by Edward Cline
Neither Skelly nor Redmagne knew what to make of these arrangements, for Pannell had not spoken a word to them, neither in Gwynnford, nor on the coaster, nor in the Falmouth jail. The only personal attention the Commissioner paid them was when, outside the cell in which he was to be detained, he returned Skelly’s bullet-damaged copy of Hyperborea, and said to Mr. Fix, “Remind me to get him some candles.”
Four days later, Jack Frake was removed from the jail and installed in a cell of his own in the Falmouth Parish workhouse across the Fal River. He was not given a chance to talk to Skelly or Redmagne. Pannell gave him the suit of clothes he had worn to London in July, and made similarly thoughtful arrangements with the warden of the institution. “You’re not to be worked here, Master Frake, as are the other poor devils in this place. The warden even has a library, and was pleased to learn that you can read. He’s willing to lend you whatever you like.”
“Why am I here?” demanded the boy.
“You are being considered for special treatment by the court, because of your age. For this reason, you will not be charged with the others. So you will not be incarcerated with them. They’re doomed. You needn’t be.”
“Why?”
“That remains for you to see.”
“I want to die with them!”
“With dignity?” chuckled Pannell. “There’s nothing dignified in hanging from a gallows, Master Frake. Why, I’ll even persuade Sheriff Grynsmith to let you watch, so you may judge for yourself.”
“Take me back to my friends!”
Pannell shook his head. “Enjoy your stay here, Master Frake.” He turned and walked out. An assistant warden swung the oaken door shut.
When Skelly and Redmagne learned that Jack Frake was not being returned to the jail, they demanded an explanation. The jailer delivered this demand to Pannell, who went to the jail and told the men, who had been strolling together around the prison yard, “The boy has a chance to live, if he cooperates on an altogether different matter. And he will cooperate. That is all I can tell you.” He smiled. “Incidentally, Mr. Skelly, I have had your sloop, The Hasty Hart, impounded. Your pilot has eluded capture. You may take some consolation in that. But it is a fine vessel. As you were the only actual owner, you have forfeited title to it. The registered owner, a Mr. James Grier, I learned, was an alderman in Marvel who died some years ago, and who had never been to sea in his life.” Pannell smiled. “I must compliment you on your sense of humor in that regard.” Then he assumed his usual doleful look. “There are no other claimants to the property to be fined and punished. I will convince the Customs Board not to order its dismemberment, as is the current policy with seized vessels. It would make an excellent patrol craft and a valuable addition to our pitiful Customs fleet. I have recommended that it be renamed The Spectre.” He paused. “Otherwise, sirs, how is Mr. Binns, the jailer, treating you?”
“We’ve no complaint but one,” said Redmagne.
“I must insist on the leg-irons,” said Pannell.
“No, the complaint is that you did not assault the caves two weeks earlier, on the 25th of October — St. Crispin’s Day. We would have appreciated the honor and the irony.”
Pannell squinted in bafflement.
Skelly said, “What he means, sir, is that you denied him the chance to deliver Henry the Fifth’s speech to our late colleagues. It was a speech they well deserved to hear. Mine was a poor substitute.”
Pannell screwed up his face in disgust. “Is nothing exempt from your mockery?”
“We are very much in earnest. You saw that in Marvel,” said Redmagne. “But, as to complaints, were we emissaries of the King, we could not expect better treatment.”
“Not ‘our’ King, Mr. Smith?”
“Not mine,” quipped Redmagne. “Not anyone’s, in fact. There are those, however, who feel the need of one. They have our compassion.”
This answer caused Pannell to turn to Skelly and ask a question he had not wanted to ask. “You had opportunity to escape from those caves, Mr. Skelly. You and all those others. Why didn’t you?”
Skelly answered with a deceptively serene smile. “The Crown robbed me once, with ease. It proposed to rob me again, and running suited neither me nor the others.” Skelly paused. “I wanted to protect my property, that’s all, Mr. Pannell.”
