If the wilful suppression of evidence by the prosecution had ended with Taylor the case would have been infamous enough; the Crown would have showed that it prosecuted for victory, not for truth, for I take it to be the unquestioned duty of a prosecutor, more especially when he is backed by the Crown authorities and the Home Office, not merely to squabble for a petty triumph on a prisoner charged with murder, or to attempt to higgle a jury out of an adverse verdict, but to present not a part but the whole case fairly before the public—the features favourable to a prisoner as well as those that are unfavourable, the weak portions of the accusations against him as well as those that are strong, so that the jury, who are (in theory) his judges, may see and know every circumstance, however minute, and, from an aggregate of the whole, come to a right conclusion as to the verdict which they are to pronounce. But this salutary rule was not followed by the Crown prosecutors in the present case; they wilfully deceived and misled the counsel for my brother, and by this trick, which I shall presently expose, they deprived the prisoner of two of the most material witnesses, who could prove his innocence, that it was possible for man to have. The first of these witnesses was a man named Henry Cockayne. Your lordship remembers the questions which Serjeant Shee put to that wretched Bates; and you recollect also, I doubt not, the artful way in which he answered those questions. It was of importance to my brother to show for what purpose he had purchased, and in what manner he had used, the strychnia, which he never denied, and does not now mean to deny, that he bought from Roberts on the Tuesday.
He had a number of valuable brood mares in a paddock, separated from the adjoining land only by a thin fence, over which the dogs were in the habit of leaping and hunting these animals (nine in all), so much so that even Bates was obliged to admit that one of them, the “Duchess of Kent,” had slipped her foal; and it is a fact that “Goldfinder” had suffered from a like mishap, though Bates refused to acknowledge it. Indeed, Bates would scarcely admit anything, or give a direct reply to any of the questions put to him. Here is an example, taken from the verbatim report of the trial—“Can you give me any notion of their value?” “I do not pretend,” answers Bates, “to tell the value of the stock myself.” No one had asked him to do so, yet this stable-boy, brewer, farmer, or whatever else he chooses to call himself, who has been about horses all his life, could not give Serjeant Shee a notion of the value of these brood mares. “Do you know,” pursued the serjeant, “that one of them sold for 800 guineas?” Now, Bates knew this as well as my brother himself, but mark his answer—“I have heard so.” Again, he is asked—“Were any of them in foal shortly before or at the beginning of the month of November?” Bates, you will remember, was in the stables and paddocks every day, yet he answers this question, “I cannot say whether they were or not. I should suppose there were some in foal.” A witness who answered in this way would probably have been rebuked by any fair judge, and ordered to answer the questions put to him; but your lordship, who was so dreadfully sarcastic on Mr. Nunneley and Dr. Macdonald, had no word of reproof for Bates. This man was again asked, “had any complaint been made about dogs going about the paddock?” Mark the artful way in which he evaded this interrogatory—“I think I once said to Harry, ‘The turf seems a good deal cut up here; how is it?’ ” Your lordship sees Bates had not been asked what he had said to Harry (this was Cockayne), but he had been asked about repeated and well-known complaints made by my brother as to the way in which his mares were constantly hunted by the dogs in the neighbourhood; and you now see, though you would not at the trial, the evasive and equivocating way in which he replied. Serjeant Shee then proceeded—“What did you see on the turf that induced you to make that observation?—I saw it cut up, which I supposed to be with horses’ feet, for they could not cut it up without they galloped. Did you attribute that to anything?—I attributed it to the mares galloping about. Had you any reason to think they had been run by dogs?