There were other signs that Whicher was less than sure of succeeding in his case against Constance. That morning he paid a band of workmen to dismantle the water closet in which Saville had been found, and to scour the cesspool and drain. This was a last-ditch attempt to find the missing nightgown or the knife. The search was unsuccessful. Whicher gave the men 6s.6d., with an extra shilling for refreshments.
Constance arrived in Road at 11.30, escorted by the governor of Devizes gaol. After a brief delay to the start of the proceedings, during which she waited in the house of Charles Stokes, the saddler, she approached the hall. 'She was dressed as before,' reported The Times, 'in deep mourning, but wore a thick veil, which screened her countenance from the eager gaze of the majority of the spectators assembled outside.' The veil was understood as a sign of modesty and decorum. For a woman to hide herself, and her family's privacies, was not sinister but seemly. Yet it was also tantalising. In a novel of 1860, A Skeleton in Every House, Waters wrote of 'the dark secrets that palpitate and writhe beneath the flimsy veils'.
'On being brought into the hall,' continued The Times, 'Miss Constance Kent fell into her father's arms, and kissed him. She then took the seat which had been provided for her, and burst into tears.' The Somerset and Wilts Journal had her quivering into the courtroom: she entered 'walking with a faltering step, and going up to her father, gave him a trembling kiss'.
In contrast to her frailty, the crowd was strong and keen. The hall was 'instantly filled', said The Times. The spectators 'came in with a tremendous rush, occupying every available inch', said the Journal. Only half would fit; the rest thronged outside, awaiting news. Three rows of reporters stretched across the room. Their full, verbatim transcripts of the hearing were to be published all over England the next day.
The magistrates sat on their platform, alongside Detectives Whicher and Williamson, Captain Meredith, Superintendent Wolfe and Henry Clark, the magistrates' clerk. It would fall to Clark to examine Constance on behalf of the Bench.
At a table in front of the platform sat Samuel Kent and his solicitor, William Dunn of Frome, and in front of them the barrister hired to defend Constance: Peter Edlin, of Clifton, Bristol. He had a 'glaring eye, distinct utterance, and somewhat cadaverous expression of countenance', reported the Somerset and Wilts Journal.
Constance bent her head forward, and did not move or speak. She sat through the day frozen and bowed. 'The events of the past month had evidently told severely upon her,' said the Somerset and Wilts Journal, 'for in her thin pale face we should scarcely have recognised the robust, deeply complexioned girl of five weeks ago. The same singularly forbidding cast of countenance, however, characterised her features.'
Samuel rested his chin on his hand and stared ahead. He seemed 'much depressed', according to the Bath Express, 'his countenance bearing unmistakeable indications of deep grief . . . Next to the prisoner, himself and Mr Whicher divided the attention of the public.' Not one of these three had a formal part to play in the day's proceedings - they were there to watch and be watched. The law specifically excluded Constance, as the accused, from testifying.
Elizabeth Gough was called first, and the magistrates resumed their examination of the previous Friday. 'She appeared considerably emaciated,' according to the Somerset and Wilts Journal. This paper's reporter seemed to see the female suspects in the case diminishing before his eyes, as if slowly consumed by the public's hunger for the sight of them.
Clark asked Gough about the blanket. 'I did not miss the blanket from the little boy's cot until it was brought in with the body,' she said.
Edlin asked the nursemaid about the relationship between his client and her young half-brother. 'I have never heard Constance say anything unkind to Saville,' Gough said. 'I have never seen her conduct herself otherwise than kindly towards him.' She was unable to confirm that Saville had given Constance a bead ring on the day he died, or that Constance had given Saville a picture.
William Nutt was recalled. Edlin asked him about his 'prediction' that Saville would be found dead, and Nutt repeated the evidence he had given at the inquest: he had only meant that he feared the worst.
Constance's schoolfriend Emma Moody was then examined.
'Have you ever heard the prisoner make use of any expression of ill-feeling towards the deceased?' asked Henry Clark.
