The Reminiscences of Sir Henry Hawkins (Baron Brampton) Part 48

I had learned by this exhibition of forces that there _was_ a defence, if I could only keep it up my sleeve. To expose it before the magistrate would simply enable Clarkson, who was opposed to me, to bring up reinforcements, and knock me into a c.o.c.ked hat instead of Napoleon. Old Saul knew nothing whatever about my intended manoeuvre, nor did Clarkson or his solicitor.

I knew the man would be committed for trial; the magistrate had intimated as much. I therefore said nothing, except that I would reserve my defence.

Had I said a word, Clarkson would have shaped his indictment to meet the objection which I intended to make; the man, however, was committed to the Old Bailey in total ignorance of what defence was to be made.

The case was tried before Baron Alderson, as shrewd a Judge, perhaps, as ever adorned the Bench.

When I took my point, he at once saw the difficulty Napoleon was in--a difficulty from which no Napoleon could escape even by a _coup d'etat_.

It was, in fact, this--simple as A B C:--

When the bills of exchange were received by Pollard, although he intended to defraud, they were _neither drawn nor accepted_, and so were not bills of exchange at all; another process was necessary before they could become so even in appearance, and that was forgery.

Moreover, there was included in this point another objection--namely, that the _stamps_ signed by the Prince having been handed to him with the intention that they _should be subsequently filled up_, they were not _valuable securities_ (for stealing which the ill-used Pollard was indicted) at the time they were appropriated, and could not therefore be so treated.

In short, the legal truth was that Pollard neither stole nor obtained either _bill of exchange_ (for such they were not at that time) or valuable security.

Such was the law. I believe Napoleon said the devil must have made it, or worked it into that "tam shape!"

There were many technicalities in the law of those days, and justice was often defeated by legal quibbles. But the law was so severe in its punishments that Justice herself often connived at its evasion. At the present day there is a gradual tendency to make punishment more lenient and more certain--to remove the entanglements of the pleader, and render progress towards substantial instead of technical justice more sure and speedy. Napoleon's defeat could not have occurred at the present day--not, at all events, in that "tam shape."

In a case in which the member of St. Ives was pet.i.tioned against on the ground of treating, before Lush, J., I was opposed by Russell (afterwards Lord Chief Justice and Lord Russell of Killowen). A.L.

Smith was my junior, and I need not say he knew almost everything there was to be known about election law. There was, however, no law in the case. No specific act of treating was proved, but we felt that general treating had taken place in such a wholesale manner that our client was affected by it. So we consented to his losing his seat--that is to say, that the election should be declared _void_--merely void. As the other side did not seem to be aware that this void could be filled by the member who was unseated, they did not ask that our client should not be permitted to put up for the vacancy, although this was the real object of my opponent's pet.i.tion. He wanted the seat for himself, but knew that he had not the remotest chance against his unseated opponent.

His surprise, therefore, must have been as great as his chagrin when, the very night of the decision which unseated him, he came forward once more as a candidate. The pet.i.tion had increased his popularity, and he won the seat with the greatest ease, and without any subsequent disturbance by the former pet.i.tioner.

I have told you of a curious trial before a Recorder of Saffron Walden, and my memory of that event reminds me of another which took place in that same abode of learning and justice. Joseph Brown, Q.C., and Thomas Chambers, Q.C., were brother Benchers of mine, and when we met at the Parliament Chamber after dinner it was more than likely that many stories would be told, for we often fought our battles over again.

At the time I speak of Knox was the Recorder of that important borough, and was possessed of all the dignity which so enhances a great officer in the eyes of the public, whether he be the most modest of beadles in beadledom, or the highest Recorder in Christendom. To give himself a greater air of importance, Knox always carried a _blue umbrella_ of a most blazing grandeur. He was looked up to, of course, at Saffron Walden, as their greatest man, especially as he occupied the best apartments at the chief brimstone shop in the town. When I say _brimstone_, I mean that it seemed to be its leading article; for there were a great many yellow placards all over and about the emporium, which, perhaps, ought to have been called a "general shop."

There were three men up before Knox for stealing malt; a very serious offence indeed in Saffron Walden, where malt was almost regarded as a sacred object--until it got into the beer.

"Tom" Chambers (afterwards Recorder of London) was defending these prisoners, and I have no doubt, from the conduct of Knox, acquired a great deal of that discrimination of character which afterwards so distinguished him in the City of London. The degrees of guilt in these persons ought to be noted by all persons who hold, or hope to hold, a judicial position. As to the first man, the actual thief, there could be no doubt about his crime, for he was actually wheeling the two or three shovelfuls of malt in a barrow; so there was not much use in defending him.

About the second man there was not the same degree of certainty, for he had never touched the malt or the barrow, and there was no evidence that he knew the first man had stolen it. The only suspicion--for it was nothing more--against him was that he was seen to be walking _along the highway_ near the man who was wheeling the barrow, and as it was daytime, many others were equally guilty.

The third man was still less implicated, for all that appeared against him was that _at some time or other_ he had been seen, either on the day of the theft or just before, to be in a public-house with the thief and asking him to have a drink.

If it had not been at Saffron Walden, where they are so jealous of their malt and such admirers of their maltsters, there would have been no case against any one but the actual thief; and if the Recorder had known the law as well as he knew Saffron Walden, or half as much as Saffron Walden admired him, he would have ruled to that effect.

