Читать книгу The Judges and the Judged - Charles Kingston - Страница 6

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If we could take a census of those whose duty it is to attend criminal trials I think that there would be a large majority in favour of the statement that the least interesting part is, invariably, the summing-up of the judge. Not that it is always his lordship’s fault—he is handicapped by having to repeat a twice-told tale—but at the same time there are very few judges who can give their charge to the jury a touch of freshness and originality. Lord Campbell took many hours to summarize the notes he made during the trial of William Palmer and bored his audience so completely that a famous barrister described the effort as resembling eternity in that it had no beginning and no end. Mr. Justice Hawkins was almost equally prolix when he summed up at the trial of the Stauntons, mumbling monotonously on until such a late hour that it was midnight before the jury returned their verdict.

“After that performance,” said a member of the Bar, who was known to be on bad terms with the judge, “death ought to have no terrors for the prisoners.”

Hawkins, however, could be brief when he considered the occasion demanded brevity.

“Gentlemen of the jury,” he said, in a larceny case, “the prisoner says he didn’t steal the candlesticks and six witnesses say he did. It is for you to decide who are the liars.”

Mr. Baron Alderson, now quite forgotten except by those who can remember with an effort that he was the father-in-law of the great Marquis of Salisbury, three times Prime Minister of England, was a Senior Wrangler and therefore something of a humorist, for it cannot be disputed that great mathematicians when they reach years of discretion usually become flippant. Alderson did not wish to gain a reputation for wit, but he could not resist temptation whenever an opportunity occurred to be witty.

He was presiding at the Northampton Assizes when a man was brought before him, charged with the theft of a pair of shoes. It was one of those obvious cases of guilt where the employment of counsel for the defence would have been sheer waste of time and money, but Alderson was anxious that the prisoner should have an opportunity of saying something in his own favour.

“Tell the jury all about it,” he said, in a kindly tone.

“Well, you see, my lord, it was like this,” said the man, redeemed from nervousness by the judge’s geniality, “I was walking past the shop when I saw the shoes and it occurred to me that I might have a bit of fun with the shopkeeper. So I waited until his back was turned and just for a joke I took the shoes.”

“Is that your defence?” asked Alderson.

“Yes, my lord, I took the shoes as a practical joke.”

“And how far did you carry them?” said his lordship benignly.

“A matter of two miles, my lord,” was the reply.

The judge turned to the jury and summed up in the following words:

“I think that is carrying a joke too far. What do you say, gentlemen?”

It was almost the shortest summing-up on record, and the jury emulated his lordship by finding the prisoner guilty in less than a couple of minutes.

That was quite a successful joke, coming as it did from one who divided judges into three classes, humorous, hanging, and judges who administered justice.

The most incompetent judge is he who early in the proceedings takes sides. It was said of a judge recently deceased that within an hour of the opening of any case however complicated he was sure to begin composing his summing-up, and the malicious reported that the blotting-pad on his desk was covered with figures before the opening speech for the prosecution ended, the figures revealing the debate in his lordship’s mind as to the number of years of penal servitude he ought to give the accused.

Once he summed up dead against the prisoner in a case of arson in Devon and was dismayed when the jury returned a verdict of not guilty.

“You have had a very narrow escape,” he said, in discharging the accused, “and I would advise you to be very careful in future, for the next jury which tries you may be composed of intelligent persons.”

I believe it was Lord Westbury who when asked his opinion of a more or less celebrated judge’s final charge to a jury declared that it was a “nagging” rather than a summing-up, and this criticism may be applied to some of the efforts of our living judges. But hammering the last few nails into the coffin of a prisoner is a task too easy to call for skill and unless there is literary ability, such as that displayed by Lord Coleridge at the trial of Dickman, the Newcastle train murderer, the summing-up is usually just as dull as it is long. Sometimes, however, a judge finds himself presiding over a trial permeated with the farcical and then he must be a dull dog not to be able to seize his chance.

