The Fanatic Page 30

  Meanwhile the lawyers thrashed things out among themselves. Eleis droned on majestically, half the time in Latin, attempting to prove the whole business a sham. Mitchel should not be at the bar at all, he said. There was no such crime in Scotland as assassination, and even if there were Mitchel could not be guilty of it since nobody was killed (the Bishop of Orkney having died, but some years later after having been able to go about his ordinary functions as a bishop, and not in any event on account of wounds sustained when shot at on the occasion alleged). As to the demembration of the said Bishop of Orkney, Eleis continued, the twenty-eighth Act of King James IV anno 1491 made it not a capital offence: the Bishop had sustained merely a wound to the hand, not had it cut off, and therefore could not be said to have been dismembered in any case; and the wound having been received, as stated in the libel, accidentally from a shot fired at the Archbishop of St Andrews, no malice aforethought could be attached to the act of injuring the Bishop of Orkney. Moreover, the libel seemed to be founded solely or principally on a confession, and that confession, if made at all (which the panel denied), was made extrajudicially and neither before a quorum of justices nor in presence of jurors and therefore held no legal weight and was expressly contrary to the law as contained in the ninetieth act of the seventh parliament of King James VI made for security of panels from unjust procedures against them; but, and again not admitting the confession, any such confession had, would and could only have been made in return for a promise of life; and furthermore and insofar as and notwithstanding all of the afore-mentioned …

  The crowd, those that were standing and therefore unable to doze, grew restless. There were a large number of women among it. Neither they nor most of the men could make anything of the Latin-speckled giff-gaff of the lawyers but they tolerated it from Eleis and Lockhart, because they could see that their web of words was designed to entangle the prosecution and get Mitchel off. But whenever Mackenzie rose to speak, a noise went round the court like a rumbling cundie.

  Mackenzie, in his forties and supremely confident in demeanour, appeared to take no notice of this. He was in his element as he replied to an argument of Eleis, as Lockhart duplied to him, as he returned a further argument, and so forth: the lawyers were like mechanics working expertly on an apparatus no one else understood. But the crowd had a mob’s instinct for detecting the opposition’s discomfort and exacerbating it, and it was to be found elsewhere than with the King’s Advocate.

  George Hickes had come in the long black coat of his calling. English, Episcopalian and gloating, he made too tempting a target. In the middle of one of Mackenzie’s speeches, somebody launched an apple core at Hickes, which bounced off his shoulder, leaving a faint smear of juice. There was a ripple of laughter. The court officers scanned the crowd, trying to pick out the culprit, but all they could really do was stand cross-armed and glare. As soon as their attention was diverted, another missile would fly at Hickes – more fruit, a bit of cheese. If it missed him it usually hit someone else nearby. John Lauder moved to the extremity of the bench he was on, and managed to avoid the worst of it. Next to him Sir Andrew Ramsay slumped, snoring gently and unaware of an old heel of bread which was caught on the back of his wig. When his neck rolled or twitched the bread jigged in agreement and was greeted with delight by those behind him. Then somebody fired a long green gob as if out of a mortar, and it sailed like a flying slug through the air and attached itself to the collar of Hickes’s coat. This was an encouragement to the bored younger men in the crowd. Over the next few minutes, Hickes’s shoulders and back became spotted and streaked with slicks of varying colour and consistency. When he raised his voice in protest, one of the court officers, who could not see the cause of his complaint, hissed at him to be quiet.

  John Lauder kept as much distance as he could between himself and his father-in-law, and tried to concentrate on the trial. He felt that his loyalty lay with John Eleis, and he was fascinated by the procession of arguments. He watched the aloof Mitchel, who never once looked in his direction, and thought he appeared the very model of a fanatic.

  Meanwhile the lawyers battled on across the big table. By late afternoon the judges were as weary as the onlookers. They wanted more time to consider the arguments. The trial, Lord Carringtoun announced, would be held over until the Wednesday, to commence at two in the afternoon. Mitchel was taken back to the Tolbooth, and the court rose.

