Part 3

By Lord ELLENBOROUGH.—When you say that he admitted being in the room, will you, as far as you can, state the words: state what he said?—He said that he denied three particular points, two of which I have already named. The other was something that did not occur to me to be important, and which I did not take any notice of, and consequently I do not remember it. I told him that of these two points, that I have mentioned, the boy was positive, and I had no reason to doubt any thing that the boy had said, as I had never known him to tell a lie. He said that he was sorry for it, because that confirmed _ancient reports_. I told him it did so; and of course I told him that now I should believe all that I had heard heretofore; and I wished him a good morning.

Now did you see him at any time afterwards?—Not to speak to him.

By Lord ELLENBOROUGH.—You have seen him, but not spoken to him since?—I have not spoken to him since, my Lord.

By Mr. BOLLAND.—What letter was it that you had seen which you spoke to him about?—A letter dated the 6th of October, addressed to a Mrs. Hunter, I took an exact copy of it. Mr. Harmer has it.

Is that the copy? (_A paper put into the witness’s hand_.)

Mr. GURNEY.—I cannot see how this can be evidence, until they prove the original to be destroyed.

Lord ELLENBOROUGH.—This is only _a provisional_ question.

By Mr. BOLLAND.—Is that the copy?—Yes, it is an exact copy.

By Lord ELLENBOROUGH.—Did you read that copy of the letter to him?—No, my Lord, I had not the copy at that time.

By Mr. BORLAND.—What did you state to him respecting the letter?—I told him I wished to know what the three things were which he could deny, as asserted by the boy?

You don’t recollect the third point?—No.

By Lord ELLENBOROUGH.—You say it is not material?—No, my Lord.

By Mr. BOLLAND.—And you say he admitted being in the room, but denied the laying hold?—Yes.

In what terms did he admit that he was in the room?—He said, “I was in the room; but I did not lay hold of the boy.”

By LORD ELLENBOROUGH.—Did he say why he was in the room?—No, my Lord.

What did you do with the letter of the 6th of October?—I returned it to Mrs. Hunter.

From whom did you get it?—From Mrs. Hunter.

And to Mrs. Hunter you returned it?—Yes.

_Cross-examined by_ Mr. GURNEY.

You mean to say that he said distinctly to you that he was in the room?—Yes.

Did you mention to any person after you had seen Mr. Church, that he was not implicated in the affair at all?—No.—That _I_ said _he_ was not implicated?—No! I never said any such thing.

Did you give any person an account of the conversation you had with him, and accompany that account with this observation, “He is not at all implicated”?—Never.

Not to any person?—No; not to any person.

Did any person go with you to Mr. Church?—Mr. Thomas went to the door with me.

Is he a friend of your’s?—He is no friend of mine. I had only seen him at the door. It was _his_ wife and mine that wished me to make the application to Mr. Church.

Then Mr. Thomas went with you as far as the door, but did not go in with you?—No.

Do you recollect having any conversation with Mr. Thomas, in which you told him what had taken place between you and Mr. Church?—I told him briefly what had transpired; it was very short what did transpire.

And you told Mr. Thomas what had transpired at the interview with Mr. Church, when you came out?—Yes.

Then did you tell Mr. Thomas that Mr. Church admitted having been in the room?—I think I did; but I am not very positive as to that point. I know I told him that Mr. Church said that he did not lay hold of the boy.

The question I wish to put to you is this—whether Mr. Thomas did not ask you this question, “Well, is there any thing against Mr. Church, or not?”—and whether you did not answer, “No, he is not at all implicated?”—I never made any such answer to him.

Neither that, nor any thing conveying that meaning?—Never.

By LORD ELLENBOROUGH.—You never did tell him, directly or indirectly, that there was nothing to implicate Mr. Church?—No, never.

By Mr. GURNEY.—Did you either tell Mr. Thomas, or any other person that you would prosecute Mr. Church, because he had said disgraceful things of your wife?—I did; but not for this crime, but for defamation of my wife’s character.

By LORD ELLENBOROUGH.—You told Mr. Thomas that you intended to prosecute Mr. Church for defaming your wife’s character?—I don’t know that I ever told Mr. Thomas; but I believe I have said that, or words to that effect, to other persons.

By Mr. GURNEY.—Did you not tell Mr. Thomas that you were determined to prosecute Church for having said disrespectful things of your wife?—I may have told him amongst other persons.

Did you not mention that, amongst other things, on that very morning that you had the interview with Mr. Church?—No; certainly not. Some other time I might.

By LORD ELLENBOROUGH.—Was it after that morning?—Yes, my Lord, it must have been a considerable time after that.

