6

From Court to Prison

Fresh from brawling courts

And dusty purlieus of the law

Tennyson: In Memoriam

This was a big occasion. Every assize was one of the compelling stories of the year for the local and regional press. Basil Nield, writing in the 1960s, after a life as a judge, described the trajectory of the event in modern times, and his account (though it includes a Rolls Royce) captures the spirit of the occasion: ‘Setting out from London, if the judge of assize goes by train, he is entitled to a reserved carriage. This is just one way of securing that there shall be no danger of the judge coming into contact with any litigant or juryman, or even accused on bail…. Arrived at his destination, the judge is met by the High Sheriff or the Under Sheriff of the county, formally attired. Very often the stationmaster is also there to meet him and escort him to the car…. The judge is conveyed to his lodgings which consist either of a house provided by the local authority or that of a private individual.’ Nield then adds that there would be a ceremonial opening and a service in the parish church ‘in which is said the Bidding Prayer’. This prayer referred to all varieties of persons in authority, to ask for wisdom and guidance. Of course, heads would turn and members of the press would be scribbling in their notebooks.

In Carmarthen, this kind of ceremonial had been going on for many centuries, and the guildhall on assize days was acknowledged as the formal centre of the community, because justice would be done there, hopefully with wisdom and with human understanding as well as with the guidance of the heavy law books.

Everyone involved in the process was now open to blame, censure, and potential criminal prosecution. The reason was simple: that the girl had died so soon after the professional watching pointed to a fraud, and the adults appeared to be in control of this, manipulating a child, and to such a degree that she had been starved to death for monetary gain. That all seems clear-cut, but it was not what it seemed. Nothing ever was in the story of Sarah Jacob.

The medical men found themselves summoned to appear before the magistrates at the Wilke’s Head, Llandysul; one of the doctors, Lewis, was a magistrate himself, such was the bizarre nature of the first stage of the criminal proceedings. There was a moral accusation too, and a professional one, expressed succinctly in The Lancet for Christmas, 1869, in the wake of Sarah’s death: ‘The practical lesson is clear – the medical profession should have nothing to do, directly or indirectly, with the investigation of any of the absurd stories arising, from time to time, out of ignorance and deceit, or superstition. The sacrifice of this child ought to be enough, in all conscience, to make any future attempts at similar impostures penal.’

The magistrates sat in judgement at the first court hearing, and the case must have stood out in strangeness and complexity to their usual business of dealing with drunks, assaults and petty theft. But before an account of the trial is given, the fact that C.E. Coleridge was acting for the Treasury Solicitors is significant. What had happened was that, as Richard Ireland has discovered through painstaking research, the coroner and his advisors had decided that they did not want to have the case prosecuted, and he wrote to the Secretary to the Treasury to explain: ‘The position of things at present is that no-one has been bound over to prosecute and I learn that the County Justices do not intend taking the matter up with a view to prosecuting by Indictment. It seems to me therefore that unless you are pleased to direct some action to be taken no counsel will be instructed and the prosecution by Coroner’s Inquisition will probably break down…’

This gap between the centralised English attitudes to prosecution and judgement has been further studied by Richard Ireland, and a neat way to grasp the problem is to glance at a memoir by J.A. Strachan, a barrister writing c.1900 about Ireland, which at this time showed similar traits in this respect:

Rarely has an English judge to appeal to an English jury for a conviction: not infrequently he has to appeal to them for an acquittal: everywhere else the juries are only too ready to acquit… In Ireland, north and south this is sometimes the case, not merely in agrarian offences, where fellow-feeling may affect the jurors’ minds, but in ordinary crimes where their own well-being and protection are at stake. We have all heard of the tale of highway robbery at Tralee. The evidence for the prosecution showed that highway robbery in Kerry had become a public danger, and the prisoners were the leaders of a robber band, yet the jury acquitted them…

This was referring to acquittal. In Carmarthen at this time, the issue was with there being no progression towards a Grand Jury deciding on a true bill and an indictment. The Llanfihangel justices went on to explain that some of the reasons for this desire not to take the trial any further were practical matters of convenience: many witnesses lived a very long way off, and they would have to be brought back to Carmarthen for a trial. But clearly this was not acceptable. The Home Office insisted on a prosecution. This was a very unusual event – the prosecution being conducted by central government. In fact, later, in July, 1870, it was reported by The Times that John Jones, a Conservative M.P. in the House of Commons had asked the Secretary of the Treasury ‘on what principle a larger scale of costs was allowed in the Sarah Jacob, Welsh Fasting Girl case, than was paid or allowed to witnesses in other prosecutions, and why it was considered necessary to employ counsel to conduct the preliminary investigations instead of the local agent mentioned in the return.’

