Did you see him laid there Shelly Yes Att. Gen. Was he sensless when he was taken up Shelly Yes Att. Gen. What was the reason do you think that he did not open his Eyes and keep them open Shelly Truly I believe his Drink as well as the Blows Att. Gen. The one as well as the other Shelly Yes Att. Gen. What then did they do with him Shelly They laid Blankets upon him and Pillows under him and laid him upon the Chairs Att. Gen. How many Chairs Shelly As many as reacht his length Att. Gen. Who did you leave him in charge withall Shelly With the Drawer Att. Gen. Did he speak between the time of his first fall and your going away Shelly No. Att. Gen. Did you see him after Shelly Yes three days after Att. Gen. What did he then say to you Shelly That he had a Fit but was pretty well recovered Att. Gen. When was it you saw him after that Shelly On the Saturday after and then he told me the same again L. H. St. Did he impute any thing to my Lord of Pembroke Shelly He said nothing at all to me of the ground of his illness but that which I have told your Grace L. H. St. My Lord of Pembroke will your Lordship ask this Witness any Questions E. of P. No my Lord. Att. Gen. Then We for the King desire to examine Mr. Fitz-Patrick Captain Fitz-Patrick Pray tell my Lord High-Steward and my Lords the Peers what you know Fitz-Pat My Lord I was in the Room at Longs with my Lord of Pembroke and my Lord was walking about the Room and he hears a noise without and steps to the door where opening the door half he saw Mr. Cony at the Bar who was just come in and seeing my Lord comes to salute him my Lord returning into the Room said to him Will you come in and joyn Company Mr. Cony answered I have my Friend here my Lord and brings Mr. Goring to my Lord who saluted him kindly and desired them both to walk in Upon which all we that were in the Room stood up and the Drawer gave them Chairs after the drinking about of a glass or two Mr. Goring both being drunk said amongst other discourse I will drink I will play I will fight with any man Who is this Gentleman said my Lord of Pembroke that I should never hear of or know him How said Goring 'S Blood not hear of me My Name is Goring a Name and Family as good as any Gentleman 's in England There is no body doubts it said my Lord Your Betters said Goring and then my Lord threw the Wine in his Face and Goring going to draw was put out of the Room by Mr. Savage and my Lord upon some words from Cony struck him down with his Hand Att. Gen. What words were those Fitz-Pat When I asked my Lord the reason why he struck Cony he told me it was because Cony had told him Goring should not go out of the Room till he knew the reason of it Att. Gen. Did you hear him say so Fitz-Pat No not I but my Lord upon my asking gave that for the reason L. H. St. What was the reason Fitz-Pat Because Mr. Cony told him Goring should not go out of the Room till he knew some reason for it After my Lord had struck him I was on the other side of the Table and could not see whether my Lord did stamp on him or kick him but I see my Lord's Knee stir and if he did kick him he kickt him but once for we ran in and took him up to lay him upon the Chairs and taking his Handkerchief out of his Pocket to wipe his face we pluckt out of his Pocket with it some false Dice which we afterwards put into the hands of Mr. Long to prove that they intended and proposed Play and after we had laid him on the Chairs and wrapt him up warm we left him Att. Gen. How was he after he was taken up Fitz-Pat He open'd his Eyes but being very drunk before could not keep them open but shut them again and we made a Bed for him on the Chairs and having wrapt him up warm we left him and ordered the Drawer to make him a fire L. H. St. Did you hear him speak after he was up Fitz-Pat No my Lord Mr. Savage spoke to him and asked him if he knew him he only lookt on him and by a turn of his Head seemed to answer him yes L. H. St. On the Oath you have taken did you hear him speak to my Lord of Pembroke at any time before he was struck Pat. Yes my Lord he had spoken before and I saw his Lips make a motion towards my Lord but what he said I know no otherwise than as I said before L. H. St. My Lord of Pembroke Will your Lordship ask this Witness any Questions E. of P. No my Lord. Att. Gen. We have now my Lord done with the Witnesses that were by when the Fact was committed by all whom your Lordships hear the Blows were all given by my Lord of Pembroke and in their company they are all Gentlemen of Quality and therefore I believe speak the truth We will now call some Witnesses that were with the unfortunate Gentleman in his sickness whereof one was his Physician another his Nurse and others who were often with him and after his death had a view of the Body These will give your Grace and my Lord an Account that he died of those Wounds and Bruises he then received they are these four Dr. David Bruce Mr. Thomas Hemes Mr. Charles Jackson Alice Avery Cl. of Cr. Hearken to me you four The Evidence that you and every of you shall give for our Soveraign Lord the King against Philip Earl of Pembroke shall be the truth the whole truth and nothing but the truth So help you God L. H. St. Whom do you call first Mr. Attorney Att. Gen. Dr. Bruce my Lord Pray Sir acquaint my Lord High-Steward his Grace and my Lords the Peers what you know of Mr. Cony's Sickness and the cause of his Death as you apprehend Dr. Bruce May it please your Grace All that I can evidence in particular of Mr. Cony's Sickness was this On Monday morning after his being in company of the Earl of Pembroke I was sent for to come to Mr. Cony's Lodgings and about Ten of the Clock I came he was then in extremity of pain in both Shoulders so that he could not move and his pains were so acute that he could not admit of touching Upon the abating of those pains by my application the next day he then began to complain of pains in his Belly but those not so extream as those in his Shoulders after some applications thereto he complain'd of both but in a little time was so eased that he kept well all night and till nine or ten the next morning The next day which was Wednesday when I came to
