A secretary of State who has to look after the NA. police and the magistrates, to answer questions in the House of Commons, and occasionally to make a telling speech in defence of his colleagues, and, in addition to this, is expected to perform the duties of a practical court of appeal in criminal cases, must have something to do. To have to decide whether or no some poor wretch shall be hanged, when, in spite of the clearest evidence, humanitarian petitions by the dozen overwhelm him with claims for mercy, must be a terrible responsibility. ‘No, your Majesty, I think we won’t hang him. I think we’ll send him to penal servitude for life; — if your Majesty pleases.’ That is so easy, and would be so pleasant. Why should any one grumble at so right royal a decision? But there are the newspapers, always so prone to complain; — and the Secretary has to acknowledge that he must be strong enough to hang his culprits in spite of petitions, or else he must give up that office. But when the evidence is not clear, the case is twice more difficult. The jury have found their verdict, and the law intends that the verdict of a jury shall be conclusive. When a man has been declared to be guilty by twelve of his countrymen — he is guilty, let the facts have been what they may, and let the twelve have been ever so much in error. Majesty, however, can pardon guilt, and hence arises some awkward remedy for the mistakes of jurymen. But an unassisted Majesty cannot itself investigate all things — is not, in fact, in this country supposed to perform any duties of that sort — a Secretary of State is invested with the privilege of what is called mercy. It is justice rather that is wanted. If Bagwax were in the right about that envelope — and the reader will by this time think that he was right; and if Dick Shand had sworn truly, then certainly our friend John Caldigate was not in want of mercy. It was instant justice that he required — with such compensation as might come to him from the indignant sympathy of all good men.
I remember to have seen a man at Bermuda whose fate was peculiar. He was sleek, fat, and apparently comfortable, mixing pills when I saw him, he himself a convict and administering to the wants of his brother convicts. He remonstrated with me on the hardness of his position. ‘Either I did do it, or I didn’t,’ he said. ‘It was because they thought I didn’t that they sent me here. And if I didn’t, what right had they to keep me here at all?’ I passed on in silence, not daring to argue the matter with the man in face of the warder. But the man was right. He had murdered his wife; — so at least the jury had said — and had been sentenced to be hanged. He had taken the poor woman into a little island, and while she was bathing had drowned her. Her screams had been heard on the mainland, and the jury had found the evidence sufficient. Some newspaper had thought the reverse, and had mooted the question; — was not the distance too great for such screams to have been heard, or, at any rate, understood? So the man was again brought to trial in the Court of the Home Office, and was — not pardoned, but sent to grow fat and make pills at Bermuda. He had, or he had not, murdered his wife. If he did the deed he should have been hanged; — and if not, he should not have been forced to make extorted pills.
What was a Secretary of State to do in such a case? No doubt he believed that the wretch had murdered his wife. No doubt the judge believed it. All the world believed it. But the newspaper was probably right in saying that the evidence was hardly conclusive — probably right because it produced its desired effect. If the argument had been successfully used with the jury, the jury would have acquitted the man. Then surely the Secretary of State should have sent him out as though acquitted; and, not daring to hang him, should have treated him as innocent. Another trial was, in truth, demanded.
And so it was in Caldigate’s case. The Secretary of State, getting up early in the morning after a remarkable speech, in which he vindicated his Ministry from the attacks of all Europe, did read all the papers, and took home to himself the great Bagwaxian theory. He mastered Dick’s evidence; — and managed to master something also as to Dick’s character. He quite understood the argument as to the postage-stamps — which went further with him than the other arguments. And he understood the perplexity of his own position. If Bagwax was right, not a moment should be lost in releasing the ill-used man. To think of pardon, to mention pardon, would be an insult. Instant justice, with infinite regrets that the injuries inflicted admitted of no compensation — that and that only, was impressively demanded. How grossly would that man have been ill-used! — how cruelly would that woman have been injured! But then, again — if Bagwax was wrong; — if the cunning fraud had been concocted over here and not in Sydney; — if the plot had been made, not to incarcerate an innocent man, but to liberate a guilty man, then how unfit would he show himself for his position were he to be taken in by such guile! What crime could be worse than that committed by Caldigate against the young lady he had betrayed, if Caldigate were guilty? Upon the whole, he thought it would be safer to trust to the jury; but comforted himself by the reflection that he could for a while transfer the responsibility It would perhaps be expedient to transfer it altogether. So he sent all the papers on to Judge Bramber.
