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Kow-towing to the Bencha lesson in contempt law for court bullies
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Kow-towing to the Bencha lesson in contempt law for court bullies |
| Contempt - An extract from Great Legal Disasters by Stephen Tumim - AT THE TIME OF the joint trial of Deacon Brodie and George Smith, John Clerk had been at the bar for less than three years. It was a notorious case. Deacon Brodie, whom Stevenson was to model Dr Jekyll and Mr Hyde on, was a merchant, councilor and clubman of Edinburgh. He was charged together with Smith with breaking into the General Excise Office for Scotland. He was suspected of a whole series of burglaries and robberies, committed with Smith and with two other disrepu- table characters, Ainslie and Brown, who were allowed to save themselves by giving vital evidence for the prosecution. On behalf of the Deacon, the services of the Dean of Faculty, the leader of the bar, Erskine himself, were retained. Smith, less substantial, was represented by young John Clerk, lame, plain and enthusiastic. Early in the trial Erskine and Clerk objected to the admission of the evidence of Ainslie and Brown, as they were clearly accomplices in the crime. Lord Braxfield and the four other judges ruled against them. At about two in the morning, fortified by a bottle of claret. Clerk rose to address the jury on behalf of Smith. He began by referring to his own inexperience. LORD BRAXFIELD : Be short and concise, sir, at this hour of the morning. CLERK: Pray, Your Lordship, let me proceed. LORD BRAXFIELD : Well then, proceed, young man. Clerk steadily proceeded, and among the flickering candles, firmly asserted that Their Lordships should not have allowed Ainslie and Brown to give evidence. LORD BRAXFIELD : Do you say that, sir, after the judgment which the court has pronounced? That, sir, is a most improper observation to address at the outset to the jury. LORD STONEFIELD : It is a positive reflection on the court. LORD HAILES : It is a flat accusation that we have admitted improper evidence. LORD ESKGROVE : I never heard the like of this from any young counsel at the beginning of his career at this bar. LORD BRAXFIELD: With these admonitions, go on, sir , proceed, sir. CLERK : Aweel, My Lords, if I go on, I beg to assail at the outset the evidence of these two corbies or infernal scoundrels, Ainslie and Brown. LORD BRAXFlELD; Take care, sir, what you say. CLERK: Yes, My Lords, I say that they are both most infamous characters. Gentlemen, you should discard such vagabonds, and not rely on their evidence in any way; and you knock out the vile brains of their evidence in this case, there is nothing else remaining on which you can convict my poor client, except his own very candid declarations which I have already explained to you. Gentlemen, these nefarious witnesses Ainslie and Brown should have stood at this bar this night instead of my client, who was happy in his domestic privacy with his poor, honest, inoffending wife whom you this day saw - and my heart bleeds for (Public applause suppressed.) Gentlemen, Ainslie contradicts himself, and Brown is not to be believed. With respect to this said Mr John Brown alias Humphrey Moore, you had it out of his own mouth that he was a convicted felon in England, and I say to you that no convicted felon ought, by the good and glorious law of Scotland, to be received as a witness in this or in any other case m the British dominions. (Great applause suppressed.) LORD BRAXFIELD: Mr Clerk, please restrict your reflections. The court has admitted the witness. CLERK : Yes, My Lords. I know that very well, but Your Lordships should not have admitted him, and of that the jury will now judge. LORD BRAXFIELD: This is most indecent behaviour. You cannot be allowed to speak to the admissibility; to the credibility you may. LORD STONEFIELD : This young man is again attacking the court. CLERK : No, My Lords, I am not attacking the court; I am attacking that villain of a witness, who, I tell Your Lordships, is not worth his value in hemp. LORD BRAXFIELD: The court, sir, have already solemnly decided, as you know, on the objections raised by the Dean of Faculty, that in law the objections to these witnesses should be repelled, and they were repelled accordingly; therefore you should have nothing more to say to us on that point. ERSKINE, DEAN OF FACULTY : If it will satisfy Mr Clerk, I can assure him that I will plead on this point to the jury, waiving all objections to the admissibility, which it may be rather irregular to plead after the decision of the court. LORD BRAXFIELD: Dean of Faculty, I know you will attempt nothing that is improper. CLERK : But, My Lords, the jury are to judge of the law as well as the facts. LORD BRAXFIELD : Sir I tell you that the jury have nothing to do with the law, but to take it simpliciter from me. CLERK : That I deny. If the ceiling cracked asunder at this point, the court seems physically to have remained intact. LORD HAILES (slowly): Sir, will you deny the authority of this High Court ? CLERK : Gentlemen of the jury, notwithstanding of this interruption, I beg to tell you, with all confidence and all respect, that you are the judges of the law as well as the facts. You are the judges of the whole case. LORD BRAXFIELD : You are talking nonsense, sir. CLERK : My Lord, you had better not snub me in this way. I never mean to speak nonsense. |
| Ceiling did not fall
in LORD BRAXFIELD : Proceed - gang on, sir. CLERK: Gentlemen, I was telling you that this infernal witness was convicted of felony in England, and how dare he come here to be received as a witness in this case ? LORD ADVOCATE (for the Crown): He has, as I have shown you, received His Majesty's free pardon. 
