It was on the tenth of the month, in a very beautiful valley, between bare hills, which, carrying their bold heads high above the rich cloak of vegetation that clothed both sides of the dell, seemed to cool them in the calm blue sky. Just above a waterfall, the same which has been before described, two large irregular masses of stone, differing in size, but both enormous, reared themselves up as gigantic door-posts, to the entrance of a small amphitheatre of cliff, not less than two hundred feet in height. The one rock had somewhat the appearance of a chair of colossal size, the other, fancy might shape into a reading-desk; and thus, amongst the people of the neighbouring districts, the former had acquired the name of "the Pope's Throne;" while the other was called "the Puritan's Pulpit." Between them there was a narrow pass, of not more than ten feet in width, and on either side was piled up a mound of loose shingly fragments, forty or fifty feet high, with a tree or a shrub here and there, where some vegetable earth had accumulated, forming a sort of natural wall, which joined the rocky portal to the spurs of the amphitheatre of crag. At several points, it is true, a man might easily climb over the mound, either to enter or issue forth from the space within; but the only smooth way was between the two great masses of stone, where was a carpeting of soft mountain-turf, with not a blade of grass more than an inch long in anyplace, while in one appeared the evident marks of often-treading feet, in a narrow line worn nearly bare.
With his back leaning against the base of the Pope's Throne, and the sunshine and shadow of a spring day chasing each other across his brow, was seated a stout gipsey, of four or five and twenty. Half-way up the mound, on the right, reclining upon the shingle, might be perceived another, somewhat older than the former, in such a position that his eyes could rest from time to time, upon his companion below. The mound on the left hand had also its man; but he could not be seen from without the natural enclosure, for he had stationed himself just over the top of the heap, obtaining a view into the little enclosure; and there he sat from six o'clock in the morning until eight, with a number of green osier twigs beside him, and a half-finished basket between his knees, at which he worked away like on honest, industrious man.
From within the circle, came forth at times the sounds of merry voices; and at one period of the morning there curled up a quantity of light bluish smoke. Shortly after, there trudged forth from the entrance an elderly man, with a pair of bellows slung over his shoulders, and an old spoutless tin kettle in his hand. Then all seemed quiet, and the man who had been making baskets, without changing his position, changed his attitude, and suffered himself to drop quietly back upon some mossy turf which had gathered round the root of a tree, planted, Heaven knows how, amongst the stones.
About half-past eight o'clock, the figure of a tall stout man appeared, close beside the basket-maker. His step was slow and cautious; and the gipsey man did not move. He was sound asleep. The other stood and looked at him for an instant, with a look not altogether friendly: but the moment after he moved quietly on again, passed behind the tree and began to climb the ridge of the mound, towards the spur of the cliff. He took a step higher, and another, and another, with great care and precaution, often looking back at the man he had passed, often looking down into the little amphitheatre: but still he advanced steadily towards a part where there was not a space of more than ten or twelve feet between the summit of the cliff and the top of the shingly mound, with an ash-tree waving its branches under the shelter of the bank. He was within half-a-dozen paces of the top, when some of the loose stones giving way beneath him, rolled down, and startled the sleeper from his slumbers.
In an instant he was upon his feet. The next, he gazed up and gave a loud shout. The scene of confusion that followed was wild and strange. From a number of gipsey tents which had been pitched in the circle below, issued forth some twenty or thirty persons, men, women, and children, all in a state of great excitement, and all looking in the direction from which the shout had proceeded. The basket-maker sprang up after the climber of the hill, half-a-dozen young men followed from below; and one of the other watchers joined in what was evidently a pursuit.
But the fugitive had gained too much upon them; the shout warned him to quicken his pace; in an instant he was under the ash-tree; and in another, by the aid of its stout branches, he was at the top of the cliff. There he paused for but one instant, then turned and hurried on. His departing figure lessened rapidly to the eyes of those who followed him, and at length he disappeared.
