proved in any other an insurmountable difficulty meets one at the
threshold--that in order to obtain a conviction one must reverse the
legal and customary order of proceeding. Instead of proving a murder
first and discovering the murderer afterwards, you first prove the
murderer and thence deduce a murder. That is the course which the
necessities of the case compelled the Attorney-General to pursue, and it
was your duty to have exploded that theory in your summing up. But you
did no such thing. On the contrary, you went into all the antecedents of
the prisoner, and put them to the jury as an element in the
consideration of whether a murder had or had not been committed. And
having thus prepared the minds of the jury by the antimony of motives,
suspicious circumstances, &c., you then administer to them the strychnia
of a murder. You descanted more especially upon the purchase of
strychnia by the prisoner just before Cook’s death as strong evidence
that Cook was poisoned. That circumstance, coming after proof of Cook’s
death by strychnia, would reduce the case to one of almost geometrical
accuracy; but by itself, in the absence of such proof--nay, in presence
of scientific proof to the contrary--of what value is it? Besides, it is
quite incompatible with the case for the prosecution. The prosecution
suggests that my brother had a deliberate intention to murder Cook, and
had for ten days been adopting preliminary measures to carry that
intention into effect; that when the time for the completion of his
infernal purpose approached (which was on the Sunday), he wrote for Mr.
Jones, of Lutterworth, a surgeon, and a personal friend of the deceased,
to come over and be present at his last moments, in order that his
presence there might stave off suspicion. Now, if that were so, is it
not reasonable to suppose that he would have had the poison ready to be
administered, and not trust to the doctrine of chances to procure it at
a village like Rugeley when wanted for immediate use? Surely the
professional poisoner might naturally be expected to keep a good
stock-in-trade? Nothing of the sort. On the Monday night (if the case
for the prosecution is to be believed) he gets from Newton three grains
of strychnia, which he gives almost immediately afterwards to Cook. Cook
is attacked with strychnia-tetanus, but recovers, and is nearly quite
well the next day. The prisoner, finding Cook not dead, gets six grains
from Roberts on the Tuesday, which he also gives to Cook, and this time
he succeeds in his purpose. Now, is not this--the blackest part of the
case against my brother--very improbable? Would the poisoner of fourteen
people do his work in such a clumsy fashion? But, then, the possession
or destination of those six grains is not attempted to be accounted
for. That certainly is a most inculpatory circumstance. But we must
remember this, that until it was known that the prisoner had had this
strychnia, it was never suspected that Cook died from strychnia. It was
that circumstance which originated the train of ideas as to my brother’s
guilt; and when charged with murder he may naturally have thought that
the strychnia, if found in his possession, would be evidence of his
guilt, and so may have destroyed it; whereas, if he had preserved it, it
would have been the strongest proof of his innocence. Then, if he did
destroy it, he could give no proof of the fact, for, of course, it would
be done without the privity of any one else. Now, if he had been in
France he himself would have been subjected to a strict examination upon
all the points of the case, and his own statement upon that point,
whether for or against him, would have been in evidence. Moreover, how
does this part of the case reconcile with the medical evidence? It is
admitted on all hands that half a grain is sufficient to destroy life;
but a grain, or two, or three, no man could survive that. Still, the
inference unquestionably is that that quantity was administered on
Monday night but did not kill, and the next day the dose was doubled!
Nine grains in all! And of these nine grains of strychnia, which
unquestionably were administered if Cook died from that poison, no trace
whatever can be discovered in the body!
I will not further dwell upon this subject, but come to your lordship’s
conduct and charge, which are the more immediate objects of this letter.
