State Trials, Political and Social. Volume 2 (of 2)

by Unknown

FOOTNOTES:

[31] Charles, fifth Baron Mohun (1675?-1712), was the eldest son of the fourth baron, who died from a wound received in a duel when his son was about two years old. He fought his first duel in 1692, breaking out of his lodgings, where he was confined in consequence of a quarrel over dice, for the purpose, with the assistance of the Earl of Warwick of the present case, the grandson of the Lord Holland of the Civil War. This encounter ended in both combatants being disarmed. Two days later he abetted in the murder of Mountfort, an actor. One Captain Hill was in love with Mrs. Bracegirdle, the famous actress, and supposed that he had cause to be jealous of the attentions she received from Mountfort, the equally eminent actor. Accordingly Hill and Mohun formed a plan (estimated to cost £50 in all) to carry off the lady as she came out of the theatre: and providing themselves with a coach-and-six and a body of soldiers set out on the enterprise. They missed Mrs. Bracegirdle at the theatre, but found her by chance coming out of a house in Drury Lane where she had supped. The attempt to carry her off in the coach failed, owing to the vigorous resistance made by her friends. Hill and Mohun, however, were allowed to escort her to her lodgings in Howard Street, where they saw her safely home. Mountfort lived in Norfolk Street, at the bottom of Howard Street; and as he was passing down the latter some two hours later, he was accosted by Mohun in a more or less friendly way; but while they were talking together, he was attacked and killed by Hill, who did not give him time to draw his sword. Hill fled, but Mohun was tried by his peers in Westminster Hall, January 1692-93. The trial excited great interest partly owing to the youth of the prisoner, and on a question being raised as to the degree of complicity necessary to constitute his guilt, he was acquitted. A report of the trial will be found in State Trials, xii. 950. There are also some picturesque references to it in Chapter xix. of Macaulay's History. Mohun fought another duel in 1694, served for two years in Flanders, returned to England, and fought a duel with Captain Bingham in St. James's Park, which was interrupted by the sentries. The same year he was present at the death of Captain Hill, in the Rummer Tavern. The present case occurred in 1698, and seems to have closed his career as a rake. He was sent under Lord Macclesfield on a mission to present the Electress-Dowager Sophia with a copy of the Act of Succession, and he frequently took part in debates in the House of Lords. After Lord Macclesfield's death he became entangled in a long course of litigation with the Duke of Hamilton; and on their meeting in Master's Chambers, remarks passed between them which led to a duel, when both were killed. The Tories suggested that the Whigs had arranged the duel in order to get rid of Mohun because they were tired of him, and Hamilton, because they wanted to prevent his projected embassy to France.

[32] John Lord Somers (1651-1716) was born at Whiteladies, near Worcester, educated at Trinity College, Oxford, and called in 1676. He appeared as junior counsel in the trial of the Seven Bishops, at the instance of Pollexfen (see vol. i. p. 241), and took a conspicuous part in the settlement of the monarchy after the Revolution, being an influential member of the Committee which drafted the Declaration of Rights. He became Solicitor-General in 1689, and Attorney-General in 1692, in which capacity it is curious to notice that he conducted the prosecution of Lord Mohun for the murder of Mountfort (see ante, p. 60). He became William III.'s first Lord Keeper in 1692-3, and Lord Chancellor in 1697. During all this time he was one of William's most trusted advisers, and was consulted by him on the most confidential questions relating to foreign policy. He was also familiar with the leading literary and scientific men of his time, being responsible for Addison's pension, and receiving the dedication of the Tale of a Tub from Swift. He also conferred favours on Rymer and Madox. He resigned the Great Seal in 1700 after a motion for his perpetual exclusion from the presence of the King had been defeated by a small majority in the House of Commons; having already lost the King's confidence by the position he adopted in regard to William's propositions for a standing army, and attracted the hostility of the country partly by his opposition to the bill for the resumption of the grants of forfeited Irish estates. He played a conspicuous part in the reign of Queen Anne as the head of the Whig junto formed at the beginning of that reign, but never resumed office.

[33] Sir Nathan Wright (1653-1721), born of an Essex family, was educated at Emmanuel College, and was called in 1677. He was junior counsel for the Crown in the trial of the Seven Bishops, and opened the pleadings. He became Serjeant in 1692. On the retirement of Lord Somers in 1700, a difficulty was found in providing a successor, and eventually the post of Lord Chancellor was offered to, and accepted by, Wright. He enjoyed no reputation, good or bad, as a judge, except that he was very slow, and generally considered unfit for the place. After holding office for five years he was dismissed on the accession to power by the Whigs in 1705. Speaking of his appointment as Lord Chancellor, Lord Campbell says, 'The occasional occurrence of such elevations seems wisely contrived by Providence to humble the vanity of those who succeed in public life, and to soften the mortification of those who fail.'

[34] Thomas Lord Trevor (1659?-1730) was the son of a Secretary of State of Charles II. He was called in 1680, became a bencher in 1689, Solicitor-General in 1692, Attorney-General in 1695. He refused to succeed Lord Somers in 1700; but in 1701 succeeded Sir George Treby as Chief-Justice of the Common Pleas. He was re-appointed by Queen Anne, and was one of the twelve peers created by her in 1711 to create a majority in the House of Lords. He was removed from office in 1714 on the accession of George I.; but leaving the Tory party, which he had joined in Anne's reign, became Lord Privy Seal in 1726, and President of the Council in 1730, but died six weeks afterwards. He enjoyed a reputation as a good judge; but is chiefly remembered for his proper conduct of Crown prosecutions as Attorney-General after the Revolution.

[35] Benefit of clergy was originally the right of the clergy to be exempt from the jurisdiction of the lay courts, and to be handed over to the ordinary to make 'purgation.' This the accused clerk did by swearing to his own innocence and producing twelve compurgators who swore to the same effect. He was then 'usually acquitted' by a jury of twelve clerks; but otherwise he was degraded and put to penance. The right itself was gradually restricted: partly by a construction of the Statute of Westminster the First (1275), by which it was held to be necessary that the clerk should be indicted before he could claim his benefit; partly by the practice prevailing in the time of Henry VI. that he must first be convicted. Meanwhile its scope had been largely increased by its extension in 1360 to all lay clerks, who were taken to mean persons capable of reading. The law, however, which was applicable to the present case depended on two statutes, 4 Henry VII., c. 13, and 18 Elizabeth, c. 7; by the former any person allowed his clergy was to be branded, and was not to be allowed it again unless he was actually in orders; by the latter purgation was abolished, and any person taking benefit of clergy was to be discharged from prison subject to the power of the judge to imprison him for a year. By a statute of Edward VI. also, a peer ('though he cannot read') was allowed a privilege equivalent to benefit of clergy, but was not to be branded.

A certain number of offences were excluded from benefit of clergy during earlier times, and a great number during the eighteenth century, at the beginning of which the privilege was extended to all prisoners. Finally, the system was abolished in 1827. How this system, occupying as it did an important position in the criminal procedure of this country till a comparatively modern date, impresses a lawyer of the present day, may best be described in the words of Sir James Stephen:—'Of this branch of the law, Blackstone characteristically remarks that the English legislature "in the course of a long and laborious process, extracted by noble alchemy rich medicines out of poisonous ingredients." According to our modern views it would be more correct to say that the rule and the exception were in their origin equally crude and barbarous, that by a long series of awkward and intricate changes they were at last worked into a system which was abolished in a manner as clumsy as that in which it was constructed' (History of the Criminal Law, vol. i. p. 458).... 'The result of this was to bring about, for a great length of time, a state of things which must have reduced the administration of justice to a sort of farce. Till 1487 any one who knew how to read might commit murder as often as he pleased, with no other result, than that of being delivered to the ordinary to make his purgation, with the chance of being delivered to him absque purgatione. That this should have been the law for several centuries seems hardly credible, but there is no doubt that it was. Even after 1487, a man who could read could commit murder once with no other punishment than that of having M. branded on the brawn of his left thumb, and if he was a clerk in orders he could, till 1547, commit any number of murders apparently without being branded more than once' (Ibid., vol. i. p. 462).

[36] Convicted felons were incompetent as witnesses till the passing of Lord Denman's Act in 1843.

[37] Sir John Hawles (1645-1716) was born in Salisbury of a Dorsetshire family. He was educated at Winchester and Queen's College, Oxford. In 1689 he sat in the House of Commons for Old Sarum; he succeeded Sir Thomas Trevor as Solicitor-General in 1695 and so remained till 1702. He afterwards represented various western boroughs in Parliament, most of them Cornish. He was one of the managers of Sacheverell's impeachment in 1710. He died at Upwinborne.

[38] Sir Thomas Powys (1649-1719), of a Shropshire family, was educated at Shrewsbury, and was called in 1673. He became Solicitor-General in 1686, and as a supporter of the dispensing power became Attorney-General in 1687. As such he conducted the prosecution of the Seven Bishops. He frequently appears for the defence in State Trials during the reign of William III. He represented Ludlow in Parliament from 1701 to 1713, was made a Serjeant at the beginning of Anne's reign, and a Judge of the Queen's Bench in 1713. He was, however, removed from the bench on the accession of George I.

[39] To a modern practitioner to whom benefit of clergy is merely an archæological puzzle, it would seem that the proper argument was that the imprisonment was a punishment, and that as French had not been imprisoned he was quit of the law; but two centuries make a great deal of difference in arguments on points of law.

[40] Sir George Treby (1644-1700), the son of a Devon gentleman, entered Exeter College in 1661, and was called in 1671. He represented his native town of Plympton in the House of Commons in both Parliaments in 1679, and was a manager in the impeachment of Lord Stafford. He succeeded Jeffreys as Recorder of London in 1680, but was removed after the success of the Quo Warranto proceedings. He sat in the Oxford Parliament of 1681, and resumed his seat as Recorder after the arrival of the Prince of Orange. He afterwards re-entered Parliament, succeeded Pollexfen as Solicitor-General in 1689, as Attorney-General in the same year, and as Lord Chief-Justice of the Common Pleas in 1692.

[41] Edward Ward was called in 1670, and was engaged to assist Lord Russell in his trial. He was a candidate for the office of Sheriff of London in the famous election of 1683 (ante, pp. 3, 15). He refused a judgeship at the Revolution; became Attorney-General in 1693, and Chief Baron in 1695. He died in 1714. He was an ancestor of the late Mr. G. Ward Hunt.

[42] Sir Edward Nevill was called in 1658. He was knighted in 1681, on presenting an address to Charles II. as Recorder of Bath. He became Serjeant in 1684, and a Baron of the Exchequer in 1685. He was dismissed six months afterwards for refusing to support the royal assumption of the dispensing power. Fosse gives a striking extract from his evidence before Parliament in 1689, to show how the power of the Executive was actually brought to bear on the Stewart judges. He was restored to his office after the Revolution, removed to the Common Pleas in 1691, and died in 1705.

SPENCER COWPER AND OTHERS

Spencer Cowper,[43] a barrister; Ellis Stephens and William Rogers, attorneys; and John Marston, a scrivener, were indicted at the Hertford Summer Assizes in 1699 for the murder of Sarah Stout, on the 13th of the previous March. They were tried at the same Assizes, before Baron Hatsell,[44] on the 16th of July.

The indictment alleged that they had murdered Sarah Stout by strangling her, and had then thrown her body into the Priory River to conceal the body. To this, all the prisoners pleaded Not Guilty.

Jones appeared for the prosecution; Cowper defended himself, and practically the other prisoners as well.

The prisoners agreed that Cowper's challenges should be taken to be the challenges of all of them; and enough jurors were then challenged to exhaust the panel. Accordingly, after some discussion, Jones was called upon to show cause for his challenges.

Clerk of Arraigns—Call Daniel Clarke.

Hatsell, Baron—Mr. Jones, if you can say any juryman hath said anything concerning the cause, and given his verdict by way of discourse, or showed his affection one way or the other, that would be good cause of challenge.

Jones—My lord, then we should keep you here till to-morrow morning.

Hatsell, Baron—If there hath been any great friendship between any juryman and the party, it will look ill if it is insisted upon.

Cowper—My lord, I do not insist upon it, but I profess I know of no friendship, only that Mr. Clarke in elections hath taken our interest in town; I know I have a just cause, and I am ready to be tried before your lordship and any fair jury of the county; therefore I do not insist upon it.

A jury was then sworn, and Jones opened the case for the prosecution.

Jones—May it please your lordship, and you gentlemen that are sworn, I am of counsel for the king in this cause, and it is upon an indictment by which the gentlemen at the bar stand accused for one of the foulest and most wicked crimes almost that any age can remember; I believe in your county you never knew a fact of this nature; for here is a young gentlewoman of this county strangled and murdered in the night time. The thing was done in the dark, therefore the evidence cannot be so plain as otherwise might be.

After she was strangled and murdered, she was carried down into a river to stifle the fact, and to make it supposed she had murdered herself; so that it was indeed, if it prove otherwise, a double murder, a murder accompanied with all the circumstances of wickedness and villainy that I remember in all my practice or ever read of.

This fact, as it was committed in the night time, so it was carried very secret, and it was very well we have had so much light as we have to give so much satisfaction; for we have here, in a manner, two trials; one to acquit the party that is dead, and to satisfy the world, and vindicate her reputation, that she did not murder herself, but was murdered by other hands. For my part, I shall never, as counsel in the case of blood, aggravate; I will not improve or enlarge the evidence at all; it shall be only my business to set the fact as it is, and to give the evidence, and state it as it stands here in my instructions.

My lord, for that purpose, to lead to the fact, it will be necessary to inform you, that upon Monday the 13th of March, the first day of the last assizes here, Mr. Cowper, one of the gentlemen at the bar, came to this town, and lighted at Mr. Barefoot's house, and staid there some time, I suppose to dry himself, the weather being dirty, but sent his horse to Mrs. Stout's, the mother of this gentlewoman. Some time after he came thither himself, and dined there, and staid till four in the afternoon; and at four, when he went away, he told them he would come and lodge there that night, and sup.

