shot had been fired something had happened to press the trigger, but not to the full degree ? ' 'The cylinder had certainly been moved,' said Churchill guardedly. Hastings took care not to press the point further, not to involve himself in argument as to what that 'something' was. He relied upon the quicker-witted members of the jury ; they would not fail to realise, in present circumstances, that a struggle for the weapon, with fingers clutching at it indis- criminately, was more likely to give rise to a half pull at the trigger than anybody's genuine attempt to fire a shot. He again picked up the pistol and meditatively pressed the trigger once or twice. 'Supposing a person had got the revolver and another person came and there was a struggle, it is extremely likely that if they continued to struggle and the revolver was loaded it would go off?' 'Yes,' said Churchill. 'And it is quite impossible for anyone who was not there to know exactly how the revolver in these circumstances would go off?' 'Yes,' said Churchill. 'And if one person has the revolver in his hand and the other person seizes it and the revolver is pointing towards him, it is certain it will go off if it is pressed hard enough?' 'Yes,' said Churchill. 'And if he happened to be there, opposite the revolver, he would be certain to be killed ?' 'Yes,' said Churchill. 'Yes, he would; of course.' How exactly had they reached this situation? The witness himself might have found it hard to say. He had answered yes to a short series of questions, none of which sounded very deadly in itself and each of which hardly allowed of any other answer. And yet, at the end, he seemed to have agreed that no flaw could be pointed out in Mrs Barney's case. Or hadn't he? Anyone who shares this slightly puzzled feeling should study those four questions phrase by phrase and word by word. Their deceptive facility masks perfect craftsmanship. 15
That afternoon Mrs Barney went into the box. It is highly doubtful whether she had been able to form any clear impression of her trial or any distinct notion about how matters were going. In the first hour or so she had taken copious notes, but mainly with the object of occupying herself, and the effort of concentration soon became too great. Thereafter, most of the time, she had seemed pathetic- ally remote. Now and again a sob, immediately stifled, had shown an awareness of what was being said; she could never hear, without betraying emotion, any direct allusion to her lover's death. For the rest she had sat back in her chair, her grey eyes fixed on some point above the bench, ceaselessly twisting a handkerchief through visibly trembling hands. She had been, as many prisoners mercifully are, partially numb from suffering and anguish. But now, having taken the oath, as she turned to face the court she beheld her situation in cruelly sharpened outline. The judge, who seemed so frighteningly close; the rows of counsel in their austere black and white; her father's bowed head and her mother's piteous face upturned all were assembled on her account. She, Elvira Barney, was being tried for murder, and the punishment for murderers was death. Her nerve momentarily snapped, and absolute break- down threatened just when her life might turn upon her self-command. Perhaps this challenge, dimly apprehended, lent her strength. Perhaps she drew comfort from her famous counsel, who spoke to her with reassuring informality, put- ting questions so specific yet so simply framed that she could easily follow them notwithstanding her distress. Perhaps the instincts of a quondam actress stood her in good stead during this critical performance. Certainly she fought and overcame her panic; only the first few answers came in choking whispers; soon she was pouring out the tale of her afflic- tions in a voice not less audible for being pleasantly low- pitched. The order of her narrative imposed, of course, by Hast- tings was skilfully judged in its cumulative power. She began by describing the miseries of her marriage and the physical brutality exhibited by her husband; this might reasonably be expected to arouse in all probability for the first time in the trial a modest degree of compassion for the prisoner, and go a little way at least towards extenuation of the vicious and discreditable life she had led since. She went on to say that she had sought divorce, but she had been advised of legal difficulties,* and that she had earnestly desired to marry Michael; this put the liaison in a rather better light and made her appear less contemptuous of good morals. She explained her possession of the loaded pistol not normally a young woman's dressing-table adjunct; it had been given her several years ago by an army friend she named, from whose country house they used to go out rabbit shooting; she had always kept it with her in the cottage, which was easy game for< burglars and where she often was alone. Then Hastings guided her to the first mews episode. She told how she and Michael had quarrelled over money; how she had refused to finance his gambling; how he had walked out of the cottage but would not stay away, return- ing to create a scene in the middle of the night. 