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Anna Jane Vardill

Extracts from a Lawyer’s Portfolio

Part 4


“It appears from the Regian Majestatem, that Trial by Jury was used in Scotland as early as David 1st, 1124. From Olaus Wormius (Monu. Danm. cap. 10 p. 72) that the trial by twelve men was introduced into Denmark by Regnerus, who began to reign in 820, from whom it was borrowed by Ethelred. ’Tis not improbable that our jury decided originally without a judge all controversies within a certain district. We are in the dark concerning their proceedings till the time of Edward II. when the Year Book began. Unanimity was required, 1st, out of mercy to the prisoner; 2dly, from the danger of attaints against jurymen; 3dly, to prevent any individual from being obnoxious to the crown or to parties. In the time of Henry III, this unanimity was not required in the first twelve impannelled, for, according to Bracton, if they disagree, a number equal to the dissentients, or at least six to four, were added. From Fleta it seems this was the practice in the next reign, but the judge then appears to have had a power to oblige the first twelve to agree. In Scotland the decision is by a majority even of one, and the number is fifteen. Aldermen and citizens of London in the third Henry’s reign had the privilege for a trespass against the King to be tried by twelve citizens, for a murder by thirty, and for trespass against a stranger by the oath of six citizens and himself. (Vide Fabian’s Chronicle.)—Hickes, in his Thesaurus, the most learned research into Saxon antiquities, proves it was unknown to the Saxons, and supposes it was introduced into England by Henry II. (Ibid.)” .....

Such were the contents of a torn paper which the wind wafted to the feet of Sheriff Elliott, as he took his morning walk. He said as English lawyers are wont to say on a more important occasion—“I spy a Brother;” and opened the next fold with great care and curiosity.

“It is remarkable, that the English have always preserved an even number in their juries; thinking, perhaps, that among every twelve men there will be a majority of wise ones, or that the wise minority may always govern the majority of fools: but, saith my learned friend Silas Mucklequack, commonly called Slyass, ‘even if the whole twelve should judge wrong, one fool woman would set them right, for she would contradict them all.’”

The Sheriff laughed, having no womankind at home, and turned another fold. “Everybody knows how a learned German ornithologist contrived to foster his motherless broods of chickens while he pursued his studies. Now, saith the aforesaid Silas, if such broods were properly distributed in the chambers of the senate, in courts of law, colleges, and coffee-houses, where a few irrelevant chirpings and crowings would not be strange, long sittings would prove marvellously useful, and speculating philosophers might be tolerably certain of providing their own dinners, and something for the benefit of the state.”

Mr. Elliot looked round for the probable owner of these citations, but saw no one except an old hen-wife at the door of her cothouse. “Truly,"” said he to himself, “this rogue’s wit runs through his law like quicksilver through a tube of tough leather—What will come next?”—But he found only a few lover-like verses addressed to an “Elfin Arrow,” commonly called a Scotch pebble.

Neil Elliot, Sheriff-depute of a Scotch district, had once claimed only the humble designation of writer to the signet; but powerful connections, quick talents, and a happy address, placed him soon among the most important commoners in the west-country. He was as earnestly sought on festival-days as at magisterial meetings and arbitraments; and perhaps the fragment he had found was more touching to the humorous than the legal polity of his character. He perused it twice before he noticed a letter lying on his breakfast-table, addressed to him in the same hand-writing. It contained a concise and modest petition for employment among his junior clerks, with an intimation that family circumstances deprived the writer of any recommendation, except that which the Sheriff’s benevolence might find in his diligence and integrity. Mr. Elliot held this appeal in his hand when his servant entered to remove the multifarious abundance of a Scotch breakfast; and after some preamble, he enquired if the person who waited his reply had the air of a lawyer’s pupil or clerk.

Silas Mucklequack was on some occasions a clerk himself, and he answered his master’s question with professional gravity—“An’ he’s to live like ane of us, sir, by what comes frae his mouth, he’s right to put sae muckle into it. I ne’er saw sic a keen set lad.”—“I asked you,” said the Sheriff, hiding an extra dimple in his sleek face, “whether his appearance and dimensions are such as would be decent in my office, and suited to his profession?”—“He’ll do well enow,” answered honest Mucklequack—“he has made an unco stir among the old rats in the barn—It’s my thinking, sir, he would dieve a whole synod of elders.”—Elliot stopped him by issuing his command for the youth’s introduction, and presently a stranger stood before him, whose dress, though gentlemanly, was soiled, as it seemed, by a long journey on foot, and unsuited to the singular delicacy of his form and aspect. “Your name is Milton?” said the Sheriff, smiling at his visitor’s resemblance to that soft and blooming beauty which the great bard is said to have possessed when a female troubadour left her tablets by his side to express its effect. The youth’s eye had indeed that tender brightness and transparency observed in early portraits of Milton in his boyhood, shaded by the same kind of waving hair, whose rich tint was hardly required to embellish by contrast the extreme fairness of his cheek. The Sheriff thought that such must be the eye which, according to Scotch proverb, may “split a stone” and addressed his enquiries with more blandishment than success. Young Milton’s tone was coldly reserved, and his answers only amounted to repetitions that he had no friends or home, and would consider humble and gratuitous employment as bounty till his abilities had been manifested.

