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Title: State Trials Vol. 2 (of 2)
Political and Social
Author: Various
Editor: Sir Harry Lushington Stephen
Release Date: November 22, 2011 [EBook #38088]
Language: English
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STATE TRIALS
_First impression, March 1899_
_Second impression, September 1899_
_All rights reserved_
[Illustration: William Lord Russell.]
STATE TRIALS
POLITICAL AND SOCIAL
SELECTED AND EDITED
BY H. L. STEPHEN
IN TWO VOLUMES
VOL. II
[Illustration]
LONDON
DUCKWORTH AND CO
1899
Edinburgh: T. and A. CONSTABLE, Printers to Her Majesty
CONTENTS
PAGE
LORD RUSSELL, 3
THE EARL OF WARWICK, 59
SPENCER COWPER AND OTHERS, 139
SAMUEL GOODERE AND OTHERS, 231
INDEX, 305
LORD RUSSELL
Lord Russell's trial marks the moment in the latter part of Charles
II.'s reign when his power reached its highest point. The Exclusion Bill
was thrown out by the House of Lords in 1680, and though Stafford was
tried and executed at the end of the year, the dissolution of the
short-lived Oxford Parliament in April 1681 left the Country party, who
had just acquired the name of Whigs, in a temporarily hopeless position.
On the 2nd of July in the same year Shaftesbury was arrested on a charge
of suborning witnesses in the Popish Plot, but the bill presented
against him was thrown out by the Grand Jury, which had been packed in
his favour by a friendly sheriff, and he was liberated in November. An
unscrupulous exercise of the power of the Court led to North (brother of
the Chief-Justice of the Common Pleas, soon to become Lord Keeper) and
Rich being sworn in as sheriffs in June 1682, and Shaftesbury, no longer
being able to rely on his City friends, retired into hiding and entered
on the illegal practices described in Russell's trial. The security
afforded to the opponents of the Court was further diminished in 1683
by the suppression of the charter of the City by a writ of Quo Warranto,
which, although it was too late to have any effect on Russell's conduct,
may help to justify it. The position of the Country party thus appeared
desperate. The King had contrived to overcome all constitutional means
of opposition; Shaftesbury's unscrupulous policy had alienated most of
his natural adherents; his violent disposition made it impossible for
his remaining followers to take advantage of the difficulties which the
King was preparing for himself and his successor; and by anticipating
the crisis of 1688, Shaftesbury, Essex, and Russell brought down
destruction on themselves.
Lord Russell was tried at the Old Bailey on the 13th of July 1683 before
the Lord Chief-Justice, Sir Francis Pemberton,[1] the Lord Chief-Baron,
Mr. William Montague, and nine other judges. There appeared for the
prosecution the Attorney-General, Sir Robert Sawyer[2], the
Solicitor-General, Mr. Finch[3], Serjeant Jeffreys[4], Mr. North[5].
The charge against Lord Russell was that he was guilty of high treason
in conspiring to depose and kill the King, and to stir up rebellion
against him. To this he pleaded Not Guilty.
He objected that he ought not to be arraigned and tried on the same day,
to which it was replied that he had had more than a fortnight's notice
of his trial and the facts alleged against him by having questions put
to him when he was in custody in the Tower. On the first juror being
called, Lord Russell objected that he was not a 40s. freeholder in the
City. He was allowed to have counsel assigned to him to argue as to
whether this was a good ground of objection; the counsel he chose were
Pollexfen[6], Holt[7], and Ward. The question was whether the statute 2
Hen. V. c. 3, which enacted that in the case of capital offences the
jurors must have lands of the yearly value of 40s., applied to trials
for treason or to trials in the City. It was decided by all the judges
that it did not,[8] the objection was overruled, and a jury was sworn
without any challenges being made.
_North_ then shortly opened the case. He alleged that in the previous
October and November a council consisting of Russell, the Duke of
Monmouth, Lord Grey,[9] Sir Thomas Armstrong, and one Ferguson, were
plotting a rising in conjunction with the Earl of Shaftesbury. The Earl
was anxious that the opportunity of the celebration of Queen Elizabeth's
birthday on the 19th of November should be used for the purpose. The
conspirators objected to this on the ground that Trenchard, who was to
have headed a rising in the West, was not ready. On this Shaftesbury and
Ferguson left the country, and the so-called council was re-organised by
Armstrong and Grey being left out, and Lord Howard,[10] Lord Essex,[11]
Colonel Algernon Sidney,[12] and Mr. Hampden,[13] being taken in.
Frequent consultations were held at Russell's house, and Aaron Smith was
despatched to Scotland to arrange a rising on the part of the
malcontents there.
_Rumsey_[14] was called, and being sworn deposed that at the end of
October or the beginning of November Shaftesbury had sent for him to his
lodgings in Wapping, where he was hiding, and told him to go to the
house of one Sheppard, where he could find Monmouth, Russell, Grey,
Armstrong, and Ferguson, and to ask what resolution they had come to as
to the rising at Taunton. He took this message accordingly, and received
an answer that Trenchard had promised 1000 foot and 300 horse, but had
failed them. Most of this answer was delivered by Ferguson, but others,
including Russell, were in the room at the time.
ATTORNEY-GENERAL--Was there nothing of my lord Shaftesbury to
be contented?
RUMSEY--Yes, that my lord Shaftesbury must be contented; and
upon that he took his resolution to be gone.
LORD CHIEF-JUSTICE--Did you hear any such resolution from him?
RUMSEY--Yes, my lord.
Shaftesbury told him of the meeting; he was not there more than a
quarter of an hour; he heard something of a declaration to be made,
either there, or on a report of Ferguson's.
JEFFREYS--To what purpose was the declaration?
LORD CHIEF-JUSTICE--We must do the prisoner that right; he says
he cannot tell whether he had it from him or Mr. Ferguson.
There was some discourse begun by Armstrong as to the posture of the
guards at the Savoy and at the Mews. Monmouth, Grey, and Armstrong, in
Russell's presence, undertook to see the guards,
with what care and vigilance they did guard themselves at the
Savoy and Mews, whether they might be surprised or not.
The rising was to be on the 19th of November. It was arranged by
Shaftesbury that he himself was to go to Bristol, in what capacity it
was not stated.
JEFFREYS--If my lord Russell pleases to ask him any questions
he may.
LORD RUSSELL--I have very few questions to ask him for I know
little of the matter; for it was the greatest accident in the
world I was there, and when I saw that company was there I
would have been gone again. I came there accidentally to speak
with Mr. Sheppard; I had just come to town, but there was no
discourse of surprising the guards, nor no undertaking of
raising an army.
LORD CHIEF-JUSTICE--We will hear you to anything by and by, but
that which we desire to know of your lordship is, as the
witnesses come, to know if you would have any particular
questions asked of them.
On being pressed by Russell, Rumsey repeated that Russell 'did discourse
of the rising' at Taunton and consented to it.
_Sheppard_ was called, and deposed that in October Ferguson came to him
in Monmouth's name,
and desired the conveniency of my house, for him and some other
persons of quality to meet there. As soon as I had granted it,
in the evening the duke of Monmouth, my lord Grey, my lord
Russell, sir Thomas Armstrong, col. Rumsey and Mr. Ferguson
came. Sir T. Armstrong desired me that none of my servants
might come up, but they might be private; so what they wanted I
went down for, a bottle of wine or so.
He confirmed Rumsey's evidence as to the discourse about surprising the
guards; Monmouth, Grey, and Armstrong went out to view them at the Mews;
the next time they met Armstrong reported
the guards were very remiss in their places, and not like
soldiers, and the thing was feasible, if they had strength to
do it.
There were two meetings: he had notice of them; the company came in the
evening; he saw no coaches; Lord Russell came both times.
JEFFREYS--Do you remember that col. Rumsey at the first time
had any discourse about any private business relating to my
lord Russell?
SHEPPARD--No, I do not remember it.
ATTORNEY-GENERAL--Besides the seizing of the guards did they
discourse about rising?
SHEPPARD--I do not remember any further discourse, for I went
several times down to fetch wine, and sugar, and nutmeg, and I
do not know what was said in my absence.
He remembered that a paper was read 'somewhat in the nature of a
proclamation,' setting forth the grievances of the nation 'in order to a
rising.' It was read by Ferguson, but he could not say whether they were
all present or not.
Cross-examined by Lord Russell, he could not be positive as to the time
of the meetings; they were at the time that Lord Shaftesbury was absent
from his house, and he absented himself about Michaelmas day.
LORD RUSSELL--I never was but once at your house, and there was
no such design as I heard of. I desire that Mr. Sheppard may
recollect himself.
SHEPPARD--Indeed my lord I can't be positive in the times. My
lord I am sure was at one meeting.
LORD CHIEF-JUSTICE--But was he at both?
SHEPPARD--I think so; but it was eight or nine months ago, and
I can't be positive.
LORD RUSSELL--I can prove I was then in the country. Col.
Rumsey said there was but one meeting.
COL. RUMSEY--I do not remember I was at two; if I was not, I
heard Mr. Ferguson relate the debates of the other meeting to
my lord Shaftesbury.
LORD RUSSELL--Is it usual for witnesses to hear one another?
LORD CHIEF-JUSTICE--I think your lordship need not concern
yourself about that; for I see the witnesses are brought in one
after another.
LORD RUSSELL--There was no design.
JEFFREYS--He hath sworn it.
ATTORNEY-GENERAL--Swear my lord Howard (which was done). Pray
will your lordship give an account to the Court, what you know
of a rising designed before my lord Shaftesbury went away, and
afterwards how it was continued on.
LORD HOWARD--My lord, I appear with some confusion. Let no man
wonder that it is troublesome to me. My lord as to the question
Mr. Attorney puts to me, this is the account I have to give: It
is very well known to every one, how great a ferment was made
in the city, upon occasion of the long dispute about the
election of sheriffs; and this soon produced a greater freedom
and liberty of speech one with another, than perhaps had been
used formerly, though not without some previous preparations
and dispositions made to the same thing. Upon this occasion
among others, I was acquainted with captain Walcot[15], a
person that had been some months in England, being returned out
of Ireland, and who indeed I had not seen for eleven years
before. But he came to me as soon as he came out of Ireland,
and when these unhappy divisions came, he made very frequent
applications to me; and though he was unknown himself, yet
being brought by me, he soon gained a confidence with my lord
Shaftesbury, and from him derived it to others. When this
unhappy rent and division of mind was, he having before got
himself acquainted with many persons of the city, had entered
into such counsels with them, as afterwards had the effect,
which in the ensuing narrative I shall relate to your
lordship. He came to me, and told me, that they were now
sensible all they had was going, that this force put upon
them----
LORD CHIEF-JUSTICE--Pray my lord, raise your voice, else your
evidence will pass for nothing.
ONE OF THE JURY--We cannot hear my lord.
LORD HOWARD--There is an unhappy accident happened that hath
sunk my voice: I was but just now acquainted with the fate of
my lord of Essex. My lord, I say, he came to me, and did
acquaint me, that the people were now so sensible that all
their interest was going, by that violence offered to the city
in their elections, that they were resolved to take some course
to put a stop to it, if it were possible: He told me there were
several consults and meetings of persons about it, and several
persons had begun to put themselves into a disposition and
preparation to act; that some had furnished themselves with
very good horses, and kept them in the most secret and blind
stables they could. That divers had intended it, and for his
own part he was resolved to imbark himself in it. And having an
estate in Ireland, he thought to dispatch his son thither (for
he had a good real estate, and a great stock, how he disposed
of his real estate, I know not); but he ordered his son to turn
his stock into money to furnish him for the occasion: This I
take to be about August, his son was sent away. Soon after this
the son not being yet returned, and I having several accounts
from him wherein I found the fermentation grew higher and
higher, and every day a nearer approach to action I told him I
had a necessity to go into Essex to attend the concerns of my
own estate; but told him how he might by another name convey
letters to me, and gave him a little cant, by which he might
blind and disguise the matter he wrote about when I was in the
country.
I received two or three letters from him, that gave me an
account in that disguised style, but such as I understood, that
the negotiation which he had with my correspondents was going
on, and in good condition; and it was earnestly desired I would
come to town; this was the middle of September.
I notwithstanding, was willing to see the result of that great
affair, upon which all men's eyes were fixed, which was the
determination of the shrivalty about that time. So I ordered it
to fall into town, and went to my own house Saturday night
which was Michaelmas Day.
On Sunday he came to me and dined with me, and told me (after a
general account given me of the affairs of the times) that my
lord Shaftesbury was secreted and withdrawn from his own house
in Aldersgate Street; and that though he had a family settled,
and had absconded himself from them, and divers others of his
friends and confidents; yet he did desire to speak with me, and
for that purpose sent him to shew me the way to his lodging: He
brought me to a house at the lower end of Wood Street, one
Watson's house, and there my lord was alone. He told me he
could not but be sensible, how innocent soever he was, both he
and all honest men were unsafe, so long as the administration
of justice was in such hands as would accommodate all things to
the humour of the court. That in the sense of this he thought
it but reasonable to provide for his own safety by withdrawing
himself from his own house into that retirement. That now he
had ripened affairs to that head, and had things in that
preparation, that he did not doubt but he should be able, by
those men that would be in readiness in London, to turn the
tide, and put a stop to the torrent that was ready to overflow.
But he did complain to me, that his design, and the design of
the public, was very much obstructed by the unhandsome
deportment of the Duke of Monmouth, and my lord Russell, who
had withdrawn themselves not only from his assistance, but from
their own engagements and appointments: For when he had got
such a formed force as he had in London, and expected to have
it answered by them in the country, they did recede from it,
and told him they were not in a condition or preparation, in
the country, to be concurrent with him at that time. This he
looked upon but as an artificial excuse, and as an instance of
their intentions wholly to desert him: but notwithstanding
there was such preparation made in London, that if they were
willing to lose the honour of being concurrent with him, he was
able to do it himself, and did intend speedily to put it into
execution. I asked him what forces he had? He said he had
enough. Says I, What are you assured of? Says he, There is
above ten thousand brisk boys are ready to follow me, whenever
I hold up my finger. Says I, How have you methoded this, that
they should not be crushed, for there will be a great force to
oppose you? Yes, he answered, but they would possess themselves
of the gates; and these ten thousand men in 24 hours would be
multiplied into five times the number, and be able to make a
sally out, and possess themselves of Whitehall, by beating the
guards. I told him this was a fair story, and I had reason to
think a man of his figure would not undertake a thing that
might prove so fatal, unless it were laid on a foundation that
might give a prudent man ground to hope it would be successful.
He said he was certain of it, but confessed it was a great
disappointment that these lords had failed him. I told him, I
was not provided with an answer at that time; that he well knew
me, and knew the general frame and bent of my spirit. But I
told him, I looked upon it as dangerous, and ought to be laid
deep, and to be very well weighed and considered of: and did
not think it a thing fit to be entered upon, without the
concurrence of those lords. He did consent, with much ado, but,
says he, you will find they will wave it, and give doubtful and
deferring answers, but you will find this a truth.
I went to Moor Park next day, where the Duke of Monmouth was,
and told him the great complaint my lord Shaftesbury had made,
that he failed him. Says he, I think he is mad; I was so far
from giving him any encouragement, that I did tell him from the
beginning, and so did my lord Russell, there was nothing to be
done by us in the country at that time. I did not then own that
I had seen my lord, but spake as if this were brought me by a
third person, because he had not given me liberty to tell them
where his lodging was. Says I, My lord, I shall be able to give
a better account of this in a day or two: Shall I convey it to
my lord, that you are willing to give a meeting? Yes, says he,
with all my heart. This was the 2nd, 3rd, or 4th of Oct.
I came to town on Saturday, and was carried to him on Monday;
and I suppose this was Tuesday the 2nd of October. On Wednesday
I think I went to him again (but it is not very material) and
told him I had been with the duke of Monmouth and given him a
punctual account of what I had from him; and the duke did
absolutely disown any such thing, and told me, he never did
give him any encouragement to proceed that way, because the
countries were not in a disposition for action, nor could be
put in readiness at that time. Says my lord Shaftesbury, It is
false: they are afraid to own it. And, says he, I have reason
to believe, there is some artificial bargain between his father
and him, to save one another: for when I have brought him to
action, I could never get him to put on, and therefore I
suspect him: and, says he, several honest men in the city have
puzzled me, in asking how the duke of Monmouth lived: says he,
They puzzled me, and I could not answer the question; for I
know he must have his living from the King; and says he, we
have different prospects; we are for a Commonwealth and he hath
no other design but his own personal interest, and that will
not go down with my people now (so he called them), they are
all for a commonwealth: and then, says he, It is to no purpose
for me to see him; it will but widen the breach, and I dare not
trust him to come hither. Says I, My lord, that's a good one
indeed! dare not you trust him, and yet do you send me to him
on this errand? Nay, says he, it is because we have had some
misunderstanding of late; but I believe he is true enough to
the interest. Says I, It is a great unhappiness to take this
time to fall out, and I think it is so great a design, that it
ought to be undertaken with the greatest strength and coalition
in the kingdom. Says he, My friends are now gone so far, that
they can't pull their foot back again without going further;
for, says he, it hath been communicated to so many that it is
impossible to keep it from taking air, and it must go on. Says
he, We are not so unprovided as you think for; there are so
many men, that you will find as brisk men as any in England.
Besides we are to have 1000 or 1500 horse, that are to be drawn
by insensible parties into town, that when the insurrection is,
shall be able to scour the streets and hinder them from forming
their forces against us. My lord, after great inlargement upon
this head, and heads of the like nature, I told him I would not
leave him thus, and that nothing should satisfy me, but an
interview between him and the lords. No, I could not obtain it:
but if I would go and tell them what a forwardness he was in,
and that, if they would do themselves right, by putting
themselves upon correspondent action in their respective
places, and where their interest lay, well; otherwise he would
go away without them: So I went again to the Duke of Monmouth,
I spake to him only (I never spake to my lord Russell then,
only we were together, but I had never come to any close
conjunction of counsels in my life with him at that time). Says
I to the duke, This man is mad, and his madness will prove
fatal to us all; he hath been in a fright by being in the
tower, and carries those fears about him that cloud his
understanding. I think his judgment hath deserted him, when he
goes about with those strange sanguine hopes that I can't see
what should support him in the ground of them.
Therefore says I, Pray will you give him a meeting? God-so says
the duke, with all my heart, and I desire nothing more. Now I
told him, I had been with my lord Shaftesbury, with other
inlargements that I need not trouble your lordship with; well,
says he, pray go to him, and try if it be possible to get a
meeting; so I went to him and told him; Says I, This is a great
unhappiness and it seems to be a great absurdity, that you are
so forward to act alone in such a thing as this. Pray, says I,
without any more to do, since you have this confidence to send
for me, let me prevail with you to meet them, and give them an
interview, or else you and I must break. I will no longer hold
any correspondence, unless it be so. Says he, I tell you they
will betray me. In short he did with much importunity yield
that he would come out the next night in a disguise. By this
time it was Saturday, I take it to be the 6th of Oct.: an
almanac will settle that: so the next night being Sunday and
the shops shut, he would come out in a concealment, be carried
in a coach, and brought to his own house, which he thought then
was safest. I came and gave the duke of Monmouth an account of
it; the duke I suppose conveyed the same understanding to my
lord Russell; and I suppose both would have been there
accordingly, to have given the meeting: but next morning I
found colonel Rumsey had left a note at my house, that the
meeting could not be that day. Then I went to the duke of
Monmouth and he had had the account before, that my lord
Shaftesbury did apprehend himself to be in some danger in that
house, and that the apprehension had occasioned him to remove;
but we should be sure to hear from him in two or three days. We
took it as a waiver, and thought he did from thence intend to
abscond himself from us, and it proved so to me, for from that
time I never saw him. But captain Walcot came to me, and told
me, that he was withdrawn, but it was for fear his lodging
might be discovered, but he did not doubt but in a week he
would let me know where his lodging was: but told me within
such a time, which I think was eight or ten days, there would
be a rising; and I told the duke of Monmouth and I believe he
told my lord Russell; and we believed his frenzy was now grown
to that height, that he would rise immediately and put his
design into execution: so we endeavoured to prevent it, upon
which my lord Russell (I was told) and the duke of Monmouth,
did force their way to my lord Shaftesbury's and did persuade
him to put off the day of his rendezvous. I had not this from
my lord Russell, for I had not spoke a word to him: but the
duke told me my lord Russell had been with him (I had indeed an
intimation, that he had been with him but the duke told me,
says he, I have not been with him, but my lord Russell was,
having been conveyed by colonel Rumsey). After this day was put
off, it seems it was put off with this condition, that those
lords and divers others should be in a readiness to raise the
country about that day fortnight, or thereabouts; for there was
not above a fortnight's time given: and, says the duke of
Monmouth, we have put it off but now we must be in action, for
there is no holding it off any longer. And says he, I have been
at Wapping all night, and I never saw a company of bolder and
brisker fellows in my life; and says he, I have been round the
Tower and seen the avenues of it; and I do not think it will be
hard, in a little time, to possess ourselves of it; but says
he, they are in the wrong way, yet we are engaged to be ready
for them in a fortnight, and therefore, says he, now we must
apply ourselves to it as well as we can. And thereupon I
believe they did send into the country and the duke of Monmouth
told me he spake to Mr. Trenchard, who was to take particular
care of Somersetshire, with this circumstance; Says he, I
thought Mr. Trenchard had been a brisker fellow; for when I
told him of it, he looked so pale, I thought he would have
swooned, when I brought him to the brink of action; and said, I
pray go and do what you can among your acquaintance; and truly
I thought it would have come then to action. But I went the
next day to him, and he said it was impossible, they could not
get the gentlemen of the country to stir yet.
LORD RUSSELL--My lord, I think I have very hard measure, here
is a great deal of evidence by hearsay.
LORD CHIEF-JUSTICE--This is nothing against you, I declare it
to the jury.
ATTORNEY-GENERAL--If you please, my lord, go on in the method
of time. This is nothing against you, but it's coming to you,
if your lordship will have patience, I assure you.
LORD HOWARD--This is just in the order it was done. When this
was put off, then they were in a great hurry; and Captain
Walcot had been several times with me, and discoursed of it.
But upon this disappointment they said, it should be the
dishonour of the lords, that they were backward to perform
their parts; but still they were resolved to go on. And this
had carried it to the latter end of October. About the 17th or
18th captain Walcot came to me, and told me, now they were
resolved positively to rise, and did believe that a smart party
might perhaps meet with some great men[16]. Thereupon I told
the duke of it; I met him in the street and went out of my own
coach into his, and told him there was some dark intimation, as
if there might be some attempt upon the king's person; with
that he struck his breast with a great emotion of spirit, and
said, God-so, kill the king! I will never suffer that. Then he
went to the play-house to find sir Thomas Armstrong and send
him up and down the city to put it off, as they did formerly;
and it was done with that success, that we were all quieted in
our minds, that at that time nothing would be done: but upon
the day the king came from Newmarket, we dined together; the
duke of Monmouth was one, and there we had a notion conveyed
among us, that some bold action should be done that day; which
comparing it with the king's coming, we concluded it was
designed upon the king. And I remember my lord Grey, says he,
By God, if they do attempt any such thing, it can't fail. We
were in great anxiety of mind, till we heard the king's coach
was come in, and sir Thomas Armstrong not being there, we
apprehended that he was to be one of the party (for he was not
there). This failing, it was then next determined (which was
the last alarum and news I had of it), to be done upon the 17th
of November, the anniversary of queen Elizabeth; and I remember
it by this remark I made myself, that I feared it had been
discovered, because I saw a proclamation a little before
forbidding public bonfires without leave of my lord mayor. It
made some impressions upon me that I thought they had got an
intimation of our intention, and had therefore forbid that
meeting. This therefore of the 17th of November being also
disappointed, and my lord Shaftesbury, being told things were
not ripe, in the country, took shipping and got away: and from
that time I heard no more of him till I heard he was dead.
Now, Sir, after this, we all began to lie under the same sense
and apprehensions that my lord Shaftesbury did, that we had
gone so far, and communicated it to so many, that it was unsafe
to make a retreat; and this being considered, it was also
considered, that so great an affair as that was, consisting of
such infinite particulars, to be managed with so much fineness,
and to have so many parts, it would be necessary, that there
should be some general council, that should take upon them the
care of the whole. Upon these thoughts we resolved to erect a
little Cabal among ourselves, which did consist of six persons;
and the persons were the duke of Monmouth, my lord of Essex, my
lord Russell, Mr. Hambden junr., Algernone Sidney, and myself.
ATTORNEY-GENERAL--About what time was this, when you settled
this council?
LORD HOWARD--It would have been proper for me in the next place
to tell you that, and I was coming to it. This was about the
middle of Jan. last (as near as I can remember); for about that
time we did meet at Mr. Hambden's house.
ATTORNEY-GENERAL--Name those that met.
LORD HOWARD--All the persons I named before; that was the duke
of Monmouth, my lord of Essex, my lord Russell, col. Sidney;
Mr. Hambden junr., and myself; when we met there, it was
presently agreed what their proper province was, which was to
have a care of the whole; and therefore it was necessary some
general things should fall under our care and conduct which
could not possibly be conducted by individual persons. The
things that did principally challenge this care, we thought
were these: Whether the insurrection was most proper to be
begun in London, or in the country, or both at one instant.
This stood upon several different reasons: It was said in the
country; and I remember the Duke of Monmouth insisted upon it,
that it was impossible to oppose a formed, well-methodized and
governed force, with a rabble hastily got together; and
therefore whatever number could be gathered in the city, would
be suppressed quickly, before they could form themselves:
therefore it would be better to begin it at such a distance
from the town, where they might have an opportunity of forming
themselves, and would not be subject to the like panic fear, as
in the town, where half an hour would convey the news to those
forces that in another half hour would be ready to suppress
them.
It was further suggested that if the meeting was remote from London, the
King must either give an opportunity for a rising there by withdrawing
troops, or else give the insurgents time to gather head. Other questions
discussed were what counties and towns were the fittest for action, what
arms were necessary, how the £20,000 or £30,000 which the Duke of
Monmouth considered necessary for the rising were to be raised; lastly
and chiefly how to 'order it, as to draw Scotland into a consent with
us.' Another meeting was held ten days afterwards at Lord Russell's,
when the same persons were present. It was then decided to send
messengers to Lord Argyle 'to settle an understanding with him, and
others to invite to England persons' that were judged most able to
understand the state of Scotland, and give an account of it. Aaron
Smith[17] was accordingly sent to Sir John Cochram[18], Lord
Melvile[19], and Sir ---- Campbell, and received sixty guineas from
Algernon Sidney for his expenses. It was agreed that the conspirators
should not meet together again till Aaron Smith's return. His absence
for a month caused some apprehensions; 'but if his letters had
miscarried, it could have done no great hurt, for it carried only a kind
of cant in it; it was under the disguise of a plantation in Carolina.'
ATTORNEY-GENERAL--You are sure my lord Russell was there?
LORD HOWARD--Yes, sir; I wish I could say he was not.
ATTORNEY-GENERAL--Did he sit there as a cypher? What did my
lord say?
LORD HOWARD--Every one knows my lord Russell is a person of
great judgment, and not very lavish in discourse.
SERJEANT JEFFREYS--But he did consent?
LORD HOWARD--We did not put it to the vote, but it went without
contradiction, and I took it that all there gave their consent.
SOLICITOR-GENERAL--The raising of money you speak of, was that
put into in any way?
LORD HOWARD--No, but every man was to put themselves upon
thinking of such a way, that money might be collected without
administering jealousy.
ATTORNEY-GENERAL--Were there no persons to undertake for a
fund?
LORD HOWARD--No, I think not. However it was but opinion, the
thing that was said was jocosely, rather than anything else,
that my lord of Essex had dealing in money, and therefore he
was thought the most proper person to take care of those
things; but this was said rather by way of mirth, than
otherwise.
Howard then withdrew to Essex to see after some private affairs; on
returning to town he heard that Smith had returned with Sir John Cochram
but did not see them. He then went to Bath and had nothing more to do
with the conspiracy.
LORD CHIEF-JUSTICE--My lord Russell, now if your lordship
pleases, is the time for you to ask him any questions.
LORD RUSSELL--The most he hath said of me, my lord, is only
hearsay; the two times we met, it was upon no formed design,
only to talk of news, and talk of things in general.
LORD CHIEF-JUSTICE--But I will tell you what it is he
testifies, that comes nearest your lordship, that so you may
consider of it, if you will ask any questions. He says after my
lord Shaftesbury went off (all before is but inducement, as to
anything that concerns your lordship, and does not particularly
touch you; after his going away he says) the party concerned
with my lord Shaftesbury did think fit to make choice of six
persons to carry on the design of an insurrection or rising, as
he calls it, in the kingdom; and that to that purpose, choice
was made of the Duke of Monmouth, my lord of Essex, your
lordship, my lord Howard, colonel Sidney, and Mr. Hambden.
LORD RUSSELL--Pray my lord, not to interrupt you, by what party
(I know no party) were they chosen?
LORD HOWARD--It is very true, we were not chosen by community,
but did erect ourselves by mutual agreement, one with another,
into this society.
LORD RUSSELL--We were people that did meet very often.
LORD CHIEF-JUSTICE--Will your lordship please to have any other
questions asked of my lord Howard?
LORD RUSSELL--He says it was a formed design, when we met about
no such thing.
LORD CHIEF-JUSTICE--He says that you did consult among
yourselves, about the raising of men, and where the rising
should be first, whether in the city of London, or in more
foreign parts, that you had several debates concerning it; he
does make mention of some of the duke of Monmouth's arguments
for its being formed in places from the city; he says you did
all agree, not to do anything further in it, till you had
considered how to raise money and arms: and to engage the
kingdom of Scotland in this business with you, that it was
agreed among you that a messenger should be sent into the
kingdom of Scotland. Thus far he goes upon his own knowledge,
as he saith; what he says after, of sending a messenger, is by
report only.
ATTORNEY-GENERAL--I beg your pardon, my lord.
LORD CHIEF-JUSTICE--It is so, that which he heard concerning
the sending of Aaron Smith.
ATTORNEY-GENERAL--Will you ask him any questions?
LORD RUSSELL--We met, but there was no debate of any such
thing, nor putting anything in method. But my lord Howard is a
man that hath a voluble tongue, talks very well, and is full of
discourse, and we were delighted to hear him.
ATTORNEY-GENERAL--I think your lordship did mention the
Campbells?
LORD HOWARD--I did stammer it out, but not without a
parenthesis, it was a person of the alliance, and I thought of
the name of the Argyles.
_Atterbury_ was called, and swore that Sir Hugh Campbell was in his
custody; was captured 'making his escape out of a woodmonger's house,
both he and his son'; he owned that he had been in London four days, and
that he and his son and Bailey came to town together.
_West[20] was then called and sworn._
ATTORNEY-GENERAL--That which I call you to, is to know whether
or no, in your managery of this plot, you understand any of the
lords were concerned, and which.
MR. WEST--My lord, as to my lord Russell, I never had any
conversation with him at all, but that I have heard this, that
in the insurrection in November, Mr. Ferguson and colonel
Rumsey did tell me that my lord Russell intended to go down and
take his post in the West, when Mr. Trenchard had failed them.
LORD CHIEF-JUSTICE--What is this?
ATTORNEY-GENERAL--We have proved my lord privy to the consults;
now we go about to prove the under-actors did know it.
WEST--They always said my lord Russell was the man they most
depended upon, because he was a person looked upon as of great
sobriety.
LORD RUSSELL--Can I hinder people from making use of my name?
To have this brought to influence the gentlemen of the jury,
and inflame them against me, is hard.
LORD CHIEF-JUSTICE--As to this, the giving evidence by hearsay
will not be evidence; what colonel Rumsey, or Mr Ferguson told
Mr. West, is no evidence.
ATTORNEY-GENERAL--It is not evidence to convict a man, if there
were not plain evidence before; but it plainly confirms what
the other swears: but I think we need no more.
JEFFREYS--We have evidence without it, and will not use
anything of garniture; we will leave it as it is, we won't
trouble your lordship any further. I think, Mr. Attorney, we
have done with our evidence.
The Lord Chief-Justice then recapitulated the evidence given against
Lord Russell, dwelling particularly on the traitorous character of
Rumsey's message, Russell's privity to Trenchard's rising, the alleged
written declaration, and the consultations as to the best method of
effecting a rising, and finally called on Lord Russell to make his
defence.
LORD RUSSELL--My lord, I cannot but think myself mighty
unfortunate, to stand here charged with so high and heinous a
crime, and that intricated and intermixed with the treasons and
horrid practices and speeches of other people, the king's
counsel taking all advantages, and improving and heightening
things against me. I am no lawyer, a very unready speaker, and
altogether a stranger to things of this nature, and alone, and
without counsel. Truly, my lord, I am very sensible, I am not
so provided to make my just defence, as otherwise I should do.
But, my lord, you are equal, and the gentlemen of the jury, I
think, are men of consciences; they are strangers to me, and I
hope they value innocent blood, and will consider the witnesses
that swear against me, swear to save their own lives; for
howsoever legal witnesses they may be accounted, they can't be
credible. And for col. Rumsey, who it is notoriously known hath
been so highly obliged by the king, and the duke, for him to be
capable of such a design of murdering the king, I think nobody
will wonder, if to save his own life, he will endeavour to take
away mine; neither does he swear enough to do it; and then if
he did, the time by the 13th of this king, is elapsed, it must
be as I understand by the law, prosecuted within six months;
and by the 25 Edw. III. a design of levying war is no treason,
unless by some overt-act it appear.[21] And, my lord, I desire
to know, what statute I am to be tried upon; for generals, I
think, are not to be gone upon in these cases.
The _Attorney-General_ replies that they are proceeding under the
Statute of 25 Edward III.; that he does not contend that a design to
levy war is treason, but to prepare forces to fight against the King is
a design within the Statute to kill the King; 'to design to depose the
King, to imprison the King, to raise the subjects against the King,
these have been settled by several resolutions to be within that
Statute, and evidences of a design to kill the King.'[22] A man cannot
be convicted of treason by one witness only, but several witnesses to
several acts which manifest the same treason are sufficient.
JEFFREYS--If my lord will call his witnesses----
LORD RUSSELL--This is tacking of two treasons together; here is
one in November by one witness, and then you bring in another
with a discourse of my lord Howard, and he says the discourse
passed for pleasure.
The Lord Chief-Justice and Jeffreys point out that it has been settled
that the two witnesses required in treason may be witnesses to different
acts, and that if Lord Russell admits the facts his counsel may be heard
on the point of law.
LORD CHIEF-JUSTICE--My lord, to hear your counsel concerning
this fact, that we cannot do, it was never done, nor will be
done. If your lordship doubts whether this fact is treason or
not, and desires your counsel may be heard to that, I will do
it.
SOLICITOR-GENERAL--Will your lordship please to call any
witness to the matter of fact?
LORD RUSSELL--It is very hard a man must lose his life upon
hearsay. Colonel Rumsey says he brought a message which I will
swear I never heard nor knew of. He does not say he spake to
me, or I gave him any answer. Mr. Sheppard remembers no such
thing; he was gone to and again. Here is but one witness, and
seven months ago.
ATTORNEY-GENERAL--My lord, if there is anything that is law,
you shall have it
LORD RUSSELL--My lord, colonel Rumsey, the other day before the
king [the information of Rumsey is signed by the Duke of
Abermarle and Sir Leoline Jenkins, Secretary of State] could
not say that I heard it, I was in the room, but I came in late,
they had been there a good while; I did not stay above a
quarter of an hour tasting sherry with Mr. Sheppard.
Here some of the judges desired that 25 Edw. III. c. 2 should be read,
which was done. The material parts of it declare 'that whereas divers
opinions have been before this time, in what case treason shall be said,
and in what not ... when a man doth compass or imagine the death of our
lord the king ... or if a man do levy war against our lord the king in
his realm, or be adherent to the king's enemies in his realm, giving to
them aid and comfort in the realm, or elsewhere, and thereof be
provable attainted of open deed by people of their condition,' it is
treason. On this the point of law is re-discussed with the same result
as before.
LORD RUSSELL--I do not know how to answer it. The points
methinks must be quite otherwise, that there should be two
witnesses to one thing at the same time.
ATTORNEY-GENERAL--Your lordship remembers, in my lord
Stafford's case, there was but one witness to one act in
England, and another to another in France.
LORD RUSSELL--It was to the same point.
ATTORNEY-GENERAL--To the general point, the lopping point.
LORD RUSSELL--I can prove I was out of town when one of these
meetings was; but Mr. Sheppard cannot recollect the day, for I
was out of town all that time. I never was but once at Mr.
Sheppard's and there was nothing undertaken of viewing the
guards while I was there. Col. Rumsey, can you swear
positively, that I heard the message, and gave any answer to
it?
LORD CHIEF-JUSTICE (to Col. Rumsey)--Sir, did my lord Russell
hear you when you delivered the message to the company? Were
they at the table, or where were they?
COLONEL RUMSEY--When I came in they were standing at the
fireside; but they all came from the fireside to hear what I
said.
LORD RUSSELL--Col. Rumsey was there when I came in.
COLONEL RUMSEY--No, my lord. The duke of Monmouth and my lord
Russell went away together; and my lord Grey, and sir Thomas
Armstrong.
LORD RUSSELL--The duke of Monmouth and I came together, and you
were standing at the chimney when I came in; you were there
before me. My lord Howard hath made a long narrative here of
what he knew. I do not know when he made it, or when he did
recollect anything; 'tis but very lately, that he did declare
and protest to several people, that he knew nothing against me,
nor of any Plot I could in the least be questioned for.
LORD CHIEF-JUSTICE--If you will have any witnesses called to
that, you shall, my lord.
LORD RUSSELL--My lord Anglesey, and Mr. Edward Howard.
My lord Anglesey stood up.
LORD CHIEF-JUSTICE--My lord Russell, what do you ask my lord
Anglesey?
LORD RUSSELL--To declare what my lord Howard told him about me,
since I was confined.
LORD ANGLESEY--My lord, I chanced to be in town the last week;
and hearing my lord of Bedford was in some distress and trouble
concerning the affliction of his son, I went to give him a
visit, being my old acquaintance, of some 53 years' standing, I
believe; for my lord and I were bred together at Maudlin
College in Oxon; I had not been there but a very little while,
and was ready to go away again, after I had done the good
office I came about; but my lord Howard came in, I don't know
whether he be here.
LORD HOWARD--Yes, here I am to serve your lordship.
LORD ANGLESEY--And sat down on the other side of my lord of
Bedford, and he began to comfort my lord; and the arguments he
used for his comfort, were, my lord, you are happy in having a
wise son, and a worthy person, one that can never sure be in
such a Plot as this, or suspected for it, and that may give
your lordship reason to expect a very good issue concerning
him. I know nothing against him, or any body else, of such a
barbarous design, and therefore your lordship may be comforted
in it. I did not hear this only from my lord Howard's mouth,
but at my own home on the Monday after, for I used to go to
Totteridge for fresh air; I went down on Saturday, this
happened to be on Friday (my lord being here, I am glad, for he
cannot forget this discourse); and when I came to town on
Monday I understood that my lord Howard upon that very Sunday
had been church with my lady Chaworth. My lady has a chaplain
it seems that preaches there and does the offices of the
church; but my lady came to me in the evening. This I have from
my lady----
LORD CHIEF-JUSTICE--My lord, what you have from my lady is no
kind of evidence at all.
LORD ANGLESEY--I don't know what my lord is, I am acquainted
with none of the evidence, nor what hath been done; But my lady
Chaworth came to me, and acquainted me there was some
suspicion----
JEFFREYS--I don't think it fit for me to interrupt a person of
your honour, my lord, but your lordship knows in what place we
stand here: What you can say of anything you heard of my lord
Howard, we are willing to hear, but the other is not evidence.
As the court will not let us offer hearsays, so neither must we
that are for the king permit it.
LORD ANGLESEY--I have told you what happened in my hearing.
_Mr. Howard_ was then called, and after describing steps he took to
prevail on Lord Howard to come over to the King's side, when 'I
sometimes found my lord very forward and sometimes softened him'; and
continuing--
LORD CHIEF-JUSTICE--Pray apply yourself to the matter you are
called for.
MR. HOWARD--This it may be is to the matter, when you have
heard me: for I think I know where I am, and what I am to say.
LORD CHIEF-JUSTICE--We must desire you not to go on thus.
MR. HOWARD--I must satisfy the world, as well as I can, as to
myself, and my family, and pray do not interrupt me. After
this, my lord, there never passed a day for almost----
LORD CHIEF-JUSTICE--Pray speak to this matter.
HOWARD--Sir, I am coming to it.
LORD CHIEF-JUSTICE--Pray, Sir, be directed by the Court.
HOWARD--Then now, sir, I will come to the thing. Upon this
ground I had of my lord's kindness, I applied myself to my lord
in this present issue, on the breaking out of this Plot. My
lord, I thought certainly, as near as I could discern him (for
he took it upon his honour, his faith, and as much as if he had
taken an oath before a magistrate), that he knew nothing of any
man concerned in this business, and particularly of my lord
Russell, whom he vindicated with all the honour in the world.
My lord, it is true, was afraid of his own person, and as a
friend and a relation I concealed him in my own house, and I
did not think it was for such a conspiracy, but I thought he
was unwilling to go to the Tower for nothing again;[23] so
that if my lord has the same soul on Monday, that he had on
Sunday, this cannot be true, that he swears against my lord
Russell.
LORD RUSSELL--Call Dr. Burnet.[24]
LORD RUSSELL--Pray, Dr. Burnet, did you hear anything from my
lord Howard, since the Plot was discovered, concerning me?
DR. BURNET--My lord Howard was with me the night after the Plot
broke out, and he did then, as he had done before, with hands
and eyes lifted up to heaven, say he knew nothing of any Plot,
nor believed any; and treated it with scorn and contempt.
LORD HOWARD--My lord, may I speak for myself?
JEFFREYS--No, no, my lord, we don't call you.
LORD CHIEF-JUSTICE--Will you please to have any other witnesses
called?
LORD RUSSELL--There are some persons of quality that I have
been very well acquainted and conversed with. I desire to know
of them, if there was anything in my former carriage to make
them think me like to be guilty of this? My lord Cavendish.
LORD CAVENDISH--I had the honour to be acquainted with my lord
Russell a long time. I always thought him a man of great
honour, and too prudent and wary a man to be concerned in so
vile and desperate a design as this, and from which he would
receive so little advantage; I can say nothing more, but that
two or three days since the discovery of this plot upon
discourse about Col. Rumsey my lord Russell did express
something, as if he had a very ill opinion of the man, and
therefore it is not likely he would entrust him with such a
secret.
LORD RUSSELL--Dr. Tillotson.[25]
LORD CHIEF-JUSTICE--What questions would you ask him, my lord?
LORD RUSSELL--He and I happened to be very conversant. To know
whether he did ever find anything tending to this in my
discourse.
LORD CHIEF-JUSTICE--My lord calls you as to his life, and
conversation and reputation.
DR. TILLOTSON--My lord, I have been many years last past
acquainted with my lord Russell, I always judged him a person
of great virtue and integrity, and by all the conversation and
discourse I ever had with him, I always took him to be a person
very far from any such wicked design he stands charged with.
LORD RUSSELL--Dr. Burnet, if you please to give some account of
my conversation.
DR. BURNET--My lord, I have had the honour to be known to my
lord Russell several years, and he hath declared himself with
much confidence to me, and he always upon all occasions
expressed himself against all risings; and when he spoke of
some people would provoke to it, he expressed himself so
determined against that matter that I think no man could do
more.
_Dr. Thomas Cox_ was then called and said that having seen a great deal
of Lord Russell during the six weeks 'before this plot came out,' he had
always found him against all kind of risings; he expressed distrust of
Rumsey.
He said, for my lord Howard, he was a man of excellent parts,
of luxuriant parts, but he had the luck not to be much trusted
by any party.
The _Duke of Somerset_ spoke shortly as to Lord Russell's honour,
loyalty, and justice.
FOREMAN OF THE JURY--The gentlemen of the jury desire to ask my
lord Howard something upon the point my lord Anglesey
testified, and to know what answer he makes to lord Anglesey.
LORD CHIEF-BARON--My lord, what say you to it, that you told
his father that he was a discreet man, and he needed not to
fear his engagement in any such thing?
