CHAPTER XII.

THE C.C.R.

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. From the decision of the judge an appeal may be carried right

up to the House of Lords.

But in criminal cases, where the Queen is treated as plaintiff, there

was anciently no such method of reviewing the judge's decision. Now a

special court has been established, embracing all the common law

judges of the High Court, who sit in a body to decide these questions.

It was to this tribunal that Tressamer had intended to resort.

But though the prisoner's legal advisers, both her former and her

present one, looked to this court for their client's deliverance from

the extreme penalty of the law, the general public turned to a very

different remedy, that of agitation, to be exerted upon a very

different authority, an impressionable politician in the Home Office.

Up to the hour of her conviction public opinion had run strongly

against Eleanor. Whether this was deliberately aimed at by Tressamer

or not, it was the consequence of the policy adopted by him. But no

sooner had the law pronounced her doom than the tide turned with

startling rapidity, and a gigantic agitation was at once set on foot

for a reprieve.

Clergymen of mild manners and susceptible hearts went round canvassing

their parishioners for signatures to petitions. Legal gentlemen,

whose practice did not yet correspond to their own opinion of their

deserts, rushed into print with gratuitous opinions on the evidence

and the various points in the case. Newspaper reporters, sensitively

alive to the first symptoms of a 'boom,' wrote up the tragic situation

with graphic pens. They described the youth and beauty of the

prisoner, her gentle bringing up, her desolate condition. Even her

relations with the counsel for the defence, of which some inkling had

transpired, were freely glanced at, and the reader was invited to

sympathize with the despair of the lover as well as of the beloved.

Then the illustrated journals took it up. They had already given

pictures of the scene of the crime, of the deceased, and of other

characters, including the prisoner. But they now threw away the blocks

representing Eleanor, and which had originally done service in

America, where they represented a female temperance lecturer of

moderate attractiveness, and came out with full-page illustrations,

taken in one case from the portrait of the most charming actress on

the Parisian stage, and all calculated to feed the growing flame of

sympathy with the victim of what was now boldly referred to as a

'miscarriage of justice.'

The sporting fraternity, too, rallied round Eleanor almost to a man.

A tremendous number of wagers had been made as to her fate, and

those whose success was involved in her escape neglected no means

of bringing about the desired end. And as public sentiment has not

yet sunk quite so low as to tolerate petitions and meetings against

clemency, the natural effect of all this was to make it appear that

the suffrages of the whole community were on one side.

Even the jurymen began to repent their verdict. Several of them

allowed themselves to be interviewed by pressmen, and went so far as

to state that they had given their verdict with much misgiving, and

hoped that a commutation of sentence would follow.

Petitions flowed in upon the Home Secretary. Meetings were held, not

only in Porthstone and the neighbouring towns, but all over the

country. Finally the excitement culminated in a monster meeting in

London itself, in one of the largest public halls of the Metropolis,

at which the chair was taken by a nobleman, and the speakers included

a canon of the Church of England, a Roman cardinal, a leading light of

the Wesleyan denomination, a major-general (on half-pay), and an

ex-colonial judge.

The office of Home Secretary happened to be held at this time by an

experienced member of the legal profession, and it is well known that

trained lawyers are far more cautious in condemning, and usually

milder in punishing, than laymen. The Home Secretary wavered. He sent

for the judge who had presided at the trial, and Sir Daniel Buller,

who had had time to recover from his little pique against the

prisoner's counsel, infused his own doubt into the Home Secretary's

mind.

At last the Minister issued a decision. It was a thorough specimen of

the not-guilty-but-don't-do-it-again order of judgment. It stated that

the Home Secretary saw no reason to doubt the substantial guilt of

Eleanor Owen, but that as, in his opinion, the evidence was of an

imperfect character, and failed to throw a clear light upon all the

circumstances of the case, including the motive for the crime, he had

advised her Majesty to commute the sentence to one of imprisonment for

life.

The very day that this unsatisfactory announcement appeared, thirteen

judges sat side by side at the Royal Law Courts to consider the point

reserved.

Charles Prescott represented the prisoner. If the judges felt any

surprise at this change of sides they were careful not to express it.

Young Mr. Pollard appeared on behalf of the Crown, but he was led by

the great Appleby, Q.C., and, as a matter of fact, was not allowed to

open his lips once during the proceedings.

