We have strict statutes, and most biting laws —
The needful bits and curbs for headstrong steeds —
Which, for these fourteen years, we have let sleep,
Like to an o’ergrown lion in a cave,
That goes not out to prey.
Measure for Measure.
“Euphemia Deans,” said the presiding Judge, in an accent in which pity was blended with dignity, “stand up and listen to the criminal indictment now to be preferred against you.”
The unhappy girl, who had been stupified by the confusion through which the guards had forced a passage, cast a bewildered look on the multitude of faces around her, which seemed to tapestry, as it were, the walls, in one broad slope from the ceiling to the floor, with human countenances, and instinctively obeyed a command, which rung in her ears like the trumpet of the judgment-day.
“Put back your hair, Effie,” said one of the macers. For her beautiful and abundant tresses of long fair hair, which, according to the costume of the country, unmarried women were not allowed to cover with any sort of cap, and which, alas! Effie dared no longer confine with the snood or riband, which implied purity of maiden-fame, now hung unbound and dishevelled over her face, and almost concealed her features. On receiving this hint from the attendant, the unfortunate young woman, with a hasty, trembling, and apparently mechanical compliance, shaded back from her face her luxuriant locks, and showed to the whole court, excepting one individual, a countenance, which, though pale and emaciated, was so lovely amid its agony, that it called forth a universal murmur of compassion and sympathy. Apparently the expressive sound of human feeling recalled the poor girl from the stupor of fear, which predominated at first over every other sensation, and awakened her to the no less painful sense of shame and exposure attached to her present situation. Her eye, which had at first glanced wildly around, was turned on the ground; her cheek, at first so deadly pale, began gradually to be overspread with a faint blush, which increased so fast, that, when in agony of shame she strove to conceal her face, her temples, her brow, her neck, and all that her slender fingers and small palms could not cover, became of the deepest crimson.
All marked and were moved by these changes, excepting one. It was old Deans, who, motionless in his seat, and concealed, as we have said, by the corner of the bench, from seeing or being seen, did nevertheless keep his eyes firmly fixed on the ground, as if determined that, by no possibility whatever, would he be an ocular witness of the shame of his house.
“Ichabod!” he said to himself —“Ichabod! my glory is departed!”
While these reflections were passing through his mind, the indictment, which set forth in technical form the crime of which the panel stood accused, was read as usual, and the prisoner was asked if she was Guilty, or Not Guilty.
“Not guilty of my poor bairn’s death,” said Effie Deans, in an accent corresponding in plaintive softness of tone to the beauty of her features, and which was not heard by the audience without emotion.
The presiding Judge next directed the counsel to plead to the relevancy; that is, to state on either part the arguments in point of law, and evidence in point of fact, against and in favour of the criminal; after which it is the form of the Court to pronounce a preliminary judgment, sending the cause to the cognisance of the jury, or assize.
The counsel for the crown briefly stated the frequency of the crime of infanticide, which had given rise to the special statute under which the panel stood indicted. He mentioned the various instances, many of them marked with circumstances of atrocity, which had at length induced the King’s Advocate, though with great reluctance, to make the experiment, whether, by strictly enforcing the Act of Parliament which had been made to prevent such enormities, their occurrence might be prevented. “He expected,” he said, “to be able to establish by witnesses, as well as by the declaration of the panel herself, that she was in the state described by the statute. According to his information, the panel had communicated her pregnancy to no one, nor did she allege in her own declaration that she had done so. This secrecy was the first requisite in support of the indictment. The same declaration admitted, that she had borne a male child, in circumstances which gave but too much reason to believe it had died by the hands, or at least with the knowledge or consent, of the unhappy mother. It was not, however, necessary for him to bring positive proof that the panel was accessory to the murder, nay, nor even to prove, that the child was murdered at all. It was sufficient to support the indictment, that it could not be found. According to the stern, but necessary severity of this statute, she who should conceal her pregnancy, who should omit to call that assistance which is most necessary on such occasions, was held already to have meditated the death of her offspring, as an event most likely to be the consequence of her culpable and cruel concealment. And if, under such circumstances, she could not alternatively show by proof that the infant had died a natural death, or produce it still in life, she must, under the construction of the law, be held to have murdered it, and suffer death accordingly.”
The counsel for the prisoner, Mr. Fairbrother, a man of considerable fame in his profession, did not pretend directly to combat the arguments of the King’s Advocate. He began by lamenting that his senior at the bar, Mr. Langtale, had been suddenly called to the county of which he was sheriff, and that he had been applied to, on short warning, to give the panel his assistance in this interesting case. He had had little time, he said, to make up for his inferiority to his learned brother by long and minute research; and he was afraid he might give a specimen of his incapacity, by being compelled to admit the accuracy of the indictment under the statute. “It was enough for their Lordships,” he observed, “to know that such was the law, and he admitted the advocate had a right to call for the usual interlocutor of relevancy.” But he stated, “that when he came to establish his case by proof, he trusted to make out circumstances which would satisfactorily elide the charge in the libel. His client’s story was a short, but most melancholy one. She was bred up in the strictest tenets of religion and virtue, the daughter of a worthy and conscientious person, who, in evil times, had established a character for courage and religion, by becoming a sufferer for conscience’ sake.”
