I then mumbled over the words of the sentence of death, taking care that the poor woman did not hear them—much, no doubt, to the chagrin of the High Sheriff and to the lowering of his high office and dignity. Nothing so enhances a Sheriff's dignity as the gallows.

[There was a great deal of unlooked-for appreciation of his merits, and from quarters where, had he been a hard Judge, one could never have expected it.

There was even the observation of the costermonger leaning over his barrow near the Assize Court when one morning Sir Henry was going in with little Jack.

"Gorblime, Jemmy! see 'im? The ole bloke's been poachin' agin. See what he's got?"

It was a brace of pheasants, and not going into court with his gun, but only his dog, it was taken for granted he had been out all night on an unlawful expedition.

Some one once asked Sir Henry what was the most wonderful verdict he ever obtained.

He answered: "It depends upon circumstances. Do you mean as to value?"

"And amount."

"Well, then," he said, "half a farthing."

Some of the company were a little disconcerted.

"I'll tell you," said the Judge. "There was in our Gracious Majesty's reign a coinage of half a farthing. It was soon discountenanced as useless, but while it was current as coin of the realm I had the honour of obtaining a verdict for that amount, and need not say, had it been paid in specie and preserved, it would in value more than equal at the present time any verdict the jury might have given in that case."]

One of the most remarkable trials in which as a Judge I have presided was what was known as the Muswell Hill tragedy. It was a brutal, commonplace affair, and with its sordid details might make a respectable society novel. I should have liked Sherlock Holmes to have been in the case, because he would have saved me a great deal of sensational development, as well as much anxiety and observation.

Burglars are usually crafty and faithless to one another. They never act alone—that is, the real professionals—and invariably, while in danger of being convicted, betray one another. Such, at all events, is my experience. Each fears the treachery of his companion in guilt, and endeavours to be first in disclosing it. In the case I am now speaking of, this experience was never more verified than in the attempt on the part of these two murderers each to shift the guilt on to the other.

The ruffians, Milsome and Fowler, resolved to commit a burglary in the house of an old man who led a lonely life at the suburb known as Muswell Hill, near Hornsey.

The sole occupant of the cottage slept in a bedroom on the first floor. In his room was an iron safe, in which he kept a considerable sum of money, close by the side of his bed.

In the dead of night the two robbers found their way into the kitchen, which was below the bedroom. They made, however, so much noise as to arouse the sleeper in the room above. The old man rose, and went down into the kitchen, where he found the two prisoners preparing to search for whatever property they might carry away. Instantly they fell upon their victim, threw him on to the floor, and with a tablecloth, which they found in the room, and which they cut into strips for the purpose, bound the poor old man hand and foot, and struck him so violently about the head that he was killed on the spot, where he was found the following morning. The prisoners failed to obtain the booty they were in search of, and made off with some trifling plunder, the only reward for a most cruel murder. They escaped for a time, but were at last traced by a singular accident—one of the prisoners having taken a boy's toy lamp on the night of the burglary from his mother's cottage and left it in the kitchen of the murdered man. The boy identified one of the prisoners as the man who had been at his mother's and taken the lamp.

The men were jointly charged with the murder before me. Each tried to fix the guilt on the other, knowing—or, at all events, believing—that he himself would escape the consequences of wilful murder if he succeeded in hanging his friend. I knew well enough that, unless it could be proved that both were implicated in the murder, or if it should be left uncertain which was the man who actually committed it, or that they both went to the place with the joint intention of perpetrating it if necessary for their object, they might both avoid the gallows. I therefore directed my attention closely to every circumstance in the case, and after a considerable amount of evidence had been given without much result, so far as implicating both prisoners in the actual murder was concerned, an accidental discovery revealed the whole of the facts of the tragedy as plainly as if I had seen it committed.

I have said that the tablecover had been cut into strips to accomplish their purpose; and it was clear that a penknife had been used, for one was found on the floor. Suddenly my attention was called to the fact that two penknives, which no one had hitherto noticed, were produced. They belonged, not to the prisoners, but to the deceased man, and were usually placed on the shelf in the kitchen. But it came out in evidence, quite, as it seemed, accidentally, that they had been taken from that place, and were found on the floor where the cutting up of the tablecover had been performed, at some little distance from one another; but each knife by the side of and not far from the deceased man. They were at my wish handed to me; I also asked for some of the shreds which had bound the dead man. Upon examination it seemed that these were the knives that had been used to cut the tablecloth into shreds, and if so, the jury might well assume that each prisoner had used one of the knives for that purpose, for one man could not at the same time use two.

The tablecloth had jagged or hacked edges, which satisfied the jury that the knives had been used hurriedly, and that each man had been doing his share of the cutting. It was thus clearly established that both the men were engaged in the murder and equally guilty, and so the jury found by their verdict.

Whilst they were considering, the bigger of the two, a very powerful man, made a murderous attack upon the other, whom he evidently looked upon as his betrayer, and tried to kill him in the dock. The struggle was a fearful one, but the warders at last separated them.

They were both sentenced to death and hanged.

[The fact of these men making a noise in entering the house was strongly against them on a question of intent. Burglars work silently, and at the least noise decamp, as a rule. In the present case, there being only one old man to contend against, it was easy to silence him as they did, and as they doubtless intended, when they went to the house.]



CHAPTER XXXIX.

SEVERAL SCENES.

I think I have said that I had a favourite motto, which was, "Never fret." It has often stood me in good stead and helped me to obey it. I was once put to it, however, on my way to open the Commission at Bangor on the Welsh Circuit. The Assizes were to commence on the following day. It was a very glorious afternoon, and one to make you wish that no Assize might ever be held again.

I had engaged to dine with the High Sheriff, who lived three or four miles away from the town, in a very beautiful part of the country; so there was everything to make one glad, except the Assizes. Added to all this pleasurable excitement, the Chester Cup was to be run for in the meanwhile, and I had many old friends who I knew would be there, and whom I should have been glad to meet had it been possible.

The Sheriff had made most elaborate calculations from his Bradshaw and other sources as to the times of departure and arrival by train. I did not know what to do, so arranged with the stationmaster at Chester to shunt my carriage till the afternoon, having no doubt I should be able to fulfil my engagements easily.

It so happened, however, that the racing arrangements of the railway had been completely disturbed by the great crowds of visitors, and the result was that I did not reach Carnarvon at the proper time, and my arrival in that place was delayed for nearly an hour.

Nevertheless, I opened the Commission, and the High Sheriff asked me if I would allow him to go on to his house to receive his guests, whom he had invited to meet me, and permit the chaplain to escort me in the performance of my duties.

Having dressed in full uniform, I got into the carriage with the chaplain, who was quite a lively companion, of an enterprising turn of mind, and desirous of learning something of the world. I could have taught him a good deal, I have no doubt, had I allowed myself to be drawn. My friend had no great conversational powers, but was possessed of an inquiring mind. After we had ridden a little way, to my great amusement he asked me if I had any favourite motto that I could tell him, so that he might keep it in his memory.

"Yes," said I, "I have a very good one," and cheerfully said, "Never fret."

This, when I explained it to him, especially with reference to my business arrangements, seemed to please him very much. It was as good as saying, "Don't fret because you can't preach two sermons from two pulpits at the same time."

He asked if he might write it down in his pocket-book, and I told him by all means, and hoped he would.

"Excellent!" he murmured as he wrote it: "Never fret."

He then asked modestly if I could give him any other pithy saying which would be worthy of remembrance.

"Yes," said I, thinking a little, "I recollect one very good thing which you will do well to remember: Never say anything you think will be disagreeable to other persons."

He expressed great admiration for this, as it sounded so original, and was particularly adapted to the clergy.

"Oh," said he, "that's in the real spirit of Christianity."

"Is that so?" I asked, as he wrote it down in his book; and he seemed to admire it exceedingly after he had written it, even more than the other.

Then he said he really did not like to trouble me, but it was the first time he had had the honour of occupying the position of Sheriff's chaplain, etc.; but might he trouble me for another motto, or something that might go as a kind of companion to the others in his pocket-book?

This a little puzzled me, but I felt that he took me now for a sage, and that my reputation as such was at stake. I had nothing in stock, but wondered if it would be possible to make one for him while he waited.

