FOOTNOTES:

Then the lords went back to their own house in the same order they came into the court in Westminster Hall, and debated the matter among themselves, what judgment to give upon the evidence that had been heard; and in about two hours' time they returned again into the court, erected upon a scaffold in Westminster-hall; and after they were seated in their places, the Lord High Steward being seated in his chair before the throne, spoke to the Lords thus:Lord High Steward—Will your lordships proceed to give your judgment?Lords—Ay, Ay.Then the Lord High Steward asked this question of every one of the lords there present, beginning with the puisne baron, which was the lord Bernard.Lord High Steward—My lord Bernard, is Edward Earl of Warwick guilty of the felony and murder whereof he stands indicted, or not guilty?The lord Bernard stood up in his place uncovered, and laying his right hand upon his breast pronounced his judgment thus:Lord Bernard—Not Guilty of murder, but Guilty of manslaughter, upon my honour.The same question was asked severally of all the lords, who in the same form delivered the same opinion.Then the Lord High Steward reckoned up the number of peers present, and the opinions that were given, and announced that there were 93 present, and that they had all acquitted lord Warwick of murder, but had found him guilty of manslaughter. Lord Warwick was then called in, the judgment was announced to him, and he was asked what he had to say why judgment of death should not be pronounced against him according to law. And he claimed the benefit of his peerage, under the statute of Edward the 6th.Lord High Steward—My lord, your lordship has demanded the benefit of your peerage upon the statute of Edward the 6th, and you must have it by law; but I am directed by their lordships to acquaint you that you cannot have the benefit of that statute twice; therefore, I am likewise directed by their lordships to say that they hope you will take a more than ordinary care of your behaviour for the future, that so you may never hereafter fall into such unfortunate circumstances as you have been now under; my lords hope this will be so sensible a warning, that nothing of this kind will ever happen to you again; your lordship is now to be discharged.Lord High Steward—Is it your lordships' pleasure to adjourn to the House of Lords?Lords—Ay, Ay.Lord High Steward—This House is adjourned to the House of Lords.Then the lords went in procession, in the same order that they came into the court.

Lord High Steward—Will your lordships proceed to give your judgment?

Lords—Ay, Ay.

Then the Lord High Steward asked this question of every one of the lords there present, beginning with the puisne baron, which was the lord Bernard.

Lord High Steward—My lord Bernard, is Edward Earl of Warwick guilty of the felony and murder whereof he stands indicted, or not guilty?

The lord Bernard stood up in his place uncovered, and laying his right hand upon his breast pronounced his judgment thus:

Lord Bernard—Not Guilty of murder, but Guilty of manslaughter, upon my honour.

The same question was asked severally of all the lords, who in the same form delivered the same opinion.

Then the Lord High Steward reckoned up the number of peers present, and the opinions that were given, and announced that there were 93 present, and that they had all acquitted lord Warwick of murder, but had found him guilty of manslaughter. Lord Warwick was then called in, the judgment was announced to him, and he was asked what he had to say why judgment of death should not be pronounced against him according to law. And he claimed the benefit of his peerage, under the statute of Edward the 6th.

Lord High Steward—My lord, your lordship has demanded the benefit of your peerage upon the statute of Edward the 6th, and you must have it by law; but I am directed by their lordships to acquaint you that you cannot have the benefit of that statute twice; therefore, I am likewise directed by their lordships to say that they hope you will take a more than ordinary care of your behaviour for the future, that so you may never hereafter fall into such unfortunate circumstances as you have been now under; my lords hope this will be so sensible a warning, that nothing of this kind will ever happen to you again; your lordship is now to be discharged.

Lord High Steward—Is it your lordships' pleasure to adjourn to the House of Lords?

Lords—Ay, Ay.

Lord High Steward—This House is adjourned to the House of Lords.

Then the lords went in procession, in the same order that they came into the court.

The next day Lord Mohun was tried on a similar indictment before the same court. Andmost of the same witnesses having given the same evidence again, he was acquitted and discharged. He then expressed himself thus:

Lord Mohun—My lords, I do not know which way to express my great thankfulness and acknowledgment of your lordships' great honour and justice to me; but I crave leave to assure your lordships, that I will endeavour to make it the business of the future part of my life, so to behave myself in my conversation in the world, as to avoid all things that may bring me under any such circumstances, as may expose me to the giving your lordships any trouble of this nature for the future.