According to his word he came there, and had the supper he desired; after supper Mrs. Stout, the young gentlewoman, and he sat together till near eleven o'clock. At eleven o'clock there was orders given to warm his bed, openly to warm his bed in his hearing. The maid of the house, gentlemen, upon this went up stairs to warm his bed, expecting the gentleman would have come up and followed her before she had done; but it seems, while she was warming his bed, she heard the door clap together; and the nature of that door is such, that it makes a great noise at the clapping of it to, that any body in the house may be sensible of any one's going out. The maid upon this was concerned, and wondered at the meaning of it, he promising to lie there that night; she came down, but there was neither Mr. Cowper nor Mrs. Stout; so that we suppose, and for all that we can find and learn, they must go out together. After their going out, the maid and mother came into the room; and the young gentlewoman not returning, nor Mr. Cowper, they sat up all night in the house, expecting what time the young gentlewoman would return. The next morning, after they had sat up all night, the first news of this lady was, that she lay floating and swimming in water by the mill dam. Upon that there was several persons called; for it was a surprize how this should come to pass. There she lay floating with her petticoats and apron, but her night rail and morning gown were off, and one of them not found till some time after; and the maid will give you an account how it came to be found.

This made a great noise in the country; for it was very extraordinary, it happening that from the time the maid left Mr. Cowper and this young gentlewoman together, she was not seen or heard of till next morning, when she was found in this condition, with her eyes broad open, floating upon the water.

When her body came to be viewed, it was very much wondered at; for in the first place, it is contrary to nature, that any persons that drown themselves should float upon the water. We have sufficient evidence, that it is a thing that never was; if persons come alive into the water, then they sink; if dead, then they swim; that made some more curious to look into this matter. At first, it was thought that such an accident might happen, though they could not imagine any cause for this woman to do so, who had so great prosperity, had so good an estate, and had no occasion to do an action upon herself so wicked and so barbarous, nor cannot learn what reason she had to induce her to such a thing. Upon view of the body, it did appear there had been violence used to the woman; there was a crease round her neck, she was bruised about her ear; so that it did seem as if she had been strangled either by hands or a rope.

Gentlemen, upon the examination of this matter, it was wondered how this matter came about, it was dark and blind. The coroner at that time, nor these people, had no evidence given, but the ordinary evidence, and it passed in a day. We must call our witnesses to this fact, that of necessity you must conclude she was strangled, and did not drown herself. If we give you as strong a proof as can be upon the nature of the fact, that she was strangled, then the second matter under that enquiry will be, to know who, or what persons, should be the men that did the fact. I told you before, it was, as all wicked actions are, a matter of darkness, and done in secret to be kept as much from the knowledge of men as was possible.

Truly, gentlemen, as to the persons at the bar, the evidence of the fact will be very short, and will be to this purpose.

Mr. Cowper was the last man unfortunately in her company; I could wish he had not been so with all my heart; it is a very unfortunate thing, that his name should upon this occasion be brought upon the stage: but then, my lord, it was a strange thing, here happens to be three gentlemen; Mr. Marson, Mr. Rogers, and Mr. Stephens. As to these three men, my lord, I do not hear of any business they had here, unless it was to do this matter, to serve some interest or friend that sent them upon this message; for, my lord, they came to town (and in things of this nature it is well we have this evidence; but if we had not been straightened in time, it would have brought out more; these things come out slowly), these persons, Mr. Stephens, Mr. Rogers, and Mr. Marson, came to town here on the thirteenth of March last, the assize day. My lord, when they came to town, they came to an house, and took lodgings at one Gurrey's; they took a bed for two, and went out of their lodging, having taken a room with a large bed in it; and afterwards they went to the Glove and Dolphin, and then about eight o'clock one Marson came to them there; in what company they came, your lordship and the jury will know by and by; they staid there, my lord, at the Glove from eight to eleven, as they say. At eleven these three gentlemen came all into their lodging together to this Gurrey's. My lord, when they came in, it was very observable amongst them, unless there had been a sort of fate in it, first, That they should happen to be in the condition they were; and, secondly, fall upon the discourse they did at that time; for, my lord, they called for fire, and the fire was made them; and while the people of the house were going about, they observed and heard these gentlemen talk of Mrs. Sarah Stout; that happened to be their discourse; one said to the other, Marson, she was an old sweetheart of yours: Ay, saith he, but she cast me off, but I reckon by this time a friend of mine has done her business. Another piece of discourse was, I believe a friend of mine is even with her by this time. They had a bundle of linen with them, but what it was is not known, and one takes the bundle and throws it upon the bed; well, saith he, her business is done, Mrs. Sarah Stout's courting days are over; and they sent for wine, my lord; so after they had drank of the wine they talked of it, and one pulled out a great deal of money; saith one to another, what money have you spent to-day? Saith the other, thou hast had 40 or 50 pounds for thy share: Saith the other, I will spend all the money I have, for joy the business is done.

My lord, this discourse happened to be among them; which made people of the house consider and bethink themselves; when the next day they heard of this Mrs. Stout's being found in the water, this made them recollect and call to mind all these discourses.

My lord, after these gentlemen had staid there all night, next morning, truly, it was observed (and I suppose some account will be given of it) that Mr. Cowper and they did meet together, and had several discourses, and that very day went out of town; and I think as soon as they came to Hoddesden, made it all their discourse and business to talk of Mrs. Stout. My lord, we will call our witnesses, and prove all these facts that I have opened to your lordship; and then I hope they will be put to give you some account how all these matters came about.

Call Sarah Walker (who was sworn).

Jones—Mrs. Walker, pray give an account to my lord and the jury, of Mr. Cowper's coming to your house the 13th of March, and what was done from his coming there at night to his going out?

Walker—May it please you, my lord, on Friday before the last assizes, Mr. Cowper's wife sent a letter to Mrs. Stout, that she might expect Mr. Cowper at the assize time; and therefore we expected Mr. Cowper at that time, and accordingly provided; and as he came in with the judges, she asked him if he would alight? He said no; by reason I come in later than usual, I will go into the town and show myself, but he would send his horse presently. She asked him, how long it would be before he would come, because they would stay for him? He said, he could not tell, but he would send her word; and she thought he had forgot, and sent me down to know, whether he would please to come? He said, he had business, and he could not come just then; but he came in less than a quarter of an hour after, and dined there, and he went away at four o'clock: and then my mistress asked him, if he would lie there? And he answered yes, and he came at night about 9; and he sat talking about half an hour, and then called for pen, ink and paper, for that, as he said, he was to write to his wife; which was brought him, and he wrote a letter; and then my mistress went and asked him, what he would have for supper? He said milk, by reason he had made a good dinner; and I got him his supper, and he eat it; after she called me in again, and they were talking together, and then she bid me make a fire in his chamber; and when I had done so, I came and told him of it, and he looked at me, and made me no answer; then she bid me warm the bed, which accordingly I went up to do as the clock struck eleven, and in about a quarter of an hour I heard the door shut, and I thought he was gone to carry the letter, and staid about a quarter of an hour longer, and came down, and he was gone and she; and Mrs. Stout the mother asked me the reason why he went out when I was warming his bed? and she asked me for my mistress, and I told her I left her with Mr. Cowper, and I never saw her after that nor did Mr. Cowper return to the house.

She sat up all night; she next saw Sarah Stout when she had been taken out of the water the next morning. On being pressed, she was certain that it was a quarter after eleven by their clock when Cowper left the house; their clock was half an hour faster than the town clock.

Cowper—Pray, what account did you give as to the time before my lord chief-justice Holt?

Walker—I gave the account that it was eleven, or quarter of an hour after.

Cowper—In her depositions there is half an hour's difference; for then she said it was half an hour after ten.

Hatsell, Baron—Which clock was earliest, yours or the town clock?

Walker—Ours was half an hour faster than theirs.

Cowper—How came you to know this?

Walker—By reason that dinner was dressed at the cook's, and it was ordered to be ready by two o'clock, and it was ready at two by the town clock, and half an hour after two by ours.

Cowper—When you came down and missed your mistress, did you enquire after her all that night?

Walker—No, Sir, I did not go out of the doors; I thought you were with her, and so I thought she would come to no harm.

Cowper—Here is a whole night she gives no account of. Pray, mistress, why did not you go after her?

Walker—My mistress would not let me.

Cowper—Why would she not let you?

Walker—I said I would see for her? No, saith she, by reason if you go and see for her, and do not find her, it will make an alarm over the town, and there may be no occasion.

Cowper—Did your mistress use to stay out all night?

Walker—No, never.

Cowper—Have not you said so?

Walker—I never said so in my life.

Cowper—Pray, Mrs. Walker, did you never take notice that your mistress was under melancholy?

Walker—I do not say but she was melancholy; she was ill for some time; and I imputed it to her illness, and I know no other cause.

Cowper—Have you not often told people that your mistress was a melancholy person, upon your oath?

Walker—I have said she hath been ill, and that made her melancholy.

The witness admitted that she had bought poison twice within the last six months; she bought it at her own instance, and not at the order of Mrs. Stout, or of Mrs. Crooke. She asked for white mercury. She bought it to poison a dog with; the dog used to come about the house and do mischief. It was another maid who gave it to the dog; she swore at the inquest that she had given it because she had seen it given; it was given in warm milk which did not seem discoloured.

Hatsell, Baron—You said just now your mistress was ill, and that made her melancholy; what illness was it?

Walker—My lord, she had a great pain in her head.

Hatsell, Baron—How long had she been troubled with it?

Walker—Ever since last May was twelve months was the beginning of it.

Jones—Did you ever find her in the least inclined to do herself a mischief?

Walker—No, I never did.

Cowper—You bought poison twice, did you give all the poison you bought to the dog?

Walker—Yes.

Cowper—The first and the last?

Walker—Yes, the whole.

Cowper—How much did you buy?

Walker—I am not certain how much I bought.

Cowper—Pray, what mischief did it do the dog?

Walker—I cannot tell, he may be alive till now for aught I know.

Cowper—What mischief did the dog do?

Walker—A great deal, he threw down several things and broke them.

Jones—Did Mr. Cowper, upon your oath, hear Mistress Stout give you order to make his fire, and warm his bed?

Walker—He knows best, whether he heard it or no; but he sat by her when she spake it.

Jones—Did she speak of it so as he might hear?

Walker—Yes, she did; for he was nearer than I.

Jones—And did not he contradict it?

Walker—Not in the least.

Jones—Was it the old or young woman that gave you the order?

Walker—The young woman.

Cowper—Pray did the dog lap it, or did you put it down his throat, upon your oath?

Walker—No, he lapt it, upon my oath.

Jones—Did Mr. Cowper send for his horse from your house the next day?

Walker—I cannot say that; I was not in the way.

Jones—Did he come to your house afterwards?

Walker—No, I am sure he did not.

Jones—Was the horse in your stable when it was sent for?

Walker—Yes, sir.

Jones—And he did not come to your House again, before he went out of town?

Walker—No, sir.

Jones—Do you know which way he went out of town?

Walker—No, Sir.

Hatsell, Baron—Did Mr. Cowper use to lodge at your house at the assizes?

Walker—No, my lord, not since I came there; the sessions before he did.

Cowper—Where did you come to invite me to dinner?

Walker—At Mr. Barefoot's.

Cowper—Then you knew I was to lodge there?

Hatsell, Baron—Who wrote the letter on Friday, that Mr. Cowper would lodge there?

Walker—I know not who wrote it, his wife sent it.

Jones—Did he tell you he would lodge there that night before he went away?

Walker—When he went from dinner he said so.

James Berry could not remember exactly which day it was that Sarah Stout was found in his mill; but he went out at six o'clock to shoot a flush of water and saw something floating in the water, and on going to see what it was, saw that it was part of her clothes. He did not see her face; no part of her body was above the water, only part of her clothes. The water might be about five foot deep and she might be about five or six inches under the water. She lay upon her side; when she was taken out her eyes were open.

Jones—Was she swelled with water?

Berry—I did not perceive her swelled; I was amazed at it; and did not so much mind it as I should.

Jones—But you remember her eyes were staring open?

Berry—Yes.

Jones—Did you see any marks or bruises about her?

Berry—No.

Cowper—Did you see her legs?

Berry—No, I did not.

Cowper—They were not above the water?

Berry—No.

Cowper—Could you see them under the water?

Berry—I did not so much mind it.

Cowper—Did she lie straight or double, driven together by the stream?

Berry—I did not observe.

Cowper—Did you not observe the weeds and trumpery under her?

Berry—There was no weeds at that time thereabouts.

Jones—Was the water clear?

Berry—No, it was thick water.

Jones—Was there anything under her in the water to prevent her sinking?

Berry—No, I do not know there was; she lay on her right side, and her right arm was driven between the stakes, which are within a foot of one another.

Jones—Did anything hinder her from sinking?

Berry—Not that I saw.

Cowper—Mr. Berry, if I understand you right, you say her arm was driven between the stakes, and her head between the stakes; could you perceive her right arm, and where was her left arm?

Berry—Within a small matter upon the water.

Hatsell, Baron—Did you see her head and arm between the stakes?

Berry—Yes, her arm by one stake and her head by another.

Jones—Did her arm hang down or how?

Berry—I did not mind so much as I might have done.

John Venables and Leonard Dell corroborated Berry's account of the position of the body, the latter asserting that the right arm did not reach to the ground. Dell also helped to carry the body to land, but saw no bruises.

Hatsell, Baron—When you took her out of the water, did you observe her body swelled?

Dell—We carried her into the meadow, and laid her on the bank-side, and there she lay about an hour, and then was ordered to be carried into the miller's.

Hatsell, Baron—Did you observe that any water was in the body?

Dell—None at all that I could see; but there was some small matter of froth came from her mouth and nostrils.

Juryman—My lord, I desire to know whether her stays were laced.

Dell—Yes, she was laced.

Cowper—How was she taken out of the water?

Dell—My lord, we stood upon the bridge, I and another man, where she lay, and he laid hold of her and took her out.

Jones—And did you not perceive she was hung?

Dell—No, my lord.

John Ulfe saw Mrs. Stout when she was taken out of the water; she lay there on one side; there was nothing at all to hold her up; she lay between a couple of stakes, but the stakes could not hold her up.

Katherine Dew, Edward Blackno, William Edmunds, William Page, William How, and John Meager all gave the same account of the position and state of the body, Dew and Ulfe adding that her shoes and stockings were not muddy.

Jones—Now, my lord, we will give an account how she was when she was stript, and they came to view the body. Call John Dimsdale, junior. (Who was sworn.)

Dimsdale—My lord, I was sent for at night on Tuesday the last assizes.

Cowper—My lord, if your lordship pleases, I have some physicians of note and eminency that are come down from London; I desire that they may be called into Court to hear what the surgeons say.

Hatsell, Baron—Ay, by all means.

Cowper—My lord, there is Dr. Sloane, Dr. Garth, Dr. Morley, Dr. Gilstrop, Dr. Harriot, Dr. Wollaston, Dr. Crell, Mr. William Cowper, Mr. Bartlett, and Mr. Camlin. [Who respectively appeared in Court.]