Three of the pursuers climbed up by the aid of the ash-tree, as he had done; but as a fourth was mounting, he happened to turn his eyes below, and beheld the object of the chase down in the valley, and in the act of crossing the river, which rose to his arm-pits. By a bold manœuvre he had put the hounds at fault, and by the time the men were called down from above, was out of sight.
A short consultation was held amongst the tribe; and then they all quietly returned to their usual habits. The women and the children betook themselves again to their tents, the basket-maker came down and plied his trade more wakefully below; the young man who had been sitting with his back against the huge rock abandoned his post, and remained talking, within the little basin, to another of the tribe; and his fellow-watcher on the outside, lay down at the back of the encampment, and went to sleep.
About five minutes after, coming at great speed, the gipsey woman, Sally Stanley, approached the place from the lower part of the valley. There was anxiety in her look, and she gazed eagerly over the two shingly mounds, as if in search of what she did not see, and then with a step quickened almost to a run, she entered the little amphitheatre of cliff, advancing straight to the youth who had been stationed at the pass between the two rocks.
"Is he gone?" she asked, in breathless eagerness, "Is he gone?"
"Yes, Sally; he is gone," replied the young man; "but it was not my fault, for he--"
"Fault!" cried the woman, "it might be no one's fault; for what right have I to command? what need have you to obey? But cursed be he who let him go; for he has done a bad act; he has killed one who has always been kind to us; and the blood of the gipsey's friend be upon his head;" and without waiting for reply, she ran out of the circle of rock; and, with the speed of lightning, hurried down the valley. Cutting off every angle, finding paths where none appeared, and footing on places which a goat could hardly have trod, she darted on till she reached the spot where, opening out with an ever-gentle descent to the plain, the hill-valley was lost in other sweeps of the ground, and the common foot-path entered into the cultivated grounds, taking its onward course between two close hedges in the form of a lane. She looked upon the somewhat moist sand beneath her feet with eagerness, and examined it carefully for several yards. Then, murmuring to herself, "He has not passed!--he cannot have passed!" she placed herself behind the decayed trunk of an old willow, and, waiting, watched with an attentive ear.
Two minutes had not elapsed when a step was heard; and then Lockwood was seen coming along the lane at a rapid pace, with a thick newly-cut stick in his hand. The woman instantly darted forth and threw herself before him.
"Get out of my way!" he said, in a stern tone, as soon as he saw her. "I am angry, and I would not do anything unbecoming. You may have done mischief enough already. Do not do more by making me forget myself."
But she persevered in her attempts to stop him.
"I am a woman, and alone;" she answered, "you would not do anything unmanly, I am sure. But hear me, Lockwood," she continued, more vehemently; "hear me, and I will tell you what you are going to do. You wish to save him, and you are going to ruin him. If you set your foot in that court, he is lost. Nay, hear me! hear me!" she repeated, as he strove to push his way past her; "you must, you shall--for your own sake--for his sake--for my sake. I will beseech you--I will kneel to you, to hear me but a few words;" and casting herself down before him, she clasped his knees with her arms.
"I will not hear you," he answered, bitterly; "every moment is precious. You have detained me shamefully two days, and there is nothing to be told me that I could not tell you. I know all, girl--I know you, Susan Grey--I know your motives--I know that you are fool enough still to love him who ruined, betrayed, abandoned you--who left you to misery, starvation, and death, for aught he knew; and I know that to save him from the punishment of his crimes, you would sacrifice one who was kind and good to you, when there was none other to befriend you. Let me go, girl! for I will pass!" and, forcing himself from her grasp, he walked hastily onward towards S----.
"Oh God! Oh God!" cried the woman, "he will destroy him he seeks to save!"
This took place, let the reader remember, on the tenth of the month; the second day of the trial of Chandos Winslow; and to that trial and the court in which it was taking place, we must now return.
