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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A63196	The tryal of Spencer Cowper, Esq, John Marson, Ellis Stevens, and William Rogers, gent. upon an indictment for the murther of Mrs. Sarah Stout, a Quaker before Mr. Baron Hatsell, at Hertford assizes, July 18, 1699 : of which they were acquitted : with the opinions of the eminent physicians and chyrurgeons on both sides, concerning drowned bodies, delivered in the tryal and the several letters produced in court.	Cowper, Spencer, 1669-1728, defendant.; Marson, John, defendant.; Stevens, Ellis, defendant.; Rogers, William, Gent, defendant.	1699 (1699)	Wing T2224; ESTC R18301	87,512	48

I came to my Lodging by the same Clock which it was not so that I think this matter as to the time is very clear My Lord to prove the time it requires to go from Mrs. Stouts to the place where she drown'd her self and to return to the Glove I desire Sir William Ashurst may be called Sir William Ashurst My Lord I can't say I walk'd as fast as I could but I went with a Gentleman I see here to satisfie my self about the probability of this matter I walk'd as People usually do and I found it took up half an Hour and a Minute when I walk'd with that Gentleman Mr. B. Hatsell Who was with you Sir Sir William Ashurst Mr. Thompson was with me the time I mention I walk'd it before with Sir Thomas Lane Mr. Thompson My Lord indeed it will take a compleat half Hour Mr. Cowper I desire Sir Thomas Lane may give you an account of the distance between one place and the other Sir Tho. Lane Sir William Ashurst and I did walk to the place mentioned and we were careful to take notice of the time and it took up about three quarters of an Hour according to my observation and we did not stay at all by the way except just to look upon the Hospital Mr. Cowper Now my Lord Mary Kingitt and Geo. Man the Servants at the Glove are come Pray Mrs. Kingitt do you remember my coming into the Glove and Dolphin M. Kingitt Yes Mr. Cowper How long did I stay there M. Kingitt About a quarter of an Hour Mr. Cowper What was my business there M. Kingitt You came and enquir'd what you ow'd Mr. B. Hatsell What a Clock was it then M. Kingitt I thought it was about Eleven our t'other Maid told it Eleven Mr. Iones How came you to take notice of the time M. Kingitt She heard the Clock go Eleven but I did not Mr. Cowper Was there any dispute about the Account M. Kingitt You ask'd the Hostler how that came to stand in the Book concerning the Horse for you told him you thought you had paid some part of it and he told you you had not Mr. Cowper My Lord with your Lordships favour I would ask George Man a question to the same point Do you remember my coming into the Glove and Dolphin G. Man Yes Mr. Cowper How long did I stay there G. Man You staid about a quarter of an hour as near as I can guess Mr. Cowper I will now call a Witness to prove that this Maid Sarah Walker is not so cautious and careful how she Swears as I think she ought to be Call Mrs. Mince Mr. Bar. Hatsell Pray wherein has Sarah Walker said any thing that is false Mr. Cowper In this I ask'd her when she gave Evidence Whether she went out to see for her Mistress all that Night and whether her Mistress did not use to stay our a Nights and whether she her self had not used to say so If your Lordship pleases to remember she said no. Pray Mrs. Mince what have you heard Mrs. Stout's Maid say concerning her Mistress particularly as to her staying out all Night Mrs. Mince She hath said That her Mistress did not love to keep company with Quakers and that she paid for her own board and her Maids and that when she entertained any body it was at her own charge And she hath said that Mrs. Stout us'd to ask who is with you Child and she would not tell her and that she did entertain her Friends in the Summer House now and then with a Bottle of Wine And when her Mother ask'd who was there her Mistress would say bring it in here I suppose there is none but Friends and after the company was gone she us'd to make her Mother believe that she went to Bed but she us'd to go out and take the Key with her and sometimes she would go out at the Window and she said particularly one time she went out at the Garden Window when the Garden door was lock'●… and that she bid her not sit up for her for she would come in at any time Mr. B. Hatsell Did ever Sarah Walker tell you that Mrs. Stout had staid out all Night Mrs. Mince She hath said she could not tell what time she came in for she went to Bed Mr. Cowper Now if your Lordship please I will prove to you if it may be thought material that Gurrey at whose House these Gentlemen lodged should say That if I had visited Mrs. Stout none of all this had been upon so little an omission it seems did this prosecution depend to which I give this Answer my Lord I never did once go to visit her in my Life she knows it Now for a Man officiously to make a new visit in the time of the Assizes one engaged in business as I was and especially upon so Melancholly an occasion I say for me to go officiously to see a Woman I never had the least knowledge of would have been thought more strange and justly might have been so than the omission of that ceremony For my part I cannot conceive what