_Re-examined by_ Mr. BOLLAND.

What did you inform him that you intended to institute a prosecution against Church for?—For defamation of my wife’s character.

LORD ELLENBOROUGH.—That I suppose is your case?

Mr. MARRYATT.—No, my Lord, I am going to call Mrs. Hunter.

Mrs. HUNTER sworn.

_Examined by_ Mr. MARRYATT.

I believe you are an attendant amongst the congregation, and a hearer of Mr. Church?—Yes.

Did he at any time write to you, early in the month of October last?—I received a letter in the beginning of the month of October, but there was no name to it.

There was no place of abode given, or any thing except the day of the month?—No.

Did you know from whom it came?—I cannot tell.

Did you put that letter into the hands of Mr. Patrick?—I gave it to Mr. Patrick’s daughter, who gave it to her father.

Was that letter returned to you again?—It was; but I took no farther notice of it.

Was that letter returned to you again?—Yes.

You had a subpœna _duces tecum_ to produce it?—I had but it is impossible to produce it.

Why is it impossible to produce it?—I will tell you why. After the letter was returned to me, I took no further notice of it. I put it into a drawer; but I know no more than his Lordship what is become of it; I looked for it on the Thursday morning before I came, but I could find no scraps of it. I was not able to find it.

Then you were wholly unable to find it?—I was.

By Lord ELLENBOROUGH.—Did you search diligently to find it?—I did, indeed, my Lord.

By Mr. MARRYATT.—Are you convinced there was no name to it?—I am.

Are you acquainted with Mr. Church’s hand writing?—I have seen his writing, and I have seen it written in a different hand: not always alike, but sometimes very different: not to say exactly two different hands, but such a difference in the same hand writing, that you would hardly think it was the same. I have seen it so different, at times, that I should not at all times think it was the same.

Upon receiving the letter in question, whose hand writing did you believe it to be, and state it to be?

Mr. GURNEY.—I submit to your Lordship, that this is not a legal question.

Lord ELLENBOROUGH.—It is not evidence of the fact: but it is a proper question to refresh her recollection, as to whether she did not receive a letter which she believed to be the hand writing of the defendant.

By Mr. MARRYATT.—Whose hand writing did you think that letter to be?—I rather think it was Mr. Church’s, but I could not be positive, as there was no name to it.

Do you now believe that letter to be Mr. Church’s writing.—I cannot say whether it was or was not. It is not in my power.

By Lord ELLENBOROUGH.—You are not asked whether it was or was not: but what your belief was then, and what it is now?—I believed at that time, I must own, that it was his hand writing, and I still believe the same.

By Mr. MARRYATT.—Did you not then believe it to be Mr. Church’s hand writing?—I did rather think it was.

Did you, or not, believe it was?—Is there any difference between _thinking_ and _believing_?

That is a phrase we sometimes use in courts of justice.

I could not be positive; but I rather think it was his hand writing.

When you opened it, did you read it as a letter coming from him?—I was very much struck with the similarity, for it had very much the appearance of his hand writing; but, as no name was subscribed at the bottom, I could not be certain. It had the appearance of his hand writing.

Is it your belief now, that it was or was not, his hand writing?—It is exactly the same as it was then.

And it is now your belief that it was his hand writing?—I cannot say I firmly believe it, because it was not signed.

You are only asked whether you so acted as if it was his hand writing?—I did not communicate it to anybody but Mr. Patrick.

Did you communicate to Mr. Patrick that you had received a letter from Mr. Church?—I did.

_Cross-examined by the_ COMMON SERJEANT.

The search which you made for this letter was not until last Thursday?—Exactly so.

For any thing you know, might it not be in your house now?—I have no reason to believe that it is, for I did not leave a drawer or place unsearched.

Lord ELLENBOROUGH.—As far as evidence can go of the loss of an original letter, to let in the copy, we have it in this case; for I asked her whether she made diligent search after the original, and she says, she has made diligent search.

Mr. Patrick _examined again by_ Mr. MARRYATT.

Were you acquainted in October last with the hand-writing of Mr. Church?—Yes.

You told us you made this copy from the letter you had from Mrs. Hunter. Was the letter from which you made this copy, and which you returned to Mrs. Hunter, in your belief, the hand-writing of Mr. Church?—It was.

Mr. MARRYATT.—Now, my Lord, I propose reading this copy of the letter in question.

The following letter was then read in evidence:—

“_October_ 6, 1816.

