Lordships as to Matter of Fact E. of Warwick My Lord I am advised by my Councel that he is a good Witness without a Pardon or without Burning in the Hand L. H. St. What say you Mr. Attorney to the Law now you understand what the Fact truly is Mr. At. Gen. Yes my Lord and I do apprehend with submission to your Lordship's Judgment That a Man Convicted of Felony tho' he Prays his Clergie and has it allowed him but is not Burnt in the Hand nor has any Pardon can be no Witness L. H. St. That is the Case upon which you are to form your Objections Here is a Man produced as a Witness who has been Convicted of Felony within the Benefit of Clergie has craved his Clergie has had it allowed but has not been Burnt in the Hand nor Pardoned Mr. At. Gen. Then my Lords with Humble submission upon the Matter of Fact so stated I make this Objection That he is no Witness in point of Law He has been Convicted in one Respect for the very Offence for which the Noble Lord the Prisoner at the Bar stands Indicted tho' not in the same Degree as the Indictment sets it forth yet it is for the same Fact Upon this Indictment Mr. French was Indicted at the Sessions at the Old Baily and there he was found Guilty of Man-slaughter upon which he Prayed the Benefit of his Clergie which was allowed him but he was not Burnt in the Hand thus stands the Case in Fact Now my Lords the allowance of Clergie of it self does not discharge the Party from the Offence so far as to set him Rectus in Curia and make him in all Respects a Person fit to have the benefit and priviledges of a Probus Legalis Homo till he has past through those Methods of setting himself Right in the Eye of the Law that the Law hath prescribed and in order to set this matter in its true Light before your Lordships it will be necessary for me to open to your Lordships as far as I can the Nature of this Benefit of Clergie and what advantage did accrue to the Party by having that Benefit allowed him and likewise what Benefit he had by the Act that Enacted the Burning in the Hand which was the Statute of 4. Hen. 7. And by that Act the Burning in the Hand was to be of no more effect but only to shew that he had had his Clergy allowed him that unless he were within Orders he should have it no more than once Before that Act of Parliament a Person might have had the Benefit of Clergie several times but that Act limits it as to time that it shall be but once and therefore in order to the having of it known whether a Man once had his Clergie allowed him that did not produce his Orders that Act provides there shall be a mark set upon him at the time of the allowance of this Clergie as a Token that it was allowed him and he was never to have it allowed afterwards but even at that time he was to be delivered over to the Ordinary to make his Purgation but since that Act several Statutes have been made about this Matter I shall mention one that relates to your Lordships and that is the Statute of Edward the 6th which indeed does Enact That in Case where a Peer is Convicted of Felony within the Benefit of Clergie he shall be Discharged without being Burnt in the Hand but then and thus the Law stood till the Statute of 18 Eliz. Cap. 7. by which 't is Enacted That after the Burning in the Hand the Prisoner shall not be delivered to the Ordinary but he shall be discharged by virtue of which Act after Burning in the Hand the Prisoner hath made full Satisfaction to the Law without that sort of Purgation which was before requisite to be made but till he be Burnt in the Hand or has his Pardon he is not to be Discharged it may be he may be Bailed out by the Judge in order to get a Pardon but still he remains in statu quo as to his being a Witness or any thing of that nature his Credit is gone till it be restored by the King's Pardon or his undergoing the Punishment that the Law requires and no Man would say that where one lies under a Conviction of Felony undischarged by Burning in the Hand or Pardon that he can be a Witness he remains just as he was before the Conviction remains upon him which disabled him to be a Witness and that we submit to your Lordships as the Case of this Person Capt. French Mr. Sol. Gen. My Lords if your Lordships please to spare me one Word of the same side sure at Common Law there would be no difficulty at all that a Person Convicted of Felony within the benefit of Clergy unpardoned and undischarged could be no Witness and since those several Statutes that have been mentioned by Mr. Attorney unless there be an actual Burning in the Hand or a Pardon for that Burning in the Hand sure it cannot be pretended that one Convicted of Felony can be admitted as a Witness If my Lord of Warwick does insist upon his Evidence a Matter of Right we for the King do insist upon it that there is no Right at all in the Case for French must be taken to be one Convicted of Felony and not discharged without either Burning in the Hand or Pardon and then we are sure it cannot be pretended in Law that he can be a Witness L. H. St. My Lords the King's Councel have Stated their Objection what is your pleasure to have done in it E. of Rivers I suppose my Lords that it will be necessary to hear what Answer my Lord of Warwick gives to this Objection L. H. St. Is it your Lordships pleasure then that the Councel assigned for my Lord Warwick be heard what they have to say to this Matter Lords Ay Ay Ay. Then Sir Thomas Powis came to the Bar and stood by the Earl of Warwick and spoke thus Sir T. Powis May it please your Lordships I am by the Order of this Honourable House Assigned of Councel for this Noble Lord at the Bar in Point of Law and my Lords as to the present Question that has been spoken to by the King's Councel I am a little surprized to hear it should be wondered at that my Lord of Warwick should insist upon it that this Gentleman should be Examined for him as a Witness because with humble Submission to your Lordships I think the Authorities of Law will make for the Opinion on the other side Mr. Attorney General says true the first Statute that was made for Burning in the Hand was that in 4 Hen. 7. before that time the Benefit of Clergy even for Murder was used to be allowed upon the Prayer of the Party and he was thereupon delivered over to the Ordinary to make his Purgation and that not only once but toties quoties
let him demand it as often as he would and as often as he offended it was allowed This was thought such a Priviledge as ought to be restrained that Statute of the 4th of Hen. 7. takes notice that an ill use was made of it and therefore does ordain That it should be allowed no more then once unless to Persons within Orders And as a Means to know whether it had been before allowed or not the Act does direct that the Party Convicted shall be Burnt in the Hand that is all the Act does appoint it does no otherwise alter the Case it does not impose it upon the Party as a Punishment for the Offence but only as a Mark of Distinction that if ever he came again before the Court and being Convicted of the like Offence should pray the Benefit of Clergy then upon Inspection it might be known whether before he had been allowed his Clergie or not and so stood the Law without alteration as to the manner of delivery of the Criminal over to the Ordinary to make his Purgation with which the Temporal Law in the manner of doing thereof did not intermeddle and therein consisted with respect to this Matter the Benefit of Clergie Afterwards by the Statute of Edward the 6th the Peers were exempted from the Burning in the Hand and then comes the Act that we rely upon vvhich is that of the 18 Eliz. that takes notice of the former Act of 4 Hen. 7. vvhich only ordered the Burning of the Hand for the purposes aforesaid but left the Party to be delivered over to the Ordinary to make his Purgation vvhich vvas found to be a Matter attended vvith many Abuses and upon the Reformation thought fit to be abolished and taken away because it was only an outward appearance and shew of Purgation and was often the occasion of very great Perjuries therefore it is taken totally away and by this Act the Party shall have the Benefit of Clergie without making Purgation as fully as if he had actually made it But say they There is still left something that the Law requires which is That he should be first Burnt in the Hand and if he be not Burnt in the Hand or at least Pardoned he is not in that Condition that the Law calls for in such a Case to set him Rectus in Curia If he be Burnt in the Hand or Pardoned by the King they agree on the other side that he may be a very good Witness My Lords that Act of Parliament of Queen Eliz. does impower the Court that Tries the Criminal and before whom he is Convicted not only to Burn him in the Hand pursuant to the Act of Hen. 7. but also to detain him in Prison for a year after but yet I think that doth not signifie any thing one way or other to restore him or not restore him to his Credit for I think the Burning in the Hand which is a Mark of Infamy was never intended as a Means any more than Imprisonment for a year of Restoring a Man to his Credit it was only to shew he had his Clergie once and should have it no more The allowance of Clergie by the Statute of Eliz. operates as a Pardon only saith the Statute he shall not be delivered out of Prison before he is Burnt in the Hand according to the Statute of Hen. 7. No body can say that the continuing in Prison for a year which the Court may order though Burnt in the Hand would as to restoring of Credit have operated one way or other but that we insist upon is That the allowance of Clergie sets him right in Court since Purgation is abolished and is the same thing as if he had undergone the Ceremonial parts of a formal Purgation It is the allowance of Clergie that makes the alteration or operation in this Case by virtue of this last Act of the 18th of Eliz. for we take it that he is to have the same Benefit of his Clergie as is if he had been delivered to the Ordinary and Purgation had been made and now the allowance of Clergie by this Act gives the same benefit to the Party as Purgation would have done before the Act and he is in the same State and Condition as he would have been in Case of a Purgation or of a Pardon by the King The Authorities are all with us there is a Case that is very well known among the Men of the Law in the Fourth Report of My Lord Cooke Holcroft's Case who was Indicted and Convicted of Manslaughter and he prayed the Benefit of his Clergie The Judges thought fit to respite their Judgment therein but his Prayer was entred upon Record And then an Appeal being brought against him it came to be a Question how far he had had his Clergie for by the Stat. of the 3d of H. 7. an Appeal will lie notwithstanding a Conviction if the Party have not had his Clergie and in this Case it was adjudged that the Party having prayed his Clergie he should have the same benefit as if the Court had ordered every thing to be actually Executed which ought thereupon to be done and surely then it can be no Question whether a Man shall be a Witness or no who has had his Clergie allowed It is so entred upon Record that the Book was administred to him and that he read as a Clerk for the Party has done as much as he can prayed the Benefit of his Clergie and had it allowed and so it is entred upon Record The Respiting of the Burning of the Hand till the King's Pardon be obtained shall not sure put him in a worse Condition than he would have been if he had actually been Burnt in the Hand My Lords I have in my Hand a Book which is of very great Esteem and that is The Reports of My Lord Chief Justice Hobbart wherein he declares his Opinion in this Point and for whose Opinion every one of our Gown ever have testified a very great Veneration and Respect The Case is that of Searle and Williams wherein my Lord Hobbart has spoken so fully to this Matter that I think it ought to put an end to the Question He says the Stat. of Eliz. appointing the Burning in the Hand without Purgation does operate as a Statute Pardon to all intents and purposes and the Party having now the Benefit of his Clergie allowed is in all respects in the same Condition as if he had been acquitted That is the Opinion that he holds throughout that Case I need not trouble your Lordships with Reading all the particular Words that he uses but only those which relate to the thing now in Question Immediately before your Lordships he delivers his Opinion That whosoever speaks Words of Accusation reflecting upon a Man for any Offence for which he was Indicted and Convicted and had had his Clergie allowed an Action lies as if he had been totally acquitted from it 'T is not the Burning
far as to grant a Privy Seal for the Pardon of the Burning in the Hand But your Lordships very well know and it cannot be insisted on to the contrary by the Councel on the other side That it is no Pardon until it be past under the Great Seal of England So that here is no actual Pardon nor is the bare allowance of Clergy without Burning in the Hand equivalent to a Pardon My Lords it must be agreed That at the Common Law Persons that were convicted of Felony were not restored to their Credit meerly by allowing the Benefit of Clergy to them there was something further to be done to regain Credit the Party convicted must undergo another Trial before the Ordinary which was commonly called Purgation when any Man was convicted of Felony he was upon his Prayer of the Benefit of Clergy to have it allowed to him and if he could Read as a Clerk his Life was saved He was not discharged of the Felony and therefore was delivered over to the Ordinary to be kept in Prison until he had by a sort of Trial before the Ordinary made his Innocence appear and purged himself of the Fact charged upon him and if he could not make his Purgation he was to lie perpetually in Prison and notwithstanding the allowance of Clergy and delivery over to the Ordinary yet was not the Credit restored nor his former Capacities he was not a legal Witness until he had purged himself of the Crime It was the clearing themselves of the Guilt that restôred such Persons to their Reputation and Credit not the bare allowance of Clergy Some Criminals were delivered to the Ordinary generally those might make their Purgation others were specially delivered or delivered with a special Charge to the Ordinary not to admit them to Purgation Absque purgatione facienda These latter could never be restored to Credit except by the King's Pardon for the Liberty of Purgation which was the means of regaining their Credit was taken from them their Guilt occasioned their loss of Credit taking away that Guilt doth consequentially restore Credit again and this Benefit of Clergy was to be allowed as often as any Man had occasion for it Thus the matter of Benefit of Clergy stood in Common Law in respect of Purgation and restoring of Credit till the Stature of 18 Eliz. c. 7. which was cited on the other side by Sir Thomas Powis by which Statute Purgation is absolutely taken away and set aside And the Party being Burnt in the Hand according to the Statute of 4 H. 7. is appointed by this Statute 18 Eliz. to be discharged and not to be delivered over to the Ordinary as was before that time used The delivering over to the Ordinary was in order to Purgation and that by the last Statute is quite taken away and the Party is to have the same Benefit by the having the Benefit of his Clergy and Burning in the Hand as if he had made his Purgation he shall be discharged It is not his Reading as a Clerk and that pronounced by the Ordinary that gives him the Benefit of a Discharge as if he had been prâ—â—â—â— of the Crime but there must be the Burning in the Hand that is the very Terms of the Statute upon which he is to be discharged that must actually be done before he can be put into the same Condition that he was in before the Conviction and consequently make him capable of being a Witness As for the Case of Searle and Williams that was cited by Sir Thomas Powis that Case doth not oppose in this matter there it was not needful to Burn the Person convicted he was a Clerk in Holy Orders and by Law exempt from Burning in the Hand so it was not needful to Burn him the Statute of 18 Eliz. not requiring any Person to be Burned in the Hand that were not so liable before then The most that is said in that Case by the Chief Justice Hobbart is That in case where the Hand ought to be Burnt it is not essential but the Party may have the Benefit of the Statute i. e. be discharged without Burning and the King may pardon the Burning and no doubt if the King pardons the Burning it is as good and effectual as if the Hand had been actually Burnt The King might parâ—â—n the whole and consequently any part the Pardon of the Punishment supplies the Effect of it no question but a Pardon may supply the want of Burning in the Hand Chief Justice Hales in his Book of Pleaâ— of the Crown Fol. 240 which I have here says expresly That Burning in the Hand is now since the Statute 18 Eliz. the Consequent upon the allowance of Clergy which hath this Effect First it enables the Judges to deliver him Secondly â—e restoâ—â—â— him to former Capacities Thirdly It restores him to his Credit and so it puts him in the same Condition as if he were acquitted What is it that hath this effect Tho' Allowance of Clergy and Burning in the Hands There is not 〈◊〉 be an Allowance of Clergy till all be done which is required by Law The Law requires that the Party be Burnt in the Hand or that the King do 〈◊〉 the Burning in the Hand before the Party be discharged and with humble Submission it was never yet pretended that any Person could have the full Advantage of the Benefit of Clergy since the Statute of 4 H. 7. till he was Burnt in the Hand or the Burning in the Hand was pardoned Now my Lords to apply this to the 〈◊〉 in Question it is on all Hands admitted That Mr. French was convicted of Felony and Manslaughter and is neither Burnt in the Hand nor pardoned but he has prayed 〈◊〉 Benefit of the Clergy and has had the Book given to 〈◊〉 to try if he can Read and he certified he can Read this is all that is done I think it cannot be pretended he ought to be discharged until he is Burned in the Hand or that Burning pardoned as the Act requires and if the Reading as a Clerk without Burning in the Hand or pardon of it be not sufficient in Law to entitle him 〈…〉 discharged Why should it be sufficient to restore his Credit 〈◊〉 whole together works the Discharge and restores the Party In the Case of Burroughs and 〈◊〉 that has been cited there a Man was convicted of Manslaughter and prayed his Clergy the Court did not allow his Clergy but did advise upon it This was held sufficient to â—â—r an Appeal for if Clergy had been allowed it had clearly been a good Bar and the Act of the Court in Advising upon the Peayer and not allowing Clergy where it ought to be shall not prejudice the Party convicted but he shall be in the same state as if the Clergy had been actually allowed But that has no likeness to the Case now before your Lordships for here it is not pretended that Mr. Frenth ever desured to be Burnt in
spec eis superius separatim impoit sint quiet Et eant quilibet eorum sit quiet eat inde sine die c. Et superinde statim separatim per Cur. hic quesit est de prefat Rico. French Rogero James Georgio Dockwra si quid pro se habeant vel dicere sciant vel aliquis eorum aliquid pro se habeat vel dicere sciat quare Cur. hic ad Judicium executionem de eis eorum quolibet super Veredicto pred quoad Homicidium felonicam Interfectionem prefat Rici Coote procedere non debet Qui separatim dicunt qd ipsi sunt Clerici Et quilibet eorum est Clericus Et separatim petunt Beneficium Clericale eis cuilibet eorum in hac parte allocari Et super hoc tradito eisdem Rico. French Rogero James Georgio Dockwra separatim per Cur. hic Libro iidem Ricus French Rogerus James Georgius Dockwra separatim legunt ut Clerici quilibet eorum legit ut Clericus Sed quia Cur. dci Dni Regis hic prefat Justic dci Dni Regis ult noiat de Judicio suo de super Premissis pred quoad Homicidium pred felonicam Interfectionem prefat Rici Coote reddend nondum advisantur Ideo dies inde dat est prefat Rico. French Rogero James Georgio Dockwra in statu quo nunc c. usque prox Gaote deliberationem dci Dni Regis de Newgate pred pro Com. Midd. pred tenend de Judicio suo de super Premssis illis audiend c. Eo qd prefat Justic dci Dni Regis ult noiat Cur. hic inde nondum c. Lord High Steward Is it your Lordships Pleasure that the Judges may be Covered Lords Ay Ay. Then the Judges put on their Caps Clerk of the Crown Serjeant at Arms make Proclamation Serjeant at Arms. O Yes O Yes O Yes Chief Governor of the Tower of Dondon bring forth the Body of Edward Earl of Warwick and Holland your Prisoner forthwith on Pain and Peril will fall thereon Then the Earl of Warwick was brought to the Bar by the Deputy Governor of the Tower of London having the Ax carried before him by the Gentleman Jaylor who stood with it at the Bar on the Right Hand of the Prisoner turning the Bdge from him The Prisoner at his Approach to the Bar making three Bows one to his Grace the Lord High Steward the other to the Peers on each Hand and his Grace and the Peers returned the Salute Lord High Steward My Lord of Warwick your Lordship is brought before this great Judicature in order to your Tryal You stand Indicted by the Grand Inquest for the County of Middlesex as Guilty of the Murder of one of the King's Subjects for whose Blood Justice requires a strict Inquisition should be made Your Lordship is call'd to Answer this Charge before the whole Body of the House of Peers Assembled in Parliament It is a great Misfortune to be Accused of so Hainous an Offence and it is an addition to that Misfortune to be brought to Answer as a Criminal before such an Assembly in Defence of Your Estate your Life and Honour But it ought to be a support to your Mind sufficient to keep you from sinking under the Weight of such an Accusation that you are to be Try'd before so Noble Discerning and Equal Judges that nothing but your own Guilt can hurt you No Evidence will be received but what is Warranted by Law No Weight will be laid upon the Evidence but what is agreeable to Justice No Advantage will be taken of your Lordship's little Experience in Proceedings of this Nature Nor will it turn to your Prejudice that you have not the assistance of Councel in your Defence as to the Fact which cannot be allowed by Law and their Lordships have already assigned you Councel if any Matters of Law should arise Your Lordship throughout your whole Tryal may assuredly promise your self to find all the Candor and Compassion which is consistent with Impartial Justice beyond that nothing is to be expected Their Lordships can never so far forget themselves as to depart from what is right and to draw the guilt of Blood upon their own Heads but if your Lordship is Innocent you are safe My Lord It will be requisite for you to recollect your self upon this Occasion in the best manner you can You ought to hear with Temper what the King's Councel have to say without interrupting them and to hearken Carefully to the Witnesses produced against you that you may be ready to cross Examine them if you find cause and to make your Observations upon the Evidence when the proper time comes for your Lordship to make your Defence of which I will not fail to give you Notice and when that time does come your Lordship may be assured your self and your Witnesses will be heard with great Patience and Attention and when my Lords have Heard and Considered the whole Matter the Judgment will unquestionably be according to the Rules of Justice and such as will become the Honour of this High Court. Read the Indictment to my Lord. Earl of Warwick My Lord I beg I may have the use of Pen Ink and Paper L. H. Steward Will your Lordships please to allow my Lord Warwick Pen Ink and Paper Lords Ay Ay. L. H. Steward Carry Pen Ink and Paper to my Lord which was done by the Clerk L. H. Steward My Lord your Lordship will do well to give Attention while the Indictment is Read to you Read it to my Lord in English Clerk of the Crown YOur Lordship Stands Indicted by the Name of Edward Earl of Warwick and Holland late of the Parish of St. Martin in the Fields in the County of Middlesex for that your Lordship together with Charles Lord Mohun Baron Mohun of Oakehampton in the County of Devon late of the Parish aforesaid in the County of Middlesex aforesaid Richard French late of the Parish aforesaid in the County of Middlesex aforesaid Gent. and George Dockwra late of the Parish aforesaid in the County of Middlesex aforesaid Gent. not having the Fear of God before your Eyes but being moved and seduced by the Instigation of the Devil the 30th day of October in the Tenth Year of the Reign of our Sovereign Lord William the Third by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. with Force and Arms c. at the Parish aforesaid in the County of Middlesex aforesaid in and upon one Richard Coote Esq in the Peace of God and of our said Sovereign Lord the King then and there being Felaniously Voluntarily and of your Malice afore-thought did make an Assault and that your Lordship the said Edward Earl of Warwick and Holland with a certain Sword made of Iron and Steel of the value of 5 s which you the said Edward Earl of Warwick and Holland in your Right