In many cases the inhabitants of an assize town are very little affected by what is taking place in their courts. They see lawyers flock in and juries assemble, witnesses moving about in troops, and a rich crop of blue bags growing up. But with the causes or the prisoners, they very little trouble their heads. The host of the inn rubs his hands and rejoices: a heavy calendar to him is a God-send. His waiters, probably increased in number, bustle about to feed those classes which are proverbially ravenous; and the chamber-maids are in great request. The pastrycook becomes a person of importance; the cookshop has its share of business, and red tape and parchment rise in value; while the ladies of the place think a good deal of the young barristers, and very little of those whose causes brought them to the town.
But there are occasions, on the contrary, when, either from the intrinsic interest of the case, or from adventitious circumstances connected with it, the people even of the town in which the trial takes place become almost universally excited by what is occurring in the courts; and upon every turn of the trial as it proceeds hangs a world of emotions in the bosoms of men only linked to the transaction by the tie of sympathy.
Such was the case in regard to the trial of Chandos Winslow. Not a drawing-room, not a tea-table, not a chamber in a tavern, not even a coffee-room did not hear discussed during the whole evening of the ninth the various events which had taken place in the court-house during the day, while calculations were formed, and even bets made, on the probable result of the trial. The prisoner had become quite a hero of romance to all the youth and much of the age of the place. He was so young, so handsome, so noble-looking, that the women of S---- of course felt interest in his favour; and the men declared he bore it stoutly, struck by his firm and calm demeanour, and his resolute and gallant bearing. Nevertheless, at the close of the case for the prosecution, a very general impression prevailed that he would be found guilty. So many startling facts had been proved against him: his absence from his house precisely at the time of the murder; the exact correspondence of his shoes with the footsteps to and from the spot where the crime was committed; the bloody hands and coat; and the terribly agitated demeanour which had been witnessed by the boy and the old woman on his return, would almost have been enough for conviction, even without the terrible and seemingly conclusive fact, that the fatal deed had evidently been committed with the very hoe which he had carried out in his hand.
Under such circumstances, the rush at the doors of the court-house on the morning of the tenth was tremendous, and it was as much as the officers on duty could do, aided by a strong body of police, to prevent the multitude from crushing each other to death in the passages and in the very court itself. Several of the magnates of the county were accommodated with seats on the bench to hear the defence; and the voice of the judge himself was raised to its very highest tones to suppress the disorder that occurred when the prisoner appeared in the dock.
Wearing anxiety will have its effect on every frame, and Chandos Winslow looked paler and thinner than on the first day of the trial; but still the magnificent head, the fine person, the tranquil and undaunted bearing, and the firm, strong step had their effect upon those who beheld them, and the impression was that though the jury might and would say "Guilty," the man was innocent.
Sir ---- every one remarked, was exceedingly pale; and before he rose he turned over the papers under his hand several times, with a look of nervous anxiety; but the moment he was upon his feet, that look passed away; he raised his head high; he cast back his shoulders as if for full breath, and, fixing his fine and speaking eyes upon the jury, began,
"My lord and gentlemen of the jury,--The learned sergeant who has conducted the prosecution assured you that to do so was the most painful task of his life. I doubt it not in the least; for it must be a terrible task indeed to become the public accuser of such a man as the prisoner, with even a doubt upon the mind of his guilt: and how many doubts must have existed in this case? If such were the feelings of my learned friend, judge, gentlemen of the jury, what must be mine, when, in rising to defend the prisoner at the bar, I know that upon my feeble efforts depends not only the life of an innocent man, not only the life of one who is an ornament to the society in which he moves, but the life and honour of my dearest friend! With what anxieties must I be oppressed; how terrible must be the responsibility when the slightest failure of my powers, the least oversight on my part, any weakness, any indiscretion, may condemn to death one whom I love as a brother--one whom I know to be innocent, as I have trust in God! I am no paid advocate, retained to defend a bad cause; I am not a counsel doing merely his professional duties: but I am a friend standing forth in defence of a friend; an honest man raising his voice to save an innocent one. Terrible are the difficulties which all these cases present: more than ordinary are the difficulties in the present case; and all these are aggravated in an enormous degree by the very feelings of friendship which exist between myself and the prisoner, by the doubts and fears of myself, which make me tremble at my own incompetence, by the zeal which perplexes, by the eagerness which confounds. The burden would be too great, gentlemen of the jury; it would overwhelm me; but happily there are circumstances which lighten the load. I see upon the bench one of the most learned and clear-sighted of those judges who are an honour to the nation to which they belong: I see in that box a body of Englishmen well calculated by judgment and experience to distinguish between truth and falsehood; between the factitious glozing of an artificial oratory, and the simple eloquence of right and conviction: and I hold under my hand the means of establishing, beyond all doubt, the innocence of my friend, if friendship do not deprive me of reason, if enthusiasm do not paralyse my tongue.
