A Whim, and Its Consequences / Collection of British Authors Vol. CXIV

by G. P. R. James

Sir ---- every one remarked, was exceedingly pale; and before he rose he turned over the papers under his hand several times, with a look of nervous anxiety; but the moment he was upon his feet, that look passed away; he raised his head high; he cast back his shoulders as if for full breath, and, fixing his fine and speaking eyes upon the jury, began,

"My lord and gentlemen of the jury,--The learned sergeant who has conducted the prosecution assured you that to do so was the most painful task of his life. I doubt it not in the least; for it must be a terrible task indeed to become the public accuser of such a man as the prisoner, with even a doubt upon the mind of his guilt: and how many doubts must have existed in this case? If such were the feelings of my learned friend, judge, gentlemen of the jury, what must be mine, when, in rising to defend the prisoner at the bar, I know that upon my feeble efforts depends not only the life of an innocent man, not only the life of one who is an ornament to the society in which he moves, but the life and honour of my dearest friend! With what anxieties must I be oppressed; how terrible must be the responsibility when the slightest failure of my powers, the least oversight on my part, any weakness, any indiscretion, may condemn to death one whom I love as a brother--one whom I know to be innocent, as I have trust in God! I am no paid advocate, retained to defend a bad cause; I am not a counsel doing merely his professional duties: but I am a friend standing forth in defence of a friend; an honest man raising his voice to save an innocent one. Terrible are the difficulties which all these cases present: more than ordinary are the difficulties in the present case; and all these are aggravated in an enormous degree by the very feelings of friendship which exist between myself and the prisoner, by the doubts and fears of myself, which make me tremble at my own incompetence, by the zeal which perplexes, by the eagerness which confounds. The burden would be too great, gentlemen of the jury; it would overwhelm me; but happily there are circumstances which lighten the load. I see upon the bench one of the most learned and clear-sighted of those judges who are an honour to the nation to which they belong: I see in that box a body of Englishmen well calculated by judgment and experience to distinguish between truth and falsehood; between the factitious glozing of an artificial oratory, and the simple eloquence of right and conviction: and I hold under my hand the means of establishing, beyond all doubt, the innocence of my friend, if friendship do not deprive me of reason, if enthusiasm do not paralyse my tongue.

"I will now, however, do my best to grapple with the case as presented to you by my learned friend; and, doing him full justice for his high eloquence, believing most sincerely that he has stated nothing but what he was instructed was true, I will still venture to say, that a more terrible misrepresentation was never made to an English jury. Now, in the very first instance my learned friend asserted that the prisoner at the bar is of a sharp and vindictive disposition; and he said that he should be able to show that such was the case. Gentlemen, I will ask you, has he proved that fact? I will ask you if he has made any attempt to prove it? I will ask you if his own witnesses have not proved the exact reverse; if they have not shown that the prisoner is of a kind and gentle disposition, winning the love and esteem of all around, high and low, rich and poor? and, whether we see him teaching the uneducated child, saving the drowning boy, or tending him in his after sickness, I will ask, if all that has been proved does not excite admiration, and sympathy, and respect? Cast from your minds, then, such unjustified and vague expressions: look upon his general character as it is shown by the very evidence for the prosecution, tender rather than sharp, benevolent instead of vindictive. But the insinuation, gentlemen of the jury, has been made, though not supported; and it forces me to establish the contrary by proofs. Something was said too, gentlemen, of a duel between the prisoner and Viscount Overton, and a connexion must have instantly established itself in the minds of the jury, between that duel and the sharp and vindictive character ascribed to the prisoner. But, gentlemen, I will place that honourable nobleman in the witness-box, to speak to the character of the prisoner. He shall himself tell you what he thinks of the circumstances which produced the duel; and you shall judge from facts, not from insinuations. All this shall be triumphantly swept away, and I will not leave a vestige of such charges against my friend. I will call the old servants of his father's house, I will call the tenants, the parishioners, the neighbours. Their evidence need not be long, but it will be conclusive to show that a more honourable, upright, generous, kind-hearted man never existed; full of noble enthusiasms, gentle in habits, benevolent in disposition, incapable of a base or a cruel action.

