Barrister (to the Clerk of the Court).Make an order in favor of the plaintiff.Plaintiff’s Attorney.Your honor will give us speedy recovery?Barrister.Will a month do, Mr. Docket?Plaintiff’s Attorney.The defendant is not here to assign any reason for delay, your honor.Barrister.Very well; then let him pay in a fortnight.
Barrister (to the Clerk of the Court).Make an order in favor of the plaintiff.
Plaintiff’s Attorney.Your honor will give us speedy recovery?
Barrister.Will a month do, Mr. Docket?
Plaintiff’s Attorney.The defendant is not here to assign any reason for delay, your honor.
Barrister.Very well; then let him pay in a fortnight.
I was much struck, in some of the cases, by a friendly sort of confidence which characterized some of the proceedings. Here again the effect in a great measure was attributable to the Barrister. He seemed to act—as indeed he is—rather as an authorized arbitrator than as a judge. He advised rather than ordered; “I really think, he said, to one defendant, “I really think, sir, you have made yourself liable.” “Do you, sir?” said the man, pulling out his purse, without more ado, “then, sir, I am sure I will pay.”
It struck me, too, as remarkable, that though some of the cases were hotly contested, none of the defeated parties complained of the decision. In several instances, the parties even appeared to acquiesce in the propriety of the verdict.
A Scotch shoeing-smith summoned a man who, from his appearance, I judged to be a hard, keen-dealing Yorkshire horse-jobber; he claimed a sum of money for putting shoes upon six-and-thirty horses. His claim was just, but there was an error in his particulars of demand which vitiated it. The Barrister took some trouble to point out that in consequence of this error even if he gave a decision in his favor, he should be doing him an injury. The case was a hard one, and I could not help regretting that the poor plaintiff should be non-suited. Didhecomplain? Neither by word or action. Folding up his papers, he said, sorrowfully, “Well, sir, I assure you I would not have come here, if it had not been a just claim.” The Barrister evidently believed him, for he advised a compromise, and adjourned the case that the parties might try to come to terms. But the defendant would not arrange, and the plaintiff was driven to elect a non-suit.
The mode of dealing with documentary evidence afforded me considerable satisfaction. Private letters—such as the tender effusions of faithless love—are not, as in the higher Courts, thrust one after the other, into the dirty face of a grubby-looking witness who was called to prove the handwriting, sent the round of the twelve jurymen in the box, and finally passed to the reporters that they might copy certain flowery sentences and a few stanzas from “Childe Harold,” which the short-hand writers “could not catch,” but are handed up, seriatim, to the Judge who looks through them carefully and then passes them over without observation for the re-perusal of the defendant. Not a word transpires except such extracts as require comment.
There was a claim against a gentleman for a butcher’s bill.He had the best of all defences, for he had paid ready money for every item as it was delivered. The plaintiff was the younger partner of a butchering firm which had broken up, leaving him in possession of the books and his partner in possession of the credit. The proprietor of the book-debts proved the order and delivery of certain joints prior to a certain date, and swore they had not been paid for. To show his title to recover the value of them, he somewhat unnecessarily thrust before the Barrister, the deed which constituted him a partner. The Judge instantly compared the deed with the bill. “Why,” he said, turning to the butcher, “all the items you have sworn to were purchased anterior to the date of your entering into partnership. If any one is entitled to recover, it is your partner, whom the defendant alleges he has paid.” In one, as they are called, of the “Superior Courts,” I very much doubt whether either Judge or Jury would have discovered for themselves this important discrepancy.
The documentary evidence was not confined to deeds and writings, stamped or unstamped. Even during the short time I was present, I saw some curious records produced before the Barrister—records as primitive in their way as those the Chancellor of the Exchequer used to keep in the Tally-Office, before the comparatively recent introduction of book-keeping into the department of our national accountant.
Among other things received in evidence, were a milkwoman’s score and a baker’s notches. Mr. Ficker appeared inclined to think that no weight ought to be attached to such evidence as this. But, when I recollect that there have occasionally been such things as tombstones produced in evidence before Lord Volatile in his own particular Court, the House of Lords, (“the highest jurisdiction,” as they call it, “in the realm,”) I see no good reason why Mrs. Chalk, the milkwoman, should not be permitted to produce her tallies in a County Court. For every practical purpose the score upon the one seems just as good a document as the epitaph upon the other.
I was vastly pleased by the great consideration which appeared to be displayed towards misfortune and adversity. These Courts are emphatically Courts for therecoveryof debts; and inasmuch as they afford great facilities to plaintiffs, it is therefore the more incumbent that defendants should be protected against hardship and oppression. A man was summoned to show why he had not paid a debt pursuant to a previous order of the Court. The plaintiff attended to press the case against him, and displayed some rancor.
“Why have you not paid, sir?” demanded the Judge sternly.
“Your honor,” said the man, “I have been out of employment six months, and within the last fortnight everything I have in the world has been seized in execution.”
In the Superior Courts this would have been no excuse. The man would probably have gone to prison, leaving his wife and family upon the parish. But here that novel sentiment in law proceedings—sympathy—peeped forth.
“I believe this man would pay,” said the Barrister, “if possible. But he has lost everything in the world. At present I shall make no order.”
It did not appear to me that the plaintiffs generally in this Court were anxious to press very hardly upon defendants. Indeed it would be bad policy to do so. Give a man time, and he can often meet demands that it would be impossible for him to defray if pressed at once.
“Immediate execution” in this Court, seemed to be payment within a fortnight. An order to pay in weekly installments is a common mode of arranging a case, and as it is usually made byagreement between the parties, both of them are satisfied. In fact, the rule of the Court seemed not dissimilar from that of trades-people who want to do a quick business, and who proceed upon the principle that “No reasonable offer is refused.”
