Those responsible for the greatest crimes are often best placed to avoid punishment. No doubt this is because they hold political and economic power. Sometimes the mighty fall, but rehabilitation may also be easier for them.
I recently came upon an account of the trial of Thomas Picton, governor of Trinidad at the end of the 18th century. In 1806 he was tried before Lord Chief Justice Ellenborough in London and convicted of the torture of a 13 year-old girl, Louisa Calderon.
This was a most unusual case. Violent ill-treatment of the slave population of West Indian colonies was routine and tolerated. It was not until 1811 that a planter was convicted of murdering a slave. Louisa Calderon was not a slave but the descendant of slaves. The title page of the report describes her as “a free Mulatto and one of her Britannic Majesty’s subjects”.
Trinidad was seized by the British from Spain in 1797 and Picton, a rising young army officer, was placed in charge. He soon acquired a reputation for brutality towards the large slave population as well as towards his white subordinates. In 1802, he was replaced as governor by a commission led by a senior British official, William Fullarton.
Shocked by Picton’s violent behaviour, Fullarton charged him before the Privy Council with a series of murders of slaves and with the hanging without trial of a young soldier accused of rape. Though the charges were pursued over three years, they were all eventually dismissed.
The case of Louisa Calderon was different. Fullarton again demanded that Picton be prosecuted. Louisa was suspected of assisting the perpetrator of a robbery, but on being examined by a magistrate she denied it. Having no authority, according to the report, “to take any coercive measures to extort confession”, the magistrate referred the matter to Picton, whose reply, in his own handwritten letter produced in court, was the stark instruction “Inflict the torture on Louise Calderon”. The report is illustrated with a gruesome drawing – produced in court – of the torture taking place. Louisa is shown suspended from a pulley, her foot held in place by a sharp piece of wood. This form of torture became known as “Pictoning”.
Picton was tried at the Guildhall in London. The prosecution was conducted by the celebrated advocate William Garrow, some of whose cases, including this one, featured recently in a television series. “In the progress of this trial”, he began, “we shall learn that a governor of one of our colonial dependencies has abused the situation to which he was raised, and has disgraced the country to which he belonged by inflicting torture on one of his Majesty’s subjects…”. Given the incriminating letter the facts were not disputed. And the assault on Louisa was clearly in breach of English law. By statute (42 George III,c.58) it was provided that any person in His Majesty’s service who committed an offence in exercise of his official duties could be tried in England. Though torture had been used to extract information under earlier monarchs, Blackstone made it clear that “no such proceeding was allowable by the laws of England.”
The only argument open to the defence rested on the very recent status of Trinidad as a possession of Spain. Spanish law still applied, the defence claimed, and it permitted torture. Notwithstanding the fact that both defendant and victim were British subjects and Trinidad was a British colony, the judge left it to the jury as a question of fact which law applied and whether the application of torture was allowed by the existing law of Trinidad. The jury found Picton guilty.
Picton’s counsel moved for a new trial on the grounds that there was no evidence of malice and that if he had acted illegally he had done so on advice. Although neither ground seems remotely plausible, a new trial was granted. And, eventually, the case was allowed to drop.
Picton resumed his military career. Wellington recruited him for his Peninsula campaign in Spain. Though, according to Wellington, he was “as rough, foul-mouthed a devil as ever lived”, he was a brave soldier. Knighted in 1813, he died two years later leading a charge at the battle of Waterloo. By then a Lieutenant-General, he was the highest ranking officer to be killed there. His military achievements are commemorated by a monument in St Paul’s Cathedral and a portrait in the Guildhall at Carmarthen, near his birthplace.
That portrait provided a curious sequel. The room in which it had been displayed since 1829 had become the local court, and the picture was behind the judge’s chair. In 2011 local campaigners demanded its removal. “I find it very offensive”, said a local solicitor, Kate Williams, “that someone who was not only a known slaver but also allegedly tortured a slave (sic), should have his picture in a place where the values of justice are served. It’s fair to say that he has a murky past and it is inappropriate to have his picture in a modern court of law”. A local spokesperson said that although Sir Thomas was a cruel and brutal governor of Trinidad he was “a man of his time” and should not be judged by today’s standards. As far as I know the picture remains in its place.
My sympathies are with Ms Williams. But it is a perennial problem. How do we put right the wrongs of the past?
Sir Geoffrey Bindman QC, NLJ columnist & consultant, Bindmans LLP
Geoffrey Bindman recalls an unusual case of crime & punishment…