“These facts are green in the minds of you all. But there is a

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.”

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