AN IMPARTIAL ACCOUNT OF THE TRIAL OF THE LORD CONWALLIS LONDON Printed in the Year 1679. AN IMPARTIAL ACCOUNT OF THE TRIAL OF THE LORD CONWALLIS AFTER my Lord High Steward was ascended to the High Chair of State and sate down therein the Commission was delivered by the Clerk of the Crown in the Chancery to my Lord on his Knees who delivered it to Sir Thomas Fanshaw Clerk of the Crown in the Kings Bench Office and he received it kneeling Then Proclamation was made by the Serjeant at Arms who was Cryer for the day Serjeant O Yes O Yes O Yes My Lord High Steward of England strictly chargeth and commandeth all manner of Persons here present upon pain of Imprisonment to keep silence and give Ear to his Majesties Commission To my Lord High Steward of England to his Grace directed The Clerk of the Crown with his Face to my Lord High Steward Reads it thus Clerk of the Crown Charles Rex Carolus Secundus c. All which time my Lord and the Peers stood up bare Serjeant God save the King Cl. Cr. Make Proclamation Serjeant O Yes The King at Arms and the Usher of the Black Rod on their Knees deliver the White Staff to my Lord who re-delivered it to the Usher of the Black Rod who held it up all the time before him Cl. Cr. Make Proclamation Serjeant O Yes My Lord High Steward of England strictly chargeth and commandeth all Justices and Commissioners and all and every person and persons to whom any Writ or Precept have been directed for the certifying of any Indictment or of any other Record before my Lord High Steward of England to certifie and bring the same immediately according to the Tenor of the said Writs and Precepts unto them or any of them directed on Pain and Peril as shall fall thereon The Lord Chief Justice of the Kings Bench return'd his Certiorari and the Record of the Indictment by the Grand Jury of Middlesex which was read by the Clerk of the Crown in haec verba Cl. Cr. Virtute c. L. H. Stew. Call the Constable of the Tower to return his Precept and his Prisoner Cl. Cr. Make Proclamation Serjeant O Yes Constable of the Tower of London return the Precept to thee directed and bring forth the Prisoner Charles Lord Conwallis on Pain and Peril as will fall thereon The Lord Lieutenant of the Tower brought in the Prisoner on his left Hand with the Axe before him born by the Deputy Lieutenant which he held with the Edge from him and returned his Precept in haec verba Cl. Cr. Virtute c. L. H. Stew. Call the Serjeant at Arms to return his Precept Cl. Cr. Make Proclamation Serjeant O Yes Roger Harfnet Esq Serjeant at Arms to our Soveraign Lord the King return the Precept to thee directed with the Names of all the Lords and Noblemen of this Realm Peers of Charles Lord Conwallis by thee summoned to be heard this day on pain and peril as will fall thereon He delivered his Precept return'd with a Schedule annexed thus Cl. Cr. Virtute c. Make Proclamation Serjeant O Yes All Marquesses Earls Vicounts and Barons of this Realm of England Peers of Charles Lord Conwallis which by Commandment of the Lord High Steward of England are summoned to appear this day and to be present in Court and to answer to your Names as you are called every one upon pain and peril as will fall thereon Then the Panel was called over the number of Peers summoned were 35. in order as followeth Thomas Earl of Danby Lord High Treasurer of England c. All that appeared answered to the call standing up bare Then my Lord High Steward made a Speech to the Prisoner at the Bar thus Lord High Steward My Lord Conwallis The violation of the Kings Peace in the chief Sanctuary of it his own Royal Palace and in so high a manner as by the Death of one of his Subjects is a matter that must be accounted for And that it may be so It hath pleased the King to command this High and Honourable Court to Assemble in order to a strict and impartial Enquiry The Wisdom of the Law hath therefore styled it the Kings Peace because it is his Authority that commands it it is his Justice that secures it it is he on whom Men do rely for the safety of their Liberties and their Lives in him they trust that a severe Account shall be taken of all the Violences and Injuries that are offered to them and they that trust in the King can never be deceived It is your Lordships great unhappiness at this time to stand Prisoner at the Bar under the weight of no less a Charge than an Indictment of Murder and it is not to be wondred at if so great a misfortune as this be attended with some kind of confusion of Face when a Man sees himself become a spectacle of Misery in so great a presence and before so Noble and so Illustrious an Assembly But be not yet dismay'd my Lord for all this let not the Fears and Terrors of Justice