I had been in the Court sufficiently long to make these and other observations, when Mr. Ficker introduced me to the clerk. On leaving the Court by a side-door, we repaired to Mr. Nottit’s room, where we found that gentleman (an old attorney) prepared to do the honors of “a glass of sherry and a biscuit.” Of course the conversation turned upon “the County Court.”
“Doing a pretty good business here?” said Mr. Ficker.
“Business—we’re at it all day,” replied Mr. Nottit. “I’ll show you. This is an account of the business of the County Courts in England and Wales in the year 1848—the account for 1849 is not yet made up.”
“Take six months, I suppose, to make it,” said Mr. Ficker, rather ill-naturedly.
“Total ‘Number of Plaints or Causes entered,’ ” read the clerk, “427,611.”
“Total amount of money sought to be recovered by the plaintiffs,” continued Mr. Nottit, “£1,346,802.”
“Good gracious!” exclaimed Ficker, his face expressing envy and indignation; “what a benefit would have been conferred upon society, if all this property had been got into the legitimate Law Courts! What a benefit to the possessors of all this wealth! I have no doubt whatever that during the past year the suitors, who have recovered this million and a quarter, have spent the whole of it, squandered it upon what they called “necessaries of life.” Look at the difference if it had only been locked up for them—say in Chancery. It would have been preserved with the greatest possible safety; accounted for—every fraction of it—in the books of the Accountant-General; and we, sir, we—the respectable practitioners in the profession—should have gone down three or four times every year to the Master’s offices to see that it was all right, and to have had a little consultation as to the best means of holding it safely for our client, until his suit was properly and equitably disposed of.”
“But, perhaps, Ficker,” I suggested, “these poor clients make better use of their own money after all than the Courts of Law and Equity could make it for them.”
“Then the costs,” said Mr. Ficker, with an attorney’s ready eye to business, “let us hear about them.”
“The total amount of costs adjudged to be paid by defendants on the amount (£752,500) for which judgment was obtained, was £199,980,” was the answer—“being an addition of 26.5 per cent, on the amount ordered to be paid.”
“Well,” said Mr. Ficker, “that’s not so very bad. Twenty five per cent,” turning to me, “is a small amount undoubtedly for the costs of an action duly brought to trial; but, as the greater part of these costs are costs of Court, twenty-five per cent, cannot be considered inadequate.”
“It seems to me a great deal too much,” said I. “Justice ought to be much cheaper.”
“All the fees to counsel and attorneys are included in the amount,” remarked the clerk, “and so are allowances to witnesses. The fees on causes amounted to very nearly £300,000. Of this sum, the Officers’ fees were, in 1848, £234,274, and the General Fund fees £51,784.”
“Not so bad!” said Mr. Ficker, smiling.
“The Judges’ fees amounted to nearly £90,000. This would have given them all £1500 each; but the Treasury has fixedtheir salaries at a uniform sum of £1000, so that the sixty Judges only draw £60,000 of the £90,000.”
“Where does the remainder go?” I inquired.
The County Court Clerk shook his head.
“But you don’t mean,” said I, “that the suiters are made to pay £90,000 a year for what only costs £60,000?”
“I am afraid it is so,” said Mr. Nottit.
“Dear me!” said Mr. Ficker; “I never heard of such a thing in all my professional experience. I am sure the Lord Chancellor would never sanction that in his Court. You ought to apply to the Courts above, Mr. Nottit—you ought, indeed.”
“And yet,” said I, “I think I have heard something about a Suitors’ Fee Fund in those Courts above—eh, Ficker?”
“Ah—hem—yes,” said Mr. Ficker. “Certainly—but the cases are not at all analogous. By the way, how are the other fees distributed?”
“The Clerks,” said Mr. Nottit, “received £87,283, nearly as much as the Judges. As there are 491 clerks, the average would be £180 a-year to each. But as the Clerks’ fees accumulate in each Court according to the business transacted, of course the division is very unequal. In one Court in Wales the Clerk only got £8 10s.in fees; in another Court, in Yorkshire, his receipts only amounted to £9 4s.3d.But some of my colleagues made a good thing of it. The Clerks’ fees in some of the principal Courts’ are very ‘Comfortable.’
Bristol, Sheffield, Bloomsbury, Birmingham, Shoreditch, Leeds. Marylebone, received £1000 a-year and upwards.”
“But,” continued our friend, “three-fourths of the Clerks get less than £100 a-year.”
“Now,” said Mr. Ficker, “tell us what you all do for this money?”
“Altogether,” said the clerk, “the Courts sat in 1848, 8,386 days, or an average for each Judge of 140 days. The greatest number of sittings was in Westminster, where the Judge sat 246 days. At Liverpool, there were sittings on 225 days. The number of trials, as I have before mentioned, was 259,118, or an average of about 4,320 to each Judge, and 528 to each Court. In some of the Courts, however, as many as 20,000 cases are tried in a year.”
“Why,” said Mr. Ficker, “they can’t give five minutes to each case! Is this ‘administration of justice?’ ”
“When,” said the clerk, “a case is undefended, a plaintiff appears, swears to his debt, and obtains an order for its payment, which takes scarcely two minutes.”
“How long does a defended case take?”
“On the average, I should say, a quarter of an hour; that is, provided counsel are not employed.”
“Jury cases occupy much longer?”
“Undoubtedly.”
“Are the jury cases frequent?” I inquired—some feeling of respect for ‘our time-honored institution’ coming across me as I spoke.
“Nothing,” said our friend, “is more remarkable in the history of the County Courts than the very limited resort which suitors have to juries. It is within the power of either party to cause the jury to be summoned in any case where the plaint is upwards of £5. The total number of cases tried in 1848 was 259,118. Of these, upwards of 50,000 were cases in whichjuries might have been summoned. But there were only 884 jury cases in all the Courts, or one jury for about every 270 trials! The party requiring the jury obtained a verdict in 446 out of the 884 cases, or exactly one-half.