"Yes," said I, "with the greatest displeasure: Never do anything which you feel will be disagreeable to yourself."

"My lord!" he cried in the greatest glee, "that is by far the best of all; that must go down in my book, it is so practical, and of everyday use."

I was, of course, equally delighted to afford so young a man so much instruction, and thought what a thing it is to be young. However, here was an opportunity not to be lost of showing him how to put to the practical test of experience two at least, if not all three, of the little aphorisms, and I said so.

"I should be delighted, my lord, to put your advice into practice at the earliest opportunity," he answered.

"That will be on Sunday," said I, "at twelve o'clock. Don't preach a long sermon!"

In due time we arrived at the Sheriff's house, and there found all the guests assembled and waiting to meet me. I was quite quick enough to perceive at a glance that they had been planning some scheme to entrap me—at all events, to cause me embarrassment. The ladies were in it, for they all smiled, and said as plainly by their looks as possible, "We shall have you nicely, Judge, depend upon it, by-and-by."

The Sheriff was the chief spokesman. No sooner had we sat down to table than he addressed me in a most unaffected manner, as if the question were quite in the ordinary course, and had not been planned. I answered it in the same spirit.

"My lord, could you kindly tell us which horse has won the Cup?" evidently thinking that I had been to the course.

There was a dead silence at this crucial question—a silence that you could feel was the result of a deep-laid conspiracy—and all the ladies smiled.

Fortunately I was not caught; nor was I even taken aback; my presence of mind did not desert me in this my hour of need; and I said, in the most natural tone I could assume,—

"Yes, I was sure that would be the first question you would ask me when I had the pleasure of meeting this brilliant company, as you knew I must pass through Chester Station; so I popped my head out of the window and asked the porter which horse had won. He told me the Judge had won by a length, Chaplain was a good second, and Sheriff a bad third."

The squire took his defeat like a man.

I was reminded during the evening of a singular case of bigamy—a double bigamy—that came before me at Derby, in which the simple story was that an unfortunate couple had got married twenty years before the time I speak of, and that they had the good luck to find out they did not care for one another the week after they were married. It would have been luckier if they had found it out a week before instead of a week after; but so it was, and in the circumstances they did the wisest thing, probably, that they could. They separated, and never met again until they met in the dock before me—a trysting-place not of their own choosing, and more strange than a novelist would dream of.

But there they were, and this was the story of their lives:—

The man, after the separation, lived for some time single, then formed a companionship, and, as he afterwards heard that his wife had got married to some one else, thought he would follow her example.

Now, if a Judge punished immorality, here was something to punish; but the law leaves that to the ecclesiastical or some other jurisdiction. The Judge has but to deal with the breach of the law, and to punish in accordance with the requirements of the injury to society—not even to the injury of the individual.

I made inquiries of the police and others, as the prisoners had pleaded guilty, and found that all the parties—the four persons—had been living respectable and hard-working lives. There was no fault whatever to be found with their conduct. They were respected by all who knew them.

I then asked how it was found out at last that these people, living quietly and happily, had been previously married.

"O my lord," said a policeman, "there was a hinquest on a babby, which was the female prisoner's babby and what had died. Then it come out afore Mr. Coroner, my lord, and he ordered the woman into custody, and then the man was took."

I thought they had had punishment enough for their offence, and gave them no imprisonment, but ordered them to be released on their own recognizances, and to come up for judgment if called upon.

Now came my sentence. The clergyman of the parish in which this terrible crime had been discovered evidently felt that he had been living in the utmost danger for years. Here these people came to his church, and for aught he knew prayed for forgiveness under the very roof where he himself worshipped.

He said I had done a fine thing to encourage sin and immorality, and what could come of humanity if Judges would not punish?

He denounced me, I afterwards learned, in his pulpit in the severest terms, although I did not hear that he used the same vituperative language towards the poor creatures I had so far absolved. Luckily I was not attending the reverend gentleman's ministration, but he seemed to think the greatest crime I had committed was disallowing the costs of the prosecution. That was a direct incentive to bigamy, although in what respect I never learned.

It sometimes suggested to my mind this question,—

What would this minister of the gospel have said to the Divine Master when the woman caught "in the very act" was before Him, and He said, in words never to be forgotten till men and women are no more, "Neither do I condemn thee"?

I thought those who loved a prosecution of this kind—whoever it may have been—ought to pay for the luxury, and so I condemned them in the costs.



CHAPTER XL.

DR. LAMSON[A]—A CASE OF MISTAKEN IDENTITY—A WILL CASE.

[Footnote A: In this and one or two other cases I am pleased to acknowledge my thanks to my esteemed friend Mr. Charles W. Mathews, the distinguished advocate, for refreshing my memory with the incidents.]

One of the most diabolical cases which came before me while a Judge was one which, although it occupied several days, can be told in the course of a few minutes. I mention it, moreover, not so much on account of its inhuman features as the fact that, in my opinion, Dr. Lamson led the prosecutors—that is, the Government solicitors—into a theory which was calculated by that cunning murderer to save him from a conviction, and it nearly did so.

The story is this:—There was in the year 1873 a family of five children, one of whom died that year and another in 1879, leaving two daughters and a poor cripple boy of eighteen. He was partially paralyzed, and had a malformation of the spine, so that he was an object of great commiseration. He was of a kind and cheerful disposition, and, excepting his spinal affliction, in good health. He seems to have been loved by everybody. His playmates wheeled him about in his chair so that he might enjoy their pastimes, and even carried him up and down stairs. One of this boy's sisters married a Mr. Chapman; the other married a man who was a doctor, or passed as one, of the name of Lamson. He was a man of idle habits, luxurious tastes, and a wicked heart. He was in debt, had fraudulently drawn cheques when he had nothing at the bank to meet them, and was so reduced to poverty that he had pawned his watch and his case of surgical instruments.

By the death of the brother in 1879, the two sisters received each a sum of L800. This boy, Percy, received the like amount, and if he should live to come of age would have a further sum of L3,000; but if he died before that period, one-half would go to Mrs. Chapman and the other half to Mrs. Lamson, the doctor's wife.

Lamson had bought a medical practice at Bournemouth in 1880, but very soon after writs and executions were issued against him.

For three years before Percy's death he had been at school at Blenheim House, Wimbledon.

It appeared from his statement while dying that he felt just "the same as I did once before, when I was at Shanklin with my brother-in-law," the doctor, "after he had given me a quinine pill." "My throat is burning, and my skin feels all drawn up." This pill, however, did not kill him, but it showed, as subsequent events proved, the murderous design of Dr. Lamson.

On December 3 the boy, being still at school and in good health, was amusing himself with his schoolfellows when his brother-in-law, the prisoner, called. Percy was taken into the room to see him. "Well, Percy, old boy," said the doctor, "how fat you are looking!" The doctor sat down, and Percy was seated near him. The visitor then took out of a little bag a Dundee cake and some sweets, and cut a small slice of the cake with his penknife. About fifteen minutes afterwards he said to Mr. Bedbury, the master, "I did not forget you and your boys: these capsules will be nice for them to take nauseous medicines in;" and he took several boxes of capsules from the bag and placed them on the table. One box he pushed towards Mr. Bedbury, asking him to try them.

No one had seen Lamson take a capsule out of the box, but he was seen to fill one with sugar and give it to the boy, saying, "Here, Percy, you are a swell pill-taker." Within five minutes after that the doctor excused himself for going so soon, saying if he did not he would lose his train.

Not long after his departure—that is, between eight and nine—the boy was taken ill and put into bed with all the violent symptoms which are invariably produced by that most deadly of vegetable poisons, aconitine, and he died at twenty minutes past eleven the same night.

Aconitine was found in the stomach; aconitine had been purchased by the doctor before the boy's death, and being well and having been well, the brother-in-law gave him the last thing he swallowed before the dreadful symptoms of the poison betrayed its presence. At that time no chemical test could be applied to aconitine, any more than it could to strychnine in the time of Palmer. But its symptoms were, in the one case as well as in the other, unmistakable, and such as no other cause of illness would produce.

Two pills were found in the boy's play-box, one of which was said to contain aconitine.

Such was the simple case which occupied six days to try. The jury were not long in coming to a conclusion, and returned into court with a verdict of "Guilty."

