CHAPTER II.
On entering the court, I found that the business had commenced. An enormous raw-boned fellow, with a shock of the fieriest hair, and hands of such dimensions that a mere glimpse of them excited unpleasant sensations at your windpipe, was stationed at the bar, to which, from previous practice, he had acquired a sort of prescriptive right.
"James M'Wilkin, or Wilkinson, or Wilson," said the presiding judge, in a tone of disgust which heightened with each successive alias, "attend to the indictment which is about to be preferred against you."
And certainly, if the indictment contained a true statement of the facts, James M'Wilkin, or Wilkinson, or Wilson was about as thoroughpaced a marauder as ever perambulated a common. He was charged with sheep-stealing and assault; inasmuch as, on a certain night subsequent to the Kelso fair, he, the said individual with the plural denominations, did wickedly and feloniously steal, uplift, and away take from a field adjoining to the Northumberland road, six wethers, the property, or in the lawful possession of, Jacob Gubbins, grazier, then and now or lately residing in Morpeth; and moreover, on being followed by the said Gubbins, who demanded restitution of his property, he, the said M'Wilkin, &c., had, in the most brutal manner, struck, knocked down, and lavished divers kicks upon the corporality of the Northumbrian bumpkin, to the fracture of three of his ribs, and otherwise, to the injury of his person.
During the perusal of this formidable document by the clerk, M'Wilkin stood scratching his poll, and leering about him as though he considered the whole ceremony as a sort of solemn joke. I never in the course of my life cast eyes on a more nonchalant or unmitigated ruffian.
"How do you say, M'Wilkin," asked the judge; "are you guilty or not guilty?"
"Not guilty, aff course. D'ye tak me for a fule?" and M'Wilkin flounced down upon his seat, as though he had been an ornament to society.
"Have you a counsel?" asked the judge.
"De'il ane—nor a bawbee," replied the freebooter.
Acting upon the noble principle of Scottish jurisprudence, that no man shall undergo his trial without sufficient legal advice, his lordship in the kindest manner asked me to take charge of the fortunes of the forlorn M'Wilkin. Of course I made no scruples; for, so long as it was matter of practice, I should have felt no hesitation in undertaking the defence of Beelzebub. I therefore leaned across the dock, and exchanged a few hurried sentences with my first client.
"Why don't you plead guilty?"
"What for? I've been here before. Man, I'm thinking ye're a saft ane!"
"Did you not steal the sheep."'
"Ay—that's just the question. Let them find that out."
"But the grazier saw you?"
"I blackened his e'es."
"You'll be transported to a dead certainty."
"Deevil a fears, if ye're worth the price o' half a mutchkin. I'm saying—get me a Hawick jury, and it's a' richt. They ken me gey and weel thereabouts."
Although I was by no means satisfied in my own mind that an intimate acquaintance with M'Wilkin and his previous pursuits would be a strong recommendation in his favour to any possible assize, I thought it best to follow his instructions, and managed my challenges so well that I secured a majority of Hawickers. The jury being sworn in, the cause proceeded; and certainly, before three witnesses had been examined, it appeared to me beyond all manner of doubt, that, in the language of Tom Campbell, my unfortunate client was
"Doom'd the long coves of Sydney isle to see,"
as a permanent addition to that cultivated and Patagonian population. The grazier stood to his story like a man, and all efforts to break him down by cross-examination were fruitless. There was also another hawbuck who swore to the sheep, and was witness to the assault; so that, in fact, the evidence was legally complete.
Whilst I was occupied in the vain attempt to make Gubbins contradict himself, there had been a slight commotion in the court-room. On looking round afterwards, I was astonished to behold my friend Strachan seated in the magistrate's box, next to a very pretty and showily-dressed woman, to whom he was paying the most marked and deliberate attention. On the other side of her was an individual in a civic chain, whose fat, pursy, apoplectic appearance, and nose of the colour of an Orleans plum, thoroughly realised my mental picture of the Bailie. His small, blood-shot eyes twinkled with magisterial dignity and importance; and he looked, beside Miss Percy—for I could not doubt that it was she—like a satyr in charge of Florimel.
The last witness for the crown, a very noted police officer from Glasgow, was then put into the box, to prove a previous conviction against my friend M'Wilkin. This man bore a high reputation in his calling, and was, indeed, esteemed as a sort of Scottish Vidocq, who knew by headmark every filcher of a handkerchief between Caithness and the Border. He met the bold broad stare of the prisoner with a kind of nod, as much as to assure him that his time was very nearly up; and then deliberately proceeded to take a hawk's-eye view of the assembly. I noticed a sort of quiet sneer as he glanced at the Magistrate's box.
"Poor Strachan!" thought I. "His infatuation must indeed be palpable, since even a common officer can read his secret in a moment."
I might just as well have tried to shake Ailsa Craig as to make an impression upon this witness; however, heroically devoted to my trust, I hazarded the attempt, and ended by bringing out several additional tales of turpitude in the life and times of M'Wilkin.
"Make room there in the passage! The lady has fainted," cried the macer.
I started to my feet, and was just in time to see Miss Percy conveyed from the court in an apparently inanimate state, by the Bailie and the agitated Strachan.