LORD HOWARD--My lord, if I took it right my lord Anglesey's
testimony did branch itself into two parts, one of his own
knowledge, and the other by hearsay; as to what he said of his
own knowledge, when I waited upon my lord of Bedford, and
endeavoured to comfort him concerning his son, I believe I said
the words my lord Anglesey has given an account of, as near as
I can remember, that I looked upon his lordship as a man of
that honour, that I hoped he might be secure, that he had not
entangled himself in anything of that nature. My lord, I can
hardly be provoked to make my own defence, lest this noble lord
should suffer, so willing I am to serve my lord, who knows I
cannot want affection for him. My lord, I do confess I did say
it; for your lordship well knows under what circumstances we
were: I was at that time to outface the thing, both for myself
and my party, and I did not intend to come into this place, and
act this part. God knows how it is brought upon me, and with
what unwillingness I do sustain it; but my duty to God, the
king, and my country requires it; but I must confess I am very
sorry to carry it on thus far. My lord, I do confess I did say
so, and if I had been to visit my lord Pemberton, I should have
said so. There is none of those that know my lord Russell, but
would speak of my lord Russell, from those topics of honour,
modesty and integrity, his whole life deserves it. And I must
confess that I did frequently say, there was nothing of truth
in this, and I wish this may be for my lord's advantage. My
lord, will you spare me one thing more, because that leans hard
upon my reputation; and if the jury believe that I ought not to
be believed, for I do think the religion of an oath is not tied
to a place, but receives its obligation from the appeal we
therein make to God, and, I think, if I called God and angels
to witness to a falsehood, I ought not to be believed now; but
I will tell you as to that; your lordship knows that every man
that was committed, was committed for a design of murdering the
king; now I did lay hold on that part, for I was to carry my
knife close between the paring and the apple; and I did say
that if I were an enemy to my lord Russell, and to the Duke of
Monmouth, and were called to be a witness, I must have declared
in the presence of God and man, that I did not believe either
of them had any design to murder the king. I have said this,
because I would not walk under the character of a person that
would be perjured at the expense of so noble a person's life,
and my own soul.
_Lord Clifford_, _Mr. Suton Gore_, _Mr. Spencer_, and _Dr.
Fitz-Williams_ then all gave evidence as to Lord Russell's character in
general terms.
LORD CHIEF-JUSTICE--My lord, does your lordship call any more
witnesses?
LORD RUSSELL--No, my lord, I will be very short. I shall
declare to your lordship, that I am one that have always had a
heart sincerely loyal and affectionate to the king, and the
government the best government in the world. I pray as
sincerely for the king's happy and long life as any man alive;
and for me to go about to raise a rebellion, which I looked
upon as so wicked and unpracticable, is unlikely. Besides, if I
had been inclined to it, by all the observation I made in the
country, there was no tendency to it. What some hot-headed
people have done there, is another thing. A rebellion cannot be
made now as it has been in former times; we have few great men.
I was always for the government, I never desired anything to be
redressed, but in a parliamentary and legal way, I have always
been against innovations and all irregularities whatsoever; and
shall be as long as I live, whether it be sooner or later.
Gentlemen, I am now in your hands eternally, my honour, my
life, and all; and I hope the heats and animosities that are
amongst you will not so bias you, as to make you in the least
inclined to find an innocent man guilty. I call to witness
heaven and earth, I never had a design against the king's life,
in my life, nor never shall have. I think there is nothing
proved against me at all. I am in your hands. God direct you.
The _Solicitor-General_ then proceeds to sum up the case against Lord
Russell. The treason alleged against the prisoner is conspiring the
death of the King; the overt act proving the conspiracy is the
assembling in council to raise arms against the King and raise a
rebellion here. Rumsey was sent by Shaftesbury to Sheppard's house to
ask for news of Trenchard's rising at Taunton; the message was delivered
in Russell's presence and an answer was given as from them all that they
were disappointed there, and were not ready to rise. Monmouth, Grey, and
Armstrong went out to inspect the guards and reported that it was
feasible to surprise them. Russell was present and discussed a rising
with the rest; the rising was to be on the 19th of November. Sheppard
speaks to Ferguson engaging his rooms on behalf of Monmouth; there was
consequently a private meeting there which Russell attended. He confirms
Rumsey as to the inspecting of the guards, and speaks to the reading of
a paper, though he does not say that Russell was there when it was
read. Lord Howard 'gives you an account of many things, and many things
that he tells you are by hearsay. But I cannot but observe to you that
all this hearsay is confirmed by these two positive witnesses.'
Shaftesbury told Howard of the disappointment he had met with from noble
persons who would not join with him; Howard went from Shaftesbury to
Monmouth to expostulate with him; 'and Monmouth said he had always told
him (? Howard or Shaftesbury) he would not engage at that time.' This,
says the Solicitor-General, is confirmed by Rumsey's account of the
delivery of his message. Then follows the abandonment of the rising on
the 19th of November in consequence of the proclamation forbidding the
usual rejoicings on that occasion, and Shaftesbury's departure, leading
to the formation of the committee of six, of whom Lord Russell was one,
and who at one meeting discussed the proper place for the rising and at
another how best to obtain assistance from Scotland. Lord Russell states
that he only came to Sheppard's house by accident, about some other
business, but he came with Monmouth, and Monmouth came by appointment.
Surely this designed and secret meeting must have been intended for the
purposes for which it was used. Lord Russell objects that this evidence
proves no more than a conspiracy to levy war, which is not treason
within 25 Edw. III., and though it is treason within 13 Car. II., that
statute does not apply because the prosecution has not taken place
within six months of the offence. But the case is one of high treason
under 25 Edw. III., because 'to conspire to levy war, is an overt-act
to testify the design of the death of the King'; as to which see Lord
Cobham's case, 1 Jac.[26] A conspiracy to levy war against the king's
person tends to seizing the King, which has always been taken to be
treason. It may be different in the case of a conspiracy to levy war by
such an act as overthrowing all inclosures (which is levying war), which
by construction only is against the King, but such cases are to be
distinguished from the levying of war against the King himself; see the
case of Dr. Story. As was seen in Plunket's[27] case, to invite a
foreign invasion is to conspire the death of the King. Coke, in the
passage before that relied on by Lord Russell, admits that this is the
law. When Coke says that to levy war is not an overt act for compassing
the death of the King (that is, is not evidence of such an intention),
Sir Henry Vane's case shows he is wrong.
As to the killing of the King, I am apt to think that was below
the honour of the prisoner at the bar ... but this is equal
treason; if they designed only to bring the King into their
power, till he had consented to such things as should be moved
in Parliament, it is equally treason as if they had agreed
directly to assassinate him.
Lord Howard, it is true, testified repeatedly to Lord Russell's
innocence, but was not this the best way of concealing his own guilt?
Surely Dr. Burnet would look on himself as the last person to whom
conspirators would confess their crimes.
_Jeffreys_ followed, recapitulating a few of the facts, but adding
nothing to the Solicitor-General's argument.
LORD CHIEF-JUSTICE--Gentlemen of the jury, the prisoner at the
bar stands indicted before you of High treason in compassing
and designing the death of the king, and declaring of it by
overt-acts endeavouring to raise insurrections, and popular
commotions, in the kingdom here. To this he hath pleaded, Not
Guilty. You have heard the evidence that hath been against him;
it hath been at large repeated by the king's counsel which will
take off a great deal of my trouble in repeating it again. I
know you cannot but take notice of it, and remember it, it
having been stated twice by two of the king's counsel to you;
'tis long, and you see what the parties here have proved. There
is first of all Col. Rumsey, he does attest a meeting at Mr.
Sheppard's house, and you hear to what purpose he says it was;
the message that he brought, and the return he had; it was to
enquire concerning a rising at Taunton; and that he had in
return to my lord Shaftesbury was, that Mr. Trenchard had
failed them, and my lord must be contented; for it could not be
that time. You hear that he does say, that they did design a
rising; he saith there was a rising designed in November, I
think he saith the seventeenth, upon the day of queen
Elizabeth's birth.[28] You hear he does say there was at that
meeting some discourse concerning inspecting the king's guards,
and seeing how they kept themselves, and whether they might be
surprised, and this he says was all in order to a rising. He
says, that at this my lord Russell was present. Mr. Sheppard
does say, that my lord Russell was there; that he came into
this meeting with the duke of Monmouth and he did go away with
the duke of Monmouth he believes. He says there was some
discourse of a rising or insurrection that was to be procured
within the kingdom: but he does not tell you the particulars of
any thing, he himself does not. My lord Howard afterwards does
come and tell you of a great discourse he had with my lord
Shaftesbury, in order to a rising in the city of London; and my
lord Shaftesbury did value himself mightily upon 10,000 men he
hoped to raise; and a great deal of discourse, he had with my
lord Shaftesbury. This he does by way of inducement to what he
says concerning my lord Russell.
The evidence against him is some consults that there were by
six of them, who took upon them, as he says, to be a council
for the management of the insurrection, that was to be procured
in this kingdom. He instances in two that were for this
purpose, the one of them at Mr. Hambden's house, the other at
my lord Russell's house. And he tells you at these meetings,
there was some discourse of providing treasure, and of
providing arms; but they came to no result in these things. He
tells you that there was a design to send for some of the
kingdom of Scotland, that might join with them in this thing.
And this is upon the matter, the substance of the evidence,
that hath been at large declared to you by the king's counsel,
and what you have heard. Now gentlemen, I must tell you some
things it lies upon us to direct you in.
My lord excepts to these witnesses, because they are concerned,
by their own shewing, in this design. If there were any, I did
direct (some of you might hear me) yesterday, that that was no
sufficient exception against a man's being an evidence in the
case of treason, that he himself was concerned in it; they are
the most proper persons to be evidence, none being able to
detect such counsels but them. You have heard my lord Russell's
witnesses that he hath brought concerning them, and concerning
his own integrity and course of life, how it has been sober and
civil, with a great respect to religion, as these gentlemen do
all testify. Now the question before you will be, Whether upon
this whole matter you do believe my lord Russell had any design
upon the king's life, to destroy the king, or take away his
life, for that is the material part here. It is used and given
you (by the king's counsel) as an evidence of this, that he did
conspire to raise an insurrection, and to cause a rising of the
people, to make as it were a rebellion within the nation, and
to surprise the king's guards, which, say they, can have no
other end, but to seize and destroy the king; and 'tis a great
evidence (if my lord Russell did design to seize the king's
guards, and make an insurrection in the kingdom) of a design to
surprise the king's person. It must be left to you upon the
whole matter: you have not evidence in this case as there was
in the other matter that was tried in the morning or
yesterday,[29] against the conspirators to kill the king at the
Rye. There was a direct evidence of a consult to kill the king,
that is not given you in this case: This is an act of
contriving rebellion, and an insurrection within the kingdom,
and to seize his guards, which is urged an evidence, and surely
is in itself an evidence, to seize and destroy the king.
Upon this whole matter, this is left to you. If you believe the
prisoner at the bar to have conspired the death of the king
and in order to that, to have had these consults, that these
witnesses speak of, then you must find him guilty of this
treason that is laid to his charge.
Then the Court adjourned till four o'clock in the afternoon,
when the Jury brought the said Lord Russell in guilty of the
said High Treason.
On July 14th Lord Russell was brought up before the Recorder for
sentence, and, demanding to have the indictment read, pleaded that no
intention to kill the King had been proved. The Recorder, however,
pointed out that the point had already been taken, and that he was bound
by the verdict of the jury. He then condemned the prisoner in the usual
way to be drawn, hanged, and quartered. This sentence was commuted to
beheading, and was carried out on 21st July.
Lord Russell was accompanied from Newgate to Lincoln's Inn Fields, where
the execution took place, by Tillotson and Burnet. He spoke a few words
on the scaffold, expressing his affection for the Protestant religion,
and denying knowledge of any plot against the King's life, or the
government. He left a paper of considerable interest from a general
point of view justifying his action in relation to the Popish Plot and
the Exclusion Bill. As to his trial, he asserts that he never saw
Sheppard but once, and then there was no undertaking as to seizing the
guards and no one appointed to view them. It may have been discoursed
of then and at other times, but he never consented to it, and once at
Shaftesbury's he strongly protested against it. He had an intention to
try some sherry when he went to Sheppard's; but when he was in town
the duke of Monmouth came to me and told me he was extremely
glad I had come to town, for my lord Shaftesbury and some hot
men would undo us all, if great care be not taken; and
therefore for God's sake use your endeavours with your friends
to prevent anything of this kind. He told me there would be
company at Mr. Sheppard's that night, and desired me to be at
home in the evening, and he would call me, which he did: And
when I came into the room I saw Mr. Rumsey by the chimney,
although he swears he came in after; and there were things said
by some with much more heat than judgment, which I did
sufficiently disapprove, and yet for these things I stand
condemned. It is, I know, inferred from thence, and was pressed
to me, that I was acquainted with these heats and ill designs,
and did not discover them; but this is but misprision of
treason at most. So I die innocent of the crime I stand
condemned for, and I hope nobody will imagine, that so mean a
thought could enter into me, as to go about to save myself by
accusing others; the part that some have acted lately of that
kind has not been such as to invite me to love life at such a
rate.... I know I said but little at the trial, and I suppose
it looks more like innocence than guilt. I was also advised not
to confess matter of fact plainly, since that must certainly
have brought me within the guilt of misprision[30]. And being
thus restrained from dealing frankly and openly, I chose rather
to say little, than to depart from ingenuity, that by the grace
of God I had carried along with me in the former parts of my
life; so could easier be silent, and leave the whole matter to
the conscience of the jury, than to make the last and solemnest
part of my life so different from the course of it, as the
using little tricks and evasions must have been.
Lord Russell's attainder was reversed by a private Act of 1 Will. and
Mary on the ground that the jury were not properly returned, that his
lawful challenges to them for want of freehold were refused, and that he
was convicted 'by partial and unjust constructions of the law.'
FOOTNOTES:
[1] Sir Francis Pemberton was born 1625, entered Emmanuel College 1640,
entered the Inner Temple 1645, was called 1654, was made a bencher 1671,
a serjeant 1675, and was imprisoned by the House of Commons for an
alleged breach of privilege in the same year. He was made a Judge of the
King's Bench in 1679, and took part as such in several trials connected
with the Popish Plot; he was discharged in 1680, returned to the bar,
and replaced Scroggs as Chief-Justice of the King's Bench in 1681. He
was moved to the Common Pleas in 1683, to allow Sir Edmund Saunders, who
had advised in the proceedings against the City of London, to act as
judge in the case. He was dismissed from his office of judge in the same
year, about five weeks after Lord Russell's trial. Returning to the bar,
he helped to defend the Seven Bishops, but was imprisoned by the
Convention Parliament for a judgment he had given six years before
against Topham, the serjeant-at-arms, who had claimed to be without his
jurisdiction. He bore on the whole a high character for independence and
honesty; and it is curious to learn that he lived to advise the Earl of
Bedford whether Lord Russell's attainder would prevent his son
succeeding to the earldom.
[2] Sir Robert Sawyer was born in 1633, entered Magdalene College,
Cambridge, in 1648, where he was chamber-fellow with Pepys, joined the
Inner Temple and went the Oxford circuit. He was elected to the House of
Commons for Chipping Wycombe in 1673, and assisted in drafting the
Exclusion Bill. He appeared for the Crown in most of the State Trials of
this period. He afterwards led in the defence of the Seven Bishops, took
part in the Convention Parliament, and was expelled from the House on
account of his conduct in Armstrong's case. He was re-elected and became
Chief-Justice of the King's Bench in 1691, and died in 1692.
[3] Heneage Finch, first Earl of Aylesford, was born about 1647: he was
educated at Westminster and Christ Church. He entered the Inner Temple,
became Solicitor-General in 1679, being elected to the House of Commons
for the University of Oxford in the same year. He was deprived of office
in 1686, and defended the Seven Bishops. He sat in the House of Commons
in 1685, in all Parliaments from the Convention Parliament (1689) till
he became a peer in 1703, under the title of Baron Guernsey. He was made
Earl of Aylesford on the accession of George I. (1714), and died in
1719.
[4] See vol. i. p. 240.
[5] Francis North, Lord Guilford (1637-1685), the third son of the
fourth Lord North, was educated at various Presbyterian schools and St.
John's College, Cambridge. He was called to the bar in 1661, and with
the help of the Attorney-General, Sir Geoffrey Palmer, soon acquired a
large practice. After holding various provincial posts, he became
Solicitor-General in 1671. He entered Parliament in 1673, and became
Attorney-General the same year, becoming Chief-Justice of the Common
Pleas in 1675. He always strongly supported Charles II.'s government,
temporising during the Popish Plot, and being chiefly responsible for
the execution of Colledge. He became Lord Keeper in 1682, and was raised
to the peerage in 1683: but during his tenure of office was much vexed
by intrigues, particularly by the conduct of Jeffreys, who had succeeded
him in the Common Pleas. He is now chiefly remembered on account of the
very diverting and interesting life of him written by his brother Roger.
[6] Pollexfen. See Note in Alice Lisle's trial, vol. i. p. 241.
[7] Sir John Holt (1642-1710) was called to the bar in 1663. He appeared
for Danby on his impeachment in 1679, and was assigned to be counsel for
Lords Powys and Arundell of Wardour, who were impeached for
participation in the Popish Plot in 1680, but against whom the
proceedings were stopped after Stafford's conviction. He appeared for
the Crown in several trials preceding that of Lord Russell, and having
expressed an opinion in favour of the Quo Warranto proceedings against
the City of London was appointed Recorder, knighted, and called as a
serjeant in 1685. He was deprived of the recordership after a year on
refusing to pass sentence of death on a deserter, a point which owed its
importance to Charles II.'s attempts to create a standing army; but as
he continued to be a serjeant, he was unable thenceforward to appear
against the Crown. He acted as legal assessor to the Convention called
after the flight of James II., as a member of the House of Commons took
a leading part in the declaration that he had abdicated, and was made
Chief-Justice in 1689.
[8] This decision and unspecified 'partial and unjust constructions of
law' were the professed ground on which Russell's attainder was
subsequently reversed: see _post_, p. 56. Sir James Stephen (_Hist.
Crim. Law_, vol. i. p. 412) expresses an opinion that the law upon the
subject at the time was 'utterly uncertain.'
[9] Lord Grey was the eldest son of the second Baron Grey of Werk. He
succeeded his father in 1675: he voted for Stafford's conviction, and
was a zealous exclusionist. He was convicted of debauching his
sister-in-law, Lady Henrietta Berkeley, in 1682, and consequently took
no part in Russell's plot. He was arrested in connection with the Rye
House Plot, but escaped to Holland, whence he returned to take part in
Monmouth's rising. He was captured after Sedgemoor, but his life was
spared on his being heavily fined and compelled to give evidence against
his friends. He left England, but returned with William III., during
whose reign he filled several offices. He was created Earl of
Tankerville in 1695, and died in 1701.
[10] Lord Howard, the third Lord Howard of Escrick, was born about 1626.
He entered Corpus College, Cambridge. He served in Cromwell's
Life-guards. As a sectary he seems to have favoured the Restoration. He
was committed to the Tower for secret correspondence with Holland in
1674. After succeeding to the peerage he furthered the trial of his
kinsman Stafford. After giving evidence in this trial (see p. 15), he
gave similar evidence against Algernon Sidney, was pardoned, and died in
obscurity at York in 1694.
[11] The Earl of Essex was the son of the Lord Capel who was one of
Charles I.'s most devoted adherents and lost his life after his vain
defence of Colchester in 1648. The younger Lord Capel was made Earl of
Essex at the Restoration. Though opposed to the Court party by
inclination, he served on various foreign missions, and was
Lord-Lieutenant of Ireland from 1672 to 1677. On his return to England
he associated himself with the Country party, and on Danby's fall was
placed at the head of the Treasury Commission, and thereafter followed
Halifax and Sunderland in looking to the Prince of Orange for ultimate
assistance rather than Shaftesbury, who favoured the Duke of Monmouth.
He left the Treasury in 1679, supported Shaftesbury in 1680 on the
Exclusion Bill, and appeared as a 'petitioner' at Oxford in 1680. He
voted against Stafford. He was arrested as a co-plotter with Russell on
Howard's information, and committed suicide in the Tower on the day of
his trial (see p. 16).
[12] Algernon Sidney (1622-1683) was the son of the second Earl of
Leicester, and commanded a troop in the regiment raised by his father,
when he was Lord-Lieutenant in Ireland, to put down the Irish rebellion
of 1641. He afterwards came over to England, joined the Parliamentary
forces, and was wounded at Marston Moor. He continued serving in various
capacities, returning for a time to Ireland with his brother, Lord
Lisle, who was Lord-Lieutenant. He was appointed one of the
commissioners to try Charles I., but took no part in the trial. He was
ejected from Parliament in 1653, and adopted a position of hostility to
Cromwell. He remained abroad after the Restoration, though not excepted
from the Act of Indemnity, and lived a philosophic life at Rome and
elsewhere. He tried to promote a rising against Charles in Holland in
1665, and opened negotiations with Louis XIV. during the French war. He
returned to England in 1677 to settle his private affairs, and stayed on
making friends with the leaders of the Opposition, and vainly trying to
obtain a seat in the House of Commons. He quarrelled with Shaftesbury,
who denounced him as a French pensioner (which he probably was), and
seems to have had no connection with his plots. He was arrested on 27th
June, tried by Jeffreys on 7th November, condemned, and executed on 7th
December 1683.
[13] John Hampden (1656-1696) was the second son of Richard Hampden.
After travelling abroad in his youth he became the intimate friend of
the leaders of the Opposition on his return to England in 1682. He was
arrested with them and tried in 1684, when he was imprisoned on failing
to pay an exorbitant fine. After Monmouth's rising he was tried again
for high treason. As Lord Grey was produced as a second witness against
him, Lord Howard, who had testified before, being the first, he pleaded
guilty, implicating Russell and others by his confession. He was
pardoned, and lived to sit in Parliament after the Revolution; but
falling into obscurity failed to be elected for his native county in
1696, and committed suicide.
[14] Rumsey had been an officer in Cromwell's army, and had served in
Portugal with distinction. He obtained a post by Shaftesbury's
patronage; and with West, a barrister, was responsible for the Rye House
Plot. According to his own account, he was to kill the King, whilst
Walcot was to lead an attack on the guards. He appeared as a witness in
the trials of Walcot and Algernon Sidney, as well as in the present one.
His last appearance before the public was as a witness against Henry
Cornish, one of the leaders of the opposition of the City to the Court
party, whom he and one Goodenough accused of participation in Russell's
plot, and who was tried and executed in 1685. He had offered to give
evidence against Cornish before, in 1683, but the second witness
necessary to prove treason was not then forthcoming. The unsatisfactory
nature of Rumsey's evidence led to Cornish's property being afterwards
restored to his family, while, according to Burnet, 'the witnesses were
lodged in remote prisons for their lives.' Cornish was arrested, tried
and executed within a week.
[15] Walcot was an Irish gentleman who had been in Cromwell's army. He
frequented West's chambers, where he met West and Rumsey, who were the
principal witnesses against him. Rumsey's story was that though Walcot
objected to killing the King, he promised to attack the guards. He was
tried and convicted earlier on the same day.
[16] The following passages seem to give a true account of the measure
of the complicity of Russell and his friends with the Rye House Plot.
[17] Aaron Smith is first heard of as an obscure plotter in association
with Oates and Speke. He was prosecuted in 1682 for supplying seditious
papers to Colledge, and sentenced to fine and imprisonment. He managed
to escape, however, before sentence was pronounced, and was arrested in
connection with the present trial, when, as nothing could be proved
against him, he was sentenced for his previous offence. After the
Revolution he was appointed solicitor to the Treasury; but failing to
give a good account of various prosecutions which he set on foot, he was
dismissed in 1697.
[18] Sir John Cochram or Cochrane was the second son of William
Cochrane, created Earl of Dundonald in 1689. He escaped to Holland at
the time of Russell's trial, took part in Argyle's insurrection in 1685,
turned approver, and farmed the poll tax after the Revolution, but was
imprisoned in 1695 on failing to produce proper accounts.
[19] George Melville was the fourth baron and the first Earl of
Melville. He supported the Royalist cause in Scotland, and tried to
induce a settlement with the Covenanters before the battle of Bothwell
Bridge. He escaped from England after the discovery of the Rye House
Plot, and appeared at the Court of the Prince of Orange. After the
Revolution he held high offices in Scotland till the accession of Anne,
when he was dismissed. He died in 1707.
[20] West was a barrister at whose chambers in the Temple Rumsey,
Ferguson, and other plotters used to meet, and it was alleged that the
Rye House Plot was proposed: said by Burnet to have been 'a witty and
active man, full of talk, and believed to be a determined atheist.'
[21] As to what is treason under 25 Edward III., see _post_, p. 36.
Under 13 Car. II. c. 1 it is treason, _inter alia_, to devise the
deposition of the King; but the prosecution must be within six months of
the commission of the offence.
[22] The question was, 'What is included in the expressions "Imagine the
King's death" and "Levying war against the King"?' The Attorney-General
was evidently placing a gloss on them, which was perhaps justified from
a wider point of view than a merely legal one. However that may be, the
same process was continued till it culminated in the theory of
'constructive treason,' according to which it was laid down in 1794 that
a man who intended to depose the King compassed and imagined his death.
The matter was eventually decided in 1795 by a statute which made such
an intent and others of the same kind treason of themselves. See further
Stephen's _History of Criminal Law_, vol. ii. pp. 243-283.
[23] He had been twice sent to the Tower: once in 1674 in consequence of
the discovery of a secret correspondence with Holland; once in 1681 on a
false charge by Edward Fitzharris of writing the _True Englishman_, a
pamphlet advocating the deposition of Charles II. and the exclusion of
the Duke of York, which was in fact written by Fitzharris, it is
suggested with the purpose of imputing its authorship to the Whigs. It
is no doubt the second of these occasions that is referred to.
[24] Burnet had at this time retired into private life, having lost the
Court favour which he had gained at an earlier period. He had been an
intimate friend of Stafford, and was living on terms of the closest
intimacy with Essex and Russell at the time of their arrest. After
Russell's execution he left the country, and eventually found his way to
the Hague just before the Revolution, where he performed services for
William and Mary requiring the utmost degree of confidence. He landed at
Torbay with William, soon became Bishop of Salisbury, and until the end
of William's life remained one of his most trusted councillors. He
retained a position of great influence under Anne, and died in 1715. In
relation to his evidence in this case, it is interesting to read in his
history that Russell was privy to a plot for promoting a rebellion in
the country and for bringing in the Scotch. He says further: 'Lord
Russell desired that his counsel might be heard to this point of seizing
the guards; but that was denied unless he would confess the fact, and he
would not do that, because as the witnesses had sworn it, it was false.
He once intended to have related the whole fact just as it was; but his
counsel advised him against it'; in fact Russell admitted that he knew
of a traitorous plot, and did not reveal it. 'He was a man of so much
candour that he spoke little as to the fact; for since he was advised
not to tell the whole truth, he could not speak against that which he
knew to be true, though in some particulars it had been carried beyond
the truth.' See too _post_, p. 55.
[25] John Tillotson (1630-1694) was the son of a weaver of Sowerby. He
entered Clare Hall in 1647, and became a a fellow of the same college in
1651. He received an early bias against Puritanism from Chillingworth's
_Religion of Protestants_, and his intercourse with Cudworth and others
at Cambridge. He became tutor to the son of Prideaux, Cromwell's
Attorney-General in 1656; he was present at the Savoy Conference in
1661, and remained identified with the Puritans till the passing of the
Act of Uniformity in 1662; afterwards he became curate of Cheshunt in
Hertfordshire and rector of Keddington in Suffolk. In 1664 he was known
as a celebrated preacher, and was appointed preacher in Lincoln's Inn.
In 1678 and 1680 he preached sermons to the House of Commons and the
King respectively, exhorting the former to legislation against Popery,
and pointing out to the latter that whilst Catholics should be
tolerated, they should not be allowed to proselytise. He attended
Russell on the scaffold, and with Burnet was summoned before the Council
on a suspicion of having helped to compose Russell's published speech.
He acquired great influence after the Revolution; and having exercised
the archiepiscopal jurisdiction of the province of Canterbury during
Sancroft's suspension, became himself archbishop in 1691.
[26] Henry Brooke, the eighth Lord Cobham, after losing Court favour on
the death of Elizabeth, was accused in 1603 of plotting with Aremberg,
the Spanish ambassador, to place Arabella Stuart on the throne, and to
kill the King. His evidence contributed largely to the conviction of Sir
Walter Raleigh of the same treason, and he was tried and convicted the
next day. He was kept in prison till 1617, when he was allowed to go to
Bath on condition that he returned to prison; but he was struck by
paralysis on his way back and died in 1619. See vol. i. pp. 19-57.
[27] Oliver Plunket (1629-1681) was Roman Catholic bishop of Armagh and
titular primate of Ireland. He attained these positions in 1669; in 1674
he went into hiding when the position of the Catholics in England drew
attention to their presence in Ireland. He was arrested, on a charge of
complicity with the Popish Plot in 1678, and eventually tried in the
King's Bench for treason in 1681 by Sir Francis Pemberton, when the law
was laid down as stated above. He was convicted, hung, beheaded and
quartered.
[28] Rumsey says the 19th, Howard the 17th. The 17th was the anniversary
of the Queen's accession.
[29] Thomas Walcot and William Hone, tried for and convicted of
participation in the Rye House Plot.
[30] See _ante_, p. 42.
THE EARL OF WARWICK
March 28, 1699. About eleven of the clock the Lords came from
their own house into the court erected in Westminster hall, for
the trials of Edward, earl of Warwick and Holland, and Charles
lord Mohun[31], in the manner following. The lord high
steward's gentleman attendants, two and two. The clerks of the
House of Lords, with two clerks of the crown in the Courts of
Chancery and King's Bench. The masters of 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, the lord high steward, of England, alone.
When the lords were seated on their proper benches, and the
lord high steward on the wool-pack; the two clerks of the crown
in the courts of Chancery and King's Bench, standing before the
clerk's 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 King's 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 King's 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[32] asked the peers to be pleased to stand
up uncovered, while the King's commission was read. And the peers stood
up, uncovered, and the King's commission was read in Latin, by which it
was set out that the Grand Jury of the County of Middlesex had found a
true bill of murder against the Earl of Warwick and Lord Mohun, which
the peers were commissioned to try. Proclamation that all persons there
present should be uncovered, was then made, and the return of
_certiorari_, bringing the indictment before the House of Lords, was
read in Latin.
Order was then made that the judges might be covered, and the governor
of the tower was ordered to produce the earl of Warwick; and he was
brought to the bar by the deputy-governor, having the axe carried before
him by the gentleman gaoler, who stood with it at the bar, on the right
hand of the prisoner, turning the edge from him.
The lord high steward then informed the prisoner that he had been
indicted of murder by the Grand Jury for the county of Middlesex, on
which indictment he would now be tried; and proceeded--
Your lordship is called to answer this charge before the whole
body of the house of peers as assembled in parliament. It is a
great misfortune to be accused of so heinous 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 tried before so noble,
discerning, and equal judges, that nothing but your guilt can
hurt you. No evidence will be received, but what is warranted
by law; no weight will be laid upon that 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 counsel in your defence, as to the fact (which
cannot be allowed by law), and their lordships have already
assigned you counsel if any matter of law should arise.
After a little more to the same effect the indictment was read, first in
Latin, then in English, and the earl of Warwick pleaded Not Guilty.
The indictment was then opened by Serjeant Wright,[33] to the effect
that the prisoner was accused of murdering Richard Coote on the 30th of
October, by stabbing him, together with Lord Mohun, Richard French,
Roger James, and George Dockwra.
The _Attorney-General_[34] then opened the case, as follows:--
ATTORNEY-GENERAL--May it please your lordships, I am of counsel
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 tried 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.
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 Locket's who kept the
Greyhound-tavern in the Strand, and there they staid till it
was very late; about twelve 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 the 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 away, spoke to them to stop and go no further, for there
should be no quarreling 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 Warwick, 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 surgeon'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. Amy's, the surgeon at
the Bagnio 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 captain 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 lord's 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 enquiry, there was no blood found upon Mr. French'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, were
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 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 will 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.
LORD HIGH STEWARD--Give him his oath. (Which the clerk did.)
ATTORNEY-GENERAL--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.
LORD HIGH STEWARD--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.
ATTORNEY-GENERAL--Is your name Samuel Cawthorne?
CAWTHORNE--Yes, my lord.
ATTORNEY-GENERAL--Where do you live?
CAWTHORNE--With Mr. Locket at Charing-cross.
ATTORNEY-GENERAL--Did you live with him at the Greyhound tavern
in the Strand the latter end of October last?
CAWTHORNE--Yes, I did.
ATTORNEY-GENERAL--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 happened while
they were there, and when they went away?
CAWTHORNE--It was Saturday night, the 29th of October last.
ATTORNEY-GENERAL--Pray tell my lords the whole of your
knowledge in the matter.
CAWTHORNE--There came my lord of Warwick, my lord Mohun,
captain Coote, capt. French, and captain Dockwra, the 29th of
October last, in the evening, to my master's house at the
Greyhound tavern in the Strand.
ATTORNEY-GENERAL--How long were they there, and what time of
night came they in?
CAWTHORNE--About 8 o'clock at night, my lord Warwick, my lord
Mohun, capt. French, and capt. Coote, came in.
ATTORNEY-GENERAL--What day do you say it was?
CAWTHORNE--Saturday, the 29th of October last.
ATTORNEY-GENERAL--How long did they continue there?
CAWTHORNE--It was between one and two the next morning before
they went away.
ATTORNEY-GENERAL--Was any body sent for to come to them there?
CAWTHORNE--Yes, Mr. James.
ATTORNEY-GENERAL--What time was that?
CAWTHORNE--About twelve of the clock.
ATTORNEY-GENERAL--Did he stay with them till they went away?
CAWTHORNE--Yes.
ATTORNEY-GENERAL--What did you observe pass in the company
while they were there?
CAWTHORNE--I did not observe any thing of quarrel, not so much
as an angry word amongst them, till they came down to the bar
and were going away; when they came down to the bar they
ordered 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 captain Coote went away in; and my lord Warwick and
my lord Mohun bid the chairmen carry them home.
ATTORNEY-GENERAL--Were there then any other chairs at the door?
CAWTHORNE--There were two more chairs at the door, and another
was called for.
ATTORNEY-GENERAL--Did you hear any directions given where they
should carry them?
CAWTHORNE--My lord Warwick and my lord Mohun bid them carry
them home.
ATTORNEY-GENERAL--Did you hear my lord Warwick or my lord Mohun
particularly, and which, say whither they would be carried?
CAWTHORNE--I did hear my lord Mohun say, captain Coote should
go and lie with him, or he would go and lie with capt. Coote
that night, for there should be no quarrelling.
ATTORNEY-GENERAL--Did they upon that go away?
CAWTHORNE--Mr. French and Mr. Coote were in chairs before my
lord Mohun or my lord Warwick, or any of the rest.
ATTORNEY-GENERAL--What then happened upon their going into the
chairs?
CAWTHORNE--My lord Mohun came out to them and swore there
should be no quarrel that night, but he would send for the
guards and secure them.
ATTORNEY-GENERAL--What happened then?
CAWTHORNE--Upon that, both of them came out of their chairs and
came into the house, and there they came to the bar three of
them in the passage by the bar, and three of them behind that
passage.
ATTORNEY-GENERAL--Pray, will you tell what did really pass
throughout the whole transaction? What was done after they came
in again into the house?
CAWTHORNE--After that, I was bid to call for six chairs, if I
could get no coaches, and so I did; and when I had brought what
chairs I could get, and returned to the bar I heard the swords
clash; when the swords were drawn I cannot say, nor by whom, it
might be by all the six, for aught I know, because I was in the
street to call the chairs, and when I came back to the house, I
was in hopes all had been quieted, for their swords were
putting up: and when they went away in the chairs, I did hope
they went away friendly.
ATTORNEY-GENERAL--Pray, how did they go away? who went
together?
CAWTHORNE--My lord of Warwick, my lord Mohun, and captain
Coote went in the first three chairs, them three together, and
bid the chairmen go home; the sixth chair was not then come.
ATTORNEY-GENERAL--When that chair came, pray what directions
were given to it?
CAWTHORNE--I did not hear them give the chairmen any directions
at all.
ATTORNEY-GENERAL--Do you know any thing more that was done
after this time?
CAWTHORNE--No, my lord, not after they went away; after I
returned with the chairs, it was in two minutes' time that they
went away.
ATTORNEY-GENERAL--My lords, I suppose he knows no more of the
matter.
LORD HIGH STEWARD--Will you then ask him no more questions, Mr.
Attorney?
ATTORNEY-GENERAL--No, my lords, unless this noble lord shall
ask him any questions, upon which we shall have occasion to
examine him.
LORD HIGH STEWARD--My lord, has your lordship any questions to
ask this witness? For now is your time, the king's counsel
having done examining him.
EARL OF WARWICK--I desire to ask him, whether I did not bid the
chairmen go home?
LORD HIGH STEWARD--If your lordship please to propose your
question to me, I will require an answer to it from the
witness, and it will be the better heard by my lords.
EARL OF WARWICK--My lord, I desire to know of this man,
whether, when I went away in the chair from his master's house
I did not bid the chairmen go home?
LORD HIGH STEWARD--Witness, you hear my lord's question, what
say you to it?
CAWTHORNE--Yes; my lord of Warwick did bid the chairmen go
home.
EARL OF WARWICK--My lord, I have another question to ask him.
Whether he knows of any quarrel there was between me and Mr.
Coote at that time, or any other time; because we both used to
frequent that house?
CAWTHORNE--No, my lords, I never heard any angry words between
my lord Warwick and Mr. Coote in my life.
[Then the lords towards the upper end of the House complaining
that they did not hear his Grace, the Lord High Steward was
pleased to repeat the question thus:]
LORD HIGH STEWARD--When my lord of Warwick bid the chairmen go
home, or at any other time, did you observe that there had been
any quarrel between his lordship and Mr. Coote?
EARL OF WARWICK--My lord, I desire he may be asked, since we
both used that house, Whether that night, when I went away, or
before or after, I had any quarrel with Mr. Coote?
LORD HIGH STEWARD--The question my lord desires you, that are
the witness, to answer, is, Whether you did hear any
quarrelling or angry words to pass between my lord Warwick and
Mr. Coote that night before or after they came down, or when
they went away, or at any other time?
CAWTHORNE--No, my lord, I never heard any angry words pass
between them then, nor ever at any time before in all my life,
but I always looked upon them to be very good friends.
EARL OF WARWICK--I desire he may be asked, Whether Mr. Coote
did not come to that house in my company, and whether he did
not frequently come to that house?
CAWTHORNE--Yes; they used to be there every day almost, and
they came that night together in company.
EARL OF WARWICK--I desire he may be asked, whether I have not
been frequently in his company there?
CAWTHORNE--Yes; I say very frequently, every day almost,
sometimes twice a-day.
LORD HIGH STEWARD--Would your lordship ask him any other
question?
EARL OF WARWICK--My lord, I desire he may be asked this
question, whether he knows of any particular kindness between
Mr. Coote and me?
LORD HIGH STEWARD--Do you know of any particular kindness
between my lord Warwick and Mr. Coote, the gentleman that was
killed?
CAWTHORNE--Yes, my lord, there was always a great kindness
between them, as I observed: it ever was so, and I never heard
angry words pass between them, but they were very good friends
constantly; I waited upon them generally when they were at my
master's house, which was every day almost.
EARL OF WARWICK--I desire to know of this witness, whether he
does not remember, or can name, some particular kindnesses that
passed between Mr. Coote and me?
LORD HIGH STEWARD--Can you specify any particular instances of
kindness that passed between my lord Warwick and Mr. Coote?
CAWTHORNE--Yes; my lord of Warwick used generally to pay the
reckoning for Mr. Coote, and he did so at this time.
EARL OF WARWICK--My lord, I desire he may be asked, between
whom he apprehended the quarrel to be at this time?
LORD HIGH STEWARD--You say, friend, there were swords drawn and
a quarrelling at the bar; can you tell between whom the quarrel
was?
CAWTHORNE--My lord Warwick, my lord Mohun, and capt. Coote,
were all on one side, and the other three were on the other
side.
EARL OF WARWICK--Who were the two persons that it was
apprehended the quarrel was between? I desire he may be asked.
LORD HIGH STEWARD--You say, there were three on the one side,
and three on the other; pray, between whom did you apprehend
the quarrel to be?
CAWTHORNE--I believe the quarrel was between Mr. Coote and Mr.
French.
EARL OF WARWICK--My lord, I desire to know of this witness,
what words he heard Mr. Coote say after he and Mr. French
returned into the house and came out of the chairs.
LORD HIGH STEWARD--What do you say to the question my lord
proposes?
CAWTHORNE--I heard Mr. Coote say, he would laugh when he
pleased, and he would frown when he pleased, God damn him.
EARL OF WARWICK--My lord, I desire to know, who he thinks those
words were addressed to?
LORD HIGH STEWARD--To whom did Mr. Coote speak these words?
CAWTHORNE--Whether he spoke them particularly to Mr. French or
to the other two gentlemen who were on the other side of the
bar, I cannot directly tell.
EARL OF WARWICK--I desire to know of him, whether Mr. Coote was
not one of the three that was on the outside of the bar?
CAWTHORNE--Yes, my lord of Warwick, my lord Mohun, and capt.
Coote, were of the outside of the bar.
EARL OF WARWICK--Was capt. Coote with me in the beginning of
the night at that house?
CAWTHORNE--Yes, he came at the beginning of the night with my
lord of Warwick.
EARL OF PETERBOROUGH--My lords, I desire to ask this witness
one question.
LORD HIGH STEWARD--I think it is proper, my lords, in point of
method, to let both sides have done before any questions be
asked by any of my noble lords.
EARL OF PETERBOROUGH--I did apprehend my lord of Warwick had
done.
LORD HIGH STEWARD--No, my lord, not as yet; pray, my lord of
Warwick, what other questions has your lordship to ask of this
witness?
EARL OF WARWICK--My lord, I desire he may be asked particularly
this question, whether he perceived any quarrel particularly
between me and capt. Coote when we went out of the house?
LORD HIGH STEWARD--You hear the question, did you perceive any
quarrel between my lord Warwick and Mr. Coote before they went
out of the house?
CAWTHORNE--No, I did not; nor ever saw any quarrel between them
in my life.
EARL OF WARWICK--I desire to know who paid the reckoning that
night?
CAWTHORNE--The reckoning was called for before I came in to
take it; and though I think my lord of Warwick paid for Mr.
Coote, yet I cannot so directly tell, because it was collected
before I came into the room to receive it.
LORD HIGH STEWARD--My lord, have you any thing more to ask this
witness?
EARL OF WARWICK--No, my lord, at present, that I think of.
LORD HIGH STEWARD--My lord Peterborough, your lordship desired
to ask a question, will you please to propose it now?
The Earl of Peterborough reminded the witness that he had said that
there were two sides, and that Coote and Lord Warwick were on the same
side. He asked what Cawthorne meant by this, and he explained that all
six had their swords drawn; that Mohun, Warwick, and Coote were on one
side of the bar, and the three captains, James, French, and Dockwra on
the other: the cause of quarrel must have occurred above stairs, but he
heard nothing pass between them.
LORD HIGH STEWARD--But you have not given a satisfactory answer
to that question which the noble lord, my lord Peterborough,
asked you, What reason you had to apprehend that the noble lord
the prisoner at the bar, and capt. Coote were of a side?
CAWTHORNE--My lord Mohun came to the chairside, when capt.
Coote and capt. French were got into the two first chairs, and
told capt. Coote, that there should be no quarrel that night
but that they three, my lord Warwick, my lord Mohun, and he,
should go home together; and I took them three to be of a side,
because they were on the outside of the bar together; and when
they all went away, their three chairs went away first, all
three together.
LORD HIGH STEWARD--Is that all the reason you can give why you
say, they were three and three of a side?
CAWTHORNE--Yes, my lord, I did apprehend it so.
ATTORNEY-GENERAL--If my noble lords have done with their
questions I desire to ask this witness another question; my
lords, I think this person says, that there was a quarrel at
the bar of the house, and swords drawn, and as he apprehended,
three were on the one side, and three on the other; but if I
take him right, I do not see that he has given your lordships
any manner of satisfaction, what reason he had to apprehend
there were three and three of a side; or, which will be very
material in this case, if your lordships can get to the
knowledge of it, which three were on the one side, and which
three were on the other; or indeed, whether there were three
and three of a side, as your lordships will have reason
by-and-bye to enquire a little further into that matter. My
lords, I desire he may be asked this plain question, What words
or other passages he did perceive, that made him apprehend
there was a quarrel between them, and they were three and three
of a side?
CAWTHORNE--I apprehended it from the words that Mr. Coote said,
That he would laugh when he pleased, and frown when he pleased.
ATTORNEY-GENERAL--Pray, my lord, I desire he may be asked, who
those words were spoken to, and who they were applied to?
