by Walter Scott
CHAPTER TWENTY-SECOND.
Most righteous judge! a sentence.--Come, prepare. Merchant of Venice.
It is by no means my intention to describe minutely the forms of aScottish criminal trial, nor am I sure that I could draw up an account sointelligible and accurate as to abide the criticism of the gentlemen ofthe long robe. It is enough to say that the jury was impanelled, and thecase proceeded. The prisoner was again required to plead to the charge,and she again replied, "Not Guilty," in the same heart-thrilling tone asbefore.
The crown counsel then called two or three female witnesses, by whosetestimony it was established, that Effie's situation had been remarked bythem, that they had taxed her with the fact, and that her answers hadamounted to an angry and petulant denial of what they charged her with.But, as very frequently happens, the declaration of the panel or accusedparty herself was the evidence which bore hardest upon her case.
In the event of these tales ever finding their way across the Border, itmay be proper to apprise the southern reader that it is the practice inScotland, on apprehending a suspected person, to subject him to ajudicial examination before a magistrate. He is not compelled to answerany of the questions asked of him, but may remain silent if he sees ithis interest to do so. But whatever answers he chooses to give areformally written down, and being subscribed by himself and themagistrate, are produced against the accused in case of his being broughtto trial. It is true, that these declarations are not produced as beingin themselves evidence properly so called, but only as adminicles oftestimony, tending to corroborate what is considered as legal and properevidence. Notwithstanding this nice distinction, however, introduced bylawyers to reconcile this procedure to their own general rule, that a mancannot be required to bear witness against himself, it neverthelessusually happens that these declarations become the means of condemningthe accused, as it were, out of their own mouths. The prisoner, uponthese previous examinations, has indeed the privilege of remaining silentif he pleases; but every man necessarily feels that a refusal to answernatural and pertinent interrogatories, put by judicial authority, is initself a strong proof of guilt, and will certainly lead to his beingcommitted to prison; and few can renounce the hope of obtaining libertyby giving some specious account of themselves, and showing apparentfrankness in explaining their motives and accounting for their conduct.It, therefore, seldom happens that the prisoner refuses to give ajudicial declaration, in which, nevertheless, either by letting out toomuch of the truth, or by endeavouring to substitute a fictitious story,he almost always exposes himself to suspicion and to contradictions,which weigh heavily in the minds of the jury.
The declaration of Effie Deans was uttered on other principles, and thefollowing is a sketch of its contents, given in the judicial form, inwhich they may still be found in the Books of Adjournal.
The declarant admitted a criminal intrigue with an individual whose nameshe desired to conceal. "Being interrogated, what her reason was forsecrecy on this point? She declared, that she had no right to blame thatperson's conduct more than she did her own, and that she was willing toconfess her own faults, but not to say anything which might criminate theabsent. Interrogated, if she confessed her situation to any one, or madeany preparation for her confinement? Declares, she did not. And beinginterrogated, why she forbore to take steps which her situation soperemptorily required? Declares, she was ashamed to tell her friends, andshe trusted the person she has mentioned would provide for her and theinfant. Interrogated if he did so? Declares, that he did not do sopersonally; but that it was not his fault, for that the declarant isconvinced he would have laid down his life sooner than the bairn or shehad come to harm. Interrogated, what prevented him from keeping hispromise? Declares, that it was impossible for him to do so, he beingunder trouble at the time, and declines farther answer to this question.Interrogated, where she was from the period she left her master, Mr.Saddletree's family, until her appearance at her father's, at St.Leonard's, the day before she was apprehended? Declares, she does notremember. And, on the interrogatory being repeated, declares, she doesnot mind muckle about it, for she was very ill. On the question beingagain repeated, she declares, she will tell the truth, if it should bethe undoing of her, so long as she is not asked to tell on other folk;and admits, that she passed that interval of time in the lodging of awoman, an acquaintance of that person who had wished her to that place tobe delivered, and that she was there delivered accordingly of a malechild. Interrogated, what was the name of that person? Declares andrefuses to answer this question. Interrogated, where she lives? Declares,she has no certainty, for that she was taken to the lodging aforesaidunder cloud of night. Interrogated, if the lodging was in the city orsuburbs? Declares and refuses to answer that question. Interrogated,whether, when she left the house of Mr. Saddletree, she went up or downthe street? Declares and refuses to answer the question. Interrogated,whether she had ever seen the woman before she was wished to her, as shetermed it, by the person whose name she refuses to answer? Declares andreplies, not to her knowledge. Interrogated, whether this woman wasintroduced to her by the said person verbally, or by word of mouth?Declares, she has no freedom to answer this question. Interrogated, ifthe child was alive when it was born? Declares, that--God help her andit!--it certainly was alive. Interrogated, if it died a natural deathafter birth? Declares, not to her knowledge. Interrogated, where it nowis? Declares, she would give her right hand to ken, but that she neverhopes to see mair than the banes of it. And being interrogated, why shesupposes it is now dead? the declarant wept bitterly and made no answer.Interrogated, if the woman, in whose lodging she was, seemed to be a fitperson to be with her in that situation? Declares, she might be fitenough for skill, but that she was an hard-hearted bad woman.Interrogated, if there was any other person in the lodging exceptingthemselves two? Declares, that she thinks there was another woman; buther head was so carried with pain of body and trouble of mind, that sheminded her very little. Interrogated, when the child was taken away fromher? Declared that she fell in a fever, and was light-headed, and whenshe came to her own mind, the woman told her the bairn was dead; and thatthe declarant answered, if it was dead it had had foul play. That,thereupon, the woman was very sair on her, and gave her much illlanguage; and that the deponent was frightened, and crawled out of thehouse when her back was turned, and went home to Saint Leonard's Crags,as well as a woman in her condition dought.*
* i.e. Was able to do.
