them to be real 1 No ; but I will enquire after- wards if we can have room upon the other proof, and so join the proof which I have already treated of to that other proof which may occur on the side of the defendant; but if from all circumstances taken together, I can have no conviction at all of the birth, but quite the contrary, then I must hold the pregnancy to have been assumed and false, such as must precede every imposture of children. Having said so much, I will consider slightly the other circumstances, the principal of which is their own conduct at Rheims. Sir John and Lady Jane had made a long and unseasonable journey from Aix-la-Chapelle to Rheims, under the pretence of her being to be there delivered ; and yet they loiter away there for the space of a month, without making their purpose known to any person they were acquainted with at Rheims, or even without so much as once calling for the advice of any physician or accoucheur. When at last they set off by themselves for Paris, there is no mention made of getting any recommendations to the best assistance at Paris : although that has since been given as the pretence for their going there. Not one letter from any person whatever, but that from Mons. Mallifer. It is an amazing affair, never once to have mentioned to him their real design in going to Paris ; and that they should have given Mons. Mallifer a false account of that design. I will not enlarge upon the suspicious circumstances of their having left the maid-servants at Rheims, because this was owned by one of your Lordships, Z20 Judgments by the Court of Session. who spoke on the other side, to be a strange and an unaccount- Lord able circumstance. The fact, however, stands uncontroverted, "^ ^®" '*' and the only dispute is as to the conclusion which it will bear. In all the proofs of partus supposiPio, this of the actors dropping their common attendanl^s, has commonly occurred as a capital circumstance. Sir John and Mrs. Hewit acknowledge the fact, and they saw the necessity of accounting for it; and they did accordingly give an account of it which is false. Instead of their not having so much money as was sufl&cient to transport their maids to Paris (and it would have only required the trifling sum of twelve shillings to do so) it is proved that they had plenty of money to make them live easily, although perhaps not enough to support Sir John Steuart in his dissipated course of life. It was upon this point noticed, that the defendant is not obliged to account for the conduct of his parents. This may be true in all common cases, but not in those of the last importance to the world, in which most, if not all men, agree in their notions of propriety of conduct. As they travelled along in the stage-coach to Paris, there was not the least observation made of her pregnancy, nor did she ever dis- cover the least of that anxiety natural to a delicate lady, making so far a journey at so critical a period. There was surely no motive to conceal her pregnancy, if it was true. Yea, upon that supposition it was most natural to expect, that she would have explained to the rest of the company her motives for the journey to Paris, as they might (and no doubt were able to) have given her some advice as to her conduct there. Nature dictated this, and anxiety and honour likewise. These circumstances are indeed amazing, and show to me clearly, that the necessity of the appearances of pregnancy, formerly assumed, being now over. Lady Jane designedly kept every thing as close as she could. Upon the evening of the 4th July, they arrive at the house of Mens. Godefroi in Paris ; a respectable house, and of all other lodgings the most adapted to the purpose of Lady Jane Douglas's delivery, as they had come there specially recom- mended by Mons. Mallifer at Rheims. Or if Lady Jane had thought proper to quit that house before her delivery, it was natural to have expected, that she would have acquainted Mr. or Madame Godefroi of this resolution, and desired their advice as to the proper place she might go to for that purpose. The Douglas Cause. JosUee-CIerk ^^^ ^* surely would have been natural too, to have spoke something to Mr. Godefroi about the Pierre La Marre, who was an absolute stranger to Lady Jane, and who it is now said had been spoke to before-hand to accomplish the delivery. But instead of all this, there is no talk at Mons. Godefroi's, either of a pregnancy or of a future delivery. There is not even the appearance of pregnancy here, about which we have heard so much when at Rheims. As to the Madame Le Brune's, to which it is pretended they went, and where it is said she was delivered, upon the tenth of the month, was it not to have been expected that Sir John Steuart should have been able to give some satisfactory account of this matter? But indeed if ever there was such a house, it is inconceivable that it has not ever been discovered. A train of circumstances led to such a discovery; the appear- ance of strangers, and more particularly British people of rank, must have attracted the attention of almost the whole little street in which the Madame Le Brune is said to have lived. When to this we add Sir John's note to Lady Schaw, and Mrs. Hewit's letter to the Duke of Douglas, in both of which not the house of Le Brune, but that of Michelle's, is fixed down for the place of delivery, it is clear that all this story about the Le Brune is a perfect fiction. But what I think the strongest part of the proof of the falsehood of the delivery is, the many letters wrote by Sir John and Mrs. Hewit, bearing date the 10th and the 11th of July, in which there is not the least mention made of any thing like a delivery. Suppose the defendant's hypothesis just, that these letters, bearing date of the 10th, were actually wrote upon the 9th. What then? the letter of the eleventh still remains, and strikes strongly by itself. Will an after-correction remove the difficulty? No, it makes it worse; because, if it was a real birth, what reason could there be of making any correction as to the day and hour in the letter of the 22nd of July? When to this we add, that all and each of their letters, wrote from Paris to their friends in Germany and Britain, were falsely dated from Rheims, is H possible to conceive that this circumstance should not have great weight in the cause? And indeed a long train of letters written by them from Rheims to Britain show clearly, that this of the false dates was done of design. Their not saying that the birth had happened at Rheims makes the 122 Judgments by the Court of Session. thing so much the worse ; for the whole strain of these letters Lord is to make their friends, especially those in Britain, believe that the delivery had actually happened at Rheims. This appears from Sir John Steuart's letter to the Earl of Crawford, written at Paris upon the 10th of July ; and from another letter •of the 26th of the same month, both which are falsely dated from Rheims. And when to this we add Lady Jane's letter to her brother the duke, not only falsely dated from Rheims, after the pretended delivery, but wherein she eays, that " she had come to remain there on account of the cheapness of the place and the salubrity of the air " : can we think that all these circumstances are of no importance in a proof of a most oomplicated fraud and imposture? There is still one other capital circumstance which affects me strongly in this cause, and for which there has been given no shadow of excuse; and that is, though the delivery is said to have happened upon the 10th of July, yet no notice is given of it by letters till the 22nd of that month. Try if you can find any excuse for so strange a proceeding! Can you take the hurry they were in as the least excuse for this neglect? No : they would have been naturally and powerfully prompted immediately to communicate to all their friends so joyful an event as the birth of twins. As to the alibif in Godefroi's, I am clearly of opinion, that the evidence thereof is conclusive against the defendant, not- withstanding all that I have heard thrown out against that evidence. It is clear that they all were there from the fourth of July to the thirteenth or fourteenth. There is no com- petition as to the place of their residence during this period, which indeed would have made a great odds upon this argument. As to the evidence of Madame Michelle and others of her family, they are abundantly partial to the defendant; and jet this whole evidence gives such a picture of the situation of Lady Jane upon her coming to that house, as is utterly incredible upon the supposition of a recent delivery. Instead of Lady Jane's being so weak and ill as not to be able to go even once abroad from Michelle's, (which Mrs. Hewit has expressly deposed) you have it established by the most credible testimonies, that she took two separate jaunts during that time, and that one of these was to see Versailles. What a picture does this give of the perjury committed by 123 The Douglas Cause. J^'tice-Clerk ^"' ^®^^* *^^ ^^^ John Steuart, and how well does it account for Lady Jane's never going once to see her poor, sickly, second child I For is it credible that, while she was thus taking jaunts of pleasure round Paris, she should not have found time to have seen her own child? Ab to the enlevements: I desiderated if there had been any such thing as this proved to have been accomplished in tho memory of man, and I find there is no proof of any such ; and though I am by no means clear, that these enlevements are directly brought home to Sir John Steuart ; yet, when we take the whole of these circumstances alongst with the other evi- dence which I have formerly stated, it conveys a belief to me, that these children were disposed of to Sir John and Lady Jane.