My awful duty was soon concluded. I told the prisoner the law compelled me to pass upon him the sentence of death; but gave him, both by voice and manner, to understand that in this world there could be no hope for such a criminal. I said, as I thought it right to say, that it was no part of my duty to admonish him as to how he was to meet the dread doom that awaited him, but nevertheless I entreated him to seek for pardon of his great sin from the Almighty. It was my opinion, and I believe that of the counsel for the defence, that, although so much stress was laid upon the capsule and the administration of the poison by that means, it was not so administered, but that the capsule was an artifice, designed to hoodwink the doctors and Treasury solicitors.

To have poisoned the boy in such a manner would have been a clumsy device for so keen and artful a criminal as Lamson; and I knew it was conveyed in another manner. It should be stated that in Lamson's pocket-book were found memoranda as to the symptoms and effect of aconitine, and as to there being no test for its discovery. Lamson therefore had made the poisoning of this boy a careful and particular study. He was not such a clumsy operator as to administer it in the way suggested. The openness of that proceeding was to blind the eyes of detectives and lawyers alike; the aconitine was conveyed to the lad's stomach by means of a raisin in the piece of Dundee cake which Lamson cut with his penknife and handed to him. He knew, of course, the part of the cake where it was.

My attention was directed to the artifice employed by Lamson, by the shallowness of the stratagem, and by the one circumstance that almost escaped notice—namely, the Dundee cake and the curious desire of the man to offer the boy a piece in so unusual a manner. So eager was he to give him a taste that he must needs cut it with his penknife. I was sure, and am sure now, although there is no evidence but that which common sense, acting on circumstances, suggested, that the aconitine was conveyed to the deceased by means of the piece of cake which Lamson gave him, and being carefully placed in the interior of the raisin, would not operate until the skin had had time to digest, and he the opportunity of getting on his journey to Paris, whither he was bound that night, to await, no doubt, the news of the boy's illness and death.

If the poison had been conveyed in the capsule, its operation would have been almost immediate, and so would the detection of the aconitine. As I have said, the contrivance would have been too clumsy for so crafty a mind. A detective would not expect to find the secret design so foolishly exposed any more than a spectator would expect to see the actual trick of a conjurer in the manner of its performance.

I was not able to bring the artifice before the jury; the Crown had not discovered it, and Lamson's deep-laid scheme was nearly successful. His plan, of course, was to lead the prosecution to maintain that he gave the poison in the capsule, and then to compel them to show that there was no evidence of it. The jury were satisfied that the boy was poisoned by Lamson, and little troubled themselves about the way in which it was done.

A singular case of mistaken identity came under my notice during the trial of a serious charge of wounding with intent to do grievous bodily harm. Five men were charged, and the evidence showed that a most brutal mutilation of a gamekeeper's hand had been inflicted. The men were notorious poachers, and were engaged in a poaching expedition when the crime was committed. One of the accused was a young man, scarcely more than a youth, but I had no doubt that he was the cleverest of the gang. The men were convicted, but this young man vehemently protested his innocence, and declared that he was not with the gang that night. His manner impressed me so much that I began to doubt whether some mistake had not been made. The injured keeper, however, whose honesty I had no reason to doubt, declared that this youth was really the man who knelt on his breast and inflicted the grievous injury to his hand by nearly severing the thumb. He swore that he had every opportunity of seeing him while he was committing the deed, as his face was close to his own, and their eyes met.

Moreover, the young man's cap was found close by the spot where the assault took place. About this there was no dispute and could be no mistake, for the prisoner confessed that the cap was his, adding, however, that he had lent it on that night to one of the other prisoners. The youth vehemently protested his innocence after the verdict was given.

So far as he was concerned I was not satisfied with the conviction. "Is it possible," I asked myself, "that there can have been a mistake?" I did not think that in the excitement of such a moment, and during so fearful a struggle with his antagonist, with their faces so close together that they stared into each other's eyes, there was such an opportunity of seeing the youth's face as to make it clear beyond any doubt that he was the man who committed the crime. The jury, I thought, had judged too hastily from appearances—a mistake always to be guarded against.

I invited the prosecuting counsel to come to my room, and asked him, "Are you satisfied with that verdict so far as the youngest prisoner is concerned?"

"Yes," he said; "the jury found him 'Guilty,' and I think the evidence was enough to justify the verdict."

"I do not," I said, "and shall try him again on another indictment." There was another involving the same evidence.

I considered the matter very carefully during the night, and weighed every particle of evidence with every probability, and the more I thought of it the more convinced I was that injustice had been done.

First of all, to prevent the men who I was convinced were rightly convicted from entertaining any doubt about the result of their conviction, I sentenced them to penal servitude.

I then undertook to watch the case on behalf of the young man myself, and did not, as I might have done, assign him counsel.

The prisoner was put up for trial, and the second inquiry commenced. It had struck me during the night that there was a point in the case which had been taken for granted by the counsel on both sides, and that that point was the one on which the verdict had gone wrong. As I have said, I did not doubt the honest belief of the keeper, but I doubted, and, in fact, disbelieved altogether in, the power of any man to identify the face of another when their eyes were close together, as he had no ordinary but a distorted view of the features. In order to test my theory on this matter, I took the real point in the case, as it afterwards turned out to be. It was this: Five men were taken for granted to have been in the gang and in the field on that occasion. The difficulty was to prove that there were only four, and then to show that the young man was not one of the four. These two difficulties lay before me, but I resolved to test them to the utmost of my ability. The Crown was against me and the Treasury counsel.

I knew pretty well where to begin—which is a great point, I think, in advocacy—and began in the right place. I must repeat that the prisoner boldly asserted, when the evidence was given as to the finding of his cap close to the spot where the outrage was committed, that it was his cap, but that he had not worn it on that night, having lent it to one of the other men, whom he then named. This was, to my mind, a very important point in this second trial, and I made a note of it to assist me at a later period of the case. If this was true, the strong corroboration of the keeper's evidence of identity was gone. Indeed, it went a good deal further in its value than that, for it may have been the finding of the prisoner's cap that induced the belief that the man whose face he saw was the prisoner's!

I asked the accused if he would like the other men called to prove his statements, warning him at the same time that it was upon his own evidence that they had been arrested, and pointing out the risk he ran from their ill-will.

"My lord," said he, "they will owe me no ill-will, and they will not deny what I say. It's true; I'm one of 'em, and I know they won't deny it."

Without discarding this evidence I let the case proceed. I asked the policeman when he came into the witness-box if he examined carefully the footprints at the gate where the men entered. He said he had, and was quite positive that there were the footprints of four men only, and further, that these prints corresponded with the shoes of the four men who had been sentenced, and not with those of the prisoner.

It shows how fatal it may be in Judge, counsel, or jury to take anything for granted in a criminal charge. It had been taken for granted at the former trial that five men had entered the field, and how the counsel for the defence could have done so I am at a loss to conceive. It was further ascertained that the same number and the same footprints marked the steps of those coming out of the field. It went even further, for it was proved that no footprints of a fifth man were anywhere visible on any other part of the field, although the most careful search had been made.

If this was established, as I think it was beyond all controversy, it clearly proved that only four men were in the field when the injuries were inflicted. But it might, nevertheless, be that the young man identified was one of the four. Whether he was or not was now the question at issue; it was reduced to that one point. To disprove this the prisoner said he would like the men to be called. I cautioned him again as to the danger of the course he proposed, feeling that he was pretty safe as it was in the hands of the jury. They could hardly convict under my ruling in the circumstances.

"No, my lord," he said; "I am sure they will speak the truth about it. They will not swear falsely against me to save themselves."

The man who was alleged to have borrowed the cap was then brought up, and I asked him if it was true that he wore the prisoner's cap on the night of the outrage. He said, "It is true, my lord; I borrowed it."

"Then are you the man who inflicted the injury on the keeper?"

His answer was, "Unhappily, my lord, I am, and I am heartily sorry for it."

When asked, "Was this young man with you that night?"

"No, my lord," was the answer.

The jury at once said they would not trouble me to sum up the case; they were perfectly satisfied that the prisoner was not guilty, and that what he said was true—that he was not in the field that night. They accordingly acquitted him, to my perfect satisfaction.

Of course, I instantly wrote to the Home Secretary, Mr. H. Matthews (now Viscount Llandaff), who at once procured a free pardon on the former conviction, and the prisoner was restored to liberty.

