[Many persons were not aware, and thousands are not at the present time, that when a verdict of "Wilful murder" is pronounced a Judge has no alternative but to read the prescribed sentence of death. If this were not so, the situation would be almost intolerable, for who would not avoid, if possible, deciding that the irrevocable doom of the prisoner should be delivered? In many cases the feelings of the Judges would interfere with the course of justice, and murderers would receive more sympathy than their victims, while fiends would escape to the danger of society.
And yet that Judges have sympathy, and that it can be, and is, in these days properly exercised, the following story will testify. I give the story as Lord Brampton told it.]
In a circuit town a poor woman was tried before me for murdering her baby. The facts were so simple that they can be told in a few words. Her baby was a week old, and the poor woman, unable to sustain the load of shame which oppressed her, ran one night into a river, holding the baby in her arms. She had got into the water deep enough to drown the baby, while her own life was saved by a boatman.
The scene was sad enough as she stood under a lamp and looked into the face of the policeman, clutching her dead child to her breast, and refusing to part with it.
At the trial there was no defence to the charge of wilful murder except one, and that I felt it my duty to discountenance. I think the depositions were handed to a young barrister by my order, and that being so, I exercised my discretion as to the mode of defence. In other words, I defended the prisoner myself.
In order to avoid the sentence that would have followed an acquittal on the ground of insanity, which would have entailed perhaps lifelong imprisonment, I took upon myself to depart from the usual course, and ask the jury whether, without being insane in the ordinary sense, the woman might not have been at the time of committing the deed in so excited a state as not to know what she was doing.
I thus avoided the technical form of question sane or insane, and obtained a verdict of guilty, but that the woman at the time was not answerable for her conduct, together with a strong recommendation to mercy. This verdict, if not according to the strictest legal quibbling, was according to justice.
I was about to pronounce sentence in accordance with the law, which it was not possible for me to avoid, however much my mind was inclined to do so, when the pompous old High Sheriff, all importance and dignity, said,—
"My lord, are you not going to put on the black cap?"
"No," I answered, "I am not. I do not intend the poor creature to be hanged, and I am not going to frighten her to death."