Jane Austen’s aunt, Jane Leigh Perrot, was accused of stealing a card of white lace of the value of twenty shillings (one pound) from a milliner’s shop at no. 1, Bath Street, Bath, on Thursday, 8 August 1799. After eight months in the county gaol in Ilchester, on Saturday, 29 March 1800 she was tried for that offence at the Taunton Assizes and found “Not Guilty” by the jury.
Albert Borowitz (1930– ) is a brilliant Harvard scholar, a successful lawyer, and a prolific author of studies in legal history. In 1978 he published “The Trial of Jane’s Aunt,” attacking the decision of the court and the jury. The essay was reprinted, without alteration or revision, in collections of his articles, in 1982, 2005, and 2016.1
In his article Borowitz summarizes the background to the trial, the opening statement of the counsel for the prosecution, the evidence of the prosecution witnesses, Mrs. Leigh Perrot’s unsworn statement, and the case for the defense (299–314). He then asks: “What are we to make, with the hindsight of two centuries, of the merits of the case against Jane’s aunt?” (314). He refers briefly to Frank Douglas MacKinnon’s Grand Larceny (1937), which, after a historical account of the crime and the trial, “reprint[s] verbatim a contemporary account [of the trial] . . . by John Pinchard” but “does not analyze the nature and quality of the evidence at the trial” (314). Borowitz then asks five more specific questions about the trial (314–23), concluding: “It seems obvious, then, that despite the long-lived tradition that Mrs. Leigh-Perrot was freed because conspirators clumsily failed to impose perjured testimony on the court and the jury, the outcome turned instead on the jury’s disbelief that a rich and respectable woman would have committed a minor theft” (323). This article considers separately each of the five questions asked by Borowitz as well as Borowitz’s conclusion. It disagrees with him on all points.
Borowitz’s analysis has been followed by a number of more recent authors, particularly by Ellen Moody: “it’s just too convincing” (“Austen Papers”). Deirdre Le Faye, in Jane Austen: A Family Record, presents a different view, calling the prosecution witnesses blackmailers (120–24), but she does not cite Borowitz, and he does not cite her, even in the later reprints. David Nokes, in Jane Austen: A Life (1997), in quite a long account of the trial does not mention Borowitz. In Lucy Worsley’s Jane Austen at Home (2017), Borowitz appears in the bibliography but is not cited in the text. There is disagreement but no debate. In re-examining the decision of the court and the jury in the light of the criticisms levelled against them by Albert Borowitz, I hope to start a debate.
The available primary information on the trial of Mrs. Jane Leigh Perrot comes from the three law reports published in pamphlet form immediately after the trial: at Taunton, by John Pinchard; in London, probably by Joseph Jekyll, counsel for the defense (Trial of Mrs. Leigh-Perrot); and at Bath, probably by William Gye (Trial of Jane Leigh-Perrot). More information with analysis is available from MacKinnon’s Grand Larceny (1937), which includes a facsimile of Pinchard’s pamphlet and a selection of letters by Mrs. Leigh Perrot as well as letters to her and her husband, and from my recent publication, “An Enlightening Letter Regarding the Leigh Perrot Shoplifting Case: A Letter from RW to James Leigh Perrot,” which prints half of a letter that MacKinnon omitted.
The role of social position
Among the questions Borowitz asks is “What weight is to be given to Mrs. Leigh Perrot’s social position and character evidence?”. He begins with the assertion: “It appears quite likely that Mrs. Leigh Perrot’s speedy acquittal was due less to defects in the prosecution’s proof than to the great weight accorded by the court and the jury to Mrs. Leigh Perrot’s social position and character evidence” (321). And he concludes (as quoted above): “It seems obvious, then, that despite the long-lived tradition that Mrs. Leigh Perrot was freed because conspirators clumsily failed to impose perjured evidence on the court and the jury, the outcome turned instead on the jury’s disbelief that a rich and respectable woman would have committed a minor theft” (323).
Now, we do not know what the jury believed or disbelieved. Juries give no reasons for their judgment. Individual members of the jury give no reasons and may agree on a result for different reasons. Mrs. Leigh Perrot was very impressed with the jury. (She would be, wouldn’t she?) In a letter to a cousin after her acquittal, she wrote: “The Jurymen, who seemed much more enlightened than Petty Jurors generally are, took Notes many of them, and were 7 minutes and a half studying to explain those Notes to their less intelligent companions, before they brought me in not Guilty” (MacKinnon 119). The jury’s notetaking suggests a serious evaluation of the evidence presented: notes are not necessary to explain to the other jurors that rich, middle-class ladies are not likely to indulge in shoplifting for small items, but they are helpful for going into more detail of who said what and whether it agreed with, or differed from, what another witness said.
We are better informed about what the judge, Sir Soulden Lawrence, said, though not necessarily about what he thought. He very properly summed up the evidence and left the jury to take the decision. Borowitz quotes the two crucial sentences from the judge’s summary:
[T]he case on the part of the prosecution was fully proved, if they believed the testimony of the witnesses called in support of it. . . . If upon taking all the circumstances of the case into consideration, the jury should see any reason to disbelieve the witnesses for the prosecution, or which led them to doubt of the Prisoner’s guilt, they should recollect the very excellent character which had been given her, and in that case it ought to have great weight with them towards an acquittal. (Pinchard 39, 42–43; Borowitz 322–23)
The case turned, then, on the question of whether the jury believed or disbelieved the witnesses for the prosecution. On that issue the judge expressed no opinion of his own and left the case to the jury.
