The above quotation is typical of the slightly muddled and inconsequent style of Mr Clark’s speech throughout. It is perhaps the speech of a very weary over-anxious man. Accompanied by voice and gesture and, one may assume, by the force of his own personal integrity and sincerity, it may have been more inspiring to listen to than it is to read; but it does read heavily and rather confusedly. It ended with a reference to the extraordinary circumstances in which the prisoner’s declarations were obtained and a plea that the prisoner should not be ‘convicted in respect of them’, with a further reminder that the jury must be sure that every link in the chain of evidence be strong and certain; and finally with a reference to the two women seen by P.C. Campbell on the steps of No. 17 Sandyford Place on the Saturday night—the night after the murder. If that were true—and there was no reason to doubt it—then there were women about the house on the day after the murder was said to have been committed, and that might explain the footprints.…
And finally—finally, if there were those who felt that the blood of the poor dead woman cried aloud for vengeance, he hoped that the jury would leave that to Him who had claimed it as His own and, humbly acknowledging human law and human justice to be prone to error, would remember that it is better that a thousand guilty persons should escape than that one innocent person should perish.
Amidst loud applause from the audience, Mr Rutherfurd Clark sat down.
Lord Deas adjourned the Court till the following morning, the jury having decided that it was more than they cared to undertake to listen to yet a third address. They asked leave to take the plans with them to study overnight—they must have been gluttons for work; but the judge appears to have had a rooted objection to blueprints and turned down the suggestion. They could see the plans when they came to consider their verdict. If they took them now they would be unable to refrain from making up their minds in advance. How the plans could possibly have had any such effect one cannot conceive—but anyway he needn’t have worried. The minds of the jury, like his own, had been pretty well made up before ever they came into Court.
CHAPTER SEVENTEEN
Saturday, September 20—the fourth and last day.
Before the Court assembled Jessie asked to see her advisers. She had all along wanted her statement used; now she insisted that, whatever the outcome, it should be given out in open court. She would have the choice—if things went against her—of making it herself or of having it read. Mr Rutherfurd Clark agreed to read it for her. He may still have had hopes that it would be unnecessary—he had not yet heard the second speech for the prosecution, as delivered from the judicial bench by Lord Death.
At half-past ten the Judge opened his charge to the jury.
The public reception of Lord Death’s charge was largely unfavourable. It was ‘stern and iron-cased’; according to Sir Archibald Alison, ‘able but one-sided and unfeeling’; according to the Law Magazine and Review, vastly less judicial than Mr Gifford’s address for the prosecution. The conduct of Lord Deas, said this highly responsible legal journal, had been almost universally censured. His charge ‘lasted four hours; and from beginning to end of it there is not an observation favourable to the prisoner; not one fair consideration of doubt in her favour.… On the contrary, facts that in our humble opinion tell strongly in her favour are either quietly ignored or disposed of by reckless assertion or the most transparent sophistry.…’ No advocate would dare be so reckless in argument, or rather in assertion.…
When he came into court on the Friday he carried the black cap openly in his hand and laid it on the desk before him, and this was, not surprisingly, taken to mean that he was prepared for the worst and quite ready to give the jury a broad hint to that effect. In England the black cap, a square of material about the size of a woman’s handkerchief, is carried as part of the judge’s ceremonial robes whatever type of case he may be trying. Only in murder cases has it any significance; it is unfolded and laid upon his wig while he pronounces the death sentence. In Scotland it is triangular, survivor of the tricorne hat of earlier days, and is not carried but kept in a box on the judge’s bench, not visible to the court until sentence of death is to be pronounced, when the judge himself holds it a little above his head while he speaks the words. ‘I never before saw the symbol of death paraded in sight of a pannel during the judge’s charge,’ writes a legal observer of the trial; and ‘Philo Justitia’ was ‘horrified to see Lord Deas so ostentatiously bringing in the black cap on the Friday, as if delighting in expectation of putting it on. It was on the desk at his side on Saturday.’
Having established the fact of murder, the judge turned to the ‘fact’ of theft. ‘These dresses were in the possession of the deceased up to the Friday—’
Mr Clark begged his lordship’s pardon. There was no proof, no witness spoke to the fact of the dresses having been in the house up to Friday.
‘We shall see what may be the evidence on this point,’ said Lord Deas calmly; but they did not see any evidence at all. All they got was a reminder that the prisoner had declared that the dresses had been brought to her on the Friday night. His lordship was keen enough on the unreliability of her declarations except in such places as they might be turned to her destruction.
And now into the teeming pond of facts that might militate against her his lordship tossed a contribution entirely his own. All those things in pawn, including almost the whole of her husband’s wardrobe—and the husband expected home at any moment!