^ As to the new man-midwife, Louis Pier de La Marre : I must acknowledge, That when I considered this part of the evidence, I did not think that the defendant had been drove to the desperate necessity of rearing up a different man-midwife. It is not possible to consolidate these two persons together : they are different persons clearly and tottally, in age, in name, and country. The account which the defendant now gives of this matter is destroyed by the inherent circumstances of Madame Garnier's oath, who I do believe to have been no more the nurse to the second child, than this Pierre La Marre was the accoucheur. I now come to speak a little of the conduct of the pretended parents themselves, after the supposed delivery. It appears that they were very early informed of the suspicions of the birth, and yet that they never took any prudent step to remove them. All that they did was to procure from Madame Tewis a declaration of the appearance of pregnancy at its most fallible state. As to the opinion said to have been given to Lady Jane by Lord Prestongrange, that she was not obliged to bring any proof of the birth, I do not believe the testimony of Isabel Walker upon this point; and this because Sir John and Lady Jane's joint letter to Madame Tewis shews to me, that they wanted to have had a proof of the whole, if they had dared to go to Paris to seek it. As to the forgery of the letters, I think this part of the evidence should by no means be treated like a lusus ingenii in this High Court. What a strange view of tliis cause is it, to suppose that these parties, when conscious of a true birth, 124 Lord Monboddo. After Kay. Judgments by the Court of Session. would have both (for Sir John and Lady Jane are clearly con- Lord federates) joined to support that birth by forged and fabricated "^ *^®" *' evidence ; first thereby to impose upon the Duke of Douglas, and thereafter upon all the world, by handing down this false evidence to latest generations? See what deep wounds such a thing may have given to the law ! and it is no excuse for this, that Sir John may pretend he was only conveying to the judges by means of forgery what he knew to be true. For the whole evidence shows that there never were any original letters from which these could have been taken. It was said, that though the defendant founds upon the acknowledgment of his parents, yet that, as he does not rest the whole of his plea upon this, the accounts given by his parents cannot hurt him. But is it possible to maintain that there is any weight due to the evidence of a parent who has been guilty of such repeated falsehoods, and who has in this very cause forged and used false evidence for the perverting of justice? Lord MoNBODDoi — I am not vain enough to think that any Lord thing I can say in this debate can have the effect to alter the opinions given by any of your Lordships ; but yet, as I have a full conviction that the defendant is really the son of Lady Jane Douglas, I think it incumbent on me upon this occasion to give the reasons of this my opinion at some length. The plaintiffs have now taken up a very different ground from what they at first maintained. At first the whole of their proof was said to be founded, first, upon the books of Michelle ; secondly, upon the age of the child brought to her house; thirdly, upon there being no accoucheur in Paris in the year 1748, of the name of La Marre ; and, fourthly, upon the suspicions in France at the time. These were the capital circumstances laid down in the plaintiffs' original condescend- ence. But now we have got a new cause, and there is no vestige remaining of the old one. This new cause is founded, first, on the conduct of the parties themselves ; secondly, on the alleged alibi in the house of Godefroi ; and, thirdly, upon the enleve- ments. Upon this I would observe that the changing of ground gives at no time a very favourable opinion of a cause, and that particularly in the present case it shows that the plaintiffs ^ James Burnett of Monboddo, appointed, with the title of Lord Monboddo, 1767 ; died 1799. I 125 The Douglas Cause. Lord theniselvee had no confidence in Mr. Grodefroi's evidence, wh^d they at first placed the alibi in the house of Michelle. Yet after all there is no such clear, plain, and convincing evidence brought as should take away a man's bil-thright from him. There are several very material points of law which I will beg leave to notice before I proceed to state the evidence. And, first, as to the onus probandi. This the plaintiffs in their memorial lay wholly upon the defendant. This is indeed a most dangerous doctrine, and if this was law no man whatever can say that he has a state at all. The acknowledgment of the parents and the habite and repute is the chartor of every man's birthright. Positive evidence is confined to a very few facts, and in proportion as by length of time such positive proof may be diminished, the legal presumption for filiation does encrease. But yet in the present case this defendant rests not upon that legal presumption, but has brought both direct and circumstantiate evidence of his birth ; which being the case, he cannot be turned out of possession but by demonstrative evidence. I am here aware of the observation made by one of your Lordships, that, literally taken, there can be no such thing as a demonstrative proof ; but what I call demonstration must exclude the possibility of the thing's being otherwise. Yet I do not deny that a circumstantiate proof may be here admitted, but it must be such a one as is sufficient to exclude the possibility of the real birth. Another point of law is as to the habite and repute. It was said that there was no habite and repute to a person born in a foreign country. This appears to me to be a very dangerous mistake. I cannot confine the habite and repute to the voice of the family, friends and relations at home, since it may arise from the voice of friends, neighbours, and acquaintances abroad. And in the case before us, it is clear there were no suspicions heard of in France. Even the plaintiffs' own witnesses, Madame Blainville and Madame Michelle, are strong evidences for the defendant as to his habite and repute there. The next point of law which falls to be treated of is that of the acknowledgment of the parents. It has been said that this must go for nothing, because Sir John Steuart has prevari- cated, or tijld falsehoods upon oath. But this is confounding the testimony of Sir John with the act of his acknowledgment. It would be hard indeed if a man brought to be examined in Court in the situation Sir John then was, should by mistakes, or even by telling falsehoods, deprive his real son of his birth- 126 Judgments by the Court of Session. Tight. Sir John's declaration was obtained by surprise from Lord your Lordships, and he was under a fit of sickness when he was brought to be examined before you. But even supposing your Lordships should give all the weight to this plea of the plaintiffs which they desire, what does it amount to? Only to a few mistakes in his description of the Pierre La Marre. The mistake about his being a Walloon is trivial ; it is just as if we should call a man on the other side of the water of Tay a Perth man. But surely the use made of this and of other •such mistakes cannot destroy Doctor Menager's testimony, nor that of Madame Garnier. But even suppose that Sir John had been willingly perjured, what then? Would his perjury have a stronger effect against the defendant than that of any other witness? And yet it is 'Certain that though a third person, who was a witness, had perjured himself upon the side of the defendant, it would have had no effect at all upon his general plea. The next question in point of law is, what are to be the effects ^^^^^ This proof of the pregnancy is confirmed by a proof of her capacity to have children, and of miscarriages afterwards. And because there are a few contradictions attending these mis- carriages, will we therefore say there were none? Upon this point of fact, the witnesses cannot be mistaken, although per- jured they may be. When to all this, we add the appearance of her reconvalescence upon their going to Michelle's; and