'I was so unhappy,' Mrs Barney said, 'I thought I would make him think I was going to commit suicide. So, when he was out- side, I fired the pistol at random in the room. Then I thought if he really believed I'd killed myself he'd go and fetch people, so I looked out of the window.' 'When was the bullet mark made on the bedroom wall?' Hastings asked. 'On that occasion,' answered Mrs Barney. She maintained the mastery of her rebellious nerves even when asked about the night of Michael's death. Again she * Viz., that Barney being an American, she was a domiciled American herself. went through all the agonising details, from the start of the party early in the evening to the finish of it all in the shining summer dawn. Only when she spoke of Michael's last few living moments and of the last few words that she would ever hear him say, her will-power proved insufficient to the task and a storm of weeping broke upon her unre- strained. . . . She did not give way to the same extent again, but by the day's end, after being searchingly and closely cross-examined, Mrs Barney was not far from emotional exhaustion. But there was one more unexpected test for her to undergo. 'I want the revolver,' said Hastings, 'put on the ledge of the box exactly in front of the witness.' Everyone watched the usher carry out counsel's direction. Then their eyes moved back to Mrs Barney. She was gazing down wretchedly at the source of all her griefs. Hastings faced the judge. He seemed about to address him. Suddenly, almost violently, he turned. Tick up that revolver, Mrs Barney ! ' His voice rang out, deliberately harsh. That it gave Mrs Barney a surprise and shock was manifest to all; it was beyond her meagre acting skill to simulate such a jump. She picked the pistol up at once picked it up with her right hand. There was a mighty throb in court as people realised that the first chauffeur's wife had said she fired it with her left. 16
The Crown, though, were neither disconcerted nor de- terred. Clarke, it is true, could hardly have foreseen the exact trend of events during the past two crowded days otherwise so sound an advocate would have modified his opening but he had patently not wavered in his own view of the case nor in his expectation of its outcome. All along he had shown unabated confidence, and now, winding up at the end of the second afternoon, he sounded like a man merely clinching a decision. He pointed to Mrs Barney's jealousy : 'What was more likely to make her lose control?' He pointed to the peril in which she knew she stood : 'What stronger motive could there be for colouring her story ?' And that story itself? 'It is incredible,' he said. 'If you can believe* it // you can believe it of course, members of the jury, you will be happy to acquit. But' and here the prosecutor spoke with solemn emphasis 'if you weigh the evidence carefully and dispassionately, I submit that you will find the accusation proved.' At this stage many, perhaps most, were ready to agree. I personally believe that if the verdict had been taken there and then Mrs Barney would not have been acquitted. The jury must have been keenly aware of the defence successes, so brilliantly accomplished and accented by her counsel, but the relation of these successes to each other and their impli- cation when considered as a whole were as yet almost cer- tainly beyond them. They could only be made plain by a feat of argument not of eloquence, nor imagery, nor pathos but sheer hard argument, explicit and translucent, which would convince the reason and satisfy the mind. Such a performance was forthcoming on the morrow when Patrick Hastings made his closing speech. 17 That speech contains no quotable passages of rhetoric. It will never be a feature of collections or anthologies. For per- fection of phrase and elegance of form it cannot compare with more sumptuous orations, such as that of J. P. Curran on behalf of Justice Johnson or that of John Inglis on behalf of Madeleine Smith. It was never designed nor intended so to do. It can only be judged within the context of the trial; by its aptness and response to the immediate demand; by its value in advancing the cause of the accused. The test of advocacy, in the last resort, is functional and empiric and by that test Hastings' speech for the defence of Mrs Barney will hold its own in the most exalted sphere. . . .