However, he pointed out to the jury the cases one by one with great care and no stint of language.

"Against the first," said he, "the case is clear enough: he is caught with the stolen goods in his possession. In the second case, _perhaps_, it is not quite so strong, you will think; but it is for _you_, gentlemen, not for _me_, to judge. You will not forget, gentlemen, he was walking along by the side of the actual thief, and it is for you to say what that means." Then, after clearing his throat for a final effort, he said,--

"Now we come to the third man. Where was he? I must say there is a slight difference between his case and that of the other two men, who might be said to have been caught in the very act; but it's for _you_, gentlemen, not for _me_. It is difficult to point out item by item, as it were, the difference between the three cases; but you will say, gentlemen, whether they were not all mixed up in this robbery--it's for _you_, gentlemen, not for _me_."

The jury were not going to let off three such rogues as the Recorder plainly thought them, and instantly returned a verdict of guilty against all.

"I agree with the verdict," said the Recorder. "It is _a very bad case_, and a mercantile community like Saffron Walden must be protected against such depredators as you. No doubt there are degrees of guilt in your several cases, but I do not think I should be doing my duty to the public if I made any distinction in your sentences: you must all of you undergo a term of five years' penal servitude."

Whereupon Tom Chambers was furious. Up he jumped, and said,--

"Really, sir; really--"

"Yes," said Knox, "really."

"Well, then, sir, you can't do it," said the counsel; "you cannot give penal servitude for petty larceny. Here is the Act" (reading): "'Unless the prisoner has been guilty of any felony before.'"

"Very well," said the Recorder; "you, Brown, the actual thief, and you, Jones, his accessory in the very act, not having been convicted before, I am sorry to say, cannot be sentenced to more than two years'

imprisonment with hard labour, and I reduce the sentence in your cases to that; but as to you, Robinson, yours is a very bad case. The jury have found that you were _mixed up_ in this robbery, and I find that you have been convicted of stealing apples. True, it's a good many years ago, but it brings you within the purview of the statute, and therefore your sentence of five years will stand."

CHAPTER XLVI.

THE NEW LAW ALLOWING THE ACCUSED TO GIVE EVIDENCE--THE CASE OF DR.

WALLACE, THE LAST I TRIED ON CIRCUIT.

I should like to make an observation on the recent Act for enabling prisoners to go into the witness-box and subject themselves, after giving their evidence, to cross-examination.

It must be apparent to every one, learned and unlearned in its mysteries, that no evidence can be of its highest value, and often is of no value, until sifted by cross-examination. I was always opposed to this process as against an accused person, because I know how difficult it is under the most favourable circ.u.mstances to avoid the pitfalls which a clever and artistic cross-examiner may dig for the unwary.

It did not occur to me in that early stage of the discussion on the Bill that a really true story _cannot_ be shaken in cross-examination, and that only the _false_ must give way beneath its searching effect.

I had to learn something in advocacy; indeed, I was always learning, and the best of us may go on for ever learning, as long as this wonderful and mysterious human nature exists.

However, I am not writing philosophical essays, but relating the facts of my simple life, and I confess that the case that came before me on this occasion totally upset my quiet repose in all the comfortable traditions of the past. Human nature had something which I had not seen: it arose in this way. A doctor was accused of a terrible crime against a female patient. I need not give its details; it is sufficient to say that if the girl's statement was true penal servitude for life was not too much, for he was a villain of the very worst character. Taking the ordinary run of evidence, if I may use the word, and the ordinary mode of cross-examination, which, in the hands of unskilled pract.i.tioners, generally tends to corroborate the evidence-in-chief, the case was overwhelmingly proved, and how sad and painful it was to contemplate none can realize who do not understand anything below the surface of human existence.

I had watched the case with the anxious care that I am conscious should be exercised in all inquiries, and especially criminal inquiries, that come before one. I watched, and, let me say, _especially watched_, for any point in the evidence on which I could put a question in the prisoner's favour.

Upon that subject I never wavered throughout the whole of my career, and the testimony of the letters which I received from the most distinguished members of the criminal Bar--not to say that they are not equally distinguished in the civil--will, I am sure, bear out my little self-praise upon a small matter of infinite importance.

Everything in this case seemed to be overwhelmingly against the unhappy doctor. No one in court, except himself, _could_ believe on the evidence but that he was guilty.

I, who through my whole life had been studying evidence and the mode in which it was delivered, believed in the man's guilt, and felt that no cross-examination, however subtle and skilfully conducted, could shake it.

I felt for the man--a scholar, a scientist--as one must feel for the victim of so great a temptation. But I felt also that he was ent.i.tled, on account of all those things which aroused my sympathy, to the severest sentence, which I had already considered it would be my duty to award him.

Then, under the New Act, which I had spoken against and written against, as one long a.s.sociated with all the bearings of evidence given in the witness-box, the poor doctor stepped into that terrible trap for the untruthful.

Let me now observe that, even before he was sworn, his _manner_ made a great impression on my mind. And on this subject I would like to say that few Judges or advocates sufficiently consider it.

The greatest actor has a manner. The man who is not an actor has a manner, and if you are only sufficiently read in the human character, it cannot deceive you, however disguised it may be. A witness's evidence may deceive, but his manner is the looking-gla.s.s of his mind, sometimes of his innocence. It was so in this case.

The man was not acting, and he was not an actor.