Chapter IV: Part 4

LORD HIGH STEWARD--My lord Warwick, will your lordship ask this
witness any questions?

EARL OF WARWICK--No, my lord.

LORD HIGH STEWARD--Mr. Attorney, if you have any other witness,
pray call them.

Another Witness was produced, that belonged to the Ship and Castle in Cornhill.

ATTORNEY-GENERAL--This man will give you an account what passed
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 feared
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.

ATTORNEY-GENERAL--Did you observe any desire to be private?

WITNESS--No, indeed, I cannot tell that.

ATTORNEY-GENERAL--How long did they continue there?

WITNESS--About six a-clock my lord of Warwick, and capt. James,
and capt. Dockwra, and capt. Duckinfield went away.

ATTORNEY-GENERAL--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 further discourse.

ATTORNEY-GENERAL--What became of the rest of the company?

WITNESS--They went away; I do not know what became of them, nor
whither they went; some of them went in and out of one room
into another several times, two or three times, and came out
again.

ATTORNEY-GENERAL--My lord, we have done with the witness.

LORD HIGH STEWARD--My lord Warwick, will you ask him any
questions?

EARL OF WARWICK--No, my lord.

_Mr. Salmon_, the surgeon who, by the coroner's orders, examined Coote's wounds, was called. There were two wounds: one on the left breast, near the collar-bone, running down four or five inches. He could not guess what sort of a sword made it; the wound was about half an inch broad. There was another wound under the last rib on the left side, an inch broad, six inches deep. They were both mortal. In answer to Lord Warwick, he said that neither could be given by a sword run up to the hilt. He could not say that they must have been given by the same weapon: but they might have been.

_Stephen Turner_, Coote's servant, identified his master's sword; he believed he fenced with his right hand, but had never seen him fence at all.

EARL OF WARWICK--I desire he may be asked, whether he has not
observed a particular kindness and friendship between his
master and me?

TURNER--Yes, my lord; I have several times waited upon my
master, when my lord and he was together, and they were always
very civil and kind one to another; and I never heard one word
of any unkindness between them.

EARL OF WARWICK--Whether he knows of any quarrel that was
between us?

TURNER--No, I never did.

EARL OF WARWICK--Whether he did not use to lie at my lodgings
sometimes?

LORD HIGH STEWARD--You hear my lord's question: what say you?
Did your master use to lie at my lord of Warwick's lodgings at
any time?

TURNER--Yes; very often.

ATTORNEY-GENERAL--Pray call Pomfret again, and let him see the
sword.

[Then he came in, and two swords were shewn him.]

ATTORNEY-GENERAL--I desire he may acquaint your lordships what
he knows of those two swords.

POMFRET--These two swords were brought in by some of the
company that came to my master's house; and when they were
shewn to captain French in the morning he owned this to be his,
and the other to be Mr. Coote's; and he desired that notice
might be taken, that his sword was dirty but not bloody; and
there was some blood upon the other.

ATTORNEY-GENERAL--Who brought in Mr. Coote's sword?

POMFRET--Indeed I cannot tell.

_White_, the coroner, was called, and said that he had asked Salmon whether the two wounds on Coote's body were given by the same weapon, and he said he could not say.

ATTORNEY-GENERAL--We have done with our evidence, until we hear
what my lord of Warwick says to it.

LORD HIGH STEWARD--My lord of Warwick, will you ask this
witness any questions?

EARL OF WARWICK--No, my lord.

LORD HIGH STEWARD--Make proclamation for silence.

CLERK OF THE CROWN--Serjeant at arms, make proclamation.

SERJEANT-AT-ARMS--O yes, O yes, O yes! His grace, my lord high
steward of England, does strictly charge and command all manner
of persons here present to keep silence, upon pain of
imprisonment.

LORD HIGH STEWARD--My lord of Warwick, the king's counsel have
made an end of giving evidence for the king; now is the proper
time for you to enter upon your defence.

EARL OF WARWICK--May it please your grace, and you my noble
lords, my peers.

I stand here before your lordships, accused of the murder of
Mr. Coote, of which I am so innocent, that I came and
voluntarily surrendered myself so soon as I heard your
lordships might be at leisure to try me; and had sooner done
it, but that the king was not then here, nor your lordships
sitting, and had no mind to undergo a long confinement; and now
I think I might well submit it to your lordships' judgment,
even on the evidence that has been offered against me, whether
there hath been any thing proved of malice prepense, or my
being any actor therein, so as to adjudge me guilty. And I
think I may with humble submission to your lordships say, that
my innocence appeareth even from several of the witnesses who
have been examined against me, which I will not trouble your
lordships to repeat, but submit to your memory and observation.

But, my lords, the safety of my life does not so much concern
me in this case, as the vindication of my honour and reputation
from the false reflections to which the prosecutor has
endeavoured to expose me; and I shall therefore beg your
lordships' patience to give a fair and full account of this
matter: in which the duty I owe to your lordships, and to
justice in general, and the right I owe to my own cause in
particular, do so oblige me, that I will not in the least
prevaricate, neither will I conceal or deny any thing that is
true.

