coincidence connected with this atrocious story and this grievous case
which is engaging your attention. The counsel for the prosecution in
both cases is identical. He stands before you framing yet another of
those objections with which he has endeavored to impede the cause of
humanity. I point my finger at him, and challenge him to deny the
truth of the statement I am making. And by a perfectly logical and
natural extension of this coincidence, the judge who sent the butler
to his doom is seated above you now in all the panoply of his office.
I leave him now if he is able to deal in a like manner with this poor
Magdalene, who may or may not have fallen by the way.”
Northcote sat down after having spoken for nearly three hours. The
December darkness had long fallen upon the court. The feeble gas-jets
seemed to enhance the shadows that they cast. The intense faces of
the overcrowded building, bar, jury, populace all electrified, seemed
to belong to so many ghosts, so pale, shining, and transfigured did
they gleam. For nearly three hours had the advocate cast his spell;
yet moment by moment, in the dominion of his voice and the cumulation
of his effects, he had increased the hold upon his hearers. At times
the tension had been so great that it had seemed that somebody must
break it with a laugh; but no one had done so. One and all were swept
forward by the contained impetuosity of the orator; by the restrained
and gentle modulations of a power that played through every word he
used; by a ferocious irony which looked like tenderness, so little did
they understand its nature; and above all by the irresistible magnetism
of a personal genius which rendered the most perilous obstacles of no
account.
None had foreseen the cruel, terrible, yet melodramatic climax to
which the advocate was leading; and when it came over the minds of
those present, all of whom in the course of the speech, even the most
hardened officers of the court, the ushers, the chaplain, the javelin
men, and the newspaper reporters, had passed in one form or another
through all the anguish of the spirit of which they were capable,
pity and horror were mingled with their overwrought surprise. As the
advocate stood with his huge and livid face turned upwards towards the
judge, with an ineffable emotion suffusing it, and the old man, with
tears dripping quickly on to his ermine, put his two fat, white hands
before his eyes, a feeling of silence and terror seemed to pervade the
court.
The advocate sat down with parched lips. The hush that ensued was so
long that it seemed it would never come to an end.
It was broken by a commotion among the public benches. A woman who had
fainted was being carried out at the back of the court. The incident
served to unloose the electricity which was pent up in the atmosphere.
A voice from the solicitor’s well was heard to pronounce the word
“Shame!” In an instant it was answered by the multitude with a volley
of the wildest cheers that was ever heard in a court of justice. All
the ragged, tattered, despised, broken and rejected units of the
population, those humble, hungry, and inarticulate creatures upon whom
Jesus himself had wrought his magic, upon whom he had depended for
countenance, took up the challenge, and with their wild and hoarse
cries flung it back upon him who had uttered it.
For a time the scene was one of consternation. The judge was but a
poor, senile, old man, from whom the tears were leaping. Every official
looked towards him for his prop and stay, but all there was to see was
feeble and inept old age. The Clerk of Arraigns, as pale as a ghost
and trembling violently, was spreading his hands before an alderman.
Policemen stood dismayed, and officers of the court, who had grown old
and despotic in its service, looked towards one another helplessly,
seeking for that authority which none had the power to exercise.
“I never thought,” said the companion of the fat barrister, “we should
come to this in England. It is a disgrace to English justice. That
fellow must be brought before the general council. They must take away
his wig and gown.”
“A little less prejudice and a little more appreciation, dear boy,”
said the fat barrister, wiping his eyes stealthily. “That lad will be a
peer of the realm long before they make you a stipendiary.”
“He is either the greatest madman or the greatest genius who was ever
called to the bar.”
“Probably both, dear boy.”
XXVIII
THE SUMMING UP
The barrister who had ventured to give a public expression to his
opinion was that nursling of wealth, the youthful ex-president of the
Oxford Union.
“You’ve done it now,” said the son of the Master of the Rolls. “They
will have in the roof. They were only waiting for a leader.”
“With all respect to your school,” said the ex-president heatedly,
“this fellow is a disgrace to it, also to his profession. It was the
act of a black-guard to throw that at the judge. He is not a gentleman.”