Mr. Gurrey could mean this being the Case by saying that if I had visited Mrs. Stout nothing of this had happened Mr. B. Hatsell Mr. Cowper he is not the Prosecutor I think it is no matter what he said Mr. Cowper I take it my Lord with humble submission it is material as he is a principal Witness against these Gentlemen and the rather for that he now pretends that what he did was out of Conscience My Lord I have only one thing more to say I know not whether it will be requisite for me or no to give some account of my self Sir William Ashurst if you please Sir William Ashurst My Lord if I had not had a good opinion of this Gentleman I had not come on purpose to hear this Cause which has made so great a noise all England over Mr. B. Hatsell But what do you say as to Mr. Cowpers Reputation for which you are called Sir W. Ashurst I always thought Mr. Cowper to be a Gentleman of singular Humanity and Inregrity he is an Officer in London and as to his management of his Office I think no Man ever performed it better or has a better reputation in the place where he lives Sir Tho. Lane My Lord I came hither on purpose to own this Gentleman and indeed he deserves to be owned by his Friends and those that know him his Character is altogether untainted with us he has gained a good Reputation in the business wherein he is concerned he has behaved himself in his Office which he holds of the City of London very honestly and well I never knew him discover any ill nature in his temper and I think he cannot be suspected of this or any other act of Barbarity Mr. Cowper My Lord in the next place I would call Mr. Cox who has the honour to serve in Parliament for

THE TRYAL OF Spencer Cowper Esq Iohn Marson Ellis Stevens and William Rogers Gent. Upon an Indictment for the Murther of Mrs SARAH STOUT a Quaker Before Mr Baron Hatsell at Hertford Assizes Iuly 18. 1699. Of which they were Acquitted With the Opinions of the Eminent Physicians and Chyrurgeons on both sides concerning Drowned Bodies delivered in the Tryal AND The several Letters produced in Court LONDON Printed for Isaac Cleave in Chancery-lane Matt. Wotton in Fleetstreet and Iohn Bullord 1699. I Do appoint Isaac Cleave Matthew Wotton and Iohn Bullord to Print the Tryal of Spencer Cowper Iohn Marson Ellis Stevens and William Rogers And that no other person presume to Print the same Hen. Hatsell The Tryal of Spencer Cowper Esq c. Die Mercurii 16 Iulii 1699. Proclamation was made for all persons concerned to attend Cl. of Arr. YOu good men that are empanell'd to enquire c. answer to your names and save your Fines Then Ellis Stephens William Rogers and Iohn Marson being upon Bail Proclamation was made for them to attend which they accordingly did and Mr Cowper was brought into Court by the Under-Sheriff Cl. of Arr. Spencer Cowper hold up thy hand which he did Iohn Marson hold up thy hand which he did Ellis Stevens hold up thy hand which he did William Rogers hold up thy hand which he did You stand Indicted by the names of Spencer Cowper late of the Parish of St Iohns in the Town of Hertford in the County of Hertford Esq Iohn Marson late of the Parish aforesaid in the County aforesaid Gent. Ellis Stevens late of the Parish aforesaid in the County aforesaid Gent. and VVilliam Rogers late of the Parish aforesaid in the County aforesaid Gent. For that you not having God before your eyes but being moved and seduced by the instigation of the Devil on the thirteenth day of March in the eleventh year of the Reign of his present Majesty by force and arms c. at the Parish aforesaid in the County aforesaid in and upon one Sarah Stout Spinster in the peace of God and our Soveraign Lord the King then and there being violently feloniously voluntarily and of your malice aforethought did make an assault and that you the aforesaid Spencer Cowper Iohn Marson Ellis Stevens and VVilliam Rogers a certain Rope of no value about the neck of the said Sarah then and there feloniously voluntarily and of your malice aforethought did put place fix and bind and the neck and throat of the said Sarah then and there with the hands of you the said Spencer Cowper Iohn Marson Ellis Stevens and William Rogers feloniously voluntarily and of your malice aforethought did hold squeeze and gripe And that you the said Spencer Cowper Iohn Marson Ellis Stevens and VVilliam Rogers with the aforesaid Rope by you the said Spencer Cowper Iohn Marson Ellis Stevens and VVilliam Rogers then as aforesaid about the neck of the aforesaid Sarah Stout put placed fixed bound and by the squeezing and griping of the neck and throat of the said Sarah with the hands of you the said Spencer Cowper Iohn Marson Ellis Stevens and William Rogers as aforesaid the said Sarah Stout then and there by force and arms c. feloniously voluntarily and of your malice aforethought did choak and strangle by reason of which choaking and strangling of her the said Sarah Stout by you the aforesaid Spencer Cowper Iohn Marson Ellis Stevens and VVilliam Rogers with the said Rope about the neck of the said Sarah Stout as aforesaid placed fixed and bound and by the squeezing and griping of the neck and throat of the said Sarah with the hands of you the said Spencer Cowper Iohn Marson Ellis Stevens and VVilliam Rogers as aforesaid the said