My lords, I must confess I was there when this unfortunate
accident happened, which must be a great misfortune in any
case, but was more so to me in this, because Mr. Coote was my
particular friend; and I did all I could to hinder it, as your
lordship may observe by the whole proceedings.

It was on the Saturday night when my lord Mohun and I, and
several other gentlemen, met at Locket's, where the same
company used often to meet; and in some time after several of
us had been there, Mr. Coote came unexpectedly, and for some
time he and we were very friendly, and in good humour, as we
used to be with each other; but then there happened some
reflecting expressions from Mr. Coote to Mr. French, who
thereupon called for the reckoning; and it being paid, we left
the upper room, and I proposed to send three bottles of wine
to my own lodging, and to carry him thither to prevent the
quarrel. But while the company stopped to call for a glass of
ale at the bar below, Mr. Coote (whose unfortunate humour was
sometimes to be quarrelsome) did again provoke Mr. French to
such degree, that they there drew their swords; but we then
prevented them of doing any mischief: then Mr. Coote still
insisting to quarrel further with Mr. French, my lord Mohun and
I proposed to send for the guards to prevent them: but they had
got chairs to go towards Leicester-fields; and my lord Mohun
and I, as friends to Mr. Coote, and intending to prevent any
hurt to him, did follow him in two other chairs; and as he was
going up St. Martin's-lane, stopped him, and I extremely there
pressed him to return and be friends with Mr. French, or at
least defer it, for that the night was very dark and wet; and
while we were so persuading of him, Mr. French in one chair,
and Mr. James and Mr. Dockwra in two other chairs past by us
(which we guessed to be them), on which Mr. Coote made his
chairmen take him up again, and because the chairmen would not
follow Mr. French faster, threatened to prick him behind; and
when we were gone to Green-street and got out of our chairs,
Mr. Coote offered half a guinea to be changed to pay for all
our three chairs, but they not having change, he desired lord
Mohun to pay the three shillings, which he did. And in a few
minutes after, Mr. Coote and Mr. French engaged in the fields,
whither I went for the assistance and in defence of Mr. Coote,
and received a very ill wound in my right hand; and there this
fatal accident befel Mr. Coote from Mr. French whom Mr. Coote
had dangerously wounded, and I must account it a great
unhappiness to us all who were there: but so far was I from
encouraging of it, that I will prove to your lordships that I
did my utmost endeavours to prevent it; so far from any design
upon him, that I exposed my own life to save his; so far from
prepense malice, that I will, by many witnesses of good quality
and credit, prove to your lordships a constant good and
uninterrupted friendship from the first of our acquaintance to
the time of his death; which will appear by many instances of
my frequent company and correspondence with him, often lending
him money, and paying his reckonings; and about two months
before his death lent him an hundred guineas towards buying him
an ensign's place in the guards, and often, and even two nights
before this, he lodged with me, and that very night I paid his
reckoning. And when I have proved these things, and answered
what has been said about the sword and what other objections
they have made, I doubt not but that I shall be acquitted to
the entire satisfaction of your lordships, and all the world
that hear it.

Before I go upon my evidence, I will crave leave further to
observe to your lordships, that at the Old Bailey, when I was
absent, Mr. French, James, and Dockwra, have been all tried on
the same indictment now before your lordships; and it was then
opened and attempted, as now it is, to prove it upon me also;
and by most of them the same witnesses who have now appeared;
and they were thereupon convicted only of manslaughter, which
could not have been, if I had been guilty of murder. And on
that trial it plainly appeared that Mr. French was the person
with whom he quarrelled, and who killed him. And now I will
call my witnesses.

LORD HIGH STEWARD--Will your lordship please to go on to call
your witnesses, for the proof of what you have said; that is
the method, and then you are to make such observations as you
please.

EARL OF WARWICK--My first witness is capt. Keeting, who was
with me at Locket's, but went away before capt. Coote or any of
them came; and he will tell you I was with him a while.

[Then captain Keeting stood up.]

LORD HIGH STEWARD--Capt. Keeting, you are not upon your oath,
because the law will not allow it. In cases of this nature the
witnesses for the prisoner are not to be upon oath; but you are
to consider that you speak in God's presence, who does require
the truth should be testified in all causes before courts of
judicature; and their lordships do expect, that in what
evidence you give here, you should speak with the same regard
to truth as if you were upon oath; you hear to what it is my
lord of Warwick desires to have you examined, what say you to
it?

CAPTAIN KEETING--My lord, I will tell your lordship all the
matter I know of it. I met with my lord of Warwick that evening
at Tom's Coffee-house, and we continued there till about eight
at night; I went away to see for a gentleman that owed me
money, and afterwards I went to Locket's; and while I was
there, the drawer came up and told me, my lord of Warwick
desired to speak with me; and when he came up into the room, he
said he was to meet with my lord Mohun there, and capt. Coote,
and he asked me if I knew where capt. French and capt. James
were; I told him I dined with capt. Coote at Shuttleworth's;
and in a while after, capt. Coote came in, and about an hour
and an half, I think, I continued there, and capt. French came
in; capt. Dockwra and we drank together for an hour and an
half, and they admired, about ten o'clock that my lord Mohun
was not come; and I payed my reckoning, not being very well,
and away I went home; Mr. James came in just before I went
away; but there was no quarrelling, nor any thing like it
before I went away.

