THE OLD BAILEY--ADVANTAGES OF THE NEW SYSTEM ILLUSTRATED.
And I saw in my dream that Don O'Rapley and worthy Master Bumpkin
proceeded together until they came to the Old Bailey; that delightful
place which will ever impress me with the belief that the Satanic
Personage is not a homeless wanderer. As they journeyed together
O'Rapley asked whether there was any particular kind of case which he
would prefer--much the same as he would enquire what he would like for
lunch.
"Well, thankee, sir," said Bumpkin, "what he there?"--just the same as a
hungry guest would ask the waiter for the bill of fare.
"Well," said Mr. O'Rapley, "there's no murder to-day, but there's sure to
be highway robberies, burglaries, rapes, and so on."
"Wall, I thinks one o' them air as good as anything," said Bumpkin. "I
wur on the jury once when a chap were tried."
"Did he get off?"
"Got off as clane as a whusle. Not guilty, we all said: sarved her
right."
"It's rather early in the morning, p'r'aps," said O'Rapley; "but there's
sure to be something interesting before lunch--crimes are very pop'lar,
and for my own part, I think they're as nice as anything: divorces,
p'r'aps, are as good, and the female intellect prefers 'em as a more
digestable food for their minds."
"As a what, sir!"
"Well, since they did away with _crim. cons_, there's nothing left for
females but murders and divorces, worth speaking of."
"Why, how's that, then?"
"O, they're not considered sufficiently moral, that's all. You see,
Master Bumpkin, we're getting to be a very moral and good people.
They're doin' away with all that's naughty, such as music and dancing,
peep-shows and country fairs. This is a religious age. No pictur
galleries on a Sunday, but as many public-houses as you like; it's wicked
to look at picturs on a Sunday. And now I'll tell you another thing,
Master Bumpkin, although p'r'aps I ought to keep my mouth closed; but
'ere you'll see a Chancery Judge as knows everything about land and
titles to property, and all that, and never had any training in Criminal
Courts, and may be never been inside of one before, you'll see 'im down
'ere tryin' burglaries and robberies, and down at the Assizes you'll see
'im tryin' men and women for stealing mutton pies and a couple of ounces
of bacon; that's the way the Round Square's worked, Master Bumpkin; and
very well it acts. There's a moral atmosphere, too, about the Courts
which is very curious. It seems to make every crime look bigger than it
really is. But as I say, where's the human natur of a Chancery
barrister? How can you get it in Chancery? They only sees human natur
in a haffidavit, and although I don't say you can't put a lot of it into
a haffidavit, such as perjury and such like, yet it's so done up by the
skill of the profession that you can hardly see it. Learning from
haffidavits isn't like learning from the witness-box, mark my words, Mr.
Bumpkin; and so you'll find when you come to hear a case or two."
Having thus eloquently delivered himself, Mr. O'Rapley paused to see its
effect: but there was no answer. There was no doubt the Don could talk
a-bit, and took especial pride in expressing his views on law reform,
which, to his idea, would best be effected by returning to the "old
style."
And I saw that they pushed their way through a crowd of people of all
sorts and degrees of unwashedness and crime, and proceeded up a winding
stair, through other crowds of the most evil-looking indictable persons
you could meet with out of the Bottomless Pit.
And amongst them were pushing, with eager, hungry, dirty faces, men who
called themselves clerks, evil-disposed persons who traded under such
names as their owners could use no longer on their own account. These
prowlers amongst thieves, under the protection of the Law, were permitted
to extort what they could from the friends of miserable prisoners under
pretence of engaging counsel to defend them. Counsel they would engage
after a fashion--sometimes: but not unfrequently they cheated counsel,
client and the law at the same time, which is rather better than killing
two birds with one stone.
And the two friends, after threading their way through the obnoxious
crowd, came to the principal Court of the Old Bailey, called the "Old
Court," and a very evil-looking place it was. All the ghosts of past
criminals seemed floating in the dingy atmosphere. Crowds of men, women
and children were heaped together in all directions, except on the bench
and in a kind of pew which was reserved for such ladies as desired to
witness the last degradation of human nature.
Presently came in, announced with a loud cry of "Silence!" and "Be
uncovered in Court!" a gorgeous array of stout and berobed gentlemen,
with massive chains and purple faces. These, I learned, were the noble
Aldermen of the Corporation. What a contrast to the meagre wretches who
composed the crowd! Here was a picture of what well-fed honesty and
virtue could accomplish for human nature on the one part, as opposed to
what hungry crime could effect, on the other. Blessings, say I, on good
victuals! It is a great promoter of innocence. And I thought how many
of the poor, half-starved, cadaverous wretches who crowded into the dock
in all their emaciated wretchedness and rags would, under other
conditions, have become as portly and rubicund and as moral as the row of
worthy aldermen who sat looking at them with contempt from their exalted
position.
