i owe my readers an apology for introducing this chapter, inasmuch as it does not deal chiefly with my own experiences, but with two extraordinary sentences recently given, and made public through the press; though it is fair to say that i know something of the friends in the one case and the victims in the other of the prisoners who received those sentences. i have seen nothing during my personal experiences to cause me any misgivings as to the administration of justice. i have not seen people punished for crimes they had not committed, but i have seen a large number of prisoners discharged about whose guilt there was no moral doubt. it stands to the credit of our penal system that it is much easier for a guilty man to escape than it is for an innocent man to be punished. this is a just and safe position. i would like also to say that among all the sentences that i have known imposed upon prisoners, there have been very few—indeed, scarcely any—that i have thought did not meet the justice of the case. i have, therefore, no sympathy with the organized [pg 75]outcries that are from time to time raised against our judges and magistrates and the police. judges and magistrates are but human, and that they will err sometimes in their judgments is certain. we censure them sometimes because their sentences are too severe; we blame them sometimes because they have been too lenient; but it is always well to remember that judges and magistrates see and know more of the attendant circumstances of a case than the press and the public possibly can see or know. this knowledge, of course, cannot have any bearing on the question of guilt or innocence; but it can have, and ought to have, some effect upon the length of sentence imposed.
within limits, then, judges and magistrates must be allowed latitude with regard to degrees of sentence, for a cast-iron method allowing no latitude would entail a tremendous amount of injustice.
nine times out of ten, when a judge or magistrate errs in the imposition of sentence, he errs on the side of leniency, and it is right that it should be so. but an error on the side of mercy does not create a public sensation; and this speaks well for the public, for it is good to know that the community is better pleased to hear of leniency than of severity. nevertheless, an error on the side of leniency is an error, and may be followed with results as disastrous as those that follow from an error on the side of severity; for while those results are not so quickly palpable, they may be more extensive.
i want, then, in this chapter to select two[pg 76] sentences—one given by a judge, the other by a magistrate: the judge erring, in my opinion, on the side of severity; the magistrate erring, in my judgment, on the side of leniency.
neither of these sentences seems to have attracted public attention, though both are of recent date.
let me quote from a letter received on june 4, 1907:
"dear sir,
"i hope you will excuse me writing to you about my son, who is a young man not twenty-three years of age.
"he is a carpenter and joiner, and has a good little business of his own, with a shop and yard.
"on january 4, 1906, there was a burglary at the house next to mine, and in a fortnight after my son was arrested on suspicion. the people—very old friends of ours—being awake, heard voices, but did not recognize one of the voices as that of my son.
"at the trial there was no evidence produced to prove that my son was in the house. my wife and myself are prepared to say that he went to bed at ten o'clock, and that we called him at seven o'clock next morning.
"the jury brought my son in guilty, and the judge gave him fourteen years' penal servitude. the whole court was shocked; no one could understand it. i cannot understand it, for i have read many instances of real old criminals, after committing robberies, being sentenced to a few months or a year or so. but fourteen years for a young man! oh, sir, my family have lived in[pg 77] this old town for nearly three hundred years, and no member of it had ever been in a prisoner's dock till now. i have written to the home secretary, and his answer was that he could not at present interfere. i pray to heaven that you will be kind enough to write to him and beg of him to pardon my son. i am sending to you a paper with a full account of the trial.
"i remain,
"yours truly,
"x."
i have that paper now before me—the coventry times, dated wednesday, december 12, 1906. the trial took place on the previous friday at warwick assizes. taylor was charged with breaking and entering, and feloniously stealing twenty-four farthings, one gold locket, one metal chain, and ten spoons; to make assurance doubly sure, he also was charged with receiving the same property. taylor had been in custody since january 23, 1906. on december 7 of the same year he received his extraordinary sentence, after being detained in prison nearly eleven months. everything seems extraordinary about this case—the long delay before trial, the severe sentence, the trumpery character of the articles stolen. i express no opinion about the prisoner's guilt. some of the articles were found in his possession, and it was proved that he had been spending farthings. that the people whose house had been entered did not suspect the prisoner was clear, as they sent for him next morning to repair the door that had been broken. but, at any rate, the jury[pg 78] believed taylor guilty, for, without leaving the box, they gave their verdict to that effect.
one of the objects of the burglary appears to have been the acquisition of the silver teaspoons.