so amaze and surprise you so as to betray those succours that your reason would afford you or to disarm you of those helps which good discretion may Administer and which are now extreamly necessary It is indeed a dreadful thing to fall into the hands of Justice where the Law is the Rule and a severe and inflexible measure both of Life and Death But yet it ought to be some comfort to your Lordships that you are now to be tried by my Lords your Peers and that now you see the Scales of Justice are held by such Noble hands you may be confident they will put into them all the Grains of allowance either Justice or Honour will bear Hearken therefore to your Indictment with quietness and attention observe what the Witnâ—sses say against you without interruption and reserve what you have to say for your self till it shall come to your turn to make your defence of which I shall be sure to give you notice and when the time comes assure your self you shall be heard not only with Patience but with Candor too And then what Judgement soever my Lords will give you your self will and all the World be forc'd to acknowledge the Justice and Equity of their Judgment and the Righteousness of all their Lordships Proceedings Read the Indictment Cl. Cr. Charles Lord Conwallis Thou standest Indicted in the County of Middlesex by the Name of c. How sayest thou Charles Lord Conwallis Art thou guilty of this Felony and Murder whereof thou standest Indicted Or not guilty Lord Conw Not Guilty Cl. Cr. How wilt thou be tri'd Ld. Con. By God and my Peers Then my Lord High Steward addressed himself to the Lords thus Ld. H. Stew. My Lords Your Lordships have here a Member before you of your Noble Body exposed to the shame of a publick Arraignment and which to a Man of
committed my Lord was not with Mr. Gerrard but that will be no Objection in the Case for if he did partake in the Design of the other I will answer it with the Case of my Lord Dacres of the South who with some other went unlawfully to steal Deer and the Keeper coming some fled among whom my Lord was one the Keeper was killed my Lord Dacres being at that time without the Pales a Mile off from the Place and yet was found guilty of the Murther and left both his Lands and his Life for it But here my Lord Conwallis was present for the Witness swears the Distance was not so great but it might be discerned Now whether he was aiding or assisting is the next thing in question What occasion had they of Malice Revenge or Injury to the Centinel They both swore they would kill him had there been any excuse for the other if one of them had killed the Centinel that could not be well they did not kill the Centinel but at the same time take up a causeless offence against another and kill him I argue that the Malice against the Soldier was diffusive to the Boy and one of the Witnesses proves that one of them swore he would kill some Body now no one speaks to any thing of my Lords reproving Mr. Gerrard Thus stands the Case before your Grace and my Lords It is a Case of Blood and it cries loud how far this Noble Lord and Prisoner at the Bar is guilty thereof you are to enquire and without all doubt will give a clear Verdict according to Justice and Honour Lord High Stew. My Lords you have heard the Evidence of your Lordships Please to go and consider of it you may Then the Prisoner withdrew into his own apartment with the Lieutenant of the Tower The Lords went into a Room behind the Court of Chancery and after a stay of two hours return'd and being all sate the Earl of Danby Lord High Treasurer of England who was the first of the Jury addressed himself to my Lord High Steward and said Earl of Danby My Lord High Steward there is a question in Law of which some of my Lords desire to receive satisfaction before they can give in their full Verdict acd we desire to know of your Grace whether it be proper here to ask the question of your Grace or to propose it to the Judges Lord H. Stew. If your Lordships doubt of any thing whereon a question in Law ariseth the latter opinion and the better for the Prisoner is that it must be stated in the presence of the Prisoner that he may know whether the question be truly put It hath sometimes been practised otherwise and the Peers have sent for the Judges and have asked their opinion in private and have come back and given their Verdict according to that opinion and there is scarce a President of its being otherwise done but there is a latter Authority in Print that doth settle the Point so as I tell you and I do conceive it ought to be followed and it being safer for the Prisoner my humble Opinion to your Lordships is that he ought to be present at the stating of the Question Call