Judge Bramber was a great man. Never popular, he had been wise enough to disregard popularity. He had forced himself into practice, in opposition to the attorneys, by industry and perspicuity. He had attended exclusively to his profession, never having attempted to set his foot on the quicker stepping-stones of political life. It was said of him that no one knew whether he called himself Liberal or Conservative At fifty-five he was put upon the bench, simply because he was supposed to possess a judicial mind. Here he amply justified that opinion — but not without the sneer and ill-words of many. He was now seventy, and it was declared that years had had no effect on him. He was supposed to be absolutely merciless — as hard as a nether millstone, a judge who could put on the black cap without a feeling of inward disgust. But it may be surmised that they who said so knew nothing of him — for he was a man not apt to betray the secrets of his inner life. He was noted for his reverence for a jury, and for his silence on the bench. The older he grew the shorter became his charges; nor were there wanting those who declared that his conduct in this respect was intended as a reproach to some who are desirous of adorning the bench by their eloquence. To sit there listening to everything, and subordinating himself to others till his interposition was necessary, was his idea of a judge’s duty. But when the law had declared itself, he was always strong in supporting the law. A man condemned for murder ought to be hanged — so thought Judge Bramber — and not released, in accordance with the phantasy of philanthropists. Such were the requirements of the law. If the law were cruel, let the legislators look to that. He was once heard to confess that the position of a judge who had condemned an innocent man might be hard to bear; but, he added, that a country would be unfortunate which did not possess judges capable of bearing even that sorrow. In his heart he disapproved of the attribute of mercy as belonging to the Crown. It was opposed to his idea of English law, and apt to do harm rather than good.
He had been quite convinced of Caldigate’s guilt — not only by the direct evidence, but by the concurrent circumstances. To his thinking, it was not in human nature that a man should pay such a sum as twenty thousand pounds to such people as Crinkett and Euphemia Smith — a sum of money which was not due either legally or morally — except with an improper object. I have said that he was a great man; but he did not rise to any appreciation of the motives which had unquestionably operated with Caldigate. Had Caldigate been quite assured, when he paid the money, that his enemies would remain and bear witness against him, still he would have paid it. In that matter he had endeavoured to act as he would have acted had the circumstances of the mining transaction been made known to him when no threat was hanging over his head. But all that Judge Bramber did not understand. He understood, however, quite clearly, that under no circumstances should money have been paid by an accused person to witnesses while that person’s guilt and innocence were in question In his summing-up he had simply told the jury to consider the matter; — but he had so spoken the word as to make the jury fully perceive what had been the result of his own consideration.
And then Caldigate and the woman had lived together, and a distinct and repeated promise of marriage had been acknowledged. It was acknowledged that the man had given his name to the woman, so far as himself to write it. Whatever might be the facts as to the postmark and postage-stamp, the words ‘Mrs. Caldigate’ had been written by the man now in prison.
Four persons had given direct evidence; and in opposition to them there had been nothing. Till Dick Shand had come, no voice had been brought forward to throw even a doubt upon the marriage. That two false witnesses should adhere well together in a story was uncommon; that three should do so, most rare; with four it would be almost a miracle. But these four had adhered. They were people, probably of bad character — whose lives had perhaps been lawless. But if so, it would have been so much easier to prove them false if they were false. Thus Judge Bramber, when he passed sentence on Caldigate had not in the least doubted that the verdict was a true verdict.
And now the case was sent to him for reconsideration He hated such reconsiderations. He first read Sir John Joram’s letter, and declared to himself that it was unfit to have come from any one calling himself a lawyer. There was an enthusiasm about it altogether beneath a great advocate — certainly beneath any forensic advocate employed otherwise than in addressing a jury. He, Judge Bramber, had never himself talked of ‘demanding’ a verdict even from a jury. He had only endeavoured to win it. But that a man who had been Attorney-General — who had been the head of the bar — should thus write to a Secretary of State, was to him disgusting. To his thinking, a great lawyer, even a good lawyer, would be incapable of enthusiasm as to any case in which he was employed. The ignorant childish world outside would indulge in zeal and hot feelings — but for an advocate to do so was to show that he was no lawyer — that he was no better than the outside world. Even spoken eloquence was, in his mind, almost beneath a lawyer — studied eloquence certainly was so. But such written words as these disgusted him. And then he came across allusions to the condition of the poor lady at Folking. What could the condition of the lady at Folking have to do with the matter? Though the poor lady at Folking should die in her sorrow, that could not alter the facts as they had occurred in Australia! It was not for him, or for the Secretary of State, to endeavour to make things pleasant all round here in England. It had been the jury’s duty to find out whether that crime had been committed, and his duty to see that all due facilities were given to the jury. It had been Sir John Joram’s duty to make out what best case he could for his client — and then to rest contented. Had all things been as they should be, the Secretary of State would have had no duty at all in the matter. It was in this frame of mind that Judge Bramber applied himself to the consideration of the case. No juster man ever lived; — and yet in his mind there was a bias against the prisoner.
