Was that woman lying? The question was not posed in
the traditional Old Bailey style of fierce defiance ('I dare
you, I challenge you, to say this woman lies ! '), but with the
quiet assurance of one who has forged a solid chain of
reasoning which will lose rather than gain from declamatory
effects. 

This was really the climax of the speech. It was the point
at which the advocate would gather himself for his touching
peroration, if touching peroration there was going to be. But
Hastings remained faithful to the undertaking with which
he had begun. Both temperament and technique caused him
to recoil from anything remotely resembling a harangue.
Nor was Mrs Barney's case one where sympathy, as such,
could readily be roused; unlike that of Madame Fahmy,
which had been heard in the selfsame court nearly nine
years before, and was now being frequently recalled and
quoted as a parallel. In each a young woman of good breed-
ing and good station was charged with murdering the man
whom she had loved. In each a revolver was the instrument
of death. In each, oddly enough, Percival Clarke was prose-
cuting counsel. But Madame Fahmy, a Parisian lady of
faultless morals and gentle disposition, had married a rich
Egyptian prince whose suave drawing-room manner con-
cealed a savage cruelty and perverted appetites; for several
years before the shooting incident in respect of which her
successful plea fused self-defence and mishap she had
patiently borne great suffering at his hands. Mrs Barney, on
the other hand, had engaged in an illicit and unsanctified
relationship with the young man she was accused of having
killed; her general standards of behaviour fell somewhat
short of strict; her disposition was volatile if it was not
violent; and any suffering there may have been she volun-
tarily endured, and in all likelihood commensurately repaid.
With an English jury the differences were radical.

Notwithstanding, it is of interest to compare Hastings'
conclusion to his speech for Mrs Barney with Marshall Hall's
conclusion to his speech for Madame Fahmy, if only as an
object lesson in contrasting advocates. 'Members of the jury,'
Marshall Hall had said, after an address in which he imitated
an oriental crouch, pointed the pistol at the faces of the jury,
and threw it on the floor with a horrifying crash, 'I want you
to open the gates where this western woman can go out, not
into the dark night of the desert, but back to her friends,
who love her in spite of her weaknesses; back to her friends,
who will be glad to receive her; back to her child, who will
be waiting for her with open arms. You will open the gate,
and' here Marshall Hall pointed to the skylight 'you will
let this woman go back into the light of God's great Western
sun.' 

It was symbolical, romantic, picturesque an unashamed
and undiluted play upon the feelings. If Hastings had de-
fended Madame Fahmy it is certain that he would have
attempted nothing of the kind. It was doubly certain in the
less propitious atmosphere of Mrs Barney's trial. Either the
jury were won over by his reasoned argument or they would
never be won over at all. Hence the simple finish to his mag-
nificent defence. 'I claim that on the evidence that has been
put before you Mrs Barney is entitled as a right to a verdict
in her favour. I ask of you, as a matter of justice, that you
should set her free.' 

On the evidence. As a right. As a matter of justice. These
and not references to suns or gates or deserts were the
demands that Hastings formulated for his weeping client. 

20 

For a brief interval after he sat down there was no sound
save that of Mrs Barney's anguish. Then, forthright in
phrase and business-like in manner, the judge embarked
upon his summing-up. . . .

On Travers Humphreys the public and the legal profes-
sion could for once agree. Both rightly considered him the
best British criminal judge of his generation. In this place of
high regard he was succeeding Horace Avory, whose last
years upon the Bench Humphreys overlapped. And, like
Avory, Humphreys had assumed judicial office admirably
equipped for the role he had to fill equipped not merely
with theoretical knowledge of criminal law, but by constant
engagement at the Bar in criminal work. As Treasury
counsel an appointment that he held for more than twenty
years Humphreys had taken part on one side or the other
in a high proportion of the epoch's best remembered cases.
In his twenties he had been concerned with the defence of
Oscar Wilde; in his thirties with the defence of Kitty Byron;
in his forties with the prosecutions of Crippen, Seddon,
Roger Casement and Brides-in-the-Bath Smith; in his fifties
with those of Horatio Bottomley and Mrs. Thompson, and
with the defences of Colonel Rutherford and the financier
Gerard Bevan. A remarkable catalogue of sensational cases,
and it is only such cases that stand out, like the visible frag-
ment of an iceberg, above the obliterating waters of remote-
ness. They act as indicator to several thousand more, now
quite forgotten and sunk beneath the surface, that combined
to produce the vast experience of the judge who, in his
middle sixties, was to try Elvira Barney. 

