UCSB LIBRARY 
 
 ,
 
 A COLLECTION 
 
 OF 
 
 REPORTS 
 
 CIVIL AND CEIMINAL, 
 
 EDITED, 
 
 WITH INTRODUCTIONS AND NOTES, 
 
 ATTOKNEY-AT-I-A-W. 
 
 VOL. I. 
 
 LONDON : 
 SHAW AND SONS, FETTER LANE, 
 
 JUto 
 
 1873.
 
 LONDON : FEINTED BY SHAW AND SONS, FETTEE LANE.
 
 CONTENTS OF VOL. I. 
 
 PAGE 
 
 The Trial of Abraham Thornton for the Murder of Mary Ashford 1 
 
 The Appeal of Murder and Wager of Battel : William Ashford 
 
 v. Abraham Thornton 39 
 
 The Trial of Josiah Phillips for a Libel on the Duke of Cumberland, 
 
 arising out of the Sellis Case ------ 75 
 
 The Trial of the Action Smyth v. Smyth, relating to the Ashton 
 
 Estates - 115 
 
 The Trial of the Rev. William Bailey, LL.D., for Forgery - - 147 
 
 The Trial of John Tawell for Poisoning 162 
 
 The Trial of Frere Leotade 205
 
 PEEFAOE. 
 
 MY object in preparing this volume of Reports is simply to 
 present for the use of the Profession generally, in a convenient 
 form, a Collection of some of the more important and 
 interesting Trials of modern date. It is well known that 
 there is no publication now in existence which exactly 
 carries out this object. The result is, that if a trial be not 
 published in a separate form at the time, it is afterwards 
 practically inaccessible to any one who for professional or 
 other purposes may be desirous of referring to it. Even when 
 published separately, the Reports are often, after the lapse 
 of a few years, very difficult to meet with, and expensive to 
 purchase. The plan of this work is, therefore, to collect 
 together some of those trials now either scattered abroad in 
 a separate form, and long since out of print, or not reported 
 at all. 
 
 In dealing with the Trials thus collected I have endeavoured, 
 whilst eliminating everything that is irrelevant, to preserve 
 almost entire the evidence touching on the main points of 
 the case. Where there have been more than one report I 
 have carefully compared and collated the different accounts 
 together, sifting and condensing the evidence so as to bring 
 the case within a reasonable compass. In this I have 
 experienced the greatest difficulty. To have made the pre- 
 sent volume three times its size, inserting only the same 
 Trials, would have been a comparatively easy task : to
 
 VI PREFACE. 
 
 condense it, and whilst retaining what is essential, reject 
 all immaterial parts, has been a work of much labour. This 
 particularly applies to the Case of the Wager of Battel, 
 the Trial of Smyth v. Smyth, and especially to the Case of 
 Ltotade, now, I believe, first published in an English form. 
 
 Whilst endeavouring thus to make these Reports strictly 
 accurate, I have also endeavoured to make them, to some 
 extent at least, interesting. Therefore, several pieces of evi- 
 dence, observations of counsel, passages between Judge and 
 Prisoner (as in the case of Leotade), and other matters not 
 strictly material to the point at issue, yet enlivening the Trial, 
 have been retained either in the evidence itself, or inserted 
 in the Introduction. A bare legal Report of a Trial, containing 
 merely sufficient evidence on which to form an opinion, 
 would, without these loci l&tiores, be found, though perhaps 
 a useful, yet a very uninteresting work. 
 
 In venturing to submit this Collection to the perusal of 
 the public I do so with much diffidence. I know that I 
 am treading upon ground, not on which others have feared 
 to tread, but which has been already occupied by abler 
 writers. To follow in the steps of Mr. Serjeant BURKE 
 Mr. TOWNSEND, Q.C., and Mr. BURTON, is not easy. I wish 
 it therefore to be understood that I have no intention of 
 laying claim to the powers which these writers possess of 
 dealing with subjects similar to the ones which I am now 
 attempting to treat. My object is simply to produce a 
 tolerably accurate Report of Trials, which may probably not 
 be either uninteresting or uninstructive to the members of 
 the Profession to which I have the honour to belong, and 
 for whose use more especially it is written. 
 
 In concluding these remarks I gladly take the opportunity 
 of thanking those gentlemen who have so kindly placed 
 at my disposal the briefs and papers relating to some of the 
 Cases reported, and who have otherwise afforded me much 
 assistance and encouragement. I particularly wish to
 
 PREFACE. Vll 
 
 acknowledge my obligation in this respect to Mr. SPENCER, 
 Solicitor, of Birmingham, Mr. SADLER, Solicitor, of Suttoii 
 Coldfield, and Mr. HOLBECHE, of Sutton Coldfield. These 
 gentlemen, who now represent the firms which were engaged 
 on one side or the other in the Case of Thornton and the 
 Wager of Battel very obligingly put in my hands all the 
 papers in their possession relating to those Cases. To 
 Mr. WILLIAM BEVAN, Solicitor, Old Jewry, I am also under 
 considerable obligation for the loan of several very interesting 
 reports and papers relating to the Case of Tawell ; and also 
 for information connected with the Case of much importance 
 and interest, of which, however, I regret I did not feel able 
 to avail myself more fully. "Whatever doubt might have been 
 felt at the time as to Tawell's guilt was removed by the con- 
 fession he made after conviction. I therefore did not think it 
 necessary to enter upon any discussion as to the correctness 
 of the medical evidence furnished on behalf of the prose- 
 cution. To those to whom the secret of Tawell's confession 
 has been confided, the perfect accuracy of some portions at 
 least of this evidence may perhaps be questionable, but no 
 doubt upon this point can at all affect the question of his 
 guilt. For this reason I have not thought it expedient to 
 enter on any inquiry on the subject, or to reveal the details 
 of that confession which Tawell requested should not be 
 made public. 
 
 August 21st, 1873.
 
 NOTE ON THE CASE OF TAWELL. 
 
 At page 164 it is stated that Tawell at the time of the 
 forgery of the bank notes was a member of the Society of 
 Friends. I have been informed since this work was printed 
 that Tawell was " disowned " on the 7th of February, 1809, 
 " for having been married by a priest, and also for very 
 disorderly and immoral conduct." I gladly avail myself of 
 the opportunity of correcting this error, more especially as 
 I believe it to be one largely shared in by the public. The 
 general impression indeed seems to be that as late as the 
 time of the murder in 1845 Tawell was a Quaker.
 
 AAA fiwtsAyir t>/' J/wi . /r/i/cvi/ Jf- 7/urn/Wi 
 
 BB B Tkaratnu /wMeps, supposed ta 
 
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 THOR?TTO1V'S CAST:.
 
 THE TRIAL 
 
 OP 
 
 ABRAHAM THORNTON 
 
 FOB THE MUKDEK OF MARY ASHFOKD, 
 AT THE WARWICK SUMMER ASSIZES, 
 
 BEFORE MB. JUSTICE HOLBOYD, 
 
 Oil August 8th, 1817. 
 
 Counsel for the Prosecution : Mr. Clarke, Mr. Serjeant Copley, 
 and Mr. Perkins. 
 
 For the Prisoner : Mr. Reader and Mr. Reynolds. 
 
 INTRODUCTION. 
 
 THERE has probably been no case in the criminal records of 
 this country, during the present century, that has attracted 
 so universally the public attention as the case of Abraham 
 Thornton. Its chief interest is, however, derived not from 
 the trial itself, but from the subsequent proceedings in the 
 King's Bench, after Thornton, notwithstanding his acquittal, 
 had been arrested a second time on the obsolete writ of 
 Appeal of Murder, and it is more especially by way of intro- 
 duction to those proceedings that the following Report of the 
 trial is here given : 
 
 On the evening of the 26th of May, 1817, the deceased, 
 Mary Ashford, accompanied by a friend of her's, Hannah 
 Cox, went to a dance at a public-house called Tyburn, not far 
 from Erdington, a village a few miles distant from Birming- 
 ham. The prisoner Thornton was at the dance ; and about 
 half-past eleven, or from that to twelve, he and the deceased 
 left the house, and went together along the highroad in the 
 direction in which Mary Ashford resided. They were left 
 together on the highroad about midnight. From that time
 
 6 TRIAL OF ABRAHAM THORNTON. 
 
 until near three o'clock in the morning nothing was seen of 
 them ; but a little before three, a man named Umpage, on his 
 way home, came across the prisoner, whom he knew, and a 
 woman, whom he could not recognise, but who was, beyond 
 all doubt, the deceased, at a stile leading into Bell Laue. 
 Near this stile was a harrowed field, through which it was 
 proved Thornton and Mary Ashford had been in the course 
 of the night, and in which footsteps, undoubtedly those of 
 the deceased and Thornton, were afterwards traced. 
 
 Nothing was seen of Thornton after this for some time ; 
 but Mary Ashford was traced to her friend's, Hannah Cox's, 
 house in Erdington, alone, where she changed her clothes. 
 She left Cox's at about fourteen minutes past four in the 
 morning, and went up Bell Lane ; and was last seen alive 
 going in the direction of the harrowed field where the foot- 
 steps were found, at about eighteen minutes past four. She 
 had then some way to go to the spot where her body was 
 afterwards found in a pit of water ; and in all probability 
 she could not reach the pit until half-past four at the earliest. 
 Her body was discovered in the pit about half-past six. 
 
 The theory of the prosecution was, that Thornton waylaid 
 Maiy Ashford on her way home from Cox's, and assaulted 
 her : that she fainted ; and that he then threw her body into 
 the pit. In support of this it was sought to prove, from the 
 footmarks in the field, that Thornton had chased, and had 
 ultimately overtaken the deceased, and then violated her, not 
 far from the pit. There was undoubtedly the impress of 
 a human figure on the grass near the pit, and blood was 
 traced from it, Avithout any footmarks, close up to the edge 
 of the pit. It was inferred from this that Thornton had 
 carried Mary Ashford in his arms, and had then thrown her 
 into the water. 
 
 Allowing the least possible time for the commission of the 
 crime, the deceased having been last seen alive at about 
 eighteen minutes past four, and then having some distance to 
 go, she could not have met with her death before half-past 
 four, but in all probability not until a quarter to five. At 
 half-past four, however, the prisoner was indisputably proved 
 to have been seen at a distance from the pit, in a straight 
 line, of one mile and a half; but by the nearest road, of two 
 miles and a quarter. He was calm, and did not seem as if
 
 TRIAL OF ABRAHAM THORNTON. 3 
 
 he had been running. On being apprehended, he admitted 
 being with the deceased until four in the morning, and that he 
 had been intimate with her, but, as he asserted, with her 
 consent. On this evidence he was, without any hesitation, 
 committed for trial on the Coroner's Inquisition for Murder. 
 
 THE trial took place before Mr. Justice HOLROYD on the 8th 
 of August, 1817, at Warwick. The indictment consisted 
 of two counts. The first charged the prisoner with 
 having on the 27th of May, 1817, in the royal town, 
 manor, and lordship of Sutton Coldfield, in the county of 
 Warwick, not having the fear of God before his eyes, but 
 being moved by the instigation of the devil, wilfully murdered 
 Mary Ashford, by throwing her into a pit of water. The 
 second count charged him with having on the morning afore- 
 said committed a rape upon the body of the said Mary 
 Ashford. To both counts the prisoner pleaded not guilty. 
 
 Mr. CLARKE, the senior counsel, then rose and addressed 
 the jury in a short and temperate speech. He said : " I am 
 of counsel for the prosecution ; and by the indictment, 
 which has just now been read to you by the officer of the 
 court, the prisoner at the bar is charged with one of the 
 highest offences that human nature is capable of commit- 
 ting ; nothing less than shedding the blood of a fellow- 
 creature. I need not enlarge upon this subject ; the crime 
 itself is incapable of aggravation. It is my painful pro- 
 vince, however, to lay before you a statement of the 
 evidence which will be produced in support of that charge ; 
 and, as it is not my duty, so neither is it my inclination, to 
 exaggerate anything upon this occasion ; but public justice 
 requires that the whole proof should be brought fully and 
 fairly before you. Gentlemen, the deceased was a young 
 girl of the most fascinating manners, of lovely person, in 
 the bloom and prime of life, and living for some length of 
 time under the protection of her uncle, a small farmer 
 residing at Langley, in this county, and was well-known and 
 well-respected in the village of Erdington.. The unfortunate 
 young woman went, on the 26th, from her uncle's at 
 Langley, where she lived, to Birmingham. On her way 
 
 B2
 
 4 TRIAL OF ABRAHAM THORNTON. 
 
 she called upon Hannah Cox, at Erdington, and arranged 
 that she should be back early in the evening, to go to 
 a dance at Tyburn. This was an annual feast, and a dance 
 always followed. She was not in the habit of attending 
 dances, but she did attend at this dance. The prisoner was 
 there, admired the figure and general appearance of Mary 
 Ashford, and was heard to say, 'I have been intimate (I 
 won't use the coarse expression he made use of) with her 
 sister, and I will be intimate with her, though it should 
 cost me my life.' He accompanied her from the dancing- 
 room, and was seen with her at a stile, about three in the 
 morning. At four she called at her friend Cox's, and was 
 calm, composed, and in good spirits. On her leaving 
 Erdington at this time, between four and five in the morn- 
 ing of the 27th, the fatal deed was done which now forms 
 the subject of inquiry. Gentlemen, it will be shown to you 
 that the footsteps of a man and a woman were traced from 
 the path, through a harrowed field by which she was going 
 towards Langley. These footmarks exhibit proofs of run- 
 ning, chasing, and struggling. They at length led to a spot 
 where a distinct impression of the human figure was found, 
 and a large quantity of coagulated blood was also discovered ; 
 in the same place were seen the marks of a man's knees and 
 toes. From that spot the blood was distinctly traced for a 
 considerable space on the grass ; consequently, had any foot 
 gone along there, the dew would have been brushed away. 
 It appeared plainly as if a man had walked along the foot- 
 Avay carrying a body, from the extremity of which the blood 
 dropped upon the grass. At the edge of the pit her shoes, 
 her bonnet, and her bundle, were found, but only one foot- 
 step could be seen there, and that was a man's. It was 
 deeply impressed, and seemed to be that of a man who 
 thrust one foot forward to heave the body he had in his arms 
 into the pit. When her body was examined there were 
 marks of laceration upon it, and both her arms had the 
 visible mark of hands, as if he had pressed them with 
 violence to the ground. In her stomach some duck-weeds 
 were found, which proved that she had breathed after she 
 had been thrown into the water ; but the small quantity 
 merely shows that she had not previously been quite dead.
 
 TRIAL OF ABRAHAM THORNTON. U 
 
 The evidence of a skilful surgeon will show that down to this 
 violation she had been a virgin. It is therefore natural to 
 suppose that the violent agitation and outrageous injury of 
 such an assault stunned her, and deprived her of animation 
 for the moment ; that in this state she was thrown into the 
 water ; and the animation restored for a moment was 
 instantly cut off by drowning. Hitherto, however, the 
 prisoner is not connected with the act ; but you will not 
 only find him with her at three o'clock, but you will also 
 find, by his own admission, that he was with her at four. 
 You will find the marks of a man's shoes in the running and 
 struggling correspond exactly to his. You will find, by his 
 own admission, that he was intimate with her ; and this 
 admission made not before the magistrate, and never till the 
 evident proofs were discovered on his clothes. Her clothes, 
 too, afford most powerful evidence. At her friend Cox's, at 
 four in the morning, she put off her dancing-dress, and put 
 on the dress in which she had gone to Birmingham. The 
 clothes she put on there, and which she had on at the time of 
 her death, are all over bloody and dirtied. The surgeon will 
 tell you that the coagulated blood could not have proceeded 
 except from violence. Therefore, the case appears to have 
 been that he paid attention to her during the night ; showing, 
 perhaps, those attentions which she might naturally have 
 been pleased with, and particularly from one her superior in 
 life ; but that afterwards he waited for her on her return 
 from Erdington, and first forcibly violated her, and then 
 threw her apparently lifeless body into the pit. It will be 
 attempted to show you that he returned home, and that 
 some other person must have met her and brought her to the 
 dismal end she met with. But, gentlemen, as footsteps were 
 traced through the harrowed field to a stile leading to his 
 father's by the very course he took, and he admits an 
 intimacy with her, that is a circumstance of the utmost 
 importance, and you will bear in mind that he did not admit 
 this till the proofs were adduced against him. [Here 
 Mr. READER expostulated with Mr. CLARKE for making such 
 observations.] Gentlemen, the evidence will be laid before 
 you ; from it you will form your judgment, and I desire you 
 to lay out of view everything I may have said, unless it shall
 
 TRIAL OF ABRAHAM THORNTON. 
 
 be confirmed by the learned judge who presides at this 
 trial." 
 
 Hannah Cox was then sworn and examined by Mr. Serjeant 
 COPLEY. She said : " I lived in the service of Mr. Machell, 
 of Erdington, in the month of May last. I slept at my mother- 
 in-law's, Mrs. Butler, on the morning of the 27th; her house is 
 nearly opposite to my master's. I was acquainted with Mary 
 Ashford ; she lived with her uncle at Langley Heath, about 
 three miles from Erdington. I know her grandfather very 
 well ; he lives in the same parish, at the top of Bell Lane, 
 against Mr. Freeman's. I remember Mary Ashford coming 
 to Erdington on the morning of Monday, the 26th of May. 
 She called on me at Mr. Machell's about ten o'clock, on her 
 road to Birmingham market. She had a bundle with her, 
 and said she was going to Birmingham market. In the 
 bundle were a clean frock, a white spencer, and a pair of 
 white stockings. The deceased was dressed in a pink cotton 
 frock or gown, a straw bonnet with straw-coloured ribbons, 
 a scarlet spencer, half-boots, and black stockings. I went 
 with her to Mrs. Butler's to leave the bundle. The deceased 
 then went to Birmingham, having first agreed that she and I 
 should go together that night to Daniel Clarke's, at Tyburn 
 House, to a dance. The deceased returned about six o'clock 
 in the evening, and called on me at Machell's. I went with 
 her to Mrs. Butler's, where she put on the clean dress she 
 had left there in the morning, and a new pair of shoes, 
 which I bought for her at a shoemaker's at Erdington in the 
 course of the day. The clothes she pulled off she made up 
 into a bundle and left at Butler's. We set off for Tyburn 
 between seven and eight o'clock. The dance was at a 
 public-house there, kept by Mr. Daniel Clarke. Tyburn is 
 about two miles from Erdington, and by the side of the 
 turnpike road. I did not pass the whole of the evening in 
 the dancing-room ; I might be in the room about a quarter 
 of an hour. Whilst I was there I saw Mary Ashford 
 dancing, but do not recollect that I saw the prisoner there. 
 
 1 left the public-house alone between eleven and twelve 
 o'clock. Mary Ashford was at the room door when I was 
 going ; she told me she would not be long before she would 
 follow me. I walked to the bridge, Avhich is but a short
 
 TRIAL OF ABRAHAM THORNTON. 7 
 
 distance from Clarke's, and waited for her there some 
 length of time. Whilst I was standing on the bridge 
 Benjamin Carter came to me. I sent him back for Mary 
 Ashford, who came soon after, in company with the prisoner 
 Thornton. All four of us then proceeded towards Erdington. 
 The prisoner and Mary Ashford went on first ; Carter 
 remained talking with me a few minutes, and I then 
 followed them. About ten minutes afterwards Carter over- 
 took me ; he continued with me a short time, and then said 
 he would go back to the dance. Upon leaving Carter I 
 walked on and joined Mary Ashford and the prisoner, and 
 parted with them between Reeves' s and the Old Cuckoo, a 
 little before you come to the road on the left which leads to 
 Erdington. I did not go with them to the place where the 
 road separates, but very near it. I walked on first, and 
 took the road to the left of a house called Loars, and I then 
 left them and went home to my mother's to bed." 
 
 Were you called up again at any time in the course of 
 the morning? Yes. Who called you up? Mary Ashford. 
 You got up and let her into your mother's house ? Yes. 
 Do you know what time it was ; did you look at the clock ? 
 Yes ; it was twenty minutes before five. Do you know 
 whether the clock was right ; that is, how was your mother's 
 clock by the other clocks in the neighbourhood ? The clock 
 was too fast. Was the deceased in the same dress then as 
 she had on overnight ? Yes. Did you perceive any agita- 
 tion or confusion in the person of the deceased ? No. 
 Neither her person nor her dress were disordered? Not 
 that I saw. The deceased appeared very calm and in good 
 spirits ? Yes. The deceased did not go into another room 
 to change her dress, did she ; she remained in the house all 
 the time, and you stayed with her ? Yes. What did the 
 deceased do with the clothes she took off? She tied them 
 up in a bundle along with some market things ; she wrapped 
 the boots in a handkerchief, and kept on her shoes. The 
 deceased had some market things, had she? Yes; some 
 sugar and other things which she brought from Birmingham 
 market the day before. How long was the deceased in the 
 house altogether ? She might be in the house a quarter of 
 an hour, but I cannot exactly say. The deceased then went
 
 8 TRIAL OF ABRAHAM THORNTON. 
 
 away, and you saw no more of her ? Yes. What situation 
 was the deceased in when she changed her clothes ; did she 
 sit down on a chair? No; she stood up. Did the deceased 
 stand up whilst she pulled off her stockings ? Yes. Did the 
 deceased do anything more in the house ? She did nothing 
 more than change her dress. Did you observe that the de- 
 ceased's frock was stained ? No ; but I did not take much 
 notice of it. Did the deceased tell you she had any complaint 
 upon her ? No, she did not. 
 
 In cross-examination by Mr. READER on behalf of the 
 prisoner, the witness said she was very intimate with the 
 deceased, and that she (deceased) was about twenty years old. 
 She knew the father of the deceased ; he was a gardener, 
 and resided at Erdington. Her grandfather lived near Bell 
 Lane, about two or three miles off. The place where the 
 prisoner and the deceased parted from her the night before 
 was about two or three miles off witness's own home. 
 The pit where the body was found was about three or four 
 hundred yards from the deceased's grandfather's. When 
 the deceased called her up in the morning she said she had 
 slept at her grandfather's. Did you say anything to the 
 deceased, when she had called you up, about the prisoner ? 
 I asked her what had become of him. What answer did 
 she make ? She said he was gone home. 
 
 On re-examination by Mr. Serjeant COPLEY, witness 
 said she knew her mother's clock was too fast when the 
 deceased came to her mother's house. She could not tell 
 exactly what time it was, but she thought it wanted about 
 twenty minutes to five. She did not observe anything par- 
 ticular about the deceased's dress. 
 
 Benjamin Carter was then called, and in reply to Mr. 
 PERKINS, he said : " I am a farmer, and live with my father 
 at Erdington. On the night of the 26th May I was in the 
 room at Tyburn House where the dance was. I saw the 
 deceased and the prisoner dancing together. I left the 
 house between eleven and twelve, and went to the bridge out- 
 side the house to Hannah Cox. I stayed there with her 
 about a quarter of an hour. Hannah Cox desired me to go 
 back and fetch the deceased. I went, and found the 
 deceased and prisoner dancing together. I spoke to Mary
 
 TEIAL OF ABRAHAM THORNTON. 9 
 
 Ashford, and went hack to the bridge. In about a quarter of 
 an hour Mary Ashford and Thornton came to us. I went with 
 them a little way towards home, and then turned back 
 towards Tyburn House. I afterwards overtook them all 
 deceased, prisoner, and Hannah Cox again between Mr. 
 Reeves's and Mr. Potter's, I then parted with Hannah 
 Cox ; she went off another road to go home. I went on 
 with the prisoner and the deceased to the turn in the road, 
 and then went home. I saw no more of them that night." 
 
 Having thus laid before the jury evidence to show that the 
 prisoner and the deceased went from the dance together on 
 the night in question, and were left alone near midnight 
 on the highroad leading to the deceased's residence, Mr. 
 CLARKE then brought the case one step nearer home to the 
 prisoner by proving that from that time up to near three in 
 the following morning the prisoner and deceased were 
 together wandering about the fields. The witness John 
 Hompidge, or Umpage, who proved this, is one of the most 
 important witnesses called during the course of the trial. 
 His evidence was much relied upon, not only by the prosecu- 
 tion, but also by the prisoner. 
 
 In reply to Mr. CLARKE, he stated : " I live at Witton, 
 near Erdington, in the parish of Aston. I remember being 
 in Mr. Reynolds's house at Penns on Tuesday morning, the 
 27th May last, in the lower part of the house. "Whilst I 
 was there sitting in the house I heard somebody talking. 
 It was about two o'clock, or a little after, when I first 
 heard the talking. I continued to hear the talking until a 
 few minutes before I started to go home. I left for home 
 about a quarter before three. When I first got out of doors 
 I did not see anybody, but when I had passed along the 
 footpath over the fields to the 'fore-drove' leading into 
 Bell Lane I saw a man and a woman at a stile at the 
 bottom of the ' fore-drove.' Bell Lane leads to Erdington. 
 When I got up to the stile I knew the man to be the 
 prisoner. I had known him before. I bid him good 
 morning, and he said good morning to me. I did not know 
 who the woman was. I did not see her face ; she held her 
 head down so that I could not see it. I left them both 
 sitting against the stile."
 
 10 TRIAL OF ABRAHAM THORNTON. 
 
 On cross-examination by Mr. REYNOLDS, he said: "I know 
 the pit where the body was afterwards found. It is about 
 100 yards from Reyriolds's house. There is another house 
 in the neighbourhood nearly adjoining the close. I 
 went out of the house a quarter before three. I came 
 within about 100 yards of the persons at the stile before 
 I saw them." 
 
 The next witness, a man named Thomas Aspree, proved 
 seeing the deceased going towards Erdington alone. It is 
 material here to observe that the prosecution never were 
 able to trace Thornton after this. The witnesses who next 
 saw him were his own, and called on his behalf. 
 
 Aspree said : " I live at Erdington. On the 27th of May 
 I was going to Great Barr, passing by Mr. Greensall's house. 
 I crossed Bell Lane, leaving Erdington on my left and Bell 
 Lane on the right, by Greensall's house. On the right in 
 Bell Lane there is a horse-pit. I saw Mary Ashford against 
 the horse-pit, going towards Erdington ; she was walking 
 very fast. It was about half-past three. She was quite 
 alone. I looked up Bell Lane in the direction from which 
 she was coming, and I saw no other person." 
 
 Cross-examined by Mr. READER. " She was going towards 
 Mrs. Butler's house. That will be about a quarter of a mile 
 distant. I saw no other person." 
 
 In answer to Mr. Serjeant COPLEY, this witness said, 
 " Bell Lane is twenty-one yards wide, and straight for a con- 
 siderable distance." 
 
 John Kesterton, a farmers' labourer, the next witness called, 
 saw the deceased after she had left Cox's on her way back 
 home. His evidence is remarkably clear, and corroborates 
 fully Hannah Cox as to her statement of the time when the 
 deceased left Mrs. Butler's house on her way home. 
 Although it does not appear on the face of the evidence, nor 
 on cross-examination, yet the fact was that this witness was 
 in the habit of going daily to Birmingham for manure, and 
 his watch was set by Birmingham time. His estimate of the 
 time is therefore more likely to be correct than that of almost 
 any witness called to speak on this point. He said : " I live 
 at Erdington, with Thomas Greeiisall, a farmer. On the 
 27th of May I got up about two. I went first to the stables
 
 TRIAL OF ABRAHAM THORNTON. 11 
 
 to fettle the horses ; the stable looks towards the road that 
 leads to the village of Erdington. I put my horses to the 
 waggon at about four that morning, and then took them to 
 the pit of water in Bell Lane by the side of the road. When 
 my horses had drunk I turned them round and went straight 
 off for Birmingham through Erdington. I know Mrs. 
 Butler's house ; I passed it, and after I passed I turned to 
 look back. I saw Mary Ashford coming out from Mrs. 
 Butler's entry. I knew her perfectly well. I smacked my 
 whip at her. She turned round, smiled, and nodded to me. 
 This would be about a quarter past four. She went up Bell 
 Lane, and seemed in a great hurry. I hardly know the 
 prisoner by sight, but I have seen him. I saw no person 
 like him that morning ; nobody but her. The'road is broad, 
 and I could see for some distance; but I saw nobody on 
 the road." 
 
 Mr. READER then put one or two questions of importance 
 in order to fix the time when the deceased was seen coming 
 out of Mrs. Butler's. The whole defence turns upon this as 
 a starting point. You knew the deceased very well ? Yes. 
 You could not therefore be mistaken in her person? No. 
 And you saw her about a quarter past four coming out of the 
 entry ? Yes. And you saw nobody else ? No. 
 
 The next witness, Joseph Dawson, spoke to meeting the 
 deceased at a quarter past four, as near as he could guess, 
 between Bell Lane and Mrs. Butler's. He spoke to her ; 
 asked her how she did, and passed on ; in respect of time 
 entirely corroborating Kesterton. 
 
 Thomas Broadhurst, the last witness that saw the deceased 
 alive, was then called, and said : " On the morning of the 
 27th of May, I was on the turnpike road leading from Tyburn. 
 I crossed Bell Lane. Before I crossed, Mary Ashford 
 crossed the turnpike road in front of me. She was going 
 from Erdington towards Penns. She had a bundle in her 
 hand, and was walking fast. I asked a man who was 
 trenching about 200 yards below, what time it was, and 
 he said it was about ten minutes past four. When I got 
 home it was twenty minutes to five, which was a quarter 
 too fast. It would take me seven minutes to get home. It 
 would be half a mile and better from the part of Bell Lane
 
 12 TRIAL OF ABRAHAM THORNTON. 
 
 where I saw Mary Ashford to Erdington." This witness, 
 after making the allowances he mentions, fixes the time when 
 he last saw the deceased at eighteen minutes past four, 
 which is in accordance with and in full corroboration of the 
 other witnesses. 
 
 George Jackson proved finding the deceased's bundle and 
 bonnet, which led to the discovery of the body. He said : 
 " I live in Hurst Street, Birmingham, and follow the labouring 
 business. On the 27th of May I left Birmingham for a 
 place betwixt Newhall Fields and Sutton. It was five o'clock 
 when I was at the top of Moor Street in Birmingham. I 
 came past the workhouse at Erdington and turned up a lane 
 near the workhouse. I do not know the name of that lane. 
 I afterwards turned again out of that lane into the fore-drove 
 leading for Penns. I went along a footpath and came to a 
 pit of water. I observed a bonnet, a pair of shoes, and a 
 bundle close by the top of the slope that leads down into the 
 pit. I looked at them. I saw one of the shoes all blood. 
 Then I went towards Penn's Mills to fetch a person to come 
 and look at them. I brought a man from the first house ; 
 he was coming out of his own door-place, and we went to the 
 pit. His name is Lavell. I told him to stand by these 
 things whilst I fetched some more hands from Penn's Mills, 
 as nobody should meddle with them. Going from the pit 
 along the footpath, I saw some blood about thirty yards from 
 the pit. It might be about a couple of yards round, in a 
 triangle extending zig-zag about two yards. I went a little 
 further and saw a lake of blood by the side of the brink. I 
 saw some more to the left on some grass; then I went 
 forward to the works at Penn's Mills to let them know what 
 had happened. I got assistance, and sent to Lavell at the 
 pit. I went to Penn's Mills to let them know, and then I 
 came back again. I did not stay until the body was found. 
 I went to my work." 
 
 On cross-examination by Mr. REYNOLDS, the witness said : 
 " It might be about five miles or five miles and a half from 
 Birmingham to the pit, as near as I can guess. There is a 
 public road the whole way. I left Birmingham about five, 
 and it was about half past six when I got to the pit. It is 
 about five miles from Moor Street to the pit. The pit is
 
 TRIAL OF ABRAHAM THORNTON. 13 
 
 close to the footpath, and the footpath is close to the carriage 
 road, separated by a hedge. The pit is close to a stile, and 
 the field in which it is, is a grass field. The field imme- 
 diately before it, coming as I did from Birmingham, is a 
 ploughed field, through which there is a public footpath. 
 In order to get from this ploughed field into the field where 
 the pit is, it is necessary to get over a stile. The only com- 
 munication from one field to another is by the stile. The 
 stile is two or three yards from the place where the bundle 
 was. The things I saw were on the edge of the pit. The 
 pit is not very steep, in a middling way ; perhaps rather 
 steep than otherwise. Penn's Mills are about half a mile 
 off. Mr. Webster has there a considerable manufactory. I 
 did not see all the men collected at work when I arrived, but 
 I saw several about. Between four and five in the morning 
 is a very common hour for labourers in the fields to be 
 about." 
 
 Re-examined by Mr. CLARKE. How far might it be from 
 the place where the bundle and shoes were to the pit ? It 
 might be about four yards from the top of the slope to the 
 water. 
 
 Mr. CLARKE. What time was it when you got to 
 Mr. Webster's works ? I cannot tell ; it was soon after I 
 went to Lavell's. It might be half an hour or three quarters 
 after I first saw the bundle till I got to Mr. Webster's 
 works. 
 
 Mr. Justice HOLROYD. How far were the bundle and 
 shoes from the top of the slope? About a foot. 
 
 William Lavell, the first of the witnesses who spoke 
 to the footmarks, gave some very important evidence. He 
 said : " I am a workman at Penn's Mills. On the 27th of 
 May, in consequence of what the last witness said to me, I 
 went to the pit. I know the harrowed field through which 
 a footpath from Erdington to Mill Lane goes. It is next 
 the field where the pit is. I went along the footpath to see 
 if I could discover any footsteps. The first I saw were those 
 of a man going from the pit towards Erdington on my right 
 hand, going across the ploughed field towards a dry pit at 
 the corner of the field to the right. I then went higher up 
 the footpath, and at about eight yards distance I discovered
 
 14 TRIAL OF ABRAHAM THORNTON. 
 
 a woman's footsteps going from the footpath in the same way 
 to my right. I traced the steps and found they got together 
 in about fifteen yards. I gather from the stride and sinking 
 in of the ground that the footsteps were those of persons 
 running. I traced them up to the right-hand far corner of 
 the field where the dry pit is, running together. "When I 
 got to the corner I observed them dodging backwards and 
 forwards ; the steps there seemed shorter, as if they had been 
 dodging about. I traced the steps further on to the grass 
 at the corner of the field to the dry pit. They then went 
 from the dry pit to the water pit in the harrowed field j not 
 the one where the body was found. I traced them on the 
 harrowed ground. The footsteps appeared to be of persons 
 walking ; sometimes the woman's feet went on the edge of 
 the grass, and sometimes on the edge of the field. I traced 
 the footsteps down to the water pit in the harrowed field, 
 and could trace them no further. I traced the man's foot 
 till it came to the hard road (the footpath), but could not 
 trace the woman's foot because she was on the left of the 
 man on the grass. I could trace them no further towards 
 the second pit, because the road was hard. I afterwards 
 traced the footsteps of a man in a contrary direction back 
 from the pit in the harrowed field. They began at the foot- 
 path and were those of a man running. They were on the 
 harrowed ground. There were no woman's footsteps. I 
 traced these footsteps about three parts up the field; it 
 might be rather better towards the dry pit. The footing 
 then turned down to the left as I was pursuing the track. I 
 traced them down to the gate at the further corner crossing 
 the footpath. They crossed the footpath at the middle of 
 the piece or thereabouts. They appeared to be the footsteps 
 of a man running. They went quite to the corner to the 
 gate. On the other side was a greensward, clover, and I 
 could trace them no further. The gate would lead into some 
 meadows towards Pipe Hall. I know Castle Bromwich. 
 That road would take a person to Castle Bromwich. You 
 could get that way into the Great Chester Road for Castle 
 Bromwich. From Peun's Mill Lane the regular road to 
 Castle Bromwich from the corner of the pit would have been 
 straight across the piece, up the foot- road, and so into Bell
 
 TRIAL OF ABRAHAM THORNTON. 15 
 
 Lane. By the way I traced these footsteps to the corner of 
 the field, a man would sooner get to Castle Bronrwich than 
 by going the regular way. From the gate where I lost the 
 footsteps there was no regular way to Castle Bromwich, and 
 to go that way you must go upon trespass. It would make 
 a shorter cut. I afterwards went into the field with a man 
 with a pair of shoes to try the footsteps. Joseph Bird took 
 the shoes. They were the prisoner's. A woman's shoe was 
 also taken, but not at that time. I took that shoe. The 
 shoes were right and left shoes. The footsteps of the man 
 in the field appeared to be made with right and left shoes. 
 I and Bird tried the shoes on the footsteps. We compared 
 them I suppose with about a dozen. The shoes fitted these 
 footsteps exactly. I compared them with the footsteps on 
 both sides of the way. I have no doubt whatever that these 
 footsteps were made with those shoes. I compared them with 
 the footsteps that turned off the road, about eight yards 
 from where the footsteps of the woman turned off. They 
 fitted them. I compared them with those parts where the 
 man and the woman appeared running, and where the 
 dodging was. They agreed in all those parts. Some of the 
 footsteps were covered up with boards at the corner, up by 
 the dry pit. I covered them. One of the shoes was nailed 
 with a nail called a sparrow-bill." 
 
 Was there any at the toe of either shoe? There is not 
 on one side. Which shoe ? The right. Were there any 
 marks of this sparrow-nail on those that you covered ? There 
 was one step trod on a short stick, which threw the foot up, 
 and there were the marks of two nails. I tried the shoe with 
 that footstep. The nails were so small we could not see 
 whether they fitted those marks or not. I afterwards went 
 with a woman's shoe in company with Bird. It was Mary 
 Ashford's shoe. I compared that shoe with the woman's 
 steps I had traced, and with those that turned to the right 
 and with those where the man and woman appeared to be 
 running, and where the doubling was, in every place. The 
 shoe corresponded. We took both shoes. I have no doubt 
 in my mind that the woman's steps all along were made by 
 those shoes. I know the slope of the pit where the body 
 was found. I saw at the edge of the slope one footstep, that
 
 16 TRIAL OF ABRAHAM THORNTON. 
 
 of a man ; it appeared to be the left foot sideways, inclining 
 towards the slope. I did not compare the shoe with that. I 
 saw where the bundle was beside the pit. There were also a 
 pair of shoes and a bonnet. The shoes were not tied up in 
 anything. These were the shoes with which I compared the 
 footsteps. 
 
 This part of the evidence goes to show that the shoes with 
 which the footsteps were compared were those in which Mary 
 Ashford had been to the dance, and in which she had been 
 walking with Thornton for three hours over, or in the 
 neighbourhood of, this identical field. At Hannah Cox's, it 
 will be remembered, she changed everything except her shoes. 
 If she had also changed her shoes, the whole face of this 
 evidence against Thornton might have assumed a very 
 different aspect. It is curious to think what the effect would 
 have been if Mary Ashford had put on the shoes which she 
 had left at Hannah Cox's in the evening on her return from 
 Birmingham, and in which she had not been to the ball. In 
 that case, if the footsteps in the field were made by her 
 in the shoes which she had changed at Hannah Cox's in the 
 morning after the ball, they would have been conclusive evi- 
 dence against Thornton. As however they were not, 
 but were made by the shoes which she wore at and after 
 the ball up to half-past three, all which time she was 
 voluntarily in Thornton's company, the value of the footsteps 
 as evidence is much weakened. It is singular and unfortu- 
 nate that the only articles of dress, the change of which 
 could have thrown any light on the question of the deceased's 
 death, were those which, by some fatality or other, were not 
 changed. 
 
 The witness then went on to say : " Below the gate, about 
 forty yards from the pit, I saw blood. There was blood 
 also about fourteen yards up nearer the pit. I traced the 
 blood for about fourteen yards a train of blood. It ran 
 straight up towards the pit, across the path, and then about a 
 foot from the path on the clover." 
 
 When you saw it on the clover were there any footsteps ? 
 No. How near the footway were those drops that you saw 
 on the clover ? About a foot. Was the dew on the clover ? 
 Yes. Did the blood on the clover appear to be a track of
 
 TRIAL OF ABRAHAM THORNTON. 17 
 
 blood or a few drops ? It came in drops at last, but it was a 
 regular run when it first came on the clover not all 
 the way. 
 
 Cross-examined by Mr. READER. My house is from 
 200 to 300 yards from the pit. I live next Reynolds, 
 and work at the mill. I had not been at work that 
 morning. The men at the mill collect about half- past 
 six. [This was to show that Mary Ashford might have been 
 murdered by one of the workmen on his way to the mill.] 
 None of my family were up at that time. The first I heard 
 of this was by Jackson calling me. I cannot tell whether 
 there had been much rain that morning. There had not 
 been a storm before I traced the steps. I began to trace 
 them about seven o'clock. It might be one on the same day 
 when I traced the man's shoe. It rained while we were 
 going to trace them. I do not know that it had rained before. 
 I covered two of the man's and one of the woman's with a 
 board before the rain began. I put the boards near the dry 
 pit. There were a great many people collected on the 
 ploughed field at one time after another, but not then. I 
 do not think there were more than 1,000 footsteps there. 
 There were a great many footsteps besides the footsteps I 
 traced in the morning, but I will not say there were thou- 
 sands. There were a great number of footsteps of other 
 persons. I tried the shoes of some of these persons, to see 
 if they corresponded with the marks, and they did not. 
 Did you try the marks of the shoes of any other persons 
 there with what you supposed to be the prisoner's ? No (a). 
 You say, when you began to trace you first traced the man's 
 shoes in the direction towards Erdington? No (a). You 
 traced them backwards and forwards over different parts of 
 the close towards the dry pit ? Yes. Some appeared to be 
 running and some walking? No. In the course of this 
 tracing you traced them sometimes running and sometimes 
 walking? Yes. At times running, and at one time walk- 
 ing? Yes. .You describe them as though you had seen 
 them, but all you mean is that in some places the marks 
 
 (a) These questions in cross-examination seem either to be inaccu- 
 rately framed or inaccurately reported.
 
 18 TRIAL OF ABRAHAM THORNTON. 
 
 were deeper and the strides greater? Yes. Some parts of 
 the harrowed field were, I suppose, softer than others? 
 Partly of the same nature all over. This must have occupied 
 these persons, walking and running as you describe, a long 
 space of time, must it not ? Yes. 
 
 Mr. Justice HOLROYD. What was the distance from the 
 footpath where the tracks were to the dry pit? About 
 140 yards. 
 
 Mr. READER. How far from the dry pit to the other? 
 Near upon the same length. I then traced the footsteps 
 down from the top end to the pit. The harrowed close is 
 not the close in which the body was found. I saw 
 some blood about forty yards from the pit where the 
 body was found in the next close of clover. I saw but one 
 mark of a footstep on the edge of the pit close to the slope. 
 / did not measure that. There had not been a great many 
 persons near the spot before I found the marks. / observed 
 that one footstep when I got up first. I did not observe any 
 blood in the harrowed field. I saw a footing go across the 
 close from the dry pit to the other corner of the close. 
 That would lead to Castle Bromwich. A person could, if he 
 liked, have gone by Tyburn House. By trespass he might 
 have gone a nearer way. He must have got into the Chester 
 road. I suppose a person could have got in less time to 
 Castle Bromwich if he had gone over hedge and ditch. I 
 traced the spots of blood that went towards the pit; for 
 fourteen yards there were no footsteps of any sort, neither 
 of a man nor woman. There was a footpath by the 
 side. Near the pit was only one footstep, and I could not 
 tell whether it was a man's or a woman's. 
 
 Joseph Bird, the witness who accompanied Lav ell in his 
 examination of the footmarks in the harrowed field, then 
 gave some corroborative testimony. It is not necessary to 
 give the whole of his evidence, which would be merely a 
 repetition of that of the last witness. He made one or two 
 remarks, however, as to the nature of the footsteps which 
 Lavell had not made, or at least had not given in evidence. 
 He said : " The footsteps had the appearance of a heavy man 
 running. I gather that from the length of the stride and by 
 the little scrape of the toe of the woman's shoe, and by the
 
 TRIAL OF ABRAHAM THORNTON. 19 
 
 heels of the man's shoe sinking very deep, as if made by a 
 heavy man." And then some entirely new evidence of con- 
 siderable importance. " I compared the two footsteps that had 
 been covered with boards. I kneeled down and blew the 
 dirt out of the right footstep, to see if there were any nail 
 marks. There lay a bit of rotten wood across the footstep, 
 which had turned the outside of the shoe a little up, and the 
 impression of that side of the foot was not so deep as the 
 other. I observed two nail marks on that side where it was 
 shallowest. The shoes were nailed, and there was a space of 
 about two inches where the nails were out, and they were 
 nailed again. I marked the first nail on the side of the 
 shoe, and then kneeled down to see if they exactly corres- 
 ponded, and they did exactly. I could see the second nail 
 mark at the same time, as well as under the shoe, and they 
 fitted in every part exactly. I compared also the tracks of 
 the woman's shoe. Where the running over the ground 
 was, there was a dent or scraping in the ground ; and by 
 looking at the shoes the leather of one of them was raised at 
 the toe more than the other, from being wet. The shoes 
 were not alike, and the impressions varied accordingly, 
 agreeing with the form of each shoe." After giving 
 some evidence as to the time when he examined the 
 footmarks, he said: "By going along the turnpike road, 
 a person must have passed Tyburn House and several 
 other houses before he got to Castle Bromwich ; but if he had 
 turned to the right he might have got to that place 
 over the fields, where there is no footpath. There is no 
 regular footpath that way, except a bit of a road that turns 
 off near Samuel Smith's house, which is used by the market 
 people, and goes down to Occupation Bridge, and crosses the 
 canal by the side of Adams' piece. By pursuing that road, 
 a person might have gone to John H olden' s either by going 
 down the towing-path of the canal or by the road." 
 
 In cross-examination by Mr. REYNOLDS, the witness 
 admitted that the straight and nearest road was along the 
 turnpike, and that it rained sharpish as he returned from 
 Tyburn House to measure the footsteps. There had been by 
 that time thirty or forty people walking over the ground, but 
 not where the boards were placed. They were ordered off by 
 
 c 2
 
 20 TRIAL OF ABRAHAM THORNTON. 
 
 Mr. Bedford. Mr. Bedford came on the ground about nine 
 or ten o'clock. At that time there would be about a score 
 of persons in the ploughed field. 
 
 In answer to Mr. Serjeant COPLEY, he said he first saw 
 the footmarks about seven o'clock, and there had not been 
 many persons in the harrowed field then. 
 
 James Simmonds proved the finding of the body. He 
 said : " I am a labourer. I was at Penn's Mills on the 
 morning of the 27th of May last. I accompanied two or three 
 persons to the pit ; the first thing I observed was a bonnet, 
 a pair of woman's shoes, and a bundle. I then dragged the 
 pit with an eel -rake and a pair of long reins, three or four 
 times, and succeeded in bringing up the body of Mary Ash- 
 ford. There were some leaves and mud about her face. 
 This was about eight o'clock in the morning." 
 
 Mr. John Webster, who had taken throughout a very pro- 
 minent part in the prosecution, was then called. He said, in 
 reply to Mr. CLARKE : ' ' I am proprietor of a considerable 
 manufactory at Penn's Mills. I recollect the body of Mary 
 Ashford being extricated from a pit on the morning of the 
 27th of May ; it was just brought to the edge of the pit 
 when I arrived. As near as I can judge, it was about eight 
 o'clock. I ordered the body to be immediately taken to 
 Lavell's house, and the bonnet, bundle, and shoes with it. 
 I examined the ground on all sides of the pit, and about 
 forty yards from it, observed a considerable quantity of 
 blood as much as I could cover with my extended hand. 
 On examining the spot more closely, I discovered on the 
 grass the impression of a human figure; the legs of the 
 figure were extended, and the arms stretched out to the full 
 length. In the centre of the figure was a small quantity of 
 blood, and at the feet a considerable quantity of coagulated 
 blood, the same which first caught my attention. Between 
 the extension of the legs were the marks of the knees and 
 the toes of a man's large shoes; I judged them to have been 
 made by the same person. I traced blood for nearly ten 
 yards up the footpath, in the direction of the pit. A little 
 further from the pit, and near the stile, on the other side, in 
 a contrary direction from the harrowed field, there was the 
 mark of some person who had sat down. I could not tell
 
 TRIAL OF ABRAHAM THORNTON. 21 
 
 exactly whether it was made by one or more persons. I 
 then retired from the spot to dress, but returned in the 
 course of an hour afterwards. I accompanied Bird into the 
 harrowed field, and there perceived traces of a man and a 
 woman's foot. I sent for the shoes which had been taken to 
 LavelFs house with the body. They were brought; and I 
 examined them with the footmarks on the ground, and they 
 perfectly corresponded. I have not the least doubt in my 
 own mind that the footsteps I there saw were made by the 
 shoes of the deceased. One of the shoes was stained with 
 blood a little on the outside, and the other a little on the 
 inside." 
 
 [The shoes of the deceased were then produced by a police- 
 officer, and handed to his Lordship and the jury for exami- 
 nation. They were marked with blood in the manner de- 
 scribed by Mr. Webster, who stated them to be the same 
 which were found at the edge of the pit on the 27th of 
 May.] 
 
 Mr. Justice HOLROYD. The black spot observable on the 
 outside of one of the shoes, Mr. Webster, is, I suppose, one 
 of the marks you allude to? 
 
 Mr. Webster. It is, my Lord. The marks of blood 
 were very plain when I first saw them ; they are now much 
 darker. 
 
 Examination of Mr. Webster continued. " I then went to 
 LavelFs to examine the body of the deceased. I perceived 
 marks on each arm, which appeared to me to have been 
 made by the grasp of a man's hand. I saw the clothes the 
 body had on; they consisted of a red spencer, a pink 
 coloured gown, and a pair of black worsted stockings. The 
 seat was in a very dirty state ; and I observed some blood 
 upon other parts of it. These were the same clothes which 
 I had sent from the pit with the body, and intrusted to the 
 care of Lavell's wife. Next day I had them sent to my 
 house, where they were put under lock and key in my 
 possession, until they were given to Dale, the police-officer. 
 I know Butler's house very well. After the first examination 
 of the prisoner at Tyburn, I went to examine her clock. I 
 compared it with my own watch, which I consider to be a 
 very accurate one, and found it to be forty-one minutes too
 
 22 TRIAL OF ABRAHAM THORNTON. 
 
 fast. My watch was set by Mr. Crompton's, which I believe 
 keeps time very correctly." 
 
 Fanny Lavell, in reply to Mr. Serjeant COPLEY, said : " I 
 am the wife of William Lavell. I remember the body of 
 Mary Ashford being brought to my house on the morning 
 of the 27th of May. Mr. Webster gave me a bundle of 
 clothes; it was undone by him in my presence. He also 
 delivered to me a pair of shoes and a bonnet. I delivered 
 the whole of them back to him the next day in the same 
 condition in which they were given to me. I undressed the 
 body of the deceased. Her clothes were in a very dirty con- 
 dition ; they were very bloody. The pink gown was parti- 
 cularly so in the seat. The blood had stiffened them so 
 much in some parts that I was obliged to tear some of them 
 off. The front of the shift had a rent of about five or six 
 inches in length." 
 
 Mr. Justice HOLROYD. Did you perceive the marks of 
 blood upon the black stockings? I cannot say I did, my Lord. 
 
 Witness continued. " I examined the dresses of the de- 
 ceased. The gown in which she danced had a small drop of 
 blood on the seat; the white stockings, too, had marks of 
 blood upon them ; and the back of every other part of the 
 gown was clean, and the muslin spencer appeared to be but 
 little soiled." 
 
 [Thomas Dale, the police-officer, here produced a bundle, 
 which he stated to be the same he had received from 
 Mr. Webster. It was sealed up by Mr. Webster before it 
 was given to him. The seal was then broke, and the two 
 dresses of the deceased handed to the jury. The pink gown, 
 as described by Mrs. Lavell, appeared to be much blooded, 
 and the mark of a drop of blood was observable on one of the 
 black stockings.] 
 
 Mary Smith said : " I live at Penn's Mills. On the 27th of 
 May I assisted in examining the body of the deceased. It 
 was then lying at the house of William Lavell, and might 
 be about half-past ten o'clock in the morning. The body at 
 that time was not cold. I did not see the clothes of the 
 deceased taken off. On each arm, just above the elbow, was 
 a black mark, which appeared to have been made by the 
 grasp of fingers."
 
 TRIAL OF ABRAHAM THORNTON. 23 
 
 Mr. William Bedford, a magistrate for the county, was then 
 called. He said : "On the 26th of May I went to Tyburn 
 House and took the deposition of the prisoner. The depo- 
 sition now produced is the one. It was read over to the 
 prisoner, and signed by him afterwards in my presence." The 
 deposition was then read by the officer of the court. It is a 
 document of some importance, and as some discrepancies 
 exist in the different copies inserted in the published reports, 
 the following has been taken from the brief for the prosecu- 
 tion, and is the same as the copy prepared for the use of the 
 Judge on the trial. 
 
 At Tyburn, in the parish of Aston, in the county of War- 
 wick. The voluntary examination of Abraham Thornton, 
 of Castle Bromwich, in the said parish of Aston, taken 
 before William Bedford, Esquire, one of His Majesty's 
 justices of the peace for the said county : 
 
 Who saith that he is a bricklayer; that he came to the 
 " Three Tuns" at Tyburn about six o'clock last night, where 
 there was a dance. That he danced a dance or two with the 
 landlord's daughter, but whether he danced with Mary Ash- 
 ford or not he cannot recollect. Examinant stayed till about 
 twelve o'clock. He then went with Mary Ashford, Benjamin 
 Carter, and a young woman, who he understood to be 
 Mr. Machin's housekeeper, of Erdington ; that they walked 
 together as far as Potter's. Carter and the housekeeper went 
 on towards Erdington. Examinant and Mary Ashford went 
 on as far as Mr. Freeman's ; they then turned to the right 
 and went along a lane till they came to a gate and stile on the 
 right-hand side the road ; they went over the stile and into the 
 next piece, along the fore-drove ; they continued along the foot- 
 road four or five fields, but cannot tell exactly how many. 
 Examinant and Mary Ashford then returned the same road. 
 When they came to the gate and stile they jirst got over, they 
 stood there about ten minutes or a quarter of an hour talking. 
 It might be then about three o'clock, and whilst they stood 
 there a man came by ; examinant did not know who. Had on 
 a jacket of a brown colour. The man was coming along the 
 footpath they had returned along. Examinant said good
 
 24 TRIAL OF ABRAHAM THORNTON. 
 
 morning, and the man said the same. Examinant, asked 
 Mary Ashford if she knew the man ; she did not know 
 ivhether she knew him or not, but thought he was one ivho had 
 been at Tyburn. That examinant and Mary Ashford stayed 
 at the stile a quarter of an hour afterwards ; they then went 
 straight up to Mr. Freeman's again, crossed the road, and 
 went on towards Erdington till he came to a grass field on 
 the right-hand side the road, icithin about 100 yards of 
 Mr. Greensall's, in Erdington. Mary Ashford walked on, and 
 examinant never saw her after she ivas nearly opposite 
 Mr. Greensall's. Whilst he was in the field he saw a man, 
 cross the road for James', but he did not know who he was. 
 He then went on for Erdington workhouse to see if he could 
 see Mary Ashford. He stopped upon the green about jive 
 minutes to wait for her. It was then four o'clock, or ten 
 minutes past four o'clock. Examinant went by Shipley's in 
 his road home, and afterwards by John Holden's, where he 
 saw a man and woman with some milk-cans, and a young man 
 driving some cows out of a field ivho he thought to be Holden's 
 son. He then went towards Mr. Twamley's mill, where he 
 saw Mr. Notion's keeper taking the rubbish out of the nets at 
 the flood-gates. He asked the man what o'clock it was ; he 
 answered near five o'clock or jive. He knew the keeper. 
 Twamley's mill is about a mile and a quarter from his father's 
 house, with whom he lives. The first person he saiv was 
 Edward Teck, a servant of his father, and a boy. That his 
 mother was up. He took off a black coat he had on and put 
 on the one he now wears, which hung up in the kitchen, and 
 changed his hat, and left them both in the house. He did not 
 change his shoes or stockings, though his shoes were rather 
 wet from having walked across the meadows. That examinant 
 knew Mary Ashford when she lived at the " Swan" at 
 Erdington, but not particularly intimate with her ; that he 
 had not seen said Mary Ashford for a considerable time 
 before he met her at Tyburn. Examinant had been drinking 
 the whole evening, but not so much as to be intoxicated. 
 
 Mr. Bedford then said : " The deposition was taken about 
 one o'clock on the 27th May, at Tyburn House, at the house 
 of Daniel Clarke."
 
 TRIAL OF ABRAHAM THORNTON. 25 
 
 The police-officer Thomas Dale was then put forward. 
 On being sworn, he said : " I am one of the assistant 
 constables of Birmingham. I was applied to on the morn- 
 ing of the 27th of May, to go to Tyburn House. I arrived 
 there about ten o'clock, and took the prisoner into custody. 
 Daniel Clarke, the landlord, was then in company with him. 
 Mr. Bedford, the magistrate, arrived there about eleven 
 o'clock. The prisoner was then in my custody. The 
 prisoner said, when he was before the magistrate " 
 
 Mr. REYNOLDS. My lord, I humbly submit to your lord- 
 ship that my learned friend cannot pursue this course of 
 examination. 
 
 Mr. Justice HOLROYD. Certainly not, if the object is 
 to make an addition, by oral testimony, to the prisoner's 
 written examination taken before the magistrate. 
 
 Mr. READER. My Lord, I know the worthy magistrate 
 before whom this examination was taken too well to believe 
 that a fact of any importance transpired which was not put 
 in the deposition. 
 
 The examination of Thomas Dale was then resumed. 
 " After the examination was taken before the magistrate, I 
 took the -prisoner up stairs and examined his person. Two 
 persons of the name of Benson and Sadler were present. 
 I examined his linen, and questioned him about the state in 
 which it was in. He then acknowledged to us that he had had 
 connection with the deceased, but that it was with her own 
 consent, and declared he knew nothing of the murder. 
 
 The cross-examination is interesting as showing the value 
 of this officer's testimony. The important point really was 
 whether the prisoner had admitted having had intercourse with 
 the deceased before he was asked by the magistrate or after. 
 
 Mr. READER. Dale, how long had you been with the 
 prisoner before Mr. Bedford, the magistrate, came to 
 Clarke's ? An hour or more. Did he confess he had been 
 intimate with the deceased before he was taken to be examined? 
 I believe he did. Did anyone hear it besides you ? I can 
 hardly tell ; I think not. Did you tell Mr. Bedford what the 
 prisoner had said before he examined him ? I believe not. 
 
 Mr. Serjeant COPLEY. Did Thornton tell you this before 
 the magistrate came to Clarke's ? / am not quite sure
 
 26 TRIAL OF ABRAHAM THORNTON. 
 
 whether he said so before or after. You are sure lie did say 
 so to you, are you? I am sure he said so when we were 
 searching him up stairs. You are quite sure of that? Yes. 
 Who heard him make that confession besides yourself? 
 Mr. Sadler and "Wm. Benson were present. Who is Benson ? 
 I do not know. Did not you know him before ? No ; I 
 never saw him before that morning. He assisted you, I 
 suppose ? He was called in by somebody. I suppose he 
 went up stairs ? Yes, to search the prisoner. 
 
 William Benson was then sworn. He said, in answer to 
 Mr. CLARKE : " I live at Penn's Cottage, near Penn's Mills. 
 I was at Tyburn on the 27th of May last, and assisted Dale 
 in examining the person of the prisoner. What he has stated 
 is perfectly true. I was not present when the prisoner's shoes 
 were taken off. He was sitting in a chair without shoes on, 
 and a pair of shoes, which seemed to be his, stood by him. 
 Mr. Bedford asked me to take up the prisoner's shoes and bring 
 them to him. I took up the pair by the prisoner, and the 
 prisoner did not deny their being his." 
 
 Joseph Cooke, sworn. Examined by Mr. CLARKE : " I am a 
 farmer's son, and live at Erdington. I was at the dance at 
 Tyburn on the night of the 26th of May. The prisoner 
 Thornton was there. I saw Mary Ashford come into the 
 room. Thornton inquired who she was, and I heard 
 Cotterill say, 'It is Ashford's daughter.' Prisoner then 
 said, ' I have been connected with her sister three times, and 
 I will with her, or I'll die by it/ " 
 
 Cross-examined by Mr. REYNOLDS. " I do not think any- 
 body heard this conversation pass between the prisoner and 
 Cotterill but myself. Nobody else was near enough. I did 
 not remonstrate with Thornton on making use of this 
 expression. Nor did I say anything to Mary Ashford about 
 what I had heard. I was not examined at the coroner's 
 inquest. I cannot say how that was. I knew when the 
 inquest was held. I was at the house at the time, and 
 should have gone if I had been called for. I was not asked. 
 I did hear that Cotterill denied that he overheard the 
 prisoner say what I have stated. He never denied it to me." 
 
 Daniel Clarke, the person who kept the Tyburn House, 
 was then called. His evidence was shortly as follows : " I
 
 TRIAL OF ABRAHAM THORNTON. 27 
 
 heard of the body being taken out of the water. In conse- 
 quence, I went to search for the prisoner. I went on the 
 road to Castle Rromwich, and met the prisoner near the 
 chapel on the turnpike road on a pony. I asked him what 
 had become of the young woman that went away with him 
 from my house last night. He made no answer. I said, 
 ' She is murdered, and thrown into a pit/ He said, ' Mur- 
 dered ! ' I said ( Yes ; murdered/ The prisoner said ' I 
 was with her till four this morning.' I then said, ' You 
 must go along with me and clear yourself/ He said, ' I can 
 soon do that/ "We then rode towards my house. I did 
 not have any conversation with the prisoner about the 
 murder. We talked about things we saw, such as farming. 
 I said nothing more to the prisoner about the murder. 
 Though I went a mile at least with the prisoner, neither of 
 us mentioned another word about the matter. When we got 
 to my house at Tyburn, the prisoner put up his pony into the 
 stables, and said he would walk over the ground, the footway 
 to Sutton. He then went into the house and had something 
 to eat and drink. Nothing more was said between me and 
 the prisoner after we got into the house. The prisoner 
 stopped at my house till the constable came and took him 
 into custody. He said nothing more about going to Sutton/' 
 
 Cross-examined by Mr. READER. " The prisoner and I did 
 not converse as we went along the road. I did not allude 
 to the matter at all after what passed between us at first ; 
 nor he either. I do not think the prisoner had heard of the 
 murder before I told him. On my telling him, he imme- 
 diately said, ' Murdered ! why, I was with her till four 
 o'clock/ I should not have known that the prisoner had 
 been with the deceased until four in the morning unless he 
 had told me." 
 
 Mr. Justice HOLROYD. Did the prisoner appear confused 
 when you first told him of the murder ? I think he 
 appeared so a little. 
 
 Mr. READER. You were greatly affected yourself? Yes. 
 And the prisoner might have been equally so ? He might : 
 I cannot say. 
 
 George Freer, a surgeon, was then called, who repeated 
 the medical evidence previously given at the inquest. In
 
 28 TRIAL OF ABRAHAM THORNTON. 
 
 addition, he said : " The deceased was a strong, well-made 
 girl, about five feet four inches in height." 
 
 Mr. Fowler, on behalf of the prosecution, and Henry 
 Jacobs, on behalf of the defence, both land surveyors, 
 having produced and sworn to the accuracy of the plans laid 
 before the jury, the case for the prosecution closed. 
 
 Mr. Justice HOLROYD then addressed the prisoner. He 
 said : " Now is the time for your making your defence. 
 Your counsel have done all they can do for you. They 
 cannot address the jury on your behalf. All they could 
 possibly do they have done, by cross-examining the several 
 witnesses brought forward in support of the prosecution. 
 The Court and jury will now hearken with patience and 
 attention to anything you have to say/' 
 
 Prisoner. My Lord, I shall leave it all to my counsel. 
 
 The following witnesses were then called : 
 
 W. Jennings. " I am a milkman and live at Birmingham. 
 I buy milk of Mr. Holden, of Erdington ; myself and wife 
 were at his house on the morning of the 27th of May. I re- 
 member seeing the prisoner coming down the lane which leads 
 from Erdington to Mr. Holden's. He was going towards the 
 house. It was, as near as I can judge, then 'about half -past 
 four. I had no watch with me. We milked a cow a-piece 
 in the yard after we saw him, which might occupy us ten 
 minutes. My wife then asked Jane Heaton what o'clock it 
 was. The prisoner was walking very leisurely. My wife 
 saw him as well as I." 
 
 Cross-examined by Mr. CLARKE. " I was standing in the 
 lane within about thirty yards of Mr. Hoi den's house on the 
 great road when I first saw Thornton. I had been standing 
 there about ten minutes. When I first saw the prisoner, he 
 was within twenty yards of us, coming down the lane 
 between Mr. Holden's house and the canal lane. I cannot 
 tell whether he came down the towing-path of the canal or 
 down the lane from Erdington. I did not see him until he 
 was within twenty yards of me. I had been standing there 
 about five minutes before I saw him." 
 
 By Mr. READER. " I could see down the towing-path from 
 where I stood 300 or 400 yards. If the prisoner had come 
 that way I think I must have seen him."
 
 TRIAL OF ABRAHAM THORNTON. 29 
 
 Martha Jennings. " I saw the prisoner on the 27th of May 
 walking gently along the lane leading to Mr. Holdcn's 
 house. I then went to milk the cows, and inquired of Jane 
 Heaton the time of day a little while afterwards. Between 
 the time of milking the cows and seeing the prisoner might 
 be a quarter of an hour. I was standing near Holden's 
 house when he passed me." 
 
 Cross-examined by Mr. Serjeant COPLEY. I was stand- 
 ing in the road when I first saw the prisoner. We were look- 
 ing at a cow that was running at a great rate down the lane. 
 When she had passed us, we turned to look after her, and 
 then we saw the prisoner. Then, as your backs were towards 
 the prisoner, he might have come along the towing-path 
 without your seeing him ? Yes. 
 
 By Mr. REYNOLDS. " We came that morning to Holden's 
 by the towing-path from Birmingham not many minutes 
 before I saw the prisoner on the road. I could see some dis- 
 tance along the towing-path and I saw no one. The prisoner 
 was walking leisurely, and did not seem in a hurry, or the 
 least confused." 
 
 Jane Heaton. " I live servant with Mr. Holden. I was 
 getting up at half-past four on the morning of the 27th of 
 May. My bedroom window looks into the lane which leads 
 from Erdington to Castle -Bromwich. I saw a man, whom 
 I supposed to be the prisoner, walking towards Castle Brom 
 wich. He was walking quite slow. About a quarter of an 
 hour after, Jenning's wife came and asked me what time of 
 the day it was. I looked at the clock, and observed that it 
 wanted seventeen minutes of five. The clock was not 
 altered for several days after that." 
 
 John Holden. " I was at home on the 28th of May last, 
 when Mr. Twamley came to examine my clock. I believe it 
 to be a very good one. I do not know whether it kept 
 Birmingham time. The clock had not been altered since 
 the day before." 
 
 John Holden, jun. " I am son to the last witness. I live 
 with my father. I remember Jennings and his wife being at 
 our house on the morning of the 27th of May. My mother 
 was ill in bed at the time. I had been to the field to fetch 
 the cows for Jennings. I met the prisoner about 200 yards
 
 30 TRIAL OF ABRAHAM THORNTON. 
 
 from my father's house. I knew him very well by sight. 
 He was then proceeding very slowly towards Castle Brom- 
 wich. I cannot say what time it was, but it was early 
 in the morning." 
 
 Mr. William Twamley. " I live at Newhall Mills, near 
 Sutton Coldfield, and within three miles of Castle Bromwich. 
 I caused the prisoner to be apprehended. I compared my 
 watch and Holden's clock on the 28th of May ; they were 
 exactly alike as to time. From Mr. Holden's I immediately 
 went to Birmingham, and my watch agreed exactly with 
 St. Martin's Church-clock there." 
 
 John Hay don. " I am gamekeeper to Mr. Rotton, of Castle 
 Bromwich. I left my own house about ten minutes before 
 five of the morning of the 27th of May. As I passed by 
 Mr. Z. Twamley's, I heard Mr. Rotton's stable-clock strike 
 five. About five minutes after I saw the prisoner. He was 
 then coming towards Mr. Twamley's mill, as if from Erding- 
 ton to Castle Bromwich. I knew him very well. I asked 
 him where he had been. He said, 'To take a wench home/ 
 After stopping with me a quarter of an hour he went on in a 
 direction to his own house." 
 
 Mr. Justice HOLROYD. What is the distance from 
 Mr. Holden's to the spot where he met the prisoner? It 
 is, my Lord, as near as I can guess, about half a mile. 
 
 John Woodcock. " I am a miller. I work at Mr. 
 Zachariah Twamley's mill. I know the prisoner. I saw a 
 man whom I thought to be him talking to Mr. Rotton's 
 gamekeeper near the flood-gates ; it was then ten minutes 
 past five." 
 
 Cross-examined by Mr. Serjeant COPLEY. " I know the 
 prisoner very well. I was not certain that it was him, but I 
 thought it was at the time. I heard the clock strike five just 
 before the prisoner came up to Haydon. I had been into a 
 field belonging to Mr. Smallwood, and back again to the mill 
 after the clock struck. I have walked the distance over since 
 then at my usual pace, and find I can do it in ten minutes." 
 
 W. Crompton. " I saw Mr. Webster on the morning of 
 the 27th of May in the field in which were the footsteps. 
 We rode to Castle Bromwich together. Mr. Webster com- 
 pared his watch with mine ; we perfectly agreed. Our watches
 
 TRIAL OF ABRAHAM THORNTON. 3l 
 
 were according to Birmingham time. We fomid our watches 
 were fifteen minutes slower than Mr. Rotton's stable-clock. 
 The Birmingham clocks and those at Castle Bromwich 
 differed fifteen minutes." 
 
 James White. " I remember seeing the prisoner near to 
 Mr. Wheelwright's, in Castle Bromwich, about twenty-five 
 minutes past five on the morning of the 27th of May ; he 
 was then on his road to his father's house, which was about 
 half a mile distant." 
 
 William Coleman. " I live at Erdington. I am the grand- 
 father of the unfortunate young woman who was found in the 
 pit. She did not sleep at my house on the night of 
 the dance." 
 
 This closed the case for the defence. The question of the 
 alibi, though the outline of it was doubtless known to the 
 prosecution before the trial, had assumed an importance that 
 was not fully anticipated in the first instance. 
 
 Mr. Justice HOLROYD then proceeded to sum up the 
 evidence (a). He commenced by impressing upon the jury 
 the duty of dismissing from their minds everything they 
 had heard relative to the case before they came into 
 court, and not to suffer prejudice to interfere with their 
 duty. In order to convict the prisoner, he observed, 
 the evidence must be such as not to carry in their 
 minds a reasonable doubt of his guilt. The counsel for 
 the prosecution did not insist that they had produced 
 any direct and conclusive evidence that the prisoner had 
 committed the murder. They had inferred his guilt prin- 
 cipally by combining all the circumstances attending the 
 case, and it remained with them well to consider in what 
 degree those circumstances furnished satisfactory proofs 
 against the prisoner. Crimes of the highest description, it 
 was certain, might be proved by circumstantial evidence 
 only, and sometimes that kind of evidence was the strongest 
 of all others. But then it must be taken and compared in 
 all its parts and considered in all its bearings. Witnesses 
 
 (ft) The siunming up of the learned judge is given here in full from 
 the shorthand notes taken at the time, and published in Cooper's report 
 of the trial.
 
 32 TRIAL OF ABRAHAM THORNTON. 
 
 might vary in their testimony in stating the appearances of 
 the same things ; hut facts could not he altered ; they 
 always spoke for themselves, and would not give way to 
 opinions. But these circumstances, he must observe, must 
 be clear, full, and perfect. Nothing should be wanting to 
 complete the connection, or the whole would necessarily fall 
 to the ground. They must therefore examine with the 
 greatest care all the circumstances on which the proofs of 
 guilt depended, and whether they amounted only to mere 
 presumptions and probabilities instead of positive and 
 real facts. 
 
 If, on considering maturely all the circumstances of the 
 case, they should be of opinion that no reasonable doubt 
 existed, and that Thornton was the person who committed the 
 crime, in justice to the public the conviction of the prisoner 
 must follow. But if that should not be the case, if they 
 should have good reason to doubt of his guilt, though they 
 could not consider him blameless, that would be a ground 
 of acquittal. 
 
 Probably the jury might think, considering the time as 
 spoken to by the last witnesses, that a good deal of the 
 mystery of this transaction had been unravelled. 
 
 That this young woman was at the dance on the night of 
 the 26th, and that this transaction happened on the morning 
 of the 27th : that the prisoner was with her at the dance 
 and during great part of the night, was perfectly clear. It 
 was clear, too, that he had had connection with her, not 
 merely from circumstances, but from his own acknowledg- 
 ment. One point material for their consideration was 
 whether that connection took place with or against her con- 
 sent. If the connection took place against her consent, and 
 a rape had been committed, that would be ground for the 
 guilty party to wish to get rid of her testimony. If there 
 were no rape, and the intercourse took place with the con- 
 sent of the deceased, whether that consent was obtained by 
 great importunity or not, that would make it less likely that 
 he should commit murder. The conduct of the prisoner, 
 too, when he was taken up, was very material to be attended 
 to in considering the probability or improbability of his 
 having been guilty.
 
 TRIAL OF ABRAHAM THORNTON. 33 
 
 But in one point of view with a view to infer the proba- 
 bility of his guilt it would be very material to consider at 
 what time the connection took place, whether before the 
 deceased went and changed her- dress at Mrs. Butler's, or 
 afterwards. Because, if they thought the connection took 
 place previous to that time, then the deceased coming to 
 Hannah Cox's, and making no complaint at all against the 
 prisoner, would show that if it had taken place before, 
 it had taken place by her consent, or that the inference 
 would be too uncertain to form any argument against the 
 prisoner. He mentioned these things because they would be 
 material in considering whether, at the periods of time at 
 which the prisoner was proved to have been at considerable 
 distances, the connection could have taken place after that 
 time, that is, if the witnesses for the prisoner had spoken 
 the truth. 
 
 It was a very commendable thing on the part of Mr. 
 Webster and Mr. Twamley that they had taken such pains to 
 ascertain the time, which was sometimes the main ingredient 
 in ascertaining facts. 
 
 In reciting Hannah Cox's testimony, his lordship observed 
 it was not material to repeat all the circumstances about the 
 deceased changing her dress, and going to Birmingham. 
 After alluding to what had occurred previous to her calling 
 at Mrs. Butler's, his lordship said he then came to a part 
 more material, namely, the time at which she called there. 
 Now, according to Hannah Cox's evidence, when the 
 deceased called at her mother's it was about twenty minutes 
 before five by her mother's clock. Her mother's clock was 
 forty-one minutes faster than Mr. Webster's watch, and his 
 watch was agreeable to Birmingham time. It was very 
 material to see at what time the deceased came to Mrs. 
 Butler's house, and what time she left ; and, therefore, what 
 space of time there was for the transactions to take place 
 between that time and the time when the prisoner was seen 
 three miles and a half from that place. It was twenty 
 minutes before five by her mother's clock ; that would be 
 one minute before four by the Birmingham time when she 
 was called up. 
 
 The gown and stockings which the deceased took off there
 
 34 TRIAL OF ABRAHAM THORNTON. 
 
 were both bloody. Her dress did not seem disordered, and 
 she appeared calm and in good spirits. 
 
 It would be ten minutes or a quarter past four when the 
 deceased went away again. It was between two and three 
 miles from thence to her uncle's, where she lived. The 
 deceased said she had slept at her grandfather's, to make an 
 excuse to her friend for having been out all night. Her 
 grandfather's house was about a quarter or half a mile from 
 the place where Hannah Cox parted with her on the pre- 
 ceding night ; and when they parted she said she was going 
 to her grandfather's. 
 
 Benjamin Carter's evidence, his lordship said, only went 
 to the transactions of the night before at the ball, and until 
 they parted. 
 
 On Umpage's evidence the learned judge remarked that 
 if the persons whom this witness heard talking in the night 
 while he sat in E-eyn olds' s house were the prisoner and the 
 deceased, it must have been previous to the time when she 
 called at Hannah Cox's. He first heard the voices about 
 two o'clock, and continued to hear them until a few minutes 
 before he left. He set out from Reynolds's house about a 
 quarter before three. Soon afterwards he saw them against 
 a stile in the fore-drove. The pit was distant about 100 yards 
 from Reynolds's house, and they must have come down 
 there, agreeably to the account which the prisoner gave in 
 his examination before the magistrate. The deceased, when 
 this witness came up to them, appeared to wish not to be 
 known, by her hanging down her head ; but that was not 
 unlikely whether anything had taken place between them 
 or not. 
 
 The period of time of their being together being about 
 three o'clock, it must have been previous to the deceased 
 having returned to Hannah Cox's, at which period they 
 certainly had been in one or more of the closes where the 
 footmarks were afterwards discovered. 
 
 Asprey saw the deceased about half-past three o'clock 
 going towards Erdington, and walking very fast, at which 
 time the prisoner was not with her; this must have been 
 when she was going to Hannah Cox's, and at that time 
 nobody was seen up the lane.
 
 TRIAL OF ABRAHAM THORNTON. 35 
 
 When Joseph Dawson saw the deceased it must have been 
 after she had changed her dress, and was returning from 
 Hannah Cox's ; and, making an allowance for Mrs. Butler's 
 clock, it would then be about ten minutes after four ; so that 
 she was then seen going on without the prisoner, and there was 
 no evidence of any person seeing her with the prisoner after 
 she had changed her dress. 
 
 In remarking upon the testimony of George Jackson, his 
 lordship said there were no footsteps on the slope down to 
 the pit, except one of a man, which was not compared ; nor 
 was this footstep seen until after Jackson had been there, 
 and whose footstep it was did not appear. Nor did it 
 appear how the bundle, the bonnet, and the shoes came 
 there ; that was a mystery which was not explained by any 
 part of the evidence. 
 
 Supposing the connection had taken place at a prior time, 
 before the deceased had returned to Hannah Cox's, then a 
 question arose whether there had been a fresh attack upon 
 her. How she came there, or for what purpose, or how 
 she came into the pond, did not appear ; but this footstep 
 was upon the very top of the slope leading down to the pit, 
 which was rather steep than otherwise, and there were no 
 other marks of footsteps. 
 
 The bonnet, the bundle, and the shoes, were found on the 
 grass about a foot from the top of the slope ; and it would 
 seem very extraordinary if the deceased, in despair, had 
 thrown herself into the water, how she came to take off her 
 bonnet and her shoes. How, therefore, the circumstance 
 took place whether she had fallen in, whether she threw 
 herself in, or how she came there, there was no evidence to 
 give information ; the evidence was not positive on that 
 point, and the conclusion, therefore, must be collected from 
 comparing together all the circumstances of the case. 
 
