Image above: Justice Walk courtesy of Kensington & Chelsea Virtual Museum
Trigger warning – includes minor details of child molestation.
A few years back, an TV series called Garrow’s Law featured an episode loosely based on the shocking trial of Captain Robert Jones. Garrow was never involved in the Robert Jones controversy nor were the events portrayed in the TV episode exactly akin to the factual events that were played out in 1772; the writer, Tony Marchant was concerned with Garrow’s own story arc and changed the facts to mirror the counsel’s personal predicament.
The real story of Captain Robert Jones and his trial can be found on the Old Bailey website and on Rictor Norton’s website Gay History and Literature. The story of Jones, the treatment of gay men by the British justice system (the law did not prosecute lesbians) and the events of 1772 are widely covered in a number of books, articles and websites with the main focus centering solely on Robert Jones.
I was rather disturbed by this. If there was a perpetrator then there must have been a victim irrespective of whether one believes in the plaintiff’s complicity in this specific case, and for what it’s worth I do believe he was complicit to a degree. By modern standards, though, this was still rape. So what about the ‘victim’ of the 1772 trial? He is mentioned in the literature, ‘a thirteen year old boy called Francis Henry Hay’, but there is little else of any note.
So I have decided to create some balance and write what I know about Francis Henry Hay. The lad in question was the nephew of my great, great, great uncle William Mercer and William was one of the main witnesses at the trial.
I will not discuss the trial in any detail here, I will leave that for the source list at the end of this article and the aforementioned references. My main focus will be on Francis Henry Hay with the intention of balancing the available literature of the trial and hopefully ensuring less of an onus on Robert Jones.
I do not claim to know what went on in the mind of Francis Henry Hay, I have no evidence to suggest that the boy was completely innocent and a victim or was naïve and curious about a possible sexual encounter. I do know, however, something of both the Hay and the Mercer families and thought it would be interesting to reflect on their background and social standing.
If you have read my post The Abduction of Frances Mercer then you will already be familiar with the Mercer family. William Mercer was little Frances Mercer’s brother and both children were the offspring of Francis and Jane Mercer; on 30 November 1757 their other daughter Mary married Alexander Hay at St Martin in the Fields.
According to his trial testimony Francis Henry Hay was born on 31st January 1760 and had lived for sometime with his grandfather Francis Mercer before moving into his uncle William Mercer’s house at the beginning of 1772.
The Mercer family were probably of Scottish descent and linked to a number of Scottish families: the Cowies, the McKenzies, the Dewars, the Drummonds and of course the Hays. At the time of the trial, William Mercer was living at No. 1 Parliament Street, roughly where Westminster Tube is today; he later moved to Northumberland Street next door to what was then Northumberland House.
William Mercer was a jeweller by trade and his Will [1] has the appearance of a jeweller’s catalogue: a brilliant hoop ring, a handkerchief pin, a brilliant ring, a shirt pin, brilliant cluster ring, diamond ring, pearl bracelets set in gold… and the star item a watch by Mudge and Dutton. Most of these items belonged to my great, great, great aunt Sarah. William also included in the Will ‘two gold seals, one of the family arms the other my crest and cypher’ as well as portraits of William Mercer and Sarah Mercer by George Morland and two of the same by George Saunders.
On the witness stand William was asked to describe the course of events and how the assault on Francis Henry Hay was brought to the attention of the authorities. He recalled that he had notified Justice Mercer; could this have been a member of his own family?
‘Justice Mercer’ was probably George Mercer JP for Surrey and Middlesex and was said to be a descendant of the Aldie Mercers. The Aldie Mercers had links to the Mercer Elphinstone family and Margaret Mercer Elphinstone was famously painted by George Saunders.
The Hay Family
Francis Henry Hay was working in his uncle William’s shop when he met with Captain Robert Jones in St Martin’s Lane and Jones told him he had a buckle to mend. Hay went with the Captain to his lodgings to collect the buckle and Jones allegedly sexually assaulted him in the dining room.
A month or so later Jones was called to trial at the Old Bailey for the assault and Hay appeared on the stand, followed by his uncle and another future family member William George Brest. Francis Henry Hay’s father Alexander Hay did not appear at the trial and only a vague reference is made to the mother Mary who lived in Tavistock Street. Could Alexander have been dead by this date? His Will was written in 1762, but not proved until 1776 so possibly. [2] Alexander’s Will is curious because not only does he name his father-in-law Francis Mercer as sole executor, he also grants him Letter of Attorney for his freehold house in Justice Walk, Chelsea to hold for Francis Henry Hay; he also writes of several sums owed to him by various individuals, most notably the Earl of Rothes.
Intriguingly, John Leslie, the 10th Earl of Rothes was the son of John Leslie and Lady Jean Hay the daughter of the 2nd Marquess of Tweeddale. Could there have been some link between the two Hay families? Unfortunately I have not been able to answer that question.
I can only find a passing reference to Alexander’s father, but I have managed to discover the Will of his uncle, also called Alexander. [3] The senior of the two Alexander’s had acquired large amounts of East India Company stock, most of which was divided between family members at the time of his death in 1757. In particular, £30 of East India Company stock to his sister Elizabeth Hay of Dundee, Angus; sadly Elizabeth never saw a penny as she died before her brother. Alexander senior was buried at Chelsea Old Church on 15th April 1757 under pews 19 and 20!
In his Will of 1791 Francis Mercer left the house in Justice Walk to his grandson Francis Henry Hay ‘of Quebec’, so at some point the boy had fled or escaped the ramifications of the Robert Jones trial and all the controversy that followed. [4] At present we do not know if he ever returned or what happened to him.
One of the witnesses in the trial was William George Brest, he was a friend of the Mercer family and at the time of the trial a book-keeper to Mr Prater of Charing Cross. Mercer had turned to Brest in confidence to extract from the boy an account of the events at the lodgings of Robert Jones. Brest later became William Mercer’s brother-in-law and became the proprietor of an upmarket coffee house.
Amazingly, both Mercer and Brest become embroiled in another court case. This time before the King’s Bench where both defendants were called to answer allegations regarding a bond and a lottery ticket!
Hopefully, I will get to that story one day. I feel that we should know more about Francis and his fate. The court case and the huge publicity – this was the trial of the century before the Warren Hastings controversy – must have put a huge strain on the family. I only hope Francis was able to live a fulfilling and fruitful life wherever he laid his roots.
(c) 2011 Original article, rewritten with edits (2022) Mish J Holman. Do not reproduce without permission.
Links and Sources
[1] Testamentary records. England. 12 September 1808. MERCER, William. Will. Prerogative Court of Canterbury: Will Registers. PROB 11/1485. www.ancestry.co.uk
[2] Testamentary records. England. 08 July 1776. HAY, Alexander. Will. Prerogative Court of Canterbury: Will Registers. PROB 11/1021. www.ancestry.co.uk
[3] Testamentary records. England. 22 April 1757. HAY, Alexander. Will. Prerogative Court of Canterbury: Will Registers. PROB 11/829. www.ancestry.co.uk
[4] Testamentary records. England. 26 October 1791. MERCER, Francis. Will. Prerogative Court of Canterbury: Will Registers. PROB 11/1210. www.ancestry.co.uk
Robert Jones Trial 1772 – Old Bailey Online
The First Public Debate about Homosexuality in England