§ SIR ROBERT COLLIER
said, that it was with great reluctance that he felt compelled to call attention to an error and exceptional case in the administration of justice, by which he believed that an innocent man had sustained a grievous wrong. He quite acceded to the general proposition laid down the other night by the right hon. Gentleman (Mr. Walpole), that it was not desirable for that House to interfere with the ordinary course of the administration of justice and to erect itself into a tribunal of criminal appeals. But he was unable to subscribe in the full extent to the doctrine enounced by the right hon. Gentleman that the application for papers in this case was wholly unprecedented. The right hon. Gentleman admitted that the House was entitled to an explanation of the grounds on which he had acted; but questioned the right of the House to require the production of documents and papers, without which it would be difficult for the House to form a judgment as to whether the right hon. Gentleman's explanation was satisfactory or not. The House had over and over again obtained that 1204 information, the request for which was designated by the right hon. Gentleman to be unprecedented, had acted on it, and had addressed the Crown on the subject of the exercise of the prerogative of mercy. He would not dwell on the numerous instances in the reign of Charles II., in which the House had addressed the Crown to obtain the pardon of a criminal; but would refer to one or two precedents in modern times, for he should be sorry if the House supposed that he was leading it into a new and unconstitutional course. In 1814, Lord Ebrington, then a conspicuous Member of the House, moved an Address to the Crown praying for a revision of the sentence passed on Lord Cochrane. In that case the evidence of the trial and the Reports of the Judges were before the House. To show that that was the case, he would read some extracts from Hansard. The following passage was from the speech of the Solicitor General of that time:—Having read and attentively examined the report of the trial, including the evidence, the address of counsel on both sides, and the Charge of the Judge, he should have felt himself bound, were he on the jury, to find Lord Cochrane guilty, were that noble Lord his own brother."—[1 Hansard, xxviii. 768.]The Solicitor General then went through the whole of the evidence which had been laid on the table of the House; and the feeling being in favour of the Motion, the Government announced that that portion of the sentence inflicting the punishment of the pillory should not be put in force. In the case of Frost, Williams, and Jones a Motion for an Address to the Crown was made. It was true that the Motion was negatived; but there appeared in the list of the minority no less a name than that of the present Chancellor of the Exchequer (Mr. Disraeli). It was not to be supposed that the high authority of that right hon. Gentleman would have sanctioned an Address praying for mercy if such an Address had been unprecedented and unconstitutional. Upon that occasion Mr. Fox Maule, then Under Secretary for the Home Department, was reported in Hansard to have read to the House the letter of Chief Justice Tindal communicating to the Secretary of State the decision of the Judges on the point reserved; and the reply given by the three Judges who presided at the trial to the memorial presented to them by Sir Frederick Pollock and Mr. Kelly.—[3 Hansard, lii. 1140.] 1205 In the case of Jessie M'Laughlan the whole of the evidence was laid on the table of the House. The right hon. Gentleman said that was a peculiar case, but only peculiar cases came before the House. In the case of Townley, no less a person than the present Lord Chief Baron, Sir FitzRoy Kelly, applied for papers, and put precisely the same question to the then Home Secretary as he (Sir Robert Collier) had put to the present Home Secretary. He thought that he had stated enough to show that there was no novelty in the application he had made the other night, though there might be some novelty in the position assumed by the right hon. Gentleman. It behoved the House to investigate the manner in which the tribunal of appeal in the Home Office was worked, not from idle curiosity, but with a view to practical legislation. If many cases occurred, such as this, which he believed to be a case of mistaken severity (and there had been other cases of, he believed, mistaken and disastrous leniency), it would be for the House to consider whether it could not devise some better tribunal of appeal. He would now call attention to the facts of the case which he desired to bring under the notice of the House. The right hon. Gentleman had been courteous enough to inform him that he would produce the memorial sent to the Home Office on behalf of Toomer; but that he did not think it consistent with his duty to produce the notes of the evidence given at the trial. That being so, he must refer to the best sources he could for the evidence, and if any portion of his statement should be incorrect, all he could say was that he had done his best to be accurate. He was at issue with the right hon. Gentleman in limine, for the right hon. Gentleman treated this matter as a question of conflicting evidence; whereas it appeared plain that, according to the evidence of the prosecutrix herself, there ought to have been no conviction. It appeared by that evidence that the prosecutrix having advertised for a situation as governess, Toomer engaged her to teach his daughter music, she having previously, at his request, sent him her photograph, which was approved. When she went to Toomer's house she found that she had been deceived, for there was no daughter or daughters in the house, though she had been led to expect the contrary. She, nevertheless, remained for weeks in the house, and on familiar terms with Toomer, who kissed 1206 her and asked her to marry him. The prosecutrix also stated that on one occasion Toomer dragged her through the passage into a back room, undressed her, put her in bed, remained with her all night, and finally effected his purpose. During the whole of the time she was unable to make any alarm, because Toomer prevented her, and, though there were servants in the house, none of them heard any cry. It further appeared that she remained in bed, and in the morning took her breakfast, Toomer going out as usual to his business. She said that she wrote home on that day, and gave the note to the servant to post; but the servant denied that she received any such note, and no such note arrived at the place stated. She said that Toomer came home in the evening, and as he expressed himself penitent she forgave him. On the next day, by her own account, she walked out with him, was on the most familiar terms with him, took tea with him, and remained in the house. Three or four days after she said she was sleeping alone (why she did not explain, for she had been in the habit of sleeping with a servant), and for some unexplained reason she left the door of her room open. During the whole of that night she said that Toomer remained with her, again effected his purpose, but that she was unable to give any alarm, and that at some time next day she made a complaint. He put it to those who were conversant with the administration of justice—to those accustomed to criminal trials—whether even if that evidence of the prosecutrix stood alone, any jury would have convicted. But the case did not stop there. Medical evidence was called in behalf of the prosecution, and