spec eis superius separatim impoit sint quiet Et eant quilibet eorum sit quiet eat inde sine die c. Et superinde statim separatim per Cur. hic quesit est de prefat Rico. French Rogero James Georgio Dockwra si quid pro se habeant vel dicere sciant vel aliquis eorum aliquid pro se habeat vel dicere sciat quare Cur. hic ad Judicium executionem de eis eorum quolibet super Veredicto pred quoad Homicidium felonicam Interfectionem prefat Rici Coote procedere non debet Qui separatim dicunt qd ipsi sunt Clerici Et quilibet eorum est Clericus Et separatim petunt Beneficium Clericale eis cuilibet eorum in hac parte allocari Et super hoc tradito eisdem Rico. French Rogero James Georgio Dockwra separatim per Cur. hic Libro iidem Ricus French Rogerus James Georgius Dockwra separatim legunt ut Clerici quilibet eorum legit ut Clericus Sed quia Cur. dci Dni Regis hic prefat Justic dci Dni Regis ult noiat de Judicio suo de super Premissis pred quoad Homicidium pred felonicam Interfectionem prefat Rici Coote reddend nondum advisantur Ideo dies inde dat est prefat Rico. French Rogero James Georgio Dockwra in statu quo nunc c. usque prox Gaote deliberationem dci Dni Regis de Newgate pred pro Com. Midd. pred tenend de Judicio suo de super Premssis illis audiend c. Eo qd prefat Justic dci Dni Regis ult noiat Cur. hic inde nondum c. Lord High Steward Is it your Lordships Pleasure that the Judges may be Covered Lords Ay Ay. Then the Judges put on their Caps Clerk of the Crown Serjeant at Arms make Proclamation Serjeant at Arms. O Yes O Yes O Yes Chief Governor of the Tower of Dondon bring forth the Body of Edward Earl of Warwick and Holland your Prisoner forthwith on Pain and Peril will fall thereon Then the Earl of Warwick was brought to the Bar by the Deputy Governor of the Tower of London having the Ax carried before him by the Gentleman Jaylor who stood with it at the Bar on the Right Hand of the Prisoner turning the Bdge from him The Prisoner at his Approach to the Bar making three Bows one to his Grace the Lord High Steward the other to the Peers on each Hand and his Grace and the Peers returned the Salute Lord High Steward My Lord of Warwick your Lordship is brought before this great Judicature in order to your Tryal You stand Indicted by the Grand Inquest for the County of Middlesex as Guilty of the Murder of one of the King's Subjects for whose Blood Justice requires a strict Inquisition should be made Your Lordship is call'd to Answer this Charge before the whole Body of the House of Peers Assembled in Parliament It is a great Misfortune to be Accused of so Hainous an Offence and it is an addition to that Misfortune to be brought to Answer as a Criminal before such an Assembly in Defence of Your Estate your Life and Honour But it ought to be a support to your Mind sufficient to keep you from sinking under the Weight of such an Accusation that you are to be Try'd before so Noble Discerning and Equal Judges that nothing but your own Guilt can hurt you No Evidence will be received but what is Warranted by Law No Weight will be laid upon the Evidence but what is agreeable to Justice No Advantage will be taken of your Lordship's little Experience in Proceedings of this Nature Nor will it turn to your Prejudice that you have not the assistance of Councel in your Defence as to the Fact which cannot be allowed by Law and their Lordships have already assigned you Councel if any Matters of Law should arise Your Lordship throughout your whole Tryal may assuredly promise your self to find all the Candor and Compassion which is consistent with Impartial Justice beyond that nothing is to be expected Their Lordships can never so far forget themselves as to depart from what is right and to draw the guilt of Blood upon their own Heads but if your Lordship is Innocent you are safe My Lord It will be requisite for you to recollect your self upon this Occasion in the best manner you can You ought to hear with Temper what the King's Councel have to say without interrupting them and to hearken Carefully to the Witnesses produced against you that you may be ready to cross Examine them if you find cause and to make your Observations upon the Evidence when the proper time comes for your Lordship to make your Defence of which I will not fail to give you Notice and when that time does come your Lordship may be assured your self and your Witnesses will be heard with great Patience and Attention and when my Lords have Heard and Considered the whole Matter the Judgment will unquestionably be according to the Rules of Justice and such as will become the Honour of this High Court. Read the Indictment to my Lord. Earl of Warwick My Lord I beg I may have the use of Pen Ink and Paper L. H. Steward Will your Lordships please to allow my Lord Warwick Pen Ink and Paper Lords Ay Ay. L. H. Steward Carry Pen Ink and Paper to my Lord which was done by the Clerk L. H. Steward My Lord your Lordship will do well to give Attention while the Indictment is Read to you Read it to my Lord in English Clerk of the Crown YOur Lordship Stands Indicted by the Name of Edward Earl of Warwick and Holland late of the Parish of St. Martin in the Fields in the County of Middlesex for that your Lordship together with Charles Lord Mohun Baron Mohun of Oakehampton in the County of Devon late of the Parish aforesaid in the County of Middlesex aforesaid Richard French late of the Parish aforesaid in the County of Middlesex aforesaid Gent. and George Dockwra late of the Parish aforesaid in the County of Middlesex aforesaid Gent. not having the Fear of God before your Eyes but being moved and seduced by the Instigation of the Devil the 30th day of October in the Tenth Year of the Reign of our Sovereign Lord William the Third by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. with Force and Arms c. at the Parish aforesaid in the County of Middlesex aforesaid in and upon one Richard Coote Esq in the Peace of God and of our said Sovereign Lord the King then and there being Felaniously Voluntarily and of your Malice afore-thought did make an Assault and that your Lordship the said Edward Earl of Warwick and Holland with a certain Sword made of Iron and Steel of the value of 5 s which you the said Edward Earl of Warwick and Holland in your Right
Hand then and there had and held drawn the aforesaid Richard Coote in and upon the left part of the Breast of him the said Richard Coote near the Collar Bone of him the said Richard Coote then and there Feloniously Voluntarily and of your Malice afore-thought did Strike Stab and Thrust in giving to the said Richard Coote then and there with the Sword drawn aforesaid in and upon the left part of the Breast of him the said Richard Coote near the Collar Bone of him the said Richard Coote one Mortal Wound of the breadth of half an Inch and of the depth of 5 Inches of which said Mortal Wound the aforesaid Richard Coote then and there instantly died And that the aforesaid Charles Lord Mohun Richard French Roger James and George Dockwra then and there Feloniously Voluntarily and of their Malice afore-thought were present aiding abetting comforting assisting and maintaining you the said Edward Earl of Warwick and Holland the said Richard Coote in manner and form aforesaid Feloniously Wilfully and of your Malice afore-thought to Kill and Murther and so you the said Edward Earl of Warwick and Holland and the said Charles Lord Mohun Richard French Roger James and George Dockwra the aforesaid Richard Coote in manner and form aforesaid Feloniously Voluntarily and of your Malice afore-thought did Kill and Murder against the Peace of our Sovereign Lord the King that now is His Crown and Dignity c. How say you Edward Earl of Warwick and Holland are you guilty of this Felony and Murther whereof you stand Indicted or not guilty Earl of Warwick Not Guilty Clerk of the Crown Culprit How will your Lordship be Tried Earl of Warwick By God and my Peers Clerk of the Crown God send your Lordship good Deliverance Then at the Motion of some Lords who sate towards the upper end of the House and by reason of the distance could not distinctly hear the Clerk the Indictment was Read again the Clerk standing near the upper end of the House Clerk of the Crown Serjeant at Arms make an O Yes Serjeant at Arms. O Yes O Yes O Yes If any one will give Evidence on behalf of our Sovereign Lord the King against Edward Earl of Warwick and Holland of the Felony and Murther whereof he stands Indicted let them come forth and they shall be heard for now he stands at the Bar upon his Deliverance L. H. St. Will your Lordships give me Leave to go down to the Woolpack that I may hear the better Lords Ay Ay. Then his Grace removed to the Woollpack and delivered the White Staff to be held by the Gentleman Vsher of the Black Rod who during the whole Tryal always received and delivered back the White Staff upon his Knees L. H. St. Mr. Attorney are you ready to proceed Mr. At. Gen. Yes my Lord. L. H. St. Then begin Sir Mr. Serj. Wright May it please your Lordships L. H. St. Pray Mr. Serjeant raise your Voice as much as possible you can that my Lords towards the upper end of the House may hear Mr. Serj. Wright May it please your Lordships this Noble Lord Edward Earl of Warwick and Holland the Prisoner at the Bar stands Indicted for the Felonious Killing and Murder of one Richard Coote Esq and the Indictment sets forth That upon the 30th day of October in the Tenth Year of His Majesty's Reign at the Parish of St. Martin in the Fields in the County of Middlesex the Prisoner at the Bar the Earl of Warwick together with Charles Lord Mohun Baron of Oakehampton Richard French Roger James and George Dockwra Gent. Feloniously Voluntarily and of their Malice afore-thought did make an Assault upon the said Richard Coote in the Indictment named and the Indictment chargeth that the Earl of Warwick at the same time and place with a Sword Feloniously Voluntarily and of his Malice afore-thought did give unto the said Richard Coote in or upon the left part of the Breast of him the said Richard Coote near his Collar Bone one Mortal Wound of the breadth of half an inch and of the depth of five Inches of which said Wound the said Richard Coote then and there instantly died And the Indictment further Charges that the said Charles Lord Mohun Richard French Roger James and George Dockwra the Earl of Warwick to commit the Felony and Murder aforesaid were then and there aiding assisting comforting and abetting and so the Jurors Charge That he the said Edward Earl of Warwick and Holland Charles Lord Mohun Richard French Roger James and George Dockwra the said Richard Coote Feloniously Voluntarily and of their Malice afore-thought at the Parish aforesaid in the County aforesaid did Kill and Murder against the Peace of our Sovereign Lord the King his Crown and Dignity To this Indictment this Noble Lord the Prisoner at the Bar Edward Earl of Warwick and Holland has Pleaded Not Guilty and for his Tryal hath put himself upon My Noble Lords his Peers here present We shall call our Evidence and if we prove this Fact for the King we do not doubt but your Lordships will give such Judgment for the same as shall be Just Mr. At. Gen. May it please your Lordships I am of Councel in this Cause for the King against this Noble Lord Edward Earl of Warwick and Holland The Prisoner at the Bar who stands Indicted by the Grand Jury of the County of Middlesex has been Arraigned and is now to be Tryed before your Lordships for the Felonious Killing and Murdering of Mr. Coote In the Indictment named the Evidence to make good this Charge against this Noble Lord it comes to my turn to open to your Lordships Mr. At. Gen. My Lords the Case as to the Fact according to my Instructions is this Upon Saturday the 29th of October last at night my Lord of Warwick my Lord Mohun Mr. French Mr. Dockwra and Mr. Coote the unfortunate Gentleman who was killed met together at one Lockett's who kept the Greyhound Tavern in the Strand and there they stayed till it was very late About 12 of the Clock at night or thereabouts a Messenger was sent by the Company to fetch another Gentleman Mr. James and Mr. James coming to them in what Condition your Lordships will be told by the Witnesses About One of the Clock in the Morning on Sunday the 30th of October they all came down out of the Room where they had been so late to the Bar of the House and there as the Witnesses will tell your Lordships Swords were drawn and Chairs were called for and Two Chairs which were nearest at hand came and Two of the Company went into those Chairs who they were and what past at that time the Witnesses will tell your Lordships Those that got into those Chairs came out again and more Chairs were called for But I must acquaint your Lordships that my Lord Mohun when the Two Gentlemen that went into the Chairs ordered the Chairmen to take them up and carry them
House of Lords Lords Ay Ay. L. H. St. This House is Adjourned to the House of Lordsâ— Then the Lords went in Procession in the same Order that they came into the Court. FINIS THE TRYAL OF Charles Lord Mohun Die Mercurii 29 Martii 1699. ABout One of the Clock the Lords came in the same Order as the day before to the Tryal of the Earl of Warwick into the Court erected in Westminster-Hall Clerk of the Crown Serjeant at Arms make Proclamation Serjeant at Arms. O Yes O Yes O Yes My Lord High Steward his Grace does Strictly Charge and Command all manner of Persons here present to keep Silence upon Pain of Imprisonment Serj. at Arms. O Yes O Yes O Yes All manner of Persons who are obliged to give their Attendance here this day before his Grace my Lord High Steward of England let them give their Attendance forthwith Cl. of the Crown Serjeant at Arms make Proclamation again Serj. at Arms. O Yes O Yes O Yes His Grace my Lord High Steward of England does Straitly Charge and Command all manner of Persons here present to be Uncovered Cl. of the Crown Serjeant at Arms make Proclamation again Serj. at Arms. O Yes O Yes O Yes Chief Governor of the Tower of London bring forth the Body of your Prisoner Charles Lord Mohun forthwith upon Pain and Peril will fall thereon Then my Lord Mohun was brought to the Bar. Lord High Steward My Lord Mohun your Lordship is now brought upon your Tryal for the Murder of Mr. Coot for which you stand Indicted by the Grand Jury for the County of Middlesex The King who knows that Justice is one of the Pillars which supports a Throne will have a strict Account taken of the Blood of any of his Subjects without Respect to the Quality of the Slain or of the Person who stands Charged with his Death There is not one of the Noble Peers here present who are to be your Tryers but does heartily wish your Lordship Innocent But on the other side if you should appear to be Guilty upon the Evidence you ought not to hope that any Consideration of Relation Friendship or Pity will prevail against Justice And therefore since in your present Condition every thing that is valuable in this World is at stake it will be highly necessary for your Lordship to recollect your self and to have your best Thoughts about you Facts of this Nature are frequently attended with such unhappy Circumstances that a Noble Person may be justly covered with Shame to have Faults and Weaknesses exposed to such an Assembly as this altho he be not Conscious to himself of the Guilt of Blood But your Lordship ought not to be so far discomposed with any Thoughts of this Kind as to neglect your Defence against this heavy Accusation of Murder In order to this it is necessary for your Lordship to hear with Temper what will be said