HC Deb 02 July 1844 vol 76 cc201-11
Mr. Wallace

rose to move, pursuant to notice, That an humble Address be presented to Her Majesty, praying Her Majesty will be graciously pleased to appoint a Commission to inquire into the conduct of the Judges who presided at the Assizes held in the city of Glasgow, in the month of May last, and especially into the circumstances attending the trial of Alexander Walker, accused of an assault with intent to ravish a girl of tender age, named Grace Macfarlane. He regretted that he felt it his duty to bring forward this subject, for it was one which referred to the misconduct of one of the highest criminal judges of Scotland. He had not come to that determination until he had well considered the course which he was about to pursue, and until he found his own view confirmed by a great many persons in his own part of the country. At the late assizes held at Glasgow, a person was tried for assaulting a young girl, who was not thirteen years of age, with intent to violate her person. In Scotland they had a public functionary who was now in that House, namely—the Lord Advocate, whose special duty it was to be public prosecutor in all cases of criminal delinquency. That individual, either in his person or in the person of his representatives, was in fact the grand jury of Scotland, and it depended entirely upon the manner in which cases were brought before him or his representatives, whether or not any particular case should come before the Criminal Court. Previous to the trial of any criminal in Scotland the evidence against him was first taken before the local court, which was called the Sheriff's Court. It was then transmitted to the Lord Advocate, and after being sifted by him, or his deputies, it was decided whether or not the case should be brought on for trial. Such were the stringent measures taken to purge and purify the evidence before any criminal was brought up for trial. The Judges also were appealed to by the counsel on both sides as to the relevancy of the indictment, and after it had been decided that it was relevant, the Judge had no further right to interfere with the trial. Now, he had to complain of a most unprecedented and extraordinary interference on the part of the Judge in the present case and he had to ask the House of Commons to institute an inquiry into these singular proceedings. In the case to which he had to call the attention of the House, the Lord Justice Clerk and Lord Wood were the presiding Judges. It was a regulation in Scotland that trials for rape should be tried with closed doors, and in this case that regulation was complied with. The oath administered to juries in Scotland was of the most solemn character. He admitted, that the usual forms were observed, and that the jury were chosen in the usual manner. The jury proceeded to the trial of Alexander Walker, for the assault on the girl, and Lord Wood was the presiding Judge, when the case was in so extraordinary a manner broken in upon. In order to put the House in possession of the most accurate information he had been able to obtain upon the subject, he should read to them a letter he had received from one of the ten jurymen who had protested against the course which the proceedings had taken on the occasion. The hon. Gentleman then read the letter as follows:—

"Statement of facts from one of the ten protesting Jurymen.

"Glasgow, June 25, 1844.

"Sir,—As foreman of the jury sworn to try 'Alexander Walker, for an assault with intent to ravish,' at the last assizes held here, and as one of the ten jurors then impannelled who subscribed a protest against the verdict recorded in the books of the Court as the verdict of the jury, I send to you, Sir, to be used as you shall think best, the following facts. The circumstance of a verdict being ascribed to my brethren and myself which every one of us most indignantly repudiated, and the very contrary of which, so far as I know, we were prepared to return as the result of our deliberate judgment, grounded on the evidence, and the way in which it was given, is the sole reason for this statement.

"One of the jurors lost no time after the jury left their official seats in getting the protest drawn up and subscribed by as many of his brethren as he could conveniently get hold of at the time, and placed it in the hands of the clerk of the Court as the proper depositary.

"The Judges present on the occasion were the Hon. the Lord Justice Clerk and Lord Wood, the latter of whom was the presiding Judge in Walker's case. The usual preliminaries were gone through—the panel pleaded not guilty—and the case went to trial. The first witness examined was the little girl Grace Macfarlane, who was alleged to have been the victim of Walker's brutality. Her testimony was elicited at great length, and was given with such artless simplicity as to carry conviction to the minds of the jury that she spoke the truth and nothing but the truth. The next witness was the woman in whose house the little girl resided, and who had taken charge of her for several years. Her evidence was in every respect corroborative of the preceding deponent. The next witness was a neighbour of Walker's, and the impression made on the jury by her testimony and appearance was, that she did not wish to say anything conclusive on the matter.

