Page images
PDF
EPUB

not accord with our own peculiar notions has the merit or misfortune of being decidedly unconstitutional. One lover of liberty sees the violation of this excellence in the too prompt interference of 102 C; another, of higher toned feeling, is shocked that the ark should be invaded in his proper person, when, in fustian phrase, he appeals to Timoleon and Thrasybulus, and wreaths his sword with shamrocks after piercing only in imagination the Saxon Hipparchus to the heart. On the other hand, the inflexible Tory deems it unconstitutional to inform the grand jury that a certain description of evidence is tainted a priori, and should sink low in the scale; and that it is no crime to struggle within the law for the repeal of a statuteeven such a vital one as the 40th of Geo. III. When the proverbial integrity and judicial intelligence of such a person as Judge Burton are thus questioned, how loud would be the accusing thunders had a less cold and calm expounder mixed up his own feelings with the charge! As to ourselves, "revolving these things in our mind," we deemed all fair. It was not a model, for it was not all perfect. In one or two passages, more careful language might have been applied. In all such grave cases, it is the earnest duty of the judge to leave nothing to the inspiration of the moment. He should weigh every word-for then, indeed, words are thingswith the most scrupulous attention. In the retirement of his study he should elaborate every phrase. For every idle word that man shall speak he will have an account to render. Judges, beyond any other class of the accountable, should remember this truth. In ordinary cases, as well as the more solemn, this caution is among the first of judicial virtues; but if ever it was necessary, it was then and there. The first impression gives a colour to all our future opinions. Here that impression was to be made. "The prize they run for was great Hector's life." Give him, at least, a fair start in the stadium of justice, and if he be outstripped in the strife, then let the Attorney-General have the honour of the prize. We blame not Judge Burton-who could? The few words to which we object, perhaps fastidiously, were delivered without the remotest tinge of ascerbity-far too calmly and dispassionately to raise a suspicion that any unfair motive lurked at the bottom. In one passage he exhibited considerable emotion. In alluding to the charge of tampering with the army, he declared it to be one of "awful importance." Here his voice faltered, and sunk below its habitual lowness, while some, of more far-reaching vision than ourselves, declared he shed tears. To him it must have been painful to attach the semblance of guilt to the conduct of one who long enjoyed his friendship and esteem at the bar; nor is it surprising that he should have felt as a man, while necessitated to do the duty of the judge. Most certainly he did not merit the censure of the Times in falling below his duty, and yielding to the intimidating pressure which, it was alleged, sullied the sacredness of our courts of justice. There was no such pressure, and, consequently, no such fear. Our courts are as free from such judicial cowardice as that standing model of welladmiinistered right, even Westminster Hall itself. We doubt not the sage-like immobility and high personal character of Chief Justice Tindal. He is a man of whom England might well be proud—who

would hold the scales with an even hand and intrepid heart in the centre of hosts armed with steel or with gold. We admire the grandeur of his intellect, and the firmness of his deportment; but he is not the sole possessor of such virtues. We, poor provincials, have had, and still have, judges as calm, pure, and impartial, as the most panegyrised of Westminster. We have had orators who were suns in eloquence compared to their dim-twinkling stars. We still have lawyers-among them Henn and Moore, whom we boldly and confidently pit against the foremost of the Hall, and have no fear of the result. Derision is a dangerous tool to meddle with. It has essentially contributed to that state of things which is now the alarm of England. Is the continuance wise?

The bill of indictment was the Behemoth of its tribe-biggest of all that prolific lawyer's brain ever created out of chaos. We have looked carefully over all the pleadings in Howell-we have roamed through miscellaneous old reports, in which were vast oceans of words to float a few half-drowned allegations-but in vain have we sought for a parallel to this huge leviathan, covering parchment "many a rood." When the Foreman received the precious deposit, all the "good men" looked incarnations of despair; but, in order to allay the consternation, an abstract was sent up, containing the charges and overt acts in petto, prepared by Mr. Brewster. Some more conscientious of the Jurors, however, insisted that Mr. B.'s compilations must lie under the table. Justice could not be safely administered by short notes-it must be as of old-"the bill, the whole bill, and nothing but the bill."