—I never saw any dogs run them.” This was no answer to the question, but your lordship said not a word, and this Bates, who was with Day in the paddock, who, to use the words of the Attorney-General, “was a hanger-on of Palmer’s, working in his stables,” could not tell, as he pretended, how it was that the mares were galloping about and cutting up the turf. The serjeant then proceeded—“Did Harry keep a gun there?—I have seen a gun there. (This again was not a direct answer, but an evasion.) Did he keep a gun, which belonged to his master, for any purpose?—I have seen a gun at the paddock. Did it belong to his master?—I cannot say. Did you ever see it used?—No. Was it in a condition to be used?—I never had it in my hands to examine it.” In ordinary cases I am told that where a witness misconducts himself in this manner, the Crown immediately gives him up, and the judge informs the jury that no reliance is to be placed on his testimony. But, so far from abandoning him, the Attorney-General relied all through upon this man, and pressed against my brother the effect of the evidence which he gave. Now, your lordship was told at the trial, by Serjeant Shee, that the object for which the poison was purchased was to destroy these dogs. Bates was found to admit that a gun was kept in the stables, and though he cunningly kept back for what purpose the gun was used, yet was there another witness on the back of the indictment who had been examined before the coroner, and who was present in the Court, of whose evidence your lordship was well aware, for it was in the depositions, and this witness the Crown withheld from the jury. Had Cockayne been called, as he ought to have been called, he would have proved that he kept a gun loaded in the stable, by order of my brother, to shoot the dogs that worried his brood mares; that he had also threatened to poison them, that the strychnia was purchased for that object, and that he had missed dogs since then which had been in the habit of prowling about the paddock and hunting the mares. That my brother left poisoned food about the place is a matter which can be proved only by himself, for these things are not always trusted to servants; and, as it is a positive medical fact that animals to which this poison has been given go away into secret, concealed, and quiet places, where they die undiscovered, and would be mortally attacked in so short a time that they could not get to their own homes. Is it not almost demonstrated that this has been the case here, and that my brother is thus made the victim of circumstances, harmless in themselves, but which, having occurred at this precise period, tell now with fearful weight upon his unfortunate case? The Crown may cry out, “Produce the dogs, and show us the strychnia in them.” With how much more freedom may the condemned man say, “Produce the poison from Cook’s body before you hang me to satisfy a medical theory invented for this trial and broached against me by a deadly foe!”
In the same way, the non-discovery of the money which Cook is said to have possessed at Shrewsbury was urged by your lordship as startling evidence against my brother, and you signified to the jury, by gestures, by looks, and shakes of the head, that my brother had fraudulently got possession of that money, and poisoned Cook in order to conceal the fact. But your lordship was well aware at the time, for it was in the depositions of Saunders, who was also in Court, and who had been examined before the coroner and the Grand Jury, that Cook had sent for Saunders on the Monday before his death, that he had paid him £10 (his account), and excused himself for not paying any more, by stating that he had given my brother all his money to take with him to London, to settle his affairs. Thus the disposal of the money was accounted for by Cook himself; and Saunders, whose testimony was thus highly favourable to my brother, ought to have been called to prove this fact. But, strange to say, Saunders, though in Court, was not called; he waited until the end of the case for the prosecution, and then was sent away by the Crown lawyers, who not only thus deprived the prisoner of the advantage of his testimony, had they called Saunders for the prosecution, but absolutely put it out of the power of the prisoner to call him for the defence by sending him away into the country at the last moment, when they had all along left the counsel for the defence under the idea that it was intended to examine Saunders as a witness on behalf of the prosecution. A more scandalous trick than this, I believe, was never committed, and I do not envy the feelings of the parties who perpetrated it.
