MR. COMMISSIONER KERR.
there is one man in England whom we ought not only 1 to admire but to envy, it is the Judge of the Sheriffs' Court of the City of London, the Commissioner at the Old Bailey. He is the only one who has fathomed the Bond Street mystery. The whole case of Madame Rachel and Mrs. Borradaile is clear to him, and he has been able to explain it to a jury. In a rapid address of two hours he swept away all the difficulties arising out of a five days' trial, all that had perplexed the keenest intellects. One happy phrase about a current of conscious humour reconciled all the contradictions in some fifty or sixty letters. The discovery, which was effected by the official sagacity of Mr. Under-Sheriff Roche, but was no doubt suggested by the judicial penetration of Mr. Commissioner Kerr, that all the letters bore the same water- mark was in itself conclusive. After that the jury had no alternative. The Commissioner probably saw that if they were allowed to debate the question for two or three hours, to weigh the probabilities of legal guilt and its absence, to dis- cuss the letters in which Mrs. Borradaile wrote to Lord Ranelagh about Lord Ranelagh, and abused Madame Rachel under Madame Rachel's dictation, the result might again be dubious. He remembered that the Recorder, who has always enjoyed the highest reputation as a criminal judge, had summed up for an acquittal, and had not procured it. Such a result could not but be unsatisfactory to one so clear-headed and impartial as Mr. Commissioner Kerr. As editor of Blackstone's Commentaries he must know the theory of English law, and if so, he must be trusted to expound it. The jury might shift the responsibility of deciding from their shoulders to his. The numerous quarrels he has had with the City, and with some at least of the Counsel who have practised before him, his late appointment of a Deputy Registrar who
has been twice bankrupt and has been expelled from the Incorporated Law Society, might assure him that the breadth of his shoulders had been fully tested. And, moreover, he had the Daily Telegraph with him. Our blatant contemporary boasts of " the part it has taken in bringing a most noxious criminal to justice,"—by publishing prejudiced sketches of the trial during its progress. We can hardly wonder that it should go on to support Mr. Commissioner Kerr's view of judicial duties. " In a case which is sure to attract public comment," it says, " a judge has always a great temptation to avoid the responsibility of expressing a distinct opinion on one side or the other." But Mr. Commissioner Kerr "did not shrink from pointing out to the jury that, being called upon to strike a balance, he found it weighed on the side of a conviction." Some may ask, by whom is a judge called upon to strike a balance. The answer in this case would be, that Mr. Commissioner Kerr was directed by his own legal lights and the Daily Telegraph. With such ap- proval he may go on safely. It will be all the more pleasing to him that both the guides are about on the same level. The statement of the Daily Telegraph that, owing to the over- whelming amount of evidence against the prisoner, the bur- den of proof rested in fact, if not in theory, with the defence, not with the prosecution, is worthy of being ranked with the Commissioner's conscious humour and the grand detection of the watermarks. If Mr. Commissioner Kerr had not edited Blackstone, and was not above the law, nothing could be more painful to him than to be praised for doing what was exactly opposite to his duty. Most judges would ask what they had done wrong if they found themselves puffed with such misguided extravagance. But we are sure that no such searchings of heart will occur to the learned Commissioner. We have shown already why ho is to be envied. There is a further point in his favour. One of his quarrels with the City has arisen out of his being required to sit at the Old Bailey, while be ought really to confine himself to the work of a County Court Judge. This may have seemed to him a good opportunity for gaining his end. If he wished to prove his unfitness for the place of a Criminal Judge, and to be relegated to the control of small debts and the atmosphere of small squabbles, he could not have acted more wisely. In spite of general envy and the applause of the Daily Telegraph, the verdict of the legal profession must be against a judge who springs a mine on the prisoner in his sum- ming-up, and who makes such a molehill as "Joynson, 1866," into a mountain of criminal atrocity. If a judge of one of the superior Courts had acted thus it might have been a matter for public inquiry. Had the trial been ono of life or death, there would have been a public outcry. But no one can have any sympathy with Madame Rachel, or regret that she should be secluded from the world for five or three years. And is it possible to find a single man who will either wonder or care at anything said or done by Mr. Commissioner Kerr The maxim "Dc miniatis 11011 carat lex" is not affected if for the law we substitute the public.
We discussed the legal aspect of the Rachel case so fully after the first trial that we must apologize for returning to it now. But though the facts brought out by the second trial add little to our former knowledge, the aspect of the case has shifted. The thirteen jurors by whom Madame Rachel was tried have pronounced by their verdict and by the sentence of their foreman that the Borradaile letters were written under the dictation of Madame Rachel, and under the impression that they were addressed to Lord Ranelagh. This is the real up- shot of the trial. We always thought that no one man who had read the letters could hold such an opinion. We now find that thirteen who profess to have read them do hold it.