For five days, this formidable infliction on human patience was investigated, and on the sixth the jurors of "our sovereign lady the queen" appeared again in the box. In the interval, the avenues of the court were thronged with anxious multitudes, but on the day of the finding, which was generally expected, the solicitude was intense. Mr. O'Connell and his son occupied seats in the inner bar, and the former chatted very familiarly and cheerfully with all around him. He did not look in the least dejected. Counsel for the accused and the crown were all present. The judges were to a late hour engaged in chamber, and the twilight added considerably to the solemnity of the scene. Mr. Justice Burton first came on the bench. He looked towards the jury-box with an evident feeling of anxiety. When the other Judges appeared, the foreman handed in the important roll to the clerk of the crown. All conjectured the result, but there still existed that indefinable emotion which hopes for hopeless succour in the midst of inextricable danger. Mr. Bourne read out "A true bill," and a murmur ran through the court and galleries. The Attorney-General, in the most profound silence, then rose, and demanded that the fourday rule to plead should run from the finding of the indictment. This was strenuously resisted, on the rational ground that the parties should not plead until they had been charged with the bill, which was when they had been furnished with a copy, or after the indictment had been read in open court. How could they otherwise be aware of the charges to which they were to plead? The crown officers were obstinate. "Oh, very well," said the impetuous Mr. Whiteside; "and now, my lords, we stand on our strict right. Clerk of the crown!

[ocr errors]

read the indictment

and, as there are nine traversers, it must be read nine times!" Mr. Bourne had a good chance of getting through the process in forty-eight successive hours! The Chief Justice looked aghast at this frightful demand. Nine repetitions of that monster would drive Patience herself to suicide. A more gentle intercourse, on the suggestion of Judge Crampton, ensued between the parties, and it was finally agreed the rule to plead should run from the following day.

Now commenced that active war of outposts which worried the court from day to day, and stimulated public feeling to a high degree of excitement. Every new point raised filled the friends of the accused with hope and rejoicing, and one of trivial import decided in their favour was sufficient to set every mountain-top in the south in a blaze of triumph. The able counsel for Mr. O'Connell met immediately after the finding, and mapped out their operations. The plans and combinations were skilful, and well calculated to bring their clients over the dangers of the term. Let the pleadings pass into Hilary, and all was safe. But the court and Attorney-General ordained otherwise. First of all came the fair demand to compare the furnished copies with the record. Refused. They next demanded a list of the witnesses. Refused again, though the soundness of the decision is very questionable, both in law and principle. Though defeated, they were not disheartened. Of all difficult things, the most difficult is to disspirit a lawyer. Every fresh fee is a fountain of courage. Application was next made for a copy of the caption, or the formal heading of the record. Court still in the withholding mood, Judge Perrin dissenting. The first quiver was now emptied, and not a shot told. The rule to plead expired, and Mr. Attorney-General expected that the game was now fairly beyond the cover. The day was a very stirring one-standing room at a high premium. Mr. Forde, just before the close of the crown office, appeared, on behalf of Daniel O'Connell, and handed in a plea in abatement, signed "Colman Michael O'Loughlin." The souls of the crown contingent were filled with inexpressible apprehension! There was a general rush of wigs to the library, to get a glimpse of the fortunate statute on which the plea was framed-the possessor of a copy was the centre of a listening throng. With breathless speed in came Mr. Napier. He called for the 1 & 2 Vict. ch. 37. A kingdom was at stake! He devoured in silence that first section half a dozen times, and then declared there was nothing in it, though his countenance seemed to intimate a different conviction. So confounded was the Attorney-General, that his usual promptitude forsook him, and he demanded until next day to consider his course.

Hope now ran high among the friends of the traversers. On the following day the Attorney-General argued against the reception of the plea, on very narrow grounds, and was defeated-a consummation accelerated by the too smart reply of Mr. Brewster. He then demurred generally, and pettishly insisted on an immediate rejoinder, contrary to all practice. Four days more were, however, allowed, which prolonged the pleading contest to the last week of term. The validity of the plea was argued with great learning and ability by Sir Colman O'Loughlin, but the court were unanimous in disallowing it.

1

The accused were then called to plead over at once-they pleaded "Not guilty," and the Attorney-General, in the overflowing of his heart, muttered to his neighbour, "We have them at last." The following Friday he applied for a trial at bar, on the eleventh of December. He was met by Mr. Henn, in an argument of surpassing effect, which prevailed with the court. On the fifteenth of this month, the great scene of this mighty drama will be unfolded, and the man who has wielded more solid power, short of the sceptre and the crown, than any other in the history of the world, will stand at the bar! The accused is worthy of a more lofty accuser than the Attorney-General. We understand he will address the jury in his own behalf ;-then God grant Mr. Smith a happy deliverance! Let his friends pray that the thunderbolt be averted. Pity for the head on whom will fall that avenging eloquence! In the mean time, we proceed to fulfil the last and most characteristic part of our duty, which is a rough portrait of each of the eminent counsel engaged on both sides.

