THE TRIAL
The great duke lay in state in St. Giles, and the Highlands emptied
themselves into Edinburgh demanding justice. The lady-mother of the
dead was there, broken-hearted, and Percival Montrose, to whom the
title fell; and I had a fine taste of the fealty of Gaelic-folk, for
kinsfolk and clansfolk took the duke's undoing as a personal affront,
and put their own matters by to get some one hanged for it.
The streets, especially those around the courts, were thronged with the
late duke's following; unkempt, hot-eyed, bare-legged gillies were
grouped at every corner, glowering under their tartan bonnets; I found
a huddle of them squatted behind some alders on the Burnside, and came
upon another set by the carriage-way, who glared at me as I passed them
as if I had had some part in the undoing of their clansman.
During this time Nancy lay ill, for which, strange as it seems, I
praised God, for the sickness saved her from the horrors of the
coroner's inquest, McMurtrie coming to my aid in the matter by
declaring it worth her life to be dragged into the affair. There was
nothing more definite elicited from this tribunal, constituted largely
of men under heavy obligations either to Sandy or myself, than "Death
at the hands of a person or persons unknown," but the relief which came
with the verdict was of short duration.
How rumor is bred none can tell, but on the day following the coroner's
findings there was a waif-word wandering about that Danvers Carmichael
knew more than he had told of the duke's taking off; and whether bred
by servants' gossip or the talk of the fool chemist-doctor who had
taken the medicine to Pitcairn on the night of the murder and
encountered Danvers hatless in the snow, I can not say; but by the
evening there rose a strong demand for his arrest, and two officers
appeared at Arran and took the lad into custody.
Nancy, who had not left her room from that dreadful night, but who had
recovered herself enough to sit up a little at a time, received the
news in silence, asking if it were possible for me to get the exact
testimony given before the coroner for her to see; and going through
it, sitting in the bed, with flushed face and feverish eyes.
"It's not so bad," she said, as she put it aside; "not so bad. Will ye
ride out and ask Mr. Pitcairn to come to me?" she asked.
"Pitcairn? Ye'll not be wanting Pitcairn," I answered. "It's Magendie
we are having up from London for the defense."
"I--want--to--see--Mr.--Pitcairn," she said slowly.
"I don't understand at all," I answered. "When you refuse to see Sandy,
who, in his own great distress, has never forgot you for a moment, I
don't see why you should be sending for Pitcairn."
"I want to see neither Sandy nor any of the Arran people," she
answered.
"And you've no word of comfort for Danvers?" I asked.
"None," she returned. "I have not one word of comfort or anything else
to send to Danvers Carmichael, and I'd like to have it generally
known."
Although I saw him not, I knew that Pitcairn came to Stair that
afternoon; but, before God, by no message carried by me; and the
following morning I visited him in his offices, finding him at a desk
in the inner room looking frozenly out under his dome-like forehead in
a way to suggest that his natural greeting would be: "What are you
prepared to swear to?"
"Hugh," said I, "ye've doubtless heard of the trouble young Mr.
Carmichael is in----" here I waited.
He nodded, as one might who had but a certain number of words given him
at birth and was fearful that the supply might run out.
"It has occurred to me," I went on, "that your old friendship for me
and my old friendship for Sandy being common knowledge, ye might show a
fine courtesy by standing aside in the case and letting Mr. Inge take
it altogether. Such a thing can be done, I know, for when the
Lord-President himself had Ferrars to try, who was a known man to him,
he asked to be relieved from presiding."
"I attended to the duke's affairs when he was living. I shall attend to
them now that he is dead," he replied stolidly. "There is an ethical
side to the matter as well, for I believe him to have been killed by
the young----" he caught himself at this, with a correction. "I have my
beliefs in the case," he amended. "But ye can rest by this, if a man is
innocent of a crime in this country he can prove it. It is a
prosecution, not a persecution, that will be conducted by the
government."
And here a lighter vein seemed to take him, for he added:
"And so, Jock Stair, you would come to me to use an old friendship to
buy the laddie off! Ye're a nice citizen; a fine, public-spirited
body!"