when we compare the depositions of Madame Michelle and Madame Blainville -with those of the witnesses who saw Lady Jane at Aix, Li^ge and other places, it is clear, that somewhat must have happened, and what it could be but a real delivery cannot easily be imagined. As to the evidence of Dr. Menager, the story told to him by Pierre La Marre, of his having delivered a foreign lady of twins,^ exactly corresponds to the delivery of Lady Jane Douglas. Menager's testimony stands uncontradicted by any one witness. Some of your Lordships hinted, that Menager was not to be believed, because he said, that La Marre gave lectures upon midwifery ; but his own brother Fran9ois La Marre says the same thing. If Menager is perjured, he must have been corrupted. Then, who was it that corrupted him, who of the British agents was likely to corrupt him? In what he has said, he was supported by Giles, as the conversation betwixt Giles and him stands confirmed by Mons. Moreau ; although Mr. Giles was afterwards pleased to deny upon oath what he had formerly said. Madame Gamier the nurse, by the whole of the accounts she- gives, establishes beyond doubt, that the conversation which La Marre had with Doctor Menager about the youngest of the twins which he had under his care, does really relate to the youngest child of Lady Jane Douglas. In short, this is the most conclusive circumstantiate evidence that ever was. It is of the essence of a circumstantiate evidence, that the different witnesses should swear to different facts, which though independent of each other, all tend to the same point. Such a chain of evidence as the one now before us could not have been formed by chance. And if Dr. Menager and Madame Gamier had been corrupted, each of them would have said much more. This not only shows the high probability of the defendant's alledgeance, but also the high improbability of the plaintiffs'" fitory. Sir John names La Marre as being the accoucheur from 134 Judgments by the Court of Session. the very beginiimg : The plaintiffs denied the existence of such J-o^d a one ; but now he is found to have actually been a practising accoucheur in Paris in theyear 1748, and to havehad conversations with his brethren of the profession about his having delivered a foreign lady, of an advanced age, of twins. Sir John and Lady Jane further told, that they had left their youngest son under his charge somewhere in the neighbourhood of Paris. Lady Jane named Menilmontaine as the place the child was left at. Madame Rutlidge says, that Lady Jane named the place, though she has forgot the name. Are all these things then possible upon the supposition of an imposture? I wish that the plaintiffs had here given us a calculation of chances upon all these wonderful circumstances. For if all these particulars be true, as I have no doubt they are, then Sir John's contradictions and falsehoods are of no importance. Upon the whole, his Lordship declared, that he had not even a suspicion remaining in his mind of the truth of the defendant's birth. The whole fifteen judges having thus given their opinions, and the Court being equally divided upon this important ques- tion, the Lord President proceeded to state the vote. Sustain or repell the reasons of reduction 1 And it was carried by his Lord- ship's casting voice, Sustain. And then the judgment of the Court was wrote out in the following words. " The Lords having . considered the state of the process, the writs produced, and testi- monies of the witnesses adduced, and heard parties' procurators thereon ; and having advised the same with the memorials, observations, and other papers given in by each party, they sustain the reasons of reduction, and reduce, decern and declare accordingly." For the Plaintiflfs — For the Defendant — The Lord President. Lord Stricken. Lord Barjarg. Lord Kames. Lord Alemore. Lord Auchinlbck. Lord Eliock. Lord Coalston. Lord Stonefield. Lord Pitfour. Lord Kennbt. Lord Gardenstone. Lord Hailes. Lord Monboddo. Lord Justice-Clerk. 135 The Douglas Cause. Speeches in the House of Lords. Lord Lord Camden^ (Lord Chancellor)2 — My Lords, the cause berore us is, perhaps, the most solemn and important ever heard at this bar. For my own share, I am unconnected with the parties, and having, with all possible attention, considered the matter, both in public and private, I shall give my opinion with that strictness of impartiality to which your lordships have so just and equitable claim. We have one short question before us — Is the appellant the son of the late Lady Jane Douglas or not? — I am of the mind that he is ; and own that a more ample and positive proofs of the child's being the son of a mother never appeared in a Court of justice, or before any assize whatever. The marriage of Lady Jane to Colonel Steuart, August the 4th, 1746, is admitted on all hands. Her pregnancy in January, 1748, and the progress of it, were observed by many people; at Aix-la-Chapelle it was notorious; her stays were widened ; the nuns of the Convent of St. Anne discerned it, notwithstanding Lady Jane's modesty; the maid servants are positive of the fact. The Earl of Crawford wrote an account of it to the Duke of Douglas, not as an hearsay, but as a fact of which he himself was fully satisfied by ocular inspection ; and if there be a pregnancy, there must be a delivery, which accordingly happened by the positive evidence of Mrs. Hewit, who has deposed that " she received them into her lap as they came from Lady Jane's body." She was delivered of twins on the 10th of July, 1748, at Paris, in the house of Madame le Brune, in the Fauxbourg St. Germaine. Lady Jane's ability to bear children is established by many witnesses, and ^Sir Charles Pratt, Lord Chancellor 1766-1770; created Lord Camden 1765 ; died 1794. 2 From " The History, Debates and Proceedings of both Houses of Parliament of Great Britain, ] 743-1777," vol. v. pp. 112-124, collated with the report in Francis Hargraves' " Collectanea Juridica." For Lord Camden's speech see also Campbell's "Lives of the Chancellors," v. pp. 289-90. ^"He did not use his carefully prepared notes, pace Sir George Hardinge." [Campbell's " Lives of the Chancellors," appendix.] 136 Archibald Douglas of Douglas, supported by Lords Camden and Mansfield. From a Mezzotint in the British Museum. Speeches in the House of Lords. a miscarriage after the birth of twins still more and more chancellor proves the delivery. But, my Lords, there is another proof, no less convincing, that the appellant is really the son of Lady Jane, and this arises from the uniform tenderness shown towards him. 'Tis in proof that, on every occasion, she showed all the fondness of a mother; when he casually hit his head against a table she screamed out and fainted away; when her husband, the Colonel, was in prison she never wrote to him without making mention of her sons ; she recommended them to clergymen for the benefit of their prayers, is disconsolate for the death of the youngest; takes the sacrament, owns her surviving son ; does everything in her power to convince the world of his being hers ; blesses and acknowledges him in her dying moments ; and leaves him such things as she had. Sir John likewise shows the same tenderness in effect. He leaves him 50,000 merks by a bond in September, 1763, ten years after the death of Lady Jane; and on his death-bed solemnly declares, before God, that the appellant is the son of Lady Jane. " I make this declaration," said he, " as stepping into eternity.'' A man that is a thief may disguise himself in publick, but he has no occasion for any mask when in private by himself. These positive declarations convinced the Duke of Douglas, and he left his dukedom and other estates to his nephew, the appellant, who was regularly served heir thereto in September, 1761 ; when he was possessed of all the birthright of a son, so far as the oaths of witnesses, the acknowledgment of parents, and the established habit and repute could go. The cruel aspersions thrown out against Lady Jane and the Colonel had been refuted by the late Duke of Argyle and the Countess of Stair. No mortal doubted the appellant being the son of Lady Jane, except Andrew Stuart ; his father, Archibald Stuart; Major Cochrane, who is married to Stuart's sister ; with White of Stockbriggs, a principal actor in these scenes. These doubted the matter, and Andrew Stuart, 4 as by concert, went over to France, not to procure evidence of a real fact, but to suborne witnesses to establish an article that never existed except in their own imagination. The design was bad, and the means to accomplish it were no * The name is left blank in the report in Francis Hargraves' " Collectanea Juridica" (vol. ii. p. 386-484). 