Bloud to misrepeat the Evidence either to the prejudice of a just Cause for the dead or to press for unjust vengeance upon the living it being my duty only to recollect what is sworn and leave it all to your Lordships Judgement 3dly We have that which is Evidence in Law upon the view of the Body after his death It was viewed legally by a Jury of indifferent persons summoned by the Coroner three of them being produced do swear that there were a great many visible Bruises upon the Body and Swellings all about And for the discolouring of the parts bruised Roberts swears the patch was about the breadth of his hand Brown likewise swears that he was black and blue up and down the Body in broad patches These are Jury-men disinterested persons It is true Mr. Cony's Brother the last Witness for the King saith He knew nothing of the Business for his Brother would never acknowledge any thing to him but something that he speaks is very material That Dr. Conquest my Lord's Witness coming out of the Chamber one day seemed angry and to have taken some distaste as if he were neglected and used an expression which your Lordship may remember upon Mr. Cony's asking him what ailed his Brother he could not tell he said it might be A Pembroke-Kick And this is the sum of the Evidence for the King For the Evidence on the other side I think the substance of it is only That this Gentleman was used to have fainting Fits and those occasioned as they think by his hard Drinking and that might bring his death upon him but they offer no Counterproof to the Fact But the Question is now Whether or no this man came to his death by other means for it is no Argument to say because a man is sick it is lawful to kill him but we are to enquire whether he came to his death by those Blows given him by the Prisoner at the Bar If then it be admitted that the Blow was the cause of his death and the Kicks withall I humbly then submit to your Lordships consideration whether the Kings Evidence hath not reacht up to the Indictment Here is Murther with Malice implied by the Law for there is no colour of pleading a Provocation of the Blow to be the cause of his death Now whether or no it be so I humbly offer these Reasons for the Affirmation this men was not look'd upon to be a man in that condition as to be a dying man before the Blow Obj. But he was a great drinker that brought him to those Fits and that hastned his end Answ Though he was so yet from the instant that he did receive the blow he never had any ease till he died in so much that Mr. Savage tells your Lordships he took him up immediately after my Lord kicked him and he was some minutes before he could get him to life again and then he could not keep himself from Fainting again so that upon the circumstances of what the Witnesses for the Prisoner have said and the Evidence offered in behalf of the King if this were the cause of his death we leave it to your Lordships consideration whether it be not Murther in this Noble Lord the Prisoner at the Bar To that determination we submit the Cause and whatever opinion your Lordships shall be of in the Cause I have no more to say but that the King's Justice in this Prosecution was suitable to the Law given by the Almighty in the Infancy of the World That whosoever sheddeth man's Bloud by man shall his Bloud be shed L. H. St. Will your Lordships please to withdraw to consider of the Evidence Then the Lords went back in the same order they came in and went into the House of Lords and from thence after two hours debate they returned into the Court and Proclamation was made as followeth Cl. of Cr. Serjeant at Arms make Proclamation Serj. O yes my Lord High Steward of England his Grace straitly chargeth and commandeth all manner of Persons here present to keep silence upon pain of Imprisonment Then his Grace spake to the Peers L. H. St. Your Lordships have heard the Evidence against the Prisoner and for him on both sides and the Solemnity in this case is that your Opinions are to be delivered severally in the absence of the Prisoner who is to hear all that is by the Witness or Councel said against him but is to have his Judgment from the High Steward Upon the whole matter the Question is this Whether my Lord of Pembroke be guilty of the Felony whereof he stands Indicted for the Murther of Mr. Cony or not guilty The order of your Opinions being delivered is to begin with the Puisne Baron and so upwards I desire time to take your Lordships Judgments distinctly and I desire each of your Lordships to speak out that I may hear it L. H. St. My Lord Butler what is your Opinion Is Philip Earl of Pembroke and Montgomery guilty of the Felony and Murther whereof he stands Indicted or not guilty L. Butler Not guilty of Murther but guilty of Man slaughter The same Question to the rest The Lord High Steward counted their numbers L. H. St. Six of my Lords find him guilty eighteen find him not guilty fourty find him guilty of Man-slaughter Call for the Prisoner to the Bar. Cl. of Cr. Serjeant at Arms make Proclamation Serj. O yes Constable of the Tower of London bring forth the Body of they