my Lord of Warwick's Sword Did you take any notice of Mr. French's Sword Goodall No indeed I was busie about the Affairs of the House I did see my Lord of Warwick's Sword but that was by chance and it was bloody at the Hilt and upon the Blade but whether it were all over bloody indeed I cannot tell Mr. At. Gen. I desire to ask him Whether he can tell who brought in Mr. Coote's Sword thither Goodall Indeed I cannot L. H. St. Mr. Attorney General have you any more Questions to ask him Mr. At. Gen. No my Lord not I. L. H. St. My Lord Warwick Will you ask him any Questions E. of Warwick No my Lord. L. H. St. Mr. Attorney Who is your next Witness Mr. At. Gen. My Lord our next Witness is Mrs. A. Goodall this Man's Wife Who was Sworn L. H. St. What Questions do you ask this Gentlewoman Mr. At. Gen. I desire that she would acquaint your Lordships Whether she was at the Bagnio in Longacre when my Lord of Warwick and Capt. French came in A. Goodall I was there when my Lord of Warwick came in Mr. At. Gen. Was Capt. French with him A. Goodall Yes Capt. French was with him Mr. At. Gen. About what a Clock was it that they came there A. Goodall It was about Two a Clock as near as I can remember Mr. At. Gen. In what Condition were they when they came in pray A. Goodall Mr. French was very much wounded Mr. At. Gen. Pray How was my Lord of Warwick A. Goodall My Lord had his Sword in his Hand and it was very bloody both at the Hilt and upon the Blade Mr. At. Gen. Did you observe any Wound that my Lord had A. Goodall I think to the best of my remembrance my Lord had his Hand wrapped up in a Handkerchief which was bloody but I was busie up and down in the House and I cannot so well tell what Hand it was I was indeed up and down there while they were there Mr. At. Gen. Do you knovv of any Orders that vvere given by my Lord of Warwick to be Concealed vvhile he vvas there A. Goodall He did desire the Door might not be opened to any body that asked for him and that it might not be said that he was there and when the other Two Gentlemen came to the Door he went to the Door himself and when he saw who they were he ordered them to be let in Mr. At. Gen. What was the Occasion of his going to the Door himself A. Goodall There was a Knocking at the Door and he had a mind to know who it vvas and vvhen it did appear it vvas Mr. Jâ—mes and Mr. Dockwra he himself ordered them to be let in Mr. At. Gen. Hovv came the Door to be open to them A. Goodall Indeed I think he opened it himself Mr. At. Gen. Hovv long vvas that after he and Capt. French came in A. Goodall It vvas about half an hour Mr. At. Gen. When they first came in What posture vvere they in had they any Svvords in their Hands A. Goodall I did not positively take notice vvhether they had any Svvords in their Hands nor vvhat they had vvhen they came in Mr. At. Gen. What became of them afterwards A. Goodall My Lord Warwick Mr. James and Mr. Dockwra went away within a little while and my Lord of Warwick ordered particular Care to be taken of Mr. French as his Friend and he was put to Bed after his Wounds were Dressed but I cannot tell what afterwards became of my Lord Warwick and the other Gentlemen Mr. At. Gen. I think you were saying that my Lord of Warwick was wounded in the Hand Which Hand was it A. Goodall I cannot positively say whether it was the Right or the Left L. H. St. Will you who are of the King's Councel ask this Witness any further Questions Mr. At. Gen. No my Lord we shall ask her no other Questions E. of Warwick No my Lord nor I. Mr. At. Gen. Then our next Witness is Henry Amy who is a Surgeon and lives at the Bagnio in Longacre and he will give your Lordship an Account what passed within his Knowledge at this time within his House and who came thither Wounded and what particular Care was ordered to be taken of Mr. French and by whom Mr. Amy was Sworn Mr. At. Gen. I desire you will give an Account to my Lords what happened at your House early in the morning the 30th of October last Amy. The 30th of October last about Two of the Clock I was knock't up out of my Bed to Attend two Gentlemen my Lord Warwick and Capt. French who came then into my House Mr. At. Gen. In what Condition were they Amy. They were both Wounded Mr. French very much and my Lord of Warwick in his Hand Mr. At. Gen. Did you see any Swords Amy. Yes they had both Swords in their Hands and my Lord of Warwick's Sword was very bloody Mr. At. Gen. Well Sir when they came into your House What Directions was given by my Lord Warwick Amy. He gave Directions if any body should ask for him they should say he was not there Mr. At. Gen. Did any body come and ask for him Amy. While we were taking Care of Mr. French and Dressing his Wound there were some Persons came and knocked at the Door and my Lord of Warwick did Order that no body should be let in but he himself went to the Door and when he found that it was Mr. Dockwra and Mr. James my Lord Warwick ordered that they should be let in Mr. At. Gen. Pray Tell my Lords what followed after that Amy. After we had Dressed Mr. French Mr. At. Gen. By the way Was there any particular Directions and by whom to take Care of Mr. French Amy. Yes my Lord Warwick desired me to take Care of him as his Particular Friend Mr. At. Gen. Well then after you had Dressed Mr. Frenche's Wound what happened Amy. I Dressed my Lord Warwick's Wound Mr. At. Gen. Pray Whereabouts was my Lord of Warwick's Wound Amy. It was near the first Joynt of his Fore-finger Mr. At. Gen. Pray How long did they stay there Amy. After Mr. Dockwra and Mr. James came in and my Lord's Hand was Dressed they stayed a little while and they Three went away Mr. At. Gen. What was said when they went away Amy. My Lord of Warwick desired to have great Care taken of Mr. French and they said Now let us go away and they went away Mr. At. Gen. Pray What time did they stay in your House Amy. When they went away I think it was about half an hour after they first came in Mr. At. Gen. Did you take notice of no Sword but my Lord of Warwick's Amy. No not then Mr. At. Gen. Did you afterwards Amy. Afterwards in the morning Mr. French called for his Sword and I looked upon it Mr. At. Gen. Pray in what Condition was his Sword was it bloody Amy. It
H. St. What does your Lordship ask her E. of War What she remembers passed at her House about my Sword or any thing Mrs. Amy. My Lord when I came into the Room where my Lord of Warwick and Captain French were in our House I stood by Captain French while his Wounds was dressing and I saw my Lord of Warwick's Sword and looked upon it and the Hilt and all the Shell was full of Blood and it run down to the Bottom of the Sword Blade E. of War I desire she may be asked how soon that was after my coming in Mrs. Amy. It was in a quarter of an Hour after my Lord came in E. of War I desire she may speak what sort of Sword it was at the Hilt whether it were Open or Close Mrs. Amy. Indeed I cannot say but the Hilt was full of Blood the Shell of it and it run down to the Bottom of the Blade L. H. St. Has your Lordship done E. of Warwick My Lord I would only take notice that the Three Gentlemen that were on the other side were Tryed at the Old Bailey and found Guilty only of Man-slaughter but now I being on his side and not having any Malice to him but always a great deal of Friendship I submit it to your Lordships whether I can be thought any ways Guilty of his Death and I humbly hope your Lordships will hear my Councel if you make any Doubt of that L. H. St. What is it your Lordship would have Councel heard to E. of War To this Case my Lord Whether there being Six Persons Three of a side one is killed and I being Engaged on the side of him that was killed the Three of the other side have been Tryed for the death of that Man whether I who was of his side be equally Guilty with them who were on the other side especially I engaging particularly with another of the Three that were of the other side That Question I desire my Counsel may Argue whether I be equally Guilty with them that were on the other side and who notwithstanding Death hap'ned in the Case yet were found Guilty only of Man-slaughter L. Godolphin My Lords it has been moved by my Noble Lord at the Bar that his Counsel should be heard about Mr. French's being Witness whether he should be a Witness or no I think it would be much for the clearing of the Fact one way or other if the Evidence of that Witness could be heard but whether he can be heard or not according to Law is a Question that must be debated amongst your Lordships after your Lordships have heard the Councel on both sides and perhaps the Opinion of the Judges upon their Arguments and therefore I think we must Adjourn to Consider whether this Matter shall be Argued or no L. H. St. What say you to this Matter Mr. Attorney Mr. At. Gen. My Lords I should agree with the Motion that is made if there were any thing insisted upon by the Prisoner at the Bar that would bear a Question or Argument but my Lord of Warwick himself has waved the Objection and so I think there is no need for any Argument on our side L. Godol I would agree with the Motion that was made for Adjourning in order to Debate but I desire to be thus understood if he thinks it for his advantage that this Witness should be heard for him which he knows best whether it be or be not then I do suppose your Lordships will Adjourn to Consider of it in your own House amongst your selves it will not be proper to enter into the Debate here nor there neither till you know what Objection the Councel for the King make against this Man's being an Evidence and therefore we would know it is fit to be known whether my Lord 's waving or not insisting upon this Man's Testimony be free and voluntary and absolue or whether it be only in respect to the trouble it may put the House to for the Debate L. H. St. My Lord Warwick some of my Noble Lords observe you have desired Mr. French should be examined and that your Councel may be heard to that point Whether he be by Law a Witness or not several of my Lords think it reasonable Councel should be heard whether he be a Witness or not or at least that that Question should be consider'd amongst themselves if insisted upon therefore your Lordship is to Declare whether you do insist upon it or desire to wave it E. of Warw. I wholly submit my self to your Lordships but as I am advised by my Councel I hope he is a good Witness and I desire my Councel may be heard to that point Mr. At. Gen. My Lords in truth I acknowledge according to the method of Law the Objection ought to come of our side but I think we have very good reason to oppose that Gentleman being a Witness in this Case even upon that Objection which my Lord has made himself upon the Consideration that he has been found Guilty of Man-slaughter for the Death of this very Person It is true upon his Prayer Clergy was allowed him but the burning of the Hand was respited and he was not Burnt in the Hand and he is not Pardoned and how far he can be a Witness in this Case is the Objection If a Man Convicted of Felony that is within Clergy Prays his Clergy and it is allowed him but he is not Burnt in the Hand nor Pardoned we apprehend he is no Witness and that is the Objection we make against his Testimony to your Lordships L. H. St. My Lord Warwick you hear what is said by way of Objection against this Man's being a Witness What say you to it E. of Warwick For matter of Law my Lords I am not capable of speaking to it but I desire my Councel may L. H. St. That which Mr. Attorney proposes by way of Objection is Matter of Fact and the Matter of Law does not arise till the Fact be settled which must fall within your Lordships own Knowledge who produce him as a Witness and therefore you must Answer to that Fact your self E. of Warwick I desire to know of your Lordships if a Man be Convicted of Felony that is within Clergies and Prays his Clergie and it is allowed him but the Burning of the Hand is respited and there is a Warrant for his Pardon whether he cannot be a good Witness that his Clergie was allowed and the Burning of the Hand respited I have the Record here to shew L. H. St. My Lords my Noble Lord at the Bar insisting upon a Warrant for a Pardon I must acquaint you with something that has happened during your Lordships Sitting here this day Since I came hither a Privy Seal was delivered to me in order to pass a Pardon for the Burning in the Hand of Mr. French for the Man-slaughter for which he was Convicted at the Old Baily so far I can acquaint your
in the Hand but the Allowance of Clergie that sets him right in his Credit in the Eye of the Law and he is thereby in the same Condition in that respect that he would have been if he never had had any Conviction upon him Towards the end of the Case his very Words are these Though the Statute saith after Burning in the Hand according to the Statute in that behalf made he shall be discharged and there is no Burning in the Hand that makes nothing for though it be a Case where the Hand ought to be Burnt yet it is not so essential but a Man may have the Benefit of the Stat. though he be not Burnt the King may pardon the Burning for the Burning even in an Appeal is no part of the Judgment nor so much as in the Nature of Punishment but rather a Mark to notifie that he may have his Clergie but once These are his very Words in this Case so that the Statute of Queen Eliz. doth abolish Purgation but gives the Party all the Benefit thereof as if he had gone through it and instead of delivering the Party to the Ordinary to make his Purgation it says he shall be delivered out of Prison but lest it might seem to Repeal the Statute of Hen. 7. as to Burning in the Hand it adds being Burnt in the Hand according to the Statute in that behalf provided By the Statute of Hen. 7th he was first to be Burnt in the Hand and then delivered to the Ordinary to make his Purgation but by the Statute of Eliz. he is first Pardoned his Crime by being allowed the Benefit of his Clergie without making his Purgation and afterwards to be Burnt in the Hand before he be delivered out of Prison so that the Burning in the Hand is only a Condition precedent to his getting out of Prison not to his being restored to his Credit The King may Pardon the Burning in the Hand undoubtedly and he has gone a great way in this Case for he hath given a Pardon as far as the Privy Seal and that is sufficient to shew his Gracious Intention of Pardoning it throughout and if there be need we hope it may pass yet forward What we insist on is not only the Opinion of my Lord Chief Justice Hobbart but he is followed therein by the Opinion of a Man of very great Authority one no less Eminent than he in his Profession and that is my Lord Chief Justice Hale in a Book of his that is Intituled His Pleas of the Crown which is but an Abridgment of what he intended upon that Subject under the Title of Clergy when he comes to treat of the Consequences of the allowance of Clergy and what the several Effects of Clergy allowed shall be he says it gives him a Capacity to purchase Goods and retain the Profits of his Lands and restores him to his Credit according to the Case I have mentioned before in Hobbart of Searle and Williams for that Case is particularly in that Book mentioned and referred to Therefore I hope your Lordships will make no difficulty of Hearing this Witness for we think the having his Clergy allowed him is that which restores him to his Credit If they have any other Objections against him I hope we shall hear it from the King's Councel But if this be stood upon in point of Law as an Objection That though Clergy was allowed he was not Burnt in the Hand nor pardoned I would have observed to your Lordships That my Lord High Steward has told you it is so far gone towards the Pardon that the King has shown his Intention to pardon by the Privy Seal and we hope your Lordships will not let this Noble Lord at the Bar suffer any Prejudice by the not perfecting of the Pardon by actual passing of the Great Seal L. H. St. Mr. Attorney General what say you to the Matters which have been urged Mr. At. Gen. My Lord we have stated our Objection we think there is nothing given as an Answer to it and we submit it to your Lordship's Judgment Marq. of Hallifax My Lords I desire that the Question that is to be decided before your Lordships may be settled truly what it is L. H. St. If there be Six in Company and one of them is killed the other Five are afterwards indicted and Three are Tried and found Guilty of Manslaughter and upon their Prayers have their Clergy allowed and the Burning in the Hand is respited but not pardoned Whether any of the Three can be a Witness upon the Trial of either the other Two Sir T. Powis My Lords with Submission though he were convicted of the Felony yet upon Prayer of his Clergy that being allowed him That restores him to all the Capacities we say that he had before the Conviction and particularly to his Credit and for that we submit our solves to your Lordships Judgment Marq. of Hallifax I suppose your Lordships will have the Opinion of the Judges upon this Point and that must be in the presence of the Prisoner L. H. St. It must certainly be in the presence of the Prisoner if you ask the Judges Opinions Marq. of Hallifax But in these Cases my Lords it is usual to hear the King's Councel to make a Reply I desire to hear what they would say to what has been offered by the Councel for the Noble Lord the Prisoner at the Bar. Mr. Serj. Wright My Lords I did apprehend that the very stating of the Objection would have set this matter in its true light For the first place it is agreed on all hands That this Mr. French that is desired to be a Witness does stand convicted of Felony and by the Law of England while that Conviction remains upon him till he be either purged or pardoned he cannot be a Witness By the Conviction his Credit is lost and till he be restored to his first Condition he stands not so clear in the Eye of the Law that he can be an Evidence The Councel for the Prisoner have objected That if he either be pardoned or Clergy allowed he is put in the same Condition as if he had been acquitted My Lords I must admit a Pardon restores to Credit and I must likewise admit That allowance of the Benefit of Clergy and Burning in the Hand upon it amounts in Law to a Pardon or is equivalent to a Pardon in this matter But the Fact here is not so for here is neither actual Pardon nor-any Burning in the Hand The Benefit of Clergy was prayed and allowed but that alone is not sufficient there must be an actual Burning in the Hand or a Pardon of that Burning in the Hand otherwise it cannot be a Satisfaction in Law such as should put him in the same Condition as if he were acquitted Your Lordships have heard what was said by his Grace my Lord High Steward That as to the Burning in the Hand the King has been pleased to proceed so
