"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.