by Stephen Wade
In the broader medical sphere, there was also an issue of the treatment of children for everyday complaints which was strongly reliant on medicine, with various versions of opium-based soothers on offer from the chemist. It was widely recognised that many babies died from the effects of too large a dose of opium given by an often desperate, stressed or even mentally ill mother. Yet the popular press was flowing with adverts for laudanum. As Sarah lay in the long house, Wilkie Collins wrote to a friend: ‘My doctor is trying to break me of the habit of laudanum. I am stabbed every night at ten with a sharp-pointed syringe which injects morphia under my skin…’. The novelist George Sand wrote in the 1870s that she had treated her children for bronchitis with morphine. Godfrey’s Cordial, for instance, was widely used to get the baby to sleep, and one doctor from Lincolnshire wrote in 1867, ‘twins and illegitimate children almost always die. I know a case here where a woman has had five or six children all of whom have died, having been given opium to keep them quiet.’
Starvation of children, then, was something very much a subject of political and social debate in the late 1860s, and was one element in a widespread maltreatment of infants which had reached massive, worrying proportions. If we look for a link between some of the London and Irish examples, compared with Sarah’s case, we find a massive difference, and this will lie beneath the discussion in court at the assizes later in my account of the criminal conviction.
Was there also a personal element, relating to the Home Secretary, Henry Bruce? Here was a Welshman, the future Lord Aberdare, who had recently lost his parliamentary seat at Merthyr Tydfil and was re-elected for Renfrewshire, and who had been a stipendiary magistrate in Merthyr Tydfil and Aberdare. He is best remembered for his work in producing the 1872 Licensing Act, which gave magistrates more power in controlling premises such as alehouses and beer shops. He would have had a sound knowledge, and strong opinions, of the Welsh working class and the poorer farmers and artisans. As well as this, he cared for the image of Wales, and the Sarah Jacob case, being what we would now call a good media ‘spin’ on the subject of starvation, is something in which he would have been keenly interested.
Regardless of why the Crown decided to prosecute, it must have been in the lawyers’ minds as they prepared for the assizes in early 1870 that manslaughter of children had recently brought some very severe sentences on conviction. Admittedly, the March 1867 trial of Alfred and Sarah Blow at Lincoln assizes, though it was a case of starvation, had violence included too, but the sentence was extreme. Alfred Blow had severely beaten Eliza, Sarah’s illegitimate child, but the doctors’ evidence was crucial: ‘The doctor was of opinion that death resulted from want of proper food and attention, and was accelerated in all probability by the injuries to the head, though the child would have died of starvation apart from such injuries.’ A verdict of manslaughter was reached and the judge sentenced each of the parents to 15 years’ penal servitude.
Interestingly, when H.A. Bruce was asked in the Commons about a recent case at Bedford in which a man who had tried to destroy a whole railway train and only received a year’s prison as his sentence, he responded with, ‘…it has never been the practice of a Secretary of State to call a learned judge to account for a sentence which, on a due consideration of the circumstances, he had thought it right to inflict.’ There was very little movement towards any revision of these procedures and protocol, although ten years before this there had been a clamour for retrials, there being no court of criminal appeal at the time.
What this means for the Jacob case is that, as this was a government prosecution, there may have been no desire to make it a retributory test case and give a draconian punishment, but some punishment had to be inflicted, and the whole business made into something important.
Everyone was in their place as the trial began; one reporter noted that ‘The prisoners were seated during the day and they presented a very dejected and anxious appearance.’ How much of Judge Hannen’s opening remarks the Jacobs fully understood is open to question. He spoke rhetorically on a theme of universal moral concord: the duties of parents. He also made clear the law on the notions of killing by omission. Led by Giffard, the prosecution began, and the basis was made clear, as the true bill was firmly created in the belief that, in Hannen’s word, ‘The death followed in a most natural manner from the withdrawal of food…’ and that left ‘no possibility of doubt that the child died in consequence of her having been under abstention during that time, and from their neglect to supply her with the food which she had previously received.’
The report in The Tivyside Advertiser described the opening scene as Giffard prepared to speak: ‘Considerable anxiety was manifested to hear this extraordinary trial, and at ten o’clock the court was thronged, and every seat in the ladies’ gallery was occupied. Both the prisoners, immediately on their names being called by the clerk of assize, at once surrendered to their bail and took their places in the dock. The mother was attired in deep mourning, and appeared pale and careworn; the father exhibited traces of anxiety on his countenance, such as might be expected in a person placed in his situation. We learn that the parents have been reduced to the extremest poverty.’ In fact, this is an exaggeration. Hannah, for instance, lived in a small cottage not far from where her former farm.
So began the problematic interplay of the court drama – with the clerk having to translate into Welsh for the Jacobs, so that they understood the charge and could make their pleas – ‘Not guilty.’