"At this stage of the trial the Lord Justice Clerk interrupted the proceedings—held conversation with the Advocate Depute with a view to the abandonment of the case, on the assumption that the jury would not believe the testimony of the little girl, and that the proof, irrespective of her evidence, was insufficient. The Advocate Depute was desirous to go on with the case; said he had other witnesses to produce, as also the medical gentleman who had inspected the girl after the assault upon her person. The medical gentleman, however, was the only other witness who was put into the box, as at the close of his examination, the Lord Justice Clerk again interfered with the Advocate Depute as before. While this was going on, Lord Wood, the presiding Judge, said to the jury, that they had better consult together, and if they wished any more evidence in the case, to say so. Having ascertained the general mind of the jury, and observing that the Lord Justice Clerk still pressed the Advocate Depute, I, as foreman, addressed his Lordship and said,—'My Lord, the jury have considerable doubts as to the innocence of the prisoner.' To which his Lordship (the Lord Justice Clerk) replied—'Is that merely your opinion, or is it founded upon the evidence?' When I immediately rejoined, 'By the evidence certainly our minds have been influenced;' and almost forthwith his Lordship, and not Lord Wood, the presiding Judge, announced that the case was given up by the Advocate Depute. Nothing passed subsequently between the Judges and the jury, but by-and-by the clerk of the Court stood up and read from his Book of Records—'That in the case of Alexander Walker the jury had returned a verdict of 'Not Guilty,' and the said panel is forthwith dismissed from the bar.' The protest was subsequently signed by ten of the jurymen, under a strong feeling that in their persons the province and prerogatives of a British jury had been usurped, that the ends of justice had been defeated by this case having been taken out of their hands, and that a verdict was recorded as theirs which they never sanctioned; and, further, that they could not consistently with their oaths, their consciences, and their sense of public duty, be passive in the matter.

"I am, Sir, your obedient servant,

(Signed) "GEORGE HODGES."

He had reason to believe that the Return which had been furnished to the House was in many respects inaccurate; and he had received a letter from the editor of the Glasgow Argus, dated June 24, which led him to that conclusion. He had sent a printed copy of the Return made to that House to each of the jurymen who had signed the Protest, and had received communications from many of them. One of these communications was to this effect:—

"25th June, 1844.

"Sir,—As the individual who handed in the protest to the clerk of the Circuit Court, and forming one of the impannelled jury on the case of Alexander Walker, accused of assault with intent to ravish, I beg leave to submit the following statement of facts as they came under my notice pending the trial.

"Having been ballotted for and duly sworn upon the case of the said Alexander Walker, I took my seat, the trial being conducted by Lord Wood, Mr. David Muir, Advocate Depute, &c., when just as the trial had commenced I observed the hon. the Lord Justice Clerk withdraw from his seat, i. e., his usual seat at the bench, and retire a little behind it. Having seated himself, he lifted up a roll of papers, and proceeded to examine them minutely. I readily perceived the roll of papers to be the plans, &c., for the alterations and additions to the old court houses. To these he gave much attention during the greater part of the trial, and more particularly in the examination of the first or principal witnesses,—viz., the victim herself. It was during the deliverance of the latter part of the second or the beginning of the third witness's deposition, that Lord Wood addressed the jury, to the effect that if they (the jury) were not satisfied with the evidence already led, or rather if they wished additional evidence in the case, to say whether such were necessary, if not, they were to hand in their opinion, or the result of their consultation. Scarcely four minutes had elapsed after the above intimation had been given by Lord Wood to the jury, when the Lord Justice Clerk rose hurriedly from his seat, and accosted the Depute Advocate (Mr. Muir) sharply, and said something about withdrawing the case, which Mr. Muir in the most marked manner hesitated to do, suggesting to the Lord Justice Clerk that the better way would be to bring forward additional witnesses, and allow the jury to determine for themselves—for, added he, I have one or two important witnesses whose testimony might be of much service to the jury. Now, this was most distinctly spoken out and heard by me. At this stage of the proceedings the Lord Justice Clerk again said something about withdrawing the case, but my attention being called away by the jury communing among themselves, I did not hear what he then said. It was at this juncture the foreman of the jury, Mr. Hodges, stood up and said—'My lord, the jury have considerable doubts as to the prisoner's innocence.' The Lord Justice Clerk immediately rejoined—'How so! have you formed that opinion from the evidence,' &c. Mr. Hodges at once replied that their (the jury's) minds were naturally influenced by the evidence submitted to them, or nearly in those words. The Lord Justice Clerk then turned to Mr. Muir, when a rambling conversation or explanation of the case took place. The latter gentleman seemed to me to be so browbeaten by the unyielding manner of the Lord Justice Clerk, that he said—Well, if your Lordship insists, I will offer no objections, or no further objections, or words of a similar import. The trial was then dropped, and alleged to be withdrawn; the clerk proceeded to read aloud a statement in the usual form, &c., recording a verdict of 'Not guilty' for the prisoner, as being that of the jury's. Now, sir, the jury never returned any such verdict as 'No guilty;' on the contrary, they gave utterance to their verdict, such like as it was, through Mr. Hodges, and confirmed it in the protest, signed by ten of their number on the very day the trial took place. By that document, sir, they have relieved their consciences from a 'verdict' recorded as theirs, and acquitted themselves before their fellow-countrymen of having participated in the verdict of 'Not guilty' recorded for the prisoner, and as minuted in the books of that Circuit Court.