"Hugh Pitcairn," I answered, "if you were in trouble, and it needed the
last shilling I had in the world to help ye, you'd find me beside ye,
with it held out in my hand; and it seems a little thing I am asking of
you, and not for myself either----"
"Your daughter's a better man than you," he broke in on me. "It was a
fine thing she did--a fine, public-spirited thing!"
"Ye've trained her well in the lawing," I said, leading him on a bit,
for Nancy had held the silence of the dead concerning the murder since
the day of his visit, and I had no knowledge of what he meant.
"Mark you," he said, and there was almost a glow upon his face, "the
first day that she was able to sit up after her illness Nancy Stair
sent for me. 'Mr. Pitcairn,' said she, 'a most unwelcome task has come
to me, and I am needing your advice.' And on this she went over the
talk, part of which I had overheard, between herself and the young
Carmichael, with neither heat nor fallacy of emphasis, as accurately as
I might have done myself," he ended, as though higher praise were
inconceivable.
"There's a girl for ye!" he cried. "I've set but little store by her
verse-making; or her charity work, which is sentiment; but by the
lawing the very female quality of her mind has been changed, for she is
able to put a duty to her country before her own feelings. Ye might
take a lesson from your daughter in that, Jock Stair!" he finished.
I rode back to Stair on a gallop and went straight to Nancy's room.
"What is this ye've done?" I cried. "What is this thing that ye've done
against the man who has loved ye ever since his eyes lighted upon you,
and whom your own indecision has helped to the place he now stands?"
There was a look of reproach in her eyes as she sat looking up at me,
but her words were quiet enough.
"What do you mean?" she asked.
"I've been having a talk with Pitcairn----" I began.
"For Heaven's sake!" she cried, springing to her feet. "It was the
thing I wanted least. What did you tell him? Oh, what did ye tell him?"
she asked excitedly.
"I told him nothing," I answered.
"You think you didn't, dearest," she answered; "but it's not in your
nature to keep a secret. 'Tis because you're a fine gentleman, with
never a thought in your life that needs hiding; but it's bad in law!
Stay away from Hugh Pitcairn, dearest. Stay away from him!"
"Nancy," said I, and my flattered vanity softened my tone, "I don't
understand your conduct at all; for, as far as I can see, you seem to
have done all ye could to get Danvers Carmichael hanged----"
"Seemed, Jock," she said, "only seemed! Ye might trust me a bit
more----"
"And you're called for the prosecution----"
"Naturally," she returned, unmoved.
And here I just stared at her for a minute, and turned with a bit of
temper showing in my conduct and left the room.
The same evening I was further blindfolded by a visit from Mr.
Magendie, the London lawyer, who by Nancy's thought (although I did not
recognize her suggestion in the matter at the time, so deftly was it
made) had been brought up to Edinburgh for Danvers's defense. I found
this renowned gentleman of a slight, wiry build, below the medium
height, with a distinguished head, covered with thick silver hair, hawk
eyes, and a nose which turned downward like a beak. There was a Sabbath
calm in his manner; his voice was gentle and suave, and his most
pertinent statements came as mere suggestions. He had, I noticed, the
very rare quality of fixing his whole attention on the one to whom he
listened, and of putting his own personality somewhere aside as he held
up the speaker to the strong light of a mind trained for inspection. I
found after the interview that I had told him almost everything that I
had said, done, or imagined since my birth, and at remembrance of it,
recalled Nancy's inquiries concerning my talk with Hugh, and prayed
Heaven I had not been equally indiscreet before that block of steel.
It was as the London man was leaving the house that the blindfolding of
me was begun anew by Huey MacGrath entering with a note, saying that
Nancy would like to have Mr. Magendie come to her sitting-room on the
second floor. I paced up and down the lower hall, perplexed in mind and
sick with dread of the horror hanging over us, yet with something in my
heart which told me that, in spite of Hugh's statements, Nancy Stair
was with us--with Sandy, and Danvers, and myself.
Near one o'clock of the morning I heard Nancy's voice, at the turn of
the stair, saying good night to the London man.