Prisoner Philip Earl of Pembroke and Montgomery on pain and peril shall fall thereon Then the Prisoner came in with the edge of the Ax still from him and his Grace spake to him as followeth L. H. St. My Lord of Pembroke You have been Indicted for the Murther of Nathaniel Cony and upon your Arraignment you have pleaded Not guilty and have put your self upon the Judgment of your Peers and your Peers have considered what hath been said for you and against you and the Judgment of my Lord is this That you are guilty of Man-slaughter for killing of Nathaniel Cony What can you say for your self why Judgment should not pass upon you to die according to the Law E. of P. I claim the Priviledge of the Statute made in that case my Lord. L. H. St. You must have it my Lord it cannot be denied you for by the Act of Parliament where Clergy is allowed to a Common person by Reading and Burning in the Hand a Peers convicted of such Felony is to be delivered without either therefore we cannot deny it you But your Lordship must give me leave to tell you that no man can have the benefit of that Statute but once and so I would have your Lordship take notice of it as a caution to you for the future Your Lordship is now to be discharged paying your Fees Then the Prisoner went from the Bar and his Grace by Proclamation thus dissolved his commission Cl. of Cr. Serjeant at Arms make Proclamation Serj. O yes O yes O yes my Lord High Steward of England willeth and commandeth all Persons here assembled to depart in Gods peace and the Kings from this place for his Grace doth now dissolve his Commission God save the King Then his Grace concluded the Ceremony by breaking his Staff FINIS
his death that it cannot be denied but whether or no this killing amount to Murther may be a matter of further controversie and I hold it my duty to acquaint your Grace and my Lords what the proof is and then what we have to offer to prove it to be an offence even of this nature My Lords I know to maintain an Indictment of Murther there must be a proof of Malice but the Law is plain your Lordships know it and my Lords the Judges will tell it you that there are two sorts of Malice the one is Malice express'd and that is when a man can be proved to have born before hand an ill will and hatred to the person he killed this sort of Malice we pretend not to be in this case But there is another sort of Malice which also in Law gives the denomination of Murder to the killing of a man which is Malice implied when any one shall without any provocation given by the party slain bring another by violence to his Death For our Law supposeth and that upon good ground that no man without a Provocation would kill his Brother unless he had Malice to him before-hand and that is the Malice that falls out to be the Ingredient of this case for the poor unfortunate Gentleman that was killed did not for ought that did appear to me and I have had all the proof given at the Coroners Inquest under my Examination give the least Provocation to this Noble Lord. Some have thought that a person might be guilty of malicious Murther though the party killed had given the Murtherer a blow but I shall not contend for so strict a construction of a Provocation for there was not in this case a blow struck no nor an angry word given all that I can find came from Mr. Cony was to complain that a Friend of his that came into the Company with him was turned out of doors and sure such a thing will never be taken to be a Provocation at leastwise such a one as will take away Malice implied I shall now my Lord give your Lordships an account of the nature of our Evidence as to the Fact and that my Lords in short for as I shall not use any aggravation above what the Cause requires so I shall not tire your Grace and my Lords with any long Speech but barely open the Evidence and tell you in short what will come in proof before you It was on Sunday the 3d. of February that my Lord of Pembroke and his Company were drinking at the House of one Long in the Hay Market I am sorry to hear the day was no better imployed by them and it was the misfortune of this poor Gentleman together with one Mr. Goring to come into this House to drink a Bottle of Wine my Lord of Pembroke saw them coming in and knowing Mr. Cony was very importunate with him to joyn Company he at first refused because of his Friend and told his Lordship they had business together but no denial he would take and so at last they did go into my Lord's Room After some distance of time when it was near twelve of the Clock at Night there fell out a difference between my Lord and Mr. Goring the Gentleman that came in with Mr. Cony who it seems gave my Lord of Pembroke some words which provoked him to express his distaste of them by throwing a Glass of Wine in his face which injury Mr. Goring so far resented as that he was about to draw his Sword but was prevented by some of the Company and put out of the Room to avoid further mischief This Gentleman Mr. Cony that was killed was not at all concerned in the matter of the difference but only desired to go out of the Room that he