There were no eye-catching preliminaries; no pose adopted, no attitude struck, to mark the imminence of a big occasion. As soon as the court sat next morning he got up and began. 'Members of the jury, I shall not indulge in flights of oratory or dramatic surprises such as are supposed to be the attributes of an advocate. They may be amusing, but we are not in this court to amuse.' The note had been struck at once. As he stood facing them, almost motionless, hands clasped behind his back, he gave due notice that he meant to launch no emotional ap- peals. This was a serious matter, to be seriously considered, and not obscured by ill-timed histrionics. It was implied not more by his words than by his manner as he uttered a warn- ing preface to his theme. 'I beg of you not to be unduly influenced by that first simple story that was put before you by the Crown two days ago. We know now that a great deal of it was . . . not absolutely accurate.' There was a sharp and icy edge to this restrained impeach- ment. It cut deep into the prosecution's case as Hastings backed it straight away by factual illustration. 'Do you remember how counsel for the Crown described Mrs Barney took great trouble to describe her as a lady who lived in an extravagantly furnished flat?' Percival Clarke searched among his notes; he had indeed made use of this expression, and many of the newspapers had found it to their liking. 'An extravagantly furnished flat I wondered at the time why it was necessary to discuss the furniture. I am still wondering. I also wondered what evidence would be produced to bear out this assertion. That point, at any rate, does not remain in doubt. 'We have now heard that evidence evidence given by witnesses for the Crown. Downstairs there was a sitting- room with one or two armchairs. Upstairs there was a front room with a divan bed in it and a back room with practically nothing in it at all. That,' remarked Hastings in cool, even tones, 'was the extravagantly furnished flat in which Mrs Barney lived.' Needless to say, Clarke's blunder had been entirely inno- cent. He was probably misled at a much earlier stage when he learnt that the cottage had a fitted cocktail bar. This apparatus, though, must have enjoyed priority in the eyes of Mrs Barney and did not typify the rest of the appointments. Hastings was fully justified in emphasising this, even if, as he said himself, the point was secondary.
'But the next thing is rather more dangerous than that.' He recalled Clarke's reference to Mrs Barney's ugly be- haviour with the police, and the inference the jury had been desired to draw that such was the sort of temper she cus- tomarily exhibited upon slight provocation. What was this 'slight provocation'? Hastings asked. 'It was this: that she was a young woman, entirely by herself, without the support and comfort of her parents or her friends; that within a few yards of her lay a dead body the body of the man she ob- viously loved; that she was surrounded by a group of officers who were proposing to remove her to the station. That, says counsel for the Crown, is "slight" provocation; a "slight" strain upon the temper and the nerves. I wonder,' added Hastings, looking gravely at the jury, 'what provocation he would class as serious.'
The third and final thrust of this introductory phase had long been deferred until the appropriate hour. The Crown knew it was coming; its shadow had hung over them since early in the triaj, but there was nothing they could do to parry or prevent it. The prosecution had to sit in silence while the wound was opened with a surgeon's neatness and dispatch. 'Three separate times during the opening for the Crown you were told that Mrs Barney had said "I will shoot you." People had heard her; they would say so in the box. ... A good many people have been into the box, but not a single one has said anything of the kind.'
The prologue was over. The defender had made it clear that the Crown had overcalled their hand. Now he was to bid upon the merits of his own. 'There are cases,' he said, 'in which advocates feel in such despair that they are driven to plead for mercy for their clients and to urge that they are entitled to the benefit of the doubt.' It was rarely indeed that Patrick Hastings raised his voice. He raised it now, and the effect was all the greater. 'I am going to do nothing of the sort. I am not going to ask you for, the benefit of the doubt. I am going to satisfy you that there is no doubt. I am going to show you that there is no evidence at all.' 18 As he set out to implement his pledge he held the jury in the hollow of his hand. Just as the supremely naturalistic actor makes his audience forget that they are looking at a stage, so this supremely naturalistic advocate almost made his audience forget they were in court. They were not con- scious of listening to a speech, delivered upon a ceremonial occasion. They were engrossed in what was being said as people are engrossed in private conversation when matters of life and death are being decided. Their absorption was too complete for them to be aware of it.
