Chapter VII: Part 7

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.

FOOTNOTES:

[43] Spencer Cowper (1669-1727) was the younger brother of Earl Cowper, who was the first Lord Chancellor of Great Britain. He was educated at Westminster, and made Controller of the Bridge House Estates in 1690. At the time of this trial his brother was the member for Hertford. In 1705 and 1708 he represented Beeralston in Parliament; he was one of the managers in Sacheverell's trial, and lost his seat in consequence, but was afterwards elected for Truro in 1711. In 1714 he became Attorney-General to the Prince of Wales, and in 1717 Chief-Justice of Chester. On the accession of George the Second he was made Attorney-General of the Duchy of Chester, and a Judge of the Common Pleas in 1727. He died the same year. He was the grandfather of William Cowper the poet.

[44] Sir Henry Hatsell (1641-1714) was the son of an active Roundhead who sat in the House of Commons during the Commonwealth. He was educated at Exeter College, was called to the Bar in 1667, and became a Baron of the Exchequer in 1697. The present trial was the most conspicuous with which he was connected, from which fact it may be supposed that he never enjoyed a very high reputation. He was removed from the Bench soon after Queen Anne's accession.

[45] This John Dimsdale was apparently the father of the first Baron Dimsdale, who inoculated Catharine of Russia and the Grand Duke Paul, her son, for smallpox in 1728. John's father was William, who accompanied William Penn to America in 1684; so that it is not clear who the Mr. Dimsdale, senior, and Dr. Robert Dimsdale of this trial were. The family is, however, one which has long been settled in Hertfordshire.

[46] _Vulgar Errors_, Book IV., ch. vi., 'Of Swimming and Floating.'

[47] The Lord of the Manor might have a right to the forfeited goods of a felon.

[48] Sir Hans Sloane (1660-1753) was born in Co. Down. He studied medicine abroad, and was elected a member of the Royal Society in 1685. In 1687 he went to the West Indies as secretary to the Duke of Albemarle, and made valuable scientific collections. He was elected secretary of the Royal Society in 1693, and succeeded Sir Isaac Newton as president of the same body in 1727. He was physician to Queen Anne and George the Second, and founded the botanical garden at Chelsea for the Society of Apothecaries. He left his collections to the nation, and they formed part of the original nucleus of the British Museum. Sloane Street and Hans Square derive their names from him.

[49] The lay reader must observe that Sloane is talking of the 'civil law.'

[50] William Cowper (1666-1709) was a leading surgeon at the time of this trial, having been elected a member of the Royal Society in 1696, and in 1698 having published a treatise on anatomy, which led to a vigorous controversy between him and a Dutch doctor of the name Bidloo, whose anatomical plates he seems to have adopted for his own work. He subsequently published a variety of papers on surgery, and was the discoverer of Cowper's glands.

SAMUEL GOODERE AND OTHERS

On the 18th of March 1741, at the Bristol Gaol-delivery, Samuel Goodere,[51] Matthew Mahony, and Charles White were indicted for the murder of Sir John Dineley Goodere, the brother of the first-named prisoner. They were tried before Serjeant Michael Foster.[52] The trial was adjourned to the 26th on account of Goodere's health, when there appeared for the prosecution _Vernon_, and for the prisoner _Goodere_, _Shepard_ and _Frederick_. The other prisoners were undefended.

_Vernon_ opened the case. He began--

May it please you, Mr. Recorder, and you, gentlemen that are
sworn on the jury, I am counsel for the King against the
prisoners at the bar, who stand indicted for the murder of sir
John Dineley Goodere; they are also charged on the coroner's
inquest with the same murder; and though it is impossible for
human nature not to feel some emotions of tenderness at so
affecting a sight as now presents itself at the bar; yet,
gentlemen, should the guilt of this black and frightful murder
be fixed upon the prisoners (as from my instructions I fear it
will be), pity must then give way to horror and astonishment at
the baseness and barbarity of the fact and circumstances; and
our sorrow ought to be that, through the lenity of the laws,
the unnatural author and contriver of so shocking a piece of
cruelty, and this, his brutal accomplice in the ruffianly
execution of it, should be to share the common fate of ordinary
malefactors.

