Breaths of Suspicion

by Roy Lewis

  I tried to impress upon him that a sentence of death from Lord Chief Justice Campbell was a racing certainty, if the jury found him guilty. Bernard seemed unmoved: he merely shrugged, raised his eyebrows and said, ‘If I’m to be hanged, I must be hanged.’

  But I knew we had a chance. The Crown prosecution had indicted him for murder but the Act under which he was charged spoke of deeds ‘committed within the Queen’s Peace’. The point was, Bernard’s actions had caused deaths not in England, but in Paris, where the Queen’s writ did not run. He was also charged with being an accessory to murder—but if the killing itself was not murder in England, how could he be regarded as an accessory to murder?

  And in their rush to indict Bernard the Crown prosecutors had overlooked another problem. Neither Bernard nor Orsini were subjects of the Queen … so could proceedings properly lie against Simon Bernard, a foreigner, in English court of law?

  These were nice points and I was determined to raise them, but more important in my view was the background to the hearing, the fragile relationship between the French and British Government and, not least of all, the general view held by the public. It was one of Francophobia. It was the view held by the rabble. And I knew I was perhaps the most effective rabble-rouser in the business, when it came to tapping into the public sentiment.

  So my actions were planned carefully and deliberate in their aim.

  When the trial opened at the Old Bailey it was among scenes reminiscent of the Palmer hearing, not least because I had taken the trouble to quietly leak to certain members of the press that this trial was not a simple one of murder, but a case involving the basic right of every Englishman to be free from the political pressure of foreign princes.

  You liked that phrase, didn’t you? I saw your eyes light up! They liked it in America too: President Lincoln himself mentioned it to me with approval when he welcomed me at a soirée at the White House in 1861.

  So, when Dr Bernard stood in the dock in front of the Lord Chief Justice Campbell, flanked by the Lord Baron, Justice Erle and Justice Crowder, and my client pleaded not guilty I immediately rose, roaring my indignation, and attacked the court for want of jurisdiction. It was a forlorn hope, of course, and merely an opening salvo but I wanted to make the point and raise the heat at once. Campbell overruled me on the point, but conceded that Bernard would have the right to an English jury or one composed of his own countrymen.

  I had schooled Bernard well.

  In a clear, ringing tone he raised his chin and announced, ‘I trust with confidence to a jury of Englishmen!’

  This caused a stir of righteous pride in the packed courtroom, and brought the jury onto his side, as I had calculated. And I made a further point, with great deliberation.

  ‘During the course of this hearing, my Lord, I shall be adverting to the unconscionable use by the prosecution of foreign spies. I must demand immediately that all such persons present in the courtroom shall be asked at once to withdraw!’

  There was a moment’s stunned silence, then, as twelve dark-clothed, black-bearded gentlemen stood up and made their way out of the courtroom a ripple of laughter went swirling among the crowded benches. The journalists loved it and scribbled mightily. I looked at Jack Campbell on the Bench and he caught my eye: there was the hint of a smile on his cruel lips, and I knew that he was well aware of what I was doing: the so-called spies were, of course, individuals I had arranged to be present, paid in advance, to undertake this manoeuvre.

  But the jury, and the public did not know that.

  I went on to hammer home the point about spies when I constantly referred to the use the Crown had made of the English police in liaising with their counterparts in France. I argued every single point in favour of my client, and threatened, when overruled, that I would take the matter to appeal. I needled the Attorney General, Sir Fitzroy Kelly, endlessly, both to irritate him and to raise the temperature of the proceedings. I drew sinister motives out of the collaboration between French and English authorities and intimated that there were truths behind this case that would never be disclosed (not that I really knew of any, of course). It was all flummery, you will appreciate, but the jury loved it; they were with me at every step, and brows were furrowed, eyes gleamed and pulses raced with indignation as their shoulders hunched in frustrated patriotism.

  As each prosecution witness was paraded I not only emphasized their unreliability but also their foreign connections—some, I freely admit, imaginary—and stressed the political shenanigans which had been indulged in during the preparations for trial.

