Henry Northcote

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.”