MR. JUSTICE WILLS'S CHARGE.
WE are not about to discuss the evidence in the Bartlett case. Twelve journalists, if they saw the witnesses, and were not too impatient to hear out the evidence, would, we dare say, make an excellent Jury in any criminal trial ; but •in the absence of the witnesses, and when the verdict has been given, it is not their business to retry the accused. At all events, it is not their business unless there has been some palpable failure in the trial, as happens occasionally when a prisoner is acquitted on the ground of insanity'; or unless the public safety is seriously compromised, as might happen after an acquittal for complicity in assassination by dynamite. In the present instance there was no failure in the trial, and there is no reason whatever for any public alarm. Mrs. Bartlett was tried with extreme care ; the facts against her were fairly
brought out ; the facts in her favour were made the most of, in a style which ought to make her Counsel's fortune ; the jury- men were unusually patient and attentive ; and the Judge charged in a speech which, if a little discursive, was a model of impartiality. As a result, the Jury found that, " although there are circumstances of grave suspicion attaching to the prisoner, we do not think there is sufficient evidence to show how or by whom the chloroform was administered ;" and had we been jurymen, and had thought that verdict legal—which it is not, for it is the Scotch verdict of "Not proven," and unknown to English law—we might have given the same verdict. It is opposed to sons of the evidence, but so would a verdict of " Guilty " have been ; there was room for reasonable doubt; and it is a principle of British law that such doubt should tell for the accused. The Judge approved the verdict, for he gave the jurymen the highly prized boon of exemption from service for five years ; the populace approved the verdict, for they shouted applause as indecently as if they had been in a theatre ; and we suppose the public approve the verdict, for they abstain from hostile comment.
We shall certainly make none, and not even join in the chorus of condemnation which is following the unhappy minister, George Dyson ; but we want to say a word on what strikes us as a singular occurrence, the inability of mankind to under- stand that historic document, " the Judge's charge." Mr. Justice Wills has the reputation of being an able Judge, and certainly has the power of expressing himself, especially in reprimand, with quite unusual clearness. He gave the closest attention to the case; he evidently tried to make his speech a model ; and yet we never find three men anywhere who agree whether he wished to acquit or to condemn the prisoner. The newspapers on the following day were all at variance about that; the Bar were puzzled about it to the last moment, especially when he made the remark about " severity " quoted below ; and since the trial, everybody, whatever his opinion, quotes Mr. Justice Wills as on his side. That is rare testimony to the impartiality of a Judge who said he did not think it his duty to give a " colourless " charge ; and yet to us it seems singular, too, for the charge, however frequently we read it, always leaves the same belief,—that the Judge was fighting down a strong impression, produced by the course of the trial, in order that the accused might have the full benefit not only of all facts in her favour, but of English law, and even English feeling about evidence. In other words, he tried to be absolutely impartial, and was misunderstood on all hands, possibly even by the Jury, because all men secretly expect a bias, even in a Judge's charge, and when they do not find it grow perplexed. In the very beginning of his speech, Mr. Justice Wills made a noteworthy observation upon the release of the Rev. G. Dyson, who had at first stood charged as an accomplice. According to the Times' report, he said :—" The Crown having done that, the case must be conducted, and as far as his observations were concerned it should be conducted, throughout on the view that Mr. Dyson was innocent. But none could doubt who had been present at the inquiry that if Dyson had been put in the dock, he would have had a great deal to get rid of which, if given in evidence against the prisoner, would have told with more or less fatal effect not only against her, but against him,—namely, the circumstances of suspicion under which he made the purchase of the chloroform. But now that he had gone from the case, and the prisoner was released from the stress and burden which would have told heavily on her, and in his opinion ought not to have told against the prisoner alone, he (Mr. Justice Wills) need not tell them that before the case came into court he had well considered that matter, and had come to the conclusion that the circumstances attending the purchase of the chloroform by Mr. Dyson could not have been excluded on the consideration of the case against the prisoner. If Mr. Dyson had not been released from suspicion by the act of the Crown, there would have been a set of circumstances which the Jury could not have got rid of. He could not help thinking that the course which the Crown had pursued, so far from having been of any dis- advantage to the prisoner, had been an immense gain to her, and it was also to her advantage that Dyson had been sub- jected to cross-examination." Surely, if words have meaning, those