CAWTHORNE--They were spoke to Mr. James, Mr. French, and Mr.
Dockwra, who were within side of the bar.
ATTORNEY-GENERAL--Did he apply those words to all those
particular persons?
CAWTHORNE--Yes, as I thought, for they three were within the
bar; my lord Warwick, my lord Mohun, and Mr. Coote, were
without the bar.
ATTORNEY-GENERAL--Pray, my lord, I desire he may be asked this
question. Was that before the swords were drawn, or afterwards?
CAWTHORNE--It was before.
ATTORNEY-GENERAL--Then I desire he may be asked, whether the
swords were drawn upon those words?
CAWTHORNE--No, my lord; the time of drawing the swords was when
I went out to call chairs and coaches; and I know not who drew
the swords first, or when they were drawn; but when I came back
I found them all drawn, and I heard them clashing.
ATTORNEY-GENERAL--Upon the oath you have taken, was those words
that you speak of Mr. Coote's that he would laugh when he
pleased, and frown when he pleased, before the swords were
drawn, or after the swords were drawn?
CAWTHORNE--Before the swords were drawn; for I did not see the
swords drawn till I came back.
In answer to Lord Wharton, the witness said that Mohun and Warwick had
threatened to send for a file of musketeers, and Mohun had done all he
could to pacify the quarrellers, and he 'particularly had his finger
pricked with endeavouring to cross their swords, and keeping them from
fighting; which was all he got from it.' His hand was bloody; but the
witness did not see him hurt, as he was outside at the time. He
received their reckoning just before they came down to the bar and
stayed there two or three minutes afterwards. It was after Coote came
out of his chair that he heard him speak the words he had deposed to; no
reply was made to them. Mohun, Warwick, and James had all tried to stop
the quarrel and threatened to send for the guard; this was before the
swords were drawn downstairs.
ATTORNEY-GENERAL--Pray, my lord, let him be asked this
question, Was it after they were three on the one side, and
three on the other, that my lord Mohun and my lord Warwick
spoke those words?
CAWTHORNE--I apprehend the words were spoke by Mr. Coote, That
he would laugh when he pleased, and frown when he pleased,
before the swords were drawn.
LORD HIGH STEWARD--But that which my lords desire to know is,
What the time was when my lord Warwick and my lord Mohun
declared their desire to part them and make them friends;
whether before or after the swords drawn?
CAWTHORNE--Before and after; for I was absent when the swords
were drawn.
EARL RIVERS--He says, that after my lord Mohun and my lord
Warwick threatened to send for the musqueteers, they promised
to be quiet. I desire to know who he means by they?
CAWTHORNE--Mr. James called to me, and said, I need not go and
call for the guards, for the quarrel was over. There is one
thing more that I forgot, my lord: After my lord Mohun and my
lord Warwick were gone away in their chairs, and Mr. Coote, I
heard Mr. Dockwra say to capt. James and capt. French, they did
not care a farthing for them, they would fight them at any
time.
LORD HIGH STEWARD--Who were together then?
CAWTHORNE--Capt. James, Mr. French, and Mr. Dockwra, after my
lord Mohun and my lord Warwick were gone with capt. Coote.
LORD HIGH STEWARD--Then Mr. French was with them? Mr. Dockwra
said so?
CAWTHORNE--Yes, my lord.
LORD WHARTON--If I apprehend him aright, as to what he says
now, my lord of Warwick, my lord Mohun, and capt. Coote, were
gone away at that time.
CAWTHORNE--Yes, they were gone away in the three first chairs,
which my lord Mohun bid go home.
LORD WHARTON--Who does he say spoke those words?
LORD HIGH STEWARD--You hear my noble lord's question, who spoke
those words? Repeat them again.
CAWTHORNE--When my lord Warwick, my lord Mohun, and capt.
Coote, were gone, I heard Mr. Dockwra say to Mr. French and Mr.
James, We don't care a farthing for them, we will fight them at
any time.
ATTORNEY-GENERAL--I desire to know, whether this witness
testified any thing of this matter when he was examined before
the coroner?
CAWTHORNE--No; I forgot those words when I was examined before
the coroner.
ATTORNEY-GENERAL--How soon after your examination did you
recollect yourself as to what you now speak?
CAWTHORNE--The next day after.
He had not mentioned the words he now said were spoken by Dockwra either
at the inquest or at the trial at the Old Bailey.
_Thomas Browne was sworn._
LORD HIGH STEWARD--What question do you ask this witness, Mr.
Attorney?
ATTORNEY-GENERAL--That he would acquaint your lordships,
whether he carried Mr. Richard Coote, the person that was
slain, upon the 29th or 30th of October, from the Greyhound
tavern in the Strand, and to what place he carried him?
LORD HIGH STEWARD--You hear the question; pray speak so loud
that my lords may all hear what you say.
BROWNE--My Lords, I was between the hours of one and two in the
morning, on Sunday the 30th of October last, with my fellows
and our chair, at the Buffler's Head Tavern at Charing-cross,
and I heard some people at Locket's, at the Greyhound in the
Strand, calling coach coach, a pretty while; but there were no
coaches in the street, nor that came to them; when they could
not get coaches then they called out for chairs; and we coming
to the door with our chair, there were four other chairs there,
and six gentlemen stood in the passage; and then it was said,
there was not chairs enough, and there wanted one more, and
they stood discoursing; and the first man came into my chair,
who was capt. Coote, and my lord of Warwick he got into
another; When the door of the chair was shut up, we asked
whither we should go; but my lord Mohun came and bid open the
chair again; and we did so, and he returned into the house, and
there was some discourse between them standing at the bar in
the entry. Mr. Coote came out again and came into my chair, and
my lord Mohun and my lord of Warwick went into two others; Mr.
Coote bid me carry him into Leicester fields, and to make all
the haste I could; my lord of Warwick and my lord Mohun being
in the next chairs, asked him, Whither are you a-going, and
called out twice, and he said, To Leicester fields; pray do
not, says my lord of Warwick, but come along with us, and let
it alone till to-morrow; but he bid us go on; and as we were
turning up St. Martin's Lane, by the Cross Keys tavern, my lord
Mohun, and my lord Warwick called out to us to stop, and their
chairs came up to the back door of the Cross Keys tavern, and
there all the three chairs were set on a-breast in St. Martin's
Lane, and while they were talking together, there came by three
chairs on the other side of the way; and Mr. Coote bid us take
up and make all the haste we could to get before them into
Leicester fields, so taking up the chair again, Mr. Coote bid
us make haste, and if we could go no faster, he swore, damn
him, he would run his sword in one of our bodies: There were
two chairs before me, and my lord Mohun and my lord Warwick
followed in two chairs after me; and when we came to the corner
of Leicester fields, at Green street end, all the three chairs
were set down a-breast again, and Mr. Coote put his hand in his
pocket, and took out half a guinea to pay, and said he had no
silver; and my lord of Warwick spoke to my lord Mohun, who
took out three shillings out of his pocket, who said, there was
for my lord Warwick, captain Coote, and himself; and when they
were gone out, I took my box and my pipe, and filled my pipe,
and took the lanthorn and lighted it, and by that time I had
lighted my pipe, I heard a calling out, Chair, chair, again,
towards the upper end of the square; so I took my chair, and
there was one of the chairs that was not gone; and so we came
up to the upper end of the fields, and they called to us to
bring the chairs over the rails; we told them we did not know
how to do that, for we should not be able to get them back
again; at last we did get over the rails, and made up close to
the place where we heard the noise, for we could see nothing,
it being a very dark night; and when we came up close to them,
by our lanthorn there were two gentlemen holding up Mr. Coote
under their arms, and crying out, My dear Coote, My dear Coote!
ATTORNEY-GENERAL--Pray, who were those two gentlemen?
BROWNE--I did not know them, one was in red cloaths, and the
other had gold lace, and they would have had me have taken Mr.
Coote into my chair; but seeing him bloody, and not able to
help himself, I said I would not spoil my chair, and so would
not meddle with him; but they said they would make me any
satisfaction for my chair, and desired me to take him in; but
he gave himself a spring from them, and we found he was too
heavy for us to lift over the rails, and all we could do could
not make him sit in the chair, but the chair was broken with
endeavouring to place him there; and they said if we would
carry him to a surgeon's, they would give us £100 security;
but we finding it impossible, the watch was called for, but
nobody would come near, for they said it was out of their ward,
and so they would not come anigh me; and I staid about half an
hour with my chair broken, and afterwards I was laid hold upon,
both I and my partner, and we were kept till next night eleven
a-clock; and that is all the satisfaction that I have had for
my chair and every thing.
ATTORNEY-GENERAL--Pray, my lord, I desire he may recollect
himself; for we do apprehend it is very material, who it was
that desired to take Mr. Coote into the chair.
BROWNE--I cannot tell who they were, it was so very dark I
could only see their cloaths.
ATTORNEY-GENERAL--Did you see the earl of Warwick there?
BROWNE--No, Sir, he was not there; one of them, I tell you, had
officers' cloaths on, red lined with blue, and the other had
gold lace on; there was nobody there that held him up but them
two.
MARQUIS OF NORMANBY--He says he saw two persons holding up Mr.
Coote; it would be very well to have that matter very well
settled, who those two persons were; I desire to know how he is
sure my lord of Warwick was not one of them two?
BROWNE--I know my lord of Warwick very well, and I am sure he
was neither of the two.
DUKE OF LEEDS--I would know what light he had to discern it so
well by, that he can be sure my lord of Warwick was not there;
for he says it was a very dark night, and yet he describes the
particular persons that held Mr. Coote up.
BROWNE--Yes, my lord, I am sure my lord of Warwick was none of
them.
DUKE OF LEEDS--How could you distinguish in so dark a night,
the colours of people's cloaths?
BROWNE--With the candle that I had lighted in my lanthorn.
DUKE OF LEEDS--He could not know any of the persons unless he
held a lanthorn to their faces, or knew them very well before.
LORD HIGH STEWARD--My lord Warwick, will your lordship ask this
witness any questions?
EARL OF WARWICK--My lord, I desire he may be asked, Whether I
did not bid him stop at St. Martin's-lane end, and do all that
I could to hinder Mr. Coote from going any further, but to go
home?
BROWNE--The earl of Warwick, and my lord Mohun, as they turned
up the lane, asked Mr. Coote, whither he was going? And when he
said to Leicester-fields, they desired him to let it alone till
to-morrow; and my lord Mohun said he should go home with him;
but the other bid us go on, and said he would not go to his
lodgings, but that they would make an end of it that night;
still they called to him again, Dear Coote, let us speak a word
with you; and as the chairs came to the back-door of the
Cross-keys tavern, there they stood all of a breast, and they
both of them spoke to him, and stood a pretty while there, and
in the mean time three chairs passed by on the other side; he
commanded us to take up, and carry him away to Leicester-fields
immediately, and overtake the other chairs, or he would run one
of us into the body.
LORD HIGH STEWARD--Would your lordship ask him any more
questions?
EARL OF WARWICK--No, my lord.
ATTORNEY-GENERAL--My lord, I observe, he says they discoursed
some time together while they stopped in St. Martin's-lane; I
desire that he may be asked, Whether he can tell what that
discourse was?
BROWNE--I could not well hear, they whispered together, but I
could hear my lord Mohun, and my lord of Warwick, desire capt.
Coote to go home, and let the business alone till another time.
ATTORNEY-GENERAL--I desire he may explain himself, what that
business was that they would have put off till to-morrow.
BROWNE--I know not what it was; I heard of no anger betwixt
them, but they were as good friends, for anything I know to the
contrary, as ever they were in their lives or as ever I see any
men.
ATTORNEY-GENERAL--Our next witness is William Crippes. [Who was
sworn.]
LORD HIGH STEWARD--What do you ask this man, Mr. Attorney?
ATTORNEY-GENERAL--Pray, will you give my lords here an account
who you carried to Leicester-fields, the 29th or 30th of
October, and what happened in your knowledge at that time?
CRIPPES--Captain Coote was the first man that went into the
chair when we came to the Greyhound tavern; afterwards he came
out again, and when we took him up the second time, he was the
first man that set out; and he bid us carry him to
Leicester-fields; and when we came to the corner of St.
Martin's-lane, we turned up that way; and my lord of Warwick,
and my lord Mohun, called to us, being in chairs behind, to
know whither we were going, and desired to speak with captain
Coote; and he said he was going to Leicester-fields; and when
they asked, what to do? He said, to end the business: they
desired him to put it off till to-morrow; and while they were
discoursing about it in St. Martin's-lane, there passed by
other three chairs, which, when captain Coote saw, he bid us
take up and overtake them, and go faster, or he would run one
of us into the body: so we went on, and at the lower end of
Leicester-fields we set him down; and the other two gentlemen,
my lord Warwick and my lord Mohun, were there set down, and
went lovingly together, for any thing that I saw, up the
pavement of the square, towards the upper end; and in a little
time we heard a noise of calling for chairs towards the upper
end, and when we came there with the chair, we were bid to lift
over the chair within the rails; and when we said it was hard
to be done, they insisted upon it, and we did come in; and when
we came there we saw two gentlemen holding up captain Coote,
and would have had us taken him into the chair; we saw there
was a great deal of blood, but I never heard how it came, and
they would have had us carried him to a French surgeon's, and
proffered any money.
ATTORNEY-GENERAL--My lord, I desire to know, who they were that
desired him to be carried to the surgeon?
LORD HIGH STEWARD--You hear the question, what say you?
CRIPPES--I cannot tell, my lord; one of them had something of
lace upon him, but it was so dark that I could hardly see my
hand, and therefore I cannot tell who they were; and when there
was an objection made, that the chairs would be spoiled, they
said we need not question our chair, they would give us £100
security to answer any damages, if we would but carry him; so
we endeavoured to put him into the chair, but could not; and
so we called out to the watch, to have had some help; but they
said it was none of their ward, and so they would not come to
us; so the gentlemen went away, and we left them, and went and
called a surgeon, who, when he came, said, he was a dead man,
and we were secured till the next day.
ATTORNEY-GENERAL--Pray, my lord, I desire he may be asked, Were
there not other chairs in that place at the time?
CRIPPES--There was one in the Field besides, and no more that I
could see; they all went away but us two.
ATTORNEY-GENERAL--What distance of time was there between their
setting down in Leicester-fields, and their calling the chairs
again?
CRIPPES--Not a quarter of an hour.
ATTORNEY-GENERAL--What became of the three chairs that passed
by you in St. Martin's-lane?
CRIPPES--They got before us; but what became of them afterwards
I cannot tell.
ATTORNEY-GENERAL--Did they come from the same place, the tavern
in the Strand that you were at?
CRIPPES--Yes, I believe they did, my lord; for capt Coote bid
us follow them, and threatened us if we did not make greater
haste.
ATTORNEY--GENERAL--Do you know my lord of Warwick?
CRIPPES--Yes, he had whitish cloaths on; and none but he had
such clothes on as those were.
LORD HIGH STEWARD--Will your lordship ask this witness any
questions?
EARL OF WARWICK--My lord, I desire he may be asked, Whether I
did not bid him stop? and, whether I did not say, they should
not go to quarrel that night?
ATTORNEY-GENERAL--My lord, I desire to know of him, directly
and downright, Whether my lord of Warwick was not one of them
that held him when he was within the rails of the fields?
CRIPPES--No, he was not; he was neither of them; for the one of
them was too big for him, and the other was too little for my
lord Mohun.
ATTORNEY-GENERAL--Now we call the chairman that carried the
earl of Warwick into Leicester-fields, James Crattle.
(He was sworn.)
ATTORNEY-GENERAL--Will you tell my lords what you know of any
person that you carried the 29th or 30th of October last, from
the Greyhound tavern in the Strand, and who it was, and whither
you carried him?
CRATTLE--I was going along Charing-cross, between one and two
in the morning, the 30th of October, last, and I heard a chair
called for at Locket's at the Dog tavern; and thither I and my
partner went, and we took up the gentleman, and carried him to
Leicester-fields.
ATTORNEY-GENERAL--Who was that gentleman?
CRATTLE--It was my lord of Warwick.
ATTORNEY-GENERAL--What time of night do you say it was?
CRATTLE--It was about one or two in the morning.
ATTORNEY-GENERAL--What day of the week was it?
CRATTLE--It was Saturday night and Sunday morning.
ATTORNEY-GENERAL--Whither did you carry him?
CRATTLE--Into Green-street, towards the lower end of
Leicester-square.
ATTORNEY-GENERAL--What chairs were there more there?
CRATTLE--There was one that captain Coote was in, and another
that my lord Mohun was in, and we went away all together.
ATTORNEY-GENERAL--Were there no other chairs?
CRATTLE--I did not know who went in the other chairs, but there
were three other chairs that passed by us at St Martin's-lane,
and we followed after them to Leicester-fields.
ATTORNEY-GENERAL--Pray what became of you after you had set
down your fare?
CRATTLE--We were discharged and paid; the other three went up
towards my lord of Leicester's; but we were coming away, and in
a little time we heard the noise of calling chairs! chairs!
again, and there were two chairs did come up, Thomas Browne's
and ours; my lord of Warwick called our chair, and we took him
into it, and he bid us carry him to the Bagnio in Long-acre;
and when we came there we knocked at the door, and his hand was
bloody, and he asked us if we had any handkerchief to bind up
his hand.
ATTORNEY-GENERAL--Was there any other chairs at the door of the
Bagnio, at the same time when you came there?
CRATTLE--Yes, there was another chair there at the door at the
same time, and we set down both together.
ATTORNEY-GENERAL--Pray whence came that chair?
CRATTLE--Indeed, I do not know.
ATTORNEY-GENERAL--Who were the chairmen that carried that
chair?
CRATTLE--Indeed, my lord Mohun and my lord Warwick were the
only persons that I knew of all the company.
ATTORNEY-GENERAL--What sort of gentleman was the other, that
went out of the other chair into the house?
CRATTLE--He was a pretty tall man; when he was in we went away;
I only can say, I saw my lord of Warwick go into the house.
ATTORNEY-GENERAL--Did you take any notice of any sword that my
lord of Warwick had in his hand at that time?
CRATTLE--No; I cannot say I did take any notice of any sword,
only that there was a handkerchief desired.
ATTORNEY-GENERAL--Pray, did you hear no noise at all in the
field, till you heard chairs called for again?
CRATTLE--No; I cannot say I heard any noise in the field.
ATTORNEY-GENERAL--Did you apprehend there was any fighting?
CRATTLE--No, I knew nothing at all of it; but upon the calling
of chairs again, and my lord Warwick coming along, we took him
in, and he bid us go to the Bagnio, and thither we went.
ATTORNEY-GENERAL--My lord, we have done with this witness.
LORD HIGH STEWARD--My lord Warwick, will you ask this witness
any questions?
EARL OF WARWICK--No, my lord.
_Gibson_, the other chairman who carried the Earl of Warwick, was then
called, and gave substantially the same evidence as the last witness.
_Applegate_ carried Lord Mohun to Leicester Fields, and corroborated
the account of the journey thither given by the other witnesses.
ATTORNEY-GENERAL--What then happened afterwards, can you tell?
APPLEGATE--I cannot tell whether I had lighted my pipe, or was
just lighting it, when I heard chairs called again; upon which
we run up with our chairs towards the upper end of the fields,
and there I did see my lord of Warwick within the rails, who
bid us put over our chair into the fields; but we told him, if
we did, we could not get it over again; and so we went with our
chair to the corner of the fields; and when we came there,
there came out captain French, who bid us open our chairs, and
let him in, for he did believe he was a dead man; and upon that
we did take him in, and he bid us carry him with all the speed
we could to the Bagnio in Long-acre, and my lord of Warwick got
into another chair behind; so we went to Long-acre; and when we
came to the door of the Bagnio and captain French came out of
the chair, he was so weak that he fell down upon his knees; and
when he came out, I asked who should pay me, and desired to be
discharged; and the earl of Warwick said, Damn ye, call for
your money to-morrow; so they both went in at the Bagnio door
together.
ATTORNEY-GENERAL--Pray, who called for the chair first, captain
French, or my lord of Warwick, in the fields?
APPLEGATE--I cannot tell; but when I brought up my chair, I
first saw my lord of Warwick, and he would have had me lifted
the chair over the rails, and I told him we could not get it
over again, and so went up to the upper end of the fields.
ATTORNEY-GENERAL--If you first spoke with my lord of Warwick,
why did you not carry my lord of Warwick?
APPLEGATE--Indeed I cannot tell; but I suppose it was because
he did not come so soon out of the fields as captain French, or
did not come the same way.
ATTORNEY-GENERAL--Pray, do you remember anything that happened
just at their carrying capt. French away?
APPLEGATE--Before he went into the chair, he stopped and would
have pulled off his cloaths, but we would not let him.
ATTORNEY-GENERAL--Did you see any sword capt. French had?
APPLEGATE--I did see no sword that I can say directly was a
sword; but capt. French had something in his hand, but what it
was I cannot tell.
ATTORNEY-GENERAL--What was it that he said to you, when he
first went into the chair?
APPLEGATE--He desired to be carried to the Bagnio; for he said
he believed he was a dead man.
ATTORNEY-GENERAL--Pray friend, recollect yourself, if you heard
him say any thing at all when he first went into the chair at
the Greyhound tavern?
APPLEGATE--I did not hear him mention any thing at all.
ATTORNEY-GENERAL--Pray what did you hear my lord of Warwick say
at that time?
APPLEGATE--Truly, I cannot say I heard him mention any thing at
all neither; but I did hear my lord Mohun say, when he could
not prevail, in St. Martin's-lane, with captain Coote to go
home, that if they did go he would go and see it.
ATTORNEY-GENERAL--If they did go; who did he mean by they?
APPLEGATE--My lord Warwick and captain Coote that were in the
other chairs; there was nobody else to speak to.
ATTORNEY-GENERAL--Was there any talk of fighting or
quarrelling?
APPLEGATE--No, indeed, I do not know of any difference there
was between them.
LORD HIGH STEWARD--My lord Warwick, will your lordship ask this
witness any questions?
EARL OF WARWICK--My lord, I desire he may be asked, Whether I
did not endeavour to put off the going into Leicester-fields,
and to have all things let alone till to-morrow.
APPLEGATE--My lord, I cannot say any thing of that; but I did
hear my lord Mohun beg heartily of captain Coote to go home,
and let the business alone till another time; and indeed I
think, I never heard a man beg more heartily for an alms at a
door, than he did, that they might not go into the fields then;
but I cannot say that I heard any thing that my lord of Warwick
said about it.
LORD HIGH STEWARD--Will your lordship ask him any other
questions?
EARL OF WARWICK--No, my lord.
Catro, who was the second chairman who carried Lord Mohun's chair,
corroborated Applegate's evidence. Palmer, Jackson, and Edwards were
three chairmen who had helped to carry French, James, and Dockwra to
Leicester Fields; but they had nothing to add to the evidence already
given.
_Pomfret_ was a servant at the Bagnio in Long Acre. In answer to the
Attorney-General he said:--
My lord, on Sunday the 30th of October last, between two and
three in the morning, there came to my master's door the earl
of Warwick, and knocked at the door, and there was capt. French
with him; and when they were let in, my lord of Warwick told me
that capt. French was wounded, and he himself had a wound, and
he desired that my master might be called up for to dress the
wounds; especially, because capt. French was very much wounded;
which accordingly was done in about a quarter of an hour after
they were brought in.
ATTORNEY-GENERAL--Did he desire to be concealed when he was
come in?
LORD HIGH STEWARD--Of whom do you speak, Mr. Attorney?
ATTORNEY-GENERAL--My lord of Warwick.
POMFRET--He did desire, that if any body asked for him, it
should be said he was not there.
ATTORNEY-GENERAL--Pray in what condition did my lord of Warwick
seem to be in at that time?
POMFRET--He seemed to be very much concerned at that time, and
his right hand, in which he had his sword, and which was drawn,
was very much bloody.
ATTORNEY-GENERAL--Was the sword bloody that he had in his hand?
POMFRET--The blade was bloody; but whether it was all over
bloody, I cannot tell; there was besides some blood upon the
shell; it was very near all over bloody, as I remember.
ATTORNEY-GENERAL--Pray, friend, consider what you swore at the
Coroner's Inquest about the blood upon the sword.
POMFRET--Indeed I cannot say it was bloody all along the blade;
but there was blood upon the shell, and there was blood upon
the inside: it was so, to the best of my remembrance.
ATTORNEY-GENERAL--What condition was Mr. French's sword in?
POMFRET--He had a drawn sword in his hand, but I did not
perceive it had any blood upon it; it was a large blade.
ATTORNEY-GENERAL--How do you know what sort of sword Mr.
French's was, and in what condition it was?
POMFRET--He desired me to take notice of it next morning, and I
did so; and there was no blood upon it.
ATTORNEY-GENERAL--How came you to be desired to take notice of
what passed there about the swords?
POMFRET--My lord, there was three of them the next day, and
one, it was said, was Mr. Coote's, and another of them was my
lord of Warwick's, which I do believe was bloody from the point
upwards, very near; but I cannot directly say but that was
afterwards.
ATTORNEY-GENERAL--Who brought in that sword that you say was
Mr. Coote's?
POMFRET--To the best of my remembrance, capt. Dockwra brought
it in; it was almost half an hour after my lord Warwick and
capt. French came in to the house, when they came thither.
ATTORNEY-GENERAL--They, who do you mean?
POMFRET--Captain James and he.
ATTORNEY-GENERAL--Were they let in presently?
POMFRET--No, my lord of Warwick had desired that they might be
private there; but when they knocked at the door, my lord of
Warwick desired to know who they were; and when it was
understood that they were Mr. James and Mr. Dockwra, they were
let in by my lord's order.
ATTORNEY-GENERAL--Pray, which of all the four brought in any
sword in a scabbard?
POMFRET--It was captain Dockwra.
ATTORNEY-GENERAL--Pray, did they appear to be all of a party?
POMFRET--They were glad to see one another; and they talked a
pretty while together; but indeed I cannot say I heard what
they talked.
ATTORNEY-GENERAL--Pray, do you remember my lord of Warwick's
sword, and what there was upon it?
POMFRET--It was a steel sword, water-gilt, and as near as I can
remember, there was blood upon it for the most part from the
point upward.
ATTORNEY-GENERAL--And what did appear upon Mr. French's sword?
POMFRET--There was water and dirt, but there was no blood at
all.
ATTORNEY-GENERAL--How long did they stay there?
POMFRET--They all continued about half an hour; and then went
away, all but Mr. French, who staid there.
ATTORNEY-GENERAL--What then became of the others?
POMFRET--Mr. James, Mr. Dockwra, and my lord of Warwick went
away; and my lord of Warwick desired particularly, that we
would all take care of Mr. French, for he was his particular
friend; and Mr. French continued there till Sunday about one of
the clock.
ATTORNEY-GENERAL--Was there any discourse at that time about
Mr. Coote?
POMFRET--Not that I heard of, one word.
ATTORNEY-GENERAL--Was there any notice taken of any quarrel
that happened between any body, and who?
POMFRET--No, indeed, I did not hear them take notice of any
quarrel at all between any body.
ATTORNEY-GENERAL--You say Mr. French, when he came into your
house, was wounded, and there was care particularly taken of
him because he was wounded.
POMFRET--Yes; my lord of Warwick desired to take care of him.
ATTORNEY-GENERAL--Then pray, was there no discourse how he came
to be wounded?
POMFRET--Indeed I do not know how he came to be wounded; nor
did I hear one word of discourse about it; indeed I cannot say
any thing who wounded him.
ATTORNEY-GENERAL--Pray will you recollect yourself, and tell my
lords what sort of handle had my lord of Warwick's sword when
you saw it?
POMFRET--It had a steel handle.
ATTORNEY-GENERAL--Pray, can you tell whether the shell was open
or close?
POMFRET--I cannot tell justly; I saw it, and that was all.
ATTORNEY-GENERAL--If I apprehend you, you say my lord had a
wound in his hand.
POMFRET--Yes, my lord, he had so.
ATTORNEY-GENERAL--Pray, in what hand was it that he was
wounded?
POMFRET--To the best of my remembrance, it was in his right
hand.
ATTORNEY-GENERAL--Pray, did there appear much blood there?
POMFRET--Yes, my lord, indeed there did.
SERJEANT WRIGHT--You talk of Mr. James and Mr. Dockwra's
swords; pray in what condition were they?
POMFRET--Mr. Dockwra's sword was by his side, and not drawn.
SERJEANT WRIGHT--What did you observe of captain James's sword?
POMFRET--His sword was naked, and he had lost his scabbard; but
how that came I cannot tell; and there was dirt on one side of
the sword; and he said he had left his scabbard behind him.
ATTORNEY-GENERAL--Was there any blood upon his sword?
POMFRET--No, there was no blood that I did see upon it.
ATTORNEY-GENERAL--Pray did you see any blood upon Mr. Dockwra's
sword?
POMFRET--No, indeed, I did not see Mr. Dockwra's sword, it was
in the scabbard by his side.
Warwick's was 'a pretty broad sword': he did not take notice what length
or breadth the other swords were of; French's sword was not a broad
sword; he saw the swords at about three in the morning. James broke his
sword on the floor after he came in.
_Goodall_, a servant in the Bagnio, and his wife were called. They spoke
to Warwick coming in with his sword drawn in his hand and bloody; his
hand was wounded. There was blood on the hilt of his sword, which was a
close one. French may have come in with Warwick; James and Dockwra came
in half an hour afterwards. Warwick gave orders that nobody was to be
admitted; but he opened the door for James and Dockwra when they knocked
and he saw who they were. Warwick, James, and Dockwra went away in a
little time, Warwick ordering that particular care should be taken of
French, who was his friend.
_Henry Amy_, the surgeon who lived at the Bagnio, was called, and said
that he was called up at two in the morning of the 20th of October to
attend the lord Warwick and captain French. The latter was seriously
wounded, the former on the first joint of his fore-finger. While
French's wound was being dressed there was a knocking at the door;
Warwick ordered that nobody should be admitted, but when he found it was
James and Dockwra ordered that they should be let in. They and Warwick
went away in a little time, the latter telling the witness to take
particular care of French. Warwick's sword was very bloody; French
called for his sword the next morning, when the witness saw it, and it
was a little dirty, but not with blood. There was no talk of any
quarrel; the witness asked no questions; he did not then hear anything
about Coote being killed. French's sword was a middle-sized one; it was
not a broad blade.
LORD HIGH STEWARD--Mr. Attorney, who is your next witness?
ATTORNEY-GENERAL--Captain Loftus Duckinfield.
(Who was sworn).
ATTORNEY-GENERAL--This gentleman will acquaint your lordships
what discourse past between these gentlemen the next day; pray,
Sir, acquaint my lords what you heard about Mr. Coote's death,
and when and where.
CAPTAIN DUCKINFIELD--Early in the morning I was told of this
accident.
ATTORNEY-GENERAL--By whom?
CAPTAIN DUCKINFIELD--One of the company, I cannot tell who, I
think they were all together then, my lord of Warwick, capt.
James, capt. Dockwra, and nobody else.
ATTORNEY-GENERAL--What was their discourse?
CAPTAIN DUCKINFIELD--They said, they believed captain Coote was
killed.
ATTORNEY-GENERAL--Did they tell you by whom?
CAPTAIN DUCKINFIELD--By Mr. French, every body did say he was
his adversary.
ATTORNEY-GENERAL--What account was given of the action?
CAPTAIN DUCKINFIELD--They said it was done in the dark, and
capt. French was his adversary.
ATTORNEY-GENERAL--Was there any notice taken of any duel?
CAPTAIN DUCKINFIELD--Yes, there was, between those two, and
the other persons on both sides; and it was said my lord of
Warwick was friend to Mr. Coote, and my lord Mohun.
ATTORNEY-GENERAL--Who were on the other side?
CAPTAIN DUCKINFIELD--Mr. Dockwra and Mr. James.
ATTORNEY-GENERAL--Was there any discourse, who actually fought?
CAPTAIN DUCKINFIELD--It was said, that capt. French fought with
capt. Coote, as they believed, and Mr. James with my lord of
Warwick.
ATTORNEY-GENERAL--Did you see my lord of Warwick's sword?
CAPTAIN DUCKINFIELD--Some time of the day I did; but I cannot
tell whether it was in the morning, or no.
ATTORNEY-GENERAL--In what condition was it? Was it bloody or
not?
CAPTAIN DUCKINFIELD--It was a steel sword.
ATTORNEY-GENERAL--How long did they stay with you?
CAPTAIN DUCKINFIELD--About half an hour.
ATTORNEY-GENERAL--Did they come publicly?
CAPTAIN DUCKINFIELD--We went away in a hackney coach together.
ATTORNEY-GENERAL--Pray, what discourse was there about
consulting to go into the country together?
CAPTAIN DUCKINFIELD--That might be discoursed, but by whom I
cannot tell.
ATTORNEY-GENERAL--Did my lord of Warwick talk of going into the
country?
CAPTAIN DUCKINFIELD--Whether the company talked of it, or my
lord of Warwick in particular, and the rest assented to it, I
cannot well tell.
ATTORNEY-GENERAL--Whither did they go?
CAPTAIN DUCKINFIELD--I cannot directly tell.
ATTORNEY-GENERAL--What time of the day was it?
CAPTAIN DUCKINFIELD--It was about six of the clock.
ATTORNEY-GENERAL--Cannot you tell whither they went?
CAPTAIN DUCKINFIELD--Capt. James and capt. Dockwra went to the
Ship and Castle in Cornhill about five o'clock or six, as near
as I can remember.
ATTORNEY-GENERAL--Can you tell what time my lord of Warwick
went away?
CAPTAIN DUCKINFIELD--No, I cannot tell what time he went away,
not directly.
ATTORNEY-GENERAL--Can you tell of any agreement amongst them,
whither they were to go?
CAPTAIN DUCKINFIELD--No I cannot.
ATTORNEY-GENERAL--What discourse or concern did you observe
past between them, concerning capt. Coote?
CAPTAIN DUCKINFIELD--My lord of Warwick shewed a great deal of
concern for his friend Mr. Coote.
ATTORNEY-GENERAL--Had you any notice of Mr. Coote's death
amongst you?
CAPTAIN DUCKINFIELD--We had notice before we went away; but I
cannot tell whether it was before my lord of Warwick was gone.
ATTORNEY-GENERAL--Was it after the discourse of going into the
country, or before?
CAPTAIN DUCKINFIELD--Indeed, I cannot directly say when it
was.
ATTORNEY-GENERAL--Pray, what reason was there for their going
into the country before he was dead?
CAPTAIN DUCKINFIELD--They believed he was dead.
ATTORNEY-GENERAL--Cannot you tell the reason why they would go
into the country?
CAPTAIN DUCKINFIELD--No, indeed, I cannot tell the reason.
ATTORNEY-GENERAL--Did you observe my lord of Warwick's sword?
Was there any blood upon it?
CAPTAIN DUCKINFIELD--I cannot say his sword was bloody at the
point; the whole blade and shell was bloody, to the best of my
remembrance.
ATTORNEY-GENERAL--What sort of a sword was it?
CAPTAIN DUCKINFIELD--It was a pretty broad blade, a hollow
blade, and a hollow open shell.
ATTORNEY-GENERAL--Was there any discourse concerning capt.
French?
CAPTAIN DUCKINFIELD--Yes, they thought he was very ill wounded.
ATTORNEY-GENERAL--Was there any, and what, discourse who should
give my lord of Warwick his wound?
CAPTAIN DUCKINFIELD--It was said, they believed capt. James
gave my lord his wound.
ATTORNEY-GENERAL--Pray, was there any blood upon Mr. James's
sword, or was he wounded?
CAPTAIN DUCKINFIELD--I saw no wound upon capt. James, that I
know of.
LORD HIGH STEWARD--Do you believe that my lord Warwick's sword
was bloodied with the hurt of his own hand, or any otherwise?
CAPTAIN DUCKINFIELD--I cannot tell; it was a cut shell, and the
outside bloody as well as the in.
LORD HIGH STEWARD--My lord Warwick, will your lordship ask this
witness any questions?
EARL OF WARWICK--No, my lord.
LORD HIGH STEWARD--Mr. Attorney, if you have any other witness,
pray call them.
Another Witness was produced, that belonged to the Ship and Castle in
Cornhill.
ATTORNEY-GENERAL--This man will give you an account what passed
at his house at that time, and between whom; pray, will you
tell my lords who was at your house the 30th of October last,
and what past there then?
WITNESS--My lord of Warwick, capt. James and capt. Dockwra; and
when my lord of Warwick came in I thought my lord was in a very
great concern, and called for pen, ink and paper, and I feared
there was some quarrel in hand; but they said no, the quarrel
was over, and says my lord of Warwick, I am afraid poor Coote
is killed.
ATTORNEY-GENERAL--Did you observe any desire to be private?
WITNESS--No, indeed, I cannot tell that.
ATTORNEY-GENERAL--How long did they continue there?
WITNESS--About six a-clock my lord of Warwick, and capt. James,
and capt. Dockwra, and capt. Duckinfield went away.
ATTORNEY-GENERAL--Can you tell who went with my lord Warwick?
WITNESS--No, indeed, I cannot tell who went with my lord
Warwick; there came in a gentleman in black, whom I knew to be
my lord of Warwick's steward, and he came and spoke some words
to my lord of Warwick, about a quarter of an hour after they
came in, and then they went away, for after that I did not
hear any further discourse.
ATTORNEY-GENERAL--What became of the rest of the company?
WITNESS--They went away; I do not know what became of them, nor
whither they went; some of them went in and out of one room
into another several times, two or three times, and came out
again.
ATTORNEY-GENERAL--My lord, we have done with the witness.
LORD HIGH STEWARD--My lord Warwick, will you ask him any
questions?
EARL OF WARWICK--No, my lord.
_Mr. Salmon_, the surgeon who, by the coroner's orders, examined Coote's
wounds, was called. There were two wounds: one on the left breast, near
the collar-bone, running down four or five inches. He could not guess
what sort of a sword made it; the wound was about half an inch broad.
There was another wound under the last rib on the left side, an inch
broad, six inches deep. They were both mortal. In answer to Lord
Warwick, he said that neither could be given by a sword run up to the
hilt. He could not say that they must have been given by the same
weapon: but they might have been.
_Stephen Turner_, Coote's servant, identified his master's sword; he
believed he fenced with his right hand, but had never seen him fence at
all.
EARL OF WARWICK--I desire he may be asked, whether he has not
observed a particular kindness and friendship between his
master and me?
TURNER--Yes, my lord; I have several times waited upon my
master, when my lord and he was together, and they were always
very civil and kind one to another; and I never heard one word
of any unkindness between them.
EARL OF WARWICK--Whether he knows of any quarrel that was
between us?
TURNER--No, I never did.
EARL OF WARWICK--Whether he did not use to lie at my lodgings
sometimes?
LORD HIGH STEWARD--You hear my lord's question: what say you?
Did your master use to lie at my lord of Warwick's lodgings at
any time?
TURNER--Yes; very often.
ATTORNEY-GENERAL--Pray call Pomfret again, and let him see the
sword.
[Then he came in, and two swords were shewn him.]
ATTORNEY-GENERAL--I desire he may acquaint your lordships what
he knows of those two swords.
POMFRET--These two swords were brought in by some of the
company that came to my master's house; and when they were
shewn to captain French in the morning he owned this to be his,
and the other to be Mr. Coote's; and he desired that notice
might be taken, that his sword was dirty but not bloody; and
there was some blood upon the other.
ATTORNEY-GENERAL--Who brought in Mr. Coote's sword?
POMFRET--Indeed I cannot tell.
_White_, the coroner, was called, and said that he had asked Salmon
whether the two wounds on Coote's body were given by the same weapon,
and he said he could not say.
ATTORNEY-GENERAL--We have done with our evidence, until we hear
what my lord of Warwick says to it.
LORD HIGH STEWARD--My lord of Warwick, will you ask this
witness any questions?
EARL OF WARWICK--No, my lord.
LORD HIGH STEWARD--Make proclamation for silence.
CLERK OF THE CROWN--Serjeant at arms, make proclamation.
SERJEANT-AT-ARMS--O yes, O yes, O yes! His grace, my lord high
steward of England, does strictly charge and command all manner
of persons here present to keep silence, upon pain of
imprisonment.
LORD HIGH STEWARD--My lord of Warwick, the king's counsel have
made an end of giving evidence for the king; now is the proper
time for you to enter upon your defence.
EARL OF WARWICK--May it please your grace, and you my noble
lords, my peers.
I stand here before your lordships, accused of the murder of
Mr. Coote, of which I am so innocent, that I came and
voluntarily surrendered myself so soon as I heard your
lordships might be at leisure to try me; and had sooner done
it, but that the king was not then here, nor your lordships
sitting, and had no mind to undergo a long confinement; and now
I think I might well submit it to your lordships' judgment,
even on the evidence that has been offered against me, whether
there hath been any thing proved of malice prepense, or my
being any actor therein, so as to adjudge me guilty. And I
think I may with humble submission to your lordships say, that
my innocence appeareth even from several of the witnesses who
have been examined against me, which I will not trouble your
lordships to repeat, but submit to your memory and observation.
But, my lords, the safety of my life does not so much concern
me in this case, as the vindication of my honour and reputation
from the false reflections to which the prosecutor has
endeavoured to expose me; and I shall therefore beg your
lordships' patience to give a fair and full account of this
matter: in which the duty I owe to your lordships, and to
justice in general, and the right I owe to my own cause in
particular, do so oblige me, that I will not in the least
prevaricate, neither will I conceal or deny any thing that is
true.
My lords, I must confess I was there when this unfortunate
accident happened, which must be a great misfortune in any
case, but was more so to me in this, because Mr. Coote was my
particular friend; and I did all I could to hinder it, as your
lordship may observe by the whole proceedings.
It was on the Saturday night when my lord Mohun and I, and
several other gentlemen, met at Locket's, where the same
company used often to meet; and in some time after several of
us had been there, Mr. Coote came unexpectedly, and for some
time he and we were very friendly, and in good humour, as we
used to be with each other; but then there happened some
reflecting expressions from Mr. Coote to Mr. French, who
thereupon called for the reckoning; and it being paid, we left
the upper room, and I proposed to send three bottles of wine
to my own lodging, and to carry him thither to prevent the
quarrel. But while the company stopped to call for a glass of
ale at the bar below, Mr. Coote (whose unfortunate humour was
sometimes to be quarrelsome) did again provoke Mr. French to
such degree, that they there drew their swords; but we then
prevented them of doing any mischief: then Mr. Coote still
insisting to quarrel further with Mr. French, my lord Mohun and
I proposed to send for the guards to prevent them: but they had
got chairs to go towards Leicester-fields; and my lord Mohun
and I, as friends to Mr. Coote, and intending to prevent any
hurt to him, did follow him in two other chairs; and as he was
going up St. Martin's-lane, stopped him, and I extremely there
pressed him to return and be friends with Mr. French, or at
least defer it, for that the night was very dark and wet; and
while we were so persuading of him, Mr. French in one chair,
and Mr. James and Mr. Dockwra in two other chairs past by us
(which we guessed to be them), on which Mr. Coote made his
chairmen take him up again, and because the chairmen would not
follow Mr. French faster, threatened to prick him behind; and
when we were gone to Green-street and got out of our chairs,
Mr. Coote offered half a guinea to be changed to pay for all
our three chairs, but they not having change, he desired lord
Mohun to pay the three shillings, which he did. And in a few
minutes after, Mr. Coote and Mr. French engaged in the fields,
whither I went for the assistance and in defence of Mr. Coote,
and received a very ill wound in my right hand; and there this
fatal accident befel Mr. Coote from Mr. French whom Mr. Coote
had dangerously wounded, and I must account it a great
unhappiness to us all who were there: but so far was I from
encouraging of it, that I will prove to your lordships that I
did my utmost endeavours to prevent it; so far from any design
upon him, that I exposed my own life to save his; so far from
prepense malice, that I will, by many witnesses of good quality
and credit, prove to your lordships a constant good and
uninterrupted friendship from the first of our acquaintance to
the time of his death; which will appear by many instances of
my frequent company and correspondence with him, often lending
him money, and paying his reckonings; and about two months
before his death lent him an hundred guineas towards buying him
an ensign's place in the guards, and often, and even two nights
before this, he lodged with me, and that very night I paid his
reckoning. And when I have proved these things, and answered
what has been said about the sword and what other objections
they have made, I doubt not but that I shall be acquitted to
the entire satisfaction of your lordships, and all the world
that hear it.