If Humphreys' career bore resemblance to Avory's, the
men themselves were of very different mould. Avory was
credited with a vein of callousness, a pitiless contempt for
human frailty; Humphreys was never lacking in a dis-
ciplined compassion. Avory reasoned in the abstract as if all
men were alike; Humphreys allied logic with imaginative
insight. Avory forced life into the plaster cast of law; Hum-
phreys made law serve the purposes of life. In a word, he
had that precious attribute, humanity. 

He was therefore merciful but not indulgent; understand-
ing but not sentimental. He was invariably firm, and could
be extremely stern once he had made his mind up that stern-
ness was demanded. And in making up his rriind he showed
a penetrating shrewdness, bestowed on him by nature and
sharpened to perfection by the manifold activities of his busy
life. 

Humphreys was the first man to appreciate a good point,
but he was also the last to be hoodwinked by a bad one.
Nor did he deal in compliments unless they were sincere.
That being so, the first words he uttered to the jury paid
Hastings a tribute that has seldom been surpassed. 'You
have just listened,' he said, 'to a great forensic effort. I am
not paying compliments,' went on this great veteran of so
many famous trials, 'when I say it is one of the finest
speeches that I have ever heard delivered at the Bar.' 

21

The speech, deliberately aimed not at the heart but at the
head, had indeed been of a kind to win the judge's admira-
tion. It was, he went on to impress upon the jury, 'free from
anything like an appeal to sentiment and, one should add,
of all the more assistance to you because it consisted of
careful and accurate analysis.' Moreover, before the sum-
ming-up had progressed very far it began to be apparent that
in one vital respect Humphreys himself had been convinced
by Hastings' argument or had at least been thinking along
very similar lines. He did not try to impose any opinion of
his own, holding the balance with that scrupulous pre-
cision which is the mark of judges who believe in trial by
jury. He warned them against shrinking from a disagree-
able task. 'If you are satisfied on the evidence as a whole
that it is proved that she did intentionally fire the revolver,
pointing it at the body of the man, and so caused the bullet
wound from which he died, then she is guilty of the crime
of murder, and no feeling of pity, no feeling of regret,
should deter you from the duty you are called upon to do.'
But the judge gave an indication of his personal view in a
form that almost echoed Hastings' chief contention. 'What
right have we to say her story is untrue?' he asked. 'If it is
not inconsistent with the facts that have been proved, a
rejection of it would be simply and solely on the ground that
it was told by a person under trial.' He was judge, not jury,
and took great care not to usurp the function of the latter.
None now could doubt, though, that in Humphreys's judg-
ment the prisoner's story was not demonstrably false and
unless that story was demonstrably false a conviction for
murder could only be perverse.

There remained, however, another alternative to acquittal
which had so far received no mention in the case. 'Counsel,'
observed Humphreys, 'have said nothing about man-
slaughter; on the facts there was nothing that they could
have said. It is for me to direct you on the law concerning
this. Manslaughter is the unlawful killing of another with-
out any intention of either killing or of causing serious
injury.' Having established the formal definition, he imme-
diately applied it to the case that was before them. 'It
amounts to this,' he said. 'If the prisoner threatened to
commit suicide suicide, let me remind you, is a crime and
the deceased man removed the revolver in order to prevent
it, and she, in order to carry out her intention, struggled
with him and so caused the revolver to go off, she would
then be guilty of manslaughter and answerable for that
offence at law.' 

