THE SOFA.
“WHAT young men will do, sometimes, to ruin themselves and break their friends’ hearts,” said Serjeant Dornton, “it’s surprising! I had a case at Saint Blank’s Hospital which was of this sort. A bad case, indeed, with a bad end!
“The Secretary, and the House-Surgeon, and the Treasurer, of Saint Blank’s Hospital, came to Scotland Yard to give information of numerous robberies having been committed on the students. The students could leave nothing in the pockets of their great-coats, while the great-coats were hanging at the Hospital, but it was almost certain to be stolen. Property of various descriptions was constantly being lost; and the gentlemen were naturally uneasy about it, and anxious, for the credit of the Institution, that the thief or thieves should be discovered. The case was entrusted to me, and I went to the Hospital.
“ ‘Now, gentlemen,’ said I, after we had talked it over, ‘I understand this property is usually lost from one room.’
“Yes, they said. It was.
“ ‘I should wish, if you please,’ said I, ‘to see that room.’
“It was a good-sized bare-room down stairs, with a few tables and forms in it, and a row of pegs, all round, for hats and coats.
“ ‘Next, gentlemen,’ said I, ‘do you suspect anybody?’
“Yes, they said. They did suspect somebody. They were sorry to say, they suspected one of the porters.
“ ‘I should like,’ said I, ‘to have that man pointed out to me, and to have a little time to look after him.’
“He was pointed out, and I looked after him, and then I went back to the Hospital, and said, ‘Now, gentlemen, it’s not the porter. He’s, unfortunately for himself, a little too fond of drink, but he’s nothing worse. My suspicion is, that these robberies are committed by one of the students; and if you’ll put me a sofa into that room where the pegs are—as there’s no closet—I think I shall be able to detect the thief. I wish the sofa, if you please, to be covered with chintz, or something of that sort, so that I may lie on my chest, underneath it, without being seen.’
“The sofa was provided, and next day at eleven o’clock, before any of the students came, I went there, with those gentlemen, to get underneath it. It turned out to be one of those old-fashioned sofas with a great cross beam at the bottom, that would have broken my back in no time if I could ever have got below it. We had quite a job to break all this away in the time: however, I fell to work, and they fell to work, and we broke it out, and made a clear place for me. I got under the sofa, lay down on my chest, took out my knife, and made a convenient hole in the chintz to look through. It was then settled between me and the gentlemen that when the students were all up in the wards, one of the gentlemen should come in, and hang up a great-coat on one of the pegs. And that that great-coat should have, in one of the pockets, a pocket-book containing marked money.
“After I had been there some time, the students began to drop into the room, by ones, and twos, and threes, and to talk about all sorts of things, little thinking there was anybody under the sofa—and then to go up stairs. At last there came in one who remained until he was alone in the room by himself. A tallish, good-looking young man of one or two and twenty, with a light whisker. He went to a particular hat-peg, took off a good hat that was hanging there, tried it on, hung his own hat in its place, and hung that hat on another peg, nearly opposite to me. I then felt quite certain that he was the thief, and would come back by-and-bye.
“When they were all up stairs, the gentleman came in with the great-coat. I showed him where to hang it, so that I might have a good view of it; and he went away; and I lay under the sofa on my chest, for a couple of hours or so, waiting.
“At last, the same young man came down. He walked across the room, whistling—stopped and listened—took another walk and whistled—stopped again, and listened—then began to go regularly round the pegs, feeling in the pockets of all the coats. When he came to THE great-coat, and felt the pocket-book, he was so eager and so hurried that he broke the strap in tearing it open. As he began to put the money in his pocket, I crawled out from under the sofa, and his eyes met mine.
“My face, as you may perceive, is brown now, but it was pale at that time, my health not being good; and looked as long as a horse’s. Besides which, there was a great draught of air from the door, underneath the sofa, and I had tied a handkerchief round my head; so what I looked like, altogether, I don’t know. He turned blue—literally blue—when he saw me crawling out, and I couldn’t feel surprised at it.
“ ‘I am an officer of the Detective Police,’ said I, ‘and have been lying here, since you first came in this morning. I regret, for the sake of yourself and your friends, that you should have done what you have; but this case is complete. You have the pocket-book in your hand and the money upon you; and I must take you into custody!’
“It was impossible to make out any case in his behalf, and on his trial he pleaded guilty. How or when he got the means I don’t know; but while he was awaiting his sentence, he poisoned himself in Newgate.”
We inquired of this officer, on the conclusion of the foregoing anecdote, whether the time appeared long, or short, when he lay in that constrained position under the sofa?
“ ‘Why, you see, Sir,’ he replied, ‘if he hadn’t come in, the first time, and I had not been quite sure he was the thief, and would return, the time would have seemed long. But, as it was, I being dead-certain of my man, the time seemed pretty short.’ ”
Part XIV.
THE MARTYRS OF CHANCERY.
IN Lambeth Marsh stands a building better known than honored. The wealthy merchant knows it as the place where an unfortunate friend, who made that ruinous speculation during the recent sugar-panic, is now a denizen; the man-about-town knows it as a spot to which several of his friends have been driven, at full gallop, by fleet race-horses and dear dog-carts; the lawyer knows it as the “last scene of all,” the catastrophe of a large proportion of law-suits; the father knows it as a bug-bear wherewith to warn his scapegrace spendthrift son; but the uncle knows it better as the place whence nephews date protestations of reform and piteous appeals, “this once,” for bail. Few, indeed, are there who has not heard of the Queen’s Prison, or, as it is more briefly and emphatically termed, “The Bench!”
Awful sound! What visions of folly and roguery, of sloth and seediness, of ruin and recklessness, are conjured up to the imagination in these two words! It is the “Hades” of commerce—the “Inferno” of fortune. Within its grim walls—surmounted by a chevaux de frise, classically termed “Lord Ellenborough’s teeth”—dwell at this moment members of almost every class of society. Debt—the grim incubus riding on the shoulders of his victim, like the hideous old man in the Eastern fable—has here his captives safely under lock and key, and within fifty-feet walls. The church, the army, the navy, the bar, the press, the turf, the trade of England, have each and all their representatives in this “house.” Every grade, from the ruined man of fortune, to the petty tradesman who has been undone by giving credit to others still poorer than himself, sends its members to this Bankrupts’ Parliament.
Nineteen-twentieths in this Royal House of Detention owe their misfortunes directly or indirectly to themselves; and, for them, every free and prosperous man has his cut-and-dry moral, or scrap of pity, or screed of advice; but there is a proportion of prisoners—happily a small one—within those huge brick boundaries, who have committed no crime, broken no law, infringed no commandment. They are the victims of a system which has been bequeathed to us from the dark days of the “Star Chambers” and “Courts of High Commission”—we mean the Martyrs of Chancery.
These unhappy persons were formerly confined in the Fleet Prison, but on the demolition of that edifice, were transferred to the Queen’s Bench. Unlike prisoners of any other denomination, they are frequently ignorant of the cause of their imprisonment, and more frequently still, are unable to obtain their liberation by any acts or concessions of their own. There is no act of which they are permitted to take the benefit—no door left open for them in the Court of Bankruptcy. A Chancery prisoner is, in fact, a far more hopeless mortal than a convict sentenced to transportation; for the latter knows that at the expiration of a certain period, he will, in any event, be a free man. The Chancery prisoner has no such certainty; he may, and he frequently does, waste a life-time in the walls of a jail, whither he was sent in innocence—because, perchance, he had the ill-luck to be one of the next of kin of some testator who made a will which no one could comprehend, or the heir of some intestate who made none. Any other party interested in the estate commences a Chancery suit, which he must defend or be committed to prison for “contempt.” A prison is his portion, whatever he does; for, if he answers the bill filed against him, and cannot pay the costs, he is also clapped in jail for “contempt.” Thus, what in ordinary life is but an irrepressible expression of opinion or a small discourtesy, is, “in Equity,” a high crime, punishable with imprisonment—sometimes perpetual. Whoever is pronounced guilty of contempt in a Chancery sense, is taken from his family, his profession, or his trade, (perhaps his sole means of livelihood,) and consigned to a jail where he must starve, or live on a miserable pittance of three shillings and sixpence a week, charitably doled out to him from the county rate.