David Deans gave a convulsive start at hearing himself thus mentioned, and then resumed the situation, in which, with his face stooped against his hands, and both resting against the corner of the elevated bench on which the Judges sate, he had hitherto listened to the procedure in the trial. The Whig lawyers seemed to be interested; the Tories put up their lip.
“Whatever may be our difference of opinion,” resumed the lawyer, whose business it was to carry his whole audience with him if possible, “concerning the peculiar tenets of these people” (here Deans groaned deeply), “it is impossible to deny them the praise of sound, and even rigid morals, or the merit of training up their children in the fear of God; and yet it was the daughter of such a person whom a jury would shortly be called upon, in the absence of evidence, and upon mere presumptions, to convict of a crime more properly belonging to a heathen, or a savage, than to a Christian and civilised country. It was true,” he admitted, “that the excellent nurture and early instruction which the poor girl had received, had not been sufficient to preserve her from guilt and error. She had fallen a sacrifice to an inconsiderate affection for a young man of prepossessing manners, as he had been informed, but of a very dangerous and desperate character. She was seduced under promise of marriage — a promise, which the fellow might have, perhaps, done her justice by keeping, had he not at that time been called upon by the law to atone for a crime, violent and desperate in itself, but which became the preface to another eventful history, every step of which was marked by blood and guilt, and the final termination of which had not even yet arrived. He believed that no one would hear him without surprise, when he stated that the father of this infant now amissing, and said by the learned Advocate to have been murdered, was no other than the notorious George Robertson, the accomplice of Wilson, the hero of the memorable escape from the Tolbooth Church, and as no one knew better than his learned friend the Advocate, the principal actor in the Porteous conspiracy.”
“I am sorry to interrupt a counsel in such a case as the present,” said, the presiding Judge; “but I must remind the learned gentleman that he is travelling out of the case before us.”
The counsel bowed and resumed. “He only judged it necessary,” he said, “to mention the name and situation of Robertson, because the circumstance in which that character was placed, went a great way in accounting for the silence on which his Majesty’s counsel had laid so much weight, as affording proof that his client proposed to allow no fair play for its life to the helpless being whom she was about to bring into the world. She had not announced to her friends that she had been seduced from the path of honour — and why had she not done so? — Because she expected daily to be restored to character, by her seducer doing her that justice which she knew to be in his power, and believed to be in his inclination. Was it natural — was it reasonable — was it fair, to expect that she should in the interim, become felo de se of her own character, and proclaim her frailty to the world, when she had every reason to expect, that, by concealing it for a season, it might be veiled for ever? Was it not, on the contrary, pardonable, that, in such an emergency, a young woman, in such a situation, should be found far from disposed to make a confidant of every prying gossip, who, with sharp eyes, and eager ears, pressed upon her for an explanation of suspicious circumstances, which females in the lower — he might say which females of all ranks, are so alert in noticing, that they sometimes discover them where they do not exist? Was it strange or was it criminal, that she should have repelled their inquisitive impertinence with petulant denials? The sense and feeling of all who heard him would answer directly in the negative. But although his client had thus remained silent towards those to whom she was not called upon to communicate her situation — to whom,” said the learned gentleman, “I will add, it would have been unadvised and improper in her to have done so; yet, I trust, I shall remove this case most triumphantly from under the statute, and obtain the unfortunate young woman an honourable dismission from your Lordships’ bar, by showing that she did, in due time and place, and to a person most fit for such confidence, mention the calamitous circumstances in which she found herself. This occurred after Robertson’s conviction, and when he was lying in prison in expectation of the fate which his comrade Wilson afterwards suffered, and from which he himself so strangely escaped. It was then, when all hopes of having her honour repaired by wedlock vanished from her eyes — when an union with one in Robertson’s situation, if still practicable, might, perhaps, have been regarded rather as an addition to her disgrace — it was then, that I trust to be able to prove that the prisoner communicated and consulted with her sister, a young woman several years older than herself, the daughter of her father, if I mistake not, by a former marriage, upon the perils and distress of her unhappy situation.”
“If, indeed, you are able to instruct that point, Mr. Fairbrother,” said the presiding Judge.
“If I am indeed able to instruct that point, my Lord,” resumed Mr. Fairbrother, “I trust not only to serve my client, but to relieve your Lordships from that which I know you feel the most painful duty of your high office; and to give all who now hear me the exquisite pleasure of beholding a creature, so young, so ingenuous, and so beautiful, as she that is now at the bar of your Lordships’ Court, dismissed from thence in safety and in honour.”
