It is very difficult to say whether the change in the practice of our
courts, by which prisoners are allowed counsel for their defence, is a
real advantage to them or not. It is probable that in most cases the
right of reply conceded to the prosecution, and the loss of that
assistance which the judge formerly thought himself bound to afford
the accused person, more than balances the advantage of a practised
defender. Indeed the privilege of reply on the part of the public
prosecutor seems a rank injustice. He brings the charge with all his
materials prepared; he is bound to establish all the facts clearly,
and at once, so as to leave no reasonable doubt. The prisoner replies
by his counsel to an accusation made; and if that reply is
satisfactory to the jury, the trial should end there, with the
summing-up of the evidence, and the exposition of the law by the
judge. Can any equitable motive be shown for granting the accuser the
last word? I do not think it.
The impression made by the speech of the counsel for the defence on
the trial of Chandos Winslow was very great. It carried the jury
completely away with it; and one of them whispered to another, that he
did not think they need hear any more evidence. It seemed to him that
there was no case for the prosecution.
The bar, who regarded it critically, praised it amongst themselves
very much, and took especial notice of the manner in which, as one of
them expressed it, "Sir ---- got lightly over the soft ground." They
were not all sure of Chandos Winslow's innocence; and during the
greater part of the speech, they even doubted whether the learned
counsel would get a verdict, though they generally agreed he ought.
But at the end, when he so boldly declared that he could prove an
unexceptionable alibi, their opinions changed, for they knew he was
not a rash man, or one to risk the whole success of his case by a mode
of defence the slightest shade of suspicion attaching to which, would
strengthen every unfavourable impression regarding his client.
The witnesses for the defence were called as soon as the speech was
concluded; and all the first were, contrary to general custom, those
who could speak to character only. Old servants, old friends of the
family, tenants, and neighbours were examined, and each testified with
zeal and affection that the prisoner was a man much more likely to
save life than to take it. But it was evident that the judge was
impatient for the conclusion of the trial; and the questions put for
the defence were few and pertinent. A private memorandum found amongst
the papers of Mr. Roberts, was then put in and proved to be in his
handwriting by his executor, in which the deceased had thus expressed
himself: "Mem: to ask Mr. Chandos for some formal notification to
respect his rights, and protect them against others in case of need."
A few witnesses then proved the terms of affectionate regard on which
the prisoner had always lived with his father's steward; and then Lord
Overton was called. The judge did not appear to like his evidence
being taken; but the counsel for the defence so shaped his questions,
that they could not be rejected, and the peer, in mild and dignified
terms, very different from his former rude and haughty manner,
acknowledged that he had been the aggressor in the quarrel between
himself and Mr. Winslow; and that in the whole transaction he had
behaved like a gentleman and a man of honour. It required some skill
to hang this testimony on to the cause; but that skill was evinced,
and the evidence received. All this part of the business was got over
very rapidly; but it greatly damaged the case for the prosecution, so
much so, that the judge more than once looked to Sergeant ----, as if
he were inclined to ask whether they need proceed further.
At length "Thomas Muggeridge" was called, and, to the surprise of
Chandos, a man in a plain livery got into the witness-box, and in
answer to the questions propounded to him, deposed as follows:--"I am
servant to the Honourable and Reverend Horace Fleming, Rector of
Northferry. I know the prisoner at the bar by sight. I have once
spoken to him. I spoke to him on the night of the fifth of February
last. He called and inquired for my master about five o'clock. It
might be ten minutes after; for the sun was down. It could not be
more; for it was still quite light. I am quite sure of the man; for I
had seen him in the streets of Northferry before, and knew him to be
Mr. Tracy's head-gardener. I went in and told Mr. Fleming that Mr.
Acton wanted to speak with him; and he told me to show him in. When he
had been with my master about ten minutes in the library, Mr. Fleming
rang, and ordered me to bring lights. The prisoner was then seated on
the opposite side of the table to my master. About five minutes after
that, my master and the prisoner came out together, and walked through
the large rooms which are unfurnished. They had alight with them. My
master carried it. I ran to open the doors, and at the same time I
said to my master that the gipsey woman, Sally Stanley, wanted to
speak to him about her little boy. I had been talking with her at the
outer door. Mr. Fleming said he would see her in a few minutes; and
when I went back to tell her so, she asked me if I knew who that was
talking to my master. I said, 'Oh! quite well;' and she answered, 'No,
you don't! That is the son of the late Sir Harry Winslow.' After my
master and the prisoner had come out of the empty rooms, they went
back into the library and remained there till a quarter to six. The
clock struck the quarter as the prisoner went out. He stopped a minute
or two at the door to say something to Mr. Fleming. He said, 'It is
very unlucky, indeed; but it cannot be helped;' and then he talked a
word or two in a language I do not understand. It sounded like Latin;
but I cannot say. It was not French; for I have heard that talked. I
have not the slightest doubt that the prisoner is the man; I had seen
him, half-a-dozen times before in the streets of Northferry; and I had
every opportunity of seeing him well that night."