“Rough, of course, on the poor old judge, but he’s playing to win, as
he always did. Hullo, the poor old boy is coming up to the scratch.”
Order had been at last restored, or more correctly had restored itself;
and in thin and shaken tones the judge began his summing-up. He had
conquered his emotion, and in a perfectly simple, plain, and audible
manner he was able to give expression to that which he desired to say.
It afforded the keenest relief to the bar, which was so profoundly
jealous of professional prestige, that after all the presiding judge
should be able to reassert himself sufficiently to invest with a
certain dignity his own procedure in his own court. His words were
charged with deep feeling, but the most critical among his listeners
could discern nothing derogatory to his office in his mode of utterance.
“Gentlemen of the jury,” he began; and although the sound of his
voice was divested of that roughness and irascibility by which it was
known, it yet enchained the attention of his hearers, since intensity
of feeling had rendered it singularly harmonious, “Gentlemen of the
Jury, before I refer to the details of this terrible case I desire to
record my opinion of the manner in which it has been conducted. The
counsel for the defence is a young man, and in the nature of things
his experience in cases of this kind cannot be extensive. But I would
like to affirm that never within my own knowledge has a more remarkable
presentation of the art of advocacy come within the purview of this
court. Mr. Northcote is a young man, but the display of his genius--I
can use no smaller word--which recently he has made, is an honor to
human nature. As an old advocate, I tender my sincere congratulations
to him, and I hope that the career he has chosen to follow will in
every way be worthy of the nobility of his talent.”
A murmur of applause greeted this eulogium. It had been rendered with
such obvious feeling and delicacy that every word rang true, and
touched the chord that was dominant in the hearts of all.
“Well done, Bow-wow,” said the fat barrister, sniffing and blowing his
nose, “I trust some old pal will stand you a bottle at the Forum this
evening.”
“That is the English gentleman,” said his companion. “I expect that
young cad is feeling rather cheap just at present.”
“Expect nothing, dear boy. Who the devil are you that you should expect
anything? You could no more have saved that woman from the gallows than
you could have jumped across the moon.”
“There is a vexed point which the counsel for the defence has touched
upon,” said the learned judge, “upon which I hope I shall be excused
if I say a few words before approaching the case which occupies your
painful attention. In Crown cases it happens frequently that the
prisoner is at a serious disadvantage in the matter of representation.
Counsel of great eminence may be briefed for the prosecution, while
the defence, for whose conduct, as a general rule, very little money
is forthcoming, has not the means to secure the aid of counsel of
tried worth and experience. In theory the judge is assumed to hold a
kind of watching brief for the accused, inasmuch that it is his duty
to be alive to any loophole of escape that may present itself in the
course of the evidence, and represent that loophole to the jury. But my
experience has shown to me that that loophole is extremely unlikely to
appear where the opposing counsel are unequally matched. In theory it
is expected of the counsel for the Crown that he shall keep a perfectly
open mind and not allow his own position to sway his conduct of the
case; but a long experience has imposed the conclusion upon me that
such an impartiality as this is not practicable for an advocate who, in
the exercise of his art, is compelled by the fact that he holds a brief
to exert his talent, in spite of an unwritten law, and even in spite of
himself, to the fullest capacity on behalf of his client.
“These words, gentlemen, will not be misconstrued, I am sure. Nothing
is farther from my intention than to suggest that Crown advocates
wantonly overstep their duty or go outside their jurisdiction. But
I do suggest that they feel impelled to do their utmost for their
client, and that client is the Treasury. And having that very proper
and natural feeling in their minds it is humanly impossible for them to
approach their task of promoting a conviction in the academic spirit
which in theory is imposed upon them. Therefore you will conceive how
difficult becomes the function of a judge who is called upon in the
prisoner’s interest to hold the scales and to adjust the balance,
when there is, as occurs so frequently, a grave disparity between the
ability and the professional experience of the contending counsel. The
judge himself, gentlemen, is only human, and although his familiarity
with the procedure of a criminal trial may render him less vulnerable
to the art of a skilful advocate than those who are not so familiar
with those forms of procedure, at the same time I feel entitled to
assert that every judge must in a measure be susceptible to the manner
in which evidence is conveyed to his notice, and the manner in which it
is dissected before his eyes.
