Chapter V: Part 5

[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 lymphaeduct, 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?