There had also been much thought about the nature of the crime. The issue was about homicide, and the exact definition of manslaughter. Sarah had died through neglect and omission. The great legal historian Sir James Fitzjames Stephen wrote, in 1880: ‘Whether the word “killing” is applied or not to homicides by omission is to a great extent a question of words. For legal purposes a perfectly distinct line on the subject is drawn. By the law of the country killing by omission is in no case criminal unless the thing omitted is one which is a legal duty to do. Hence, in order to ascertain what kinds of killing by omission are criminal, it is necessary in the first place to ascertain the duties by which tend to the preservation of life.’

There had been debate on this since the reports made before the influential Offences Against the Persons Act of 1861, with a focus on the notion that there might be a difference between killing by manslaughter and killing by negligence, as in this statement in a government report of 1848:

Killing by negligence is homicide by an act lawful or unlawful… causing death by reason of a want of that degree of knowledge, skill, care, attention, caution or diligence, in the person who did it which he ought to have employed in the position in which he was placed.

The difference came down to what we today would discuss under the common phrase ‘a duty of care’, as in the case of Regina v Sarah Shepherd just five years before Sarah first took to her bed and fasted. This was a charge of murder against Shepherd, who had failed to procure a midwife for her nineteen-year-old daughter. The judge’s directions to the jury explain the dilemma:

The learned judge told the jury to consider whether it was established by the evidence that the death of the deceased was attributable to the Prisoner’s neglect to use ordinary diligence in procuring the assistance of a midwife or other proper attendant, and if it was not so established, then to acquit the prisoner. But if it was so established, then to consider by so neglecting the intended to bring about the death of her daughter, and if so, they were to convict her of murder, but if not, of manslaughter…

The case went to the Court for Crown Cases Reserved, which means that the judge in question had felt he should consult his peers for further advice, after the court had at first found Shepherd guilty of a criminal neglect. At that later court, it was decided that, as the daughter was an adult, and had lived away from home for some time before returning home to have her child, there was no maternal responsibility. The conclusion was: ‘The court were of opinion that the deceased was emancipated, and that the case did not come within any of the authorities which cast a legal liability upon the prisoner’. Shepherd was freed, the conviction quashed.

Today we would see the issue as being manslaughter by breach of duty. As William Wilson has written, it would follow this reasoning: the defendant owed the victim a duty of care; the defendant breached that duty; the breach of duty caused death, and the breach of duty was gross.

The Shepherd case shows that, in the 1860s, there were still difficult questions of law attached to the crime of manslaughter, but that by the time of the trial of Evan and the doctors (all were indicted to appear before the magistrates), the age of the child in question was crucially important. Sarah had lived at home, died there, and was a minor. Shepherd’s daughter was nineteen and had lived away. Even later in the century, though, punishments varied considerably in areas child neglect, as the case of Mary Thomas of Llangefni shows: she was fined £2 in 1895 for not caring adequately for her child. Closer to the Jacob case was that of Benjamin Evans of Cardiff, who in 1886 was guilty of starving his daughter to death. He was in extreme poverty, and as David Jones commented, ‘The family were in lodgings, they had no furniture and his wife was ill. He told the court that he had done his best. His state of virtual destitution is in sharp contrast to Evan, who was comfortably off and had lots of land.’

The Jacob case was a prosecution initiated by the Treasury. Many interested parties wanted the trial to take place in London, rather than in Wales. There was much on this in The Law Times in March, 1870, the most cogent statement being : ‘…we trust that the appeal we had ventured, on the other and higher grounds of the interests of the law and of science, for the trial of the case in London, will be adopted by the Home office.’ Commentators within the law establishment were well aware of the possible consequences of having a local trial, out of the immediate domain of the instigators of the prosecution.

Apart from the crime itself, there was also the issue of Hannah Jacob and whether or not she should be charged, and this was due to the legal concept of coverture. This stated that Hannah was subject to the governance of her husband, and so had no individual act of intent against her – a married woman was seen as ‘under the rod’ of her husband, the legal concept stemming from the French femme covert, such as a married woman, as distinct from a femme sole. For that reason, she is a shadow in the literature telling of the story, and a careful reading of the entire narrative of the Sarah Jacob story has to conclude that she is barely visible, behind Evan always, appearing to condone, but possibly swaying with the wind when it came to decisions about what to do with the house invalid.

