# Once a Week (magazine)/Series 1/Volume 3/Assize intelligence—very ordinary - Part 1

ASSIZE INTELLIGENCE—VERY ORDINARY.
BY ALBANY FONBLANQUE, JUN.
CHAPTER I.
“Really, really, my lud,” expostulated the counsel for the prosecution, dropping his brief, and lowering his eye-glass, “there is so much noise, that I can hardly hear my own voice.”
“Chut! chut! chut! Si—lence!” exclaimed the Crier of the Court.
“If pipple want to talk, they’d better do ut outside,” observed one of the most good-natured and sensible of judges.
“It’s them ladies in the pink bonnets,” whispered the foreman of the jury to his next neighbour.
“Go on,” said the judge; and the trial, momentarily suspended by the reprobated twittering of idle spectators, was resumed.
Reader! listen unto the voice of wisdom, unto the words of Charlie Davis: “If ever you or your friends create a disturbance in a court of justice, or in church, or in a theatre, or concert room, or any other public place, and unpleasant observations are made thereon, turn round and stare angrily at some one immediately behind you. This will prevent you looking conscious under any reproof that may be administered to wrong-doers in general, and will divert attention from the real offender.” Charlie pursued these tactics upon the occasion above recorded with eminent success. The real culprits were the pink bonnets and their brother; but he rose and cast a glance of withering indignation at an elderly clergyman, who was seated immediately behind them, and whom the cry of “Si—lence!” had awakened from a sound sleep. All eyes were immediately turned upon the victim; and official heads were shaken reprovingly in his direction, to his intense discomfiture. Poor man! he knew that he had slept, and concluding, no doubt, that he had been snoring, accepted the popular reprobation with meekness, and soon afterwards sidled out of court.
Now the Wardleurs had always been very civil to Charlie when he came to Minsterton—the grand old city where, as everybody knows, the assizes for Sharpshire are held. Mr. W. was a county magistrate, and on the grand jury; but his daughters, the owners of the pink bonnets, indicated by the sharp-eyed juryman (what right had he—by-the-bye—to be staring at them, instead of attending to the evidence?), had never seen the inside of a court of justice, although they had lived all their lives in a circuit town. They could go at any time, and therefore never went at all; on the same principle that Londoners never visit St. Paul’s, or the Thames Tunnel, or the India House, or other semi-gratuitous exhibitions, to which their country cousins rush with such avidity, and “do” with so much resignation. So one morning Charlie volunteered to find the girls and their brother Jack (at home on leave from her Majesty’s Coke and Scuttle Office) good places to hear an interesting trial that was coming on the next day, if Mr. Wardleur would bring them with him in the morning. No sooner had they settled down into their seats, than they opened a fire of questions as to what was the meaning of this, that, and the other; Charlie’s answers to which, and a sudden exclamation from Jack Wardleur, brought down upon them (or rather their venerable scapegoat) the storm of expostulation with which this article commences. As soon as business was resumed, Davis handed the girls a slip of paper, on which he had written, “Watch, and listen; and I will endeavour to explain everything when we get home.” So they were as mute as mice during the remainder of their stay in court.
Now Grace and Mabel Wardleur were clever enough to know that they understood very little about what they saw and heard in Court that day, and were sufficiently well educated to be aware that there is no disgrace in asking for information. Jack’s “schooling” had cost his father considerably more than a thousand pounds, and the least that is said just at present respecting his college expenses will probably be the soonest mended. The subject is a sore one at Wardleur Chace. My young friend, however, passed a most satisfactory examination for the Government clerkship that he holds, having specially distinguished himself by his answer to the question, “What was the origin and practice of the Roman Bath?” together with his paper in reply to the demand, “State some of the principal Politico-Economic questions involved in the prosecution of the Second Punic War,” propounded by the Civil Service Examiners to test Jack’s fitness to copy letters (at a salary of ninety pounds a-year) in the “Coke and Scuttle Office,” relating to the coaling of Her Majesty’s ships of war. Still, I have found that his information about very ordinary things that were going on under his nose every day of his life was anything but extensive. “You see, old fellow,” he would say, “I’m pretty well posted up about the Greeks and Romans, and all that, you know; but we did not grind up these other sort of things at college, and, hang me, if I can make head or tail of them.”
I do not think that Jack and his sisters are the only people who have attended the assizes, now proceeding, and been unable to understand the proceedings they heard and saw—so why should I not make public the account that Charlie Davis gave of our criminal procedure in reply to the demands of his fair hostesses and their brother Jack.
“Well, where shall I begin?” asked Charlie, when he had rejoined the ladies after dinner.
