The Heart of Mid-Lothian, Complete by Walter Scott (best new books to read .TXT) 📖

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