'She disliked it through jealousy,' said Emma.
At this Edlin jumped in: 'That is not an answer to the question. What did the prisoner say?'
Emma repeated some of what she had told Whicher: that Constance admitted to teasing and pinching Saville and Eveline, that she was not looking forward to going home for the holidays, that she felt her parents favoured the younger children.
Clark asked if she remembered Constance saying anything else about Saville. Though Emma had told Whicher that she had once reproved Constance for claiming that she hated her half-brother, the girl made no reference to it now. 'I do not remember any other conversation with her about the deceased child. I have only heard her slightly refer to him.'
'Have you ever heard her say anything more with regard to her deceased brother?' urged Clark, but Edlin intervened.
'I submit that this is wrong; the examination is most unusual and improper . . . It seems to me to be a most unusual and unprecedented line of examination.'
'I have only endeavoured to elicit facts,' Clark protested.
'I give you credit for a sincere desire to do your duty,' replied Edlin, 'but in your desire to discharge it, you have unintentionally very far exceeded it.'
Now Henry Ludlow interrupted to defend his clerk. 'Perhaps you will say in what way. That is rather a strong expression.'
'I most courteously express it,' said Edlin. 'I think Mr Clark has exceeded his duty; he seems to have misconceived it. He has a school-fellow of the prisoner's before him, and instead of confining himself to questions, and being satisfied with the answers, he has pursued the examination rather after the method of a cross-examination, and not in the manner examinations in chief are generally conducted, still less in a case of this important nature.' Applause broke out in the hall, which Ludlow angrily hushed.
'If another demonstration of that kind is made,' he warned, 'the magistrates will order the court to be cleared.' He turned to Edlin. 'Perhaps you will make some specific objection, Mr Edlin, instead of advancing those of a general nature.'
Clark added: 'If we get a witness that does not understand what you ask, I do not know how you are to get at the evidence, unless you ask the question again.'
'But after you have got an answer,' said Edlin, 'you must not repeat the question after the manner of a cross-examination.'
'I have been putting questions according to the rule of evidence,' said Clark, 'and if I do not get an answer, I must put the question again.'
'Then you have asked it again and again, and therefore your business is at an end.'
Clark addressed Emma. 'Have you heard the prisoner say anything with regard to her deceased brother?'
'This question has been put again and again,' said Edlin, 'and it has been answered in the negative, so there is an end of it.' Edlin was doing just what he accused Clark of doing: using repetition as a means of intimidation.
Ludlow took over from the clerk. 'We wish you to state what actually took place,' he told Emma, 'any conversation between you and the prisoner - not hearsay evidence. We do not wish to bring out anything not strictly legal and right. Perhaps you were never in a court of justice before, certainly never on so solemn an occasion; now I ask you if ever any conversation took place between you and the prisoner at the school with regard to her feelings towards the deceased.'
'I do not remember anything more.'
In his cross-examination, Edlin asked detailed questions about Whicher's visits to Warminster. 'He called once at our house,' said Emma, 'and another time at Mr Baily's, a private gentleman; he is a married gentleman. I know him; he lives exactly opposite. Mrs Baily, seeing me in my mother's
garden, sent for me, and I went and saw Mr Whicher, I was not surprised at seeing him there because Mrs Baily had taken an interest in the matter, and asked me about it.' She testified that Whicher had shown her a breast flannel.
Edlin's line of questioning cast Whicher as sneaky and insinuating - to elicit evidence from Emma Moody, he implied, Whicher stalked her, sent a decoy from a house across the road to reel her in, showed her a piece of female underwear, coaxed her to work up her recollections into a damnation of her schoolfriend.
In the course of this, Whicher interrupted to address Emma directly: 'And I impressed upon you the importance of telling the truth and nothing but the truth.' He hoped, with this prompt, to encourage her to give the testimony he wanted.
Edlin tried to defuse the appeal. 'We take it for granted,' he said to Whicher.