The first thing which appeared to me unfair was the order which your
lordship made that the medical witnesses for the Crown should be
accommodated with seats in the most convenient part of the Court, while
the greater number of witnesses for the defence were obliged to stand
during the greater part of the trial--no slight mode of exhausting them
mentally as well as physically. And so rigidly was this carried out that
none of the medical witnesses for the defence were admitted into Court
until all the witnesses for the prosecution had taken their seats, and
fully preoccupied all the vacant space. This may appear a slight thing,
but I know how greatly it affected some of the older medical witnesses
for my brother, and how much it weakened them for the violent attacks
which the Attorney-General made upon them. There are few men, however
vigorous, who will not be worn out by standing for eight or nine days in
the crowded atmosphere of such a Court as the Old Bailey.
The next thing which appeared to me unfair was your permitting the
Attorney-General to open to the jury all the facts connected with
Bates’s insurance, and this you did after Serjeant Shee objected. It is
true that evidence of this negotiation was afterwards excluded as being
irrelevant, but why did you not exclude the statement which you must
have known beforehand would prejudice the jury against my brother? The
simple fact of that affair was that my brother wanted to raise money for
Bates, whom he pitied; that this device was resorted to for that
purpose, and I am told that not on the turf alone, but in commercial
circles, it is a common thing to raise loans upon the deposit of
insurance policies. Your lordship, however, allowed the jury to infer
that my brother and Cook wanted to insure Bates’s life in order that
they might afterwards murder him!
It is a principle of the law that nothing which is said in the absence
of a prisoner can be given in evidence against him. But you permitted a
conversation between Cook and Fisher to be proved when my brother was
not present, and when he could, consequently, have had no means of
contradicting Cook’s drunken folly about the “dosing.” In this, I am
told by a most accomplished member of the bar, you violated one of the
leading rules of evidence--one adapted for the protection of all men, as
it is obvious that if private slander be once permitted to be detailed
before a jury, the most innocent man living may be hanged on statements
made behind his back. In your charge to the jury you seemed conscious of
the impropriety you had committed, and you did not read that portion of
the evidence to them, but it had already produced a fatal influence on
their minds. Yet you would have read it, as I could plainly see, only
that Judge Cresswell interposed just as you came to it. What renders
this more indefensible is that Serjeant Shee objected to it, but you
overruled his objection. (See verbatim report of trial, p. 26.) And the
Attorney-General himself refrained from stating it in his opening
address, because he said it was not evidence (report, p. 9). Upon its
manifest falsehood I need not say a word. It is incredible that Cook
should say to Fisher my brother poisoned him, and yet afterwards go to
Rugeley with him, dine with him, send for him every hour in the day,
entrust him with all his moneys, make no mention of “dosing” to his
oldest friend, Dr. Jones, and retain his affectionate faith in William
to the last. Yet, not one word of these obvious reflections did you put
before the jury to weaken the force of the illegal evidence you allowed
to go before them. You only said that it was “mysterious,” whereas, in
truth, it was incredible; and you added that “Cook was under the
influence of Palmer to a very great degree,” as if he would have
continued so after an attempt to kill him. It was very soon apparent
that your lordship was resolved not only to admit illegal evidence, but
also to allow the prosecuting counsel great liberties in their mode of
examination. Serjeant Shee repeatedly called your attention to Mr. James
putting “leading questions” to the witnesses, but you overruled him,
until he told Mr. Smith that it was quite useless to object any further.
I am told that every member of the bar in Court was of opinion that the
questions were irregular in the leading shape in which they were put.
In his opening speech the Attorney-General made the following statement
to the jury:--“The next morning, at an early hour, Palmer was with him,
and from that time, during the whole of Saturday and Sunday, he was
constantly in attendance on him. He ordered him some coffee. Coffee was
brought up by the chambermaid, Elizabeth Mills. It was taken into the
room, given to the prisoner, and she left. Palmer, having received the
coffee, gave it to the man, who was in bed, and had, therefore, an
opportunity of dealing with it” (report, p. 12). Elizabeth Mills was
called to prove this statement. So far from proving that it was given to
Palmer, she distinctly swore that she “placed it in Cook’s hands,” so
that Palmer had no opportunity of tampering with it (report, p. 33). Yet
your lordship, whose duty it was to see that none of these misstatements
should be unobserved upon to the jury, did not point out this remarkable
discrepancy, nor did you think it incumbent on you to set them right
upon a point of such material import to my brother. You allowed them to
believe that he had poisoned that coffee when the evidence negatived his
dealing with it at all.