might look after his Friend who was thrust out of doors He knew not why without any Provocation as you will hear by and by my Lord of Pembroke falls upon him strikes him with one blow to the ground and when he was there trod upon him on his Back on his Belly on his Side and kicked him so that the poor Gentleman fell into a Swound and was after some time with some difficulty brought to himself again after they had perceived there was Life in him they lifted him up and laid him down on some Chairs that were in the Room and thinking too much had been done by them already they take their leaves of him and commit him to the care of the Drawer He was not as it should seem so carefully attended by the Drawer whose ignorance could not look after him as his condition required and so fell down off the Chairs again divers times After some time early in the morning he was carried away in a Sedan to his own Lodging and being there put to Bed as he did grow a little more and more recovered out of his stupefaction so he grew more and more in pain and sent for Doctors and Chirurgeons to consult with by whom he had all the means used that was possible to have saved his Life but it proved there was so much Bloud forced out of his Veins and gathered into one place of his Body by those Blows and Bruises that he could not be recovered and so after a Weeks time passed in intolerable pain died But yet all the time of his dying and even constantly to his death he did complain that it was my Lord's Bruises brought him into that condition It will also be proved that after his death upon view of the Body by the Coroner and his Jury there was the appearances of those Blows and Abuses by broad Bruises in several parts of the Body and this some of the Jury will testifie This in short is the matter of the Evidence which we shall briefly prove and then submit it all to your Lordships Judgment L. H. St. Call the Witnesses together and speak out Mr. Attorney At. Gen. Those we shall call first are Mr. Henry Goring Mr. Richard Savage Mr. John Shelly and Capt. Fitz-Patrick Cl. of Cr. The Evidence which you and every one of you shall give for our Soveraign Lord the King against Philip Earl of Pembroke and Montgomery the Prisoner at the Bar shall be the truth the whole truth and nothing but the truth So help you God L. H. St. Mr. Attorney whom do you begin with At. Gen. Mr. Henry Goring L. H. St. Stand forward Goring At. Gen. Pray Sir acquaint my Lords of the manner of your coming with Mr. Cony to Mr. Longs and what happened there L. H. St. Sir you must speak so loud that I may hear Goring May it please your Grace Mr. Cony and I did upon Sunday the 3d. of February last dine in the City we stayed very late there and I must ingeniously confess we had drank more than was fit for us to have done after that if it please your Grace I offered to set down Mr. Cony at his Lodgings but
must be extravasated Bloud in the lower Belly L. H. St. How did you think there came to be that quantity of Bloud there Raven This Bloud I think my Lord must be extravasated by the violence of his Gripes for it is proved he drank a great quantity of Claret and afterwards of Small Beer which set the Bloud upon a Fermentation that set him a Vomiting by the violence thereby used to Nature this Bloud was thrown down into the Belly but in all Natural Deaths if there be not so great a consumption of the Bloud that there is none left there must be some extravasated it is a clear case L. H. St. My Lord of Pembroke hath your Lordship any more Witnesses E. of P. Yes my Lord two more Benjamin Long and William Viner L. H. St. Who does your Lordship begin with E. of P. Long. L. H. St. Do you hear Long you must have as great a care what you say as if you were upon your Oath Long. A little before this business happen'd Mr. Cony comes into my House at Covent-Garden and said he was very ill he was just going to sit down and miss'd the Chair and had like to have faln down being almost in a Swound whereupon he said send for Dr. Conquest presently or else I shall die so I sent my Servant to call him who found him at the Coffee-house When he came in said he Sir how do you I am glad you are come said Mr. Cony for I am very ill and there were two Gentlemen came in with the Doctor that were then going to the Play-house said Mr. Cony I am taken with the Fainting Fits and fear they will kill me upon that Dr. Conquest bid him have a care of drinking for it would ruine him L. H. St. When was this Long. A little before Christmass my Lord. L. H. St. How long before he died Long. It was before he was hurt L. H. St. How long Long. Five or six Weeks my Lord as I remember I cannot tell exactly L. H. St. Well and what followed Long. Dr. Conquest would have him go home to Bed which I know not whether he did or no but he went away from our House and the Doctor said he would send him a Glister and some other things the next morning And this is all I can say L. H. St. Is that all you can say Long. Yes my Lord. L. H. St. Why was not this accident done at your House Long. No my Lord it was at my Brothers in the Hay-Market L. H. St. Then