“At any rate, then, there is no imputation on the juries,” said Mr. Ficker.
“The power of resorting to them is very valuable,” said our friend. “There is a strong disposition among the public to rely upon the decision of the Barrister, and that reliance is not without good foundation, for certainly justice in these Courts have been well administered. But there may be occasions when it would be very desirable that a jury should be interposed between a party to a cause and the presiding Judge; and certainly if the jurisdiction of these Courts is extended, it will be most desirable that suitors should be able to satisfy themselves that every opportunity is open to them of obtaining justice.”
“For my own part,” said I, “I would as soon have the decision of one honest man as of twelve honest men, and perhaps I would prefer it. If the Judge is a liberal-minded and enlightened man, I would rather take his judgment than submit my case to a dozen selected by chance, and among whom there would most probably be at least a couple of dolts. By the way, why should not the same option be given to suitors in Westminster Hall as is given in the County Courts?”
“What!” exclaimed Mr. Ficker, “abolish trial by Jury! the palladium of British liberty! Have younorespect for antiquity?”
“We must adapt ourselves to the altered state of society, Ficker. Observe the great proportion of casestriedin these Courts—more than sixty per cent. of the entire number ofplaints entered. This is vastly greater than the number in the Superior Courts, where there is said to be scarcely one cause tried for fifty writs issued. Why is this? Simply because the cost deters parties from continuing the actions. They settle rather than go to a jury.”
“And a great advantage, too,” said Mr. Ficker.
“Under the new bill,” said our friend, the Clerk, “Fickers clients will all be coming to us. They will be able to recover £50 in these Courts, without paying Ficker a single 6s.8d.unless they have a peculiar taste for law expenses.”
“And a hideous amount of rascality and perjury will be the consequence,” said Mr. Ficker. “You will make these Courts mere Plaintiffs’ Courts, sir—Courts to which every rogue will be dragging the first man who he thinks can pay him £50, if he only swears hard enough that it is due to him. I foresee the greatest danger from this extension of litigation, under the pretence of providing cheap law.
“Fifty pounds,” said I, “is, to a large proportion of the people, a sum of money of very considerable importance. I must say, I think it would be quite right that inferior courts should not have the right of dealing with so much of a man’s property, without giving him a power of appeal, at least under restrictions. But, at the same time, looking at the satisfactory way in which this great experiment has worked—seeing how many righteous claims have been established and just defences maintained, which would have been denied under any other system—I cannot but hope to see the day when, attended by proper safeguards for the due administration of justice, these Courts will be open to even a more numerous class of suitors than at present. It is proposed that small Charitable Trust cases shall be submitted to the Judges of these Courts; whynot also refer to them cases in which local magistrates cannot now act without suspicion of partisanship?—cases, for example, under the Game Laws, or the Turnpike Laws, and, more than all, offences against the Truck Act, which essentially embody matters of account. Why not,” said I, preparing for a burst of eloquence—“why not——”
“Overthrow at once the Seat of Justice, the Letter of the Law, and our glorious constitution in Church and State!”
It was Mr. Ficker who spoke, and he had rushed frantically from the room ere I could reply.
Having no one to argue the point further with, I made my bow to Mr Nottit and retired also.
THEmost litigious fellow I ever knew, was a Welshman, named Bones. He had got possession, by some means, of a bit of waste ground behind a public-house in Hogwash Street. Adjoining this land was a yard belonging to the parish of St. Jeremiah, which the Parish Trustees were fencing in with a wall. Bones alleged that one corner of their wall was advanced about ten inches on his ground, and as they declined to remove it back, he kicked down the brick-work before the mortar was dry. The Trustees having satisfied themselves that they were not only within their boundary, but that they had left Bones some feet of the parish land to boot, built up the wall again. Bones kicked it down again.
The Trustees put it up a third time, under the protection of a policeman. The inexorable Bones, in spite of the awful presence of this functionary, not only kicked down the wall again, but kicked the brick-layers into the bargain. This was too much, and Bones was marched off to Guildhall for assaulting the brick-layers. The magistrate rather pooh-poohed the complaint, but bound over Bones to keep the peace. Thecausa belli, the wall, was re-edified a fourth time; but when the Trustees revisited the place next morning, it was again in ruins! While they were in consultation upon this last insult, they were politely waited on by an attorney’s clerk, who served them all with “writs” in an action of trespass, at the suit of Bones, for encroaching on his land.
Thus war was declared about a piece of dirty land literallynot so big as a door-step, and the whole fee-simple of which would not sell for a shilling. The Trustees, however, thought they ought not to give up the rights of the parish to the obstinacy of a perverse fellow, like Bones, and resolved to indict Bones for assaulting the workmen. Accordingly, the action and the indictment went on together.
The action was tried first, and as the evidence clearly showed the Trustees had kept within their own boundary, they got the verdict. Bones moved for a new trial; that failed. The Trustees now thought they would let the matter rest, as it had cost the parish about one hundred and fifty pounds, and they supposed Bones had had enough of it. But they had mistaken their man. He brought a writ of error in the action, which carried the cause into the Exchequer Court, and tied it up nearly two years, and in the meantime he forced themnolens volensto try the indictment. When the trial came on, the judge said, that as the whole question had been decided in the action, there was no occasion for any further proceedings, and therefore the Defendant had better be acquitted, and so make an end of it.
Accordingly, Bones was acquitted; and the very next thing Bones did was to sue the Trustees in a new action, for maliciously instituting the indictment against him without reasonable cause! The new action went on to trial; and it being proved that one of the Trustees had been overheard to say that they would punish him; this was taken as evidence of malice, and Bones got a verdict for forty shillings damages besides all the costs. Elated with this victory, Bones pushed on his old action in the Exchequer Chamber to a hearing, but the Court affirmed the judgment against him, without hearing the Trustees’ counsel.
