‘A woman!’ Eleanor marvelled. ‘However does she manage it?’
‘Admirably. Though it is evident that circumstances are not always kind to her. I confess I was impressed at the way she arranges the shop.’
‘Is she pretty?’ Grace asked shrewdly.
‘I believe she is,’ Hew winked at her. ‘She is small and slight, with linen-coloured hair. Almost as bonny as you.’
Grace dismissed the compliment. ‘Then you could marry her. And be a printer, if you did not like to be an advocate like Daddie.’
Roger snorted rudely.
‘Don’t be silly, Grace,’ her mother said.
‘I think that is a little premature,’ Hew smiled. ‘Yet I may well learn enough, to practise as a printer, in the hours it will take to make good my father’s manuscript.’
Richard frowned. ‘I am surprised you did not mention this before, when you spoke of your business here. When I took you in my house, I had not thought you secretive.’
‘Richard!’ Eleanor exclaimed, ‘what a strange thing to say!’
‘But Richard is right,’ replied Hew. ‘I did not speak of it, because, in some sense, it makes me uncomfortable. My father left a book of his old cases, analysed as an exemplar in the law, and dedicated it to me, hoping to persuade me to continue in the practick. Which course, as you know,’ he glanced at Richard, ‘I am reluctant to follow, less willing still, where I perceive myself trapped. I brought the book, in truth, in no small part resenting it. But when I saw it dripping, salvaged from the sea, I had a change of heart, and understood its worth.’
‘That is natural enough,’ Eleanor observed. ‘It was your father’s last gift, after all.’
‘Have you read this book?’ queried Richard.
‘I confess, I have not. For in my stubbornness I have resisted it. That will make my task in deciphering the script more difficult, I fear.’
‘And you say it is based on your father’s old cases? Truly, I might wish that you had mentioned this, and asked for my advice, before you took it to the printer.’ Richard stroked his beard. ‘It may not be fitting, to allow it in to print.’
‘Why, father?’ asked Roger, listening intently.
‘Hew’s father was a gentleman …’
‘Was he? I thought he was a lawyer.’
‘Hold your tongue!’
Hew was taken aback by the force of Richard’s rebuke, to what appeared an innocent remark, but the boy gave a small and satisfied smile.
‘Hew’s father was a gentleman,’ Richard had recovered his composure, ‘and gentlemen do not put forth opinions in the press. It is not done. I fear this may do harm to Matthew’s reputation.’
‘I don’t see why. If learned men do not write books, then how shall we have books to learn?’ objected Roger ‘And if a gentleman should happen to have wit, and be a scholar too, then surely, he should share it.’
‘You may stay here and eat, sir, or you may speak, but you may not do both,’ his father told him icily. Roger lapsed into a sullen silence, and began to push a piece of bread around his bowl.
‘For myself,’ Hew answered quietly, ‘I am inclined to think with Roger. My father, for his faults, cared little for his reputation. It was something I admired in him.’
There followed an awkward silence, broken finally by Grace announcing, ‘I like books with pictures, like the ones in Minnie’s bible.’
‘So do I,’ Hew told her. ‘And do you know how they are made? They cut the pictures into little blocks of wood …’
It seemed that Richard came to regret his outburst to his son, for at the close of the meal he inquired of him pleasantly. ‘I have half an hour to spare. Will you play a game of chess?’
The boy replied, ‘No, thank you, sir. I have something to prepare for school.’
‘How goes your schooling?’ Richard asked him.
Roger shrugged. ‘Well enough.’ Reluctantly, he added, seeing Richard frown, ‘the schoolmaster was pleased with me today.’
‘As well he might be.’ Richard turned to Hew. ‘Roger is a subtle boy, the sharpest of my children.’
‘I am subtle,’ Grace protested.
‘Aye, mouse, for a little lass.’ He chucked her under the chin. ‘I shall take a turn outside,’ he announced, to no one in particular, ‘and clear my head for court. Tomorrow promises to be a testing day.’
No sooner had he left, when Roger closed his book and came to stand by Hew. ‘Do you play chess, Master Cullan? Will you play a game with me?’
Hew laughed. ‘Gladly. But I thought that you had work to do.’
