to drown herself, she would endeavour to be choaked as soon as she could; for those persons that are drowned against their own consent do swallow a great deal of water, but those that drown themselves do not swallow much water, for they are choaked immediately by the water going into the windpipe; that we commonly call going the wrong way. The doctors and surgeons have talked a great deal to this purpose, and of the water's going into the lungs or the thorax; but unless you have more skill in anatomy than I, you would not be much edified by it. I acknowledge I never studied anatomy; but I perceive that the doctors do differ in their notions about these things. But, as to matter of fact, it is agreed to by all the witnesses for the king, that her body was lank, her belly was thin, and there was no sign of any water to be in it: they on the other side tell you, that her stays was on, and she was strait-laced, and that might occasion her belly's being so small, and hinder the water from going in. As to these three other gentlemen that came to this town at the time of the last assizes, what there is against them you have heard: they talked at their lodging at a strange rate, concerning this Mrs. Sarah Stout, saying, her business is done, and that there was an end of her courting-days, and that a friend of theirs was even with her by this time. What you can make of it, that I must leave to you; but they were very strange expressions; and you are to judge whether they were spoken in jest, as they pretend, or in earnest. There was a cord found in the room, and a bundle seen there, but I know not what to make of it. As to Mrs. Stout, there was no sign of any circle about her neck, which, as they say, must have been, if she had been strangled: some spots there were; but it is said, possibly those might be occasioned by rubbing against some piles or stakes in the river. Truly, gentlemen, these three men, by their talking, have given great cause of suspicion; but whether they, or Mr. Gentlemen, I was very much puzzled in my Cowper, are guilty or no, that you are to deterthoughts, and was at a loss to find out what in- mine. I am sensible I have omitted many ducement there could be to draw in Mr. Cow-things; but I am a little faint, and cannot reper, or these three other gentlemen, to commit such a horrid, barbarous murder. And on the other hand, I could not imagine what there should be to induce this gentlewoman, a person of a plentiful fortune, and a very sober good reputation, to destroy herself. Now, gentlemen, I must confess, the evidence that the defendants have given by these letters, if you believe them to be this gentlewoman's hand-writing, do seem to fortify all that Mr. Cowper's witnesses have said, concerning her being melancholy: It might be a love distraction, and she might have been a virtuous woman for all that; for it might be a distemper which came upon her, and turned her brains, and discomposed her mind; and then no wonder at her writing thus, in a manner different from the rest of the actions of her life. Gentlemen, you are to consider and weigh the evidence, and I will not trouble you any more about that matter. peat any more of the evidence. 1 Jury. We have taken minutes, my lord. Baron Hatsell. Well then, gentlemen, go together, and consider your evidence; and I pray God direct you in giving your verdict. [Then one was sworn to keep the jury, and Cl. of Arr. Who shall say for you? Cl. of Arr. Spencer Cowper, hold up thy hand. (Which he did.) Look upon the prisoner. How say you? Is he guilty of the felony and murder whereof he stands indicted, or not guilty?—Foreman. Not guilty. In like manner the jury did give their verdict, that John Marson, Ellis Stephens, and William Rogers were Not guilty. The CASE of SPENCER COWPER, esq. JOHN MARSON, ELLIS STEPHENS, and WILLIAM ROGERS, gentlemen.* [Published by spotted reputations; the last an utter stranger to Mr. Cowper; when at once they were accused of being together, with the basest and most execrable crime that the greatest villain in the world is capable of committing. Nay, in one respect, they were accused of doing what the most hardened in wickedness never did; that is to say, of having contracted the guilt, and run the imminent hazard of murder, without any temptation or provocation to it, or other cause whatsoever. For it has pleased the Providence of God to fence their innocence with such circumstances, that their very enemies and prosecutors (though to make their calumny to gain credit in the world, it was necessary they should assign some cause; and therefore they made it be reported, that it was done for the sake of gain to Mr. Cowper) never once had the impudence at the trial so much as to suggest the same, or any other cause, though often put in mind of it: nor can they yet, with all their malice, invent, much less prove, the least ground or reason that could incite them, or any of them, to the committing a sin so unnatural in itself, and so generally detested and punished, as well in this world as that to come. taining observations and opinions of the posture and manner in which the deceased's body was found, and what appeared on view thereof, five weeks after it had been buried by the prosecutors, and used before as they pleased) Mr. Cowper and Mr. Marson were committed, and the other two still continued upon bail. It is remarkable, that in procuring these informations and certificates, and in the whole conduct of the process (so far as carried on in the country), the prosecutors applied themselves