Allen Upward

“ The judge, accustomed to have the eyes of men upon him, calmly betook himself to letter-writing. The high-sheriff, not so accustomed, fidgeted in his seat, looked round and counted the javelin-men in court, wondered how long the grand jury would be, and remembered, let us hope with remorse, the time when he was a grand juryman himself and wasted the time of the county by unnecessary questions to the witnesses. The fact is that the grand jury is played out. Everything for which they originally existed is now done by somebody else. ”

“ Technically it is so, of course; but who is the real prosecutor? Who has been the moving spirit all along—if not [Pg 137] the prosecutor, then the persecutor? Who has lost, or professes to have lost, his wretched jewels? Who, the moment he heard that the crime was discovered, turned round and hurled his brutal accusation at this helpless girl? Who rushed off to lodge his information, so as to be beforehand in case any information were to be lodged against him? Who instructed the solicitors at the inquest? Who gave evidence there and at the police-court? ”

“ Goodness me! that’s just like you laymen. You keep back the chief points in a case, and then you’re angry with us because we don’t guess them by instinct. Why didn’t you tell the judge this when he was examining you?’
‘Because it wasn’t said in the prisoner’s presence.’
‘Pooh! Why, it was evidence of motive. But there, it’s no good trying to explain the law of evidence to you. If any thing’s gone wrong, you have yourself to thank for it—a good deal, that’s all. ”

“ It was once the law that when a prisoner was accused of murder by a coroner’s inquest, then the jury in this court were not entitled to bring in a verdict of acquittal unless they at the same time, and by the same verdict, indicated the person who was really guilty. If that were still the law—and I am glad it is not—but if it were, I should not hesitate for one moment in pointing out to you at least one person who is more likely to have been guilty of this crime than Eleanor Owen. ”

“ The prisoner, Eleanor Owen, is accused of the most serious crime, short of treason, known to our law. Gentlemen, it is not for you to try whether she is guilty. You have to hear the witnesses who will be sent in before you on behalf of the Crown, and if you are satisfied that they are speaking the truth, and the effect of their evidence on your minds is such as, if uncontradicted, to raise a fair presumption of the prisoner’s guilt, then it is your duty to find a true bill against her. ”

“ There is no doubt the old woman has been murdered. I don’t see how it could have been done by anyone outside the house; and then there is the blood on the door-handle. I may tell you that, even before I knew how you stood, in reading the brief I felt a sort of hesitation—that is, I couldn’t get that feeling of confidence that one generally has in one’s case when the evidence is clear. I felt as if I [Pg 27] shouldn’t put much heart into the prosecution. But, still, I don’t see what defence there is.’
Tressamer listened in silence, and let a moment or two go by before he gave his decision. ”

“ Where a life is at stake, to indulge in your freaks of eccentricity! It is murder morally. What are you better than the man who killed that wretched woman?’
Tressamer shook with anger.
‘Be careful, Prescott! I will stand a great deal from you, but you are going too far now. You know as well as I do that her life is in no danger. What is old Buller’s opinion worth on a criminal case? Wiseman is worth ten of him, and he is in our favour. ”

“ Gentlemen, I ask you frankly not to believe it. I ask you to discount her evidence by the evident ill-feeling she manifested. I ask you to believe that the last footsteps were those of the murderer, and that they were heavier because they were a man’s.
‘What else is there against the prisoner? I ask, what else? She came down late the next morning, forsooth! That is the reason why you are asked to [Pg 146] send her in her youth and beauty to a felon’s doom. Incredible! Monstrous! As if we all did not constantly get up late, for some reason or another. ”

“ Yet even the javelin-men were cast into the shade by the other great feature of the assize week. The crime of murder remains, after all is said and done, the one thing which most fascinates the public mind. And when to murder is added mystery, and when that mystery centres round the figure of a woman, and when that woman is young and beautiful, and in a social position which does away with the presence of squalid details or coarse motives, the public may be pardoned if they take the very fullest interest in her fate. ”