Then proclamation was made dissolving the Commission, and the Court adjourned.

As is well known, the duel described in this trial is the original of that described inEsmondbetween Lord Castlewood and Lord Mohun; it may therefore be of interest to transcribe a few passages out of the latter work, premising only that there seems to be some faint relationship between Captain Macartney, Lord Mohun's second in his duel with Lord Castlewood, and the Lord Macartney who afterwards assisted him in the same capacity in his final meeting with the Duke of Hamilton. Lord Castlewood, as will be remembered, had come up to London to fight Lord Mohun, really on account of his relations with Lady Castlewood, nominally as the result of a quarrel at cards, which it was arrangedshould have all the appearance of taking place. Lord Castlewood, Jack Westbury, and Harry Esmond all meet together at the 'Trumpet,' in the Cockpit, Whitehall.

When we had drunk a couple of bottles of sack, a coach was called, and the three gentlemen went to the Duke's Playhouse, as agreed. The play was one of Mr. Wycherley's—Love in a Wood. Harry Esmond has thought of that play ever since with a kind of terror, and of Mrs. Bracegirdle, the actress who performed the girl's part in the comedy. She was disguised as a page, and came and stood before the gentlemen as they sat on the stage, and looked over her shoulder with a pair of arch black eyes, and laughed at my lord, and asked what ailed the gentleman from the country, and had he had bad news from Bullock fair?Between the acts of the play the gentlemen crossed over and conversed freely. There were two of Lord Mohun's party, Captain Macartney, in a military habit, and a gentleman in a suit of blue velvet and silver, in a fair periwig with a rich fall of point of Venice lace—my Lord the Earl of Warwick and Holland. My lord had a paper of oranges, which he ate, and offered to the actresses, joking with them. And Mrs. Bracegirdle, when my lord Mohun said something rude, turned on him, and asked him what he did there, and whether he and his friends had come to stab anybody else, as they did poor Will Mountford? My lord's dark face grew darker at this taunt, and wore a mischievous, fatal look. They that saw it remembered it, and said so afterward.When the play was ended the two parties joinedcompany; and my Lord Castlewood then proposed that they should go to a tavern and sup. Lockit's, the 'Greyhound,' in Charing Cross was the house selected. All three marched together that way, the three lords going a-head.'

Between the acts of the play the gentlemen crossed over and conversed freely. There were two of Lord Mohun's party, Captain Macartney, in a military habit, and a gentleman in a suit of blue velvet and silver, in a fair periwig with a rich fall of point of Venice lace—my Lord the Earl of Warwick and Holland. My lord had a paper of oranges, which he ate, and offered to the actresses, joking with them. And Mrs. Bracegirdle, when my lord Mohun said something rude, turned on him, and asked him what he did there, and whether he and his friends had come to stab anybody else, as they did poor Will Mountford? My lord's dark face grew darker at this taunt, and wore a mischievous, fatal look. They that saw it remembered it, and said so afterward.

When the play was ended the two parties joinedcompany; and my Lord Castlewood then proposed that they should go to a tavern and sup. Lockit's, the 'Greyhound,' in Charing Cross was the house selected. All three marched together that way, the three lords going a-head.'

At the 'Greyhound' they play cards, and Esmond tries in vain to quarrel with Mohun himself.