against you and by no Means to Interrupt the Councel or Witnesses I will take Care to give your Lordship notice when the proper time comes for you to make your Observations upon the Evidence to Examine your Witnesses and to say what you think proper for your own Defence And when my Lords have heard and fully and maturely Considered the whole Matter their Lordships will give such a Judgment as the Law and Justice require L. H. St. Read the Indictment to my Lord. Clerk of the Crown CHarles Lord Mohun your Lordship Stands Indicted in the County of Middlesex by the Name of Charles Lord Mohun of Oakehampton in the County of Devon late of the Parish of St. Martin in the Fields in the County of Middlesex together with Edward Earl of Warwick and Holland late of the same Parish and County Richard French late of the same Parish and County Gent. Roger James late of the same Parish and County Gent. and George Dockwra late of the same Parish and County Gent. not having the Fear of God before your Eyes but being moved and seduced by the Instigation of the Devil the 30th day of October in the Tenth Year of the Reign of our Soverein Lord that now is William the Third by the Grace of God of England Scotland France and Ireland King Defender of the Faith c. with Force and Arms c. at the Parish aforesaid in the County of Middlesex aforesaid in and upon one Richard Coote Esq in the Peace of God and of our said Sovereign Lord the King that now is then and there being Feloniously Wilfully and of your Malice afore-thought did make an Assault and that the aforesaid Edward Earl of Warwick and Holland with a certain Sword made of Iron and Steel of the value of 5 s which he the said Edward Earl of Warwick and Holland in his Right Hand then and there had and held drawn the aforesaid Richard Coote in and upon the left part of the Breast of him the said Richard Coote near the Collar Bone of him the said Richad Coote then and there Feloniously Voluntarily and of his Malice afore-thought did Strike Stab and Thrust in giving to the said Richard Coote then and there with the drawn Sword aforesaid in and upon the left part of the Breast of him the said Richard Coote near the Collar Bone of him the said Richard Coote one Mortal Wound of the breadth of half an Inch and of the depth of 5 Inches of which said Mortal Wound he the aforesaid Richard Coote then and there instantly died And that you the said Lord Mohun together with the said Richard French Roger James and George Dockwra then and there Feloniously Wilfully and of your Malice afore-thought were present aiding abetting comforting assisting and maintaining the said Edward Earl of Warwick and Holland the said Richard Coote in manner and form aforesaid Feloniously Wilfully and of his Malice afore-thought to Kill and Murder and so the said Edward Earl of Warwick and Holland and you the said Charles Lord Mohun Richard French Roger James and George Dockwra the aforesaid Richard Coote in manner and form aforesaid Feloniously Wilfully and of your Malice afore-thought did Kill and Murder against the Peace of our Sovereign Lord the King that now is His Crown and Dignity How say you Charles Lord Mohun are you Guilty of this Felony and Murder whereof you stand Indicted or Not Guilty Lord Mohun Not Guilty Cl. of the Crown Culprit How will you be Tryed L. Mohun By God and my Peers Cl. of the Crown God send your Lordship good Deliverance Cl. of the Crown Serjeant at Arms make Proclamation Serj. at Arms. O Yes O Yes O Yes All manner of Persons that will give Evidence on behalf of our Sovereign Lord the King against Charles Lord Mohun the Prisoner at the Bar let them come forth and give their Evidence for now he stands at the Bar for his Deliverance L. Mohun My Lords I desire I may have the Benefit of Pen Ink and Paper L. H. St. Your Lordships are
from thenceforth the Statute frees him from all further Punishment But he saith that where he is not Liable to Burning he shall have the same Benefit immediately upon the Allowance of Clergy only So it was in the Case before him which was that of a Clerk in Orders for Searl was a Clergyman Parson of Heydon German in Essex and Convicted of Manslaughter So it is he says in Case where the King pardons the Burning And the last Words in the Case clearly shew his meaning viz. where the Statute says After Burning it Imports where Burning ought to be c. To me the Law is evident A Peer shall have this Benefit without either Clergy or Burning A Clerk in Orders upon Clergy alone without Burning A Lay-Clerk not without Both. As I Remember there hath been but one Authority more mentioned and that is of my L. C. J. Hale in his Summary of the Pleas of the Crown I have Got hither that Book Also To my understanding He plainly Declares the same Opinion and Cites the before-mentioned Case of Searl for Proof of it His Words so far as they Relate to this matter are These What the effect of Clergy allowed In Ancient time the Consequent was Delivery to the Ordinary either to make Purgation or Absque Purgatione as the Case Required But by Stat. 18 El. C. 7. Now only Burnt in the Hand which hath these effects 1. It enables the Judges to Deliver him out of Prison 2. It Gives him a Capacity to Purchase Goods Foxley's Case 5 Rep. and Retain the Profits of his Lands 3. It Restores him to his Credit Hob. Seales Case The Word which used Here whatever else it Do or Do not Refer to doth containly Refer to the next Antecedent that is Burning in the Hand and the Two Books which this most Learned Judge Cites are full Authorities that 't is This Burning which enables the Court to Deliver him and that That Delivering which is then Due to him is by good Construction in lieu of a Pardon which Restores him to his said Capacity and Credit To Conclude The Candition Precedent upon which the Restitution of this Person 's Credit Depends is not Performed by his undergoing the said Punishment nor Discharged by the Kings Pardoning it and therefore he is not a Legal Witness E. of Rochest If the rest of my Lords the Judges be of the same Opinion so and I hope you will not oblige them to deliver their Opinions at large to take up your Lordships time with Arguments of any length for the Matter has been I think sufficiently debated Lâ— Ch. Baron My Lords I am of the same Opinion Mr. Justice Nevill And so am I. L. H. St. My Lord Warwick Have you any thing more to say to this Question E. of Warw. No my Lord. L. H. St. Then what is your Lordship's Pleasure Is this Man to be admitted a Witness or not Lords No no we think by Law he can't be a Witness L. H. St. My Lord Warwick my Lords are of Opinion That this Person cannot be admitted as a Witness for you E. of Warw. My Lords I submit to your Lordships Judgment in the Matter E. of Nottingh My Lords I am very glad your Lordships have had this Matter debated by the Councel that so it might be settled All my Lords the Judges that are here it seems are of Opinion that this Man can be no Witness and therefore his Testimony must be rejected But there is another Proposal that I have to make to your Lordships of a Point that I think ought to be considered of My Noble Lord at the Bar did suppose that he had proved before your Lordships that he went into the Field not to fight on the side of the Party that was killed but on the other side and indeed that he went not to fight but to prevent a Quarrel and thereupon he did start a Question Whether it should not be a Presumption in Point of Fact and Law that he being on the side of the Party that was killed should not be reputed Innocent of his Death Now I confess upon the starting of this Objection I doubted of it Whether if any one were present at the killing of a Man where several People were engaged in fighting on what side soever such a Person were either on the side of the Party that was killed or on the other side yet whatsoever Crimeâ— it was in those that killed him it was the same Crime in those that were present at the Action My Lord of Warwick did desire that his Councel might be heard upon that Point if there be any Question with your Lordships in that Case and my Lord desires his Councel may be heard to that Matter it may occasion a Matter of Debate which cannot be in this place openly but must be between your Lordships among your selves Indeed I think it reasonable that Councel should be heard upon the Case L. H. St. My Lords I think you are not arrived at that Question yet you are not to take for granted any part of the Fact but are to debate among your selves after the Proof is over what that Proof doe amount to E. of Roch. Indeed my Lords I hope you will not suppose any thing and so take it for granted that may occasion any Debate because that is not to be done here in this place but we must adjourn to another place for it The bare putting of a Case by a Prisoner at the Bar does not make that to be the Case truly in Point of Fact for as far as I heard and understood the Noble Lord's Proposal at the Bar what he desired to have his Councel heard to was That he being one of Six that went into the Field but going with a Design to part them and not with any intention to promote the Quarrel châ—â—ld not be in equal degree of Guilt with those that were on the other side who killeâ— the Party But now my Lords I take it it is far from being granted oâ— the other side that that is the State of the Fact nay my Lord himself owns that he was in the Field and that he was engaged in the Combat with Mr. James and then the Question must the that is to be debated Whether a Party that is concerned in a Quarrel where a Person is killed is in equal degree guilty with those that were on the other side against the Person that was killed And then the Question would be far different from what it would be otherwise and as his Lordship did propose it and if there be a Doubt in Matter of Fact That ought to be settled here in this place that afterwards it may be considered in another E. of Nottingh My Lords I cannot but agree with that Noble â—ord that the Matter of Fact ought to be settled and then if any Debate arises thereupon your Lordships are to return to your own House and there to debate what is your Judgment upon that
pleased to permit my Lord Mohun to have Pen Ink and Paper Lords Ay Ay. Pen Ink and Paper were carried to my Lord by one of the Clerks of the House Mr. Cooper May it please your Lordships my Lord Mohun the Prisoner at the Bar stands Indicted by the Grand Jury of the County of Middlesex before Commissioners of Oyer and Terminer in that County and the Indictment sets forth That Edward Earl of Warwick and Holland Charles Lord Mohun Baron Mohun of Okehampton in the County of Devon Richard French Roger James and George Dockwra the 30th of October in the Tenth Year of His Majesty's Reign with Force and Arms at the Parish of St. Martin in the Fields in the County of Middlesex upon one Richard Coote Esq Feloniously Wilfully and of their Malice afore-thought did make an Assault and that the said Edward Earl of Warwick and Holland with a drawn Sword then in his Right Hand the said Richard Coote upon the left part of his Breast near the Collar Bone did Strike Stab and Thrust giving him thereby a Mortal Wound of the breadth of half an Inch and the depth of 5 Inches of which Wound he instantly died That my Lord Mohun Mr. French Mr. James and Mr. Dockwra Feloniously Wilfully and of their Malice afore-thought were present aiding and abetting my Lord of Warwick and Holland the said Richard Coote in manner aforesaid to Kill and Murder And then concludes so that the Earl of Warwick and Holland the said Lord Mohun Richard French Roger James and George Dockwra the said Richard Coote in manner and form aforesaid Feloniously Wilfully and of their Malice afore-thought did Kill and Murder against the Peace of the King his Crown and Dignity To this Indictment my Lord Mohun has pleaded Not Guilty and for his Tryal has put himself upon God and your Lordships his Peers We shall call our Witnesses and produce what Evidence we have to give to prove my Lord Mohun Guilty and so submit it to you Mr. Attor Gen. My Lords This Noble Lord my Lord Mohun the Prisoner at the Bar stands Indicted for the Death of Mr. Coote one of the King's Subjects as your Lordships have heard in the Case that was before you yesterday to which Indictment he had Pleaded Not Guilty and for his Tryal has put himself upon my Lords who are his Peers I shall very shortly open the Substance of the Evidence that we shall offer for the King against my Lord the Prisoner at the Bar We shall produce Evidence to prove That at the time laid in the Indictment the 29th of October at night and the next morning which was Sunday my Lord the Prisoner at the Bar and my Lord of Warwick who has been found Guilty of Manslaughter upon this Indictment before your Lordships and those other Persons that are named in the Indictment Capt. French Capt. James and Mr. Dockwra and the Gentleman that was kill'd happen'd to be at the Greyhound Tavern in the Strand which was then kept by Mr. Lockett and continued there a great part of the night indeed till the next morning about One or two of the Clock in the morning There was my Lord of Warwick my Lord Mohun Capt. French Capt. Coote and Mr. Dockwra but very late in the night the other Gentleman Mr. James was sent for A Messenger was sent particularly to have him come to them There they continued Drinking till about One or two of the Clock in the morning then Coaches were sent for then the Drawer of the House will acquaint your Lordships that he went for them and could not get any at that time being a very dark night and when there could be no Coaches had then there were Chairs called for and the Drawer went to call Chairs and as we shall make it appear to your Lordships when the Drawer came back there did appear to be a Quarrel among them for there was clashing of Swords and they seem'd to be divided into Two Parties on the one side were my Lord of Warwick my Lord Mohun the Prisoner at the Bar and Mr. Coote On the other side were Capt. French Capt. James and Mr. Dockwra and first there were two Chairs came to the Door into which Mr. French and Mr. Coote went and when they were in the Chairs my Lord Mohun came out and said he would kill any of the Chairmen that went away and so they put up again and the Gentlemen came out and came into the House but afterwards Mr. Coote went into the first Chair and my Lord of Warwick into the next and my Lord Mohun into the third and then they went away and the other Three Gentlemen went into the other three Chairs and followed them Your Lordships will hear whither they were all carried When they came to the End of St. Martins-Lane in the Strand my Lord Mohun would indeed have endeavoured to have perswaded Mr. Coote in particular to have gone home for that night and let the Business alone till another time but Mr. Coote would go on and while the 3 Chairs that carried my Lord of Warwick my Lord Mohun and Mr. Coote to St. Martins-Lane End which were the 3 first Chairs that went away from Lockett's the other 3 Chairs that went after them overtook them and then by Mr. Coote's Command the Chairmen that carried him went forward towards Leicester-fields and then this Noble Lord my Lord Mohun did say If you do go on I will go and see the End of it and ordered the Chairmen that carried him to go after those Chairs in which my Lord of Warwick and Mr. Coote went and accordingly they did go till they came to the hither end of the Square in Leicester-fields near Greenstreet End where my Lord Mohun got out of his Chair paid for all the 3 Chairs 3 s But we shall not be able to give to your Lordships an Account particularly as to my Lord Mohun what he did afterwards but we shall call our Witnesses to prove what we have opened and when our Witnesses are heard we shall leave the Matter to your Lordships Judgment Samuel Cawthorne which was the Drawer at the Tavern at Lockett's was Sworn and gave his Evidence to the same Effect that he did the day before Mr. At. Gen. Pray Will you acquaint my Lords who were at your House the 29th and 30th of October last Saturday night and Sunday morning Sam. Cawthorne There were my Lord of Warwick my Lord Mohun Capt. Coote Capt. French Mr. Dockwra and Mr. James Mr. At. Gen. How long did they continue there Cawthorne Till between One and two of the Clock in the Morning Mr. At. Gen. Pray Will you acquaint my Lords what happened at your Master's House at that time you remember what Evidence you gave yesterday Tell the whole Matter again because it relates to another Noble Lord that is now at the Bar. Cawthorne The Reckoning was call'd for about that time and I went up and took the Reckoning and all