Jones—Give an account how you found Mrs. Stout.

Hatsell, Baron—You are a physician, I suppose, Sir?

Dimsdale[45]—A surgeon, my lord. When I was sent for to Mrs. Stout's, I was sent for two or three times before I would go; for I was unwilling after I heard Mrs. Stout was drowned; for I thought with myself, what need could there be of me when the person was dead? but she still sent; and then I went with Mr. Camlin, and found a little swelling on the side of her neck, and she was black on both sides, and more particularly on the left side, and between her breasts up towards the collar-bone; and that was all I saw at that time, only a little mark upon one of her arms, and I think upon her left arm.

Jones—How were her ears?

Dimsdale—There was a settling of blood on both sides the neck, that was all I saw at that time.

Jones—How do you think she came by it?

Dimsdale—Truly I only gave an account just as I say now to the gentlemen at that time, I saw no more of it at that time, but about six weeks after the body was opened by Dr. Phillips——

Cowper—My lord, he is going to another piece of evidence and I would ask him——

Jones—Let us have done first; how was her ears?

Dimsdale—There was a blackness on both ears, a settling of blood.

Jones—Call Sarah Kimpson.

Hatsell, Baron—Mr. Cowper, now you may ask him anything, they have done with him.

Cowper—I would ask him, whether he was not employed to view these particular spots he mentions at the Coroner's inquest?

Dimsdale—I was desired to look upon the face and arms, and breast, because they said there was a settling of blood there.

Cowper—When you returned to the Coroner's inquest, what did you certify as your opinion?

Dimsdale—I did certify that there was a settling of blood; but how it came I could not tell.

Cowper—I ask you, Sir, did not you say it was no more than a common stagnation usual in dead bodies?

Dimsdale—I do not remember a word of it.

Cowper—Sir, I would ask you; you say the spot was about the collar-bone; was it above or below?

Dimsdale—From the collar-bone downwards.

Cowper—Had she any circle about her neck?

Dimsdale—No; not, upon my oath.

Sarah Kimpson saw the body examined; she saw a great bruise behind the ear, as big as her hand, and another under her collar-bone.

Jones—Did you see nothing about her neck?

Kimpson—Nothing round her neck; on the side of her neck there was a mark.

Jones—Was there any other part bruised?

Kimpson—Only her left wrist, and her body was very flat and lank.

She saw the body the day it was found; it was not swollen; she did not see any water about it. She had seen a child which was drowned in the same place about ten weeks before; it was drowned at night and found the next morning; it was found at the bottom of the river, the eyes were shut, and the body was very much swelled.

Sarah Peppercorn saw the body of Sarah Stout when it was brought to Mrs. Stout's house. She saw bruises on the head and near the ear. Mrs. Stout asked her whether her daughter had been with child, and she said she had not; she was a midwife.

Elizabeth Husler was sworn.

Jones—Had you the view of the body of Mrs. Sarah Stout the day you heard she was drowned?

Husler—She was not drowned, my lord; I went thither and helped to pull off her clothes.

Jones—In what condition was her body?

Husler—Her body was very lank and thin, and no water appeared to be in it.

There was no water about her mouth and nose; there were bruises at the top of the collar-bone and upon both her ears.

Ann Pilkington saw the body, and gave the same evidence as to its general condition as the other witnesses.

Cowper—Had she any circle about her neck?

Pilkington—No, not that I did see.

Cowper—Pray, did you not make some deposition to that purpose that you know of?

Pilkington—Sir, I never did, and dare not do it.

Cowper—It was read against me in the King's Bench, and I will prove it; was not Mr. Mead with you at the time of your examination?

Pilkington—Yes.

Cowper—Did he not put in some words, and what were they?

Pilkington—Not that I know of.

Cowper—But you never swore so, upon your oath?

Pilkington—No, I do not believe I did; if I did it was ignorantly.

Jones—Here is her examination, it is 'cross her neck.'

Mr. Coatsworth, a surgeon, was called and deposed that in April he had been sent for, by Dr. Phillips, to come to Hertford to see the body of Mrs. Stout, who had been six weeks buried. Various parts of the body were examined; the woman had not been with child; the intestines and stomach were full of air, but there was no water in them, or the breast, or lobes of the lungs; there was no water in the diaphragm.

Then I remember I said, this woman could not be drowned, for if she had taken in water, the water must have rotted all the guts; that was the construction I made of it then; but for any marks about the head or neck, it was impossible for us to discover it, because they were so rotten.

The inspection was made on the 28th of April, and the woman was drowned on the 13th of March. The doctor had offered to examine the skull, to see if it had been injured, 'but they did not suspect a broken skull in the case, and we did not examine it.' All the other parts were sound.

Jones—Call John Dimsdale.

Cowper—My lord, I would know, and I desire to be heard to this point; I think where the Coroner's inquest have viewed the body, and the relations have been heard, and the body buried, that it is not to be stirred afterwards for any private inspection of parties, that intend to make themselves prosecutors; but if it is to be taken up, it is to be done by some legal authority; for if it should be otherwise, any gentleman may be easily trepanned: for instance, if they should have thought fit, after the Coroner's view, to have broken the skull into a hundred pieces, this was a private view altogether among themselves. Certainly, if they intended to have prosecuted me, or any other gentleman upon this evidence, they ought to have given us notice, that we might have had some surgeons among them, to superintend their proceedings. My lord, with submission, this ought not to be given in evidence.

Hatsell, Baron—Mr. Cowper, I think you are not in earnest; there is no colour for this objection: if they did take up the body without notice, why should not that be evidence? unless you think they had a design to forswear themselves.

Cowper—Had you a Melius Inquirendum, or any lawful warrant for making this inspection?

Coatsworth—No, there was not.

Hatsell, Baron—Suppose they did an ill thing in taking up the body without some order, though I do not know any more ill in taking up that body than any other; but, however, is that any reason why we should not hear this evidence?

Coatsworth—Mr. Camblin, sir Wm. Cowper's surgeon, was there by.

Mr. Dimsdale, senior, a surgeon, was sworn and deposed that he had been sent for on the 28th of April by Mrs. Stout, to view the body of her daughter.

Finding her head so much mortified, down to her neck, we thought all the parts were seized, and had a consultation, whether we should open her or not; but Mrs. Stout was very enraged, because a great scandal had been raised, that her daughter was with child; and she said she would have her opened to clear her reputation.

The body was examined, with the same result that the other witness had described, no water being found either in the stomach or the lungs.

After this we had a consultation, to consider whether she was drowned or not drowned; and we were all of opinion that she was not drowned; only Mr. Camblin desired he might be excused from giving his opinion whether she was drowned or not; but all the rest of us did give our opinions that she was not drowned.

The grounds for this opinion were the absence of water from the lungs and intestines; and this was a sign which would show whether she had been drowned or not weeks after her death. In answer to Cowper he admitted that he had never seen a body opened which had been drowned six weeks. If a body had been drowned a fortnight, the bowels would be so rotten that it would be impossible to come near it.

John Dimsdale, junior, believed that the body had not been drowned, and signed a certificate to that effect after looking at the body; he believed it, because he found no water in the body. He had seen the child that was drowned the morning after it was drowned, and had found abundance of water in the body then.

Dr. Dimsdale saw the body after it was opened, and on finding no water in the thorax or abdomen, signed the certificate. Had the woman been drowned he would have expected to find water in the thorax.

Cowper—Is it possible there should be water in the thorax according to your skill?

Dimsdale—Yes, we did think there would have been, if she had been drowned.

He would have expected to find traces of it after six weeks.

Cowper—Pray by what passage does the water go into the thorax?

Dimsdale—It will be very difficult for me to describe the manner here; but we should have found some in the stomach and intestines.

Cowper—Pray, sir, how should it go into the thorax?

Dimsdale—By the lymphæduct, if carried by any means.

No water would come into a body after it was dead, but he questioned whether or not it might come into the windpipe.

Cowper—Sir, I would ask you, was you not angry that Mr. Camblin would not join with you in opinion?

Dimsdale—No.

Cowper—Did you not tell him that you were a graduate physician, and was angry he would not join you?

Dimsdale—Suppose I did?

Hatsell, Baron—But did you so or no?

Dimsdale—Yes, my lord, we had some words about it.

Jones—Swear Dr. Coatsworth. (Which was done.) Now, my lord, we call these gentlemen that are doctors of skill, to know their opinions of them that are found floating without water in them, how they came by their death.

Dr. Coatsworth—I have not seen many drowned bodies to make observation upon; but it is my opinion, that every body that is drowned, is suffocated by water passing down the windpipe into the lungs upon respiration; and at the same time, the water pressing upon the gullet, there will be a necessity of swallowing a great part of it into the stomach; I have been in danger of being drowned myself, and I was forced to swallow a great quantity of water. If a person was drowned, and taken out immediately, as soon as the suffocation was effected, I should not wonder if there were but little water in the stomach and guts; but if it lay in the water several hours, it must be very strange if the belly should not be full of water; but I will not say, it is impossible it should be otherwise.

Cowper—I desire to know, whether this gentleman attempted to drown himself, or was in danger of being drowned by accident?

Dr. Coatsworth—It was by accident: I was passing up the ship-side, and took hold of a loose rope instead of the entering rope, which failing me, I fell into the water.

Cowper—But you struggled to save yourself from drowning?

Dr. Coatsworth—I did so; I have seen several persons that have been drowned, and they have lain several days, until by fermentation they have been raised; but I never made my observations of any persons that have been drowned above six hours.

Jones—Did you ever hear of any persons that, as soon as they were drowned, had swam above water?

Dr. Coatsworth—I have not known such a case.

Cowper—Did you ever know, Sir, a body that was otherwise killed, to float upon the water?

Dr. Coatsworth—I never made any observation of that.

Hatsell, Baron—Dr. Browne has a learned discourse, in his Vulgar Errors, upon this subject, concerning the floating of dead bodies; I do not understand it myself, but he hath a whole chapter about it.[46]

Then Dr. Nailor was sworn.

Jones—We ask you the same question that Dr. Coatsworth was asked, What is your opinion of dead bodies? If a body be drowned, will it have water in it or no?

Dr. Nailor—My lord, I am of opinion, that it will have a quantity if it be drowned; but if there be no water in the body, I believe that the person was dead before it was put into the water.

Cowper—I would ask the doctor one question, my lord, Whether he was not a constant voter against the interest of our family in this corporation?

Dr. Nailor—I never did come to give a vote but sir William Cowper, or his son, opposed me, and said I had no right to vote.

Cowper—I would have asked the same question of the Dimsdales, if I had remembered it; they are of another party, as this gentleman is.

Hatsell, Baron—It is not at all material, as they are witnesses. Then call Mr. Babington. (Who was sworn.)

Jones—Pray, what is your opinion of this matter?

Babington—I am of opinion, that all bodies that go into the water alive and are drowned, have water in them, and sink as soon as they are drowned, and do not rise so soon as this gentlewoman did.

Cowper—Pray, what is your profession, Sir?

Babington—I am a surgeon.

Cowper—Because Mr. Jones called you doctor.

Hatsell, Baron—Did you ever see any drowned bodies?

Babington—Yes, my lord, once I had a gentlewoman a patient that was half an hour under water, and she lived several hours after, and in all that time she discharged a great quantity of water; I never heard of any that went alive into the water, and were drowned, that floated so soon as this gentlewoman did; I have heard so from physicians.

Hatsell, Baron—I have heard so too, and that they are forced to tye a bullet to dead bodies thrown into the sea, that they might not rise again.

Cowper—The reason of that is, that they should not rise again, not that they will not sink without it. But I would ask Mr. Babington, whether the gentlewoman he speaks of went into the water voluntarily, or fell in by accident?

Babington—By accident, but I believe that does not alter the case.

Dr. Burnet was called, and expressed an opinion that if a person jumped into the water or fell in by accident they would swallow and inhale water as long as they were alive, but not afterwards; and that they would sink.

Dr. Woodhouse expressed the same opinion. If a person had swallowed water in drowning, signs of it would be visible some time afterwards.

Jones—Call Edward Clement. (Who was sworn.) Are not you a seaman?

Clement—Yes, Sir.

Jones—How long have you been so?

Clement—Man I have writ myself but six years, but I have used the sea nine or ten years.

Jones—Have you known of any men that have been killed, and thrown into the sea, or who have fallen in and been drowned? Pray tell us the difference as to their swimming and sinking.

Clement—In the year '89 or '90, in Beachy fight, I saw several thrown overboard during the engagement, but one particularly I took notice of, that was my friend, and killed by my side; I saw him swim for a considerable distance from the ship; and a ship coming under our stern, caused me to lose sight of him, but I saw several dead bodies floating at the same time; likewise in another engagement, where a man had both his legs shot off, and died instantly, they threw over his legs; though they sunk, I saw his body float: likewise I have seen several men who have died natural deaths at sea, they have when they have been dead had a considerable weight of ballast and shot made fast to them, and so were thrown overboard; because we hold it for a general rule, that all men swim if they be dead before they come into the water; and on the contrary, I have seen men when they have been drowned, that they have sunk as soon as the breath was out of their bodies, and I could see no more of them. For instance, a man fell out of the Cornwall, and sunk down to rights, and seven days afterwards we weighed anchor, and he was brought up grasping his arm about the cable, and we have observed in several cases, that where men fall overboard, as soon as their breath is out of their bodies they sink downright; and on the contrary, where a dead body is thrown overboard without weight, it will swim.

Jones—You have been in a fight; how do bodies float after a battle?

Clement—Men float with their heads just down, and the small of their back and buttocks upwards; I have seen a great number of them, some hundreds in Beachy-head fight, when we engaged the French. I was in the old Cambridge at that time. I saw several (what number I will not be positive, but there were a great number, I cannot guess to a score) that did really swim, and I could see them float for a considerable distance.

Jones—Have you seen a shipwreck?

Clement—Yes; the Coronation, in September 1691. I was then belonging to the Dutchess, under the command of captain Clement; we looked out and see them taking down their masts; we saw the men walking up and down on the right side, and the ship sink down, and they swam up and down like a shoal of fish one after another; and I see them hover one upon another and see them drop away by scores at a time; and there was an account of about nineteen that saved themselves, some by boats, and others by swimming; but there were no more saved out of the ship's complement, which was between five and six hundred, and the rest I saw sinking downright, some twenty at a time. There was a fisherman brought our captain word, that in laying in of his nets he drew up some men close under the rocks that were drowned belonging to the Coronation. We generally throw in bags of ballast with them.