"So much, gentlemen of the jury, for the first part of the charge: for the general and vague insinuation, made for the purpose of preparing your minds to regard the prisoner as a man of blood. But it seemed necessary to my learned friend; and most necessary indeed it was to his case, to show some apparent motive for the crime of which the prisoner is accused; and a letter has been read in evidence to prove that there was some dispute between the prisoner and the murdered man. That letter shall be fully explained before I have done; and you shall see how ridiculously petty is the motive assigned for so great an offence. But besides that letter, allusion was made to former disputes between the unfortunate Mr. Roberts and the prisoner, which, though not proved, may have had some influence upon your minds. I will show that no such disputes ever existed; that the two were on the best and most kindly terms, that they had been so through life; and that those causes of disgust which had induced the prisoner to quit his brother's mansion were identical with the causes which induced Mr. Roberts to give notice to Sir William Winslow that he was about to leave his employment. In short, I will prove that Mr. Winslow and the man he is accused of murdering, were acting on the most friendly terms together; and that the letter which is supposed to prove that a dispute existed, was written in cold terms merely as an authority to Mr. Roberts for disregarding any orders he might have received from his employer to meddle with things in which that employer had no right. It was, in short, a formal notice to him to respect the rights of the prisoner, without any regard to the illegal directions of a third party. I shall be able to prove that Mr. Roberts possessed the full confidence of Mr. Chandos Winslow; that he was acting with due regard for Mr. Winslow's interests, and that he had actually applied or intended to apply to that gentleman for an authority or warning to respect, in his capacity of agent for Sir William Winslow, the rights of him, the prisoner at the bar. Thus the pretence of motive furnished by the letter which he, Mr. Roberts, had himself desired, falls entirely to the ground, and leaves the accusation totally without foundation, except such as a very doubtful train of circumstantial evidence can afford. Mr. Roberts, in fact, was the only confidant of the prisoner at the bar, the only person to whom he confided his address, when disgust at some injuries he imagined he had received, and a desire to mingle as an equal with classes in which he had long taken a deep interest as a superior, led him to quit his high position in society, and accept the humble station of gardener to Mr. Arthur Tracy, of Northferry. Was this, gentlemen of the jury, like long disputes and acrimonious bickerings, ending in malevolence and murder? Is that the man to entertain such passions?--to commit such an act?

"But I will make no appeal to your feelings; I will address myself to your judgment only. I will break through this chain of circumstantial evidence; I will show that it cannot affect the prisoner, that it is not applicable to him. I will proceed logically with my inferences; though it may be somewhat out of the usual course. I will first convince you that the prisoner was not a man likely to commit such a crime, by the testimony of many witnesses. I will next prove that there was no earthly motive for his committing that crime; but every motive for his not doing so: and, in the end, I will establish beyond all question that it was impossible that he could have committed it. Before I proceed to call my witnesses, however, it may be necessary to examine closely the evidence already adduced, in order that we may separate the facts clearly and distinctly proved from an immense mass of irrelevant matter. In so doing, I shall not attempt to explain every fact and every circumstance; I shall not seek to prove why the prisoner did this, or why he did that. To do so would occupy unnecessarily the time and patience of the court. For, surely, if I establish beyond all doubt, those three great points I have named--That the prisoner was not a man likely by character, disposition, and previous conduct, to commit such a crime; secondly, that he had no possible motive for committing it; but the reverse: and thirdly, that if the testimony already given be not altogether false, he could not have committed it, that will be quite sufficient for the satisfaction of the court.