  But it was when the Crown case was closed that I produced my trump card.

  ‘My Lords, I will call no witnesses for the defence.’

  There was a stunned silence in court; it extended to the judges on the bench, and then there was a slow gathering in the well of the packed courtroom of murmurs, puzzled chatter and amazed conversation. Their Lordships leaned towards each other, whispering. The society ladies seated beside them fluttered their fans in overheated excitement. Stays were strained, bosoms clutched.

  Lord Chief Justice Campbell hammered on the table before him and fixed me with his eagle, withering, calculating eye.

  ‘Do you mean to say, Mr James, that you will be content merely with addressing the jury?’

  I bowed my bewigged head in confident assent. ‘That is so, my Lord.’

  Pandemonium broke out again but I continued to hold Jack Campbell’s glance and detected the gleam in his eye: he knew what my game was to be.

  And you know, in a way, when I rose to address the jury that day I was almost overwhelmed myself: I felt that it was almost as though I had been in training for this moment all my life. My whole career, not merely my professional training and experience, my knowledge of the common man, but also my early years treading the boards were to come together, strengthening my sinews for the contest I was about to make, the challenge I was about to throw down—the performance I was about to make.

  Because this was to be theatre, pure, unadulterated theatre. The facts of the case, the evidence of the witnesses for the Crown, these matters were hardly relevant, and I had already decided that I would barely refer to them in my speech to the jury. I was to speak on higher things: the freedom of the individual, the corruption of Government and the rights of every free-born Englishman; I would argue Dr Simon Bernard was a principled man of the people struggling against the might of a French despot and a weak English Government; I would refer again to the doubtful legality of the proceedings in spite of Campbell’s ruling and I would draw upon all I had learned in the stage training at John Cooper’s academy those many years ago with its grand gestures and declamatory manner, the cut and thrust of argument in the lower courts and the tension and passion that I knew could be aroused in jurymen proud of their English heritage.

  Rabble-rousing? Why deny it? Demagoguery? Of course! But that was the whole point—I was appealing to the jury’s emotions, not the judge’s view of the law!

  Even now, after all the intervening years, I feel a rush of emotion about that day. A tear of pride prickles in my eye. The speech—ah, I tell you it was a notable triumph! After the event I had my speech published. I have a copy here—let me read you some of my perorations, and you will understand how I worked the jury.

  ‘I should have thought that when, under the dim twilight of that morning, Orsini and Pieri expiated their crime upon the guillotine at Paris enough had been done to vindicate the demands of French justice! And when the English Government was defeated upon the Conspiracy Bill introduced to please the Emperor that the Crown prosecutors would have been satisfied! But no! They seek to find the prisoner guilty of the charge of murder under an Act of Parliament which is not applicable to this case! It is a mockery—and a sham!’

  That put the cat among the pigeons, I can tell you! The infuriated shuffling among the Crown prosecutors, the brow-twitching grumbling and glaring on the Bench … but the jury was riveted.

  I stood
there, the sole champion of English freedoms in a corrupt court, my white-gloved left hand on my hip throwing back the skirt of my gown, my right hand extended as I had been taught on the stage, pointing, calling for the support of the gods, the ears of all who had gone before in the pursuit of liberty, my voice raised to a thunderous roar meant to be heard not just in the Old Bailey but in all the towns and cities and hamlets and rural by-lanes of the entire country. I rolled out the final words in triumphant, declamatory tones.

  ‘Let the verdict be your own, uninfluenced by the ridiculous fears of French armaments, or French invasion.…’

  Not that there had been any likelihood of such events, but that’s beside the point.

  ‘Tell the prosecutor in this case that the jury box is the sanctuary of English liberty!’

  Stirring words, hey? And then there’s this bit, a little later. Here we are:

  ‘Tell the prosecutor that on this spot your predecessors have resisted the arbitrary power of the Crown, backed by the influence of Crown-serving, time-serving judges!’