Disobedience of an order of the Court of Chancery—though that order may command you to pay more money than you ever had, or to hand over property which is not yours and was never in your possession—is contempt of court. No matter how great soever your natural reverence for the time-honored institutions of your native land—no matter, though you regard the Lord High Chancellor of Great Britain as the most wonderful man upon earth, and his court as the purest fount of Justice, where she sits weighing out justice with a pair of Oertling’s balances, you may yet be pronounced to have been guilty of “contempt.” For this there is no pardon. You are in the catalogue of the doomed, and are doomed accordingly.
A popular fallacy spreads a notion that no one need “go into Chancery,” unless he pleases. Nothing but an utter and happy innocence of the bitter irony of “Equity” proceedings keeps such an idea current. Men have been imprisoned for many years, some for a life-time, on account of Chancery proceedings, of the very existence of which they were almost in ignorance before they “somehow or other were found in contempt.”
See yonder slatternly old man in threadbare garments, with pinched features telling of long years of anxiety and privation, and want. He has a weak, starved voice, that sounds as though years of privation have shrunk it as much as his cheeks. He always looks cold, and (God help him) feels so too; for Liebig tells us that no quantity of clothing will repel cold without the aid of plenty of food—and little of that passes his lips. His eye has an unquiet, timid, half-frightened look, as if he could not look you straight in the face for lack of energy. His step is a hurried shuffle, though he seldom leaves his room; and when he does, he stares at the racket-players as if they were beings of a different race from himself. No one ever sees his hands—they are plunged desperately into his pockets, which never contain anything else. He is like a dried fruit, exhausted, shrunken, and flung aside by the whole world. He is a man without hope—a Chancery prisoner! He has lived in a jail for twenty-eight weary years! His history has many parallels. It is this:—
It was his misfortune to have an uncle, who died leaving him his residuary legatee. The uncle, like most men who make their own wills, forgot an essential part of it—he named no executor. Our poor friend administered, and all parties interested received their dues—he, last of all, taking but a small sum. It was his only fortune, and having received it he looked about for an investment. There were no railways in those days, or he might have speculated in the Diddlesex Junction. But there were Brazilian Mining Companies, and South Sea Fishing Companies, and various other companies, comprehensively termed “Bubble.” Our friend thought these companies were not safe, and he was quite right in his supposition. So he determined to intrust his money to no bubble speculation; but to invest it in Spanish Bonds. After all, our poor friend had better have tried the Brazilian Mines; for the Bonds proved worth very little more than the paper on which they were written. His most Catholic Majesty did not repudiate, (like certain transatlantic States,) but buttoned up his pockets and told his creditors he had “no money.”
Some five years after our friend was startled by being requested to come up to Doctors’ Commons, and tell the worthy Civilians there all about his uncle’s will—which one of the legatees, after receiving all he was entitled to under it, and probably spending the money—suddenly took it into his head to dispute the validity of. Meanwhile the Court of Chancery also stepped in, and ordered him (pending the ecclesiastical suit) to pay over into court “that little trifle” he had received. What could the poor man do? His Catholic Majesty had got the money—he, the legatee, had not a farthing of it, nor of any other money whatsoever. He was in contempt! An officer tapped him on the shoulder, displayed a little piece of parchment, and he found that he was the victim of an unfortunate “attachment.” He was walked to the Fleet Prison, where, and in the Queen’s Prison, he has remained ever since—a period of twenty-eight years! Yet no less a personage than a Lord Chancellor has pronounced his opinion that the will, after all, was a good and valid will—though the little family party of Doctors’ Commons thought otherwise.
There is another miserable-looking object yonder—greasy, dirty, and slovenly. He, too, is a Chancery prisoner. He has been so for twenty years. Why, he has not the slightest idea. He can only tell you that he was found out to be one of the relations of some one who had left “a good bit of money.” The lawyers “put the will into Chancery; and at last I was ordered to do something or other, I can’t recollect what, which I was also told I couldn’t do nohow if I would. So they said I was in contempt, and they took and put me into the Fleet. It’s a matter of twenty years I have been in prison; of course I’d like to get out, but I’m told there’s no way of doing it anyhow.” He is an artisan, and works at his trade in the prison, by which he gains just enough to keep him without coming upon the county-rate.
In that room over the chapel is the infirmary. There was a death lately. The deceased was an old man of sixty-eight, and nearly blind; he had not been many years in prison, but the confinement, and the anxiety, and the separation from his family, had preyed upon his mind and body. He was half-starved, too; for after being used to all the comforts of life, he had to live in jail on sixpence a-day. Yet there was one thousand pounds in the hands of the Accountant-General of the Court of Chancery, which was justly due to him. He was in contempt for not paying some three hundred pounds. But Death purged his contempt, and a decree was afterwards made for paying over the one thousand pounds to his personal representatives; yet himself had died, for want of a twentieth part of it, of slow starvation!
It must not, however, be supposed that Chancery never releases its victims. We must be just to the laws of “Equity.” There is actually a man now in London whom they have positively let out of prison! They had, however, prolonged his agonies during seventeen years. He was committed for contempt in not paying certain costs, as he had been ordered. He appealed from the order; but until his appeal was heard, he had to remain in durance vile. The Court of Chancery, like all dignified bodies, is never in a hurry; and, therefore, from having no great influence, and a very small stock of money to forward his interest, the poor man could only get his cause finally heard and decided on in December, 1849—seventeen years from the date of his imprisonment. And, after all, the Court decided that the original order was wrong; so that he had been committed for seventeen years by mistake!
How familiar to him must have been the face of that poor, tottering man, creeping along to rest on the bench under the wall yonder. He is very old, but not so old as he looks. He is a poor prisoner, and another victim to Chancery. He has long ago forgotten, if he ever knew, the particulars of his own case, or the order which sent him to a jail. He can tell you more of the history of this gloomy place and its defunct brother, the Fleet, than any other man. He will relate you stories of the “palmy days” of the Fleet, when great and renowned men were frequently its denizens; when soldiers and sailors, authors and actors, whose names even then filled England with their renown, were prisoners within its walls; when whistling shops flourished and turnkeys were smugglers; when lodgings in the prison were dearer than rooms at the west-end of the town; and when a young man was not considered to have finished his education until he had spent a month or two in the Bench or the Fleet. He knows nothing of the world outside—it is dead to him. Relations and friends have long ceased to think of him, or perhaps even to know of his existence. His thoughts range not beyond the high walls which surround him, and probably if he had but a little better supply of food and clothing, he might almost be considered a happy man. But it is the happiness of apathy, not of the intelligence and the affections—the painless condition of a trance, rather than the joyous feeling which has hope for its bright-eyed minister. What has he to do with hope? He has been thirty-eight years a Chancery prisoner. He is another out of twenty-four, still prisoners here, more than half of whom have been prisoners for above ten years, and not one of whom has any hope of release! A few have done something fraudulent in “contempt” of all law and equity; but is not even their punishment greater than their crime?
Let us turn away. Surely we have seen enough, though many other sad tales may be told, rivaling the horrors of Speilberg and French Lettres-de-cachet.
