Fortunate Son

by David Marlett

  “Thank ya, my lord,” Mackercher said, then took a breath before continuing. “My lords, the witness’s testimony may be allowed on the grounds that the defendant has previously waived his right to claim such testimony as duly privileged. Evidence exists—”

  “My lord,” Malone interjected, “may we not conduct these arguments at the bench, or more preferably in chambers, rather than before this jury?”

  Justice Bowes leaned back, conferring with the other two judges. The courtroom fell dead silent, other than the indistinguishable murmur of the judges’ deep voices. Finally, Bowes sat forward, saying, “We see no reason at present, Sergeant Malone. Sergeant Mackercher, please state your evidence of the asserted waiver.”

  “Thank ya, my lords. Sergeant Giffard was counsel to the defendant, Richard Annesley, in the previous instance, but as James Annesley was not found guilty in that criminal matter, the defendant refused to pay Sergeant Giffard for the legal services he rendered. Sergeant Giffard then took the matter to the Court of Exchequer in London where a waiver was executed by the defendant allowing Sergeant Giffard to divulge to that court what legal services he had performed, in order that Sergeant Giffard could prosecute his claim for payment.”

  “Do you have that waiver?” asked Bowes, his aged hand already outstretched.

  “Aye, my lord.” Mackercher stepped up, Malone following, and handed the paper over.

  “My lord, may I see that?” asked Malone.

  “Of course.” Bowes allowed Malone to read it, then took it back. While Bowes read it, Malone turned his head and glared at Richard, who simply looked away. The paper was then handed to the other judges, who read it in turn. They put their heads together, whispered for a moment, then resumed straight postures. “All right, Sergeants, you may step back,” announced Bowes. Mackercher and Malone returned to their tables as Bowes addressed the jury, “Gentlemen of the jury, you will now be hearing rather unusual testimony. The witness, Mr. John Giffard, is a prime sergeant solicitor who represented the defendant, Richard Annesley, in a prior instance. The witness is no longer counsel to the defendant and therefore will not be coming before you in his capacity as such, but rather as a witness only. As the defendant did not pay Sergeant Giffard’s bill of….” He paused to read the waiver, then looked at Giffard, still waiting beyond the bar. “His bill of ten thousand pounds….”

  The gallery gave a collective gasp.

  “As Richard Annesley refused to make payment,” Bowes went on, “he was sued by Sergeant Giffard in a London court for collection. In that suit, Richard Annesley waived all rights of privilege between an attorney and client.” He lifted the paper. “This is that waiver.” He gave Richard a disdainful look that, to James, seemed to say, ‘you ignorant greedy man.’ Then he resumed with the jury. “Therefore, we shall allow Sergeant Giffard to come before you and give testimony that would otherwise have been disallowed. Sergeant Mackercher, you may call your witness.”

  Mackercher waited as Giffard came forward and was sworn in. Then he began. “What is yar profession, sir?”

  “I am an attorney of the Common Pleas in England and a Prime Sergeant Solicitor of the High Court of Chancery.”

  “Do ya know the defendant in this suit?”

  “Aye, I do. I was retained by the Earl on the fifth of May of this year to carry on a prosecution for murder against the plaintiff, James Annesley.”

  “And when was that trial?”

  “It was held in the Old Bailey on the third of June.”

  “So the conversations ya had with the defendant occurred during a one month period, sometime around May of this year? Is that correct?”

  “Aye, that is correct.”

  “And as was mentioned before ya came to the stand, Richard Annesley was unhappy with yar performance in the murder prosecution and refused to pay yar fees?”

  “Whether or not he was unhappy with my performance, I can only surmise. I do know he was extremely disconsolate that his nephew was not hanged.”

  “How do ya know this?”

  “When the waiver was signed, one of his men, a Captain Bailyn, carried it to London and threatened to kill me if I further pursued payment from Lord Anglesea.”

  “Did ya pursue the suit for payment?”

  “Aye, I did. And it was granted.”

  “Do ya know where Captain Bailyn is now?”

  “Somewhere quite hot, I suppose.” Giffard flicked a small smile at James.