EARL OF WARWICK--My lord, I desire he may be asked, Whether we
did not usually meet there as friends, especially capt. Coote
and I?

CAPTAIN KEETING--Captain Coote and my lord of Warwick used to
be almost every day together at that place.

EARL OF WARWICK--Pray, did he ever know or observe any
difference or quarrel between capt. Coote and me?

CAPTAIN KEETING--No, my lord, I never saw any thing but the
greatest friendship between my lord of Warwick and captain
Coote that could be; I was with them, and saw them together
almost every day.

LORD HIGH STEWARD--Have you any thing further to examine this
witness to?

EARL OF WARWICK--No, my lord, I have no further question to ask
him.

LORD HIGH STEWARD--Who is your next witness, my lord?

EARL OF WARWICK--My lord, I suppose I shall not need to trouble
you to examine the chairmen over again; your lordships have
heard what they can say: I desire colonel Stanhope may be
called.

[Who it seems stood by the Chair of State, and it was some
while before he could get round to come to the place the
witnesses were to stand.]

LORD HIGH STEWARD--While this witness gets round, if your
lordship has any other witness ready to stand up, pray let him
be called.

EARL OF WARWICK--To prove the kindness between capt. Coote and
me, I desire col. Blisset may be called. [Who stood up.]

LORD HIGH STEWARD--What is it your lordship asks this witness
or calls him to?

EARL OF WARWICK--To testify what he knows of any kindness or
unkindness between capt. Coote and me; whether he has not been
often in our company?

LORD HIGH STEWARD--Have you been often in company with my lord
of Warwick and capt. Coote?

COLONEL BLISSET--Yes, my lord, I was very well acquainted with
both of them for a twelve-month past before this accident and I
have often been in their company, and always observed that
there was a great deal of friendship and kindness between them.

EARL OF WARWICK--My lord, I desire he may tell any particular
instance that he knows or can remember.

COLONEL BLISSET--I remember when capt. Coote had his commission
in the regiment of guards, he was complaining of the
streightness of his circumstances; he was to pay for his
commission 400 guineas, and said he had but 300 for to pay for
it: and my lord of Warwick did then say to him, do not trouble
yourself about that, or let not that disturb you, for I will
take care you shall have 100 guineas, and he said he would give
order to his steward to pay him so much; and I was told
afterwards that he did so.

EARL OF WARWICK--I desire he may tell, if he knows of any other
particular instances of my friendship to Mr. Coote?

COLONEL BLISSET--Once when he was arrested by his taylor for
L13, my lord lent him five guineas, and used very frequently to
pay his reckoning for him.

EARL OF WARWICK--I desire he may tell, if he knows any thing
else; and whether he has not lain at my lodgings, and
particularly but some small time before this accident happened.

COLONEL BLISSET--About ten days before this unhappy accident
happened, I was at my lord of Warwick's lodgings, and when I
came there I found capt. Coote a-dressing himself; and I asked
him how that came to pass, and they told me they had been up
late together, and that he had sent home for his man to dress
himself there, upon which I did observe that they had been
a-rambling together over night; and there was a very great
familiarity between them.

EARL OF WARWICK--Did you observe any quarrel between us?

COLONEL BLISSET--No, none at all; I never knew of any quarrel
between my lord of Warwick and capt. Coote, but I observed
there was a particular kindness between them; and a great deal
of friendship I know my lord of Warwick shewed to him, in
paying of reckonings for him, and lending him money when he
wanted.

EARL OF WARWICK--My lord, I desire he may be asked, whether he
does not know that capt. Coote was straitened for money?

COLONEL BLISSET--I did hear capt. Coote say, that he had not
received any thing from his father for 13 months, and his
father was angry with him, and would not send him any supply,
because he would not consent to cut off the entail, and settle
two or three hundred pounds upon a whore he had.

ATTORNEY-GENERAL--Pray, Sir, will you consider with yourself,
and though you are not upon your oath, answer the questions
truly, for you are obliged to speak the truth, though you are
not sworn, whenever you come to give your testimony in a court
of judicature; pray, acquaint my noble lords here, whether you
did never hear my lord Warwick complain of capt. Coote?

COLONEL BLISSET--No, I never did hear him complain of him.

ATTORNEY-GENERAL--Did you never hear the least word of any
quarrel between them?

COLONEL BLISSET--No, indeed, I did never hear of any quarrel
between them.

ATTORNEY-GENERAL--Did you never hear of any unkindness at all?

COLONEL BLISSET--No, indeed, my lord, not I: I never so much as
heard of the least unkindness whatsoever.

LORD HIGH STEWARD--Well then, my lord, who do you call next?

EARL OF WARWICK--Now colonel Stanhope is here, I desire he may
be asked the same question, whether he does not know the
particular friendship that was between capt. Coote and me, and
what instances he can give of it?

LORD HIGH STEWARD--You are to consider, Sir, though you are not
upon your oath you are in a great court, and under no less
restriction to testify the truth, and nothing but the truth:
You hear what my noble lord asks you.

