Harper's New Monthly Magazine, No. VII, December 1850, Vol. II

Justice is supposed in this country to be meted out with an even hand. A humane maxim says, "Better let ten guilty men escape, than one innocent man suffer." Yet what have the public, especially of "quiet neighborhoods," done; what crimes have we committed; what retribution have we invoked; that we are to be visited with the indiscriminating punishment, the excruciating agony, squealed and screeched into our ears out of that instrument of ineffable torture, the Scotch bagpipe? If our neighbor be a slanderer, a screw, a giver of bad dinners, or any other sort of criminal for whom the law has provided no punishment and a bag-pipe serenade be your mode of revenge on him, shut him up with a piper or pipers in the padded room in Bedlam, or take him out to the Eddystone lighthouse; but for the love of mercy, do not make us, his unoffending neighbors, partakers of his probably just, but certainly condign punishment!

We have, however, a better opinion of human nature than to believe in such extreme vindictiveness. We rather attribute these public performances of sonorous savagery to the perverted taste of a few unfortunate individuals, who pretend to relish the discords, and who actually pay the kilted executioners of harmony. The existence of such wretched amateurs might be doubted, if we did not remember that the most revolting propensities are to be found among mankind. There are people who chew tobacco; a certain tribe of Polynesian aborigines deem assafœtida the most delicious of perfumes; and Southey, in his Travels in Spain, states that the Gallician carters positively refused to grease their wheels because of the delight the creaking gave them. Yet although the grating of wooden axles, or even the sharpening of saws, is music to the pibroch, it appears from a variety of evidence that bad taste can actually reach, even in the female mind, to the acme of encouraging and patronizing street bagpipers.

Do we wish to banish all music from the busy haunts of men? By no means. Good music is sometimes emitted from our pavements – the kerb sends forth here and there, and now and then, sounds not unworthy of the best appointed orchestra. Where these superior street performers received their musical education it is not our business to inquire; but their arrangements of some of the most popular opera music, show that their training has been strictly professional. Quintette, Sestette, and Septette bands of brass and string are occasionally heard in the open street, whose performances show that the pieces have been regularly scored and rigidly rehearsed. "Tune, time, and distance" are excellently kept; the pianos and fortes are admirably colored – there is no vamping of basses; no "fudging" of difficult passages. We look upon such players as musical missionaries who purvey the best music from the opera houses and from the saloons of the nobility to the general public, to the improvement of its musical taste. But where even these choice pavé professionists have us at a disadvantage is in their discoursing their excellent music at precisely the times when we do not want the sounds of the charmer, charm he never so wisely. The habitant of the "quiet neighborhood," fond as he is of Casta Diva or the Rosen Waltz, would rather not be indulged with them just as he is commencing to study a complicated brief, or while he is computing the draft of a difficult survey. When he wants music he likes to go to it; he never wants it to come to him.

[From Dickens's Household Words.]

MISTAKES IN PERSONAL IDENTITY

There is no kind of evidence more infirm in its nature and against which jurymen on legal trials should be more on their guard, than that involving identity of person. The number of persons who resemble each other is not inconsiderable in itself; but the number is very large of persons who, though very distinguishable when standing side by side, are yet sufficiently alike to deceive those who are without the means of immediate comparison.

Early in life an occurrence impressed me with the danger of relying on the most confident belief of identity. I was at Vauxhall Gardens where I thought I saw, at a short distance, an old country gentleman whom I highly respected, and whose favor I should have been sorry to lose. I bowed to him, but obtained no recognition. In those days the company amused themselves by walking round in a circle, some in one direction, some in the opposite, by which means every one saw and was seen – I say in those days, because I have not been at Vauxhall for a quarter of a century. In performing these rounds I often met the gentleman, and tried to attract his attention, until I became convinced that either his eyesight was so weakened that he did not know me, or that he chose to disown my acquaintance. Some time afterward, going into the county in which he resided, I received, as usual, an invitation to dinner; this led to an explanation, when my friend assured me he had not been in London for twenty years. I afterward met the person whom I had mistaken for my old friend, and wondered how I could have fallen into the error. I can only explain it by supposing that, if the mind feels satisfied of identity, which it often does at the first glance, it ceases to investigate that question, and occupies itself with other matter; as in my case, where my thoughts ran upon the motives my friend might have for not recognizing me, instead of employing themselves on the question of whether or no the individual before my eyes was indeed the person I took him for.

