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.