Chapter FIVE: Groan O’ the Gallows (2)

Why did George Haines thus seek to link the _Worcester_ with the piracy of the _Speedy Return_? The conversations above reported between the steward and the Wilkies, the Seatons and Wood are exactly as given on the subsequent trial of Captain Green. At that trial the lawyers for Green and the rest of the crew accused with him of the piracy of the _Speedy Return_ and the murder of Drummond, sought to explain Haines’ motive by his love affair with Anne Seaton and his desire to become proprietor of the little Seaton tavern. They also laid much of his talk to the influence of liquor. There is something in both of these arguments, but it is probable that a greater motive than these two dominated him, and that was fear. With the state of the public mind in Scotland in the condition it was about Darien, the _Annandale_, the English and English East Indian traders, it is not unlikely that a notion blew about the water front when the _Worcester_ came in to Leith and was seized that perhaps this was one of the hated East India Company ships, from which it was just a short step to the suspicion that, as such, or at any rate as an Englishman trading in the East Indies, the _Worcester_ _might_ have had a hand in the disappearance of the long overdue _Speedy Return_. Evidently, reasoned the Scotchmen, the _Speedy Return_ has come to harm; nobody would harm a Scotch ship in the Far East but some Englishman; here was an Englishman from the Indies; ergo, he probably had pirated the Scotchman. This thought, more or less tangible, was all about the _Worcester’s_ men as they loafed on the water front. In those times, such was the rigor of the criminal law and the uncertainty of acquittal, innocent men would rush to turn state’s evidence and take the lesser evil of imprisonment rather than execution. That this was the condition of things would seem to be shown by the fact that Doctor May, the _Worcester’s_ surgeon, became state’s evidence, as did the slave Francesco and another black who had been shipped at Malabar, and as many others made confessions as could hope for leniency. This fear, then, working on the steward’s liquor-muddled brain, together with his desire to ingratiate himself with the Seatons, brought about the last act of a play opened by John Bowen in the Bay of Antongil in Madagascar.

With all of Scotland from north to south and east to west crying for vengeance, very little time was lost in bringing Captain Green and all the rest of his men, excluding the doctor and the two blacks, and including George Haines, who somehow missed the privilege of becoming queen’s evidence, to their trial in the old court in Parliament Square in Edinburgh.

On March 5, 1705, the men of the _Worcester_, with the sturdy and indignant Green at their head, were marched between the bare bayonets of the City Guards from the Tolbooth to the old courthouse in Parliament Square, there to stand their arraignment and trial. George Haines’ liquorous eloquence is about to prove the efficient cause of many and tragic results.

A great crowd clogged the court benches and galleries, so much so that one could not have swung a thought, much less a cat, about one. The plain attitude of these blue-bonneted folk was that the accused and the troubles of Scotland were identical. It is fatal to become a symbol.

Beneath the bench was the lawyers’ table, where now court servants were putting quills and papers and books. Already the prosecution is gathering about their end of the table,--a long string of grave lawyers, under the leadership of Procurator Fiscal, Alexander Higgins. And who will stand up for the poor sailormen? An astounding array, a most impressive alignment of legal ability will. Sir David Cunningham heads the defense, but he will soon drop out and be succeeded by Sir David Thoirs, with whom will be Sir Walter Pringle, Mr. David Forbes, Mr. George Alexander, Mr. John Spotswood and Mr. John Elphinstone. Why, these are names of as much professional weight as are those who will oppose them on behalf of the Crown.

How inspiring to behold this important company of lawyers quick to the defense of the forlorn strangers by the power of a pure love of justice and a jealous wardenship of the bright honor of the Scottish Bar! For how else could these sailors--worth not a penny between them, and with their captain but little wealthier--call to their side these advocates who had won even the dignities of knighthood in the contests of the forum?

For a distressingly cold matter of fact, however, there were several other motives which conceivably prompted the efforts of the gentlemen for the defense, and a way that you would never guess was the one by which they entered the court as procurators (attorneys) for the defense, and that was--but wait, let us not anticipate.