This point was to be a challenge to legal thinking, as was the position of the doctors involved in the second watch. Hannah and the medical men had in a sense been in a supervisory role as a child had been allowed to die through neglect, but there was no doubt that Evan had exerted power and had had the most relevant status and authority. Prosecuting, Mr Coleridge summed up the situation: ‘If in this instance the father and mother have not compelled their child to take food, as I shall make out by the facts, then they are guilty of such negligence as in the eye of the law amounts to manslaughter.’ He also added that Jacob was a prosperous man, with a large farm and seven children.

In court, Coleridge (who would become Lord Chief Justice Coleridge), was a very powerful and impressive lawyer and speaker. He had celebrated his forty-nineth birthday a few weeks before Sarah died, and was considered by his first biographer to be a very adept thinker in court: ‘Coleridge relied always upon a particularly disarming suavity of manner that invited and usually obtained the confidence of prisoners and witnesses where blunter methods failed.’ He was to be involved most famously with the Tichborne case and with that of Constance Kent.

Charles Kingston, who knew him, wrote that ‘when Coleridge became a fully-fledged barrister he was one of the tallest and handsomest men of his time. Standing six feet three, with clear-cut features and a dignified carriage, he attracted attention at once, and his eloquence was compelling.’

Of course, Evan was primarily a Welsh speaker, as were most of the jury, and that was to be a factor. It is hard to imagine someone like Coleridge interacting with a simple farmer whose command of English was limited.

The doctors were all questioned, and there was much heated debate. Mr Fitzwilliams, on the bench, focussed on one of the main contentious topics – that none of the doctors was actually employed to treat or advise on Sarah’s illness. But Coleridge persisted, saying: ‘They were there as medical practitioners to pronounce upon the condition of the girl. We say they combined together and are responsible for the consequences of that combination. Fitzwilliams would not allow that line of thought to be developed. There was obviously a strong local feeling that the doctors were not directly to blame at all.

Doctors Fowler and Hughes, who had examined and girl (both alive and dead) had plenty to contribute. Naturally, they were both defensive, and keen to show that they had been wise to the fraud from the start. Their words stress the irrational and suspicious behaviour of the parents, as in Hughes’ account of the urine-soaked bed and Fowler’s direct and confident opinion: ‘Children that don’t take food in the presence of their parents are generally called night feeders and the disease characterised by want of hunger is called asitia. My opinion of the girl is that she was a night-feeder. I said the loss of the power of motion was attributable to hysteria.’

There was something of a developing confrontation between Fitzwilliams and Coleridge, and the latter desperately wanted the medical men to be committed; but Fitzwilliams was blunt and heavily reliant on the letter of the law as he saw it: ‘We have considered this case very carefully and by a majority of the bench we think that no case can be made against the doctors. Our opinion rests upon that of Mr Baron Alderson, who says that there must be some personal act committed…. The doctors were, if I may use the phrase, retained to advise the nurses if their advice was called for. The doctors came for that purpose and the nurses never asked for it.’

The Jacobs were admitted to bail, for £100 and two sureties of £50. What had also been on trial in the lengthy hearing before the magistrates was the probity and moral responsibility of the new medical profession. The British Medical Association had only existed for a decade, and the official register was new. The mix of medical men, ranging from those with wider (and metropolitan) experience down to local doctors whose knowledge would be more limited and more conservatively oriented, had been in focus, and reported on, with a local impact. Once again, as Richard Ireland has investigated, there was present the influence of a polarised community: the Welsh identity and sense of pride was also at stake: after all, the second, professional watch had been arranged by two Welsh-men, one at Guy’s and one in Carmarthen.

Evan and hannah Jacob were to appear at the Carmarthen assizes, charged with manslaughter. Everything was about to move up on a larger scale, and the nature of juries at regional assizes was to be a prominent feature here. Richard Ireland’s research on Carmarthen-shire juries has cast light on these problems:

…evidence brought before the Select Committee on the Administration of Justice in Wales 1817-1821, spoke of jurymen determining their verdicts before hearing the evidence…. Half a century later the same sentiments are still current. In 1877 an article in the Cornhill Magazine makes the first reference I have come across to the story of the eminent Welsh judge remarking as his hounds overtook a hare, ‘By God, a Cardiganshire jury can’t save her now!’