  Mackercher continued, “Most likely so. He’s dead, correct?”

  “That is my understanding.” A nervous chuckle rose in the room, then faded quickly.

  “What was the court’s verdict in yar suit?”

  “I was awarded my fees but have yet to be paid. Indeed, I’m certain I never shall be.”

  “Why is that, Sergeant Giffard?” Mackercher asked, stepping closer to the witness box.

  “I must object, my lord,” Malone said. “The witness’s knowledge about the defendant’s financial habits or property is not relevant to this proceeding.”

  “I will allow it,” Bowes said, then glared at Mackercher. “But get to its relevance.”

  “Aye, my lord.” Mackercher turned back to Giffard. “I asked—”

  “I remember the question. I was never paid because Richard is penniless, best I can determine.” A surprised muttering erupted throughout the courtroom.

  Bowes raised a hand. “Continue, Sergeant Giffard.”

  “Aye, my lord. The man has so heavily encumbered the Anglesea Estate that there are more debts outstanding against it than its capital on the whole.”

  James slumped back in his chair, gut punched.

  Mackercher was clearly surprised as well. “Ya are not saying the entire estate of the Earl of Anglesea is worthless, are ya?”

  “Not exactly. ‘Tis of great worth, valued at several million pounds, to be sure. But Richard, the current Earl of Anglesea, and quite probably his brother before him, has incurred debts of greater amounts.”

  James closed his eyes. “Sergeant Giffard,” Mackercher continued, now more slowly, “how did ya come to know of such private finances? Have yar factors investigated the man?”

  “Nay. I could be mistaken. I’ve looked into the matter as best I can, but the Anglesea estate is broad and grand, not easily assessed.”

  “I would think not.”

  Malone was standing. “I must object. This inquiry, ostensible as it is, into the defendant’s private affairs is highly irrelevant.”

  “Sergeant Mackercher,” said Bowes, “move this line of questioning back to the issue at hand or release this witness.”

  “Aye, my lord. Sergeant Giffard, did the defendant tell ya why he wished to prosecute murder charges against his nephew, James Annesley?”

  “Aye. He said the man should be hanged, at any price. He and I traveled to London in late May, but once there, we stayed apart, generally speaking. He thought it inadvisable to be seen in my company. Most messages between us were conducted thereafter by Captain Bailyn.”

  Mackercher frowned. “The one who later threatened to kill ya?”

  “The very same.”

  “Yet before ya went to London, ya had direct conversations with the defendant?”

  “Aye. And one particular occasion in London.”

  “What did ya discuss in those conversations?” Mackercher moved close to the jury box.

  Malone jumped. “My lords, this is privileged—”

  “No,” barked Bowes. “I have already ruled it allowable. Take your seat sir.”

  Malone complied, slowly.

  “He said he had arranged a witness, a Mr. Seán Kennedy, the son of the man James accidentally shot. Mr. Kennedy was to testify that it had indeed been an intentional killing.”

  James winced, imagining Seán was uncomfortable as well. James knew Mackercher would not explore this issue regarding Seán. That was their agreement. Nevertheless, it was bad enough simply
hearing this much said.

  “Did he ever tell ya, sir….” Mackercher paused, facing the jury, lowering his voice. “Did Richard ever say that he knew James Annesley was the rightful heir to the title and property of the Earl of Anglesea?”

  “Aye, he did. And he told me he had kidnapped the boy, sold him into slavery to remove him from Ireland.” The courtroom flared with murmurs.

  “Silence,” warned Bowes.

  “He did?” asked Mackercher, as if surprised. “The defendant….” He walked to stand in front of Richard, then pointed at him. “This man here, the defendant, he told ya that?”

  “He said that was why James had to be hanged. He wanted to be rid of him. That since James returned from the American Colonies, the young man had been nothing but a nuisance. He said he wished to have killed James while still a boy, rather than to have transported him.”

  “All right.” Mackercher gave Richard a wicked smile. “So, once again, Sergeant Giffard, ya’re saying that Richard Annesley, in private conversation with ya, admitted James Annesley was the rightful Earl of Anglesea?”

