Jane Austen’s aunt, Mrs. Jane Leigh Perrot, was tried at the spring assizes at Taunton on 29 March 1800 on a charge of shoplifting in Bath on 8 August 1799. After a six-hour trial, she was quickly found Not Guilty by the jury.1
There is no official or authoritative account of the trial, not even of the judge’s summing up and instructions to the jury. There was no official court reporter. Three more or less different accounts were published in London, Bath, and Taunton in the fortnight after the trial by unofficial shorthand writers who thought that the trial might be of public interest. The proceedings were entirely oral for the benefit of the jury. All the witnesses gave their evidence on oath. The judge instructed the jury that if they believed the prosecution witnesses, they should convict, but that if they did not believe them, or had any doubt, they should acquit—a clear reminder that not everything a witness says, even on oath, may be true. The accounts are sometimes obscure, inconsistent, contradictory, or just plain wrong.
While Jane Leigh Perrot was in prison in Ilchester waiting for the Taunton Assizes, she was free to send and receive letters, and her housekeeper forwarded her post from Bath. There is a selection of those letters in MacKinnon’s Grand Larceny (in chapters 5 and 7) from her friends Lady Elford and Mrs. Foley. They had both met an “old Gentleman” (MacKinnon 57),2 John Morris, KC, who had been officially asked to give his opinion on whether the prosecution of Mrs. Leigh Perrot was justified. As far as I know, these letters have been totally ignored in all discussions of the trial. They deserve close examination.
What follows is an attempt to reconstruct the truth from such unpromising materials.
Mary Smith was the proprietor of a haberdasher and milliner’s shop at no. 1, Bath Street, in Bath, from 1798 to 1807. It was a successful and profitable business both before and after the death of her husband, William Smith, in 1803. In August 1799, while she was away in Cornwall, her sister, Elizabeth Gregory, kept the shop and carried on the business on her behalf. Gregory was assisted by a shopman called Charles Filby, who had been hired by Mrs. Smith six months earlier, by a shopwoman called Miss Leeson, and by Sarah Raines, who had just been taken on as an apprentice.
On 8 August in the early afternoon Mrs. Leigh Perrot came in, bought some black lace, and went away. Sometime later, when she was walking back down the other side of Bath Street with her husband, Elizabeth Gregory dashed across and accused her of having stolen a card of white lace. A search produced the white lace, and Gregory took it back to the shop. She then sent Filby after the couple to find out their names and address.
Half an hour later Gregory and Filby went to the Town Hall to report the affair. The magistrates were elsewhere, but the accusers were received by the Town Clerk and his deputy, who took a statement from them. Gregory and Filby had not had time to take legal advice or to work out exactly what they were going to say, and they were not used to the practice of giving a statement by question and answer. They did not prepare their own statements. The officials asked questions and wrote down their answers. We do not have a copy of the resulting statement, but it turned out to be very unsatisfactory, as we shall see.
That statement was then sent to John Morris, KC, for his opinion. (This is the English practice of “taking counsel’s opinion.”) Morris had been a leading member of the Western Circuit bar and had recently retired to Bath. He had a high reputation as a sound lawyer. He took several days to study the statement and to consider his opinion.
Credibility of the witnesses
Morris’s general conclusion was unequivocal. Lady Elford’s letter of 20 January 1800 to Mrs. Leigh Perrot reported his certainty: “The Accusation must be found false by anyone who would take the trouble of considering a moment” (MacKinnon 57). On 11 February 1800, Mrs. Foley, who described Counsellor Morris as “one of your warmest defenders” (58), also reported his opinion: “if anyone will take the trouble of studying the Evidence they must discover that the evident Design has been to extort a sum of money to support the falling credit of that infamous set of fraudulent shopkeepers” (59). According to Lady Elford, he referred to Gregory and Filby as “a set of perjured Bankrupts” (57). (Filby, in fact, was an undischarged bankrupt, his second bankruptcy in two years.) Morris also supplied a motive, according to Lady Elford: “plainly a view to extort a sum of money from Mr. Leigh Perrot—there was perjury in the whole” (57).
Morris’s conclusion was based on four problems or inconsistencies in Filby’s statement: whether Filby’s back was turned, and what he could have seen at that time; why he looked in the box of white lace; why he allowed Mrs. Leigh Perrot to leave the shop if he had seen her put the lace under her cloak; how Mrs. Leigh Perrot was able physically to manipulate two cards of lace, her purse, and her change as described.
Morris’s opinion on the particular details was damning. Filby’s statement, as Morris told Lady Elford, was that “when he went into the inner shop to fold up the Lace which Mrs. P. had purchased, & to bring change for the Bank Note, he saw her put her hand into the box of Lace on the counter, take a card and hide it under her cloak3—tho’ his back was towards her, & that she took the change, saw that it was right, & put it in a morrocco pocket purse” (MacKinnon 58, italics original). Morris commented to Lady Elford: “He saw the card under her cloak—Why, when he saw this, did he think it necessary to look over the Box to see whether any Card was gone? And why did he permit her to leave the Shop, when he might have stopt her, & charged her with theft immediately? In putting her money into her purse she must have used both hands, what prevented the Card from falling?” (58).