The Sheriff had seen something more in Mucklequack’s evasive answers than the mere dryness of privileged humour; and having dismissed the petitioner with a request to await his determination till the next morning, he began a private and close scrutiny with his servant. But the servitor of the law had been too long acquainted with demurs and detours to yield his secret easily: and Elliot needed all his skill to wring from him that Milton was the offending and discarded son of a neighbouring gentleman, whose inflexible character was well supported by his ample fortune. He discovered also that no slight error could have caused the total dismission of an only son loved even to dotage, and generally expected to enjoy all that the courtesy of Scotch laws allows a reputed father to bestow. The Sheriff formed his own opinion, and mounted his horse to visit Cunningham of Blackire himself.

A large round promontory, single and detached from the long link of heathy hills behind and opposite, and still more distinguished by a black covering of forest-trees, gave its name to Cunningham’s mansion. As Elliot plunged into the road which led him into its depths of shade, he mused on the fittest means of introducing his purpose to a father whose character was too upright to permit a suspicion of unjustified resentment, and too stern to allow easy atonement. His meditations were ended by Cunningham’s approach on horseback. They were little more than strangers to each other's persons, but, as is usual in remote districts, fully acquainted with the situation and repute each possessed. The Sheriff’s heart and countenance were well suited to an intercessor, and he opened his mission with the gentlest caution towards the feelings of an angry parent and the safety of a son who had thrown himself on his protection. Cunningham of Blackire listened courteously but unmoved, and answered in ambiguous hints respecting the punishment due to felony, and the scandal of insulting a young female under her guardian’s roof. “Let him work, sir!” he suddenly exclaimed, with an almost purple flush of indignation—“wiser laws than ours have deemed labour a more useful punishment than imprisonment or death.”—“Blackire,” replied the Sheriff gravely, “I have been compelled to study human nature, and cannot believe that the miseries heaped on a young mind will fertilize it as the most disgustful compost enriches the earth. This coarse thought is itself a sample of the fruits which such cultivation produces. Hard and insulting usage in youth removes the soft bloom both of virtue and beauty; and for myself,” he added, hiding his earnest purpose in a facetious air, “I would prefer a foot with a corn or chilblain to one made callous by going bare through stony paths. The corn would shrink from too rough approach, and the chilblain might be cured by gentle warmth, but the hard bare foot would probably go through mire and thorns without feeling.”

Blackire made no reply, and turned his horse into another road, while Sheriff Elliot directed his homewards, weighing the indirect accusations he had heard, and endeavouring to guess the person who had suffered these supposed outrages.

Cunningham was a bachelor like himself, and had no female guest at present, except an orphan niece under pupillage, and her governess. Common rumour had indicated that he wished to unite his ward and his acknowledged son, who could have had no temptation, therefore, to any clandestine or injurious act; and how could theft be plausibly imputed to the presumptive heir of such abundance! Elliot returned embarrassed and undecided to his home, where his suitor awaited him with a calm countenance, which he examined strictly while he announced the failure of his mediation: “But,” he added, “your father sends you this purse to…….”—“Would he give me another blow?” said Milton Cunningham, and, as he recoiled from it, his countenance darkened into a startling resemblance of his father’s. The Sheriff, still influenced in his favour by feelings which he chose neither to resist nor define, forbore any further comment, and detained him under his roof, without distinctly expressing his opinions or designs. On the sixth day, a cadet’s commission arrived from London, followed by suitable equipment, appearing to proceed from his father. Young Milton received them with a cold and stubborn sullenness, which induced the Sheriff to change his measures. Without preamble, he began by a sudden and direct appeal to his conscience, for the same reason that men attack marble with iron, and hard metals with a file. He named the broad and heavy charge indicated by his father, and the rumours which his silent obstinacy warranted. He intimated, that the noblest and strongest self-command was shewn by meeting the enquiry, and enduring the censure even of a judge too austere. Milton answered coldly, but with singular expression, “A lie has no feet”—and began to prepare for his long vovage.

