Edward Kane, Advocate in The Hanged Man. Chapter 3: The Lessons of ‘Half-Hangit Maggie’

Illustration:  Lesley-Anne Barnes Macfarlane

A hundred years before, Maggie Dickson was an unfortunate barmaid who found herself pregnant with an illegitimate baby on the way.

The baby was later found dead by the banks of the River Tweed. The hapless Maggie was found guilty of murder and sentenced ‘to be hanged’. Thus it was that Maggie Dickson found herself climbing the scaffold in Edinburgh’s Grassmarket on 2nd September 1742. The hanging itself was pretty pedestrian except for reports that a group of medical students had started a fight when they were trying to cut down Maggie’s body and sell it to the dissection rooms.

The body was put in a cart. Half way on the journey to her grave in Musselburgh, the drivers popped in for a ‘quick one’ in a local inn, leaving the coffin in the cart. When they came out, according to some stories, they found Maggie sitting upright in the box, as right as rain. The problem became a legal one. She had already been punished in the prescribed form and could not be tried again for the same crime. So they let her go. ‘Half-Hangit Maggie’ lived for another 40 years. Her enduring legacy to the Law of Scotland was to change the wording of the sentence from the simple word ‘hanged’ to the more all-encompassing phrase ‘hanged until dead’.

And that’s what had happened to Dr Jack Balloch. He had been hanged. Until dead. He must have been dead, because a doctor had pronounced him dead at the scene. Unusually, perhaps, there was even a formal Certificate of Death. So what now?

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Edward Kane handed the paper to the Clerk of Court and the Clerk handed it up to Lord Eriskay.

Kane nodded towards the document: ‘As my lords will see – a Death Certificate has been provided…’

Eriskay studied the document. He gave a wry smile: ‘It appears to be in order’. He laid it on the bench before him: ‘But a question, Mr Kane. If the gentleman you represent is dead, then who is paying your fee today?’ He waved to the scribbling solicitors in the row behind the Advocate: ‘And the fees of his law agents there?’

Edward Kane’s mind was suddenly a blank piece of paper. He raised his eyebrows: ‘If I might?’ The judge nodded. Kane turned around and quizzed Philip Phipps, the solicitor, sitting behind him. Phipps muttered: ‘The fees will be paid out of the prisoner’s estate. Dr Balloch’s brother is the executor.’ Kane turned back and looked up: ‘I understand that the fees will be met from the, um, estate of the deceased.’

Lord Eriskay had a twinkle in his eye: ‘So, the fees are to be paid from the estate of a man who is dead in order to prove that that same man is alive?’

‘It would, um, appear so, my lords.’

Lord Lothian had had enough: ‘Balderdash, sir balderdash! A main seeking to escape punishment by declaring that he is dead while asking this court to free him from prison so that he can live out the rest of his life.’ The judge sat back in his chair: ‘I’ll retire to bedlam!’

Kane raised his eyebrows: ‘I accept, my lords, that the situation is…uncommon, but until this gentleman has a determination, he exists in limbo.’

Lothian was not assuaged: ‘“Limbo”? He should be in ‘another place’ by now, sir.’ The judge’s ire did not extend to uttering the full word that was in his head.

Lord Eriskay got up and out of his chair and nodded to the other judges to follow him. Standing at the back wall behind the judicial benches, their backs to the public gallery, the three decision-makers attempted to hammer out some kind of answer to the legal proposition before them. Kane sat down and while he could not make out the actual wording of the dispute, he could could hear the sounds of the rumbling discontent of Lothian, the gnomic pronouncements of Crumlish and the measured tones of Eriskay – oil on the troubled waters.

Edward Kane | Ross Macfarlane

After a deal of judicial wrangling, the judges resumed their seats. Lord Eriskay looked down at the young Advocate: ‘Mr Kane, we are grateful for your submissions, but I am afraid that in these difficult – and, I am bound to say novel – circumstances, we are unable to reach a consensus today.’

Lothian gave an audible grunt of displeasure. Eriskay continued: ‘Thus we will continue for seven days for further submission and consideration.’

Kane bowed: ‘Obliged, my lords.’ But this was not enough for Kane’s instructing solicitor. Kane felt a sudden (and far from gentle) tug on his gown from behind. The solicitor hissed: ‘Bail! Move for bail!’

Kane looked up at the judges: ‘I wonder…’ Kane stalled a little now, ‘I wonder if I might move for bail, my lords?’

The judge in the chair shook his head: ‘Come, come, Mr Kane. Bail? For a murderer? I think not. Seven days…’

And at that, the Macer cried ‘Court rise!’ and the three judges left their seats and poured themselves out through the back door.

Kane looked behind. Philips Phipps was frowning: ‘Oh, Mr Kane – Doctor Balloch will not be happy with this result. Not happy at all.’

Kane had yet to meet the good doctor, but something told him that this was likely to be a difficult client.

TOMORROW: ‘He wants to see the dog…’