at Hertford to those very persons, and those only, who they knew were professed enemies to Mr. Cowper's relations, upon account of controversies arising at elections, and otherwise. Mr. Marson, on his Habeas Corpus, was afterwards admitted to bail: but Mr. Cowper appearing in the King's-bench, on the like writ, the court was equally divided as to his being bailed, and consequently he was re And all this without any proof that a murder was committed by any one; it being the verdict of the coroner's inquest, fairly impannelled (on the fresh view of the body, on consulting two surgeons and a midwife, who then had the view likewise, and a full examination, which lasted near six hours), that the deceased drown-manded to prison. ed herself, being non compos mentis:' and it is humbly presumed, that all unprejudiced persons who heard that matter fully canvassed at the trial, on the entire circumstances of the case, were convinced there was no ground to believe the contrary. So that nothing but the zeal of some Quakers for the reputation of their sect, to clear it from being liable to the same infirmities the rest of the world are, assisted by the heat of faction, which is in most boroughs, could ever have stirred up a prosecution, and have made so much noise in the world, with it, out of such matter. Next, as to Particulars; Mr. Cowper, the day on which the deceased's body was found, was examined, among many others, before the coroner's inquest; and which is very remarkable, did then freely give an exact and full account of every the least circumstance of fact that has been at any time since proved, or pretended to be proved against him, throughout the whole prosecution. When the circuit was ended (for this accident happened while the assizes were holding at Hertford), which unhappily drew these gentlemen to that town, about a month after the sitting of the said coroner's inquest, the said four gentlemen were severally sent for, and readily came to the lord chief justice Holt, and were examined; and what they then informed the chief justice of, on such sudden and several examinations, has not been falsified or contradicted in the least, but on the contrary was constantly adhered to, and at last proved and made good at their trial. That after their said first examination they were dismissed without bail, and thereby bad an opportunity of flying; as undoubtedly they would have done if conscious of any guilt. Then they were sent for a second time and examined, and admitted to bail; and afterwards (the prosecutors having in the mean time collected several informations and certificates, con There he lay all Trinity term, 1699, and part of the long vacation, for the space of two. months, till the assizes at Hertford drew near; and then, upon enquiring at the crown office, not hearing that any writ was sued out for his removal, in order to his trial at Hertford, be caused a writ to be issued out for that purpose, fearing his enemies designed to keep him in gaol, or at least to continue the slander and prosecution as long as they could: The prosecutors understanding this, sued out the like writ at their instance: and Mr. Cowper was removed on that writ, lest going on his own writ should have shewn too great a confidence in his innocence, which was not to be endured. These few steps of the proceeding, out of many of the like nature (which are omitted to avoid length) may serve to shew that the prosecution was far from being a faint one, but was industrious and artificial to the last degree, and was (unluckily for the four gentlemen concerned) assisted by a circumstance not material to the justice of their cause, but notoriously true: that an election interest was thought in great measure to depend upon carrying on the accusation: which was the harder upon the four gentlemen, for that none of them were at all concerned in that controversy, and three of them not so much as in a wish one way or other. Notwithstanding this unhappy juncture, on their trial their innocence was so clear, that they were acquitted, to the satisfaction of all indifferent persons there present. After the trial, which was at the summer assizes, in the year 1699, their prosecutors, that they might be further vexatious, and keep up the talk against these four gentlemen (though they had nothing to object to the fairness of the trial, nor any defect in their preparations towards it), immediately sought out for an heir male to bring in an appeal, to try them again, and put them to fresh charges, and keep them longer under the suspicion of so great an infamy on the very same evidence, without any pretence of the least addition to it. In the same long vacation, 1699, they found out the infant, Henry Stout, (whose name was afterwards made use of for bringing the appeal) and might have sued out the writ of appeal either before the then next Michaelmas term, or in it, in the vacation following, or in Hilary term after; but their end was purely malicious to crush the accused with the calumny; and therefore to keep up the same as long as possible, the writ was not sealed till the very last seal within the year after the deceased drowned herself, and not above three or four days before the end of that year (the time limited by the law for bringing such writ), and then too with out the consent, nay without the privity or knowledge either of the plaintiff himself, or of his mother, (his guardian by nurture) without whose approbation the writ, by law, should not have been sued out, nor an infant engaged in such a prosecution