THE NEW LAW ALLOWING THE ACCUSED TO GIVE EVIDENCE--THE CASE OF DR.
WALLACE, THE LAST I TRIED ON CIRCUIT.
I should like to make an observation on the recent Act for enabling
prisoners to go into the witness-box and subject themselves, after
giving their evidence, to cross-examination.
It must be apparent to every one, learned and unlearned in its
mysteries, that no evidence can be of its highest value, and often is
of no value, until sifted by cross-examination. I was always opposed
to this process as against an accused person, because I know how
difficult it is under the most favourable circumstances to avoid the
pitfalls which a clever and artistic cross-examiner may dig for the
unwary.
It did not occur to me in that early stage of the discussion on the
Bill that a really true story _cannot_ be shaken in cross-examination,
and that only the _false_ must give way beneath its searching effect.
I had to learn something in advocacy; indeed, I was always learning,
and the best of us may go on for ever learning, as long as this
wonderful and mysterious human nature exists.
However, I am not writing philosophical essays, but relating the facts
of my simple life, and I confess that the case that came before me on
this occasion totally upset my quiet repose in all the comfortable
traditions of the past. Human nature had something which I had not
seen: it arose in this way. A doctor was accused of a terrible
crime against a female patient. I need not give its details; it
is sufficient to say that if the girl's statement was true penal
servitude for life was not too much, for he was a villain of the very
worst character. Taking the ordinary run of evidence, if I may use the
word, and the ordinary mode of cross-examination, which, in the
hands of unskilled practitioners, generally tends to corroborate the
evidence-in-chief, the case was overwhelmingly proved, and how sad and
painful it was to contemplate none can realize who do not understand
anything below the surface of human existence.
I had watched the case with the anxious care that I am conscious
should be exercised in all inquiries, and especially criminal
inquiries, that come before one. I watched, and, let me say,
_especially watched_, for any point in the evidence on which I could
put a question in the prisoner's favour.
Upon that subject I never wavered throughout the whole of my career,
and the testimony of the letters which I received from the most
distinguished members of the criminal Bar--not to say that they are
not equally distinguished in the civil--will, I am sure, bear out my
little self-praise upon a small matter of infinite importance.
Everything in this case seemed to be overwhelmingly against the
unhappy doctor. No one in court, except himself, _could_ believe on
the evidence but that he was guilty.
I, who through my whole life had been studying evidence and the mode
in which it was delivered, believed in the man's guilt, and felt that
no cross-examination, however subtle and skilfully conducted, could
shake it.
I felt for the man--a scholar, a scientist--as one must feel for the
victim of so great a temptation. But I felt also that he was entitled,
on account of all those things which aroused my sympathy, to the
severest sentence, which I had already considered it would be my duty
to award him.
Then, under the New Act, which I had spoken against and written
against, as one long associated with all the bearings of evidence
given in the witness-box, the poor doctor stepped into that terrible
trap for the untruthful.
Let me now observe that, even before he was sworn, his _manner_ made a
great impression on my mind. And on this subject I would like to say
that few Judges or advocates sufficiently consider it.
The greatest actor has a manner. The man who is not an actor has a
manner, and if you are only sufficiently read in the human character,
it cannot deceive you, however disguised it may be. A witness's
evidence may deceive, but his manner is the looking-glass of his mind,
sometimes of his innocence. It was so in this case.
The man was not acting, and he was not an actor.
This made the first impression on my mind, and I knew there _must_
be something beneath it which only _he_ could explain. I waited
patiently. It was much more than life and death to this man.
The next thing that impressed me was that there was not the least
confusion in his evidence or in himself. His tone, his language, could
only be the result of conscious innocence.
It was not very long before I gathered that he was the victim of
a cruel and cowardly conspiracy. It was absolutely a case of
_blackmailing, and nothing else_.
I believed every word the man said, and so did the jury. His evidence
_acquitted him_. He was saved from an ignominious doom by the new Act,
and from that moment I went heart and soul with it: however much it
may be a danger to the guilty, it is of the utmost importance to the
innocent.
