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this occasion he produced, among his may occur-Whence could be derived documentary evidence, a copy of the the funds requisite for carrying on affidavit of Henry Hovenden, already these expensive—these extensive and referred to, and also of another by a complicated-operations, in different Sarah Lyners, dated the 17th January and distant parts of the world ? In 1722, of which more anon. Within the year 1829 the prisoner quitted a few months' time, again, he was on Worcester, reduced to great distress, the 2d July 1831 declared heir in the and came to London, where he estabNova Scotian and Canadian posses- lished himself in lodgings at the sions of the first earl!-a fact which a corner of Jermyn Street and Regent few days afterwards-namely on the Street. While there, again, as was 12th July ensuing-ho formally com- reluctantly testified by a witness at municated to the public authorities the trial,+ he was “in great distress there, and inhabitants, by way of for money,-unable to pay for his proclamation,* in terms almost befit- lodgings-and he acknowledged that ting a sovereign newly restored to his he had left his butcher's bill at Wordominions! While thus intrepidly cester unpaid, and that his family urging on his way in the law courts were in great distress there." Such, of Scotland, he seized every oppor- however, were the results of bis contunity of personally exercising the fident and enterprising energy-such rights of the peerage. On the 2d the reliance placed on his representaSeptember 1830, he voted (under tions of success, in enforcing his claims protest made by the Earl of Rosebery, in America and the eclat which he but not seconded) at the election of derived from frequently and publicly representative peers at Holyrood; asserting and exercising the rights of again on the 3d June 1831, but under the peerage—that in about eighteen a protest formally entered by the months' time he actually succeeded in Duke of Buccleuch and Lord Lauder- raising from one agent alone, on the dale. On the 29th August 1831, he faith of his prospects, no less a sam, petitioned for leave to do homage at though at enormous rates of interest, the coronation, as bereditary-lieuthan £13,000. He now brought up tenant of Nova Scotia ! - created his family to town, established them several baronets in right of such in fashionable quarters, and lived exlieutenancy, one of whom was his pensively ; and also opened an offico agent Mr Banks, to whom he also in Parliament Street, whence he assigned 16,000 acres of land in issued advertisements for the sale of Nova Scotia, but who resigned the territories in Canada, and debentures rank after his quarrel with the pri- on his American possessions ! soner in 1834-5; and finally, on the Let us now, however, inspect the 25th January 1838, positively for machinery by which he originally prowarded to Lord Melbourne a solemn posed and attempted to raise himself protest, as hereditary-lieutenant of from comparative social obscurity to lier Majesty in the provinces of Nova distinction, from extreme poverty to Scotia, (including New Brunswick,) vast wealth, to ally himself to aristoand Upper and Lower Canada, against cracy, and indeed become one of its the appointment of the late Earl of prominent members. Durham as Governor-General of the The proposition which he undertook colony! That this was at all events to prove, as has been seen, was, that a bold and decisive line of operations, he was the great-great-great-grandson apparently indicating supreme confi- of the first Earl of Stirling. We shall dence in the validity of his preten. now place before our readers so much sions, no one will doubt; and it only of the various pedigrees as is nerenders deeply interesting the inquiry cessary to trace, and render interesting on which we are about to enter. In to follow, the operations attributed to the mean time, however, a question the prisoner :
Here, it will be observed, we have at no dist'. period pass to a collateral three Henrys, in immediate succession, branch of his family, RESIGNED his Earls of Stirling, and three Johns; titles and estates into the king's which Henrys and Johns were respec- hands; who, by a charter under the tively and successively brothers, first great seal, bearing date the 7th Dec. cousins, and second cousins; and one 1639, (i.e. two months only before the naturally asks, Why did not John (No. earl's death,) conferred them DE NOVO S, the claimant's grandfather, at once [' de novo dedit'] upon him and the take up the earldom, on the death, heirs-male of his bodye: which failing without issue, of his second cousin, (the whole case hinges on this clause] Henry the fifth earl, whom he sur- to ye ELDEST HEIRS-FEMALE WITHOUT vived four years ? A second obser- DIVISION OF THE LAST OF SUCH vation arising on the above pedigree HEIRS-MALE hereafter succeeding to is, that the claimant derives title the titles, honours, and dignities aforethrough a female descent-Hannah, said, and to the HEIRS-MALE to be his mother, claiming to do