Part 18

“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.”

Northcote was too highly wrought to appreciate a word that was uttered by the solicitor. He could only smile and nod and wish him good night, all of which was done with incoherence and abruptness. As the young man passed out of the court, an elderly unfortunate, without any teeth, one-half of whose face had been destroyed by disease, crept from her hiding-place in a dark corner of the corridor. She grabbed the hem of Northcote’s gown and carried it to her lips.

“Gawd bless yer, guv’ner,” she mumbled, in a thick, wheezy whisper.

In the barristers’ robing-room the entrance of Northcote created a stir. Jumbo, a bencher of Northcote’s inn, and like all who are not afraid to present themselves without reserve, just as nature devised them, a man of immense popularity, hit the young advocate a blow on the shoulder.

“When can I stand you a bottle, dear boy? Fine work!”

The son of the Master of the Rolls came up.

“I say, Northcote,” he said, “you don’t remember me? I’m Hutton. I was in Foxey’s house with you at school.”

“Of course, of course,” said Northcote, hardly knowing a word that he spoke; “I remember you perfectly well. You have not altered at all.”

“You’ve not altered much, although you look awfully old and very much thinner than you used to look. I want you to mention an evening that you can come round and dine with my governor--you remember the governor I used to get ragged so tremendously for boasting about? He will be delighted to meet you. I shall tell him all about this; he is the kindest old soul.”

“Thanks, but I can’t dine with you until I’ve got my evening clothes out of pawn.”

Northcote’s schoolfellow laughed heartily.

“No, you’ve not altered,” he said. “Just the same amusing cynical old cuss you were at school--just the same cynical old cuss of whom we were so much afraid and who was so frightfully unpopular.”

“Poverty and pride were never a popular combination,” said Northcote, aroused from his preoccupation by the sympathy of one of the few who had supported him in his youth. “If I hadn’t been a bit of a football-player I don’t know what would have happened to me in those days. I used to derive pleasure, I remember, from insulting everybody.”

“Foxey used to call you Diogenes.”

“He used to say that Diogenes was considerably the pleasanter fellow of the two.”

“Poor old Foxey always feared you, I believe, just as did everybody else. You were a gloomy, dreamy sort of chap when you were not merely formidable. I remember once you were nearly superannuated. And do you remember Foxey saying there was nothing you might not do, if only you would apply your mind to it; but as it was, he was sure you would never do anything?”

“I lived in a mental fog in those days,” said Northcote, with a dreary laugh. “There was a thick vapor wrapped all round my brain. I could see and understand nothing. One fact only was borne in upon me with any sort of clearness. It was that I was vastly superior to everybody else. There never was such a colossal self-esteem.”

“Well, you certainly despised everybody in those days. And you must have gone on despising everybody to be capable of doing what you have.”

“I remember I was generally chosen to lead the scrum because I had a big voice,” said Northcote, with the light of reminiscence softening his grim mouth.