he lay and where I saw him he had a hurt in his Hand and it was layd open it was in the Finger and that he said was all he got by endeavouring to part people from Fighting Mr. Attorney General Pray Sir when was this Witness It was several Days after the death of Mr. Coote Lord High Steward I told your Lordship before that in Point of Law such Evidence would signifie nothing because your declaring any matter after the thing was done in relation to the Fact could not be admitted as legal Evidence if any of my Lords be of another Opinion I suppose they will declare it Lord Mohun My Lords I submit it to your Lordships I only desire he may be askt whether he saw my Hand or no and how it was Witness I saw my Lord's Finger and it had been laid open some time before and he said he had received that Wound by endeavouring to part Captain French and Captain Coote that 's all I know of the matter Mr. Attorney General But pray when was that that he declared so how long after the death of Mr. Coote Witness It was several Days after that Lord High Steward You hear in point of Law that can be no Evidence at all if you have no other Witnesses to call your Lordship would do well to sum up your Evidence and make what Observations you think fit upon the Evidence that has been given for the King Lord Mohun My Lords I hope I shall make my Defence against this Accusation with all the modesty and submission to your Lordships that becomes me I am very much ashamed to be brought before your Lordships upon any such account as this again after having been once before your Lordships upon such an account before I may very well say I am not guilty at all of having any hand in Mr. Coote's death and I can assure your Lordships I will avoid all occasions of giving you any trouble of this nature for the future I do not doubt but to acquit my self of all Guilt in relation to this matter and indeed with submission to your Lordships there has been no Evidence given relating to me that do infer any Guilt upon me to prove that I was at the place where this Fact was done therefore I shall only make some few little Remarks upon what has been said and leave it all to your Lordships consideration The King's Council first have call'd the Drawer of the House and he has satisfied that I did so far endeavour to part 'em that I threaten'd to send for the Guards and secure 'em if they would not go home and when they went into the Chairs I went into my Chair on purpose to follow 'em down to Westminster whither I would have had 'em gone the prick that I got in my Finger of it self speaks that I endeavour'd to part 'em and so the Drawer he has told you I am sure it was the occasion of a great deal of pain to me it being forc'd to be afterwards laid open the Chair-men that carried Mr. Coote swears that I at the Door of the Tavern in St. Martins-lane did make 'em stand and when I came up to 'em I begg'd as for an Alms that they would go home and I askt Coote whither he was going which proves that I was not conscious of any design of going to fight at that time your Lordships are likewise told that when we came to Green-street end I was set down upon the pav'd Stones I was so indeed and I went up about five or six Yards but that is all that 's prov'd but I did take the quite contrary way to the place where Mr. Coote was wounded then there was another Chair-man one Applegate and truly what use they make of him I cannot imagine as an Evidence against me for he says I was very earnest in St. Martins-lane to hinder any Quarrel and indeed at the Tavern door at Locket's I was so at first and when we came to St. Martins-lane end he says that I order'd 'em to make them stop and askt Coote whither he was going and he saying he was going to Leicester-fields I endeavour'd all I could to perswade him to the contrary and did intreat him that he would go no farther but go down to Westminster to his Lodging or lodge with me but Mr. Coote would not give me time at that time the other Chairs coming by to give him further reasons but would go away and then it is objected that I should say That if they would go I would go and see that was my Lords I would go on till I could have a further opportunity to prevent any Fighting amongst them and the Witness Ketro says my Lord of Warwick did bid the Chair to follow the other Chair in which Captain Coote was my design was for Westminster to go to my Lodgings and when we came to the end of the Square if I did go up the whole Stones it was directly the contrary way to the place where it is prov'd this Fact happen'd for the next Witness Edwards he says he saw no body walking upon the pav'd Stones and truly I did go the direct way into Newport-street and for my not appearing before it was for avoiding confinement and I must submit the whole matter to your Lordships how far any Guilt is fix'd upon me not being prov'd to be in the Field at the time when they fought or seen to be in the Company when they came up and sound Mr. Coote wounded and dying or dead It is a plain case I could have no hand at all in his death and so I think I need give no further trouble to your Lordships for I believe your Lordships cannot but be satisfied that as I have pleaded I am not Guilty of killing this Gentleman nay it is impossible that I should go into the Field to be a second when my own right Hand was Wounded for I was not able to hold my Sword in my Sword Hand because of that Wound I submit the matter intirely to your Lordships from whom I am sure to meet with every thing that will be suitable to Honour and Justice Lord High Steward The Kings Council are now to Sum up the Evidence for the King Mr. Sollicitor General begun to Sum up the Evidence for the King but his Voice was so low and the noise in the Hall so great that he could not be heard and therefore the Lord High Steward moved the House that he might stand by the Prisoner at the Bar which was something nearer than the place where the Kings Council stood as was done the day before and it was order'd accordingly Lord High Steward Mr. Sollicitor Pray raise your Voice as much as you can that all my noble Lords may hear you Several of the Lords did move that one that had a better Voice might Sum it up and particularly Mr. Cooper but it being usually the part of the Sollicitor General and he only having
IN pursuance of an Order of the House of PEERS of the One and Thirtieth Day of March 1699 I do Appoint Jacob Tonson to Print the several Tryals of Edward Earl of Warwick and Holland and Charles Lord Mohun And do forbid any other Person to Print the same SOMMERS C. THE SEVERAL TRYALS OF EDWARD Earl of Warwick and Holland AND Charles Lord Mohun BEFORE THE House of PEERS in Parliament Upon the 28th and 29th Days of March 1699. For the Murder of Mr. Richard Coote The Right Honourable John Lord Sommers Baron of Evesham Lord High Chancellor of ENGLAND being LORD HIGH STEWARD upon that Occasion Publish'd by Command of the House of PEERS In the SAVOY Printed by Edward Jones for Jacob Tonson at Grays-Inn-Gate next Grays-Inn Lane MDCXCIX THE TRYAL OF EDWARD Earl of Warwick and Holland Die Martis 28 Martii 1699. ABout Eleven of the Clock the Lords came from their own House into the Court Erected in Westminster-Hall for the Tryals of Edward Earl of Warwick and Holland and Charles Lord Mohun in the Manner following The Lord High Steward's Gentlemen Attendants two and two The Clerks of the House of Lords with the Two Clerks of the Crown in the Courts of Chancery and Kings-Bench The Masters in Chancery two and two Then the Judges The Peers Eldest Sons and Peers Minors two and two Four Serjeants at Arms with their Maces two and two The Yeoman Usher of the House Then the Peers two and two beginning with the youngest Barons Then Four Serjeants at Arms with their Maces Then one of the Heralds attending in the Room of Garter who by reason of his Infirmity could not be present And the Gentleman Usher of the Black Rod carrying the White Staff before the Lord High Steward Then the Lord Chancellor Lord High Steward of England alone When the Lords were seated on their proper Benches and the Lord High Steward upon the Wooll-pack The Two Clerks of the Crown in the Courts of Chancery and Kings-Bench standing before the Clerks Table with their Faces towards the State The Clerk of the Crown in Chancery having His Majesty's Commission to the Lord High Steward in his Hands made three Reverences towards the Lord High Steward and the Clerk of the Crown in Chancery on his Knees presented the Commission to the Lord High Steward who delivered it to the Clerk of the Crown in the Kings-Bench then likewise Kneeling before his Grace in order to be Opened and Read and then the Two Clerks of the Crown making three Reverences went down to the Table and the Clerk of the Crown in the Court of Kings-Bench Commanded the Serjeant at Arms to make Proclamation of Silence which he did in this manner Serjeant at Arms. O Yes O Yes O Yes My Lord High Steward his Grace does straitly Charge and Command all manner of Persons here present to keep Silence and hear the King's Majesty's Commission to His Grace my Lord High Steward of England directed openly Read upon pain of Imprisonment Then the Lord High Steward stood up and spoke to the Peers Lord High Steward Your Lordships will be pleased to Stand up and be Uncovered while the King's Commission is Reading All the Peers Stood up and were Uncovered while the Commission was Read Clerk of the Crown GVlielmus Tertius Dei Gratia Angl. Scoc. Franc. Hibern Rex Fidei Defensor c. Praedilecto fideli Consiliar nostro Johanni Domino Somers Cancellar nostro Angl. Sciatis quod Cum Edrus Comes Warwic Holland nuper de Paroch Sci. Martini in Campis in Com. Middlesex Carolus Dominus Mohun nuper de Paroch praedict in Com. praedict coram dilectis fidelib nostris Carolo Lee Milit. Samuel Buck Willielmo Withers Francisco Tysson Armigeris aliis sociis suis Justiciar nostris ad inquirend per Sacramentum probor legalium hominum de Com. nostro Middlesex praedict ac aliis viis modis mediis quibus melius sciverint aut poterint tam infra libertat quam extra per quos rei veritas melius sciripoterit inquiri de quibuscunque proditionibus Misprisionibus prodition Insurrectionib Rebellionib Controfact tonsur lotur. falsis fabricationib aliis falsitat Monet hujus Regni nostri Angl. alior Regnor sive Dominior quorum cunque ac de quibuscunque Murdris Feloniis Homicid Interfectionibus Burglar Raptib Mulier Congregationib Conventicul illicit verbor prolationib Coadunationib Misprisionib Confederationibus falsis Alleganciis Transgressionibus Riotis Routis Retentionib Escapiis Contempt Falsitat Negligentiis Concelament Manutenent Oppressionibus Cambiparciis Deceptionib aliis Malefactis Offenc Injur quibuscunque Necnon Accessar eorundem infra Com. praedict tam infra libertat quam extra per quoscunque qualitercunque habit fact perpetrat sive commis per quos vel per quem cui vel quibus quando qualiter quomodo de aliis Articul Circumstanc praemiss seu eor alicujus vel aliquor qualitercunque concernen plenius veritat ad easdem proditiones al. praemiss audiend terminand secundum legem consuetud Regni nostri Angl. nuper assignat de Felonia Murdro per ipsos Edrum Comitem Warwic Holland Carolum Dominum Mohun Commiss Perpetrat per sacrament probor legal hominum Com. nostri Middlesex praedict Indictat Existunt Nos considerantes quod Justitia est virtus excellens altissimo complacens Volentesque quod praedict Edrus Comes Warwic Holland Carolus Dominus Mohun de pro Felonia Murdro unde ipsi ut praefertur Indictat existunt coram Nob. in presenti Parliament nostro secundum Leg. consuetud Regni nostri Angl. Audiantur Examinantur sententientur Adjudicentur Caeteraque omnia quae in hac parte pertinent debo modo exerceantur exequantur Ac pro eo quod Officium Seneschalli Angl. cujus praesentia in hac parte requiritur ut Accepimus jam vacat Nos de Fidelitate Prudentia provida Circumspectione Industria vestris plurimum confidentes Ordinavimus Constituimus vos ex hac causa Seneschallum Angl. ad Officium illud cum omnibus eidem Officio in hac parte debit pertinen hac vice gerend occupand exercend Et ideo vob Mandamus quod circa praemiss diligenter intendatis ea omnia quae in hac parte ad Officium Seneschal Angl. pertinent requiruntur hac vice faciatis exerceatis exequamini cum effectu In Cujus rei Testimonium has literas nostras fieri fecimus Patentes Teste meipso apud Westmonasterium vicesimo quinto die Martii Anno Regni nostri Vndecimo Per Ipsum Regem propria Manu Signat Serjeant at Arms. God Save the King Then the Herald and the Gentleman Usher of the Black Rod after three Reverences Kneeling presented the White Staff to his Grace and his Grace removed from the Woollpack to the Chair which was placed upon an Ascent just before the uppermost Step of
Hand then and there had and held drawn the aforesaid Richard Coote in and upon the left part of the Breast of him the said Richard Coote near the Collar Bone of him the said Richard Coote then and there Feloniously Voluntarily and of your Malice afore-thought did Strike Stab and Thrust in giving to the said Richard Coote then and there with the Sword drawn aforesaid in and upon the left part of the Breast of him the said Richard Coote near the Collar Bone of him the said Richard Coote one Mortal Wound of the breadth of half an Inch and of the depth of 5 Inches of which said Mortal Wound the aforesaid Richard Coote then and there instantly died And that the aforesaid Charles Lord Mohun Richard French Roger James and George Dockwra then and there Feloniously Voluntarily and of their Malice afore-thought were present aiding abetting comforting assisting and maintaining you the said Edward Earl of Warwick and Holland the said Richard Coote in manner and form aforesaid Feloniously Wilfully and of your Malice afore-thought to Kill and Murther and so you the said Edward Earl of Warwick and Holland and the said Charles Lord Mohun Richard French Roger James and George Dockwra the aforesaid Richard Coote in manner and form aforesaid Feloniously Voluntarily and of your Malice afore-thought did Kill and Murder against the Peace of our Sovereign Lord the King that now is His Crown and Dignity c. How say you Edward Earl of Warwick and Holland are you guilty of this Felony and Murther whereof you stand Indicted or not guilty Earl of Warwick Not Guilty Clerk of the Crown Culprit How will your Lordship be Tried Earl of Warwick By God and my Peers Clerk of the Crown God send your Lordship good Deliverance Then at the Motion of some Lords who sate towards the upper end of the House and by reason of the distance could not distinctly hear the Clerk the Indictment was Read again the Clerk standing near the upper end of the House Clerk of the Crown Serjeant at Arms make an O Yes Serjeant at Arms. O Yes O Yes O Yes If any one will give Evidence on behalf of our Sovereign Lord the King against Edward Earl of Warwick and Holland of the Felony and Murther whereof he stands Indicted let them come forth and they shall be heard for now he stands at the Bar upon his Deliverance L. H. St. Will your Lordships give me Leave to go down to the Woolpack that I may hear the better Lords Ay Ay. Then his Grace removed to the Woollpack and delivered the White Staff to be held by the Gentleman Vsher of the Black Rod who during the whole Tryal always received and delivered back the White Staff upon his Knees L. H. St. Mr. Attorney are you ready to proceed Mr. At. Gen. Yes my Lord. L. H. St. Then begin Sir Mr. Serj. Wright May it please your Lordships L. H. St. Pray Mr. Serjeant raise your Voice as much as possible you can that my Lords towards the upper end of the House may hear Mr. Serj. Wright May it please your Lordships this Noble Lord Edward Earl of Warwick and Holland the Prisoner at the Bar stands Indicted for the Felonious Killing and Murder of one Richard Coote Esq and the Indictment sets forth That upon the 30th day of October in the Tenth Year of His Majesty's Reign at the Parish of St. Martin in the Fields in the County of Middlesex the Prisoner at the Bar the Earl of Warwick together with Charles Lord Mohun Baron of Oakehampton Richard French Roger James and George Dockwra Gent. Feloniously Voluntarily and of their Malice afore-thought did make an Assault upon the said Richard Coote in the Indictment named and the Indictment chargeth that the Earl of Warwick at the same time and place with a Sword Feloniously Voluntarily and of his Malice afore-thought did give unto the said Richard Coote in or upon the left part of the Breast of him the said Richard Coote near his Collar Bone one Mortal Wound of the breadth of half an inch and of the depth of five Inches of which said Wound the said Richard Coote then and there instantly died And the Indictment further Charges that the said Charles Lord Mohun Richard French Roger James and George Dockwra the Earl of Warwick to commit the Felony and Murder aforesaid were then and there aiding assisting comforting and abetting and so the Jurors Charge That he the said Edward Earl of Warwick and Holland Charles Lord Mohun Richard French Roger James and George Dockwra the said Richard Coote Feloniously Voluntarily and of their Malice afore-thought at the Parish aforesaid in the County aforesaid did Kill and Murder against the Peace of our Sovereign Lord the King his Crown and Dignity To this Indictment this Noble Lord the Prisoner at the Bar Edward Earl of Warwick and Holland has Pleaded Not Guilty and for his Tryal hath put himself upon My Noble Lords his Peers here present We shall call our Evidence and if we prove this Fact for the King we do not doubt but your Lordships will give such Judgment for the same as shall be Just Mr. At. Gen. May it please your Lordships I am of Councel in this Cause for the King against this Noble Lord Edward Earl of Warwick and Holland The Prisoner at the Bar who stands Indicted by the Grand Jury of the County of Middlesex has been Arraigned and is now to be Tryed before your Lordships for the Felonious Killing and Murdering of Mr. Coote In the Indictment named the Evidence to make good this Charge against this Noble Lord it comes to my turn to open to your Lordships Mr. At. Gen. My Lords the Case as to the Fact according to my Instructions is this Upon Saturday the 29th of October last at night my Lord of Warwick my Lord Mohun Mr. French Mr. Dockwra and Mr. Coote the unfortunate Gentleman who was killed met together at one Lockett's who kept the Greyhound Tavern in the Strand and there they stayed till it was very late About 12 of the Clock at night or thereabouts a Messenger was sent by the Company to fetch another Gentleman Mr. James and Mr. James coming to them in what Condition your Lordships will be told by the Witnesses About One of the Clock in the Morning on Sunday the 30th of October they all came down out of the Room where they had been so late to the Bar of the House and there as the Witnesses will tell your Lordships Swords were drawn and Chairs were called for and Two Chairs which were nearest at hand came and Two of the Company went into those Chairs who they were and what past at that time the Witnesses will tell your Lordships Those that got into those Chairs came out again and more Chairs were called for But I must acquaint your Lordships that my Lord Mohun when the Two Gentlemen that went into the Chairs ordered the Chairmen to take them up and carry them
away spoke to them to stop and go no further for there should be no Quarrelling that night and that he would send for the Guards and secure them and after this they came out of the Chairs again It will appear there were Swords drawn amongst all of them and some Wounds given More Chairs being called for and brought this Noble Lord that is here at the Bar my Lord of Warnick my Lord Mohun and the other Four Gentlemen went all into the Chairs and gave the Chairmen Directions whither they should carry them at leastwise the foremost had Directions given them and the rest were to follow them it was a very dark night but at last they came all to Leicester Square and they were set down a little on this side the Rails of the Square and when the Chairmen had set them down they went away but immediately some of them heard my Lord of Warwick calling for a Chair again who came towards the Rails and there they found Two of the Gentlemen that had been carried in some of the other Chairs holding up Mr. Coote between them and would have had the Chairmen carried him away to a Chirurgeon's but they found he was dying and so would not meddle with him afterwards my Lord of Warwick and Mr. French were carried by Two of the Chairs to Mr. Annys the Chirurgeon at the Balneo in Long-acre where Mr. French being wounded was taken care of particularly by the Recommendation of my Lord of Warwick and the Master of the House was called up it being very late Mr. Coote's Sword was brought to that place but by whom it was brought we cannot exactly say while my Lord of Warwick and Capt. French were there and my Lord of Warwick had given Orders for the Denying of himself and forbid the opening of the Door There came the other Two Gentlemen Mr. James and Mr. Dockwra and upon their Knocking at the Door they were let in by my Lords Order after he had discovered who they were looking through the Wicket Mr. James had his Sword drawn but it was broken My Lord of Warwick's Hand was slightly wounded and his Sword bloody up to the Hilt when he came in as will be proved by the Testimony of the Servants in the House There was a Discourse between my Lord Mr. James and Mr. Dockwra about going into the Country but before they went the Swords were all called for to be brought to them and upon inquiry there was no Blood found upon Mr. Frenche's Sword but a great deal upon my Lord of Warwick's of which great notice was taken at that time Mr. Coote who was killed had received one Wound in the left side of his Breast half an Inch wide and five deep near the Collar Bone he had likewise another Wound upon the left side of his Body both which your Lordships will hear in the Judgment of the Surgeon Mortal Wounds and the Evidence will declare the Nature of them My Lords The Evidence does chiefly consist of and depend on Circumstances the Fact being done in the Night and none but the Parties concerned being present at it we shall lay the Evidence before your Lordships as it is for your Judgment and call what Witnesses we have on the behalf of the King against this Noble Peer the Prisoner at the Bar and take up your Lordships time no further in opening and we shall begin with Samuel Cawthorne he is a Drawer at the Tavern where those Lords and Gentlemen were together and he 'll give you an account of the time they came there how long they staid what happened in the House during their being there and what time they went away L. H. St. Give him his Oath Which the Clerk did Mr. At. Gen. My Lords I doubt the Witness is so far off that it will be difficult for him to hear the Questions that we are to ask him unless we could have him nearer to us L. H. St. Mr. Attorney My Lords seem to be of Opinion that it will be more for your advantage and theirs that the Witnesses stand at the distance they do which will oblige you to raise your Voice so loud that they may hear the Witnesses and you too Mr. At. Gen. Is your Name Samuel Cawthorne Cawthorne Yes my Lord. Mr. At. Gen. Where do you live Cawthorne With Mr. Lockett at Charing-Cross Mr. At. Gen. Did you live with him at the Greyhound Tavern in the Strand the latter end of October last Cawthorne Yes I did Mr. At. Gen. Well pray will you acquaint my Lords with the time when my Lord of Warwick my Lord Mohun and Mr. Coote were at that House how long they stayed what happen'd while they were there and when they wont away Cawthorne It was Saturday Night the 29th of October last Mr. At. Gen. Pray tell my Lords the whole of your know ledge in the matter Cawthorne There came my Lord of Warwick my Lord Mohun Capt. Coote Capt. French and Capt. Dockwra the 29th of October last in the Evening to my Master's House at the Greyhound Tavern in the Strand Mr. At. Gen. How long were they there and what time of Night came they in Cawthorne About Eight a Clock at Night my Lord Warwick my Lord Mohun Capt. French and Capt. Coote came in Mr. At. Gen. What Day do you say it was Cawthorne Saturday the Nine and twentieth Day of October last Mr. At. Gen. How long did they continue there Cawthorne It was between One and Two the next Morning before they went away Mr. At. Gen. Was any body sent for to come to them there Cawthorne Yes Mr. James M. At. Gen. What time was that Cawthorne About Twelve of the Clock Mr. At. Gen. Did he stay with them till they went away Cawthorne Yes Mr. At. Gen. What did you observe past in the Company while they were there Cawthorne I did not observe any thing of quarrel nor so much as an angry word amongst them till they came down to the Barr and were going away when they came down to the Bar they order'd me to call them Chairs or Coaches and there were no Coaches to be had and so I went for Chairs and two Chairs came for the Porter that went to call the Coaches was a great while before he came back and as I said I going for Chairs there came two but that they said was not enough so more Chairs were called for and at length there were more Chairs gotten in the first three Chairs my Lord of Warwick my Lord Mohun and Capt. Coote went away in and my Lord of Warwick and my Lord Mohun bid the Chair-men carry them home Mr. At. Gen. Were there then any other Chairs at the Door Cawthorne There were two more Chairs at the Door and another was called for Mr. At. Gen. Did you hear any Directions given where they should carry them Cawthorne My Lord Warwick and my Lord Mohun bid them carry them home Mr. At. Gen. Did you hear my
