APPOINTED A JUDGE--MY FIRST TRIAL FOR MURDER,
No sooner was the Tichborne case finished than I was once more in the
full run of work.
One brief was delivered with a fee marked twenty thousand guineas,
which I declined. It would not in any way have answered my purpose
to accept it. I was asked, however, to name my own fee, with the
assurance that whatever I named it would be forthcoming. I promised to
consider a fee of fifty thousand guineas, and did so, but resolved not
to accept the brief on any terms, as it involved my going to Indie,
and I felt it would be unwise to do so.
In 1874 I was offered by Lord Cairns the honour of a judgeship, which
I respectfully declined. It was no hope of mine to step into a puisne
judgeship, or, for the matter of that, any other judicial position.
I was contented with my work and with my career. I did not wish to
abandon my position at the Bar, and my friends at the Bar, and take up
one on the Bench with no friends at all; for a Judge's position is one
of almost isolation. This refusal gave great dissatisfaction to many,
and a letter I have before me says, "I got into a great row with
my editor by your refusal." Another said he lost a lot of money in
consequence: "I thought it was any odds upon your taking it."
Sir Alexander Cockburn gave me a complimentary side-cut in a speech he
made to some of his old constituents.
"The time comes," said he, "when men of the greatest eminence are
called upon to give up their professional emoluments for the interests
of their country. In my opinion they have no right to refuse their
services; no man has this right when his country calls for them."
But these animadversions did not affect me. I held on to the course
which I had deliberately chosen, and which I thought my labours and
sacrifices in the Tichborne case on behalf of my country entitled me
to enjoy. Let any one who has the least knowledge of advocacy consider
what it was to carry that case to a successful issue, and then condemn
me for not taking a judgeship if he will. I was entitled to freedom
and rest. A judgeship is neither, as one finds out when once he puts
on the ermine. But it requires no argument to justify the course I
took. I was entitled to decline, and I did. There is nothing else to
be said; all other considerations are idle and irrelevant.
A judgeship was, however, a second time offered by Lord Cairns in
1876. This, after due consideration, I accepted, and received my
appointment as a Judge of the Exchequer Court on November 2 of that
year.
The first and most sensational case that I was called upon to preside
over was known as the Penge case. Sir Alexander Cockburn had appointed
himself to try it, on account of its sensational character; but as it
came for trial at a time when the Lord Chief Justice could not attend,
it fell to the junior Judge on the Bench.
I am not going to relate the details of that extraordinary case,[A]
which are best left in the obscurity of the newspaper files; but I
refer to it because it cannot well be passed over in the reminiscences
of my life. I shall, however, only touch upon one or two prominent
points.
[Footnote A: The great sensation of the case was almost overpowered by
the great sensation that "a new power had come upon the Bench." These
are, as nearly as I can give them, the words of one of our most
distinguished advocates, and one of the most brilliant who was in the
Penge case:--
"We felt, and the Bar felt, that a great power had come upon the
Bench; he summed up that case as no living man could have done. Every
word told; every point was touched upon and made so clear that it was
impossible not to see it."
Another distinguished advocate said there was no other Judge on
the Bench who could have summed that case up as Sir Henry Hawkins
did.--R.H.]
"Every person," I said in my summing up, "who is under a legal duty,
whether such duty was imposed by law or contract, to take charge of
another person must provide that person with the necessaries of life.
Every person who had that legal duty imposed upon him was criminally
responsible if he culpably neglected that duty, and the death of the
person for whom he ought to provide ensued. If the death was the
result of mere carelessness and without criminal intent, the offence
would be manslaughter, provided the jury came to the conclusion that
there had been culpable neglect of the duty cast upon the individual
who had undertaken to perform it."
With regard to the evidence of one of the witnesses who was said to
be an accomplice, so that it was necessary that she should be
corroborated, I said a jury might convict without it, but recommended
them strongly not to take for granted her evidence unless they found
there was so much corroboration of her testimony as to induce them to
believe she was telling the truth.
As to one of the accused, I said: "If she had no legal object to
fulfil in providing the deceased with the necessaries of life, the
mere omission to do so would not render her guilty; but if she did an
act wrongfully which had a tendency to destroy life, but which was not
clone with that intention, she would be guilty of manslaughter."