137 The Douglas Cause. Lord lees criminal I It is needless to follow the searcher through all the scenes of his enquiry, the result of which was to return to Scotland, enter an action against the appellant, and bring his own father to condemn him, at a time when the old gentleman was in a condition every way deplorable. And taking advantage of his inaccuracies, he makes a second tour to Paris, where he published a Monitoire entirely to seduce witnesses, and influence them to commit the blackest perjury. In this paper he describes the person of Sir John Steuart, Lady Jane Douglas, and Mrs. Hewit ; asserts that they had purchased two children, whom they wanted to impose upon the world in order to defraud a real heir of an immense estate and fortune; and inviting all who could give light into the matter to come to his lodgings, which he particularly described. Mr. Stuart certainly appeared like the guardian of the Duke of Hamilton, a pompous title, which drove several to their own destruction, and in hopes of a reward. Among the number of those was Madame Mignon, a glass manufac- turer's spouse, who, after conversing with Andrew Stuart and his clerk, and receiving presents from them, comes in before the Toumelle Criminelle and deposes that she had sold her own child to foreigners whom she did not as much as know. Can a woman forsake her sucking child? is a rhetorical remonstrance handed to us from the highest authority. The thing is incredible, and yet the woman has sworn it! A circumstance sufficient to render her testimony of no force, when opposed to the dying declarations of Lady Jane Douglas and Colonel Steuart, and to the positive oath of Mrs. Hewit, whose character is established upon a very good foundation ; but take the declaration of madam in all its extent, yet she has said nothing to affect the appellant ; the time when the people to whom, with every other circumstance, prove her not to have been the mother of the young gentleman ; his complexion, the colour of his eyes and hair, prove that he was not hers. The same thing might be said of the son of Sanry, the rope dancer, whom the counsel for the respondent would infer to be the child Sholto, the younger of the twins, and, as a strong proof of the same, urged that the two were but the same identical person under different names; and your Lordships were entreated to keep in your view the rupture under which each of them laboured in order to prove the 138 Speeches in the House of Lords. identity ! But how comes all out ? Saury's child could Lord «peak in November, 1749, but Sholto could not utter a word for some months after he came to Mr. Murray's house in December, 1749. And now evidence is offered to be produced -at your Lordships' bar, that the child Sholto had no rupture in 1749, that he was as sound as any person within these walls ; certainly Mr. Murray, the most material witness in this affair, is more to be credited than madam. Your Lordships have heard much ingenuity displayed in •order to prove that Lady Jane's pregnancy was imaginary; the symptoms are allowed, but the reality is now denied, though once Andrew Stuart himself was forced to acknowledge that Lady Jane was actually with child. If Lady Jane or any other woman had such symptoms, it is impossible she could have been eased of them so soon in any other manner than ^yy a delivery ; had she been ill of a dropsy, her bulk would not have been totally diminished in so short a time as from the 2nd of July to the first week of August, when all who saw her at Rheims concluded that she had but lately lain in. Great stress has been laid upon the letters said to have been forged in the name of Pierre La Marre, the man-midwife, the person who delivered Lady Jane. I admit them to be forged, and yet this forgery is with me a proof of Lady Jane's innocence; Sir John's hardships are admitted ; and if he, after so long a confinement, should cause the letters that had passed between La Marre and him to be translated in order to amuse liimself, or to satisfy Lady Jane that they were not lost, it was no way criminal. Lady Jane received them, but observing they were not originals she laid them by, so -conscious was she of her own innocence that she did not use them, nor ever would they have made their appearance had it not been for the conduct of Andrew Stuart, who, upon getting an order to search Lady Jane's repositories, found out these letters, produced them in Court to Sir John, when under all the miserable circumstances of a man groaning under a load of years, infirmities, and the acutest pains. The evidence of Godefroi, the landlord of the Hotel de Chalons, in the Rue St. Martin, is contradictory and incon- sistent, his books being in every way defective and erroneous ; nor does Andrew Stuart appear in a favourable light in this particular. When first he came to Godefroi 's house both the man and his wife were ignorant of the matter; neither 139 The Douglas Cause, Lord the one nor the other recollected Lady Jane Douglas or her husband till Andrew Stuart desiring a sight of the livre d'inspecteur, found two articles one of them Mr. Flurat Vexcossois et sa famille sont entri, 8me Juliet, 1748, and this he positively affirms, with oaths and imprecations, to be the handwriting of Sir John Steuart, with which he pretended to be thoroughly acquainted ; but he was obliged to retract when other postages were found to be pf the same hand- writing. This postage was found to be posterior to one written on the 12th, and the landlady of the house declared that she herself had marked it down. He had fifteen rooms and ten closets, which they pretended always to be full, and yet in their book it does not appear there were three persons in them during Colonel Steuart's pretended abode ; and, what is pretty strange, they had many women lodgers during that year, and yet they depose they remember none but this lady, whom Andrew Stuart would have to be Lady Jane Douglas. They even differ with respect to the names of their servants ; the counsel at the bar have acknowledged the inaccuracy of the books owing to the avocations of the man elsewhere, and to the inadvertency of his spouse, continually hurried by a multiplicity of business. Besides a postage in a book, such as the Uvre d'inspecteur, which, like a waste-book, contains things just as they occur, or the livre de depense, to which the articles of the former are transferred, bears no manner of convincing proof that the persons mentioned in these staid at such and such places, it being a customary thing to mark down the name of the person the moment he takes the lodging ; and it is notorious that many persons have paid a week, nay, a month's lodging, without sleeping a night in it ; and this is no more than equity, since the same was reserved for their use. But here, my Lords, the pursuers in this affair have destroyed their own cause; they have brought a sort of proof that Lady Jane Douglas was at Michelle's house, called Le Petit Hotel d'Anjou, in the Rue Serpente, Fauxbourg St. Germaine; and this at the very time when they would prove her to have been at the house of Godefroi, of whom so much has been said and heard. Michelle and Godefroi disagree in everything except in the irregularity of their books, and it, indeed, is hard to say which of the two excels most in that particular ; but not to insist on the irregularities, it is proved to be the 140 Speeches in the House of Lords. practice in Paris, and of Michelle in particular, to write Lord J^ ., Til ij.ij Chancellor people s names m these pohce books as entered on tne day the room was hired, though the person does not enter for some days after. To insist on these things, my Lords, is tedious, and yet the importance of the case requires it. One Madame Blainville swears that on one of the days betwixt the 8th and 13th of July she accompanied Lady Jane in a coach to take a view of Versailles, and at another time to see the Palace (Place?) de Vendome; but this witness is, in every respect, contradicted by a multiplicity of evidence, and in every view her testimony appears to be absurd and preposterous. First, she is contradicted by Mrs. Hewit, whose deposition bears great weight with me, as also by other witnesses, for, first, she, Blainville, says that Sir John and his family were eight days in Michelle's before the child was brought to the house, whereas Michelle's family all swear that he was brought next day. Secondly, she says that the child was given to the nurse La Favre the very night of his arrival ; that she saw her carry him home with her, and that the Lady Jane visited him in the nurse's house; whereas, on the contrary, it is proved that Favre remained four days at the hotel, during which period Lady Jane was nowhere abroad. Thirdly, she deposes that no person visited Sir John and Lady Jane during their stay at Michelle's ; whereas by the oath of Madame Favre, a gentleman visited him there ; but be that as it may, Lady Jane was delivered on the 10th of July, and Blainville does not say she went to Versailles till the 27th ; and it is no new thing for a lady, however delicate, so long after delivery to go so far in a country where the weather and roads are so remarkably fine and the carriages every way easy and convenient. All these objections to