Pannell involuntarily scoffed. “You knew what the outcome would be. You could be dead now, as the others are. What would have been the point of protecting anything then?”
“I’ve lived fully and freely as a man, sir. It was time I risked dying like one.”
“That makes no sense,” said Pannell with a superior air.
“What he means, sir,” said Redmagne, “is that it is often preferable to die, and thus give one’s life and possessions meaning, than to run, or submit, and render one’s life and possessions meaningless.” He paused, then mused, “To live free, or die.”
“That would have made an appropriate motto for Ambrose’s colors,” remarked Skelly sadly, “where he had painted out the King’s arms.”
“Thank you. It could be taken in one of two ways: as a warning, or as a final, personal set of options.”
The two prisoners wandered away from Pannell, talking. The Commissioner pursed his mouth contemptuously and watched them. He felt slighted by having been forgotten, but could not decide whether his sense of oblivion stemmed from the slight or the men’s words. “Oh, you’ll die, all right!” he muttered to himself. “You may be sure of that!” Then he turned and walked back into the prison.
Chapter 26: The Plea
A GRAND JURY WAS CONVENED IN DECEMBER ON THE ORDER OF JAMES Wicker, Justice of the Peace and chief magistrate of Cornwall, much to the consternation of the jurors, who were preoccupied with holiday concerns. The jury met in Falmouth, and Wicker presided. The accused were not present during the proceedings, at which evidence of the Portreach run was presented by Simon Haslam, the prosecutor, and closely examined. Redmagne and Skelly were brought into the courtroom only to hear that the grand jury had returned an indictment for smuggling, resisting arrest, and complicity in the deaths of deputized soldiery in the pursuit of their duties, and that the magistrate had endorsed the summary indictment as a true bill. There was the matter of the deaths of two Revenue officers during the raid on Skelly’s hideout in Fowey in September 1740, but the magistrate set this aside until witnesses and evidence could be secured.
Skelly did not seek an attorney for the grand jury or the trial. He agreed to allow Redmagne to act as counsel. Redmagne, with some legal training in his past, claimed the right to represent himself and his fellow prisoner in court. This right was recognized by Wicker. When asked by the magistrate to answer the indictments, Redmagne stepped forward, the iron chain linking the braces around his legs clanking on the bare floor. He said, “We plead self-defense, milord.”
The prosecutor, the clerks, the jurors, and the bailiffs all stopped what they were doing or thinking, and stared at Redmagne. Henoch Pannell, sitting alone in a spectators’ gallery, gaped at Redmagne with astonishment. This was an unexpected ruse. He glanced anxiously at Wicker.
Wicker blinked, twice. “Excuse me?” he asked, not certain that he had heard the words. A plea of guilty would have resulted in immediate judgment and sentencing. A plea of not guilty would have meant a trial. Wicker had never before heard this particular plea in his thirty years on the bench.
“We plead self-defense. We were assaulted by agents of the Crown, and we resisted.”
The prosecutor, his mouth open in near speechlessness, was outraged, and recovered from his shock enough to begin assailing Redmagne with some well-chosen, ungentlemanly epithets, but Wicker waved him down. “Even if the court recognized so ludicrous a plea, Mr. Smith,” he said, “it would hardly apply to the smuggling charges.”
“Begging your pardon, milord, but, yes, it would. The taxes which we sought to avoid violate our Constitutional rights to property and the freedom to trade that property without hindranc
e or penalty.”
Wicker sat back and frowned in tentative amusement. “Explain that, please, Mr. Smith.”
“All taxation is assault. It is merely a more efficient, insidious form of theft, but essentially the same as that practiced by highwaymen. We smuggled our goods past the thieves. The thieves, however, found us out, and assaulted us. We fought back, as is our right.”
Wicker shook his head once, and wagged a finger. “’Tis not your right, sir, and the Constitution is not an issue here. You must answer the charges of the indictment. Guilty, or no?”