As to the character evidence, the judge gave instructions to the jury that are of fundamental importance (italicized below) but that were left out by Borowitz in his article (though Nokes does include them ).
It was impossible, his Lordship said, that any person could have a higher character than the Prisoner—from Lord Braybroke—from Mr. Vansittart, member for Berks—from Mr. Annesley, member for Reading—from a number of other persons of the greatest respectability, and from the tradesmen with whom she had had dealings at Bath; but that if the Jury were satisfied with the evidence, and believed the witnesses for the prosecution, that character ought not to avail her; and however exemplary her former conduct might have been, they were bound to pronounce her guilty. (Pinchard 40–41, my italics)
According to the judge’s instructions, it follows that when the jury found Jane Leigh Perrot not guilty, they were saying that they did not believe the witnesses for the prosecution.
The character witnesses
What is the point of calling character witnesses if their evidence is disregarded when the facts are clear? Mrs. Leigh Perrot called fourteen character witnesses at “frightful Expense,” according to her own estimate, “nearer two than one thousand pounds” (MacKinnon 119). They included the nobility and landed gentry of Berkshire, two parish priests, five respectable residents of Bath, and three Bath tradesmen. As the judge said, their evidence might have been relevant in case of doubt but not if the jury believed the witnesses for the prosecution.
Character witnesses were particularly important when it came to the sentence. In 1800 there was no possibility of a plea in mitigation of sentence after conviction. That plea had to be made during the trial itself. Stealing property worth five shillings or more was a capital offence, and, if Mrs. Leigh Perrot had been convicted, she must have been sentenced to death. But the judge had the power to order a stay of execution and a reference to the King with a recommendation for mercy, and very often the sentence was commuted to transportation to Australia for fourteen years. There was nothing automatic, however, about the commutation, and a convict who had no character witnesses might well be left to hang. Two or three character witnesses would have been more than enough—say, two vicars and a tradesman—to save Mrs. Leigh Perrot from being hanged. But she did not want to be transported for fourteen years. If she were to be convicted, she wanted a complete pardon. More than seven months in Ilchester prison was sufficient punishment for stealing goods worth one pound. That is why there were so many character witnesses, including Lord Braybrooke, whose wife was a cousin of prime minister William Pitt, a daughter of a previous prime minister, and sister of a later one; the Members of Parliament for Berkshire and Reading; and a former High Sheriff of Berkshire and M.P. for Fowey in Cornwall. James Leigh Perrot had been nominated as High Sheriff of Berkshire in 1769, though he had never served. The character testimony of the cream of Berkshire society must have had considerable influence over the sentence if Mrs. Leigh Perrot had been convicted. A full pardon was not unthinkable.
A motive for Mrs. Leigh Perrot?
Having ignored the judge’s instructions to the jury, left out part of them, and decided that Mrs. Leigh Perrot was guilty and had only been acquitted because she was “a rich and respectable woman” (323), Borowitz then speculates as to what her motive might have been:
We . . . know that Mrs. Leigh Perrot, on the day before the incident, had been in the Smith shop examining some black lace from London. Only on a second visit had she brought herself to conclude the purchase and perhaps she regarded the price as extravagant. It is therefore possible that when she saw the opportunity of taking the white lace, she acted, like the stock investors of our time, to “average down” her purchase price. (323–24)
This pure speculation does not quite fit the facts as they are set out in the deposition of Elizabeth Gregory, one of the prosecution witnesses and the woman who kept the shop for its proprietor, Mary Smith. On her previous visit to the shop, Mrs. Leigh Perrot had examined some black lace, but apparently she had not found quite what she wanted. Elizabeth Gregory told her that more black lace was expected from London the following day. When Mrs. Leigh Perrot returned on Thursday, she asked if the lace from London had arrived and was told that it had not. She therefore had another look at what she had seen the previous day and chose part of it. As far as we know, she was not concerned with the price but with the sort of lace to buy. Borowitz’s speculation thus moves beyond the evidence.
Borowitz asks another question: “Do the circumstances of the discovery of the white lace in the possession of Mrs. Leigh Perrot support the negligence theory by proving her lack of consciousness of guilt?”. He notes the judge’s emphasis of the argument by Mrs. Leigh Perrot’s defense:
I think . . . some quarrel could be taken with his lordship’s accentuation of the defense argument that Mrs. Leigh Perrot’s “returning and passing by the shop, with the parcel containing the lace in her hand, so soon after she had left it, when it was proved by the witness Filby that sufficient time had elapsed for her to have gone home and concealed it, had she chosen so to do, certainly did not appear to be the conduct of a guilty person, for that thieves are wont to hide away and conceal the property they have stolen.” (320, quoting Pinchard 41)
The judge’s skepticism of the prosecution argument, however, is reasonable. On both sides of Bath Street there is a colonnade over the pavement with the upper storeys projecting to the edge of the pavement. If the Leigh Perrots had walked on the pavement opposite the shop, they would have been less likely to be seen. But, as Elizabeth Gregory admitted in cross-examination, they were “walking publicly in the street” (Pinchard 11). Mrs. Leigh Perrot was making no effort to walk down the street without being seen. That behavior does not look like the conduct of a guilty person.