The language issue was always there too. Ireland cites the instance of a man called Evan Jones, who in 1866, addressed the jury in Welsh in a bigamy case, ‘assuring them that the charge had been contrived against him by his brother.’

The office of High Sheriff in Carmarthen goes as far back as the early sixteenth century, and there have therefore been assizes there since around that time; the Guildhall has been the location for the assize court over the centuries, still a dominant presence in the heart of the town. Twenty years before the Jacob case it had been in the very centre of the Rebecca Riots when toll gates were destroyed by bands of men in large numbers who roamed the shires of West Wales in disguise. Many attending the trial of Evan and Hannah would recall the events of 1843, when over 300 Rebecca rioters had fallen upon the town, the placards which had the word for ‘justice’ on them – ‘Cyfiawnder’. Expressed in Welsh, this was to carry a powerful irony in the minds of the locals. After all, also in the 1840s, many Carmarthen men had been sentenced to transportation after trial in the guildhall assizes, at the time of the Rebecca Riots.

Nicholson’s Cambrian Travellers’ Guide for 1840 describes Carmarthen vividly, and in complimentary terms: ‘The town is a mile in length, and half that extent in breadth, containing several streets well paved and lighted with gas, of which the two principal meet near the butter market which forms the central point. The old buildings have of late been modernised and new ones afford more comfort and displaying more taste have succeeded them.’

In the 1860s Carmarthen was a prosperous place, with strong literary associations, and a reputation as a centre of printing. That fairly comfortable world, with its many artisans, farmers and tradesmen was to be a place where everyone was looking the same way for a while – towards the fortunes of the tenant farmer and his wife from Llanfihangel-ar-Arth.

On 12 July, 1870, the presiding judge at the Carmarthen assizes was Sir James Hannen, born in 1821, the eldest son of the very wealthy London businessman, also a James Hannen. He was educated at the St Paul’s School and later at the University of Heidelberg. He was admitted to the bar in 1848 and came to specialise in commercial law. Just a year before hearing the Jacob case, he had been knighted and appointed a Judge of the Queen’s Bench. He was later to be involved in the famous Parnell inquiry, for which he was president.

The true bill charging the Jacobs with having ‘killed and slain one Sarah Jacob’ brought them to the dock, and against them, for the prosecution, were Coleridge again, this time joined by Hardinge Giffard. For the defence were Mr Bowen and Mr W. Michael. Giffard was to become the first Earl of Halsbury; he had begun his professional life as a journalist, but then took up law and became a junior prosecuting counsel at the Old Bailey, taking silk four years before he appeared at Carmarthen. More recently, he had failed to be elected at M.P. for Cardiff in 1868, but before the 1870s were out, he was destined to be Solicitor General and to be knighted. In 1885 he reached the office of Lord Chancellor.

‘Cyfiawnder’ was to resonate through the trial, and was ironically doing so even before the assize was commenced. As my previous comments about the established views at the time that Welsh and Irish juries did not want to convict and often went their own ways, there was also the issue of the place of Welsh in the courts. Shortly before the Jacob case became news, there had been a Times editorial (September, 1866) giving this opinion:

The Welsh language is the curse of Wales. Its prevalence and the ignorance of English have excluded and even now exclude the Welsh people from the civilization, the improvement and the material prosperity of their English neighbours. Their antiquated and semi-barbarous language, in short, shrouds Them in darkness. If Wales and the Welsh are ever thoroughly to share in the material prosperity… the culture and the morality of England, they must forget their isolated language and learn to speak English and nothing else…

This would be now considered more than a bit rich by the reading public of Carmarthen, Llandysul and Pencader, people all keenly aware that it was the English who had sent nurses from their fancy hospital in London, and young Sarah had died after the nurses’ intervention. English medical men had appeared to dominate the opinions on the medical aspects of the girl’s case, or so it must have seemed to many, as Fowler’s reports made it to The Times as well as to the British Medical Journal.

In addition to the problem of Welsh being used in the courts – something which had been contentious ever since the watershed of the Act of Union of 1536 when English was decreed to be the official language of the courts in Wales – there was the issue of the composition of the assize jury: the petty jury, in proper terminology. The Grand Jury had found a true bill, so an indictment was made, but now, as Hannen’s court was assembled, a jury of locals had to be signed up to be the ‘twelve good men and true’. The ‘Grand’ jury would be landowners, squires and men of wealth and status, but the petty jury in the 1860s, as we know from the qualifications for jurors, would be such types as farmers, craftsmen, shopkeepers, publicans, merchants and the like. The list for the area was composed of men who had a £10 annual freehold tenure or who lived in premises assessed by the poor rate at £20.