for blood, which after a fair acquittal is adjudged innocent. terest, to let Mary Stout the petitioner have the proying the infant's pedigree in an appeal, which was his title to the lands in Mary Stout's possession,) went with an, uncle and aunt of the infant, and demanded the writ of the sheriff, tendering him his fee for the return thereof, which he (not then knowing of any guardian assigned) delivered to them; and though it should be admitted, that the sheriff in so doing did not strictly pursue the mandate of the writ, which requires a return at the day in court; yet the same mandate is in most original writs, and notwithstanding the sheriff never scruples to deliver the party his own writ, with the return. And in this case the plaintiff and his mother, and two of his nearest relations, demanding the writ, and the sheriff having no notice of any other guardian, it seems as excusable in the sheriff, as if a plaintiff of full age had come for his own writ: but it is admitted the court of King's-bench was of opinion, that the sheriffin strictness is to return his writ at the day and place mentioned in the return; and for not doing so, the sheriff was fined and paid two hundred marks. About a month after the said time limited by Jaw for the bringing the said writ was passed, (after several letters had been sent to the same The sheriff, before the said fine, was, by orperson, which made no mention of the appeal) ader of the King's-bench, examined very strict. letter was sent either from some of the prosecu-ly on interrogatories in writing, tending, among tors, or by their order, to an aunt of the infant, other things, to discover how far the appellees desiring the child might be sent up to sue an were concerned in procuring the writ from the appeal; which the said aunt said she read to sheriff; to which the sheriff answered on oath the mother, and was the first notice pretended fully, in writing, and very truly denied all corto be given; but the aunt being asked (when respondence with the appellees, or any on their this matter was examined before the lord behalf, touching the delivery of the said writ, keeper) if she then knew the meaning of the all reward, or promise, or security; and, in word Appeal? she owned she then did not; short, that he never knew of the appellants and and the mother, to whom the letter was read, the other persons coming to him, nor any ways affirmed before the lord keeper, she did not had heard thereof, till he saw them: and then then know what it meant, it not being explained delivered the writ and return to them, as bein the letter; but that she imagined it was lieving it fair and lawful so to do; and for no some proceeding in order to put her child into other reason whatsoever. possession of the deceased's estate, or some part thereof, which the said Mary Stout (to induce the mother to part with her child, and help the said Mary Stont to prove his pedigree) had before fraudulently caused to be insinuated to her. Notwithstanding the petitioner preferred ber petition to the now lord-keeper (by advice of her counsel) to grant her a new writ of appeal in the same form, as having sufficient autho rity so to do: and the said infant, the appellant, and his mother, preferred another petition And thus the appellant or his mother (who to the said lord-keeper, disowning the former only could legally do it) were so far from bav-writ, as sued forth without their consent; that ing sued out this writ within the year and day, that they never heard of it till a month after, and then only as aforesaid; so that the said writ was unlawfully sued out. they never knowingly approved thereof, and desiring that no new writ might issue in the infant's name: and the lord-keeper, being assisted by the master of the rolls, the late lord As soon as the mother and the infant (the chief justice of the Common Pleas, the lord plaintiff) came to understand what had been chief baron, and Mr. justice Powell, one of the doing, and that nothing was done towards let-judges of the Common Pleas, the appellant and ting the child have any part of the estate, but only to prosecute a suit of revenge after an acquittal, against gentlemen of good characters, and where no murder at all had been proved; they declared their utter dislike of the proceeding, and, without so much as treating with any of the said four persons prosecuted, or with any employed by them (purely from an abhorrence of the action, and their resentment of the cheat put upon them, and the advice of their friends, as contrary to good conscience, and their in his mother appeared, and owned their said pe tition; and on a full hearing on both the said petitions, and counsel on both sides, the said lord-keeper, master of the rolls, lord chief justice, lord chief baron, and judge Powell, were all of opinion unanimously. 1. That the Chancery had power to relieve in such case, and renew the writ, if it were just so to do. 2. But, that in this case it was not just or reasonable. . The reasons then, and yet, insisted on to maintain the latter of these points, were these: 1. Because the appellant infant, or his mother, guardian by nurture, had no notice that the writ was sued out, till above a month after the year and day past; and consequently the writ was never well sued out: it being in no body's power, by law, but the appellant's, to sue out such writ; and in case of infancy, as well as in the case of an appellant of full age, the writ is sued out in the person of the appellant, and should be done by the consent of his next friends; and no guardian assigned hath any thing to do therewith till the writ be pending. 