Later in the day, Kane examined his Advocate’s Box, where bits and pieces of work would be deposited for the attention of Counsel. Frequently empty - apart from the odd, unwelcome bill - today it held a number of papers bound by a pink ribbon.
The papers proved to contain supplementary statements in Lord Albert’s case. Kane took the bundle into the Advocates Library and began to study them. Despite being in the handwriting of a legal copyist, the voice of Lord Albert could be heard loud and clear:
“So it was arranged that we should meet at five o’clock in the evening, as the sun was setting, and we should resolve the issue there. At the top of Calton Hill. Near that awful Horatio Nelson monument, the one that looks like the upside-down telescope. I took my Second-in-Command, Captain Harry Street. And as we were drawing up in our carriage, I could see that the blackguard Jack Smith was already there with his own Second (don’t know that fellow’s name. Think it was his cousin). They had also brought a surgeon, in case one was needed (didn’t know that chap either).
“My own Second, Captain Harry Street, went over and asked Smith if he was prepared to offer an apology. Smith refused. Harry retrieved my pistol case from our carriage. It has my initials on it. I always keep a brace of pistols at the ready for such occasions. Jack Smith and I watched while Harry and the other Second measured out the twelve paces. I took my place and stood facing Smith. We were handed our pistols. The word was given and we discharged the weapons.”
Kane looked up from his papers. He recalled the conversation with Collins the previous day. Two men arrange to meet and deliberately fire pistols at each other. What happens if one of them dies? Does the fact that it’s over a matter of honour make it any less of a murder? He continued reading:
“...and I aimed my shot just above the top of his head. I aimed it so that I might give the scoundrel a new parting in his hair. As I said, I am something of a crack shot. Regarding John Smith: I had nothing to fear. I knew him from the army, and he was a rotten shot. Couldn’t hit an elephant with a spade. As I say, I thought I would teach the beggar a bit of a lesson, so I aimed carefully. Bang. Pistol ball hit its mark. Blew his hat off. Gave Smith such a turn - he fainted on the spot...”
Kane stopped again and considered this. With Smith collapsing after the shot, it must have looked as if he had been shot dead. The remainder of the facts were: a passing clergyman, who had been walking his dog, witnessed the scene (“...they were pointing their pistols at each other. They discharged the pistols. The next thing I knew, the younger man was lying on the ground...”; he went over to lend assistance; he watched as the surgeon examined Smith’s body for injury; no obvious injury; Smith was revived with smelling salts; honour satisfied, all left the scene. Lord Albert and his Second, Captain Harry Street, immediately called in at the Police Office at the side of St Giles Church and - according to the statement of the desk sergeant, Sergeant Wilson - the following exchange took place:
SGT WILSON: Good evening, Lord Albert.
LORD ALBERT: Good evening, Sergeant Wilson.
SGT WILSON: And how may I assist you, sir?
LORD ALBERT: I am your prisoner, I believe.
SGT WILSON: On what account, Lord Albert?
LORD ALBERT: I have been contesting a matter of honour with an individual named ‘Smith’.
SGT WILSON: Ah, a matter of honour. Again. Well, as you will see, sir, we have other, pressing business to attend to at present.
LORD ALBERT: Then I shall leave you my card. It contains my address if that is what you require.
SGT WILSON: Very well, sir. Many thanks.
Sir Albert’s Second, Captain Harry Street also wrote his own details on the back of the card. Sir Albert then left the card with the desk sergeant and repaired to his Edinburgh house at Moray Place.
At a later (and it must be said, leisurely) point, police officers attended at the home of Harry Street and they took a full account of the event. They subsequently took an account from Jack Smith. Ultimately, Lord Albert was arrested and received a Petition, charging him with Attempted Murder.
Kane considered the evidence as a whole. In terms of a prosecution, the essentials seemed all in order for the charge. They had the Complainer (Jack Smith); the Accused (Lord Albert); the “evil intent” or “wicked recklessness” necessary to make out the Attempted Murder (a man with a grudge arranges to meet another man in a secluded place and fire a deadly weapon at him - aiming so close above his head that it would “create a new parting in his hair”); and the corroboration seemed plentiful - witnesses: Captain Street; and then Jack Smith’s Second, his cousin - whatever his name; the surgeon who treated Smith after his hat was blown off; the clergyman who witnessed Sir Albert at the scene, pistol in hand; Sir Albert’s admission to the police sergeant at the police office; even the hole that had been blown in Smith’s hat could provide corroboration.
Small wonder that the old lord had been consistently advised - and, no doubt, by good lawyers too - to plead guilty. A guilty plea, and then throw himself on the Mercy of the Court seemed the only way forward.
Kane placed his papers into a neat bundle: Ah well, as always the burden of proof will be on the Crown - but I shouldn’t expect that Charles Cod will be losing much sleep over this one. The problem is the penalty, though. The penalty for Attempted Murder…
Edward Kane sighed. Once this comes to trial, honour or no honour, the old man will be destroyed…
Ross Macfarlane QC has written The Scotsman Christmas story every year for the last ten years. His Scotsman story “Mr Charles Dickens and the Tale of Ebenezer...Scroggie” was chosen as the featured fiction by the international organisation, the Dickens Fellowship in 2017. His novella “Edward Kane and The Matter of Honour” is set in Edinburgh in the same period, the mid-19th Century and has been specially commissioned by The Scotsman. Illustrations by Lesley-Anne Barnes Macfarlane.