the reality of the appellant being^ the son of Lady Jane are imaginary, and hitherto have been reputed to the honour of the innocent, and the more firmly establishing him in the possession of his birthright. They only tend to render her virtues more brilliant and illustrious, for as the allegations never existed in fact, but in the imagination of Andrew Stuart ; so, when put to the trial, they must necessarily fall to the ground. Thus, he asserted that Colonel Steuart received £550 from the Earl of Morton's banker some days before Lady Jane's lying-in, and from- thence would infer that her delivery at Madame Brune's, an K 141 The Douglas Cause. l£>*d obscure house, was only to carry on the imposture ; but now it appears that this money was not received till sixteen days after. How unfortunate for the Duke of Hamilton to be under the direction of such a man I One who has involved him in such an immensity of expenses, and this by examining a multitude of witnesses upon articles really foreign to the cause, which, indeed, is not the Duke of Hamilton's ; it is the cause of Andrew Stuart, who has acted eo estrange a part, as well deserved the observation made at the bar, with great propriety, " That if ever I was to be concerned in any business with him, I should look upon him with a jealous eye." ^ I shall not follow >the noble Lord who spoke last through the various descriptions he has given us of midwifery. His observations may be just, but they cannot affect the character of Lady Jane Douglas, or the cause of the appellant, her son. The question before us is short : Is the appellant the son of Lady Jane Douglas or not? If there be any Lords within these walls who do not believe in a future state, these may go to death with the declaration that they believe he is not. For my part I am for sustaining the positive proof, which I find weakened by nothing brought against it ; and in this mind I lay my hand upon my breast, and declare that in my soul and conscience I believe the appellant to be her The Duke of Bedford then spoke [for about forty minutes] in favour of Andrew Stuart's procedure and in condemnation of the Tournelle.^ ilS^sfleld Lord ManspibldI — My Lords, I must own that this cause before us is the greatest and most important that occurs to me. It is no less than an attack upon the virtue and honour of a lady of the first quality, in order to dispossess a young man of an eminent fortune, reduce him to beggary, strip him of his birthright, declare him an alien and a foundling. I have slept and waked upon this subject, considered it upon " Walpole says he said — " He was sorry to bear hard on Mr. Stewart [Stuart], but justice compelled him." ["Memoirs of the Reign of George ni.,''iii. p. 204.] • "Collectanea Juridica." 1 William Murray, third son of Viscount Stormont, Chief- Justice King's Bench 1756-88, and created Lord Mansfield. He was created Earl of Mansfield 1776, and died 1793. 142 The Earl of Mansfield. From a Print. speeches in the House of Lords. my pillow, to the losing of my natural rest, and with all the Lord judgment I was capable of, have considered the various articles that make up this long and voluminous cause, upon which I am now to give my opinion before your Lordships. I apprehend that, in the matter before us, three things are to be considered. The situation of Lady Jane, before her delivery, at her delivery, and after it was over : to all which the Chancellor has spoken with great propriety. It is proved beyond a doubt that she became pregnant in October, 1747, at the age of forty-nine years, a thing far from being uncommon, as is attested by physicians of the first rank and confirmed by daily experience; and that in the month of July she was delivered of twins, one of whom died, the other is still alive ; he has been presented to the world by Sir John Steuart and Lady Jane Douglas as their son ; nor can he be wrested from the hands of his parents unless some other hand in their lifetime claimed him as their child in a legal and justifiable way,^ This action, my Lords, did not lie against the appellant as an imposter; for an imposter, in the sense of the law, is a person who wilfully and knowingly " pretends to be different from what he really is, in order to defraud another, and to impose under a fictitious name upon the publick." If any be an imposter, it must have been Lady Jane, whom they ought to have prosecuted in her lifetime, and not at the distance of nine years after her death. The method of discovering an imposter is to bring his accomplice to the Court before which the imposter was arraigned ; and if, after a fair trial, the accused person be found guilty, let him take the consequences thereof; but this the respondents have neglected. The appellant has been for five years four months and twelve days the acknowledged son of Lady Jane Douglas ; and for thirteen years and two months the son of Sir John Steuart, before any attempt was made to rob him of his parents, his birthright, and his all. As the Lord Chancellor has anticipated much of what I intended to speak upon this subject, so I shall only touch * Walpole says ("Memoirs of the Reign of King George III.," pp. 204-6), that Lord Mansfield spoke *' with still more personal severity to Stuart" than the Chancellor, till he nearly fainted into fatigue. The report of the speech we print has no specific attack. Stuart in 1773 printed " Letters to the Rt. Hon. Lord Mansfield," to vindicate his point of view. M3 The Douglas Cause. I^>pd at the situation and character of the deceased, whom I remember in the year 1750, to have been in the most deplorable circumstances. She came to me (I being Solicitor-General) in a very destitute condition, and yet her modesty would not suffer her to complain. The noble woman was every way visible, even under all the pressure of want and poverty. Her visage and appearance were more powerful advocates than her voice; and yet I was afraid to offer her relief, for fear of being constructed to proffer her an indignity. In this manner she came twice to my house, before I knew her real necessities; to relieve which now was my aim, I spoke to Mr. Pelham in her favour, told him of her situation with regard to her brother the Duke of Douglas, and of her present straits and difficulties. Mr. Pelham without delay laid the matter before the King ; the Duke of Newcastle, being then at Hanover, was wrote to ; he seconded the solicitations of his brother. His Majesty immediately granted her £300 per annum out of his privy purse ; and Mr. Pelham was so generous as to offer £150 of the money to be instantly paid. I can assure your Lordships that I never did trouble His Majesty for any other. Lady Jane Douglas was the first and the last who ever had a pension by my means. At that time I looked upon her as a lady of the strictest honor and integrity, and to have the deepest sense of the grandeur of the family from which she was sprung ; a family conspicuously great in Scotland for a thousand years past ; a family whose numerous branches have spread over Europe; they have frequently intermarried with the blood royal; and she herself was descended from Henry VII. ^ I took care that his late Majesty should be made acquainted with her family and name to the intent that though she was married to Colonel Steuart, a dissipated and licentious man, and who had been in the rebellion of 1715, yet he would pass it over, as she was of a race who had always been eminently loyal, her brother having charged as a volunteer at the head of the cavalry in the year 1715, when his cousin the Earl of Forfar died like a hero in defence of the Government ; and that his Grace had in the year 1745 treated the rebels and their leader with 'This was not so. Lady Jane Douglas was descended from the 5th Earl of Angus. It was Archibald, 6th Earl of Angus, who had married Queen Margaret Tudor, sister of Henry VIII. , Dowager of King James V. , without male issue, but through his daughter was great-grandfather to King James VI. and I. 144 Speeches in the House of Lords. contempt and ridicule; and indeed His Majesty, from his }f*''*|,^^ wonted magnanimity, spoke nothing of her husband ; but treated her with all the respect due to a noble woman of the first rank and quality ; one who carried all the appearance of a person habituated to devotion ; and for a number of years trained up in the school of adversity and disappointment. Is it possible, my Lords, to imagine that a woman of such a family, of such high honour, and who had a real sense of her own dignity, could be so base as to impose false children upon the world? Would she have owned them on every occasion? Was ever mother more affected for the death of a child than she was for that of Sholto, the younger of her sons? "Will you," said she, "indulge me to speak of my son?" and cried out with great vehemency, " Oh, Sholto ! Sholto ! My son Sholto ! " and after speaking of his death she said, " She thanked God that her son Archie was alive. What," said she, " would