The acknowledgment by Charles Filby, a shop assistant, that Mrs. Leigh Perrot could have avoided apprehension, as the judge suggested, is also compelling. It was not a defense argument; it was a prosecution admission. And it sounded like a reluctant admission: I “don’t know but that there was time for her to have gone home if she had chosen to do so.” (Pinchard 24). Mrs. Leigh Perrot made a similar point in her unsworn statement to the court, which she transcribed, as her Observations, for her cousin Mountague Cholmeley: “I will only ask you [i.e., the judge and the jury] whether to be found opposite to the Shop within the space of little more than half an hour, and with the Lace in my Hand is like the conduct of a Guilty Person” (MacKinnon 119). But that sentence, apparently, was not read out in court. It is missing in all three reports of the trial. That omission was probably suggested by her counsel, Joseph Jekyll, who read out her statement for her. A damaging admission by a prosecution witness (i.e., Filby) in cross-examination under oath was likely to carry more weight with the jury than an assertion by the defendant in an unsworn statement prepared in advance and read out for her by her counsel.
Borowitz says that Filby’s admission “is at best a very ambiguous factor” (321). I do not know what he means. It looks perfectly clear to me. Borowitz goes on, in a passage that I do not understand, to say that it is possible that Mrs. Leigh Perrot would have liked to go home with the parcel but not without her husband (whom she was meeting) and that Mr. Leigh Perrot was a painfully slow walker (321). Even if true, that would not explain why she did not take any other steps to escape detection, like walking on the pavement under the colonnade or returning down a different street. If she were guilty, then walking publicly right in front of the lace shop would have been asking for trouble. The natural conclusion is that she was not guilty, and, indeed, that was the view taken by the judge and the jury.
The judge’s questions
The judge addressed the jury for exactly fifty-eight minutes. The longest report of his charge (in Pinchard’s pamphlet) occupies four pages, the other two less than a page (167 words; 107 words). The brevity of the accounts is not surprising: since much of the judge’s address rehearsed the evidence for the jury’s benefit, the reporters saw no point in repeating it. But from what exists we can identify some parts of the evidence to which the judge particularly drew the jury’s attention.
The reports do not normally record the questions and answers verbatim but merely give the substance of the answer, but there are two exceptions in Pinchard’s report. The first is in cross-examination of Charles Filby by Mr. Bond, a member of the prosecution team:
Q. You not only say then that you saw Mrs. Leigh Perrot’s hand in the box, but that you also saw the card in her hand under her cloak?
A. Yes, I did—I saw it distinctly hanging down under the cloak. (Pinchard 24)
Bond left it at that, and the judge simply drew it to the jury’s attention without, as far as we know, commenting further. But the intelligent members of Mrs. Leigh Perrot’s jury, having wondered why Filby let her leave the shop instead of stopping her and charging her with theft immediately, and receiving no answer or explanation, may have concluded that he was not telling the truth—or at least that there was doubt about his truthfulness.
The second time question and answer are recorded verbatim is when the judge himself questioned the apprentice Sarah Raines:
Q. by the Judge. You say he did not put any white lace in the parcel with the black; how could you know that not being particularly observant?
A. I saw that he put in the black lace only.
Q. Are you certain of that?
A. Yes, my lord, I am. (Pinchard 29)
The first question above follows from what Sarah Raines had said when cross-examined by Joseph Jekyll, Mrs. Leigh Perrot’s counsel:
[W]as at work [i.e., needlework] when Mrs. Leigh Perrot came into the shop—as soon as the lace was put away Witness returned to work—that all the time she was absent from work she was employed in putting away the black lace which her attention was principally engaged in—admits that there was nothing particular to draw her attention in the manner of Filby’s putting up the black lace, and that she sees him every day putting up parcels—that she did not then pay any particular attention to him, nor did she observe particularly from whence he took the paper to wrap up the parcel in—. . . she did not see the change delivered to Mrs. Leigh Perrot, nor did she see any purse in her hand while she was in the shop. (Pinchard 28–29, my italics)
In fact, Sarah Raines did not seem to have seen anything apart from what she was doing herself. The judge’s first question and his summing up both drew the jury’s attention to that lack of evidence.
Sarah Raines did not, in fact, answer the judge’s question “how could you know?” She simply asserted that she saw that Filby “put in the black lace only.” It is often easy to see when a young person is lying, and it would have been interesting to see her body language at that point. The schoolmaster on the jury must have had plenty of experience of that kind of behavior. The judge gave her a chance to think again, but she did not take it. It was easy for the jury to draw their own conclusions.
Actually, in her evidence-in-chief Sarah Raines had gone even further. Not only had she not seen Filby put any white lace in the paper, but “there was nothing else in the paper” (Trial of Mrs. Leigh Perrot 21, italics in original).2 If true, that detail was a crucial piece of evidence and the reason for Jekyll’s cross-examination: he forced Raines to admit that she had seen hardly anything.
