Mr. Nimble, the prisoner's counsel, asked if the prisoner might sit down as he was very "infirm."

"Have you an affidavit of that fact, Mr. Nimble?" asked the Judge.

"No, my lord; it is not usual on such an application to have an affidavit."

"It is not usual," said his lordship, "to take notice of any fact not upon affidavit; but in this case the prisoner may sit down."

The prosecutrix gave her evidence very flippantly, and did not seem in the least concerned that her virtue had had so narrow an escape.

"Now," asked Mr. Nimble, "what are you?"

The learned Judge said he could not see what that had to do with the question. Could Mr. Nimble resist the facts?

"Yes, my lord," answered the learned counsel; "and I intend, in the first place, to resist them by showing that this woman is entirely unworthy of credit."

"Are you really going to suggest perjury, Mr. Nimble?"

"a.s.suredly, my lord! I am going to show that there is not a word of truth in this woman's statement. I have a right to cross-examine as to her credit. If your lordship will allow me, I will-"

"Cross-examination, Mr. Nimble, cannot be allowed, in order to make a witness contradict all that she has said in her examination-in-chief; it would be a strange state of the law, if it could."

Mr. Nimble looked about the desk, and then under it, and felt in his bag, and at last exclaimed in a somewhat petulant tone:

"Where's my Taylor?"

"What do you want your tailor for?" asked the Judge.

"I wish to point out to your lordship that my proposition is correct, and that I can cross-examine to the credit of a witness."

Here the clerk of arraigns, who sat just under the learned Judge, and was always consulted on matters of practice when there was any difficulty, was seen whispering to his lordship: after which his lordship looked very blank and red.

"We always consult him, my lord," said Mr. Nimble, with a smile, "in suits at Common Law."

Everybody tried not to laugh, and everybody failed. Even the Judge, being a very good-tempered man, laughed too, and said:

"O yes, Taylor on Evidence, Mr. Nimble."

At last the book, about the size of a London Directory, was handed up by a tall man who was Mr. Nimble's clerk.

"Now, my lord, at page nineteen hundred and seventy-two your lordship will find that when the credibility of a witness is attacked-"

Judge: "That will be near the end of the book."

Mr. Nimble: "No, my lord, near the beginning."

"I shall not stop you," said the learned Judge; "your question may be put for what it is worth: but now, suppose in answer to your question she says she is an ironer, what then?"

"That's what I am, my lordship," said the woman, with an obsequious curtsey.

"There, now you have it," said the Judge, "she is an ironer; stop, let me take that down, 'I am an ironer.'"

The cross-examination continued, somewhat in an angry tone no doubt, and amid frequent interruptions; but Mr. Nimble always thumped down the ponderous Taylor upon any objection of the learned Judge, and crushed it as though it were a b.u.t.terfly.

Next the policeman gave his evidence, and was duly cross-examined. Mr.

Nimble called no witnesses; there were none to call: but addressed the jury in a forcible and eloquent speech, stigmatizing the charge as an utterly preposterous one, and dealing with every fact in a straightforward and manly manner. After he had finished, the jury would undoubtedly have acquitted; but the learned Judge had to sum up, which in this, as in many cases at Quarter Sessions, was no more a summing up than counting ten on your fingers is a summing up. It was a desultory speech, and if made by the counsel for the prosecution, would have been a most unfair one for the Crown: totally ignoring the fact that human nature was subject to frailties, and testimony liable to be tainted with perjury.

It made so great an impression upon me in my dream that I transcribed it when I awoke; and this is the manner in which it dealt with the main points:-

"GENTLEMEN OF THE JURY,

"This is a case of a very serious character (the nature of the offence was then read from Roscoe), and I am bound to tell you that the evidence is all one way: namely, on the side of the prosecution. There is not a single affidavit to the contrary. Now what are the facts?"

Mr. Nimble: "Would your lordship pardon me-whether they are facts or not is for the jury."

