Harper's New Monthly Magazine, No. VII, December 1850, Vol. II

by Various

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 framework knitter, in the employment of his father, a master manufacturer in a small way. He was tried on an indictment charging him with the offense of arson. A mob, of which he was alleged to be one, had burned 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 a 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 defense 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 door-keeper, 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 at 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 offenses by foregoing the chance of escape. "You know," said they, "how rarely an alibi obtains credit with a jury. You can have no other defense 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 streets, 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 defense 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 defense. 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 a 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 as to the bell. They had all heard it; and thus not only were the cross-examiners utterly baffled, but the cross-examination gave tenfold 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 can not 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 overdose 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 eyes, 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.