Jekyll then asked Sarah Raines a further question, to which she replied that she “went before the mayor and was examined by him, but believes that he did not take her examination in writing” (29). The mayor had taken depositions from Elizabeth Gregory and Charles Filby but not from Sarah Raines. If she had told him what she told the court—that “there was nothing else in the paper”—he would surely have taken her deposition on oath. The natural conclusion is that she had not told him anything that might help to incriminate Mrs. Leigh Perrot but that between that meeting and the trial she had changed her mind or had had her mind changed.
The credibility of the witnesses
Elizabeth Gregory’s credibility and reliability as a witness had suffered over the course of the trial. She had worked in the shop for five years (she was the sister of Mary Smith, the shop’s owner) claimed in cross-examination that she had “kept [the shop] two years herself” and “carried on business on her own account” (Pinchard 10). But Charles Filby said, also in cross-examination, that he was “hired by Mrs. Smith six months before August,” that is during the time that Elizabeth Gregory claimed to be keeping the shop (Pinchard 19). And Sarah Raines said, again in cross-examination, that she had “been apprenticed about a year—was bound to Mr. Lambe” (one of the landlords and owner of the tea shop next door), and “that she was in the service of Miss Gregory but had not been assigned to her” (Pinchard 28–29). Further, Elizabeth Gregory admitted in cross-examination that “she knew of an advertisement having been made in Smith’s name, for selling off the stock” (Pinchard 11). If she were running the shop, why was it not her advertisement?
A jury of small businessmen might well wonder why, if Miss Gregory ran the business, she did not hire her own employees, or take on her own apprentice, or place her own advertisements. The jury had the advantage of watching her while she was giving evidence and of considering her demeanour and body language. There seems no reason to doubt that Filby was hired by Mrs. Smith before she went to Cornwall. Presumably also Sarah Raines was apprenticed to Mrs. Smith and then, on her move to Cornwall, assigned to Mr. Lambe—though she actually worked for Miss Gregory. But, given the conflicts, they could not all be telling the truth. If witnesses are not telling the truth, then they need to coordinate their stories—but that coordination is very difficult when they do not know what questions will be asked in cross-examination. We may conclude—and the jury might have concluded—that Elizabeth Gregory was not telling the truth. Perhaps she wanted to explain why she, rather than Mary Smith, was bringing the prosecution but had not worked out the consequences of her statements.
In her deposition Elizabeth Gregory had been much more cautious. There she had said, quite plausibly, that she kept the shop and ran the business in August when her sister was in Cornwall. If she had said then that she had been running a business in a prominent position in the center of Bath on her own account, she would have been caught out by the mayor and the magistrates. Saying so eight months later in Taunton, she ran no such risk.
From the advertisements in the Bath Chronicle, we know (though the jury could not) that Mary Smith was the proprietor of the business from 1798 to 1807 and ran it herself, except in August 1799, when she went to Cornwall and left her sister, Elizabeth Gregory, in charge. Mary Smith placed the advertisements. Mary Smith went up to London to choose and buy new stock (see Pugsley, “Aunt Jane’s Trial”; “No. 1, Bath Street”).
The jury of small businessmen might have been suspicious again when Elizabeth Gregory was asked in her second cross-examination how much she paid Mrs. Smith. It is a straightforward question. Filby was paid £50 a year. How much was Mrs Smith paid? Answer: “she was not entitled to more of the profits than [Gregory] chose to give her” (Pinchard 12). Apparently, counsel did not pursue the matter. The jury might not have found her answer very convincing.
A jury of small shopkeepers might also have been surprised by the layout of the shop as shown in Charles Filby’s diagram (reproduced in John Pinchard’s pamphlet). Instead of locating the shop assistants near to the door, ready to serve the customers, and the stocktaking at the back, the staff were at the back, and the stocktaking was done next to the door, in the most convenient place for shoplifters. That arrangement was either a thoughtless business practice or evidence of suspicious intention.
The jury should have been even more surprised by what allegedly happened next. Filby was sitting behind the counter next to the door, working on a box of white lace, stock-taking, with the box on his right, close to the door, and the lid on his left. He started with all the cards of white lace in the lid, picking them up one by one to measure them, adding the shop mark, and placing them in the bottom of the box on his right. While he was doing this, Elizabeth Gregory called him to come and measure the black lace for Mrs Leigh Perrot, a move that would have left the white lace unguarded next to the door. Was it thoughtless or intentional? Why did Miss Gregory not measure the black lace herself, or ask Miss Leeson, the shopwoman, to do so? The jury might begin to wonder whether Gregory actually wanted Filby to come down to the bottom end of the counter in order to leave the white lace at the top end with no one looking after it.
Even more surprising is what happened next. Filby turned round and placed the lid of the box, containing the unmeasured and unmarked cards of lace, upon the chair on which he had been sitting. The bottom part of the box—with the marked cards in it—he left on the counter, right next to the door, where a customer could easily take one, or be accused of having taken one. Why did Filby not put the bottom of the box on top of the lid on his chair, where it would have been safe? Perhaps because in that case, he would not have been able to accuse a customer of taking one of the cards of lace.