Sir David Cunningham smiled at Sir David Thoirs and presented his snuffbox; Sir David Cunningham bowed to the Procurator Fiscal and did not offer snuff. Mr. Procurator Fiscal could afford to overlook a little thing like that, for he felt this was to be his hour.

Presently the macers came in and the people shuffled to their feet and stood while the Judge of the High Court of Admiralty with his string of “assessors,” or specially appointed assistant judges, all in their scarlet-dappled gowns, solemnly embanked themselves on the seat of authority.

The judges sat; every one but the prisoners sat, and then Mr. Procurator Fiscal, née Higgins, arose, conscious of the spotlight, and with orotund voice emptied himself of two tremendous indictments, alike in word and effect; one directed at one group of defendants and the other shafted at another group. Canny fellow, this fiscal; he split the defendants so that, if by mischance one section were cleared, he might have better luck with the other. Evidently he was an impartial and fair-minded prosecutor.

If it were not that many men and perhaps some women have been hanged on them, those old indictments would be the law’s best joke. Here is what might be called the Fiscal’s charge proper:

“That upon one or other of the days of the months of February, March, April or May, in the year 1703,” the _Worcester_ “did encounter or meet with another ship or vessel, sailed by its own men or crew, upon the coast of Malabar, near Calicut, and the said vessel bearing a red flag, and having English or Scots aboard, at least such as spoke the English language”; which red-ensigned ship Captain Thomas Green and his crew first attacked with their sloop, and afterwards with the _Worcester_; that the defense was overcome, the defenders slain, their bodies cast into the sea and their ship looted.

Notice the fine explicitness of this indictment. On any one of the days of four months, in a vaguely indicated region, the defendants attacked a ship carrying a red flag and manned by English-speaking sailors. The implication was to be gathered that the ship was the _Speedy Return_; but the prosecution could not quite go so far as to paint a name on the bows of the red-flagged ship.

The job of defending against this blanket charge probably looked too great to Sir David Cunningham, for he drops out at this point and the load falls back on Sir David Thoirs and his colleagues.

In addition to the charge, the indictments set out, through several pages of close print, the entire evidence which the Crown expected to prove. A great rigamarole, this, containing a particular recitation of everything that George Haines had said to the widow Seaton, her daughter Anne, Will Wood of the artillery, and Jamie Wilkie, with which we are already acquainted.

Incorporated with all this, was a long-winded yarn by the ship’s doctor, May, who had been granted the comfort of turning state’s evidence, and from which it appeared that the doctor himself and some others (among whom was the second mate, Reynolds, according to the oral admission of the Fiscal) being ashore and hearing the firing of guns, came to the water’s edge and saw a captive ship riding at the stern of the _Worcester_. The cannonading had ceased by that time, so the surgeon went aboard, where he found the decks of the _Worcester_ littered with goods. He asked the reason of it all of one of the crew, whereupon John Madder, first mate, overhearing him, turned angrily to the doctor “in a tarpaulin temper” as the doctor says, and exclaimed, “D--n you! What have you to do to inquire? Meddle with your plaister-box!” The surgeon then went down to his “chest” and called for the wounded to dress them; three of whom, “Antonio Ferdinando, and one Duncan McKay, now dead, and another” came for treatment. These refused to tell him how they came by their wounds “whereupon the chirurgeon refused to dress them if they would not tell him how they got their wounds, and the said John Madder came to the chirurgeon in a passion, and asked what his business was to ask so many questions, when he did see the wounds so plain before him, calling him a blockhead for not dressing them,” and winding up by ordering the doctor ashore. There the surgeon met the ship’s interpreter, hired locally for the sojourn, who told him that some of the crew of the _Worcester_ had brought the captured ship into the Keilon River and sold it to Cogi Commodo.

