THE OLD BAILEY—ADVANTAGES OF THE NEW SYSTEM ILLUSTRATED.

And I saw in my dream that Don O’Rapley and worthy Master Bumpkin proceeded together until they came to the Old Bailey; that delightful place which will ever impress me with the belief that the Satanic Personage is not a homeless wanderer. As they journeyed together O’Rapley asked whether there was any particular kind of case which he would prefer—much the same as he would enquire what he would like for lunch.

“Well, thankee, sir,” said Bumpkin, “what he there?”—just the same as a hungry guest would ask the waiter for the bill of fare.

“Well,” said Mr. O’Rapley, “there’s no murder to-day, but there’s sure to be highway robberies, burglaries, rapes, and so on.”

“Wall, I thinks one o’ them air as good as anything,” said Bumpkin. “I wur on the jury once when a chap were tried.”

“Did he get off?”

“Got off as clane as a whusle. Not guilty, we all said: sarved her right.”

“It’s rather early in the morning, p’r’aps,” said O’Rapley; “but there’s sure to be something interesting before lunch—crimes are very pop’lar, and for my own part, I think they’re as nice as anything: divorces, p’r’aps, are as good, and the female intellect prefers ’em as a more digestable food for their minds.”

“As a what, sir!”

“Well, since they did away with crim. cons, there’s nothing left for females but murders and divorces, worth speaking of.”

“Why, how’s that, then?”

“O, they’re not considered sufficiently moral, that’s all. You see, Master Bumpkin, we’re getting to be a very moral and good people. They’re doin’ away with all that’s naughty, such as music and dancing, peep-shows and country fairs. This is a religious age. No pictur galleries on a Sunday, but as many public-houses as you like; it’s wicked to look at picturs on a Sunday. And now I’ll tell you another thing, Master Bumpkin, although p’r’aps I ought to keep my mouth closed; but ’ere you’ll see a Chancery Judge as knows everything about land and titles to property, and all that, and never had any training in Criminal Courts, and may be never been inside of one before, you’ll see ’im down ’ere tryin’ burglaries and robberies, and down at the Assizes you’ll see ’im tryin’ men and women for stealing mutton pies and a couple of ounces of bacon; that’s the way the Round Square’s worked, Master Bumpkin; and very well it acts. There’s a moral atmosphere, too, about the Courts which is very curious. It seems to make every crime look bigger than it really is. But as I say, where’s the human natur of a Chancery barrister? How can you get it in Chancery? They only sees human natur in a haffidavit, and although I don’t say you can’t put a lot of it into a haffidavit, such as perjury and such like, yet it’s so done up by the skill of the profession that you can hardly see it. Learning from haffidavits isn’t like learning from the witness-box, mark my words, Mr. Bumpkin; and so you’ll find when you come to hear a case or two.”

Having thus eloquently delivered himself, Mr. O’Rapley paused to see its effect: but there was no answer. There was no doubt the Don could talk a-bit, and took especial pride in expressing his views on law reform, which, to his idea, would best be effected by returning to the “old style.”

And I saw that they pushed their way through a crowd of people of all sorts and degrees of unwashedness and crime, and proceeded up a winding stair, through other crowds of the most evil-looking indictable persons you could meet with out of the Bottomless Pit.

And amongst them were pushing, with eager, hungry, dirty faces, men who called themselves clerks, evil-disposed persons who traded under such names as their owners could use no longer on their own account. These prowlers amongst thieves, under the protection of the Law, were permitted to extort what they could from the friends of miserable prisoners under pretence of engaging counsel to defend them. Counsel they would engage after a fashion—sometimes: but not unfrequently they cheated counsel, client and the law at the same time, which is rather better than killing two birds with one stone.

And the two friends, after threading their way through the obnoxious crowd, came to the principal Court of the Old Bailey, called the “Old Court,” and a very evil-looking place it was. All the ghosts of past criminals seemed floating in the dingy atmosphere. Crowds of men, women and children were heaped together in all directions, except on the bench and in a kind of pew which was reserved for such ladies as desired to witness the last degradation of human nature.

Presently came in, announced with a loud cry of “Silence!” and “Be uncovered in Court!” a gorgeous array of stout and berobed gentlemen, with massive chains and purple faces. These, I learned, were the noble Aldermen of the Corporation. What a contrast to the meagre wretches who composed the crowd! Here was a picture of what well-fed honesty and virtue could accomplish for human nature on the one part, as opposed to what hungry crime could effect, on the other. Blessings, say I, on good victuals! It is a great promoter of innocence. And I thought how many of the poor, half-starved, cadaverous wretches who crowded into the dock in all their emaciated wretchedness and rags would, under other conditions, have become as portly and rubicund and as moral as the row of worthy aldermen who sat looking at them with contempt from their exalted position.

