We last week presented our readers with a full[20] and, we trust, accurate account of the trial for libel, which has recently excited so much interest; and we offered some remarks of a general nature upon its result and tendency. We had purposed at the same time to subject Mr. Wakley's mode of conducting his cause to a critical investigation, but this we were prevented from doing by want of time and space. We thought it likely, too, that the Editor of the Lancet would have fairly met the question in his next publication, and himself put the facts of the case, at least, on record: instead of this, however, he has devoted his pages to compliments to himself, and scurrilous and absurd abuse of Sir James Scarlett, in which he informs us that in his opinion that gentleman is "prodigiously overrated even as a lawyer," and says many other things, which serve only to shew how dreadfully Wakley himself had smarted under his lash.
We find the general opinion to correspond with that which we expressed last week—that the defendant had managed his cause in a very bungling manner; and the estimation in which he and his witnesses were held by Judge and Jury is apparent from the charge of the one, and decision of the other. Both, indeed, regarded the asseverations of his whole family party as dust in the balance against the testimony of one single competent and honourable man—Mr. Callaway; for on his evidence the result obviously hinged. Our contemporary affects to look upon the verdict as a triumph on his part—so he would if the damages had been five hundred or a thousand pounds, for in truth he has nothing else for it; and with all our hearts we wish him many such victories.
With regard to the amount of damages, we certainly should have been better pleased had it been larger; but we did not expect that it would—nay a reference to our number which was published while the trial was going on, will shew that we were even doubtful of the verdict, because we know how extremely difficult it is for a jury to comprehend such a complicated question—how easy for a knave to impose upon their ignorance by misrepresentation and falsehood. It is quite obvious that if the jury had believed one syllable of the evidence of Wakley's witnesses, they must have given the verdict in his favour. In a case like this, where one individual only, and he the plaintiff, can be fully aware of the difficulties which had to be overcome, it is almost impossible to bring evidence into a court of justice capable of satisfying the minds of twelve unprofessional men. From this circumstance alone it was that we expressed a doubtful opinion of the result. But besides all this, it is well known to all—that one talesman might go determined to starve out the rest—that ten special jurymen might wish to give 500l. and yet that, by the absurd constitution of the English law, their verdict might be thus controlled by one individual friendly to the defendant.
Most fortunately for the cause of truth, Wakley had the vanity and folly to conduct the defence himself, and, judging of other men's estimation of moral character by his own, he did not hesitate to place in the box witnesses whom no counsel would have suffered to go there, and who, being unable to stand the cross-examination, led to what must have been to Wakley a most humiliating exposure. Next to this, the most beneficial effect produced was that of the defendant's cross-examination of his opponent's witnesses: it was amusingly absurd, and shewed a lamentable want of tact, always eliciting something which he ought to have avoided. Lastly came the reply, of which he tells us he is himself ashamed—"We may state most unfeignedly," says he, "that we look back with regret to our errors in point of omission." Nor is this the only part of it for which he has cause to blush, for any thing more miserably deficient we never heard: it was a mass of confusion throughout—a repetition of the same ideas and expressions—and a most injudicious betrayal of rancorous feeling, at the very moment he was profanely invoking heaven to witness that he bore enmity to no man. In speaking of his reply in our last number, we declared it to be "false in statement—sophistical in argument—coarse in language—and diabolical in tendency;" and we now proceed to illustrate these several qualifications, in doing which little more will be necessary than to select a few passages, and arrange them under their appropriate heads.
