Misjudged Murderesses 1: The Legal system 1840 -1890

This is the first of a series of three guest articles researched and written by my friend Stephen Jakobi.

This is Stephen’s bio : “My strong belief in justice led me to become an English trial lawyer (Solicitor). In 1992 I founded the Human Rights Organisation Fair Trials International, giving me worldwide experience in unfair trials. Upon retirement I started examining bygone trials of females for murder in the United Kingdom. In my book misjudged murderesses (Pen and Sword, England) I took a forensic approach to examine the lives and trials of these eight women who were wrongly convicted and sentenced to death. With the aid of primary sources, and in three cases the ready assistance of descendants and local journalists, I demonstrate the unfairness of their convictions even by the standards of the time.”

In this series the cases of eight women unfairly sentenced to death for poisoning between 1840 and 1890 are examined.

Year of Trial	Name	Alleged crime	Result
1849	Mary Ball	Murder of Husband	Hanged
1851	Sarah Chesham	Attempted Murder of Husband	Hanged
1851	Anne Merritt	Murder of Husband	Reprieved
1852	Sarah Barber	Murder of Husband	Reprieved
1868	Priscilla Biggadike	Murder of Husband	Hanged
1875	Lizzie Pearson	Murder of Uncle	Hanged
1884	Mary Lefley	Murder of Husband	Hanged
1889	Florence Maybrick	Murder of Husband	Reprieved

Hyperlinks in the above table take you to the original Capital Punishment UK article on the case.

Background.

Whilst it would be wrong to criticise their trials by the standards of today the basics of modern trial were already in place in theory by 1840. The presumption of innocence and, the right of the jury to determine the facts beyond reasonable doubt were established.

This article should be considered a legal companion to the Capital Punishment UK article arsenic poisoning.

In all the poisoning cases of the Victorian period there is no record of the jury deciding to acquit the defendant against the wishes of the judge as expressed in his summing up. They did what they were told. The judges were responsible for a fair trial and totally in charge for what happened as a result. These accused were all literally misjudged.

The Police

In 1840 the system was a voluntary one; each group of county justices of the peace could take the decision whether to adopt it. If they decided to do so they could appoint a chief constable and decide on the number of constables. A superintendent was to head each division and a deputy chief constable was to be appointed from amongst them.

Police constables were expected to be able to read and write, and were generally paid about three times as much as an agricultural labourer. Those recruited who were over 40 were appointed superintendents and tended to come from the military. Promotional exams were instituted in 1861; sergeants took an examination in charge sheets, summons returns, and the classification of different crimes under appropriate headings. During the early part of the period, superintendents were responsible for detection. Specialist police detectives were unknown until the late 1840s in London and spread slowly outside. The police force was male and they were reliant on their wives for dealing with women, e g. Mrs. Clarke wife of Superintendent Clarke was brought in to search Sarah Chesham, and gave evidence.

The right of suspects to refuse to answer questions before trial was not codified until 1912. Throughout the period, while torture had been banned, the mistreatment of silent suspects to induce a confession was common and the refusal to answer questions was used as evidence against them. In effect, the working class illiterate, especially females, were at the mercy of the unskilled police.

Inquests

By the nineteenth century the main function of inquests was the prompt investigation of unexplained deaths.

A coroner and jury viewed the body of the deceased, examined witnesses, and reached conclusions about the cause and manner of death – whether natural, accident, suicide or homicide. If they decided it was Homicide they could name the perpetrator which started off the judicial process.

Inquests were supposed to be held in cases of death from obvious violence or which occurred in prison, but for other potentially criminal cases coroners could not act until formally notified by a member of the public. The system came to rely on parish officers to act as middlemen between local inhabitants and coroners who might live many miles away. Once the necessary notification had been made, the coroner was legally obligated to hold an inquest. Inquests incurred costs which it fell to the counties to reimburse.

The coroner, usually a local lawyer, was paid per inquest until 1860, when coroners became salaried officials. Parish officers were paid for notifications, summoning witnesses and jurors, renting premises and arranging inquests. Some costs were easily eliminated. In particular, inquests were almost invariably held in a local tavern. The landlord regarded the free availability of their largest room as excellent business: jury, witnesses and spectators found inquests thirsty work and strong ale flowed freely.

The inquest jury were, throughout the period, male and middle-class. The mantra supplied by the local press to describe an inquest was that it was held before the coroner and ‘a respectable jury’.

Magistrates

The next stage in the progress of a capital case was a hearing before the local magistrates. Justices of the peace were appointed by the Crown for each county and for some boroughs. London was different: the City had its own system whereby the Lord Mayor and aldermen were ex-officio justices and outside the City there were nine police stations to which professional lawyers – stipendiary magistrates – were attached. By an 1839 statute they had to be barristers of at least seven years standing, and had the powers of a bench of two or more lay magistrates, and were paid £400 a year. Over the period the salaries increased. Some towns had a stipendiary magistrate: Salford and Manchester were early creators of the local office, but again, since the boroughs had to bear the cost there were still only a handful of stipendiary magistrates outside London by 1890.

Magistrates were selected by the Lord Lieutenant of the County and appointed by the Lord Chancellor. By an act of 1723 county justices with certain exceptions (such as C of E Vicars) had to own or occupy land in the county worth a hundred pounds per annum: as a consequence the county magistracy was the preserve of the landed classes. The appointments were often political and favoured Conservatives.