advantages that the Law can give you this Court takes it self obliged in Honour to put you in mind of it nor can your Lordship suffer an Inconvenience by having Councel to plead against you for no Arguments nor skill can pervert their Lordships Justice you shall not fall by the charms of Eloquence nothing shall load or press you but your own Crime and even that burthen may be alleviated if there be any room for an Abatement so far as it doth not contradict what they owe to the King to themselves to the Law and to the Justice of the Kingdom Hearken therefore my Lord to your Indictment with patience and attention give no Interruption to the Councel or Witnesses that speak against you and reserve what you have to say for your self till the time come when your Witnesses shall be examined and you make your Defence of which I will give you notice And this you may rely upon that when you do come to speak for your self you shall be heard with as much favour and candor as the matter will bear and when my Lords have heard all that can be said on both sides doubtless their Lordships will give such a Judgement in the Case as is fit for you to receive such a Judgement as becomes this great Court and such a Judgement as is suitable to that known Equity which their Lordships do always observe in all their proceedings Lord High-Steward Read the Indictment to my Lord. Clerk of the Crown Philip Earl of Pembroke and Montgomery hold up your hand which he obeyed by holding up his right hand You stand indicted by the name of Philip Earl of Pembroke and Montgomery late of the Parish of St. Martins in the Fields in the County of Middlesex for that you not having the fear of God before your eyes but being moved and seduced by the instigation of the Devil the 4th of February in the 30th year of the Reign of our Soveraign Lord Charles the Second by the Grace of God of England Scotland France and Ireland King Defender of the Faith c. with force and Arms at the Parish aforesaid in the County aforesaid in and upon one Nathaniel Cony Gent. in the peace of God and of our said Soveraign Lord the King then and there being feloniously voluntarily and of your malice fore-thought did make an assault and that you the said Philip Earl of Pembroke and Montgomery with the right fist of you the said Philip c. the said Nathaniel Cony in and upon the left part of the Head of the said Nathaniel Cony then and there feloniously wilfully and of your malice aforethought did strike and bruise and him the said Nathaniel Cony with your right fest aforesaid did beat and throw down to the ground and that you the said Philip c. the said Nathaniel Cony so lying upon the ground in and upon the Head Neck Brest Belly Sides and Back of him the said Nathaniel Cony then and there feloniously wilfully and of your malice before-thought did strike and kick by reason of which said kicking and bruising of the said Nathaniel Cony on the said left part of the Head of the said Nathaniel Cony with the said fist of you the said Philip c. and of the beating and throwing him to the ground aforesaid and also by reason of kicking of the said Nathaniel Cony with the said feet of you the said Philip c. on the Head Neck Brest Belly Sides and Back of the said Nathaniel he the said Nathaniel Cony from the aforesaid 4th day of February in the aforesaid year to the 10th of the same month of February in the Parish aforesaid in the County aforesaid did languish and languishing did live on which said 10th day of February in the year aforesaid he the said Nathaniel Cony of the striking and bruising beating and kicking died and so you the said Philip c. the said Nathaniel Cony at the Parish aforesaid in the County aforesaid in manner and form aforesaid feloniously voluntarily and of your malice fore-thought did kill and murther against the peace of our said Soveraign Lord the King his Crown and Dignity How say you Philip Earl of Pembroke and Montgomery Are you guilty of this Felony and Murther whereof you stand indicted or not guilty E. of Pemb. Not guilty Cl. of Cr. Culprit How will you be tryed E. of Pemb. By my Peers Cl. of Cr. God send you a good deliverance Serjeant at Atms make Proclamation Serj. O yes If any one will give Evidence for our Soveraign Lord the King against Philip Earl of Pembroke and Montgomery the Prisoner at the Bar let them come forth and they shall be heard for the Prisoner stands at the Bar upon his deliverance Then Sir William Dolben Knight the King's Serjeant at Law Recorder of the City of London opened the Indictment thus Sir William Dolben May it please your Grace my Lord High-Steward of England and the rest of my Noble Lords Philip Earl of Pembroke and Montgomery stands indicted for that he the 4th day of February last