so by means procreated of the bodys of such heirsof the irrecoverable but sweeping char- female." of "Note"-continued Mr ter of Novodamus. The reader will Gordon—"I have not met with this bear in mind that there are, as we charter in our publick records ; but have already seen,* two patents of from a marginal reference to ye 57 nobility to the Stirling family, respec- volume of ye Regr. of the Ge. Seal, tively dated the 4th September 1630, wh. I noticed wbile I was taking ye and the 14th June 1633, giving the foregoing clause of limitation from Mr titles, first of Viscount, then of Earl, James Hay's transcript, I am led to “to him and his HEIRS-MALE for conclude that ye chartre was entered ever, bearing the name and arms of in a part of that vol. where several Alexander." To establish his right leaves are now awanting. Be my conunder these patents, the prisoner mustjecture true or false, little importeth, of course have proved that he was however, since the original charter is heir-male of the first Earl of Stirling. at this time (14th January 1723] in
That would have been a matter of ye possession of Thos. Conyers, Esqe. mere pedigree-showing himself the of Catherclaigh, in ye kingdom of last of an unbroken succession of Ireland, who will no doubt let yon males. But the prisoner set up a case have inspection thereof, and, for aught of a totally different nature-in a we know, may further be willing to word, that the first earl“ being," to give it up to you, as it can be of no quote from a "statement of William use to him." On the back of this Gordon," hereafter referred to, "under document, in the handwriting of "the great dejection of spirit, after losing Reverend John Alexander," was found thrce of his sons, who had given him “No. 3, from Mr W. Gordon, Edinb. the brightest hopes ; and fearing, from 14 Jan'. 1723. Recd. 27th." And at the declining state of health of two of the foot of the “Statement" is the ye survivors, that his honours might following “Attestation":-“I have
compared the limitations copyed on the pursuer (the prisoner) in all cases, the other side in English by Mr Wil causes, and questions whatsoever, as liam Gordon, with those conta. in the the original charter of Novodamus, original charter of the 7th Dec. 1639, if extant and found, would be, notat present in my keeping; and for Mr withstanding the same has been lost Alexander's satisfaction, I do hereby and is amissing, and cannot now be certifye that the said Wm. Gordon has discovered."* given a true and faithful translation After setting out at length the of the clause by which the estates and various original and undoubted patitles of Lord Stirling are limited in tents of nobility and charters to the the aforesaid charter, and descend to first Earl of Stirling, the “summons" the heirs therein mentioned. Witness proceeded to recite his resignation, my hand, this 10th day of July 1723. for a re-grant, of his titles and Thomas Conyers." Thus the pri- honours, and the new charter of soner's case was, to prove the exist. Novodamus, accordingly, of the 7th ence of this all-important charter of December 1639, with the new limita“ Novodamus," as it was called, tions. These stated the successive operating so great a change in the descents of the title to the fifth Earl, destination of the honours of the Stir- who died without issue ; after which, ling family; and then that he, by his substantially the following curious descent, satisfied its conditions. But narrative was given, and which is this original charter itself, he declared well worthy of attentive considerafrom the first, was not forthcoming; tion, as affording a key to much of and not only was it lost or destroyed, what follows. The Reverend John but also the official record of it in the Alexander, the grandfather of the Register of the Great Seal; and his prisoner, (John No. 3,) being at this reliance was placed on the next best time heir-presumptive to the earldom, procurable evidence of its existence, proceeded, in the year 1722, to colafforded (after proof of the loss or the lect the evidence of his right of sucdestruction of the original) by authen- cession. This, it will be observed, tic quotations from its essential pro- was after his second cousin, the last visions, by the persons who had made earl, had enjoyed the peerage and such quotations from the original, but estates for thirty-two years-doubtabove all by the famous EXCERPT of less without having alive, at that time, the charter, so fortunately discovered any issue to succeed him; which is in Ireland by Mr Banks. What clear, obviously intended to account for the cogent, conclusive evidence, however, heir-presumptive being then on the was requisite to establish such facts! look-out after his own rights. One and what courageous confidence must should have thought, however, reverthe have had in the merits of his case, ing to the state of the pedigree alwho undertook to dare the lynx-eyed ready given, that all was simple and scrutiny to which his “proofs" would straightforward enough, as in an orbe inevitably exposed !
