About the second man there was not the same degree of certainty, for he had never touched the malt or the barrow, and there was no evidence that he knew the first man had stolen it.  The only suspicion—­for it was nothing more—­against him was that he was seen to be walking along the highway near the man who was wheeling the barrow, and as it was daytime, many others were equally guilty.

The third man was still less implicated, for all that appeared against him was that at some time or other he had been seen, either on the day of the theft or just before, to be in a public-house with the thief and asking him to have a drink.

If it had not been at Saffron Walden, where they are so jealous of their malt and such admirers of their maltsters, there would have been no case against any one but the actual thief; and if the Recorder had known the law as well as he knew Saffron Walden, or half as much as Saffron Walden admired him, he would have ruled to that effect.

However, he pointed out to the jury the cases one by one with great care and no stint of language.

“Against the first,” said he, “the case is clear enough:  he is caught with the stolen goods in his possession.  In the second case, perhaps, it is not quite so strong, you will think; but it is for you, gentlemen, not for me, to judge.  You will not forget, gentlemen, he was walking along by the side of the actual thief, and it is for you to say what that means.”  Then, after clearing his throat for a final effort, he said,—­

“Now we come to the third man.  Where was he?  I must say there is a slight difference between his case and that of the other two men, who might be said to have been caught in the very act; but it’s for you, gentlemen, not for me.  It is difficult to point out item by item, as it were, the difference between the three cases; but you will say, gentlemen, whether they were not all mixed up in this robbery—­it’s for you, gentlemen, not for me.”

The jury were not going to let off three such rogues as the Recorder plainly thought them, and instantly returned a verdict of guilty against all.

“I agree with the verdict,” said the Recorder.  “It is a very bad case, and a mercantile community like Saffron Walden must be protected against such depredators as you.  No doubt there are degrees of guilt in your several cases, but I do not think I should be doing my duty to the public if I made any distinction in your sentences:  you must all of you undergo a term of five years’ penal servitude.”

Whereupon Tom Chambers was furious.  Up he jumped, and said,—­

“Really, sir; really—­”

“Yes,” said Knox, “really.”

“Well, then, sir, you can’t do it,” said the counsel; “you cannot give penal servitude for petty larceny.  Here is the Act” (reading):  “‘Unless the prisoner has been guilty of any felony before.’”