The Trustees were now sick of the very name of Bones, which had become a sort of bugbear, so that if a Trustee met a friend in the street he would be greeted with an inquiry after the health of his friend, Mr. Bones. They would have gladly let the whole matter drop into oblivion, but Jupiter and Bones had determined otherwise; for the indomitable Briton brought a Writ of Error in the House of Lords, on the judgment of the Exchequer Chamber. The unhappy Trustees had caught a Tartar, and follow him into the Lords they must. Accordingly, after another year or two’s delay, the case came on in the Lords. Their Lordships pronounced it the most trumpery Writ of Error they had ever seen, and again affirmed the judgment, with costs, against Bones. The Trustees now taxed their costs, and found that they had spent not less than five hundred pounds in defending their claims to a bit of ground that was not of the value of an old shoe. But, then, Bones was condemned to pay the costs. True—so they issued execution against Bones; caught him, after some trouble, and locked him up in jail. The next week, Bones petitioned the Insolvent Court, got out of prison, and, on examination of his schedule, his effects appeared to be £0 0s.0d.! Bones had, in fact, been fighting the Trustees on credit for the last three years; for his own attorney was put down as a creditor to a large amount, which was the only satisfaction the Trustees obtained from perusing his schedule.
They were now obliged to have recourse to the Parish funds to pay their own law expenses, and were consoling themselves with the reflection that these did not come out oftheir own pockets—when they received the usual notification that a Bill in Chancery had been filed against them, at Mr. Bones’s suit, to overhaul their accounts with the parish, andprevent the misapplication of the Parish moneyto the payment of their law costs! This was the climax. And being myself a disciple of Coke, I have heard nothing further of it; being unwilling, as well perhaps as unqualified, to follow the case into the labyrinthic vaults of the Court of Chancery. The catastrophe, if this were a tale, could hardly be mended—so the true story may end here.
IAMnot a young man, and have passed much of my life in our Criminal Courts. I am, and have been, in active practice at the Bar, and I believe myself capable of offering some hints toward an improved administration of justice.
I do not allude to any reform in the law, though I believe much to be needed. I mean to confine myself to amendments which it is in the power of the people to make for themselves, and indeed, which no legislature, however enlightened, can make for them.
In no country can the laws be well administered, where the popular mind stands at a low point in the scale of intelligence, or where the moral tone is lax. The latter defect is of course the most important, but it is so intimately connected with the former, that they commonly prevail together, and the causes which remove the one, have, almost without exception, a salutary effect upon the other.
That the general diffusion of morals and intelligence is essential to the healthy working of jurisprudence in all countries, will be admitted, when it is recollected that no tribunal, however skillful, can arrive at the truth by any other way than by the testimony of witnesses, and that consequently on their trustworthiness the enjoyment of property, character, and life, must of necessity depend.
Again, wherever trial by jury is established, a further demand arises for morals and intelligence among the people. It follows then, as a consequence almost too obvious to justify the remark,that whatever in any country enlarges and strengthens these great attributes of civilization, raises its capacity for performing that noblest duty of social man, the administration of justice.
Let me first speak of witnesses and their testimony. It is sometimes supposed that the desire to be veracious is the only quality essential to form a trustworthy witness—and an essential quality it is beyond all doubt—but it is possessed by many who are nevertheless very unsafe guides to truth. In the first place, this general desire for truth in a mind not carefully regulated, is apt to give way, oftentimes unconsciously, to impressions which overpower habitual veracity. It may be laid down as a general rule that witnesses are partisans, and that, often without knowing it, their evidence takes a color from the feeling of partisanship, which gives it all the injurious effects of willful falsehood—nay, it is frequently more pernicious. The witness who knowingly perverts the truth, often betrays his mendicity by his voice, his countenance, or his choice of words; while the unconscious perverter gives his testimony with all the force of sincerity. Let the witness who intends to give evidence worthy of confidence, be on his guard against the temptations to become a partisan. Witnesses ought to avoid consorting together on the eve of a trial; still more, discussing the matters in dispute, and comparing their intended statements. Musicians have observed that if two instruments, not in exact accordance, are played together, they have a tendency to run into harmony. Witnesses are precisely such instruments, and act on each other in like manner.
So much with regard to the moral tone of the witness; but the difficulties which I have pointed out may be surmounted, and yet leave his evidence a very distorted narrative of the real facts. Consideration must be given to the intellectual requirements of a witness. It was the just remark of Dr. Johnson thatcomplaints of the memory were often very unjust toward that faculty which was reproached with not retaining what had never been confided to its care. The defect is not a failure of memory, but a lack of observation; the ideas have not run out of the mind—they never went into it.
This is a deficiency, which cannot be dealt with in any special relation to the subject in hand; it can only be corrected by cultivating a general habit of observation, which, considering that the dearest interests of others may be imperiled by errors arising out of the neglect to observe accurately, must be looked upon in the light of a duty.
A still greater defect is the absence of the power of distinguishing fact and inference. Nothing but a long experience in Courts of Justice, can give a notion of the extent to which testimony is adulterated by this defect. It is often exemplified in the depositions of witnesses, or rather in the comparison between the depositions which, as your readers know, are taken in writing before the committing magistrate, and the evidence given on the trial.
Circumstances on which the witness had been silent when examined before the magistrate shortly after the event, make their appearance in his evidence on the day of trial; so that his memory purports to augment inaccuracy in proportion to their time which has elapsed since the transaction of which he speaks!
