Chapter XVIII: Part 18

“Then comes Professor Taylor, who analysed the contents of the stomach, &c., and who states that he found no strychnia nor any poison which could account for the death of Mr. Cook. As Lord Campbell said with a sneer, ‘Of course, upon this the whole defence rests.’ It strikes me as being a very feasible defence indeed, but more of that presently. However, Dr. Taylor states that you must not draw the conclusion that because no strychnia was found, therefore none was administered, because he had known cases (though of very rare occurrence) where he had himself administered that drug to animals, and afterwards tested for and failed to discover it; and from the symptoms he is convinced that Mr. Cook must have died from strychnia. Dr. Rees is of a similar opinion. Now, the result of this evidence is to destroy the practical utility of analysis for strychnia altogether; for although if strychnia be detected, it is proof that it has been administered, yet if it be not detected, that is no proof that it has not been administered.

“Then let us look at the other side. Mr. Herepath, who is confessedly one of the greatest analytical chemists of the present day, states that if the minutest particle of strychnia were present in the body, he would guarantee to find it, and in that statement he is corroborated by a series of eminent toxicologists. It is suggested, in answer to this evidence, that Professor Taylor did not apply the proper tests. Surely, if he did not, it did not lie in the mouth of the prosecution to urge that argument. He was their witness; he was employed by them to make the analysis, and they trusted to his capacity to do so; and when he states that he found no strychnia, the fair and logical deduction is, not that he did not use the proper tests, but that there was no strychnia to be found. Notwithstanding this, Lord Campbell put it very strongly--and, as I conceive, very unjustifiably and illegally, to the jury--that Professor Taylor might not have used the proper tests, and that it was for them to consider whether, if the proper tests had been applied, strychnia might not have been discovered. But, however, Mr. Herepath, whose testimony is borne out by other chemical witnesses for the defence, states that he will guarantee to find strychnia in all cases where it is present, however infinitesimal the quantity; that he never found his tests to fail, and that the only conclusion he could draw from the fact of strychnia not being found is that none was administered. Upon the one hand, therefore, you have the positive opinions of fallible medical men, founded upon a second-hand knowledge of the symptoms, as to the impossibility of their resulting from any other cause than strychnia. Upon the other hand you have the equally positive opinions of medical men similarly situated as to the effect of those symptoms being reconcilable with natural causes. Cast into the scales the unerring inspirations of chemical science, add that the life of a fellow-creature is at stake, and which way lies the balance of evidence?”

My lord, what answer can you make to this argument? You will say, perhaps, that you have convinced yourself that my brother is guilty. This, indeed, may satisfy a man of weak or of no conscience; but how will it fall upon the great body of the enlightened British public, who have been wound up, it is true, to the most awful excitement against this unhappy man, but who will assuredly awaken from that excitement and demand in tones of thunder how it came to pass that you, who should have stood between the prisoner and prejudice, ministered to that prejudice, and were found to be his accuser rather than his judge!

And here, my lord, before I proceed further, let me exonerate you from all the blame of this sham trial. You had a brother judge by your side who shares with you all the responsibility of prejudice against my brother, who made no secret, but rather an indecent display of that prejudice in a manner which astonished the whole auditory, and who ought also to be recorded with you to all time coming as having participated in the laurels of blood with which you should be crowned--I allude to Mr. Baron Alderson. That learned functionary, who inaugurated the first day’s proceedings by falling asleep and nearly tumbling over his desk during the Attorney-General’s opening speech, amused himself during the progress of the trial by suggesting questions to Mr. James, the counsel for the prosecution, by lifting up his hands in apparent astonishment when anything favourable to the prisoner was elicited on cross-examination, by looking at the jury with every mark of incredulity and contempt when Serjeant Shee suggested any matter beneficial to my brother, and by joining with your lordship in overruling every legal objection which was raised by the counsel for the defence. Once also, when Serjeant Shee asked one of the witnesses, “Where are the pathionic glands?” Baron Alderson started up with every mark of anger and exclaimed, “Humbug!” And on another occasion, when your lordship, or Mr. Justice Cresswell, addressed the serjeant as “Brother Shee,” Baron Alderson impatiently cried out, “Oh, bother Shee!” I can feel no surprise, therefore, when I find your lordship, while pronouncing sentence on my brother, declaring that Baron Alderson concurred with the finding of the jury, though, unless he concurred with you before the verdict was pronounced, he certainly did not do so in Court, as no communication passed between you and either of the judges after that fatal word. But of Mr. Justice Cresswell I feel bound to declare the feeling of my brother, of all my family, and, unanimously, as I am told, that of my brother’s counsel, that his conduct was in accordance with all that we hear or know of the purity of the bench; that his demeanour was dignified, noble, impartial, and most honourable; and that, but for his interference, visible, as was remarked on many important occasions, your lordship would have admitted evidence illegally against my brother, or excluded testimony which his advisers hoped would operate favourably for him on the minds of his jury. Never shall the memory of his conduct be erased from our hearts; we all have felt, and we shall always continue to feel it; nor shall any sunset close on me for the remainder of my days that shall not witness my earnest prayer for him who did all that a judge should do to maintain the character of our country and its criminal jurisprudence; and who probably would have exerted himself still more strenuously but for the feeling that upon your lordship, as chief judge, the great responsibility of this case rested, and that he himself was but an appendage rather than a ministering officer at the trial.