Such were the indictments, and they were so drawn because of the peculiar nature of the jury’s verdict under the Scotch practice, which did not find the fact of guilt “as charged,” but merely the truth of each item of the evidence, leaving to the court to pronounce the legal significance of those findings. It’s a jumbled-up thing and would take a treatise to explain. Some historians charge that this form of verdict was the child of political skullduggery and framed first to catch covenanters and other radicals for whom juries were showing too much sympathy and were acquitting on the general verdict; the idea being that a jury would have to find as a fact that Dougal was meeting in a bog with his confreres, while the judge could remove from the jury the temptation of turning in “Not guilty” by reserving to himself the declaration of the legal import of the finding of fact as to Dougal’s actions.

Next, after arraignment the indictment (we refer to it in the singular as both documents were of the same effect) must be approved by the judges; that is, the court must declare that if the evidential facts set out in the indictment are proved, such facts will make a proper charge and, if found by the jury, will be sufficient to convict.

Obviously, then, the big battle of this campaign must be fought across the indictment. Alec the Fiscal, with his army, will struggle to get it approved; Davy Thoirs and his gallant legion are ready to break their hearts in an effort to get it condemned. The actual trial will not be important, for if the indictment be held good, the Fiscal’s witnesses will simply recite what is already written in that indictment, and all the jury will be able to say will be that sometime in February, March, April or May, 1703, the _Worcester_ was off the coast of Malabar, that the ship’s doctor heard but did not see firing, that he was told the prize was sold to a Malabar merchant; that a drunken sot babbled in a widow’s house, and the court will have already pledged itself to declare those circumstances constitute piracy, robbery and murder.

Three occasions, March 5, 7 and 13, mark the chronology of this high forensic conflict. Its most lucent presentation requires that the time element be disregarded here, and the arguments put together as a whole. The debates were oral but we know what passed because, according to the fashion of the time, what was said in court must afterwards be put in writing by counsel and given to the clerk “to be entered upon the court books.”

Choosing our own time arrangement, then, first the defense attacked the jurisdiction of the court to hear the case at all. It was argued that the alleged crimes were committed on the coast of Malabar and by Englishmen, therefore the accused should be sent to England for trial. Alec the Fiscal countered that the crime charged being piracy, and pirates subject to arrest anywhere, the place of arrest and not the place of offense determined the court’s jurisdiction,--what you might call the geographical boundaries of its power. What Alec the Fiscal is thinking of is the indisputable principle that pirates actually in the act of crime may be taken anywhere. That is not the same--and he must have known it--as a presumably innocent ship being informed against on suspicion. English admiralty practice was somewhat of a bar to the Fiscal’s theory, so he kicked the English admiralty courts out of the window, saying, “as for what may be the custom in England, it doth not concern, nor can be any rule for us.” Looking at it that way, of course the judges had little trouble finding themselves competent to arbitrate the fight. Roars of delight from the Darien stockholders.

Second, the gentlemen of the defense now threw their weight against the indictment itself. They urged that it was too informal, too general, too indefinite; that it did not specify day or place, and only by far-drawn implication charged that the vessel pirated was the _Speedy Return_. Here’s the exact language of their protest:

That the libel (indictment) was irrelevant, as being general and indefinite, not condescending (stating) upon the name, designation, or any other sign or evidence by which the ship alleged to be seized might be particularly distinguished, nor yet the persons’ names alleged to have been murdered, or to whom the ship and goods robbed did belong; which seem to be absolutely necessary in all such criminal indictments, not only as a requisite in form, but in equity and reason; without which, persons accused should be in great hazard from general and indefinite libels, and precluded from their means of defense, which otherways are obvious, when the accusation is certain, special and pointed.

Strong, sane, splendid words! Cutting through the fog of passion and prejudice like a clear, pure beam of sun. Whatever may have brought them into the case, Davy Thoirs and his men are here the mouthpieces of the law in all its majestic wisdom.

How did the Fiscal meet this smashing onslaught? He dodged. “He had informed as definitely and closely as the thing would allow,” he whined, “for what sense or reason is there, that the prosecutor should be made to state positively on day and place, in crimes that are crimes at all times and everywhere; unless it be for the very reason that the defender, acknowledging the crime, offers to purge himself by the exception of alibi?”