the Prisoner to the Bar. Who being come my Lord spake thus to him Lord High Steward My Lord Conwallis My Lords the Peers since they have withdrawn have conceived a doubt in some matter of Law arising upon the matter of Fact in your Case and they have that tender regard of a Prisoner at the Bar that they will not suffer a Case to be put up in his absence lest it should chance to prejudice him by being wrong stated therefore your Lordship will do well to attend the question that is raised and my Lords will you please to propound your doubts It was taken notice of here that by opening the matter by Mr. Solicitor the matter of Murder was explained to be meant by having a prepensed Malice and in that Case it was opened to us that any Persons then present and that had in any sort contributed to the Disorders they were as equally guilty as they whose hand had shed the Blood of the Person killed Now the doubt of some of my Lords is whether if it be found but Man-slaughter those are equally guilty that are present and have proved to contribute to the disturbance of that Crime as they are in Murder because some of them have not the satisfaction that they are the same Lord High Steward My Lords the Judges I take it the doubt proposed to you is this whether or no those that are present and have contributed to the disorders whereby such an accident doth ensue as proves to be Man-slaughter be as culpable as he that doth the immediate Fact as it is in the Case of Murder After a little Pause and Conference the Judges returned this Answer Judges We have had Conference of this Case and our humble Opinion is If sundry Persons be together aiding and assisting to an Action wherein a Man-slaughter doth ensue as in Case of a sudden business without malice prepensed they are equally guilty with the Man-slaughter as they are in the Case of Murder prepensed Earl of Danby The Lords desire to withdraw once more which they did and after a short space returned and being called over answered to their Names and all appearing my Lord High Steward took their Verdict seriatim beginning at the Puisne Lord in the following orders they answering standing bare with their hands on their Breasts Lord High Steward My Lord Duras Is Charles Lord Conwallis guilty of the Felony and Murder whereof he stands Indicted or not guilty Lord Duras not guilty The same question he demanded of each who answered thus My Lord Butler not guilty Lord _____ not guilty Lord Maynard not guilty of Murder but guilty of Man-slaughter Lord Paget not guilty Lord Berkly not guilty of Murder but guilty of Man-slaughter Lord Newport not guilty Lord Hallifax not guilty Lord Viscount Cambden not guilty Lord Guilford not guilty Lord Alisbury not guilty of Murder but guilty of Man-slaughter Lord Craven not guilty Lord Bath not guilty Lord Clarendon not guilty Lord Sunderland not guilty Lord Peterborough not guilty Lord Devonshire not guilty Lord Northampton not guilty Lord Bridgwater not guilty Lord Dorset not guilty Lord Suffolk not guilty Lord Bedford not guilty Lord Derby not guilty Lord Kent not guilty Lord Oxford not guilty Lord Arlington not guilty Lord Brereton not guilty Lord Lindsey not guilty of Murder but of Man-slaughter Lord Dorchester not guilty Lord Anglesey not guilty of Murder but of Man-slaughter Lord Danby not guilty of Murder but of Man-slaughter Lord High Steward Call the Prisoner to the Bar. Then the Prisoner came to the Bar and the Deputy Lieutenant of the Tower held the edge of the Axe towards him while my Lord High Steward spake thus unto him Lord High Steward My Lord Conwallis you have been Indicted for Murder pleaded not guilty put your self upon your Peers and your Peers upon consideration of the whole matter have acquitted you and found you not guilty so you are to be discharged Cl. Cr. Make Proclamation Serj. O Yes my Lord High Steward of England willeth and commandeth all Persons to depart hence in Gods Peace and the Kings for my Lord High Steward of England his Grace doth dissolve his Commission God save the King At which words my Lord High Steward holding the white Staff which was delivered him by the Usher of the Black Rod on his Knees in both hands over his head snapt it in two and the Assembly broke up FINIS Sanders Case in Plowden fol. 473. Anno 33 H. 8. Coke 3 Inst fol. 211. Cooke Inst fol. 3 0. Pasch 20. Hen. Earl of Danby
