HOW I CROSS-EXAMINED PRINCE LOUIS NAPOLEON.
I have been often questioned in an indirect manner as to the amount of
my income and the number of my briefs. I do not mean by the Income Tax
Commissioners, but by private "authorities." I was often _told_ how
much I must be making. Sometimes it was said, "Oh, the Associates'
Office verdict books show this and that." "Why, Hawkins, you must
be making thirty thousand a year if you are making a penny. What a
hard-working man you are! How _do_ you manage to get through it?"
Well, I had no answer. It is a curious inquisitiveness which it would
do no one any good to gratify. I did not think it necessary to the
happiness of my friends that they should know, and if it would afford
_me_ any satisfaction, it was far better that they should name the
amount than I. They could exaggerate it; I had no wish to do so. It is
true enough in common language I worked hard, but working by system
made it easy. Slovenly work is always hard work; you never get through
it satisfactorily. It was by working easily that I got through so
much. "Never fret" and "_toujours pret_" were my mottoes, as I told
the chaplain; I hope he remembers them to this day. If they would not
help him to a bishopric, nothing would. But I will say seriously that
nothing is so great a help in our daily struggles as _good temper_,
and with that observation I leave my friends still to wonder how I got
through so much.
Judges often talk over their experiences at the Bar. Sometimes I
talked of mine, and on one occasion told the following curious
incident in my long career.
I mention this circumstance as a curiosity only so far as the incident
is concerned, but as more than a curiosity so far as the legality of
evading the substance of the law by a technicality is concerned.
All men are not privileged to cross-examine royalty, and especially
future emperors.
On July 1, 1847, which was not very long after my call to the Bar,
Prince Louis Napoleon, who afterwards became Emperor of the French,
was residing in England.
Of course, in looking back upon a man who afterwards became an
Emperor, the proportions seem to have altered, and he looks greater
than his figure actually was. He is more important in one's eyes, and
therefore from this point of view the event seems to be of greater
magnitude than the mere police-court business that it was. When a man
becomes great, the smallest details of his career increase in value
and importance.
The Prince had given a man of the name of Charles Pollard into custody
for stealing and obtaining by fraud two bills of exchange for £1,000
each.
I was instructed by one Saul (not of Tarsus) to defend, and old Saul
thought it would be judicious to cross-examine the Prince into a
cocked hat, little dreaming what kind of a cocked hat our opponent
would one day wear.
But Saul, not content with this ordinary drum-beating kind of Old
Bailey performance, in which there is much more alarm than harm,
instructed me to make a few inquiries as to the Prince's private life,
and so _show him up_ in public. Saul loved that kind of persecution.
To him the witness-box was a pillory, notwithstanding there was
more mud attaching to the throwers than to the mere object of their
attention.
Young as I was in my profession, I had sense enough to know that to
dip into a prosecutor's private history, and the history of his father
and grandfather, and a succession of grandmothers and aunts, was
hardly the way to show that the prisoner had not stolen that
gentleman's property, but was a good way to prevent the Prince from
recommending him to mercy.
I therefore, in my simplicity, asked old Saul what the uncle of the
Prince and his voyage in the _Bellerophon_, etc., had to do with this
man's stealing these two bills of exchange.
"Never mind, Mr. Hawkins, you do it; it has a great deal to do with
it."
However, I made up my own mind as to the course I should pursue, and
having carefully read my "instructions," found that the man had been
unjustly accused by this Napoleon--there never was a man so trampled
on--and every word of the whole accusation was false. _So_ did some
solicitors instruct young counsel in those days.
I started my business of cross-examination, accordingly, with a few
tentative questions, testing whether the ice would bear before I took
the other foot off dry land. It did not seem to be very strong, I
thought. Some of them were a little bewildering, perhaps, but that,
doubtless, was their only fault, which the Prince was desirous of
amending, and he graciously appealed to me in a very sensible manner
by suggesting that if I would put a question that he _could_ answer,
he would do so.
I thought it a fair offer, even from a Prince, if I could only trust
him. I kept my bargain, and definitely shaped my examination so that
"Yes" and "No" should be all that would be necessary.