Prescott's argument was long and elaborate. A crowded bar were present

to hear the celebrated case, and the feeling was universal among them

that he had never shone so conspicuously on any former occasion. He

took up the history of the law of murder from its earliest stages, and

along with it he traced the gradual evolution of circumstantial

evidence. He showed with what suspicion and reluctance the latter had

been gradually admitted into our courts, and how succeeding judges had

been careful to fence it in and restrain its application. Then he

turned to the particular rule of law which Tressamer had relied on in

the Assize Court, and repeated and emphasized the arguments made use

of by him. He wound up with an impressive appeal to the judges to lean

in the prisoner's favour, reminding them of the old maxim that a

statute must be construed in favour of life, and asking them to apply

the same principle in expounding the common law.

Then Appleby, Q.C., addressed the court. In reply to Prescott's last

observations, he said that imperfection of evidence was a good ground

for commutation of sentence, but none for releasing the prisoner

altogether. This was, of course, a reminder to the judges of the Home

Secretary's decision, announced that morning. Then he proceeded to

argue the case on general lines.

He began by stigmatizing Hale's precept as a mere piece of advice to

juries, rather than a maxim of law. He went on to say:

'The most serious difficulty in following this rule is to know how

far to apply it. How much of the deceased's body is it necessary to

produce in order to justify a conviction? If the head had been

discovered, surely my learned friend would not venture to argue that

that was not sufficient. It seems clear that it must be a question of

fact in each case, and a question of fact is eminently one for the

jury, and where they are satisfied that a death has taken place, it

would be the height of folly for their verdict to be set aside because

there was not exactly what would enable a coroner to hold an inquest.

'In the present case, however, as a matter of fact, an inquest has

been held. The proceedings have gone on all along on the assumption

which every reasonable man must have formed, namely, that the body of

the deceased had been committed to the waves. To set aside the

conviction under such circumstances is simply to encourage crime, and

to hold out a guarantee of safety to every murderer who will take a

little trouble to conceal the remains of his victim.'

When Appleby had finished, Prescott made a brief reply. He confined

himself to saying that this was a case of interpreting the law, and

not of framing it anew on the ground of expediency. But, he added,

even if the court had to decide without reference to authority, he

should still be prepared to urge that the danger of convicting one

innocent person must always outweigh that of granting immunity to any

number of felons, and he reminded their lordships how very rarely such

a circumstance as the present occurred in actual experience.

When the judges came to give their opinions it was at once evident

that the court was divided. In accordance with old etiquette, the

youngest judge delivered himself first, and he, with some hesitation,

declared in favour of the prisoner. But the next three all took the

opposite side, and did so with great firmness. After them came another

who supported Prescott's view, and then one who sided against him. Sir

Daniel Buller repeated his decision at the trial, and Sir John Wiseman

dwelt with elaboration on the reasons which swayed his cautious mind

to the opposite view.

But the member of the court who was listened to with most attention

by his brethren was Sir Stephen James, who had made a European

reputation by his studies in criminal law. His works on the subject

were in every library, and his mere dictum carried almost as much

weight as a decided case. When it began to be evident that he was

going in the prisoner's favour, Prescott took courage again.

His lordship's decision was brief, and to the point.

'When I am asked to apply a rule of law to a state of facts,' he said,

'and it appears doubtful whether or no the facts are included in the

strict wording of the rule, I think it rational to look behind the

words to the meaning, and to ask whether the reason for the rule

applies with equal force to the facts now before me. Now, the reason

I am able to discover for Sir Matthew Hale's rule is the danger of

condemning anyone on a capital charge when you cannot be quite sure

that a capital crime has been committed. It is no use to say to me

that the jury believe this, that, or the other. The jury may believe

it will be a fine day to-morrow, but that does not justify me in

condemning a man to death on the assumption that it will be a fine

day. The question is whether the jury are justified in coming to their

verdict by cogent and decisive evidence. In this case I can see

nothing of the sort. An eccentric old lady, with a mania for hoarding

jewels, has disappeared in the night, carrying her jewels with her. A

hand, identified as hers, because of the rings on it, was found on the

beach next day. On those grounds, practically, we are asked to say

that she is dead. I can only say that I decline to come to any such

conclusion, and furthermore, I am quite satisfied that if Sir Matthew

Hale were sitting on this bench to-day he would be in favour of

quashing this conviction.'

Two other judges at once subscribed this judgment, and finally, when

all but the Chief Justice had spoken, it appeared that the court so

far was evenly divided, and that Lord Christobel held the fate of the

prisoner in his hands.

Possibly his lordship was not ill-pleased at this. He was a past

master of dramatic effect, and in his hands the ancient dignity of

Lord Chief Justice of England lost nothing of its imposing character.

