The Sun.
London, England, 1850-04-04 00:00:00

itelling

LONDON, THURSDAY, APRIL 4, 1850.

We do not feel surprised at the indignation and
horror excited in the public mind by the escape of
the atrocious miscreants who tortured to death the
unfortunate child who had been entrusted to their
protection and care. We cannot be astonished that
some of our contemporaries, feeling that the majesty
of the law remained unvindicated while the perpetra-
tors, not of a single crime, but of a series of out-
rageous cruelties abhorrent to humanity, should be
dismissed from the bar of justice, unscathed and un-
punished, should have even censured the amiable and
accomplished Judge, who presided at the trial, for
his conduct on the occasion, apparently sheltering the
prisoners from the penalties due to their enormous
guilt. It was scarcely possible, when such heart-
rending and harrowing disclosures were published, to
enter into a calm and dispassionate consideration of
a case abounding with such revolting cir-
cumstances. Pity and sympathy for the in-
nocent and helpless victim were mingled with
horror at the crime, and hatred of the criminals,
and even with anger at all who stood between them
and the well-merited punishment of their crime. If
ever " Lynch-law" could be justified, it would be in
such a case. If ever arbitrary and despotic power
could be sanctioned, it .would be that prompt and
speedy retribution should fall upon the heartless and
inhuman delinquents. But "bad cases make bad
precedents," and the greater the atrocity of the
crime, the more essential is it that all the forms of
law should be strictly observed—that nothing should
be strained or perverted. If the letter of the law
could be disregarded—if the rules of evidence could
be dispensed with, even in such a case as that of the
BIRDS, it would no longer be an act of justice, but of
sanguinary and vindictive vengeance—not a well-
merited punishment, cutting off the offenders from
among the people, but a judicial murder, a blood-
thirsty sacrifice.
None could regret more deeply than ourselves the
result of that trial, none could feel greater horror at
the frightful brutality exhibited towards the unresist-
ing child. We spoke out plainly and distinctly
on the subject in the language of honest indignation ;
but we did not venture to impeach or censure the
conduct of Judge TALFOURD : we saw that he had
discharged his painful duty fairly and impartially ;
that he had abstained from letting his passion over-
rule his judgment, from " doing evil that good might
come of it." The highest and most essential attribute
of a member of the judicial bench is perfect calmness
and impartiality ; he should exhibit a stoical indiffer-
ence to everything beyond the limits of his duty : he
is not the maker, but the sworn expounder and in-
terpreter of the law ; and never would the ermine be
more sullied than if the presiding judge should suffer
himself to become the evident partisan or impetuous
advocate of either side.s He may regret his limited
power, he may feel the most lively sorrow for the
judgment he may be called upon to pronounce, but he
must not waver or hesitate—the path of duty lies
before him, and he must not allow himself to be
seduced or to deviate therefrom by any temptation
however potent.
Even while our passions were excited, while we
participated in the feelings of those who, on hearing
the verdict of acquittal, shouted with indignant hor
ror—" What, are these persons to escape entirely
without punishment ?"--we rendered justice to the
presiding Judge; we saw that he had exhi-
bited the highest quality of his distinguished
office, that he had arrived at a decision which, we
have no hesitation in saying, would be in accordance
with the calm and deliberate judgment of every one
of his judicial brethren, and of all accustomed to the
practice of the criminal tribunals of the country. We
saw, with regret, that others took a different view ;
but that we were not mistaken will, we think, appear
from the letter of an eminent barrister, present in
court during the investigation, which appears in an-
other part of this day's impression, but of which
the insertion was overlooked by a morning contem-
porary.
Mr. BALL'S vindication of Mr. Justice TALFOURD
is so complete and satisfactory, and so fully bears out
the opinions to which we gave expression in The Sun
of the 26th ultimo, that it may appear an act of su-
pererogation to offer any additional observations on
the point. He, a gentleman of long standing and
great experience in his profession, declares that "he
heard the material part of the statement of the mother
of the poor girl, and from thence the whole of the
case, to the close of the evidence of Mr. TURNER, the
surgeon, and he then left the court with a deep im-
pression on his mind, without hearing the defence or
the observations of the Learned Judge, that the case
on the part of the prosecution had wholly failed in
bringing home to the prisoners the infliction of the
blow which was the• cause of death, and he stated his
opinion to one or two friends near him at the time."
Such testimony is, indeed, conclusive. It must fully
and completely exonerate the Learned Judge who
presided from every suspicion of having.been actuated
by any " maudlin sympathy" with the offenders, or
any weak and timid. departure from the stern path of
duty. To add anything thereto may appear an attempt
"To gild refined gold, to paint the lily, or cast a perfume
on the violet,"
We cannot, however, refrain from adding a few con-
siderations on the legal part of the case.
It must be borne in mind that the very foundation
and basis of trial by jury—the palladium of British
liberty—is, that it is not sufficient that the jury
should be convinced of the guilt of the prisoner, but
that that guilt sho mid be established by clear and
unquestionable testi re ony adduced at the trial. The
"twelve peers," win rae unanimous decision is essential
before any man can. be considered guilty in the sight
of the law, are sworn " a true verdict to give accord-
ing to the evidence!' The party may be guilty, as
in the case of the 8.03 DS ; no doubt may exist in the
mind of any unprejudiced person ; but if that guile
be not proved in dric form of law, according to the
principles of evidel tc:e long established and fully re-
cognised by all our tribunals, he must be acquitted.
No alternative rem.Klns. The judge must charge the
jury, and they are bound to receive his inter-
pretation and exp osition of the law. Other
criminals have, in lila manner, escaped justice through
some defect in the chain of evidence, some link that
was wanting, but ,e judge could not be censured or
condemned on that :account.