dinary case of succession to a peerage. Divested of all technicalities and But the reverend grandfather of the superfluous statements, the following prisoner is represented to have taken is the first public formal account of some peculiar steps in 1722. He emthe matter given by the prisoner, in ployed an Edinburgh expert in genethe former of the two actions already alogy—the Mr William Gordon, of alluded to, brought by him in 1829 to whom we have already heard — to establish or “prove the tenor" of the "collect the evidence of the rights of original charter. His prayer was, succession, and draw out a statement “That it might be declared and de- of the descent." Mr Gordon set cerned that the charter was in form about his task; and early in 1723 following, (setting it out in the ori. transmitted to his employer a translaginal Latin--and pretty Latinity it is tion of the limitations in the charter
according to the excerpts,) and that of Novodamus, of the 9th December such decree' should be in all respects 1639, made, however, from only a copy as valid and effectual a document to of it; stating that the original was in
* Swinton, Appendix, pp. vii. viii.
the hands of a Mr THOMAS Con- that " among them were a number of YERS, Master extraordinary in Chan- large parchments," and that, though cery in Ireland. On this, the heir- diligent search had been made for presumptive employed an Irish pro- them, none could then be found or heard fessional man, skilled in such matters of. The claimant next averred that -a Mr Hovenden-to make further the original charter had been duly inquiry in Ireland. He went, ac- registered in the Register of the Great cordingly, to this Mr Thomas Con- Seal, at Edinburgh, but that the reyers on the 10th July 1723, who al cord of it “had perished or disaplowed him to see the precious original peared" in consequence of the loss-a charter, which he “ most minutely matter of public notoriety-of a part examined," and found to agree with of the Register, as had been officially the account of it which had been sup- testified by the Lords of Council and plied to him by Mr Gordon. The Session to the House of Lords, on the heir-presumptive (John No. 3) after- 27th February 1760. For these wards succeeded in getting possession reasons, “it was necessary, in order of this same original charter, which, to supply the place of the said charon his death in 1743, came into the ter of Novodamus, that THE TENOR of hands of his widow, who shortly after it should be proved," as prayed for ;t wards went to England, and settled that the claimant " was possessed of at Birmingham. About the year AN ABRIDGED COPY OR ABSTRACT of 1758, however, (that is, nineteen the said charter," which could be proyears after the death of the fifth earl, duced in Court with the summons ; and fifteen years after the death of that such copy or abstract was her husband) the Reverend John authenticated by the said Thomas Alexander - according to the pri- Conyers, who had the original soner's case-must have been for charter in his keeping ; and the same, four years de jure the sixth earl, and and other documents offered, are sufdied such! This invaluable charter, ficient evidence for proving the existthe foundation of the family honours, ence and tenor of the said charter." having been very carefully and It may be here as well to give some secretly kept by the de jure countess, notion of what is called in Scotland was feloniously stolen from her by a charter of “Novodamus," and one of her servants, who had been which we find, in our limited knowbribed to do so by the William Alex- ledge of the subject, some difficulty in ander of America, who was then lay- squaring precisely, in point of characing claim to the title.* This gentle. ter, with the tenor of the instrument man having thus obtained possession put forward as such by the prisoner, of it, entered into an agreement of as indicated in a former page. I A partition of the family estates with charter of Novodamus does not, in two nephews of the fifth earl living in spite of its name, necessarily imply England, obtained the charter from the existence of a former charter, but their hands, and thereupon assumed may be equally an original or a rethe title, and, after a time, either newed grant-everything comprised suppressed or destroyed the charter! by it is held to be effectually conThe claimant (the prisoner) had pub- veyed to the donee, though he may licly advertised and offered a reward have had no antecedent title to it. for the discovery of the missing char- The true nature of the charter of ter, but in vain; and, as a forlorn Novodamus, however, is, when the hope, caused inquiries to be made in superior-whether the Crown or a America, among the persons into subject--really re-grants the matters whose hands the papers, &c., of the therein contained, to remedy any deaforesaid Mr William Alexander had fect or flaw in the former grant ; or come in the year 1806. These per where the grantee seeks to avoid bursons swore (in America) that all his thens chargeable in respect of casualpapers had been “sent to auction en ties—i.e., emoluments fallen due to masse," prior to the year 1812, and the superior. It may be well to
I Ante, p. 473. $ Erskine's Institutes, book ji. title ii. & 23.
