Jane Dingler had survived long enough to speak. Yet it was her very voice that was excluded from her husband’s trial. She had recounted to a magistrate the violence she had just suffered; twelve days later, she died in her hospital bed. When the prosecution sought to introduce this account into evidence, the defense objected, and the court ruled in its favor.
Here is a case that confounds our most immediate sympathies. One wishes that the victim, having had the strength to name what was done to her, might finally be heard. One wishes, too, that the accused might not be condemned upon statements he was never afforded the opportunity to contest. At the Old Bailey in 1791, these two demands collided before a man who had struck down his wife and was called to answer for her death.
The Husband’s Account
George and Jane had parted, then reconciled. According to the husband’s statements, examined by the historian K. J. Kesselring, he had conceived suspicions of infidelity and claimed their son could corroborate certain charges against her. We shall not adopt these accusations as an accurate portrait of Jane’s conduct. They serve, above all, to reveal what George wished to impress upon those who were to sit in judgment of his actions.
He had dealt her several blows with a knife. The first blade having broken against her clothing, he reportedly seized another. This detail, recorded in the study of the trial, forbids us from reducing the assault to some vague, impulsive frenzy in which the man was momentarily swept away. There was an interruption, followed by a resumption. Jane was conveyed to the hospital.
Twelve days intervened between the wounds and her death. We do not know what visitors were admitted to her bedside, nor what she expected of the care she received. A chronicle need not invent some final confidence to convey the gravity of that interval. Twelve days represent a life still lingering, hours in which the body struggles, in which one may yet hope that the next dawn will alter the course of things. The court, for its part, would be obliged to determine the frame of mind in which she had spoken.
The Magistrate at the Bedside
Her deposition had been taken under oath the very day following the attack. The magistrate’s urgency is readily understood: an injured woman might expire, and her recollection had to be preserved. The written word served to fix what an enfeebled sufferer might no longer have the strength to repeat before a jury.
Yet George was not present during this examination. He had been given no opportunity to contradict her assertions, to demand clarification, or to frame questions of his own. The document preserved a voice; it did not preserve the crucible to which that voice would have been subjected had it been tested under cross-examination. For part of the courtroom, the entire crux of the trial lay in that gulf between preserving a piece of testimony and employing it to secure a conviction.
It is easy to find such a distinction intolerable when one considers only the man who benefits from it. It is far less easy to dispense with it for him without stripping it away from others. A rule designed to shield the accused does not select its beneficiaries according to the sympathy they inspire; were it otherwise, it would become merely a privilege granted to those whose countenances appeal to our favor.
What the Dying Must Know
The declaration of a person convinced of imminent death could, under certain strict conditions, be admitted notwithstanding the impossibility of confrontation. This ancient exception rested upon the presumption that one who knew himself about to render an account of his earthly life would hesitate to depart it upon a falsehood. It was therefore not enough that the witness should be dead by the time of the trial. One was bound to examine what she believed at the very moment she spoke.
In the Dingler case, the prosecution could not bring the deposition within the bounds of that rule. Jane had suffered mortal injuries, but nothing in the record permitted her words to be treated as those of a woman who knew her end was at hand. The death that followed could not retrospectively endow her with that solemn certainty.
The prosecution maintained that the written record was the best evidence available in such an affair. The argument carried the robust force of common sense: what closer link to the victim could be offered than her own words? To this, the defense opposed another inquiry: under what conditions had those words been procured? The bench refused to permit the reading of the deposition as evidence. Jane was not branded a liar. Her testimony was simply ruled inadmissible. To those who had hoped to hear her speak, the distinction must have seemed agonizingly fine; it was, nonetheless, essential.
To Defend Is Not to Absolve
William Garrow continued George’s defense. As Kesselring observes, he did not seek to elevate the alleged infidelity into a legal justification. He challenged the drafting of the indictment and attempted to reduce the charge to a lesser degree of homicide. His efforts were unavailing: George was convicted of murder, sentenced to hang, and his body ordered to be delivered to the anatomists for dissection.
The exclusion of the document had thus not brought down the entire prosecution in its wake. This detail alters the true tenor of the scene. One might easily compose a tale of a guilty man saved by a legal quibble, or of a heroic advocate vanquishing the prejudices of the courtroom. The case refuses to be confined to either convenient mold. The defense prevailed on an important point of law and lost the trial. The court upheld a limit upon the admissibility of evidence while sending the prisoner to the gallows.
One need not harbor any sympathy for the accused to acknowledge the principle guarded by that objection. Nor is it necessary to extol the objection so far as to forget the woman whose name reaches us only through her wounds. Between these two allegiances, the reader must occupy a narrow, sober ground, where the highest intentions never dispense with the duty to examine the means.
The Second Life of a Case
More than two centuries later, the United States Supreme Court, in *Giles v. California*, recalled this ancient proceeding to trace the history of unconfronted testimony. George and Jane reappeared within a legal opinion far removed from their garret and their hospital ward. Their case was invoked to weigh the constitutional safeguards due to other accused persons, in another land.
Thus may a legal rule outlive the mortal beings who brought it into being. This is no restitution. Jane gains nothing from these subsequent debates; George will never stand again before his judges. Yet their story ceases to be merely one more instance of domestic violence and its punishment: it still compels us to examine how we dare claim to know the truth.
The victim had spoken. The court determined what it was permitted to hear. It is within the silence between those two acts, and not in some fabricated mystery devised to heighten the drama, that the haunting disquiet of this case endures.