The Suspicions of Mr Whicher

'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 ?200, 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, and 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.