As Berry and I Were Saying

by Dornford Yates

  “Stinie Morrison’s counsel took no such care. He went all out for one of the CID. This was jam for the Crown; and as soon as Rose sat down, Treasury Counsel rose and asked the Judge’s permission to prove the prisoner’s previous convictions there and then. This, as a matter of form, for he had the clear right. Darling nodded assent, and the three convictions were proved.”

  “Incredible,” said Berry. “I mean, even I knew that.”

  “So, I confess, I found it, for Rose was an old hand: and, hopeless lawyer as he was, I never could have believed he would make so elementary a mistake. But it was pure ignorance. While he was attacking the policeman, his junior kept pulling his gown. At last Rose turned. ‘What the devil d’you want?’ he spat. ‘Man alive, you’ve let his convictions in.’ ‘Good God, have I?’ says Rose. ‘Well, why on earth didn’t you stop me?’ A man who was sitting behind him told me that.

  “That was virtually the end of the case. I mean, juries aren’t fools. So Morrison was found guilty, and Darling sentenced him to death. A week or so later, to everybody’s amazement, the Home Secretary commuted the sentence to one of penal servitude for life. No one could understand this, for Morrison was a monster and quite unfit to live.

  “I cannot remember who told me what had happened and so I cannot vouch for its truth. But Darling tried the case, and I was so familiar with Darling’s outlook that I’ve never had any doubt that my informant was right.

  “When a man is sentenced to death, the Judge who presided at his trial always sends to the Home Secretary his own observations regarding the merits of the case. In this case Darling did so in the usual way. He certainly made it quite clear that there had been no miscarriage of justice and that Stinie Morrison richly deserved to die. But, having a cold contempt for any counsel of experience who could make a mistake which no articled clerk would have made, he added something like this. ‘At the same time I venture to doubt whether this man would in fact have been convicted, but for the inexcusable incompetence of the member of the Bar whom the prisoner’s friends had instructed – and, probably, handsomely paid – to save his life.’

  “The Home Secretary of the day was a very foolish man, and, ignoring the fact that Morrison had been rightly convicted, decided that it was unfair that, because he had been badly defended, the convict should forfeit his life.

  “To Darling’s horror, therefore, Morrison was reprieved. As a convict, he gave much trouble, but I’m honestly glad to report that he didn’t live very long.

  “Let me say once again that I cannot declare that that is the true explanation of what occurred. But it is, to me, a very reasonable explanation of the most surprising – not to say, most improper reprieve that was ever granted.”

  “When you say it’s a reasonable explanation, you mean that it is exactly what you would have expected of the personalities concerned?”

  “Yes. The only chance which Darling had of chastising the thieves’ lawyer was in his report to the Home Secretary. And the man deserved to be chastised. I simply cannot see Darling failing to seize such an opportunity. I mean he was very hot on incompetence in a member of the Bar, when incompetence should not have been displayed. Before Horace Avory was appointed to the Bench, he was appointed Commissioner of Assize. That is to say, a Judge fell sick or something, and Avory was sent down to take his place. Such an appointment, which is purely temporary, sometimes precedes a Judgeship. When, as Commissioner, he was trying some case, he made an elementary mistake. The man he was trying was convicted – and immediately appealed. When his case came to be heard by the Court of Criminal Appeal, Darling was a member of the Court. He was, I think, presiding, because the Lord Chief was away. Anyway he gave judgment, very properly quashing the conviction, because of Avory’s mistake. And in the course of his judgment he said, ‘A man might be pardoned for thinking that the learned Commissioner had looked at the wrong page of Archbold’ – that is to say, the Bible of the Criminal Bar. That, of course, was scathing. About a month later Avory was made a Judge. The appointment, no doubt, had been made before the mistake.

  “Everyone thought the appointment a bad one, partly, no doubt, because Avory was by no means popular. And as Senior Treasury Counsel, he used to press his cases, which nobody liked, which, in fact, he should not have done. He was appointed at the same time as Eldon Bankes, who was very much liked. And everyone considered that his appointment was as good as that of Avory was bad. I saw them walk in procession through the great hall on the first occasion on which they wore the scarlet and ermine. They were side by side. And Bankes was loudly applauded. He never bowed once, but Avory bowed right and left.”

