FOOTNOTES:

'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 wouldsometimes 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.'

'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 wouldsometimes 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.

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 thisday 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 amYour obliged Friend.'

'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 thisday 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.

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 notknow. 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 toYour very sincere Friend.''For Mrs. Jane Ellen, at Mr. Hargrave's,near Temple-bar, London.'

'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 notknow. 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 nowremembrance, 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.

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 nowremembrance, 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.'

'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 Cowpersaid that about a year and ahalf 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 inpoint 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.'

Bealewas 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.

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. Barefoothad 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 somepreparations 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.'

Spurrproved 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. Stoutwas drowned, he could not, according to the evidence he had just called, have been there.

Sir W. Ashurstsaid it took him half an hour and one minute to walk to the place where the deceased was drowned.Sir T. Lanesaid 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.'

KingettandMan, 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.

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.

Cowperoffered 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.

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. Thompsonwere 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 stayedthere 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.

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.

Huntgave 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.

Hankswas 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.

Rutkinwas 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 weagreed 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.

Marsoncalled 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.

Cowpersaid 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. Daviswas asked by her sister to help herlay 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.

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.

Archerwas 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.

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 Larkinwas 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. Stoutdesired to call witnesses to his sister's reputation; andJonessaid 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 hourreturned 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, andheavily 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, BookIV., 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.

[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, BookIV., 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.

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 beforeSerjeant Michael Foster.[52]The trial was adjourned to the 26th on account of Goodere's health, when there appeared for the prosecutionVernon, and for the prisonerGoodere,ShepardandFrederick. The other prisoners were undefended.

Vernonopened 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 theRubyman-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 theVernon, 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 oneon 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 theRuby. There his brother pretended to the crew that he was a madman, and shut him upin 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.

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

Vernonreplied 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.