  Lauder did not see his cousin John over the next two days. He was hard at work with Lockhart, trying to make the best of their material. Nobody really believed, however well argued their case for dismissal, that the court would throw the case out when it reconvened. There were too many reputations at stake, too much pressure being applied by the government. But in the Wednesday forenoon, Eleis called to see him, and they walked together out to Greyfriars and back again to court.

  ‘We hae a chance,’ Eleis said. ‘Or I should say, Mitchel has a chance, where a witch would hae nane. It’s because we’re up against Mackenzie, and Mackenzie must win by law, whereas a witch is condemned by sentiment and superstition. Still, I amna ower hopeful. The opinions we and he brocht afore the bench on Monday balanced each ither, by and large, which means they cancelled each ither oot. On that basis, they’ll say the indictment is competent.’

  ‘Then whit else stands between Mitchel and the hangman?’

  Eleis smiled. ‘I canna tell ye,’ he said. ‘It’s anither o thae secrets aboot Mitchel, like the yin you had. But I can say this. We hae a weapon that may be enough tae cut him free.’

  ‘Whit kind o weapon? A deposition? A witness?’

  ‘It’s a proof,’ Eleis said. ‘That’s aw I can say. It was pit intae oor hauns last nicht.’

  ‘Then it’s a new production. If Mackenzie hasna been advised o its existence it winna be admitted.’

  ‘Aye it will. It comes frae a guid source.’

  ‘Where?’

  Eleis shook his head. ‘Watch the bench closely this eftirnune,’ he said.

  Sir Archibald Primrose, Lord Justice General, opened the proceedings. The charges in the dittay were to stand, he said. The confession made by the panel had been made before the Committee of the Council, and was therefore judicial, and could not be retracted. The confession had not been elicited by torture, since it had been made prior to same, and on a different occasion. The trial would proceed.

  ‘However,’ Primrose added, looking at Sir George Mackenzie, ‘we also find the alleged promise of life and limb, made in return for the panel’s confession, to be relevant.’

  Mackenzie was on his feet. ‘My lord, the existence of such a promise is a mere speculation. The panel does not even acknowledge the confession.’

  ‘But my lord,’ said Primrose, ‘there is a confession. Your case depends on it. All we are saying is, ye cannot have the confession and yet not have anything that might appertain to it. That is the basis on which we continue.’

  ‘But my lord …’

  ‘That is the basis on which we continue. We spent Monday on this matter and we will not spend today on it. Our friends on the assize will decide what is speculation and what is fact from the evidence presented to them. They will now be sworn in.’

  John Lauder, listening intently, detected more than the usual smugness in Primrose’s voice. The judge was hinting at something, he was sure of it. He saw Eleis conferring with Lockhart. Lauder was sitting alone today: Hickes and others, in spite of the treatment they had received on the Monday, were back as well, but Sir Andrew had declared the proceedings too tedious, and gone to Fife. Lauder had not tried to dissuade him.

  Mackenzie’s confidence seemed to return as he watched the jurors being sworn. An apothecary, a couple of wine merchants, a tailor, a merchant or two – well, these might swing either way. But the other nine were all soldiers or gentlemen, government men. A clear majority before Mackenzie even started, and a majority was all he needed. The defence objected to several of them, but was overruled.

  Mackenzie nodd
ed curtly to Lockhart and Eleis. They nodded back. He cast a cold eye on James Mitchel, who was staring into space. Then he let his gaze pass over the public, more numerous even than they had been two days before, for today, everybody knew, the fanatic’s fate would be decided. Already there was a tension in the atmosphere. The King’s Advocate’s survey of his audience seemed to be saying, ‘I will overcome you all.’

  The first witness was a bulky, dour-looking man, an advocate himself, William Paterson. John Lauder knew him – all the legal brethren knew him. He seemed, for a man habitually in courts, to be most uncomfortable. His eyes kept shifting to the defence lawyers, as if he wished to apologise for being there at all.

  Mackenzie asked him if he recalled the day when the archbishop was shot at, in July 1668. He did. And did he recall being out in the town that day, in the afternoon? He did. Whereabouts? He was walking up Blackfriars Wynd. When was this, roughly? About four o’clock. And did he meet anyone? He did. Whom did he meet? He met an armed man coming down the street. How was this man armed? He had a pistol in his hand. Would this be before or after the firing of a pistol at the Archbishop? After. How did he know that? There was a commotion in the street, which he learnt was caused by the attack on the Archbishop. And did he see the man with the pistol in the court today? He did not.

