The class that had, in Goldsmith’s words, hung round ‘our paltriest possessions with gibbetts’ never doubted its power to do full justice to the helpless creatures who tumbled into the net of the law. Until 1836 a man accused of a felony was not allowed to employ counsel to make his defence in the Court. His counsel (if he could afford to have one) could examine and cross-examine witnesses, and that was all; the prisoner, whatever his condition of mind, or his condition of body, had to answer the speech of the prosecuting counsel himself. In nine cases out of ten he was quite an unlearned man; he was swept into the glare of the Court blinking from long months of imprisonment in dark cells; the case against him was woven into a complete and perfect story by the skilled fingers of a lawyer, and it was left to this rude and illiterate man, by the aid of his own memory and his own imagination, his life on the razor’s edge, his mind bewildered by his strange and terrible surroundings, to pick that story to pieces, to expose what was mere and doubtful inference, to put a different complexion on a long and tangled set of events, to show how a turn here or a turn there in the narrative would change black into white and apparent guilt into manifest innocence. Sydney Smith, whose opinions on the importance of giving the poor a fair trial were as enlightened as his opinions on their proper treatment in prison were backward, has described the scene.
‘It is a most affecting moment in a Court of Justice, when the evidence has all been heard, and the Judge asks the prisoner what he has to say in his defence. The prisoner who has (by great exertions, perhaps of his friends) saved up money enough to procure Counsel, says to the Judge “that he leaves his defence to his Counsel.” We have often blushed for English humanity to hear the reply. “Your Counsel cannot speak for you, you must speak for yourself”; and this is the reply given to a poor girl of eighteen—to a foreigner—to a deaf man—to a stammerer—to the sick—to the feeble—to the old—to the most abject and ignorant of human beings!... How often have we seen a poor wretch, struggling against the agonies of his spirit, and the rudeness of his conceptions, and his awe of better-dressed men and better-taught men, and the shame which the accusation has brought upon his head, and the sight of his parents and children gazing at him in the Court, for the last time perhaps, and after a long absence!’[371]
Brougham said in the House of Commons that there was no man who visited the Criminal Courts who did not see the fearful odds against the prisoner. This anomaly was peculiar to England, and in England it was peculiar to cases of felony. Men tried for misdemeanours, or for treason, or before the House of Lords could answer by the mouth of counsel. It was only in those cases where the prisoners were almost always poor and uneducated men and women, as Lord Althorp pointed out in an admirable speech in the House of Commons, that the accused was left to shift for himself. Twice, in 1824 and in 1826, the House of Commons refused leave to bring in a Bill to redress this flagrant injustice, encouraged in that refusal not only by Canning, but, what is much more surprising, by Peel.
The favourite argument against this reform, taking precedence of the arguments that to allow persons the aid of counsel in putting their statement of fact would make justice slower, more expensive, and more theatrical, was the contention that the judge did, in point of fact, represent the interest of the prisoner: a confused plea which it did not require any very highly developed gift of penetration to dissect. But how far, in point of fact, were the judges able to enter into the poor prisoner’s mind? They had the power of sentencing to death for hundreds of trivial offences. It was the custom to pass the brutal sentence which the law allowed to be inflicted for felonies, and then to commute it in all except a few cases. By what considerations did judges decide when to be severe? Lord Ellenborough told Lauderdale that he had left a man to be hanged at the Worcester Assizes because he lolled out his tongue and pretended to be an idiot, on which Lauderdale asked the Chief Justice what law there was to punish that particular offence with death. We learn from Romilly’s Memoirs[372] that one judge left three men to be hanged for thefts at the Maidstone Assizes because none of them could bring a witness to his character.
The same disposition to trust to the discretion of the judge, which Camden described as the law of tyrants, explains the vitality of the system of prescribing death as the punishment for hundreds of paltry offences. During the last fifty years the energy of Parliament in passing Enclosure Acts had been only rivalled by its energy in creating capital offences. The result was a penal code which had been condemned by almost every Englishman of repute of the most various opinions, from Blackstone, Johnson, and Goldsmith to Burke and Bentham. This system made the poor man the prey of his rich neighbours. The most furious punishments were held in terrorem over the heads of prisoners, and the wretched man who was caught in the net was exposed to all the animosities that he might have provoked in his ordinary life. Dr. Parr put this point writing to Romilly in 1811.
‘There is, indeed, one consideration in the case of bad men which ought to have a greater weight than it usually has in the minds of the Judges. Dislike from party, quarrels with servants or neighbours, offence justly or unjustly taken in a quarrel, jealousy about game, and twenty other matters of the same sort, frequently induce men to wish to get rid of a convicted person: and well does it behove every Judge to be sure that the person who recommends the execution of the sentence is a man of veracity, of sense, of impartiality and kindness of nature in the habitual character of his mind. I remember hearing from Sergeant Whitaker that, while he was trying a man for a capital offence at Norwich, a person brought him a message from the late Lord Suffield, “that the prisoner was a good-for-nothing fellow, and he hoped the Judge would look to him”; and the Sergeant kindled with indignation, and exclaimed in the hearing of the Court, “Zounds! would Sir Harbord Harbord have me condemn the man before I have tried him?” What Sir Harbord did during the trial, many squires and justices of the peace, upon other occasions, do after it; and were I a Judge, I should listen with great caution to all unfavourable representations. The rich, the proud, the irascible, and the vindictive are very unfit to estimate the value of life to their inferiors.’[373]
We can see how the squires and the justices would close in round a man of whom they wanted, with the best intentions in the world, to rid their parish, woods, and warrens, when the punishment he was to receive turned on his reputation as it was estimated by the gentlemen of his neighbourhood. Was Sir Harbord Harbord very far removed from the state of mind described in the Sixth Satire of Juvenal?
‘“Pone crucem servo.” “Meruit quo crimine servus
Supplicium? quis testis adest? quis detulit? Audi:
Nulla unquam de morte hominis cunctatio longa est.”