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

Chamberlaynwas 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 Smithwas 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 housewhere 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.Smith—After sir John had repeated several stories of this sort, he concluded at last (as I told you before), And why, Mr. Smith, if you ask it of me, I can't refuse. I saw Mr. Goodere soon after, and told him I had seen sir John and talked with him, and he was pleased to tell me, that he would see him, and bid me contrive a convenient place to bring them together. I told Mr. Goodere about the attempt to set aside the recovery. I wonder, said Mr. Goodere, he should mention anything of that, for I can set it aside when I please. I told him, I thought he could not; for, said I, I have a good opinion on it, and am to lend a large sum of money on the Worcestershire estate. He said, I wonder that any body will lend him money on that estate; I am next in remainder, and they will run a risk of losing their money, I do assure you; and he cannot borrow a shilling on it without my consent: but if my brother was reconciled, then, ifwe wanted money, we might do it together, for he cannot secure it alone. He told me, that he should take it as a great favour, if I could fix a time as soon as I could to bring them together. Soon after I saw sir John, and he told me he was very deaf, and was advised to go to Bath, and then appointed to be with me on Tuesday, the 13th of January last, in the morning, when he would talk with me about the business of advancing the money on his estate. After this I saw Mr. Goodere, and told him that I had seen his brother; that he was to be with me on Tuesday, the 13th of January last, and desired him to be in the way, for sir John was always very punctual to his appointment; and if business or anything happened to prevent him he always sent me a letter. Mr. Goodere thanked me, and told me he would be in the way; and on the Tuesday morning sir John came to me on horseback, just alighted and came into my office. I asked him to sit down, which he refused, saying his head was bad; that he must go for Bath, having been advised to go there for some time, and then he did not doubt but he should be better. I told sir John, that his brother knew he was to be in town therefore hoped he would sit down a little, for that I had promised him to bring them together. He said, I can't now, but you shall see me again soon, and then I may do it. I asked him, when shall I see you again, to finish the business you and I are upon? the writings are ready, name your own time, the money will be paid. He appointed to be with me on Monday morning to settle that business; and said, I shall come to town the Saturday or Sunday before, and when I come I will let you know it: he then mounted his horse and rid off.Shortly after (as I was going to the Tolzey) at, or under Blind-gate, I met Mr. Goodere, and told him I was glad to see him and that his brother had been in town. He said he had seen him and thought he looked better than he used to do. I told Mr. Goodere that his brother had appointed to be with me on Monday morning next on business, and I expected him to be in town either the Saturday or Sunday before. I then had many compliments from Mr. Goodere, and he said, how good it would be to make up the matter between him and his brother. I heard nothing of sir John being in town till Sunday the 18th of January last, in the morning, when he sent me a letter to let me know that he came to town the night before, and would be glad to call upon me at any time I would appoint. I sent him for answer, that I was to dine from home, but would return and be at home at three o'clock that afternoon. And as I was passing by, I stopt the coach at captain Goodere's lodgings in Princes Street. I asked if he was at home? Found him alone, and then shewed him sir John's letter. He read it, and asked the time I appointed. I told him three o'clock that afternoon. Said he, I think my brother writes better than he used to do. I said, Mr. Goodere, I think it would be best for you to be accidentally on purpose at that time at my house. No, says he, I don't think that will be so well, I think it would be better for you to send for me. I returned to my house, and my servant told me that sir John had called, and that he would be here again presently. Whilst my servant was telling this, sir John came in; I took him by the hand, and asked him how he did? I thank God, says he, I am something better; and after I have settledthis affair with you, I will go to Bath for some time, and then, I hope, I shall be better. I said, captain Goodere is waiting, I beg you will give me leave to send for him; you know you said you would see him. With all my heart, says sir John, I know I gave you leave. I then sent down a servant to captain Goodere's lodgings, to let him know sir John was with me, and desired him to come up. The servant returned, and said, Here is captain Goodere; on which I said, sir John, please to give me leave to introduce your brother. He gave me leave: captain Goodere came in, went directly and kissed him as heartily as ever I had seen any two persons who had real affection one for the other. I desired them to sit down. Sir John sat on one side of the fire, and captain Goodere on the other, and I sate between them. I called for a table and a bottle of wine, and filling a full glass, I said, sir John, give me leave to drink love and friendship. Ay, with all my heart, says sir John; I don't drink wine, nothing