My Lord Mohun presently snuffed a candle. It was when the drawers brought in fresh bottles and glasses and were in the room—on which my Lord Viscount said, 'The Deuce take you, Mohun, how damned awkward you are. Light the candle, you drawer.''Damned awkward is a damned awkward expression, my lord,' says the other. 'Town gentlemen don't use such words—or ask pardon if they do.''I'm a country gentleman,' says my Lord Viscount.'I see it by your manner,' says my Lord Mohun. 'No man shall say damned awkward to me.''I fling the words in your face, my lord,' says the other; 'shall I send the cards too?''Gentlemen, gentlemen! before the servants?' cry out Colonel Westbury and my Lord Warwick in a breath. The drawers go out of the room hastily. They tell the people below of the quarrel upstairs.'Enough has been said,' says Colonel Westbury. 'Will your lordships meet to-morrow morning?''Will my Lord Castlewood withdraw his words?' asks the Earl of Warwick.'My lord Castlewood will be —— first,' says Colonel Westbury.'Then we have nothing for it. Take notice, gentlemen, there have been outrageous words—reparation asked and refused.''And refused,' says my Lord Castlewood, putting on his hat. 'Where shall the meeting be? and when?''Since my lord refuses me satisfaction, which I deeply regret, there is no time so good as now,' says my Lord Mohun. 'Let us have chairs, and go to Leicester Field.''Are your lordship and I to have the honour of exchanging a pass or two?' says Colonel Westbury, with a low bow to my Lord of Warwick and Holland.'It is an honour for me,' says my lord, with a profound congée, 'to be matched with a gentleman who has been at Mons and Namur.''Will your Reverence permit me to give you a lesson?' says the captain.'Nay, nay, gentlemen, two on a side are plenty,' says Harry's patron. 'Spare the boy, Captain Macartney,' and he shook Harry's hand for the last time, save one, in his life.At the bar of the tavern all the gentlemen stopped, and my Lord Viscount said, laughing, to the bar-woman, that those cards set people sadly a-quarrelling; but that the dispute was over now, and the parties were all going away to my Lord Mohun's house, in Bow Street, to drink a bottle more before going to bed.A half-dozen of chairs were now called, and the six gentlemen stepping into them, the word was privately given to the chairmen to go to Leicester Field, where the gentlemen were set down opposite the 'Standard Tavern.' It was midnight, and the town was a-bed by this time, and only a few lights in the windows of thehouses; but the night was bright enough for the unhappy purpose which the disputants came about; and so all six entered into that fatal square, the chairmen standing without the railing and keeping the gate, lest any persons should disturb the meeting.All that happened there hath been matter of public notoriety, and is recorded, for warning to lawless men, in the annals of our country. After being engaged for not more than a couple of minutes, as Harry Esmond thought (though being occupied at the time with his own adversary's point, which was active, he may not have taken a good note of time) a cry from the chairmen without, who were smoking their pipes, and leaning over the railings of the field as they watched the dim combat within, announced that some catastrophe had happened, which caused Esmond to drop his sword and look round, at which moment his enemy wounded him in the right hand. But the young man did not heed this hurt much, and ran up to the place where he saw his dear master was down.My Lord Mohun was standing over him.'Are you much hurt, Frank?' he asked in a hollow voice.'I believe I'm a dead man,' my lord said from the ground.'No, no, not so,' says the other; 'and I call God to witness, Frank Esmond, that I would have asked your pardon, had you but given me a chance. In—in the first cause of our falling out, I swear that no one was to blame but me, and—and that my lady——''Hush!' says my poor Lord Viscount, lifting himself on his elbow and speaking faintly. 'Twas a dispute about the cards—the cursed cards. Harry, my boy, are you wounded too? God help thee! I loved thee,Harry, and thou must watch over my little Frank—and—and carry this little heart to my wife.'And here my dear lord felt in his breast for a locket he wore there, and, in the act, fell back fainting.We were all at this terrified, thinking him dead; but Esmond and Colonel Westbury bade the chairmen come into the field; and so my lord was carried to one Mr. Aimes, a surgeon, in Long Acre, who kept a bath, and there the house was wakened up, and the victim of this quarrel carried in.

'Damned awkward is a damned awkward expression, my lord,' says the other. 'Town gentlemen don't use such words—or ask pardon if they do.'

'I'm a country gentleman,' says my Lord Viscount.

'I see it by your manner,' says my Lord Mohun. 'No man shall say damned awkward to me.'

'I fling the words in your face, my lord,' says the other; 'shall I send the cards too?'

'Gentlemen, gentlemen! before the servants?' cry out Colonel Westbury and my Lord Warwick in a breath. The drawers go out of the room hastily. They tell the people below of the quarrel upstairs.

'Enough has been said,' says Colonel Westbury. 'Will your lordships meet to-morrow morning?'

