Most righteous judge! a sentence.--Come, prepare.
Merchant of Venice.
It is by no means my intention to describe minutely the forms of a
Scottish criminal trial, nor am I sure that I could draw up an account so
intelligible and accurate as to abide the criticism of the gentlemen of
the long robe. It is enough to say that the jury was impanelled, and the
case proceeded. The prisoner was again required to plead to the charge,
and she again replied, "Not Guilty," in the same heart-thrilling tone as
before.
The crown counsel then called two or three female witnesses, by whose
testimony it was established, that Effie's situation had been remarked by
them, that they had taxed her with the fact, and that her answers had
amounted to an angry and petulant denial of what they charged her with.
But, as very frequently happens, the declaration of the panel or accused
party herself was the evidence which bore hardest upon her case.
In the event of these tales ever finding their way across the Border, it
may be proper to apprise the southern reader that it is the practice in
Scotland, on apprehending a suspected person, to subject him to a
judicial examination before a magistrate. He is not compelled to answer
any of the questions asked of him, but may remain silent if he sees it
his interest to do so. But whatever answers he chooses to give are
formally written down, and being subscribed by himself and the
magistrate, are produced against the accused in case of his being brought
to trial. It is true, that these declarations are not produced as being
in themselves evidence properly so called, but only as adminicles of
testimony, tending to corroborate what is considered as legal and proper
evidence. Notwithstanding this nice distinction, however, introduced by
lawyers to reconcile this procedure to their own general rule, that a man
cannot be required to bear witness against himself, it nevertheless
usually happens that these declarations become the means of condemning
the accused, as it were, out of their own mouths. The prisoner, upon
these previous examinations, has indeed the privilege of remaining silent
if he pleases; but every man necessarily feels that a refusal to answer
natural and pertinent interrogatories, put by judicial authority, is in
itself a strong proof of guilt, and will certainly lead to his being
committed to prison; and few can renounce the hope of obtaining liberty
by giving some specious account of themselves, and showing apparent
frankness in explaining their motives and accounting for their conduct.
It, therefore, seldom happens that the prisoner refuses to give a
judicial declaration, in which, nevertheless, either by letting out too
much of the truth, or by endeavouring to substitute a fictitious story,
he almost always exposes himself to suspicion and to contradictions,
which weigh heavily in the minds of the jury.
The declaration of Effie Deans was uttered on other principles, and the
following is a sketch of its contents, given in the judicial form, in
which they may still be found in the Books of Adjournal.
The declarant admitted a criminal intrigue with an individual whose name
she desired to conceal. "Being interrogated, what her reason was for
secrecy on this point? She declared, that she had no right to blame that
person's conduct more than she did her own, and that she was willing to
confess her own faults, but not to say anything which might criminate the
absent. Interrogated, if she confessed her situation to any one, or made
any preparation for her confinement? Declares, she did not. And being
interrogated, why she forbore to take steps which her situation so
peremptorily required? Declares, she was ashamed to tell her friends, and
she trusted the person she has mentioned would provide for her and the
infant. Interrogated if he did so? Declares, that he did not do so
personally; but that it was not his fault, for that the declarant is
convinced he would have laid down his life sooner than the bairn or she
had come to harm. Interrogated, what prevented him from keeping his
promise? Declares, that it was impossible for him to do so, he being
under trouble at the time, and declines farther answer to this question.
Interrogated, where she was from the period she left her master, Mr.
Saddletree's family, until her appearance at her father's, at St.
Leonard's, the day before she was apprehended? Declares, she does not
remember. And, on the interrogatory being repeated, declares, she does
not mind muckle about it, for she was very ill. On the question being
again repeated, she declares, she will tell the truth, if it should be
the undoing of her, so long as she is not asked to tell on other folk;
and admits, that she passed that interval of time in the lodging of a
woman, an acquaintance of that person who had wished her to that place to
be delivered, and that she was there delivered accordingly of a male
child. Interrogated, what was the name of that person? Declares and
refuses to answer this question. Interrogated, where she lives? Declares,
she has no certainty, for that she was taken to the lodging aforesaid
under cloud of night. Interrogated, if the lodging was in the city or
suburbs? Declares and refuses to answer that question. Interrogated,
whether, when she left the house of Mr. Saddletree, she went up or down
the street? Declares and refuses to answer the question. Interrogated,
whether she had ever seen the woman before she was wished to her, as she
termed it, by the person whose name she refuses to answer? Declares and
replies, not to her knowledge. Interrogated, whether this woman was
introduced to her by the said person verbally, or by word of mouth?
