Nevermore

CHAPTER XII

Bail having been refused, presumably at the instance of the police – who, in cases where there is probability of the prisoner levanting or of arrangements being made to defeat the ends of justice, are entitled to object – there remained no course but that Lance Trevanion should be re-committed to gaol. Ned Lawless was also detained for safe keeping, the same reasons operating even with greater force in his case. This was the third time that Lance had been brought forth to stand before a gaping crowd – the third time that he had been transferred to the grim precincts of a prison and heard the massive iron gates clang behind him.

'I begin to feel,' he said bitterly to Stirling, 'almost like an habitual criminal. If there is a God that judgeth the earth, as they used to tell us in old days, why am I permitted to be thus degraded, falsely accused, and unjustly imprisoned?'

It was in this period of trial and sore need that Lance discovered the nature of friendship. Genial acquaintances and friendly-seeming personages he had encountered by the hundred. These were now for the most part too busy or indifferent to visit him in his affliction. Charles Stirling, however, in spite of his onerous and responsible duties, lost no opportunity of aid or service. Sometimes he rode half the night in order to get back to his work in proper time after visiting the captive and comforting him as best he could. He petitioned the Governor-in-Council, drafting and procuring signatures to a memorial setting forth Lance's hard case and praying that he might be released on bail. He addressed members of the Bench, and essayed to persuade them to act independently, offering to find bail to any amount and lodge the money. Hastings and Jack Polwarth canvassed their fellow-miners. The newspaper press was invoked. But all in vain. The time was in-opportune. So many horses had been stolen that a strong popular prejudice had arisen; justice demanded a victim. A reactionary sentiment commenced to prevail. It was openly stated that because Trevanion, of Number Six, was a 'swell' and had dropped into a lucky claim, that was no reason why he should be let off more than a poor man.

Wild and unsettled were the times too – those years early in 'the fifties.' Martial law was thought necessary for the holding in check of an army of untamed spirits. A close discriminating adherence to legal form could hardly be attained. The upshot of it all was that, to the disgust and despair of Hastings and Jack Polwarth, who had hoped against hope, all their efforts were vain, and Lance was compelled to resign himself as best he might to his enforced and protracted duresse.

Before leaving for Melbourne Mr. England had indeed almost guaranteed that he only needed to be placed on his trial to be acquitted, asserting that no jury in the colony could possibly find him guilty upon the evidence brought before the Bench; that a committal was very different from a conviction; that some magistrates made a point of committing for trial all prisoners brought before them so as to escape responsibility; that Mr. M'Alpine had a habit of acting in that way; that he (John George England) would take the shortest odds that the jury acquitted Lance without leaving the box.

How the weeks dragged on! Autumn was fast changing into winter when the Quarter Sessions were held. Lance had expected to have been in Melbourne about the time. Only to think of it! And had he not paltered with his duty and his solemn promise might he not have been in England now, seeing the yearly miracle of the spring transformation in that favoured clime and hearing the surges beat against the frowning headlands of Tintagel? Madness was in his thoughts. Why did he not dash his brains out against his prison walls and so end the hideous burlesque upon truth and justice, honour and common honesty even? Why had he not courage to do so? No – it would become his father's son to die in ways and fashions many and varied; but within gaol walls! No! a thousand times, no! That would be a doom impossible for a Trevanion of Wychwood.

From time to time he had gleams of hope – this miserable captive so unused to fetter and thrall. It could not be. It should not be. The eternal justice of heaven would be falsified were this wrong to befall him. The words of prayer that he had lisped in childhood – the Bible lessons to so many of which he had hearkened in the old Norman Church at Wychwood – what would all these be but hollow cheats and ghastly mockeries were he to be found guilty? It was a simple impossibility. He had now but to wait – to eat out his heart for one other week, and then – oh! joy unspeakable! he would be free – free! A free man – not a prisoner! Did he ever imagine that he would attach such a meaning to the word freedom? It mattered not. Let him but once set foot outside this dismal gaol wall. Again he saw himself on the back of a good horse, or at the claim with good old Jack Polwarth and his wife and Tottie – poor dear Tottie! But here he could no longer follow out the chain of probabilities. His eyes filled with tears, and the once-proud Lance Trevanion, lowered in spirit and strength by confinement and meagre diet, threw himself upon his miserable pallet and sobbed like a child.

The 'next ensuing Court of Quarter Sessions,' to which Lance Trevanion had been committed for trial, was formally opened at Ballarat on a certain Wednesday at ten of the clock. The sheriff was in attendance, with bailiff and minor officials, and also various barristers, including Mr. England. An unusual number of police appeared on the scene, including the superintendent of the district – a very high personage indeed. All were in full uniform, while conspicuous among them stood Sergeant Dayrell, calm and impassive as usual, though a close observer might have noticed an occasional sign of impatience.