‘No more tonight.’ Roger emptied the chessmen out of their box and began to set them on their square upon a little table by the fire. ‘I do not care to play against my father. For my father likes to win.’
‘I suspect we all do, in the end,’ suggested Hew.
‘Aye, to be sure. But my father gives no quarter. It’s the lawman in him.’
‘You don’t seem to like lawyers much,’ Hew observed.
‘Hush, Roger,’ Eleanor called out anxiously. She was sitting on the stand bed, brushing Grace’s hair. ‘You know how it is, Hew. Fathers and sons …’
‘Richard is the kindest father,’ she excused her husband, once Grace and Roger were safely in bed. ‘And he loves his children very much. His family is the world to him; he values nothing more. But when he has a case, he is apt to be distracted, and remote. His mood is closed and distant, and he is taut and vexed. At such a time, he is better left alone, to work the matter out. Tomorrow is a case of great importance to him. Has he asked you to go with him? I believe that he intends to. Then you should be grateful. It matters to him, Hew.’
‘For certain, I will thank him, if he asks me,’ Hew assured her. ‘What’s the case?’
Eleanor stared at him. ‘I confess, I do not know. He does not discuss his work.’
Wilful Error
The next morning, Richard’s mood had changed. He appeared alert, in a state of well-controlled excitement. As Eleanor had predicted, he invited Hew to join him at the justice court. ‘This is a case of substance,’ he explained. ‘The chancellor has agreed that you may watch. The prosecutor is Robert Crichton, Lord Advocate, and I have been engaged to speak for the panel, who is Simon Pettigrew, a mercer in the town.’
‘What is the charge?’ questioned Hew.
‘The slaughter and cruel murder of Elspet Barr his wife. He despatched her down the turnpike at their lodging in the Canongate.’
‘You mean he is accused of doing so?’
‘I mean he did it,’ Richard grinned. ‘And he has confessed to it. Have you seen my gloves?’
‘You do not seem to mind it,’ Hew remarked. ‘I should have thought it vexing, to have lost your case, before it has begun.’
‘Indeed,’ agreed Richard. ‘That would be vexing. Who said the case was lost?’ He found the gloves behind a candlestick, and peered into a looking glass, tweaking at his hair.
‘You did, as I thought.’
‘I said nothing of the sort. Listen closely. I said that Simon had confessed.’
‘And is he not guilty, then?’ Hew asked, confused.
‘Beyond shadow of a doubt,’ confirmed Richard cheerfully. ‘He despatched his old wife, who was rich and ugly, and now has a new wife, who is young and fair. It is Elspet Barr’s father who makes the complaint.’
‘Then surely, if he confessed …’
‘Peace, now, listen closely. It is your place to sit on the bench with the prentices and students – no doubt Crichton has some of his own, even now – and to watch and learn,’ advised Richard. ‘Take note of what you see. And aught you hear you do not understand, I shall explain it in the tavern afterwards. You may enter the court, and leave it, with me, but do not come or go alone, or the macers will arrest you, for contempt. Above all, listen, do not speak.’
‘Surely Pettigrew will hang? You cannot offer a defence?’ Hew persisted.
‘I will tell you this much only
,’ Richard laughed, ‘Robert Crichton, for all he is king’s advocate, is growing slow and tired. This morning, you will see him bested. Now, we are ready, I think.’
He was dressed in black velvet, embroidered in silver, and the same slashed leather gloves he had worn at Matthew’s funeral. It was essential, he explained to Hew, to dress according to his rank, otherwise, his voice would not be heard.
