When the case for the Crown had come to an end Mr. England in an impressive speech 'put it to his Honour whether it was really necessary to waste the time of the court by calling witnesses for the defence. The other prisoner--the only accused, properly so called--had already pleaded guilty. Was it not patent to his Honour, to the jury, to every one in court, that this Edward Lawless--he desired to speak of him with no undue harshness--was the real and only criminal. His client had no doubt been highly imprudent in keeping company with such dangerous associates as the Lawlesses, male and female, had proved themselves to be, but he would ask his Honour, as a man of the world, Who amongst us, in the heedless days of youth--careless of consequences, and unsuspicious of guile--had not done likewise? Were people to be treated as criminals--branded as felons--merely for socially encountering persons afterwards guilty of felony? What a Star Chamber business would this be in a British Colony!--where, thank God, every man was under the aegis of the common law of the realm. His client, unfortunate in that degree, had merely been a spectator, a looker-on. As to the H. J. horse, he was as ignorant of all guilty knowledge as himself or his Honour; was it not the wildest flight of absurdity to imagine for one moment that a man with twenty thousand pounds to his credit in the bank would be likely to receive--knowing him to be stolen--a fifty-pound horse? The thing was absurd--so absurd that he would once more put it to his Honour whether the farce should not be ended by at once asking the jury for their verdict, which they would, he was confident, give without leaving the box.'
The judge 'felt the force of much that had been so ably presented in favour of his client, but, with every wish to afford the prisoner facilities for his defence, he was compelled to decline the application of counsel. He would prefer to hear the witnesses for the defence before summing up and addressing the jury.'
Mr. England bit his lip, but he 'bowed, of course, to his Honour's ruling,' and proceeded to call his witnesses.
Then commenced the deeper interest of the performance. Every spectator appeared to listen with concentrated attention. Not a syllable escaped attention. Not a sound arose from the dense and closely packed crowd.
All the former witnesses were called. Each in his turn gave evidence which appeared to be so conclusively in favour of the prisoner that every one in court thought with Mr. England that the jury would never leave the box. Mr. Stirling, Jack Polwarth, Mrs. Delf, all testified to the effect that Lance Trevanion had quitted Growlers' on that particular day, Friday, the 20th September, for Balooka. When asked whether it was possible for the prisoner, Trevanion, to have been seen at Balooka shortly before the date named, they, with one accord, declared it to be impossible. He had been seen every day by one or other for months before. As to his being a couple of hundred miles off, it was absolutely false and incredible. In addition to the witnesses heard previously, two miners named Dickson and Judd were called, who swore positively that they had seen the prisoner, Trevanion, on Friday, 20th September, near 'Growlers',' evidently commencing a journey to the eastward. He had a valise strapped before his saddle, and was going along the mountain road.
'Would it lead to Balooka?'
'Yes; that was the way to Balooka. One of them had been there, and a rough shop it was. They were quite positive as to his identity.'
'He was a noticeable chap, and the horse he rode wasn't a commoner either. Any man with eyes in his head would know the pair of 'em anywhere, let alone chaps as had worked the next claim but one to him and Jack Polwarth.'
Asked whether they were quite certain that they had met the prisoner on the day stated by them, or whether they thought it might have been the day before.
'It was that very Saturday morning, and no other. They were as sure of it as of their own lives. If men couldn't be sure of that they could not be sure of anything.'
Of course they knew Lance Trevanion well?
'Yes, very well, by sight. Not that they had often spoken to him. He was a gentleman, a big man in his own country, they heard tell. He kept himself a deal to himself, except in regard to the Lawless family, and he would have done well to have let them alone too.'
Tessie Lawless, when called upon, moved towards the witness-box with a much less assumed step than her cousin. She also turned her head towards the dock. Those who watched her saw her face soften and change like that of a woman who suddenly beholds a suffering child. As she scanned the pallid and drawn features of Lance Trevanion, upon which anger and despair, consuming anxiety and darkling doubt had written their characters indelibly, it seemed as though she must force her way to him and weep out her heart in bitter grief that he should be in such ignoble toils.
Then she braced herself for the effort and stood before the judge. The statement which she made was almost identical with that on a former occasion. A very good impression on the jury was evidently made by her candour and earnestness.
As she answered firmly yet modestly each question put to her by Mr.
England, the judge was observed to listen with close attention and the jury to be unusually interested. Mr. England, scanning their faces with practised readiness, saw in imagination their short retirement and a unanimous verdict of 'not guilty' proceeding from the lips of the foreman. Then, as he approached the critical period of the question which had been so unlucky in its effects during the preliminary examination, he felt as nearly nervous as a man of his proverbial courage and varied experience could be. He was more than half disposed to omit the question altogether; how he hated himself for having been fool enough to put it in the first instance.
'I don't think I need trouble the witness with any other questions, your Honour,' he said tentatively; but here Dayrell rose and evidently prepared himself to interpose. With lightning quickness Mr. England decided to put the question in his own form and fashion, rather than leave it to the enemy.
'One minute, Miss Esther,' he said, as if the idea had just occurred to him. 'I think you said that you were uncertain, or could not quite recall, whether you had ever seen the accused Lance Trevanion before you left the Eumeralla to come to Ballarat?'