"Such, sir, are the facts of the case so far as my recollection carries me; and, in conclusion, I may add, that you are at liberty to make use of this letter as to you seems best, as I place no restraint upon your will in the matter.

"I have the honour to be, Sir,

"Your most obedient servant,

(Signed) "JOHN F. ROEHEAD, Architect."

"27 th June, 1844.

"I concur in the above statememt.

"JOHN MANIE."

"27th June, 1844.

"The above is a correct statement to the best of my recollection.

"PETER, MAC LELLAN."

"28th June, 1844.

"The above statement is correct in every particular.

"A. G. LINDSAY."

Mr. Muir was a man of rising talent, and his character stood as high as that of any member of the Scottish bar. There was not one of that fraternity who was a more perfect gentleman; and he submitted that no counsel ought to be so browbeaten and insulted as this gentleman had been by the Lord Justice Clerk. He knew the Lord Justice Clerk to be a protégé of the right hon. Baronet's, and to have been pitchforked by him over the heads of many who were his undoubted superiors. He would not say a single word about the other judges; they stood on the records of this country as able deserving men; but the conduct of the Lord Justice Clerk was most disreputable, most insufferable, and of the most unprovoked kind to be met with in the annals of Scottish jurisprudence. He asked the Lord Advocate if he ever knew of such a protest? The protest had been lost, it was said; but he did not believe a word of it. He believed that the Lord Justice Clerk tore it up on the bench. He called upon the hon. and learned Lord Advocate to state whether Lord Wood did not put it into the Lord Justice Clerk's hand, and whether that judge did not tear it up in one of those fits of rage to which he was accustomed to give way? Should the House refuse to grant an inquiry into this disgraceful conduct on the part of one of the judges, he would then feel himself at liberty to make use of it, and he would venture to say that no man could fail to be convinced from that testimony that a most brutal assault had been committed on the child. He had never heard of such impertinence as had been exhibited by the Lord Justice Clerk on that occasion, and if an inquiry were allowed he would prove the truth of these statements by the testimony of judges, counsel, magistrates, jurymen, and spectators of the Court of Assize. The Lord Justice Clerk had interfered in a manner which he dared not to have done if the Lord Advocate had been present. The office of Lord Advocate was paramount to all others. No man could define the bounds of his jurisdiction, and no judge would dare to interfere with his conduct in the prosecution. He was the public prosecutor. It would be well if such an office existed in England. It was an office of the greatest benefit to Scotland; and if that office were degraded the people of Scotland would know that it had been so degraded by the present Government, and by the hon. and learned Gentleman who now filled that high and important office.