  “Poor man,” said Daphne.

  “It didn’t matter,” said I. “Nobody undeceived him. What is so curious is that Avory made a very much better Judge than Bankes did. That Bankes had a pleasant manner with juries was – unfortunate. I mean, they ate out of his hand. And if juries will eat out of a certain Judge’s hand, then, if justice is to be done, that Judge has got to be a most exceptional man; for, though the jury is present, he’s really deciding the case. And Bankes was by no means a most exceptional man. (I don’t suggest he resembled Weston Gale; but Gale was a fool. In two cases within my own knowledge, entirely thanks to his folly, gross injustice was done.) Avory, on the other hand, went from strength to strength. He wasn’t anything to write home about in the Civil Courts, but he became an excellent criminal Judge. And he matured. The older he grew, the better he got. I can’t remember who was the Lord Chief Justice, when Avory died in harness: but I remember that he made a public statement which was quite unworthy of any thinking man. ‘We shall as soon see another William Shakespeare as another Horace Avory.’ That is, of course – and I say it without respect – arrant rubbish. In the first place, I could name off-hand half a dozen Judges of Avory’s day, all of whom were unquestionably better Judges than Avory ever was.”

  “Do it, please,” said Berry.

  “Alverstone, Darling, Channell, Rowlatt, Scrutton and Warrington. In the second place, the linking of the two names suggests a comparison which is so fantastic as to be indecent. It would be far less preposterous to compare Edgar Wallace with Julius Caesar. But Avory fully justified his appointment to the Bench.”

  “O-oh,” cried Jill. “Do you remember when you were asked to lecture?”

  “Yes,” said I. “But there’s nothing doing.”

  “This,” said Berry, “is a new one on me. What happened?”

  “Well they wanted Boy to lecture out here – on English Literature. And Boy said No, he wasn’t qualified. So they said, Well So-and-So lectured last week. So Boy thought, Well, if So-and-So can, I can. And he said, What did he say? And they said, Oh, he was most interesting. He completely debunked Shakespeare. He showed what a plagiarist and what a charlatan he was. So Boy said, Well, if you liked him, I’m afraid you wouldn’t like me. And no man can debunk Shakespeare. You might as well try and fill in The Caspian Sea.”

  “What was his name?” said Berry, speaking between his teeth. “I demand his name, that I may load him with everlasting contumely. Debunking the Swan of Avon in a foreign field! Seeking the spittle Notoriety even in the sewer’s mouth!”

  “That’s more than enough,” said I. “We’ll leave it there. Besides, I want to add something to what I said just now.

  “A few moments ago, I said that Weston Gale made a bad Queen’s Bench Judge, because he was a fool. That is a strong thing to say, unless I adduce some evidence which, submitted to the average man, will prove my case. This, I propose to do. I referred to two cases ‘within my knowledge’. I think I should set one of them out.

  “Not long before the first war, the mother of a well-known lady of title determined to give her daughter a run-about car. Neither mother nor daughter had any money to spare. But the mother, who loved her daughter, knew very well that a little run-about car was what she most desired. She could not afford to pay more than a hundred pounds, but she went to a dealer she had heard of and aske
d him to fix her up. And please remember that before the first great war one hundred pounds was exactly one hundred pounds…one hundred golden sovereigns, if you like to put it that way.

  “Well, the dealer fixed her up, as dealers will. He sold her a second-hand car which was worth about fourteen pounds, took her cheque for a hundred and then delivered the car to her daughter’s address. The daughter, who knew something of cars, perceived what had happened and told her mother the truth. Her indignant parent demanded her money back. The dealer refused to refund it, and an action was brought.

  “The head of my Chambers was briefed, and I went to Court with him, to help and to take the note. The case came before Gale.

  “While Harker was opening the case, which he always did very well, Gale looked down from the Bench.

  “‘One moment,’ he said, smiling. ‘Are you going to tell the Court that the plaintiff really believed that she could purchase a car for one hundred pounds?’

  “Harker looked up at him – dazedly.

  “‘I am, my lord,’ he said.

  “‘What, a thing that moved?’ says Gale.

  “‘Certainly, my lord. And I am going to suggest that it was a perfectly reasonable belief. I am going to prove, my lord, that one hundred pounds is a very respectable price for a small, second-hand car.’