The justice court sat in the new tolbooth, at the south-west corner of St Giles. As they approached, the kirk bells rang, and the macers at the door stood to attention, raising their wands and nodding to Richard, allowing them to pass. In an anteroom upstairs, they found their client, Simon Pettigrew, waiting nervously. Richard extended basic courtesies, before taking Pettigrew aside for a brief consultation, out of earshot of Hew. Briskly, he ushered them inside, and gestured Hew towards a narrow bench, where he had a fair view of proceedings. At the back of the room was a stage, upon which were set out half a dozen chairs and a long board covered with green cloth. Presently, behind this stage, a small door opened to admit the justices in scarlet gowns, and the whole court rose. Richard, by this time, was stationed at the bar beside his client Pettigrew, who stood dabbing at his forehead with a handkerchief. At the other end of the court, the door opened from the anteroom to allow forty-five stout men and true to shuffle in uncomfortably. From this reluctant crowd, fifteen were chosen to make up the assize. Meanwhile, Robert Crichton had appeared, in dappled dark green silks, a peacock to Richard’s black swan. He was the father of James Crichton, the admirable, whose accomplishments Hew had spoken of to Nicholas. In Matthew Cullan’s time, he had been queen’s advocate, and had survived some twenty years to serve the king. Doubtless, Hew reflected, it was Robert Crichton who had led the prosecution of the writer hanged for forgery, losing Richard his first case. It was hard to see, under present circumstances, how Richard proposed to recover the advantage. Evidently, Simon Pettigrew felt the same, for he stood weakly sweating, a peculiar, sickly shade.
The clerk of the court then read out the dittay, that the panel Pettigrew was accusit of foul and cruel slaughter of his wife Elspet Barr, that he did push her down the turnpike of their lodging in the Canongate, that he might confess or deny it. Pettigrew, emphatically, denied it. Crichton looked nonplussed. ‘But surely,’ he protested, ‘the panel has confessed his crime before the magistrate.’
Richard said smoothly, ‘And now he denies it.’
Crichton appealed to the justice. ‘You will not allow this retraction, my lord? The confession was witnessed, and the panel wrote his name to it.’
The justice answered patiently, ‘As ye well ken and understand, Master Crichton, the panel must be tried, whether he confesses here or no. Therefore let the clerk record that he denies it, and the jury will decide whether his confession is due proof.’
Crichton looked rattled, and Hew began to understand Richard’s strategy. For all his experience – or perhaps because of it – Crichton had come ill-prepared. He was dependent on confession for probation; if confession was retracted, then he had no other proofs. Richard was exploiting the fact that all cases, whatever the plea, were put before a jury. But the strategy – which depended on the jury – was a dangerous one. The macers produced the list of assize, and the names of those present were read out, and objected to, by both lawyers intermittently, a process which took some considerable time. Eventually, fifteen were agreed, and were sworn in batches, to seek truth by God himself, and by their part in Paradise, and as they would answer to God upon the dreadful day of doom.
Robert Crichton then addressed the jury, and put the fear of God in them, by threatening them with wilful error on assize, if they dared acquit the panel; then Richard Cunningham addressed them, threatening the same, if they should dare convict him.
These formalities concluded, Crichton began with his probation, which proved short enough, since it depended on the confession that Pettigrew denied. Crichton had the clerk read out the statement Simon Pettigrew had made before the magistrate, confessing to the murder of his wife.
‘Did you make this statement?’ he demanded of the merchant. Pettigrew supposed that he had.
‘Then do you own it now?’
‘No, sir, I retract it. It was made in error, when I was distracted, by the recent death and burial of my wife.’
‘Then perhaps you will explain how you came to confess to a crime that you now say you did not commit?’ Crichton countered dryly.
Richard Cunningham was on his feet, at once alert and watchful. ‘Master Pettigrew will not,’ he objected, ‘for as the lord advocate knows full well, the accused may not give evidence, save what he confesses or denies. Master Pettigrew denies. And there must be an end to it.’
‘Now that is true, you know,’ the judge admonished seriously. ‘We cannot allow the defendant to speak, for fear he may perjure himself. And we cannot allow him to perjure himself, for fear of eternal damnation. It is for your own good, Master Pettigrew,’ he exhorted kindly. ‘I do not mean to say that you are lying now, or that you lied before.’
‘But since he must be lying now, or else he lied before,’ Crichton argued smoothly, ‘then it would appear he is already perjured. Therefore, let him speak.’
‘As you well know, my lord, the law does not allow that,’ the judge replied severely. ‘And, since he is so muddled, he had better hold his peace.’
Crichton was exasperated. ‘Will you not rule,’ he appealed again to the judge, ‘that this man’s confession must stand?’