The whole twelve followed in absolute surrender as Hast- ings came to deal with the earlier shooting in the mews. He first defined its precise relation to the case. 'The prosecution ask you to believe that Mrs Barney tried to murder on this previous occasion; that she shot at Michael then and that her purpose was to kill.' Three witnesses had said they heard the shot on this occasion; only one the first chauffeur's wife had said she saw it fired. Her evidence alone conflicted with Mrs Barney's description of the incident. And what exactly did her evidence amount to? How much confidence could be reposed in it? 'She says she saw Mrs Barney hold- ing something bright. You can see for yourselves this is a perfectly black revolver. She says she saw a puff of smoke after hearing the report. This revolver does not make any smoke. She says Mrs Barney held whatever it was in her left hand. You will remember that I asked her to pick up the revolver at the conclusion of her terrible ordeal here in the box. She picked it up like this with her right hand.' Dis- played in counsel's grasp, the black lustreless pistol told its own tale to the jury. 'It would be very odd indeed,' Hastings quietly commented, 'if the only time that Mrs Barney used her left hand was when it is alleged she tried to commit murder.' So swiftly and decisively was punctuated the direct, visual evidence relating to this matter the evidence of what was supposed to have been seen and done. But Hastings had not yet finished with the subject. He turned now to the indirect evidence the things that were not seen and the things that no one did. 'Supposing you had been shot at, what yould you have done? Wouldn't you have taken very quickly to your heels? Michael never budged. We have heard that he still stood about there in the mews, talking up at Mrs Barney in the window this man who, according to the Crown, stood in great and imminent danger of his life. 'Supposing you had been a witness of the scene, and you had believed this woman was trying to murder the man below what then would you have done? Something, I'll be bound. What did these people do? Nothing whatsoever. They all went back to bed, and as the police told me when I asked them yesterday not a living soul ever lodged any complaint. Can you imagine that any of them thought that the revolver had been fired out of the window? 'And if it had, wouldn't you expect to find some trace of the bullet in the mews? I asked the police about this too; you'll recollect the answer; they made a thorough search but not a sign of it was found. 'This is not surprising, for the mark of that bullet was on the bedroom wall; it showed that Mrs Barney had fired inside the room, to make this man whom she adored think she was so unhappy.' Any evidence there was against the prisoner on this inci- dent had now been torn to shreds and irremediably scattered. The Crown indeed would have had a stronger-looking case without it. They would at least have been spared the scath- ing observation with which Hastings finally dismissed this episode. 'If you think,' he said, 'that the prosecution have merely tried to bolster up their case by something of which there is no evidence at all well, then, it may help you to see with some clarity what is the real position on the charge itself.' 19 The real position on the charge itself this Hastings now proceeded to size up. He had been speaking for an hour, and the utter silence waiting on his voice was the measure of the grip that he had gained upon the court. 'Not a sound,' said that evening's paper, 'broke the steady stream of words, which seemed to hold everybody in a spell. The jury, it was noted, eagerly leaned forward.' In calmly level tones, sometimes faintly shot with irony, Hastings anatomised the night of Michael's death, scoring point after point in Mrs Barney's favour. The marks on the revolver had been too blurred for fingerprints to be de- ciphered, just as one would expect following a struggle; 'if Mrs Barney's fingerprints had been detected on it, counsel for the Crown would have said it was conclusive but is this tremendous artifice of science only to be used when it helps a prosecution?' Within a few hours of the tragedy Mrs Barney had made three separate statements to the doctor, to the police at home, to the police at the station but no question had been put to her in cross-examination suggesting that anything she had said in the statements was a lie; 'I don't think counsel for the Crown has mentioned that, so I am venturing to supplement his speech.' Everything de- noted that Michael was the object of her passionate devotion; 'in all her distress and anguish, she wanted to kiss the man who was dead.' Mrs Barney stared up at the high dome of the court. The reference had produced its invariable effect; her mouth trembled, and presently her face was stained with tears. The compact argument flowed on uninterrupted. 'Put yourself in her position. Put yourself in that box with the wardresses beside you. Suppose yourself under thorough questioning by the Crown, with the thought in your head of what each question might mean; not knowing what you were going to be asked, not knowing what construction might be placed upon your answers. Would, you give your evidence like Mrs Barney did if what you were saying wasn't true? Was she caught out anywhere? Was there any dis- crepancy between what she told you and what she told the doctor and the police? Members of the jury, was that woman lying?'