in the Parish of St. Martins in the Fields in the County of Middlesex of his malice fore-thought did make an assault upon one Nathaniel Cony in God and the King's peace there being and that he the said Philp Earl c. with his right Fist on the left part of the Head of the said Nathaniel then and there feloniously did strike and bruise and with his right Fist aforesaid him did cast and throw down to the ground and being so on the ground with his Feet did kick and strike of which said striking bruising and kicking the said Nathaniel Cony from the said 4th of February to the 10th of February following did languish and then died and so the Jurors do upon their Oaths say That the said Philip Earl of Pembroke c. the said Nathaniel Cony at the Parish and County aforesaid feloniously wilfully and of his malice fore-thought did murther against the King's peace his Crown and Dignity To this Indictment the Earl of Pembroke hath pleaded not guilty and put himself upon his Peers for his Tryal We who are of Councel for the King shall produce our Evidence to confirm this Accusation with what it is and of what nature his Majesties Attorney-General will acquaine your Grace and the rest of you my Noble Lords Then Sir William Jones who being called by Writ as Assistant to the House was within the Bar opened the Evidence to this effect Att. Gen. May it please your Grace my Lord High Steward of England and the rest of my Noble Lords Philip Earl of Pembroke and Montgomery stands here Indicted for the Murther of Nathaniel Cony That my Lord of Pembroke was the cause of his death I humbly conceive will need very little question before your Lordships for we have such proof that it was his hand threw him down and his feet that trod upon him and kicked him which was the cause of
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
he was so very ceremonious that he would see me at home it seems Long 's House the Tavern in the Hay-market was in the way and Mr. Cony would needs have us drink another bottle of Wine ere we parted It was late and the door shut but we knocking pretty hard for admittance did get it opened and as soon as the door was opened Mr. Cony went towards the Bar and made some noise being in drink my Lord of Pembroke was then in a low room in the House and knowing Mr. Cony as I thought came and asked him if he would come in and drink with him he replied My Lord I am with a Friend and we have some business together At length my Lord asked me very civilly to come in and we did after some time come in and when we were in my Lord drank to me as I remember and we stood round the Table a while and at last sate down in some Chairs for we were not so much our selves as to be able to stand all the while then there was it seems some Dispute between my Lord of Pembroke and me wherein my Lord did conceive I had done him some injury and threw a glass of Wine in my face Att. Gen. What kind of Discourse was that pray Sir Goring Truly may it please your Grace I cannot remember all the Discourse because I was so much in drink at that time they say it was about Families and Play I cannot positively say what it was but after my Lord of Pembroke rose up to draw his Sword and I laid my hand on mine Att. Gen. Well Sir and what followed then Goring Captain Savage stept in between my Lord and me and the Drawer came bustling about and took me and shoved me out of the room while I was thrusting out I heard a noise behind me and I see my Lord make somewhat towards Mr. Cony but more I cannot say what was done because Mr. Savage was between my Lord and me When I was out of the room I found my Sword gone and my Hat and Perriwig I then made a noise at the door and would not go away till I had recovered my things the Man of the House who was in bed it seems for he was then undrest and in his night-Gown came and asked me what was the matter I told him I had been in that room with my Lord of Pembroke where I had received some ill usage and had lost my Hat and Perriwig and they had broken a piece of my Sword and taken it from me which I desired to have again and said I Mr. Cony I doubt is in danger for there is quarrelling within and I desired to come in to see what they did with him Att. Gen. Well Sir when you came in what then Goring Upon this the Master of the House did desire me to go into a room and a Gentle woman his Sister as I after understood did also press me to go into another room and promised they would bring Mr. Cony to me upon which I went into a room there by but it was something long before I heard from them and being under some impatience they at last came and told me Now Sir you may go in if you please when I came in I found a Gentleman lying along upon the Chairs and no body else in the room I began to be suspicious for I was then as I thought somewhat soberer that he had some Wound and took the Candle and walked about him and would fain have awakened him but could not by all my endeavours the Drawer told me he was only dead-drunk and would in a little time come to himself upon which I desired them to lay some Blankets upon him and some Pillows under him and set some more Chairs to make the place broader that he might not fall down and I ordered the Drawer to be sure to watch with him till he awaked and make a good fire which he promised to do The next day Mr. Cony sent to my Lodging to come and see him but I did not that day because I did go out early and did not return till late but the