This case strikingly points to the imperative demand of justice that every case shall be investigated in its minutest detail. The broad features are not by any means sufficient to fix guilt on any one accused, and it is in such cases that circumstantial evidence is often brought in question, while, indeed, the real circumstances are too often not brought to light. Circumstantial evidence can seldom fail if the real circumstances are brought out. Nobody had thought of raising a doubt as to there being five persons in the field.

Upon such small points the great issue of a case often depends.

Another curious case came before me on the Western Circuit. A solicitor was charged with forging the will of a lady, which devised to him a considerable amount of her property; but as the case proceeded it became clear to me that the will was signed after the lady's death, and then with a dry pen held in the hand of the deceased, by the accused himself whilst he guided it over a signature which he had craftily forged. A woman was present when this was done, and as she had attested the execution of the will, she was a necessary witness for the prisoner, and in examination-in-chief she was very clear indeed that it was by the hand of the deceased that the will was signed, and that she herself had seen the deceased sign it. Suspicion only existed as to what the real facts were until this woman went into the box, and then a scene, highly dramatic, occurred in the course of her cross-examination by Mr. Charles Mathews, who held the brief for the prosecution.

The woman positively swore that she saw the testatrix sign the will with her own hand, and no amount of the rough-and-ready, inartistic, and disingenuous "Will you swear this?" and "Are you prepared to swear that?" would have been of any avail. She had sworn it, and was prepared to swear it, in her own way, any number of times that any counsel might desire.

The only mode of dealing with her was adopted. She was asked,—

"Where was the will signed?"

"On the bed."

"Was any one near?"

"Yes, the prisoner."

"How near?"

"Quite close."

"So that he could hand the ink if necessary?"

"Oh yes."

"And the pen?"

"Oh yes."

"Did he hand the pen?"

"He did."

"And the ink?"

"Yes."

"There was no one else to do so except you?"

"No."

"Did he put the pen into her hand?"

"Yes."

"And assist her while she signed the will?"

"Yes."

"How did he assist her?"

"By raising her in the bed and supporting her when he had raised her."

"Did he guide her hand?"

"No."

"Did he touch her hand at all?"

"I think he did just touch her hand."

"When he did touch her hand was she dead?"

At this last question the woman turned terribly pale, was seen to falter, and fell in a swoon on the ground, and so revealed the truth which she had come to deny.



CHAPTER XLI.

MR.J.L. TOOLE ON THE BENCH.

Sir Henry Hawkins was sitting at Derby Assizes in the Criminal Court, which, as usual in country towns, was crowded so that you could scarcely breathe, while the air you had to breathe was like that of a pestilence. There was, however, a little space left behind the dock which admitted of the passage of one man at a time.

Windows and doors were all securely closed, so as to prevent draught, for nothing is so bad as draught when you are hot, and nothing makes you so hot as being stived by hundreds in a narrow space without draught.

He happened to look up into the faces of this shining but by no means brilliant assembly, when what should he observe peeping over the shoulders of two buxom factory women with blue kerchiefs but the head of J.L. Toole! At least, it looked like Mr. Toole's head; but how it came there it was impossible to say. It was a delight anywhere, but it seemed now out of place.

The marshal asked the Sheriff, "Isn't that Toole?"

The answer was, "It looks like him."

We knew he was in the town, and that there was to be a bespeak night, when her Majesty's Judges and the Midland Circuit would honour, etc. Derby is not behind other towns in this respect.

Presently the Judge's eyes went in the direction of the object which excited so much curiosity, and, like every one else, he was interested in the appearance of the great comedian, although at that moment he was not acting a part, but enduring a situation.

In the afternoon the actor was on the Bench sitting next to the marshal, and assuming an air of great gravity, which would have become a Judge of the greatest dignity. There was never the faintest suggestion of a smile. He looked, indeed, like Byron's description of the Corsair:—

"And where his frown of hatred darkly fell, Hope, withering, fled, and Mercy sighed farewell."

A turkey-cock in a pulpit could not have seemed more to dominate the proceedings.

One very annoying circumstance occurred at this Assize. It was the cracking, sometimes almost banging, of the seats and wainscoting, which had been remade of oak. Every now and again there was a loud squeak, and then a noise like the cracking of walnuts. To a sensitive mind it must have been a trying situation, as Toole afterwards said, when you are trying prisoners.

Meanwhile Sir Henry pursued the even tenor of his way, speaking little, as was his wont, and thinking much about the case before him, of a very trumpery character, unless you measured it by the game laws. But no one less liked to be disturbed by noises of any kind than Sir Henry when at work. Even the rustling of a newspaper would cause him to direct the reader to study in some other part of the building.

Suddenly there was a squeaking of another kind distinguishable from all others—it was the squeaking of Sunday boots. In the country no boots are considered Sunday boots unless they squeak. At all events, that was the case in Derbyshire at the time I write of.

The noise proceeded from a heavy farmer, a juror-in-waiting, who was allowed to cross from one side of the court to the other for change of air. His endeavour to suppress the noise of his boots only seemed to cause them the greater irritation. There was a universal titter as the crowd looked up to see what line the Judge would take.

Sir Henry reproved quietly, and just as the farmer, who was prancing like an elephant, had got well in front of the Bench, he said,—

"If that gentleman desires to perambulate this court, he had better take off his boots."

The gravity of the situation was disturbed, but that of the farmer remained, unhappily for him, for, with one foot planted firmly on the ground, and the other poised between heaven and earth, he was afraid to let it come down, and there he stood. "We will wait," said the Judge, "until that gentleman has got to the door which leads into the street." The juryman, Toole told us afterwards, was delighted, for he escaped for the whole Assize.

Although there was much laughter, Toole knew his position and dignity too well to join in it; but he did what any respectable citizen would be expected to do in the circumstances—tried to suppress it, yet made such faces in the attempt that the whole house came down in volleys. But now he was resolved to set matters right, and prevent any further repetition of unseemly conduct. The way he did so is worthy of note. He took a pen, dipped it in the ink, and then, spreading his elbows out as one in great authority, and duly impressed with the dignity of the situation, wrote these words on a sheet of paper, which had the royal arms in the centre, his tongue meanwhile seeming to imitate the motion of his pen: "I have had my eye on you for a long time past, and if I see you laugh again I will send you to prison. Be warned in time."

"Just hand that," said he, giving it to a javelin-man, "to the gentleman there in the green blouse and red hair."

The paper was stuck into the slit of the tapering fishing-rod-like instrument, and placed under the nose of the man who had been laughing. It was some time before he could believe his eyes, but a thrust or two of the stick acted like a pair of spectacles, and convinced him it was intended for his perusal. The effect was instantaneous, and he handed the document to his wife. It was interesting to watch the face of Toole, suffused with good-humour and yet preserving its elastic dignity, in contrast with that of the farmer, which was almost white with terror as they interchanged furtive glances for the next half-hour. However, it all ended happily, for the man never laughed again. Toole was invited to dine at the Judge's dinner, but being himself on circuit, and not at liberty till eleven, when he took supper, an invitation to "look in" was accepted instead, if it were not too late.

After supper he accordingly went for his "look in," and arriving at half-past eleven, was in time for dinner, which did not take place till half-past twelve, the court having adjourned at 12.15. However, we spent a very pleasant evening, Toole telling the story of his going to see Hawkins in the Tichborne trial related elsewhere, and Sir Henry that of the Queen refusing once upon a time to accept a box at Drury Lane Theatre while E.T. Smith was lessee, which made Smith so angry that he could hardly bring himself to propose her Majesty's health at a dinner that same evening at Drury Lane. Nothing but his loyalty prevented his resenting it in a suitable and dignified manner. When one sovereign is affronted by another, the only thing is to consider their respective commercial values, for that, as a rule, is the test of all things in a commercial world. But the sequel was that E.T. said, "Although me and her Majesty have had a little difference, I think on the whole I may propose the Queen!" Fool is he who neglects his Sovereign, and gets in exchange Sovereign contempt. Such was Toole's observation.

It was at this little entertainment that Sir Henry told the story of the banker's clerk and the bad boy—a true story, he said, although it may be without a moral. The best stories, said Toole, like the best people, have no morals—at least, none to make a song about—any more than the best dogs have the longest tails.