All the professionals were called upon as witnesses, from Dr Fowler from London to the local surgeons. Giffard was fluent and forthright, and everyone listened to the opinions previously heard before the magistrates. The basis of Giffard’s argument was that the Jacobs wanted ‘to have a miracle performed at home’ and that there had been no wilful intention to end Sarah’s life. He made it clear that such a scenario would have led to a murder trial. Giffard’s main task, as he argued for the prosecution, was to ensure that this jury of countrymen, not markedly intellectual, would grasp the niceties of both legal reasoning and medical vocabulary. His words to the jury were always balanced between being a little condescending and downright didactic, as if he had to find a way to teach by gradual means. In the language of school and pedagogy, he was clear about the aims and objectives of making the Jacobs appear guilty of manslaughter, while at the same time showing that little Sarah was not innocent of the ‘imposture’.
Giffard made the whole matter, in recounting the history of the case, seem to be something that was gradually accepted as a marvel, stressing the amateurish and bumbling arrangements for the study of the case: ‘Eventually there was a sort of agreement that the child should be watched, and there was a sort of watching which resulted favourably to the parents.’ His task was to criticise and undermine what had been done by the Welsh community, in contrast, stressing the sensible and professional conclusions made by Fowler, whose contention that the case was one simply of a delusion was to be admired.
He knew that a plain outline of the chronology of the girl’s decline would bring out the obvious: that there had been food taken in some unknown way until the professional watching: ‘The child seemed to be well; but from the hour the watching began, the child wasted away.’ Giffard was also aware that the jury may have been aware of the other range of options about what Sarah may have died of, and he saw that he had to make common sense and rational deduction win the day: ‘You have the fact that food was withheld from this child. If you arrive at that first conclusion that she died because she was starved to death, then the second question is, who was responsible for it?’
That was his smartest expression of his case: to put the alleged action of the Jacobs brutally succinctly, with the plain emotional words that a newspaper report would have used, yet to lead the jury to see that there were matters which might prevent them thinking so plainly. His psychological ploy was to make it seem that he was thinking with them, leading them where he wanted, but seeming to be lik
e them, though not of them, very much as Aristotle phrased the effects of tragic drama.
The obvious line of thought adopted for the prosecution was that parents always know everything that their children are doing, especially in a long house, with everyone on top of each other, and every sound heard as soon as uttered. Yes, there had supposedly been a ‘vow’ on the part of Evan not to allow his daughter any food, but anything of that nature was interpreted by Giffard as being a fabrication to cover up the nasty and selfish aims of parents who saw a chance for a quick buck, and a long line of gullible English arriving at Pencader station.
The appeal to the universal understanding of what parents should and should not do was cunningly maintained through Giffard’s speech. He also addressed the strange business of the symptoms, as reported through the first year of the fast in particular, when medical men saw everything that convinced them that this was no more than hysteria, and of a pattern they knew and had read about.
Again, the prosecution was eager to make the court aware that the parents had gambled – they had thought, so the reasoning went, that Sarah would live through the second watch; once more, the final days were described emotively: ‘But you will find that when the child lost consciousness, and when there was no power to keep up the delusion, one of the most marked symptoms was the waving about of this paralysed arm.’ Much would be made of the uncle, Mr Daniel, and Giffard rounded off his account by squeezing out the negative interpretation of what happened to Daniel: ‘The uncle of the child came to the father under the urgent pressure of these symptoms, and appealed to him to give the child food. He refused, he angrily refused, using words I will not repeat at this moment…’
In fact, when Daniel was called, after the judge had asked Mr Bowen for the defence if he wished to call witnesses, the examination and the following cross examination proved to be one of the most damning episodes for the Jacobs in the course of the trial. Daniel told Bowen only something fairly bland:
They were very fond of their children, particularly little Sarah. I remember taking a message to Mr Davies, surgeon, on 16th December. I also remember taking Sarah something else on the evening of that day, but she threw her head back and went into a fit. I heard Mr Davies say he had permission to give Sarah food…
Here was a man doing his very best to make out that the parents were very caring, and that there was no imposture, as he had actually seen what he thought was a ‘fit’. But then he was cross-examined by Giffard, and his account of the last desperate attempt to beg that food be given was powerful and persuasive for anyone who was being neutral and objective about the affair:
‘The male prisoner was very angry when he knew I asked Sarah to have some water. He was in a passion and I have said that he felt inclined to kick me, but I am not sure. He did not kick me however.’
Daniel was struggling to be truthful yet not to condemn his brother-in-law. He failed to achieve anything but to blacken the image of Evan and make it plain that the man in the dock was not a good man.
Here we come to an aspect of the trial which has not previously been explained or discussed: Daniel was one of the few prosecution witnesses called and cross-examined, and he was pressed by Giffard, in this exchange:
Giffard: Did he threaten to kick you?
Daniel: I told them so.
Giffard: Did he threaten to kick you?
Daniel: I said so before the magistrates.
Giffard: Answer my question Sir. I will have an answer one way or the other.
Daniel: I do not recollect now, but I said so then.
Giffard: Then did you swear before the magistrates what was not true?
Daniel: No, I could not do that.
Giffard: Then remembering what you have sworn, was it true? Daniel: As far as I knew at that time.
Giffard: That will do.