'I would rather have it from the prisoner,' said Whicher. (Emma was not a prisoner but a witness - Whicher's slip reflected his frustration with the girl.)
Emma agreed that Whicher had admonished her to tell the truth.
Ludlow once more asked her if she recalled any other conversation with Constance about Saville. She said not.
'The question has been asked again and again,' said Edlin, again.
'Have you remonstrated with the prisoner respecting any conversation you have had with her?' asked Ludlow.
'Yes, sir,' said Emma, at last approaching the conversation she had reported to Whicher. But Edlin instantly objected. The Bench should not be putting such questions, he said; in the interests of humanity he appealed to them to let Emma go.
After a private consultation with Edlin, the magistrates agreed to dismiss Emma Moody.
Joshua Parsons gave his evidence about the post-mortem, which followed what he had reported at the inquest. 'I knew the poor little fellow that was killed, very well,' he added. The doctor testified that he had seen a very clean nightdress on Constance's bed on the morning of the murder. In reply to Edlin, he acknowledged that 'it might have been worn a week or nearly so', and that 'very great force' would have been needed to inflict the stab at Saville's heart. He was not asked for his views on whether Constance was a maniac.
When Henry Clark questioned Louisa Hatherill, Constance's other schoolfriend, she repeated what Constance had told her about the partiality shown to the new family and the slights to William.
Sarah Cox gave evidence about the missing nightdress: she described how Constance had visited the room in which she was packing the laundry on the Monday after the murder, and the furore in the house-hold when the nightdress was found to be missing. Yet Clark failed to bring out Whicher's theory about how Constance had stolen back an innocent nightdress in order to conceal the destruction of the guilty one.
Cox showed no hostility or suspicion towards Constance. 'I observed nothing unusual in the prisoner's manner or behaviour after the murder, except ordinary grief,' she testified. 'I have never seen or heard from her anything unkind or unsisterly in her conduct to the deceased.'
Mrs Holley was the last witness. She was questioned about the missing nightdress. In the five years that she had been washing the Kents' clothes, she said, only two things had gone missing before: 'one an old duster, the other an old towel'.
Edlin began his closing speech by asking the magistrates instantly to liberate Constance Kent. 'There is not one tittle of evidence against this young lady.' With extraordinary nerve, he equated the investigation of the crime with the crime itself: 'I say that an atrocious murder has been committed, but I am afraid that it has been followed by a judicial murder of a scarcely less atrocious character.'
'It will never, never be forgotten,' he continued, 'that this young lady has been dragged from her home and sent like a common felon - a common vagrant - to Devizes gaol. I say, therefore, that this step ought to have been taken only after the most mature consideration and after something like tangible evidence, and not upon the fact that a paltry bedgown was missing - as to which Inspector Whicher knew that it was in the house, and that Mr Foley examined it with the medical man the day after the murder, together with the young lady's drawers.' Edlin was drawing attention to the many men who had rummaged in Constance's underwear. Deliberately or not, he misunderstood Whicher's theory about how the nightgown's destruction had been disguised. If the nightgown was unstained, Edlin asked, what object could there be in removing it? He insisted that the fact of the missing nightgown 'had been cleared up to the satisfaction of everyone who had heard the evidence that day, and no doubt could remain that this little peg, upon which this fearful charge had been grounded, had fallen to the ground'.
'I say that to drag this young lady from her home in such a way and at such a time, when her heart was already harrowed by the death of her dear little brother, is quite sufficient to excite in her favour the sympathy of every man in the county, and not only that, but every man in this land of unbiased mind, who has heard - and there are few who have not heard - of this horrible murder.'