it distinctly negatived the possibility of a rape. So strong was the opinion of the medical man called on the trial, that he wrote a letter to the editor of the Berkshire Chronicle, from which he would read an extract. He had been called for the prosecution, and if he had any bias it might be supposed to be on the side for which he was called. Mr. Maurice wrote—After examining Miss Partridge I gave evidence before the magistrates that the result of the examination did not support the charge. Your medical readers will know that in consequence of certain rare and exceptional cases I was compelled to be thus guarded; but after Miss Partridge had sworn to prolonged resistance, I was enabled to affirm that the medical evidence disproved the charge.1207 The case did not stop there. He could not help thinking that the right hon. Gentleman, of course, unintentionally, had led the House into a misunderstanding when he referred to the evidence of the two maid-servants. These two maid-servants were called on the part of the prosecution; and what was their evidence? It was to this effect, that if a rape had been committed and the prosecutrix had called out, they must have heard it, because they were in the house; but they heard nothing. That the prosecutrix had not written to her mother, as she said she had. That on the night of the alleged second rape she had made some excuse for the purpose of sleeping alone. That she had requested the maid-servant who was in the habit of sleeping with her to sleep with her niece, and on the maid-servant drawing her attention to the fact that she had left her door open, she made some trifling excuse. She slept alone therefore that night by her own contrivance. It further appeared, on the part of the prosecution, that she said she expected £20 from Mr. Toomer. He did not pay her that sum, and afterwards she went and gave information. That was the case in substance for the prosecution. Under these circumstances the counsel for the defence, a very eminent and able counsel, his hon. and learned friend (Mr. Huddlestone), called no witnesses; and for this reason, it never entered into his imagination to conceive that there could be a verdict of guilty. And he (Sir Robert Collier) did not hesitate to say he was right. He should have done the same thing. The jury retired to deliberate. They came into Court, and said they could not agree. They again retired, and remained in deliberation five hours. Finally they found a verdict of guilty, but coupled with a recommendation to mercy on the ground that the girl had been indiscreet and had encouraged Toomer.
§ MR. WALPOLE
The jury said there were extenuating circumstances. The Judge asked what were the extenuating circumstances, and the jury replied that the prosecutrix had been indiscreet?
§ SIR ROBERT COLLIER
said, he thought that amounted to pretty much the same thing. The jury had been locked up five hours. He was not speaking against trial by jury; but he did not agree with the principle of keeping a jury in durance vile, and no doubt in this, as in many other cases, the verdict was the 1208 result of a compromise. They were hungry and anxious to get away, and a compromise took place under the idea that only a slight sentence would be passed. He could not help thinking that the verdict almost amounted to this—that Toomer had committed a rape with the girl's consent. The learned Judge passed a sentence of fifteen years' penal servitude—a sentence which, he understood, astonished everybody in court, astonished the counsel on both sides, and astonished the country. That was the case so far as he understood it; and he was bound to say that in the whole course of his experience—and it had not been short—of criminal trials he had never known a conviction for rape founded upon evidence like this. He had conversed with a number of lawyers in Westminster Hall and out of it, and he had not met one—not, indeed, one man who approved the verdict. The public were against it, the Press was against it, it was condemned by public opinion. No doubt his right hon. Friend wished to do justice; but he venturned to think that this was one of those cases in which the prerogative of mercy, vested in the Crown, exercised under the advice of the Secretary of State for the Home Department, ought to have been exercised. There had been many Motions made in that House to the effect that a court of criminal appeal ought to be established; but the usual answer was that we had already a court of criminal appeal in the Home Office, which performed the function of the Courts in granting a new trial. He quite appreciated the difficulties of the right hon. Gentleman's position, and he knew that only one motive actuated him which was to do his duty; but, in his humble opinion, this was a case in which it was the duty of the Home Secretary to set aside a verdict which was manifestly wrong. There were many cases in which it was extremely difficult to decide between conflicting evidence; but here there was no balance of conflicting testimony. The case was comparatively simple. On the evidence of the prosecutrix there could be no conviction for rape. The whole case for the prosecution had broken down. The verdict was wrong, and should have been set aside. A memorial had been presented to the right hon. Gentleman, stating very shortly the facts of the case, and laying before him affidavits of persons who would have been called as witnesses at the trial had counsel thought it necessary. The effect of their evidence was shortly this— 1209 the next-door neighbours gave their evidence. It appeared that the room in which Toomer slept was separated by so thin a partition that what was said on the other side of the wall could be heard. That affidavit was sworn by a nurse who sat up with a sick person in the room adjoining. She said she could hear conversations which passed in Toomer's house, but on the night in question she heard nothing. That was the night during which the supposed rape took place. It was further shown that the girl had stated that she did not write home to her parents, though she swore that she did. It was shown that she had walked out with Toomer in the country, that she was seen with him, hanging on his arm, grasping both hands together, and playing with his whiskers, and all this between the occasion of the first and second rape. With respect to these affidavits, he did not attach very much weight to them, because the parties who made them might have been examined on the trial, and the affidavits did not contain their cross-examination. What he ventured to affirm was this, that on the case of the prosecution the man ought to have been acquitted. He would now call attention to the answer given by the right hon. Gentleman to the memorial. He stated that he could not advise a pardon to be granted to the prisoner, from the perusal these documents, unless he was satisfied that the prosecutrix had committed wilful and corrupt perjury. He ventured to say, with all respect for the right hon. Gentleman, that he had misconceived the whole subject. The question was not whether he was bound, upon those affidavits, to determine whether the prosecutrix had committed perjury; but, putting aside those affidavits altogether, whether upon the evideuce a just and proper verdict had been returned? There were many instances in which Home Secretaries had determined the question whether upon the case for the prosecution there ought to have been a conviction. If it was not to determine such a question, what was the use of the tribunal of the Home Office? But