If I had had to give evidence on this matter my mistake would have been the more dangerous, as I had full means of knowledge. The place was well lighted, the interviews were repeated, and my mind was undisturbed. How often have I known evidence of identity acted upon by juries, where the witness was in a much less favorable position (for correct observation) than mine.

Sometimes, a mistaken verdict is avoided by independent evidence. Rarely, however, is this rock escaped, by cross-examination, even when conducted with adequate skill and experience. The belief of the witness is belief in a matter of opinion resulting from a combination of facts so slight and unimportant, separately considered, that they furnish no handle to the cross-examiner. A striking case of this kind occurs to my recollection, with which I will conclude.

A prisoner was indicted for shooting at the prosecutor, with intent to kill him. The prosecutor swore that the prisoner had demanded his money, and that upon refusal, or delay, to comply with his requisition, he fired a pistol, by the flash of which his countenance became perfectly visible; the shot did not take effect, and the prisoner made off. Here the recognition was momentary, and the prosecutor could hardly have been in an undisturbed state of mind, yet the confidence of his belief made a strong impression on all who heard the evidence, and probably would have sealed the fate of the prisoner without the aid of an additional fact of very slight importance, which was, however, put in evidence, by way of corroboration, that the prisoner, who was a stranger to the neighborhood, had been seen passing near the spot in which the attack was made about noon of the same day. The judge belonged to a class now, thank God! obsolete, who always acted on the reverse of the constitutional maxim, and considered every man guilty until he was proved to be innocent.

If the case had closed without witnesses on behalf of the prisoner, his life would have been gone: fortunately, he possessed the means of employing an able and zealous attorney, and more fortunately, it so happened that several hours before the attack the prisoner had mounted upon a coach, and was many miles from the scene of the crime at the hour of its commission.

With great labor, and at considerable expense, all the passengers were sought out, and, with the coachman and guard, were brought into court, and testified to the presence among them of the prisoner. An alibi is always a suspected defense, and by no man was ever more suspiciously watched than by this judge. But when witness after witness appeared, their names corresponding exactly with the way-bill produced by the clerk of a respectable coach-office, the most determined skepticism gave way, and the prisoner was acquitted by acclamation. He was not, however, saved by his innocence, but by his good fortune. How frequently does it happen to us all to be many hours at a time without having witnesses to prove our absence from one spot by our presence at another! And how many of us are too prone to avail ourselves of such proof in the instances where it may exist!

A remarkable instance of mistake in identity, which put the life of a prisoner in extreme peril, I heard from the lips of his counsel. It occurred at the Special Commission held at Nottingham after the riots consequent on the rejection of the Reform Bill by the House of Lords, in 1831.

The prisoner was a young man of prepossessing appearance, belonging to what may be called the lower section of the middle rank of life, being a framework knitter, in the employment of his father, a master manufacturer in a small way. He was tried on an indictment charging him with the offense of arson. A mob, of which he was alleged to be one, had burned Colwick Hall, near Nottingham, the residence of Mr. Musters, the husband of Mary Chaworth, whose name is so closely linked with that of Byron. This ill-fated lady was approaching the last stage of consumption, when, on a cold and wet evening in autumn, she was driven from her mansion, and compelled to take refuge among the trees of her shrubbery – an outrage which probably hastened her death.

