been by means of Young Glengary: this you may believe I am at no great
pains to desuade him from, as the greater Enmity gives the better chance
of your coming at truth. He does not deny but that his brother, (Angus)
Lochgary, Young Glengary, Angus Mc.Ian and he went into Badenoch in the
winter 1749, after the Troops were gone from thence, with a view of
meeting Clunie, but that while Lochgary, and young Glengary had their
Interview at a sheiling opposite to Dalwhinnie, he was desired by Clunie
to keep at the House of Dalwhinnie till sent for; and that neither Angus
nor he coud be allowd to speak with him, tho he sent repeated messages
by Clunie’s Piper, and a young Brother of Clunie’s. That he lay in the
same Room with Young Glengary at Dalwhinnie, and early in the morning,
the young Brother of Clunie brought Glengary a Bag which might contain
two or three Hundred guineas, and counted them out to him, and that he
understood Glengary got, in the whole, by that expedition about Two
Thousand;[96] he farther says that the money remitted abroad by Cluny
was carried away by his Brother in Law Mc.Pherson of Brechachie to Major
Kennedy in the North of England....’ (So Gask also says.)
On October 31, Crawfurd again writes to Churchill. He had recommended on
October 21, that Angus Cameron ‘should be allowed the quiet enjoyment
of his treasure.’ He now remarks that Glenevis has been admitted to
bail. ‘He says, in the Scotch phrase, that _it is hard, to have both the
skaith and the scorn_’—that is, to be molested, though he has not got
much of the French gold. ‘He blames his brother Angus for having acted
a weak and foolish part in quitting (parting) with so great a share of
the money that had fallen into his hands, which, he says, did not exceed
£2,500, tho’ most people call it £3,000, and of which he knew his brother
had paid £1,000 for the use of Lochiel soon after his going to France’
(1746). Next we find a repetition of Glenevis’s charges against Young
Glengarry, as his betrayer. The accusation, too, that Young Glengarry
forged King James’s name (alluded to by James in a letter to the Prince,
March 17, 1750, as a story reported by Archy Cameron) is urged by
Glenevis.
‘He (Glenevis) still continues full of resentment against Young Glengary,
believing that he is the Author of all the information against him and
his Brother Angus, not being able to account for our knowledge of the
Badenoch meeting in any other way. He confirms what I wrote of the young
Gentleman in my last, only that the £2,000 was not of Clunie’s money, but
of what was left by the Secretary Murray in the hands of Mr. Mc.Douel
his brother in Law, and that his credentials for receiving the money was
from the old Pretender, _but that he was sure they were forged_.’ They
certainly _were_ forged.
One thing is to be observed about Glenevis’s doubts of Young Glengarry.
In this year, 1751, and onwards, that hero was allowed by Government to
live in London, in Beaufort Buildings, Strand, whence he communicated
with Charles and James, as a strenuous Jacobite agent. His letters are
printed by Browne from the Stuart MSS. Yet Government, if only from
Glenevis’s evidence just given, knew that Glengarry was at least as
guilty as Glenevis and his brother of the only crime charged against them
on this occasion—namely, dealing with French gold that had been landed
for the use of Prince Charles. Where the treason to King George came in,
unless they were using the money for Jacobite purposes, or depriving his
Majesty of spoils of war, or of treasure trove, does not appear. Yet
the Camerons, Glenevis, Dunan, Fassifern, were all kept in durance at
Port William, while Young Glengarry, implicated in their vague offence,
was permitted to live, and even to make love, in London. To this point
we return later (p. 207). Government had their own reasons for sparing
Glengarry, while punishing his accomplices. These accomplices, again,
averred that Glengarry had ‘peached’ upon them, as doubtless he had. The
Camerons were released, but before very long, they and Fassifern were
all imprisoned again in Edinburgh Castle, on a charge of treasonable
dealings with the attainted. This was part of a plan of Government’s for
‘uprooting’ Fassifern, who represented the exiled Young Lochiel in the
eyes of the Clan. The action of Government makes another chapter in the
history of the sufferings after Culloden. Meanwhile the casks of louis
d’or had done their task, and sown among the Clans the dragon’s teeth
of distrust and of calumny. We cannot tell where the remainder of the
gold went, though Cluny probably took what was left over to France, in
1754, as Charles commanded him to do, getting no more for his trouble,
perhaps, than did poor Duncan Cameron in Strontian—‘not a shilling.’ As
for Glenevis and his brother, they seem to have finally been fobbed off
with the skaith and the scorn, and with very little else but the company
of Colonel Crawfurd, so anxious to talk about their hay crop.