The Lord Advocate

would only state such circumstances as he thought would constitute grounds for resisting his Motion. The hon. Member had alluded to the nature, the powers, and the duties attaching to the office he had the honour of holding; he was fully sensible of the importance of those duties and the responsibility which attached to their exercise; and, therefore, he had endeavoured, being obliged to entrust the performance of some of those duties to other persons, to select such persons as he thought most competent to discharge them; and be subscribed, in every respect, to the character given by the hon. Gentleman to Mr. Muir. It was true, as the hon. Gentleman had stated, that a prisoner was not put upon his trial till his case was investigated before some local magistrate, and till such a body of evidence was adduced as would justify the committal of the prisoner. That being done the examination was submitted to those who acted with him in the office of Lord Advocate, and they saw if the evidence was sufficient to put the party on his trial. In the case of Mr. Walker, the public prosecutors were of opinion that the evidence adduced before the magistrate was sufficient to put him on his trial; but any person who watched the progress of trials, and particularly criminal trials, must be aware that the evidence adduced at the trial was not in all respects the same as that which the public prosecutor had reason to expect. In this particular case the trial proceeded with closed doors, under the authority of a statute which directed that this course should be adopted in cases where the evidence was unfit to be heard. And the charge against the Judge, as he understood it, was this, that during the progress of the trial there was an undue interference, not on the part of the presiding Judge, but on the part of the Lord Justice Clerk, who was said to have conducted himself in such a manner that a case was abandoned which ought not to have been abandoned, and that a party was allowed to go away who ought to have been convicted. He did not admit that a Judge had a constitutional right to stop the course of a trial which in the opinion of the public prosecutor ought to proceed. He thought nothing could be more conducive to the convenience of the public than that, when the Judge saw that the principal witness, on the credibility of whose testimony the main weight of the case rested, was unsupported, and that the other witnesses examined did not bear out the evidence—he thought nothing could be more judicious or less improper than the Court apprising the prosecutor of that fact, leaving him to decide whether he should take any further steps to establish the case. Undoubtedly in that case public opinion would sanction the prosecutor in abandoning it, he having the opinion of the Judges in favour of that course. Now the facts as they appeared on the record had been returned, and it would appear that the prisoner having pleaded not guilty, an interlocutor of relevancy was pronounced, that being the usual course of proceeding in the Scotch Courts under such circumstances, and forms of proceeding being settled and certain facts admitted before going to trial, the witnesses were then examined—the girl who was said to have been injured, the woman in whose house she lodged, and one or two others; and then after hearing the opinion of the Court the prosecutor abandoned the case. The prisoner was not heard in his defence at all—the time for that had not even arrived, and on the evidence as put forward by the prosecution the jury returned a verdict of Not Guilty. Now if, under such circumstances, the foreman of the jury who had returned that verdict, without hearing the evidence on behalf of the prisoner, had pronounced the man guilty, he could only say that he thought it most fortunate that the prisoner had not been tried and sentenced by that jury. If the jury had not returned any verdict at all it would have been the duty of the Judge to have dismissed him simpliciter from the bar, and he never could be tried again for that offence. They had two forms of verdict in Scotland—Not Proven, and Not Guilty;—and he had imagined that in that case the jury would have returned a verdict of Not Proven. It appeared that the clerk entered the verdict of Not Guilty, and read it to the jury, asking them if that was their verdict. No observation was made at the time the verdict was recorded, and the Protest to which the hon. Gentleman referred was not given in till the next day. There was no objection made to the Clerk of the Court entering a verdict of Not Guilty; and it appeared to him that nothing was more likely than that the Protest formed a portion of the waste paper which accumulated upon the Bench during the trial of criminal cases. It was said that the Lord Justice Clerk had improperly interfered in the case, but the House was probably aware, that while one Judge conducted the proceedings, the other sat beside him to give any assistance that might be requisite. In the particular case before the House both the Judges were of opinion that the evidence was not sufficient to sustain the case, and it was then suggested that the case ought to be abandoned. The Advocate Depute, however, thought it better to call further evidence, and accordingly the medical gentleman was examined, and the Court having then repeated its opinion that there was no case to go to trial, the Advocate abandoned it. He was stating these facts not upon mere opinion of his own, but upon the authority of the Advocate Depute himself, who had communicated with him upon the subject. The hon. and learned Gentleman read a letter from the Advocate Depute in which he stated that the evidence was not sufficient to support a conviction, and he had not pressed the case further. Now, that was the statement of the case from a person whose capacity for managing matters of that kind even the hon. Member opposite would not question, and under all the circumstances he really could see nothing to blame in the conduct of the Court or the prosecutor. The conduct of the Judge was said to be exceedingly overbearing, but he could not gather that such was the fact from the statement that he had just read. It was also said that he had been promoted over the heads of other members of the Bar, but he begged to say that that learned Lord had for nine years held the office of Solicitor General; that at that period he was at the Bar, and was then elected Dean of the Faculty—the highest honour that could be conferred upon him by his learned brethren. He had been for eighteen years at the top of his profession, and that he thought was quite sufficient to convince the House that he was no ordinary man. He did not think that the hon. Gentleman had established any grounds for the reflections he had cast upon that learned Lord, nor did he think that any case had been made out which called for the interference of that House, and he trusted they would feel it their duty to negative the Motion of the hon. Member.

Mr. Wallace

believed Mr. Muir never intended to give up the case, and with regard to the Protest to which the learned Lord Advocate had attached so little importance, he had abundant reason to believe that the whole of the fifteen jurymen coincided in it. They said that it was not their verdict—that it had been put into their mouths, and they wanted more evidence to be laid before them. Now the unfortunate girl was turned out upon the world with obloquy upon her character, and without a fair panel; and the man got off without any punishment.

The House divided:—Ayes 36; Noes 149: Majority 113.