but water; notwithstanding, I wish love and friendship. Captain Goodere filled a bumper, and pledged it, spoke to his brother, and drank love and friendship with his brother's health. We sate some time, all seemed well, and I thought I could have reconciled them. The cork lying out of the bottle, captain Goodere takes up the cork in his hand, put it into the mouth of the bottle and struck it in very hard. I then said, though sir John will not drink wine, you and I will. No, says captain Goodere, I will drink water too, if I drink any more; and there was no more drank. After they had talked several things (particularly captain Goodere of the pleasantness of the situation of the estate in Herefordshire and goodness of the land) in a very pleasantand friendly way, sir John rose up, and said, Mr. Smith, what time would you have me be with you to-morrow morning? I appointed nine o'clock. He said, Brother, I wish you well; then said to me, I will be with you half an hour before. Sir John went down the steps; the captain was following; I stopt him, and said, Pray don't go, captain, let you and I drink a glass of wine. No more now, I thank you, sir, said he. I think, said I, I have done great things for you. He paused a little and said, By God, it will not do; and in a very short time the captain went very nimbly down the steps. I followed him to the door, and observed him to go after sir John down the hill; and before he turned the churchyard wall, to be out of my sight, I observed some sailors come out of the White Hart ale-house, within view of my door, and they ran up to captain Goodere. I heard him say, Is he ready? (I thought he meant the boat), they said, Yes. He bid them make haste. Then they ran very fast towards the lower-green, one of them having a bottle in his hand; captain Goodere went very fast down the hill, and had it not been by mere accident I should have followed him (but some people think it was well I did not), for I promised my wife to return to the house where we dined in Queen's-square, where I went soon after.Mr. Recorder—Mr. Smith, did they all go toward the lower green?Smith—No, Sir; but some towards the butts on St. Augustine's back. Sir John went that way, and captain Goodere followed him; but the men who came out of the ale-house went toward the lower green some of them. About 5 o'clock in the evening, as I was riding up the hill towards the College-green I observed a soldier looked hard at me into the coach, as if he had something to say, and seemed to be in a confusion. I walked into the court, the soldier with me, and then he said, I am informed, Sir, your name is Mr. Jarrit Smith. Yes, says I, it is. (What I am now going to say, Mr. Recorder, is what the soldier told me.) He told me, that as he was drinking with a friend at the King's Head ale-house at the Lime-kilns, he heard a noise, and ran out to see what was the matter, when he saw a person dressed (as he described) like sir John's dress.Vernon—Pray, Sir, how was sir John dressed?Smith—Sir John was dressed in black clothes, he had a ruffled shirt on, a scarlet cloak, a black velvet cap (for the sake of keeping his ears warm) and a broad-brimmed hat flapping. He described this exactly, and told me likewise, that the captain of the man-of-war and his crew had got the person into custody, and by force had put him on board the man-of-war's barge or boat lying near the Slip, by the King's Head; that the gentleman cried out, For God's sake if you have any pity or compassion upon an unfortunate man, go to Mr. Jarrit Smith, and tell him how I am used: and that the captain hearing him cry out, stopt his mouth with his hand.Mr. Recorder—What did the soldier desire of you?Smith—The soldier desired me to enquire into it, for that he did not know the intention of taking off a gentleman in that way.Mr. Recorder—Did you do any thing on that request of the soldier?Smith—Yes, Sir; it immediately occurred to me, that sir John, when he left my house, told me thathe was going to his lodgings. I went to his lodgings (which was at one Mr. Berrow's near the mint), I there asked for him, and related the story I had heard; they told me they had not seen him since he went to my house.Vernon—Mr. Smith, Sir, will you inform us by what name the unfortunate gentleman (you are speaking of) was commonly called?Smith—Sir John Dineley Goodere; his mother was a Dineley, and there came a great estate from her side to him, which occasioned his being called by the name of Dineley.Vernon—When sir John went from your house on Tuesday, was he alone, or had he any attendants with him?Smith—Sir John was well guarded; he had pistols, and I think his servant had pistols also.Vernon—I think you told us but now, that sir John was to be with you on Sunday; pray, when did you let Mr. Goodere know it, Sir?Smith—I met captain Goodere that very day at Blind-gate, and told him of it; and he said, he had met his brother himself.Vernon—Pray, Sir, did Mr. Goodere tell you, to whom the estate would go on sir John's death?Smith—Yes, he has often said he was the next remainder man, and that the estate would come to himself on his brother's death.Mr. Recorder—Well, Mr. Goodere, you have heard what Mr. Smith hath said, have you any questions to ask him?Mr. Shepard—Mr. Recorder, what I have to ask of you, with submission, in behalf of Mr. Goodere, is, that you will indulge counsel to put his questionsfor him to the Court, and that the Court will then be pleased to put them for him to the witnesses. It is every day's practice at the courts of Westminster, Old Bailey, and in the Circuit.