  Mackenzie gave him a slow, deadly look.

  ‘Ye do not?’

  ‘No, my lord.’

  ‘Ye saw the man clearly?’

  ‘Aye.’

  ‘Yet ye do not see him here.’

  ‘No.’

  Mackenzie indicated Mitchel. ‘Do ye recognise this man at all?’

  ‘No.’

  ‘If I put it to ye that this is the man ye saw, would ye think it possible?’

  ‘I canna say. It’s ten year syne.’

  ‘But is it possible?’

  ‘I dinna ken this man. I canna say if he was the person that shot at the Archbishop. That is the truth as I shall answer God.’

  Mackenzie sat down, annoyed but not exasperated. He had better witnesses, and would not waste time because this one had balked at the fence. Lockhart and Eleis declined to question, and Paterson stepped down with evident relief.

  The next witness was Patrick Vanse, keeper of the Tolbooth. He was a handsome, dark-haired man in his forties, who had taken some trouble to look his best for his day in court. He stood very upright as he was sworn in, and answered the questions put to him with an abruptness that was at first impressive, but then began to seem just a little too well rehearsed. Mackenzie took him back four years, to 1674, when Mitchel was held in the Tolbooth. Had the panel, during that time when he was in his custody, ever said anything to Vanse about the assassination attempt?

  ‘Aye, my lord, he did.’

  ‘When was that?’

  ‘Twa days afore he was examined by the Cooncil, my lord.’

  ‘And what did he say?’

  ‘That he’d shot a pistol at the Archbishop o St Andrews, my lord.’

  ‘He told ye that? This man that ye see here?’

  ‘Aye.’

  ‘What else did he say?’

  ‘That he escaped doon Blackfriars Wynd, my lord, and gaed up the Cougate and intae Maister Fergusson’s hoose, anither rebel, my lord, where he pit on a periwig, and syne he cam back oot on the street and huntit himsel.’

  There were a few laughs. Lauder noticed that Mitchel was paying closer attention than he had at any time so far during the trial.

  ‘What do ye mean, he huntit himsel?’ Mackenzie asked.

  ‘He pretended tae search for the man that had shot the pistol,’ Vanse said. ‘But it was himsel that had done it.’

  Mackenzie gave way to the defence. Sir George Lockhart approached Vanse and said, in a friendly manner, ‘Your evidence is most precise, sir. Ye have a excellent memory. Ye must have had dozens, hundreds of prisoners pass through your portals in the last four years. Each with their own story to tell.’

  ‘Nane like his, sir.’

  ‘That’ll be why ye mind it so well?’

  ‘Aye, sir.’

  ‘And did the panel say nothing else about this violent act that he boasted of to ye?’

  ‘No, sir.’

  ‘How can ye be sure that this conversation occurred two days before Maister Mitchel was examined by the Council?’

  Vanse shrugged. ‘Weill, twa days, or a day afore. Nae mair than that.’

  ‘Oh. So ye’re not absolutely certain of the day?’

  ‘No, sir.’

  ‘Might it have been a day, or two days after he was examined by the Council?’

  Vanse frowned. ‘I dinna mind.’

  Lockhart looked puzzled. ‘A thing that is bothering me, ye see, is that, Maister Mitchel being of a particular persuasion, a particular party, what some folk call a fanatical persuasion, ye’d expect him to justify the deed in some way. Refer to a text in the Bible, or the duty of a covenanted Christian people or some such. But ye dinna mind him justifying his actions at all?’

  ‘No, sir.’

  ‘He told ye exactly what he did on that day when the Archbishop was fired upon, his exact movements, every particular of this criminal act, and yet he did not choose to explain why he had committed it?’

  ‘No, sir.’

  ‘It seems a strange omission from such a man,’ Lockhart said. ‘Such a man would not regard the act as a crime, so ye’d think he’d be at pains to explain himself. But, as I said, your memory is excellent. It must have been an oversight on his part.’

  Lockhart seemed finished, but turned as he was walking back to his seat, and added, ‘Except of course that ye canna mind whether this confession made to ye by Maister Mitchel was made before or after he was examined by the Council. I’m done, my lords.’