Before I go upon my evidence, I will crave leave further to
observe to your lordships, that at the Old Bailey, when I was
absent, Mr. French, James, and Dockwra, have been all tried on
the same indictment now before your lordships; and it was then
opened and attempted, as now it is, to prove it upon me also;
and by most of them the same witnesses who have now appeared;
and they were thereupon convicted only of manslaughter, which
could not have been, if I had been guilty of murder. And on
that trial it plainly appeared that Mr. French was the person
with whom he quarrelled, and who killed him. And now I will
call my witnesses.
LORD HIGH STEWARD--Will your lordship please to go on to call
your witnesses, for the proof of what you have said; that is
the method, and then you are to make such observations as you
please.
EARL OF WARWICK--My first witness is capt. Keeting, who was
with me at Locket's, but went away before capt. Coote or any of
them came; and he will tell you I was with him a while.
[Then captain Keeting stood up.]
LORD HIGH STEWARD--Capt. Keeting, you are not upon your oath,
because the law will not allow it. In cases of this nature the
witnesses for the prisoner are not to be upon oath; but you are
to consider that you speak in God's presence, who does require
the truth should be testified in all causes before courts of
judicature; and their lordships do expect, that in what
evidence you give here, you should speak with the same regard
to truth as if you were upon oath; you hear to what it is my
lord of Warwick desires to have you examined, what say you to
it?
CAPTAIN KEETING--My lord, I will tell your lordship all the
matter I know of it. I met with my lord of Warwick that evening
at Tom's Coffee-house, and we continued there till about eight
at night; I went away to see for a gentleman that owed me
money, and afterwards I went to Locket's; and while I was
there, the drawer came up and told me, my lord of Warwick
desired to speak with me; and when he came up into the room, he
said he was to meet with my lord Mohun there, and capt. Coote,
and he asked me if I knew where capt. French and capt. James
were; I told him I dined with capt. Coote at Shuttleworth's;
and in a while after, capt. Coote came in, and about an hour
and an half, I think, I continued there, and capt. French came
in; capt. Dockwra and we drank together for an hour and an
half, and they admired, about ten o'clock that my lord Mohun
was not come; and I payed my reckoning, not being very well,
and away I went home; Mr. James came in just before I went
away; but there was no quarrelling, nor any thing like it
before I went away.
EARL OF WARWICK--My lord, I desire he may be asked, Whether we
did not usually meet there as friends, especially capt. Coote
and I?
CAPTAIN KEETING--Captain Coote and my lord of Warwick used to
be almost every day together at that place.
EARL OF WARWICK--Pray, did he ever know or observe any
difference or quarrel between capt. Coote and me?
CAPTAIN KEETING--No, my lord, I never saw any thing but the
greatest friendship between my lord of Warwick and captain
Coote that could be; I was with them, and saw them together
almost every day.
LORD HIGH STEWARD--Have you any thing further to examine this
witness to?
EARL OF WARWICK--No, my lord, I have no further question to ask
him.
LORD HIGH STEWARD--Who is your next witness, my lord?
EARL OF WARWICK--My lord, I suppose I shall not need to trouble
you to examine the chairmen over again; your lordships have
heard what they can say: I desire colonel Stanhope may be
called.
[Who it seems stood by the Chair of State, and it was some
while before he could get round to come to the place the
witnesses were to stand.]
LORD HIGH STEWARD--While this witness gets round, if your
lordship has any other witness ready to stand up, pray let him
be called.
EARL OF WARWICK--To prove the kindness between capt. Coote and
me, I desire col. Blisset may be called. [Who stood up.]
LORD HIGH STEWARD--What is it your lordship asks this witness
or calls him to?
EARL OF WARWICK--To testify what he knows of any kindness or
unkindness between capt. Coote and me; whether he has not been
often in our company?
LORD HIGH STEWARD--Have you been often in company with my lord
of Warwick and capt. Coote?
COLONEL BLISSET--Yes, my lord, I was very well acquainted with
both of them for a twelve-month past before this accident and I
have often been in their company, and always observed that
there was a great deal of friendship and kindness between them.
EARL OF WARWICK--My lord, I desire he may tell any particular
instance that he knows or can remember.
COLONEL BLISSET--I remember when capt. Coote had his commission
in the regiment of guards, he was complaining of the
streightness of his circumstances; he was to pay for his
commission 400 guineas, and said he had but 300 for to pay for
it: and my lord of Warwick did then say to him, do not trouble
yourself about that, or let not that disturb you, for I will
take care you shall have 100 guineas, and he said he would give
order to his steward to pay him so much; and I was told
afterwards that he did so.
EARL OF WARWICK--I desire he may tell, if he knows of any other
particular instances of my friendship to Mr. Coote?
COLONEL BLISSET--Once when he was arrested by his taylor for
£13, my lord lent him five guineas, and used very frequently to
pay his reckoning for him.
EARL OF WARWICK--I desire he may tell, if he knows any thing
else; and whether he has not lain at my lodgings, and
particularly but some small time before this accident happened.
COLONEL BLISSET--About ten days before this unhappy accident
happened, I was at my lord of Warwick's lodgings, and when I
came there I found capt. Coote a-dressing himself; and I asked
him how that came to pass, and they told me they had been up
late together, and that he had sent home for his man to dress
himself there, upon which I did observe that they had been
a-rambling together over night; and there was a very great
familiarity between them.
EARL OF WARWICK--Did you observe any quarrel between us?
COLONEL BLISSET--No, none at all; I never knew of any quarrel
between my lord of Warwick and capt. Coote, but I observed
there was a particular kindness between them; and a great deal
of friendship I know my lord of Warwick shewed to him, in
paying of reckonings for him, and lending him money when he
wanted.
EARL OF WARWICK--My lord, I desire he may be asked, whether he
does not know that capt. Coote was straitened for money?
COLONEL BLISSET--I did hear capt. Coote say, that he had not
received any thing from his father for 13 months, and his
father was angry with him, and would not send him any supply,
because he would not consent to cut off the entail, and settle
two or three hundred pounds upon a whore he had.
ATTORNEY-GENERAL--Pray, Sir, will you consider with yourself,
and though you are not upon your oath, answer the questions
truly, for you are obliged to speak the truth, though you are
not sworn, whenever you come to give your testimony in a court
of judicature; pray, acquaint my noble lords here, whether you
did never hear my lord Warwick complain of capt. Coote?
COLONEL BLISSET--No, I never did hear him complain of him.
ATTORNEY-GENERAL--Did you never hear the least word of any
quarrel between them?
COLONEL BLISSET--No, indeed, I did never hear of any quarrel
between them.
ATTORNEY-GENERAL--Did you never hear of any unkindness at all?
COLONEL BLISSET--No, indeed, my lord, not I: I never so much as
heard of the least unkindness whatsoever.
LORD HIGH STEWARD--Well then, my lord, who do you call next?
EARL OF WARWICK--Now colonel Stanhope is here, I desire he may
be asked the same question, whether he does not know the
particular friendship that was between capt. Coote and me, and
what instances he can give of it?
LORD HIGH STEWARD--You are to consider, Sir, though you are not
upon your oath you are in a great court, and under no less
restriction to testify the truth, and nothing but the truth:
You hear what my noble lord asks you.
COLONEL STANHOPE--My lord, I have known my lord of Warwick and
capt Coote for about a twelve-month, and I did perceive that
they did always profess a great kindness for one another.
EARL OF WARWICK--I desire to know of him, whether he observed
any particular friendship between capt. Coote and me, much
about the time of this business?
COLONEL STANHOPE--About eight or ten days before this unhappy
accident, I went to wait upon my lord of Warwick twice at his
lodgings: Once I found capt. Coote there, one of them was in
bed, and the other was dressing of himself; I thought they were
very good friends that were so familiar, and I had good reason
to think so, because of that familiarity: Both the times that I
was there, when I found them together, was within eight days
before the accident happened.
EARL OF WARWICK--The next witness I shall call will be Mr.
Disney.
ATTORNEY-GENERAL--But before colonel Stanhope goes, I desire to
ask him this question, whether he did never hear or know of any
unkindness between my lord of Warwick and capt. Coote?
COLONEL STANHOPE--No, indeed I did not; I always thought them
to be very good friends.
LORD HIGH STEWARD--Will your lordship go on to your next
witness?
EARL OF WARWICK--Yes, my lord, there he is, Mr. Disney; I
desire he may be asked what he knows of any expressions of
kindness and friendship between me and capt. Coote.
_Disney_ spoke to Lord Warwick lending Coote 100 guineas towards the
price of his commission; he had observed great kindness between the
two, and had several times seen Lord Warwick pay Coote's reckoning.
_Colonel Whiteman_ was then called. He had constantly seen Lord Warwick
and Coote together;
they dined together almost every day for half a year's time
almost; and as to this time, when this business had happened, I
went to my lord of Warwick, being sent for by him, and found
him at a private lodging, where he expressed a great deal of
concern for the death of his dear friend Mr. Coote; and he
shewed me the wound he had received in his hand, and he desired
he might be private, and he told me he believed people would
make worse of it than it was, because he did not appear; but he
did but intend to keep himself out of the way till he could be
tried; and I took what care I could to get him a convenience to
go to France.
ATTORNEY-GENERAL--Pray, what reason did he give for his going
away?
COLONEL WHITEMAN--The king being at that time out of England,
and so the parliament not sitting, he said he did not love
confinement, and had rather be in France till the parliament
should meet, and he might have a fair trial, which he thought
he should best have in this House.
He had never seen any unkindness or quarrel between them.
_Edmund Raymund_, Lord Warwick's steward, knew of the loan of 100
guineas by him to Coote, and provided the money paid on that occasion.
Lord Warwick then stated that he wished to call French as a witness, and
desired that counsel might be heard on his behalf as to whether he could
be guilty of the death of a man on whose side he was fighting equally
with those who were fighting on the other side, and who had already been
convicted of manslaughter.
After a brief discussion, it was decided that counsel should be heard on
the question whether French was a competent witness. The facts were that
he had been indicted for murder, and convicted of manslaughter; he
claimed the benefit of clergy,[35] which was allowed him; the burning
on his hand was respited, and a pardon remitting the burning altogether
had been delivered to the Lord High Steward under the Privy Seal, but
had not passed the Great Seal.
Lord Warwick had accordingly to maintain that French was a good witness
without having been burnt on his hand, or having been pardoned.
The _Attorney-General_ first proceeded to argue that an allowance of
clergy did not make a felon convict a competent witness.[36] It did not
discharge him from his offence, set him _rectus in curia_, and 'make him
in all respects a person fit to have the benefit and privileges of a
"probus et legalis homo"' till he had passed through those methods of
setting himself right in the eye of the law, that the law had
prescribed. The burning in the hand under the statute of Henry VII. was
not a punishment; it only showed that the branded person was not to have
his clergy again. Purgation was abolished by the statute of Elizabeth,
but satisfaction was not made to the law, the convict was not fully
discharged from its operation, and his credit was not restored, till he
was branded or pardoned. Till then 'the conviction remains upon him,'
and he was not capable of being a witness.
_The Solicitor-General_, Sir John Hawles,[37] followed to the same
effect, and, by the order of the Court _Powys_[38] was then heard on
behalf of the prisoner. He agreed with the Attorney-General that the
branding under the statute of Henry VII. was only for the purpose of
showing that the branded man has had his clergy once, and was not a
punishment; the punishment still remained to be inflicted by the process
of purgation. But purgation was abolished after the Reformation by the
statute of Elizabeth 'because it was only an outward appearance and shew
of purgation, and was often the occasion of very great perjuries.' The
Court had power to imprison the convicted man for a year; but that was
not any more a punishment and a means of restoring a man to credit than
was the branding.[39]
'What we insist on is this, that the allowance of clergy sets him right
in court, since purgation is abolished, and is the same thing as if he
had undergone the ceremonial parts of a formal purgation'; the prisoner
was to have the same benefit of his clergy as purgation would have given
him before the statute, and on being allowed his clergy is to be in the
same condition as if he had undergone purgation or been pardoned. The
respiting of the burning of the hand till the king's pardon could be
obtained was not to put him in a worse condition than he would have been
in had he been actually burnt. Cases were quoted, one of which was
afterwards fairly distinguished, and it was urged that the burning was
only a condition precedent to the accused getting out of prison, not to
his being restored to his credit.
_Serjeant Wright_ replied for the Crown. He admitted that a pardon would
restore a convict to credit as a witness, and that an allowance of
clergy, followed by a burning of the hand, would have the same effect:
now that purgation was abolished, the burning had taken its place; 'that
is the very terms of the statute on which he is to be discharged; that
must actually be done before he can be put into the same condition that
he was in before the conviction, and consequently make him capable of
being a witness.' One of the cases quoted by Powys was distinguished,
and Hale was quoted to support the argument for the Crown.
_Lord Chief-Justice Treby_[40] was then called on for his opinion, and
gave it that French was not a competent witness. He had not yet actually
been pardoned, for pardons were not operative till they had passed the
Great Seal. By his conviction he had forfeited his liberty, his power of
purchasing chattels or holding land, and his credit.
These losses formerly might be restored by purgation; but purgation was
now replaced by burning in the hand. The imprisonment under the statute
was not a necessary condition to a restoration of credit, because it was
'a collateral and a new thing'; the party was not imprisoned 'by virtue
of his conviction, but by a fresh express order of the judges, made upon
the heinousness of the circumstances appearing on the evidence. They
may, and generally do, forbear to commit at all; and when they do, it
may be for a month or two, at their discretion.' In any case the burning
was a condition precedent to a restoration to credit. 'To me the law is
evident. A peer shall have this benefit without either clergy or
burning. A clerk in orders, upon clergy alone, without burning. A
lay-clerk, not without both.'
_Lord Chief-Baron Ward_[41] and _Nevill, J._,[42] expressed themselves
as of the same opinion; and it was decided that French should not be
admitted as a witness.
It was then suggested that counsel should be heard on the point
whether, supposing that Lord Warwick had been on Coote's side in the
fight, he was guilty of his death; but it was decided that as there was
still a question whether the facts were as alleged this could not be
done.
Lord Warwick was then invited to sum up his evidence, 'which is your own
work, as not being allowed counsel as to matter of fact,' and to make
any observations he liked. He preferred, however, to say nothing.
_The Solicitor-General_ then proceeded to sum up for the Crown, and
since he could not be heard by some lords at the upper end of the house,
the _Duke of Leeds_ moved either that 'any person that has a stronger
voice should sum up the evidence,' or that 'you will dispense with the
orders of the house so far, as that Mr. Solicitor may come to the
clerk's table, or some other place within the house, where he may be
heard by all.' _The Earl of Rochester_ opposed the second alternative on
the ground that 'in point of precedent many inconveniences' would occur
were such a course adopted.
_The Earl of Bridgewater_ suggested that the difficulty might be met by
sending the guard to clear the passages about the court, which was
accordingly done, apparently with success.
_The Solicitor-General_ then continued his summing up the evidence; his
only original comment on the case being that as there was no evidence
as to whose hand it was by which Coote was wounded, 'until that can be
known, every person that was there must remain under the imputation of
the same guilt, as having a hand, and contributing to his death.'
Then the lords went back to their own house in the same order
they came into the court in Westminster Hall, and debated the
matter among themselves, what judgment to give upon the
evidence that had been heard; and in about two hours' time they
returned again into the court, erected upon a scaffold in
Westminster-hall; and after they were seated in their places,
the Lord High Steward being seated in his chair before the
throne, spoke to the Lords thus:
LORD HIGH STEWARD--Will your lordships proceed to give your
judgment?
LORDS--Ay, Ay.
Then the Lord High Steward asked this question of every one of
the lords there present, beginning with the puisne baron, which
was the lord Bernard.
LORD HIGH STEWARD--My lord Bernard, is Edward Earl of Warwick
guilty of the felony and murder whereof he stands indicted, or
not guilty?
The lord Bernard stood up in his place uncovered, and laying
his right hand upon his breast pronounced his judgment thus:
LORD BERNARD--Not Guilty of murder, but Guilty of manslaughter,
upon my honour.
The same question was asked severally of all the lords, who in
the same form delivered the same opinion.
Then the Lord High Steward reckoned up the number of peers
present, and the opinions that were given, and announced that
there were 93 present, and that they had all acquitted lord
Warwick of murder, but had found him guilty of manslaughter.
Lord Warwick was then called in, the judgment was announced to
him, and he was asked what he had to say why judgment of death
should not be pronounced against him according to law. And he
claimed the benefit of his peerage, under the statute of Edward
the 6th.
LORD HIGH STEWARD--My lord, your lordship has demanded the
benefit of your peerage upon the statute of Edward the 6th, and
you must have it by law; but I am directed by their lordships
to acquaint you that you cannot have the benefit of that
statute twice; therefore, I am likewise directed by their
lordships to say that they hope you will take a more than
ordinary care of your behaviour for the future, that so you may
never hereafter fall into such unfortunate circumstances as you
have been now under; my lords hope this will be so sensible a
warning, that nothing of this kind will ever happen to you
again; your lordship is now to be discharged.
LORD HIGH STEWARD--Is it your lordships' pleasure to adjourn to
the House of Lords?
LORDS--Ay, Ay.
LORD HIGH STEWARD--This House is adjourned to the House of
Lords.
Then the lords went in procession, in the same order that they
came into the court.
The next day Lord Mohun was tried on a similar indictment before the
same court. And most of the same witnesses having given the same
evidence again, he was acquitted and discharged. He then expressed
himself thus:
LORD MOHUN--My lords, I do not know which way to express my
great thankfulness and acknowledgment of your lordships' great
honour and justice to me; but I crave leave to assure your
lordships, that I will endeavour to make it the business of the
future part of my life, so to behave myself in my conversation
in the world, as to avoid all things that may bring me under
any such circumstances, as may expose me to the giving your
lordships any trouble of this nature for the future.
Then proclamation was made dissolving the Commission, and the Court
adjourned.
* * * * *
As is well known, the duel described in this trial is the original of
that described in _Esmond_ between Lord Castlewood and Lord Mohun; it
may therefore be of interest to transcribe a few passages out of the
latter work, premising only that there seems to be some faint
relationship between Captain Macartney, Lord Mohun's second in his duel
with Lord Castlewood, and the Lord Macartney who afterwards assisted him
in the same capacity in his final meeting with the Duke of Hamilton.
Lord Castlewood, as will be remembered, had come up to London to fight
Lord Mohun, really on account of his relations with Lady Castlewood,
nominally as the result of a quarrel at cards, which it was arranged
should have all the appearance of taking place. Lord Castlewood, Jack
Westbury, and Harry Esmond all meet together at the 'Trumpet,' in the
Cockpit, Whitehall.
When we had drunk a couple of bottles of sack, a coach was
called, and the three gentlemen went to the Duke's Playhouse,
as agreed. The play was one of Mr. Wycherley's--_Love in a
Wood_. Harry Esmond has thought of that play ever since with a
kind of terror, and of Mrs. Bracegirdle, the actress who
performed the girl's part in the comedy. She was disguised as a
page, and came and stood before the gentlemen as they sat on
the stage, and looked over her shoulder with a pair of arch
black eyes, and laughed at my lord, and asked what ailed the
gentleman from the country, and had he had bad news from
Bullock fair?
Between the acts of the play the gentlemen crossed over and
conversed freely. There were two of Lord Mohun's party, Captain
Macartney, in a military habit, and a gentleman in a suit of
blue velvet and silver, in a fair periwig with a rich fall of
point of Venice lace--my Lord the Earl of Warwick and Holland.
My lord had a paper of oranges, which he ate, and offered to
the actresses, joking with them. And Mrs. Bracegirdle, when my
lord Mohun said something rude, turned on him, and asked him
what he did there, and whether he and his friends had come to
stab anybody else, as they did poor Will Mountford? My lord's
dark face grew darker at this taunt, and wore a mischievous,
fatal look. They that saw it remembered it, and said so
afterward.
When the play was ended the two parties joined company; and my
Lord Castlewood then proposed that they should go to a tavern
and sup. Lockit's, the 'Greyhound,' in Charing Cross was the
house selected. All three marched together that way, the three
lords going a-head.'
At the 'Greyhound' they play cards, and Esmond tries in vain to quarrel
with Mohun himself.
My Lord Mohun presently snuffed a candle. It was when the
drawers brought in fresh bottles and glasses and were in the
room--on which my Lord Viscount said, 'The Deuce take you,
Mohun, how damned awkward you are. Light the candle, you
drawer.'
'Damned awkward is a damned awkward expression, my lord,' says
the other. 'Town gentlemen don't use such words--or ask pardon
if they do.'
'I'm a country gentleman,' says my Lord Viscount.
'I see it by your manner,' says my Lord Mohun. 'No man shall
say damned awkward to me.'
'I fling the words in your face, my lord,' says the other;
'shall I send the cards too?'
'Gentlemen, gentlemen! before the servants?' cry out Colonel
Westbury and my Lord Warwick in a breath. The drawers go out of
the room hastily. They tell the people below of the quarrel
upstairs.
'Enough has been said,' says Colonel Westbury. 'Will your
lordships meet to-morrow morning?'
'Will my Lord Castlewood withdraw his words?' asks the Earl of
Warwick.
'My lord Castlewood will be ---- first,' says Colonel Westbury.
'Then we have nothing for it. Take notice, gentlemen, there
have been outrageous words--reparation asked and refused.'
'And refused,' says my Lord Castlewood, putting on his hat.
'Where shall the meeting be? and when?'
'Since my lord refuses me satisfaction, which I deeply regret,
there is no time so good as now,' says my Lord Mohun. 'Let us
have chairs, and go to Leicester Field.'
'Are your lordship and I to have the honour of exchanging a
pass or two?' says Colonel Westbury, with a low bow to my Lord
of Warwick and Holland.
'It is an honour for me,' says my lord, with a profound congée,
'to be matched with a gentleman who has been at Mons and
Namur.'
'Will your Reverence permit me to give you a lesson?' says the
captain.
'Nay, nay, gentlemen, two on a side are plenty,' says Harry's
patron. 'Spare the boy, Captain Macartney,' and he shook
Harry's hand for the last time, save one, in his life.
At the bar of the tavern all the gentlemen stopped, and my Lord
Viscount said, laughing, to the bar-woman, that those cards set
people sadly a-quarrelling; but that the dispute was over now,
and the parties were all going away to my Lord Mohun's house,
in Bow Street, to drink a bottle more before going to bed.
A half-dozen of chairs were now called, and the six gentlemen
stepping into them, the word was privately given to the
chairmen to go to Leicester Field, where the gentlemen were set
down opposite the 'Standard Tavern.' It was midnight, and the
town was a-bed by this time, and only a few lights in the
windows of the houses; but the night was bright enough for the
unhappy purpose which the disputants came about; and so all six
entered into that fatal square, the chairmen standing without
the railing and keeping the gate, lest any persons should
disturb the meeting.
All that happened there hath been matter of public notoriety,
and is recorded, for warning to lawless men, in the annals of
our country. After being engaged for not more than a couple of
minutes, as Harry Esmond thought (though being occupied at the
time with his own adversary's point, which was active, he may
not have taken a good note of time) a cry from the chairmen
without, who were smoking their pipes, and leaning over the
railings of the field as they watched the dim combat within,
announced that some catastrophe had happened, which caused
Esmond to drop his sword and look round, at which moment his
enemy wounded him in the right hand. But the young man did not
heed this hurt much, and ran up to the place where he saw his
dear master was down.
My Lord Mohun was standing over him.
'Are you much hurt, Frank?' he asked in a hollow voice.
'I believe I'm a dead man,' my lord said from the ground.
'No, no, not so,' says the other; 'and I call God to witness,
Frank Esmond, that I would have asked your pardon, had you but
given me a chance. In--in the first cause of our falling out, I
swear that no one was to blame but me, and--and that my
lady----'
'Hush!' says my poor Lord Viscount, lifting himself on his
elbow and speaking faintly. 'Twas a dispute about the
cards--the cursed cards. Harry, my boy, are you wounded too?
God help thee! I loved thee, Harry, and thou must watch over
my little Frank--and--and carry this little heart to my wife.'
And here my dear lord felt in his breast for a locket he wore
there, and, in the act, fell back fainting.
We were all at this terrified, thinking him dead; but Esmond
and Colonel Westbury bade the chairmen come into the field; and
so my lord was carried to one Mr. Aimes, a surgeon, in Long
Acre, who kept a bath, and there the house was wakened up, and
the victim of this quarrel carried in.
FOOTNOTES:
[31] Charles, fifth Baron Mohun (1675?-1712), was the eldest son of the
fourth baron, who died from a wound received in a duel when his son was
about two years old. He fought his first duel in 1692, breaking out of
his lodgings, where he was confined in consequence of a quarrel over
dice, for the purpose, with the assistance of the Earl of Warwick of the
present case, the grandson of the Lord Holland of the Civil War. This
encounter ended in both combatants being disarmed. Two days later he
abetted in the murder of Mountfort, an actor. One Captain Hill was in
love with Mrs. Bracegirdle, the famous actress, and supposed that he had
cause to be jealous of the attentions she received from Mountfort, the
equally eminent actor. Accordingly Hill and Mohun formed a plan
(estimated to cost £50 in all) to carry off the lady as she came out of
the theatre: and providing themselves with a coach-and-six and a body of
soldiers set out on the enterprise. They missed Mrs. Bracegirdle at the
theatre, but found her by chance coming out of a house in Drury Lane
where she had supped. The attempt to carry her off in the coach failed,
owing to the vigorous resistance made by her friends. Hill and Mohun,
however, were allowed to escort her to her lodgings in Howard Street,
where they saw her safely home. Mountfort lived in Norfolk Street, at
the bottom of Howard Street; and as he was passing down the latter some
two hours later, he was accosted by Mohun in a more or less friendly
way; but while they were talking together, he was attacked and killed by
Hill, who did not give him time to draw his sword. Hill fled, but Mohun
was tried by his peers in Westminster Hall, January 1692-93. The trial
excited great interest partly owing to the youth of the prisoner, and on
a question being raised as to the degree of complicity necessary to
constitute his guilt, he was acquitted. A report of the trial will be
found in _State Trials_, xii. 950. There are also some picturesque
references to it in Chapter xix. of Macaulay's _History_. Mohun fought
another duel in 1694, served for two years in Flanders, returned to
England, and fought a duel with Captain Bingham in St. James's Park,
which was interrupted by the sentries. The same year he was present at
the death of Captain Hill, in the Rummer Tavern. The present case
occurred in 1698, and seems to have closed his career as a rake. He was
sent under Lord Macclesfield on a mission to present the
Electress-Dowager Sophia with a copy of the Act of Succession, and he
frequently took part in debates in the House of Lords. After Lord
Macclesfield's death he became entangled in a long course of litigation
with the Duke of Hamilton; and on their meeting in Master's Chambers,
remarks passed between them which led to a duel, when both were killed.
The Tories suggested that the Whigs had arranged the duel in order to
get rid of Mohun because they were tired of him, and Hamilton, because
they wanted to prevent his projected embassy to France.
[32] John Lord Somers (1651-1716) was born at Whiteladies, near
Worcester, educated at Trinity College, Oxford, and called in 1676. He
appeared as junior counsel in the trial of the Seven Bishops, at the
instance of Pollexfen (see vol. i. p. 241), and took a conspicuous part
in the settlement of the monarchy after the Revolution, being an
influential member of the Committee which drafted the Declaration of
Rights. He became Solicitor-General in 1689, and Attorney-General in
1692, in which capacity it is curious to notice that he conducted the
prosecution of Lord Mohun for the murder of Mountfort (see _ante_, p.
60). He became William III.'s first Lord Keeper in 1692-3, and Lord
Chancellor in 1697. During all this time he was one of William's most
trusted advisers, and was consulted by him on the most confidential
questions relating to foreign policy. He was also familiar with the
leading literary and scientific men of his time, being responsible for
Addison's pension, and receiving the dedication of the _Tale of a Tub_
from Swift. He also conferred favours on Rymer and Madox. He resigned
the Great Seal in 1700 after a motion for his perpetual exclusion from
the presence of the King had been defeated by a small majority in the
House of Commons; having already lost the King's confidence by the
position he adopted in regard to William's propositions for a standing
army, and attracted the hostility of the country partly by his
opposition to the bill for the resumption of the grants of forfeited
Irish estates. He played a conspicuous part in the reign of Queen Anne
as the head of the Whig junto formed at the beginning of that reign, but
never resumed office.
[33] Sir Nathan Wright (1653-1721), born of an Essex family, was
educated at Emmanuel College, and was called in 1677. He was junior
counsel for the Crown in the trial of the Seven Bishops, and opened the
pleadings. He became Serjeant in 1692. On the retirement of Lord Somers
in 1700, a difficulty was found in providing a successor, and eventually
the post of Lord Chancellor was offered to, and accepted by, Wright. He
enjoyed no reputation, good or bad, as a judge, except that he was very
slow, and generally considered unfit for the place. After holding office
for five years he was dismissed on the accession to power by the Whigs
in 1705. Speaking of his appointment as Lord Chancellor, Lord Campbell
says, 'The occasional occurrence of such elevations seems wisely
contrived by Providence to humble the vanity of those who succeed in
public life, and to soften the mortification of those who fail.'
[34] Thomas Lord Trevor (1659?-1730) was the son of a Secretary of State
of Charles II. He was called in 1680, became a bencher in 1689,
Solicitor-General in 1692, Attorney-General in 1695. He refused to
succeed Lord Somers in 1700; but in 1701 succeeded Sir George Treby as
Chief-Justice of the Common Pleas. He was re-appointed by Queen Anne,
and was one of the twelve peers created by her in 1711 to create a
majority in the House of Lords. He was removed from office in 1714 on
the accession of George I.; but leaving the Tory party, which he had
joined in Anne's reign, became Lord Privy Seal in 1726, and President of
the Council in 1730, but died six weeks afterwards. He enjoyed a
reputation as a good judge; but is chiefly remembered for his proper
conduct of Crown prosecutions as Attorney-General after the Revolution.
[35] Benefit of clergy was originally the right of the clergy to be
exempt from the jurisdiction of the lay courts, and to be handed over to
the ordinary to make 'purgation.' This the accused clerk did by swearing
to his own innocence and producing twelve compurgators who swore to the
same effect. He was then 'usually acquitted' by a jury of twelve clerks;
but otherwise he was degraded and put to penance. The right itself was
gradually restricted: partly by a construction of the Statute of
Westminster the First (1275), by which it was held to be necessary that
the clerk should be indicted before he could claim his benefit; partly
by the practice prevailing in the time of Henry VI. that he must first
be convicted. Meanwhile its scope had been largely increased by its
extension in 1360 to all lay clerks, who were taken to mean persons
capable of reading. The law, however, which was applicable to the
present case depended on two statutes, 4 Henry VII., c. 13, and 18
Elizabeth, c. 7; by the former any person allowed his clergy was to be
branded, and was not to be allowed it again unless he was actually in
orders; by the latter purgation was abolished, and any person taking
benefit of clergy was to be discharged from prison subject to the power
of the judge to imprison him for a year. By a statute of Edward _VI._
also, a peer ('though he cannot read') was allowed a privilege
equivalent to benefit of clergy, but was not to be branded.
A certain number of offences were excluded from benefit of clergy during
earlier times, and a great number during the eighteenth century, at the
beginning of which the privilege was extended to all prisoners. Finally,
the system was abolished in 1827. How this system, occupying as it did
an important position in the criminal procedure of this country till a
comparatively modern date, impresses a lawyer of the present day, may
best be described in the words of Sir James Stephen:--'Of this branch of
the law, Blackstone characteristically remarks that the English
legislature "in the course of a long and laborious process, extracted by
noble alchemy rich medicines out of poisonous ingredients." According to
our modern views it would be more correct to say that the rule and the
exception were in their origin equally crude and barbarous, that by a
long series of awkward and intricate changes they were at last worked
into a system which was abolished in a manner as clumsy as that in which
it was constructed' (_History of the Criminal Law_, vol. i. p. 458)....
'The result of this was to bring about, for a great length of time, a
state of things which must have reduced the administration of justice to
a sort of farce. Till 1487 any one who knew how to read might commit
murder as often as he pleased, with no other result, than that of being
delivered to the ordinary to make his purgation, with the chance of
being delivered to him _absque purgatione_. That this should have been
the law for several centuries seems hardly credible, but there is no
doubt that it was. Even after 1487, a man who could read could commit
murder once with no other punishment than that of having M. branded on
the brawn of his left thumb, and if he was a clerk in orders he could,
till 1547, commit any number of murders apparently without being branded
more than once' (_Ibid._, vol. i. p. 462).
[36] Convicted felons were incompetent as witnesses till the passing of
Lord Denman's Act in 1843.
[37] Sir John Hawles (1645-1716) was born in Salisbury of a Dorsetshire
family. He was educated at Winchester and Queen's College, Oxford. In
1689 he sat in the House of Commons for Old Sarum; he succeeded Sir
Thomas Trevor as Solicitor-General in 1695 and so remained till 1702. He
afterwards represented various western boroughs in Parliament, most of
them Cornish. He was one of the managers of Sacheverell's impeachment in
1710. He died at Upwinborne.
[38] Sir Thomas Powys (1649-1719), of a Shropshire family, was educated
at Shrewsbury, and was called in 1673. He became Solicitor-General in
1686, and as a supporter of the dispensing power became Attorney-General
in 1687. As such he conducted the prosecution of the Seven Bishops. He
frequently appears for the defence in State Trials during the reign of
William III. He represented Ludlow in Parliament from 1701 to 1713, was
made a Serjeant at the beginning of Anne's reign, and a Judge of the
Queen's Bench in 1713. He was, however, removed from the bench on the
accession of George I.
[39] To a modern practitioner to whom benefit of clergy is merely an
archæological puzzle, it would seem that the proper argument was that
the imprisonment was a punishment, and that as French had not been
imprisoned he was quit of the law; but two centuries make a great deal
of difference in arguments on points of law.
[40] Sir George Treby (1644-1700), the son of a Devon gentleman, entered
Exeter College in 1661, and was called in 1671. He represented his
native town of Plympton in the House of Commons in both Parliaments in
1679, and was a manager in the impeachment of Lord Stafford. He
succeeded Jeffreys as Recorder of London in 1680, but was removed after
the success of the _Quo Warranto_ proceedings. He sat in the Oxford
Parliament of 1681, and resumed his seat as Recorder after the arrival
of the Prince of Orange. He afterwards re-entered Parliament, succeeded
Pollexfen as Solicitor-General in 1689, as Attorney-General in the same
year, and as Lord Chief-Justice of the Common Pleas in 1692.
[41] Edward Ward was called in 1670, and was engaged to assist Lord
Russell in his trial. He was a candidate for the office of Sheriff of
London in the famous election of 1683 (_ante_, pp. 3, 15). He refused a
judgeship at the Revolution; became Attorney-General in 1693, and Chief
Baron in 1695. He died in 1714. He was an ancestor of the late Mr. G.
Ward Hunt.
[42] Sir Edward Nevill was called in 1658. He was knighted in 1681, on
presenting an address to Charles II. as Recorder of Bath. He became
Serjeant in 1684, and a Baron of the Exchequer in 1685. He was dismissed
six months afterwards for refusing to support the royal assumption of
the dispensing power. Fosse gives a striking extract from his evidence
before Parliament in 1689, to show how the power of the Executive was
actually brought to bear on the Stewart judges. He was restored to his
office after the Revolution, removed to the Common Pleas in 1691, and
died in 1705.
SPENCER COWPER AND OTHERS
Spencer Cowper,[43] a barrister; Ellis Stephens and William Rogers,
attorneys; and John Marston, a scrivener, were indicted at the Hertford
Summer Assizes in 1699 for the murder of Sarah Stout, on the 13th of the
previous March. They were tried at the same Assizes, before Baron
Hatsell,[44] on the 16th of July.
The indictment alleged that they had murdered Sarah Stout by strangling
her, and had then thrown her body into the Priory River to conceal the
body. To this, all the prisoners pleaded Not Guilty.
_Jones_ appeared for the prosecution; Cowper defended himself, and
practically the other prisoners as well.
The prisoners agreed that Cowper's challenges should be taken to be the
challenges of all of them; and enough jurors were then challenged to
exhaust the panel. Accordingly, after some discussion, Jones was called
upon to show cause for his challenges.
CLERK OF ARRAIGNS--Call Daniel Clarke.
HATSELL, BARON--Mr. Jones, if you can say any juryman hath said
anything concerning the cause, and given his verdict by way of
discourse, or showed his affection one way or the other, that
would be good cause of challenge.
JONES--My lord, then we should keep you here till to-morrow
morning.
HATSELL, BARON--If there hath been any great friendship between
any juryman and the party, it will look ill if it is insisted
upon.
COWPER--My lord, I do not insist upon it, but I profess I know
of no friendship, only that Mr. Clarke in elections hath taken
our interest in town; I know I have a just cause, and I am
ready to be tried before your lordship and any fair jury of the
county; therefore I do not insist upon it.
A jury was then sworn, and _Jones_ opened the case for the prosecution.
JONES--May it please your lordship, and you gentlemen that are
sworn, I am of counsel for the king in this cause, and it is
upon an indictment by which the gentlemen at the bar stand
accused for one of the foulest and most wicked crimes almost
that any age can remember; I believe in your county you never
knew a fact of this nature; for here is a young gentlewoman of
this county strangled and murdered in the night time. The thing
was done in the dark, therefore the evidence cannot be so plain
as otherwise might be.
After she was strangled and murdered, she was carried down into
a river to stifle the fact, and to make it supposed she had
murdered herself; so that it was indeed, if it prove otherwise,
a double murder, a murder accompanied with all the
circumstances of wickedness and villainy that I remember in all
my practice or ever read of.
This fact, as it was committed in the night time, so it was
carried very secret, and it was very well we have had so much
light as we have to give so much satisfaction; for we have
here, in a manner, two trials; one to acquit the party that is
dead, and to satisfy the world, and vindicate her reputation,
that she did not murder herself, but was murdered by other
hands. For my part, I shall never, as counsel in the case of
blood, aggravate; I will not improve or enlarge the evidence
at all; it shall be only my business to set the fact as it is,
and to give the evidence, and state it as it stands here in my
instructions.
My lord, for that purpose, to lead to the fact, it will be
necessary to inform you, that upon Monday the 13th of March,
the first day of the last assizes here, Mr. Cowper, one of the
gentlemen at the bar, came to this town, and lighted at Mr.
Barefoot's house, and staid there some time, I suppose to dry
himself, the weather being dirty, but sent his horse to Mrs.
Stout's, the mother of this gentlewoman. Some time after he
came thither himself, and dined there, and staid till four in
the afternoon; and at four, when he went away, he told them he
would come and lodge there that night, and sup.
According to his word he came there, and had the supper he
desired; after supper Mrs. Stout, the young gentlewoman, and he
sat together till near eleven o'clock. At eleven o'clock there
was orders given to warm his bed, openly to warm his bed in his
hearing. The maid of the house, gentlemen, upon this went up
stairs to warm his bed, expecting the gentleman would have come
up and followed her before she had done; but it seems, while
she was warming his bed, she heard the door clap together; and
the nature of that door is such, that it makes a great noise at
the clapping of it to, that any body in the house may be
sensible of any one's going out. The maid upon this was
concerned, and wondered at the meaning of it, he promising to
lie there that night; she came down, but there was neither Mr.
Cowper nor Mrs. Stout; so that we suppose, and for all that we
can find and learn, they must go out together. After their
going out, the maid and mother came into the room; and the
young gentlewoman not returning, nor Mr. Cowper, they sat up
all night in the house, expecting what time the young
gentlewoman would return. The next morning, after they had sat
up all night, the first news of this lady was, that she lay
floating and swimming in water by the mill dam. Upon that there
was several persons called; for it was a surprize how this
should come to pass. There she lay floating with her petticoats
and apron, but her night rail and morning gown were off, and
one of them not found till some time after; and the maid will
give you an account how it came to be found.
This made a great noise in the country; for it was very
extraordinary, it happening that from the time the maid left
Mr. Cowper and this young gentlewoman together, she was not
seen or heard of till next morning, when she was found in this
condition, with her eyes broad open, floating upon the water.
When her body came to be viewed, it was very much wondered at;
for in the first place, it is contrary to nature, that any
persons that drown themselves should float upon the water. We
have sufficient evidence, that it is a thing that never was; if
persons come alive into the water, then they sink; if dead,
then they swim; that made some more curious to look into this
matter. At first, it was thought that such an accident might
happen, though they could not imagine any cause for this woman
to do so, who had so great prosperity, had so good an estate,
and had no occasion to do an action upon herself so wicked and
so barbarous, nor cannot learn what reason she had to induce
her to such a thing. Upon view of the body, it did appear there
had been violence used to the woman; there was a crease round
her neck, she was bruised about her ear; so that it did seem as
if she had been strangled either by hands or a rope.
Gentlemen, upon the examination of this matter, it was wondered
how this matter came about, it was dark and blind. The coroner
at that time, nor these people, had no evidence given, but the
ordinary evidence, and it passed in a day. We must call our
witnesses to this fact, that of necessity you must conclude she
was strangled, and did not drown herself. If we give you as
strong a proof as can be upon the nature of the fact, that she
was strangled, then the second matter under that enquiry will
be, to know who, or what persons, should be the men that did
the fact. I told you before, it was, as all wicked actions are,
a matter of darkness, and done in secret to be kept as much
from the knowledge of men as was possible.
Truly, gentlemen, as to the persons at the bar, the evidence of
the fact will be very short, and will be to this purpose.
Mr. Cowper was the last man unfortunately in her company; I
could wish he had not been so with all my heart; it is a very
unfortunate thing, that his name should upon this occasion be
brought upon the stage: but then, my lord, it was a strange
thing, here happens to be three gentlemen; Mr. Marson, Mr.
Rogers, and Mr. Stephens. As to these three men, my lord, I do
not hear of any business they had here, unless it was to do
this matter, to serve some interest or friend that sent them
upon this message; for, my lord, they came to town (and in
things of this nature it is well we have this evidence; but if
we had not been straightened in time, it would have brought
out more; these things come out slowly), these persons, Mr.
Stephens, Mr. Rogers, and Mr. Marson, came to town here on the
thirteenth of March last, the assize day. My lord, when they
came to town, they came to an house, and took lodgings at one
Gurrey's; they took a bed for two, and went out of their
lodging, having taken a room with a large bed in it; and
afterwards they went to the Glove and Dolphin, and then about
eight o'clock one Marson came to them there; in what company
they came, your lordship and the jury will know by and by; they
staid there, my lord, at the Glove from eight to eleven, as
they say. At eleven these three gentlemen came all into their
lodging together to this Gurrey's. My lord, when they came in,
it was very observable amongst them, unless there had been a
sort of fate in it, first, That they should happen to be in the
condition they were; and, secondly, fall upon the discourse
they did at that time; for, my lord, they called for fire, and
the fire was made them; and while the people of the house were
going about, they observed and heard these gentlemen talk of
Mrs. Sarah Stout; that happened to be their discourse; one said
to the other, Marson, she was an old sweetheart of yours: Ay,
saith he, but she cast me off, but I reckon by this time a
friend of mine has done her business. Another piece of
discourse was, I believe a friend of mine is even with her by
this time. They had a bundle of linen with them, but what it
was is not known, and one takes the bundle and throws it upon
the bed; well, saith he, her business is done, Mrs. Sarah
Stout's courting days are over; and they sent for wine, my
lord; so after they had drank of the wine they talked of it,
and one pulled out a great deal of money; saith one to
another, what money have you spent to-day? Saith the other,
thou hast had 40 or 50 pounds for thy share: Saith the other, I
will spend all the money I have, for joy the business is done.
My lord, this discourse happened to be among them; which made
people of the house consider and bethink themselves; when the
next day they heard of this Mrs. Stout's being found in the
water, this made them recollect and call to mind all these
discourses.
My lord, after these gentlemen had staid there all night, next
morning, truly, it was observed (and I suppose some account
will be given of it) that Mr. Cowper and they did meet
together, and had several discourses, and that very day went
out of town; and I think as soon as they came to Hoddesden,
made it all their discourse and business to talk of Mrs. Stout.
My lord, we will call our witnesses, and prove all these facts
that I have opened to your lordship; and then I hope they will
be put to give you some account how all these matters came
about.
_Call Sarah Walker_ (_who was sworn_).
JONES--Mrs. Walker, pray give an account to my lord and the
jury, of Mr. Cowper's coming to your house the 13th of March,
and what was done from his coming there at night to his going
out?