mrs. wilson, the prosecutor's wife, had been previously married to a man named vernon, and the spoons in question belonged to him. it was said that the friends of vernon wanted the spoons, and mrs. wilson admitted that "they would like them; but they had let her alone for twenty years."
these spoons disappeared. they were not found in taylor's possession, but someone had undoubtedly taken them. mrs. wilson stated in her evidence that after the burglary there was a piece of paper left on the parlour table, on which was written in pencil the words, "mrs. vernon, after twenty years"; but this paper was missing, and the prisoner's mother had been in the parlour and had seen the paper, which could not be found after she left.
whether taylor committed a trumpery burglary, or whether he did the thing out of mean spirit, or whether he was in collusion with others, does not matter very much. punishment he doubtless deserved, but fourteen years for a young man for a silly offence seems beyond the bound of credibility. but it is true; for in june, 1907, i approached the home secretary, begging for a revision of the sentence, and received a reply similar to that sent to the prisoner's father—that it was too early a date for interference. it is only fair to assume that the judge was in possession of knowledge that justified his words, if not his sentence, for in addressing the prisoner he[pg 79] said: "you have been convicted, and properly convicted; but i know the sort of man you are, from this case and from the fact that there is another charge against you in this calendar. fourteen years' penal servitude!"
i am not surprised to read that "the prisoner appeared to be stunned when he heard the sentence, and fell into the warders' arms who surrounded him!" i am not surprised to read that the prisoner's father and mother rose to their feet, and that the one shouted, "he is innocent!" and that the other went into hysterics; but i am surprised to read that an english judge could not allow something for parental feelings, and that he said fiercely: "take those people away!" and when the prisoner's father shouted, "i can go out, but he is innocent!" that the judge instantly retorted: "if you don't go out, i will commit you to prison." fourteen years for a young man of twenty-two! fourteen years for a first offender! it requires an effort to make oneself believe it, but it is a fact.
i should like to know what was at the back of mr. justice ridley's mind when he gave that sentence. surely he had some reasons that he, at any rate, considered sufficient to justify it. it is difficult to imagine what they were, for no personal violence had been offered, no firearms had been carried, no burglar's tools had been discovered. taylor was not even suspected of connection with any professional criminals. it was, moreover, the first time he had been in the hands of the police. taylor seems to have been industrious, for at twenty-two years of age he was in[pg 80] business on his own account. i can't help thinking that there was something wrong with taylor, some mental twist or peculiarity; for, admitting him to be guilty, he acted like a fool. to leave a piece of paper, in his own handwriting, referring to matters of which only intimate friends could have knowledge, was of itself an extraordinary thing; but to go spending openly at public-houses stolen farthings was more extraordinary still. so the responsibility for his conviction rests largely with himself.
but fourteen years even for a fool is unthinkable, and the responsibility for that rests with his judge.
this leads me to say that stupid and half-witted criminals are often more severely dealt with than clever and dangerous rogues. the former "give themselves away" in such sweetly simple fashion that they appear hardened and indifferent, and are punished accordingly. i am afraid, too, that sometimes judges and magistrates cannot attain to pauline excellence and "suffer fools gladly." hundreds of times i have heard the expression about someone who had received a severe sentence: "well, he deserved it for being such a fool!" even the public is more prepared to tolerate severe punishments for the men whose crimes savour of crass folly, if not of downright idiocy, than it is for dangerous, clever daring, and calculating rogues. my second example will tend to show that magistrates are not exempt from this kind of feeling, but when led by it, rush to the other extreme, and inflict no punishment whatever. the hearing of the case[pg 81] i am about to relate took place at tower bridge police-court in july, 1908.
a young married woman was charged with obtaining by false pretences ￡75 in cash and ￡15 worth of jewellery from an old woman who had been a domestic servant, but who at the age of seventy had given up regular work, and was hoping to make her little savings suffice for the remainder of her days. the prisoner was also charged with obtaining by fraud ￡10 5s. from a working man in whose house she had lodgings.
evidence was given that the prisoner had an uncle abroad, but nothing had been heard of him for a very long time. two years ago the prisoner spread a report that he had died immensely rich, and had left her thousands of pounds. in order to pay legal expenses, she said, she borrowed money from her aunt, an old woman of eighty. having exhausted her aunt's money, and leaving her to the workhouse authorities, the prisoner then proceeded to draw upon the retired domestic, who parted with every penny of her savings and her jewellery.