D. of Ormond Not Guilty upon my Honour D. of Southampton Not Guilty upon my Honour D. of Richmond Not Guilty upon my Honour D. of Sommerset Not Guilty upon my Honour L. H. Steward My Lord Steward Is Charles Lord Mohun Guilty c. Lord Steward Not Guilty upon my Honour L. H. Steward My Lord President Is Charles Lord Mohun Guilty c. Lord President Not Guilty upon my Honour Then the Lord High Steward of England standing up uncovered putting his right Hand upon his Breast said my Lord Mohun is not Guilty upon my Honour Then the Lord High Steward seated himself again in the Chair to take the Number of the Peers who had given their Judgment L. H. St. My Lords Eighty Seven of your Lordships are present and you are all unanimously of Opinion That my Lord Mohun is Not Guilty of the Felony and Murther whereof he stands Indicted Lords Ay Ay. L. H. St. Let the Prisoner be call'd to the Baâ— Clerk of the Crown Serjeant at Arms make 〈…〉 Serjeant at Arms. O yes O yes O yes My 〈…〉 his Grace does straightly charge and command all manner 〈…〉 to keep Silence upon pain of Imprisonment Clerk of the Crown Serjeant at Arms make Proclamation Serjeant at Arms. O yes O yes O yes Chief Governour of the Tower â—â—â—don bring forth the Body of your Prisoner Charles Lord Moâ—â—â— Whom you committed to you in order to be brought hither this Day 〈◊〉 Pain and will fall thereon Then he was brought forth to the Bar and the Lord High Steward 〈◊〉 drest himself to him in this manner L. H. St. My Lord Mohun you have been Indicted fee the 〈◊〉 of Richard Coote upon which Indictment your Lordship has been 〈…〉 upon your Arraignment has pleaded Not Guilty and for your 〈…〉 put your self upon your Peers my Lords here present and they 〈…〉 Evidence and have consider'd of it and deliver'd their Judgâ—â—◠〈…〉 matter and I am to acquaint your Lordship they are all 〈…〉 â—â—â—nion That your Lordship is not Guilty of the Felony and 〈…〉 stand Indicted and therefore your Lordship is discharged 〈…〉 paying your Fees Then the Lord Mohun made his Reverence to the Lords 〈…〉 himself thus Lord Mohun My Lords I do not know which way to 〈…〉 Thankfulness and Acknowledgment of your Lordships great 〈…〉 to me but I crave leave to assure your Lordships That I will 〈…〉 it the Business of the future part of my Life so to behave my self in 〈…〉 â—â—â—â—sation in the World as to avoid all things that may bring me 〈…〉 Circumstances as may expose me to the giving your Lordships 〈…〉 this nature for the future And then making his Reverences to 〈…〉 away from the Bar. Clerk of the Crown Serjeant at Arms make Proclamation Serjeant at Arms. O yes O yes O yes All manner of Persâ—◠〈…〉 are commanded to keep Silence by my Lord High Steward of 〈…〉 Grace upon pain of Imprisonment L. H. St. My Lords The Tryal â—â—ing at an end 〈…〉 to be done here but the determining the Commission Lords Ay Ay. L. H. St. Sir Samuel Astry let Proclamation be made in order 〈…〉 the Commission of High Stewardship Clerk of the Crown Serjeant at Arms make Proclamation Serjeant at Arms. O yes O yes O yes My Lord High Steward 〈…〉 Grace does straightly charge and Command all manner of Person 〈…〉 and that have here attended to depart hence in the peace 〈…〉 and of â—â—veraign Lord the King for his Grace my Lord High Stewards of England 〈…〉 tends now to dissolve his Commission And then the White Staff being delivered to his Grace the Lord High 〈◊〉 〈…〉 he stood up and holding it in both his Hands 〈…〉 it in 〈◊〉 then leaving the Chair came down to the Wool pâ—ck and said 〈…〉 Lordships pleasure to adjourn to the House of 〈◊〉 Lords Ay Ay. L. H. St. This House is adjourned into the House 〈…〉 And so they went back in the same order that 〈…〉 and all the Assembly 〈…〉 FINIS
IN pursuance of an Order of the House of PEERS of the One and Thirtieth Day of March 1699 I do Appoint Jacob Tonson to Print the several Tryals of Edward Earl of Warwick and Holland and Charles Lord Mohun And do forbid any other Person to Print the same SOMMERS C. THE SEVERAL TRYALS OF EDWARD Earl of Warwick and Holland AND Charles Lord Mohun BEFORE THE House of PEERS in Parliament Upon the 28th and 29th Days of March 1699. For the Murder of Mr. Richard Coote The Right Honourable John Lord Sommers Baron of Evesham Lord High Chancellor of ENGLAND being LORD HIGH STEWARD upon that Occasion Publish'd by Command of the House of PEERS In the SAVOY Printed by Edward Jones for Jacob Tonson at Grays-Inn-Gate next Grays-Inn Lane MDCXCIX THE TRYAL OF EDWARD Earl of Warwick and Holland Die Martis 28 Martii 1699. ABout Eleven of the Clock the Lords came from their own House into the Court Erected in Westminster-Hall for the Tryals of Edward Earl of Warwick and Holland and Charles Lord Mohun in the Manner following The Lord High Steward's Gentlemen Attendants two and two The Clerks of the House of Lords with the Two Clerks of the Crown in the Courts of Chancery and Kings-Bench The Masters in Chancery two and two Then the Judges The Peers Eldest Sons and Peers Minors two and two Four Serjeants at Arms with their Maces two and two The Yeoman Usher of the House Then the Peers two and two beginning with the youngest Barons Then Four Serjeants at Arms with their Maces Then one of the Heralds attending in the Room of Garter who by reason of his Infirmity could not be present And the Gentleman Usher of the Black Rod carrying the White Staff before the Lord High Steward Then the Lord Chancellor Lord High Steward of England alone When the Lords were seated on their proper Benches and the Lord High Steward upon the Wooll-pack The Two Clerks of the Crown in the Courts of Chancery and Kings-Bench standing before the Clerks Table with their Faces towards the State The Clerk of the Crown in Chancery having His Majesty's Commission to the Lord High Steward in his Hands made three Reverences towards the Lord High Steward and the Clerk of the Crown in Chancery on his Knees presented the Commission to the Lord High Steward who delivered it to the Clerk of the Crown in the Kings-Bench then likewise Kneeling before his Grace in order to be Opened and Read and then the Two Clerks of the Crown making three Reverences went down to the Table and the Clerk of the Crown in the Court of Kings-Bench Commanded the Serjeant at Arms to make Proclamation of Silence which he did in this manner Serjeant at Arms. O Yes O Yes O Yes My Lord High Steward his Grace does straitly Charge and Command all manner of Persons here present to keep Silence and hear the King's Majesty's Commission to His Grace my Lord High Steward of England directed openly Read upon pain of Imprisonment Then the Lord High Steward stood up and spoke to the Peers Lord High Steward Your Lordships will be pleased to Stand up and be Uncovered while the King's Commission is Reading All the Peers Stood up and were Uncovered while the Commission was Read Clerk of the Crown GVlielmus Tertius Dei Gratia Angl. Scoc. Franc. Hibern Rex Fidei Defensor c. Praedilecto fideli Consiliar nostro Johanni Domino Somers Cancellar nostro Angl. Sciatis quod Cum Edrus Comes Warwic Holland nuper de Paroch Sci. Martini in Campis in Com. Middlesex Carolus Dominus Mohun nuper de Paroch praedict in Com. praedict coram dilectis fidelib nostris Carolo Lee Milit. Samuel Buck Willielmo Withers Francisco Tysson Armigeris aliis sociis suis Justiciar nostris ad inquirend per Sacramentum probor legalium hominum de Com. nostro Middlesex praedict ac aliis viis modis mediis quibus melius sciverint aut poterint tam infra libertat quam extra per quos rei veritas melius sciripoterit inquiri de quibuscunque proditionibus Misprisionibus prodition Insurrectionib Rebellionib Controfact tonsur lotur. falsis fabricationib aliis falsitat Monet hujus Regni nostri Angl. alior Regnor sive Dominior quorum cunque ac de quibuscunque Murdris Feloniis Homicid Interfectionibus Burglar Raptib Mulier Congregationib Conventicul illicit verbor prolationib Coadunationib Misprisionib Confederationibus falsis Alleganciis Transgressionibus Riotis Routis Retentionib Escapiis Contempt Falsitat Negligentiis Concelament Manutenent Oppressionibus Cambiparciis Deceptionib aliis Malefactis Offenc Injur quibuscunque Necnon Accessar eorundem infra Com. praedict tam infra libertat quam extra per quoscunque qualitercunque habit fact perpetrat sive commis per quos vel per quem cui vel quibus quando qualiter quomodo de aliis Articul Circumstanc praemiss seu eor alicujus vel aliquor qualitercunque concernen plenius veritat ad easdem proditiones al. praemiss audiend terminand secundum legem consuetud Regni nostri Angl. nuper assignat de Felonia Murdro per ipsos Edrum Comitem Warwic Holland Carolum Dominum Mohun Commiss Perpetrat per sacrament probor legal hominum Com. nostri Middlesex praedict Indictat Existunt Nos considerantes quod Justitia est virtus excellens altissimo complacens Volentesque quod praedict Edrus Comes Warwic Holland Carolus Dominus Mohun de pro Felonia Murdro unde ipsi ut praefertur Indictat existunt coram Nob. in presenti Parliament nostro secundum Leg. consuetud Regni nostri Angl. Audiantur Examinantur sententientur Adjudicentur Caeteraque omnia quae in hac parte pertinent debo modo exerceantur exequantur Ac pro eo quod Officium Seneschalli Angl. cujus praesentia in hac parte requiritur ut Accepimus jam vacat Nos de Fidelitate Prudentia provida Circumspectione Industria vestris plurimum confidentes Ordinavimus Constituimus vos ex hac causa Seneschallum Angl. ad Officium illud cum omnibus eidem Officio in hac parte debit pertinen hac vice gerend occupand exercend Et ideo vob Mandamus quod circa praemiss diligenter intendatis ea omnia quae in hac parte ad Officium Seneschal Angl. pertinent requiruntur hac vice faciatis exerceatis exequamini cum effectu In Cujus rei Testimonium has literas nostras fieri fecimus Patentes Teste meipso apud Westmonasterium vicesimo quinto die Martii Anno Regni nostri Vndecimo Per Ipsum Regem propria Manu Signat Serjeant at Arms. God Save the King Then the Herald and the Gentleman Usher of the Black Rod after three Reverences Kneeling presented the White Staff to his Grace and his Grace removed from the Woollpack to the Chair which was placed upon an Ascent just before the uppermost Step of
away spoke to them to stop and go no further for there should be no Quarrelling that night and that he would send for the Guards and secure them and after this they came out of the Chairs again It will appear there were Swords drawn amongst all of them and some Wounds given More Chairs being called for and brought this Noble Lord that is here at the Bar my Lord of Warnick my Lord Mohun and the other Four Gentlemen went all into the Chairs and gave the Chairmen Directions whither they should carry them at leastwise the foremost had Directions given them and the rest were to follow them it was a very dark night but at last they came all to Leicester Square and they were set down a little on this side the Rails of the Square and when the Chairmen had set them down they went away but immediately some of them heard my Lord of Warwick calling for a Chair again who came towards the Rails and there they found Two of the Gentlemen that had been carried in some of the other Chairs holding up Mr. Coote between them and would have had the Chairmen carried him away to a Chirurgeon's but they found he was dying and so would not meddle with him afterwards my Lord of Warwick and Mr. French were carried by Two of the Chairs to Mr. Annys the Chirurgeon at the Balneo in Long-acre where Mr. French being wounded was taken care of particularly by the Recommendation of my Lord of Warwick and the Master of the House was called up it being very late Mr. Coote's Sword was brought to that place but by whom it was brought we cannot exactly say while my Lord of Warwick and Capt. French were there and my Lord of Warwick had given Orders for the Denying of himself and forbid the opening of the Door There came the other Two Gentlemen Mr. James and Mr. Dockwra and upon their Knocking at the Door they were let in by my Lords Order after he had discovered who they were looking through the Wicket Mr. James had his Sword drawn but it was broken My Lord of Warwick's Hand was slightly wounded and his Sword bloody up to the Hilt when he came in as will be proved by the Testimony of the Servants in the House There was a Discourse between my Lord Mr. James and Mr. Dockwra about going into the Country but before they went the Swords were all called for to be brought to them and upon inquiry there was no Blood found upon Mr. Frenche's Sword but a great deal upon my Lord of Warwick's of which great notice was taken at that time Mr. Coote who was killed had received one Wound in the left side of his Breast half an Inch wide and five deep near the Collar Bone he had likewise another Wound upon the left side of his Body both which your Lordships will hear in the Judgment of the Surgeon Mortal Wounds and the Evidence will declare the Nature of them My Lords The Evidence does chiefly consist of and depend on Circumstances the Fact being done in the Night and none but the Parties concerned being present at it we shall lay the Evidence before your Lordships as it is for your Judgment and call what Witnesses we have on the behalf of the King against this Noble Peer the Prisoner at the Bar and take up your Lordships time no further in opening and we shall begin with Samuel Cawthorne he is a Drawer at the Tavern where those Lords and Gentlemen were together and he 'll give you an account of the time they came there how long they staid what happened in the House during their being there and what time they went away L. H. St. Give him his Oath Which the Clerk did Mr. At. Gen. My Lords I doubt the Witness is so far off that it will be difficult for him to hear the Questions that we are to ask him unless we could have him nearer to us L. H. St. Mr. Attorney My Lords seem to be of Opinion that it will be more for your advantage and theirs that the Witnesses stand at the distance they do which will oblige you to raise your Voice so loud that they may hear the Witnesses and you too Mr. At. Gen. Is your Name Samuel Cawthorne Cawthorne Yes my Lord. Mr. At. Gen. Where do you live Cawthorne With Mr. Lockett at Charing-Cross Mr. At. Gen. Did you live with him at the Greyhound Tavern in the Strand the latter end of October last Cawthorne Yes I did Mr. At. Gen. Well pray will you acquaint my Lords with the time when my Lord of Warwick my Lord Mohun and Mr. Coote were at that House how long they stayed what happen'd while they were there and when they wont away Cawthorne It was Saturday Night the 29th of October last Mr. At. Gen. Pray tell my Lords the whole of your know ledge in the matter Cawthorne There came my Lord of Warwick my Lord Mohun Capt. Coote Capt. French and Capt. Dockwra the 29th of October last in the Evening to my Master's House at the Greyhound Tavern in the Strand Mr. At. Gen. How long were they there and what time of Night came they in Cawthorne About Eight a Clock at Night my Lord Warwick my Lord Mohun Capt. French and Capt. Coote came in Mr. At. Gen. What Day do you say it was Cawthorne Saturday the Nine and twentieth Day of October last Mr. At. Gen. How long did they continue there Cawthorne It was between One and Two the next Morning before they went away Mr. At. Gen. Was any body sent for to come to them there Cawthorne Yes Mr. James M. At. Gen. What time was that Cawthorne About Twelve of the Clock Mr. At. Gen. Did he stay with them till they went away Cawthorne Yes Mr. At. Gen. What did you observe past in the Company while they were there Cawthorne I did not observe any thing of quarrel nor so much as an angry word amongst them till they came down to the Barr and were going away when they came down to the Bar they order'd me to call them Chairs or Coaches and there were no Coaches to be had and so I went for Chairs and two Chairs came for the Porter that went to call the Coaches was a great while before he came back and as I said I going for Chairs there came two but that they said was not enough so more Chairs were called for and at length there were more Chairs gotten in the first three Chairs my Lord of Warwick my Lord Mohun and Capt. Coote went away in and my Lord of Warwick and my Lord Mohun bid the Chair-men carry them home Mr. At. Gen. Were there then any other Chairs at the Door Cawthorne There were two more Chairs at the Door and another was called for Mr. At. Gen. Did you hear any Directions given where they should carry them Cawthorne My Lord Warwick and my Lord Mohun bid them carry them home Mr. At. Gen. Did you hear my