Hardly credible, is it? A prosecutor should not specify the date and place of a crime lest the defendant prove he was somewhere else at the time. This is the atmosphere, surely, of Alice’s Wonderland. Why, a defendant might actually have been somewhere else than at the place of the crime, and what would a poor Fiscal do then? Sir Patrick Home at the bar rolled a pathetic eye up at Sir John Home on the bench. What will happen in Scotland if people are going to insist on such absurd propositions as that advanced by the defense? Well-a-day and two Alacks!

The judges would consider the matter.

It did not do to make any false moves before Davy Thoirs, and this is just what the Fiscal did when he admitted that John Reynolds, one of the defendants, was ashore at the time of the attack. Swift, hard, the defense hit this point. Under that practice one defendant in a criminal action could not be a witness for a co-defendant until “so purged from being _socius criminis_ (a fellow criminal)” as to be “put in case to be a witness.” If Reynolds could be cleared of the crime he could testify for his fellows. For a situation of that sort the law provided that one defendant wishing to use another as his witness was to “raise an exculpation” on behalf of that witness; that is, he would offer to prove such and such facts concerning the desired witness, upon which a trial was to be had, when, if the party were cleared or “exculpated” he could then take the stand and return the compliment to his erstwhile co-defendants. On behalf of the accused, the defense now offered to exculpate and thus qualify John Reynolds, on the ground that, as admitted by the Fiscal, he was on shore at the time of the crime charged and therefore not _particeps criminis_.

The Fiscal roared. “You can’t do this,” he yelled, and the noisier he grew the vaguer his argument became; you have to positively offer to prove Reynolds was somewhere else on some exact day or not on his ship for four months together. My indictment may be vague, was what he meant, but your alibi must be as specific as a bookkeeper’s accounts. Why, that was why he had drawn his indictment so loosely,--just to head off alibis.

The judges would consider the matter.

Why continue? It was all on that stripe.

On the morning of the thirteenth, the judges announced the conclusion of their deliberations.

“The judges and assessors,” came the stiletto tones from the seat of Justice, “having advised both the indictments pursued by Mr. Alexander Higgins, Procurator-Fiscal of the High Court of Admiralty, against captain Thomas Green” and the others, find, that “Reynolds being libelled against as _socius criminis_, a fellow criminal, and there being no specialty or particular ground of exculpation proponed, why he should be previously tried repel” the offer of the defense to exculpate him and “repel the objection against the generality of the indictments, in regard to the nature of the crimes and find the crimes of piracy, or robbery or murder, as libelled, being proven by clear and plain evidence, relevant to infer the pains of death ... and remit the whole to the knowledge of the assize (jury).”

Captain Green’s snuffbox tinkled along the floor. Sir Patrick Home of the prosecution glanced up gratefully at Sir John Home on the bench; the audience breathed a collective Ah! The judges rose and passed out; their gowns were more than dappled,--they now dripped with scarlet.

March 14, and the thing could be quickly finished. The assize, or jury, was impaneled, made up of fifteen members, whose verdict was sufficient, if found by a plurality of votes.

Mr. Fiscal first put on the stand Antonio Ferdinando, cook’s mate. He testified through an interpreter, one captain Yeaman. After asserting that he was twenty-four years of age, single, a Christian and the son of Christian parents, he claimed that he saw the _Worcester_ attack the unnamed ship “upon the coast of Malabar”, practically as set out in the indictment, and that in the engagement he was wounded, in the arm, “which wound he now shows to the view of all.” Sensation in the courtroom! He said it was a running fight and lasted for three days, and occurred between Tellicherry and Calicut. During his testifying it was apparent that he was extremely sick, and from time to time he had to stop and stretch at length on counsel’s table until he could recover his strength to proceed.

Next up was Doctor May, who said he was twenty-six years old, and who, being white, enjoyed the presumption of being a Christian. He repeated the statements which he had given for the indictment. He said he heard the firing while he was at Callequilon. If Ferdinando truthfully told that the attack was at Calicut, the doctor must have had unusual powers of hearing, for that place and Callequilon are more than one hundred miles apart. This was a little too much for even this tragic farce, so towards the end the doctor brazenly switched his testimony and said that the firing happened while he was on the ship “going up the coast of Malabar.”