Honour is much less to the hazard both of his Life and Estate All that he hath and ever hopes to have his Wealth his Fame his Posterity All that is valuable to him in this World intirely depends on your Lordships Judicature who are now his Peers and on whom he doth freely put himself My Lords The Priviledge of this kind of Tryal and Judicature is a part of the true greatness of the English Nobility It is an eminent and an illustrious Priviledge It is a solid Point of Honour and Dignity It is a Priviledge that no Neighbour Nation ever had and a Priviledge this Nation never was without It is not a Priviledge Created by the Great Charter but confest and acknowledged by it They look but a little way that find this in the steps of the Norman Conquest for it is to be found even in the footsteps of the Saxon Monarchy when Godwyn Earl of Kent was Tried by Earls and Barons And it is no improbable conjecture of theirs who do think the Wisdom of this Constitution was taken from that Law amongst the Romans whereby it was made unlawful for any Man to sit upon a Senator that was not himself of the same Order a Priviledge that as learned Civilians tell us continued with them during the Raign of many of the Roman Emperors But my Lords as this is a Priviledge as antient as Monarchy so we have found by many old Experiences that it cannot be taken away without the dissolution of that Government Therefore this is one of those many tyes by which the interest of the Nobility as well as their duty have obliged them to the Service of the King In the exercise of this Priviledge at this time I know your Lordships will weigh the Fact with all the Circumstances whereby it is to receive its true and its proper Doom Your Lordships are too just to let pitty make any abatement for the Crime and too wise to let Rethorick make any Improvement of it This only will be necessary to be observed by all your Lordships that the fowler the Crime is the clearer and the plainer ought the Proof of it to be There is no other good reason can be given why the Law refuseth to allow the Prisoner at the Bar Counsel in matter of Fact when his Life is concerned but only this because the Evidence by which he is condemned ought to be so very evident and so plain that all the Councell in the world should not be able to answer it upon this ground it is that the Law hath trusted your Lordships with the Tryal of your Fellow Peers no trust can be more nobly lodged nor no Judicature had ever more true submission made to it Therefore it would be in me some want of respect to this August and noble Assembly should I go about to put your Lordships in mind of your Duty no doubt you will observe the Evidence carefully weigh it diligently and when that is done it is impossible but the Judgment you will give must be Right and Honourable and worthy of so wise and so great a Body Therefore I will not detein your Lordships any longer from hearing the Evidence that is ready to be offered unto you Cler. Cr. Make Proclamation Serj. O yes if any will give Evidence for our Sovereign Lord the King against Charles Lord Conwallis Prisoner at the Bar let him come forth and he shall be heard for the Prisoner stands at the Bar upon his deliverance The Indictment was again read to the Peers Serj. Maynard Then Serj. Maynard the Kings Serj. at Law began thus May it please your Grace my Lord High Steward of England and this Great and Noble Assembly The Prisoner at the Bar Charles Lord Conwallis standeth indicted of a great Crime that he togather with Charles Gerrard and Edward Bourne not having in his heart the fear of God but instigated by the Suggestions of the Devil the 18. of May last did Felloniously and of his Malice fore-thought assault one Robert Clerk in Whitehall and that Mr. Gerrard took him up in his Arms flung him down and broke his Neck of which he instantly died to this he hath pleaded not guilty It lies upon us who are Counsell for the King in this case to prosecute it and prove it to you Sir William Jones the Kings Attorney General then spake thus Attorn Gener. May it place your Grace my Lord High Steward of England and my Lords summoned for the Tryal of the Prisoner at the Bar This Noble Lord stands Indicted for Murder an Offence my Lord which is the first and greatest that is forbidden by the second Table and an Offence of that nature that the Law of God hath by a most Peremptory Sentence condemned and decreed that whoso sheddeth mans Blood by Man shall his Blood be shed Whether this Noble Lord be guilty of it remains upon your Lordships to try and I shall very shortly state the matter of Fact which we shall prove and then let the Evidence be offered to you We do not pretend my Lords neither doth the Indictment lay it that this great Offence was committed by the hand of my Lord Conwallis For I know your Lordships have observed the Indictment by which it is alleadged that the hand of Mr. Gerrard did the Fact But my Lords if we shall make it out that my Lord Conwallis did concur to this Act and had in himself at that time an Intent to be