"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.




CHAPTER TWENTY-THIRD.


             Law, take thy victim--May she find the mercy
             In yon mild heaven, which this hard world denies her!

It was an hour ere the jurors returned, and as they traversed the crowd
with slow steps, as men about to discharge themselves of a heavy and
painful responsibility, the audience was hushed into profound, earnest,
and awful silence.

"Have you agreed on your chancellor, gentlemen?" was the first question
of the Judge.

The foreman, called in Scotland the chancellor of the jury, usually the
man of best rank and estimation among the assizers, stepped forward, and
with a low reverence, delivered to the Court a sealed paper, containing
the verdict, which, until of late years, that verbal returns are in some
instances permitted, was always couched in writing. The jury remained
standing while the Judge broke the seals, and having perused the paper,
handed it with an air of mournful gravity down to the clerk of Court, who
proceeded to engross in the record the yet unknown verdict, of which,
however, all omened the tragical contents. A form still remained,
trifling and unimportant in itself, but to which imagination adds a sort
of solemnity, from the awful occasion upon which it is used. A lighted
candle was placed on the table, the original paper containing the verdict
was enclosed in a sheet of paper, and, sealed with the Judge's own
signet, was transmitted to the Crown Office, to be preserved among other
records of the same kind. As all this is transacted in profound silence,
the producing and extinguishing the candle seems a type of the human
spark which is shortly afterwards doomed to be quenched, and excites in
the spectators something of the same effect which in England is obtained
by the Judge assuming the fatal cap of judgment. When these preliminary
forms had been gone through, the Judge required Euphemia Deans to attend
to the verdict to be read.

After the usual words of style, the verdict set forth, that the Jury
having made choice of John Kirk, Esq., to be their chancellor, and Thomas
Moore, merchant, to be their clerk, did, by a plurality of voices, find
the said Euphemia Deans Guilty of the crime libelled; but, in
consideration of her extreme youth, and the cruel circumstances of her
case, did earnestly entreat that the Judge would recommend her to the
mercy of the Crown.

"Gentlemen," said the Judge, "you have done your duty--and a painful one
it must have been to men of humanity like you. I will undoubtedly
transmit your recommendation to the throne. But it is my duty to tell all
who now hear me, but especially to inform that unhappy young woman, in
order that her mind may be settled accordingly, that I have not the least
hope of a pardon being granted in the present case. You know the crime
has been increasing in this land, and I know farther, that this has been
ascribed to the lenity in which the laws have been exercised, and that
there is therefore no hope whatever of obtaining a remission for this
offence." The jury bowed again, and, released from their painful office,
dispersed themselves among the mass of bystanders.

The Court then asked Mr. Fairbrother whether he had anything to say, why
judgment should not follow on the verdict? The counsel had spent some
time in persuing and reperusing the verdict, counting the letters in each
juror's name, and weighing every phrase, nay, every syllable, in the
nicest scales of legal criticism. But the clerk of the jury had
understood his business too well. No flaw was to be found, and
Fairbrother mournfully intimated, that he had nothing to say in arrest of
judgment.

The presiding Judge then addressed the unhappy prisoner:--"Euphemia
Deans, attend to the sentence of the Court now to be pronounced against
you."

She rose from her seat, and with a composure far greater than could have
been augured from her demeanour during some parts of the trial, abode the
conclusion of the awful scene. So nearly does the mental portion of our
feelings resemble those which are corporeal, that the first severe blows
which we receive bring with them a stunning apathy, which renders us
indifferent to those that follow them. Thus said Mandrin, when he was
undergoing the punishment of the wheel; and so have all felt, upon whom
successive inflictions have descended with continuous and reiterated
violence.*

* [The notorious Mandrin was known as the Captain-General of French &
smugglers. See a Tract on his exploits, printed 1753.]