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.

Smith—After sir John had repeated several stories of this sort, he concluded at last (as I told you before), And why, Mr. Smith, if you ask it of me, I can't refuse. I saw Mr. Goodere soon after, and told him I had seen sir John and talked with him, and he was pleased to tell me, that he would see him, and bid me contrive a convenient place to bring them together. I told Mr. Goodere about the attempt to set aside the recovery. I wonder, said Mr. Goodere, he should mention anything of that, for I can set it aside when I please. I told him, I thought he could not; for, said I, I have a good opinion on it, and am to lend a large sum of money on the Worcestershire estate. He said, I wonder that any body will lend him money on that estate; I am next in remainder, and they will run a risk of losing their money, I do assure you; and he cannot borrow a shilling on it without my consent: but if my brother was reconciled, then, ifwe wanted money, we might do it together, for he cannot secure it alone. He told me, that he should take it as a great favour, if I could fix a time as soon as I could to bring them together. Soon after I saw sir John, and he told me he was very deaf, and was advised to go to Bath, and then appointed to be with me on Tuesday, the 13th of January last, in the morning, when he would talk with me about the business of advancing the money on his estate. After this I saw Mr. Goodere, and told him that I had seen his brother; that he was to be with me on Tuesday, the 13th of January last, and desired him to be in the way, for sir John was always very punctual to his appointment; and if business or anything happened to prevent him he always sent me a letter. Mr. Goodere thanked me, and told me he would be in the way; and on the Tuesday morning sir John came to me on horseback, just alighted and came into my office. I asked him to sit down, which he refused, saying his head was bad; that he must go for Bath, having been advised to go there for some time, and then he did not doubt but he should be better. I told sir John, that his brother knew he was to be in town therefore hoped he would sit down a little, for that I had promised him to bring them together. He said, I can't now, but you shall see me again soon, and then I may do it. I asked him, when shall I see you again, to finish the business you and I are upon? the writings are ready, name your own time, the money will be paid. He appointed to be with me on Monday morning to settle that business; and said, I shall come to town the Saturday or Sunday before, and when I come I will let you know it: he then mounted his horse and rid off.Shortly after (as I was going to the Tolzey) at, or under Blind-gate, I met Mr. Goodere, and told him I was glad to see him and that his brother had been in town. He said he had seen him and thought he looked better than he used to do. I told Mr. Goodere that his brother had appointed to be with me on Monday morning next on business, and I expected him to be in town either the Saturday or Sunday before. I then had many compliments from Mr. Goodere, and he said, how good it would be to make up the matter between him and his brother. I heard nothing of sir John being in town till Sunday the 18th of January last, in the morning, when he sent me a letter to let me know that he came to town the night before, and would be glad to call upon me at any time I would appoint. I sent him for answer, that I was to dine from home, but would return and be at home at three o'clock that afternoon. And as I was passing by, I stopt the coach at captain Goodere's lodgings in Princes Street. I asked if he was at home? Found him alone, and then shewed him sir John's letter. He read it, and asked the time I appointed. I told him three o'clock that afternoon. Said he, I think my brother writes better than he used to do. I said, Mr. Goodere, I think it would be best for you to be accidentally on purpose at that time at my house. No, says he, I don't think that will be so well, I think it would be better for you to send for me. I returned to my house, and my servant told me that sir John had called, and that he would be here again presently. Whilst my servant was telling this, sir John came in; I took him by the hand, and asked him how he did? I thank God, says he, I am something better; and after I have settledthis affair with you, I will go to Bath for some time, and then, I hope, I shall be better. I said, captain Goodere is waiting, I beg you will give me leave to send for him; you know you said you would see him. With all my heart, says sir John, I know I gave you leave. I then sent down a servant to captain Goodere's lodgings, to let him know sir John was with me, and desired him to come up. The servant returned, and said, Here is captain Goodere; on which I said, sir John, please to give me leave to introduce your brother. He gave me leave: captain Goodere came in, went directly and kissed him as heartily as ever I had seen any two persons who had real affection one for the other. I desired them to sit down. Sir John sat on one side of the fire, and captain Goodere on the other, and I sate between them. I called for a table and a bottle of wine, and filling a full glass, I said, sir John, give me leave to drink love and friendship. Ay, with all my heart, says sir John; I don't drink wine, nothing but water; notwithstanding, I wish love and friendship. Captain Goodere filled a bumper, and pledged it, spoke to his brother, and drank love and friendship with his brother's health. We sate some time, all seemed well, and I thought I could have reconciled them. The cork lying out of the bottle, captain Goodere takes up the cork in his hand, put it into the mouth of the bottle and struck it in very hard. I then said, though sir John will not drink wine, you and I will. No, says captain Goodere, I will drink water too, if I drink any more; and there was no more drank. After they had talked several things (particularly captain Goodere of the pleasantness of the situation of the estate in Herefordshire and goodness of the land) in a very pleasantand friendly way, sir John rose up, and said, Mr. Smith, what time would you have me be with you to-morrow morning? I appointed nine o'clock. He said, Brother, I wish you well; then said to me, I will be with you half an hour before. Sir John went down the steps; the captain was following; I stopt him, and said, Pray don't go, captain, let you and I drink a glass of wine. No more now, I thank you, sir, said he. I think, said I, I have done great things for you. He paused a little and said, By God, it will not do; and in a very short time the captain went very nimbly down the steps. I followed him to the door, and observed him to go after sir John down the hill; and before he turned the churchyard wall, to be out of my sight, I observed some sailors come out of the White Hart ale-house, within view of my door, and they ran up to captain Goodere. I heard him say, Is he ready? (I thought he meant the boat), they said, Yes. He bid them make haste. Then they ran very fast towards the lower-green, one of them having a bottle in his hand; captain Goodere went very fast down the hill, and had it not been by mere accident I should have followed him (but some people think it was well I did not), for I promised my wife to return to the house where we dined in Queen's-square, where I went soon after.

