Henry Northcote

by J. C. Snaith

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.