The grounds on which they hold it are that the letters to and from William were written on the same kind of paper, and that one of the letters might have been meant for Lord Bane- lagh. The Commissioner says that a current of conscious humour runs through this letter, and that, of course, bears out the hypothesis that all the letters were meant for Lord Ranelagh. But how does it bear on the theory that the
letters were dictated ? Did the conscious humour belong to Madame Rachel or to Mrs. Borradaile ? This is a
point which the Commissioner has not explained. If the humour was Madame Rachel's, we can hardly think it answered its purpose. It certainly did not impose on the clearsighted
Commissioner and his fellows. If, on the other hand, it was Mrs. Borradaile's, what becomes of the dictation theory ? Mr. Commissioner Kerr has, no doubt, heard of the celebrated surgical operation required for getting a joke into a Scotch-
man. Perhaps he thinks that whisky, or Jordan water, or magnetic influence creates conscious humour in a self-confessed idiot. No doubt he is the best judge of his own meaning. But if we accept this explanation for the one letter, how does it apply to the rest ? The Pall Mall Gazelle gets over the difficulty by not reading the other letters, and by falling back on a theory of idiocy on the one side, and
forgery on the other. This, however, is a somewhat cursory way of dealing with the case, and leads us to the conclusion that if the Pall Mall thinks the letters not worth a perusal, they can hardly be worth an article. All who have read the case must see that the letters form the gist of it, and that, but for the letters, Mrs. Borradaile's story would be con- sistent. Her story would then come to this, that on the statement of Lord Ranelagh's love for her she gave certain sums of money to Madame Rachel. As it is, she proves that these sums were given to Madame Rachel, and she says that they were given on the strength of this statement. But in order to corroborate her own evidence she produces letters which she thought were written by Lord Ranelagh, and letters of hers are produced by the other side to show that the William whom she professes to take for Lord Ranelagh, and who she now says is wholly fictitious, was a real being, known to her, and was not Lord Ranelagh. Her answer to her own letters is that they were written under Madame Rachel's dictation, and it is pretty evident that many of Wil- liam's letters were written at Madame Rachel's. But supposing that William's letters were fictitious, does that prove either that Mrs. Borradaile attributed them to Lord Ranelagh, or that her answers were written to a fictitious person ? On this point each one must use his common sense. Can any one believe that a self-confessed idiot, imbued with conscious humour by whisky or magnetic influence, would write either to Lord Ranelagh what she knew to he false, or to a fictitious person what she knew to be inventions ? Would she write to either, "As before, I do not wish for any intrusion " ; " it is well known in Pembrokeshire that I have been living with you for some months " ; " I am quite sure Rachel would assist to transport you ;" "I am surprised to find your flannels should be worn out, though you have not had them six weeks " ? When taxed with the improbability of such things being written to a total stranger and a lord, Mrs. Borradaile says half of them were inventions, and that Lord Ranelagh might well be in want of money. But at the time when she wrote, as she says herself, she thought him a rich man. What she may have learnt of him since cannot affect the opinions she had formed at the time of writing. In the same way, her own statement that she had lived with a man is not the least touched by any of those indignant disclaimers which do not seem to have been uttered at the first trial, but may have been found safe before the second. If it be true that Mrs. Borradaile wrote such a sentence under dictation, though she knew it to be false, what safeguard have we now for the accuracy of her word ? She says, too, that she sometimes put in sentences of her own in the midst of those which were forced upon her ; that she sometimes improved a sentence, though Madame Rachel always dictated. If she had her wits about her to this extent, why did not she improve such sentences as these off the face of her letters ? She admits herself that no one besides Madame Rachel was present when the letters were written. Madame Rachel could hardly have checked any omissions or alterations in them, as she can neither read nor write. It is only fair to conclude that Mrs. Borradaile had her reasons for inserting such passages. If she thought that Lord Ranelagh, whom she described as a rich and good man, was in want of flannels and went to suspicious coffeehouses, all that can be said is that her ideas must have been strangely inconsistent. But this is her counsel's case. He goes even further, and tries to show that she is an idiot. Unfortunately he does not satisfy us that we can accept an idiot's word, and act upon it against evidence which may be tainted, but which makes up a plain and probable story.
So many people call upon Madame Rachel to account for her possession of the letters written to William, and still more to produce William, that we are bound to take some notice of that argument. If there is a William, it is clear that he has the best of reasons for keeping out of the way. Serjeant Ballantine said that if there was such a person, he must be known to Madame Rachel, and to a good many other people ; that even if he could not be produced, he might be identified. He must have been in constant communication with Madame Rachel, as all the letters addressed to him were sent to her care, and all the letters signed with his name were left in her
keeping. This would be true enough if the history of William must be either all true or all fiction. But it may be a com- pound of both. The letters to William may be genuine, as they bear that character on their face. The letters from William may have been made up or even dictated. Mrs. Borradaile on being asked how she explained certain passages in her letters said, "If you want to know what they mean you had better call William," and then at least she did not mean Lord Ranelagh. Now if William has disappeared some time ago, and neither Mrs. Borradaile nor Madame Rachel has been able to find him, we should be able to explain both the assurance of the one and the helplessness of the other. The correspondence might have continued after his disappearance. It is plain that Mrs. Borradaile's letters to him have remained at Madame Rachel's, and the inference is that he ceased to call for them. If it were true that the boy Minton, and Edward, and some of the daughters went on writing to Mrs. Borradaile in the name of William, there might have been some object in this, though it is not easy to define it. All these suggestions are no doubt unfavourable to Mrs. Borradaile. But that is the necessary result not only of her own letters, but of her evidence. We have not the slightest wish to repre- sent a complicated criminal trial as an affair between a pro- curess and a paramour. But before we think it right to convict Madame Rachel on a charge of obtaining money by false pretences, we must be satisfied that the one witness on whom the whole story rests is a credible witness, and that what she tells us is the truth, the whole truth, and nothing but the truth. This, indeed, is indispensable. We should like to have clever appeals to public prejudice laid aside, and to hear less of the dromedaries of the Sahara and the Jordan water. We should also like to have such a case tried by a judge, and if not by a judge, at least by one who has no bias, and who does not shy at the unusual gleam of his own cleverness. But for this we cannot hope so long as there are good judges of character at the Bar and bad advocates on the Bench, so long as a conviction is viewed as a gain by the counsel for the prosecution, and weak women are to be shielded from the consequences of their folly by new readings in the criminal law.
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