At this point both Samuel and Constance Kent succumbed to tears, and hid their faces in their hands. Edlin continued:
'The steps you have taken will be such as to ruin her for life - every hope is gone with regard to this young girl . . . And where is the evidence? The one fact - and I am ashamed in this land of liberty and justice to refer to it - is the suspicion of Mr Whicher, a man eager in the pursuit of the murderer, and anxious for the reward that has been offered . . . I do not mean to find fault with Mr Whicher unnecessarily; but I think in the present instance, his professional eagerness in the pursuit of the criminal has led him to take a most unprecedented course to prove a motive; and I cannot help alluding to the meanness - I say the indelible meanness, I may say the discredit, and I was about to say the disgrace, but I do not wish to say anything that shall leave an unfavourable impression hereafter; - but I will say the ineffable discredit with which he has hunted up two schoolfellows and brought them here to give the evidence we had heard. Let the responsibility and disgrace of such a proceeding rest upon those who have brought the witnesses here! . . . It seems to me that he has allowed himself to be strangely led away in this matter. He was baffled, and annoyed by not finding a clue, and he has caught at that which was no clue at all.'
The barrister concluded: 'A more unjust, a more improper, a more improbable case, having regard to the facts elicited in evidence, was never brought before any court of justice in any place, as far as I know, upon a charge of this serious nature, and seeking, as it does, to fix that charge upon a young lady in the position of life of Miss Constance Kent.'
Edlin's speech was much interrupted by applause from the audience. He ended shortly before 7 p.m. The magistrates conferred, and when the spectators were let back into the hall Ludlow announced that Constance was free to go, on condition that her father put up PS200, as a guarantee that she would appear in court again if required.
Constance left the Temperance Hall, escorted by William Dunn. The crowd outside fell back to let them pass.
When Constance reached Road Hill House, reported the Western Daily Press, 'her sisters and parents clasped her in the most passionate and exciting manner, embracing her most tenderly, and the sobbing and weeping and embraces were continued for a considerable time. At length, however, it subsided, and since then the young lady has presented a very subdued and contemplative demeanour.' She resumed her silence.
By any standards, Whicher's case had been weak. There were several practical reasons for his failure: he was called to the murder scene late, was thwarted by incompetent and defensive local police officers, was hurried into making an arrest, and was poorly represented in court - as he stressed in his report to Mayne, 'there was no professional man to conduct the case for the prosecution'. Samuel Kent, who in normal circumstances would have been expected to arrange the prosecution of the suspected murderer of his son, was hardly going to fund an attack on his daughter. Whicher felt sure that a professional lawyer could have better explained the theory of the missing nightdress, an
d persuaded Emma Moody to repeat what she had told him about Constance's dislike of Saville; these two things might have made all the difference. The magistrates did not need to decide on Constance's guilt, after all, but only whether there was enough evidence to justify sending her for trial.
What finally swung things against Whicher that day was Edlin's speech, his depiction of the detective as vulgar, greedy, rapacious in his destruction of a young woman's life. There was a sexual undertone, a suggestion that the policeman was a clumsy, lowerclass despoiler of a virginal innocent. The public were drawn to Edlin's analysis. Though the villagers of Road had been ready to believe that Samuel Kent's strange, unhappy adolescent children had killed their little brother, most Englishmen and women dismissed the idea as grotesque. It was almost inconceivable that a respectable girl could be possessed of enough fury and emotion to kill, and enough cool to cover it. The public preferred to believe in the detective's villainy, to attribute the moral pollution to him.
Jack Whicher's investigation had let light into the closed-up house, thrown the windows open to the air; but in doing so it had exposed the family to the prurient imaginings of the outside world. There was a necessary grubbiness to the police procedures: breasts were measured, nightclothes examined for marks of sweat and blood, indelicate questions asked of nice young ladies. In Bleak House, Dickens imagines the feelings of Sir Leicester Dedlock when his house is searched: 'the noble house, the pictures of his forefathers, strangers defacing them, officers of police coarsely handling his most precious heirlooms, thousands of fingers pointing at him, thousands of faces sneering at him'. While the crime fiction of the 1830s and 1840s had inhabited the rookeries of London, sensational crime in the 1850s had begun to invade the middle-class home, in fiction and in fact. 'Very strange things comes to our knowledge in families,' says Bucket. 'Aye, and even in gen-teel families, in high families, in great families . . . you have no idea . . . what games goes on.'