"The evidence, gentlemen of the jury, divides itself into two principal parts: that which relates to the death of Mr. Roberts: and that by which it is attempted to connect his death with some act of the prisoner. The simple facts regarding the death of the unhappy victim of some other man's bad passions are clearly proved in evidence, by the various witnesses you have heard in their examination and cross-examination. Their testimony has not been shaken in the least; and I do not wish to shake it. In considering this evidence it is of the utmost importance to the establishment of truth, that everything should be precise; and I must therefore impress the facts upon your minds that you may take them in conjunction with the evidence I shall myself offer, and from the whole draw the only deduction which can logically be drawn: that it is impossible the prisoner could have committed the act with which he is charged. You have heard the testimony of James Wilson, the footman of Mr. Tracy, the last person that we know of who spoke with Mr. Roberts, before the murder; with the exception of Jones, the valet. This man stated at first, that Mr. Roberts called about five o'clock; but afterwards admitted, on cross-examination, that it was certainly ten minutes past five. It might have been more, but I am contented with that. The witness Jones corroborated the testimony of James Wilson, and fixed the time of Mr. Roberts's call at ten minutes or a quarter after five. These statements are not shaken. It was at least ten minutes past five when the murdered man was at Mr. Tracy's house. He stayed apparently a very short time there; but we find from Wilson's evidence in answer to the court, that it would take ten minutes more to go from the house to the spot where the murder was committed. We will not assume that any time was lost on the road. It was, therefore, at least twenty minutes after five before the criminal act was perpetrated. My learned friend has attempted to fix the period of the murder. I will try to do the same thing; but somewhat more accurately. The little boy, Timothy Stanley, in evidence which, from its perspicuity, simplicity, and truthful straightforwardness, you must all recollect, has shown that, at half-past five o'clock the murder had been actually committed. I take the time by Northferry clock to be the real time--at least it must be assumed to be so for our purposes; and I may as well inform the jury, here, that I last night sent off an express to Northferry to ascertain what difference, if any, exists between the clock at Mr. Tracy's house and that of Northferry church. By this man I shall prove that there is but one minute difference between the church clock and that in the hall so often alluded to, although that clock has not been set for one week, owing to Mr. Tracy's unfortunate absence. But I shall be in a condition to prove that it was set every day at noon precisely, during that gentleman's residence at Northferry, and set by the church clock. Thus it appears by testimony, which has not at all been shaken, that the murder of Mr. Roberts must have taken place between twenty minutes and half-an-hour after five; that at ten minutes past five he was in Mr. Tracy's hall, and at half-past five was seen murdered at the end of the grounds, the distance between the two places being, I see by the plan, forty yards less than half-a-mile in a direct line, and rather more than three quarters of a mile by the walks. The body was not found till past ten o'clock, or more than four hours and a half after it was seen by the boy. At this time it was quite cold and stiff. The surgeon has proved that death was occasioned by an incised wound on the head, penetrating the brain, of a kind which might be given by a Dutch hoe, and a Dutch hoe was found on the ground near the body, with blood and gray hair upon it. There can be little doubt that this hoe was the instrument by which the murderer perpetrated his crime. That it was so, struck the prisoner at once, as you have heard; and moreover that he acknowledged the hoe to be his, and said that he had left it leaning against one of the pillars of the little temple over the fish-pond. These are the admitted facts concerning the murder, of which there can be no doubt.

"We will now turn to the circumstantial evidence, by which it is attempted to connect the prisoner with the crime. Now my learned friend has repeated to you an old axiom of law that circumstantial evidence is often more convincing than direct evidence; and he has reasoned ably upon that question. Nevertheless, the numerous instances of awful injustice which have been committed in consequence of giving too much weight to circumstantial evidence, has shaken the confidence of many of the wisest and most learned men in the reasoning by which the axiom is supported, and in the justice of the axiom itself. I need not call to your mind a sad instance which occurred not many years ago in France, where an amiable and excellent man, mayor of a great city, after submitting to the knife of the guillotine, was proved to be perfectly innocent; and very many such instances are on record; but I do believe that after the trial which now occupies this court has come to its conclusion, all thinking men will regard circumstantial evidence with much greater doubt than they have hitherto done, and juries will pause ere they take upon themselves the frightful responsibility of sending a fellow-creature to death while the shadow of a doubt remains. I say that the result of this trial will show that too great a dependence on circumstantial evidence may often betray wise and good men into acts which must burden their consciences for all their remaining days. I wish to produce this effect. I wish to put in the very strongest point of view, not only for the present occasion, but for future instruction, the very fallible nature of circumstantial evidence; and therefore in this instance I shall deal with it in a peculiar manner. I will not attempt to struggle with it; I will not try to shake it; I will not even descend to explain it. It shall stand in full force, bearing against my client to the very last; but then I will prove that it is utterly worthless, that it does not affect him even in the slightest degree; that there is not even a possibility of his having committed the crime. I will explain not one of all the circumstances that tell against him; and yet, without quitting that box, you shall give a verdict of acquittal.

