by Peter Moore
The case had arrived at a crucial juncture. If the confession was deemed admissible then all details of the murder in the barn could be brought before the jury: evidence against the Captain, James Taylor, George Banks, John Barnett and Clewes himself. If it were not, it would be omitted from the proceedings, the case against Clewes would crumble and in all likelihood he would be acquitted. Ludlow, persevering doggedly with his line of attack, appealed to Littledale to exclude the confession altogether or else compel the prosecution to call Reverend Clifton.
‘The court should be satisfied that the confession is voluntary,’ Ludlow said. If it had been obtained by any threat or persuasion then it could not be admitted. He had several concerns relating to the document.
If this confession had followed an interview with a private friend or unauthorised person, I would not have asked his Lordship to require the appearance of that person [Reverend Clifton] in the witness box. But when the party stood in the situation of a visiting magistrate – when in that capacity he had gone to the gaol and had been locked up alone with the prisoner, I would ask his Lordship whether it was not the duty of the prosecution to put Mr Clifton in the box?
There was more to Ludlow’s argument. It was imperative, he suggested, that everyone in the court understood what had passed between Clewes and Clifton in the cell. The first confession ‘must naturally have been operating on his mind, and he [Clewes] was not in the fair exercise of his judgement.’ A day may have passed since Clewes had spoken to Clifton for the first time, encouraged by the false promise of a royal pardon, but ‘the mark of torture had not yet been removed from his mind’. It was a strong performance from Ludlow. He concluded his speech by imploring the prosecution to put Clifton on the stand.
Littledale was swayed by Ludlow’s arguments but stopped short of assisting him outright. ‘I do not see how I can insist upon the prosecution calling any particular witness,’ he said. ‘I think at the same time it would be candid and fair of them to do so.’
There was a pause in the court. But with no sign that Curwood was about to act, Ludlow seized on the ambiguity of the judge’s remark. ‘In that case I will call the Reverend Mr Clifton,’ he announced.
This was an unusual step but it passed unopposed. Clifton left his seat at the front of the room and entered the witness box. From the start he seemed downcast and contrite. He admitted signing a warrant for Clewes’ arrest, and that subsequently the men had spent hours together over the next days.
‘How many times did you see the prisoner in the gaol,’ asked Ludlow, ‘before he made the statement now in discussion?’
‘Several times,’ Clifton said. ‘Three, I think, or four.’
‘Four, perhaps?’
‘Possibly four, three I have distinct recollections of.’
‘Did you communicate to Clewes that you would write to the Secretary of State?’
‘I think I did,’ Clifton replied. ‘I said to Clewes I would use all my interest with His Majesty’s Government to prevent any ill consequences falling upon him, if he would dispose to me all he knew of the Oddingley murders.’
‘Now, Mr Clifton,’ said Ludlow. ‘Was it at your desire that Clewes was left alone with you?’
‘Yes. It was at my express desire.’
‘And you are a clergyman, Mr Clifton, and you felt great desire to have the mystery developed?’
‘Yes,’ said Clifton.
Perhaps Clifton’s kindness, the empathy that stemmed from his Christian upbringing and his life as a minister, had been his undoing. The private interviews, the cautionary words and the nudging advice are all reminiscent of a pastor schooled to listen, to counsel and to steer the souls of men to God. These impulses might have been natural for Clifton, but they flew in the face of his legal responsibilities, which required him to remain objective and dispassionate. Clifton’s bungled role in Clewes’ confession exposed an integral weakness in the legal system, which encouraged members of the clergy to fill their spare hours in the dual role of a magistrate. The two positions, clergyman and magistrate, may be united by their need for educated and respected men, but in essence they required very different minds, skills and training. Clifton had muddled the two roles disastrously, and this had thrown the case – already complex enough – into further confusion.