James M’Lachlan’s possessions were in pawn because he could not give his ailing wife enough money to keep them out of pawn; we have the assurance of Mrs Adams, who knew her well, that she lived as economically as she possibly could and spent nothing whatsoever on personal, or any other, extravagance (unless it might be a little in matters of dress, Mrs Adams had said; but even that not for a long time now). And they had been in pawn for some considerable time, for she had since been reduced to pledging all but one dress and even her cloak, without which she couldn’t go out. But James M’Lachlan was in and out of his home every week, never absent for more than three or four days. He had left only the day before the murder was committed. Did Lord Deas mean to suggest that in the intervening twenty-four hours his wife had rushed out, pawned all he possessed, blown the proceeds on some nameless orgy of extravagance and now, lest he discover it, hastily redeemed his possessions at this horrifying price? Except that it is relatively unimportant, this piece of gratuitous innuendo is almost the most monstrous injustice in the whole unjust and wickedly one-sided affair.
(However, his lordship was not alone in his theory—‘Justice’ subsequently dashed into print to suggest that Mrs M’Lachlan had had to get money to conceal from her husband her mismanagement of their financial affairs and had gone to borrow from Jess M’Pherson for this purpose. Jess refusing, she killed her. If James M’Lachlan was not already aware of the state of things at home he must have been a very unobservant young man.)
There follows a long discourse—almost a third of the total—setting out the story as it had been brought out in the evidence, which is certainly remarkable for its clarity. Not for its charity, however; no smallest point against the prisoner goes unrecorded or, indeed, unemphasised. Nevertheless, a fair enough summary, which, strong and clear and coldly reasoned, must have been deadly in its impact, compared with the rather muffled confusion of last night’s passionate plea for the defence.
But as soon as he moves away from the mere recital of facts, the judge’s violent prejudice in favour of old Mr Fleming at the expense of the wretched woman at the bar becomes so apparent as to be scarcely credible. The prisoner’s statements had been perfectly fairly obtained and the jury were entitled to take them into fullest consideration. As for the incident of the policeman having seen two women on the steps of the house on the evening after the murder—that could perfectly easily be explained away. He probably mistook the night he saw the women there, or else he mistook the door: ‘you can account for it very easily by
supposing that he mistook the door.’ What was more, the policeman said that there was another man with him and that the other man’s recollection corresponded with his own—but the other man had not been produced before the Court. This was tantamount to the judge’s saying that the policeman’s claim as to this other man was not such as could be substantiated—a suggestion that all his evidence might be equally unreliable. In fact P.C. Campbell had made no claim whatsoever as to this man; he had said simply that he went to speak to a man standing by the railings of Sandyford Place, and while he was there one of the women passed him and went away. Of course, if the women had indeed been seen, the conclusion must have been that Jess was still alive on the Saturday evening—and where would his lordship’s case against the prisoner be then, poor thing? So the evidence of the policeman must be demolished without more ado. Just toss out this bit of the jigsaw—it doesn’t fit in.
When it came to his protection of the old man, he outdid himself; and yet his defence is clear and reasoned and extraordinarily telling—except that it is based on facts deliberately angled to reflect only the light of innocence. The poor dear old gentleman is very deaf and doddery and just a bit eccentric anyway. He wakes at night, hears a noise, the noise ceases and he goes back to sleep and thinks no more about it; ‘a natural enough thing.’ In the morning he wakes at six and lies waiting for the maid to bring him his breakfast. It seems a long time—longer than in fact it is. He thinks it is nine o’clock when he gets up, but really, the judge suggests, it’s eight. He goes down and knocks at the maid’s door, gets no answer and, going to the front door, finds that it is unbolted. So he automatically rebolts it—and then forgets having done so, just as you and I might so easily forget doing a thing like that, members of the jury, mightn’t we? Then when the milk-boy knocks, being already up, he goes to the door. Wouldn’t that account for it all?—even for the boy believing that he remembers having heard the rattle of the chain coming off the door (which in his lordship’s opinion he doesn’t really remember at all). Looked at that way, how neatly and innocently, members of the jury, it all falls in, does it not? The time the old man got up wasn’t nine at all, it was eight. ‘And the time for the milk-boy to come was between eight and nine. He says [Mr Fleming says] he sometimes came even later.
Mr Clark: ‘It was twenty minutes before eight when the milk-boy came. That was the statement of both the boy himself and his master.’
Lord Deas said they would see that when they came to the evidence, it didn’t touch his present observation at all. But it touched it very nearly; and in fact, once again, they didn’t see, for there was no evidence for them to come to—only the comment of the old man himself, rambling on about the irregular hours kept by the milkman—in direct contradiction to the very positive statements of the man and his boy, who both said they called that day at twenty to eight, and invariably called at twenty to eight.
But, anyway—why should Mr Fleming have denied opening the door to the milkman, members of the jury, if in fact he remembered doing so? What good could it do him? As to the boy saying he heard the chain taken down, well that would be only too easy to explain away, just as the judge himself had just explained it away. So why should he bother to deny it? The jury would ask themselves whether the whole thing wasn’t just a mere confusion after all.…
And so back to the prisoner. And here there comes a most monstrous suggestion, a most irresponsible and provocative suggestion, not only unsubstantiated but actually negatived by the evidence. He drags up for the second time the poor bottle, smelling of rum, found at Sandyford Place—the ordinary bottle, like a hundred thousand bottles, found among a lot of other bottles in the kitchen cupboard there. A trifle, he admits, but all these trifles add to the likelihood of the prisoner having been at the house that night. And then: ‘You will consider the circumstances as to this bottle of rum and the fact that Jessie M’Pherson, an admittedly sober, honest and steady woman, had that night been induced to partake of rum.’
