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The Heart of Mid-Lothian

Chapter I.22
Most righteous judge! a sentence.--Come, prepare.
Merchant of Venice.
It is by no means my intention to describe minutely the forms of a Scottish
criminal trial, nor am I sure that I could draw up an account so intelligible and
accurate as to abide the criticism of the gentlemen of the long robe. It is enough
to say that the jury was impanelled, and the case proceeded. The prisoner was
again required to plead to the charge, and she again replied, "Not Guilty," in the
same heart-thrilling tone as before.
The crown counsel then called two or three female witnesses, by whose
testimony it was established, that Effie's situation had been remarked by them,
that they had taxed her with the fact, and that her answers had amounted to an
angry and petulant denial of what they charged her with. But, as very frequently
happens, the declaration of the panel or accused party herself was the evidence
which bore hardest upon her case.
In the event of these tales ever finding their way across the Border, it may be
proper to apprise the southern reader that it is the practice in Scotland, on
apprehending a suspected person, to subject him to a judicial examination before
a magistrate. He is not compelled to answer any of the questions asked of him,
but may remain silent if he sees it his interest to do so. But whatever answers he
chooses to give are formally written down, and being subscribed by himself and
the magistrate, are produced against the accused in case of his being brought to
trial. It is true, that these declarations are not produced as being in themselves
evidence properly so called, but only as adminicles of testimony, tending to
corroborate what is considered as legal and proper evidence. Notwithstanding
this nice distinction, however, introduced by lawyers to reconcile this procedure
to their own general rule, that a man cannot be required to bear witness against
himself, it nevertheless usually happens that these declarations become the
means of condemning the accused, as it were, out of their own mouths. The
prisoner, upon these previous examinations, has indeed the privilege of
remaining silent if he pleases; but every man necessarily feels that a refusal to
answer natural and pertinent interrogatories, put by judicial authority, is in itself a
strong proof of guilt, and will certainly lead to his being committed to prison; and
few can renounce the hope of obtaining liberty by giving some specious account
of themselves, and showing apparent frankness in explaining their motives and
accounting for their conduct. It, therefore, seldom happens that the prisoner
refuses to give a judicial declaration, in which, nevertheless, either by letting out
too much of the truth, or by endeavouring to substitute a fictitious story, he
almost always exposes himself to suspicion and to contradictions, which weigh
heavily in the minds of the jury.
 
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