I have observed this effect produced in a marvelous degree in cases of new trial, which in civil suits are often awarded, and which frequently take place years after the event to which they relate. The comparison of the evidence of the same witness as it stands upon the short-hand writer’s notes of the two trials, would lead an unpracticed reader to the conclusion that nothing but perjury could account for the diversities; and this impressionwould be confirmed, if he should find, as in all probability he would, that the points on which the latter memory was better supplied than the earlier, were just those on which the greatest doubt had prevailed on the former occasion, and which were made in favor of the party on whose side the witness had been called. But the critic would be mistaken. The witness was not dishonest, but had failed to keep watch over the operations of his own mind. He had perhaps often adverted to the subject, and often discoursed upon it, until at length he confounded the facts which had occurred, with the inference which he had drawn from such facts, in establishment of the existence of others, which had in reality no place except in his own cogitation, but which after a time took rank in his memory with its original impressions.
The best safeguard a witness could employ to preserve the unalloyed memory of transactions, is to commit his narrative to writing, as soon after the event as he shall have learned that his evidence respecting them is likely to be required; and yet I can hardly recommend such a course, because so little is the world, and even that portion of the world which passes its life in Courts of Justice, acquainted with what may be called the Philosophy of Evidence, that a conscientious endeavor of this kind to preserve his testimony in its purity, might draw upon him the imputation of having fabricated his narrative; and this is the more probable, because false witnesses have not unfrequently taken similar means for abiding by their fictions.
It is worthy of note how much these disturbing causes, both moral and intellectual, fasten upon these portions of evidence which are most liable to distortion. Words, as contra-distinguished from facts, exemplify the truth of this position. Every witness ought to feel great distrust of himself in giving evidenceof a conversation. Language, if it runs to any length, is very liable to be misunderstood, at least in passages.
But supposing it to be well understood at the moment, the exact wording of it can rarely be recalled, unless the witness’s memory were tantamount in minuteness and accuracy to the record of a short-hand writer. He is consequently permitted to give an abstract, or, as it is usually called, the substance of what occurred. But here a new difficulty arises; to abstract correctly is an intellectual effort of no mean order, and is rarely accomplished with a decent approach to perfection. Let the juryman bear this in mind. He will be often tempted to rely on alleged confessions of prisoners sworn to by witnesses who certainly desire to speak the truth. These confessions often go so straight to the point, that they offer to the juryman a species of relief from that state of doubt, which, to minds unpracticed in weighing probabilities, is irksome, almost beyond description. Speaking from the experience of thirty years, I should pronounce the evidence of words to be so dangerous in its nature as to demand the utmost vigilance, in all cases, before it is allowed to influence the verdict to any important extent.
While I am on the subject of evidence, infirm in its nature, I must not pass over that of identity of person. The number of persons who resemble each other is not inconsiderable in itself; but the number is very large of persons, who, though very distinguishable when standing side by side, are yet sufficiently alike to deceive those who are without the means of immediate comparison.
Early in life an occurrence impressed me with the danger of relying on the most confidential belief of identity. I was at Vauxhall Gardens where I thought I saw, at a short distance, an old country gentleman whom I highly respected, and whosefavor I should have been sorry to lose. I bowed to him, but obtained no recognition. In those days the company amused themselves by walking round in a circle, some in one direction, some in the opposite, by which every one saw and was seen—I say, in those days, because I have not been at Vauxhall for a quarter of a century. In performing these rounds I often met the gentleman, and tried to attract his attention, until I became convinced that either his eye-sight was so weakened that he did not know me, or that he chose to disown my acquaintance. Some time afterward, going into the county in which he resided, I received, as usual, an invitation to dinner; this led to an explanation, when my friend assured me he had not been in London for twenty years. I afterwards met the person whom I had mistaken for my old friend, and wondered how I could have fallen into the error. I can only explain it by supposing that, if the mind feels satisfied of identity, which it often does at the first glance, it ceases to investigate that question, and occupies itself with other matter; as in my case, where my thoughts ran upon the motives my friend might have, for not recognizing me, instead of employing themselves on the question of whether or no the individual before my eyes was indeed the person I took him for.
If I had had to give evidence on this matter my mistake would have been the more dangerous, as I had full means of knowledge. The place was well lighted, the interviews were repeated, and my mind was undisturbed. How often have I known evidence of identity acted upon by juries, where the witness was in a much less favorable position (for correct observation) than mine.
Sometimes, a mistaken verdict is avoided by independent evidence. Rarely, however, is this rock escaped, by cross-examination,even when conducted with adequate skill and experience. The belief of the witness is belief in a matter of opinion resulting from a combination of facts so slight and unimportant, separately considered, that they furnish no handle to the cross-examiner. A striking case of this kind occurs to my recollection, with which I will conclude.
A prisoner was indicted for shooting at the prosecutor, with intent to kill him. The prosecutor swore that the prisoner had demanded his money, and that upon refusal, or delay, to comply with his requisition, he fired a pistol, by the flash of which his countenance became perfectly visible; the shot did not take effect, and the prisoner made off. Here the recognition was momentary, and the prosecutor could hardly have been in an undisturbed state of mind, yet the confidence of his belief made a strong impression on all who heard the evidence, and probably would have sealed the fate of the prisoner without the aid of an additional fact of very slight importance, which was, however, put in evidence by way of corroboration, that the prisoner, who was a stranger to the neighborhood, had been seen passing near the spot in which the attack was made about noon of the same day. The judge belonged to a class, now, thank God! obsolete, who always acted on the reverse of the constitutional maxim, and considered every man guilty, until he was proved to be innocent.
If the case had closed without witnesses on behalf of the prisoner, his life would have been gone; fortunately, he possessed the means of employing an able and zealous attorney, and, more fortunately, it so happened that several hours before the attack the prisoner had mounted upon a coach, and was many miles from the scene of the crime at the hour of its commission.
With great labor, and at considerable expense, all the passengers were sought out, and with the coachman and guard,were brought into court, and testified to the presence among them of the prisoner. Analibiis always a suspected defence, and by no man was ever more suspiciously watched than by this judge. But then witness after witness appeared, their names corresponding exactly with the way-bill produced by the clerk of a respectable coach-office, the most determined scepticism gave way, and the prisoner was acquitted by acclamation. He was not, however, saved by his innocence, but by his good fortune. How frequently does it happen to us all to be many hours at a time without having witnesses to prove our absence from one spot by our presence at another! And how many of us are too prone to avail ourselves of such proof in the instances where it may exist!
