LXIX
The Case Comes Alive
The next witness was Captain Foss.
Darcy stiffened in surprise.
Foss had been clear. In writing in March, and in person to Pemberton during the preparation, and again to Pemberton in the days before trial.
He would testify, but only on condition that he not be the sole direct witness against Mr Sterling.
He would not be the lone captain in the box.
He had been required to commit too much to the undertaking already, and he had watched what had happened to men who had stood alone in such cases before.
That the search for corroboration had failed.
So, how was it that he was now walking into the box?
Darcy did not, in the first instant, know what to make of it.
Perhaps Richard had been persuasive. Perhaps Pemberton had reasoned with him in some final session Darcy had not been told of.
Perhaps the captain had simply come, in the end, to the determination that he would do the work because the work needed doing, regardless of who else stood beside him.
But he was, at this hour, too tired and too grateful to question it.
Foss gave his name, his command, his years in the trade.
He confirmed his service as master of the Mary Rose on three voyages in the period in question.
Pemberton walked him through the cargo of each voyage in the order they had sailed.
Foss answered each in turn. He named the ports of lading, the ports of discharge, the manifests as he had been required to sign them, and the cargoes as they had actually been carried.
The discrepancies were, in his testimony, plain.
Pemberton produced the manifests. The signatures on each of the three were laid before Foss.
He confirmed his own at the bottom of each.
Pemberton then produced a second set of documents from a portfolio at his elbow — the originals of Darcy’s correspondence with the shipping office over the same period, signed in Darcy’s own hand.
Foss was asked to compare them with the signatures appearing as Mr Darcy’s authorisation on each of the manifests.
Foss took both sets in his hands and held them for some seconds.
Then he said, in the steady voice of a sailor who had seen forgery in the trade for thirty years and was not particularly impressed by this example of it, that the signatures on the manifests were not the same hand as the signatures on the correspondence.
He named the differences he had noted. The forger had imitated the broad shape of the signature without troubling to imitate the pressure of the down-stroke, the particular tail of the final letter, or the small habitual flourish at the end.
He laid the two sets on the rail of the box and indicated each point in turn for the jury.
The manifests and the correspondence were passed up to the bench. The bench inspected each. The bench passed them to the jury.
Darcy permitted his eyes to lift as the captain returned to the bench beside the witnesses.
Did he dare believe it? It seemed that a small alteration had been settling over the room since Hodges had stepped down — that the case the prosecution had brought was being dismantled, in plain speech, by witnesses the prosecution could not effectively undo.
He had time, before the clerk called the next witness, to think for perhaps fifteen seconds about what it meant that Foss had appeared.
Then the clerk called the name Marsh.
Darcy did not, at first, hear it properly. He had been three hours in the dock, and the words had been arriving in him with the small delay that came of having held his own face in one position for too long. He looked up.
Marsh?
Marsh had been lost to them this entire time. He was the one witness who could speak directly to the mechanism of the fraud, and the witness Darcy had asked Webb to find first and had been told, in March, that he could not be found, and that the case would have to be built without him.
And Marsh was at this moment being called to the witness box.
For the first time since the morning, he was in real danger of breaking in the dock.
The Crown’s counsel was on his feet at once.
“My lord, this witness has not been on the prosecution’s list!
We have had no opportunity to examine the witness’s statement, no opportunity to prepare cross-examination, no opportunity to verify the circumstances under which his testimony has been procured.
The defence has provided no notice. I move that the witness be dismissed. ”
Pemberton rose. He did so with the unhurried confidence of having waited for this objection for some hours, his response ready.
“My lord, with the court’s permission. My learned friend’s objection rests upon the assumption that this witness was withheld from the prosecution’s notice through some discourtesy or stratagem of the defence.
That assumption is mistaken. The rule, as your lordship is well aware, provides that a witness whose whereabouts were unknown at the time of the filing of the case lists may be added to the calling at the court’s discretion, provided notice is given to opposing counsel on the morning of the day of his testimony.
The notice in this matter was filed with my learned friend’s chambers at half past eight this morning.
I have here the receipt, signed by his clerk.
I should be glad to lay it before the court. ”
The clerk to the court came forward and took the receipt up to the bench. The judge examined it and laid it aside.
“Furthermore, my lord, I have here a sworn affidavit from Mr Webb, presently at the bar of this court, attesting that the witness’s whereabouts had been unknown to the defence as of the week before last, and had become known to us only yesterday.
The witness was located in circumstances I am not, at this hour, at liberty to detail before the court without exposing other persons to risk, but I shall undertake to your lordship that the locating of him was conducted entirely within the proper bounds of the rule.
The witness’s statement was prepared, and the notice was filed at the earliest hour at which my learned friend’s chambers were open to receive it.