We know that it may be asserted, that
:n many cases dep .!nding altogether on circum-

stantial evidence„ convictions- have been ob•

wined, although no, living eyewitness could depose

:o the facts, and that such decisions have been con-

sidered perfectly st isfactory, and in strict accordance
with the principles .of the law. Granted ; but yet the
testimony must be :such as to lead to the irresistible

inference-Ist, thf it the crime had been committed,
and 2ndly, that it; was perpetrated by the party or

parties in the dock.. Now, in the present case, there
was a failure on ho th points. Mr. TURNER proved
that the external iz 'juries of the head were the cause

of death, but " he ef mld not form an opinion how that
violence had been licted." It was perfectly possible
that the fatal blow : might not have been struck by

,he prisoners, or ea her of them ; their innocence of

;bat, the consult mation of their guilt, was

perfectly consistent

with his testimony, and

kr. EDGE, the 4 her medical witness, proved
" that a fall against-; a fender might have produced the

wounds on the hea, 1. " It was asserted, on the part

of the prisoners, ar Ld with much apparent probability,
that such a fall hi id taken place, and it must be re

membered that, ac carding to the benign principles of

the British law, th ey could not be required "to prove
:heir innocence." Sufficient for them, if the guilt

could not be est: iblished by evidence, beyond the
possibility of any r stional doubt. Was not Mr. Justice

TALFOURD then justified in saying, "that there was
no proof of the cause of death." Even if it proceeded
from a blow, " there was no proof of who it was that
gave that blow." It was very true that they might
suspect that it was given by one or other of the pri-
soners, but, in the absence of all proof, he could not
direct them that there was evidence to fix it upon cne
or the other. What alternative then remained for
Mr. Justice TALFOURD ? How could he, as Mr.
BALL fairly inquire; "as an honest and impartial
judge, have acted otherwise ?"

That he did not sympathise with the crimi-
nals, or rejoice at their escape from justice,
may be gathered from this, that he said,
" the case was one which presented consi-
derations which, he confessed, made him regret that he
was not in a condition to place it (i. e. the cause of
death) before them, and he GREATLY DEPLORED that
the case was of necessity left in that imperfect state
that he could not direct them that there was evidence of
either prisoner having inflicted the blow." Surely a
stronger or more explicit condemnation of the con-
duct of the prisoners could not have proceeded from
the bench of justice, and would not be in accordance
with the calm, dignified, and temperate language that
should ever fall from a judge of the land. It must
completely remove any erroneous impression that
might have been created by the, perhaps, unfortunate
expression, "chastisement of which he did not ap-
prove." A judge, however, could not before convic-
tion make use of the strong and energetic terms
that might be becoming on the part of an advocate.
It has been asserted that there was some analogy
between the present case and that of the MANNING 4,
who justly expiated their guilt upon the scaffold.
This is, however, a grave mistake. PATRICK
O'CONNOR was murdered under circumstances that
clearly indicated a guilty knowledge on the part of
both the prisoners, and a predetermination to deprive
their victim of life. The grave was dug beforehand
to receive his lifeless body. One had purchased, the
other had paid for the instrument with which the earth
was dug up, and with, which the skull of the deceased
was battered in. Everything showed pre-arrange-
ment and concert between the guilty pair ; but was
such the case in the present instance ? Both had
chastised, cruelly and brutally chastised, the unfor-
tunate child, but it did not appear that the floggings
that were brought home to the prisoners, collectively
or individually, were the cause of death. The fatal
blow " might have been occasioned by a fall upon the
fender," or it might have been inflicted by one, in the
absence and without the knowledge or consent of the
other. We fearlessly assert, that it is an undoubted
principle of law, that if it be clearly shown that one or
the other of two persons are guilty of a crime, and it
cannot be established by evidence which is the delin-
quent, both must be acquitted. Were it otherwise the
principle of the law, that "it is better that ninety-
nine guilty persons should escape than that an inno-
cent man should be unjustly convicted," should be
reversed, and juries should be directed, if they enter-
tain any doubt, to give the benefit thereof to the
Crown, and against the prisoner.
One point alone remains which it may be desirable
to notice. It is said that it was proved that " the
death was concealed by the prisoners for some time
after it occurred, and that such suppression and con-
cealment afforded strong presumptive evidence of
their guilt." Admitting, for the sake of argument,
the premises, we deny the consequence; the deduction
is by no means decisive. It is possible that even
innocent persons might hesitate to reveal the death of
a person where a strong suspicion to their prejudice
must necessarily be excited. The concealment might
form an additional circumstance corroboratory of
their guilt ; but taken per se, and unless the cause of
death was clearly established, that it was, in fact,
shown that a murder had been actually committed, it
could have no effect on the verdict of the jury.
The monsters are not, however, to escape altogether
with impunity. They are, it appears, to be prose-
cuted for the assaults that were clearly brought home
to both, and, as the skin was broken by formidable
weapons, the intent to commit grievous bodily injury
may be established. They will thus, in all human
probability, ultimately suffer severe, although most
inadequate punishment—sufficient to deter others,
who may be entrusted with the care of helpless
orphans, from indulging their fiendish passions and
inhuman cruelties. And, for this result, the public
are probably indebted to the amiable and Learned
Judge, whose conduct has been so unfairly and un-
generously misrepresented.