"Devilish fine-looking woman that!" observed the Advocate-Depute across the table. "Where did your friend Mr Strachan get hold of her?"
"I really don't know. I say—are you going to address the jury for the crown?"
"It is quite immaterial. The case is distinctly proved, and I presume you don't intend to speak?"
"I'm not so sure of that."
"Oh, well,—in that case I suppose I must say a word or two. This closes the evidence for the crown, my lord," and the Depute began to turn over his papers preparatory to a short harangue.
He had just commenced his speech, when I felt a hand laid upon my shoulder. I looked around: Strachan was behind me, pale and almost breathless with excitement.
"Fred—can I depend upon your friendship?"
"Of course you can. What's the row?"
"Have you ten pounds about you?"
"Yes—but what do you mean to do with them? Surely you are not going to make a blockhead of yourself by bolting?"
"No—no! give me the money—quick!"
"On your word of honour, Tom?"
"On my sacred word of honour!—That's a good fellow—thank you, Fred;" and Strachen pocketed the currency. "Now," said he, "I have just one other request to make."
"What's that?"
"Speak against time, there's a dear fellow! Spin out the case as long as you can, and don't let the jury retire for at least three quarters of an hour. I know you can do it better than any other man at the bar."
"Are you in earnest, Tom?"
"Most solemnly. My whole future happiness—nay, perhaps the life of a human being depends upon it."
"In that case I think I shall tip them an hour."
"Heaven reward you, Fred! I never can forget your kindness!"
"But where shall I see you afterwards?"
"At the hotel. Now, my dear boy, be sure that you pitch it in, and, if possible, get the judge to charge after you. Time's all that's wanted—adieu!" and Tom disappeared in a twinkling.
I had little leisure to turn over the meaning of this interview in my mind, for the address of my learned opponent was very short and pithy. He merely pointed out the clear facts, as substantiated by evidence, and brought home to the unhappy M'Wilkin; and concluded by demanding a verdict on both charges contained in the indictment against the prisoner.
"Do you wish to say any thing, sir?" said the judge to me, with a kind of tone which indicated his hope that I was going to say nothing. Doubtless his lordship thought that, as a very young counsel, I would take the hint; but he was considerably mistaken in his man. I came to the bar for practice—I went on the circuit with the solemn determination to speak in every case, however desperate; and it needed not the admonition of Strachan to make me carry my purpose into execution. What did I care about occupying the time of the court? His lordship was paid to listen, and could very well afford to hear the man who was pleading for M'Wilkin without a fee. I must say, however, that he looked somewhat disgusted when I rose.
A first appearance is a nervous thing, but there is nothing like going boldly at your subject. "Fiat experimentum in corpore vili," is a capital maxim in the Justiciary Court. The worse your case, the less chance you have to spoil it; and I never had a worse than M'Wilkin's.
I began by buttering the jury on their evident intelligence and the high functions they had to discharge, which of course were magnified to the skies. I then went slap-dash at the evidence; and, as I could say nothing in favour of my client, directed a tremendous battery of abuse and insinuation against his accuser.
"And who is this Gubbins, gentlemen, that you should believe this most incredible, most atrocious, and most clumsy apocrypha of his? I will tell you. He is an English butcher—a dealer in cattle and in bestial—one of those men who derive their whole subsistence from the profits realised by the sale of our native Scottish produce. This is the way in which our hills are depopulated, and our glens converted into solitudes. It is for him and his confederates—not for us—that our shepherds watch and toil, that our herds and flocks are reared, that the richness of the land is absorbed! And who speaks to the character of this Gubbins? You have heard the pointless remarks made by my learned friend upon the character of my unfortunate client; but he has not dared to adduce in this court one single witness in behalf of the character of his witness. Gentlemen, he durst not do it! Gubbins has deponed to you that he bought those sheep at the fair of Kelso, from a person of the name of Shiells, and that he paid the money for them. Where is the evidence of that? Where is Shiells to tell us whether he actually sold these sheep, or whether on the contrary they were not stolen from him? Has it been proved to you, gentlemen, that M'Wilkin is not a friend of Shiells—that he did not receive notice of the theft—that he did not pursue the robber, and, recognising the stolen property by their mark, seize them for the benefit of their owner? No such proof at least has been led upon the part of the crown, and in the absence of it, I ask you fearlessly, whether you can possibly violate your consciences by returning a verdict of guilty? Is it not possible—nay, is it not extremely probable, that Gubbins was the actual thief? Was it not his interest, far more than M'Wilkin's, to abstract those poor unhappy sheep, because it is avowedly his trade to fill the insatiable maw of the Southron? And in that case, who should be at the bar? Gubbins! Gubbins, I say, who this day has the unparalleled audacity to appear before an enlightened Scottish jury, and to give evidence which, in former times, might have led to the awful consequence of the execution of an innocent man! And this is what my learned friend calls evidence! Evidence to condemn a fellow-countryman, gentlemen? No—not to condemn a dog!"