In commenting upon the evidence of this woman, Elizabeth Mills, you said
that Serjeant Shee had made “a most foul charge against her and
Stevens,” representing that she had been bribed, but that you did “not
see the smallest pretence for such a suggestion.” I wonder that, after
your three score and ten years in this wicked world, you could have been
so exceedingly innocent and simple. You come from a country where the
inhabitants are keen-sighted enough, yet you thrust yourself forward as
the defender of Eliza Mills, a woman upon whose countenance her
character was written, and whose whole demeanour flashed conviction to
every mind of the sort of person she was. This woman was brought away
from Rugeley by Stevens, she was lodged by him at Dolly’s, where she saw
him “always” in the sitting-room, that gentleman having called “merely
to see how I liked London, and whether I was well in health, and all
that, to see whether I liked the place,” though she afterwards added
that he called about “sometimes one thing, sometimes another,” and “many
more things which I cannot remember. I do not keep things in my head for
weeks or months together. I do not pretend to keep in my head what the
conversation was,” yet “there were many more things talked about that I
do not wish to mention. Perhaps my thoughts were occupied about
something else.” And when the same woman is asked to give some account
of herself, and her visit to the man Dutton at Hitchingley, and asked to
name “who are your friends?” she answers, “I have some friends there.”
“Who are they?” says Serjeant Shee, to which Mills answered, “Friends
are friends, I suppose,” and then she gave an account that she slept
with the mother, and was “engaged to the son,” though what she meant by
this she did not venture to explain. Your lordship, however, “saw not
the smallest pretence,” &c.
Again, when the deposition of the same woman was read, in which there
was no mention of the “twitchings and jerkings,” and all those other
horrors which she imparted into her narrative, and which she enforced by
so much pantomimic action; and when in the deposition she proved that
the “broth was very good,” while in the evidence at the trial she swore
that “it poisoned her,” you coolly told the jury that it was “an
important omission; but you will say whether that which is stated is not
substantially the same as the evidence which she gave on oath when
examined before you.” Whereas you ought to have said that they were
substantially opposite, the two statements being reconcilable by no
manner of even Scotch chicanery. In fact, the manner in which you
supported this woman was exactly opposite to that which judges usually
do when persons of that description come before them; and I have heard
of judges telling juries to place no reliance on witnesses whose conduct
and demeanour were every way superior to that of Mills. I can conceive
no greater blow to public trial than the support given by a judge to a
witness like Mills, but “a fellow feeling makes us wondrous kind,” and
you adopted her with all the fervour of a champion of romance. When it
was proposed to contradict this woman by Dr. Collier, who was in Court,
Judge Alderson said, with unrestrained anger, “It is better Dr. Collier
should be absent from the Court. If he is to be examined as to facts, he
ought not to be here at all; he is here under the false pretence of
being a doctor,” forgetting that Taylor, Rees, and Monkton, who were
also to be examined as to facts on behalf of the Crown, were then
present, though not, of course, “under the false pretence of being
doctors!” The jury very soon saw what the judges thought of the case.