The cross-examination then began by the counsel for the prosecution
giving the witness a long exhortation regarding the sanctity of an
oath; he then proceeded as follows:--
Counsel.--"How long have you been in the service of the Rev. Mr.
Fleming?"
Witness.--"Six years, Sir."
Counsel.--"And how long had you been in Northferry when this event
took place?"
Witness.--"A little more than two months."
Counsel.--"Then am I to understand that Mr. Fleming was newly
appointed to the rectory at Northferry?"
Witness.--"He had been there about five months at that time; but I
remained at the vicarage at Sandbourn for more than two months after
he got Northferry."
Counsel.--"Oh! he is a pluralist, is he? Will you swear that it was
not half-past five when the prisoner called?"
Witness.--"Yes, I will; for at half-past five it is quite dark."
"Will you swear it was not twenty-five minutes past?" asked the
counsel.
Witness.--"Yes, Sir, I think I will, quite safely; for, as I told the
other gentleman, though the sun was just down, and it might be a
little grayish, yet there was plenty of light, and I could see across
the street; for I remember wondering what Higgins, the grocer, was
doing with a barrel he was twisting round before his door."
Counsel.--"Now upon your oath, Sir, what time was it really when the
prisoner came?"
Witness.--"As near as I can guess, from five to ten minutes after
five."
Counsel.--"And on what day did you say?"
Witness.--"On the fifth of February."
Counsel.--"Do you happen to recollect some circumstances that took
place at your master's house on the morning of the first of that
month?"
Witness, rubbing his head.--"Not quite rightly, Sir. What
circumstances do you mean? I don't remember what day the first was."
Counsel.--"Then how do you happen to remember so accurately all that
took place upon the fifth?"
Witness, with a laugh.--"Oh, that is easily told. We came back to
Sandbourn on the sixth, and I had a precious quantity of packing up to
do on the fifth; so I recollect all about that day, well enough."
Counsel.--"Now as to the time when the prisoner went away, are you
quite sure that it was not half-past five that struck?"
"Quite, Sir," answered the witness; "I heard the half-hour go while I
was talking with the gipsey woman, and the quarter to six just as my
master and the prisoner were walking from the library to the
hall-door, which I had got open in my hand. I counted three-quarters."
"You can't struggle against that," growled the judge; and the witness
was suffered to go down.
"The honourable and reverend Horace Fleming," was then called, and
entered the witness-box with a calm, firm step, and a look of placid
dignity. "I know the prisoner in the dock," he said, in answer to the
counsel's questions. "I never spoke with him but once, but have seen
him several times in the grounds of Mr. Tracy, of Northferry. I always
believed his real name to be Acton, till the night of the fifth of
February, when I was told by my servant that he was the son of the
late Sir Harry Winslow. I recollect all the events of that night,
perfectly. I went into my library a little before five o'clock, to
select some sermons, as I was coming over to my vicarage at Sandbourn
on the following day; and about ten minutes after, my servant informed
me that Mr. Tracy's head-gardener wanted to speak to me. He was shown
into the library by my orders, and I asked him to sit down. I had
heard from Mr. Tracy that he was a man of extraordinary information
for his station in life; and it did not therefore surprise me to find
him mingle very appositely quotations in Latin and Greek with his
conversation. At the same time, I will own, both his manner and the
request he came to make, seemed to me very strange. He was a good deal
excited; and, after apologizing in a hurried manner for taking a
liberty, he said, a friend of his--indeed, a relation--had been left,
by Sir Harry Winslow, all the books and a great number of the pictures
at Winslow Abbey; together with the large book cases, and a great deal
of other furniture. Sir William Winslow, he said, was behaving very
ill about the whole business; and his friend was anxious to have the
various articles removed from Winslow Abbey at once, but had no place
to put them in. He then went on to explain to me, that having heard I
had several large apartments unfurnished in the rectory, he thought I
might be induced to give these articles house-room for a few weeks,
till they could be otherwise disposed of. I replied, that the rooms
though large for a rectory, were low pitched and difficult of access,
so that it would be impossible to place tall bookcases in them,
whatever inclination I might have to render the gentleman he mentioned
any service. We went to look at the rooms, and he acknowledged that
what he had proposed could not be done. He stayed some little time
afterwards, conversing on various subjects; and I found him a man of
very extensive information, which decidedly induced me to believe that
his original station in life was not that which he assumed. He spoke
with considerable acerbity of Sir William Winslow; and although he
affected a certain degree of roughness of manner, probably to
harmonize with his assumed character, it was quite evident to me that
he had received the education of a gentleman. I did suspect him to be
Mr. Winslow before our conversation was at an end; so much so, indeed,
that I asked him if he knew Sir William Winslow was at Northferry
House. He replied, Yes; but he should keep out of his way. He left me
just as the clock was striking a quarter to six. At the door, I
expressed my sorrow that I could not take care of the valuable things
he seemed to consider in danger; and he replied, 'It is very
unfortunate, indeed; but it cannot be helped: Dominus providebit.'"