"I will now, however, do my best to grapple with the case as presented to you by my learned friend; and, doing him full justice for his high eloquence, believing most sincerely that he has stated nothing but what he was instructed was true, I will still venture to say, that a more terrible misrepresentation was never made to an English jury. Now, in the very first instance my learned friend asserted that the prisoner at the bar is of a sharp and vindictive disposition; and he said that he should be able to show that such was the case. Gentlemen, I will ask you, has he proved that fact? I will ask you if he has made any attempt to prove it? I will ask you if his own witnesses have not proved the exact reverse; if they have not shown that the prisoner is of a kind and gentle disposition, winning the love and esteem of all around, high and low, rich and poor? and, whether we see him teaching the uneducated child, saving the drowning boy, or tending him in his after sickness, I will ask, if all thathasbeen proved does not excite admiration, and sympathy, and respect? Cast from your minds, then, such unjustified and vague expressions: look upon his general character as it is shown by the very evidence for the prosecution, tender rather than sharp, benevolent instead of vindictive. But the insinuation, gentlemen of the jury, has been made, though not supported; and it forces me to establish the contrary by proofs. Something was said too, gentlemen, of a duel between the prisoner and Viscount Overton, and a connexion must have instantly established itself in the minds of the jury, between that duel and the sharp and vindictive character ascribed to the prisoner. But, gentlemen, I will place that honourable nobleman in the witness-box, to speak to the character of the prisoner. He shall himself tell you what he thinks of the circumstances which produced the duel; and you shall judge from facts, not from insinuations. All this shall be triumphantly swept away, and I will not leave a vestige of such charges against my friend. I will call the old servants of his father's house, I will call the tenants, the parishioners, the neighbours. Their evidence need not be long, but it will be conclusive to show that a more honourable, upright, generous, kind-hearted man never existed; full of noble enthusiasms, gentle in habits, benevolent in disposition, incapable of a base or a cruel action.