There remains the question: how could a marked card of white lace get into the black lace parcel? One possible explanation is that Filby did not put it in the bottom of the box with the other marked cards but kept it in his hand, and when he turned round to put the lid of the box on his chair, he quickly took up a piece of wrapping paper and put the card of white lace in it. He could then have gone down to the bottom end of the counter with his yardstick in one hand and in the other a piece of brown paper containing the card of white lace. Putting the paper under the counter, he might have measured the black lace, quickly taken up the paper, and put the black lace in it, on top of the white lace. He then wrapped the parcel up and gave it to Mrs. Leigh Perrot. All this would have had to be done very quickly so that Mrs. Leigh Perrot, who was watching him, did not notice anything. Sarah Raines, who was busy putting away the rest of the black lace, did not notice anything either. She admitted that she did not know where he took the paper from, but that it was very near him, as he did not go from the place where he was standing to get it. She could hardly have seen whether there was a second card of lace in the paper.
This possibility explains why Filby did not stop Mrs. Leigh Perrot from leaving the shop and charge her with theft immediately. At that stage she had not had any opportunity to put the white lace into the parcel with the black lace, so that if it were found there before she left the shop, Filby must have put it there himself. But, of course, Filby could not say that, and the jury was left wondering.
The problem for the prosecution was that they could not admit what had actually happened. They had therefore to construct an alternative, necessarily fictional, scenario. That kind of invention was dangerous because they could not tell in advance what questions they might be asked in cross-examination or what would be the reaction of a jury of small businessmen.
Filby testified that he saw the white lace in Mrs. Leigh Perrot’s “left hand under her cloak”; “the back lace was in her right hand—he gave her the change at that end the counter nearest the door—laid it down on the counter and Prisoner took it up with her right hand, in which the black lace was.” Then, with both hands full, she stood for “two or three minutes” asking Filby “where Mrs. Smith was, when she would be home, and some other questions” (Pinchard 16–17). Finally, she left the shop, still, apparently, with both hands full. Borowitz says she left “as if she were one-armed” (308). If we believe Filby’s testimony, she must have looked worse than that when she went out into the street. The intelligent businessmen on the jury must have been asking, why did she not put the change in her purse? Filby simply repeated that she did not put the change into a purse (Pinchard 24). He repeated that again in re-examination (26). Sarah Raines, who admitted that she did not see Filby give Mrs. Leigh Perrot the change for the note, added that she did not see any purse in her hand while she was in the shop (29).
The intelligent businessmen on the jury must have been wondering why did she not put the change in her purse. Did she not have a purse? Where was the five-pound note on her way to the shop? Where was the change on her way home? And why did the prosecution insist so strongly that there was no purse to be seen?
Borowitz has a third question: “How persuasive was the evidence that Filby included the white lace in Mrs. Leigh Perrot’s package through negligence?” (319). Here he has a field day. How could a card of white lace get from one end of the counter to the other, a distance of “approximately four yards” (319) by mistake? “This ‘mistake’ would have involved a degree of somnambulism (and possibly manual dexterity) on the part of Filby” that Borowitz rejects (320).
The defense, of course, does not have to prove anything. It is up to the prosecution to prove its case. The defense does not even have to say what its defense is. In a system in which neither Mr. nor Mrs. Leigh Perrot could give evidence about what happened in the shop and in the street, and in which their counsel could not address the jury, they could not be expected to say what their defense was and to prove it. Even in her unsworn statement, her Observations, she did not mention negligence or any other defense: “You have heard their evidence against me, I shall make no comment upon it—I shall leave that task where I am certain it will be executed with justice and mercy” (MacKinnon 105). As the judge said in his instructions to the jury, all that the defense had to do was to produce reasons why the jury should disbelieve the witnesses for the prosecution or why they should doubt of the prisoner’s guilt.
If Mrs. Leigh Perrot did not take it herself, the card of white lace must have been moved intentionally from one end of the counter to the other. I have set out above how that could have been done consistently with the evidence of Charles Filby and Sarah Raines. Incidentally, this theory explains why the white lace was underneath the black lace even though it was the bigger of the two cards. There is no somnambulism involved, though there was certainly some manual dexterity on the part of Filby. Again, the defense does not have to prove that such a reconstruction happened, only to cast doubt on the prosecution’s case and so justify the acquittal.
Borowitz asks: “Did Filby perjure himself in testifying that Mrs Leigh Perrot hid the stolen lace under her black cloak?” (318). This is a seemingly minor detail, but an important one. In a letter to her cousin after the trial Mrs. Leigh Perrot denied that she had been wearing any cloak at all (MacKinnon 118). Borowitz comments:
[I]t would be hard to believe that the Leigh Perrots, promenading on one of the main streets of Bath where they were well known, did not come across a single friend or acquaintance on the day in question who could have testified that Mrs. Leigh Perrot was not wearing a cloak. No such testimony was introduced. Filby would have been taking a great risk in lying about Mrs. Leigh Perrot’s apparel, since the possibility of the defense’s producing a contradictory witness should have struck him as very great indeed. (318–19)
Both Elizabeth Gregory and Charles Filby said in their depositions that Mrs. Leigh Perrot was wearing a cloak. Filby used the word at least four times.
