Tom Burke Of "Ours", Volume II

He then proceeded to narrate with circumstantial accuracy the night in the George’s Street barracks, when Hilliard, Crofts, and some others came with Bubbleton to his quarters to decide a wager between two of the parties. Calling the attention of the jury to this part of the case, he detailed the scene which occurred; and, if I could trust my memory, not a phrase, not a word escaped him which had been said.

“It was then, gentlemen,” said he, “at that instant, that the prisoner’s habitual caution failed him, and in an unguarded moment developed the full story of his guilt. Captain Bubbleton lost his wager, of which my client was the winner. The habits of the service are peremptory in these matters; it was necessary that payment should be made at once. Bubbleton had not the means of discharging his debt, and while he looked around among his comrades for assistance, the prisoner steps forward and supplies the sum. Mark what followed.

“A sudden call of service now summoned the officers beneath; all save Crofts, who, not being on duty, had no necessity for accompanying them. The bank-note so opportunely furnished by the prisoner lay on the table; and this Crofts proceeded leisurely to open and examine before he left the room. Slowly unfolding the paper, he spread it out before him; and what, think you, gentlemen, did the paper display? A Bank of England bill for twenty pounds, you’ll say, of course. Far from it, indeed! The paper was a French assignat, bearing the words, ‘Payez au porteur la somme de deux mille livres.’ Yes; the sum so carelessly thrown on the table by this youth was an order for eighty pounds, issued by the French Government.

“Remember the period, gentlemen, when this occurred. We had just passed the threshold of a most fearful and sanguinary rebellion, – the tranquillity of the land scarce restored after a convulsion that shook the very constitution and the throne to their centres. The interference of France in the affairs of the country had not been a mere threat; her ships had sailed, her armies had landed, and though the bravery and the loyalty of our troops had made the expedition result in utter defeat and overthrow, the emissaries of the land of anarchy yet lingered on our shores, and disseminated that treason in secret which openly they dared not proclaim. If they were sparing of their blood, they were lavish of their gold; what they failed in courage they supplied in assignats. Large promises of gain, rich offers of booty, were rife throughout the land; and wherever disaffection lurked or rebellion lingered, the enemy of England found congenial allies. Nothing too base, nothing too low, for this confederacy of crime; neither was anything too lowly in condition or too humble in efficiency. Treason cannot choose its agents; it must take the tools which chance and circumstances offer: they may be the refuse of mankind, but if inefficient for good, they are not the less active for evil. Such a one was the youth who now stands a prisoner before you, and here was the price of his disloyalty.”

At these words he held up triumphantly the French assignat, and waved it before the eyes of the court. However little the circumstances weighed within me, such was the impression manifestly produced upon the jury by this piece of corroborative evidence, that a thrill of anxiety for the result ran suddenly through me.

Until that moment I believed Darby had repossessed himself of the assignat when Crofts lay insensible on the ground; at least I remembered well that he stooped over him and appeared to take something from him. While I was puzzling my mind on this point, I did not remark that the lawyer was proceeding to impress on the jury the full force of conviction such a circumstance implied.

The offer I had made to Crofts to barter the assignat for an English note; my urgent entreaty to have it restored to me; the arguments I had employed to persuade him that no suspicion could attach to my possession of it, – were all narrated with so little of exaggeration that I was actually unable to say what assertion I could object to, while I was conscious that the inferences sought to be drawn from them were false and unjust.

Having displayed with consummate skill the critical position this paper had involved me in, he took the opportunity of contrasting the anxiety I evinced for my escape from my difficulty, with the temperate conduct of my antagonist, whose loyalty left him no other course than to retain possession of the note, and inquire into the circumstances by which it reached my hands.