Declares, she has no freedom to answer this question. Interrogated, if
the child was alive when it was born? Declares, that--God help her and
it!--it certainly was alive. Interrogated, if it died a natural death
after birth? Declares, not to her knowledge. Interrogated, where it now
is? Declares, she would give her right hand to ken, but that she never
hopes to see mair than the banes of it. And being interrogated, why she
supposes it is now dead? the declarant wept bitterly and made no answer.
Interrogated, if the woman, in whose lodging she was, seemed to be a fit
person to be with her in that situation? Declares, she might be fit
enough for skill, but that she was an hard-hearted bad woman.
Interrogated, if there was any other person in the lodging excepting
themselves two? Declares, that she thinks there was another woman; but
her head was so carried with pain of body and trouble of mind, that she
minded her very little. Interrogated, when the child was taken away from
her? Declared that she fell in a fever, and was light-headed, and when
she came to her own mind, the woman told her the bairn was dead; and that
the declarant answered, if it was dead it had had foul play. That,
thereupon, the woman was very sair on her, and gave her much ill
language; and that the deponent was frightened, and crawled out of the
house when her back was turned, and went home to Saint Leonard's Crags,
as well as a woman in her condition dought.*
* i.e. Was able to do.
Interrogated, why she did not tell her story to her sister and father,
and get force to search the house for her child, dead or alive? Declares,
it was her purpose to do so, but she had not time. Interrogated, why she
now conceals the name of the woman, and the place of her abode? The
declarant remained silent for a time, and then said, that to do so could
not repair the skaith that was done, but might be the occasion of more.
Interrogated, whether she had herself, at any time, had any purpose of
putting away the child by violence? Declares, never; so might God be
merciful to her--and then again declares, never, when she was in her
perfect senses; but what bad thoughts the Enemy might put into her brain
when she was out of herself, she cannot answer. And again solemnly
interrogated, declares, that she would have been drawn with wild horses,
rather than have touched the bairn with an unmotherly hand. Interrogated,
declares, that among the ill-language the woman gave her, she did say
sure enough that the declarant had hurt the bairn when she was in the
brain fever; but that the declarant does not believe that she said this
from any other cause than to frighten her, and make her be silent.
Interrogated, what else the woman said to her? Declares, that when the
declarant cried loud for her bairn, and was like to raise the neighbours,
the woman threatened her, that they that could stop the wean's skirling
would stop hers, if she did not keep a' the founder.*
* i.e. The quieter.
And that this threat, with the manner of the woman, made the declarant
conclude, that the bairn's life was gone, and her own in danger, for that
the woman was a desperate bad woman, as the declarant judged from the
language she used. Interrogated, declares, that the fever and delirium
were brought on her by hearing bad news, suddenly told to her, but
refuses to say what the said news related to. Interrogated, why she does
not now communicate these particulars, which might, perhaps, enable the
magistrate to ascertain whether the child is living or dead; and
requested to observe, that her refusing to do so, exposes her own life,
and leaves the child in bad hands; as also that her present refusal to
answer on such points is inconsistent with her alleged intention to make
a clean breast to her sister? Declares, that she kens the bairn is now
dead, or, if living, there is one that will look after it; that for her
own living or dying, she is in God's hands, who knows her innocence of
harming her bairn with her will or knowledge; and that she has altered
her resolution of speaking out, which she entertained when she left the
woman's lodging, on account of a matter which she has since learned. And
declares, in general, that she is wearied, and will answer no more
questions at this time."
Upon a subsequent examination, Euphemia Deans adhered to the declaration
she had formerly made, with this addition, that a paper found in her
trunk being shown to her, she admitted that it contained the credentials,
in consequence of which she resigned herself to the conduct of the woman
at whose lodgings she was delivered of the child. Its tenor ran thus:--
"Dearest Effie,--I have gotten the means to send to you by a woman who is
well qualified to assist you in your approaching streight; she is not
what I could wish her, but I cannot do better for you in my present
condition. I am obliged to trust to her in this present calamity, for
myself and you too. I hope for the best, though I am now in a sore pinch;
yet thought is free--I think Handie Dandie and I may queer the stifler*
for all that is come and gone.
* Avoid the gallows.
You will be angry for me writing this to my little Cameronian Lily; but
if I can but live to be a comfort to you, and a father to your babie, you
will have plenty of time to scold.--Once more, let none knew your
counsel--my life depends on this hag, d--n her--she is both deep and
dangerous, but she has more wiles and wit than ever were in a beldam's
head, and has cause to be true to me. Farewell, my Lily--Do not droop on
my account--in a week I will be yours or no more my own."