“DEAR MRS. HUNTER,

“My heart is already too much affected. Your letter only adds affliction to my bonds. But I forbear. I would have called on you this morning, but I was too low in mind to speak to any friend but Jesus! _There_ I am truly comfortable. Pardon me; but I make no remarks on what you have been told. I must bear it, though I am able to contradict _three things_ I would rather not. Mr. and Mrs. Patrick have always dealt kindly to me. I am only grieved that dear Mrs. P. whom I really loved, that she should try to injure me in the estimation of those who are real friends to my dear children. The thought affects me. Why hurt my poor family? But I am too much depressed to enlarge. I shall never forget their kindness. God will reward them, as he has many who have dealt well to me. But he will resent cruelty in those who have and are still trying to degrade me. Mrs. P. will live to see it. Dear Mrs. Hunter, I am grieved at heart I cannot relieve your mind. I am truly sorry to lose you as a hearer, because your soul has been blest; and you know both the plague of the heart and the value of Jesus. May he be increasingly present to you in his person, love, and grace! Farewell, my dear kind friend! The Lord Jesus will reward you for your love to me, and your kindness to mine. God is not unrighteous to forget your work of faith and labour of love. With many tears I write this. May we meet in glory, when no enemy shall distress my mind, nor sin nor death shall part us more! I need not remind my dear friend that I am a _Child_ of _Peculiar Providence_; and that _heart_ of eternal love, and that _arm_ of invincible power has protected me—has called me to himself; and for every act of straying, will correct me with _his own hand_, but will resent _every other hand_, sooner or later. This you will live to see.

“_Adieu_, _dear friend_, _accept the starting tear_, “_And the best wishes of a heart sincere_.

“Your’s, truly,

“Till we shall meet above.”

Mr. MARRYATT.—My Lord, that is the case on the part of the prosecution.

DEFENCE.

Mr. GURNEY then addressed the Jury on the part of the defendant, as follows:—

May it please your Lordship—

Gentlemen of the Jury—Gentlemen, I must agree with my Learned Friend, in entreating you to bestow your most serious attention upon this case, and in requesting you to consider (which, indeed, my Learned Friend fairly confessed you ought to bear in mind), that as the charge is heavy the proof ought to be clear; and that you will take care that your indignation against the crime shall have no influence upon your judgment respecting the person accused. That is a duty, Gentlemen, which is one of the most important, for a Juryman to attend to in this species of case, but it in one of most difficult performance; for such is, and such I trust ever will be, the feeling of abhorrence which Englishmen entertain against this detestable crime, that it is extremely difficult indeed, when a person is accused of it, to consider the case which in laid before us, in that dispassionate and unprejudiced manner, which is essential to the administration of justice. We all wish that no such occurrences could exist; and if a wish could blot them out of existence, we should be almost tempted to form that wish: but, Gentlemen, when these cases do come before us, they claim our very serious attention; and more particularly on this account, that it is a charge which, whenever made upon an individual, depends almost always upon the testimony of one witness, and where there is but one witness to make the accusation,—I mean one witness to the fact charged, so that the person accused can have no witness in his defence;—that, however innocent a man may be who is accused of this crime, provided the party is in a situation in which he cannot shew that he was fifty miles off at the time, it is quite impossible for him to have a witness to negative the fact. It must stand or fall upon the testimony of the principal witness, whose testimony, however, I need not tell you, is to be watched most scrupulously, and to be compared with the evidence of other witnesses; and if found inconsistent with the testimony of other witnesses, it is hardly then to be carried to the extent of full credence and of conviction.

Now, Gentlemen, the story which this young man has told you, is, upon his statement, a very extraordinary one, of the attack made upon him. Were any attack made upon him by Mr. Church, it would indeed be most extraordinary under the circumstances which he has stated. He represents himself to have been previously acquainted with him—that he had been one of his hearers—and yet from the hour of that acquaintance commencing, to the moment of this supposed abominable attack, that Mr. Church had never, either by word or gesture, made any indecent overture to him of any kind, signifying his intention, or had done any thing whatever to ascertain if he, the prosecutor, was ready to gratify any brutal of unnatural passion he might form. Now, it is a very extraordinary thing, that it should be supposed, that a person should get out of his own bed, and go to the bed of another, and commence the attack with the indecencies described by the witness, without any preparation of any kind whatever, without having any reason to believe, that the object of his attack would accede to his base, and unnatural purposes, with the full knowledge, (one should think,) that he was encountering certain detection and punishment, by the resistance that every man would be likely to make, to such an abominable attack; and it is, to be sure, most extraordinary to observe in what manner this is done. The young man states that he did not see the face of the person—that he felt the arm, and found that it was a shirt sleeve; but he did not feel any part of the flesh, so as to make any distinction between male und female; but he concludes that it was the shirt of a man, because the arm was covered down to the wrist. And when my Learned Friend, Mr. Marryatt, supposed that females are not covered down below the elbow, I have only to say, that I certainly always thought that females in their night clothes were covered down to their wrists. I ever understood that was the case; and therefore a person awakened out of sleep, in the fright that such a circumstance was likely to produce, and finding the arm of the person making the attack covered down to the wrist, would not, I think, be very well able to say whether it was the sleeve of a shirt or that of a woman’s bed-gown; and that is all the means of knowledge which the witness has, as far as regards feeling the person.