Antonio Francesco, the slave, was the third to come on. He had been chained to the forecastle floor during the firing, but was told by Ferdinando that the sloop was attacking a ship. He added the highly significant information that Ferdinando was only employed forty-eight hours before the _Worcester_ left Anjango for Bengal and home! If that were so, he was not on the ship at the time Doctor May was at Callequilon, for that was long before the departure for Bengal.

But then, one could amuse one’s self indefinitely picking out this kind of discrepancy among the witnesses.

James Wilkie, Will Wood and the whole Seaton circle, of course, washed their faces and came trippingly to court to tell of the important utterances of George Haines, and to impinge their little personalities a moment upon the national retina.

Under the custom of that day counsel for the criminal defendant could not give his client much help on the facts, but Thoirs went as far as the law would allow him. He disputed the qualifications of the Antonios, claiming that they did not own ten pounds apiece, and therefore could not be heard to testify in a Scottish court. This was easy for the Fiscal. “Oh,” said he, “we calculate that each has wages coming to him from the cruise, which will total more than ten pounds.” And the court declared the witnesses qualified! If Sir David Cunningham knew of this ruling he must have been glad he quit.

Evening came on, yet the court sat through. The macers lit the candles, making little pools of yellow light in the mid-March murk of the old courtroom.

Green essayed a feeble cross-examination but could make little headway with a weapon which requires the finest skill of the most practiced hand, and which, clumsily used, will certainly cut the examiner’s own fingers. As to any affirmative defense, nothing could be advanced under an indictment of the kind laid against him, for what was there that he could specifically approach and rebut; all he could say was no. One thing he did advance and which carried no weight with the assize, but which is meaningful enough for us, and that was that there was indeed firing upon the coast of Malabar and by the _Worcester’s_ guns, but it was nothing more than the five salutes to the ship _Aureng-zeb_.

The “probation” or taking of testimony ended. Sir David Dalrymple, her majesty’s solicitor, rose to “speech the assize” on behalf of the prosecution. “Forgive me,” he blandly began, after complimenting them as persons “so discerning and faithful”, “if, after a _sederunt_ (sitting) of twelve hours ... I detain you a little longer in recapitulating what has passed, with some few observations, I hope not improper, before ye enclose.” Those “few observations”, invariably the preface of the complete bore! For two hours more this fellow rehashed the evidence, in heads and subheads until a mathematician would have endangered his reason keeping count thereof. What a point he made of Captain Thomas Bowrey’s code, found on the seizing of the ship! A regular devil’s document it was. As a matter of fact it was nothing more than a meager little forerunner of the ordinary commercial code of to-day. The whole matter, he asserted, was “as clear as sunshine.” Rather as clear as mud.

Midnight had chimed from the town clock when counsel for the defense took the floor. The candles guttered in their sockets, making jumping blotches of shadow upon the faces of the judges, heavily sunk in their seats, fighting with sleep; in the blackness beneath the bench the macer drooped forward in his chair; Dalrymple left the assize in various postures of exhaustion, some with their heads thrown far back, yawning at the ceiling, others dozing upon their knuckles crooked perspiringly on walking sticks; the panels, or prisoners, hung on doggedly to the bar rail, or squatted defiantly upon the floor, their tropic-tanned faces seamed with the drear sojourn in the Tolbooth,--snared sea birds cruelly caged. In the throng of spectators, nature had triumphantly overcome the curiosity of many and had whisked them away to the realms, somber or sparkling, of dreams; little children lay prone on their mothers’ knees, their locks wet against their fair foreheads, sweet and lovely flowers in this stagnant pool of human passion.

No record has been kept of the speech of the defense; we can easily think, though, from the splendid fight they had maintained, that they did not weaken in this last trench, this so hopeless and shattered barricade.

The trial ended.