Such is an example of Highland life after Culloden. There are midnight
meetings at lonely sheilings, there is digging and delving by hands that
knew the claymore better than the spade. Letters are opened in the post
office, secret murmurs fly about carrying charges of indefinite guilt,
reported by unknown spies. No man can put confidence in another: each
neighbour _may_ have been bullied or bribed into babbling, and, when
the laird sees the English colonel saunter along the avenue, Highland
hospitality struggles in his heart with a natural inclination to drop
out of a back window, and steal up the glen into the hills. A gentleman
is apt to be less often on his estates than in Fort William prison or in
Edinburgh Castle. No wonder that many joined the new Highland regiments
when they were raised, and preferred King George’s pay to domiciliary
visits from King George’s colonels!
VIII
JUSTICE AFTER CULLODEN
_The Uprooting of Fassifern_
The years 1752-1754 were full of trouble for Highlanders. The Prince was
intriguing desperately with Scotland, and with Prussia. The Elibank Plot
was matured and betrayed. Dr. Cameron and Lochgarry were stirring up
the Clans. Cluny remained as untakable as Abd-el-Kader. The Government
were alarmed at once by Pickle, by their ambassadors abroad, and by
Count Kaunitz. The Forfeited Estates had been nationalised, ‘for the
improvement of the Highlands,’ factors had been appointed to raise and
collect rents: evictions were threatened; agrarian discontent had been
aroused; Campbell of Glenure had been shot in the wood of Lettermore.[97]
The reports of all these things flew from township to township, from
strath to strath, as fleetly as the fiery cross. The Highlands, in 1752,
were boiling like a caldron. Old tenants were being turned out that men
of a hostile Whiggish clan might occupy their hereditary holdings.
Ensign Small, an officer who knew Gaelic, and was engaged in secret
service, found murmurs of a rising even in the Islands. The Duke of
Newcastle was jotting down alarmed notes, ‘to be at any expense in order
to find out where the Young Pretender is. Lord Anson to have Fregates
upon the Scotch and Irish coast.’[98]
The consequence of this official flutter was a crowd of arrests and
trials. James Stewart, on a charge of being accessory to Glenure’s
slaying, was, to speak plain words, judicially murdered. He was confined
in Fort William, and denied access to his advisers; the charges and
evidence against him were kept from him till too late, he had a jury of
hostile Campbells at Inveraray, the Duke on the bench, and he was hanged
as accessory to a murder in which the alleged principal was not before
the Court. Political necessities and clan hatred killed James Stewart
(1752).
In 1753 Dr. Cameron was caught, and hanged in London, denouncing as
informer his kinsman, Samuel Cameron. The famed Sergeant Mohr Cameron
was taken (by treachery, General Stuart hints and tradition proclaims;
both are right), and he ‘died for the law.’ His alleged crime was cattle
theft, but, as a sergeant in French service, he was probably regarded as
a Jacobite agent. The Sergeant was captured in mid-April, 1753: a few
days later Angus Cameron, brother of Glenevis, was taken at the same
place, his house of Dunan or Downan, in Rannoch. On May 6 Fassifern,
Charles Stewart, writer in Banavie, Fassifern’s agent, and Glenevis,
were lodged, with Angus Cameron, in Edinburgh Castle. On July 7 Young
Barisdale, Young Morar, and others, were culled like flowers at Lochourn,
while Young John Macdonnell, ‘Spanish John,’ was also arrested.
Of all these, the most important prisoner was Fassifern. He had been
taken, as we saw, in October 1751, and released, as nothing could be
found against him in the affair of the Cluny Treasure. He was Lochiel’s
brother and representative, and consequently chief, for the time, of the
Camerons. He had not been out in Forty-five. A man of commerce, a burgess
of Glasgow, he had tried to dissuade Lochiel from exposing himself to the
dangerous charm of the Prince. But he was naturally anxious to save as
much as possible of Lochiel’s estate for the family. There were several
lawful claims on it, which Government was bound to respect and he to
press. Moreover he, with ‘Glenevegh’ (Glenevis), had been denounced
by Pickle as agents between the Southern and Northern Jacobites.[99]
In addition to all this, Fassifern was trying to keep the old Cameron
tenants, Jacobites, in their holdings, and evict tenants who had the bad
taste to be Whigs.
As early as May 1751 he had been denounced for these offences by Captains
Johnston and Mylne, of the Buffs, in garrison at Inversnaid. ‘He falls
on ways,’ writes an informer whose letter they forward, ‘of turning out
any from their possessions, who he knows to be well affected to His
Majesty.’ He encourages Jacobites to settle near the forts, for the
purpose of a sudden assault.[100] He has ‘plenty of the Pretender’s
money’ to use for these purposes. Clan sentiment, not Jacobitism, may
have influenced Fassifern, and Glenevis, at least, was hardly the man to
play the part of Jacobite agent.