"So much, gentlemen of the jury, for the first part of the charge: for the general and vague insinuation, made for the purpose of preparing your minds to regard the prisoner as a man of blood. But it seemed necessary to my learned friend; and most necessary indeed it was to his case, to show some apparent motive for the crime of which the prisoner is accused; and a letter has been read in evidence to prove that there was some dispute between the prisoner and the murdered man. That letter shall be fully explained before I have done; and you shall see how ridiculously petty is the motive assigned for so great an offence. But besides that letter, allusion was made to former disputes between the unfortunate Mr. Roberts and the prisoner, which, though not proved, may have had some influence upon your minds. I will show that no such disputes ever existed; that the two were on the best and most kindly terms, that they had been so through life; and that those causes of disgust which had induced the prisoner to quit his brother's mansion were identical with the causes which induced Mr. Roberts to give notice to Sir William Winslow that he was about to leave his employment. In short, I will prove that Mr. Winslow and the man he is accused of murdering, were acting on the most friendly terms together; and that the letter which is supposed to prove that a dispute existed, was written in cold terms merely as an authority to Mr. Roberts for disregarding any orders he might have received from his employer to meddle with things in which that employer had no right. It was, in short, a formal notice to him to respect the rights of the prisoner, without any regard to the illegal directions of a third party. I shall be able to prove that Mr. Roberts possessed the full confidence of Mr. Chandos Winslow; that he was acting with due regard for Mr. Winslow's interests, and that he had actually applied or intended to apply to that gentleman for an authority or warning to respect, in his capacity of agent for Sir William Winslow, the rights of him, the prisoner at the bar. Thus the pretence of motive furnished by the letter which he, Mr. Roberts, had himself desired, falls entirely to the ground, and leaves the accusation totally without foundation, except such as a very doubtful train of circumstantial evidence can afford. Mr. Roberts, in fact, was the only confidant of the prisoner at the bar, the only person to whom he confided his address, when disgust at some injuries he imagined he had received, and a desire to mingle as an equal with classes in which he had long taken a deep interest as a superior, led him to quit his high position in society, and accept the humble station of gardener to Mr. Arthur Tracy, of Northferry. Was this, gentlemen of the jury, like long disputes and acrimonious bickerings, ending in malevolence and murder? Is that the man to entertain such passions?--to commit such an act?
"But I will make no appeal to your feelings; I will address myself to your judgment only. I will break through this chain of circumstantial evidence; I will show that it cannot affect the prisoner, that it is not applicable to him. I will proceed logically with my inferences; though it may be somewhat out of the usual course. I will first convince you that the prisoner was not a man likely to commit such a crime, by the testimony of many witnesses. I will next prove that there was no earthly motive for his committing that crime; but every motive for his not doing so: and, in the end, I will establish beyond all question that it was impossible that he could have committed it. Before I proceed to call my witnesses, however, it may be necessary to examine closely the evidence already adduced, in order that we may separate the facts clearly and distinctly proved from an immense mass of irrelevant matter. In so doing, I shall not attempt to explain every fact and every circumstance; I shall not seek to prove why the prisoner did this, or why he did that. To do so would occupy unnecessarily the time and patience of the court. For, surely, if I establish beyond all doubt, those three great points I have named--That the prisoner was not a man likely by character, disposition, and previous conduct, to commit such a crime; secondly, that he had no possible motive for committing it; but the reverse: and thirdly, that if the testimony already given be not altogether false, he could not have committed it, that will be quite sufficient for the satisfaction of the court.
"The evidence, gentlemen of the jury, divides itself into two principal parts: that which relates to the death of Mr. Roberts: and that by which it is attempted to connect his death with some act of the prisoner. The simple facts regarding the death of the unhappy victim of some other man's bad passions are clearly proved in evidence, by the various witnesses you have heard in their examination and cross-examination. Their testimony has not been shaken in the least; and I do not wish to shake it. In considering this evidence it is of the utmost importance to the establishment of truth, that everything should be precise; and I must therefore impress the facts upon your minds that you may take them in conjunction with the evidence I shall myself offer, and from the whole draw the only deduction which can logically be drawn: that it is impossible the prisoner could have committed the act with which he is charged. You have heard the testimony of James Wilson, the footman of Mr. Tracy, the last