"Young woman," said the Judge, "it is my painful duty to tell you, that
your life is forfeited under a law, which, if it may seem in some degree
severe, is yet wisely so, to render those of your unhappy situation aware
what risk they run, by concealing, out of pride or false shame, their
lapse from virtue, and making no preparation to save the lives of the
unfortunate infants whom they are to bring into the world. When you
concealed your situation from your mistress, your sister, and other
worthy and compassionate persons of your own sex, in whose favour your
former conduct had given you a fair place, you seem to me to have had in
your contemplation, at least, the death of the helpless creature, for
whose life you neglected to provide. How the child was disposed
of--whether it was dealt upon by another, or by yourself--whether the
extraordinary story you have told is partly false, or altogether so, is
between God and your own conscience. I will not aggravate your distress
by pressing on that topic, but I do most solemnly adjure you to employ
the remaining space of your time in making your peace with God, for which
purpose such reverend clergymen, as you yourself may name, shall have
access to you. Notwithstanding the humane recommendation of the jury, I
cannot afford to you, in the present circumstances of the country, the
slightest hope that your life will be prolonged beyond the period
assigned for the execution of your sentence. Forsaking, therefore, the
thoughts of this world, let your mind be prepared by repentance for those
of more awful moments--for death, judgment, and eternity.--Doomster, read
the sentence."*

* Note N. Doomster, or Dempster, of Court.

When the Doomster showed himself, a tall haggard figure, arrayed in a
fantastic garment of black and grey, passmented with silver lace, all
fell back with a sort of instinctive horror, and made wide way for him to
approach the foot of the table. As this office was held by the common
executioner, men shouldered each other backward to avoid even the touch
of his garment, and some were seen to brush their own clothes, which had
accidentally become subject to such contamination. A sound went through
the Court, produced by each person drawing in their breath hard, as men
do when they expect or witness what is frightful, and at the same time
affecting. The caitiff villain yet seemed, amid his hardened brutality,
to have some sense of his being the object of public detestation, which
made him impatient of being in public, as birds of evil omen are anxious
to escape from daylight, and from pure air.

Repeating after the Clerk of Court, he gabbled over the words of the
sentence, which condemned Euphemia Deans to be conducted back to the
Tolbooth of Edinburgh, and detained there until Wednesday the day of ---;
and upon that day, betwixt the hours of two and four o'clock afternoon,
to be conveyed to the common place of execution, and there hanged by the
neck upon a gibbet. "And this," said the Doomster, aggravating his harsh
voice, "I pronounce for _doom._"

He vanished when he had spoken the last emphatic word, like a foul fiend
after the purpose of his visitation had been accomplished; but the
impression of horror excited by his presence and his errand, remained
upon the crowd of spectators.

The unfortunate criminal,--for so she must now be termed,--with more
susceptibility, and more irritable feelings than her father and sister,
was found, in this emergence, to possess a considerable share of their
courage. She had remained standing motionless at the bar while the
sentence was pronounced, and was observed to shut her eyes when the
Doomster appeared. But she was the first to break silence when that evil
form had left his place.

"God forgive ye, my Lords," she said, "and dinna be angry wi' me for
wishing it--we a' need forgiveness.--As for myself, I canna blame ye, for
ye act up to your lights; and if I havena killed my poor infant, ye may
witness a' that hae seen it this day, that I hae been the means of
killing my greyheaded father--I deserve the warst frae man, and frae God
too--But God is mair mercifu' to us than we are to each other."

With these words the trial concluded. The crowd rushed, bearing forward
and shouldering each other, out of the Court, in the same tumultuary mode
in which they had entered; and, in excitation of animal motion and animal
spirits, soon forgot whatever they had felt as impressive in the scene
which they had witnessed. The professional spectators, whom habit and
theory had rendered as callous to the distress of the scene as medical
men are to those of a surgical operation, walked homeward in groups,
discussing the general principle of the statute under which the young
woman was condemned, the nature of the evidence, and the arguments of the
counsel, without considering even that of the Judge as exempt from their
criticism.

The female spectators, more compassionate, were loud in exclamation
against that part of the Judge's speech which seemed to cut off the hope
of pardon.

