The Court for Crown Cases Reserved is a modern institution, whose workings are not always quite understood by the public.

In every case which is tried before a jury there are two questions to be decided. The first is whether the evidence produced by the plaintiff alone is sufficient in point of law to justify a verdict. The second is whether the balance of evidence at the end of the trial is in favour of the plaintiff or the defendant.

The first of these questions is for the judge, the second for the jury. From the verdict of the jury there is, strictly speaking, no appeal. From the decision of the judge an appeal may be carried right up to the House of Lords.

But in criminal cases, where the Queen is treated as plaintiff, there was anciently no such method of reviewing the judge’s decision. Now a special court has been established, embracing all the common law judges of the High Court, who sit in a body to decide these questions. It was to this tribunal that Tressamer had intended to resort.

But though the prisoner’s legal advisers, both her former and her present one, looked to this court for their client’s deliverance from the extreme penalty of the law, the general public turned to a very different remedy, that of agitation, to be exerted upon a very different authority, an impressionable politician in the Home Office.

Up to the hour of her conviction public opinion had run strongly against Eleanor. Whether this was deliberately aimed at by Tressamer or not, it was the consequence of the policy adopted by him. But no sooner had the law pronounced her doom than the tide turned with startling rapidity, and a gigantic agitation was at once set on foot for a reprieve.

Clergymen of mild manners and susceptible hearts went round canvassing their parishioners for signatures to petitions. Legal gentlemen, whose practice did not yet correspond to their own opinion of their deserts, rushed into print with gratuitous opinions on the evidence and the various points in the case. Newspaper reporters, sensitively alive to the first symptoms of a ‘boom,’ wrote up the tragic situation with graphic pens. They described the youth and beauty of the prisoner, her gentle bringing up, her desolate condition. Even her relations with the counsel for the defence, of which some inkling had transpired, were freely glanced at, and the reader was invited to sympathize with the despair of the lover as well as of the beloved.

Then the illustrated journals took it up. They had already given pictures of the scene of the crime, of the deceased, and of other characters, including the prisoner. But they now threw away the blocks representing Eleanor, and which had originally done service in America, where they represented a female temperance lecturer of moderate attractiveness, and came out with full-page illustrations, taken in one case from the portrait of the most charming actress on the Parisian stage, and all calculated to feed the growing flame of sympathy with the victim of what was now boldly referred to as a ‘miscarriage of justice.’

The sporting fraternity, too, rallied round Eleanor almost to a man. A tremendous number of wagers had been made as to her fate, and those whose success was involved in her escape neglected no means of bringing about the desired end. And as public sentiment has not yet sunk quite so low as to tolerate petitions and meetings against clemency, the natural effect of all this was to make it appear that the suffrages of the whole community were on one side.

Even the jurymen began to repent their verdict. Several of them allowed themselves to be interviewed by pressmen, and went so far as to state that they had given their verdict with much misgiving, and hoped that a commutation of sentence would follow.

Petitions flowed in upon the Home Secretary. Meetings were held, not only in Porthstone and the neighbouring towns, but all over the country. Finally the excitement culminated in a monster meeting in London itself, in one of the largest public halls of the Metropolis, at which the chair was taken by a nobleman, and the speakers included a canon of the Church of England, a Roman cardinal, a leading light of the Wesleyan denomination, a major-general (on half-pay), and an ex-colonial judge.

The office of Home Secretary happened to be held at this time by an experienced member of the legal profession, and it is well known that trained lawyers are far more cautious in condemning, and usually milder in punishing, than laymen. The Home Secretary wavered. He sent for the judge who had presided at the trial, and Sir Daniel Buller, who had had time to recover from his little pique against the prisoner’s counsel, infused his own doubt into the Home Secretary’s mind.

At last the Minister issued a decision. It was a thorough specimen of the not-guilty-but-don’t-do-it-again order of judgment. It stated that the Home Secretary saw no reason to doubt the substantial guilt of Eleanor Owen, but that as, in his opinion, the evidence was of an imperfect character, and failed to throw a clear light upon all the circumstances of the case, including the motive for the crime, he had advised her Majesty to commute the sentence to one of imprisonment for life.

The very day that this unsatisfactory announcement appeared, thirteen judges sat side by side at the Royal Law Courts to consider the point reserved.

Charles Prescott represented the prisoner. If the judges felt any surprise at this change of sides they were careful not to express it. Young Mr. Pollard appeared on behalf of the Crown, but he was led by the great Appleby, Q.C., and, as a matter of fact, was not allowed to open his lips once during the proceedings.

