A POINT OF LAW
BY A CAPTIOUS LITIGANT
Given a wet night on circuit, a bar parlour with a chattering fire, a box of tobacco, a china bowl of punch, and a mixed forensic company to discuss the lot, and what odds would you lay for or against the chances of a good story or so?
Grope in your memory (before you answer) among legal collectanea and the newspaper reports of famous, or infamous, trials. What then? “Lord!” you admit, “these bones unearthed seem wretched remains indeed! I find your grooms of the horsehair, young and old, cracking their ineffable chestnuts for the benefit of an obsequious tipstavery; I find a bench so conservative that, though it be pitched in the very markets of chicanery, it is never to be won from its affected ignorance of those topical affairs which are matters, else apart, of common knowledge; I find the profession for ever given to whet its wits on a thousand examples of resourcefulness and impudence, and most often failing in the retort piquant.” Give me a cheeky witness to cap the best drollery ever uttered by counsel. Legal facetiæ, forsooth! The wit that tells is the wit that can cheat the gallows, not send to it. Any dullard can hang a dog.
Look at the autobiographies of your retired legal luminaries: what scurvy bald reading they make as a rule. Look at—but no: he rests in Abraham’s bosom; he is studying the Mosaic law; we may be in need of him again some day.
There is an odd family likeness between the personalia of lawyers and of actors. The fellows, out of court, stripped of their melodramatic trappings, can’t raise a laugh which would tickle any one less than a bishop. They are obsessed with the idea of their own importance. Much self-inflation has killed in them all sense of proportion. They prove themselves, the truth is, dull dogs on revision.
The law is not so exhausting a study as it appears on first sight to a layman. Given an understanding of its main principle, which is syllogism, and there you are already in its Holy of Holies. As, for instance, I call a man a beast: a cheetah is a beast: I have called the man a cheater—ergo, he can proceed against me for defamation. There is its rubric in a nutshell—perfectly simple.
However, exceptis excipiendis, there were Curran, and Erskine, and some others. There was also Brindley, the great Crown Prosecutor, whose eloquence was of such persuasiveness that it was said the very Bench hung upon his word. I had the chance to meet him once, in such a place and on such a night as I began by describing. It was in the “Maid’s Head” at Norwich, and my experience is at your service.
It had, I knew, been a full list and a varied; yet the great man, it seemed, had found nothing in it all to stimulate his humorous faculties. The liveliness was all supplied by a pert Deputy Clerk of the Peace, whose bump of reverence was as insignificant as his effrontery was tremendous. The Bar began by tolerating him; went on to humour his sallies; chilled presently over his presumption; grew patronizing, impatient, and at last rude. He didn’t care; nor I, certainly. His readiness was the only relief from a congested boredom.
The talk drifted, in the course of the evening, upon legal posers—circumstantial evidence, ex-statutory cases, and so forth. There were some dull examples proffered, and I observed, incidentally, that the Law, when it couldn’t hark back to precedent, was wont to grow a little hazy and befogged. Many solemn conundrums were propounded; but the Deputy Clerk, as usual, pushed himself to the front with an impertinence—
“If I slink out of the company of a bore, am I guilty of stealing from his person?”
“Pooh, pooh!” said Brindley, with contempt. “Don’t be flippant, sir.”
The Deputy Clerk was not a whit abashed.
“Sir, to you,” he said. “If that isn’t liked, I’ll propose another. If a woman is divorced from her husband, and a child is born to her before the decree is made absolute, is that child, lawfully begot, legitimate or illegitimate?”
They were glad to take this seriously. I forget what the decision was—that, given the necessary interval between the decree and its confirmation, I think, the situation was virtually impossible.
“Very well,” said the Deputy Clerk. “But perhaps one can conceive such a question rising. Let it pass, however; and answer me this, gentlemen: If one is imprisoned unjustly—that is to say, for a crime one has not committed—and, breaking out of prison, gives proof of one’s innocence, can one be indicted for prison-breaking?”
This, at least, was a fair poser, and discussion on it grew actually warm.
“Bosh!” said a fierce gentleman. “You ain’t going to justify your defiance of the law by arguing that the law is liable to make an occasional mistake—don’t tell me!”