"Set him up, indeed," said Mrs. Howden, "to tell us that the poor lassie
behoved to die, when Mr. John Kirk, as civil a gentleman as is within the
ports of the town, took the pains to prigg for her himsell."

"Ay, but, neighbour," said Miss Damahoy, drawing up her thin maidenly
form to its full height of prim dignity--"I really think this unnatural
business of having bastard-bairns should be putten a stop to.--There isna
a hussy now on this side of thirty that you can bring within your doors,
but there will be chields--writer-lads, prentice-lads, and what
not--coming traiking after them for their destruction, and discrediting
ane's honest house into the bargain--I hae nae patience wi' them."

"Hout, neighbour," said Mrs. Howden, "we suld live and let live--we hae
been young oursells, and we are no aye to judge the warst when lads and
lasses forgather."

"Young oursells! and judge the warst!" said Miss Damahoy. "I am no sae
auld as that comes to, Mrs. Howden; and as for what ye ca' the warst, I
ken neither good nor bad about the matter, I thank my stars!"

"Ye are thankfu' for sma' mercies, then," said Mrs. Howden with a toss of
her head; "and as for you and young--I trow ye were doing for yoursell at
the last riding of the Scots Parliament, and that was in the gracious
year seven, sae ye can be nae sic chicken at ony rate."

Plumdamas, who acted as squire of the body to the two contending dames,
instantly saw the hazard of entering into such delicate points of
chronology, and being a lover of peace and good neighbourhood, lost no
time in bringing back the conversation to its original subject.

"The Judge didna tell us a' he could hae tell'd us, if he had liked,
about the application for pardon, neighbours," said he "there is aye a
wimple in a lawyer's clew; but it's a wee bit of a secret."

"And what is't--what is't, neighbour Plumdamas?" said Mrs. Howden and
Miss Damahoy at once, the acid fermentation of their dispute being at
once neutralised by the powerful alkali implied in the word secret.

"Here's Mr. Saddletree can tell ye that better than me, for it was him
that tauld me," said Plumdamas as Saddletree came up, with his wife
hanging on his arm, and looking very disconsolate.

When the question was put to Saddletree, he looked very scornful. "They
speak about stopping the frequency of child-murder," said he, in a
contemptuous tone; "do ye think our auld enemies of England, as Glendook
aye ca's them in his printed Statute-book, care a boddle whether we didna
kill ane anither, skin and birn, horse and foot, man, woman, and bairns,
all and sindry, _omnes et singulos,_ as Mr. Crossmyloof says? Na, na,
it's no _that_ hinders them frae pardoning the bit lassie. But here is
the pinch of the plea. The king and queen are sae ill pleased wi' that
mistak about Porteous, that deil a kindly Scot will they pardon again,
either by reprieve or remission, if the haill town o' Edinburgh should be
a' hanged on ae tow."

"Deil that they were back at their German kale-yard then, as my neighbour
MacCroskie ca's it," said Mrs. Howden, "an that's the way they're gaun to
guide us!"

"They say for certain," said Miss Damahoy, "that King George flang his
periwig in the fire when he heard o' the Porteous mob."

"He has done that, they say," replied Saddletree, "for less thing."

"Aweel," said Miss Damahoy, "he might keep mair wit in his anger--but
it's a' the better for his wigmaker, I'se warrant."

"The queen tore her biggonets for perfect anger,--ye'll hae heard o' that
too?" said Plumdamas. "And the king, they say, kickit Sir Robert Walpole
for no keeping down the mob of Edinburgh; but I dinna believe he wad
behave sae ungenteel."

"It's dooms truth, though," said Saddletree; "and he was for kickin' the
Duke of Argyle* too."

* Note O. John Duke of Argyle and Greenwich.

"Kickin' the Duke of Argyle!" exclaimed the hearers at once, in all the
various combined keys of utter astonishment.

"Ay, but MacCallummore's blood wadna sit down wi' that; there was risk of
Andro Ferrara coming in thirdsman."

"The duke is a real Scotsman--a true friend to the country," answered
Saddletree's hearers.