Cawthorne I apprehended it from the words that Mr. Coote said That he would Laugh when he pleased and Frown when he pleased Mr. At. Gen. Pray my Lord I desire he may be asked Who those Words were spoke to and who they were applied to Cawthorne They were spoke to Mr. James Mr. French and Mr. Dockwra who were withinside of the Bar. Mr. At. Gen. Did he apply those Words to all those particular Persons Cawthorne Yes as I thought for they Three were within the Bar my Lord Warwick my Lord Mohun and Mr. Coote were without the Bar. Mr. Att. Gen. Pray my Lord I desire he may be asked this Question Was that before the Swords were drawn or afterwards Cawthorne It was before Mr. Att. Gen. Then I desire he may be asked Whether the Swords were drawn upon those Words Cawthorne No my Lord the time of drawing the Swords was when I went out to call Chairs and Coaches and I know not who drew the Swords first or when they were drawn but when I came back I found them all drawn and I heard them Clashing Mr. Att. Gen. Upon the Oath you have taken Was those Words that you speak of Mr. Coote's That he would Laugh when he pleased and Frown when he pleased before the Swords were drawn or after the Svvords vvere dravvn Cawthorne Before the Swords were drawn for I did not see the Swords drawn till I came back L. H. St. Does either side desire to ask this Witness any Questions if not then you may withdraw and you may proceed Mr. Attorney to Examine some other Witness Lord Wharton My Lord there was a Question asked at the Bar about the hindring of the Quarrel and my Lord Mohun's desire to part them and make them Friends I desire the Witness before he goes away may be asked what he knows of that Matter L. H. St. It has been observed by my Lord that you said when they came down to the Bar and the Quarrel happened some body would have prevented it pray repeat that Matter again Did you observe any of the Company were disposed to take up the Quarrel and make them Friends and who they were Cawthorne My L. Mohun and my L. Warwick said they would send for a File of Musqueteers and my Lord Mohun did all he could to quiet and pacify them till the Quarrel was over and my Lord Mohun particularly had his Finger prick'd with endeavouring to Cross their Swords and keeping them from Fighting which was all he got by it L. H. St. Do you know that of your own Knowledge Cawthorne His Hand was bloody and he said so at the Bar but I was just coming in again when I heard him say so but I cannot say that I saw him hurt for I was without the House at the time when that was done L. Godolphin My Lords I desire to ask this Witness one Question I observe he has told my Lords there was not an angry Word pass'd between them before they came down to the Bar I would fain ask him this Question Whether he was in the room all the time till they did come down to the Bar. Cawthorne I received the Reckoning just before they came down to the Bar. L. Godolphin And I desire he may be asked How long he stald in the Room when he received the Reckoning Cawthorne It was about two or three Minutes that I staid in the Room and not longer E. of Warw. My Lord this Witness that has been Examined told you That when we first came down to the Bar there were two Chairs called for and when they came Mr. Coote and the other Gentleman Mr. French went into the Chairs and afterwards they came out again and Mr. Coote said some Words I desire the Witness may be asked again when it was Mr. Coote spoke those words whether it was before or after the time that he came out of the Chair for I take it to be very material Cawthorne It was after Mr. Coote came out of the Chair for the Chairmen heard the Words as I verily believe Mr. Att. Gen. My Lord I desire he may be asked Was there any reply made to those words by any of those Persons he says he apprehends were on the other side Cawthorne No not one Word that I know of E. of Warw. My Lord I must beg the Favour to have the Question asked again of him Whether I did not at that time endeavour to prevent any Quarrelling and did not say I would call for the Guard if they did Cawthorne Yes My Lord of Warwick did say so and so did my Lord Mohun and so I think did Mr. James L. H. St. How came you not to say so when you were asked that Question particularly before Then you said my Lord Mohun endeavoured to prevent the Quarrelling and make them Friends Cawthorne Yes my Lord Warwick did so and so did Mr. James L. H. St. I cannot tell whether any body else desires to ask him any Questions Mr. Att. Gen. My Lord he speaks of what this Noble Lord my Lord of Warwark said but he does not tell you the particular Expressions nor the time when my Lord said them L. H. St. You say my Lord the Prisoner at the Bar endeavoured to pacify the Quarrel between them but you do not tell my Lords who the Quarrel was between nor when the Endeavour was made by my Lord Warwick to pacify it Cawthorne My Lord of Warwick did say he would have the Guards sent for L. H. St. What time was that before or after my Lord Mohun said so Cawthorne Truly my Lord I do not know but that it was at the same time L. H. St. Was it when the Swords were drawn or before Cawthorne They spoke it both before and after the Swords were drawn as I remember for the Swords were not drawn while I was in the House till I came back L. H. St. Were the Swords drawn when my Lord Warwick spoke of sending for the Guards Cawthorne Surely my Lord it was before the Swords were drawn when I was sent for the Chairs L. H. St. You said there was no angry Words or Quarrel between them Cawthorne Not above Stairs my Lord but I apprehended when they came down to the Bar there were three on one side and â—â—ee on the other Mr. Att. Gen. Pray my Lord â—et him be asked this Question Was it after they were three on the one side and three on the other that my Lord Mohun and my Lord Warwick spoke those words Cawthorne I apprehend the words were spoke by Mr. Coote That he would Laugh when he pleased and Frown when he pleased was before the Swords were drawn L. H. St. But that which my Lords desire to know is What the time was when my Lord Warwick and my Lord Mohun declared their desire to part them and make them Friends whether before or after the Swords drawn Cawthorne Before and after for I was absent when the Swords were drawn E. Rivers
He says That after my Lord Mohun and my Lord Warwick threatned to send for the Musqueteers They promised to be quiet I desire to know who he means by They. Cawthorne Mr. James called to me and said I need not go and call for the Guards for the Quarrel was over There is one thing more that I forgot my Lord After my Lord Mohun and my Lord Warwick were gone away in their Chairs and Mr. Coote I heard Mr. Dockwra did say to Captain James and Captain French they did not care a Farthing for them they would Fight them at any time L. H. St. Who were together then Cawthorne Captain James Mr. French and Mr. Dockwra after my Lord Mohun and my Lord Warwick were gone with Captain Coote L. H. St. Then Mr. French was with them when Mr. Dockwra said so Cawthorne Yes my Lord. L. Wharton If I apprehend him aright as to what he says now my Lord of Warwick my Lord Mohun and Captain Coote were gone away at that time Cawthorne Yes they were gone away in the three first Chairs which my Lord Mohun bid go home L. Wharton Who does he say spoke those words L. H. St. You hear my Noble Lord's Question Who spoke those words Repeat them again Cawthorne When my Lord Warwick my Lord Mohun and Captain Coote were gone I heard Mr. Dockwra say to Mr. French and Mr. James we don't care a Farthing for them we will Fight them at any time Mr. Att. Gen. I desire to know whether this Witness testified any thing of this Matter when he was Examined before the Coroner Cawthorne No I forgot those words when I was Examined before the Coroner Mr. Att. Gen. How soon after your Examination did you recollect your self as to what you novv speak Cawthorne The next Day after Mr. Att. Gen. I pray my Lords that he may be asked Whether he did in general give the same Evidence before the Coroner that he does now Cawthorne Yes as to all but only those words as to Mr. Dockwra's declaring that he did not care a Farthing for them they would Fight them at any time Mr. Att. Gen. My Lord I beg he may be asked how long it was after the Fact was done that he was Examined before the Coroner Cawthorne It was the next Day in the Afternoon Mr. Att. Gen. Then I have this Question further to ask if your Lordships please Was he at the Tryal of Mr. Dockwra Mr. James and Mr. French Cawthorne Yes I was M. Att. Gen. Did he then give any Evidence of those words of Mr. Dockwra's after when my Lord Warwick my Lord Mohun and Captain Coote were gone Cawthorne No I did not Mr. Att. Gen. My Loâ—d I have one Question to ask him then more How he came not to swear this Matter at that Tryal Cawthorne It was out of my Mind at that time and I had like to have forgot it now Mr. Att. Gen. My Lord we have done with this Witness Is it your Lordships pleasure that we go on to call our other Witnesses Lords Ay Ay. Mr. Att. Gen. Then our next Witnesses my Lords will be the Chairmen that Carried my Lord Mohun my Lord of Warwick and Captain Coote We shall begin with Thomas Browne and John Gibson one of them carried Mr. Coote the other my Lord of Warwick Thomas Brown was Sworn L. H. Stew. What Question do you ask this Witness Mr. Attorney Mr. Att. Gen. That he would acquaint your Lordships whether he carried Mr. Richard Coote the Person that was slain upon the 29th or 30th of October from the Greyhound Tavern in the Strand and to what Place he carried him L. H. Stew. You hear the Question pray speak so loud that my Lords may all hear what you say Browne My Lords I was between the Hours of One and Two in the Morning on Sunday the 30th of October last with my Fellow and our Chair at the Buffer's Head Tavern at Charing-Cross and I heard some People at Lockets at the Greyhound in the Strand calling Coach Coach a pretty while but there were no Coaches in the Street nor that came to them when they could not get Coaches then they called out for Chairs and we coming to the Door with our Chair there were four other Chairs there and six Gentlemen stood in the Passage and then it was said there was not Chairs enough and there wanted one more and they stood Discoursing and the first Man came into my Chair who was Captain Coote and my Lord of Warwick he got into another when the Door of the Chair was shut up we asked them whither we should go but my Lord Mohun came and bid open the Chair again and we did so and he returned into the House and there was some Discourse between them standing at the Bar in the Entry Mr. Coote came out again and came into my Chair and my Lord Mohun and my Lord of Warwick went into two others Mr. Coote bid me carry him into Leicester-Fields and to make all the haste I could my Lord of Warwick and my Lord Mohun being in the next Chairs asked him Whether are you a going and called out twice and he said To Leicester-Fields Pray do not says my L. of Warwick but come along with us and let it alone till to morrow but he bid us go on and as we were turning up St. Martin's Lane by the Cross-Keys Tavern my Lord Mohun and my Lord Warwick called out to us to stop and their Chairs came up to the back Door of the Gross-Keys Tavern and there all the three Chairs were set on a-brest in St. Martin's-Lane and while they were talking together there came by three Chairs of the other side of the way and Mr. Coote bid us take up and make all the haste we could before them into Leicester-Fields so taking up the Chair again Mr. Coote bid us make haste and if we could go no faster he swore Damn him he would run his Sword in one of our Bodies There were two Chairs before me and my L. Mohun and my L. Warwick followed in two Chairs after me and when we came to the Corner of Leicester-Fields at Green-street end all the three Chairs were set down a-brest again and Mr. Coote put his Hand in his Pocket and took out half a Guinea to pay and said he had no Silver and my Lord of Warwick spoke to my Lord Mohun who took out three Shillings out of his Pocket who said there was for my Lord Warwick Captain Coote and himself and when they were gone out I took my Box and my Pipe and filled my Pipe and took the Lanthorn and lighted it and by that time I had lighted my Pipe I heard a calling out Chair Chair again towards the upper End of the Square so I took my Châ—â— and there was one of the Chairs that was not gone and so we came up to the upper End of the Fields and they called to us to bring the Chairs over the
of Warwick No my Lord. Mr. At. Gen. Then my Lord our next Witness is John Gibson he vvas another of those Chairmen that carried my Lord of Warwick to the Bagnio aftervvards Pray Will you give my Lords an Account vvhat you knovv vvho you carried the 29th and 30th of October last and vvhither you carried them He was Sworn Gibson My Lord I was at Charing-Cross with my Partner the 29th of October last at night and about One or two a Clock in the morning Chairs were called for to the Greyhound-Tavern in the Strand and when we came there my Lord of Warwick my Lord Mohun and Mr. Coote got into the 3 first Chairs and we got my Lord Warwick into our Chair and when we had him there we were bid to go towards Leicester-fields as I apprehended for thither the Chairs that went first was to go and indeed my Lord Mohun and my Lord Warwick did call to stop at the end of St. Martins-Lane and asked Mr. Coote whither he was going and he said he was going to make an end of the Business and they said it should not be to night but presently after 3 other Chairs coming along and passing before us the Chair that Capt. Coote was in was bid to go on and we were ordered to follow which was done accordingly Just at the Turning of Greenstreet we set down our 3 Chairs and having had 3 Shillings given us we were bid to go about our business and I think just about the Turning of Greenstreet end we stayed till there came another Chair again and we and the other Chair upon my Lord Warwick's coming into us went away from thence and carried him to the Bagnio in Longacre Mr. At. Gen. You talk of another Chair pray Whose Chair was that Gibson There was another Chair that was got there just before us but indeed I do not know whose it was nor indeed can I say vvho it vvas that vvas in it but this I am sure vve vvent to the same place and vve met and lit just at the same time and my Lord of Warwick asked for a Handkerchief to bind about his Hand vvhich vvas bloody vvich vvas given him Mr. At. Gen. Did you not knovv vvho vvas in the other Chair at that time Gibson No indeed I did not knovv I vvill assure you Mr. At. Gen. Pray Did you not knovv vvhere that other Chair took the other Gentleman up Gibson No indeed Sir I do not Mr. At. Gen. Pray What time of the Night vvas it Gibson It vvas betvveen One and tvvo of the Clock in the Morning Mr. At. Gen. You talk of his Hand being hurt and that he called for a Handkerchief Did you see his Hand bleed and pray in vvhat nature vvas his Wound Gibson My Lord all I can say is there vvas Blood and he vvanted a Handkerchief and had one for he said his Hand was hurt but in truth I did not take any notice what that hurt was I did not see it if my Partner took notice of it so but else I can say nothing to it but the Handkerchief was afterwards asked again and could not be had L. H. St. Would my Lord of Warwick ask this Witness any Questions E. of Warwick No my Lord. Mr. At. Gen. Then my Lord our next Witnesses are Robert Applegate and Peter Catro who will give your Lordship an Account who they carried at this time L. H. St. Whom do you call first Mr. At. Gen. Robert Applegate Who was Sworn L. H. St. What Questions do you ask him Mr. Attorney Mr. At. Gen. I desire that he would acquaint your Lordship what he knows of what passed at the Greyhound-Tavern in the Strand the 29th of October last whom he carried and whither he carried them Applegate My Lord about One or two a Clock in the morning a Sunday morning the 29th or 30th of October last I was going home with my Partner and my Chair and I heard them calling at the Greyhound Tavern in the Strand Mr. Lockett's for Coaches and Chairs there was no Coach to be had that could be heard of but coming up to the Door they said they wanted 6 Chairs and when we were there at the Door there came out first my Lord Warwick Capt. Coote and my Lord Mohun Capt. Coote got into the first Chair and what Directions he gave them I cannot tell My Lord of Warwick got into the next and into ours which was the third my Lord Mohun came in and bid us take him up and carry him towards Westminster and he ordered us to follow the Chairs before Just as they turned at St. Martins-Lane my Lord Mohun called out and desired to stop and at the Cross-Keys Tavern Back Door aâ— the 3 Chairs came up together and then my Lord of Warwick and Capt. Coote and my Lord Mohun talked together and I could hear my Lord Mohun and my Lord of Warwick desire Capt. Coote to defer it and put it by till another day what it was indeed I cannot tell but while they were talking there Three Chairs more came up on the other side of the way and Capt. Coote would needs go forward and my Lord Mohun and my Lord of Warwick went with him and so they were all set down at the lower end of Leicester-fields at Green-street end But in truth I did not see where the other Three Chairs set down those they carried Mr. At. Gen. What then hapned afterwards Can you tell Appleby I cannot tell whether I had Lighted my Pipe or just Lighting it when I heard Chairs called again upon which we run up with our Chair towards the upper end of the Fields and there I did see my Lord of Warwick within the Rails vvho bid us put over our Chair into the Fields but vve told him if vve did vve could not get it over again and so vve vvent vvith our Chair to the corner of the Fields and vvhen vve came there there came out Capt. French vvho bid us open our Chair and let him in for he did believe he vvas a Dead Man and upon that vve did take him in and he bid us carry him vvith all the speed we could to the Bagnio in Long-Acre and my Lord of Warwick got into another Chair behind so vvent to Lang-Acre and vvhen vve came to the Door of the Bagnio and Capt. French came out of the Chair he vvas so vveak that he fell dovvn upon his Knees and vvhen he came out I asked vvho should Pay me and desired to be Discharged and the Earl of Warwick said Damn ye Call for your Money to Morrovv so they both vvent in at the Bagnio Door together Mr. At. Gen. Pray vvho called for the Chair first Capt. French or my Lord of Warwick in the Fields Applegate I cannot tell but vvhen I brought up my Chair I first savv my Lord of Warwick and he vvould have had me lifted the Chair over the Rails and I told him vve could not get it over