person that we know of who spoke with Mr. Roberts, before the murder; with the exception of Jones, the valet. This man stated at first, that Mr. Roberts called about five o'clock; but afterwards admitted, on cross-examination, that it was certainly ten minutes past five. It might have been more, but I am contented with that. The witness Jones corroborated the testimony of James Wilson, and fixed the time of Mr. Roberts's call at ten minutes or a quarter after five. These statements are not shaken. It was at least ten minutes past five when the murdered man was at Mr. Tracy's house. He stayed apparently a very short time there; but we find from Wilson's evidence in answer to the court, that it would take ten minutes more to go from the house to the spot where the murder was committed. We will not assume that any time was lost on the road. It was, therefore, at least twenty minutes after five before the criminal act was perpetrated. My learned friend has attempted to fix the period of the murder. I will try to do the same thing; but somewhat more accurately. The little boy, Timothy Stanley, in evidence which, from its perspicuity, simplicity, and truthful straightforwardness, you must all recollect, has shown that, at half-past five o'clock the murder had been actually committed. I take the time by Northferry clock to be the real time--at least it must be assumed to be so for our purposes; and I may as well inform the jury, here, that I last night sent off an express to Northferry to ascertain what difference, if any, exists between the clock at Mr. Tracy's house and that of Northferry church. By this man I shall prove that there is but one minute difference between the church clock and that in the hall so often alluded to, although that clock has not been set for one week, owing to Mr. Tracy's unfortunate absence. But I shall be in a condition to prove that it was set every day at noon precisely, during that gentleman's residence at Northferry, and set by the church clock. Thus it appears by testimony, which has not at all been shaken, that the murder of Mr. Roberts must have taken place between twenty minutes and half-an-hour after five; that at ten minutes past five he was in Mr. Tracy's hall, and at half-past five was seen murdered at the end of the grounds, the distance between the two places being, I see by the plan, forty yards less than half-a-mile in a direct line, and rather more than three quarters of a mile by the walks. The body was not found till past ten o'clock, or more than four hours and a half after it was seen by the boy. At this time it was quite cold and stiff. The surgeon has proved that death was occasioned by an incised wound on the head, penetrating the brain, of a kind which might be given by a Dutch hoe, and a Dutch hoe was found on the ground near the body, with blood and gray hair upon it. There can be little doubt that this hoe was the instrument by which the murderer perpetrated his crime. That it was so, struck the prisoner at once, as you have heard; and moreover that he acknowledged the hoe to be his, and said that he had left it leaning against one of the pillars of the little temple over the fish-pond. These are the admitted facts concerning the murder, of which there can be no doubt.
"We will now turn to the circumstantial evidence, by which it is attempted to connect the prisoner with the crime. Now my learned friend has repeated to you an old axiom of law that circumstantial evidence is often more convincing than direct evidence; and he has reasoned ably upon that question. Nevertheless, the numerous instances of awful injustice which have been committed in consequence of giving too much weight to circumstantial evidence, has shaken the confidence of many of the wisest and most learned men in the reasoning by which the axiom is supported, and in the justice of the axiom itself. I need not call to your mind a sad instance which occurred not many years ago in France, where an amiable and excellent man, mayor of a great city, after submitting to the knife of the guillotine, was proved to be perfectly innocent; and very many such instances are on record; but I do believe that after the trial which now occupies this court has come to its conclusion, all thinking men will regard circumstantial evidence with much greater doubt than they have hitherto done, and juries will pause ere they take upon themselves the frightful responsibility of sending a fellow-creature to death while the shadow of a doubt remains. I say that the result of this trial will show that too great a dependence on circumstantial evidence may often betray wise and good men into acts which must burden their consciences for all their remaining days. I wish to produce this effect. I wish to put in the very strongest point of view, not only for the present occasion, but for future instruction, the very fallible nature of circumstantial evidence; and therefore in this instance I shall deal with it in a peculiar manner. I will not attempt to struggle with it; I will not try to shake it; I will not even descend to explain it. It shall stand in full force, bearing against my client to the very last; but then I will prove that it is utterly worthless, that it does not affect him even in the slightest degree; that there is not even a possibility of his having committed the crime. I will explain not one of all the circumstances that tell against him; and yet, without quitting that box, you shall give a verdict of acquittal.