"Nevertheless, it will be necessary to examine the evidence, in order to extract from it those facts which have a real bearing on the case, and which fall into the line of defence. The rest I shall leave intact, without attempting to weaken it in the slightest degree. The evidence by which it is attempted to connect the prisoner with the crime, divides itself into three heads. One portion is that which shows that he was proceeding towards the spot where the dead body was found, nearly at the time when the murder must have been committed. The second refers to the traces of the deed left by the murderer, or supposed to have been left by him--the hoe with which the deed was done, the steps to and from the haw-haw and in the ditch. The third, relates to the demeanour and personal appearance of the prisoner after the murder had been committed. Under the first head we find from the witness, William Sandes, that he met the prisoner as he was going home from his work. The prisoner was going down towards the scene of the tragedy. The witness at first asserted, that it was about five o'clock when he met the prisoner, very naturally not wishing to make it appear that he had quitted his work before the proper time. But in cross-examination we got out of him, that he had on previous occasions left the garden earlier than he ought to have done, and had been reprimanded by the prisoner. He also admitted that it was broad daylight, and might be a quarter before five. Thus the time at which Sandes met the prisoner was rather more than half-an-hour before the murder could have been committed. I beg you to mark this fact well, gentlemen of the jury, for it is important. Then we have the evidence of the old woman, Humphries. She shows that he came into his cottage about half-past four, on the day of the murder, and went out again exactly at five, by a clock which is proved to have been on that night, from ten minutes to a quarter-of-an-hour too fast, thus corroborating the statement on cross-examination of the witness, Sandes. You will recollect, gentlemen of the jury, that on the fifth of February the sun sets before five o'clock. The witness, Sandes, says, that when he met the prisoner he does not think the sun was down; that it was broad daylight. The good woman, Humphries, declares that the prisoner went to take a look round the grounds before it was dark, all showing that it must have been considerably before five o'clock when he went out. Now, the murder could not have been committed before twenty minutes past five. This is the evidence tending to show that the prisoner was in the grounds and went towards the fatal spot some time before the crime was perpetrated. He never denies, or has denied, that such was the case. He admitted it in conversation with Mr. Tracy. He said he had been speaking to Miss Tracy within a very few yards of the place where the body was found. And here I must remark upon two circumstances well worthy of your consideration. First: that the counsel for the prosecution have not thought fit to call Miss Tracy; but threw upon us the burden of so doing. Now, Acton, the gardener, might have no hesitation in calling that young lady; but, Mr. Chandos Winslow may have many reasons for not subjecting one towards whom he entertains high respect--may I not say affection?--to the torturing cross-examination of an adverse counsel. Suffice it, gentlemen of the jury, that he refuses to call her; and, respecting his motives, I have ventured to argue, but not to insist.--She should have been called for the prosecution. The other important fact to which I must call your particular attention is this, that although it is proved the prisoner was in the grounds a short time before the murder, we have it in evidence that some one else was in the grounds exactly at the time when the murder must have taken place. Michael Burwash, has sworn, that some ten minutes or quarter-of-an-hour after Mr. Roberts went to the place where he met his death, he saw some person enter the house from that very direction, walking in a quick and hurried manner; that he passed through the green-house instead of taking the usual entrance, as if he desired to avoid observation. Who was it? The witness says it was not Mr. Tracy, or General Tracy; and certainly not the prisoner at the bar. I do not wish to throw any imputations; but the fact is proved, that there was some man, not the prisoner, in the grounds at the very time the murder must have been committed.