Then followed a postscript. "If they must truss me, I will repent of
nothing so much, even at the last hard pinch, as of the injury I have
done my Lily."
Effie refused to say from whom she had received this letter, but enough
of the story was now known, to ascertain that it came from Robertson; and
from the date, it appeared to have been written about the time when
Andrew Wilson (called for a nickname Handie Dandie) and he were
meditating their first abortive attempt to escape, which miscarried in
the manner mentioned in the beginning of this history.
The evidence of the Crown being concluded, the counsel for the prisoner
began to lead a proof in her defence. The first witnesses were examined
upon the girl's character. All gave her an excellent one, but none with
more feeling than worthy Mrs. Saddletree, who, with the tears on her
cheeks, declared, that she could not have had a higher opinion of Effie
Deans, nor a more sincere regard for her, if she had been her own
daughter. All present gave the honest woman credit for her goodness of
heart, excepting her husband, who whispered to Dumbiedikes, "That Nichil
Novit of yours is but a raw hand at leading evidence, I'm thinking. What
signified his bringing a woman here to snotter and snivel, and bather
their Lordships? He should hae ceeted me, sir, and I should hae gien them
sic a screed o' testimony, they shauldna hae touched a hair o' her head."
"Hadna ye better get up and tryt yet?" said the Laird. "I'll mak a sign
to Novit."
"Na, na," said Saddletree, "thank ye for naething, neighbour--that would
be ultroneous evidence, and I ken what belangs to that; but Nichil Novit
suld hae had me ceeted _debito tempore._" And wiping his mouth with his
silk handkerchief with great importance, he resumed the port and manner
of an edified and intelligent auditor.
Mr. Fairbrother now premised, in a few words, "that he meant to bring
forward his most important witness, upon whose evidence the cause must in
a great measure depend. What his client was, they had learned from the
preceding witnesses; and so far as general character, given in the most
forcible terms, and even with tears, could interest every one in her
fate, she had already gained that advantage. It was necessary, he
admitted, that he should produce more positive testimony of her innocence
than what arose out of general character, and this he undertook to do by
the mouth of the person to whom she had communicated her situation--by
the mouth of her natural counsellor and guardian--her sister.--Macer,
call into court, Jean, or Jeanie Deans, daughter of David Deans,
cowfeeder, at Saint Leonard's Crags!"
When he uttered these words, the poor prisoner instantly started up, and
stretched herself half-way over the bar, towards the side at which her
sister was to enter. And when, slowly following the officer, the witness
advanced to the foot of the table, Effie, with the whole expression of
her countenance altered, from that of confused shame and dismay, to an
eager, imploring, and almost ecstatic earnestness of entreaty, with
outstretched hands, hair streaming back, eyes raised eagerly to her
sister's face, and glistening through tears, exclaimed in a tone which
went through the heart of all who heard her,--"O Jeanie, Jeanie, save me,
save me!"
With a different feeling, yet equally appropriated to his proud and
self-dependent character, old Deans drew himself back still farther under
the cover of the bench; so that when Jeanie, as she entered the court,
cast a timid glance towards the place at which she had left him seated,
his venerable figure was no longer visible. He sate down on the other
side of Dumbiedikes, wrung his hand hard, and whispered, "Ah, Laird, this
is warst of a'--if I can but win ower this part--I feel my head unco
dizzy; but my Master is strong in his servant's weakness." After a
moment's mental prayer, he again started up, as if impatient of
continuing in any one posture, and gradually edged himself forward
towards the place he had just quitted.
Jeanie in the meantime had advanced to the bottom of the table, when,
unable to resist the impulse of affections she suddenly extended her hand
to her sister. Effie was just within the distance that she could seize it
with both hers, press it to her mouth, cover it with kisses, and bathe it
in tears, with the fond devotion that a Catholic would pay to a guardian
saint descended for his safety; while Jeanie, hiding her own face with
her other hand, wept bitterly. The sight would have moved a heart of
stone, much more of flesh and blood. Many of the spectators shed tears,
and it was some time before the presiding Judge himself could so far
subdue his emotion as to request the witness to compose herself, and the
prisoner to forbear those marks of eager affection, which, however
natural, could not be permitted at that time, and in that presence.
The solemn oath,--"the truth to tell, and no truth to conceal, as far as
she knew or should be asked," was then administered by the Judge "in the
name of God, and as the witness should answer to God at the great day of
judgment;" an awful adjuration, which seldom fails to make impression
even on the most hardened characters, and to strike with fear even the
most upright. Jeanie, educated in deep and devout reverence for the name
and attributes of the Deity, was, by the solemnity of a direct appeal to
his person and justice, awed, but at the same time elevated above all
considerations, save those which she could, with a clear conscience, call
Him to witness. She repeated the form in a low and reverent, but distinct
tone of voice, after the Judge, to whom, and not to any inferior officer
of the Court, the task is assigned in Scotland of directing the witness
in that solemn appeal which is the sanction of his testimony.