  Lockhart sat down, having raised at least a doubt as to the accuracy of Vanse’s story. But John Lauder observed that Mackenzie did not seem unduly concerned. When the next witness, Vanse’s son John, was called, it became clear why.

  ‘John, ye are reckoned a good man, a kindly man,’ Mackenzie said. ‘Ye take a care over the unhappy persons that ye are responsible for. Did ye have friendly dealings with the panel, Maister Mitchel, when he was kept in the Tolbooth four year syne?’

  ‘Aye, my lord. We’d hae a conversation noo and again.’

  ‘And did ye discuss with him this matter of the shooting at the Archbishop?’

  ‘Aye, my lord.’

  ‘And did he acknowledge the deed to ye?’

  ‘Aye, my lord.’

  ‘And did he ever justify this deed?’

  John Vanse looked over to the panel, but Mitchel studiously avoided his eye. Lauder watched them avidly. He thought of what Mitchel had told him on the Bass. Had Vanse ever connected the prisoner of 1674 with the man who had come to visit Major Weir four years before that, claiming to be his son? If he had, or if he did now, would that make him more or less likely to hurt Mitchel? Or would it make no difference at all?

  ‘Did he ever justify this deed to ye?’ Mackenzie repeated.

  Vanse was staring at Mitchel, as if a clock or some such mechanism were clicking and whirring in his brain. Then he spoke.

  ‘I mind yince, we spak aboot evil, whit evil was, whether it was frae man or frae Satan. I’d kent aw kinds o men that had come through the Tolbooth, and it wasna clear tae me wi some o them where their badness cam frae. I mind I asked him how he could kill a man in cauld bluid. I mean, a man that hadna done him ill. I asked him how ony man could be pairty tae sae wickit an act.’

  ‘And what was his reply?’

  Vanse hesitated, looked again at Mitchel.

  ‘He said it wasna in cauld bluid. He said the bluid o the saints was reekin at the cross o Edinburgh.’

  The crowd stirred. And that, thought John Lauder, is Mackenzie’s retort to Lockhart. There was Mitchel’s motive, and the language Vanse said he had used was like red meat to a hungry jury. The officers and gentlemen on that jury seized it: let a man like Mitchel a
way, they would be thinking, and they would be next on his list of targets. But elsewhere in the court, except where the gentry sat, there was grumbling and hissing. The popular element applauded Mitchel’s rhetoric. They saw the effect it had on their social superiors. They saw a glimmer of fear. But Lauder knew that, in the jurors’ eyes, it had hurt Mitchel badly.

  Mackenzie pressed on. He worked on the horror of the deed, playing it up for the benefit of the jurors. He called three surgeons one after another, to describe the damage inflicted on the Bishop of Orkney. Dr Irvin testified that he saw a ball fall from the bishop’s sleeve, so that he knew the wound had been caused by a shot: the bones were fractured, and the arm was permanently weakened, but they managed to cure him so that at least he could raise his hand towards his head. The Bishop had told him that he had been hit as he laid his hand on the door of the coach. Dr Jossie explained that the wound had been between the wrist and the elbow, and that several small bones had been smashed by the shot. Dr Borthwick agreed with Dr Jossie in every respect.

  The Crown’s case rested. It was now Lockhart’s turn. He called as a witness John, the Earl of Rothes, Lord High Chancellor of Scotland.

  ‘My lords,’ Lockhart said, addressing the bench, ‘I would not want ye to think there is any insolence intended in the calling of this or other witnesses. But we must discover the truth of the matter of this confession. Was it made freely and without an assurance of life, or was it no? Only these noble and honourable lords know the answer, and it is for this reason that we have called them.’

  Rothes, enormous and red of face, glared at Lockhart as if he would like to eat him.

  Primrose nodded affably and his robed arm made a sweeping gesture around the court. ‘This is the nub of the matter,’ he said. ‘I cannot think for what other reason all the world is in attendance. It is fair to say, I believe, that many think there has been a promise of life given to the panel. Many have heard that there was even an Act of Council made about it. So, we must establish whether or not this is the case. Proceed, sir.’