But Borowitz here overlooks that the depositions were taken before the magistrates and transmitted by them to the judges; the depositions were subject to inspection by the prosecution and the judges but not by the accused parties and their advisers or, we may add, by the jury. The defense only found out what was in those depositions during the trial in the oral examination-in-chief of the prosecution witnesses. It was then too late to send to Bath for such witnesses, even supposing that anyone could remember in March what Mrs. Leigh Perrot had been wearing the previous August. Filby was in no danger on that account. Borowitz learned the rules about depositions when he was writing The Thurtell–Hunt Murder Case: Dark Mirror to Regency England (1987), where he sets out the classic judicial statement of the law on depositions prior to 1836 (106). He ought to have amended “The Trial of Jane’s Aunt” in the subsequent reprints, but he did not do so.3
The question of conspiracy
To the question “Was there a conspiracy to extort money from the Leigh Perrots?” (314) Borowitz answers no:
[T]he supposed conspirators of the William Smith millinery shop did not set out in hot pursuit of Aunt Jane. How did they know, then, that she would conveniently return to the neighbourhood a half hour later with the missing lace still in the original package, however “rumpled”? They could not have known. The recovery of the lace was fortuitous, and the conspiracy theory is apparently a fantasy. (318)
But the evidence of Sarah Raines suggests otherwise. She testified that, after Mrs. Leigh Perrot left the shop, Filby went downstairs and then “Miss Gregory then came up and stood at the door, and soon afterwards she went out” (Pinchard 28, my italics). From this behavior it is clear that Miss Gregory was expecting Mrs. Leigh Perrot to come back fairly soon; otherwise she would presumably have gone back to work at the desk at the very back of the shop. From the desk—as the plan of the shop shows—she could just see the Leigh Perrots on the other side of the road if she happened to look up at precisely the right moment. From D she could just, but only just, see the Leigh Perrots at L. (Modern versions of the plan often omit L.) That really would have been fortuitous. From the door she could keep an eye on both Bath Street and Stall Street.
How did Gregory know that Mrs. Leigh Perrot would come back? It must have been because Filby told her so. According to the London pamphlet, Elizabeth Gregory said in her deposition that, having gone down to dinner, she “went up again into the shop in about ten minutes afterwards in consequence of information she had received from Filby” (The Trial of Mrs. Leigh-Perrot 9, my italics).
And how did Filby know that Mrs. Leigh Perrot would come back? Presumably because she told him so. We may note that such conduct is not typical of a guilty person. Shoplifters do not normally tell the shop assistants where they are going next. But before Mrs. Leigh Perrot left the shop, supposedly with both hands full (according to Filby with white lace in her left hand, black lace and the change from the fiver in her right), she asked about Mrs. Smith “and some other questions” (Pinchard 17, my italics). She had come on ahead of Mr. Leigh Perrot, who was a very slow walker, but she wanted to meet him later. She might have said to Filby: if my husband comes in looking for me, please tell him that I have gone on to the post office (or wherever she was going) and that I will meet him at, for example, the corner of Bath and Stall Streets. Filby then would have told Gregory, who stood at the door waiting for them to reappear.
The conspiracy theory is not a fantasy. Some sort of forward planning would have been needed. When Gregory said that she was expecting more black lace from London the following day, Mrs Leigh Perrot might well have said that she would return then. That information would have given Gregory and Filby the opportunity to prepare to blackmail the Leigh Perrots. (This view was held by Deirdre Le Faye: “it seems that [William Gye, “of doubtful reputation”] and Miss Gregory, together with her lover, Charles Filby, . . . decided on the night of 7 August to blackmail Mrs Leigh Perrot when she called again to buy the lace in which she had expressed an interest” .) Gregory and Filby would then have had time to make sure that there was an open box of shop-marked cards of white lace conveniently next to the street door and to arrange for Elizabeth Gregory to call Charles Filby away to measure the black lace. There must have been some plan to challenge Mrs. Leigh Perrot after she had left the shop. There had to be enough time and opportunity for them to claim that Mrs. Leigh Perrot had put the white lace in the black lace parcel; otherwise, it would be obvious that the white lace was already there when she left the shop and must have been put there by Filby. So there was no hot pursuit. If Mrs. Leigh Perrot told Filby where she was going next, she made their task that much easier.
After Elizabeth Gregory had recovered the white lace and returned to the shop, Filby went out to find the Leigh Perrots. They had not gone far, and he caught up with them on turning the corner of the Abbey Churchyard. He asked Mr. Leigh Perrot his name and address. Mr. Leigh Perrot told him “that he lived at No. 1, Paragon Buildings, and that his name was on the door.” Filby “went there directly and saw the name” (Pinchard 18). He also saw the building. Paragon Buildings were occupied by lawyers and professional men and other middle-class residents. There might not have been a conspiracy to blackmail the Leigh Perrots before the conspirators knew their name and address and had some idea how wealthy they were. But it could have been a fishing expedition: first see if you can catch the fish and then, when she is in the net, make enquiries to see whether she is worth blackmailing.
Filby next went to see William Gye, one of the two landlords of no. 1, Bath Street, but we are not told what was said at that meeting. Within half an hour Gregory and Filby went to the Town Hall to lay an information before the magistrates, who were busy elsewhere with troop movements through the city; they saw the town clerk and the deputy town clerk, however, and related the circumstances to them (Pinchard 18–19).