Mr. Henn is a vast accession to the traversers' cause. Neither ambitious of office nor fond of money, he takes no pains to bring himself prominently forward in the public eye. Many in Westminster Hall have never heard the name of Jonathan Henn, though his superior is not found in that bar, eminent as it is. When he works, he works like a master; but the occasions are rare when he chooses to sound the depths of his faculties. He would, on any spring morning, prefer the hooking of a salmon to a chancry brief. Isaac would love him, and Sir Humphrey Davy take lessons from him in the art and mystery of flyfishing. The sequestered and prolific mountain lake has more pleasures for him than the crowded court. This parenthesis will show the natural complexion of the man better than the most laboured disquisition. But we must draw him into the rough contention of the forum. Two retainers were sent to Mr. Henn, by the traversers and the crown. He accepted the first. The usual license was applied for, but delayed, the crown claiming a lien on his services. The public has a deep and incalculable interest in the independence and fearless honour of its lawyers, and Mr. Henn well maintained his title to both. He demanded that the crown should instantly make its election, either to grant or withhold the license, and in the latter event, it was rumoured that he would resign his silk gown. The license was issued after some deliberation, and the crown saved from the dishonour of such a resignation. The importance of his adhesion was not underrated, and it was to all matter of wonder that when the crown had a choice, the first did not fall upon him. Mr. Henn did not regret the neglect. He was under no obligation to the party in power. He was passed over in the distribution of paltry honours, which would add nothing to the man, but rather be dignified by his acceptance. His political principles are decided, but unostentatious and inoffensive. He would be a strength and honour to the government, not more by his distinguished abilities than the moral elevation of his character. Of all the able men for the defence, he is first in intellectual power, professional skill, and commanding authority. He is alike eminent for the soundness and general elevation of his views-the unlaboured clearness and compactness of his reasoning-and the calm but earnest

[ocr errors][merged small][merged small][ocr errors][merged small]

simplicity of his style and manner. He is collected, deliberate, consecutive, without ever sinking into tameness or swelling into extravagance. There is about him no affectation-no endeavour—n -no pretence, for true mental power is of all things the most unpretendingthe most gentle-the most able to repose on itself, and the most willing to do so. In directness of purpose and manliness of understanding he has no equals. What he says once is always well said, and never weakened by repetition. Not a word he utters is thrown away. Each has s distinct meaning and direct application. Some lawyers will seek to impress by painful reduplication. The Attorney-General will strike the same nail a dozen times, and after all perhaps not drive it home. Mr. Henn strikes once, and the object is attained. His knowledge of the law is a solid structure on a firm foundation, not a tottering erection on piles driven into the quicksands of technicality and sophistry. He resembles Mr. Moore in his abstinence from book learning, relying more on general principles than particular cases. His tact in the conduct of a cause is equal to his clear sense and strong judgment. In the great trials to come, he will rise with the occasion. The opportunity of great distinction will not be lost on him. He will swell beyond the measure of his past renown, and add to a reputation already the most distinguished.

In cross-examination he is perfect, particularly where an educated witness is to undergo the uncomfortable process of being turned inside outward. Let such a person be on his guard against Jonathan Henn. Let him be calm, collected, and, above all, truthful, otherwise he must paint his own character from his own lips. It is for this reason, as rumour goes, that the cross-examination of the chief witness for the crown will be subjected to the care of Mr. Henn. He must be a man with the nerve of Van Amburgh, and with a conscience marvellously limpid, who will come unsinged out of the terrible fire which the advocate will pile around him. Like the Hebrews of old, he may walk unharmed through the blazing furnace-Providence may manifest itself in his favour-but unless he be an exceptional case, and fortunate beyond ordinary mortals, that crossexamination will damage his moral purity. We seek not to anticipate or prejudge-we only draw an inference of what is probable from analogous circumstances. Mr. Henn will address the jury on behalf of Mr. John O'Connell. There is a weight in his style and a gravity in his manner which tell powerfully on juries. He does not bluster or play the Bobadil to coerce, or the smooth-tongued adulator to cajole into a verdict. He does not, like certain swaggerers, assault with coarse vehemence, or startle with rude remonstrance. Beginning with a winning quietness as gentle as unsuspecting, he shuffles, for some seconds, the papers which lie before him, and throws out a few cold and hesitating periods. Gradually he evolves his case, and warms as he progresses. It is not the warmth of superficial declamation, but of an intense conviction, which he assumes with the most consummate art, so as to justify the expression of Lord Erskine to one of his cotemporaries, that "a rotten cause looks more convincing in his hands, than a sound one in the hands of another." In the only great nisi prius cause in which we ever heard him, the

« PreviousContinue »