My lord, the remarks which I have up to this time made may be considered preliminary to my investigations of your charge, but they seem to me of consequence to a right understanding of the language in which you thought it proper to address them, and to a due appreciation of the kind of way in which the guilt has been fastened upon my brother’s shoulders. A writer in a daily paper says--“However horrible it may be that a systematic poisoner should escape the penalty of his crimes by an effort of legal chicanery, there is something even more repugnant to the principles of British law, and that is, that a man should be found guilty upon insufficient evidence; and there is something still more revolting, both to the constitution of the country and to human nature, namely, that a man should be hanged for a murder which there is no satisfactory proof had ever been committed.”

Yet, my lord, there is something still more dreadful, and it is this, that the time-renowned prestige of British trial by jury should be abrogated, as abrogated it will be, if your lordship’s precedent is to be followed by present or future judges. Did your lordship really leave any question to the jury upon which to exercise an impartial reason? Did you throw upon them the whole responsibility of the verdict, as by the theory of the law you ought to have done? Did you merely lay down the legal principles governing the case, or did you not step out of the way to comment (like an advocate) on the evidence? To get up this witness and to knock down that one, to praise those who supported Dr. Taylor’s theory and to censure those who were independent of such nonsense? Did not your lordship convey, as clearly to the jury, by meaning looks, by thumping the desk with peculiar energy, by laying emphasis on certain parts of the evidence, and then pausing and gazing intently upon the jurymen, by shaking your head, as if your thoughts of my brother’s guilt were too dreadful for utterance; by repeating over and over again those parts which told heaviest against him; by running on the evidence for the prisoner so that it was impossible for the jury to understand it; by charging against him, for a whole day and on the morning of the second, recapitulating with fearful emphasis and solemnity all your arguments of the preceding night, condensing them and summing them into one argumentative whole, from which it was almost impossible for the jury to draw any other conclusion than that you wished them to find a verdict of guilty? And when you had done all this you devoted the rest of the day--about two hours and a half--to the prisoner’s evidence, having given upwards of eleven hours to the evidence for the prosecution. If you think this consistent with your duty and with trial by jury, I can only say you stand alone; for if any faith is to be placed in the public Press, in the tone of general conversation, in the loudly-expressed voice of all independent persons, you have struck a blow at trial by jury from which it never will recover, unless the great mass of the community now protest against such a course in language that cannot be mistaken. If persons are thus persuaded into giving verdicts by judges in high station there is an end to the liberties of Englishmen. Trial by jury becomes, in the language of Lord Denman, “a mockery, a delusion, and a snare,” and the most glorious privilege which we have inherited from our ancestors degenerates into an engine of tyranny, cruelty, and falsehood, to entrap and destroy those who regard it as their dearest birthright. My lord, if there be no sympathy for my brother, let there be at least a feeling for our own rights when they are invaded, and let the public meditate in time that it is by little and little the grandest rights of states and empires are insidiously sapped until they perish.

I am not about to recapitulate the arguments of Serjeant Shee, which prove that this charge of murder is one of the most improbable in the annals of criminal jurisprudence. These arguments failed with the jury because they were not permitted to exercise a calm judgment upon them. But I may call attention to the gross fallacy on which the whole prosecution was founded--that of starting with the positive theory of a murder and then endeavouring by all means to fix that murder upon my brother.