Four days after Filby’s visit to No. 1, Paragon Buildings, according to a letter that she wrote to her cousin Mountague Cholmeley, Mrs. Leigh Perrot received an anonymous letter through the penny post
directed to “Mrs. Leigh Perrot, Lace Dealer, No. 1 par,” containing these lines: “Your many visiting Acquaintance, before they again admit you into their houses, will think it right to know how you came by the piece of Lace stolen from Bath St. a few days ago. Your husband is said to be privy to it.” (qtd. in MacKinnon 7).
The anonymous letter is quoted in Le Faye (120), Nokes (199), and Honan (150). Borowitz leaves it out altogether; it should be part of his review of the chronology (301). Ellen Moody, who follows Borowitz very closely, also leaves it out, asserting that “there is no letter by the shop-owner showing any blackmail” (“How Jane’s Aunt Jane”). It is true that the letter is anonymous, but it is clear where it came from and what its purpose was.
There must have been a meeting of the conspirators in the interval between the incident and the receipt of the anonymous letter. After the end of the trial Mr. Leigh Perrot received a letter, dated 30 April 1800, from “C.H—B.L.—Humanists,” which claimed that the prosecution had been planned in William Gye’s dining room “at past 12 at night on the 8th of August last,” the night after Mrs. Leigh Perrot had been accused by Miss Gregory:
It was planned put in execution and insisted on by that notorious Villain where the card of Lace was deposited one whole night—Miss Leeson [the shopwoman] much objected next day to the proceeding—but the compensation held out by him that would be ofer’d by you overrul’d all these arguments. (qtd. in MacKinnon 127–28)
Though Borowitz quotes extensively from another anonymous letter MacKinnon provides, which requests a subscription of one hundred guineas to Bath’s general hospital as compensation for suppressing the publication of a “scandalous print” (126), Borowitz ignores this letter. The information provided about the meeting in Gye’s dining room fits quite plausibly between Filby’s Thursday visit to Paragon Buildings and Monday’s anonymous letter to Mrs. Leigh Perrot. It is unlikely that any one of the conspirators would have taken the initiative to write the letter without consulting the others.
From the letter by C.H and B.L, it seems that Elizabeth Gregory took the card of white lace to that meeting and left it there by mistake; William Gye gave it back to her the following morning. It was acknowledged in court that the lace produced (with the shopmark) “was in the possession of Mr. Gye one night only—he delivered it back again to [Miss Gregory] the next day” (Pinchard 9–10).
Meanwhile the town clerk and his deputy had taken counsel’s opinion. They sent the statements by Gregory and Filby to John Morris, KC, a distinguished member of the Western Circuit bar, who had recently retired to Bath. His opinion, conveyed to Mrs. Leigh Perrot in a letter from her friend Lady Elford, was unequivocal: “the Accusation must be found false by any one who would take the trouble of considering a moment.” Indeed, he said, “the very motive was plainly a view to extort a sum of money from Mr. Leigh Perrot—there was Perjury in the whole” (qtd. in Mackinnon 57). Morris wondered: “why did [Filby] permit [Mrs. Leigh Perrot] to leave the Shop, when he might have stopt her, & charged her with theft immediately?” There was another point of particular interest to Morris: Filby had said in his initial statement that Mrs. Leigh Perrot “took the change, saw that it was right, & put it in a morocco pocket purse.” Morris asked: “In putting her money into her purse she must have used both hands, what prevented the Card from falling?” (58).4
Based on these inconsistencies, the magistrates should have decided to let the matter drop, but since Gregory and Filby insisted on giving evidence on oath, they were bound to take their depositions when they finally met on 14 August. There was no mention in Filby’s deposition of the morocco pocket purse, or indeed of any purse. The magistrates also examined Sarah Raines and Miss Leeson but did not take their depositions because they had not seen anything significant.
During the interval before the Taunton Assizes in March, Mr. Leigh Perrot received a number of letters. On February 12, 1800, G. L. R. wrote to say:
I know that in a room in the Greyhound the Girls at the Shop in Bath Street have been tamper’d with, & such promises made them, if they would appear as Witnesses against [Mrs. Leigh Perrot], and such threats if they would not, that they have been drawn in to give their promise to do so. (qtd. in MacKinnon 25).
Borowitz quotes part of this letter (316), but not this part. (Ellen Moody speculates that it is a forgery.) Sarah Raines did not give a deposition in August, presumably because she had nothing of significance to contribute; in March she gave evidence attempting to support Filby’s story. The meeting in the Greyhound would account for the evidence that she has been tampered with.5
The magistrates sent the two depositions to the judge and the prosecution in the normal way. They also sent with them the original unsworn statements and the opinion of John Morris, KC, which Vicary Gibbs, the prosecutor, had in front of him, or had read, when he addressed the jury at the beginning of the trial. That is how he knew that Gregory and Filby had related all the circumstances to the town clerk and the deputy town clerk. Gregory’s deposition said that she mentioned to the town clerk and the deputy clerk what had happened; Filby’s deposition said that he went there to speak of the business and to lay his complaint, but the magistrates were all gone.