"Now I come to the second head of evidence--the traces of the murderer's progress. The hoe has been admitted to be the prisoner's by himself in this court. More may be very safely admitted; namely, that he carried it out with him in his hand, that he had it out with him when he met the witness, Sandes, and that he rested it against one of the pillars while he spoke with Miss Tracy, leaving it there when he went away. What more natural than to suppose, that the murderer, seeing it there, snatched it up to effect his criminal design? The footmarks in the grass, I not only deny to have been the prisoner's, but I must say, that it is very nearly proved they were not. It is sworn that there were but two lines, one coming and one going, between the haw-haw and the spot; and it is admitted by the witness Taylor, that one of the men who accompanied Mr. Tracy at night went from the place where the body was found to the haw-haw and back. It is also shown that the ground was so soft as to receive the impression of any foot that trod upon it. These steps then could not have been the prisoner's; but servants, and constable, and all, seem to have made up their mind that the prisoner was the murderer, and the shoes of no other person were examined. Now, gentlemen of the jury, I will touch upon the third head of evidence--the prisoner's appearance and demeanour after the murder. He returned to his cottage, it is shown, somewhat after six o'clock, and I shall not in the slightest degree attempt, as I told you I would not, to lessen the weight of this evidence, nor even to explain the facts. I am precluded by his most positive injunctions from doing so. I admit then that he returned in a state of very considerable agitation; that he was annoyed, harassed, vexed; that there was blood upon his hands and upon his coat, and I will give no explanation of these facts. He forbids me to give the true one; and I will give no other. Were there no means of establishing his innocence, this refusal of explanation might create a reasonable doubt in your minds; but that doubt would be far from justifying you in a verdict of guilty. Any one can conceive a thousand circumstances which might have produced that agitation, and which might have covered his hands and stained his coat with blood, but which the most honourable motives would prevent him from explaining. The proof must always lie with the other side; the prosecutor is bound to leave no reasonable doubt in your minds. It is not enough to produce a doubt of the prisoner's innocence; and therefore it is I say that though if no means existed of proving the prisoner to be not guilty, this refusal of explanation might produce a suspicion that he was guilty, yet that suspicion would be by no means sufficient to justify a verdict against him.

"But, gentlemen of the jury, I will not be satisfied with this. My friend must quit that dock without a stain upon his character. It must be in his case as in that of the famous Lord Cowper, who was tried in his youth for murder upon evidence much stronger than any which has been adduced on this occasion, who triumphed over a false accusation, left the court with honour unsullied, and rose to the very highest rank in his profession, holding the first official station in the realm beneath the crown. Nothing will content me but to see my friend so acquitted; and therefore I will not plead the benefit of a doubt. Nothing will content him but such an acquittal; and therefore he forbids me to urge upon the court a fatal flaw which I have discovered in the indictment. But I can ensure that acquittal; and before I have done, I will prove, upon evidence unimpeachable, clear, distinct, and positive, that the prisoner was far distant from the spot at the moment the crime was committed; that it was, in short, physically impossible that he could have had any share in it. I will prove it, by persons above all suspicion of collusion, without motive, without object of favouring or assisting him. I will show, I say, not alone that the man round whom such a long chain of circumstantial evidence has been entwined, did not commit the crime with which he is charged; but that he could not have committed it; and I will call upon you for such an immediate and unhesitating verdict as will leave his name and honour clear of every imputation. Gentlemen of the jury, there is a joyful task before you, after you have performed a long and arduous one. Painful, yet mingled with satisfaction, have been the duties which I have taken upon myself. At first the awful responsibility overwhelmed me; the anxiety for my client, the apprehension for my friend, the sense of my own incompetence, the tremendous stake in peril, seemed too much for my mind; but every step as I have proceeded has strengthened my confidence and reinvigorated my resolution. Knowing my friend's innocence, seeing the proofs of it accumulate, perceiving that the case for the prosecution crumbled away under cross-examination, and assured that without a word for the defence there was in reality no case to go to a jury, I felt that my own weakness could not much affect the result, and that his safely depended not on such feeble powers as mine. To God and to his country he has appealed; to God and to his country I leave his fate, certain that the one will defend, where my voice fails, the other do him justice, whatever powers be arrayed against him."