a Murtherer then it will be declared by his Grace my Lord High Steward and my Lords the Judges that though his hand and did it not yet he is equally guilty as if it had Now to make out the Charge against him our Evidence will be shortly thus On the 18. of May last Early in the Morning between the hours of one and two came down two Gentlemen with three Footmen behind them out of the Gallery at Whitehall by the Stairs that lead down to the Park I call them two Gentlemen because it was not then discovered who they were or of what quality but your Lordships will perceived by the course of the Evidence They were my Lord Conwallis and Mr. Gerrard comming down to that unseasonable hour the first Question they askt the Centinel who watched at the Foot of the Staires was the hour of the Night and from him had accompt that it was so much The Prisoner and Mr. Gerrard were somewhat distempered with drink and made him a reply that he lyed with great Oaths accompanying it at that time they did no more but go by him into the Park where after they had continued by the space of an hour back they returned to the Stairs and the Centinel demanding according to his Duty who came there They answered him in very obscene and uncivil Language and threatned they would kill the Centinel who only did his duty in enquiring who came by him at that time of night And we shall make it appear they were in a kind
of Contention among themselves who should kill him for as I am informed I know if it be not proved your Lordships will observe it one desired pray let me kill him and the other desired pray let me kill him and threatned no less than to run him through My Lords the Centinel being of a good resolution was not affrighted from his place but kept them off and when they saw they could not win upon the Centinel that way one of them delivered away his Sword which he held in his hand not drawn and then was pelased to come to the Centinel and desired to kiss him and swore he would do that but that the Centinel did equally refuse and then they did use the same threatnings again and seemed to be in a contention who should run him through My Lords after some time being now come to the top of the Staires and there staying it hapned there came to the stair-foot two Youths and these young Men were it seems going to Bed to their Lodging which was very neer and did make it their request to the Centinel one of them did to call him up very early the next morning because he was to go of a Message out of the Town My Lord Conwallis and Mr. Gerrard remaining on the Top of the Stair-Case being as we said in disorder which is the strength of the Kings Evidence if proved both of them said before they went thence they would kill some or other which Evidence will go a great way to shew the concern that Noble Lord the Prisoner at Bar had in the Business It hapned as these Boys were making their request to the Centinel my Lord and Mr. Gerrard took notice of it and seemed to be concerned that they should command the Kings Souldiers and bid the Centinel shoot him who told them he conceived the Boy had done him no wrong in asking a Civil kindness from him they again call'd to shoot him and they would bare him out which he still refused to do finding no reason for it then one of the two took occasion to swear a great Oath he would kick his arse to Hell to which the Boy that askt the Centinel made some reply wherein the word arse was repeated now whether they understood it as an Interrogation why kick my arse to Hell as he intended it or in a worse sence kiss my arse one of the Gentlmen in a rage came running down the Stairs and that Boy that in truth spoke the word run away and the other poor innocent Boy trusting in his own Innocency remained there until the Person came to him and did on his Knees in a manner desire not to be mistaken he was not the Person that used any ill words and cryed out O my Lord it was not I indeed my Lord it was not I but such at that time was the Intemperance and wrath of the Person who in such a fury descending the Stairs that whether with the Blow or the Fall the Boy received his death We find by our Information of the Evidence that he who did the thing was in truth Mr. Gerrard who is not yet taken but whether my Lord the Prisoner at the Bar did not concur in it and had not an Intention to kill some body is the question left for your Grace and these Noble Peers to decide This is the nature of the Fact only I desire to observe that it is true here was some distance between the place where my Lord Conwallis stood and the place were the Boy was killed Of what consequence that may be I leave to your Graces and these Noble Lords Consideration It was the distance