The crime, with its attendant circumstances, created, as was natural, a strong sympathy against the criminals. Unhappily, this feeling, so praiseworthy in itself, is liable to produce a strong tendency in the public mind to believe in the guilt of a party accused. People sometimes seem to hunger and thirst after a criminal, and are disappointed when it turns out that they are mistaken in their man, and are, consequently, slow to believe that such an error has been made. Doubtless, the impression is received into the mind unconsciously; but although on that ground pardonable, it is all the more dangerous. In this case, the prisoner was identified by several witnesses as having taken an active part in setting fire to the house.

He had been under their notice for some considerable space of time: they gave their evidence against him without hesitation, and probably the slightest doubt of its accuracy. His defense was an alibi. The frame at which he worked had its place near the entrance to the warehouse, the room frequented by the customers and all who had business to transact at the manufactory. He acted, therefore, as door-keeper, and in that capacity had been seen and spoken with by many persons, who in their evidence more than covered the whole time which elapsed between the arrival of the mob at Colwick Hall and its departure. The alibi was believed, and the prisoner, after a trial which lasted a whole day, was acquitted.

The next morning he was to be tried again on another indictment, charging him with having set fire to the castle at Nottingham. The counsel for the prosecution, influenced by motives of humanity, and fully impressed with the prisoner's guilt on both charges, urged the counsel for the prisoner to advise his client to plead guilty, undertaking that his life should be spared, but observing at the same time that his social position, which was superior to that of the other prisoners, would make it impossible to extend the mercy of the Crown to him unless he manifested a due sense of his offenses by foregoing the chance of escape. "You know," said they, "how rarely an alibi obtains credit with a jury. You can have no other defense to-day than that of yesterday. The castle is much nearer than Colwick Hall to the manufactory, and a very short absence from his work on the part of the prisoner might reconcile the evidence of all the witnesses, both for him and against him; moreover, who ever heard of a successful alibi twice running?"

The counsel for the prisoner had his client taken into a room adjoining the court, and having explained to him the extreme danger in which he stood, informed him of the offer made by the prosecutors. The young man evinced some emotion, and asked his counsel to advise what step he should take. "The advice," he was answered, "must depend upon a fact known to himself alone – his guilt or innocence. If guilty, his chance of escape was so small, that it would be the last degree of rashness to refuse the offer; if, on the other hand, he were innocent, his counsel, putting himself in the place of the prisoner, would say, that no peril, however imminent, would induce him to plead guilty." The prisoner was further told, that in the course of a trial circumstances often arose at the moment, unforeseen by all parties, which disclosed the truth; that this consideration was in his favor, if he were innocent, but showed at the same time that there were now chances of danger, if he were guilty, the extent of which could not be calculated, nor even surmised. The youth, with perfect self-possession, and unshaken firmness, replied, "I am innocent, and will take my trial." He did so. Many painful hours wore away, every moment diminishing the prisoner's chance of acquittal, until it seemed utterly extinguished, when some trifling matter, which had escaped the memory of the narrator, occurred, leading him to think it was possible that another person, who must much resemble the prisoner, had been mistaken for him. Inquiry was instantly made of the family, whether they knew of any such resemblance; when it appeared that the prisoner had a cousin so much like himself, that the two were frequently accosted in the streets, the one for the other. The cousin had absconded.

It is hardly credible, though doubtless true, that a family of respectable station could have been unaware of the importance of such a fact, or that the prisoner, who appeared not deficient in intelligence, and who was assuredly in full possession of his faculties, could be insensible to its value. That either he or they could have placed such reliance on his defense as to induce them to screen his guilty relative, is to the last degree improbable, especially as the cousin had escaped. Witnesses, however, were quickly produced, who verified the resemblance between the two, and the counsel for the prosecution abandoned their case, expressing their belief that their witnesses had given their evidence under a mistake of identity.