* Ante, p. 469. + Ante, p. 471.
bear in mind this attempted explana. prisoner brought forward, in sup. tion, when hereafter adverting to one port of his claim, several witnesses, or two clauses in the famous “Ex- as well as documentary evidence, cerpt-charter of Novodamus." When among which were the affidavits of the fact is adverted to of the prisoner Henry Hovenden aforementioned, and having, as long before as the years one Sara Lyner; but the celebrated 1815 or 1816, consulted Mr Corrie, “ excerpt" baving, as we have seen, his family solicitor-& respectable been twice rejected by the Courts in professional man, who, as we have former proceedings, did not make its seen, had been the confidential ad- appearance in this new and serious viser and trustee of the prisoner's stage of the proceedings. It appears father-on the subject of his claim to have been a very protracted into the earldom, and then acknow- quiry--three years having elapsed ledged to him that “ he had no docu. between the commencement of it in ments, or no effectual documents, to January 1833, and the delivery of support his claims;" and that it was the Lord Ordinary's (Cockburn) internot till ten or eleven years afterwards locutory judgment, at the close of that we have any trace of his move. December 1836. ments or proceedings; when, in 1826, The object of the prisoner in that he produced the affidavit of Hoven - inquiry was to prove the pedigree, as den, the statement of Gordon, and it appears in a previous page-that the certificate of Conyers, and, three is, to connect the three John Alexanyears afterwards, the memorable ders there set forth, in the relation* excerpt" charter, of which he had ship of father, son, and grandson ; heard for the first time from Mr and the object of his opponents, of Banks in March 1829—when all this course, was to disprove such relationis borne in mind together, the above ship. Judging solely from the manarrative affords matter for curious terials placed before us by Mr Swinspeculation, especially as to the state ton, and not familiar with the details of facts existing in 1815, and the de- of Scotch legal proceedings, we are velopments of the ensuing ten years. astonished at the time taken to deWe must, however, hasten on. molish the most flimsy structure of
The Crown lawyers were at length pedigree proof we ever remember to startled by the persevering energy, have seen-always excepting in the system, and success, which charac- droll page of the novelist. In the terised and attended the movements English courts, half a day would have of the prisoner, and the results to sufficed for the purpose. Nay, we which they were leading. In the question whether any member of the year 1833, therefore, they resolved to Bar, with any legal reputation to lose undertake the task of demolishing the or endanger, would have seriously entire fabric of his proofs ; and, on offered, or at least pressed on a judge the 15th of January, in that year, and jury, such evidence as was tencommenced formidable proceedings, dered, and long and solemnly candenominated as those of i Reductive vassed, by the Scottish Courts in this Improbation," having for their object instance: we are speaking, of course, to obtain a solemn judicial declara without the advantage of having the tion that everything done by the full proceedings before us. Yet we prisoner, in the prosecution of his are bound to say that the judgment claim, was null and void, and, as pronounced by the Lord Ordinaryt is such, should be rescinded and annulled; exceedingly able and convincing, and that his vouchers were fabricated, and characterised by a courteous and dig. that he was not the great-great-great- nified gravity, pregnant with indicagrandson of the first Earl of Stirling, tions of suppressed severity of comand had no pretensions to assume the ment on the audacity which could name or title, or exercise the rights have offered such materials for judiappertaining to it. Thus, at length cial exposition. The case stood challenged to mortal encounter, the briefly thus, according to the import