"People think he's ice," she cried, and I knew it was Pitcairn of whom
she spoke; "but try a bit of flattery with him. Not on his looks, for
he cares less for them than for the wind that blows, but on his
abilities. Tell him that all knowledge of the Scots law will end at his
death, and that you're flattered to be on the same case with him; tell
him that Moses but anticipated him in the Ten Commandments, and that,
before the time of Leviticus, he was. He will rest calm under it. He
will show naught; but in his soul he will agree with you, and think
that a man who has such penetration concerning himself must have a
judgment worth consideration about others."
I heard Magendie laugh aloud, and when I joined him saw that his eyes
had brightened during the interview, as though he had been drinking,
and that he carried himself with some excitement.
"It will be a great case, my lord! a great case!" he said, with
enthusiasm. "And it's a fine daughter ye have! A great woman! God!" he
cried, seizing my hand, "if she'd go on the case with me, I'd undertake
the defense of Judas!--and I'd get a verdict, too!" he added, with a
laugh, as he went out into the night.
On the morning set for the trial, to add to our distressed state of
mind, a tempest arose. There was rain driven into the town from the
hills, and rain driven into the town from the sea, and banks of leaden
clouds were blown back and forth over the trees, which were bent double
by the Bedlamite wind. The grounds of Stair lay like a pond, the road
ran like a river, and the broken bits of trees hurled everywhere made
going abroad a dangerous business. As I entered the breakfast-room Huey
threw a look at my attire.
"You'll not be thinking of going out?" he demanded, rather than asked.
"I'm thinking of nothing else," said I.
"Ye'll get killt," he cried, and at the words my eyes lighted with some
amazement upon his own odd costume, for he was prepared to serve my
breakfast in corduroys and thigh-boots.
"Why are you dressed like that?" I inquired.
"You wouldn't be wanting me to stay at home when there's trouble to Mr.
Danvers, would you?" he demanded fiercely. "I, who have known him since
he was a week old, and have had favors from him thousands of times! And
now," he went on as though I had done him some personal injury, "when
there's sorrow by him, ye'd have me keeping the chimney-lug, wi' a
glass and a story-book, mayhap, and him needing friends as he sits wi'
that deevil Pitcairn glowerin' at him. Nay! Nay!" he continued, "Huey
MacGrath's not like that! I'll be there!" he cried, his conceit and
loyalty carrying a singular comfort to me. "I'll be there, early and
late, and they'll see they have me to contend wi'!"
"Ye can't stay in the court. You'll be sequestered until after you've
testified. Ye know the law for that, Huey."
"They'll sequester me none"; he returned, grimly; "and if Dunsappie the
macer tries it I'll have him read out of the church, for I know of him
that which makes me able to do it!"
"There's Mr. Pitcairn, who knows ye well," said I.
"I'm not counting to see him," he returned with a squinting of his eye.
"I'll stay where he is nae looking; but I'll get a glyff of the laddie
himsel', and he'll know I'm there, and will feel better for it, though
I'm only an old serving man!"
"I'm sure he will, Huey," I said, touched to the heart; "I'm sure he
will; and I'll tell him of your coming if he misses a sight of you," I
added, as I saw the poor fellow's face working with sorrow and anxiety;
but his spirit and loyalty undaunted by all the courts of judiciary
that ever sat.
We were preparing to be off together when Nancy came down to us, pale
and heavy-eyed.
"Jock," said she, "if Mr. Magendie had the word he hoped for from
Father Michel, it would be wise for him to have as many Romanists in
the jury as he can get. They have reason to know the priest's
goodness." And then: "Jock, darling!" she cried, throwing her arms
around my neck and weeping as though her heart would break, "there's a
trial coming between us; and ye'll see me misjudged by the world, and
by Sandy as well, who has been like an own father to me! And by
him!--him, too! You'll all be ashamed of me; but when I'm called,
mayhap to-morrow or the next day," and the little hands fastened
themselves around my bare throat, "don't distrust me. Beloved, don't
distrust me! Don't believe I'm bad, or wanting in loyalty to the dear
ones of my life. Don't believe it, though ye hear me say it myself. I
can abide all that's come to me, but to have something between us!" and
she buried her face in my bosom, moaning like a hurt child.
"Nancy," said I, for the sight of any suffering of hers made me like a
crazy man, "you've held yourself aloof from me, and have given out by
your conduct that your sympathies are all for the prosecution; but in
spite of it, if an angel from Heaven were to call you guilty of
disloyalty to a friend I'd give him the lie, though I were damned for
it!" I cried.