Mr. At. Gen. What then became of the others Pomfret Mr. James and Mr. Dockwra and my Lord of Warwick went away and my Lord of Warwick desired particularly that we would all take care of Mr. French for he was his particular Friend and Mr. French continued there till Sunday about One of the Clock Mr. At. Gen. Was there any Discourse at that time about Mr. Coote Pomfret Not that I heard of one Word Mr. Att. Gen. Was there any notice taken of any Quarrel that happened between any Body and who Pomfret No indeed I did not hear them take notice of any Quarrel at all between any Body Mr. At. Gen. You say Mr. French when he came into your House was wounded and there was Care particularly taken of him because he was wounded Pomfret Yes my Lord of Warwick desired to take Care of him Mr. At. Gen. Then pray was there no Discourse how he came to be wounded Pomfret Indeed I do not know how he came to be wounded nor did I hear one word of Discourse about it indeed I cannot say any thing who wounded him Mr. At. Gen. Pray will you recollect you self and tell my Lords what sort of Handle had my Lord of Warwick's Sword when you saw it Pomfret It had a Steel handle Mr. At. Gen. Pray can you tell whether the Shell was open or close Pomfret I cannot tell justly I saw it and that was all Mr. At. Gen. If I apprehend you you say my Lord had a Wound in his Hand Pomfret Yes my Lord he had so Mr. At. Gen. Pray in what Hand was it that he was wounded Pomfret To the best of my remembrance it was in his Right Hand Mr. At. Gen. Pray did there appear much blood there Pomfret Yes my Lord indeed there did Mr. Serj. Wright You talk of Mr. James and Mr. Dockwra's Swords pray in what Condition were they Pomfret Mr. Dockwra's Sword by his side and not drawn Mr. Serj. Wright What did you observe of Captain James's Sword Pomfret His Sword was Naked and he had lost his Scabbard but how that came I cannot tell and there was Dirt on one side of the Sword and he said he had left his Scabbard behind him Mr. At. Gen. Was there any Blood upon his Sword Pomfret No there was no Blood that I did see upon it Mr. At. Gen. Pray did you see any Blood upon Mr. Dockwra's Sword Pomfret No indeed I did not see Mr. Dockwra's Sword it was in the Scabbard by his side D. of Leeds My Lords There has been notice here taken of several Swords that this Witness saw and he takes so far notice of my Lord of Warwick's Sword that he tells you what sort of Hilt it had and how it was bloody from the Point to the Hilt I desire he would give you an account of the Length and Breadth of the other Men's Swords Mr. French Mr. James and Mr. Dockwra L. H. St. You said just now that you took notice of my Lord of Warwick's Sword that it was bloody from the Point to the Hilt what sort of Sword was it Pomfret It was a pretty broad Sword L. H. St. Did you take notice of the other Swords what Breadth or Length they were of Pomfret No my Lord I did not Mr. At. Gen. Which was that Sword that was Dirty as you say Pomfret That was Captain French's Mr. At. Gen. Was that a broad Sword or not Pomfret No it was not Mr. At. Gen. Pray was it over Night or next Morning that you saw the Swords Pomfret It was in the Morning about Three a Clock Mr. At. Gen. What time did my Lord of Warwick and Mr. James and Mr. Dockwra go away Pomfret My Lord of Warwick and they were gone several hours before Mr. French and to the best of my Remembrance Mr. James broke his Sword upon the Floor after he came in Mr. At. Gen. Pray what Swords were there in all that you saw there Pomfret There was Captain French's Captain James's my Lord of Warwick's and one Mr. Coote's as Mr. French said when it was brought in L. H. St. Have you done with this Witness Mr. Attorney Mr. At. Gen. Yes my Lord we have L. H. St. My Lord Warwick Will you ask him any Questions E. of Warwick No my Lord. L. H. St. Then Mr. Attorney call your next Witness Mr. At. Gen. Our next Witness is Thomas Goodall who is a Servant at the Bagnio in Longacre as well as this Man that was last He was Sworn L. H. St. What Questions do you ask him Mr. Attorney Mr. At. Gen. My Lord I desire he would acquaint your Lordships What time it was my Lord of Warwick and Capt. French came to his Master's House Goodall It was between One and two of the Clock in the morning Mr. At. Gen. My Lord I desire he would acquaint your Lordships what he saw and knows that passed at that time Goodall All that I can say is That I did see my Lord Warwick's Sword bloody and it was naked in his Hand and I did see a Wound on his Hand Indeed I did not see him when he first came in for he had been there a pretty while before I savv him Mr. At. Gen. Pray in vvhat Condition vvas my Lord vvhen you savv him Goodall He had his Svvord in one Hand and it vvas bloody at the Blade and at the Hilt but vvhether it vvas bloody all over indeed I did not take notice of it and so cannot give an account Mr. At. Gen. Pray What sort of Svvord vvas it Goodall Indeed I cannot give an account what sort of Sword it was but it was either Steel or Silver Gilt as I remember but I did take notice that there was Blood upon the Hilt that is upon the Shell Mr. At. Gen. Was it an open Shell or a close one Goodall I think it was a Close one Mr. At. Gen. Pray Did my Lord of Warwick give any Order to be denied in the House or for any Concealment there Goodall Indeed I did not hear of any Orders given for Concealing of any body there but my Lord walked up and down very much Concerned Mr. At. Gen. Did not Mr. French come in with him Goodall I do believe he might but I cannot say I saw him when he came in Mr. At. Gen. Can you tell when Mr. James and Mr. Dockwra came in how long was that after my Lord of Warwick was there and Mr. French Goodall To the best of my remembrance and knowledge it was half an hour after my Lord of Warwick and Mr. French came that Mr. James and Mr. Dockwra came I am sure it was so before I saw them in the House but indeed I cannâ—t say directly when they came in or when they went out Mr. At. Gen. Pray Which Hand of my Lord of Warwick was it that was hurt the Right or the Left Goodall Indeed I cannot positively say but I think it was the Right Hand Mr. At. Gen. You talk of
into the Country Capt. Duck. No indeed I cannot tell the reason Mr. At. Gen. Did you observe my Lord of Warwick's Sword Was there any Blood upon it Capt. Duck. I cannot say his Sword was bloody at the point the whole Blade and Shell was bloody to the best of my remembrance Mr. At. Gen. What sort of Sword was it Capt. Duck. It was a pretty broad Blade a hollow Blade and a hollow open Shell Mr. At. Gen. Was there any Discourse concerning Capt. French Capt. Duck. Yes they thought he was very ill wounded Mr. At. Gen. Was there any and what Discourse who should give my Lord of Warwick his Wound Capt. Duck. It was said they believed Capt. James gave my Lord his wound Mr. At. Gen. Pray was there any Blood upon Mr. James's Sword or was he wounded Capt. Duck. I saw no wound upon Capt. James that I know of L. H. St. Do you believe that my Lord Warwick's Sword was bloodied with the hurt of his own Hand or any otherwise Capt. Duck. I cannot tell it was a Cut Shell and the outside bloody as well as the in L. H. St. My Lord Warwick Will your Lordship ask this Witness any Questions E. of War No my Lord. L. H. St. Mr. Attorney if you have any other Witnesses pray call them Another Witness was produced that belonged to the Ship and Castle in Cornhill Mr. At. Gen. This Man will give you an Account what past at his House at that time and between whom Pray will you tell my Lords who was at your House the 30th of October last and what past there then Witness My Lord of Warwick Capt. James and Capt. Dockwra and when my Lord of Warwick came in I thought my Lord was in a very great Concern and called for Pen Ink and Paper and I fear'd there was some quarrel in hand but they said no the Quarrel was over and says my Lord of Warwick I am afraid poor Coote is killed Mr. At. Gen. Did you observe any desire to be private Witness No indeed I cannot tell that Mr. At. Gen. How long did they continue there Witness About 6 a Clock my Lord of Warwick and Capt. James and Capt. Dockwra and Capt. Ducking field went away Mr. At. Gen. Can you tell who went with my Lord Warwick Witness No indeed I cannot tell who went with my Lord Warwick there came in a Gentleman in Black whom I knew to be my Lord of Warwick's Steward and he came and spoke some words to my Lord of Warwick about a quarter of an Hour after they came in and then they went away for after that I did not hear any farther Discourse Mr. At. Gen. What became of the rest of the Company Witness They went away I do not know what became of them nor whether they went some of them went in and out of one Room into another several times two or three times and came out again Mr. At. Gen. My Lord we have done with this Witness L. H. St. My Lord Warwick will you ask him any Questions E. of Warw. No my Lord. L. H. St. Mr. Attorney who is your next Witness Mr. At. Gen. Mr. Salmon the Chirurgeon who by the Coroner's Order searched the Wound Who was Sworn Mr. At. Gen. Pray Sir was you ordered by the Coroner to view the Body of Mr. Coote Salm. Yes I was ordered by the Coroner to inspect the Body of Captain Coote and to give the Jury an account of the nature of the Wounds Mr. At. Gen. Pray upon the view of the Body what Wounds had he Salm. There was two Wounds one on the Breast near the Collar-bone running downwards very deep Mr. At. Gen. Pray what part of the Breast was it and how deep was it Salm. It was on the left part of the Breast near the Collar-bone and it penetrated four or five Inches Mr. At. Gen. Can you guess at what sort of Sword it was that made the Wound Salm. No indeed Sir I cannot Mr. At. Gen. Was it a broad Sword or a little Sword Salm. The Orifice was about the length of half an Inch and about the depth of five Inches Mr. At. Gen. Was that made with a broad Sword or with a narrow Sword Salm. Indeed I cannot tell Mr. At. Gen. You say he had another Wound where was that Salm. That was on his left Side too near unto the short Ribs under the last Rib which was about the length of an Inch and of the depth of six Inches and it run through the Diaphragma Mr. At. Gen. Did you take one of those Wounds or both of them to be mortal Salm. I did look upon either of them to be mortal and to be the occasion of his death Mr. At. Gen. Can you tell whether they were both made with one and the same Sword Salm. Indeed I cannot tell that whether they were made with one Sword or two Mr. At. Gen. Cannot you tell how they appeared to be I suppose you probed them Salm. Yes I probed them both one was quite through the Diaphragma Mr. At. Gen. What time was it that you viewed the Body by the Order of the Coroner Salm. I saw the Body at Seven a Clock on Sunday night Mr. At. Gen. If my Lord of Warwick desire to ask him any Questions he may E. of Warw. My Lord I desire to ask him whether any of the Wounds were large enough to be made by a Sword run up to the Hilt Salm. No my Lord sure that they were not E. of Warw. My Lord I desiâ—e to know of him whether both those Wounds were given before or behind Salm. I can only tell you the length and depth by following of the Probe the one was downwards and the other upwards Mr. At. Gen. Do you suppose both those Wounds were given when the Person was standing backward or forward Salm. 'T is impossible to tell how they were given because of the variety of the Postures of the Body in the divers Capacities thereby of receiving the Wounds Mr. At. Gen. Pray can you tell whether they were given by one and the same Sword or no Salm. Indeed I cannot tell Mr. At. Gen. Do you know any thing to the contrary Salm. I cannot say any thing for it or against it E. of Kingston My Lords this Witness if I apprehend him right says the Wound on his Side was a large Wound Salm. Yes a very large Wound of the length of about three quarters of an Inch at the Orifice and five or six Inches deep E. of Kingston I desire he may tell whether that Wound could be given by any other than a broad Sword Salm. I cannot tell that E. of Rochester Indeed my Lords I would have him asked this Question again I know not whether he can answer it or no but I cannot but think it is proper to have some account of this matter In all Enquiries before the Coroner there is a Judgment to be made of the Nature of the Wound in order
the Hand but that was respited in favour to him which was done with intention 〈…〉 to get the King's Pardon for the Burning of the Hand which is nor yet obtained and consequently I take it he is not entitled to that Benefit which the 〈◊〉 would give him if he was either Pardoned or Burned in the Hand he is not 〈…〉 of the Conviction and therefore I think he ought not to be 〈…〉 〈…〉 What is the Resolution your Lordships please to take upon this matter Is it your Lordships pleasure to have the Opinion of my Lords the Judges who 〈◊〉 present upon this Point 〈…〉 Ay ay by all means have the Judges Opinions 〈…〉 Two things have been mentioned at the Bar which I think ought to be laid out of the Question The Conâ—â—â—â—â—tion of a Peer with respect to Burning in the Hand I suppose 〈◊〉 〈◊〉 〈◊〉 I am sure it ought not to be insinuated that if any of your Lordships Degrâ—◠〈…〉 have the Misfortune to fall into 〈…〉 the like Condition as the Gentleman now produâ—â—◠〈◊〉 to be once 〈◊〉 of a Clergyable Felony there could be any 〈…〉 such Peer as 〈…〉 without his having been Burnt in the 〈◊〉 Certainly there could 〈…〉 Statute of 1 E. 6. exempts the Peers 〈…〉 and virâ—â—lly 〈…〉 â—â—tute of 4 H. 7. as to so much 〈…〉 Statute of 18 Eliz. 〈…〉 Hand only According to the Statute in that behalf before 〈…〉 no Statute Then or Now in force to subject Peers to such 〈…〉 in such ease upon the Allowing the Benefit of the said Statute 〈…〉 6. which is as much as Clergy without Reading or Burning freed from 〈◊〉 and other Penalties of the Felony as much as Commons are by having Clergy formally allowed and being Burnt 2. Here hath been mention of a Pardon of the Burning this Gentleman in the Hand and it seems the Proceeding hath been so far as to Pass the Privy Seal I do not question the King 's Pardoning of the Burning's being as offectual as the Party's undergoing it But I say Here is no Pardon though Great Preparation for one For the Sign Manual the Signes the Privy Seal are but Warrants in such Cases and Countermandable But it is the Great Seal that speaks the King's Last and Irrevocable Intent and Passeth the Pardon or other like thing to be Granted And That hath not been obtained Here. Now the Question is cleared I take it to be this Whether this Commoner being Convicted of Felony and having his Clergy Allowed but being Unburnt and Unpardoned shall be Received and Allowed to be a Witness I am of Opinion he ought Not. For whatever Quality or Credit he might Personally be of he is by Being and Remaining a Felon-Convict Render'd Infamous in the Eye of the Law Upon the Conviction he Lost by the Intendment of Law That Credit which is necessary to a Witness And is not Restored to it by the bare Allowing of Clergy But is in the state as a Felon-Convict would have been before Purgation at Common Law Clergy or more properly called Benefit of Clergy is an Ancient Privilege whereby a Clerk charged with Felony was Dismissed from the Temporal Judge and Delivered in Custody ro his Ordinary Before whom he was to Purge himself if he could of the Offence And if he failed in his Purgation he was to Remain in the Ordinary's Prison I mean Generally And I think it not proper to this Occasion to Discourse of the Special Cases wherein the Delivery to the Ordinary was absque Purgatione This Privilege took its Root originally from a Constitution of the Pope exempting the Persons of the Clergy from the Secular Jurisdiction This the Canon-Law is full in But That Law was not throughly Received Here in England And This Matter was Moulded Ordered and Altered by our Common and Statute-Law For Instance The Canon Law gives the Privilege only to Men in Holy Orders Our Law in favour to Learning and the Desire of the English Bishops extended it to Lay-Clerks as an Old Statute calls them i. e. any Lay-man that by Reason of his Ability to Read was other Circumstances concurring in a Possibility of being made a Priest On the other side That Law would not suffer the Clergy to be Tryed before Secular Judges But Ours hath for several hundred Years subjected them to such Tryal But the Common-Law was ever clear in this That when a Man was Convicted of Felony though by the Allowing of Clergy his Life Land and Blond were saved yet That Conviction laid him under divers Penalties and Forfeitures some Absolute others Limited and Determinable He forfeited all his Goods and Chattels which he had at the time of his Conviction Absolutely not to be Restored by Purgation or Pardon He also forfeited and lost 1. His Liberty being to continue a Prisoner 2. His Capacity of Purchasing most Goods or Chattels and of Taking and Retaining the Issues and Profits of his Freehold Land to his own Use 3. His Credit so as not to be a Witness Juror 〈…〉 Three Penalties he Romained till his Purgation But by that they were Dâ—tâ—râ—â—ined As soon as he had made his Purgation he was Restoreâ— to his Liberty Capacities and Credit Purgation was the Convict's clearing himself of the Câ—ime by his own Oath and the Oaths or Verdict of an Inquest of Twelve Clerks as Compurgators The Proceeding was Before the Ordinary And for the manner of it Old Books speak of their making Proclamation for Persons to come in against his Purgation and of their enquiring into his Life Conversation and Fame and of other Formalities In all which several Statutes say there were great Abuses But it is certain that upon his Acquittal the Ordinary pronounced him Innocent and absolved from Infamy And thereupon he was Discharged from the Imprisonment Incapacities and Discredit Incident to the â—elony The Statute 4 H. 7. brings in a new thing Appointing that every Person Convict of Felony should be marked in the Hand by the Goaler in open Court Before he should be Delivered to the Ordinary And This was partly that they might taste of Corporal Punishment But principally to notifie that they had had their Clergy For the same Statute taking notice that Men were emboldened to Commit Murder Rape Robbery and other Felonies because they had the Benefit of Clergy toties quoties Ordains that no person who was once admitted to that Benefit should ever have it again for a following Offence unless he were within Orders and produced his Letters of his Orders or a Certificate of them For this Act Perkin Warbeck in his Declaration against H. 7. Brands him as an execrable Breaker of the Liberties and Franchises of holy Church Then comes the Stat. 18 El. C. 7. which for so much as Concerns this Question I desire to Read It is in these Words For the Avoiding of sundry Perjuries and other Abuses in and about the Purgation of Clerks Convict delivered to the Ordinaries Be it Enacted that every Person
which shall be Admitted and Allowed to have the Benefit or Priviledge of his Clergy shall not thereupon be Delivered to the Ordinary as hath been accustomed But After such Clergy allowed and Burning in the Hand according to the Statute in that behalf provided meaning that of 4 H. 7. shall forthwith be Inlarged and Delivered out of Prison by the Justices before whom such Clergy shall be Granted that Cause notwithstanding Then there follows a Proviso to this effect Provided nevertheless and be it Enacted that the Justices before whom any such Allowance of Clergy shall be had may for the further Correction of such Persons Detain and Keep them in Prison for such Convenient time as the same Justices in their Discretions shall think Convenient so as the same do not exceed one Years Imprisonment This Statute refers to That of H. 7. and follows the Order of it As That appointed that the Convict should be Burnt before he should be delivered to the Ordinary to have the Benefit of Purgation So This of 18. El. Appomts that he shall be Burnt before he shall be Discharged by the Justices and have the Benefit thereby Intended instead of Purgation The Councel for the Noble Lord at the Bar say that the Allowance of Clergy by Vertue of this Act freeth this Man and makes him Rectus in Curia as if he had made his Purgation and that by this Statute he is first pardoned his Crime by being Allowed the Benefit of Clergy without making his Purgation and afterwards to be Burnt in the Hand before he be delivered out of Prison and so the Burning is a Condition precedent to his Getting out of Prison not to his being Restored to his Credit But I am to seek for any Ground for this Notion in this Statute It doth not Require Clergy to be Allowed nor Give any new Vertue or Operation to it when Allowed It supposeth such a thing to be by Virtue of the Common Law But there it leaves it if there be nothing more done It is one Clause consisting of two Parts 1. Negative He that is Allowed his Clergy shall not be Delivered to the Ordinary 2. Affirmative But after that and Burning in the Hand shall be Delivered by the Justices Now If it had stopped at the first Part it had been so far from Pardoning or Restoring any Clerk Convict that it had put all into the same Condition that those were who were without Purgation viz. to be perpetually Imprisoned and Infamous Indeed it had not been Reasonable to take away such a Privilege from the Subjects without some Recompence and therefore it did not stop there But proceeds to the 2d Part and Provides that those who before were Delivered to and by the Ordinary shall now be Delivered by the Justices But withal it Declares when and upon what Terms viz. After Clergy Allowed and Burning in the Hand And This is a Satisfaction to be given to the Law before they shall have the Benefit of it I Agree if this Convict had made that Satisfaction to the Law he might have been a Witness for in that Case he would have been freed from his Discredit by Vertue of the last Words of the said Cause T is true the Words are only shall forthwith be Inlarged and Delivered out of Prison by the Justices which Literally Import nothing but Restoring his Liberty But under this prime Instance are Implied and Intended all other particulars which a Convict might be Discharged of by means of Purgation It was never the Intent of the Statute meerly to set him at Large and leave him a Felon Convict But when it is said Delivered t is meant Delivered Free freed from all Incident further Penalties as he might have been if Delivered upon Purgation This is a Reasonable Construction to a Man that observes the Opposition in the Words the Sense will appear to be as if the Law-makers had said that instead of being Discharged a Culpa et poenâ by the Ordinary upon a tedious proceeding to Purgation he shall now be so Discharged by the Justices forthwith And this also is necessary to Vindicate the Justice of this Law for since it takes from him the means he had of Regaining his Credit it is but just it should Restore it to him by this Way T is Objected that it may as well be said that he shall not be Restored to Credit till he have suffered Imprisonment not exceeding a Year as that he shall not be Restored till Burnt But That receives an easie answer for if it were for it would not Avail this Person But I take it to be otherwise A Convict is Discharged from Imprisonment and all other Penalties incident to the Conviction forthwith upon his Burning in the Hand But if there be a Commitment made by Vertue of the Proviso it is a Collateral and a new thing and the Party is not then in Prison by Vertue of his Conviction but by afresh express Order of the Judges made upon the heinousness of the Circumstances appearing on the Evidence They may and generally do forbear to Commit at all And when they do it may be for a Month or two at their Discretion The Proviso calls it a further Correction As to the manner in which this Statute works this full Discharge it hath been Disputed whether it be by Supply of Purgation or rather by a kind of Statute-pardon But I think that by force of the Statute the Party is Purged and freed of the Felony and all Penalties incident to it in nature of a Pardon In what manner soever the Statute works it t is manifest that it doth it not But upon a Condition precedent viz. After Clergy allowed and burning in the Hand Now this Person hath his Clergy allowed but is not Burnt in the Hand not has any Pardon for it And therefore is not yet Intitled to the Benefit of this Statute My Lords Councel say he is because he hath his Clergy allowed But That is claiming the Advantage upon the performing of one Part of a joint Condition which ought not to be had but upon performing Both. They might as well have pretended to it before the performance of either The Statute says after Both Clergy and Burning They say also that this Burning is no part of the Judgment as hath been held in the Case of an Appeal Be it so But I say 't is a part of the Condition in this Statute There is no Case in our Books against this Opinion But on the Contrary there are Authorities for it Holcrofts Case is in no sort applicable 〈◊〉 this Case as was truly observed by the Kings Serjeant The Opinion of my L. C. J. Hobart in Searl and Williams Case rightly Considered Confirms this I have borrowed the Book from the Gent. at the Bar and Read it He saith expresly that where a Convict is Liable to be Burnt in the Hand he is not Discharged and Restored without it because the Statute says After Burning But