 William Lavell's evidence, his lordship said, was material 
 as to what was going on in the course of the night between 
 the prisoner and the deceased. He described the footsteps 
 of a man going out of the path leading towards Bell Lane, 
 and also the footsteps of a woman leading the same way. 
 These footsteps did not go off the path from the same place ; 
 but about fifteen yards from the path they joined, or came 
 
 D 2
 
 36 TEIAL OP ABRAHAM THORNTON. 
 
 together, and from their appearance, this witness thought they 
 had been running. He traced these footmarks together up to 
 the corner of the field. It was not improbable but that the 
 deceased, if she was coming that way, on seeing the man, 
 had turned to run, and that they had both run together. 
 There was a good deal of dodging about ; this dodging was 
 in a harrowed field, and therefore the footsteps could be 
 easily traced. The witness traced the footmarks up to the 
 grass by the dry pit ; the same footmarks he traced down 
 towards the water pit in the same field. It was material 
 that he could not see the footsteps of the woman on the 
 grass, while on the edge of the pit the footsteps on the grass 
 were plain to be seen. He then traced the footsteps of a 
 man running in a contrary way, which turned to the left, 
 and went down to a gate at the opposite corner of the field, 
 making a shorter cut. The inference to be drawn from 
 these circumstances was that the person, whoever he was, 
 that had done the act ran away, and that those were 
 his tracks. 
 
 From the circumstance of there being no footsteps to be 
 seen near the pit where the body was found, and from some 
 of the blood being there, the inference was that the blood 
 had fallen from a body carried ; but it was questionable, on 
 the other hand, whether the person whose blood had flowed 
 there might not have walked, because she could not be 
 tracked in other places on the grass where there were no 
 marks of blood. 
 
 When Mary Smith examined the body, which was about 
 half-past ten in the morning, she states that it was not then 
 cold, from which circumstance it was probable that the act 
 was committed so much the later in the morning. 
 
 In commenting upon the deposition of the prisoner taken 
 before the magistrate, his lordship observed, it was a circum- 
 stance deserving consideration, that the prisoner acknow- 
 ledged having had connection with the deceased before he 
 was compelled to make that disclosure, to account, on the 
 examination of his person, for the appearance of his clothes. 
 
 When Daniel Clarke first saw the prisoner, and told him 
 that Mary Ashford was murdered, he immediately answered, 
 " Murdered ! I was with her till four o'clock : " so that the
 
 TRIAL OF ABRAHAM THORNTON. 37 
 
 jury would perceive in neither of these instances was there 
 any concealment. 
 
 After concluding the evidence for the prosecution, his 
 lordship remarked it did seem that these persons, the 
 prisoner and the deceased, were upon the stile about three 
 o'clock ; so that they had been together during the night 
 about the spot where these transactions took place. He was 
 inclined to suppose that the connection had not taken place 
 before the deceased went to Hannah Cox's. If it happened 
 before, then the prisoner was never seen with her by any 
 person after she left that house. The jury were to consider 
 whether it could or could not have happened after ; and if 
 after, then whether the prisoner was the person who com- 
 mitted the act. 
 
 In commenting upon the evidence of William Jennings, 
 his lordship said it seemed, by his examination, that the 
 prisoner might have come down by the canal towing-path 
 through the meadows, and it certainly was possible that he 
 might have done so. But then he must have gone the dis- 
 tance of three miles and a half from a quarter past four 
 o'clock, and all this pursuit and the transactions which 
 followed must have taken place within the period of time 
 within which he was afterwards seen. It would have taken 
 up no inconsiderable space of time, including the running 
 and pursuit, and he thought it could not be done in a 
 quarter of an hour. If the prisoner had been running there 
 would have been an appearance of warmth in his person ; 
 but he was seen walking slowly, and without any appearance 
 of heat or confusion (a). 
 
 After going through the evidence for the prisoner, his 
 lordship said this was one of those mysterious transactions 
 in which justice could not be done but by comparing most 
 carefully all the facts and circumstances of the case, all the 
 
 (a) It is material here to observe that Thornton was a short and 
 remarkably thick-set man, with " legs as thick as hovel-posts," according 
 to his own attorney's description of him in his instructions to counsel. 
 Taking, therefore, into consideration the hedges and ditches intervening, 
 and assuming the time spoken to by the witnesses to be correct, the 
 probability of his bting able to accomplish the distance in the time 
 allowed is much lessened.
 
 38 TRIAL OF ABRAHAM THORNTON. 
 
 circumstances for, as well as those against, the accused ; and 
 before they could convict the prisoner they must be fully 
 satisfied that he was guilty of the murder. If any fair and 
 reasonable doubt arose in their minds as to his guilt, the 
 prisoner was entitled to the benefit of the doubt. But if 
 they were convinced that the evidence was satisfactory, and 
 that the crime was fully proved against the prisoner, they 
 were, in justice, bound to pronounce him guilty. Yet, in 
 coming to this conclusion, it was their duty well to consider 
 whether it was possible for the pursuit to have taken place, 
 and all the circumstances connected with it, and for the 
 prisoner to have reached Holden's house, a distance of nearly 
 three miles and a half, in so short a time a period of not 
 more than twenty minutes. 
 
 In concluding, his lordship observed to the jury that the 
 whole of the evidence lay before them, and by that evidence 
 only they were to be guided in their decision. It were better 
 that the murderer, with all the weight of his crime upon his 
 head, should escape punishment than that another person 
 should suffer death without being guilty. 
 
 The jury, after consulting about six minutes, returned, by 
 their foreman, without retiring, a verdict of " Not Guilty." 
 
 Immediately after the verdict, Thornton was put on his 
 trial before the same jury for the rape; but the counsel for 
 the prosecution having informed the Court that no evidence 
 would be offered, Mr. Justice HOLROYD directed the jury to 
 acquit him. Thereupon a verdict of " Not Guilty " was 
 returned, and Thornton was discharged.
 
 THE APPEAL OF MUKDEK. 
 
 WILLIAM ASHFORD v. ABRAHAM THORNTON. 
 KING'S BENCH, NOVEMBER 6iH, 1817. 
 
 Counsel for the Appellant: Mr. Clarke, Mr. Gurney, Mr. 
 Richardson, and Mr. Chitty. 
 
 For the Appellee : Mr. Reynolds, Mr. Reader, and Mr. Tindal. 
 
 INTRODUCTION. 
 
 THE verdict of a jury in all criminal cases is now con- 
 sidered final, and though where the prisoner is found guilty 
 the sentence may be, and in some instances is, modified or 
 remitted by the Crown, in the event of an acquittal the 
 prisoner is never again put on his trial for the same 
 offence. This, in practice, prevailed as much in Thornton's 
 time as it does now, but the law was different. It was open 
 then to the heir-at-law of a murdered person, or of a person 
 considered to be murdered, to appeal the person suspected of 
 the murder. This appeal signified nothing more than a 
 summons or challenge to the person suspected. It was, in 
 fact, a criminal prosecution put in force by one private 
 subject against another ; and it had this material distinction 
 from a public prosecution, that it sought to have the offender 
 punished, not because the crime was a public offence, but 
 because it was a private injury. In the earlier days it was 
 no doubt chiefly used as a means of extorting compensation, 
 but as civilization advanced, and offences were no longer 
 redeemable by money, this private process was, in rare 
 instances, put in force in order to ensure the infliction of 
 some punishment at least on the person suspected, though 
 no pecuniary compensation might be allowed. In Thornton's
 
 40 TRIAL OF ABRAHAM THORNTON. 
 
 time, though the right of appeal was undoubtedly in 
 existence, in practice it was quite obsolete, the last instance, 
 in a case of felony, being as far back as the reign of George 
 the Second (a) . Of its legality, however, there could be no 
 doubt; and, in fact, the decision of the King's Bench in 
 this particular instance showed that both Appeals of Murder 
 and Wager of Battel were at that time undoubtedly the law 
 of the land. 
 
 The acquittal of Thornton on the two indictments tried 
 at Warwick gave rise to a great deal of dissatisfaction, not 
 only in that county, but throughout England. An opinion 
 was formed, and rapidly gained ground, that a great failure of 
 justice had taken place; that the verdict had been given 
 against evidence ; and that the witnesses for the prisoner had, 
 in the matter of the alibi, wilfully and deliberately com- 
 mitted perjury. It is not, perhaps, to be wondered at that 
 public opinion should have been against Thornton. The 
 evidence was strong and, to persons not able or willing to 
 criticise evidence, convincing. The crime, too, assuming 
 murder to have been committed, was a most brutal one. In. 
 addition it was stated and believed that Mary Ashford's case 
 was by no means the first in which Thornton had been con- 
 cerned ; that he had been on other occasions placed in a 
 similar predicament ; but that the offence had always been 
 condoned by money, and large sums paid by his father in 
 order to avoid the disgrace of a conviction. Of the truth 
 of these assertions there was no proof; but the public did 
 not require and certainly would not pay any attention to 
 proofs that did not coincide or harmonize with their own 
 preconceived convictions. The result was, that a great and 
 unreasonable prejudice was raised up against Thornton. 
 When he appeared in his own neighbourhood again, and 
 especially when he was seen in Birmingham, crowds followed 
 and insulted him. On all sides a desire was expressed to get 
 the case re-opened. Funds were raised by subscription, and 
 ultimately it was determined at all hazards to get Thornton, 
 by means of the obsolete Writ of Appeal of Murder, put a 
 
 (a) Bamkridge and Corbett's Case, 1730, State Trials, 17, 398.
 
 THE APPEAL OF MURDER. 41 
 
 second time on his trial, in the hopes that a jury would be 
 found who would not, like the previous jury, have any hesi- 
 tation in convicting him. 
 
 The only way by which this could be accomplished was 
 by getting the heir-at-law of the deceased Mary Ashford to 
 institute the proceedings. Though both her father and her 
 grandfather were living, neither of them could claim as heir, 
 for, according to the law as it then stood, no inheritance 
 could lineally ascend. But Mary Ashford had left brothers 
 her surviving, the eldest of whom, William Ashford, would 
 be her heir-at-law. He was a young man barely of age, by 
 occupation a labourer. He was seen, and consented to the 
 proceedings proposed. The trial had taken place in August. 
 By October all the preliminaries were arranged, and on the 
 9th of the same month a writ, signed by the Secretary 
 of State for the Home Department, was directed to the 
 sheriff of Warwickshire, the Hon. Henry Verney, com- 
 manding him to cause Abraham Thornton to be re-appre- 
 hended. 
 
 In the course of the next day Thornton, who, ever since 
 the trial had been at his father's house at Castle Bromwich, 
 was arrested, by virtue of a writ issued by the high sheriff, 
 and lodged again in the custody of the gaoler at Warwick. 
 Upon being informed of the nature of the charge against 
 him, he quietly submitted without making the least remon- 
 strance. 
 
 On Thursday, the 6th day of November, 1817, the first 
 day of Michaelmas Term, this extraordinary case came 
 before the King's Bench, Lord Ellenborough (Lord Chief 
 Justice of England) , Mr. Justice Bayley, Mr. Justice Abbott 
 (afterwards Lord Tenterden), and Mr. Justice Holroyd, being 
 the Justices present. After some formal matters had been 
 disposed of, Mr. CLARKE, the senior counsel for the appellant, 
 was called upon by the Court. 
 
 Mr. CLARKE said he appeared on behalf of William 
 Ashford, on an Appeal of Murder against Abraham Thornton ; 
 and after some preliminaries, in the course of which both 
 Ashford and Thornton were brought into court and placed 
 opposite each other, and the different writs and returns 
 read, he moved that Thornton be placed at the bar in the
 
 42 TRIAL OF ABRAHAM THORNTON. 
 
 custody of the marshal of the Marshalsea, and the count 
 of appeal put in by William Ashford be read. This was 
 accordingly done, and the count, of which the following is a 
 short abstract, was read. 
 
 It commenced by stating that Abraham Thornton was 
 attached to answer the appeal of William Ashford, who was 
 the eldest brother and heir-at-law of Mary Ashford, and 
 then proceeded to charge Thornton in terms very similar to 
 the indictment with the murder of Mary Ashford on the 
 27th of May last. It concluded with averring that if 
 " Thornton denied the felony and murder, then that he, 
 Ashford, was ready to prove the same, and had found 
 pledges to prosecute." 
 
 Mr. READER. My lords, the defendant has had no notice 
 of this proceeding, and certainly, with regard to myself, as 
 the papers were only sent to me late last night, I have had 
 no sufficient opportunity to look into the subject. From the 
 rareness of cases of the kind, it will not, perhaps, be 
 expected that I should be at all points prepared ; and it is a 
 matter requiring great consideration. 
 
 Lord ELLENBOROUGH. What time do you wish for? 
 
 Mr. READER. I trust that by appearing now for the 
 prisoner it will not be considered that I waive any objections 
 I might be entitled to take in his favour. In the case of 
 Bigby, widow, v. Matt, and Pat. Kennedy (a), the Court of 
 its own act adjourned the proceedings to a future day, 
 directing that the parties accused should, in the meantime, 
 remain in the custody of the marshal. The counsel on both 
 sides declined moving for an adjournment. I hope the same 
 course will be adopted to-day, and that the subject will be 
 postponed until some time in the next week. May I be 
 permitted to ask if in cases of this sort, by the practice of 
 the Court, any time be allowed to the defendant to plead ? 
 
 Lord ELLENBOROUGH. In the case you have referred to a 
 week's time was given for the defendant to plead. 
 
 Mr. Barlow, the secondary in the Crown-office, informed 
 his lordship that the delay was allowed generally, not 
 
 (a) 5 Burr. 2643, and 2 Blackst. 714.
 
 THE APPEAL OP MURDER. 43 
 
 for the purpose merely of giving the defendant time to 
 plead. 
 
 Mr. Justice ABBOTT. The week's time to plead was given 
 in another case, not in that. 
 
 Lord ELLENBOROUGH. Giving that time will not prejudice 
 you when you come up under the rule on the dies data ; you 
 will be heard without any consideration that you have prayed 
 the delay. What time will be convenient ? 
 
 Mr. READER. Monday se'nnight. In the meantime it 
 will be necessary for me to pray, on behalf of the prisoner, 
 oyer and copies of the original writ, the return, and the 
 declaration. 
 
 Lord ELLENBOROUGH. You shall have access to them at 
 any time for your convenience for the purpose of collecting 
 the contents ; but I do not know that the Court is prepared 
 to say that copies ought to be delivered to you. 
 
 Mr. READER. In one of the cases now in the hands of 
 your lordships it was permitted. 
 
 Mr. CLARKE .->-The case alluded to by Mr. READER was 
 long before the authority in Douglas, where it is said that 
 the Court will not grant oyer of the original writ. 
 
 Lord ELLENBOROUGH. The last case is that of Bonner; 
 but the proceedings there were ore tenus, and the Court did 
 not grant oyer. You may have it read, so that you can take 
 down what is necessary for your purpose. 
 
 Mr. READER requested that the officer would read the 
 document slowly, that it might be taken down in shorthand. 
 
 Lord ELLENBOROUGH. This is a proceeding in which, 
 perhaps, a copy may be very material ; but it is important 
 that we should adhere to the established course, or the 
 privilege might be claimed in all criminal cases. 
 
 The original writ of appeal was then read aloud by the 
 officer of the Court, as well as the return and the count of 
 the plaintiff appellant. After this had been concluded, Mr. 
 READER applied to know if on the future day the prisoner 
 must attend. 
 
 Lord ELLENBOROUGH. Let him be committed to the 
 custody of the marshal of the Marshalsea, and be brought 
 up again on Monday se'nnight, and the same day the 
 plaintiff appellant must appear.
 
 TRIAL OF ABRAHAM THORNTON. 
 
 AVith this adjournment the proceedings ou the first day 
 terminated, and Thornton was removed in the custody of 
 the marshal of the Marshalsea. 
 
 ON Monday, the 17th, the case again came on for hearing. 
 The Court was crowded to excess, and long before the doors 
 opened a great number of persons were assembled on the 
 outside, in the hope of admittance. It was only with great 
 difficulty, and after strong resistance, that the avenues to 
 the Court were cleared. The same counsel appeared as on 
 the former occasion. Thornton was brought into court in 
 custody of the tipstaff and the keeper of the Marshalsea 
 Prison, and placed in the centre of the front row of barristers, 
 behind the King's counsel, Mr. READER being upon his left 
 hand, and Mr. REYNOLDS behind him. 
 
 Mr. Le Blanc, the master of the plea side, then rose and 
 read the count delivered in by Ashford on the first day of 
 term, an abstract of which has been already given ; and, 
 addressing Thornton, said : " Abraham Thornton, how say 
 you ; are you guilty of the felony and murder whereof you 
 are appealed , or not guilty ? " 
 
 Mr. READER immediately put a paper into Thornton's 
 hand, on which were written the following words : " Not 
 Guilty ; and I am ready to defend the same by my body." 
 Thornton read out these words to the court, but rather 
 inaudibly. He then took from his counsel, Mr. READER, a 
 pair of new buckskin gloves or gauntlets, of antique form, 
 and embroidered in a peculiar manner, one of which he put 
 on his left hand, and the other he flung down upon the 
 floor of the court into the " well " between the front row, 
 where the King's counsel were sitting, and the bench. In 
 falling it struck Ashford, who was in front of the King's 
 counsel, facing Thornton, on the head, and then fell at his 
 feet. Ashford stooped to pick it up, and at one moment 
 there was a possibility of the challenge being really accepted ; 
 but a very audible whisper of " Let it lie " induced Ashford 
 to relinquish his intention. Mr. READER then moved that
 
 THE APPEAL OF MURDER. 45 
 
 the gauntlet be kept in the custody of the officer of the 
 court, which was accordingly done (a) . 
 
 Mr. CLARKE then rose, and said that he appeared on 
 the part of the appellor. 
 
 Lord ELLENBOROUGH. The appellor must be called. 
 
 Mr. CLARKE. He is in court. 
 
 William Ashford then stood up, but Lord ELLENBOROUGH 
 said that he must be formally called into court, which was 
 done by Mr. Le Blanc : and Mr. CLARKE, the counsel for 
 Ashford, then addressed the bench as follows : 
 
 Mr. CLARKE. My lords, I did not expect at this time of 
 day to have heard this sort of demand made in answer to 
 the charge that has been brought against the prisoner, viz., 
 that the issue should depend, not upon a trial before a jury, 
 but upon a trial by battel. At least, we may say that it is 
 an obsolete practice, and it may be considered a very extra- 
 ordinary and astonishing circumstance that a person charged 
 with the crime of murder should be permitted to repel that 
 charge by committing another murder ; such a proceeding 
 is both ancient and barbarous ; but I shall exhibit the 
 appellor before your lordships, and you will see that he is 
 not a person 
 
 Lord ELLENBOROUGH (interposing). I wish only to cor- 
 rect an expression you have used. You say, " by committing 
 another murder." If it be the law, what the law authorizes 
 is not murder. 
 
 Mr. CLARKE. I beg your lordship's pardon. I should 
 have said, " by killing the brother of the person murdered/' 
 I apprehend that on inquiry your lordships will find that the 
 allowance of this plea is in a great measure discretionary, 
 viz., whether they will permit battel in this case to take 
 place. I do not say that it is a matter entirely discretionary, 
 but that it depends in some degree upon the reason of the 
 
 (a) The gaxintlet, the fellow of the one thrown down, and the same 
 that Thornton put on his left hand, is now in the possession of Mr. 
 E. Sadler, of Sutton Coldfield, whose grandfather acted for Thornton 
 in this appeal. Neither in the Queen's Bench, Crown Office, nor Record 
 Office, can any trace now be found of the gauntlet ordered to be filed, or 
 of the papers in the case. Probably they were all destroyed or lost when 
 Paper Buildings were burnt down.
 
 46 TRIAL OF ABRAHAM THORNTON. 
 
 case. If the court, on the exhibition of the appellor, finds 
 that he is of weak body, and on that account incapable, that, 
 I believe, is sufficient. 
 
 Mr. Justice BAYLEY. Have you any authority for so 
 stating ? 
 
 Mr. CLARKE. The authorities I have are only examples 
 of what may be an answer to the claim of trial by battel. 
 
 Mr. READER. The court will not suppose that I mean 
 unfitly or unpleasantly to interrupt Mr. CLARKE, but I 
 apprehend that he is now adopting a new course of proceed- 
 ing, not warranted by any authorities. If there be any 
 objections to the wager of battel demanded by the appellee, 
 they must be made by counter-pleading, and not by state- 
 ment of counsel. 
 
 Lord ELLENBOROUGH. Do you wish, Mr. CLARKE, to 
 counter-plead ? 
 
 Mr. CLARKE. Certainly; and we further request that 
 time may be. allowed to enable us to prepare our counter-plea. 
 
 Lord ELLENBOROUGH. In a proceeding so antiquated and 
 obsolete, to grant time is certainly a matter of strict justice 
 to you. I do not apprehend that any resistance would be 
 made to it on the part of the appellee. 
 
 Mr. READER. Certainly not. 
 
 Lord ELLENBOROUGH (to Mr. CLARKE). What time 
 would be convenient to enable you to prepare your 
 counter-plea ? 
 
 Mr. CLARKE. I fancy we should be ready by Thursday 
 next. 
 
 Lord ELLENBOROUGH (after consulting with the other 
 judges). Perhaps Friday might be more convenient to the 
 court. 
 
 Mr. CLARKE. Any day after Thursday that may be 
 appointed will answer our purpose. 
 
 Lord ELLENBOROUGH again consulted the rest of the 
 bench, and said that Saturday would, on several accounts, 
 be preferable. 
 
 Mr. READER then addressing their lordships, said : "I have 
 to pray the indulgence of the court for one word, the object 
 of which is to put the defendant in the situation in which he 
 is entitled to be placed, both before your lordships and the 
 public. It has been our only and for myself I may say
 
 THE APPEAL OP MURDER. 47 
 
 anxious duty to consider and advise the appellee what course 
 he ought to adopt; and I have no difficulty in declaring 
 that we determined to recommend him to take this step, on 
 account of the extraordinary and, I may add, unprecedented 
 prejudice disseminated against him throughout the country 
 in regard to this unfortunate transaction." 
 
 Mr. READER having made this undoubtedly true explana- 
 tion of the reasons for adopting the course determined upon, 
 Lord ELLENBOROUGH ordered that the prisoner should he 
 remanded, and he brought up again on Saturday, when the 
 other side would be ready with the counter-plea. 
 
 Mr. GURNEY observed that in consequence of the con- 
 fusion prevailing at the time in court, the precise terms of the 
 prisoner's plea had not been heard. He therefore requested 
 that the master, to whom the paper had been handed, should 
 read the contents distinctly. 
 
 Mr, READER said that the appellee pleaded ore tenus, but in 
 order to avoid mistake the precise form had been written down. 
 
 Mr. Le Blanc then read these words, "Not Guilty ; and he 
 is ready to defend the same by his body." 
 
 Lord ELLENBOROUGH. Mr. CLARKE, as this is a matter 
 of strict form, the court wish to know whether you pray 
 time to counter-plead, or whether you pray time generally. 
 
 Mr. CLARKE. To counter-plead, my lord. 
 
 With this the proceedings for the day terminated, and 
 Thornton was removed in custody, to be brought up again on 
 the day fixed for the adjournment. 
 
 Accordingly on the next Saturday, the 22nd November, 
 the court again met, and all parties appearing, the appellant, 
 by his counsel, put in his counter-plea, which he verified on 
 oath, and it was then read. It is a very lengthy document. 
 In substance it was to the following effect : That Thornton 
 ought not to have wager of battel, because there were 
 violent presumptions that he was guilty of the murder. 
 That on the morning of the 27th May, at about seven, 
 Mary Ashford was found drowned in a pit of water, with 
 marks of violence upon her, and her clothes torn. That 
 about forty yards from the pit there were the impress on the 
 clover-grass of a human body and the marks of blood, and 
 blood and marks also on the clover-grass leading from the 
 impression in the direction of the pit ; but no marks of
 
 48 TRIAL OF ABRAHAM THORNTON. 
 
 footsteps over the said clover-grass, which was wet with dew. 
 That on the previous evening Mary Ashford and Thornton 
 had been at the dance at Clarke's house, and that Thornton 
 had made use of a coarse expression concerning her, and 
 that they left together about twelve and went towards 
 Erdington. That about three they were seen together at a 
 stile near Bell Lane. That about four Mary Ashford went 
 to Mary Butler's house for her clothes which she had left the 
 previous day, and remained there about a quarter of an hour, 
 and appeared in good health and perfect composure of mind. 
 That she then left (about a quarter past four), and a quarter 
 of an hour after was seen going in the direction of Langley, 
 where she lived. That to get to her residence she had to 
 pass along a footpath leading from Bell Lane across a newly- 
 harrowed field, next adjoining the close in which was and 
 is the pit where the body was found. That there were 
 footsteps on the said field, which, being carefully examined 
 by divers ^ credible witnesses, corresponded with the shoes 
 worn by Mary Ashford and Thornton respectively ; and that 
 it appeared from such footsteps that Mary Ashford had been 
 endeavouring to escape from Thornton. That Thornton had 
 overtaken her, and that they had walked together in a 
 direction leading to the said pit, and towards the spot where 
 the impression of a woman's figure was found. That the 
 footsteps ceased at about forty yards from the pit on account 
 of the hardness of the ground. That Thornton's footsteps 
 were traced also back from the said pit, and that near the 
 edge of the pit was the mark of a man's left foot. That 
 Thornton had on, on that morning, shoes that were fitted for 
 his right and left feet respectively, and that his person was 
 examined, and his clothes found bloody. Such was the sub- 
 stance of the count put in by the appellant, setting forth, in 
 fact, the more salient points on which the prosecution had 
 mainly relied to convict Thornton on the trial, and it prayed 
 that Thornton should not be admitted to wage battel. 
 
 On the application of Thornton's counsel time to reply 
 was granted, and the case adjourned until the second day of 
 Hilary Term, the 24th January, 1818, when, Thornton being 
 again brought into court from the King's Bench Prison, 
 the proceedings were resumed.
 
 THE APPEAL OF MURDER. 49 
 
 Mr. CLARKE. My lord, I attend here as counsel for the 
 appellor, William Ashford, who was ordered by the court 
 last term to attend to-day to hear the replication of Abraham 
 Thornton, the appellee, to his counter-plea. 
 
 Mr. READER. I also appear, my lord, as counsel for the 
 defendant. 
 
 Mr. CLARKE. I believe the proper description of your 
 client is the appellee. 
 
 Mr. READER. I am told I should have said, I appear on 
 behalf of the appellee. Be it so. I attend on the part of 
 the appellee, who is ready with his replication, and prepared 
 to verify the same on oath. 
 
 Thornton then stood up and swore to the truth of the con- 
 tents of his replication, which was handed to Mr. Le Blanc 
 to read. In length it greatly exceeded the counter-plea of 
 the appellant. In substance it was shortly as follows : 
 
 That there were strong and violent presumptions of his 
 innocence, for that on the morning in question Mary Ashford, 
 alone and unaccompanied, left the house of Mary Butler at 
 a quarter past four. That she was seen shortly after in Bell 
 Lane, and again, crossing the highroad going towards the 
 footpath, Thornton not being in her company. That the 
 road was broad, and that he (Thornton), if with Mary 
 Ashford at the time, might have been seen at a considerable 
 distance. That at half-past four, and not later than twenty- 
 five minutes to five, he (Thornton) was seen walking slowly 
 along a lane leading from Erdington to Castle Bromwich, 
 close to John Holden's house, being his (Thornton's) direct way 
 home ; and that after going a mile further on the same road 
 he was seen by John Hay don, at ten minutes to five, with 
 whom he stopped and conversed for a quarter of an hour, and 
 then went home. That the distance from Mary Butler's 
 house to the pit by Bell Lane, and across the harrowed field, 
 was one mile two furlongs and thirty yards ; and the distance 
 from the workhouse at Erdington, the nearest part of the 
 village of Erdington, to Holden's farmhouse along the road 
 leading to Castle Bromwich was one mile three furlongs and 
 sixty-two yards ; and the distance from the pit round by 
 Erdington to Holden's house was two miles and four 
 furlongs at the least. That the nearest way from the pit to
 
 50 TRIAL OF ABRAHAM THORNTON. 
 
 Holden's, and the shortest in time was from the pit across 
 some closes into the Chester Road, near the garden wall of 
 John Hipkins, then across the road and across certain other 
 inclosures into a lane leading by Mr. Laugher's house, and 
 so along another lane to Holden's, and the distance by this 
 route was one mile seven furlongs and 170 yards (fifty yards 
 short of two miles), and the distance in a straight line was 
 one mile four furlongs and sixty yards. That there was no 
 footpath along the latter route, and from intersections and 
 inclosures it would require far more time than the road 
 secondly pointed out. That the time of Mary Butler's 
 clock and the clock at Holden's farmhouse were both on the 
 same day noted, and the time above given was the true time 
 as kept at Birmingham on that day. That on his apprehen- 
 sion he voluntarily made a statement, reduced afterwards to 
 writing, in which he gave an account of the several places at 
 which he had been on the night of the 26th of May, and 
 morning of the 27th, and that no fact stated by him had 
 been contradicted, but that on the contrary his statement 
 had been wholly confirmed. 
 
 It then set out at full length the indictment for the murder 
 of Mary Ashford, and also the indictment for rape, and the 
 acquittal on both; and in conclusion, submitted that the 
 facts set forth by him in his replication were stronger, and 
 afforded stronger and more violent presumptions of innocence 
 than those set forth by the appellant, and prayed that he 
 might be admitted to wage battel. 
 
 The appellant demurred to this replication, and the case 
 was again adjourned until the 29th of January, when Mr. 
 CLARKE put in his demurrer. Thereupon Mr. READER 
 joined issue, first verbally and afterwards in writing, and the 
 6th day of February was fixed for the hearing of the 
 demurrer, it being understood that on that day the real 
 arguments in the case would commence. Thornton, who 
 was stated to have listened most attentively to the proceed- 
 ings, and whose conduct and demeanour generally are 
 described to have been on the whole decidedly prepossessing, 
 was then removed again in custody.
 
 THE APPEAL OF MURDER. 51 
 
 On the 6th day of February, 1818, the Court of King's 
 Bench was again thronged, both inside and out, by numbers 
 of persons anxious to catch a glimpse of Thornton, and to 
 hear, if possible, some of the arguments. 
 
 On the Bench were the Lord Chief Justice of England, 
 Lord Ellenborough, Mr. Justice Abbott, Mr. Justice Bayley, 
 and Mr. Justice Holroyd. In the interval since the last 
 adjournment the counsel on both sides had been reinforced. 
 On the side of the appellant, Mr. Chitty, a most able and 
 learned lawyer, appeared for the first time ; and on the side 
 of Thornton Mr. Tindal, afterwards Chief Justice of the 
 Common Pleas. According to custom the case was argued on 
 both sides by the junior counsel. 
 
 At the sitting of the court, when Thornton had been 
 placed at the bar, Mr. CHITTY rose and addressed the court 
 on behalf of his client. His arguments took several hours in 
 delivery, and many days of anxious and laborious investiga- 
 tion had no doubt been previously employed in their 
 preparation. 
 
 He commenced by observing that the right of appeal had 
 its origin in common law, but that from time to time many 
 exceptions having been allowed to it, the right was even- 
 tually confirmed by the Statute of Gloucester (6 Ed. 3, c. 8), 
 provided the appeal was brought within a year and a day 
 after the deed done. That subsequently a practice had arisen 
 not to put persons on their trial until the time limited for the 
 appeal had expired, which, being found a great practical 
 injustice, was remedied by another Act (3 Hen. 7, c. 1), 
 providing that no previous acquittal on an indictment should 
 be a bar to the appeal. This statute, Mr. CHITTY submitted, 
 expressly recognized the right the heir had at common law 
 to bring an appeal for the death of his ancestor, and par- 
 ticularly that the acquittal of the defendant was no bar to 
 the suit. And he urged that the only point to consider was 
 whether the appellee (Thornton) having in answer to that 
 appeal pleaded his right to wage battel, that right had been 
 at any time taken away. 
 
 In support of the proposition that the right had been in 
 fact taken away, Glanville, writing in the time of Henry the 
 Second, was cited as an authority. In his book (lib. 14, c. 1) 
 
 E 2
 
 52 TRIAL OF ABRAHAM THORNTON. 
 
 Mr. CHITTY showed it was laid down that in the case of an 
 appeal, if it appeared that there was probable ground of 
 suspicion, the party was not to be allowed to try the 
 question by battel, but by ordeal, and that the accuser 
 might decline battel, either on account of age or mayhem. 
 Bracton also, he said, had laid it down that if the defen- 
 dant, being accused of a crime, denied it, he might have, the 
 option whether he would place himself on his country or 
 defend himself with his person ; and that it was the duty of 
 the judges ex-officio to inquire into the matter and cause of 
 the appeal, and if found correct, then to award trial of 
 battel ; but with this important proviso, that if there were 
 any violent presumptions of guilt against the defendant 
 which could not be proved away as if any one were found 
 over a dead body with a bloody knife wager of battel could 
 not be awarded him. And this, Bracton said, was the usual 
 custom in cases where no proof was required. But where 
 there was a violent presumption of guilt against the 
 appellant, there was no occasion to prove it either by the 
 body or by the country. 
 
 Lord ELLEXBOROUGH. Then according to this, a man 
 who may be found standing over the body with a bloody 
 knife must of necessity be held to be guilty. 
 
 Mr. Justice ABBOTT. And a person coming accidentally 
 by, and finding the man wounded, draws the dagger from his 
 body with a view to saving his life ; if that person is found 
 with the bloody dagger in his hand, he is of consequence 
 guilty of the murder. 
 
 Mr. CHITTY. That hasty construction of guilt was 
 abandoned afterwards ; I merely state the case with a view 
 of showing that where the fact was considered self-evident, 
 the party was pronounced guilty, and that the same principle 
 now leads to persons being sent to a jury. 
 
 Mr. Justice BAYLEY. He certainly has a right to explain 
 the fact of his being found with a knife in his hand, and 
 there is no other way of doing it but by a trial before a 
 
 jury- 
 Mr. CHITTY. Subsequent writers so explained these 
 
 terms. 
 
 Lord ELLEXBOROUGH. What I infer from Bracton is, that
 
 THE APPEAL OF MURDER. 53 
 
 he considered there was no occasion for trial, either by battel 
 or the country, in cases where the fact exists of a bloody 
 knife being found in the hand of the accused. 
 
 Mr. CHITTY. It is that for which I contend ; but I wish 
 my argument to apply only to cases of trial by battel. 
 
 Mr. Justice BAYLEY. Suppose the appellee denies that he 
 had the bloody knife in his hand, how is he then to be 
 tried ? 
 
 Mr. CHITTY. By his country. 
 
 Mr. Justice BAYLEY. Then Bracton is at variance with 
 himself; for he says that if that fact is alleged, the appellee 
 is not entitled to trial either per corpus or per patria. 
 
 Mr. CHITTY. Bracton further says : " Likewise if a 
 person shall have lain in any house at night, alone with any 
 other, and he shall have been murdered, or if there have been 
 two or more there, and they shall not have raised a hue and 
 cry nor received a wound from the robbers, or others who 
 committed the murder, in endeavouring to defend themselves, 
 nor yet have pointed out from among themselves or others 
 the person who slew the man, they shall not have it in their 
 power to deny the death. In these cases the appellee shall 
 not have his choice whether he will put himself upon the 
 country, or defend himself by his body." 
 
 Lord ELLENBOROUGH. There is no exception there to the 
 case of a man being asleep at the time a murder might have 
 been committed in the house in which he was. A man may 
 have been asleep all the time, and yet summary justice is to 
 follow without trial of any sort. 
 
 Mr. CHITTY. Such seems to have been the law, my lord. 
 
 Lord ELLENBOROUGH. I do not contradict it ; but one 
 retires with a degree of horror from the consideration of 
 such laws. 
 
 Mr. Justice BAYLEY. It appears that in those times a 
 man could not escape capital punishment, unless the justice 
 thought fit that the truth ought to be inquired into by a 
 jury of the country. 
 
 Mr. CHITTY. What I mean to urge from the authority 
 I have quoted is that where a man's character is blackened 
 by evident appearances of guilt, he is not entitled to his 
 wager of battel.
 
 54 TRIAL OF ABRAHAM THORNTON. 
 
 Lord ELLENBOROUGH. Even a trial by jury was within 
 the merciful consideration of the justice. "What was to be 
 done if a man was refused his trial by battel or by his country ? 
 
 Mr. CHITTY. The ordeal was not then practised ; he was 
 therefore hung. Where there was a degree of doubt, the 
 justice allowed the trial per patria. 
 
 My next authority is Home's Mirror, p. 158, written 
 in the time of Edward II., A. D. 1307. It is there laid 
 down as follows : " And there are divers causes to oust 
 the defendant in the appeal of battel, for it is said that if an 
 infant within age bringeth an appeal, or if a woman bringeth 
 an appeal of the death of her husband, the defendant shall 
 lose the advantage of battel ; for he cannot combat or do 
 battel with a woman. And if a party be indicted of the 
 felony or murder, he shall not wage battel." 
 
 Lord ELLENBOROUGH. Then the appellee is not entitled 
 to wage battel if a bill of indictment has been preferred 
 against him ? 
 
 Mr. CHITTY. If the bill has been found by the grand jury, 
 that was considered a presumption of guilt. The next extract 
 I shall cite is from Staundforde's Pleas of the Crown, 
 published in 1567, entitled " Trial by Battel, and Counter- 
 Plea to Battel." The extract is as follows : " Trial by battel 
 is another trial which the defendant in appeal of felony may 
 elect; that is to fight with the appellant by way of trial, 
 whether he is guilty of the felony or not ; and if the event of 
 such battel be so favourable to the defendant that he vanquish 
 the appellant, he shall go quit with respect to the appellant, 
 and bar him of his appeal for ever. And this is an ancient 
 mode of trial in our law, and one much used in times 
 past, as appears by divers precedents in the time of Kings 
 Edward III. and Henry IV. ; a mode which is not disused, 
 but may be brought into practice again at this day if the 
 defendant please, and there be nothing to support the counter- 
 plea of the other party- 
 
 " The reason why a man shall be admitted in a case of 
 appeal to tiy his cause by battel seems to be this, that no 
 evident or probable matter appears against him to prove him 
 guilty, but only a bare accusation. For in that the appellant 
 demands judgment of death against the appellee, it is more
 
 THE APPEAL OF MURDER. 55 
 
 reasonable that he should hazard his life with him for trial 
 of the cause if the defendant require it, than put him on the 
 country, which for want of evidence may be ignorant of the 
 matter ; and that he should leave God, to whom all things 
 are open, to give the verdict in this cause, by awarding 
 victory or defeat to one or the other party according to his 
 pleasure. And hence our books are that if there be any- 
 thing which can serve the plaintiff for presumption or testi- 
 mony that his cause is true, he shall oust the defendant of his 
 trial by battel ; as, for instance, where one is taken with a 
 bloody knife over the dead body, in which case he is not 
 allowed to deny the death, nor is any other proof requisite 
 by long-established decision." 
 
 Mr. CHITTY then proceeded to read an extract from the 
 same author, for the purpose of showing that a man charged 
 with a felony and breaking prison after he was arrested, was 
 ousted of his wager of battel. He might however plead his 
 pardon, and be restored to that right. Vehement presump- 
 tion of guilt, the infirmity or imbecility of the appellant, wer3 
 also grounds for ousting an appellee of his battel ; and he then 
 read to the court some extracts from Hearn's Antiquarian 
 Discourses, an author of considerable celebrity, who collected 
 all the arguments on the subject, urging on the court that 
 trial by battel was only permitted where there was an absence 
 of evidence to establish the appellant's charge. Several 
 other authors were also cited, to show that where there 
 were notorious presumptions of guilt against the appellee, 
 as if he were discovered in the act, or had been indicted, the 
 right of wager of battel was taken away. The curious and 
 interesting case of Slaughterford was quoted amongst others, 
 and was in its circumstances very similar to Thornton's. 
 Slaughterford had been tried for the murder of a young 
 woman, and acquitted. The brother of the deceased then 
 appealed him of the murder, and he was tried a second time 
 before Lord Chief Justice HOLT, convicted, and executed. 
 This was strongly urged in the court as showing that an 
 indictment and acquittal would oust the appellee of his 
 battel. In an antiquarian point of view these cases and argu- 
 ments are no doubt both interesting and instructive, but it 
 is not necessary to give them here in full. The main point,
 
 56 TRIAL OF ABRAHAM THORNTON. 
 
 or one of the main points in the case was, whether assuming 
 a presumption of guilt was sufficient to oust the appellee's 
 right of battel, that presumption of guilt was fully set up by 
 the counter-plea. To this point Mr. CHITTY then addressed 
 himself. 
 
 It is shown, he said, in the counter-plea that on the 27th 
 of May, Mary Ashford was found dead in a pit of water ; 
 that she had been recently alive and had come to her death by 
 drowning; that her arms had been forcibly grasped, and that 
 there were stains of blood about her body, and that she 
 had been murdered by throwing her into the pit. 
 
 Mr. Justice BAYLEY. You have said nothing from which 
 it is to be inferred that she had been thrown in. What is there 
 to show that she did not throw herself in, or tumble in ? 
 
 Mr. CHITTY. We show marks of blood, and marks upon 
 the dew, from which it was manifest that some one had been 
 carried in the arms of another person. She could not have 
 walked herself, or the trickling of blood would have been 
 closer than was evinced by the footsteps. 
 
 Mr. Justice BAYLEY. You do not allege that the clover 
 was not marked before ; you do not state whether the blood 
 was there before the dew came or after. 
 
 Mr. CHITTY. We state that it was not brushed away, 
 except by the blood. 
 
 Mr. Justice BAYLEY. You cannot by that mode of state- 
 ment exclude the party from his legal claim. You have not 
 positively stated that the dew had been displaced by the 
 blood. 
 
 Mr. CHITTY. My lord, in forming a counter-plea the 
 same strictness is not required as in an indictment. We 
 only state the probability of the facts, and it may be true 
 that we state them with less particularity than in the indict- 
 ment itself. Here is a distinction between the counter-plea 
 and an indictment. 
 
 Mr. CHITTY then went 011 to read the counter-plea as 
 follows : " That the appellee had declared on the preceding 
 night, in gross and obscene language, that he would have 
 criminal knowledge of the said Mary Ashford. That he was 
 seen with her about three o'clock on the same morning near 
 the spot where the murder was committed."
 
 THE APPEAL OF MURDER. 57 
 
 Mr. Justice BAYLEY. You omit to state the fact that she 
 left a particular house at twelve at night, and that at three 
 o'clock she was seen near a stile in Bell Lane, near a har- 
 rowed field. 
 
 Mr. CHITTY. The counter-plea states " that his footsteps 
 were traced near to the pit where sne was drowned, and that 
 it was manifest that he had then recently pursued her, and 
 that she had attempted to escape, hut that he had overtaken 
 her." 
 
 Mr. Justice BAYLEY. You have not alleged that he ran 
 from the pit, but he ran across that field in a direction from 
 the pit. 
 
 Mr. CHITTY. The counter-plea then states "that there 
 were marks of footsteps running away from the pit, and that 
 these marks resembled those of the defendant, and that near 
 the edge of the pit there was the mark of a man's left 
 foot." 
 
 Mr. Justice BAYLEY. It is not described as a recent im- 
 pression. It states that it was the impression of a man's left 
 foot, but you do not show that it corresponded with the foot 
 of Thornton. 
 
 Mr. CHITTY. We state that he wore shoes on the night 
 in question manufactured for his right and left feet 
 respectively. 
 
 Mr. Justice BAYLEY. You do not say that the left shoe 
 of the appellee was compared with the impression at the side 
 of the pit, nor do you state that it was impossible for a com- 
 parison to have been made from the state in which the 
 impression then was. It was easy to have stated that a 
 recent impression on the dew might have been displaced, and 
 that it was impossible to tell by comparison whether 
 Thornton's shoe fitted it or not. 
 
 Mr. CHITTY. We might have stated this, but we did not 
 feel ourselves justified in going beyond the evidence that was 
 before us. The counter-plea then goes on to state " that on 
 the morning of the said 27th of May, when the said Abraham 
 Thornton was apprehended, he was stripped, andthat the inside 
 of his clothes was marked and stained with blood." The 
 appellant then avers that he is prepared to prove these alle- 
 gations by several credible witnesses, and he has verified his
 
 58 
 
 TRIAL OF ABRAHAM THORNTON. 
 
 plea by affidavit, which if not true, of course exposes him 
 to a prosecution for perjury. This statement, I submit, affords 
 strong presumption of guilt. The coarse declaration also of 
 the defendant, and his subsequent admission of a carnal 
 knowledge of the deceased, accompanied with other circum- 
 stances of the case, afford strong evidence of guilt. I rest 
 with confidence for the decision of the court in my favour, 
 upon the declaration of the appellee himself of his intention 
 to have illicit intercourse with the deceased; his subsequent 
 admission that this intercourse had taken place ; the state of 
 his linen, and the variety of other suspicious circumstances, 
 which all tended to confirm the supposition of his guilt, and 
 to point out the necessity, as well as the probable ground of 
 another investigation before a jury of his country. It now 
 remains for me to establish, that the replication of the 
 defendant is insufficient. No case can be found in the books 
 in which an appellee has been permitted to reply, or has even 
 attempted to reply, fresh facts by way of counter-presump- 
 tion of innocence. The only answer he can give to the 
 counter-plea is a traverse of the facts upon which the pre- 
 sumption of guilt is founded. The appellant's counter -plea 
 establishes a primd facie case sufficient to go to a jury, and 
 therefore sufficient to preclude a trial by battel ; it at least 
 establishes sufficient to excite suspicion. 
 
 Lord ELLENBOROUGH. Do you contend that a case of sus- 
 picion is sufficient to oust the appellee of his right to wage 
 battel? 
 
 Mr. CHITTY. Yes, my lord. 
 
 Lord ELLENBOROUGH. You have fallen then from the high 
 ground which you first took, on which you establish your right 
 to resist the claim of the appellee upon a case of strong proof 
 of guilt. Now it is suspicion merely. 
 
 Mr. CHITTY. All I contended for or meant to urge was 
 that strong pregnant suspicion, and presumption of guilt, 
 were sufficient to establish a case for rejecting the claim of 
 battel. I have already shown that this is a mode of termi- 
 nating the prosecution not to be resorted to unless there be an 
 absence of evidence. If the defendant be prepared to prove 
 an alibi, he may trust his case with a jury, and ought not to 
 resort to a mode of trial which must by every one be repro- 
 bated. But supposing that it was competent to the defendant
 
 THE APPEAL OF MURDER. 59 
 
 to reply other facts, in order to establish a counter-presump- 
 tion of innocence, still I submit that the facts as pleaded do 
 not amount to a sufficient alibi or negative of guilt. It is 
 observable that the defendant states that Mary Ashford left 
 Mary Butler's house about half an hour after four o'clock in 
 the morning, and that within a quarter of an hour after 
 that time she was seen near the pit. It is then averred that 
 not later than twenty-five minutes before five the defendant 
 was seen near John Holden's house, which is afterwards shown 
 in the replication to be, in the nearest direction, not less than 
 one mile, four furlongs, and sixty yards from the pit. There 
 is no averment of the precise time when Mary Ashford was 
 last seen ; but the time is carefully stated under a videlicet, 
 and a few minutes would have afforded ample time for the 
 commission of the violation and murder, and the arrival of 
 the defendant at John Holden's house, so that admitting all 
 the allegations in the replication to be true, it by no means 
 follows that an alibi is established. There is no averment in 
 general or particular terms that the defendant was not at 
 the pit, or could not have been there at the time of the death, 
 or that there was not time enough between the instant Mary 
 Ashford was last seen and when the defendant was seen at 
 John Holden's for the defendant to have escaped from the 
 pit to that place. It is not averred that the defendant used 
 no horse or other expeditious mode of conveyance. 
 
 Mr. Justice BAYLEY. How can a man prove a fact at 
 which there could be but two persons present, one of whom 
 is dead, and the other could not be a witness for himself. 
 
 Mr. CHITTY. He has not avowed that he was not near 
 the pit. 
 
 Mr. Justice BAYLEY. He raises the fact, and upon that 
 creates a question whether the illicit intercourse with the 
 deceased did or did not take place before she went to Mary 
 Butler's ? 
 
 Mr. CHITTY. From the situation in which the violence 
 was committed, which was apparent from the imprint of her 
 body upon the ground, it was impossible that he could have 
 accomplished his purpose before she went to Mary Butler's. 
 He has not averred, however, that such was the fact. 
 
 Mr. Justice ABBOTT. Nor have you averred that the vio- 
 lence took place after she quitted Mary Butler's.
 
 60 TRIAL OF ABRAHAM THORNTON. 
 
 Mr. Justice BAYLEY. You only allege that some person 
 had carnal knowledge of her, without averring positively that 
 the appellee was that person. 
 
 Mr. CHITTY. We have only stated that which has been 
 sworn. It appears to me that the defendant has not suc- 
 ceeded in establishing in any respect an alibi, nor has he 
 answered in a satisfactory way what became of him between 
 half-past three o' clock and ten minutes to five, when he was 
 seen at Holden's. 
 
 Mr. Justice BAYLEY. You do not state it quite accurately. 
 The facts are these, Mary Ashford left Mary Butler's about 
 a quarter past four, and near a quarter of an hour after- 
 wards she was seen on foot in Bell Lane. 
 
 Mr. CHITTY. We are considering whether there is suffi- 
 cient presumption of guilt to warrant the rejection of his 
 wager of battel. It is clear by his own showing that fifteen 
 minutes remained to him during which he might have com- 
 mitted both the violation and the murder. 
 
 Mr. Justice BAYLEY. He says, even supposing him to have 
 been with Mary Ashford at the time she was seen going 
 towards Bell Lane, that he had to get her to the place where 
 the criminal intercourse happened then to carry her to the 
 pit, and throw her in, and be by John Holden's, which was 
 a distance by the nearest way of at least a mile and a quarter, 
 and by the readiest road nearly a mile and seven furlongs ; 
 and all this must have happened, too, at a time of day when 
 there were a good number of people about. 
 
 Mr. CHITTY. There were marks of running footsteps from 
 the pit. 
 
 Mr. Justice BAYLEY. The difficulty is whether those steps 
 were imprinted before four o'clock or after, the appellee and 
 the deceased having been seen walking publicly together 
 towards the pit. Whether before four or after was the 
 question. 
 
 Mr. CHITTY. There is no allegation on the part of the 
 defendant making out his alibi. He has not averred that he 
 had not been at the pit, nor could have been there. There 
 is no averment what became of the appellee between half- 
 past five and seven ; he might have gone back and ac- 
 complished his object in that interval. I do not put this
 
 .THE APPEAL OF MURDER. 61 
 
 proposition as one in which I have any confidence; but 
 merely to show that even if the appellee was entitled to 
 plead an alibi, he has pleaded it insufficiently. All I have to 
 consider is whether there is enough of presumptive evidence to 
 induce the court to avoid this mode of trial ; and I submit that 
 on these grounds the replication to the counter-plea was insuffi- 
 cient, and that the defendant ought not to be admitted to 
 wage battel with the appellant, but must submit to the con- 
 stitutional trial of the charge by a jury of his country. 
 
 On Mr. CHITTY'S sitting down, Mr. TINDAL rose for the 
 purpose of addressing the court in support of the replication ; 
 but the court, after remaining for some minutes in consulta- 
 tion, intimated, on account of the lateness of the hour, that it 
 would be better the defendant's counsel should be heard to- 
 morrow, to which day the court was adjourned accordingly. 
 
 On the next day, the 8th of February, Mr. TINDAL com- 
 menced his arguments on behalf of the appellee, Thornton, 
 who was again brought up in custody. They are well worthy 
 of perusal, and it is to be regretted that space will not allow 
 of more than a few extracts being given. 
 
 " On the part of the defendant in this appeal, it is my duty 
 to contend that on t^e face of this record, and upon what 
 appears in the case, you are bound to give the judgment 
 that battel must be waged between these parties, unless I 
 can, in the course of the argument, convince you, as I feel I 
 shall be able to do, that the proper judgment will be the 
 final judgment that the appellor shall take nothing by his 
 writ, but that the appellee shall go without day. It is not 
 my intention to devote so long a period to the argument as 
 was yesterday devoted to it by my learned friend Mr. CHITTY ; 
 for I apprehend, as to many of the authorities cited by him, 
 and also as to many parts of his argument, it will not be 
 necessary for me to make any reply ; for I apprehend you 
 will not declare the law of this country as it is laid down in 
 foreign writers, or in the writings of speculative men, but 
 that you will rather decide according to the older authorities 
 of this country; and therefore if I can show you by the 
 Year-book, and authorities, the proper way is the wager of
 
 62 TRIAL OF ABRAHAM THORNTON. 
 
 battel, then I apprehend I shall receive the judgment of 
 your lordships in favour of that mode, whatever impression 
 that judgment may make on the opinion of other men." 
 
 " The course I shall adopt will be this : First, I shall show 
 you that the trial by battel is the undoubted right of the 
 defendant in an appeal, and not the right of the appellant. 
 I shall then show you that the case contained in the counter- 
 plea does not bring the case within the exceptions to the 
 wager of battel which the law allows ; and I shall contend 
 that the counter-plea is too vague and uncertain to call upon 
 us for an answer, and therefore I might stop here by saying 
 that if the counter-plea is bad, the appellant has no case in 
 court. But, thirdly, if the counter-plea is admissible, then 
 I shall contend that the replication contains a complete 
 answer to it ; and I shall, lastly, conclude by calling your 
 attention to the reason of the thing, and shall state authori- 
 ties to show you the proper judgment is that the defendant 
 shall go without day." 
 
 " As to the first point, that the right to wage battel is a 
 right given to the defendant, and not to the appellant, in an 
 appeal, I shall call your attention no further to the intro- 
 duction of this mode of trial into this country than by 
 stating that it was brought into this country by the Normans. 
 For if you look at the Collection of the Saxon Laws, by 
 Barnard, or as they are referred to by Selden, you will find 
 that although in the 4th volume Selden's remarks occupy a 
 considerable portion of the work, there is no mention what- 
 ever of the trial by battel. The Saxon laws themselves are 
 equally silent upon the subject. The Saxon laws being silent 
 with respect to the trial by battel, you will then turn to the 
 laws of William the Conqueror, where you will find that the 
 trial by battel is of Norman origin. It appearing that before 
 the Norman conquest this mode of trial was not known, and 
 that at the conquest it was introduced by the Normans, I 
 conclude it is a practice originating in the introduction of 
 the Norman law." 
 
 " Then my next point is that it is a right given to the 
 defendant only. In the grand Coustumier of Normandy there 
 is a title ' De suite de Murder.' It is there stated that suit 
 of murder ought to be made in this manner : R. complains
 
 THE APPEAL OF MURDER. 63 
 
 of T. that he hath murdered his father feloniously, in the 
 peace of God and the duke, which he is ready to make 
 appear at some hour of the day, f un hceur de jour ;' for 
 your lordships know that if the battel lasted till the evening 
 star appeared, there was an end of it; and therefore the 
 appellant was to prove the guilt of the defendant in some 
 hour of the day. The passage goes on to say, ' If T. denies 
 this, and offers his pledge, then he ought first to take the 
 pledge of the defendant;' and then there is this note, 
 ' It appears the defendant ought to throw first his gage, and 
 then the appellor;' so that it is clearly the right of the 
 defendant. The next authority is that of Bracton, who of 
 all the early writers is the most full ; he has embodied into 
 his work all the writers down to Staundforde. He clearly 
 proves that the wager of battel is the defendant's right. In 
 chap. 18, fol. 137, he is talking of persons being brought 
 into court, and expressly states that the defendant ( habebit 
 electionem utrum super patria se ponebit, vel se defendendit 
 per corpus suum, <?.,' so that you see the right of this battel 
 is the right of the defendant, and not the right of the plain- 
 tiff. Fleta, in his 2nd book, c. 41, follows nearly in the same 
 words, so that it is only necessary to call your attention to 
 them. Fleta brings his authorities down to Edward I. He 
 must have written sometime about or immediately after the 
 Statute of Westminster the 2nd, for he refers to it. The last 
 author I shall state is Lord Coke, who, in the Second Inst. 247, 
 says in a case of life or appeal of felony, the defendant may 
 choose either to put himself upon the country, or to try 
 it body to body, that is, by combat between him and the 
 appellant. So that you perceive there is a regular chain of 
 authorities from the earliest writers of the law down to the 
 latest text book, proving that the right of trial by battel is 
 the defendant's right. Then if it is his right, it is the duty 
 of the appellant to cite him to show that he brings the case 
 within some of the exceptions; and my second point is 
 that the counter-plea does not bring the case within the 
 exceptions." 
 
 Mr. TINDAL then, after citing several cases to show that 
 the only grounds on which an appellee could be ousted of 
 his wager of battel were his being taken in the mainour, that
 
 04 TRIAL OF ABRAHAM THORXTOX. 
 
 is with stolen articles upon him or breaking prison, or if the 
 appellant were maimed, or an infant, .or above sixty years of 
 age, proceeded next to discuss the sufficiency of the counter- 
 plea of the appellant. He objected that it was so framed 
 that no issue could be taken on it. It commenced by stating 
 " that from various circumstances there were violent and 
 strong presumptions of the prisoner's guilt." Now presump- 
 tions were nothing, Mr. TIXDAL said, but inferences which 
 were to be drawn from proofs preceding them. What sort 
 of issue could be submitted to the consideration of a jury 
 merely upon the ground of presumptions with which the 
 facts themselves were mixed up ? There was nothing stated 
 in the counter-plea as a fact, except such things as appeared 
 merely to others to be so. It stated, for example, " that it 
 manifestly appeared to divers persons that certain marks 
 upon the arms of Mary Ashford were recent, and occasioned 
 by the pressure of a person's hand." 
 
 Lord ELLEXBOROUGH. The names are not even mentioned. 
 It is only said " that it appeared, and was manifest to many 
 persons." How could an issue be taken on such allegations? 
 
 Mr. TINDAL then proceeded to read that part in which it 
 was stated " that the deceased came to her death by drown- 
 ing, and that forcibly." He contended that no facts were 
 stated. The different allegations were merely mentioned as 
 things which appeared manifest to credible witnesses. It 
 was stated that the print of a footstep was seen which 
 " appeared" to be that of the defendant, and he objected to 
 it, as stating only what appeared. 
 
 Lord ELLEXBOROUGH. That is sufficient. The footstep 
 could be only matter of appearance. 
 
 Mr. TIXDAL contended that even admitting all the defec- 
 tive part of the allegations in the counter-plea to be struck 
 out, still there did not remain sufficient prima facie evidence 
 against the defendant. 
 
 "Then as to the third point, namely, that if the counter-plea 
 was a good one, the replication was also a sufficient answer to it. 
 The objection taken was that it pleaded upon uncertainty. 
 The first objection taken to the alibi was the statement that 
 the defendant left the house of Mary Butler at four o'clock 
 in the morning. The next was that a former acquittal was
 
 THE APPEAL OF MURDER. 65 
 
 no ground upon which to presume the innocence of the 
 defendant. The third and principal objection was, that 
 under the circumstances of the case it was not right to set 
 up a counter-presumption at all. This was arguing that the 
 plaintiff had a right to counter-plead a statement from which 
 guilt might be inferred, while the defendant was to be 
 deprived of the same opportunity of alleging any reasons 
 upon which to establish his innocence. It was said in the 
 replication that they left the house of Mary Butler at a 
 quarter past four; in the counter-plea four was the hour 
 mentioned. They could not know the hour at which the 
 parties left the house. Taking it to be a quarter past four, 
 what was the fair import but this, that the time was iincer- 
 tain as to a few minutes ? Supposing it to be fifteen minutes, 
 more or less, the only inference could be that a small space 
 remained undetermined on one side and the other. The 
 next objection was, that they had no right to plead the 
 former acquittal. The ground upon which the objection 
 went was the statute of Henry VII. ; nothing, however, was 
 intended by that statute, but merely to save parties their 
 right of suing an appeal. The statute was meant to redress a 
 grievance which existed at the time by reserving the right of 
 the appellant. Lord Bacon, speaking of the statute, said it 
 was ordained for this purpose, that suit by indictment be 
 taken within a year and a day, not prejudicing the parties 
 suing. Acquittal, in the present case, was not the only 
 ground taken. There was abundance of other proof to show 
 the impossibility of the defendant's having committed the 
 crime charged against him." 
 
 " It appeared from the replication that about a quarter past 
 four Mary Ashford left the house of Mary Butler. She 
 had then a mile and a half to go to the pit ; and he 
 thought he should not be allowing too much time for a 
 woman to go such a distance in saying twenty minutes. 
 Then she reached the pit at twenty-five minutes before five. 
 He would now ask, according to the replication, where was 
 Thornton at that time ? The answer would be, taking the 
 latest moment, that at twenty-five minutes before five he 
 came up with another person a mile and a half from the pit. 
 When Mary Ashford arrived at the pit, the circumstances of 
 
 p
 
 66 TRIAL OP ABRAHAM THORNTON. 
 
 rape and murder, according to the counter-plea, were yet 
 to happen; events which, according to the experience of 
 courts of justice, must have occupied at the smallest compu- 
 tation a quarter of an hour. This brought them to ten 
 minutes before five, at which precise moment they had 
 Thornton meeting another person, namely John Haydon, a 
 mile further from Holden's farm, and two miles and a half 
 from the pit. From thence he was traced still departing 
 from the pit until he reached Castle Bromwich ; so that, in 
 point of fact, it was utterly impossible for Thornton to have 
 committed the facts imputed to him, if the statement in the 
 replication were correct. There were some other points urged 
 by his learned friend (Mr. CHITTY) which were hardly worth 
 notice : one of these was as to what had become of the 
 appellee after five o'clock. Of this no doubt ever existed, 
 and therefore it was not necessary to meet it." 
 
 Mr. Justice BAYLEY. Mary Ashford was not seen near 
 the pit after half-past four, and you trace Thornton till 
 twenty minutes after five. 
 
 Mr. TINDAL then concluded his argument as follows : 
 " Now as to the last part of my argument the object is to show 
 that under all the circumstances of the case, the judges have 
 not alone the power of setting aside the counter-plea, and 
 allowing the appellee his wager of battel, but also the power 
 of ordering that the appellor should take nothing by his writ, 
 and that the appellee should go free without day. In a case 
 brought before Lord Chief Justice MONTAGUE it was decided 
 that in appeal of a woman for the murder of her father, 
 although the defendant offered no objection, the court over- 
 ruled the appeal on the ground that the wife could only 
 appeal the death of her husband. From this I infer that 
 judgment of the court, where a plea failed, was not always 
 the one way. In fact, it seems to be inconsistent with the 
 exercise of reason and common sense, where it appears evi- 
 dent to the judge that the appellee cannot by possibility be 
 guilty of the crime of which he is appealed, that he should 
 give judgment for battel. Suppose a woman appeals the 
 death of her husband ; that the appellee demands his wager 
 of battel; that the appellor counter-pleads, and that in 
 reply the appellee produces the husband supposed to have
 
 THE APPEAL OF MURDER. 67 
 
 been murdered, alive, in court, would the judges, I ask, in 
 such a case have no alternative but be obliged to award 
 battel; and thereby risk the shedding of innocent men's 
 blood ? This is not a fancied case, for such a one actually 
 did take place, and is to be found in the Year-book of the 
 8th Hen. IV., and then the woman was sent to prison until 
 she paid a fine to the king, and her husband was allowed to 
 go free. There is another case in point in Bracton, where 
 the very defence urged in the present replication was made 
 I mean that of alibi. The judge there dismissed the appeal 
 and discharged the appellee, upon the ground that it was 
 impossible for him to have committed the crime imputed to 
 him from the remoteness of his situation at the time when it 
 was alleged the offence had taken place. Finally, upon the 
 general question of the barbarous practice of wager of battel, 
 and of its unfitness to be pursued at the present enlightened 
 era, I am quite convinced, if your lordships see there is 
 sufficient ground shown for giving the appellee his battel in 
 this case, that you will not compromise your duty, but admi- 
 nister the law as it existed. I trust, however, that I have 
 shown enough to your lordships to induce you, on giving 
 judgment, to come to the conclusion that the appeal ought to 
 be discharged, and the appellee allowed to go free without 
 day." 
 
 At the conclusion of the able arguments of Mr. TINDAL, 
 Mr. CHITTY intimated that it would be impossible for him to 
 get through his reply in the course of the day, and the court 
 thereupon again adjourned the further hearing until the 16th 
 of April. An application was made on behalf of Thornton 
 for bail, but as it appeared no sureties were in attendance 
 the court made no order, and Thornton was removed in 
 custody. 
 
 On the 16th April the further hearing of the case was 
 resumed. 
 
 The prisoner was brought into court shortly before nine 
 o'clock by the private passage, and was placed at the bar. 
 His confidence seemed unabated ; he looked extremely well, 
 and his appearance generally was that of a man whose mind 
 
 F 2
 
 68 TRIAL OF ABRAHAM THORNTON. 
 
 was perfectly at ease. Soon after he had taken his seat, an 
 amusing incident occurred. Two women found admission to 
 the court through the door destined for the use of the bar, 
 and placed themselves by Thornton. They were about to 
 enter into conversation with him, unconscious of his being a 
 prisoner, when the usher asked Thornton if they were friends 
 of his. Thornton looked at them, and answered ' ' No, they 
 are no friends of mine." One of the women immediately 
 rose and said, " Please sir, I am William Ashford's aunt." 
 They were accommodated with a situation in another part of 
 the court. The anxiety of the public to be present at the 
 proceeding was manifested as heretofore by the presence of 
 a crowd far greater than could gain admission to the court. 
 
 As soon as the court was formed, Lord ELLENBOROUGH 
 called upon Mr. CHITTY, who proceeded with his argument 
 in reply. He admitted that wager of battel was the choice of 
 the defendant, and gave up that point in favour of Thornton, 
 but contended that violent presumption of guilt was sufficient 
 to take it away. His arguments in support of this pro- 
 position were very similar to those set up on behalf of the 
 appellant in the first instance, and there is no necessity to 
 repeat them. On the question of the sufficiency of the 
 counter-plea and how far it had been met by the replication, 
 Mr. CHITTY entered into some very learned and technical 
 arguments, and then addressed himself to the alibi, and how 
 far that defence was consistent with wager of battel. On 
 this point his remarks are well worthy of consideration. 
 
 " I contend that the fact of the supposed alibi can only be 
 brought forward as a defence on the trial ; the counter-plea 
 establishes a primd facie case sufficient to go to a jury, and 
 therefore sufficient to preclude trial by battel. The very 
 allegation in the replication that the defendant is prepared 
 to prove his alibi by competent witnesses establishes that 
 this is not a case in which a trial by battel ought to be 
 admitted, for I have already endeavoured to show that that 
 is a mode of terminating the prosecution not to be resorted 
 to unless there is an absence of evidence. If the defendant 
 be prepared to prove his alibi, he may trust his case to a 
 jury, and ought not to be allowed to resort to a mode of 
 trial which is a profane appeal to the Almighty, upon the
 
 THE APPEAL OF MURDER. 69 
 
 supposition that He will interfere. The replication is also 
 substantially defective, for it does not sufficiently aver an 
 alibi. There is no averment of the precise time; there is no 
 averment that the defendant was -not present at the time of 
 the death, or that he could not have been there ; and it is a 
 remarkable fact that although the village of Erdington, 
 where Thornton alleged he left Mary Ashford, as well as the 
 country between that place and John Holden's, is populous, 
 and the working people must have been about at that time in 
 the morning, there is no averment that he was seen by any 
 person in that village, or between it and the neighbourhood 
 of John Holden's, though immediately he arrived there, he 
 alleges that he was seen by several persons. There is no 
 averment in the replication upon which issue could be taken, 
 and if found by a jury would decide upon a strict alibi, for 
 all the allegations are, 'that about such a time he was at 
 such a place, Sfc' The replication ought to have averred in 
 express terms that Thornton was not at the pit, or present at 
 the time of the murder, and then have stated the facts and 
 evidence in order to corroborate such allegation. We might 
 then have taken issue upon the express averment of the 
 alibi ; but it was impossible to take issue upon loose allega- 
 tions, uncertain in point of time, and which, if found by a 
 jury to exist, would still have left it uncertain whether or 
 not the defendant was present. What is a defence founded 
 on an alibi ? It is an allegation : I am not guilty, because T 
 was not at the place at the time the offence was committed, but 
 was at another place, and therefore could not be guilty. Any 
 plea, therefore, of an alibi should contain these allegations." 
 
 Mr. CHITTY then proceeded to remark upon the position 
 taken by Mr. TINDAL, that supposing the counter-plea 
 defective or the replication sufficient, the" appellant should 
 go without day, and be wholly exempt from any mode 
 of trial, even from trial by battel for which he had prayed, 
 and then to discuss the facts of the case as shown on 
 the record. On this point his arguments were not received 
 with much favour by the court, and he was frequently 
 interrupted by the learned judges, who took exception to 
 several points. The opinion of the bench on the question of 
 the guilt or innocence of Thornton was very evident from
 
 70 TRIAL OF ABRAHAM THORNTON. 
 
 the remarks that fell from them. They observed that there 
 was nothing to show that the defendant was with Mary 
 Ashford after three o'clock, nor was there anything stated 
 from whence it might not be inferred that his connection 
 could not have taken place before that period : that it was 
 not stated that marks of a human figure on the ground the 
 drops of blood the footsteps near the pit, could not have 
 been produced antecedent to Mary Ashford's calling at 
 Mary Butler's, or before the dew had fallen ; and that there 
 were modes, too, by which Mary Ashford might have come to 
 her death consistent with the innocence of the defendant j she 
 might have destroyed herself, or might have fallen in from 
 weakness. Upon the whole, the opinion of the bench seemed 
 unanimous that there was sufficient doubt upon the case, if 
 not altogether to free the defendant from suspicion, yet at 
 least to prevent the court from coming to that conclusion as 
 to his guilt which should go the length of depriving him of 
 his wager of battel. Mr. CHITTY contended generally that 
 there was no foundation whatever for the supposition that 
 Mary Ashford had deprived herself of life, and that all the 
 circumstances collectively went clearly to establish the guilt 
 of the prisoner; but on this point the court was clearly 
 against him, and he therefore retired from a contest which 
 the observations of the learned judges clearly showed to 
 have been hopeless. 
 
 The court then, having remained in consultation for about 
 a quarter of an hour, delivered their opinions seriatim. 
 
 Lord ELLENBOROITGH. A multitude of cases and autho- 
 rities have been cited on both sides, into which the court 
 have most anxiously looked, in order to ascertain what is the 
 mode of trial by law in cases of appeal; and they are of 
 opinion that unless the present case falls within some of the 
 exceptions therein mentioned, with that degree of certainty 
 in point of fact which excludes all possibility of doubt, it is 
 impossible to refuse this defendant his wager of battel. It is 
 not necessary for the court now to enter into a minute 
 examination of the circumstances of this case, but it is 
 sufficient to say that such degree of certainty as is analogous 
 to the case put in Bracton does not exist in the present case. 
 The rule there laid down applicable to such case of excep-
 
 THE APPEAL OF MURDER. 71 
 
 tion, " That an appellee may defend himself by his body on 
 being appealed, unless some violent presumption make against 
 him, which does not admit of proof to the contrary," cannot 
 take place on the present occasion, and therefore the usual 
 constitutional trial (liable to all the objections which apply 
 to cases of appeal and to the trial of battel) must, according 
 to the course of law as it now stands, take place, unless (the 
 plaintiff having declined this mode of trial by his counter- 
 plea) the defendant is entitled to go altogether without day. 
 That is a point, however, upon which we do not pronounce 
 any judgment, leaving that matter to be argued hereafter. 
 The court, upon that argument, will consider that point, but 
 at present the court feel themselves ready, upon considera- 
 tion, to pronounce that this is a case in which, under the 
 law as it now stands, the trial by battel ought to take 
 place. 
 
 Mr. Justice BAYLEY and Mr. Justice ABBOTT having 
 concurred, 
 
 Mr. Justice HOLROYD, who was also of the same opinion 
 with the rest of the court, then added a few words touching 
 the really important questions of the guilt or innocence of 
 Thornton. He said : " Upon the counter-plea this appears, 
 ' That the prisoner and Mary Ashford had been together 
 during the course of the night, and that several of the circum- 
 stances which are stated to have taken place, from which a 
 suspicion arose against the prisoner, might have occurred 
 before they separated.' It appears by the counter-plea that 
 in the course of that night they separated, because the 
 counter-plea states the fact of her going to Mary Butler's ; 
 but it goes on to state also that she returned alone. It 
 appears therefore that though they were together they had 
 separated, and there is no allegation that they ever met 
 again. There is no circumstance stated in the counter-plea 
 inconsistent with the fact of the deceased having come to 
 her death by accident either by her being at the brink of 
 the pit, and having slipped in accidentally, or from dizziness 
 occasioned by loss of blood, having fallen in. Now that is 
 quite consistent with everything stated in the counter-plea 
 and the replication. I will not go out of these to anything 
 that might have appeared upon the trial ; but it is consistent
 
 TRIAL OF ABRAHAM THORNTON. 
 
 with the counter-plea and the replication that all the cir- 
 cumstances stated from which the suspicion arose against the 
 prisoner might have taken place before she went to Mary 
 Butler's and before they were separated. That there was a 
 separation was proved in evidence, and all the several 
 circumstances alleged against the prisoner might have taken 
 place before the separation. Why, then, if that were so, there 
 was no motive or inducement to commit the murder. Besides 
 this there is another circumstance to be taken into consi- 
 deration, namely, the proof by various witnesses of an alibi, 
 from which presumption may be drawn inconsistent with the 
 supposed fact that he was the person who committed the 
 murder, if any murder was committed/ 3 
 
 Lord ELLENBOROUGH added. The general law of the laud 
 is, that there shall be a trial by battel, in case of appeal, 
 unless the party brings himself within some of the exceptions. 
 However noxious I am myself to the trial by battel, it is the 
 mode of trial which we in our judicial character are bound 
 to award. We are delivering the law as it is, and not as we 
 wish it to be ; and we must pronounce our j udgment that 
 the battel shall take place, unless the party reserves for our 
 consideration, whether, under the circumstances of the case, 
 the defendant is entitled to go without day, which is a point 
 for further consideration. At present we pronounce, " That 
 there be a trial by battel, unless the appellant show reason 
 why the defendant should not depart without day." 
 
 Mr. GURNEY then craved time to consider of the propriety 
 of applying for the judgment of the court upon this point ; 
 and the court adjourned until the 20th April, on which 
 day the defendant was brought up to hear the final judgment 
 on this appeal. 
 
 A report prevailed, and obtained credit to a certain extent, 
 that the appellant had determined to accept the defendant's 
 challenge, and that the court would be reduced to the 
 necessity of awarding the combat ; and curiosity was at the 
 highest pitch to learn the manner of battel, and the time 
 and spot where it would take place. All speculation, however, 
 on the subject was put an end to immediately on the sitting 
 of the court, when the Chief Justice called on the appellant's 
 leading counsel, 
 
 Mr. GURNEY, who said. Your lordships were pleased to
 
 THE APPEAL OF MURDER. 73 
 
 give us till to-day to consider whether we would pray your 
 lordships' judgment on this appeal, or whether the defendant 
 should be allowed to go free and without day. Having duly 
 considered your lordships' judgment, that the defendant is 
 entitled to his plea of wager of battel, on the part of the 
 appellant I have nothing further to pray. 
 
 Mr. READER. Then, my lord, I submit the appellant 
 must be called ; and that he must either accept the wager of 
 battel, or consent that the defendant be permitted to go free 
 without day. 
 
 Lord ELLENBOROUGH. Very well, let him be called. 
 
 Mr. Barlow, clerk of the Crown-office, was proceeding to 
 call William Ashford to appear in court, or his writ of appeal 
 would be lost, when 
 
 Mr. GURNET said the appellant did appear in court, 
 though he did not pray anything, but left his case with their 
 lordships, who had to consider whether any and what effect 
 would attach to him for not praying judgment in conse- 
 quence of any future proceeding on the part of the defendant. 
 The appellant had no objection to offer against the defendant's 
 being permitted to go free. 
 
 Mr. HEADER said, on the part of his client, that there 
 was no intention entertained by him of praying anything 
 against the appellant. 
 
 Mr. Justice BAYLEY. You, Mr. Gurney, will, I suppose, 
 pray that judgment be stayed. 
 
 Mr. GURNEY. Yes, my lord. 
 
 Mr. READER. I certainly shall not pray anything else. 
 
 Mr. RICHARDSON. My lord, it cannot be considered that 
 we abandon the appeal; the appellant is in court though 
 he does not pray anything. 
 
 . Mr. READER. Mr. Gurney, do you consent, on the part 
 of the appellant, that the defendant be discharged, and 
 allowed to go free without day. 
 
 Mr. GURNEY. I do, on the part of the appellant, give 
 such consent. 
 
 Mr. READER. Then I have only to pray the court that 
 he be so discharged. 
 
 Mr. Justice BAYLEY. I conceive the course now to be 
 pursued is this : The appellant prays nothing. The defendant, 
 therefore, as far as the appellant is concerned, goes free ;
 
 74 TRIAL OF ABRAHAM THORNTON. 
 
 but he must now be arraigned at the suit of the Crown ; 
 so that you will plead the trial and acquittal which has 
 already taken place, but of which, upon the present pro- 
 ceedings the Crown must be supposed ignorant, although it 
 is a fact well known to the parties. 
 
 Lord ELLENBOROUGH. This is a proceeding between 
 individuals of which the court knows nothing. He must 
 be arraigned at the suit of the Crown, to which he may 
 plead the record of his former acquittal. The attorney 
 general must be present, and will perhaps give his assent to 
 this plea. 
 
 Mr. READER said he would send for the attorney general, 
 and would also produce the record of acquittal if necessary. 
 
 In the course of a few minutes the attorney general came 
 into court. 
 
 The prisoner was then arraigned for the murder of Mary 
 Ashford, and pleaded ' ' Not Guilty." 
 
 Mr. READER, in reply, put in a copy of the record of 
 the trial and acquittal at Warwick on the 8th of August 
 last. 
 
 The attorney general having admitted the fact of the 
 defendant having been already tried and acquitted on this 
 charge, the judgment of the court, " that the defendant be 
 discharged from this appeal, and that he be allowed to go forth 
 without day," was then delivered by Lord ELLEXBOROTJGH, 
 and the defendant was discharged. 
 
 In the following session an Act of parliament was passed 
 (59 Geo. 3, c. 46) entirely abolishing both appeals of murder 
 and wager of battel. Thornton left this country shortly after 
 his discharge and went to New York, where he is reported to 
 be still living.
 
 THE TRIAL 
 
 OF 
 
 JOSIAH PHILLIPS 
 
 FOR A LIBEL ON H. B. H. THE DUKE OP CUMBERLAND, 
 BEFOEE LORD CHIEF JUSTICE DENUAN, 
 
 IN THE KING'S BENCH, 
 On June 25th, 1833. 
 