A gentleman who was a customer at a certain bank was asked by a bank clerk whether a particular cheque bore his signature.

The gentleman looked at it, and said, "That is all right."

"All right?" said the bank clerk. "Is that really your signature, sir?"

"Certainly," said the gentleman.

"Quite sure, sir?"

"As sure as I am of my own existence."

The clerk looked puzzled and somewhat disconcerted, so sure was he that the signature was false.

"How can I be deceived in my own handwriting?" asked the supposed drawer of the cheque.

"Well," said the clerk, "you will excuse me, I hope, but I have refused to pay on that signature, because I do not believe it is yours."

"Pay!" said the customer. "For Heaven's sake, do not dishonour my signature."

"I will never do that," was the answer; "but will you look through your papers, counterfoils, bank-book, and accounts, and see if you can trace this cheque?"

The customer looked through his accounts and found no trace of it or the amount for which it was given.

At last, on examining the number of the cheque, he was convinced that the signature could not be his, because he had never had a cheque-book with that number in it. At the same time, his astonishment was great that the clerk should know his handwriting better than he knew it himself.

"I will tell you," said the clerk, "how I discovered the forgery. A boy presented this cheque, purporting to have been signed by you. I cashed it. He came again with another. I cashed that. A little while afterwards he came again. My suspicions were then aroused, not by anything in the signature or the cheque, but by the circumstance of the frequency of his coming. When he came the third time, however, I suspended payment until I saw you, because the line under your signature with which you always finish was not at the same angle; it went a trifle nearer the letters, and I at once concluded it was a FORGERY." And so it turned out to be.

"That boy," said Toole, "deserves to be taken up by some one, for he has great talent."

"And in speaking of this matter," said Sir Henry, "I may tell you that bankers' clerks are the very best that ever could be invented as tests for handwriting. Their intelligence and accuracy are perfectly astonishing. They hardly ever make a mistake, and are seldom deceived. The experts in handwriting are clever enough, and mean to be true; but every expert in a case, be he doctor, caligrapher, or phrenologist, has some unknown quantity of bias, and must almost of necessity, if he is on the one side or the other, exercise it, however unintentional it may be. The banker speaks without this influence, and therefore, if not more likely to be correct, is more reasonably supposed to be so.

"Do you remember, Sir Henry," asked Toole, "what the clever rogue Orton wrote in his pocket-book? 'Some has money no brains; some has brains no money; them as has money no brains was made for them as has brains no money.'"

"Just like Roger," said Sir Henry. This was a catch-phrase in society at the time of the trial.

Some one recited from a number of Hood's Comic Annual the following poem by Tom Hood:—

A BIRD OF ANOTHER FEATHER.[A]

[Footnote A: These lines appeared about 1874, and I have to make acknowledgments to those whom I have been unable to ask for permission to reproduce, and trust they will accept both my apologies and thanks.]

"Yestreen, when I retired to bed, I had a funny dream; Imagination backward sped Up History's ancient stream. A falconer in fullest dress Was teaching me his art; Of tercel, eyas, hood, and jess, The terms I learnt by heart.

"He flew his falcon to attack The osprey, swan, and hern, And showed me, when he wished it back, The lure for its return. I thought it was a noble sport; I struggled to excel My gentle teacher, and, in short, I managed rather well.

"The dream is o'er, and I to-day Return to modern time; But yet I've something more to say, If you will list my rhyme. I've been a witness in a case For seven long mortal hours, And, cross-examined, had to face The counsel's keenest powers.

"With courteous phrase and winning smiles He led me gently on; I fell a victim to his wiles— But how he changed anon! 'Oh, you're prepared to swear to that!' And, 'Now, sir, just take care!' And, 'Come, be cautious what you're at!' With questions hard to bear.

"And when he'd turned me inside out, He turned me outside in; I knew not what I was about— My brain was all a-spin, I'm shaking now with nervous fright, And since I left the court I've changed my dream-opinion quite— I don't think Hawkins sport!"

Before concluding the evening, Toole said,—

"You remember your joke, Sir Henry, about Miss Brain and her black kids?"

"Not for the world, not for the world, my dear Toole!"

"Not for the world, Sir Henry, not for the world; only for us; not before the boys! You said it was the best joke you ever made."

"And the worst. But I was not a Judge then."]



CHAPTER XLII.

A FULL MEMBER OF THE JOCKEY CLUB.

I knew a great many men connected with the Turf, from the highest to the humblest; but although I have spent the most agreeable hours amongst them, there is little which, if written, would afford amusement: everything in a story, a repartee, or a joke depends, like a jewel, on its setting. At Lord Falmouth's, my old and esteemed friend, I have spent many jovial and happy hours. He was one of the most amiable of hosts, and of a boundless hospitality; ran many distinguished horses, and won many big races. I used to drive with him to see his horses at exercise before breakfast, and in his company visited some of the most celebrated men of the day, who were also amongst the most distinguished of the Turf. Amongst these was Prince B——, whose fate was the saddest of all my reminiscences of the Turf. I almost witnessed his death, for it took place nearly at the moment of my taking leave of him at the Jockey Club. There was a flight of stairs from where I stood with him, leading down to the luncheon-room, and there he appears to have slipped and fallen.

I don't know that it was in consequence of this accident, or whether it had anything to do with it, but I seemed after this sad event to have practically broken my connection with the Turf, and yet perhaps I was more intimately attached to it than ever, for Lord Rosebery asked me (I being an honorary member of the Jockey Club) whether there was any reason, so far as my judicial position was concerned, why I should not be elected a full member. I said there was none. So his lordship proposed me, and I was elected.

The only privilege I acquired by "full membership" was that I had to pay ten guineas a year subscription instead of nothing. I almost regularly had the honour of being invited, with other members of the club, to the entertainment given by H.R.H. the Prince of Wales on the Derby night—a festivity continued since his Majesty's accession to the throne. Nor shall I forget the several occasions on which I have had the honour to be the guest of his gracious Majesty at Sandringham; and I mention them here to record my respectful gratitude for the kindness and hospitality of their Majesties the King and Queen whenever it has been my good fortune to be invited.

Speaking, however, of racing men, I have always thought that the passion for gambling is one of the strongest propensities of our nature, and once the mind is given to it there is no restraint possible, either from law or pulpit. Its fascination never slackens, and time never blunts the keen desire of self-gratification which it engenders, while the grip with which it fastens upon us is as fast in old age as in youth. It will absorb all other pleasures and pastimes. I will give an instance of what I mean. There was a well-known bookmaker of my acquaintance whose whole mind was devoted to this passion; his lifetime was a gamble; everything seemed to be created to make a bet upon. Do what he would, go where he would, his thoughts were upon horse-racing.

I was staying with Charley Carew, the owner and occupier of Beddington Park, with a small party of guests invited for shooting. One morning there was to be a rabbit-killing expedition, and after a pretty good morning's walk, I had a rest, and then leisurely went along towards the trysting-place for lunch. It was a large oak tree, and as I came up there was Hodgman, the bookie, who did not see me, walking round the rabbits, which lay in rows, counting them, and muttering, "Two—four—twenty," and so on up to a hundred. He then paused, and after a while soliloquized, "Ah! fancy a hundred! One hundred dead uns! What would I give for such a lot for the Chester Cup!"

His mind was not with the rabbits except in connection with his betting-book on the Chester Cup. He was by no means singular except in the manner of showing his propensity. The devotees of "Bridge" are all Hodgmans in their way.

At the Benchers' table I was speaking of Clarkson in reference to the Old Bailey. He had been with me in consultation in a very bad case. We had not the ghost of a chance of winning it, and indicated our opinion to that effect to the unhappy client.

He turned from us with a sad look, as if desperation had seized him, and then, with tears in his eyes, asked Clarkson if he thought it advisable for him to surrender and take his trial.

"My good man," said Clarkson, "it is my duty as a loyal subject to advise you to surrender and take your trial, but, if I were in your shoes, I'll be damned if I would!"

The man, however, for some reason or other, did surrender like a good citizen, and the man who did not appear was his own leading counsel Clarkson. He never even looked in, and the conduct of the case, therefore, devolved on me. I did my best for him, however, and succeeded. The man was acquitted.