Matter of Fact But whatsoever Motion is made by the Noble Lord at the Bar wherein he desires to have his Councel heard that I suppose may be considered here and this Point having been starred by my Noble Lord at the Bar as a Point of Law and not of Fact I desire to remind him of it to know whether he does insist upon it if he does not move to have the Matter argued then there is an end L. H. St. My Lords I do not think you will hear Councel upon a Matter of Fact and therefore it is not ripe till the Fact be settled for you to hear Councel E. of Warw. My Lords I humbly pray That you will hear my Councel as to that Point L. H. St. My Lord this is a Matter of Fact indetermin'd and not a Matter of Law What Opinion their Lordships will be of when they have considered the Proofs as to the Fact is one Step when that is over it will be the proper time if any Doubt be remaining with their Lordships in Point of Law to hear Councel but upon bare Matter of Fact Councel is not to be allowed E. of Roch. My Lords if there be any Debate among the Lords Whether it be a Matter of Fact or a Matter of Law we must go up to our own House but upon any Point of Law where Councel is to be heard it must be in this Place in the Presence of the Prisoner and afterwards your Lordships will Debate it among your selves E. of Nottingh I hope my Lords the Councel would not state the Case otherwise than as it is really in Point of Fact nor can this Noble Lord hope that any thing will make an Impression upon my Lords but what from the Fact rightly stated but what is supported from the Evidence and that which my Lord proposes is to have his Councel heard to a Matter of Law which your Lordships will be Judges of after you have heard it whether there be any weight in that which he supposes to be his Case That a Person assisting in a Combat on the side of him that is killed is in equal degreee of Guilt with them that are on the other side That possibly if the Fact be agreed may be a Point sit to hear Councel to before your Lordships go to Debate it amongst your selves D. of Devon If I am not mistaken my Lord of Warwick owns his being one of them that fought for he has offered Witnesses to prove That he received a Wound in his Hand by fighting If my Lord of Warwick thinks that there is a difference between his being on Mr. Coote's side and theirs that were on the other side he would have his Councel heard how far it will difference his Guilt and the Nature of the Crime from what it was with them on the other side I cannot think that can be to any great purpose to have that Argued but if your Lordships please you may hear his Councel what they have to say to that Matter but otherwise I cannot think but that his Lordship will acknowledge that the Matter of Fact that he was engaged in the Quarrel E. of Peterb My Lords I desire if this be a Point that my Lords Councel should be heard to that it should be stated as a Point of Law and then your Pordships will consider of it L. H. St. As well as I could apprehend it as it was offered by my Lord Warwick this was what he desired to have his Councel heard to Tho the Persons engaged in the Quarrel on the opposite Party to Mr. Coote have been tried and found guilty of Manslaughter yet he is not in equal degree of Guilt with them he being engaged on Mr. Coote's side and therefore his Lordship's Case differs from theirs who fought against Mr. Coote This Point he would have Argued by his Councel before your Lordships as a Matter of Law founded upon the Fact now the Fact of the Case must arise from the Evidence as it has been given which has not yet been debated or settled by your Lordships and till that be agreed to be the Case no Question of Law does properly arise D. of Leeds My Lords if possible I would put this Matter into its true Method for indeed I think we have been all this while out of the way The Noble Lord at the Bar has desired to have his Councel heard this House has allowed him Councel in Matters of Law I would desire that the Councel would state the Case so to your Lordships that it may appear to be a Case fit to be Argued that so it may receive your Lordship's Judgment thereupon My Lord 's own bare proposing of such a thing will not be enough to encline your Lordships to be of Opinion perhaps one way or other but I would pray your Lordships That you would direct the Councel that are assigned for my Noble Lord at the Bar to propose that to your Lordships as a Point of Law that he ought to insist upon I think it is apparent to every body that no Point of Law can arise but upon Matter of Fact which is agreed to be Proved in any Case now the Proofs of the Fact we have heard now that which I would propose to your Lordships is That instead of Hearing his Councel to Argue in Point of Fact what is not yet agreed upon to be the Fact they should state such a Point of Law as they would Argue upon and then whether you would think it a Point of Law or not a Point of Law we must go into another place where it may be debated whether it be such a Point of Law as that Councel should be heard to it E. of Peterb My Lords I hope you will forgive me for interposing in this Matter but that which I have to say to it is this I am far from giving any Opinion as yet as to the matter of Fact whether my Lord of Warwick was Mr. Coote's Friend or his Enemy I know it is not a proper place for that Matter to be debated in but my Noble Lord at the Bar desires to have his Councel heard as upon that Point as if the Fact were agreed Truly till the Fact be agreed I question whether we can give any Judgment or Opinion one way or other if I observ'd aright the Evidence for the King aimed at somewhat else I shall not say what my Opinion now is till we come to debate it among our selves but here is a desire of having Councel heard but there is no Question of Law stated but it depends upon a matter of Fact which is not yet determin'd by your Lordships before whom the Consideration of both Fact and Law doth lye Whether a Person that is engaged on the side of the Party that 's kill'd in a Quarrel where several Persons on both sides are concerned be as much guilty as those that are concerned on the other side M. of Norm My Lords I do
Voices and if any of them would Sum up the Evidence I believe it would be better heard and consequently better apprehended by your Lordships for I had rather any Expedient should be found out to comply with the Orders of the House and preserve them than that any irregular Thing should be done for the breaking the Orders of the House upon any Account whatsoever L. H. St. Make another Proclamation for Silence Cl. of the Crown Serjeant at Arms make Proclamation Serj. at Arms. O Yes O Yes O Yes My Lord High-Steward of England his Grace does straitly Charge and Command all manner of Persons here present to keep Silence upon pain of Imprisonment E. of Bridgewater Truly my Lords The Noise about the Court is so great that we who sit much nearer to the Bar than the Noble Lord who made the Motion for the removal of the Councel into another Place cannot hear Mr. Sollicitor what he says and therefore I think some of the Guard should be sent out to clear all the Passages about the Court that there may be no Noise for it is the Noise of the People without that makes it so difficult to hear the King's Councel L. H. St. Let some of the Guard without take care that there be not that Noise made and whosoever does make a Noise let him be taken into Custody Then another Proclamation was made for Silence upon which there was a greater Quietness in the Hall L. H. St. Mr. Sollicitor There is hopes now since there is not so great Noise as there was that you may be heard by my Lords You must use the best Endeavours you can that you may be heard E. of Roch. If that Gentleman cannot speak out so well that he can be heard those of the King's Councel that have better Voices must Sum up the Evidence Mr. Sol. Gen. My Lord I speak as loud as I can E. of Roch. There are others of the King's Councel pray let them do it then Mr. Attorney he being nearer and within the Bar. L. H. St. I know not whether Mr. Attorney be prepared for the Summing up of the Evidence because he Examined the Witnesses and the King's Councel usually allot to themselves the particular Parts which they intend to take E. of Roch. Then let Mr. Sollicitor go on Mr. Sol. Gen. I would shortly observe to your Lordships what Evidence hath been given to you on behalf of the King in this Case against that Noble Lord the Prisoner at the Bar for the Offence for which he stands Indicted The first Witness that was produced was the Drawer at the Greyhound Tavern in the Strand where this Quarrel that was the occasion of the Death of this Person that was slain happn'd and he tells you that that night there was at his Master's House my Lord of Warwick my Lord Mohun Capt. French Capt. Coote the Person that was kill'd and Mr. Dockwra and after they had been there some time that other Person that was the Sixth concerned in the Scuffle Mr. James was sent for and he came in when it was pretty late there they continued till One or two a Clock and then they came down to the Bar and Order was given for to call Coaches but it being so late and Sunday morning they could not find Coaches and then there was Orders for the getting of Chairs when some Chairs were brought Mr. Coote and Mr. French went into two of the Chairs but my Lord Mohun interposed and said there should be nothing done that night and that if they went away he would call for a File of Musqueteers from the Guard and secure them and thereupon they came out of the Chairs and went into the House and there was the Noise of Swords clashing heard at the Bar Capt. Coote said he would Laugh when he pleas'd and Frown when he pleas'd and they parted Three were on one side and three on the other of the Bar my Lord of Warwick my Lord Mohun and Capt. Coote were on one side Capt. French Capt. James and Mr. Dockwra were on the other side Indeed he says my Lord Mohun and my Lord Warwick did what they could to pacifie them and threatned to send for the Guards but away they went The next Witness was Thomas Browne and he was the Chairman that carried Mr. Coote and he says That there was an Endeavour by my Lord of Warwick and my Lord Mohun to put off the Business at that time and that they did what they could to have put it off and that even after they were in their Chairs when they were turned up St. Martins-Lane there they stopt at the Back Door of the Cross-Keys Tavern and that while they stood there with their Three Chairs Three other Chairs came by and then Capt. Cooâ—e â—id them put up and follow after those Chairs as fast as they could to Leicester-fields The next Witness is William Crippes who was the other Chairman that carried Capt. Coote and he gives your Lordships much the same Account that Browne gave before and his Evidence was just to the same purpose That my Lord of Warwick and my Lord Mohun endeavoured to pacific the Matter and that there should be an end of the Business for that night and let it alone till another time and that my Lord Mohun threatn'd to send for the Guards and secure them and would have had them gone home that is Mr. Coote either with him to his Lodging or he would go to Mr. Coot's but he could not prevail Then my Lord Mohun said If he would go on his Lordship would go and see an end of the Business The next Witness was one Crattle who was one of the Chairmen that carried my Lord of Warwick and he says That my Lord Mohun and my Lord of Warwick did endeavour what they could to put off the Matter till the next morning but that they could not prevail That afterwards when he carried my Lord from Leicester-fields to the Bagnio my Lord borrowed a Handkerchief of him to wrap his Hand in for he said he was wounded but by whom that Wound was given does not appear nor how he came by that Wound any otherways then as his Lordship himself says that it was given him by Mr. James The next was the other Chairman that carried my Lord of Warwick which was John Gibson and his Testimony need not be repeated because it did not differ from the others The next Witness was Robert Applegate who was the Chairman that carried my Lord Mohun and he says That there was an Endeavour used by my Lord upon his setting down in St. Martins-Lane to quiet Capt. Coote and prevent any Quarrel at that time but he says when they would go on my Lord Mohun said he would go and see the end of it and thereupon they went on towards Leicester-fields to the end of Greenstreet which is at the lower end of the Square The next Witness was Palmer who was one of the Chairmen that
carried Mr. French to the Bagnio in Longacre and he tells your Lordships what happen'd upon his carrying of him thither how immediately after his coming there my Lord of Warwick came thither and they knock'd at the Door the same time and that Capt. French was very much wounded and they went into the House together and that French would have had them pull off his Cloaths to see his Wounds for he believed he was a dead Man The next Witness was the Chairman which carried Mr. James and he only tells your Lordships That he carried a Gentleman into Leicester-fields that my Lord Mohun endeavoured to have put off the Business for that night but who the Person was that he carried he cannot so well tell nor give an account of but when he had set him down at the further end of the Square there he left him and he knows no farther Then there was the Surgeon at the Bagnio in Longacre who gives your Lordships an account That about Two of the Clock in the morning on the Sunday my Lord of Warwick and Capt. French came in there Capt. French was wounded in the Body and my Lord Warwick was wounded in the Hand and my Lord Warwick did take extraordinary Care of Capt. French and would not have the Door open'd to any body nor his Lordship known to be there That afterwards Capt. James and Mr. Dockwra came to the Door and my Lord came to the Door himself and when he saw who they were he ordered them to be let in and that there was a Discourse about going into the Country and that there was a fear that Coote was kill'd This is the Effect of the Testimony both of the Surgeon and his Servants and 〈…〉 be observed That when Capt. French came in his Sword was nor bloody but my Lord of Warwicks Sword was bloody almost all over and that was 〈…〉 of the next day and there are several Witnesses both Men and Women of 〈◊〉 House that give your Lordships an account much to the same purpose Then 〈◊〉 was Capt. Duckinfield who says That my Lord Warwick came to his Lodgings and they went in a Coach together to the Tavern in Cornbill and then there was a Discourse of going into the Country and my Lord said That he was afraid his Friend Mr. Coote was kill'd but they had no absolute Newe of his being kill'd at that time for it should seem my Lord of Warwick forsook the Field as 〈◊〉 as the Fatal Stroke was given which by whom given it was is left to your Lordship's Consideration Indeed it is pretended by my Lord that the Wound that he had in his Hand was given him by Mr. James but nothing of that is made apparent to your Lordships upon the Proofs Then we came to give your Lordships an account of the nature of the Wounds that Mr. Coote had in his Body and for that we produced both the Surgeon that did probe the Wounds by the Order of the Coroner and the Coroner himself Indeed we could not get a positive answer from either the Surgeon or the Coroner whether the Wounds were given by one and the same Sword or by different Swords but then your Lordships have the Testimony of Mr. Turner who was Capt. Coote's Servant and who knows his Master's Sword and it hath been shewn to him and he says that is his Master's Sword that he went out with and it can be easily judg'd whether he could give himself those Wounds by that Sword And your Lordships have likewise had brought before you another Sword which was left at the Bagnio in Longacre that was Capt. French's that had no Blood at all upon it but my Lord of Warwick's 〈◊〉 by all the Evidence had a great deal of Blood upon it Then came the Witnesses for the Prisoner at the Bar this Noble Lord my Lord Warwick and the Sum of the Testimonies that they have given is of a great deal of Kindness between my Lord Warwick and Capt. Coote That my Lord lent him a Hundred Guinea's to purchase his Commission in the Guards and he had but Three of Four hundred Guinea's which was necessary to make the Purchase and there are several of them that do Testifie that they always look't upon Capt. Coote and my Lord of Warwick to he very good Friends and that there never was any Quarrel between them and that is the Sum of what the Evidence on that side did Testifie And this my Lords I take to be the Sum of the Evidence that has been given on either side and when I have laid it thus before your Lordships I must submit it to your Lordships Judgment what Opinion you will be of upon the whole Matter only there is this one Observation that I would make to your Lordships upon this Evidence That there is not one Witness that has given you an Account satisfactory by whose Hand these Wounds were given to Mr. Coote and therefore tho it is apparent my Lord of Warwick was in the place where the Mortal Wound was given yet by whose Hand it was given is not known until that can be known every Person that was there must remain under the Imputation of the same Guilt as having a Hand and contributing to his Death it is certain and cannot be denied that this Noble Lord my Lord at the Bar was in the Field wherein there was actual Fighting for he does not deny it himself but says that he was engaged particularly with Capt. James when Capt. Coote was engaged with Capt. French between whom as it is alledged the Quarrel was but that is no way in Point of Fact made appear to your Lordships and there being such Suspicions and Circumstances of the Blood upon my Lord of Warwick's Sword and the great Concern that he was in when he came to the Bagnio and desiring to be concealed and that no body should know that he was there and the Care he took of Mr. French who is the pretended Person that did the Fact is that which is to be submitted to your Lordships and it is to be observed that Mr. French's Sword was not Bloody but only Dirty but my Lord of Warwick's Sword was very Bloody from the Hilt to the Point and he was in a great Consternation when he came into the House There is likewise a Circumstance which your Lordships will please to observe that even Mr. Coote's Sword was brought into the House by some of the Company that were there and whatsoever this Noble Lord pretends of his Friendship to Mr. Coote yet it seems by his Care that he took of Capt. French he had as much Friendship for him There is another Circumstance that has been Testified which it will be fit for your Lordships to take into Consideration and make some Observation of That is the nature of the Wound It seems he had two Wounds one on the left side of the Breast near the Collar Bone and that was downward and yet