'Will my Lord Castlewood withdraw his words?' asks the Earl of Warwick.

'My lord Castlewood will be —— first,' says Colonel Westbury.

'Then we have nothing for it. Take notice, gentlemen, there have been outrageous words—reparation asked and refused.'

'And refused,' says my Lord Castlewood, putting on his hat. 'Where shall the meeting be? and when?'

'Since my lord refuses me satisfaction, which I deeply regret, there is no time so good as now,' says my Lord Mohun. 'Let us have chairs, and go to Leicester Field.'

'Are your lordship and I to have the honour of exchanging a pass or two?' says Colonel Westbury, with a low bow to my Lord of Warwick and Holland.

'It is an honour for me,' says my lord, with a profound congée, 'to be matched with a gentleman who has been at Mons and Namur.'

'Will your Reverence permit me to give you a lesson?' says the captain.

'Nay, nay, gentlemen, two on a side are plenty,' says Harry's patron. 'Spare the boy, Captain Macartney,' and he shook Harry's hand for the last time, save one, in his life.

At the bar of the tavern all the gentlemen stopped, and my Lord Viscount said, laughing, to the bar-woman, that those cards set people sadly a-quarrelling; but that the dispute was over now, and the parties were all going away to my Lord Mohun's house, in Bow Street, to drink a bottle more before going to bed.

A half-dozen of chairs were now called, and the six gentlemen stepping into them, the word was privately given to the chairmen to go to Leicester Field, where the gentlemen were set down opposite the 'Standard Tavern.' It was midnight, and the town was a-bed by this time, and only a few lights in the windows of thehouses; but the night was bright enough for the unhappy purpose which the disputants came about; and so all six entered into that fatal square, the chairmen standing without the railing and keeping the gate, lest any persons should disturb the meeting.

All that happened there hath been matter of public notoriety, and is recorded, for warning to lawless men, in the annals of our country. After being engaged for not more than a couple of minutes, as Harry Esmond thought (though being occupied at the time with his own adversary's point, which was active, he may not have taken a good note of time) a cry from the chairmen without, who were smoking their pipes, and leaning over the railings of the field as they watched the dim combat within, announced that some catastrophe had happened, which caused Esmond to drop his sword and look round, at which moment his enemy wounded him in the right hand. But the young man did not heed this hurt much, and ran up to the place where he saw his dear master was down.

My Lord Mohun was standing over him.

'Are you much hurt, Frank?' he asked in a hollow voice.

'I believe I'm a dead man,' my lord said from the ground.

'No, no, not so,' says the other; 'and I call God to witness, Frank Esmond, that I would have asked your pardon, had you but given me a chance. In—in the first cause of our falling out, I swear that no one was to blame but me, and—and that my lady——'

'Hush!' says my poor Lord Viscount, lifting himself on his elbow and speaking faintly. 'Twas a dispute about the cards—the cursed cards. Harry, my boy, are you wounded too? God help thee! I loved thee,Harry, and thou must watch over my little Frank—and—and carry this little heart to my wife.'

And here my dear lord felt in his breast for a locket he wore there, and, in the act, fell back fainting.

We were all at this terrified, thinking him dead; but Esmond and Colonel Westbury bade the chairmen come into the field; and so my lord was carried to one Mr. Aimes, a surgeon, in Long Acre, who kept a bath, and there the house was wakened up, and the victim of this quarrel carried in.

