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- The Right of Way, Volume 1. - 3/13 -

afternoon, how many times he adjusted his monocle to look at the judge meditatively. Probably no man, for eight hours a day, ever exasperated and tried a judge, jury, and public, as did this man of twenty-nine years of age, who had been known at college as Beauty Steele, and who was still so spoken of familiarly; or was called as familiarly, Charley Steele, by people who never had attempted to be familiar with him.

The second day of the trial had ended gloomily for the prisoner. The coil of evidence had drawn so close that extrication seemed impossible. That the evidence was circumstantial, that no sign of the crime was upon the prisoner, that he was found sleeping quietly in his bed when he was arrested, that he had not been seen to commit the deed, did not weigh in the minds of the general public. The man's guilt was freely believed; not even the few who clung to the opinion that Charley Steele would yet get him off thought that he was innocent. There seemed no flaw in the evidence, once granted its circumstantiality.

During the last two hours of the sitting the prisoner had looked at his counsel in despair, for he seemed perfunctorily conducting the case: was occupied in sketching upon the blotting-pad before him, looking out of the window, or turning his head occasionally towards a corner where sat a half-dozen well-dressed ladies, and more particularly towards one lady who watched him in a puzzled way--more than once with a look of disappointment. Only at the very close of the sitting did he appear to rouse himself. Then, for a brief ten minutes, he cross-examined a friend of the murdered merchant in a fashion which startled the court-room, for he suddenly brought out the fact that the dead man had once struck a woman in the face in the open street. This fact, sharply stated by the prisoner's counsel, with no explanation and no comment, seemed uselessly intrusive and malicious. His ironical smile merely irritated all concerned. The thin, clean-shaven face of the prisoner grew more pinched and downcast, and he turned almost pleadingly towards the judge. The judge pulled his long side-whiskers nervously, and looked over his glasses in severe annoyance, then hastily adjourned the sitting and left the bench, while the prisoner saw with dismay his lawyer leave the court- room with not even a glance towards him.

On the morning of the third day Charley Steele's face, for the first time, wore an expression which, by a stretch of imagination, might be called anxious. He also took out his monocle frequently, rubbed it with his handkerchief, and screwed it in again, staring straight before him much of the time. But twice he spoke to the prisoner in a low voice, and was hurriedly answered in French as crude as his own was perfect. When he spoke, which was at rare intervals, his voice was without feeling, concise, insistent, unappealing. It was as though the business before him was wholly alien to him, as though he were held there against his will, but would go on with his task bitterly to the bitter end.

The court adjourned for an hour at noon. During this time Charley refused to see any one, but sat alone in his office with a few biscuits and an ominous bottle before him, till the time came for him to go back to the court-house. Arrived there he entered by a side door, and was not seen until the court opened once more.

For two hours and a half the crown attorney mercilessly made out his case against the prisoner. When he sat down, people glanced meaningly at each other, as though the last word had been said, then looked at the prisoner, as at one already condemned.

Yet Charley Steele was to reply. He was not now the same man that had conducted the case during the past two days and a half. Some great change had passed over him. There was no longer abstraction, indifference, or apparent boredom, or disdain, or distant stare. He was human, intimate and eager, yet concentrated and impelling: he was quietly, unnoticeably drunk.

He assured the prisoner with a glance of the eye, with a word scarce above a whisper, as he slowly rose to make his speech for the defence.

His first words caused a new feeling in the courtroom. He was a new presence; the personality had a changed significance. At first the public, the jury, and the judge were curiously attracted, surprised into a fresh interest. The voice had an insinuating quality, but it also had a measured force, a subterranean insistence, a winning tactfulness. Withal, a logical simplicity governed his argument. The flaneur, the poseur--if such he was--no longer appeared. He came close to the jurymen, leaned his hands upon the back of a chair--as it were, shut out the public, even the judge, from his circle of interest--and talked in a conversational tone. An air of confidence passed from him to the amazed yet easily captivated jury; the distance between them, so gaping during the last two days, closed suddenly up. The tension of the past estrangement, relaxing all at once, surprised the jury into an almost eager friendliness, as on a long voyage a sensitive traveller finds in some exciting accident a natural introduction to an exclusive fellow- passenger, whom he discovers as human as he had thought him offensively distant.