We got on very well indeed for some little time, his answers coming
with great readiness and truth. He was perfectly straightforward, and
so was I.
"Yes, sir," "No, sir;" that was all.
As I have said, at this time I had not had much experience in
cross-examination, but I had some intuitive knowledge of the art
waiting to be developed. Napoleon gave me my first lesson in that
department.
"I am afraid, sir," said his Highness, "you have been sadly
misinstructed in this case."
"I am afraid, sir, I have," said I. "One or the other of us must be
wrong, and I am much inclined to think it's my solicitor."
It was a nice little bull, which the Prince liked apparently, for he
laughed good-humouredly, and especially when I found, as I quickly
did, that my strength was to sit still, which I also did.
I had learned by this exhibition of forces that there _was_ a defence,
if I could only keep it up my sleeve. To expose it before the
magistrate would simply enable Clarkson, who was opposed to me, to
bring up reinforcements, and knock me into a cocked hat instead of
Napoleon. Old Saul knew nothing whatever about my intended manoeuvre,
nor did Clarkson or his solicitor.
I knew the man would be committed for trial; the magistrate had
intimated as much. I therefore said nothing, except that I would
reserve my defence.
Had I said a word, Clarkson would have shaped his indictment to
meet the objection which I intended to make; the man, however, was
committed to the Old Bailey in total ignorance of what defence was to
be made.
The case was tried before Baron Alderson, as shrewd a Judge, perhaps,
as ever adorned the Bench.
When I took my point, he at once saw the difficulty Napoleon was
in--a difficulty from which no Napoleon could escape even by a _coup
d'état_.
It was, in fact, this--simple as A B C:--
When the bills of exchange were received by Pollard, although he
intended to defraud, they were _neither drawn nor accepted_, and so
were not bills of exchange at all; another process was necessary
before they could become so even in appearance, and that was forgery.
Moreover, there was included in this point another objection--namely,
that the _stamps_ signed by the Prince having been handed to him with
the intention that they _should be subsequently filled up_, they were
not _valuable securities_ (for stealing which the ill-used Pollard was
indicted) at the time they were appropriated, and could not therefore
be so treated.
In short, the legal truth was that Pollard neither stole nor obtained
either _bill of exchange_ (for such they were not at that time) or
valuable security.
Such was the law. I believe Napoleon said the devil must have made it,
or worked it into that "tam shape!"
There were many technicalities in the law of those days, and justice
was often defeated by legal quibbles. But the law was so severe in its
punishments that Justice herself often connived at its evasion. At
the present day there is a gradual tendency to make punishment more
lenient and more certain--to remove the entanglements of the pleader,
and render progress towards substantial instead of technical justice
more sure and speedy. Napoleon's defeat could not have occurred at the
present day--not, at all events, in that "tam shape."
In a case in which the member of St. Ives was petitioned against on
the ground of treating, before Lush, J., I was opposed by Russell
(afterwards Lord Chief Justice and Lord Russell of Killowen). A.L.
Smith was my junior, and I need not say he knew almost everything
there was to be known about election law. There was, however, no law
in the case. No specific act of treating was proved, but we felt that
general treating had taken place in such a wholesale manner that
our client was affected by it. So we consented to his losing
his seat--that is to say, that the election should be declared
_void_--merely void. As the other side did not seem to be aware that
this void could be filled by the member who was unseated, they did not
ask that our client should not be permitted to put up for the vacancy,
although this was the real object of my opponent's petition. He wanted
the seat for himself, but knew that he had not the remotest chance
against his unseated opponent.
His surprise, therefore, must have been as great as his chagrin when,
the very night of the decision which unseated him, he came forward
once more as a candidate. The petition had increased his popularity,
and he won the seat with the greatest ease, and without any subsequent
disturbance by the former petitioner.
I have told you of a curious trial before a Recorder of Saffron
Walden, and my memory of that event reminds me of another which took
place in that same abode of learning and justice. Joseph Brown, Q.C.,
and Thomas Chambers, Q.C., were brother Benchers of mine, and when we
met at the Parliament Chamber after dinner it was more than likely
that many stories would be told, for we often fought our battles over
again.