 Counsel for the Duke of Cumberland: Sir Charles Wetherell, 
 Mr. Pollock, Mr. Follett, and Mr. Jelf. 
 
 For Mr. Phillips : Mr. D. WakefieU. 
 
 INTRODUCTION. 
 
 THE trial of Josiah Phillips for a libel on the Duke of Cum- 
 berland is inserted in this collection on account of the peculiar 
 interest that at the time attached, and in some measure still 
 attaches, to the circumstances connected with the death of 
 Sellis in 1810. It is scarcely possible to represent at the 
 present day the excitement that was caused on the morning 
 of the 31st May, 1810, by the announcement that the life of 
 His Royal Highness the Duke of Cumberland had been 
 attempted in the course of the previous night ; that the duke 
 had been most seriously and dangerously wounded ; and 
 that the assassin, finding himself foiled in his intention 
 of murdering the duke, had ultimately frustrated the ends 
 of justice by destroying himself. At first the report was 
 believed to be entirely without foundation ; but on further 
 inquiry being made at St. James's Palace, where the duke 
 occupied apartments, it was found that the rumour was 
 indeed true. In the course of the next day an inquest was
 
 76 TRIAL OF JOSIAH PHILLIPS. 
 
 impanneled on the body of Sellis, and the facts connected 
 with the unfortunate transaction were then clearly brought to 
 light. 
 
 From the evidence that was given at the inquest it appeared 
 that the duke, on the night of the 30th of May, returned 
 to his apartments in St. James's Palace about twelve o'clock. 
 After dismissing the page-in-waiting, Neale, the duke 
 retired to bed. After having been some time asleep he was 
 awakened about three in the morning by repeated blows on 
 the head. At first the duke imagined that the blows were 
 caused by a bat flying against him, but their being again 
 repeated with violence, showed that he was in reality in the 
 hands of an assassin. His Royal Highness immediately rose 
 and made for the door, defending himself all the time as well 
 as he was able with his arms and hands. Notwithstanding, 
 however, his endeavours to ward off the blows, he received 
 several wounds of a severe description on the head. Neale, 
 the page, was called to the duke's assistance, and the assassin, 
 who all throughout the attack had kept the most guarded 
 silence, escaped from the room through a door leading into 
 the yellow drawing-room, which had been locked on the 
 previous night, but was afterwards found open. 
 
 The duke's surgeons, Sir Everard Home, and Sir Henry 
 Halford, were then sent for, and the wounds examined and 
 dressed. Sir Everard afterwards published a statement of 
 what he observed on that occasion, which, owing to the sub- 
 sequent proceedings in this case, and to Sir Everard's dying 
 before he could give evidence, is of some importance. He 
 stated that he found " the duke lying on his bed still bleed- 
 ing, and his shirt deluged with blood, and the coloured 
 drapery above the pillow sprinkled with blood from a wounded 
 artery. This could not/' Sir Everard said, " have happened 
 unless the duke's head had been lying on the pillow at the 
 time. The wadded nightcap he wore, and the scalp and skull 
 also, were obliquely divided, so that the pulsations of the 
 arteries of the brain could be clearly seen." In all it appeared 
 that the number of wounds the duke had received was seven- 
 teen, some of them very severe, and most of them of such a 
 character as showed at once to the most superficial observer 
 that they could not be self-inflicted. It was evident there-
 
 TRIAL OF JOSIAH PHILLIPS. 77 
 
 fore that they had been inflicted by some assassin, and that the 
 assassin must have been some one well acquainted with the 
 duke's apartments, and also with the palace generally. The 
 outer gates were at once guarded to prevent any escape, and 
 a minute examination of the duke's bedroom, and the rooms 
 adjoining, immediately instituted. 
 
 On the floor of the bedroom, near the door by which the 
 assassin had escaped, was found a sabre recently sharpened, 
 which turned out on examination to be the duke's own 
 regimental sabre. In a closet in a small room adjoining the 
 bedroom was found the scabbard, a pair of slippers, a dark 
 lantern, and a bottle of water. The key of this closet was in 
 the inside, and it was evident that the assassin had concealed 
 himself in the closet the previous night, and had then locked 
 himself in. 
 
 Suspicion in the first instance almost immediately attached 
 itself to Sellis, one of the valets in the duke's service. The 
 alarm had scarcely been given before the duke's porter and 
 several other servants went in a body to Sellis's door. 
 The door was found locked ; and though they knocked 
 repeatedly and called Sellis by name, no answer was returned. 
 There were two ways of access to Sellis's room, one by the 
 gallery leading from the great staircase, and the other through 
 the dressing-room attached to a bedroom adjoining the 
 armoury. The servants had proceeded to Sellis's room in the 
 first instance by the ordinary way, which was along the 
 gallery, but finding they could not get in, it was decided to 
 try the other entrance through the dressing-room. Some 
 slight detour was necessary for this, which would not how- 
 ever occupy more than five minutes. On arriving at the door 
 leading into Sellis's room, and before knocking or opening it, 
 a strange gurgling sound was heard, and on an entrance 
 being effected Sellis was found lying on the bed, outside the 
 clothes, with his throat cut from ear to ear, and the blood 
 still frothing from his throat. His arms and hands were 
 stretched straight down by his side, and a bloody razor was 
 found lying on the floor. There was no appearance of any 
 struggle. The drawer where Sellis kept his razors was open, 
 with the key in it ; the razor-case itself was on the table, and 
 one razor, similar to the razor found on the floor, was wanting.
 
 78 TRIAL OF JOSIAH PHILLIPS. 
 
 About six or seven feet from the head of the bed was a chair, 
 across the back of which Sellis's coat was found spotted with 
 blood. It was not possible that these spots could have been 
 caused by the spurting of Sellis's own blood, because in the 
 intervening space between the bed and the chair there were no 
 marks of blood. If the blood had been sprinkled by a 
 wounded artery from Sellis's bed to the chair, some drops at 
 least must have fallen on the carpet. What, however, was 
 most conclusive as to this was that the bloody side of the 
 coat was inside, and the side outward next the bed had no 
 blood on it. It was therefore clearly impossible that the blood 
 on the coat could have been Sellis's own blood. The infer- 
 ence was that it proceeded from the duke when endeavouring 
 to ward off the blows. The duke's blood had in fact spurted 
 eight feet in height round the wall of his own room, sprinkling 
 a portrait of Pichgru with large drops of blood, and it was 
 most likely, and indeed almost certain, that drops of blood 
 must in the attack have fallen on the assassin as well. 
 
 On the previous evening Sellis, contrary to his usual cus- 
 tom when not on duty, did not sleep in his family apart- 
 ments in another part of the palace, alleging as a reason for 
 not doing so, that he was going with the duke next morning 
 to Windsor, which was false. He pretended instead to be 
 going to sleep in the room in which his body was afterwards 
 found, for at a quarter before ten o'clock the housekeeper, 
 who was in a room opposite, was asked by Sellis to bring him 
 some water. She had previously filled the jug with water, 
 but found on bringing the second supply that it was empty, 
 though there was no appearance of any having been used. 
 Sellis had in all probability poured it into the bottle which, 
 it will be remembered, was afterwards found in the duke's 
 closet, and which he had taken with him for the purpose of 
 refreshing himself in the event of feeling faint whilst shut 
 up for so long a time in a narrow closet. When the house- 
 keeper brought the water, Sellis drew back the curtains of 
 the bed, turned down the clothes, and wished her good night, 
 his intention being to leave her under the impression he was 
 going to bed. Instead of that, however, he was found by 
 another servant at 11 o'clock in the duke's bedroom, but 
 his presence there attracted no attention, as it was assumed
 
 TRIAL OF JOSIAH PHILLIPS. 79 
 
 he was on duty. He had in his hand a bundle of linen, in 
 which in all probability the dark lantern afterwards found 
 in the closet was concealed. 
 
 In the course of the investigations next day, it was ascer- 
 tained that the servants, during the later part of the evening, 
 were alarmed by a footstep overhead whilst sitting below in 
 the rooms under the duke's apartments, as of some one 
 walking in slippers. In the closet a pair of slippers were 
 found, and inside them was Sellis's name. The footsteps 
 would, therefore, be caused by Sellis on his way furtively 
 from his own room to the duke's. A small oil lamp usually 
 kept burning below was missed, and it appeared that the lock 
 of the closet where Sellis concealed himself and of the doors 
 leading to the duke's bedroom had been recently oiled. 
 No one in the palace knew of these locks having been oiled, 
 and the most reasonable explanation of the circumstance is 
 that Sellis himself oiled them. 
 
 It is scarcely necessary to allude, so conclusive are all the 
 above facts against Sellis, to any further evidence of his 
 guilt, but there is one other circumstance worth noting. The 
 assassin, whoever he was, fled from the duke's room by a 
 room known as the west yellow room, then along the ball- 
 room, then through the east yellow room, and then through 
 the armoury. The finger plates of all the doors which it 
 would be necessary for him to open on his way were marked 
 with blood. Now this course was the most direct road from 
 the duke's apartments to Sellis's own room, and on the right 
 hand of the door-post leading from the armoury into Sellis's 
 room itself there were marks as of a bloody sleeve having 
 rubbed against it. This mark no one but Sellis could possibly 
 have caused ; and it is obvious it could not have been his own 
 blood but must have been that of the duke which had 
 spurted on his sleeve during the attack. 
 
 One point only, a point under ordinary circumstances no 
 doubt of great moment, but in this instance quite capable of ex- 
 planation, was noted, tending to weaken the. chain of evidence 
 against Sellis. The razor with which Sellis's throat had 
 undoubtedly been cut was found on the floor on the left side 
 of the bed. It had evidently been used with the left hand. 
 Now Sellis was not what is generally known as a left-handed
 
 80 TRIAL OF JOSIAH PHILLIPS. 
 
 man, though found to be so at the inquest, but, what is far 
 more uncommon, he was ambidextrous, and could use both 
 right and left hand equally well. A very unfounded and 
 unjust suspicion was undoubtedly caused at the time by this 
 circumstance, but the testimony of Sir Everard Home, quite 
 irrespective of the other damnatory evidence against Sellis, 
 is quite sufficient to prove that Sellis's death was caused by 
 his own hand. And such was the view taken of it by the 
 inquest, when, after a long and careful investigation, the jury 
 retured a verdict of felo de se. In the course of the day 
 the body of Sellis was buried in the manner then customary 
 in cases of suicide, and as is generally supposed, in Scotland 
 Yard. 
 
 Such is briefly an outline of the facts as proved by the 
 depositions of the witnesses connected with the death of 
 Sellis. It is impossible to deny that comments were from 
 time to time made on the transaction that were not favour- 
 able to the principal persons concerned. On one occasion 
 the attorney general of the day thought it his duty to 
 file an ex-officio information against a paper called The Inde- 
 pendent Whiff. But the accusations then made, and the 
 inferences drawn, were as nothing compared to what was 
 published in the work out of which the proceedings in this 
 case arose. 
 
 In the month of March, 183.2, a book called The Authentic 
 Records of the Court of England for the last Seventy Years, 
 was published by the defendant, Josiah Phillips. It was a 
 small octavo volume of about 400 pages, now become 
 exceedingly scarce, and it contained undoubtedly the most 
 scandalous assertions against His Royal Highness the Duke 
 of Cumberland. To suffer such a work to be circulated was 
 of course impossible, and in the following month a motion 
 was made by Sir CHARLES WETHERELL on behalf of the 
 duke for a criminal information against the publisher. 
 
 Sir CHARLES, on applying for the rule, read from the 
 affidavits filed the portion of the work relied upon as con- 
 taining the libel. It certainly cries aloud, and spares not. 
 In the following extract some portions have been omitted : 
 
 11 The memorable year 1810 was ushered in under dis- 
 tressing and unsatisfactory circumstances. The royal family
 
 PLAN OF THE DUKE OF CUMBERLAND'S 
 APARTMENTS. 
 
 CLEVELAND ROW 
 
 JL 
 
 A; 
 
 b: 
 
 KITCHEN COURT 
 EXPLANATION OP THE ABOVE PLAN. 
 
 A. The Duke's Bed-room. B. The Alcove in which the Bed was 
 placed. C. Closet in which Sellis was supposed to have hidden himself 
 the previous evening, and where his Slippers, Lantern, &c., were after- 
 wards found. D. Dressing-room. E. West Yellow Room, leading to 
 E. E., the Ball-room beyond. F. East Yellow Room. G. Armoury. 
 H. Bed-room. I. Dressing-room. K. Sellis's Bed-room, having two 
 entrances, one from the Dressing-room, the other from the narrow 
 Corridor separating Sellis's Room from (L.) another bed-room, occupied 
 on the evening in question by the house steward. The straight line in 
 the corner of Sellis's room is where the bed was placed on which Sellis 
 was afterwards found with his head toward the Corridor, and the razor 
 on his left side where the cross + is placed. The dotted line from C. to B., 
 and from thence to K., is the route supposed to have been followed by 
 Sellis previous to and after his attack on the Duke. M. A Passage 
 leading into (F.) the East Yellow Room. N. Lobby communicating 
 with (E. E.) the Ball-room and the main Staircase. O. The Bed-room 
 occupied by Neale, one of the Duke's pages. P. P. P. Gallery leading 
 to other apartments in the Palace. It has not been thought necessary 
 to show the windows in the different rooms set out in the Plan, as 
 nothing turns upon them. In the Ball-room were six windows, 
 reaching nearly to the ceiling. The shutter of one of these windows 
 was found open on the morning after the attack, and it was assumed 
 Sellis had opened it on the previous evening, in order to give him light 
 on his way back to his own room. 
 
 (To face page 80.)
 
 TRIAL OF JOSIAH PHILLIPS. 81 
 
 were divided among themselves, and every branch seemed to 
 have a separate interest. Under these circumstances, it was 
 not a matter of surprise that truth was now and then elicited. 
 The King was at this time labouring under a severe attack 
 of mental aberration : the situation of the country, his 
 children, and his own peculiar sorrows, made impressions on 
 his mind of the most grievous description. 
 
 " Alternate gleams and clouds succeeded each other. In 
 May a new and indescribable sensation was excited by the 
 announcement of an attempt to murder His Royal Highness 
 the Duke of Cumberland. It was said to have been the 
 result of malice on the part of the duke's valet, named 
 Sellis ; but, as faithful historians, we give the particulars of 
 these authenticated facts. 
 
 " Early in the morning of June 1st an inquiry was made at 
 the Palace (St. James's) for the apprehension of certain 
 individuals then presumed to have escaped in consequence of 
 an attempt to commit a most dreadful and then unaccountable 
 murder. 
 
 " At an early hour after midnight the Duke of Cumberland 
 retired for the night to his bed-chamber, after his attendant 
 Neale had served the usual drink for the night, and had 
 retired. 
 
 " About half-past two o'clock Neale was awakened out of 
 his sleep by the shrill cries of some person in much agony. 
 He hastily arose and proceeded to his master's bedroom, on 
 entering which he saw the duke, in an apparent quiet 
 attitude, standing in the middle of the room. ' Neale,' said 
 the duke, 'send for Sir Henry Halford; I am severely 
 wounded.' His Royal Highness then laid down upon the 
 bed, and would not permit any of his wounds to be examined 
 until the arrival of Sir Henry Halford. The temper of the 
 duke was too well known to admit of any questions or 
 inquiries, and as soon as Sir Henry arrived every person 
 left the room. When Sir Henry had finished the examina- 
 tion of the royal patient, and prescribed suitable restoratives 
 for his immediate use, he retired, and the servant Neale was 
 ushered into the duke's presence. 
 
 ***** 
 
 " We presume that the following statement of the Cum-
 
 82 TRIAL OF JOSIAH PHILLIPS. 
 
 berland stratagem may give energy to the mind and activity 
 to the determinate resolution of our fellow-countrymen. 
 * * * * * 
 
 " On the morning of June the 1st an astounding commu- 
 nication "was made by the daily papers that His Royal 
 Highness had been surprised in the night, and that his life 
 had been attempted by one of his valets, namely, Sellis. 
 Many reports were circulated, and the general opinion was 
 that the duke was the murderer. Of course, the high Tory 
 party took no small pains to propagate the opposite senti- 
 ment ; but the former was most generally believed from the 
 analogy of attending circumstances. We shall give both 
 sides of the question, and leave the unbiassed reader to judge 
 for himself. The first account states that early after mid- 
 night of May 31st, an alarm was given by the duke to his 
 servants, by his screaming aloud, ' Murder ! y That a valet 
 named Neale was the first person who heard the duke's cry, 
 and ran to his assistance : he found His Royal Highness 
 bleeding from wounds recently inflicted, and saying some 
 person had attempted to murder him ! Surgical assistance 
 was immediately rendered, the wounds dressed, and the royal 
 patient pronounced out of danger. The several apartments 
 were searched, and in a room appropriated to the use of 
 Sellis, a most awful spectacle presented itself. The body of 
 this unfortunate man was lying on the bed, his throat cut, 
 and life quite extinct. The report went on further to state 
 that it was believed Sellis had intended to murder his master, 
 and then to rob ; but finding himself detected by the duke 
 being aroused before he had finished his deadly purpose, he 
 hastily retired to his own room, where he committed the 
 rash act of suicide, to prevent detection, and consequent 
 punishment. 
 
 " Afterwards the daily accounts spoke of the dreadfully 
 wounded state of the duke, and every expression was used to 
 convey an idea of the murderous intention of the deceased 
 valet, and the improbability of the duke being any blamable 
 party in the transaction. The selection of the jury, and the 
 chosen evidence, produced considerable disgust in many per- 
 sons who were acquainted with the more private life and 
 habits of the duke.
 
 TRIAL OF JOSIAH PHILLIPS. 83 
 
 " A very considerable time after this tragical event, Sir 
 Everard Home published the following declaration relative 
 to it : 
 
 " ' Much pains having been taken to involve in mystery 
 the murder of Sellis, the late servant of His Royal Highness 
 the Duke of Cumberland, I feel it a private duty to record 
 the circumstances respecting it that came within my own 
 observation, which I could not do while the propagators of 
 such reports were before a public tribunal. 
 
 " ' I visited the Duke of Cumberland upon his being 
 wounded, and found my way from the great hall to his apart- 
 ment by the traces of blood which were left on the passages 
 and staircase, and found him on the bed still bleeding, his 
 shirt deluged with blood, and the coloured drapery above the 
 pillow sprinkled with blood from a wounded artery, and 
 which puts on an appearance that cannot be mistaken by 
 those who have seen it. This could not have happened had 
 not the head been lying on the pillow when it was wounded ; 
 the night ribbon, which was wadded, the cap, scalp, and 
 scull were obliquely divided, so that the pulsations of the 
 arteries of the brain were distinguished. While dressing 
 this and the other wounds, report was brought that Sellis 
 was wounded, if not murdered ; His Royal Highness desired 
 me to go to him, as I had declared His Royal Highness out 
 of immediate danger. A second report came that Sellis was 
 dead. I went to his apartment, found the body lying on its 
 side on the bed without coat or neckcloth, the throat 
 cut so effectually that he could not have survived above a 
 minute or two ; the length and direction of the wound were 
 such as left no doubt of its being given by his own hand. 
 Any struggle would have made it irregular : he had not even 
 changed his position ; his hands lay as they do in a person 
 who has fainted ; they had no marks of violence upon them ; 
 his coat hung upon a chair, out of the reach of blood from 
 the bed ; the sleeve, from the shoulder to the wrist, was 
 sprinkled with blood quite dry, evidently from a wounded 
 artery, and from such a kind of sprinkling the arm of the 
 assassin of the Duke of Cumberland could not escape. In 
 returning to the duke I found the doors of all the state apart- 
 ments had marks of bloody fingers on them. The Duke of 
 
 G 2
 
 84 TRIAL OF JOSIAH PHILLIPS. 
 
 Cumberland, after being wounded, could not have gone any- 
 where but to the outer doors and back again, since the traces 
 of blood were confined to the passages from the one to the 
 other. 
 
 " ' (Signed) EVERARD HOME/ 
 
 " We now present the other side of the picture, not drawn 
 at random, nor coloured too highly. 
 
 " Royalty has a profusion of attendants, it is at all times 
 able to command obedience to any express wish if in the 
 power of a vassal to obtain. 
 
 " An individual then in the household of the duke, who 
 most probably is now alive (information of which fact 
 might be ascertained by application to the King of Belgium) , 
 was inclined to give his deposition upon the subject in the 
 following terms, alleging as his reason the very severe pangs 
 of conscience he had endured through the secrecy he had 
 manifested upon this most serious affair. 
 
 DEPOSITION. 
 
 " ' I was in the duke's household in May, 1810 ; and on the 
 evening of the 31st I attended his Royal Highness to the 
 opera; this was the evening previously to Sellis's death. 
 That night it was my turn to undress his Royal Highness. 
 On our arriving at St. James's I found that Sellis had 
 retired for the night, as he had to prepare his master's 
 apparel, &c., and to accompany him on a journey early in 
 the morning. 
 
 " ' I slept that night in my usual room, but Neale, another 
 valet to the duke, slept in an apartment very slightly divided 
 from that occupied by His Royal Highness. A few days 
 previous to this date, I was commanded by my master to lay 
 a sword upon one of the sofas in his bed-chamber, and I did 
 so ; after undressing His Royal Highness I retired to bed. I 
 had not long been asleep when I was disturbed by Neale, 
 who told me to get up immediately, as my master, the duke, 
 was nearly murdered. I lost no time, and very soon entered 
 His Royal Highness's bedroom. His Royal Highness was 
 then standing in the middle of the chamber, apparently quite
 
 TRIAL OP JOSIAH PHILLIPS. 85 
 
 cool and composed ; his shirt was bloody, and he commanded 
 me to fetch Sir Henry Halford, saying, ' I am severely 
 wounded.' The sword, which a few days before I had laid 
 upon the sofa, was then lying on the floor, and was very 
 bloody. I went with all possible haste for Sir Henry, and 
 soon returned with him. I stood by when the wounds were 
 examined, none of which were of a serious nature or ap- 
 pearance ; that in his hand was the most considerable. 
 
 " ' During this period, which was nearly two hours, neither 
 Neale nor Sellis had been in the duke's room, which appeared 
 to me a very unaccountable circumstance. At length, when 
 all the bustle of dressing the wounds (which were very con- 
 siderable) was over, and the room arranged, the duke said, 
 ' Call Sellis/ I went to Sellis's door, and upon opening it 
 the most horrific scene presented itself. Sellis was lying 
 perfectly straight in the bed, the head raised up against the 
 head-board, and nearly severed from the body; his hands 
 were lying quite straight on each side of him; and upon 
 examination I saw him weltering in blood, it having covered 
 the under part of the body. He had on his shirt, waistcoat, 
 and stockings ; the inside of his hands was perfectly clean, 
 but on the outside were smears of blood. His watch was 
 hanging up over his head wound up ; his coat was carefully 
 folded inside out, and laid over the back of a chair. A razor 
 covered with blood was lying at a distance from his body, but 
 too far off to have been used by himself, or to have been 
 thrown there by him in such a mutilated condition, as it was 
 very apparent death must have been immediate after such 
 an act. 
 
 1 ' ' The wash-basin was in the stand, but was half full of 
 bloody water; upon examining Sellis's cravat it was found to 
 be cut ; the padding which he usually wore was covered with 
 silk, and quilted ; but what was most remarkable, both the 
 padding and the cravat were cut as if some person had made 
 an attempt to cut the throat with the cravat on, then finding 
 the woollen or cotton to impede the razor, took it off in order 
 the more readily to effect the purpose. 
 
 " ' During the time the duke's wounds were being dressed, 
 the deponent believes Neale was absent in obedience to 
 arrangement, and was employed in laying Sellis's body in
 
 86 TRIAL OF JOSIAII PHILLIPS. 
 
 the form in which it was discovered, as it was an utter impos- 
 sibility that a self-murderer could have so disposed of himself/ 
 
 " Deponent further observes that Lord Ellenhorough un- 
 dertook to manage this affair by arranging the proceedings 
 for the inquest, and also that every witness was previously 
 examined by him. Also that the first jury being unani- 
 mously dissatisfied with the evidence adduced, as they were 
 not permitted to see the body in an undressed state, posi- 
 tively refused to return a verdict ; in consequence of which 
 they were dismissed, and a second jury summoned and 
 impannelled, to whom severally a special messenger had been 
 sent requesting their attendance, and each one of whom was 
 directly or indirectly connected with the court or the govern- 
 ment. That on both inquests the deponent had been omitted, 
 and had not been called for to give his evidence, though it 
 must have been known from his personal attendance and 
 situation upon the occasion that he must necessarily have 
 been a most material witness. The second jury soon 
 returned a verdict against Sellis, and his body was imme- 
 diately put into a shell and conveyed away a certain distance 
 for interment. The duke was privately removed from 
 St. James's Palace to Carlton House, where His Royal High- 
 ness manifested an impatience of manner and a perturbed 
 state of mind evidently arising from a conscience ill at ease. 
 But in a short time he appeared to recover his usual spirits, 
 and being hurt but in a very trifling degree, he went out 
 daily in a sedan chair to Lord Ellenborough's and Sir William 
 Phipp's, although the daily journals were lamenting his very 
 bad state of health, and also enlarging with a considerable 
 expression of sorrow upon the magnitude of his wounds and 
 the fears entertained for his recovery. 
 
 "The further deposition of this attendant is of an im- 
 portant character, and claims particular consideration. He 
 says : 
 
 " ' I was applied to by some noblemen shortly after this 
 dreadful business, and very strongly did they solicit me to 
 make a full disclosure of all the improper transactions to 
 \vhich I might have been made a party upon this solemn 
 subject. I declined many times, but at length conceded, 
 under a binding engagement that I should not be left dcs-
 
 TRIAL OF JOSIAH PHILLIPS. 87 
 
 titute of comforts, or abridged of my liberty, and under 
 special engagements to preserve me from such results, I have 
 given my deposition. ' " 
 
 Sir Charles then read an affidavit of His Royal Highness, 
 denying the truth of the libel, and evidence of the identity 
 of the defendant with the publisher having been given, the 
 court granted a rule nisi, which in the following month was 
 made absolute. A criminal information was then filed, to 
 which the defendant pleaded not guilty, whereupon issue was 
 joined, and the case came on for trial in the King's Bench, 
 before Lord Chief Justice Denman and a special jury, on 
 the 25th of June, 1833. 
 
 Sir CHARLES WETHERELL, in opening the case to the jury ? 
 after a few preliminary observations, said: 
 
 " Before I proceed to state to you in detail the peculiar 
 facts and circumstances of the case, I shall take the liberty 
 of shortly explaining to you the nature of the proceeding 
 which leads to this trial. 
 
 " You are perhaps aware that an information filed by the 
 attorney general ex-officio is not supported by the affidavit 
 of any person who complains of a libel ; but it is a pro- 
 ceeding which emanates from and is founded alone upon the 
 authority of the attorney general, who has a right, by virtue 
 of his office, in cases where he may deem it necessary, to 
 exercise his authority, and in his own name to file a criminal 
 information in the Court of King's Bench. 
 
 " Gentlemen, the information which is now under your 
 consideration is not of that description, but it is what is 
 called a private information at the suit of the Duke of 
 Cumberland, who personally, and as a private individual, 
 applies to the Court of King's Bench. 
 
 " Perhaps it will not be deemed superfluous for me to remind 
 you for upon the present occasion it is in many views 
 material for you to bear in mind that in order to obtain an 
 information of this kind, the person who applies to the court 
 for the rule to grant it must himself make an affidavit or 
 procure the affidavit of other persons to be made, denying 
 the truth of the libellous matter which he makes the subject
 
 88 
 
 TRIAL OF JOSIAH PHILLIPS. 
 
 of complaint. The consequence of this invariable rule of 
 the court you -will have already anticipated, namely, that His 
 Royal Highness the Duke of Cumberland,, as a ground for 
 applying to the Court of King's Bench to grant this infor- 
 mation, made himself an affidavit, and others were also made, 
 denying in the strongest and most solemn manner the truth 
 of the atrocious charges against him contained in the libel in 
 question. 
 
 " You are aware also that in cases of libel there is another 
 mode in which a person whose character is attacked may 
 proceed, that is, by an indictment. But I need scarcely 
 remind you, that the individual who prosecutes by an indict- 
 ment is not bound to swear that the libellous matter is untrue. 
 There is still another mode of redress, by a civil action. But 
 for various and I think the most obvious reasons, it was 
 impossible in a case of such a peculiar description as this for 
 the illustrious duke to proceed in that manner (a) . 
 
 " Gentlemen, the time when the imputed transactions 
 occurred, in the year 1810, a valet or servant of His Royal 
 Highness, of the name of Sellis, was found stretched on his 
 bed lifeless, with his throat cut, in his room at some distance 
 from the royal duke's apartments in St. James's Palace, and 
 the royal duke was found in his own bedroom most severely 
 wounded. So extraordinary a transaction could not fail to 
 excite all that curiosity and attention, and to lead to all that 
 investigation which must naturally belong to it. And you 
 will find that, according to the ordinary course of law, the 
 coroner within whose jurisdiction the case fell summoned a 
 jury, and the finding of that jury was that Sellis had mur- 
 dered himself. This took place in 1810. 
 
 "Gentlemen, this transaction at the time became a subject 
 of a great deal of criticism, and of close investigation, inde- 
 pendently of the legal proceedings before the coroner. The 
 apartments in the palace were thrown open and examined by 
 a great many persons, and everything which the nature of 
 
 (a) Sir Charles might have cited an instance of a royal duke 
 bringing an action for libel against a private subject if he had chosen 
 that of His Royal Highness the Duke of York, who brought an action 
 against Titus Gates, and recovered 100,OoO/. damages.
 
 TRIAL QP JOSIAH PHILLIPS. 89 
 
 such a case required was submitted to the eye of public 
 curiosity and scrutiny. 
 
 " Gentlemen, you will probably concur with me in the 
 remark that few persons of high station in this country, if 
 they happen to belong to any particular party, fail to be 
 made the subject of some sort of attack more or less. I 
 might perhaps go the length of saying that there is no public 
 man so fortunate as to be entirely exempt from some kind 
 of personal attack ; and the mode of carrying it on is 
 usually to do the most mischief by getting into circulation 
 rumours and insinuations, and by so contriving vague 
 calumnies, that they cannot be met by positive and distinct 
 refutation. By contrivances of this kind suspicions of the 
 most foul nature may be thrown round the character of any 
 man, and in such a manner that he may be left entirely 
 defenceless, and even without any opportunity of vindication. 
 It has so happened in the case of the illustrious individual 
 in question. Ever since 1810, upon several occasions, rumours 
 have indirectly been given out, and mysteriously kept up, 
 that Sellis was murdered, and that His Royal Highness was 
 the guilty man. There has been much dexterity in all this. 
 Some obscure individual has been set to work, whenever it 
 served the purpose of the secret enemies of the duke, and 
 the calumny has been so managed that it has been equally 
 impossible to grapple with the expressions and insinuations 
 through which it has been circulated as with the secret 
 authors of them." 
 
 After referring to the publication of the work in question, 
 Sir Charles proceeded to comment upon it with considerable 
 force and effect. "The first page," he said, " exhibits an en- 
 graving of the royal arms with a motto ; not indeed the royal 
 motto, but that moral maxim which we must all allow to be 
 sacred, ' Magna est veritas.' From this we are to conclude 
 that in 1810 the truth of the transactions in which His 
 Highness is implicated was not investigated ; and that 
 between 1810 and 1832, the candid anonymous author has 
 been able to detect it. His diligence, accuracy, and investi- 
 gation have enabled him, in the year 1832, to lay before the 
 public a statement of facts which had been wilfully suppressed, 
 or mysteriously concealed, or improperly perverted, in the
 
 90 TRIAL OF JOSIAH PHILLIPS. 
 
 year 1810. He performs a meritorious service in the cause 
 of truth. His invincible attachment to it impels him to 
 drag into daylight, and to hold up to public scorn, an indivi- 
 dual, who, by his own stratagems, assisted by the frauds 
 and the wickedness of the tools and instruments employed 
 by him, contrived to elude punishment as an atrocious 
 delinquent. 
 
 " Gentlemen, I concur in the sacredness of the duty which 
 this lover of truth assumes. I applaud the conscientious 
 motive. I am ready to eulogize it in the strongest language, 
 because my sentiments upon that subject would be as elvated 
 as those of the anonymous author. I should go along with 
 him in saying, Let not ten or twenty or thirty years screen 
 a great delinquent, because he holds so high a rank in society, 
 but let justice be ultimately established. I say with this 
 author, be he who he may, the truth will prevail. And I 
 would assist in detecting it, though it has so long been 
 surreptitiously kept from the public. But the question you 
 have to try is, whether this author, who boasts so much of 
 divulging the truth, is really applying himself to the per- 
 formance of this honourable duty, or whether this publication 
 is produced from a very opposite motive, than which nothing 
 can be more base, namely, that of going back to a period of 
 more than twenty years since, for the purpose of making 
 statements which he cannot fail to know are fabrications and 
 falsehoods, in the hope that the distance of time may prevent 
 his own gross misrepresentations from being detected. 
 
 " Gentlemen, the publication in question, as you will soon 
 perceive, whoever is the author of it, is composed with no 
 small degree of art and attention in its arrangement, and 
 in the general form of it. It is obviously the production of 
 some person who has bestowed no small pains upon it; 
 and, gentlemen, I shall further say that the art with which 
 the libel itself is contrived is demonstrative of its bitter 
 malignity. The mode in which it is done is to pretend to 
 state the case, in which the royal duke is implicated, two 
 ways. First, to state the case as it did actually appear 
 before the jury, and then to state that there was an individual, 
 who, if he had been called upon as he ought to have been, 
 would have made a distinct and positive deposition, and
 
 TRIAL OF JOSIAH PHILLIPS. 91 
 
 that if he had appeared to make that deposition, and it 
 had been submitted to the jury, it would have established 
 a clear case which would have falsified the verdict, and 
 have shown that the royal duke was the murderer of Sellis, 
 instead of Sellis being a self-murderer." 
 
 Sir Charles then read at length the portion of the work 
 complained of as containing the libel, an extract from which 
 has been already given. With reference to the depositions 
 inserted in the book for the evident purpose of giving an 
 air of truth and plausibility to the narrative, and which 
 the defendant had stated in his affidavit, when showing cause 
 against the rule, was furnished to him as proceeding from 
 a person named Jew, then in the employment of the King of 
 Belgium, Sir Charles observed : " Now, gentlemen, through 
 the medium of that deposition, which the writer tells us this 
 individual, formerly in the service of the Duke of Cumberland, 
 would have made from this supposed statement you may 
 learn the criminal charge which is sought to be made against 
 the Duke of Cumberland. The statement I am about to read 
 is headed by the word ' Deposition/ This individual here 
 alluded to is a person of the name of Jew. There certainly 
 was a person of that name in the service of the duke at that 
 time. It is also correct that he was afterwards a servant in 
 the family of the King of Belgium. Now let us see what 
 his intended deposition is. (Here Sir Charles read the 
 deposition as given at page 84). Now I will undertake to 
 demonstrate to you that there is literally not one word of truth 
 in any part of this alleged deposition. Gentlemen, the 
 faithful historian may not know whether this person is alive ; 
 I rather conjecture he supposes him to be dead. But he is 
 mistaken ; I know him to be alive, not in Belgium, but now 
 walking in Westminster Hall, outside of the court ; and what 
 is more, I shall presently call him into court, and he will 
 tell you that in this long narrative, in this long supposed 
 deposition, there is not one word of truth from one end of it 
 to the other." 
 
 Lord Chief Justice, interposing. I do not think we can hear 
 him if he is called as a witness; the truth is not put in issue here. 
 
 Sir CHARLES WETHERELL. My Lord, I apprehend that is 
 a point which for the present I need not discuss.
 
 92 TRIAL OF JOSIAH PHILLIPS. 
 
 Mr. WAKEFIELD. There is no danger of his appearing, I 
 will undertake to say. I understand Sir Charles Wetherell 
 to allude to the witness whose deposition he has been reading. 
 I will undertake to state that he will not appear. 
 
 Sir CHARLES WETHERELL. I will undertake to say, then, 
 that he shall appear. 
 
 Lord Chief Justice. I will undertake to say that he can 
 hardly be a witness; I do not quite agree in your view of 
 the nature of the case. Supposing the jury shall be of 
 opinion he published this libel, the question of the truth has 
 been before the court already. 
 
 Sir CHARLES WETHERELL. I will not trouble your lordship 
 with an argument as to the points to which he may be 
 examined. There are several cases on this point. 
 
 Lord Chief Justice. I know what you allude to, as to the 
 introductory statement : the second count omits that intro- 
 ductory statement. I am of opinion the party has no right 
 to put this in issue on such an averment. 
 
 Mr. POLLOCK. Your lordship is aware there are some 
 facts which are very material, not only to be stated in the 
 information, but to be proved in evidence before a jury, 
 because a publication of this description will have one 
 character under one set of circumstances and a totally 
 different character under another; and it is desirable that 
 the fact, if of the larger kind, should be found by the jury, 
 that fact being put into question. 
 
 Lord Chief Justice. At present I only give my general 
 impression. 
 
 Mr. POLLOCK. I wish only to state why some of these 
 facts were put into question. 
 
 Sir CHARLES WETHERELL. I do not know who has 
 instructed my learned friend to say that the witness will not 
 appear. He has been subpoenaed ; I shall call him, and he 
 will be tendered by me to the court for examination. If it 
 shall be his lordship's ultimate judgment, when the point is 
 discussed, that he cannot be examined, his non-examination 
 will depend on the legal rule only. If his testimony 
 must be rejected, it will be by the direction of my Lord 
 Chief Justice, who will, by-and-by, correctly lay down the 
 rule of law for our guidance. At present I will only say
 
 TRIAL OF JOSIAH PHILLIPS. 93 
 
 that I am ready to go along with the faithful historian in 
 attending to the statement of his own pretended witness 
 the alleged maker of the deposition I have read. I will 
 make him my witness ; I will examine him to every tittle of 
 the matter contained in this spurious narrative, and will 
 submit it to the jury as far as the law will allow. My 
 learned friend, therefore, will permit me to say, that whoever 
 told him that Jew will not appear, has told him that which 
 is not accurate. Jew will appear Jew shall appear ; and it 
 is the Chief Justice alone whose authority shall prevent his 
 examination before you. To his lordship's authority we shall 
 bow. If he tells us that the rules of law will not permit me 
 to examine him on my side, I will then make a present of 
 him to the faithful historian, whose learned counsel may 
 make any use of him he can on his side. 
 
 Proof of the publication of the libel having been given, 
 General Sir Benjamin Stephenson was sworn. He said : " I 
 remember on the morning of the 31st of May hearing of the 
 attack that had been made on the Duke of Cumberland. I 
 in consequence went to St. James's Palace, where I saw the 
 duke. He was in bed, and severely wounded on the head, 
 and I think on both hands also. I did not see the wounds, 
 as the head was bound up. There was a great deal of blood 
 about the duke's bedroom in many parts, and the bed itself 
 was nearly covered. There were marks of blood on the door, 
 on one door certainly, and indeed, to the best of my recollec- 
 tion on both doors. I afterwards went to the room where the 
 body of Sellis was. It was a considerable distance from the 
 duke's room, and I think, to the best of my recollection, 
 there were four rooms to go through. I saw the body of 
 Sellis lying on the bed with its throat cut, and some blood 
 about the room. I particularly remarked that he had no 
 slippers or shoes on his feet. I remember in a room adjoining 
 the duke's room where there was a long narrow closet seeing 
 a pair of slippers. They were afterwards found to be Sellis's 
 slippers. I was not examined at the inquest." 
 
 Sir W. Waller, the next witness, proved seeing the duke 
 shortly after hearing of the attack. He said: "I found 
 His Royal Highness in bed, covered with blood, the room 
 full of people I did not know. I was desired to get the room
 
 94 TRIAL OF JOSIAH PHILLIPS. 
 
 cleared, which I did. The duke told me the state he was in, 
 and requested me not to leave him, which I never did night 
 or day either. I took my station by him until he was quite 
 recovered. At my earnest request the duke was removed to 
 Carlton House the same evening. The wound had been 
 dressed before I arrived. With great difficulty we got His 
 Royal Highness into a chair and removed him to Carlton 
 House. I walked by his side all the way. I was in attend- 
 ance upon him as a friend at Carlton House until the 4th of 
 August, when the duke went to "Windsor. I had ample 
 opportunities of seeing the wounds ; they were never dressed 
 without my being present. They were so severe that as to 
 the wound on the head, I saw the pulsations of the brain, and 
 the late King was so affected that he fainted away." 
 
 By the Lord Chief Justice. In your judgment could 
 these wounds have been given without an attempt to as- 
 sassinate ? It is utterly impossible, for they were severe 
 beyond all description, and the suffering of the duke after- 
 wards was such as I have never seen equalled. It was to 
 that extent that I dare not walk across the room. If I 
 accidentally touched the bed clothes he screamed with agony, 
 and he could not even bear the scratching of my pen when I 
 was writing in the room. 
 
 Samuel Thomas Adams, the coroner for the verge of the 
 palace, was then sworn. He said : " I summoned as coroner 
 a jury to form an inquest on the death of Sellis. I did not 
 summon the jury from the verge of the palace; in the verge 
 of the palace, but not of the palace itself. I am aware that the 
 statute of Henry VIII. requires yeomen of the household to 
 be summoned on the jury in the case of a death in a royal 
 palace, but I did not summon them from that class of 
 persons in this instance, but from persons in connection with 
 the palace. Mr. Francis Place, of Charing Cross, was fore- 
 man. No prior inquest had been summoned, only the one of 
 which Mr. Place was foreman. There was no jury that 
 refused to give a verdict before this jury. The inquest vras 
 held at the palace, and I presided as coroner. Several 
 witnesses were examined. It was an open court, and every 
 reporter who applied was admitted. I should think there 
 would be as many as fifty or sixty persons present, and
 
 TRIAL OF JOSIAH PHILLIPS. 95 
 
 several reporters who took notes. The jury examined the 
 duke's room and Sellis's also. I went with them. Sellis's 
 body was still lying on the bed. The jury examined it most 
 minutely. All persons who could give any information were 
 also examined. The inquest lasted about two hours. The 
 case was so plain that the jury did not require me to sum up 
 the evidence at all. A verdict was returned offelo de se." 
 
 Mr. Francis Place, the foreman of the jury, was then called 
 and sworn. His evidence corroborated in every respect that 
 of the coroner as to the inquest. He spoke to having exa- 
 mined the duke's bed, and that some of the hangings had 
 been cut apparently with the point of a very long sabre, and 
 added some particulars as to the examination of the body. 
 " I examined Sellis's body. The room in which it was laid 
 was a very small room, with a door at one end which went 
 down three stairs, and a door at the other end ; it was so 
 small that not more than four persons could examine the 
 body at the same time. I stayed in during the whole of the exa- 
 mination ; I examined the wound, lifted up the body, and 
 examined the back of it. After all the inquest had seen it once, 
 I went round again, and turned it right and left, and there 
 was no other wound except the large one in the neck. I was 
 there the whole of the time. I noticed Sellis's cravat, which 
 I turned round, and saw there was a slit cut in it which 
 penetrated the whole of the folds, and the inside fold was 
 tinged with blood. I saw the sword and the razor. The razor 
 was found on the left-hand side of the body ; and we found 
 the man was a left-handed man. Fifteen of the jury 
 concurred in the verdict ; one said he could not concur 
 in the verdict, for although he had no doubt the man 
 had cut his own throat, he considered no man ever did it 
 when he was sane ; another said he could not make up his 
 mind whether the man was sane or insane, and he therefore 
 gave no opinion as to that point. But the jury concurred in 
 the fact of self-destruction, though two doubted the fact 
 of sanity." 
 
 Joseph Jew, sworn : " I was in the service of His Royal 
 Highness the Duke of Cumberland at the time the attack was 
 made upon him in St. James's Palace. I have seen this book, 
 which purports to contain a deposition from an individual in
 
 96 TRIAL OF JOSIAH PHILLIPS. 
 
 the household of the duke. The facts contained in the 
 deposition were never given by me to anybody. What this 
 deposition contains as regards me is false. It is not true that 
 I was directed by the Duke of Cumberland to lay a sword 
 upon one of the sofas in his bed-chamber. I did not see the 
 duke shortly after he was wounded. I went for the doctor, 
 Sir Henry Halford, and did not see the duke again till he 
 was at Carlton Palace ; all that is stated here of my seeing 
 him at St. James's, and remarking the wounds were not 
 deep, is untrue. I do not know how deep the wounds were ; 
 I never saw the duke till after they were dressed in Carlton 
 House. I did not see him at Saint James's Palace at all. 
 It was not my duty to be in the room with the duke. I was 
 footman, not valet. I went into the room where Sellis's 
 body was lying some time after. The duke did not tell me 
 to call Sellis. I never gave any deposition to any one, nor 
 ever was asked to give a deposition." 
 
 His Royal Highness the Duke of Cumberland, sworn. 
 Did your Royal Highness sleep in your apartments at Saint 
 James's Palace on the night of the 31st of May, 1810? 
 Yes, I did. In the course of the night was your Royal 
 Highness awoke by any blow struck upon your forehead, or 
 any other part of your person ? I was awoke by a blow upon 
 my head (pointing to the right side of the head) . I should 
 state, when I was awoke at first, I was in a sort of half 
 sleep ; that I really at first did not conceive it was anything 
 else than like a blow, as if something had just tumbled upon 
 my head that was my first impression ; but then the blows 
 were repeated, and that made me wake. Now, was one of 
 these blows a blow which made any incision on the back 
 of your head? O yes ; a violent one. "Will your Royal High- 
 ness be so good as to point it out to the jury? [His Royal 
 Highness exhibited the back of his head to the jury.] Did 
 it produce any effusion of blood? An immense effusion. 
 Were you capable of seeing by what instrument the blow 
 was inflicted ? No ; I had not the least idea ; I could not 
 see that, except that the first idea that I had was that I was 
 atacked by somebody, and this calls to my idea the time that 
 it must have happened. The bed was placed in a position 
 that there was a looking-glass exactly opposite, and through
 
 TRIAL OP JOSIAH PHILLIPS. 97 
 
 a faint light from the window-shutter I saw a sparkling as 
 from a sword, in the glass. That made me first think that I was 
 attacked by a robber, and that made me make a dash at him. 
 I grappled with him and got this slit in my thumb, and 
 afterwards several other cuts ; in all I think I had seventeen 
 wounds. The moment I perceived myself attacked, I jumped 
 out of bed, and seized the sword, which gave me these cuts. 
 At that instant it was impossible for me to know whether I 
 had one or more persons in the room. I consequently, 
 knowing the position of the room, made for the door ; the 
 room was so constructed that in order to get to my servant's 
 room I was obliged to open two doors, one to me, and the 
 other from me ; and in that I got that second violent blow that 
 I received here at the back. I then first of all called my 
 servants, and at that moment a man of the name of Neale came. 
 I sent for Sir Henry Halford and Sir Everard Home. I have 
 applied to Sir Henry Halford to attend upon this occasion. 
 On account of a misfortune that has happened in his family, 
 it is impossible for him to attend. I was in a state of agony, 
 I suppose, from six weeks to two months from the wounds j 
 in short, it was not, I believe, till the beginning of August 
 that I was able to leave my house. I have read over the pub- 
 lication which forms the subject of this prosecution. 
 
 The Lord Chief Justice. I do not think you can go into 
 that. His Royal Highness has made an affidavit upon that 
 subject. 
 
 Sir CHARLES WETHERELL. Then if your lordship rules 
 that I have no right to put to the duke the negative of this 
 act imputed to him, I do not put the question if your lordship 
 so rules. 
 
 The Lord Chief Justice. I think that that is not at all 
 in issue on the present occasion. 
 
 Sir CHARLES WETHERELL. Then I will take the liberty 
 of putting that question to His Royal Highness, and your 
 lordship will have the goodness to tell me that I have no 
 right to put it. 
 
 The Lord Chief Justice. I feel it my duty to say that 
 that is not at all the present matter of inquiry, and it cannot 
 be gone into. 
 
 H
 
 98 TRIAL OF JOSIAH PHILLIPS. 
 
 Did your Royal Highness make an affidavit upon which 
 the rule was made absolute for this information ? I did. 
 
 Sir CHARLES WETHERELL. We need not trouble your 
 Royal Highness further. 
 
 This closed the case for the prosecution, and Mr. "Wakefield 
 then rose to address the jury on behalf of the defendant. His 
 speech is well worthy of perusal. It was of course impossible 
 for him to contend that there was no libel on the Duke of 
 Cumberland, and on that point he necessarily had to abandon 
 his client. His address, therefore, was directed more with a 
 view to mitigation of punishment than to obtain an acquittal, 
 which was obviously impossible. Mr. "Wakefield said : " I 
 own that I stand before you in rather a difficult position 
 to-day, and the difficulty of that position arises from several 
 causes. In the first place, no small cause is the very obscure 
 or rather the no station at all which I occupy in this court, 
 from the very little time during which I have belonged to the 
 bar. Another cause arises from seeing my learned friends, 
 whom I have seen here to-day, arranged against me. In this 
 or in any other court, none could have been selected more 
 remarkable for their intelligence, their knowledge, their ex- 
 perience, and their acuteness in their profession. I mention 
 these circumstances, because, although I have not gained a 
 name in my profession, I hope to gain a name ; and it might 
 be supposed that I was unaware of the difficulties which sur- 
 round me if I did not take the liberty of adverting to a 
 matter which is purely personal to myself. 
 
 " Gentlemen, you have heard the very able and eloquent 
 speech made by my learned friend on this occasion ; and you 
 have heard from him a doctrine laid down as to public morals, 
 and as to the investigation of truth, in which I beg leave to 
 say that I most cordially concur. I concur in every word 
 that was uttered by my learned friend on that subject, and 
 I think that doctrine more excellent could not be uttered ; 
 but I would wish you to consider whether that position which 
 he took up, namely, the position of a prince, which, he said, 
 was one that a philosopher would deplore, was not to be aggra- 
 vated by attacks like those in the publication which is now 
 before you. I would ask you to consider whether that posi- 
 tion does not cut two ways; because if publications like
 
 TRIAL OF JOSIAH PHILLIPS. 99 
 
 these do give pain, and do aggravate that situation which my 
 learned friend has called an unfortunate one, I take it that 
 the person who takes pains to call public attention to such 
 matters, to fix the public mind upon that which it would 
 otherwise have entirely forgotten, is himself greatly to blame 
 for his own indiscretion. Not the same quantity of blame, 
 of course, can be meted out to him as to the author of these 
 publications ; but when he is complaining of them he ought 
 to reflect whether he has exercised that sound discretion which 
 all men would exercise, in abstaining from referring to a 
 subject which might otherwise, and which must otherwise, 
 have been buried in complete oblivion. Another thing is to 
 be considered. Gentlemen, I take it that in your character 
 of jurors you have a duty to perform over and above that 
 of merely considering whether this publication entitles the 
 prosecutor to a verdict or not ; you have to consider all the 
 circumstances attending the publication. You are judges of 
 the law and the fact, according to the words of the Act of 
 parliament relating to the law of libel ; and in weighing all 
 the facts and all the circumstances which surround this case, 
 I apprehend that I am not going beyond the strict truth 
 when I say that it is a part of your duty to consider whe- 
 ther prosecutions like these do conduce to the maintenance 
 of that public morality which was alluded to by my learned 
 friend. I cordially agree, as I told you, with all he said upon 
 that subject ; but I do consider that a discretion which is 
 anything but sound has been exercised in bringing this 
 matter into court. And I think so, not only as relates to 
 the individual prosecutor, but also as relates to the public in 
 general. I think as relates to the individual prosecutor, that 
 it will fail in attaining the object for which it was instituted ; 
 that these proceedings will fail in attaining that object; and 
 I also think that very great evil is likely to result from their 
 discussion in all classes of society. 
 
 " Now something was said by my learned friend as to the 
 mode in which this prosecution had been conducted. He 
 told you, if I understand his argument correctly and I think 
 I did understand it correctly, because he made use of the 
 same argument when the rule was made absolute in this 
 business, and it was this that the Duke of Cumberland 
 
 H 2
 
 100 TRIAL OF JOSIAH PHILLIPS. 
 
 might have proceeded by many other means to endeavour to 
 obtain a remedy for any injury which he had sustained ; 
 but that he thought proper to take the mode which he has 
 adopted, that of proceeding by way of criminal information, 
 because it afforded him an opportunity of putting upon record 
 his absolute denial of all the charges imputed to him. And I 
 remember well that my learned friend said, at the time of the 
 rule being made absolute, that His Royal Highness appeared 
 in this court as any other private person would appear ; that he 
 did not take advantage of that exalted rank that belongs to 
 him ; but that he appeared here as any private individual. 
 And my learned friend boasted of the magnanimity which he 
 displayed by taking such a course. Now, gentlemen, I own 
 that I do not see the truth of that observation, provided that 
 you agree with me that there is indiscretion in these 
 proceedings at all, provided you agree with me that any 
 public injury can follow from them, I cannot see what the 
 magnanimity is of a royal duke employing the greatest 
 talent, the greatest experience, and the greatest knowledge 
 at the bar, in order to crush an individual who can afford to 
 employ none but the humble advocate who now addresses 
 you. I own that it is a sort of magnanimity of which I 
 never heard before, I have thought that magnanimity was 
 a large, a noble quality ; that it was one which enabled the 
 possessor of it to overlook all petty injuries, all minor in- 
 sults, all attacks upon his character which could not be 
 believed. And I would ask you, gentlemen, and I will 
 put it to any man who is at all acquainted with the 
 world who is at all acquainted with the circle in which 
 His Royal Highness moves I would put it to my learned 
 friend, because i know that his honourable mind would 
 not permit him to give me anything but the most direct 
 answer, and I would join issue with him upon that point 
 I would ask him, does he in his conscience believe that 
 His Royal Highness has suffered one tittle of injury what- 
 ever from the publication in question ? I own that I cannot 
 understand how a person of his exalted rank can suffer by 
 the attack of a man who is almost anonymous ; for you will 
 remember, gentlemen, that these proceedings are against the 
 printer, they are not against the author ; they are not against
 
 TRIAL OF JOSIAH PHILLIPS. 101 
 
 either the head that planned, or the hand that wrote this publi- 
 cation; they are merely against the man who used the types 
 with which it was printed. How proceeding against such a 
 person can benefit him, I cannot understand. You heard 
 from my learned friend several observations upon the art 
 with which this publication had been concocted, and you 
 have also heard a great deal of evidence as to the truth of 
 the facts which are stated in that publication. 
 
 " Now, gentlemen, I think that I have a right to call upon 
 you to throw from your minds altogether that evidence, and 
 I ask you to do so for this plain reason, that if the false- 
 hood of all these facts had been proved to you to-day, and 
 it was impossible from the length of time that has elapsed 
 to have done that, but if that had been done, it has nothing 
 at all to do with the subject; the truth has nothing at all to 
 do with the subject, for this reason, because if, on the con- 
 trary, I had proved that the statements in that book were 
 all true, I should have been told, nevertheless, it is a libel. 
 Therefore I say, gentlemen, that what is sauce for the goose 
 is sauce for the gander ; and although it is His Royal High- 
 ness who comes into court on the present occasion, I know 
 the character of English jurymen too well not to feel per- 
 suaded that they will mete out to him the same measure of 
 justice as they would give to the meanest peasant. And I 
 say, gentlemen, that if I had shown that every syllable which 
 is in that publication were true it is not necessary for me 
 to admit it is false, but if I had shown that it is true I 
 should have been told that it was no defence whatever, and 
 therefore I want to know how the thing is aggravated, logi- 
 cally and reasonably speaking; I want to know how the 
 thing is aggravated by its being shown that it is false. 
 
 " Now, gentlemen, there is another point, and only one, 
 with which I shall trouble you, and that is just to remember 
 the words of the information in this case, and to consider 
 in your own minds whether it has been proved to you to-day 
 that the words of that information contain a correct descrip- 
 tion of the charge imputed to the defendant ; the words of 
 the information are that this publication has caused a great 
 damage, scandal, disgrace, and infamy to His Royal Highness 
 the Duke of Cumberland. Now I do not remember that wo
 
 102 TRIAL OF JOSIAH PHILLIPS. 
 
 have heard one single word of evidence tending to prove that 
 assertion. We have heard evidence relating to matters that 
 have nothing at all to do with the present prosecution. As 
 far as relates to the doctrine of the law of libel, we have heard 
 evidence as to the facts ; but it is your duty, gentlemen, to 
 consider what you have to perform in relation to the law of 
 libel, because that law involves all those rights and privileges 
 to which allusion was made by my learned friend ; all those 
 rights and privileges which he said publications like this 
 were calculated to invade and destroy; nay, he went even 
 so far as to tell you that if they were permitted to go 
 unpunished, this would become a beastly nation. Yes, 
 gentlemen, that may be the case ; but I will also take the 
 liberty of saying that if, as jurymen, you do not do your 
 duty in expounding the law of libel through your verdict to- 
 day, and if other jurors should follow your example, the best 
 safeguard of liberty will be destroyed, and then indeed Eng- 
 land would be a beastly nation. 
 
 " Gentlemen, it is for you to consider, therefore, whether a 
 publication like this, which instead of being an artful pub- 
 lication I think is one of the least artful, one of the most 
 clumsy, one of the weakest publications that ever issued 
 from the press ; if you think that such a publication as this, 
 whose merits have been magnified^ of course you know with 
 what object, by my learned friend; the writer of which has 
 been called, or almost called at all events it has been said 
 that he has concocted a great deal of learning, philosophy, 
 religion, and morality. Why, gentlemen, the words are there 
 the words morality, religion, and so forth, are there but 
 I would ask if you have read the publication, and if you have 
 not, I would beg of you just to cast your eyes over it, and 
 see whether it is not one of the worst written books that 
 ever was published. I consider the whole turn of the thing 
 is so extremely clumsy that no man could believe it for a 
 moment. There is one expression which struck me, in a 
 passage which was read by my learned friend, which is cha- 
 racteristic of the style in which the thing is written, and will 
 show you the extreme want of the power of composition 
 which whoever wrote it must have possessed ; the extreme 
 want of a common knowledge of the rules of composition. He
 
 TRIAL OF JOSIAH PHILLIPS. 103 
 
 talks about serving him with his drink for the night : after 
 His Royal Highness had retired to bed he was served with 
 his drink for the night. I never heard that people were 
 served with drink for the night ; they generally take drink 
 before they go to bed (a) . If he had been talking about the 
 old troubadour, or some story of the Saxons, that might have 
 done, but he talks about serving him with his drink for 
 the night, and then he talks about an indefinable legacy to 
 every child of humanity, and all kinds of nonsense of that 
 description, which shows that the thing is one of the very vilest 
 publications in the way of composition that ever was printed. 
 So much for all the art which my learned friend has attributed 
 to it. So much for the inference which I suppose he will 
 draw from it, because I take it he would draw this inference, 
 from being artfully written, that it was maliciously written- 
 Now, I do not see if the malice is to entirely depend upon the 
 art displayed in the publication, what quantity of malice there 
 is in it, for art there is none none whatever. 
 
 " Therefore, gentlemen, I shall leave this matter in your 
 hands, perfectly persuaded that you will exercise a sounder 
 discretion on the subject than what has been shown by the 
 prosecutor on the present occasion ; because I am satisfied that 
 you will agree with me that proceedings like these, instead of 
 crushing the publication against which they are made, will 
 give increased strength to it : they spread it in holes and 
 corners where it never would have arrived at ; they therefore 
 defeat their object. They cause also other evils to which I have 
 alluded, and I think you will agree with me that His Royal 
 Highness would have been more discreet, that his advisers 
 would have shown more judgment, if they had refrained from 
 instituting this proceeding. His Royal Highness may rest 
 assured that there is one safeguard for the character of all 
 men, which all men of good character, when they are not 
 misled by a particular sort of indiscretion, like that which 
 appears to me to have existed in the present case, generally 
 adopt, and that course is to leave their character to take care 
 of itself. That is the course which sensible people generally 
 
 () This statement is, however, confirmed by Strickland in his 
 Information, p. 114.
 
 104 TRIAL OF JOSIAH PHILLIPS. 
 
 adopt, and they generally adopt it with the most perfect 
 success. I feel, gentlemen, that you cannot for one moment 
 conceive that the loose, the vague, the childish statements, 
 I had almost said, and facts contained in that publication 
 can for one moment attach a slur on the character of His 
 Royal Highness the Duke of Cumberland ; you might as 
 easily believe that a gnat could sting through the hide of an 
 elephant/' 
 
 The Lord Chief Justice then proceeded to sum up the 
 case to the jury. He said : " This is an information 
 filed against Josiah Phillips, as the publisher of the book 
 in question, for a libel reflecting strongly on the person 
 of His Royal Highness the Duke of Cumberland. Whe- 
 ther that person is the author of the work we do not 
 know, but it appears that he is the printer and pub- 
 lisher, or at least the publisher, for his name appears in 
 the title-page as the publisher of the book. Nothing has 
 been said about his being the author, and whether he is the 
 author of that work or not, we have no proof before us ; he 
 may or may not be. It is a matter for the discretion of 
 those who feel they are injured by a publication either to 
 require the author to be given up, or to proceed against the 
 printer, as they may seem to think fit ; and in cases where 
 the matters stated are within the knowledge of the party 
 stating them, he ought to have an opportunity of being able 
 to prove them, if true. In cases like those, perhaps, it may 
 be more discreet to require the printer to give up his author, 
 for the purpose of proceeding against such party. But that 
 is not at all so in the present case, because there is no person 
 who pretends to know anything upon the subject more than 
 all the public know, except with reference to the witness 
 Jew, who distinctly disproves that part of the statement into 
 which his name has been introduced. The question is, 
 whether you are satisfied that this publication reflects on the 
 conduct of the Duke of Cumberland ; whether it is meant 
 to scandalize and vilify His Royal Highness, and to impute 
 that His Royal Highness was accessory or privy to the 
 commission of the crime of murdering one Joseph Sellis, 
 and to deprive His Royal Highness of his good name and 
 fame.
 
 TRIAL OF JOSIAH PHILLIPS. 105 
 
 " Now, then, they set out in the information that which they 
 call the libel, and which has been read to you. In the first 
 place, it says, after a great deal of pomp, ' that an inde- 
 scribable sensation was excited by the announcement of an 
 attempt to murder His Royal Highness the Duke of Cum- 
 berland. It was said to have been the result of malice on 
 the part of the duke's valet : as faithful historians, we give 
 the particulars of these authenticated facts/ So that here 
 is a distinct statement of certain facts, which this person, 
 who, whether he composes well or not, writes in a book that 
 has a plausible appearance, and which many persons would 
 buy, and which many persons, if the statement were left un- 
 answered, would conceive to be of some authority on such a 
 point ; and this man thinks proper to publish facts of this 
 kind. He says, ' Early in the morning of June the 1st an 
 inquiry was made in the palace for the apprehension of 
 certain individuals, then presumed to have escaped, in con- 
 sequence of an attempt to commit a most dreadful and then 
 unaccountable murder, at an early hour after midnight ;' 
 and then he states some particulars of what passed on that 
 point ; and then he goes on to talk about his own love of 
 truth, and his wish to give an indefinable legacy to every 
 child of humanity, and some language that I think very 
 well warrants the learned counsel for the defendant in his 
 criticisms upon this composition ; but then he goes on to 
 say, ' The selection of the jury and the chosen evidence 
 produced considerable disgust in many persons who were 
 acquainted with the more private life and habits of the 
 duke/ Then . Sir Everard Home's declaration is set forth, 
 which certainly goes a great way to disprove the whole of this 
 statement. But then it has been introduced by the language 
 reflecting on the character of His Royal Highness, and is 
 followed by this extraordinary statement : ' An individual 
 then in the service of the duke, who most probably is now 
 alive, information of which fact might be ascertained by 
 application to the King of Belgium, was inclined to give his 
 deposition upon this subject in the following terms, alleging 
 as his reason the very severe pangs of conscience he had 
 endured through the secrecy he had manifested upon this 
 most serious affair.' Then in the book the word ' deposi-
 
 106 TRIAL OF JOSIAH PHILLIPS. 
 
 tion' is written as a title by itself, and after that follows the 
 supposed statement of that person. And, undoubtedly, what- 
 ever want of skill and of art there may be in composing a 
 book, everybody knows that where there is a deposition set 
 forth, and that is followed by quotations, those persons who 
 are not extremely attentive to the particular mode of state- 
 ment naturally carry with them the proposition that that is 
 a deposition which actually has been made. Some allusion 
 has previously been made to a legal inquiry into that sub- 
 ject; and anybody, I think, would suppose that this deposition 
 had somewhere or other at least been put forward by some- 
 body who was acquainted with the nature of these transactions. 
 It now turns out, on inquiry from the person who alone 
 appears to be alluded to upon that subject as having made 
 any statement in relation to it, that some of the leading facts 
 imputed to him are utterly untrue, to the knowledge of that 
 person who is supposed to have deposed to them. I need 
 not trouble you with the particulars of that deposition, but 
 will merely call your attention to the manner in which it is 
 set out in this work. 
 
 " Now, gentlemen, it is set forth as a deposition ; it had 
 every appearance of authenticity and every appearance of 
 having been used upon some occasion of that sort. And 
 then that deposition being set forth, stating the facts in a 
 manner that points to such a conclusion as I have adverted 
 to, I will take it up as the learned counsel for the defendant 
 has submitted it to you (not a just criterion by any means 
 in every case), but as putting it in the most favourable way 
 possible for the defendant who stands before you. Supposing, 
 instead of an illustrious member of the Royal Family, this 
 publication had been issued with regard to one of ourselves, 
 or with regard to any individual with whom any one of us 
 was acquainted in society, would it or not have been impos- 
 sible for that individual to rest silent under such an imputa- 
 tion ? And could any man who lives at all in society have 
 escaped some degree of pain, if knowing that such facts were 
 said of him, he had declined the opportunity of denying them 
 upon oath, and proceeding afterwards to bring the criminal 
 to justice? The particular course of proceeding that has
 
 TRIAL OF JOSIAH PHILLIPS. 107 
 
 been adopted here has this peculiarity in it, that the person 
 that moves for leave to file a criminal information cannot 
 obtain it without distinctly swearing to the falsehood of the 
 acts imputed to him ; and the person who makes the charge 
 has the opportunity, in answer to that statement, of denying 
 it upon oath, and of proving any facts which either go to 
 show that the party applying to the court is guilty of the 
 charge that has been made against him in the publication, or 
 to show even that there can be reasonable doubt, and a 
 probable cause for making the imputation that the party 
 publishing such a book has made. It could only have been 
 upon no such counter- affidavit being filed that this rule was 
 made absolute, according to the view of the Court of King's 
 Bench something more than a year ago, when the application 
 was made ; and therefore it comes before you in the present 
 stage of the proceedings with the fullest proof that these facts 
 were untrue which are imputed in the publication which you 
 are called here to pronounce upon. 
 
 " I submit this case to you, gentlemen, upon the only point 
 that is now before you, namely, is or is not this party guilty 
 of having published a libel strongly reflecting upon the 
 character of His Royal Highness the Duke of Cumberland ? 
 If you are of opinion he has, you will say he is guilty ; if 
 that appears to you to rest in any reasonable doubt, you will 
 say he is not guilty. But you will not take into your consi- 
 deration any views of what course it may be most expedient to 
 take upon such occasions, for the question, aye or no, guilty 
 or not guilty of publishing this libel, is the question now 
 submitted to you for your consideration." 
 
 The jury immediately returned a verdict of Guilty (a). 
 
 (a) The contemporary reports of the trial are all silent as to the result 
 of the verdict, but from inspection of the Crown roll preserved at the 
 Public Record Office it appears that on the 2nd day of October in the 
 following year the defendant was outlawed.
 
 108 TRIAL OF JOSIAH PHILLIPS. 
 
 The following are copies of some of the depositions made 
 the morning after the attack on the Duke of Cumberland. 
 The principal ones only are inserted : 
 
 MIDDLESEX. TJie Information of His Royal Highness ERNEST 
 AUGUSTUS, Duke of CUMBERLAND, 
 
 Who, being upon his oath, saith that before three o'clock 
 this morning, being in bed and asleep, he received two blows 
 upon his head, which awoke him, and upon starting up he 
 received two other blows upon his head, which, being accom- 
 panied with a hissing noise, it occurred to him that some bat 
 had flown against him, being between sleeping and waking, 
 and immediately received two other blows ; there was a lamp 
 burning in the room, but he did not see anybody ; that 
 there was a night-table standing near the bedside, where a 
 letter lay which was covered with blood. His Royal High- 
 ness says he then got up and made for the door, which opens 
 at the head of the bed ; he then received a wound upon his 
 right thigh with a sabre ; he then called out to Neale, his 
 page, and said there was a murderer in his room, and upon 
 returning to his bedroom with Neale, he perceived that the 
 door leading to the yellow room was wide open, which is 
 always locked the last thing when he gets into bed ; a naked 
 sword had been dropped, which he supposes must have given 
 the wound in his thigh. The man who gave the blows never 
 spoke a word, and upon Neale returning with His Royal 
 Highness, the man had fled through to the yellow room which 
 leads into the ball-room, through the other yellow room into 
 the armoury, to the summer bedroom through the dressing- 
 room into Sellis's room (the page whom His Royal Highness 
 believes gave him the wounds) . His Royal Highness then 
 went downstairs with Neale, and ordered the doors to be 
 secured, that no person might escape out of the apartments. 
 His Royal Highness further states that upon his return into 
 his bedroom, he discovered that the sword which lay upon 
 the floor was his own regimental sword, and in the closet, 
 at the foot of his bed, was found the scabbard, with a pair of 
 slippers belonging to Sellis, and the key of the closet-door, 
 which is usually on the side of the door next the room, was
 
 TRIAL OP JOSIAH PHILLIPS. 109 
 
 found on the inside of the door next the closet ; there was also 
 a dark lantern in the closet, and from these circumstances he 
 has reason to believe, and doth believe, that the blows and 
 wounds he received were given him by the said Joseph Sellis. 
 His Royal Highness further saith that the said Joseph Sellis 
 had not incurred his displeasure, and that he had not any 
 reason to think ill of him. 
 
 The mark of X hi g Royal Highness the Duke of 
 CUMBERLAND. 
 
 Sworn before me, the 31st May, 1810. 
 J. READ. 
 
 MIDDLESEX. The Information of CORNELIUS NEALE, Valet to 
 His Royal Highness the Duke of CUMBERLAND, 
 
 Who, being upon his oath, saith that whilst he was in 
 bed, in a room adjoining the bedroom of His Royal High- 
 ness, a little before three o'clock, he heard His Royal Highness 
 call out " Neale ! Neale ! I am murdered !" upon which he 
 got out of bed and met the Duke of Cumberland at the door. 
 His Royal Highness said the murderer was in his bedroom. 
 Informant says he instantly darted into the bedroom 
 of His Royal Highness and seized the poker, and then per- 
 ceived that the door leading into the yellow room was wide 
 open, which he immediately ran to, and set his foot upon a 
 naked sword which was lying on the floor, just by the door. 
 He took up the sword, and asked leave of His Royal High- 
 ness to pursue the assassin ; but His Royal Highness desired 
 he would not, but to call the servants. His Royal Highness 
 then leant upon informant's arm, and they went together into 
 the porter's room, and called the porter, and he was ordered by 
 His Royal Highness not to suffer any person to go out of the 
 house. They then returned upstairs again, and upon going 
 upstairs they met Mrs. Neale, whom His Royal Highness 
 desired to call Sellis. She ran to his bedroom, and came 
 back again and said the door was locked. His Royal High- 
 ness then, finding himself faint from loss of blood, lay down 
 upon the bed. His Royal Highness then desired informant
 
 110 TRIAL OF JOSIAH PHILLIPS. 
 
 to look after the assassin, and to find out where he could 
 have been concealed. Informant opened the door at the foot 
 of the bed leading to a small room which has three closets ; 
 the water-closet, the closet where informant supposed the 
 assassin had concealed himself, and another closet for dirty 
 linen. In the closet where he supposed the assassin was 
 concealed, informant found a pair of black leather slippers, 
 with the name of Sellis written in each slipper, which in- 
 formant believes to be of the handwriting of Joseph Sellis, 
 an Italian, one of the valets of His Royal Highness the Duke 
 of Cumberland ; there was also a dark lantern, a bottle of 
 water, and the scabbard of the sword which was found upon 
 the floor in the bedroom ; there were also two bolsters, which 
 are used in the day-time for ornamenting the bed of His 
 Royal Highness, and the key of the closet was in the inside 
 of the door, which was not usual,, and could have been of no 
 use but for the purpose of locking the door, where he supposes 
 the assassin had concealed himself. Informant saith about 
 this time a report came to the duke that Sellis was murdered. 
 Informant saith that he assisted His Royal Highness to go 
 to bed. About this time Mr. Home, the surgeon, came, and 
 this informant assisted him in binding up his wounds. In- 
 formant saith there are several wounds upon his Royal High- 
 ness's head, one upon his throat. That the back of his right 
 hand is cut across, and that there are wounds upon his left 
 arm, and a wound upon the back of his right thigh, and he 
 has reason to believe that all the wounds were given by the 
 sword found upon the floor in the bedroom, which was very 
 bloody. Informant saith that between the duke's room and 
 informant's room there are three doors, but only a wainscot 
 partition between the beds. That he never heard any noise 
 till the duke called out " Neale ! Neale ! I am murdered I" 
 Informant saith that he attended His Royal Highness to bed 
 last night about twelve o'clock ; and after His Royal Highness 
 had passed the yellow room (which he always does when he 
 goes to bed) informant shut the door, and is very sure he 
 locked it, and he afterwards remained in the duke's room 
 until His Royal Highness got into bed. No other person 
 was in the room, and His Royal Highness desired informant 
 would call him at seven o'clock. Informant went out by the
 
 TRIAL OF JOSIAH PHILLIPS. Ill 
 
 doors leading to his own room, and ordered the housemaid 
 to light His Royal Highness's fire at six o'clock ; he then 
 went to his own room, and went to bed. The doors between 
 His Royal Highness's bedroom and the bedroom of this in- 
 formant were shut, but not locked. His bedroom door next 
 the passage is always open j that he is very wakeful, and if 
 anyone had come in that way he must either have heard or seen 
 him ; there being no other entrance to His Royal Highness's 
 bedroom but the door from the yellow room, which he left 
 locked, this informant verily believes that the said Joseph 
 Sellis, or some other person who made the assault upon His 
 Royal Highness, must have concealed himself in the closet 
 where he found the slippers, the dark lantern, and the scab- 
 bard of the sword. Informant saith that the said Joseph 
 Sellis had taken out His Royal Highness's uniform and the 
 sword, and brought them into his bedroom for a regiment 
 inspection which did not take place, and Sellis afterwards 
 returned the regimentals to the wardrobe, but left the sword 
 in the bedroom, where informant believes he saw the sword 
 some time yesterday. 
 
 CORNELIUS NEALE. 
 Sworn before me, May 31, 1810. 
 J. READ. 
 
 MIDDLESEX. The Information o/ANN,/Ae Wife of CORNELIUS 
 NEALE, Housekeeper to His Royal Highness the Duke of 
 CUMBERLAND, 
 
 Who, being upon oath, saith she was called up this morn- 
 ing, about three o'clock, by her husband, and at the same 
 time heard His Royal Highness exclaim that he had been 
 murdered. Upon going into Mr. Neale's room (called the 
 page's room) she found His Royal Highness bleeding very 
 much. Mr. Neale was with him. His Royal Highness desired 
 her to call the servants, and after His Royal Highness had 
 got back to his bedroom, she went and called Joseph Sellis 
 at his room door, but no one answered ; the door was fast. 
 The porter was with her, and tried to open it, but could not. 
 He then knocked very violently at the door, but no one 
 answered. She then tried to open the door of the yellow
 
 112 TRIAL OF JOSIAH PHILLIPS. 
 
 room, leading to the ball-room, but could not open it, and 
 found afterwards that the door was bolted withinside, which 
 she never knew it to be before. Informant saith that she 
 then returned by the ball-room through the yellow rooms, 
 and through the summer rooms, to get at Sellis's room the 
 other way, and thinks five or six minutes had elapsed since 
 they tried at the first door ; and just as she got to the bed- 
 room door she heard a guggling sort of noise, like water in a 
 man's throat, and heard a dropping on the floor like water, 
 and the porter looked into the room, and exclaimed, c< Good 
 God ! Mr. Sellis has cut his throat ;'' upon which she became 
 very much frightened, and went away and desired the porter 
 to get assistance. Informant says that the folding-doors 
 leading from the ball-room into the yellow room were shut, 
 and all the other doors from the ball-room to Sellis's room 
 were open. 
 
 ANN NEALE. 
 
 Informant further saith that she has known Joseph Sellis 
 for near twelve years, and for the last five years he has lived 
 in His Royal Highness's service : says that he was very 
 obstinate and quarrelsome, and would not bear contradiction, 
 not even from His Royal Highness, and would never acknow- 
 ledge himself in fault. Had observed nothing particular in 
 his deportment lately. He had been ill for three weeks or a 
 month, of a violent cold, but was getting better of it. In- 
 formant says that His Royal Highness had been very kind to 
 him, and about a week or ten days ago had permitted him 
 to go within the carriage, instead of riding on the outside, 
 which he had been accustomed to do. She has no reason 
 to believe that he had any grudge to His Royal Highness : 
 that during his illness His Royal Highness permitted him 
 to go to bed, instead of sitting up for him, which it was his 
 place to do every third night. That during the last four or 
 five years His Royal Highness had allowed his wife and 
 family to live in the house, with an allowance of coals and 
 candles. That (after the birth of the last child) about three 
 months ago, His Royal Highness and the Princess Augusta 
 stood for the christening by proxies, and she has heard Sellis 
 say that the Queen had made him a present of two pieces of
 
 TRIAL OF JOSIAH PHILLIPS. 113 
 
 Indian muslin, and that the Princess Augusta had also given 
 him a piece, with several other presents for the child's bap- 
 tism. Informant saith that the Duke of Cumberland was 
 very partial to Sellis, and always had him to travel with him. 
 He lived very much to himself, and was very distant with 
 the other servants. Informant says that there are a pair of 
 green doors across the gallery which separates His Royal 
 Highness's apartments from the Queen's public rooms, which 
 are always kept locked, of which she has the key ; but there 
 was another key, which Sellis had, and which he informed 
 her His Royal Highness had permitted him to get made in 
 order that he might pass from His Royal Highness's apart- 
 ments to where his wife lived without going out of doors, and 
 that he must have passed that way yesterday. Informant 
 farther says that in passing through the ball-room and the 
 yellow room adjoining, she found the upper part of the win- 
 dow-shutters open in the ball-room, the yellow room adjoining, 
 and one in the spare bedroom, which was usually shut at 
 night. ANN NEALE. 
 
 Sworn before me, M,ay 31, 1810. J. READ. 
 