Interrogated, why she did not tell her story to her sister and father,and get force to search the house for her child, dead or alive? Declares,it was her purpose to do so, but she had not time. Interrogated, why shenow conceals the name of the woman, and the place of her abode? Thedeclarant remained silent for a time, and then said, that to do so couldnot repair the skaith that was done, but might be the occasion of more.Interrogated, whether she had herself, at any time, had any purpose ofputting away the child by violence? Declares, never; so might God bemerciful to her--and then again declares, never, when she was in herperfect senses; but what bad thoughts the Enemy might put into her brainwhen she was out of herself, she cannot answer. And again solemnlyinterrogated, declares, that she would have been drawn with wild horses,rather than have touched the bairn with an unmotherly hand. Interrogated,declares, that among the ill-language the woman gave her, she did saysure enough that the declarant had hurt the bairn when she was in thebrain fever; but that the declarant does not believe that she said thisfrom any other cause than to frighten her, and make her be silent.Interrogated, what else the woman said to her? Declares, that when thedeclarant cried loud for her bairn, and was like to raise the neighbours,the woman threatened her, that they that could stop the wean's skirlingwould stop hers, if she did not keep a' the founder.*
* i.e. The quieter.
And that this threat, with the manner of the woman, made the declarantconclude, that the bairn's life was gone, and her own in danger, for thatthe woman was a desperate bad
woman, as the declarant judged from thelanguage she used. Interrogated, declares, that the fever and deliriumwere brought on her by hearing bad news, suddenly told to her, butrefuses to say what the said news related to. Interrogated, why she doesnot now communicate these particulars, which might, perhaps, enable themagistrate to ascertain whether the child is living or dead; andrequested to observe, that her refusing to do so, exposes her own life,and leaves the child in bad hands; as also that her present refusal toanswer on such points is inconsistent with her alleged intention to makea clean breast to her sister? Declares, that she kens the bairn is nowdead, or, if living, there is one that will look after it; that for herown living or dying, she is in God's hands, who knows her innocence ofharming her bairn with her will or knowledge; and that she has alteredher resolution of speaking out, which she entertained when she left thewoman's lodging, on account of a matter which she has since learned. Anddeclares, in general, that she is wearied, and will answer no morequestions at this time."
Upon a subsequent examination, Euphemia Deans adhered to the declarationshe had formerly made, with this addition, that a paper found in hertrunk being shown to her, she admitted that it contained the credentials,in consequence of which she resigned herself to the conduct of the womanat whose lodgings she was delivered of the child. Its tenor ran thus:--
"Dearest Effie,--I have gotten the means to send to you by a woman who iswell qualified to assist you in your approaching streight; she is notwhat I could wish her, but I cannot do better for you in my presentcondition. I am obliged to trust to her in this present calamity, formyself and you too. I hope for the best, though I am now in a sore pinch;yet thought is free--I think Handie Dandie and I may queer the stifler*for all that is come and gone.
* Avoid the gallows.
You will be angry for me writing this to my little Cameronian Lily; butif I can but live to be a comfort to you, and a father to your babie, youwill have plenty of time to scold.--Once more, let none knew yourcounsel--my life depends on this hag, d--n her--she is both deep anddangerous, but she has more wiles and wit than ever were in a beldam'shead, and has cause to be true to me. Farewell, my Lily--Do not droop onmy account--in a week I will be yours or no more my own."
Then followed a postscript. "If they must truss me, I will repent ofnothing so much, even at the last hard pinch, as of the injury I havedone my Lily."
Effie refused to say from whom she had received this letter, but enoughof the story was now known, to ascertain that it came from Robertson; andfrom the date, it appeared to have been written about the time whenAndrew Wilson (called for a nickname Handie Dandie) and he weremeditating their first abortive attempt to escape, which miscarried inthe manner mentioned in the beginning of this history.
The evidence of the Crown being concluded, the counsel for the prisonerbegan to lead a proof in her defence. The first witnesses were examinedupon the girl's character. All gave her an excellent one, but none withmore feeling than worthy Mrs. Saddletree, who, with the tears on hercheeks, declared, that she could not have had a higher opinion of EffieDeans, nor a more sincere regard for her, if she had been her owndaughter. All present gave the honest woman credit for her goodness ofheart, excepting her husband, who whispered to Dumbiedikes, "That NichilNovit of yours is but a raw hand at leading evidence, I'm thinking. Whatsignified his bringing a woman here to snotter and snivel, and bathertheir Lordships? He should hae ceeted me, sir, and I should hae gien themsic a screed o' testimony, they shauldna hae touched a hair o' her head."
"Hadna ye better get up and tryt yet?" said the Laird. "I'll mak a signto Novit."
"Na, na," said Saddletree, "thank ye for naething, neighbour--that wouldbe ultroneous evidence, and I ken what belangs to that; but Nichil Novitsuld hae had me ceeted _debito tempore._" And wiping his mouth with hissilk handkerchief with great importance, he resumed the port and mannerof an edified and intelligent auditor.
