I should mention that in those days counsel were not allowed to speak
for the prisoner, but the judge was always in theory supposed to watch
the case on his behalf. In the absence of a _material_ witness the
prisoner would be acquitted.
The learned Mr. Justice Graham asked the accused if he had any
objection to the case being postponed until the next assizes, on the
ground, as the prosecution had alleged, that their most material
witness could not be produced. His lordship put the case as somewhat
of a misfortune for the prisoner, and made it appear that it would be
postponed, if he desired it, as a favour to _him_.
Notwithstanding the judge's courteous manner of putting it, the
prisoner most strenuously objected to any postponement. It was not
for him to oblige the Crown at the expense of a broken neck, and he
desired above all things to be tried in accordance with law. He stood
there on his "jail delivery."
Graham was firm, but polite, and determined to grant the postponement
asked for. In this he was doubtless right, for the interests of
justice demanded it. But to soften down the prisoner's disappointment
and excuse the necessity of his further imprisonment, his lordship
addressed him in the following terms, and in quite a sympathetic
manner:--
"Prisoner, I am extremely sorry to have to detain you in prison, but
_common humanity_ requires that I should not let you be tried in the
absence of an important witness for the prosecution, although at
the same time I can quite appreciate your desire to have your case
speedily disposed of; one does not like a thing of this sort hanging
over one's head.
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