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.