It may be asked, why did not Mr. Smith, an able, indefatigable, and skilful lawyer, get Cockayne and Saunders put into the box as witnesses for the prisoner? My lord, the answer is already given. They were the witnesses for the Crown; they were kept in London, in the custody of the Crown, until after the case for the prosecution had terminated; they were then sent out of London, into a distant part of England not so easily accessible as was needed by the prisoner; and if we are to take your lordship’s manifest and angry impatience at the ten minutes’ delay in calling witnesses for the defence, which occurred on the morning of Saturday, the tenth day of the trial, as indicative of your feelings, we may be very certain that if you so chafed at that brief interval, repeatedly during those few minutes asking Serjeant Shee if he could not go on—if, I say, we are to consider that angry haste significant of anything, we may very well conclude that you would not have waited until Saunders and Cockayne were brought up from the centre of England, if, indeed, it was possible for the prisoner at all to discover their exact lodgings at the time. I have myself heard, on many occasions, in Courts of justice where judges themselves called witnesses whose names were in the indictment and order them to give their evidence for the Crown. But this was where the judges were not biassed against the accused—where they had no desire to become the objects of public praise or to prostitute their high places to the low desire of popularity acquired by pandering to a cry for blood. Why your lordship did not follow the well-known precedents of law in my brother’s case is best known to yourself. Yet there are many of the public also who can form a pretty accurate guess as to your real motives. Let me revert, however, to the subject, from which this is a digression, and pursue the confession made by Dr. Taylor of the general inaccuracy of medical men when they are retained to carry out a theory by the prosecution. These, which I have quoted, are not the only instances in which mistakes have been made for want of proper caution. Taylor (p. 63) mentions the case of M. Pralet, where “several medical witnesses deposed that the deceased had died from prussic acid, administered to him by M. L’Heritier, the accused. Orfila was requested to examine the medical evidence, and found it extremely defective. The inferences drawn from the application of the medical tests were highly improper, and the results were extremely negative. Had it not been for the interference of Orfila, it is most probable that the accused would have been convicted, more from the strong medical opinions against him than from the medical facts of the case. The witnesses appear to have acted on the principle that the whole of their duty consisted in rendering the charge of poisoning probable, whereas we shall hereafter see that no person can be convicted of this crime on mere probability. The fact of poisoning must be made reasonably certain either by medical or moral evidence, or by both combined.” He cites also (p. 110) a case reported by Anglada, in which there were circumstances of grave suspicion, though the party suspected was wholly innocent. “A lady, in perfect health, while supping with her husband and family, complained, after having taken two or three mouthfuls, of severe pain in the region of her heart. She fell back in her chair and died instantly. The parties not having lived on the best of terms, the husband was openly accused of having been accessory to the poisoning of his wife—a circumstance which was rendered still more probable in the opinion of his neighbours by the fact that the wife had lately made a holograph will in his favour. One of his servants, with whom he was said to live in adultery, was arrested, and a paper containing a white powder was found in her possession. The husband endeavoured to compromise the affair by offering to give up the will. Here, then, were strong moral presumptions of death from poisoning. Three surgeons (experts!) were appointed to examine the body. They opened the abdomen, and, observing some green spots in the stomach, produced (as it afterwards appeared, by imbibition from the gall bladder), pronounced an opinion that the organ was in a gangrenous state from the effects of some corrosive poison. Some doubt arising on the correctness of this view, four other surgeons were directed to re-examine the body. They found that the stomach had not even been opened, and that its mucous membrane, as well as that of the intestines, was perfectly healthy. It contained a small quantity of undigested food, which was free from any trace of poison. The deceased had died from natural causes. The white powder found in the possession of the servant was nothing more than white sugar!” Nor does he omit the case of Hunter (p. 144), whose trial at Liverpool Assizes somewhat resembles that of my poor brother, but who was fortunate enough to be tried by an honest judge and an impartial jury. “A woman was charged with having poisoned her husband by arsenic. The medical evidence rested chiefly on the symptoms and post-mortem appearances, for no arsenic was discovered in the body. The mucous membrane of the stomach and intestines was found throughout its whole extent exceedingly inflamed and softened. The medical witnesses for the prosecution referred (as they always do) this condition to the action of arsenic; those for the defence considered that it might be owing to idiopathic gastroenteritis, independently of the exhibition of any irritant. The circumstances of the case were very suspicious, but the prisoner was acquitted, not merely on account of the variance in the medical evidence, but from the absence of positive proof of poison, i.e., its detection by chemical analysis.” This generally weighs much with a Court of law. Yet your lordship so contrived that it did not weigh one hair in my brother’s case. The principles of law being thus clear, and the mistakes of medical science being also equally admitted, let me follow them up by a further quotation from the gentleman out of whose powerful letter I have already extracted a passage—“Is there clear, and distinct, and unimpeachable proof that beyond all reasonable doubt Mr. Cook died a violent death? Let us see how that question is answered. For the prosecution a number of medical men of eminence state that the symptoms in his case were such as they would expect to have resulted from the administration of strychnia, and were irreconcilable with death from any other cause. Upon the part of the prisoner a number of equally eminent medical men state that they can account for the death of the deceased without being compelled to resort to the hypothesis of strychnia, and that in many important particulars the symptoms were different from those which that poison invariably produces. Each set of witnesses, upon cross-examination, qualified their statements in some degree, but in the result such is the substance of their respective experience.