One of the central problems for trials in Wales (and also in other areas of Britain, depending on local conditions and attitudes) was that the jurymen knew that they were to be directed towards a verdict by the judge. When Hannen had arrived in Carmarthen, his presence bruited about and reported on, the middle classes would have been well aware that one of their own, Evan Jacob, a tenant farmer with a large acreage and who employed a servant, was up against it – faced with the vigour of the law as backed up by the Treasury: the government was prompting the prosecution, so it was very different from a normal police action or a personal action against someone.

A useful way to understand the attitudes of the local Welsh is to reflect on Richard Ireland’s conclusion after his study of Carmarthenshire juries. He wrote that ‘For the people of Wales the criminal law was part of a process of dispute settlement, not as yet the monopoly force of social control. The ‘independence of rural Welsh jurors should be viewed in this broader context, as should the reservations which were expressed in respect of it.’

But why did the government take the action of prosecuting? Judge Hannen, in his summing up, gave one reason: ‘If ever the Crown is to take a special part in criminal proceedings, it must be in cases of this peculiar and exceptional character. I make these allusions to the fact that this is what is called a Government prosecution, because that has been made use of as a topic in the speeches of the counsel who have addressed you.’ This very schoolmasterish explanation will not do. Richard Ireland has pointed out that a Treasury prosecution was a rare event in 1870, especially in homicide cases. This needs more enquiry. Why would the Crown take such an interest in a rural case at the far end of Wales when it was obvious that, the facts being clear at least in terms of what the doctors had explained, this was a case of manslaughter. It was not something on the scale of Chartism, or, as in 1812, the machine-wrecking Luddites, or a case of serious rioting on a wide scale as in the Rebecca disorders.

There had been Treasury solicitors since early times, and their role was to work for the Crown, Secretaries of State and the Attorney general. In the Jacobite rebellion of 1745 they had been notably active, given the brief of controlling prosecutions of the rebels (which extended across the country and were intended to lead to barbarous repressive punishments). In 1842, the Treasury office took care of prosecutions for 13 out of 23 government departments. Not long after the Jacob case, in 1876, the Treasury Solicitor Act made the Treasury solicitor in effect the forerunner of the Director of Public Prosecutions, and in 1885 he was officially given that title. But there seems always to have been confrontations and difficulties in the business undertaken by this branch of prosecutions. Even as late as 1906 there was a heated interchange in the House of Commons when several members confronted the Attorney General, Sir John Walton, over the case of Rex v Fowler. The Treasury had employed a man called William Richardson in court, and a member asked, ‘I beg to ask whether the Public prosecutor was aware when William Richardson became one of the prosecutors on behalf of the Crown… that he was convicted on 30th September, 1901 at Oxted petty sessions, of disorderly conduct, and was convicted on 12th January, 1903 at the same place, for disorderly conduct?’

This dominance and centrality had developed by the end of the century because, as Ireland argues, law and order became recognised as ‘a national rather than as simply a local matter’ because there was so much settling of potential charges out of court, and by not always moral or legitimate means.

The fact remains that the Crown made a special point of prosecuting a case which appeared to represent the success and remarkable impact of the forces of superstition and unreason in a situation of great emotive power, disseminated by the press in all areas of the land. Mr Michaels, for the defence, although speaking sarcastically for effect, was close to the truth when he said that they were dealing with ‘A case in which it is said we are sitting here in order to free the ignorant Welsh mind from the trammels of superstition and darkness’.

One rather less visible reason might have been the growing problem of child cruelty and a seemingly universal ill-treatment of children. Notions of neglect and deprivation, so much emphasised all the way through the trial, were ‘hot news’ across Britain at the time. During the 1860s there had been an increase in baby-farming, the crime in which babies were taken into lying-in houses for sums of money, as a remedy for the problem of illegitimacy. The trial of Charlotte Winsor in 1865 had alerted the public to the horrors attached to varieties of infanticide. The corpse of a baby had been found by the road near Torquay. A girl called Mary Harris was the mother and what emerged from the case was that Winsor ‘put away’ unwanted children for clients like Mary; she had choked, drowned and starved babies. Winsor was imprisoned for twenty years, and died behind the prison walls.