very next day after being Tuesday when I came to him Harry said he I was very much abused the other night in my Lord's company I am sorry for that said I with all my heart and I asked him how he came to be abused My Lord of Pembroke said he threw me down and there some body trod upon me and kicked me and he shall know that he has abused me and that I expect satisfaction for it I hope you will let him know so much and carry him a Challenge from me Mr. Cony said I who did tread upon you I know not said he for I was in a swound either my Lord of Pembroke or some of his Creatures for him I never had the honour to know my Lord of Pembroke before nor above one or two of the Gentlemen that were with him then in the company Att. Gen. Sir had you any discourse with him afterwards Goring Yes every day till Thursday at night Att. Gen. Did he complain of much pain Goring Yes constantly in his Belly his Sides and his Shoulders Att. Gen. What did he tell you was the cause of his death Goring He said it was my Lord of Pembroke that had done him the injury in throwing him down who trod on him or kicked him he could not tell but said my Lord should answer for it to him Att. Gen. Do you remember what part he complained of most Goring His Belly Att. Gen. And what else Goring I think his Side and Shoulders Att. Gen. What distance of time was it between your being thrust out of the Room and your coming in and finding him upon the Chairs Goring About half an hour L. H. St. Mr. Goring you say you saw no stroke given by my Lord of Pembroke to Mr. Cony Goring No truly may it please your Grace I saw my Lord make towards him but Mr. Savage was between my Lord and me and I was put out of the Room L. H. St. You did not hear Mr. Cony charge my Lord with kicking him or stamping on him Goring He did not in my hearing charge him with stamping on him but that he threw him down and that then some one did kick him Att. Gen. My Lords We have done with this Witness L. H. St. My Lord of Pembroke Will your Lordship please to ask that Witness that spoke last any Questions for now is your time E. of P. No my Lord. Att. Gen. Then we desire Mr. Savage may be examined Mr. Savage pray do acquaint his Grade and my Lords what you know of this Business Savage May it please your Grace I was in company with my Lord of Pembroke at Mr. Long 's House in the Hay-market when Mr. Cony came in and making a great noise at the Bar my Lord of Pembroke being in a lower Room looked out at the door and seeing
who it was my Lord saluted him very kindly and told him he was glad to see him and desired him to wall into his Room Mr. Cony told him he had a Friend at door and desired his Lordship to admit him which my Lord embraced very kindly and then Mr. Cony goes to the door and calls Mr. Goring desiring him to come in and they came together into the Room my Lord desired them to sit down and drink a Glass of Wine which they did and after some time falling into discourse Mr. Goring began to make use of some impertinent language to my Lord and amongst the rest told him he was as good or a better Gentleman then he was Att. Gen. Goring did Savage Yes Goring did upon which my Lord threw a Glass of Wine in his face and immediately stept back and drew his Sword Mr. Goring was going to draw but I came up to him and took his Sword from him and broke a piece of it and upon my perswasion my Lord put up his Sword again but for fear there might be more words I took Mr. Goring in my arms and shoved him out of the Room and whilst I was thrusting him out of doors I heard a noise of a Bustle behind me and leaving the Drawer to keep Mr. Goring out I saw my Lord of Pembroke strike Cony with his right hand who immediately fell down and then gave him a kick and so upon that finding him not stir I took Mr. Cony being on the ground I and my Lord together for I was not strong enough to do it my self and laid him on the Chairs and covered him up warm and so left him Att. Gen. You say my Lord struck him a blow Savage Yes he did strike him Att. Gen. On what part Savage I suppose on the face Att. Gen. You say Sir my Lord of Pembroke did kick him when he was upon the ground Savage Yes Att. Gen. Did he kick him once or oftner Savage But once that I saw Att. Gen. Pray Sir on what part was it Savage Some where on the Body but I cannot tell what part Att. Gen. With what force did his Leg move Savage Not with a very great force Att. Gen. How high was his Leg listed up Savage He pushed his Leg with a quick motion for words Att. Gen. When you took him up he was sensless you say pray Sir how long was it ere he was brought to life again Savage Two or three minutes Att. Gen. What means did you use to bring him to himself Savage We chased him over the Temples and such things Att. Gen. When he came to life again did he speak Savage He did open his Eyes but did not speak Att. Gen. What followed then Savage We laid him upon some Chairs gently for his Pulse was almost gone that we could feel Att. Gen. Did his Eyes continue open after he was revived Savage Not long for I asked him if he knew me he seemed to shake his head as if he did and then closed his Eyes again Att. Gen. Before that accident what condition was he in was he able to talk Savage He was very drunk but he did say something Att. Gen. What discourse had he before he was struck down Savage I cannot well remember but I think he proposed Play to my Lord. Att. Gen. Why did my Lord strike Cony Savage I cannot tell I