Kane shook his head: “I fear that the next witness will prove to be the end of our case. This is the cast-iron witness that the Crown has been waiting for. He assisted Lord Albert as his Second in the duel, he can identify both our client and the complainer and he saw the shot being fired. He is the complete witness, I fear.”
Norris and Kane continued to walk up and down. Inspiration was not forthcoming. Then they noticed Charles Cod waving them over. Norris greeted him cheerfully: “Charles, dear chap. You look anxious. What is the matter? Is the next Crown witness on a ship to Timbuctoo?”
Cod laughed good-naturedly: “I confess that I would be tempted to join him…”
Norris and Cod laughed. Here were two friends who were often on opposite sides of one another, but who shook off the results of each case and renewed their friendship each time. Cod got to the point: “Now, I have reviewed the papers. And despite the Dean’s - how shall I put it - ‘encouragement’ to reduce the charge here, I regret that I cannot see any scope for that, Norval.”
Norris nodded: “Quite understand, Charles. This is the High Court of Justiciary. You cannot exactly reduce a charge from Attempted Murder to a Breach of the Peace...”
They both laughed…
Kane checked his Advocates Box. No work. Kane joined his friend Collins and they sat, sipping their coffee in the Advocates Reading Room. Kane took out his pocket watch, noted the time and sighed: “…and thus, at 2 o’clock today, my friend, our carefully-constructed house of cards will tumble down.”
Collins laughed: “Ah, Edward. Fiat justicia - though the heavens tumble.”
“Indeed, Collins, indeed.”
Collins smiled: “But you will be able to regale your children and grandchildren about the notable case of the old nobleman and the matter of honour...”
Kane laughed in spite of himself. Collins continued: “...a music hall entertainment in which pretty young wife was called an ‘alleged actress’ by a blackguard who fled the country with his Second so that they could avoid prosecution themselves for taking part in a duel in which the only real casualty was an expensive top hat...”
Kane laughed again. But then frowned. He began rubbing his temples. Collins studied him, concerned: “Are you quite well, my friend?”
But then Kane covered his mouth: “Oh, Collins, Collins, my friend - you are quite simply a man of genius.”
And with that, Edward Kane, Advocate, dressed in full wig and gown – ran out of the room.
The courtroom was hushed now as Captain Harry Street took the stand.
The word was out: here was the witness who would finally sink the chances of the old nobleman, Lord Albert Arthur.
It was well-known that Captain Harry Street was Lord Albert’s dearest friend, but it was also known that Street was a man of honour who would never lie under oath for anyone or anything. And so, Harry Street was sworn in. And the prosecutor got to it: “Now, Captain Street, you are a friend the accused here – Lord Albert Arthur?”
Lord Albert gave Street a cheery wave from the dock. The witness smiled back and was about to answer - but Norval Norris had bolted to his feet: “Don’t answer that question.”
This took everyone by surprise - not least the judges. Lord Wallis looked down: “Mr Norris, we do expect objections from you, sir, but, I venture, not quite so early in the examination...”
Norris addressed the court: “Thank you, my lords. I concede that the objection is early but, as I will demonstrate, not premature...”
Lord Wallis looked over at prosecutor Charles Cod, and motioned for him to sit down. Cod, with a rueful sort of grin on his face, shook his head slowly. Then eased down into his chair.
The judge picked up his pen: “Yes, Mr Norris?”
Norris continued: “It is trite law, my lords, but law none the less, that no man, when giving evidence, is obliged to incriminate himself.”
Lord Wallis nodded: “Of course, Mr Norris. And what is the issue here?”
“This witness,” Norris pointed to Harry Street “is being asked if he knows the accused...”
The judge interjected: “Mr Norris, despite Lord Albert’s undoubted failings, I am quite sure that the act of knowing him does not constitute a criminal offence...”
Much laughter from the public gallery. And a broad smile from the old man in dock.
Norris smiled: “Not ordinarily, my lords. But in this case, the witness is being asked the question with the intention of showing that the witness knows the accused and then actively assisted the accused - acting as his Second in a duel - in what is alleged to be an attempt at murder.”
Lord Wallis was silent for a moment. He then nodded, and started writing.
Norris continued: “The simple fact is this: any person who took part in such an event is liable to be prosecuted. Why do we think that the so-called ‘victim’ Mr Jack Smith is not here today?” Norris smiled down at Edward Kane. “As my Learned Junior reminded me, only this afternoon: the alleged ‘victim’ of the offence, and his own Second and even the phantom surgeon who was there to treat any wounds...”
All three judges were listening closely now.
“...the allegation is that they were all there for the same reason. To participate - each according to his own role - in the duel. The duellists, the men helping them, the surgeon...if one of them is guilty of Attempted Murder...”
Lord Wallis nodded and finished the sentence: “...then they are all guilty of Attempted Murder, given the common purpose here.” The judge leaned back in his chair and considered this: “I see your point, sir. As in an act of robbery, the man who acts as a look-out is no less guilty than the man who robs the victim...”
Norris nodded: “Precisely, my lord. The principle of Art and Part applies. Thus, when Captain Street here is being questioned,” Norris pointed to the witness, “then my lord requires to inform him that he does not require to answer any question that may incriminate him. Even a question that appears to be the most innocent one.”
Lord Wallis looked at the ceiling for a moment, then looked around at the other judges. Again, all three judges got up out their chairs and formed a huddle with their backs to the lawyers. Much discussion - then back to their chairs. Lord Wallis addressed Charles Cod:
“Advocate Depute, you have heard Mr Norris’ argument. As a matter of law, it must be correct. I intend to give the relevant warning to this witness.”
Cod bowed: “I have anticipated the issue, my lords. The focus of my questions is what this witness saw, not what he did. Thus, there should be no impediment to his answering”
Wallis nodded: “Very well.” He turned to the witness: “Captain Street, if you are asked any question that you feel might incriminate you in any way, then you are not obliged to answer that question. Do you understand, sir?’
The witness considered this for a moment, then: “Any question, my lord?”
The judge nodded: “Any question.” He turned to the prosecutor, inviting him to continue: “Yes?”
Charles Cod asked the question: “Now, Captain Street - you know Sir Albert Arthur, do you not?”
The witness thought for a moment, then: “Sorry, sir. I shan’t answer that.”
Cod smiled: “I merely ask if you know the gentleman in the dock, sir?”
The witness smiled back: “Well, that would be telling, wouldn’t it, sir. Sorry - not answering that one.”
Cod got testy: “On what basis, sir?”
Captain Street cocked his thumb in the direction of the judge: “What he said.”
Cod huffed and puffed somewhat: “I merely ask if you know Sir Albert Arthur. As I understand it, and it is well-known, you served in the army together...”
The witness thought for a moment, then pointed at the judge again: “What he said...”
Charles Cod, Advocate Depute stared at his papers...
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.