When the Judge had finished the established form, he added in a feeling,
but yet a monitory tone, an advice, which the circumstances appeared to
him to call for.
"Young woman," these were his words, "you come before this Court in
circumstances, which it would be worse than cruel not to pity and to
sympathise with. Yet it is my duty to tell you, that the truth, whatever
its consequences may be, the truth is what you owe to your country, and
to that God whose word is truth, and whose name you have now invoked. Use
your own time in answering the questions that gentleman" (pointing to the
counsel) "shall put to you.--But remember, that what you may be tempted
to say beyond what is the actual truth, you must answer both here and
hereafter."
The usual questions were then put to her:--Whether any one had instructed
her what evidence she had to deliver? Whether any one had given or
promised her any good deed, hire, or reward, for her testimony? Whether
she had any malice or ill-will at his Majesty's Advocate, being the party
against whom she was cited as a witness? To which questions she
successively answered by a quiet negative. But their tenor gave great
scandal and offence to her father, who was not aware that they are put to
every witness as a matter of form.
"Na, na," he exclaimed, loud enough to be heard, "my bairn is no like the
Widow of Tekoah--nae man has putten words into her mouth."
One of the judges, better acquainted, perhaps, with the Books of
Adjournal than with the Book of Samuel, was disposed to make some instant
inquiry after this Widow of Tekoah, who, as he construed the matter, had
been tampering with the evidence. But the presiding Judge, better versed
in Scripture history, whispered to his learned brother the necessary
explanation; and the pause occasioned by this mistake had the good effect
of giving Jeanie Deans time to collect her spirits for the painful task
she had to perform.
Fairbrother, whose practice and intelligence were considerable, saw the
necessity of letting the witness compose herself. In his heart he
suspected that she came to bear false witness in her sister's cause.
"But that is her own affair," thought Fairbrother; "and it is my business
to see that she has plenty of time to regain composure, and to deliver
her evidence, be it true, or be it false--_valeat quantum._"
Accordingly, he commenced his interrogatories with uninteresting
questions, which admitted of instant reply.
"You are, I think, the sister of the prisoner?"
"Yes, sir."
"Not the full sister, however?"
"No, sir--we are by different mothers."
"True; and you are, I think, several years older than your sister?"
"Yes, sir," etc.
After the advocate had conceived that, by these preliminary and
unimportant questions, he had familiarised the witness with the situation
in which she stood, he asked, "whether she had not remarked her sister's
state of health to be altered, during the latter part of the term when
she had lived with Mrs. Saddletree?"
Jeanie answered in the affirmative.
"And she told you the cause of it, my dear, I suppose?" said Fairbrother,
in an easy, and, as one may say, an inductive sort of tone.
"I am sorry to interrupt my brother," said the Crown Counsel, rising;
"but I am in your Lordships' judgment, whether this be not a leading
question?"
"If this point is to be debated," said the presiding Judge, "the witness
must be removed."
For the Scottish lawyers regard with a sacred and scrupulous horror every
question so shaped by the counsel examining, as to convey to a witness
the least intimation of the nature of the answer which is desired from
him. These scruples, though founded on an excellent principle, are
sometimes carried to an absurd pitch of nicety, especially as it is
generally easy for a lawyer who has his wits about him to elude the
objection. Fairbrother did so in the present case.
"It is not necessary to waste the time of the Court, my Lord since the
King's Counsel thinks it worth while to object to the form of my
question, I will shape it otherwise.--Pray, young woman, did you ask your
sister any question when you observed her looking unwell?--take
courage--speak out."
"I asked her," replied Jeanie, "what ailed her."
"Very well--take your own time--and what was the answer she made?"
continued Mr. Fairbrother.
Jeanie was silent, and looked deadly pale. It was not that she at any one
instant entertained an idea of the possibility of prevarication--it was
the natural hesitation to extinguish the last spark of hope that remained
for her sister.
"Take courage, young woman," said Fairbrother.--"I asked what your sister
said ailed her when you inquired?"
"Nothing," answered Jeanie, with a faint voice, which was yet heard
distinctly in the most distant corner of the Court-room,--such an awful
and profound silence had been preserved during the anxious interval,
which had interposed betwixt the lawyer's question and the answer of the
witness.