CLERK : Yes, I see; but gentlemen of the jury, I ask you, on your oaths, can His Majesty make a tainted scoundrel an honest man ? The ceiling still did not fall in. There was great applause. LORD BRAXFIELD : Macers, clear the court if there is any more unruly din. LORD ADVOCATE : Sir, permit me to say, after this interruption, that the prerogative of mercy is the brightest jewel in His Majesty's Crown. CLERK : I hope His Majesty's Crown will never be contaminated by any villains around it. LORD BRAXFIELD (to the Lord Advocate, the Scottish Attorney-General): Do you want his words noted down ? LORD ADVOCATE : Oh no. My Lord, not exactly yet. My young friend will soon cool in his effervescence for his client. LORD BRAXFIELD (back to Clerk): Go on, young man. CLERK : Gentlemen of the jury, I was just saying to you, when this outbreak on the bench occurred, that you were the judges of the law and of the facts in this case. LORD BRAXFIELD: We cannot tolerate this, sir. It is an indignity to this High Court - a very gross indignity, deserving of the severest reprobation. CLERK : My Lords, I know that Your Lordships have determined this question; but the jury have not. They are judges both of fact and of the law, and are not bound by Your Lordships' determination, unless it agrees with their own opinion. Unless I am allowed to speak to the jury in this manner, I am determined not to speak a word more. I am willing to sit down if Your Lordships command me. Mr Clerk sat down. LORD BRAXFIELD : Go on, sir; go on to the length of your tether. Mr Clerk stood up. CLERK : Yes, gentlemen, I stand up here as an independent Scottish advocate, and I tell you, a jury of my countrymen, that you are the judges of the law as well as of the facts. LORD BRAXFIELD : Beware of what you are about, sir. Mr Clerk sat down. LORD BRAXFIELD : Are you done, sir, with your speech? CLERK : No, My Lord, I am not. LORD BRAXFIELD: Then go on, sir, at your peril. LORD HAILES : You had better go on, Mr Clerk. Do go on. CLERK : This has been too often repeated. I have met with no politeness from the court. You have interrupted me, you have snubbed me rather too often. My Lord, in the line of my defence. I maintain that the jury are judges of the law as well as of the facts; and I am positively resolved that I will proceed no further unless I am allowed to speak in my own way. LORD BRAXFIELD : Then we must now call upon the Dean of Faculty to proceed with his address for the prisoner Brodie, which the court will hear with the greatest attention. Erskine shook his head from side to side. Lord Braxfield drew himself up to begin his summing-up. CLERK (jumping up and shaking his fist): Hang my client if you dare, My Lord, without hearing me in his defence. The judges had never heard anything like it. They rose and retired to their private room. When they returned. Lord Braxfield merely invited Mr. Clerk to proceed with his speech; and quite quietly Clerk proceeded. But it got him nowhere. His client and the Deacon were convicted and hanged. Lord Braxfield has passed down to history and legend as the most coarsely ferocious of Scottish judges John Clerk became Solicitor-General for Scotland, and later, a a judge himself, Lord Eldin.# Go to the top |
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