Not content with this piece of good fortune, for such indeed it was, he was ill-advised enough to bring an action for malicious prosecution. Lord Denman tried it, and told him it was a most impudent action, and he was astonished that he was not convicted.

During this conversation another, of no little importance, took place, and Lord Westbury is reported to have said,—

"I did not assert that the House of Lords had abolished hell with costs, although I have no doubt that the large majority would gladly assent to any such decree—all, in fact, except the Bishops."

As I never listen to after-dinner theology, I forbear comment on this subject; but before this time there had been a curious action brought by a churchwarden against his vicar for refusing to administer the Sacrament to him, on the ground that he did not believe in the personality of the devil. After the decisions in the courts below, it was finally determined by the House of Lords that the vicar was wrong. Hence it was that Westbury was reported to have said that the House of Lords had abolished hell with costs. "What I did say," said Westbury, "was that the poor churchwarden who did not at one time believe in the personality of the devil returned to the true orthodox Christian faith when he received his attorney's bill."

Turning to me, his lordship said,—

"My dear Hawkins, you shall write your reminiscences, and, what is more, they shall be printed in good type, and, what is more, the first copy shall be directed to me."

And so it should be, if I only knew his address.



CHAPTER XLIII.

THE LITTLE MOUSE AND THE PRISONER.

I come now to a small event which occurred during my judgeship, and which I call my little mouse story.

I was presiding at the Old Bailey Sessions, and a case came before me of a prisoner who was undergoing a term of two years' imprisonment with hard labour for some offence against the Post Office.

The charge against him on the present occasion was attempting to murder or do grievous bodily harm to a prison warder. This officer was on duty in the prisoner's cell when the assault took place.

The facts relied on by the Crown were simple enough. The warder had gone into the cell to take the man's dinner, when suddenly the prisoner seized the knife brought for his use, and made a rush at the warder with it in his hand, at the same time uttering threats and imprecations.

Believing his life to be in danger, the warder ran to the door and got outside into the adjoining corridor, pulling the cell door to after him and closing it.

He had no sooner escaped than the prisoner struck a violent blow in the direction the warder had gone, but the door being closed, it fell harmlessly enough. It left such a mark, however, that no doubt could be entertained as to the violence with which it was delivered and the probable result had it reached the warder himself.

Thus presented, the case looked serious. Mr. Montagu Williams, who was counsel for the Crown, felt it to be, as it undoubtedly was, his duty in common fairness to present not only the bare facts necessary for his own case, but also those which might be relied upon by the prisoner as his defence, or at all events in mitigation of punishment. In performing this duty, he elicited from his witness a very touching little history of the origin and cause of the crime. It was this:—

A poor little mouse had, somehow or other, managed to get inside the prisoner's cell; and one day, while the unhappy man was eating his prison fare, he saw the mouse running timidly along the floor. At last it came to a few crumbs of bread which the prisoner had purposely spread, and ran away with one of them into its hiding-place. The next day it came again, and found more crumbs; and so on from day to day, the prisoner relieving the irksomeness and the weary solitude of his confinement by tempting it to trust him, and become his one companion and friend, till at last it became so tame that it formed a little nest, and made its home in the sleeve of the prisoner's jail clothes. During the long hours of the dreary day it was his companion and pet; played with him, fed with him, and mitigated his solitude. It even slept with him at night.

All this was, of course, against the prison rules. But the mouse had no reason to obey them.

One unhappy day a warder came into the cell, when the poor mouse peeped out from his tiny hiding-place, and the officer, I presume, as a matter of duty, seized the little intruder on the spot and captured it.

God help the world if every one did his strict duty in it! But—what to the prisoner seemed inexcusable barbarity—he killed the poor little mouse in the sight of the unhappy man whose friend and companion it had been.

This infuriated him to such an extent that, having the dinner-knife in his hand—the knife which would have assisted at the mouse's banquet as well as his own—he rushed at the warder, who fortunately escaped through the open door of the cell, the prisoner striking the knife into the door.

In the result the prisoner was indicted on the charge of attempting to murder the warder. The defence was that, as murder in the circumstances was impossible, the attempt could not be established, and on the authority of a case (which has, however, since been overruled) I felt bound to direct an acquittal; and I confess I was not sorry to come to that conclusion, for it would have been a sad thing had the prisoner been convicted of an offence committed in a moment of such great and not unnatural excitement, and one for which penal servitude must have been awarded.

The poor fellow had suffered enough without additional punishment. I can conceive nothing more keen than the torture of returning to his cell to grieve for the little friend which could never come to him again.



CHAPTER XLIV.

THE LAST OF LORD CAMPBELL—WINE AND WATER—SIR THOMAS WILDE.

Life, alas! must have its sad stories as well as its mirthful. I have told few of the former, not because they have not been present to my mind, but because I think it useless to perpetuate them by narration. But for its occasional gleams of humour, life would indeed be dull, and ever eclipsed by the shadow of sorrow.

One of the stories the Chief Baron told me is as indelibly fixed on my memory as it was on his. Lord Campbell had been so long and so prominently before the country that his death would be a theme of conversation in the world of literature, science, law, and fashion. But it was not his death that impressed me; it was the incidents that immediately attended it.

"His lordship"—thus was the event related—"had been entertaining a party at dinner, and amongst them was his brother-in-law, Colonel Scarlett. In its incidents the dinner had been as lively and agreeable as those events in social and refined life usually are. Scarlett had an important engagement with Campbell in the city on the following Monday, this being Saturday night. As he rose to go Scarlett wished his host good-night with a hearty shake-hands.

"'Good-night—good-night; we shall meet again on Monday.'"

Alas! Campbell died that night suddenly, and by a singular interposition of Providence, Scarlett died suddenly the next day, Sunday. They met no more in this world.

* * * * *

In the course of my life I have suffered, like many others, from nameless afflictions—nameless because they do not exist. No one can localize this strange infirmity or realize it. You only know you have a sensation of depression. In every other respect I was perfectly well, yet I thought it was necessary to see a doctor. So it was, if I wished to be ill.

Being in this unhappy condition, I consulted Sir James Paget, then in the zenith of his fame.

It did not take him very long to test me. I think he did it with a smile, for I felt a good deal better after it.

"Just tell me," said he, "do you ever drink any water?"

"Now it's coming," I thought; "he's going to knock me off my wine." I thought, however, I would be equal to the occasion, and said,—

"I know what you are driving at: you want to know if I ever mix a little water in my wine."

"No, no, I don't," said he; "you are quite wrong, for if your water is good and your wine bad, you spoil your water; and if your wine is good and your water bad, you spoil your wine."

I took his advice—which was certainly worth the fee—and never mixed my wine with water after that, although I have some doubt as to whether I had ever done so before.

I came away in good heart, because I was so delighted that there was not a vestige of anything the matter with me.

With a view to enable me to give each case due consideration before fixing the poor wretch's doom after conviction, I invariably ordered the prisoner to stand down until all were tried.

I then spent a night in going through my notes in each case, so that if there were any circumstances that I could lay hold of by way of mitigation of the sentence, I did so.

I do not mean to say that I did this in trifling cases, such as a magistrate could dispose of, but in all cases of magnitude possibly involving penal servitude.

Once, however, I had made up my mind as to what was, in accordance with my judgment, the sentence to be passed, I took care never to alter it upon any plea in mitigation whatever.

For this line of conduct I had the example of Sir Thomas Wilde, when, as Lord Chief Justice of the Court of Common Pleas, he travelled the Home Circuit. He was a marvellous and powerful judge in dealing with the facts of a case. He had tried a prisoner for larceny in stealing from a house a sack of peas. The prisoner's counsel had made for him a very poor and absurd defence, in which, over and over again, he had reiterated that one pea was very like another pea, and that he would be a bold man who would swear to the identity of two peas.

This miserable defence made the Lord Chief Justice angry, and he summed up the case tersely but crushingly to this effect: "Gentlemen, you have been told by the learned counsel very truly that one pea is very like another pea, and if the only evidence in this case had been that one pea had been taken from the house of the prosecutor, and a similar pea had been found in the prisoners house, I for one should have said it would have been insufficient evidence to justify the accusation that the prisoner had taken it.