Here a very young barrister dared the revolutionary sentiment that the law, being responsible in the first instance to itself, might be treated, if caught-stumbling in flagranti delicto, as drastically as any burglar with a pistol in his hand. He was called, almost shouted, down. The suggestion cut at the very root of jurisprudence. The law, like the king who typified it, could do no wrong; witness its time-honoured right to pardon the innocent victims of its own errors.
“It may detain and incarcerate one for being only a suspected person,” said Brindley. “That its suspicions may prove unfounded, is nothing. It must be cum privilegio, or the constitution goes. A nice thing if the Crown could be put on its defence for an error in judgment.”
“A very nice thing,” said the Deputy Clerk.
Brindley snorted at him. “Perhaps,” said he sarcastically, “the gentleman will state a case.”
The gentleman desired nothing better. I would have backed him to hold his own, anyhow; but, in this instance, I was gratified to gather from his manner that he had a real story to tell. And he had.
“Gentlemen,” he said, “it occurred within my father's memory; but my own is good enough to reproduce it literally. It made a rare stir in the Norwich of his day, and quite fluttered, I assure you, the dovecots of the profession.
“The parties chiefly concerned in it were three: old Nicholas Browbody, his ward Ellen, and Mr. George Hussey, who was put on his trial for burglary and murder. Mr. George was quite a notable cracksman in his day, which was one pretty remote from ours in everything but the conservatism of the law. He was ‘housebreaker’ in the indictment; he was arrested by the Tombland patrol; and he was carried to court in a ‘chair,’ attended by a party of the City Guard.
“George, says the story, was an elegant figure of a man, and not at all regardless of the modes. Dark blue coat with brass buttons, fancy vest, black satin breeches, white silk stockings, hair full dressed and a brooch in his bosom—that was how he appeared before his judges.
“The facts were simple enough. On a night of November, a shot and a screech had been heard in Mr. Browbody’s house in Unthank, a ward of the city; an entrance had been made through a window, opportunely open, by the Watch as opportunely handy, and the housebreaker had been discovered, a warm pistol in his hand, standing over the body of old Nicholas, who lay dead on the floor with his head blown in.
“The burglar was found standing, I say, like as in a stupor; the room was old Browbody’s study; the door from it into the passage was open, and outside was discovered the body of a girl, Miss Ellen, lying, as it were, in a dead faint. There you have the situation dashed in broad; and pretty complete, you’ll agree, for circumstantial evidence.”
“Wait, my friend,” began Brindley, putting up a fat pompous hand. “Circumstantial, I think you said?”
“Yes, I said it,” answered the Deputy Clerk coolly; “and if you’ll listen, you’ll understand—perhaps. I said the girl was in a faint, as it were, for, as a matter of fact, she never came out of it for seven months.”
He leant back, thumbing the ashes into his pipe, and took no heed while the murmurs of incredulity buzzed and died down.
“Not for seven months,” he repeated, then. “They called it a cataleptic trance, induced by fright and shock upon witnessing the deed; and they postponed the trial, waiting for this material witness to recover. But when at last the doctors certified that they could put no period to a condition which might, after all, end fatally without real consciousness ever returning, they decided to try Mr. Hussey; and he was tried and condemned to be hanged.”
“What! he made no defence?” said a junior contemptuously.
“Well, sir, can you suggest one?” asked the other civilly.
“Suicide, of course.”
“With the pistol there in the burglar’s own hand?”
“Well, he made none, you say.”
“No, I don’t say it. He declared it was ridiculous attempting a defence, while he lacked his one essential witness to confirm it. He protested only that the lady would vindicate him if she could speak.”
“O, of course!”
“Yes, of course; and of course you say it. But he spoke the truth, sir, for all that, as you’ll see.
“He was lodged in Norwich Jail, biding the finish. But, before the hangman could get him—that time, at least—he managed to break out, damaging a warder by the way. The dogs of the law were let loose, naturally; but, while they were in full cry, Mr. Hussey, if you’ll believe me, walks into a local attorney’s office with Miss Ellen on his arm.”
Brindley turned in his chair, and gave a little condescending laugh.