Prescott’s argument was long and elaborate. A crowded bar were present to hear the celebrated case, and the feeling was universal among them that he had never shone so conspicuously on any former occasion. He took up the history of the law of murder from its earliest stages, and along with it he traced the gradual evolution of circumstantial evidence. He showed with what suspicion and reluctance the latter had been gradually admitted into our courts, and how succeeding judges had been careful to fence it in and restrain its application. Then he turned to the particular rule of law which Tressamer had relied on in the Assize Court, and repeated and emphasized the arguments made use of by him. He wound up with an impressive appeal to the judges to lean in the prisoner’s favour, reminding them of the old maxim that a statute must be construed in favour of life, and asking them to apply the same principle in expounding the common law.

Then Appleby, Q.C., addressed the court. In reply to Prescott’s last observations, he said that imperfection of evidence was a good ground for commutation of sentence, but none for releasing the prisoner altogether. This was, of course, a reminder to the judges of the Home Secretary’s decision, announced that morning. Then he proceeded to argue the case on general lines.

He began by stigmatizing Hale’s precept as a mere piece of advice to juries, rather than a maxim of law. He went on to say:

‘The most serious difficulty in following this rule is to know how far to apply it. How much of the deceased’s body is it necessary to produce in order to justify a conviction? If the head had been discovered, surely my learned friend would not venture to argue that that was not sufficient. It seems clear that it must be a question of fact in each case, and a question of fact is eminently one for the jury, and where they are satisfied that a death has taken place, it would be the height of folly for their verdict to be set aside because there was not exactly what would enable a coroner to hold an inquest.

‘In the present case, however, as a matter of fact, an inquest has been held. The proceedings have gone on all along on the assumption which every reasonable man must have formed, namely, that the body of the deceased had been committed to the waves. To set aside the conviction under such circumstances is simply to encourage crime, and to hold out a guarantee of safety to every murderer who will take a little trouble to conceal the remains of his victim.’

When Appleby had finished, Prescott made a brief reply. He confined himself to saying that this was a case of interpreting the law, and not of framing it anew on the ground of expediency. But, he added, even if the court had to decide without reference to authority, he should still be prepared to urge that the danger of convicting one innocent person must always outweigh that of granting immunity to any number of felons, and he reminded their lordships how very rarely such a circumstance as the present occurred in actual experience.

When the judges came to give their opinions it was at once evident that the court was divided. In accordance with old etiquette, the youngest judge delivered himself first, and he, with some hesitation, declared in favour of the prisoner. But the next three all took the opposite side, and did so with great firmness. After them came another who supported Prescott’s view, and then one who sided against him. Sir Daniel Buller repeated his decision at the trial, and Sir John Wiseman dwelt with elaboration on the reasons which swayed his cautious mind to the opposite view.

But the member of the court who was listened to with most attention by his brethren was Sir Stephen James, who had made a European reputation by his studies in criminal law. His works on the subject were in every library, and his mere dictum carried almost as much weight as a decided case. When it began to be evident that he was going in the prisoner’s favour, Prescott took courage again.

His lordship’s decision was brief, and to the point.

‘When I am asked to apply a rule of law to a state of facts,’ he said, ‘and it appears doubtful whether or no the facts are included in the strict wording of the rule, I think it rational to look behind the words to the meaning, and to ask whether the reason for the rule applies with equal force to the facts now before me. Now, the reason I am able to discover for Sir Matthew Hale’s rule is the danger of condemning anyone on a capital charge when you cannot be quite sure that a capital crime has been committed. It is no use to say to me that the jury believe this, that, or the other. The jury may believe it will be a fine day to-morrow, but that does not justify me in condemning a man to death on the assumption that it will be a fine day. The question is whether the jury are justified in coming to their verdict by cogent and decisive evidence. In this case I can see nothing of the sort. An eccentric old lady, with a mania for hoarding jewels, has disappeared in the night, carrying her jewels with her. A hand, identified as hers, because of the rings on it, was found on the beach next day. On those grounds, practically, we are asked to say that she is dead. I can only say that I decline to come to any such conclusion, and furthermore, I am quite satisfied that if Sir Matthew Hale were sitting on this bench to-day he would be in favour of quashing this conviction.’

Two other judges at once subscribed this judgment, and finally, when all but the Chief Justice had spoken, it appeared that the court so far was evenly divided, and that Lord Christobel held the fate of the prisoner in his hands.