Mr. Gardner, the lawyer of Rugeley, was then called to prove that the
coroner had not asked several questions of Mills, and that the jurymen
had expostulated with him for not doing so. This illegal course you
permitted, assigning the following strange reason for it:--“What was
said there is part of the transaction of taking the evidence. It cannot
be evidence against the prisoner, but it may explain the manner in which
the depositions are taken.” It requires no lawyer to tell me that “if it
cannot be evidence against the prisoner, then it has no right to go upon
your notes, or to be stated in the presence of the jury at all, whom it
cannot fail to affect, although they are sworn to decide according to
the evidence.” Yet all this you permitted, allowing the Attorney-General
to damage the character of the coroner in every way he could; and there
is no knowing what you could not have got Gardner to say had not Judge
Cresswell interposed and terminated the scene. He said “the depositions
which had been put in did not show that any questions had been put by
the jurymen. If they had contained such questions they would have shown
the motive of the jury in putting them. But the Court was left totally
in the dark as to whether questions had been put by the coroner or any
other person. For anything that appeared to the contrary, the witnesses
might have made a voluntary statement without any questions at all being
put to them. No foundation was, therefore, laid for the
Attorney-General’s inquiries.” Every one in Court saw how chagrined you
were at this interposition of Judge Cresswell, but you were obliged to
submit, as Alderson concurred with him. One word with reference to Ward,
the coroner. He is a very able lawyer. The jury wanted to put questions
as to various rumours about my brother William poisoning Lord George
Bentinck, Bladen the brewer, and twenty other people; and as the coroner
overruled all such folly, the sapient jurymen did expostulate with him,
and this was Gardner’s mare’s nest!
The next witness examined was Mrs. Brooks, and though she gave evidence
of the most valuable kind to the prisoner, yet not one syllable of it
did you comment upon to the jury. The main evidence against my brother,
connected with Shrewsbury, related to the sickness with which Cook was
seized. If, therefore, other persons in various parts of the town were
similarly affected, it could not fail to benefit William, for he could
not be said to have poisoned or “dosed” all the others, especially as he
was not at Shrewsbury at all when they were sick, but was at home at
Rugeley. Serjeant Shee asked Mrs. Brooks (report, p. 54), “Do you know
whether other racing men were taken ill on the Wednesday at
Shrewsbury?--There were a great number; one of my company was dreadfully
ill, and there was a wonder what could cause it. We made an observation.
We thought the water might have been poisoned at Shrewsbury. We were all
afflicted in some way by sickness--sick and purged.” After twelve days
the jury can be scarcely expected to have remembered this most important
admission. It was your incumbent duty to have recalled their attention
to it, for it was strongly in my brother’s favour; but, if they
recollected it at all, you took care that they should pay no attention
to it, for, after reading to them all that she said in her direct
examination, you remarked, “This ends the affair about Mr. Cook’s
illness at Shrewsbury, and, taken by itself, it really amounts to very
little, but, you observe, it is connected with what follows when he
returned to Rugeley” (report, p. 311). You then passed on, not saying a
word about the incident just mentioned, and, associating in the minds of
the jury with subsequent transactions at Rugeley that part of Mrs.
Brooks’ evidence which was brought forward for the prosecution, you kept
back the most valuable portion of her testimony to my brother, and
entirely ignored its existence in the case.
Dr. Jones, of Lutterworth, the friend of Cook, to whom my brother
writes, gave evidence of the most valuable kind, showing Cook’s broken
constitution, his sores, his syphilis, his secondary symptoms, his
unbounded confidence in William, and William’s brotherly kindness to
him, yet not one word of comment did you offer to the jury upon these
matters. The only remark you made was one highly damaging to my brother,
and was as follows:--“At first sight it would appear very much to be in
his favour that he sends for a medical man, who is a friend of Cook’s,
and who took a lively interest in him, and wished him well. But, at the
same time, there are circumstances in this case that may enable you to
draw a different conclusion, but I will not suggest” (report, p. 312).