“Then comes Professor Taylor, who analysed the contents of the stomach, &c., and who states that he found no strychnia nor any poison which could account for the death of Mr. Cook. As Lord Campbell said with a sneer, ‘Of course, upon this the whole defence rests.’ It strikes me as being a very feasible defence indeed, but more of that presently. However, Dr. Taylor states that you must not draw the conclusion that because no strychnia was found, therefore none was administered, because he had known cases (though of very rare occurrence) where he had himself administered that drug to animals, and afterwards tested for and failed to discover it; and from the symptoms he is convinced that Mr. Cook must have died from strychnia. Dr. Rees is of a similar opinion. Now, the result of this evidence is to destroy the practical utility of analysis for strychnia altogether; for although if strychnia be detected, it is proof that it has been administered, yet if it be not detected, that is no proof that it has not been administered.
“Then let us look at the other side. Mr. Herepath, who is confessedly one of the greatest analytical chemists of the present day, states that if the minutest particle of strychnia were present in the body, he would guarantee to find it, and in that statement he is corroborated by a series of eminent toxicologists. It is suggested, in answer to this evidence, that Professor Taylor did not apply the proper tests. Surely, if he did not, it did not lie in the mouth of the prosecution to urge that argument. He was their witness; he was employed by them to make the analysis, and they trusted to his capacity to do so; and when he states that he found no strychnia, the fair and logical deduction is, not that he did not use the proper tests, but that there was no strychnia to be found. Notwithstanding this, Lord Campbell put it very strongly—and, as I conceive, very unjustifiably and illegally, to the jury—that Professor Taylor might not have used the proper tests, and that it was for them to consider whether, if the proper tests had been applied, strychnia might not have been discovered. But, however, Mr. Herepath, whose testimony is borne out by other chemical witnesses for the defence, states that he will guarantee to find strychnia in all cases where it is present, however infinitesimal the quantity; that he never found his tests to fail, and that the only conclusion he could draw from the fact of strychnia not being found is that none was administered. Upon the one hand, therefore, you have the positive opinions of fallible medical men, founded upon a second-hand knowledge of the symptoms, as to the impossibility of their resulting from any other cause than strychnia. Upon the other hand you have the equally positive opinions of medical men similarly situated as to the effect of those symptoms being reconcilable with natural causes. Cast into the scales the unerring inspirations of chemical science, add that the life of a fellow-creature is at stake, and which way lies the balance of evidence?”
My lord, what answer can you make to this argument? You will say, perhaps, that you have convinced yourself that my brother is guilty. This, indeed, may satisfy a man of weak or of no conscience; but how will it fall upon the great body of the enlightened British public, who have been wound up, it is true, to the most awful excitement against this unhappy man, but who will assuredly awaken from that excitement and demand in tones of thunder how it came to pass that you, who should have stood between the prisoner and prejudice, ministered to that prejudice, and were found to be his accuser rather than his judge!