was then putting Goring out of the Room and hearing the noise of my Lord's motion towards Cony I looked back and saw my Lord strike him Att. Gen. What language did he use to my Lord to provoke him to it Savage I cannot tell any at all Att. Gen. Did you see Mr. Cony after that time and what did he then say to you Savage I went two days afterwards to see Mr. Cony who told me he was then in a pretty good condition He asked me whether my Lord had struck him I told him yes Truly said he I did not know that my Lord had struck me but finding my self so much in pain I thought I had faln partly through my drink and partly through my Fits I used to have Att. Gen. We my Lord have now done with this Witness L. H. St. My Lord of Pembroke will you ask Mr. Savage any Questions E. of P. No my Lord. L. H. St. Mr. Savage I think you say you saw my Lord of Pembroke kick him once in your Judgment was that kick of such force as to give any great bruise Savage I did my Lord see him kick him once but not with any great force as I conceive L. H. St. You did not hear Mr. Cony complain my Lord had kick'd him Savage No for as I told your Lordship when I was to see him two days after he asked me the question and said he did not know it before L. H. St. Mr. Attorney pray on with your Witnesses Att. Gen. We shall next call Mr. John Shelly Mr. Shelly pray tell his Grace and my Lords your knowledge in this untoward accident Shelly May it please your Grace I was in the Room at Longs when Mr. Cony and Mr. Goring came in they were both very far in drink in so much that Goring could hardly stand but desired he might have leave to sit down which he had Mr. Goring in a little time proposeth Play to my Lord and my Lord told him he would throw with him for 500 l. and was sending away for the Money but then Mr. Goring would not Play I believe said my Lord to him you are an idle Fellow that you will propose these things and not pursue them Upon that Mr. Goring tells my Lord his name was a better name then his Lordships and he a better Gentleman then my Lord Then my Lord takes some Wine and threw in his face hereupon Mr. Goring steps back and drew his Sword and my Lord did the same Captain Savage steps in between them and keeps my Lord while Goring was put out of the Room my Lord then desired Mr. Cony to go out with his Friend Said he I do not know upon what account my Friend is sent out whereupon my Lord hit Cony a box on the Ear and that threw him down Att. Gen. Pray Sir before my Lord struck him did not Cony give my Lord some ill language Shelly He only said as I told you before I know not upon what account my Friend is turned out of doors Att. Gen. Did you see my Lord strike him Shelly Yes Att. Gen. Whereabouts Shelly On the head with his Fist or his Hand Att. Gen. Did he fall at the first blow Shelly Yes Att. Gen. Did he afterwards say any thing Shelly No. Att. Gen. Did you see my Lord kick him Shelly No. Att. Gen. Did you see my Lord hold up his foot to do it Shelly Yes Att. Gen. How high Shelly A pretty height Att. Gen. Pray what became of the Gentleman afterwards Shelly They took him up in their arms and laid him upon some Chairs Att. Gen.
see him I told him of the common report of his being kickt he seemed displeased that such a thing should be reported and throwing down the Bed-cloaths shewed me his Belly but I could not see any blemish upon it then either by discolouring or bruising I found him indeed very backward in receiving Remedies but left him then in a hopeful way of recovery but saw him not after because being sick my self I could not attend him Att. Gen. Did he complain of any Hurt about him then Bruce Only in his Belly Att. Gen. Did you then see his Belly Bruce Yes Sir for he threw away the Cloaths Att. Gen. Did you see upon his Breast or any where else Bruce He did not complain of any Ail there and so I lookt not for any thing Att. Gen. What did he complain of when you came first to him Bruce Only his Shoulders Att. Gen. And after his Belly Bruce Yes L. H. St. Hark you Doctor what day was that you came to look on his Belly whether he had any Bruises or no Bruce Wednesday morning my Lord. L. H. St. And then you say upon your Oath you saw there no swelling or discolouring Bruce None at all my Lord I gave it in upon my Oath before the Coroner and the same I say now At. Gen. We have done with the Doctor my Lord. L. H. St. My Lord of Pembroke will your Lordship examine him to any thing E. of P. No my Lord. At. Gen. Then there is Mr. Hemes pray Sir acquaint my Lords what you know of this Gentleman Mr. Cony and first pray you tell his Grace when you came to him first Hemes It was on Monday morning after this Accident about eight of the Clock At. Gen. Did he send for you Hemes Yes Sir At. Gen. How did you find him when you came Hemes In great extremity of pain and very sore complaining of pains over all his Body especially on his Shoulders and Buttocks Then the Doctor who came in soon after did apply Plaisters to him and when he anointed him he was so sore that he could not endure any one to touch him nor could we tell how to turn him in his Bed or how to place him so as to apply the Ointment but were fain to get a Sheep-skin to wrap him in and by Pillows and a broad Joyn-stool raise him up by degrees I did then look upon his Body but saw no swelling or bruise there L. H. St. Did you see his Belly Hemes No my Lord but he did complain of an inward grief there At. Gen. When did he first complain