The rich man doesn’t steal a loaf of bread; he has no temptation to do so: the uneducated thief doesn’t get up sham companies, because he has no temptation to do so. Temptation and Opportunity have much to answer for in the destinies of men. Honesty is the best policy, but it is not always the most expedient or practicable.

Now there was much arraignment of prisoners, and much swearing of jurymen, and proclamations about “informing my Lords Justices and the Queen’s Attorney-General of any crimes, misdemeanours, felonies, &c., committed by any of the prisoners,” and “if anybody could so inform my Lords Justices,” &c, he was to come forward and do so, and he would be heard. And then the crowd of prisoners, except the one about to be tried, were told to stand down. And down they all swarmed, some laughing and some crying, to the depths below. And the stout warders took their stand beside the remaining prisoner.

“Now,” said Mr. O’Rapley, “this Judge is quite fresh to the work, and I’ll warrant he’ll take a moral view of the law, which is about the worst view a Judge can take.”

The man left in the dock was a singular specimen of humanity: he was a thin, wizen-looking man of about seventy, with a wooden leg: and as he stood up to plead, leant on two crutches, while his head shook a good deal, as if he had got the palsy. A smile went round the bar, and in some places broke out into a laugh: the situation was, indeed, ridiculous; and before any but a Chancery Judge, methought, there must be an acquittal on the view. However, I saw that the man pleaded not guilty, and then Mr. Makebelieve opened the case for the Crown. He put it very clearly, and, as he said, fairly before the jury; and then called a tall, large-boned woman of about forty into the witness-box. This was the “afflicted widow,” as Makebelieve had called her; and the way she gave her evidence made a visible impression on the mind of the learned Judge. His Lordship looked up occasionally from his note-book and fixed his eyes on the prisoner, whose appearance was that of one trembling with a consciousness of guilt—that is, to one not versed in human nature outside an affidavit.

Mr. Nimble, the prisoner’s counsel, asked if the prisoner might sit down as he was very “infirm.”

“Have you an affidavit of that fact, Mr. Nimble?” asked the Judge.

“No, my lord; it is not usual on such an application to have an affidavit.”

“It is not usual,” said his lordship, “to take notice of any fact not upon affidavit; but in this case the prisoner may sit down.”

The prosecutrix gave her evidence very flippantly, and did not seem in the least concerned that her virtue had had so narrow an escape.

“Now,” asked Mr. Nimble, “what are you?”

The learned Judge said he could not see what that had to do with the question. Could Mr. Nimble resist the facts?

“Yes, my lord,” answered the learned counsel; “and I intend, in the first place, to resist them by showing that this woman is entirely unworthy of credit.”

“Are you really going to suggest perjury, Mr. Nimble?”

“Assuredly, my lord! I am going to show that there is not a word of truth in this woman’s statement. I have a right to cross-examine as to her credit. If your lordship will allow me, I will—”

“Cross-examination, Mr. Nimble, cannot be allowed, in order to make a witness contradict all that she has said in her examination-in-chief; it would be a strange state of the law, if it could.”

Mr. Nimble looked about the desk, and then under it, and felt in his bag, and at last exclaimed in a somewhat petulant tone:

“Where’s my Taylor?”

“What do you want your tailor for?” asked the Judge.

“I wish to point out to your lordship that my proposition is correct, and that I can cross-examine to the credit of a witness.”

Here the clerk of arraigns, who sat just under the learned Judge, and was always consulted on matters of practice when there was any difficulty, was seen whispering to his lordship: after which his lordship looked very blank and red.

“We always consult him, my lord,” said Mr. Nimble, with a smile, “in suits at Common Law.”

Everybody tried not to laugh, and everybody failed. Even the Judge, being a very good-tempered man, laughed too, and said:

“O yes, Taylor on Evidence, Mr. Nimble.”

At last the book, about the size of a London Directory, was handed up by a tall man who was Mr. Nimble’s clerk.

“Now, my lord, at page nineteen hundred and seventy-two your lordship will find that when the credibility of a witness is attacked—”

Judge: “That will be near the end of the book.”

