JUDGING CRIMES

Henry Fielding was a lawyer and judge as well as among the first and greatest English novelists.  Many a literary man has read the law to please his parents, including two of the authors I read with purest pleasure, LeFanu and Stevenson.  But Fielding, unlike them and most law-trained authors, made his living from the profession. 

While he was not a rousing success as a barrister (but then, most barristers aren't – bell-shaped curve and all that – Boswell never made it to the top of the greasy pole, either), he became magistrate for Westminster, and he and his brother John, also a magistrate, helped organize London's first effective police force, the Bow Street Runners.  (Fielding's courtroom was in Bow Street, across from Covent Garden.)

(On that map you'll find the geographic inspiration not only for The Jam's "A-Bomb in Wardour Street" – Wardour is the street on which the Marquee was located – but also, if you look closely, for the Kinks' "Denmark Street," which captures once and for all the soul of a pop music producer: "You go to a publisher and play him your song. / He says, 'I hate your music and your hair is too long / But I'll sign you up because I'd hate to be wrong.'")

Toward the end of his very short life, Fielding wrote a book, or rather a pamphlet, called Examples of the Interposition of Providence in the Detection and Punishment of Murder, Containing, above thirty Cases, in which this dreadful Crime has been brought to Light, in the most extraordinary and miraculous Manner; collected from various authors, ancient and modern.  Here's "Example XXX":

The following fact was told me by a gentleman whose great-grand-father was an Irish judge, before whom the thing happen'd.  The particulars have been preserved in the family by tradition ever since, but the name of the person that was executed is purposely omitted, as being of no inconsiderable family in that nation.

A gentleman was tried in Ireland for killing his friend in a duel, and the circumstances appearing very favourable on his side, a verdict was brought in manslaughter.  This crime being within benefit of clergy, the prisoner had the book offered him to read; of which he started and hesitated in such a manner, that those who stood near him asked him why he did not proceed.  He answered, he could not see the words, they were so stained with blood.  He added, that he wonder'd they should use him in such a manner, and desired there would give him a fair book.  Several people standing by look'd on the book, and all declared, that not the least drop of blood appear'd on it, but the words were perfectly legible.  The prisoner, on that, fetch'd a deep sigh, and said, "I plainly perceive the vengeance of God is pursuing me; for although I declare myself innocent of the death of my friend, any otherwise than by being forced into it for self-defence, yet I confess herself worthy of public punishment; for some years ago I barbarously murdered my own father."

He then related all the particulars of the Murder, and his confession was so full, that he must of been condemn'd on that account, had he taken his tryal; but his incapacity for reading in any book they offered him, by the appearance of blood before his eyes, still continuing, no other tryal was necessary, and he was executed by virtue of his first conviction.

He died very penitent, persisting in his confession of the Murder of his father, allowing the justices punishment, and acknowledging the hand of God, and forcing him to confession of his horrid crime.

Example XIX told of a man whom got away with murder for 20 years.  After that passage of time he felt confident enough to return to his old haunts, so to speak.  But

the very evening that he landed in a wherry at Queenhithe-stairs, walking up to Cheapside, in order to get into a coach, just in the dusk, and by the very door of his murdered friend, he heard a voice cry out, "Stop him, stop him, there he is."  On this he ran as fast as he was able, and soon found himself followed by a large mob.  He was soon overtaken and seized, on which he cried out, "I confess the fact, I am the man that did it."  The mob on that said, as he had confessed the crime, they would proceed to execution; and, after making him refund the stolen goods, would give him the discipline of pumping, kenneling and the like [that is, holding him under a pump or in a 'kennel' or open sewer]: on which he said he had stolen nothing, for though he had murdered Mr. L----, yet he had no intention of robbing his house.  By this answer, the mob found themselves mistaken, for their pursuing a pickpocket, and seeing this man run hard, believed him to be the pickpocket; but now were for letting go as a person distracted, that knew not what he said.  One man however who lived in the neighbourhood, and had heard of the murder of Mr. L----, desired that this gentleman might be examined before a magistrate, and he was accordingly carried before the Lord-Mayor, who took confession of the fact, for which he was soon hanged: and he declared at the gallows, that the day of his execution, was the happiest day he had known since he had committed that horrid, treacherous, inhuman act, the murder of a friend, who loved him, and to whom he lay under the highest obligations.

It might seem strange at first that the ribald satirist Fielding should have morphed into the earnest moralist championing God's wrath against "this sin of murder."  Here's one Victorian assuring us, presumably metaphorically, that "Fielding the magistrate and Fielding the playwright were two different persons".  But it seems to me obvious that the satire and the moralizing were the same tune played in different keys. 

For an artistic genius and pioneering judge in London in 1752, the detection of murder, and the murderer's penitence as expressed in his gallows confession, were presumed to be the handiwork of God: "the Almighty hath been pleased to distinguish the atrociousness of the Murderer's guilt, by levelling his thunder directly at his head, in this world."

Many things have changed in the succeeding 255 years, not least of all the attitudes of judges.   Today's Supreme Court presumes that a murderer's confession is the result of a civil rights violation.  From the hand of God to a tort: now there's a fall from grace.

In 1968 Justice Byron White deplored "the Court's fuzzy ideology about confessions, an ideology which is difficult to relate to any provision of the Constitution and which excludes from the trial evidence of the highest relevance and probity."

But that was a lawyer-centric way of putting it.  Describing an ideology in terms of categories established by the law of evidence is like describing liberalism as an ideology that favors Volvos - not wrong, but kinda missing the point.  The Court's ideology, which is by compulsion the ideology of all American criminal courts, is an ideology about punishing murderers who have confessed to their crimes.

And even that isn't quite right, because people really do confess falsely, and no one (or no one we need to respect) is in favor of locking up the innocent.  So we can put the innocent confessors to one side.  The Court's ideology is against punishing guilty murderers who have confessed to their crimes.

This ideology is imposed upon us by a group of people who want us to believe they respect the intentions of the framers of our Constitution.  (See post 79.)   Do you suppose they really know more about what people were thinking in the 18th century than Henry Fielding did?