Elliot saw him go to the place of embarkation without the slightest departure from his gloomy reserve, or the least abatement of that indifference which he had always shewn to suspicion or disgrace. But when the boat was ready, and the Sheriff’s eyes moistened as they took their last glance, Milton stepped back, and put a small sealed packet into his hand. “It is addressed,” said he, “to the donor of all I now possess, and I know, though I have not expressed, how much I owe him. Let him preserve this till my return, or till he hears of my death.”—“Only say that your accuser is mistaken!” returned the Sheriff eagerly—but Milton shook his head, and leaped into the boat in silence. His youth, his affecting countenance, and even his obduracy, gave him a kind of mysterious hold on his patron’s mind, which retained all the legendary romance of the Border Elliots, blended with the lavish kindness of unoccupied affections. He hoarded the packet entrusted to him with inviolable reverence to its seals; and perceiving by its address that Milton recognized his benefactor, he thought of him incessantly with that gladdening warmth which the grateful give to the beneficent.

Three years passed away without any communication between the father and son, or any apparent change in the former’s inflexible resentment. Nor was there any material alteration in his family affairs and general conduct, except more ostentatious splendor on some occasions, and querulous litigation on others. A summons had been issued against him for “count and reckoning” by the tutors and curators of a young heritor; or, as English lawyers would phrase it, for an adjustment of accompts with a minor’s guardians. Though the subject of dispute seemed trifling at first, other claims and unexpected pleas became entangled with it, till the dissolution of Cunningham’s large property seemed inevitable. Many pitied the disastrous progress of a litigating spirit, and a few were anxious to preserve Cunningham’s mind from ruinous despondency. Neil Elliot stood aloof, half-resenting the ill-success of his mediation, and more than half-suspecting some deeper cause for his neighbour’s dejection. He always believed that wounds of the mind, whether given by grief or guilt, resemble those of the body, where time makes a callus of an outward hurt, but a cancer of a hidden one. Therefore he preferred open faults and grievances to any disguise, and sought no intimacy with a man whose impenetrable character seemed like the smooth stone laid over a grave. He was musing on this subject by his bed-chamber lamp, when a courier brought a special message from Cunningham of Blackire, requiring his professional aid and instant presence. He obeyed immediately, not doubting that this late summons proceeded from his death-bed, and would be followed by some decisive communication respecting his son. Elliot’s amazement was extreme when he found Blackire in apparent health, and received his injunctions to fill up a stamped paper with a marriage contract, after which the kirk-minister would perform the ceremony.—“Are you not aware,” said Elliot, “that such a ceremony precludes in Scotland the necessity of any written precognition, as it will invest all this woman’s offspring, though of prior birth, with the rights of legitimacy?”—“She has but one,” replied Cunningham, casting down his eyes; “and I only wish by the terms of a settlement to bar her claims on my estate.”—Elliot smiled at the evasion, righly judging that her demands would be of little importance to an estate which would be soon surrendered to his creditors. “Then,” he answered, “if you only wish to exclude her from the law’s allowance of one-third of your rents and moveables, it will be sufficient to sign a settlement without any pretence of a precontract, which, however sanctioned by the courtesy of Scotland, will seem, in this instance, only a deliberate and needless falsehood.”—A dark flash escaped Cunningham’s eyes, but his determined aspect remained, and he replied, “My heirs at law are among my persecutors, and I have resolved to defeat them by giving my son rights beyond dispute, if enforced by an attested acknowledgment of private marriage.”—Elliot was silenced, for he saw under this affectation of spleen a revival of his parental love, which sought to disguise itself even in hatred to his heirs at law. Therefore he prepared a contract, with a full and formal preamble, stating an irregular marriage twenty years antecedent to this date between the parties; and Cunningham ushered him into another apartment to witness its completion. His chosen bride, the mother of his son, awaited him there with the kirk minister, and received Elliot as a total stranger, but the first glance at her face convinced him it was one he well remembered. His surprise and consternation were inexpressible, and must have been observed, if, with presence of mind which far surpassed his, she had not immediately begun the business of signature. How could Elliot act in this terrible dilemma? The subtle spirit which could confront him without shrinking, might devise falsehoods sufficient to baffle his allegations, and her willing dupe would probably sustain her. Before he had determined, the time of action was past; the minister performed the brief ceremony of a Scotch marriage, and the unwilling witness hastened away, bitterly feeling that he might have escaped reproach himself if he had resisted the first proposal of a false precontract—if, in short, he had not been tempted to abet evil by a remote hope of good. It was not too late, perhaps, to defeat this precognition, as even the courteous laws of Scotland cannot support one, if the circumstances of the parties at the period of the pretended date were such as to render a legal contract impossible. But the disgrace and misery of an investigation would fall heaviest on the innocent, and it was easy to perceive that the blandishments of a base woman had utterly bewildered and subdued Blackire’s violent spirit, as a skein of thread entangles the crocodile’s teeth. He contented himself, therefore, with hoping that he knew the worst consequences:—a hope always deceitful, and a kind of knowledge never granted to those who deviate even a single step from the right path.