Fairbrother's countenance fell; but with that ready presence of mind,
which is as useful in civil as in military emergencies, he immediately
rallied.--"Nothing? True; you mean nothing at _first_--but when you asked
her again, did she not tell you what ailed her?"
The question was put in a tone meant to make her comprehend the
importance of her answer, had she not been already aware of it. The
ice was broken, however, and with less pause than at first, she now
replied,--"Alack! alack! she never breathed word to me about it."
A deep groan passed through the Court. It was echoed by one deeper and
more agonised from the unfortunate father. The hope to which
unconsciously, and in spite of himself, he had still secretly clung, had
now dissolved, and the venerable old man fell forward senseless on the
floor of the Court-house, with his head at the foot of his terrified
daughter. The unfortunate prisoner, with impotent passion, strove with
the guards betwixt whom she was placed. "Let me gang to my father!--I
_will_ gang to him--I _will_ gang to him--he is dead--he is killed--I hae
killed him!"--she repeated, in frenzied tones of grief, which those who
heard them did not speedily forget.
Even in this moment of agony and general confusion, Jeanie did not lose
that superiority, which a deep and firm mind assures to its possessor
under the most trying circumstances.
"He is my father--he is our father," she mildly repeated to those who
endeavoured to separate them, as she stooped,--shaded aside his grey
hairs, and began assiduously to chafe his temples.
The Judge, after repeatedly wiping his eyes, gave directions that they
should be conducted into a neighbouring apartment, and carefully
attended. The prisoner, as her father was borne from the Court, and her
sister slowly followed, pursued them with her eyes so earnestly fixed, as
if they would have started from their sockets. But when they were no
longer visible, she seemed to find, in her despairing and deserted state,
a courage which she had not yet exhibited.
"The bitterness of it is now past," she said, and then boldly, addressed
the Court. "My Lords, if it is your pleasure to gang on wi' this matter,
the weariest day will hae its end at last."
The Judge, who, much to his honour, had shared deeply in the general
sympathy, was surprised at being recalled to his duty by the prisoner. He
collected himself, and requested to know if the panel's counsel had more
evidence to produce. Fairbrother replied, with an air of dejection, that
his proof was concluded.
The King's Counsel addressed the jury for the crown. He said in a few
words, that no one could be more concerned than he was for the
distressing scene which they had just witnessed. But it was the necessary
consequence of great crimes to bring distress and ruin upon all connected
with the perpetrators. He briefly reviewed the proof, in which he showed
that all the circumstances of the case concurred with those required by
the act under which the unfortunate prisoner was tried: That the counsel
for the panel had totally failed in proving, that Euphemia Deans had
communicated her situation to her sister: That, respecting her previous
good character, he was sorry to observe, that it was females who
possessed the world's good report, and to whom it was justly valuable,
who were most strongly tempted, by shame and fear of the world's censure,
to the crime of infanticide: That the child was murdered, he professed to
entertain no doubt. The vacillating and inconsistent declaration of the
prisoner herself, marked as it was by numerous refusals to speak the
truth on subjects, when, according to her own story, it would have been
natural, as well as advantageous, to have been candid; even this
imperfect declaration left no doubt in his mind as to the fate of the
unhappy infant. Neither could he doubt that the panel was a partner in
this guilt. Who else had an interest in a deed so inhuman? Surely neither
Robertson, nor Robertson's agent, in whose house she was delivered,
had the least temptation to commit such a crime, unless upon her account,
with her connivance, and for the sake of saying her reputation. But it
was not required of him, by the law, that he should bring precise proof
of the murder, or of the prisoner's accession to it. It was the very
purpose of the statute to substitute a certain chain of presumptive
evidence in place of a probation, which, in such cases, it was peculiarly
difficult to obtain. The jury might peruse the statute itself, and they
had also the libel and interlocutor of relevancy to direct them in point
of law. He put it to the conscience of the jury, that under both he was
entitled to a verdict of Guilty.
The charge of Fairbrother was much cramped by his having failed in the
proof which he expected to lead. But he fought his losing cause with
courage and constancy. He ventured to arraign the severity of the statute
under which the young woman was tried. "In all other cases," he said,
"the first thing required of the criminal prosecutor was to prove
unequivocally that the crime libelled had actually been committed, which
lawyers called proving the _corpus delicti._ But this statute, made
doubtless with the best intentions, and under the impulse of a just
horror for the unnatural crime of infanticide, ran the risk of itself
occasioning the worst of murders, the death of an innocent person, to
atone for a supposed crime which may never have been committed by anyone.
He was so far from acknowledging the alleged probability of the child's
violent death, that he could not even allow that there was evidence of
its having ever lived."
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.