This address seemed to affect many of the audience, and was followed by a slight murmur of applause. Deans, as he heard his daughter’s beauty and innocent appearance appealed to, was involuntarily about to turn his eyes towards her; but, recollecting himself, he bent them again on the ground with stubborn resolution.
“Will not my learned brother, on the other side of the bar,” continued the advocate, after a short pause, “share in this general joy, since, I know, while he discharges his duty in bringing an accused person here, no one rejoices more in their being freely and honourably sent hence? My learned brother shakes his head doubtfully, and lays his hand on the panel’s declaration. I understand him perfectly — he would insinuate that the facts now stated to your Lordships are inconsistent with the confession of Euphemia Deans herself. I need not remind your Lordships, that her present defence is no whit to be narrowed within the bounds of her former confession; and that it is not by any account which she may formerly have given of herself, but by what is now to be proved for or against her, that she must ultimately stand or fall. I am not under the necessity of accounting for her choosing to drop out of her declaration the circumstances of her confession to her sister. She might not be aware of its importance; she might be afraid of implicating her sister; she might even have forgotten the circumstance entirely, in the terror and distress of mind incidental to the arrest of so young a creature on a charge so heinous. Any of these reasons are sufficient to account for her having suppressed the truth in this instance, at whatever risk to herself; and I incline most to her erroneous fear of criminating her sister, because I observe she has had a similar tenderness towards her lover (however undeserved on his part), and has never once mentioned Robertson’s name from beginning to end of her declaration.
“But, my Lords,” continued Fairbrother, “I am aware the King’s Advocate will expect me to show, that the proof I offer is consistent with other circumstances of the case, which I do not and cannot deny. He will demand of me how Effie Deans’s confession to her sister, previous to her delivery, is reconcilable with the mystery of the birth — with the disappearance, perhaps the murder (for I will not deny a possibility which I cannot disprove) of the infant. My Lords, the explanation of this is to be found in the placability, perchance, I may say, in the facility and pliability, of the female sex. The dulcis Amaryllidis irae, as your Lordships well know, are easily appeased; nor is it possible to conceive a woman so atrociously offended by the man whom she has loved, but that she will retain a fund of forgiveness, upon which his penitence, whether real or affected, may draw largely, with a certainty that his bills will be answered. We can prove, by a letter produced in evidence, that this villain Robertson, from the bottom of the dungeon whence he already probably meditated the escape, which he afterwards accomplished by the assistance of his comrade, contrived to exercise authority over the mind, and to direct the motions, of this unhappy girl. It was in compliance with his injunctions, expressed in that letter, that the panel was prevailed upon to alter the line of conduct which her own better thoughts had suggested; and, instead of resorting, when her time of travail approached, to the protection of her own family, was induced to confide herself to the charge of some vile agent of this nefarious seducer, and by her conducted to one of those solitary and secret purlieus of villany, which, to the shame of our police, still are suffered to exist in the suburbs of this city, where, with the assistance, and under the charge, of a person of her own sex, she bore a male child, under circumstances which added treble bitterness to the woe denounced against our original mother. What purpose Robertson had in all this, it is hard to tell, or even to guess. He may have meant to marry the girl, for her father is a man of substance. But, for the termination of the story, and the conduct of the woman whom he had placed about the person of Euphemia Deans, it is still more difficult to account. The unfortunate young woman was visited by the fever incidental to her situation. In this fever she appears to have been deceived by the person that waited on her, and, on recovering her senses, she found that she was childless in that abode of misery. Her infant had been carried off, perhaps for the worst purposes, by the wretch that waited on her. It may have been murdered, for what I can tell.”
He was here interrupted by a piercing shriek, uttered by the unfortunate prisoner. She was with difficulty brought to compose herself. Her counsel availed himself of the tragical interruption, to close his pleading with effect.
“My Lords,” said he, “in that piteous cry you heard the eloquence of maternal affection, far surpassing the force of my poor words — Rachel weeping for her children! Nature herself bears testimony in favour of the tenderness and acuteness of the prisoner’s parental feelings. I will not dishonour her plea by adding a word more.”
“Heard ye ever the like o’ that, Laird?” said Saddletree to Dumbiedikes, when the counsel had ended his speech. “There’s a chield can spin a muckle pirn out of a wee tait of tow! Deil haet he kens mair about it than what’s in the declaration, and a surmise that Jeanie Deans suld hae been able to say something about her sister’s situation, whilk surmise, Mr. Crossmyloof says, rests on sma’ authority. And he’s cleckit this great muckle bird out o’ this wee egg! He could wile the very flounders out o’ the Firth. — What garr’d my father no send me to Utrecht? — But whisht, the Court is gaun to pronounce the interlocutor of relevancy.”
And accordingly the Judges, after a few words, recorded their judgment, which bore, that the indictment, if proved, was relevant to infer the pains of law: And that the defence, that the panel had communicated her situation to her sister, was a relevant defence: And, finally, appointed the said indictment and defence to be submitted to the judgment of an assize.
Last updated Monday, December 22, 2014 at 10:54