It is, therefore, clear that in this case a great, and what would have proved in any other an insurmountable difficulty meets one at the threshold--that in order to obtain a conviction one must reverse the legal and customary order of proceeding. Instead of proving a murder first and discovering the murderer afterwards, you first prove the murderer and thence deduce a murder. That is the course which the necessities of the case compelled the Attorney-General to pursue, and it was your duty to have exploded that theory in your summing up. But you did no such thing. On the contrary, you went into all the antecedents of the prisoner, and put them to the jury as an element in the consideration of whether a murder had or had not been committed. And having thus prepared the minds of the jury by the antimony of motives, suspicious circumstances, &c., you then administer to them the strychnia of a murder. You descanted more especially upon the purchase of strychnia by the prisoner just before Cook’s death as strong evidence that Cook was poisoned. That circumstance, coming after proof of Cook’s death by strychnia, would reduce the case to one of almost geometrical accuracy; but by itself, in the absence of such proof--nay, in presence of scientific proof to the contrary--of what value is it? Besides, it is quite incompatible with the case for the prosecution. The prosecution suggests that my brother had a deliberate intention to murder Cook, and had for ten days been adopting preliminary measures to carry that intention into effect; that when the time for the completion of his infernal purpose approached (which was on the Sunday), he wrote for Mr. Jones, of Lutterworth, a surgeon, and a personal friend of the deceased, to come over and be present at his last moments, in order that his presence there might stave off suspicion. Now, if that were so, is it not reasonable to suppose that he would have had the poison ready to be administered, and not trust to the doctrine of chances to procure it at a village like Rugeley when wanted for immediate use? Surely the professional poisoner might naturally be expected to keep a good stock-in-trade? Nothing of the sort. On the Monday night (if the case for the prosecution is to be believed) he gets from Newton three grains of strychnia, which he gives almost immediately afterwards to Cook. Cook is attacked with strychnia-tetanus, but recovers, and is nearly quite well the next day. The prisoner, finding Cook not dead, gets six grains from Roberts on the Tuesday, which he also gives to Cook, and this time he succeeds in his purpose. Now, is not this--the blackest part of the case against my brother--very improbable? Would the poisoner of fourteen people do his work in such a clumsy fashion? But, then, the possession or destination of those six grains is not attempted to be accounted for. That certainly is a most inculpatory circumstance. But we must remember this, that until it was known that the prisoner had had this strychnia, it was never suspected that Cook died from strychnia. It was that circumstance which originated the train of ideas as to my brother’s guilt; and when charged with murder he may naturally have thought that the strychnia, if found in his possession, would be evidence of his guilt, and so may have destroyed it; whereas, if he had preserved it, it would have been the strongest proof of his innocence. Then, if he did destroy it, he could give no proof of the fact, for, of course, it would be done without the privity of any one else. Now, if he had been in France he himself would have been subjected to a strict examination upon all the points of the case, and his own statement upon that point, whether for or against him, would have been in evidence. Moreover, how does this part of the case reconcile with the medical evidence? It is admitted on all hands that half a grain is sufficient to destroy life; but a grain, or two, or three, no man could survive that. Still, the inference unquestionably is that that quantity was administered on Monday night but did not kill, and the next day the dose was doubled! Nine grains in all! And of these nine grains of strychnia, which unquestionably were administered if Cook died from that poison, no trace whatever can be discovered in the body!

I will not further dwell upon this subject, but come to your lordship’s conduct and charge, which are the more immediate objects of this letter.

The first thing which appeared to me unfair was the order which your lordship made that the medical witnesses for the Crown should be accommodated with seats in the most convenient part of the Court, while the greater number of witnesses for the defence were obliged to stand during the greater part of the trial--no slight mode of exhausting them mentally as well as physically. And so rigidly was this carried out that none of the medical witnesses for the defence were admitted into Court until all the witnesses for the prosecution had taken their seats, and fully preoccupied all the vacant space. This may appear a slight thing, but I know how greatly it affected some of the older medical witnesses for my brother, and how much it weakened them for the violent attacks which the Attorney-General made upon them. There are few men, however vigorous, who will not be worn out by standing for eight or nine days in the crowded atmosphere of such a Court as the Old Bailey.

The next thing which appeared to me unfair was your permitting the Attorney-General to open to the jury all the facts connected with Bates’s insurance, and this you did after Serjeant Shee objected. It is true that evidence of this negotiation was afterwards excluded as being irrelevant, but why did you not exclude the statement which you must have known beforehand would prejudice the jury against my brother? The simple fact of that affair was that my brother wanted to raise money for Bates, whom he pitied; that this device was resorted to for that purpose, and I am told that not on the turf alone, but in commercial circles, it is a common thing to raise loans upon the deposit of insurance policies. Your lordship, however, allowed the jury to infer that my brother and Cook wanted to insure Bates’s life in order that they might afterwards murder him!

It is a principle of the law that nothing which is said in the absence of a prisoner can be given in evidence against him. But you permitted a conversation between Cook and Fisher to be proved when my brother was not present, and when he could, consequently, have had no means of contradicting Cook’s drunken folly about the “dosing.” In this, I am told by a most accomplished member of the bar, you violated one of the leading rules of evidence--one adapted for the protection of all men, as it is obvious that if private slander be once permitted to be detailed before a jury, the most innocent man living may be hanged on statements made behind his back. In your charge to the jury you seemed conscious of the impropriety you had committed, and you did not read that portion of the evidence to them, but it had already produced a fatal influence on their minds. Yet you would have read it, as I could plainly see, only that Judge Cresswell interposed just as you came to it. What renders this more indefensible is that Serjeant Shee objected to it, but you overruled his objection. (See verbatim report of trial, p. 26.) And the Attorney-General himself refrained from stating it in his opening address, because he said it was not evidence (report, p. 9). Upon its manifest falsehood I need not say a word. It is incredible that Cook should say to Fisher my brother poisoned him, and yet afterwards go to Rugeley with him, dine with him, send for him every hour in the day, entrust him with all his moneys, make no mention of “dosing” to his oldest friend, Dr. Jones, and retain his affectionate faith in William to the last. Yet, not one word of these obvious reflections did you put before the jury to weaken the force of the illegal evidence you allowed to go before them. You only said that it was “mysterious,” whereas, in truth, it was incredible; and you added that “Cook was under the influence of Palmer to a very great degree,” as if he would have continued so after an attempt to kill him. It was very soon apparent that your lordship was resolved not only to admit illegal evidence, but also to allow the prosecuting counsel great liberties in their mode of examination. Serjeant Shee repeatedly called your attention to Mr. James putting “leading questions” to the witnesses, but you overruled him, until he told Mr. Smith that it was quite useless to object any further. I am told that every member of the bar in Court was of opinion that the questions were irregular in the leading shape in which they were put.