the right hon. Gentleman went on to say—Upon no other ground could he be justified in setting aside a verdict given after long deliberation, and entirely approved of by the learned Judge. It appeared to Mr. Walpole that it would be extremely unjust to form such an opinion upon statements which may without any difficulty be made in open court, subject to the test of cross-examination, and in the presence of the jury, who is to judge of the credit to which they are entitled. Mr. Toomer is bound, in the judgment of Mr. 1210 Walpole, to indict Miss Partridge for perjury, upon his own evidence and that of the different persons who now make declarations in his favour, but were not brought forward upon his trial. Unless Mr. Toomer pursues this course, he cannot reasonably expect the Crown to interfere with the decision which has already been pronounced in his case by a competent tribunal.He wished to say a few words upon the two grounds put forward by the right hon. Gentleman for refusing to interpose in the case. The first ground was that the learned Judge (Mr. Justice Slice) approved the verdict. He desired to speak with the utmost respect of that learned Judge; and he quite admitted that the opinion of the Judge who tried the case must, and ought to, have weight with the Home Secretary. But he altogether denied that the opinion of the Judge was to be taken as conclusive; for if the Home Secretary was bound to act upon the opinion of the Judge, what became of his appellate functions? It came to this, that they substituted the Judge for the Home Secretary. But the Home Secretary was the Constitutional adviser of the Crown in respect to the exercise of the prerogative of mercy; and his responsibility could not be thrown upon the Judge. It was the duty of the Home Secretary to form his own opinion, giving the weight which was due, but not more than was due, to the opinion of the Judge; and if he saw that, on a review of the whole case, the conviction was wrong, he was bound to disagree with that learned person. Unless, therefore, he was much mistaken in his reading of the facts, he could not help thinking that that was one to of those cases in which the Home Secretary was bound to exercise his discretion, and on a review of the whole case, to come to a conclusion different from that of the learned Judge. But, in the next place, the right hon. Gentleman stated that Mr. Toomer ought to indict Miss Partridge for perjury. That was throwing on Mr. Troomer an unreasonable obligation. What would be the result of a prosecution against Miss Partridge for perjury? He appealed to any man having experience of the criminal courts whether such a prosecution was at all likely to be successful. Toomer had no doubt behaved badly; and he would in come before the, jury with a certain prejudice against him as a man of loose morals. There would be no prepossession in favour of a man—an ironmonger's assistant. Would it not have been suggested by counsel that Miss Partridge had not stated what was wilfully false; that, 1211 at the worst, she had only exaggerated; that she had resisted, but had not resisted quite so much as she had stated; that she had not surrendered her virtue at the first attack, but had only capitulated after a certain amount of resistance; and that therefore it could not be said she bad committed perjury. That assuredly would have been the line of defence adopted; and no one could doubt that she would have been acquitted. What, then, would have been the position of Mr. Towner? His case would have been hopeless, and he would have had no chance of the remission of any portion of his sentence. Mr. Toomer therefore exercised a wise discretion in not taking that course. It therefore appeared to be a case peculiarly calling for the intervention of the Home Office; and it seemed to him that the grounds on which that intervention had been withheld were altogether untenable. He would venture to express a hope that, in deference to what he believed to be the public opinion and the opinion of the House, the right hon. Gentleman would give them the assurance that he would now, on re-consideration, advise the Crown to exercise the prerogative of mercy in the case. He was sure that such a statement would be received with great satisfaction by both sides of the House. If some assurance of that kind were not held out, it might become his duty on a subsequent occasion to take the opinion of the House on that subject. But he did not desire to follow that course; and he trusted that what he had now said would have the effect of eliciting from the right hon. Gentleman some explanation which might be satisfactory to the House.
§ MR. WALPOLE
Sir, there is one observation which I wish to offer before I enter upon the remarks just made by the hon. and learned Gentleman opposite, and it is this, that whatever may be the responsibility of adjudicating upon a case like this, that responsibility rests exclusively with myself. The hon. and learned Gentleman need not have adverted to the fact that the Judge had given an opinion in confirmation of the verdict pronounced by the jury, as if he thought that I was going to shelter myself behind the opinion of the Judge. At the same time, I must observe, from all the experience I have had of what has taken place at the Home Office, that it is the duty of the Home Secretary to hear what the Judge has to say upon the case, and to give great attention to his opinion upon it. In 1212 fact, he is the person who can give a better opinion than anybody else as to what were the impressions left upon his mind at the time by the evidence adduced, and by the conduct and demeanour of the witnesses, and also as to what are the impressions still remaining on his mind when he has seen any subsequent declarations. The hon. and learned Gentleman has gone into a very long disquisition upon the facts of this case; but he will forgive me for saying that I do not think it would become me to enter into his argument at any great length. The position which I have to take up, the position which I think I am bound to take up with reference to such a case as this, is one of neutrality and impartiality. I might traverse a vast number of the facts which the hon. and learned Gentleman has stated to the House. I might point out how he has collected together and put forward all the facts bearing upon one side of the case, as counsel would do in addressing a jury, without adverting to a single fact which weighs materially on the other side. I might point out that when he referred to the first assault, which was made upon the prosecutrix on the Wednesday preceding the Sunday, he entirely omitted all allusion to the struggles which took place, all allusion to the prisoner's producing a revolver and threatening in effect that her life might be in danger if she did not yield to him. I might advert to the night when the distinct crime was committed with which he was charged, and to the fact that the reason why she did not cry out was because the way in which he was alleged to have treated her, made it impossible for her to do so. I might still further refer to the circumstance—which the hon. and learned Gentleman wholly omitted—of her going to her room at night with the full belief that the maid-servant was to sleep with her, as she had done before, and of her being asleep in the room when Toomer came in and took her by surprise, and subjected her to these assaults. I should not have even alluded to these facts except for the purpose of showing that there may be two sides to a case, and that the