  There was a grand rustling of judicial ermine at that point, I can tell you! It was my finest moment! I was having the time of my life, believe me, and this was a moment that I was going to seize with all my power, with both hands, and I strained my lungs as I bellowed above the growing pandemonium in the courtroom,

  ‘Tell the prosecutor that though six hundred French bayonets glittered before you, though the roar of French cannon thundered in your ears, you will return a verdict that your own breasts will sanctify, careless whether it pleases a foreign despot or no, or secures or shakes and destroys forever the throne which a tyrant has built upon the ruins of the liberty of a once free and mighty people!’

  When I sat down the noise was tremendous and I was bathed in sweat, and shaking. In truth I knew I had staked a man’s life upon an enormous gamble: ignore the evidence presented, make no attempt to overturn it, make no plea in mitigation, but merely appeal to the hearts and minds of the jury. A jingoistic gamble with Bernard’s life—and my future career.

  But the uproar continued in spite of the overwhelmed ushers; silence fell in the courtroom only when the Clerk of Arraigns called to the jury for their verdict. The foreman stood up. I did not even look at him; I was done.

  In a firm tone, the foreman to the jury intoned, ‘We find the prisoner not guilty.’

  3

  There was a moment of stunned silence and then uproar broke loose. The loud shout of exultation began in the gallery where men and women stood up, roaring and fluttering handkerchiefs. Ladies of quality were on their feet hysterically waving their fans—except for two on the bench who had fainted—and Simon Bernard leapt up and shook his fist in triumph to his supporters in the crowd. I was immediately engulfed by a surge of enthusiastic well-wishers scrambling over the benches to embrace me as Lord Chief Justice Campbell rose from his seat, raised his hand, called vainly for silence. But he could not prevent the storm of applause, the hooting, the cheering, the shouting which was soon taken up in the crowded streets outside when news of the verdict reached the assembled throng eager to hear the result.

  I was swept out of the courtroom, carried along on a tide of enthusiasm, hats being thrown in the air, street traffic at a standstill and a vast crowd insisted that I be hoisted on a succession of shoulders as I was escorted to Inner Temple Lane. Champagne bottles popped in the street, my name was chanted up and down the alleys and lanes and women threw open casement windows and waved kerchiefs and flags and—in a few cases—petticoats and other items of female apparel. By the time I reached my lodgings I was exhausted.

  But next day the storm broke in another direction.

  The verdict of The Times was that the jury’s decision had been a grave mistake. The Saturday Review commented gloomily on the effect the decision would have on relations between England and France. Outside England, L’Univers snarled that the whole episode was ‘disgusting’ and Le Constitutionnel vilified me personally for my ‘calumny and insults against the Emperor’. Nor was the English legal press very happy about the manner in which I had displayed my forensic talents. The Solicitors’ Journal declared it had formed ‘no exalted estimate either of the intelligence of the average English citizen or of the dignity of the English advocate’ and other journals such as The Law Times and The Legal Observer considered my address to the jury as tawdry, inconclusive, offensive in its effrontery, bombastic, blustering and improper! In other words they didn’t like it. They claimed I was openly approving assassination as a political solution. They claimed it had been a political speech that swayed the jury, rather than a considered peroration relying on facts in issue and the legal basis of the evidence.

  And to some extent I have to admit they were right. On the other hand I had given the jury and the public what they wanted and I had saved Dr Bernard’s life. And when an excited, half-inebriated Lord Worsley dragged me out on Friday night to celebrate in Leicester Square we swaggered arm-in-arm to enter the Café Chantant. At that date the café was a popular night house where men and women gathered to smoke cigars, take coffee, eat mutton chops and Welsh rarebits along with pale ale, brandy and gin. We entered the large room, which was furnished in the French style with long mirrors, settees and marble-topped tables and as soon as the French proprietor realized the identity of the hero who had entered he dashed to the piano, mustered the small orchestra and began the singing of Le Marseillaise. In a moment all in the room were standing, waving champagne glasses in my direction and singing lustily, roaring out a drunken chorus.