my Lord of Warwick's Sword Did you take any notice of Mr. French's Sword Goodall No indeed I was busie about the Affairs of the House I did see my Lord of Warwick's Sword but that was by chance and it was bloody at the Hilt and upon the Blade but whether it were all over bloody indeed I cannot tell Mr. At. Gen. I desire to ask him Whether he can tell who brought in Mr. Coote's Sword thither Goodall Indeed I cannot L. H. St. Mr. Attorney General have you any more Questions to ask him Mr. At. Gen. No my Lord not I. L. H. St. My Lord Warwick Will you ask him any Questions E. of Warwick No my Lord. L. H. St. Mr. Attorney Who is your next Witness Mr. At. Gen. My Lord our next Witness is Mrs. A. Goodall this Man's Wife Who was Sworn L. H. St. What Questions do you ask this Gentlewoman Mr. At. Gen. I desire that she would acquaint your Lordships Whether she was at the Bagnio in Longacre when my Lord of Warwick and Capt. French came in A. Goodall I was there when my Lord of Warwick came in Mr. At. Gen. Was Capt. French with him A. Goodall Yes Capt. French was with him Mr. At. Gen. About what a Clock was it that they came there A. Goodall It was about Two a Clock as near as I can remember Mr. At. Gen. In what Condition were they when they came in pray A. Goodall Mr. French was very much wounded Mr. At. Gen. Pray How was my Lord of Warwick A. Goodall My Lord had his Sword in his Hand and it was very bloody both at the Hilt and upon the Blade Mr. At. Gen. Did you observe any Wound that my Lord had A. Goodall I think to the best of my remembrance my Lord had his Hand wrapped up in a Handkerchief which was bloody but I was busie up and down in the House and I cannot so well tell what Hand it was I was indeed up and down there while they were there Mr. At. Gen. Do you knovv of any Orders that vvere given by my Lord of Warwick to be Concealed vvhile he vvas there A. Goodall He did desire the Door might not be opened to any body that asked for him and that it might not be said that he was there and when the other Two Gentlemen came to the Door he went to the Door himself and when he saw who they were he ordered them to be let in Mr. At. Gen. What was the Occasion of his going to the Door himself A. Goodall There was a Knocking at the Door and he had a mind to know who it vvas and vvhen it did appear it vvas Mr. Jâ—mes and Mr. Dockwra he himself ordered them to be let in Mr. At. Gen. Hovv came the Door to be open to them A. Goodall Indeed I think he opened it himself Mr. At. Gen. Hovv long vvas that after he and Capt. French came in A. Goodall It vvas about half an hour Mr. At. Gen. When they first came in What posture vvere they in had they any Svvords in their Hands A. Goodall I did not positively take notice vvhether they had any Svvords in their Hands nor vvhat they had vvhen they came in Mr. At. Gen. What became of them afterwards A. Goodall My Lord Warwick Mr. James and Mr. Dockwra went away within a little while and my Lord of Warwick ordered particular Care to be taken of Mr. French as his Friend and he was put to Bed after his Wounds were Dressed but I cannot tell what afterwards became of my Lord Warwick and the other Gentlemen Mr. At. Gen. I think you were saying that my Lord of Warwick was wounded in the Hand Which Hand was it A. Goodall I cannot positively say whether it was the Right or the Left L. H. St. Will you who are of the King's Councel ask this Witness any further Questions Mr. At. Gen. No my Lord we shall ask her no other Questions E. of Warwick No my Lord nor I. Mr. At. Gen. Then our next Witness is Henry Amy who is a Surgeon and lives at the Bagnio in Longacre and he will give your Lordship an Account what passed within his Knowledge at this time within his House and who came thither Wounded and what particular Care was ordered to be taken of Mr. French and by whom Mr. Amy was Sworn Mr. At. Gen. I desire you will give an Account to my Lords what happened at your House early in the morning the 30th of October last Amy. The 30th of October last about Two of the Clock I was knock't up out of my Bed to Attend two Gentlemen my Lord Warwick and Capt. French who came then into my House Mr. At. Gen. In what Condition were they Amy. They were both Wounded Mr. French very much and my Lord of Warwick in his Hand Mr. At. Gen. Did you see any Swords Amy. Yes they had both Swords in their Hands and my Lord of Warwick's Sword was very bloody Mr. At. Gen. Well Sir when they came into your House What Directions was given by my Lord Warwick Amy. He gave Directions if any body should ask for him they should say he was not there Mr. At. Gen. Did any body come and ask for him Amy. While we were taking Care of Mr. French and Dressing his Wound there were some Persons came and knocked at the Door and my Lord of Warwick did Order that no body should be let in but he himself went to the Door and when he found that it was Mr. Dockwra and Mr. James my Lord Warwick ordered that they should be let in Mr. At. Gen. Pray Tell my Lords what followed after that Amy. After we had Dressed Mr. French Mr. At. Gen. By the way Was there any particular Directions and by whom to take Care of Mr. French Amy. Yes my Lord Warwick desired me to take Care of him as his Particular Friend Mr. At. Gen. Well then after you had Dressed Mr. Frenche's Wound what happened Amy. I Dressed my Lord Warwick's Wound Mr. At. Gen. Pray Whereabouts was my Lord of Warwick's Wound Amy. It was near the first Joynt of his Fore-finger Mr. At. Gen. Pray How long did they stay there Amy. After Mr. Dockwra and Mr. James came in and my Lord's Hand was Dressed they stayed a little while and they Three went away Mr. At. Gen. What was said when they went away Amy. My Lord of Warwick desired to have great Care taken of Mr. French and they said Now let us go away and they went away Mr. At. Gen. Pray What time did they stay in your House Amy. When they went away I think it was about half an hour after they first came in Mr. At. Gen. Did you take notice of no Sword but my Lord of Warwick's Amy. No not then Mr. At. Gen. Did you afterwards Amy. Afterwards in the morning Mr. French called for his Sword and I looked upon it Mr. At. Gen. Pray in what Condition was his Sword was it bloody Amy. It
to form the Indictments and that the Jury may know with what sort of Weapon it was made and it is his Profession as a Chirurgeon to know such matters L. H. St. Mr. Salmon you hear what is required of you by my Noble Lords and the Observation which is made You are the Chirurgeon sent for by the Coroner on purpose to inspect this Body and when you did so it was incumbent upon you to consider and give information as well with what sort of Instrument the Wound was given as the length and depth of the Wound that the Jury might consider upon all the Circumstances of the Occasion and Manner of the Party's Death And my Lords would know whether by the Orifices of the Wounds when you inspected them you can make a Judgment if they were made by several Swords or the same Sword Salm. I cannot say that I saw any difference between the Orifices as to the nature of the Instrument they were given with nor whether they were made by one and the same Sword or no only the one Orifice was bigger than the other that of the Side was bigger than that at the Collar-bone L. H. St. Then so far we have light if I apprehend you rightly the Orifice of the upper Wound was not near so wide as that of the lower but it seems to be much in one of your Profession not to be able to judge whether the Wounds were given with the same sort of Sword when there was such a difference in the Orifice Salm. That below was a deeper Wound and there was a considerable difference between the largeness of the one and the other Ld. Audley My Lords I desire he may tell your Lordships how far backward the Wound in the Side lay Salm. It was directly on the left Side immediately under the two last Ribs and past through the Diaphragma M. of Normanby Pray my Lords let him point with his Finger whereabouts it was L. H. St. My Lords would have you show them with your Finger whereabouts it was Which he did E. of Warw. It is a very material Question for me that he should answer whether he did believe that one and the same Sword might not give both Wounds Salm. I cannot say any thing of it one way or other but one Wound went much further than the other because it was in a fleshy part and in such a case the further a Sword goes in it makes the Wound larger Mr. At. Gen. Then our next Witness is Stephen Turner who was Mr Coote's Man and he will give you an account what Sword his Master had and where he found it He was Sworn 〈◊〉 Sword was shewn him Turn This was my Master's Sword Mr. Coote's and I never saw it after he went out in the morning till I saw it in the hands of the Constable and afterwards before the Coroner Mr. At. Gen. What time did you hear of your Master's death Turn It was about nine a Clock next morning that I heard he was dead Mr. At. Gen. Where was your Master's Body Turn It was in St. Martins-Lane E. of Tanckerville I would desire he might be asked one Question whether his Master used his left Hand or his right Turn I do believe he was a right-handed Man I did never see him Fence It was on the Sonday morning that I went to the Round-house where I found my Master dead E. of Warw. I desire he may be asked whether he has not observed a particular Kindness and Friendship between his Master and me Turn Yes my Lord I have several times waited upon my Master when my Lord and he was together and they were always very civil and kind one to another and I never heard one Word of any Unkindness between them E. of Warw. Whether he knows of any Quarrel that was between us Turn No I never did E. of Warw. I desire he may be asked whether he did not use to lie at my Lodgings sometimes L. H. St. You hear my Lord's Question what say you did your Master use to lie at my Lord of Warwick's Lodgings at any time Turn Yes very often Mr. At. Gen. Pray call Pomfret again and let him see the Sword Then he came in and two Swords were shewn him Mr. At. Gen. I desire he may acquaint your Lordships what he knows of those two Swords Pomf. These two Swords were brought in by some of the Company that came to my Master's House and when they were shewn to Capt. French in the morning he owned this to be his and the other to be Mr. Coote's and he desired that notice might be taken that his Sword was dirty but not bloody and there was some Blood upon the other Mr. At. Gen. Who brought in Mr. Coote's Sword Pomf. Indeed I cannot tell Mr. At. Gen. Then our last piece of Evidence my Lord will be that of Mr. White the Coroner Who was Sworn L. H. St. What do you ask him Mr. Attorney Mr. At. Gen. From whom had he these Swords The Swords were shewn him White May it please your Grace these Swords were delivered to me by the Constable Mr. At. Gen. My Lord I desire he may be asked whether upon his view of the Body he looked upon the Wounds and whether he did apprehend they were given by one and the same Sword White May it please your Grace when I had Sworn my Inquest I sent for the Chirurgeon that was here before and gave him order to probe the Wounds that the Jury might know the nature of them in order to the drawing up the Inquisition and I did expresly ask him Whether he found any such distinction between them that they were given by one and the same Weapon or different Weapons He said as he says now That he could not tell whether the Wounds were given by two Swords or by one but he did apprehend there was a great difference between them and so did I but generally the Orifice of a Wound does close up when the Body is Gold one of the Wounds were nearer the left Side than the other to the best of my remembrance it was almost behind him Mr. At. Gen. We have done with our Evidence until we hear what my Lord of Warwick says to it L. H. St. My Lord Warwick will you ask this Witness any questions E. of War No my Lord. L. H. St. Make Proclamation for Silence Cl. of the Crown Serjeant at Arms make Proclamation Ser. at Arms. O yes O yes O yes His Grace my Lord High-Steward of England does Strictly Charge and Command all manner of Persons here present to keep Silence upon pain of Imprisonment L. H. St. My Lord of Warwick the Kings Councell have made an end of giving Evidence for the King now is the proper time for you to enter upon your Defence E. of Warw. May it please your Grace and you my Noble Lords my Peers I stand here before Your Lordships accused of the Murther of Mr. Coote of which I