Irritated by the steady determination of Crofts, it was said that I endeavored by opprobrious epithets and insulting language to provoke a quarrel, which a sense of my inferiority as an antagonist rendered a thing impossible to be thought of. Baffled in every way, I was said to have rushed from the room, double-locking it on the outside, and hurried down the stairs and out of the barrack; not to escape, however, but with a purpose very different, – to return in a few moments accompanied by three fellows, whom I passed with the guard as men wishing to recruit. To ascend the stairs, unlock the door, and fall on the imprisoned officer, was the work of an instant. His defence, although courageous and resolute, was but brief. His sword being broken, he was felled by a blow of a bludgeon, and thus believed dead. The ruffians ransacked his pockets, and departed.

The same countersign which admitted, passed them out as they went; and when morning broke the wounded man was found weltering in his blood, but with life still remaining, and strength enough to recount what had occurred. By a mere accident, it was stated, the French bank-note had not been consigned to his pocket, but fell during the struggle, and was discovered the next day on the floor.

These were the leading features of an accusation, which, however improbable while thus briefly and boldly narrated, hung together with a wonderful coherence in the speech of the lawyer, supported as they were by the number of small circumstances corroboratory of certain immaterial portions of the story. Thus, the political opinions I professed; the doubtful – nay, equivocal – position I occupied; the intercourse with France or Frenchmen, as proved by the billet de banque; my sudden disappearance after the event, and my escape thither, where I continued to live until, as it was alleged, I believed that years had eradicated all trace of, if not my crime, myself, – such were the statements displayed with all the specious inferences of habitual plausibility, and to confirm which by evidence Sir Montague Crofts was called to give his testimony.

There was a murmur of expectancy through the court as this well-known individual’s name was pronounced; and in a few moments the throng around the inner bar opened, and a tall figure appeared upon the witness table. The same instant that I caught sight of his features he had turned his glance on me, and we stood for some seconds confronting each other. Mutual defiance seemed the gage between us; and I saw, with a thrill of savage pleasure, that after a minute or so his cheek flushed, and he averted his face and appeared ill at ease and uncomfortable.

To the first questions of the lawyer he answered with evident constraint, and in a low, subdued voice; but soon recovering his self-possession, gave his testimony freely and boldly, corroborating by his words all the statements of his advocate. By both the court and the jury he was heard with attention and deference; and when he took a passing occasion to allude to his loyalty and attachment to the constitution, the senior judge interrupted him by saying, —

“On that point, Sir Montague, no second opinion can exist. Your character for unimpeachable honor is well known to the court.”

The examination was brief, lasting scarcely half an hour; and when the young lawyer came forward to put some questions as cross-examination, his want of instruction and ignorance were at once seen, and the witness was dismissed almost immediately.

Sir Montague’s advocate declined calling any other witness. The regiment to which his client then belonged was on foreign service; but he felt satisfied that the case required nothing in addition to the evidence the jury had heard.

A few moments of deliberation ensued among the members of the bench; and then the senior judge called on my lawyer to proceed with the defence.

The young barrister rose with diffidence, and expressed in few words his inability to rebut the statements that had been made by any evidence in his power to produce. “The prisoner, my lord,” said he, “has confided nothing to me of his case. I am ignorant of everything, save what has taken place in open court.”

“It is true, my lord,” said I, interrupting. “The facts of this unhappy circumstance are known but to three individuals. You have already heard the version which one of them has given; you shall now hear mine. The third, whose testimony might incline the balance in my favor, is, I am told, no longer in this country; and I have only to discharge the debt I feel due to myself and to my own honor, by narrating the real occurrence, and leave the issue in your hands, to deal with as your consciences may dictate.”

With the steadiness of purpose truth inspires, and in few words, I narrated the whole of my adventure with Crofts, down to the moment of Darby’s sudden appearance. I told of what passed between us; and how the altercation, that began in angry words, terminated in a personal struggle, where, as the weaker, I was overcome, and lay beneath the weapon of my antagonist, by which already I had received a severe and dangerous wound.

“I should hesitate here, my lords,” said I, “before I spoke of one who then came to my aid, if I did not know that he is already removed by a heavy sentence, both from the penalty his gallant conduct might call down on him, and the enmity which the prosecutor would as certainly pursue him with. But he is beyond the reach of either, and I may speak of him freely.”