The narrator added, that an alibi stood a less chance of favorable reception at Nottingham than elsewhere, although in every place received with great jealousy. In one of the trials arising out of the outrages committed by the Luddites, who broke into manufactories and destroyed all lace frames of a construction which they thought oppressive to working men, an alibi, he said, had been concocted, which was successful in saving the life of a man notoriously guilty, and which had therefore added to the disrepute of this species of defense. The hypothesis was, that the prisoner, at the time when the crime was committed, at Loughborough, sixteen miles from Nottingham, was engaged at a supper party at the latter place; and the prisoner, having the sympathy of a large class in his favor, whose battle he had been fighting, no difficulty was experienced by his friends in finding witnesses willing to support this hypothesis on their oaths; but it would have been a rash measure to have called them into the box unprepared. And when it is considered how readily a preconcerted story might have been destroyed by cross-examination, the task of preparing the witnesses so as to elude this test, was one requiring no ordinary care and skill. The danger would arise thus: Every witness would be kept out of court, except the one in the box. He would be asked where he sat at the supper? where the prisoner sat, and each of the other guests; what were the dishes, what was the course of conversation, and so forth – the questions being capable of multiplication ad infinitum; so that, however well tutored, the witnesses would inevitably contradict each other upon some matters, on which the tutor had not foreseen that the witness would be cross-examined, or to which he had forgotten the answer prescribed. The difficulty was, however, surmounted. After the prisoner's apprehension, the selected witnesses were invited to a mackerel supper, which took place at an hour corresponding to that at which the crime was committed; and so careful was the ingenious agent who devised this conspiracy against the truth that, guided by a sure instinct, he fixed upon the same day of the week as that on which the crime had been committed, though without knowing how fortunate it would be for the prisoner that he took this precaution. When, on cross-examination, it was found that the witnesses agreed as to the order in which the guests were seated, the contents of the dishes, the conversation which had taken place, and so forth; the counsel for the crown suspected the plot, but not imagining that it had been so perfectly elaborated, they inquired of their attorneys as to whether there was any occurrence peculiar to the day of the week in question, and were told that upon the evening of such a day, a public bell was always rung, which must have been heard at the supper, if it had taken place at the time pretended. The witnesses were separately called back and questioned as to the bell. They had all heard it; and thus not only were the cross-examiners utterly baffled, but the cross-examination gave tenfold support to the examination in chief, that is, to the evidence as given by the witnesses in answer to the questions put by the prisoner's counsel in his behalf.

The triumph of falsehood was complete. The prisoner was acquitted. When however the attention of prosecutors is called to the possibility of such fabrications they become less easy of management. The friends of a prisoner are often known to the police, and may be watched – the actors may be surprised at the rehearsal; a false ally may be inserted among them; in short there are many chances of the plot failing. This, however, is an age of improvement, and the thirty years which have elapsed since the days of Luddism have not been a barren period in any art or science. The mystery of cookery in dishes, accounts, and alibis, has profited by this general advancement. The latest device which my acquaintance with courts has brought to my knowledge is an alibi of a very refined and subtle nature. The hypothesis is, that the prisoner was walking from point A to point Z, along a distant road, at the hour when the crime was committed. The witnesses are supposed each to see him, and some to converse with him, at points which may be indicated by many or all the letters of the alphabet. Each witness must be alone when he sees him, so that no two may speak to what occurred at the same spot or moment of time; but, with this reservation, each may safely indulge his imagination with any account of the interview which he has wit to make consistent with itself, and firmness to abide by under the storm of a cross-examination. "The force of falsehood can no farther go." No rehearsal is necessary. Neither of the witnesses needs know of the existence of the others. The agent gives to each witness the name of the spot at which he is to place the prisoner. The witness makes himself acquainted with that spot, so as to stand a cross-examination as to the surrounding objects, and his education is complete. But as panaceas have only a fabulous existence, so this exquisite alibi is not applicable to all cases; the witness must have a reason for being on the spot, plausible enough to foil the skill of the cross-examiner; and, as false witnesses can not be found at every turn, the difficulty of making it accord with the probability that the witness was where he pretends to have been on the day and at the hour in question, is often insuperable; to say nothing of the possibility and probability of its being clearly established, on the part of the prosecution, that the prisoner could not have been there. I should add, that, except in towns of the first magnitude, it must be difficult to find mendacious witnesses who have in other respects the proper qualifications to prove a concocted alibi, save always where the prisoner is the champion of a class; and then, according to my experience – sad as the avowal is – the difficulty is greatly reduced.