Mr. Recorder—Mr. Smith, did they all go toward the lower green?

Smith—No, Sir; but some towards the butts on St. Augustine's back. Sir John went that way, and captain Goodere followed him; but the men who came out of the ale-house went toward the lower green some of them. About 5 o'clock in the evening, as I was riding up the hill towards the College-green I observed a soldier looked hard at me into the coach, as if he had something to say, and seemed to be in a confusion. I walked into the court, the soldier with me, and then he said, I am informed, Sir, your name is Mr. Jarrit Smith. Yes, says I, it is. (What I am now going to say, Mr. Recorder, is what the soldier told me.) He told me, that as he was drinking with a friend at the King's Head ale-house at the Lime-kilns, he heard a noise, and ran out to see what was the matter, when he saw a person dressed (as he described) like sir John's dress.

Vernon—Pray, Sir, how was sir John dressed?

Smith—Sir John was dressed in black clothes, he had a ruffled shirt on, a scarlet cloak, a black velvet cap (for the sake of keeping his ears warm) and a broad-brimmed hat flapping. He described this exactly, and told me likewise, that the captain of the man-of-war and his crew had got the person into custody, and by force had put him on board the man-of-war's barge or boat lying near the Slip, by the King's Head; that the gentleman cried out, For God's sake if you have any pity or compassion upon an unfortunate man, go to Mr. Jarrit Smith, and tell him how I am used: and that the captain hearing him cry out, stopt his mouth with his hand.

Mr. Recorder—What did the soldier desire of you?

Smith—The soldier desired me to enquire into it, for that he did not know the intention of taking off a gentleman in that way.

Mr. Recorder—Did you do any thing on that request of the soldier?

Smith—Yes, Sir; it immediately occurred to me, that sir John, when he left my house, told me thathe was going to his lodgings. I went to his lodgings (which was at one Mr. Berrow's near the mint), I there asked for him, and related the story I had heard; they told me they had not seen him since he went to my house.

Vernon—Mr. Smith, Sir, will you inform us by what name the unfortunate gentleman (you are speaking of) was commonly called?

Smith—Sir John Dineley Goodere; his mother was a Dineley, and there came a great estate from her side to him, which occasioned his being called by the name of Dineley.

Vernon—When sir John went from your house on Tuesday, was he alone, or had he any attendants with him?

Smith—Sir John was well guarded; he had pistols, and I think his servant had pistols also.

Vernon—I think you told us but now, that sir John was to be with you on Sunday; pray, when did you let Mr. Goodere know it, Sir?

Smith—I met captain Goodere that very day at Blind-gate, and told him of it; and he said, he had met his brother himself.

Vernon—Pray, Sir, did Mr. Goodere tell you, to whom the estate would go on sir John's death?

Smith—Yes, he has often said he was the next remainder man, and that the estate would come to himself on his brother's death.

Mr. Recorder—Well, Mr. Goodere, you have heard what Mr. Smith hath said, have you any questions to ask him?

Mr. Shepard—Mr. Recorder, what I have to ask of you, with submission, in behalf of Mr. Goodere, is, that you will indulge counsel to put his questionsfor him to the Court, and that the Court will then be pleased to put them for him to the witnesses. It is every day's practice at the courts of Westminster, Old Bailey, and in the Circuit.

Vernonreplied that the matter was entirely in the discretion of the Court, and that Shepard could ask for nothing as a matter of right.

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