Instead of that, it was Serjeant Saunders that got maltreated: first one judge had a peck at him: then another: till they left him scarce a feather to fly with; and, when Alfred's counsel rose to reply, the judges stopped him, and the chief of the court, Alfred's postponing enemy, delivered his judgment after this fashion:
“We are all of opinion that this plea is bad in law. By the common law of England no person can be imprisoned as a lunatic unless actually insane at the time. It has been held so for centuries, and down to the last case. And wisely: for it would be most dangerous to the liberty of the subject, if a man could be imprisoned without remedy unless he could prove mala fides in the breast of the party incarcerating him. As for the statute, it does not mend the matter, but rather the reverse; for it expressly protects duly authorised persons acting under the order and certificates, and this must be construed to except from the protection of the statute the person making the order.”
The three puisne judges concurred and gave similar reasons. One of them said that if A. imprisoned B. for a felon, and B. sued him, it was no defence to say that B., in his opinion, had imitated felony. They cited Elliot v. Allen, Anderdon v. Burrows, and Lord Mansfield's judgment in a very old case, the name of which I have unfortunately forgotten.
Judgment was entered for the plaintiff; and the defendant's ingenious plea struck off the record; and Hardie v. Hardie became the leading case. But in law one party often wins the skirmish and the other the battle. The grand fight, as I have already said, was to be to-day.
But the high hopes and ardour with which the young lovers had once come into court were now worn out by the postponement swindle, and the adverse events delay had brought on them. Alfred was not there: he was being examined in the schools; and had plumply refused to leave a tribunal that named its day and kept it—for Westminster, until his counsel should have actually opened the case. He did not believe trial by jury would ever be allowed him. Julia was there, but sad and comparatively listless. One of those strange vague reports, which often herald more circumstantial accounts, had come home, whispering darkly that her father was dead, and buried on an island in the South Sea. She had kept this report from her mother, contrary to Edward's wish: but she implored him to restrain his fatal openness. In one thing both these sorely tried young people agreed, that there could be no marriage with Alfred now. But here again Julia entreated her brother not to be candid; not to tell Alfred this at present. “Oh do not go and dispirit him just now,” she said, “or he will do something rash. No, he must and shall get his first-class, and win his trial; and then you know any lady will be too proud to marry him, and, when he is married and happy, you can tell him I did all I could for him, and hunted up the witnesses, and was his loving friend, though I could not—be—his—wife.”
She could not say this without crying; but she said it for all that, and meant it too.
Besides helping Mr. Compton to get up the evidence, this true and earnest friend and lover had attended the court day after day, to watch how things were done, and, womanlike, to see what pleased and what displeased the court.
The witnesses subpoenaed on either side in Hardie v. Hardie began to arrive at ten o'clock, and a tall stately man paraded Westminster Hall, to see if Skinner came with them. All other anxieties had merged in this: for the counsel had assured him if nothing unexpected turned up, Thomas Hardie would have a verdict, or if not, the damages would be nominal.
At last the court crier cried, with a loud voice, “Hardie v. Hardie.” Julia's eyes roved very anxiously for Alfred, and up rose Mr. Garrow, and stated to the court the substance of the declaration: “To this,” he said, “three pleas have been pleaded: first, the plea of not guilty, which is a formal plea; also another plea, which has been demurred to, and struck off the record; and, lastly, that at the time of the alleged imprisonment the plaintiff was of unsound mind, and a fit person to be confined; which is the issue now to be tried.”
Mr. Garrow then sat down, very tired of this preliminary work, and wondering when he should have the luck to conduct such a case as Hardie v. Hardie; and leaned forward to be ready to prompt his senior, a portly counsel, whom Mr. Compton had retained because he was great at addressing juries, and no point of law could now arise in the Case.