of that Hemes The first morning when I came At. Gen. What words did he then use tell the very words he used if you can remember them Hemes No Sir I cannot but he complained of a great soreness in his Belly and an inward soreness At. Gen. Where in what part of his Body Hemes In his Belly I say At. Gen. Well now go on how long did you continue with him how many days did you come to him Hemes I came to him every day all along At. Gen. Were you with him till the day he died Hemes Yes there was indeed a new Physician sent for but I saw him all along usually once a day At. Gen. Did he complain more then once of his Belly Hemes Yes all along from the first morning L. H. St. Did you see him opened after he was dead Hemes Yes my Lord. L. H. St. What can you say as to what you saw on him then Hemes When he was opened in the lower part of his Belly there was a great deal of Bloud gathered together on both the Hypocondria's which is not usual I cannot tell the meaning of it the Physician knows that best Att. Gen. Was it congealed black Blood Hemes It was of an ugly colour Att. Gen. What colour Hemes Of a blackish livid colour Att. Gen. Have you observed it often so in others Have you used to see People opened at other times Hemes No indeed not I but very seldom Att. Gen. Well then stand down you for we have done with you L. H. St. My Lord of Pembroke have you any thing to say to him E. of P. No my Lord. L. H. St. Then call your next Witness Att. Gen. That is Mr. Jackson Pray you Sir tell my Lords what you know of this Business When were you sent for to Mr. Cony Jackson On Wednesday Att. Gen. What Acquaintance had you with him Jackson I had a very particular Acquaintance with him and I lookt upon him as a person of a strong healthy Constitution and not subject to any dangerous Distemper my Acquaintance with him was of twelve years standing and therefore I must needs know him pretty well Upon the Wednesday after this Accident hearing he was very weak I went to visit him and when I came he told me he had been troubled with very unusual Swounding and then fell into one of them but with some Cordials we revived him again when we thought all of us he had been dead The Friday and Saturday before he died I was with him all day he complained of great griefs in his Belly he said he had great torment there and believed he had received some ill usage lately which occasioned these pains Att. Gen. From whom had he received it Jackson He was very sparing in telling whom it came from Att. Gen. Who did he name Jackson He said he was a drinking with my Lord of Pembroke but he was in such pains that I could not ask him many Questions which he would answer Att. Gen. Where were his pains Jackson In his lower Belly and he had sometimes strange fainting Fits Att. Gen. When did he first complain of his Fits to you Jackson On the Wednesday Att. Gen. When did he die Jackson On Monday following Att. Gen. Did he complain on Saturday of his Belly Jackson Yes L. H. St. What Discourse had you further with him Jackson None but what I tell your Lordship that I can remember L. H. St. My Lord of Pembroke have you any thing to say to him E. of P. No my Lord. L. H. St. Who 's next then Mr. Attorney Att. Gen. Alice Avery my Lord who was his Nurse Were you attending upon Mr. Cony in the time of his Sickness Avery Yes I was Att. Gen. Pray tell my Lord your whole knowledge Avery When he came in on the Monday morning I found he was very ill and could not well stand Sir said I to him sure you are very much in Beer No said he I am very sore and full of pain Sir said I I believe you have been in some bad company Yes said he I have been in some company where I have received a great deal of wrong I am not able to go nor stand I have been beaten and kickt more than ordinary I was never so abused in all my life and upon his dying-Bed he wished to God he had never been in my Lord of Pembroke's company
for he did think in his conscience my Lord had been the death of him Att. Gen. Speak that again Avery He wished to God he had never been in my Lord of Pembroke's company for he did think in his conscience that he had been the death of him L. H. St. How long before he died was that Avery About two or three hours before he died Att. Gen. Did he continue sensible to the time that he died Avery Yes to the last minute Att. Gen. How often did he complain of his pain Avery All along from the time he came out of my Lord of Pembroke's company Att. Gen. What time did he come home Avery About seven or eight of the Clock on Monday morning Att. Gen. Where and what part did he complain of then Avery His Sides and all parts about him Att. Gen. How often did you discourse with him about his pain Avery Every day divers times from the time he came home till he died Att. Gen. And he spoke those words a little before he died Avery Yes and often complained of his being abused L. H. St. My Lord of Pembroke will you ask this Woman any Questions E. of P. No my Lord. L. H. St. Have you any more Witnesses Mr. Attorney Att. Gen. Now my Lord We shall call three more that had a view of the Body after his death upon the Coroner's Inquest who will give your Grace an Account what appearings of Murther were there visible and they are Richard Wheeler William Brown Thomas Roberts Cl. of Cr. Lay your hands on the Book The Evidence c. Att. Gen. Which is Mr. Brown Did you see the Body of Mr. Cony after he was dead Brown Yes my Lord I was one of the Coroner's Inquest