 MIDDLESEX. The Information of MATTHEW HENRY GRASLIN, 
 Servant to His Royal Highness the Duke of CUMBERLAND, 
 
 Who, being upon his oath, saith that he was called up this 
 morning about three o'clock by Mrs. Neale, who said, " Get 
 up, get up ! the duke is murdered ! " Informant says he 
 got up and took a pair of pistols with him ; and when he 
 came to the sitting-room next His Royal Highness's bed- 
 room, Mrs. Neale desired him to call Joseph Sellis, but he 
 was not able to find the way to the apartments where Sellis 
 and his wife lived, and came back again; and then the 
 porter went and brought back word that Sellis was sleeping 
 in the duke's house. He then went, in company of Mrs. 
 Neale and the porter to Sellis's room door, where they called 
 and knocked, but no one answered. They then went round 
 by the ball-room and summer apartments, and searched, as 
 they went on, till they came to the other door of Sellis's room, 
 where they heard a noise like water in some man's throat, 
 and the porter cried out, " Sellis is murdered ! " The door 
 
 i
 
 114 TRIAL OF JOSIAH PHILLIPS. 
 
 of the room was open, but neither of them went into the 
 room ; they went back for further assistance. Informant 
 says that he saw Sellis last night about eight o'clock in the 
 porter's room ; he came there, and asked who was for Windsor 
 to-morrow. Informant says he answered that he was. 
 Informant further says that in passing through the ball- 
 room and the summer apartments, two window-shutters of 
 the ball-room were a little open, and one window-shutter in 
 each of the other rooms was a little open at the top. 
 
 MATTHEW HENRY GRASLIN. 
 Sworn before me, May 31, 1810. J. READ. 
 
 MIDDLESEX. The Information of THOMAS STRICKLAND, Under 
 Butler to His Royal Highness the Duke of CUMBERLAND, 
 
 Who, being upon oath, saith that he saw Joseph Sellis 
 last night, about ten minutes before eleven o'clock, in His 
 Royal Highness's bedroom. He was standing by the dress- 
 ing-table, with what appeared to this informant to be a shirt 
 in his hand. Nothing passed between us. Informant says 
 he went there, as it was usual for him to do, to take up His 
 Royal Highness's cup, which he placed upon the stand by 
 the bedside. Informant says he was not surprised at seeing 
 Sellis there, as he did not know but that it was his turn to 
 be in waiting. Sellis looked earnestly at him, and had a 
 smile upon his countenance, but did not speak. Sellis had 
 his coat on, but he did not observe any other part of his 
 dress, nor did he take notice whether there was or not a sword 
 in the room. Says he had very little intercourse with Sellis, 
 but when he had, he always found him to be a very civil man. 
 He left Sellis in the duke's room, and never saw him after- 
 wards. THOMAS STRICKLAND. 
 Sworn before me, May 31, 1810. J. READ.
 
 THE TRIAL 
 
 OF THE CASK 
 
 SMYTH . SMYTH 
 
 AND OTHERS, 
 AT THE GLOUCESTER SUMMER ASSIZES, 
 
 BEFORE ME. JUSTICE COLERIDGE AND A SPECIAL JURY, 
 
 On August 8th, 9th, and 10th, 1853. 
 
 Counsel for the Plaintiff: Mr. Bovill (now Chief Justice of the 
 Court of Common Pleas), Mr. Phipson, and Mr. Dowdeswell. 
 
 For the Defendants : Sir Frederick Thesiger, Q. C., Mr. Crowder, 
 Q. C., Mr. Alexander, Q. C., Mr. Gray, Mr. Skinner, and Mr. Taprell. 
 
 INTRODUCTION. 
 
 " Magna est veritas et prcevalebit !" Seldom has the truth 
 of this maxim been more strikingly exemplified than in the 
 case of the Claimant to the large estates of the Smyth family 
 in Somersetshire and Wiltshire " Sir Richard Hugh Smyth, 
 Baronet," otherwise " Dr. Smith/' otherwise " Thomas 
 Provis." Seldom has exposure been more complete, more 
 overwhelming, or more merited. Since the trial of Alexander 
 Alexander, soi-disant Earl of Stirling, at Edinburgh, in the 
 year 1839, for forgery (to which the present case bears in 
 some respects a great resemblance) there has probably been 
 no civil cause in modern days which attracted at the time so 
 much attention as the one now under consideration (a) . 
 
 A short statement showing the pedigree of the Smyth 
 family, and how the claim originated, will perhaps be found 
 
 () When this was written the Tichborne Case was only in its infancy, 
 and the trial had not commenced. 
 
 i 2
 
 116 TRIAL OF SMYTH V. SMYTH. 
 
 useful for the purpose of following the case attempted to be 
 set up on the part of the Claimant ; but as the whole of the 
 interest of the trial is derived from the evidence of the 
 plaintiff himself, from his cross-examination by Sir F. Thesiger, 
 and from the dramatic denouement and collapse of the whole 
 case, no further summary or outline will be attempted. The 
 clear and lucid manner indeed in which the case was opened, 
 under circumstances of great and unexpected difficulty, by 
 Mr. Bovill, whose opening statement is preserved in the fol- 
 lowing report, as far as possible, is in itself far better and 
 much more intelligible than any outline. 
 
 In the year 1800 there died in Gloucestershire a Mr. Thomas 
 Smyth, a gentleman of ancient family and large landed pro- 
 perty, known and referred to in the following report as 
 Thomas Smyth of Stapleton. He left issue, 
 
 1. Sir Hugh Smyth. 
 
 2. Sir John Smyth. 
 
 3. Two daughters : one afterwards married to John 
 
 Upton, Esq., and the other to Colonel Way. 
 
 Thomas Smyth left also a will, whereby he devised the 
 Stapleton Estate, in respect of which the action was brought, 
 to his second son, John, for life, with remainder to his issue 
 in fee, and in default of such issue to his (testator's) eldest 
 son, Hugh, in fee. In default of any issue of Hugh the estate 
 then went to the daughters above named successively in fee ; 
 and it was in fact by the son of one of the daughters of 
 Thomas Smyth that the estate was held at the time of the 
 action being brought, both Sir John and Sir Hugh Smyth 
 having died without issue. 
 
 On Sir John Smyth's death without issue the estate went, 
 under the limitations contained in Thomas Smyth's will, to 
 Sir Hugh Smyth and his issue in fee ; and if the Claimant 
 could have made out that he was the eldest legitimate son of 
 Sir Hugh Smyth he would indisputably have been entitled 
 to the estate. But, on the other hand, if Sir Hugh left no 
 issue the defendant would be entitled. Both parties claimed 
 under the same will, and the real question in dispute was 
 whether Sir Hugh Smyth, the eldest son of Thomas Smyth 
 of Stapleton, had left issue. 
 
 Sir Hugh Smyth was twice married, first to a Miss Wilson,
 
 TRIAL OF SMYTH V. SMYTH. 117 
 
 by whom it was admitted by both sides he had no issue, and 
 secondly to a Miss Howell, by whom it was equally admitted 
 he had no legitimate issue. The Claimant could not therefore 
 by any possibility make out his title as heir-at-law to Sir 
 Hugh Smyth by either of these marriages. He set up, how- 
 ever, that Sir Hugh had been thrice married, and that pre- 
 vious to the marriages mentioned above he had married in 
 Ireland a Miss Jane Vandenbergh, and it was this marriage, 
 and the subsequent birth of himself as the issue of it, that 
 the Claimant sought to prove in the present action. 
 
 Mr. Bovill, on whom, in consequence of the absence of Sir 
 Fitzroy Kelly and Mr. Keating, the conduct of the case had 
 unexpectedly devolved, after explaining the absence of his 
 two learned leaders, proceeded to give a concise outline of 
 the facts as relied upon by the plaintiff. 
 
 " The question at issue," he said, " is whether the plaintiff is 
 entitled, not only to a small estate called the Heath House, 
 and the adjoining park at Stapleton, in this county, but 
 also to an estate at Elmington, in the parishes of Henbury 
 and Compton, near Bristol, and to other larger estates in 
 Somersetshire and Wiltshire belonging to the late Sir Hugh 
 Smyth and to Sir John Smyth, late of Ashton Court, near 
 Bristol. The rentals of these estates amount to upwards of 
 20,000 a year ; but the inquiry now before you relates and 
 will be confined to the two small portions of the property I 
 have mentioned ; and the question to be tried by you will 
 have reference to the title to those two properties only. 
 
 " The present Claimant is fifty-six years of age, and comes 
 forward at this late period of his life to claim the estates of 
 his ancestors. He became entitled to the Heath House 
 Estate only in 1849, on the death of his uncle, Sir John 
 Smyth, and to the Almington or Elmington Farm on the 
 decease of his father, Sir Hugh, in 1824." 
 
 Mr. Bovill then stated at some length the pedigree of the 
 plaintiff, a summary of which has been already given, and 
 proceeded, 
 
 " The question involves as well the title to two baronet-
 
 118 TRIAL OF SMYTH V. SMYTH. 
 
 cies (a). The family of the Smyths is an old one, and 
 the title was granted for some services to the State. The 
 last baronet was Sir John Smyth, of Ashton Court, who 
 survived his brother, Sir Hugh Smyth. The estates are now 
 in the possession of the descendants of the sister of Sir Hugh 
 and of Sir John. The principal defendant is Mr. Greville 
 Smyth, who is under age, and appears by his guardian. The 
 other defendants are trustees having the management of the 
 estates. 
 
 " Supposing Sir Hugh to have died without issue, the pro- 
 perty would go to the sisters and their descendants ; but if 
 he had issue that issue would be entitled to it. We on the 
 part of the plaintiff set up that there was in fact issue of Sir 
 Hugh Smyth, and that that issue is the plaintiff. 
 
 " That Sir John was aware that his brother, Sir Hugh, had 
 left issue I shall prove by a document under his own hand, 
 and also that Sir John abstained from marrying lest his son 
 should appear and claim the estates. I shall also prove a 
 remarkable circumstance in strong confirmation of the pro- 
 bability that he did know of this son being in existence on 
 the very day on which the present Claimant first made his 
 appearance in the presence of his uncle, Sir John, Sir John 
 was so shaken in body and mind that he went home from 
 Ashton Court to Heath House, and there he stated the fact 
 of his having had an interview with the son of his dead brother, 
 and that he was satisfied he was the man whose appearance 
 he had so long expected. I shall show that he was not able 
 to eat his dinner, that he went to bed for the last time, and 
 that it had such an effect upon his mind that that night it 
 killed him. 
 
 " The Claimant's history is indeed a remarkable one. It 
 turns out that Sir Hugh Smyth, the eldest son of Thomas of 
 
 (a) This is scarcely correct. The first baronetcy was granted in 1661, 
 but it expired in 1741 for want of male heirs of the third baronet, Sir 
 John Smyth. The estates, however, descended to his sisters, one of whom 
 married a Mr. Jarrit Smyth, of Bristol, who was created a baronet in 
 1763. This would be the only baronetcy in existence at the time of the 
 trial ; and it is obvious that no descendant of Sir Hugh Smyth who 
 could only claim connection with the family of the first baronet through 
 the female line could claim to be entitled to both baronetcies.
 
 TRIAL OP SMYTH V. SMYTH. 119 
 
 Stapleton, was married in Ireland in 1796. In consequence 
 of the position in which he was placed, his father wishing 
 him to marry a Miss Wilson, daughter of the Bishop of 
 Bristol, he had kept his marriage in Ireland a secret. The 
 Smyths had family connections with the family of the Earl 
 of Bandon, and Sir Hugh went over to visit them, and then 
 and there married Miss Jane Vandenbergh, a daughter of 
 Count Vandenbergh, about whom I can give no information, 
 and who was staying with Mrs. Bernard, afterwards the 
 Countess of Bandon. 
 
 " The marriage took place on the 19th of May, 1796, at 
 the private residence of the Bandon family at Lismore. The 
 rebellion was then just breaking out in Ireland, and the 
 Countess of Bandon, the Marchioness of Bath, and Jane 
 Smyth, wife of Sir Hugh, came over to England, and took up 
 their abode in Bath, at No. 1, Royal Crescent. In January, 
 1797, the lady was confined of a child at the house of a car- 
 penter named Provis, at Warminster, where she was sent for the 
 purpose, and a suggestion has been made that the Claimant is 
 the son of Provis, but there is abundant evidence on the part of 
 the plaintiff to prove the contrary. The lady was attended in 
 her confinement by a person named Lydia Reed, but unfor- 
 tunately died shortly after her son was born, and the child 
 was left in Reed's care. It will be part of my case to 
 identify this child through all the various scenes of its life 
 down to the present day. 
 
 " A register of the marriage was made, but not in the 
 form usually followed in this country, because in Ireland at 
 that time, and until a very recent period, marriages did not 
 generally take place in a church, but all persons of any 
 condition in life were married in private houses. The 
 entries of marriages were usually made in a Bible, and I 
 shall produce the Bible in which the entry was made in this 
 case, and signed by the officiating minister, the Rev. Mr. 
 Lovett, of Lismore. I shall prove his signature, that of Sir 
 Hugh Smyth, and the signatures of the attesting witnesses, 
 and also the entry in the same Bible of the register of the 
 baptism of the child by the Rev. Mr. Symes, at No. 1, 
 Royal Crescent, Bath. 
 
 " A few months after the death of the plaintiffs mother,
 
 120 TRIAL OF SMYTH V. SMYTH. 
 
 Sir Hugh Smyth married a second time. His second wife 
 was a Miss Wilson, a daughter of the Bishop of Bristol, 
 and as Sir Hugh was still desirous of keeping the first 
 marriage a secret, the plaintiff was left at Provisos until he 
 was sent to school. When inquiries were set on foot 
 respecting the legitimacy of the plaintiff, the first document 
 that turned up, and which had been in possession of the 
 family of Lydia Reed, the nurse, was a letter written hy Sir 
 Hugh to his wife, on the day of the Claimant's birth, as 
 follows : 
 
 ' Stapleton, Feb. 2, 1797. 
 
 ' Dear Jane, The bearer is my old nurse, Lydia Read, 
 in whom I have every confidence as to her skill and attention 
 to you. Dr. Seagrim will attend you. I will endeavour to be 
 over to-morrow, and bring my mother with me. Till then, 
 God bless you, and that you may have a safe deliverance is 
 the prayer of your affectionate husband 
 
 'HUGH SMYTH. 
 ' To Mrs. Smyth, Warminster.' 
 
 " The nurse is dead, but I shall produce her niece, who has 
 nursed the Claimant when a child, and who will be able to 
 identify him. It is not that the nurse of a child can also 
 identify the man ; but I will go on to trace him through other 
 witnesses, step by step, until no link in the chain be wanting, 
 and of such strength shall that chain be that even the great 
 power and talent of my learned friends will not be able to 
 break it. 
 
 " There are two peculiar circumstances which enable the 
 witnesses to identify the Claimant one is, that his wrist 
 
 was lacerated at his birth, and the other, that the thumbs of 
 
 i ' ' 
 
 all the Smyth family turn back in a remarkable way, which 
 is peculiar to the Claimant also. 
 
 " After the Claimant's childhood he was sent to Lower 
 Court, and thence to the school of Mr. Hill, of Brislington, 
 where he was known as Richard Hugh Smyth. He was 
 next educated at Warminster School as a gentleman, and in 
 the same name, and the Marchioness of Bath, and other 
 persons of distinction more or less connected with his father
 
 TRIAL OF SMYTH V. SMYTH. 121 
 
 and mother, visited him there. From thence he went to 
 Winchester College, and there payment for his education 
 was made by one Grace, who was Sir Hugh's butler. 
 The defendants have or ought to ~have the accounts of 
 the man Grace, which will prove whether this statement 
 is true or false. The Claimant has applied for an 
 inspection of the steward's accounts, but it has been 
 refused. 
 
 " It turns out that Grace was a man on whom no reliance 
 could be placed, and on his death in 1821 his remains were 
 turned out of the house and placed in an outhouse. You will 
 naturally ask, what has this to do with the case? but I believe 
 that the fact will turn out to be that this man Grace, in 
 consequence of a severe illness which the Claimant laboured 
 under in 1814, reported him to be dead, and that Grace 
 received the money for the Claimant's education and 
 appropriated it to himself. 
 
 " When the Claimant recovered, the Marchioness of Bath 
 sent him abroad, and supplied him with a sum of money, 
 between 1400 and 1500. Sir Hugh believed that his sou 
 was dead, probably in consequence of Grace's representations, 
 but in course of time Sir Hugh considered it probable that 
 his son was still living. In 1822, Sir Hugh being seriously 
 ill, and impressed with the idea that his son, who had been 
 abroad since 1814, was still living, executed a document 
 found very recently amongst the papers of Lydia Reed, 
 which declared that his son, if he ever appeared, was entitled 
 to the estates. 
 
 " The signature of Sir Hugh to this document at first is 
 difficult of recognition, and no one would at first sight 
 believe that it was the signature of the same person who 
 signed the other documents, but this is accounted for by 
 the fact that Sir Hugh was at that time very ill, and 
 the signature appears to have been written with a very 
 trembling hand. But fortunately it does not rest simply on 
 this evidence, for the document bears the impression of the 
 Smyth coat of arms upon the seal. The defendants have 
 that seal ; let them produce it and see whether it fits the 
 wax. 
 
 " The deed is attested by the brother of Sir Hugh, whose
 
 122 TRIAL OF SMYTH V. SMYTH. 
 
 signature will be proved by James Abbott, his confidential 
 agent and steward, and by two other persons." 
 
 Mr. Bovill then read to the jury the deed in question, of 
 which the following is a copy : 
 
 " /, Sir Hugh Smyth, of Ashlon Park, in the county of 
 Somerset, and of Rockley House, in the county of Wilts, do 
 declare that in the month of May, 1796, / was married at 
 Court Macsherry, in the county of Cork, in Ireland, by the 
 Rev. Verney Lovett, to Jane, the only daughter of Count John 
 Samuel Vandenbergh, by Jane, the only daughter of Major 
 Gookin, of Court Macsherry, and Hesther, his wife. Now my 
 wife, driven from Ireland by the troubles there, came to War- 
 minster, in the county of Wilts, on the 2nd day of February, 
 1797, gave birth to a son, and she died the same day. The boy 
 was left to the care of my own nurse, Lydia Reed, who can at 
 any time identify my son by marks upon his right hand. The 
 boy was baptized at No. 1, Royal Crescent, Bath, by the 
 Rev. James Symes, curate, by the names of Richard Hugh 
 Smyth, son of Hugh Smyth, and Jane, his wife. From 
 circumstances of a family nature this boy was brought up in 
 private, and through the rascallity of my butler Grace, under 
 whose especial charge my son was, he left England clandestinely, 
 in the year 1813, and I had been assured by Grace that my 
 son had died abroad, but at the death of Grace I became 
 possessed of doubts of my son's demise. Now, under the 
 impression that my son had died, I made or executed a will 
 in the year 1814. That will I now abrogate, annul, and sett 
 asside, by this, my last will and testament, and by this docu- 
 ment do acknowledge Richard Hugh Smyth my legitimate 
 son and heir, and that he must possess, him and his heirs for 
 ever, the vast estates of my ancestors, as secured to him by the 
 will of my late excellent father, Thomas Smyth, of Stapleton ; 
 and here I implore my dearly beloved brother John to use 
 his best endeavours to secure the return of my son, and in case 
 he does return to restore to him his rights, and which I know 
 my brother will do for my sake. Further, I do desire that 
 documents do remain in the custody of my nurse, Lydia Reed, 
 and whom no doubt my son will be sure to seek. In
 
 TRIAL OF SMYTH V. SMYTH. 123 
 
 security of and in furtherance of the object of this deed) I, 
 Sir Hugh Smyth, do seal it with my seal, and sign it with 
 my name, this 27th day of January, in the year of our Lord 
 1822, in the presence of the parties whose signatures appear. 
 
 " HUGH SMYTH. (L. s.) 
 "JOHN SMYTH, 
 " WILLIAM EDWARDS, 
 "JAMES ABBOTT, 
 "WILLIAM DOBBSON." 
 
 " In the following year Sir Hugh, still anxious about his 
 son, executed another document; he was then in better 
 health, which will account for the difference between the 
 two signatures." The document is as follows : 
 
 " 7, Sir Hugh Smyth, of Ashton Park, in the county of 
 Somerset, and of Rockley House, in the county of Wilts, do 
 declare that in the year 1796 I was married, in the county of 
 Cork, in Ireland, by the Rev. Verney Lovett, to Jane, the 
 daughter of Count Vandenbergh, by Jane, the daughter of 
 Major Gookin, of Court Macsherry, near Bandon, Witnesses 
 thereto The Countess of Bandon and Consena Lovett. In* the 
 following year, Jane Smyth, my wife, came to England, and 
 immediately after giving birth to a son, she died on the 2nd 
 day of February, 1797, and she lies buried in a brick vault in 
 Warminster churchyard. My son was consigned to the care 
 of my own nurse, Lydia Reed, who can at any time identify 
 him by marks upon his right hand, but more especially by the 
 turning up of both the thumbs, an indelible mark of identity 
 in our family. My son was afterwards baptized by the Rev. 
 James Symes, of Midsomer- Norton, by the names of Richard 
 Hugh Smyth, the sponsors being the -Marchioness of Bath 
 and the Countess of Bandon, who named him Richard, after 
 her deceased brother, Richard Boyle. Through the rascallity 
 of my butler Grace, my son left England for the continent, 
 and was reported to me as having died there, but at the death 
 of Grace the truth came out that my son was alive, and that 
 he would soon return to claim his rights. Now, under the 
 impression of my son's death, I executed a will in 1814. That
 
 124 TRIAL OF SMYTH V. SMYTH. 
 
 will I do by this document declare null and void, and to all 
 intents and purposes sett asside, in all its arrangements, the 
 payment of my just debts, the provision for John, the son of the 
 late Elizabeth Howell, and to the fulfilment of all matters not 
 interfering with the rights of my heir-at-laiv. Now, to give 
 every assistance to my son, should he ever return, I do declare 
 him my legitimate son and heir to all the estates of my 
 ancestors, and which he will find amply secured to him and 
 his heirs for ever by the will of his grandfather, the late 
 Thomas Smyth, of Stapleton, Esq., and further by the will of 
 my uncle, the late Sir John Hugh Smyth, Baronet. Both those 
 wills so fully arrange for the security of the property in 
 possession or reversion, that I have now only to appoint and 
 constitute my beloved brother, John Smyth, Esq., my only 
 executor for his life, and I do by this deed place the utmost 
 confidence in my brother that he will at any future time do my 
 son justice. And I also entreat my son to cause the remains 
 of his mother to be removed to Ashton, and buried in the 
 family vault, close to my side, and to raise a monument to 
 her memory. Now in furtherance of the object of this deed, 
 I do seal with my seal, and sign it ivith my name, and in 
 the presence of witnesses, this 10th day of September, in the 
 year of our Lord, 1823. 
 
 " HUGH SMYTH. (L. s.) 
 " WILLIAM EDWARDS, 
 "WILLIAM DOBBSON, 
 " JAMES ABBOTT." 
 
 " With reference to the paragraph in the above document 
 as to the burial of Hugh Smyth's wife, it is a curious cir- 
 cumstance in the case that there is a brick vault in War- 
 minster churchyard which no one knew anything about. 
 An application has been made to the Bishop to allow the 
 vault to be opened to see if there is any coffin-plate which 
 would give any information, but permission has been refused. 
 The custody of the second deed is not so clearly made out as 
 that of the previous one, but we shall be able to trace the 
 possession of it to an attorney's clerk. Connecting one 
 thing with another the document will be found to be of 
 essential importance.
 
 TRIAL OF SMYTH V. SMYTH. 125 
 
 " From 1814 to 1826 the Claimant was on the continent. 
 He went abroad and travelled with Lord Knox, devoting him- 
 self to the subject of education. He learned a system of 
 mnemonics or artificial memory, gave a great deal of atten- 
 tion to the subject of elocution, and lectured about England 
 on his return from the continent as Doctor Smith. He 
 supposed himself to be a son of Sir Hugh, but he was also 
 aware that his appearance would give a good deal of offence to 
 those who were connected with his father, and he abstained 
 from prosecuting his claim. On his return to England in 
 1826 he found his father was dead, and he then heard that 
 Sir John Smyth was in possession of the estates. There' was 
 an illegitimate son named John, and the Claimant was under 
 the impression that this Sir John Smyth was an elder brother 
 and entitled to the estates, and he took no active steps until 
 1828, when he had stronger notions of his own rights. The 
 case rested dormant until 1849, when he went to Sir John 
 and had that extraordinary interview with him that ended in 
 his being acknowledged as the son of Sir Hugh, and caused 
 Sir John's death that very night. 
 
 "The real point for you to determine is whether the 
 plaintiff's father, Sir Hugh Smyth, was married as was 
 alleged in 1796, whether the plaintiff was born in 1797, and 
 \vhether he was the son of the late Sir Hugh. The defend- 
 ants have said they will undertake to prove the deeds of 
 1822 and 1823 to be forgeries. We defy them to the proof. 
 There are five signatures to the one and six to the other, 
 and if they are forged all these signatures must be forged 
 too." 
 
 On the conclusion of Mr. Bovill's speech the letter alleged 
 to be Sir Hugh's and written to the nurse Reed, and the 
 two deeds of the 27th January, 1822, and 10th September, 
 1823, were put in, and also a Bible containing the certificate 
 of the marriage of Sir Hugh and Miss Jane Vandenbergh, 
 and of the baptism of the plaintiff. The Bible was an old- 
 fashioiied family Bible, with the name of " John S. Vanden- 
 'beryh" on the title-page. The following are copies of both 
 the certificates : 
 
 " I certify that Hugh Smyth, Esq., son of Thomas Smyth, 
 Esq., of Stapleton, in the county of Gloucester, in England
 
 126 
 
 TRIAL OF SMYTH V. SMYTH. 
 
 by Jane, his wife, was this 19th day of May, 1796, married 
 by me to Jane, the daughter of Count John Samuel Vanden- 
 bergh, by Jane, the daughter of Major Gookin andHesther his 
 wife, of Court Macsherry, county of Cork, Ireland. 
 
 " VERNEY LOVETT, D.D., Vicar of Lismore. 
 
 " Sianedbv /"HUGH SMYTH, 
 
 V JANE VANDENBERGH. 
 " Witnesses, 
 
 " CAROLINE BERNARD, 
 " JOHN S. VANDENBERGH, 
 
 " CONSENA LOVETT." 
 
 The certificate of baptism was as follows : 
 
 "Richard Hugh Smyth, son of Hugh Smyth, Esq., and 
 Jane, his wife, born September 2nd, 1797, baptized September 
 10th, 1798, at No. I, Royal Crescent, Bath. 
 
 " J. SYMES, Clerk. 
 " CAROLINE BERNARD, 
 " ISABELLA THYNNE." 
 
 Evidence was then called to prove the authenticity of the 
 documents. The Rev. George Turner Seymour, a magistrate 
 of Somersetshire, deposed that he was acquainted with the 
 late Sir Hugh Smyth. He believed the letter written to the 
 nurse to be in Sir Hugh's handwriting, and also the signa- 
 tures to the certificates in the Bible. 
 
 The deeds of the 27th January, 1822, and 10th Sep- 
 tember, 1823, were then produced, and the witness stated 
 that he could not say the signature to the first was that of 
 Sir H. Smyth, but he believed the one to the deed of 10th 
 September, 1823, to be his. 
 
 Mr. Morris, a surgeon of Marlborough, proved that he 
 attended Sir Hugh in 1822 and 1823, the years the deeds 
 were signed. He stated Sir Hugh was always ill, and was 
 considered a nervous patient, but witness thought his illness 
 was imaginary. It was not an illness that would cause 
 tremulousness of hand. He fancied himself ill one day and 
 would be out hunting the next.
 
 TRIAL OF SMYTH V. SMYTH. 127 
 
 Mr. Kingston, of Bandon, deposed to being acquainted 
 with the Rev. Mr. Lovett. Believed the signature "Verney 
 Lovett, D.D., Vicar of Lismore," and also the whole certifi- 
 cate in the Bible produced to be his writing. Had frequently 
 seen Mr. Lovett write. 
 
 The Hon. Captain Smyth Bernard, brother to Lord 
 Bandon, spoke to having known the Rev. Mr. Lovett. His 
 grandmother, Mrs. James Bernard, was before her marriage 
 Mrs. Hester Gookin, and her maiden name was Smyth. 
 About the time of the rebellion in Ireland in 1789, the 
 Bandon family went to Bath for protection. 
 
 On cross-examination the witness said : He never knew 
 that any of his family were related to the Smyths of Ashton 
 Court. His mother's name was Catherine Henrietta, and 
 her ordinary mode of signing was C. H. Bandon. Never 
 heard of Major Gookin having a daughter, and never heard 
 the name of Vandenbergh in connection with them, nor 
 before this case. When the signature Caroline Bernard was 
 shown to him he said it could not be his mother's, as her 
 name was not Caroline. The signature in the Bible, Caroline 
 Bernard, was not his mother's, nor was the baptismal entry. 
 Had seen the person calling himself Sir Richard Smyth. 
 He sent in his card, and witness saw him. His visitor 
 wanted to know who Ms (witness's) mother was. Never heard 
 of the practice of marrying in private houses in Ireland. 
 He was obliged himself to go to church. 
 
 John Symes, son of the Rev. James Symes, proved that 
 the signature James Symes in the Bible, appended to the 
 entry of baptism, was his father's. His father was in the 
 habit of baptizing in private houses. On cross-examination 
 he admitted having been in the workhouse for eleven or 
 twelve years. A Mrs. Mattick came and took him out. She 
 said it would be a good day for him if he could come and 
 prove his father's signature. It might be 50/. a year to him. 
 Ann Symes, the granddaughter of the Rev. James Symes, 
 also spoke to her grandfather's signature. The signature in 
 the Bible, "Isabella Thynne," was also deposed to by the Hon. 
 Carolina Boyle, who knew Lady Isabella^Thynne very well, 
 as being in Lady Isabella's handwriting, and a clerk in 
 Drummond's Bank gave evidence to the same effect.
 
 128 TRIAL OF SMYTH V. SMYTH. 
 
 Several witnesses were then called to prove the signatures 
 of the different parties who had signed the two deeds of the 
 27th January, 1822, and 10th September, 1823, either as 
 principal or witnesses, which they did with some considerable 
 amount of certainty. One of them, the widow of Grace the 
 butler, on cross-examination denied the truth of the assertion 
 that her husband's remains were on the occasion of his 
 funeral treated with indignity, and asserted that Grace was 
 not in any way connected with Sir Hugh before 1801, and 
 could not therefore have had the care or in any way have 
 been concerned in the management of a son of Sir Hugh's 
 born in 1797, and two years old in 1799. The signature of 
 Wm. Dobsou to the deed of 1822 was, however, not proved 
 by the witnesses called for that purpose, but they both agreed 
 that he did not spell his name "Dobbson" with two b's as 
 in the deed. 
 
 In consequence of the extraordinary turn the case took on 
 the cross-examination of the plaintiff, it is quite unnecessary 
 to give the evidence of these witnesses in full. The whole of 
 the first day and part of the second were taken up with the 
 proof of the signatures, before the plaintiff himself, Sir 
 Richard Hugh Smyth, was put into the box. His evidence 
 was listened to with the greatest attention, and at certain 
 parts of the cross-examination the excitement in the crowded 
 court was intense. After some further introductory matter 
 had been given in evidence he was examined in chief by 
 Mr. Bovill, and stated as follows : 
 
 " My first remembrance goes back to the time when I was 
 living at Warminster, at the house of a Mr. Provis, a car- 
 penter. When I was about three years old a woman named 
 Mrs. Reed and a girl Mary Provis were living there at the 
 time. When I left Mrs. Provis, Sir Hugh's butler, Grace, 
 took me away. I did not at that time know whose son I 
 was. I did not know my mother. She died the moment I 
 was born, as I understand. 
 
 "Whilst at school at Brislington I visited old Colonel 
 Gore. I also went to Bath to No. 1 in the Royal Crescent, 
 then inhabited by the Earl of Bandon's family. I went 
 there several times, and also to another house called Lid- 
 combe in the neighbourhood. I left Brislington school in
 
 TRIAL OP SMYTH V. SMYTH. 129 
 
 about two years. I was taken to Warminster Grammar 
 School by some ladies from Longleat, the Marchioness of 
 Bath's. Many ladies came to see me from Longleat and 
 Bath at times. I have since learnt their names. The Mar- 
 chioness of Bath was one and Lady Isabella another. I 
 remained at Warminster school about two years. I then 
 went to Winchester College as a commoner under Dr. God- 
 dard. I remained there until 1810, the year Dr. Goddard 
 left. I left Winchester in consequence of what Dr. Goddard 
 said, that my bills had not been paid for the last eighteen 
 months. I went to London by the advice of Dr. Goddard 
 to the Marchioness of Bath and told her what Dr. Goddard 
 had said. She lived in Grosvenor Street. I stayed there 
 some considerable time, until her Ladyship had matured her 
 mind on the subject. I did not hear anything about my 
 family till my last interview with the Marchioness. That 
 was some little time after going to London to see her on this 
 very subject. She said Sir Hugh was my father, and advised 
 me to go to Ashton Court to see him. 
 
 "Her Ladyship stated she could not tell me anything 
 respecting my mother, but told me I should get it from the 
 Bandon family. She also told me that in the possession of 
 Mr. Davis, her steward, at Warminster, would be found the 
 Bible of my mother, pictures, and other trinkets, jewellery, 
 and things of that kind belonging to my mother. She also 
 gave me a large sum of money. The possession of the money 
 at that time took away all other thoughts, and I paid no 
 attention to her Ladyship's advice. The money was some 
 hundreds of pounds, 1400/. or 15001. It was in notes. I 
 did not go to my father's. I went to pay a visit to a lady at 
 Wycombe Abbey, the seat of Lord Carrington. I received 
 nothing from the Marchioness of Bath except the money. I 
 cannot remember the name of the lady at Wycombe Abbey. 
 I only know the house. I was there some considerable time ; 
 some three or four months ; and on my return to London the 
 Marchioness was not at home ; she had left some little time 
 after I was taken ill at the Marchioness's house in London. 
 My illness was the small-pox. I was ill a length of time ; I 
 should say eighteen months. I was removed to Parliament 
 
 K
 
 130 TRIAL OF SMYTH V. SMYTH. 
 
 Street to the care of, I think, a Dr. Williams, some time in 
 1811. I was at that house about eighteen months." 
 
 The witness then proceeded to give minute details of what 
 he recollected in his early days, from which it was to be 
 inferred that he had always been treated as a person of posi- 
 tion, and continued : 
 
 " I travelled through the whole extent of Europe after the 
 proclamation of peace. I became acquainted with Bell and 
 Lancaster, who at that time were making investigations in 
 Germany and over all the Low Countries. They gave joint 
 lectures. I cannot charge my mind whether they had 
 established their schools in England before that, or whether 
 they did it afterwards. I remember their separating on dif- 
 fering in opinion. They then returned to England in 1826, 
 and I also. On my return to England I made some inquiries 
 about my family. I heard Sir Hugh Smyth, my father, was 
 dead. I should correct myself here a little. I was not then 
 " decisive " that Sir Hugh Smyth was my father. I should 
 say that I heard Sir Hugh Smyth was dead." After relating 
 various details of his life from 1826 to 1835, from whicli it 
 appeared he had been in the habit of going about lecturing 
 upon education at schools and institutions in England and 
 Scotland, and in that manner earned his livelihood, the 
 witness proceeded : " I never at that time made any inquiry 
 for the things the Marchioness of Bath told me were with 
 Mr. Davis ; I never inquired of Mr. Davis. I learnt in 1838 
 or 1839 that Davis was dead. I then saw old Mr. Provis, 
 who was living at Frome. I had some words with him for 
 obstinately refusing to give me any information respecting 
 my mother. He said he should say nothing further. I was 
 taken away from his house at so early a period of life that he 
 never troubled himself any further. I had seen him several 
 times before. This was the last interview. He seemed to 
 draw back. I used some harsh expressions, and he struck me 
 with his stick on the head. I told him it was the last time 
 I should call upon him; he had struck me, and had no right. 
 I put him down in a chair. The words I said were, ' How dare 
 you strike me ? you could have done no more to your son/ 
 I was going away and he called me back, took me upstairs to 
 his bedroom, opened his bureau and gave me the Bible and
 
 TRIAL OF SMYTH V. SMYTH. 131 
 
 the jewellery. The large picture said to be that of my father 
 hung in the room below. He also asked me to pledge my 
 word to him that I would follow his directions. I assured 
 him I would. He then gave into my hands a bundle of 
 papers, sealed up, with directions to take them to Mr. Phelps, 
 an eminent solicitor, at Warminster. I then left him, and 
 never saw him more. I brought the Bible and jewellery 
 away without opening them. That is the Bible (produced) , 
 and this the jewellery." 
 
 Much interest was caused by the production of the jewellery. 
 The Claimant brought out a new-looking morocco case con- 
 taining a miniature portrait supposed by him to be his 
 mother's, four gold rings, and two brooches. One ring was 
 marked with the initials " J. B.," suggested to be those of 
 Jane Bernard, and one of the brooches with the words " Jane 
 Gookin " at length. It will be seen as the trial progresses 
 that the production of the latter brooch had a very decisive 
 effect on the Claimant's case. The witness continued: 
 
 " I first saw the writings in the Bible after our first visit 
 to Ireland. We went there at Christmas last. Every year 
 after the year 1838, on coming to Bristol, I made inquiries 
 about my family. I obtained no information. I asked ' How 
 is Sir John is he married ? ' ' No/ ' Then there may be a 
 chance for my family/ I had no idea he was the brother of 
 my father, but the son. At that time I had no need, and 
 made no search. In 1849, May the 19th, on a Friday, I 
 called on and saw Sir John at Ashton Court. I went there 
 alone. I saw Sir John himself, and Mrs. Way, his younger 
 sister Mary. They were going into the Court from Heath 
 House. Mrs. Way seemed rather annoyed at my intrusion, 
 and said, ' You had better go away, man ; Sir John is not in a 
 state to be seen/ I said my business was with Sir John, and 
 Sir John I would see. She went away. Sir John took me 
 to the small dining-room, half library and half dining-room. 
 I rather suppose he felt conscious of who it was. We sat 
 down. I told him as much as I could remember of my past 
 life. He appeared excessively agitated, and was thrown into 
 such a dreadful state that it was painful to behold him at that 
 time. I had never seen him before. To calm him I merely 
 said I was not come to take his title or his property; I 
 
 K 2
 
 132 TRIAL OF SMYTH V. SMYTH. 
 
 wanted a provision for my family in a suitable manner, and 
 security after his death. He made use of this remarkable 
 expression, my lord one he was always accustomed to 
 ' You are indeed the son of my dear brother/ After consi- 
 derable conversation it was agreed that I should go to Chester 
 and fetch my family, and he would make every arrangement ; 
 they should stay at Ashton Court and he would live at Heath 
 House. He gave me all the money he had, a 50/. note of 
 the Bank of England. He said he would give me a draught 
 for more if I required it, and I only regret I did not take it. 
 I imagined several times I heard a movement of some one 
 listening, and mentioned it to Sir John. He said, ' Tut, tut, 
 nonsense/ I left Bristol by the 5 o'clock train for Birming- 
 ham. On my return with my family in twelve days I called 
 on Mr. Panton, in High Street, Bristol, and the first news I 
 heard was that my uncle had been found dead in his bed. 
 The words Mr. Panton used were ' Sir, you are too late ; your 
 uncle, if it be so, was found dead in his bed the next morning/ 
 I made no remark ; I was too much confounded at the extra- 
 ordinary circumstance. When I found Sir John was dead I 
 did the best I could. I saw no chance then, and took my 
 family to Bath." 
 
 Witness then stated that from 1849 to 1851 he had gained 
 his living by lecturing and private teaching ; and that he 
 then endeavoured to attract legal firms to take up his case, 
 but without success, and proceeded, 
 
 " I went to Ireland last Christmas ; that was six months 
 after I had seen my present attorney, who went with me. I 
 had not the most distant idea we should obtain everything we 
 wanted. It so happened Providence brought everything to 
 light. On my return from Ireland I gave notices to the 
 tenants. The notices were issued in March. I assumed the 
 title of baronet by the advice of a gentleman in Bristol on 
 my seeing Mr. Stone. I had made up my mind to pursue it 
 with vigour. I was driven to it by circumstances. I took 
 up the name and arms and issued cards, expecting if I was 
 wrong I should be prosecuted and made the defendant. I 
 did this fairly and freely. I got the portrait of my father 
 (produced) two years after Provisos death, from his daughter, 
 Mrs. Heath, living at Mere, in Wilts. I received this (the
 
 TRIAL OF SMYTH V. SMYTH. 133 
 
 letter from Sir Hugh to his wife) . I could not be accurate 
 as to the time without vast recollection. It was in the 
 autumn in last year. I first saw it in my attorney's hands. 
 I saw the large parchment first. I never saw the small one 
 till now. I first saw the large parchment (the deed of 1823) 
 some time in March last. It came to me by railway from 
 London. There was a letter inclosed with it. The letter is 
 dated March the 7th, but I think I did not receive the parcel 
 till the 17th. I first heard of the small parchment of 1822 
 when my attorney spoke of it to me. I first saw this parch- 
 ment (the small one) to-day. I do not know where it came 
 from. I have a mark on my wrist made at my birth." 
 
 Cross-examined by Sir FREDERICK THESIGER. " Provis's 
 family consisted of himself only and two boyk when I lived 
 with him. His boys were John and Thomas, but I only 
 knew Thomas. The boy did not come home at night. I 
 recollect living in Provis's house at the age of three and a 
 half. I was treated with the greatest kindness, care, and 
 respect,, and wore red morocco shoes, never being without 
 them. It may be that I wore the red shoes down to the 
 time of my leaving the house. I can remember many little 
 actions of my life when I was at Provis's. I was a mis- 
 chievous child." 
 
 Sir F. THESIGER. That I can easily believe. 
 
 Witness. "I was termed the little gentleman of the 
 place, and pulled the people's shutters down, and so "on. I 
 remember the proclamation of the peace." 
 
 On being pressed for other incidents in his early life, 
 plaintiff refused to answer, and appealed to the Judge. On 
 being told he was bound to answer, he said he knew no more. 
 A number of questions were then put as to his early school 
 days, and where he spent his holidays, and some letters of his, 
 written in 1852, were then produced. In one, addressed to 
 Lady Caroline Thynne, he stated that immediately after 
 his being at Winchester, Lady Bath did him " the honour, 
 and maternal kindness," of adopting him as her protege, 
 out of the regard she had to his mother. Lady Caroline 
 Thynne answered the letter, and in a letter from the 
 Claimant to Lady Caroline in reply, he mentioned he had 
 received from Lady Bath an obituary ring of his mother's,
 
 134 TRIAL OF SMYTH V. SMYTH. 
 
 with the following inscription, " In memory of Jane, wife of 
 Hugh Smyth, Esq., married May, 1796; died February, 
 1797." The following scene then ensued : 
 
 Sir F. THESIGER. Where is that ring ? 
 
 Plaintiff. In the box. 
 
 Sir F. THESIGER. Find it, sir. 
 
 The plaintiff then took tip a case, from which he produced 
 a ring-box, but on opening it no ring was to be seen. 
 
 Sir F. THESIGER. There was not a word said about this 
 ring in the opening. 
 
 Witness, It was in that box. 
 
 Sir F. THESIGER. When did you see it last? 
 
 Witness. I do not remember. It was taken with the 
 other jewels to Ireland. 
 
 Sir F. THESIGER. Did you see it in Ireland ? 
 
 Witness. Yes. 
 
 Sir F. THESIGER.: Was that the last time you saw it ? 
 
 Witness. I have seen it since, I believe, in London. 
 
 Sir F. THESIGER. Where, in London ? 
 
 Witness. In my attorney's office. I cannot exactly say 
 when, but I have not seen it for some considerable time. 
 
 Sir F. THESIGER then referred to the letter, and asked the 
 plaintiff to spell the word " vicissitudes." This he did as 
 follows, v-i-s-i-c-i-t-u-d-e-s. He was then cross-examined 
 as to his having in some of his correspondence expressed 
 his belief that his mother's name was Lovett, and that she 
 was a companion or lady's-maid to the Marchioness, and 
 that she died at the house of Provis, the carpenter, at 
 Warminster, and was buried at Warminster in a brick vault. 
 In explanation of this, witness replied that he had been once 
 cast away at sea on coming from Scotland, and a tea chest 
 containing all his papers and valuables was lost, amongst 
 which was a sort of license for marriage in Ireland, in which 
 the name of Lovett was mentioned. In another letter he 
 stated that he had an oil likeness of Sir Hugh when young, 
 but admitted the statement to be false, and that he only 
 imagined it. The letters were only feelers. In another 
 letter produced, the witness had said he travelled over the 
 country with Lord " Nox," and in other letters he spelt the 
 name in the same manner, " Nox."
 
 TRIAL OF SMYTH V. SMYTH. 135 
 
 Sir F. THESIGER. How do you spell " rapid/' sir ? 
 
 Witness. I do not see that it is relevant to the inquiry. 
 
 Mr. Justice COLERIDGE. You must answer the question. 
 
 Plaintiff. R-a-p-p-i-d. Sir, I say there are dictionaries 
 in which the word is spelt in that manner. 
 
 Sir F. THESIGER. No doubt : edited by yourself. 
 
 Cross-examination continued. " I was eighteen in 1815. I 
 was not a prisoner under the Emperor Napoleon." Letter 
 produced, written to Mr. G. Langton, in which he said he met 
 Mr. Kknox (with two k's), and was a prisoner on parol 
 under Napoleon in 1815. On being asked to explain, 
 witness said : "When the Emperor left to go to Waterloo, I 
 left Paris and went to Belgium, and was at the ball at 
 Brussels before the battle. I was in Paris when the allied 
 armies were there. I did not mean that I was a prisoner. 
 Lord Knox might have talked of his father, and I might 
 have told him who was my father. I do not know whether 
 I did or not. There was a good deal of writing on the oil 
 likeness, as for instance, ' Hugh Smyth, Esq., son of Thomas 
 Smyth of Stapleton, in Gloucestershire, in England, who 
 married in Ireland in 1799.' I returned to England in 
 1826, having been absent about ten or eleven years. The 
 money I took lasted a long time, and I earned a good deal by 
 lecturing. In 1 826 I had an idea who my father was." 
 
 Sir F. THESIGER. How do you spell whom ? 
 
 Witness. W-h-o-m-e. I could find you dictionaries in 
 which it is so spelt. 
 
 Sir F. THESIGER. How do you spell " set aside ? " 
 
 Witness. S-e-t-t a-s-s-i-d-e. 
 
 Sir F. THESIGER. These words are so spelt four times in 
 your letters. 
 
 Witness. I spelt them with two t's and two s's from a 
 learned commentator. I have authority for so spelling. 
 I prefer spelling aside " asside." That is the way in which 
 I think it ought to be spelt. I did not make any inquiries 
 in 1826 about Grace, or the Marchioness, but I think I did 
 in 1828, of individuals in Bristol, but did not go near 
 anyone who knew me when young. I had not time, as I 
 was engaged with my lecturing, and besides, I considered it 
 useless making inquiries, as I thought Sir John was the elder
 
 136 TRIAL OF SMYTH V. SMYTH. 
 
 brother. When Provis handed me the Bible, the jewellery, 
 and the papers, he said they had been given to him by the 
 widow of Mr. Davis. I did not look into the Bible then, 
 but I noticed the inscription on the obituary ring, but it did 
 not strike me." 
 
 A letter written to Mrs. Florence Smyth was then put in, 
 in which the witness had stated he was born in 1793 or 
 1797, and one to Mr. Gore Langton, in which he said he 
 could get a copy at any time of the register of his mother's 
 burial in 1797. On being cross-examined on the latter 
 point, the witness said : " I went to Warminster in the 
 beginning of this year. I saw an entry of the burial in 
 the register when I first went. When I went the second 
 time the entry was erased. The clergyman showed me the 
 register. I will swear there was an entry of the date of 
 February, 1797, of the burial of Jane Smyth, aged sixteen. 
 I went to another village to inquire, and on my return the 
 entry was erased, and another name substituted. The second 
 time I went with my attorney, and the book was left to us 
 both for an hour together, no one else being present. I 
 knew I was born between 1793 and 1797." 
 
 Certain notices were then put in which the witness had 
 written to the tenants in Somersetshire directing them to 
 pay their rents to him, and which notices had been signed by 
 the witness " Henry Brown, for Mr. Rodham." Mr. Rodham, 
 being present, denied the authority, and the plaintiff at last 
 admitted that they had been written in a feigned hand to 
 imitate Mr. Rodham's. In these notices Somersetshire was 
 spelt Sommersetshire. The Bible, portrait of Sir Hugh, 
 letters, jewellery, &c., were then handed up and carefully 
 examined by his lordship and the jury. The letters of the 
 plaintiff showed repeated instances of the wrong doubling of 
 consonants in the middle of words, such as " rascallity," 
 " asside," &c. On the back of the portrait of Sir Hugh was 
 discovered, in the course of examination by the judge, the 
 words " Born 14 May, 1774; married 1796." The cross- 
 examination was then continued on several minor points, in 
 the course of which numerous instances of prevarication 
 were brought out by Sir Frederick, and several direct un- 
 truths, as for instance, that the plaintiff had been presented
 
 TRIAL OF SMYTH V. SMYTH. 137 
 
 to Her Majesty ; and the court adjourned until the following 
 day. 
 
 On the opening of the court the next morning 
 Sir F. Thesiger resumed his cross-examination of the plain- 
 tiff. The witness denied that he had said in his examination in 
 chief that he had spent his holidays twice at Lord Carring- 
 ton's, hut on the judge referring to his notes it was found 
 he had done so, though, as his lordship said, it might have 
 been under a mistake. He then proceeded to state his 
 answer to Sir Frederick. 
 
 " Early in life I spelt my name Smyth, but I afterwards 
 spelt it ' Smith/ because when I spelt it so I was taken for 
 an Irishman. I signed it Smith as late as July, 1852. I 
 do not know how to spell ' scrutiny.' The motto of the Car- 
 rington family was tenax et fides (it is really tenax et fidelis). 
 I should say tenax is firm and fides faith, and that the motto 
 means f firm in faith,' though it may be rendered different 
 ways. I have said that the motto of the Smyth family is 
 ' Qui capit capitur.' " Witness denied having ever represented 
 himself as Thomas Provis or William Thomas Provis, or that 
 John Provis was his father, or ever called him his father, or 
 was called by him his son. Never took an inventory of 
 John Provis's goods. An inventory was here handed up to 
 the witness, and he was asked if it was in his handwriting. 
 He said he would not swear to it ; he thought it was in John 
 Provis's handwriting. On being pressed he said he had helped 
 the old gentleman with his books, and it might be in his 
 (witness's) handwriting. He then recollected he might ven- 
 ture to say he had written it. An entry in it was pointed 
 out, " Picture of Provis's son John." The old man, witness 
 admitted, used to call it the portrait of his son. It was 
 the same painting that now had the writing on the back, 
 "Hugh Smyth, Esq., son of Thomas Smyth, Esq., of Sta- 
 pleton, Gloucestershire, 1796." The picture was produced, 
 and after a request from the plaintiff that all the wit- 
 nesses who were to depose to anything respecting it should 
 leave the court, which, after some discussion, was acceded 
 to, was put in. The plaintiff then admitted it was the 
 same picture as was mentioned in the inventory as 
 " Painting of son John," but "should not think it was
 
 138 TRIAL OF SMYTH V. SMYTH. 
 
 the picture spoken of in his letters to Mrs. Smyth, 
 Mrs. Upton, and Mr. Gore Langton as the portrait of his 
 father." The letters were then read, in which it was stated 
 that this was the picture, and Sir Frederick pointed out to 
 the witness that there were two erasures on the back of it, 
 whereupon he admitted that it was the picture lie had referred 
 to, and that there was no other picture of Sir Hugh. The 
 writing on the back was not in same condition now as it was 
 at first, as he had put an acid on and had brought it out. 
 It was tartaric acid he used ; he applied it lightly, and it 
 merely took off the dirt. Had used water with no effect. 
 That was the reason he had ordered the witnesses out of 
 court, because he knew they would swear they had never 
 seen the inscription. He was not sure it was tartaric acid 
 or soda he used. Tartaric acid, if applied in strong solution 
 would destroy the writing. This was his first experiment. 
 He knew of it by reading, as Sir Frederick ought to do. 
 
 Sir FREDERICK. Aye ! but I do not want to bring out 
 writings. 
 
 Witness. But you bring out other things, and with con- 
 siderable acidity. The acid was found in the back kitchen. 
 Most people had soda and potash in their houses. 
 
 Sir F. THESIGER. They are not acids. 
 
 Witness. They are pulverized minerals. 
 
 Cross-examination resumed : Had said the inventory was 
 certainly not in his handwriting, and he had not sworn it 
 was. Now, however, he looked at it again he would swear 
 it was his handwriting. The words " Painting of son John" 
 referred to the picture. Did not know whose portrait it was, 
 but knew it could not be his son John who died in his in- 
 fancy. Witness was a married man, and married in 1841. 
 Was not married in 1814 at Bath to Mary Ann Whittick. 
 His present wife's maiden name was Ashton, and he had no 
 past wife. Slightly knew a person named Charles Ingram. 
 He did not claim to be a nephew of the plaintiff. Again 
 repeated his denial that he did not marry Mary Ann 
 Whittick at St. Michael's, Bath, at a quarter to nine on 
 Sunday the 9th October, 1814, in the name of William 
 Thomas Provis. Mary Ann Heath, then a girl of twelve, 
 was not present. Did not meet Mary Ann Heath twenty
 
 TRIAL OF SMYTH V. SMYTH. 139 
 
 years ago, when she said, " Tom, how are you ? " Did not 
 say that he was then Dr. Smith. He took two of Mrs. Heath's 
 children to place out in the world, not to educate. He took 
 them out of kindness, and was treated with downright in- 
 gratitude, but it would all come out. 
 
 Sir F. THESIGER. It is coming out now very fast ! 
 
 The cross-examination was then directed to the purchase 
 of some seals from an engraver in London, named Moring. 
 
 " I did not order any seals of Moring, seal engraver of 
 Holborn, in December, 1852. It was in March, 1853. It 
 was not before Christmas. The cards were had on the 21st 
 December/' The bill was produced, and in it was found on 
 the same date a charge for engraving a steel seal, but the 
 witness denied it was had at the same time. " I did not on 
 the 19th December call on Mr. Moring and order a steel 
 seal to be made of the pattern and size of the one which I 
 brought, and on which were engraved an elephant's head, 
 crest, and garter, and direct the crest, motto, and garter of 
 the Smyths, of Ashton Court, to be engraved on it. I 
 ordered it afterwards. I got the crest from the letter which 
 was in my possession from Joseph Heed. The letter pro- 
 duced is the one I took. I swear I showed it to him, and he 
 took the impression from it whilst I was looking for the 
 explanation of the motto. I called for the seal in the 
 beginning of March. (The seal was here produced.) I 
 afterwards sent an order for a seal with the arms, crest, and 
 motto of the Smyths, of Ashton Court, upon it. The order 
 was executed, and the seal sent addressed to me at St. Vin- 
 cent's Priory, Clifton. (The second seal was then produced.) 
 I was living in St. Vincent's Priory when the parchment was 
 sent. I do not know Crane, who wrote the letter accom- 
 panying the parchment of 1823. I have since ascertained 
 that my wife opened the parcel, and so a different paper 
 became the wrapper. I discovered an error in the motto of 
 the second seal ; that on the first was correct, ' Qui capit 
 capitur,' but I did not discover the second was capitor. The 
 second seal was taken from the document of 1823, the only 
 one I had. Moring had sent to me a penned resemblance of 
 the shield, and it was in the shape of a heart. I wrote 
 back or scut through Nash the stamp on that document.
 
 140 TRIAL OF SMYTH V. SMYTH. 
 
 When I had the document the seal was whole, but I rubbed 
 a piece of silver paper on it to get a facsimile, and in doing 
 so I broke the seal. The rubbing I sent to Moring some 
 time just before June in this year, or May. I got the seal, 
 I think, the 7th of June. I had correspondence with 
 Mr. Bennett, of Ballinadee, to get specimens of Mr. Verney 
 Lovett's writing. I have two which were given to my attorney." 
 (Note to Mr. Bennett read, stating that he had the certifi- 
 cate of his mother's marriage and wanted specimens of 
 Mr. Lovett's writing. He had several livings on the estates, 
 the incumbents of which were very old, and he would serve 
 Mr. Bennett if he would oblige him with what he required. This 
 was dated 13th March, 1853. Upon the envelope was the 
 motto " Qui capit capitor" which was on the seal he said 
 he did not have till 7th June.) In explanation of this, wit- 
 ness said : " It must be a mistake of the engraver ; he 
 should make out his bill better and not lead me astray with 
 wrong dates. I could not have had the seal long before I 
 wrote to the Rev. Mr. Bennett. After I received the deed 
 on the 17th March, I sent the impression to Mr. Moring. 
 He was not long executing it. I do not know when I made 
 the impression with the silver paper." 
 
 Sir F. Thesiger then asked how it was that he sealed a let- 
 ter, dated the 1 3th March, with a seal made from a document 
 which he did not see until the 17th. The plaintiff in 
 explanation said Sir Frederick had explained it he must 
 have received the seal before the 13th. Sir F. Thesiger then 
 asked how he could account for receiving the seal before he 
 received the document; and the plaintiff replied he could 
 not tell he could not explain, and asked to be allowed to 
 retire. 
 
 Sir FREDERICK. That cannot be. My lord (addressing 
 the court) I have just had a telegraphic message from London 
 of the greatest importance. Sir Frederick then read from 
 the message to the witness " Did you on the 19th of 
 January last apply to a person at 361, Oxford Street to 
 engrave the ring with the Bandon crest, and the brooch with 
 the words Jane Gookin?' 1 
 
 Witness. " I did, sir." 
 
 The excitement in court at this unexpected avowal was
 
 TRIAL OF SMYTH V. SMYTH. 141 
 
 intense. Sir Frederick himself sat down, and was so much 
 affected as to be quite unable to proceed, or even to repeat 
 the question. Mr. Bovill was also deeply moved. Mr. Alex- 
 ander then repeated to the court, at the request of the judge, 
 the question asked of the witness, Sir Frederick being quite 
 unable to do so. The ring and brooch were then produced, 
 and admitted by the plaintiff to be the ones referred 
 to. Hitherto he had faced all the previous questions ; but 
 at this stage of the case he appeared cowed and crest- 
 fallen. 
 
 Sir F. THESIGER, to witness. After this exhibition I can- 
 not spare you. You said yesterday that in the year 1811 
 you were ill for eighteen months with a medical man in 
 Parliament Street a Dr. Williams. 
 
 Plaintiff. I did not say it was Dr. Williams. 
 
 Sir F. THESIGER. Upon your oath, sir, were you not 
 during that eighteen months in prison under a conviction for 
 horse-stealing ? 
 
 Plaintiff. No, sir. 
 
 Sir F. THESIGER. In Ilchester Gaol ? 
 
 Plaintiff. No, I was not. 
 
 Sir F. THESIGER. Were you not sentenced to death under 
 the name of Thomas Provis for stealing a gelding, the goods 
 and chattels of George Sladden ; and was not your sentence 
 commuted to eighteen months' imprisonment, in consideration 
 of your youth ? 
 
 Plaintiff. It was not I ; it must be some other person. 
 
 Sir F. THESIGER. Have you got the marks of the king's- 
 evil on your neck, and also on your right hand ? 
 
 The witness hesitated, and at last bared neck and hand, 
 and there the marks were apparent. Those on the right hand 
 were the marks which he had said were inflicted in child- 
 birth, and which he represented in the deed as the indelible 
 marks of identity in the Smyth family. The* sensation in 
 court was intense. 
 
 Sir F. Thesiger then drew attention to the fact that the 
 motto on the deed of 1823 was " Qui capit capitor." The 
 jury here examined the deed and intimated that it was so. 
 
 His lordship thereupon appealed to Mr. Bovill whether he 
 meant to go on.
 
 142 TRIAL OF SMYTH V. SMYTH. 
 
 Mr. BOVILL. <( I must say that the progress of this cause 
 has been the most painful I ever knew. At this moment I 
 can scarcely speak, owing to the emotion I see prevail in 
 every part of the court at this appalling exhibition. I and 
 my learned friends have considered our position most 
 anxiously ; first, in reference to the plaintiff; next, in reference 
 to the solicitor who instructed us ; and thirdly, in reference 
 to what is due to ourselves as gentlemen and members of the 
 bar. From the great importance of this case and the extra- 
 ordinary interest attached to it, we have felt that we could not 
 consistently with our duty interpose during the cross-exami- 
 nation which has taken place. We felt it our duty not to 
 make a single remark till the cross-examination should draw 
 to a close. After this most appalling exhibition, and this 
 exposure so unparalleled in a court of justice, which has 
 come on us all by surprise, it would be impossible for us to 
 appear further in a case of this description." 
 
 Application was then made to the court by Sir F. Tbesiger 
 that the plaintiff should not be permitted to go at large, and 
 he was accordingly taken into custody on a charge of perjury. 
 The jury then returned a verdict for the defendant, and the 
 extraordinary case came to an end. 
 
 Mr. Justice Coleridge, before the court broke up, very 
 gracefully intimated his opinion that the plaintiff had suffered 
 nothing from the absence of Sir F. Kelly or Mr. Keating, 
 who, the learned judge observed, could not possibly have 
 done anything more than what had been done for the 
 Claimant by his present counsel, except that perhaps they 
 might have retired earlier from the case. This intimation of 
 opinion was most cordially joined in by the bar and the 
 audience generally, and seemed to give universal satisfaction. 
 Seldom indeed have counsel been placed in a more unfor- 
 tunate position than were Mr. Bovill and his learned colleagues 
 on this occasion. 
 
 All trinkets, deeds, &c., were then impounded ; and in the 
 course of the day the plaintiff was taken before a magistrate 
 and committed for trial on a charge of forgery.
 
 TRIAL OF SMYTH V. SMYTH. 143 
 
 With the committal of the plaintiff to take his trial for 
 forgery and perjury ended of course all his pretensions to 
 the title of " Sir Richard Hugh Smyth, Baronet/' and the 
 Ashton estates ; though with singular effrontery he still 
 continued to assert he was the real man, and even went so 
 far as to assign over his estates to prevent a forfeiture. The 
 subsequent proceedings are interesting as disclosing the 
 manner in which the claim had been concocted, and the nature 
 of the evidence the defendant would have brought forward if 
 the case for the Claimant had proceeded further. They form 
 a fitting sequel to the previous trial. 
 
 At the next assizes for Gloucester in April, 1854, the late 
 plaintiff, still under the assumed name of " Richard Hugh 
 Smyth," was accordingly indicted for forging a codicil to the 
 will of Sir Hugh Smyth with intent to defraud, and with 
 uttering the same knowing it to be forged, to w r hich he 
 pleaded not guilty. 
 
 Mr. Alexander, on the part of the prosecution, stated the 
 circumstances under which the previous action had been 
 brought, and its termination in the committal of the plaintiff 
 to take his trial for perjury and forgery ; and the shorthand 
 notes of the plaintiff's examination in chief and cross-exa- 
 mination having been read, Mr. Moring, a seal engraver of 
 Holborn, was called. He deposed that in December, 1852 
 (only a few months before the trial), he had been employed 
 by the prisoner to engrave a crest, garter, and motto on a 
 seal, from a pattern which the prisoner furnished him with. 
 The proper motto was " Qui capit capitur" but the " u " 
 being blotted an error was made in the engraving, and the 
 motto was made to read " Qui capit capitor." He also made 
 a second seal at the request of the prisoner, with the arms 
 of the Smyths of Ashton Court, in which the same error 
 arose. The seal on the document purporting to be the will 
 of Sir Hugh Smyth was made with this second seal, as also 
 the seal on the letter from Sir Hugh to his pretended wife. 
 He further proved that there had been an alteration in the 
 mode of engraving seals within the last four or five years, 
 and the seals on the will had been engraved in the new 
 manner. The prisoner had subsequently called upon him 
 and desired he would not give any information about the
 
 144 TRIAL OF SMYTH V. SMYTH. 
 
 seals. Another witness, a seal engraver, corroborated the 
 evidence as to the seal on the will having been made with 
 the seal engraved by Mr. Moring, and also as to the new 
 mode of engraving. 
 
 Mr. Robert Cox, a jeweller, of No. 351, Oxford Street, 
 London, through whose instrumentality the plaintiff had 
 been so effectually confounded on the third day of the trial, 
 proved that on the 5th January, 1853, the prisoner came to 
 his shop and said he was trustee of some children, and had 
 had the care of some jewels which he had lost; but the 
 jewels had been asked for, and he was desirous of buying 
 some others in their place. As the children had never seen 
 the originals the prisoner said the new ones would do just 
 as well. He also asked for a miniature or miniature frame, 
 which he said he should wish to pass off as that of the mother 
 of the children. He selected two brooches and a wedding 
 and a mourning ring. The engraving on the mourning ring, 
 "Mary, wife of Sir Hugh Smyth, m. 1796, d. 1797," was 
 done by order of the prisoner. On one of the brooches the 
 name "Jane Gookin" was engraved, also by his order, 
 and on the signet ring the Bandon crest. The witness 
 deposed that it was by casually reading a report of the pro- 
 ceedings of the first day's trial in the Times newspaper that 
 he had been led to communicate with the defence at the last 
 trial. 
 
 A bookseller living next door to Mr. Moring deposed that 
 he purchased the Bible in which the certificates of marriage 
 and baptism were written, and on the title-page of which 
 were the words " John S. Vandenbergh," from a gentleman 
 of that name, and sold it in February, 1853, to the prisoner. 
 Mr. Vandenbergh, who sold the Bible, corroborated this 
 evidence, and stated the Bible was his deceased father's, and 
 the words " John S. Vandenbergh" on the title-page in 
 his father's handwriting. 
 
 So much for the authenticity of the documents and 
 jewellery on which the prisoner had founded his claim ! The 
 sister of the prisoner was then called, who deposed he was 
 her brother, that he had been married in 1814, in her pre- 
 sence, to Mary Ann Whittick, at Bath (which the prisoner 
 had denied at the trial), and that the picture put forward by
 
 TRIAL OP SMYTH V. SMYTH. 145 
 
 the prisoner as that of Sir Hugh Smyth was the portrait of 
 her brother John ! 
 
 Mr. Herepath, the celebrated chemist, proved that the ink 
 on the two parchments was not nearly so old as 1822, and 
 the ink in the letter from Sir Hugh to his supposed wife was 
 modern, and had not been made two years. On the Bible 
 being shown him, he said the signature " John S. Vandeii- 
 bergh " on the title-page was written with old ink, but the 
 certificates with ink of quite a modern date. Mr. Gough, a 
 parchment maker, proved that the parchment on which one 
 of the wills was written was made on a new process, only 
 invented within the last ten or fifteen years, though the 
 larger deed was older. 
 
 A witness of the name of Crane then gave some evidence 
 showing an audacity on the part of the prisoner almost 
 incredible. He said he went to call at St. Vincent's Priory 
 about April in the preceding year, where he saw the prisoner, 
 who told him he was the lawful heir to the Smyth family. 
 That the prisoner said to witness, " I want you to write a 
 letter, that is if you can do so convenient. It will put you 
 in business or a situation for life." He then showed witness 
 a will on parchment, and said, " I want you to write a letter 
 stating that a man named Coward lodged in your house, that 
 he was out of his head, and left, and died in an asylum you. 
 don't know where." Another person of the name of Mat- 
 tick was present, and on the witness intimating that he did 
 not know how to put it together, the prisoner said, looking 
 at them both, ' ' Come ! can't you two do it ; I have told you 
 what to say." Witness then went down-stairs and wrote 
 the letter, which he gave to the prisoner. He never knew a 
 person called Coward. The witness identified the will as the 
 one the prisoner showed him, only at that time there was no 
 seal on it. 
 
 Some further evidence was then given proving the identity 
 of the Claimant with Thomas Provis, and a Bible was pro- 
 duced in which was an entry of the prisoner's marriage with 
 Mary Ann Whittick in his own handwriting. It is quite 
 unnecessary to reproduce all the evidence given on these and 
 other minor points, all tending most conclusively to establish 
 the prisoner's guilt. He cross-examined some of the wit- 
 
 L
 
 146 TRIAL OF SMYTH V. SMYTH. 
 
 nesses with considerable smartness and flippancy, and elicited 
 that the defence had cost the Smyth family between 6000/. 
 and 7000/., which seemed to give him not a little satisfac- 
 tion. In his defence he made a long rambling speech, 
 raising what he deemed to be a point of law that a man 
 could not be convicted of forging the name of a person who 
 was dead. This objection the judge, Mr. Russell Gurney, who, 
 in consequence of the sudden death of Mr. Justice Talfourd, 
 was presiding at the trial, overruled, and the jury after a few 
 minutes' deliberation returned a verdict of guilty both of 
 forgery and of the uttering, and the prisoner then received 
 the well-merited sentence of twenty years' transportation (a) . 
 
 (a) At the same assizes at which the Claimant was tried for forgery, 
 a person of the name of Castro was also put on his trial, a somewhat 
 singular coincidence, bearing in mind the cause celebre now pending.
 
 THE TRIAL 
 
 THE EEV. WILLIAM BAILEY, LL.D., 
 
 FOR FOEGERY, 
 BEFOBE MR. JUSTICE WILLIAMS AND ME. JUSTICE MAULE, 
 
 AT THE CENTRAL CRIMINAL COURT, 
 February 1st, 1843. 
 
 Counsel for the Prosecution : Mr. Hum/rey. 
 For the Prisoner : Mr. Clarkson and Mr. Jones. 
 
 INTRODUCTION. 
 
 IT has been observed by a learned writer of considerable 
 experience in criminal matters (a) ' ' that of late years there 
 has been a marked increase in all crimes requiring superior 
 intelligence rather than brute force for their successful 
 accomplishment, and which can only be effected by the mis- 
 applied union of talent and education. The abolition of the 
 punishment of death for all crimes against property/' the 
 writer argues, "may have tempted persons of comparative 
 refinement, of cool head and callous heart, to adventure on 
 forbidden ways of enriching themselves at the expense of their 
 neighbours when failure and detection would not involve their 
 personal safety/' Amongst this class of crimes of modern 
 date are to be numbered the case of Alexander Alexander, 
 titular Earl of Stirling; the forgeries arising out of the 
 unclaimed dividends in the Bank of England, a scheme 
 remarkable for its ingenuity in the discovery and punishment 
 
 (a) Mr. Townsend, Q. C., Recorder of Macclesfield, in his " Modern 
 State Trials," vol. 1, p. 404. 
 
 L2
 
 148 TRIAL OF THE REV. WILLIAM BAILEY. 
 
 of which, however, one innocent person was unfortunately 
 involved ; the case of Provis, already reported in this volume ; 
 the case of the gold-dust robbery, tried in the year 1857, where 
 Agar with his 3000, and Pierce with his house at Kilburn, 
 both lodging at fashionable watering-places, and journeying 
 up and down the South Eastern Kailway with first-class 
 tickets, form a picture of criminal enterprise hardly to be 
 looked for : and the case of the Rev. William Bailey, now 
 under consideration. 
 
 The circumstances out of which this latter case arose are 
 the most extraordinary. In the year 1841 there died at 
 No. 12, Great St. Andrew Street, Seven Dials, a man of the 
 name of Robert Smith, a person of the most penurious habits, 
 and so dirty and mean in appearance as to cause him fre- 
 quently to be taken for a beggar. He was, however, a person 
 of considerable means, though at his death his fortune was 
 greatly exaggerated, as were also several circumstances con- 
 nected with him, such as, for instance, that he could scarcely 
 write his name, and had left no relations. Probably it was 
 this latter report, coupled with the rumour of his great 
 wealth, that excited the cupidity of Dr. Bailey, then a 
 fashionable preacher of some celebrity, and minister of 
 St. Peter's Chapel, Queen's Square, Westminster. Accord- 
 ingly, shortly after Smith's death, his administrator received 
 notice of a claim made by Dr. Bailey on behalf of his sister, 
 for moneys alleged to have been paid to Smith for investment, 
 amounting in the whole to 28751. The administrator could 
 find no trace of any transactions with Dr. Bailey in the 
 deceased's books, and he therefore denied his liability, and 
 left Dr. Bailey to take such steps to recover the amount as he 
 might be advised. 
 
 Dr. Bailey, nothing daunted by the rejection of his claim, 
 commenced an action to recover the amount alleged to be 
 due, which came on for trial in the Common Pleas, before 
 Chief Justice Tindal, on the 9th July, 1842. The action 
 was most vigorously fought, and most vigorously defended. 
 Mr. Serjeant Channell and Mr. Hayward were for the 
 plaintiff, and Sir T. Wilde, Mr. Serjeant Talfourd, Mr. Kelly 
 (now Chief Baron of the Exchequer) , and Mr. Humfrey, for 
 the defendants. The case opened on behalf of the plaintiff
 
 TRIAL OF THE REV. WILLIAM BAILEY. 149 
 
 was to the effect that Miss Bailey, the doctor's sister, in 
 November, 1838, sent over from Ireland a sum of money to her 
 brother for investment in English government securities : that 
 Smith, with whom the plaintiff alleged himself to be on inti- 
 mate terms, advised him not to invest it in the funds, but in 
 the purchase of a rentcharge, and stated that until invest- 
 ment he would himself be Miss Bailey's banker : that 
 Dr. Bailey accordingly gave Smith 550/. and other sums 
 which his sister transmitted for investment from time to time, 
 for which Smith gave his I. O. U. : that afterwards, on the 
 12th August, 1841, on a settlement of accounts between the 
 plaintiff and Smith, Dr. Bailey pressed for some security, and 
 that on that day, in the vestry-room of the chapel in Queen's 
 Square, shortly before evening service, Smith gave the plain- 
 tiff an I. O. U. for the whole amount due, 28751. The doctor, 
 it was stated, objected that the security was only an I. O. U., 
 and said nothing about interest ; whereupon Smith replied, 
 " Never mind ; do you and Mr. Nixon " (a clergyman then 
 officiating for Dr. Bailey, and in the vestry at the time) " put 
 your names to it as witnesses and it will be all right." 
 Dr. Bailey and Mr. Nixon did accordingly sign their names 
 as witnesses, and Mr. Smith then went out of the vestry 
 into the chapel, where he remained all the service. 
 
 Such is a short outline of the extraordinary case attempted 
 to be set up by the plaintiff. In addition he asserted that 
 not being satisfied with the I. O. U. he pressed Smith for a 
 mortgage, which the latter positively refused to give, but 
 asked the plaintiff to draw up a promissory note, which he 
 said he would sign, and also a letter to Miss Bailey, promising, 
 if she required it, to give a bond or warrant of attorney as a 
 further security. This note and letter were accordingly 
 drawn up and signed by the deceased. 
 
 In support of the plaintiff's case a Mrs. Ellen Grey was 
 called as a witness, who deposed that she happened to be in 
 the vestry-room on the evening of Thursday the 12th of 
 August, and saw Smith hand a piece of paper to Dr. Bailey, 
 who said, " I do not like this." The paper was read over in 
 her presence when she was reading her Prayer Book, but she 
 was not so absorbed in her book as not to hear the words 
 " two thousand and odd pounds," which excited her curiosity,
 
 150 TRIAL OF THE REV. WILLIAM BAILEY. 
 
 as she thought it strange that Smith, an emaciated, dirty- 
 looking old man, should have so much money. She afterwards 
 was shown into the same pew with Smith, and when the 
 service was concluded went out with him, and on her way 
 home asked Avhat the money meant. Smith said it was 
 Miss Bailey's, and " it was well he had it, as she would have 
 fooled it away." This witness was corroborated by a female 
 servant of the plaintiff, Caroline Laxton, who said that on 
 the 1st January, 1841, whilst she was mending the carpet in 
 the back drawing-room of Dr. Bailey's house, when Smith 
 and Dr. Bailey were in the front room, she heard Smith say, 
 " 3001. more and it will make up a round sum of 3000/. ;" 
 and in cross-examination she even went further, and said 
 she saw through the folding-doors bank notes pass from 
 Dr. Bailey to Smith. The plaintiff himself stepped into the 
 box, and in the boldest manner produced an account book, 
 in which all the loans were entered up, with the dates of the 
 respective advances. No account was, however, given of the 
 manner in which Miss Bailey became possessed of the money, 
 nor was she called as a witness. The plaintiff himself said 
 he had handed the money to Smith in notes as he received 
 it Irish notes but it was conclusively shown that Irish 
 notes were subject at that time to an exchange of II. per 
 cent., which rendered it extremely unlikely that Smith, who 
 was a miserly old fellow, would have accepted the money in 
 that shape. Eventually the case broke down, and the jury 
 returned a verdict for the defendants ; and the notes and 
 documents on which the claim was based were ordered to be 
 impounded. The plaintiff himself was allowed in the first 
 instance to go at large, but ultimately on the 23rd November 
 he was arrested at his dwelling-house, 73, Coleshill Street, 
 Pimlico, on a charge of forgery. 
 
 The indictment charged the prisoner with feloniously 
 forging, on the 9th September, 1841, at the parish of St. Mar- 
 garet, Westminster, a promissory note for the payment of 
 2875/., with intent to defraud Robert Smith, since deceased. 
 A second count charged the same offence, but with intent to 
 defraud James Smith, the administrator of the deceased, and
 
 TRIAL OF THE REV. WILLIAM BAILEY. 151 
 
 other counts charged the prisoner with uttering and putting 
 off the notes in question. 
 