Sarah then and there instantly dyed And so you the said Spencer Cowper Iohn Marson Ellis Stevens and VVilliam Rogers the said Sarah Stout on the thirteenth day of March in the year aforesaid in the Parish aforesaid in the County aforesaid in manner and form aforesaid feloniously voluntarily and of your malice aforethought did kill and murder and the said Sarah Stout as aforesaid by you the said Spencer Cowper Iohn Marson Ellis Stevens and VVilliam Rogers feloniously voluntarily and out of your malice aforethought choaked and strangled into a certain River there being called the Priory River then secretly and maliciously did put and cast to conceal and hide the said Sarah Stout so murdered against the peace of our Soveraign Lord the King his Crown and Dignity c. How sayst thou Spencer Cowper art thou Guilty of the Felony and Murder whereof thou standst Indicted or Not Guilty Mr Cowper Not Guilty Cl. of Arr. Culprit How wilt thou be tried Mr Cowper By God and my Country Cl. of Arr. God send you a good deliverance Then the other three pleaded likewise Not Guilty and put themselves upon their Country in manner aforesaid Then Proclamation was made for Information Cl. of Arr. You the Prisoners at the ●…ar These men that you shall hear call'd and personally appear are to pass between our Soveraign Lord the King and you upon Trial of your several lives and deaths Therefore if you will challenge 'em or any of 'em your time to speak is as they come to the Book to be Sworn before they be Sworn Then the pannel was called over Cl. of Arr. Do you design to ioyn in your Challenges or to Challenge separately Mr Cowper If we should Challenge separately there must be so many separate Tryals and therefore to prevent the trouble of the Court I am willing there should be but one Challenge for all Cl. of Arr. Gentlemen Do you all agree to that Prisoners Yes yes Then after some Challenges as well on the part of the King as of the Prisoners there not being a full Jury of the principal Pannel Mr Cowper IF your Lordship please the Pannel is now gone through I desire they may shew some legal Cause for their Challenges Mr Iones I conceive we that are retain'd for the King are not bound to shew any Cause or the Cause is sufficient if we say they are not Good for the King and that is allow'd to be a good Cause of Challenge for what other Cause can we shew in this Case You are not to shew your Cause you Challenge peremptorily so in this Case the King does Mr Cowper My Lord I stand at the Bar with some disadvantage to encounter a Gentleman that hath no Concernment but however I do take it for Law that there must be a Cause shew'd and that Cause must be a legal one and what that Cause is they must certainly make out I do think it ought to appear that there is some relation or some notorious affection or friendship or something of that sort or otherwise it is not a legal Cause of Challenge and if there seem to be any difficulty in this particular I hope your Lordship will assign me Councel to argue it with the Kings

Councel Mr Baron Hatsell Mr Cowper you are not under such disadvantage as men usually are that stand where you now do You have been educated in the study of the Law and understand it very well I have several times seen how you have manag'd your Clients Causes to their advantage As for this matter of Challenge Mr Iones I think you should shew your Cause of Challenge tho the Law allows the Prisoner the liberty to Challenge 20 peremptorily Mr Iones I don't know in all my practice of this nature that it was ever put upon the King to shew Cause and I believe some of the Kings Councel will say they have not known it done Mr Cowper In my I Ch. Justice Hales's Pleas of the Crown p. 259. it is expressly so and in the Statute of 33 E. 1. 't is said the King shall not Challenge without Cause and that must be legal Cl. of Arr. Call Daniel Clarke Mr Baron Hatsell Mr Iones if you can say any Jury-man hath said any thing concerning this Cause and given his Verdict by way of discourse or shew'd his affection one way or other that would be good Cause of Challenge Mr Iones My Lord then we should keep you here while to morrow morning Mr Baron Hatsell If there hath been any great friendship between any Jury-man and the party it will look ill if he be insisted upon Mr Cowper My Lord I don't insist upon it but I profess I know of no Friendship only that Mr Clarke in Elections hath taken our Interest in Town I know I have a just Cause and I am ready to be tryed before your Lordship and any fair Jury of the County therefore I do not insist upon it Then the Jury sworn was as followeth Jur Evan. Lloyd Esq William Watson Iohn Prior Iohn Harrow George Holgate Iohn Stracey Thomas Parrott Sam. Wallingham Francis Cole Rich. Crouch Iohn Cock Rich. Dickinsor Mr Cowper My Lord I humbly move that I may have Pen Ink and Paper Mr Baron Hatsell Ay by all means Cl. of Arr. Hold up your hand which he did And so of the rest You of the Jury look upon the Prisoners and hearken to their charge They stand Indicted by the names of c. Prout in the Indictment mutatis mutandis Iury. My Lord we desire we may have Pen Ink and Paper Clerk of the Assize There are three of the Jury desire Pen Ink and Paper Mr Baron Hatsell Let as many have it as will Mr Iones May