COLONEL STANHOPE--My lord, I have known my lord of Warwick and
capt Coote for about a twelve-month, and I did perceive that
they did always profess a great kindness for one another.

EARL OF WARWICK--I desire to know of him, whether he observed
any particular friendship between capt. Coote and me, much
about the time of this business?

COLONEL STANHOPE--About eight or ten days before this unhappy
accident, I went to wait upon my lord of Warwick twice at his
lodgings: Once I found capt. Coote there, one of them was in
bed, and the other was dressing of himself; I thought they were
very good friends that were so familiar, and I had good reason
to think so, because of that familiarity: Both the times that I
was there, when I found them together, was within eight days
before the accident happened.

EARL OF WARWICK--The next witness I shall call will be Mr.
Disney.

ATTORNEY-GENERAL--But before colonel Stanhope goes, I desire to
ask him this question, whether he did never hear or know of any
unkindness between my lord of Warwick and capt. Coote?

COLONEL STANHOPE--No, indeed I did not; I always thought them
to be very good friends.

LORD HIGH STEWARD--Will your lordship go on to your next
witness?

EARL OF WARWICK--Yes, my lord, there he is, Mr. Disney; I
desire he may be asked what he knows of any expressions of
kindness and friendship between me and capt. Coote.

_Disney_ spoke to Lord Warwick lending Coote 100 guineas towards the price of his commission; he had observed great kindness between the two, and had several times seen Lord Warwick pay Coote's reckoning.

_Colonel Whiteman_ was then called. He had constantly seen Lord Warwick and Coote together;

they dined together almost every day for half a year's time
almost; and as to this time, when this business had happened, I
went to my lord of Warwick, being sent for by him, and found
him at a private lodging, where he expressed a great deal of
concern for the death of his dear friend Mr. Coote; and he
shewed me the wound he had received in his hand, and he desired
he might be private, and he told me he believed people would
make worse of it than it was, because he did not appear; but he
did but intend to keep himself out of the way till he could be
tried; and I took what care I could to get him a convenience to
go to France.

ATTORNEY-GENERAL--Pray, what reason did he give for his going
away?

COLONEL WHITEMAN--The king being at that time out of England,
and so the parliament not sitting, he said he did not love
confinement, and had rather be in France till the parliament
should meet, and he might have a fair trial, which he thought
he should best have in this House.

He had never seen any unkindness or quarrel between them.

_Edmund Raymund_, Lord Warwick's steward, knew of the loan of 100 guineas by him to Coote, and provided the money paid on that occasion.

Lord Warwick then stated that he wished to call French as a witness, and desired that counsel might be heard on his behalf as to whether he could be guilty of the death of a man on whose side he was fighting equally with those who were fighting on the other side, and who had already been convicted of manslaughter.

After a brief discussion, it was decided that counsel should be heard on the question whether French was a competent witness. The facts were that he had been indicted for murder, and convicted of manslaughter; he claimed the benefit of clergy,[35] which was allowed him; the burning on his hand was respited, and a pardon remitting the burning altogether had been delivered to the Lord High Steward under the Privy Seal, but had not passed the Great Seal.

Lord Warwick had accordingly to maintain that French was a good witness without having been burnt on his hand, or having been pardoned.

The _Attorney-General_ first proceeded to argue that an allowance of clergy did not make a felon convict a competent witness.[36] It did not discharge him from his offence, set him _rectus in curia_, and 'make him in all respects a person fit to have the benefit and privileges of a "probus et legalis homo"' till he had passed through those methods of setting himself right in the eye of the law, that the law had prescribed. The burning in the hand under the statute of Henry VII. was not a punishment; it only showed that the branded person was not to have his clergy again. Purgation was abolished by the statute of Elizabeth, but satisfaction was not made to the law, the convict was not fully discharged from its operation, and his credit was not restored, till he was branded or pardoned. Till then 'the conviction remains upon him,' and he was not capable of being a witness.

_The Solicitor-General_, Sir John Hawles,[37] followed to the same effect, and, by the order of the Court _Powys_[38] was then heard on behalf of the prisoner. He agreed with the Attorney-General that the branding under the statute of Henry VII. was only for the purpose of showing that the branded man has had his clergy once, and was not a punishment; the punishment still remained to be inflicted by the process of purgation. But purgation was abolished after the Reformation by the statute of Elizabeth 'because it was only an outward appearance and shew of purgation, and was often the occasion of very great perjuries.' The Court had power to imprison the convicted man for a year; but that was not any more a punishment and a means of restoring a man to credit than was the branding.[39]

'What we insist on is this, that the allowance of clergy 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'; the prisoner was to have the same benefit of his clergy as purgation would have given him before the statute, and on being allowed his clergy is to be in the same condition as if he had undergone purgation or been pardoned. The respiting of the burning of the hand till the king's pardon could be obtained was not to put him in a worse condition than he would have been in had he been actually burnt. Cases were quoted, one of which was afterwards fairly distinguished, and it was urged that the burning was only a condition precedent to the accused getting out of prison, not to his being restored to his credit.

