On entering the court, I found that the business had commenced. An
enormous raw-boned fellow, with a shock of the fieriest hair, and hands
of such dimensions that a mere glimpse of them excited unpleasant
sensations at your windpipe, was stationed at the bar, to which, from
previous practice, he had acquired a sort of prescriptive right.
"James M'Wilkin, or Wilkinson, or Wilson," said the presiding judge, in
a tone of disgust which heightened with each successive alias, "attend
to the indictment which is about to be preferred against you."
And certainly, if the indictment contained a true statement of the
facts, James M'Wilkin, or Wilkinson, or Wilson was about as
thoroughpaced a marauder as ever perambulated a common. He was charged
with sheep-stealing and assault; inasmuch as, on a certain night
subsequent to the Kelso fair, he, the said individual with the plural
denominations, did wickedly and feloniously steal, uplift, and away
take from a field adjoining to the Northumberland road, six wethers, the
property, or in the lawful possession of, Jacob Gubbins, grazier, then
and now or lately residing in Morpeth; and moreover, on being followed
by the said Gubbins, who demanded restitution of his property, he, the
said M'Wilkin, &c., had, in the most brutal manner, struck, knocked
down, and lavished divers kicks upon the corporality of the Northumbrian
bumpkin, to the fracture of three of his ribs, and otherwise, to the
injury of his person.
During the perusal of this formidable document by the clerk, M'Wilkin
stood scratching his poll, and leering about him as though he considered
the whole ceremony as a sort of solemn joke. I never in the course of my
life cast eyes on a more nonchalant or unmitigated ruffian.
"How do you say, M'Wilkin," asked the judge; "are you guilty or not
guilty?"
"Not guilty, aff course. D'ye tak me for a fule?" and M'Wilkin flounced
down upon his seat, as though he had been an ornament to society.
"Have you a counsel?" asked the judge.
"De'il ane--nor a bawbee," replied the freebooter.
Acting upon the noble principle of Scottish jurisprudence, that no man
shall undergo his trial without sufficient legal advice, his lordship in
the kindest manner asked me to take charge of the fortunes of the
forlorn M'Wilkin. Of course I made no scruples; for, so long as it was
matter of practice, I should have felt no hesitation in undertaking the
defence of Beelzebub. I therefore leaned across the dock, and exchanged
a few hurried sentences with my first client.
"Why don't you plead guilty?"
"What for? I've been here before. Man, I'm thinking ye're a saft ane!"
"Did you not steal the sheep."'
"Ay--that's just the question. Let them find that out."
"But the grazier saw you?"
"I blackened his e'es."
"You'll be transported to a dead certainty."
"Deevil a fears, if ye're worth the price o' half a mutchkin. I'm
saying--get me a Hawick jury, and it's a' richt. They ken me gey and
weel thereabouts."
Although I was by no means satisfied in my own mind that an intimate
acquaintance with M'Wilkin and his previous pursuits would be a strong
recommendation in his favour to any possible assize, I thought it best
to follow his instructions, and managed my challenges so well that I
secured a majority of Hawickers. The jury being sworn in, the cause
proceeded; and certainly, before three witnesses had been examined, it
appeared to me beyond all manner of doubt, that, in the language of Tom
Campbell, my unfortunate client was
"Doom'd the long coves of Sydney isle to see,"
as a permanent addition to that cultivated and Patagonian population.
The grazier stood to his story like a man, and all efforts to break him
down by cross-examination were fruitless. There was also another hawbuck
who swore to the sheep, and was witness to the assault; so that, in
fact, the evidence was legally complete.
Whilst I was occupied in the vain attempt to make Gubbins contradict
himself, there had been a slight commotion in the court-room. On looking
round afterwards, I was astonished to behold my friend Strachan seated
in the magistrate's box, next to a very pretty and showily-dressed
woman, to whom he was paying the most marked and deliberate attention.
On the other side of her was an individual in a civic chain, whose fat,
pursy, apoplectic appearance, and nose of the colour of an Orleans plum,
thoroughly realised my mental picture of the Bailie. His small,
blood-shot eyes twinkled with magisterial dignity and importance; and he
looked, beside Miss Percy--for I could not doubt that it was she--like a
satyr in charge of Florimel.
