The King’s Counsel pointed to the woman’s declaration; to which the counsel replied—“A production concocted in a moment of terror and agony, and which approached to insanity,” he said, “his learned brother well knew was no sound evidence against the party who emitted it. It was true, that a judicial confession, in presence of the Justices themselves, was the strongest of all proof, insomuch that it is said in law, that ‘in confitentem nullae sunt partes judicis.’ But this was true of judicial confession only, by which law meant that which is made in presence of the justices, and the sworn inquest. Of extrajudicial confession, all authorities held with the illustrious Farinaceus and Matthaeus, ‘confessio extrajudicialis in se nulla est; et quod nullum est, non potest adminiculari.’ It was totally inept, and void of all strength and effect from the beginning; incapable, therefore, of being bolstered up or supported, or, according to the law phrase, adminiculated, by other presumptive circumstances. In the present case, therefore, letting the extrajudicial confession go, as it ought to go, for nothing,” he contended, “the prosecutor had not made out the second quality of the statute, that a live child had been born; and that, at least, ought to be established before presumptions were received that it had been murdered. If any of the assize,” he said, “should be of opinion that this was dealing rather narrowly with the statute, they ought to consider that it was in its nature highly penal, and therefore entitled to no favourable construction.”
He concluded a learned speech, with an eloquent peroration on the scene they had just witnessed, during which Saddletree fell fast asleep.
It was now the presiding Judge’s turn to address the jury. He did so briefly and distinctly.
“It was for the jury,” he said, “to consider whether the prosecutor had made out his plea. For himself, he sincerely grieved to say, that a shadow of doubt remained not upon his mind concerning the verdict which the inquest had to bring in. He would not follow the prisoner’s counsel through the impeachment which he had brought against the statute of King William and Queen Mary. He and the jury were sworn to judge according to the laws as they stood, not to criticise, or evade, or even to justify them. In no civil case would a counsel have been permitted to plead his client’s case in the teeth of the law; but in the hard situation in which counsel were often placed in the Criminal Court, as well as out of favour to all presumptions of innocence, he had not inclined to interrupt the learned gentleman, or narrow his plea. The present law, as it now stood, had been instituted by the wisdom of their fathers, to check the alarming progress of a dreadful crime; when it was found too severe for its purpose it would doubtless be altered by the wisdom of the Legislature; at present it was the law of the land, the rule of the Court, and, according to the oath which they had taken, it must be that of the jury. This unhappy girl’s situation could not be doubted; that she had borne a child, and that the child had disappeared, were certain facts. The learned counsel had failed to show that she had communicated her situation. All the requisites of the case required by the statute were therefore before the jury. The learned gentleman had, indeed, desired them to throw out of consideration the panel’s own confession, which was the plea usually urged, in penury of all others, by counsel in his situation, who usually felt that the declarations of their clients bore hard on them. But that the Scottish law designed that a certain weight should be laid on these declarations, which, he admitted, were quodammodo extrajudicial, was evident from the universal practice by which they were always produced and read, as part of the prosecutor’s probation. In the present case, no person who had heard the witnesses describe the appearance of the young woman before she left Saddletree’s house, and contrasted it with that of her state and condition at her return to her father’s, could have any doubt that the fact of delivery had taken place, as set forth in her own declaration, which was, therefore, not a solitary piece of testimony, but adminiculated and supported by the strongest circumstantial proof.
“He did not,” he said, “state the impression upon his own mind with the purpose of biassing theirs. He had felt no less than they had done from the scene of domestic misery which had been exhibited before them; and if they, having God and a good conscience, the sanctity of their oath, and the regard due to the law of the country, before their eyes, could come to a conclusion favourable to this unhappy prisoner, he should rejoice as much as anyone in Court; for never had he found his duty more distressing than in discharging it that day, and glad he would be to be relieved from the still more painful task which would otherwise remain for him.”
The jury, having heard the Judge’s address, bowed and retired, preceded by a macer of Court, to the apartment destined for their deliberation.
CHAPTER TWENTY-THIRD.
Law, take thy victim—May she find the mercy
In yon mild heaven, which this hard world denies her!
It was an hour ere the jurors returned, and as they traversed the crowd with slow steps, as men about to discharge themselves of a heavy and painful responsibility, the audience was hushed into profound, earnest, and awful silence.