much about the time of this Business Col. Stanhope About 8 or 10 Days before this unhappy Accident I went to wait upon my Lord of Warwick twice at his Lodgings once I found Captain Coote there one of them was in Bed and the other was Drossing of himself I thought they were very good Friends that were so Familiar and I had good reason to think so because of that familiarity both the times that I was there when I found them together was within eight Days before the Accident happened E. of Warw. The next Witness I shall call will be Mr. Disney Mr. At. Gen. But before Colonel Stanhope goes I desire to ask him this Question Whether he did never hear or know of any Unkindness between my Lord of Warwick and Captain Coote Col. Stanhope No indeed I did not I always thought them to be very good Friends L. H. St. Will your Lordship go on to your next Witness E. of Warw. Yes my Lord there he is Mr. Disney I desire he may be asked what he knows of any Expressions of Kindness and Friendship between me and Captain Coote Mr. Disney About the time that Captain Coote was to have his Commission in the Guards my Lord of Warwick received a Letter from him wherein he desired him to lend him the 100 Guineas according to his offer for he had but 300 by him and he said his Father was unkind to him and he could have no Money from him and he would be honest to him and pay it again as soon as he could my Lord sent for his Steward and ordered him to provide 100 Guineas for Captain Coote while I was there and all the times that ever I saw them together which was very frequent there was the greatest Kindness between them that could be and several times I have seen my Lord of Warwick pay Captain Coote's Reckoning for him and lent him Money when he wanted Money Mr. Att. Gen. I desire to ask you Sir this Question though you are not upon Oath yet you are obliged to speak the Truth in a Court of Justice as much as if you were upon Oath Did you not know or hear any thing of a Misunderstanding or Quarrel about the time that this business happened Mr. Disney No indeed I was with them together but the Day before and frequently and I heard nothing of any Unkindness between them in my Life nor never knew of any Quarrel between them or any reason for it L. H. St. My Lord who is it you call next E. of Warw. Colonel Whiteman Who stood up L. H. St. What do you call this Gentleman for E. of Warw. It is to the same Effect to acquaint your Lordships with what he knows of the Conversation between Captain Coote and me Col. Whiteman My Lord I know my Lord of Warwick and Captain Coote were constant Companions together they Dined together almost every Day for half a Years time almost and as to this time when this Business had happened I went to my Lord of Warwick being sent for by him and found him at a Private Lodging where he expressed a great deal of Concern for the Death of his dear Friend Mr. Coote and he shewed me the Wound he had received in his Hand and he desired he might be private and he told me he believed People would make worse of it then it was because he did not appear but he did but intend to keep himself out of the way till he could be Tryed and I took what care I could to get him a Convenience to go to France Mr. At. Gen. Pray what reason did he give for his going away Col. Whiteman The King being at that time out of England and so the Parliament not Sitting he said he did not love Confinement and had rather be in France till the Parliament should meet and he might have a fair Tryal which he thought he should best have in this House Mr. At. Gen. But pray Sir Consider You are bound to tell Truth and the whole Truth in such a Case as this Are you sure there was no Unkindness or Quarrell between my Lord Warwick and Captain Coote about this time Col. Whiteman Not I never knew of any Quarrel or â—â—â—â—dness between them in all my Life L. H. St. My Lord have you any more Witnesses E. of Warw. I have a great many Witnesses more to the same Purpose but I think I need not trouble your Lordship with them only I would call a Person that has been mentioned that is my Steward L. H. St. What is his Name E. of War Edmund Raymund Who stood up L. H. St. What Questions do you ask him E. of War I desire he may tell what he knows of any Friendship between Captain Coote and me and what particular Instances he can give of it Raymond My Lord I know that my Lord sent for me and said Captain Coote had occasion for 100 Guineas to pay for a Commission in the Guards which he had not Money to make up and I know that they were constant Companions every day did Eat together and often did Lye together and I did provide the 100 Guineas for him and I always did observe that there was a very Great Friendship between them E. of War My Lord the next Witness I shall call will be Mr. French who I hope having been Tried and had his Clergy allowed him will be a good Witness I should be sorry to Interpose any thing that would be a hindrance to your Lordships giving Judgment in this Cause presently he is able to give your Lordships an Account of the whole Matter and though I hope I have no need of calling him as a Witness yet I humbly offer it to your Lordships L. H. St. What say the Councel on the other side E. of War My Lord I do not insist upon it I think I have no need of it L. H. St. Your Lordship must judge for your self how far it is for your advantage to desire that this Matter should be Debated E. of War I do not desire to take up your Lordships time though I am very well advised that he is a good Witness in Law E. of Roch. I apprehended it the Duty of a King's Councel to make Objection against any Witness that should be produced by the Prisoner I am loath to give your Lordships any unnecessary Trouble yet I own that I am not satisfied that a Witness should be Offered and Rejected though the Objection be not made and argued by my Lord the Prisoner at the Bar If a Witness be offered and they think they have an Objection against him if they do insist upon it it will occasion a Debate and then we must Adjourn into the House of Lords L. H. S. It is not insisted upon by my Lord as I apprehend My Lord of Warwick Have you any other Witness you would have called E. of War I desire to ask Mrs. Amy a Question or two Then she stood up L.
H. St. What does your Lordship ask her E. of War What she remembers passed at her House about my Sword or any thing Mrs. Amy. My Lord when I came into the Room where my Lord of Warwick and Captain French were in our House I stood by Captain French while his Wounds was dressing and I saw my Lord of Warwick's Sword and looked upon it and the Hilt and all the Shell was full of Blood and it run down to the Bottom of the Sword Blade E. of War I desire she may be asked how soon that was after my coming in Mrs. Amy. It was in a quarter of an Hour after my Lord came in E. of War I desire she may speak what sort of Sword it was at the Hilt whether it were Open or Close Mrs. Amy. Indeed I cannot say but the Hilt was full of Blood the Shell of it and it run down to the Bottom of the Blade L. H. St. Has your Lordship done E. of Warwick My Lord I would only take notice that the Three Gentlemen that were on the other side were Tryed at the Old Bailey and found Guilty only of Man-slaughter but now I being on his side and not having any Malice to him but always a great deal of Friendship I submit it to your Lordships whether I can be thought any ways Guilty of his Death and I humbly hope your Lordships will hear my Councel if you make any Doubt of that L. H. St. What is it your Lordship would have Councel heard to E. of War To this Case my Lord Whether there being Six Persons Three of a side one is killed and I being Engaged on the side of him that was killed the Three of the other side have been Tryed for the death of that Man whether I who was of his side be equally Guilty with them who were on the other side especially I engaging particularly with another of the Three that were of the other side That Question I desire my Counsel may Argue whether I be equally Guilty with them that were on the other side and who notwithstanding Death hap'ned in the Case yet were found Guilty only of Man-slaughter L. Godolphin My Lords it has been moved by my Noble Lord at the Bar that his Counsel should be heard about Mr. French's being Witness whether he should be a Witness or no I think it would be much for the clearing of the Fact one way or other if the Evidence of that Witness could be heard but whether he can be heard or not according to Law is a Question that must be debated amongst your Lordships after your Lordships have heard the Councel on both sides and perhaps the Opinion of the Judges upon their Arguments and therefore I think we must Adjourn to Consider whether this Matter shall be Argued or no L. H. St. What say you to this Matter Mr. Attorney Mr. At. Gen. My Lords I should agree with the Motion that is made if there were any thing insisted upon by the Prisoner at the Bar that would bear a Question or Argument but my Lord of Warwick himself has waved the Objection and so I think there is no need for any Argument on our side L. Godol I would agree with the Motion that was made for Adjourning in order to Debate but I desire to be thus understood if he thinks it for his advantage that this Witness should be heard for him which he knows best whether it be or be not then I do suppose your Lordships will Adjourn to Consider of it in your own House amongst your selves it will not be proper to enter into the Debate here nor there neither till you know what Objection the Councel for the King make against this Man's being an Evidence and therefore we would know it is fit to be known whether my Lord 's waving or not insisting upon this Man's Testimony be free and voluntary and absolue or whether it be only in respect to the trouble it may put the House to for the Debate L. H. St. My Lord Warwick some of my Noble Lords observe you have desired Mr. French should be examined and that your Councel may be heard to that point Whether he be by Law a Witness or not several of my Lords think it reasonable Councel should be heard whether he be a Witness or not or at least that that Question should be consider'd amongst themselves if insisted upon therefore your Lordship is to Declare whether you do insist upon it or desire to wave it E. of Warw. I wholly submit my self to your Lordships but as I am advised by my Councel I hope he is a good Witness and I desire my Councel may be heard to that point Mr. At. Gen. My Lords in truth I acknowledge according to the method of Law the Objection ought to come of our side but I think we have very good reason to oppose that Gentleman being a Witness in this Case even upon that Objection which my Lord has made himself upon the Consideration that he has been found Guilty of Man-slaughter for the Death of this very Person It is true upon his Prayer Clergy was allowed him but the burning of the Hand was respited and he was not Burnt in the Hand and he is not Pardoned and how far he can be a Witness in this Case is the Objection If a Man Convicted of Felony that is within Clergy Prays his Clergy and it is allowed him but he is not Burnt in the Hand nor Pardoned we apprehend he is no Witness and that is the Objection we make against his Testimony to your Lordships L. H. St. My Lord Warwick you hear what is said by way of Objection against this Man's being a Witness What say you to it E. of Warwick For matter of Law my Lords I am not capable of speaking to it but I desire my Councel may L. H. St. That which Mr. Attorney proposes by way of Objection is Matter of Fact and the Matter of Law does not arise till the Fact be settled which must fall within your Lordships own Knowledge who produce him as a Witness and therefore you must Answer to that Fact your self E. of Warwick I desire to know of your Lordships if a Man be Convicted of Felony that is within Clergies and Prays his Clergie and it is allowed him but the Burning of the Hand is respited and there is a Warrant for his Pardon whether he cannot be a good Witness that his Clergie was allowed and the Burning of the Hand respited I have the Record here to shew L. H. St. My Lords my Noble Lord at the Bar insisting upon a Warrant for a Pardon I must acquaint you with something that has happened during your Lordships Sitting here this day Since I came hither a Privy Seal was delivered to me in order to pass a Pardon for the Burning in the Hand of Mr. French for the Man-slaughter for which he was Convicted at the Old Baily so far I can acquaint your
Lordships as to Matter of Fact E. of Warwick My Lord I am advised by my Councel that he is a good Witness without a Pardon or without Burning in the Hand L. H. St. What say you Mr. Attorney to the Law now you understand what the Fact truly is Mr. At. Gen. Yes my Lord and I do apprehend with submission to your Lordship's Judgment That a Man Convicted of Felony tho' he Prays his Clergie and has it allowed him but is not Burnt in the Hand nor has any Pardon can be no Witness L. H. St. That is the Case upon which you are to form your Objections Here is a Man produced as a Witness who has been Convicted of Felony within the Benefit of Clergie has craved his Clergie has had it allowed but has not been Burnt in the Hand nor Pardoned Mr. At. Gen. Then my Lords with Humble submission upon the Matter of Fact so stated I make this Objection That he is no Witness in point of Law He has been Convicted in one Respect for the very Offence for which the Noble Lord the Prisoner at the Bar stands Indicted tho' not in the same Degree as the Indictment sets it forth yet it is for the same Fact Upon this Indictment Mr. French was Indicted at the Sessions at the Old Baily and there he was found Guilty of Man-slaughter upon which he Prayed the Benefit of his Clergie which was allowed him but he was not Burnt in the Hand thus stands the Case in Fact Now my Lords the allowance of Clergie of it self does not discharge the Party from the Offence so far as to set him Rectus in Curia and make him in all Respects a Person fit to have the benefit and priviledges of a Probus Legalis Homo till he has past through those Methods of setting himself Right in the Eye of the Law that the Law hath prescribed and in order to set this matter in its true Light before your Lordships it will be necessary for me to open to your Lordships as far as I can the Nature of this Benefit of Clergie and what advantage did accrue to the Party by having that Benefit allowed him and likewise what Benefit he had by the Act that Enacted the Burning in the Hand which was the Statute of 4. Hen. 7. And by that Act the Burning in the Hand was to be of no more effect but only to shew that he had had his Clergy allowed him that unless he were within Orders he should have it no more than once Before that Act of Parliament a Person might have had the Benefit of Clergie several times but that Act limits it as to time that it shall be but once and therefore in order to the having of it known whether a Man once had his Clergie allowed him that did not produce his Orders that Act provides there shall be a mark set upon him at the time of the allowance of this Clergie as a Token that it was allowed him and he was never to have it allowed afterwards but even at that time he was to be delivered over to the Ordinary to make his Purgation but since that Act several Statutes have been made about this Matter I shall mention one that relates to your Lordships and that is the Statute of Edward the 6th which indeed does Enact That in Case where a Peer is Convicted of Felony within the Benefit of Clergie he shall be Discharged without being Burnt in the Hand but then and thus the Law stood till the Statute of 18 Eliz. Cap. 7. by which 't is Enacted That after the Burning in the Hand the Prisoner shall not be delivered to the Ordinary but he shall be discharged by virtue of which Act after Burning in the Hand the Prisoner hath made full Satisfaction to the Law without that sort of Purgation which was before requisite to be made but till he be Burnt in the Hand or has his Pardon he is not to be Discharged it may be he may be Bailed out by the Judge in order to get a Pardon but still he remains in statu quo as to his being a Witness or any thing of that nature his Credit is gone till it be restored by the King's Pardon or his undergoing the Punishment that the Law requires and no Man would say that where one lies under a Conviction of Felony undischarged by Burning in the Hand or Pardon that he can be a Witness he remains just as he was before the Conviction remains upon him which disabled him to be a Witness and that we submit to your Lordships as the Case of this Person Capt. French Mr. Sol. Gen. My Lords if your Lordships please to spare me one Word of the same side sure at Common Law there would be no difficulty at all that a Person Convicted of Felony within the benefit of Clergy unpardoned and undischarged could be no Witness and since those several Statutes that have been mentioned by Mr. Attorney unless there be an actual Burning in the Hand or a Pardon for that Burning in the Hand sure it cannot be pretended that one Convicted of Felony can be admitted as a Witness If my Lord of Warwick does insist upon his Evidence a Matter of Right we for the King do insist upon it that there is no Right at all in the Case for French must be taken to be one Convicted of Felony and not discharged without either Burning in the Hand or Pardon and then we are sure it cannot be pretended in Law that he can be a Witness L. H. St. My Lords the King's Councel have Stated their Objection what is your pleasure to have done in it E. of Rivers I suppose my Lords that it will be necessary to hear what Answer my Lord of Warwick gives to this Objection L. H. St. Is it your Lordships pleasure then that the Councel assigned for my Lord Warwick be heard what they have to say to this Matter Lords Ay Ay Ay. Then Sir Thomas Powis came to the Bar and stood by the Earl of Warwick and spoke thus Sir T. Powis May it please your Lordships I am by the Order of this Honourable House Assigned of Councel for this Noble Lord at the Bar in Point of Law and my Lords as to the present Question that has been spoken to by the King's Councel I am a little surprized to hear it should be wondered at that my Lord of Warwick should insist upon it that this Gentleman should be Examined for him as a Witness because with humble Submission to your Lordships I think the Authorities of Law will make for the Opinion on the other side Mr. Attorney General says true the first Statute that was made for Burning in the Hand was that in 4 Hen. 7. before that time the Benefit of Clergy even for Murder was used to be allowed upon the Prayer of the Party and he was thereupon delivered over to the Ordinary to make his Purgation and that not only once but toties quoties