“Incredible, ain’t it?” said the Deputy Clerk. “But listen, now, to the affidavits of the pair, and judge for yourselves. We’ll take Miss Ellen’s first, plain as I can make it:—
“ ‘I confess,’ says she, ‘to a romantic attachment to this same picturesque magsman, Mr. Hussey. He came my way—never mind how—and I fell in love with him. He made an assignation to visit me in my guardian’s house, and I saw that a window was left open for him to enter by. My guardian had latterly been in a very odd, depressed state. I think he was troubled about business matters. On the night of the assignation, by the irony of fate, his madness came to a head. He was of such methodical habits by nature, and so unerringly punctual in his hour for going to bed, that I had not hesitated to appoint my beau to meet me in his study, which was both remotest from his bedroom, and very accessible from without. But, to my confusion and terror, I heard him on this night, instead of retiring as usual, start pacing to and fro in the parlour underneath. I listened, helpless and aghast, expecting every moment to hear him enter his study and discover my lover, who must surely by now be awaiting me there. And at length I did hear him actually cross the passage to it with hurried steps. Half demented, dreading anything and everything, I rushed down the stairs, and reached his room door just in time to see him put a pistol to his head and fire. With the flash and report, I fell as if dead, and remember nothing more till the voice of my beloved seemed to call upon me to rise from the tomb—when I opened my eyes, and saw Hussey standing above me.’
“Now for Mr. Hussey’s statement:—
“ ‘I had an assignation with a young lady,’ says he, ‘on the night of so-and-so. A window was to be left open for me in Unthank. I had no intent whatever to commit a felony. I came to appointment, and had only one moment entered when I heard rapid footsteps outside, and a man, with a desperate look on him, hurried into the room, snatched a pistol from a drawer, put it to his head, and, before I could stop him, fired. I swear that, so far from killing him, I tried to prevent him killing himself. I jumped, even as he fell, and tore the pistol from his hand. Simultaneous with his deed, I heard a scream outside. Still holding the weapon, I went to the door, and saw the form of her I had come to visit lying in that trance from which she has but now recovered. As I stood stupefied, the Watch entered and took me. From that time I knew that, lacking her evidence, it was hopeless to attempt to clear myself. After sentence I broke prison, rushed straight to her house, found her lying there, and called out upon her to wake and help me. She answered at once, stirring and coming out of her trance. I know no more than that she did; and there is the whole truth.’ ”
The Deputy Clerk stopped. No one spoke.
“Now, gentlemen,” said he, “I don’t ask you to pronounce upon those affidavits. In the upshot the law accepted them, admitting a miscarriage of justice. What I ask your verdict on is this: Could the law, after quashing its own conviction, hold the man responsible for any act committed by him during, and as the direct result of, that wrongful imprisonment?”
This started the ball, and for minutes it was tossed back and forth. Presently the tumult subsided, and Brindley spoke authoritatively for the rest—
“Certainly it could, and for any violence committed in the act. Provocation may extenuate, but it don’t justify. Prison-breaking, per se, is an offence against the law; so’s being found without any visible means of subsistence, though your pocket may just have been picked of its last penny. Any concessions in these respects would benefit the rogue without helping the community. I won’t say that if he hadn’t, by assaulting the warder, put himself out of court——”
“That was where he wanted to put himself,” interrupted the Deputy Clerk. It was certain that he was deplorably flippant.
Brindley waved the impertinence by.
“The offence was an offence in outlawry,” he said.
“But how could it be,” protested the Clerk, “since, by the law’s own admission, he was wrongfully convicted? If he hadn’t been, he couldn’t have hurt the warder. If you strike me first, mayn’t I hit you back? I tell you, the law acknowledged that it was in the wrong.”
“Not at all. It acknowledged that the man was in the right.”
“Isn’t that the same thing?”
“O, my friend! I see you haven’t got the rudiments. Hussey was a prisoner; a criminal is a prisoner; ergo, Hussey was a criminal.”
“But he was a prisoner in error!”
“And the law might very properly pardon him that; but not his violence in asserting it.”
The Deputy Clerk shrugged his shoulders hopelessly.
“Well, it was all the same in the end,” said he; “for it hanged him for pointing out its error to it, and so spoiled a very pretty romance. The lady accompanied him to the scaffold, and afterwards died mad. Sic itur ad astra. I will cap your syllogism, sir. An ass has long ears; the law has long ears; ergo, the law is an ass.”
“Young man,” said Brindley, with more good humour than I expected, “you have missed your vocation. Take my advice, and go to writing for the comic papers.”
“What!” cried the Deputy Clerk. “Haven’t I been a law reporter all my life!”