No, you did not suggest in words, but, pausing here, you looked at the
jury and shook your head at them for half a minute in the most
mysterious manner, so that they must have been the dullest of all
mankind if they had not perfectly well known what you meant. I have
heard more than one person remark upon the Scotch subtlety of this mode
of proceeding. Your lordship is a sort of biographer of the Chief
Justices of England, though I am told that the unfortunate Dr. Giles,
whom you had the pleasure of sentencing at Oxford to twelve months’
imprisonment, is the real author of that production; and I suppose you
hope to figure one day in the literary gallery with those whom you have
commemorated. It would be impossible, perhaps, for a future historian
who merely read your proceedings in my brother’s trial, to form an
accurate notion of your demeanour; but, with the light which this letter
will throw upon the transaction, such an annalist--if ever you should be
thought worthy of notice--will be able to inform future times how you
managed to convince a jury without leaving any trace behind of the means
by which you did it.
The next witness of any consequence was Newton; and here I should have
thought your lordship’s feelings as a man, if they had not entirely
perished, would have exhibited some trace of natural passion. Newton,
according to his own account, was an accessory to the murder, and the
murderer after the fact; he knew the current gossip of Rugeley and
Stafford, that Cook had been poisoned by my brother; he assisted at the
post-mortem examinations for the purpose of detecting the poison which
the murderer had used; he had an interview on the Sunday after Cook’s
death with William, in which this skilful poisoner (whose chemical
knowledge of the minimum dose of strychnia which destroys life, and of
the hitherto unknown fact that antimony neutralises the discovery of
strychnia, places him a hundred years in advance of all the chemists of
the age), asks the ignorant shopboy of the nature and the effects of
strychnia! And when the learned Newton gives him information on the
matter, the poisoner snaps his fingers in joy and exclaims, “That will
do”; and after that he goes with him to the post-mortem examination; and
after that Newton swears against him at the inquest; and after that he
keeps the deadly secret buried in his bosom from November until the
middle of the month of May, just one day before the trial! And after the
trial he communicates the further fact to the Attorney-General that it
was he who made up the deadly pills for my brother on the Monday night.
With reference to the credibility of this monstrous witness you have not
one word to say, though you did not hesitate to stigmatise Mr. Nunneley
and Dr. M‘Donald as persons on whom the jury could place no reliance;
and in the course of their cross-examination you looked at them in a
manner significant of total incredulity of their testimony. Observe the
mode in which you support Newton. You say, “There is no contradiction of
anything that he has said.” Why did you not tell the jury that, as he
fixed no time or place when any one but the prisoner himself, whose
mouth was sealed, was by, it was impossible he could be contradicted?
You go on (report, p. 313)--“Well, then, you are to consider what is the
probability of his inventing this wicked and most abominable lie? He had
no ill-will towards the prisoner at the bar.” (Who told you that? Who
proved it? What right had you to assume it? What right had you to tell
it to the jury?) “He had nothing to gain by injuring him much less by
saying anything to affect his life.” (I ask again who told you all this,
and on what pretence did you venture to say so to the jury?) “I see no
motive that Mr. Newton could have for inventing a lie to take away the
life of another person.” (Are you omniscient, then, and do you profess
to read that inscrutable mystery, the human heart, and have you not read
in the annals of crime of innumerable murders and perjuries committed
without apparent motive?) “No inducement could be held out to him by the
Crown; he says himself that no inducement was held out to him, and that
he at last disclosed it from a sense of justice.” (As if a man who
screened a murderer for six months could have any sense of justice.) “If
you believe him, certainly the evidence is very strong against the
prisoner at the bar.” Not a word of caution is here given; not one
Scotch hint of doubt in this witness. Your “canny” countrymen are not
always so credulous; they are not at all times so easy of belief in
persons of this description. Yet your milk of human kindness is so pure
that you cannot for your life imagine the least reason why Newton should
not be believed.
But it was on the evidence of Roberts that your lordship used
observations which had the most powerful effect on the jury, and since
then upon the public mind. I have already explained how it was that the
prisoner, even if he were a guilty man, might have denied the purchase
of the strychnia from Roberts, as he always denied its purchase from
Newton, was deprived by artifice of the witness Cockayne, who could have
thrown a new light upon this affair, and I have shown how Bates
prevaricated with reference to the dogs and the brood mares. My brother
being in this way at the mercy of Bates, and juggled out of Cockayne, in
what possible way could he account for the disposal of the strychnia?