"Nevertheless, it will be necessary to examine the evidence, in order to extract from it those facts which have a real bearing on the case, and which fall into the line of defence. The rest I shall leave intact, without attempting to weaken it in the slightest degree. The evidence by which it is attempted to connect the prisoner with the crime, divides itself into three heads. One portion is that which shows that he was proceeding towards the spot where the dead body was found, nearly at the time when the murder must have been committed. The second refers to the traces of the deed left by the murderer, or supposed to have been left by him--the hoe with which the deed was done, the steps to and from the haw-haw and in the ditch. The third, relates to the demeanour and personal appearance of the prisoner after the murder had been committed. Under the first head we find from the witness, William Sandes, that he met the prisoner as he was going home from his work. The prisoner was going down towards the scene of the tragedy. The witness at first asserted, that it was about five o'clock when he met the prisoner, very naturally not wishing to make it appear that he had quitted his work before the proper time. But in cross-examination we got out of him, that he had on previous occasions left the garden earlier than he ought to have done, and had been reprimanded by the prisoner. He also admitted that it was broad daylight, and might be a quarter before five. Thus the time at which Sandes met the prisoner was rather more than half-an-hour before the murder could have been committed. I beg you to mark this fact well, gentlemen of the jury, for it is important. Then we have the evidence of the old woman, Humphries. She shows that he came into his cottage about half-past four, on the day of the murder, and went out again exactly at five, by a clock which is proved to have been on that night, from ten minutes to a quarter-of-an-hour too fast, thus corroborating the statement on cross-examination of the witness, Sandes. You will recollect, gentlemen of the jury, that on the fifth of February the sun sets before five o'clock. The witness, Sandes, says, that when he met the prisoner he does not think the sun was down; that it was broad daylight. The good woman, Humphries, declares that the prisoner went to take a look round the grounds before it was dark, all showing that it must have been considerably before five o'clock when he went out. Now, the murder could not have been committed before twenty minutes past five. This is the evidence tending to show that the prisoner was in the grounds and went towards the fatal spot some time before the crime was perpetrated. He never denies, or has denied, that such was the case. He admitted it in conversation with Mr. Tracy. He said he had been speaking to Miss Tracy within a very few yards of the place where the body was found. And here I must remark upon two circumstances well worthy of your consideration. First: that the counsel for the prosecution have not thought fit to call Miss Tracy; but threw upon us the burden of so doing. Now, Acton, the gardener, might have no hesitation in calling that young lady; but, Mr. Chandos Winslow may have many reasons for not subjecting one towards whom he entertains high respect--may I not say affection?--to the torturing cross-examination of an adverse counsel. Suffice it, gentlemen of the jury, that he refuses to call her; and, respecting his motives, I have ventured to argue, but not to insist.--She should have been called for the prosecution. The other important fact to which I must call your particular attention is this, that although it is proved the prisoner was in the grounds a short time before the murder, we have it in evidence that some one else was in the grounds exactly at the time when the murder must have taken place. Michael Burwash, has sworn, that some ten minutes or quarter-of-an-hour after Mr. Roberts went to the place where he met his death, he saw some person enter the house from that very direction, walking in a quick and hurried manner; that he passed through the green-house instead of taking the usual entrance, as if he desired to avoid observation. Who was it? The witness says it was not Mr. Tracy, or General Tracy; and certainly not the prisoner at the bar. I do not wish to throw any imputations; but the fact is proved, that there was some man, not the prisoner, in the grounds at the very time the murder must have been committed.