Nevertheless he went to his work with great patience, and a resolve to sift everything that was to be sifted. The Secretary of State had done no more than his required duty in sending the case to him, and he would now do his. He took the counter-evidence as it came in the papers. In order that the two Bagwaxian theories, each founded on the same small document, might be expounded, one consecutively after the other, Dick Shand and his deposition were produced first. The judge declared to himself that Dick’s single oath, which could not now be tested by cross-examination, amounted to nothing. He had been a drunkard and a pauper — had descended to the lowest occupation which the country afforded, and had more than once nearly died from delirium tremens. He had then come home penniless, and had — produced his story. If such evidence could avail to rescue a prisoner from his sentence, and to upset a verdict, what verdict or what sentence could stand? Poor Dick’s sworn testimony, in Judge Bramber’s mind, told rather against Caldigate than for him.
Then came the postmarks — as to which the Bagwaxian theory was quite distinct from that as to the postage-stamp. Here the judge found the facts to be somewhat complicated and mazy. It was long before he could understand the full purport of the argument used, and even at last he hardly understood the whole of it. But he could see nothing in it to justify him in upsetting the verdict; — nothing even to convince him that the envelope had been fraudulently handled. There was no evidence that such a dated stamp had not been in use at Sydney on the day named. Copies from the records kept daily at Sydney — photographed copies — should have been submitted before that argument had been used.
But when it came to the postage-stamp, then he told himself very quickly that the envelope had been fraudulently handled. The evidence as to the date of the manufacture of the stamp was conclusive. It could not have served to pay the postage on a letter from Sydney to Nobble in May 1873, seeing that it had not then been in existence. And thus any necessity there might otherwise have been for further inquiry as to the postmarks was dissipated. The envelope was a declared fraud, and the fraud required no further proof. That morsel of evidence had been fabricated, and laid, at any rate, one of the witnesses in the last trial open to a charge of perjury. So resolving Judge Bramber pushed the papers away from him, and began to think the case over in his mind.
There was certainly something in the entire case as it now stood to excuse Sir John. That was the first line which his thoughts took. An advocate having clearly seen into a morsel of evidence on the side opposed to him, and having proved to himself beyond all doubt that it was maliciously false, must be held to be justified in holding more than a mere advocate’s conviction as to the innocence of his client. Sir John had of course felt that a foul plot had been contrived. A foul plot no doubt had been contrived. Had the discovery taken place before the case had been submitted to the jury, the detection of that plot would doubtless have saved the prisoner, whether guilty or innocent. So much Judge Bramber admitted.
But should it necessarily serve to save him now? Before a jury it would have saved him, whether guilty or innocent. But the law had got hold of him, and had made him guilty, and the law need not now subject itself to the normal human weakness of a jury. The case was now in his hands — in his, and those of the Secretary, and there need be no weakness. If the man was innocent, in God’s name let him go; — though, as the judge observed to himself, he had deserved all he had got for his folly and vice. But this discovered plot by no means proved the man’s innocence. It only proved the determination of certain persons to secure his conviction, whether by foul means or fair. Then he recapitulated to himself various cases in which he had known false evidence to have been added to true, with the object of convincing a jury as to a real fact.
It might well be that this gang of ruffians — for it was manifest that there had been such a gang — finding the envelope addressed by the man to his wife, had fraudulently — and as foolishly as fraudulently — endeavoured to bolster up their case by the postage-stamp and the postmark. Looking back at all the facts, remembering that fatal twenty thousand pounds, remembering that though the postmarks were forged on that envelope the writing was true, remembering the acknowledged promise and the combined testimony of the four persons — he was inclined to think that something of the kind had been done in this case. If it were so, though he would fain see the perpetrators of that fraud on their trial for perjury, their fraud in no way diminished Caldigate’s guilt. That a guilty man should escape out of the hands of justice by any fraud was wormwood to Judge Bramber. Caldigate was guilty. The jury had found him so. Could he take upon himself to say that the finding of the jury was wrong because the prosecuting party had concocted a fraud which had not been found out before the verdict was given? Sir John Joram, whom he had known almost as a boy, had ‘demanded’ the release of his client. The word stuck in Judge Bramber’s throat. The word had been injudicious The more he thought of the word the more he thought that the verdict had been a true verdict, in spite of the fraud. A very honest man was Judge Bramber; — but human.
He almost made up his mind — but then was obliged to confess to himself that he had not quite done so. ‘It taints the entire evidence with perjury,’ Sir John had said. The woman’s evidence was absolutely so tainted — was defiled with perjury. And the man Crinkett had been so near the woman that it was impossible to disconnect them. Who had concocted the fraud? The woman could hardly have done so without the man’s connivance. It took him all the morning to think the matter out, and then he had not made up his mind. To reverse the verdict would certainly be a thorn in his side — a pernicious thorn — but one which, if necessary, he would endure Thorns, however, such as these are very persuasive.
At last he determined to have inquiry made as to the woman by the police. She had laid herself open to an indictment for perjury, and in making inquiry on that head something further might probably be learned.
Last updated Sunday, March 27, 2016 at 12:01