A remarkable instance of mistake in identity, which put the life of a prisoner in extreme peril, I heard from the lips of his counsel. It occurred at the Special Commission held at Nottingham after the riots consequent on the rejection of the Reform Bill by the House of Lords, in 1831.
The prisoner was a young man of prepossessing appearance, belonging to what may be called the lower section of the middle rank of life, being a frame-work knitter, in the employment of his father, a master manufacturer in a small way. He was tried on an indictment charging him with the offence of arson. A mob, of which he was alleged to be one, had burnt Colwick Hall, near Nottingham, the residence of Mr. Musters, the husband of Mary Chaworth, whose name is so closely linked with that of Byron. This ill-fated lady was approaching the last stage of consumption, when, on a cold and wet evening in autumn, she was driven from her mansion, and compelled to take refuge among the trees of her shrubbery—an outrage which probably hastened her death.
The crime with its attendant circumstances, created, as was natural, a strong sympathy against the criminals. Unhappily, this feeling, so praiseworthy in itself, is liable to produce a strong tendency in the public mind to believe in the guilt of the party accused. People sometimes seem to hunger and thirst after a criminal, and are disappointed when it turns out that they are mistaken in their man, and are, consequently, slow to believe that such an error has been made. Doubtless, the impression is received into the mind unconsciously; but although on that ground pardonable, it is all the more dangerous. In this case, the prisoner was identified by several witnesses as having taken an active part in setting fire to the house.
He had been under their notice for some considerable space of time. They gave their evidence against him without hesitation, and probably the slightest doubt of its accuracy. His defence was analibi. The frame at which he worked had its place near the entrance to the warehouse, the room frequented by the customers and all who had business to transact at the manufactory. He acted, therefore, as doorkeeper, and in that capacity had been seen and spoken with by many persons, who in their evidence more than covered the whole time which elapsed between the arrival of the mob at Colwick Hall and its departure. Thealibiwas believed, and the prisoner, after a trial which lasted a whole day, was acquitted.
The next morning he was to be tried again on another indictment, charging him with having set fire to the Castle of Nottingham. The counsel for the prosecution, influenced by motives of humanity, and fully impressed with the prisoner’s guilt on both charges, urged the counsel for the prisoner to advise his client to plead guilty, undertaking that his life should be spared, but observing at the same time that his social position, whichwas superior to that of the other prisoners, would make it impossible to extend the mercy of the Crown to him unless he manifested a due sense of his offences by foregoing the chance of escape. “You know,” said they, “how rarely analibiobtains credit with a jury. You can have no other defence to-day than that of yesterday. The Castle is much nearer than Colwick Hall to the manufactory, and a very short absence from his work on the part of the prisoner might reconcile the evidence of all the witnesses, both for him and against him; moreover, who ever heard of a successfulalibitwice running?”
The counsel for the prisoner had his client taken into a room adjoining the court, and having explained to him the extreme danger in which he stood, informed him of the offer made by the prosecutors. The young man evinced some emotion, and asked his counsel to advise what step he should take. “The advice,” he was answered, “must depend upon a fact known to himself alone—his guilt or innocence. If guilty, his chance of escape was so small that it would be the last degree of rashness to refuse the offer; if, on the other hand, he were innocent, his counsel, putting himself in the place of the prisoner, would say, that no peril, however imminent, would induce him to plead guilty.” The prisoner was further told, that in the course of a trial circumstances often arose at the moment, unforeseen by all parties, which disclosed the truth; that this consideration was in his favor if he were innocent but showed at the same time that there were now chances of danger, if he were guilty, the extent of which could not be calculated, nor even surmised. The youth, with perfect self-possession, and unshaken firmness, replied, “I am innocent, and will take my trial.” He did so. Many painful hours wore away, every moment diminishing the prisoner’s chance of acquittal, until it seemed utterly extinguished,when some trifling matter which had escaped the memory of the narrator, occurred, leading him to think it was possible that another person, who must much resemble the prisoner, had been mistaken for him. Inquiry was instantly made of the family, whether they knew of any such resemblance; when it appeared that the prisoner had a cousin so much like himself that the two were frequently accosted in the street, the one for the other. The cousin had absconded.
It is hardly credible, though doubtless true, that a family of respectable station could have been unaware of the importance of such a fact, or that the prisoner, who appeared not deficient in intelligence, and who was assuredly in full possession of his faculties, could be insensible to its value. That either he or they could have placed such reliance on his defence as to induce them to screen his guilty relative, is to the last degree improbable, especially as the cousin had escaped. Witnesses, however, were quickly produced, who verified the resemblance between the two, and the counsel for the prosecution abandoned their case, expressing their belief that their witnesses had given their evidence under a mistake of identity.