in due time she was penniless also, and had again to seek work, at seventy years of age, having no friends to help her. the prisoner then turned her attention to her landlord, and obtained ￡10 5s. from him; but he became suspicious, and wanted to see some documents or solicitors. she gave him the address of her solicitors in chancery lane. then he insisted upon her accompanying him to see them; he compelled her to go, and, on arriving, found the address to be a bank. the landlord then communicated with the police, and[pg 82] she was arrested. the prisoner admitted that the whole story was false, and that she was very wicked. it was stated in evidence that the prisoner had an illegitimate child, which she said was the child of a gentleman, and that she had persuaded a young man to marry her by promising him ￡300 from the child's father, when the wedding took place; but the young husband had never received the money.
the lady missionary told the magistrate that she had received a letter from the prisoner, whilst under remand in holloway prison, expressing her deep sorrow, and promising to work hard and pay the money back.
mr. hutton bound the prisoner over under the probation act! i wonder what was at the back of mr. hutton's mind when he practically discharged her.
if the probation act is to bring us such judgments as this, it would have been well if we had never heard of it.
i can imagine no more heartless and cruel series of frauds than those perpetrated in this case.
the prisoner seems to have pursued her victims with unerring instinct and skill: the old aunt was robbed and ruined; the old domestic, after a long life of hard work and economy, was robbed and ruined; then, with confidence in her own powers, she proceeded to rob her landlord. a continual succession of lies, deceptions, and frauds, extending over years! and then bound over! herein is a problem: if ten teaspoons, one metal chain, and one gold locket are equal to fourteen years' penal servitude, what are some[pg 83] hundreds of pounds, obtained by two years' fraud, and entailing the ruin of two decent old women, equal to?
the answer, according to the magistrate, is, nothing! a great deal has been said, and not without some show of justice, about there being one law for the rich and another for the poor. in this case it is positively true, though in an opposite sense to the generally accepted meaning of the words.
i have no hesitation in saying that if the prosecutors had been in more influential circumstances, and had employed a solicitor to put their case, the law would not have been satisfied by accepting the prisoner's recognizances. are we to accept the principle that punishment must be in inverse ratio to the seriousness of the offence? it appears so!
the innocent young man she decoyed into marriage has not received his ￡300—he never will—but he received what he might have expected, and at least he got his deserts.
i ask my readers to ponder this decision: bound over! i ask them to ponder this sentence: fourteen years' penal servitude! there is an eternity between the two sentences; the one is permitted to go on her guileless way. the other is sent to confinement, monotony, and degradation for fourteen years. the latter was at the worst a foolish, clumsy rogue; the other was a consummate and accomplished artist in deception.
whether the old women would have received any benefit from the imprisonment of the younger woman is beside the question. i am sure they will[pg 84] receive no benefit from her liberty, though she says she will work hard and repay them!
on what principle can she be called a first offender? if rogues are to be imprisoned at all, by what process of reasoning can it be argued that she ought to go free?
surely the time is come when other people as well as prisoners must be considered. what will be the effect of a judgment like this? it can have but one effect: it will encourage similar young women in their lives of deception and fraud.
i may here stop to ask whether a young man charged with similar offence would have been dealt with at tower bridge police-court, or at any other court, in a similar way. my own conviction is that he would not have been so dealt with.
this raises the question whether there is or ought to be equality, or something approximating to equality, of punishment for the sexes.
this being the day of women's rights, i would say that certainly there ought to be something like equality even in the imposition of sentences; but the law and its administrators do not hold this view. i do not remember any case of a man and woman being jointly charged, both being jointly and equally guilty, in which the man did not receive much the heavier sentence.
i can understand it in the case of husband and wife, for the law considers husband and wife as one; but, unfortunately for the husband, it considers the male person as that particular one. but, with regard to unmarried couples, i can see no general reason for severity to the man and leniency to the woman.