FOOTNOTES:[31]Charles, fifth Baron Mohun (1675?-1712), was the eldest son of the fourth baron, who died from a wound received in a duel when his son was about two years old. He fought his first duel in 1692, breaking out of his lodgings, where he was confined in consequence of a quarrel over dice, for the purpose, with the assistance of the Earl of Warwick of the present case, the grandson of the Lord Holland of the Civil War. This encounter ended in both combatants being disarmed. Two days later he abetted in the murder of Mountfort, an actor. One Captain Hill was in love with Mrs. Bracegirdle, the famous actress, and supposed that he had cause to be jealous of the attentions she received from Mountfort, the equally eminent actor. Accordingly Hill and Mohun formed a plan (estimated to cost £50 in all) to carry off the lady as she came out of the theatre: and providing themselves with a coach-and-six and a body of soldiers set out on the enterprise. They missed Mrs. Bracegirdle at the theatre, but found her by chance coming out of a house in Drury Lane where she had supped. The attempt to carry her off in the coach failed, owing to the vigorous resistance made by her friends. Hill and Mohun, however, were allowed to escort her to her lodgings in Howard Street, where they saw her safely home. Mountfort lived in Norfolk Street, at the bottom of Howard Street; and as he was passing down the latter some two hours later, he was accosted by Mohun in a more or less friendly way; but while they were talking together, he was attacked and killed by Hill, who did not give him time to draw his sword. Hill fled, but Mohun was tried by his peers in Westminster Hall, January 1692-93. The trial excited great interest partly owing to the youth of the prisoner, and on a question being raised as to the degree of complicity necessary to constitute his guilt, he was acquitted. A report of the trial will be found inState Trials, xii. 950. There are also some picturesque references to it in Chapter xix. of Macaulay'sHistory. Mohun fought another duel in 1694, served for two years in Flanders, returned to England, and fought a duel with Captain Bingham in St. James's Park, which was interrupted by the sentries. The same year he was present at the death of Captain Hill, in the Rummer Tavern. The present case occurred in 1698, and seems to have closed his career as a rake. He was sent under Lord Macclesfield on a mission to present the Electress-Dowager Sophia with a copy of the Act of Succession, and he frequently took part in debates in the House of Lords. After Lord Macclesfield's death he became entangled in a long course of litigation with the Duke of Hamilton; and on their meeting in Master's Chambers, remarks passed between them which led to a duel, when both were killed. The Tories suggested that the Whigs had arranged the duel in order to get rid of Mohun because they were tired of him, and Hamilton, because they wanted to prevent his projected embassy to France.[32]John Lord Somers (1651-1716) was born at Whiteladies, near Worcester, educated at Trinity College, Oxford, and called in 1676. He appeared as junior counsel in the trial of the Seven Bishops, at the instance of Pollexfen (see vol. i. p. 241), and took a conspicuous part in the settlement of the monarchy after the Revolution, being an influential member of the Committee which drafted the Declaration of Rights. He became Solicitor-General in 1689, and Attorney-General in 1692, in which capacity it is curious to notice that he conducted the prosecution of Lord Mohun for the murder of Mountfort (seeante, p. 60). He became WilliamIII.'s first Lord Keeper in 1692-3, and Lord Chancellor in 1697. During all this time he was one of William's most trusted advisers, and was consulted by him on the most confidential questions relating to foreign policy. He was also familiar with the leading literary and scientific men of his time, being responsible for Addison's pension, and receiving the dedication of theTale of a Tubfrom Swift. He also conferred favours on Rymer and Madox. He resigned the Great Seal in 1700 after a motion for his perpetual exclusion from the presence of the King had been defeated by a small majority in the House of Commons; having already lost the King's confidence by the position he adopted in regard to William's propositions for a standing army, and attracted the hostility of the country partly by his opposition to the bill for the resumption of the grants of forfeited Irish estates. He played a conspicuous part in the reign of Queen Anne as the head of the Whig junto formed at the beginning of that reign, but never resumed office.[33]Sir Nathan Wright (1653-1721), born of an Essex family, was educated at Emmanuel College, and was called in 1677. He was junior counsel for the Crown in the trial of the Seven Bishops, and opened the pleadings. He became Serjeant in 1692. On the retirement of Lord Somers in 1700, a difficulty was found in providing a successor, and eventually the post of Lord Chancellor was offered to, and accepted by, Wright. He enjoyed no reputation, good or bad, as a judge, except that he was very slow, and generally considered unfit for the place. After holding office for five years he was dismissed on the accession to power by the Whigs in 1705. Speaking of his appointment as Lord Chancellor, Lord Campbell says, 'The occasional occurrence of such elevations seems wisely contrived by Providence to humble the vanity of those who succeed in public life, and to soften the mortification of those who fail.'[34]Thomas Lord Trevor (1659?