It was vital for Curwood to distance the two confessions from one another, and he now asked Clifton to explain what had happened in his third interview with the prisoner. ‘I told Clewes that I had utterly failed in obtaining any promise or hope of mercy, and read to him a particular part of the letter to that effect,’ he explained. ‘I said he might consider the circumstances as locked up in my breast, for I considered myself in the double capacity of magistrate and clergyman, and should state nothing against him.’ He went on, ‘I would rather be committed by the coroner for contempt, than disclose what had passed.’
‘But had not George Banks been committed to gaol under your warrant between the meetings?’ Ludlow asked, recommencing his cross-examination.
‘Certainly he had,’ Clifton replied.
‘And was it a matter of some notoriety that Banks had been brought to gaol?’
‘Certainly it was.’
‘And did you inform anyone that Clewes had made a confession?’
‘I had mentioned to several persons the general fact that a confession had been made. Assuredly, the coroner knew of the general nature of Clewes’ statement,’ Clifton admitted.
‘And do you recollect having mentioned to the prisoner that if he did not tell there were others that would?’
‘At the second conversation I said it appeared to me that there were so many living persons who had knowledge of the transaction that some or other of them would tell.’
‘I strongly consider that I have a case to make out against the confession,’ Ludlow announced, turning away from Clifton. ‘The alternate effusions of hope and fear held out by a magistrate and a clergyman must, in Clewes’ case, have had great influence with him.’ There were three parts to Ludlow’s argument. Firstly Clifton had promised to apply to the home secretary ‘to prevent any evil consequences’. Secondly he had given him hope of being pardoned – though Ludlow conceded that this had subsequently been removed. Thirdly Clifton had suggested that it was in Clewes’ interests to speak out. Two of these inducements had not been withdrawn and must have played upon his conscience, Ludlow claimed. ‘And let me remind your Lordship that in the interval of Mr Clifton receiving the letter from Secretary of State, Banks had been taken into custody. Who can tell how this might operate on the mind of the prisoner?’
A prosecution counter-attack ensued. Curwood reminded Littledale that there had been two confessions not one, and that much of what Ludlow had said referred to the former, rather than the latter. He was supported by both his junior counsels. William Whateley argued that ‘Mr Smith, in his caution to the prisoner at the inquest, had warned him that no hope of mercy could be held out. Surely this last phrase was quite sufficient to eradicate any hope he might entertain from the personal influence of Mr Clifton?’ Richard Godson contended that ‘If these words were not strong enough, [then] there were no words in the English language that could remove the impression from Clewes’ mind.’
The arguments had been made. Littledale would have the final word and the court quietened in anticipation. The judge had one more question to ask and he recalled Clifton to the stand to establish what time he had informed Clewes there was no hope of a pardon. ‘Ten o’clock in the morning of 2 February,’ Clifton replied. Hooper was then summoned to testify to the time Clewes had delivered his confession. ‘It was five o’clock in the afternoon of the same day,’ he said.
‘It seems to me that this confession is admissible,’ declared Littledale. ‘I entirely concur that if he acted under the influence of any promise or threat, such a statement ought not to be received in evidence; but Clewes having been told that there was an end to all hope from the Secretary of State, the influence on his mind
from that time ceased.’ A crucial point, Littledale noted, was that Clewes was not summoned before the coroner; instead he wrote a note of his own free will. ‘Therefore under all the circumstances I consider the confession is good evidence and it is to be admitted at this trial.’
It was an enormously significant moment. Had Clewes’ confession been omitted, then the evidence that he played any part in Heming’s murder would have vanished in an instant. Littledale’s ruling was a grave blow for him, but the individual most obviously affected was Reverend Clifton, whose legs buckled as the judge spoke. He fell back into his seat. His inexperience had come within an inch of costing the prosecution its case. ‘Restoratives’ were sent for to allow him to speedily ‘regain his faculties’.