Years ago there was a lawsuit in Galway which would have delighted Lord Darling. It was really an attempt to solve the still unsettled problem as to what constitutes a gentleman. There had been a race meeting in the west of Ireland and amongst the races set down for decision there was one confined to gentlemen riders, the winner of which was entitled to an ornate cup as well as certain stakes. The successful jockey was a Mr. Michael Kelly, but as the clerk of the course did not consider Mr. Kelly to be a gentleman he refused to hand over the cup and the money.

The successful jockey at once brought an action against him, and retained as counsel James Henry Monahan and William Keogh, both future judges, the former attaining the position of Lord Chief Justice.

It was a full-dress affair and, as might be expected, “loud laughter” was frequent. What is a gentleman? Mr. William Keogh cited Blackstone, the author of the famous commentaries on the laws of England, who defined a gentleman as any man who could “live idly and without manual labour, and will bear the port, charge, and countenance of a gentleman, is thereby accounted for a gentleman.”

On behalf of the defendant it was urged that as the Marchioness of Clanricarde had not called on Mr. Kelly, although she lived within a quarter of a mile of him, he could not be considered a gentleman.

“But if only those on whom the marchioness has called are to be considered gentlemen,” said Mr. Monahan, for the plaintiff, “then you will disgentlemanize nine-tenths of the county.”

The comedy became a farce when a Mr. Skerrett entered the witness-box in the capacity of authority on the subject.

“Mr. Kelly is not a gentleman,” he said, with emphasis, “because his father was not one.”

“Then if Mr. Kelly’s father was a peasant Mr. Kelly would be a peasant still no matter what amount of money or education he possessed?” asked Mr. Monahan blandly.

“Precisely,” said Mr. Skerrett confidently.

“Is a barber a gentleman?” said counsel.

“Most certainly not,” said the witness.

“Have you ever heard of Sir Edward Sugden, the present Lord High Chancellor of Ireland?” was Mr. Monahan’s next question.

“Of course I have,” said Mr. Skerrett, “I was a ward in his court before I came of age. I believe his father was a barber.”

“Then is the Lord Chancellor a gentleman?”

“Most certainly not,” exclaimed witness and the court shouted with laughter.

There were at least twenty definitions by quotation of a gentleman given during the trial, ranging from Cicero down to Tennyson, but Mr. Justice Ball, in the course of his summing-up advised the jury not to bother themselves about ancient orators or modern poets but to use their common sense and decide by the plaintiff’s personality, position and manners whether he was entitled to consider he had raised himself above the status of his father.

“I have heard curious notions expressed on this subject,” he continued, “one being that a certain person must be a gentleman because whenever he got drunk it was on port wine. In the course of my professional career I was gravely informed by a groom that his master was a gentleman because he was never convicted of any other offence than that of assaulting the police. It may be that some of you expect me to give you a definition, but if there is one thing experience has taught me it is the folly of attempting the impossible.”

The verdict of the jury was in favour of Mr. Michael Kelly, who left the court in triumphant possession of the cup and the stakes, and, more important still perhaps, the knowledge that henceforth if anyone doubted his gentility he could point to the certificate given to him by twelve of his fellow countrymen. History does not say if the Marchioness of Clanricarde called on Mr. Kelly, but the wags of the county nicknamed him “Gentleman Kelly” and such was he known to the day of his death.

The judge who explains too much is nearly as bad as the witness who talks too much, and one reason why Sir Alexander Cockburn and Lord Coleridge were so successful with juries was that they gave them credit for possessing some intelligence. Not so with a certain judge of sessions who loved to air his undigested knowledge of the law. Thus when he was trying a case of nuisance he thought fit in his summing-up to quote all the statutes and explain each one at length. Even when exhausted by his own verbosity he could not allow the jury to retire without questioning the foreman as to whether he understood the legal meaning attached to nuisance.

“Oh, yes, my lord,” the foreman answered promptly. “We all agree that we never knew before what a nuisance was until we heard your lordship’s summing-up.”

He was seen to better advantage in another case which was reduced to a wrangle between himself and counsel for the defence. The latter in his closing speech thought to avenge himself on the judge by emphasizing the fact that the members of the jury were the real arbiters and not the judge.