WALKER--May it please you, my lord, on Friday before the last
assizes, Mr. Cowper's wife sent a letter to Mrs. Stout, that
she might expect Mr. Cowper at the assize time; and therefore
we expected Mr. Cowper at that time, and accordingly provided;
and as he came in with the judges, she asked him if he would
alight? He said no; by reason I come in later than usual, I
will go into the town and show myself, but he would send his
horse presently. She asked him, how long it would be before he
would come, because they would stay for him? He said, he could
not tell, but he would send her word; and she thought he had
forgot, and sent me down to know, whether he would please to
come? He said, he had business, and he could not come just
then; but he came in less than a quarter of an hour after, and
dined there, and he went away at four o'clock: and then my
mistress asked him, if he would lie there? And he answered yes,
and he came at night about 9; and he sat talking about half an
hour, and then called for pen, ink and paper, for that, as he
said, he was to write to his wife; which was brought him, and
he wrote a letter; and then my mistress went and asked him,
what he would have for supper? He said milk, by reason he had
made a good dinner; and I got him his supper, and he eat it;
after she called me in again, and they were talking together,
and then she bid me make a fire in his chamber; and when I had
done so, I came and told him of it, and he looked at me, and
made me no answer; then she bid me warm the bed, which
accordingly I went up to do as the clock struck eleven, and in
about a quarter of an hour I heard the door shut, and I thought
he was gone to carry the letter, and staid about a quarter of
an hour longer, and came down, and he was gone and she; and
Mrs. Stout the mother asked me the reason why he went out when
I was warming his bed? and she asked me for my mistress, and I
told her I left her with Mr. Cowper, and I never saw her after
that nor did Mr. Cowper return to the house.
She sat up all night; she next saw Sarah Stout when she had been taken
out of the water the next morning. On being pressed, she was certain
that it was a quarter after eleven by their clock when Cowper left the
house; their clock was half an hour faster than the town clock.
COWPER--Pray, what account did you give as to the time before
my lord chief-justice Holt?
WALKER--I gave the account that it was eleven, or quarter of an
hour after.
COWPER--In her depositions there is half an hour's difference;
for then she said it was half an hour after ten.
HATSELL, BARON--Which clock was earliest, yours or the town
clock?
WALKER--Ours was half an hour faster than theirs.
COWPER--How came you to know this?
WALKER--By reason that dinner was dressed at the cook's, and it
was ordered to be ready by two o'clock, and it was ready at two
by the town clock, and half an hour after two by ours.
COWPER--When you came down and missed your mistress, did you
enquire after her all that night?
WALKER--No, Sir, I did not go out of the doors; I thought you
were with her, and so I thought she would come to no harm.
COWPER--Here is a whole night she gives no account of. Pray,
mistress, why did not you go after her?
WALKER--My mistress would not let me.
COWPER--Why would she not let you?
WALKER--I said I would see for her? No, saith she, by reason if
you go and see for her, and do not find her, it will make an
alarm over the town, and there may be no occasion.
COWPER--Did your mistress use to stay out all night?
WALKER--No, never.
COWPER--Have not you said so?
WALKER--I never said so in my life.
COWPER--Pray, Mrs. Walker, did you never take notice that your
mistress was under melancholy?
WALKER--I do not say but she was melancholy; she was ill for
some time; and I imputed it to her illness, and I know no other
cause.
COWPER--Have you not often told people that your mistress was a
melancholy person, upon your oath?
WALKER--I have said she hath been ill, and that made her
melancholy.
The witness admitted that she had bought poison twice within the last
six months; she bought it at her own instance, and not at the order of
Mrs. Stout, or of Mrs. Crooke. She asked for white mercury. She bought
it to poison a dog with; the dog used to come about the house and do
mischief. It was another maid who gave it to the dog; she swore at the
inquest that she had given it because she had seen it given; it was
given in warm milk which did not seem discoloured.
HATSELL, BARON--You said just now your mistress was ill, and
that made her melancholy; what illness was it?
WALKER--My lord, she had a great pain in her head.
HATSELL, BARON--How long had she been troubled with it?
WALKER--Ever since last May was twelve months was the beginning
of it.
JONES--Did you ever find her in the least inclined to do
herself a mischief?
WALKER--No, I never did.
COWPER--You bought poison twice, did you give all the poison
you bought to the dog?
WALKER--Yes.
COWPER--The first and the last?
WALKER--Yes, the whole.
COWPER--How much did you buy?
WALKER--I am not certain how much I bought.
COWPER--Pray, what mischief did it do the dog?
WALKER--I cannot tell, he may be alive till now for aught I
know.
COWPER--What mischief did the dog do?
WALKER--A great deal, he threw down several things and broke
them.
JONES--Did Mr. Cowper, upon your oath, hear Mistress Stout give
you order to make his fire, and warm his bed?
WALKER--He knows best, whether he heard it or no; but he sat by
her when she spake it.
JONES--Did she speak of it so as he might hear?
WALKER--Yes, she did; for he was nearer than I.
JONES--And did not he contradict it?
WALKER--Not in the least.
JONES--Was it the old or young woman that gave you the order?
WALKER--The young woman.
COWPER--Pray did the dog lap it, or did you put it down his
throat, upon your oath?
WALKER--No, he lapt it, upon my oath.
JONES--Did Mr. Cowper send for his horse from your house the
next day?
WALKER--I cannot say that; I was not in the way.
JONES--Did he come to your house afterwards?
WALKER--No, I am sure he did not.
JONES--Was the horse in your stable when it was sent for?
WALKER--Yes, sir.
JONES--And he did not come to your House again, before he went
out of town?
WALKER--No, sir.
JONES--Do you know which way he went out of town?
WALKER--No, Sir.
HATSELL, BARON--Did Mr. Cowper use to lodge at your house at
the assizes?
WALKER--No, my lord, not since I came there; the sessions
before he did.
COWPER--Where did you come to invite me to dinner?
WALKER--At Mr. Barefoot's.
COWPER--Then you knew I was to lodge there?
HATSELL, BARON--Who wrote the letter on Friday, that Mr. Cowper
would lodge there?
WALKER--I know not who wrote it, his wife sent it.
JONES--Did he tell you he would lodge there that night before
he went away?
WALKER--When he went from dinner he said so.
_James Berry_ could not remember exactly which day it was that Sarah
Stout was found in his mill; but he went out at six o'clock to shoot a
flush of water and saw something floating in the water, and on going to
see what it was, saw that it was part of her clothes. He did not see her
face; no part of her body was above the water, only part of her clothes.
The water might be about five foot deep and she might be about five or
six inches under the water. She lay upon her side; when she was taken
out her eyes were open.
JONES--Was she swelled with water?
BERRY--I did not perceive her swelled; I was amazed at it; and
did not so much mind it as I should.
JONES--But you remember her eyes were staring open?
BERRY--Yes.
JONES--Did you see any marks or bruises about her?
BERRY--No.
COWPER--Did you see her legs?
BERRY--No, I did not.
COWPER--They were not above the water?
BERRY--No.
COWPER--Could you see them under the water?
BERRY--I did not so much mind it.
COWPER--Did she lie straight or double, driven together by the
stream?
BERRY--I did not observe.
COWPER--Did you not observe the weeds and trumpery under her?
BERRY--There was no weeds at that time thereabouts.
JONES--Was the water clear?
BERRY--No, it was thick water.
JONES--Was there anything under her in the water to prevent her
sinking?
BERRY--No, I do not know there was; she lay on her right side,
and her right arm was driven between the stakes, which are
within a foot of one another.
JONES--Did anything hinder her from sinking?
BERRY--Not that I saw.
COWPER--Mr. Berry, if I understand you right, you say her arm
was driven between the stakes, and her head between the stakes;
could you perceive her right arm, and where was her left arm?
BERRY--Within a small matter upon the water.
HATSELL, BARON--Did you see her head and arm between the
stakes?
BERRY--Yes, her arm by one stake and her head by another.
JONES--Did her arm hang down or how?
BERRY--I did not mind so much as I might have done.
_John Venables_ and _Leonard Dell_ corroborated Berry's account of the
position of the body, the latter asserting that the right arm did not
reach to the ground. _Dell_ also helped to carry the body to land, but
saw no bruises.
HATSELL, BARON--When you took her out of the water, did you
observe her body swelled?
DELL--We carried her into the meadow, and laid her on the
bank-side, and there she lay about an hour, and then was
ordered to be carried into the miller's.
HATSELL, BARON--Did you observe that any water was in the body?
DELL--None at all that I could see; but there was some small
matter of froth came from her mouth and nostrils.
JURYMAN--My lord, I desire to know whether her stays were
laced.
DELL--Yes, she was laced.
COWPER--How was she taken out of the water?
DELL--My lord, we stood upon the bridge, I and another man,
where she lay, and he laid hold of her and took her out.
JONES--And did you not perceive she was hung?
DELL--No, my lord.
_John Ulfe_ saw Mrs. Stout when she was taken out of the water; she lay
there on one side; there was nothing at all to hold her up; she lay
between a couple of stakes, but the stakes could not hold her up.
_Katherine Dew, Edward Blackno, William Edmunds, William Page, William
How, and John Meager_ all gave the same account of the position and
state of the body, Dew and Ulfe adding that her shoes and stockings were
not muddy.
JONES--Now, my lord, we will give an account how she was when
she was stript, and they came to view the body. Call John
Dimsdale, junior. (Who was sworn.)
DIMSDALE--My lord, I was sent for at night on Tuesday the last
assizes.
COWPER--My lord, if your lordship pleases, I have some
physicians of note and eminency that are come down from London;
I desire that they may be called into Court to hear what the
surgeons say.
HATSELL, BARON--Ay, by all means.
COWPER--My lord, there is Dr. Sloane, Dr. Garth, Dr. Morley,
Dr. Gilstrop, Dr. Harriot, Dr. Wollaston, Dr. Crell, Mr.
William Cowper, Mr. Bartlett, and Mr. Camlin. [Who respectively
appeared in Court.]
JONES--Give an account how you found Mrs. Stout.
HATSELL, BARON--You are a physician, I suppose, Sir?
DIMSDALE[45]--A surgeon, my lord. When I was sent for to Mrs.
Stout's, I was sent for two or three times before I would go;
for I was unwilling after I heard Mrs. Stout was drowned; for I
thought with myself, what need could there be of me when the
person was dead? but she still sent; and then I went with Mr.
Camlin, and found a little swelling on the side of her neck,
and she was black on both sides, and more particularly on the
left side, and between her breasts up towards the collar-bone;
and that was all I saw at that time, only a little mark upon
one of her arms, and I think upon her left arm.
JONES--How were her ears?
DIMSDALE--There was a settling of blood on both sides the neck,
that was all I saw at that time.
JONES--How do you think she came by it?
DIMSDALE--Truly I only gave an account just as I say now to the
gentlemen at that time, I saw no more of it at that time, but
about six weeks after the body was opened by Dr. Phillips----
COWPER--My lord, he is going to another piece of evidence and I
would ask him----
JONES--Let us have done first; how was her ears?
DIMSDALE--There was a blackness on both ears, a settling of
blood.
JONES--Call Sarah Kimpson.
HATSELL, BARON--Mr. Cowper, now you may ask him anything, they
have done with him.
COWPER--I would ask him, whether he was not employed to view
these particular spots he mentions at the Coroner's inquest?
DIMSDALE--I was desired to look upon the face and arms, and
breast, because they said there was a settling of blood there.
COWPER--When you returned to the Coroner's inquest, what did
you certify as your opinion?
DIMSDALE--I did certify that there was a settling of blood; but
how it came I could not tell.
COWPER--I ask you, Sir, did not you say it was no more than a
common stagnation usual in dead bodies?
DIMSDALE--I do not remember a word of it.
COWPER--Sir, I would ask you; you say the spot was about the
collar-bone; was it above or below?
DIMSDALE--From the collar-bone downwards.
COWPER--Had she any circle about her neck?
DIMSDALE--No; not, upon my oath.
_Sarah Kimpson_ saw the body examined; she saw a great bruise behind
the ear, as big as her hand, and another under her collar-bone.
JONES--Did you see nothing about her neck?
KIMPSON--Nothing round her neck; on the side of her neck there
was a mark.
JONES--Was there any other part bruised?
KIMPSON--Only her left wrist, and her body was very flat and
lank.
She saw the body the day it was found; it was not swollen; she did not
see any water about it. She had seen a child which was drowned in the
same place about ten weeks before; it was drowned at night and found the
next morning; it was found at the bottom of the river, the eyes were
shut, and the body was very much swelled.
_Sarah Peppercorn_ saw the body of Sarah Stout when it was brought to
Mrs. Stout's house. She saw bruises on the head and near the ear. Mrs.
Stout asked her whether her daughter had been with child, and she said
she had not; she was a midwife.
_Elizabeth Husler_ was sworn.
JONES--Had you the view of the body of Mrs. Sarah Stout the day
you heard she was drowned?
HUSLER--She was not drowned, my lord; I went thither and helped
to pull off her clothes.
JONES--In what condition was her body?
HUSLER--Her body was very lank and thin, and no water appeared
to be in it.
There was no water about her mouth and nose; there were bruises at the
top of the collar-bone and upon both her ears.
_Ann Pilkington_ saw the body, and gave the same evidence as to its
general condition as the other witnesses.
COWPER--Had she any circle about her neck?
PILKINGTON--No, not that I did see.
COWPER--Pray, did you not make some deposition to that purpose
that you know of?
PILKINGTON--Sir, I never did, and dare not do it.
COWPER--It was read against me in the King's Bench, and I will
prove it; was not Mr. Mead with you at the time of your
examination?
PILKINGTON--Yes.
COWPER--Did he not put in some words, and what were they?
PILKINGTON--Not that I know of.
COWPER--But you never swore so, upon your oath?
PILKINGTON--No, I do not believe I did; if I did it was
ignorantly.
JONES--Here is her examination, it is 'cross her neck.'
_Mr. Coatsworth_, a surgeon, was called and deposed that in April he had
been sent for, by Dr. Phillips, to come to Hertford to see the body of
Mrs. Stout, who had been six weeks buried. Various parts of the body
were examined; the woman had not been with child; the intestines and
stomach were full of air, but there was no water in them, or the breast,
or lobes of the lungs; there was no water in the diaphragm.
Then I remember I said, this woman could not be drowned, for if
she had taken in water, the water must have rotted all the
guts; that was the construction I made of it then; but for any
marks about the head or neck, it was impossible for us to
discover it, because they were so rotten.
The inspection was made on the 28th of April, and the woman was drowned
on the 13th of March. The doctor had offered to examine the skull, to
see if it had been injured, 'but they did not suspect a broken skull in
the case, and we did not examine it.' All the other parts were sound.
JONES--Call John Dimsdale.
COWPER--My lord, I would know, and I desire to be heard to this
point; I think where the Coroner's inquest have viewed the
body, and the relations have been heard, and the body buried,
that it is not to be stirred afterwards for any private
inspection of parties, that intend to make themselves
prosecutors; but if it is to be taken up, it is to be done by
some legal authority; for if it should be otherwise, any
gentleman may be easily trepanned: for instance, if they should
have thought fit, after the Coroner's view, to have broken the
skull into a hundred pieces, this was a private view altogether
among themselves. Certainly, if they intended to have
prosecuted me, or any other gentleman upon this evidence, they
ought to have given us notice, that we might have had some
surgeons among them, to superintend their proceedings. My lord,
with submission, this ought not to be given in evidence.
HATSELL, BARON--Mr. Cowper, I think you are not in earnest;
there is no colour for this objection: if they did take up the
body without notice, why should not that be evidence? unless
you think they had a design to forswear themselves.
COWPER--Had you a _Melius Inquirendum_, or any lawful warrant
for making this inspection?
COATSWORTH--No, there was not.
HATSELL, BARON--Suppose they did an ill thing in taking up the
body without some order, though I do not know any more ill in
taking up that body than any other; but, however, is that any
reason why we should not hear this evidence?
COATSWORTH--Mr. Camblin, sir Wm. Cowper's surgeon, was there
by.
_Mr. Dimsdale, senior_, a surgeon, was sworn and deposed that he had
been sent for on the 28th of April by Mrs. Stout, to view the body of
her daughter.
Finding her head so much mortified, down to her neck, we
thought all the parts were seized, and had a consultation,
whether we should open her or not; but Mrs. Stout was very
enraged, because a great scandal had been raised, that her
daughter was with child; and she said she would have her opened
to clear her reputation.
The body was examined, with the same result that the other witness had
described, no water being found either in the stomach or the lungs.
After this we had a consultation, to consider whether she was
drowned or not drowned; and we were all of opinion that she was
not drowned; only Mr. Camblin desired he might be excused from
giving his opinion whether she was drowned or not; but all the
rest of us did give our opinions that she was not drowned.
The grounds for this opinion were the absence of water from the lungs
and intestines; and this was a sign which would show whether she had
been drowned or not weeks after her death. In answer to Cowper he
admitted that he had never seen a body opened which had been drowned six
weeks. If a body had been drowned a fortnight, the bowels would be so
rotten that it would be impossible to come near it.
_John Dimsdale, junior_, believed that the body had not been drowned,
and signed a certificate to that effect after looking at the body; he
believed it, because he found no water in the body. He had seen the
child that was drowned the morning after it was drowned, and had found
abundance of water in the body then.
_Dr. Dimsdale_ saw the body after it was opened, and on finding no water
in the thorax or abdomen, signed the certificate. Had the woman been
drowned he would have expected to find water in the thorax.
COWPER--Is it possible there should be water in the thorax
according to your skill?
DIMSDALE--Yes, we did think there would have been, if she had
been drowned.
He would have expected to find traces of it after six weeks.
COWPER--Pray by what passage does the water go into the thorax?
DIMSDALE--It will be very difficult for me to describe the
manner here; but we should have found some in the stomach and
intestines.
COWPER--Pray, sir, how should it go into the thorax?
DIMSDALE--By the lymphæduct, if carried by any means.
No water would come into a body after it was dead, but he questioned
whether or not it might come into the windpipe.
COWPER--Sir, I would ask you, was you not angry that Mr.
Camblin would not join with you in opinion?
DIMSDALE--No.
COWPER--Did you not tell him that you were a graduate
physician, and was angry he would not join you?
DIMSDALE--Suppose I did?
HATSELL, BARON--But did you so or no?
DIMSDALE--Yes, my lord, we had some words about it.
JONES--Swear Dr. Coatsworth. (Which was done.) Now, my lord, we
call these gentlemen that are doctors of skill, to know their
opinions of them that are found floating without water in
them, how they came by their death.
DR. COATSWORTH--I have not seen many drowned bodies to make
observation upon; but it is my opinion, that every body that is
drowned, is suffocated by water passing down the windpipe into
the lungs upon respiration; and at the same time, the water
pressing upon the gullet, there will be a necessity of
swallowing a great part of it into the stomach; I have been in
danger of being drowned myself, and I was forced to swallow a
great quantity of water. If a person was drowned, and taken out
immediately, as soon as the suffocation was effected, I should
not wonder if there were but little water in the stomach and
guts; but if it lay in the water several hours, it must be very
strange if the belly should not be full of water; but I will
not say, it is impossible it should be otherwise.
COWPER--I desire to know, whether this gentleman attempted to
drown himself, or was in danger of being drowned by accident?
DR. COATSWORTH--It was by accident: I was passing up the
ship-side, and took hold of a loose rope instead of the
entering rope, which failing me, I fell into the water.
COWPER--But you struggled to save yourself from drowning?
DR. COATSWORTH--I did so; I have seen several persons that have
been drowned, and they have lain several days, until by
fermentation they have been raised; but I never made my
observations of any persons that have been drowned above six
hours.
JONES--Did you ever hear of any persons that, as soon as they
were drowned, had swam above water?
DR. COATSWORTH--I have not known such a case.
COWPER--Did you ever know, Sir, a body that was otherwise
killed, to float upon the water?
DR. COATSWORTH--I never made any observation of that.
HATSELL, BARON--Dr. Browne has a learned discourse, in his
_Vulgar Errors_, upon this subject, concerning the floating of
dead bodies; I do not understand it myself, but he hath a whole
chapter about it.[46]
_Then Dr. Nailor was sworn._
JONES--We ask you the same question that Dr. Coatsworth was
asked, What is your opinion of dead bodies? If a body be
drowned, will it have water in it or no?
DR. NAILOR--My lord, I am of opinion, that it will have a
quantity if it be drowned; but if there be no water in the
body, I believe that the person was dead before it was put into
the water.
COWPER--I would ask the doctor one question, my lord, Whether
he was not a constant voter against the interest of our family
in this corporation?
DR. NAILOR--I never did come to give a vote but sir William
Cowper, or his son, opposed me, and said I had no right to
vote.
COWPER--I would have asked the same question of the Dimsdales,
if I had remembered it; they are of another party, as this
gentleman is.
HATSELL, BARON--It is not at all material, as they are
witnesses. Then call Mr. Babington. (Who was sworn.)
JONES--Pray, what is your opinion of this matter?
BABINGTON--I am of opinion, that all bodies that go into the
water alive and are drowned, have water in them, and sink as
soon as they are drowned, and do not rise so soon as this
gentlewoman did.
COWPER--Pray, what is your profession, Sir?
BABINGTON--I am a surgeon.
COWPER--Because Mr. Jones called you doctor.
HATSELL, BARON--Did you ever see any drowned bodies?
BABINGTON--Yes, my lord, once I had a gentlewoman a patient
that was half an hour under water, and she lived several hours
after, and in all that time she discharged a great quantity of
water; I never heard of any that went alive into the water, and
were drowned, that floated so soon as this gentlewoman did; I
have heard so from physicians.
HATSELL, BARON--I have heard so too, and that they are forced
to tye a bullet to dead bodies thrown into the sea, that they
might not rise again.
COWPER--The reason of that is, that they should not rise again,
not that they will not sink without it. But I would ask Mr.
Babington, whether the gentlewoman he speaks of went into the
water voluntarily, or fell in by accident?
BABINGTON--By accident, but I believe that does not alter the
case.
_Dr. Burnet_ was called, and expressed an opinion that if a person
jumped into the water or fell in by accident they would swallow and
inhale water as long as they were alive, but not afterwards; and that
they would sink.
_Dr. Woodhouse_ expressed the same opinion. If a person had swallowed
water in drowning, signs of it would be visible some time afterwards.
JONES--Call Edward Clement. (Who was sworn.) Are not you a
seaman?
CLEMENT--Yes, Sir.
JONES--How long have you been so?
CLEMENT--Man I have writ myself but six years, but I have used
the sea nine or ten years.
JONES--Have you known of any men that have been killed, and
thrown into the sea, or who have fallen in and been drowned?
Pray tell us the difference as to their swimming and sinking.
CLEMENT--In the year '89 or '90, in Beachy fight, I saw several
thrown overboard during the engagement, but one particularly I
took notice of, that was my friend, and killed by my side; I
saw him swim for a considerable distance from the ship; and a
ship coming under our stern, caused me to lose sight of him,
but I saw several dead bodies floating at the same time;
likewise in another engagement, where a man had both his legs
shot off, and died instantly, they threw over his legs; though
they sunk, I saw his body float: likewise I have seen several
men who have died natural deaths at sea, they have when they
have been dead had a considerable weight of ballast and shot
made fast to them, and so were thrown overboard; because we
hold it for a general rule, that all men swim if they be dead
before they come into the water; and on the contrary, I have
seen men when they have been drowned, that they have sunk as
soon as the breath was out of their bodies, and I could see no
more of them. For instance, a man fell out of the _Cornwall_,
and sunk down to rights, and seven days afterwards we weighed
anchor, and he was brought up grasping his arm about the cable,
and we have observed in several cases, that where men fall
overboard, as soon as their breath is out of their bodies they
sink downright; and on the contrary, where a dead body is
thrown overboard without weight, it will swim.
JONES--You have been in a fight; how do bodies float after a
battle?
CLEMENT--Men float with their heads just down, and the small of
their back and buttocks upwards; I have seen a great number of
them, some hundreds in Beachy-head fight, when we engaged the
French. I was in the old _Cambridge_ at that time. I saw
several (what number I will not be positive, but there were a
great number, I cannot guess to a score) that did really swim,
and I could see them float for a considerable distance.
JONES--Have you seen a shipwreck?
CLEMENT--Yes; the _Coronation_, in September 1691. I was then
belonging to the _Dutchess_, under the command of captain
Clement; we looked out and see them taking down their masts; we
saw the men walking up and down on the right side, and the ship
sink down, and they swam up and down like a shoal of fish one
after another; and I see them hover one upon another and see
them drop away by scores at a time; and there was an account of
about nineteen that saved themselves, some by boats, and others
by swimming; but there were no more saved out of the ship's
complement, which was between five and six hundred, and the
rest I saw sinking downright, some twenty at a time. There was
a fisherman brought our captain word, that in laying in of his
nets he drew up some men close under the rocks that were
drowned belonging to the _Coronation_. We generally throw in
bags of ballast with them.
JONES--I suppose all men that are drowned, you sink them with
weights?
CLEMENT--Formerly shot was allowed for that purpose; there used
to be threescore weight of iron, but now it is a bag of ballast
that is made fast to them.
JONES--Then, you take it for a certain rule, that those that
are drowned sink, but those that are thrown overboard do not?
CLEMENT--Yes; otherwise why should the government be at that
vast charge to allow threescore or fourscore weight of iron to
sink every man, but only that their swimming about should not
be a discouragement to others?
_Then Richard Gin was sworn._
JONES--You hear the question; pray what do you say to it?
GIN--I was at sea a great while, and all the men that I see
turned overboard had a great weight at their heels to sink
them.
JONES--Then will they swim otherwise?
GIN--So they say.
JONES--Are you a seaman?
GIN--I went against my will in two fights.
JONES--Then, gentlemen of the jury, I hope we have given you
satisfaction that Mrs. Stout did not drown herself, but was
carried into the water after she was killed. That was the first
question; for if it be true that all dead bodies when they are
put into the water do swim, and the bodies that go alive into
the water and are drowned do sink, this is sufficient evidence
that she came by her death not by drowning, but some other way.
Now, my lord, as to the second matter, and that is to give such
evidence as we have against these gentlemen at the bar. Mr.
Cowper, it appears, was the last man that any one give an
account of was in her company. What became of her afterwards,
or where they went, nobody can tell; but the other witnesses
have given you evidence that he was the last man that was with
her. I shall only give this further evidence as to Mr. Cowper,
that notwithstanding all the civility and kindnesses that
passed between him and this family, when the bruit and noise of
this fact was spread abroad, Mr. Cowper did not come to
consider and consult with old Mrs. Stout what was to be done;
but he took no manner of notice of it, and the next day he rode
out of town, without further taking notice of it. Call _George
Aldridge_ and _John Archer_.
_John Archer was sworn._
JONES--Do you know anything of Mr. Cowper's going out of town
about this business of Mrs. Stout's being drowned?
ARCHER--Yes, I did see him go out of town afterwards.
JONES--Which way did he go?
ARCHER--He went the way back from the Glove; I suppose he came
that way.
COWPER--What day was it I went? Is it not the way that I used
to go when I go the Circuit into Essex?
ARCHER--Yes, I believe so.
COWPER--I lodged at Mr. Barefoot's, and he has a back-door to
the Glove, where my horse was, and I went the direct way into
Essex, and it was Wednesday morning: What day was it you see me
go?
ARCHER--It was on the Wednesday morning.
COWPER--That was the very day I went into Essex.
_Then George Aldridge was sworn._
JONES--When did Mr. Cowper go out of town the last assizes?
ALDRIDGE--On Wednesday.
JONES--Which way did he go?
ALDRIDGE--He went the way to Chelmsford.
JONES--Did you not fetch his horse from Stout's?
ALDRIDGE--Yes, sir.
JONES--How often did you go for it?
ALDRIDGE--Three times.
JONES--When?
ALDRIDGE--On Tuesday night I sent once, and went twice myself;
the first time there was nobody at home to deliver the horse;
so I went to Mr. Stout's, and asked him about the horse, and he
said he could not deliver him till the maid went home; and then
I went about eleven o'clock and had the horse.
HATSELL, BARON--Was it eleven at night?
ALDRIDGE--Yes, my lord.
COWPER--When I sent you to fetch my horse, what directions did
I give you?
ALDRIDGE--You gave me directions to fetch your horse, because
you said you should have occasion to go out next morning
betimes with the judge.
COWPER--The reason I sent for my horse was this; when I heard
she had drowned herself, I think it concerned me in prudence to
send a common hostler for him, for fear the lord of the manor
should seize all that was there as forfeited.[47]
HATSELL, BARON--There was no danger of that, for she was found
_Non compos mentis_.
COWPER--No, my lord, I sent before the verdict.
JONES--It seems you did not think fit to go and take horse
there yourself, though you put your horse there.
Now, my lord, we will go on, and give the other evidence that
we opened concerning these three other gentlemen that came to
town; two of them took lodgings at Gurrey's at five in the
afternoon, but did not come in till between eleven and twelve,
and then they brought another in with them; and though he had
been in town five or six hours, his feet were wet in his shoes,
and his head was of a reeky sweat; he had been at some hard
labour I believe, and not drinking himself into such a sweat.
Call _John Gurrey_, _Matthew Gurrey_, and _Elizabeth Gurrey_.
_John Gurrey was sworn._
JONES--Do you know any of the gentlemen at the bar?
J. GURREY--Yes.
JONES--Name who you know.
J. GURREY--There is Mr. Stephens, Mr. Rogers, and Mr. Marson.
JONES--Pray do you remember when they took lodging at your
house?
J. GURREY--The last assizes; when they first came, there was
only Mr. Stephens and Mr. Rogers.
JONES--At what time did they take it?
J. GURREY--I was at church, and cannot tell that, they hired
the lodgings of my wife.
JONES--What can you say more?
J. GURREY--I was in at night when they came; there came three
of them at eleven at night, whereof Mr. Marson was the third
person and he said he was destitute of a lodging and he asked
for a spare bed; my wife told him she had one, but had let it;
whereupon Mr. Stevens and Mr. Rogers said he should lodge with
them; so they went up altogether, and they called for a fire to
be kindled, and asked for the landlord, which was I, and they
asked me to fetch a bottle of wine, and I told them I would
fetch a quart, which I did, and then they asked me to sit down
and drink with them, which I did; and then they asked me if one
Mrs. Sarah Stout did not live in the town, and whether she was
a fortune? I said Yes. Then they said they did not know how to
come to the sight of her; and I said I would shew them her
to-morrow morning, not questioning but I might see her sometime
as she was coming down the street; so they said they would go
to see her. Mr. Rogers and Mr. Stephens charged Mr. Marson with
being her old sweet-heart; saith Mr. Marson, she hath thrown me
off, but a friend of mine will be even with her by this time.
HATSELL, BARON--What o'clock was it then?
J. GURREY--I reckon eleven of the clock when they came in.
HATSELL, BARON--Did you observe in what condition Mr. Marson
was in?
J. GURREY--I did not observe, only that he was hot, and put by
his wig; I see his head was wet, and he said he was just come
from London, and that made him in such a heat.
JONES--Had he shoes or boots on?
J. GURREY--I did not observe that.
JONES--What did they do the next day?
J. GURREY--The next morning I heard this party was in the
water; I sat up all night, and was fain to wait till my
daughter came down to look after the shop; and then I went to
see her, and she removed into the barn, and they were wiping
her face, closing her eyes, and putting up her jaws; and as I
came back these persons were walking, and I met Mr. Marson and
Mr. Stephens, and told them the news; said I, this person has
come to a sad accident: say they, so we hear; but nevertheless
we will be as good as our word, and go and see her. I went with
them and overtook Mr. Rogers; and Marson said we are going to
see Mrs. Stout. 'O landlord!' said Rogers, 'you may take up
that rogue' (pointing at Mr. Marson) 'for what he said last
night'; but I did not think, they speaking so jocularly, that
there was any suspicion of their being concerned in the murder.
A second time I went, the barn-door was locked; I knocked, and
they opened it, and let us in, and they uncovered her face to
let me see her, and I touched her; and looking about for them
they were gone, and I cannot say they see her or touched her:
Then Mr. Marson and they were consulting how to send a
great-coat to London, and I directed them to a coachman at the
Bell-inn; but I did not hear he went to enquire after the
coachman; then they went to your lordship's chamber, and I went
home; and about eleven o'clock I saw Mr. Marson and Mr.
Stephens coming down with Mr. Spencer Cowper.
MARSON--I did not go out that night after I came in.
JONES--No; we agree that. Did you see Mr. Cowper and these
gentlemen together?
J. GURREY--Only at eleven o'clock on Tuesday noon, Mr. Cowper,
Mr. Marson, and Mr. Stephens were coming down to the market
place.
JONES--Did not they take their leave of you when they went away
from you that forenoon?
J. GURREY--No; only in the morning they told me they would send
me word at noon if they intended to lodge there.
MARSON--I desire to know of Mr. Gurrey, if his sister was not
in the room when we came in?
J. GURREY--She was in our house that day; but whether when they
came in I cannot tell.
COWPER--Pray, have you not had some discourse with your sister,
the widow Davis, concerning some suspicion that you had of
Sarah Walker, that hath been produced as a witness?
J. GURREY--I do not remember any such.
COWPER--Then did not you say these words, We must not concern
ourselves with Sarah Walker, for she is the only witness
against the Cowpers?
J. GURREY--I cannot remember any such thing.
HATSELL, BARON--You may answer according to the best of what
you remember; if you say you have forgot when you have not, you
are forsworn.
COWPER--If your lordship pleases to give leave to Mr. Gurrey to
recollect himself, I ask him, Whether he did not talk with his
sister Davis about some suspicion his wife and he had about
Sarah Walker, the maid-servant of the deceased?
J. GURREY--I believe there might be some talk of a person that
was seen to go into the churchyard at some distance with Sarah
Walker.
COWPER--Did your wife say that she did suspect that person?
J. GURREY--Yes.
COWPER--Did your wife say they behaved themselves strangely,
and that she would have persuaded the widow Blewit to have
watched her?
J. GURREY--There was something of that.
COWPER--Was there not some such words, that they must not
meddle with Sarah Walker, for she is the witness against the
Cowpers?
J. GURREY--I said, Do not concern yourself with Sarah Walker,
for fear of taking off her evidence.
COWPER--Pray did not the widow Davis warm the sheets for these
gentlemen?
J. GURREY--She was with my wife, but I cannot say whether she
warmed the sheets.
COWPER--When they came home, had you any lodgers that wanted to
come home? Had not you one Gape?
J. GURREY--I cannot say whether he was in before or after them.
COWPER--Did not you say to your sister Davis, Now these
gentlemen are in bed, if Mr. Gape would come home, our family
would be quiet?
J. GURREY--I do not remember that.
COWPER--Pray, did not you go to look for Mr. Gape?
J. GURREY--Yes, I went to Hockley's.
COWPER--Who did you employ to speak to Mr. Gape?
J. GURREY--Mrs. Hockley.
COWPER--When you came home to your own house, and after you
had been at Hockley's to speak with Mr. Gape, what account did
you give of the time of night, and other particulars?
J. GURREY--I gave no account of the time.
COWPER--Not to Mrs. Davis?
J. GURREY--I cannot tell whether I did or no.
COWPER--Did not you say, Mr. Gape asked Mrs. Hockley what
a-clock it was?
J. GURREY--No, I do not remember that; but Mrs. Hockley went
in, and told him what time of night it was; it was eleven or
twelve of the clock, which I cannot say.
JONES--Call Martha Gurrey. (Who was sworn.) Which of these
gentlemen do you know?
MRS. GURREY--Mr. Marson, Mr. Rogers, and Mr. Stephens.
JONES--What time of the night was it when they came to your
house? give an account of it, and what you heard them say.
MRS. GURREY--It was a little after five, or thereabouts that
they came.
JONES--Who came?
MRS. GURREY--Mr. Stephens, and Mr. Rogers, and there was one
Mr. Gilbert, that married a first cousin of mine; he came and
asked me for my husband; and I asked him his business, and he
said he wanted to speak to him.
JONES--Pray come to these men; when did they come to your
house?
MRS. GURREY--They hired the lodging at five of the clock. When
they first came to see them I was not at home; Mr. Gilbert
brought them, and as I was coming along the street I saw Mr.
Gilbert walking off, and would not look at me.
JONES--When did they go out?
MRS. GURREY--They never staid there.
JONES--When did they come in again?
MRS. GURREY--Between eleven and twelve.
HATSELL, BARON--What did they do when they came again?
MRS. GURREY--I was laying on some sheets two pairs of stairs
when they came, and then there was three of them; so they saw
me a little after, and begged my excuse for bringing in
another, for they said it was so late that they could not get a
lodging any where else: and said, if I thought fit, the
gentleman should lie with them: And I told them I liked it very
well.
JONES--What firing had they?
MRS. GURREY--The firing I laid on in the morning, and they sent
for my husband to fetch them some wine.
JONES--What did you hear them talk on?
MRS. GURREY--They discoursed with my husband, and asked him if
he knew Mrs. Sarah Stout; and one of them said to Mr. Marson, I
think she was an old sweetheart of yours; Ay, said he, but she
turned me off, but a friend of mine is even with her: And Mr.
Rogers said he was in with her; and afterwards said, her
business was done. They had a bundle, that was wrapt up in pure
white cloth, like to an apron, but I cannot say it was an
apron; and there was a parcel hanging loose by it; and when he
laid it down he said, he would pass his word Mrs. Sarah Stout's
courting days were over; and I said, I hoped it was no hurt to
the gentlewoman; and then I looking upon Mr. Marson, saw him
put his peruke aside, and his head reeked, and he told them he
was but just come from London that night, which made him
disappointed of a lodging.
JONES--What did you hear them say about any money?
MRS. GURREY--I asked them how they would have their bed warmed?
And Mr. Marson answered, very hot: With that I went down to
send my daughter up, and she could not go presently; I told her
then she must go as soon as she could.
HATSELL, BARON--Pray, do not tell us what passed between you
and your daughter: What do you know of these gentlemen?
MRS. GURREY--I went to the next room, to see if every thing was
as it should be; I hearkened, and they had some discourse about
money, and I heard somebody (I do not know who it should be
except it were Mr. Stephens) answer and say, the use money was
paid to-night; but what money they meant I cannot tell.
JONES--What did you find when they were gone?
MRS. GURREY--Sir, I found a cord at the end of the trunk.
JONES--Was it there in the morning, or before they came?
MRS. GURREY--No, it could not have been, for I swept my room,
and wiped down the dust.
JONES--Was the cord white?
MRS. GURREY--No, it was more dirty than it is now, for my
husband and I have worn it in our pockets.
COWPER--Pray, who brought the cord down from above stairs?
MRS. GURREY--My daughter that lived with me, and she laid it
upon the shelf.
COWPER--Did not you hear there was a coroner's inquest sitting?
MRS. GURREY--The next day at night I did hear of it.
COWPER--Why did not you go to the coroner's inquest and give an
account of it there?
MRS. GURREY--I told my husband of it, and I asked my husband if
he did not hear what they said concerning Mrs. Sarah Stout? And
he answered, yes, they ought to be taken up for the words they
said last night: Why, saith I, do not you take notice of it? I
think you ought to take them up. But he went out of doors, and
I saw no more of him till the afternoon. When I heard the
words, I thought somebody had stole away and got to bed to her.
COWPER--Pray, if your husband heard these words, why did not he
go to the coroner's inquest?
MRS. GURREY--I did speak to him to have them taken up.
COWPER--Why did he not do it?
MRS. GURREY--He said he would not do it, he did not know but it
might cost him his life.
JONES--How came you after this to discover it?
MRS. GURREY--Because I was so troubled in mind I could not rest
night nor day; and I told him if he would not tell of it, I
would tell of it myself, for I was not able to live.
_Elizabeth Gurrey was sworn._
JONES--Pray, do you know Mr. Rogers, Mr. Stephens, and Mr.
Marson?
E. GURREY--I know Mr. Marson, and these are the other
gentlemen, I reckon.
JONES--What discourse did you hear from them?
E. GURREY--Mr. Marson asked the other gentlemen how much money
they had spent? the other answered, what was that to him? you
have had forty or fifty pounds to your share. Then the other
asked him, whether the business was done? And he answered, he
believed it was; but if it was not done, it would be done
to-night. Then, my lord, he pulled a handful of money out of
his pocket, and swore he would spend it all for joy the
business was done.
JONES--Was Mr. Cowper's name mentioned?
E. GURREY--I heard them mention Mr. Cowper's name, but not Mrs.
Sarah Stout's.
JONES--What condition was the gentleman's shoes in?
E. GURREY--I think it was Mr. Marson, his shoes were very wet
and dirty; one of them was very hot, and he wiped his head with
his handkerchief.
JONES--Now, my lord, we have done as to our evidence. Mr.
Marson pretended he was just then alighted and come from
London, and was in a great heat, and his shoes were wet: for
when he was examined, he said, he came to town about eight of
the clock, and went to the Glove and Dolphin inn, and stayed
there till he came to his lodging. Now it was a wonderful thing
that he should come wet shod from a tavern, where he had been
sitting four or five hours together.
_Then the Examination of Mr. John Marson was read_:
The Examination of JOHN MARSON, taken before me, this 27th day
of April, 1692.
'Who being examined where he was on Monday the 13th of March
last, saith, That he was at the borough of Southwark (he being
an attorney of the said court) till past 4 of the clock in the
afternoon; and saith, that he set out from Southwark for
Hertford soon after, and came to Hertford about eight the same
afternoon, and put up his horse at the sign of , an inn
there, and then went to the Hand and Glove, together with
Godfrey Gimbart, esq., Ellis Stephens, William Rogers, and some
others, where they stayed till about eleven of the clock at
night, and then this examinant went thence directly to the
house of John Gurrey, with the said Stephens and Rogers, who
lay together in the said Gurrey's house all that night. And
being asked what he said concerning the said Mrs. Sarah Stout,
deceased, this examinant saith, that on Sunday the 12th of
March last, this examinant being in company with one Thomas
Marshall, and telling him that this examinant intended the next
day for Hertford, with the marshal of the King's Bench, the
said Thomas Marshall desired this examinant and the said
Stephens, who was then also in company, that they would go and
see the said Sarah Stout (his sweetheart). He confesseth, that
he did ask the said Gurrey, if he would shew this examinant
where the said Stout lived; telling the said Gurrey that his
name was Marshall, and asked him if he never heard of him
before; and jocularly said, that he would go and see her the
next morning, but doth not believe that he said any thing that
any friend was even with the said Sarah Stout, or to such like
effect. And doth confess, that he did the next day, upon the
said Gurrey's telling him that the said Stout was drowned, say,
that he would keep his word, and would see her. And saith, that
meeting with Mr. Cowper (who is this examinant's acquaintance)
he believes he did talk with him concerning the said Stout's
being drowned, this examinant having seen her body that
morning.
JOHN MARSON.
'_Cogn. Die et Anno antedict.
Coram J. Holt._'
JONES--All that I observe from it, is this: That he had been
five hours in town, and when he came to his lodging, he came in
wet and hot, and said he was just come from London.
MARSON--I had rid forty miles that day, and could not be soon
cold.
HATSELL, BARON--They have done now for the king; come, Mr.
Cowper, what do you say to it?
JONES--If your lordship please, we will call one witness more,
Mary Richardson. Mrs. Richardson, do you know Mr. Marson, or
any of these gentlemen?
MRS. RICHARDSON--They came on Tuesday night to the Bell at
Hoddesdon, and lay there, and one of the gentlemen, when I was
warming the sheets, asked me if I knew Mrs. Sarah Stout? And I
said Yes. He asked me if I knew which way she came to her end?
And I told him I could not tell.
JONES--Is that all? What did they say more?
MRS. RICHARDSON--They did desire and wish it might be found out
how it came about; and one gentleman took no notice of her at
all. They had a little bundle, but what was in it I cannot
tell, but there I saw it bound up in some coloured stuff or
other, but what it was I cannot tell.
JONES--Is that all you can say?
MRS. RICHARDSON--Yes, that is all.
JONES--Then we have done.
HATSELL, BARON--Come, Mr. Cowper, what do you say to it?
COWPER--Now they have done on the part of the king, my lord,
and you gentlemen of the jury, I must beg your patience for my
defence. I confess it was an unfortunate accident for me (as
Mr. Jones calls it) that I happened to be the last person (for
aught appears) in the company of a melancholy woman. The
discourse occasioned by this accident had been a sufficient
misfortune to me, without any thing else to aggravate it; but I
did not in the least imagine that so little, so trivial an
evidence as here is, could possibly have affected me to so
great a degree, as to bring me to this place to answer for the
worst fact that the worst of men can be guilty of.
My lord, your lordship did just now observe, that I have
appeared at the bar for my clients; but I must say too, that I
never appeared for myself under this, or the like
circumstances, as a criminal, for any offence whatsoever.