  “Gale turned and smiled at the jury. Still smiling at them, he replied.

  “‘All right,’ he said. ‘Go on. Of course some people will believe anything.’

  “The jury smiled back at him, and Harker and I looked at one another in dismay.

  “The thing was incredible – like Alice in Wonderland. We had often heard of ‘judicial ignorance’, but this was beyond a joke. There were then upon the British market at least half a dozen cars, listed at between one hundred and one hundred and fifteen pounds – NEW. For one hundred and thirty-five pounds, you could buy a BRAND-NEW twenty-horse-power Ford. (That was the famous ‘Tin Lizzie’, still to be seen on the roads in twenty years’ time.) And this damned fool of a Judge was as good as telling the jury that anyone who was such a fool as to think they could buy a second-hand car for a hundred pounds deserved what she got. And the jury was accepting this doctrine. The nice old gentleman knew and was putting them wise. But, you see, the nice old gentleman lived in Belgrave Square and the only cars he knew cost three thousand pounds apiece. That there might be cheaper makes never entered his head.

  “We brought our experts, but he laughed the case out of court. And the jury laughed with him. He was the wiseacre. He knew. He really thought he did. His complacency was invulnerable. He was sorry for us, with our hundred-pound second-hand car. But there you were. A fool and his money were soon parted. So long as there really were people who liked to think… He smiled at the jury, and the jury smiled back. He rammed home the truth that a little knowledge is a dangerous thing. He spoke of sadder and wiser women…”

  “Oh, I can’t bear it,” screamed Berry.

  “I had to bear it,” said I. “And Harker, too. And I tell you, it shortened my life. But hear me out.

  “…who would come to realize that cars that could move and have their being were not to be purchased for the sum of one hundred pounds. And while he was talking this slush, brand-new Fords were being driven up Fleet Street, a hundred paces away. And the price which their owners had paid was one hundred and thirty-five pounds.

  “The jury didn’t even retire. They found for the defendant without leaving the box.

  “The plaintiff refused to appeal. For all she knew, there were other Judges like that. In fact, there weren’t, but she had had enough of the Royal Courts of Justice. And I’m damned if I blame her.

  “Well, there you are. That is exactly what happened, from first to last. And in view of that reminiscence, I think I’ve the right to say that Gale was a fool.”

  “One moment,” said Berry. “You spoke of another case.”

  “I know,” said I. “But I can’t remember the facts. I think it was a running-down case, and a bus was involved. But exactly the same thing happened. I ran into Harry Dickens, the son of the Common Serjeant. I knew him quite well. He’d just lost the case before Gale and tears of impotent rage were running upon his cheeks. He was so mad with the Judge he could hardly talk straight. I remember his catching my arm and crying, ‘What about that?’”

  “There are men,” said Berry, “who can suffer fools gladly. I’ve always envied them. I knew one once. The bigger the fool, the more he enjoyed his pranks. To watch a fool in his folly was meat and drink to him. But I am not like that. The fool, who has no excuse, I have always found provoking. And when I am at his mercy, it sends the blood to my head. My God, who’d go to law?”

  “Except in the last resort – only a fool.”

  “I’m sure you’ll forgive me for saying that I don’t remember a Judge called Weston Gale.”

  “Neither,” I said, “do I. Nor does anyone else. In this particular case, I’ve used a pseudonym.”

  “Which is considerably more,” said Berry, “than his memory deserves.”

  “There is,” said Daphne, “a lot of The Law in your books.”

  “I’m afraid there is. I’m half a lawyer, you know, and it seems to creep in.”

  “It may be dull,” said Berry: “but at least it’s accurate.”

  “If it wasn’t,” said I, “I should deserve to be flogged.”

  “I was always sorry,” said Jill, “that you didn’t unmask Rowena in open Court.”

  “Let me confess,” said I, “that it would have been more dramatic. Unfortunately, it would not have been true to life. Except in plays or novels, no villain is ever unmasked in open Court. It’s always behind the scenes that he gets it between the eyes.”

  “I seem to remember,” said Berry, “an occasion in one of your books – a rather famous occasion, if I may go so far.”