it please your Lordship and you Gentlemen that are sworn I am of Councel for the King in this Cause and it is upon an Indictment by which the Gentlemen at the Bar stand accus'd for one of the foulest and most wicked Crimes almost that any age can remember I believe in your County you never knew a fact of this nature For here is a young Gentlewoman of this County murder'd and strangled in the night time The thing was done in the dark therefore the Evidence cannot be so plain as otherwise might be After she was strangled and murder'd she was carried and thrown into a River to stifle the fact and to make it suppos'd that she had murder'd herself that it was ineded if it prove otherwise a double Murder and a Murder accompanied with all the Circumstances of Wickedness and Villany that I remember in all my Practice or ever read of This Fact as it was committed in the night time so it was carried very secret and it is very well we have had so much light as we have to give so much satisfaction For we have here in a manner two Tryals one to acquit the party that is dead and to satisfie the world and vindicate her reputation that she did not murder herself but was murder'd by other hands For my part I shall never as Councel in the case of Blood aggravate I will not improve or enlarge the Evidence at all it shall be only my business to set the Fact as it is and to give the Evidence and state it as it stands here in my Instructions My Lord for that purpose to lead to the Fact it will be necessary to inform you that upon Monday the 13th of March the first day of the last Assizes here Mr Cowper one of the Gentlemen at the Bar came to this Town and lighted at Mr Barefoot's house and staid there some time I suppose to dry himself the weather beingdirty but sent his Horse to Mrs Stout's the Mother of this Gentlewoman Some time after he came thither himself and din'd there and staid till 4 in the afternoon at 4 when he went away he told them he would come and lodge there that night and Sup. According to his word he came there and had the Supper he desired after Supper Mrs Stout the young Gentlewoman and he sat together till near 11 a clock At 11 a clock there was orders given to warm his Bed openly to warm his Bed in his hearing The Maid of the house Gentlemen upon this went up stairs to warm his Bed expecting the Gentleman would have come up and followed her before she had done but it seems while she was warming of the Bed she heard the door clap together and the nature of that door is such that it makes a great noise at the clapping of it to that any body in the House may be sensible of any ones going out The Maid upon this was concern'd and wonder'd at the meaning of it he promising to lye there that night she came down but there was neither Mr Cowper nor Mrs Stout so that we suppose and for all that we can find and learn they must go out together After their going out the Maid and Mother came into the Room and the young Gentlewoman not returning nor Mr Cowper they sat up all night in the house expecting what time the young Gentlewoman would return The next morning after they had sat up all night the first news of this Lady was that she lay floating and swimming in water by the Mill-Damm Upon that there was several persons call'd for it was a surprize how this should come to pass There she lay floating with her Petticoats and Apron but her Night-rail and Morning-gown were off and one of them not found till some time after and the Maid will give you an account how it came to be found This made a great noise in the Country for it was very extraordinary it hapning that from the time the Maid left Mr Cowper and this young Gentlewoman together she was not seen or heard of till next morning when she was found in this condition with her Eyes broad open floating upon the water When her Body came to be view'd it was very much wonder'd at For in the first place it is contrary to nature that any persons that drown themselves should float upon the water We have sufficient Evidence that it is a thing that never was if persons come alive into the water

driven into the Ground cross the River to prevent Weeds and Trampery from running into the Mill stand as the Witnesses have already said about a Foot distance from one another and are set with their Feet from the Mill and their Heads inclining towards the Mill with the Stream Now my Lord every one knows that though a drowned Body will at first sink yet it is buoyant and does not go down-right and rest in one place like Lead for a humane Body is seldom or never in a Stream found to lie where it was drowned a Body drowned at Chelsea has been often found by Fishermen at London and that before it came to float above Water Now if a Body is so buoyant as that it is driven down by the impellant force of the Current though it do not float above Water it seems a Consequence that when it comes to be stopp'd and resisted by the Stakes which lie with their Heads downwards inclining with the Stream the Stream bearing the Body against the Stakes must needs ●…ise it upwards to find another Passage if possible when the Ordinary and Natural is obstructed I have seen I remember that where Weeds have been driven down a River and have been rooled along at the bottom when they have come down