He then goes on to point out that there is no positive evidence against
him, but only suppositions and inferences--what to-day would be called
circumstantial evidence; and that even admitting the evidence of the
prosecution, it is as strong to show that the deceased woman was not
murdered as that she was. Even if the evidence proved that Mrs. Stout
was murdered, there was nothing to show that he or his fellow-prisoners
were guilty of the murder. The body was not floating when it was found,
as could be shown by the parish officers who were employed by the
coroner to take it out of the water. It in fact had sunk, and had then
been carried by the force of the stream sideways up the stakes which
were about a foot apart pointing down stream; and yet the alleged fact
that the body was floating was the only evidence produced to prove that
the woman was not drowned. Evidence would be given to prove that the
fact that the body contained little or no water was immaterial, for
drowning takes place when only a very little water is received into the
lungs; and in a case of suicide it is probable that water would enter
the lungs sooner than it would in cases of accident. As to the evidence
derived from the examination of the body after exhumation, it ought not
to have been given, as the exhumation was itself an offence; 'but as it
is I have no reason to apprehend it, being able to make it appear that
the gentlemen who spoke to this point have delivered themselves in that
manner either out of extreme malice, or a most profound ignorance; this
will be so very plain upon my evidence, that I must take the liberty to
impute one or both of these causes to the gentlemen that have argued
from their observations upon that matter.'
It had been suggested that he had an interest in the death of the
deceased by reason of holding money of hers which he had received as her
trustee or guardian. He had been concerned in investing some £200 in a
mortgage for the deceased the previous December; he had paid over this
money to the mortgagees, and the mortgage had been found by the
prosecutors among the papers of the deceased after her death. This was
the only money transaction he had ever had with her. The prosecution had
proved that there was no concealment of shame to induce him to murder
her; and that, though they had no inclination to favour him.
He would produce evidence to show that the dead woman committed suicide,
though he only did so most unwillingly and under compulsion. The
prosecution had shown that she was melancholy, and he could show that
she had reason for making away with herself. This he would do by
producing letters of hers, which were he alone concerned he would not
allude to; but as he was in honour bound to make the best defence he
could for his fellow-prisoners, he had no choice in the matter.
The maid Walker was the only person who gave any direct evidence against
him, and she said that she heard the door shut at a quarter past eleven,
and that on going downstairs directly afterwards she found that both he
and the deceased had left the house. But he would prove that he had
entered the Glove Inn as the town clock struck eleven, that he had
stayed there a quarter of an hour, that after he had done several things
at his lodgings he had gone to bed by twelve, and had not gone out
again that night. He had sent to fetch his horse from Mrs. Stout's
house on Tuesday morning, as was only prudent, but he had told the man
whom he sent that he would not want it till the next day, when he was
going into Essex with the rest of the circuit, which he did.
He had not heard that his name was connected with Mrs. Stout's death
till two months after the event; and the prosecution had in fact been
set on foot by the Quakers, who were scandalised at the idea of one of
their number committing suicide, and the political opponents of his
father and brother in the town.
Cowper went on to explain that he always had the offer of a share in his
brother's lodgings, which were some of the best in the town, whenever
the latter went circuit, 'which out of good husbandry I always
accepted.' At the time of the last circuit, when the present case arose,
Parliament was sitting, and his brother 'being in the money chair,'
could not attend. As Cowper had been invited to lodge with Mrs. Stout
during the assizes and wished to accept the invitation, he asked his
brother to ask Barefoot, the keeper of his lodgings, to dispose of them
if he could. The brother said he would do so 'if he could think on it,'
and accordingly Cowper went down to Hertford intending to lodge with
Mrs. Stout unless his brother had failed to write to Barefoot. On
arriving at Hertford he found that his brother had not written to
Barefoot, and that the rooms there were ready for him. He accordingly
stayed there, sent to the coffee-house for his bag, and took up his
lodging at Barefoot's as usual. As soon as he had done this, the maid
Walker came round from Mrs. Stout's to invite him to dinner there. He
accepted the invitation, and also a further invitation to come again in
the evening; but he did not agree to sleep there. When he came the
second time he paid the deceased the interest on her mortgage, some six
pounds odd, in guineas and half-guineas, which money was found in her
pocket after she was drowned. He wrote a receipt for the money, which
she refused to sign; she pressed him to stay there that night, which he
refused to do.
He then went on:--
'My lord, I open my defence shortly, referring the particulars
to the witnesses themselves, in calling those who will fully
refute the suppositions and inferences made by the prosecutor,
whom first, my lord, I shall begin with, to show there is no
evidence of any murder at all committed; and this I say again,
ought to be indisputably made manifest and proved, before any
man can be so much as suspected for it.
HATSELL, BARON--Do not flourish too much, Mr. Cowper; if you
have opened all your evidence, call your witnesses, and when
they have ended, then make your observations.
MR. COWPER--Then, my lord, I will take up no more of your time
in opening this matter. Call Robert Dew. (Who appeared.) When
Mrs. Sarah Stout drowned herself, was not you a parish officer?
DEW--I was. I was next house to the Coach and Horses; and about
six o'clock came a little boy (Thomas Parker's boy), and said
there was a woman fallen into the river. I considered it was
not my business, but the coroner's, and I sent the boy to the
coroner, to acquaint him with it, and the coroner sent word by
the boy, and desired she might be taken out; so I went to the
river, and saw her taken out: she lay in the river (as near as
I could guess) half a foot in the water; she was covered with
water; she had a striped petticoat on, but nothing could be
seen of it above water. I heaved her up, and several sticks
were underneath her, and flags; and when they took her out, she
frothed at the nose and mouth.
COWPER--How was she? Was she driven between the stakes?
DEW--She lay on the right side, her head leaning rather
downwards: and as they pulled her up, I cried, 'Hold, hold,
hold, you hurt her arm'; and so they kneeled down and took her
arm from the stakes.
COWPER--Did you see any spot upon her arm?
DEW--Yes, sir.
COWPER--What sort of spot was it?
DEW--It was reddish; I believe the stakes did it; for her arm
hit upon the stake where she lay.
COWPER--Pray, how do these stakes stand about the bridge of the
mill?
DEW--I suppose they stand about a foot asunder; they stand
slanting, leaning down the stream a little.
COWPER--Could you discern her feet?
DEW--No, nothing like it, nor the striped petticoat she had
on.
COWPER--Might not her knees and legs be upon the ground, for
what you could see?
DEW--Truly, if I were put upon my oath whether they were so, or
not, I durst not swear it; sometimes the water there is four
feet, sometimes three and a-half; I believe her feet were very
near the bottom.
COWPER--Are not the stakes nailed with their head against the
bridge?
DEW--They are nailed to the side of the bridge.
COWPER--Pray, describe the manner in which they took her up.
DEW--They stooped down, and took her up.
COWPER--Did they take her up at once?
DEW--They had two heavings, or more.
COWPER--What was the reason they did not take her up at once?
DEW--Because I cried out, 'They hurt her arm.'
COWPER--Was she not within the stakes?
DEW--No, this shoulder kept her out.
COWPER--When you complained they hurt her arm, what answer did
they make you?
DEW--They stooped down and took her arm out from between the
stakes; they could not have got her out else.
COWPER--After she was taken out, did you observe any froth or
foam come from her mouth or nose?
DEW--There was a white froth came from her, and as they wiped
it away, it was on again presently.
COWPER--What was the appearance of her face and upper parts at
that time?
DEW--She was so much disfigured, I believe that scarce any of
her neighbours knew her, the slime of the water being upon her.
COWPER--Did you see her maid Sarah Walker at that time?
DEW--No.
HATSELL, BARON--Mr. Cowper, do you intend to spend so much time
with every witness? I do not see to what purpose many of these
questions are asked.
COWPER--I have done with him: call Young.
HATSELL, BARON--Mr. Cowper, I would not have you straiten
yourself, but only ask those questions that are pertinent.
COWPER--Pray, give an account of what you know of the matter.
YOUNG--On Tuesday morning between five and six o'clock, last
assizes----
COWPER--What officer did you say?
YOUNG--I was constable.
COWPER--Was you employed by the coroner?
YOUNG--Not by him in person. Between five and six o'clock some
of the men that came into my yard to work, told me a woman was
drowned at the mill; I staid a little and went down to see, and
when I came there, I saw a woman, as they had told me, and I
saw part of her coat lie on the top of the water to be seen,
and I looked strictly and nicely within the bridge and saw the
face of a woman, and her left arm was on the outside the
stakes, which I believe kept her from going through; so I
looked upon her very wishfully, and was going back again; and
as I came back I met with R. Dew and two of my neighbours, and
they asked me to go back with them, and said they were going to
take her up; and being constable, I told them I thought it was
not proper to do it, and they said they had orders for it; so I
being constable went back with them, and when I came there I
found her in the same posture as before; we viewed her very
wishfully; her coat that was driven near the stakes was seen,
but none of her coats, or her legs; and after we had looked a
little while upon her, we spake to Dell and Ulse to take her
up, and one of them took hold of her coat till he brought her
above water; and as her arm drew up, I saw a black place, and
she laid sideway, that he could not take her up till they had
let her down again, and so they twisted her out sideway; for
the stakes were so near together that she could not lie upon
her belly, or upon her back; and when they had taken her up,
they laid her down upon a green place, and after she was laid
down, a great quantity of froth (like the froth of new beer)
worked out of her nostrils.
HATSELL, BARON--How much do you call a great quantity?
YOUNG--It rose up in bladders, and run down on the sides of her
face, and so rose again; and seeing her look like a
gentlewoman, we desired one Ulse to search her pockets, to see
if there were any letters, that we might know who she was; so
the woman did, and I believe there was twenty or more of us
that knew her very well when she was alive, and not one of us
knew her then; and the woman searched her pockets, and took out
six guineas, ten shillings, three pence halfpenny, and some
other things; and after that I desired some of my neighbours to
go with me and tell the money; for when it came to be known who
she was, I knew we must give an account on it, and I laid it
upon a block and told it, and they tyed it up in a
handkerchief, and I said I would keep the money, and they
should seal it up to prevent any question about it; and during
all this while of discourse, and sealing up the money, the
froth still worked out of her mouth.
COWPER--Have you measured the depth of the water? What depth is
it there?
YOUNG--I measured the water this morning, and it was so high
that it ran over the floodgate, and the height of it was about
four foot two inches; but sometimes it is pent up to a greater
height than it is to-day.
COWPER--Was it higher to-day than when the body was found?
YOUNG--To the best of my remembrance, it was as high to-day as
it was then.
COWPER--Was any part of the body above water?
YOUNG--No, nor nothing like the body could be seen.
COWPER--Could you see where her legs lay?
YOUNG--No, nor nothing but her upper coats, which were driven
against the stakes.
COWPER--Pray give an account how long she lay there, and when
she was conveyed away?
YOUNG--I stayed a quarter of an hour, and then I went and
sealed up the money at my own house, so that I did not see her
removed.
JONES--Was anybody there besides yourself at this time?
YOUNG--Yes; twenty people at the least.
JONES--Now here is ten of them that have sworn that the body
was above the surface of the water.
HATSELL, BARON--No, her cloaths, they say, were, but the body
was something under the water.
COWPER--Now I will trouble your lordship no more with that
fact, but I will give you an account of the coroner's inquest,
how diligent they were in their proceedings, and produce a copy
of the inquisition itself, that she was found to have drowned
herself.
HATSELL, BARON--Mr. Cowper, that is no evidence if it be
produced in order to contradict what these witnesses have said,
that have been examined for the king; but if you will prove
that they have sworn otherwise before the coroner than they now
do, then you say something, otherwise the coroner's inquest
signifies nothing as to the present question.
COWPER--Call Thomas Wall. I am loth to be troublesome; but, if
you please to favour me, I desire to know of them whether they
do admit there was an inquisition, and that she was found _non
compos mentis_ and did kill herself.
JONES--We do admit it.
JURYMAN--We desire it may be read.
HATSELL, BARON--Why, will not you believe what they agree to on
both sides?
JURYMAN--If they do agree so, I am satisfied.
_Wall_ was one of the coroner's jury, and saw the marks on the body
which he described; Mr. Camlin and the younger Dimsdale were requested
to examine them, which they did, and reported that they were no more
than were usual in such cases. Wall refreshed his memory from his notes,
and said that Sarah Walker had said that it was about eleven when she
had taken the coals up to warm Cowper's bed, but she could not say when
it was that Cowper went out, for she took up some more coals, and then
tarried a little, and then went down and found that Cowper and her
mistress had gone out.
HATSELL, BARON--The woman said the same thing.
COWPER--It is necessary in this particular as to time.
HATSELL, BARON--She told you the clocks did differ.
_Bowden_ and _Shute_ gave evidence as to the finding of the body and as
to its state when found, corroborating the other witnesses.
COWPER--My lord, I am very tender how I take up your lordship's
time, and therefore I will not trouble you with any more
witnesses on this head; but with your lordship's leave I will
proceed to call some physicians of note and eminence, to
confront the learning of the gentlemen on the other side.
_Dr. Sloane_[48] said he had not heard the other witnesses very
distinctly, because of the crowd; but that cases of the present kind
were very uncommon, and that none of them had fallen under his own
knowledge. It was plain that a great quantity of water might be
swallowed without suffocation;
drunkards, who swallow freely a great deal of liquor, and those
who are forced by the civil law to drink a great quantity of
water, which in giving the question (as it is called) is
poured into them by way of torture to make them confess
crimes,[49] have no suffocation or drowning happen to them.
But on the other hand, when any quantity comes into the
windpipe, so it does hinder or intercept the inspiration, or
coming in of the air, which is necessary for the respiration,
or breathing, the person is suffocated. Such a small quantity
will do, as sometimes in prescriptions, when people have been
very weak, or forced to take medicines, I have observed some
spoonfuls in that condition (if it went the wrong way) to have
choaked or suffocated the person.
He took drowning to be when water got into the windpipe or lungs, and
believed that whether a person fell into the water alive or dead, some
quantity would find its way there. He inclined to believe that the
general condition of the body was consistent with the woman having been
drowned.
_Dr. Garth_ gave reasons for disagreeing with the doctors called for the
prosecution in considering that the general state of the body proved
that the woman had not been drowned, pointing out that it was as
unnatural for a human body to float on its side, as for a shilling to
rest on its edge, or for a deal board to float edgewise rather than
otherwise. In spite of what had been said about the seamen, he believed
that dead bodies would generally sink.
HATSELL, BARON--But you do not observe my question; the seamen
said that those that die at sea and are thrown overboard, if
you do not tye a weight to them, they will not sink; what say
you to that?
DR. GARTH--My lord, no doubt in this they are mistaken. The
seamen are a superstitious people, they fancy that whistling at
sea will occasion a tempest. I must confess I have never seen
anybody thrown overboard, but I have tried some experiments on
other dead animals, and they will certainly sink; we have tried
this since we came here hither. Now, my lord, I think we have
reason to suspect the seaman's evidence; for he saith that
three-score pound of iron is allowed to sink the dead bodies,
whereas six or seven pounds would do as well. I cannot think
the commissioners of the navy guilty of so ill husbandry; but
the design of tying weights to their bodies, is to prevent
their floating at all, which otherwise would happen in some few
days; therefore what I say is this, that if these gentlemen had
found a cord, or the print of it, about the neck of this
unfortunate gentlewoman, or any wound that had occasioned her
death, they might then have said something.
_Dr. Morley_ was called, and supported the view that a drowned body need
not necessarily have much water in it, and that it need not float. He
had tried experiments on two dogs the night before; he drowned them
both, and dissecting one found no water in its stomach, while the other
sank to the bottom of the water.
_Dr. Woollaston_ and _Dr. Gelstrop_ both gave evidence to the same
effect as the preceding witnesses.
COWPER--Now, my lord, I would call Mr. William Cowper; and
because of his name, I must acquaint your lordship that he is
not at all acquainted with me, though I should be proud to own
him if he were so; he is a man of great learning, and I
believe, most people admit him to be the best anatomist in
Europe. Mr. Cowper, will you give your opinion of this matter?
_Mr. W. Cowper_[50] accordingly, premising that he would not only
'speak, from reason,' but give an account of experiments, stated that
the symptoms described were consistent with drowning;
this is a truth that no man can deny who is acquainted with any
thing of this nature, that when the head of an animal is under
water, the first time it is obliged to inspire (or draw in air)
the water will necessarily flow into its lungs, as the air
would do if it were out of the water; which quantity of water
(if the dimensions of the windpipe and its branches in the
lungs be considered), will not amount to three inches square,
which is about three ounces of water.
And this quantity of water would be sufficient to cause suffocation, and
after suffocation, swallowing would become impossible. This he said, not
by way of conjecture or hypothesis, but as the result of experiment.
I shall by the bye, tell you how fallacious the first
experiment was, when I proposed to satisfy myself whether a
dead body would float in water. It happened that a spaniel,
that had a great deal of long hair was hanged for this purpose,
which I found to float on the surface of the water; but when I
considered that his hair might buoy him up, I caused another
dog, which had shorter and less hair, to be hanged and put into
the water, which (according to what I had always conceived of
the human body) sunk directly to the bottom. In order to
satisfy myself what quantity of water was necessary to enter
the body of an animal, and cause suffocation in water, I caused
three dogs, when alive, to be suddenly plunged under water till
they were stifled; the result was that about three ounces of
water were found in their lungs, and none in their stomachs.
Dead bodies generally sank; weights were attached to dead
bodies, not so much to make them sink at the time, as to
prevent them floating afterwards.
COWPER--With your lordship's favour, I now think it a proper
time to make this observation. The witnesses that have given
evidence for the king do say they believe she was not drowned;
but they have not pretended to say how she died otherwise.
HATSELL, BARON--That is very true.
_Dr. Crell_ was generally of the same opinion as that expressed by the
last witness, and, in spite of the suggestion of the judge that he
should confine his evidence to matters within his own experience, quoted
the opinion of Ambrose Parey ('who was chief surgeon to Francis the 1st,
employed by him in most of his sieges and battles against emperor
Charles the 5th, and consequently must observe, and could not be
ignorant of such like casualties in such great bodies of men'), as
expressed in his chapter of Renunciations, to the effect that the
certain sign of a man being drowned was an appearance of froth about his
nostrils and mouth. Altogether his firm opinion was that the woman was
drowned.
_Mr. Harriot_, who had been a surgeon in the Fleet; and _Bartlet_, who
had been in several naval engagements, both swore that dead bodies when
thrown overboard sank at first, though they floated again afterwards.
_Mr. Camlin_ was called at the coroner's inquest, and examined the body.
He found certain marks on the head and breast which Mr. Dimsdale said
were only the result of drowning; he had seen more decided marks on the
body of the child that was drowned. He saw no indications that Mrs.
Stout had been strangled.
BOWD--It was much about this time twelvemonth I had some
business in London; and she [Mrs. Stout] sent to me, to know
when I should go to London; and I waited upon her before I
went, and she desired me to do some business for her; and when
I returned, I acquainted her with what I had done; and sitting
together in the hall, I asked her, what is the matter with you?
Said I, there is something more than ordinary; you seem to be
melancholy. Saith she, you are come from London, and you have
heard something or other: said I, I believe you are in love. In
love! said she. Yes, said I, Cupid, that little boy, hath
struck you home: she took me by the hand; Truly, said she, I
must confess it; but I did think I should never be guilty of
such a folly: and I answered again, I admire that should make
you uneasy; if the person be not of that fortune as you are,
you may, if you love him, make him happy and yourself easy.
That cannot be, saith she: the world shall not say I change my
religion for a husband. And some time after I had been in
London, having bought some India goods, she came to my shop and
bought some of me for a gown, and afterwards she came to pay me
for it; and I asked her, How do you like it? have you made it
up? No, said she, and I believe I shall never live to wear it.
COWPER--Pray how long is it since?
BOWD--It was about February or January before her death. I
asked her, why she did not come to my house oftener She said,
she had left off all company, and applied herself to reading;
and company was indifferent to her.
Several other witnesses were then called to prove that they had recently
seen the deceased woman in a state of melancholy, and that she had
admitted that she was in love, though she would not say with whom.
COWPER--Mrs. Cowper, what do you know of Mrs. Stout's
melancholy?
COWPER--My lord, this is my brother's wife.
MRS. COWPER--About spring was twelve month, she came to London,
and I believe it was not less than once or twice a week I saw
her; and I never had an opportunity to be an hour alone with
her at any time, but I perceived something in her melancholy. I
have asked her the reason of it several times, and sometimes
she seemed to dislike her profession, being a Quaker; and
sometimes she would say, that she was uneasy at something that
lay upon her spirits, which she should never outlive; and that
she should never be well while she was in this world. Sometimes
I have endeavoured to persuade her out of it seriously, and
sometimes by raillery, and have said are you sure you shall be
better in another world? And particularly I remember I have
said to her, I believe you have Mr. Marshall in your head:
either have him, or do not trouble yourself about him; make
yourself easy either one way or another; and she hath said no,
in an indifferent way, I cannot make myself easy: Then I have
said, marry him: no, saith she, I cannot. Sometimes with
company she would be diverted, and had frequently a way of
throwing her hands, and shewed great disturbance and
uneasiness. This time twelvemonth, at the summer assizes, I was
here six days, and I saw her every day; and one time, among
other discourse, she told me she had received great disturbance
from one Theophilus, a waterman and a Quaker, who coming down
to old Mrs. Stout, that was then lame, she had gathered about
20 or 30 people together to hear him preach; and she said he
directed his discourse to her, and exasperated her at the rate
that she had thoughts of seeing nobody again, and said, she
took it heinously ill to be so used, and particularly, that he
had told her that her mother's falling outwardly in the flesh
should be a warning that she did not fall inwardly; and such
'canting stuff,' as she called it; and she said, that
Theophilus had so used her, that she was ashamed to show her
head. Another time, the same week, she had a fever, and she
said, she was in great hopes it would end her days, and that
she neglected herself in doing those things that were necessary
for her health, in hopes it would carry her off, and often
wished herself dead. Another time, which I think was the last
time I saw her, it was at my sister's lodgings, and I sent for
her to drink a dish of tea with us, and she came in a great
toss and melancholy: Said I, what is the matter? you are always
in this humour. Saith she, I cannot help it, I shall never be
otherwise. Saith my sister, for God's sake keep such thoughts
out of your head as you have had, do not talk any more of
throwing yourself out of window: Saith she, I may thank God
that ever I saw your face, otherwise I had done it, but I
cannot promise I shall not do it.
HATSELL, BARON--What is your name, madam?
COWPER--It is my brother's wife, my lord. I desire Mrs. Toller
may give an account of what she knows as to her being
melancholy.
MRS. TOLLER--My lord, she was once to see me, and she looked
very melancholy, and I asked her what was the matter? and she
said, something had vexed her that day; and I asked her the
cause of it, and she stopped a little while, and then said, she
would drown herself out of the way.
HATSELL, BARON--How long ago was this?
MRS. TOLLER--About three quarters of a year ago.
JOHN STOUT--I desire to know whether she has always said so, or
not told another story.
MRS. TOLLER--I told you no story; it may be I did not say so
much to you, but I said she talked something of drowning. I
have been with her when Mr. Cowper's conversation and name has
been mentioned, and she said she kept but little company; that
sometimes she went to Mrs. Low's, and that she kept none but
civil modest company, and that Mr. Cowper was a civil modest
gentleman, and that she had nothing to say against him.
COWPER--This is Mrs. Eliz. Toller, my lord.
ELIZABETH TOLLER--My lord, she came to see me some time after
Christmas, and seemed not so cheerful as she used to be; said
I, what is the matter? Why are you not so merry as you used to
be? Why do you not come often to see me? Saith she, I do not
think to go abroad so much as I used to do, and said, it would
be as much a rarity to see her go abroad, as to see the sun
shine by night.
COWPER--Mrs. Grub, what do you know concerning Mrs. Stout's
pulling out a letter at her brother, Mr. John Stout's? Give an
account of it, and what she said upon that occasion.
MRS. GRUB--I have a daughter that lives at Guernsey, and she
sent me a letter, and I prayed Mrs. Sarah Stout to read the
letter; and while she was reading it I cried; saith she, why do
you cry? said I, because my child is so far off. Said she, if I
live till winter is over, I will go over the sea as far as I
can from the land.
HATSELL, BARON--What was the occasion of her saying so?
MRS. GRUB--I was washing my master's study, Mrs. Sarah Stout
came in, and I had a letter from my daughter at Guernsey, and I
prayed Mrs. Sarah Stout to read it, and she read my letter, and
I cried, and she asked me, why I cryed? Said I, because my
child is so far off: Saith she, if I live to winter, or till
winter is over, I will go over sea as far as I can from the
land.
COWPER--Now, my lord, to bring this matter of melancholy to the
point of time, I will call one witness more, who will speak of
a remarkable instance that happened on Saturday before the
Monday when she did destroy herself.
Call Mr. Joseph Taylor. Pray will you inform the court and jury
of what you observed on Saturday before the Monday on which
Mrs. Stout destroyed herself.
JOSEPH TAYLOR--I happened to go in at Mr. Firmin's shop, and
there she sat the Saturday before this accident happened, the
former assizes, and I was saying to her, Madam, I think you
look strangely discontented; I never saw you dressed so in my
life: Saith she, the dress will serve me as long as I shall
have occasion for a dress.
COWPER--In what posture did she appear in the shop?
JOSEPH TAYLOR--She appeared to be very melancholy.
COWPER--What part of her dress did you find fault with?
JOSEPH TAYLOR--It was her head cloaths.
COWPER--What was the matter with them?
JOSEPH TAYLOR--I thought her head was dawbed with some kind of
grease or charcoal.
COWPER--What answer did she make?
JOSEPH TAYLOR--She said, they would serve her time.
COWPER--As to this piece of evidence, if your lordship pleases,
I desire it may be particularly taken notice of; it was her
head-dress that she said would serve her time.
Pray, Mr. Taylor, was you at Mr. Barefoot's when I came there
on Monday morning?
JOSEPH TAYLOR--Yes; I went up stairs with you into your
chamber.
COWPER--Pray, what did I say to Mr. Barefoot?
JOSEPH TAYLOR--You asked him if they had received a letter from
your brother, and he said, No, not that he knew of, but he
would call his wife, and he did call his wife, and asked her if
she had received a letter, and she said, No; then said you, I
will take up this lodging for mine; and accordingly you went up
stairs, and I went with you, and staid there about four times
as long as I have been here.
COWPER--Are you very sure that I said, I would take up my
lodgings there?
JOSEPH TAYLOR--Yes, I am very sure of it.
HATSELL, BARON--What time of the day was it?
JOSEPH TAYLOR--It was the fore part of the day; while I was
there, my lord, Mrs. Sarah Stout's maid came to invite Mr.
Cowper to her house to dinner.
COWPER--Did you know anything of my sending to the
coffee-house?
JOSEPH TAYLOR--You sent to the coffee-house for your things.
HATSELL, BARON--Did Mr. Cowper use to lie at Mrs. Barefoot's?
JOSEPH TAYLOR--His brother did, but I do not know whether this
gentleman did, but at that time he took up that place for his
lodging; and said, it was all one, my brother must pay for it,
and therefore I will take it up for myself.
COWPER--Call Mrs. Barefoot and her maid.
[But they not presently appearing,]
COWPER--My lord, in the meantime I will go on to the other part
of my evidence, in opening of which I shall be very short.
My lord, my wife lodging at Hertford, occasioned me frequently
to come down. Mrs. Stout became acquainted with her; When
business was over in the long vacation, I resided pretty much
at Hertford, and Mr. Marshall came down to pay me a visit, and
this introduced his knowledge of Mrs. Stout. When she was first
acquainted with him she received him with a great deal of
civility and kindness, which induced him to make his addresses
to her, as he did, by way of courtship. It happened one evening
that she and one Mrs. Crook, Mr. Marshall and myself, were
walking together, and Mr. Marshall and Mrs. Crook going some
little way before us, she took this opportunity to speak to me
in such terms, I must confess, as surprized me. Says she, Mr.
Cowper, I did not think you had been so dull. I was inquisitive
to know in what my dulness did consist. Why, says she, do you
imagine I intend to marry Mr. Marshall? I said I thought she
did, and that if she did not, she was much to blame in what she
had done: No, says she, I thought it might serve to divert the
censure of the world, and favour our acquaintance. My lord, I
have some original letters under her own hand which will make
this fully manifest; I will produce the letters after I have
called Mr. Marshall. Mr. Marshall.
MR. MARSHALL--If your lordship pleases, it was in the long
vacation I came down to spend a little of my leisure time at
Hertford; the reason of my going thither was, because Mr.
Cowper was there at that time. The first night when I came down
I found Mrs. Sarah Stout visiting at Mr. Cowper's lodgings and
there I first came acquainted with her; and she afterwards gave
me frequent opportunities of improving that acquaintance; and
by the manner of my reception by her, I had no reason to
suspect the use it seems I was designed for. When I came to
town, my lord, I was generally told of my courting Mrs. Stout,
which I confess was not then in my head; but it being
represented to me as a thing easy to be got over, and believing
the report of the world as to her fortune, I did afterwards
make my application to her; but upon very little trial of that
sort, I received a very fair denial, and there ended my suit;
Mr. Cowper having been so friendly to me, as to give me notice
of some things, that convinced me I ought to be thankful I had
no more to do with her.
HATSELL, BARON--When did she cast you off?
MR. MARSHALL--I cannot be positive as to the time, my lord, but
it was in answer to the only serious letter I ever writ to her;
as I remember, I was not over importunate in this affair, for I
never was a very violent lover.
HATSELL, BARON--Well, but tell the time as near as you can.
MR. MARSHALL--I believe it was a second or third time I came
down to Hertford, which is about a year and a half since; and,
during the whole of my acquaintance with her, I never till
then found her averse to any proposal of mine; but she then
telling me her resolution was not to comply with what I
desired, I took her at her word, having, partly by my own
observation, but more by Mr. Cowper's friendship, been pretty
well able to guess at her meaning.
COWPER--Because what you say may stand confirmed beyond
contradiction, I desire you to say whether you have any letters
from her to yourself?
MR. MARSHALL--Yes, I have a letter in my hand which she sent
me, upon occasion of some songs I sent her when I came to town,
which she had before desired of me; and this is a letter in
answer to mine; it is her hand-writing, and directed to me.
HATSELL, BARON--How do you know it is her hand-writing?
MR. MARSHALL--I have seen her write, and seen and received
several letters from her.
COWPER--Pray shew it Mr. Beale.
MR. BEALE--I believe it to be her hand; I have seen her write,
and have a receipt of hers.
CLERK OF ARRAIGNS--It is directed to Mr. Thomas Marshall at
Lyons-inn, and dated Sept. 26, 1697.
'_Sept. 26, 1697._
'SIR,
'Yours came very safe; but I wish you had explained your
meaning a little more about the accident you speak of;
for have been puzzling my brains ever since; and without
I shall set myself to conjuring, I cannot imagine what
it should be, for I know of nothing that happened after
you went away, nor no discourse about you, only when we
were together, the company would sometimes drink your
health, or wish you had been there, or the like; so that
I fancy it must be something Mr. has invented for
diversion; though I must confess we have a sort of
people here, that are inspired with the gift of
foreknowledge, who will tell one as much for nothing as
any astrologer will have a good piece of money for. But
to leave jesting, I cannot tell when I shall come to
London, unless it be for the night and away, about some
business with my brother, that I must be obliged to
attend his motions; but when I do, I shall remember my
promise, although I do not suppose you are any more in
earnest than myself in this matter. I give you thanks
for your songs and your good wishes, and rest,
Your loving Duck.'
COWPER--Have you any more letters?
MR. MARSHALL--Yes, I have another letter here, but before it is
read, I think it will be proper to give the court an account of
the occasion of its being writ. I waited on Mrs. Stout one
evening at her lodgings in Houndsditch, and at our parting she
appointed to meet me the next day; and to excuse her not coming
according to that appointment, she sent me this letter.
CLERK OF ARRAIGNS--It is directed to Mr. Thomas Marshall; it is
without date.
'MR. MARSHALL,
I met unexpected with one that came from H----d last
night, who detained me so long with relating the most
notorious inventions and lyes that are now extant
amongst those people, that I could not possible come
till it was late; and this day was appointed for
business, that I am uncertain when it will be finished;
so that I believe I cannot see you whilst I am in town.
I have no more at present, but that I am
Your obliged Friend.'
COWPER--Now, my lord, if your lordship please, I proceed to
shew you, that I went not so much voluntarily as pressed by her
to come to this house, and for that I will produce one letter
from her to myself; and, my lord, I must a little inform you of
the nature of this letter. It is on the outside directed to
Mrs. Jane Ellen, to be left for her at Mr. Hargrave's
coffee-house. For her to direct for me at a coffee-house, might
make the servants wonder and the post-man might suspect, and
for that reason she directed it in that manner. There was Mr.
Marshall by whom I received it, and I can prove the hand by Mr.
Beale.
MR. MARSHALL--My lord, I verily believe I was by, and that Mr.
Cowper shewed me this letter immediately on receipt of it, as
he had done several others from the same hand.
CLERK OF ARRAIGNS--This is directed for Mrs. Jane Ellen. It is
dated March the 5th, without any year.
_'March the 5th._
SIR,
I am glad you have not quite forgot that there is such a
person as I in being; but I am willing to shut my eyes,
and not see anything that looks like unkindness in you,
and rather content myself with what excuses you are
pleased to make, than be inquisitive into what I must
not know. I should very readily comply with your
proposition of changing the season, if it were in my
power to do it, but you know that lies altogether in
your own breast; I am sure the winter has been too
unpleasant for me to desire the continuance of it; and I
wish you were to endure the sharpness of it but for one
hour, as I have done for many long nights and days; and
then I believe it would move that rocky heart of yours,
that can be so thoughtless of me as you are; But if it
were designed for that end, to make the summer the more
delightful, I wish it may have the effect so far, as to
continue it to be so too, that the weather may never
overcast again; the which if I could be assured of, it
would recompense me for all that I have ever suffered,
and make me as easy a creature as I was the first moment
I received breath. When you come to H----d pray let
your steed guide you, and do not do as you did the last
time; and be sure order your affairs to be here as soon
as you can, which cannot be sooner than you will be
heartily welcome to
Your very sincere Friend.'
'_For Mrs. Jane Ellen, at Mr. Hargrave's,
near Temple-bar, London._'
COWPER--Though it is directed to Mrs. Jane Ellen, it begins in
the inside 'Sir,' and it is dated the 5th March next before the
13th.
HATSELL, BARON--What March was it?
MR. MARSHALL--I kept no account of the time, but I am very
positive, by the contents, that Mr. Cowper shewed me this
letter and I read it, but by my now remembrance, it should be
longer since than March last.
COWPER--It was March last. That which will set Mr. Marshall's
memory to rights is this other letter, which I received at the
Rainbow, when he was by, and he read it; and it importuning me
to a matter of this kind, I did produce it to my brother and
him; they both knew of it; and both read it, and that will
refresh his memory concerning the date of the other.
MR. MARSHALL--My lord, I was in the coffee-house with Mr.
Cowper when he received this letter; and he afterwards shewed
it to Mr. William Cowper, at the Covent-garden tavern, when I
was by.
CLERK OF ARRAIGNS--This is dated the 9th of March, and directed
to Mrs. Jane Ellen, at Mr. Hargrave's.
'_March 9._
SIR,
I writ to you by Sunday's post, which I hope you have
received; however, as a confirmation, I will assure you
I know of no inconveniency that can attend your
cohabiting with me, unless the grand jury should
thereupon find a bill against me; but I won't fly for
it, for come life, come death, I am resolved never to
desert you; therefore according to your appointment I
will expect you and till then I shall only tell you,
that I am
'Yours,' etc.
'_For Mrs. Jane Ellen, at Mr. Hargrave's,
near Temple-bar, London._'
COWPER--If your lordship please, I will further prove this
letter by my brother.
_William Cowper_ said that about a year and a half since, when Mrs.
Stout was in London, his brother came to his chamber in the Temple, and
told him that he had received a letter from Mrs. Stout, saying that she
intended to visit him in his chamber that day. His brother told the
witness that because of her connection with Marshall, as well as for
other reasons, he would not receive her there; and it was arranged that
as she intended first to dine with their father at his house in Hatton
Garden, where the witness was then living, he should take the
opportunity for casually remarking that the prisoner was that day gone
to Deptford, as he in fact intended to do. This plan was carried out,
with the result that Mrs. Stout left the room fainting. The witness then
went on to give an account of how his brother showed him the last letter
mentioned, at the Covent Garden Tavern--
Saith he, the occasion of my shewing it, is not to expose a
woman's weakness, but I would not willingly lie under too many
obligations, nor engage too far; nor on the other hand would I
be at an unnecessary expence for a lodging.
It was accordingly arranged that the witness should write to Barefoot to
dispose of his lodgings, as Cowper had already related.
I said I would write the next day, being Saturday; but when I
should have writ, it was very late, and I was weary, being then
tied down to the business of parliament; and partly for that
reason, and partly in point of discretion, which I had upon my
second thoughts, that it would be better for my brother to be
at Mr. Barefoot's, which is near the court, and in the market
place, I did neglect writing; and though I thought of it about
eleven o'clock, yet, as I said, partly for one reason, and
partly for another, I did not write that time.'
_Beale_ was then called to prove the hand-writing of the letters, and
the jury declared themselves satisfied.
HATSELL, BARON--I believe you may ask her mother, she will tell
you whether it be her daughter's hand.
MRS. STOUT--How should I know! I know she was no such person;
her hand may be counterfeited.
HATSELL, BARON--But if it were written in her more sober stile,
what would you say then?
MRS. STOUT--I shan't say it to be her hand unless I saw her
write it.
MR. STOUT--It is like my sister's hand.
HATSELL, BARON--Do you believe it to be her hand?
MR. STOUT--No, I don't believe it; because it don't suit her
character.
_Mrs. Barefoot_ had expected Cowper at her lodgings, and had prepared a
bed for him. Cowper came to her house as usual, and sent to the
coffee-house for his bag. Mrs. Stout sent her maid over to invite Cowper
to dine at their house. Cowper came back to her house about eleven, by
the town clock, and did not go out again.
_Hanwell_, the last witness's maid, made some preparations in Cowper's
room before he went to bed, which he did a little before twelve.
Referring to the last-quoted letter of the deceased woman, Cowper says:
'I had rather leave it to be observed, than make the
observation myself, what might be the dispute between us at the
time the maid speaks of. I think it was not necessary she
should be present at the debate; and therefore I might not
interrupt her mistress in the orders she gave; but as soon as
the maid was gone I made use of these objections; and I told
Mrs. Stout by what accident I was obliged to take up my
lodgings at Mrs. Barefoot's, and that the family was sitting up
for me; that my staying at her house under these circumstances,
would in probability provoke the censure of the town and
country; and that therefore I could not stay, whatever my
inclination might otherwise be; but, my lord, my reasons not
prevailing, I was forced to decide the controversy by going to
my lodging; so that the maid may swear true, when she says I
did not contradict her orders.'
_Spurr_ proved that Cowper came to the Glove and Dolphin Inn as the
clock struck eleven, and stayed there about a quarter of an hour. The
Glove and Dolphin was a little less than a quarter of a mile from Mrs.
Stout's house.
Cowper then pointed out that, according to Sarah Walker's evidence, he
left Mrs. Stout's house at a quarter to eleven by the real time; that
if, as he should prove, it took half an hour to go from there to the
place where Mrs. Stout was drowned, he could not, according to the
evidence he had just called, have been there.
_Sir W. Ashurst_ said it took him half an hour and one minute to walk to
the place where the deceased was drowned. _Sir T. Lane_ said it took him
about three-quarters of an hour, 'and we did not stay at all by the way,
except just to look upon the hospital.'
_Kingett_ and _Man_, two servants at the Glove and Dolphin, confirmed
Spurr's evidence as to the time when Cowper arrived there and the time
he stayed there; adding that he came there to ask about an account for
his horse.
HATSELL, BARON--Pray, wherein hath Sarah Walker said anything
that is false?
COWPER--In this: I asked her when she gave evidence, whether
she went out to see for her mistress all that night, and
whether her mistress did not use to stay out at nights, and
whether she herself had not used to say so? If your lordship
pleases to remember, she said no. Pray, Mrs. Mince, what have
you heard Mrs. Stout's maid say concerning her mistress,
particularly as to her staying out all night?
MRS. MINCE--She hath said, that her mistress did not love to
keep company with Quakers; and that she paid for her own board
and her maid's; and that, when she entertained any body, it was
at her own charge. And she hath said, that Mrs. Stout used to
ask, who is with you, child? and she would not tell her; and
that she did entertain her friends in the summer house now and
then with a bottle of wine; and when her mother asked who was
there? her mistress would say, bring it in here, I suppose
there is none but friends; and after the company was gone, she
used to make her mother believe that she went to bed: but she
used to go out and take the key with her, and sometimes she
would go out at the window, and she said particularly, one time
she went out at the garden window, when the garden door was
locked, and that she bid her not sit up for her, for she would
not come in at any time.
HATSELL, BARON--Did ever Sarah Walker tell you that Mrs. Stout
staid out all night?
MRS. MINCE--She hath said, she could not tell what time she
came in, for she went to bed.
_Cowper_ offered to prove that Gurrey, at whose house the other
prisoners had stayed, had said that if he had gone to visit Mrs. Stout,
meaning apparently, if he had gone to visit the mother after the
daughter's death, the prosecution would not have taken place. To this he
would answer that he never had gone to see her in his life.
Now, for a man officiously to make a new visit in the time of
the assizes, one engaged in business as I was, and especially
upon so melancholy an occasion; I say for me to go officiously
to see a woman I never had the least knowledge of, would have
been thought more strange (and justly might have been so) than
the omission of that ceremony. For my part, I cannot conceive
what Mr. Gurrey could mean, this being the case, by saying,
that if I had visited Mrs. Stout, nothing of this could have
happened.
HATSELL, BARON--Mr. Cowper, he is not the prosecutor, I think
it is no matter what he said.
_Sir W. Ashurst, Sir T. Lane, and Mr. Thompson_ were then called to
Cowper's character, and described him as a humane, upright, and capable
man.
This concluded the case against Cowper, and the case of Marson was next
considered. In reply to a question from the judge, he explained that
Stephens was the clerk of the paper in the King's Bench; that Rogers was
steward of the King's Bench; and that it was their duty to wait upon the
Lord Chief-Justice of the King's Bench out of town. On Monday they all
went to the Lord Chief-Justice's house in Lincoln's Inn Fields,
according to their custom, and all set out from there. Marson, being
only an attorney in the borough court, could not go further with the
others than Kingsland, and returned from there to his business in
Southwark, where he attended the Court, as was his duty, and set out
again at past four in the afternoon. On arriving at Waltham he met one
Mr. Hanks, a clergyman, who was returning from attending the Lord
Chief-Justice to Hertford, whom he persuaded to return with him to
Hertford, on the plea that he did not know the way. They galloped all
the way, and did not arrive at Hertford till eight. There they found the
marshal, Stephens, Rogers, Rutkin, and others of the marshal's
acquaintance at the coffee-house, from which they went to the Glove and
Dolphin, and stayed there till eleven o'clock. Rogers and the witness
had a dispute about which of them should lie with Stephens at Gurrey's
house, and they all went to Gurrey's to see what could be arranged, and
to drink a glass of wine. Eventually Stephens, Rogers, and Marson, all
stayed at Gurrey's; while Hanks and Rutkin went back to the marshal's.
The party at Gurrey's drank three bottles of wine,
and afterwards, in jocular conversation, I believe Mr. Stephens
might ask Mr. Gurrey if he knew of one Mrs. Sarah Stout? And
the reason why he asked that question our witness will explain.
I believe he might likewise ask what sort of woman she was? and
possibly I might say the words, My friend may be in with her,
though I remember not I did say anything like it; but I say
there is a possibility I might, because I had heard she had
denied Marshall's suit, and that might induce me to say, My
friend may be in with her, for all that I remember. I confess
Mr. Rogers asked me what money I had got that day, meaning at
the Borough Court? I answered fifty shillings; saith he, we
have been here a-spending our money, I think you ought to treat
us, or to that purpose. As to the bundle mentioned I had no
such, except a pair of sleeves and a neck-cloth. As to the
evidence which goes to words spoken, the witnesses have
fruitful inventions; and as they have wrested and improved the
instances I have been particular in, so they have the rest, or
otherwise forged them out of their own heads.
HATSELL, BARON--Mr. Rogers, what do you say to it?
ROGERS--We came down with the marshal of the King's bench, it
rained every step of the way, so that my spatter-dashes and
shoes were fain to be dried; and it raining so hard, we did not
think Mr. Marson would have come that day, and therefore we
provided but one bed, though otherwise we should have provided
two, and were to give a crown for our night's lodging. We went
from the coffee-house to the tavern, as Mr. Marson has said,
and from the tavern the next way to our lodging, where there
was some merry and open discourse of this gentlewoman; but I
never saw her in my life, nor heard of her name before she was
mentioned there.