Now I go on to the next evidence of identity. The next is the voice of the person who, he tells us, said in a feigned female voice, “Don’t you know me, Adam? I am your mistress.” Now, recollect, Gentlemen, the voice, it is thought, is a female voice; and whether it be feigned or not, depends upon his judgment and capacity of forming an opinion at a moment when he was in the greatest alarm and agitation; because if it was a female voice, then the voice was not feigned, and it could not be Mr. Church who was in the room. Now, I don’t mean to suggest (far be it from me) that it was Mrs. Patrick; but it is rather extraordinary and somewhat remarkable, considering the industry and the acrimony with which this case has been got up against Mr. Church, that they should not have produced Mrs. Patrick as a witness, and that they should think it right to withhold from your observation the other maid servant, who slept with Adam Foreman’s sister. I think it is rather remarkable, that considering the industry with which I know this case was got up, they have not thought fit to produce that other female before you as a witness in order to say, “I was not out of my bed room that night, and I did not go into the apprentices bed room.” Now, I think, that considering that the Prosecutors must have been aware of the powerful effect of such evidence, it is most surprising that they did not call forward the other persons in the house that night as witnesses, for the purpose of shewing, by their testimony, that they remained in their beds during the whole of that night, and for the purpose of giving some colour of probability to this very extraordinary and incredible story. But, no, Gentlemen, they choose to leave the case to the testimony of a frightened young man, wakened out of his sound sleep, and who, without seeing the face of Mr. Church, ventures to swear that the feigned female voice which he heard was that of the Defendant. I think, Gentlemen, in a case in which every thing depends, not so much upon his veracity, but upon the accuracy of his judgment in the course of his observation upon circumstances, with respect to which he was very little likely to draw any very accurate conclusions, that that servant ought to have been produced here, the more especially when the young man from the Pottery, going afterwards through the house for the purpose of seeing who was there, did find the female servant’s door ajar; a circumstance not observable with respect to any other room in the house.

Now, I come to the next observation of identity; and I do think it is a most extraordinary one. There is a lamp, it seems, in the footpath of the terrace, five or six yards from the door. My Learned Friend, Mr. Bolland, inquired what sort of a lamp it was—whether it was a parish lamp, or a gas light? And he found by the answer, that it was the worst kind of lamp in the Metropolis—a parish lamp. Well, then, there is a dull parish lamp, five or six yards from the door, which gives a light through a large window—No, through a fan-light! and the person, whoever it is, opens the door to go out, and, as the door is opened the Lad sees that the person has a shirt on. Now, I beg to ask you, as men of sense and of experience in the world, whether it was possible for him to see whether that garment was a shirt, a shift, or a bed-gown—was it possible? Recollect, the light is not in the room—there is some light in the passage. The back of the person is towards him; and he is to tell you that it is Mr. Church, although he only saw his back! But then the next observation after the shirt, is as to the height of the person. Why, Gentlemen, nothing magnifies more than fright: nothing! We, all of us, have often heard the descriptions of persons in great fright. They always magnify the objects they see. If a person is robbed, the thief is a _monstrous tall man_! Why, Gentlemen, fright does magnify every object; and, therefore, we must make allowances for the situation in which this young man was placed at the time. He is disturbed in his sleep—the thing happens in a moment—and he sits up in his bed in a great fright—and he tells you it is Mr. Church, because of the height of the person he saw. Now if you can say that a person in that station is capable of distinguishing between a tall and a short person, I think it is a great deal too much in a case of this sort. But what has the person on his head? My Lord Ellenborough asked the question, _whether it was a man’s_ or woman’s night-cap? and he says, “I cannot tell whether it was a night-cap or a handkerchief.” And upon being asked the colour, he says, “I cannot tell.” And there does not seem to be light enough to distinguish whether it was white or coloured. From this circumstance, therefore, Gentlemen, you will judge what sort of light there was to distinguish objects.