  “You mean Mr Bladder? Yes. You have me there. In my defence, let me say that nobody dreamed that the chauffeur would not come up to his proof. Nor did the chauffeur himself, till he saw me in court. So it couldn’t have happened ‘off’.”

  “I accept that plea. The case was exceptional. Do witnesses often fail to come up to their proofs?”

  “Not very often. In that case the witness went right back on his proof, and that, I must confess, I have never seen, although it has actually happened in many a case. Usually, when they’ve been got at. A curious thing happened once. When I was a solicitor’s pupil, I was sent up to the Old Bailey, to manage an important case. We had instructed Bodkin to appear for the Crown, and, though I didn’t do badly, I fear he felt that I was rather too young. (That was the first time I met him. I got to know him much better later on and I have much to thank him for. He was a very good lawyer and he had a delightful wit. He was easily the best Treasury Counsel of my day and I shall always maintain that he should have been made a Judge. He would have adorned the Bench, which is more than some Judges do.) Well, our case had been closed just before luncheon on, I think, the second day. Before the Recorder came back—”

  “The Recorder,” said Daphne. “That’s a new one on me.”

  “The Recorder of London, my darling. A very coveted post. He has the status of a Queen’s Bench Judge, but he sits only at The Old Bailey. Sir Forest Fulton was the Recorder of my day. He was quite good on the Bench, but he liked a long luncheon interval. I always remember that – I may say, with gratitude. I liked a long luncheon interval, too.

  “Well, as I was saying, before the Recorder came back, Bodkin sent for me. ‘I want to recall one witness, for I have a question to ask.’ He told me which witness it was. ‘Have him all ready, please.’ ‘I’ll have him all ready,’ I said. ‘May I know what you want to ask him?’ ‘No.’ Had I been more experienced, Bodkin would not have said that. I was at once uneasy, for I knew the case backwards, though he didn’t know that I did: and I couldn’t imagine what question he was going to ask.”

  “Why wouldn’t he tell you?” said Daphne.
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  “I suppose he was afraid that I might put the answer into the witness’ mouth. That I would never have done. But to recall a witness for one question only, after your case has been closed, means that you are going to focus a powerful beam of attention upon the question you ask. And I felt that, before he asked it, I ought to know what it was. However, there was nothing to be done.

  “The Recorder took his seat. Bodkin applied for permission to call the witness back. The Recorder gave it, and I brought the witness in. He went into the box, and Bodkin rose. Then he asked his question. The answer he expected was, ‘Never’. The answer he got was, ‘Frequently’.”

  “Oh, my God,” said Berry.

  “Yes, it was a fair knock-out. And it couldn’t be covered up. Bodkin could only sit down. And the defence were thrilled. It certainly hit us hard, though we just got home. It wasn’t Bodkin’s fault, for there was a mistake in the brief though not in the witness’ proof. But if only he’d told me the question which he was going to put…”

  “What would you have done?”

  “I should have said, ‘But that’s wrong. The witness won’t say that.’ And if Bodkin had insisted, I should have asked the witness before he came into court. Bodkin, of course, was wild: but he was a just man and he didn’t take it out upon me.”

  “Did you get many letters about This Publican?”

  “He got a lot of rude ones,” said Berry.

  “Indeed, I didn’t,” said I. “I never got one. As a matter of hard fact, I’ve only had about four in forty years. I’ve had some criticism, of course – nearly always very pleasantly made. Once or twice it’s been of very great value.”

  “Only once or twice?”

  “Yes. The other has been – well, curious. One fellow, who said he was a consulting physician, who had read Perishable Goods, took the trouble to advise me to consult a doctor before I again described the condition of a dying man. (I need hardly say that I had taken that precaution.) ‘You see,’ he added, ‘a man in Mansel’s condition could not have a rapid pulse: he would have a very slow one.’ In my reply, I pointed out that not only had I not said that Mansel had a rapid pulse, but that the word ‘pulse’ did not appear in the book. Another wrote at some length, about Lower Than Vermin – saying that ladies of Scottish descent did not refer to themselves as ‘Scotch girls’. He added that he had learned this truth at his mother’s knee. In my reply, I pointed out that nowhere in Lower Than Vermin had Ildico been described as a ‘Scotch girl’ either by herself or by anyone else. In each case, they had simply got their facts wrong.”