“Gentlemen, you are a great palladium of British liberty and to you and you alone my client looks for justice,” he declaimed. “You are his judges, and don’t forget, gentlemen, that you are continuing a system which came in with William the Conqueror.”

Judge Adams did not waste any time in summing-up and he dismissed the jury with a phrase which earned for him a reputation as a humorist until his next blunder proved that he had no sense of humour whatever.

“Gentlemen of the jury,” he said, with prim gravity, “you’ll now retire to consider your verdict and as it seems you came in with the Conqueror you may now go out with the beadle.”

We have all heard of the solicitor who wrote on the brief prepared for counsel, “There is no real defence to this action so, please, abuse the plaintiff’s attorney.” Most prisoners go into the dock guilty men and their defences are merely what may be termed taking a “sporting chance” with the jury. They know that there have been guilty men and women acquitted and they trust to being favoured with the same good fortune. “Try and laugh this case out of court,” said a solicitor, who was fighting against the overwhelming odds of his client’s obvious guilt. But the jury must have laughed last, for they sent the prisoner to penal servitude, and the disappointed solicitor—his client was a member of a wealthy and influential family—was heard to observe that the counsel he had retained might be very clever but he did not know how to make the court laugh the right way!

Humour and ridicule, however, are good weapons when there is no real practical defence. They have had their failures of course, more frequently when the presiding judge has met ridicule with sarcasm and countered humour with his wit. Mr. Justice Maule was a difficult judge to hoodwink and he was merciless in his summing-up of any case in which counsel had tried to ridicule the prosecution or avoid the point at issue. In a coining case at Maidstone he was at his best. The prisoner had been taken in the act and a plea of not guilty sounded farcical in the circumstances, but he obtained the services of one of those clever barristers who are always prominent without ever threatening to become important. Knowing that he would do more harm than good by claiming innocence for his client he concentrated on the poor quality of the counterfeits manufactured by the man in the dock, and they were certainly clumsy and crude.

“Gentlemen, I will not insult your intelligence by supposing for a moment that these wretched things would deceive you,” he said. “In fact, they are such bad imitations that they could deceive only an idiot, and we have not arrived at that stage yet when we have to legislate for the protection of idiots. I claim an acquittal for my client on the ground that as the things he made are so far removed from any likeness to real coin they cannot be deemed imitations. In the indictment it is stated that the things were intended to represent the current coin of the realm. Gentlemen, they represent nothing of the kind and therefore my client must be innocent.”

The ingenious and humorous defence might have succeeded had it not been that before the jury retired they had to listen to an address by the judge, and Maule managed in the course of ten minutes to demolish the arguments of counsel for the defence.

“Gentlemen of the jury,” he said, “it is your duty to pay every regard to the arguments of the learned counsel, but at the same time you will examine carefully what he called ‘the thing’ and ‘things’ for yourselves. I need scarcely point out that each has Her Majesty’s head on one side and the royal arms of England on the other. Counsel for the defence has said that all these might represent anything or nothing, and if you decide on examining them that they represent a box of dominoes, a milestone or a pair of snuffers, you will agree with the learned counsel’s view and acquit the prisoner. If, however, in spite of the clumsy execution you get the impression that they were intended to represent the current coin of the realm it will be your duty to disagree with counsel and convict his client.”

The jury came back in five minutes with a verdict of guilty and the coiner was sent to penal servitude for ten years.

“Never mind,” said a friend of the defeated counsel, “you can console yourself with the thought that had the counterfeits been more like the real thing he would have got twenty years.”

It was once the custom for juries to remain standing during the judge’s charge, and they suffered agonies when towards the end of a lengthy trial his lordship spoke for hours. Perhaps it is a sidelight on the respective countries that Ireland should have been the first to abolish the rule and Scotland the last. But Irish juries have always been noted for a certain complacence mingled with obstinacy.

It was an Irish judge who just about to deliver an elaborate summing-up noticed that there were only eleven men in the box.

“Where is the twelfth juror?” he asked irritably.

“Oh, that’s all right, your lordship,” said the foreman genially. “He was called away on business early this morning but he’s left his verdict with me.”