 Mr. Humfrey opened the case on behalf of the prosecu- 
 tion, and stated the facts in outline as given in the Introduc- 
 tion. Mr. Wheatley, the deputy associate of the Lord Chief 
 Justice, then deposed that he was present at the trial of 
 " Bailey v. Smith" at the sittings after the previous Trinity 
 Term, when certain documents were ordered to be impounded, 
 which he produced ; they consisted of a promissory note for 
 28751. , an I. O. U. for the same amount, a letter, and a cash 
 book. The shorthand writer's notes of the prisoner's evi- 
 dence were then verified and read, as follows : 
 
 " I am a member of the Established Church, and a graduate 
 of Trinity College, Dublin. My father resided at Belfast. 
 I knew the late Mr. R. Smith for some years since the 
 year 1832, when I first came to London. He then lent me 
 60/., which I subsequently repaid. I then left London, and 
 did not return for some years. In 1833 I was employed by 
 my sister to invest a sum of money for her, and I spoke to 
 Mr. Smith on the subject, and he consented to take the 
 amount. I gave him at different times sums amounting 
 to 28757., for which he was to pay four per cent. The last 
 payment I made to him was for the sum of 175/., on the 
 12th August, 1841, when a settlement took place according 
 to the account book produced. On that occasion I asked 
 for some security, and he said he would give my sister good 
 security, but he did not do so at the time. He, however, 
 said he should be at my chapel that evening, and would give 
 me the security. On that evening he attended the chapel, 
 and just before service commenced, came to me in the vestry 
 and gave me an I. O. U"., at the same time saying he had 
 been disappointed with respect to the security he intended to 
 give. I expressed my disappointment at the document not 
 mentioning the interest to be at four per cent, as agreed 
 upon in the morning, and I think I also felt disappointed 
 that he did not give me the bond as promised. All the con- 
 versation took place in my vestry five minutes before the 
 service commenced. Mr. Smith said it would add validity to 
 the security if the gentleman who was to preach for me that 
 evening would add his signature to the document, and that
 
 152 TRIAL OF THE REV. WILLIAM BAILEY. 
 
 gentleman, the Rev. Mr. Nixon, did so. I also signed it as 
 an attesting witness. A few days after that I again saw 
 Mr. Smith on the subject, and applied for a bond, but he 
 made some excuse at the time, and promised to give me a 
 note of hand for the amount. On the morning of the 9th 
 September, Mr. Smith called at my house and brought a 
 stamp with him upon which the promissory note was drawn, 
 and at his particular desire I added the words ' with interest 
 at the rate of four per cent, per annum for money advanced 
 to me this day/ I signed the note as a witness, and asked 
 Mr. Smith whether I should get some other person to witness 
 it, but he said ' No, I do not wish to have my affairs made 
 public/ and therefore another witness was dispensed with. 
 Subsequently I applied to Mr. Smith for a bond, and 
 he refused to give one, but consented to sign a letter 
 promising to give one if required. I accordingly wrote a 
 letter to that effect, which Mr. Smith signed and addressed 
 to my sister. Mr. Smith was not a constant attendant at 
 my chapel, but only came occasionally. The Rev. Mr. Nixon 
 has since died. I afterwards applied to Mr. Smith for a 
 mortgage, but he became very angry and said he would rather 
 throw up the money than be bothered with a mortgage." 
 
 After the reading of the evidence given by Dr. Bailey, 
 Mr. Beilby, a most important witness on the part of the 
 prosecution, was called. He said : " I am a builder, and 
 reside in Little Queen Street, Holborn. I was acquainted 
 with the late Mr. Robert Smith for about thirty years. 
 Shortly after his death I recollect the prisoner calling at my 
 house. He said, ' You have heard about the death of the miser 
 in St. Giles/ I said I had, and had buried him. The prisoner 
 said he understood he was worth 400,0007. and could not 
 write his name. I said that was incorrect, as I had plenty 
 of his handwriting. The prisoner said he should very much 
 like to see the deceased's handwriting, and I showed him a 
 receipt written by him. The prisoner said it was a great 
 curiosity, and he should very much like to show it to a friend, 
 and I allowed him to take it away. The receipt produced is 
 the same. The prisoner kept it two or three days. I do not 
 believe the promissory note to be written by the deceased, 
 nor the I. O. U."
 
 TRIAL OF THE REV. WILLIAM BAILEY. 153 
 
 On cross-examination by Mr. Clarkson, the witness said 
 the signature to the promissory note was very much like the 
 writing of the deceased ; but if a cheque were presented to him 
 with such a signature he should not cash it. The signature to 
 the I. O. U. was not in the least like the deceased's hand- 
 writing. It was not even an imitation of it further than that 
 the number of letters in the name was the same. 
 
 Mr. James Robert Baker, a stock-broker, proved having 
 acted for the deceased for the last nine or ten years of his 
 life, and that he had 15,000/. worth of stock at his death. 
 He did not believe the signatures to the promissory note or 
 I. O. U. to- be genuine. The evidence of this witness as to 
 the handwriting was also corroborated by another witness, 
 Mr. J. W. Wilkin. 
 
 Mr. William Heirons, a carpenter and builder, proved 
 that on the 12th of August, 1841, which was his (witness's) 
 birthday, the deceased came to some houses witness was 
 building for him in Stanhope Terrace, Mornington Crescent, 
 at about ten minutes to seven in the evening, and remained 
 there until nine o'clock [between these hours the I. O. U. 
 was alleged to have been signed by the deceased in the 
 vestry] ; and during the whole of that time the deceased 
 never left his company. 
 
 On cross-examination this witness said he had gone to 
 Stanhope Terrace to meet the deceased, and that his fore- 
 man, John Eddy, was also present. The certificate of the 
 witness's marriage was then put in to prove the date, and 
 John Eddy was called to corroborate the evidence as to the 
 deceased having been to the house in Stanhope Terrace at 
 the time mentioned, and that he himself saw him between a 
 quarter before seven and half-past eight in the evening. 
 
 Mr. James Smith, a brother of the deceased, after proving 
 that the signature to the promissory note was not in his 
 brother's handwriting, produced a paper which he had re- 
 ceived from a person of the name of Kearney : this latter 
 being called gave some most extraordinary evidence. He said : 
 " My name is Bryan Kearney. I sell fruit in the streets. 
 Some time since, I was selling fruit in Brompton Road; I 
 think about the 1st October last. [This was after the trial 
 of the action " Bailey v. Smith/' but before the prisoner had
 
 154 TRIAL OF THE REV. WILLIAM BAILEY. 
 
 been apprehended.] The prisoner, who up to that time was 
 a perfect stranger, came up and asked me how I was getting 
 on. I told him I got on the best I could, but bad was the 
 best. He then asked me if I knew anything about law. I 
 told him I did not. He then said he had lately been engaged 
 in a law-suit, which he had lost because the opposite party 
 had three witnesses and he only two. He asked me if I 
 could be a witness for him. I said I would. He gave me a 
 shilling, and told me to call upon him at his house at ten 
 o'clock next morning. I went according to appointment, 
 and he told me that Mr. Smith's counsel would baffle me 
 very much, and that I must be prepared for them. I told 
 him that I did not know what to say. He said he would 
 write it down for me. He then sat down at a table and 
 commenced writing, and afterwards read to me a paper, 
 which he also desired I should read, and told me what I 
 should have to swear to. The paper produced by the last 
 witness is the same the prisoner gave to me, and I subse- 
 quently gave it up to the witness. The prisoner then desired 
 me to go to Mr. Hill, his solicitor, in St. Mary Axe, and I 
 did so on the following day. Shortly after I arrived the 
 prisoner came in, and I was then questioned by the solicitor, 
 and what I stated was taken down in writing, but I cannot 
 now recollect what I said. Some time after that the prisoner 
 called at my house and took me as far as Hyde Park 
 Corner, and during our walk he particularly instructed me 
 what I should say. A few days after that the prisoner again 
 called at my house, and desired me to attend the following 
 day at the Exchequer Coffee-house. I went there, and a 
 paper was read over to me, after which I was directed to go 
 before a magistrate and swear to it. A boy was sent with 
 me for that purpose, but I could not swear falsely. My flesh 
 crawled upon my bones, so instead of going to swear the 
 paper I walked home. The prisoner gave me Is. and pro- 
 mised to give me 307." 
 
 In cross-examination the witness admitted that since the 
 
 1st October last he had been living at the expense of the 
 
 .prosecution, and without doing any work. Some attempt 
 
 was made to damage his character, but without effect. A 
 
 witness, named Robert Lenuey, proved that the paper in
 
 TRIAL OF THE REV. WILLIAM BAILEY. 155 
 
 question had been written by him at the prisoner's request 
 from a draught in the prisoner's handwriting. The original 
 was afterwards produced by Inspector Pearse, who appre- 
 hended the prisoner, and found it in his table drawer. The 
 following is a copy of the paper : 
 
 " I saw the late Robert Smith at Dr. Bailey's chapel on 
 the evening of the 12th August, 1841. Mr. Smith lived at 
 No. 12, Great St. Andrew Street, Seven Dials. The chapel 
 service began at seven, and ended about a quarter past eight. 
 Mr. Smith was just going into chapel before me, and he 
 walked into the vestry. Mr. Smith came out of the vestry 
 just before the service commenced, and after him came out 
 one or tAvo ladies, and then in two or three minutes came the 
 two parsons. Dr. Bailey read prayers and the other strange 
 parson preached. Mr. Smith and the one or two ladies went 
 into the body of the church during the service, but I could 
 see them from the free seats where I sat. I saw Mr. Smith 
 on the stairs as the congregation were passing out, but I 
 took no notice of him afterwards, whether he spoke to any 
 one or whether he walked home with any one. I saw him 
 a few days after in the park, and had a chat with him. 
 Dr. Bailey was in Ireland in June and July, 1841. There 
 had been no Thursday evening service since August, 1841. 
 I never was in any room in Mr. Smith's house but the front 
 parlour. The name Smith was on the door on a brass 
 plate." 
 
 Henry Flemming, a cabinet maker, deposed that he unfor- 
 tunately knew the prisoner, and that on a Sunday in Sep- 
 tember last the prisoner called upon him, and witness walked 
 out with the prisoner for about an hour. He said his 
 sister had been robbed of about 3000/., and that it would be 
 an act of justice to any one to swear to the fact. He then 
 asked witness to swear that he knew Mr. Smith, where he 
 lived, and that he had seen him at his (prisoner's) house. 
 The witness had never seen Mr. Smith in his life to his 
 knowledge. Prisoner offered the witness 20/,, and 101. if 
 he could give evidence for him, saying he only wanted one 
 or two other witnesses and then he could come off victorious. 
 Witness was also instructed to say that he had seen Mr. Smith 
 at his chapel in Queen's Square 011 the 12th of August, and
 
 156 TRIAL OF THE REV. WILLIAM BAILEY. 
 
 had afterwards seen him leave with a Mrs. Grey- A paper 
 of instructions was given to him, which he afterwards 
 destroyed at the request of Mrs. Bailey. He should know 
 the contents of the paper if read." 
 
 The contents of the paper were then read from the draught 
 in the prisoner's handwriting. It stated with great minute- 
 ness what the witness was to say. Witness further deposed 
 that the prisoner afterwards called again upon him at his 
 house, and asked if he could call to mind any particular 
 occurrence which would enable him to recollect the 12th of 
 August. "Witness produced a card he had from the Opthalmic 
 Hospital, dated the 12th of August, which the prisoner stated 
 was just the thing. Witness afterwards attended at West- 
 minster Hall and swore an affidavit to the above effect. He 
 had received in all 25s. from the prisoner. 
 
 Mr. Inspector Pearse proved apprehending the prisoner at 
 his residence in Coleshill Street, and the finding of the docu- 
 ments already produced in the drawer of a writing-table in 
 his study. He also produced a paper in the prisoner's hand- 
 writing, containing several initial letters, opposite which were 
 certain sums varying from 10/. to 40/. The name of " Flem- 
 ming," written in full, had opposite it " 30/.," and " Krny." 
 " 10/." Evidence was then given showing that the prisoner 
 had paid money to some of the witnesses, and the books of 
 the deceased were produced to prove that there was no entry 
 in his accounts, which were carefully kept, of any transac- 
 tion with the prisoner. The case for the prosecution then 
 closed. 
 
 Mr. Clarkson then rose to address the jury on behalf of 
 the prisoner. After alluding to the position in life of his 
 client, and the momentous issue involved in the trial, he 
 proceeded : 
 
 " The exhibition which has been made in the course of the 
 trial is indeed most melancholy, and whatever may be the 
 result, it is evident that there are in this country persons 
 who for a paltry sum will jeopardize their souls, and then 
 have the effrontery to get into the witness box and acknow- 
 ledge it." [Considering that bad as these witnesses might 
 be, it was his client who had suborned them, the justness of 
 these observations on the part of Mr. Clarkson is rather
 
 TRIAL OF THE REV. WILLIAM BAILEY. 157 
 
 questionable.] " The gentleman whom I have the honour 
 to defend is, as his sacred calling will prove, a man of educa- 
 tion, who, previous to the institution of these proceedings 
 has borne a character upon which reproach has never been 
 breathed, and I would ask you by your verdict to-day to say 
 that there are no grounds even for the present stigma upon 
 his character. 
 
 " I would ask, are you at all satisfied that the deceased 
 did not sign the promissory note in his lifetime ? If you are 
 not, the prisoner is undoubtedly entitled to an acquittal. 
 Why is it that the prosecution do not indict the prisoner for 
 forging the I. O. U. instead of the promissory note? I will 
 tell you : because that document bears the attestation of the 
 Rev. Mr. Nixon ; but although that gentleman is dead, still 
 it could have been proved it was his signature, and in fact it 
 was so proved at the previous trial. 
 
 " It has been admitted by the learned counsel for the pro- 
 secution that the signature to the I. O. U. and the signature 
 to the promissory note are in the same handwriting. If, 
 therefore, I prove to you the attestation of the Rev. 
 Mr. Nixon, that I apprehend will show the genuineness of 
 the document, and you will have no hesitation in saying 
 the promissory note was given by the deceased also." 
 
 Mr. Clarkson then laid before the jury an outline of the 
 evidence he should produce, showing that the deceased was 
 present in the vestry on the evening of the 12th of August, 
 when the I. O. U. was signed, from which he submitted it 
 was to be inferred that the promissory note afterwards pre- 
 pared for the same amount, and purporting to be signed by 
 the deceased on a later day, was genuine. He pleaded the 
 poverty of the prisoner as a reason for not producing his 
 sister nor the witness Catherine Laxton, who had given 
 evidence at the trial of the civil action. The following wit- 
 nesses were then called : 
 
 Susanna Lee, a pew-opener, deposed that she was at the 
 chapel on the evening of the 12th August last. She knew 
 Mr. Smith, and remembered him calling and asking for 
 Mr. Bailey, and she showed him into the vestry. A female 
 named Young went in at the same time. The Rev. 
 Mr. Nixon was also there. On cross-examination the witness
 
 158 TRIAL OF THE REV. WILLIAM BAILEY. 
 
 admitted she had never seen the deceased before, and did not 
 know Mrs. Grey by sight. 
 
 William C. Tifnell, a warden of the chapel, stated that 
 on the 12th of August he was at the chapel, and on going 
 to the vestry he found that Dr. Bailey had some one with 
 him, and therefore did not go in. He could not say if it 
 were the deceased or not, as he did not know him. He 
 knew the Rev. Mr. Nixon, and was acquainted with his 
 handwriting. He believed the signature to the I. O. U. was 
 Mr. Nixon's. 
 
 Ellen Grey deposed that she knew the late Mr. Robert 
 Smith, and saw him at the chapel on the evening of the 12th 
 of August last in the vestry with the Rev. Mr. Nixon and 
 the prisoner. Witness was present and saw Dr. Bailey read 
 over a paper which Mr. Smith gave him, and heard Dr. Bailey 
 make some objections to the paper, to which Mr. Smith 
 replied that to make it all right the doctor and Mr. Nixon 
 had better put their signatures to it. Witness then saw both 
 Dr. Bailey and Mr. Nixon write upon the paper, but could 
 not say what it was they wrote. After service, Mr. Smith 
 and witness walked together as far as Birdcage Walk, and in 
 the course of conversation the deceased told her he had been 
 to see Dr. Bailey about some money which he had placed in 
 his hands on behalf of his sister, and that it was a good 
 thing she had done so as she might have lost it. 
 
 On cross-examination the witness admitted she was sepa- 
 rated from her husband, and that since the last trial she had 
 passed by another name. She had walked home with 
 Mr. Smith, but did not know his name, and had been in his 
 house with him for two or three minutes to get a volume of 
 sermons which he promised to lend her. Had lived in 
 Dr. Bailey's family between four and five months. Dr. Bailey 
 had been surety for her to a loan society. 
 
 The Rev. Mr. Scobell proved receiving notes from Mr. 
 Nixon, and believed the signature to the I. O. U. to be in his 
 handwriting, and the Rev. Mr. Hill gave similar evidence. 
 They both said they had a very good opinion of Dr. Bailey's 
 character as a moral man ; but Mr. Hill, on being pressed 
 whether he had heard what the Bishop of Winchester had 
 said of the prisoner at the last trial, admitted he had, and
 
 TRIAL OF THE REV. WILLIAM BAILEY. 159 
 
 that since that time he had thought Dr. Bailey's character 
 more questionable. [At the previous trial the Bishop of 
 Winchester was called by the defendant, the administrator 
 of Mr. Smith, and stated that Dr. Bailey's explanation of a 
 signature to a testimonial he had produced to his lordship 
 was not satisfactory to him ; at the same time three other 
 witnesses swore they would not believe Dr. Bailey on his 
 oath.] 
 
 Sarah Barberry proved that on the morning of the 12th 
 August she saw the deceased at his own home, and he asked 
 whether she would go with him to Dr. Bailey's chapel that 
 night, and witness consented. Deceased said he was going 
 on business respecting some money belonging to Miss Bailey. 
 Witness had on other occasions heard the deceased say he 
 held a large sum of money belonging to Miss Bailey, and 
 when she had been at his house she had seen a book lying 
 on the table, which the deceased said contained the account 
 between them. The book produced was similar to the one 
 she saw at the deceased's house. 
 
 On cross-examination the witness admitted she had known 
 the deceased for many years, and that he visited her at her 
 own home. She was by trade a dressmaker. 
 
 Catherine Glanville, formerly a servant in Dr. Bailey's 
 family, proved seeing Mr. Smith at the chapel on the night 
 in question in a pew with Mrs. Grey. Was certain it was 
 the 12th of August, as it was the last time she was at chapel. 
 Some further evidence as to character was then given, and 
 the case for the prisoner closed. 
 
 Mr. Humfrey, in reply, dwelt with considerable force on 
 the nature of the defence set up by the prisoner, and the 
 character of some of the witnesses called on his behalf. He 
 commented upon the observations made by the prisoner's 
 counsel reflecting on the character of the witnesses who had 
 been bribed to give evidence for Dr. Bailey after the previous 
 trial, which he said (coming as it no doubt did from the 
 instructions of the prisoner, who had himself tempted and 
 suborned these witnesses) was an instance of " Satan re- 
 proving Sin." The statement alleged to have been made by 
 the deceased to the witness Barberry was, he submitted, 
 quite inconsistent with his well-known character for close-
 
 160 TRIAL OF THE REV. WILLIAM BAILEY. 
 
 ness. The real weakness of the defence was, however, the 
 absence of Miss Bailey, and of any evidence to show how she 
 had become possessed of the money professed to have been 
 advanced by her to the deceased. 
 
 Mr. Justice Williams, in summing up, after alluding to 
 the station in life of the prisoner at the bar, Avhich he said 
 he was quite sure the jury would take into consideration no 
 further than was necessary to lead them to a right conclusion, 
 observed: "Your attention will not be directed to the fact 
 whether the I. O. U. was a forgery, although that is an im- 
 portant feature in the case, but whether the promissory note 
 which is the subject of the indictment is or is not a forgery. 
 Still, if in considering the case you are of opinion that the 
 I. O. U. is a fiction, then there will certainly be strong 
 grounds for supposing that the promissory note is a forgery, 
 as they are both of the same amount, and the latter is only 
 a confirmation of the former. 
 
 " It is most important for your consideration that the 
 sister of the prisoner is not called, for if there had been any 
 truth in the case she could at once have proved it. It is 
 admitted she is living, and no cause whatever is shown for her 
 absence. If you are of opinion the witnesses who speak to 
 the handwriting in the document are correct, then a forgery 
 has undoubtedly been committed; but there is no proof, 
 neither is there any attempt made to show that the prisoner 
 was seen to commit the forgery. If you are satisfied that 
 the promissory note is forged, then there is abundant proof 
 of the uttering of that instrument by the prisoner. 
 
 " With respect to the witnesses Kearney and Flemming, 
 nothing whatever can be said in their favour, and very little 
 if any reliance can be placed on what they said, for a man 
 who would deliberately swear to a fact one day and the next 
 swear that his previous statement was a falsehood cannot be 
 believed unless confirmed by other testimony, and very little 
 more can be said of a man who held out a statement for the 
 purpose of its being used as evidence, and then when called 
 upon to swear to it retracted it." 
 
 The jury, after a deliberation of only a few minutes, returned 
 a verdict of guilty of uttering the promissory note, knowing 
 it to be forged.
 
 TRIAL OP THE REV. WILLIAM BAILEY. 161 
 
 Mr. Jones, on the part of the prisoner, then applied to 
 have the sentence postponed in order to give the counsel for 
 the prisoner the opportunity of moving for arrest of judg- 
 ment, on the ground that the evidence of the uttering was 
 insufficient. 
 
 Mr. Humfrey opposed the application ; and 
 
 Mr. Justice Williams remarked that if there were any 
 grounds for such an application it might be made after- 
 wards. 
 
 Sentence was then passed on the prisoner of transportation 
 for life (a) . 
 
 (a) In the month of April following, Dr. Bailey, in pursuance of his 
 sentence, was transported to Van Diemen's Land in the ship Gilmore. 
 The chapel in Queen's Square, Westminster, to which such an unenviable 
 notoriety was given by the proceedings, and of which the prisoner was 
 the minister, enjoying up to the time of the first trial a considerable 
 amount of popularity, and no little reputation as a fashionable preacher, 
 is on the left-hand side of the square, and is now used as a mission room. 
 
 M
 
 THE TRIAL 
 
 OP 
 
 JOHN TAWELL 
 
 FOR THE MURDER OF SARAH HART BY POISON, 
 AT THE AYLESBURY SPRING ASSIZES, 
 
 BEFOBE ME. BAHON PABKE, 
 
 On March 12th, 1845. 
 
 Counsel for the Prosecution : Mr. Serjeant Byles, and Mr. 
 Prendergatt. 
 
 For the Prisoner : Mr. Fitzroy Kelly, Mr. O^lnlleij, and 
 Mr. Gunning. 
 
 INTRODUCTION. 
 
 / 
 
 ON the 1st of January, 1845, by means of the electric tele- 
 graph, then quite in its infancy, the departure of John Tawell 
 from Slough, under circumstances of considerable suspicion, 
 was signalled to London. During the whole of that after- 
 noon and evening .Tawell was traced to different places in the 
 city, and on the next morning, on the receipt of further 
 intelligence, he was arrested on a charge of murder. He 
 received the announcement of his arrest, and the particu- 
 lars of the charge in a manner thoroughly characteristic of 
 him, denied he had ever been at Slough, and observed, " My 
 position in life places me above all suspicion." It was this 
 character of an outwardly prosperous and highly religious 
 man that Tawell had acted the greater part of his life. 
 Nothing could have been more false. 
 
 On the previous day Tawell had been observed coming out 
 of a house in Bath Place, near Slough, in which after his 
 departure the body of a female was discovered lying on the 
 floor dead. This female was a person named Sarah Hart.
 
 TRIAL OF JOHN TAW-ELL. 163 
 
 A post mortem examination assigned the cause of death to 
 prussic acid, administered, according to the prosecution, by 
 Tawell. The case for the defence was, first, that the woman 
 did not die by prussic acid, and secondly (and th,s was the 
 main point), that if prussic acid were the cause of death it 
 was derived from substances taken by the deceased volun- 
 tarily, and evolved by the ordinary process of digestion. 
 
 The trial is interesting as raising the peculiar point whether 
 prussic acid could not be obtained from apple-pips contained 
 in apples eaten in the ordinary way as food, sufficient to 
 destroy life ; and it was contended by Mr. Fitzroy Kelly, on 
 behalf of the prisoner, that it was to that cause, and not to 
 prussic acid administered by the prisoner, that the death of 
 the deceased, if caused by poison at all, was to be attributed. 
 The point was contended for with considerable ability on 
 behalf of Tawell, not only by his counsel but also by ex- 
 perienced scientific advisers, amongst others by Mr. Herepath 
 and Dr. Letheby, who doubtless furnished ample materials 
 for the cross-examination of the adverse witnesses; but 
 Mr. Kelly was unable to satisfy the jury that the death of 
 the deceased proceeded from this cause; and in fact the 
 defence, though scientific and ingenious, had one fatal defect 
 in it apple-pips, though undoubtedly containing prussic 
 acid, as do several other substances, such as confectionary, 
 cheese, &c., yet the poison in them cannot be extracted 
 except by distillation. This point was particularly impressed 
 upon the jury by the learned judge in his summing up, and 
 also one other point of importance, that the peculiar smell 
 of prussic acid had been detected in the stomach of the 
 deceased before there was any possibility of its having been 
 set free by distillation. 
 
 It is somewhat singular that in this trial, though scientific 
 witnesses of great reputation were employed by the pri- 
 soner as advisers, none of them were called upon to give 
 evidence. 
 
 The antecedents of Tawell are peculiar. When quite a 
 young man he had involved himself in a crime, the punish- 
 ment of which in those days was death, and but for a curious 
 coincidence, and the merciful feelings of his prosecutors, he 
 would then have ended his days on the scaffold. Nearly thirty 
 
 *
 
 164 
 
 TRIAL OF JOHN TAWELL. 
 
 years previously, dressed as a Quaker, of which body he was 
 then undoubtedly a member, and representing himself as a 
 partner in a firm of bankers in the country, he called on an 
 engraver in the city of London, and produced a bank note. 
 He pointed to one of the names on the note, said it was his 
 name, and that he was entrusted by his partners to get a plate 
 engraved exactly similar to it. The engraver agreed to comply 
 with the order, and promised to be very careful to make the 
 plate an exact facsimile of the note, about which Tawell pro- 
 fessed himself very anxious. In a few days Tawell called and 
 examined the plate very carefully with the note, and finding 
 it was correct ordered a quantity of copies to be struck off, 
 for which he (Tawell) was to send at a time agreed upon. In 
 the interim, however, the engraver became suspicious, and 
 communicated with the police. A trap was laid for the 
 person who was to call for the notes on the day in question, 
 into which Tawell himself fell. The astonishment of the 
 police, of the bankers, to all of whom Tawell was well known, 
 and of the members of the Society of Friends at this discovery 
 was very great. The bankers felt they were bound to prose- 
 cute, and with the evidence in the hands of the police it 
 would have been quite impossible for Tawell to have escaped. 
 By a singular accident, however, on searching Tawell there 
 was found on him a Bank of England note, which on 
 investigation turned out to be a forgery. There was very 
 little doubt but that Tawell was quite ignorant of the note 
 being forged ; but advantage was taken of its being found in 
 his possession to induce the bankers to forego to prosecute for 
 the forging of their notes, on the condition that the Bank 
 of England would prosecute Tawell for being in possession 
 of a forged note of the Bank of England knowing it to be 
 forged, it being understood that Tawell should plead guilty. 
 Accordingly, but not without difficulty, the Bank of 
 England were induced to take lip the prosecution, and at the 
 Old Bailey sessions held in February, 1814, Tawell was 
 indicted for having in his possession a forged note of the 
 Bank of England well knowing it to be forged. The case 
 came on for trial before the Recorder and a London jury, 
 and Tawell, as arranged, pleaded guilty. The offence not 
 being capital his life was spared, but he was sentenced to
 
 TRIAL OF JOHN TAWELL. 165 
 
 transportation for fourteen years. By thus pleading guilty 
 to a crime of which he was innocent, Tawell escaped punish- 
 ment for an offence of which he was undoubtedly guilty, 
 and the Society of Friends were saved the humiliation of 
 seeing one of their own body end his days on the 
 scaffold. 
 
 Ta well's career in Australia was fortunate; he made 
 money, and after the lapse of several years returned to London 
 with a competency. He tried hard to get re-admitted into 
 the Society of Friends, but without effect, and though he 
 dressed as a Quaker, and always attended their services, and 
 passed himself off as a member of that body, he was, in fact, 
 never again admitted or acknowledged by them as a member 
 of their society. 
 
 The facts connected with the present trial will best appear 
 from the opening statement of Mr. Serjeant Byles, who 
 conducted the prosecution. 
 
 " The prisoner at the bar formerly carried on the business 
 of a chemist and druggist. He had the misfortune several 
 years ago to lose his first wife. Shortly before her death the 
 deceased, Sarah Hart, then a young woman somewhere about 
 thirty years of age, entered into his service, and I shall show 
 you by evidence which I need not open in detail the nature 
 of the acquaintance which subsisted between her and the 
 prisoner, and that when she left his service she was 
 pregnant. She lived first after quitting his service at a 
 place called Crawford Street, London, where I shall show 
 you that the prisoner was in the habit of visiting her. She 
 lived afterwards at Paddington Green, thence removed to 
 Slough, and for some time previous to her death was living 
 at Bath Place, which consists of four small cottages, forming 
 one detached building. Bath Place stands upon the Great 
 Western Road, about a quarter of a mile beyond the Wind- 
 mill public-house, which is kept by a person named Botham. 
 In the end house, towards London, lived Mrs. Ashley ; in 
 the next the deceased, Sarah Hart, the mother of two children, 
 who was living there with them, and who, as it will appear 
 to you in the course of the case, was entirely dependent on 
 the prisoner for her support, and whom he was in the habit of
 
 166 TRIAL OF JOHN TA\VELL. 
 
 visiting at Batli Place, and supplying with money. The pri- 
 soner himself has recently resided at Berkhampstead, in 
 circumstances of apparent ease and affluence. He married 
 no long time since a second wife a lady to whose deep 
 misfortune no man can allude without feelings of commisera- 
 tion. I shall show you that notwithstanding the apparent 
 ease and respectability of his circumstances, he was at the 
 time this occurrence took place by no means in such circum- 
 stances. I shall call his banker's clerk to show you that at 
 this moment he had overdrawn his account. You will find 
 that he was in the constant habit of visiting Sarah Hart, 
 that she was dependent upon him for money, and that he 
 found himself in this position that money must be supplied, 
 or that which would otherwise be secret must become appa- 
 rent, namely, the nature of his connection with this 
 person. 
 
 " On the 1st of January in the present year I shall show you 
 that the prisoner was at the Jerusalem Coffee-house, Corn- 
 hill, London, the waiter of which he told, about the middle 
 of the day, that he was going to dine at the west end of the 
 town, and desired that his great coat should be left for him 
 on his return about nine o'clock. He did not proceed to the 
 west end of the town, but to the station of the Great Western 
 Railway, by the four o'clock train of which railway he pro- 
 ceeded to Slough. On arriving at Slough he went to the 
 residence of Sarah Hart, at Bath Place ; and it will appear 
 that after he had been a short time with her she went by his 
 direction to the Windmill public-house for a bottle of porter. 
 It is important to bear in mind that she was at that moment 
 perfectly well and in very good spirits. Having bought the 
 porter, she borrowed a corkscrew, and brought both home 
 with her to Bath Place. A person spoke to her on her way 
 back, from whose testimony it appears that she was at 
 that time perfectly well. Very shortly after her return 
 Mrs. Ashley, the person who resided in the next house, 
 being seated at work before a candle, heard a noise in the 
 room of Sarah Hart. I should observe to you that these 
 cottages consist each of two very small rooms on the ground- 
 floor. Mrs. Ashley heard in her neighbour's apartment a 
 moan or stifled scream. She laid down her work ; the noise
 
 TRIAL OF JOHN TAWELL. 167 
 
 continued ; she became very much alarmed, and taking up 
 the candle, went to the door, and proceeded down the path 
 leading from the cottage to the road ; but before she reached 
 the gate she saw the prisoner approaching the gate which 
 terminated a similar path from the cottage of Sarah Hart. 
 Mrs. Ashley will tell you that at this moment the moans of 
 the deceased were distinctly audible. The prisoner went to 
 the gate ; he trembled, appeared greatly agitated, and had 
 much difficulty in opening the gate, which I believe 
 Mrs. Ashley, who had reached it by this time, assisted him 
 in opening, saying, ' What is the matter with my neighbour ? 
 I am afraid she is ill/ the moans of Sarah Hart being 
 distinctly audible. The prisoner made no answer, but 
 passed out of the gate and proceeded towards Slough. 
 Mrs. Ashley, in consequence of the noise, went up to Sarah 
 Hart's house, and turning round, saw the prisoner going 
 down the road. She then went into the house, and observed 
 in Sarah Hart's room, just before the fireplace, a small table, 
 and on it a bottle of porter open, and partly drunk, also two 
 tumblers, one of which was next the window, and towards 
 the chair upon which Sarah Hart had apparently been sitting. 
 In one of these tumblers there was some froth, in the 
 other there was porter or porter and water, it is not quite 
 certain which. The deceased, Sarah Hart, was lying on the 
 floor ; her cap was off, and her hair hanging down. Her 
 clothes were up to her knees ; one stocking was down, and 
 one shoe off.. She was still continuing the moaning noise 
 which I have described to you. Mrs. Ashley went up to her 
 and asked her what was the matter, and raised her head up, 
 but the deceased was unable to speak. Mrs. Ashley called 
 in two neighbours, and some water was brought. Eventually 
 Mr. Champneys, a surgeon, was sent for. He felt her pulse, 
 and said he thought he could discover one or two beats. She 
 moved her tongue, or jaw, a little. Mr. Champneys put his 
 hand under her clothes to feel her heart, but he could discover 
 no pulsation. She was clearly dead." 
 
 After alluding to the manner in which suspicion was first 
 raised against the prisoner, and how at the railway station a 
 gentleman, the Rev. Mr. Champneys sent to London a 
 message informing the authorities that there was a person
 
 168 TRIAL OF JOHN TAWELL. 
 
 in a first-class carriage who ought to be watched, the learned 
 serjeant proceeded : 
 
 " A policeman was on the platform, and as soon as 
 the prisoner got out of the carriage the policeman saw 
 him get into an omnibus, and putting on a plain coat 
 over his police dress, he stepped up behind the omnibus 
 with the conductor. The omnibus proceeded to the Bank, 
 where the prisoner got but, the policeman taking sixpence 
 from him. He went forward to the Wellington statue, 
 turned round, looked back, and then went to the Jerusalem 
 Coffee-house, in Cornhill, and inquired for the coat which I 
 have mentioned in the early part of my statement. The 
 waiter gave him the coat, and he then went from Cornhill 
 down Gracechurch Street to London Bridge, and over that 
 to another coffee-house in the Borough, the policeman still 
 watching him, and taking care, of course, that he should not 
 be observed. The prisoner stayed there about half an hour. 
 He then came out, and retraced his steps over London Bridge, 
 and went down Cannon Street to a lodging-house in Scott's 
 Yard kept by a person of the name of Hughes, who is, I 
 believe, a member of the Society of Friends. The policeman, 
 having waited half an hour, and finding that the prisoner did 
 not come out of the lodging-house, went away. The next 
 morning further intelligence was received from Slough, and 
 the policeman, taking another officer with him, proceeded to 
 the house in Scott's Yard. He found] that the prisoner had 
 left the house ; and he then went to the Jerusalem Coffee- 
 house, in Cornhill, where he found the prisoner, and said to 
 him, ( I believe you were down at Slough yesterday ?' He 
 denied it. He said he knew nobody at Slough, and had not 
 been there. ' You must be mistaken,' said he, ' in the 
 identity; my station in life places me above suspicion/ 
 The officer, however, took the prisoner into custody, and took 
 him down to Salthill, where he was handed over to the cus- 
 tody of Perkins, the superintendent of the Eton police." 
 
 After detailing the nature of a conversation which took 
 place between the prisoner and the superintendent of police 
 at Eton, the substance of which will be given in evidence, 
 Mr. Serjeant Byles continued : "By direction of the coroner, 
 a post mortem examination took place the next day, I believe,
 
 TRIAL OF JOHN TAWELL. 169 
 
 after the death of the woman. You will hear what was 
 the nature of that post mortem examination more in detail 
 from the surgeons. But it is necessary for me to tell you, in 
 the first place, that the surgeons could not discover any 
 external injury to account for death. They examined the 
 brain; there was no appearance of anything in the brain 
 which could have produced death. In the same manner they 
 examined the lungs, and found nothing but an old adhesion, 
 which, they will tell you, is quite consistent with perfect 
 health, and is very common. It had nothing to do with the 
 death of the deceased. They examined her heart, and found 
 it perfectly healthy ; and so were the intestines. There was 
 nothing, so far as they could form an opinion, to show that 
 death had resulted from external injury or from internal 
 causes. In opening the body one of the surgeons thought 
 he smelt prussic acid, but the other could not discover any- 
 thing of the kind. Either it did or it did not exist ; I will 
 not pretend to say which. Probably the surgeons will not. 
 Certainly when they came to examine the stomach they 
 could discover no smell of prussic acid ; but, inasmuch as it 
 appeared to them clearly that the deceased had not died from 
 either external injury or internal causes, they came to the con- 
 clusion that she had died by poison of some kind or other ; 
 and in order that the contents of the stomach should be 
 known they took them to a scientific chemist in London, who 
 submitted them to a chemical examination. At the time the 
 surgeons conjectured that the woman had died through swal- 
 lowing oxalic acid. Tests for that poison were applied, and 
 none was discovered. Tests were also applied for sulphuric 
 acid, for opium, for various mineral poisons, and for prussic 
 acid. Sulphate of copper and nitrate of silver were used. I 
 am not competent to describe fully the nature of all the tests 
 that were applied, but the surgeons satisfied themselves upon 
 that occasion that prussic acid had been the cause of death. 
 They found prussic acid in the stomach, and that it produced 
 what they will tell you is an infallible test of its presence, the 
 1 Prussian blue.' .Suffice it to say, that after the stomach 
 had been submitted to the examination of Mr. Cooper, the 
 chemist, they came to the conclusion that the deceased had 
 died from the effects of prussic acid.
 
 170 TRIAL OF JOHN TAWELL. 
 
 " Gentlemen, at this time it was not known, and it will be 
 very important for you to bear this in mind, that the prisoner 
 had had any prussic acid at all. There was no reason at that 
 time to attribute death to the influence of prussic acid, except 
 what had been found in the stomach. Subsequently the 
 remainder of the stomach was taken to Mr. Cooper, and it 
 was tried by sulphate of iron, nitrate of silver, and cyanide of 
 silver, and prussic acid was clearly proved to exist. Mr. Cooper 
 was now able to say, observing the contents of the two por- 
 tions of the stomach, that in the stomach there were not 
 fewer than fifty grains of prussic acid, according to the 
 strength of the prussic acid of the London Pharmacopoeia. 
 But, gentlemen, of all poisons this is the most volatile, being 
 subject to evaporate most rapidly, inhaled while living, and 
 absorbed by the tissues after death. The quantity is equal 
 to one grain of pure prussic acid, which is quite enough to 
 cause death. This poison is so subtle and so energetic that 
 a single drop of the pure acid placed upon the tip of a rod 
 and put into the mouth of any small creature a bird or a 
 dog would cause almost instant death. About two -thirds of 
 a grain a grain and a drop, I am told, are nearly synony- 
 mous terms of pure prussic acid has been known to kill as 
 many as seven adults, one after the other. Now this acid is 
 not sold in its pure state. According to the London Phar- 
 macopoeia, there are two grains of pure acid to every ninety- 
 eight grains of water. But a stronger preparation of it, 
 called Scheele's prussic acid, is about two and a half times 
 as strong as that of the London Pharmacopoeia, consist- 
 ing of five grains of pure acid to ninety-five grains of 
 water. 
 
 " Owing to the publicity which things of this kind naturally 
 obtain, it was discovered that on the Wednesday when the 
 alleged murder was committed the prisoner had been to the 
 shop of a chemist in Bishopsgate Street and asked for two 
 drachms of Scheele's prussic acid. He said he wanted it for 
 an external injury. He brought a bottle with him with a 
 glass stopper, but the shopman gave him another bottle, 
 which was labelled for him, and he took it away with him on 
 the day he left London. I shall show you that he was again 
 at the chemist's shop on the Thursday, the day after he slept
 
 TRIAL OF JOHN TAWELL. 171 
 
 at the lodging-house ; and that he then said he had lost the 
 bottle he had before, and obtained the bottle which he had 
 originally brought and left there. 
 
 " Such then is the case against the prisoner. I have stated 
 to you that the prisoner -will have the benefit of a full defence 
 by counsel. I think it our duty on the part of the prosecu- 
 tion to make one or two remarks, such as we deem pertinent 
 to the subject, trusting that I shall not make any observation 
 of which any person in the situation of the prisoner can com- 
 plain. But as the interest of the prisoner is consigned to 
 my learned friend, so on the other hand the interest of the 
 public is placed, under the eye of my lord on the bench, in 
 the hands of the counsel for the prosecution. I wish to call 
 your attention to the first statement made by the prisoner. 
 He first said he had not been to Slough. That will be proved 
 beyond all question by witnesses who saw him there. It 
 became very soon apparent that that statement could not be 
 true; for Mrs. Ashley, who had a candle at the time, and 
 other persons, could identify him. It will be proved that he 
 was at Slough and at Bath Place. Now the first question 
 you will have to ask is this, did the deceased die by poison ? 
 What the poison was is entirely immaterial to the issue 
 before you; although I think it will be proved, beyond 
 any reasonable doubt, what the poison was. But the first 
 question is, did she die by poison ? There is no external 
 injury, nor any internal cause sufficient to account for death ; 
 and there is more than a fatal dose of prussic acid found in the 
 stomach; and that it is prussic acid results from not positive 
 evidence only, but negative, because tests for other poisons 
 were applied. It will be too clear then that the deceased died 
 by poison, and that the poison is prussic acid. Prussic acid, 
 particularly such a dose as this, is most rapid in its effects. 
 Probably no evidence will be adduced to show that the poor 
 woman bought the poison. But we shall show you that the 
 prisoner had that very morning bought poison. If the deceased 
 did administer it to herself, where is the little phial ? It is not 
 to be found. But I shall show you that the prisoner himself 
 had such a phial that morning. Where is it ? I shall prove 
 to you that the prisoner went back again to the chemist in 
 Bishopsgate Street, and stated that he had lost that bottle.
 
 172 TRIAL OF JOHN T A WELL. 
 
 Where is it ? You will find the prisoner coming out of the 
 house at the time the woman must have been in a dying 
 condition. He is asked what is the matter, but makes no 
 observation. He leaves the woman to herself ; and then the 
 next thing that he states is that he never was there." 
 
 Mary Ann Ashley, sworn and examined by Mr. Prender- 
 gast. " I am a widow living at Bath-place, Salthill. On the 
 1st day of January last (Wednesday), a person named Sarah 
 Hart lived next door to me. Between four and five o'clock 
 on that day I saw the prisoner go into her house. I heard a 
 stifled sort of scream between six and seven o'clock. The 
 stifled scream seemed to come from Mrs. Hart's house. 
 When I heard it I took a candle off the table and opened 
 my door. I saw the prisoner coming out of Mrs. Hart's 
 house. I found he was agitated, and could not open 
 Mrs. Hart's gate, which is fastened by a small button. I 
 said, directly I got out of my house, ' I am afraid my 
 neighbour's ill.' I was then walking along the path, and I 
 think I spoke loud enough to be heard by the person whom 
 I believe to be the prisoner. He was about six yards off; 
 he made no reply. I then heard the moaning noise in 
 Hart's house. I said nothing more to the prisoner, except 
 observing that the gate was fastened by a little button, and I 
 said, ' Allow me to open it, sir ; ' he was trying in a hurried 
 manner to open the gate. He appeared to be agitated. The 
 prisoner went out before I went into Mrs. Hart's garden. 
 I saw his face. I had the candle with me, and held it over 
 the inside of the gate where he was. That gave me an 
 opportunity of seeing him so as to say now that he is the 
 same man. I do not recollect having seen him before that 
 time. I found Mrs. Hart's door shut. I have no doubt 
 whatever that the prisoner is the man. The moment I 
 opened the door I found the deceased on the floor, with her 
 head not a great way from the door. She was still making a 
 noise, and her eyes were fixed. She did not move her limbs. 
 I took hold of her hand, and raised her head ; I said, ' Oh, 
 Mrs. Hart, what is the matter ? ' She made no answer. I 
 thought she slightly pressed my hand, but that I cannot 
 positively tell. When I raised her up, a little froth came
 
 TRIAL OF JOHN TAWELL. 173 
 
 out of the corner of her mouth. Her eyes appeared to be 
 fixed, and I thought she was dying. When I entered 
 Mrs. Hart's room I saw a porter bottle, with a glass by the 
 side of it, a little more than half full of stout. There was 
 another glass on the opposite side of the table, near the door. 
 It was empty, but there appeared to be something like froth 
 at the bottom of it. A chair was beside Mrs. Hart, and 
 another opposite, away from the door, near the glass that 
 was partly full. I sent for Mr. Champneys, the surgeon, 
 directly. I searched the place almost immediately, but found 
 no small phial or medicine bottle. We suspected that some- 
 thing had been taken by her or given to her. There was a 
 middling-sized fire. I did not look into that." 
 
 Cross-examined by Mr. F. Kelly. " I had never seen the 
 prisoner before that day. It was nearly five o' clock. I saw 
 him go into the house. I heard no voice but hers on the 
 night in question, so that I could not have supposed they 
 were quarrelling. The screams I heard before leaving my 
 house were repeated several times. I cannot say whether 
 or not Mr. Tawell heard the observation I made about my 
 neighbour being ill. The surgeon, Mr. Champneys, on being 
 sent for, put his hand under the clothes of Sarah Hart, and 
 felt her heart. He then bled her. I held the basin for him. 
 Blood flowed from her ; about as much as would cover a 
 plate. I believe she was dead before she was bled. I 
 am aware that the deceased had received a present of a 
 box of apples some time before her death. She gave me 
 some of them; when I saw the box it was not full. It 
 would hold about a peck, but I did not see it when she first 
 received it." 
 
 Re-examined by Mr. Prendergast. "Not more than a 
 minute, if so much, elapsed, between the time I heard the 
 screams of the deceased and my going out of the house. It 
 was more than a week before her death that I saw the box of 
 apples. I cannot say how many there were in it; when I spoke 
 of a peck I meant that the box would hold about that quantity, 
 but the box was not full when I first saw it more than a 
 week before her death. I dare say there were about twenty 
 or two dozen apples in it when I first saw it. She gave me
 
 174 TRIAL OF JOHN TAWELL. 
 
 three or four. I saw some in the box since deceased's 
 death ; there may have been nine or ten." 
 
 A Mrs. Barrett then proved that she was sent for by the 
 last witness on the day in question. She brought some 
 water from the next room, which was in a large jug, and 
 poured some of it into the tumbler which had the froth in it. 
 " I rinsed the tumbler and threw the rinsings into the fire- 
 place. I poured some more into the tumbler and threw it in 
 the face of Mrs. Hart. I thought she was too far gone to 
 give her any to drink. I attempted to put some into her 
 mouth, but I do not think she swallowed any. I then 
 returned to my house, and sent a young person in my 
 service, an apprentice, for Mr. Champneys, who lives about 
 200 yards from Bath Place." 
 
 Cross-examined by Mr. Kelly. " I think it was about a 
 quarter to seven o'clock when Mrs. Ashley came for me. 
 When I came back again to Mrs. Hart's the surgeon was 
 bleeding her. When pouring the water down the throat of 
 the deceased I fancied that it caused her to foam at the 
 mouth. I did not perceive any foam on her mouth until I 
 tried to pour the water down." 
 
 John Kendal, examined by Mr. Prendergast. " I am the 
 waiter of the Jerusalem Coffee-house. Mr. Tawell is a sub- 
 scriber to it. About three o'clock on the 1st of January he 
 came to the coffee-house, and asked me at what hour we 
 closed the door at night. I told him at eight o'clock, and 
 asked him why, when he told me he was going to the west 
 end to dine, and could not be back until half-past nine 
 o'clock. He left a parcel and great coat with me, and said 
 he would call for them at that hour. He did call between 
 that hour and a quarter to ten o'clock, and I gave them 
 to him." 
 
 Witnesses were then called who traced the prisoner from 
 Slough to Eton, and then by rail to London, and proved 
 the sending of a telegraphic message after him. William 
 Williams, a sergeant of police, met the prisoner on the plat- 
 form ; put on a plain coat over his uniform and followed him 
 on the steps of the omnibus in which he rode as far as the 
 city. This witness's evidence is a mere repetition of part 
 of the opening statement of the counsel, and need not be
 
 TRIAL OF JOHN TAWELL. 175 
 
 repeated. The next witness, William Wiggins, proved taking 
 the prisoner into custody on the 2nd January. " On seeing 
 him in the Jerusalem Coffee-house, I asked him if he was 
 not Mr. Tawell. He said he was. I then opened my great 
 coat, and showed him by my uniform that I was a police 
 officer, telling him that I should take him into custody, as 
 he was the last person who was seen with a woman who had 
 been found dead at Slough on the previous day. He said, 
 ' I was not at Slough yesterday. I don't know anybody 
 there. I did not leave town all day/ I said he was 
 there, for he had been seen in an omnibus. In reply to 
 that remark he said, 'You must be wrong in the identity. 
 My station in society places me above or beyond suspicion.' 
 I did not observe anything particular in his manner when he 
 made that remark. I took him to Salthill. On arriving 
 there, the coroner's inquest was going on. I searched him, 
 and found on his person 12/. 10s. in gold, I/. 1*. 6d. in silver, 
 some halfpence, and a letter addressed to him from his 
 wife." 
 
 Cross-examined by Mr. Kelly. When you first spoke to 
 the prisoner in the coffee-house about a woman found dead 
 at Slough, did he not say that he came from Berkhampstead? 
 No ; but he said that he wished to go to Berkhampstead. 
 Did he not say, in reply to any of your remarks, that he 
 had come from Berkhampstead on the day on which you said 
 he had been at Slough? Yes; he afterwards said that he 
 had come, not from Slough, but from Berkhampstead. 
 
 Samuel Perkins examined. " I am an officer of police. I 
 received the prisoner into custody on the first day of the 
 inquest. I brought him to Eaton, to my own house. 
 Mr. Williams, prisoner's counsel, had an interview with him 
 next day (Friday). After that interview the prisoner said 
 to me, ( This unfortunate woman lived in my service about 
 two years ago.' Another constable, named Holman, came 
 into the room at that moment, and I told the prisoner that 
 we were police officers, and that what he said I should have 
 to report next day to the coroner. He said he had no 
 objection. He said also that he had been in the habit of 
 sending the deceased money, and that he had been pestered 
 by her writing to him for money ; that she was a very good
 
 176 TRIAL OF JOHN TAWELL. 
 
 servant when she was in his service, but that she was a bad 
 principled woman ; that she had written to him to say that 
 if he did not send her some money she would do something 
 would make away with herself; that he went down to her 
 house, and said he would not allow her any more money; 
 that she then asked him if he would give her a drop of 
 porter, and that he sent for a bottle of stout, of which each 
 had a glass; that she held her hand over her glass, and 
 said, ' I will, I will ; ' that she poured something out of a 
 small phial not much bigger than a thimble ; that she drank 
 a part of it, and that the remainder was thrown in the fire ; 
 that she then began to throw herself about in a manner 
 which the prisoner imitated by moving his shoulders to 
 and fro, and that she lay down on the hearth-rug ; that he 
 then went out, and that he did not think she was in earnest, 
 otherwise he would have called some one." 
 
 Cross-examined by Mr. Kelly. " I have been an officer 
 about twelve years, and have been seven years connected 
 with this county. On the morning of the last day of the 
 coroner's inquest I told the coroner that I had information 
 to give of the conversation I have detailed, and I understood 
 him to say that he would not take any more evidence, and 
 that the examination was closed. I, therefore, was not 
 examined." 
 
 Henry William Champneijs, examined by Mr. Prendergast. 
 " On the evening of the 1st of January I left my house 
 about ten minutes before seven o'clock, and ran to the house 
 of Sarah Hart. On seeing her, I felt her wrist, but could 
 not say whether there was a pulse or not. I was not certain. 
 I then put my hand under her clothes to feel her heart, and 
 while doing so, I thought I observed her jaw move, but I 
 felt no pulsation at the heart. I considered her dead. I then 
 bled her in the arm ; I did so because I thought it right not 
 to leave the house without trying every means. About an 
 ounce of blood flowed from her arm, but I still think she was 
 dead before I bled her. I put the things that were on the 
 table into a recess, and returned that evening, and took them 
 home with me. Next day I examined the body, but did not 
 find any external injury on it. By direction of the coroner, 
 on the same day (Thursday) I made a post mortem examina-
 
 TRIAL OF JOHN TAWELL. 177 
 
 tion of the body in the presence of Mr. Pickering, another 
 surgeon. On opening it I smelt the odour of prussic acid. 
 I mentioned something about it at the time to Mr. Pickering. 
 I examined the heart, which was quite healthy; I also 
 examined the lungs, and they too were healthy, but their 
 coverings showed adhesions of long standing. The bowels 
 were healthy, and presented nothing that could account for 
 death. I examined the stomach, but did not observe any- 
 thing on its internal coat worthy of notice. I thought it 
 had more mucus on its surface than is ordinarily perceived. 
 I took out the stomach and its contents, and preserved 
 them. I went next day to London, taking the whole 
 of the contents of the stomach in a bottle, and submitted 
 them to Mr. Cooper, the chemist, in the presence of his 
 son, of Mr. Pickering, and Mr. Nordblad, another surgeon. 
 The contents of the stomach indicated intense acidity. A 
 portion of the stomach was exposed to evaporation in a retort 
 which was first placed in a sand-bath. Sulphate of iron was 
 added to the liquid that came over it. It was a solution of 
 potassia. They remained together for some time. Muriatic 
 acid was added, and the result was Prussian blue. According 
 to my knowledge of pharmacy that could not have resulted 
 without the presence of prussic acid. I should imagine that 
 the prussic acid could not be produced by the decomposition 
 of any portion of the stomach. Mr. Cooper afterwards 
 tried the retort in a water bath, to obtain a lower temperature. 
 It must have been above boiling heat, and distillation took 
 place. The result could not possibly be produced from the 
 decomposition of the stomach. The liquid distilled over was 
 subjected to the same experiment as that produced by the 
 sand-bath, and the result was the same, Prussian blue. Nitrate 
 of silver was applied to the liquid, and cyanide of silver was 
 produced." 
 
 "With reference to the quantity of prussic acid required to 
 destroy life, the witness stated: " Less than a grain of real or 
 pure hydrocyanic (prussic) acid would be a fatal dose. Two 
 drachms of Scheele's acid would contain six grains. There 
 are cases on record of persons having died from prussic acid 
 without any smell of the acid being discoverable either in 
 the stomach or other parts of the body. The absence of 
 
 N
 
 178 TRIAL OF JOHN TAWELL, 
 
 smell is no proof that a person did not die from the effects 
 of prussic acid. Christison mentions a case of death from 
 prussic acid where no smell could be discovered. The 
 deceased in that case took three and a half drachms of 
 dilute prussic acid. I cannot say positively whether that 
 was the acid of the London Pharmacopoeia or Scheele's acid. 
 A patient died in an hospital in Paris from seven-tenths of a 
 grain. Prussic acid may be absorbed by the tissues, and the 
 fact of finding fifty grains of the London Pharmacopoeia acid 
 in the stomach, that is to say, one grain of the pure acid, 
 would not enable me to tell how much may have been there, 
 or how much may have been taken." 
 
 Would it be possible for a person who had taken a quan- 
 tity of prussic acid to leave the house and walk any distance? 
 Such person might, I think, walk a few yards. On the evening 
 of Thursday, the day after the deceased's death, I put half a 
 drachm of Scheele's acid into a tumbler, and filled the 
 tumbler with Guiness's porter, the smell of the acid was then 
 scarcely perceptible. 
 
 Cross-examined by Mr. Kelly. " I have been in practice 
 four years. I have never examined either internally or 
 externally the body of a person killed by prussic acid. I 
 have tried the effect of the acid on inferior animals in my 
 study during my apprenticeship, but in not more than four 
 cases. The animals were dogs. I helped to dissect them. 
 I have seen dissection of rabbits. I also saw a man who 
 had died through taking prussic acid; but I have no 
 experience in detecting the odour of prussic acid in the 
 human subject. I think that it may be taken without being 
 detected. I should expect that a dead body when seen soon 
 after death exhales a strong odour of prussic acid ; and if 
 death be rapid, all the cavities as well as the blood have the 
 odour." 
 
 Do you not believe that there must be something in 
 the mouth or breath to indicate the presence of prussic 
 acid if enough is taken to cause death ? I should always 
 expect it, but there may be exceptions. Did you not 
 smell this woman's mouth, and did you perceive any 
 odour of the kind ? No ; but I did the next day when
 
 TRIAL OF JOHN TAWELL. 179 
 
 the body was opened. Neither Mr. Pickering nor Mr. 
 Nordblad did, however. It was not a passing conjecture 
 of mine, I was positive of it. Is it true, after opening 
 the stomach, that you did not think you smelt it there ? 
 I did not smell it there. Is it not the property of 
 prussic acid, as it volatilizes, to emit a very peculiar 
 odour? Yes. Is it not called by a high authority, a 
 " penetrating, highly diffusive, and peculiar odour ? " Yes. 
 Is it not more likely to be detected when exposed, as this 
 was, to a heat of 212 degrees? Yes. And did you and 
 those with you try at every heat to catch a smell of prussic 
 acid without doing so ? Yes. When you drew some blood 
 shortly after death, was there any smell there ? I perceived 
 none. Would not epileptic patients be likely to die more 
 quickly from taking prussic acid than other persons ? I am 
 not competent to answer that question. Prussic acid is said 
 to act powerfully upon the nervous system. It is found in a 
 great number of substances, in apples for instance; and 
 probably in many substances in which it has never yet been 
 discovered. I agree with Christison in his opinion, in 
 respect to the formation of this acid. It is made from the 
 blood, bones, and horns of animals. It consists of 62.12 
 of carbon, fourteen of nitrogen, and one of hydrogen. 
 Those are the elements. They exist and may be obtained 
 from various substances in great quantities. They are in 
 cherry stones, and the stones of various fruits, and in many 
 seeds. They are to be found in the human saliva, but not 
 in the form of prussic acid. When taken it is perceptible in 
 the blood and breath, but most in the stomach. If in apple- 
 pips or other substances the smell would not be given until 
 disengaged by some process for that purpose. Well, then, 
 did Mr. Cooper, Mr. Nordblad, and Mr. Pickering during 
 the experiments for oxalic acid and other poisons fail to 
 perceive any smell at all of them ? Yes. Did not one 
 of you then, having exhausted those processes, come to 
 the conclusion that there must be prussic acid? Yes. 
 Did not Mr. Cooper then apply a process which would 
 set free prussic acid from apple-pips and other substances ? 
 I believe that is the process, but it was not carried 
 
 N 2
 
 180 TRIAL OF JOHN TAWELL. 
 
 to the full extent. I refer to the heat. When this new 
 process was applied the result was that prussic acid was 
 found. Did you smell it ? No. Did any one else ? 
 I believe not. Beyond the smell I perceived when open- 
 ing the body I smelt none at all. We did not make 
 any gas and burn it. I went to see the deceased as 
 soon as I was sent for. I first felt the pulse. I fancied 
 I felt a few beats, but I now imagine I was mistaken. 
 It might have been the pulse of my own finger. Is not 
 the analogy between animals and human beings dying of 
 prussic acid considered doubtful by the best authorities ? 
 Yes. The heart would continue to beat for a short time 
 after the pulse receded from the arms. The lungs might 
 be considered as slightly congested. I looked at the gall 
 bladder. The colour was natural. Does not your expe- 
 rience teach you that prussic acid would colour it blue ? 
 Yes. I opened the trachea ; but not the bronchial tubes, 
 so that I cannot tell whether there was water in them 
 or not. When I felt the pulse and heart of the deceased 
 I was satisfied she was dead. I saw a slight motion of 
 the jaw just before I was going to feel her pulse, and 
 I apprehend that she died then. I took the stomach 
 from the body eighteen hours after death. The contents 
 were turned into a jug or basin, and afterwards into a 
 bottle. I do not know to what particular purposes the 
 bottle had been previously applied. I did not wash it 
 out, but it was perfectly clean. I tied the neck over with 
 a piece of string. I locked it in the cellaret, and kept the 
 key until I took the bottle to London to Mr. Cooper, with 
 whom I remained experimenting four or five hours. Portions 
 of the contents were taken out to be tested. Mr. Cooper 
 kept them after that. I form my opinion from what I 
 have read as to the action of prussic acid on the whole 
 nervous system. The instance of the seven epileptic patients 
 is the smallest dose I have read of. The exact dose is not 
 determined yet. 
 
 Mr. Kelly (reading from Watson's Lectures on the 
 Practice of Physic] asked, Do you agree in this " A blow, a 
 fall, an electric shock, a tea-spoonful of prussic acid may
 
 TRIAL OF JOHN TAWELL. 1H1 
 
 cause death, and leave no vestige on the nervous system? 
 Yes. 
 
 On re-examination by Mr. Serjeant Byles the witness 
 stated, with reference to the smell of prussic acid, that some 
 might perceive it and some not, and it was the proper plan 
 for several to smell together, as some were more susceptible 
 of smell than others. " All animals, whether human or not, 
 die if they take prussic acid ; there is no difference in the 
 mode of its operation upon men and inferior animals. There 
 was no appearance of disease in the heart of the deceased. 
 Had there been any rupture of the coronary arteries, it would 
 have been apparent. I never kneAV of such a sudden disease 
 of the spinal marrow as to cause death. I know only of the 
 two cases mentioned by Taylor of the gall bladder having a 
 blue tint. The absence of a blue tint is no proof that a 
 person did not die by taking prussic acid." 
 
 Evidence was then given to prove that no bottle containing 
 prussic acid had been found in the deceased's house, not- 
 withstanding a diligent search had been made, and the ashes 
 of the fire-place sifted. 
 
 Mr. John Thomas Cooper was then called, who stated as 
 follows : " I am a chemist, and was formerly a lecturer on 
 chemistry and medical jurisprudence. Messrs. Champueys, 
 Pickering, and Nordblad called on me with the contents of 
 a human stomach for examination, and also with a bottle 
 containing porter, a glass, and a piece of a bun. I tested the 
 porter and bun for oxalic and hydrocyanic acid, but did not 
 find either. I tested the contents of the stomach for arsenic, 
 for opium, for sulphuric acid, for oxalic acid, for the mercurial 
 salts, and other metallic poisons, but did not detect any. I 
 then tested them for prussic acid, through the agency of sul- 
 phate of iron and a solution of potash, put into a retort, which 
 I placed in a sand-bath. When dissolved and well stirred 
 up I added some muriatic acid. The effect of adding 
 muriatic acid produced Prussian blue immediately. That is 
 a proof of the presence of prussic acid. I do not think the 
 sand-bath was of sufficient heat to decompose animal matter. 
 It is quite consistent that it should have been of sufficient 
 heat to cause these things to dissolve, and yet not of suffi- 
 cient heat to decompose animal matter. It would require
 
 182 TRIAL OF JOHN TAWELL. 
 
 between 600 and 700 degrees of Fahrenheit to decompose 
 animal matter. If fluid were not present I think it quite 
 possible that the sand-bath would decompose animal matter. 
 I also put some of the contents of the stomach (in a retort) 
 into a water -bath, and put into the water some salt, in order 
 to raise the temperature. By that means we can, instead of 
 212, obtain a temperature to 226. I used an adapter between 
 the retort and receiver, and had the receiver surrounded with 
 litmus paper, in order to keep it cool. The distillation was 
 conducted very slowly. I distilled off the first day about an 
 ounce of liquid. I could not discover the smell of cyanogen 
 in it. The contents of the stomach smelt strongly of beer, 
 of food, and the process of digestion. I applied the same 
 test to the clear liquid I distilled in this way as in the former 
 experiment, and it produced Prussian blue. The bottle which 
 contained the Prussian blue I produced from the sand-bath has 
 unfortunately been broken, but the blue which I produced from 
 the water-bath I have. As I was obliged to leave town next 
 day, I added nitrate of silver to a portion of the distilled liquid 
 from the water-bath, and about the same quantity was preci- 
 pitated. The product was therefore cyanide of silver, and 
 on my return to town I put it into a small retort, added a 
 very small quantity of muriatic acid, and carefully distilled 
 it over into a very cool receiver. About a drachm or a 
 little more distilled over. That liquid smelt of prussic acid. 
 It was in fact diluted prussic acid. Therefore, from the 
 cyanide of silver I got prussic acid, and I precipitated the 
 acid again with nitrate of silver, and formed cyanide of 
 silver again. I observed in the contents of the stomach 
 pieces of undigested apple. Prussic acid may be obtained from 
 apple-pips. I took the pips of about fifteen apples to obtain 
 prussic acid from. The result was the production of this 
 Prussian blue (showing an ounce bottle with a pale blue 
 liquid.) The quantity of prussic acid contained in it is 
 inappreciable. I do not think any chemist could estimate 
 the quantity, it is so small. The same degree of heat was 
 applied to distil the pips as in the other cases, but the dis- 
 tillation was conducted by means of a lamp, and not of a 
 bath. The contents of the stomach I conceive, from the 
 results of the tests I applied, to have contained about one
 
 TRIAL OF JOHN TAWELL. 183 
 
 grain of prussic acid, that is to say, fifty grains of the Lon- 
 don Pharmacopoeia, or twenty grains of Scheele's acid." 
 
 Cross-examined by Mr. Kelly. " Until this case I have 
 never examined the contents of a human stomach when a 
 person has been killed, or of a human stomach containing 
 prussic acid. Respecting the effect of prussic acid upon the 
 stomach or tissues of the body, my knowledge is only theo- 
 retical. Prussic acid, which I have smelt from its most 
 concentrated to its weakest state, has a peculiar smell. It 
 affects different persons differently. When I smell it, for 
 instance, it affects spasmodically the back of my throat. But 
 it loses its smell in combinations. I am not aware of what 
 quantity of prussic acid destroys life. I have no practical 
 knowledge on the subject. I began my investigation in this 
 case with the view of seeing if oxalic acid was present. I 
 took various portions of the contents of the stomach from 
 the bottle to test them. When I first opened the bottle I 
 dipped into it some litmus paper, which instantly became 
 red, showing the presence of some strong acid, from which 
 circumstance I was led to expect the presence of oxalic acid. 
 That was the reason I applied the tests for oxalic acid. Not 
 finding that, I tried for sulphuric acid. Not finding that, I 
 gave up searching for the acids, and tried for opium, &c. I 
 recognized the odour of beer more strongly in the contents 
 of the stomach than anything else. I did not trace the 
 smell of prussic acid in them, nor feel any spasmodic affection 
 in the throat on smelling them. I did not come to the con- 
 clusion, after trying for those acids and mercurial poisons 
 which I did not discover, that there was prussic acid in the 
 contents of the stomach, but I remarked to those present at 
 the time, ' Well, if this woman has taken poison, it can be 
 no other than prussic acid.' I found, also, undigested flesh 
 meat, some portions of apple, and a pulpy sort of mass of 
 which I could make nothing. Digestion had proceeded to 
 a certain point. I did not observe with the apple any pips, 
 either partially masticated or otherwise. I am not able to 
 say if the pips of one kind of apple contain more prussic 
 acid than another. There is a great difference between bitter 
 and sweet almonds the bitter contain a great deal of prussic 
 acid, and the sweet I believe none at all."
 
 184 TRIAL OF JOHN TAWELL. 
 
 Are there not an immense number of substances which 
 contain prussic acid ? That is a question I feel some diffi- 
 culty in answering, because strictly speaking, I do not think 
 prussic acid exists in any substance not even in bitter 
 almonds. I wish to explain what I mean, and it is this, 
 that prussic acid in a free state is so extremely volatile, that 
 it cannot possibly exist, unless in combination with some 
 other-substance. It is my opinion that prussic acid is a 
 11 product," and not an " aduct," that is to say, that in 
 consequence of its great volatility it cannot exist by itself. 
 You liberate it by combination or change. The elements of 
 it exist in a great many substances. Those elements on 
 taking new arrangements may produce prussic acid ; there- 
 fore do I feel that it is always a product, and that it does 
 not exist in any substance in a free state ; because if it did 
 it must be continually evaporating from that substance. 
 Are not the substances which are already known to con- 
 tain the elements of prussic acid, and from which it may be 
 produced, very numerous ? They are very numerous, cer- 
 tainly ; because all those compounds which contain carbon, 
 nitrogen, oxygen, and hydrogen may in my opinion, b 
 new changes, be made to afford prussic acid. All animi 
 substances, of whatever kind, contain those elements in 
 which are comprised the elements of prussic acid. I will 
 ask you one question more whether you agree with 
 Taylor in his Medical Jurisprudence, that " the odour 
 of prussic acid, which is said to be peculiar, may be found 
 when all other tests fail to prove the presence of that 
 acid ?" I do not believe it. As far as my experience 
 goes, it would lead me to the contrary conclusion. But if 
 I understand rightly, you do not smell prussic acid at all, 
 but feel its effects in another way ? Sometimes it has 
 produced a spasmodic constriction about my throat, without 
 my smelling the odour. At other times I have distinctly 
 perceived the odour of it. It depends, I think, very much 
 upon the state of the nasal organ at the moment. 
 
 By Mr. Serjeant Byles. The same peculiar sensation I 
 feel in the nostrils and back of the throat is, I think, also 
 felt by many on putting prussic acid to the nose, 
 
 I shall ask you but one more question. Did you some
 
 TRIAL OF JOHN TAWELL. 185 
 
 time before this trial communicate to the prisoner's solicitor 
 the nature of the evidence you were to give ? I did, ahout 
 a fortnight ago. 
 
 By the Judge. Have you or have you not a douht upon 
 your mind, from' the result of your experiments, as to the 
 existence of prussic acid in the contents of the stomach 
 which you examined ? None whatever, my lord. Have 
 you or have you not any doubt that prussic acid may 
 exist without being smelt? I have no doubt whatever 
 upon the subject. If there was an absence of smell, would 
 you suppose that prussic acid was present in the shape of 
 a salt, and that therefore you did not smell it ? Absence of 
 smell may arise from dilution; it may also arise from being 
 covered by the smell of other substances. Do you in this 
 particular case ascribe the absence of smell to the circum- 
 stance of its being in the shape of a salt ? No ; because 
 it could not exist in the stomach as a cyanide of potas- 
 sium, which is a salt, or as a cyanide of soda, which is a 
 salt, when another and more powerful acid was present ; as, 
 for instance, muriatic acid, which in this case was found in a 
 considerable quantity, it being an acid generated by the pro- 
 cess of digestion. Do you not believe that there was 
 also acetic acid present, and is not that a strong acid ? I 
 have no doubt that there was acetic acid present, and 
 it would have a greater affinity for soda or potash than 
 prussic acid. Are you of opinion that prussic acid would be 
 formed by the putrefaction of the contents of the stomach ? 
 I think not. 
 
 Charlotte Boward, a young woman who had lodged at the 
 deceased's house, proved that Tawell was in the habit of 
 coming to see the deceased, and that on one occasion deceased 
 had been affected by illness after his visit, and stated it had 
 arisen from drinking a glass of porter. Witness had seen 
 thirteen sovereigns on the table after one of the prisoner's 
 visits. 
 
 Edward Weston Nordblad, a surgeon, who had been called 
 in on the day in question to the deceased's house, corroborated 
 the evidenceof Mr. Champneys and Mr. Cooper as to the finding 
 of the prussic acid in the stomach, and the nature and pro- 
 perties of the acid generally. He had experimented on dogs
 
 186 TRIAL OF JOHN TAWELL. 
 
 with prussic acid, and had found no smell on opening their 
 bodies eighteen hours after death, nor in their mouths. A 
 paper having been handed to the witness, he stated it was a 
 proper prescription for varicose veins, and thought prussic 
 acid might be used successfully for skin diseases to alleviate 
 pain. Rupture of the coronary arteries would be sufficient 
 to produce death ; also forcing water down the throat of a 
 person in a state of syncope might cause suffocation and sud- 
 den death. 
 
 As the evidence of Mr. Champneys and Mr. Cooper has 
 been given at some length, it is not necessary to state more 
 of this witness's evidence, nor of that of the next one called, 
 Mr. Pickering, another surgeon, as they both confirm the 
 testimony of Mr. Champneys and Mr. Cooper in all material 
 particulars, and were both of opinion that the death of the 
 deceased had been caused by prussic acid. 
 
 Henry Thomas, sworn and examined by Mr. Serjeant 
 Byles. " In the beginning of this year I was shopman to 
 Mr. Hughes, a chemist, 89, Bishopsgate Street. Mr. Hughes 
 is since dead. I remember the 1st of January perfectly well. 
 I saw the prisoner on that day ; he came between the hours 
 of twelve and two o'clock. He was dressed in a great coat, 
 and wore the usual garb of a Quaker. He asked for two 
 drachms of Scheele's prussic acid. He brought a small half- 
 ounce phial, which had a regular label, ' Scheele's prussic 
 acid.' He gave me that bottle to put the prussic acid in ; 
 it had a glass stopper, which I could not at the time get out, 
 in consequence of which I gave him a bottle of our own. I 
 believe that when I was about to put a label on it he said, 
 ' You need not put a label on it ;' but I will not swear that 
 he did so. He said he required it for an external applica- 
 tion, and he mentioned varicose veins. He paid me fourpence, 
 and I entered it in the book at the time. He came again 
 the next day between the hours of ten and twelve o'clock in 
 the morning, and asked for two drachms more. He said he 
 had had the misfortune to break the other bottle. He took 
 the same quantity in the bottle he originally brought. I 
 have frequently seen him before in the shop, and sold him 
 articles. I might have sold him prussic acid before, but not
 
 TRIAL OF JOHN TAWELL. 187 
 
 to my recollection. He had told me that he had been a 
 chemist and apothecary abroad." 
 
 Cross-examined by Mr. Kelly. " The prisoner told me he 
 was suffering from varicose veins, and I judged that he was, 
 from the medicines I sold him. He rubbed his leg. (A paper 
 was shown to the witness.) That would be a good external 
 application for the irritation produced by varicose veins/' 
 
 Mr. Baron PARKE. What is that? 
 
 Mr. KELLY. Scheele's prussic acid. 
 
 Witness, "That prescription is in the handwriting of 
 Dr. Addison. I do not believe that Scheele's prussic acid 
 could be mixed with a drink and taken as a poison, and not be 
 smelt after death. I do not think porter would disguise it. 
 I have tried prussic acid on a parrot, which, being ill, a lady 
 wished to have killed. I put about thirty drops of Scheele's 
 prussic acid, and injected them down the throat of the bird 
 by a glass syringe. There were three women present, and 
 they were compelled to leave the room, the scent was so strong 
 and suffocating. The bird was afterwards stuffed. On another 
 occasion I mixed thirty drops of the acid with eleven ounces 
 of porter, and found the odour of the acid slightly perceptible. 
 I did not particularly observe the difference between the time 
 when the froth was on, and when there was none. It is the 
 property of this acid to give out a smell while volatilizing. 
 Apple-pips contain prussic acid. I have assisted in extracting 
 it from the pips of fifteen small apples. Two grains and a 
 quarter of cyanide of silver were obtained. Then one and 
 two tenths of a grain of pure hydrocyanic acid were pro- 
 duced." 
 
 Re-examined by Mr. Serjeant Byles. "I made the first of 
 these experiments on the 9th of this month at the London 
 Hospital, at the request of Mr. Bevan, solicitor to the pri- 
 soner. I had never before produced prussic acid from 
 apples/' 
 
 Henry Smythe, clerk to Messrs. Barnett, Hoare, & Co., 
 bankers, sworn, and examined by Mr. Serjeant Byles. " I 
 remember seeing the prisoner, who had an account with us, 
 on Wednesday, between two and three o'clock, at the banking- 
 house. He drew a check for 14/., which I paid him in gold
 
 188 TRIAL OF JOHN TAWELL. 
 
 in money, however. His account was that day over- 
 drawn" (a). 
 
 Cross-examined by Mr. Kelly. "The account was over- 
 drawn 56/. We discounted a bill on the Australasia Bank 
 for him on the 10th of January ; the amount was 682/., 
 which was placed to his credit. The account was overdrawn 
 on the 13th of December, when he drew a check of 100/. He 
 said he had permission to overdraw from Mr. Gurney Hoare, 
 one of the partners." 
 
 Sarah Bateman examined. " About five years ago deceased 
 told me she was pregnant. I remember on one occasion taking 
 tea at her lodgings with the prisoner. Sarah brought in the 
 tea and took the things away again. She then came in and sat 
 down by my side. I said, ' I know, Sarah, what you are 
 going to speak about, and we had better begin/ She got up 
 and seemed to put herself very much out of the way, and 
 showed a disposition to vindicate her master, saying it was 
 not the case. He said he was about to get married to Sarah 
 Cutforth (his present wife), and if those things were rumoured 
 about it would make a very great difference. I said, if I had 
 said more than what was right the law was open, and 
 Mr. Tawell might punish me. He laughed, and begged of 
 Sarah not to excite herself so much ; he said he was about to 
 be admitted as a Friend, and should not like such things to 
 be talked about that was her pregnancy. She said she 
 would be dead to the world from that time ; that no one 
 should know what became of her, not even her own mother." 
 
 Mr. F. Kelly then commenced his speech in defence of the 
 prisoner. Although the honourable care and caution of his 
 
 (a) In the recent case of Thomas Hartley Montgomery, who was tried 
 for the murder of Mr. Glass, the cashier of the Northern Bank in New- 
 town Stewart, Ireland, in which it was proved that the murderer carried 
 away with him several hundred pounds of bank notes on his person, 
 evidence as to the pecuniary position of the accused, in order to show 
 a motive, was rejected by the judge who presided at the trial ; yet in 
 the case of Tawell, where pecuniary motives were perhaps not so evi- 
 dent, it was admitted. The attention of the Crown prosecutor was after- 
 wards called in Montgomery's case (the jury being unable to agree in the 
 first trial, and in consequence discharged) to the case of Tawell ; and on 
 the second trial, after some argument, evidence of pecuniary embarrass- 
 ment was admitted. But on the second trial the jury again did nut 
 agree, and the case is still undecided.
 
 TRIAL OF JOHN TAWELL. 189 
 
 learned friend had led him to abstain from anything that 
 might press unfairly against the accused, the jury must have 
 learned from the public newspapers that he had committed 
 in early life an offence against the laws ; but since that, lie 
 had atoned for his offence by a life of industry, kindness, 
 and bounty. That fact was the key to many of the subter- 
 fuges and evasions which had marked his conduct in connec- 
 tion with this charge. Having been banished from his 
 country for his early offence, he had recovered his standing in 
 society, and down to the present moment enjoyed the respect 
 and esteem of many friends, while he had acquired some 
 amount of worldly wealth. He (Mr. Kelly) would show that 
 the alleged motive for committing the crime of murder, that 
 of embarrassed circumstances and inability to continue a 
 pecuniary payment, did not exist. He would show also that 
 witnesses for the prosecution came prepared to support mere 
 matters of theory, speculation, and opinion, and that their 
 evidence, although given under the sanction of an oath, was 
 not of any weight. He would show, too, that the indefensible 
 language and conduct of the accused in connection with this 
 case might be accounted for on other grounds than that of 
 his having been guilty of murder. 
 