The assize was turned loose with orders to come back the next day but one with their verdict, “under pain of three hundred marks.” After wandering all over town for a couple of days, the fifteen good men and true strolled back to court at the time appointed, and gave in the following verdict: “They (the assize), by plurality of votes, find that there is one clear witness as to the piracy, robbery and murder libelled; and that there are accumulative and concurring presumptions proven for the piracy and robbery so libelled; but find that John Reynolds, second mate of the said ship, was ashore at the time libelled.”

So Reynolds would have been “exculpated” after all! What do their honors think of that?

Who could the “one clear witness” have been?

And how shall we salute the anonymous minority who did not subscribe to the verdict?

The quietness which lasted while the verdict was formally sealed was broken by the precise tones of David Forbes, one of the lawyers for the defense. A last blow for his sailors? No. He is telling the court that he is attorney for the Scotch African-Indian company and in their name desires to enter protest against the setting over to the Crown of the ship _Worcester_ and her cargo. Thus one of the little kittens of this narrative jumps from the bag where she has so carefully been kept.

The lawyers for the defense wholly or in part--at any rate considerably--came into the case in the pay of the Scotch African-Indian company!

Strange, is it not? Here’s all Scotland, raw with the sore of Darien, shouting for the healing ointment of English blood, and here is the company, heir of all the grievances and privileges of the Darien disaster, spending money to keep that relief from the angry sufferer.

French folk say that in a mystery one must search for the woman. French folk are too naïve. One should look for the dollar, beside which the woman is but a key of putty with which to unlock the riddles of life.

Here’s the thing: if the men of the _Worcester_ were convicted of piracy, that ship, under the law, would escheat to the Crown; otherwise, the Scotch African-Indian company was entitled to the possession of it as reprisal for the seizure of their ship _Annandale_. Thus thousands of pounds’ worth of ship and cargo would be lost to the company if Green were convicted and his ship set over to the Crown.

In this none too simple world of ours a good end is sometimes strangely forwarded, not by those for whom it may be an advertised goal, but by ones who, so far as they know or care, are serving the completely selfish moment. This strife for the _Worcester_ put the ablest men of the Scotch bar at the service of Green and his crew, and gave his cause, and incidently that of justice in the abstract, the utmost help the times and practices permitted to the defense in a criminal action. These keen, adroit company lawyers wrung every drop of advantage they could, and on the law, as law, utterly routed the prosecution and luminously exposed the prejudice of the court.

On Wednesday, March 21, the _coup-de-grâce_ was given. Captain Green and all the rest, including George Haines--doubtless sober now--received their sentences. It was decreed that one group of the defendants should on Wednesday, April 4, another group on the Wednesday following that, and the remainder on the third Wednesday, or April 18, “be taken to the sands of Leith, within the flood mark, betwixt the hours of eleven o’clock in the forenoon and four o’clock in the afternoon, and there be hanged upon a gibbet until they be dead.”

And--that the ship _Worcester_, as the vessel of the pirates, should be set over to her majesty the queen.

Antonio Ferdinando, cook’s mate, lay fevered on his pallet in one of the high attics of Edinburgh. There was a roaring in the street as of a public celebration; the cries welled up from below, the people of the house exulted on the stairs, and crowding into the sick room shouted, “The pirates are to die.” Antonio shivered, moaned and expired.

III

Gusts of rain were splashed by the spring winds round and about the hilly streets of Edinburgh; the defeated sun lay like a large pale yellow blot against the moist clouds. Yet very early in that morning of April 4 throngs of folk were crowding to the prison gates and scattering about the sands of Leith. For to-day Darien was to be avenged.

In the chambers of the Scottish Estates, in Parliament Square, the privy council assembled, attended by the city magistrates, for a tumult was clearly prophesied.

“The idea!” puffed my lord chancellor, getting into his gown. “Such a clamor about the prison! Would they intimidate us with their uproar. Mr. Magistrate, go sweep them through the gutters to their kennels!”

“My lord, I hae no broom big enow.”