-1730) was the son of a Secretary of State of CharlesII.He was called in 1680, became a bencher in 1689, Solicitor-General in 1692, Attorney-General in 1695. He refused to succeed Lord Somers in 1700; but in 1701 succeeded Sir George Treby as Chief-Justice of the Common Pleas. He was re-appointed by Queen Anne, and was one of the twelve peers created by her in 1711 to create a majority in the House of Lords. He was removed from office in 1714 on the accession of GeorgeI.; but leaving the Tory party, which he had joined in Anne's reign, became Lord Privy Seal in 1726, and President of the Council in 1730, but died six weeks afterwards. He enjoyed a reputation as a good judge; but is chiefly remembered for his proper conduct of Crown prosecutions as Attorney-General after the Revolution.[35]Benefit of clergy was originally the right of the clergy to be exempt from the jurisdiction of the lay courts, and to be handed over to the ordinary to make 'purgation.' This the accused clerk did by swearing to his own innocence and producing twelve compurgators who swore to the same effect. He was then 'usually acquitted' by a jury of twelve clerks; but otherwise he was degraded and put to penance. The right itself was gradually restricted: partly by a construction of the Statute of Westminster the First (1275), by which it was held to be necessary that the clerk should be indicted before he could claim his benefit; partly by the practice prevailing in the time of HenryVI.that he must first be convicted. Meanwhile its scope had been largely increased by its extension in 1360 to all lay clerks, who were taken to mean persons capable of reading. The law, however, which was applicable to the present case depended on two statutes, 4 HenryVII., c. 13, and 18 Elizabeth, c. 7; by the former any person allowed his clergy was to be branded, and was not to be allowed it again unless he was actually in orders; by the latter purgation was abolished, and any person taking benefit of clergy was to be discharged from prison subject to the power of the judge to imprison him for a year. By a statute of EdwardVI.also, a peer ('though he cannot read') was allowed a privilege equivalent to benefit of clergy, but was not to be branded.A certain number of offences were excluded from benefit of clergy during earlier times, and a great number during the eighteenth century, at the beginning of which the privilege was extended to all prisoners. Finally, the system was abolished in 1827. How this system, occupying as it did an important position in the criminal procedure of this country till a comparatively modern date, impresses a lawyer of the present day, may best be described in the words of Sir James Stephen:—'Of this branch of the law, Blackstone characteristically remarks that the English legislature "in the course of a long and laborious process, extracted by noble alchemy rich medicines out of poisonous ingredients." According to our modern views it would be more correct to say that the rule and the exception were in their origin equally crude and barbarous, that by a long series of awkward and intricate changes they were at last worked into a system which was abolished in a manner as clumsy as that in which it was constructed' (History of the Criminal Law, vol. i. p. 458).... 'The result of this was to bring about, for a great length of time, a state of things which must have reduced the administration of justice to a sort of farce. Till 1487 any one who knew how to read might commit murder as often as he pleased, with no other result, than that of being delivered to the ordinary to make his purgation, with the chance of being delivered to himabsque purgatione. That this should have been the law for several centuries seems hardly credible, but there is no doubt that it was. Even after 1487, a man who could read could commit murder once with no other punishment than that of having M. branded on the brawn of his left thumb, and if he was a clerk in orders he could, till 1547, commit any number of murders apparently without being branded more than once' (Ibid., vol. i. p. 462).[36]Convicted felons were incompetent as witnesses till the passing of Lord Denman's Act in 1843.[37]Sir John Hawles (1645-1716) was born in Salisbury of a Dorsetshire family. He was educated at Winchester and Queen's College, Oxford. In 1689 he sat in the House of Commons for Old Sarum; he succeeded Sir Thomas Trevor as Solicitor-General in 1695 and so remained till 1702. He afterwards represented various western boroughs in Parliament, most of them Cornish. He was one of the managers of Sacheverell's impeachment in 1710. He died at Upwinborne.[38]Sir Thomas Powys (1649-1719), of a Shropshire family, was educated at Shrewsbury, and was called in 1673. He became Solicitor-General in 1686, and as a supporter of the dispensing power became Attorney-General in 1687. As such he conducted the prosecution of the Seven Bishops. He frequently appears for the defence in State Trials during the reign of WilliamIII.He represented Ludlow in Parliament from 1701 to 1713, was made a Serjeant at the beginning of Anne's reign, and a Judge of the Queen's Bench in 1713. He was, however, removed from the bench on the accession of GeorgeI.[39]To a modern practitioner to whom benefit of clergy is merely an archæological puzzle, it would seem that the proper argument was that the imprisonment was a punishment, and that as French had not been imprisoned he was quit of the law; but two centuries make a great deal of difference in arguments on points of law.[40]Sir George Treby (1644-1700), the son of a Devon gentleman, entered Exeter College in 1661, and was called in 1671. He represented his native town of Plympton in the House of Commons in both Parliaments in 1679, and was a manager in the impeachment of Lord Stafford. He succeeded Jeffreys as Recorder of London in 1680, but was removed after the success of theQuo Warrantoproceedings. 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 CharlesII.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.