  “Aye. He told me so.”

  “Thank ya, Sergeant Giffard.” Mackercher stood motionless, staring at Richard, who met his gaze. Then Mackercher smiled, clapped his hands once, and turned back to the bench. “We pass this witness for cross-examination.”

  Bowes peered at the defense table. “Sergeant Malone?”

  Malone stood, his face ashen. “Aye, my lord,” he said.

  Mackercher took his seat beside James, leaned over, and whispered, “We have him. All he can do now is assault the man’s character.”

  “Sergeant Giffard,” Malone said slowly, as if unsure how to begin, “do you know if Lord Anglesea was aware of James Annesley’s innocence or guilt in the murder trial?”

  “Aye. Richard knew James was innocent. He told me so.”

  “Yet he sought to have him hanged?”

  “Aye,” answered Giffard.

  Malone advanced slowly. “Did you not believe that to be a most wicked crime in and of itself—to seek the hanging of an innocent man?”

  Mackercher grinned, then whispered to James, “Here it begins.”

  “Nay. I did not,” Giffard replied coolly.

  Malone grasped the rail around the witness box. “Nay? As an attorney, a solicitor before the King’s Court, one who sets himself out as a man of integrity and honor, how could you engage in such a prosecution without objection? How could you represent a client, carrying out his orders, when you had full knowledge of the lies being perpetrated?”

  Giffard snapped, “I may as well ask you, sir, how you came to be here today? How you came to be engaged for the defendant in this very case? You no doubt know the truth of this matter.”

  Malone froze, staring at Giffard, mouth agape, then pulled his lips in tight.

  “Sergeant Malone,” Bowes barked irritably, “have you finished with this witness?”

  “I have another question or two.”

  “Are you certain?” Bowes asked with an obvious nudge.

  “Aye, my lord.” Malone stepped back to his table. “Sergeant Giffard, did you not comprehend that your actions would be for a bad purpose, to unjustly compass the death of another man?”

  “I was not there to undertake a bad purpose. I was there to conduct a prosecution. If there was any dirty work, I was not concerned in it.” To that Malone gave a chuckle which to James sounded forced. Giffard continued, “Again, Sergeant Malone, I must ask how you came to be engaged in this suit without objection?”

  Now Malone erupted, firing back, “I make a distinction between carrying on a civil defense and a murderous prosecution that has as its only objective the death of an innocent man!”

  “Oh? How came you to that distinction—by your wits?”

  Bowes intervened. “Gentlemen! This is not the forum for a debate of your legal ethics. Sergeant Malone, do you have anything else relevant to this trial?”

  Malone took his seat, muttering, “Nay, my lord.”

  “Sergeant Mackercher?”

  Mackercher stood. “My lords, with yar permission, the plaintiff rests his case.”

  “Very well. This court stands adjourned until one o’clock this afternoon, at which time we shall begin the defendant’s case in prime.”

  James grabbed Mackercher’s shoulder, giving him a warm squeeze, then turned to Laura with a smile. As she returned it, James saw a glisten in her eyes, a tear nearly formed. Glancing at Seán, he was stopped by the accession he saw there—a repressed chin, an embarrassed grimace. James shrugged with a three finger salute. “Through ice” he mouthed softly. Seán nodded a silent “thank you.”

  Chapter 39

  O what is greatness, when purchased at the expense of all that can render the possessor

  deservedly respected by the world, or easy in himself? In vain does the unjust aspirer

  hope to cover his infamy with ill-got titles and the glare of pomp—the base groundwork

  is visible through all the tinseled outside. Man sees it with contempt, and Heaven with abhorrence.