to a Board or Stakes of a Wyer or Turnpike they have been by the force of the Water raised up against those Boards or Stakes and forc'd over them though without such Obstruction they had undoubtedly continued to rool along under the Water I don't know of any other Symptom they pretend too of her not being drowned from any thing observed of her in the Water Then as to the flatness of her Belly when she was put into her Coffin I shall shew it is a common and natural Accident sometimes drowned Bodies are swelled more sometimes less sometimes not at all I think it hardly deserves a Physician to prove that a Body may be drowned with very little Water that a Man may be drowned by Strangling or Suffocation caused by a little Water in the Lungs without any great quantity or Water received in the Body is a certain and establish'd Truth for I am told that when Respiration ceases the Party dies and can receive no more Water after that so that nothing i●… to be inferred from a Body's having more or less Water found in it especially if your Lordship will give me leave to observe this distinction where a Body is voluntarily drowned and where it is drowned by Accident for People that fall in by Accident do struggle and strive as long as they can every time they rise they drink some Water into the Stomach to prevent its passing into the Lungs and are drowned no sooner than needs must but Persons that voluntarily drown themselves to be sure desperately plunge into the Water to dispatch a miserable Life as soon as they can and so that little quantity in the Lungs which causes Death may be the sooner taken in after which no more is received And I hope by Physicians it will appear there is good Ground for this Difference The next is the Evidence that the Chvrurgeons have given on the other part relating to the taking this Gentlewoman out of her Grave after she had been buried six Weeks whether this ought to have been given in Evidence for the Reasons I hinted at in a Criminal Case I submit to your Lordship But as it is I have no reason to apprehend it being able to make appear that the Gentlemen who spoke to this Point have delivered themselves in that manner either out of extreme Malice or a most profound Ignorance this will be so very plain upon my Evidence that I must take the liberty to impute one or both of those Causes to the Gentlemen that have argued from their Observations upon that Matter And now if your Lordship will but please to consider the Circumstances under which they would accuse me of this horrid Action I don t think they will pretend to say that in the whole course of my Life I have been guilty of any mean or indirect Action and I will put it upon the worst Enemy I have in the World to say it Now for a Man in the Condition I was in of some Fortune in Possession related to a better in a good Employment thriving in my Profession living within my Income never in Debt I may truly say not five Pounds at any one time these eight Years past having no possibility of making any Advantage by her Death void of all Malice and as appears by her own Evidence in perfect Amity and Friendship with this Gentlewoman to be guilty of the murthering her to begin at the top of all Baseness and Wickedness certainly is incredible My Lord in this Prosecution my Enemies seeing the necessity of Assigning some Cause have been so Malicious to suggest before though not now when I have this Opportunity of Vindicating my self publickly that I have been concerned in the Receipt of Money 's for this Gentlewoman had her Securities by me and sometimes that I had been her Guardian or her Trustee and I know not what I now see the Contrivers and Promoters of that Scandal and they know it to be Base False and Malicious I never was concerned in Interest with her directly or indirectly and so I told them when I was before my Lord Chief Justice 't is true it was then just suggested by the Prosecutors I then denied it and I deny it still I thank God I have not been used nor have I needed to deny the Truth My Lord you find the Prosecutors have nothing to say to me upon this Head after all the Slanders and Stories they have Published against me of my having Money in my Hands which belonged to the Deceased But though they do not stir it I will and and give your Lordship a full Account of all that ever was in that Matter When I lo'g dat Hartford some time since she desired me to recommend to her a Security for ●…oo l. if it came in my way my Lord when I came to Town I understood that one Mrs. Puller a Client of mine had a Mortgage formerly made to her by one Mr. Loftus of Lambeth in Surrey for the like Summ and that she was willing to have in her Money I wrote to this Gentlewoman the Deceased to acquaint her of the Security she thereupon did send up 200 l. and some odd Pounds for Interest the Account of which I produced to my Lord Chief Justice this Money was sent to me by Mr. Cramfield as I have been informed and by him given to Mr. Toller's Clark and by him brought publickly to me my Lord this Mortgage I immediately Transferr'd by Assignment Indors'd on the back of it and Mrs. Habberfield a Trustee for Mrs. Puller Signed and Sealed it and that very 200 l. and Interest due was at one and the same time paid to Mrs. Puller and by her the