opinion arrived at by the hon. and learned Gentleman was not inevitable. And here I may observe that I have never given any opinion upon this case, except to my able Under Secretary. I knew that it might be brought before me in every kind of form. I should have to consider whether, under all the circumstances, although the prisoner had been found guilty by a jury 1213 which had been approved by the Judge, and there would be no possibility of a rehearing or cross-examination of witnesses, it was my duty to recommend the Crown to exercise its prerogative of mercy. It is said that this man is entirely innocent. But, at all events, he has been convicted by a proper and competent tribunal. The Home Office never is, and never was, a Court of Appeal—that is to say, it is not a tribunal appointed to re-hear cases of this kind. If the Home Office were to attempt to exercise such a jurisdiction, and were to re-hear cases depending upon the testimony of witnesses, without the possibility of judging how far that evidence was to be depended upon, the course of justice in this country would be greatly interfered with. Do not let it be supposed that I think that the Home Secretary has not a very large power vested in him of advising the Crown to exercise its prerogative of mercy. I think there is such a power vested in him, not for the purpose of re-hearing a case which can only be properly re-heard before a Judge and jury, but for the purpose of taking into consideration not only the facts proved at the trial, but any other facts and circumstances that may be brought to light subsequently, of weighing them, and of determining whether, under all the circumstances, it is his duty to recommend the Crown to exercise its prerogative of mercy, and to mitigate the severity of the punishment. In no case, however, should he interfere against the decision both of Judge and jury, unless the case is so plain as to leave no reasonable doubt on the mind of any intelligent man that a great injustice had been done. There was one case which was very similar to the one now under discussion. I refer to the case of Mr. Hatch, a clergyman, who was accused of an assault upon two young girls. Mr. Hatch was charged with that assault, he was tried, and convicted, and his case then came before the Home Secretary. The representations made to the Home Secretary in that case were as strong as those which have been made in the present instance; but in that case the Judge himself had great doubts about the justice of the verdict. Affidavits were made and were presented to the Home Secretary, and what action did the then Home Secretary, Sir George Lewis, take upon these representations? The identical course that I have taken the liberty of following. He pointed out to Mr. Hatch that he ought to indict the persons upon whose 1214 evidence he had been convicted of perjury. He said, "Either you must convict these persons of deliberate perjury, or the sentence must stand." What was the result? Mr. Hatch indicted the persons for perjury, the verdict was in his favour, and he received—as most undoubtedly he ought to have done—a free pardon. The hon. and learned Gentleman says that there are reasons which prevent Toomer from coming into court to prosecute the person upon whose evidence he has been convicted. I will not go into that question; but I say that if Toomer is an innocent man he need not be afraid to go into a Court of Justice. Had he gone into court as soon as the opportunity was afforded him the case would have been tried, and by this time the question would have been settled. He declined to go into court. He has never indicted the prosecutrix for perjury. And not only has he not done this, but he has never by himself, or by his friends, or solicitor, made a single application to the Home Office to have his case practically—though, of course, it would not be formally—re-heard. Sir, every person who knows the practice of the Home Office knows perfectly well that such cases as these are heard and re-heard over and over again; and therefore I am unable to understand why that course has not been adopted in the present case. I ask the House what course, under these circumstances, was the wisest for me to pursue? There were two points raised in this case for my consideration—the question of guilt or innocence, and the question of excessive punishment. The first question has been determined by a jury under the direction of a Judge, and the case could not possibly be formally re-heard unless there were some kind of tribunal to re-hear and determine the case afresh. The second point, the question of excessive punishment, has never been brought before me. In reply to the hon. and learned Gentleman I have to say that I have carefully avoided forming a judgment upon this case in any way as regards the guilt or innocence of Toomer; but I may add that this very evening an hon. Friend of mine now in the House asked me whether I was prepared to receive a memorial from the friends of Toomer, praying that the case might be reconsidered in order that the punishment might be mitigated. I replied, as I have stated to many hon. Members during the present Session, that if such a memorial came before me it should have my best consideration. I have no bias in 1215 the matter. I have no desire whatever that any undue punishment should be inflicted upon Toomer. I cannot disguise from myself that the opinion of the Press and the opinion of the country—perhaps generally, although upon that point I could say a few words—is against Toomer's conviction, or, at all events, is against the extreme punishment to which he has been sentenced. Perhaps upon this point I shall not transgress my duty by saying that from the very beginning I thought the punishment to which Towner was sentenced was so severe that it ought not to stand. I never had the slightest hesitation upon that point; but that question has never been brought before me. The reason why I thought that the punishment ought not to stand was, because I felt that the jury's recommendation to mercy, founded probably upon some indiscretion of the prosecutrix, should have been attended to. The case has been a very painful one to me; and all I can say is that whenever it is brought before me in a proper shape, I shall be ready to endeavour to exercise the best judgment I can upon the matter. And now one word as to another Question which has been put to me this evening. I could not, in consequence of the forms of the House, answer the Question put to me by the hon. Member for Northampton (Mr. Gilpin) when he made the inquiry; but I may now state, with regard to the case tried before Mr. Baron Bramwell, that that learned Judge did not only not exceed his duty, but he did that which every honourable and upright Judge would have done under the circumstances. The law of the case is perfectly clear. Until the record is made up, which is not until the end of the assizes, the sentence may be either mitigated or increased, according to the circumstance that may arise. In the case alluded to, the conduct of the prisoners after sentence was passed upon them was of such a ferocious and murderous character, and indicated such depraved dispositions, that had the occurrence taken place before the sentence was passed, the Judge would have doubtless sentenced them to as severe a punishment as he afterwards did. I believe that the Judge was perfectly justified in all that he did; and I can only conclude by saying that a more able, upright, and honourable Judge than Mr. Baron Bramwell does not sit upon the Bench.