In his opening speech the Attorney-General made the following statement to the jury:--“The next morning, at an early hour, Palmer was with him, and from that time, during the whole of Saturday and Sunday, he was constantly in attendance on him. He ordered him some coffee. Coffee was brought up by the chambermaid, Elizabeth Mills. It was taken into the room, given to the prisoner, and she left. Palmer, having received the coffee, gave it to the man, who was in bed, and had, therefore, an opportunity of dealing with it” (report, p. 12). Elizabeth Mills was called to prove this statement. So far from proving that it was given to Palmer, she distinctly swore that she “placed it in Cook’s hands,” so that Palmer had no opportunity of tampering with it (report, p. 33). Yet your lordship, whose duty it was to see that none of these misstatements should be unobserved upon to the jury, did not point out this remarkable discrepancy, nor did you think it incumbent on you to set them right upon a point of such material import to my brother. You allowed them to believe that he had poisoned that coffee when the evidence negatived his dealing with it at all.

In commenting upon the evidence of this woman, Elizabeth Mills, you said that Serjeant Shee had made “a most foul charge against her and Stevens,” representing that she had been bribed, but that you did “not see the smallest pretence for such a suggestion.” I wonder that, after your three score and ten years in this wicked world, you could have been so exceedingly innocent and simple. You come from a country where the inhabitants are keen-sighted enough, yet you thrust yourself forward as the defender of Eliza Mills, a woman upon whose countenance her character was written, and whose whole demeanour flashed conviction to every mind of the sort of person she was. This woman was brought away from Rugeley by Stevens, she was lodged by him at Dolly’s, where she saw him “always” in the sitting-room, that gentleman having called “merely to see how I liked London, and whether I was well in health, and all that, to see whether I liked the place,” though she afterwards added that he called about “sometimes one thing, sometimes another,” and “many more things which I cannot remember. I do not keep things in my head for weeks or months together. I do not pretend to keep in my head what the conversation was,” yet “there were many more things talked about that I do not wish to mention. Perhaps my thoughts were occupied about something else.” And when the same woman is asked to give some account of herself, and her visit to the man Dutton at Hitchingley, and asked to name “who are your friends?” she answers, “I have some friends there.” “Who are they?” says Serjeant Shee, to which Mills answered, “Friends are friends, I suppose,” and then she gave an account that she slept with the mother, and was “engaged to the son,” though what she meant by this she did not venture to explain. Your lordship, however, “saw not the smallest pretence,” &c.

Again, when the deposition of the same woman was read, in which there was no mention of the “twitchings and jerkings,” and all those other horrors which she imparted into her narrative, and which she enforced by so much pantomimic action; and when in the deposition she proved that the “broth was very good,” while in the evidence at the trial she swore that “it poisoned her,” you coolly told the jury that it was “an important omission; but you will say whether that which is stated is not substantially the same as the evidence which she gave on oath when examined before you.” Whereas you ought to have said that they were substantially opposite, the two statements being reconcilable by no manner of even Scotch chicanery. In fact, the manner in which you supported this woman was exactly opposite to that which judges usually do when persons of that description come before them; and I have heard of judges telling juries to place no reliance on witnesses whose conduct and demeanour were every way superior to that of Mills. I can conceive no greater blow to public trial than the support given by a judge to a witness like Mills, but “a fellow feeling makes us wondrous kind,” and you adopted her with all the fervour of a champion of romance. When it was proposed to contradict this woman by Dr. Collier, who was in Court, Judge Alderson said, with unrestrained anger, “It is better Dr. Collier should be absent from the Court. If he is to be examined as to facts, he ought not to be here at all; he is here under the false pretence of being a doctor,” forgetting that Taylor, Rees, and Monkton, who were also to be examined as to facts on behalf of the Crown, were then present, though not, of course, “under the false pretence of being doctors!” The jury very soon saw what the judges thought of the case. Mr. Gardner, the lawyer of Rugeley, was then called to prove that the coroner had not asked several questions of Mills, and that the jurymen had expostulated with him for not doing so. This illegal course you permitted, assigning the following strange reason for it:--“What was said there is part of the transaction of taking the evidence. It cannot be evidence against the prisoner, but it may explain the manner in which the depositions are taken.” It requires no lawyer to tell me that “if it cannot be evidence against the prisoner, then it has no right to go upon your notes, or to be stated in the presence of the jury at all, whom it cannot fail to affect, although they are sworn to decide according to the evidence.” Yet all this you permitted, allowing the Attorney-General to damage the character of the coroner in every way he could; and there is no knowing what you could not have got Gardner to say had not Judge Cresswell interposed and terminated the scene. He said “the depositions which had been put in did not show that any questions had been put by the jurymen. If they had contained such questions they would have shown the motive of the jury in putting them. But the Court was left totally in the dark as to whether questions had been put by the coroner or any other person. For anything that appeared to the contrary, the witnesses might have made a voluntary statement without any questions at all being put to them. No foundation was, therefore, laid for the Attorney-General’s inquiries.” Every one in Court saw how chagrined you were at this interposition of Judge Cresswell, but you were obliged to submit, as Alderson concurred with him. One word with reference to Ward, the coroner. He is a very able lawyer. The jury wanted to put questions as to various rumours about my brother William poisoning Lord George Bentinck, Bladen the brewer, and twenty other people; and as the coroner overruled all such folly, the sapient jurymen did expostulate with him, and this was Gardner’s mare’s nest!