The few witnesses who were called were treated in this way – with the barrister’s insistent and rather bullying stance on the matters in hand. But why were no witnesses called from among the medical men of the area who knew the case well, and why was the family servant, who lived and slept in the room next to Sarah and the parents, not called? Mr Michael for the defence made a strong point on this: ‘Mr Davies, the man who of all others could have thrown light upon the case… the man who could have helped us here is not called by the counsel for the Crown because it is believed he would say something that would exonerate these two people in the dock from an indictment that is hanging over their heads. I ask you gentlemen, is this fairness? Is this justice?’
Three years before, a very important and radical piece of legislation was passed, a bill developed by Russell Gurney; it received its second reading in February 1867 and The Times reported: ‘Mr Russell Gurney explained that its main objects were to allow the judge to fix the expenses on the prosecutor if they should be of the opinion that the charge was unfounded; and to provide for the attendance and payment of witnesses necessary for the defence of prisoners at the discretion of the judge [my italics ]’. This led to the Criminal Law Amendment Act of 1867 30&31 Victoria. As the great legal historian J.H. Baker wrote, this law gave the defence the possibility of ‘calling witnesses to depose evidence before the trial and have them bound over to attend the trial.’ He added in a footnote that the prosecution had been able to do this ‘since at least the 1550s’.
The new bill was to have an occasion for being tested just two months after being passed, when the Fenian bombings at Clerken-well led to the trial of one Ann Justice (a most ironical surname). Her defence, like the Jacobs, was being taken by a solicitor, not a barrister, a Mr W.P. Roberts who wrote to the Home Secretary on the topic of Ann’s defence. He said: ‘For the prisoner’s defence counsel weight, courage and influence, and also of learning and experience, will be required. Her case is peculiar. It is an absolute necessity for her protection that she should be tried alone, so that she may only have to contend against the evidence that relates solely to herself. To insure a separate trial will be attended with much difficulty. Counsel who could easily be put down or frightened, or led away, or who were not of large experience in criminal courts, would not only be unequal to the work, but they might, notwithstanding their zeal and talent, do harm instead of good.’ Surely he was thinking of himself – and that he was not up to combating a seasoned silk across the floor of the court. But it had to be the judge who argued for defence witnesses, so the only other option was to ensure that witnesses would be paid and that counsel be better qualified should the witnesses for the defence be called. He wrote: ‘ I beg therefore most respectfully to ask for such assistance as the Treasury might feel it right to give…’
The long letter makes it plain that, in spite of Russell Gurney’s bill, the appearance of defence witnesses was still a matter for the judge. In the Jacob case, prosecuted by the Treasury (as was Ann Justice’s case), it appears that Judge Hannen had no time to spare for considering witnesses for the defence, and Mr Michael and Mr Bowen made their dissatisfaction clear in their speeches in court.
All this background makes the case look more and more like a test case, engineered by the government. Everything that could be done to spin the case as no more than a cheap and nasty fraud committed by a Welsh farmer greedy for cash, followed by a repulsive homicide of a daughter, was indeed done by the legal establishment. Solicitors were pitted against barristers, witnesses useful to the prosecution were foregrounded, eclipsing any possible witness appearances beneficial to the defence, and in fact, if we enquire further, we have to question the decision of the grand jury to agree to a true bill and so open up the prosecution for manslaughter. The solicitors for the defence spoke very well, and they had plenty of experience, but there is a feeling, as one reads the account of the trial, that they were out of their depth in terms of methods of argument and use of rhetoric.
The facts before the grand jury at that discussion are those coming from the coroner’s inquest. That inquest was as one-sided as the following assize, so a true bill and a
charge against the Jacobs was inevitable.
The defence, Messrs Bowen and Michael, had prepared well, and Bowen’s speech summing up the defence was extremely impressive. He realised that there was an element of great interest in the fact that it was highly likely that Sarah was complicit in the narrative set before the jury. The prevailing interpretation at that point, before he spoke, was that the Jacobs had first of all lived with Sarah through the first phase of some indeterminate illness, and had then come to see that, with her sense of the dramatic, and with such demonstrably dramatic symptoms, there was an opportunity for an imposture and that, as notoriety grew and visitors arrived, there was money to be made. Evan’s actions in gatekeeping, monitoring everything and wanting to control access to his daughter, even to the point of directing how the doctors should perform examinations, appeared to confirm that all this protection was to ensure the cover-up of the fraud. On the surface, that would have been very easy to accept, revealing a dark side of human nature, and one that all would understand – the temptation set before a simple man. It would be an example of the kind of deviation from Christian ideals set before the public every week in sermons and tracts.
Michael did his very best, and the key stages of his reasoning were excellent. He performed as well as the barristers, being very lucid and focused when it came to dealing with key words such as the notion of the supposed ‘fits’. His argument was that such medical terminology, used by laypeople in the case, needed definition and explanation from key witnesses – who of course, had not been called.
His final swipe was at the denigration of the Welsh: referring to the infamous statement in the British Medical Journal about Welsh ignorance and superstition, he said, ‘There is no more darkness in Wales than there is in England… What is material is this … the protection of the law will surround the weak against the strong.’ In the light of the above discussion on the use and appearance of defence witnesses, that seems like something he dreamed of, rather than something he saw every day in his profession.