§ MR. CLIVE
said, there was a difference between the case of Toomer and that of 1216 Hatch. In the latter a conviction for perjury was possible; in Toomer's case it was out of the question. The evidence depended altogether upon the statement of the woman herself; and there was not only no corroboration of her evidence, but every circumstance was opposed to the truth of her statement. He was glad that the right hon. Gentleman was willing to receive a deputation; but Toomer's friends looked upon it as a question of guilt or innocence. They denied the guilt, but not the immorality. He never could understand which was the most marvellous, the conduct of the jury who convicted the prisoner, the Judge who sentenced him, or the Home Secretary who did not take the first opportunity to interpose. He could only express a hope that the right hon. Gentleman would go to the Home Office to-morrow with the determination to read the whole of the evidence over again. When he had done so, he was satisfied that the right hon. Gentleman would find it to be a case either for the entire remission of the sentence or the infliction of a merely nominal punishment.
§ SIR FRANCIS GOLDSMID
said, that as he represented the town of which Toomer was an inhabitant, he was anxious to explain that the reason why there had been no deputation to the Home Secretary from Reading was, that there was a considerable difference of opinion as to the question of the convict's guilt. There was no difference of opinion whatever as to the propriety of remitting part of the sentence, but Toomer claimed to be altogether absolved. No further light could be thrown upon the case by indicting the woman for perjury. The opinion of the town was that the disproportion of the offence to the punishment was absolutely monstrous. The rape—if rape there were—was reduced to the very minimum to which an offence could be diminished. The woman was evidently one of those who—Of her long resistance half repented,And, saying she would ne'er consent, consented.He trusted that the result of the further consideration which the right hon. Gentleman would give the case would be that, if he did not advise the Crown to remit the sentence altogether, he would inflict only a nominal punishment.
§ MR. NEATE
said, he had been in communication with the family and friends of the convict, and they considered him strictly entitled to an acquittal. In that feeling he entirely concurred. They were 1217 willing, however, to accept a remission of part of the punishment. As the question had been raised, he must express his most decided opinion that a more atrocious or absurd verdict was never given, or one which more called for the immediate interposition of the Home Secretary to set aside. If there had been more than one such verdict under the same Judge, he should maintain that there never was a case which more called for the constitutional interposition of the House to pronounce that a Judge who had encouraged—who had more than encouraged, who had compelled that verdict—was disentitled, by his manifest and notorious incapacity, to exercise his functions as a Judge. ["Oh, oh!"] That was his opinion, and he believed it was the almost universal opinion of the Bar and of the country. ["Oh!"] It was the opinion of every man to whom he had spoken on the subject. However, he did not wish to insist on this. The right hon. Gentleman wished to screen the office of Judge from the contempt and disrespect which might arise from cases of this kind. So far as he was entitled to represent the feelings of Toomer's family, they were willing to leave the case to the justice and humanity of the Home Secretary.
said, that unlike his hon. Friend (Sir Francis Goldsmid) who represented Mr. Toomer, or his hon. Friend (Mr. Neate) who represented the prisoner's family, he represented no one in this matter. A most extraordinary doctrine had been enunciated by the Home Secretary. The right hon. Gentleman said he had been of opinion from the very beginning that the sentence awarded to Toomer was excessive, and that it was one which ought never to have been passed upon him, yet he had told the House that he took no steps to mitigate it, because no memorial had been presented to him.
§ MR. WALPOLE
said, the only question brought before him was one of free pardon to Toomer, and not one of mitigation.
said, he wanted to know whether that was not special pleading on the part of the right hon. Gentleman? What were the appellate functions of the Home Secretary? Toomer's case was in all the newspapers; everybody was talking about it; and was the Home Secretary to be the only person in the country who was to ignore the case? He thought it was the duty of the Secretary of State to take cognizance of such cases. If he had a sufficient cognizance of this case to justify 1218 him in forming an opinion from the beginning that the punishment was excessive, he ought to have taken some steps to mitigate that punishment, and not to wait until some formal memorial was presented to him. He would ask, supposing the right hon. Gentleman to occupy his present office for the next fourteen years, whether this unfortunate man would remain in prison until that time, unless the right hon. Gentleman in the meanwhile received a formal memorial? Such opinions showed, he was almost inclined to say, such an absolute incapacity for understanding the duties attached to the office of Home Secretary, that he was astonished to hear such a doctrine enunciated in that House.
§ MR. DENMAN
said, he could not permit the observation of the hon. and learned Member for Oxford (Mr. Neate) to pass without notice. There was no Member of the Bench for whom the whole Bar entertained a higher respect or a more affectionate regard as a man of justice and humanity than the learned Judge who tried this case. Even if there had been a miscarriage of justice in this case, he was at a loss to understand how such remarks could have been uttered by a member of the same profession as that to which the learned Judge himself belonged. Judging from the newspaper reports, there appeared to have been good ground for leaving the question to the jury. And when the jury had convicted the prisoner, there were circumstances in the case which fully warranted a sentence of great severity. The man had inserted the most artful advertisements in the newspapers. [Sir ROBERT COLLIER: The advertisement emanated from the prosecutrix.] Well, she had advertised; and he replied and offered her the situation of governess to his children. It must be assumed that the jury believed her story in finding him guilty of rape; and the learned Judge, in passing sentence, could not but take into consideration the fact that Toomer had taken the young lady as a governess for his children into his house upon the implied understanding that he would treat her as a lady, and abstain from any kind of improper conduct. If therefore it was a rape at all, it was a bad case; and the learned Judge might well feel that it was one deserving a heavy sentence. He might himself, perhaps, think that the sentence was somewhat severe; but still, what the Home Secretary was asked to do was to release Toomer before even nine months of his 1219 sentence had expired—a course which would be exhibiting as great a lenity as the non-remission of any part of the sentence would be a severity. The Home Secretary was under no necessity to consider the question of remitting the sentence until the time came when he might consider that Toomer had undergone sufficient imprisonment. The manner in which this case had been brought forward had shown a departure from the course usually adopted on such occasions. He did not believe that it was the duty of the Home Secretary to constitute himself a court of appeal, to all intents and purposes, against the sentences of Courts of Justice. If a Home Secretary felt convinced that he could conscientiously reverse, without hearing the evidence or observing the demeanour of witnesses, the verdict of a jury and the opinion of a Judge, he was, of course, justified in overruling the decision. But he apprehended that it was no part of the duty of a Home Secretary from the perusal of newspaper reports or even of a Judge's notes to place himself in that position. It would be a dangerous doctrine to lay down that on all occasions when the verdict of a jury was distasteful to some persons in the country or in the House, it was the duty of the Home Secretary to act as a court of appeal, and revise that verdict upon written documents to suit the current of popular feeling. After the explanation of the Home Secretary, he saw no reason to suppose that the right hon. Gentleman had departed from his duty. The right hon. Gentleman had told them fairly what had passed in his mind respecting the severity of the sentence; and he trusted that, after a certain period of time, the right hon. Gentleman would feel it consistent with his duty to recommend the clemency of the Crown to be extended. He must confess that he believed with his hon. and learned Friend (Sir Robert Collier) that an indictment for perjury would not lead to a settlement of the case, because he thought no light would thereby be thrown upon Toomer's guilt or innocence. The woman's mouth being shut every presumption would be raised in her favour; and, whether guilty or innocent, she would be acquitted almost as a matter of course. He thought, however, the case might be left safely in the hands of the Home Secretary.