The clerk presented a petition, signed by many of the better consciences of the town, praying a reprieve for the condemned pirates. The council turned the matter about with grave, genteel speech.

“What a file of names! They seem to urge that Reynolds should have had opportunity of exculpation. Well, we discharged Reynolds, did we not?”

“In view of the verdict, my lords, I am inclined to think--well, that he might have been exculpated.”

“And I.”

“And I.”

“The indictment was good, my Lord Chancellor, of course--did we not so hold. But the fact of death--ordinarily, of course, it should be shown. Ordinarily, I say. The other rule is a little dangerous, is it not? The _corpus delicti_--it is a sound doctrine--usually.”

“Oh, ordinarily--certainly. Macer, close the window--the noise from the prison yard is getting intolerable.”

“My lords, my lords, they’re under our windows! Oh, my lords, such a press, and ilk has a stick or a stane ’n’s fist.

“Mr. Magistrate, you will see to the protection of her majesty’s council.”

“Aye, my Lord Chancellor--or die wi’ ye.”

“Tush! tush! Such blathering! Die? Who said die?”

“Heavens! Who’s thumping on that door?”

“My lords, the people cry that you are reprieving the pirates!”

“I pray that no torch be set to the town. Shall I step forth and promise the people, on the honor of a magistrate, there shall be no reprieve?”

“Reprieve, Mr. Magistrate! Who spoke of reprieve?”

A gust of wind from the open door blew the petition fluttering to the floor. None stooped to pick it up.

The council adjourned. The chancellor got as far as the old Tron church when some pudding-face in the crowd shouted the pirates were reprieved. A wave of people beat against the chancellor’s coach, they smashed the glass, crashed in the panels, and might have licked up the blood of the worthy nobleman himself but for the onrushing bayonets of the city guard, and, what was more effective,--a sudden, cyclonic roar from the throng at the prison gate, announcing that Green, Madder and Simpson were departing in the death wagon for the doomful sands of Leith.

Dimmed, indeed, was the honor of Scottish lawyers when bench and bar could thus go hand in hand to cast to the wild beast of public passion the unprotected and the innocent. Even the defense--able, adroit, complete--was not purely disinterested, yet amid all those mad scenes one soul, at least, kept the noblest traditions of the law alive within him and splendidly redeems his profession. For a young, obscure lawyer sat attentively in court during the whole trial, and, on the day of doom, clad himself in a suit of complete mourning and attended at the sands of Leith, and, when Justice had completed its terrific miscarriage, he, at the risk of his life, saw to the decent interment of the poor victims. That young man was to be the future illustrious Duncan Forbes!

None of the other _Worcester_ men were executed. Between March 16 and April 3, Thomas Linsteed, John Bruckley and George Haines made solemn confession of their fictitious crimes before James Graham, the judge admiral. But these confessions are dismissed by a contemporary writer as worthless and purely self-serving; they merely elaborated the tale already told and were obviously made to repair the weakness of the State’s case, and as the prosecution’s apology for an act already beginning to disturb many consciences.

The public blood thirst was slaked. One reprieve followed another, and eventually the whole crew drifted out of prison, out of the country and out of the view of history.

And a few days before the execution of the three ill-fated men, our old friends Israel Phippany and Peter Freeland landed in England, but too late to prevent the tragedy of Leith sands, and revealed the true fate of the good ships _Content_ and _Speedy Return_!

A moralist must find this tale provocative. Mark the factors of evil in the case; the commercial greed which seized the _Annandale_, the violent crime of Bowen in pirating the _Speedy Return_, the blind national anger which perverted public opinion, and which in its turn warped a timid and compliant court and council to its will, the individual habits of a ship’s steward, and the fear for their personal safety which made perjurers of the State’s witnesses. One’s speculation is challenged.

These tragic deaths were not entirely fruitless. Although not the foundation of the principle, nevertheless this celebrated cause went far to rivet unshakably into the foundations of English jurisprudence the vital doctrine of the _corpus delicti_,--proof of the actual fact of death before a charge of homicide will lie.