Part XV.
LAW AT A LOW PRICE.
LOW, narrow, dark, and frowning are the thresholds of our Inns of Court. If there is one of these entrances of which I have more dread than another, it is that leading out of Holborn to Gray’s Inn. I never remember to have met a cheerful face at it, until the other morning, when I encountered Mr. Ficker, attorney-at-law. In a few minutes we found ourselves arm in arm, and straining our voices to the utmost amid the noise of passing vehicles. Mr. Ficker stretched himself on tiptoe in a frantic effort to inform me that he was going to a County Court. “But perhaps you have not heard of these places?”
I assured Mr. Ficker that the parliamentary discussions concerning them had made me very anxious to see how justice was administered in these establishments for low-priced Law. “I am going to one now;” but he impressively added, “you must understand, that professionally I do not approve of their working. There can be no doubt that they seriously prejudice the regular course of law. Comparing the three quarters preceding with three quarters subsequent to the establishment of these Courts, there was a decrease of nearly 10,000 writs issued by the Court of Queen’s Bench alone, or of nearly 12,500 on the year.”
We soon arrived at the County Court. It is a plain, substantial looking building, wholly without pretension, but at the same time not devoid of some little architectural elegance of exterior. We entered, by a gateway far less austere than that of Gray’s Inn, a long, well-lighted passage, on either side of which were offices connected with the Court. One of these was the Summons Office, and I observed on the wall a “Table of Fees,” and as I saw Mr. Ficker consulting it with a view to his own business, I asked him his opinion of the charges.
“Why,” said he, “the scale of fees is too large for the client and too small for the lawyer. But suitors object less to the amount than to the intricacies and perplexities of the Table. In some districts the expense of recovering a sum of money is one-third more than it is in others; though in both the same scale of fees is in operation. This arises from the variety of interpretations which different judges and officers put upon the charges.”
Passing out of the Summons Office, we entered a large hall, placarded with lists of trials for the ensuing week. There were more than one hundred of them set down for trial on nearly every day.
“I am glad,” I said, “to think that this is not all additional litigation. I presume these are the thousands of causes a-year withdrawn from the superior Courts?”
“The skeletons of them,” said Mr. Ficker, with a sigh. “There were some pickings out of the old processes; but I am afraid there is nothing but the bone here.”
“I see here,” said I, pointing to one of the lists, “a single plaintiff entered, as proceeding against six-and-twenty defendants in succession.”
“Ah,” said Mr. Ficker, rubbing his hands, “a knowing fellow that—quite awake to the business of these Courts. A cheap and easy way, sir, of recovering old debts. I don’t know who the fellow is—a tailor, very likely—but no doubt you will find his name in the list in this way once every half-year. If his Midsummer and Christmas bills are not punctually paid, it is far cheaper to come here and get a summons served, than to send all over London to collect the accounts, with the chance of not finding the customer at home. And this is one way, you see, in which we solicitors are defrauded. No doubt, this fellow formerly employed an attorney to write letters for him, requesting payment of the amount of his bill, and 6s. 8d. for the cost of the application. Now, instead of going to an attorney, he comes here and gets the summons served for 2s. A knowing hand that—a knowing hand.”
“But,” I said, “surely no respectable tradesman——”
“Respectable,” said Mr. Ficker, “I said nothing about respectability. This sort of thing is very common among a certain class of trades-people, especially puffing tailors and boot-makers. Such people rely less on regular than on chance-custom, and therefore they care less about proceeding against those who deal with them.”
“But,” said I, “this is a decided abuse of the power of the Court. Such fellows ought to be exposed.”
“Phoo, phoo,” said Mr. Ficker; “they are, probably, soon known here, and then if the judge does his duty, they get bare justice, and nothing more. I am not sure, indeed, that sometimes their appearance here may not injure rather than be of advantage to them; for the barrister may fix a distant date for payment of a debt which the tradesman, by a little civility, might have obtained from his customer a good deal sooner.”
“The Court” I found to be a lofty room, somewhat larger and handsomer than the apartment in which the Hogarths are hung up in the National Gallery. One-half was separated from the other by a low partition, on the outer side of which stood a miscellaneous crowd of persons who appeared to be waiting their turn to be called forward. Though the appearance of the Court was new and handsome, everything was plain and simple.
I was much struck by the appearance and manner of the Judge. He was comparatively a young man; but I fancied that he displayed the characteristics of experience. His attention to the proceedings was unwearied; his discrimination appeared admirable; and there was a calm self-possession about him that bordered upon dignity.
The suitors who attended were of every class and character. There were professional men, tradesmen, costermongers, and a peer. Among the plaintiffs, there were specimens of the considerate plaintiff, the angry plaintiff, the cautious plaintiff, the bold-swearing plaintiff, the energetic plaintiff, the practiced plaintiff, the shrewish (female) plaintiff, the nervous plaintiff, and the revengeful plaintiff. Each plaintiff was allowed to state his or her case in his or her own way, and to call witnesses, if there were any. When the debt appeared to be primâ facie proved, the Barrister turned to the defendant, and perhaps asked him if he disputed it?
The characteristics of the defendants were quite as different as the characteristics of the plaintiffs. There was the factious defendant, and the defendant upon principle—the stormy defendant, and the defendant who was timid—the impertinent defendant, and the defendant who left his case entirely to the Court—the defendant who would never pay, and the defendant who would if he could. The causes of action I found to be as multifarious as the parties were diverse. Besides suits by trades-people for every description of goods supplied, there were claims for every sort and kind of service that can belong to humanity, from the claim of a monthly nurse, to the claim of the undertaker’s assistant.
In proving these claims the Judge was strict in insisting that a proper account should have been delivered, and that the best evidence should be produced as to the correctness of the items. No one could come to the court and receive a sum of money merely by swearing that “Mr. So-and-so owes me so much.”
With regard to defendants, the worst thing they could do, was to remain away when summoned to attend. It has often been observed that those persons about whose dignity there is any doubt, are the most rigorous in enforcing its observance. It is with Courts as it is with men; and as Small Debt Courts are sometimes apt to be held in some contempt, I found the Judge here very prompt in his decision, whenever a defendant did not appear by self or agent. Take a case in point:—
Barrister (to the Clerk of the Court). Make an order in favor of the plaintiff.
Plaintiff’s Attorney. Your honor will give us speedy recovery?
Barrister. Will a month do, Mr. Docket?
Plaintiff’s Attorney. The defendant is not here to assign any reason for delay, your honor.
Barrister. Very well; then let him pay in a fortnight.
I was much struck, in some of the cases, by a friendly sort of confidence which characterized some of the proceedings. Here again the effect in a great measure was attributable to the Barrister. He seemed to act—as indeed he is—rather as an authorized arbitrator than as a judge. He advised rather than ordered; “I really think, he said, to one defendant, “I really think, sir, you have made yourself liable.” “Do you, sir?” said the man, pulling out his purse, without more ado, “then, sir, I am sure I will pay.”
It struck me, too, as remarkable, that though some of the cases were hotly contested, none of the defeated parties complained of the decision. In several instances, the parties even appeared to acquiesce in the propriety of the verdict.
A Scotch shoeing-smith summoned a man who, from his appearance, I judged to be a hard, keen-dealing Yorkshire horse-jobber; he claimed a sum of money for putting shoes upon six-and-thirty horses. His claim was just, but there was an error in his particulars of demand which vitiated it. The Barrister took some trouble to point out that in consequence of this error even if he gave a decision in his favor, he should be doing him an injury. The case was a hard one, and I could not help regretting that the poor plaintiff should be non-suited. Did he complain? Neither by word or action. Folding up his papers, he said, sorrowfully, “Well, sir, I assure you I would not have come here, if it had not been a just claim.” The Barrister evidently believed him, for he advised a compromise, and adjourned the case that the parties might try to come to terms. But the defendant would not arrange, and the plaintiff was driven to elect a non-suit.