the enemies of me and my children say if they saw me lying in the dust of death upon account of the death of my son Sholto? Would they have any stronger proof of their being my children than my dying for them?" She still insisted that the shock which she received by the death of Sholto and other griefs she had met with were so severe upon ' her that she was perfectly persuaded she would never recover, but considered herself as a dying woman, and one who was soon to appear in the presence of Almighty God, and to whom she must answer. She declared that the children Archie and Sholto were bom of her body, and that there was one blessing of which her enemies could not deprive her, which was her innocency, and that she could pray to Almighty God for the life of her other son, that she was not afraid for him, for that God Almighty would take care of him. And what is remarkable, the witness Mary Macrabie observed, that the grief for the loss of the child grew upon her. Would she, my Lords, have blessed her surviving child on her death-bed? Would she have died with a lie in her mouth and perjury on her right hand? Charity, that thinketh no evil, will not suffer me for a moment to harbour an opinion so cruel and preposterous. Or can we suppose that two people who had not wherewith to support themselves would be solicitous and show all the tenderness of parents towards the children of creatures, who, forgetting the first principles of instinct and humanity, had sold their children to people 145 The Douglas Cause. Lord whom they did not even as much as know by their names. The act of Joseph's brethren in selling him is represented as wicked and unnatural, but indeed the crime of Madam Mignon and Madam Sanry is still more black and atrocious! To carry this a little further, suppose Lady Jane Douglas had acted out of a principle of revenge towards the family of Hamilton, yet Sir John Steuart had no occasion to do so, much less continue the vindictive farce after her death, especially when married to another spouse. And here we see Sir John as much a parent to the appellant as Lady Jane ; he was every way fond of him ! it is in evidence. I know it to be true. My sister and I have been frequently at Mrs. Murray's with them and were always delighted with the care we observed. No mortal harboured any thoughts of their being false children at that time, I mean in 1750 and 1751, Every person looked upon them as the children of Lady Jane Douglas and of Colonel Steuart. The Countess of Eglinton, Lord Lindores, and many others have upon oath declared the same thing. No sooner does the Colonel hear of the aspersions raised at Douglas Castle, and of Mr. Archibald Stuart's swearing that Count Douglas, a French nobleman, had informed the Duke of Douglas that they had been brought out of an hospital, than he returned an answer to Mr. Loch, who gave the intelligence in a letter to Mrs. Hewit, and wrote him in all the terms of a man of spirit, cordially interested in the welfare and happiness of his son. Both he and Lady Jane begged the favour of Chevalier Douglas, a French gentleman and officer then at London, to acquaint his cousin, the Count, with what was said of him. This the Chevalier undertook, and fulfilled with the fidelity of a man of honor. And the Count, in consequence of the application, wrote a letter not only to Lady Jane but to her brother the Duke, in all the language of politeness and humanity, disowning what was said of him. But, my Lords, the Duke of Douglas himself was fully satisfied of the appellant's being the real son of his sister Lady Jane, for on beginning to be known after his marriage and to relish the pleasures of social life he became very inquisitive " about the size, shape, and complexion of the appellant, and if he appeared to be a smart boy." He employed Sir William Douglas and others in whom he could confide to enquire of Mrs. Hewit, Lady Jane's companion, and of Euphemie Caw and Isabel Walker, the two maid-servants 146 Lord Thurlow. From a Mezzotint after the Portrait by Romney. Speeches in the House of Lords. who had lived with them abroad, and observed their conduct Jg^^Jg^gj^j in the most unguarded moments, concerning the birth of the children. He even searched into the characters of these, and it appears from the depositions of clergymen and gentlemen of the first rank in that country that they were women worthy to be believed. He even went in person to visit Mrs. Hewit, conversed with her in the presence of his gentleman, Mr. Greenshails, concerning his sister's delivery, and the accounts given by these, like the radii of a circle all pointing to one and the same centre, confirmed the reality of Lady Jane being the mother of the young gentleman. He was satisfied, acknowledged him for his nephew, and left him his heir. If the Duke of Douglas, after so serious an enquiry, was convinced, why should not we? 'Tis true, his Grace has sometimes expressed himself warmly against the surname of Hamilton even in Lady Jane's time, but never so warmly as to prefer a supposititious child to the Duke of that name, for he only declares, " That if he thought the children were Lady Jane's,'* he would never settle his estate on the family of Hamilton. Nor did he till after detecting the frauds and conspiracies that had been so long and so industriously carried on against his sister and himself make any alteration in his first settlement. After the Duke's death, the appellant was served heir to his uncle, according to the form prescribed by the law of Scotland upon an uncontroverted evidence of his being the son of Lady Jane Douglas, takes possession of the estate, and is virtually acknowledged heir by the Earl of Selkirk and by the Duke of Hamilton's guardians themselves, for these enter actions before the Court of Session declaring their right to certain parts of the estates, upon some ancient claims which the Judges there declared to be groundless. But in the whole action there was not the least intimation that Mr. Douglas was not the son of Lady Jane. It is needless to trouble your Lordships with the conduct of the respondent's guardians at Paris and elsewhere upon the Continent. Nothing has been discovered that could throw the least blemish upon the honor of Lady Jane Douglas or Colonel Steuart. They have indeed proved her straits there and his imprisonment here; but both these circumstances carry a further confirmation that the appellant is their son, for in every letter that passed between them the children are named with a tenderness scarce to be believed. Whereas, had they 147 The Douglas Cause. ^^ been counterfeited, as is pretended, they would have been apt to upbraid one another for an act eo manifestly tending to involve them in their sufferings. Suppose, my Lords, that Mignon, the glass manufacturer's wife, the pretended mother of Mr. Douglas, had deposed the same things in Lady Jane's presence as she had so long after her death. From the evidence it appears that she had never seen Lady Jane ; by her words both in private and publick, she seems to ddserye no manner of credit. * The oath of Mr. Murray, a principal witness, has destroyed everything she asserted. The same thing might be said of Sanry, the rope dancer's spouse, whose child's rupture we were earnestly desired to keep in view to prove him to have been the identical Sholto, the younger of the twins ; and now evidence is offered that the child Sholto had no rupture, but was as sound as any within these walls. Your Lordships have been told, and I believe with great truth, that a gentleman, shocked at the assertion, had wrote to the counsel that the influence arising from so false a suggestion might be prevented. I always rejoice to hear truth, which is the ornament of criticism and the polished gem that decorates a bar. The scrutiny in France, followed by an action in Scotland, produced two things never intended by them ; it brought forth a striking acknowledgment of the appellant by his father, Sir John Steuart, as is manifest from the bond of provision, read at your Lordships' bar. Sir John openly acknowledged him before the Court of Session in the midst of a crowded multitude and when labouring under a load of anguish and pain. Nay, when by himself, he solemnly declared before God, in the presence of a Justice of the Peace and two clergymen, that the young gentleman was his son. It likewise established the character of Lady Jane, for on examining the proof obtained through the vigilance of the Duchess of Douglas, Lady Jane's reputation is unsullied and great. All who had the honor of being known to her declared that her behaviour attracted universal esteem, and Madame Marie Sophie Gillesen, a maiden lady with whom she lodged several months, deposes that " Lady Jane was very amiable, and gentle as an angel." It further proved that the elder child, the appellant, was the exact picture of his father, and the child Sholto as like Lady Jane as ever a child was like a mother. I have always con- sidered likeness