Do the fanatics really wish to render religion
repulsive, and that golden day of the week, Sunday,
an object of scorn and abomination ? If such is their
detestable aspiration they are pushing on in a fair
way, and a foul way too, to realise their wishes, and
to make their efforts successful. Before these wretched
men proceed further in their unholy and demorali-
comment very briefly upon
zing work, we would
some of their most recent proceedings. Our columns
of this evening are disgraced by certain reports of
the latest doings of the Scottish Sabbatarians, which
we are nevertheless reluctantly compelled to republish
with a view to their more general exposure. From these
accounts, already commented upon in terms of just
indignation by sundry of our provincial and metro-
politan contemporaries, it will be observed that the
saints have made another most futile and abortive
effort to cram their disgusting dogmas down the
throats of an unwilling population. A line already
notorious for its association with the cause of this
glaring and stilted hypocrisy was again brought under
the consideration of the public as affording about the
best opportunities for transformation into a sort of iron
tram-way to heaven ? Need we say that this line was
the Caledonian Railway ! Need we reiterate the
particulars of cant and humbug which have been
preserved for perusal by the pencil of the reporter ?
Heaven forfend. They may be found elsewhere labo-
riously specified. It may there be perceived, that
some of these abominable Sabbatarians dared to take
upon themselves: an exclusive and intimate acquaint-
ance with the Divine Economy—standing forward, to
our thinking, in a somewhat more impious
attitude than that assumed by those pert quibblers
upon ethics who are sometimes prosecuted as
blasphemers—telling us (as if they had been rapt up
to a celestial conference in the thunder-clouds of
Sinai) that the potatoe disease and its consequent
famine were the results of Sunday travelling. Were
the quondam Member for Oldham now living, or the
former browbeater of the Lord Chancellor ELLEN-
BOROUGH, and were either of those sagacious and
plain-spoken men commenting upon this occur-
rence, they would designate Mr. MEIRLEITAAI
e
thes elf, pbeyrsoatbewhobluathtus
epithet
tl
ofto a express
blasphemerhim-
self,
against PROVIDENCE. Why, as our contemporary the
Examiner very pertinently remarks—" Last harvest
was one of blessed abundance, even though p
e
sought fresh air and cheerful scenes, or visited the
sick, or distant friends and relatives, on Sunday !"
But this is only one out of the many miserable argu-
ments brought forward with such an air of unendur-
able dogmatism by the canting directors of the Cale-
donian Railway, the advocates and apostles
of Sabbatarianism. Mr. _MEIKLEH.4I.I bolsters
up his sanctimonious proposition by the
pretence of a sort of a divine revelation ; but Mr.
M'Micxisa, travestied the proverbial shrewdness of
his countrymen in matters mercantile by blending
his appeal to piety with an appeal to the pocket. He
tries to reduce morality to a sum of subtraction,
taking no dogmas ae his dividend, and no virtues as
his quotient, but expounding to us the ordinances of
the Evangel as if they were subordinated
to the rules of arithmetic. Then, again, Mr.
Mum undertakes to demonstrate that the
annual amount of collisions and other kinds
of railway accidents might be materially
reduced through the suppression of the trains
hitherto employed by way of conveyance on the
Sunday. While an enormous amount of odium is
endeavoured to be cast upon the English multitude
for the demoralising example set to their northern
neighbours by the continued running of Sunday
trains along divers trunk lines and branch railways
south of the river Tweed. So the sin is ours—the
sin is England's—the sin of maintaining a means
of communication throughout this island as
well on Sunday as on Mondays, Tuesdays,
Wednesdays, Thursdays, Fridays, and Saturdays !
We wonder how many Scotch people have availed
themselves of the Sunday trains of England—not for
the purpose of visiting the beds of death or of sick-
ness, for the performance of one or other of the