The mode of dealing with documentary evidence afforded me considerable satisfaction. Private letters—such as the tender effusions of faithless love—are not, as in the higher Courts, thrust one after the other, into the dirty face of a grubby-looking witness who was called to prove the handwriting, sent the round of the twelve jurymen in the box, and finally passed to the reporters that they might copy certain flowery sentences and a few stanzas from “Childe Harold,” which the short-hand writers “could not catch,” but are handed up, seriatim, to the Judge who looks through them carefully and then passes them over without observation for the re-perusal of the defendant. Not a word transpires except such extracts as require comment.
There was a claim against a gentleman for a butcher’s bill. He had the best of all defences, for he had paid ready money for every item as it was delivered. The plaintiff was the younger partner of a butchering firm which had broken up, leaving him in possession of the books and his partner in possession of the credit. The proprietor of the book-debts proved the order and delivery of certain joints prior to a certain date, and swore they had not been paid for. To show his title to recover the value of them, he somewhat unnecessarily thrust before the Barrister, the deed which constituted him a partner. The Judge instantly compared the deed with the bill. “Why,” he said, turning to the butcher, “all the items you have sworn to were purchased anterior to the date of your entering into partnership. If any one is entitled to recover, it is your partner, whom the defendant alleges he has paid.” In one, as they are called, of the “Superior Courts,” I very much doubt whether either Judge or Jury would have discovered for themselves this important discrepancy.
The documentary evidence was not confined to deeds and writings, stamped or unstamped. Even during the short time I was present, I saw some curious records produced before the Barrister—records as primitive in their way as those the Chancellor of the Exchequer used to keep in the Tally-Office, before the comparatively recent introduction of book-keeping into the department of our national accountant.
Among other things received in evidence, were a milkwoman’s score and a baker’s notches. Mr. Ficker appeared inclined to think that no weight ought to be attached to such evidence as this. But, when I recollect that there have occasionally been such things as tombstones produced in evidence before Lord Volatile in his own particular Court, the House of Lords, (“the highest jurisdiction,” as they call it, “in the realm,”) I see no good reason why Mrs. Chalk, the milkwoman, should not be permitted to produce her tallies in a County Court. For every practical purpose the score upon the one seems just as good a document as the epitaph upon the other.
I was vastly pleased by the great consideration which appeared to be displayed towards misfortune and adversity. These Courts are emphatically Courts for the recovery of debts; and inasmuch as they afford great facilities to plaintiffs, it is therefore the more incumbent that defendants should be protected against hardship and oppression. A man was summoned to show why he had not paid a debt pursuant to a previous order of the Court. The plaintiff attended to press the case against him, and displayed some rancor.
“Why have you not paid, sir?” demanded the Judge sternly.
“Your honor,” said the man, “I have been out of employment six months, and within the last fortnight everything I have in the world has been seized in execution.”
In the Superior Courts this would have been no excuse. The man would probably have gone to prison, leaving his wife and family upon the parish. But here that novel sentiment in law proceedings—sympathy—peeped forth.
“I believe this man would pay,” said the Barrister, “if possible. But he has lost everything in the world. At present I shall make no order.”
It did not appear to me that the plaintiffs generally in this Court were anxious to press very hardly upon defendants. Indeed it would be bad policy to do so. Give a man time, and he can often meet demands that it would be impossible for him to defray if pressed at once.
“Immediate execution” in this Court, seemed to be payment within a fortnight. An order to pay in weekly installments is a common mode of arranging a case, and as it is usually made by agreement between the parties, both of them are satisfied. In fact, the rule of the Court seemed not dissimilar from that of trades-people who want to do a quick business, and who proceed upon the principle that “No reasonable offer is refused.”
I had been in the Court sufficiently long to make these and other observations, when Mr. Ficker introduced me to the clerk. On leaving the Court by a side-door, we repaired to Mr. Nottit’s room, where we found that gentleman (an old attorney) prepared to do the honors of “a glass of sherry and a biscuit.” Of course the conversation turned upon “the County Court.”
“Doing a pretty good business here?” said Mr. Ficker.
“Business—we’re at it all day,” replied Mr. Nottit. “I’ll show you. This is an account of the business of the County Courts in England and Wales in the year 1848—the account for 1849 is not yet made up.”
“Take six months, I suppose, to make it,” said Mr. Ficker, rather ill-naturedly.
“Total ‘Number of Plaints or Causes entered,’ ” read the clerk, “427,611.”
“Total amount of money sought to be recovered by the plaintiffs,” continued Mr. Nottit, “£1,346,802.”
“Good gracious!” exclaimed Ficker, his face expressing envy and indignation; “what a benefit would have been conferred upon society, if all this property had been got into the legitimate Law Courts! What a benefit to the possessors of all this wealth! I have no doubt whatever that during the past year the suitors, who have recovered this million and a quarter, have spent the whole of it, squandered it upon what they called “necessaries of life.” Look at the difference if it had only been locked up for them—say in Chancery. It would have been preserved with the greatest possible safety; accounted for—every fraction of it—in the books of the Accountant-General; and we, sir, we—the respectable practitioners in the profession—should have gone down three or four times every year to the Master’s offices to see that it was all right, and to have had a little consultation as to the best means of holding it safely for our client, until his suit was properly and equitably disposed of.”
“But, perhaps, Ficker,” I suggested, “these poor clients make better use of their own money after all than the Courts of Law and Equity could make it for them.”
“Then the costs,” said Mr. Ficker, with an attorney’s ready eye to business, “let us hear about them.”
“The total amount of costs adjudged to be paid by defendants on the amount (£752,500) for which judgment was obtained, was £199,980,” was the answer—“being an addition of 26.5 per cent, on the amount ordered to be paid.”
“Well,” said Mr. Ficker, “that’s not so very bad. Twenty five per cent,” turning to me, “is a small amount undoubtedly for the costs of an action duly brought to trial; but, as the greater part of these costs are costs of Court, twenty-five per cent, cannot be considered inadequate.”
“It seems to me a great deal too much,” said I. “Justice ought to be much cheaper.”
“All the fees to counsel and attorneys are included in the amount,” remarked the clerk, “and so are allowances to witnesses. The fees on causes amounted to very nearly £300,000. Of this sum, the Officers’ fees were, in 1848, £234,274, and the General Fund fees £51,784.”
“Not so bad!” said Mr. Ficker, smiling.
“The Judges’ fees amounted to nearly £90,000. This would have given them all £1500 each; but the Treasury has fixed their salaries at a uniform sum of £1000, so that the sixty Judges only draw £60,000 of the £90,000.”
“Where does the remainder go?” I inquired.
The County Court Clerk shook his head.
“But you don’t mean,” said I, “that the suiters are made to pay £90,000 a year for what only costs £60,000?”
“I am afraid it is so,” said Mr. Nottit.
“Dear me!” said Mr. Ficker; “I never heard of such a thing in all my professional experience. I am sure the Lord Chancellor would never sanction that in his Court. You ought to apply to the Courts above, Mr. Nottit—you ought, indeed.”
“And yet,” said I, “I think I have heard something about a Suitors’ Fee Fund in those Courts above—eh, Ficker?”
“Ah—hem—yes,” said Mr. Ficker. “Certainly—but the cases are not at all analogous. By the way, how are the other fees distributed?”