The next witness examined was Mrs. Brooks, and though she gave evidence of the most valuable kind to the prisoner, yet not one syllable of it did you comment upon to the jury. The main evidence against my brother, connected with Shrewsbury, related to the sickness with which Cook was seized. If, therefore, other persons in various parts of the town were similarly affected, it could not fail to benefit William, for he could not be said to have poisoned or “dosed” all the others, especially as he was not at Shrewsbury at all when they were sick, but was at home at Rugeley. Serjeant Shee asked Mrs. Brooks (report, p. 54), “Do you know whether other racing men were taken ill on the Wednesday at Shrewsbury?--There were a great number; one of my company was dreadfully ill, and there was a wonder what could cause it. We made an observation. We thought the water might have been poisoned at Shrewsbury. We were all afflicted in some way by sickness--sick and purged.” After twelve days the jury can be scarcely expected to have remembered this most important admission. It was your incumbent duty to have recalled their attention to it, for it was strongly in my brother’s favour; but, if they recollected it at all, you took care that they should pay no attention to it, for, after reading to them all that she said in her direct examination, you remarked, “This ends the affair about Mr. Cook’s illness at Shrewsbury, and, taken by itself, it really amounts to very little, but, you observe, it is connected with what follows when he returned to Rugeley” (report, p. 311). You then passed on, not saying a word about the incident just mentioned, and, associating in the minds of the jury with subsequent transactions at Rugeley that part of Mrs. Brooks’ evidence which was brought forward for the prosecution, you kept back the most valuable portion of her testimony to my brother, and entirely ignored its existence in the case.

Dr. Jones, of Lutterworth, the friend of Cook, to whom my brother writes, gave evidence of the most valuable kind, showing Cook’s broken constitution, his sores, his syphilis, his secondary symptoms, his unbounded confidence in William, and William’s brotherly kindness to him, yet not one word of comment did you offer to the jury upon these matters. The only remark you made was one highly damaging to my brother, and was as follows:--“At first sight it would appear very much to be in his favour that he sends for a medical man, who is a friend of Cook’s, and who took a lively interest in him, and wished him well. But, at the same time, there are circumstances in this case that may enable you to draw a different conclusion, but I will not suggest” (report, p. 312). No, you did not suggest in words, but, pausing here, you looked at the jury and shook your head at them for half a minute in the most mysterious manner, so that they must have been the dullest of all mankind if they had not perfectly well known what you meant. I have heard more than one person remark upon the Scotch subtlety of this mode of proceeding. Your lordship is a sort of biographer of the Chief Justices of England, though I am told that the unfortunate Dr. Giles, whom you had the pleasure of sentencing at Oxford to twelve months’ imprisonment, is the real author of that production; and I suppose you hope to figure one day in the literary gallery with those whom you have commemorated. It would be impossible, perhaps, for a future historian who merely read your proceedings in my brother’s trial, to form an accurate notion of your demeanour; but, with the light which this letter will throw upon the transaction, such an annalist--if ever you should be thought worthy of notice--will be able to inform future times how you managed to convince a jury without leaving any trace behind of the means by which you did it.