The rich man doesn't steal a loaf of bread; he has no temptation to do
so: the uneducated thief doesn't get up sham companies, because _he_ has
no temptation to do so. Temptation and Opportunity have much to answer
for in the destinies of men. Honesty is the best policy, but it is not
always the most expedient or practicable.
Now there was much arraignment of prisoners, and much swearing of
jurymen, and proclamations about "informing my Lords Justices and the
Queen's Attorney-General of any crimes, misdemeanours, felonies, &c.,
committed by any of the prisoners," and "if anybody could so inform my
Lords Justices," &c, he was to come forward and do so, and he would be
heard. And then the crowd of prisoners, except the one about to be
tried, were told to stand down. And down they all swarmed, some laughing
and some crying, to the depths below. And the stout warders took their
stand beside the remaining prisoner.
"Now," said Mr. O'Rapley, "this Judge is quite fresh to the work, and
I'll warrant he'll take a moral view of the law, which is about the worst
view a Judge _can_ take."
The man left in the dock was a singular specimen of humanity: he was a
thin, wizen-looking man of about seventy, with a wooden leg: and as he
stood up to plead, leant on two crutches, while his head shook a good
deal, as if he had got the palsy. A smile went round the bar, and in
some places broke out into a laugh: the situation was, indeed,
ridiculous; and before any but a Chancery Judge, methought, there must be
an acquittal on the view. However, I saw that the man pleaded not
guilty, and then Mr. Makebelieve opened the case for the Crown. He put
it very clearly, and, as he said, fairly before the jury; and then called
a tall, large-boned woman of about forty into the witness-box. This was
the "afflicted widow," as Makebelieve had called her; and the way she
gave her evidence made a visible impression on the mind of the learned
Judge. His Lordship looked up occasionally from his note-book and fixed
his eyes on the prisoner, whose appearance was that of one trembling with
a consciousness of guilt--that is, to one not versed in human nature
outside an affidavit.
Mr. Nimble, the prisoner's counsel, asked if the prisoner might sit down
as he was very "infirm."
"Have you an affidavit of that fact, Mr. Nimble?" asked the Judge.
"No, my lord; it is not usual on such an application to have an
affidavit."
"It is not usual," said his lordship, "to take notice of any fact not
upon affidavit; but in this case the prisoner may sit down."
The prosecutrix gave her evidence very flippantly, and did not seem in
the least concerned that her virtue had had so narrow an escape.
"Now," asked Mr. Nimble, "what are you?"
The learned Judge said he could not see what that had to do with the
question. Could Mr. Nimble resist the facts?
"Yes, my lord," answered the learned counsel; "and I intend, in the first
place, to resist them by showing that this woman is entirely unworthy of
credit."
"Are you really going to suggest perjury, Mr. Nimble?"
"Assuredly, my lord! I am going to show that there is not a word of
truth in this woman's statement. I have a right to cross-examine as to
her credit. If your lordship will allow me, I will--"
"Cross-examination, Mr. Nimble, cannot be allowed, in order to make a
witness contradict all that she has said in her examination-in-chief; it
would be a strange state of the law, if it could."
Mr. Nimble looked about the desk, and then under it, and felt in his bag,
and at last exclaimed in a somewhat petulant tone:
"Where's my Taylor?"
"What do you want your tailor for?" asked the Judge.
"I wish to point out to your lordship that my proposition is correct, and
that I can cross-examine to the credit of a witness."
Here the clerk of arraigns, who sat just under the learned Judge, and was
always consulted on matters of practice when there was any difficulty,
was seen whispering to his lordship: after which his lordship looked very
blank and red.
"We always consult him, my lord," said Mr. Nimble, with a smile, "in
suits at Common Law."
Everybody tried not to laugh, and everybody failed. Even the Judge,
being a very good-tempered man, laughed too, and said:
"O yes, Taylor on Evidence, Mr. Nimble."
At last the book, about the size of a London Directory, was handed up by
a tall man who was Mr. Nimble's clerk.
"Now, my lord, at page nineteen hundred and seventy-two your lordship
will find that when the credibility of a witness is attacked--"
Judge: "That will be near the end of the book."
Mr. Nimble: "No, my lord, near the beginning."