_Serjeant Wright_ replied for the Crown. He admitted that a pardon would restore a convict to credit as a witness, and that an allowance of clergy, followed by a burning of the hand, would have the same effect: now that purgation was abolished, the burning had taken its place; 'that is the very terms of the statute on 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.' One of the cases quoted by Powys was distinguished, and Hale was quoted to support the argument for the Crown.

_Lord Chief-Justice Treby_[40] was then called on for his opinion, and gave it that French was not a competent witness. He had not yet actually been pardoned, for pardons were not operative till they had passed the Great Seal. By his conviction he had forfeited his liberty, his power of purchasing chattels or holding land, and his credit.

These losses formerly might be restored by purgation; but purgation was now replaced by burning in the hand. The imprisonment under the statute was not a necessary condition to a restoration of credit, because it was 'a collateral and a new thing'; the party was not imprisoned 'by virtue of his conviction, but by a fresh 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.' In any case the burning was a condition precedent to a restoration to credit. 'To me the law is evident. A peer shall have this benefit without either clergy or burning. A clerk in orders, upon clergy alone, without burning. A lay-clerk, not without both.'

_Lord Chief-Baron Ward_[41] and _Nevill, J._,[42] expressed themselves as of the same opinion; and it was decided that French should not be admitted as a witness.

It was then suggested that counsel should be heard on the point whether, supposing that Lord Warwick had been on Coote's side in the fight, he was guilty of his death; but it was decided that as there was still a question whether the facts were as alleged this could not be done.

Lord Warwick was then invited to sum up his evidence, 'which is your own work, as not being allowed counsel as to matter of fact,' and to make any observations he liked. He preferred, however, to say nothing.

_The Solicitor-General_ then proceeded to sum up for the Crown, and since he could not be heard by some lords at the upper end of the house, the _Duke of Leeds_ moved either that 'any person that has a stronger voice should sum up the evidence,' or that 'you will dispense with the orders of the house so far, as that Mr. Solicitor may come to the clerk's table, or some other place within the house, where he may be heard by all.' _The Earl of Rochester_ opposed the second alternative on the ground that 'in point of precedent many inconveniences' would occur were such a course adopted.

_The Earl of Bridgewater_ suggested that the difficulty might be met by sending the guard to clear the passages about the court, which was accordingly done, apparently with success.

_The Solicitor-General_ then continued his summing up the evidence; his only original comment on the case being that as there was no evidence as to whose hand it was by which Coote was wounded, '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.'

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 a 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:

LORD HIGH STEWARD--Will your lordships proceed to give your
judgment?

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.

LORD HIGH STEWARD--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:

LORD 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 the same opinion.

Then the Lord High Steward reckoned up the number of peers
present, and the opinions that were given, and announced that
there were 93 present, and that they had all acquitted lord
Warwick of murder, but had found him guilty of manslaughter.
Lord Warwick was then called in, the judgment was announced to
him, and he was asked what he had to say why judgment of death
should not be pronounced against him according to law. And he
claimed the benefit of his peerage, under the statute of Edward
the 6th.

LORD HIGH STEWARD--My lord, your lordship has demanded the
benefit of your peerage upon the statute of Edward the 6th, and
you must have it by law; but I am directed by their lordships
to acquaint you that you cannot have the benefit of that
statute twice; therefore, I am likewise directed by their
lordships to say that they hope you will take a more than
ordinary care of your behaviour for the future, that so you may
never hereafter fall into such unfortunate circumstances as you
have been now under; my lords hope this will be so sensible a
warning, that nothing of this kind will ever happen to you
again; your lordship is now to be discharged.

LORD HIGH STEWARD--Is it your lordships' pleasure to adjourn to
the House of Lords?

LORDS--Ay, Ay.

LORD HIGH STEWARD--This House is adjourned to the House of
Lords.

Then the lords went in procession, in the same order that they
came into the court.

The next day Lord Mohun was tried on a similar indictment before the same court. And most of the same witnesses having given the same evidence again, he was acquitted and discharged. He then expressed himself thus:

LORD MOHUN--My lords, I do not know which way to express my
great thankfulness and acknowledgment of your lordships' great
honour and justice to me; but I crave leave to assure your
lordships, that I will endeavour to make it the business of the
future part of my life, so to behave myself in my conversation
in the world, as to avoid all things that may bring me under
any such circumstances, as may expose me to the giving your
lordships any trouble of this nature for the future.

Then proclamation was made dissolving the Commission, and the Court adjourned.

* * * * *

As is well known, the duel described in this trial is the original of that described in _Esmond_ between Lord Castlewood and Lord Mohun; it may therefore be of interest to transcribe a few passages out of the latter work, premising only that there seems to be some faint relationship between Captain Macartney, Lord Mohun's second in his duel with Lord Castlewood, and the Lord Macartney who afterwards assisted him in the same capacity in his final meeting with the Duke of Hamilton. Lord Castlewood, as will be remembered, had come up to London to fight Lord Mohun, really on account of his relations with Lady Castlewood, nominally as the result of a quarrel at cards, which it was arranged should have all the appearance of taking place. Lord Castlewood, Jack Westbury, and Harry Esmond all meet together at the 'Trumpet,' in the Cockpit, Whitehall.