Mr. Nimble: “No, my lord, near the beginning.”

“I shall not stop you,” said the learned Judge; “your question may be put for what it is worth: but now, suppose in answer to your question she says she is an ironer, what then?”

“That’s what I am, my lordship,” said the woman, with an obsequious curtsey.

“There, now you have it,” said the Judge, “she is an ironer; stop, let me take that down, ‘I am an ironer.’”

The cross-examination continued, somewhat in an angry tone no doubt, and amid frequent interruptions; but Mr. Nimble always thumped down the ponderous Taylor upon any objection of the learned Judge, and crushed it as though it were a butterfly.

Next the policeman gave his evidence, and was duly cross-examined. Mr. Nimble called no witnesses; there were none to call: but addressed the jury in a forcible and eloquent speech, stigmatizing the charge as an utterly preposterous one, and dealing with every fact in a straightforward and manly manner. After he had finished, the jury would undoubtedly have acquitted; but the learned Judge had to sum up, which in this, as in many cases at Quarter Sessions, was no more a summing up than counting ten on your fingers is a summing up. It was a desultory speech, and if made by the counsel for the prosecution, would have been a most unfair one for the Crown: totally ignoring the fact that human nature was subject to frailties, and testimony liable to be tainted with perjury. It made so great an impression upon me in my dream that I transcribed it when I awoke; and this is the manner in which it dealt with the main points:—

“Gentlemen of the Jury,

“This is a case of a very serious character (the nature of the offence was then read from Roscoe), and I am bound to tell you that the evidence is all one way: namely, on the side of the prosecution. There is not a single affidavit to the contrary. Now what are the facts?”

Mr. Nimble: “Would your lordship pardon me—whether they are facts or not is for the jury.”

“I am coming to that, Mr. Nimble; unless contradicted they are facts, or, at least, if you believe them, gentlemen. If the evidence is uncontradicted, what is the inference? The inference is for you, not for me; I have simply to state the law: it is for you to find the facts. You must exercise your common sense: if the prisoner could have contradicted this evidence, is it reasonable to suppose he would not have done so with so serious a charge hanging over his head?”

“My lord, may I ask how could the prisoner have called evidence? there was no one present.”

“Mr. Nimble,” said his Lordship solemnly, “he might have shown he was elsewhere.”

“Yes, my lord; but the prisoner admits being present: he doesn’t set up an alibi.”

“Gentlemen, you hear what the learned counsel says: he admits that the prisoner was present; that is corroborative of the story told by the prosecutrix. Now, if you find a witness speaking truthfully about one part of a transaction, what are you to infer with regard to the rest? Gentlemen, the case is for you, and not for me: happily I have not to find the facts: they are for you—and what are they? This woman, who is an ironer, was going along a lonely lane, proceeding to her home, as she states—and again I say there is no contradiction—and she meets this man; he accosts her, and then, according to her account, assaults her, and in a manner which I think leaves no doubt of his intention—but that is for you. I say he assaults her, if you believe her story: of course, if you do not believe her story, then in the absence of corroboration there would be an end of the case. But is there an absence of corroboration? What do we find, gentlemen? Now let me read to you the evidence of Police Constable Swearhard. What does he say? ‘I was coming along the Lover’s Lane at nine twenty-five, and I saw two persons, whom I afterwards found to be the prosecutrix and the prisoner.’ ‘You will mark that, gentlemen, the prisoner himself does not suggest an alibi, that is to say, that he was elsewhere, when this event occurred. Then he was upon the spot: and the policeman tells you—it is for you to say whether you believe the policeman or not; there is no suggestion that he is not a witness of truth—and he says that he heard a scream, and caught the defendant in the act. Now, from whom did that scream proceed? Not from the prisoner, for it was the scream of a woman. From whom then could it proceed but from the prosecutrix? Now, in all cases of this kind, one very material point has always been relied on by the Judges, and that point is this: What was the conduct of the woman? Did she go about her ordinary business as usual, or did she make a complaint? If she made no complaint, or made it a long time after, it is some evidence—not conclusive by any means—but it is some evidence against the truth of her story. Let us test this case by that theory. What is the evidence of the policeman? I will read his words: ‘The moment I got up,’ he says, now mark that, gentlemen, ‘the woman complained of the conduct of the prisoner: she screamed and threw herself in my arms and then nearly fainted.’ Gentlemen, what does all that mean? You will say by your verdict.”

“Consider your verdict,” said the Clerk of Arraigns, and almost immediately the Jury said: “Guilty of attempt.”