And here, my lord, before I proceed further, let me exonerate you from all the blame of this sham trial. You had a brother judge by your side who shares with you all the responsibility of prejudice against my brother, who made no secret, but rather an indecent display of that prejudice in a manner which astonished the whole auditory, and who ought also to be recorded with you to all time coming as having participated in the laurels of blood with which you should be crowned—I allude to Mr. Baron Alderson. That learned functionary, who inaugurated the first day’s proceedings by falling asleep and nearly tumbling over his desk during the Attorney-General’s opening speech, amused himself during the progress of the trial by suggesting questions to Mr. James, the counsel for the prosecution, by lifting up his hands in apparent astonishment when anything favourable to the prisoner was elicited on cross-examination, by looking at the jury with every mark of incredulity and contempt when Serjeant Shee suggested any matter beneficial to my brother, and by joining with your lordship in overruling every legal objection which was raised by the counsel for the defence. Once also, when Serjeant Shee asked one of the witnesses, “Where are the pathionic glands?” Baron Alderson started up with every mark of anger and exclaimed, “Humbug!” And on another occasion, when your lordship, or Mr. Justice Cresswell, addressed the serjeant as “Brother Shee,” Baron Alderson impatiently cried out, “Oh, bother Shee!” I can feel no surprise, therefore, when I find your lordship, while pronouncing sentence on my brother, declaring that Baron Alderson concurred with the finding of the jury, though, unless he concurred with you before the verdict was pronounced, he certainly did not do so in Court, as no communication passed between you and either of the judges after that fatal word. But of Mr. Justice Cresswell I feel bound to declare the feeling of my brother, of all my family, and, unanimously, as I am told, that of my brother’s counsel, that his conduct was in accordance with all that we hear or know of the purity of the bench; that his demeanour was dignified, noble, impartial, and most honourable; and that, but for his interference, visible, as was remarked on many important occasions, your lordship would have admitted evidence illegally against my brother, or excluded testimony which his advisers hoped would operate favourably for him on the minds of his jury. Never shall the memory of his conduct be erased from our hearts; we all have felt, and we shall always continue to feel it; nor shall any sunset close on me for the remainder of my days that shall not witness my earnest prayer for him who did all that a judge should do to maintain the character of our country and its criminal jurisprudence; and who probably would have exerted himself still more strenuously but for the feeling that upon your lordship, as chief judge, the great responsibility of this case rested, and that he himself was but an appendage rather than a ministering officer at the trial.
My lord, the remarks which I have up to this time made may be considered preliminary to my investigations of your charge, but they seem to me of consequence to a right understanding of the language in which you thought it proper to address them, and to a due appreciation of the kind of way in which the guilt has been fastened upon my brother’s shoulders. A writer in a daily paper says—“However horrible it may be that a systematic poisoner should escape the penalty of his crimes by an effort of legal chicanery, there is something even more repugnant to the principles of British law, and that is, that a man should be found guilty upon insufficient evidence; and there is something still more revolting, both to the constitution of the country and to human nature, namely, that a man should be hanged for a murder which there is no satisfactory proof had ever been committed.”
Yet, my lord, there is something still more dreadful, and it is this, that the time-renowned prestige of British trial by jury should be abrogated, as abrogated it will be, if your lordship’s precedent is to be followed by present or future judges. Did your lordship really leave any question to the jury upon which to exercise an impartial reason? Did you throw upon them the whole responsibility of the verdict, as by the theory of the law you ought to have done? Did you merely lay down the legal principles governing the case, or did you not step out of the way to comment (like an advocate) on the evidence? To get up this witness and to knock down that one, to praise those who supported Dr. Taylor’s theory and to censure those who were independent of such nonsense? Did not your lordship convey, as clearly to the jury, by meaning looks, by thumping the desk with peculiar energy, by laying emphasis on certain parts of the evidence, and then pausing and gazing intently upon the jurymen, by shaking your head, as if your thoughts of my brother’s guilt were too dreadful for utterance; by repeating over and over again those parts which told heaviest against him; by running on the evidence for the prisoner so that it was impossible for the jury to understand it; by charging against him, for a whole day and on the morning of the second, recapitulating with fearful emphasis and solemnity all your arguments of the preceding night, condensing them and summing them into one argumentative whole, from which it was almost impossible for the jury to draw any other conclusion than that you wished them to find a verdict of guilty? And when you had done all this you devoted the rest of the day—about two hours and a half—to the prisoner’s evidence, having given upwards of eleven hours to the evidence for the prosecution. If you think this consistent with your duty and with trial by jury, I can only say you stand alone; for if any faith is to be placed in the public Press, in the tone of general conversation, in the loudly-expressed voice of all independent persons, you have struck a blow at trial by jury from which it never will recover, unless the great mass of the community now protest against such a course in language that cannot be mistaken. If persons are thus persuaded into giving verdicts by judges in high station there is an end to the liberties of Englishmen. Trial by jury becomes, in the language of Lord Denman, “a mockery, a delusion, and a snare,” and the most glorious privilege which we have inherited from our ancestors degenerates into an engine of tyranny, cruelty, and falsehood, to entrap and destroy those who regard it as their dearest birthright. My lord, if there be no sympathy for my brother, let there be at least a feeling for our own rights when they are invaded, and let the public meditate in time that it is by little and little the grandest rights of states and empires are insidiously sapped until they perish.