call next Viner what say you Viner May it please your Grace I am Drawer at Mr. Longs in the Hay-Market I did see my Lord strike him with his hand and that is all I came in just as he struck the blow and Captain Savage bid me keep out Mr. Goring which while I was doing I knew not what was done more but after they had laid him upon the Chairs they charged me to make a Fire and look after him and left him He fell down divers times off the Chairs and when he came to himself a little I asked him how he did he told me he was very sick and I got him still up again upon the Chairs And then he had several Fainting Fits in the Room and about seven of the Clock in the morning we sent him home in a Chair to his Lodging The same day at one of the Clock he sent for me to know what had happen'd for his own memory would not serve him to tell I did not think fit then to tell him my Lord had struck him but told him he had had many falls in the Room 'T is Fits said he that I have had not long since and it comes with my hard drinking and not looking to my self L. H. St. He supposed it to be so Viner Yes my Lord he himself did L. H. St. Did you see my Lord of Pembroke tread upon him Viner No my Lord I only saw the blow of his hand for I was getting Mr. Goring out of the Room L. H. St. Did he say my Lord of Pembroke did tread upon him Viner No he could not tell any thing that my Lord had done to him he was drunk that night and therefore sent for me to know how it was L. H. St. My Lord of Pembroke hath your Lordship any more Witnesses E. of P. No my Lord. L. H. St. Did not your Lordship speak of one Snell my Lord a Chirurgeon at first E. of P. I did expect my Lord they should have brought the person your Grace speaks of L. H. St. Why my Lord. E. of P. Because he was their Chirurgeon L. H. St. What say you now of the King's Councel to my Lord's defence Sol. Gen. If my Lord hath done we are ready to go on for the King L. H. St. Will your Lordship say any thing more for your self E. of P. I have nothing more to say my Lord. Then Sir Francis Winnington his Majesties Solicitor General summ'd up the Evidence and concluded the Charge thus Sol. Gen. May it please your Grace my Lord High-Steward of England and my Noble Lords that are now Judges of this Cause of Bloud I shall with all faithfulness endeavour to discharge my duty in this Great Court and confine my self solely to the Evidence that hath been given and I hope I shall not do this Noble Lord the Prisoner at the Bar any injury by misrepetition This Evidence my Lords that hath been produced for the King to make it out that the Prisoner at the Bar is guilty of Murder doth may it please your Grace consist of three parts 1. In the first are contained those Matters of Fact which did arise at the time when the poor unfortunate Gentleman came into my Lord of Pembroke's company and what happen'd before my Lord of Pembroke did depart from that place 2. The second part of the Evidence consists of Matters that did arise by confession of the Party and his discoursing with persons who came to visit him or were with him during the time of his sickness 3. The third part doth consist of Matters arising after his death upon the view of the Body Under these three heads are comprehended all the King's Evidence and with humble submission I humbly conceive that the Evidence doth reach the Indictment which is for the Crime of wilful Murder But when I have humbly stated the Fact I must submit it to the Judgement of my Noble Lords and Peers But to take a due method I shall begin with a word or two of what Mr. Attorney General was pleased to hint when he opened the Cause that is to shew what Murder is and wherein we conceive the Evidence comes up to the Indictment Murder in our Law is when one man kills another upon malice fore-thought now that malice is comprehended under two particulars The one is exprest a former grudge discontent and hatred to a man to lye in wait to slay him The other
that he would joyn some one else with me in consultation He asked me what Physician he should send for I desired him to name any one whom he had a mind to he said he knew none and therefore would have me take whom I would and then named Dr. Lower and obtained his consent to have his advice whom I brought with me to his Lodgings And the Saturday before he died as we were coming in the Coach I told Dr. Lower what I had known of his Distemper before and what might be the occasion of it which when we came thither I repeated again in Mr. Cony's presence who did confess the whole to be as I said that he had been a very hard Drinker of Wine and strong Waters upon it which had he believed caused a Stagnation of Bloud in his Body which might be the occasion of his fainting Fits We consulted the whole cause he owned no Blow or Kick that he had received neither did I believe his Intrals had received any such prejudice because I saw him my self take two or three Glisters as particularly that evening Yet he would not be regular but that night drank three whole Tankards of cold small Beer which did put him into a very violent Fit of the Gripes