The Reminiscences of Sir Henry Hawkins (Baron Brampton) Part 32

[In ill.u.s.tration of this Mr. Cecil A. Coward has given an incident that occurred in an action for slander tried at the Guildhall many years ago, in which Mr. Hawkins, Q.C., was for the defendant, and Mr.

Joseph Brown, Q.C., for the plaintiff. The slander consisted in the defendant pointing his thumb over his shoulder and asking another man, "Do you know him? That's Joe Smith."

Mr. Joseph Brown, Q.C., had to rely upon his innuendo--"meaning thereby Joe Smith was a rogue"--and was very eloquent as to slander unspoken but expressed by signs and tone. After an exhausting speech he sat down and buried his head in his bandana, as his habit was.

Hawkins got up, and turned Mr. Joseph Brown's speech to ridicule in two or three sentences.

"Gentlemen," he almost whispered, after a very small whistle which n.o.body could hear but those close around, at the same time pointing his thumb over his shoulder at his opponent, "do you know him--do you know Joe Brown?" There was a roar of laughter. Joe looked up, saw nothing, and retired again into his bandana.

Again the performance was gone through. "Do you know Joe Brown, the best fellow in the world?"

Brown looked up again, and was just in time to hear the jury say they had heard quite enough of the case. No slander--verdict for the defendant.

It was one of the best pieces of acting I ever saw him do.]

CHAPTER x.x.xI.

APPOINTED A JUDGE--MY FIRST TRIAL FOR MURDER,

No sooner was the Tichborne case finished than I was once more in the full run of work.

One brief was delivered with a fee marked twenty thousand guineas, which I declined. It would not in any way have answered my purpose to accept it. I was asked, however, to name my own fee, with the a.s.surance that whatever I named it would be forthcoming. I promised to consider a fee of fifty thousand guineas, and did so, but resolved not to accept the brief on any terms, as it involved my going to Indie, and I felt it would be unwise to do so.

In 1874 I was offered by Lord Cairns the honour of a judges.h.i.+p, which I respectfully declined. It was no hope of mine to step into a puisne judges.h.i.+p, or, for the matter of that, any other judicial position.

I was contented with my work and with my career. I did not wish to abandon my position at the Bar, and my friends at the Bar, and take up one on the Bench with no friends at all; for a Judge's position is one of almost isolation. This refusal gave great dissatisfaction to many, and a letter I have before me says, "I got into a great row with my editor by your refusal." Another said he lost a lot of money in consequence: "I thought it was any odds upon your taking it."

Sir Alexander c.o.c.kburn gave me a complimentary side-cut in a speech he made to some of his old const.i.tuents.

"The time comes," said he, "when men of the greatest eminence are called upon to give up their professional emoluments for the interests of their country. In my opinion they have no right to refuse their services; no man has this right when his country calls for them."

But these animadversions did not affect me. I held on to the course which I had deliberately chosen, and which I thought my labours and sacrifices in the Tichborne case on behalf of my country ent.i.tled me to enjoy. Let any one who has the least knowledge of advocacy consider what it was to carry that case to a successful issue, and then condemn me for not taking a judges.h.i.+p if he will. I was ent.i.tled to freedom and rest. A judges.h.i.+p is neither, as one finds out when once he puts on the ermine. But it requires no argument to justify the course I took. I was ent.i.tled to decline, and I did. There is nothing else to be said; all other considerations are idle and irrelevant.

A judges.h.i.+p was, however, a second time offered by Lord Cairns in 1876. This, after due consideration, I accepted, and received my appointment as a Judge of the Exchequer Court on November 2 of that year.

The first and most sensational case that I was called upon to preside over was known as the Penge case. Sir Alexander c.o.c.kburn had appointed himself to try it, on account of its sensational character; but as it came for trial at a time when the Lord Chief Justice could not attend, it fell to the junior Judge on the Bench.

I am not going to relate the details of that extraordinary case,[A]

which are best left in the obscurity of the newspaper files; but I refer to it because it cannot well be pa.s.sed over in the reminiscences of my life. I shall, however, only touch upon one or two prominent points.

[Footnote A: The great sensation of the case was almost overpowered by the great sensation that "a new power had come upon the Bench." These are, as nearly as I can give them, the words of one of our most distinguished advocates, and one of the most brilliant who was in the Penge case:--

"We felt, and the Bar felt, that a great power had come upon the Bench; he summed up that case as no living man could have done. Every word told; every point was touched upon and made so clear that it was impossible not to see it."

Another distinguished advocate said there was no other Judge on the Bench who could have summed that case up as Sir Henry Hawkins did.--R.H.]

"Every person," I said in my summing up, "who is under a legal duty, whether such duty was imposed by law or contract, to take charge of another person must provide that person with the necessaries of life.

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'