his Man that was here produced as a Witness does Testifie that he was one that used his Right Hand and then it is a wonder that he should receive such a sort of a Wound in that part and the other Wound was on the left side too but it was upward and how that could be given by one that was a Right Handed Man is certainly a very great Wonder and the Wounds being both given upon the same side it cannot but be concluded that they were given by one and the same Sword Another Circumstance which relates to my Lord of Warwick is that when he came into the Bagnio after the Fact was over he would have himself denied to be there and went to the Door when James and Dockwra came in and his declaring his desire of going into the Country These we say are Circumstances that do induce a Doubt That my Lord of Warwick had a Concern upon him of great Guilt of having a Hand in this Man's Death It is indeed pretended by my Lord of Warwick That Mr. Coote was a Person that my Lord of Warwick had a Kindness for but it is plain by the Evidence that he left him dead in the Field and did not take any Care of him but took a great deal of Care of Capt. French who it is pretended was the Person that fought with Coote when he came to the Bagnio and there is nothing of Kindness at this time pretended nor any thing of a Defence to this Matter offer'd by my Lord of Warwick but only what the Chairmen say that he endeavoured to put it off to another time These my Lords are all the Observations that I shall make upon the Evidence in this Case How far this Evidence upon Consideration will weigh with your Lordships I must submit it to you If my Lord of Warwick did do the Fact as these Circumstances we think may incline your Lordships to believe he did it will surely he Murder but how far the Evidence comes up to the Proof of that we must humbly submit to your Lordships who are the Judges of it and we leave it intirely to your Consideration upon what you have heard L. H. St. Then it seems you have done on all sides Councel Yes my Lords Lords Then Adjourn Adjourn L. H. St. Is it your Lordship's pleasure to Adjourn into the House of Lords Lords Ay Ay. L. H. St. This House is Adjourned into the House of Lords Then the Lords went back to their own House in the same Order they came into the Court in Westminster-Hall and Debated the Matter among themselves what Judgment to give upon the Evidence that had been heard and in about Two Hours time they returned again into the Court erected upon the Scaffold in Westminster-Hall and after they were Seated in their Places the Lord High Steward being Seated in his Chair before the Throne spoke to the Lords thus L. H. St. Will your Lordships proceed to give your Judgment Lords Ay Ay. L. H. St. Your Lordships will give me leave as I ask your Lordships your several Opinions to take so much time as to write down the Opinion of every Lord. Lords Ay Ay. Then the Lord High Steward asked this Question of every one of the Lords there present beginning with the Puisne Baron which was the Lord Bernard L. H. St. My Lord Bernard Is Edward Earl of Warwick Guilty of the Felony and Murder whereof he stands Indicted or Not Guilty The Lord Bernard stood up in his Place uncovered and laying his Right Hand upon his Breast Pronounced his Judgment thus L. Bernard Not Guilty of Murder but Guilty of Manslaughter upon my Honour The same Question was asked severally of all the Lords who in the same Form delivered their Opinions as followeth L. Haversham Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Herbert of Cherbury Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Weston Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Ashburnham Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Cholmley Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Jeffreys Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Godolphin Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Guilford Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Oselstone Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Osborne Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Craven Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Cornwallis Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Granville Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Berkly Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Laxington Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Reckingham Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Lucas Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Culpeper Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Vanghan Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Byron Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Jermâ—n Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Leigh Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Raby Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Howard of Escrick Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. â—â—velace Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Hunsdon Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. North and Gray Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Wharton Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Eure. Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Willoughby of Parham Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Dadley Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Ferres Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Willoughby of Eresby Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Audley Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Abergaveny Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. H. Steward My Lord Viscount Lonsdale Is Edward Earl of Warwick Guilty c. L. Viscount Longaville Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. Viscount Townsend Not Guilty of Murder but Guilty of Manslaughter upon my Honour L. H. Steward The Earl of Grantham Is Edward Earl of Warwick Guilty c. E. of Grantham Not Guilty of Murder but Guilty of Manslaughter upon my Honour E. of Albemarle Not Guilty of Murder but
pleased to permit my Lord Mohun to have Pen Ink and Paper Lords Ay Ay. Pen Ink and Paper were carried to my Lord by one of the Clerks of the House Mr. Cooper May it please your Lordships my Lord Mohun the Prisoner at the Bar stands Indicted by the Grand Jury of the County of Middlesex before Commissioners of Oyer and Terminer in that County and the Indictment sets forth That Edward Earl of Warwick and Holland Charles Lord Mohun Baron Mohun of Okehampton in the County of Devon Richard French Roger James and George Dockwra the 30th of October in the Tenth Year of His Majesty's Reign with Force and Arms at the Parish of St. Martin in the Fields in the County of Middlesex upon one Richard Coote Esq Feloniously Wilfully and of their Malice afore-thought did make an Assault and that the said Edward Earl of Warwick and Holland with a drawn Sword then in his Right Hand the said Richard Coote upon the left part of his Breast near the Collar Bone did Strike Stab and Thrust giving him thereby a Mortal Wound of the breadth of half an Inch and the depth of 5 Inches of which Wound he instantly died That my Lord Mohun Mr. French Mr. James and Mr. Dockwra Feloniously Wilfully and of their Malice afore-thought were present aiding and abetting my Lord of Warwick and Holland the said Richard Coote in manner aforesaid to Kill and Murder And then concludes so that the Earl of Warwick and Holland the said Lord Mohun Richard French Roger James and George Dockwra the said Richard Coote in manner and form aforesaid Feloniously Wilfully and of their Malice afore-thought did Kill and Murder against the Peace of the King his Crown and Dignity To this Indictment my Lord Mohun has pleaded Not Guilty and for his Tryal has put himself upon God and your Lordships his Peers We shall call our Witnesses and produce what Evidence we have to give to prove my Lord Mohun Guilty and so submit it to you Mr. Attor Gen. My Lords This Noble Lord my Lord Mohun the Prisoner at the Bar stands Indicted for the Death of Mr. Coote one of the King's Subjects as your Lordships have heard in the Case that was before you yesterday to which Indictment he had Pleaded Not Guilty and for his Tryal has put himself upon my Lords who are his Peers I shall very shortly open the Substance of the Evidence that we shall offer for the King against my Lord the Prisoner at the Bar We shall produce Evidence to prove That at the time laid in the Indictment the 29th of October at night and the next morning which was Sunday my Lord the Prisoner at the Bar and my Lord of Warwick who has been found Guilty of Manslaughter upon this Indictment before your Lordships and those other Persons that are named in the Indictment Capt. French Capt. James and Mr. Dockwra and the Gentleman that was kill'd happen'd to be at the Greyhound Tavern in the Strand which was then kept by Mr. Lockett and continued there a great part of the night indeed till the next morning about One or two of the Clock in the morning There was my Lord of Warwick my Lord Mohun Capt. French Capt. Coote and Mr. Dockwra but very late in the night the other Gentleman Mr. James was sent for A Messenger was sent particularly to have him come to them There they continued Drinking till about One or two of the Clock in the morning then Coaches were sent for then the Drawer of the House will acquaint your Lordships that he went for them and could not get any at that time being a very dark night and when there could be no Coaches had then there were Chairs called for and the Drawer went to call Chairs and as we shall make it appear to your Lordships when the Drawer came back there did appear to be a Quarrel among them for there was clashing of Swords and they seem'd to be divided into Two Parties on the one side were my Lord of Warwick my Lord Mohun the Prisoner at the Bar and Mr. Coote On the other side were Capt. French Capt. James and Mr. Dockwra and first there were two Chairs came to the Door into which Mr. French and Mr. Coote went and when they were in the Chairs my Lord Mohun came out and said he would kill any of the Chairmen that went away and so they put up again and the Gentlemen came out and came into the House but afterwards Mr. Coote went into the first Chair and my Lord of Warwick into the next and my Lord Mohun into the third and then they went away and the other Three Gentlemen went into the other three Chairs and followed them Your Lordships will hear whither they were all carried When they came to the End of St. Martins-Lane in the Strand my Lord Mohun would indeed have endeavoured to have perswaded Mr. Coote in particular to have gone home for that night and let the Business alone till another time but Mr. Coote would go on and while the 3 Chairs that carried my Lord of Warwick my Lord Mohun and Mr. Coote to St. Martins-Lane End which were the 3 first Chairs that went away from Lockett's the other 3 Chairs that went after them overtook them and then by Mr. Coote's Command the Chairmen that carried him went forward towards Leicester-fields and then this Noble Lord my Lord Mohun did say If you do go on I will go and see the End of it and ordered the Chairmen that carried him to go after those Chairs in which my Lord of Warwick and Mr. Coote went and accordingly they did go till they came to the hither end of the Square in Leicester-fields near Greenstreet End where my Lord Mohun got out of his Chair paid for all the 3 Chairs 3 s But we shall not be able to give to your Lordships an Account particularly as to my Lord Mohun what he did afterwards but we shall call our Witnesses to prove what we have opened and when our Witnesses are heard we shall leave the Matter to your Lordships Judgment Samuel Cawthorne which was the Drawer at the Tavern at Lockett's was Sworn and gave his Evidence to the same Effect that he did the day before Mr. At. Gen. Pray Will you acquaint my Lords who were at your House the 29th and 30th of October last Saturday night and Sunday morning Sam. Cawthorne There were my Lord of Warwick my Lord Mohun Capt. Coote Capt. French Mr. Dockwra and Mr. James Mr. At. Gen. How long did they continue there Cawthorne Till between One and two of the Clock in the Morning Mr. At. Gen. Pray Will you acquaint my Lords what happened at your Master's House at that time you remember what Evidence you gave yesterday Tell the whole Matter again because it relates to another Noble Lord that is now at the Bar. Cawthorne The Reckoning was call'd for about that time and I went up and took the Reckoning and all
the Gentlemen came down to the Bar and Coaches were sent for I went for them but no Coaches could be had Then Chairs were sent for and I called for Chairs and there came Two Chairs to the Door and into those Two Chairs went Capt. Coote and Capt. French and my Lord Mohun and my Lord of Warwick endeavour'd to quiet them and to put off the Business till another day and thereupon they came out of the Chairs and came into the House again My Lord Mohun did desire there might be no Quarrel and would have Mr. Coote go home with him to his Lodgings at Westminster or he would go with Mr. Coote and said there should be no Quarrel that night There were then 3 of them of one side of the Bar and 3 of the other side and their Swords were all drawn My Lord of Warwick my Lord Mohun and Mr. Coote were of one side and Capt. French Capt. James and Mr. Dockwra were of the other side I was without the House when their Swords were first drawn but I heard my Lord Mohun say I have got a cut Finger by endeavouring to part them and at first when the Chairs came on my Lord Mohun said If they did Quarrel he would send to the Guards for a File of Musqueteers and secure them so that he did what he could to prevent any Quarrel at all and when he had received the Wound in his Hand I help'd him to a Napkin to wrap his Hand in upon the Bleeding of it Then my Lord of Warwick my Lord Mohun and Capt. Coote went away in 3 Chairs and my Lord Mohun gave Order to go down to Westminster and there were 3 Chairs called for by the other 3 Persons two did come and Capt. French and Capt. James went away in them and the 6th not being come they stay'd till it did come and then they 3 went away too The Chairs were all order'd to go home with them My Lord of Warwick and my Lord Mohun gave Order to their Chairs to keep close with Mr. Coote and the other 3 Chairs immediately follow'd Mr. At. Gen. Pray Will you consider and recollect with your self Was Mr. James there at first Cawthorne No I was sent for him about Ten a Clock at night and there he continued with them till they went all away in the 6 Chairs and he was almost Fuddled when he came in Mr. At. Gen. When James came in Was his Sword drawn Cawthorne His Sword was in the Scabbard but the Scabbard was broken and he took and broke his Sword stamping upon it Mr. At. Gen. Pray can you tell you being up and down in the Room what was the occasion of the Quarrel Cawthorne Indeed I can't tell but some Words past when they were below stairs by the Bar from Capt. French That he would Laugh when he pleas'd and Frown when he pleas'd and Mr. Dockwra did say That they would fight them when-ever they pleas'd when they went away but I did not observe that there was any Quarrel between them while they were above nor any Swords drawn till after I came from calling the Chairs Mr. At. Gen. Were all the Swords drawn at once Cawthorne They were all drawn when I came in from calling for the Coaches and the Chairs and 3 were within the Bar and 3 were without They were putting up their Swords when I came in again Indeed I do not know any thing of the Quarrel L. H. St. My Lord Mohun Will you ask this Witness any Questions L. Mohun Indeed I think I need not ask him any Question but yet if your Lordships please I would ask him this Whether directly or indirectly I was any ways concerned in the Quarrel Or Whether I did not endeavour all that ever I could to quiet ' em Cawthorne Yes indeed my Lord Mohun did endeavour all that ever he could to prevent any Quarrel at that time L. Mohun Did I say any thing tending to the promoting of a Quarrel or Fighting among them Cawthorne No my Lord Mohun did not promote any thing of the Quarrel between 'em but he did say 2 or 3 times that he would send for the Guards to secure them and keep them from Fighting both at the Door of the House and at the Bar and ask't for a Napkin to wrap up his Hand in for the Wound which he said he got in endeavouring to quiet and part them and prevent their fighting L. Mohun That is all that I would ask him whether I did not endeavour all I could to prevent any Quarrelling or Fighting at that time Cawthorne Yes indeed my Lord did so L. H. St. He has said so already my Lord and therefore there does not need any further Examination of him to that Point If both sides have done with this Witness let him go down Which he did L. H. St. Then Mr. Attorney Who is your next Witness Mr. At. Gen. Our next Witness is Thomas Browne who was one of the Chairmen that carried Mr. Coote into Leicester-fields Then he was Sworn L. H. St. What is the Question you would ask him Mr. Attorney Mr. At. Gen. My Lords I desire he may be Ask't and Examined and acquaint your Lordships who it was that he carried from Lo 〈◊〉 's the 29th of October last to Leicester-fields and what time it was of the night Browne I carried Mr. Coote in my Chair Mr. At. Gen. Whither were you directed to carry him Browne To Leicester-fields M. At. Gen. What time of night was it Browne It was 3 quarters past One as near as I could guess Mr. At. Gen. Pray What other Chairs were there that went along with you Browne There were Two other Chairs Mr. At. Gen. Who were in those Chairs pray Browne There were my Lord of Warwick in one and my Lord Mohun in the other Mr. At. Gen. Did you 3 go away from Lockett's together Browne Yes we did and when we were bid to take up we went to the end of St. Martins-Lane and turning up at the end of St. Martins-Lane there my Lord of Warwick and my Lord Mohun called out to Capt. Coote to stay and to turn down to go to Westminster but Mr. Coote would turn up the Lane and my Lord of Warwick and my Lord Mohun made a stop at the Back Door of the Cross-Keys Tavern and both of them perswaded Mr. Coote to put it off till the next morning but he would not he said he would make an end of it that night M. At. Gen. Pray recollect your self Did they name among them what their Business was that they would make an end of Browne No they did not Mr. At. Gen. Who was it that stopt at St. Martins-Lane End Browne When we were turning up at St. Martins-Lane End my Lord of Warwick and my Lord Mohun call'd out to stop and ask't Mr. Coote whither he was going and when he said to Leicester-fields my Lord Mohun call'd out to us to set down which we did at the Back Door
of the Cross-Keys Tavern They did both of 'em my Lord Warwick and my Lord Mohun perswade Mr. Coote to go home to Westminster and not to end the Business that night but he would go on and while we were there there went 3 other Chairs up St. Martins-Lane on the other side of the way then Mr. Coote who was in our Chair bid us take up and follow those Chairs into the Fields and Swore Dam him he would run his Sword into one of us if we did not make haste and overtake those other Chairs and go before them I think his Words were Damn me I 'le run my Sword in your Breech if you don't make haste and get before that other Chair Mr. At. Gen. You say then they went all away together up to Leicester-fields Browne Yes they did so L. Mohun I desire he may be ask't whether I did not desire him to go home with me to my Lodging at Westminster Browne Yes you did and beg'd of him as if it had been for an Alms That he would put it off for that night but when the other Chairs past by us at Charing-Cross in St. Martins-Lane he would have the Chair taken up and us to make what haste we could to get before 'em thither or else he Swore Damn him he would run his Sword into one of us if we did not make haste to get to Leicester-fields before the other Chairs that went up the other side of the way Mr. At. Gen. When the other Chairs were past by and you went away to Leicester-fields pray tell my Lords what happn'd then Browne We went away to Leicester-fields and when we came to Green-street End and were entring upon the Square upon the broad Stones Mr. Coote call'd out to us and bid us to set him down and so did the other 2 Chairs and when he put his Hand in his Pocket to discharge us my Lord of Warwick put his Hand in his Pocket to pay the 3 Chairs and Mr. Coote offer'd Half a Guinea to Discharge the Chairs and my Lord Mohun did produce 3 s and with it discharged all the 3 Chairs and they all 3 walked away together forward upon the Broad Stones on the Right Hand side of the way It was so dark a night I could not see half a dozen yards from me It was the darkest night I think that ever I saw in all my Life and therefore I cannot tell what became of them after they went out of the Chairs Mr. At. Gen. Pray Did you see my Lord Mohun afterwards Browne No I did never see my Lord Mohun afterwards till now here at the Bar. Mr. At. Gen. You say it was so dark that you could not see 3 yards from you pray What did happen afterwards when you were in the Field Browne A little while after we had set down these Gentlemen I fill'd my Pipe out of my Box and before I could light it I heard a Calling Chairs Chairs and I went up towards the end of the Square where the Noise was and when I came there they would have had me lift the Chair over the Rails and I told them if I did I could not lift it over again but they would needs have me lift it over and I did so and by the light of the Lanthorn I saw Capt. French and Capt. James holding up Capt. Coote and they did desire me to take him into our Chair but he was in such a Condition that I could not get him into the Chair It was before I could well light my Pipe the Chairs were call'd Mr. At. Gen. Who did call can you tell Browne No indeed I cannot tell who did call Chairs but it was a Voice from the upper end of the Fields and we lifted our Chair over the Rails into the Fields and there were two Gentlemen holding up another Man I have heard it said it was Capt. French and Capt. James and they cried out Dear Coote Dear Coote and would have had him gotten into the Chair but we could not and my Lord of Warwick did then say If any damage did come to the Chair tho it were 100 l we should be satisfied the damage but we were not able to get him into the Chair and so there we left him Mr. At. Gen. You say you see Two Gentlemen holding up Mr. Coote and 't was a very dark night How could you tell who those Gentlemen were Browne I could not see any thing of 'em till we came up with the Candle close to ' em Mr. At. Gen. And what did they say when you came up close to the Chair Browne They offer'd me 100 l Satisfaction for any Damage to my Chair but they could not get him in for he was at that time dead I believe for we went to hale him up and to get him into the Chair but we could not do it Mr. At. Gen. Can you tell who the Two Persons were that held him up Browne No but by the description of the Persons they had such Cloaths on as that they must be Capt. French and Capt. James but indeed I cannot Swear directly who they were that were there nor who they were that call'd for Chairs at the upper end of the Field but when our Chairs was lifted over again over the Rails and we came to the Corner to see who should be taken in there came one to us who bid us carry him to the Bagnio in Longacre and thither we did go accordingly 〈…〉 you tell who the Persons were that held up the 〈…〉 would have to be got into the Chair 〈…〉 〈…〉 can you describe 'em so as to know 'em whether 〈…〉 those two Gentlemen 〈…〉 and my Lord Mohun were not there I 'am sure for I 〈…〉 with them before and when I came up 〈…〉 was one of them was â—igger than my 〈…〉 and the â—lder of them had other sort 〈…〉 that time as we could see when we 〈…〉 〈…〉 any lights of the Lamps that are usually in the 〈…〉 Square 〈…〉 very dark Night and we 〈…〉 that I am sure of and there was nobody else that 〈…〉 the Field 〈…〉 two Gentlemen 〈…〉 we had brought up before to the Square and 〈…〉 Lord Mohun at the bottom of the 〈…〉 tell 〈…〉 but 〈…〉 therefore they would not come 〈…〉 coming up and that we could not 〈…〉 over the Rails again and 〈…〉 〈…〉 and that is how far the 〈…〉 that is 〈…〉 â—nd to the place 〈…〉 again at the upper end of the Pâ—â—â—â— where â—e 〈…〉 holding up Mr. Coote and endeavouring to get him 〈…〉 〈…〉 as near as 〈…〉 〈…〉 means fifty Yards from the upper 〈…〉 Fields 〈…〉 〈…〉 at the very 〈…〉 〈…〉 of St. 〈…〉 〈…〉 in 〈…〉 〈…〉 other Chairs 〈…〉 of my 〈…〉 could 〈…〉 light 〈…〉 calling for 〈…〉 up our Chair 〈…〉 you two Gentlemen holding up 〈…〉 my dear Coote 〈…〉 it was that called for the Chairs the 〈…〉 〈…〉 would 〈…〉 bring our Chair over 〈…〉 and when we came up to