“The Clerks,” said Mr. Nottit, “received £87,283, nearly as much as the Judges. As there are 491 clerks, the average would be £180 a-year to each. But as the Clerks’ fees accumulate in each Court according to the business transacted, of course the division is very unequal. In one Court in Wales the Clerk only got £8 10s. in fees; in another Court, in Yorkshire, his receipts only amounted to £9 4s. 3d. But some of my colleagues made a good thing of it. The Clerks’ fees in some of the principal Courts’ are very ‘Comfortable.’
| “The Clerk of Westminster netted | £2731 |
| The Clerk of Clerkenwell | 2227 |
| The Clerk of Southwark | 1710 |
Bristol, Sheffield, Bloomsbury, Birmingham, Shoreditch, Leeds. Marylebone, received £1000 a-year and upwards.”
“But,” continued our friend, “three-fourths of the Clerks get less than £100 a-year.”
“Now,” said Mr. Ficker, “tell us what you all do for this money?”
“Altogether,” said the clerk, “the Courts sat in 1848, 8,386 days, or an average for each Judge of 140 days. The greatest number of sittings was in Westminster, where the Judge sat 246 days. At Liverpool, there were sittings on 225 days. The number of trials, as I have before mentioned, was 259,118, or an average of about 4,320 to each Judge, and 528 to each Court. In some of the Courts, however, as many as 20,000 cases are tried in a year.”
“Why,” said Mr. Ficker, “they can’t give five minutes to each case! Is this ‘administration of justice?’ ”
“When,” said the clerk, “a case is undefended, a plaintiff appears, swears to his debt, and obtains an order for its payment, which takes scarcely two minutes.”
“How long does a defended case take?”
“On the average, I should say, a quarter of an hour; that is, provided counsel are not employed.”
“Jury cases occupy much longer?”
“Undoubtedly.”
“Are the jury cases frequent?” I inquired—some feeling of respect for ‘our time-honored institution’ coming across me as I spoke.
“Nothing,” said our friend, “is more remarkable in the history of the County Courts than the very limited resort which suitors have to juries. It is within the power of either party to cause the jury to be summoned in any case where the plaint is upwards of £5. The total number of cases tried in 1848 was 259,118. Of these, upwards of 50,000 were cases in which juries might have been summoned. But there were only 884 jury cases in all the Courts, or one jury for about every 270 trials! The party requiring the jury obtained a verdict in 446 out of the 884 cases, or exactly one-half.
“At any rate, then, there is no imputation on the juries,” said Mr. Ficker.
“The power of resorting to them is very valuable,” said our friend. “There is a strong disposition among the public to rely upon the decision of the Barrister, and that reliance is not without good foundation, for certainly justice in these Courts have been well administered. But there may be occasions when it would be very desirable that a jury should be interposed between a party to a cause and the presiding Judge; and certainly if the jurisdiction of these Courts is extended, it will be most desirable that suitors should be able to satisfy themselves that every opportunity is open to them of obtaining justice.”
“For my own part,” said I, “I would as soon have the decision of one honest man as of twelve honest men, and perhaps I would prefer it. If the Judge is a liberal-minded and enlightened man, I would rather take his judgment than submit my case to a dozen selected by chance, and among whom there would most probably be at least a couple of dolts. By the way, why should not the same option be given to suitors in Westminster Hall as is given in the County Courts?”
“What!” exclaimed Mr. Ficker, “abolish trial by Jury! the palladium of British liberty! Have you no respect for antiquity?”
“We must adapt ourselves to the altered state of society, Ficker. Observe the great proportion of cases tried in these Courts—more than sixty per cent. of the entire number of plaints entered. This is vastly greater than the number in the Superior Courts, where there is said to be scarcely one cause tried for fifty writs issued. Why is this? Simply because the cost deters parties from continuing the actions. They settle rather than go to a jury.”
“And a great advantage, too,” said Mr. Ficker.
“Under the new bill,” said our friend, the Clerk, “Fickers clients will all be coming to us. They will be able to recover £50 in these Courts, without paying Ficker a single 6s. 8d. unless they have a peculiar taste for law expenses.”
“And a hideous amount of rascality and perjury will be the consequence,” said Mr. Ficker. “You will make these Courts mere Plaintiffs’ Courts, sir—Courts to which every rogue will be dragging the first man who he thinks can pay him £50, if he only swears hard enough that it is due to him. I foresee the greatest danger from this extension of litigation, under the pretence of providing cheap law.
“Fifty pounds,” said I, “is, to a large proportion of the people, a sum of money of very considerable importance. I must say, I think it would be quite right that inferior courts should not have the right of dealing with so much of a man’s property, without giving him a power of appeal, at least under restrictions. But, at the same time, looking at the satisfactory way in which this great experiment has worked—seeing how many righteous claims have been established and just defences maintained, which would have been denied under any other system—I cannot but hope to see the day when, attended by proper safeguards for the due administration of justice, these Courts will be open to even a more numerous class of suitors than at present. It is proposed that small Charitable Trust cases shall be submitted to the Judges of these Courts; why not also refer to them cases in which local magistrates cannot now act without suspicion of partisanship?—cases, for example, under the Game Laws, or the Turnpike Laws, and, more than all, offences against the Truck Act, which essentially embody matters of account. Why not,” said I, preparing for a burst of eloquence—“why not——”
“Overthrow at once the Seat of Justice, the Letter of the Law, and our glorious constitution in Church and State!”
It was Mr. Ficker who spoke, and he had rushed frantically from the room ere I could reply.
Having no one to argue the point further with, I made my bow to Mr Nottit and retired also.
Part XVI.
THE LAW.
THE most litigious fellow I ever knew, was a Welshman, named Bones. He had got possession, by some means, of a bit of waste ground behind a public-house in Hogwash Street. Adjoining this land was a yard belonging to the parish of St. Jeremiah, which the Parish Trustees were fencing in with a wall. Bones alleged that one corner of their wall was advanced about ten inches on his ground, and as they declined to remove it back, he kicked down the brick-work before the mortar was dry. The Trustees having satisfied themselves that they were not only within their boundary, but that they had left Bones some feet of the parish land to boot, built up the wall again. Bones kicked it down again.
The Trustees put it up a third time, under the protection of a policeman. The inexorable Bones, in spite of the awful presence of this functionary, not only kicked down the wall again, but kicked the brick-layers into the bargain. This was too much, and Bones was marched off to Guildhall for assaulting the brick-layers. The magistrate rather pooh-poohed the complaint, but bound over Bones to keep the peace. The causa belli, the wall, was re-edified a fourth time; but when the Trustees revisited the place next morning, it was again in ruins! While they were in consultation upon this last insult, they were politely waited on by an attorney’s clerk, who served them all with “writs” in an action of trespass, at the suit of Bones, for encroaching on his land.
Thus war was declared about a piece of dirty land literally not so big as a door-step, and the whole fee-simple of which would not sell for a shilling. The Trustees, however, thought they ought not to give up the rights of the parish to the obstinacy of a perverse fellow, like Bones, and resolved to indict Bones for assaulting the workmen. Accordingly, the action and the indictment went on together.
The action was tried first, and as the evidence clearly showed the Trustees had kept within their own boundary, they got the verdict. Bones moved for a new trial; that failed. The Trustees now thought they would let the matter rest, as it had cost the parish about one hundred and fifty pounds, and they supposed Bones had had enough of it. But they had mistaken their man. He brought a writ of error in the action, which carried the cause into the Exchequer Court, and tied it up nearly two years, and in the meantime he forced them nolens volens to try the indictment. When the trial came on, the judge said, that as the whole question had been decided in the action, there was no occasion for any further proceedings, and therefore the Defendant had better be acquitted, and so make an end of it.