When we had drunk a couple of bottles of sack, a coach was
called, and the three gentlemen went to the Duke's Playhouse,
as agreed. The play was one of Mr. Wycherley's--_Love in a
Wood_. Harry Esmond has thought of that play ever since with a
kind of terror, and of Mrs. Bracegirdle, the actress who
performed the girl's part in the comedy. She was disguised as a
page, and came and stood before the gentlemen as they sat on
the stage, and looked over her shoulder with a pair of arch
black eyes, and laughed at my lord, and asked what ailed the
gentleman from the country, and had he had bad news from
Bullock fair?

Between the acts of the play the gentlemen crossed over and
conversed freely. There were two of Lord Mohun's party, Captain
Macartney, in a military habit, and a gentleman in a suit of
blue velvet and silver, in a fair periwig with a rich fall of
point of Venice lace--my Lord the Earl of Warwick and Holland.
My lord had a paper of oranges, which he ate, and offered to
the actresses, joking with them. And Mrs. Bracegirdle, when my
lord Mohun said something rude, turned on him, and asked him
what he did there, and whether he and his friends had come to
stab anybody else, as they did poor Will Mountford? My lord's
dark face grew darker at this taunt, and wore a mischievous,
fatal look. They that saw it remembered it, and said so
afterward.

When the play was ended the two parties joined company; and my
Lord Castlewood then proposed that they should go to a tavern
and sup. Lockit's, the 'Greyhound,' in Charing Cross was the
house selected. All three marched together that way, the three
lords going a-head.'

At the 'Greyhound' they play cards, and Esmond tries in vain to quarrel with Mohun himself.

My Lord Mohun presently snuffed a candle. It was when the
drawers brought in fresh bottles and glasses and were in the
room--on which my Lord Viscount said, 'The Deuce take you,
Mohun, how damned awkward you are. Light the candle, you
drawer.'

'Damned awkward is a damned awkward expression, my lord,' says
the other. 'Town gentlemen don't use such words--or ask pardon
if they do.'

'I'm a country gentleman,' says my Lord Viscount.

'I see it by your manner,' says my Lord Mohun. 'No man shall
say damned awkward to me.'

'I fling the words in your face, my lord,' says the other;
'shall I send the cards too?'

'Gentlemen, gentlemen! before the servants?' cry out Colonel
Westbury and my Lord Warwick in a breath. The drawers go out of
the room hastily. They tell the people below of the quarrel
upstairs.

'Enough has been said,' says Colonel Westbury. 'Will your
lordships meet to-morrow morning?'

'Will my Lord Castlewood withdraw his words?' asks the Earl of
Warwick.

'My lord Castlewood will be ---- first,' says Colonel Westbury.

'Then we have nothing for it. Take notice, gentlemen, there
have been outrageous words--reparation asked and refused.'

'And refused,' says my Lord Castlewood, putting on his hat.
'Where shall the meeting be? and when?'

'Since my lord refuses me satisfaction, which I deeply regret,
there is no time so good as now,' says my Lord Mohun. 'Let us
have chairs, and go to Leicester Field.'

'Are your lordship and I to have the honour of exchanging a
pass or two?' says Colonel Westbury, with a low bow to my Lord
of Warwick and Holland.

'It is an honour for me,' says my lord, with a profound congee,
'to be matched with a gentleman who has been at Mons and
Namur.'

'Will your Reverence permit me to give you a lesson?' says the
captain.

'Nay, nay, gentlemen, two on a side are plenty,' says Harry's
patron. 'Spare the boy, Captain Macartney,' and he shook
Harry's hand for the last time, save one, in his life.

At the bar of the tavern all the gentlemen stopped, and my Lord
Viscount said, laughing, to the bar-woman, that those cards set
people sadly a-quarrelling; but that the dispute was over now,
and the parties were all going away to my Lord Mohun's house,
in Bow Street, to drink a bottle more before going to bed.

A half-dozen of chairs were now called, and the six gentlemen
stepping into them, the word was privately given to the
chairmen to go to Leicester Field, where the gentlemen were set
down opposite the 'Standard Tavern.' It was midnight, and the
town was a-bed by this time, and only a few lights in the
windows of the houses; but the night was bright enough for the
unhappy purpose which the disputants came about; and so all six
entered into that fatal square, the chairmen standing without
the railing and keeping the gate, lest any persons should
disturb the meeting.

All that happened there hath been matter of public notoriety,
and is recorded, for warning to lawless men, in the annals of
our country. After being engaged for not more than a couple of
minutes, as Harry Esmond thought (though being occupied at the
time with his own adversary's point, which was active, he may
not have taken a good note of time) a cry from the chairmen
without, who were smoking their pipes, and leaning over the
railings of the field as they watched the dim combat within,
announced that some catastrophe had happened, which caused
Esmond to drop his sword and look round, at which moment his
enemy wounded him in the right hand. But the young man did not
heed this hurt much, and ran up to the place where he saw his
dear master was down.

My Lord Mohun was standing over him.

'Are you much hurt, Frank?' he asked in a hollow voice.

'I believe I'm a dead man,' my lord said from the ground.