“Call upon him,” said the Judge: and he was called upon accordingly, but only said “the prosecutrix was a well-known bad woman.”

Then the Judge said very solemnly:—

“Prisoner at the bar, you have been convicted upon the clearest possible evidence of this crime: what you say about the character of the prosecutrix the more convinces me that you are a very bad man. You not only assail the virtue of this woman, but, happily prevented in your design, you endeavour to destroy it afterwards in this Court. No one who has heard this case can doubt that you have been guilty of this very grave offence; and in my judgment that offence is aggravated by the fact that you committed it against her will and without her consent. The sentence is that you be sent to prison for eighteen calendar months.”

“Rather warm,” said Mr. O’Rapley.

“Never heeard such a thing in my life,” said Master Bumpkin, “she wur a consentin’ party if ever there wur one.”

“But that makes no difference now-a-days,” said Mr. O’Rapley. “Chancery Judges studies the equity of the thing more. But perhaps, Mr. Bumpkin, you don’t know what that means?”

“No,” said Bumpkin, “I doan’t.”

“You must be quiet,” said Mr. O’Rapley; “recollect you are in a Court of Justice.”

“Be I! It ’ud take moore un thic case to make I believe it; but lookee here: I be hanged if there ain’t that Snooks feller down along there.”

“Who?” enquired O’Rapley.

“That there feller,” said Bumpkin, “be sure to find his way where there’s anything gooin on o’ this ere natur.”

Next an undefended prisoner was placed on trial, and as he was supposed to know all the law of England, he was treated as if he did.

“You can’t put that question, you know,” said the learned Judge; “and now you are making a statement; it is not time to make your statement yet; you will have ample opportunity by-and-by in your speech to the jury.” And afterwards, when the Judge was summing up, the unhappy prisoner called his lordship’s attention to a mistake; but he was told that he had had his turn and had made his speech to the jury, and must not now interrupt the Court. So he had to be quite silent until he was convicted. Then the two companions went into another court, where a very stern-looking Common Law Judge was trying a ferocious-looking prisoner. And Mr. O’Rapley was delighted to explain that now his friend would see the difference. They had entered the court just as the learned Judge had begun to address the jury; and very careful his lordship was to explain (not in technical language), but in homely, common-place and common-sense English, the nature of the crime with which the prisoner was charged. He was very careful in explaining this, for fear the jury should improperly come to the conclusion that, because they might believe the prisoner had in fact committed the act, he must necessarily be guilty. And they were told that the act was in that case only one element of the crime, and that they must ascertain whether there was the guilty intent or no. Now this old Mr. Justice Common Sense, I thought, was very well worth listening to, and I heartily wished Mr. Justice Technical from the Old Court had been there to take a lesson; and I take the liberty of setting down what I heard in my dream for the benefit of future Justices Technical.

His lordship directed the jury’s attention to the evidence, which he carefully avoided calling facts: not to the verbatim report of it on his note-book as some Recorders do, and think when they are reading it over they are summing it up; but pointing out statements which, if believed, become facts and if facts, lead to certain inferences of guilt or innocence.

It was while the learned Mr. Justice Common Sense was thus engaged, that the warder in the dock suddenly checked the prisoner with these words:

“You mustn’t interrupt.”

“Why may he not interrupt?” asks Mr. Justice Common Sense. “What do you want to say, prisoner?”

“My lord,” answered the prisoner, “I wanted to say as how that there witness as your lordship speaks on didn’t say as he seen me there.”

“O, didn’t he?” said the Judge. “I thought he did—now let us see,” turning over his notes. “No, you are quite right, prisoner, he did not see you at the spot but immediately after.”

Then his lordship proceeded until there was another interruption of the same character, and the foolish warder again told the prisoner to be quiet. This brought down Mr. Justice Common Sense with a vengeance:

“Warder! how dare you stop the prisoner? he is on his trial and is undefended. Who is to check me if I am misstating the evidence if he does not? If you dare to speak like that to him again I will commit you. Prisoner, interrupt me as often as you think I am not correctly stating the evidence.”

“Thankee, my lord.”

“That be the sort o’ Judge for me,” said Bumpkin; “but I’ve ’ad enough on it, Maister O’Rapley, so if you please, I’ll get back t’ the ‘Goose.’ Why didn’t that air Judge try t’other case, I wonder?”

“Because,” replied the Don, “the new system is to work the ‘Round Square’.”