Having thus summarily disposed of Gubbins, I turned my artillery against the attendant drover and the policeman. The first I indignantly denounced as either an accomplice or a tool: the second I smote more severely. Policemen are not popular in Hawick; and, knowing this, I contrived to blacken the Scottish Vidocq as a bloodhound.
But by far the finest flight of fancy in which I indulged was reserved for the peroration. I was not quite sure of the effect of my commentary on the evidence, and therefore thought it might be advisable to touch upon a national raw.
"And now, gentlemen," said I, "assuming for one moment that all my learned friend has said to you is true—that the sheep really belonged to this Gubbins, and were taken from him by M'Wilkin—let us calmly and deliberately consider how far such a proceeding can be construed into a crime. What has my unfortunate client done that he should be condemned by a jury of his countrymen? What he stands charged with is simply this—that he has prevented an Englishman from driving away the produce of our native hills. And is this a crime? It may be so, for aught I know, by statute; but sure I am, that in the intention, to which alone you must look, there lies a far deeper element of patriotism than of deliberate guilt. Think for one moment, gentlemen, of the annals of which we are so proud—of the ballads still chanted in the hall and in the hamlet—of the lonely graves and headstones that are scattered all along the surface of the southern muirs. Do not these annals tell us how the princes and the nobles of the land were wont to think it neither crime nor degradation to march with their retainers across the Borders, and to harry with fire and sword the fields of Northumberland and Durham? Randolph and the Bruce have done it, and yet no one dares to attach the stigma of dishonour to their names. Do not our ballads tell how at Lammas-tide,
'The doughty Earl of Douglas rade
Into England to fetch a prey?'
And who shall venture to impeach the honour of the hero who fell upon the field of Otterbourne? Need I remind you of those who have died in their country's cause, and whose graves are still made the object of many a pious pilgrimage? Need I speak of Flodden, that woful place where the Flowers of the Forest were left lying in one ghastly heap around their king? Ah, gentlemen! have I touched you now? True, it was in the Olden time that these things were done and celebrated; but remember this, that society may change its place, states and empires may rise and be consolidated, but patriotism still lives enduring and undying as of yore! And who shall dare to say that patriotism was not the motive of M'Wilkin? Who shall presume to analyse or to blame the instinct which may have driven him to the deed? Call him not a felon—call him rather a poet; for over his kindling imagination fell the mighty shadow of the past. Old thoughts, old feelings, old impulses, were burning in his soul. He saw in Gubbins, not the grazier, but the lawless spoiler of his country; and he rose, as a Borderer should, to vindicate the honour of his race. He may have been mistaken in what he did, but the motive, at least, was pure. Honour it then, gentlemen, for it is the same motive which is at all times the best safeguard of a nation's independence; and do honour likewise to yourselves by pronouncing a unanimous verdict of acquittal in favour of the prisoner at the bar!"
By the time I had finished this harangue, I was wrought up to such a pitch of enthusiasm, that I really considered M'Wilkin in the light of an extremely ill-used individual, and the tears stood in my eyes as I recapitulated the history of his wrongs. Several of the jury, too, began to get extremely excited, and looked as fierce as falcons when I reminded them of the field of Flodden. But my hopes were considerably damped when I heard the charge of his lordship. With all respect for the eminent Senator who that day presided on the bench, I think he went rather too far when he designated my maiden-effort a rhapsody which could only be excused on account of the inexperience of the gentleman who uttered it. Passing from that unpleasant style of stricture, he went seriatim over all the crimes of M'Wilkin, and very distinctly indicated his opinion that a more consummate ruffian had seldom figured in the dock. When he concluded, however, there was a good deal of whispering in the jury-box, and at last the gentlemen of the assize requested permission to retire.
"That was a fine flare-up of yours, Freddy," said Anthony Whaup, the only other counsel for the prisoners upon the circuit. "You came it rather strong, though, in the national line. I don't think our venerable friend overhead half likes your ideas of international law."
"Why, yes—I confess he gave me a tolerable wigging. But what would you have me do? I must have said something."
"Oh, by Jove, you were perfectly right! I always make a point of speaking myself; and I can assure you that you did remarkably well. It was a novel view, but decidedly ingenious, and may lead to great results. If that fellow gets off, you may rely upon it there will be some bloodshed again upon the Border."
"And a jolly calendar, of course, for next circuit. I say, Authony,—how many cases have you got?"
"Two thefts with habit and repute, a hame-sucken, rather a good forgery, and an assault with intent to commit."
"Long?"
"Rather—but poor pay. I haven't sacked more than nine guineas altogether. Gad!" continued Anthony, stretching himself, "this is slow work. I'd rather by a great deal be rowing on the canal."
"Hush! here come the jury."
They entered, took their seats, and each man in succession answered to his name. I stole a glance at M'Wilkin. He looked as leonine as ever, and kept winking perseveringly to the Hawickers.
"Now, gentlemen," said the clerk of court, "what is your verdict?"
The foreman rose.
"The jury, by a majority, find the charges against the prisoner not proven."
"Hurrah!" shouted M'Wilkin, reckless of all authority. "Hurrah! I say—you counsellor in the wig—ye shanna want a sheep's head thae three years, if there's ane to be had on the Border!"
And in this way I gained my first acquittal.