Accordingly, Bones was acquitted; and the very next thing Bones did was to sue the Trustees in a new action, for maliciously instituting the indictment against him without reasonable cause! The new action went on to trial; and it being proved that one of the Trustees had been overheard to say that they would punish him; this was taken as evidence of malice, and Bones got a verdict for forty shillings damages besides all the costs. Elated with this victory, Bones pushed on his old action in the Exchequer Chamber to a hearing, but the Court affirmed the judgment against him, without hearing the Trustees’ counsel.
The Trustees were now sick of the very name of Bones, which had become a sort of bugbear, so that if a Trustee met a friend in the street he would be greeted with an inquiry after the health of his friend, Mr. Bones. They would have gladly let the whole matter drop into oblivion, but Jupiter and Bones had determined otherwise; for the indomitable Briton brought a Writ of Error in the House of Lords, on the judgment of the Exchequer Chamber. The unhappy Trustees had caught a Tartar, and follow him into the Lords they must. Accordingly, after another year or two’s delay, the case came on in the Lords. Their Lordships pronounced it the most trumpery Writ of Error they had ever seen, and again affirmed the judgment, with costs, against Bones. The Trustees now taxed their costs, and found that they had spent not less than five hundred pounds in defending their claims to a bit of ground that was not of the value of an old shoe. But, then, Bones was condemned to pay the costs. True—so they issued execution against Bones; caught him, after some trouble, and locked him up in jail. The next week, Bones petitioned the Insolvent Court, got out of prison, and, on examination of his schedule, his effects appeared to be £0 0s. 0d.! Bones had, in fact, been fighting the Trustees on credit for the last three years; for his own attorney was put down as a creditor to a large amount, which was the only satisfaction the Trustees obtained from perusing his schedule.
They were now obliged to have recourse to the Parish funds to pay their own law expenses, and were consoling themselves with the reflection that these did not come out of their own pockets—when they received the usual notification that a Bill in Chancery had been filed against them, at Mr. Bones’s suit, to overhaul their accounts with the parish, and prevent the misapplication of the Parish money to the payment of their law costs! This was the climax. And being myself a disciple of Coke, I have heard nothing further of it; being unwilling, as well perhaps as unqualified, to follow the case into the labyrinthic vaults of the Court of Chancery. The catastrophe, if this were a tale, could hardly be mended—so the true story may end here.
Part XVII.
THE DUTIES OF WITNESSES AND JURYMEN.
I AM not a young man, and have passed much of my life in our Criminal Courts. I am, and have been, in active practice at the Bar, and I believe myself capable of offering some hints toward an improved administration of justice.
I do not allude to any reform in the law, though I believe much to be needed. I mean to confine myself to amendments which it is in the power of the people to make for themselves, and indeed, which no legislature, however enlightened, can make for them.
In no country can the laws be well administered, where the popular mind stands at a low point in the scale of intelligence, or where the moral tone is lax. The latter defect is of course the most important, but it is so intimately connected with the former, that they commonly prevail together, and the causes which remove the one, have, almost without exception, a salutary effect upon the other.
That the general diffusion of morals and intelligence is essential to the healthy working of jurisprudence in all countries, will be admitted, when it is recollected that no tribunal, however skillful, can arrive at the truth by any other way than by the testimony of witnesses, and that consequently on their trustworthiness the enjoyment of property, character, and life, must of necessity depend.
Again, wherever trial by jury is established, a further demand arises for morals and intelligence among the people. It follows then, as a consequence almost too obvious to justify the remark, that whatever in any country enlarges and strengthens these great attributes of civilization, raises its capacity for performing that noblest duty of social man, the administration of justice.
Let me first speak of witnesses and their testimony. It is sometimes supposed that the desire to be veracious is the only quality essential to form a trustworthy witness—and an essential quality it is beyond all doubt—but it is possessed by many who are nevertheless very unsafe guides to truth. In the first place, this general desire for truth in a mind not carefully regulated, is apt to give way, oftentimes unconsciously, to impressions which overpower habitual veracity. It may be laid down as a general rule that witnesses are partisans, and that, often without knowing it, their evidence takes a color from the feeling of partisanship, which gives it all the injurious effects of willful falsehood—nay, it is frequently more pernicious. The witness who knowingly perverts the truth, often betrays his mendicity by his voice, his countenance, or his choice of words; while the unconscious perverter gives his testimony with all the force of sincerity. Let the witness who intends to give evidence worthy of confidence, be on his guard against the temptations to become a partisan. Witnesses ought to avoid consorting together on the eve of a trial; still more, discussing the matters in dispute, and comparing their intended statements. Musicians have observed that if two instruments, not in exact accordance, are played together, they have a tendency to run into harmony. Witnesses are precisely such instruments, and act on each other in like manner.
So much with regard to the moral tone of the witness; but the difficulties which I have pointed out may be surmounted, and yet leave his evidence a very distorted narrative of the real facts. Consideration must be given to the intellectual requirements of a witness. It was the just remark of Dr. Johnson that complaints of the memory were often very unjust toward that faculty which was reproached with not retaining what had never been confided to its care. The defect is not a failure of memory, but a lack of observation; the ideas have not run out of the mind—they never went into it.
This is a deficiency, which cannot be dealt with in any special relation to the subject in hand; it can only be corrected by cultivating a general habit of observation, which, considering that the dearest interests of others may be imperiled by errors arising out of the neglect to observe accurately, must be looked upon in the light of a duty.
A still greater defect is the absence of the power of distinguishing fact and inference. Nothing but a long experience in Courts of Justice, can give a notion of the extent to which testimony is adulterated by this defect. It is often exemplified in the depositions of witnesses, or rather in the comparison between the depositions which, as your readers know, are taken in writing before the committing magistrate, and the evidence given on the trial.
Circumstances on which the witness had been silent when examined before the magistrate shortly after the event, make their appearance in his evidence on the day of trial; so that his memory purports to augment inaccuracy in proportion to their time which has elapsed since the transaction of which he speaks!
I have observed this effect produced in a marvelous degree in cases of new trial, which in civil suits are often awarded, and which frequently take place years after the event to which they relate. The comparison of the evidence of the same witness as it stands upon the short-hand writer’s notes of the two trials, would lead an unpracticed reader to the conclusion that nothing but perjury could account for the diversities; and this impression would be confirmed, if he should find, as in all probability he would, that the points on which the latter memory was better supplied than the earlier, were just those on which the greatest doubt had prevailed on the former occasion, and which were made in favor of the party on whose side the witness had been called. But the critic would be mistaken. The witness was not dishonest, but had failed to keep watch over the operations of his own mind. He had perhaps often adverted to the subject, and often discoursed upon it, until at length he confounded the facts which had occurred, with the inference which he had drawn from such facts, in establishment of the existence of others, which had in reality no place except in his own cogitation, but which after a time took rank in his memory with its original impressions.
The best safeguard a witness could employ to preserve the unalloyed memory of transactions, is to commit his narrative to writing, as soon after the event as he shall have learned that his evidence respecting them is likely to be required; and yet I can hardly recommend such a course, because so little is the world, and even that portion of the world which passes its life in Courts of Justice, acquainted with what may be called the Philosophy of Evidence, that a conscientious endeavor of this kind to preserve his testimony in its purity, might draw upon him the imputation of having fabricated his narrative; and this is the more probable, because false witnesses have not unfrequently taken similar means for abiding by their fictions.
It is worthy of note how much these disturbing causes, both moral and intellectual, fasten upon these portions of evidence which are most liable to distortion. Words, as contra-distinguished from facts, exemplify the truth of this position. Every witness ought to feel great distrust of himself in giving evidence of a conversation. Language, if it runs to any length, is very liable to be misunderstood, at least in passages.