Yet you, who knew all this a thousand times better than the jury, told
them that “a very serious case is adduced, supposing you should come to
the conclusion that the symptoms of Mr. Cook were consistent with that
of poison. If you think the symptoms are accounted for by merely
ordinary tetanus, of course the fact of strychnia being obtained by the
prisoner at the bar is of very little weight; but, if you should come to
the conclusion that the symptoms which Mr. Cook exhibited on the Monday
night and Tuesday night are consistent with strychnia, then a fearful
case is made out against him.” The learned counsel did not favour us
with the theory which he had formed in his own mind respecting that
strychnia, and how he considered it to be consistent with the view that
he suggested. There is no evidence of the intention with which it was
purchased. There is no evidence how it was applied, and what became of
it, or what was done with it (report, p. 313). What modern judge before
yourself in a case of death ever ventured to tell a jury that “a fearful
crime was made out against the prisoner”? Scraggs or Belknap might have
done it; Jeffreys might not have blushed to use the words, but that they
should now be used in the face of an open Court, and with a pantomimic
gesture and grim stare at the jury such as you gave, are facts
discreditable to any law. By what right, with what face, on what
authority did you venture to tell the jury that his “learned counsel”
was bound to prove his innocence or to account for his possession or
disposal of the strychnia? I have always understood it to be the law
that every man was presumed to be innocent until he was proved to be
guilty; but you have reversed this majestic, merciful principle, and
intimate that every man is guilty until his counsel proves him to be
innocent. A more shameful perversion of the law than this, I am told by
persons in authority, has never been witnessed. Well also did you know
that Serjeant Shee was not entitled to put forward to the jury “the
theory which he had formed in his own mind respecting the strychnia.”
Had he ventured to do so I have no doubt you would have interrupted him
with unfeeling harshness, and repeated to him in even stronger language
than you did that species of insult “that a witness had no more right to
make himself an advocate than an advocate to make himself a witness.”
And then you glaringly tell the jury that there has been no “evidence of
the intention,” as if you did not well know that if such evidence were
possible to be given it could only be given by my brother William
himself (who, by law, could not speak); and that, even if he could speak
and was about to mention his intention, you would have stopped him, and
said that such evidence was illegal, facts, not intentions, being the
only admissible evidence in a Court of law. Yet you gravely complain as
if the thing might have been done, and the jury, who probably believed
you, convicted my brother because he could not prove an impossibility.
My lord, if our present system of representation were anything but a
mockery, and if the House of Commons were constituted as it was in the
days of Pym, Vane, and Hampden, I verily believe you would be impeached
for such a charge as this, for you stated to the jury that the prisoner
was guilty because he did not do that which you absolutely knew he could
not do, namely, prove his intention. But, under the present system of
things, judges may do anything they please with impunity, and no one
calls attention to it, because the wretches whom they hang or exile are
friendless outcasts, deprived of all sympathy from the world, enemies
often of society, which thus becomes their enemy; and the great body of
the community not being acquainted with the law, and the only persons
who are, namely, the bar, being a body of degraded, crawling, sneaking
slaves and sycophants who do not venture to arraign a judge, because if
they do they fear that attorneys will desert them; in this way the most
frightful licentiousness of power is given to men like you, and they are
as despotic as the Cadis in the remotest part of Turkey. In civil cases,
indeed, there is a check upon them, because there the parties are rich,
and there is an opportunity for a new trial, but in criminal cases there
is no new trial, even in the most scandalous and infamous conduct of the
judge; and the consequence is that a wicked man may commit almost any
conceivable crime upon the bench, and gratify his love of blood to the
utmost without restraint or fear, than which I can conceive no more
shocking infamy to exist.