THE SOLICITOR GENERAL
I thought, Sir, this debate could hardly come to a conclusion without some hon. 1220 Gentleman on the opposite Benches rising to vindicate the learned Judge from the cruel attack of the hon. and learned Member for Oxford (Mr. Neate). As the hon. and learned Member appears for so long a time to have been in communication with Mr. Toomer's friends, I should have thought that he would have taken some other means of bringing into question the conduct of the learned Judge. The hon. and learned Gentleman has taken no such course; and now, sitting here in judgment on the conduct of the learned Judge, he says that his decision was a disgrace to the system of administration of justice in this country. [Mr. NEATE: What I said was that such a decision might justify the interference of the House.] I should, at all events, have thought that the hon. and learned Member would have adopted some other method of raising the question of the learned Judge's conduct instead of attacking him in this House, where he can offer no explanation or defence. I will, however, pass that by, and proceed to make a few observations upon what has fallen from my hon. and learned Friend (Sir Robert Collier), The question, as I apprehend it, is, was the Home Secretary wrong in not pardoning Toomer at the time the application was made for his pardon? Now, this offence charged against Toomer was deliberately sworn to. But my hon. and learned Friend suggests that the jury were hungered down, and were thus induced to return a verdict against the prisoner, which is by no means probable. The hon. and learned Member for Oxford, who appears to have almost confined his conversation on this subject to Toomer's family and friends, says that he has heard nothing but disapproval of the verdict and the sentence; but the hon. Member for Reading (Sir Francis Goldsmid) states that he has met with expressions of approval as well as of disapproval. You have the verdict of the jury and the opinion of the learned Judge who heard the whole of the evidence—not merely so much of it as my hon. and learned Friend has laid before the House to-night. The learned Judge, upon the calmest reconsideration of the evidence, states his belief that the verdict is a justifiable one, and that it is one from which he cannot dissent. What course was the Home Secretary to take under these circumstances? My hon. and learned Friend says that the Home Secretary may listen to the opinion of the Judge; but that he is 1221 not to be guided by that opinion. So that, although the Judge is convinced of the justice of the verdict, the Home Secretary is to take upon himself to say that that verdict is wrong; he is to set it aside, and to act upon his own opinion. That, I think, would be a very dangerous doctrine. My hon. and learned Friend might have told the House, what perhaps legal Members only are aware of, that when a case which has been tried at Nisi Prius, and a motion is made to disturb the verdict, if the learned Judge who tried the case assures the four Judges before whom it comes afresh that he is not dissatisfied with the verdict, it is allowed to stand, although the evidence may appear to preponderate against the decision of the jury. But my hon. and learned Friend says, notwithstanding the verdict of the jury and the opinion of the learned Judge, that the Home Secretary should take upon himself to Ray, "I think this a case in which no crime has been committed, and I at once recommend Her Majesty to exercise mercy and order the immediate release of the man." The suggestion made by the Home Secretary was a very fair one. It was open to the friends of Toomer to prosecute his accuser on the charge of perjury; and it is no answer to that suggestion to say that it would have been impossible to obtain a conviction. I pass by the question of possibility of conviction and offer another more important consideration. It is perfectly clear that from the time the Home Secretary suggested the prosecution of Toomer's accuser on the charge of perjury no answer has been made to the suggestion, nor has any mention been made of the difficulties in Toomer's way as a prosecutor on that charge, nor, indeed, has any further application been made to the Home Secretary in the case. The first position taken up by Toomer and his friends was that he was not guilty. The Home Secretary says in reply that he cannot act on that assertion; and I think he was right. If you can prove Toomer not guilty, do so; but, while the jury's verdict stands, and the Judge himself thinks the conviction can well be supported, I think the Home Secretary would have exceeded his duty if he had set all that aside, and had advised Her Majesty to grant a pardon. The question of a modification of a severe sentence is a very different one, and such as may be properly entertained. I cannot help thinking that when the facts are 1222 brought before him, the Home Secretary will find ample ground for considering whether a portion of the sentence may not be remitted. With respect to the sentence of Mr. Baron Bramwell at Kingston, I think the remarks made upon it to-night have arisen from a misapprehension of the facts. The hon. Baronet (Sir George Bowyer) suggested that the increase of punishment awarded in the case was possibly ascribable to a personal feeling on the part of the Judge with reference to the conduct of the prisoners. If he will look at the reports of the case, he will find that it was nothing of the sort. The men made a murderous attack on the Governor of the prison, and the learned Judge told the prisoners that it was not because of any abuse of him or of their violence in the dock, but because he saw from their manner that they were men of cruel and fierce dispositions, that he passed a severe sentence.