let him demand it as often as he would and as often as he offended it was allowed This was thought such a Priviledge as ought to be restrained that Statute of the 4th of Hen. 7. takes notice that an ill use was made of it and therefore does ordain That it should be allowed no more then once unless to Persons within Orders And as a Means to know whether it had been before allowed or not the Act does direct that the Party Convicted shall be Burnt in the Hand that is all the Act does appoint it does no otherwise alter the Case it does not impose it upon the Party as a Punishment for the Offence but only as a Mark of Distinction that if ever he came again before the Court and being Convicted of the like Offence should pray the Benefit of Clergy then upon Inspection it might be known whether before he had been allowed his Clergie or not and so stood the Law without alteration as to the manner of delivery of the Criminal over to the Ordinary to make his Purgation with which the Temporal Law in the manner of doing thereof did not intermeddle and therein consisted with respect to this Matter the Benefit of Clergie Afterwards by the Statute of Edward the 6th the Peers were exempted from the Burning in the Hand and then comes the Act that we rely upon vvhich is that of the 18 Eliz. that takes notice of the former Act of 4 Hen. 7. vvhich only ordered the Burning of the Hand for the purposes aforesaid but left the Party to be delivered over to the Ordinary to make his Purgation vvhich vvas found to be a Matter attended vvith many Abuses and upon the Reformation thought fit to be abolished and taken away because it was only an outward appearance and shew of Purgation and was often the occasion of very great Perjuries therefore it is taken totally away and by this Act the Party shall have the Benefit of Clergie without making Purgation as fully as if he had actually made it But say they There is still left something that the Law requires which is That he should be first Burnt in the Hand and if he be not Burnt in the Hand or at least Pardoned he is not in that Condition that the Law calls for in such a Case to set him Rectus in Curia If he be Burnt in the Hand or Pardoned by the King they agree on the other side that he may be a very good Witness My Lords that Act of Parliament of Queen Eliz. does impower the Court that Tries the Criminal and before whom he is Convicted not only to Burn him in the Hand pursuant to the Act of Hen. 7. but also to detain him in Prison for a year after but yet I think that doth not signifie any thing one way or other to restore him or not restore him to his Credit for I think the Burning in the Hand which is a Mark of Infamy was never intended as a Means any more than Imprisonment for a year of Restoring a Man to his Credit it was only to shew he had his Clergie once and should have it no more The allowance of Clergie by the Statute of Eliz. operates as a Pardon only saith the Statute he shall not be delivered out of Prison before he is Burnt in the Hand according to the Statute of Hen. 7. No body can say that the continuing in Prison for a year which the Court may order though Burnt in the Hand would as to restoring of Credit have operated one way or other but that we insist upon is That the allowance of Clergie sets him right in Court since Purgation is abolished and is the same thing as if he had undergone the Ceremonial parts of a formal Purgation It is the allowance of Clergie that makes the alteration or operation in this Case by virtue of this last Act of the 18th of Eliz. for we take it that he is to have the same Benefit of his Clergie as is if he had been delivered to the Ordinary and Purgation had been made and now the allowance of Clergie by this Act gives the same benefit to the Party as Purgation would have done before the Act and he is in the same State and Condition as he would have been in Case of a Purgation or of a Pardon by the King The Authorities are all with us there is a Case that is very well known among the Men of the Law in the Fourth Report of My Lord Cooke Holcroft's Case who was Indicted and Convicted of Manslaughter and he prayed the Benefit of his Clergie The Judges thought fit to respite their Judgment therein but his Prayer was entred upon Record And then an Appeal being brought against him it came to be a Question how far he had had his Clergie for by the Stat. of the 3d of H. 7. an Appeal will lie notwithstanding a Conviction if the Party have not had his Clergie and in this Case it was adjudged that the Party having prayed his Clergie he should have the same benefit as if the Court had ordered every thing to be actually Executed which ought thereupon to be done and surely then it can be no Question whether a Man shall be a Witness or no who has had his Clergie allowed It is so entred upon Record that the Book was administred to him and that he read as a Clerk for the Party has done as much as he can prayed the Benefit of his Clergie and had it allowed and so it is entred upon Record The Respiting of the Burning of the Hand till the King's Pardon be obtained shall not sure put him in a worse Condition than he would have been if he had actually been Burnt in the Hand My Lords I have in my Hand a Book which is of very great Esteem and that is The Reports of My Lord Chief Justice Hobbart wherein he declares his Opinion in this Point and for whose Opinion every one of our Gown ever have testified a very great Veneration and Respect The Case is that of Searle and Williams wherein my Lord Hobbart has spoken so fully to this Matter that I think it ought to put an end to the Question He says the Stat. of Eliz. appointing the Burning in the Hand without Purgation does operate as a Statute Pardon to all intents and purposes and the Party having now the Benefit of his Clergie allowed is in all respects in the same Condition as if he had been acquitted That is the Opinion that he holds throughout that Case I need not trouble your Lordships with Reading all the particular Words that he uses but only those which relate to the thing now in Question Immediately before your Lordships he delivers his Opinion That whosoever speaks Words of Accusation reflecting upon a Man for any Offence for which he was Indicted and Convicted and had had his Clergie allowed an Action lies as if he had been totally acquitted from it 'T is not the Burning
in the Hand but the Allowance of Clergie that sets him right in his Credit in the Eye of the Law and he is thereby in the same Condition in that respect that he would have been if he never had had any Conviction upon him Towards the end of the Case his very Words are these Though the Statute saith after Burning in the Hand according to the Statute in that behalf made he shall be discharged and there is no Burning in the Hand that makes nothing for though it be a Case where the Hand ought to be Burnt yet it is not so essential but a Man may have the Benefit of the Stat. though he be not Burnt the King may pardon the Burning for the Burning even in an Appeal is no part of the Judgment nor so much as in the Nature of Punishment but rather a Mark to notifie that he may have his Clergie but once These are his very Words in this Case so that the Statute of Queen Eliz. doth abolish Purgation but gives the Party all the Benefit thereof as if he had gone through it and instead of delivering the Party to the Ordinary to make his Purgation it says he shall be delivered out of Prison but lest it might seem to Repeal the Statute of Hen. 7. as to Burning in the Hand it adds being Burnt in the Hand according to the Statute in that behalf provided By the Statute of Hen. 7th he was first to be Burnt in the Hand and then delivered to the Ordinary to make his Purgation but by the Statute of Eliz. he is first Pardoned his Crime by being allowed the Benefit of his Clergie without making his Purgation and afterwards to be Burnt in the Hand before he be delivered out of Prison so that the Burning in the Hand is only a Condition precedent to his getting out of Prison not to his being restored to his Credit The King may Pardon the Burning in the Hand undoubtedly and he has gone a great way in this Case for he hath given a Pardon as far as the Privy Seal and that is sufficient to shew his Gracious Intention of Pardoning it throughout and if there be need we hope it may pass yet forward What we insist on is not only the Opinion of my Lord Chief Justice Hobbart but he is followed therein by the Opinion of a Man of very great Authority one no less Eminent than he in his Profession and that is my Lord Chief Justice Hale in a Book of his that is Intituled His Pleas of the Crown which is but an Abridgment of what he intended upon that Subject under the Title of Clergy when he comes to treat of the Consequences of the allowance of Clergy and what the several Effects of Clergy allowed shall be he says it gives him a Capacity to purchase Goods and retain the Profits of his Lands and restores him to his Credit according to the Case I have mentioned before in Hobbart of Searle and Williams for that Case is particularly in that Book mentioned and referred to Therefore I hope your Lordships will make no difficulty of Hearing this Witness for we think the having his Clergy allowed him is that which restores him to his Credit If they have any other Objections against him I hope we shall hear it from the King's Councel But if this be stood upon in point of Law as an Objection That though Clergy was allowed he was not Burnt in the Hand nor pardoned I would have observed to your Lordships That my Lord High Steward has told you it is so far gone towards the Pardon that the King has shown his Intention to pardon by the Privy Seal and we hope your Lordships will not let this Noble Lord at the Bar suffer any Prejudice by the not perfecting of the Pardon by actual passing of the Great Seal L. H. St. Mr. Attorney General what say you to the Matters which have been urged Mr. At. Gen. My Lord we have stated our Objection we think there is nothing given as an Answer to it and we submit it to your Lordship's Judgment Marq. of Hallifax My Lords I desire that the Question that is to be decided before your Lordships may be settled truly what it is L. H. St. If there be Six in Company and one of them is killed the other Five are afterwards indicted and Three are Tried and found Guilty of Manslaughter and upon their Prayers have their Clergy allowed and the Burning in the Hand is respited but not pardoned Whether any of the Three can be a Witness upon the Trial of either the other Two Sir T. Powis My Lords with Submission though he were convicted of the Felony yet upon Prayer of his Clergy that being allowed him That restores him to all the Capacities we say that he had before the Conviction and particularly to his Credit and for that we submit our solves to your Lordships Judgment Marq. of Hallifax I suppose your Lordships will have the Opinion of the Judges upon this Point and that must be in the presence of the Prisoner L. H. St. It must certainly be in the presence of the Prisoner if you ask the Judges Opinions Marq. of Hallifax But in these Cases my Lords it is usual to hear the King's Councel to make a Reply I desire to hear what they would say to what has been offered by the Councel for the Noble Lord the Prisoner at the Bar. Mr. Serj. Wright My Lords I did apprehend that the very stating of the Objection would have set this matter in its true light For the first place it is agreed on all hands That this Mr. French that is desired to be a Witness does stand convicted of Felony and by the Law of England while that Conviction remains upon him till he be either purged or pardoned he cannot be a Witness By the Conviction his Credit is lost and till he be restored to his first Condition he stands not so clear in the Eye of the Law that he can be an Evidence The Councel for the Prisoner have objected That if he either be pardoned or Clergy allowed he is put in the same Condition as if he had been acquitted My Lords I must admit a Pardon restores to Credit and I must likewise admit That allowance of the Benefit of Clergy and Burning in the Hand upon it amounts in Law to a Pardon or is equivalent to a Pardon in this matter But the Fact here is not so for here is neither actual Pardon nor-any Burning in the Hand The Benefit of Clergy was prayed and allowed but that alone is not sufficient there must be an actual Burning in the Hand or a Pardon of that Burning in the Hand otherwise it cannot be a Satisfaction in Law such as should put him in the same Condition as if he were acquitted Your Lordships have heard what was said by his Grace my Lord High Steward That as to the Burning in the Hand the King has been pleased to proceed so