Redmagne glanced at Skelly, who stood behind a railing surrounded by bailiffs, then shook his head. “We do not recognize the legitimacy of the charges as they stand, milord. We have written ignoramus over that bill. Our Constitution is the only one in Europe which protects one’s property and freedom to trade.” He smiled with a wickedness that chilled Wicker to the core. “Either that means something in fact, or it is a cruel fiction amended at the caprice and convenience of the Crown.” He stood and waited for the magistrate to reply.
Wicker asked again, looking past Redmagne at the man in the dock, “How do you plead, prisoner?”
Skelly said, “Counsel speaks my mind, milord.” Redmagne smiled again, bowed, and stepped back to rejoin his friend.
Wicker would not recognize the plea, and at first thought of treating Redmagne and his co-defendant as standing “mute of malice,” since Redmagne refused to answer now. In earlier times, within Wicker’s own memory, a refusal by a defendant to answer an indictment was interpreted by the court as standing “mute of malice” or as “visitation of God,” and the court would order an inquiry to determine which was the case. If a prisoner was found to have stood “visited of God,” a trial was ordered. A finding of standing “mute of malice,” however, resulted in the prisoner being compelled to undergo peine forte et dure, or ordeal by pain, to establish his innocence or guilt. But this was no longer the practice; that finding also meant trial by jury. It was a significant advance in jurisprudence.
Words had been spoken in answer to the charges; this Wicker could not deny. But he was under pressure to expedite the matter. And his mind, calcified by decades of passing judgment on formulary pleas, stratagems and arguments, could not find a hole in his legal knowledge in which to fit the peg of “self-defense.” Wicker sweated under his wig. He was in a panic to block a dangerous appeal to the Constitution, one which he did not want to contemplate and did not want the responsibility of admitting. There was no precedent for it, and the issues the prisoner had raised foreshadowed wider matters which caused him to feel the first twinges of a paralyzing fear.
Still, the device of standing “mute of malice” was serviceable. After a long moment of thought, during which he felt every set of eyes in the courtroom on him, he spoke some words about the plea standing in nullity, and treated Redmagne’s technical refusal to answer the charges as grounds for proceeding with a trial, resorting to the paradoxical fiction that Redmagne had both stood “mute of malice” and pleaded “not guilty” on behalf of himself and the other prisoner.
The prisoners were arraigned. Jack Frake’s name was not spoken by the magistrate. Both Redmagne and Skelly thought that this was odd, but did not question the omission.
Following the indictments, Wicker scheduled a special assize in January, the day after Twelfth Night, for the joint trial of Osbert Augustus Magnus Skelly and John Smith. And in confidential letters to the Lord Chancellor and the Solicitor-General, to which he appended documents pertaining to the case together with a précis of the incident, he asked that a special magistrate be dispatched to the assize, as Skelly and his men were too popular, and the expected verdicts and subsequent executions might endanger his life, or at least render his continued tenure in Falmouth impracticable. He suggested the names of colleagues on the civil court circuit who had criminal trial backgrounds.
Henoch Pannell persuaded the Lord Lieutenant of Cornwall to furnish troops to guarantee the orderly conduct of the trial and of the expected executions. And he made further arrangements for a second trial, one which he hoped would be just as sensational as the first.
* * *
One morning after the grand jury indictments, at the end of the first week of December, Isham Leith bought passage on a coaster from Gwynnford to Falmouth. It was only a day’s trip, and he told his wife, Huldah, that he had business there and would be back the evening of the next day.
In Falmouth, he strode up the street that paralleled the river and went directly to the Revenue Bursar’s office in the mayor’s palace. Here he told a clerk his business, and handed the man the letter of claim. There were other men waiting in the anteroom, but after a curious raising of his eyebrows, the clerk seemed to recognize his name on the document and rushed back into the Bursar’s office. He emerged in a minute and asked Leith to wait on one of the benches in the anteroom. “It won’t be more than a quarter hour, sir. There’s so much work to do this time of year.” Another clerk hurriedly passed through the anteroom and went out. Leith lit a pipe and waited, listening to the other visitors trading hearsay about Skelly and the indictments.