§ SIR FRANCIS GOLDSMID
said, that what he had stated was that there was a difference of opinion among the inhabitants of Reading in the Toomer case.
§ MR. SULLIVAN
said, he questioned the allegation of the Solicitor General that if Toomer's case could have come before the Judges in banco they would have adopted the opinion of the Judge who tried him, and have confirmed the verdict. He desired nothing more than that the case should be considered as if it were a civil action, for if a verdict in a civil action were against evidence it would be set aside by the Judges in banco, even though they had to override the opinion of their colleague who tried it. He was a stranger to this case, except that he had read in Ireland a report of the trial, and when he did so it struck him, as it had other lawyers, that the verdict was bad, and ought to be condemned. The circumstances showed that the sentence could not be supported, but must be reformed. The Solicitor General had asserted that a rape had been sworn against Toomer on the trial; but he (Mr. Sullivan) dewed that. There was a line between what was and what was not rape. If a woman committed an indiscretion, it could not be rape, and in this case the jury said that the prosecutrix had been guilty of indiscretion. This was a case where the dispute was not about the facts, but about the intention, and therefore no prosecution could be instituted. In Hatch's case the simple question was whether the witnesses for the prosecution were truthful, because, 1223 if so, the charge was indubitably proved; but here the evidence for the Crown was consistent with there having being no rape at all, and this would be Miss Partridge's defence if she were prosecuted. He thought the Home Secretary had approached the question that night in a very fair spirit, and he hoped that the right hon. Gentleman in mitigating the sentence would substantially reverse it. He would thus take from the administration of the law one of the severest reproaches it had ever incurred.
§ MR. BAGGALLAY
said, that he might be disposed to come to the conclusion that though Toomer was technically guilty the sentence pronounced upon him was more severe than necessary; but he must remind the House that there was another person besides Toomer who might be said to be now on her trial, and that was the unfortunate prosecutrix. If the right hon. Gentleman were to consent to the appeal now made to him, and at once to grant a free pardon to Toomer, how could he do that without branding Miss Partridge as a harlot and a perjurer, though she had undergone the ordeal of a public trial and been subjected to cross-examination. He put it to the House whether that would be either fair or just. He had listened with great attention to the argument of the hon. and learned Gentleman (Mr. Sullivan), who said he wished to treat this question as substantially a new trial. But his right hon. Friend had taken that very course of obtaining for him a new trial when he gave him an opportunity of instituting a trial for perjury. It was objected to this that there was a probability the prosecution would not be successful. That might be so; but if it were not, still his right hon. Friend would have another opportunity of knowing the demeanour of Toomer and the other witnesses on both sides when they were brought into court and subjected to cross-examination. He thought the course which his right hon. Friend proposed was the only real test of the truth.
§ MR. THOMAS CHAMBERS
said, his hon. and learned Friend was an eminent member of the Equity Bar; but it was evident he had been too busily engaged in his own courts ever to set his foot inside a criminal court, for he was entirely unacquainted with their mode of procedure. There could be no prosecution for perjury instituted in this case, because there was no dispute as to the facts. All that the prosecutrix had sworn might be true; but the 1224 crime did not consist in the facts, in the mere thing done, but in its being done in spite of the most resolute opposition and by the forcible overpowering of that opposition. He submitted to the right hon. Gentleman (Mr. Walpole), whose intense anxiety to do right was admitted on all sides, that there had been in this case a miscarriage of justice; because, when the jury found the prisoner guilty, but recommended him to mercy on the ground that the prosecutrix had been indiscreet, there was an obvious attempt to make a compromise between guilt and innocence where no such compromise was possible. The question whether the act was committed against the will of the prosecutrix was eminently one for the jury to determine; but the verdict was not justified by the evidence. The counsel for the prisoner exercised a wise discretion in not calling witnesses, for he was entitled to argue that upon the evidence for the Crown the balance of probability even was against the commission of a rape, and that there was therefore no case for a conviction. There was no technicality involved; the whole point at issue was whether what was done was done, not in the face of modesty, reluctance, and some kind of resistance, but whether it was done forcibly, feloniously, and against the final will of the party complaining. That forcible connection was rape, and nothing else was. The difference between Toomer's case and that of Hatch was, that in the latter case it was possible to prove that what the girls alleged to have occurred could not have taken place at the times and places and under the circumstances to which they swore; but not so in the present case, where nothing was in issue but the force. He did not complain of the sentence on the supposition that the verdict had been justified by the facts, for then it would, no doubt, have been a very aggravated case, and one calling for severe punishment, for the prosecutrix was under the prisoner's roof in an honourable capacity, and entitled to his respect and protection; and criminal violence under such circumstances would have been more than ordinarily atrocious, and deserving of more than ordinary punishment.
THE ATTORNEY GENERAL
said, he must remind the House that they were pursuing an argument that was utterly irrelevant, and one that could lead to no useful end, inasmuch as there were no papers on the table of the House. Some hon. Gentlemen had read the trial in the newspapers; 1225 others, including himself, had not done so, and they had no means of judging of the guilt or innocence of Toomer. But the facts of the case, as admitted in the discussion, appeared to be these—Toomer had a fair trial in open court, before a jury of his countrymen; was convicted to the satisfaction of the learned Judge who tried him, and received a heavy sentence, There must have been something in the demeanour of the witnesses, and the manner in which their evidence be was given, to impress the learned Judge. Without discrediting anything which his hon. and learned Friend (Sir Robert Collier) asserted of his own knowledge, he certainly could not accept as accurate the narrative which he had given, from the report others, of what occurred in court. It was irreconcilable with the sentence.
SIR, ROBERT COLLIER
said, that in absence of the best evidence he had procured the best within his power.