"I shall not stop you," said the learned Judge; "your question may be put
for what it is worth: but now, suppose in answer to your question she
says she is an ironer, what then?"
"That's what I am, my lordship," said the woman, with an obsequious
curtsey.
"There, now you have it," said the Judge, "she is an ironer; stop, let me
take that down, 'I am an ironer.'"
The cross-examination continued, somewhat in an angry tone no doubt, and
amid frequent interruptions; but Mr. Nimble always thumped down the
ponderous Taylor upon any objection of the learned Judge, and crushed it
as though it were a butterfly.
Next the policeman gave his evidence, and was duly cross-examined. Mr.
Nimble called no witnesses; there were none to call: but addressed the
jury in a forcible and eloquent speech, stigmatizing the charge as an
utterly preposterous one, and dealing with every fact in a
straightforward and manly manner. After he had finished, the jury would
undoubtedly have acquitted; but the learned Judge had to sum up, which in
this, as in many cases at Quarter Sessions, was no more a summing up than
counting ten on your fingers is a summing up. It was a desultory speech,
and if made by the counsel for the prosecution, would have been a most
unfair one for the Crown: totally ignoring the fact that human nature was
subject to frailties, and testimony liable to be tainted with perjury.
It made so great an impression upon me in my dream that I transcribed it
when I awoke; and this is the manner in which it dealt with the main
points:--
"GENTLEMEN OF THE JURY,
"This is a case of a very serious character (the nature of the offence
was then read from Roscoe), and I am bound to tell you that the evidence
is all one way: namely, on the side of the prosecution. There is not a
single affidavit to the contrary. Now what are the facts?"
Mr. Nimble: "Would your lordship pardon me--whether they are facts or not
is for the jury."
"I am coming to that, Mr. Nimble; unless contradicted they are facts, or,
at least, if you believe them, gentlemen. If the evidence is
uncontradicted, what is the inference? The inference is for you, not for
me; I have simply to state the law: it is for you to find the facts. You
must exercise your common sense: if the prisoner could have contradicted
this evidence, is it reasonable to suppose he would not have done so with
so serious a charge hanging over his head?"
"My lord, may I ask how could the prisoner have called evidence? there
was no one present."
"Mr. Nimble," said his Lordship solemnly, "he might have shown he was
elsewhere."
"Yes, my lord; but the prisoner admits being present: he doesn't set up
an _alibi_."
"Gentlemen, you hear what the learned counsel says: he admits that the
prisoner was present; that is corroborative of the story told by the
prosecutrix. Now, if you find a witness speaking truthfully about one
part of a transaction, what are you to infer with regard to the rest?
Gentlemen, the case is for you, and not for me: happily I have not to
find the facts: they are for you--and what are they? This woman, who is
an ironer, was going along a lonely lane, proceeding to her home, as she
states--and again I say there is no contradiction--and she meets this
man; he accosts her, and then, according to her account, assaults her,
and in a manner which I think leaves no doubt of his intention--but that
is for you. I say he assaults her, if you believe her story: of course,
if you do not believe her story, then in the absence of corroboration
there would be an end of the case. But is there an absence of
corroboration? What do we find, gentlemen? Now let me read to you the
evidence of Police Constable Swearhard. What does he say? 'I was coming
along the Lover's Lane at nine twenty-five, and I saw two persons, whom I
afterwards found to be the prosecutrix and the prisoner.' 'You will
mark that, gentlemen, the prisoner himself does not suggest an _alibi_,
that is to say, that he was elsewhere, when this event occurred. Then he
was upon the spot: and the policeman tells you--it is for you to say
whether you believe the policeman or not; there is no suggestion that he
is not a witness of truth--and he says that he heard a scream, and caught
the defendant in the act. Now, from whom did that scream proceed? Not
from the prisoner, for it was the scream of a woman. From whom then
could it proceed but from the prosecutrix? Now, in all cases of this
kind, one very material point has always been relied on by the Judges,
and that point is this: What was the conduct of the woman? Did she go
about her ordinary business as usual, or did she make a complaint? If
she made no complaint, or made it a long time after, it is some
evidence--not conclusive by any means--but it is some evidence against
the truth of her story. Let us test this case by that theory. What is
the evidence of the policeman? I will read his words: 'The moment I got
up,' he says, now mark that, gentlemen, 'the woman complained of the
conduct of the prisoner: she screamed and threw herself in my arms and
then nearly fainted.' Gentlemen, what does all that mean? You will say
by your verdict."
