Over the next few days I’m going to recommend some good books for summer reading for anyone interested in the law, especially the criminal law.
The first is Sally Smith’s biography of Marshall Hall: “A law unto himself.” (Wildy, Simmonds & Hill £25, although available for a bit less on Amazon). Smith is a barrister, a very good one too, who since taking silk has specialised in medical cases, although she obviously knows her way around the criminal law too.
Her subject, Edward Marshall Hall – known to many simply as Marshall – was what we would now call a “celebrity:” a barrister whose oratory saved numerous men and women from the gallows. He was not always successful of course, and these days it is mainly the clients he failed to save that are remembered: George Joseph Smith, the “Brides in the Bath” murderer; and Seddon, who was said to have poisoned his lodger with arsenic in order to get his hands on her annuities.
Seddon might have joined Hall’s more fortunate clients but he was unwise enough to ignore his counsel’s advice not to give evidence. It was only in 1898 that the Criminal Evidence Act first permitted an accused to give evidence in his own defence, a change in the law that had been opposed by many – although not by Hall – who feared it would lead to the erosion of the burden of proof on the prosecution. The evidence against Seddon was weak, and insofar as it depended upon scientific opinion it had been demolished by Hall in a long and painstaking cross-examination of Sir William Wilcox, the Home Office pathologist. Hall had repeatedly urged Seddon not to expose himself to cross-examination, even walking back to the dock to re-emphasise that advice at the end of what was generally agreed to have been a fairly weak prosecution case. Unwisely, Seddon believed he knew more about jury psychology than Hall:
“Into the witness box went Frederick Seddon, with his cold narrow eyes, his enormous waxed moustache, his precise manner and his obsessive attention to detail. And there he proceeded to reveal himself: his vanity, his pettiness above all else, his passionate love of money.”
He was then quietly persuaded in effect to put the noose around his own neck, starting with his answer to Rufus Isaacs’s second question:
Q. Miss Barrow lived with you from 26th July 1910, till the morning of the 14th September 1911?
Q. Did you like her?
A. Did I like her?
Q. Yes, that is the question.
A. She was not a woman that you could be in love with but I deeply sympathised with her.
As Smith explains,
“He had an answer to everything and he talked like a lawyer: ‘I never purchased arsenic in my life in any shape or form. I never advised, directed, or instructed the purchase of arsenic in any shape or form. I never advised, directed or instructed the administration of arsenic.’ It may have been true, but the jury hated him, as Marshall had known they would, and found him guilty while acquitting downtrodden Mrs Seddon on the same evidence.”
Hall’s closing peroration referred back to the feeble scientific evidence at the heart of the case:
“There is one thing that the scientists have never yet been able to discover with all their research … and that is how to replace the little vital spark that we call life. Upon your verdict here depends the life of this man. If your verdict is against him that spark will be extinguished and no science known in the world can ever replace it.”
All who heard it agreed that it was superb advocacy, but it was not enough; and nor was Seddon’s extraordinary Masonic plea to the trial judge, Bucknill J., who, while struggling with emotion nevertheless passed the mandatory death sentence, entreating the prisoner to make his peace with the “Great Architect of the Universe.”
Hall excelled at every aspect of jury advocacy (he had a reputation, only partly deserved, for not being particularly good on pure law, “I am an advocate, not a lawyer” he used to say), but it was for his closing speeches that he was most celebrated at the time and for which he is now most remembered. Almost all practising barristers will have heard of his “scales of justice” speech, delivered, astonishingly “as he stood for long minutes with his arms held outstretched at shoulder height, his body the central pillar, his hands the scale of the pans …:
‘It may appear that the scales of justice are first weighed on one side in favour of the prisoner and then on the other against the prisoner. As counsel on either side puts the evidence in the scales, I can call to my fancy a great statue of Justice holding the two scales with equally honest hands. As the jury watch the scales they think for a moment that one scale and then the other has fallen and then again that they are so level that they cannot make up their minds which was lower or higher. Then in one scale, in the prisoner’s scale, unseen by human eye is placed that overbalancing weight, the presumption of innocence.’
“and his hand dropped slowly to his side.”