"Ay, troth is he, to king and country baith, as ye sall hear," continued
the orator, "if ye will come in bye to our house, for it's safest
speaking of sic things _inter parietes._"

When they entered his shop, he thrust his prentice boy out of it, and,
unlocking his desk, took out, with an air of grave and complacent
importance, a dirty and crumpled piece of printed paper; he observed,
"This is new corn--it's no every body could show you the like o' this.
It's the duke's speech about the Porteous mob, just promulgated by the
hawkers. Ye shall hear what Ian Roy Cean* says for himsell.

* Red John the warrior, a name personal and proper in the Highlands to
John Duke of Argyle and Greenwich, as MacCummin was that of his race or
dignity.

My correspondent bought it in the Palace-yard, that's like just under the
king's nose--I think he claws up their mittans!--It came in a letter
about a foolish bill of exchange that the man wanted me to renew for him.
I wish ye wad see about it, Mrs. Saddletree."

Honest Mrs. Saddletree had hitherto been so sincerely distressed about
the situation of her unfortunate prote'ge'e, that she had suffered her
husband to proceed in his own way, without attending to what he was
saying. The words bills and renew had, however, an awakening sound in
them; and she snatched the letter which her husband held towards her, and
wiping her eyes, and putting on her spectacles, endeavoured, as fast as
the dew which collected on her glasses would permit, to get at the
meaning of the needful part of the epistle; while her husband, with
pompous elevation, read an extract from the speech.

"I am no minister, I never was a minister, and I never will be one"

"I didna ken his Grace was ever designed for the ministry," interrupted
Mrs. Howden.

"He disna mean a minister of the gospel, Mrs. Howden, but a minister of
state," said Saddletree, with condescending goodness, and then proceeded:
"The time was when I might have been a piece of a minister, but I was too
sensible of my own incapacity to engage in any state affair. And I thank
God that I had always too great a value for those few abilities which
Nature has given me, to employ them in doing any drudgery, or any job of
what kind soever. I have, ever since I set out in the world (and I
believe few have set out more early), served my prince with my tongue; I
have served him with any little interest I had, and I have served him
with my sword, and in my profession of arms. I have held employments
which I have lost, and were I to be to-morrow deprived of those which
still remain to me, and which I have endeavoured honestly to deserve, I
would still serve him to the last acre of my inheritance, and to the last
drop of my blood"

Mrs. Saddletree here broke in upon the orator:--"Mr. Saddletree, what
_is_ the meaning of a' this? Here are ye clavering about the Duke of
Argyle, and this man Martingale gaun to break on our hands, and lose us
gude sixty pounds--I wonder what duke will pay that, quotha--I wish the
Duke of Argyle would pay his ain accounts--He is in a thousand punds
Scots on thae very books when he was last at Roystoun--I'm no saying but
he's a just nobleman, and that it's gude siller--but it wad drive ane
daft to be confused wi' deukes and drakes, and thae distressed folk
up-stairs, that's Jeanie Deans and her father. And then, putting the very
callant that was sewing the curpel out o' the shop, to play wi'
blackguards in the close--Sit still, neighbours, it's no that I mean to
disturb _you;_ but what between courts o' law and courts o' state, and
upper and under parliaments, and parliament houses, here and in London,
the gudeman's gane clean gyte, I think."

The gossips understood civility, and the rule of doing as they would be
done by, too well, to tarry upon the slight invitation implied in the
conclusion of this speech, and therefore made their farewells and
departure as fast as possible, Saddletree whispering to Plundamas that he
would "meet him at MacCroskie's" (the low-browed shop in the
Luckenbooths, already mentioned), "in the hour of cause, and put
MacCallummore's speech in his pocket, for a' the gudewife's din."

When Mrs. Saddletree saw the house freed of her importunate visitors, and
the little boy reclaimed from the pastimes of the wynd to the exercise of
the awl, she went to visit her unhappy relative, David Deans, and his
elder daughter, who had found in her house the nearest place of friendly
refuge.