Crimes against children were very common indeed and the government were well aware of the huge scale and of the need to clarify the areas of homicide covered by infanticide and by manslaughter, and to make known their efforts towards suppression and reform to the general public. The jacob case of what was apparently starvation provided a perfect vehicle they could use to intensify their crusade to show that the problem was being faced and dealt with. As there was an epidemic of malnutrition and starvation in the streets, to contemplate a case of parents wilfully starving a child would have appeared as some kind of challenge to the government. The long-standing abuse of children in child labour, and the outrageous facts of pauperism in and out of the workhouses, could not be ignored by many who read of Sarah’s case. The word ‘starvation’ attracts attention in any context, but in this case, the irony could not be missed – that a child within the bosom of a loving family could still starve to death.

In the late 1860s the papers were crammed with tales of starvation, mostly linked to the failure of the poor law system, fear of the workhouse, and economic depression. With no welfare state, a labouring man out of work had to contend with imminent extreme want and the real threat of his children dying through starvation. There was a particular crisis in this respect in the years as Sarah lay in her bed: between 1867-1869 there were countless cases of children starving, as shown in the report by a Dr Lankester in March, 1868 to The Times, in which three small children died of starvation after their parents became too ill to work. The autopsy report pro to that of Sarah Jacob: ‘The elder was very puny for a child of seven years of age, and was rickety and very much emaciated. The intestines were completely empty. Death had been caused by convulsions brought on by starvation.’ A long letter describing the state of the poor in Poplar, included this statement: ‘This alien population – not easy to move and impossible to employ – now shares the starvation of the natives, and adds formidably to the legitimate burden of the parish.’ One of the worst reports was from Dublin, referring to a place called Bird’s Nest, a home for destitute children. ‘One of the Committee’ wrote to the press, saying, ‘Some of our little applicants would make the hearts of parents bleed in recounting the history of their short lives. Some have come to us of late with their bodies scarcely covered with rags, and their faces show that starvation had almost ended it work with death…’

In the 1860s this problem had another off-shoot, in juvenile crime. The penny dreadfuls at the time were full of tales about feral children around London, such as The Wild Boys of London – or the Children of the Night. John Springhall has pointed out that at the census of 1861 there were 4,038,000 people in Britain between the ages of 10 and 19. Wild children, street urchins and associated robberies were related to this general issue of children abused, neglected and pushed into criminality, and the garrotting panic of 1864-66 added to the problem, with gangs of men working with ‘wild boys’ robbed the wealthy and vulnerable on the streets at night.

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 like 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.

Hannen’s summing up, if we look at his first words again, illustrates perfectly the nature of this as a ‘test case’ – perhaps a public lesson about the problem of the cruelty and starvation of the children of the nation, as discussed earlier in this chapter. He said, as mentioned earlier, ‘Whenever the Crown is to take a special part in criminal proceedings, it must be in cases of this peculiar and exceptional character.’ The fact is that the Crown made the Jacob case ‘exceptional and peculiar’ by using the events and people as a weapon of safe and secure beliefs of rationality against the ‘ignorance and superstition’ of the more distant parts of the realm. The world of wise men, folk medicine, clairvoyance and all the rest in the perceived alternative society lying in the heart of Victoria’s realm, was under fire.

Hannen made the most of the expert witness testimony to ensure that the jury saw the case as an imposture, and here we arrive at the final argument against the defendants at the time in court: the direction of the jury by the judge. It was Hannen’s powerful summing up that led to his direction, after making clear exactly what constituted manslaughter in the alleged behaviour of the parents: ‘And that is the crime for which they are now charged, and that is the charge of which you have now to determine by your verdict, whether they are guilty or not. And now I leave the case in your hands.’

Directions to the juries in Victorian trials tended to have the persuasive rhetoric of authority, cloaked in seeming open-minded tolerance, as in Judge Wills’ words to the jury in the case of Adelaide Bartlett: ‘If you think it can stand, by all means take a different view. The last thing that would ever occur to my mind would be to feel a sense of embarrassment or annoyance, if you were to take a different view of the facts than that which presents itself to my mind.’ That, of course, was said after twenty minutes of explanation and analysis of alleged facts.