When the doors of the court-house were opened a rush took place which filled the building so completely that many were excluded and compelled to remain outside, trusting to occasional reports of the exciting matters within. The judge in his robes, attended by the sheriff, took his seat upon the bench punctually at the appointed time. And once more Lance Trevanion and his fellow-prisoner Ned Lawless were brought forth to serve as a spectacle to a wondering or sympathetic crowd, as the case might be.

The Crown prosecutor, in opening the case, alluded to 'the prevalence of a system of horse-stealing, now become so notorious; if unchecked it might lead to the gravest results. The jury would have an opportunity of hearing the evidence in detail, from which they would of course form their judgment. But they must not lose sight of the fact that the prisoners had been caught "red-handed," if he might use the expression. They were actually in possession of a large number of stolen horses, many of which were of great value. Some had since been identified by their owners, who were chiefly miners and working-men connected with the diggings. He had no desire, he might assure them, to prejudice their minds in any way; he would merely furnish his evidence for the Crown as he was bound to do, and trust to the intelligent jury he saw before him to do their duty without fear or favour. It was a painful sight to him, as it doubtless was to them, to see two such fine specimens of early manhood arraigned for so serious an offence. But no consideration of that sort must be suffered to influence their minds. He would not detain them longer, but would call the first witness.'

As in all trials, the same witnesses as on the preliminary examinations were heard, the difference being that no written depositions were taken, the judge only recording in his notes the evidence with care and exactness. Mr. England cross-examined the witnesses with increased rigour and more searching scrutiny. Every fact or fiction in their previous history which could tend to weaken or discredit their testimony in the eyes of the jury was fully ventilated. Every motive which could possibly colour this testimony against the prisoners was suggested or exposed.

Sergeant Dayrell's evidence was unsparingly criticised. To his calm and carefully worded statements, studiously colourless, but little exception could be taken. Still, more than one historiette had been elicited from the distant part of the colony where he once was stationed which tended to establish his reputation for unscrupulousness, for desire for conviction at all risks. He was forced to acknowledge that he had been the apprehending constable in a well-known stock case near the New South Wales border, as well as to admit that his zeal on that occasion being in conflict with the law, had caused the committing magistrate to be mulcted in heavy costs and damages. These and other facts being mercilessly dragged forth somewhat detracted from the value of his evidence.

Then Catharine Lawless was once more called. Again it seemed that the spectators, as upon the appearance on the stage of a favourite actress, awoke to more than common excitement and intensity of interest. All eyes were upon her as she walked composedly up to the witness-box. Dressed quietly but in perfect taste as before, there was so much grace and freedom about the girl's every movement – such self-possession in her bearing – that she looked superior to her surroundings.

She was evidently on her guard against such a display of emotion or merely feminine weakness as had occurred at the first trial. Calmly and imperturbably she gave her evidence, and as before deposed to having seen Lance Trevanion in the companionship of her brother at Eumeralla, and also at Balooka long before the day of arrest.

If there be any force in the modern doctrines of the projection of nerve force – of the subtle relation between the mesmeric will power and the object of its current – then, as for one moment she turned towards the dock and confronted the lurid light that blazed in Lance Trevanion's haughty and contemptuous regard, she should have trembled and fallen to the earth.

But no such effect followed. She gazed back for an instant with a glance fierce and tameless as his own, then coldly averted her face as she repeated her lesson, as Mr. England vehemently characterised her statement.

'Then you still persist, Catharine Lawless,' said that gentleman, turning with unchivalrous suddenness upon his fair antagonist, 'you persist in declaring that you saw Lance Trevanion both at Balooka and Eumeralla on the date you have stated?'

'I have sworn I did see him,' she replied, while a shade of sullenness commenced to overspread her countenance.

'If these witnesses, Mr. Stirling, Mrs. Delf, Mrs. Polwarth and her husband, besides several others, have sworn that they saw him at Growlers' at a date which makes it absolutely impossible that he could have been within a hundred miles of the localities you mention, is that true or false?'

'I don't care what they swear, I have told the truth.'

'That is what they have sworn. Now, you know Mr. Stirling, Mrs. Delf, Jack Polwarth, and the rest, don't you?'

'Well, yes, I have seen them.'

'Do you think they are people likely to swear to an untruth?'

'I can't say. What I said was the truth.'

'And what they say – false!'

'I suppose so.'

As before, she was the last witness for the Crown. When her evidence was completed, she faced Mr. England, with one indignant, half-revengeful expression on her face, then walked slowly, and with coolest composure, from the court.

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 ægis 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.'