Mr. Fairbrother now premised, in a few words, "that he meant to bringforward his most important witness, upon whose evidence the cause must ina great measure depend. What his client was, they had learned from thepreceding witnesses; and so far as general character, given in the mostforcible terms, and even with tears, could interest every one in herfate, she had already gained that advantage. It was necessary, headmitted, that he should produce more positive testimony of her innocencethan what arose out of general character, and this he undertook to do bythe mouth of the person to whom she had communicated her situation--bythe mouth of her natural counsellor and guardian--her sister.--Macer,call into court, Jean, or Jeanie Deans, daughter of David Deans,cowfeeder, at Saint Leonard's Crags!"
When he uttered these words, the poor prisoner instantly started up, andstretched herself half-way over the bar, towards the side at which hersister was to enter. And when, slowly following the officer, the witnessadvanced to the foot of the table, Effie, with the whole expression ofher countenance altered, from that of confused shame and dismay, to aneager, imploring, and almost ecstatic earnestness of entreaty, withoutstretched hands, hair streaming back, eyes raised eagerly to hersister's face, and glistening through tears, exclaimed in a tone whichwent through the heart of all who heard her,--"O Jeanie, Jeanie, save me,save me!"
With a different feeling, yet equally appropriated to his proud andself-dependent character, old Deans drew himself back still farther underthe cover of the bench; so that when Jeanie, as she entered the court,cast a timid glance towards the place at which she had left him seated,his venerable figure was no longer visible. He sate down on the otherside of Dumbiedikes, wrung his hand hard, and whispered, "Ah, Laird, thisis warst of a'--if I can but win ower this part--I feel my head uncodizzy; but my Master is strong in his servant's weakness." After amoment's mental prayer, he again started up, as if impatient ofcontinuing in any one posture, and gradually edged himself forwardtowards the place he had just quitted.
Jeanie in the meantime had advanced to the bottom of the table, when,unable to resist the impulse of affections she suddenly extended her handto her sister. Effie was just within the distance that she could seize itwith both hers, press it to her mouth, cover it with kisses, and bathe itin tears, with the fond devotion that a Catholic would pay to a guardiansaint descended for his safety; while Jeanie, hiding her own face withher other hand, wept bitterly. The sight would have moved a heart ofstone, much more of flesh and blood. Many of the spectators shed tears,and it was some time before the presiding Judge himself could so farsubdue his emotion as to request the witness to compose herself, and theprisoner to forbear those marks of eager affection, which, howevernatural, could not be permitted at that time, and in that presence.
The solemn oath,--"the truth to tell, and no truth to conceal, as far asshe knew or should be asked," was then administered by the Judge "in thename of God, and as the witness should answer to God at the great day ofjudgment;" an awful adjuration, which seldom fails to make impressioneven on the most hardened characters, and to strike with fear even themost upright. Jeanie, educated in deep and devout reverence for the nameand attributes of the Deity, was, by the solemnity of a direct appeal tohis person and justice, awed, but at the same time elevated above allconsiderations, save those which she could, with a clear conscience, callHim to witness. She repeated the form in a low and reverent, but distincttone of voice, after the Judge, to whom, and not to any inferior officerof the Court, the task is assigned in Scotland of directing the witnessin that solemn appeal which is the sanction of his testimony.
When the Judge had finished the established form, he added in a feeling,but yet a monitory tone, an advice, which the circumstances appeared tohim to call for.
"Young woman," these were his words, "you come before this Court incircumstances, which it would be worse than cruel not to pity and tosympathise with. Yet it is my duty to tell you, that the truth, whateverits consequences may be, the truth is what you owe to your country, andto that God whose word is truth, and whose name you have now invoked. Useyour own time in answering the q
uestions that gentleman" (pointing to thecounsel) "shall put to you.--But remember, that what you may be temptedto say beyond what is the actual truth, you must answer both here andhereafter."
The usual questions were then put to her:--Whether any one had instructedher what evidence she had to deliver? Whether any one had given orpromised her any good deed, hire, or reward, for her testimony? Whethershe had any malice or ill-will at his Majesty's Advocate, being the partyagainst whom she was cited as a witness? To which questions shesuccessively answered by a quiet negative. But their tenor gave greatscandal and offence to her father, who was not aware that they are put toevery witness as a matter of form.
"Na, na," he exclaimed, loud enough to be heard, "my bairn is no like theWidow of Tekoah--nae man has putten words into her mouth."
One of the judges, better acquainted, perhaps, with the Books ofAdjournal than with the Book of Samuel, was disposed to make some instantinquiry after this Widow of Tekoah, who, as he construed the matter, hadbeen tampering with the evidence. But the presiding Judge, better versedin Scripture history, whispered to his learned brother the necessaryexplanation; and the pause occasioned by this mistake had the good effectof giving Jeanie Deans time to collect her spirits for the painful taskshe had to perform.
Fairbrother, whose practice and intelligence were considerable, saw thenecessity of letting the witness compose herself. In his heart hesuspected that she came to bear false witness in her sister's cause.
"But that is her own affair," thought Fairbrother; "and it is my businessto see that she has plenty of time to regain composure, and to deliverher evidence, be it true, or be it false--_valeat quantum._"
Accordingly, he commenced his interrogatories with uninterestingquestions, which admitted of instant reply.