The original charge against Fassifern in May 1753 was that of
‘correspondence with persons attainted.’ But the game of the Government
was to get rid of him on any pretext. Colonel Crawfurd had come from Fort
William to Edinburgh, and, on June 4, 1753, wrote a long letter to the
Lord Justice Clerk. ‘The uprooting of Fassifern,’ he says, with candour,
‘is what we ought chiefly to have in view.’[101] He has found witnesses,
or rather has heard of them (it seems kinder to omit the names of these
gentlemen), who avow that Fassifern tampered with them to threaten
the late Glenure’s wife, and to murder Glenure. That unlucky man was
factor for Lochiel’s as well as for Ardsheil’s forfeited estate, and was
expected to evict Cameron tenants. ‘The Lord Advocate said that, if this
did not hang Fassiefairn, it would at least send him to Nova Scotia.’
Perhaps, the Colonel thinks, Breakachie may be induced to inform against
Fassifern! That culprit has only sent 100_l._ to Lochiel’s family in
France, and has made Lochiel’s tenants work on his estate, instead of on
the county roads.
These last were not hanging matters. And, somehow, Breakachie, a
perfectly loyal gentleman, and kinsman of Cluny’s, did not give the
desired information. The witnesses as to the suborning of Glenure’s
murder by Fassifern would not kiss the book, or, perhaps, had never
promised their evidence at all. Angus Cameron and Glenevis were
discharged on bail, on July 3. No proof of treasonable correspondence,
or suborned murder, or anything else existed, or could be found
against Fassifern. Pickle, of course, could not be produced in Court.
The Colonel does not conceal the discomfort of his reflections, and
Government is perplexed as to the details of the process of ‘uprooting’
the representative of Lochiel. On June 10 Fassifern and Charles Stewart
petitioned that they might be put on their trial. But what were they to
be tried for? It was an awkward situation.
The resources of civilisation, however, were not exhausted. On August 6
the Duke of Argyll came to Edinburgh and, next day, took his seat in the
Court of Session.
That day the Lord Advocate sprang a fresh charge on the accused.
They might not have been holding treasonable correspondence, or even
suborning murder, but they had been mixed up in—forgery! The Lord
Advocate suspected that certain deeds had been forged, to substantiate
claims made by Fassifern on Lochiel’s estate. These claims rested on
old papers and bonds of various dates, from 1713 to 1748. There was
‘credible information’ (how obtained we shall learn) that five of these
deeds were forged. Fassifern’s lawyer, Mr. Macfarlane (husband of pretty
Mrs. Macfarlane who shot the Captain), had no longer the vouchers, the
original papers from which he drew up the claims. These vouchers had been
in a bag at Mr. Macfarlane’s house; but ‘some time in Summer’ (1752)
Fassifern (being in Edinburgh) had sent for the bag, and had returned it
in a few hours.
The papers were no longer in it. Fassifern, being examined, could
remember having abstracted no such deeds as interested the Court. Next
day Fassifern asked for a copy of his statement, ‘as he was apprehensive
he might have inadvertently fallen into some mistakes in the hurry of
the examination, which he was extremely desirous to rectify.’ The Lords
refused his petition: he might have a copy of his examination ‘when he
is brought upon trial.’ Next day he was charged with being guilty, or
‘art and part in forging the deeds, or of using them, knowing them to be
forged.’ He was to be detained in prison till his trial.
He protested that he had already lain in prison for three months, on
a charge (Pickle’s) of ‘being privy to unlawful designs carried on by
disaffected persons’—namely, a rising to follow on the kidnapping of
the Royal Family. He ‘has reason to believe that no such prosecution
is seriously intended,’ which is pretty obvious, Pickle not being
producible, but absent, at that very hour, in France, with Prince
Charles! Moreover Fassifern was not told on whose information he was
examined, though he was ‘heckled’ for several hours.
The charge of forgery was, in fact, based, as usual, on the evidence of
an Informer, whom we need not name. Here is a report of his accusations:—
‘... Says he has been certainly informed that Fassfarn caused Forge
several Grounds of Debt, in Order to be the Foundation of Claims upon the
Estate of Lochiel, some of which were written by Charles Stewart present
prisoner in the Castle, and Lochiel’s name was Forged by one Allan
Cameron of Landavrae, who could write like him, and there were Forced
Discharges by Lochiel to his Tenants for Crops in 1746 and Proceedings in
Order to prevent the Government from getting payment of the Rent of 1746
and arrears.’