Jones—I suppose all men that are drowned, you sink them with weights?

Clement—Formerly shot was allowed for that purpose; there used to be threescore weight of iron, but now it is a bag of ballast that is made fast to them.

Jones—Then, you take it for a certain rule, that those that are drowned sink, but those that are thrown overboard do not?

Clement—Yes; otherwise why should the government be at that vast charge to allow threescore or fourscore weight of iron to sink every man, but only that their swimming about should not be a discouragement to others?

Then Richard Gin was sworn.

Jones—You hear the question; pray what do you say to it?

Gin—I was at sea a great while, and all the men that I see turned overboard had a great weight at their heels to sink them.

Jones—Then will they swim otherwise?

Gin—So they say.

Jones—Are you a seaman?

Gin—I went against my will in two fights.

Jones—Then, gentlemen of the jury, I hope we have given you satisfaction that Mrs. Stout did not drown herself, but was carried into the water after she was killed. That was the first question; for if it be true that all dead bodies when they are put into the water do swim, and the bodies that go alive into the water and are drowned do sink, this is sufficient evidence that she came by her death not by drowning, but some other way. Now, my lord, as to the second matter, and that is to give such evidence as we have against these gentlemen at the bar. Mr. Cowper, it appears, was the last man that any one give an account of was in her company. What became of her afterwards, or where they went, nobody can tell; but the other witnesses have given you evidence that he was the last man that was with her. I shall only give this further evidence as to Mr. Cowper, that notwithstanding all the civility and kindnesses that passed between him and this family, when the bruit and noise of this fact was spread abroad, Mr. Cowper did not come to consider and consult with old Mrs. Stout what was to be done; but he took no manner of notice of it, and the next day he rode out of town, without further taking notice of it. Call George Aldridge and John Archer.

John Archer was sworn.

Jones—Do you know anything of Mr. Cowper's going out of town about this business of Mrs. Stout's being drowned?

Archer—Yes, I did see him go out of town afterwards.

Jones—Which way did he go?

Archer—He went the way back from the Glove; I suppose he came that way.

Cowper—What day was it I went? Is it not the way that I used to go when I go the Circuit into Essex?

Archer—Yes, I believe so.

Cowper—I lodged at Mr. Barefoot's, and he has a back-door to the Glove, where my horse was, and I went the direct way into Essex, and it was Wednesday morning: What day was it you see me go?

Archer—It was on the Wednesday morning.

Cowper—That was the very day I went into Essex.

Then George Aldridge was sworn.

Jones—When did Mr. Cowper go out of town the last assizes?

Aldridge—On Wednesday.

Jones—Which way did he go?

Aldridge—He went the way to Chelmsford.

Jones—Did you not fetch his horse from Stout's?

Aldridge—Yes, sir.

Jones—How often did you go for it?

Aldridge—Three times.

Jones—When?

Aldridge—On Tuesday night I sent once, and went twice myself; the first time there was nobody at home to deliver the horse; so I went to Mr. Stout's, and asked him about the horse, and he said he could not deliver him till the maid went home; and then I went about eleven o'clock and had the horse.

Hatsell, Baron—Was it eleven at night?

Aldridge—Yes, my lord.

Cowper—When I sent you to fetch my horse, what directions did I give you?

Aldridge—You gave me directions to fetch your horse, because you said you should have occasion to go out next morning betimes with the judge.

Cowper—The reason I sent for my horse was this; when I heard she had drowned herself, I think it concerned me in prudence to send a common hostler for him, for fear the lord of the manor should seize all that was there as forfeited.[47]

Hatsell, Baron—There was no danger of that, for she was found Non compos mentis.

Cowper—No, my lord, I sent before the verdict.

Jones—It seems you did not think fit to go and take horse there yourself, though you put your horse there.

Now, my lord, we will go on, and give the other evidence that we opened concerning these three other gentlemen that came to town; two of them took lodgings at Gurrey's at five in the afternoon, but did not come in till between eleven and twelve, and then they brought another in with them; and though he had been in town five or six hours, his feet were wet in his shoes, and his head was of a reeky sweat; he had been at some hard labour I believe, and not drinking himself into such a sweat.

Call John Gurrey, Matthew Gurrey, and Elizabeth Gurrey.

John Gurrey was sworn.

Jones—Do you know any of the gentlemen at the bar?

J. Gurrey—Yes.

Jones—Name who you know.

J. Gurrey—There is Mr. Stephens, Mr. Rogers, and Mr. Marson.

Jones—Pray do you remember when they took lodging at your house?

J. Gurrey—The last assizes; when they first came, there was only Mr. Stephens and Mr. Rogers.

Jones—At what time did they take it?

J. Gurrey—I was at church, and cannot tell that, they hired the lodgings of my wife.

Jones—What can you say more?

J. Gurrey—I was in at night when they came; there came three of them at eleven at night, whereof Mr. Marson was the third person and he said he was destitute of a lodging and he asked for a spare bed; my wife told him she had one, but had let it; whereupon Mr. Stevens and Mr. Rogers said he should lodge with them; so they went up altogether, and they called for a fire to be kindled, and asked for the landlord, which was I, and they asked me to fetch a bottle of wine, and I told them I would fetch a quart, which I did, and then they asked me to sit down and drink with them, which I did; and then they asked me if one Mrs. Sarah Stout did not live in the town, and whether she was a fortune? I said Yes. Then they said they did not know how to come to the sight of her; and I said I would shew them her to-morrow morning, not questioning but I might see her sometime as she was coming down the street; so they said they would go to see her. Mr. Rogers and Mr. Stephens charged Mr. Marson with being her old sweet-heart; saith Mr. Marson, she hath thrown me off, but a friend of mine will be even with her by this time.

Hatsell, Baron—What o'clock was it then?

J. Gurrey—I reckon eleven of the clock when they came in.

Hatsell, Baron—Did you observe in what condition Mr. Marson was in?

J. Gurrey—I did not observe, only that he was hot, and put by his wig; I see his head was wet, and he said he was just come from London, and that made him in such a heat.

Jones—Had he shoes or boots on?

J. Gurrey—I did not observe that.

Jones—What did they do the next day?

J. Gurrey—The next morning I heard this party was in the water; I sat up all night, and was fain to wait till my daughter came down to look after the shop; and then I went to see her, and she removed into the barn, and they were wiping her face, closing her eyes, and putting up her jaws; and as I came back these persons were walking, and I met Mr. Marson and Mr. Stephens, and told them the news; said I, this person has come to a sad accident: say they, so we hear; but nevertheless we will be as good as our word, and go and see her. I went with them and overtook Mr. Rogers; and Marson said we are going to see Mrs. Stout. 'O landlord!' said Rogers, 'you may take up that rogue' (pointing at Mr. Marson) 'for what he said last night'; but I did not think, they speaking so jocularly, that there was any suspicion of their being concerned in the murder. A second time I went, the barn-door was locked; I knocked, and they opened it, and let us in, and they uncovered her face to let me see her, and I touched her; and looking about for them they were gone, and I cannot say they see her or touched her: Then Mr. Marson and they were consulting how to send a great-coat to London, and I directed them to a coachman at the Bell-inn; but I did not hear he went to enquire after the coachman; then they went to your lordship's chamber, and I went home; and about eleven o'clock I saw Mr. Marson and Mr. Stephens coming down with Mr. Spencer Cowper.

Marson—I did not go out that night after I came in.

Jones—No; we agree that. Did you see Mr. Cowper and these gentlemen together?

J. Gurrey—Only at eleven o'clock on Tuesday noon, Mr. Cowper, Mr. Marson, and Mr. Stephens were coming down to the market place.

Jones—Did not they take their leave of you when they went away from you that forenoon?

J. Gurrey—No; only in the morning they told me they would send me word at noon if they intended to lodge there.

Marson—I desire to know of Mr. Gurrey, if his sister was not in the room when we came in?

J. Gurrey—She was in our house that day; but whether when they came in I cannot tell.

Cowper—Pray, have you not had some discourse with your sister, the widow Davis, concerning some suspicion that you had of Sarah Walker, that hath been produced as a witness?

J. Gurrey—I do not remember any such.

Cowper—Then did not you say these words, We must not concern ourselves with Sarah Walker, for she is the only witness against the Cowpers?

J. Gurrey—I cannot remember any such thing.

Hatsell, Baron—You may answer according to the best of what you remember; if you say you have forgot when you have not, you are forsworn.

Cowper—If your lordship pleases to give leave to Mr. Gurrey to recollect himself, I ask him, Whether he did not talk with his sister Davis about some suspicion his wife and he had about Sarah Walker, the maid-servant of the deceased?

J. Gurrey—I believe there might be some talk of a person that was seen to go into the churchyard at some distance with Sarah Walker.

Cowper—Did your wife say that she did suspect that person?

J. Gurrey—Yes.

Cowper—Did your wife say they behaved themselves strangely, and that she would have persuaded the widow Blewit to have watched her?

J. Gurrey—There was something of that.

Cowper—Was there not some such words, that they must not meddle with Sarah Walker, for she is the witness against the Cowpers?

J. Gurrey—I said, Do not concern yourself with Sarah Walker, for fear of taking off her evidence.

Cowper—Pray did not the widow Davis warm the sheets for these gentlemen?

J. Gurrey—She was with my wife, but I cannot say whether she warmed the sheets.

Cowper—When they came home, had you any lodgers that wanted to come home? Had not you one Gape?

J. Gurrey—I cannot say whether he was in before or after them.

Cowper—Did not you say to your sister Davis, Now these gentlemen are in bed, if Mr. Gape would come home, our family would be quiet?

J. Gurrey—I do not remember that.

Cowper—Pray, did not you go to look for Mr. Gape?

J. Gurrey—Yes, I went to Hockley's.

Cowper—Who did you employ to speak to Mr. Gape?

J. Gurrey—Mrs. Hockley.

Cowper—When you came home to your own house, and after you had been at Hockley's to speak with Mr. Gape, what account did you give of the time of night, and other particulars?

J. Gurrey—I gave no account of the time.

Cowper—Not to Mrs. Davis?

J. Gurrey—I cannot tell whether I did or no.

Cowper—Did not you say, Mr. Gape asked Mrs. Hockley what a-clock it was?

J. Gurrey—No, I do not remember that; but Mrs. Hockley went in, and told him what time of night it was; it was eleven or twelve of the clock, which I cannot say.

Jones—Call Martha Gurrey. (Who was sworn.) Which of these gentlemen do you know?

Mrs. Gurrey—Mr. Marson, Mr. Rogers, and Mr. Stephens.

Jones—What time of the night was it when they came to your house? give an account of it, and what you heard them say.

Mrs. Gurrey—It was a little after five, or thereabouts that they came.

Jones—Who came?

Mrs. Gurrey—Mr. Stephens, and Mr. Rogers, and there was one Mr. Gilbert, that married a first cousin of mine; he came and asked me for my husband; and I asked him his business, and he said he wanted to speak to him.

Jones—Pray come to these men; when did they come to your house?

Mrs. Gurrey—They hired the lodging at five of the clock. When they first came to see them I was not at home; Mr. Gilbert brought them, and as I was coming along the street I saw Mr. Gilbert walking off, and would not look at me.

Jones—When did they go out?

Mrs. Gurrey—They never staid there.

Jones—When did they come in again?

Mrs. Gurrey—Between eleven and twelve.

Hatsell, Baron—What did they do when they came again?

Mrs. Gurrey—I was laying on some sheets two pairs of stairs when they came, and then there was three of them; so they saw me a little after, and begged my excuse for bringing in another, for they said it was so late that they could not get a lodging any where else: and said, if I thought fit, the gentleman should lie with them: And I told them I liked it very well.

Jones—What firing had they?

Mrs. Gurrey—The firing I laid on in the morning, and they sent for my husband to fetch them some wine.

Jones—What did you hear them talk on?

Mrs. Gurrey—They discoursed with my husband, and asked him if he knew Mrs. Sarah Stout; and one of them said to Mr. Marson, I think she was an old sweetheart of yours; Ay, said he, but she turned me off, but a friend of mine is even with her: And Mr. Rogers said he was in with her; and afterwards said, her business was done. They had a bundle, that was wrapt up in pure white cloth, like to an apron, but I cannot say it was an apron; and there was a parcel hanging loose by it; and when he laid it down he said, he would pass his word Mrs. Sarah Stout's courting days were over; and I said, I hoped it was no hurt to the gentlewoman; and then I looking upon Mr. Marson, saw him put his peruke aside, and his head reeked, and he told them he was but just come from London that night, which made him disappointed of a lodging.

Jones—What did you hear them say about any money?

Mrs. Gurrey—I asked them how they would have their bed warmed? And Mr. Marson answered, very hot: With that I went down to send my daughter up, and she could not go presently; I told her then she must go as soon as she could.

Hatsell, Baron—Pray, do not tell us what passed between you and your daughter: What do you know of these gentlemen?

Mrs. Gurrey—I went to the next room, to see if every thing was as it should be; I hearkened, and they had some discourse about money, and I heard somebody (I do not know who it should be except it were Mr. Stephens) answer and say, the use money was paid to-night; but what money they meant I cannot tell.

Jones—What did you find when they were gone?

Mrs. Gurrey—Sir, I found a cord at the end of the trunk.

Jones—Was it there in the morning, or before they came?

Mrs. Gurrey—No, it could not have been, for I swept my room, and wiped down the dust.

Jones—Was the cord white?

Mrs. Gurrey—No, it was more dirty than it is now, for my husband and I have worn it in our pockets.

Cowper—Pray, who brought the cord down from above stairs?

Mrs. Gurrey—My daughter that lived with me, and she laid it upon the shelf.

Cowper—Did not you hear there was a coroner's inquest sitting?

Mrs. Gurrey—The next day at night I did hear of it.

Cowper—Why did not you go to the coroner's inquest and give an account of it there?

Mrs. Gurrey—I told my husband of it, and I asked my husband if he did not hear what they said concerning Mrs. Sarah Stout? And he answered, yes, they ought to be taken up for the words they said last night: Why, saith I, do not you take notice of it? I think you ought to take them up. But he went out of doors, and I saw no more of him till the afternoon. When I heard the words, I thought somebody had stole away and got to bed to her.

Cowper—Pray, if your husband heard these words, why did not he go to the coroner's inquest?

Mrs. Gurrey—I did speak to him to have them taken up.

Cowper—Why did he not do it?

Mrs. Gurrey—He said he would not do it, he did not know but it might cost him his life.