“You will forgive me, gentlemen, I hope, in making what may seem to
be a digression from this extremely painful case we are considering,
but it is a point that arises very naturally out of it. The counsel
for the defence saw fit to touch upon it in the course of his address,
and I would like to assure him and to assure you that during the
five and twenty years I have had the honor to occupy a seat on the
judicial bench, this question has seemed to me of such paramount
importance that it has been constantly before my mind. This is the last
opportunity I shall have of making a reference to it in the presence of
you gentlemen of the jury; this is the last occasion on which I shall
take my seat in this or any other court; therefore I feel a desire to
record, with whatever authority twenty-five years of public service may
confer on a mere expression of opinion, the conclusion at which I have
arrived.
“In the ears of many my conclusion will sound utopian, in many
minds it will seem to be a counsel of perfection, for it is this.
In important criminal cases it is the duty of the Crown to make
the same ample provision for the accused as it does for itself. It
should afford equal facilities to the accused person to establish his
innocence as it affords to itself to establish his guilt. After many
profound searchings of heart, more particularly upon circuit, where
cases affecting the life and liberty of the subject are so often
left entirely to the discretion of a rural practitioner, this is the
conclusion I have reached. Such a conclusion will, I fear, be taken
as a confession of weakness on the part of an individual judge. It is
a confession of weakness, gentlemen, but I do not think I shall be
contradicted when I urge that it is a confession which the strongest
and most able of my learned brethren have been called upon over and
over again in their heart of hearts to make.
“The terrible miscarriage of justice which occurred a year ago in
this court, for which I alone can accept responsibility, for which to
this present hour I have not ceased to mourn, would not have taken
place had the defence been in a position to present its testimony,
and to marshal its facts with a skill equal to that enjoyed by the
prosecution. The most material issue in the case was never presented
at all. Its existence was not even revealed. Neither the prosecuting
counsel nor the presiding judge was aware that the defence had this
implement in its possession until long after this miscarriage had
been consummated. Do not misunderstand me, gentlemen; I hold no
brief for myself; I accept the whole of the responsibility for what
took place. It was my duty to unveil that which was hidden, and to
present it adequately to the jury. I failed in that duty, because from
the beginning of the case the defence was overshadowed. The actual
murderer himself was called in evidence by the Crown; it was upon his
unshaken testimony that the verdict was rendered; but as was only
learned when too late, had one obscure question been pressed home in
cross-examination to this murderer who had perjured himself to conceal
his guilt, his testimony could not have lived five minutes in any
impartial mind, and a lamentable, a grievous miscarriage of justice
would not have stained the annals of this English justice of which very
rightly and properly we are so proud.”
Again a profound silence had descended upon the court. The painful and
close-breathing intensity with which all in that crowded assembly had
followed the prisoner’s advocate through the devious courses of his
address was now extended to the judge. There was nothing in the words
he used to call forth this hush of excited expectation, but the emotion
with which they were invested seemed to furnish them with life and
magnetism.
“All his life,” whispered the fat barrister to his friend, in a tone
of curious tenderness, “he has been a blusterer and a blunderer,
overanxious, pedantic, weak-willed, easily led, but--but his end is
glorious. This is a note he has never touched before.”
“This state defence of prisoners is so much mischievous nonsense,”
said the other almost angrily. “Where does he suppose it will land
the country? A judge has no right to advance such an opinion from the
bench.”
“Bill,” said the fat barrister, with a solemnity for which none of
his friends would have been prepared, “when you have been one of
His Majesty’s judges for twenty-five years you may not hold quite
such definite opinions. Dear old Bow-wow; all the world knows that
underneath his armor he has kept the kindest heart that ever beat, but
this is the first time he has made me feel that I wanted to blub.”
“’Pon my word, Jumbo,” said his friend, impatiently, “don’t you begin.