"But such are not the facts of this case; and when you find, as was the fact here, that on March 30 a sack appears in a particular place, marked with the prosecutor's initials, safe in his house at night, where it ought to have been but was not, on the morning of the 31st; and when you find that on that morning a sack of peas of precisely similar character was in the house of the prisoner in a precisely similar sack behind the door, the question very naturally arises, How came those peas in that man's house? He says he found them; do you believe him? Did it ever occur to you, gentlemen, to find a similar sack of peas in the dead of the night on any road on which you chanced to be travelling?

"The prosecutor says the prisoner stole them, and that is the question I ask you to answer. Did he or not, in your opinion, steal them?"

I need not say what the verdict was. The man was put back for sentence. That is the point I am upon.

On the following morning the Lord Chief Justice, still a bit angry with the prisoner's counsel for the miserable imposture he had attempted upon the jury, said,—

"God forbid, prisoner at the bar, that the defence attempted by your counsel yesterday should aggravate the punishment which I am about to inflict upon you; and with a view to dispel from my mind all that was then urged on your behalf, I have taken the night to consider what sentence I ought to pronounce."

Having said thus much about the speech for the defence, he gave a very moderate sentence of two or three months' imprisonment. Every sentence that this Chief Justice passed had been well thought out and considered, and was the result of anxious deliberation—that is to say, in the serious cases that demanded it. Of course, I do not claim for my adopted system an infallibility which belongs to no human device, but only that during some years, by patiently following it, I was enabled the better to determine how I could combine justice with leniency.



CHAPTER XLV.

HOW I CROSS-EXAMINED PRINCE LOUIS NAPOLEON.

I have been often questioned in an indirect manner as to the amount of my income and the number of my briefs. I do not mean by the Income Tax Commissioners, but by private "authorities." I was often told how much I must be making. Sometimes it was said, "Oh, the Associates' Office verdict books show this and that." "Why, Hawkins, you must be making thirty thousand a year if you are making a penny. What a hard-working man you are! How do you manage to get through it?"

Well, I had no answer. It is a curious inquisitiveness which it would do no one any good to gratify. I did not think it necessary to the happiness of my friends that they should know, and if it would afford me any satisfaction, it was far better that they should name the amount than I. They could exaggerate it; I had no wish to do so. It is true enough in common language I worked hard, but working by system made it easy. Slovenly work is always hard work; you never get through it satisfactorily. It was by working easily that I got through so much. "Never fret" and "toujours pret" were my mottoes, as I told the chaplain; I hope he remembers them to this day. If they would not help him to a bishopric, nothing would. But I will say seriously that nothing is so great a help in our daily struggles as good temper, and with that observation I leave my friends still to wonder how I got through so much.

Judges often talk over their experiences at the Bar. Sometimes I talked of mine, and on one occasion told the following curious incident in my long career.

I mention this circumstance as a curiosity only so far as the incident is concerned, but as more than a curiosity so far as the legality of evading the substance of the law by a technicality is concerned.

All men are not privileged to cross-examine royalty, and especially future emperors.

On July 1, 1847, which was not very long after my call to the Bar, Prince Louis Napoleon, who afterwards became Emperor of the French, was residing in England.

Of course, in looking back upon a man who afterwards became an Emperor, the proportions seem to have altered, and he looks greater than his figure actually was. He is more important in one's eyes, and therefore from this point of view the event seems to be of greater magnitude than the mere police-court business that it was. When a man becomes great, the smallest details of his career increase in value and importance.

The Prince had given a man of the name of Charles Pollard into custody for stealing and obtaining by fraud two bills of exchange for L1,000 each.

I was instructed by one Saul (not of Tarsus) to defend, and old Saul thought it would be judicious to cross-examine the Prince into a cocked hat, little dreaming what kind of a cocked hat our opponent would one day wear.

But Saul, not content with this ordinary drum-beating kind of Old Bailey performance, in which there is much more alarm than harm, instructed me to make a few inquiries as to the Prince's private life, and so show him up in public. Saul loved that kind of persecution. To him the witness-box was a pillory, notwithstanding there was more mud attaching to the throwers than to the mere object of their attention.

Young as I was in my profession, I had sense enough to know that to dip into a prosecutor's private history, and the history of his father and grandfather, and a succession of grandmothers and aunts, was hardly the way to show that the prisoner had not stolen that gentleman's property, but was a good way to prevent the Prince from recommending him to mercy.

I therefore, in my simplicity, asked old Saul what the uncle of the Prince and his voyage in the Bellerophon, etc., had to do with this man's stealing these two bills of exchange.

"Never mind, Mr. Hawkins, you do it; it has a great deal to do with it."

However, I made up my own mind as to the course I should pursue, and having carefully read my "instructions," found that the man had been unjustly accused by this Napoleon—there never was a man so trampled on—and every word of the whole accusation was false. So did some solicitors instruct young counsel in those days.

I started my business of cross-examination, accordingly, with a few tentative questions, testing whether the ice would bear before I took the other foot off dry land. It did not seem to be very strong, I thought. Some of them were a little bewildering, perhaps, but that, doubtless, was their only fault, which the Prince was desirous of amending, and he graciously appealed to me in a very sensible manner by suggesting that if I would put a question that he could answer, he would do so.

I thought it a fair offer, even from a Prince, if I could only trust him. I kept my bargain, and definitely shaped my examination so that "Yes" and "No" should be all that would be necessary.

We got on very well indeed for some little time, his answers coming with great readiness and truth. He was perfectly straightforward, and so was I.

"Yes, sir," "No, sir;" that was all.

As I have said, at this time I had not had much experience in cross-examination, but I had some intuitive knowledge of the art waiting to be developed. Napoleon gave me my first lesson in that department.

"I am afraid, sir," said his Highness, "you have been sadly misinstructed in this case."

"I am afraid, sir, I have," said I. "One or the other of us must be wrong, and I am much inclined to think it's my solicitor."

It was a nice little bull, which the Prince liked apparently, for he laughed good-humouredly, and especially when I found, as I quickly did, that my strength was to sit still, which I also did.

I had learned by this exhibition of forces that there was a defence, if I could only keep it up my sleeve. To expose it before the magistrate would simply enable Clarkson, who was opposed to me, to bring up reinforcements, and knock me into a cocked hat instead of Napoleon. Old Saul knew nothing whatever about my intended manoeuvre, nor did Clarkson or his solicitor.

I knew the man would be committed for trial; the magistrate had intimated as much. I therefore said nothing, except that I would reserve my defence.

Had I said a word, Clarkson would have shaped his indictment to meet the objection which I intended to make; the man, however, was committed to the Old Bailey in total ignorance of what defence was to be made.

The case was tried before Baron Alderson, as shrewd a Judge, perhaps, as ever adorned the Bench.

When I took my point, he at once saw the difficulty Napoleon was in—a difficulty from which no Napoleon could escape even by a coup d'etat.

It was, in fact, this—simple as A B C:—

When the bills of exchange were received by Pollard, although he intended to defraud, they were neither drawn nor accepted, and so were not bills of exchange at all; another process was necessary before they could become so even in appearance, and that was forgery.

Moreover, there was included in this point another objection—namely, that the stamps signed by the Prince having been handed to him with the intention that they should be subsequently filled up, they were not valuable securities (for stealing which the ill-used Pollard was indicted) at the time they were appropriated, and could not therefore be so treated.

In short, the legal truth was that Pollard neither stole nor obtained either bill of exchange (for such they were not at that time) or valuable security.

Such was the law. I believe Napoleon said the devil must have made it, or worked it into that "tam shape!"

There were many technicalities in the law of those days, and justice was often defeated by legal quibbles. But the law was so severe in its punishments that Justice herself often connived at its evasion. At the present day there is a gradual tendency to make punishment more lenient and more certain—to remove the entanglements of the pleader, and render progress towards substantial instead of technical justice more sure and speedy. Napoleon's defeat could not have occurred at the present day—not, at all events, in that "tam shape."

In a case in which the member of St. Ives was petitioned against on the ground of treating, before Lush, J., I was opposed by Russell (afterwards Lord Chief Justice and Lord Russell of Killowen). A.L. Smith was my junior, and I need not say he knew almost everything there was to be known about election law. There was, however, no law in the case. No specific act of treating was proved, but we felt that general treating had taken place in such a wholesale manner that our client was affected by it. So we consented to his losing his seat—that is to say, that the election should be declared void—merely void. As the other side did not seem to be aware that this void could be filled by the member who was unseated, they did not ask that our client should not be permitted to put up for the vacancy, although this was the real object of my opponent's petition. He wanted the seat for himself, but knew that he had not the remotest chance against his unseated opponent.