"I am coming to that, Mr. Nimble; unless contradicted they are facts, or, at least, if you believe them, gentlemen. If the evidence is uncontradicted, what is the inference? The inference is for you, not for me; I have simply to state the law: it is for you to find the facts. You must exercise your common sense: if the prisoner could have contradicted this evidence, is it reasonable to suppose he would not have done so with so serious a charge hanging over his head?"

"My lord, may I ask how could the prisoner have called evidence? there was no one present."

"Mr. Nimble," said his Lordship solemnly, "he might have shown he was elsewhere."

"Yes, my lord; but the prisoner admits being present: he doesn't set up an _alibi_."

"Gentlemen, you hear what the learned counsel says: he admits that the prisoner was present; that is corroborative of the story told by the prosecutrix. Now, if you find a witness speaking truthfully about one part of a transaction, what are you to infer with regard to the rest?

Gentlemen, the case is for you, and not for me: happily I have not to find the facts: they are for you-and what are they? This woman, who is an ironer, was going along a lonely lane, proceeding to her home, as she states-and again I say there is no contradiction-and she meets this man; he accosts her, and then, according to her account, a.s.saults her, and in a manner which I think leaves no doubt of his intention-but that is for you. I say he a.s.saults her, if you believe her story: of course, if you do not believe her story, then in the absence of corroboration there would be an end of the case. But is there an absence of corroboration?

What do we find, gentlemen? Now let me read to you the evidence of Police Constable Swearhard. What does he say? 'I was coming along the Lover's Lane at nine twenty-five, and I saw two persons, whom I afterwards found to be the prosecutrix and the prisoner.' 'You will mark that, gentlemen, the prisoner himself does not suggest an _alibi_, that is to say, that he was elsewhere, when this event occurred. Then he was upon the spot: and the policeman tells you-it is for you to say whether you believe the policeman or not; there is no suggestion that he is not a witness of truth-and he says that he heard a scream, and caught the defendant in the act. Now, from whom did that scream proceed? Not from the prisoner, for it was the scream of a woman. From whom then could it proceed but from the prosecutrix? Now, in all cases of this kind, one very material point has always been relied on by the Judges, and that point is this: What was the conduct of the woman? Did she go about her ordinary business as usual, or did she make a complaint? If she made no complaint, or made it a long time after, it is some evidence-not conclusive by any means-but it is some evidence against the truth of her story. Let us test this case by that theory. What is the evidence of the policeman? I will read his words: 'The moment I got up,'

he says, now mark that, gentlemen, 'the woman complained of the conduct of the prisoner: she screamed and threw herself in my arms and then nearly fainted.' Gentlemen, what does all that mean? You will say by your verdict."

"Consider your verdict," said the Clerk of Arraigns, and almost immediately the Jury said: "Guilty of attempt."

"Call upon him," said the Judge: and he was called upon accordingly, but only said "the prosecutrix was a well-known bad woman."

Then the Judge said very solemnly:-

"Prisoner at the bar, you have been convicted upon the clearest possible evidence of this crime: what you say about the character of the prosecutrix the more convinces me that you are a very bad man. You not only a.s.sail the virtue of this woman, but, happily prevented in your design, you endeavour to destroy it afterwards in this Court. No one who has heard this case can doubt that you have been guilty of this very grave offence; and in my judgment that offence is aggravated by the fact that you committed it against her will and without her consent. The sentence is that you be sent to prison for eighteen calendar months."

"Rather warm," said Mr. O'Rapley.

"Never heeard such a thing in my life," said Master b.u.mpkin, "she wur a consentin' party if ever there wur one."

"But that makes no difference now-a-days," said Mr. O'Rapley. "Chancery Judges studies the equity of the thing more. But perhaps, Mr. b.u.mpkin, you don't know what that means?"

"No," said b.u.mpkin, "I doan't."

"You must be quiet," said Mr. O'Rapley; "recollect you are in a Court of Justice."

"Be I! It 'ud take moore un thic case to make I believe it; but lookee here: I be hanged if there ain't that Snooks feller down along there."

"Who?" enquired O'Rapley.

"That there feller," said b.u.mpkin, "be sure to find his way where there's anything gooin on o' this ere natur."