Jones—How came you after this to discover it?

Mrs. Gurrey—Because I was so troubled in mind I could not rest night nor day; and I told him if he would not tell of it, I would tell of it myself, for I was not able to live.

Elizabeth Gurrey was sworn.

Jones—Pray, do you know Mr. Rogers, Mr. Stephens, and Mr. Marson?

E. Gurrey—I know Mr. Marson, and these are the other gentlemen, I reckon.

Jones—What discourse did you hear from them?

E. Gurrey—Mr. Marson asked the other gentlemen how much money they had spent? the other answered, what was that to him? you have had forty or fifty pounds to your share. Then the other asked him, whether the business was done? And he answered, he believed it was; but if it was not done, it would be done to-night. Then, my lord, he pulled a handful of money out of his pocket, and swore he would spend it all for joy the business was done.

Jones—Was Mr. Cowper's name mentioned?

E. Gurrey—I heard them mention Mr. Cowper's name, but not Mrs. Sarah Stout's.

Jones—What condition was the gentleman's shoes in?

E. Gurrey—I think it was Mr. Marson, his shoes were very wet and dirty; one of them was very hot, and he wiped his head with his handkerchief.

Jones—Now, my lord, we have done as to our evidence. Mr. Marson pretended he was just then alighted and come from London, and was in a great heat, and his shoes were wet: for when he was examined, he said, he came to town about eight of the clock, and went to the Glove and Dolphin inn, and stayed there till he came to his lodging. Now it was a wonderful thing that he should come wet shod from a tavern, where he had been sitting four or five hours together.

Then the Examination of Mr. John Marson was read:

The Examination of John Marson, taken before me, this 27th day of April, 1692.

'Who being examined where he was on Monday the 13th of March last, saith, That he was at the borough of Southwark (he being an attorney of the said court) till past 4 of the clock in the afternoon; and saith, that he set out from Southwark for Hertford soon after, and came to Hertford about eight the same afternoon, and put up his horse at the sign of , an inn there, and then went to the Hand and Glove, together with Godfrey Gimbart, esq., Ellis Stephens, William Rogers, and some others, where they stayed till about eleven of the clock at night, and then this examinant went thence directly to the house of John Gurrey, with the said Stephens and Rogers, who lay together in the said Gurrey's house all that night. And being asked what he said concerning the said Mrs. Sarah Stout, deceased, this examinant saith, that on Sunday the 12th of March last, this examinant being in company with one Thomas Marshall, and telling him that this examinant intended the next day for Hertford, with the marshal of the King's Bench, the said Thomas Marshall desired this examinant and the said Stephens, who was then also in company, that they would go and see the said Sarah Stout (his sweetheart). He confesseth, that he did ask the said Gurrey, if he would shew this examinant where the said Stout lived; telling the said Gurrey that his name was Marshall, and asked him if he never heard of him before; and jocularly said, that he would go and see her the next morning, but doth not believe that he said any thing that any friend was even with the said Sarah Stout, or to such like effect. And doth confess, that he did the next day, upon the said Gurrey's telling him that the said Stout was drowned, say, that he would keep his word, and would see her. And saith, that meeting with Mr. Cowper (who is this examinant's acquaintance) he believes he did talk with him concerning the said Stout's being drowned, this examinant having seen her body that morning.

John Marson.

'Cogn. Die et Anno antedict.

Coram J. Holt.'

Jones—All that I observe from it, is this: That he had been five hours in town, and when he came to his lodging, he came in wet and hot, and said he was just come from London.

Marson—I had rid forty miles that day, and could not be soon cold.

Hatsell, Baron—They have done now for the king; come, Mr. Cowper, what do you say to it?

Jones—If your lordship please, we will call one witness more, Mary Richardson. Mrs. Richardson, do you know Mr. Marson, or any of these gentlemen?

Mrs. Richardson—They came on Tuesday night to the Bell at Hoddesdon, and lay there, and one of the gentlemen, when I was warming the sheets, asked me if I knew Mrs. Sarah Stout? And I said Yes. He asked me if I knew which way she came to her end? And I told him I could not tell.

Jones—Is that all? What did they say more?

Mrs. Richardson—They did desire and wish it might be found out how it came about; and one gentleman took no notice of her at all. They had a little bundle, but what was in it I cannot tell, but there I saw it bound up in some coloured stuff or other, but what it was I cannot tell.

Jones—Is that all you can say?

Mrs. Richardson—Yes, that is all.

Jones—Then we have done.

Hatsell, Baron—Come, Mr. Cowper, what do you say to it?

Cowper—Now they have done on the part of the king, my lord, and you gentlemen of the jury, I must beg your patience for my defence. I confess it was an unfortunate accident for me (as Mr. Jones calls it) that I happened to be the last person (for aught appears) in the company of a melancholy woman. The discourse occasioned by this accident had been a sufficient misfortune to me, without any thing else to aggravate it; but I did not in the least imagine that so little, so trivial an evidence as here is, could possibly have affected me to so great a degree, as to bring me to this place to answer for the worst fact that the worst of men can be guilty of.

My lord, your lordship did just now observe, that I have appeared at the bar for my clients; but I must say too, that I never appeared for myself under this, or the like circumstances, as a criminal, for any offence whatsoever.

He then goes on to point out that there is no positive evidence against him, but only suppositions and inferences—what to-day would be called circumstantial evidence; and that even admitting the evidence of the prosecution, it is as strong to show that the deceased woman was not murdered as that she was. Even if the evidence proved that Mrs. Stout was murdered, there was nothing to show that he or his fellow-prisoners were guilty of the murder. The body was not floating when it was found, as could be shown by the parish officers who were employed by the coroner to take it out of the water. It in fact had sunk, and had then been carried by the force of the stream sideways up the stakes which were about a foot apart pointing down stream; and yet the alleged fact that the body was floating was the only evidence produced to prove that the woman was not drowned. Evidence would be given to prove that the fact that the body contained little or no water was immaterial, for drowning takes place when only a very little water is received into the lungs; and in a case of suicide it is probable that water would enter the lungs sooner than it would in cases of accident. As to the evidence derived from the examination of the body after exhumation, it ought not to have been given, as the exhumation was itself an offence; 'but as it is I have no reason to apprehend it, being able to make it appear that the gentlemen who spoke to this point have delivered themselves in that manner either out of extreme malice, or a most profound ignorance; this will be so very plain upon my evidence, that I must take the liberty to impute one or both of these causes to the gentlemen that have argued from their observations upon that matter.'

It had been suggested that he had an interest in the death of the deceased by reason of holding money of hers which he had received as her trustee or guardian. He had been concerned in investing some £200 in a mortgage for the deceased the previous December; he had paid over this money to the mortgagees, and the mortgage had been found by the prosecutors among the papers of the deceased after her death. This was the only money transaction he had ever had with her. The prosecution had proved that there was no concealment of shame to induce him to murder her; and that, though they had no inclination to favour him.

He would produce evidence to show that the dead woman committed suicide, though he only did so most unwillingly and under compulsion. The prosecution had shown that she was melancholy, and he could show that she had reason for making away with herself. This he would do by producing letters of hers, which were he alone concerned he would not allude to; but as he was in honour bound to make the best defence he could for his fellow-prisoners, he had no choice in the matter.

The maid Walker was the only person who gave any direct evidence against him, and she said that she heard the door shut at a quarter past eleven, and that on going downstairs directly afterwards she found that both he and the deceased had left the house. But he would prove that he had entered the Glove Inn as the town clock struck eleven, that he had stayed there a quarter of an hour, that after he had done several things at his lodgings he had gone to bed by twelve, and had not gone out again that night. He had sent to fetch his horse from Mrs. Stout's house on Tuesday morning, as was only prudent, but he had told the man whom he sent that he would not want it till the next day, when he was going into Essex with the rest of the circuit, which he did.

He had not heard that his name was connected with Mrs. Stout's death till two months after the event; and the prosecution had in fact been set on foot by the Quakers, who were scandalised at the idea of one of their number committing suicide, and the political opponents of his father and brother in the town.

Cowper went on to explain that he always had the offer of a share in his brother's lodgings, which were some of the best in the town, whenever the latter went circuit, 'which out of good husbandry I always accepted.' At the time of the last circuit, when the present case arose, Parliament was sitting, and his brother 'being in the money chair,' could not attend. As Cowper had been invited to lodge with Mrs. Stout during the assizes and wished to accept the invitation, he asked his brother to ask Barefoot, the keeper of his lodgings, to dispose of them if he could. The brother said he would do so 'if he could think on it,' and accordingly Cowper went down to Hertford intending to lodge with Mrs. Stout unless his brother had failed to write to Barefoot. On arriving at Hertford he found that his brother had not written to Barefoot, and that the rooms there were ready for him. He accordingly stayed there, sent to the coffee-house for his bag, and took up his lodging at Barefoot's as usual. As soon as he had done this, the maid Walker came round from Mrs. Stout's to invite him to dinner there. He accepted the invitation, and also a further invitation to come again in the evening; but he did not agree to sleep there. When he came the second time he paid the deceased the interest on her mortgage, some six pounds odd, in guineas and half-guineas, which money was found in her pocket after she was drowned. He wrote a receipt for the money, which she refused to sign; she pressed him to stay there that night, which he refused to do.

He then went on:—

'My lord, I open my defence shortly, referring the particulars to the witnesses themselves, in calling those who will fully refute the suppositions and inferences made by the prosecutor, whom first, my lord, I shall begin with, to show there is no evidence of any murder at all committed; and this I say again, ought to be indisputably made manifest and proved, before any man can be so much as suspected for it.

Hatsell, Baron—Do not flourish too much, Mr. Cowper; if you have opened all your evidence, call your witnesses, and when they have ended, then make your observations.

Mr. Cowper—Then, my lord, I will take up no more of your time in opening this matter. Call Robert Dew. (Who appeared.) When Mrs. Sarah Stout drowned herself, was not you a parish officer?

Dew—I was. I was next house to the Coach and Horses; and about six o'clock came a little boy (Thomas Parker's boy), and said there was a woman fallen into the river. I considered it was not my business, but the coroner's, and I sent the boy to the coroner, to acquaint him with it, and the coroner sent word by the boy, and desired she might be taken out; so I went to the river, and saw her taken out: she lay in the river (as near as I could guess) half a foot in the water; she was covered with water; she had a striped petticoat on, but nothing could be seen of it above water. I heaved her up, and several sticks were underneath her, and flags; and when they took her out, she frothed at the nose and mouth.

Cowper—How was she? Was she driven between the stakes?

Dew—She lay on the right side, her head leaning rather downwards: and as they pulled her up, I cried, 'Hold, hold, hold, you hurt her arm'; and so they kneeled down and took her arm from the stakes.

Cowper—Did you see any spot upon her arm?

Dew—Yes, sir.

Cowper—What sort of spot was it?

Dew—It was reddish; I believe the stakes did it; for her arm hit upon the stake where she lay.

Cowper—Pray, how do these stakes stand about the bridge of the mill?

Dew—I suppose they stand about a foot asunder; they stand slanting, leaning down the stream a little.

Cowper—Could you discern her feet?

Dew—No, nothing like it, nor the striped petticoat she had on.

Cowper—Might not her knees and legs be upon the ground, for what you could see?

Dew—Truly, if I were put upon my oath whether they were so, or not, I durst not swear it; sometimes the water there is four feet, sometimes three and a-half; I believe her feet were very near the bottom.

Cowper—Are not the stakes nailed with their head against the bridge?

Dew—They are nailed to the side of the bridge.

Cowper—Pray, describe the manner in which they took her up.

Dew—They stooped down, and took her up.

Cowper—Did they take her up at once?

Dew—They had two heavings, or more.

Cowper—What was the reason they did not take her up at once?

Dew—Because I cried out, 'They hurt her arm.'

Cowper—Was she not within the stakes?

Dew—No, this shoulder kept her out.

Cowper—When you complained they hurt her arm, what answer did they make you?

Dew—They stooped down and took her arm out from between the stakes; they could not have got her out else.

Cowper—After she was taken out, did you observe any froth or foam come from her mouth or nose?

Dew—There was a white froth came from her, and as they wiped it away, it was on again presently.

Cowper—What was the appearance of her face and upper parts at that time?

Dew—She was so much disfigured, I believe that scarce any of her neighbours knew her, the slime of the water being upon her.

Cowper—Did you see her maid Sarah Walker at that time?

Dew—No.

Hatsell, Baron—Mr. Cowper, do you intend to spend so much time with every witness? I do not see to what purpose many of these questions are asked.

Cowper—I have done with him: call Young.

Hatsell, Baron—Mr. Cowper, I would not have you straiten yourself, but only ask those questions that are pertinent.

Cowper—Pray, give an account of what you know of the matter.

Young—On Tuesday morning between five and six o'clock, last assizes——

Cowper—What officer did you say?

Young—I was constable.

Cowper—Was you employed by the coroner?

Young—Not by him in person. Between five and six o'clock some of the men that came into my yard to work, told me a woman was drowned at the mill; I staid a little and went down to see, and when I came there, I saw a woman, as they had told me, and I saw part of her coat lie on the top of the water to be seen, and I looked strictly and nicely within the bridge and saw the face of a woman, and her left arm was on the outside the stakes, which I believe kept her from going through; so I looked upon her very wishfully, and was going back again; and as I came back I met with R. Dew and two of my neighbours, and they asked me to go back with them, and said they were going to take her up; and being constable, I told them I thought it was not proper to do it, and they said they had orders for it; so I being constable went back with them, and when I came there I found her in the same posture as before; we viewed her very wishfully; her coat that was driven near the stakes was seen, but none of her coats, or her legs; and after we had looked a little while upon her, we spake to Dell and Ulse to take her up, and one of them took hold of her coat till he brought her above water; and as her arm drew up, I saw a black place, and she laid sideway, that he could not take her up till they had let her down again, and so they twisted her out sideway; for the stakes were so near together that she could not lie upon her belly, or upon her back; and when they had taken her up, they laid her down upon a green place, and after she was laid down, a great quantity of froth (like the froth of new beer) worked out of her nostrils.

Hatsell, Baron—How much do you call a great quantity?

Young—It rose up in bladders, and run down on the sides of her face, and so rose again; and seeing her look like a gentlewoman, we desired one Ulse to search her pockets, to see if there were any letters, that we might know who she was; so the woman did, and I believe there was twenty or more of us that knew her very well when she was alive, and not one of us knew her then; and the woman searched her pockets, and took out six guineas, ten shillings, three pence halfpenny, and some other things; and after that I desired some of my neighbours to go with me and tell the money; for when it came to be known who she was, I knew we must give an account on it, and I laid it upon a block and told it, and they tyed it up in a handkerchief, and I said I would keep the money, and they should seal it up to prevent any question about it; and during all this while of discourse, and sealing up the money, the froth still worked out of her mouth.