I then told of Darby’s appearance that night in the barrack, disguised as a ballad-singer; how in this capacity he passed the sentry, and was present in the room when the officers entered to decide the wager; that he had quitted it soon after their arrival, and only returned on hearing the noise of the scuffle between Crofts and myself. The struggle itself I remembered but imperfectly, but so far as my memory bore me out, recapitulated to the court.

“I will relate, my lords,” said I, “the few events which followed, – not that they can in any wise corroborate the plain statement I have made, nor indeed that they bear, save remotely, on the events mentioned; but I will do so in the hope, – a faint hope it is, – that in this court there might be found some one person who could add his testimony to mine, and say, ‘This is true; to that I can myself bear witness.’”

With this brief preface, I told how Darby had brought me to a house in an obscure street, in which a man, apparently dying, was stretched upon a miserable bed; that while my wound was being dressed, a car came to the door with the intention of conveying the sick man away somewhere. This, however, was deemed impossible, so near did his last hour appear; and in his place I was taken off, and placed on board the vessel bound for France.

“Of my career in that country it is needless that I should speak; it can neither throw light upon the events which preceded it, nor have any interest for the court My commission as a captain of the Imperial Hussars may, however, testify the position that I occupied; while the certificate of the minister of war on the back will show that I quitted the service voluntarily, and with honor.”

“The court would advise you, sir,” said the judge, “not to advert to circumstances which, while they contribute nothing to your exculpation, may have a very serious effect on the minds of the jury against you. Have you any witnesses to call?”

“None, my lord.”

A pause of some minutes ensued, when the only sounds in the court were the whispering tones of Crofts’s voice, as he said something into his counsel’s ear. The lawyer rose.

“My task, my lords,” said he, “is a short one. Indeed, in all probability, I need not trouble either your lordships or the jury with an additional word on a case where the evidence so conclusively establishes the guilt of the accused, and where attempt to contradict it has been so abortive. Never, perhaps, was a story narrated within the walls of a court so full of improbable – might I not almost say impossible – events, as that of the prisoner.”

He then recapitulated, with rapid but accurate detail, the principal circumstances of my story, bestowing some brief comment on each as he went. He sneered at the account of the struggle, and turned the whole description of the contest with Crofts into ridicule, – calling on the jury to bestow a glance on the manly strength and vigorous proportions of his client, and then remember the age of his antagonist, – a boy of fourteen.

“I forgot, gentlemen (I ask your pardon), he confesses to one ally, – this famous piper. I really did hope that was a name we had done with forever. I indulged the dream, that among the memories of an awful period this was never to recur; but unhappily the expectation was delusive. The fellow is brought once more before us; and perhaps, for the first time in his long life of iniquity, charged with a crime he did not commit.” In a few sentences he explained that a large reward was at that very moment offered for the apprehension of Darby, who never would have ventured under any disguise to approach the capital, much less trust himself within the walls of a barrack.

“The tissue of wild and inconsistent events which the prisoner has detailed as following the assault, deserves no attention at my hands. Where was this house? What was the street? Who was this doctor of which he speaks? And the sick man, how was he called?”

“I remember his name well; it is the only one I remember among all I heard,” said I, from the dock.

“Let us hear it, then,” said the lawyer, half contemptuously.

“Daniel Fortescue was the name he was called by.”

Scarcely was the name uttered by me, when Crofts leaned back in his seat and became pale as death; while, stretching out his hand, he took hold of the lawyer’s gown and drew him towards him. For a second or two he continued to speak with rapid utterance in the advocate’s ear; and then covering his face with his handkerchief, leaned his head on the rail before him.