It may be added that it lost nothing of that higher dignity conferred

upon it by the Gascoignes of another age. Lord Christobel had shown on

more than one occasion that all ranks, even the highest, were equal

in the eye of the law as administered by him. He was the scourge of

truckling magistrates, and a thorn in the side of those petty tyrants

whom our peculiar system allows to flourish in rural districts in the

degraded robes of justice.

He did not long keep the court in suspense. In a gracefully-worded

judgment he endorsed the arguments of the prisoner's counsel, and

pronounced the conviction of Eleanor Owen to be void in law. The

prisoner was to be discharged forthwith.

Hardly did Prescott wait for the closing words of the judgment before

rushing out to the telegraph office at the entrance to the Law Courts,

and despatching a message to Eleanor, who was still in Abertaff gaol.

He followed this up by thrusting a few things into a bag, cashing a

cheque, and hurrying to Paddington, where he caught an express for the

county town.

Within four hours he was in Eleanor's presence. She had waited for

him in the prison, and now put on some outdoor things. He led her to

the door, where the governor took a courteous leave of them, and they

passed through the gates.

When she found herself for the first time in the open air, Eleanor's

limbs shook beneath her. She looked wildly round, as if fearing to

behold some disagreeable object, and then begged Prescott to take her

to a seat.

They had emerged into a wide, dirty street, formed by the prison wall

on one side and a row of shabby little houses and shops on the other.

A few boys were playing marbles on the path, and Eleanor never saw the

game afterwards without remembering that evening.

The sun was about to set as they took their way by the quietest route

to a little public garden in the neighbourhood, where was a grass plot

and some seats. There they stopped, and sat down for a short time to

decide on Eleanor's future steps.

Eleanor's first words struck heavily in the ears of her companion.

'I almost wish myself back again. Where am I to go now?' And she

shivered slightly.

'Oh, Eleanor, don't say that! To-night you must go to some hotel in

the town, but to-morrow we will go up to town together, and I will

find you lodgings for a time.'

She turned and looked at him sorrowfully, not reproachfully, and shook

her head.

'No, no. You forget what I said to you before. I have accepted your

friendship, and I need not tell you how grateful I am for it, and for

your efforts in obtaining my release. But I am still where I was, as

far as the world is concerned. They will go on believing me guilty,

and while they do I cannot let you associate with me.'

'Oh, why not? Surely you know by this time what you are to me? Need I

tell you, Eleanor----'

She put up her hand.

'Hush, Charles!'

The word sent a thrill through him. He looked round. Some children

were engrossed in a game a hundred yards and more away. The sunlight

was fading from gold to crimson across the roofs and chimneys beyond.

The whole scene was still and Sabbath-like. A great peace seemed to

speak to him, and bid him take courage and hope for better things. He

turned again to Eleanor.

'Thank you,' he said, in acknowledgment of her tacit confession. 'But

oh! if I am satisfied, what need you care for others? Listen: I have

some money--more than enough to keep us for some years. We will go to

Australia, where they have not heard of us; or, if they have, we will

change our names. I can join the bar there, and do as well as here.

Are you not my only happiness? What are other things compared to

that?'

Again she looked at him sorrowfully. Again she shook her head. Then

she turned and gazed into the green and crimson of the sunset while

she spoke.

'You would not speak like that if you knew me. Do you suppose I have

not thought of all these things during my weary prison hours? I have

done nothing else since I saw you, since I saw you and knew you loved

me, Charles. But I must be strong where you are weak. I must decide in

this matter without heeding your wishes. I must decide as your mother

would, if you asked her. Would she wish you to marry a convicted

murderess? I have to speak plainly, because I want you to understand

me at once, Charles, and spare me the pain of further talk like this.

I shall go to London by myself, and I shall let you have my address on

the strict condition that you are never to come and see me till my

character stands clear again. You may write to me sometimes, not

often, but if you break the condition and come to me, I shall move

somewhere else and hide myself from you altogether. Now let us go and

find a hotel for me, different from yours.'

She made a movement to rise. Charles looked round once more. The

children had finished their game and disappeared. The brilliancy of

the sunset was dropping into dusk and gray. They were alone in the

twilight, beneath the faded trees.

'Eleanor, one pledge that you will not forsake me!'

She turned. Their eyes met; then their lips. The silent, close embrace

lasted but a minute, though to both of them it seemed longer than the

whole of their previous life. Then they arose and went forth out of

their poor paradise, like Adam and Eve, with the world lying empty and

desolate in front of them.

The Queen Against Owen · 第 12 / 13 章