These incidents illustrate the soundness of the well known proposition, that mixture of truth with falsehood, augments to the highest degree the noxious power of the venomous ingredient. That man was no mean proficient in the art of deceiving, who first discovered the importance of the liar being parsimonious in mendacity. The mind has a stomach as well as an eye, and if the bolus be neat falsehood, it will be rejected like an overdose of arsenic which does not kill.

Let the juryman ponder these things, and beware how he lets his mind lapse into a conclusion either for or against the prisoner. To perform the duties of his office, so that the days which he spends in the jury-box will bear retrospection, his eyes, his ears, and his intellect must be ever on the watch. A witness in the box, and the same man in common life, are different creatures. Coming to give evidence, "he doth suffer a law change." Sometimes he becomes more truthful, as he ought to do, if any change is necessary; but unhappily this is not always so, and least of all in the case of those whose testimony is often required.

I remember a person, whom I frequently heard to give evidence quite out of harmony with the facts, but I shall state neither his name nor his profession. A gentleman who knew perfectly well the unpalatable designation which his evidence deserved, told me of his death. I ventured to think it was a loss which might be borne, and touched upon his infirmity, to which my friend replied in perfect sincerity of heart, "Well! after all, I do not think he ever told a falsehood in his life —out of the witness box!"

[From Dickens's Household Words]

THE GHOST THAT APPEARED TO MRS. WHARTON

When my mother was a girl, some rumors began to steal through the town where she lived, about something having gone amiss with old Mrs. Wharton: for, if Mrs. Wharton was not known by all the townspeople, she was known and respected by so many, that it was really no trifle when she was seen to have the contracted brow, and the pinched look about the nose that people have when they are in alarm, or living a life of deep anxiety. Nobody could make out what was the matter. If asked, she said she was well. Her sons were understood to be perfectly respectable, and sufficiently prosperous; and there could be no doubt about the health, and the dutifulness, and the cheerfulness, of the unmarried daughter who lived with her. The old lady lived in a house which was her own property; and her income, though not large, was enough for comfort. What could it be that made her suddenly so silent and grave? Her daughter was just the same as ever, except that she was anxious about the change in her mother. It was observed by one or two that the clergyman had nothing to say, when the subject was spoken of in his hearing. He rolled and nodded his head, and he glanced at the ceiling and then stuck his chin deep into his shirt-frill: but those were things that he was always doing, and they might mean nothing. When inquired of about his opinion of Mrs. Wharton's looks and spirits, he shifted his weight from one foot to the other, as he stood before the fire with his hands behind him, and said, with the sweet voice and winning manner that charmed young and old, that, as far as he knew, Mrs. Wharton's external affairs were all right; and, as for peace of mind, he knew of no one who more deserved it. If the course of her life, and the temper of her mind, did not entitle her to peace within, he did not know who could hope for it. Somebody whispered that it would be dreadful if a shocking mortal disease should be seizing upon her: whereupon he, Mr. Gurney, observed that he thought he should have known if any such thing was to be apprehended. As far as a fit of indigestion went, he believed she suffered occasionally; but she did not herself admit even that. Dr. Robinson, who was present, said that Mrs. Wharton's friends might be quite easy about her health. She was not troubled with indigestion, nor with any other complaint. People could only go on to ask one another what could be the matter. One or two agreed that Mr. Gurney had made very skillful answers, in which he was much assisted by his curious customary gestures; but that he had never said that he did not know of any trouble being on Mrs. Wharton's mind.