“ When he is giving you the most rope, he is getting ready to come down on you most heavily at the end. I think you’ll find it a weak jury. They will do pretty well as the judge tells them.’
‘Don’t you be afraid, Charlie,’ retorted the other in the same unnaturally careless strain; ‘it’s my case, and I know how to manage it. I’ve sworn to save her, and, by God! I’ll do it, if I have to declare I did the thing myself! By Jove, didn’t I touch up that scoundrel in the witness-box, though! You saw me, Beltrope?’
He called to another barrister, who had been present in court the whole morning. ”

“ There are none of the elements present which may, and often do, justify a jury in reducing the charge of murder to that of manslaughter. There is no question, so far as I have been able to discover, of sudden provocation, of accident, or anything of that sort. Whoever committed this crime must, if you believe the evidence, have done so knowingly, designedly, and with premeditation, and therefore your finding, if you find against the prisoner must be one of wilful murder. ”

“ Just as I was about to enter it the door opened, and to my astonishment Eleanor herself emerged. I gazed at her retreating figure with a sort of stupid fascination for some time, and then recovered myself, and went in. I had taken off my boots outside, and hence, I suppose my footsteps sounded light as I went upstairs.
‘Well, do you want more? Do you care to hear how I killed her; how I stabbed her in her sleep, lowered her through the window, and came down with the jewel-chest in my arms? I had to mutilate the corpse; the weight would have been too great for me at once. ”

“ Pollard: ‘I beg your lordship’s pardon.’ To witness: ‘You are the nephew of the deceased, and have just returned from Australia?’
‘Yes; I came back to my aunt.’
‘After making some money out there, I believe?’
‘I object!’
This interruption, it need not be said, came from Tressamer. He had risen to his feet, and put on that scowl of scornful indignation with which an experienced counsel knows how to daunt a young beginner and make him feel he has committed himself.
‘My lord, my friend cannot prove that, and if he could it cannot possibly be evidence against the prisoner. ”

“ For when a witness exhibits such recklessness and malice and wilful perversion of the truth in a case of this solemn character, I cannot willingly believe that any jury of Englishmen will consent to take away a human life on such testimony. ”

“ When a man is going to do a wicked and criminal act he does not call witnesses around him. No, he avoids all human sight, he perpetrates his deed in secrecy, and all that we can do is to seek to penetrate the mystery by such means as are at our disposal.’
Impression confirmed that judge is against the prisoner. Tressamer looking slightly anxious.
‘The question for us, therefore, or rather for you, gentlemen’— (the jury look important) —‘is not whether the evidence is circumstantial or not, but whether it is sufficient to convict the prisoner. ”

“ The fact that the prisoner is charged with the deliberate murder of her friend—I may almost say her benefactress—with whom she had been living on terms of intimacy for a considerable time, and for no motive that has yet been suggested except a low and mercenary one, is calculated to arouse a natural repulsion in the mind, and to indispose it to believe that the charge is well-founded. But, gentlemen, these things, as they come before you, are matters of evidence. ”

“ Gentlemen, every case which comes before a criminal court is grave and important. In this case, it is true, the life of a fellow creature is at stake, but that consideration ought not to affect you one way or the other in bringing to bear upon the evidence before you that impartiality and cautious discrimination which it is the duty of a jury to apply indifferently to every matter that may come before them.’
A slight sensation of relief in the jury-box. Among the audience an impression that his lordship is going against the prisoner. ”

“ The evidence against you is simply overwhelming. Probably I am the only man in the world who believes in your innocence.’
‘Except the murderer,’ she interrupted.
‘Except the murderer, of course. But what I want to say is this—as things stand now no jury that ever breathed would acquit you. Only a miracle can reveal the truth. But what I can do, and mean to do, for you is to save you on the ground I have told you of. You must expect nothing more.’
‘George, it will kill me! Alone, hated, abhorred, [Pg 38] what use would my life be to me when the whole world believed me guilty? ”

“ In your hands are life and death! The hangman is your instrument; the judge upon the bench is but your assistant. Seek not to shirk your liability; do not trust to others to shield you. On the way in which you discharge your duty to-day depends the most solemn and awful of all considerations—a human life. ”

“ If the witnesses you are about to hear satisfy you that there is a primâ facie case made out against Eleanor Owen, that there are grounds for suspicion which she ought fairly to be called upon to answer and explain away if she can, then it is your duty [Pg 56] not to hesitate, but to bring in a true bill for murder. And I must tell you, gentlemen, that so far as my reading of the depositions has guided me, this is not a case in which the crime admits of being reduced to any lesser charge. ”