The next witness of any consequence was Newton; and here I should have thought your lordship’s feelings as a man, if they had not entirely perished, would have exhibited some trace of natural passion. Newton, according to his own account, was an accessory to the murder, and the murderer after the fact; he knew the current gossip of Rugeley and Stafford, that Cook had been poisoned by my brother; he assisted at the post-mortem examinations for the purpose of detecting the poison which the murderer had used; he had an interview on the Sunday after Cook’s death with William, in which this skilful poisoner (whose chemical knowledge of the minimum dose of strychnia which destroys life, and of the hitherto unknown fact that antimony neutralises the discovery of strychnia, places him a hundred years in advance of all the chemists of the age), asks the ignorant shopboy of the nature and the effects of strychnia! And when the learned Newton gives him information on the matter, the poisoner snaps his fingers in joy and exclaims, “That will do”; and after that he goes with him to the post-mortem examination; and after that Newton swears against him at the inquest; and after that he keeps the deadly secret buried in his bosom from November until the middle of the month of May, just one day before the trial! And after the trial he communicates the further fact to the Attorney-General that it was he who made up the deadly pills for my brother on the Monday night. With reference to the credibility of this monstrous witness you have not one word to say, though you did not hesitate to stigmatise Mr. Nunneley and Dr. M‘Donald as persons on whom the jury could place no reliance; and in the course of their cross-examination you looked at them in a manner significant of total incredulity of their testimony. Observe the mode in which you support Newton. You say, “There is no contradiction of anything that he has said.” Why did you not tell the jury that, as he fixed no time or place when any one but the prisoner himself, whose mouth was sealed, was by, it was impossible he could be contradicted? You go on (report, p. 313)--“Well, then, you are to consider what is the probability of his inventing this wicked and most abominable lie? He had no ill-will towards the prisoner at the bar.” (Who told you that? Who proved it? What right had you to assume it? What right had you to tell it to the jury?) “He had nothing to gain by injuring him much less by saying anything to affect his life.” (I ask again who told you all this, and on what pretence did you venture to say so to the jury?) “I see no motive that Mr. Newton could have for inventing a lie to take away the life of another person.” (Are you omniscient, then, and do you profess to read that inscrutable mystery, the human heart, and have you not read in the annals of crime of innumerable murders and perjuries committed without apparent motive?) “No inducement could be held out to him by the Crown; he says himself that no inducement was held out to him, and that he at last disclosed it from a sense of justice.” (As if a man who screened a murderer for six months could have any sense of justice.) “If you believe him, certainly the evidence is very strong against the prisoner at the bar.” Not a word of caution is here given; not one Scotch hint of doubt in this witness. Your “canny” countrymen are not always so credulous; they are not at all times so easy of belief in persons of this description. Yet your milk of human kindness is so pure that you cannot for your life imagine the least reason why Newton should not be believed.

But it was on the evidence of Roberts that your lordship used observations which had the most powerful effect on the jury, and since then upon the public mind. I have already explained how it was that the prisoner, even if he were a guilty man, might have denied the purchase of the strychnia from Roberts, as he always denied its purchase from Newton, was deprived by artifice of the witness Cockayne, who could have thrown a new light upon this affair, and I have shown how Bates prevaricated with reference to the dogs and the brood mares. My brother being in this way at the mercy of Bates, and juggled out of Cockayne, in what possible way could he account for the disposal of the strychnia? Yet you, who knew all this a thousand times better than the jury, told them that “a very serious case is adduced, supposing you should come to the conclusion that the symptoms of Mr. Cook were consistent with that of poison. If you think the symptoms are accounted for by merely ordinary tetanus, of course the fact of strychnia being obtained by the prisoner at the bar is of very little weight; but, if you should come to the conclusion that the symptoms which Mr. Cook exhibited on the Monday night and Tuesday night are consistent with strychnia, then a fearful case is made out against him.” The learned counsel did not favour us with the theory which he had formed in his own mind respecting that strychnia, and how he considered it to be consistent with the view that he suggested. There is no evidence of the intention with which it was purchased. There is no evidence how it was applied, and what became of it, or what was done with it (report, p. 313). What modern judge before yourself in a case of death ever ventured to tell a jury that “a fearful crime was made out against the prisoner”? Scraggs or Belknap might have done it; Jeffreys might not have blushed to use the words, but that they should now be used in the face of an open Court, and with a pantomimic gesture and grim stare at the jury such as you gave, are facts discreditable to any law. By what right, with what face, on what authority did you venture to tell the jury that his “learned counsel” was bound to prove his innocence or to account for his possession or disposal of the strychnia? I have always understood it to be the law that every man was presumed to be innocent until he was proved to be guilty; but you have reversed this majestic, merciful principle, and intimate that every man is guilty until his counsel proves him to be innocent. A more shameful perversion of the law than this, I am told by persons in authority, has never been witnessed. Well also did you know that Serjeant Shee was not entitled to put forward to the jury “the theory which he had formed in his own mind respecting the strychnia.” Had he ventured to do so I have no doubt you would have interrupted him with unfeeling harshness, and repeated to him in even stronger language than you did that species of insult “that a witness had no more right to make himself an advocate than an advocate to make himself a witness.” And then you glaringly tell the jury that there has been no “evidence of the intention,” as if you did not well know that if such evidence were possible to be given it could only be given by my brother William himself (who, by law, could not speak); and that, even if he could speak and was about to mention his intention, you would have stopped him, and said that such evidence was illegal, facts, not intentions, being the only admissible evidence in a Court of law. Yet you gravely complain as if the thing might have been done, and the jury, who probably believed you, convicted my brother because he could not prove an impossibility.