Soon after this, a like mysterious change appeared to come over the daughter; but no disasters could be discovered to have happened. No disease, no money losses, no family anxieties were heard of; and, by degrees, both the ladies recovered nearly their former cheerfulness and ease of manner – nearly, but not altogether. They appeared somewhat subdued, in countenance and bearing; and they kept a solemn silence when some subjects were talked of, which often turn up by the Christmas fireside. It was years before the matter was explained. My mother was married by that time, and removed from her smoky native town, to a much brighter city in the south. She used to tell us, as we grew up, the story of Mrs. Wharton, and what she endured; and we could, if we had not been ashamed, have gone on to say, as if we had still been little children, "tell us again." When we were going into the north to visit our grandparents, it was all very well to tell us of coal-wagons that we should see running without horses, or iron rails laid down in the roads; and of the keelmen rowing their keel-boats in the river, and, all at once, kicking up their right legs behind them, when they gave the long pull; and of the glass-houses in the town, with fire coming out of the top of the high chimneys; and of the ever-burning mounds near the mouths of the coal-pits, where blue and yellow flames leaped about, all night, through the whole year round. It was all very well to think of seeing these things; but we thought much more of walking past old Mrs. Wharton's house, and, perhaps, inducing Mr. Gurney to tell us, in his way, the story we had so often heard my mother tell in hers.

The story was this:

One midsummer morning Mrs. Wharton was so absent at breakfast, that her daughter found all attempts at conversation to be in vain. So she quietly filled the coffee-pot, which her mother had forgotten to do, and, in the middle of the forenoon, ordered dinner, which she found her mother had also forgotten. They had just such a breakfasting three times more during the next fortnight. Then, on Miss Wharton crossing the hall, she met her mother in bonnet and shawl, about to go out, so early as half-past nine. The circumstance would not have been remarked, but for the mother's confused and abashed way of accounting for going out. She should not be gone long. She had only a little call to make, and so on. The call was on Mr. Gurney. He had hardly done breakfast, when he was told that Mrs. Wharton wished to speak with him alone.

When he entered the study, Mrs. Wharton seemed to be as unready with her words as himself; and when he shook hands with her, he observed that her hand was cold. She said she was well, however. Then came a pause during which the good pastor was shifting from one foot to the other, on the hearth-rug, with his hands behind him, though there was nothing in the grate but shavings. Mrs. Wharton, meantime, was putting her vail up and down, and her gloves on and off. At last, with a constrained and painful smile, she said that she was really ashamed to say what she came to say, but she must say it; and she believed and hoped that Mr. Gurney had known her long enough to be aware that she was not subject to foolish fancies and absurd fears.

"No one further from it," he dropped, and now he fixed his eyes on her face. Her eyes fell under his, when she went on.

"For some time past, I have suffered from a most frightful visitation in the night."

"Visitation! What sort of visitation?"

She turned visibly cold while she answered, "It was last Wednesday fortnight that I awoke in the middle of the night – that is between two and three in the morning, when it was getting quite light, and I saw – "

She choked a little, and stopped.

"Well!" said Mr. Gurney, "What did you see?"

"I saw at the bottom of the bed, a most hideous – a most detestable face – gibbering, and making mouths at me."

"A face!"

"Yes; I could see only the face (except, indeed, a hand upon the bedpost), because it peeped round the bedpost from behind the curtain. The curtains are drawn down to the foot of the bed."

She stole a look at Mr. Gurney. He was rolling his head; and there was a working about his mouth before he asked —

"What time did you sup that night?"

"Now," she replied, "you are not going to say, I hope, that it was nightmare. Most people would; but I hoped that you knew me better than to suppose that I eat such suppers as would occasion nightmare, or that I should not know nightmare from reality."

"But, my dear Mrs. Wharton, what else can I say?"

"Perhaps you had better listen further, before you say any thing."

He nodded and smiled, as much as to say that was true.

"I have seen the same appearance on three occasions since."

"Indeed!"

"Yes, on three several nights, about the same hour. And, since the first appearance, my supper has been merely a little bread and butter, with a glass of water. I chose to exclude nightmare, as I would exclude any thing whatever that could possibly cause an appearance so horrible."

"What sort of face is it?"