Possibly his lordship was not ill-pleased at this. He was a past master of dramatic effect, and in his hands the ancient dignity of Lord Chief Justice of England lost nothing of its imposing character. It may be added that it lost nothing of that higher dignity conferred upon it by the Gascoignes of another age. Lord Christobel had shown on more than one occasion that all ranks, even the highest, were equal in the eye of the law as administered by him. He was the scourge of truckling magistrates, and a thorn in the side of those petty tyrants whom our peculiar system allows to flourish in rural districts in the degraded robes of justice.

He did not long keep the court in suspense. In a gracefully-worded judgment he endorsed the arguments of the prisoner’s counsel, and pronounced the conviction of Eleanor Owen to be void in law. The prisoner was to be discharged forthwith.

Hardly did Prescott wait for the closing words of the judgment before rushing out to the telegraph office at the entrance to the Law Courts, and despatching a message to Eleanor, who was still in Abertaff gaol.

He followed this up by thrusting a few things into a bag, cashing a cheque, and hurrying to Paddington, where he caught an express for the county town.

Within four hours he was in Eleanor’s presence. She had waited for him in the prison, and now put on some outdoor things. He led her to the door, where the governor took a courteous leave of them, and they passed through the gates.

When she found herself for the first time in the open air, Eleanor’s limbs shook beneath her. She looked wildly round, as if fearing to behold some disagreeable object, and then begged Prescott to take her to a seat.

They had emerged into a wide, dirty street, formed by the prison wall on one side and a row of shabby little houses and shops on the other. A few boys were playing marbles on the path, and Eleanor never saw the game afterwards without remembering that evening.

The sun was about to set as they took their way by the quietest route to a little public garden in the neighbourhood, where was a grass plot and some seats. There they stopped, and sat down for a short time to decide on Eleanor’s future steps.

Eleanor’s first words struck heavily in the ears of her companion.

‘I almost wish myself back again. Where am I to go now?’ And she shivered slightly.

‘Oh, Eleanor, don’t say that! To-night you must go to some hotel in the town, but to-morrow we will go up to town together, and I will find you lodgings for a time.’

She turned and looked at him sorrowfully, not reproachfully, and shook her head.

‘No, no. You forget what I said to you before. I have accepted your friendship, and I need not tell you how grateful I am for it, and for your efforts in obtaining my release. But I am still where I was, as far as the world is concerned. They will go on believing me guilty, and while they do I cannot let you associate with me.’

‘Oh, why not? Surely you know by this time what you are to me? Need I tell you, Eleanor——’

She put up her hand.

‘Hush, Charles!’

The word sent a thrill through him. He looked round. Some children were engrossed in a game a hundred yards and more away. The sunlight was fading from gold to crimson across the roofs and chimneys beyond. The whole scene was still and Sabbath-like. A great peace seemed to speak to him, and bid him take courage and hope for better things. He turned again to Eleanor.

‘Thank you,’ he said, in acknowledgment of her tacit confession. ‘But oh! if I am satisfied, what need you care for others? Listen: I have some money—more than enough to keep us for some years. We will go to Australia, where they have not heard of us; or, if they have, we will change our names. I can join the bar there, and do as well as here. Are you not my only happiness? What are other things compared to that?’

Again she looked at him sorrowfully. Again she shook her head. Then she turned and gazed into the green and crimson of the sunset while she spoke.

‘You would not speak like that if you knew me. Do you suppose I have not thought of all these things during my weary prison hours? I have done nothing else since I saw you, since I saw you and knew you loved me, Charles. But I must be strong where you are weak. I must decide in this matter without heeding your wishes. I must decide as your mother would, if you asked her. Would she wish you to marry a convicted murderess? I have to speak plainly, because I want you to understand me at once, Charles, and spare me the pain of further talk like this. I shall go to London by myself, and I shall let you have my address on the strict condition that you are never to come and see me till my character stands clear again. You may write to me sometimes, not often, but if you break the condition and come to me, I shall move somewhere else and hide myself from you altogether. Now let us go and find a hotel for me, different from yours.’

She made a movement to rise. Charles looked round once more. The children had finished their game and disappeared. The brilliancy of the sunset was dropping into dusk and gray. They were alone in the twilight, beneath the faded trees.

‘Eleanor, one pledge that you will not forsake me!’

She turned. Their eyes met; then their lips. The silent, close embrace lasted but a minute, though to both of them it seemed longer than the whole of their previous life. Then they arose and went forth out of their poor paradise, like Adam and Eve, with the world lying empty and desolate in front of them.