“Begin at the beginning,” said Mabel Wardleur, taking up her work.
“But suppose I worry you with a lot of things you don’t want to be told?” objected Charlie.
“You can’t guess what we do not know unless we tell you what we do know,” said Grace, “and as we are not going to give you that information begin at the beginning, sir, as you were told.”
​“Very well, then,” said Charlie. “Be good enough to suppose that I am two justices of the peace, or one stipendiary magistrate; Grace here is my clerk, and Mabel is an active and intelligent police officer, who has taken Jack into custody. Her duty is to bring him before me as soon as possible after his apprehension, collect the witnesses, and state the case against him. My clerk, Grace, ought to take down the evidence in writing as it is given in open court, but I am afraid that she will not do so—I am afraid she will adopt the slovenly, and I think I may add illegal practice now in vogue, of cooking up the statements of the witnesses—called their depositions—in a little back room either before or after the case has been heard in court, so that the prisoners have no check upon the questions she asks. Be this as it may, I hear the case, and ask Jack if he has anything to advance in reply, cautioning him that he need not say anything unless he pleases, but that what he does say will be taken down, and may be used in evidence against him. If he be a wise Jack, he will hold his tongue; but the chances are that he will tell some stupid lie that—”
“Confound your impudence!” exclaimed Jack; “I”—
“Silence, sir! How dare you interrupt the court?” said Grace, placing a soft little white hand on his mouth.
“I repeat,” continued Charley, “that he will tell some stupid lie which will help to convict him. You know you will, Jack; nineteen criminals out of twenty do it. The prosecutor will state, that when you came into his shop and ran away with his ham, you had a black cap on; and you will get violently excited, and vow that you wore a blue one, thereby admitting the fact of your having been there, as though it really mattered what sort of covering protected your bump of acquisitiveness.”
“Well, you have had your say; and now I must adjudicate upon you, oh, misguided Jack! What have you been doing? You have been supping upon—say salmon—and returning home have created a disturbance in the streets. You are fined five shillings and discharged. You have picked a gentleman’s pocket of his purse, containing less than five shillings, and stoutly maintain your innocence, although your hand was caught with the portemonnaie in it, in the very act of spoliation. I deal with you summarily, and you will go and pick oakum for six months. You have stolen something worth more than a crown, but plead guilty, and ask to be punished at once. I will do so, Jack. This is your first offence, and I will see whether three months’ imprisonment with hard labour may not cause it to be your last. If, after this, you come again, Jack, or if the case against you be a doubtful one, you shall be committed for trial—to the session, if you have only been embezzling, or stealing, or obtaining goods on false pretences; but should you have been indulging in highway robbery with violence, or burglary, which, as you ought to know, Jack, means breaking into a dwelling-house between the hours of nine at night and six in the morning; or should you have married two wives, have set fire to a stack, or killed anybody,—why, then, for these and other charges of a serious nature, you shall be committed to the assizes, and my lords the Queen’s justices, and the jolly old Southern Circuit, shall come all the way from London to try you.”
“Stop a moment,” said Mabel; “your talking about your ‘jolly old Southern Circuit.’ as you call it, reminds me of a question I wanted to ask. What is the meaning of that queer little triangular patch which you barristers wear fluttering at the back of your gowns?”
“You must know,” replied Charlie, “that a barrister’s fee is not considered as a payment for services rendered, but is, in strictness, a present from his client, given, as the housemaids say, ‘quite permiscuous.’ Thus, in olden times, learned counsel wore a purse slung over their shoulders, so that when a client gave them a brief with one hand, he could quietly slip the fee into this purse with the other, without compromising their dignity. The triangular patch that we now wear is the relic of this purse. For many years fees have been paid openly; but to this moment the nature of the payment remains unchanged; it is a mere ‘honorarium,’ or gift, and cannot be recovered at law. In this respect a barrister and a physician are similarly situated.”
“Now to return to this misguided Jack of ours. He is sent for trial to the assizes, and it is your duty, Grace, as clerk to the committing magistrate, to return the depositions to the clerk of assize, in order that he may draw the indictment.”
“What’s that? A picture of him, that he may be known again?” asked Mabel.
“No, not that exactly, but a formal statement of the charge against the prisoner, engrossed upon parchment. You will see that this goes before the grand jury, which consists of me and twenty-two other highly respectable county gentlemen, summoned by the sheriff of the county. To you, Grace, is confided the duty of conducting the case against the prisoner, and you must instruct counsel to prosecute him. Should you have any doubt as to whom you ought to select, go and look at the list of the bar, which is stuck up outside the court, and turning to the letter D you will find ‘Davis, Charles—Mrs. Bull’seyes—No. 2, Barley Sugar Gate,’ the name and lodgings of a most promising young barrister.”