We have had enough mawkishness this afternoon to last us for the rest
of our lives. I expect Weekes will be falling on the neck of Topott
soon, and the clerk will be kissing the sheriff.”
“Dear old Bow-wow, dear old boy, how old he is getting. They say this
John Davis affair has cut him up dreadfully. There is not a judge on
the bench who would feel it more.”
“Probably the weakest judge who ever took his seat on the bench. What
is he maundering about now? Ah, at last he’s got to the summing-up.”
The hour was advancing, and happily the judge’s speech was not of
the length which at one time it had threatened to be. The summing-up
was short but indecisive. It was plain that the prisoner’s advocate
had done his work with the judge as well as with the jury. There was
nothing in the judge’s presentment of the evidence, which at one time
had looked so damning, to compare with the resolution and conviction
of Northcote. The magnetic splendor and brilliancy which had overcome,
one by one, the twelve good men and true in the box, had fastened also
upon this old man. His confidence was shaken, and the definite line the
counsel for the Crown had so confidently expected him to take was far
to seek.
“This is doing us no good,” grunted Mr. Weekes to his junior. By now
the leader for the Crown was in a very bad temper. His afternoon had
been wasted, he was going to be late for his dinner, and he was about
to lose a verdict upon which he had counted with certainty. “My dear
Bow-wow, you are positively maudlin. Why the deuce don’t you leave the
doubt alone and confine yourself to the evidence? There is no doubt.
There is not a leg for them to stand on.”
“There was not half a leg for them to stand on at the beginning,” said
Mr. Topott, with scrupulous modesty, “but now as the end approaches,
they appear to be standing upon two thoroughly sound ones. I think I
said at lunch I was frightened to death of that fellow.”
“Much good that did the case,” snapped Mr. Weekes.
“You were so sanguine, my dear fellow,” said Mr. Topott, with his
modesty taking an almost angelic note. He was a young man, able and
ambitious; and his private opinion of his leader was of a nature that
wild horses would not have caused him to expose. “You pooh-poohed
everybody and everything at lunch. The case was as dead as mutton;
their man was a beginner; you and Bow-wow were going to take care that
he did no harm.”
“Well, Topott, I must say you never lose an opportunity of rubbing
things in.”
“Perhaps that is so,” said Mr. Topott, dreamily. “Perhaps I am rather
good at rubbing things in. Perhaps that is my _métier_.”
“Then perhaps you will provide yourself with another. To my mind this
one is not at all amusing.”
“I suspect that is so. But now this case has gone to pot, I hope you
will not be angry, Weekes, if I inform you that the fault is not yours.
You have simply been knocked out in a fair and square battle. But I
hope you will not repine; because there is not a man in England to-day
who could have stood up against that fellow. He chose extraordinary
weapons, but they were those he knew how to use. No disgrace attaches
to you; you have taken the knock quite honestly; and if the attorney
had been here he would have had to take it too.”
“Thank you, Topott,” said Mr. Weekes, tartly; “I wish I could have your
testimonial in writing.”
“By all means,” said Mr. Topott.
“Just listen to that old fool,” said Mr. Weekes, petulantly. “Whoever
heard such rubbish as he is talking? It is time he resigned. Nobody
actually saw her put the poison in. Absence of motive. Prisoner
entitled to every doubt that may arise. Every link must be forged in
the chain of all evidence that is purely circumstantial. No credence
can be given to the testimony of half the witnesses for the Crown. My
dear Bow-wow, I really never heard such nonsense in my life.”
“An hour ago you never heard such blasphemy.”
“I would to God the attorney had held this brief!” said Mr. Weekes,
desperately.
“You may count on one thing,” said Mr. Topott; “he will never let you
hear the last of this. Won’t he chuckle? He will pull your leg about it
for the next ten years.”
“I hope you will tell him, Topott,” said Mr. Weekes anxiously, “that he
would have done no better.”
“Oh, I don’t say he would have done no better,” said the impartial Mr.
Topott. “He would have done better. He would never have let that chap
get as far as he did, even if he had had to ascend the bench and take
poor old Bow-wow by the tippet. But I do say he also would have had to
take his gruel, and he would have lost his verdict.”