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

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

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

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

[35]Benefit of clergy was originally the right of the clergy to be exempt from the jurisdiction of the lay courts, and to be handed over to the ordinary to make 'purgation.' This the accused clerk did by swearing to his own innocence and producing twelve compurgators who swore to the same effect. He was then 'usually acquitted' by a jury of twelve clerks; but otherwise he was degraded and put to penance. The right itself was gradually restricted: partly by a construction of the Statute of Westminster the First (1275), by which it was held to be necessary that the clerk should be indicted before he could claim his benefit; partly by the practice prevailing in the time of HenryVI.that he must first be convicted. Meanwhile its scope had been largely increased by its extension in 1360 to all lay clerks, who were taken to mean persons capable of reading. The law, however, which was applicable to the present case depended on two statutes, 4 HenryVII., c. 13, and 18 Elizabeth, c. 7; by the former any person allowed his clergy was to be branded, and was not to be allowed it again unless he was actually in orders; by the latter purgation was abolished, and any person taking benefit of clergy was to be discharged from prison subject to the power of the judge to imprison him for a year. By a statute of EdwardVI.also, a peer ('though he cannot read') was allowed a privilege equivalent to benefit of clergy, but was not to be branded.A certain number of offences were excluded from benefit of clergy during earlier times, and a great number during the eighteenth century, at the beginning of which the privilege was extended to all prisoners. Finally, the system was abolished in 1827. How this system, occupying as it did an important position in the criminal procedure of this country till a comparatively modern date, impresses a lawyer of the present day, may best be described in the words of Sir James Stephen:—'Of this branch of the law, Blackstone characteristically remarks that the English legislature "in the course of a long and laborious process, extracted by noble alchemy rich medicines out of poisonous ingredients." According to our modern views it would be more correct to say that the rule and the exception were in their origin equally crude and barbarous, that by a long series of awkward and intricate changes they were at last worked into a system which was abolished in a manner as clumsy as that in which it was constructed' (History of the Criminal Law, vol. i. p. 458).... 'The result of this was to bring about, for a great length of time, a state of things which must have reduced the administration of justice to a sort of farce. Till 1487 any one who knew how to read might commit murder as often as he pleased, with no other result, than that of being delivered to the ordinary to make his purgation, with the chance of being delivered to himabsque purgatione. That this should have been the law for several centuries seems hardly credible, but there is no doubt that it was. Even after 1487, a man who could read could commit murder once with no other punishment than that of having M. branded on the brawn of his left thumb, and if he was a clerk in orders he could, till 1547, commit any number of murders apparently without being branded more than once' (Ibid., vol. i. p. 462).

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

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

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

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

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

[40]Sir George Treby (1644-1700), the son of a Devon gentleman, entered Exeter College in 1661, and was called in 1671. He represented his native town of Plympton in the House of Commons in both Parliaments in 1679, and was a manager in the impeachment of Lord Stafford. He succeeded Jeffreys as Recorder of London in 1680, but was removed after the success of theQuo Warrantoproceedings. 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 CharlesII.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,[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.

Jonesappeared 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 knowI 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.

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 knowI 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, andJonesopened 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 improveor 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 mothercame 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 tothe 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 outmore; 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 pulledout 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.

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 improveor 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 mothercame 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 tothe 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 outmore; 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 pulledout 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 wouldalight? 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.

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 wouldalight? 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 notfind 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.

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 notfind 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.

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 Berrycould 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.

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