It is a most wicked, unjust and false conclusion, based on no evidence whatsoever—suggesting as it does, deliberately premeditated murder, premeditated from the time of going out and buying the rum. Poor Jessie with her seven penn’orth of rum and her few poor little biscuits—shared first with her friend Mrs Fraser and the rest to be taken round to be shared with Jess. The very fact of the purchase was in fact entirely in her favour. It was bought openly with the declared intention of taking some to Sandyford Place; and this free admission of her intention of visiting her friend that night, was frankly acknowledged by the prosecution to negative any suspicion of premeditation. Yet the judge puts it forward as just that—evidence of premeditation; builds up from this false premise a story that the Crown never dreamed of suggesting—were far too scrupulous to suggest, had they even dared. The purchase of the rum, with this intention: the stupefying of the victim (there is no evidence whatsoever that Jess was unaccustomed to spirits); and then … ‘It was a deed of darkness.’ An excuse would be made, suggested his lordship, to stay the night, the unsuspecting friend of course easily acquiescing. Whether or not the murderess actually shared the bed with her, need not matter. She would wait till the victim was asleep and then, while she lay there trusting and defenceless, the first blow would be struck—the great cleaver raised and brought down with sickening ferocity across the sleeping, upturned face. One great blow across the forehead, two across the eyes, smashing into the bridge of the nose. But the injured woman rallies, drags herself somehow from the bed and escapes from the room and into the kitchen. There she is pursued, struggles, falls to the floor and, lying on the floor, is literally hacked to death. For a handful of silver, friend has savagely slaughtered friend.
Of course, conceded Lord Deas, it might not have happened like that; but it didn’t really matter very much how it was done.
There follows more comment on Jessie’s movements, Jessie’s finances; the dresses. Then back he comes to Mr Fleming. At one time it seemed to his lordship that an attempt was about to be made to prove that this old man was a man of bad character. But they had in fact heard nothing against him (Lord Deas himself had seen to that) except that he ‘looked too much after the servants’, in his own house and next door. Naturally they resented it. That was all it amounted to.
Mr Clark: ‘Then there was Mrs Smith’s evidence.…’ (The confidence Jess could not impart because of Mr Smith’s presence.)
But the judge would have none of it. What the dead woman had intended to confide to her friend was probably that she was thinking of emigrating. (Why this should have been not fit for male ears, his lordship did not make apparent.) She may perhaps have added, he conceded, that the old man was so inquisitive that she couldn’t live with him. The fact was that some of the maids had admirers coming about them, and the old gentleman might look a little too sharply after them; and it all boiled down to that.
And so on, through more and more of the evidence—invariably with the bias against the accused. As for counsel’s warning about circumstantial evidence, as to his remainder of that case of rape where the man condemned was found to be innocent after all—well, if the judge knew anything about that case (and he evidently did) it had been not a very good one to quote in this instance. If the Crown decided there was a doubt about the evidence and remitted his sentence, it didn’t follow necessarily that the man was innocent. And he turned the whole thing neatly round to pour a little more discredit upon P.C. Campbell and the low-set, stout woman with the red, fat face whom he claimed to have seen on the night after the murder. ‘A man might state that he saw people come to a house at night when it was not that house at all; and say that he saw people come out of one house when he saw them come out of another.’
Back to Jessie again, and once more through the ‘declarations’, balancing fact against the poor, desperate fictions—coldly and clearly and always to the prisoner’s disadvantage. Always with some measure of exaggeration of the facts against her, always with a toning down of what might be
in her favour. The keys to the Broomielaw apartment, the dresses, the trunk, the visit to Hamilton.… ‘As to the question whether the prisoner was a person of improvident habits, it is not one with which we have to deal, nor the question of what it was that the prisoner did with her husband’s wages.’ What the prisoner did with her husband’s wages, as had been amply shown, was to spend them—all eighteen shillings per week of them—on rent, heat, lighting, and food, on clothes for herself and her husband and her child; on help with the work she couldn’t possibly do herself and on doctors’ bills. ‘Whether the prisoner was a person of improvident habits.…’ One might have thought he could have spared her this final little jab; here at least have given her the benefit of the doubt.
And so it was over. If as reasonable men they felt no doubt that she was guilty, it was their duty to themselves, to their consciences, to God and to their country to say so. But if, notwithstanding all that evidence, they thought there were reasonable grounds, etcetera, etcetera—then they also knew the course that they must follow. And he handed over his bouquet. The case ‘has received from you as great attention as ever I saw paid by any jury.…’ and packed them off to consider their verdict. It was twenty-five minutes past two.
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