mean that had Mr. Dyson stood in the dock, the evi- dence against Mrs. Bartlett would have looked much heavier ; and this is also the meaning of the second allusion to the same facts :—" What was the history of that chloroform-bottle P Dyson undoubtedly procured the chloroform, he having his own private motives for wishing to please Mrs. Bartlett, and they could not say what they were. But he having been transferred from the dock to the witness-box, they could not allow evidence to be given to criminate the prisoner which would be equally fraught with suspicion against himself." The Judge, in fact, throughout excluded Dyson's evidence, either as tainted, or as telling against the accused in a way which could not be fair. He had been pronounced innocent; his evidence raised suspicion that he was not innocent ; he could not be innocent without Mrs. Bartlett being—as regards the procuring of the chloroform —innocent too ; consequently, it was most unjust that Mrs. Bartlett should be weighted with evidence against her which, as regarded Dyson, had been pronounced by the Crown worth- less or insufficient. Whether the Judge was right or wrong in that implied exclusion of evidence, it is not for us to question ; but that he meant to say this, and was governed by an even exaggerated desire for fair play, we have no doubt, any more than we doubt that his observations weighed heavily with tEe Jury, or that the crowd round the Court applauded the verdict because, to their rough sense of justice, it would have been monstrous to make such a distinction as an unfavourable verdict would have made be- tween the two persons originally accused. It is true that, while attaching such weight to this point, the Judge himself suggested the hypothesis most favourable to the accused,— namely, that Bartlett, eager for sleep, himself drank the chloro- form, a suggestion which, but for the pain that pure chloroform produces, would be infinitely more probable than the theory adopted by the counsel for the defence,—the theory, namely, of suicide. But the Judge was before all things trying to be impartial, and if, as he said, his own experience suggested that hypothesis—he himself having suffered enough at one part of his life from sleeplessness to know that the desire for sleep could become a passion—he was bound to mention his theory ; and he also suggested the heaviest hypothesis against the prisoner, that she might have blundered into success in the operation supposed by experts to be nearly impossible with adults,—that of administering chloroform in sleep. It was he who brought out alike her possible weariness of her husband, and her marked and unmistakeable devotion to him in his long and harassing illness. It was he who told the Jury to notice that the prisoner had pressed for a post-mortem ; and also he who said :—" The facts for the Jury were that chloroform was procured for the prisoner by her male friend, that her husband died from the effects of chloroform, and there was her own statement that the bottle was emptied and thrown away. They must exercise their own judgment on the facts of that bottle disappearing from the house after the husband's death, and no account being given of it by the person as to whom a satisfactory account would have been most material, as it would have dis- posed of the circumstances of suspicion. It was for them to say whether in their judgment the omission of that explanation was consistent with the prisoner's innocence." And finally, recol- lecting that the Judge spoke of the " severity " of his own charge, and told the Jury that he should not be sorry if they thought it too severe, we hardly see room for doubt that the verdict in his own mind was precisely the same as that of the Jury, of which he evidently, from the reward he gave them, definitely approved.
We do not approve " merciful verdicts " any more than "cruel verdicts," for both imply injustice ; but the impatience of merciful verdicts produced by doubt is, when the doubts are reasonable, mistaken. Juries should take responsibility, but their leaning to mercy when evidence is incomplete has exactly the same advantage as the institution of a Jury itself. It seems at first sight foolish to trust a decision on complicated facts to a knot of common men taken at haphazard, instead of to three Judges trained to consider character and experienced in life on a wider scale ; but there can be little doubt that the exceptional English confidence in the administration of criminal law, especially in capital cases, is due in great part to the inter- vention of a Jury. That social gain is, perhaps, the greatest gain that can come to a nation in its punishment of crime, and it is helped, we believe, by the total absence of callousness in juries. They feel greatly in a capital case, and that feeling, though it sometimes leads to unreasonable acquittals—we are not saying this one was unreasonable— deepens the public sense that those who ultimately acquit or convict are absolutely fair, or if they lean, do not lean to the side of convictions. Consequently, convictions are, in ninety
nine cases out of a hundred, satisfactory to the public con- science. We have heard savage remarks often upon acquittals, but in the last quarter of a century we cannot remember a con- viction which affronted the English sense of justice. There was a doubt about Muller for one moment, but it passed away on the scaffold.