The jury found a verdict of guilty against all, but with a strong
recommendation in favour of one, in which I joined.
When a verdict of guilty of wilful murder is returned, a Judge,
whatever may be his opinion of its propriety or justice, has no
alternative but to deliver the sentence of death, and in the very
words the law prescribes. It is not _his_ judgment or decision, but
it is so decreed that the sentence shall in no way depend upon the
sympathy or opinion of the Judge. Whatever mitigating circumstances
there may be must be considered by the Secretary of State for the Home
Department as representing the Sovereign, and upon his advice alone
the Sovereign acts.
But the Home Secretary never allows a sentence of death to be executed
without the fullest possible inquiry as to mitigating circumstances,
and it is at this stage that the opinion of the Judge is almost
all-powerful.
My judgment in this case was the result of much anxious thought and
consideration. The responsibility cast upon me was great. The case was
as difficult as it was serious; but my line of duty was plain, and it
was to leave the facts as clearly as I could possibly state them, with
such explanation of the law applicable to each case as my ability
would allow, and then leave the jury to find according to their honest
belief. No duty more arduous has ever since been imposed upon me, and
I performed it in my honest conscience, without swerving from what I
believed, and believe still, to be my strict line of duty.
I have had many opportunities of reconsidering the whole
circumstances, but I have never changed or varied my opinion after all
these years, and am certain I never shall--namely, that I did my duty
according to the best of my judgment and ability.
A Judge may go wrong in many ways, and often does in one way or
other, especially if he does not know his own mind--the worst of all
weaknesses, because it usually leads to an attempt to strike a medium
line between innocence and guilt.
One great weakness, too, in a Judge is not having the faculty of
setting out the facts in language which is intelligible to the jury,
or in not setting them out at all, but repeating them so often and in
so many forms that they are at last left in an absolutely hopeless
muddle. A Judge once kept on so at the jury about "if you find
burglarious intent, and if you don't find burglarious intent," that at
last the jury found nothing except a verdict of not guilty, giving the
"benefit of the doubt as to what the Judge meant."
As an illustration of the necessity of giving the jury a clear idea
of the evidence in the simplest case, I will state what took place at
Exeter. Juries are unused to evidence, and have very often to be told
what is the bearing of it. In a case of fowl-stealing which I
was trying, there was a curious defence raised, which seemed too
ridiculous to notice. It was that the fowls had crept into the
nose-bag in which they had been found, and which was in the prisoner's
possession, in order to shelter themselves from the east wind.
Forgetting that possibly I had an unreasoning and ignorant jury to
deal with, I thought they would at once see through so absurd a
defence, and did not insult their common sense by summing up. I merely
said,--
"Gentlemen, do you believe in the defence?"
They put their heads together, and kept in that position for some
time, and at last, to my utter amazement, said,--
"We do, my lord; we find the prisoner _not guilty_."
It was a verdict for the prisoner and a lesson for me.
It was always my practice, founded on much calculation of the
respective and relative merits and demerits of prisoners, to do what
no other Judge that I am aware of ever did, which was to put convicted
prisoners back until the whole calendar had been tried, then to bring
them up and pass sentence after deliberate consideration of every
case. I thus had the opportunity of reading over my notes and forming
an opinion as to whether there were any circumstances which I could
take into consideration by way of mitigation, or, in the same manner,
as to whether there were matters of aggravation, such as cruelty or
deliberate, wilful malice. The result of this plan on one occasion at
Stafford Assizes, which I remember very well, was this. Two men were
convicted of bigamy. The offence was the same in law as to both the
prisoners. The one was altogether, physically and morally, a brute,
cruel and merciless. The other man found guilty had been a bad husband
to his wife before he went through the form of the second marriage;
but as he had been already punished for his misconduct in that
respect, I thought it fair that he should not be punished again for
the same offence. Such is my idea of the law of England, although I
fear it is sometimes forgotten. I therefore treated this man's crime
as one of a very mitigated character, no harm having been done to the
second woman, and released him on his own recognizances to come up for
judgment if he should be called upon. I would not revisit upon him
his past misdeeds. The other man I sent into penal servitude for five
years.