THE ATTORNEY GENERAL
said, he was not able to follow in the wake of his hon. and learned Friend. Even if he had enjoyed the opportunity of reading the newspapers on this subject, he should not have taken upon himself to represent to the House that what he had there seen amounted to a narrative of facts. It had been admitted, after all that had taken place, and after the public mind had been excited by discussion, that opinion in the town of Reading was even now divided upon the point. The conduct of his right hon. Friend (Mr. Walpole) accordingly was entirely vindicated. Had he yielded to the prayer urged upon him in the the first instance, to declare the innocence of Toomer, and entirely to remit the sentence, he would have been guilty of neglect of duty. At the same time, the matter was one in which the right hon. Gentleman would be justified in giving, as he had promised to give, his careful consideration to the question of the propriety of mitigating the severity of the sentence. It should be borne in mind that while it was important that the Secretary of State should not neglect the duty of the Crown in the exercise of the prerogative of mercy vested in the Crown, it was not less important that he should vindicate the law, and uphold, instead of treating as nullities, the verdicts of juries, and the decisions of Judges. To say that the Secretary of State for the Home Department was to be considered for all purposes, and to all intents, an appellate 1226 tribunal in every case in which discussions might be raised as to the guilt or innocence of a prisoner, was to introduce a most dangerous doctrine. Nothing more calculated to bring into disrespect the administration had of justice could be imagined than the creation of such an appellate jurisdiction without a single incident essential to the due administration of such functions. No doubt, it was of great importance that the Royal prerogative of mercy should exist and be administered with judgment and moderation; but it was of equal importance that the interests of justice should be upheld. A year or nine months had elapsed with out any application being made for a modification of the sentence. At first, Mr. Toomer and his friends would accept nothing less than a declaration of innocence. His right hon. Friend had expressed his entire willingness to receive and consider any application which might be made to him; but it certainly was not for his right Friend to review and to reverse the whole of the previous solemn proceedings. Had he taken upon himself to adopt such line of action under the circumstances of this case, he would have committed a mistake greater than any which had yet been imputed to him.
§ SIR ROBERT COLLIER
said, he wished to explain. His hon. Friends the Attorney General and the Solicitor General appeared to have understood him as saying that the Secretary for the Home Department ought to disregard the opinion of the Judge. But he had never intended to make any such statement. On the contrary, he had expressed his belief that the opinion of the Judge ought to have great weight in such cases, while it ought not to be considered conclusive.
§ MR. REARDEN
said, that the circumstances of the present inquiry afforded the strongest proof of the necessity for establisting a court of appeal before the close of the Session.
§ MR. MONTAGU CHAMBERS
said, he thought the House of Commons was going beyond its province in re-trying a case which had been already heard before a Judge and jury. He submitted that was not one of their functions. They had not the proper materials on which to found their judgment, but merely newspaper reports. His hon. and learned Friend (Mr. Baggallay) had truly remarked that they were not merely trying Toomer, but also Miss Partridge, who had gone before a jury and subjected herself to a rigid cross- 1227 examination, after which the jury convicted the man whom she accused. The re-trying the case really meant that the House questioned the rectitude of trial by jury, and the propriety of decisions of juries when they were contrary to the notions of hon. Gentlemen. They had been trying this unfortunate woman, and saying that she was guilty of perjury. ["No, no!"] Hon. Members might cry out "No, no!" if they pleased; but, in point of fact, the House had been trying this woman in her absence and making the most severe animadversions upon her. He repeated his opinion that the House had gone a little beyond its province in discussing the propriety of granting a new trial in this case. If they were to act as a court of appeal from the decisions of the Secretary of State in cases of that description their labours would be interminable, and they could have no certainty that they would be enabled properly to discharge that new duty.
said, there was one portion of the reply of the Secretary of State which appeared to him to require some remark. The right hon. Gentleman had drawn attention to the precedent of the case of Hatch. Now, if the right hon. Gentleman were in search of a precedent to guide him in the course to be pursued in regard to Toomer, another case of more recent date might be taken—namely, the conviction for rape last year at Derby, which was tried by the same Judge, and by hint referred to the right hon. Gentleman for consideration. The right hon. Gentleman, in his answer to Toomer's memorial, stated, as a reason why he could not reverse the sentence, that he could not take upon himself to say that the prosecutrix had been guilty of perjury. Now, such being the case, he wished to ask the right hon. Gentleman to inform the House, how he was able to acquit the prisoners convicted at Derby?
§ MR. WALPOLE
said, no notice had been given to him of the intention of the hon. Gentleman to bring the case just referred to under the attention of the House. He must say he thought it was somewhat unfair for the hon. Gentleman to bring any charge against him with reference to his decision in that case, because the hon. Gentleman must be perfectly aware that every one of these cases turned upon its own special circumstances. The special circumstances in the case at Derby were totally different from those surrounding the 1228 case of Toomer, and he thought it was not right of the hon. Gentleman to bring forward the matter in the way he had done.
said, he had in the course of the evening called the right hon. Gentleman's attention to the case in question.
§ MR. WALPOLE
said, that just as he was going out of the House the hon. Gentleman had mentioned the matter to him.
§ MR. KNATCHBULL - HUGESSEN
said, he thought the case ought not to be discussed any further. He protested against the doctrine laid down by some hon. Members that the House was exceeding its province in dealing with questions of that description. He hoped that whenever there might exist what could fairly be regarded as a grievance the House would not refuse to take it into its consideration. Every one who knew what these cases were must be aware that a discretionary power of dealing with them must be left to the Home Secretary. It was impossible to judge of such cases without full and correct information; and as he himself had not the minutes of evidence before him, he felt precluded from going into the merits of the question. He felt assured that the result of this discussion would be to entirely clear the right hon. Gentleman the Secretary of State from any imputation of having acted otherwise than with a sincere desire to do impartial justice. If, however, the right hon. Gentleman should now think fit to mitigate the sentence, he would be acting in a manner which could reflect no discredit whatever upon him.