suppose that you may hear the Councel to state the Question without your determining any thing upon it as to your Opinion one way or other for your hearing of Councel is only in order to prepare your Lordships for the Debate among your selves If there remains any doubt with you it seems my Noble Lord at the Bar has proposed that his Councel should be heard If the Councel will state the Point to be Argued upon your Lordships may here consider whether it be such a one as it is fit to hear Councel to then no doubt you will hear Councel to it This I suppose you will hear from them or otherwise your Lordships will not think fit to give your selves the trouble to go and Debate that which is no settled Question to be Debated of E. of Roch. My Lords I am afraid of necessity you must Adjourn to your own House for I find my Lords are here Arguing one with another some are of Opinion that the Councel should state the Question that they should he Heard upon others of my Lords are of Opinion that it is only a matter of Fact not a Matter of Law upon which Councel should be Heard then it must be Debated between your Lordships which is not proper for to do here therefore I would Humbly move your Lordships that you would Adjourn to your own House E. of Pet. I suppose your Lordships will be pleased to enquire of the Councel whether they do insist upon this Point or no. L. H. St. My Lord Warwick if your Lordship insist that your Councel should be heard upon the Point which you have offer'd it seems there is such a difference of Opinion among my Lords that for the Debating of what shall be done in the Case my Lords must Adjourn but if you do not insist upon it they will go on in the ordinary Method to consider of the Evidence that has been given after it is summ'd up on both sides for if you have no more Evidence to offer you are to make your Observations upon the Evidence that has been given E. of War My Lords I submit it upon the whole Matter to your Lordships whether my Councel can be heard or not to that Point How far I being of Mr. Coote's side can be guilty of his Death L. H. St. That is a matter of Fact which is not yet Determin'd and therefore the Question which you suppose to arise upon it is not yet ripe to be Resolved If you have no other Witnesses to produce that which remains for I think I may properly acquaint you with the Methods of Proceeding is that you are now on your part to sum up the Evidence that has been given which is your own work as not being allow'd Councel as to Matter of Fact you are at liberty to make such observations as you may think for your Advantage upon the Evidence and so to close your Defence E. of War My Lord I submit it upon the whole Matter to your Lordships L. H. St. Mr. Attorney-General my Lord Warwick submits the Matter as it has been prov'd to their Lordships without any summing up of the Evidence you who are of the King's Councel if you think fit will Sum up the Evidence on yours in order to their Lordships Consideration of it This you know is the time for doing it Make Proclamation for Silence Cl. of the Cr. Sergeant at Arms make Proclamation Serg. 〈…〉 O Yes O Yes O Yes My Lord High Steward of England his Grace does â—â—taitly Charge and Command all manner of Persons here present to keep silence upon pain of Imprisonment L. H. St. Gentlemen you that are of the King's Councel now is your time to Sum up the Evidence for the King Then Mr. Sollioitonâ— begun to Sum up the Evidence but his Voice was so low that he 〈◊〉 not be heard by the Lords that sate at the upper end of the House D. of Leeds My Lords I think it of so great importance to have a true State of the Fact and Evidence laid before us and that we may hear what the King's Councel do say at the summing up of the Evidence that if my Lords be of my Opinion we shall be very defective to know what Judgment we give when we come to give Judgment unless we are thoroughly appriged of the Matter of Fact and the Proofs I confess I am going to move that which is a Thing according to the Orders of the House much without the Rules of the House That the Councel should be heard in any other Place but where they are at the Bar of the House This is contrary indeed I acknowledge to the Orders of the House and so my Motion is irregular but yet in order to our Satisfaction that we might be enabled to hear what the King's Councel do say to us especially in Summing up the Evidence I cannot but offer this to your Lordships for we can no more hear the Councel here than if we were quite out of the House Whether therefore your Lordships will please to order that any Person that has a stronger Voice should Sum up the Evidence Or whether you will dispense with the Orders of the House so far as that Mr. Sollicitor may come to the Clerk's Table or some other Place within the House that he may come to the all I must submit it to your Lordships It would be a great Satisfaction for us to hear him in order to our Judgment but I acknowledge in this I do make an irregular Motion as to the Orders that are usually observed by your Lordships But I know not how to help it in regard without hearing it is impossible for us to form our Judgment E. of Roch. My Lords I have a very great respect for every Motion that that Noble Lord who spoke last does make and I am of his Opinion That it will mightily tend to the Satisfaction of my Lords who are to give their Judgment in this Case to hear both the Evidence and the Councel and what Observations are made on both sides and that it is a great Disadvantage that the Councel should have so low a Voice that all my Lords should not be able to hear him but yet I hope that may be remedied some other way then what is proposed by that Noble Lord for if what he desireâ— were done it will be obvious that in point of President many Inconveniencies will incur upon breaking the Orders of the House to comply with a Motion which is acknowledged by the Noble Lord himself to be irregular for it would be impossible to hear any body if it be permitted to make such a great Noise without and it is that which renders the Difficulty of hearing the greater If that were quieted your Lordships might hear this Gentleman as well as those of the other Councel Or if this Gentleman's Voice will not so well reach your Hearing then there are other Gentlemen of the King's Councel that have stronger
Voices and if any of them would Sum up the Evidence I believe it would be better heard and consequently better apprehended by your Lordships for I had rather any Expedient should be found out to comply with the Orders of the House and preserve them than that any irregular Thing should be done for the breaking the Orders of the House upon any Account whatsoever L. H. St. Make another Proclamation for Silence Cl. of the Crown Serjeant at Arms make Proclamation Serj. at Arms. O Yes O Yes O Yes My Lord High-Steward of England his Grace does straitly Charge and Command all manner of Persons here present to keep Silence upon pain of Imprisonment E. of Bridgewater Truly my Lords The Noise about the Court is so great that we who sit much nearer to the Bar than the Noble Lord who made the Motion for the removal of the Councel into another Place cannot hear Mr. Sollicitor what he says and therefore I think some of the Guard should be sent out to clear all the Passages about the Court that there may be no Noise for it is the Noise of the People without that makes it so difficult to hear the King's Councel L. H. St. Let some of the Guard without take care that there be not that Noise made and whosoever does make a Noise let him be taken into Custody Then another Proclamation was made for Silence upon which there was a greater Quietness in the Hall L. H. St. Mr. Sollicitor There is hopes now since there is not so great Noise as there was that you may be heard by my Lords You must use the best Endeavours you can that you may be heard E. of Roch. If that Gentleman cannot speak out so well that he can be heard those of the King's Councel that have better Voices must Sum up the Evidence Mr. Sol. Gen. My Lord I speak as loud as I can E. of Roch. There are others of the King's Councel pray let them do it then Mr. Attorney he being nearer and within the Bar. L. H. St. I know not whether Mr. Attorney be prepared for the Summing up of the Evidence because he Examined the Witnesses and the King's Councel usually allot to themselves the particular Parts which they intend to take E. of Roch. Then let Mr. Sollicitor go on Mr. Sol. Gen. I would shortly observe to your Lordships what Evidence hath been given to you on behalf of the King in this Case against that Noble Lord the Prisoner at the Bar for the Offence for which he stands Indicted The first Witness that was produced was the Drawer at the Greyhound Tavern in the Strand where this Quarrel that was the occasion of the Death of this Person that was slain happn'd and he tells you that that night there was at his Master's House my Lord of Warwick my Lord Mohun Capt. French Capt. Coote the Person that was kill'd and Mr. Dockwra and after they had been there some time that other Person that was the Sixth concerned in the Scuffle Mr. James was sent for and he came in when it was pretty late there they continued till One or two a Clock and then they came down to the Bar and Order was given for to call Coaches but it being so late and Sunday morning they could not find Coaches and then there was Orders for the getting of Chairs when some Chairs were brought Mr. Coote and Mr. French went into two of the Chairs but my Lord Mohun interposed and said there should be nothing done that night and that if they went away he would call for a File of Musqueteers from the Guard and secure them and thereupon they came out of the Chairs and went into the House and there was the Noise of Swords clashing heard at the Bar Capt. Coote said he would Laugh when he pleas'd and Frown when he pleas'd and they parted Three were on one side and three on the other of the Bar my Lord of Warwick my Lord Mohun and Capt. Coote were on one side Capt. French Capt. James and Mr. Dockwra were on the other side Indeed he says my Lord Mohun and my Lord Warwick did what they could to pacifie them and threatned to send for the Guards but away they went The next Witness was Thomas Browne and he was the Chairman that carried Mr. Coote and he says That there was an Endeavour by my Lord of Warwick and my Lord Mohun to put off the Business at that time and that they did what they could to have put it off and that even after they were in their Chairs when they were turned up St. Martins-Lane there they stopt at the Back Door of the Cross-Keys Tavern and that while they stood there with their Three Chairs Three other Chairs came by and then Capt. Cooâ—e â—id them put up and follow after those Chairs as fast as they could to Leicester-fields The next Witness is William Crippes who was the other Chairman that carried Capt. Coote and he gives your Lordships much the same Account that Browne gave before and his Evidence was just to the same purpose That my Lord of Warwick and my Lord Mohun endeavoured to pacific the Matter and that there should be an end of the Business for that night and let it alone till another time and that my Lord Mohun threatn'd to send for the Guards and secure them and would have had them gone home that is Mr. Coote either with him to his Lodging or he would go to Mr. Coot's but he could not prevail Then my Lord Mohun said If he would go on his Lordship would go and see an end of the Business The next Witness was one Crattle who was one of the Chairmen that carried my Lord of Warwick and he says That my Lord Mohun and my Lord of Warwick did endeavour what they could to put off the Matter till the next morning but that they could not prevail That afterwards when he carried my Lord from Leicester-fields to the Bagnio my Lord borrowed a Handkerchief of him to wrap his Hand in for he said he was wounded but by whom that Wound was given does not appear nor how he came by that Wound any otherways then as his Lordship himself says that it was given him by Mr. James The next was the other Chairman that carried my Lord of Warwick which was John Gibson and his Testimony need not be repeated because it did not differ from the others The next Witness was Robert Applegate who was the Chairman that carried my Lord Mohun and he says That there was an Endeavour used by my Lord upon his setting down in St. Martins-Lane to quiet Capt. Coote and prevent any Quarrel at that time but he says when they would go on my Lord Mohun said he would go and see the end of it and thereupon they went on towards Leicester-fields to the end of Greenstreet which is at the lower end of the Square The next Witness was Palmer who was one of the Chairmen that
other end of the Square Mr. Attorney General Did you see any Gentlemen as you came down walking up towards the Standard-tavern upon the pav'd Stones Edwards No indeed my Lords not that I remember but I did see the other three Chairs as I past by at Green-street end who were in 'em or what was become of them that were in 'em that I can't tell Mr. Attorney General What did they say to you any of 'em at that time Edwards They askt us if we were going away and we told 'em Yes we were discharg'd Mr. Attorney General But pray did you not meet any of the other Gentlemen upon the pav'd Stones Edwards No indeed I did not see to the best of my Remembrance any other Gentlemen upon the pav'd Stones Mr. Attorney General What did the other Chair-men say to you Edwards They askt if we were coming away and we left 'em behind us Lord High Steward Has my Lord Mohun any Questions to ask him Lord Mohun No I have not Lord High Steward Mr. Attorney who is your next Witness Mr. Attorney General Jackson who was the Chairman that carryed Captain James He was Sworn Mr. Attorney General Pray will you acquaint my Lords who you carryed from Lockets to Leicester-fields Jackson Captain James There were six Chairs in all I do not know who went in the other Chairs but in the three Chairs that went together when we went there was Ceptain Docwra Captain French and Captain James Mr. Attorney General And where did you set him down Jackson At the Standard-Tavern in the Square of Leicester-fields Mr. Attorney General What became of him after you set him down Jackson We knockt twice at the Tavern-door and then he gave us a Shilling and we went away presently and went down on the left Hand upon the pav'd Stones towards Green-street end Mr. Attorney General Did you meet any Persons coming up upon the paved Stones Jackson Yes my Lord I did Mr. Attorney General Can you tell who those Persons were Jackson Indeed I cannot tell Mr. Attorney General How many were they in number Jackson They were two or three but it was so dark that I cannot tell how many they were Mr. Attorney General Which way were they walking Jackson They were going up towards the middle Street Mr. Attorney General How far was that from the Standard-tavern Jackson It might be about fixty Yards from the Standard-tavern Mr. Attorney General You say â—here were three Chairs standing at the end of Green-street when you came by Jackson Yes there were so Mr. Attorney General Had you no discourse with them Jackson No indeed I had not Mr. Attorney General Did you not ask them why they staid thereâ— Jackson No indeed I did not we past by and went home Mr. Attorney General You know my Lord Mohun don't you Jackson Yes I do very well Mr. Attorney General Was not my Lord Mohun in that Company Jackson He was when the six Chairs were call'd to Lockets but I did not hear any Discourse that I can remember that past among 'em nor do I know or did hear what became of my Lord Mohun afterwards Mr. Attorney General Were those the other three Chairs that went away from Lockets first that you saw at Green street end Jackson Indeed my Lords I believe so I cannot swear that they were those three Chairs when we had set down Captain James we did not look back any way at all but went away home it being so late and so dark Lord High Steward My Lord Mokun will you ask this Witness any Questions Mr. Attorney General Then my Lord we shall call William Salmon who was the Surgeon that did search the Wound by the Coroner's Command when he took the Inquisition upon the view of the Body Who was Sworn