Twenty minutes later, a stocky, florid-faced man came into the room with two tipstaffs in tow, accompanied by the second clerk and, to Leith’s surprise, Henoch Pannell. The Commissioner pointed to Leith, and the large man approached him. “Isham Leith, of Trelowe?”
Leith rose slowly. “Yes, sir.”
The man produced a folded sheet of paper. “I have a warrant for your arrest for the murder of Reverend Robert Parmley, rector of St. Gwynn, in April of 1744. Submit to cuffs, and come along quietly.” The tipstaffs had come behind him, and each laid a hand on his shoulders.
The pipe dropped from Leith’s mouth. He shouted, pointing a finger at Pannell, “You great pile of sheep droppin’s! You lied!”
Pannell smiled with a shrug. “May I introduce Mr. Humphrey Grynsmith, sheriff of Falmouth? You’re in his custody now, not mine.”
“Didn’t my help count for nothin’?” wailed Leith.
“It counted for much, Mr. Leith. You will get your fifty guineas, if you don’t first confess under interrogation, and I understand that Mr. Grynsmith is every bit as good in that art as his colleagues at Newgate. Or if you’re not convicted.”
“Why didn’t you have me arrested in Gwynnford?”
“What?” chuckled Pannell, enjoying the man’s predicament. “And embarrass you in front of your many friends there?” He shook his head. “I know it’s been said of me that I lack merriment. But I do like to play my little jokes now and then.” He paused. “Your real question, Mr. Leith, should have been: Why did I raise your hopes, why did I allow you to think you could commit a heinous crime and escape punishment? Well, it was my prerogative. You are a little man, but you will serve a large purpose.”
* * *
Two weeks after the indictments, a day before Christmas Eve, several men met in the evening in the study of the chief magistrate’s country house near Falmouth. They were James Wicker; Henoch Pannell; Fulke Treverlyn, a Crown prosecutor from London; and Lord Hugo Twycross, the designated presiding magistrate, who had been hastily drafted from his circuit court duties to handle the touchy case in response to Wicker’s urgent letter.
Also present was the King’s Proctor, Armiger Edgecombe, who suddenly appeared in Twycross’s wake in a coach of his own. Edgecombe had yet to make the purpose of his visit known to his host, but Wicker dared not ask him his business. The King’s Proctor, at that time, represented the sovereign when he wished to intervene in certain cases in which especial church matters were at issue, though his personal involvement would be seen as indelicate or controversial. Neither Treverlyn nor Wicker could imagine what interest the King could have in the Skelly case, though they both noted that Twycross and Pannell did not share their assumption that Edgecombe’s presence was anomalous.
“It will be easy to dispose of the whole lot of these scum,” said Treverlyn, standing before
the fireplace, “but we want no complications. Mr. Pannell, you are certain that your witness will cooperate in this matter?”
“Yes, he’ll cooperate,” said Pannell, standing opposite him. He had been offered an armchair by Wicker, but he was too excited to sit. “He doesn’t know it yet, but he’ll cooperate.”
“I’ve reviewed the evidence you have against this other party, and it looks fool-proof. An indictment is guaranteed. The local prosecutor may handle the Crown’s case. Who would he be, milord?” asked Treverlyn, turning to Wicker.
“Simon Haslam,” said the magistrate. “He presented the Crown’s case to the grand jury. But, wait,” said Wicker. “I am the chief justice here, and I would need to call a new grand jury to indict this person. I refuse to do it, at least not so hot on the heels of the Skelly matter. There are not so many qualified jurors for a grand jury or a trial in these parts that they wouldn’t begin talking amongst themselves and see through it all. It would be a travesty of justice!”