The sting in this passage was delayed until the end, when
it suddenly dawned upon the judge's listeners that his man-
slaughter example exactly corresponded with Mrs Barney's
own account of what had taken place. . . . 

When a judge, in the rightful discharge of his office,
presents an assessment of the case for acceptance or rejection,
he is sometimes said to be summing-up for a particular
verdict. The expression is a loose one. But if one did venture
to use it in respect of a well-nigh faultless jury charge, one
would say that Humphreys summed-up for a manslaughter
decision. 

22 

That the twelve men were not in any way obliged to
follow suit had repeatedly been emphasised by the judge
himself, and the outcome of the trial still appeared entirely
open. No finding could be summarily ruled out. It was pos-
sible some believed it probable that they would convict
the prisoner of murder; public disgust at the background of
the case had been crystallised in a justifiable reference by the
judge to Mrs Barney and her lover as 'these rather worthless
people' and a jury's natural reluctance to destroy a useful
life can sometimes tip level scales in a defendant's favour. It
was possible that they would, by voluntary process, arrive at
the manslaughter verdict which the judge had mooted. It
was possible, after Hastings' great performance in the
morning, that they would do neither and instead acquit out-
right. . . . 

The jury retired at five minutes to three. Judge and
counsel also withdrew to their respective rooms. Mrs Barney
left the dock like some automaton; it required two pairs of
hands to pilot her below. The spectators remained in court,
where long-pent-up excitement at last found release in
feverish discussion. 

The sensation of suspense, greater than any crime re-
porters present could remember, intensified as the jury's
absence was prolonged. Half -past three; quarter to four;
four o'clock; a quarter past they had been conferring now
for an hour and a half. Everyone had his own views on the
delay. They could not decide between manslaughter and
murder; they could not decide whether to add a mercy rider;
they could not decide about convicting her at all. Some held
that this length of time precluded an acquittal; others that
each added minute favoured the defence; yet others that
everything presaged a disagreement. Slowly moved the clock
and fast the ferment rose. 

At a quarter to five the speculative tongues were stilled.
The jury had reappeared at the entrance to their box. 

Officials hurried in. Counsel came back, the defending
side with deeply anxious faces; according to one observer,
Hastings was 'almost haggard.' The judge resumed his seat
amid the crowded bench; close to him his clerk held the
dread black square in readiness. Last of all, the wardresses
brought up Mrs Barney ; her feet dragged so that the shuff-
ling sounded oddly through the court, and her white, mani-
cured hands clutched the dock ledge for support.

'Do you find the prisoner guilty or not guilty of wilful
murder?' 

'Not guilty,' said the foreman of the jury. 

'Do you find the prisoner guilty or not guilty of man-
slaughter?' 

'Not guilty,' said the foreman of the jury. 

The crowd heaved a great sigh; someone laughed hys-
terically. Mrs Barney cried out, 'Oh ! ' and put her handker-
chief to her mouth. Just beside the dock her mother, who
had sat there through the trial, laid her head upon her arms
and very quietly fainted. 

23 

It was a triumph, of course, but what was its especial
nature ? What were the elements that made Hastings worth
every penny of his fee which was certainly one of the
largest ever marked upon a brief to defend a charge of
murder ? 

First, the rare capacity to judge a case's impact on con-
temporary life, and thus upon the jurors empanelled to
decide it. Second, the requisite technique to act upon this
judgment in setting the tempo and the key of his perform-
ance. Third, the delicate but devastating fashion in which
he handled hostile witnesses. Fourth, the cool sense of his
realistic plea. 

These were the practical contributions of this fascinating
advocate to a result that might have easily been different.
For the student of forensic style, one point must be added. In
the Barney trial the Bar's du Maurier tackled Sir Giles
Overreach and, while strictly faithful to his own distinctive
method, showed that he could play it as well as any Kean.


					
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