The narrator added that analibistood a less chance of favorable reception at Nottingham than elsewhere, although in every place received with great jealousy. In one of the trials arising out of the outrages committed by the Luddites, who broke into manufactories and destroyed all lace frames of a construction which they thought oppressive to working-men, analibi, he said had been concocted, which was successful in saving the life of a man notoriously guilty, and which had therefore added to the disrepute of this species of defence. The hypothesis was, that the prisoner, at the time when the crime was committed, at Loughborough, sixteen miles from Nottingham, was engaged at a supperparty at the latter place; and the prisoner having the sympathy of a large class in his favor, whose battle he had been fighting, no difficulty was experienced by his friends in finding witnesses willing to support this hypothesis on their oaths; but it would have been a rash measure to have called them into the box unprepared. And when it is considered how readily a preconcerted story might have been destroyed by cross-examination, the task of preparing the witnesses so as to elude this test, was one requiring no ordinary care and skill. The danger would arise thus:—Every witness would be kept out of court, except the one in the box. He would be asked where he sat at the supper? where the prisoner sat, and each of the other guests? what were the dishes, what was the course of conversation, and so forth—the questions being capable of multiplicationad infinitum; so that however well tutored, the witnesses would inevitably contradict each other upon some matters, on which the tutor had not foreseen that the witness would be cross-examined, or to which he had forgotten the answer prescribed. The difficulty was, however, surmounted. After the prisoner’s apprehension, the selected witnesses were invited to a mackerel supper, which took place at an hour corresponding to that at which the crime was committed; and so careful was the ingenious agent who devised this conspiracy against the truth that, guided by a sure instinct, he fixed upon the same day of the week as that on which the crime had been committed, though without knowing how fortunate it would be for the prisoner that he took this precaution. When, on cross-examination, it was found that the witnesses agreed as to the order in which the guests were seated, the contents of the dishes, the conversation which had taken place, and so forth—the counsel for the Crown suspected the plot; but not imagining that it had been so perfectly elaborated,they inquired of their attorneys as to whether there was any occurrence peculiar to the day of the week in question, and were told that, upon the evening of such day, a public bell was always rung, which must have been heard at the supper, if it had taken place at the time pretended. The witnesses were separately called back and questioned separately as to the bell. They had all heard it; and thus not only were the cross-examiners utterly baffled, but the cross-examination gave ten-fold support to the examination in chief, that is, to the evidence as given by the witnesses in answer to the questions put by the prisoner’s counsel in his behalf. The triumph of falsehood was complete. The prisoner was acquitted.
When, however, the attention of prosecutors is called to the possibility of such fabrications they become less easy of management. The friends of a prisoner are often known to the police, and may be watched—the actors may be surprised at the rehearsal; a false ally may be inserted among them; in short, there are many chances of the plot failing. This, however, is an age of improvement, and the thirty years which have elapsed since the days of Luddism have not been a barren period in any art or science. The mystery of cookery in dishes, accounts, andalibis, has profited by this general advancement.
The latest device which my acquaintance with courts has brought to my knowledge is analibiof a very refined and subtle nature. The hypothesis is, that the prisoner was walking from point A to point Z, along a distant road, at the hour when the crime was committed. The witnesses are supposed each to see him, and some to converse with him, at points which may be indicated by many or all the letters of the alphabet. Each witness must be alone when he sees him, so that no two may speak to what occurred at the same spot or moment of time; but, withthis reservation, each may safely indulge his imagination with any account of the interview which he has wit to make consistent with itself, and firmness to abide by, under the storm of a cross-examination. “The force offalsehoodcan no farther go.” No rehearsal is necessary. Neither of the witnesses needs know of the existence of the others. The agent gives to each witness the name of the spot at which he is to place the prisoner. The witness makes himself acquainted with that spot, so as to stand a cross-examination as to the surrounding objects, and his education is complete. But as panaceas have only a fabulous existence, so this exquisitealibiis not applicable to all cases; the witness must have a reason for being on the spot, plausible enough to foil the skill of the cross-examiner; and, as false witnesses cannot be found at every turn, the difficulty of making it accord with the probability that the witness was where he pretends to have been on the day and at the hour in question is often insuperable, to say nothing of the possibility and probability of its being clearly established, on the part of the prosecution, that the prisoner could not have been there. I should add, that, except in towns of the first magnitude, it must be difficult to find mendacious witnesses who have in other respects the proper qualifications to prove a concoctedalibi, save always where the prisoner is the champion of a class; and then, according to my experience—sad as the avowal is—the difficulty is greatly reduced.
These incidents illustrate the soundness of the well-known proposition, that mixture of truth with falsehood, augments to the highest degree the noxious power of the venomous ingredient. That man was no mean proficient in the art of deceiving, who first discovered the importance of the liar being parsimonious in mendacity. The mind has a stomach as well as an eye,and if the bolus be neat falsehood, it will be rejected like an over-dose of arsenic which does not kill.
Let the juryman ponder these things, and beware how he lets his mind lapse into a conclusion either for or against the prisoner. To perform the duties of his office, so that the days which he spends in the jury-box will bear retrospection, his eye, his ears, and his intellect, must be ever on the watch. A witness in the box, and the same man in common life, are different creatures. Coming to give evidence, “he doth suffer a law change.” Sometimes he becomes more truthful, as he ought to do, if any change is necessary; but unhappily this is not always so, and least of all in the case of those whose testimony is often required.
I remember a person, whom I frequently heard to give evidence quite out of harmony with the facts; but I shall state neither his name nor his profession. A gentleman who knew perfectly well the unpalatable designation which his evidence deserved, told me of his death. I ventured to think it was a loss which might be borne, and touched upon his infirmity, to which my friend replied in perfect sincerity of heart, “Well! after all, I do not think he ever told a falsehood in his life—out of the witness’ box!”
VIOTTI’Sdivision of violin-playing into two great classes—good playing and bad playing—is applicable to Bank-note making. We shall now cover a few pages with a faint outline of the various arts, stratagems, and contrivances employed in concocting bad Bank-notes. The picture cannot be drawn with very distinct or strong markings. The tableaux from which it is copied, are so intertwisted and complicated with clever, slippery, ingenious scoundrelism, that a finished chart of it would be worse than morally displeasing—it would be tedious.