other end of the Square Mr. Attorney General Did you see any Gentlemen as you came down walking up towards the Standard-tavern upon the pav'd Stones Edwards No indeed my Lords not that I remember but I did see the other three Chairs as I past by at Green-street end who were in 'em or what was become of them that were in 'em that I can't tell Mr. Attorney General What did they say to you any of 'em at that time Edwards They askt us if we were going away and we told 'em Yes we were discharg'd Mr. Attorney General But pray did you not meet any of the other Gentlemen upon the pav'd Stones Edwards No indeed I did not see to the best of my Remembrance any other Gentlemen upon the pav'd Stones Mr. Attorney General What did the other Chair-men say to you Edwards They askt if we were coming away and we left 'em behind us Lord High Steward Has my Lord Mohun any Questions to ask him Lord Mohun No I have not Lord High Steward Mr. Attorney who is your next Witness Mr. Attorney General Jackson who was the Chairman that carryed Captain James He was Sworn Mr. Attorney General Pray will you acquaint my Lords who you carryed from Lockets to Leicester-fields Jackson Captain James There were six Chairs in all I do not know who went in the other Chairs but in the three Chairs that went together when we went there was Ceptain Docwra Captain French and Captain James Mr. Attorney General And where did you set him down Jackson At the Standard-Tavern in the Square of Leicester-fields Mr. Attorney General What became of him after you set him down Jackson We knockt twice at the Tavern-door and then he gave us a Shilling and we went away presently and went down on the left Hand upon the pav'd Stones towards Green-street end Mr. Attorney General Did you meet any Persons coming up upon the paved Stones Jackson Yes my Lord I did Mr. Attorney General Can you tell who those Persons were Jackson Indeed I cannot tell Mr. Attorney General How many were they in number Jackson They were two or three but it was so dark that I cannot tell how many they were Mr. Attorney General Which way were they walking Jackson They were going up towards the middle Street Mr. Attorney General How far was that from the Standard-tavern Jackson It might be about fixty Yards from the Standard-tavern Mr. Attorney General You say â—here were three Chairs standing at the end of Green-street when you came by Jackson Yes there were so Mr. Attorney General Had you no discourse with them Jackson No indeed I had not Mr. Attorney General Did you not ask them why they staid thereâ— Jackson No indeed I did not we past by and went home Mr. Attorney General You know my Lord Mohun don't you Jackson Yes I do very well Mr. Attorney General Was not my Lord Mohun in that Company Jackson He was when the six Chairs were call'd to Lockets but I did not hear any Discourse that I can remember that past among 'em nor do I know or did hear what became of my Lord Mohun afterwards Mr. Attorney General Were those the other three Chairs that went away from Lockets first that you saw at Green street end Jackson Indeed my Lords I believe so I cannot swear that they were those three Chairs when we had set down Captain James we did not look back any way at all but went away home it being so late and so dark Lord High Steward My Lord Mokun will you ask this Witness any Questions Mr. Attorney General Then my Lord we shall call William Salmon who was the Surgeon that did search the Wound by the Coroner's Command when he took the Inquisition upon the view of the Body Who was Sworn Mr. Attorney General Pray did you view the Body of Mr. Coote after he was Dead Salmon Yes I did view his Body by the command of the Coroner at the Watch-house where it lay in St. Martins-lane Mr. Attorney General Pray then will you acquaint my Lords what Wounds you found upon the Body Salmon There was one upon the left part of the Breast near the Collar-bone which upon probing I found to be half an Inch in Breadth and four or five Inches deep downward the other was a Wound that was in his left side just under the short Ribbs and that was upward and upon probing of it I found it was about the breadth of an Inch at the Orifice and about the depth of five or six Inches and pierced through the Diaphragma Mr. Attorney General Pray did you observe any difference in the Wounds or in the Orifice of ' em Salmon That below was a large Wound larger than the other Mr. Attorney General Were the Wounds do you think given with two Swords or with one and the same Sword Salmon Indeed I can't tell Mr. Attorney General Did you look upon either and which of them to be Mortal Salmon I look'd upon both to be Mortal Lord High Steward If you have done with him Mr. Attorney will my Lord Mohun ask him any Questions Lord Mohun No I shall ask him no Questions for I think I need not I was never prov'd to be in the Company in the place where the Fighting was Mr. Attorney General We have done with calling of Witnesses 'till we hear what my Lord Mohun says to it Lord High Steward My Lord Mohun This is the time the Kings Evidence being finished for you to call your Witnesses and make your Defence Lord Mohun My Lords I shall not call many Witnesses for I think there is nothing that fixes any thing of Guilt as to Captain Coots Death as to me but I shall call one Witness that was here as I understand yesterday but not Examined and that is a Person that saw me afterwards and knows that I had a Wound in my Finger laid open and that Wound was received at Lockets by endeavouring to part 'em when they were quarelling there at that time The Witness stood up Lord High Steward Tho' you are not upon your Oath yet you are as much obliged in Justice and Conscience to speak the exact truth as if you were upon your Oath therefore have a care what Testimony you give Witness Yes my Lord. Lord High Steward What is the Question you would have this Witness ask'd Lord Mohun What he knows of my being Wounded about this time and what I declared concerning that Wound how I received it Lord High Steward I will not refuse to ask the Question but I must acquaint your Lordship that it signifies nothing in point of Evidence at Law what you your self did declare after the Fact was over It is Material what you did to prevent this Mischief before it hapned but not what you said or declared after the thing was done You hear my Lords Question what say you to it Witness I was at my Lord Mohun's several Days after this business hapned at the Lodging where
prepared himself he was ordered to go on but for the better hearing of him several of the Lords towards the upper end of the House removed from their Seats down as they did the Day before to sit upon the Wool-packs Mr. Sollicitor General My Lords I am of Council for the King against this Noble Lord my Lord Mohun the Prisoner at the Bar who has been upon his Tryal this Day and it comes to my turn to Sum up the Evidence that has been given against him which is but a Repetition of what your Lordships no doubt of it have taken exact notice of but I must shortly Sum up the chief of the Particulars thereof and make a few Remarks what of that Evidence sticks particularly upon my Lord Mohun The first Witness was the Drawer of the House at the Greyhound in the Strand who gives you an Account who were at his â—â—sters House the Nine and twentieth of October last and particularly that my Lord Mohun was there in the same Company wherein this Gentleman was that was unfortunately kill'd and that he continued in that Company till very late that Night or rather very early the next Morning when after the Reckoning was paid they came all down to the Bar and call'd for Coaches and he tells you that he was sent out and he tells you what he was sent for he was sent for Coaches and so cannot give any Account what past while he was gone but when upon calling for Coaches none could be had there was order for Chairs to be call'd and Chairs were brought to the Door and when he came in again he heard the Clashing of Swords and there were three of 'em on the one side of the Bar and three of 'em on the other indeed he does say he did 〈◊〉 sâ—e when the Swords were drawn but at that time they were putting up their Swords my Lord Mohun was in the Company upon which I would observe to your Lordships that there had been some Fighting for the Witness says upon my Lords Question that my Lord call'd for a Napkin to put his Hand in for his Fingar was cut and he said this is all that I have got by endeavouring to part them so that it shows there was a Quarrel and my Lord Mohun was in it When the Chairs were brought to the Door they went into them there went Mr. Coote into one into the second my Lord of Warwick and into the third my Lord Mohun so that still my Lord Mohun was in the Company and they went away together and tho' it is pretended by my Lord That he did all he could to prevent the Quarrel yet he gave Directions to the Chair-men that carryed him to follow the other Chairs and your Lordships perceive what the business was that they went about and the other three Chairs followed after presently so that they all went away together nay my Lord himself does not disown his being in the Company till they came into Leicester-fields Next I would observe what fell from Brown who carryed the very Gentleman that was kill'd Mr. Coote that my Lord Mohun was in one of the three first Chairs and that they all went together till that my Lord Mohun call'd out to stop upon the turning up into St. Martins-lane and tho' they stopt in St. Martins-lane and my Lord Mohun did intreat them to let it alone at that time yet it was only to let it alone till the Morning and when the other three Chairs past by on the other side of the way and Coote would have them go on my Lord Mohun said If they would go on he would go with them and see it Applegate the Chairman that carryed my Lord Mohun says the same and so it is plain my Lord Mohun did go on with an intention to make one in the Affray for Applegate says That when my Lord Mohun could not prevail upon his perswasions and when Coote went away after the other three Chairs were past by my Lord Mohun said If you do go I must go and see it and they did go all together And the Chair-man says he set my Lord Mohun down at the end of Green-street at the lower end of the Fields where the other two Chairs set down Captain Coote and my Lord of Warwick and that they all three walk'd up together towards the Standard-Tavern still all this proves my Lord did go there and that he himself did say he would go and see it and it is plain that my Lord Mohun did go as far as Leicester-fields and it is only his Declaration concerning himself without any proof that he went away and did not go into the Fields to the place where the Fact was done and we think it is sufficient proof that he was one of them that weâ—â— concern'd because we do prove that he was all along in the Company till the very time that they came into the place where the thing was done Then there is the Chair-man that carryed Mr. James and he tells your Lordships That the three first Chairs that went up St. Martins-lane went to the Standard-tavern and there they knockt at the Door and paid the Chair-men and went out of their Chair and so says the other Chair-men that carryed Captain Doâ—â—ra and Captain French and they say also That when they came down the paved Stones again they heard Chairs call'd for but they did not interpose at all in the matter but the other two Chairs it seems did for they went up to the upper end of the Square where there were two Persons holding up Mr. Coote and after they had put the Chair over the Rails in order to have him carried away in a Chair but they could not get him into the Chair I would likewise observe from the Evidence of the Surgeon who gives you an Account of what nature the Wounds were one was in the Breast near the Coller-bone on the left side the other was under the Short-ribs on the left side too which could not be given him by the Person that he was fighting with he being a right-hand Man as was prov'd by his Servant My Lord Mohun has call'd but one Witness which is only about a little Circumstance of his being wounded in the Hand and having the Wound laid open but that was two Days after this Fact was done my Lord Mohun could not but know that the matters he was to answer related to a time before It must be agreed to me that they all three my Lord of Warwick my Lord Mohun and Mr. Coote went all away together that they were carried to Leicester-fields that they were set down together and walk'd up together upon the Stone pavement when the others were gone towards the upper end of the Fields so that in all probability they all went together into the place where the Fight was and were all concern'd and if so my Lord Mohun must be equally guilty with the rest my Lord Mohun knowing what Business it
was they were going about It must be left to your Lordships Judgment whether he shall not be presumed to be there when the Fact was done especially his saying when he could not prevail in St. Martins-lane to put the matter off till another time that if they did go on he would go and see it so that putting these two Circumstances together his going in one of the Chairs with my Lord Warwick and Coote and what he said after when the Chairs stopt in St. Martins-lane we think are Circumstances to induce your Lordships to believe that he was present at the time of the Fact committed or very near the place and if that be so how far he is Guilty must be submitted to your Lordships consideration and this is all that I shall trouble your Lordships with without repeating the particular Evidence which your Lordships I am sure very well remember Lord Mohun My Lords I desire I may say one Word in answer to what Mr. Sollicitor has observ'd I think your Lordships have had no Evidence given you where Mr. Coote was kill'd but only the Chair-man that was desir'd to bring over his Chair within the Rails says it was towards Penton-street which is quite contrary to the place where I was set down at Green-street end I must then be at a very great distance from the place where the Fact was done Lord High Steward If all have done on both besides then your Lordships have nothing left but to consider of the Evidence which has been given which I suppose you will do among your selves Lords Ay Adjourn Adjourn Lord High Steward Is it your Pleasure my Lords to Adjourn into the House of Lords Lords Ay Ay. L. H. St. This House is Adjourn'd into the House of Lords And the Lords went back in the same Order to the House of Lords and there they stay'd for about two Hours time debateing the matter among themselves and afterwards returned again into the Court in Westminster-Hall and were seated all in their places as they were before and the Lord High Steward was seated in the Chair before the Throne Clerk of the Crown Serjeant at Arms make Proclamation Serjeant at Arms. O Yes O Yes O Yes My Lord High Steward of England his Grace doth straightly Charge and Command all manner of Persons here present to be uncovered and keep Silence upon Pain of Imprisonment L. H. St. Is it your Lordships pleasure to go on now to give your Judgment Lords Ay Ay. L. H. St. Then I must pray your Lordships to give me time to write down your Opinions distinctly that I may be able to acquaint you with certainty of the Numbers Lords Ay Ay. Then the Lord High Steward stood up and put the Question to every Loâ—â— beginning with the Youngest Baron to know what his Judgment was and the Lord to whom he call'd stood up in his place Uncovered and laying his right Hand upon his Breast deliver'd his Judgment in the manner following L. H. St. My Lord Bernard Is Charles Lord Mohun Guilty of the Felony and Murder whereof he stands Indicted or Not Guilty L. Bernard Not Guilty upon my Honour The same Question was asked severally of all the Lords who in the same Form delivered their Opinions as followeth L. Herbert Not Guilty upon my Honour L. Weston Not Guilty upon my Honour L. Ashburnham Not Guilty upon my Honour L. Chalmondly Not Guilty upon my Honour L. Jefferys Not Guilty upon my Honour L. Godolphin Not Guilty upon my Honour L. Guilford Not Guilty upon my Honour L. Oselstone Not Guilty upon my Honour L. Osborne Not Guilty upon my Honour L. Craven Not Guilty upon my Honour L. Cornwallis Not Guilty upon my Honour L. Granville Not Guilty upon my Honour L. Berkley Not Guilty upon my Honour L. Lexington Mot Guilty upon my Honour L. Rockingham Not Guilty upon my Honour L. Lucas Not Guilty upon my Honour L. Culpeper Not Guilty upon my Honour L. Byron Not Guilty upon my Honour L. Jermin Not Guilty upon my Honour L. Leigh Not Guilty upon my Honour L. Raby Not Guilty upon my Honour L. Howard Not Guilty upon my Honour L. Lovelace Not Guilty upon my Honour L. Hunsdon Not Guilty upon my Honour L. Wharton Not Guilty upon my Honour L. Eure. Not Guilty upon my Honour L. Dudly Not Guilty upon my Honour L. Fitzwalter Not Guilty upon my Honour L. Willoughby Not Guilty upon my Honour L. Audley Not Guilty upon my Honour L. Abergaveny Not Guilty upon my Honour L. H. Steward My Lord Viscount Lonsdale Is Charles Lord Mohun Guilty c. L. Viscount Lonsdale Not Guilty upon my Honour L. Viscount Townsend Not Guilty upon my Honour L. H. Steward The Earl of Grantham Is Charles Lord Mohun Guilty c. E. of Grantham Not Guilty upon my Honour E. of Albemarle Not Guilty upon my Honour E. of Tankerville Not Guilty upon my Honour E. of Warrington Not Guilty upon my Honour E. of Scarborough Not Guilty upon my Honour E. of Mountague Not Guilty upon my Honour E. of Portland Not Guilty upon my Honour E. of Rochester Not Guilty upon my Honour E. of Nottingham Not Guilty upon my Honour E. of Yarmouth Not Guilty upon my Honour E. of Radnor Not Guilty upon my Honour E. of Macclesfield Not Guilty upon my Honour E. of Feversham Not Guilty upon my Honour E. of Burlington Not Guilty upon my Honour E. of Carlile Not Guilty upon my Honour E. of Bath Not Guilty upon my Honour E. of Anglesey Not Guilty upon my Honour E. of Essex Not Guilty upon my Honour E. of Scarsdale Not Guilty upon my Honour E. of Thanet Not Guilty upon my Honour E. of Chesterfield Not Guilty upon my Honour E. of Carnarvan Not Guilty upon my Honour E. of Kingston Not Guilty upon my Honour E. of Winchelsea Not Guilty upon my Honour E. of Stamford Not Guilty upon my Honour E. of Peterborough Not Guilty upon my Honour E. of Rivers Not Guilty upon my Honour E. of Manchester Not Guilty upon my Honour E. of Denbigh Not Guilty upon my Honour E. of Leicester Not Guilty upon my Honour E. of Bridgwater Not Guilty upon my Honour E. of Dorset Not Guilty upon my Honour E. of Suffolk Not Guilty upon my Honour E. of Huntington Not Guilty upon my Honour E. of Darby Not Guilty upon my Honour E. of Kent Not Guilty upon my Honour L. H. Steward My Lord Great Chamberlain Is Charles Lord Mohun Guilty c. Lord Chamberlain Not Guilty upon my Honour L. H. Steward My Lord Marquis of Normanby Is Charles L. Mohun Guilty c. L. Marquis of Normanby Not Guilty upon my Honour L. Marquis of Hallifax Not Guilty upon my Honour L. H. Steward My Lord Duke of Newcastle Is Charles Lord Mohun Guilty c. D. of Newcastle Not Guilty upon my Honour D. of Scomberg Not Guilty upon my Honour D. of St. Albans Not Guilty upon my Honour D. of Northumberland Not Guilty upon my Honour
D. of Ormond Not Guilty upon my Honour D. of Southampton Not Guilty upon my Honour D. of Richmond Not Guilty upon my Honour D. of Sommerset Not Guilty upon my Honour L. H. Steward My Lord Steward Is Charles Lord Mohun Guilty c. Lord Steward Not Guilty upon my Honour L. H. Steward My Lord President Is Charles Lord Mohun Guilty c. Lord President Not Guilty upon my Honour Then the Lord High Steward of England standing up uncovered putting his right Hand upon his Breast said my Lord Mohun is not Guilty upon my Honour Then the Lord High Steward seated himself again in the Chair to take the Number of the Peers who had given their Judgment L. H. St. My Lords Eighty Seven of your Lordships are present and you are all unanimously of Opinion That my Lord Mohun is Not Guilty of the Felony and Murther whereof he stands Indicted Lords Ay Ay. L. H. St. Let the Prisoner be call'd to the Baâ— Clerk of the Crown Serjeant at Arms make 〈…〉 Serjeant at Arms. O yes O yes O yes My 〈…〉 his Grace does straightly charge and command all manner 〈…〉 to keep Silence upon pain of Imprisonment Clerk of the Crown Serjeant at Arms make Proclamation Serjeant at Arms. O yes O yes O yes Chief Governour of the Tower â—â—â—don bring forth the Body of your Prisoner Charles Lord Moâ—â—â— Whom you committed to you in order to be brought hither this Day 〈◊〉 Pain and will fall thereon Then he was brought forth to the Bar and the Lord High Steward 〈◊〉 drest himself to him in this manner L. H. St. My Lord Mohun you have been Indicted fee the 〈◊〉 of Richard Coote upon which Indictment your Lordship has been 〈…〉 upon your Arraignment has pleaded Not Guilty and for your 〈…〉 put your self upon your Peers my Lords here present and they 〈…〉 Evidence and have consider'd of it and deliver'd their Judgâ—â—◠〈…〉 matter and I am to acquaint your Lordship they are all 〈…〉 â—â—â—nion That your Lordship is not Guilty of the Felony and 〈…〉 stand Indicted and therefore your Lordship is discharged 〈…〉 paying your Fees Then the Lord Mohun made his Reverence to the Lords 〈…〉 himself thus Lord Mohun My Lords I do not know which way to 〈…〉 Thankfulness and Acknowledgment of your Lordships great 〈…〉 to me but I crave leave to assure your Lordships That I will 〈…〉 it the Business of the future part of my Life so to behave my self in 〈…〉 â—â—â—â—sation in the World as to avoid all things that may bring me 〈…〉 Circumstances as may expose me to the giving your Lordships 〈…〉 this nature for the future And then making his Reverences to 〈…〉 away from the Bar. Clerk of the Crown Serjeant at Arms make Proclamation Serjeant at Arms. O yes O yes O yes All manner of Persâ—◠〈…〉 are commanded to keep Silence by my Lord High Steward of 〈…〉 Grace upon pain of Imprisonment L. H. St. My Lords The Tryal â—â—ing at an end 〈…〉 to be done here but the determining the Commission Lords Ay Ay. L. H. St. Sir Samuel Astry let Proclamation be made in order 〈…〉 the Commission of High Stewardship Clerk of the Crown Serjeant at Arms make Proclamation Serjeant at Arms. O yes O yes O yes My Lord High Steward 〈…〉 Grace does straightly charge and Command all manner of Person 〈…〉 and that have here attended to depart hence in the peace 〈…〉 and of â—â—veraign Lord the King for his Grace my Lord High Stewards of England 〈…〉 tends now to dissolve his Commission And then the White Staff being delivered to his Grace the Lord High 〈◊〉 〈…〉 he stood up and holding it in both his Hands 〈…〉 it in 〈◊〉 then leaving the Chair came down to the Wool pâ—ck and said 〈…〉 Lordships pleasure to adjourn to the House of 〈◊〉 Lords Ay Ay. L. H. St. This House is adjourned into the House 〈…〉 And so they went back in the same order that 〈…〉 and all the Assembly 〈…〉 FINIS