But supposing it to be well understood at the moment, the exact wording of it can rarely be recalled, unless the witness’s memory were tantamount in minuteness and accuracy to the record of a short-hand writer. He is consequently permitted to give an abstract, or, as it is usually called, the substance of what occurred. But here a new difficulty arises; to abstract correctly is an intellectual effort of no mean order, and is rarely accomplished with a decent approach to perfection. Let the juryman bear this in mind. He will be often tempted to rely on alleged confessions of prisoners sworn to by witnesses who certainly desire to speak the truth. These confessions often go so straight to the point, that they offer to the juryman a species of relief from that state of doubt, which, to minds unpracticed in weighing probabilities, is irksome, almost beyond description. Speaking from the experience of thirty years, I should pronounce the evidence of words to be so dangerous in its nature as to demand the utmost vigilance, in all cases, before it is allowed to influence the verdict to any important extent.
While I am on the subject of evidence, infirm in its nature, I must not pass over that of identity of person. The number of persons who resemble each other is not inconsiderable in itself; but the number is very large of persons, who, though very distinguishable when standing side by side, are yet sufficiently alike to deceive those who are without the means of immediate comparison.
Early in life an occurrence impressed me with the danger of relying on the most confidential belief of identity. I was at Vauxhall Gardens where I thought I saw, at a short distance, an old country gentleman whom I highly respected, and whose favor I should have been sorry to lose. I bowed to him, but obtained no recognition. In those days the company amused themselves by walking round in a circle, some in one direction, some in the opposite, by which every one saw and was seen—I say, in those days, because I have not been at Vauxhall for a quarter of a century. In performing these rounds I often met the gentleman, and tried to attract his attention, until I became convinced that either his eye-sight was so weakened that he did not know me, or that he chose to disown my acquaintance. Some time afterward, going into the county in which he resided, I received, as usual, an invitation to dinner; this led to an explanation, when my friend assured me he had not been in London for twenty years. I afterwards met the person whom I had mistaken for my old friend, and wondered how I could have fallen into the error. I can only explain it by supposing that, if the mind feels satisfied of identity, which it often does at the first glance, it ceases to investigate that question, and occupies itself with other matter; as in my case, where my thoughts ran upon the motives my friend might have, for not recognizing me, instead of employing themselves on the question of whether or no the individual before my eyes was indeed the person I took him for.
If I had had to give evidence on this matter my mistake would have been the more dangerous, as I had full means of knowledge. The place was well lighted, the interviews were repeated, and my mind was undisturbed. How often have I known evidence of identity acted upon by juries, where the witness was in a much less favorable position (for correct observation) than mine.
Sometimes, a mistaken verdict is avoided by independent evidence. Rarely, however, is this rock escaped, by cross-examination, even when conducted with adequate skill and experience. The belief of the witness is belief in a matter of opinion resulting from a combination of facts so slight and unimportant, separately considered, that they furnish no handle to the cross-examiner. A striking case of this kind occurs to my recollection, with which I will conclude.
A prisoner was indicted for shooting at the prosecutor, with intent to kill him. The prosecutor swore that the prisoner had demanded his money, and that upon refusal, or delay, to comply with his requisition, he fired a pistol, by the flash of which his countenance became perfectly visible; the shot did not take effect, and the prisoner made off. Here the recognition was momentary, and the prosecutor could hardly have been in an undisturbed state of mind, yet the confidence of his belief made a strong impression on all who heard the evidence, and probably would have sealed the fate of the prisoner without the aid of an additional fact of very slight importance, which was, however, put in evidence by way of corroboration, that the prisoner, who was a stranger to the neighborhood, had been seen passing near the spot in which the attack was made about noon of the same day. The judge belonged to a class, now, thank God! obsolete, who always acted on the reverse of the constitutional maxim, and considered every man guilty, until he was proved to be innocent.
If the case had closed without witnesses on behalf of the prisoner, his life would have been gone; fortunately, he possessed the means of employing an able and zealous attorney, and, more fortunately, it so happened that several hours before the attack the prisoner had mounted upon a coach, and was many miles from the scene of the crime at the hour of its commission.
With great labor, and at considerable expense, all the passengers were sought out, and with the coachman and guard, were brought into court, and testified to the presence among them of the prisoner. An alibi is always a suspected defence, and by no man was ever more suspiciously watched than by this judge. But then witness after witness appeared, their names corresponding exactly with the way-bill produced by the clerk of a respectable coach-office, the most determined scepticism gave way, and the prisoner was acquitted by acclamation. He was not, however, saved by his innocence, but by his good fortune. How frequently does it happen to us all to be many hours at a time without having witnesses to prove our absence from one spot by our presence at another! And how many of us are too prone to avail ourselves of such proof in the instances where it may exist!
A remarkable instance of mistake in identity, which put the life of a prisoner in extreme peril, I heard from the lips of his counsel. It occurred at the Special Commission held at Nottingham after the riots consequent on the rejection of the Reform Bill by the House of Lords, in 1831.
The prisoner was a young man of prepossessing appearance, belonging to what may be called the lower section of the middle rank of life, being a frame-work knitter, in the employment of his father, a master manufacturer in a small way. He was tried on an indictment charging him with the offence of arson. A mob, of which he was alleged to be one, had burnt Colwick Hall, near Nottingham, the residence of Mr. Musters, the husband of Mary Chaworth, whose name is so closely linked with that of Byron. This ill-fated lady was approaching the last stage of consumption, when, on a cold and wet evening in autumn, she was driven from her mansion, and compelled to take refuge among the trees of her shrubbery—an outrage which probably hastened her death.
The crime with its attendant circumstances, created, as was natural, a strong sympathy against the criminals. Unhappily, this feeling, so praiseworthy in itself, is liable to produce a strong tendency in the public mind to believe in the guilt of the party accused. People sometimes seem to hunger and thirst after a criminal, and are disappointed when it turns out that they are mistaken in their man, and are, consequently, slow to believe that such an error has been made. Doubtless, the impression is received into the mind unconsciously; but although on that ground pardonable, it is all the more dangerous. In this case, the prisoner was identified by several witnesses as having taken an active part in setting fire to the house.
He had been under their notice for some considerable space of time. They gave their evidence against him without hesitation, and probably the slightest doubt of its accuracy. His defence was an alibi. The frame at which he worked had its place near the entrance to the warehouse, the room frequented by the customers and all who had business to transact at the manufactory. He acted, therefore, as doorkeeper, and in that capacity had been seen and spoken with by many persons, who in their evidence more than covered the whole time which elapsed between the arrival of the mob at Colwick Hall and its departure. The alibi was believed, and the prisoner, after a trial which lasted a whole day, was acquitted.
The next morning he was to be tried again on another indictment, charging him with having set fire to the Castle of Nottingham. The counsel for the prosecution, influenced by motives of humanity, and fully impressed with the prisoner’s guilt on both charges, urged the counsel for the prisoner to advise his client to plead guilty, undertaking that his life should be spared, but observing at the same time that his social position, which was superior to that of the other prisoners, would make it impossible to extend the mercy of the Crown to him unless he manifested a due sense of his offences by foregoing the chance of escape. “You know,” said they, “how rarely an alibi obtains credit with a jury. You can have no other defence to-day than that of yesterday. The Castle is much nearer than Colwick Hall to the manufactory, and a very short absence from his work on the part of the prisoner might reconcile the evidence of all the witnesses, both for him and against him; moreover, who ever heard of a successful alibi twice running?”