This he said with a smilingly suggestive air which would have given the cue to an ordinary witness less imbued with a sense of unfaltering right than Tessie Lawless. But as the girl's clear brown eyes searched his face with a troubled expression, he comprehended that there was no hope of evasion, that he had got hold of one of those impracticable witnesses who really do speak 'the whole truth, and nothing but the truth,' to the consternation of lawyers and the disaster of defendants.
'I said that I _had_ seen him before, at the Eumeralla,' she said simply, 'I can't swear anything else. I _did_ see him, and it was a bad day for him--and--and for me too,' she added.
'Now think again, Miss Esther. Reflect that your answer to my question is perhaps more important than any one you ever made in your life. How can you account for Trevanion being so far from Ballarat? What business had he there, and why should he leave Growlers' Gully, to which he came from the ship, as I can prove?'
The girl looked again at the dock and those who stood therein--at Ned Lawless, who lounged good-natured as ever, and smiling to all appearance; at Lance, who stood erect, darkly frowning and with a fixed stern expression, as of one who should never smile more.
'It will break my heart,' she said, 'but I must speak the truth while I stand here. I _did_ see him on the Eumeralla, before we left home for Ballarat, one day with Ned.'
'I must ask again whether there is any possibility of your being mistaken in the identity of the accused?' persisted Mr. England. 'You have heard doubtless of men being so wonderfully alike that strangers could not in many cases discover the difference?'
'Just stand down for an instant. With his Honour's permission I will recall the witness John Polwarth.'
'You are recalled upon your former oath, Mr. Polwarth. I wish to ask you whether you ever saw an individual most strangely resembling Trevanion?
If so, when and where?'
'Yes--sartain,' replied John, looking pityingly upon Lance as he stood in the cage, as Jack afterwards designated it. 'There was a chap as called hisself Trevenna--Lawrence Trevenna--as coomed oot in ship with us, and was as like the master here as he'd been his twin.'
'Was the likeness really astonishing?'
''Stonishin'! I believe you. It was the most surprisin' likeness ever I seed, and so the missus'll tell you besides.'
'Well, what became of him?'
'Nivir heerd tale or tidings of him since he left the ship. Wasn't sorry for that either. He was that bad-tempered and fond of card-playing that I couldn't bear to have him in the same mess with me and the missus.'
Mrs. Polwarth, also recalled, gave similar evidence with considerable spirit, and hoped that some of the witnesses heard to-day might have some good cause to know the individual as she meant. 'He was death on playing cards, and that fond of money that he wouldn't leave off when he lost. He was the worst-tempered man in the ship.'
'That will do, Mrs. Polwarth. You may go and sit in the court with your husband. Now, Miss Lawless, you have heard what these two most respectable witnesses have sworn to. Are you still certain and positive in your own mind that you saw Lance Trevanion _himself_ on the flats of the Eumeralla, or did not rather fall in with Trevenna, who seems born for the special purpose of complicating this most involved and unhappy case?'
A look of relief and sudden satisfaction passed over the girl's face as she answered, 'I do now feel in doubt. Oh! I will not swear positively.
I never dreamed that there was any one so like Mr. Trevanion.'
'Then,' pursued Mr. England, 'having now become aware that there is an individual so strikingly like Lance Trevanion that a stranger could hardly know them apart, are you desirous to correct your former evidence, given in ignorance of the fact, by now declaring on your oath that you are unable to identify the man you saw with the prisoner, Trevanion?'
The light came back to the witness's eyes, and even a faint colour rose to her cheeks as she answered firmly, almost joyfully, 'I believe in my heart that it must have been Trevenna that I saw. I cannot swear now that I saw Mr. Trevanion.'
A faint murmur of approval arose in the court, which was promptly suppressed as the Crown Prosecutor rose.
'I do not wish, your Honour, in any way to impugn this witness's testimony. She has every desire, I feel convinced, to speak the truth.
But I wish to ask her whether of _her own knowledge_ she is aware that such a person as Lawrence Trevenna exists?'
'I have just heard two people swear to it,' the girl replied hastily, as if fearful that this welcome solution of a dreadful doubt should be taken from her. 'What more do I need?'
'Just so. But you must perceive that in the event--improbable, I admit, but possible--that these witnesses were mistaken or misleading, you have no knowledge of your own to fall back upon?'
'If I could only see them both together,' pleaded poor Tessie ruefully, 'I am sure I could pick out the one I saw at Eumeralla.'
'I am afraid there is no chance of that,' said the barrister, 'unless Sergeant Dayrell can produce him.'
'Perhaps it would be convenient,' answered Dayrell, in the most coldly incredulous tones, 'if I could produce a counterpart of the prisoner, Lawless, at the same time. I do not wish to distress the last witness, but one would be quite as easy as the other.'
The girl faced round, as his clear but slightly raised voice sounded through the court, and looked full at him, with scorn and indignation in every line of her countenance.
'I thought better of you, Francis Dayrell,' she said. 'You are acting a falsehood, and you know it.'
Dayrell's lips moved slightly, but no sound came from them for a moment.
He bowed with an affectation of extreme courtesy before addressing the Bench.
'Your Honour, I claim protection against such an imputation. But I make great allowance for the witness, whose relation to the prisoners excuses much.'
His Honour was understood to reprove the witness mildly but impressively, and to express a hope that she would abstain from all aggressive remarks in future.
Tessie's evidence being concluded, the Crown Prosecutor proceeded to address the jury, pointing out what, in his opinion, were the salient points of the case as brought out in evidence.