"You are, I think, the sister of the prisoner?"
"Yes, sir."
"Not the full sister, however?"
"No, sir--we are by different mothers."
"True; and you are, I think, several years older than your sister?"
"Yes, sir," etc.
After the advocate had conceived that, by these preliminary andunimportant questions, he had familiarised the witness with the situationin which she stood, he asked, "whether she had not remarked her sister'sstate of health to be altered, during the latter part of the term whenshe had lived with Mrs. Saddletree?"
Jeanie answered in the affirmative.
"And she told you the cause of it, my dear, I suppose?" said Fairbrother,in an easy, and, as one may say, an inductive sort of tone.
"I am sorry to interrupt my brother," said the Crown Counsel, rising;"but I am in your Lordships' judgment, whether this be not a leadingquestion?"
"If this point is to be debated," said the presiding Judge, "the witnessmust be removed."
For the Scottish lawyers regard with a sacred and scrupulous horror everyquestion so shaped by the counsel examining, as to convey to a witnessthe least intimation of the nature of the answer which is desired fromhim. These scruples, though founded on an excellent principle, aresometimes carried to an absurd pitch of nicety, especially as it isgenerally easy for a lawyer who has his wits about him to elude theobjection. Fairbrother did so in the present case.
"It is not necessary to waste the time of the Court, my Lord since theKing's Counsel thinks it worth while to object to the form of myquestion, I will shape it otherwise.--Pray, young woman, did you ask yoursister any question when you observed her looking unwell?--takecourage--speak out."
"I asked her," replied Jeanie, "what ailed her."
"Very well--take your own time--and what was the answer she made?"continued Mr. Fairbrother.
Jeanie was silent, and looked deadly pale. It was not that she at any oneinstant entertained an idea of the possibility of prevarication--it wasthe natural hesitation to extinguish the last spark of hope that remainedfor her sister.
"Take courage, young woman," said Fairbrother.--"I asked what your sistersaid ailed her when you inquired?"
"Nothing," answered Jeanie, with a faint voice, which was yet hearddistinctly in the most distant corner of the Court-room,--such an awfuland profound silence had been preserved during the anxious interval,which had interposed betwixt the lawyer's question and the answer of thewitness.
Fairbrother's countenance fell; but with that ready presence of mind,which is as useful in civil as in military emergencies, he immediatelyrallied.--"Nothing? True; you mean nothing at _first_--but when you askedher again, did she not tell you what ailed her?"
The question was put in a tone meant to make her comprehend theimportance of her answer, had she not been already aware of it. Theice was broken, however, and with less pause than at first, she nowreplied,--"Alack! alack! she never breathed word to me about it."
A deep groan passed through the Court. It was echoed by one deeper andmore agonised from the unfortunate father. The hope to whichunconsciously, and in spite of himself, he had still secretly clung, hadnow dissolved, and the venerable old man fell forward senseless on thefloor of the Court-house, with his head at the foot of his terrifieddaughter. The unfortunate prisoner, with impotent passion, strove withthe guards betwixt whom she was placed. "Let me gang to my father!--I_will_ gang to him--I _will_ gang to him--he is dead--he is killed--I haekilled him!"--she repeated, in frenzied tones of grief, which those whoheard them did not speedily forget.
Even in this moment of agony and general confusion, Jeanie did not losethat superiority, which a deep and firm mind assures to its possessorunder the most trying circumstances.
"He is my father--he is our father," she mildly repeated to those whoendeavoured to separate them, as she stooped,--shaded aside his greyhairs, and began assiduously to chafe his temples.
The Judge, after repeatedly wiping his eyes, gave directions that theyshould be conducted into a neighbouring apartment, and carefullyattended. The prisoner, as her father was borne from the Court, and hersister slowly followed, pursued them with her eyes so earnestly fixed, asif they would have started from their sockets. But when they were nolonger visible, she seemed to find, in her despairing and deserted state,a courage which she had not yet exhibited.
"The bitterness of it is now past," she said, and then boldly, addressedthe Court. "My Lords, if it is your pleasure to gang on wi' this matter,the weariest day will hae its end at last."
The Judge, who, much to his honour, had shared deeply in the generalsympathy, was surprised at being recalled to his duty by the prisoner. Hecollected himself, and requested to know if the panel's counsel had moreevidence to produce. Fairbrother replied, with an air of dejection, thathis proof was concluded.
The King's Counsel addressed the jury for the crown. He said in a fewwords, that no one could be more concerned than he was for thedistressing scene which they had just witnessed. But it was the necessaryconsequence of great crimes to bring distress and ruin upon all connectedwith the perpetrators. He briefly reviewed the proof, in which he showedthat all the circumstances of the case concurred with those required bythe act under which the unfortunate prisoner was tried: That the counselfor the panel had totally failed in proving, that Euphemia Deans hadcommunicated her situation to her sister: That, respecting her previousgood character, he was sorry to observe, that it was females whopossessed the world's good report, and to whom it was justly valuable,who were most strongly tempted, by shame and fear of the world's censure,to the crime of infanticide: That the child was murdered, he professed toentertain no doubt. The vacillating and inconsistent declaration of theprisoner herself, marked as it was by numerous refusals to speak thetruth on subjects, when, according to her own story, it would have beennatural, as well as advantageous, to have been candid; even thisimperfect declaration left no doubt in his mind as to the fate of theunhappy infant. Neither could he doubt that the panel was a partner inthis guilt. Who else had an interest in a deed so inhuman? Surely neitherRobertson, nor Robertson's agent, in whose house she was delivered,had the least temptation to commit such a crime, unless upo
n her account,with her connivance, and for the sake of saying her reputation. But itwas not required of him, by the law, that he should bring precise proofof the murder, or of the prisoner's accession to it. It was the verypurpose of the statute to substitute a certain chain of presumptiveevidence in place of a probation, which, in such cases, it was peculiarlydifficult to obtain. The jury might peruse the statute itself, and theyhad also the libel and interlocutor of relevancy to direct them in pointof law. He put it to the conscience of the jury, that under both he wasentitled to a verdict of Guilty.