Richard Ireland has argued that the Jacob trial should really have been elevated to the status of being a leading case: ‘a potentially leading case ended in a tawdry prison sentence and was then returned to a community where it still, to an extent, reverberates in households which have never seen a law report.’

Evan and Hannah were found guilty of manslaughter, but the foreman of the jury added: ‘We wish to recommend the female prisoner to the merciful consideration of the court because we believe she was under the control of the husband.’ This meant that she should have a shorter sentence. Hannen agreed: ‘The sentence that I shall inflict on you, Evan Jacob, is that you be imprisoned and kept to hard labour for twelve calendar months; and that upon you, Hannah Jacob, will be more lenient… and it is that you be imprisoned and kept to hard labour for the period of six calendar months.’ Hannah was at the time pregnant with her eighth child, and she was to go on to have ten, although the last one (born in 1878) died when very young. Hannah and Evan carried on their life together, farming at New Inn, and they still had over thirty acres.

What sort of prison experience would they have had when they arrived in Swansea prison? In 1870 the prison system had only quite recently been transformed from a muddle of different local gaols. For convicts such as Evan, ‘hard labour’ was the key concept for punishment. It meant that men were expected to be put to work so that they were breathless and fatigued. There was a mix of various versions of tough work in the prison regime known as ‘hard labour.’ There had always been hard labour in the houses of correction and in many local gaols, but from the 1840s through to the 1877 nation-alisation of the prisons, the demanding work in prisons was mostly a mix of the crank, the treadmill, lifting shot (cannon balls) and picking oakum. Added to that could be any kind of labour. Prisoners had different classifications, and the work they did depended on their status. Diet also related to classification, and of course male and female diets were different. As is often explained in prison histories, the treadmill was the main instrument of hard graft in the prison. In Stafford prison, for instance, there were eight treadmills used in 1883. The cranks were usually in the cells, but some gaols had crank sheds for cripples to use – those not capable of using the treadmill. Oakum picking was for women or for weaker prisoners, or even juveniles, but men, after the treadmill, would also transfer to the oakum picking room. Oakum picking was the chore of unravelling old, tarred ropes to make new fibres which could be used to caulk ships’ fabric.

Basically, in the mid-Victorian years, and through to the system led by Edmund Du Cane from the late 1870s, was founded on hard physical work, moral and religious reflection and severe punishment. The ethic of work was something profoundly embedded in the whole society; Samuel Smiles’s key work, Self-Help (1859) was a typical tract on that theme. Paintings often depicted the dignity of labour, as in Ford Maddox Ford’s picture called ‘Work’ (1865) in which God-like labourers dig the road, observed by men in suits, including Thomas Carlyle, who played his part in writing eulogies to self-help and the work ethic.

The Jacobs were in Swansea prison which had only quite recently been rebuilt after its first incarnation as a bridewell, or house of correction, in which debtors were kept alongside criminals; in 1861 the new prison was up and running, housing both men and women, and continued to do so until 1922. The governor waiting for the Jacobs was William Cox, who had taken the post after his father’s death in 1843, as often happened in the prison service, because families had usually run the old houses of correction. The new prison had a capacity of just over 200 inmates, with male prisoners being around a figure of 170 and females averaging around 50-60 in these years. Hannah would have been in a separate wing from her husband, and they would not have met during their stretch inside.

In her book, A Wonderful Little Girl, Sian Busby, traced the family history of the Jacobs after the return to normal life, and she found that their children had dispersed across the country to build new lives. Evan died in 1895 at Crosmaen of an illness called ‘waxy liver’ – formally known as lardaceous disease, in which the fibrous tissues of the organ degenerate into a white viscous substance. Hannah died in 1907. Margaret, Sarah’s little sister who was put to bed with her for warmth, Busby found to be ‘still alive a few months before the outbreak of the Second World War.’ Perhaps the success story is found in little David Jacob, who became a curate in Glamorgan and qualified in Divinity at Lampeter. The last of all the Jacob children to die was Rachel, who died in 1958 at the age of 85. Clearly, as both Busby and Richard Ireland have discovered, there is still both an oral history and a clutch of memorials in the churchyard relating to the Jacobs at Llanfihangel-ar-Arth. Sian Busby pointed out that ‘All Sarah’s siblings took whatever they knew with them to the grave.’ That sentence has a profound impact, coursing through the whole story, largely because those other children were silent witnesses to the truth – or so we might like to think. Arguably, they were excluded, protected, or in some way simply kept distracted and busy, their questions either never being asked or never being answered.