He sent for me and having left him pretty well I wondred what alteration could cause so violent a Distemper in him so suddenly He fell a vomiting and vomited all night and when I came and found him in a dying Fit I gave him some Drops I had about me and fetcht him to life again but still he was very bad and he had a Glister for the Gripes he would fain have had some more small Beer which I disswaded him from and advised him rather to white-Wine Posset-drink but he swore a great Oath he would have small Beer Dr. Lower I suppose saw him that morning An hour before he died I came again and thought fit to bloud and so he was he bled about eight ounces and was a little better so I left him An hour after I came again and found he was dead but for his complaining of any Bruise or Hurt that way received I remember not L. H. St. Did you see him after he was dead and when he was opened Conquest Yes my Lord I did see him opened L. H. St. What was your Judgement then Conquest My Lord There was clotted Bloud among the Bowels that was extravasated My Lord The breaking out of which I did attribute to the great quantity of small Beer he had drank and the Grippings that followed upon it but the Bowels were none of them touched and he himself attributed his Fits to that L. H. St. Mr. Attorney Will you ask him any cross Questions Att. Gen. No my Lord. L. H. St. Then Dr. Lower pray speak your knowledge Lower All the Account my Lord that I can give is That the day before Mr. Cony died Dr. Conquest did come to me to desire me to go with him and by the way as he related told me the manner of his Fits and what he thought was the occasion of them and in that Discourse we continued till we came to his Lodgings where we found him in his Bed and when he was up Dr. Conquest repeated what he had told me before and he acknowledged all that to be true I my self asked him many Questions how he found himself he said those Fits came upon him suddenly by sickness upon his Stomach but there was not any Discourse in my hearing of any Bruise or Hurt that way nor had I any reason to suspect any such thing should be the cause of his Ilness for he had no symptome of a Fever upon him either in Tongue Pulse or Urine which would have been had he owned his Distemper to any thing of that kind The next day I was sent for to him early but my necessary attendance on other Patients would not let me come quickly to him When I came I found him dying and seeing no hopes of his recovery left him I was desired to be present at the Dissection but because of the rumour of this Business I said it would be a troublesom matter and therefore would purposely avoid it L. H. St. So you did not see him dissected Lower No my Lord I did fear being troubled and would have avoided it but could not it seems for I am come here to testifie this L. H. St. Did he use any words to you whilst he was sick complaining of any abuse or wrong offered him by beating or kicking Lower No my Lord. L. H. St. How long was it before he died that you saw him Lower It was on Saturday at four of the Clock in the afternoon and he died on Sunday at noon L. H. St. And when you came to see him again you found him dying Lower Yes my Lord. L. H. St. But you say all the time you were with him you saw no symptome of a Fever on him Lower No none at all my Lord. L. H. St. I then ask you this Question Doctor Can any man be mortally hurt and bruised whereof he may languish and not have a Fever Lower According to my knowledge and experience my Lord usually and most commonly upon a mortal Bruise an Inflamation follows and that Inflamation causes a Fever which will be evident in the Patient's Pulse or Tongue or Water but none of these I found so effected with Mr. Cony L. H. St. Have you any thing to say to this Gentleman Mr. Attorney Att. Gen. No my Lord. L. H. St. Where then are the rest of your Witnesses My Lord of Pembroke Will you call any more Evidence E. of P. Yes my Lord Mr. Raven L. H. St. Dr. Conquest pray before you go you say you told Dr. Lower of Mr. Cony's Fits before were they the same with those he had in his last sickness Conquest Yes my Lord the same Fainting Fits L. H. St. And you imputed them to the same cause Conquest Yes my Lord to his hard drinking Wine and Strong-waters and then great quantities of Small Beer I told his Landlady often it would kill him but I could never get him to be regular nor take any advice L. H. St. Hath your Lordship any more Witnesses E. of P. Mr. Raven my Lord. L. H. St. Come forward Mr. Raven and speak out Raven I viewed the Body my Lord before and when it was opened and it was reported to me that there was a Bruise in each side of the Belly of which thereupon I took a stricter view and could find no blackness nor blewness nor marks of Bruises upon which the Body was opened and there issued thence clotted Bloud then I looked upon the Cawl which was withered and consumed and the Heart was as loose as a Rag and his Lungs stuck to each side of his Ribs and as to the matter of the Bloud that was not an extraordinary thing for it is known to Physicians that in all Natural Deaths there