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.
I am not about to recapitulate the arguments of Serjeant Shee, which
prove that this charge of murder is one of the most improbable in the
annals of criminal jurisprudence. These arguments failed with the jury
because they were not permitted to exercise a calm judgment upon them.
But I may call attention to the gross fallacy on which the whole
prosecution was founded--that of starting with the positive theory of a
murder and then endeavouring by all means to fix that murder upon my
brother.