 Before the prosecution could call upon the jury to condemn 
 the prisoner to death it must be proved that the deceased 
 died of poison, and that that poison was prussic acid taken 
 into the stomach. He quite agreed with his learned friend 
 that direct evidence could not always be expected to prove a 
 charge of murder; but upon the question that the woman 
 died of poison the jury were bound to demand positive and 
 direct evidence. It was the duty of the prosecution not only 
 to prove the death, but the cause of the death, in a case of 
 this kind; and upon that principle he called upon the jury 
 to have, before they sent the prisoner to a horrid and igno- 
 minious death, evidence that the woman died of taking 
 prussic acid. 
 
 What were the jury called upon to believe? A woman in 
 health, as it appeared, had died suddenly, and the prosecutor 
 asked the jury to take away the life of the prisoner on the 
 supposition that she had died from prussic acid, and not 
 from any one of the numerous causes of sudden death. If
 
 190 TRIAL OF JOHN TAWELL. 
 
 ever there was a case in which the blessed principle of our 
 law should be regarded, that there should be positive proof of 
 guilt, this was the case. Suppose it were stated that a person 
 was poisoned by laudanum, would the jury convict, or the 
 judge suffer the case to go to the jury, when they heard from 
 the witness for the prosecution, " I never knew a case of a 
 person dying from taking that drug ?" No, they would ask 
 for some one who could speak of the effects of laudanum upon 
 the human system of his own knowledge, and not from what 
 he had read in books. Those witnesses were irresponsible ; 
 yet they called upon the jury to sacrifice that man upon the 
 ground only of what they had read in books, and not upon 
 that of actual experience. Unhappily this country was not 
 without experience on this subject. It appeared that of thirty- 
 nine cases, in no great length of time, poisoned by prussic acid, 
 only two had been charged with murder, and of all the medical 
 men who had seen and examined all those cases the prosecu- 
 tion had brought one. There were many of such witnesses 
 who could have deposed to whether there was a smell or 
 not a smell after death, or whether there was a scream or no 
 scream, or gorged lungs or not, instead of being left to the 
 uncertain opinions of Mr. Champneys, Mr. Nordblad, and 
 Mr. Pickering, three very young and inexperienced men, of 
 little practice, whose opinions did not agree with each other, 
 and who never saw man, woman, or child who had been 
 poisoned by prussic acid. 
 
 It appeared from their evidence that there were doubts, 
 only doubts, as to the quantity of prussic acid necessary to 
 cause death, and as to all the effects and operation of the 
 poison, the opinions of the witnesses not being derived from 
 experience, but being founded on books containing con- 
 flicting opinions and partially reported experiments. There 
 was no positive evidence of the quantity of poison in the 
 stomach of the deceased, nor of the source whence it was 
 derived. What was the quantity sufficient to cause death ? 
 That was a question upon which the jury had to make up 
 their minds at the very outset. According to the published 
 statistics the number of sudden deaths was 1 in 99 ; so that 
 there were about 3000 sudden deaths in the course of a year. 
 Here was a woman who had died suddenly, and it was said of
 
 TRIAL OF JOHN TAWELL. 191 
 
 prussic acid. How much was there in the stomach? Witnesses 
 could prove the quantity of arsenic or opium sufficient to 
 cause death; but science was in the dark with regard to 
 prussic acid. Would that jury be the first to decide such a 
 question in the absence of positive evidence, and resting only 
 upon the opinions of persons who had formed them from 
 reading books, and knew no more than the jury might learn 
 in half an hour by reading ? Those books were written by 
 persons now living ; why were they, or some of them, not 
 called to give positive evidence ? The witnesses had said at 
 least a grain of prussic acid existed in the woman's stomach, 
 but they had not proved upon their own knowledge and 
 experience that a grain was sufficient to cause death. They 
 mentioned one case in which so small a quantity had killed a 
 person ; but that case they read in Taylor, who copied it 
 into his book from some other quarter, and the statement of 
 the case was full of errors. 
 
 He would call their particular attention to the part of the 
 book referred to by Mr. Champneys, who had no more prac- 
 tical knowledge of the quantity of prussic acid that would 
 cause death than any one else in court, and with whom, as 
 with the other medical witnesses, it was nothing but guess- 
 work. The part of this work on medical jurisprudence by 
 Mr. Taylor referred to, stated that a person having taken 
 diluted prussic acid by mistake to the amount of one and a 
 half drachm of Scheele's acid, spasms and tetanus were pro- 
 duced, from which the patient did not wholly recover for 
 thirteen days. It also stated, that " admitting the strength 
 of the acid to be as represented, this is the largest dose known 
 to have been taken without causing death." Would it be 
 just on the supposed validity of an opinion such as that, 
 found in a book respecting which he had not the power of 
 putting a single question, to ascertain whether or not there 
 was any error in it would it be just on such testimony, the 
 book itself saying, " If the strength of the acid be correctly 
 represented/' to condemn a man to death ? If the strength 
 of the acid were not correctly represented, the deduction was 
 incorrect, and that being incorrect, the whole basis of the 
 medical testimony tumbled down. They had therefore no 
 sworn evidence whatever to clear up the doubts which
 
 192 TRIAL OF JOHN T A WELL. 
 
 existed upon the question of what quantity of prussic acid 
 would cause death; they had nothing but a reference to 
 these books, which contained nothing but speculative 
 opinions. If he had the authors of them on the table to 
 examine, he might perhaps be able to arrive at some more 
 definite conclusion; but without that, he maintained that 
 the whole basis of the medical evidence fell to the ground. 
 Then with regard to the question of smell, the learned 
 counsel contrasted the evidence of the medical men, showing 
 in it great discrepancy. Mr. Champneys fancied in one case 
 and proved in another the existence of the smell of prussic 
 acid from the contents of the stomach, while Mr. Nordblad, 
 notwithstanding his acute powers of smell, could not discover 
 it at any period. 
 
 The learned gentleman then applied himself to the evidence 
 of Mr. Cooper, respecting his examination of the contents of 
 the stomach, which examination he had admitted to have 
 been incomplete, and also to his analysis of apple-pips, which 
 he also admitted to have been incomplete, as he was not able 
 to say how much prussic acid he had obtained from the pips 
 of fifteen apples. He wished to impress upon the jury this, 
 that next to bitter almonds there was no substance which 
 contained more prussic acid than the pips of apples, the 
 quantity differing according to the nature of the apple ; 
 some descriptions of apples containing it in a great quantity, 
 and in such a form as, in the human stomach particularly, if 
 swallowed whole, or but slightly masticated, would render 
 its smell imperceptible. Mr. Cooper concluded, that because 
 he extracted one-fourth of a grain from a portion of the con- 
 tents, the rest of the contents contained it in the same ratio, 
 that the acid was equally diffused through the whole, and 
 that if he was right in his recollection of the quantity he 
 had used in the former experiments, a fourth of a grain 
 would prove the existence of an entire grain in the entire 
 contents. Now, seeing that he only spoke from recollection 
 of the quantity, and seeing also that he had admitted in his 
 evidence that he found very little of the acid the first time, 
 more the next, and still more the third, thus showing that 
 as he got nearer to the bottom of the contents he got more 
 of the solids, and of those portions of the contents that would
 
 TRIAL OF JOHN T A WELL. 193 
 
 produce prussic acid, observing these things, which he 
 (Mr. Kelly) begged of the jury calmly to do, he did think it 
 was not evidence upon which they could agree to take away 
 the life of a fellow -creature. 
 
 In opposition to this evidence the learned counsel replied 
 on that given by Mr. Thomas, in which that witness admitted 
 that he had extracted half a grain of prussic acid from the 
 pips of fifteen apples, and on the possibility of accounting 
 for the presence of prussic acid in the contents of 
 deceased's stomach by the fact of apple and other substances 
 containing prussic acid having been found in those contents. 
 Supposing that the pips of the apples produced a fourth of a 
 grain ; suppose there was some little in the cake which she 
 had eaten ; suppose there was some in the saliva which she 
 must have swallowed in a large quantity when masticating 
 the apples, and which was known to contain much prussic 
 acid -, suppose there was some in the animal substances, and 
 although it was stated that they would not yield prussic acid 
 without being subjected to a greater heat than they had been 
 subjected to, yet it was known that when undergoing decom- 
 position prussic acid was constantly being evolved ; suppose 
 these things, put together all these probabilities, keeping in 
 mind that they had positive evidence that the pips of fifteen 
 apples produced half a grain of prussic acid, and he asked 
 them how they could, if they did not wish to commit murder 
 themselves, convict the prisoner of that crime ? Again, 
 there was the fact that the woman was in a state of syncope, 
 and that she was choked by her neighbour pouring water 
 down her throat. Again, how many causes of sudden death 
 were there? The late Serjeant Andrews, in a moment of 
 aberration of mind, cut his throat. The wound was sewn up, 
 but a few days afterwards it burst out afresh, and he died. 
 Who could doubt that the cause of his death was the cutting 
 of his throat ? But on investigation it turned out that the 
 cause of death was the rupture of a blood-vessel. Suppose a 
 person had been tried for inflicting that wound, and the 
 coincident fact had not been revealed, would not the person 
 have been in danger of being convicted of murder ? There- 
 fore, the jury should be cautious, and take into considera- 
 tion all the coincidences of this case. His learned friend
 
 194 TRIAL OF JOHN TAWELL. 
 
 had imputed to the prisoner a motive for committing murder. 
 Now he would not deny that by the deceased woman he had 
 two children. That was an act of immorality, and if the 
 prisoner had not bitterly repented it, he had at least bitterly 
 suffered for it already. He allowed that woman about I/, 
 a week. Would the saving of that sum be a sufficient reason 
 with a person in his circumstances to commit murder ? And 
 would it be politic in him to destroy her, and bring upon 
 himself the care of bringing up his children, and of introducing 
 them perhaps into the family of his present wife ? Then as 
 to his circumstances, the evidence of the banker's clerk had 
 shown that they were not embarrassed. 
 
 Mr. Kelly then proceeded to contend that the prisoner 
 supposed the deceased to be acting when he left, and that to 
 alarm him she might have pretended to put something in the 
 stout, camphor, for instance, of which one of the phials found 
 in the house smelt. Not that he meant to imply that the 
 woman had poisoned herself; for he did not believe she had 
 died of poison at all, but from some one of the many causes 
 of sudden death. As to other circumstances, true he evaded, 
 and when he did not evade he told a direct untruth. But 
 was that evidence against him of having committed murder ? 
 He had an affectionate wife at Berkhampstead, with whom 
 and his children he was living happily, when the police 
 officer challenged him, and he for the first time heard of the 
 death of the woman, and it was natural for him, coupling the 
 recollection of his former life with it, a life upon which he 
 could not fall back, to deny any knowledge of the deceased. 
 In common justice, while they could not justify his departure 
 from truth, it would be uncharitable to conclude on that 
 account that he was guilty of murder. True he bought 
 Scheele's acid. Why ? He suffered from varicose veins in the 
 leg, and it was prescribed for him. Besides, he had been in 
 the habit of purchasing it at the same shop for more than a 
 year. There was no proof that he had that prussic acid at 
 Slough. If the prisoner had evaded and departed from the 
 truth, he hoped the jury would not on that ground conclude 
 he had committed murder. A man might commit an offence 
 in early life and retrieve himself; he might under painful 
 circumstances be guilty of subterfuge ; but he rested the
 
 TRIAL OF JOHN TAWELL. 195 
 
 defence of the prisoner mainly upon these confident grounds, 
 that there was neither motive nor temptation to so horrible 
 a crime, and that the jury would not be the first to break 
 through that great and blessed principle of justice, that where 
 there was a doubt the accused should always have the benefit 
 of it. Looking to the nature of the case, and the doubts and 
 uncertainties with which it was surrounded, he did confi- 
 dently expect a verdict of acquittal. 
 
 Witnesses to character were then called, and the court 
 adjourned. 
 
 On the meeting of the court the next morning Mr. Baron 
 Parke commenced his charge. The summing up of the 
 learned judge is often referred to as one of the most concise, 
 and at the same time masterly and exhaustive expositions of 
 the duties of a jury in criminal cases that have been delivered. 
 It is given, the principal parts at least, nearly verbatim. 
 
 The learned judge proceeded to say that it now became 
 their duty to give their deliberate consideration to the merits 
 of this important case, and to pronounce upon the guilt or 
 innocence of the prisoner, who stood charged with a crime 
 which he might say was unparalleled in the history of human 
 wickedness. The question was one of fact and entirely for 
 their consideration, because, as they were aware, they were 
 alone the judges upon all questions of fact. He would state 
 to them such questions of law as were necessarily connected 
 with the decision of the case ; and it would be their duty to 
 receive and act upon the propositions he would lay before 
 them in that respect. He hoped, and he was sure he was 
 not wrong in believing, that they would dismiss frojn their 
 minds every impression that might have been created upon 
 them out of doors, either from what they had heard in con- 
 versation or read in newspapers in reference to this case. 
 He also felt it his duty to warn them against the impressions 
 sought to be made upon them yesterday by the able and 
 ingenious speech by the prisoner's counsel. They were 
 aware that the law respecting criminal trials had been recently 
 altered. So far back as the history of the law went, and 
 during the greater portion of his (Mr. Baron Parkers) pro- 
 fessional career, which was not a short one, the practice had 
 been this the counsel for the prosecution simply stated the 
 
 o 2
 
 196 TRIAL OF JOHN TAWELL. 
 
 case, but without drawing any inferences, in order that the 
 jury and the prisoner might be informed of the facts to be 
 given in evidence against him, thus abstaining from any 
 observations that could influence the mind of the jury one 
 way or the other ; the counsel for the prisoner was at liberty 
 to cross-examine the witnesses and raise objections in point 
 of law : the result of which mode of trial was, that the minds 
 of the jury were brought to the consideration of the case 
 uninfluenced by any observations not absolutely called for 
 by its merits. It had pleased the legislature to alter that 
 mode of conducting proceedings in criminal cases, and he 
 was far from objecting to the alteration, which he thought a 
 wise one. By. that alteration counsel for the prisoner were 
 now at liberty to address to the jury such observations as 
 they pleased on behalf of the accused ; the result of which 
 was to throw an additional and a difficult duty upon the 
 judge, for whom it became necessary to assume a line calcu- 
 lated to dissipate the effects which those observations as far 
 as they appealed merely to the feelings of the jury, might 
 have produced upon their minds. 
 
 Having said so much respecting the nature of their duty 
 he would tell them what the case was, and how it was to be 
 proved. It was to be proved by circumstantial evidence 
 the only evidence, as they had been told, which in cases of 
 this kind could possibly lead to the discovery of the truth. 
 The crime was one which no human eye observed, and which, 
 like most atrocious crimes, was committed in secret. The 
 law had therefore wisely provided that direct proof was not 
 necessary. On the other hand, it was equally true that the 
 circumstantial evidence should be so clearly proved, and so 
 closely connected together, as to satisfy the mind of a jury 
 as much as if they had positive evidence of the fact. This 
 being the case, he would recommend them to act upon the 
 rule which he always laid down, viz., first to consider the 
 facts which had been distinctly proved, and then to con- 
 sider whether all those facts were consistent with the 
 supposition that the prisoner was guilty of the offence 
 charged. If they thought those facts all consistent with 
 that supposition if they thought at the same time that there 
 was nothing inconsistent with it, and he could offer nothing
 
 TRIAL OF JOHN TAWELL. 197 
 
 for their consideration, except the previous character of the 
 prisoner, and the supposition that no man could be guilty of 
 so atrocious a crime, which should weigh but little, as they 
 knew that such crimes were committed then must they see 
 whether those facts were inconsistent with the prisoner's 
 innocence, taking care to remember that the existence of the 
 crime was not inconsistent with the other facts of the case. 
 
 The prisoner's counsel admitted those facts, but insisted 
 that it was a rule of law that there should be positive proof 
 of death having been caused by poison, and of the presence 
 in the stomach of a sufficient quantity of poison to produce 
 death. That was not true. It was not necessary to give 
 direct and positive evidence in every step of the case ; because 
 between such and circumstantial evidence there was no dif- 
 ference, if the latter satisfied the jury that death was 
 occasioned by poison. It was not necessary to prove what 
 quantity of prussic acid would destroy life by the testimony 
 of a person who had actually seen a human life destroyed by 
 it ; neither was it necessary to prove that such a quantity as 
 would destroy life had been found in the stomach. The jury 
 should consider all the facts of the case together, and decide 
 in their own minds whether the prisoner had or had not 
 administered poison to the deceased, and whether she had 
 died from its effects. The only fact required to be positively 
 proved was the finding of the body, when such was possible 
 he said possible, because in the case of a man being thrown 
 overboard at sea, the body could not be found. 
 
 The learned judge next addressed himself to the facts of 
 the case. The prisoner at the bar, he said, stood charged 
 with the crime of murder by administering prussic acid. It 
 was not necessary in point of law that proof should be given 
 that the precise poison named had destroyed life. The 
 inquiry was the same whether the prisoner was charged with 
 destroying life by poison or by prussic acid. He agreed with 
 the learned counsel for the prisoner that it was necessary to 
 prove that poison had been administered ; and then came the 
 question whether it had been administered by the prisoner 
 or the deceased herself. The only allegation that she had 
 administered it was made by the prisoner, and if the jury 
 thought his extraordinary story of the matter true they
 
 198 TRIAL OF JOHN TAWELL. 
 
 would give him the benefit of such belief. If, on the other 
 hand, they thought his story untrue, then they would have 
 to see whether upon the whole facts of the case they could 
 come to the conclusion that he had administered the poison 
 himself. 
 
 The learned judge then referred to the testimony of 
 Mrs. Ashley and other witnesses, showing that the deceased 
 was in good health previous to the discovery of her lifeless 
 body, and also to the testimony of Mr. Champneys, from 
 which it might fairly be inferred that her death was not the 
 result of any internal disease or any natural causes. Sup- 
 posing it occurred from prussic acid (and the learned judge 
 quoted the evidence upon the point), they had the statement 
 of the counsel to deal with that it might have been generated 
 in the stomach. Let them see what was opposed to that. 
 They had the evidence of two witnesses, Messrs. Champneys 
 and Pickering, to the effect that they had observed the smell 
 of prussic acid in the stomach of the deceased the day after 
 her death. They had the evidence of Mr. Cooper to show 
 that on the next day, by the application of an infallible test, 
 he discovered the presence of prussic acid in the contents of 
 the stomach. They had also evidence to show that the 
 quantity of apples he found therein was very small, that he 
 discovered no pips amongst it, that it was in the pips only 
 that prussic acid was contained, and that prussic acid could 
 only be obtained from them when subjected to the process 
 of distillation. This was very strong evidence to show that 
 prussic acid could not have been produced in the stomach by 
 the distillation of apples prussic acid having been smelt by 
 two medical men before it was possible for it to have been 
 produced from distillation. 
 
 The jury should also look to the moral evidence of the fact 
 that prussic acid was found very soon after a sudden death 
 for which the presence of prussic acid would account. They 
 must, moreover, in considering this part of the case put all 
 the facts of it together; they must look to the previous 
 conduct of the prisoner, and to the circumstance of prussic 
 acid having been in his possession on the day of deceased's 
 death, and not in his possession on the following day. With 
 regard to the alleged differences of opinion as to whether the
 
 TRIAL OP JOHN TAWELL. 199 
 
 smell of prussic acid was a test or not of its presence, he 
 thought they could come to no other conclusion after the 
 evidence they had heard than this that smell was a proof of 
 its presence, but that the absence of smell was no proof of its 
 absence. Mr. Champneys could not smell it when the froth 
 was on the porter, but could when the froth was removed. 
 Mr. Nordblad poisoned two dogs, one with three the other 
 with twelve grains of prussic acid; put his nose to their 
 mouths after death, but did not perceive any peculiar smell. 
 Mr. Champneys put his nose to the mouth of the deceased, 
 but did not discover the smell of prussic acid, which he after- 
 wards did discover in the contents of the stomach. 
 
 They had been told that they must have proof of that fact 
 from persons who had had practical experience upon the 
 subject, and who had absolutely witnessed deaths from prussic 
 acid. They had also been told that they must have direct 
 proof of the presence of such a quantity of prussic acid in the 
 stomach as would cause death. But the law did not require 
 any such proofs. The jury had heard the evidence of several 
 scientific men of men who had read the most authentic 
 works upon the subject, and some of whom had tested the 
 opinions contained in those works by experiments on animals ; 
 and it was for the jury to say whether they were satisfied 
 with that evidence, because, if they were, it was in conformity 
 with the law. Those gentlemen were of opinion that a very 
 small quantity of prussic acid a grain, or even less than a 
 grain where taken into the stomach, was sufficient to cause 
 death. Then they had Mr. Cooper stating in evidence that 
 from the experiments which he had made he had not the 
 slightest doubt that the stomach of the deceased contained 
 at least a grain, if not more, of pure prussic acid. On the 8th 
 of February, after previous experiments on portions of the 
 contents of the stomach in which he discovered prussic acid, 
 he made further experiments upon the remaining contents of 
 the stomach, and found in them also prussic acid, the pre- 
 cise quantity of which he ascertained. Adding to this 
 evidence the fact, which they all knew from persons who had 
 tried experiments, that a very small portion indeed of prussic 
 acid was sufficient to destroy the life of animals, and suddenly; 
 then coupling with that fact the circumstance of prussic
 
 200 TRIAL OF JOHN TAWELL. 
 
 acid having been taken by the deceased before seven o'clock on 
 the evening of the 1 st day of January ; then adding to all 
 the entire conduct of the prisoner throughout the transaction, 
 it would be for the jury to say whether they had any doubt 
 upon their minds that the poison had been administered by 
 him, or whether they believed that it had been taken by the 
 deceased herself. 
 
 The learned judge then reminded the jury what the entire 
 conduct of the prisoner had been, beginning at his first 
 interview with the waiter at the Jerusalem Coffee-house, 
 succinctly tracing his movements to the close. When coming 
 out of the house in Bath Place on Wednesday evening, im- 
 mediately before the deceased's death, he was seen and met 
 by Mrs. Ashley, who said he was much agitated. When he 
 got from that to the railway station at Slough he returned 
 in an omnibus as_ far as the turn to Herschel -house under 
 the excuse of going there, but to which he did not go, having 
 come back to the station in time for the quarter to eight o' clock 
 train. When taken into custody next day he made a false 
 representation for some purpose or another. Whether his 
 object in doing so was merely to keep from his wife the 
 knowledge of his visits to Bath Place, or whether he was 
 desirous of concealing from every one the fact of his having 
 gone there on the particular day in question, was for the jury 
 to determine. When taken into custody he denied that he 
 was known to any one at Slough. That might have been 
 true to the letter, because it was not at Slough, but near it, 
 that the deceased had resided ; but then why did he tell a 
 deliberate falsehood in stating that he had not left London 
 that day at all ? It was for the jury to consider whether 
 his doing so did not show that he had been guilty of some 
 act which required concealment. It might be quite true 
 that he did not wish to have his visits to a woman who 
 doubtless had formerly been his mistress known to his wife, 
 or even to anybody else; but if he had been a perfectly 
 innocent man and present at the death of the deceased, one 
 would think that he would have replied at once to the 
 remark " that he had been seen at Slough, and that a dead 
 woman had been found there," by saying that he happened 
 to have been there when her death took place.
 
 TRIAL OF JOHN TAWELL. 201 
 
 He, however, stated that he had not been there at all, 
 although by his subsequent story to the police-officer Perkins, 
 he admitted having been at her house immediately before 
 her death, and even said he had seen her pour something 
 from a small phial into her glass as if she intended to poison 
 herself. It was to be observed that he mentioned nothing of 
 this extraordinary statement until after he had been brought 
 to Slough and had had a consultation with his counsel. If 
 the story were true, one would suppose that instead of 
 walking away from the house and denying he had been there 
 at all, he would have waited to see if the deceased really had 
 taken poison, and be the first to call for assistance. 
 
 It had been said that he was in the habit of purchasing 
 prussic acid from Mr. Thomas, the chemist, for varicose veins 
 in the leg, and that his having purchased it on the 1st of 
 January was no evidence of his having administered it to 
 the deceased. True it was that he might have varicose veins 
 in the leg, although they had received no evidence of the 
 fact, and that prussic acid might, as stated by Mr. Thomas, 
 allay the irritation produced by varicose veins, although it 
 was no remedy for the disease itself; but from the evidence 
 it appeared that on the day the deceased was poisoned, poison 
 was in the possession of the prisoner, and that on the next 
 day he had none. With regard to motives, no motive could 
 justify or palliate such a crime as that with which the prisoner 
 was charged, nor was it necessary for a jury to discover the 
 motive which might have led to its commission. The jury, 
 however, might consider how far such motives as were 
 alleged in this case could have influenced the mind of the 
 prisoner. It was stated in evidence that the deceased had 
 been in the service of the prisoner during the lifetime of his 
 former wife, whom she had nursed in her illness ; that after 
 her mistress's death the deceased became pregnant and bore 
 a child to the prisoner ; that the connection continuing she 
 became pregnant again, and that during that pregnancy a 
 very remarkable scene occurred which showed the attachment 
 of this .unfortunate woman to the prisoner. As described by 
 a witness who was present at the interview, the prisoner, 
 sitting down beside the deceased, told her it was of the 
 utmost importance to him that her pregnancy should not be
 
 202 TRIAL OF JOHN TAWELL. 
 
 known, as he was desirous of being married to the lady who 
 was at present his wife, and that he was further desirous of 
 becoming a member of the Society of Friends, whose dress 
 he wore. She at once consented, adding that in order to 
 effect his wish more completely she would remain out of the 
 world altogether, and that she would conceal her future 
 place of residence even from her own mother, who absolutely 
 did not know where her daughter lived at the period of her 
 death. 
 
 She went to reside in Crawford Street and was there 
 delivered of a second child. It then appeared that the 
 prisoner made her an allowance of 13/. a quarter, and was in 
 the habit of paying it, and that he paid it on the 30th of last 
 September at Bath Place, where she had removed from 
 Crawford Street, but that he had since overdrawn his account 
 at his banker's, and that on the 1st of January he did not 
 pay the 13/., the motive suggested being that he was under 
 pecuniary embarrassments. But a few days after he had 
 overdrawn his account at his banker's he had a bill for 600/. 
 discounted, which restored his credit. Besides, who could 
 say what his feelings were on the 30th of September or on 
 the 1st of January, when he went to Bath Place? He might 
 have gone there with the mixed feeling partly of being pre- 
 pared to pay the money, and partly, if the opportunity 
 occurred, to commit the crime and not pay the money. On 
 the 1st of January he might even have gone down with the 
 intention of paying the deceased her quarter's allowance ; 
 and they knew that when taken into custody he had 12/. 10s. 
 in his pocket, besides some silver. 
 
 The learned judge then read his notes of the evidence to 
 the jury. As his lordship proceeded he remarked, with 
 regard to the suggestion made by the prisoner's counsel, 
 that the deceased might have been suffocated by the pouring 
 of water down her throat while in a state of syncope that 
 such an hypothesis could not be entertained after the evidence 
 of Mrs. Ashley and Mrs. Barrett. 
 
 Upon the evidence of the witness as to the experiments he 
 made to obtain prussic acid from apple-pips, the learned 
 judge remarked that it was of no weight, inasmuch as prussic 
 acid was proved to be in the stomach before it could have
 
 TRIAL OF JOHN TAWELL. 203 
 
 been created by apple-pips, if there were any such present. 
 The sudden death of the woman put that point out of the ques- 
 tion. As to the suggestion of the deceased having died from a 
 sudden emotion of the mind, or from any other cause of 
 sudden death, surely the jury could not entertain it while 
 there was evidence before them of an agent sufficient of itself 
 to cause death. 
 
 The learned judge next read the evidence respecting the 
 alleged motive for the commission of the crime, and the 
 history of the connection of the prisoner with the deceased, 
 and then concluded by saying : " That, gentlemen, is the 
 whole of the case. I have read to you all the material 
 evidence ; and now it is for you to form your conscientious 
 opinion, as reasonable men holding the scales of justice 
 evenly between the public and the prisoner. If the evidence 
 leaves any rational doubt on your minds, any doubts which 
 as sensible men you ought to entertain, not a trivial doubt, 
 not a doubt resting only on speculative ingenuity, but a 
 rational doubt, you are bound to give the prisoner the 
 benefit of it. You must have respect to all the circumstances 
 of the case, and particularly to the presence of the prisoner 
 just before the death of the deceased, and the presence of 
 prussic acid in her stomach. You must consider the conduct 
 of the prisoner both before and after the death of the woman ; 
 and if all this evidence leaves any rational doubt on your 
 minds, God forbid that you should not give the prisoner the 
 benefit of it ! It is your duty to do so ; for you are not 
 bound to convict any one except upon evidence which leaves 
 no rational doubt of the guilt of the party upon your minds. 
 But if you think you cannot explain all the circumstances of 
 the case, if you cannot explain the presence of prussic acid 
 and the conduct of the prisoner, and if you think his expla- 
 nation unworthy of credit if you believe in your conscience 
 that the prisoner is guilty of the offence with which he is 
 charged it will be your duty, for the sake of public justice, 
 that the administration of public justice may not be dis- 
 paraged, and that the confidence of the public in that admi- 
 nistration may not be shaken by a person not being convicted 
 upon evidence which, upon due deliberation, is calculated to 
 produce an impression that he was guilty."
 
 204 TRIAL OF JOHN TAWELL. 
 
 Mr. Gunning (one of the prisoner's counsel) reminded his 
 lordship that the prisoner had received a good character for 
 humanity of disposition from several witnesses. 
 
 Mr. Baron PARKE. Yes, gentlemen, there is one circum- 
 stance to which I have adverted in a general way before, the 
 good character the prisoner has had. It is evidence in a 
 case of this kind, because it goes to show the impression 
 which the habits of a man have made upon the minds of 
 those about him as to his disposition. The prisoner is 
 reputed to have been a benevolent person. It is admitted 
 by the learned counsel who defended him that he was 
 formerly convicted and transported for some offence; what 
 that was we have not been told, but it is said that it was 
 not one which would affect his character for kindness of 
 disposition (a) . 
 
 The jury then retired for consultation, and in half an hour 
 returned into court with a verdict of GUILTY. Sentence of 
 death was then passed. The prisoner remained almost un- 
 moved. The verdict generally was considered just, and was 
 confirmed afterwards by the confession of the prisoner. 
 
 On the 28th of March, 1845, John Tawell, according to 
 contemporary reports, was suddenly thrust out on to the 
 scaffold in front of the Aylesbury County Hall, and there 
 executed, twenty minutes before the proper time, so suddenly 
 and quietly that some little time elapsed before the greater 
 portion of the multitude was aware that the operation had 
 commenced. He left a confession in writing " Not to be 
 made public in any way, but the purport to be disclosed/' 
 
 (a) It has been shown in the Introduction what tliis offence really 
 was.
 
 THE TRIAL 
 
 LOUIS BONAFOUS, 
 
 IX RELIGION 
 
 FRERE LEOTADE, 
 
 FOB THE MT7RDEB OF CECILE COMBETTES, 
 
 AT THE ASSIZES AT TOULOUSE (HAUTE GARONNE), 
 
 BEFORE M. DE LABAUME, PRESIDENT, 
 On February 7th, 1848, and following days. 
 
 Counsel for the Prosecution : M. D'Oms and M. Delquie. 
 
 For the Plain tiff in the civil action seeking damages (partie civile) : 
 M. Joly and M. Rumemi. 
 
 For the Prisoner : M. Gasc and M. Saint- Gresse. 
 
 INTRODUCTION. 
 
 THE case of Leotade is generally considered an instance 
 of one of those judicial errors which are to be met with, 
 occasionally in our own, but more frequently in French cri- 
 minal history. It is very little if at all known in this country. 
 The trial is inserted with a view more especially of affording 
 a comparison between the French and English systems of 
 procedure in criminal cases, and also with a view of render- 
 ing the case of Leotade more generally known to English 
 readers. As an instance of curious circumstantial evidence, 
 the trial possesses in itself a considerable amount of interest, 
 and is besides remarkable for having given rise to more con- 
 troversy than any criminal trial that has taken place in 
 France since the trials of Calas and Lesurques.
 
 206 TRIAL OF LEOTADE. 
 
 In the following Report much that is irrelevant to the real 
 point in dispute the guilt or innocence of Leotade, and not 
 the merits or demerits of the religious community to which 
 he belonged has been omitted altogether. The evidence, 
 which is very voluminous, has been sifted and condensed, 
 and the order in which the witnesses were called has been 
 slightly altered. The published reports of the trial are 
 very perplexing. Witnesses proving facts against Leotade 
 and witnesses proving facts in his favour seem to have 
 been called indiscriminately, without order or method. 
 For instance, two or three witnesses would be called in 
 succession to depose against the character or habits of another 
 witness who had given evidence against Leotade : which 
 would be followed up by an inquiry whether or not Leotade 
 was exempted from a certain duty which he particularized 
 in accounting for the employment of his time on the day 
 in question : which again would be followed up by another 
 inquiry whether the doctrine of passive obedience held by 
 the members of the community to which he belonged would 
 require or justify the giving of false evidence. All this has 
 been omitted ; and as far as possible the pith only of the 
 evidence affecting Leotade given by each witness has been 
 inserted, first the witnesses for the prosecution, and then the 
 witnesses for the defence, entirely ignoring all collateral 
 issues. 
 
 The facts of the case are rather intricate, but some care 
 has been taken in order to make them in the following 
 outline as clear and intelligible as possible. 
 
 On the morning of the 16th April, 1847, at about six 
 o'clock, the body of a young girl was found lying in the 
 Cemetery St. Aubin, at Toulouse, in the angle formed by the 
 meeting of two walls. One of these walls belonged to the 
 garden of a religious corporation, which will be referred to 
 in the following Report as the Institute, and the other sepa- 
 rated the cemetery fron the Rue Riquet. Both the walls 
 were about the same height, and met at nearly a right angle. 
 
 The body, on examination, was found to be lying in a kneeling 
 posture, on its face, supported by the elbows and knees. The 
 feet were in the direction of the garden wall of the Institute, 
 and the head was towards the wall separating the cemetery
 
 TRIAL OF LEOTADE. 207 
 
 from the street. On further examination the body was iden- 
 tified as that of Ce"cile Combettes, an apprentice to a book- 
 binder named Coiite. A post mortem disclosed that the 
 deceased had been subjected to a brutal assault during 
 lifetime, and that the cause of death was fracture of the 
 skull. 
 
 In the hair of the deceased were found some leaves of 
 cypress, a few small shreds of tow or oakum, about four 
 inches in length, apparently frayed or cut from off the end 
 of a rope, and the petal of a geranium in full bloom. The 
 summit of the wall separating the cemetery from the Rue 
 Riquet was constructed of a layer of branches of cypress, 
 which overhung the wall about ten inches. A body thrown 
 into the cemetery so as to fall in the position in which the 
 deceased was found would come in contact with these 
 branches in its descent, and on examination it was found that 
 the cypress boughs had in fact been pressed down by some 
 falling body, and the end of one of them had scraped against 
 the outer surface of the garden wall of the Institute. It was 
 thought from this to show that the body must have been 
 thrown from the garden, and not from the street, but in all 
 probability the cypress boughs would have been disturbed 
 by a body being thrown from the Rue Riquet as well as from 
 the garden, and therefore their having been pressed down is 
 not of much moment. The fact of the leaves of cypress 
 being in the hair is, however, important as tending to show 
 that the body had been thrown over one of the two walls and 
 not carried into the cemetery. This inference is, however, 
 rather weakened by the fact that the clothes of the deceased 
 were found carefully, and indeed neatly, packed between the 
 knees, in a way not likely to happen if the bocly had been 
 thrown ; and also by the fact that though the soil of the 
 cemetery was soft, it having rained heavily for several days 
 previously, there was not the slightest indentation or impress 
 made in it by the body. On the other hand there were found 
 no traces of any footmarks, which there would have been if 
 the body had been carried. Whether the body was carried 
 in or thrown over is one of the principal points of con- 
 tention and difficulty in the case. 
 
 On the top of the wall of the garden of the Institute were
 
 208 TRIAL OF LEOTADE. 
 
 found growing several plants of geranium, and one of these 
 plants was in full bloom, and had lost a petal. No geraniums 
 were found growing on the wall adjoining the Rue Riquet. 
 It was contended by the prosecution, and it must be admitted 
 with much reason, that a petal of geranium being found 
 wanting in one of the plants on the top of the garden wall, 
 and a petal of geranium of precisely similar character being 
 found in the deceased's hair, rendered it extremely probable 
 that the deceased had been thrown from the garden of the 
 Institute and not from the street. The feet of the deceased 
 were found pointing towards the wall of the garden, and the 
 head towards the Rue Riquet, which made it very unlikely 
 that if the body had been thrown over the wall from the street, 
 the hair could have caught a flower growing on the top of 
 the wall of the garden. 
 
 Immediately on the body being found an examination was 
 made of the interior of the Institute. At the foot of one of 
 the garden walls, within a short distance of the spot where 
 the body was discovered, were noticed traces as of a ladder 
 having been placed; and a ladder was subsequently found 
 in the garden which coincided with sufficient accuracy with 
 the impress on the soil ; footmarks were also found on the 
 flower bed, of which at the time no explanation was given, 
 though a few days after the gardener admitted they were 
 made by him : and not far from the footmarks a piece of 
 rope. This rope was in colour similar to the pieces of tow 
 or oakum found in the deceased's hair. 
 
 On the previous day, the 15th April, at about a quarter 
 past nine in the morning, the deceased, in company with 
 her master, Coiite, and another workwoman named Marion, 
 went to the Institute to deliver two baskets of books which 
 Conte had been binding. On being admitted by the porter 
 and the books taken inside, Marion was sent back to the 
 workshop, and Conte ordered the deceased to remain in 
 the vestibule to carry back the baskets. He himself, after 
 giving his umbrella to the deceased to hold, went into the 
 library with the books. On his return from the library the 
 girl was no- longer to be found in the vestibule, though the 
 umbrella she had had left with her was standing against the 
 wall. The porter on being asked by Conte where she AVUS,
 
 TRIAL OF LEOTADE. 209 
 
 said that very likely she had gone out whilst he was talking 
 to some one, or had gone to the Pensionnat, another part of 
 the same institution. He afterwards explained as a reason 
 for not taking more notice of the deceased that it was a 
 busy morning, being a fair day, and that the bell was con- 
 stantly ringing. 
 
 At the time of the arrival of the deceased in the vestibule 
 there were five persons in the adjoining parlour. These per- 
 sons were Freres Navarre, Laphien, and Janissien, and two 
 visitors, Rudel and Vidal. Frere Navarre afterwards stated 
 that he was standing in the doorway of the parlour with his 
 back to the vestibule, talking with the other freres and the 
 two visitors who were inside, when there came a ring at the 
 front door. He turned round and saw Conte enter with the 
 deceased and Marion into the vestibule. " Without changing 
 my place," he said, " and by merely turning my head over 
 my shoulder, I saw in the vestibule two females, one tall, the 
 other of shorter stature. I saw on the ground a basket of 
 books, which Conte was handling. I turned my head to 
 answer a remark of one of the/reresinthe parlour, and I saw 
 Conte enter into the court of the Noviciat, carrying a basket 
 with him. I happened to look into the vestibule at the same 
 time, and I no longer saw there the two persons who entered 
 with Conte, nor the porter, nor anyone." 
 
 The effect of Navarre's statement, therefore, is to show 
 that the deceased disappeared almost at the same instant 
 that Conte went up to the library with the books. Marion 
 undoubtedly went out immediately after her arrival into the 
 street ; and it is quite certain that Cecile did not go out 
 with her. The porter stated that he locked the door on 
 Marion's departure, and then assisted Conte to carry up the 
 books into the library, taking the key of the door with him. 
 The deceased could not therefore during his temporary 
 absence have gone out of the vestibule into the street, though 
 it was possible for her to have entered into other parts of 
 the Institute. 
 
 From the time of the girl's admission into the vestibule 
 in company with Conte she was never afterwards seen alive, 
 except by her murderer, as far as either the prosecution or the 
 defence were able to show Whether she went out when the
 
 210 TRIAL OF LEOTADE. 
 
 porter was engaged, or went to the Pensionnat, or where she 
 went to, is a matter of conjecture. All that is known for 
 certain is that she was never again seen outside the Institute 
 alive. As far, therefore, as the evidence goes it certainly tends 
 to localize the crime within the walls of the Institute, as the 
 deceased undoubtedly was last seen alive in the vestibule, 
 and it would therefore be imperative on the Institute to 
 account for her, unless they could show she was afterwards 
 seen to go out. This they endeavoured to do, and failed ; 
 and to the injudicious and ill-advised attempts made on 
 behalf of the Institute to prove that the deceased was seen 
 to leave the establishment, the condemnation of Leotade may 
 in a great measure be attributed. 
 
 In the first place, however, suspicion did not fall upon the 
 members of the Institute, but upon Conte, a man whose 
 character was notorious for depravity. He was arrested a 
 few days after the discovery of the body, when he gave it as 
 his opinion that the girl had been enticed into some disrepu- 
 table place and murdered. On the next day, however, he 
 sent for the magistrate, and then for the first time deposed 
 that on his arrival at the Institute with the deceased he saw 
 two of the brethren, Jubrien and Leotade, in the vestibule. 
 On being confronted with Conte the two freres denied having 
 been in the vestibule. They were however arrested, as was 
 also Conte's other workwoman Marion, who, it must be 
 noticed, on examination stated that neither Jubrien nor 
 Leotade was in the vestibule when Conte and the deceased 
 entered with the books. 
 
 The time of this arrival with the books, a matter of great 
 importance, is fixed with some certainty, not only by the 
 statements of Conte and Marion, but by independent evidence 
 obtained inside the Institute. Navarre stated he left the 
 hall to go to the parlour at five minutes to nine by the 
 clock, and returned finally at twenty minutes past nine. 
 During that time, however, he went, according to the acte 
 d 'accusation, twice to the parlour, first to see Yidal and 
 Rudel, and afterwards with Laphien and Janissieu, for whom 
 the two visitors had asked when about to take their leave 
 after the first interview. As this first interview, which is 
 stated to have lasted a quarter of an hour, and to have com-
 
 TRIAL OF LEOTADE. 211 
 
 menced at five minutes to nine, would consequently have 
 ended at ten minutes past nine, and then Laphien and 
 Janissien had to be found and brought to the parlour, the 
 second one would not commence until a quarter past. It was 
 undoubtedly during this second interview that the deceased 
 arrived in the vestibule, and as it was over at twenty minutes 
 past nine, according to Navarre's statement, the time of her 
 arrival is fixed, within the compass of five minutes, between 
 a quarter and twenty minutes past nine. The time being 
 thus ascertained, an important question arises, Where was 
 Leotade at that moment ? The prosecution asserted, in 
 the vestibule ; Leotade himself that he was in the Pensionnat, 
 occupied with the performance of his customary duties the 
 whole of that morning, and was never in the Noviciat at all 
 in the course of the day. Some discrepancy will, however, 
 be noticed between Navarre's evidence as given at the trial 
 and his original statement embodied in the acte d' accusation, 
 rendering it extremely difficult to sift out what were really 
 the true facts. The prosecution always averred that from 
 the very commencement of the inquiries in the Institute they 
 were surrounded by such an atmosphere of dissimulation 
 and passive opposition on the part of the freres as to 
 render the efforts they made to discover the truth almost 
 abortive. 
 
 In order to show how the prosecution sought to bring 
 the crime home to Leotade, it is requisite that some 
 description of the interior of the premises should be 
 given. 
 
 The Institute is divided into two portions, the Noviciat 
 and the Pensionnat, each under a separate director. The two 
 establishments are quite distinct, being separated one from 
 another by a street, the Rue Caraman. The main entrance, 
 and the one most frequently used, was in the Noviciat, from 
 the Rue Riquet, by which Conte and the deceased had 
 entered on the morning in question. From the Noviciat a 
 tunnel runs under the Rue Caraman, affording a means of 
 communication between both buildings. Assuming, therefore, 
 the deceased once inside the vestibule of the Noviciat, it 
 would be possible for her by means of the tunnel to pass 
 from the Noviciat to the Pensionnat. On issuing from the 
 
 p 2
 
 212 TRIAL OF LEOTADE. 
 
 tunnel on the Pensionnat side of the Rue Caraman, a long 
 corridor is entered which leads into the garden, and imme- 
 diately on reaching the garden, on the left hand, is an out- 
 building used partly as a stable, and partly as a sleeping 
 chamber for servants. To get to the stable part of the out- 
 building it is necessary to pass through the sleeping apart- 
 ment of the servants. From one corner of the stable a 
 ladder leads to an upper chamber in which hay and straw 
 were kept. The theory of the prosecution was that Leotade, 
 having met the deceased in the vestibule of the Noviciat, 
 enticed her on some pretext or other into the tunnel, from 
 thence to the Pensionnat, and then along the corridor to the 
 stable ; and that there in the hay-loft above the crime was 
 committed. 
 
 In support of this theory the prosecution gave in evidence 
 that on the body of the deceased being examined there 
 were found between the dress and the skin some straw's of 
 wheat, on which there were signs of blood, and a feather. 
 Some particles of hay also adhered to the dress of the 
 deceased, and to her shoes, which on examination were 
 found to consist of or to contain clover. Now there were 
 wheat, straw, and clover in the loft over the stables, and 
 it was sought to be inferred from this that it was in 
 the stable the murder had been committed. In addition 
 there were found on the deceased's clothes, incrusted in 
 other matter, certain grains, which on investigation turned 
 out to be grains of fig, and on a shirt found in the Noviciat 
 were also found traces of grains of fig, similar in character 
 to those found on the deceased, and it was therefore assumed 
 the two articles of dress had been in contact. The shirt 
 in question was numbered 562, and was found in the Noviciat, 
 Le*otade himself belonging to the Pensionnat, but amongst 
 the keys found in Le'otade's possession was one which it was 
 discovered would open the door of the room where the clothes 
 were kept in the Noviciat. 
 
 Assuming the stable to have been the place of the murder, 
 the body would have to be left in the hay-loft above for the 
 remainder of the day, and in the night-time Leotade would 
 have had to descend from the dormitory where he slept into
 
 TRIAL OP LEOTADE. 213 
 
 the garden, and without being heard or seen by the servants 
 who occupied a room communicating with the hay-loft, to 
 have carried the body away and thrown it over the wall into 
 the cemetery. It is a fact of some moment in considering 
 the question of the guilt or innocence of Leotade, that on 
 the 24th of April, about nine days after the commission of 
 the crime, ihejuge d' instruction, in the course of his investi- 
 gations in the interior of the Institute, asked Leotade to point 
 out the room in which he slept. This Leotade did, and the 
 result was to convince the juge d'instruction that it was not 
 possible for Leotade in the night to have left the room with- 
 out being seen, in order to go to the stable to dispose of the 
 body. Later on, Leotade was asked to point out the room in 
 which he slept on the night of the murder, when it appeared 
 he then occupied a room from which it was possible to obtain 
 access to the garden by opening two doors which were fastened 
 by locks having the same key. Amongst the keys afterwards 
 found in Leotade's possession, or under his control, was one 
 which opened both these locks. The change of rooms took 
 place on the 17th, two days after the murder. The reason 
 assigned for it was that Frere Luc, who at the time of the 
 murder occupied a room alone, had complained that he felt 
 uneasy at sleeping in a room by himself, and that the director 
 accordingly made him take Leotade's place, who was sent to 
 sleep in another dormitory. The change of rooms appeared 
 to have originated spontaneously with the director, Frere 
 Irlide, and may have been done quite innocently. But 
 the prosecution laid great stress upon it, and it probably 
 pressed harder against Leotade than any other piece of 
 evidence adduced against him in the whole course of the 
 trial. 
 
 The inference drawn by the prosecution from all these 
 facts was that Leotade, and Leotade alone, was guilty of the 
 crime. It will be borne in mind that assuming the murder to 
 have been committed in the Institute, the evidence pointed 
 as strongly to Jubrien as it did to Leotade, both of them, 
 according to Conte's statement, having been in the vestibule 
 of the Noviciat when the deceased entered with the books. 
 The prosecution, however, after arresting and examining
 
 214 TRIAL OF LEOTADE. 
 
 Jubrien, ultimately discharged him, as also Conte and the 
 workwoman Marion, and thenceforward brought all the 
 means in their power to bear upon Leotade. 
 
 The system adopted in the French courts of interrogating 
 the prisoner for the purpose of obtaining a confession is one 
 of the main features distinguishing the practice sanctioned 
 in that country from the practice followed in England. The 
 hardship and unfairness of it to the prisoner are particularly 
 exemplified in the case of Leotade. There was scarcely a 
 particle of evidence disclosed by the depositions taken be- 
 fore the magistrates in the first instance which affected 
 Leotade, beyond the fact that he was one of two of the 
 members of the Institute alleged by Coute to have been in 
 the vestibule when the deceased arrived. In England it is 
 very doubtful indeed whether he would have been com- 
 mitted for trial on such evidence. But in France, where a 
 prisoner can be questioned and cross-examined day by day by 
 an experienced magistrate, direct evidence against him is not 
 a matter of such moment as it is with us. It is interesting 
 to follow the course adopted in Leotade's case, and compare 
 it with the English system. 
 
 On the 6th of August, after a long and tedious preliminary 
 investigation, Leotade was committed for trial at the next 
 assizes to be held at Toulouse. In the course of this inves- 
 tigation, and after his committal, he was subjected to close 
 solitary confinement for upwards of 100 days, and not 
 allowed to have any communication with his advisers. At 
 intervals during his confinement he was subjected to repeated 
 examinations. The magistrate conducting these interro- 
 gatories gave evidence at the trial as to what passed 
 between him and Leotade, and his account is particularly 
 characteristic of French procedure. After detailing the 
 number of interviews he had with Leotade, M. Courbet, the 
 magistrate, stated: "I told him (Leotade) it was a brutal 
 crime, and could only be accounted for by his being in a 
 state of mind verging on insanity. ' Confess that you 
 yielded to a sudden impulse which took away all your reason, 
 and rendered you no longer master of yourself. If you are
 
 TRIAL OF LEOTADE. 215 
 
 really guilty your situation, torn to pieces as you must be by 
 remorse, is deplorable. Confess, and even after such an 
 enormous crime you will find some peace of mind, and may 
 probably meet with some indulgence from your judges.' 
 Leotade listened to me with great attention, and replied, 
 ' That may probably excuse the rape ; but the murder ! ' 
 I said, ' Who knows that the author of the crime committed 
 the murder as well ; the deceased may have thrown herself 
 violently against the wall/ / thought for a moment Leotade 
 was on the point of making a confession. " How different is 
 all this proceeding to the humane course adopted in England, 
 where a prisoner is fenced round with so many safeguards 
 that it is sometimes by no means easy to get a confession 
 in evidence ! 
 
 The trial commenced on the 7th February, 1848, before 
 M. deLabaume, President () . The indictment charged Leotade 
 with the murder of Cecile Combettes, and with assault with 
 
 (a) It is necessary here to observe that there were two trials of 
 Leotade, one in February and the other in March in the same year, both 
 lasting about twenty days. The first trial was very nearly completed 
 the evidence being entirely closed when the Revolution of February 
 broke out. The court then adjourned for about three weeks, when the 
 evidence was repeated before a second jury, the only difference between 
 the two trials being that in the first trial the jury had a view of the 
 premises, and in the second they had not. The following report is taken 
 from a very voluminous and apparently verbatim report, published at 
 Toulouse by Jougla, and collated with that contained in the Gazette des 
 Tribunaux for 1848. There is also a very accurate report, of which 
 much use has been made, in the Journal des Debats for the same year. 
 Some slight information has been derived from a work entitled Memoirs 
 Justificatifde I 'Innocence du Frere Leotade, by Cazeneuve, published at Tou- 
 louse in 1859. The author's aim is, however, entirely directed to making 
 out a case for Leotade, and such portions only of the evidence are given 
 in the work as suit his purpose. But the plans and diagrams are 
 interesting ; and the work contains some documentary evidence not 
 inserted in other reports. Copies of both the Gazette des Tribunaux and 
 the Journal des Debats for 1848 are in the British Museum [pp. 9466, 
 and pp. 9433 being the press marks for ea^h respectively]. The plan 
 accompanying this work has been taken from the one given in the 
 Gazette des Tribunaux, with some slight alterations and additions ; but 
 it is not easy to give a satisfactory description of the premises, owing to 
 its being impracticable to show in a plan the formation of the two walls, 
 one of the main features in the case. Nothing but an actual examination 
 of the Institute garden and walls, and of the vestibule, will enable the 
 very intricate evidence in the case to be thoroughly understood.
 
 216 TRIAL OF LEOTADE. 
 
 intent to commit rape, and with rape, varying the crime 
 very much as in an English indictment. The acte d' accu- 
 sation was then read, detailing at considerable length the 
 facts of the case. In French trials, where no opening speech 
 of counsel is customary, the acte d' accusation is generally a 
 most efficient substitute, and frequently is prepared with 
 great literary ability and skill. In the present instance the 
 document had been drawn with more than ordinary 
 minuteness and attention, and the reading of it occupied a 
 considerable time. At the conclusion of the reading of the 
 acte d' accusation, and before any witnesses were called, the 
 President commenced a further interrogatory of the 
 prisoner. This interrogatory, previous to any witnesses being 
 called, is another peculiarity of French procedure, and as 
 it stands out in striking contrast to the procedure in the 
 English courts, some of the more important parts of it are 
 given nearly verbatim. 
 
 The President. Before the prosecution proceed to give 
 evidence in detail of the various charges enumerated in the 
 acte d' accusation, it is necessary to interrogate you on the 
 various contradictions and tergiversations observable in your 
 previous interrogatories. The court therefore appeals to your 
 sincerity. Reflect before you make any answer, and remem- 
 ber that your replies will have a considerable effect on your 
 ultimate fate. Were you acquainted with the deceased, 
 Cecile Combettes ? 
 
 Leotade. No, I never saw her or knew her. 
 
 The President. Were you not in the habit of going to 
 Centers house? 
 
 Leotade. Sometimes, on business for the Institute, but 
 I have never seen there any of the apprentices, as far as I can 
 remember. 
 
 The President. You have already introduced that 
 reservation into your preliminary examinations. Let the 
 court have no equivocation. Have you ever seen, or have 
 you not seen, any apprentice at Conte's house, and did you or 
 did you not know the deceased? 
 
 Leotade. No, I was not acquainted with her. 
 
 The President. Is it true that a few days before the 
 crime you were at Conte's house?
 
 TRIAL OF LEOTADE. 217 
 
 Leotade. I do not remember. 
 
 The President. I must now call to mind the object of 
 your visit, which will refresh your memory. You went to 
 ask Conte for a memorandum book. 
 
 Leotade. I beg your pardon; I remember the circum- 
 stance now. 
 
 The President. Did you not say on that occasion to 
 Conte, "Send me the book by Cecile?" 
 
 Leotade. Not having any knowledge of the deceased, I 
 could not say so. 
 
 The President. That remark of yours, if you had made 
 it, would have implied two things ; one is, that you were aware 
 that Conte had apprentices, and the other that you were 
 acquainted with one of them, as you mentioned her by name. 
 Do you still mean to say you did not make use of that 
 remark ? 
 
 Leotade. I have never seen any apprentice at Conte's 
 house. 
 
 The President then passed on to the proceedings of 
 Leotade on the day in question, all of which were enumerated 
 by him in detail. The day commenced with mass, celebrated 
 in memory of a deceased brother at Paris. After mass was 
 breakfast, which finished a little before nine o'clock. At 
 nine he went to the work-room to give out work for the 
 pupils, and afterwards wrote a letter to his superior at Paris, 
 containing his " Compte de conscience." [It is during this 
 time, after nine and before twenty minutes past, that the 
 deceased arrived in the vestibule, where, according to the 
 prosecution, Leotade and Jubrien were present. The writing 
 of this letter between nine and half-past by Leotade, the very 
 time he was said to be in the vestibule of the Noviciat, is 
 therefore a matter of importance, and the prosecution did all 
 they could to disprove it.] At about half-past nine he went 
 to the kitchen, where he remained until ten, and examined the 
 bread. At ten he had seen the director of the Pensionnat, and 
 had given him the letter for the superior. At half-past ten 
 he fed the birds, got up some wood out of the cellar, and at 
 eleven went to chapel. After chapel he had dinner, and 
 after dinner went into the town, and on returning again fed 
 the birds ; and the rest of the day he passed in the observance
 
 218 TRIAL OF LEOTADE. 
 
 of the usual religious exercises until bed-time. He did not 
 go to bed at the same time as the other freres. He went to 
 the cellar to get up two barrels for the purpose of sending for 
 some wine from Saint-Simon the next morning, and did not go 
 to bed until after the rest. He himself wanted the barrels, 
 and they were gauged the next day (Friday) by Jubrien. On 
 that night, therefore, he did not go to bed until after the 
 other freres, but stayed up alone. In the course of this 
 interrogatory, which is extremely lengthy, Leotade was 
 examined, or rather cross-examined, on points which seemed 
 at variance with his previous declarations, but none of them 
 are of much moment, and any discrepancy may fairly be 
 accounted for by the pressure that was put upon him during 
 the course of his long solitary confinement. Leotade com- 
 plained bitterly that he had been treated with much unfairness 
 by the procureur general in the first interrogatories, and of 
 the rigour of his solitary confinement, exclaiming, " On me 
 faisait pleurer au secret." The interrogatories then pro- 
 ceeded : 
 
 The President. On the 3rd of May, in answer to a 
 question put to you, you said you had on at that time 
 of the clothes worn by you on the 15th April only the 
 stockings and soutane. Search was made for the drawers 
 you had worn, which you said were in the work-room. They 
 were not found there nor elsewhere, and on that point you 
 have never given any explanation. I remember now that 
 on the 3rd May I still wore the same clothes I had worn on 
 the 15th, except the shirt. 
 
 The President. This is an entirely new version. Why 
 did you not say so to the juge d 'instruction ? I was so 
 much troubled in my mind I could not answer. 
 
 The President then proceeded to interrogate Leotade rela- 
 tive to an illness he alleged he was suffering from, which was 
 likely to leave traces of blood on his clothes, which, however, 
 does not appear from the evidence afterwards given to be of 
 much importance. No blood was ever found on the clothes 
 worn by Leotade on that day. The shirt he wore had been 
 changed, and he was pressed closely as to when and where he 
 had changed it, and to whom he had afterwards given it ; all 
 of which questions were answered with clearness and decision.
 
 TRIAL OF LEOTADE. 219 
 
 The shirt to which any suspicion attached was that numbered 
 562, and found in the Noviciat; and there was an entire 
 absence of any proof that Leotade had ever worn that shirt 
 on the day in question. But he admitted that on the Sunday 
 after the murder he did not put on the clean shirt given him 
 because, as he said, it was too small, and irritated a blister 
 he had, but he returned it to the infirmier. He was asked if 
 he had any key which would open the lock of the door where 
 the clothes were kept in the Noviciat, and replied he did not 
 know. On his own keys being produced one of them was 
 proved to open this particular lock, as to which he offered no 
 explanation. 
 
 The President. Were you in the vestibule of the Noviciat 
 at a few minutes after nine on the morning of the day in 
 question in conversation with Frere Jubrien ? No, I did not 
 leave the Pensionnat at all that morning. 
 
 The President. Yet Conte is very positive on that point. 
 He mentions the hour, the place, your position, and your 
 dress. When before ihejuffe d" instruction you heard Conte 
 give all these details in evidence, you merely replied, " It is 
 possible ; I do not remember." And then you denied it. 
 Jubrien being questioned, his statement confirms yours. 
 Later on you deny having spoken to Jubrien on that morn- 
 ing. It still remains for the prosecution to know whether 
 you were or were not in the Noviciat on the morning of the 
 16th of April ? 
 
 Leotade (with firmness). I solemnly declare, and will 
 declare up to the hour of my death, Conte has stated what is 
 not true. I was not in the Noviciat on that day, and did not 
 speak to the Frere Jubrien. I spoke to him on the 16th, but 
 whether in the vestibule or not I do not remember* I had 
 gone to the Noviciat to give some money to the shoemaker, 
 but I met Jubrien in the corridor close by the shoemaker's 
 workshop, and gave it to him instead. I do not know whether 
 I had passed by the door of the room where the linen was 
 kept before I met Jubrien. [It was always suggested by the 
 prosecution that it was on this morning, the 16th, on the 
 occasion of Leotade' s visit to the Noviciat, when he passed 
 close by this linen -room, that he slipped unnoticed into the 
 room (of which he had a key) and got rid of the shirt 
 No. 562, taking another one instead.]
 
 220 
 
 TRIAL OP LEOTADE. 
 
 The President. You ought to be able to remember 
 whether you spoke to him in the vestibule or outside. Con- 
 sider the position in which you are placed by having such a 
 good memory for certain events and so little for others. 
 
 Leotade. I cannot remember. 
 
 The interrogatory then passed on to other points posterior 
 to the day of the murder Leotade's statements as to the 
 footmarks in the garden, which it was sought to show he had 
 in the first instance admitted to be his, and afterwards 
 retracted : a visit made by him to Conte's wife on the day after 
 the murder, and to a person of the name of Lajus, with whom 
 it was endeavoured to prove he had held a conversation reflect- 
 ing on Conte's character and antecedents. All these allega- 
 tions and inferences he denied. On the whole Leotade's 
 answers were given with firmness and precision, and he went 
 through the ordeal without being entrapped into saying 
 anything contradicting his previous statements on any 
 important points, and without hesitation or confusion. It is 
 quite impossible to give these interrogatories and answers in 
 full, nor is it necessary. The only points of any moment 
 affecting Leotade were, was he in the vestibule of the 
 Noviciat on the morning of the 15th when the deceased 
 arrived ? Was the shirt No. 562 found in the Noviciat his 
 own, or could it be traced to his possession ? And were the 
 footmarks in the garden made by him ? On the more 
 important of these points Leotade's answers have been given 
 nearly verbatim, and the rest may fairly be omitted. 
 
 The court then proceeded with the examination of the 
 witnesses. The first witness called was a man of the name 
 of Raspaud, the grave-digger of the cemetery, who deposed 
 that on the morning of the 1 6th he, in company with Leveque, 
 the concierge y went into the cemetery. His attention was 
 drawn to a body lying on the ground near the angle formed 
 by the wall of the garden of the Institute and that of the 
 Rue Riquet. He at first thought it was some one praying, 
 as the body was in kneeling posture. On examination it was 
 found to be that of a girl, dead and cold. He touched it 
 without interfering with the position in the least, slightly 
 moving the head without moving the rest of the body. The 
 body was lying on its face and knees, supported by the
 
 TRIAL OF LEOTADE. 
 
 elbows. The head was towards the Rue Riquet, the feet 
 towards the Institute garden. The body was lying across 
 the angle formed by the two walls. The cemetery door 
 was fastened when he got there ; but there was a church in 
 the course of building inside the cemetery, and the workmen 
 were at work when he arrived. Leveque went for the police, 
 and witness remained near the body. Several persons came 
 and climbed on the wall of the Rue Riquet whilst he was 
 watching the body. The evidence of this witness was cor- 
 roborated by Leveque as to the position of the body, and by 
 a commissaire of police, M. Lamarle. 
 
 M. Estevenet, surgeon, deposed that on the 16th April he 
 arrived at the cemetery at about two o'clock. He examined 
 the body and the surrounding walls and ground. What struck 
 him first were some particles of dust or earth on the head and 
 body of the deceased. He noticed on the wall of the Insti- 
 tute, on the side next the cemetery, below the level of the 
 branches of cypress forming the top of the wall of the Rue 
 Riquet, marks of friction and appearances as of earth having 
 fallen from the wall. The particles of earth on the head and 
 body of the deceased corresponded with the earth rubbed 
 from off the garden wall of the Institute. He then procured 
 a ladder and made an examination of the top of the wall of 
 the Rue Riquet. He found no traces of any body having 
 passed over the top ; on the contrary, there were appearances 
 which entirely negatived such a proposition. On the top of 
 the wall, where it formed an angle with the wall of the 
 Institute, there were some tall plants which had not been 
 touched. On the top of the wall of the Institute there were 
 plants of groundsel flattened down, and a plant of geranium. 
 This latter had three flowers, one withered, the second not 
 fully flowered, the third in full flower, but deprived of one of 
 its petals. There was also found a plant nearly entirely rooted 
 up, but hanging by one of its roots, and quite fresh. On the 
 other, the garden side of the wall of the Institute, there was 
 a brick on which plants were growing ; these plants were 
 pressed down. The appearance of the plants on the wall of 
 the Institute generally gave the witness the idea that a body 
 had passed over and flattened them. On examining the 
 dress of the deceased he found a fragment of straw, and in the
 
 222 TRIAL OF LEOTADE. 
 
 inside of it, next the skin, some particles of clover. The body 
 was quite stiff. He made a post mortem examination of the 
 deceased. The witness then gave some important evidence 
 as to the condition of the body : " The face was swollen, the 
 nose slightly crushed. Neither the mouth nor throat presented 
 any appearance of strangulation or suffocation. There was a 
 depression about the left eyebrow. Some dry earth was 
 incrusted on the surface of the skin, which was broken. 
 The left cheek was scraped, and earth incrusted on it ; the 
 lobules of both ears torn. The wrists were bruised, and 
 showed traces of great compression; the hands torn and 
 scratched." The witness then gave some further evidence 
 to the effect that a felonious assault had been perpetrated on 
 the deceased. " The stomach, on being examined, showed 
 that the follicles were developed as in the first stage of 
 digestion : the food would probably have been taken two or 
 three hours before death." [This would bring the time of 
 the murder to about ten o'clock.] " The throat, on being 
 carefully dissected, showed no signs of compression, and the 
 deceased had evidently been neither suffocated nor strangled. 
 There was a large bruise 011 the left temple, and about ten 
 others over the surface of the skull ; the right parietal bone 
 and the occipital bone were fractured." In his opinion the 
 wounds had been inflicted during life, and would cause almost 
 instant death. He thought it possible that the body might 
 have been thrown from the garden of the Institute without 
 causing any depression in the soil of the cemetery : the head 
 might have struck against the inner side of the wall of the Rue 
 Riquet and so have broken the force of the fall. The weight of 
 the deceased would be about sixty pounds (French measure) . 
 On being asked by the court the kind of weapon he thought 
 would inflict the wounds, the witness excluded the fist or 
 a stick, and thought it more likely to have been a hammer 
 or violent blow against a wall, or a fall from some height. 
 Asked as to some conversation with Leotade as to the foot- 
 marks in the garden, he said he believed Leotade had said 
 to him one day, but what particular day he could not remem- 
 ber, " It is probably we who have made the footmarks ?" 
 [Leotade, being interrogated, denied this, and said on the 16th 
 of April he was not in the garden with M. Estevenet, but on
 
 TRIAL OF LEOTADE. 223 
 
 another day, the day the ladders were seized, the 17th. The 
 witness was, however, positive that Leotade made use of these 
 words.] 
 
 [Evidence was then given as to the construction of the wall 
 of the Hue Riquet and the garden wall, and of the flowers 
 growing on each, and also as to whether there was the 
 appearance of any recent fracture or breach on the top of 
 either. The most important point was that on the top of the 
 garden wall were found growing plants of geranium, one of 
 which, in full bloom, had lost a petal, whilst on the top of 
 the wall of the Rue Riquet there were no geraniums. There 
 was a slight breach also on the top of the wall of the garden, 
 and the appearance as if a hand had been placed there. 
 The finding of the petal of geranium in the hair, and other 
 articles on the dress and person of the deceased, was also 
 proved.] 
 
 M. Gaussail, another doctor, corroborated M. Estevenet's 
 evidence as to the examination of the body. He thought 
 the deceased might have been thrown from the Institute into 
 the cemetery without causing any impression in the soil, and 
 without the clothes being disturbed. M. Filhol, chemist, 
 deposed that from the state of the digestive organs he was of 
 opinion that the deceased was killed about three hours after 
 taking food. He had examined the clover found upon her, 
 which was identical with the clover found in the stable of the 
 Institute. The petal of geranium found in the hair was pre- 
 cisely identical with the flowers on the top of the wall of the 
 Institute. He could not, however, state that the shreds of 
 tow or oakum found in the hair were part of the piece of rope 
 found in the garden. He had examined the shirt No. 562. 
 The grains of fig on it were identical with those on the dress 
 of the deceased. 
 
 M. Noulet, professor of botany, proved that there was a 
 perfect identity between the particles of clover found on the 
 deceased and the clover in the stable ; also that the grains of 
 fig on the clothes of the deceased and on the shirt No. 562 
 were of precisely the same character. He stated that in 
 nearly 200 cases in which he had made the experiment with 
 the ordinary figs of commerce he had never found any grains 
 identical with the grains found on the deceased and on the
 
 224 TRIAL OP LEOTADE. 
 
 shirt. On being closely pressed as to this and the nature of 
 the experiments he had made, the witness said, with much 
 assurance, " I am positive that the grains on the shirt and the 
 grains on the deceased's clothes proceeded from the same 
 fig." 
 
 Igiiace Martial Coumes, brigadier de gendarmerie, deposed 
 that on the morning of the 16th April he was called to the 
 cemetery, where he saw the body of the deceased. He detailed 
 the position in which it was found. He afterwards went to 
 the Institute and examined the garden. At the foot of the 
 garden wall, near a building called the Orangerie, he found 
 traces of " numerous" footmarks, and also the marks of a 
 ladder having been placed. Several ladders found in the 
 Institute were successively applied to the marks in the soil, 
 and one of them corresponded with the marks. At the foot 
 of the wall, near the angle formed with the Orangerie, was 
 found a piece of cord recently cut. The witness asked some 
 of the freres, and amongst others Frere Lorien, the 
 gardener, if they could account for the marks. The gardener 
 did not at that time assert that the footmarks had been 
 made by him, but he did a few days after. The footmarks on 
 the flower-bed were made by some person wearing shoes, and 
 not clogs (sabots). On the same line as the footmarks wit- 
 ness also found traces of a ladder ; both the footmarks and the 
 impress of the ladder were freshly made. He asked the gardener 
 who had made the marks with the ladder, and he said he did 
 not know. As to the footmarks, a frere, whom he believed 
 to be the Frere Visitor, said they would be made by freres 
 who had been in the garden that morning, and had heard the 
 noise in the Rue Riquet. Witness also examined along the 
 garden wall in the direction of the Oratory, and found foot- 
 marks on the beds, and traces as if a person had tried to put 
 his foot on the wall and had slipped. He asked the frere 
 who was with him who had made these marks, and he could 
 not tell ; and then two freres came up and said they had 
 made them that morning; they had heard a noise, and 
 wanted to know what it was. Then the gardener came up, 
 and said the marks on this side (near the Oratory) were made 
 by him as he was trying to catch a mole ; " but," said the 
 witness, " when I asked him how he made them he put him-
 
 TRIAL OF LEOTADE. 225 
 
 self into a position which was not at all the position to catch 
 a mole in." Afterwards, on another occasion, witness was 
 making a further examination of the premises, and Frere 
 Lorien, the gardener, came up and said to witness spon- 
 taneously, " The day you asked me about the footmarks I said 
 it was not I who made them. I now, however, remember I 
 did make them." Witness then pointed out that on the 16th 
 Lorien was wearing sabots, and the footmarks were made 
 with shoes. The witness's deposition before the juge 
 d' instruction being put in, it was found that on the 16th of 
 April he had stated that there were only two or three foot- 
 marks on the flower-beds, and the traces of them were very 
 slight. The contradiction between his present statement 
 that there were " numerous " footmarks, and his previous one, 
 was pointed out to the witness by M. Gasc on behalf of 
 Leotade, but the witness was unable to give any explanation 
 of it. 
 
 Jacques Dinat deposed that on the morning of the 16th 
 he examined the top of the wall of the Rue Riquet. He 
 noticed a stake fixed on the wall, and some blades of 
 grass growing. From the inspection he made it was impos- 
 sible in his opinion for the body to have been thrown over 
 the wall from the Rue Riquet. [The stake fixed on the top of 
 the wall (piquet en bois blanc] was fixed near the angle 
 formed by the wall of the Rue Riquet with that of the wall 
 of the Institute garden, and appears to have been placed 
 there for the purpose of taking measurements or levels, it 
 being proposed to extend the Rue Riquet. "Without this 
 explanation it is difficult to understand why a stake should 
 have been planted on the top of the wall : being there, 
 however, near the angle, it formed an obstacle to a body 
 being thrown over from the street] . "Witness was entrusted 
 by M. Lamarle with the examination of the cemetery. He 
 examined the ground along the wall adjoining the Institute 
 garden throughout its entire length, and at the angle formed 
 with the Rue Riquet, and found no footsteps save those of 
 a dog. (Leveque being also questioned on this point, said he 
 had examined the ground in the cemetery and found no 
 traces of any footsteps, though the grass was tolerably 
 thick).
 
 226 TRIAL OF LEOTADE. 
 
 Marie Combettes, the mother of the deceased, deposed that 
 her daughter was fourteen years and nine months old. On 
 the 15th, between half-past twelve and one, when witness 
 came home, she learnt that her daughter was missing. 
 Witness sent her mother to Conte's to inquire, and her 
 mother told her on her return that Madame Conte had said 
 there was no cause for alarm, as Cecile had often gone to 
 the Institute before. Afterwards she sent her sister to the 
 Institute, who told her on her return that the porter had 
 said he had seen the deceased enter, but had not seen her 
 leave. [It will be noticed that hearsay evidence is admis- 
 sible in Prance : in fact a good deal of the evidence given 
 in the course of this trial was hearsay evidence.] Witness 
 deposed that about twenty days after the murder a woman 
 came to her and expressed much sympathy for the loss of 
 her daughter, and offered her money ; the woman said that 
 some one else would give her more. Witness refused the 
 money. She identified the woman who offered the money 
 as a person of the name of Madeline Sabathier. [The prose- 
 cution laid much stress upon this offer of money, asserting 
 the woman was an emissary of ihefreres.~\ 
 
 Guillaumette Gestas, a companion of the deceased and 
 fellow apprentice, proved seeing her eating some bread and 
 peas on the 15th, about eight or half-past eight in the 
 morning [this was to fix as far as possible, from the state 
 of the digestive organs, the time of the deceased's death] . 
 She saw her leave the workshop at a quarter past nine. The 
 witness stated she had never seen the deceased the subject of 
 any attention on the part of Conte, nor had the deceased 
 ever complained to her about him. Witness had been to 
 the Noviciat two or three times, but had never been allowed 
 to pass beyond the vestibule. 
 
 Roche Lafitte, in religion Frere Lorien, the gardener of 
 the Institute, was then called. He was the first witness 
 examined belonging to the community, and at the previous 
 trial, owing to the serious contradictions that were apparent 
 between his evidence and that of Coumes, he had been given 
 into custody, and remained in prison until the close of the 
 proceedings, nearly twenty days. It was expected that the 
 interval between the first and second trial affording ample
 
 TRIAL OF LEOTADE. 227 
 
 time for reflection, would have induced him to modify his 
 evidence, and his examination was looked forward to with 
 the greatest interest. The important point was that he 
 claimed to have been the person who made the footmarks on 
 the garden bed near the spot from which it was suggested 
 the body was thrown, and that he stated this to Coumes on 
 the morning of the 16th, whereas Coumes said it was not 
 until some days after that Lorien acknowledged the foot- 
 marks. The suggestion of the prosecution was that Leotade 
 having in the first instance admitted that the footmarks were 
 probably mad^-by him, found that it would be fatal to his 
 case to continue to admit them, and sought to thrust the 
 responsibility upon Lorien, who, being an old man and not at 
 all suspected of the murder, might acknowledge them without 
 any danger, and that Lorien was accordingly tutored by his 
 superiors to admit having made the marks. 
 
 The witness stated that on the 16th he went to the garden 
 about a quarter to eight. No one was there when he arrived, 
 but the garden door was not locked. Whilst he was in the 
 . garden two freres, the Frere Sacristan and Frere Isolier, came 
 in before eight o'clock. At that time Coumes had not arrived. 
 The twofreres went towards the wall of the cemetery, but 
 witness having received an order from the director of the 
 Novices not to allow any one to go near that wall, he would 
 not permit them to approach. Witness, on his entering the 
 garden, had himself gone to the wall, and had trod on the 
 bed and made the footmarks. [Witness here remembered that 
 another frere, the director of the Noviciat, had by this time 
 also entered the garden.] He could not remember when 
 Coumes arrived, but it would be about eight or a little after. 
 Coumes did not ask witness who made the footmarks, but he 
 (witness) spontaneously told him that it was he who made 
 them. Being asked if he was sure, he said he was, and that 
 there were five freres present who heard him. [On being 
 reminded that he had said there were only three freres who 
 had entered the garden, he added the porter to the number, 
 and by counting himself as one, made up five. Coumes 
 being here recalled and confronted with the witness, said it 
 was impossible that he (Coumes) did not enter the garden 
 before eight, as bv that time all was over, and besides, two 
 
 Q2
 
 228 TRIAL OF LEOTADE. 
 
 freres accompanied him into the garden, and when he arrived 
 Lori en was at work. He (Coumes) then asked him who 
 made the footmarks, and it was not until two days after the 
 16th, when again in the garden moving some boxes in the 
 Orangerie, that Lorien came up and said it was he who made 
 the footmarks.] The witness Lorien on being asked if on 
 the 16th he wore shoes or sabots, said that he had been that 
 morning to chapel in his shoes, in order to make less noise, 
 but that on his entering the garden he had changed them in 
 the Orangerie for sabots. The footmarks were, however, 
 made with the shoes before he changed them. Asked why 
 he did not give this explanation when before the juge 
 d' instruction, when Coumes observed in his presence that 
 he (Lorien) on that morning wore sabots, witness denied 
 that Coumes ever said so. On being further pressed by the 
 President, the witness became confused, and fell into other 
 contradictions with the testimony of Coumes, and on the 
 application of the procureur general he was given into 
 custody. 
 
 Madeline Sabathier, the next witness called, was one who 
 at the previous trial had also been given into custody for 
 perjury, and had continued in custody until the end of the 
 proceedings, when she recanted what she had said and was 
 discharged. Of the witnesses called in the whole course of 
 the trial, there was probably not one who so fatally damaged 
 the defence as did this witness, apparently actuated by 
 nothing but an excess of religious zeal. Her evidence at 
 the first trial was to the effect that she had seen the deceased 
 outside the Institute on the morning of the 15th ; had spoken 
 to her, and had seen a man in a cloak come from the direc- 
 tion of the Institute (assumed to be Conte), with whom 
 Cecile went away. If her evidence had been true, it was a 
 complete exculpation of the Institute, for the crime then 
 must have been committed elsewhere. Unfortunately for 
 the freres they believed in the first instance that her tes- 
 timony was correct, and it was curiously enough corro- 
 borated by another witness present in the vestibule at the 
 time, who said quite spontaneously, actuated likewise by the 
 same fatal excess of zeal, that he had seen the deceased go 
 out, " and had stepped on one side to let her pass." Madeline
 
 TRIAL OF LEOTADE. 229 
 
 Sabathier was therefore set up by the Institute, though called 
 by the prosecution, as the witness who was able to exculpate 
 the whole body. Now it is obvious that even assuming them 
 to have been entirely innocent of the crime, nothing could 
 have been more fatal than endeavouring to prove a point of 
 this importance which was not true, though they might 
 have been quite innocent of any attempt at fabricating the 
 evidence. In the second trial of Leotade, though the same 
 evidence was not given by the witness, the effect of her 
 previous evidence could not but have weighed on the minds 
 of the jury, as the interval between the two trials was short, 
 and her first evidence was well known, and public feeling had 
 been terribly excited against the Institute in the meanwhile. 
 The witness was besides reminded in court of her previous 
 testimony before giving her evidence at the second trial, 
 and indeed repeated it and retracted it (a) . 
 
