Part 32 (2/2)

Every person who had that legal duty imposed upon him was criminally responsible if he culpably neglected that duty, and the death of the person for whom he ought to provide ensued. If the death was the result of mere carelessness and without criminal intent, the offence would be manslaughter, provided the jury came to the conclusion that there had been culpable neglect of the duty cast upon the individual who had undertaken to perform it.”

With regard to the evidence of one of the witnesses who was said to be an accomplice, so that it was necessary that she should be corroborated, I said a jury might convict without it, but recommended them strongly not to take for granted her evidence unless they found there was so much corroboration of her testimony as to induce them to believe she was telling the truth.

As to one of the accused, I said: ”If she had no legal object to fulfil in providing the deceased with the necessaries of life, the mere omission to do so would not render her guilty; but if she did an act wrongfully which had a tendency to destroy life, but which was not clone with that intention, she would be guilty of manslaughter.”

The jury found a verdict of guilty against all, but with a strong recommendation in favour of one, in which I joined.

When a verdict of guilty of wilful murder is returned, a Judge, whatever may be his opinion of its propriety or justice, has no alternative but to deliver the sentence of death, and in the very words the law prescribes. It is not _his_ judgment or decision, but it is so decreed that the sentence shall in no way depend upon the sympathy or opinion of the Judge. Whatever mitigating circ.u.mstances there may be must be considered by the Secretary of State for the Home Department as representing the Sovereign, and upon his advice alone the Sovereign acts.

But the Home Secretary never allows a sentence of death to be executed without the fullest possible inquiry as to mitigating circ.u.mstances, and it is at this stage that the opinion of the Judge is almost all-powerful.

My judgment in this case was the result of much anxious thought and consideration. The responsibility cast upon me was great. The case was as difficult as it was serious; but my line of duty was plain, and it was to leave the facts as clearly as I could possibly state them, with such explanation of the law applicable to each case as my ability would allow, and then leave the jury to find according to their honest belief. No duty more arduous has ever since been imposed upon me, and I performed it in my honest conscience, without swerving from what I believed, and believe still, to be my strict line of duty.

I have had many opportunities of reconsidering the whole circ.u.mstances, but I have never changed or varied my opinion after all these years, and am certain I never shall--namely, that I did my duty according to the best of my judgment and ability.

A Judge may go wrong in many ways, and often does in one way or other, especially if he does not know his own mind--the worst of all weaknesses, because it usually leads to an attempt to strike a medium line between innocence and guilt.

One great weakness, too, in a Judge is not having the faculty of setting out the facts in language which is intelligible to the jury, or in not setting them out at all, but repeating them so often and in so many forms that they are at last left in an absolutely hopeless muddle. A Judge once kept on so at the jury about ”if you find burglarious intent, and if you don't find burglarious intent,” that at last the jury found nothing except a verdict of not guilty, giving the ”benefit of the doubt as to what the Judge meant.”

As an ill.u.s.tration of the necessity of giving the jury a clear idea of the evidence in the simplest case, I will state what took place at Exeter. Juries are unused to evidence, and have very often to be told what is the bearing of it. In a case of fowl-stealing which I was trying, there was a curious defence raised, which seemed too ridiculous to notice. It was that the fowls had crept into the nose-bag in which they had been found, and which was in the prisoner's possession, in order to shelter themselves from the east wind.

Forgetting that possibly I had an unreasoning and ignorant jury to deal with, I thought they would at once see through so absurd a defence, and did not insult their common sense by summing up. I merely said,--

”Gentlemen, do you believe in the defence?”

They put their heads together, and kept in that position for some time, and at last, to my utter amazement, said,--

”We do, my lord; we find the prisoner _not guilty_.”

It was a verdict for the prisoner and a lesson for me.

It was always my practice, founded on much calculation of the respective and relative merits and demerits of prisoners, to do what no other Judge that I am aware of ever did, which was to put convicted prisoners back until the whole calendar had been tried, then to bring them up and pa.s.s sentence after deliberate consideration of every case. I thus had the opportunity of reading over my notes and forming an opinion as to whether there were any circ.u.mstances which I could take into consideration by way of mitigation, or, in the same manner, as to whether there were matters of aggravation, such as cruelty or deliberate, wilful malice. The result of this plan on one occasion at Stafford a.s.sizes, which I remember very well, was this. Two men were convicted of bigamy. The offence was the same in law as to both the prisoners. The one was altogether, physically and morally, a brute, cruel and merciless. The other man found guilty had been a bad husband to his wife before he went through the form of the second marriage; but as he had been already punished for his misconduct in that respect, I thought it fair that he should not be punished again for the same offence. Such is my idea of the law of England, although I fear it is sometimes forgotten. I therefore treated this man's crime as one of a very mitigated character, no harm having been done to the second woman, and released him on his own recognizances to come up for judgment if he should be called upon. I would not revisit upon him his past misdeeds. The other man I sent into penal servitude for five years.

CHAPTER x.x.xII.

ON THE MIDLAND CIRCUIT.

”That's Orkins hover there,” said a burly-looking sportsman as I arrived one day at Newmarket Heath--”'im a-torkin' to Corlett. See 'im? Nice bernevolent old cove to look at, ain't 'e? Yus. That didn't stop 'is guvin' me _five of his wery best_, simply becorze by accident I mistook someb'dy else's 'ouse and plate-chest for my own. Sorter mistake which might 'appen a'most to henybody. There 'e is; see 'im?

That's Orkins!”

I need not say I was frequently spoken of in this complimentary manner by persons who had been introduced to me at the Bar. I was once leading a little fox terrier with a string, because on several occasions he had given me the slip and caused me to be a little late in court. I led him, therefore, in the leash until he knew his duty.

On this day, however, as the crowd was waiting for me on the little platform of a country station, my fox terrier jumped out in front of me while I was holding him by the string.

”Good ----!” cried a voice from a gentleman to whom I had previously given a situation under Government, livery and all found; ”why, blow me if the old bloke ain't blind! Lookee there, 'is dawg's a-leadin'

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