which after view of the Body went into another House but some of us seeing the Body swelled at that rate as it was and being unsatisfied of the cause went back again to look upon it and there I saw upon his right Breast a great black Bruise and I looked upon the Cawl which was all wasted away and on his left Side again a great black Spot and in the bottom of his Belly a quantity of very ill-lookt Bloud Att. Gen. When was this you saw it what day how long after his death Brown The day after he died Att. Gen. Where did you observe any Hurt and Bruise upon him besides Brown As he lay before he was opened we saw him all over swelled at a prodigious rate and black and blue in divers places so that I was unsatisfied till I had seen the inward parts and therefore went up and saw what I said before L. H. St. Did you know the Gentleman before Brown No my Lord. L. H. St. My Lord of Pembroke do you desire to ask him any thing E. of P. No my Lord. L. H. St. Then go on Sir Att. Gen. Richard Wheeler pray tell my Lord what you know Wheeler My Lord I was summoned upon the Jury by the Coroner and according to my duty I made such an inspection as I could into the Body I did observe upon his right Breast a very black and great Bruise and on the left side of his Belly a very black and great Bruise which was indeed of an other-guise colour than that of settled Bloud for I have of my own knowledge had a sad experience of that kind Att. Gen. Did you know the Gentleman before Wheeler Yes I knew the Gentleman very well and I had not known him to be the same person then but by their description that were about him for all the parts of his Body were most violently swelled Att. Gen. Did you see the settled Bloud at the bottom of his Belly Wheeler Yes and as I was informed that was occasioned by his being forced to lie on his Back continually because his pain would not suffer him to move that on the Side and Ribs was a perfect Bruise Att. Gen. Where is Mr. Roberts did you see this Gentleman's Body after his death Roberts I saw the Body after it was opened and viewed the inward lower parts of the Belly where there was a quantity of Bloud gathered together Att. Gen. Was it more black in that part then in others Roberts It was black congealed Bloud Att. Gen. How broad were the spots Roberts About the breadth of my hand L. H. St. Mr. Roberts did you see the left side of the Belly bruised Roberts Yes my Lord and as I said in the lower inward parts black congealed Bloud L. H. St. Was there any swelling Roberts Yes my Lord very much L. H. St. The Doctor that was examined before said there was no swelling nor discolouring Att. Gen. He did so my Lord but this was several days after that L. H. St. My Lord of Pembroke will you examine these men E. of P. No my Lord. Att. Gen. My Lord we have but one Witness more for the King and that is Mr. Charles Cony who is Brother of the Gentleman that died who will give you an account what he said in his sickness and the Sayings of a dying man in such circumstances are remarkable Cl. of Cr. Charles Cony harken to your Oath The Evidence c. Att. Gen. Now Mr. Cony tell his Grace and my Lords the occasion of your Brother's sickness and death Cony May it please your Grace on Monday the 4th of February I was sent for by my Brother about nine of the Clock in the morning to come to speak with him but not believing his business to be urgent deferred my going the Messenger immediately comes back again and tells me my Brother was exceeding ill As soon as I came I found him almost dying his Eyes set and he extremely ill but we recovered him in a little time whilst he complained of great pain I examined what might be the cause and where he had been last night for I understood he came not home till morning and in what company And when I was told of my Lord of Pembroke's company who had struck him down with a box of the Ear both he and I quickly concluded how his ill came But to be satisfied he telling me he could not remember what he did we sent for the Drawer to know the truth of the matter but in the mean tiem to comfort him I told him I hoped it was only a fainting Fit which would be over again in a while The Drawer came and did assure me that my Lord did never strike him which upon assurance I did believe especially when he came again in tbe Afternoon and told me the same story All the while he was in the horridest pain that could be and could not be touched but was forced to lie upon his Back The Doctor told us for application to ease his pain the best thing to wrap him in was a whole Weathers Skin which we did at two of the Clock in the Afternoon by the help of a Chirurgeon raise him up and put on him On Tuesday