The charge of Fairbrother was much cramped by his having failed in theproof which he expected to lead. But he fought his losing cause withcourage and constancy. He ventured to arraign the severity of the statuteunder which the young woman was tried. "In all other cases," he said,"the first thing required of the criminal prosecutor was to proveunequivocally that the crime libelled had actually been committed, whichlawyers called proving the _corpus delicti._ But this statute, madedoubtless with the best intentions, and under the impulse of a justhorror for the unnatural crime of infanticide, ran the risk of itselfoccasioning the worst of murders, the death of an innocent person, toatone for a supposed crime which may never have been committed by anyone.He was so far from acknowledging the alleged probability of the child'sviolent death, that he could not even allow that there was evidence ofits having ever lived."
The King's Counsel pointed to the woman's declaration; to which thecounsel replied--"A production concocted in a moment of terror and agony,and which approached to insanity," he said, "his learned brother wellknew was no sound evidence against the party who emitted it. It was true,that a judicial confession, in presence of the Justices themselves, wasthe strongest of all proof, insomuch that it is said in law, that '_inconfitentem nullae sunt partes judicis._' But this was true of judicialconfession only, by which law meant that which is made in presence of thejustices, and the sworn inquest. Of extrajudicial confession, allauthorities held with the illustrious Farinaceus and Matthaeus,'_confessio extrajudicialis in se nulla est; et quod nullum est, nonpotest adminiculari._' It was totally inept, and void of all strength andeffect from the beginning; incapable, therefore, of being bolstered up orsupported, or, according to the law phrase, adminiculated, by otherpresumptive circumstances. In the present case, therefore, letting theextrajudicial confession go, as it ought to go, for nothing," hecontended, "the prosecutor had not made out the second quality of thestatute, that a live child had been born; and _that,_ at least, ought tobe established before presumptions were received that it had beenmurdered. If any of the assize," he said, "should be of opinion that thiswas dealing rather narrowly with the statute, they ought to consider thatit was in its nature highly penal, and therefore entitled to nofavourable construction."
He concluded a learned speech, with an eloquent peroration on the scenethey had just witnessed, during which Saddletree fell fast asleep.
It was now the presiding Judge's turn to address the jury. He did sobriefly and distinctly.
"It was for the jury," he said, "to consider whether the prosecutor hadmade out his plea. For himself, he sincerely grieved to say, that ashadow of doubt remained not upon his mind concerning the verdict whichthe inquest had to bring in. He would not follow the prisoner's counselthrough the impeachment which he had brought against the statute of KingWilliam and Queen Mary. He and the jury were sworn to judge according tothe laws as they stood, not to criticise, or evade, or even to justifythem. In no civil case would a counsel have been permitted to plead hisclient's case in the teeth of the law; but in the hard situation in whichcounsel were often placed in the Criminal Court, as well as out of favourto all presumptions of innocence, he had not inclined to interrupt thelearned gentleman, or narrow his plea. The present law, as it now stood,had been instituted by the wisdom of their fathers, to check the alarmingprogress of a dreadful crime; when it was found too severe for itspurpose it would doubtless be altered by the wisdom of the Legislature;at present it was the law of the land, the rule of the Court, and,according to the oath which they had taken, it must be that of the jury.This unhappy girl's situation could not be doubted; that she had borne achild, and that the child had disappeared, were certain facts. Thelearned counsel had failed to show that she had communicated hersituation. All the requisites of the case required by the statute weretherefore before the jury. The learned gentleman had, indeed, desiredthem to throw out of consideration the panel's own confession, which wasthe plea usually urged, in penury of all others, by counsel in hissituation, who usually felt that the declarations of their clients borehard on them. But that the Scottish law designed that a certain weightshould be laid on these declarations, which, he admitted, were_quodammodo_ extrajudicial, was evident from the universal practice bywhich they were always produced and read, as part of the prosecutor'sprobation. In the present case, no person who had heard the witnessesdescribe the appearance of the young woman before she left Saddletree'shouse, and contrasted it with that of her state and condition at herreturn to her father's, could have any doubt that the fact of deliveryhad taken place, as set forth in her own declaration, which was,therefore, not a solitary piece of testimony, but adminiculated andsupported by the strongest circumstantial proof.
"He did not," he said, "state the impression upon his own mind with thepurpose of biassing theirs. He had felt no less than they had done fromthe scene of domestic misery which had been exhibited before them; and ifthey, having God and a good conscience, the sanctity of their oath, andthe regard due to the law of the country, before their eyes, could cometo a conclusion favourable to this unhappy prisoner, he should rejoice asmuch as anyone in Court; for never had he found his duty more distressingthan in discharging it that day, and glad he would be to be relieved fromthe still more painful task which would otherwise remain for him."
