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.