In his opinion, obviously, a prosecution was not justified, and the magistrates would normally have followed his advice.
When Gregory and Filby finally met the mayor and the other magistrates on 14 August, however, they insisted that their depositions should be taken on oath. The significance of the oath was that in that case the magistrates would have no discretion but instead would be bound to commit Mrs. Leigh Perrot for trial at the next Somerset assizes nearly eight months later and to commit her to the county gaol in Ilchester in the meantime. That deposition also gave Filby the opportunity to alter or correct parts of his original statement.
Filby’s deposition and his original statement with John Morris’s opinion were sent to the trial judge and the prosecution. They were not shown to the defense or the jury. That was the law and practice at that time. Counsel for the prosecution then took him through his deposition in his examination in chief so that everyone in court—the defense, the jury, the public, the press and the reporters—should hear it. And that record is how we know what was in his deposition. We do not have a copy of the document itself.
The prosecution did not reveal the existence or the contents of Filby’s original statement or John Morris’s opinion on it. It would have been disastrous to do so. But they did take steps to stop the jury reaching the same conclusion. John Morris had said that the claim was “plainly a view to extort a sum of money from Mr. Leigh Perrot—there was perjury in the whole.” Counsel for the prosecution, in his opening speech, before he called any witnesses and before the jury had had a chance to settle down, said that he anticipated that the defense would be either that Mrs. Leigh Perrot had picked up the lace by mistake “or that it was a malicious prosecution, set on foot for the purpose of extorting money from the Prisoner’s husband. . . . All the witnesses must, in that case, be perjured” (Pinchard 3). The jury, he said, should reject any idea of extortion or perjury. At that time counsel for the defense were not allowed to address the jury, so there could be no right of reply.
If we compare Lady Elford’s and Mrs. Foley’s reports of what Morris told them to the account of the trial, then, the first point that Filby corrected in his deposition is obvious. When he took the five-pound note to Miss Gregory “his back was towards the Prisoner.” When she went down the stairs to the kitchen, “he turned round and observed” what the prisoner had done (Pinchard 16). On the second point—why, when he saw the card under her cloak, did he think it necessary to look over the box to see whether any card was gone?—his answer was clear: “he did not examine the white lace box at that time” (17). The words “at that time” may be important.
The third point is more difficult: why did Filby allow Mrs. Leigh Perrot to leave the shop instead of immediately stopping her and accusing her of theft? Morris was the first, but not the only, person to ask that question. There is no clear answer in our accounts of the trial. Perhaps the mayor did not ask him during the deposition so that the explanation is not recorded. Perhaps he was not asked in cross-examination. It is such an obvious question. Perhaps the answer has got lost in the complicated method of taking statements and examining witnesses by question and answer rather than of allowing the witness to set out the whole of his story in full in his own way.
I think that Filby’s answer would have been that at the time he did not realize that what he saw was the card of white lace: It all happened so quickly. He just caught sight of something in her left hand, but at the time he did not know what it was. That is why he did not examine the white lace box at that time. He had no reason to do so. He chatted with Sarah Raines and Miss Leeson for a few minutes. There were very few customers at that time of year, and he was not in a hurry. Then he went back to work on the white lace box and noticed that a card of white lace was missing. He then realized that the missing card must have been what he had seen in Mrs. Leigh Perrot’s left hand. It was then too late to chase after her. He dashed down into the kitchen and told Elizabeth Gregory what had happened. Fortunately, he had been told by Mrs. Leigh Perrot that she was going to the Post Office to post a letter so that she was likely to come back down the street later on. Miss Gregory went straight upstairs and stood at the door of the shop until she saw the Leigh Perrots coming back down the other side of Bath Street and went across to accost them.
John Morris’s final point concerned Mrs. Leigh Perrot’s purse: a morocco pocket purse. Two hands are needed to put money into a purse, but doing so is difficult if you have a card of white lace in your left hand and a card of black lace in your right. Filby simply deleted the purse from his deposition, swearing that he laid down Mrs. Leigh Perrot’s change on the counter and that she picked it up with her right hand, in which the black lace was (while still holding the white lace in her left hand). He repeated in cross-examination and re-examination that Mrs. Leigh Perrot did not put the change into a purse and, when challenged, said that he was certain of that. Sarah Raines, the new apprentice, swore in cross-examination that she did not see a purse in Mrs. Leigh Perrot’s hand while she was in the shop.
The jury was mainly composed of small shopkeepers. They would know how difficult it is to pick up four coins—three sovereigns and a shilling—from the counter, with a card of black lace in the same hand. The judge told the jurors that if they should see any reason to disbelieve the witnesses for the prosecution or anything leading them to doubt of the prisoner’s guilt, they should acquit. They did not take long to follow his instructions.