He then proceeds to point out that the indictment alleges that Mahony strangled the deceased, and that Goodere was present aiding and abetting him in the act; that therefore it would be immaterial for the jury which of the two actually committed the act, if they were acting together; and that it would not be material whether they strangled the deceased with a rope, a handkerchief, or their hands, 'so the kind of death be proved.' Goodere was Sir John's brother, and there had long been a quarrel between them owing to various causes, particularly because Sir John had cut off the entail of a property in Worcestershire, to which Goodere would otherwise have been the heir in default of Sir John's issue. He had recently been appointed captain of the _Ruby_ man-of-war, and in January last she was lying in the King's road, within the county of Bristol. Sir John had been ordered to Bath for his health, and had made an engagement to call, on his way there, at the house of Mr. Jarrit Smith, in Bristol, to transact some business. Goodere had asked Smith to arrange a meeting between him and his brother to effect a reconciliation, and accordingly this visit, which was to take place on Tuesday the 13th of January, had been fixed upon for the purpose. On Monday the 12th, Goodere and Mahony called at the White Hart Inn, near the foot of College Green, in view of, and almost opposite to, Smith's house; and Goodere, commending the view from a closet above the porch, ordered breakfast to be prepared for him there the next day. On Tuesday, Goodere, accompanied by Mahony, and a gang of men belonging to a privateer called the _Vernon_, whom he had hired to assist him in seizing Sir John, 'but whom one would have thought, the name of that gallant admiral should have inspired with nobler sentiments,' came to the White Hart, where Goodere went upstairs to the closet he had ordered, and the others posted themselves below to watch for Sir John. He soon arrived, armed with pistols, and followed by a servant, but only made a short stay at Mr. Smith's, promising to come again the next Sunday. He was too well protected for it to be advisable to interfere with his movements, but Goodere's men, at his order, followed him a little way down the hill as he left the house. Mr. Smith afterwards told Goodere that his brother would return the next Sunday, and advised him to be in the way, that he might bring them together. Goodere accordingly made all his arrangements to effect his purpose. He ordered one Williams, a midshipman, to bring up the man-of-war's barge on Sunday, to leave it at a point a little below Bristol, with two or three men in charge of her, and to bring on the rest of the crew to meet him at the White Hart, explaining that he was going to bring some one on board. Accordingly, on the Sunday, Goodere, the barge-men, and the privateersmen, all met at the White Hart; and at three in the afternoon Goodere went across to Mr. Smith's. There he met his brother, with whom he spent some time, conversing and drinking with him apparently on perfectly friendly terms. After half an hour, however, Sir John rose to go, followed by his brother; as soon as they got into the street Goodere made a sign to his men in the White Hart, who immediately seized Sir John, and partly led him, and partly carried him towards the boat which was waiting for them, as Goodere had ordered. Sir John made what resistance he could, calling out that he was ruined, and that his brother was going to take his life; his captors, however, explained to bystanders who tried to interfere that he was a murderer, whom they were arresting, and kept off the crowd by means of the bludgeons and truncheons with which they were armed. They could not prevent Sir John, however, from calling out, as he was being put into the barge, that he was going to be murdered, that the people by were to tell Mr. Smith, and that his name was Sir John Dineley. The privateersmen were landed lower down the river, and at about seven in the evening Sir John was brought on board the _Ruby_. There his brother pretended to the crew that he was a madman, and shut him up in the purser's cabin, on to the door of which he had two new bolts fitted. A sentry was posted outside the door, but at some time after midnight he was relieved by Goodere himself, who admitted Mahony and White, keeping back another man from approaching it. A struggle was heard in the cabin, and Sir John calling out, 'Murder! must I die! Help, for God's sake! save my life, here are twenty guineas, take it!' Then Mahony called for a light, which was handed in to him by Goodere, while he still kept another man away from the cabin door by his cutlass. Goodere then withdrew to his cabin, and Mahony and White were put ashore in the ship's yawl. In the morning the ship's cooper, who had heard Sir John calling out, and in fact seen a part of the attack on him through a chink, broke open the door of the purser's cabin and found the dead body. Goodere was then arrested by the crew, and brought before the Mayor of Bristol, where he denied all knowledge of the matter.

_Shepard_ asked that the witnesses for the prosecution should be ordered out of court.

_Vernon_ replied that he had no right to this, and that as it would seem to cast a slur upon their honesty he objected to it being done.

_Shepard_ admitted that he had no right to it, but asked it as a favour; on which all witnesses were ordered to leave the court, an exception being made in favour of Mr. Jarrit Smith, who claimed a right to be present as he was prosecuting solicitor as well as a witness.

_Chamberlayn_ was called, and said that about three weeks before the death of Sir John he was asked by Goodere to interpose with Mr. Jarrit Smith to bring about a reconciliation between him and Sir John. He went to Mr. Smith as he was asked to, and he promised to do all he could in the matter. The brothers had been at law a long while, and spent a great deal of money, and that was why Goodere wanted Mr. Smith to bring about a reconciliation between them.

_Jarrit Smith_ was then called, and deposed that Mr. Chamberlayn had brought him the message he had described, and had brought Goodere to his house, and that he had promised him to do what he could to bring about a reconciliation.

Some little time after they were gone, I saw sir John, and told
him that Mr. Goodere had applied to me to do all I could to
reconcile them. Sir John seemed to speak much against it at
first, and thought it would be to no purpose; for that he had
been a real friend to the captain, who had used him very ill;
but at last he was pleased to pass a compliment on me, and
said, I cannot refuse anything you ask of me. He then mentioned
several things the captain had said; and in particular told me
that at the death of sir Edward Goodere, his father, Mr.
Goodere, the prisoner, had placed several persons in the house
where sir Edward lay dead, in order to do him some mischief,
and he apprehended to take away his life.

SHEPARD--I must submit it to the Court, that what sir John said
at that time is not a matter of evidence.

THE RECORDER--It is not evidence, but perhaps it is
introductory to something Mr. Smith has further to say; if it
be not, it should not have been mentioned.

SMITH--And that he had endeavoured to set aside a common
recovery, and made strong application to the Court of Common
Pleas for that purpose.

SHEPARD--Whether this be evidence, I insist upon it that in
point of law it is not, and it may have an effect on the jury.

THE RECORDER--I will take notice to the jury what is not
evidence. Go on, Mr. Smith.