as an argument of a child's being the son 148 Speeches in the House of Lords. of a parent, and the rather as this distinction between Loi'd • T -1 1 • 1 1 • • T -1 1 xt. • Mansfield individuals m the human species is more discernible than in other animals. A man may survey ten thousand people before he flees two faces perfectly alike; and in an army of an hundred thousand men every one may be known from another. If there should be a likeness of features, there may be a discriminancy of voice, a difference in the gesture, the smile, and various other things, whereas a family likeness runs generally through all these, for in everything there is a resemblance, as of features, size, attitude, and action. And here it is a question whether the appellant most resembled his father. Sir John, or the younger, Sholto, resembled his mother. Lady Jane. Many witnesses have sworn to Mr. Douglas being of the same form and make of body as his father; he has been known to be the son of Colonel Steuart by persons who had never seen him before, and is so like his elder brother, the present Sir John Steuart, that except by their age it would be hard to distinguish the one from the other. If Sir John Steuart, the most artless of mankind, was actor in the enlevement of Mignon and Saury's children, he did in a few days what the acutest genius could not accomplish for years. He found two children, the one the finished model of himself, and the other the exact picture in miniature of Lady Jane. It seems Nature had implanted in the children what is not in the parents ; for it appears in proof that in size, complexion, stature, attitude, colour of the hair and eyes, nay, in every other thing, Mignon and his wife, Sanry and his spouse, were toto ccelo different from and unlike to Sir John Steuart and Lady Jane Douglas. Among eleven black rabbits there will scarce be found one to produce a white one. The respondents' cause has been well supported by the ingenuity of its managers, and great stress has been laid upon the not finding out where Madame Le Brune lived and where the delivery was effected, but this is no way striking if we consider that houses are frequently pulled down to make way for streets, and houses are built upon the ground where streets ran before. Of this there are daily examples in this metropolis. However, we need enter into no arguments of this kind, as there is a positive evidence before us. How is it possible to credit the witnesses, some of them of a sacred 149 The Douglas Cause. mt^ flAid character, when they speak of Lady Jane's virtues, provided we can believe her to have been a woman of such abandoned principles as to make a mock of religion, a jest of the sacrament, a ecoflf of the most solemn oaths, and rush with a lie in her mouth and perjury in her right hand into the presence of the Judge of All, who at once sees the whole heart of man, and from whose all discerning eye no secrecy can screen, before whom neither craft nor artifice can avail, nor yet the ingenuity and wit of lawyers can lessen or exculpate. On all which accounts I am for finding the appellant to be the son of Lady Jane Douglas. Upon which judgment was given — " Die Lunee, 27th February, 1769. Counsel being fully heard and debate had in this Cause it is ordered and adjudged that the Interlocutor complained of be reversed.*' But the following Protest was entered : — " Die Lunse, 27 Februarii, 1769. Dissentient — Because, upon the whole of the evidence, it appears to us that the appellant has not proved himself to be the son of Lady Jane Douglas, and consequently not entitled to the character of heir of tailzie and provision to Archibald Duke of Douglas. Because we are of opinion that it is proved that the appellant is not the son of Lady Jane Douglas. " Bedford. " Bristol, C.P.S. " Sandwich. " DuNMORB. "Milton." The two reports of the speech of Lord Camden, the Lord Chancellor, on the Douglas Cause in the House of Lords are so different that it makes it advisable to give the second report from the Scots Magazine of 1769, p. 699. It is most probably the unrevised but perhaps more correct report. Lord My lords, I shall now take the liberty to submit to your lordships what occurs to me upon the consideration of this cause, which hath been pled at great length at the bar, and hath been heard by your lordships with great patience and attention. The rank in which I have the honour to sit in this House will give such ground of expectation, as I am afraid ISO Speeches in the House of Lords. it will be impossible for me to acquit myself to your lordships' ^J^^ggu^p. satisfaction on this occasion. I am, however, happy in this case, in the expectation of being heard by your lordships with seriousness and attention. The impropriety of many argu- ments entered into by the other lords that are not used to speak in questions of this kind has made it necessary for me in this case to say the more. I should have been glad to have been relieved from the trouble of entering minutely into every branch of this great cause. This I find is now un- avoidable, and I am therefore under the necessity to beg your lordships' indulgence while I go through the evidence, which I will do as shortly as possible. I am satisfied that your lordships will pay more regard to one of this House delivering his opinion as a judge than to any of the counsel at the bar. In delivering the grave sentiments of judges none in this House dare wilfully to mistake the evidence, or to go beyond the fact. I come, my lords, to consider this cause with the most perfect indifference. I am happy, my lords, in having no connection whatever with any party on either side. I have not now, nor had I ever, I protest, any reason or any wish, as I believe none of your lordships have any wish whatever, beyond that of justice being truly and impartially adminis- tered. I confess I never was so much perplexed in fixing my judgment in any question as in this cause. I was long in forming any opinion; but this opinion being now formed, your lordships will find it is, indeed, very positive, very clear. In order to obtain this clearness, I have waded through more intricacy and doubt than I ever before met with in my life. A variety of circumstances arising almost upon every deposition made each a separate cause ; every variation, every opposition, in the evidence formed a several question. I have been en- abled, by much thought and more than ordinary application, to form a solid judgment, more from a careful perusal of the whole evidence than from what passed at the bar. Though much perplexed, the mind is at last worked up to an opinion ; and an opinion when once so formed, after much study and deliberation, is more likely to be lasting and permanent than an opinion taken up suddenly and without much study. I will now, my lords, endeavour to state the evidence, and give you the grounds upon which my opinion is formed, with as much clearness and gravity as if I was sitting below in the 151 Xhe Douglas Cause, Lord Court of Chancery pronouncing my opinion upon the most important cause. If, my lords, I was possessed of the talent of eloquence (which, I am sure, I am not) I know well this is not the place. Your lordships are not the persons for eloquence to work upon. Your lordships will fix your eyes upon the evidence, see the cause throughout, abuse no person without cause, and spare none that deserves censure. It is the glory of a Court of justice to deal fairly and impartially, and not to discover the least prejudice, prepossession, or partiality to either of the parties. I shall have no occasion, my lords, to give a detail of facts. Your lordships are so well apprised of the whole facts in this case that this has become totally unnecessary. The first thing material in this cause is to state the question truly in order to determine what shall be the rule of evidence and the effect and application of such evidence. Much has been said by the counsel at the bar, and much has been written on the question concerning the onus probandi. Notwith- standing the many learned hints that have been thrown out on that head, it appears to me that in the examination of the evidence this question is totally immaterial. This has been admitted, and never denied, to be a solid ground of decision : That every person who is fairly in possession of a state of filiation cannot be dispossessed of that state without clear, strong, and decisive evidence. If the defender in the present case is fairly in this state of possession, your lordships will then suppose everything in his favour, and presume nothing to his disfavour. What is it then that establishes the possession of filiation? It is the acknowledgment of the parents, and habit and repute. The acknowledgment of the parents is in this case clear beyond contradiction, from the very hour of the birth down to the time of the mother's death. And that this acknowledg- ment has been constant, uniform, and invariable is proved by all the witnesses. The habit and