Mr. Attorney General Pray did you view the Body of Mr. Coote after he was Dead Salmon Yes I did view his Body by the command of the Coroner at the Watch-house where it lay in St. Martins-lane Mr. Attorney General Pray then will you acquaint my Lords what Wounds you found upon the Body Salmon There was one upon the left part of the Breast near the Collar-bone which upon probing I found to be half an Inch in Breadth and four or five Inches deep downward the other was a Wound that was in his left side just under the short Ribbs and that was upward and upon probing of it I found it was about the breadth of an Inch at the Orifice and about the depth of five or six Inches and pierced through the Diaphragma Mr. Attorney General Pray did you observe any difference in the Wounds or in the Orifice of ' em Salmon That below was a large Wound larger than the other Mr. Attorney General Were the Wounds do you think given with two Swords or with one and the same Sword Salmon Indeed I can't tell Mr. Attorney General Did you look upon either and which of them to be Mortal Salmon I look'd upon both to be Mortal Lord High Steward If you have done with him Mr. Attorney will my Lord Mohun ask him any Questions Lord Mohun No I shall ask him no Questions for I think I need not I was never prov'd to be in the Company in the place where the Fighting was Mr. Attorney General We have done with calling of Witnesses 'till we hear what my Lord Mohun says to it Lord High Steward My Lord Mohun This is the time the Kings Evidence being finished for you to call your Witnesses and make your Defence Lord Mohun My Lords I shall not call many Witnesses for I think there is nothing that fixes any thing of Guilt as to Captain Coots Death as to me but I shall call one Witness that was here as I understand yesterday but not Examined and that is a Person that saw me afterwards and knows that I had a Wound in my Finger laid open and that Wound was received at Lockets by endeavouring to part 'em when they were quarelling there at that time The Witness stood up Lord High Steward Tho' you are not upon your Oath yet you are as much obliged in Justice and Conscience to speak the exact truth as if you were upon your Oath therefore have a care what Testimony you give Witness Yes my Lord. Lord High Steward What is the Question you would have this Witness ask'd Lord Mohun What he knows of my being Wounded about this time and what I declared concerning that Wound how I received it Lord High Steward I will not refuse to ask the Question but I must acquaint your Lordship that it signifies nothing in point of Evidence at Law what you your self did declare after the Fact was over It is Material what you did to prevent this Mischief before it hapned but not what you said or declared after the thing was done You hear my Lords Question what say you to it Witness I was at my Lord Mohun's several Days after this business hapned at the Lodging where
he lay and where I saw him he had a hurt in his Hand and it was layd open it was in the Finger and that he said was all he got by endeavouring to part people from Fighting Mr. Attorney General Pray Sir when was this Witness It was several Days after the death of Mr. Coote Lord High Steward I told your Lordship before that in Point of Law such Evidence would signifie nothing because your declaring any matter after the thing was done in relation to the Fact could not be admitted as legal Evidence if any of my Lords be of another Opinion I suppose they will declare it Lord Mohun My Lords I submit it to your Lordships I only desire he may be askt whether he saw my Hand or no and how it was Witness I saw my Lord's Finger and it had been laid open some time before and he said he had received that Wound by endeavouring to part Captain French and Captain Coote that 's all I know of the matter Mr. Attorney General But pray when was that that he declared so how long after the death of Mr. Coote Witness It was several Days after that Lord High Steward You hear in point of Law that can be no Evidence at all if you have no other Witnesses to call your Lordship would do well to sum up your Evidence and make what Observations you think fit upon the Evidence that has been given for the King Lord Mohun My Lords I hope I shall make my Defence against this Accusation with all the modesty and submission to your Lordships that becomes me I am very much ashamed to be brought before your Lordships upon any such account as this again after having been once before your Lordships upon such an account before I may very well say I am not guilty at all of having any hand in Mr. Coote's death and I can assure your Lordships I will avoid all occasions of giving you any trouble of this nature for the future I do not doubt but to acquit my self of all Guilt in relation to this matter and indeed with submission to your Lordships there has been no Evidence given relating to me that do infer any Guilt upon me to prove that I was at the place where this Fact was done therefore I shall only make some few little Remarks upon what has been said and leave it all to your Lordships consideration The King's Council first have call'd the Drawer of the House and he has satisfied that I did so far endeavour to part 'em that I threaten'd to send for the Guards and secure 'em if they would not go home and when they went into the Chairs I went into my Chair on purpose to follow 'em down to Westminster whither I would have had 'em gone the prick that I got in my Finger of it self speaks that I endeavour'd to part 'em and so the Drawer he has told you I am sure it was the occasion of a great deal of pain to me it being forc'd to be afterwards laid open the Chair-men that carried Mr. Coote swears that I at the Door of the Tavern in St. Martins-lane did make 'em stand and when I came up to 'em I begg'd as for an Alms that they would go home and I askt Coote whither he was going which proves that I was not conscious of any design of going to fight at that time your Lordships are likewise told that when we came to Green-street end I was set down upon the pav'd Stones I was so indeed and I went up about five or six Yards but that is all that 's prov'd but I did take the quite contrary way to the place where Mr. Coote was wounded then there was another Chair-man one Applegate and truly what use they make of him I cannot imagine as an Evidence against me for he says I was very earnest in St. Martins-lane to hinder any Quarrel and indeed at the Tavern door at Locket's I was so at first and when we came to St. Martins-lane end he says that I order'd 'em to make them stop and askt Coote whither he was going and he saying he was going to Leicester-fields I endeavour'd all I could to perswade him to the contrary and did intreat him that he would go no farther but go down to Westminster to his Lodging or lodge with me but Mr. Coote would not give me time at that time the other Chairs coming by to give him further reasons but would go away and then it is objected that I should say That if they would go I would go and see that was my Lords I would go on till I could have a further opportunity to prevent any Fighting amongst them and the Witness Ketro says my Lord of Warwick did bid the Chair to follow the other Chair in which Captain Coote was my design was for Westminster to go to my Lodgings and when we came to the end of the Square if I did go up the whole Stones it was directly the contrary way to the place where it is prov'd this Fact happen'd for the next Witness Edwards he says he saw no body walking upon the pav'd Stones and truly I did go the direct way into Newport-street and for my not appearing before it was for avoiding confinement and I must submit the whole matter to your Lordships how far any Guilt is fix'd upon me not being prov'd to be in the Field at the time when they fought or seen to be in the Company when they came up and sound Mr. Coote wounded and dying or dead It is a plain case I could have no hand at all in his death and so I think I need give no further trouble to your Lordships for I believe your Lordships cannot but be satisfied that as I have pleaded I am not Guilty of killing this Gentleman nay it is impossible that I should go into the Field to be a second when my own right Hand was Wounded for I was not able to hold my Sword in my Sword Hand because of that Wound I submit the matter intirely to your Lordships from whom I am sure to meet with every thing that will be suitable to Honour and Justice Lord High Steward The Kings Council are now to Sum up the Evidence for the King Mr. Sollicitor General begun to Sum up the Evidence for the King but his Voice was so low and the noise in the Hall so great that he could not be heard and therefore the Lord High Steward moved the House that he might stand by the Prisoner at the Bar which was something nearer than the place where the Kings Council stood as was done the day before and it was order'd accordingly Lord High Steward Mr. Sollicitor Pray raise your Voice as much as you can that all my noble Lords may hear you Several of the Lords did move that one that had a better Voice might Sum it up and particularly Mr. Cooper but it being usually the part of the Sollicitor General and he only having
prepared himself he was ordered to go on but for the better hearing of him several of the Lords towards the upper end of the House removed from their Seats down as they did the Day before to sit upon the Wool-packs Mr. Sollicitor General My Lords I am of Council for the King against this Noble Lord my Lord Mohun the Prisoner at the Bar who has been upon his Tryal this Day and it comes to my turn to Sum up the Evidence that has been given against him which is but a Repetition of what your Lordships no doubt of it have taken exact notice of but I must shortly Sum up the chief of the Particulars thereof and make a few Remarks what of that Evidence sticks particularly upon my Lord Mohun The first Witness was the Drawer of the House at the Greyhound in the Strand who gives you an Account who were at his â—â—sters House the Nine and twentieth of October last and particularly that my Lord Mohun was there in the same Company wherein this Gentleman was that was unfortunately kill'd and that he continued in that Company till very late that Night or rather very early the next Morning when after the Reckoning was paid they came all down to the Bar and call'd for Coaches and he tells you that he was sent out and he tells you what he was sent for he was sent for Coaches and so cannot give any Account what past while he was gone but when upon calling for Coaches none could be had there was order for Chairs to be call'd and Chairs were brought to the Door and when he came in again he heard the Clashing of Swords and there were three of 'em on the one side of the Bar and three of 'em on the other indeed he does say he did 〈◊〉 sâ—e when the Swords were drawn but at that time they were putting up their Swords my Lord Mohun was in the Company upon which I would observe to your Lordships that there had been some Fighting for the Witness says upon my Lords Question that my Lord call'd for a Napkin to put his Hand in for his Fingar was cut and he said this is all that I have got by endeavouring to part them so that it shows there was a Quarrel and my Lord Mohun was in it When the Chairs were brought to the Door they went into them there went Mr. Coote into one into the second my Lord of Warwick and into the third my Lord Mohun so that still my Lord Mohun was in the Company and they went away together and tho' it is pretended by my Lord That he did all he could to prevent the Quarrel yet he gave Directions to the Chair-men that carryed him to follow the other Chairs and your Lordships perceive what the business was that they went about and the other three Chairs followed after presently so that they all went away together nay my Lord himself does not disown his being in the Company till they came into Leicester-fields Next I would observe what fell from Brown who carryed the very Gentleman that was kill'd Mr. Coote that my Lord Mohun was in one of the three first Chairs and that they all went together till that my Lord Mohun call'd out to stop upon the turning up into St. Martins-lane and tho' they stopt in St. Martins-lane and my Lord Mohun did intreat them to let it alone at that time yet it was only to let it alone till the Morning and when the other three Chairs past by on the other side of the way and Coote would have them go on my Lord Mohun said If they would go on he would go with them and see it Applegate the Chairman that carryed my Lord Mohun says the same and so it is plain my Lord Mohun did go on with an intention to make one in the Affray for Applegate says That when my Lord Mohun could not prevail upon his perswasions and when Coote went away after the other three Chairs were past by my Lord Mohun said If you do go I must go and see it and they did go all together And the Chair-man says he set my Lord Mohun down at the end of Green-street at the lower end of the Fields where the other two Chairs set down Captain Coote and my Lord of Warwick and that they all three walk'd up together towards the Standard-Tavern still all this proves my Lord did go there and that he himself did say he would go and see it and it is plain that my Lord Mohun did go as far as Leicester-fields and it is only his Declaration concerning himself without any proof that he went away and did not go into the Fields to the place where the Fact was done and we think it is sufficient proof that he was one of them that weâ—â— concern'd because we do prove that he was all along in the Company till the very time that they came into the place where the thing was done Then there is the Chair-man that carryed Mr. James and he tells your Lordships That the three first Chairs that went up St. Martins-lane went to the Standard-tavern and there they knockt at the Door and paid the Chair-men and went out of their Chair and so says the other Chair-men that carryed Captain Doâ—â—ra and Captain French and they say also That when they came down the paved Stones again they heard Chairs call'd for but they did not interpose at all in the matter but the other two Chairs it seems did for they went up to the upper end of the Square where there were two Persons holding up Mr. Coote and after they had put the Chair over the Rails in order to have him carried away in a Chair but they could not get him into the Chair I would likewise observe from the Evidence of the Surgeon who gives you an Account of what nature the Wounds were one was in the Breast near the Coller-bone on the left side the other was under the Short-ribs on the left side too which could not be given him by the Person that he was fighting with he being a right-hand Man as was prov'd by his Servant My Lord Mohun has call'd but one Witness which is only about a little Circumstance of his being wounded in the Hand and having the Wound laid open but that was two Days after this Fact was done my Lord Mohun could not but know that the matters he was to answer related to a time before It must be agreed to me that they all three my Lord of Warwick my Lord Mohun and Mr. Coote went all away together that they were carried to Leicester-fields that they were set down together and walk'd up together upon the Stone pavement when the others were gone towards the upper end of the Fields so that in all probability they all went together into the place where the Fight was and were all concern'd and if so my Lord Mohun must be equally guilty with the rest my Lord Mohun knowing what Business it