"Mine Jock," she said, "mine Jock!" and, comforted by the very violence
of my language, she stood quietly by the window watching Huey as he
waded through the river of water underneath which the road toward
Edinburgh lay.
Sandy had remained in town over night to be with his boy at the
earliest possible moment, and we sought him at the coffee-house where
he had slept. He had his friends with him, but there were none to whom
he paid attention save to me, holding my hand in his, and breathing
deep in a kind of relief as I stood by him.
I asked him how Danvers bore himself, and he answered, with a courage
and fortitude beyond belief, and that Magendie gave him comforting
assurances. Of Nancy no word was spoken between us, for the hurt he had
received from her conduct put an edge upon his suffering keener than he
could bring himself to name, and there came upon me, at the sight of
this pain, the impulse to tell him my own suspicions in the matter, but
caution for the cause held me back.
Fierce as the morning was, the court-room was packed when we entered. I
had asked and received permission to sit beside Sandy until such time
as the empaneling should begin; and as we took our seats in that dread
place I had a taste of the terror of the law which daunts my spirit to
this day. It's one thing to read of murders by one's fireside,
speculating over the evidence like a tale, and another to sit face to
face with the charges and the life of one most dear dependent on the
issue. And such was the awe inspired by the dreadful surroundings that
when Carew, the Lord-President, in the wig and scarlet robes of
criminal jurisdiction, preceded by the macers, took the bench, my body
shook as though in mortal illness, from fear of the august power he
represented, and this despite the fact that I'd drunken deeper than was
wise with him many times in my early days and knew him to be sodden in
his affection for Nancy from the time she had taken the case out of his
hands for Jeanie Henderlin. When Danvers, who was by far the most
composed of any of us, was brought in, I arose, laying my hand on his
shoulder as we talked, determined that the whole town should know where
my beliefs and sympathies lay.
There was little difficulty in getting the fifteen jurymen, and, as I
was taken away to be sequestered, a thing happened which I tell for the
love I have of human nature. There was a commotion at the door of the
court-room, and I heard the macer's tones threatening some one, and
then a clear voice crying:
"If you don't let me in I'll break every bone in your body," and Billy
Deuceace, hard-ridden and disheveled, elbowed his way to the railing
itself and held out both hands to Danvers.
"Couldn't get here any sooner, old man," he cried. "Have ridden all
night! Just came up to say it's all damned nonsense, you know!" he
finished, and I felt that a happier beginning could scarce have
occurred for us.
I was not in the court-room when the case opened, and by this reason am
forced for information to the papers recording the case, which forms
one of the _causes célèbres_ of Scottish legal history. Even at this
distance of time, at sight of these old files I feel again the
helplessness and miserable sinking of heart which I felt the first time
I read the indictment of Pitcairn against the boy whom I loved, no
matter what he had done; and I write it again, no matter what he had
done.
"The trial of Danvers Carmichael for the murder of John Stewart
Aglionby Montrose, Duke of Borthwicke, Ardvilarchan, and Drumblaine in
the Muirs, Lord of, etc., before the Lord-President Carew, beginning
Tuesday, March tenth, 1788.
_Counsel for the Crown_
Mr. Pitcairn
Mr. Inge
_Solicitor_
Mr. Caldicott
_For the Prisoner_
Mr. Magendie
Mr. Elliott
_Solicitor_
Mr. Witmer
taken in shorthand by John Gurney of London.
"After addressing the bench, the case was opened for the prosecution by
Mr. Pitcairn, as follows:
"GENTLEMEN OF THE JURY:
"The crime imputed to the prisoner at the bar is that of wilful
murder, effected by means and in a manner most abhorred. Such an
accusation naturally excites the indignation of honest minds
against the criminal. I will not endeavor to increase it, and it is
your duty to resist it and to investigate and determine the case
wholly upon the evidence which will be placed before you.