“ It is one of those peculiarly difficult cases in which the mind is perplexed between its desire to mete out punishment for a singularly atrocious crime, and its inability to disentangle the knotted skein of mystery which shrouds the whole circumstances of the affair. ”

“ The law of evidence is the accumulated experience of the ablest intellects that have adorned that Bench of which I am so unworthy an occupant.’ (Strong impulse on part of jury to murmur ‘No,’ manfully suppressed.) ‘And in applying it I can only say that I have never personally laboured under any hesitation as to its general soundness, though I may occasionally doubt as to its applicability to particular instances.
‘You will remember that allusion was made by the prosecution in their opening to the supposed existence of certain valuables, the property of the deceased. ”

“ It is an impulse with all murderers to conceal the traces of their guilt. They dig holes in the earth and bury it, they carry it into the wilderness and hide it, they sink it in the depths of the sea. But the earth will not contain it, the wilderness betrays the ghastly secret, the waves cast up the horror.’
His voice rang through the crowded court like that of one possessed, and every man trembled. ”

“ The Court for Crown Cases Reserved is a modern institution, whose workings are not always quite understood by the public.
In every case which is tried before a jury there are two questions to be decided. The first is whether the evidence produced by the plaintiff alone is sufficient in point of law to justify a verdict. The second is whether the balance of evidence at the end of the trial is in favour of the plaintiff or the defendant.
The first of these questions is for the judge, the second for the jury. From the verdict of the jury there is, strictly speaking, no appeal. ”

“ These extracts, taken together, seem to me to throw a most interesting light upon the subject of trial by jury—the object of a sneer in one of the above quotations. When it is possible for a number of educated minds, engaged in highly intellectual pursuits, to take such opposite views of the same set of facts, it may surely be urged that, if miscarriages of justice occasionally take place, they are due, not so much to any defects in our judicial system, as to those native diversities of the human mind which no legislation can remove. ”

“ But he sat pale and rigid, tearing off the feather of a quill with his teeth, but showing no other sign that he had heard the judge.
‘It is the prisoner who must suffer most by such a line of defence.’ (Here Eleanor looked up suddenly, as if she had only just begun to pay [Pg 173] attention to what was going on.) ‘Its natural effect on your minds must be to induce you to ask yourselves not the real question before you, namely, is Eleanor Owen guilty or not? But this other question: which is guilty, Eleanor Owen or John Lewis? And to that you could, as conscientious men, give only one answer. ”

“ He (Prescott) looked pale and dejected; but Tressamer rushed into the place in a state of exaggerated buoyancy, and loudly called for a bottle of champagne.
‘George, how goes it?’ cried his friend.
‘All went merry as a marriage-bell,’ returned the other. ‘Have no fear; keep up your heart, old man. Leave it to me; I’ll get her off. Much obliged to you for going away, though. Young Pollard did come some croppers, I can tell you. Buller’s against us, of course, on the evidence; but what do I care? I’ll get the jury, see if I don’t. ”

“ Eleanor stared at him.
‘In no danger? What do you mean? Is the murderer discovered?’
‘No, and never may be. But neither is the body.’
‘Why, what difference does that make?’
‘Don’t you know?’ answered the barrister. ‘I thought most people knew that till the body was discovered no one could be convicted of murder.’
A ray of hope shone out in the prisoner’s face.
‘Then do you mean that Miss Lewis may be alive still?’ she asked quickly.
‘No, no. Nobody doubts that she is dead, nor [Pg 37] that someone has killed her. But the point is this, that you cannot be legally tried and convicted. ”

“ Every case that comes before them now has already been investigated once by the committing magistrates. Their duty is simply to accuse the prisoner, nothing more; and it would be quite sufficient if [Pg 58] they would just read the depositions and sign the indictment. But man, brief man, placed on a grand jury, and shut into a room without the interference of a legal authority, delights to show himself off by vain and superfluous inquiry. And hence it was that more than half an hour elapsed before the foreman was seen returning into the court with a trumpery indictment for larceny. ”