2. Because it appeared, that as soon as ever the appellant and his mother knew what was doing, they renounced the said writ, and, to prevent prosecuting the same, went and withdrew it from the sheriff, together with an uncle and aunt of the infant. aunt of the plaintiff, appeared to justify that petition; and the woman avowed, that when she parted with her son, to sue the appeal, she thought that it was in order to obtain the deceased's estate, as the petitioner had fraudulently induced her to believe. 8. The appellant and his mother insisted, that the infant being heir at law to the deceased, and so entitled to her estate unless some way diverted by will or settlement (which the petitioner would never satisfy them in,) and the petitioner, with her son John Stout, being in possession of that estate, they thought it very improper the petitioner should have the proving the plaintiff's pedigree in an appeal, which was his title to an estate the petitioner held from him; for recovery whereof the infant and his mother, as guardian, preferred their bill in Chancery; which suit is still depending. These Reasons were enforced by several considerations, shewing, that this writ of appeal, of all others, ought not to be favoured: 1. Because sued out clandestinely and fraudulently, as aforesaid, by one who had no power. 3. Because the appellees were none of them in the least privy to this transaction, nor did the petition pretend to prove or alledge they were: But on the contrary, the sheriff, having been examined on the strictest interrogatories that 2. Because deferred two whole terms after could be framed, had, on his oath, acquitted all the acquittal on the judgment, and not taken out the appellees from having the least to do in that till the last seal, about four days within the matter, but that he did it as conceiving it law-year; which shews they did not design justice, ful and usual to deliver the plaintiff in any ac- but to spin out a scandal as long as they could, tion his own writ; and not knowing at that maliciously and vexatiously. time that any guardian was assigned to prosecute the same. 4. It is a maxim in law, that what is done amongst others ought not to hurt a third person; and as the appellees would have been deJayed and kept under calumny by this means, without their fault; so no security could be given them that the new writ should be literally the same with the former, as it ought to be; and no writ being now legally to be prosecuted against them, they ought not to be deprived of the benefit and protection of the law, without any act or default in them so much as pretended or assigned by the petition. 5. The infant by law plaintiff in appeal, has, notwithstanding his guardian, such power over the suit, that three cases were cited wherein the infant was by the court permitted to be nonsuited, without and against the consent of the guardian assigned to prosecute the same; and no instance is to be found, wherever an infant was denied so to be nonsuited. 6. If an infant may desist from prosecuting a writ depending, without consent of his guardian assigned, it is much more unreasonable such guardian assigned should force the plaintiff to have or sue out such writ, especially to be restored to it whether he will or no, in an extraordinary manner; which reason is enforced in this their unprecedented applying to the legislative power in this matter. 7. To make good the last reason, a petition was preferred to the lord-keeper by the plaintiff and his mother, against having the writ, and disowning their knowledge of the effect of the former writ; and both, with an uncle and 3. An acquittal on indictment, was a bar to an appeal at the common law; and though that bar be taken away, stat. H. 7. (which let in the indictment within the year and day) lest persons should procure themselves to be acquitted on indictments by faint prosecutions; yet, since this prosecution was far from faint, the appellees in this case are within the reason and equity of that plea; and the rather, for that the petitioner, who would prosecute this appeal, was the principal prosecutor of the indictment, and did it with all imaginable industry, assisted by the united interest of the Quakers, and the prejudice of a party in the town of Hertford, disobliged on the score of elections. 4. Appeals have not been favoured since the stat. H. 7, except in cases of conviction, and pardon obtained by surprize, or after some clear or fresh discovery by additional evidence; which neither is, nor can be pretended. THE CASE OF MRS. MARY STOUT, WIDOW. In March, 1699, being within the space of a year after the supposed murder of Mrs. Sarah Stout, a writ of appeal was sued out of the high court of Chancery, against Spencer Cow. per, esq. John Marson, Ellis Stevens, and William Rogers, gentlemen, in order for the trial of them, at the suit of one Henry Stout, heir at law to the deceased, and the appellant named in the writ of appeal, who at the time of saing out such writ was about the age of ten years. Mrs. Stout, the mother of the deceased, after such appeal was sued out, caused the same to be delivered to one Mr. Bostock Toller, the under-sheriff for the county of Hertford, in order for his apprehending of the appellees mentioned in the said writ. And she fearing lest he would be either remiss or unmindful in the due execution thereof, some short time after she sent a neighbour of hers to Mr. Toller, to know