[pg 85]
at the risk of appearing ferocious, i must say that i was taken aback at the tower bridge police-court decision, for i confess that i would have preferred the magistrate giving the prisoner six months' hard labour, or sending her for trial before judge and jury. not that i want either men or women to be detained in prison—i hate the thought of it—but i happen to hate something else much more, and that is the idea that plausible and crafty young women can rob and ruin decent old women with impunity.
i hold—though in this i may be wrong—that if the law cannot compel fraudulent persons to restore their ill-gotten gains—and in the case of the prisoner at tower bridge this was, of course, impossible—then at least it ought to administer in such cases a decent amount of punishment. but the course adopted did not uphold the dignity of the law; it did not in the least help those that have suffered; it did not punish the prisoner; neither did it serve to act as a warning to others. but while, as i have previously said, justice is, on the whole, fairly administered, there is still a wide difference in the sentences given for like offences. the demeanour of a prisoner before the magistrate may easily add to or lessen the length of his sentence; crocodile tears and a whining appeal for mercy generally have an opposite effect to that the prisoner wishes.
a scornful, defiant, or violent attitude is almost certain to increase the length of sentence. the plausible, cunning, and somewhat clever man, who cross-examines with the skill of an expert, is sure to be hardly judged and appraised when sentence[pg 86] is given; but the devil-may-care fellow, who bears himself a bit jauntily, and who, moreover, has considerable humour and a dash of wit, is almost sure by a few witty or humorous quips to partially disarm justice and secure for himself more lenient punishment. i suppose we all have a sneaking kindness for the complete vagabond; we instinctively like the fellow who can make us laugh; we do not want to believe that the man who is possessed of humour is altogether bad, and when we have to punish him we let him off as lightly as possible. but the stubborn thick-head does not excite either our risible faculties or our heart's sympathy; nevertheless, that thick-head may be far less guilty than the complete vagabond—in truth, he is often a far better fellow—but his thick-headedness is against him, and we punish him accordingly. and here i draw upon my own experiences, for i have known complete vagabonds that were also absolute scoundrels, who, by their apparent candour, jollity, and flashes of humour, continually saved themselves from anything approaching long sentences.
one fellow in particular took at least twelve years in qualifying for penal servitude, though he was a thorough rogue and a vagabond absolutely. he was a printer and a clever workman; but he never worked—not he! he would steal anything. several times he had called on clergymen, and while conversing with them in their halls had appropriated their best silk umbrellas. on one occasion he had gone away without booty, but he returned five minutes afterwards, and rang the bell, which, being answered by the servant, he[pg 87] said: "i am very sorry to trouble, but i forgot my umbrella. ah! here it is." and he went away with the parson's best.
"give me another chance," i have heard him say. "you know you like me: i am not a bad fellow at heart." he saved himself from penal servitude many times, but he got it at last, after several narrow escapes.
one winter night i was told he was at my front-door, where he had been many times, for i never asked him in: i am sure he would have robbed me if i had. "well, old man, how are you?" he said, for he always patronized me in a delightful manner. "oh, it is you, downy, is it?" "ah, it is me. i say, holmes, i am starving!" "there is some comfort in that," i said. "bah! you don't mean it; you are too good-hearted. give us a cup of tea." i declined his invitation, and told him that i had no umbrellas to spare. "well, that's a bit thick," he said; "i did not expect that from you. well, i'm off." then, as an afterthought, he said: "what's the time?" "five minutes past six," i said. "why, i have been on this doorstep quite five minutes." "quite ten minutes," i said.
away he went to the parish clergyman, who did not know him, and delivered some imaginary messages from myself. he got two shillings and a meal from the clergyman.
to my surprise, i saw him in the dock next day, charged with stealing a valuable fur-lined overcoat. he had called at a gentleman's house to ask for employment. the servant had admitted him, and left him standing in the hall while she summoned the master. it was dark, but he [pg 88]discovered the valuable coat and put it on. there was no work for him, and the gentleman, who knew downy well, showed him out promptly. he afterwards missed his coat, and quickly gave information to the police. downy was as light-hearted as usual, denied his guilt, and closely examined the prosecutor as to the exact time he (downy) called on him. the magistrate, having had depositions taken, was about to commit him for trial, when the prisoner said: "i have a witness to call." "you can call him at your trial," the magistrate said. "who is your witness?" "mr. holmes." "what can he prove?" "that i was at his house at exactly the same time that it is said i was at the prosecutor's." i declined to give evidence, for i believed the fellow had the overcoat, though he was without a coat when i saw him. he was duly committed for trial, but before leaving the dock he turned to the magistrate and said: "you have made up your mind that i am to get five years, but you are mistaken this time: no jury will convict on the evidence." the grand jury threw out the bill, so i was saved the pleasure of giving evidence for him. in a few days he appeared at the court desiring to speak to the magistrate. when given the chance, he said: "well, i'm here again. i thought you might be pleased to know that no true bill was found against me; my case did not go to the jury. you haven't done with me yet." "i am sorry," said the magistrate. "but you will not be disappointed many more times. you will get your five years." "probably, but not at your suggestion. good-morning!"