All arts require time and experience for their development. When anything great is to be done, first attempts are nearly always failures. The first Bank-note forgery was no exception to this rule, and its story has a spice of romance in it. The affair has never been circumstantially told; but some research enables us to detail it:—
In the month of August, 1757, a gentleman living in the neighborhood of Lincoln’s Inn Fields, named Bliss, advertised for a clerk. There were, as was usual at that time, many applicants; but the successful one was a young man of twenty-six, named Richard William Vaughan. His manners were so winning and his demeanor so much that of a gentleman, (he belonged indeed to a good county family in Staffordshire, and had been a student at Pembroke Hall, Oxford,) that Mr. Bliss at once engaged him. Nor had he occasion, during the timethe new clerk served him, to repent the step. Vaughan was so diligent, intelligent, and steady, that not even when it transpired that he was, commercially speaking, “under a cloud,” did his master lessen confidence in him. Some inquiry into his antecedents showed that he had, while at College, been extravagant—that his friends had removed him thence—set him up in Stafford as a wholesale linen-draper, with a branch establishment in Aldersgate Street, London—that he had failed, and that there was some difficulty about his certificate. But so well did he excuse his early failings and account for his misfortunes, that his employer did not check the regard he felt growing towards him. Their intercourse was not merely that of master and servant. Vaughan was a frequent guest at Bliss’s table; by-and-by a daily visitor to his wife, and—to his ward.
Miss Bliss was a young lady of some attractions, not the smallest of which was a hansome fortune. Young Vaughan made the most of his opportunities. He was well-looking, well-informed, dressed well, and evidently made love well, for he won the young lady’s heart. The guardian was not flinty-hearted, and acted like a sensible man of the world. “It was not,” he said, on a subsequent and painful occasion, “till I learned from the servants and observed by the girl’s behavior, that she greatly approved Richard Vaughan, that I consented; but on condition that he should make it appear that he could maintain her. I had no doubt of his character as a servant, and I knew his family were respectable. His brother is an eminent attorney.” Vaughan boasted that his mother (his father was dead) was willing to re-instate him in business with a thousand pounds—five hundred of which was to be settled upon Miss Bliss for her separate use.
So far all went on prosperously. Providing Richard Vaughan could attain a position satisfactory to the Blisses, the marriage was to take place on the Easter Monday following, which, the Calendar tells us, happened early in April, 1758. With this understanding, he left Mr. Bliss’s service, to push his fortune.
Months passed on, and Vaughan appears to have made no way in the world. He had not even obtained his bankrupt’s certificate. His visits to his affianced were frequent, and his protestations passionate; but he had effected nothing substantial towards a happy union. Miss Bliss’s guardian grew impatient; and, although there is no evidence to prove that the young lady’s affection for Vaughan was otherwise than deep and sincere, yet even she began to lose confidence in him. His excuses were evidently evasive, and not always true. The time fixed for the wedding was fast approaching; and Vaughan saw that something must be done to restore the young lady’s confidence.
About three weeks before the appointed Easter Tuesday, Vaughan went to his mistress in high spirits. All was right—his certificate was to be granted in a day or two—his family had come forward with the money, and he was to continue the Aldersgate business he had previously carried on as a branch of the Stafford trade. The capital he had waited so long for, was at length forthcoming. In fact, here were two hundred and forty pounds of the five hundred he was to settle on his beloved. Vaughan then produced twelve twenty-pound notes; Miss Bliss could scarcely believe her eyes. She examined them. The paper, she remarked, seemed thicker than usual. “Oh,” said Bliss, “all Bank bills are not alike.” The girl was naturally much pleased. She would hasten to apprise Mistress Bliss of the good news.
Not for the world! So far from letting any living soul know he had placed so much money in her hands, Vaughan exacted an oath of secresy from her, and sealed the notes up in a parcel with his own seal—making her swear that she would on no account open it till after their marriage.
Some days after, that is, “on the twenty-second of March,” (1758) we are describing the scene in Mr. Bliss’s own words—“I was sitting with my wife by the fireside. The prisoner and the girl were sitting in the same room—which was a small one—and although they whispered, I could distinguish that Vaughan was very urgent to have something returned which he had previously given to her. She refused, and Vaughan went away in an angry mood. I then studied the girl’s face, and saw that it expressed much dissatisfaction. Presently a tear broke out. I then spoke, and insisted on knowing the dispute. She refused to tell, and I told her that until she did, I would not see her. The next day I asked the same question of Vaughan—he hesitated. ‘Oh’ I said, ‘I dare say it is some ten or twelve pound matter—something to buy a wedding bauble with.’ He answered that it was much more than that—it was near three hundred pounds! ‘But why all this secrecy?’ I said; and he answered that it was not proper for people to know that he had so much money till his certificate was signed. I then asked him to what intent he had left the notes with the young lady? He said, as I had of late suspected him, he designed to give her a proof of his affection and truth. I said, ‘You have demanded them in such a way that it must be construed as an abatement of your affection towards her.’ ” Vaughan was again exceedingly urgent in asking back the packet; but Bliss remembering his many evasions, and supposing that this was a trick, declined advising his niece to restorethe parcel without proper consideration. The very next day it was discovered that the notes were counterfeits.
This occasioned stricter inquiries into Vaughan’s previous career. It turned out that he bore the character in his native place of a dissipated and not very scrupulous person. The intention of his mother to assist him was an entire fabrication, and he had given Miss Bliss the forged notes solely for the purpose of deceiving her on that matter. Meanwhile the forgeries became known to the authorities, and he was arrested. By what means, does not clearly appear. The “Annual Register” says, that one of the engravers gave information; but we find nothing in the newspapers of the time to support that statement; neither was it corroborated at Vaughan’s trial.
When Vaughan was arrested, he thrust a piece of paper into his mouth, and began to chew it violently. It was, however, rescued, and proved to be one of the forged notes; fourteen of them were found on his person, and when his lodgings were searched twenty more were discovered.
Vaughan was tried at the Old Bailey on the seventh of April, before Lord Mansfield. The manner of the forgery was detailed minutely at the trial:—On the first of March, (about a week before he gave the twelve notes to the young lady,) Vaughan called on Mr. John Corbould, an engraver, and gave an order for a promissory note to be engraved with these words:—