of the Stairs But I think as every one knows they are not so many but what is done below may be easily seen at the Top. We shall now without detaining your Lordships any longer call the Witnesses and prove what hath been opened The Souldier proved the Fact as it was opened by Mr. Attorney General except that part about both swearing they would kill one or other which Passage was heard but by one of them and was spoken but by one of the Gentlemen They could not swear who where the Persons because of the darkness of the time The Boy who was the Companion of him that was slain and that used the the words that caused the Person to come down swore them to be a Repetition only by way of Interrogation why kick my arse to Hell Then Mr. Attorney desired to call my Lord Conwallis's own two Footmen who had been Indicted and acquitted at the Kings Bench Bar. Lord High Stew. My Lords the Judges is there any Question whether a Person acquitted of an Offence be a good Witness against another charged with the same Offence Judges None at all when he is acquitted he ought to be admitted Then the Copy of the Acquittal proved by a Clerk in the Crown Office was read and then sworn who fixed it upon the Person of Mr. Gerrard and swore that my Lord Conwallis was all the while upon the Top of the Stairs but after the Fact committed hasted away for fear of being knock'd down by the Souldiers and there ended the Kings Evidence Lord High Stew. Now my Lord is the time come for your defence You hear what is charged on you Pray speak what you have to say for your self Ld. Conwallis Then the Prisoner at the Bar confessed himself to have been in the Company that Night when this accident hapned which he hoped would be a warning to him to shun such disorders hereafter but that he had no evil Intention and but one witness swore that both of them would have killed the Centinel that he was not conscious to himself to have had a hand in it and therefore withdrew not himself but yeilded himself to the Coroner the next day which he proved by the Coroner himself and did therefore in trust of his Innocency submit himself to the Judgment of his Grace and his Peers Which being done Sir Francis Winnington the Kings Solicitor General summed up the Evidence in this manner Solicitor General May it please your Grace my Lord High Steward of England and my Noble Lords the Peers of the Prisoner at the Bar. According to the duty of my Place I am to repeat the Kings Evidence and state it to your Grace and these Noble Lords and submit to your great Judgments how far it will go for the Proof of this Crime wherein I shall observe the Duty of all Honest Men which is to do nothing either to wrest any thing in disadvantage of the Prisoner out of the Kings Evidence to goe farther than it ought nor shall omit any thing that shall require your Grace and the Noble Lords Justice for we come to seek out the truth and we question not but by this Honourable Tryal it will be brought to light But I beseech your Favour to take notice in the first place what Crime this Noble Lord stands accused of
and it is for Murder wherein our Law takes notice that Murder is where a Man unlawfully kills another under the Kings Peace with Malice forethought Now that here is a Murder committed I dare with all humily averre by whom that is the question for this Robert Clerk the Person killed doth appear by the Course of the Evidence to have been doing his Duty attending the place his Employment required gave no offence to any whatsoever but when the Person came down and fell upon him the poor Youth cryed indeed my Lord it was not I yet my Lords the Hands of Violence seized him and killed him Let us then see how the Evidence brings it home to the Noble Lord the Prisoner at the Bar wherein I must confess we have no express Evidence nay we have Evidence to the contrary that it was not his hand that did the Fact actually for it is by two Witnesses the Footmen swore that it was Mr. Gerrard who came down and gave the unfortunate Blow But we have that which we think with humble submission may reach this Noble Lord for I know your Grace and my Lords remember that after they had been an hour in the Park both returning did with horrid Oathes swear they would kill the Centinel there the Evidence fixeth it not upon one only but upon both It was at that time so dark they could not be distinguished but by the voice the Centinel hath given you an account how he performed his duty and in what Straight he was he had much ado to save his own Life or to prevent killing them But when they came upon the Stairs these two Boys came there in order to desire the Centinel to call one of them the next morning Then one on the Stairs no man