The judge, lawyers, journalists and the public now listened in silence as Thomas Clewes’ statement was read aloud. This was their one chance to hear what they had all read in the newspapers, the details repeated once again: Banks visiting Clewes at Netherwood, the panicked meeting between Clewes and the Captain, the dark barn, Taylor’s blood stick, Heming’s bloodless murder and hasty burial. It took 45 minutes for the confession to be read in full. By now the court had been in session for approaching ten hours and for the barristers this was a chance to relax and refresh themselves in preparation for the closing witnesses.
These came soon enough. William Smith had found three men to corroborate what Clewes had admitted. John Collins, Clewes’ farmhand, remembered heaving the marl into the barn on his orders; a man named William Perkins recalled seeing Clewes at Pershore Fair; and William Low – another to have come forward since the inquest – told the court that Clewes had alluded to Heming at the White Horse in 1815. Low said that Clewes had told him, ‘Heming would never come to be hanged, for he was safe enough.’
‘That is the case for the prosecution, my Lord,’ said Curwood.
*
Ebenezer Ludlow had said little since Littledale had decided to admit the confession, allowing the three final prosecution witnesses to slip by without serious trouble. Earlier in the day Ludlow had seemed effervescent, sparring with Curwood and conjuring arguments in spite of all the evidence. The early evening, however, saw him a quiet and thoughtful figure. At last he rose to begin his defence. He told Littledale that, taking every word of the evidence to be true, ‘Clewes was entitled to his acquittal.’
Ludlow’s argument was beautifully simple and a compelling application of logic. He explained to the court that nothing the prosecution had achieved had contradicted Clewes’ confession; indeed they had actually confirmed some of the details. In points of law, Ludlow reasoned, ‘before a man can be made one of the principals in a charge of murder, it must be proved that he was present, aiding and abetting others to do the deed. All that Clewes had done, according to the confession, did not constitute him as an aider or abetter; and if he was not that, then neither could he be a principal.’ ‘What single tittle of evidence was there to show that was the fact?’ he enquired.
He now turned to the confession itself.
If they chose to take the case exclusive of Clewes’ confession there was nothing from which the inference could be raised that he was even present at the scene. The most that the remainder of the evidence went to show was that there had been some vague expressions made use of by Clewes, which might throw some slight sort of suspicion on him. Then, if his confession was to be received at all, ít must be received whole and entire, for the low knew no such harsh proceedings as to take that one part of a man’s confession which was calculated to tell against him, and to leave out the other that was in his favour; either it was a confession or it was not a confession.
‘What then did this confession go to show?’ Ludlow asked rhetorically. It was true that he was present when the murder of Heming took place, ‘but so far from being an aider and an abetter, he had actually been inveighed by Captain Evans into being present at all; and certainly when he had resolved to comply with that wish, he had not in the least contemplated the catastrophe forced upon him’.
It was now nearing eight o’clock in the evening and the morning’s frantic scramble for seats seemed a distant memory. Both the prosecution and defence had outlined their cases, and now, as was customary in complicated trials, Littledale summed up for the jury. ‘The discovery of this murder, so long concealed, and now so strangely brought to light, is one of those extraordinary incidents which now and then occur in human affairs,’ he began. While most of the evidence applied to the murder of Mr Reverend Parker – ‘a very wicked act’ – this was not the crime for which Clewes was being tried. Instead he was suspected of Heming’s murder, and the jury must remember that.
Now, that Clewes was desirous that some mischief should be done to Mr Parker is certain, and that he entertained this feeling in common with Captain Evans is, I think, equally clear; but even though I should own that Clewes was an accessory before the fact in the murder of Mr Parker, it does not follow that because Captain Evans wished to murder Heming I should allow that Clewes participated in this desire. You will observe that, in the evidence before you, the confession of Clewes forms the leading feature. In this he confesses himself a criminal amenable to the law – he confesses himself an accessory after the fact; but it does not seem that he knew anything of the intention of murdering Heming until the fatal blow was struck, and Gentlemen, the rule of law is, that when you take a criminal’s confession, you must take the whole of it as it stands, unless you have evidence to contradict any part of it, or evidence to supply its deficiencies. But what here have you to supply?