Says on knowing this he ‘instantly told Crawfurd’!
Now even the Government’s plea against Fassifern says no word of ‘forged
discharges of Lochiel to his tenants!’[102]
The interest of this case is partly the mystery—had Fassifern really
been concerned in tampering with documents?—partly the procedure, which
we know had political motives, and was iniquitous in method. As to
Fassifern’s guilt, if any, we are not likely to learn the truth; as to
the kind of justice he got—there can only be one opinion.
On August 10 Fassifern was ‘ordained’ to receive a full copy of his
examination. He was anxious that the evidence of an aged solicitor,
Alexander Stewart, in Appin, a man over eighty, and unable to travel,
should be taken by commission. This Stewart had written, or witnessed,
several of the old disputed deeds, and was the only person alive able
to testify, of his own knowledge, to their authenticity. Fassifern also
remonstrated against being described, in the Lord Advocate’s charge,
as ‘the immediate younger brother of Donald Cameron, late of Lochiel,
attainted.’ He ‘ventures to hope that this is not meant to make a point
of dittay.’ It was obviously meant to suggest prejudice. He asked for
bail, after his already long imprisonment. Bail was refused by the Lords
of Session, nor would they examine Alexander Stewart by commission;
but they promised to remove Fassifern from the Castle to the Tolbooth.
The full charges, or ‘improbatory articles’ against him, he was not to
receive.
On August 24 the prisoner once more protested against ‘the practice of
dropping out charges one after the other,’ which unpleasantly resembles
the system of Titus Oates. If the Government, as appears certain, had
this accusation of forgery pigeon-holed before they locked up the
prisoner in May, why did they not bring it forward at first? Fassifern’s
imprisonment, he justly remarks, ‘approaches to a kind of torture.’ He is
denied the free use of pen and ink, so necessary in his preparation of a
defence. An armed sentinel is in his room day and night. This petition
was so far successful that pen and ink were given, but what he wrote was
inspected, and even his lawyer’s chief clerk, Mr. Flockhart, could only
visit him by special license. He was allowed to take the air, under a
guard, but he seems to have been detained in the Castle, at least the
Deputy-Governor is charged to remove the armed sentinel.
In January 1754 articles of accusation were placed before the Lords of
Session, and witnesses were examined, including old Alexander Stewart,
who was brought from Appin ‘in a chaise.’ He attested that, as early as
1713, he had written and witnessed some of the deeds, and again in 1728.
Appin (whom one of the deeds especially concerned) gave evidence as to
the authenticity of others, and quoted Lochiel’s remarks to him, in 1746,
about 1,000_l._ borrowed from Fassifern in 1741, and a bond given for the
money by himself. He averred that Charles Stewart, writer in Banavie,
accused now of forging that instrument, had really written and witnessed
it, with Torcastle (in exile) and others (Culchenna and Lundavra), now
dead. On these grounds Fassifern petitioned for bail. He had lain in
prison for ten months, and his eyes were so impaired that he could not
see to read. He must sink _sub squalore carceris_, and be ‘uprooted’ in
earnest.
To all this plea it was replied ‘that many persons, even of those who
would not do injustice in private affairs, are too easily induced to
countenance an injustice done to the public’—that is, by getting public
money out of the forfeited estates. Fassifern, with his ‘connections and
influence, might, if at liberty, use means to prevent discoveries.’ There
is thus one law (an unpleasant law) for the rich, and another for the
poor. Finally Fassifern’s ‘coolness and silence on the loss of papers
of such consequence, notwithstanding his being confessedly a sensible
careful man, were mentioned as very suspicious circumstances.’
No doubt they _are_ suspicious, but that a ‘sensible careful man,’ of
the best family, should, as charged, forge a bond of 90_l._ from his
own gardener, still in his service, is also a very improbable kind of
accusation. Fassifern and Charles Stewart were, therefore, left _sub
squalore carceris_ (March 6, 1754).
In August 1754 they again petitioned for bail. They had lain in gaol for
fifteen months on no capital charge. ‘There is not one of the deeds under
challenge that does not seem to be supported by unimpeachable evidence,’
as of Appin, a man of honour, and old Alexander Stewart. ‘They have
suffered punishment beyond bounds already, without example, and since The
Happy Revolution, neither heard of nor dreamed of in our neighbouring
country,’ England.
