ALDERSON, TOMKINS, AND A FREE COUNTRY--A PROBLEM IN HUMAN NATURE.
Alderson was a very excellent man and a good Judge. I liked him, and
could always deal with him on a level footing. He was quaint and
original, and never led away by a false philanthropy or a sickly
sentimentalism.
Appealed to on behalf of a man who had a wife and large family,
and had been convicted of robbing his neighbours, "True," said
Alderson--"very true, it is a free country. Nothing can be more proper
than that a man should have a wife and a large family; it is his
due--as many children as circumstances will permit. But, Tomkins,
you have no right, even in a free country, to steal your neighbour's
property to support them!"
I liked him where there was a weak case on the other side; he was
particularly good on those occasions.
In the Assize Court at Chelmsford a barrister who had a great criminal
practice was retained to defend a man for stealing sheep, a very
serious offence in those days--one where anything less than
transportation would be considered excessive leniency.
The principal evidence against the man was that the bones of the
deceased animal were found in his garden, which was urged by the
prosecuting counsel as somewhat strong proof of guilt, but not
conclusive.
It must have struck everybody who has watched criminal proceedings
that the person a prisoner has most to fear when he is tried is
too often his own counsel, who may not be qualified by nature's
certificate of capacity to defend. However, be that as it may, in this
case there was no evidence against the prisoner, unless his counsel
made it so.
"Counsel for the defence" in those days was a wrong description--he
was called the _friend_ of the prisoner; and I should conclude, from
what I have seen of this relationship, that the adage "Save me from my
friends" originated in this connection.
The friend of this prisoner, instead of insisting that there was no
evidence, since no one could swear to the sheep bones when no man had
ever seen them, endeavoured to explain away the cause of death, and
thus, by a foolish concession, admitted their actual identity. It was
not Alderson's duty to defend the prisoner against his own admission,
although, but for that, he would have pointed out to the Crown how
absolutely illogical their proposition was in law. But the "friend" of
the prisoner suggested that sheep often put their heads through gaps
or breakages in the hurdles, and rubbed their necks against the
projecting points of the broken bars; and that being so, why should
the jury not come to a verdict in favour of the prisoner on that
ground? It was quite possible that the constant rubbing would
ultimately cut the sheep's throat. If it did not, the prisoner
submitted to the same operation at the hand of his "friend."
"Yes," said Baron Alderson, "that is a very plausible suggestion to
start with; but having commenced your line of defence on that ground,
you must continue it, and carry it to the finish; and to do this
you must show that not only did this sheep in a moment of temporary
insanity--as I suppose you would allege in order to screen it--commit
suicide, but that it skinned itself and then buried its body, or what,
was left of it after giving a portion to the prisoner to eat, in the
prisoner's garden, and covered itself up in its own grave. You must go
as far as that to make a complete defence of it. I don't say the jury
may not believe you; we shall see. Gentlemen, what do you say--is the
sheep or the prisoner guilty?" The sheep was instantly acquitted.
There was another display of forensic ingenuity by the same counsel in
the next case, where he was once again the "friend" of the prisoner.
A man was charged with stealing a number of gold and silver
coins which had been buried a few hours previously under the
foundation-stone of a new public edifice.
The prisoner was one of the workmen, and had seen them deposited for
the historical curiosity of future ages. Antiquity, of course, would
be the essence of the value of the coins, except to the thief. The
royal hand had covered them with the stone, duly tapped by the silver
trowel amidst the hurrahs of the loyal populace, in which the prisoner
heartily joined. But in the night he stole forth, and then stole the
coins.
They were found at his cottage secreted in a very private locality,
as though his conscience smote him or his fear sought to prevent
discovery. His legal friend, however, driven from the mere outwork of
facts, had taken refuge in the citadel of law; he was equal to the
occasion. Alas! Alderson knew the way into this impregnable retreat.
Counsel suggested that it was never intended by those who placed the
coins where they were found that they should remain there till the end
of time; they were intended, said he, to be taken away by somebody,
but by whom was not indicated by the depositors, and as no time or
person was mentioned, they must belong to the first finder. It was all
a mere chance as to the time of their resurrection. Further, it was
certain they were not intended to be taken by their owners who had
placed them there--they never expected to see them again--but by any
one who happened to come upon them. Those who deposited them where
they were found parted not only with the possession, but with all
claims of ownership. Nor could any one representing him make any
claim.
All this was excellent reasoning as far as it went, and the only thing
the prosecution alleged by way of answer was that they were intended
to be brought to light as antiquities.
"Very well," said the prisoner's counsel; "then there is no felonious
intent in that case--it is merely a mistake. Antiquity came too soon."
And so did the conviction.
I was instructed, with the Hon. George Denman, son of my old friend,
whom I have so often mentioned, to defend three persons at the
Maidstone Assizes for a cruel murder. Mr. Justice Wightman was the
Judge, and there was not a better Judge of evidence than he, or of law
either.
The prisoners were father, mother, and son, and the deceased was a
poor servant girl who had been engaged to be married to another son of
the male prisoner and his wife.
The unfortunate girl had left her service at Gravesend, and gone to
this family on a visit. The prisoners, there could be no doubt, were
open to the gravest suspicion, but how far each was concerned with the
actual murder was uncertain, and possibly could never be proved.
The night before the trial the attorney who acted for the accused
persons called on me, and asked this extraordinary question,--
"Could you secure the acquittal of the father and the son if the woman
will plead guilty?"
It is impossible to conceive the amount of resolution and
self-sacrifice involved in this attempt to save the life of her
husband and son. It was too startling a proposal to listen to. I
could advise no client to plead guilty to wilful murder. It was so
extraordinary a proposition, look at it from whatever point I might,
that it was perfectly impossible to advise such a course. I asked him
if the woman knew what she was doing, and that if she pleaded guilty
certain death would follow.
"Oh yes," said he; "she is quite prepared."
"The murder," I said, "is one of the worst that can be
conceived--cruel and fiendish."
He agreed, but persisted that she was perfectly willing to sacrifice
her own life if her husband and son could be saved.
This woman, so full of feeling for her own family, had thought so
little of that of others that she had held down the poor servant girl
in bed while her son strangled her.
"If," said I, "she were to plead guilty, the great probability is that
the jury would believe they were all guilty--very probably they are;
and most certainly in that case they would all be hanged." I therefore
strongly advised that the woman should stand her trial "with the
others," which she did. In the end they all _got off_! the evidence
not being sufficiently clear against any.
It was a strange mingling of evil and good in one breast--of
diabolical cruelty and noble self-sacrifice.
I leave others to work out this problem of human nature.