can tell who it was with horrid Execrations askt will you command the Kings Soldiers shoot him Centinel we 'l bear you out but all this while it was dusk no distinction of Persons could be made whereupon it will fall out to come to this Case If several Persons intend to kill one and happen to kill another whether this be not Murder in them For the urging of this as to the matter in Law I leave to him that comes after me the Centinel swears one of them did swear he would kill one or other who it was took up that cruel Resolution is left to you to judge But at that time they were both together upon the Top of the Stairs and my Lord doth not seem to give one Title of Evidence that shews any Endeavours of the Prisoner at the Bar to prevent the other or disprove of his Actions If he had given an account of that he had silenced Justice But when they were all together he not endeavouring to stop his hand It is as much in Law as if he had strook the stroak The other Soldiers give you a Particular Account to the same Purpose The two last Witnesses do bring it to the Person of my Lord the Prisoner at the Bar and Mr. Gerrard who they swore came down the Stairs and his Man followed him to the Bottom and there staid at some distance till the Fact was done and they all fled This I take to be the matter of Fact faithfully proved before your Grace and the Lords the Peers and I would not trouble your Grace longer because I would not misreport any thing whereby I might do wrong either to the Prisoner or the Kings Cause and because I know your Grace and the Noble Lords will distinguish and find out where the truth is I must say it is a great comfort to all the Subjects of England that Crimes of this Nature are so carefully presented that whatsoever Honours and Dignities our Gratious Sovereign doth confer on any Person it doth not exempt him from the Justice of the Law It is not only a Comfort to this Assembly but to the whole Nation to see the King tender of his Subjects Persons and lives in that he hath caused this strict Course to be taken where the enquiry hath gone from the Grand Jury of the County till the Bill came to this great Tribunal where I doubt not but your Grace and these Noble Lords will give a righteous and just Judgement Then Serj. Maynard concluded Thus Serj. Maynard May it please your Grace my Lord High Setward of England and my Noble Lords the Peers I according to the duty of my place come now to conclude the charge on the Kings behalf some things are fit to be observed upon the Evidence that may produce a question for the decision of the Fact of what nature it is that a murder is committed is upon Evidence without all question and not only the death of a man here is a Child slain without any provocation in the world given by him to that Person that did it and that did it too notwithstanding the deprecations of the Boy affirming his own Innocency and that with as full Circumstances as a Christian almost could a thing these came from the Kings Palace walk in the Park call the Centinel Rogue and when he doth his duty swear to murther him with Oaths that a Christian would blush at and be afraid to hear God damme oftentimes reiterated and he that saith that word doth beg of God to hate him and affirm that he doth hate God The Obscenity that they used I shall not mention again these are Circumstanes of the Case that all were guilty of much is no doubt but who of the murder is the question And I humble conceive it is manifest that this Noble Lord was concerned in it For it is not requisite to make a Murder that he who kills a man hath conceived a malice against him for if I have a malice against any man and the effect of that fall upon another it is murder I apply it thus if it be a murder in Mr. Gerrard if this Noble Lord partake with him in the design which made it so to wit the malice against the Centinel he is as guilty as if his hand had been as much upon him as was Mr. Gerrards as in that known Case of the man that poisoned an Apple with an intention to kill his wife and she not knowing of the Poison gave some of it to her Chlid of which it died though he had no design to kill the Child yet the malice he had conceived against his wife suppli'd the defect of an express malice to make it murther and he was hanged therefore So if a man assault a Master in the presence of his Servant who defends his Master and is slain though the other had no purpose to kill him yet it is Felony in him for which he shall die the Law implying a malice Then here was clearly a malice to the Centinel how neer it comes to the Boy will come in question afterwards I find the Objection made in my Lord's Case That at the particular time wherein the Fact was