"Now I come to the second head of evidence--the traces of the murderer's progress. The hoe has been admitted to be the prisoner's by himself in this court. More may be very safely admitted; namely, that he carried it out with him in his hand, that he had it out with him when he met the witness, Sandes, and that he rested it against one of the pillars while he spoke with Miss Tracy, leaving it there when he went away. What more natural than to suppose, that the murderer, seeing it there, snatched it up to effect his criminal design? The footmarks in the grass, I not only deny to have been the prisoner's, but I must say, that it is very nearly proved they were not. It is sworn that there were but two lines, one coming and one going, between the haw-haw and the spot; and it is admitted by the witness Taylor, that one of the men who accompanied Mr. Tracy at night went from the place where the body was found to the haw-haw and back. It is also shown that the ground was so soft as to receive the impression of any foot that trod upon it. These steps then could not have been the prisoner's; but servants, and constable, and all, seem to have made up their mind that the prisoner was the murderer, and the shoes of no other person were examined. Now, gentlemen of the jury, I will touch upon the third head of evidence--the prisoner's appearance and demeanour after the murder. He returned to his cottage, it is shown, somewhat after six o'clock, and I shall not in the slightest degree attempt, as I told you I would not, to lessen the weight of this evidence, nor even to explain the facts. I am precluded by his most positive injunctions from doing so. I admit then that he returned in a state of very considerable agitation; that he was annoyed, harassed, vexed; that there was blood upon his hands and upon his coat, and I will give no explanation of these facts. He forbids me to give the true one; and I will give no other. Were there no means of establishing his innocence, this refusal of explanation might create a reasonable doubt in your minds; but that doubt would be far from justifying you in a verdict of guilty. Any one can conceive a thousand circumstances which might have produced that agitation, and which might have covered his hands and stained his coat with blood, but which the most honourable motives would prevent him from explaining. The proof must always lie with the other side; the prosecutor is bound to leave no reasonable doubt in your minds. It is not enough to produce a doubt of the prisoner's innocence; and therefore it is I say that though if no means existed of proving the prisoner to be not guilty, this refusal of explanation might produce a suspicion that he was guilty, yet that suspicion would be by no means sufficient to justify a verdict against him.
"But, gentlemen of the jury, I will not be satisfied with this. My friend must quit that dock without a stain upon his character. It must be in his case as in that of the famous Lord Cowper, who was tried in his youth for murder upon evidence much stronger than any which has been adduced on this occasion, who triumphed over a false accusation, left the court with honour unsullied, and rose to the very highest rank in his profession, holding the first official station in the realm beneath the crown. Nothing will content me but to see my friend so acquitted; and therefore I will not plead the benefit of a doubt. Nothing will content him but such an acquittal; and therefore he forbids me to urge upon the court a fatal flaw which I have discovered in the indictment. But I can ensure that acquittal; and before I have done, I will prove, upon evidence unimpeachable, clear, distinct, and positive, that the prisoner was far distant from the spot at the moment the crime was committed; that it was, in short, physically impossible that he could have had any share in it. I will prove it, by persons above all suspicion of collusion, without motive, without object of favouring or assisting him. I will show, I say, not alone that the man round whom such a long chain of circumstantial evidence has been entwined, did not commit the crime with which he is charged; but that he could not have committed it; and I will call upon you for such an immediate and unhesitating verdict as will leave his name and honour clear of every imputation. Gentlemen of the jury, there is a joyful task before you, after you have performed a long and arduous one. Painful, yet mingled with satisfaction, have been the duties which I have taken upon myself. At first the awful responsibility overwhelmed me; the anxiety for my client, the apprehension for my friend, the sense of my own incompetence, the tremendous stake in peril, seemed too much for my mind; but every step as I have proceeded has strengthened my confidence and reinvigorated my resolution. Knowing my friend's innocence, seeing the proofs of it accumulate, perceiving that the case for the prosecution crumbled away under cross-examination, and assured that without a word for the defence there was in reality no case to go to a jury, I felt that my own weakness could not much affect the result, and that his safely depended not on such feeble powers as mine. To God and to his country he has appealed; to God and to his country I leave his fate, certain that the one will defend, where my voice fails, the other do him justice, whatever powers be arrayed against him."
The tears rose in his eyes; his voice trembled and almost failed at the last words; but those last words were as distinctly heard in the court as the most powerful tones of the adverse counsel; for there was a dead silence, unbroken by a breath.
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.