repute is not so clear, so indisputable, so free from imputation as the acknowledgment of parents. I am desirous to have it always solemn and uniform ; I wish it was sullied by no calumny, blasted by no injurious reports. In this case it has been said — and it must be admitted — that xsa Speeches in the House of Lords. rumours did arise prejudicial to the real birth soon after Lady ^^^^^^^^^ Jane's delivery, and before her coming into Great Britain. But, my lords, the ground of these rumours is known. They have been traced to their source and origin. The same per- sons who set up private and secret suspicions of the delivery, and endeavoured to blast the reputation of the birth, thought it necessary to shut the ears, as well as the doors, of the Duke of Douglas against the mother and the children. I think I am entitled to say upon the evidence in this cause that those rumours were raised and propagated by the friends of the family of Hamilton. This, in fact, is proved. Those who saw Lady Jane in the first moments after her delivery, those who saw her at Rheims, conversed with her in England, and saw her in Scotland, both publicly and privately, did really and truly believe that the children were hers and her husband's. There is not a doubt but that the habit and repute would have been complete if it had not been sullied by those reports. This makes it necessary to inquire how these rumours were received. Who adopted any opinions upon such reports? I shall be told that Mr. White of Stockbriggs, Mr. Stuart, and several of the respondents adopted and believed them all for truth. Admitting all the evidence that the cause is burthened with on this head (and I have looked into the whole evidence the respondents have adopted to show the reality of these rumours and suspicions), taking the whole of this evidence together, I believe there are not less than twenty- three or twenty-four persons who speak to this particular. But I can venture to affirm, from my own observation, that about one-half of those, though they admit that such reports prevailed, yet they did declare at the sanie time that they did not believe one word of them. The remainder were not examined as to their belief. The respondents durst not put the question to them. This appearing in evidence, shall it be said, my lords, that such a calumny, spread for evil purposes and bad designs, which no person sincerely believed, shall be admitted to destroy the reputation of the birth, and turn a man out of the possession of his state? When I said that none believed these reports, I should have excepted Mr. Hamilton, who did believe the first story to the discredit of the birth. But this same Mr. Hamilton, upon being better informed, was perfectly convinced, and did believe, that the 153 The Douglas Cause, Urd children were hers. There is hardly one witness to be found so bold as to avow his belief of these reports. Such was the character of Lady Jane (and character, my lords, is an immense thing in cases of this kind), such was the goodwill bore her by all mankind, that the moment she appeared with her children in her hands all rumours disappeared ; there was not a whisper to their prejudice. She carried them publicly to the Assembly at Edinburgh, where they were received as her children. I do therefore fully conclude that the appellant's possession of state stands established by habit and repute. And your lordships will see it is a dangerous doctrine to say that the child who has been acknowledged from the day of his birth should lose the protection and advantage he is entitled to by such acknowledgment, by the false breath of calumny spread in the neighbourhood by interested persons for their own purpose. Upon this foundation it is, that I will submit to your lordships, that the habit and repute being sufficiently clear, the appellant is entitled to all the advantages this will afford him as to the onus probandiy and the whole, then, will amount to this : that if the appellant had put his cause altogether upon the acknowledgment of parents and upon habit and repute, in that case the law would have called for clear and positive evidence to have dispossessed him. But, as I said before, I question whether this argument will be very useful in managing the present proof, and that because the appellant has not relied entirely upon the protection arising from the acknowledgment of parents and from habit and repute. He has sallied out of this line. He has gone further ; he has undertaken to prove his mother's pregnancy and delivery; and having proceeded upon that ground, I apprehend it is now too late for the appellant to resort t© habit and repute, and to rest his defence upon this only. But still this may be laid down as a rule, that the appellant, fortified with the recognition of his parents, and with habit and repute, will be entitled, with these advantages, not only to call upon the other side for strong and direct proof to the contrary, but will be further entitled to every favourable presumption in support of his birthright. The respondents, on the other side, have no right to any favour whatever. The respondents say that in this case there is such a chain of evidence, such a train of circumstances, as are irresistible. 154 Speeches in the House of Lords. These they have worked together with such industry and skill Lord that the legal presumptions in favour of the appellant appear weak, and his claim is made to totter. The respondents have gone to positive and direct proof ; the appellant meets them with such : in God's name, as the armies are fairly drawn up, let us see on which side lies the strength of proof. I shall now, my lords, come directly to the merits of the cause. The facts under your lordships' consideration on both sides are briefly these — The appellant undertakes to prove Lady Jane's pregnancy, her delivery, her reconvalescence, and her subsequent mis- carriage at Rheims, together with all the other parts of the case that fall in their proper course, until the last dying ex- pressions of his father and mother. These are the branches of his proof, and of these he is to satisfy your lordships. The respondent, on the other side, says he will prove an alibi : that Lady Jane could not be delivered at Le Bruno's, because she was at Godefroi's at the time fixed for the de- livery. This is a positive fact your lordships must be en- tirely satisfied about. Another positive fact is, that Sir John and Lady Jane stole two children, one in July, 1748, another in November, 1749. These two are positive facts that must necessarily be proved. Much has been said and insisted on of what passed at Michelle's, of Lady Jane being in perfect health there, and a thousand other circumstances that have occurred in raking together the whole facts ; but I shall take no notice of many of them. In the first place, my lords, as to the pregnancy, this part of the case has been managed, in my apprehension, in a very singular manner. I observed, when I first read the respondents' memorial and heard the counsel at the bar, that this fact of the pregnancy was treated as being in its nature incapable of proof. They have endeavoured to draw off your lordships' attention from this part of the proof, and have attempted throughout the whole to treat the pregnancy as separate and distinct from the birth, and no wise connected with it. The Solicitor-General went so far as to postpone the pregnancy to the last part of his argument. The noble lord who spoke before me endeavoured to produce authorities to show that pregnancy was extremely difficult, if not incapable, of proof. It appeared upon the whole evidence that the respondents most anxiously desired an acquittal upon the article of preg- 155 The Douglas Cause. ft VM tha, mj loid^ tiMt lad mb im to wmipeei piBft : ifc iraA th» fn* put of tlM eMM tbttt to throv t^ pngBABcj wrt of ^m ci— . WbT dk- tkofaiitkt SumpooBOMbirtiritoolf mad ^ko t^oMe of H «oi so door ob oHf p«noii mj tiMt a ofeor proof of tke m «ko proof of 1^ birth! Mt tbo defireiy p i O Mi| yooo tho pngnoBcyf Are all of pngMOKf to bo MJn^htfd beta oo o oaeo m taa tiioaHBd, of tOMB, onoonMsoB mMj bo OBi it is boni^ poBiible IT bo a IbIbo oiMcep l io nt Is ttk mmj itium for joor loidriiipB to reject tbo of lhB|H«MM7f I ttaft a proof of aproof of MfOiv. dbat ttio artido vas of I am Kjaah* GvB ■» iBa^ to wmj tbai Abto Ib aoi obw ai^k to ^Empnw ifc. Wbai Ib H Ibaft tbo ro- icditbevpnBfoatUilHodf H Ibooo ^riio tnvclled Ladf Jaao ia a eoacb, w^ saw bar or oua ro ta Bd wiOt ber ia a p^tfe oaaapo^, or ^Ad kd^ m tbo an MPfcr odcnd bar dkairiMr, if afl tben did aot ■«M of piifcOBiy, wbat iB Oo iafaraMof Ibi o^ Oaft tbia Aooo Aero vaa aoi tmrn tbo appoanMo of SaawTf . Haw ia it poodblo tba^ hf tbat of Sb- GoBiS^ CMq^oM aad otbon. What | giroaf SkB ia am i j ipiiiiMUM l ladbf, wbo of ber ova; aho waa Mhaittwi to aa M7 viA Lady^ JaM» aiod I Aix ia Mkf. 1748 ; Ae vaa bi l&aft codi bo RMind of a Speeches in the House of Lords. am hadj Ja^s hdlj mn Ldidj Jane iw