Bail was not granted, and the Lord Advocate told a very extraordinary
and, it may be said, inconsistent tale. His witnesses, he alleged, ‘have
thought fit to stand a second diligence for compelling them to appear,
and, though wrote to, have not given any answer.’ Of course there may
be two interpretations of this reluctance, or even three. The witnesses
may be coerced by local sentiment, or may not care to take oath to their
evidence, or may have reason to suppose that they are not really wanted,
as the Crown manifestly merely wishes to keep Fassifern out of his
own country. The evidence of one informer has been given as to forged
discharges of Lochiel’s. The Government, however, dropped that slander,
while keeping up other charges, not supported by evidence given in Court.
The Advocate then carries back the origin of the trouble to the Loch
Arkaig treasure. In some quarrel about this, a person was ‘heard to
declare, that, in self defence, he would make known to persons in the
King’s service what he knew, or had learned, concerning forged deeds
prepared by Fassfern and Charles Stewart.’ This information he actually
gave to Colonel Crawfurd. This was certainly one of the witnesses who
would not answer to his subpœna, or come to the trial in spite of
repeated ‘diligences.’ Lochaber was not likely to be a happy home for
him afterwards; _Lochaber no more!_ would probably be the burden of his
song. Even Glenevis had three shots fired at him, in November 1752,
between Fort William and his own house. So he alleges in a memorial, or
petition, in the State Papers. The Colonel then sent for Charles Stewart,
who had been introduced to him as a fit person for managing prosecutions
against wearers of the philabeg. Charles Stewart, before the arrest of
Fassifern, gave Colonel Crawfurd, at Fort William, a written set of
Remarks on Fassifern’s claims, impeaching the authenticity of those to
which Appin and Charles Stewart had sworn, including the gardener’s
90_l._ But Charles Stewart, when examined before the Lords, withdrew all
this, and vowed that he had already denied it to the Colonel. When shown
the written statement, he acknowledged that it was in his hand, but that
he had written it ‘to pacify the Colonel, who was then in a great rage.’
For, in early summer, 1752, ‘a very hot inquiry was going on touching
the murder of Glenure.’ Relations of Charles Stewart were imprisoned,
and Colonel Crawfurd, interrogating Charles on the claims of Fassifern,
told him that _he_, Charles, ‘was suspected of some accession to
Glenure’s murder, and was to be imprisoned if he did not speak out, and
make discoveries against the claims upon Lochiel’s forfeiture.’ Charles
‘cannot affirm’ that he did _not_ ‘soothe Col. Crawfurd, who appeared to
be in great passion,’ by telling tales against the claims, but rather
suspects that he did. But, if he did, he admits that he lied, ‘in the
confusion and terror he was then in.’ So far, the evidence before the
Court is that of a witness who declines to be sworn, and of a prisoner
who withdraws testimony extorted by threats.
The Lord Advocate next quoted a letter to Fassifern, from his Edinburgh
agent, Mr. Macfarlane, of December 1751—that is, shortly after
Fassifern’s release in the affair of the treasure. Mr. Macfarlane
obscurely warns him in this letter ‘not to be carried, for the sake of a
small paultry sum of money into difficulties.’ ‘Mines were to be sprung,’
‘odd appellations are given,’ phrases which may, or may not, refer to the
business of the French gold.
The Advocate then told how Fassifern, in summer, 1752, a year before his
arrest in 1753, got his bag of papers from Mr. Macfarlane and returned
it, since when no mortal has seen the incriminated deeds. This, of
course, is the crucial point; but Mr. Macfarlane had himself prepared
Fassifern’s claim from the very deeds which, having disappeared, are now
said to have been recently forged. Mr. Macfarlane can have seen nothing
suspicious in them, or he would not have made them the basis of a claim
drawn up by himself. His suspicions of 1751 would have revived, and he
would have abandoned the case. He still acts daily for Fassifern, but
Fassifern has not recovered the documents, nor tried seriously to recover
them.
On these grounds bail was again refused.
No decision was arrived at by the Lords of Session till January 1755. By
that time all danger from Jacobitism was over. Charles was deserted by
Prussia, by the Earl Marischal, and by his English adherents. The Lords
found Fassifern guilty of abstracting his own papers, from the bag in Mr.
Macfarlane’s custody. These papers it was inferred, were forged. He was
sentenced to ten years of banishment, which he passed at Alnwick. Charles
Stewart was deprived of his office of notary public. ‘Some of the Lords
were of opinion that there was not a proof of guilt sufficient to infer
any punishment. But others were of a different opinion.’ In Fassifern’s
plea he complained of Colonel Crawfurd’s frequent examinations of Charles
Stewart, and of a present of 10_l._ made by him to that notary.