False in Statement.—One of Wakley's principal objects was to impress upon the Jury a belief that he had not in any way attempted to influence his witnesses, nor even spoken to most of them, anterior to the trial. "Out of nine witnesses I have placed in the box, (says he) I never saw five of them, nor even spoke to five of them till yesterday." We appeal to any man of common sense, whether it be probable that this is true. It is possible indeed, and only just possible, that he was contented with employing others to question his witnesses, and ascertain what evidence they would give; but even if it were so, the assertion was not the less false in a moral point of view, because his intention was to convey the belief that he had inquired no farther than merely whether or not the witnesses had been present at the operation. But incredible and absurd as this was, he ventured a step farther, and assigned a reason for the choice made of one witness—(Lee the potatoe-merchant.) "I had heard (said Wakley) he was present at the operation—an honest man, and that he was a friend of Mr. Bransby Cooper, under the highest obligation to the Cooper family. Without asking him a single question I put him into the box, as I was most anxious you should hear all the evidence that could be adduced, and from unsuspected and untainted quarters." This lie carried with it its own refutation; for Lee swore that he had never even spoken to Mr. Cooper; and we are therefore amazed that Wakley should have hazarded so gross an assertion, as it could only have been effective on the supposition of his addressing a jury of absolute simpletons. But again—"Who were my witnesses? not men whom I had trained and lectured on models, and sketches, and drawings. Has it been shewn to you that I was closeted with any person or set of persons?" Yes, Mr. Thomas Wakley, it has been shewn, and by no less an authority than that of your fidus Achates, Mr. James Lambert. "The defendant (says the worthy author of the libel), the defendant was there whilst I was explaining the parts to persons who were to be witnesses—the defendant also explained them to the same persons." And again, "I have heard explanations given to persons who were to be witnesses in this cause FOUR OR FIVE TIMES within the last six weeks." So also that excellent thorough-going witness, Mr. Jeffry Pearl: "a gentleman of the name of Lambert introduced me to the defendant; THE DEFENDANT and Mr. Lambert endeavoured to shew that the forceps had passed between the bladder and the rectum." So much for placing men in the box because they are friends of Mr. Cooper—so much for procuring evidence from "untainted quarters!"
This is only to be matched in effrontery by the statement of some wise-acre at the radical meeting on Tuesday night. Being asked why no notice had been taken in the Lancet of a successful operation of lithotomy performed by Mr. B. Cooper, soon after the publication of the libel, he assigned as the reason that Mr. Wakley thought it might increase the damages, and otherwise injure Mr. Cooper! What a noodle the man must be to expect any one to believe him[21]!
Mr. Wakley asserted that the evidence of his witnesses remained "untouched—wholly uncontradicted;"—whereas there was scarcely a single point in their statements which was not contradicted either by Mr. Callaway, who was present at the operation, or Mr. Key and Dr. Hodgkin, who examined the parts after death. But what is more remarkable, there was scarcely a circumstance on which his own witnesses agreed—for example, they differed with regard to the nature and direction of the incisions; with regard to the manner and frequency of introducing the forceps; with regard to the number of instruments used, and the mode of applying them; with regard to the size of the wound; with regard to the degree of force employed, and with regard to the appearances after death. Yet, in the face of all this, Wakley had the impudence to tell the jury that his evidence remained "uncontradicted." We have no hesitation in asserting that his own witnesses (putting Mr. Cooper's out of the question) advanced no charge of which they did not also furnish the refutation.
Mr. Wakley asserted that Mr. Cooper was incapable of telling why he could not extract the stone, even "while he had his finger in the bladder." This is false: neither Mr. Cooper nor Mr. Callaway were able to reach the bladder with the finger at all, owing to the depth of the perineum.
Mr. Wakley told the jury that the plaintiff did not like the bladder to be exposed, "because to surgeons there is indisputable proof that Bransby Cooper did not perform that operation as he ought," and that "Mr. Key and Mr. Callaway knew it." This is false: Mr. Key, Mr. Callaway, and Dr. Hodgkin, who had examined the parts, all deposed that there was nothing in them indicative of the operation having been improperly performed. Indeed, had it been as Wakley asserted, the plaintiff would not have been so foolish as to have had the parts preserved at all.
Sophistical in argument.—One of the pieces of sophistry on which Wakley seems chiefly to have depended, inasmuch as he went over it six times in the course of his speech, was, that if his account of the operation had been incorrect more of those who were present would have been brought forward to prove it so. But, as we stated in our last Number, to have objected to Wakley bringing forward pupils, on the ground of their being incompetent, and then to have done the same thing, would have been grossly inconsistent. Lord Tenterden, in his charge, said, "he did not see whom he (Mr. Cooper) could, with propriety, have called besides Mr. Callaway; the others were all young men, only pupils, and probably too young and inexperienced to form any judgment on the case that could be relied on." There is also another person who has objected to these witnesses whom we may mention—not, indeed, one for whose authority we have the highest possible respect, but of whom the defendant in this case probably thinks more favourably—we mean Mr. Thomas Wakley, who, speaking of the Letter formerly published by Mr. Cooper's pupils on the subject of this operation, says, "their united opinion of the skill, dexterity, and self-possession exhibited by Mr. Bransby Cooper on this occasion, is not likely to influence the judgment of the profession, whatever it may effect with the public."