STEPHENS--We never stirred from one another, but went along
with the marshal of the King's bench, to accompany my lord
chief-justice out of town, as is usual.
HATSELL, BARON--I thought it had been as usual for him to go
but half the way with my lord chief-justice.
ROGERS--They generally return back after they have gone half
the way, but some of the head officers go throughout.
STEPHENS--It was the first circuit after the marshal came into
his office, and that is the reason the marshal went the whole
way.
HATSELL, BARON--Did not you talk of her courting days being
over?
PRISONERS--Not one word of it; we absolutely deny it.
STEPHENS--I never saw her.
JONES--Mr. Marson, did you ride in boots?
MARSON--Yes.
JONES--How came your shoes to be wet?
MARSON--I had none.
_Hunt_ gave an account of how he was at the Old Devil Tavern at Temple
Bar, on Sunday night, and Marson and three or four others of Clifford's
Inn being there at the same time, discoursing of the marshal's attending
the Lord Chief-Justice to Hertford, Marson said he too might be required
to go; on which one of the company said, 'If you do go to Hertford, pray
enquire after Mr. Marshall's mistress, and bring us an account of her;'
and it was this discourse that gave occasion to talk of Mrs. Stout at
Gurrey's house, which was done openly and harmlessly. This story was
corroborated by one Foster, who had been at the Devil; and Stephens
offered to call another witness to the same purpose, but was stopped by
the judge.
_Hanks_ was called, and gave the same account of his arrival in Hertford
as Marson had already given. He was in Marson's company from the time he
met him till he left him at his lodgings, at about eleven o'clock.
_Rutkin_ was called by Marson to give an account of his coming to
Hertford.
RUTKIN--My lord, I came to wait on the marshal of the King's
Bench to Hertford, and when we were come to Hertford we put up
our horses at the Bull, and made ourselves a little clean; we
went to church, and dined at the Bull, and then we walked in
and about the court, and diverted ourselves till about seven
o'clock; and between seven and eight o'clock came Mr. Marson
and Dr. Hanks to town, and then we agreed to go to the Dolphin
and Glove to drink a glass of wine; the marshal went to see an
ancient gentleman, and we went to the Dolphin and Glove, and
staid there till past ten o'clock, and after the reckoning was
paid we went with them to their lodging, with a design to drink
a glass of wine; but then I considered I was to lie with the
marshal, and for that reason I resolved not to go in, but came
away, and went to the Bull Inn, and drank part of a glass of
wine and afterwards went to the next door to the Bull Inn,
where I lay with the marshal.
_Marson_ called witnesses to character, who swore that they had always
had a good opinion of him, that they had never seen him but a civilised
man, that he had been well brought up amongst them, and that they had
never seen him given to debauchery.
_Cowper_ said that he was concerned to defend the other prisoners as
much as himself, and that there was something he wished to say in their
behalf.
'The principal witness against them is one Gurrey; and I will
prove to you, that since he appeared in this court, and gave
his evidence, he went out in a triumphant manner, and boasted
that he, by his management, had done more against these
gentlemen than all the prosecutor's witnesses could do besides.
To add to that I have another piece of evidence that I have
just been acquainted with; my lord, it is the widow Davis,
Gurrey's wife's sister, that I would call.
_Mrs. Davis_ was asked by her sister to help her lay the sheets for the
men in Gurrey's house, and while she was doing so the gentlemen came
into the room; it was then about ten, or something later. They had three
quarts of wine and some bread and cheese, and then went to bed; and
after that Gurrey went to fetch Gape, who lodged at his house, from
Hockley's.
COWPER--I only beg leave to observe that Gurrey denied that he
went for him.
HATSELL, BARON--Ay; but this signifies very little, whether it
be true or false.
Various other witnesses were called, who gave all the prisoners
excellent characters in their private and professional capacities.
JONES--My lord, we insist upon it, that Mr. Cowper hath given a
different evidence now, from what he did before the coroner;
for there he said he never knew any distraction, or love fit,
or other occasion she had to put her upon this extravagant
action. Now here he comes, and would have the whole scheme
turned upon a love-fit. Call John Mason.
_Mason_, in answer to questions put to him by Mr. Stout and Jones, said
that Cowper, before the coroner, had said that he knew no cause for Mrs.
Stout's suicide; and that she was a very modest person. He was asked
whether he knew any person she was in love with, and he said he knew but
of one, and his name was Marshall, and he was always repulsed by her.
_Archer_ was present at the inquest, and heard Cowper say that he knew
no occasion of Mrs. Stout's death, nor of any letters.
COWPER--Then I must call over the whole coroner's inquest, to
prove the contrary.
HATSELL, BARON--Did they ask him concerning any letters?
ARCHER--They asked him, If he knew of any thing that might be
the occasion of her death?
HATSELL, BARON--I ask you again, if they asked him if he knew
of any letters?
ARCHER--My lord, I do not remember that.
MR. STOUT--I would have called some of the coroner's inquest
but I was stopped in it.
JURYMAN--We have taken minutes of what has passed; If your
lordship pleases we will withdraw.
HATSELL, BARON--They must make an end first.
_Mrs Larkin_ was called, and said that Rutkin came to her house between
nine and ten, and that the marshal did not come in till an hour
afterwards.
_Mr. Stout_ desired to call witnesses to his sister's reputation; and
_Jones_ said that the whole town would attest to that.
_Hatsell, Baron_, then summed up. He said that the jury could not expect
that he should sum up fully, but that he would notice the most material
facts, and that if he omitted any thing, Jones or Cowper would remind
him of it. He then recapitulated Sarah Walker's evidence, very briefly;
and then went on:--
The other witnesses that came afterwards, speak concerning the
finding of the body in the river, and tell you, in what posture
it was. I shall not undertake to give you the particulars of
their evidence; but they tell you she lay on her right side,
the one arm up even with the surface of the water, and her body
under the water; but some of her cloaths were above the water.
You have also heard what the doctors and surgeons said on the
one side and the other, concerning the swimming and sinking of
dead bodies in the water; but I can find no certainty in it;
and I leave it to your consideration.
Further, there were no signs of water in the body, and it was said that
this was a sign that she was not drowned; but then it was answered that
it might show that she had drowned herself, because if she wished to
drown herself she would choke herself without swallowing any water.
The doctors and surgeons have talked a great deal to this
purpose, and of the water's going into the lungs or the thorax;
but unless you have more skill in anatomy than I you would not
be much edified by it. I acknowledge I never studied anatomy;
but I perceive that the doctors do differ in their notions
about these things.... Gentlemen, I was very much puzzled in my
thoughts, and was at a loss to find out what inducement there
could be to draw in Mr. Cowper, or these three other gentlemen,
to commit such a horrid, barbarous, murder. And on the other
hand, I could not imagine what there should be to induce this
gentlewoman, a person of plentiful fortune, and a very sober
good reputation, to destroy herself.'
But if they believed the letters that had been produced to be in her
hand, there was evidence to show that although she was a virtuous woman,
a distemper might have turned her brains, and discomposed her mind.
As to these three other gentlemen that came to this town at the
time of the last assizes, what there is against them, you have
heard; they talked at their lodging at a strange rate,
concerning this Mrs. Sarah Stout, saying, her business is done,
and that there was an end of her courting days, and that a
friend of theirs was even with her by this time. What you can
make of this, that I must leave to you; but they were very
strange expressions; and you are to judge whether they were
spoken in jest, as they pretend, or in earnest. There was a
cord found in the room, and a bundle seen there, but I know not
what to make of it. As to Mrs. Stout, there was no sign of any
circle about her neck, which, as they say, must have been if
she had been strangled; some spots there were; but it is said,
possibly these might have been occasioned by rubbing against
some piles or stakes in the river. Truly, gentlemen, these
three men, by their talking, have given great cause of
suspicion; but whether they, or Mr. Cowper, are guilty or no,
that you are to determine. I am sensible I have omitted many
things; but I am a little faint, and cannot remember any more
of the evidence.
The jury then retired, and in half an hour returned with a verdict of
Not Guilty as to all the prisoners.
The acquittal in this case led to an appeal of murder, the most curious
survival of the earliest English criminal procedure, which was not
finally abolished till 1819. The effect of such a proceeding was that
after an acquittal on an indictment for murder, the prosecutor might
challenge the accused to an ordeal by battle. Accordingly, in the long
vacation following the trial, Mrs. Stout, the mother of the dead woman,
sued a writ of appeal out of Chancery, against Cowper, in the name of an
infant who was her daughter's heir. The sealing of the writ was delayed,
it is said to nearly the last possible day, a year after the alleged
murder, for the purpose of keeping the matter in suspense as long as
possible; and the consent of the mother of the infant to Mrs. Stout's
being named as his guardian for the purpose, was obtained from her by a
fraudulent representation that the object of the proceeding was to
obtain the deceased woman's property for him. On discovering what its
real effect was, she and her friends applied to one Toler, the
under-sheriff of Hertfordshire, for the writ, and on his giving it up to
them, burnt it. On a rule being obtained for the return of the writ, and
it appearing that Toler had delivered it to the infant's mother, he was
adjudged guilty of a gross contempt, and heavily fined. Holt, Lord
Chief-Justice, said on this occasion that
he wondered that it should be said that an appeal is an odious
prosecution. He said he esteemed it a noble remedy, and a badge
of the rights and liberties of an Englishman. The court of
king's bench, to show their resentment, committed Toler to the
prison of the king's bench for his fine, though the clerk in
court would have undertaken to pay it. And Holt, chief-justice,
said to Toler, that he had not been in prison long enough
before, and that he might now, if he pleased, go to Hertford
and make his boast that he had got the better of the king's
bench.
Afterwards Mrs. Stout petitioned the Lord Keeper for another writ; the
infant and his mother presenting a counter-petition disowning their
former writ as sued forth without their consent. After an argument
before a full court it was decided that the Court had power to grant a
new writ, but that it would be unjust to grant one under the present
circumstances, because, among other reasons, the appellant and his
mother had renounced the writ as soon as they understood its nature, and
there was no proof that the appellees had been privy to their action.
FOOTNOTES:
[43] Spencer Cowper (1669-1727) was the younger brother of Earl Cowper,
who was the first Lord Chancellor of Great Britain. He was educated at
Westminster, and made Controller of the Bridge House Estates in 1690. At
the time of this trial his brother was the member for Hertford. In 1705
and 1708 he represented Beeralston in Parliament; he was one of the
managers in Sacheverell's trial, and lost his seat in consequence, but
was afterwards elected for Truro in 1711. In 1714 he became
Attorney-General to the Prince of Wales, and in 1717 Chief-Justice of
Chester. On the accession of George the Second he was made
Attorney-General of the Duchy of Chester, and a Judge of the Common
Pleas in 1727. He died the same year. He was the grandfather of William
Cowper the poet.
[44] Sir Henry Hatsell (1641-1714) was the son of an active Roundhead
who sat in the House of Commons during the Commonwealth. He was educated
at Exeter College, was called to the Bar in 1667, and became a Baron of
the Exchequer in 1697. The present trial was the most conspicuous with
which he was connected, from which fact it may be supposed that he never
enjoyed a very high reputation. He was removed from the Bench soon after
Queen Anne's accession.
[45] This John Dimsdale was apparently the father of the first Baron
Dimsdale, who inoculated Catharine of Russia and the Grand Duke Paul,
her son, for smallpox in 1728. John's father was William, who
accompanied William Penn to America in 1684; so that it is not clear who
the Mr. Dimsdale, senior, and Dr. Robert Dimsdale of this trial were.
The family is, however, one which has long been settled in
Hertfordshire.
[46] _Vulgar Errors_, Book IV., ch. vi., 'Of Swimming and Floating.'
[47] The Lord of the Manor might have a right to the forfeited goods of
a felon.
[48] Sir Hans Sloane (1660-1753) was born in Co. Down. He studied
medicine abroad, and was elected a member of the Royal Society in 1685.
In 1687 he went to the West Indies as secretary to the Duke of
Albemarle, and made valuable scientific collections. He was elected
secretary of the Royal Society in 1693, and succeeded Sir Isaac Newton
as president of the same body in 1727. He was physician to Queen Anne
and George the Second, and founded the botanical garden at Chelsea for
the Society of Apothecaries. He left his collections to the nation, and
they formed part of the original nucleus of the British Museum. Sloane
Street and Hans Square derive their names from him.
[49] The lay reader must observe that Sloane is talking of the 'civil
law.'
[50] William Cowper (1666-1709) was a leading surgeon at the time of
this trial, having been elected a member of the Royal Society in 1696,
and in 1698 having published a treatise on anatomy, which led to a
vigorous controversy between him and a Dutch doctor of the name Bidloo,
whose anatomical plates he seems to have adopted for his own work. He
subsequently published a variety of papers on surgery, and was the
discoverer of Cowper's glands.
SAMUEL GOODERE AND OTHERS
On the 18th of March 1741, at the Bristol Gaol-delivery, Samuel
Goodere,[51] Matthew Mahony, and Charles White were indicted for the
murder of Sir John Dineley Goodere, the brother of the first-named
prisoner. They were tried before Serjeant Michael Foster.[52] The trial
was adjourned to the 26th on account of Goodere's health, when there
appeared for the prosecution _Vernon_, and for the prisoner _Goodere_,
_Shepard_ and _Frederick_. The other prisoners were undefended.
_Vernon_ opened the case. He began--
May it please you, Mr. Recorder, and you, gentlemen that are
sworn on the jury, I am counsel for the King against the
prisoners at the bar, who stand indicted for the murder of sir
John Dineley Goodere; they are also charged on the coroner's
inquest with the same murder; and though it is impossible for
human nature not to feel some emotions of tenderness at so
affecting a sight as now presents itself at the bar; yet,
gentlemen, should the guilt of this black and frightful murder
be fixed upon the prisoners (as from my instructions I fear it
will be), pity must then give way to horror and astonishment at
the baseness and barbarity of the fact and circumstances; and
our sorrow ought to be that, through the lenity of the laws,
the unnatural author and contriver of so shocking a piece of
cruelty, and this, his brutal accomplice in the ruffianly
execution of it, should be to share the common fate of ordinary
malefactors.
He then proceeds to point out that the indictment alleges that Mahony
strangled the deceased, and that Goodere was present aiding and abetting
him in the act; that therefore it would be immaterial for the jury which
of the two actually committed the act, if they were acting together; and
that it would not be material whether they strangled the deceased with a
rope, a handkerchief, or their hands, 'so the kind of death be proved.'
Goodere was Sir John's brother, and there had long been a quarrel
between them owing to various causes, particularly because Sir John had
cut off the entail of a property in Worcestershire, to which Goodere
would otherwise have been the heir in default of Sir John's issue. He
had recently been appointed captain of the _Ruby_ man-of-war, and in
January last she was lying in the King's road, within the county of
Bristol. Sir John had been ordered to Bath for his health, and had made
an engagement to call, on his way there, at the house of Mr. Jarrit
Smith, in Bristol, to transact some business. Goodere had asked Smith to
arrange a meeting between him and his brother to effect a
reconciliation, and accordingly this visit, which was to take place on
Tuesday the 13th of January, had been fixed upon for the purpose. On
Monday the 12th, Goodere and Mahony called at the White Hart Inn, near
the foot of College Green, in view of, and almost opposite to, Smith's
house; and Goodere, commending the view from a closet above the porch,
ordered breakfast to be prepared for him there the next day. On Tuesday,
Goodere, accompanied by Mahony, and a gang of men belonging to a
privateer called the _Vernon_, whom he had hired to assist him in
seizing Sir John, 'but whom one would have thought, the name of that
gallant admiral should have inspired with nobler sentiments,' came to
the White Hart, where Goodere went upstairs to the closet he had
ordered, and the others posted themselves below to watch for Sir John.
He soon arrived, armed with pistols, and followed by a servant, but only
made a short stay at Mr. Smith's, promising to come again the next
Sunday. He was too well protected for it to be advisable to interfere
with his movements, but Goodere's men, at his order, followed him a
little way down the hill as he left the house. Mr. Smith afterwards told
Goodere that his brother would return the next Sunday, and advised him
to be in the way, that he might bring them together. Goodere accordingly
made all his arrangements to effect his purpose. He ordered one
Williams, a midshipman, to bring up the man-of-war's barge on Sunday, to
leave it at a point a little below Bristol, with two or three men in
charge of her, and to bring on the rest of the crew to meet him at the
White Hart, explaining that he was going to bring some one on board.
Accordingly, on the Sunday, Goodere, the barge-men, and the
privateersmen, all met at the White Hart; and at three in the afternoon
Goodere went across to Mr. Smith's. There he met his brother, with whom
he spent some time, conversing and drinking with him apparently on
perfectly friendly terms. After half an hour, however, Sir John rose to
go, followed by his brother; as soon as they got into the street Goodere
made a sign to his men in the White Hart, who immediately seized Sir
John, and partly led him, and partly carried him towards the boat which
was waiting for them, as Goodere had ordered. Sir John made what
resistance he could, calling out that he was ruined, and that his
brother was going to take his life; his captors, however, explained to
bystanders who tried to interfere that he was a murderer, whom they were
arresting, and kept off the crowd by means of the bludgeons and
truncheons with which they were armed. They could not prevent Sir John,
however, from calling out, as he was being put into the barge, that he
was going to be murdered, that the people by were to tell Mr. Smith, and
that his name was Sir John Dineley. The privateersmen were landed lower
down the river, and at about seven in the evening Sir John was brought
on board the _Ruby_. There his brother pretended to the crew that he was
a madman, and shut him up in the purser's cabin, on to the door of
which he had two new bolts fitted. A sentry was posted outside the door,
but at some time after midnight he was relieved by Goodere himself, who
admitted Mahony and White, keeping back another man from approaching it.
A struggle was heard in the cabin, and Sir John calling out, 'Murder!
must I die! Help, for God's sake! save my life, here are twenty guineas,
take it!' Then Mahony called for a light, which was handed in to him by
Goodere, while he still kept another man away from the cabin door by his
cutlass. Goodere then withdrew to his cabin, and Mahony and White were
put ashore in the ship's yawl. In the morning the ship's cooper, who had
heard Sir John calling out, and in fact seen a part of the attack on him
through a chink, broke open the door of the purser's cabin and found the
dead body. Goodere was then arrested by the crew, and brought before the
Mayor of Bristol, where he denied all knowledge of the matter.
_Shepard_ asked that the witnesses for the prosecution should be ordered
out of court.
_Vernon_ replied that he had no right to this, and that as it would seem
to cast a slur upon their honesty he objected to it being done.
_Shepard_ admitted that he had no right to it, but asked it as a favour;
on which all witnesses were ordered to leave the court, an exception
being made in favour of Mr. Jarrit Smith, who claimed a right to be
present as he was prosecuting solicitor as well as a witness.
_Chamberlayn_ was called, and said that about three weeks before the
death of Sir John he was asked by Goodere to interpose with Mr. Jarrit
Smith to bring about a reconciliation between him and Sir John. He went
to Mr. Smith as he was asked to, and he promised to do all he could in
the matter. The brothers had been at law a long while, and spent a great
deal of money, and that was why Goodere wanted Mr. Smith to bring about
a reconciliation between them.
_Jarrit Smith_ was then called, and deposed that Mr. Chamberlayn had
brought him the message he had described, and had brought Goodere to his
house, and that he had promised him to do what he could to bring about a
reconciliation.
Some little time after they were gone, I saw sir John, and told
him that Mr. Goodere had applied to me to do all I could to
reconcile them. Sir John seemed to speak much against it at
first, and thought it would be to no purpose; for that he had
been a real friend to the captain, who had used him very ill;
but at last he was pleased to pass a compliment on me, and
said, I cannot refuse anything you ask of me. He then mentioned
several things the captain had said; and in particular told me
that at the death of sir Edward Goodere, his father, Mr.
Goodere, the prisoner, had placed several persons in the house
where sir Edward lay dead, in order to do him some mischief,
and he apprehended to take away his life.
SHEPARD--I must submit it to the Court, that what sir John said
at that time is not a matter of evidence.
THE RECORDER--It is not evidence, but perhaps it is
introductory to something Mr. Smith has further to say; if it
be not, it should not have been mentioned.
SMITH--And that he had endeavoured to set aside a common
recovery, and made strong application to the Court of Common
Pleas for that purpose.
SHEPARD--Whether this be evidence, I insist upon it that in
point of law it is not, and it may have an effect on the jury.
THE RECORDER--I will take notice to the jury what is not
evidence. Go on, Mr. Smith.
SMITH--After sir John had repeated several stories of this
sort, he concluded at last (as I told you before), And why, Mr.
Smith, if you ask it of me, I can't refuse. I saw Mr. Goodere
soon after, and told him I had seen sir John and talked with
him, and he was pleased to tell me, that he would see him, and
bid me contrive a convenient place to bring them together. I
told Mr. Goodere about the attempt to set aside the recovery. I
wonder, said Mr. Goodere, he should mention anything of that,
for I can set it aside when I please. I told him, I thought he
could not; for, said I, I have a good opinion on it, and am to
lend a large sum of money on the Worcestershire estate. He
said, I wonder that any body will lend him money on that
estate; I am next in remainder, and they will run a risk of
losing their money, I do assure you; and he cannot borrow a
shilling on it without my consent: but if my brother was
reconciled, then, if we wanted money, we might do it together,
for he cannot secure it alone. He told me, that he should take
it as a great favour, if I could fix a time as soon as I could
to bring them together. Soon after I saw sir John, and he told
me he was very deaf, and was advised to go to Bath, and then
appointed to be with me on Tuesday, the 13th of January last,
in the morning, when he would talk with me about the business
of advancing the money on his estate. After this I saw Mr.
Goodere, and told him that I had seen his brother; that he was
to be with me on Tuesday, the 13th of January last, and desired
him to be in the way, for sir John was always very punctual to
his appointment; and if business or anything happened to
prevent him he always sent me a letter. Mr. Goodere thanked me,
and told me he would be in the way; and on the Tuesday morning
sir John came to me on horseback, just alighted and came into
my office. I asked him to sit down, which he refused, saying
his head was bad; that he must go for Bath, having been advised
to go there for some time, and then he did not doubt but he
should be better. I told sir John, that his brother knew he was
to be in town therefore hoped he would sit down a little, for
that I had promised him to bring them together. He said, I
can't now, but you shall see me again soon, and then I may do
it. I asked him, when shall I see you again, to finish the
business you and I are upon? the writings are ready, name your
own time, the money will be paid. He appointed to be with me on
Monday morning to settle that business; and said, I shall come
to town the Saturday or Sunday before, and when I come I will
let you know it: he then mounted his horse and rid off.
Shortly after (as I was going to the Tolzey) at, or under
Blind-gate, I met Mr. Goodere, and told him I was glad to see
him and that his brother had been in town. He said he had seen
him and thought he looked better than he used to do. I told Mr.
Goodere that his brother had appointed to be with me on Monday
morning next on business, and I expected him to be in town
either the Saturday or Sunday before. I then had many
compliments from Mr. Goodere, and he said, how good it would be
to make up the matter between him and his brother. I heard
nothing of sir John being in town till Sunday the 18th of
January last, in the morning, when he sent me a letter to let
me know that he came to town the night before, and would be
glad to call upon me at any time I would appoint. I sent him
for answer, that I was to dine from home, but would return and
be at home at three o'clock that afternoon. And as I was
passing by, I stopt the coach at captain Goodere's lodgings in
Princes Street. I asked if he was at home? Found him alone, and
then shewed him sir John's letter. He read it, and asked the
time I appointed. I told him three o'clock that afternoon. Said
he, I think my brother writes better than he used to do. I
said, Mr. Goodere, I think it would be best for you to be
accidentally on purpose at that time at my house. No, says he,
I don't think that will be so well, I think it would be better
for you to send for me. I returned to my house, and my servant
told me that sir John had called, and that he would be here
again presently. Whilst my servant was telling this, sir John
came in; I took him by the hand, and asked him how he did? I
thank God, says he, I am something better; and after I have
settled this affair with you, I will go to Bath for some time,
and then, I hope, I shall be better. I said, captain Goodere is
waiting, I beg you will give me leave to send for him; you know
you said you would see him. With all my heart, says sir John, I
know I gave you leave. I then sent down a servant to captain
Goodere's lodgings, to let him know sir John was with me, and
desired him to come up. The servant returned, and said, Here is
captain Goodere; on which I said, sir John, please to give me
leave to introduce your brother. He gave me leave: captain
Goodere came in, went directly and kissed him as heartily as
ever I had seen any two persons who had real affection one for
the other. I desired them to sit down. Sir John sat on one side
of the fire, and captain Goodere on the other, and I sate
between them. I called for a table and a bottle of wine, and
filling a full glass, I said, sir John, give me leave to drink
love and friendship. Ay, with all my heart, says sir John; I
don't drink wine, nothing but water; notwithstanding, I wish
love and friendship. Captain Goodere filled a bumper, and
pledged it, spoke to his brother, and drank love and friendship
with his brother's health. We sate some time, all seemed well,
and I thought I could have reconciled them. The cork lying out
of the bottle, captain Goodere takes up the cork in his hand,
put it into the mouth of the bottle and struck it in very hard.
I then said, though sir John will not drink wine, you and I
will. No, says captain Goodere, I will drink water too, if I
drink any more; and there was no more drank. After they had
talked several things (particularly captain Goodere of the
pleasantness of the situation of the estate in Herefordshire
and goodness of the land) in a very pleasant and friendly way,
sir John rose up, and said, Mr. Smith, what time would you have
me be with you to-morrow morning? I appointed nine o'clock. He
said, Brother, I wish you well; then said to me, I will be with
you half an hour before. Sir John went down the steps; the
captain was following; I stopt him, and said, Pray don't go,
captain, let you and I drink a glass of wine. No more now, I
thank you, sir, said he. I think, said I, I have done great
things for you. He paused a little and said, By God, it will
not do; and in a very short time the captain went very nimbly
down the steps. I followed him to the door, and observed him to
go after sir John down the hill; and before he turned the
churchyard wall, to be out of my sight, I observed some sailors
come out of the White Hart ale-house, within view of my door,
and they ran up to captain Goodere. I heard him say, Is he
ready? (I thought he meant the boat), they said, Yes. He bid
them make haste. Then they ran very fast towards the
lower-green, one of them having a bottle in his hand; captain
Goodere went very fast down the hill, and had it not been by
mere accident I should have followed him (but some people think
it was well I did not), for I promised my wife to return to the
house where we dined in Queen's-square, where I went soon
after.
MR. RECORDER--Mr. Smith, did they all go toward the lower
green?
SMITH--No, Sir; but some towards the butts on St. Augustine's
back. Sir John went that way, and captain Goodere followed him;
but the men who came out of the ale-house went toward the lower
green some of them. About 5 o'clock in the evening, as I was
riding up the hill towards the College-green I observed a
soldier looked hard at me into the coach, as if he had
something to say, and seemed to be in a confusion. I walked
into the court, the soldier with me, and then he said, I am
informed, Sir, your name is Mr. Jarrit Smith. Yes, says I, it
is. (What I am now going to say, Mr. Recorder, is what the
soldier told me.) He told me, that as he was drinking with a
friend at the King's Head ale-house at the Lime-kilns, he heard
a noise, and ran out to see what was the matter, when he saw a
person dressed (as he described) like sir John's dress.
VERNON--Pray, Sir, how was sir John dressed?
SMITH--Sir John was dressed in black clothes, he had a ruffled
shirt on, a scarlet cloak, a black velvet cap (for the sake of
keeping his ears warm) and a broad-brimmed hat flapping. He
described this exactly, and told me likewise, that the captain
of the man-of-war and his crew had got the person into custody,
and by force had put him on board the man-of-war's barge or
boat lying near the Slip, by the King's Head; that the
gentleman cried out, For God's sake if you have any pity or
compassion upon an unfortunate man, go to Mr. Jarrit Smith, and
tell him how I am used: and that the captain hearing him cry
out, stopt his mouth with his hand.
MR. RECORDER--What did the soldier desire of you?
SMITH--The soldier desired me to enquire into it, for that he
did not know the intention of taking off a gentleman in that
way.
MR. RECORDER--Did you do any thing on that request of the
soldier?
SMITH--Yes, Sir; it immediately occurred to me, that sir John,
when he left my house, told me that he was going to his
lodgings. I went to his lodgings (which was at one Mr. Berrow's
near the mint), I there asked for him, and related the story I
had heard; they told me they had not seen him since he went to
my house.
VERNON--Mr. Smith, Sir, will you inform us by what name the
unfortunate gentleman (you are speaking of) was commonly
called?
SMITH--Sir John Dineley Goodere; his mother was a Dineley, and
there came a great estate from her side to him, which
occasioned his being called by the name of Dineley.
VERNON--When sir John went from your house on Tuesday, was he
alone, or had he any attendants with him?
SMITH--Sir John was well guarded; he had pistols, and I think
his servant had pistols also.
VERNON--I think you told us but now, that sir John was to be
with you on Sunday; pray, when did you let Mr. Goodere know it,
Sir?
SMITH--I met captain Goodere that very day at Blind-gate, and
told him of it; and he said, he had met his brother himself.
VERNON--Pray, Sir, did Mr. Goodere tell you, to whom the estate
would go on sir John's death?
SMITH--Yes, he has often said he was the next remainder man,
and that the estate would come to himself on his brother's
death.
MR. RECORDER--Well, Mr. Goodere, you have heard what Mr. Smith
hath said, have you any questions to ask him?
MR. SHEPARD--Mr. Recorder, what I have to ask of you, with
submission, in behalf of Mr. Goodere, is, that you will indulge
counsel to put his questions for him to the Court, and that
the Court will then be pleased to put them for him to the
witnesses. It is every day's practice at the courts of
Westminster, Old Bailey, and in the Circuit.
_Vernon_ replied that the matter was entirely in the discretion of the
Court, and that Shepard could ask for nothing as a matter of right.
The judges, I apprehend, act as they see fit on these
occasions, and few of them (as far as I have observed) walk by
one and the same rule in this particular; some have gone so far
as to give leave for counsel to examine and cross-examine
witnesses, others have bid counsel propose their questions to
the court; and others again have directed that the prisoner
should ask his own questions; the method of practice in this
point is very variable and uncertain; but this we certainly
know, that by the settled rule of law the prisoner is allowed
no other counsel but the court in matters of fact, and ought
either to ask his own questions of the witnesses, or else
propose them himself to the Court.
He then asked Jarrit Smith one more question, to which he replied.
VERNON--Sir, I think you were present when Mr. Goodere was
brought to Bristol after his brother's being killed; I'd be
glad to know whether you then heard him say anything, and what,
concerning this foul business?
SMITH--I was present when Mr. Goodere was brought to Bristol
after this murder happened, when he was asked (before the
justices) about the seizing, detaining and murdering sir John
Dineley; and he then directly answered that he did not know
that his brother was murdered or dead. He was then asked in
relation to the manner of seizing him, and carrying him away;
he said he knew nothing of it till he came to the boat, and
when he came there he saw his brother in the boat; but he did
not know that his brother had been used at that rate.
SHEPARD--Mr. Smith, Sir, you are speaking about sir John; by
what name did you commonly call him?
SMITH--Sir John Dineley Goodere.
THE RECORDER--Mr. Goodere, have you any questions to ask Mr.
Smith?
GOODERE--Yes, Sir. Mr. Smith, I ask you what sir John Dineley's
business was with you, and how much money were you to advance?
SMITH--Five thousand pounds, Sir; and I told him that I was
satisfied that it was a good title.
GOODERE--I ask you if you knew him to be a knight and a
baronet?
SMITH--I can't tell; I never saw the letters patent.
GOODERE--Can't you tell how you styled him in the writings?
_Vernon_ objected to this, because baronetage must be derived from
letters-patent, and therefore could not be properly proved by Mr.
Smith's personal knowledge; and added that it was not material, because
the indictment alleged that the person murdered was Sir John Dineley
Goodere, and the prosecution would prove that he usually went by that
name.
To this _Shepard_ answered that if the person killed was a baronet, and
was not so described, there was a misdescription, and the prisoners
could not be convicted on that indictment.
_Vernon_ then argued at some length that the necessity of setting out a
personal description in an indictment applied only to the defendant, and
that all that the law required in the description of the person on whom
the offence was committed was a convenient certainty; and that a
description by the Christian and surname sufficed. Besides, this was all
begging the question, for as it did not appear in proof that the
deceased was a baronet, he might, for all that appeared judicially, have
been christened Sir John.
Had we called the deceased in the indictment sir John Dineley
Goodere baronet, then, Sir, we should probably have been told
that we had failed in proof of the identity of the person, for
that the baronetage was in its creation annexed to, and made a
concomitant on, the patentee's name of Goodere, and waited only
on that name; and that the deceased, considered as a baronet,
was not of the maternal name of Dineley, and so upon the matter
no such person as sir John Dineley Goodere baronet ever existed
_in rerum natura_.[53]
_Shepard_ pointed out that they could not be expected to produce
letters-patent to show that the deceased was a baronet, because the
prisoner had not been allowed to see, or to have a copy of his
indictment; and that it was only on hearing it read that the defence
became aware that the deceased was not described as a baronet. He
therefore hoped that Goodere might be allowed to ask the question he
proposed of Mr. Smith, who having been familiar with Sir John, and seen
all his papers and title-deeds, must know the certainty of his title and
degree.
_The Recorder_ held that it was sufficient if the deceased was described
by his Christian and surname; and that the question proposed to the
witness was improper, for that it was not material whether the deceased
was a baronet or not.[54]
_Morris Hobbs_ was the landlord of the White Hart. He could see Mr.
Jarrit Smith's house from his windows; and had seen the prisoners
before.
VERNON--I would not lead you in your evidence, but would be
glad you'd give an account to Mr. Recorder, and the jury,
whether Mr. Goodere (the gentleman at the bar) applied to you
about coming to your house; if so, pray tell us when it was,
and upon what occasion?
HOBBS--The 12th of January (which was on Monday) captain
Goodere and Mahony came to my house; captain Goodere asked my
wife, Have you good ale here? She said, Yes; he also asked,
What place have you over-head? I answered, A closet, a place
where gentlemen usually sit to look out. Will you please to let
me see it, says he? Yes, Sir, said I. I went up to shew it, he
and Mahony went up; the captain said it was a very fine
prospect of the town; he asked for a pint of ale, I drawed it,
and he gave it to Mahony, he drank it: and then the captain
asked my wife, whether he might have a dish of coffee made
to-morrow morning? Sir, said she, it is a thing I don't make
use of in my way; but, if you please, I will get it for you.
Then he told her, he would be there to-morrow morning by about
nine o'clock. Mahony was by then.
VERNON--Did you hear this discourse pass between your wife and
Mr. Goodere?
HOBBS--Yes, I did, and then the captain paid for his pint of
ale, and went away; and the next morning (being Tuesday the
13th of January) he came again to my house before my wife was
up, and I was making the fire (for I keep no servant). I did
not know him again, I thought he was another man; says he,
Landlord, can't you open them windows in the parlour? I told
him, I would, and so I did; he looked out, and I thought that
he had been looking for somebody coming from College prayers.
He asked where my wife was? Says I, she is a-bed: because, said
he, I talked with her about having some coffee for breakfast. I
told him, she should come down presently, but I had much rather
he would go down to the coffee-house, where he would have it in
order. No, says he, I will have it here. My wife came down, he
asked if he might go upstairs where he was before; he went up,
and by and by Mahony and three men more came in; I did not know
Mahony's name; when they came in, the captain was above stairs;
he directed me to make his men eat and drink whatever they
would, and he would pay for it; I brought them bread and
cheese, they eat what they pleased; Mahony went backwards and
forwards, up stairs and down several times; he went out, but
where, or what for, I did not know.
VERNON--Did Mahony, when he went up stairs, go in to Mr.
Goodere?
HOBBS--Yes, several times; Mahony put the coffee, and some
bread and butter, and made the toast, and did everything for
the captain, I thought he had been his footman. When the
captain had breakfasted, and had made the men welcome, he
shifted himself (some porter brought fresh clothes to him). By
and by a man rid along, who, I believe, was sir John Goodere's
man, with pistols before him; I heard somebody say that it was
his man: and soon after the captain had shifted himself, Mahony
went out about a quarter of an hour, and came back sweating,
and went up to the captain; and I looking out of the window saw
the man on horseback, and leading another horse (which I took
to be his master's) and by and by sir John mounted, and rid
down between my house and the church; and I had some glimpse
of him, and heard the captain say, Look well at him, but don't
touch him.
THE RECORDER--This you heard the gentleman above stairs say to
the four men below?
HOBBS--Yes, Sir, he spoke these words to the four who came in.
VERNON--Did sir John and his man appear to have any arms?
HOBBS--Yes, Sir, they had both pistols before them.
VERNON--Those men that were along with Mahony, do you know what
ship they belonged to?
HOBBS--There was a young man, I believe something of an
officer, came to my wife, and asked her, Is the captain of the
man-of-war here? She answered that she did not know; but there
was a gentleman above, and there were six other men besides in
the other room in another company, which I did not know
belonged to the captain, until he ordered six pints of ale for
them. The captain ordered entertainment for ten men.
VERNON--Where were those six men?
HOBBS--In the kitchen; they did not belong to the man-of-war,
nor were not in company with the other four.
VERNON--Now, will you proceed to give an account what followed
upon Mr. Goodere's saying, Look well at him, but don't touch
him.
HOBBS--As soon as sir John went down the hill, this Mahony
stept up to the captain and came down again, and he and the
other three in his company went down the hill, and the captain
followed them; the clothes which the captain pulled off were
left in the room; when the captain was going out at the door
with his sword and cloak, I thought I was pretty safe of my
reckoning, because of his clothes being left. The captain said
at the door, Landlady, I will come back and pay you presently.
VERNON--How long was it before Mr. Goodere returned to your
house?
HOBBS--He came again in about a quarter of an hour: When he
came again, he went upstairs, changed a guinea, he asked what
was to pay? I told him four shillings and one penny half-penny,
and then went away. About an hour and a half after Mahony and
the other came again, sweating, and said they had been a mile
or two out in the country. Mahony asked credit for a tankard of
ale, and said his master would come up on Saturday following,
and then he would pay for it: Well, said I, if he is to come up
on Saturday, I will not stand for a tankard of ale; but if he
don't come, how shall I have my reckoning? Says Mahony, I live
at the Scotch arms in Marsh-street. Well, said I, I will not
deny drawing you a tankard of ale, if you never pay me. Said
he, You had best get the room ready against Saturday, and make
a fire, and just dust it.
VERNON--Pray, when Mr. Goodere went away from your house was he
in the same dress as when he came that day?
HOBBS--No, Sir. When he came there he had a light-coloured
coat, and he looked like a country farmer at his first coming
in; but when he was out, he had a scarlet cloak on, wore a
sword, and had a cane in his hand; a porter brought him the
things.
VERNON--Do you know any thing of what happened on the Sunday
following?
HOBBS--Yes, Sir; the Sunday morning Mahony came to my house,
having trousers, a short jacket and leather cap on, asked for a
quart of ale, this was Sunday: My wife said, Don't draw any
more upon tick. Mahony gave a sixpence and paid for it, and
said, See that the room be clear, the captain will be up in the
afternoon, and then he will be here; And as he was going out of
the house, he said to me, If you fortune to see that gentleman
go up with the black cap before that time, do you send a porter
to me to the Scotch arms. I told him I had no porter, and could
not send. About 3 o'clock in the afternoon when he came again
with a person who had a scalled face, and one or two more, a
man who lodged in the house came and told me, that they wanted
to go up stairs; but I would not let them, because it was in
service-time. They all went into the parlour, and had a quart
of ale, and when that was drunk, Mahony called for another; and
then eight or nine men more came and called for ale, and went
into the parlour, but still kept looking out; and one of them
being a little fellow, I don't know his name, kept slamming the
door together, ready to break the house down. Says I, Don't
break my house down about my ears, don't think you are in
Marsh-street; then the little fellow came up as if he was going
to strike me, as I was coming up out of the cellar with a
dobbin of ale in my hand, for a gentleman going to the college;
I saw this gentleman (pointing to the prisoner Samuel Goodere)
and the deceased walk down the hill, I looked after them, and
so did Mahony; and then all those men rushed out, and followed
them. Mahony paid the reckoning, and went away: I ran in to see
after my tankard for I was more afraid of losing that than the
reckoning. And that is all I do know from the beginning to the
end.
VERNON--How long did he continue at your house on the Sunday?
HOBBS--I believe, Sir, an hour and a half; and there was some
or other of them still looking out and waiting at the door.
THE RECORDER--You say that Mahony desired you that if you saw
the gentleman in the black cap go by, to send a porter; who did
you apprehend that gentleman to be?
HOBBS--The gentleman that rode down the Tuesday.
ONE OF THE JURY--To what place were you to send the porter?
HOBBS--To the Scotch arms in Marsh-street, where Mahony lodged,
if the gentleman in the black cap did go up to Mr. Smith's.
VERNON--I think, you say, you saw Mr. Goodere on the Sunday go
down the hill, after the gentleman in the black cap?
HOBBS--I did, Sir; but nobody at all was with him.
GOODERE--Did you see me at all that day?
HOBBS--Yes, Sir, I saw you go into Mr. Jarrit Smith's; and when
you came down the hill, after the gentleman in the black cap,
you called out to Mahony and his company, and bid them to look
sharp.
GOODERE--Did you see anybody with me that day? I was not at
your house that day.
HOBBS--I did not say you were; but as you was going to Mr.
Jarrit Smith's, I heard one of your men say, There goes our
captain, or else I had not looked out.
MAHONY--I beg leave, my lord, to ask him, who it was that the
captain bid Mahony to look sharp to?
HOBBS--The gentleman with the black cap.
THE RECORDER--Was the gentleman in the black cap, at whose
going by they all rushed out, the same gentleman whom you had
seen before go to Mr. Jarrit Smith's?
HOBBS--Yes, Sir, but Mahony gave half-a-crown for my reckoning,
and as they rushed out so hastily, I was afraid they had taken
away my tankard; for which reason I went to look after it, and
saw no more.
_Thomas Williams, sworn._
VERNON--Mr. Williams, I think you belonged to the _Ruby_ at the
time when this melancholy affair happened?
WILLIAMS--Yes, Sir.
VERNON--What station were you in?
WILLIAMS--I was ordered to walk the quarter-deck.
VERNON--Will you give an account of what you know in relation
to the ill-treatment of sir John Dineley Goodere? Tell all you
know about it.
WILLIAMS--I came up on Sunday the 18th day of January last for
my commander, went to his lodgings, he was not at home. I was
told there that he dined that day at Dr. Middleton's and he was
just gone there. I went to Dr. Middleton's after him, and he
was just gone from thence; I then returned to his lodgings and
found him there; I told him the barge was waiting for his
honour. He asked me if I knew the river, and if I knew the
brick-yard at the lime-kilns? I told him that I knew the
lime-kilns, and at last I recollected that I did remember the
brick-yard he meant. That is well enough, says he. While I was
there, Mahony came up to him, and the captain desired of me to
go down stairs, for he wanted to speak to Mahony in private. I
went down stairs, by and by Mahony came down and went away;
then I went up to captain Goodere again, when he directed me to
get all the hands together, and go down into the barge, and,
says he, let it be landed at the brick-yard. He asked me, if I
knew the White Hart in the College Green? I told him, I did,
and he directed me to take eight men up with me to the White
Hart, and let two remain in the boat for I have a gentleman
coming on board with me. I did as I was ordered; and when I
came to the White Hart, I saw Mahony and some of the
privateer's men with him there in a room; I did not like their
company; I went into the kitchen; I asked the landlord to make
me a pint of toddy; he asked me, whether I would have it hot or
cold; I told him a little warm; he was going about it but
before it was made, Mahony and the privateer's men rushed out
of the house: I seeing that, followed them; they had the
gentleman in possession before I came to them, and were
dragging him along. I asked them what they were at? One of the
privateer's men told me, if I did not hold my tongue he would
throw me over the key into the river, and immediately captain
Goodere came there himself; The privateer's men asked what they
should do with him, and he directed them to take him on board
the barge. I followed them down the butts, the gentleman cried
out Murder, murder! Mr. Stephen Perry, the anchor-smith, came
out of his house, and asked me what was the matter; I told him
I did not know: Mahony said he was a murderer, he had killed a
man on board the man-of-war, and that he had run away; they had
carried him before a magistrate, and he was ordered back to the
man-of-war to be tried by a court-martial.
THE RECORDER--Was the captain within hearing at the time Mahony
said that?
WILLIAMS--He was just behind.