The jury, having heard the Judge's address, bowed and retired, precededby a macer of Court, to the apartment destined for their deliberation.
CHAPTER TWENTY-THIRD.
Law, take thy victim--May she find the mercy In yon mild heaven, which this hard world denies her!
It was an hour ere the jurors returned, and as they traversed the crowdwith slow steps, as men about to discharge themselves of a heavy andpainful responsibility, the audience was hushed into profound, earnest,and awful silence.
"Have you agreed on your chancellor, gentlemen?" was the first questionof the Judge.
The foreman, called in Scotland the chancellor of the jury, usually theman of best rank and estimation among the assizers, stepped forward, andwith a low reverence, delivered to the Court a sealed paper, containingthe verdict, which, until of late years, that verbal returns are in someinstances permitted, was always couched in writing. The jury remainedstanding while the Judge broke the seals, and having perused the paper,handed it with an air of mournful gravity down to the clerk of Court, whoproceeded to engross in the record the yet unknown verdict, of which,however, all omened the tragical contents. A form still remained,trifling and unimportant in itself, but to which imagination adds a sortof solemnity, from the awful occasion upon which it is used. A lightedcandle was placed on the table, the original paper containing the verdictwas enclosed in a sheet of paper, and, sealed with the Judge's ownsignet, was transmitted to the Crown Office, to be preserved among otherrecords of the same kind. As all this is transacted in profound silence,the producing and extinguishing the candle seems a type of the humanspark which is shortly afterwards doomed to be quenched, and excites inthe spectators something of the same effect which in England is obtainedby the Judge assuming the fatal cap of judgment. When these preliminaryforms had been gone through, the Judge required Euphemia Deans to attendto the verdict to be read.
After the usual words of style, the verdict set forth, that the Juryhaving made choice of John Kirk, Esq., to be their chancellor, and ThomasMoore, merchant, to be their clerk, did, by a plurality of voices, findthe said Euphemia Deans Guilty of the crime libelled; but,
inconsideration of her extreme youth, and the cruel circumstances of hercase, did earnestly entreat that the Judge would recommend her to themercy of the Crown.
"Gentlemen," said the Judge, "you have done your duty--and a painful oneit must have been to men of humanity like you. I will undoubtedlytransmit your recommendation to the throne. But it is my duty to tell allwho now hear me, but especially to inform that unhappy young woman, inorder that her mind may be settled accordingly, that I have not the leasthope of a pardon being granted in the present case. You know the crimehas been increasing in this land, and I know farther, that this has beenascribed to the lenity in which the laws have been exercised, and thatthere is therefore no hope whatever of obtaining a remission for thisoffence." The jury bowed again, and, released from their painful office,dispersed themselves among the mass of bystanders.
The Court then asked Mr. Fairbrother whether he had anything to say, whyjudgment should not follow on the verdict? The counsel had spent sometime in persuing and reperusing the verdict, counting the letters in eachjuror's name, and weighing every phrase, nay, every syllable, in thenicest scales of legal criticism. But the clerk of the jury hadunderstood his business too well. No flaw was to be found, andFairbrother mournfully intimated, that he had nothing to say in arrest ofjudgment.
The presiding Judge then addressed the unhappy prisoner:--"EuphemiaDeans, attend to the sentence of the Court now to be pronounced againstyou."
She rose from her seat, and with a composure far greater than could havebeen augured from her demeanour during some parts of the trial, abode theconclusion of the awful scene. So nearly does the mental portion of ourfeelings resemble those which are corporeal, that the first severe blowswhich we receive bring with them a stunning apathy, which renders usindifferent to those that follow them. Thus said Mandrin, when he wasundergoing the punishment of the wheel; and so have all felt, upon whomsuccessive inflictions have descended with continuous and reiteratedviolence.*
* [The notorious Mandrin was known as the Captain-General of French &smugglers. See a Tract on his exploits, printed 1753.]
"Young woman," said the Judge, "it is my painful duty to tell you, thatyour life is forfeited under a law, which, if it may seem in some degreesevere, is yet wisely so, to render those of your unhappy situation awarewhat risk they run, by concealing, out of pride or false shame, theirlapse from virtue, and making no preparation to save the lives of theunfortunate infants whom they are to bring into the world. When youconcealed your situation from your mistress, your sister, and otherworthy and compassionate persons of your own sex, in whose favour yourformer conduct had given you a fair place, you seem to me to have had inyour contemplation, at least, the death of the helpless creature, forwhose life you neglected to provide. How the child was disposedof--whether it was dealt upon by another, or by yourself--whether theextraordinary story you have told is partly false, or altogether so, isbetween God and your own conscience. I will not aggravate your distressby pressing on that topic, but I do most solemnly adjure you to employthe remaining space of your time in making your peace with God, for whichpurpose such reverend clergymen, as you yourself may name, shall haveaccess to you. Notwithstanding the humane recommendation of the jury, Icannot afford to you, in the present circumstances of the country, theslightest hope that your life will be prolonged beyond the periodassigned for the execution of your sentence. Forsaking, therefore, thethoughts of this world, let your mind be prepared by repentance for thoseof more awful moments--for death, judgment, and eternity.--Doomster, readthe sentence."*
* Note N. Doomster, or Dempster, of Court.