"Consider your verdict," said the Clerk of Arraigns, and almost
immediately the Jury said: "Guilty of attempt."
"Call upon him," said the Judge: and he was called upon accordingly, but
only said "the prosecutrix was a well-known bad woman."
Then the Judge said very solemnly:--
"Prisoner at the bar, you have been convicted upon the clearest possible
evidence of this crime: what you say about the character of the
prosecutrix the more convinces me that you are a very bad man. You not
only assail the virtue of this woman, but, happily prevented in your
design, you endeavour to destroy it afterwards in this Court. No one who
has heard this case can doubt that you have been guilty of this very
grave offence; and in my judgment that offence is aggravated by the fact
that you committed it against her will and without her consent. The
sentence is that you be sent to prison for eighteen calendar months."
"Rather warm," said Mr. O'Rapley.
"Never heeard such a thing in my life," said Master Bumpkin, "she wur a
consentin' party if ever there wur one."
"But that makes no difference now-a-days," said Mr. O'Rapley. "Chancery
Judges studies the equity of the thing more. But perhaps, Mr. Bumpkin,
you don't know what that means?"
"No," said Bumpkin, "I doan't."
"You must be quiet," said Mr. O'Rapley; "recollect you are in a Court of
Justice."
"Be I! It 'ud take moore un thic case to make I believe it; but lookee
here: I be hanged if there ain't that Snooks feller down along there."
"Who?" enquired O'Rapley.
"That there feller," said Bumpkin, "be sure to find his way where there's
anything gooin on o' this ere natur."
Next an undefended prisoner was placed on trial, and as he was supposed
to know all the law of England, he was treated as if he did.
"You can't put that question, you know," said the learned Judge; "and now
you are making a statement; it is not time to make your statement yet;
you will have ample opportunity by-and-by in your speech to the jury."
And afterwards, when the Judge was summing up, the unhappy prisoner
called his lordship's attention to a mistake; but he was told that he had
had his turn and had made his speech to the jury, and must not now
interrupt the Court. So he had to be quite silent until he was
convicted. Then the two companions went into another court, where a very
stern-looking Common Law Judge was trying a ferocious-looking prisoner.
And Mr. O'Rapley was delighted to explain that now his friend would see
the difference. They had entered the court just as the learned Judge had
begun to address the jury; and very careful his lordship was to explain
(not in technical language), but in homely, common-place and common-sense
English, the nature of the crime with which the prisoner was charged. He
was very careful in explaining this, for fear the jury should improperly
come to the conclusion that, because they might believe the prisoner had
in fact committed the act, he must necessarily be guilty. And they were
told that the act was in that case only one element of the crime, and
that they must ascertain whether there was the guilty intent or no. Now
this old Mr. Justice Common Sense, I thought, was very well worth
listening to, and I heartily wished Mr. Justice Technical from the Old
Court had been there to take a lesson; and I take the liberty of setting
down what I heard in my dream for the benefit of future Justices
Technical.
His lordship directed the jury's attention to the evidence, which he
carefully avoided calling facts: not to the verbatim report of it on his
note-book as some Recorders do, and think when they are reading it over
they are summing it up; but pointing out statements which, if believed,
become facts and if facts, lead to certain _inferences_ of guilt or
innocence.
It was while the learned Mr. Justice Common Sense was thus engaged, that
the warder in the dock suddenly checked the prisoner with these words:
"You mustn't interrupt."
"Why may he not interrupt?" asks Mr. Justice Common Sense. "What do you
want to say, prisoner?"
"My lord," answered the prisoner, "I wanted to say as how that there
witness as your lordship speaks on didn't say as he seen me there."
"O, didn't he?" said the Judge. "I thought he did--now let us see,"
turning over his notes. "No, you are quite right, prisoner, he did not
see you at the spot but immediately after."
Then his lordship proceeded until there was another interruption of the
same character, and the foolish warder again told the prisoner to be
quiet. This brought down Mr. Justice Common Sense with a vengeance:
"Warder! how dare you stop the prisoner? he is on his trial and is
undefended. Who is to check me if I am misstating the evidence if he
does not? If you dare to speak like that to him again I will commit you.
Prisoner, interrupt me as often as you think I am not correctly stating
the evidence."
"Thankee, my lord."
"That be the sort o' Judge for me," said Bumpkin; "but I've 'ad enough on
it, Maister O'Rapley, so if you please, I'll get back t' the 'Goose.'
Why didn't that air Judge try t'other case, I wonder?"
"Because," replied the Don, "the new system is to work the 'Round
Square'."