  — Memoirs of an Unfortunate Young Nobleman, James Annesley, 1743

  Frigid dampness descended on Dublin in great grey blankets of drizzly fog. The courtroom was dark and chilly, and James looked back at Laura hoping the green cape he bought her was keeping her warm. She gave a weary smile. They were both tired, tired of the long hours, day after day, the cold room, the hard seats not made for weeks of sitting. Mostly they were tired of the unrelenting spout of lies that gurgled from the witness box throughout Richard’s defense. At first James had maintained mild annoyance when witness upon witness took the stand relaying blatant fabrications about Arthur and Mary. Some, in fact, were so ludicrous they were laughable, like the two men with thick Hibernian dialects, whom James had never seen before, yet claimed to have been his childhood friends. One woman blustered on about being Arthur’s mistress, until Mackercher got her to admit under cross that they had done nothing more than dance together at a Parliament ball. But James found none of the tales amusing anymore. They were beyond ridiculous. Now Mackercher was putting down the latest: “So, ya really don’t know what Mary said about her son?”

  “Aye, I do.”

  “Mr. O’Malley,” Mackercher shouted as he spun, leading with an accusing finger, “I believe ya said yar father told ya these things. Is that not correct?”

  “Aye. He did.”

  “So ya never heard these things yarself?”

  “My da was no liar!” blurted the witness, his face reddening.

  “Oh, I’m sure. But would you tell us things untrue?” Mackercher snapped. Malone jumped up, objecting. Bowes leaned forward slowly, resting his chin on his tented fingers, but didn’t speak. Malone sat.

  “All right, Mr. O’Malley,” Mackercher continued. “Did you, with yar own ears, ever hear Mary Sheffield say James was not her child?”

  “I already said, my da—”

  “Nay!” Mackercher thundered. “I asked what you heard from Mary!”

  “Umm” the quailing man began. “Not that I recall, but—”

  “Finally. I’m done with ya,” said Mackercher, huffing back to his table.

  “Step down, Mr. O’Malley.” Bowes gave a dismissive wave. “Sergeant Malone?”

  Malone was already up. “The defense calls Charity Heath to the witness box.”

  “Very well,” Bowes mumbled.

  James watched the aging woman slowly stride the aisle, past the bailiff at the gate, then on to the witness box.

  “Raise yer right hand, placing the other firmly on the Holy Bible,” the court officer instructed. Charity did as she was told. “Do ye swear, ma’am, on this Holy Bible and before this court, and upon yer oath to King George the Second, that the testimony ye shall give unto this court this day shall be the truth and nothing other than the truth, so help ye God?”

  “I do so swear,” she muttered
, then added faintly, “I will.”

  “Please be seated.”

  As Charity sat, she glanced nervously at Richard before settling her gaze on the approaching Malone.

  “Madam Heath, you were the attending servant to Lady Anglesea?” he asked, rubbing his forehead as he spoke.

  “Aye, sir. I was.”

  “During what years were you such?”

  “Before she was married to Lord Anglesea, during that time, till she left Ireland.” Her words were woven tightly.

  Malone paced before the jury. “Did you live with her during those years?”

  “Always. I always did. Aye, sir. I was with her constantly, I do say.”

  The steady click of Malone’s shoes stopped, then he slowly turned to face Charity. “Then you should know. You should be able to settle this matter for us. Had Lady Anglesea a child at Dunmain House?”

  Charity scooted a little sideways, glancing at Richard again, then down to Malone’s feet. “Nay, sir. She never did. Nor was she ever with child.” A polite gasp from the spectators.

  Malone continued, “And Madam Heath, you said, I do believe, that you were with Lady Anglesea always? The entirety of her time in Ireland?”

  “Aye. I always dressed and undressed m’lady. And at Dunmain House, I always put her to bed, then attended at her rising in the morning, for she was such a person that wouldn’t permit anyone else to do it. She couldn’t possibly have been with child without my knowing it.”

  “Thank you, Madam Heath. Now tell us, do you remember the day your lady left Dunmain House?”

  “Aye. Arthur, Lord Anglesea turned her out, and I went with her to New Ross. And then we moved here, to Dublin.”

  Malone advanced closer. “Just the two of you? Not James as well?”

  She frowned, her lip quivering. “Aye. ‘Tis true.”

  James eased forward in his chair, glowering at Charity, who had yet to look at him.

  “Why didn’t Lady Anglesea take James with her?” Malone pressed.