When the Doomster showed himself, a tall haggard figure, arrayed in afantastic garment of black and grey, passmented with silver lace, allfell back with a sort of instinctive horror, and made wide way for him toapproach the foot of the table. As this office was held by the commonexecutioner, men shouldered each other backward to avoid even the touchof his garment, and some were seen to brush their own clothes, which hadaccidentally become subject to such contamination. A sound went throughthe Court, produced by each person drawing in their breath hard, as mendo when they expect or witness what is frightful, and at the same timeaffecting. The caitiff villain yet seemed, amid his hardened brutality,to have some sense of his being the object of public detestation, whichmade him impatient of being in public, as birds of evil omen are anxiousto escape from daylight, and from pure air.
Repeating after the Clerk of Court, he gabbled over the words of thesentence, which condemned Euphemia Deans to be conducted back to theTolbooth of Edinburgh, and detained there until Wednesday the day of ---;and upon that day, betwixt the hours of two and four o'clock afternoon,to be conveyed to the common place of execution, and there hanged by theneck upon a gibbet. "And this," said the Doomster, aggravating his harshvoice, "I pronounce for _doom._"
He vanished when he had spoken the last emphatic word, like a foul fiendafter the purpose of his visitation had been accomplished; but theimpression of horror excited by his presence and his errand, remainedupon the crowd of spectators.
The unfortunate criminal,--for so she must now be termed,--with moresusceptibility, and more irritable feelings than her father and sister,was found, in this emergence, to possess a considerable share of theircourage. She had remained standing motionless at the bar while thesentence was pronounced, and was observed to shut her eyes when theDoomster appeared. But she was the first to break silence when that evilform had left his place.
"God forgive ye, my Lords," she said, "and dinna be angry wi' me forwishing it--we a' need forgiveness.--As for myself, I canna blame ye, forye act up to your lights; and if I havena killed my poor infant, ye maywitness a' that hae seen it this day, that I hae been the means ofkilling my greyheaded father--I deserve the warst frae man, and frae Godtoo--But God is mair mercifu' to us than we are to each other."
With these words the trial concluded. The crowd rushed, bearing forwardand shouldering each other, out of the Court, in the same tumultuary modein which they had entered; and, in excitation of animal motion and animalspirits, soon forgot whatever they had felt as impressive in the scenewhich they had witnessed. The professional spectators, whom habit andtheory had rendered as callous to the distress of the scene as medicalmen are to those of a surgical operation, walked homeward in groups,discussing the general principle of the statute under which the youngwoman was condemned, the nature of the evidence, and the arguments of thecounsel, without considering even that of the Judge as exempt from theircriticism.
The female spectators, more compassionate, were loud in exclamationagainst that part of the Judge's speech which seemed to cut off the hopeof pardon.
"Set him up, indeed," said Mrs. Howden, "to tell us that the poor lassiebehoved to die, when Mr. John Kirk, as civil a gentleman as is within theports of the town, took the pains to prigg for her himsell."
"Ay, but, neighbour," said Miss Damahoy, drawing up her thin maidenlyform to its full height of prim dignity--"I really think this unnaturalbusiness of having bastard-bairns should be putten a stop to.--There isnaa hussy now on this side of thirty that you can bring within your doors,but there will be chields--writer-lads, prentice-lads, and whatnot--coming traiking after them for their destruction, and discreditingane's honest house into the bargain--I hae nae patience wi' them."
"Hout, neighbour," said Mrs. Howden, "we suld live and let live--we haebeen young oursells, and we are no aye to judge the warst when lads andlasses forgather."
"Young oursells! and judge the warst!" said Miss Damahoy. "I am no saeauld as that comes to, Mrs. Howden; and as for what ye ca' the warst, Iken neither good nor bad about the matter, I thank my stars!"
"Ye are thankfu' for sma' mercies, then," said Mrs. Howden with a toss ofher head; "and as for you and young--I trow ye were doing for yoursell atthe last riding of the Scots Parliament, and that was in the graciousyear seven, sae ye can be nae sic chicken at ony rate."
Plumdamas, who acted as squire of the body to the two contending da
mes,instantly saw the hazard of entering into such delicate points ofchronology, and being a lover of peace and good neighbourhood, lost notime in bringing back the conversation to its original subject.
"The Judge didna tell us a' he could hae tell'd us, if he had liked,about the application for pardon, neighbours," said he "there is aye awimple in a lawyer's clew; but it's a wee bit of a secret."
"And what is't--what is't, neighbour Plumdamas?" said Mrs. Howden andMiss Damahoy at once, the acid fermentation of their dispute being atonce neutralised by the powerful alkali implied in the word secret.
"Here's Mr. Saddletree can tell ye that better than me, for it was himthat tauld me," said Plumdamas as Saddletree came up, with his wifehanging on his arm, and looking very disconsolate.
When the question was put to Saddletree, he looked very scornful. "Theyspeak about stopping the frequency of child-murder," said he, in acontemptuous tone; "do ye think our auld enemies of England, as Glendookaye ca's them in his printed Statute-book, care a boddle whether we didnakill ane anither, skin and birn, horse and foot, man, woman, and bairns,all and sindry, _omnes et singulos,_ as Mr. Crossmyloof says? Na, na,it's no _that_ hinders them frae pardoning the bit lassie. But here isthe pinch of the plea. The king and queen are sae ill pleased wi' thatmistak about Porteous, that deil a kindly Scot will they pardon again,either by reprieve or remission, if the haill town o' Edinburgh should bea' hanged on ae tow."