The last witness for the crown, a very noted police officer from
Glasgow, was then put into the box, to prove a previous conviction
against my friend M'Wilkin. This man bore a high reputation in his
calling, and was, indeed, esteemed as a sort of Scottish Vidocq, who
knew by headmark every filcher of a handkerchief between Caithness and
the Border. He met the bold broad stare of the prisoner with a kind of
nod, as much as to assure him that his time was very nearly up; and then
deliberately proceeded to take a hawk's-eye view of the assembly. I
noticed a sort of quiet sneer as he glanced at the Magistrate's box.
"Poor Strachan!" thought I. "His infatuation must indeed be palpable,
since even a common officer can read his secret in a moment."
I might just as well have tried to shake Ailsa Craig as to make an
impression upon this witness; however, heroically devoted to my trust, I
hazarded the attempt, and ended by bringing out several additional tales
of turpitude in the life and times of M'Wilkin.
"Make room there in the passage! The lady has fainted," cried the macer.
I started to my feet, and was just in time to see Miss Percy conveyed
from the court in an apparently inanimate state, by the Bailie and the
agitated Strachan.
"Devilish fine-looking woman that!" observed the Advocate-Depute across
the table. "Where did your friend Mr Strachan get hold of her?"
"I really don't know. I say--are you going to address the jury for the
crown?"
"It is quite immaterial. The case is distinctly proved, and I presume
you don't intend to speak?"
"I'm not so sure of that."
"Oh, well,--in that case I suppose I must say a word or two. This closes
the evidence for the crown, my lord," and the Depute began to turn over
his papers preparatory to a short harangue.
He had just commenced his speech, when I felt a hand laid upon my
shoulder. I looked around: Strachan was behind me, pale and almost
breathless with excitement.
"Fred--can I depend upon your friendship?"
"Of course you can. What's the row?"
"Have you ten pounds about you?"
"Yes--but what do you mean to do with them? Surely you are not going to
make a blockhead of yourself by bolting?"
"No--no! give me the money--quick!"
"On your word of honour, Tom?"
"On my sacred word of honour!--That's a good fellow--thank you, Fred;"
and Strachen pocketed the currency. "Now," said he, "I have just one
other request to make."
"What's that?"
"Speak against time, there's a dear fellow! Spin out the case as long as
you can, and don't let the jury retire for at least three quarters of an
hour. I know you can do it better than any other man at the bar."
"Are you in earnest, Tom?"
"Most solemnly. My whole future happiness--nay, perhaps the life of a
human being depends upon it."
"In that case I think I shall tip them an hour."
"Heaven reward you, Fred! I never can forget your kindness!"
"But where shall I see you afterwards?"
"At the hotel. Now, my dear boy, be sure that you pitch it in, and, if
possible, get the judge to charge after you. Time's all that's
wanted--adieu!" and Tom disappeared in a twinkling.
I had little leisure to turn over the meaning of this interview in my
mind, for the address of my learned opponent was very short and pithy.
He merely pointed out the clear facts, as substantiated by evidence, and
brought home to the unhappy M'Wilkin; and concluded by demanding a
verdict on both charges contained in the indictment against the
prisoner.
"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.
"That was a fine flare-up of yours, Freddy," said Anthony Whaup, the
only other counsel for the prisoners upon the circuit. "You came it
rather strong, though, in the national line. I don't think our venerable
friend overhead half likes your ideas of international law."
"Why, yes--I confess he gave me a tolerable wigging. But what would you
have me do? I must have said something."
"Oh, by Jove, you were perfectly right! I always make a point of
speaking myself; and I can assure you that you did remarkably well. It
was a novel view, but decidedly ingenious, and may lead to great
results. If that fellow gets off, you may rely upon it there will be
some bloodshed again upon the Border."
"And a jolly calendar, of course, for next circuit. I say, Authony,--how
many cases have you got?"
"Two thefts with habit and repute, a hame-sucken, rather a good forgery,
and an assault with intent to commit."
"Long?"
"Rather--but poor pay. I haven't sacked more than nine guineas
altogether. Gad!" continued Anthony, stretching himself, "this is slow
work. I'd rather by a great deal be rowing on the canal."
"Hush! here come the jury."
They entered, took their seats, and each man in succession answered to
his name. I stole a glance at M'Wilkin. He looked as leonine as ever,
and kept winking perseveringly to the Hawickers.
"Now, gentlemen," said the clerk of court, "what is your verdict?"
The foreman rose.
"The jury, by a majority, find the charges against the prisoner NOT
PROVEN."
"Hurrah!" shouted M'Wilkin, reckless of all authority. "Hurrah! I
say--you counsellor in the wig--ye shanna want a sheep's head thae three
years, if there's ane to be had on the Border!"
And in this way I gained my first acquittal.