There has been no discourtesy. There has been only such promptness as the circumstances permitted. ”
Sterling’s counsel rose again. “My lord, I should be obliged if the court would consider the prejudice —”
“I shall come to the prejudice in a moment, my learned friend. My lord, in the alternative — and only in the alternative, since I do not concede that my learned friend has been prejudiced in any manner the rule contemplates — I should be willing to consent to the grant of a recess of one hour, during which my learned friend may examine the statement that has been prepared and may take such instructions from his own solicitor as he requires for the conduct of his cross-examination. I leave the matter in your lordship’s hands. ”
The judge considered. He looked at the receipt. He looked at the prosecution’s counsel.
“Do you require the recess?”
Counsel hesitated.
Darcy, watching from the dock, saw the calculation cross the man’s face.
To take the recess would be to admit before the jury that the prosecution had been caught unready.
To decline it would be to forfeit the only ground on which the witness could be challenged.
The hesitation went on several seconds longer than it should have.
“My lord, the prosecution declines the recess. The objection stands. We move that the witness be dismissed.”
“The motion is denied. Mr Pemberton, you may call your witness.”
“I am obliged, my lord. The defence calls Mr Thomas Marsh.”
Marsh was sworn.
Darcy looked, before he could stop himself, at the gallery.
Richard was at the rail above the well of the court. He had been standing at the rail since the morning recess. He met Darcy’s eye and shook his head once, very small — not me — and inclined his head, fractionally, towards the screen at the far end.
Darcy followed the gesture.
Elizabeth was leaning forward. She had her hand against her mouth, not in any showy way, but unconsciously biting the side of her lip, not wanting the court to see her doing it. Her eyes were too bright. She did not, even when Darcy’s gaze found her, look at him. She was looking at Marsh.
Darcy understood, in the space of perhaps two seconds, what he had not been told.
This was hers.
He did not know how. He could not begin to construct how.
He had been in the Tower since January and had been entirely outside the operational work of the defence, and he had been told by the earl in writing in March that the clerk was lost. Webb had given up.
There was no captain, no second witness, and no plan to recover one.
Reasonable doubt with documentation alone was the best that could be hoped for. The earl had said so.
But Marsh was in the box.
He had to look away from the gallery because if he looked at his wife for one second longer, he would weep in front of the court, and he had not yet, at three hours into a treason trial, given the room that satisfaction.
He looked at Marsh, instead.
He was a thin, worn man of perhaps thirty-five, holding himself upright with painful care. He looked at the jury once and then did not look at them again. He looked at Pemberton, at the bench, at the table in front of him.
He named names. Dates. Lodgings. Scully.
Bream. Payments. He provided evidence for the sums Mr Sterling had been realising in the period in question — not the modest pilferings of an ordinary shipping fraud, but the systematic harvesting of cargoes diverted to the French market by every route the Continental blockade had left unsealed, sums which in any single quarter exceeded what Mr Darcy was alleged by the Crown to have gained from the whole.
He named the markets at which the goods had been sold, the agents through whom payment had been laundered, and the rough percentages Mr Sterling had retained against what he had passed down the chain.
He named the manner in which Sterling had insisted the paper trail be arranged to suggest Mr Darcy’s knowledge while keeping Sterling himself far enough from execution that if one portion failed, another might still be made to hold, so that if the matter ever came to light, the prosecution would lead in one direction and Sterling would walk in the other.
He named, when Pemberton asked him to, the three occasions on which men in Mr Sterling’s pay had called at his own lodgings to frighten his family — an innocent woman and two children, which caused murmurings and head shaking in the court.
He gave the descriptions of the men who had called with such accuracy that their likenesses could be sketched in the evening’s Post. He named the threats.
Accidents to clerks in ditches. Children whose schools could be located.
A wife who could be reached at her own door, at any hour Mr Sterling chose to send a man.
It was not eloquent testimony. It was, Darcy thought, all the more terrible for being plain.
Shame came up in him in a way he had not expected.
Not shame for himself; shame for the world in which a man like Marsh, who had clearly been trying for years to be honest enough to keep his family fed, had been ground between Sterling’s machinery and his own family’s safety until the only thing left to him was to stand in a box and recite what he had been forced to do.
Pemberton produced a ledger that had previously been entered into evidence. “Do you know this writing?”
“Yes.”
“Whose is it?”
“Mr Sterling’s.”
“Have you seen him write before?”
Marsh gave Pemberton a look almost insulted by the necessity. “For three years. I stood at his elbow when he wrote that document.”
The note was passed up to the bench. The bench read it.
The bench passed it to the jury. The jury read it, one man at a time, with the slow gravity of twelve London freeholders who had understood that the case before them had just acquired a piece of evidence they would be required to account for in their verdict.
Darcy looked at Elizabeth again because he could not help it.
She was still leaning forward. She had taken her hand from her mouth and was holding her sister’s hand on one side and Georgiana’s on the other.
She was looking at him at last, now that the note had been read, and the room had learned what it meant.
He could not hold her eye for longer than the second he had given her.
He looked down at the floor of the dock.
He had not, in his entire imprisonment, been more grateful to be allowed to look at his own boots.