“Don’t talk nonsense,” said Grace.
“I never do,” replied Charlie, gravely. “The foreman of the grand jury,” resumed he, “is usually the most distinguished person summoned. I am the foreman of the grand jury. What is this that you have sent before me, Grace, thou relentless prosecutor of crime! A bill against John Wardleur, which runs as follows:
“‘Shropshire to Wit.—The jurors for our Lady the Queen, upon their oath present, that John Wardleur, late of Wardleur Chace, in the parish of Spinnythorpe, in the county of Sharpshire, labourer——’
“No, no,—hang it!” interrupted Jack. “Government clerk.”
“The law, my dear Jack,” replied Charlie, “has many fictions, perhaps the most absurd of which is that which makes it call a government clerk ​‘a labourer,’ whereas everybody knows he never labours. But to continue:
“‘——on the thirteenth day of February, in the year of our Lord One Thousand Eight Hundred and Sixty, being then armed with a certain offensive weapon and instrument, to wit a bludgeon, in and upon one Albany Fonblanque the younger in the peace of God and our Lady the Queen then being, feloniously did make an assault and him the said Albany Fonblanque in bodily fear and danger of his life feloniously did then put, and ten pieces of the current gold coin of the realm called Sovereigns, of the value of ten pounds, and one watch, of the goods monies and chattels of the said Albany Fonblanque from the person and against the will of the said Albany Fonblanque then feloniously and violently did steal, take, and carry away, against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her Crown and dignity’——
“Oh! oh! so you have been robbing our quiet friend here on the highway! For shame, Jack. I am now foreman of the grand jury. I examine the witnesses. I am sorry to say that they seem to make out such a case against you, that there being eleven jurors present who, with me, of course, form a majority of the twenty-three, I write the words—a ‘true bill,’ and sign my initials on the back of the indictment. You are not present, Jack, nor is evidence heard on your behalf at this investigation. It is only held to ascertain if there be good reason for putting you on your trial before ‘my lord,’ and if there be not, I whip out my penknife and cut the bill across.”
“And then what would become of me?” asked Jack.
“If no other bill were found against you, you would be discharged at the close of the assizes.”
“Having ‘found’ a batch of bills, I proceed with some of my brother jurors to the court and hand them to the clerk of assize. I do not trouble myself to select a fitting time for so doing—I care not to take advantage of a pause in the proceedings, during which I might despatch my business without disturbing other people at theirs. By no means. I like to come shouldering through the crowd of spectators, and clambering over the benches at the most interesting part of a case. If I can calculate the time when a defending counsel will have warmed into his speech, or when the witness is just in the middle of some complicated explanation; that is the precise moment for me to enter, to the disturbance of everybody, and impress the public with my vast importance, as evinced by my being able to be so discourteous.”
“That really is what the grand jury did today,” Grace whispered to her mother who had joined the party.
“I hand in my bills,” Charley resumed, “and our decision on them is read out thus:
“‘No bill against James Smith, for burglary.’
“‘A true bill against Henry Brown, for murder.’
“‘A true bill against Mary White, for bigamy.’
“‘A true bill against John Wardleur, for highway-robbery,’ &c. &c. And then, Jack, with Brown, White, & Co., is brought up into the dock to say whether he pleads ‘guilty’ or ‘not guilty’ to the charge.”
“But suppose he refuses to plead,” said Mabel.
“Then,” replied Charlie, “a jury will be sworn to try whether he stands ‘mute of malice,’ or ‘by the visitation of God,’ that is, if he be merely obstinately silent, or if he be incapable of answering, by reason of being deaf or dumb, or of unsound mind. If it be ascertained that he stands mute of malice, a plea of ‘not guilty’ will be entered for him, and the trial will proceed; but if he be silent by the visitation of God, so as to be quite incapable of understanding what is taking place, the trial will be postponed, and he will be remitted to some asylum. Thank your stars, Jack, that you do not live in the ‘good old times’ some people boast about. Your obstinacy would have been dealt with in a very different manner, then. A prisoner who refused to plead was sentenced to the ‘peine forte et dure,’ which was inflicted in different ways. Holinshed tells us that, in his time, the back of the criminal was pressed against a sharp stone till the pain made him plead. Other writers describe a sort of rack, which was used to conquer sulky persons, by dragging their arms and legs towards the four corners of the cell. The practice at the Old Bailey, in the reign of Queen Anne, was to fasten the prisoner’s thumbs together with whipcord, and to twist it tighter and tighter till the pain forced him to plead. In the year 1721 a woman, named Mary Andrews, continued so obstinate that three whipcords were broken round her thumbs, before she would say ‘guilty’ or ‘not guilty.’
