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(He punishment of death for offences no longer capital, would have con

tinued but for the indisposition of juries to convict: they refused to be

made the ministers of a vindictive and sanguinary law. many perplexing cases have come before the criminal courts, placing the jury as well as the judge, in an extremely painful position. The difficulties of conscientious men who have to pronounce a verdict on which the life of a fellow creature depends, are always great, and it is not wise to exact from juries the discharge of duties which shock their better feelings; since the consequence must be, that the innocent will sometimes suffer, and the guilty as often escape.

One of the strongest objections to capital punishments is founded on the fallibility of human tribunals, the danger of condemning the innocent. If a man be placed in solitary confinement, or transported to the penal settlements, and afterwards proved to be innocent of the offence for wbich he was convicted, some atonement can be made for the injury done to him. He can be restored to his family and to the society from which he has been severed, and may participate in the satisfaction felt by his friends, that his reputation has been cleared in the eyes of the world. But when life is once taken, --when the grave has closed over him—(and in such case the punishment does not fall alone, nor the most heavily upon him, but upon those of his kindred who stand suffering and shuddering upon the brink,)—the portals of death cannot be re-opened, no earthly voice can command the injured to step forth. This is a solemn consideration, rendered weighty by the number of authenticated instances of innocent persons who have suffered the last penalty of the law. Sir Fitzroy Kelly stated in 1841, that in the preceding fifty-eight years no less than forty-seven persons had been executed whose innocence had been subsequently established; and it was computed by Lord Nugent, that in the present century no less than forty innocent persons had been executed. Mr. Baron Parke related an instance where five innocent persons had been saved by a mere accident. Several cases have been given in detail in the periodical literature of the day. It may

be supposed that such mistakes have occurred under circumstances of haste and hurry, (it makes the blood run cold when we read of the despatch


which once characterized the proceedings at the old Bailey session-house, the trials occupying on the average only eight minutes and a half,) and that the calm and cool manner of conducting judicial proceedings now renders such mistakes impossible. There is no wish to deny that the Criminal Courts are managed with much greater circumspection than at the period referred to, and that the chances of convicting an innocent person are considerably reduced. But while human judgment remains fallible, mistakes of this nature must occur. Indeed convictions have taken place where every care was observed to sift the evidence and to put a liberal construction on the suspicious circumstances,-convictions that have sometimes been fully approved by the world at large.--and yet, after the sentence has been carried into effect, the perfect innocence of the condemned has been established. An instance occurred at the last Spring Assizes. On the 29th of December 1849, a girl of the name of Mary Ann Bennett preferred a charge of rape against two young men the name of Shadrach Lewis and Isaac Hopkins, upon which they were convicted and sentenced to transportation for life. The sentence, in this case, did not give satisfaction in the neighbourkood where the parties resided,-enquiries were instituted, and the girl was indicted for perjury and committed to prison. She was tried on the 10th April, 1851, at Gloucester, before Mr. Justice Talfourd. It was proved that she had offered to contradict at the trial, the evidence given on her first examination, on condition that Lewis's father and Hopkin's mother would give her £5 each, — that she had declared, after the men were put in prison, that she liked Lewis very well, and that she would not have made any charge against him had she not been overpersuaded, and it was from the prison that she had employed a man of the name of Williams to address a letter to Lewis as she said at the time, to comfort him a little. It was stated that additional evidence could be supplied of statements made by her to various persons which would completely exonerate Lewis and Hopkins from the charge. A strong conviction prevailed of their innocence, and she was convicted of perjury. Whether they are cleared from the charge or not, one thing is certain, that the men have been condemned


the oath of a woman who is now convicted of perjury relating to the material parts of that very evidence on whieh they were found guilty. Twenty years ago these men would have been executed, and no proof of the prosecutor's wickedness, nor of their own innocence, could have availed them. They have since obtained a free pardon.

The case of the Frimley murderers is one of no mean importance in a discussion on the law of evidence. It will be recollected that Levi Harwood and Samuel Jones were believed by the Jury to be innocent of the murder, and on the ground of a strong conviction that Hiram Smith, the approver, fired the fatal shot, they petitioned the crown for a reprieve. The confession of Jones shows that the general impression was a mistaken one, and that Levi Harwood fired the pistol that deprived Mr. Hollest of life. Even Mrs. Hollest was mistaken in one or two not unimportant particulars. She swore positively to a copper Token found

upon the prisoner Jones. This formed a material point in the evidence, yet the confession of Jones states that he obtained it in change at a


public house on paying for a pot of beer some days after the robbery and murder had been committed. These men were guilty, as their own confession proves, but how many innocent men have fallen victims to such mistakes !