List of the AYES.
Arundel and Surrey, Earl of Langton, W. G.
McTaggart, Sir J.
Bellew, R. M. Marjoribanks, S.
Bouverie, hon. E. P. Morris, D.
Bowring, Dr. Muntz, G. F.
Bright, J. Napier, Sir C.
Busfeild, W. O'Connell, M. J.
Cobden, R. Ogle, S. C. H.
Collett, J. Pattison, J.
Cowper, hon. W. F. Pechell, Capt.
Duncan, Visct. Plumridge, Capt.
Duncan, G. Ramsbottom, J.
Duncombe, T. Stansfield, W. R. C.
Dundas, hn. J. C. Thornely, T.
Easthope, Sir J. Wakley, T.
Ellis, W. Wawn, J. T.
Fielden, J. Williams, W.
Hastie, A. TELLERS.
Hill, Lord M. Wallace, R.
James, W. Bannerman, A.
List of the NOES.
Adare, Visct. Drummond, H. H.
Adderley, C. B. Eastnor, Visct.
Allix, J. P. Egerton, W. T.
Arkwright, G. Egerton, Sir P.
Bailey, J. Eliot, Lord
Bailey, J. jun. Emlyn, Visct.
Baillie, Col. Escott, B.
Barnard, E. G. Estcourt, T. G. B.
Baskerville, T. B. M. Fellowes, E.
Bateson, T. Forman, T. S.
Bennett, J. Fremantle, rt. hn. Sir T.
Bentinck, Lord G. Gardner, J. D.
Blackstone, W. S. Gaskell, J. Milnes
Boldero, H. G. Gladstone, rt. hn. W. E.
Borthwick, P. Gladstone, Capt.
Botfield, B. Gordon, hon. Capt.
Bowles, Adm. Gore, M.
Bradshaw, J. Gore, W. O.
Brotherton, J. Gore, W. R. O.
Bruce, Lord E. Goring, C.
Buck, L. W. Graham, rt. hn. Sir J.
Buller, Sir J. Y. Gregory, W. H.
Burroughes, H. N. Grogan, E.
Cardwell, E. Hale, R. B.
Christie, W. D. Halford, Sir H.
Christopher, R. A. Hamilton, C. J. B.
Clerk, Sir G. Hamilton, Lord C.
Clive, Visct. Hanmer, Sir J.
Clive, hon. R. H. Harcourt, G. G.
Collett, W. R. Harris, hon. Capt.
Corry, rt. hon. H. Hayes, Sir E.
Courtenay, Lord Henniker, Lord
Cripps, W. Hepburn, Sir T. B.
Damer, hon. Col. Herbert, hon. S.
Darby, G. Hindley, C.
Dawnay, hn. W. H. Hogg, J. W.
Denison, E. B. Holmes, hn. W. A'Ct.
Dickinson, F. H. Hope, hon. C.
Disraeli, B. Hope, G. W.
Douglas, Sir H. Hussey, T.
Douglas, Sir C. E. Hutt, W.
Ingestre, Visct. Polhill, F.
Irton, S. Praed, W. T.
Jermyn, Earl Price, R.
Jones, Capt. Pusey, P.
Knatchbull, rt. hn. Sir E. Richards, R.
Lefroy, A. Round, C. G.
Lennox, Lord A. Sandon, Visct.
Lincoln, Earl of Shaw, rt. hon. F.
Lindsay, H. H. Sheppard, T.
Lockhart, W. Shirley, E. J.
Long, W. Shirley, E. P.
Lygon, hon. Gen. Smith, rt. hn. T. B. C.
McGeachy, F. A. Smyth, Sir H.
Mackenzie, W. F. Somerset, Lord G.
Mackinnon, W. A. Stanley, Lord
Maclean, D. Stuart, H.
McNeill, D. Sturt, H. C.
Mahon, Visct. Sutton, hon. H. M.
Manners, Lord J. Thesiger, Sir F.
Marsham, Visct. Thornhill, G.
Marton, G. Trelawny, J. S.
Master, T. W. C. Trench, Sir F. W.
Masterman, J. Trevor, hon. G. R.
Miles, W. Trollope, Sir J.
Milnes, R. M. Vesey, hon. T.
Morgan, O. Waddington, H. S.
Mundy, E. M. Walsh, Sir J. B.
Neville, R. Wodehouse, E.
Newdegate, C. N. Wortley, hn. J. S.
Newry, Visct. Wortley, hn. J. S.
Norreys, Lord Yorke, hon. E. T.
Oswald, A. Yorke, H. R.
Patten, J. W. TELLERS.
Peel, rt. hon. Sir R. Young, J.
Peel, J. Baring, H.
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