The fact that the magistrates sent the original unsworn statements and John Morris’s opinion with the depositions explains Vicary Gibbs’s extraordinary opening speech to the jury before he called his witnesses. John Morris, KC, had carefully studied the statements by Gregory and Filby to the town clerk and the deputy town clerk and had dismissed the case out of hand: “the very motive was plainly a view to extort a sum of money from Mr. Leigh Perrot—there was Perjury in the whole” (qtd. in Mackinnon 57). There was a risk that, when the jury heard the evidence, they might come to the same conclusion. Vicary Gibbs therefore tried to head them off straight away. He “anticipated that the defence would in all probability be either that the witness, Filby, had by mistake inclosed the card of white lace . . . in the same parcel with the black lace, . . . or that it was a malicious prosecution, set on foot for the purpose of extorting money from the Prisoner’s husband” (Pinchard 3). In that case all the witnesses must be perjured—John Morris’s conclusion.
Vicary Gibbs rejected the possibility of perjury on the grounds that it was even more serious than shoplifting, and that Gregory and Filby had “immediately” gone to the town hall and “related all the circumstances to the town-clerk and deputy town-clerk, and to every person they met. It was then impossible to recall the report” (Pinchard 3–4). Borowitz puts it more strongly: they told their story “to every person in town who was willing to listen to them” (315). Actually, no evidence was produced during the trial that Gregory and Filby had told anyone apart from the town clerk and the deputy town clerk at this stage, and their unsworn statements were not public. There was nothing to recall. It would have been sufficient not to meet the magistrates on August 14.
Vicary Gibbs, however, wished to give the jury the impression that the defense must provide a defense—that the burden was on them to prove either negligence or perjury. It is odd for the prosecution to say what the defense is. Borowitz goes further than Vicary Gibbs: “the defense was squarely based on the theory that the white lace was inadvertently enclosed in Mrs. Leigh Perrot’s package through the negligence of the clerk Filby” (317).
In fact, the burden of proof was on the prosecution to prove its case. The defense did not have to prove anything. They could not be expected to do so in a system in which neither Mr. nor Mrs. Leigh Perrot could give evidence about what happened in the shop and in the street outside, and in which their counsel could not address the jury or reply to Vicary Gibbs’s opening speech at the end of the case.
That conflict between Borowitz’s position and basic legal principle takes us back to where we began: Mr. Justice Lawrence’s instructions to the jury. The judge addressed the jury for nearly an hour, summing up the evidence and instructing them on the law. But the jury had heard the evidence themselves for about five hours and might have reached their own conclusion or conclusions, which they jotted down in notes, which they most likely explained to “their less intelligent companions.” The judge did not rule out perjury. He said the case depended on whether the jury believed the witnesses for the prosecution. If they did, they should ignore the evidence of the character witnesses and convict. If they disbelieved the prosecution evidence or had doubts, they should take into account the evidence of the character witnesses and acquit. They quickly acquitted Jane Leigh Perrot, indicating what they thought of the prosecution evidence.
The jury gave no reasons for its decision. Juries never do. The judge instructed them to take into account all the circumstances of the case. That included the fact that Jane Leigh Perrot had not behaved like a guilty person, behavior that the judge expressly mentioned. It also covered the suspicious lay-out of the shop, the way in which the white lace was left next to the street door without anyone keeping an eye on it, the odd way in which Mrs. Leigh Perrot was said to have picked up her change, the apparent lack of a purse, Elizabeth Gregory’s assertion that she ran the shop on her own account though Filby was not appointed by her and Sarah Raines was not apprenticed to her, and any other details which the jury thought were odd or suspicious. If, having taken all those circumstances into account, they believed the witnesses for the prosecution, they should convict, without giving her the benefit of the character evidence. But if they should see any reason to disbelieve the witnesses for the prosecution, or which led them to doubt of the prisoner’s guilt, they should bear in mind the character evidence and acquit. They took very little time in acquitting. They may have reached the same conclusion as John Morris, KC. They would certainly have disagreed with Albert Borowitz’s analysis of the evidence and the judge’s instructions.
1See 1978’s Chilling and Killing (306–31). It was reprinted, without alteration or revision, in collections of his articles, in 1982 in A Gallery of Sinister Perspectives (89–110), in 2005 in Legal Studies Forum (vol. 29, 723–44), and in 2016 in Crimes Gone By (299–329). In this article page numbers refer to the latest reprint, in Crimes Gone By.
2Again, I believe that Jekyll may have produced this pamphlet; he would have wanted to emphasize the contradictions in the prosecution testimony.
3See also Pugsley, “Was Aunt Jane a Shoplifter?” (n22–25). Deirdre Le Faye seems not to have been aware of the law about depositions in 1800; she only mentions the difficulties caused by the rules that the accused and spouse could not give evidence on oath and that the defense counsel could not address the jury (123). On the law of depositions in 1800 see J. M. Beattie (270, 274, 277).
4For more on John Morris, KC, see my essay “The Trial of Jane Austen’s Aunt Jane Leigh Perrot and the Opinion of John Morris, KC.”
5One of the “Girls” at the shop, Miss Leeson, refused to co-operate and disappears from the story. She may have left or been sacked. A Miss Leeson appears in August 1802 in the arrivals at Cheltenham Spa as a lady’s companion to a Mrs. Thorneville, whose husband had recently died. It may be the same person.