 Madeline Sabathier, after repeating the evidence given by 
 her at the previous trial, which she confessed was not true 
 [the evidence was to the effect that o~n the 15th she was 
 passing in front of the Institute, about a quarter past ten, 
 when she saw the deceased sitting against a wall, that she 
 spoke to her, and that a man came up from the direction of 
 the Institute, and took Cecile away with him] , admitted she 
 had been to the deceased's mother and had offered her money, 
 but asserted it was her own, and she had worked for it. She 
 then formally recanted her previous testimony, but said no one 
 had influenced her to give it or tried to induce her to keep 
 back the truth. That she had only spoken of seeing the man 
 with the cloak because she had heard it talked about outside, 
 
 (a) It will probably be remembered that in the case of The Queen v. 
 Catherine Wilson (C. C. C., Sept. 26, 1862), who was tried for murder 
 before Mr. Justice Byles, this point, the fabrication of evidence, was 
 referred to by him in his summing up, and he alluded to a very peculiar 
 case which had come under his own knowledge. A man was put on his 
 trial for the murder of a child against whom he had been heard to utter 
 threats. The child suddenly disappeared, but the body was never found. 
 The prisoner applied for an adjournment from one assizes to another, 
 and was told that if he did not produce the child he would at the next 
 assizes be undoubtedly tried for murder. At the next assizes the pri- 
 soner did produce a child, but it turned out not to be the child that was 
 missing. He was therefore convicted, and mainly on the fact of his 
 having fabricated the evidence, though the child in question was after- 
 wards proved to be alive.
 
 230 TRIAL OF LEOTADE. 
 
 and that the money she had offered to the deceased's mother 
 (four francs) was her own, and part of her monthly wages 
 of 25 francs (which the President observed was very unlikely) . 
 She had been to the Institute twice, once to tell them what 
 the report was outside, and to inform them of the evidence 
 she could give, and the second time to return a book. 
 
 Anglade, in religion Frere Lactenus, deposed that he was 
 porter at the Noviciat. On the morning of the 15th the 
 deceased arrived with her master and a workwoman, Marion, 
 with two baskets of books, about nine o'clock, Marion went 
 out after leaving the books, but the deceased remained. He 
 locked the door when Marion left, and helped Conte to carry 
 up the books. He had the key of the door in his hand. 
 When he came down again he did not notice whether the 
 deceased was in the vestibule or not; there was a ring at 
 the door, and he hastened to open it [when in a hurry this 
 witness explained he notices nothing] . The deceased might 
 have been there without his seeing her, as there were several 
 of the freres there with their relations. He could not 
 remember who was at the door when he opened it. It was 
 a fair day, and several visitors called. When Conte came 
 down from the library he asked for Cecile, and witness told 
 him she had gone out without his seeing her. Conte said as 
 she was gone he would leave the baskets. Pressed by the 
 President, the witness became confused as to whether- he 
 opened the door with the key or without when he came from 
 the library, and inclined to the opinion it was without the 
 key, that is, that when he had gone up with the books, he 
 had closed the door and not locked it, which was in contra- 
 diction with the previous portion of his evidence. When the 
 Almoner called he spoke to him at the entrance with the 
 door partly opened, and it was then in his opinion that the 
 deceased passed out behind the Almoner and without witness 
 seeing her. Asked to explain how this could be, when on 
 coming down from the library he did not see the deceased in 
 the vestibule, witness said it was still possible she might 
 have been there without his seeing her. He admitted that 
 when afterwards asked by relations of the deceased what had 
 become of her, he had said that he believed he had seen her 
 sitting in the parlour, but was not sure.
 
 TRIAL OF LEOTADE. 231 
 
 The President. Explain yourself more clearly : in all 
 probability it is you who know the secret of the whole affair. 
 When you came down from the library, the door of the 
 parlour was obstructed by some of the freres ; you could not 
 therefore see in. The deceased was not in the vestibule, accord- 
 ing to your statement ; why then did you say, when inquiries 
 were made about her, that you had seen her sitting in the 
 parlour ? 
 
 Witness. I thought I saw her. 
 
 The President. Was it not to put a stop to the inquiries ? 
 
 Witness. No ; I thought I saw her. 
 
 The witness further stated that he heard about the finding 
 of the body the next morning about half-past seven or nearer 
 eight, when the commissaire of police came for him to go to 
 the cemetery to see if he recognized the deceased as having 
 been in the Noviciat. He said he had, and that she had 
 gone out without his seeing her. [The President contra- 
 dieted him in this, and said at that time he said he had not 
 seen her go out.] On the return of the witness to the 
 Institute with Coumes he went with him into the garden, 
 where Coumes noticed the traces of footmarks near the 
 Orangerie, and Frere Lorien said they had been made by him. 
 
 The President here commenced another interrogatory of 
 Leotade as to the changing of bedrooms after the murder, 
 one of the most suspicious circumstances alleged against 
 him, from which it appeared that the murder being com- 
 mitted on the 15th, the body discovered on the 16th, on the 
 17th Leotade was removed from the room he then slept in, 
 from which communication with the garden and the stable 
 where the body was hid was easy, to a room from which 
 the garden was inaccessible. 
 
 Marion Rougmanac, the workwoman who accompanied 
 the deceased to the Noviciat, stated they arrived there a 
 little after nine. She merely entered, put down the basket 
 she was carrying, took the cloth from the basket Cecile was 
 carrying, and went out, leaving the deceased and Conte 
 inside. Pressed as to whether if two freres were talking 
 together in the vestibule she could have seen them from the 
 position in which she was placed, she stated she remained 
 only a short time, and had a large basket on her head, and
 
 232 TRIAL OP LEOTADE. 
 
 Coute -was standing before her ; she might therefore not 
 have seen them. It appeared from a question put by Leotade 
 at this point, that on the 18th the witness, on being con- 
 fronted with him, had stated she had not seen any one in 
 the vestibule but the porter, which the prosecution explained 
 away by saying that at that time the prosecution did not 
 attach much importance to the fact of Leotade and Jubrien 
 being in the vestibule. The witness was only asked whether 
 she saw anyone, not whether she might have seen anyone. 
 
 Bertrand Conte was the next witness called. It was on 
 this man that suspicion in the first instance fell, and it was 
 he who first threw suspicion on Leotade. His evidence was 
 listened to with the utmost attention. After some minor 
 matters had been deposed to, he stated that he arrived with 
 Marion and the deceased at the Institute on the morning of 
 the 15th, a little after nine. He rang at the bell, and all 
 three entered the vestibule. The first persons he saw in the 
 vestibule were Leotade and Jubrien talking together. Leo- 
 tade had a small black scull- cap on his head (calotte). 
 Jubrien had his back towards him, and had his hat on. 
 Witness said to Jubrien " Good day," but was not certain he 
 heard him. Leotade stood facing the entrance door and 
 Jubrien facing the door leading into the court. Witness put 
 down the baskets in the vestibule on the left of the porter's 
 lodge, and told Marion she might go home. He placed his 
 umbrella against the wall and told Cecile to wait until he 
 returned. He then went with the porter (who carried the 
 key of the front door in his hand) to the library. The 
 director came, and witness remained with him half or three 
 quarters of an hour. He had been there about a quarter of 
 an hour when Jubrien entered and whispered a few words 
 to the director, who gave a sign of approbation. When he 
 had finished his business with the director witness said he 
 was going that night to Auch, and if the director had any 
 commissions for him there he would execute them. He then 
 left and came down-stairs, and at the foot of the stairs found 
 Lorien, who was washing his hands. In the vestibule the 
 porter was sweeping. The umbrella he had left with Cecile 
 he found still leaning against the wall. Witness said to the 
 porter, " Where is Cecile ? " The porter replied, " I don't
 
 TRIAL OF LEOTADE. 233 
 
 know; perhaps she is gone out, or perhaps pointing to the 
 tunnel she has gone to the Pensionnat" Witness went 
 into the parlour and looked for her. She was not there. 
 He put down the baskets and went out, saying he would 
 send Cecile to fetch them. [The witness then detailed the 
 employment of his time for the remainder of the day. The 
 defence always threw suspicion on some of Conte's pro- 
 ceedings after the murder, especially on a visit he made to 
 his uncle's immediately after leaving. This uncle lived close 
 by the Institute in a street (the Rue de 1'Etoile) of very 
 doubtful reputation, and assuming the deceased to have left 
 the Institute she might have gone to Conte's uncle's house 
 (by Conte's direction) almost without being seen, and that 
 there Conte might have met her and murdered her. All 
 this is, however, mere presumption, and is not supported by 
 a particle of evidence beyond this, that the term of the 
 deceased's apprenticeship was nearly out, and that Conte was 
 alleged to have said he would carry her off before she left 
 him.] The following is Conte's explanation of how he 
 passed the rest of the day. 
 
 He first went to his uncle's and then to the diligence 
 office to take a place that evening for Auch. He got home 
 about half-past ten. On entering, his wife said, " Where is 
 Cecile?" and witness replied, " She has probably gone to see 
 her mother, who is ill." After breakfast he went to purchase 
 some wheels in company with his uncle. [The defence laid 
 great stress also upon this as unnecessary, the cart for which 
 they were required not being yet made, and alleged that 
 Conte's proceedings in going about contrary to his usual 
 custom, and on matters foreign to his ordinary business were 
 suspicious, and that he was acting with a view to proving an 
 alibi.] He then went and bought a pair of shoes. On his 
 return he saw his wife and the deceased's aunt. The latter 
 said they had been to the Institute, and the porter had said 
 he had seen Cecile sitting on a chair in the parlour, and had 
 not seen her go out. One of the women said she was sure 
 once Cecile entered the Institute, she would never come out. 
 AYitiiess to this replied that she should not speak ill of the 
 frtres ; that the deceased had most likely gone out. The 
 deceased's father then came, and they went together to the
 
 234 TRIAL OF LEOTADE. 
 
 police. Witness suggested they should go to the' Institute ; 
 the inspector said not, as the freres had not retained Cecile. 
 Witness sided with the inspector, as he did not wish to throw 
 suspicion on the Institute, and that evening, with the con- 
 sent of the police and of the deceased's father, he went to 
 Auch on business. On his arrival at Auch his first business 
 was to take a place for his return. He had gone to Audi 
 for the following purpose. Having occasion for money he 
 had drawn two bills on the director of the branch of the 
 Institute at Auch, and he had gone there to raise money to 
 meet one of the bills which fell due on the 20th. He after- 
 wards went to the director there and paid him the amount 
 of one of the bills, 115 francs. [This journey to Auch was 
 always a point regarded with great suspicion by the defence, 
 and they alleged that Conte had no actual business there, 
 and that it was unnecessary.] 
 
 On being examined by the President, witness stated he 
 was on very good terms with the Institute. He was a 
 musician and was useful to them, and they in business 
 matters were useful to him. He alleged as a reason for not 
 saying in his first deposition he had seen Leotade and Jubrien 
 in the vestibule, that he had not been asked. He denied 
 that there was one of the freres standing in the doorway of 
 the parlour masking the interior completely [in this being 
 entirely in disaccord with Freres Navarre and Janissien] ; on 
 the contrary, he said he saw in, and that there was a woman 
 sitting there with a handkerchief in her hand. Witness 
 being asked as to his knowledge of the habits and morals of 
 the accused gave some deplorable details [which Leotade, in 
 a speech of some little duration, and delivered with much 
 emphasis and great appearance of truth, most positively 
 denied.] Witness went on to state that he had other rela- 
 tions with the freres. He made for them account or memo- 
 randum books, for which he never charged. That Leotade, 
 as pourvoyeur, had more need of them than the others had. 
 One day witness said Leotade came to his shop and asked 
 for one of these books, and witness showed him one, a very 
 handsome one, which Leotade refused on account of his vow 
 of poverty. Witness therefore showed him another much 
 plainer, for which Leotade was to supply some parchment.
 
 TRIAL OF LEOTADE. 235 
 
 He asked witness what it would cost. He refused payment, 
 but later on he said to Leotade, " You have a fine collection 
 of rabbits ; you may as well give me one." Leotade pro- 
 mised witness one accordingly. Witness delivered the book 
 about twenty days previous to the murder. Leotade never 
 complained of or found fault with it, though witness saw him 
 several times after he delivered the book. 
 
 The President. Yet Leotade in one of his examinations 
 has explained that the reason for calling at your shop on the 
 16th, the day after the murder, was that the book was im- 
 perfect, that there were not sufficient leaves in it. 
 
 Witness. The book was quite complete. I could never 
 understand the reason of Leotade's calling about it. 
 
 [In order to understand the exact bearing of this portion 
 of the evidence, it must be remembered that the prosecution 
 maintained that Leotade had promised Conte some rabbits ; 
 that these rabbits were kept in the stable, supposed to be the 
 place of the murder ; that Leotade having met Cecile in the 
 vestibule, had enticed her to the stable on the plea of giving 
 her the rabbits for Conte ; that he there murdered her ; and 
 that his visit to Conte on the 16th was to warn Conte not to 
 say he had seen him (Leotade) in the vestibule on the 
 morning of the 15th. It is rather singular that both Leotade 
 and Jubrien, both of them asserted to have been in the 
 vestibule on the 15th, should both have called at Conte's 
 shop the morning of the 16th within a few minutes of each 
 other, and have asked to see Conte, both alleging reasons for 
 their visit equally unlikely.] 
 
 The witness was then examined by the President upon 
 points touching his own morality, and was obliged to admit 
 facts against himself showing great depravity, but he asserted 
 no one could say anything against him since the year 1840. 
 
 The President (to Leotade) . You have heard what this 
 witness says. His evidence touches on some very important 
 points, and particularly that you were present in the vestibule 
 on the morning of the 15th, between nine and ten o'clock. 
 
 Leotade (with much warmth) . I do not wish to refer to 
 anything the witness has said. All I can say is that he is 
 telling what is not true. I was not in the vestibule on the 
 morning of the 15th. In support of his testimony Conte
 
 236 TRIAL OF LEOTADE. 
 
 refers to his antecedents from the year 1840 to the present 
 time. I refer to mine for the whole course of my life. Ask 
 those who have known me in my own province, from my 
 birth to the time' of my first communion, and they will 
 tell you that I was the only one out of sixty who was allowed 
 to take the vows. This I owe, not to my ability or to my 
 birth, but to my good conduct. It afterwards happened that 
 missionaries came to my village. I listened to their exhor- 
 tations, and as I had always an inclination to enter religion 
 I communicated my wish to the cure, who caused me to be 
 admitted as novice in the Establishment at Toulouse. There 
 I remained three years, and afterwards I went to Mirepoix, 
 where I remained another three years, from thence back to 
 Toulouse to the Pensionnat as linger ; then I was appointed 
 pourvoyeur. Leotade then continued with considerable 
 animation to give details of his life, speaking with much 
 force, and listened to with the greatest attention. At the 
 conclusion of his speech the court adjourned amidst con- 
 siderable agitation and excitement. 
 
 On the re-opening of the court Conte was again asked 
 whether he was positive that on the morning of the 15th he 
 saw Leotade in the vestibule, and he again stated he was 
 certain of it. Leotade being questioned on the point denied 
 it, whereupon 
 
 The President (addressing Leotade) said : When Conte's 
 statement was first made known to you, you contented your- 
 self with saying that you did not remember. [The interro- 
 gatories administered to Leotade on this point were here 
 read.] On the 18th you said, questioned on the same point, 
 you were not in the vestibule nor in the parlour, you were 
 in the Pensionnat. Confronted with Conte, who described 
 your costume, you then said you did not remember. On the 
 23rd of April, asked again if between eight and ten in the 
 morning of the 15th you were in the Noviciat, you said you 
 were certain you were not there, and added you had 
 not seen Conte since the Monday previous ; so that first you 
 said " You did not remember," then you said " No," and
 
 TRIAL OF LEOTADE. 237 
 
 then again, when Conte had described your dress, " that you 
 did not remember." 
 . Leotade. It was not difficult to describe my dress. 
 
 The President. But Conte said you wore your calotte and 
 Jubrien his hat. Now the freres do not wear their hats 
 except when they go into the town. It happens you did not 
 on the 15th of April go into the town, and Jubrien did. 
 [The President was evidently mistaken in this, as Leotade 
 had, in giving an account of his employment on the 15th, 
 distinctly stated he was in the town that day, though not in 
 the morning.] Leotade in reply to this still maintained 
 with much firmness that he was not in the vestibule, and 
 that Conte was lying, to which Conte replied he had often 
 found the fr&res out telling lies. Leotade then turned to 
 the jury and addressed them with much volubility, saying he 
 would rely on their verdict with confidence ; the witnesses 
 would show whether it was he or Conte who was lying. The 
 President remarked upon this that it did not follow because 
 four or five witnesses spoke to a particular point they would 
 necessarily prevail over one ; that the court did not estimate 
 evidence by the number of the witnesses, but by the weight 
 of the testimony. (La justice ne compte pas les temoignages; 
 elle les pese.) The following portion of a dialogue then took 
 place between the President and Leotade on the relative 
 positions of human and divine justice, disclosing a theory 
 on the part of the President Hot a little startling. As no 
 translation would do justice to this singular opinion it is 
 given in the original. 
 
 Leotade. II (Conte) sera juge plus tard par Celui qui 
 nous juge tous. 
 
 The President. Nous aimons cette confiance dans la jus- 
 tice divine, mais vous aviez jusqu'ici trop de tendance a 
 Fisoler de la notre. La justice divine est I'auxiliaire de la 
 justice humaine, et si vous etiez frappe par les hommes, vous 
 trouveriez dans Vautre monde la sanction de la sentence 
 prononcee. 
 
 Leotade. J'ai confiance en Dieu; mais Conte a bien 
 menti dans tout. 
 
 Leotade then proceeded with much volubility to deny that 
 he had ever promised Conte rabbits. He had sold him them,
 
 238 TRIAL OF LEOTADE. 
 
 and he was wanting to get paid for them before he paid for 
 the book Conte furnished him with. 
 
 M. GASC. Conte has stated that he saw a woman sitting 
 in the parlour. How is it that he mentioned that in the 
 first instance, and did not mention that he saw Leotade and 
 Jubrien in the vestibule ? 
 
 Witness. I was not asked about it. 
 
 M. GASC. "When did ihejuge d' instruction inform Conte 
 of the death of the deceased ? 
 
 Witness. On Sunday, the 18th. 
 
 M. GASC. How is it then that on the 17th you began to 
 entertain suspicions as to the cause of Cecile's death. 
 
 Witness. I did not form any suspicions. 
 
 M. GASC. But in your first examination, on the 17th, 
 you said, " She very likely had been enticed into some dis- 
 reputable place and there murdered." 
 
 M. D'Cbis, Procureur General. It is not unlikely that 
 Conte, though arrested on the 16th, may not have been 
 informed of the death before the 18th, and what proves it is 
 that he said, when arrested, " I do not know what the fate of 
 the girl is, but whatever has happened I am innocent." 
 
 M. GASC. But on the 18th, directly he learnt of the 
 death, he exclaimed, " Ah ! she has been assaulted and 
 murdered." 
 
 M. SAINT-GRESSE. Conte left on the evening of the 
 15th for Auch, to take up, according to his own statement, 
 a bill which was not payable until the 20th : in doing this 
 he spent 12 francs, and solely to settle a bill of 115 francs 
 before it was due. [M. Saint-Gresse here read the deposi- 
 tions of Conte on this point, in which the juge d' instruction 
 remarked to him how very suspicious this voyage appeared 
 under the circumstances.] 
 
 The President. When the prosecution has kept a person 
 in prison for six months, it is evident that they had at the 
 time strong suspicions against him. All this is, however, 
 matter for your address to the jury. 
 
 M. GASC. Was Leotade acquainted with Cecile ? 
 
 Witness. Yes, but whether he had spoken to her or 
 not I cannot say. He knew her as he knew my other 
 apprentices by seeing her at the Pensionnat } and once I
 
 TRIAL OF LEOTADE. 
 
 remember in the procure of Frere Luc, Cecile being present, 
 dropped the cushion she used when carrying on her head the 
 baskets containing books, and Leotade stooped and picked it 
 up, and replaced it. 
 
 M. GASC. In the first instance, on returning home, did 
 Conte inform his wife that he had seen Leotade and Jubrien 
 in the vestibule?" 
 
 The President, however, objected to the question being 
 put, on the ground that it was useless, that he would not 
 allow useless questions to be put, and that he was the sole 
 judge whether a question was or was not useless. The 
 question, therefore, though as touching the credibility of 
 Conte on one of the main points of the case of some impor- 
 tance, was withdrawn. With this the examination of Conte 
 concluded. At no other part of the trial was Leotade so 
 much moved as during Conte's examination. 
 
 Jean Rudel, one of the five persons present in the parlour 
 when the deceased arrived, deposed that he went to the 
 Institute with a young man named Vidal to see Freres Navarre 
 and Limen, on the morning of the 15th, about nine o'clock. 
 He saw no one enter or leave whilst he was there. He was 
 on the point of leaving, when Vidal remembered he wanted 
 to see Laphien and Janissien, and Navarre went for them. 
 He and Vidal then went again into the parlour, and talked 
 there with ihefreres for some little time. No one stood in the 
 doorway of the parlour during this conversation [contra- 
 dicting Navarre and Janissien flatly on this point] . No one 
 rang at the front door whilst he was in the parlour. There 
 was no one in the vestibule when he left except Laphien, 
 Janissien, Navarre, the porter Lactenus, and Vidal. The 
 next day Frere Floride sent for him and Vidal to the Institute, 
 where he found a musician named Crouzat. He was asked 
 if he had seen Cecile, whose dress Frere Floride described to 
 him. Both he and Vidal said they had not. When Frere 
 Floride spoke to him about Cecile he said she had a blue 
 neckerchief. He remembered that on going to the cemetery 
 with Vidal, the latter said he wished to see if the body was 
 that of the girl he had seen leave the vestibule, at which he 
 (witness) was much astonished. Later on, the director at 
 Lavaur spoke to him about the matter, and said as Vidal
 
 TRIAL OF LEOTADE, 
 
 had seen her leave, witness ought to have seen her also. 
 "Witness replied, " Vidal may say what he likes ; he (witness) 
 should not say he had seen her leave." The director then 
 said, " Well, don't prevent Vidal from saying it." The 
 director spoke to witness very sharply, and he (witness) 
 ceased to go to the drawing class at the Institute in conse- 
 quence, and though the freres had since sent for him he had 
 not been there again. 
 
 The President. I must here remark to the jury that the 
 evidence of this witness is valuable, from the sincerity he 
 has shown both in the first trial and in this. 
 
 Vidal, his companion, was then introduced. Except Made- 
 line Sabathier, there was no witness who so seriously damaged 
 the Institute, and especially some of the directors, as this 
 witness. It was he who, as before stated, in the first instance 
 corroborated Madeline Sabathier as to the deceased having 
 left the Noviciat. Before giving his evidence he was warned - 
 by the President as follows : 
 
 The President. Your name has acquired in this affair an 
 unfortunate notoriety : you have withdrawn your previous 
 depositions. Remember that you are now going to be sub- 
 jected to a further and decisive test. Speak the truth, 
 therefore, calmly and sincerely. 
 
 Vidal then related his visit to the Institute on the 15th, 
 at about nine o'clock, in company with Rudel. He had been 
 in the Establishment three times, the 14th, the 15th, and 
 the 17th. He remained in the parlour with Navarre and the 
 freres some little time. They all left together and remained 
 only three or four minutes in the vestibule before he and 
 Rudel left. There was no one in the vestibule, and he did 
 not hear the bell ring nor see the door open. No one could 
 ring without his hearing. He saw neither the deceased, nor 
 any girl or woman, nor the Almoner. The next day he 
 heard that the body of a girl had been found in the cemetery, 
 and he went to see it, arid again the day following the 
 17th, but whether he went before or after seeing the freres 
 at the Institute he could not remember. 
 
 The President. Had you said to Rudel, " I want to see the 
 body, to see whether I can recognize the girl whom I believe 
 I saw in the vestibule ?"
 
 TRIAL OF LEOTADE. 241 
 
 Witness. I said this on the Saturday, in the cemetery ; 
 it would be after I had left the Institute. 
 
 The President. When you were at the Institute on the 
 17th, and being interrogated, did you say you had not seen 
 the deceased? 
 
 Witness. I said to Rudel I believed I had seen her. It 
 was then that the idea first came into my head. 
 
 The President. But you said to the freres at the Institute 
 you had seen no one. Did they describe the deceased's 
 dress to you? 
 
 Witness. They said she wore a blue neckerchief with 
 white spots. 
 
 The President. From thence you went to the office of 
 the diligence for Lavaur, where you saw a man named 
 Bonhomme ? 
 
 Witness. Yes, and I said to him that I had seen the 
 deceased. 
 
 The President. Did not Rudel express himself much 
 astonished that you should see what he had not seen 
 himself? 
 
 Witness. Yes. But I had got the idea into my head 
 that I had seen the deceased, and I believed it. 
 
 The President. But when a person does not habitually 
 tell falsehoods, he does not believe he sees anything that he 
 does not in fact see. Had any one asked you to say you 
 had seen the deceased ? 
 
 FFitness. No one. 
 
 The President. Did you really see her or not ? 
 
 Witness. I did not. 
 
 The President. Did you see the empty baskets in the 
 vestibule ? 
 
 Witness. Yes. 
 
 The President. Did you really see them, or do you 
 merely believe you saw them ? 
 
 Witness. I am certain I saw them. 
 
 The President. I very much fear you did not see the 
 baskets either, as you must in that case have seen the 
 deceased also. 
 
 Witness. I am quite positive I saw the baskets. 
 
 M. GASC. His statement is positive on this point.
 
 242 TRIAL OF LEOTADE. 
 
 The President. There is always a danger when a -witness 
 has once commenced a system of untruths. He has been 
 living all along in a world of illusions, and I am qnite jus- 
 tified in asking him whether what he is saying belongs 
 really to the domain of truth or falsehood. (To the 
 witness.) Vidal, you have deposed before ihejuye d'instruc- 
 tion that it appeared to you you had seen the deceased leave 
 the vestibule, and since you have stated that it was a false- 
 hood. Do you now tell the jury that what you said at the 
 first trial was untrue ? 
 
 Witness. I did not see any one. What I said then was 
 false. 
 
 The President. And you all five left the parlour together. 
 
 Witness. Yes. 
 
 The President. If therefore you did not see any one, the 
 others could not have seen any body either. 
 
 Witness. No. 
 
 M. GASC. 1 wish to observe that Vidal saw the baskets : 
 and I take him, as the prosecution takes him, with all his 
 hallucinations. 
 
 M. SAINT-GRESSE. The witness also says that on the 
 ]6th he told Bonhomme he had seen the deceased leave; 
 that was before the interview with the freres on the 1 7th. 
 
 The President (to witness). How is it that you said that 
 on the 16th? 
 
 Witness. Because then I thought it was true, but now 
 I do not. 
 
 The witness then went on to state that the director at 
 Lavaur, the Frere Auricule, after speaking to him on the 
 subject, asked if he had seen the deceased. Witness said he 
 thought he had seen her leave; thereupon the director said, 
 " If you think you saw her, it must be because you did see 
 her, and you must say so." The director then paid the fare 
 for witness to Toulouse, and took him to the Institute. On 
 his arrival Laphien, Navarre, and Janissien were sent for, 
 and he was asked what he knew. A representation was 
 made on the spot of how the freres, Rudel, and the witness 
 were placed on the 15th of April. Afterwards they all went 
 up into the library, where the Freres Floride, Irlide, Auricule, 
 Laphien, Janissien, and, as witness believed, Liefroy, also were
 
 TRIAL OF LEOTADE. 243 
 
 present [most of them, as the President remarked to the 
 jury at this point, the highest dignitaries in the Institute]. 
 Frere Irlide put questions : the other freres said what they 
 knew : that they had seen the Almoner : that he had put his 
 head into the parlour : and one frere said he had heard the 
 word dinner mentioned. Witness was also questioned. At 
 first he said he had not seen the Almoner. Then he was 
 asked if he had seen the deceased, and witness said he 
 believed he saw her. 
 
 The President. Have you not said you saw the Almoner's 
 soutane ? 
 
 Witness. I said so here at the last trial. 
 
 The President. You now acknowledge it was not true ? 
 
 Witness. I knew at the time it was false, only as the 
 others said so, I did as they did. 
 
 M. SAINT-GRESSE here read the deposition in which 
 Vidal had stated this fact about seeing the Almoner, and re- 
 marked that two freres examined previous to Vidal had stated 
 they had not seen the deceased, and that Vidal afterwards 
 said that he (Vidal) did see her. The statement therefore 
 came from the witness first, whilst the prosecution sought to 
 assign to it a different origin. 
 
 M. D'Oins. The witness first said that he saw the 
 Almoner, that he heard the bell ring, and that he believed he 
 saw the deceased leave the Institute. He retracts every- 
 thing now ; the statements therefore take their origin 
 from this pre-arranged meeting in the Institute with the 
 directors. 
 
 Navarre Antoine, in religion Frere Marie Liether, deposed 
 that on the 15th he went to the parlour at about half- past 
 eight o'clock, where he saw Vidal and Rudel. He saw Frere 
 Jubrien arrive and speak to two men in the parlour. Jubrien 
 took one of them by the arm, and they all three went 
 away. When lludel and Vidal were on the point of leaving, 
 one of them asked to see Janissien and Laphien, and 
 witness went to ask Frere Liefroy's permission. The wit- 
 ness, who gave his evidence with much dramatic action and 
 entirely without being questioned, proceeded as follows : "I 
 said we would return in five minutes. The director said to me, 
 " My friend, we will see whether you remain five minutes or 
 
 R 2
 
 244 TRIAL OF LEOTADE.. 
 
 longer.' I looked at the clock, which wanted five minutes to 
 nine." [It will be seen this is in contradiction with the original 
 statement made by him, and embodied in the acte d'accu- 
 sation, p. 210. ,He here says the second interview com 
 menced at five minutes to nine, whereas it was, according to 
 his previous statement, the first that commenced at that time. 
 As a question of credibility, this* discrepancy is not unim 
 portant.] He continued : " I went down, opened the door of 
 the parlour and saw that FrereFloride and another person were 
 there. After the interview, I got up, opened the door, and 
 stood on the threshold in this manner." [Here witness rose up 
 and showed with several expressive gestures the position iii 
 which he stood.] ' ' At this instant I saw M. Coute, who was 
 entering the vestibule. I noticed two females behind him, 
 one of whom was taller than the other. M. Conte removed 
 the cloth from the top of the basket which was over the 
 books. Then I made a turn of the head in this manner 
 [witness again showed with considerable self-possession how 
 he stood] and saw M. Conte on the point of leaving the ves- 
 tibule for the library. I then returned into the parlour and 
 rejoined Vidal, Rudel, and the other freres ; they were looking 
 at the portrait of St. Joseph, and talking about drawing. 
 I rang the bell for the porter to open the door for them, and 
 we all went into the vestibule together. AVe stood in this 
 manner M. Vidal was close by me ; Janissien was talking, 
 and so loud it was almost impossible to hear any one else 
 speak ; Laphien was near Janissien. At this moment Vidal 
 changed his position to listen to Janissien, who turned to 
 him and made some inquiries about an old schoolfellow. 
 The porter seeing that Vidal and Rudel did not go out, 
 and tired of waiting, pushed to the door which he had 
 opened, but without closing it entirely, and retired a little 
 way off, and began to tell his beads. Suddenly there was 
 a ring at the bell ; the porter advanced to open the door ; he 
 had the key on his left arm, the palm of his right hand across 
 his breast. It was the Almoner Perles who had rung, and 
 he stood talking with the porter. At that moment I saw 
 a female behind him, who tried to look in. Rudel and Vidal 
 then left, and I went back in the interior of the Institute. 
 On arriving at the school-room door I found M. Coute. It
 
 TRIAL OF LEOTADE. 245 
 
 was then twenty minutes past nine. [Considerable sensation 
 followed the deposition of this witness. After concluding it 
 lie sat down, crossed his arms over his chest, and slightly 
 hung down his head, waiting to be questioned] . 
 
 On being interrogated by the President (who expressed his 
 opinion that there was not a word of truth in his statement) 
 the witness fell into several contradictions, and his memory, 
 on being tested on minor points, was found defective. He 
 could not say how the female behind the Almoner was dressed, 
 but was quite sure he saw the Almoner. [The porter being 
 confronted with the witness, they did not agree as to the 
 time when the door was opened for the Almoner.] Asked if 
 he heard the Almoner speak, he said he did not, but he 
 gathered from the way in which the porter stood, he was 
 listening. Pressed as to the rehearsal scene in the library, 
 he could not say who was present ; and asked why he had 
 not mentioned the two men whom Jubrien went to meet in 
 the parlour and took away with him before, he said he had 
 only just thought of it. Being asked if they were in the 
 parlour when he first went to see Rudel and Vidal, he said 
 he thought they were. [These two latter, being confronted 
 with him, said they were not ; and being asked whether 
 Navarre at any time stood in the doorway of the parlour and 
 remained there some minutes, they distinctly and emphatically 
 denied that he did, but on the contrary, said that Navarre 
 was sitting down with them the whole time inside. This 
 contradiction is important, because Navarre, from his alleged 
 position, would be enabled to deny, and in fact did deny, the 
 truth of Conte's assertions, that on his (Conte's) arrival with 
 the deceased into the vestibule with the books, Jubrien and 
 Leotade were present. On the witness being further pressed 
 as to the rehearsal scene, he said it was Vidal who put the 
 freres in their places, whereas Vidal being confronted with 
 him, said the freres placed chairs to represent them- 
 selves.] 
 
 Clausade, in religion Frere Laphien, proved that he went 
 with Janissieu to the parlour to see Vidal and Rudel. No 
 one else was there. He saw Conte enter with some baskets. 
 Afterwards saw the porter open the door (but whether with 
 a key or not he could not say), and the Almoner entered
 
 246 TRIAL OF LEOTADE. 
 
 a little distance. He saw something pass behind the Almoner, 
 but could not say what it was. Asked as to who was present 
 at the rehearsal scene, he said he thought Auricule was there, 
 that Irlide was not. Floride he believed was there, but could 
 not say for certain, and Liefroy he believed was not. [Navarre 
 being recalled, said Irlide and Auricule were there, but he did 
 not see Floride.] 
 
 Marcellin Pellie", in religion Frere Janissien, deposed 
 that whilst Rudel, Vidal, Laphien, and himself were in the 
 parlour, Navarre stood at the door. Then there was a ring 
 at the door, which was opened, and he saw the Almoner, who 
 entered and came partly into the parlour. 
 
 L'Abbe Perles, the Almoner, deposed that on the 15th, 
 between nine and half-past, he called at the Institute and 
 spoke for a few minutes to the porter. The door was closed 
 when Jje arrived. He entered a step or two and remained 
 about five minutes. He believed there were others in the 
 vestibule at the time besides him, but was not certain. 
 
 Frere Lie'froy, the director of the schools, gave evidence as 
 to the visit of Conte on the morning of the 15th with the 
 books. He first heard of the body being found at about eight 
 o'clock on the morning of the 16th. He had occasionally 
 seen females inside the Pensionnat, but he always directed 
 that they should go out. He denied most positively that any 
 overtures had been made to any persons to procure witnesses 
 to say they had seen Cecile leave the Institute. On being 
 asked whether on the 15th, between the hours of eight and 
 half-past ten, the letters containing the compte de conscience 
 were required to be written, he said it was not so in the 
 Noviciat, but might be so in the Pensionnat. [This 
 writing of the comptes de conscience, it will be remembered, 
 was one of the points relied upon for the defence as engaging 
 Leotade in the Pensionnat at the time he was alleged to be 
 in the Noviciat^] 
 
 Pierre Aragon, in religion Frere Jubrien, deposed that on 
 the 15th two persons had come to see him at the Institute. 
 He went to the parlour between eight and nine and saw 
 M. Salinier and a horse-dealer who was with him. They went 
 together to the stable to examine a pony, and remained there 
 three quarters of an hour. lie could not remember whether
 
 TRIAL OF LEOTADE. 247 
 
 he saw Leotade on that day or not. He admitted that lie 
 and Leotade had had an interview together relative to 
 sending for some wine from Saint-Simon, and believed that 
 conversation took place on the Friday, the 16th, between 
 seven and eight in the morning, and in the Noviciat, but was 
 not sure. [The prosecution contended that it was on the 
 Thursday, the 15th, and at the very time that Conte arrived 
 with the deceased, and that Leotade had gone to the Novictat 
 for the purpose.] The witness, however, denied most posi- 
 tively seeing Leotade in the vestibule on the morning of 
 the 15th, and he denied seeing Conte. This latter being 
 confronted with him, asserted he had not only seen him but 
 saluted him and said " Good day," and that Jubrien never 
 returned the salute or made any answer. Asked as to the 
 compte de conscience, the witness said the pourvoyeurs were 
 not exempt by the regulations from having to render it. 
 [Leotade was pourvoyeur for the Pensionnat, and witness for 
 the Noviciaf] , but they might be exempt personally on account 
 of their duties. He admitted having gone to Conte's house 
 for some pasteboard on the morning of the 16th, and that 
 he asked to see Conte, who was absent. 
 
 Madame Conte deposed that Jubrien called at her hus- 
 band's house at half-past eight on the 16th, and Leotade a 
 few minutes after. Jubrien asked if Conte was in ; witness 
 said no, and he left. Ldotade also asked for Conte, and said 
 his memorandum book was not what he wanted. He after- 
 wards said, " The deceased worked with you ;" and witness 
 replied, " You knew her well enough ; she entered your 
 place and never came out again." Leotade turned his back 
 and made some exclamation. 
 
 M. Dambarbe Lajus deposed that on the 16th, about ten 
 or half-past, Leotade and another frere came to his shop to 
 pay a bill. Witness spoke to Leotade about the body of the 
 deceased having been found in the cemetery, and that he 
 understood she had been to the Institute the day before with 
 a bookbinder. " That person was Conte," said Leotade \ 
 " we have just been to his house ; he has left for Auch, the 
 wretch ! If we had only known his antecedents, he would 
 have had nothing to do with the Institute." He then left, 
 saying, " One cannot positively say it is Conte, but ."
 
 248 TRIAL OF LEOTADE. 
 
 On the 19th, Leotade again came to his shop, and witness 
 questioned him about Conte, who at that time had been 
 arrested. Leotade said, "The police brought Conte to 
 the Institute yesterday. He was very crestfallen ; he kept 
 his head down. When a man has nothing to fear he 
 holds his head up." Witness said, " It's all your fault. 
 So long as a man goes to mass, you believe in him/ 7 
 Leotade denied the truth of this conversation, and said the 
 remarks about Conte proceeded in the first instance from the 
 witness, and took place, not on the 16th, but on the 19th. 
 The witness, pressed by the President as to whether he was 
 confounding the two dates, was positive he was not : the 
 conversation took place on the 16th. Asked by the President 
 whether he mentioned the fact of the conversation to his 
 wife, he said he did. [A question similar in character, as to 
 whether Conte had told his wife that he had seen Leotade 
 and Jubrieii in the vestibule on the morning of the 15th, 
 it will be remembered, was not allowed, on the ground that 
 it was useless.] 
 
 Suzanne Canal, a servant of Laj us, and Madame Lajus, his 
 wife, both confirmed the testimony of the last witness as to 
 the conversation about the antecedents of Conte taking 
 place on the 16th. The latter said her husband told her of 
 it the same day. 
 
 Baptiste Lamorelle, a servant in the Institute, deposed 
 that on the 15th he went into the town to get an iron gate 
 which had been ordered, and returned with the workmen 
 about seven o'clock. He then got his breakfast, and after- 
 wards went to work, but where he could not remember. 
 About twelve or before, he went to the stable with a workman 
 called the Parisien. He saw Leotade that morning in the 
 ^cellar, but could not remember the exact time. 
 
 M. GASC. Were you in the loft on the morning of the 15th ? 
 
 Witness. Yes, I went there to give food to the horses 
 about twelve. 
 
 M. GASC. If you had seen a body there you would have 
 said so? 
 
 Witness. Yes : even if it had been my own father who 
 had committed the crime. In reply to the procureur general, 
 he said the window of the loft, which looked into the garden,
 
 TRIAL OF LEOTADE. 249 
 
 was used to get in the hay by, and that he occasionally left 
 the key of the stable underneath the door instead of carrying 
 it about with him. M. Gasc here applied that the jury 
 should be allowed to visit the Institute, but the procureur 
 ytntral opposed the application, and the President refused it, 
 on the ground that it would be " inconvenient and would 
 prolong the trial." At the previous trial this inspection of the 
 localities had been allowed (a). 
 
 Frere Ibramion, the linger of the Noviciat, and Frere 
 Luciolat, the linger of the Pensidnnat, gave evidence to the 
 effect that they could not identify the shirt No. 562 on 
 which the stains were. It was not impossible for shirts 
 belonging to the Noviciat to get mixed with those belonging 
 
 (a) The incident of the visit of the court to examine the Institute at 
 the last trial was effected with much solemnity, and it was undoubtedly 
 of great service in enabling the jury to understand the very intricate 
 nature of some portions of the evidence. Both Leotade and Lorien (who 
 was then in custody on a charge of perjury) were present. Leotade 
 was frequently interrogated 011 the spot by the President on certain 
 points touching his conduct or employment on the clay in question. 
 Though the Institute was inhabited by several hundred freres and a large 
 number of novices and scholars, together stated to be nearly 500, not 
 the slightest notice was taken by any body of the visit, though conducted 
 with some considerable amount of pomp. The freres were found going 
 about their usual duties when the court arrived, and they continued 
 them without the least interruption. Even the few scholars and novices 
 who were seen at the windows didnotevince the slightest surprise at the 
 unusual and unexpected appearance of this large body of visitors, and 
 scarcely looked at them. The few freres who came in contact with the 
 court during the course of their visit, in the corridors, dormitories, 
 garden, or elsewhere, saluted calmly and cheerfully both Leotade and 
 Lorien, but as far as the other personages were concerned they might 
 not have been in existence, so utterly was their presence ignored. The 
 calmness and self-command of Leotade whilst visiting the places 
 supposed to be connected with the murder, and which, if a guilty man, 
 must have been a terrible ordeal, are described as being perfectly wonder- 
 ful. The only person in the least affected during the visit was Lorien at 
 seeing the havoc inflicted by the gens d'armes and visitors on his flower 
 beds. On entering the doors of the Institute the court seemed to come 
 in contact with an atmosphere of resistance and opposition, none the 
 less effectiial because it was passive, and which probably tended not a 
 little to prejudice the minds of the public against the freres. The visit, 
 however, as an inspection of the localities, was of importance, as it went 
 to show the almost insurmountable difficulties Leotade would have had 
 to contend with if he had committed the murder, and to suggest the 
 impracticability of his being able to perpetrate the crime and conceal 
 it, without an accomplice. For this reason he was probably refused the 
 inspection at the second trial.
 
 250 TRIAL OF LEOTADE. 
 
 to the Pensionnat. All of them were nearly alike. They 
 could not say the number of them in the Institute. 
 
 Joseph Bacon, in religion Frere Leri, deposed that the 
 shirts of the Noviciat and Pensionnat were used in common. 
 He saw Leotade on the 15th in the corridor of the Pensionnat 
 between nine and ten. Leotade asked him to get some 
 plaster to cover the holes some workmen had made in fixing 
 a gate. 
 
 Marie Melet, the mother of the witness Conte, who de- 
 scribed herself as a money changer, and in fact did get her 
 living by changing copper money in the markets, deposed 
 that on the 16th April she met Jubrien/ and said to him, 
 " Is it true that a girl has been found in the cemetery who 
 works at my son's." Jubrien said he did not know any- 
 thing about it. On the same morning Jubrien came to her 
 son's shop, and asked for him. On being told he was at 
 Auch, Jubrien went away without asking for anything. 
 
 The President to Jubrien (who was confronted with this 
 witness). There is something very important in this state- 
 ment. On the morning of the body being found you go to 
 Conte's house, for what purpose, or what you would have 
 said to him if he had been at home, we do not know, but 
 probably to tell him not to say anything about you and 
 Leotade being in the vestibule when the deceased arrived. 
 Conte not being there, however, you do not know what to 
 say. Your own statement is that you went to ask for some 
 pasteboard, but you come away without asking for any. Of 
 all the questions put to you, the only one which you have 
 answered clearly and positively is, ' ' Were you in the vestibule 
 with Leotade?" At first you said you did not remember, 
 and then when Leotade denied it, you denied it as well. 
 Jubrien, in reply to these remarks, said it was possible he did 
 make the remark to Madame Conte that he knew nothing 
 about the matter, but was not sure. He insisted he had 
 only gone to Conte's shop to get some pasteboard [which, 
 however, as the President remarked, he did not ask for], 
 and admitted on the 15th he was in the vestibule between 
 nine and a quarter past, but denied positively meeting 
 Leotade there. [In his evidence in chief he said he (witness) 
 was there between eight and nine.]
 
 TRIAL OF LEOTADE. 251 
 
 M. Thoulouse deposed that he was employed to make 
 inquiries from a pupil in the Institute named Laporte 
 whether it was true what he had said that he had seen 
 Leotade in the work-room at nine or half past on the morning 
 of the 15th. Laporte on being pressed, said that the frtres 
 had questioned him three times on the matter, and that they 
 repeated so often that he had seen Leotade in the work-room 
 that he finished by saying it also. Laporte himself being 
 called, corroborated this, and said he told the untruth in the 
 first instance from a fear of being punished. At the first 
 trial he had been summoned by the defence, and had given 
 the same evidence, and on his afterwards going to the 
 Institute Frere Floride treated him very harshly, called him 
 jjoHsson, drole, &c., and said he had brought scandal on the 
 Institute. 
 
 Auguste Amilhau, in religion Frere Floride, deposed that 
 on the 16th (the juge d' instruction having authorized him 
 to collect information) he sent to Crouzat at Lavaur to 
 send Rudel and Vidal to the Institute. On their arrival 
 witness asked them if they had seen the deceased. They 
 said they had not, and so the interview terminated. He 
 denied having given them any information as to how the 
 deceased was dressed. On the 24th April Vidal was brought 
 again to the Institute by the director of Lavaur, and said he 
 had seen Cecile leave. Witness replied that on the 17th he 
 had said he had not seen her. Vidal answered it was 
 because he had been told to mind his own affairs. Witness 
 urged on him not to say anything but the truth, whereupon 
 Vidal said he was sure he had seen the deceased, and had 
 stepped on one side to let her pass. Witness asked how she 
 was dressed, and Vidal replied he did not pay sufficient 
 attention. Witness did not hear of the handkerchief with 
 the white spots until three months after from M. Plassan, 
 chemist. Witness said all this took place in the parlour and 
 in the vestibule, and that Vidal did not enter into the 
 court. Vidal received two francs from witness to get his 
 dinner with, as he did not think it right he shoiild dine at 
 the Institute. Witness protested against the imputation 
 made by the prosecution that the directors of the Institute 
 were instructing the freres in the parts they should play.
 
 252 TRIAL OF LEOTADE. 
 
 Towards the end of July witness said lie heard that a shirt had 
 been found which the prosecution looked upon as important, 
 and he went to ihejuye d' instruction to request, as there 
 were upwards of 100 novices who had not been asked any- 
 thing about the linen, that further inquiries might be made. 
 He denied being present at the scene in the library. [Vidal 
 being confronted with him, said the director of Lavaur, 
 Frere Irlide and the witness were all present] . As to 
 Laporte's evidence he admitted he had impressed upon the 
 witnesses the necessity of putting their depositions into 
 writing, lest they should forget it. 
 
 Pradoni, in religion Frere Luce, proved that about eighteen 
 months ago he gave to Leotade a key which opened the 
 door of the room where the clothes were kept. 
 
 Jean Cazeneuve, in religion Frere Irlide, deposed that he 
 heard of the finding of the body on the morning of the 16th. 
 He himself suggested that the footmarks should be covered 
 with boards and preserved. Near the Orangerie he found a 
 piece of cord, which he picked up and gave to Coumes. He 
 was not present when the footmarks there were first dis- 
 covered by Coumes. [Lorien had said he was.] Asked as 
 to the changing of rooms by Leotade, he said that the 
 change took place on the night of Saturday, the 17th. 
 Leotade had slept in the dormitory from which he was 
 removed [his bed was next to the witness's] about three 
 weeks. Witness admitted, with some hesitation, that he 
 was present at the rehearsal in the library, and that Floride, 
 Laphien, Janissien, and Liefroy were there with Vidal. The 
 interview between Rudel, Vidal, and the three freres was talked 
 about, and Vidal said he had seen the deceased leave the 
 establishment. Witness said to Vidal that he ought to be 
 quite sure of it before he said so, and Vidal replied he was 
 positive. The advisability of producing Vidal on the part of 
 the defence was talked of. Witness was opposed to it, and 
 Frere Floride also. At this interview each of the freres 
 said what he knew. Afterwards they all went down to the 
 vestibule, and each showed the place he occupied at the time. 
 Asked as to .the interview with the witness Laporte, witness 
 said he had seen him two or three times to ascertain if he 
 was telling the truth, but denied that he suggested to him
 
 TRIAL OF LEOTADE. 253 
 
 anything. Asked as to whether, after the first trial, when 
 Laporte called for his expenses, he had treated him harshly 
 and called him names, witness said, amongst some laughter, 
 that he could not remember the precise terms he used. He 
 admitted having procured from some of the pupils a state- 
 ment in writing, in order to ascertain those who had come in 
 contact with Leotade on the morning in question, but he 
 alleged, more by way of fixing their memories than for the 
 purpose of instructing them what to say. 
 
 With the evidence of Frere Irlide the case for the prosecu- 
 tion may be considered closed. Several of the witnesses 
 called by the prosecution gave evidence in favour of rather 
 than against Leotade ; and in order to make the trial as clear 
 as possible they have been inserted, not amongst the wit- 
 nesses for the prosecution, but amongst those for the defence. 
 The witnesses generally appear to have been examined 
 entirely without reference to what the purport of their evi- 
 dence might be, and to have been called quite indiscriminately. 
 Some of them who have been retained in the foregoing report 
 as witnesses for the prosecution in reality gave evidence more 
 for Leotade than against him, such as Navarre, Lactenus, 
 Jubrien, Marion, and others. On analyzing the evidence 
 obtained the net result seems to be this : That the deceased 
 was seen to enter the vestibule on the 15th, about a quarter 
 past nine: that there were present there undoubtedly Navarre, 
 Laphien, Janissien, the porter Lactenus, and Rudel and 
 Vidal : that the deceased was found dead next morning in the 
 cemetery, and from the post mortem must have met her death 
 about ten o'clock on the morning of the 15th : that there 
 were found upon her, and especially in her hair, particles of 
 clover and some flowers, similar in character to the clover in 
 the hay-loft in the Institute, and to the flowers growing on 
 the top of the wall of the garden, and dissimilar to the flowers 
 on the top of the wall of the Rue Riquet : that there were 
 footmarks on the garden bed, and marks of a ladder on the 
 soil of the garden, and, as exclusive of the probability of the 
 deceased having been carried and placed where she was 
 found, that there were no footmarks on the grass in the
 
 254 TRIAL OF LEOTADE. 
 
 cemetery. These, \vith the rather doubtful evidence of the 
 experts as to the " perfect identity " of the grains of fig 
 found on the deceased's clothes with those found on the shirt 
 No. 562, and which will be seen was contradicted by two other 
 experts on the part of the defence, form the whole of the 
 evidence, not against Leotade, but against the Institute, 
 as being the locality where the deceased was last seen alive. 
 That the deceased was never seen to leave the Institute 
 seems to be the only fact proved in the whole course of the 
 trial with anything like certainty ; and if instead of the 
 Institute being a place inhabited by 500 persons, it had 
 been an ordinary house inhabited by one man, and that man 
 Leotade, this fact alone would probably have .been sufficient 
 to bring the crime home to the prisoner. But the only evi- 
 dence connecting Leotade with the murder was the simple 
 assertion of Conte that he and Jubrien were in the vestibule 
 at the time of the deceased's arrival with the books. This 
 point is spoken to by Conte alone ; neither Marion nor Yidal 
 and Rudel, all three unconnected with the Institute, corro- 
 borate him, and he is directly contradicted by Navarre, and 
 in the first instance by Marion also. One curious point in 
 the trial is (and of five reports examined all of them are 
 unanimous on this point) that neither Lactenus nor the other 
 frtres present in the parlour, nor even Rudel and Vidal, 
 were ever asked whether they saw Leotade at the time when 
 the deceased arrived at the Institute an important and 
 unaccountable omission. Such are the facts as drawn from 
 the witnesses for the prosecution alone : when considered in 
 connection with the witnesses for the defence the case set 
 up by the prosecution against Leotade becomes even less 
 tenable. 
 
 The first witness called for the defence was 
 
 Louis Bonnhour, ahorse-dealer, who deposed that on the 15th, 
 a little after eight, he went to the Institute with a man named 
 Salinier. They went into the parlour, and about a quarter of an 
 hour afterwards Vidal and Rudel entered. After them came 
 Jubrien, and the witness and Salinier spoke to Jubrien about 
 a mare that was for sale, and they all three went out to see 
 the mare in the stable, and after that they went and saw the
 
 TRIAL OF LEOTADE. 255 
 
 cows. At that time it had struck nine. Witness was positive 
 when he entered the parlour no one was present, but that 
 Vidal and Rudel came in afterwards. These latter being 
 confronted with the witness, they declared they did not see 
 him in the parlour on the 15th on their arrival. 
 
 M. Salinier, the companion of the last witness, deposed 
 that Vidal and Rudel were in the parlour on the 15th when 
 he and Bonnhour arrived; that there were four persons present, 
 and only one of them a/rtre, and he was not Navarre, being 
 much stouter. 
 
 [The President here remarked that it appeared these two 
 witnesses left a little after nine, which would not make it 
 impossible for Jubrien, after their departure, to have been in 
 the vestibule at a quarter past nine, when Conte and the 
 deceased arrived ; but Jubrien being there does not of course 
 affect Leotade.] 
 
 Frere Adelphe, sub-director of novices, deposed that he was 
 in the garden on the 15th April, and that the traces remarked 
 near the Oratory must have been made by him and another 
 frere who accompanied him. The witness further stated 
 that at the time when he was examined by the^'w^e d' instruc- 
 tion on the subject of the comptes de conscience, he said no 
 one was excused from making them, and that they would be 
 made in the November preceding his examination as well as 
 in April. 
 
 The President. As you draw the attention of the jury to 
 the compte de conscience it is right to put the matter before 
 them exactly. Leotade in the account he gave of the employ- 
 ment of his time on the morning of the 15th mentioned the 
 time which he was engaged in writing the compte de con- 
 science. It is stated that these comptes de conscience are 
 made in the Institute every two months. When inquiries 
 were made on the subject it was the 15th of December ; and 
 after receiving this account given by Leotade the Freres 
 Floride and Jubrien were questioned on the same point, and 
 they replied they knew nothing about it. It was then 
 endeavoured to ascertain when the last compte de conscience 
 was made, and Frere Luce said he could give no information 
 on the matter. Frere Adelphe, questioned, said they would 
 be made in November, and that there ought to be a letter
 
 256 TRIAL OF LEOTADE. 
 
 from Paris acknowledging their receipt, and showing they 
 were made on the 1 st of November. 
 
 These contradictory answers being thought very suspicious, 
 interrogatories were issued, directed to the Superior General 
 at Paris, who stated that he received the compte de conscience 
 Q.t the time indicated. 
 
 Later on he produced a letter from Frere Irlide fixing the 
 date of the compte de conscience the 6th October. Three days 
 after that the Superior General voluntarily sought out the 
 juge d } instruction, and said he had made a mistake, it was in 
 the month of November that the comptes de conscience had 
 been made. It is, however, important to bear in mind that 
 at the same time that inquiries were being made at Paris on 
 this point, inquiries were also being made at Toulouse, 
 and that sufficient time had elapsed since the inquiries had 
 taken place at Toulouse for the Superior General to be 
 informed of what had taken place. 
 
 M. D'Oiis. There were two inquiries, first, to ascertain 
 if the comptes de conscience were made on the 15th of April 
 at Toulouse, and secondly, as it was alleged they were made 
 every two months, to ascertain if they were also made on 
 the 15th December, on which day, according to the above 
 calculation, they would be again due. On the 17th Decem- 
 ber, Jubrien being examined as to his compte de conscience, 
 said some of tkefreres were excused from making it, and 
 that he was one of them. Frere Floride, examined on the 
 same point, said he did not know whether the comptes de 
 conscience were made on the 15th December or not; and 
 other freres stated the same. At the same time, in Paris, 
 Frere Jorson declared he had not received any letter in 
 December or November, and the jury will notice that whilst 
 Frere Adelphe asserts he sent his compte de conscience on 
 the 18th November, Jorson at Paris denies that he received 
 any, except in October; but on the 21st December, by which 
 day letters from Toulouse could be received in Paris, 
 Jorson declares that it was by mistake he said he had not 
 received any but in October ; the letter accompanying them 
 was dated the 6th October, but it was a mistake, it ought to have 
 been dated on the 6th November. Frere Adelphe here asked 
 for his second deposition to be read, from which it appeared
 
 TRIAL OF LEOTADE. 
 
 257 
 
 EXPLANATION OF THE ABOVE PLAN. 
 
 1. Entrance into the Vestibule of the Noviciat in the Rue Riquet. 2. The 
 Porter's Lodge, 3. The Parlour. 4. The Stairs leading to 5, the Library aud 
 Rooms above. 6. The Linen Room belonging to the Noviclat. 7. The Cor- 
 ridor leading to it, and to (8) the shoemaker's workshop ; P, and the dotted line 
 running from the Vestibule through the Tunnel under the Rue Caraman, repre- 
 sent the supposed route of Cecile from the Vestibule to 10, the Stable, and 11, 
 the Hay-loft above, where the murder was supposed to be committed. 12 and 
 13. Another Stable. 14. Cart-shed. 15. Entrance into the Garden from the 
 Rue Riquet. 16. Orangerie. 17. The wall separating the Institute Garden 
 from the Cemetery, the figures in the angle near the Orangerie being where 
 the footmarks were found. 18. The Wall separating the Cemetery from the 
 Rue Riquet. 19. The place where the Body was found. 20. The Oratory 
 belonging to the Cemetery. 21. The Oratory in the Institute Garden. 
 22. The route supposed to be followed by Leotade from the Dormitory in the 
 Pensionnat (23) on the second floor to 11, the Hay-loft, which he would 
 have to enter by the window, and from thence to carry the body to the 
 angle (17) formed by the Orangerie with the garden wall where the ladder was 
 placed. 24. Separate Entrance to the Pensionnat from the Rue Caraman. 
 (In the plan these figures are erroneously printed " 20 " instead of " 24.") 
 25. Entrance to the Barracks, where a sentry was on guard the whole night. 
 At the Cross X in the Rue Riquet was a lamp, fixed on the Wall of the 
 Orangerie, which rises considerably above the level of the Walls 17 and 18. 
 The lamp would light the corner in the Rue Riquet where a person would have 
 to stand to throw a body into the Cemetery so as to fall in the place where 
 Cecile was found, but would throw the corner inside the garden, at the figure 17, 
 where the footsteps were found, and where the ladder was supposed to be 
 placed, into comparative darkness. A person on the ladder, with his back to 
 the wall of the Orangei-ie, would run scarcely any risk of being seen, owing to 
 this shadow. The Stables and Cart-shed, 10, 11, 12, 13, 14 on the Plan, are 
 not quite drawn to scale, owing to the space not being sufficient to show them 
 all clearly : the whole of them do not in reality extend much further down than 
 the end of No. 12. 
 
 S
 
 258 TRIAL OF LEOTADE. 
 
 that he fixed the 18th November as the date of sending the 
 compte de conscience, and that by means of a letter from 
 Jorson himself. 
 
 Briol and Lacour, both tailors in the Institute, deposed 
 to seeing Leotade in the work-room several times during the 
 morning of the 15th, Lacour between nine and eleven, Briol 
 " a tout moment" 
 
 Julieii Bessieres, in religion Frere Leopardin, cook at the 
 Pensionnat, deposed that he saw Leotade four times on the 
 morning of the 15th, the first time between six and seven, 
 the next between seven and eight at mass. Between nine and 
 a quarter past he saw him in the kitchen, when he asked 
 witness where the gardener was, and again at dinner. He 
 also said he saw him again between ten and eleven. The 
 President having pointed out to him that on the 23rd April 
 he could only remember seeing Leotade once between six 
 and seven in the morning, and though pressed by Leotade 
 then, he could not think of any other time that he saw him, 
 witness said he remembered these interviews afterwards, but 
 did not think it necessary to mention them. [At the first 
 trial this witness only spoke to four interviews ; he now spoke 
 to five, two of them, as to time, very important.] 
 
 Antoine Sabathier, the gardener, proved that he was in 
 the garden at nine on the morning of the loth, and went 
 into the stable between nine and ten to feed the horses and 
 remained there some time on account of the rain. [This was the 
 very time and place the prosecution fixed for the murder.] 
 Being pressed by the President as to how he remembered the 
 hour and the day, the witness said he heard the clock strike. 
 
 Jean Marie Cazenave, in religion Frere Illuminat, deposed 
 that he saw Leotade on the morning of the 15th at the 
 Infirmary at half-past four, afterwards at seven, and again 
 at ten feeding the birds. At eleven he came and lighted the 
 fire for the Count de Jarut Salvi, who was ill. Leotade 
 gave him on one occasion a clean shirt, which witness kept 
 for one of his patients. [Leotade, it will be remembered, 
 maintained he had not changed his shirt at the end of the 
 week, alleging the one offered was too small and irritated 
 a blister he had. It was therefore a very important point 
 to account for the clean shirt that was given him in due 
 course the Saturday after the murder.] The witness's
 
 TRIAL OF LEOTADE. 259 
 
 original deposition being put in, it appeared that when asked 
 if Leotade had on any occasion returned him a clean shirt, 
 the witness had said he had no recollection of it. 
 
 The President. The jury will appreciate the great im- 
 portance of this evidence. Leotade pretends he did not change 
 his shirt. On being asked what he did with the clean one 
 delivered on the Saturday, he replied, " I gave it to the infir- 
 mier" The latter, however, in the first instance denied it, but 
 when he learnt what Leotade had said, he mentioned it for 
 the first time. (To the witness.) " Is not this the proper 
 explanation of your testimony ?" 
 
 Witness, No. Leotade told me at the time the shirt was 
 too small for him. 
 
 M. GASC. The prisoner since his arrest has asked for 
 larger shirts. 
 
 The President. The ones he rejected were measured, and 
 one of them indeed was put on by M. Gaussail, who is much 
 stouter than Leotade, outside his clothes, and it was found 
 to be amply large enough. 
 
 Frere Liede deposed that he was ill in the Infirmary at the 
 time of the murder, and had occasion frequently to change 
 his linen in the course of that and the following week. [This 
 was to show that the clean shirt which was given to Leotade 
 on the Saturday, and which he did not use and returned to 
 the infirmier, was worn by this witness, and so far to corro- 
 borate Leotade' s statement.] 
 
 Henri Cousent and Felix de Savy, pupils, proved seeing 
 Leotade on the 15th, one from about half-past eight to a 
 quarter past nine, and the other in Leotade's own procure 
 about twenty minutes past nine. Another pupil also proved 
 seeing him at ten o'clock in his procure. Three other wit- 
 nesses, Frere Esdras, Frere Julien-Marie, and Frere Yves- 
 Marie, also proved seeing Leotade in the course of the morn- 
 ing of the loth, but the reports do not state the time when 
 they saw him. 
 
 Marie Duprat deposed that she had heard Cecile complain 
 of the overtures made to her by Conte. 
 
 Messieurs Dulac and St. Hilaire, professors, of Montpellier, 
 deposed that it was impossible to distinguish the grains of 
 figs of the same quality. M. Noulet, who had stated it was 
 
 s 2
 
 260 TRIAL OF LEOTADE. 
 
 possible to do so, being called in, argued at some length, and 
 said that before the Academy of Sciences he would always 
 maintain that the grains on the shirt No. 562, and on the 
 dress of the deceased, came from the same fig, though he 
 added he had found different kinds of grains in one fig. 
 
 Several witnesses in succession were then called to prove 
 that the declaration of Vidal that he had seen the deceased 
 leave the vestibule whilst he and Rudel were there, was made 
 by him spontaneously on the 17th before he was confronted 
 with the freres at the Institute, and clearly showed that they 
 had taken no part in endeavouring to influence his testimony. 
 Hearing that Vidal had said to several persons that he had 
 himself seen the deceased leave, it was only natural that the 
 freres should inquire into the truth of the matter, which was 
 of considerable importance to them. 
 
 Etienne Gatimel, in religion Frere Stephanus, deposed 
 that on the 16th he went into the garden with a gendarme, 
 and heard Lorien tell the gendarme (Coumes) that he 
 (Lorien) had made the footmarks near the Orangerie, on this 
 point entirely contradicting Coumes. Pierre Cahuc, in reli- 
 gion Frere Isoldus, corroborated this witness's testimony. 
 
 Crouzat, a musician, gave some evidence to the effect that 
 he had seen Conte act roughly to the deceased, and had 
 heard him speak violently on several occasions against the 
 freres. On one occasion, three or four days before the 
 murder, he had seen him come out of the Institute red with 
 passion at something that had taken place. Pressed as to the 
 day when he saw the proceedings between Conte and Cecilc, 
 he fixed it for a day when he dined there, when the deceased 
 was present. Conte and his wife thereupon both said that 
 the deceased had never dined there. 
 
 Frere Irlide, recalled, proved that on the 15th after break- 
 fast the compte de conscience was made in the Pensionnat. 
 
 Gaja Guillaume, in religion Frere Luc, deposed that on 
 the morning of the 16th he heard of the discovery of the 
 body ; he felt afraid to sleep any longer in a room by himself 
 (he Avas sleeping then in a small closet or work-room called a 
 procure] , and asked the director for leave to change his room. 
 The director sent him to take the place of Leotade, and this 
 latter was removed to another dormitory in consequence of
 
 TRIAL OF LEOTADE. 261 
 
 the application of witness. The director, on the morning of 
 the 15th, ordered witness to collect from ihefreres the letters 
 containing the comptes de conscience. He did so, and they 
 were afterwards sent off to the Superior in Paris by diligence. 
 M. Gasc here read the deposition of Frere Phillipe, the Supe- 
 rior, on this point, to the effect that a packet containing these 
 comptes de conscience did arrive in Paris from Toulouse in 
 April, and that there was one among them from Leotade, 
 but whether it was dated on the 1 5th of April or not he could 
 not say. 
 
 With the evidence of this witness the case for the defence 
 closed, and the court adjourned until the next morning. 
 
 On the meeting of the court the next day M. Rumeau 
 commenced his address to the jury on behalf of the plaintiff 
 in the civil action represented by Bernard Combettes, the 
 father of the deceased. The action was brought to recover 
 damages for the murder ; and this form of procedure is 
 one of the peculiarities of French criminal law. The 
 defendants were not only Leotade himself, but also Frere 
 Irlide, director of the Pensionnat, and Frere Liefroy, director 
 of the Noviciat, as the heads of the community of which 
 Leotade was a member. 
 
 M. Rumeau, after alluding to the absence of M. Joly, who 
 in the interval between the two trials had been promoted to high 
 office in the government, proceeded, after the usual tumid 
 flourish which seems a characteristic of French oratory, as 
 follows, immaterial portions of his speech being omitted : 
 
 " The case set up on the part of the defence rests entirely 
 upon three hypotheses ; the first is that the position of the 
 body and the state of the clothes render it impossible that it 
 could have been thrown into the cemetery. None, however, 
 of the experiments that have been made relative to the posi- 
 tion of the body negative the possibility of this projection : 
 if the body were carried there, as the defence allege, how did 
 it get to the place in which it was found ? Not by the gate of 
 the cemetery, for that was locked by Leveque, the concie'rye ; 
 nor from the opposite side of the cemetery near the canal ; 
 nor by the gap in the wall near the Boulevard St. Aubin. 
 There is no trace of any ladder having been used, nor of the 
 footsteps of the murderer ; and the grass surrounding the
 
 TRIAL OF LEOTADE. 
 
 body is not even disturbed. Every tiling, on the contrary, 
 excludes tlie possibility of the body reaching the place where 
 it was discovered from any other direction than the garden of 
 the Institute. 
 
 " Consider well the proofs demonstrating that the body was 
 thrown over from the garden of the Institute the state of 
 the wall on the side of the cemetery; the summit; the 
 inside fronting the garden. The experts have described the 
 marks that existed on the portion of the wall facing the 
 l)ody, the plant of groundsel torn up, and hanging only by 
 one of its roots. How have these marks and this appearance 
 been produced ? By the pressure made from above on the 
 cypress boughs forming the crown of the wall in the Rue 
 Riquet. On the garden side of the wall of the Institute 
 other plants of groundsel were found disturbed and pressed 
 down, a proof that either a hand or the ladder tised by the mur- 
 derer had been placed there. What deduction, therefore, 
 can be drawn from all these proofs but that some heavy and 
 bulky body has passed over the top of this wall of the garden ? 
 What that body was there is no difficulty in proving; for in 
 the hair of the deceased was found a petal of geranium, and 
 a similar flower is only to be found on the top of the wall of 
 the garden of the Institute. 
 
 " I pass now to the second hypothesis, that of the possi- 
 bility of the projection of the body over the wall of the Rue 
 Riquet. But if the body was thrown from that direction, 
 what becomes of the arguments drawn by the defence from 
 the state of the clothes and position of the body, as nega- 
 tiving the possibility of any projection? Besides, witnesses of 
 intelligence and respectability have been heard, capable of 
 forming an opinion, and they all state that such an hypothesis 
 is untenable, and the projection of the body from the Rue 
 Riquet impossible. Independent, however, of the evidence 
 of these experts there are other facts which tend to the same 
 conclusion. The wall of the Rue Riquet is found to be 
 unmarked ; the plants growing on the crown of it intact ; the 
 stake placed on the top, near the angle formed by the meeting 
 of the two walls, unmoved. This latter obstacle alone renders 
 the projection from the Rue Riquet impracticable. 
 
 " Then again, is it to be supposed that the murderer would
 
 TRIAL OF LEOTADE. 263 
 
 have had the hardihood to throw the body from the Rue Biquet, 
 when at two paces from him there was a lamp burning, and 
 at a short distance a sentry on duty who would inevitably 
 have noticed the assassin ? 
 
 " The body, therefore, was thrown from the garden of the 
 Institute, and must have been thrown from that direction. 
 Particles of clover were found on the dress of the deceased, 
 and clover of the same description was found in the stables 
 of the Institute, and no clover similar in character has been 
 discovered elsewhere. To persons at all open to reason this 
 conclusion must be sufficient, even if not supported as it is 
 by two facts, which are rendered still more decisive by the 
 falsehoods and subterfuges of which they were the object 
 the marks of the ladder and the traces of the footsteps in the 
 garden of the Institute. 
 
 " The theory of the prosecution on this subject is neither 
 difficult of explanation nor improbable. These marks are the 
 marks made by the murderer when seeking for the spot most 
 suitable for the projection of the body. On consideration he 
 discovered a place more convenient than that which he selected 
 in the first instance ; therefore the marks discovered on the 
 flower beds were feeble, as the murderer did not at that spot 
 mount on the ladder with his victim. It has been sought to 
 dispute the nature of these marks, and to show that they are 
 unimportant, that they were only two or three in number, 
 and were not measured : but what does that matter, when 
 the material point remains that they are in fact the marks 
 made by a ladder ? Who made them ? that is the question. 
 We say the prisoner Leotade made them : the defence says, 
 Frere Irlide says, they were made whilst pruning the trees 
 in the garden ; but it has never been proved that there are 
 any trees in that direction that require or in fact were 
 pruned : besides, on the day after the murder it was set up 
 by the directors of the Institute that the marks of the ladder 
 were upright, and that no one could have mounted on it in 
 that position. 
 
 " As to the footmarks, it may probably be objected that they 
 were very indistinct, and that Frere Lorien made them ; but 
 that objection is not difficult to be met. Lorien, who says 
 he made them, has been arrested, and is now in custody
 
 264 TRIAL OF LEOTADE. 
 
 for perjury, and the footmarks were indistinct owing 
 to the necessity the murderer was under of effacing 
 them. 
 
 " Then again, in the Pensionnat six shirts were seized, 
 but on one only, the shirt No. 562, were those terrible and 
 overwhelming proofs the grains of fig discovered. You 
 will not seek to draw any argument from the counter-propo- 
 sitions of the witnesses for the defence, which ended in 
 nothing, and in no way upset the evidence of the experts 
 called on behalf of the prosecution. The identity of the grains 
 must strike you at once as convincing, and on no other shirt 
 but the one numbered 562 were there found any grains of fig 
 at all. Neither can you seek to attach any importance to 
 the depositions of ihefreres who have been examined before 
 you : none of them can have any weight. In each the same 
 baleful influences which suggested them, in each the same 
 sentiment, in each the same form of language are to be 
 noted. It is not necessary even to discuss them. 
 
 "But in order the better to appreciate the arguments 
 which I have yet to address to you, let me say a few words 
 on the subject of this Institute, on its origin, on its purpose, 
 on its doctrines, and on its management." 
 
 M. Rumeau here entered upon a long history of the Insti- 
 tute of the Christian Brethren from its foundation in the 
 year 1651, tracing it through all its vicissitudes down to 
 modern days. " It was indeed a magnificent idea, that of 
 the Founder of this Establishment, to give to the children of 
 poor persons a gratuitous Christian education, and to call to 
 the work of aiding in the realization of that idea men strong 
 in faith, constant in charity, firm in self-denial and brotherly 
 love. But unfortunately, as with men so with institutions : 
 they have but a short career here upon earth : they become 
 feeble, degenerate, and grow old. What therefore was fitting 
 and useful once, at a time when the Catholic religion was the 
 exclusive or even the dominant religion in France, becomes 
 a mere anachronism under the reign of liberty of conscience, 
 and in the absence of a recognized State religion. "What was 
 a benefit at a time when a people possessing nothing but 
 burdens had no rights, becomes a mere usurpation of the 
 duties of the State under a government which ranks amongst
 
 TRIAL OF LEOTADE. 2(55 
 
 its first obligations that of giving to all its children the benefits 
 of gratuitous instruction. 
 
 " If you were to ask me what is my opinion of the principle 
 of this Institute of the Christian Brethren, I should tell you 
 that it is an admirable Institution, for it holds everything 
 subservient to the interest of God. Why then has fanaticism 
 so impaired its original purity? Why is it that the suc- 
 cessors of the Abbe de Lassalle have placed it under the 
 dominion of retrograde ideas and evil passions ! 
 
 " The organization and inner discipline of the Institute 
 seem copied from those of that famous Order [the Society of 
 Jesus] whose yoke it has since voluntarily accepted. At 
 the head a perpetual Superior General, nominated by a chapter 
 composed of thirty of the oldest members : then follow 
 directors for each of the establishments spread over the 
 country and abroad ; then visitors charged with the inspec- 
 tion of those establishments, each, like the directors, elected 
 for three years; then the professed brethren who form, 
 properly speaking, the body of the Institute, and then 
 novices only admitted after certain proofs and for a certain 
 fixed definite period. 
 
 " Amongst the most important of the vows taken by the 
 members of the Institute are the vows of poverty, chastity, 
 and obedience. These vows, it is true, are taken only for 
 three years, but they are renewed at the end of each period 
 of three years : during that time the member who has pro- 
 nounced them cannot by the terms of their statutes be 
 relieved except only by the authority and on the interference 
 of the Pope. 
 
 ' ' I own I must admit that for Congregations in general, and 
 particularly for Congregations exacting such vows as these, I 
 have but a very moderate sympathy. The vow of poverty is 
 easily forgotten : of the two other vows, chastity and obe- 
 dience, one is surrounded by such dangers, the other has 
 facilities for abuses so grave, that we are often inclined to 
 ask and in the present day more than ever to ask if the 
 existence of these vows is compatible with a morally or- 
 ganized and properly regulated social existence." 
 
 M. Rumeau then proceeded to descant with much force on 
 the vow of obedience exacted of the members of the Estab-
 
 266 TRIAL OF LEOTADfc, 
 
 lishment, quoting largely from the writings of several of 
 the most distinguished members of the Society of Jesus, whose 
 rules were binding on the Institute. It must be borne in 
 mind that M. Rumeau was pleading for the plaintiff in the 
 civil action, who sought to recover damages from the heads 
 of the Establishment of which Leotade was a member, and 
 that the question of passive obedience to their Superiors, 
 which all the freres were bound to recognize, had an im- 
 portant bearing on the credibility of the witnesses called on 
 behalf of the Institute. He sought therefore to show that 
 this vow of obedience was with them far different from what 
 it is with us in the ordinary affairs of life : in civil life 
 obedience does not prevent the exercise of either reflection or 
 reason, but in religious life, he argued, the vow of obedience, 
 fully and faithfully observed, excludes morality, religion, 
 truth, duty, everything except the one point of passive 
 obedience to the wishes and orders of a Superior. As such 
 it becomes a fearful and powerful weapon in the hands of a 
 stern, unflinching, and uncompromising man. The member 
 of a Congregation who has taken this vow remains, M. Rumeau 
 submitted, no longer a man : he becomes a dead body. It 
 was this moral deadness to everything except the orders of a 
 Superior, this loss of life as a separate and independent 
 being (perinde ac cadaver), that M. Rumeau sought to 
 demonstrate from the authors whose writings he then pro- 
 ceeded to quote : 
 
 " I know," he said, " no Jesuit who, after Escobar, has so 
 clearly expressed his views on this question as Eudaemon 
 Joannes. In his Apology for Henry Garnet he says : ' I can- 
 not understand all these outcries against equivocation; it must 
 be because it is regarded either as a lie, or if not a lie, as 
 none the less deceiving him against or towards whom it is 
 used : or because in the daily commerce of men and in the 
 ordinary affairs of life it banishes all good faith. But none 
 of these reasons have any weight. Equivocation is not a lie, 
 because to lie is to speak contrary to one's thought, and he 
 who uses equivocation gives to the words which he uses the 
 meanings of the words that are present to his mind. As to 
 the point that it deceives him towards or against whom it is 
 used, I cannot perceive what advantage my adversaries can
 
 TRIAL OF LEOTADE. 267 
 
 draw from it, because the use of it is not permitted ou 
 all occasions without choice. If the interest of Society 
 require the observance of good faith in all conversations, 
 if it be true that the destruction of good faith would ne- 
 cessarily destroy or put an end to Society also, Society 
 would be equally destroyed if the right every one now 
 possesses over his own thoughts to conceal or disclose them 
 to others as he thinks fit were taken away' (a). 
 