Cowper—Have you measured the depth of the water? What depth is it there?

Young—I measured the water this morning, and it was so high that it ran over the floodgate, and the height of it was about four foot two inches; but sometimes it is pent up to a greater height than it is to-day.

Cowper—Was it higher to-day than when the body was found?

Young—To the best of my remembrance, it was as high to-day as it was then.

Cowper—Was any part of the body above water?

Young—No, nor nothing like the body could be seen.

Cowper—Could you see where her legs lay?

Young—No, nor nothing but her upper coats, which were driven against the stakes.

Cowper—Pray give an account how long she lay there, and when she was conveyed away?

Young—I stayed a quarter of an hour, and then I went and sealed up the money at my own house, so that I did not see her removed.

Jones—Was anybody there besides yourself at this time?

Young—Yes; twenty people at the least.

Jones—Now here is ten of them that have sworn that the body was above the surface of the water.

Hatsell, Baron—No, her cloaths, they say, were, but the body was something under the water.

Cowper—Now I will trouble your lordship no more with that fact, but I will give you an account of the coroner's inquest, how diligent they were in their proceedings, and produce a copy of the inquisition itself, that she was found to have drowned herself.

Hatsell, Baron—Mr. Cowper, that is no evidence if it be produced in order to contradict what these witnesses have said, that have been examined for the king; but if you will prove that they have sworn otherwise before the coroner than they now do, then you say something, otherwise the coroner's inquest signifies nothing as to the present question.

Cowper—Call Thomas Wall. I am loth to be troublesome; but, if you please to favour me, I desire to know of them whether they do admit there was an inquisition, and that she was found non compos mentis and did kill herself.

Jones—We do admit it.

Juryman—We desire it may be read.

Hatsell, Baron—Why, will not you believe what they agree to on both sides?

Juryman—If they do agree so, I am satisfied.

Wall was one of the coroner's jury, and saw the marks on the body which he described; Mr. Camlin and the younger Dimsdale were requested to examine them, which they did, and reported that they were no more than were usual in such cases. Wall refreshed his memory from his notes, and said that Sarah Walker had said that it was about eleven when she had taken the coals up to warm Cowper's bed, but she could not say when it was that Cowper went out, for she took up some more coals, and then tarried a little, and then went down and found that Cowper and her mistress had gone out.

Hatsell, Baron—The woman said the same thing.

Cowper—It is necessary in this particular as to time.

Hatsell, Baron—She told you the clocks did differ.

Bowden and Shute gave evidence as to the finding of the body and as to its state when found, corroborating the other witnesses.

Cowper—My lord, I am very tender how I take up your lordship's time, and therefore I will not trouble you with any more witnesses on this head; but with your lordship's leave I will proceed to call some physicians of note and eminence, to confront the learning of the gentlemen on the other side.

Dr. Sloane[48] said he had not heard the other witnesses very distinctly, because of the crowd; but that cases of the present kind were very uncommon, and that none of them had fallen under his own knowledge. It was plain that a great quantity of water might be swallowed without suffocation;

drunkards, who swallow freely a great deal of liquor, and those who are forced by the civil law to drink a great quantity of water, which in giving the question (as it is called) is poured into them by way of torture to make them confess crimes,[49] have no suffocation or drowning happen to them.

But on the other hand, when any quantity comes into the windpipe, so it does hinder or intercept the inspiration, or coming in of the air, which is necessary for the respiration, or breathing, the person is suffocated. Such a small quantity will do, as sometimes in prescriptions, when people have been very weak, or forced to take medicines, I have observed some spoonfuls in that condition (if it went the wrong way) to have choaked or suffocated the person.

He took drowning to be when water got into the windpipe or lungs, and believed that whether a person fell into the water alive or dead, some quantity would find its way there. He inclined to believe that the general condition of the body was consistent with the woman having been drowned.

Dr. Garth gave reasons for disagreeing with the doctors called for the prosecution in considering that the general state of the body proved that the woman had not been drowned, pointing out that it was as unnatural for a human body to float on its side, as for a shilling to rest on its edge, or for a deal board to float edgewise rather than otherwise. In spite of what had been said about the seamen, he believed that dead bodies would generally sink.

Hatsell, Baron—But you do not observe my question; the seamen said that those that die at sea and are thrown overboard, if you do not tye a weight to them, they will not sink; what say you to that?

Dr. Garth—My lord, no doubt in this they are mistaken. The seamen are a superstitious people, they fancy that whistling at sea will occasion a tempest. I must confess I have never seen anybody thrown overboard, but I have tried some experiments on other dead animals, and they will certainly sink; we have tried this since we came here hither. Now, my lord, I think we have reason to suspect the seaman's evidence; for he saith that three-score pound of iron is allowed to sink the dead bodies, whereas six or seven pounds would do as well. I cannot think the commissioners of the navy guilty of so ill husbandry; but the design of tying weights to their bodies, is to prevent their floating at all, which otherwise would happen in some few days; therefore what I say is this, that if these gentlemen had found a cord, or the print of it, about the neck of this unfortunate gentlewoman, or any wound that had occasioned her death, they might then have said something.

Dr. Morley was called, and supported the view that a drowned body need not necessarily have much water in it, and that it need not float. He had tried experiments on two dogs the night before; he drowned them both, and dissecting one found no water in its stomach, while the other sank to the bottom of the water.

Dr. Woollaston and Dr. Gelstrop both gave evidence to the same effect as the preceding witnesses.

Cowper—Now, my lord, I would call Mr. William Cowper; and because of his name, I must acquaint your lordship that he is not at all acquainted with me, though I should be proud to own him if he were so; he is a man of great learning, and I believe, most people admit him to be the best anatomist in Europe. Mr. Cowper, will you give your opinion of this matter?

Mr. W. Cowper[50] accordingly, premising that he would not only 'speak, from reason,' but give an account of experiments, stated that the symptoms described were consistent with drowning;

this is a truth that no man can deny who is acquainted with any thing of this nature, that when the head of an animal is under water, the first time it is obliged to inspire (or draw in air) the water will necessarily flow into its lungs, as the air would do if it were out of the water; which quantity of water (if the dimensions of the windpipe and its branches in the lungs be considered), will not amount to three inches square, which is about three ounces of water.

And this quantity of water would be sufficient to cause suffocation, and after suffocation, swallowing would become impossible. This he said, not by way of conjecture or hypothesis, but as the result of experiment.

I shall by the bye, tell you how fallacious the first experiment was, when I proposed to satisfy myself whether a dead body would float in water. It happened that a spaniel, that had a great deal of long hair was hanged for this purpose, which I found to float on the surface of the water; but when I considered that his hair might buoy him up, I caused another dog, which had shorter and less hair, to be hanged and put into the water, which (according to what I had always conceived of the human body) sunk directly to the bottom. In order to satisfy myself what quantity of water was necessary to enter the body of an animal, and cause suffocation in water, I caused three dogs, when alive, to be suddenly plunged under water till they were stifled; the result was that about three ounces of water were found in their lungs, and none in their stomachs. Dead bodies generally sank; weights were attached to dead bodies, not so much to make them sink at the time, as to prevent them floating afterwards.

Cowper—With your lordship's favour, I now think it a proper time to make this observation. The witnesses that have given evidence for the king do say they believe she was not drowned; but they have not pretended to say how she died otherwise.

Hatsell, Baron—That is very true.

Dr. Crell was generally of the same opinion as that expressed by the last witness, and, in spite of the suggestion of the judge that he should confine his evidence to matters within his own experience, quoted the opinion of Ambrose Parey ('who was chief surgeon to Francis the 1st, employed by him in most of his sieges and battles against emperor Charles the 5th, and consequently must observe, and could not be ignorant of such like casualties in such great bodies of men'), as expressed in his chapter of Renunciations, to the effect that the certain sign of a man being drowned was an appearance of froth about his nostrils and mouth. Altogether his firm opinion was that the woman was drowned.

Mr. Harriot, who had been a surgeon in the Fleet; and Bartlet, who had been in several naval engagements, both swore that dead bodies when thrown overboard sank at first, though they floated again afterwards.

Mr. Camlin was called at the coroner's inquest, and examined the body. He found certain marks on the head and breast which Mr. Dimsdale said were only the result of drowning; he had seen more decided marks on the body of the child that was drowned. He saw no indications that Mrs. Stout had been strangled.

Bowd—It was much about this time twelvemonth I had some business in London; and she [Mrs. Stout] sent to me, to know when I should go to London; and I waited upon her before I went, and she desired me to do some business for her; and when I returned, I acquainted her with what I had done; and sitting together in the hall, I asked her, what is the matter with you? Said I, there is something more than ordinary; you seem to be melancholy. Saith she, you are come from London, and you have heard something or other: said I, I believe you are in love. In love! said she. Yes, said I, Cupid, that little boy, hath struck you home: she took me by the hand; Truly, said she, I must confess it; but I did think I should never be guilty of such a folly: and I answered again, I admire that should make you uneasy; if the person be not of that fortune as you are, you may, if you love him, make him happy and yourself easy. That cannot be, saith she: the world shall not say I change my religion for a husband. And some time after I had been in London, having bought some India goods, she came to my shop and bought some of me for a gown, and afterwards she came to pay me for it; and I asked her, How do you like it? have you made it up? No, said she, and I believe I shall never live to wear it.

Cowper—Pray how long is it since?

Bowd—It was about February or January before her death. I asked her, why she did not come to my house oftener She said, she had left off all company, and applied herself to reading; and company was indifferent to her.

Several other witnesses were then called to prove that they had recently seen the deceased woman in a state of melancholy, and that she had admitted that she was in love, though she would not say with whom.

Cowper—Mrs. Cowper, what do you know of Mrs. Stout's melancholy?

Cowper—My lord, this is my brother's wife.

Mrs. Cowper—About spring was twelve month, she came to London, and I believe it was not less than once or twice a week I saw her; and I never had an opportunity to be an hour alone with her at any time, but I perceived something in her melancholy. I have asked her the reason of it several times, and sometimes she seemed to dislike her profession, being a Quaker; and sometimes she would say, that she was uneasy at something that lay upon her spirits, which she should never outlive; and that she should never be well while she was in this world. Sometimes I have endeavoured to persuade her out of it seriously, and sometimes by raillery, and have said are you sure you shall be better in another world? And particularly I remember I have said to her, I believe you have Mr. Marshall in your head: either have him, or do not trouble yourself about him; make yourself easy either one way or another; and she hath said no, in an indifferent way, I cannot make myself easy: Then I have said, marry him: no, saith she, I cannot. Sometimes with company she would be diverted, and had frequently a way of throwing her hands, and shewed great disturbance and uneasiness. This time twelvemonth, at the summer assizes, I was here six days, and I saw her every day; and one time, among other discourse, she told me she had received great disturbance from one Theophilus, a waterman and a Quaker, who coming down to old Mrs. Stout, that was then lame, she had gathered about 20 or 30 people together to hear him preach; and she said he directed his discourse to her, and exasperated her at the rate that she had thoughts of seeing nobody again, and said, she took it heinously ill to be so used, and particularly, that he had told her that her mother's falling outwardly in the flesh should be a warning that she did not fall inwardly; and such 'canting stuff,' as she called it; and she said, that Theophilus had so used her, that she was ashamed to show her head. Another time, the same week, she had a fever, and she said, she was in great hopes it would end her days, and that she neglected herself in doing those things that were necessary for her health, in hopes it would carry her off, and often wished herself dead. Another time, which I think was the last time I saw her, it was at my sister's lodgings, and I sent for her to drink a dish of tea with us, and she came in a great toss and melancholy: Said I, what is the matter? you are always in this humour. Saith she, I cannot help it, I shall never be otherwise. Saith my sister, for God's sake keep such thoughts out of your head as you have had, do not talk any more of throwing yourself out of window: Saith she, I may thank God that ever I saw your face, otherwise I had done it, but I cannot promise I shall not do it.

Hatsell, Baron—What is your name, madam?

Cowper—It is my brother's wife, my lord. I desire Mrs. Toller may give an account of what she knows as to her being melancholy.

Mrs. Toller—My lord, she was once to see me, and she looked very melancholy, and I asked her what was the matter? and she said, something had vexed her that day; and I asked her the cause of it, and she stopped a little while, and then said, she would drown herself out of the way.

Hatsell, Baron—How long ago was this?

Mrs. Toller—About three quarters of a year ago.

John Stout—I desire to know whether she has always said so, or not told another story.

Mrs. Toller—I told you no story; it may be I did not say so much to you, but I said she talked something of drowning. I have been with her when Mr. Cowper's conversation and name has been mentioned, and she said she kept but little company; that sometimes she went to Mrs. Low's, and that she kept none but civil modest company, and that Mr. Cowper was a civil modest gentleman, and that she had nothing to say against him.

Cowper—This is Mrs. Eliz. Toller, my lord.

Elizabeth Toller—My lord, she came to see me some time after Christmas, and seemed not so cheerful as she used to be; said I, what is the matter? Why are you not so merry as you used to be? Why do you not come often to see me? Saith she, I do not think to go abroad so much as I used to do, and said, it would be as much a rarity to see her go abroad, as to see the sun shine by night.

Cowper—Mrs. Grub, what do you know concerning Mrs. Stout's pulling out a letter at her brother, Mr. John Stout's? Give an account of it, and what she said upon that occasion.

Mrs. Grub—I have a daughter that lives at Guernsey, and she sent me a letter, and I prayed Mrs. Sarah Stout to read the letter; and while she was reading it I cried; saith she, why do you cry? said I, because my child is so far off. Said she, if I live till winter is over, I will go over the sea as far as I can from the land.

Hatsell, Baron—What was the occasion of her saying so?

Mrs. Grub—I was washing my master's study, Mrs. Sarah Stout came in, and I had a letter from my daughter at Guernsey, and I prayed Mrs. Sarah Stout to read it, and she read my letter, and I cried, and she asked me, why I cryed? Said I, because my child is so far off: Saith she, if I live to winter, or till winter is over, I will go over sea as far as I can from the land.

Cowper—Now, my lord, to bring this matter of melancholy to the point of time, I will call one witness more, who will speak of a remarkable instance that happened on Saturday before the Monday when she did destroy herself.