His surprise, therefore, must have been as great as his chagrin when, the very night of the decision which unseated him, he came forward once more as a candidate. The petition had increased his popularity, and he won the seat with the greatest ease, and without any subsequent disturbance by the former petitioner.

I have told you of a curious trial before a Recorder of Saffron Walden, and my memory of that event reminds me of another which took place in that same abode of learning and justice. Joseph Brown, Q.C., and Thomas Chambers, Q.C., were brother Benchers of mine, and when we met at the Parliament Chamber after dinner it was more than likely that many stories would be told, for we often fought our battles over again.

At the time I speak of Knox was the Recorder of that important borough, and was possessed of all the dignity which so enhances a great officer in the eyes of the public, whether he be the most modest of beadles in beadledom, or the highest Recorder in Christendom. To give himself a greater air of importance, Knox always carried a blue umbrella of a most blazing grandeur. He was looked up to, of course, at Saffron Walden, as their greatest man, especially as he occupied the best apartments at the chief brimstone shop in the town. When I say brimstone, I mean that it seemed to be its leading article; for there were a great many yellow placards all over and about the emporium, which, perhaps, ought to have been called a "general shop."

There were three men up before Knox for stealing malt; a very serious offence indeed in Saffron Walden, where malt was almost regarded as a sacred object—until it got into the beer.

"Tom" Chambers (afterwards Recorder of London) was defending these prisoners, and I have no doubt, from the conduct of Knox, acquired a great deal of that discrimination of character which afterwards so distinguished him in the City of London. The degrees of guilt in these persons ought to be noted by all persons who hold, or hope to hold, a judicial position. As to the first man, the actual thief, there could be no doubt about his crime, for he was actually wheeling the two or three shovelfuls of malt in a barrow; so there was not much use in defending him.

About the second man there was not the same degree of certainty, for he had never touched the malt or the barrow, and there was no evidence that he knew the first man had stolen it. The only suspicion—for it was nothing more—against him was that he was seen to be walking along the highway near the man who was wheeling the barrow, and as it was daytime, many others were equally guilty.

The third man was still less implicated, for all that appeared against him was that at some time or other he had been seen, either on the day of the theft or just before, to be in a public-house with the thief and asking him to have a drink.

If it had not been at Saffron Walden, where they are so jealous of their malt and such admirers of their maltsters, there would have been no case against any one but the actual thief; and if the Recorder had known the law as well as he knew Saffron Walden, or half as much as Saffron Walden admired him, he would have ruled to that effect.

However, he pointed out to the jury the cases one by one with great care and no stint of language.

"Against the first," said he, "the case is clear enough: he is caught with the stolen goods in his possession. In the second case, perhaps, it is not quite so strong, you will think; but it is for you, gentlemen, not for me, to judge. You will not forget, gentlemen, he was walking along by the side of the actual thief, and it is for you to say what that means." Then, after clearing his throat for a final effort, he said,—

"Now we come to the third man. Where was he? I must say there is a slight difference between his case and that of the other two men, who might be said to have been caught in the very act; but it's for you, gentlemen, not for me. It is difficult to point out item by item, as it were, the difference between the three cases; but you will say, gentlemen, whether they were not all mixed up in this robbery—it's for you, gentlemen, not for me."

The jury were not going to let off three such rogues as the Recorder plainly thought them, and instantly returned a verdict of guilty against all.

"I agree with the verdict," said the Recorder. "It is a very bad case, and a mercantile community like Saffron Walden must be protected against such depredators as you. No doubt there are degrees of guilt in your several cases, but I do not think I should be doing my duty to the public if I made any distinction in your sentences: you must all of you undergo a term of five years' penal servitude."

Whereupon Tom Chambers was furious. Up he jumped, and said,—

"Really, sir; really—"

"Yes," said Knox, "really."

"Well, then, sir, you can't do it," said the counsel; "you cannot give penal servitude for petty larceny. Here is the Act" (reading): "'Unless the prisoner has been guilty of any felony before.'"

"Very well," said the Recorder; "you, Brown, the actual thief, and you, Jones, his accessory in the very act, not having been convicted before, I am sorry to say, cannot be sentenced to more than two years' imprisonment with hard labour, and I reduce the sentence in your cases to that; but as to you, Robinson, yours is a very bad case. The jury have found that you were mixed up in this robbery, and I find that you have been convicted of stealing apples. True, it's a good many years ago, but it brings you within the purview of the statute, and therefore your sentence of five years will stand."



CHAPTER XLVI.

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.



CHAPTER XLVII

A FAREWELL MEMORY OF JACK.

Poor little Jack is dead!

It is a real grief to me. A more intelligent, faithful, and affectionate creature never had existence, and to him I have been indebted for very many of the happiest hours of my life.

Poor dear little Jack! he lived with me for many years; and at last, I believe, some miscreant poisoned him, for he was taken very ill with symptoms of strychnine, and died in a few hours in the early morning of May 24, 1894. I was with him when he died.

I never replaced him, and to this hour have never ceased to be sad when I think of the merciless and cruel fate by which the ruffian put an end to his dear little life.

He was buried under some shrubs in Hyde Park, where I hope he sleeps the sleep of good affectionate dogs.

It is ten years ago, and yet there is no abatement of my love for him, hardly any of my sorrow. He always occupied the best seat in the Sheriff's carriage on circuit, and looked as though he felt it was his right. He slept by my side on a little bed of his own. At Norwich, I think, he made his first appearance in state. The moment he entered the house he appropriated to himself the chair of state, which had been provided by the local upholsterer for the express use of Queen Alexandra, then Princess of Wales, on her first visit to Norwich to confer honour and happiness on Queen Victoria's subjects in the eastern counties.

Nobody, however, molested Jack in his seat, and, I believe, had it been one of the seats for the county there would have been no petition to disturb him. He would have been as faithful a member as the immortal Toby, M.P. for Barkshire, of Mr. Punch, to whom ever my best regards. Jack considered himself entitled to precedence wherever he went, and maintained it. He was a famous judge of upholstery, and the softest chair or sofa, hearthrug or divan, was instantly appropriated. This sometimes made the local dignitaries sit up a little. They might be accustomed to the dignity of one of her Majesty's Judges, but the impudence of her Majesty's "Jack"—for so he deemed himself on circuit—was a little beyond their aldermanic natures.

I was much and agreeably surprised to find that the Press everywhere sympathized with my loss of Jack, and many an extract I made containing their very kind remarks. My room might have been one of Romeike's cutting-rooms. Here is one I will give as a sample. I am sorry I cannot positively state the name of the journal, but I am almost sure it is from the Daily Telegraph.

"An item of judicial intelligence, which may not everywhere be duly appreciated, is the death of Mr. Justice Hawkins's fox terrier Jack. Jack has been his lordship's most constant friend for many years. With some masters such a useful dog as he was would have found going on circuit a bore; but with Sir Henry Hawkins, who knows what kind of life suits a dog, and likes to see that he enjoys it, going on circuit was a career of adventure. The Judge was always out betimes to give Jack a long morning walk, and when his duties took him to small county towns he often rose with the farmers for no other purpose."

Here is another paragraph; and I should like to be able to give the writer's name, for it is very pleasant at all times to find expression of true love for animals, whose devotion and faithfulness to man endear them to us:—

"Sir Henry Hawkins has my sincere sympathy in his great bereavement. Jack, the famous fox terrier who accompanied his master everywhere, is dead. Innumerable are the things told of Jack's devotion to Sir Henry, and of Sir Henry's devotion to Jack. I first made their acquaintance at Worcester Railway Station some years ago, when I saw Jack marching solemnly in the procession of officials who had come with wands and staves and javelins to receive Sir Henry Hawkins at the opening of the Assizes. Jack was on one or two special occasions, I believe, accommodated with a seat on the Bench; and at Maidstone, when the lodgings caught fire, Sir Henry rushed back at the risk of his life to save his faithful little dog."