"On the night of the twenty-third of February, 1788, John Stewart
Aglionby Montrose, Duke of Borthwicke, was found, between the hours
of midnight and one of the morning, dead in a desk-chair, in a
chamber on the ground floor of Stair House, near Edinburgh, by Lord
Stair and his serving-men, Huey MacGrath, John Elliott, and James
MacColl. The window by the late duke it will be proven was wide
open, forming an easy entrance from outside; a pistol, the property
of the accused, was found lying by the chair upon which the duke
sat, and a wound above the temple of the deceased was discovered,
made by a bullet similar to those used in the pistol before
mentioned.
"It will be proven by testimony of such a character and from such a
source as to render it singularly forcible, that on the morning of
the day previous to the night of the murder the accused had
threatened the duke's life, applying vile and scurrilous names to
the deceased; repeating these threats several times and in various
forms.
"It will be proven that there had existed for the accused one of
the most powerful incentives to murder known, in the fact that the
late duke and he loved, and had loved for some time past, the same
lady, Nancy, daughter to Lord Stair; that both had addressed her in
marriage, and that in September last the quarrel between them rode
so high that a meeting was arranged between the late duke and the
accused; and there will be testimony to show that the duel was
averted by the late duke's apologizing to Mr. Carmichael, a course
urged upon him by the lady herself.
"It will be proven that in October past, after a bitter quarrel
with Miss Stair, the accused espoused in a hasty (and in a person
of his rank and station), unseemly manner, his mother's cousin,
Miss Isabel Erskine; that since that time he has been little in her
presence, leaving her alone at the time when a woman most needs the
comfort and support of a husband's presence, and paying marked
attentions, both in public and private, to the first lady of his
choice.
"It will be proven that on the day preceding the murder there was
published in an Edinburgh paper called The Lounger the news that an
engagement of marriage had been contracted between the late John
Stewart Aglionby Montrose, Duke of Borthwicke, Muir, etc., and
Mistress Nancy Stair, only daughter of John Stair, Lord of Stair
and Alton in the Mearns.
"It will be proven that immediately upon reading this the accused
came directly to Stair, and after entering unannounced into the
room where the lady was sitting, asked her if the tale were true,
calling the late duke a thiever from the poor, a seducer of women,
a man drenched in all manner of villainy, and one whom he would
rather see her dead than married to. That he had declared that he
still loved and had always loved her, that his marriage was but the
result of a crazy jealousy, and besought her to promise him that
she would never marry the duke. It will be proven by two competent
witnesses that upon her refusing to do this, the accused had cried
out, 'I will save you the promising, for I swear he shall never
live to marry you.'
"It will be proven by a physician of repute that within ten minutes
of the time of the murder the accused was seen, hatless, walking
very fast or running away from Stair House toward his own home of
Arran, and this along a very secluded and unusual path.
"In conclusion, testimony will be brought to show that the day
before the murder the accused made an agreement with a boatman of
Leith to keep a boat ready for him at an hour's notice, either for
Ireland or France.
"It may be urged that this testimony, even if fully established, is
purely circumstantial, for that none saw the accused commit the
fatal deed. To this I would answer:
"The true question is, not what is the _kind_ of evidence in this
cause, but what is the result of it in your minds.
"If it fail to satisfy you of the guilt of the prisoner, if your
minds are not convinced, if you remain in doubt, you must acquit
him, be the evidence positive or presumptive, because the law
regards a man as innocent so long as any reasonable doubt of his
guilt exists. But if, on the contrary, you are convinced of the
fact, if there is no chance for a reasonable doubt to exist, it is
imperatively your duty to yourselves, to your country, and to your
God to convict, even if the evidence be wholly presumptive."
I set this extremely dry document down exactly as it is recorded in the
files for two reasons: first, that it contains all of the charges
against Danvers, and to show how black the case stood against him when
I say that all Pitcairn said he would prove he proved to the last
letter.
After my own testimony was taken, the nature of which is already known,
I was granted the privilege of sitting beside Sandy and his boy, the
three of us being joined daily by Billy Deuceace, whom I love to the
minute of this writing for his devotion to my lad.
Nancy's appearance in court was naturally looked upon as the most
exciting point of the trial, and the morning she was to be called the
crowd was dense to suffocation, the court-officers busy, dashing to and
fro, trying to keep some orderliness among the women, who jostled each
other and gave vent to loud exclamations of annoyance in their efforts
to get places from which the best view might be obtained. It is curious
to note the way some trivial vexation will linger in the mind, for in
recalling this scene it is the annoyance I had from Mrs. MacLeod, mine
landlady of the Star and Garter, that stands out clearest in my memory
of that dreadful waiting time.