My lord, if our present system of representation were anything but a mockery, and if the House of Commons were constituted as it was in the days of Pym, Vane, and Hampden, I verily believe you would be impeached for such a charge as this, for you stated to the jury that the prisoner was guilty because he did not do that which you absolutely knew he could not do, namely, prove his intention. But, under the present system of things, judges may do anything they please with impunity, and no one calls attention to it, because the wretches whom they hang or exile are friendless outcasts, deprived of all sympathy from the world, enemies often of society, which thus becomes their enemy; and the great body of the community not being acquainted with the law, and the only persons who are, namely, the bar, being a body of degraded, crawling, sneaking slaves and sycophants who do not venture to arraign a judge, because if they do they fear that attorneys will desert them; in this way the most frightful licentiousness of power is given to men like you, and they are as despotic as the Cadis in the remotest part of Turkey. In civil cases, indeed, there is a check upon them, because there the parties are rich, and there is an opportunity for a new trial, but in criminal cases there is no new trial, even in the most scandalous and infamous conduct of the judge; and the consequence is that a wicked man may commit almost any conceivable crime upon the bench, and gratify his love of blood to the utmost without restraint or fear, than which I can conceive no more shocking infamy to exist.

Next, as to the evidence of Mr. Stevens, you made it a rule all through violently to censure Serjeant Shee whenever he said anything against the witnesses for the Crown, but not one syllable did you say against the Attorney-General for his attack on the medical witnesses for my brother. Thus you say here (report, p. 313)--“The learned counsel in the discharge of his duty did, as he was perfectly justified in doing, make very violent attacks upon the character and conduct of Mr. Stevens. It rests with you to say whether that attack was well founded.” But had you not said that he was justified in doing so, and did not this imply that Stevens deserved it? And if it “rested with the jury,” what right had you to add, “I own I can see nothing in Mr. Stevens in the slightest degree calling for it”? Thus you first say Serjeant Shee was “justified,” then you say it “rests with the jury,” and then, lest they may jointly agree with the serjeant, you volunteer your own opinion, that Serjeant Shee was not justified. Conduct like this requires no comment, but if my brother is hanged upon such a charge, who is guilty of his blood?

The next witness was Mary Keeling. She gave important evidence as to the condition of the body. Mills and one or two other of the witnesses had endeavoured to show that the body was “bent like a bow,” to use the imaginative language of that man Taylor, and this was pressed in to support your view of the case that “the death was consistent with strychnia.” Now, Mary Keeling proved the exact reverse of this, but you did not either take it in your notes or read it to the jury. Serjeant Shee was obliged to interrupt you. I copy from the report, p. 313--

“Mr. Serjeant Shee--I am not quite sure whether your lordship read
that the witness said that the body was lying straight on the back
on the bed?

“Lord Campbell--I have read all that I have taken down. Is it in
the cross-examination?

“Mr. Serjeant Shee--No, in the examination in chief. ‘How was the
body lying?--On the back, straight down on the bed.’

“Mr. James--Where do you read that from?

“Mr. Serjeant Shee--It is in two reports; one in the _Times_ and
one from the shorthand writer’s notes.

“Lord Campbell--Bamford says it was lying straight on the bed.

“Mr. Serjeant Shee--I did not allude to Bamford’s examination. This
witness says so too.”

And there the matter ended, and though it was admitted that it had been said, and though it corroborated Dr. Bamford and Dr. Jones, and entirely refuted the “opisthotonos” theory of Taylor and Mills, and thus got rid of one of the most remarkable symptoms “consistent with poisoning by strychnia,” yet not one word of comment did you offer upon it; but, as you said, it was not upon your notes--where it ought to have been--you left the jury unadvised upon this essential contradiction, which, taken with the evidence of the two medical men, entirely demolished Mills and her congenial companion Taylor, and took out of the mouth of Sir Benjamin Brodie and the other medical witnesses one of those vital symptoms on which they founded their diagnosis of the causes of death. For, if there was no opisthotonos, or bent bow-like shape, then Cook did not die of strychnia; and this being proved not to have been so by these three witnesses, or, at all events, left in deep doubt, my brother was entitled to the benefit of that doubt, and should have been acquitted.

The same wish of omission was manifest in your notes when you read out the evidence of Devonshire to the jury; you forgot to tell the jury that Cook’s left lung was diseased, which was important, as his death arose from natural causes. Serjeant Shee was again obliged to interfere (report, p. 314)--

“Mr. Serjeant Shee--I think the witness said there were traces of
emphysema in the left lung?

“Mr. Baron Alderson--Yes.”

But not one word of comment did you make.

Myatt, the postboy, whose testimony was wholly incredible, you bolstered up with this remark, “Now, there seems no reason to doubt the evidence of this poor boy.” As if you could fathom the secret motives of man.

Upon the letter which my brother addressed to the coroner you say--“This letter is a most improper letter, addressed by the prisoner to Mr. Ward, the coroner, who is, of course, a judge. It so happens that I myself am the chief coroner of England, but all the coroners are judges as much as I am, and ought, with equal integrity and indifference, to administer the law of the country.” This self praise, my lord, is of that species which is said to stink. It would have been better if you had not eulogised your conduct upon this trial, but allowed others to do so. You did the same thing when you were sentencing my brother, for you prefaced your “hanging speech” by these words--“William Palmer, after a fair and impartial trial,” &c., &c. You then go on, and suggest to the jury that my brother was guilty because he wrote that letter. “You will say whether this is consistent with innocence; it is clear tampering with the judge.” Yet the conduct of the gentleman mentioned by Sir Matthew Hale, or the French gentleman who offered to surrender his wife’s will, was just as suspicious, though the first was hanged innocently, and the last, fortunately for himself, not tried by you.