  Free champagne was ordered for all—Lord Worsley paid the bill. And the French proprietor knew when he was on to a good thing: next day he issued placards announcing that I would be attending the café again that evening, accompanied by Dr Bernard himself and some of the jurors. In fact none of us actually made an appearance, but the proprietor did a roaring trade nevertheless.

  The Bar itself was in turmoil. Some of the young hot-blooded barristers of a radical persuasion held a meeting at St Martin’s Hall where one briefless barrister called Slack issued a polemic in favour of rebellion, revolution and regicide. I had sneaked in at the back of the hall but when my presence was noted I was called forward to loud cheering to join the platform party, along with Simon Bernard.

  And I fear, a little inebriated, I became somewhat carried away by the occasion. The reporters from The Daily News and The Morning Star were present, scribbling away industriously, and next day they printed what they claimed I had said,

  ‘It is well known that I rejected the offer of the Crown to prosecute Bernard, a man against whom I believe an unjust and obsolete act of Parliament was put into force! Lord Chief Justice Campbell, as I told him to his face, never dared to tell the jury what an obsolete law it was.…’

  Next morning, when the effects of the inevitable hangover were still with me I realized I had gone too far by a distance, overstepped the mark, as they say. Spencer Walpole, the Home Secretary, sent me a note, invited me to his chambers and there we had a lively discussion. The Attorney General, pompous Fitzroy Kelly, had a stern word with me. I knew I had to back down and insisted that the newspapers, and particularly The Morning Star, had misrepresented what I had said.

  I ate the appropriate humble pie in private and consequently when the matter was raised in the House the Home Secretary beat off the charges; Sir James Duke came to my support and Lord Palmerston spoke valiantly in my defence. I received a stern wigging in private, but they all knew that my speech in the trial had caused a great wash of popular feeling in favour of Bernard, and against any kow-towing to the Emperor of the French. Political advantage could be made of that in due course.

  So though the legal press still excoriated me it was another kettle of fish with the public and, equally importantly, with the attorneys. They clamoured to engage me, briefs poured into my chambers, I was called upon to act for aristocrats such as Lady Meux and Lord Dinorban and for less exalted personages such as the moneylender
Truelove, an inflammable chemist sued for breach of promise of marriage, and a client who was constantly under the delusion that there was a blue pig under his bed. I gave each my full attention.

  I appeared at Carlisle, Liverpool, Chelmsford, York, Guildford and Lancaster and on each occasion the courtroom was crowded with enthusiastic supporters who had come to hear me speak. A horse racing case here, a trespass there—wherever I went it seemed my fame had gone before.

  It was a fame the Government could not ignore. They knew they needed me.

  There was to be a by-election at Reigate and it was intimated to me by Spencer Perceval that I would receive ministerial support if I threw my cap in the ring. I did so.

  Unfortunately, it turned out to be a financial fiasco.

  After I had once again spent a considerable amount of money in canvassing it emerged that there was some doubt whether the Speaker of the House of Commons had been legally entitled to issue the writ for the by-election and while the wrangling went on I retired in disgust to the summer assizes, then went shooting in Scotland, visited Lord Petre’s country seat and then found, late in the day, the Speaker had finally issued the writ.

  I dashed back to Reigate at more expense but I faced the conditions I had seen at Southampton all over again: low class labourers and railway navigators who stormed the doors of the Town Hall, threw fruit and eggs and lighted fireworks and prevented me from speaking. It wasn’t political opposition; it was just the effects of drunken mayhem.

  I didn’t even bother to appear at the hustings.

  For I had been warned that Lord Ebrington, MP for Marylebone, might be on the point of relinquishing his seat as a consequence of ill health: in the middle of the Reigate debacle Lord Derby, then Prime Minister, had a conversation with me over cards at Brooks’ and I was offered the assistance of others present at the occasion: James Wyld MP, Colonel Dickson and Sir James Duke, all men of influence in the borough.