morning I sent to know how he did being necessitated to go another way he sent word back he was pretty well at ease and had rested pretty well On Wednesday he rose and sat up on Thursday he was so well that he would have some Friends to Dine with him in his Chamber on Friday he was a little ill again but on Saturday he was so well that he would have gone abroad and truly we did never I 'm sure I did not believe he would have died till about two hours before he died One day when Dr. Conquest came out of his Chamber he seem'd to be in a Huff and said he was only kept there to do the Drudgery and when I asked him what he thought of my Brother he answered me short I cannot tell whether it be a Pembroke kick or no. And when I upon the report of my Lord 's having abused him which yet upon the Drawer's answer I believed not spoke to him about it he would seem displeased any should mention it He once indeed told me he had something else to reveal to the Doctor but what it was I cannot tell Att. Gen. Did you apprehend him to be so ill as he was Cony No I never believed it till an hour before he died and this is all that I can say my Lord. L. H. St. Will you my Lord of Pembroke ask Mr. Cony any question E. of P. I desire your Grace to ask him what Chirurgeons they were that did view the Body after dead L. H. St. Mr. Cony come forward my Lord of Pembroke desires to know what Chirurgeons viewed the Body Cony Mr. Snell the Chirurgeon I think my Lord. E. of P. I desire your Grace he may be examined L. H. St. If the Kings Councel have done then your Lordship may examine whom you please what would your Lordship examine into E. of P. To give your Grace an account what might be the cause of the Bloud found in Mr. Cony's Body Att. Gen. Because we did omit to examine Jackson to that matter we desire for the King we may call him to that point now L. H. St. You should have examined all your Witnesses fully at first Att. Gen. We acknowledge it my Lord but since we did forget it we humbly crave leave to do it now L. H. St. Here is Mr. Jackson what do you ask him Att. Gen. Mr. Jackson Were you present at the opening of Mr. Cony's Body Jackson Yes Sir Att. Gen. What did you see there Jackson There was an extraordinary quantity of extravasated Bloud in the lower part of his Belly L. H. St. Extravasated Bloud Jackson Yes my Lord. Att. Gen. How might that come might it not proceed from a natural cause Jackson I believe it came from some Bruises given him and from some Violences that were done to him Att. Gen. In the Belly was it Jackson Yes in the Belly Att. Gen. You saw then Did you see any Swelling there Jackson Yes and the Diaphragma bruised c. Att. Gen. Now my Lord We have done with our Evidence for the King L. H. St. My Lord of Pembroke if your Lordship have any Witness to call or will say any thing for your self now is the time E. of P. I desire your Grace that Dr. Lower and Dr. Conquest and one Mr. Raven may be examined for me L. H. St. Call Dr. Lower Dr. Conquest and Mr. Raven Cl. of Cr. Here they are make room for them L. H. St. My Lord of Pembroke who will your Lordship begin with E. of P. Dr. Conquest my Lord. L. H. St. Doctor You are not upon your Oath but you must have a strict care what you say for there will be a good account to be taken of it at another place and it being a Testimony before a Court of Judicature the obligation upon you to speak the truth is as great as if you did swear Dr. Conquest The Account I now give my Lord is that Account which I gave upon my Oath before the Coroner L. H. St. You must give it again vivâ voce we must not read your Examination before the Court. Conquest The first occasional I had to see Mr. Cony as a Physician was about three months before this unhappy Accident he was then in a fainting Fit at the Rose-Tavern c. where I was sent for to him He had for half an hour lain quite dead as they thought but with their rubbing him and giving him some mull'd Sack he was come to himself just as I came but he had no Pulse and was relapsing into his Fit I gave him some Drops and Cordials and sent him home pretty well again We went from thence and the next morning his Man came to call me and told me his Master was dying which was as I take it the 6th of December last When I came thither I found his Man sitting by the fire and asking for his Master he told me he was asleep I was something vext at the Fellow for troubling of me so and while I was speaking to him Mr. Cony at last heard my voice and calling me to him desired me I would come again in the afternoon for he had a mind to rest this morning I came at One of the Clock again where I found him very ill and very melancholy he wept and sent his Man down stairs and when the Man was gone I asked him what was the occasion He told me he found so great an oppression at his Heart that he could hardly speak I desired he would take some advice and send for another Physician but he would have none else but would needs go abroad that afternoon I desired him all I could but not prevailing with him I gave him some Cordial Drops and desired him to return home betimes but he did not but as I heard drank very hard and returned not till very late In short in the space of two months I have been called out of my Bed above twenty times to give him advice and to recover him out of his Fits but he would take no advice do whatever I could After this was his meeting with my Lord of Pembroke which he thus gave me Relation of He told me he had been with Mr. Goring in the City that day drinking hard and when he came to Longs he was so extreamly drunk that he cannot remember any thing that was done there but finding himself much in pain the next day he was so ignorant of the Transactions there that he only thought he had bad several Falls off the Chairs near the fire he said indeed he afterwards sent to enquire what had passed in his company that night and he heard my Lord of Pembroke should give him a Box on the Ear but he remembred it not Two or three days after he sent for me and told me now he would take advice of me and enter into a course of Physick but knowing his condition to be so bad I would not venture upon it alone and desired
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