“It is necessary, my lords,” said the lawyer, “that I should explain the reason of my client’s emotion, and at the same time unveil the baseness which has dictated this last effort of the prisoner, if not to injure the reputation, to wound the feelings, of my client. The individual whose name has been mentioned was the half brother of my client; and whose unhappy connection with the disastrous events of the year ‘98 involved him in a series of calamities which ended in his death, which took place in the year 1800, but some months earlier than the circumstance which we now are investigating. The introduction of this unhappy man’s name was, then, a malignant effort of the prisoner to insult the feelings of my client, on which your lordships and the jury will place its true value.”

A murmur of disapprobation ran through the crowded court as these words were spoken; but whether directed against me or against the comment of the lawyer I could not determine; nor, such was the confusion I then felt, could I follow the remainder of the advocate’s address with anything like clearness. At last he concluded; and the chief justice, after a whispered conversation with his brethren of the bench, thus began: —

“Gentlemen of the jury, the case which you have this day to try, to my mind presents but one feature of doubt and difficulty. The great fact for your consideration is, to determine to which of two opposite and conflicting testimonies you will accord your credence. On the one side you have the story of the prosecutor, a man of position and character, high in the confidence of honorable men, and invested with all the attributes of rank and station; on the other, you have a narrative strongly coherent in some parts, equally difficult to account for in others, given by the prisoner, whose life, even by his own showing, has none of those recommendations to your good opinions which are based on loyalty and attachment to the constitution of these realms. Both testimonies are unsupported by any collateral evidence. The prosecutor’s regiment is in India, and the only witnesses he could adduce are many thousand miles off. The prisoner appeals also to the absent, but with less of reason; for if we could call this man, M’Keown, before us, – if, I say, we had this same Darby M’Keown in court – ”

A tremendous uproar in the hall without drowned the remainder of the sentence; and although the crier loudly proclaimed silence, and the bench twice interposed its authority to enforce it, the tumult continued, and eventually extended within the court itself, where all semblance of respect seemed suddenly annihilated.

“If this continues one moment longer,” exclaimed the chief justice, “I will commit to Newgate the very first disorderly person I can discover.”

The threat, however, did but partially calm the disturbance, which, in a confused murmur, prevailed from the benches of the counsel to the very galleries of the court.

“What means this?” said the judge, in a voice of anger. “Who is it that dares to interfere with the administration of justice here?”

“A witness, – a witness, my lord,” called out several voices from the passage of the court; while a crowd pushed violently forward, and came struggling onwards till the leading figures were pressed over the inner bar.

Again the judge repeated his question, while he made a signal for the officer of the court to approach him.

“‘Tis me, my lord,” shouted a deep-toned voice from the middle of the crowd. “Your lordship was asking for Darby M’Keown, and it isn’t himself’s ashamed of the name!”

A perfect yell of approval broke from the ragged mob, which now filled every avenue and passage of the court, and even jammed up the stairs and the entrance halls. And now, raised upon the shoulders of the crowd, Darby appeared, borne aloft in triumph; his broad and daring face, bronzed with sun and weather, glowed with a look of reckless effrontery, which no awe of the court nor any fear for himself was able to repress.

Of my own sensations while this scene was enacting I need not speak; and as I gazed at the weather-beaten features of the hardy piper, it demanded every effort of my reason to believe in the testimony of my eyesight. Had he come back from death itself the surprise would scarcely have been greater. Meanwhile the tumult was allayed; and the lawyers on either side – for, now that a glimmer of hope appeared, my advocate had entered with spirit on his duties – were discussing the admissibility of evidence at the present stage of the proceedings. This point being speedily established in my favor, another and a graver question arose: how far the testimony of a convicted felon – for such the lawyer at once called Darby – could be received as evidence.

Cases were quoted and authorities shown to prove that such cannot be heard as witnesses, – that they are among those whom the law pronounces infamous and unworthy of credit; and while the lawyer continued to pour forth on this topic a perfect ocean of arguments, he was interrupted by the court, who affirmed the opinion, and concurred in his view of the case.

“It only remains, then, my lord,” said my counsel, “for the Crown to establish the identity of the individual – ”

“Nothing easier,” interposed the other.

