THE TREACHERY AND TYRANNY OF THE LAW. THE boasted efficacy
of our law fails on trial : it suffers the guilty to escape, it punishes the innocent. Those damnatory re- sults are brought about by a kind of adherence to certain rules, under favour of which the worst " precedent " overrules all reason, and routine all justice. An instance of each kind is under dis- cussion this week. The Morning Chronicle points to the fact that the decision by which the Whig Law Lords got off Mr. O'Con- nell, in 1844, is fructifying in the case of Mr. Duffy : the Daily News impressively narrates the case of William Henry Barber, who was wrongfully condemned, hindered from proving his in- nocence, and when at last he forces that innocence on the attention of the Government, is not restored to his social position by the formal annulling of the wrongous conviction, but graciously "pardoned" ! In both cases the vicious operation of the legal machinery casts a slur upon the nation. The relation of cause and effect was never clearer than it is in the relation of the O'Connell decision to the present state of the proceedings against Mr. Duffy. The O'Connell case was a very quintessence of technical absurdity. There never was the slightest doubt as to the facts, nor as to the law applicable to those facts ; the sole doubt was as to the technical validity of the legal instru- ments. The practice of the courts tends daily more and more to multiply the chances of technical error, by multiplying the at- tempts to attain an accuracy in the letter impassible to the con- struction of any language, living or dead. The Crown lawyers produced such a stack of legal documents, that it was all but impossible to help finding a flaw or so in the mass. The prisoner's lawyers dipped into it freely, and drew out objections by the handful, on which they appealed "in error" against the conviction and the sentence. The substantial question at issue was, whether the condemnation of certain " counts " in the indictment vitiated the whole sen- tence. The Irish Judges condemned particular portions of the indictment, but held the rest sufficient for sentence : on appeal, the English Judges condemned, not the particular portions, but other portions not condemned by the Irish Judges ; nevertheless, gravely ignoring the facts, they affirmed the sentence, on the pre- sumption that it had been delivered on the strength of the valid counts : the Peers, after solemnly asking the advice of the Judges, left the ultimate decision to the five Law Lords, although it was foreknown that the three Whig Law Lords, then in Oppo- sition, intended to vote so as to release the protege of the Whigs ; and they rendered their achievement additionally piquant by selecting new grounds of objection, touching the Jury panel, &c. As Judges of final appeal, they repeated the representations of the prisoner's counsel. However attained, the decision of the three Whig Law Lords was, that partial flaws vitiated the whole; so Mr. O'Connell came out of his prison with eclat. The facts on which O'Connell was arraigned were as clear as the fact that they were a violation of the law ; but his release was a defeat for Sir Robert Peel's Government. The defeat of Sir Robert Peers Go-
vernment has become a precedent for the Dublin lawyers under Lord John Russell's Government ; and the doctrine that an in- dictment must be perfection in every line threatens to shield Mr. Duffy from sharing the fate of Mitchel and Meagher, whose acts he made it a boast of sharing. The final result is a lottery, or rather a game of which the terms are positively to be settled by the counsel on both sides : it will be independent of the fact as to the guilt or innocence of the prisoner ; so much so, that that fact, it may be said, has ceased to be in issue. If Mr. Duffy fail to get off, it will be because the lawyers of the Crown combat his lawyers in a pettifogging game at legal quibbles. Who is Queen of England ? What are the hopes of the French " President "? What old gentleman lately prosecuted a young lady who liked his ring but not himself ? What was the crime of Charles Gavan Duffy ? Who is the most celebrated and philan- thropic of living culinary philosophers ?—Not one of these ques- tions is more difficult to answer than the other.
Is Duffy guilty ?—The door of his prison creaks on its hinges. Is Barber innocent ?—He has spent four years in exile, two in a place abhorrent to humanity.
The facts of this case are now patent to the public, and are recapitulated by the Daily News. One Joshua Fletcher, who described himself as a retired surgeon, filled up his leisure and his coffers by tracing the heirs to unclaimed dividends, and exacting from them a not unmerited reward. That employment he varied, when he found that true heirs were not forthcoming, by procuring false personation of the missing heirs. Such lucra- tive and hazardous practice he carried on for fifteen years, until 1844, the date of his detection. He had employed Messrs. Bar- ber and Bircham as his solicitors ; they, apparently, having acted regularly enough, and being deceived as much as any other per- sons. In the fatal case of " Ann Slack," Barber acted ; and when the accusation was first made, he very naturally if not pro- perly shrunk from inculpating a regular client. He was in- cluded in the charge, tried, and convicted on very doubtful evi- dence. Bail was refused; by which he was prevented from obtain- ing the evidence which has since established his innocence. He was transported to the most shocking of our penal settlements— Norfolk Island. He seemed to be followed by some malevolent persecution : any one who expressed belief in his innocence was looked at askance ; a letter representing his case and addressed to the Home Secretary, was found unnoticed in the department of the Comptroller-General of Convicts ; and attention was only paid to his condition, when the Reverend Mr. Naylor, one of the Chaplains of Norfolk Island, sent his own wife to England on the charitable mission of urging Barber's suit ! The excellent couple so far succeeded, that Barber received a " pardon," on condition of his not returning to his native country. He went to Paris, and there was able to institute such communications with home as completed the proof of his innocence, and at last he was uncon- ditionally " pardoned." The lawyers in the colony, the lawyers at home, the public, had anticipated the conviction of his inno- cence; his previous character had thrown the utmost discredit on the charges against him ; his demeanour under punishment ac- cords with the possession of a clear conscience ; Mr. Naylor has formally recorded this certificate- "Nod-olk Island, 3d Sept. 1845.
" In leaving the island of which I have now been for some years the Chaplain, I owe to public justice the duty of recording my full conviction of the perfect in- nocence of William Henry Barber, now suffering on it as a prisoner under a sen- tence of transportation. I have, with unceasing interest, followed up a series of inquiries into circumstances connected with his case inaccessible to the court by which he was tried, and many of which have subsequently occurred. In addition, I have heard the reluctant acknowledgments of Fletcher, the guilty originator of the frauds, establishing, beyond the possibility of doubt, the innocence of Barber. My efforts shall continue for his extrication. I deeply lament his truly wretched condition here, and would gladly have seen it ameliorated. I have never known a prisoner of the Crown who has been subjected to greater wretchedness: I re- joice to be able to add, I have never seen an instance of more dignified suffering, accompanied by invariably consistent conduct. It will afford me real pleasure to continue his acquaintance under happier circumstances.
(Signed) T. BEAGLY NAYLOR."
What a preposterous and stupid result is this " pardon"! The whole affair presents the injured man in a position of dignity ; the Government of the nation in one of meanness. Is it to re- main so ? Is this great nation to be retained in the meanest of all positions, that of refusing frank reparation for flagrant wrong —It can hardly be. If there is no present law or machinery by which Mr. Barber can be formally and solemnly restored to that social position of which he has been oppressively deprived, his case, the most flagrant, ought to be the last in which an innocent man is insulted with "pardon," the first provided for by a new law to bring such cases within the domain of justice. Indeed, no general law can fairly meet the wrong that has been heaped upon him through the obstinate neglect of the responsible authorities. Let them inquire, if they please, into any remaining doubt ; but having inquired, let full reparation for the injury to fortune and station be compensated with a generous usance.
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