"Deil that they were back at their German kale-yard then, as my neighbourMacCroskie ca's it," said Mrs. Howden, "an that's the way they're gaun toguide us!"
"They say for certain," said Miss Damahoy, "that King George flang hisperiwig in the fire when he heard o' the Porteous mob."
"He has done that, they say," replied Saddletree, "for less thing."
"Aweel," said Miss Damahoy, "he might keep mair wit in his anger--butit's a' the better for his wigmaker, I'se warrant."
"The queen tore her biggonets for perfect anger,--ye'll hae heard o' thattoo?" said Plumdamas. "And the king, they say, kickit Sir Robert Walpolefor no keeping down the mob of Edinburgh; but I dinna believe he wadbehave sae ungenteel."
"It's dooms truth, though," said Saddletree; "and he was for kickin' theDuke of Argyle* too."
* Note O. John Duke of Argyle and Greenwich.
"Kickin' the Duke of Argyle!" exclaimed the hearers at once, in all thevarious combined keys of utter astonishment.
"Ay, but MacCallummore's blood wadna sit down wi' that; there was risk ofAndro Ferrara coming in thirdsman."
"The duke is a real Scotsman--a true friend to the country," answeredSaddletree's hearers.
"Ay, troth is he, to king and country baith, as ye sall hear," continuedthe orator, "if ye will come in bye to our house, for it's safestspeaking of sic things _inter parietes._"
When they entered his shop, he thrust his prentice boy out of it, and,unlocking his desk, took out, with an air of grave and complacentimportance, a dirty and crumpled piece of printed paper; he observed,"This is new corn--it's no every body could show you the like o' this.It's the duke's speech about the Porteous mob, just promulgated by thehawkers. Ye shall hear what Ian Roy Cean* says for himsell.
* Red John the warrior, a name personal and proper in the Highlands toJohn Duke of Argyle and Greenwich, as MacCummin was that of his race ordignity.
My correspondent bought it in the Palace-yard, that's like just under theking's nose--I think he claws up their mittans!--It came in a letterabout a foolish bill of exchange that the man wanted me to renew for him.I wish ye wad see about it, Mrs. Saddletree."
Honest Mrs. Saddletree had hitherto been so sincerely distressed aboutthe situation of her unfortunate prote'ge'e, that she had suffered herhusband to proceed in his own way, without attending to what he wassaying. The words bills and renew had, however, an awakening sound inthem; and she snatched the letter which her husband held towards her, andwiping her eyes, and putting on her spectacles, endeavoured, as fast asthe dew which collected on her glasses would permit, to get at themeaning of the needful part of the epistle; while her husband, withpompous elevation, read an extract from the speech.
"I am no minister, I never was a minister, and I never will be one"
"I didna ken his Grace was ever designed for the ministry," interruptedMrs. Howden.
"He disna mean a minister of the gospel, Mrs. Howden, but a minister ofstate," said Saddletree, with condescending goodness, and then proceeded:"The time was when I might have been a piece of a minister, but I was toosensible of my own incapacity to engage in any state affair. And I thankGod that I had always too great a value for those few abilities whichNature has given me, to employ them in doing any drudgery, or any job ofwhat kind soever. I have, ever since I set out in the world (and Ibelieve few have set out more early), served my prince with my tongue; Ihave served him with any little interest I had, and I have served himwith my sword, and in my profession of arms. I have held employmentswhich I have lost, and were I to be to-morrow deprived of those whichstill remain to me, and which I have endeavoured honestly to deserve, Iwould still serve him to the last acre of my inheritance, and to the lastdrop of my blood"
Mrs. Saddletree here broke in upon the orator:--"Mr. Saddletree, what_is_ the meaning of a' this? Here are ye clavering about the Duke ofArgyle, and this man Martingale gaun to break on our hands, and lose usgude sixty pounds--I wonder what duke will pay that, quotha--I wish theDuke of Argyle would pay his ain accounts--He is in a thousand pundsScots on thae very books when he was last at Roystoun--I'm no saying buthe's a just nobleman, and that it's gude siller--but it wad drive anedaft to be confused wi' deukes and drakes, and thae distressed folkup-stairs, that's Jeanie Deans and her father. And then, putting the verycallant that was sewing the curpel out o' the shop, to play wi'blackguards in the close--Sit still, neighbours, it's no that I mean todisturb _you;_ but what between courts o' law and courts o' state, andupper and under parliaments, and parliament houses, here and in London,the gudeman's gane clean gyte, I think."
The gossips understood civility, and the rule of doing as they would bedone by, too well, to tarry upon the slight invitation implied in theconclusion of this speech, and therefore made their farewells anddeparture as fast as possible, Saddletree whispering to Plundamas that hewould "meet him at MacCroskie's" (the low-browed shop in theLuckenbooths, already mentioned), "in the hour of cause, and putMacCallummore's speech in his pocket, for a' the gudewife's din."
When Mrs. Saddletree saw the house freed of her importunate visitors, andthe little boy reclaimed from the pastimes of the wynd to the exercise ofthe awl, she went to visit her unhappy relative, David Deans, and hiselder daughter, who had found in her house the nearest place of friendlyrefuge.