Charley began by congratulating the crown attorney on his statement of the case. He called it masterly; he said that in its presentations it was irrefutable; as a precis of evidence purely circumstantial it was-- useful and interesting. But, speech-making aside, and ability--and rhetoric--aside, and even personal conviction aside, the case should stand or fall by its total, not its comparative, soundness. Since the evidence was purely circumstantial, there must be no flaw in its cable of assumption, it must be logically inviolate within itself. Starting with assumption only, there must be no straying possibilities, no loose ends of certainty, no invading alternatives. Was this so in the case of the man before them? They were faced by a curious situation. So far as the trial was concerned, the prisoner himself was the only person who could tell them who he was, what was his past, and, if he committed the crime, what was--the motive of it: out of what spirit--of revenge, or hatred-- the dead man had been sent to his account. Probably in the whole history of crime there never was a more peculiar case. Even himself the prisoner's counsel was dealing with one whose life was hid from him previous to the day the murdered man was discovered by the roadside. The prisoner had not sought to prove an alibi; he had done no more than formally plead not guilty. There was no material for defence save that offered by the prosecution. He had undertaken the defence of the prisoner because it was his duty as a lawyer to see that the law justified itself; that it satisfied every demand of proof to the last atom of certainty; that it met the final possibility of doubt with evidence perfect and inviolate if circumstantial, and uncontradictory if eye-witness, if tell-tale incident, were to furnish basis of proof.

Judge, jury, and public riveted their eyes upon Charley Steele. He had now drawn a little farther away from the jury-box; his eye took in the judge as well; once or twice he turned, as if appealingly and confidently, to the people in the room. It was terribly hot, the air was sickeningly close, every one seemed oppressed--every one save a lady sitting not a score of feet from where the counsel for the prisoner stood. This lady's face was not one that could flush easily; it belonged to a temperament as even as her person was symmetrically beautiful. As Charley talked, her eyes were fixed steadily, wonderingly upon him. There was a question in her gaze, which never in the course of the speech was quite absorbed by the admiration--the intense admiration--she was feeling for him. Once as he turned with a concentrated earnestness in her direction his eyes met hers. The message he flashed her was sub- conscious, for his mind never wavered an instant from the cause in hand, but it said to her:

"When this is over, Kathleen, I will come to you." For another quarter of an hour he exposed the fallacy of purely circumstantial evidence; he raised in the minds of his hearers the painful responsibility of the law, the awful tyranny of miscarriage of justice; he condemned prejudice against a prisoner because that prisoner demanded that the law should prove him guilty instead of his proving himself innocent. If a man chose to stand to that, to sternly assume this perilous position, the law had no right to take advantage of it. He turned towards the prisoner and traced his possible history: as the sensitive, intelligent son of godly Catholic parents from some remote parish in French Canada. He drew an imaginary picture of the home from which he might have come, and of the parents and brothers and sisters who would have lived weeks of torture knowing that their son and brother was being tried for his life. It might at first glance seem quixotic, eccentric, but was it unnatural that the prisoner should choose silence as to his origin and home, rather than have his family and friends face the undoubted peril lying before him? Besides, though his past life might have been wholly blameless, it would not be evidence in his favour. It might, indeed, if it had not been blameless, provide some element of unjust suspicion against him, furnish some fancied motive. The prisoner had chosen his path, and events had so far justified him. It must be clear to the minds of judge and jury that there were fatally weak places in the circumstantial evidence offered for the conviction of this man.

There was the fact that no sign of the crime, no drop of blood, no weapon, was found about him or near him, and that he was peacefully sleeping at the moment the constable arrested him.

There was also the fact that no motive for the crime had been shown. It was not enough that he and the dead man had been heard quarrelling. Was there any certainty that it was a quarrel, since no word or sentence of the conversation had been brought into court? Men with quick tempers might quarrel over trivial things, but exasperation did not always end in bodily injury and the taking of life; imprecations were not so uncommon that they could be taken as evidence of wilful murder. The prisoner refused to say what that troubled conversation was about, but who could question his right to take the risk of his silence being misunderstood?

The judge was alternately taking notes and looking fixedly at the prisoner; the jury were in various attitudes of strained attention; the public sat open mouthed; and up in the gallery a woman with white face and clinched hands listened moveless and staring. Charley Steele was holding captive the emotions and the judgments of his hearers. All antipathy had gone; there was a strange eager intimacy between the jurymen and himself. People no longer looked with distant dislike at the prisoner, but began to see innocence in his grim silence, disdain only in his surly defiance.

But Charley Steele had preserved his great stroke for the psychological moment. He suddenly launched upon them the fact, brought out in evidence, that the dead man had struck a woman in the face a year ago; also that he had kept a factory girl in affluence for two years. Here was motive for murder--if motive were to govern them--far greater than might be suggested by excited conversation which listeners who could not hear a word construed into a quarrel--listeners who bore the prisoner at the bar ill-will because he shunned them while in the lumber-camp. If the prisoner was to be hanged for motive untraceable, why should not these two women be hanged for motive traceable!

Here was his chance. He appeared to impeach subtly every intelligence in the room for having had any preconviction about the prisoner's guilt. He compelled the jury to feel that they, with him, had made the discovery of the unsound character of the evidence. The man might be guilty, but their personal guilt, the guilt of the law, would be far greater if they condemned the man on violable evidence. With a last simple appeal, his hands resting on the railing before the seat where the jury sat, his voice low and conversational again, his eyes running down the line of faces of the men who had his client's life in their hands, he said:

"It is not a life only that is at stake, it is not revenge for a life

The Right of Way, Volume 1. - 3/13

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