Call Mr. Joseph Taylor. Pray will you inform the court and jury of what you observed on Saturday before the Monday on which Mrs. Stout destroyed herself.

Joseph Taylor—I happened to go in at Mr. Firmin's shop, and there she sat the Saturday before this accident happened, the former assizes, and I was saying to her, Madam, I think you look strangely discontented; I never saw you dressed so in my life: Saith she, the dress will serve me as long as I shall have occasion for a dress.

Cowper—In what posture did she appear in the shop?

Joseph Taylor—She appeared to be very melancholy.

Cowper—What part of her dress did you find fault with?

Joseph Taylor—It was her head cloaths.

Cowper—What was the matter with them?

Joseph Taylor—I thought her head was dawbed with some kind of grease or charcoal.

Cowper—What answer did she make?

Joseph Taylor—She said, they would serve her time.

Cowper—As to this piece of evidence, if your lordship pleases, I desire it may be particularly taken notice of; it was her head-dress that she said would serve her time.

Pray, Mr. Taylor, was you at Mr. Barefoot's when I came there on Monday morning?

Joseph Taylor—Yes; I went up stairs with you into your chamber.

Cowper—Pray, what did I say to Mr. Barefoot?

Joseph Taylor—You asked him if they had received a letter from your brother, and he said, No, not that he knew of, but he would call his wife, and he did call his wife, and asked her if she had received a letter, and she said, No; then said you, I will take up this lodging for mine; and accordingly you went up stairs, and I went with you, and staid there about four times as long as I have been here.

Cowper—Are you very sure that I said, I would take up my lodgings there?

Joseph Taylor—Yes, I am very sure of it.

Hatsell, Baron—What time of the day was it?

Joseph Taylor—It was the fore part of the day; while I was there, my lord, Mrs. Sarah Stout's maid came to invite Mr. Cowper to her house to dinner.

Cowper—Did you know anything of my sending to the coffee-house?

Joseph Taylor—You sent to the coffee-house for your things.

Hatsell, Baron—Did Mr. Cowper use to lie at Mrs. Barefoot's?

Joseph Taylor—His brother did, but I do not know whether this gentleman did, but at that time he took up that place for his lodging; and said, it was all one, my brother must pay for it, and therefore I will take it up for myself.

Cowper—Call Mrs. Barefoot and her maid.

[But they not presently appearing,]

Cowper—My lord, in the meantime I will go on to the other part of my evidence, in opening of which I shall be very short.

My lord, my wife lodging at Hertford, occasioned me frequently to come down. Mrs. Stout became acquainted with her; When business was over in the long vacation, I resided pretty much at Hertford, and Mr. Marshall came down to pay me a visit, and this introduced his knowledge of Mrs. Stout. When she was first acquainted with him she received him with a great deal of civility and kindness, which induced him to make his addresses to her, as he did, by way of courtship. It happened one evening that she and one Mrs. Crook, Mr. Marshall and myself, were walking together, and Mr. Marshall and Mrs. Crook going some little way before us, she took this opportunity to speak to me in such terms, I must confess, as surprized me. Says she, Mr. Cowper, I did not think you had been so dull. I was inquisitive to know in what my dulness did consist. Why, says she, do you imagine I intend to marry Mr. Marshall? I said I thought she did, and that if she did not, she was much to blame in what she had done: No, says she, I thought it might serve to divert the censure of the world, and favour our acquaintance. My lord, I have some original letters under her own hand which will make this fully manifest; I will produce the letters after I have called Mr. Marshall. Mr. Marshall.

Mr. Marshall—If your lordship pleases, it was in the long vacation I came down to spend a little of my leisure time at Hertford; the reason of my going thither was, because Mr. Cowper was there at that time. The first night when I came down I found Mrs. Sarah Stout visiting at Mr. Cowper's lodgings and there I first came acquainted with her; and she afterwards gave me frequent opportunities of improving that acquaintance; and by the manner of my reception by her, I had no reason to suspect the use it seems I was designed for. When I came to town, my lord, I was generally told of my courting Mrs. Stout, which I confess was not then in my head; but it being represented to me as a thing easy to be got over, and believing the report of the world as to her fortune, I did afterwards make my application to her; but upon very little trial of that sort, I received a very fair denial, and there ended my suit; Mr. Cowper having been so friendly to me, as to give me notice of some things, that convinced me I ought to be thankful I had no more to do with her.

Hatsell, Baron—When did she cast you off?

Mr. Marshall—I cannot be positive as to the time, my lord, but it was in answer to the only serious letter I ever writ to her; as I remember, I was not over importunate in this affair, for I never was a very violent lover.

Hatsell, Baron—Well, but tell the time as near as you can.

Mr. Marshall—I believe it was a second or third time I came down to Hertford, which is about a year and a half since; and, during the whole of my acquaintance with her, I never till then found her averse to any proposal of mine; but she then telling me her resolution was not to comply with what I desired, I took her at her word, having, partly by my own observation, but more by Mr. Cowper's friendship, been pretty well able to guess at her meaning.

Cowper—Because what you say may stand confirmed beyond contradiction, I desire you to say whether you have any letters from her to yourself?

Mr. Marshall—Yes, I have a letter in my hand which she sent me, upon occasion of some songs I sent her when I came to town, which she had before desired of me; and this is a letter in answer to mine; it is her hand-writing, and directed to me.

Hatsell, Baron—How do you know it is her hand-writing?

Mr. Marshall—I have seen her write, and seen and received several letters from her.

Cowper—Pray shew it Mr. Beale.

Mr. Beale—I believe it to be her hand; I have seen her write, and have a receipt of hers.

Clerk of Arraigns—It is directed to Mr. Thomas Marshall at Lyons-inn, and dated Sept. 26, 1697.

'Sept. 26, 1697.

'Sir,

'Yours came very safe; but I wish you had explained your meaning a little more about the accident you speak of; for have been puzzling my brains ever since; and without I shall set myself to conjuring, I cannot imagine what it should be, for I know of nothing that happened after you went away, nor no discourse about you, only when we were together, the company would sometimes drink your health, or wish you had been there, or the like; so that I fancy it must be something Mr. has invented for diversion; though I must confess we have a sort of people here, that are inspired with the gift of foreknowledge, who will tell one as much for nothing as any astrologer will have a good piece of money for. But to leave jesting, I cannot tell when I shall come to London, unless it be for the night and away, about some business with my brother, that I must be obliged to attend his motions; but when I do, I shall remember my promise, although I do not suppose you are any more in earnest than myself in this matter. I give you thanks for your songs and your good wishes, and rest,

Your loving Duck.'

Cowper—Have you any more letters?

Mr. Marshall—Yes, I have another letter here, but before it is read, I think it will be proper to give the court an account of the occasion of its being writ. I waited on Mrs. Stout one evening at her lodgings in Houndsditch, and at our parting she appointed to meet me the next day; and to excuse her not coming according to that appointment, she sent me this letter.

Clerk of Arraigns—It is directed to Mr. Thomas Marshall; it is without date.

'Mr. Marshall,

I met unexpected with one that came from H——d last night, who detained me so long with relating the most notorious inventions and lyes that are now extant amongst those people, that I could not possible come till it was late; and this day was appointed for business, that I am uncertain when it will be finished; so that I believe I cannot see you whilst I am in town. I have no more at present, but that I am

Your obliged Friend.'

Cowper—Now, my lord, if your lordship please, I proceed to shew you, that I went not so much voluntarily as pressed by her to come to this house, and for that I will produce one letter from her to myself; and, my lord, I must a little inform you of the nature of this letter. It is on the outside directed to Mrs. Jane Ellen, to be left for her at Mr. Hargrave's coffee-house. For her to direct for me at a coffee-house, might make the servants wonder and the post-man might suspect, and for that reason she directed it in that manner. There was Mr. Marshall by whom I received it, and I can prove the hand by Mr. Beale.

Mr. Marshall—My lord, I verily believe I was by, and that Mr. Cowper shewed me this letter immediately on receipt of it, as he had done several others from the same hand.

Clerk of Arraigns—This is directed for Mrs. Jane Ellen. It is dated March the 5th, without any year.

'March the 5th.

Sir,

I am glad you have not quite forgot that there is such a person as I in being; but I am willing to shut my eyes, and not see anything that looks like unkindness in you, and rather content myself with what excuses you are pleased to make, than be inquisitive into what I must not know. I should very readily comply with your proposition of changing the season, if it were in my power to do it, but you know that lies altogether in your own breast; I am sure the winter has been too unpleasant for me to desire the continuance of it; and I wish you were to endure the sharpness of it but for one hour, as I have done for many long nights and days; and then I believe it would move that rocky heart of yours, that can be so thoughtless of me as you are; But if it were designed for that end, to make the summer the more delightful, I wish it may have the effect so far, as to continue it to be so too, that the weather may never overcast again; the which if I could be assured of, it would recompense me for all that I have ever suffered, and make me as easy a creature as I was the first moment I received breath. When you come to H——d pray let your steed guide you, and do not do as you did the last time; and be sure order your affairs to be here as soon as you can, which cannot be sooner than you will be heartily welcome to

Your very sincere Friend.'

'For Mrs. Jane Ellen, at Mr. Hargrave's,

near Temple-bar, London.'

Cowper—Though it is directed to Mrs. Jane Ellen, it begins in the inside 'Sir,' and it is dated the 5th March next before the 13th.

Hatsell, Baron—What March was it?

Mr. Marshall—I kept no account of the time, but I am very positive, by the contents, that Mr. Cowper shewed me this letter and I read it, but by my now remembrance, it should be longer since than March last.

Cowper—It was March last. That which will set Mr. Marshall's memory to rights is this other letter, which I received at the Rainbow, when he was by, and he read it; and it importuning me to a matter of this kind, I did produce it to my brother and him; they both knew of it; and both read it, and that will refresh his memory concerning the date of the other.

Mr. Marshall—My lord, I was in the coffee-house with Mr. Cowper when he received this letter; and he afterwards shewed it to Mr. William Cowper, at the Covent-garden tavern, when I was by.

Clerk of Arraigns—This is dated the 9th of March, and directed to Mrs. Jane Ellen, at Mr. Hargrave's.

'March 9.

Sir,

I writ to you by Sunday's post, which I hope you have received; however, as a confirmation, I will assure you I know of no inconveniency that can attend your cohabiting with me, unless the grand jury should thereupon find a bill against me; but I won't fly for it, for come life, come death, I am resolved never to desert you; therefore according to your appointment I will expect you and till then I shall only tell you, that I am

'Yours,' etc.

'For Mrs. Jane Ellen, at Mr. Hargrave's,

near Temple-bar, London.'

Cowper—If your lordship please, I will further prove this letter by my brother.

William Cowper said that about a year and a half since, when Mrs. Stout was in London, his brother came to his chamber in the Temple, and told him that he had received a letter from Mrs. Stout, saying that she intended to visit him in his chamber that day. His brother told the witness that because of her connection with Marshall, as well as for other reasons, he would not receive her there; and it was arranged that as she intended first to dine with their father at his house in Hatton Garden, where the witness was then living, he should take the opportunity for casually remarking that the prisoner was that day gone to Deptford, as he in fact intended to do. This plan was carried out, with the result that Mrs. Stout left the room fainting. The witness then went on to give an account of how his brother showed him the last letter mentioned, at the Covent Garden Tavern—

Saith he, the occasion of my shewing it, is not to expose a woman's weakness, but I would not willingly lie under too many obligations, nor engage too far; nor on the other hand would I be at an unnecessary expence for a lodging.

It was accordingly arranged that the witness should write to Barefoot to dispose of his lodgings, as Cowper had already related.

I said I would write the next day, being Saturday; but when I should have writ, it was very late, and I was weary, being then tied down to the business of parliament; and partly for that reason, and partly in point of discretion, which I had upon my second thoughts, that it would be better for my brother to be at Mr. Barefoot's, which is near the court, and in the market place, I did neglect writing; and though I thought of it about eleven o'clock, yet, as I said, partly for one reason, and partly for another, I did not write that time.'

Beale was then called to prove the hand-writing of the letters, and the jury declared themselves satisfied.

Hatsell, Baron—I believe you may ask her mother, she will tell you whether it be her daughter's hand.

Mrs. Stout—How should I know! I know she was no such person; her hand may be counterfeited.

Hatsell, Baron—But if it were written in her more sober stile, what would you say then?

Mrs. Stout—I shan't say it to be her hand unless I saw her write it.

Mr. Stout—It is like my sister's hand.

Hatsell, Baron—Do you believe it to be her hand?

Mr. Stout—No, I don't believe it; because it don't suit her character.

Mrs. Barefoot had expected Cowper at her lodgings, and had prepared a bed for him. Cowper came to her house as usual, and sent to the coffee-house for his bag. Mrs. Stout sent her maid over to invite Cowper to dine at their house. Cowper came back to her house about eleven, by the town clock, and did not go out again.

Hanwell, the last witness's maid, made some preparations in Cowper's room before he went to bed, which he did a little before twelve.

Referring to the last-quoted letter of the deceased woman, Cowper says:

'I had rather leave it to be observed, than make the observation myself, what might be the dispute between us at the time the maid speaks of. I think it was not necessary she should be present at the debate; and therefore I might not interrupt her mistress in the orders she gave; but as soon as the maid was gone I made use of these objections; and I told Mrs. Stout by what accident I was obliged to take up my lodgings at Mrs. Barefoot's, and that the family was sitting up for me; that my staying at her house under these circumstances, would in probability provoke the censure of the town and country; and that therefore I could not stay, whatever my inclination might otherwise be; but, my lord, my reasons not prevailing, I was forced to decide the controversy by going to my lodging; so that the maid may swear true, when she says I did not contradict her orders.'

Spurr proved that Cowper came to the Glove and Dolphin Inn as the clock struck eleven, and stayed there about a quarter of an hour. The Glove and Dolphin was a little less than a quarter of a mile from Mrs. Stout's house.

Cowper then pointed out that, according to Sarah Walker's evidence, he left Mrs. Stout's house at a quarter to eleven by the real time; that if, as he should prove, it took half an hour to go from there to the place where Mrs. Stout was drowned, he could not, according to the evidence he had just called, have been there.

Sir W. Ashurst said it took him half an hour and one minute to walk to the place where the deceased was drowned. Sir T. Lane said it took him about three-quarters of an hour, 'and we did not stay at all by the way, except just to look upon the hospital.'

Kingett and Man, two servants at the Glove and Dolphin, confirmed Spurr's evidence as to the time when Cowper arrived there and the time he stayed there; adding that he came there to ask about an account for his horse.