‘No,’ replied the judge. ‘For unless he will acknowledge it, here before this inquest, his confession is not proved. You can advise the jury to accept it on presumption, but presumption by itself is insufficient proof. Have you no witnesses?’
‘Aye, my lord,’ Crichton sighed. ‘I call the pursuer, George Barr.’
Richard rose to his feet. ‘I object to that witness,’ he remarked lazily.
The justice peered at him suspiciously. ‘Indeed? On what possible ground?’
‘On the grounds of … feeble-mindedness?’ ventured Richard.
‘George Barr is the pursuer,’ Crichton answered wearily. ‘If he were feeble-minded, we should not have had the case.’
‘That is correct. We should not,’ Richard confirmed.
Richard was overruled, and Elspet Barr’s father was brought to the bar, where he swore on oath that Simon was a consummate, unconscionable rogue, a whoremonger, swingeour, fanatic and thief. But beyond that, he had proof of no specifics, and Richard soon established that he had not seen his son-in-law in years. What he knew beyond a doubt, beyond a doubt, he could not prove.
Since Crichton had no further proof, Richard addressed the jury:
‘Good men of inquest, you have heard my lord Crichton put forward as probation a confession, which you have heard the defendant disown. I ask you to disregard this confession, for it was not made in your hearing, nor, in your presence, has the panel owned to it; therefore, the confession is not proved, and to admit it as probation of the charge were wilful error on assize. You have heard, too, the testimony of a witness put forward as probation, yet that witness told you nothing of what happened on the stairs. He cannot tell you what did happen, for he was not there. Therefore, the evidence he gives was mere presumption, and you cannot convict on presumption alone; to do so would be error on assize. Now my lord Crichton here will try to intimidate you, and to convince you that the opposite is true; that because you may presume guilt here, then you must convict. But I would bid you ask yourselves, where are the proofs? My lord Crichton will say, the proof is Simon Pettigrew’s confession, that he made before the magistrate. Ask yourselves, though, has he confessed to you? The answer must be: he has not. Ask yourselves, then, has he owned his confession? The answer must be: he has not. And whatever you may think of this, whatever you presume, ask yourselves, did my lord Crichton prove the panel killed his wife. And, if he did not, you must acquit.’
Robert Crichton stood up heavily. ‘G
ood men of assize,’ he stated, ‘this man has confessed, and you heard his confession. And that he has confessed, and then retracted his confession, is a ploy made by his advocate, to baffle and confuse. You know this man. You know his guilt. And to determine otherwise were error on assize.’
The justice smiled. ‘Now, we’re done. Unless there is a question?’ He glanced at the assize, with a blankness of expression that suggested ‘Surely not.’ A stout man in leggings began to raise his hand, before he caught the judge’s eye, and quickly put it down. The justice nodded sagely. ‘Well and good. The inquest may retire.’
As the jury trooped out, Richard joined Hew at the side of the bench. ‘Now we must wait in hope of a sensible verdict,’ he whispered. ‘That lies in the jury’s hands, for every case is lost or won, in the moment of selection of assize. The jury is the advocate’s best ally, and his greatest threat. The most important thing is to learn to read the jury, and to understand their minds before they are sworn in,’ he went on to explain. ‘Take great care in making objections. They are not formalities to delay the trial, but often form the key to a defence. Of those summonsed, you may turn away two thirds, without giving a cause.’
‘Are there always fifteen jurors?’ Hew inquired.
‘There may be several more or less. But an odd number is preferred, ensuring a majority. A single vote is sufficient to convict or acquit. The verdict of each man is recorded against his name, and he must own to it. In case of wilful error, each man is accountable, and may not hide his face among the crowd. As to what you look for, in objecting to your jury, that will vary case by case. For sometimes you require them to be stupid, easily bamboozled and perplexed, and at other times you want a careful jury, that will comprehend your subtleties and follow through the process of the law. At all times, you will want a jury partial to your client. In this, the defence is at a disadvantage, since the lord advocate draws up the list, and he, in his turn, will object to those who appear to favour your client, even as you are objecting to those who seem to favour his. And, in as much as the pursuer must pay their expenses, they are in his pocket even before it begins.’
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