“The most ordinary infliction, however, was by pressure. The accused was taken into the yard of the prison, laid upon his back, and weights of iron were placed upon his chest. He was allowed for food three morsels of the worst bread upon the first day, and three draughts of the stagnant water that was nearest the prison-door, on the second. The weights were increased every morning till he died, or, as the judgment ran, ‘till he answered.’ Sometimes a sentence of the ‘peine forte et dure,’ was equivalent to a sentence of death, so barbarously was it inflicted. In the year 1659, a Major Strangeways refused to plead when placed upon his trial for murder, and he was pressed to death in ‘eight minutes,’ many persons in the press-yard casting stones at him to hasten his decease.
“By an account of this execution, published in the fourth volume of the Harleian Miscellany, it would seem that the press was brought to a point where it touched the body, and that it was usual to place a sharp piece of wood under the victim to double his torture.”
“Horrible!” exclaimed Grace with a shudder; “but why did the poor wretches refuse to plead?”
“One of the principal reasons was, that a conviction of felony caused the forfeiture of all the convict’s goods. There was an old case in which a gentleman of property, who had murdered his wife and all his children but one, in a fit of jealousy, by throwing them from the battlements of his castle, and who was only prevented by a fierce ​storm from riding over to where the surviving child was at nurse, and killing that also—suffered himself to be pressed to death in order to preserve his estate for that infant.”
“Yes, and old Blueskin was pressed to death,” said Jack. “But I suppose you girls have not read Jack Sheppard,” he added, in a deprecatory tone.
“Stating the charge against a prisoner,” continued Charlie, “and taking his plea, is called ‘arraigning him.’ Should Jack be arraigned by a stickler for old forms, he will say to him, on his taking place at the bar, ‘You, John Wardleur, hold up your right hand.’ In obeying you will do three things, Jack. You will acknowledge your name to be John Wardleur; you will show whether or not you have been burnt on the hand for a former felony, and have therefore forfeited your ‘benefit of clergy.’ ‘A little learning’ was anything but ‘a dangerous thing’ in the ‘good old times,’ when criminals were branded; for if an unconvicted ruffian could write his name, he claimed his ‘clergy,’ and was handed over to the spiritual power, which would not have anything to say to him, and therefore he got off altogether. You must be much older than you pretend to be, Jack, if you have suffered the punishment of branding, seeing it was abolished before your dear mother was born. By holding up your hand, you show also that you are free in the dock; for the law of England will not allow the worst criminal to be fettered during his trial.
“The clerk of assize then continues, ‘You stand indicted by the name of John Wardleur, for that you,’ &c. &c., giving an abstract of the indictment. ‘How say you, John Wardleur, do you plead “Guilty,” or “Not Guilty?”’—not, ‘Are you guilty or not guilty?’ as some officials persist in demanding, for that is a question for the jury to decide. But whether he pleads ‘guilty’ or ‘not guilty,’ is a question for the prisoner himself; and in pleading ‘not guilty’ to an offence that he has committed, he does not, as some very worthy gaol chaplains affirm, tell an untruth. He merely says in effect, ‘Try me.’
“This ruffian, Jack, having pleaded ‘Not guilty’ with an impudent swagger, he is marched back into the prison, where he will wait till it comes to his turn to be tried. Had he lived in those ‘good old times’ before alluded to, one more question would have been demanded of him, viz., ‘Culprit, how will you be tried?’ We call a man who has been convicted of a crime a culprit; the old lawyers so styled one whom they intended to prove guilty; the word being a compound of cul (the first syllable in culpabilis, the Latin for guilty) and the old French word, prit (prêt), ready. The Jacks of those antique days might have had their choice of trial by battle or by ordeal,—the ordeal of fire if they were of high birth, the water ordeal if they were common people. If the former could handle hot iron without being burnt, or the latter could manage to float in deep water with their hands and feet pinioned, why then it was all right—they were ‘Not guilty.’ If battle were demanded, and, being a knight, the accused could unhorse the prosecutor, or make him cry ‘Craven’ in the lists; or, being a ‘vilain,’ and fighting with cudgels, he could so belabour him that he cried for mercy; or even could hold his own until the stars came out; his innocence was established.
“But suppose the accused was beaten?”
“Then his guilt would be manifest; at least, so thought our ancestors. But all this talking has made me so hoarse,” said Charlie, “that suppose I stop now, and we will try this miscreant, Jack, after tea.”
(“After tea,” dear Reader, means in our next or an early number.)
(To be continued.)