The counsel for the prisoner had his client taken into a room adjoining the court, and having explained to him the extreme danger in which he stood, informed him of the offer made by the prosecutors. The young man evinced some emotion, and asked his counsel to advise what step he should take. “The advice,” he was answered, “must depend upon a fact known to himself alone—his guilt or innocence. If guilty, his chance of escape was so small that it would be the last degree of rashness to refuse the offer; if, on the other hand, he were innocent, his counsel, putting himself in the place of the prisoner, would say, that no peril, however imminent, would induce him to plead guilty.” The prisoner was further told, that in the course of a trial circumstances often arose at the moment, unforeseen by all parties, which disclosed the truth; that this consideration was in his favor if he were innocent but showed at the same time that there were now chances of danger, if he were guilty, the extent of which could not be calculated, nor even surmised. The youth, with perfect self-possession, and unshaken firmness, replied, “I am innocent, and will take my trial.” He did so. Many painful hours wore away, every moment diminishing the prisoner’s chance of acquittal, until it seemed utterly extinguished, when some trifling matter which had escaped the memory of the narrator, occurred, leading him to think it was possible that another person, who must much resemble the prisoner, had been mistaken for him. Inquiry was instantly made of the family, whether they knew of any such resemblance; when it appeared that the prisoner had a cousin so much like himself that the two were frequently accosted in the street, the one for the other. The cousin had absconded.
It is hardly credible, though doubtless true, that a family of respectable station could have been unaware of the importance of such a fact, or that the prisoner, who appeared not deficient in intelligence, and who was assuredly in full possession of his faculties, could be insensible to its value. That either he or they could have placed such reliance on his defence as to induce them to screen his guilty relative, is to the last degree improbable, especially as the cousin had escaped. Witnesses, however, were quickly produced, who verified the resemblance between the two, and the counsel for the prosecution abandoned their case, expressing their belief that their witnesses had given their evidence under a mistake of identity.
The narrator added that an alibi stood a less chance of favorable reception at Nottingham than elsewhere, although in every place received with great jealousy. In one of the trials arising out of the outrages committed by the Luddites, who broke into manufactories and destroyed all lace frames of a construction which they thought oppressive to working-men, an alibi, he said had been concocted, which was successful in saving the life of a man notoriously guilty, and which had therefore added to the disrepute of this species of defence. The hypothesis was, that the prisoner, at the time when the crime was committed, at Loughborough, sixteen miles from Nottingham, was engaged at a supper party at the latter place; and the prisoner having the sympathy of a large class in his favor, whose battle he had been fighting, no difficulty was experienced by his friends in finding witnesses willing to support this hypothesis on their oaths; but it would have been a rash measure to have called them into the box unprepared. And when it is considered how readily a preconcerted story might have been destroyed by cross-examination, the task of preparing the witnesses so as to elude this test, was one requiring no ordinary care and skill. The danger would arise thus:—Every witness would be kept out of court, except the one in the box. He would be asked where he sat at the supper? where the prisoner sat, and each of the other guests? what were the dishes, what was the course of conversation, and so forth—the questions being capable of multiplication ad infinitum; so that however well tutored, the witnesses would inevitably contradict each other upon some matters, on which the tutor had not foreseen that the witness would be cross-examined, or to which he had forgotten the answer prescribed. The difficulty was, however, surmounted. After the prisoner’s apprehension, the selected witnesses were invited to a mackerel supper, which took place at an hour corresponding to that at which the crime was committed; and so careful was the ingenious agent who devised this conspiracy against the truth that, guided by a sure instinct, he fixed upon the same day of the week as that on which the crime had been committed, though without knowing how fortunate it would be for the prisoner that he took this precaution. When, on cross-examination, it was found that the witnesses agreed as to the order in which the guests were seated, the contents of the dishes, the conversation which had taken place, and so forth—the counsel for the Crown suspected the plot; but not imagining that it had been so perfectly elaborated, they inquired of their attorneys as to whether there was any occurrence peculiar to the day of the week in question, and were told that, upon the evening of such day, a public bell was always rung, which must have been heard at the supper, if it had taken place at the time pretended. The witnesses were separately called back and questioned separately as to the bell. They had all heard it; and thus not only were the cross-examiners utterly baffled, but the cross-examination gave ten-fold support to the examination in chief, that is, to the evidence as given by the witnesses in answer to the questions put by the prisoner’s counsel in his behalf. The triumph of falsehood was complete. The prisoner was acquitted.
When, however, the attention of prosecutors is called to the possibility of such fabrications they become less easy of management. The friends of a prisoner are often known to the police, and may be watched—the actors may be surprised at the rehearsal; a false ally may be inserted among them; in short, there are many chances of the plot failing. This, however, is an age of improvement, and the thirty years which have elapsed since the days of Luddism have not been a barren period in any art or science. The mystery of cookery in dishes, accounts, and alibis, has profited by this general advancement.
The latest device which my acquaintance with courts has brought to my knowledge is an alibi of a very refined and subtle nature. The hypothesis is, that the prisoner was walking from point A to point Z, along a distant road, at the hour when the crime was committed. The witnesses are supposed each to see him, and some to converse with him, at points which may be indicated by many or all the letters of the alphabet. Each witness must be alone when he sees him, so that no two may speak to what occurred at the same spot or moment of time; but, with this reservation, each may safely indulge his imagination with any account of the interview which he has wit to make consistent with itself, and firmness to abide by, under the storm of a cross-examination. “The force of falsehood can no farther go.” No rehearsal is necessary. Neither of the witnesses needs know of the existence of the others. The agent gives to each witness the name of the spot at which he is to place the prisoner. The witness makes himself acquainted with that spot, so as to stand a cross-examination as to the surrounding objects, and his education is complete. But as panaceas have only a fabulous existence, so this exquisite alibi is not applicable to all cases; the witness must have a reason for being on the spot, plausible enough to foil the skill of the cross-examiner; and, as false witnesses cannot be found at every turn, the difficulty of making it accord with the probability that the witness was where he pretends to have been on the day and at the hour in question is often insuperable, to say nothing of the possibility and probability of its being clearly established, on the part of the prosecution, that the prisoner could not have been there. I should add, that, except in towns of the first magnitude, it must be difficult to find mendacious witnesses who have in other respects the proper qualifications to prove a concocted alibi, save always where the prisoner is the champion of a class; and then, according to my experience—sad as the avowal is—the difficulty is greatly reduced.
These incidents illustrate the soundness of the well-known proposition, that mixture of truth with falsehood, augments to the highest degree the noxious power of the venomous ingredient. That man was no mean proficient in the art of deceiving, who first discovered the importance of the liar being parsimonious in mendacity. The mind has a stomach as well as an eye, and if the bolus be neat falsehood, it will be rejected like an over-dose of arsenic which does not kill.
Let the juryman ponder these things, and beware how he lets his mind lapse into a conclusion either for or against the prisoner. To perform the duties of his office, so that the days which he spends in the jury-box will bear retrospection, his eye, his ears, and his intellect, must be ever on the watch. A witness in the box, and the same man in common life, are different creatures. Coming to give evidence, “he doth suffer a law change.” Sometimes he becomes more truthful, as he ought to do, if any change is necessary; but unhappily this is not always so, and least of all in the case of those whose testimony is often required.
I remember a person, whom I frequently heard to give evidence quite out of harmony with the facts; but I shall state neither his name nor his profession. A gentleman who knew perfectly well the unpalatable designation which his evidence deserved, told me of his death. I ventured to think it was a loss which might be borne, and touched upon his infirmity, to which my friend replied in perfect sincerity of heart, “Well! after all, I do not think he ever told a falsehood in his life—out of the witness’ box!”