When Cheshire was cross-examined by Serjeant Shee he asked him, “Did he not say I knew they would not, for I am as innocent as a baby?” You immediately interrupted, in a most angry tone, saying, “He has already said that,” whereas in truth he had not done so, but the phrase was likely to have an influence on the jury.

Again, when Herring was examined, and Mr. Welsby proposed to give some evidence from the pages of the lost betting book, about whose disappearance one of the greatest points was made against William, Serjeant Shee said, “We cannot have the contents.”

“Lord Campbell--The last account we have got is that it was in Mr.
Palmer’s possession.

“Mr. Serjeant Shee--I do not think there is any proof of its ever
having been in Mr. Palmer’s possession.

“Mr. Attorney-General--We show that it was in the dead man’s room
on the Tuesday night before his death, and Mr. Palmer is afterwards
seen looking about; we have no one else, my lord, that we can
resort to.” ... (This was utterly false, for the last person who
saw it, or swore she saw it, was Mills, and that was on Monday
night.)

“Lord Campbell--I do not think we can receive this evidence”
(report, p. 41).

Thus you were about to admit the contents of that book on the plea that my brother possessed it, a plea entirely untrue, and not only not supported, but even negatived by the evidence. My lord, if you do these things in matters of life and death, who among us is safe?

When Bates was called, it was proposed to give in evidence the facts of the insurance, and you permitted a discussion to arise which put the jury in possession of all the facts. You then said, “On the Attorney-General’s opening I doubted whether this would be relevant and proper evidence to be received at this trial” (yet you permitted him to open it!), “and upon consideration my brothers agree with me it is too remote to be admissible.” But all the evil had then been done, the jury having been prejudiced by the statement and discussion. And not one word did you say to them in your charge about disabusing their minds of the false impression which it might have made.

When you commented on the medical evidence you told the jury that my brother had an opportunity of substituting for Bamford’s pills others made by himself. What right had you to do that? Was it not leading their minds to an inference that he did so, and that the substituted pills contained poison? (report, p. 315).

You introduced Sir Benjamin Brodie with great praises; in fact, you praised all the medical witnesses for the Crown, and confined your applause to only one of those for the prisoner, who slightly coincided with Taylor’s notions. You said of Sir Benjamin--“You will take into consideration the solemn opinion of this distinguished medical man, that he never knew a case in which the symptoms that he heard described arose from any disease. He has seen and known the various diseases that afflict the human frame in all their multiplicity, and he knows of no natural disease such as will answer the symptoms which he heard described in the case of Cook; and if it did not arise from natural disease, then the inference is that it arose from other causes” (report, p. 316). Now, Sir Benjamin formed his opinion upon two inconsistent statements made by Mills and Dr. Jones. If what Mills swore was all true, then, perhaps, Sir Benjamin Brodie would have been justified in saying that no disease that he had seen accorded with that description; but if what Mills swore was all false, and it was entirely inconsistent with what Dr. Jones proved, then also it would not be consistent with natural disease, or with anything in Nature, and yet my brother be innocent of this crime. If Mills invented a number of symptoms which no medical man had ever seen, and it is what an ignorant chambermaid who was disposed to perjure herself might be supposed to do, then what Sir Benjamin Brodie proved would have been correct, and he could not assign to any natural disease that which was, in truth, but a fictitious narrative; but it would not necessarily follow from that that Cook died of poison, as you told the jury it would, but it would as logically follow that the whole of the symptoms not being in accordance with any known disease were invented by an unskilful person, and unskilfully put together for the occasion. I think you saw in its full force the effect of this, for it will be seen by the report that you prevented Serjeant Shee from discovering on which of these two witnesses Sir Benjamin relied in premising his opinion.

“Considering how rarely tetanus is witnessed at all, would you
think that the description of a chambermaid, and of a provincial
medical man who had only seen one case of tetanus, could be relied
upon by you to state what description of disease the disease
observed was?--I must say I thought the description very clearly
given.” (How could it be given clearly if it accorded with no known
disease? Besides, the answer is an evasion of the question.)

“Mr. Serjeant Shee--On which of the two would you rely, supposing
they differed--the chambermaid or the medical man?

“Lord Campbell--That is hardly a proper question” (report, p. 120).

In my judgment no question could be more proper, for if Sir
Benjamin relied on Mills, then the jury would have known why he
pronounced so strong an opinion, and if they disliked her, the
opinion would go for nothing; but if Sir Benjamin relied on Dr.
Jones, then the symptoms described by him were accordant with many
known diseases, and Sir Benjamin Brodie must have said so. This
ruling therefore hanged my brother!