“I beg pardon; I was about to add, – and produce the record of his conviction.”

This last seemed a felling blow; for although the old lawyer never evinced here or at any other time the slightest appearance of discomfiture at any opposition, I could see by the puckering of the deep lines around his mouth that he felt vexed and annoyed by this new suggestion.

An eager and animated discussion ensued, in which my advocate was assisted by the advice of some senior counsel; and again the point was ruled in my favor, and Darby M’Keown was desired to mount the table.

It required all the efforts of the various officers of the court to repress another outbreak of mob enthusiasm at the decision; for already the trial had assumed a feature perfectly distinct from any common infraction of the law. Its political bearing had long since imparted a character of party warfare to the whole proceeding; and while Sir Montague Crofts found his well-wishers among the better dressed and more respectable persons present, a much more numerous body of supporters claimed me as their own, and in defiance of all the usages and solemnity of the place, did not scruple to bestow on me looks and even words of encouragement at every stage of the trial. Darby’s appearance was the climax of this popular enthusiasm. There were few who had not seen, or at least heard of, the celebrated piper in times past. His daring infraction of the law; his reputed skill in evading detection; his acquaintance with every clew and circumstance of the late rebellion; the confidence he enjoyed among all the leaders – had made him a hero in a land where such qualities are certain of obtaining their due estimation. And now, the reckless effrontery of his presence as a witness in a court of justice while the sentence of transportation still hung over him, was a claim to admiration none refused to acknowledge.

His air and demeanor as he took his seat on the table seemed an acknowledgment of the homage rendered him: for though, as he placed his worn and ragged hat beside his feet, and stroked down his short black hair on his forehead, a careless observer might have suspected him of feeling awed and abashed by the presence in which he sat, one more conversant with his countrymen would have detected in the quiet leer of his roguish black eye, and a certain protrusion of his thick under lip, that Darby was as perfectly at his ease there as the eminent judge was who now fixed his eyes upon him. A short, but not disrespectful nod was the only notice he bestowed on me; and then concealing his joined hands within his sleeves, and drawing his legs back beneath the chair, he assumed that attitude of mock humility your least bashful Irishman is so commonly fond of.

The veteran barrister was meanwhile surveying the witness with the peculiar scrutiny of his caste: he looked at him through his spectacles, and then he stared at him above them; he measured him from head to foot, his eye dwelling on every little circumstance of his dress or demeanor, as though to catch some clew to his habits of thinking or acting. Never did a matador survey the brawny animal with which he was about to contend in skill or strength with more critical acumen than did the lawyer regard Darby the Blast. Nor was the object of this examination unaware of it; very far from this, indeed. He seemed pleased by the degree of attention bestowed on him, and felt all the flattery such notice conveyed; but while doing so, you could only detect his satisfaction in an occasional sidelong look of drollery, which, brief and fleeting as it was, had still a numerous body of admirers through the court, whose muttered expressions of “Divil fear ye, Darby! but ye ‘re up to them any day;” or “Faix! ‘t is himself cares little about them!” showed they had no lack of confidence in the piper.

“Your name is M’Keown, sir?” said the lawyer, with that abruptness which so often succeeds in oversetting the balance of a witness’s self-possession. “Yes, sir; Darby M’Keown.” “Did you ever go by any other than this?” “They do call me ‘Darby the Blast’ betimes, av that ‘a a name.”

“Is that the only other name you have been called by?” “I misremember rightly, it’s so long since I was among friends and acquaintances; but if yer honor would remind me a little, maybe I could tell.” “Well, were you ever called ‘Larry the Flail?’” “Faix, I was,” replied he, laughing; “divil a doubt of it.”

“How did you come by the name of ‘Larry the Flail’?”

“They gave me the name up at Mulhuldad there, for bating one M’Clancy with a flail.”

“A very good reason. So you got the name because you beat a certain M’Clancy with a flail?”

“I didn’t say that; I only said they gave me the name because they said I bate him.”