Hatsell, Baron—Pray, wherein hath Sarah Walker said anything that is false?

Cowper—In this: I asked her when she gave evidence, whether she went out to see for her mistress all that night, and whether her mistress did not use to stay out at nights, and whether she herself had not used to say so? If your lordship pleases to remember, she said no. Pray, Mrs. Mince, what have you heard Mrs. Stout's maid say concerning her mistress, particularly as to her staying out all night?

Mrs. Mince—She hath said, that her mistress did not love to keep company with Quakers; and that she paid for her own board and her maid's; and that, when she entertained any body, it was at her own charge. And she hath said, that Mrs. Stout used to ask, who is with you, child? and she would not tell her; and that she did entertain her friends in the summer house now and then with a bottle of wine; and when her mother asked who was there? her mistress would say, bring it in here, I suppose there is none but friends; and after the company was gone, she used to make her mother believe that she went to bed: but she used to go out and take the key with her, and sometimes she would go out at the window, and she said particularly, one time she went out at the garden window, when the garden door was locked, and that she bid her not sit up for her, for she would not come in at any time.

Hatsell, Baron—Did ever Sarah Walker tell you that Mrs. Stout staid out all night?

Mrs. Mince—She hath said, she could not tell what time she came in, for she went to bed.

Cowper offered to prove that Gurrey, at whose house the other prisoners had stayed, had said that if he had gone to visit Mrs. Stout, meaning apparently, if he had gone to visit the mother after the daughter's death, the prosecution would not have taken place. To this he would answer that he never had gone to see her in his life.

Now, for a man officiously to make a new visit in the time of the assizes, one engaged in business as I was, and especially upon so melancholy an occasion; I say for me to go officiously to see a woman I never had the least knowledge of, would have been thought more strange (and justly might have been so) than the omission of that ceremony. For my part, I cannot conceive what Mr. Gurrey could mean, this being the case, by saying, that if I had visited Mrs. Stout, nothing of this could have happened.

Hatsell, Baron—Mr. Cowper, he is not the prosecutor, I think it is no matter what he said.

Sir W. Ashurst, Sir T. Lane, and Mr. Thompson were then called to Cowper's character, and described him as a humane, upright, and capable man.

This concluded the case against Cowper, and the case of Marson was next considered. In reply to a question from the judge, he explained that Stephens was the clerk of the paper in the King's Bench; that Rogers was steward of the King's Bench; and that it was their duty to wait upon the Lord Chief-Justice of the King's Bench out of town. On Monday they all went to the Lord Chief-Justice's house in Lincoln's Inn Fields, according to their custom, and all set out from there. Marson, being only an attorney in the borough court, could not go further with the others than Kingsland, and returned from there to his business in Southwark, where he attended the Court, as was his duty, and set out again at past four in the afternoon. On arriving at Waltham he met one Mr. Hanks, a clergyman, who was returning from attending the Lord Chief-Justice to Hertford, whom he persuaded to return with him to Hertford, on the plea that he did not know the way. They galloped all the way, and did not arrive at Hertford till eight. There they found the marshal, Stephens, Rogers, Rutkin, and others of the marshal's acquaintance at the coffee-house, from which they went to the Glove and Dolphin, and stayed there till eleven o'clock. Rogers and the witness had a dispute about which of them should lie with Stephens at Gurrey's house, and they all went to Gurrey's to see what could be arranged, and to drink a glass of wine. Eventually Stephens, Rogers, and Marson, all stayed at Gurrey's; while Hanks and Rutkin went back to the marshal's. The party at Gurrey's drank three bottles of wine,

and afterwards, in jocular conversation, I believe Mr. Stephens might ask Mr. Gurrey if he knew of one Mrs. Sarah Stout? And the reason why he asked that question our witness will explain. I believe he might likewise ask what sort of woman she was? and possibly I might say the words, My friend may be in with her, though I remember not I did say anything like it; but I say there is a possibility I might, because I had heard she had denied Marshall's suit, and that might induce me to say, My friend may be in with her, for all that I remember. I confess Mr. Rogers asked me what money I had got that day, meaning at the Borough Court? I answered fifty shillings; saith he, we have been here a-spending our money, I think you ought to treat us, or to that purpose. As to the bundle mentioned I had no such, except a pair of sleeves and a neck-cloth. As to the evidence which goes to words spoken, the witnesses have fruitful inventions; and as they have wrested and improved the instances I have been particular in, so they have the rest, or otherwise forged them out of their own heads.

Hatsell, Baron—Mr. Rogers, what do you say to it?

Rogers—We came down with the marshal of the King's bench, it rained every step of the way, so that my spatter-dashes and shoes were fain to be dried; and it raining so hard, we did not think Mr. Marson would have come that day, and therefore we provided but one bed, though otherwise we should have provided two, and were to give a crown for our night's lodging. We went from the coffee-house to the tavern, as Mr. Marson has said, and from the tavern the next way to our lodging, where there was some merry and open discourse of this gentlewoman; but I never saw her in my life, nor heard of her name before she was mentioned there.

Stephens—We never stirred from one another, but went along with the marshal of the King's bench, to accompany my lord chief-justice out of town, as is usual.

Hatsell, Baron—I thought it had been as usual for him to go but half the way with my lord chief-justice.

Rogers—They generally return back after they have gone half the way, but some of the head officers go throughout.

Stephens—It was the first circuit after the marshal came into his office, and that is the reason the marshal went the whole way.

Hatsell, Baron—Did not you talk of her courting days being over?

Prisoners—Not one word of it; we absolutely deny it.

Stephens—I never saw her.

Jones—Mr. Marson, did you ride in boots?

Marson—Yes.

Jones—How came your shoes to be wet?

Marson—I had none.

Hunt gave an account of how he was at the Old Devil Tavern at Temple Bar, on Sunday night, and Marson and three or four others of Clifford's Inn being there at the same time, discoursing of the marshal's attending the Lord Chief-Justice to Hertford, Marson said he too might be required to go; on which one of the company said, 'If you do go to Hertford, pray enquire after Mr. Marshall's mistress, and bring us an account of her;' and it was this discourse that gave occasion to talk of Mrs. Stout at Gurrey's house, which was done openly and harmlessly. This story was corroborated by one Foster, who had been at the Devil; and Stephens offered to call another witness to the same purpose, but was stopped by the judge.

Hanks was called, and gave the same account of his arrival in Hertford as Marson had already given. He was in Marson's company from the time he met him till he left him at his lodgings, at about eleven o'clock.

Rutkin was called by Marson to give an account of his coming to Hertford.

Rutkin—My lord, I came to wait on the marshal of the King's Bench to Hertford, and when we were come to Hertford we put up our horses at the Bull, and made ourselves a little clean; we went to church, and dined at the Bull, and then we walked in and about the court, and diverted ourselves till about seven o'clock; and between seven and eight o'clock came Mr. Marson and Dr. Hanks to town, and then we agreed to go to the Dolphin and Glove to drink a glass of wine; the marshal went to see an ancient gentleman, and we went to the Dolphin and Glove, and staid there till past ten o'clock, and after the reckoning was paid we went with them to their lodging, with a design to drink a glass of wine; but then I considered I was to lie with the marshal, and for that reason I resolved not to go in, but came away, and went to the Bull Inn, and drank part of a glass of wine and afterwards went to the next door to the Bull Inn, where I lay with the marshal.

Marson called witnesses to character, who swore that they had always had a good opinion of him, that they had never seen him but a civilised man, that he had been well brought up amongst them, and that they had never seen him given to debauchery.

Cowper said that he was concerned to defend the other prisoners as much as himself, and that there was something he wished to say in their behalf.

'The principal witness against them is one Gurrey; and I will prove to you, that since he appeared in this court, and gave his evidence, he went out in a triumphant manner, and boasted that he, by his management, had done more against these gentlemen than all the prosecutor's witnesses could do besides. To add to that I have another piece of evidence that I have just been acquainted with; my lord, it is the widow Davis, Gurrey's wife's sister, that I would call.

Mrs. Davis was asked by her sister to help her lay the sheets for the men in Gurrey's house, and while she was doing so the gentlemen came into the room; it was then about ten, or something later. They had three quarts of wine and some bread and cheese, and then went to bed; and after that Gurrey went to fetch Gape, who lodged at his house, from Hockley's.

Cowper—I only beg leave to observe that Gurrey denied that he went for him.

Hatsell, Baron—Ay; but this signifies very little, whether it be true or false.

Various other witnesses were called, who gave all the prisoners excellent characters in their private and professional capacities.

Jones—My lord, we insist upon it, that Mr. Cowper hath given a different evidence now, from what he did before the coroner; for there he said he never knew any distraction, or love fit, or other occasion she had to put her upon this extravagant action. Now here he comes, and would have the whole scheme turned upon a love-fit. Call John Mason.

Mason, in answer to questions put to him by Mr. Stout and Jones, said that Cowper, before the coroner, had said that he knew no cause for Mrs. Stout's suicide; and that she was a very modest person. He was asked whether he knew any person she was in love with, and he said he knew but of one, and his name was Marshall, and he was always repulsed by her.

Archer was present at the inquest, and heard Cowper say that he knew no occasion of Mrs. Stout's death, nor of any letters.

Cowper—Then I must call over the whole coroner's inquest, to prove the contrary.

Hatsell, Baron—Did they ask him concerning any letters?

Archer—They asked him, If he knew of any thing that might be the occasion of her death?

Hatsell, Baron—I ask you again, if they asked him if he knew of any letters?

Archer—My lord, I do not remember that.

Mr. Stout—I would have called some of the coroner's inquest but I was stopped in it.

Juryman—We have taken minutes of what has passed; If your lordship pleases we will withdraw.

Hatsell, Baron—They must make an end first.

Mrs Larkin was called, and said that Rutkin came to her house between nine and ten, and that the marshal did not come in till an hour afterwards.

Mr. Stout desired to call witnesses to his sister's reputation; and Jones said that the whole town would attest to that.

Hatsell, Baron, then summed up. He said that the jury could not expect that he should sum up fully, but that he would notice the most material facts, and that if he omitted any thing, Jones or Cowper would remind him of it. He then recapitulated Sarah Walker's evidence, very briefly; and then went on:—

The other witnesses that came afterwards, speak concerning the finding of the body in the river, and tell you, in what posture it was. I shall not undertake to give you the particulars of their evidence; but they tell you she lay on her right side, the one arm up even with the surface of the water, and her body under the water; but some of her cloaths were above the water. You have also heard what the doctors and surgeons said on the one side and the other, concerning the swimming and sinking of dead bodies in the water; but I can find no certainty in it; and I leave it to your consideration.

Further, there were no signs of water in the body, and it was said that this was a sign that she was not drowned; but then it was answered that it might show that she had drowned herself, because if she wished to drown herself she would choke herself without swallowing any water.

The doctors and surgeons have talked a great deal to this purpose, and of the water's going into the lungs or the thorax; but unless you have more skill in anatomy than I you would not be much edified by it. I acknowledge I never studied anatomy; but I perceive that the doctors do differ in their notions about these things.... Gentlemen, I was very much puzzled in my thoughts, and was at a loss to find out what inducement there could be to draw in Mr. Cowper, or these three other gentlemen, to commit such a horrid, barbarous, murder. And on the other hand, I could not imagine what there should be to induce this gentlewoman, a person of plentiful fortune, and a very sober good reputation, to destroy herself.'

But if they believed the letters that had been produced to be in her hand, there was evidence to show that although she was a virtuous woman, a distemper might have turned her brains, and discomposed her mind.

As to these three other gentlemen that came to this town at the time of the last assizes, what there is against them, you have heard; they talked at their lodging at a strange rate, concerning this Mrs. Sarah Stout, saying, her business is done, and that there was an end of her courting days, and that a friend of theirs was even with her by this time. What you can make of this, that I must leave to you; but they were very strange expressions; and you are to judge whether they were spoken in jest, as they pretend, or in earnest. There was a cord found in the room, and a bundle seen there, but I know not what to make of it. As to Mrs. Stout, there was no sign of any circle about her neck, which, as they say, must have been if she had been strangled; some spots there were; but it is said, possibly these might have been occasioned by rubbing against some piles or stakes in the river. Truly, gentlemen, these three men, by their talking, have given great cause of suspicion; but whether they, or Mr. Cowper, are guilty or no, that you are to determine. I am sensible I have omitted many things; but I am a little faint, and cannot remember any more of the evidence.

The jury then retired, and in half an hour returned with a verdict of Not Guilty as to all the prisoners.

The acquittal in this case led to an appeal of murder, the most curious survival of the earliest English criminal procedure, which was not finally abolished till 1819. The effect of such a proceeding was that after an acquittal on an indictment for murder, the prosecutor might challenge the accused to an ordeal by battle. Accordingly, in the long vacation following the trial, Mrs. Stout, the mother of the dead woman, sued a writ of appeal out of Chancery, against Cowper, in the name of an infant who was her daughter's heir. The sealing of the writ was delayed, it is said to nearly the last possible day, a year after the alleged murder, for the purpose of keeping the matter in suspense as long as possible; and the consent of the mother of the infant to Mrs. Stout's being named as his guardian for the purpose, was obtained from her by a fraudulent representation that the object of the proceeding was to obtain the deceased woman's property for him. On discovering what its real effect was, she and her friends applied to one Toler, the under-sheriff of Hertfordshire, for the writ, and on his giving it up to them, burnt it. On a rule being obtained for the return of the writ, and it appearing that Toler had delivered it to the infant's mother, he was adjudged guilty of a gross contempt, and heavily fined. Holt, Lord Chief-Justice, said on this occasion that

he wondered that it should be said that an appeal is an odious prosecution. He said he esteemed it a noble remedy, and a badge of the rights and liberties of an Englishman. The court of king's bench, to show their resentment, committed Toler to the prison of the king's bench for his fine, though the clerk in court would have undertaken to pay it. And Holt, chief-justice, said to Toler, that he had not been in prison long enough before, and that he might now, if he pleased, go to Hertford and make his boast that he had got the better of the king's bench.

Afterwards Mrs. Stout petitioned the Lord Keeper for another writ; the infant and his mother presenting a counter-petition disowning their former writ as sued forth without their consent. After an argument before a full court it was decided that the Court had power to grant a new writ, but that it would be unjust to grant one under the present circumstances, because, among other reasons, the appellant and his mother had renounced the writ as soon as they understood its nature, and there was no proof that the appellees had been privy to their action.