At the time I speak of Knox was the Recorder of that important
borough, and was possessed of all the dignity which so enhances a
great officer in the eyes of the public, whether he be the most modest
of beadles in beadledom, or the highest Recorder in Christendom. To
give himself a greater air of importance, Knox always carried a _blue
umbrella_ of a most blazing grandeur. He was looked up to, of course,
at Saffron Walden, as their greatest man, especially as he occupied
the best apartments at the chief brimstone shop in the town. When I
say _brimstone_, I mean that it seemed to be its leading article;
for there were a great many yellow placards all over and about the
emporium, which, perhaps, ought to have been called a "general shop."
There were three men up before Knox for stealing malt; a very serious
offence indeed in Saffron Walden, where malt was almost regarded as a
sacred object--until it got into the beer.
"Tom" Chambers (afterwards Recorder of London) was defending these
prisoners, and I have no doubt, from the conduct of Knox, acquired a
great deal of that discrimination of character which afterwards so
distinguished him in the City of London. The degrees of guilt in these
persons ought to be noted by all persons who hold, or hope to hold, a
judicial position. As to the first man, the actual thief, there could
be no doubt about his crime, for he was actually wheeling the two or
three shovelfuls of malt in a barrow; so there was not much use in
defending him.
About the second man there was not the same degree of certainty, for
he had never touched the malt or the barrow, and there was no evidence
that he knew the first man had stolen it. The only suspicion--for
it was nothing more--against him was that he was seen to be walking
_along the highway_ near the man who was wheeling the barrow, and as
it was daytime, many others were equally guilty.
The third man was still less implicated, for all that appeared against
him was that _at some time or other_ he had been seen, either on the
day of the theft or just before, to be in a public-house with the
thief and asking him to have a drink.
If it had not been at Saffron Walden, where they are so jealous of
their malt and such admirers of their maltsters, there would have been
no case against any one but the actual thief; and if the Recorder had
known the law as well as he knew Saffron Walden, or half as much as
Saffron Walden admired him, he would have ruled to that effect.
However, he pointed out to the jury the cases one by one with great
care and no stint of language.
"Against the first," said he, "the case is clear enough: he is
caught with the stolen goods in his possession. In the second case,
_perhaps_, it is not quite so strong, you will think; but it is
for _you_, gentlemen, not for _me_, to judge. You will not forget,
gentlemen, he was walking along by the side of the actual thief, and
it is for you to say what that means." Then, after clearing his throat
for a final effort, he said,--
"Now we come to the third man. Where was he? I must say there is a
slight difference between his case and that of the other two men, who
might be said to have been caught in the very act; but it's for _you_,
gentlemen, not for _me_. It is difficult to point out item by item,
as it were, the difference between the three cases; but you will say,
gentlemen, whether they were not all mixed up in this robbery--it's
for _you_, gentlemen, not for _me_."
The jury were not going to let off three such rogues as the Recorder
plainly thought them, and instantly returned a verdict of guilty
against all.
"I agree with the verdict," said the Recorder. "It is _a very bad
case_, and a mercantile community like Saffron Walden must be
protected against such depredators as you. No doubt there are degrees
of guilt in your several cases, but I do not think I should be doing
my duty to the public if I made any distinction in your sentences: you
must all of you undergo a term of five years' penal servitude."
Whereupon Tom Chambers was furious. Up he jumped, and said,--
"Really, sir; really--"
"Yes," said Knox, "really."
"Well, then, sir, you can't do it," said the counsel; "you cannot
give penal servitude for petty larceny. Here is the Act" (reading):
"'Unless the prisoner has been guilty of any felony before.'"
"Very well," said the Recorder; "you, Brown, the actual thief, and
you, Jones, his accessory in the very act, not having been convicted
before, I am sorry to say, cannot be sentenced to more than two years'
imprisonment with hard labour, and I reduce the sentence in your cases
to that; but as to you, Robinson, yours is a very bad case. The jury
have found that you were _mixed up_ in this robbery, and I find that
you have been convicted of stealing apples. True, it's a good many
years ago, but it brings you within the purview of the statute, and
therefore your sentence of five years will stand."