'No, no, not so,' says the other; 'and I call God to witness,
Frank Esmond, that I would have asked your pardon, had you but
given me a chance. In--in the first cause of our falling out, I
swear that no one was to blame but me, and--and that my
lady----'

'Hush!' says my poor Lord Viscount, lifting himself on his
elbow and speaking faintly. 'Twas a dispute about the
cards--the cursed cards. Harry, my boy, are you wounded too?
God help thee! I loved thee, Harry, and thou must watch over
my little Frank--and--and carry this little heart to my wife.'

And here my dear lord felt in his breast for a locket he wore
there, and, in the act, fell back fainting.

We were all at this terrified, thinking him dead; but Esmond
and Colonel Westbury bade the chairmen come into the field; and
so my lord was carried to one Mr. Aimes, a surgeon, in Long
Acre, who kept a bath, and there the house was wakened up, and
the victim of this quarrel carried in.

FOOTNOTES:

[31] Charles, fifth Baron Mohun (1675?-1712), was the eldest son of the fourth baron, who died from a wound received in a duel when his son was about two years old. He fought his first duel in 1692, breaking out of his lodgings, where he was confined in consequence of a quarrel over dice, for the purpose, with the assistance of the Earl of Warwick of the present case, the grandson of the Lord Holland of the Civil War. This encounter ended in both combatants being disarmed. Two days later he abetted in the murder of Mountfort, an actor. One Captain Hill was in love with Mrs. Bracegirdle, the famous actress, and supposed that he had cause to be jealous of the attentions she received from Mountfort, the equally eminent actor. Accordingly Hill and Mohun formed a plan (estimated to cost L50 in all) to carry off the lady as she came out of the theatre: and providing themselves with a coach-and-six and a body of soldiers set out on the enterprise. They missed Mrs. Bracegirdle at the theatre, but found her by chance coming out of a house in Drury Lane where she had supped. The attempt to carry her off in the coach failed, owing to the vigorous resistance made by her friends. Hill and Mohun, however, were allowed to escort her to her lodgings in Howard Street, where they saw her safely home. Mountfort lived in Norfolk Street, at the bottom of Howard Street; and as he was passing down the latter some two hours later, he was accosted by Mohun in a more or less friendly way; but while they were talking together, he was attacked and killed by Hill, who did not give him time to draw his sword. Hill fled, but Mohun was tried by his peers in Westminster Hall, January 1692-93. The trial excited great interest partly owing to the youth of the prisoner, and on a question being raised as to the degree of complicity necessary to constitute his guilt, he was acquitted. A report of the trial will be found in _State Trials_, xii. 950. There are also some picturesque references to it in Chapter xix. of Macaulay's _History_. Mohun fought another duel in 1694, served for two years in Flanders, returned to England, and fought a duel with Captain Bingham in St. James's Park, which was interrupted by the sentries. The same year he was present at the death of Captain Hill, in the Rummer Tavern. The present case occurred in 1698, and seems to have closed his career as a rake. He was sent under Lord Macclesfield on a mission to present the Electress-Dowager Sophia with a copy of the Act of Succession, and he frequently took part in debates in the House of Lords. After Lord Macclesfield's death he became entangled in a long course of litigation with the Duke of Hamilton; and on their meeting in Master's Chambers, remarks passed between them which led to a duel, when both were killed. The Tories suggested that the Whigs had arranged the duel in order to get rid of Mohun because they were tired of him, and Hamilton, because they wanted to prevent his projected embassy to France.

[32] John Lord Somers (1651-1716) was born at Whiteladies, near Worcester, educated at Trinity College, Oxford, and called in 1676. He appeared as junior counsel in the trial of the Seven Bishops, at the instance of Pollexfen (see vol. i. p. 241), and took a conspicuous part in the settlement of the monarchy after the Revolution, being an influential member of the Committee which drafted the Declaration of Rights. He became Solicitor-General in 1689, and Attorney-General in 1692, in which capacity it is curious to notice that he conducted the prosecution of Lord Mohun for the murder of Mountfort (see _ante_, p. 60). He became William III.'s first Lord Keeper in 1692-3, and Lord Chancellor in 1697. During all this time he was one of William's most trusted advisers, and was consulted by him on the most confidential questions relating to foreign policy. He was also familiar with the leading literary and scientific men of his time, being responsible for Addison's pension, and receiving the dedication of the _Tale of a Tub_ from Swift. He also conferred favours on Rymer and Madox. He resigned the Great Seal in 1700 after a motion for his perpetual exclusion from the presence of the King had been defeated by a small majority in the House of Commons; having already lost the King's confidence by the position he adopted in regard to William's propositions for a standing army, and attracted the hostility of the country partly by his opposition to the bill for the resumption of the grants of forfeited Irish estates. He played a conspicuous part in the reign of Queen Anne as the head of the Whig junto formed at the beginning of that reign, but never resumed office.