“Oh, we have not lost it yet.”
“We shall have lost it in another quarter of an hour.”
XXIX
THE VERDICT
It was a quarter-past seven by the time Mr. Justice Brudenell had
concluded his summing-up. Long before he had reached the end, a
prediction of the result had formed in every mind. This case which
in the beginning had been as clear and strong as the sun at noon had
become so vitiated by contact with these legal wits, that by now even
its most salient points had become obscure. No jury in the frame of
mind of this present one, each component of which had been played upon
like the strings of a harp by the hand of a master performer, was in
the least likely to convict. There were those who even inclined to the
belief that they would not leave the box.
This, however, proved to be an extreme view. They did leave the box,
but in exactly nine minutes had returned into court. As slowly they
defiled back again into the court with their verdict, the excitement
depicted in their looks was painful to observe. Their drawn faces were
livid and perspiring; they kept down their heads without glancing to
the right or to the left. The foreman, a coal dealer in a small way of
business in the Commercial Road, was seized with a violent twitching of
the body.
“Are you agreed upon your verdict, gentlemen?” whispered the Clerk of
the Arraigns.
“We are,” said the foreman of the jury, in a voice that could hardly be
heard.
“What is your verdict, gentlemen?”
“We return a verdict of--of--”
The conclusion of the sentence seemed to die in the foreman’s throat.
“Will you please speak in such a manner that his lordship may hear
you?” said the clerk.
“We return a verdict of not guilty,” said the foreman, with his eyes
fixed on the rail before him. To the horror of many who observed him,
he appeared to trace some words upon it with his finger.
The demonstration which followed the verdict had been anticipated, and
accordingly on this occasion the officers of the court were able in
some measure to control it.
No sooner had the judge uttered a few words, which in the clamor were
inaudible, than he rose hastily from his seat. In the same instant
Northcote rose also, and that voice and presence which for so many
hours had exercised such an unquestioned sway at once detained those
who were thronging eagerly through the doors into the raw December
darkness.
“Before the court rises,” said Northcote, “I crave your lordship’s
indulgence for a brief moment.”
The judge bowed courteously and resumed his seat, a little unsteadily
as was thought by those who were near to him.
“I desire to offer to your lordship,” said the young advocate, with
a humility that was affecting, “in a public manner, an ample and an
unreserved apology for an allusion which had the misfortune to fall
from my lips. I gave utterance to it in a moment of great mental
excitement, and at that moment I did not realize, so completely was
I under the domination of the end I had in view, that in a sense
such an allusion was an indictment of your lordship and of that high
office upon which, during a quarter of a century past, your lordship
has conferred honor. I beg to be allowed to crave your lordship’s
forgiveness. Had these words not been spoken at a time when I was
overcome by the heat of advocacy, they would never have been spoken at
all.”
“Thank you, Mr. Northcote,” said the judge in a low but distinct voice.
“I understand perfectly well the circumstances in which these words
were spoken. They gave me pain, but I do not hold you blameworthy. I
viewed with keen sympathy the position in which you were placed; and I
accept without reservation the apology which with an equal absence of
reservation you have conceived it your duty to tender to me. I don’t
know whether I can be permitted to offer a suggestion in a matter
of this kind, but if, Mr. Northcote, you could see your way towards
the inclusion of your friend Mr. Weekes in this extremely honorable
_amende_--”
“I will, my lord--I do!” cried the impetuous young man, turning towards
the place of the senior counsel for the Treasury.
“I regret to say, my lord,” said Mr. Topott, rising and bowing to the
judge and to Northcote, “that my learned friend has already left the
precincts of the court; but I feel sure I am entitled to state, that
were he now present he would accept these words of Mr. Northcote in the
spirit in which they are offered.”
The judge left the bench and the court emptied rapidly. Mr. Whitcomb,
who had remained most of the day in Northcote’s vicinity, plucked him
by the sleeve as he rose and gathered his papers.
“I know now what you mean by the genie,” said he. “I shall send a wire
to Tobin at the hospital. I should like to see his face when he gets
it.”