She sat well to the front, giving herself important airs, and I could
hear her going back and forth in whispers over the story of Nancy's
visiting the duke at her house to obtain the pardon of Timothy Lapraik.
Wagging her head to and fro, applying her smelling-salts vigorously,
and assuming the manner of an intimate sufferer in the cause, she
exasperated us to such an extent that Billy Deuceace was for throwing
her out of a window.
When Nancy entered every eye in that immense throng was fixed upon her,
and as she stood, so fair to see, in her black hat and gown, waiting to
take the oath, Mrs. MacLeod's feelings overcame her entirely, and she
cried out, in a loud voice: "Ah, the beauty! 'Tis her that should hae
been a duchess!" immediately falling into strong hysterics, upon which
the macers summarily ejected her, to our great satisfaction, and Billy
Deuceace all but cheered.
Danvers's bearing changed at the mere sound of Nancy's name, and the
look of adoration that he cast upon her as she came near him was as
unwise a piece of conduct as could well be imagined, and one which
would have gone far toward convincing an onlooker of his willingness to
die or to murder for her protection, if necessary. The look had no
weight with the one for whom it was intended, however, for she let her
eyes pass over rather than encounter his, turning from him, with what
might easily seem a bit of disdain, to the business in hand.
As I gazed at her I noted with astonishment that the little creature's
face seemed to have taken on something of Pitcairn's expression, and
from the first moment to the clear end it was toward Pitcairn she
gazed, her eyes tutored by his, her passionless, unheated manner his
own, her adjustments and discrimination in words showing her legal
training, while he sat as a maiden schoolmistress might who listened to
the reciting of a favorite pupil. As she went on with her tale;
omitting nothing of the duel; dragging in details of the quarrel which
seemed unnecessary; stating that for some time past Mr. Carmichael's
attentions to her had been pronounced to such an extent that she had
shunned all company for fear of meeting him; damaging him in every way,
as it appeared, while the poor fellow turned a piteous color, putting
his hand over his eyes, and, for the first time in his great trouble, I
saw his lips tremble and his body quiver with emotion. I could scarce
endure the sight of this, and to show my feelings threw my arm across
his shoulder, at which movement a murmur went through the crowd, no
doubt at the oddity of the situation, that I should be so strongly
marked on the one side and Nancy as strongly set on the other.
Danvers's conduct changed, however, before her testimony was finished,
a thing which I was glad to see, for he brought himself together with
fine bravery and courage, but with a bitterness showing in his face as
of one who has been betrayed.
There were two things in Nancy's testimony to which I looked forward
with dread. The first was the story of the cap, and the second the
finding of the pistol which I was morally certain she had moved. The
first of these was not mentioned at all, by which I knew that Pitcairn
had had that incident concealed from him, and the pistol episode, about
which I had been questioned at length, swearing that the first sight I
had of the weapon was when it lay within a foot of the duke's hand, was
answered like this:
_Question_.--"In what position was the pistol when you first saw
it?"
_Answer_.--"I can not swear to that. My impression is that it lay
with the barrel toward the window. As I pointed it out to my
father, Lord Stair, I made a movement to go toward it, but he held
me back, going himself to inspect it. From the distance at which I
then stood it seemed to be directly under the duke's right hand,
with the barrel toward the window."
It was after a full morning's hearing, during which it seemed there was
nothing more she could have said for Danvers's undoing, that she was
excused, to be followed by the villainous boatman, whose testimony
showed all too clearly that Danvers had made ready a means of escape.
The prosecution rested with the testimony of this man, without one ray
of hope for Danvers Carmichael that I could see, unless some of the
jurymen were enlightened enough to refuse a conviction in a capital
case on any evidence which was circumstantial or conjectural. Motive,
abundant motive, had been proven; nearness to the crime at the time of
the murder; the ownership of the weapon, a black spot for the defense
to wipe out; and last, the means planned for an escape in case of
discovery, as testified to by the boatman of Leith.