what he had done, or would do, with the writ? Whether he had executed the same, or whether he would return the parties were not to be found? Which message was duly carried, with a particular account, that Mrs. Mary Stout, the mother of the deceased, was the person that sent the same. To which Mr. Toller returned this answer, Mrs. Stout is a very busy, uneasy woman; but however, when the writ is out, I will make such return thereof as 'the law directs.' admitted guardian to the appellant) he delivered up the writ into the infant's hand. Upon which account given by Mr. Toller, the court of King's-bench ordered him to be examined upon interrogatories, touching the delivery of the writ; and accordingly Mrs. Stout the guardian prepared the same, but could not without considerable difficulty get him examined (being forced to be at the charge of two or three orders of court, for that purpose, before he came). At last his examination was taken, in and by which he owns the receipt of the writ of appeal; and that he was informed, that Mrs. Mary Stout, the mother of the deceased, prosecuted the said writ; that she sent the same to him; and that the infant, the appellant, was a perfect stranger to him, when he delivered it into his hands: but then, to extepuate the matter on his own behalf, the reasons he alledges in his examination for such his delivery, are, that the appellant came with the mother, uncle, aunt, and one Mr. Woodford, an old acquaintance of his, for the writ; and that Mr. Woodford informed him of the reality of the appellant, and his relations; and delivered him a note under the hand of William Cowper, esq. purporting the same, that the infant was the plaintiff in the appeal; that one of the women was his mother, and that the other man and woman were his uncle and aunt; which, Upon such attendance of Mrs. Stout, Mr. together with the ready answers they gave to Toller was frequently called, pending the whole such questions as Mr. Toller asked them, intime the court sate, (the writ being then return-duced him to believe them to be the real parable) to make a return of the writ: but he made default, and instead thereof Mr. Marson, one of the appellees, appeared in court, and prayed either to be arraigned or discharged; though the writ was not then, or ever since, seen or returned in court: so that such Mr. Marson's motion appearing only to be a shew, or bravado, no damage or advantage being to be sustained or gained to him thereby, the same was rejected. Mrs. Stout having received such an answer, and expecting to have a return of the writ, ac cording to Mr. Toller's promise, on the 13th of April following, was, in order thereto, and for the further designed prosecution of the matter, duly admitted guardian to the appellant; and as such, on the 15th of the same month of April, being the first day of the then Easterterm, appeared personally in the court of King's-bench, in order to arraign the appellees, in case the under-sheriff should have returned them taken. Upon the second day of the same term, the court of King's-bench was moved on the behalf of Mrs. Stout, that a short day might be appointed peremptorily for Mr. Toller to make bis return. But then (though Mr. Marson knew of the writ of appeal's coming to Mr. Toller's hand, as appears by his praying an arraignment but the day before) it was suggested in court, that no writ of appeal was ever left with Mr. Toller against the appellees: and upon such suggestion, Mrs. Stout then lost the benefit of her motion, and was forced the next day to get an affidavit of the delivery of the writ, which she accordingly did; and thereupon she moving again for a peremptory return, then the under sheriff's receipt of the writ of appeal was granted, and thereupon a rule of court obtained to compel him to appear, and make a return of the writ; which rule was served, and thereupou Mr. Toller soon after attended, and by affidavit informed the court, that upon the 16th day of the same month of April (which was a day after the return of the writ, and three days after Mrs. Mary Stout was ties; as in his examination he sets forth. Mr. Toller says further, That on the 26th of the same month of April he desired the infant, his mother, uncle, and aunt, to deliver him back the writ; but they declared, that the infant with advice had burnt the same. Mr. Toller in his examination gives this account; That some short time before his receipt of the writ, he received a letter from Mr. Will. Cowper, to know whether any writ of appeal was come to his hands against Mr. Spencer Cowper; to which he answered there was none: that some short time after such writ was come to his hands, he received another letter from Mr. William Cowper, to the same effect as the former; to which Mr. Toller answered there was; and sent him the contents of the said writ: that after such writ came to his hands, Mr. Spencer Cowper sent him a letter, to know whether he had received any writ against him; to which Mr. Toller informed him he had. So that by Mr. Toller's own examination a perfect correspondence is owned; and an intelligence from time to time, and from one party to another, is given. That upon the last day of the said term, Mr. Toller's examination was reported to the court of King's-bench; who, upon hearing the same, were of opinion, that he was guilty of an high misdemeanour, and was in contempt of that court; and thereupon was committed to the marshal, and fined 200 marks. That Mrs. Stout having received no satisfaction for the blood of her daughter, by the 8 |