[33] Sir Nathan Wright (1653-1721), born of an Essex family, was educated at Emmanuel College, and was called in 1677. He was junior counsel for the Crown in the trial of the Seven Bishops, and opened the pleadings. He became Serjeant in 1692. On the retirement of Lord Somers in 1700, a difficulty was found in providing a successor, and eventually the post of Lord Chancellor was offered to, and accepted by, Wright. He enjoyed no reputation, good or bad, as a judge, except that he was very slow, and generally considered unfit for the place. After holding office for five years he was dismissed on the accession to power by the Whigs in 1705. Speaking of his appointment as Lord Chancellor, Lord Campbell says, 'The occasional occurrence of such elevations seems wisely contrived by Providence to humble the vanity of those who succeed in public life, and to soften the mortification of those who fail.'

[34] Thomas Lord Trevor (1659?-1730) was the son of a Secretary of State of Charles II. He was called in 1680, became a bencher in 1689, Solicitor-General in 1692, Attorney-General in 1695. He refused to succeed Lord Somers in 1700; but in 1701 succeeded Sir George Treby as Chief-Justice of the Common Pleas. He was re-appointed by Queen Anne, and was one of the twelve peers created by her in 1711 to create a majority in the House of Lords. He was removed from office in 1714 on the accession of George I.; but leaving the Tory party, which he had joined in Anne's reign, became Lord Privy Seal in 1726, and President of the Council in 1730, but died six weeks afterwards. He enjoyed a reputation as a good judge; but is chiefly remembered for his proper conduct of Crown prosecutions as Attorney-General after the Revolution.

[35] Benefit of clergy was originally the right of the clergy to be exempt from the jurisdiction of the lay courts, and to be handed over to the ordinary to make 'purgation.' This the accused clerk did by swearing to his own innocence and producing twelve compurgators who swore to the same effect. He was then 'usually acquitted' by a jury of twelve clerks; but otherwise he was degraded and put to penance. The right itself was gradually restricted: partly by a construction of the Statute of Westminster the First (1275), by which it was held to be necessary that the clerk should be indicted before he could claim his benefit; partly by the practice prevailing in the time of Henry VI. that he must first be convicted. Meanwhile its scope had been largely increased by its extension in 1360 to all lay clerks, who were taken to mean persons capable of reading. The law, however, which was applicable to the present case depended on two statutes, 4 Henry VII., c. 13, and 18 Elizabeth, c. 7; by the former any person allowed his clergy was to be branded, and was not to be allowed it again unless he was actually in orders; by the latter purgation was abolished, and any person taking benefit of clergy was to be discharged from prison subject to the power of the judge to imprison him for a year. By a statute of Edward _VI._ also, a peer ('though he cannot read') was allowed a privilege equivalent to benefit of clergy, but was not to be branded.

A certain number of offences were excluded from benefit of clergy during earlier times, and a great number during the eighteenth century, at the beginning of which the privilege was extended to all prisoners. Finally, the system was abolished in 1827. How this system, occupying as it did an important position in the criminal procedure of this country till a comparatively modern date, impresses a lawyer of the present day, may best be described in the words of Sir James Stephen:--'Of this branch of the law, Blackstone characteristically remarks that the English legislature "in the course of a long and laborious process, extracted by noble alchemy rich medicines out of poisonous ingredients." According to our modern views it would be more correct to say that the rule and the exception were in their origin equally crude and barbarous, that by a long series of awkward and intricate changes they were at last worked into a system which was abolished in a manner as clumsy as that in which it was constructed' (_History of the Criminal Law_, vol. i. p. 458).... 'The result of this was to bring about, for a great length of time, a state of things which must have reduced the administration of justice to a sort of farce. Till 1487 any one who knew how to read might commit murder as often as he pleased, with no other result, than that of being delivered to the ordinary to make his purgation, with the chance of being delivered to him _absque purgatione_. That this should have been the law for several centuries seems hardly credible, but there is no doubt that it was. Even after 1487, a man who could read could commit murder once with no other punishment than that of having M. branded on the brawn of his left thumb, and if he was a clerk in orders he could, till 1547, commit any number of murders apparently without being branded more than once' (_Ibid._, vol. i. p. 462).

[36] Convicted felons were incompetent as witnesses till the passing of Lord Denman's Act in 1843.

[37] Sir John Hawles (1645-1716) was born in Salisbury of a Dorsetshire family. He was educated at Winchester and Queen's College, Oxford. In 1689 he sat in the House of Commons for Old Sarum; he succeeded Sir Thomas Trevor as Solicitor-General in 1695 and so remained till 1702. He afterwards represented various western boroughs in Parliament, most of them Cornish. He was one of the managers of Sacheverell's impeachment in 1710. He died at Upwinborne.

[38] Sir Thomas Powys (1649-1719), of a Shropshire family, was educated at Shrewsbury, and was called in 1673. He became Solicitor-General in 1686, and as a supporter of the dispensing power became Attorney-General in 1687. As such he conducted the prosecution of the Seven Bishops. He frequently appears for the defence in State Trials during the reign of William III. He represented Ludlow in Parliament from 1701 to 1713, was made a Serjeant at the beginning of Anne's reign, and a Judge of the Queen's Bench in 1713. He was, however, removed from the bench on the accession of George I.

[39] To a modern practitioner to whom benefit of clergy is merely an archaeological puzzle, it would seem that the proper argument was that the imprisonment was a punishment, and that as French had not been imprisoned he was quit of the law; but two centuries make a great deal of difference in arguments on points of law.