This case was not finished without a little touch of humour. When
half-past seven arrived--an hour on circuit at which I always
considered it too early to adjourn--the jury thought it looked very
like an "all-night sitting," although I had no such intention, and one
of their body or of the Bar, I forget which, raised the question on a
motion for the adjournment of the house.
I was asked, I know, by some impatient member of the Bar whether a
case in which _he_ was engaged could not go over till the morning.
This gave immense encouragement to an independent juryman, who
evidently was determined to beard the lion in his den, and possibly
shake off "the dewdrops of his British indignation."
I never believed in British lions, except on his Majesty's
quarterings; and although they look very formidable in heraldry, I
never found them so in fact. Indeed, if the British lion was ever a
native of the British Isles, he must have become extinct, for I have
never heard so much as an imitation growl from him except in Hyde Park
on a Sunday.
The British lion, however, in this case seemed to assert himself in
the jury-box, and rising on his hind legs, said in a husky voice,
which appeared to come from some concealed cupboard in his bosom,--
"My lord!"
"Yes?" I said in my blandest manner.
"My lord, this 'ere ---- is a little bit stiff, my lord, with all
respect for your lordship."
"What is that, sir?"
"Why, my lord, I've been cramped up in this 'ere narrer box for
fourteen hours, and the seat's that hard and the back so straight up
that now I gets out on it I ain't got a leg to stand on."
"I'm sorry for the chair," I said.
He was a very thick-set man, and the whole of the jury burst into a
laugh. Then he went on, with tears in his eyes,--
"My lord, when I went home last night arter sittin' here so many hours
I couldn't sleep a wink."
I could not help saying,--
"Then it is no use going to bed; we may as well finish the business."
That was all very well for him, but another juryman arose, amidst
roars of laughter, and lifted up a hard, wooden-bottomed chair, and
beat it with his heavy walking-stick.
The chair was perfectly indifferent to the treatment it was receiving
after supporting the juryman for so many hours without the smallest
hope of any reward, and I then asked,--
"Is that to keep order, sir?"
The excitement continued for a long time, but at last it subsided, and
I suggested a compromise.
I said probably the gentlemen in the next case would not speak for
more than one hour each, and if they would agree to this I would
undertake to sum up in _five minutes_.
The husky lion sat down, and so did the musician. The jury acquitted
and went home.
These are some of the caprices of a jury which a Judge has sometimes
to put up with, and it has often been said that Judges are more tried
than prisoners. Perhaps that is so, especially when, if they do not
get the kind of rough music I have mentioned from the jury-box,
they sometimes receive a by no means complimentary address from the
prisoner. One occurs to my mind, with which I will close this chapter.
I had occasion to sentence to death a soldier for a cruel murder by
taking the life of his sergeant. It was at Winchester, and after I had
uttered the fatal words the culprit turned savagely towards me, and in
a loud, gruff voice cried, "Curse you!"
I made no remark, and the man was removed to the cells. Very humanely
the chaplain went to the prisoner and endeavoured to bring him to a
proper state of mind with regard to his impending fate.
On the day appointed for the execution I received by post a long
letter from the clergyman, enclosing another written on prison paper.
The letter was to tell me that for ten days he could make no
impression on the condemned man; but on the tenth or twelfth day he
expressed his sincere sorrow that he had cursed me for passing on him
the sentence he had so well deserved, and his great desire was to
make a humble apology to me in person. He was told that that was
impossible, as I could not come to him, nor could he go to me.
Whereupon he begged to be allowed to write this humble apology. This
he was permitted to do, and the letter from the culprit, who was
hanged that morning, I was reading at the very moment of his
execution. It contained, I believe, sincere expressions of contrition
for the cruel deed he had done, but was mostly taken up with apologies
to me for having cursed me after advising him to prepare for the doom
that awaited him. He begged my forgiveness, which, I need not say, I
freely gave.