Another year passed, and the Sheriff was seated by his fireside, comparing the civil institutes of various countries, with a remorseful recollection, that, by unguardedly availing himself of one, he had swept away the lineal succession of an honourable family, established a proflígate woman in its highest place, and given the rights of inheritance to a very doubtful claimant. He had once deemed the marriage-laws of England too rigid to afford refuge to early and innocent affections; and he had thought their formalities often urged imprudence into guilt; but he now gave more bitter blame to those of Scotland, which render rashness irretrievable, and artifice easy. He sighed to think the medium was not yet found between statutes that make vice desperate, and those that give it a premium and a privilege; and wiser casuists might have doubted whether moral order is most injured by laws too rigorous to be enforced, or by others whose force is a protection to offenders.

In the midst of these professional musings, Milton Cunningham was suddenly announced, and entered, after an absence of four years from his native country. There was an eager expression of enquiry in his countenance, which the Sheriff understood more fully than he could answer, for he was uncertain whether Milton had yet to learn that his father was dead insolvent, and his mother a disgraced fugitive. “I know all,” said Milton, imagining that he interpreted all his friend’s embarrassment—“but the letter!—have you preserved the letter?”—The Sheriff answered by taking it from its repository:—“Break the seal,” added his visitor in a faltering voice—“the time is come.” Elliot instantly obeyed, and saw a promissory note of ancient date for three thousand pounds, with these words in the envelope:

“The guardian of an orphan neice found this note, executed by himself to her father, in her possession. His affairs were involved—his exigencies pressing; she was under his roof, and in his power—he extorted it from her, but an unexpected witness interrupted him, and secured it. An honest and powerful advocate might give her redress—a son cannot.”

The Sheriff, raising his eyes from this statement, fixed them stedfastly on Milton, and saw its truth in the noble agony his countenance expressed. “Speak, sir, I beseech you,” he said, after a long pause—“speak to me as a lawyer, not as a friend, and let me hear the worst. I have sinned. I know—and have beggared the owner of this note, perhaps, by concealing it—but my father!”—he stopped, and burst into tears. The Sheriff replied with moist eyes—“As a lawyer, I must tell you, the statute of limitations has invalidated this note ; and even if its date was less remote, it could give no claim on your late father’s real estate, which has been surrendered to satisfy special debts. In law, therefore, the purchaser of his land cannot be charged with this, and the unfortunate creditor will find redress difficult: but as a friend I may add, that, there are other chances. Your father’s uncle died last night unmarried and intestate—his personal property is ample, and to that, at least, you may lay claim in England, by virtue of your legalized birth, and atone for this transaction.”—“My birth!” repeated the young man, starting—“it was never publicly legalized.”—“It is true,” said Elliot—“My clerk and myself were the only witnesses, and the officiating minister is dead without registering the fact—but I possess a precognition—a contract sufficient in all its forms.”—Milton seized it with flashing eyes, and read the whole eagerly—“Is there no public record?—no other proof?”—“None,” returned Elliot, chilled by the joy he betrayed—“unless this can be justified, your cousin is your uncle’s heiress.”—“There perishes the obstacle then!” said Milton, throwing it into the fire—“she will be indemnified fourfold for the lost note, and my father’s name will be saved!”—The Sheriff laid his hand on Milton’s head with an involuntary gesture of benediction—“You have atoned nobly;—but you shall not be disinherited. I am the purchaser of Blackire’s estate, and that it may satisfy every claim of honour and justice, it is ". May his fate be a powerful example! He was once a proud an honest man, yet he became an attester of falsehoods, a ruffian, and a robber, to enrich a rapacious courtezan and a stranger’s son..... I am your father!


(To be continued)

The European Magazine, Vol. 73, March 1818, pp. 193-197