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

b-031111ff 42;ltit

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 farms 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. Ile 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.
Br. 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 prosecutio❑ 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 rained 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, hut
that that guilt should be established by clear and
unquestionable testimony adduced at the trial. The
" twelve peers," whose 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 BIRDS ; no doubt may exist in the
mind of any unprejudiced person ; but if that guilt
be not proved in due form of law, according to the
principles of evidence long established and fully re-
cognised by all our tribunals, he must be acquitted.
No alternative remains. The judge must charge the
jury, and they are bound to receive his inter-
pretation and exposition of the law. Other
criminals have, in like manner, escaped justice through
some defect in the chain of evidence, some link that
was wanting, but the judge could not be censured or
condemned on that account.
We know that it may be asserted, that
in many cases depending altogether on circum-
stantial evidence, convictions have been ob-
tained, although no living eyeewitness could depose
to the facts, and that such decisions have been con-
sidered perfectly satisfactory, 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, that the crime had been committed,

and.2adly, that it was perpetrated by the party or

parties in the dock. Now, in the present case, there
was a failure on both points. Mr. TURNER proved
that the external injuries of the head were the cause

of death, but " he could not form an opinion how that
violence had been inili.cted." It was perfectly possible
that the fatal blow n light not have been struck by

the prisoners, or either of them ; their innocence of
that, the cormurnirit.tion of their pH', was
perfectly consistent with his testimony, and
_ _

Mr. EDGE, the °the r medical witness, proved

" that a fall against a f ender might have produced the

wounds on the head." It was asserted, on the part
of the prisoners, and si •ith much apparent probability,
that such a fall had t.: .ken place, and it must be re

membered that, actor ing to the benign principles of
the British law, they could not be required "to prove
their innocence." St ancient for them, if the guilt
could not be establi shed by evidence, beyond the
possibility of any nth 41 doubt. \Vas not Mr, Justice