Advocacy is an ephemeral art. Its power depends not only on what is said, but on how and the circumstances in which it was said. It cannot be repeated, and it is rarely recorded even today (for reasons I have never really understood today’s sophisticated digital recording machines are usually turned off during closing speeches in the Crown Court) and certainly not in Hall’s day. Yet Smith somehow seems to capture to perfection something of the atmosphere of his speeches. An early and magnificent example was his first speech in a capital case, in defence of an “unprepossessing forty-three-year-old prostitute” Marie Hermann, who had battered to death an apparently blameless old client with a poker, before concealing his body in a trunk. The prosecution was led by Charles “Willie” Matthews “… terrifying … so small yet compelling in his raggedy gown always half off his shoulders, with his high pitched effeminate voice and his deadly cross-examinations” (most defence barristers will be able to picture the type, if not squeaky Willie himself). The evidence seemed overwhelming. Yet Marshall’s speech won the verdict, and cemented his public reputation for near invincibility:
“The three hour outpouring was unclassifiable, part poetic oratory, part open wound. White faced and motionless Marshall hurled himself into his defence speech, the words pouring out in a torrent, yet always just kept under control. …
“… And then, suddenly, the tall still figure flung himself into frantic activity. No-one had ever seen anything like this re-creation of the death struggle. He demonstrated first the savage old man pinioning Hermann to the ground, his hands around her throat, and then Hermann herself, with only her left hand free, seizing an imaginary poker which seemed almost to materialise before the jury’s eyes and delivering the ghastly fatal blows ….”
Marshall then tackled head-on, and with an almost 21st century feel, the prejudice that an all male jury was likely to feel towards his prostitute client,
“These women are what men made them …. There was a time when this woman was as pure and good as any child….
“Gentlemen, on the evidence before you I almost dare you to find a verdict of murder.
He sat down. But then this:
“catching sight of the sobbing woman huddled in the dock, the ringing peroration seemed to Marshall suddenly to be inadequate. He got to his feet again and uttered the words with which his name has ever after been associated:
‘Look at her, members of the jury, look at her; God never gave her a chance. Won’t you? Won’t you?’
The jury returned a verdict of manslaughter, and Hermann’s life was saved.
Smith emphasises something that very few English lawyers now have to experience, the terrible strain put on an advocate defending on a capital charge.
“Many barristers of great eminence found that once was enough. Sir Rufus Isaacs … prosecuted only one murder [Seddon] and was so unnerved by the experience he swore never to do another. The distinguished Sir Edward Clarke, famous for his disciplined delivery, having secured the acquittal of a young woman charged with poisoning her husband, put his head in his hands in open court and wept with strain and relief. Defence counsel had nothing … but the force of their own personalities, the cadences of their own voices and their understanding of human psychology. The advocacy was all, the responsibility unimaginable.”
Marshall too felt the strain, but again and again he was persuaded to come to the defence of men and women for whom he represented almost their last hope.
But not always of course – an attempt was made to instruct him to defend Crippen but he refused to accept the brief on ethical grounds. In the event of a conviction, the idea was that he would be paid from the proceeds of sale of a guaranteed “confession” from the condemned cell, about as dodgy an arrangement as one could imagine, although understandable in the days before legal aid where a man’s life was at stake. Major Armstrong – the Hay on Wye solicitor and arsenical poisoner sensibly tried to instruct him but Marshall was too worn out from his successful defence of another Welsh solicitor, Greenwood (sensationally acquitted of poisoning his wife), to accept the brief. More tragically he was unable to appear for twenty-six year old Edith Thompson accused of arranging for her husband to be murdered by her younger lover, Frederick Bywaters. Both were hanged, Thompson very dubiously. It was exactly the sort of case in which his passionate and emotional advocacy would surely have secured an acquittal.
Smith’s book is far more than a catalogue of Marshall’s cases, interesting though that would have been. She examines his own private life, which was smoothed over and bowdlerised in Marjoribanks’s hitherto definitive biography. Of central importance was his disastrous first marriage which ended in tragedy and ultimately with criminal litigation, many of the details of which she has uncovered for the first time after finding a mislabelled police file in the National Archives. I won’t spoil the story for you here. She also explains his sometimes troubled relationship with members of the senior judiciary, which at one point came close to destroying his career.
She is also very good on historical context. He was born in 1858, just 40 years after the last hanging drawing and quartering had taken place (although by 1820 the drawing and quartering had been replaced by simple beheading). He was three at the time of the last public whipping, and just ten when the Fenian bomber, Michael Barrett, became the last person to be publicly hanged in England. Had his parents wished to take him they could have travelled to Newgate Gaol via the newly opened Metropolitan Line. He died in 1927, well within living memory.
Anyway, I have gone on for long enough. I do urge you to buy the book. It is beautifully written, beautifully produced, gripping, instructive for any aspiring or even fully developed advocate, and above all a wonderful portrait, of a flawed but humane man who was perhaps the very greatest of English advocates, “emulated, parodied, indefinable, at his best sublime.”