Counsel.--"You say his manner was a good deal excited; pray, what do
you mean by that expression?"
Witness.--"I mean, hurried, hasty, impatient, agitated. Once he fell
into a reverie, which lasted two or three minutes."
Counsel.--"Will you have the goodness to state, Mr. Fleming, with as
much precision as possible, at what hour the prisoner visited you?"
"Silence!" cried the judge, in a voice of thunder. "What is all that
noise at the door?"
"A man will force his way in, my lord;" said one of the officers, from
the other end of the court; "and there is not a bit of room."
"Take him into custody," cried the judge.
"He says, he wishes to give evidence for the prisoner, my lord,"
shouted the officer; the noise and confusion still continuing.
"He will be called if he is wanted," said the judge. "Take him into
custody, if he continues disorderly."
The volunteer witness apparently did so; for there was a momentary
scuffle at the door, and then some one was removed by the officers.
The question of the counsel was then repeated to Mr. Fleming; and he
replied, "To a minute I cannot exactly say; but it must have been
somewhere between five and a quarter past; for the clock upon my
library table struck the quarter while he was sitting with me."
Counsel.--"Is that clock very accurate?"
Witness.--"It is set every day by that of the church; which is, I
believe, a very good clock."
Counsel.--"Then it was before a quarter to five that he called at your
door? How long does it take you generally to walk from the Rectory to
Northferry House?"
Witness.--"From a quarter of an hour to twenty minutes by the fields;
it would take about half-an-hour by the road."
"And you are quite certain that the prisoner left you at a quarter to
six--not before?" said the counsel.
Witness.--"No, rather after; for the clock struck when we were in the
passage, and I spoke to him for a short time at the door."
Counsel.--"Then, are you prepared to swear that the prisoner is the
man who was with you on that night, as you have described?"
Mr. Fleming turned round his head and gazed for a moment or two at
Chandos Winslow, after which he replied, in a firm, clear voice, "I
am. He is dressed very differently on the present occasion; but I have
not the slightest doubt."
Judge.--"I will put it to the counsel for the prosecution whether they
can proceed any further after the evidence they have heard?"
"My lord, I have done," said the counsel for the prosecution. "I am
not in the least prepared to invalidate the testimony of the reverend
gentleman. His character is above reproach; and I have nothing more to
say."
"Gentlemen of the jury," said the judge, "you have heard the evidence;
but I will sum up, if you think fit."
"There is not the slightest occasion, my lord," said the foreman of
the jury. "It would be only wasting your lordship's time, for we are
all of one mind, and have been so for the last half-hour. We therefore
beg at once to return a verdict of 'Not guilty.'"
Loud acclamations followed the verdict which were with difficulty
repressed; but it was remarked that the face of the accused did not
express the slightest pleasure, and that Sir ---- leaned his arms upon
the table and covered his eyes with his hands, as if overpowered by
deep emotion, or exhausted by his exertions. He was in very bad health
at the time; but not a member of the bar had ever seen him give way
before, and there was much marvelling. The judge addressed a few words
to the late prisoner, declaring that he quitted the court with his
honour unimpaired, and without a stain upon his name; but Chandos
Winslow only bowed with a grave and stately air, and seemed in no way
to participate in the satisfaction which his acquittal had produced in
the court.