Gentlemen of the Jury, I must say that I think the evidence is hardly sufficient to convict the prisoner as principal. You must decide. The whole question rests on the confession. There are not, in my opinion, sufficient grounds for thinking that Clewes has made false statements. There is no reason to conclude that, because Clewes consented to the murder of Parker, and because it would have been an advantage to him to get Heming out of the way, he should, therefore, have consented to the death of Heming. It remains for you Gentlemen, however, to consider if the evidence be sufficiently strong to induce you to bring in a verdict of guilty.
The jury retired for several minutes, then reappeared. Littledale asked if they had reached a verdict. They replied that they had. After a moment’s silence they announced to a confused courtroom that they had found Thomas Clewes guilty as an accessory after the fact.
Littledale instantly interjected, silencing the gasps of the crowd. ‘Gentlemen, you must have misunderstood me,’ he said. ‘The prisoner is not indicted as an accessory after the fact, but as having aided and abetted in the murder – and it appears to me, although it is for you to determine, that there is hardly sufficient evidence to justify you in finding him guilty.’ The jury then retired again, emerging after a brief absence with a verdict of not guilty.
The Guildhall was overcome. For the past 12 hours it had been a place of emotional restraint, with the crowd’s allegiances, emotions and anxieties concealed beneath a veneer of stony faces and glassy eyes. But as the jury announced its verdict the little courtroom filled with spontaneous applause. The clapping was accompanied by audible sighs, the murmur of voices and shuffling bodies animated in a release of long-suppressed energy. The tension, which had been mounting ever since Littledale had approved the confession as evidence, snapped. In response, Mr Gillam, the under sheriff, was forced to intervene, quietening those whose ‘indecorous conduct’ was distracting the court from its business.
With Clewes’ acquittal, the prosecution’s case had run its course. All hopes of a conviction had hung on convicting Clewes for murder. Clewes had faced the strongest case, but now the charges against him had been dismissed it was clear there was insufficient evidence to convict either Banks or Barnett. John Campbell, Banks’ counsel, who had spent the day in quiet observation, rose and asked Littledale whether the prosecution wished to proceed on the coroner’s charges. Littledale forwarded this question to Curwood, who replied tha
t ‘after the decision of the jury, I feel it would be very wrong in me to detain your Lordship by going through the whole of this case again’. For the coroner’s charges to be dismissed, Clewes, Banks and Barnett were called to the bar and asked to plead against this remaining indictment. As no evidence was to be offered against them, the jury were able to return a second verdict of not guilty – and the last of the charges was disposed.
One further legal technicality stood before the prisoners and their liberty. As they had refused to enter a plea on the charge of the first indictment – which accused them all of being accessories before the fact in Parker’s murder – it had already been established that they could not be tried for this. However, neither could they be discharged with the bill hanging over them. A discussion ensued between the defence lawyers and Littledale, who shortly declared that the men would be released by a special law of court that he would draft himself.
As this judgement would not come into force until the following morning, the three men were told that they would be returned to the gaol for a final night. Throughout everything they had remained passively attentive, listening carefully as the trial had unravelled before them. Only Banks was stirred from this state by Littledale’s final decision. ‘As an instance of the strange way10 in which the human feelings will be sometimes affected by the slightest ills, after sustaining the most terrible, Banks, who had borne himself all day with an air of entire firmness, when he learnt that his liberation was to be delayed for a few days [sic], burst into tears’, recorded the Examiner.
As the public filtered out of the Guildhall and into the High Street it was approaching nine o’clock and darkness had long since fallen. Jubilation characterised the mood of those present, and news of the verdict hurtled from mouth to mouth, from the city centre into the suburbs and from there on into the countryside beyond. Five miles away in Oddingley a little knot of parishioners convened at St James’ Church to toll the bells, to drink and smoke in celebration. Two men had been murdered, almost every detail of both crimes had been exposed and understood, yet none of those brought to court would be punished. How strange it seemed.