 " Suarez does not explain himself less clearly: ' Equivoca- 
 tion in conversation is not always a lie, and the reason is 
 that a lie is a thing said contrary to the thought of him who 
 says it, because it is the duty of the person who speaks to 
 make his words conform to his own thoughts, and not to the 
 thoughts or understanding of the person addressed; from 
 which I conclude it is not perjury to state upon oath what is 
 said in this manner, for by the oath God is not called upon 
 to witness a lie, since there is no lie.' 
 
 " Such is the doctrine published and taught in Lyons in 
 1714 by the Jesuits of that town, with the permission of the 
 Provincial and the approbation of the General A qua viva and 
 of a great number of the doctors of the Society. Let us 
 see now what application is made of these principles, drawn 
 from the most celebrated and learned casuists : 
 
 " A man plunges his dagger into the breast of another named 
 Lecoq : you are called as a witness : you have some motives 
 for not giving evidence in the matter: how reconcile the 
 obligation you have to speak the truth with the reasons and 
 motives you possess ? A Jesuit Father teaches you at once 
 what to do : You may swear in safety and in good conscience 
 that you did not see the prisoner stab Lecoq, but by reser- 
 vation you say to yourself ' le cog de la basse cour' for it is 
 certain that that cock at least has not yet been put to death. 
 
 "Another case. You are in Hungary, where Latin is spoken. 
 You are asked to give evidence respecting a murder. It is 
 well known that gallus signifies equally a Frenchman and a 
 cock. You have, as in the previous case, reasons for not giving 
 
 (a) The adversaries alluded to above were the adversaries with whom 
 Eudeemon Joannes was arguing on the disputed point whether Garnet 
 was or was not implicated in the Gunpowder Plot.
 
 268 TRIAL OF LEOTADE. 
 
 evidence ; you therefore say you know nothing of the affair, 
 meaning, by reservation, " the affair of the cock." 
 
 " Again. You arrive in a country governed by an atheistic 
 prince. You are required to take the oath of allegiance. 
 You, who are an excellent Catholic, are not willing to swear 
 fealty to a person excommunicated. How do you propose to 
 get over the difficulty. A Jesuit Father will again show you : 
 You say aloud, ' I swear' and to yourself quite low, ' that 
 I will be faithful to my own king/ ''' 
 
 M. Rumeau then proceeded to give further examples of the 
 danger arising from the vow of passive obedience and the 
 doctrines of the Jesuit Fathers on the subject of equivoca- 
 tion. Amongst others he mentioned the proposition made by 
 Stroz, a German Jesuit, in a book published with the autho- 
 rity of the Superior General, to make a dictionary for one's self 
 to call a " man" a " horse,'' a " horse/' a " man," to under- 
 stand by the word ' ( pound" a " shilling," and by the word 
 " cow" a " cat," and vice versa ; and then to quote an extract 
 from a work by Barnard, the History of the Progress of the 
 Society of Jesus, on the subject of passive obedience: "Let 
 every one understand that those who live in obedience ought 
 to allow themselves to be led by the orders of their Superiors 
 as if they were a dead body, which lets itself be carried in all 
 directions, and in such manner as may be required, or like 
 the walking-stick of an old man (sicut baculus senis) , which 
 is in the hand of him who holds it to be used in all places 
 and for every occasion as he may desire." 
 
 " Again, in a catechism for the use of schools, Noviciats, and 
 Congregations, written by one of their own body, is this doc- 
 trine, in which, in answer to a question as to the duties imposed 
 by the Second Commandment, and whether the rigorous 
 observance of those duties could not be evaded, the reply of 
 the pupil is, ' Yes, they can be evaded by the judicious 
 employment of mental reservations, such as to swear aloud 
 that you will keep the conditions of such and such a treaty, 
 and to say to yourself at the same time by mental reserva- 
 tion, that is, if I do not change my intention.' And in answer 
 to a further question whether this doctrine is approved of 
 by other learned men, the pupil is taught to say, 'It is 
 approved by all the theologians of the Society of Jesus, who
 
 TRIAL OF LEOTADE. 2G9 
 
 unanimously teach that 011 all occasions where there is any 
 necessity to conceal the truth an oath may always be taken 
 with a double meaning' " (a) . 
 
 M. Rumeau then, after citing other works and documents 
 more or less bearing on the same question of passive obe- 
 dience, proceeded: 
 
 " You" (the Institute) "may say you are not entirely Jesuits. 
 That may be : but you have with them many things in com- 
 mon; and what is worse you have accepted their dominion. 
 Your tendencies in temporal matters are the same ; your 
 principles on the subjectof obedience identical. If the tricolour 
 floats proudly on the roof of your buildings, the oriflamme of 
 the Congregation of the Society of Jesus glitters on your altars 
 within. And can there be any more striking proof of the 
 influence of that Society than the very fact of this trial, and 
 the opposition of which it has been the object ? 
 
 " Nevertheless, my reproaches do not attach to the virtuous 
 Founder of the Society, nor to his immediate successors. His 
 idea, as I have already stated, has been corrupted and niis- 
 
 (a) Thoroughly to appreciate the bearing of these extracts and quota- 
 tions on the question at issue, it is necessary to bear in mind the circum- 
 stances under which the trial took place. It originally commenced on 
 the eve of the outbreak of the Revolution of 1848, and was adjourned 
 in consequence of that event for a period of about three weeks. In the 
 interval between the first and second trial a fierce and excited crowd, 
 such as can be met with only in France in times of great political 
 disturbance, besieged and eventually broke into the Institute, devas- 
 tated the gardens, plundered the buildings, desecrated the chapels, and 
 pulled down the crucifixes from the altar. The director was afterwards 
 ordered by the authorities to send all the pupils back to their own 
 homes, and a body of seventy-eight soldiers was quartered in the Estab- 
 lishment, and occupied the buildings at the time of the second trial. 
 
 In the Revolution of '89 religious institutions of this, and indeed ot 
 every description, had all been swept away, and at the Revolution of '48 
 there was a strong hope in the minds of the great bulk of the populace, 
 that they would be swept away again. The observations and address of 
 M. Rumeau were therefore directed, not only to show that Leotade must 
 be guilty of the crime, but that the Institute also were guilty, and that 
 their tenets and rules were incompatible with an advanced state of 
 enlightenment and civilization. Hence these quotations on the subject 
 of passive obedience, which though in undoubted bad taste, yet would 
 have a considerable effect upon the minds of a jury drawn from amongst 
 that excitable class of politicians and free-thinkers which forms so large 
 an element in revolutions in France. That in the midst of such reli- 
 gious and political excitement Leotade could have a fair trial is of course 
 out of the question.
 
 270 TRIAL OF LEOTADE. 
 
 understood. But the germ of that corruption is to be found 
 in the rules themselves, and also in those solemn words 
 which the Founder pronounced on two memorable occasions 
 during his long life, ' I exhort you to observe a perfect union 
 and a perfect obedience ;' and again, on his death-bed, ' I 
 exhort you to be submissive to the Church, to exercise a par- 
 ticular devotion to the Virgin Mary, and to St. Joseph, the 
 Patron of the Society, to have an intimate union and fellow- 
 ship one with another, and a blind obedience to your Superiors.' 
 This principle of blind obedience, fertilized by Jesuitical 
 influence and contact, has become what you have now seen 
 it to be in this present trial. 
 
 " Suppose a religious corporation with these principles and 
 these alliances in the presence of or arraigned by the civil 
 authority ; suppose a social interest, the repression or punish- 
 ment of crime for example, at war with the private interest, 
 or what is supposed to be the private interest, of this Society ; 
 is it necessary for me to state that the one will stifle the 
 other, and that if the Society persist and resist, the truth 
 can only by the most gigantic efforts be discovered ? 
 
 " That which I am now putting as a hypothesis merely is 
 a deplorable reality in this trial. It is not the first time 
 that Justice has required an account from an Institute of 
 freres of crimes committed within the bosom of the Institute. 
 The case of the frere of the Institute at Metz, guilty of a 
 crime similar to this, and never discovered, is one example. 
 Another less known but not less authentic case took place 
 lately in Paris. An assault was made by a frere on a child, 
 who was afterwards murdered, as in this instance. The parents 
 denounced the crime to the Minister : the Minister demanded 
 inquiries should be made by the Superior General. Do you 
 know what was the reply made to the Minister ? that the 
 accusation was true ; that the frere had been punished in the 
 interior of the Institute, and sent into the Sardinian 
 States ! 
 
 " It would perhaps have been dangerous to have acted in 
 this manner with respect to the crime of the 15th April : 
 Justice indeed did not allow sufficient time. But if the 
 Institute could not dispose of, they at least could endeavour 
 to conceal the culprit. It is then that was organized that
 
 TRIAL OF LEOTADE. ^71 
 
 system of opposition which we have seen, and which, com- 
 mencing at the rehearsal, developed itself by calumny, subor- 
 nation, and falsehoods, and culminated in perjury ! 
 
 " Now let us examine the question of the culpability of the 
 accused ; and it is under the influence of the ideas which I 
 have just been uttering that this question ought to be 
 examined. In the first place it is necessary to put on one 
 side the suspicions and accusations which have been thrown 
 upon Conte. Not that I purpose to constitute myself the 
 champion of that witness, but I wish to expose and destroy 
 that system whose aim is only to silence the voice of 
 Truth. 
 
 " The accusation against Conte can be made in a double 
 form. He can be accused as the accomplice of the authors 
 of the crime, or as having sold Ce"cile. To say he is the 
 actual murderer is to assert what is simply absurd. My 
 argument will not be long, but it will be conclusive. Conte 
 accounts for the whole of his time from the moment when 
 Ce'cile entered the vestibule to his departure for Auch, and 
 was not at Toulouse when the body was thrown into the 
 cemetery. 
 
 11 Was Conte simply an accomplice of the crime ? I admit 
 that for some time I shared in an error pretty generally 
 accepted by the public ; but the more I have studied the 
 case the more convinced I am that that accusation is inad- 
 missible. 
 
 " So, therefore, there is nothing possible, nothing reasonable 
 in these accusations. The defence then seek to throw suspicion 
 on the evidence of Conte, and to rake up his antecedents. 
 Conte has to reproach himself undoubtedly with a grave crime 
 perpetrated more than seven years ago, a crime since expiated 
 by conduct free from all reproach. Conte even received for- 
 giveness for the crime within the walls of the Institute itself. 
 As to the witnesses Marie Duprat and Crouzat, who seek to 
 make you believe that Conte has been guilty of certain pro- 
 posals towards Cecil e proposals which, if true, she must 
 have tolerated, as she made no complaint of them these 
 witnesses are simply a libel on the character of a young girl 
 whose virtue, contested by no one, is spoken to by the whole 
 town.
 
 TRIAL OF LEOTADE. 
 
 " There are, besides, reasons, and decisive reasons, for 
 believing Conte's testimony. He had no interest in saying 
 what he does. On the contrary, he had every reason to 
 shield the freres. Remember, too, what he said to Madame 
 Baylac, that she should not throw suspicion on the 
 Institute. 
 
 " Let us now examine the question of the culpability of 
 Leotade. Who is it that must necessarily be suspected? 
 Naturally those who were present in the vestibule when all 
 trace of Cecile was lost. Now who was there in the vestibule 
 at the time? On this point we must avail ourselves of the 
 evidence of Conte. 
 
 " Conte states that he saw in the vestibule Leotade and 
 Jubrien. He has described to you their position and their 
 dress. If he is speaking the truth, then those freres are 
 either guilty or know the secret of the crime. On all 
 points the assertions of Conte are positive ; his statements 
 the statements of a man uncontaminated by the stain of 
 Jesuitism. 
 
 " Is this evidence of Conte unsupported isolated ? No. It 
 is supported indirectly by the evidence of Marion. A deposi- 
 tion thus supported is true, and cannot be disproved but by 
 other evidence, and I find no other evidence. Could Conte 
 prepare his plan, could he foresee the questions that would be 
 addressed to him ? No. He is arrested on descending from 
 the diligence from Auch, and he declares he saw Jubrien and 
 Leotade in the vestibule, and he never varies. No tergiver- 
 sation is to be noticed in his deposition. His evidence con- 
 tinues always the same. Marion is on the whole affirmative. 
 Lactenus denies nothing ; he has no memory, he says, and 
 the most simple facts escape his notice. The evidence of 
 Conte therefore remains intact. 
 
 " Then as to the denial of Leotade that he was present in 
 the vestibule on the morning of the loth, I will not trouble 
 you much about that : it is the province of the prisoner 
 always to have to deny that which is brought against him. 
 As to the denial of Jubrien, that is different. That denial, if 
 true, would naturally have on your minds a certain influence, 
 but it is suspicious for several reasons. If Jubrien is not
 
 TRIAL OF LEOTADE. 273 
 
 under suspicion to-day, he has been under suspicion; his 
 denial and the denial of Leotade are therefore the result of 
 an understanding. 
 
 "The agreement between Jubrien and Leotade to deny 
 their presence in the vestibule is the more possible, because 
 arrested only on the 26th of April, the proceedings on the 
 part of the prosecution were not in the first instance abso- 
 lutely secret to them. They have been enabled therefore to 
 agree upon what they should each say. They had each the same 
 interest to defend. Take their depositions from the time of 
 the second interrogatory until now, and you will find them 
 of one accord on all points. You will find in them both the 
 same energetic denial ; but the pure simple real truth you 
 will not find at all. If they are thus tenacious and per- 
 sistent in their denials, it is because they have the same 
 interest at heart, not the interest merely that an accused 
 person naturally has, but the interest of the Institute, the 
 esprit de corps. 
 
 " As to the alibi, if it is true, its effect is immense ; but is 
 it true ? 
 
 " It is necessary to notice relative to this alibi that there 
 are two distinct periods in which it originates, and each 
 period has a different version ; the first, prior to Jubrien's 
 discharge from custody, the second afterwards. The first 
 version was this : Jubrien did not fix the exact time ; he 
 was uncertain : some time between eight o'clock and ten 
 o'clock, or half-past ten, he could not say positively. But 
 during that period of time he pretended that he went to the 
 bakehouse at a quarter past eight ; that he remained there 
 with Iboncien half an hour, that he then went to his 
 procure (a), where he remained about as long, and then he 
 went out into the town. Such was Jubrien's version when in 
 custody, and if I had no other version to contend with than 
 this, it would not be difficult to refute it. 
 
 (a) The word procure means a sort of study or office, a small room set 
 apart in Institutes of this description for the use of the director, pour- 
 voyeurs, and one or two of the other chief officials, each of whom generally 
 has one to himself. The Procure des Lims lias in all cases been translated 
 library, the nearest English word attainable to distinguish it from, the 
 other procures alluded to in the course of the trial. 
 
 T
 
 274 TRIAL OF LEOTADE. 
 
 " But Jubrien, released from prison, gives an entirely diffe- 
 rent version : he was with Bounhour and Salinier in the stable, 
 and in their company from ten minutes past eight to a 
 quarter past nine. Compare the two statements. You find 
 Jubrien in two places, the stable and the bakehouse, at the 
 same time ! You cannot say this time at least [turning to 
 some of the directors who were present] that no falsehoods 
 have been uttered. This is Jubrien' s statement : one of the 
 members of your body : the Frere Procureur : one of the 
 heads of the Institute ! 
 
 " Of the two versions Jubrien naturally will sacrifice the 
 one in which Iboncien appears, and wnll excuse it on the 
 ground of the error into which Iboncien has fallen. But 
 how is it that the fact so useful to the defence was not dis- 
 covered until four months after. Is not the discovery of 
 this important fact so late in itself suspicious ? 
 
 " But Salinier and Bounhour are not themselves agreed. 
 One of them saw twofreres, the other only one. Neither of 
 them agree as to time, nor the duration of the interview, nor 
 the length of time they remained in the Institute. Vidal 
 and Rudel completely contradict them. Abandon Yidal if 
 you like. As the learned President has observed, he may still 
 be living in the dominion of illusions, but Rudel has never 
 said anything that was false, and Rudel states that he never 
 saw either Salinier or Bounhour. 
 
 ' ' I do not believe that Jubrien is guilty, and I gather the 
 proof of his innocence from the proceedings themselves. 
 Jubrien, at a few minutes past nine, was in the procure 
 with Frere Liefroy conclusive evidence that he could not 
 have committed the murder. 
 
 " Is it necessary for me to state the hour of the deceased's 
 death, the place? The hour is ten o'clock, the place the 
 stable. Is it to be said that it is impossible for the crime to 
 have been committed without the person committing it being 
 seen ? I answer, No. At that time the ordinary occupations 
 of the freres, of the servants, would leave Leotade free, and 
 because it is said no one saw the crime committed, is that a 
 reason it was not committed? It is said the crime could 
 not be committed without the cries of the deceased being
 
 TRIAL OP LEOTADE. 275 
 
 heard, but Cecile was not able to cry, terror had paralyzed 
 her senses, and besides if she had cried, was there any one 
 there to hear ? 
 
 " Then as to the alibis. Leotade was in the kitchen, in the 
 work-room, in the cellar, fetching wood, in the Infirmary 
 amusing one of the invalid pupils with a serinette. How is 
 it, however, that in the Institute this alibi was not mentioned 
 in the first instance, whilst Leotade was au secret, when with 
 one word they could have saved, not only Le*otade, but the 
 Institute as well ? Why are they silent for ten months, and 
 then, after the lapse of that long interval, bring forward the 
 evidence offreres, of servants, of children, and of scholars ? 
 
 11 Examine well the alibi which Leotade sets up. After the 
 crime, at the time when everything was fresh in the memories 
 of the witnesses, no one came forward to speak to or to con- 
 firm this alibi. But to-day the witnesses to it are legion; 
 they are brought forward in profusion : the Institute seems 
 to have a whole army in reserve, and if any doubt should 
 fall on the matter, to be able to produce others as well ! 
 Leotade states that on the 15th he wrote the letter con- 
 taining the compte de conscience, but that assertion comes for- 
 ward very late, and yet it was much more important than that 
 which he gave in the first instance, that he fed the birds. 
 
 " Gentlemen, do not let it for a moment be said that the 
 commission of the crime was unknown in the Institute ! It 
 could not be unknown ! If it were unknown by the freres 
 generally, Frere Irlide knew it ! (Great sensation.) The 
 director is necessarily the confidant of everything which 
 takes place in the Institute. Did not the director receive all 
 the comptes de conscience? Did not the director have his 
 doubts aroused by the extraordinary event which had taken 
 place ? A crime had been committed. There was necessarily 
 a criminal : that criminal was not far off : the director 
 knew everything ! 
 
 " And then consider the subject of the shirt discovered in 
 the Noviciat, which every one disowns, because, like the tunic 
 of Deianira, it consumes the person who wore it. Is not 
 that shirt the shirt of Leotade? Again, do not all the 
 visits made by Ldotade in the town to the tradesmen of the
 
 276 TRIAL OF LEOTADE. 
 
 Institute, his idle and imprudent remarks, do not they all 
 come forward in support of the prosecution now ? 
 
 "You denied (turning to Leotade), you denied the con- 
 versation held with Lajus those words which in" the day 
 of your trouble you so unwittingly let escape you, and which 
 to-day doubtless you so bitterly repent having used. Com- 
 pelled to admit a certain portion of that conversation, you 
 try to fix it as taking place on the 19th instead of the 16th. 
 Before the juge d' instruction, overwhelmed with remorse, you 
 were on the very point of making a confession of your guilt. 
 Well ! that confession I demand of you to-day ! In the 
 name of everything which you hold sacred : in the name of 
 that unhappy family plunged in grief for whom I am to-day 
 lifting up my voice : in the name of that unfortunate child 
 over whose body the grave has so recently closed : in the 
 name of that religion of which you yourself are one of the 
 representatives, I demand of you speak ! confess ! (After 
 some moments of intense silence, during which the eyes of 
 the whole of the audience were directed towards Leotade, 
 who bore the ordeal with considerable firmness and self- 
 possession :) Ah ! (turning from Leotade to the jury) he 
 is silent ! He is the guilty man ! Human justice will now 
 pronounce his doom, waiting for the judgment of God I" 
 
 On the conclusion of M. Rumeau's speech, the procureur 
 general, M. D'Oms, commenced his address to the jury oji 
 the part of the prosecution. His speech, which is very long, 
 may be divided into two portions, one in which he 
 endeavoured to localize the crime within the walls of the 
 Institute ; the other, in which he analyzed and discussed in a 
 very able manner the evidence as it affected Leotade. In 
 the following summary everything that is immaterial to the 
 real point at issue has been omitted, as also those points 
 which have been already dilated upon by M. Rumeau. 
 
 After alluding to some of the evidence given at the trial 
 by the witnesses put forward on behalf of the freres, to the 
 marks of the ladder, and the traces of footmarks in the 
 garden, and after describing and pointing out to the jury, on
 
 TRIAL OF LEOTADE. 277 
 
 the model of the two walls, the position of the flowers which 
 had been rooted up, M. D'Oms proceeded : 
 
 " You have already considered, from the arguments that 
 have been adduced, the difficulties that present themselves to 
 the body being carried from any place exterior to the Insti- 
 tute and placed in the position in which it was found. But 
 if in imagination you put yourselves in the garden of the 
 Institute, you will be struck with the facilities which that 
 position affords for the disposal of it. No indiscreet, obtru- 
 sive, curious eye can overlook the premises. On the right is 
 the desolate Cemetery St. Aubin ; behind, the vast deserted 
 garden of the Institute; on the left the high wall of the Oran- 
 gerie. Thejuge d'instruction caused experiments to be made 
 in order to ascertain if from any of the houses adjoining the 
 cemetery it were possible to see the assassin when in the act 
 of disposing of the body. The result was entirely negative. 
 Even if the night of the 15th April had been a beautiful 
 clear moonlight night (which it was not), and if all the 
 neighbours had been looking from their windows, no one 
 could have seen the murderer." 
 
 After referring to, and discussing at some length, the state 
 in which the dress of the deceased was found, the particles 
 of clover discovered adhering to the body, and the evidence 
 of the experts, MM. Filhol and Noulet, as to the identity 
 of those particles with the clover found in the stable in the 
 Institute, and the " perfect identity " proved to exist between 
 the grains of fig on the shirt No. 562 and the grains found o 
 the clothes of the deceased, the procureur general nexl 
 proceeded to lay before the jury the arguments from which 
 he sought to fix the hour of the deceased's death : 
 
 " The grandmother of the deceased saw her eating some 
 bread at seven o'clock in the morning, and her young 
 companion (Gestas) some bread and peas at eight. The 
 experts prove that the bread eaten at those two meals, though 
 taken at two different times, was found assimilated together 
 in the duodenum, whilst the peas eaten at eight were in 
 the stomach. The digestive tables compiled by Beaumont 
 prove that bread never remains in the stomach more than 
 three hours. As, therefore, some portion of the bread was 
 taken at seven, the death of the deceased must have
 
 278 TRIAL OF LEOTADE. 
 
 occurred at or a little after ten. Where then can 
 you fix elsewhere than in the Institute the place of the 
 murder ? What time would Cecile have had to leave the 
 Institute if you endeavour to show that the murder was 
 committed outside? At a quarter past nine Cecile was 
 alive and well in the vestibule of the Noviciat. She must 
 therefore have met with her death at an hour not far distant 
 from the time when she entered the Institute. There is 
 also another remarkable fact : in the deceased's shoes was 
 discovered, adhering to the mud, a particle of hay. Now 
 that implies that when Cecile entered the hay-loft (for it is 
 there that the crime must have been committed) the mud on 
 her shoes was still wet, consequently that she had only 
 recently left the soil from which that mud had been pro- 
 duced. 
 
 " You will gather from the evidence that has been given 
 in the course of the trial that on Thursday, the 15th, from 
 eight to eleven, the freres would, in the ordinary course of their 
 duties, be assembled together in the salle des exercises ; that 
 the approaches leading from the vestibule to the garden and 
 stable, as well as those places themselves, would necessarily 
 be deserted. Even if Cecile had been seen, the prosecution 
 are quite justified in asserting that no one would have given 
 evidence of the fact. It would have been still easier for the 
 defence to have obtained the silence of any of the freres 
 who might have seen Cecile than it was for them to procure 
 the perjured testimony of Frere Lorien. Cecile, who out- 
 side the Institute would have hesitated in accompanying a 
 stranger on any pretext, would have had no suspicion or 
 hesitation with reference to the freres. Remember the evi- 
 dence that has been given as to the terms of familiarity and 
 daily intercourse that existed between the freres of the 
 Institute and Conte's house. Nearly every day apprentices 
 of Conte were in the habit of going either to the Noviciat 
 or to the Pensionnat. Cecile herself had been there in the 
 very week in which the murder was committed. Any one of 
 the brethren, therefore, meeting Cecile in the Institute would 
 have had no difficulty in inducing her to follow him. Once 
 at the door of the stable, the mention only of rabbits, of 
 pigeons, which the murderer would promise to show her,
 
 TRIAL OF LEOTADE. 279 
 
 would have induced her to enter. From the loft where the 
 pigeons are kept to the loft where the hay is stored, and 
 which the prosecution assert is the place of the murder, is 
 but one step. 
 
 " How, it will be said, is it possible to suppose the 
 assassin capable of such audacity? All along the route 
 indicated he must have encountered the gaze of several 
 curious scrutinizing eyes, and in the garden, labourers ; Frere 
 Lorien, the gardener, too, amongst others, must have been 
 at work. None of these objections raise in my mind the 
 least hesitation or difficulty : none of them, plausible as 
 they may be, can get rid of this fact, that Cecils was seen to 
 enter the vestibule alive, and was never afterwards seen to leave. 
 
 11 It will be said that in order to pass from the Noviciat to 
 the Pensionnat it is necessary to traverse a court commanded 
 by several windows. But nothing proves that there were 
 any freres stationed at the windows at the time when 
 the deceased must have passed; besides, if they were, 
 every one would have denied having seen her. The pro- 
 hibition against females passing from the Noviciat to the 
 Pensionnat, attempted to be set up, is not proved. The 
 porter himself said to Conte that it was possible the deceased 
 had gone to the Pensionnat, though he afterwards modified 
 it by saying that he thought Conte might have taken her. 
 Two points therefore are proved from these facts, one is that 
 Cecile if accosted by afrere would have had no hesitation in 
 accompanying him, the other, that means of communication 
 between the two establishments were accessible and easy. 
 By them, we bring her to the door of the stable, the key of 
 which is often in the lock, and when not in the lock, under- 
 neath the door. Remember that in this stable the rabbits 
 were kept. Cecile would have learnt at Conte's that Conte 
 had been promised a rabbit by Leotade. She would have 
 followed him therefore without suspicion. The possibility 
 of her arrival at the stable is thus indisputably shown. 
 
 " It will be said that Cecile must have cried out, and that 
 no one has heard any cries, and this argument is put forward 
 as an important, indisputable fact ! Nothing is easier than to 
 refute it. If Cecile did in fact cry out, she must have been 
 heard by some one. But that some one would be the Frere
 
 280 TRIAL OK LEOTADE. 
 
 Superior. Frere Irlicle does not come forward to state he 
 heard these cries. Therefore she did not cry out, or if she did 
 no one has heard her, in which case the objection falls to the 
 ground. If the crime had been committed elsewhere 
 would she not also have cried out ? There would have been 
 a score of witnesses to prove these cries. The houses adjoin- 
 ing the Institute are much frequented, and it would have 
 been impossible for the deceased to have cried out without 
 being heard ! It is therefore within the walls of the Institute, 
 in the midst of the body offieres who inhabit it, that we have 
 to seek for and seize the murderer. The crime being thus 
 localized, the prosecution demands, why therefore these 
 struggles against evidence ? why this endeavour to show, in 
 the interests of the Society, that it is not within these walls that 
 the murderer is to be discovered ? Is it because if the mu rderer 
 be discovered amongst ihef/'eres, the respect for the Body will 
 be lessened ? Far from it ! The respect for the Institute would 
 increase by reason of the efforts made to discover the criminal ! 
 The disgrace of one member does not re-act on the whole Body, 
 except in so far as the whole Body may cover with their 
 protection the member who has dishonoured them. 
 
 " What then has been the attitude adopted by the Institute 
 as a Body with reference to this inquiry ? The consideration 
 of this point is indispensable in order to arrive at a satisfactory 
 estimate of the value of the evidence adduced by the prosecution 
 against Leotade ; for according as you may feel convinced in 
 your own minds either that the Superiors have given their 
 assistance to justice, or have by underhand means caused any 
 proofs to disappear, so will you appreciate differently the 
 evidence that has been laid before you and the evidence 
 that may be wanting. If you are convinced that the Supe- 
 riors have always been actuated by a desire of delivering a 
 criminal to justice, you will be surprised that there cannot 
 be found in the whole Institute a single witness who can 
 come forward and give evidence of a crime committed in 
 open day. But if, on the other hand, you think the apparent 
 support and assistance offered by the Institute were merely a 
 stratagem to enable them the better to undermine the prose- 
 cution, then you will not be surprised if the proofs are found 
 in some particulars to be defective !
 
 TRIAL OF LEOTADE. 281 
 
 <c I do not assume to assert for a moment that members of 
 a religious community could accept gladly a partnership with 
 crime in endeavouring to conceal a criminal, or that the 
 crime of murder committed by one of their own members 
 could so influence the Body generally as to induce them to 
 conspire together to obtain immunity for the guilty. But I 
 maintain that the Institute, carried away by prejudices which 
 two revolutions have not been able entirely to uproot, have 
 been desirous of disputing with the secular power the right 
 to the possession of a criminal because that criminal is 
 invested with the habit of a religious order. 
 
 " No one will deny that the society in which we live docs 
 not exercise an important influence on our feelings, and does 
 not modify our judgments, or that a religious community 
 does not form in the midst of our great social body a sepa- 
 rate society of its own, with its own laws and its own 
 discipline, its own customs, its own jurisdiction. Doubtless 
 the civil body exercises control to some extent over a reli- 
 gious body, but that control is without influence on the most 
 powerful element of its constitution on its habits, its 
 customs, and its morals. In societies so organized men often 
 learn obligations different from those which influence ordi- 
 nary society. I therefore feel that it is necessary for you, in 
 investigating this case, to study the organization of this 
 Community of Christian Brethren, and I think you will learn 
 by this study that the errors, the reticences, the dissimula- 
 tions, of several of ihefrdres will be found on investigation 
 to be the errors, reticences, and dissimulations of one ; and 
 that you will understand the agreement of several witnesses 
 on a particular point is worth no more than the evidence 
 of a single witness. 
 
 ' ' From the moment a member of this Institute clothes him- 
 self with the dress of the Order he no longer belongs to 
 Society. The link connecting him with his own family is 
 not more thoroughly broken than is the link connecting him 
 with society at large. All that which in ordinary civil life 
 or in his own family denotes or distinguishes a man disappears 
 in the new life and the new family which he enters. First, 
 he is stripped of his name ; and you will have formed an 
 opinion from those names which have come under your notice
 
 282 TRIAL OF LEOTADE. 
 
 in the course of this trial how it appears almost a matter 
 of importance and obligation for the members to take and 
 impose names which by their very strangeness testify how 
 fully the metamorphosis is complete. 
 
 ' ' Then the uniformity of dress, the clothing held and used 
 in common, further show how all individuality disappears in 
 the Body which absorbs them. Add to these a complete 
 resignation of self, a perfect submission to the orders and 
 wishes of the Superior, and you have constituted a Society 
 representing in the highest degree the reality of absolute 
 power. The Superior of a Society thus composed does not 
 command the actions only of its members, he commands 
 their wills, and to a certain extent is master of their opinions 
 and convictions also. To form an opinion in a religious 
 society a belief in any particular event does not require 
 the effort that is necessary in civil life for the acceptance 
 even of the most self-evident truism : all that is required is 
 a single word. 
 
 " The day on which the Superior declared in the midst of 
 the Institute that Cecile had been seen to leave the vestibule : 
 that she had met with her death outside the Establishment : 
 that her body had been carried to the foot of the wall of the 
 garden in order to throw suspicion on the Institute on that 
 day the opinion of the whole of the freres was formed ; and 
 there was not one single member of the "whole Body who, 
 though without having seen or examined anything for himself, 
 did not come to the firm conviction that conspiracy alone 
 had accumulated together those proofs which now press so 
 heavily against the Institute. 
 
 " Would you therefore feel surprised if in a Society so 
 organized there were found a member who on seeing the 
 body hidden in the Pensionnat, and knowing of the crime, 
 should say to himself, ' To cause the trace? of the crime to 
 disappear to save a criminal is not actually forbidden by the 
 law. If a brother were to discover in a house traces of a 
 crime committed by his own brother, would he denounce the 
 crime or efface the traces of it ? Are we not all brothers, all 
 members of the same family ? Are the bonds of a religious 
 brotherhood less strong, less sacred, than those of natural 
 brotherhood ? The murderer is no doubt a great criminal,
 
 TRIAL OF LEOTADE. 283 
 
 but he must be kept for those punishments which Religion 
 reserves for such criminals : he is a member of our family, 
 and we must save him, and in saving him save also ourselves.' 
 These words and reasons are no longer the words and reasons 
 of our time, but they explain, without justifying, this struggle 
 of the Institute against Justice. 
 
 " Is it possible that there can be any doubt that some 
 directing mind, working within the Community, has not 
 organized a plan of resistance against Justice ? Scarcely is 
 any suspicious fact revealed before it is made to disappear. 
 Footmarks are noticed at the base of the wall : Leotade, who 
 believes that to admit in advance any damnatory fact is to 
 weaken it, says lie made them when going to the garden that 
 morning out of curiosity. Lorien, asked about them at the 
 same time, is silent. But three days afterwards the plan of 
 resistance is agreed upon : Leotade, against whom suspicions 
 are beginning to be aroused, must no longer assume the 
 responsibility of these footmarks; but Lorien, whose age 
 excludes him from all imputation, is put forward to admit 
 them! 
 
 " Does not the appearance of a plot still more reveal itself 
 when the director, Frere Irlide, under the most idle of pre- 
 texts, two days only after the crime, removes Leotade from 
 the chamber where he was then sleeping, in order to send 
 him to some distant garret, the very isolation showing the 
 horror which his presence created ? This fact, which touching 
 the guilt or innocence of Leotade is of the gravest importance, 
 is also of importance as showing the actual part taken by 
 Frere Irlide in the schemes devised against Justice. To 
 remove Leotade from the bedroom which he occupied on 
 the 15th, from which he could descend into the garden, only 
 to take him to a dormitory which he could not leave without 
 being seen, reveals not only that he who caused the removal 
 knew the culprit, but also that he was acquainted with the 
 means employed to dispose of the body." 
 
 The procureur general having thus disposed in a manner, and 
 with arguments which certainly are entitled to consideration, 
 of two of the main points in the case, one, that the crime had 
 been committed in the Institute, the other, that there was a 
 conspiracy formed in the interior of the Community of which
 
 284 TRIAL OF LEOTADE. 
 
 Frere Irlide was the head, for the purpose of concealing the 
 criminal from justice, proceeded next to discuss the evidence 
 as affecting Leotade himself. 
 
 Respecting the presence of Leotade and Jubrien in the 
 vestibule at the time of the arrival of the deceased, M. D'Oms 
 remarked : 
 
 " It was on the 18th that this question was put for the 
 first time to Conte, who stated that on the 15th he saw 
 Jubrien speaking to Leotade near the door. The two frires 
 being themselves questioned on this point and I beg you to 
 consider well their replies Leotade said, ' I was not in the 
 vestibule on the 15th. I was in the Pensionnat.' This was 
 his first reply. Confronted with Conte, he says ' he does not 
 remember/ an important modification of the first answer, 
 and to which I draw the particular attention of the jury. 
 
 " Jubrien, in his turn, when questioned, said, ' I did not see 
 Conte in the vestibule, but I did afterwards when in the 
 director's procure.' 
 
 " But on being also confronted with Conte, he says, ' he 
 does not remember.' There would have been nothing 
 remarkable if in the first instance Jubrien had said he did not 
 remember. He is of the Novidat, and his duties as pour- 
 voyeur take him to the vestibule several times a day. Le"otade, 
 on the contrary, belongs to the Pensionnat. He could not 
 therefore be in the vestibule of the Noviciat except on some 
 special occasion. He ought therefore to have remembered, 
 if on the 15th he had been in either the vestibule or the 
 parlour. 
 
 " But interrogated again on the 20th they are no longer 
 uncertain. They declare both of them that they were not 
 there! As for Conte, pressed repeatedly by ihejuge d' in- 
 struction, in upwards of thirty different interviews, told that his 
 assertion bore most heavily against Leotade and Jubrien, he 
 never hesitates : during the whole term of his long detention, 
 nearly six months, he never varies, Conte had no interest 
 in accusing ihefreres : he gained three or four thousand francs 
 a year from the Institute, and his father also worked for them : 
 their business was the existence of the whole family. Since 
 this event he has lost the business, which has been followed 
 as far as Conte is concerned by total ruin, by bankruptcy, 
 and by arrest !
 
 TRIAL OF LEOTADE. 285 
 
 " Take the hypothesis that Conte wished to throw suspicion 
 on the freres, would he have fixed as being in the vestibule 
 both Leotade and Jubrien ? It would have been quite 
 sufficient to have mentioned only one. He could then have 
 said, ' Between one who denies and one who asserts, my 
 word will not be suspected/ But when he declares he saw 
 Jubrien as well, he insures contradiction by another person 
 also. Jubrien at first stated he had not been to the vesti- 
 bule that morning, but later on he was compelled to admit 
 he had been there twice. One fact is fully admitted by all 
 parties, that Jubrien and Leotade had to arrange together 
 for sending for some wine from Saint-Simon ; Leotade could 
 not send there by himself. Interrogated separately on this 
 point, they both of them fix on a time, place, and day, dif- 
 ferent from the time, place, and day on which the affair was 
 agreed upon. On the 2nd of June, Jubrieu stated that on 
 the Friday, about half -past six in the morning, he went to 
 the Pensionnat to seek Leotade. He found him in the court, 
 and asked if he would send for his wine, as he (Jubrien) was 
 going to send for his. Leotade agreed to do this, and Jubrien 
 thereupon stated he went to obtain a permit for him. Asked 
 if he had endeavoured to find Leotade before this interview, 
 he stated he had sought for him either on the Wednesday or 
 Thursday, but could not meet with him. Pressed by the 
 juge d' instruction on this point he said, ' I saw Leotade on 
 the Friday at half-past six in the morning.' Jubrien, there- 
 fore, interrogated twice as to this meeting, twice fixes the 
 same day, the same hour, the same place. Let us see now 
 what Leotade says about this ! 
 
 " The day Leotade in the first instance fixes upon is the day 
 before the Friday, and before the barrels were got up. Now 
 the barrels were got up on the Thursday evening. He then 
 asked for time to reflect, and the next day he said it was the 
 Friday at eight o'clock. So he does not agree -with Jubrien 
 as to the time ; and then at this present trial he again says 
 it was on the Thursday night. 
 
 " Then as regards the alibi. 
 
 " The alibi of Leotade presents a whole mass of contradic- 
 tions, and the alibi of Jubrien rests solely on the interview 
 with Salinier, which has risen up in a wonderful manner in 
 the very midst of the trial. On that point alone is Jubrien
 
 286 TRIAL OF LEOTADE. 
 
 found to speak positively he who is never positive, and 
 remembers nothing about other matters ! Now let us exa- 
 mine this interview with Salinier. Jubrieri affirms that 
 Salinier and Bounhour saw Rudel and Vidal in the parlour, 
 but these latter did not see them. Rudel, who was not, like 
 Salinier, interrogated on this point six months after the event, 
 but was asked about it on the 25th April, replied that on 
 the 15th he saw no one in the parlour. - Vidal said the 
 same. Navarre, who had not then received his instructions, 
 said on the 18th no one came into the parlour during the 
 time Vidal and Rudel were there with him : no one could 
 have come in. So there are several persons who, at the 
 time the inquiries are first instituted, say they did not see in 
 the parlour either Salinier or Bounhour. These latter, 
 however, remember it after a lapse of six months. 
 
 "Bounhour and Salinier, interrogated separately on the 
 point, contradict one another. Bounhour says when he entered 
 the parlour with Salinier there was no one there : Salinier, 
 that Vidal and B/udel were there. Bounhour says he saw a 
 group composed of twofreres and two laymen. Salinier saw 
 three laymen, and one more/rere than Bounhour did. Even 
 this is not all. Bounhour says, ' We arrived in the parlour at 
 ten minutes past eight. We waited for Jubrien ten minutes 
 (which would bring it to twenty minutes past eight) . We 
 then went to the stable, and left a few minutes after nine/ 
 Bounhour thus fixes about one hour as the duration of the 
 interview ; Salinier half an hour. Take the mean between 
 the two statements and say three quarters of an hour, and 
 that you will find will not preclude the possibility of Jubrien 
 being in the vestibule at a quarter past nine, when the 
 deceased arrived with the books ! 
 
 " Leotade, after the discovery of the crime, is interrogated 
 on the employment of his time on the morning of the 15th. 
 He then indicated four persons who could corroborate his 
 statements. The first, Leopardin, does not, in spite of 
 Leotade's efforts, when confronted with him, remember any- 
 thing. The servants Baptiste and Bonnet contradict him, 
 as does also the porter. On the 23rd, interrogated afresh, 
 he stated he had been to the Infirmary, and had lighted a 
 fire there for the young St. Salvy. On the 5th of November,
 
 TRIAL OF LEOTADE. 287 
 
 however, he appears before the President of the Assize Court, 
 and then his memory has all the elasticity that can be 
 desired, and he establishes a whole series of alibis. A perfect 
 crowd of witnesses seem to have met Ldotade on the morning 
 of the 15th, and passed him from hand to hand. But then 
 Leotade was in communication with the Institute, and their 
 system of defence was already organized ! 
 
 " Then as to the comptes de conscience. That Frere Luc 
 collected these comptes de conscience, made a parcel of them, 
 and sent the parcel to the diligence office I do not deny. 
 But Leotade said nothing about them in the first instance, 
 nor did anyone else in the whole Institute. None of the 
 directors even ever thought of saying, ' Ask Leotade if he 
 did not write his compte de conscience on that day/ And 
 yet the performance of this duty is a solemn thing in a 
 religious society like the Institute. When, however, this 
 fact is produced in the urgent necessity of the defence, 'it is 
 surrounded by several contradictions. We therefore main- 
 tain that these comptes de conscience have been invented on 
 purpose for the defence. 
 
 " Now let us pass on to consider the fact of the changing of 
 bedrooms by Leotade. From the 15th to the 16th Leotade 
 slept in a room having two beds placed close to a door of 
 which Leotade had the key. According to Frere Irlide the 
 change took place in order to give Leotade's place to Frere 
 Luc, because the latter had felt a vague, undefined terror 
 after the discovery of the crime. Why should the murder 
 terrify a frcre belonging to this Institute of Christian 
 Brethren ? Leotade could from that chamber during the 
 night of the 15th have descended to the garden, and have 
 then taken all the precautions necessary for the concealment 
 of the crime ! 
 
 " Then as regards the shirt No. 562. The shirt was found 
 in the Noviciat. Leotade belongs to the Pensionnat, No 
 one, however, has recognized or admitted that shirt as his 
 own proof, therefore, that it is suspected. Moreover, it 
 often happens that novices wear clothes belonging to the 
 Pensionnat. Leotade might therefore wear a shirt belonging 
 to the Noviciat. Remember, too, that on the morning of the 
 16th, Leotade was in the Noviciat, not far from the room
 
 288 TRIAL OF LEOTADE. 
 
 where the linen is kept. His statement is that he went to 
 give some money to the shoemaker, but that meeting 
 Jubrien in the corridor, he gave it to him instead. The 
 shoemaker says he did not see him : Jubrien says he did not 
 see him. Leotade, therefore, was in the Novlciat on the 
 morning of the 16th for some reason that is suspicious; and 
 if he says he saw the shoemaker and saw Jubrien (whom he 
 did not see) it is to account for a fact which he finds it 
 impossible to deny. 
 
 " Then as to Leotade's wanderings in the town on the morn- 
 ing of the 16th. His proceedings on that day are of the 
 highest importance. On leaving the Institute he goes to 
 Conte's wife, and he gives as a reason for his visit the memo- 
 randum book which Conte had made for him some weeks 
 back, and in which he stated Conte had neglected to insert 
 some leaves of parchment. He asks for Conte, whose 
 services would be very unnecessary for the trumpery altera- 
 tion, and without leaving the book with any of the workwomen, 
 he carries it away with him. After him comes Jubrien also 
 to Conte's house, to get, as he says, some pasteboard, and he 
 goes away without asking for it. He, like Leotade, also 
 inquires for Conte, and, like Leotade, departs without exe- 
 cuting the mission he had in hand. The same day Leotade 
 goes to Lajus. M. Lajus had heard of the discovery of the 
 body : he sees Leotade enter, and he says to him, ' Tell me 
 cherfrere, what is this that has occurred in the cemetery ; they 
 have found the body of a girl who works at some book- 
 binder's/ ' I have just come from the bookbinder in ques- 
 tion,' says Leotade, ' and if we had known his antecedents 
 we would never have employed him.' 
 
 " Now at this time, ten o'clock in the morning of the 16th, 
 the cause of death was completely unknown, the body not 
 having been examined or removed. How is it then that 
 Leotade attaches the murder to Conte on account of his 
 antecedents ? How did Leotade learn anything about Conte's 
 antecedents at all ? Were they made known to him privately 
 bv any person ? No : he cannot mention anyone as his 
 informant. Was it public report which within an hour after 
 the discovery of the crime proclaimed aloud these doubtful 
 antecedents of Conte ? Still less is this the fact : for Justice
 
 TRIAL OF LEOTADE. 289 
 
 herself, anxious to inquire into Conte's character, could not 
 for some days after learn anything about these antecedents 
 which Leotade knew so thoroughly on the 16th. Therefore, 
 outside of the Institute we can find no one who could com- 
 municate to Leotade anything on this head. 
 
 " But inside the Institute there is a member acquainted for 
 many years with these scandalous passages in Conte's life. 
 Would it not be wanting in the most ordinary logical deduc- 
 tions not to infer from this fact that it was from the mouth 
 of one of the directors of the Institute that the information 
 obtained by Leotade had been procured ? But you will say 
 that this supposition assumes that the crime was known in 
 the Institute from the very moment it was committed, or at 
 the very latest, on the night of the 15th or the morning of 
 the 16th April. There is nothing impossible in such a 
 hypothesis ! 
 
 " From the very time the crime was discovered we meet 
 with nothing but facts which testify to the earnest desire of 
 the Institute to mislead. From this you can draw two 
 inferences : the first, that the murder had been committed 
 in the Institute ; the second, that their knowledge had been 
 obtained from the confession of the criminal himself. It is 
 the great glory of religion to possess consolations for every 
 sorrow, and alleviations for every grief. The atrocity of 
 some fearful crime may terrify human, but can never terrify 
 divine justice. There is no crime so enormous which religion 
 cannot pardon and absolve. Leotade flies from the scene of 
 the murder, covered with shame, agitated with remorse ! 
 It is no exaggeration to suppose that the directors, with 
 that thorough knowledge they possess of each individual placed 
 under their control, did not notice the trouble that weighed 
 upon Leotade. Do you think it would be difficult to obtain 
 a confession on a promise that the crime should not be 
 denounced? Do you think this confession would not be 
 easily obtained on its being represented to Leotade that it 
 was the only way to save him from justice ? 
 
 " The position of Leotade assumes then quite a different 
 aspect. He is no longer an ordinary culprit, but a culprit 
 put forward to do battle with the secular power. On his 
 head rests the honour of the whole Community. Let him
 
 290 TRIAL OF LEOTADE. 
 
 stand unshaken in the combat ! Behind, supporting him, are 
 his brothers ; and perhaps his very judges will be deceived, 
 and will confound the calm which a sense of security will 
 give him with the serenity of an innocent man ! 
 
 " If the directors of the Establishment had loyally aided in 
 the discovery of the crime, if it were true that, without sub- 
 terfuge, they lent to the researches of justice a thoroughly 
 earnest active co-operation, the guilt of Leotade would be 
 inexplicable. One cannot imagine that anyone stained with 
 such a fearful double crime could the very next day pursue 
 his ordinary occupations without his countenance betraying 
 some signs of inward agitation and alarm. But it is quite 
 capable of explanation when an active directing mind is felt 
 from the commencement interposing itself between the 
 criminal and justice. If Leotade had neglected his customary 
 duties, if he had buried himself in solitude, he would have 
 made the whole Institute confidants of his guilt. 
 
 " The guilt of Leotade is therefore proved by his own acts 
 and by those plots concocted in the interior of the Institute. 
 Leotade was in the vestibule of the Noviciat when Ce'cile 
 arrived with the books ! He was there with her for a moment 
 alone ; by a look, a gesture, a friendly word, he enticed her 
 in the direction of the Pensionnat ; then changing his plans, 
 and taking advantage of the perfect solitude in which he found 
 himself, he directed his steps towards the garden : the door 
 of the stable, perhaps half open, gave him the idea of drawing 
 her on to the spot where the pigeons were kept, and there, in 
 the solitude and isolation of the place, the crime was com- 
 mitted ! The body would be easily hidden during the rest 
 of the day ; and in the night Leotade would descend from 
 his dormitory and throw it over the wall of the garden into 
 the cemetery. Such is, in substance, the explanation of the 
 drama which has so long and so painfully agitated the whole 
 of France !" 
 
 The speech of M. D'Oms was listened to throughout with 
 the greatest attention, and the excitement evinced at some 
 portions of it was intense. The above summary can neces-
 
 TRIAL OF LEOTADE. 291 
 
 sarily only give, in a very condensed form, an outline of the 
 contents. It was undoubtedly the best speech that was 
 delivered in the course of the trial ; and the effect of it on 
 the minds of the public and of the jury was very great. On 
 its conclusion M. Gasc rose to commence what was indeed, in 
 the face of the prejudices and excitement of the audience, a 
 very unequal struggle on behalf of Le*otade. 
 
 After some remarks on the atrocity of the crime, and the 
 character of the deceased, made with the object of counter- 
 acting the effect of M. D'Oms' speech on the minds of the 
 jury, M. Gasc proceeded to refer to the remarkable case of 
 Calas, one of the most singular instances of judicial error 
 that have taken place in France, and which, as it occurred 
 in Toulouse, was urged by him with much force on the jury 
 as a warning against committing another error as fearful in 
 its results. He then went on to contest the position taken 
 up by the prosecution, that there was any similarity between 
 the doctrines and rules of the Institute and those of the 
 Society of Jesus. There was nothing, he said, in common 
 between them; the vows of poverty and obedience were 
 taken, it was true, but they were simply taken relative to 
 the duties each member had to fulfil in the Community. The 
 assertion, therefore, made by them, not only against Leo- 
 tade, but also against the Institute, was entirely destitute 
 of foundation. 
 
 That the prosecution had failed in their endeavours to 
 trace the crime arid to discover the criminal, he submitted 
 was simply owing to their having insisted in looking for him 
 within the walls of the Institute ; they had committed an 
 error, and had persevered in it, which naturally resulted in 
 the loss of all traces of the criminal. 
 
 With reference to the evidence of Madeline Sabathier, M. 
 Gasc remarked that the defence had never relied upon or 
 occupied itself with her at all ; she had never been anything 
 of importance to them. He admitted the prosecution had 
 obtained from her a retraction of her original evidence, but 
 denied they had ever obtained from her an avowal that 
 the Institute had influenced her in making it. Even as it 
 was, her original deposition had not been entirely retracted 
 
 u 2
 
 292 TRIAL OF LEOTADE. 
 
 or destroyed ; there was one portion which ought, he said, to 
 weigh on the most prejudiced minds. Madeline had offered 
 the mother of the deceased four francs. If the defence had 
 wished to buy over the family of the deceased, surely they 
 would have offered something more than that sum. 
 
 Then as regarded Vidal ; the prosecution set up the defence 
 had corrupted him; but the jury /who knew the history of 
 that evidence, would say whether the accusation of corrup- 
 tion made against them could be maintained. It was known 
 he had asserted he had seen Cecile leave ; he had spoken of 
 it to Rudel and others, and it was a matter of public notoriety. 
 The director at Lavaur, therefore, on hearing of it, sent off 
 Vidal to Toulouse, and up to that time neither Frere Floride 
 nor Frere Irlide had appeared in the matter at all. He 
 ridiculed the idea that because Vidal, who was poor, had 
 his fare paid and two francs given to him to get his 
 dinner with, the Institute therefore suborned and corrupted 
 him. 
 
 After reminding the jury that the members of the Institute 
 were of the people, and sprung from the people, and had 
 their interests and welfare at heart, M. Gasc proceeded to 
 enlarge on the improbability of the case set up by the prose- 
 cution, that the body had been thrown over the wall of the 
 garden and not over the wall of the Rue Riquet. He denied, 
 however, the fact of any projection, and asserted that the body 
 had been carried in and placed where it was found. As proof 
 of this, he argued that the position of the body was exclu- 
 sive of the possibility of its having been thrown, as it was 
 found resting on the tips of the toes, the knees, the elbows, 
 and the face, and the clothes were not displaced, though the 
 height of the wall was about nine feet. He submitted that 
 the body, if really thrown, ought to have had the clothes 
 completely disarranged, and the body itself at least partly 
 uncovered ; and he pressed also on the jury the fact that it 
 had made no mark whatever on the soil of the cemetery, 
 though on the night and morning in question it rained until 
 one o'clock, and had rained heavily for some days previously, 
 and the soil was soft. The jury had not examined the spot, 
 and could not therefore understand how easy it was for the 
 body to have been carried. He denied that the gate of the
 
 TRIAL OF LEOTADE. 293 
 
 cemetery was locked on the night in question, and though 
 the concierge said it was, he did not believe it, as the con- 
 cierge could not possibly admit otherwise. There was still, 
 besides, the possibility of approach by the side of the canal 
 and by the other gardens adjoining. 
 
 The prosecution affirmed that Cecile was seen to enter the 
 Institute on the morning of the 15th, and was never after- 
 wards seen to leave. He denied that she was seen by any 
 person in the populous neighbourhood through which she 
 passed; therefore, was it impossible for her to leave without 
 being seen ? On the 16th of April upwards of thirty-eight 
 persons examined on this point, all living in the adjoining 
 streets through which the deceased had passed with the 
 books, stated that they did not see her go by. 
 
 As to the petal of geranium being found in the deceased's 
 hair, and similar geraniums found on the wall of the Institute, 
 he argued they were wild geraniums growing anywhere where 
 flowers would thrive ; they were to be found in the cemetery 
 itself. The hair of the deceased was loose, it was a boisterous 
 and windy day, and he submitted the wind could easily have 
 carried a petal of a flower, which might have caught in her 
 hair. It was not likely if the body had been thrown over 
 the wall of the Institute, that the hair would have carried 
 away only one petal ; it would have rooted up the whole flower. 
 As to the tow or oakum found in the hair, M. Filhol 
 himself said he could not identify it with the rope found in 
 the garden. 
 
 The distance of the body [the nearest part of it] from the 
 base of the wall of the Institute garden was four inches; the 
 summit of the wall overhung nine inches ; so that the deceased 
 if thrown over from the garden did not describe the parabolic 
 curve usually followed by projectiles, but fell inside the 
 overhanging summit of the wall, which M. Gasc urged was 
 a clear impossibility (a) . 
 
 (a) The defence -laid great stress upon this point, which certainly tends, 
 at first sight, to show that the body could not have heenthrown over into the 
 cemetery. If the person throwing the body stood on the ground on the 
 garden side of the wall, it would have been practically impossible for him, 
 to have thrown the body over a wall whose summit overhung the base 
 nine inches, so as to cause it to fall at a distance from the base of only
 
 294 TRIAL OF LEOTADE. 
 
 Passing en to the entry of the deceased into the vestibule 
 at a quarter past nine on the morning of the 15th, M. Gasc 
 proceeded to discuss the difficulties in the way of her being en- 
 ticed from thence to the stable without being seen : " Neces- 
 sarily she must pass along the court-yard of the Noviciat, 
 before the kitchen and refectory, along an open passage, 
 well lighted, forty yards in length, in which members of the 
 Establishment are constantly to be found. She would then 
 have to pass into the tunnel, which has nothing dark or 
 mysterious about it, but is lighted by large openings ; then 
 along another passage, commanded by several windows, to 
 the stable. * * * * The chamber above is used by 
 the servants, one or all of whom might have entered at any 
 moment ; on leaving this chamber she would enter the hay- 
 loft, filled with hay, but having a good number of openings ; 
 one window towards the garden ; two doors and another 
 opening looking into the court -yard of the barracks adjoining, 
 so placed that the bayonet of the sentry on duty there is always 
 at the level of the opening. Could this be the place of the 
 murder? the garden close by ; Loricn there at work ; frcres 
 in the Oratory at prayer, and the murder committed without a 
 groan or cry of the victim ! [It will be remembered the 
 medical evidence negatives entirely strangulation or suffoca- 
 tion, so there was no mechanical reason for the deceased not 
 
 four inches. But assuming a ladder to have been iised, the difficulty 
 vanishes, for the body then, instead of being thrown, might have been 
 dropped over. In that case, however, a further difficulty avisos. For a 
 man to have mounted, with the deceased in his anus, on a ladder resting 
 on the wet soil of a flower bed, must have caused a considerable impres- 
 sion on the soil, whereas the impression was admitted to be slight, and 
 also that the murderer did not mount on the ladder for the purpose of 
 throwing the body over, but only to reconnoitre (vide p. 263). 
 
 The position too of the geranium plant on the top of the wall, a petal 
 of which was alleged to have been found in the hair of the deceased, 
 was out of the line of projection, if made from the spot where this 
 impression was found, and so far negatives the probability of the l.mdy 
 being thrown from the top of a ladder. The probability is that, if 
 thrown at all, the body was thrown by a person standing in the garden, 
 probably from the walk near the base of the wall (ride plan) in order to 
 avoid observation. In that case, however, could the parabolic curve be 
 prevented, and could one person, however strong he might be, throw a 
 body (sixty pounds in weight, French measure, or about live stone) over 
 a wall nine feet high I Neither hypothesis is free from difficulty.
 
 TRIAL OF LEOTADE. 295 
 
 having cried out.] No trace of the crime to be found in the 
 hay-loft on the 16th, though everything was moved and 
 examined, and no trace of blood. The body left hidden 
 amongst the hay and clover all the day, buried in fact under 
 the hay, and yet only two little filaments, almost defying 
 analysis, found upon her clothes the next morning; and 
 the clover too of the commonest kind, cultivated by every- 
 body ! 
 
 " Then as to the disposal of the body. It rained all the 
 evening and night, up to one o'clock in the morning, yet the 
 clothes were found to be dry. Allowing every possible care 
 and precaution taken in the removal of the body from the 
 stable, the clothes must have got wet . But if the body had 
 been carried in a bag or box it could have been placed in the 
 cemetery conveniently, and the clothes then would naturally 
 have been found dry. If the crime were committed in the 
 Institute, the murderer must have removed the body at an 
 early hour, probably midnight or one o'clock ; he must have 
 got up and left his room, which he could not do without 
 awaking the porter and the Frere Director, both sleeping close 
 by, and then have removed the body when it was raining ; yet 
 the clothes were found dry ! " 
 
 M. Gasc then proceeded to discuss the main point of the 
 case, that Leotade and Jubrien were present in the vestibule 
 when the deceased arrived with the books. It is impossible 
 to give more than a summary of his arguments on this point, 
 which were involved and tedious in the highest degree, 
 rendering it very difficult to follow or understand the deduc- 
 tions he sought to draw from them. In substance they were 
 shortly as follow : Conte alone spoke to the presence of the 
 twofreres. Marion did not see them, though she entered 
 and put down the basket within four feet of where they were 
 said to be standing. The assertion that the basket she was 
 carrying on her head prevented her seeing them was absurd, 
 because it is particularly essential that persons carrying any- 
 thing on their heads should look straight in front of them. 
 Therefore Marion not seeing the freres proved they were not 
 there. Rudel and Vidal also did not see them. He laid 
 much stress on the fact that Conte on his first iuterroga-
 
 296 . TRIAL OF LEOTADE. 
 
 tory said nothing about the presence of the two freres in 
 the vestibule, and also that he said he saw in the parlour a 
 woman sitting down whom no one else ever saw, and who, 
 in fact, was not there at all. He excused the contradictions 
 noticeable in the answers made by Leotade to his various 
 interrogatories, on the ground that he was in the mostrigorous 
 solitary confinement from the 26th -of April to the middle 
 of August, part of the time being the height of summer, the 
 heat of which in Toulouse is particularly oppressive ; deprived 
 of air; cut off from all communication with the other 
 prisoners and the outside world, and debarred of the consola- 
 tions of religion "no wonder," M. Gasc said, "his mind 
 and memory should suffer from treatment which would have 
 driven other persons out of their senses. In all his experience 
 he had never met with or heard of such cruel treatment" [an 
 observation which drew from the procureur general the 
 remark, " 77 n'y a pas de bonne foi chez vous, M. Gasc," but 
 which met with many signs of approbation from the public 
 present in court] . He relied on what was known as the 
 " incident Salinier," as a proof of Conte's falsehood, and 
 complained of the way the witness for the defence, speaking 
 on .this essential point, had been treated. For merely 
 speaking to it at the first trial Bounhour had been im- 
 prisoned four days. He accounted for Jubrien not remem- 
 bering the interview with Salinier in the first instance by the 
 fact that it was not until his discharge from prison that he 
 met Bounhour, who recalled to his mind the visit to the 
 stable. Salinier, being asked on the point, said he remem- 
 bered seeing Yidal quite well, who was the son of one of his 
 oldest friends. 
 
 Respecting the alleged motive for the meeting between. 
 Jubrien and Leotade in the vestibule the sending for wine 
 to Saint-Simon M. Gasc observed that it was improbable 
 in the highest degree that two men, each being pourvoyeur, 
 and each having a procure of his own, should meet for this 
 purpose in the vestibule of the Noviciat ; and as to the alibi, 
 he dwelt with much force on the conduct and demeanour of 
 Leotade in the course of the morning, arguing from his 
 occupations and proceedings that day, the improbability of 
 his being able to go through with them so shortly after
 
 TRIAL OF LEOTADE. 297 
 
 committing such an atrocious crime. He did not, however, 
 examine in detail the exact times spoken to by the witnesses, 
 alleging his unwillingness to make up what he called a mere 
 "faisceau de dates." His arguments and deductions on 
 this point were not at all clear, and it is difficult to discern 
 what he sought to prove from them beyond the fact (which 
 was not denied) that Leotade' s self-command during the day 
 of the murder, when at any moment the body might have been 
 discovered in the stable, was marvellous. 
 
 On the subject of the shirt No. 562, he urged on the jury 
 that it had never been brought home in the slightest degree to 
 Leotade, and ridiculed the idea propounded by M. D'Oms, 
 that the director had "banished" Leotade from his usual 
 room as soon as he knew of the murder, because he believed 
 Leotade to be the criminal, and wished to isolate him. 
 Nothing could be more absurd. Leotade was sent to a 
 dormitory in which there were sixty beds, and placed amongst 
 the scholars who boarded and slept in the Institute, an 
 arrangement which Frere Irlide could never have been a 
 party to if he had suspected Leotade. 
 
 On the conclusion of M. Gasc's speech, M. Saint- Gresse 
 was by right entitled to address the jury and the procureur 
 general to reply, but owing to the great length of the trial, it 
 was arranged that both this speech and the reply should be 
 waived. The President thereupon asked Leotade if he had 
 anything to add to what his counsel had said ? 
 
 Leotade. I do not wish to prolong the trial, but I wish 
 to say that I have never stated to the court anything that 
 is false. If there have been contradictions in my numerous 
 depositions, it is owing to the solitary confinement I have 
 undergone. 
 
 The President then declared the evidence on both sides to 
 be closed, and proceeded with his summing up to the jury. 
 
 The summing up of the President was divided by him 
 into two parts, the first relating to the localization of 
 the crime in the Institute. On this point it is not necessary 
 to follow him closely, because it may fairly be admitted
 
 298 TRIAL OF LEOTADE. 
 
 without at all prejudicing the case set up on behalf of 
 Leotade, that the fact which can be relied upon with any 
 amount of certainty as proved in the whole course of the 
 trial is that the deceased entered the vestibule of the 
 Noviciat on the morning of the 15th of April at about a 
 quarter past nine, and was never afterwards seen to leave ; the 
 second part was how the crime was sought to be brought 
 home to Leotade. It is on this head only that the remarks 
 of the President need be given. His summing up as a whole 
 was able and effective. Its great fault is the bias evinced 
 against Leotade. Putting entirely on one side the remarks 
 made on the first head of the summing up, the following is 
 an outline of the observations addressed to the jury on the 
 main point how out of an Establishment of several hundred 
 freres, Leotade alone could be singled out as the guilty party. 
 " Of the many persons residing in the Noviciat and the 
 Pensionnat'' the President remarked, " there were but few 
 who from their duties on the morning of the loth could be con- 
 cerned in the crime. The day was a Thursday, and at the 
 time of the murder nearly all the freres were in the salle des 
 exercises under mutual surveillance; therefore suspicion could 
 not attach to any of them. The number of those whose 
 duties would occupy them elsewhere would be about twelve. 
 First, there was the director, Frere Liefroy. He could, how- 
 ever, not possibly be guilty, because Conte had remained with 
 him in the library upwards of an hour, and when he left 
 Cecile had disappeared. Then there was Jubrien, but he 
 also could not be guilty, nor the porter Lactenus, for the 
 latter went up with Conte to the library with the books, and 
 when he came down the deceased had disappeared. Frere 
 Irlide and the porter of the Pensionnat must also be exempt 
 from suspicion. The names of the others he did not know, 
 but amongst the whole twelve there was not one who from 
 his duties had so many facilities for the murder as Leotade. 
 He was pourvoyeur for the Pensionnat, possessed complete 
 liberty of action, and had no duties in common with the 
 other freres. Assuming the stable to be the place of the 
 murder, he of all others was the most likely to be able to 
 entice Cecile there ; there he kept his rabbits and pigeons, 
 and the place was to some extent under his dominion.
 
 TRIAL OP LEOTADE. 299 
 
 "It being thus shown that Leotade was amongst the 
 number of those who had facilities for committing the crime, 
 the next question had to be considered was he in the 
 vestibule on the 15th when the deceased arrived? On this 
 point Conte's evidence was of importance. Now Conte, when 
 he went to Auch, did not know what had become of Cecile, 
 and he did not know when arrested on the 17th. When 
 interrogated the second time as to who was present in the 
 vestibule, he replied, 'Leotade and Jubrien.' In Conte's 
 mind the fact was not at the time of the slightest moment, 
 for he knew nothing of the deceased's end. Leotade and 
 Jubrien, both examined at this time, deny having been in 
 the vestibule. Confronted with Conte, who could not under- 
 stand a denial of what he considered then a fact of no 
 moment, Conte re-asserted his former statement, and re- 
 marked to Jubrien, ' I saw you so well that when I had 
 taken down the basket of books from off" Marion's head, I 
 said to you, Good day.' Both Leotade and Jubrien then said 
 they did not remember. 
 
 " It must not be forgotten that at this time the twofreres 
 were still at liberty ; they could therefore arrange together 
 what to say, and that they did arrange what to say was the 
 more probable from the answers they afterwards gave on 
 the day they were arrested. They then said, ' We are quite 
 sure we were neither of us in the vestibule on the 15th/ 
 The prosecution very naturally wanted to ascertain on which 
 side was the truth. It was known that there was a reason 
 for an interview between Leotade and Jubrien on the day in 
 question, as they both had to send to Saint-Simon for wine. 
 They were therefore separately asked, being then in custody 
 and not able to communicate with each other, when this 
 interview took place. Leotade said he saw Jubrien in the 
 evening at the Pensionnat ; Jubrien that he saw Leotade 
 in the morning at the Noviciat. 
 
 " Now how coiild Conte be deceived as to their presence in 
 the vestibule, and why should he say what was not true ? The 
 fact was of no importance at all to him ; he had no occasion 
 to wish to throw suspicion on the Institute ; he did not 
 even then know the deceased was murdered ; he was under 
 considerable obligations to the freres, working for them to
 
 300 TRIAL OF LEOTADE. 
 
 the amount of 4000 fr. a year. His good faith too was 
 further shown by his answer to the woman Baylac, who 
 wished to throw suspicion on the Institute. 
 
 "Compare with Conte's testimony on this point-the evidence 
 of Salinier and Bounhour. You will remember the presence 
 of these two witnesses in the vestibule at a time when they 
 saw everybody and no one saw them, unless it were Jubrien, 
 who, however, did not remember the fact until ten months 
 after. Salinier at first did not remember the day he called 
 at the Institute; but ten months after, he remembered 
 having seen Vidal there, whom he knew. Salinier saw three 
 laymen and one frere in the parlour ; Bounhour two laymen 
 and two freres. Navarre, who had always an invention at 
 the service of the Community, said, ten months after the 
 event, he saw Jubrien take a person by the arm and lead him 
 away from the parlour, and then Bounhour, by a most happy 
 coincidence, said he remembered Jubrien taking him by the 
 arm as described, and that the arm was the left arm ! 
 
 " Vidal fixed the time of his entry at nine o'clock. He was 
 expressly told not to call before. He asked outside in the 
 street, before he rang, what o'clock it was, and was told it 
 had just struck nine. Bounhour fixed the time of his visit 
 a little after eight. Yet he said he saw Vidal ! At half-past 
 eight he went to the stables with Salinier and Jubrien, but they 
 left at a little after nine, which would not make it impossible 
 for Jubrien to be again in the vestibule at a quarter past. 
 
 " Leotade, when in prison, gave an account of the employ- 
 ment of his time on the morning of the loth. He first stated 
 that between nine and eleven he saw Baptiste in the cellar, 
 Leopardinin the kitchen, and another frere. Baptiste being 
 asked what he was doing between nine and eleven, said he 
 never went to the cellar until the evening ; there could not 
 therefore be any meeting between the two. Leopardin at 
 first also denied meeting Leotade in the kitchen. This 
 account remained in force until Leotade was transferred to 
 another prison. Then he underwent another interrogatory, 
 and his answers were in contradiction with his previous 
 statements. He then said for the first time he wrote his 
 compte de conscience between nine and ten o'clock in the
 
 TRIAL OF LEOTADE. 301 
 
 morning. At that time, however, it was proved he was in 
 direct communication with the Institute (a) . 
 
 " Then as regards the changing of beds. There was proof 
 that on the night of the 17th, L6otade was sent to sleep in 
 another dormitory from which it was not easy to get out at 
 night without passing through a dormitory containing three 
 rows of beds. The accusation saw in that a species of punish- 
 ment, and also suspected other reasons. The defence 
 explained the measure by the terror evinced by Frere Luc 
 the night after the discovery of the murder. But it would 
 have been equally easy to have sent Frere Luc where Leotade 
 was sent to. If it were really a proceeding of moment, it 
 was unfortunate it occurred at a time which was strangely 
 coincident with the circumstances arising after the murder. 
 
 te With reference to the shirt No. 562. Leotade being 
 asked what he had done with the shirt given to him on the 
 1 7th, and which he alleged he did not use because it was too 
 small for him, asserted he returned it to the infirmier. The 
 latter being questioned, at first denied it, and also that any 
 one had returned him a clean shirt within the space of six 
 months, but at the trial he corroborated Leotade as to the 
 return of the shirt. Now if Leotade did not use this shirt, 
 it was because it was too small ; but the jury had heard 
 M. Gaussail, and his evidence on that point would show 
 them the reliance they were to place on that statement. 
 
 " In order to attribute the shirt which was found in the 
 Noviciat to Leotade, it must be shown that he had facilities 
 for placing it there. Now on his arrest there was found in 
 his possession a bunch of keys, one of which would open the 
 door of the linen room of the Noviciat. He had admitted 
 he was in the neighbourhood of that room on the morning 
 of the 16th, and gave as a reason that , he wanted to pay 
 some money to the shoemaker. But the shoemaker being 
 examined denied having met him, and then Leotade said he 
 met Jubrien outside in the corridor and gave the money to 
 
 (a) It was not thought necessary to insert the evidence touching on 
 this and one or two other collateral points of no great moment. There 
 is no doubt but that Leotade at that time was in communication with 
 the other freres.
 
 302 TRIAL OF LEOTADE. 
 
 him. But Jubrien, examined separately, said lie did not 
 remember seeing Leotade at all." 
 
 The President then concluded his summing up by a. resume 
 of Leotade's proceedings in the town on the morning of the 
 16th, remarking more especially on the visits to Conte's 
 house by Leotade and Jubrien on the morning of the ]6th, 
 and on the conversation held by the former with Lajus. 
 There is no doubt but that the proceedings of both Leotade 
 and Jubrien on the morning after the murder were sus- 
 picious, and it is a remarkable fact that they alone, out of 
 the w T hole number offreres in the Institute, should call at 
 Conte's house after the discovery of the body, both alleging 
 as the object of their visit reasons that were equally frivolous. 
 Bearing in mind also that these two freres were the two 
 spoken of by Conte as present in the vestibule at the time of 
 the arrival of the deceased with the books, these visits, and 
 the conversation held by Leotade with Lajus, are of un- 
 doubted importance in weighing the evidence adduced by the 
 prosecution against Leotade. 
 
 Referring to the visit to Lajus, the President remarked : 
 " Now there was indisputably a reason alleged for this visit. 
 Leotade had to pay Lajus a sum of money ; the only point 
 is that the Institute, contrary to their ordinary custom, 
 should send to pay him such a trifling sum before it was due. 
 The conversation then turns upon the subject of the book- 
 binder who had taken the girl to the Noviciut. Leotade 
 observes, ' That bookbinder is Conte. I have just come from 
 his house. If we had known his antecedents before, we would 
 not have employed him at all ; one cannot say positively he is 
 
 the culprit, but ' . Now Leotade, when in the first instance 
 
 questioned as to thte conversation, says, ' It is not true ; I 
 did not speak about Conte's character first to Lajus ; it was he 
 who said to me that Conte's antecedents were very question- 
 able.' Lajus, confronted with Leotade, says, ' It is impos- 
 sible ; I was not acquainted with Conte, and I knew nothing 
 of his antecedents.' Leotade then changes his ground, and 
 says, ( I could not have had this conversation with you on the 
 16th, but perhaps it might have been on the 19th.' Lajus 
 inquires, ' Had you on the 19th just come from Conte's 
 house?' 'No,' replies Leotade. ' Then/ returned Lajus, 
 1 that fixes it, for you said first of all you had just come
 
 TRIAL OF LEOTADE. 303 
 
 from Conte's house, so this conversation could only have 
 taken place on the 16th/ You will also bear in mind that 
 Lajus mentioned the conversation both to his wife and his 
 servant on the same day. 
 
 " What has been the conduct of the accused since the time 
 of these denials ? He has constantly affirmed he could not 
 have had this conversation with Lajus on the 16th, for then he 
 did not know anything about Conte's antecedents, but on the 
 19th he believes it possible for him to have done so. The 
 variance between the two on this point still exists, and it is 
 for you to determine whether to give the preference to the 
 statements of Lajus or the statements of Leotade. Lajus 
 does not stand alone ; Leotade does." 
 
 On the subject of Leotade's demeanour after the murder, 
 the President observed : 
 
 " It is urged by the defence that the calmness of manner 
 shown by Leotade during the course of the afternoon of the 
 15th, when the fear of the discovery of the hidden body must 
 have been weighing on his mind, is a proof of his innocence. 
 Undoubtedly this objection would be of weight in an ordi- 
 nary case, for generally crime does leave behind it traces of 
 fear, and of the agitation caused by remorse. But you must 
 remember you have in Leotade to study a character quite 
 exceptional in its nature ; a character crushed and remoulded 
 (broyee et repetrie) by the discipline of that Noviciat which 
 works such wonderful transformations. Which of us possesses 
 the secret of those penances and mortifications by the aid 
 of which peace can be restored even to a mind racked by 
 remorse ? It is the power of religious habits and influences, 
 this inner life of the cloister, that is the problem now 
 submitted to your judgment and experience for solution, in 
 considering the facts and proofs brought to light by the pre- 
 sent trial. " 
 
 The President then proceeded to put the following question 
 to the jury : 
 
 ' ' Was Louis Bonafous, in religion Frere Leotade, guilty or 
 not guilty of the murder of Cecile Combettes on the morning 
 of the 15th April, the said Cecile Combettes being then 
 under the age of fifteen years ?" 
 
 The President after putting this question pointed out to 
 the jury that by the decree of the 8th of March, a majority
 
 304 TRIAL OF LEOTADE. 
 
 of nine out of the twelve members of the jury would be 
 necessary for a verdict, but that the question of " extenuating 
 circumstances " was still left as it originally stood at common 
 law (le droit commun], and a majority of only seven to five 
 would be required. 
 
 The jury, after an absence of an hour and a half, returned 
 into court with a verdict of Guilty by a majority of more 
 than nine voices, but with " extenuating circumstances." 
 
 Sentence was then passed on Leotade of penal servitude 
 for life. 
 
 The court further condemned him to the payment of costs, 
 but nonsuited the^plaintiff in the civil action, on the ground 
 that the proceedings for damages ought to have been taken 
 against the Superior General in Paris. 
 
 On the 26th of January, 1850, Leotade died at the bagne 
 at Toulon. His conduct from the time of his conviction up 
 to the time of his death was essentially that of an innocent 
 man. His end is described as being calm and peaceful. 
 
 When the evidence is doubtful the demeanour of a prisoner 
 after conviction, and especially his conduct and language in 
 his last moments, are often found to have an important 
 bearing on the question of his guilt. Though it does not 
 necessarily follow that the approach of death always impels 
 a prisoner to speak the truth, yet at least the motives for 
 falsehood are taken away. On the morning of his death 
 Le"otade sent for the chaplain and one of the head officers of 
 the bagne, and for the last time solemnly declared his inno- 
 cence, avowing also his entire ignorance of how or by whom 
 the crime had been committed. Since his death a vigorous 
 effort has been made in France by his brother Fran 9013 
 Bonafous to rehabilitate the memory of Leotade, but 
 up to present time without effect. The late Emperor 
 (Napoleon III.) is reported to have taken a great interest 
 in the case. It is not, however, now likely that anything 
 further will be done in the matter, and the question of 
 the guilt or innocence of Leotade must be left, like a great 
 many similar cases, to the judgment of posterity. 
 
 London : Printed by Shaw & Sons, Fetter Lane.
 
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