[pg 89]
he was on my doorstep again that evening. "come to see you again, holmes, my boy. lend us half a crown!" i declined. "ha!" he said, "you would lend it me soon enough if you knew what a lark i have had. i can't help laughing. why, i have been to old —— and offered to give him back his fur coat for a quid." and the rascal roared at the thought of it. "what did he say to you?" "well, he rather hurt my feelings, for his language was not polite." "i suppose you have not restored it?" "what do you think?"
but downy got his five years within a few weeks. he removed a big marble clock from the bar of a public-house, and got away with it, too, in broad daylight; but fate tripped him at last, and he got his well-earned five years. as he is still under forty years of age, i have no doubt but that in prison his talent will be developed. not that he has much to learn, but even downy may gather a few wrinkles when given proper opportunities.
now, downy represents a very numerous class of men and women, though few of them have his cool assurance and originality, but, like him, live to a large extent by thieving and general dishonesty. these people can seldom furnish bona-fide addresses, or give any proof that they have been doing honest work. yet they go on from year to year, in and out of prison, undergoing small sentences—first a few days, then a few weeks, followed by a few months, then committal to trial, when sentences of one or two years are passed upon them. some of them, though their lives are devoted to criminality, never arrive at the dignity of penal servitude.
[pg 90]
with due respect, there is, i submit, even now room for improvement with regard to the infliction of sentences. a large amount of latitude must be allowed, for judges and magistrates ought not, must not, be automatic; a certain amount of liberty must be granted to them. but when that latitude includes the right and the power to give fourteen years' penal servitude to a young man of twenty-two for a trumpery offence, and that his first offence; when it includes the right and the power to practically discharge a clever and dangerous woman who has lived by fraud, and whose frauds brought untold suffering upon innocent and aged victims—when this latitude allows cool and calculating rogues to continue interminably their lives of roguery, alternated with very small and insufficient sentences, it is evident that the liberty and latitude allowed require in some way to be circumscribed.
judges and magistrates are human, and i for one would keep them human, with the power to sympathize and the power to laugh, for these things are altogether good, and to a reasonable extent it is right that these wholesome qualities should exercise some influence; but even these faculties require some restraint, or injustice instead of justice will be done. i am afraid there is some truth in what many discharged prisoners have told me—that the length of sentence depends on the whim of the judge, and that on some days it appears evident that a crumb of undigested cheese impairs the temper and judgment, and adds appreciably to the length of the sentences given.
if this is in the least degree true, it is a matter[pg 91] for profound regret. in spite of temper, pain, or indigestion, the balance of justice ought to be fairly held. i am glad to think that i have sometimes known pain and suffering to have the opposite effect when judgment has been given. a magistrate of my acquaintance, noted for good temper and courteous urbanity, was one morning in a very unpleasant frame of mind. everything went wrong with him, and, as a consequence, with everyone who had to deal with him. he was cross, peevish, and rude. the police knew it, for he was not civil to them; witnesses knew it, for he was rough with them. on one occasion when he had been at his worst he caught my eye. after the court was over he said to me: "you thought me very ill-tempered this morning?" "indeed i did, your worship, for you were rough to everyone." "ah!" he said, "i have neuralgia frightfully; i have had no sleep all night." i said: "i am very sorry, your worship; but i noticed another thing." "what was that?" "why, you let all the prisoners down lightly." "oh," he said, "you noticed it, did you? i had to let myself go sometimes, for i could hardly bear it, so i let go when it did not matter very much; but i kept a tight hand over myself when it came to sentences. i was determined that the prisoners should not suffer for my neuralgia."
he was wise, and he did nobly. it would be well if all our judges and magistrates kept a tight hand on themselves when it comes to sentences; for everyone must admit a cruel wrong is done when prisoners are awarded heavier sentences because the judge is either in ill-health or out of temper.