A great crowd clogged the court benches and galleries, so much so that one could not have swung a thought, much less a cat, about one. The plain attitude of these blue-bonneted folk was that the accused and the troubles of Scotland were identical. It is fatal to become a symbol.
Beneath the bench was the lawyers’ table, where now court servants were putting quills and papers and books. Already the prosecution is gathering about their end of the table,—a long string of grave lawyers, under the leadership of Procurator Fiscal, Alexander Higgins. And who will stand up for the poor sailormen? An astounding array, a most impressive alignment of legal ability will. Sir David Cunningham heads the defense, but he will soon drop out and be succeeded by Sir David Thoirs, with whom will be Sir Walter Pringle, Mr. David Forbes, Mr. George Alexander, Mr. John Spotswood and Mr. John Elphinstone. Why, these are names of as much professional weight as are those who will oppose them on behalf of the Crown.
How inspiring to behold this important company of lawyers quick to the defense of the forlorn strangers by the power of a pure love of justice and a jealous wardenship of the bright honor of the Scottish Bar! For how else could these sailors—worth not a penny between them, and with their captain but little wealthier—call to their side these advocates who had won even the dignities of knighthood in the contests of the forum?
For a distressingly cold matter of fact, however, there were several other motives which conceivably prompted the efforts of the gentlemen for the defense, and a way that you would never guess was the one by which they entered the court as procurators (attorneys) for the defense, and that was—but wait, let us not anticipate.
Sir David Cunningham smiled at Sir David Thoirs and presented his snuffbox; Sir David Cunningham bowed to the Procurator Fiscal and did not offer snuff. Mr. Procurator Fiscal could afford to overlook a little thing like that, for he felt this was to be his hour.
Presently the macers came in and the people shuffled to their feet and stood while the Judge of the High Court of Admiralty with his string of “assessors,” or specially appointed assistant judges, all in their scarlet-dappled gowns, solemnly embanked themselves on the seat of authority.
The judges sat; every one but the prisoners sat, and then Mr. Procurator Fiscal, née Higgins, arose, conscious of the spotlight, and with orotund voice emptied himself of two tremendous indictments, alike in word and effect; one directed at one group of defendants and the other shafted at another group. Canny fellow, this fiscal; he split the defendants so that, if by mischance one section were cleared, he might have better luck with the other. Evidently he was an impartial and fair-minded prosecutor.
If it were not that many men and perhaps some women have been hanged on them, those old indictments would be the law’s best joke. Here is what might be called the Fiscal’s charge proper:
“That upon one or other of the days of the months of February, March, April or May, in the year 1703,” the Worcester “did encounter or meet with another ship or vessel, sailed by its own men or crew, upon the coast of Malabar, near Calicut, and the said vessel bearing a red flag, and having English or Scots aboard, at least such as spoke the English language”; which red-ensigned ship Captain Thomas Green and his crew first attacked with their sloop, and afterwards with the Worcester; that the defense was overcome, the defenders slain, their bodies cast into the sea and their ship looted.
Notice the fine explicitness of this indictment. On any one of the days of four months, in a vaguely indicated region, the defendants attacked a ship carrying a red flag and manned by English-speaking sailors. The implication was to be gathered that the ship was the Speedy Return; but the prosecution could not quite go so far as to paint a name on the bows of the red-flagged ship.