A still more extraordinary case is that of Mr. Barber, who was tried and condemned for forgery in 1844, sentenced to transportation, and, after the sentence had been carried out, recalled on her Majesty's pardon having been extended to him. It appears that a large amount of dividends and principal stock remains unclaimed at the Bank of England. After remaining a number of years it is carried over to the credit of the national debt. Mr. Fletcher, a gentleman of apparent wealth and respectability residing at Camberwell, was made aware of this fact, and resolved to turn the knowlege to account. He was kept informed by Mr. Christmas, who was engaged in the Bank and had risen thrö various gradations from the office of inspector to one of considerable trust, of several important particulars in relation to the unclaimed stock and dividends. Mr. Christmas was paid liberally for the information, but the Bank directors acquitted him of all guilty knowlege of the frauds practised by Mr. Fletcher. On receiving the required information Mr. Fletcher proceeded to institute enquiries for the real owners of the stock. If he found them, his next step was to ascertain if they were aware of the stock standing in their name, and if so he made his terms with them for the information he was able to supply. Where the owner was found to be in total ignorance, or could not be found at all, Fletcher proceeded to get some one to personate that person, and to dress up a story to suit the circumstances. This involved both fraud and forgery, and during the last five of the fifteen years that he pursued this systematic plan of villainy, he was concerned in no less than four forgeries, and had substantiated five genuine claims. Mr. Barber was first employed by him as Solicitor on general business, and, twelve months after their first connexion, was instructed to obtain letters of administration for a party introduced to bim as the rightful owner of some unclaimed stock. After this Mr. Barber did all Mr. Fletcher's business. It was done in the same way as other business of the office, and the charges regularly entered in the books. The artfully prepared scheme was at length discovered. That Mr. Barber was the dupe of Fletcher now admits of no reasonable doubt. Mr. Barber was supposed to have been acting with guilty knowlege of the fraud. He was tried upon nine counts, one of which broke down from a trivial but remarkable circumstance.

Unclaimed stock stood at the Bank in the name of John Stewart to the amount of £1200. Mr. Fletcher represented that Mr. Stewart had died intestate, and he induced one of his female accomplices to personate Miss Stewart, who was entitled to the administration. The deceased had died at Great Marlow, and Fletcher had gone there to make enquiries in the month of May, 1840. Mr. Barber received instructions from him to prosecute further enquiries five months after this. Fletcher had gone in May, and Barber had gone in the following October.

It was attempted to be shown by the prosecution that Mr. Barber had

gone to Great Marlow within a fortnight of the time that Fletcher had been there. This made out a strong case, as it would prove enquiries to have been

This was

made by Barber before the forged bond had been executed, and justify a suspi.. cion of privity to the concoction of the fraud. Mr. Hyatt, the landlord of the Inn at which he stayed and conducted his enquiries, swore stoutly that Mr. Barber had been at his house in May or early in June, and at no other time, and that would be within a fortnight of the time of Mr. Fletcher's visit. of course a vital point. The remainder must be told in the words of Sir George Stephens, from whose elaborate statement of the whole case our account is abridged.

“Happily he had in Baron Gurney the most keen sighted judge that ever adorned the bench, and in Mr. Wilkins one of the ablest counsel that ever addressed it. More happily still, he had on principle retained every scrap of paper connected with his professional duties; nor did he lose his presence of mind, sustained as it was by conscious innocence, even amidst the breathless and awful anxiety for him shared perhaps by the prosecutors themselves when this astounding evidence came out.

Mr. Barber's Tavern Bill was put in, the date folded down, and it was handed to the witness.

Is that your Bill ?

It is: it is in my handwriting; the charges are correct; one of them is for the hire of a horse to the railway station five miles distant.

Did Mr. Barber ever visit you more than once ?
Are you quite sure that Mr. Barber's visit was within a fortnight after Mr. Fletcher's ?
Yes, of that I am quite certain.
And that he was never in your house but once, and that once not in October.
I am positive of that.
Then now look at the date of that bill in your own handwriting.
It was dated the 13th October, 1840.

It makes the blood frecze to think on what petty circumstances a man's life depends before a jury; but for the preservation of the tavern bill Mr. Barber's inevitable fate, only a few years since, would have been a public and ignominious death."

On another part of the Indictment Mr. Barber was convicted, but as it since turns out, on most unsatisfactory evidence. In this case the prisoner was a solicitor; he had able counsel, and a humane and discerning judge,—and yet he was convicted. The arts of Fletcher had drawn such a web of suspicion about him, that, with all these advantages, he was unable to extricate himself. How must the difficulties increase when a prisoner is ignorant of all legal forms and technicalities, without friends, and withal so very poor that he can neither fee counsel nor pay the expenses of witnesses. It is impossible to go over the case of William Ross who was executed at York, without feeling that had he possessed the advantages of Mr. Barber, he must have been acquitted. It is not necessary to dwell on his fate, as perhaps his innocence may never be completely proved, but it is clear that he was condemned upon the evidence of persons who had manifested strong feelings of malice against him, and whose character in any civil case would have destroyed the credibility of their testimony. No proof can now avail bim.


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