The Grand Jury

Proceedings at assize, since all capital cases were reserved for a High Court judge or a commissioner specially appointed with the powers of the High Court judge, always began with consideration of a bill of indictment (formal charges to be considered against the defendant). “The Grand Jury was the filter whose purpose was to throw out weak and baseless cases. Only a Grand Jury could find a bill of indictment and a prosecutor seeking a bill had to lay his evidence before it for its scrutiny.”

It consisted of not less than 12 and not more than 23 jurors and reached its decision by majority vote. The Assize Grand Jury was drawn in the main from the county magistracy and they were indeed grand – in the Biggadike case everyone on the jury was entitled to the title ‘Esq’. It included the local MP and the foreman was a Baronet!

At the start of the session for which they had been summoned, grand jurors would be sworn and the judge would then deliver his charge to them, in which he would give them legal directions about any case likely to give difficulty. In the Biggadike case the judge not only had made up his mind about Biggadike, but virtually directed the Grand Jury to discharge Proctor so that he could give prosecution evidence against her.

The witnesses in the various cases would then be sworn in batches in open court, and sent to the Grand Jury room to wait their turn to be examined by the jury. Examination was conducted in private and in the accused’s absence. If in the case the jury was satisfied that there was prima facie evidence of guilt, they would endorse the bill ‘true bill’ and it would be carried into court to be tried. If they were not satisfied, it would be endorsed ‘no true bill’ and the

accused would be discharged.

It was not until the twentieth century when Grand Juries were finally abolished in England and Wales. As all fans of American legal dramas on television are aware, the Grand Jury lingers on in the United States but at least it’s not presided over by the trial judge.

The right to counsel

The Prisoner’s Consul Act of 1836 gave the right to counsel provided the accused could pay for him. But the act did not give the defendant’s counsel the right to have the last word – they could only examine and cross-examine witnesses

Legal representation of poor defendants at trial

For the vast majority of defendants on capital charges the act was irrelevant since they could not afford counsel. According to The Times of 26 July 1841, the 1841 Summer Assizes contained 12 cases and in only one did the prisoner have counsel.

Assigning counsel was a practice developed by judges as a means of ensuring that prisoners facing grave charges did not go undefended for want of means. The judge would ask one of the counsel present in court to undertake the prisoner’s defence, a request never in practice refused. By 1870 it would appear rare for counsel not to be assigned in a capital case.

However, last-minute assignment of counsel made for poor defences. He had generally to pick the case up as he went along, there being no brief. Access to the depositions in a few minutes before he was due to confer with the client was all that were allowed and he could not get enquiries if they were needed to be made because he had no attorney to make them.

The cases under discussion here varied.

Mary Ball, was defended by two barristers, Millar and Denison, who were paid from public funds.

Sarah Chesham, for her first three trials was defended by Sgt. Jones and paid for out of public funds. She was unrepresented in the final trial where she was convicted of attempting to murder her husband.

Lizzie Pearson - at the request of the judge, counsel agreed to conduct the case on her behalf.

Mary Lefley was properly defended by a QC and solicitor.

Ann Merritt was unrepresented.

Sarah Barber had last-minute counsel.

Florence Maybrick, was represented by Sir Charles Russell QC and a top legal team.

The judges

At the start of the century the 12 common-law judges essentially presided over all capital trials. Outside London from 1840 onwards only judges who held full-time appointments presided and it is notable that they were principally civil judges. By the end of the century the number of common- law judges still stood at 15. The power of appointment was split between the Prime Minister and the Lord Chancellor. The former appointed the Lord Chief Justice and the Chief Justice of the Common Pleas, the latter all the other common-law judges. Under the Act of Settlement of 1701 a judge once appointed was only removable on a joint address by both Houses of Parliament. No English High Court judge has ever been removed. A judge could go mad in office, as Mr. Justice Stephen did in the Maybrick case, and was still allowed to try important cases until he could be persuaded by his colleagues to retire.

Without any form of appeal from their decisions, and a Home Office that disregarded any recommendation from juries in favour of the trial judge’s opinion, they were on the whole living examples of Lord Acton’s dictum “Power tends to corrupt and absolute power corrupts absolutely.”

The judges’ behaviour in the cases under examination here demonstrate the problems this created for the entire Victorian criminal justice system.

In Sarah Chesham’s second trial, having been tried for attempted murder the most recent penalty was a maximum of life imprisonment. The judge abandoned the basics of legal construction, where a newer act dealing with the same offence supersedes older legislation, to sentence her to death. He also took into account two previous charges of murder upon which she had been tried and acquitted. No one corrected this blatant abuse of the law.

In the end they were all convicted under the system in practice as opposed to theory – the misogynistic bias of the legal process. The entire legal system during the Victorian period was exclusively male, middle-class and therefore had prejudices against the working class women who were usually sole defendants before the court at trial. Male lovers such as Proctor (Biggadike) and Ironmonger (Barber) were often sent for trial but usually dismissed or acquitted.

Conclusions

The concept of fair trials for working class women accused of poisoning was meaningless since the classic trilogy for charge and conviction: proof of means, motive and opportunity, was virtually presumed. Whilst the majority of working class homes purchased arsenic for ridding themselves of vermin, the middle classes involved in the legal system either employed professional rat catchers or left the problem to the servants. If a wife was accused of poisoning her husband it was assumed that any purchase of arsenic was for criminal purposes; any form of pecuniary gain or marital discord, however slight, was assumed as a motive and of course the opportunity was always there.

It is amazing that from 1840 to 1880 any accused woman was ever acquitted. There was no appeal from the trial verdict until the Court of Appeal was established in 1907. If the jury were misdirected or got it wrong that was it. The Home Office were never concerned with merits of the case (that was for juries) and poisoners were almost always hanged.

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