THE RECORDER--Was he within hearing?
WILLIAMS--He was; and when they had brought him into the barge
captain Goodere desired to have the cloak put over sir John to
keep him from the cold, but sir John said he did not want a
cloak, neither would he have it. The privateer's men wanted me
to put them on the other side the water, but I said I would not
without the captain's orders. They asked the captain, and he
directed me to do it, and I put them ashore at the glass-house,
and just as we came over against the hot-wells, there was a
gentleman standing whom sir John knew, to whom sir John cried
out, Sir, do you know Mr. Jarrit Smith? But before he could
speak any more, the cloak was thrown over him to prevent his
crying out, and the captain told me to steer the barge on the
other side, until we got clear of the noise of the people; and
when we were got clear, he directed me to steer the boat in the
middle, as I ought to do. I obeyed his orders.
THE RECORDER--Who threw the cloak over him?
WILLIAMS--The captain. And the captain being as near to sir
John as I am to your lordship, sir John asked the captain what
he was going to do with him? Says the captain, I am going to
carry you on board, to save you from ruin, and from lying
rotting in a gaol.
VERNON--And what reply did sir John make to that?
WILLIAMS--He said, I know better things, I believe you are
going to murder me; you may as well throw me overboard, and
murder me here right, as carry me on board ship and murder me.
No, says the captain, I am not going to do any such thing, but
I would have you make your peace with God. As I steered the
boat, I heard all that passed. We brought sir John on board
between 7 and 8 o'clock, he could hardly go up into the ship,
he being so benumbed with cold; he did go up of his own accord,
with the men's assistance.
VERNON--How was he treated on board the man-of-war?
WILLIAMS--Sir, I don't know how they treated him after he went
on board the ship. I was excused from watching that night so I
went to my hammock; but after I was got out of my first sleep,
I heard some people talking and walking about backwards and
forwards: I was surprised; at last I peeped out of my hammock,
and asked the centinel what was o'clock. He said, between two
and three. And then I saw captain Goodere going down the ladder
from the deck towards the purser's cabin, but for what
intention I know not. I believe he came from his own cabin.
THE RECORDER--Whereabout is the purser's cabin?
WILLIAMS--The purser's cabin is in a place called the Cockpit,
the lower steps of the ladder is just by the door of the
purser's cabin.
THE RECORDER--And it was that ladder you saw the captain go
down, was it?
WILLIAMS--Yes, Sir, it was.
VERNON--Mr. Williams, you have not told us all the particulars
of sir John's treatment between the seizing and carrying him to
the barge.
WILLIAMS--One of the men had hold of one arm, and another the
other, and a third person was behind shoving him along.
VERNON--Where was captain Goodere then?
WILLIAMS--He was just behind him.
VERNON--How near was he to him?
WILLIAMS--Sometimes he was as near to him as I am to you.
THE RECORDER--How many were there in the company, do you think,
in the rope-walk, when they were carrying sir John along?
WILLIAMS--There were five of the privateer's men, and Mahony
made six, and there were nine belonging to the barge; about
sixteen in all.
RECORDER--At what distance were you?
WILLIAMS--At a pretty great distance; I walked just before
them; I saw them take him along in the manner I have said; I
heard sir John cry out murder several times as he went, as they
took him along the rope-walk.
In answer to Goodere, the witness said that he slept on the starboard
side of the gun-room, and that he could see people coming down into the
cockpit, because the gun-room came unusually far out; there was no other
cabin but the purser's in the cockpit. He did not know where the ship
lay, being but a foremast man.
_Samuel Trivett, sworn._
VERNON--Will you give an account to Mr. Recorder and the Jury
of what you know relating to this business?
TRIVETT--On Sunday the 18th of January last, I was at a public
meeting in the rope-walk; I heard a noise of people cried, Damn
ye, stand off, or else we will knock your brains out; I stepped
up, and asked what right they had to carry a man along after
that manner? I followed them: their answer was, it was a
midshipman who had committed murder, and they were taking him
down to the ship to do him justice; other people likewise
followed, enquiring what was the matter the gentleman was
behind, and ordered them to make more haste.
VERNON--Look upon the prisoner at the bar, Mr. Goodere; is that
the gentleman that ordered them to make more haste?
TRIVETT--I believe that is the man, my lord. On the gentleman's
ordering them to make more haste, five or six of them caught
him up in their arms, and carried him along; and as they were
got down about the corner of Mr. Brown's wall, he insisted upon
their making more dispatch, and then they hurried him as far as
captain Osborn's dock. By that time his clothes were ruffled
and shoved up to his arm-pits; they put him down, and settled
his clothes, and then I saw his face, and knew him to be sir
John Dineley: he cried out murder several times, and said, they
were taking him on board to kill him, he believed. As they were
going with him along, he cried out to Mrs. Darby, For God's
sake assist me, they are going to murder me. I told Mrs. Darby
it was sir John Dineley: she said she knew him; the cloak was
then over his face. As they got him further, he called out to a
little girl, to get somebody to assist him, for they were going
to murder him. They pushed him along to Mrs. New's house, and
made a little stop there, and then they brought him to the
water-side, where was a boat; they put out a plank with ledges
nailed across: he was ordered to go on board the boat; they got
him on board, and put him to sit down in the stern-sheet: then
he cried out, For God's sake, gentlemen, if any of you know Mr.
Jarrit Smith in the College-green, tell him my name is sir John
Dineley. One of the men put his cloak and covered him, and
before he could say any more, that gentleman (pointing to the
prisoner Goodere) took his hand and put it on his mouth, and
would not let him speak any further, and ordered the boat to be
pushed off, which was done; and the tide making up strong, the
boat got almost to the other side. I heard that gentleman
(pointing as before) say, Have you not given the rogues of
lawyers money enough already? Do you want to give them more? I
will take care that they shall never have any more of you; now
I'll take care of you.
THE RECORDER--Prisoners, will either of you ask this witness
any questions?
GOODERE--No, I never saw the man before in my life.
_Thomas Charmsbury, sworn._
CHARMSBURY--On Sunday the 18th of January last, between the
hours of four and five in the afternoon, I was on board the
ship called the _Levant_, lying in Mr. Thompson's dock; I heard
a noise coming over the bridge of the dock, and I saw a man in
a scarlet cloak, and a parcel of people, some before and some
behind, guarding of him, and he made a noise. I went towards
them, to see what was the matter, and at Mr. Stephen Perry's
counting-house (they rested) I asked, what was the matter?
They said, he had killed a man on board a man-of-war; that he
had run away; and they had had him before a magistrate, and he
was ordered on board the king's ship to be carried round to
London to take his trial. Mr. Perry (on hearing the noise) came
out and saw him; says Mr. Perry, Gentlemen, do you know what
you are about? I would not be in your coats for a thousand
pounds, for it is 'squire Goodere. They threatened to knock
down any that should come near; a fellow, I take him to be
Mahony, came up to me, and threatened to knock me down several
times. They took and carried him as far as captain James Day's
lofts and warehouse, where he keeps his hemp; and there they
rested him again, and threatened to knock down any that should
come near them. Then said Mahony, Damn ye, here comes the
captain. Immediately I turned about, and saw a gentleman with
his cane poised in one hand, and his sword in the other; he had
a dark shag coat and yellow buttons, whom I take to be that
gentleman the prisoner at the bar. They took up the man in the
scarlet cloak again, and carried him so far as coming out from
the lower College-green into the rope-walk: the prisoner
Goodere came up to them and ordered them to mend their pace;
they took him up again, and carried him as far as Brown's
garden, at the lower end of the rope-walk, as fast as they
could well carry him, where they settled his clothes, and in
the meanwhile the prisoner Goodere came up to them again, and
ordered them to mend their pace. With much difficulty they got
him between the gate and stile, and carried him as far as the
warehouse at the corner of the glass-house, there they rested
and settled his clothes again; then they took him up, and
carried him down to the Lime-kilns, as far as the lower part of
the wall below madam New's; and then brought him down to a
place opposite to the King's-head, and then they put him on
board a boat (I take it the man-of-war's barge) having ten
oars, and they handed him in. After, the prisoner Goodere went
into the boat after him, and set sir John on the
starboard-side, and the prisoner Goodere on the larboard-side;
then sir John cried out, Murder! you gentlemen that are on
shore, pray tell Mr. Jarrit Smith that my name is Dineley, and
before he could say Goodere the gentleman took up the flap of
the cloak, threw it over the face of sir John, and stopped his
mouth; and says he, I will take care of you, that you shall not
spend your estate; and ordered the barge to be put off; and
then he took the gentleman's cloak from his shoulders, and put
it on his own.
THE RECORDER--Who was it that stopped his mouth with his cloak?
CHARMSBURY--That gentleman the prisoner at the bar. The boat
was so full, had so many people in it, that they were obliged
to row but with eight oars: and when they proceeded down the
river, it being about three quarters flood, and the gentleman
continually crying out, they went out of sight, and I saw no
more of them.
_Mrs. Darby_, who lived at the limekilns, saw Sir John forced along
between two men; he was crying out, Murder, murder! for the Lord's sake
save me, save me, for they are going to kill me. She knew Sir John very
well; she had mended his chair for him last summer; she was told that
the gentleman at the bar was the captain of the man-of-war; he was
dressed in a dark drab-coloured coat, and his waistcoat was trimmed with
gold. She heard Sir John cry out something as he was being hurried into
the boat, but she could not hear what.
_William Dupree_ was drinking at the King's Head with a friend, and a
young woman who was reading at the window said she heard a great noise,
on which they went out, and saw a company of men forcing a gentleman
along, the prisoner Goodere coming behind them. They said that he had
murdered a man, and that they were taking him on board for justice. They
put him on the yawl, while Captain Goodere stood by. He cried out, 'For
God's sake! go and acquaint Mr. Jarrit Smith, for I am undone, they will
murder me.' The witness went back to the King's Head, where the people
advised him to go to Mr. Jarrit Smith and inform him of it, which he
did. When Sir John cried out he saw Goodere put his hand on his mouth.
_Theodore Court, Master of the Ship, sworn._
VERNON--Will you tell Mr. Recorder and the jury what you know
concerning the death of sir John Dineley Goodere?
T. COURT--On the 18th of January last, being Sunday, the barge
went up to fetch captain Goodere from Bristol, and about seven
of the clock in the evening he came on board, and when he came
into the gangway, says he, How do you all do, gentlemen?
Excuse me, gentlemen, from going the right way to-night, for I
have brought an old mad fellow on board and I must take care of
him. I saw a gentleman with a black cap coming up the ship's
side, and his groans shocked me, so that I could not help him;
he looked much surprised as a person used ill; as soon as he
was on board he was taken into custody, and carried by the
captain's orders down to the cockpit, and put into the purser's
cabin, and a centinel ordered upon him; and I saw him no more
at that time. Next morning I was told that the captain's
brother was murdered, and that the captain had given Charles
White and Mahony leave to go on shore.
THE RECORDER--By whose direction was he put into the purser's
cabin?
T. COURT--The captain himself went down and saw them put him
in.
VERNON--Whereabout in the ship is the purser's cabin?
T. COURT--In the cock-pit.
VERNON--Was it a place where gentlemen who came on board
commonly lay?
T. COURT--No, nobody had laid in it for a considerable time.
The next morning the cooper met me, and said, Here is fine
doings to-night, Mr. Court! Why, what is the matter? said I.
Why, said he, about three o'clock this morning they went down
and murdered sir John. The ship was in an uproar; the Cooper
said, if Mr. Perry (the lieutenant) did not secure the captain,
he would write to the board; we had several consultations in
the ship about it. The captain sent for me to breakfast with
him: I accepted his invitation; I can't say but he behaved with
a very good name to all the people on board. About ten o'clock
Mr. Perry, myself, and the other officers, with the cooper,
consulted about securing the captain. Mr. Perry cautioned us
not to be too hot; for, said he, if we secure the captain
before we know sir John is dead, I shall be broke, and you too.
We send for the carpenter, and desired him to go down and open
the cabin-door, the centinel who stood there having said it was
lock'd; the carpenter went down, opened the cabin-door, and
came up, and said sir John was murdered; and that he lay on his
left side, with his leg up crooked. I told them, gentlemen,
there is nothing to be done before the coroner comes; and
therefore we must not touch him: whereupon the door was ordered
to be fastened up; we then consulted how to take the captain,
and a method was agreed on for that purpose. And as soon as the
captain was taken, he declared he was innocent of it, that he
knew not that his brother was murdered. When the coroner came,
I saw the deceased, and my heart ached for him.
THE RECORDER--Who was it put the centinel upon sir John?
T. COURT--The captain ordered it to be done.
VERNON--Is it usual to place a centinel at the purser's
cabin-door?
T. COURT--No, it is not; unless there be somebody there under
confinement.
VERNON--Is there any other cabin near the purser's?
T. COURT--Yes, there is the slop-room just by; there the cooper
and his wife lay that night: there is just a little partition
of about half-inch deal, parting the slop-room from the place
where sir John lay confined.
VERNON--Pray, will you tell us whether any and what discourse
passed between Mr. Goodere and you, about sailing, and when it
was?
T. COURT--Sir, in the morning he asked me, Will the wind serve
to sail? He said, he had another pressing letter from the lords
of the admiralty to sail as soon as possible. I told him that
the wind was west-south-west, and that we could not go out to
sea; for no pilot would take charge of the ship I believed. And
as this is a harbour where a pilot is allowed, I don't pass for
this place; otherwise I must have observed his orders.
VERNON--Did he acquaint you how far or to what part, he would
have you sail?
T. COURT--Yes, he said, if he got no further than the Holmes,
he did not care; and asked me if it was safe riding there. I
told him it was not; for it was foul ground for such a ship as
ours.
THE RECORDER--Mr. Goodere, will you ask this witness any
questions?
GOODERE--What cabins are there in the cock-pit?
T. COURT--I know no cabins there but the purser's cabin and the
slop-room, etc.
VERNON--Call Mr. Williams.
_William Williams_ produced a watch which he had found in a vault in
Back Street. Culliford, who kept the Brockware Boat on the Back, had
reported at the Council House, when he was examined there, that a watch
and some money had been left at his house; but his wife, when asked for
them, denied the watch, but afterwards admitted that she had thrown it
into the vault where the witness afterwards found it.
_T. Court_ said that the captain had had a watch like the one produced.
In answer to Goodere, he said that there were in the cockpit the
steward's room, the purser's cabin, and the slop-room. The ship had been
moored on Thursday the 15th of January. When Sir John was murdered she
lay in the King Road; the witness then described the position of the
ship with greater detail.
_Vernon_ interposed to state that the ship was in the King Road, which
was well known to be within the franchise of the city: the sheriffs of
the city continually executed writs there; and such a serious matter
ought not to be decided on a side wind.
_Duncan Buchanan_, one of the crew of the _Ruby_, was ordered to go to
the White Hart on Tuesday the 13th of January, and there were Mahony and
the privateer's men drinking hot flip. He saw a gentleman come out of
Mr. Smith's; he was mounted, and had pistols before him; he was followed
by a servant, also armed. Some of the men ran out, and Goodere followed
them and ordered them to follow the gentleman. On the 18th, the barge
came alongside the ship, about seven in the evening, with the gentleman
in it. The witness stood in the gangway to receive him.
When he came up, I heard him make a moan, and the captain said,
I have brought a madman on board, bring him along, I will bring
him to his senses by-and-by. I saw them take him along the
gangway. You must not mind what he says, said the captain; and
he was ordered down to the purser's cabin: I was ordered
centinel there. About twelve o'clock the captain sent for me to
come up to him, and I laid down my sword and went up, and
Mahony was there with him; and there was a bottle of rum and a
glass before them: the captain asked me to drink a dram, I
thanked him and drank. He asked me how his brother was? I told
him he groaned a little; says the captain, I know the reason of
that, he is wet, and I am coming down by-and-by to shift him
with dry stockings: so I left the captain and Mahony together.
Some time after the captain came down to me as I was at my post
at the purser's cabin; he asked if his brother made a noise; I
told him no; upon which the captain listened a little time at
the door, and then said, Give me the sword, and do you walk
upon deck, for I want to speak to my brother in private. Soon
after this Mahony went down, and very soon after Mahony was
down, I heard a great struggling in the cabin, and the
gentleman cry out Murder! I then thought the gentleman had been
in one of his mad fits; but now I suppose they were then
strangling him. As I was walking to-and-fro in the gun-room, I
looked down, and saw the captain take the candle out of the
lanthorn, which was hanging up there, and he gave the candle
into the cabin.
THE RECORDER--Where was Mr. Goodere when you heard the cry of
murder?
BUCHANAN--In the cock-pit by the purser's cabin-door, with the
sword in his hand.
THE RECORDER--What time of the night was this?
BUCHANAN--Between two and three o'clock; I lighted a candle at
the lanthorn in the gun-room, and was going down to the captain
with it, as supposing him to be without light; and as I was
going down with it, the captain held up his sword, waved it,
and said, Go back, and stay where you are.
THE RECORDER--You said that sir John Dineley cried out Murder!
Was that before you offered the candle to the captain?
BUCHANAN--Yes, Sir; it was before.
THE RECORDER--How long?
BUCHANAN--About a quarter of an hour.
THE RECORDER--How long did the cry of murder continue?
BUCHANAN--About three or four minutes; soon after the captain
had ordered me to keep back, he called for a candle, and I
carried one down, and he gave me the sword, and bid me stand
upon my post; and said he, if my brother makes any more noise,
let him alone and send for me; and he locked the purser's
cabin-door, and took the key away with him; and in the morning
the doctor's mate, the cooper, and I consulted together about
it; and I was willing to know, if sir John was dead or not: and
when we peeped into the cabin, we saw him lying in a very odd
sort of posture, with his hat over his face, and one of his
legs lay crooked; upon which we concluded he was dead.
THE RECORDER--How long were you off your post from first to
last?
BUCHANAN--I can't tell exactly.
THE RECORDER--Recollect as well as you can.
BUCHANAN--About three quarters of an hour.
THE RECORDER--And could you see who was at the purser's
cabin-door all that time?
BUCHANAN--Yes, Sir; I saw the captain stand at the foot of the
ladder at the door, with a drawn sword, from the time I went up
to the time I came down again; he locked the door, and carried
the key away with him.
VERNON--Pray, were there any bolts on the purser's cabin-door?
BUCHANAN--Yes, there were bolts on the door; they were put on
soon after sir John came on board: sir John was in that cabin
when they were put on.
VERNON--You say you heard a noise and outcry of murder; how far
were you from the cabin-door when you heard that cry of murder?
BUCHANAN--I was walking to-and-fro the gun-room.
VERNON--How far is that from the purser's cabin-door?
BUCHANAN--As far as I am from you.
VERNON--Whom did you see go into the purser's cabin to sir
John?
BUCHANAN--I saw Mahony go in there.
VERNON--Did you see any other person go in besides Mahony?
BUCHANAN--No, I did not; I saw Mahony go in just before the cry
of murder, but no other person.
VERNON--Do you know any thing about securing the captain?
BUCHANAN--Yes, I will tell you what happened then. We went and
secured him. As soon as he was laid hold of, he cried out, Hey!
hey! what have I done? We told him his brother was murdered,
and that he had some concern in it. He said, What if the
villains have murdered my brother, can I help it? I know
nothing of it.
GOODERE--Did you see me in the cabin at all?
BUCHANAN--No, Sir, I don't say you were in the cabin.
THE RECORDER--Mr. Goodere, the witness does not say he saw you
in the cabin, but at the door, and with a sword in your hand,
and that you handed in a light after the cry of murder was
over.
GOODERE--I could not have been in the cabin without Buchanan's
seeing me go in, because he stood at the bulkhead of the
gun-room.
THE RECORDER--Mahony, will you ask this witness any questions?
MAHONY--Are you certain that I was in the cabin when you heard
the groans?
BUCHANAN--I am positive you were there in the purser's cabin
when I heard the murder cried out.
_Daniel Weller, sworn._
VERNON--I think you are the carpenter belonging to the _Ruby_
man-of-war?
WELLER--Yes, Sir, I am.
VERNON--Give an account to Mr. Recorder and the jury of what
you know relating to this business.
WELLER--The 18th of January last, about seven o'clock in the
evening, the captain came on board in the barge; as I attended
him, I observed he seemed in a pleasant humour, he came upon
the deck at once, and said he had brought a poor crazy man on
board, who had been the ruin of himself and family, and that he
had now brought him on board to take care of him: he took him
down to the cock-pit, and having been there a little while, one
of my people came and asked for some bolts; I asked, What for?
He told me it was to put on the outside of the purser's
cabin-door, to bolt the crazy gentleman in. I gave him a bolt;
after he had nailed it on, he came and wanted another: I had
another, gave it to him, and went down to see the bolts put on.
Sir John cried out, What are you doing, nailing the door up? I
answered, No. I ordered the door to be opened, to turn the
points of the nails. The door being opened, sir John asked
whether the carpenter was there? I told him I was the man. The
centinel told me no-body must go in there; however, I went in,
while they turned the points of the nails. Sir John bid me sit
down, and asked me, What does my brother mean by bringing me on
board in this manner, to murder me? No, Sir, says I, I hope
not, but to take care of you. He asked me, if his brother told
me that he was mad? I saw no more of him till next morning.
VERNON--And what did you see then?
WELLER--Next morning the lieutenant sent me down to see if sir
John was dead. I went down and asked the centinel for the key;
he told me the captain had been there in the night, and had
taken away the key in his pocket. I broke open the cabin-door,
and sir John was lying on one side dead, with his right leg
half up bent, his hat was over his face, with blood bespattered
about his mouth and nose. I went directly up, and told the
lieutenant of it.
THE RECORDER--By whose orders did you put the bolts on the
door?
WELLER--One of my people came to me for bolts, and told me he
was ordered by the captain to put the bolts on; and none of
them ever came for any thing to be done, without an order of an
officer.
_Edward Jones, sworn._
VERNON--Mr. Jones, I think you are the cooper of the ship
_Ruby_?
JONES--Yes, Sir.
VERNON--Were you on board upon Sunday the 18th of January last?
JONES--Yes, Sir, I was.
VERNON--In what cabin did you lie that night?
JONES--I had no cabin, but I made bold to lie in the slop-room
that night, having my wife on board.
VERNON--Pray what is that you call the slop-room?
JONES--It is like a cabin.
VERNON--How near is the slop-room to the purser's cabin?
JONES--Nothing but a thin deal-partition parts it from the
purser's cabin.
VERNON--Will you relate to Mr. Recorder and the jury what you
know about the murder of Mr. Goodere's brother; tell the whole
you know concerning it.
JONES--About Wednesday or Thursday before this happened, the
captain said to me, Cooper, get this purser's cabin cleaned
out, for he said he expected a gentleman shortly to come on
board. I cleaned it out; and on Sunday evening the gentleman
came on board, when the people on deck cried, Cooper, shew a
light. I brought a light, saw the captain going down the
cock-pit ladder, the gentleman was hauled down: he complained
of a pain in his thigh by their hauling him on board. The
captain asked him, if he would have a dram? He said no; for he
had drank nothing but water for two years. The captain ordered
Mahony a dram; he drank it; he also ordered one Jack Lee to put
two bolts on the purser's cabin-door. The gentleman walked
to-and-fro the purser's cabin while they were nailing the bolts
on. He wanted to speak with one of the officers. The carpenter
told him he was the carpenter. Says the gentleman, Do you
understand what my brother Sam is going to do with me? And
said, His brother had brought him on board to murder him that
night. The carpenter said, He hoped not, but what was done was
for his good. The captain said, They must not mind what his
brother said, for he had been mad for a twelvemonth past. And
the captain went up again, and went into the doctor's room. I
went to bed about eight o'clock. Some time about eleven o'clock
at night I heard the gentleman knock, and said, He wanted to
ease himself; to which the centinel gave no manner of heed. Is
it not a shame, said he, to keep a gentleman in, after this
manner? At last, some other person spoke to the centinel, and
says, Why don't you go up and acquaint the captain of it, that
the gentleman may ease himself? Soon after Mahony comes down
with a bucket, for the gentleman to ease himself. Mahony sat
down in the cabin, and he and the gentleman had a great deal of
discourse together; the gentleman said he had been at the
East-Indies, and told what he had got for his merit; and Mahony
said, some by good friends. I heard the gentleman, after Mahony
was gone, pray to God to be his comforter under his affliction.
He said to himself, he knew that he was going to be murdered,
and prayed that it might come to light by one means or
another. I took no notice of it, because I thought him a crazy
man. I slept a little, and about two or three o'clock my wife
waked me. She said, Don't you hear the noise that is made by
the gentleman? I believe they are killing him. I then heard him
kick, and cry out, Here are twenty guineas, take it; don't
murder me; Must I die! must I die! O my life! and gave several
kecks with his throat, and then he was still. I got up in my
bed upon my knees: I saw a light glimmering in at the crack,
and saw that same man, Mahony, with a candle in his hand. The
gentleman was lying on one side. Charles White was there, and
he put out his hand to pull the gentleman upright. I heard
Mahony cry out, Damn ye, let us get his watch out; but White
said he could not get at it. I could not see his pockets. White
laid hold of him, went to tumbling him up to get out his money,
unbuttoned his breeches to get out his watch; I saw him lay
hold of the chain; White gave Mahony the watch, who put it in
his pocket; and White put his hand into one of the gentleman's
pockets, and cursed that there was nothing but silver: but he
put his hand in the other pocket, and there he found gold.
White was going to give Mahony the gold: damn ye, says Mahony,
keep it till by-and-by.
THE RECORDER--In what posture did sir John lie at that time?
JONES--He lay in a very uneasy manner, with one leg up; and
when they moved him, he still remained so, which gave me a
suspicion that he was dead. White put his hand in another
pocket, took out nothing but a piece of paper, was going to
read it. Damn ye, said Mahony, don't stand to read it. I saw a
person's hand on the throat of this gentleman, and heard the
person say, 'Tis done, and well done.
THE RECORDER--Was that a third person's hand, or the hand of
Mahony or White?
JONES--I cannot say whether it was a third person's hand or
not. I saw but two persons in the cabin, I did not see the
person, for it was done in a moment. I can't swear I saw any
more than two persons in the cabin.
THE RECORDER--Did you take notice of the hand that was laid on
sir John's throat?
JONES--I did.
THE RECORDER--Did it appear to you like the hand of a common
sailor?
JONES--No; it seemed whiter.
VERNON--You have seen two hands held up at the bar. I would ask
you to which of them it was most like in colour?
JONES--I have often seen Mahony's and White's hands, and I
thought the hand was whiter than either of theirs; and I think
it was neither of their hands by the colour of it.
THE RECORDER--Was sir John on the floor, or on the bed?
JONES--On the bed; but there was no sheets: it was a
flock-bed, and nobody had lain there a great while.
VERNON--How long did the cries and noise which you heard
continue?
JONES--Not a great while: he cried like a person going out of
the world, very low. At my hearing it, I would have got out in
the mean time, but my wife desired me not to go, for she was
afraid there was somebody at the door that would kill me.
VERNON--What more do you know concerning this matter, or of
Mahony and White's being afterwards put on shore?
JONES--I heard some talking that the yaul was to go to shore
about four of the clock in the morning, and some of us were
called up, and I importuned my wife to let me go out. I called,
and asked who is centinel? Duncan Buchanan answered, It is I.
Oh, says I, is it you? I then thought myself safe. I jumpt out
in my shirt, went to him; says I, There have been a devilish
noise to-night in the cabin, Duncan, do you know any thing of
the matter? They have certainly killed the gentleman, what
shall us do? I went to the cabin-door where the doctor's mate
lodged, asked him if he had heard any thing to-night? I heard a
great noise, said he. I believe, said I, they have killed that
gentleman. He said, he believed so too. I drawed aside the
scuttle that looked into the purser's cabin from the steward's
room, and cried, Sir, if you are alive, speak. He did not
speak. I took a long stick, and endeavoured to move him, but
found he was dead. I told the doctor's mate that I thought he
was the proper person to relate the matter to the officer, but
he did not care to do it then. If you will not, I will, said I.
I went up to the lieutenant and desired him to come out of his
cabin to me. What is the matter, said he? I told him I believed
there had been murder committed in the cock-pit, upon the
gentleman who was brought on board last night. Oh! don't say
so, says the lieutenant. In that interim, whilst we were
talking about it, Mr. Marsh the midshipman came, and said, that
there was an order to carry White and Mahony on shore. I then
swore they should not go on shore, for there was murder
committed. The lieutenant said, Pray be easy, it can't be so; I
don't believe the captain would do any such thing. That
gentleman there, Mr. Marsh, went to ask the captain if Mahony
and White must be put on shore? And Mr. Marsh returned again,
and said, that the captain said they should. I then said, it is
certainly true that the gentleman is murdered between them. I
did not see Mahony and White that morning, because they were
put on shore. I told the lieutenant, that if he would not take
care of the matter, I would write up to the Admiralty, and to
the mayor of Bristol. The lieutenant wanted the captain to
drink a glass of wine: the captain would not come out of his
cabin; then the lieutenant went in first; I followed him. I
told the captain that my chest had been broke open, and I
desired justice might be done. Then I seized him, and several
others came to my assistance.
THE RECORDER--Mr. Goodere, do you ask Mr. Jones any questions?
GOODERE--Do you know whether the midshipman was sent away on
the king's business, or else only to put those two men on
shore?
JONES--I know not, you were the captain of the ship.
THE RECORDER--Mahony, will you ask this witness any
questions?
MAHONY--Did you see me lay hands on the gentleman?
JONES--Yes, I did, as I have already related.
_Margaret Jones, sworn._
VERNON--Mrs. Jones, pray acquaint Mr. Recorder and the jury
what you know about the murder of sir John Dineley Goodere (the
gentleman ordered by Mr. Goodere into the purser's cabin).
MRS. JONES--About seven o'clock in the evening, the 18th of
last January, the captain (having been on shore) came on board,
and came down into the cock-pit, and asked if the cabin was
clean? My husband answered, yes. On which the captain gave
orders to bring down the gentleman; and the captain said to the
doctor, Doctor, I have got an old mad fellow here, you must
doctor him up as well as you can. They brought the gentleman
into the cabin, the captain asked him how he did now? The
gentleman complained that he had a great pain in his thigh, he
was hurted by the men's hauling him as they had done. The
captain asked him if he would drink a dram of rum? He answered,
No; for he said he had drank nothing but water for two years
past. The captain gave a dram to several persons there; and he
gave orders for some sheets to be brought; and he said to
Mahony, As his clothes are wet, do you pull them off. And the
gentleman said to Mahony, Don't strip me, fellow, until I am
dead. The gentleman said, Brother Sam, what do you intend to do
with me? The captain told him that he brought him there to save
him from rotting in a gaol. About ten o'clock Mahony was left
there; the gentleman desired him to go; but Mahony said, I have
orders to abide here, to take care of you. The gentleman said
to Mahony, I can abide by myself. Before the captain went away,
he bid Mahony to see if his brother had any knife about him.
The gentleman gave up his knife to Mahony, desired him to take
care of it, for it was his son's knife. The gentleman asked
about the knife several times in the night. About twelve
o'clock I went to sleep; about two o'clock I wakened again: I
heard the gentleman talk to Mahony, but Mahony advised the
gentleman to go to sleep. He said, I cannot sleep. They talked
together a great while. Mahony said, I am to go on shore in the
morning, and if you have any letters to send to Bristol, I will
carry them for you. I heard somebody say to the gentleman, You
must lie still, and not speak a word for your life. Some
minutes after I heard a great struggling; who it was, I don't
know. The gentleman cried out, Murder; help for God's sake! and
made several kecks in his throat, as though somebody was
stifling him. I shook my husband, told him that somebody was
stifling the gentleman. I heard two people in the cabin
whispering; I don't know who they were. The gentleman cried out
murder again, Help for God's sake! He said, I have twenty
guineas in my pocket, here take it; must I die! Oh, my life!
And just about that time, before he was dead, somebody from the
outside offered to come into the cabin, but I heard one of the
persons on the inside say, Keep out, you negro; and then a
great noise was made; I thought the cabin would have been beat
down. Some few minutes after the gentleman had done struggling,
a candle was brought: I soon got up, and looked through the
crevice: I saw a man, who I believe to be White, take the
gentleman by the coat, and pulled him upright. I saw Mahony
with a candle in his hand; I observed the other to put his hand
in the gentleman's pocket. One of them said, Damn ye, pull out
his watch. Then I saw the person take hold of the watch-string
and pull it out, and he said to the other, Here 'tis, take it,
and put it into thy pocket. Then one of them put his hand in
another pocket, and took it out, said, Here's nothing but
silver; and then he searched another pocket, and said, Here it
is; and pulled out a green purse: soon after that, the door was
unbolted, I heard a person say, Where shall I run? who I
believe was Mahony; and the other, Charles White, said, Follow
me, boy. And they went to go upon deck through the hatch-hole,
which is an uncommon way; and that is all I know.
THE RECORDER--Mr. Goodere and Mahony, do either of you ask this
witness any questions?
GOODERE--No.
MAHONY--No.
_James Dudgeon, sworn._
VERNON--Mr. Dudgeon, I think you are the surgeon's mate
belonging to the _Ruby_?
DUDGEON--Yes, Sir.
VERNON--Give Mr. Recorder and the jury an account what you know
relating to this matter.
DUDGEON--I am very sorry that I should come on this occasion
against captain Goodere, because he ever behaved towards me in
a genteel manner. The week before this happened, I was told by
one of the officers, that the captain was going to bring his
brother on board; and on Sunday the 18th of January, about the
dusk of the evening, the barge came down to the ship. I was at
that time walking the quarter-deck; some of our people seeing
the barge a-coming they said, Our captain is coming on board
with his brother sure enough: but instead of coming up the
quarter-deck, the captain went down upon the main-deck, and I
still kept walking on the quarter-deck, expecting to see the
gentleman when he went into the great cabin, but I afterwards
found that he was ordered down to the cock-pit. Soon after, I
went down there myself; and the captain being there, said,
Doctor, I have brought a madman to you, I don't know what we
shall do with him, but we must make the best of him that we
can; and Mahony came down likewise. The captain sent his
steward for a bottle of rum, Mahony had a dram of it. The
captain asked sir John if he would have one? Sir John replied,
No; for, said he, I have not drank any thing of that nature for
two years past; he groaned several times. There was then one
Cole at the foot of the ladder, to whom also the captain gave a
dram; then there was a centinel put upon the cabin-door; but
Cole asked the captain if he might go in, and the captain said
he might. The old gentleman made a noise as the captain went up
the ladder; the captain told him, We have now brought you on
board, and will take care you shall want for nothing. After the
captain was gone, Cole wanted to go in, but the centinel would
not let him; telling him that his orders were to let none in
but Mahony: however, Cole went up and got leave of the captain
to go in, and he did go in. Soon after this the captain came
down again to the cock-pit, and came into my place, and sat
down; and after talking of things promiscuously, he said, he
believed it would be proper for me to go and feel his brother's
pulse; or else, Doctor, he said, do you chuse to leave it alone
till to-morrow morning? I made answer, that to-morrow morning
might be the best time; because the gentleman may be much
confused by being brought down on the water. Come, said he, let
us go in now; for I believe it will be as well. If you please,
Sir, said I, I will; so the centinel opened the door, and we
both went in. Immediately after, the captain went out again,
and forthwith the door was shut upon me: which very much
surprised me, to think that the captain should leave me with a
madman, and I observed the captain to peep through; I then
asked the gentleman what he mostly complained of? and felt his
pulse. He then made some groans, and told me, that he had got a
great cold last week at Bath, and that he felt a severe pain in
his head. I was going to ask him some more questions, but the
captain called me, and said, Don't ask him any more questions,
but only feel his pulse. Then the centinel opened the door, and
I came out, and the captain and I went into my place again.
Well, doctor, said he, how do you find his pulse? Why, Sir,
said I, his pulses are very regular. Why, said he, I believe he
was pretty much hurried upon the water. Then the captain went
up the ladder, and a little while after he came down again;
there were two midshipmen with me in my place, and when the
captain came in, they went to go out, but he desired one of
them to stay, for he had something to say to him, because he
was to go up for letters in the morning; so we sat down, and
talked of various things; but I informed the captain that the
old gentleman have had hard lodging to-night. Why, said he, I
would put another bed in there, and have given him clean
sheets, but he would not hear anything of this kind. Then said
he to me, Doctor, I believe it will not be amiss to take an
inventory of everything he has about him, for fear it should be
reported that he is robbed. I replied, Sir, it may not be
amiss. By-and-by, Cole came tumbling down the ladder, the
midshipman opened the curtain to see who it was; Captain, said
he, that is Cole, and I then told that Cole had been drunk a
great part of that day. Soon after that the captain opens the
curtain, and sees Mahony stand by the centry. Mahony, said he,
I thought you had been about the thing which I sent you to do;
which I take to be getting the money out of the gentleman's
pocket. No, Sir, said he, I chuse to do it after he is asleep.
Very well, said the captain. Then the captain spoke to the
midshipman, and said, Mr. Marsh, You are to go up for letters
to-morrow, and if anyone takes notice of what was done to-day,
you may tell the people that it is my brother, and he is very
much disordered in his brains, and I have got him on board in
hopes of getting relief for him. Sometimes, Doctor, says he, he
can talk as well as you or I; but at other times, he is very
much out of order. About eight o'clock I was for going to bed,
but did not till an hour and a half after; and about that time
sir John was making a great noise, and asking who is without
the door, what must I do my affairs in the cabin? What a shame
is it? Will not you let me have anything to do it in? but
nobody made any reply. Upon which I said to the centinel, why
don't you answer the gentleman? Are not you ashamed of it? Upon
which, I suppose, one went up to the captain and he came down,
and said, he was sorry that the gentleman should make such a
disturbance; but he hoped, that the first night would be the
worst: upon which the captain went up, and Mahony went in; and
I heard the gentleman and him talking together, and he asked
Mahony, what his brother was going to do with him? What, says
he, does he say I am mad? Formerly I used to be so, but now I
have not tasted any thing stronger than water these two years.
But, said he, to be sure these fellows are not sailors who
attacked me this day; they are not sailors, for, if so, they
are sadly degenerated from what sailors were formerly, for I
myself have been at sea, and might have been a commander. About
half an hour after ten, I fell asleep, but was very uneasy.
About twelve the centinel was sent for to go up to the captain,
but soon came down again; and about half an hour after two I
awaked, hearing some stir in the cock-pit; and I heard Mahony's
voice in the cabin, saying, Lie still and sleep, Sir. In a
short time after that I heard a struggle, and sir John cried
out, Here is 20 guineas for you, take it; must I die? And it
seemed to me, by his speaking, that they were stifling his
mouth. Upon which the person who stood centry upon the cabin
turned the key, whereupon Mahony cried out in a terrible
pucker, Damn ye, keep the door fast. Upon which I spake, and
said, What is the matter? what a noise is that? And the person
who stood centinel made answer, Nothing at all, nothing at all;
so I lay still a while, and all was pretty quiet. A little time
after that, Mahony called for a light, and the cabin-door was
opened, and a light handed in; the cock-pit was then in
darkness, so all was quiet again for some time. Soon after that
the cabin-door was opened again, and I heard as if two or three
people were coming out of the cabin, and heard Mahony say,
which way shall I go? And somebody made answer, you may go
through the hatch-hole. He repeated the question, which way
shall I go? and the other answered, by the ship-side. I then
thought somebody had been murdering sir John sure enough, and
they are carrying off his body that way; at the same time a
person stept up the cock-pit ladder, and I heard the captain's
voice, and he said, Centry, if he makes any more noise, let me
know it; but I thought within myself, that he was past that.
After this was past, all was pretty quiet, and the centinel
kept walking without my room: I was cautious of speaking to
him, not knowing who he was; but soon after, one of the
captain's servants came down to the store-room for liquor, and
he asked the centry whether he had made any noise lately? To
which he replied, You may tell the captain that the gentleman
hath been at the lock. About half an hour after, the person who
was upon the watch came to me, and asked, if I had any commands
on shore, for the boat was going up? I told him, No; but
perceiving by his voice who it was, I called him to come to me
in the dark, and I whispered, and said to him, Mr. Heathorne,
here hath been a hellish cabal to-night, I believe they have
murdered the gentleman; doth Mahony go on shore? He answered,
that he did; then, said I, the thing is done. I then asked who
was the centry without my door? and he told me; whereupon I
called the centry to me, and asked him, what noise and cabal is
this that hath been here to-night? He said, He did not know;
but the captain, said he, hath been down several times
to-night, and that he had taken the sword from him. Just after
this, in came Edward Jones, the cooper, and his wife shaking
and trembling; and said, White and Mahony had murdered the
gentleman sure enough. I told them, I did believe they were
both going on shore; and I would, said I, have you tell the
lieutenant what you saw of the matter, and let him know that I
am of the same opinion with you: but do you first go into the
steward's room, and draw the scuttle, and then you'll see
whether he is dead, or no. Upon which they went and drawed the
scuttle, and a cat fled in their face, and they found the
gentleman lay in the same posture as White and Mahony left
him. I then bid them go and tell the lieutenant the matter,
that those fellows might be prevented from going ashore; but
yet, said I, we can't stop them neither, seeing they have the
captain's orders. Then went Jones up forthwith, and I believe,
told the lieutenant; and I also stept up to him just after, and
told him, that I believed sir John was actually murdered; for,
said I, there have been a terrible noise in the cock-pit
to-night, and the captain himself was there this morning when
'twas almost three o'clock, and the men that were with him are
going on shore. The lieutenant answered, that he could not stop
these men from going ashore, because the captain hath given
them leave; so, said he, we must let it alone till morning, to
see whether the gentleman is dead, or no. About eight o'clock
in the morning I went to him again; but he told me it was best
to defer it till we did see whether the captain sends down to
him, or not. It is, said he, no way proper for us to think of
seizing the captain, till we see that the gentleman is actually
dead, and have reason to think he is murdered. When the
captain's breakfast was ready, he sent for the lieutenant and
me to come and breakfast with him: accordingly we did; and soon
after there was a shore-boat came towards us, and then Mr.
Chamberlayn came on board, and went to the lieutenant's cabin;
and the lieutenant told that gentleman, that they were then
going to seize the captain, for it was believed that he had
been accessary to the murder of his brother. Immediately a
message was brought by one of the men, that sir John was dead:
upon which the captain was forthwith seized by eight or ten
men.
VERNON--How far was your cabin from the purser's?
DUDGEON--I can't say certainly, but believe about three yards.
VERNON--Did you view the body of the deceased whilst he lay
dead in the purser's cabin?
DUDGEON--I did.
VERNON--And did you find any visible marks of violence upon
him?
DUDGEON--Sir, I saw no rope, but he had a neck-cloth about his
neck, and there were some marks in his neck, which looked like
the scratching of nails; and I believe that he was strangled,
the blood came out of his nose and mouth.
_William Macguinis_ was in his hammock when Sir John was brought aboard,
but was called up at twelve o'clock to stand sentinel in the gun-room.
I had not been long on my post before I saw the captain come
down; and soon after I saw Mahony, that man there (pointing at
the prisoner Mahony), also come down. I stopt him, and asked
him where he was going? Damn your blood, you son of a bitch,
what is that to you? How busy you make yourself. And when he
came to the bottom of the cock-pit ladder I heard him say to
another man, Come here, this is the way. But who it was he
spake to, I know not. This was a little after two o'clock. The
captain espied me, he made towards me, and waved his naked
cutlass, and said, Stand back! stand back!
The captain was down in the cockpit then. Buchanan had been sentinel in
the cockpit, but had been released by the captain. The witness saw
Mahony go into the purser's cabin, and afterwards saw the captain and
Mahony come up again from the cockpit; it was then about three o'clock.
_Walker_ found a watch in the necessary house in the Brockware Boat, a
public-house on the Back, kept by Culliford. He searched for it by the
order of the justices; when he found it, the watch was in one place, and
the case in another, about a yard off.
_Sarah Culliford_, of the Brockware Boat, received the watch from
Mahony. She had it in her possession about two hours before and two
hours after he was taken up.
This young man (meaning the prisoner Mahony) was drinking in my
house, he pulled out the watch, delivered it to me, and desired
me to keep it for him until he did call for it; some time after
I had business to go out, I went into town, and had the watch
in my pocket; when I came back, my children told me that the
constable had been there to search the house for it, which much
surprised me; I went and threw the watch into the necessary
house for fear I should come into trouble.
JOHN FUSSELL--I had this handkerchief from Mahony on the 19th
of January last, the night when we took him, I found it on his
neck; when he was seized he took it off; I took it out of his
hand, it was bloody then as it is now, I put it into my pocket.
_John Mitchel_, the chief clerk to the Town Clerk, produced the
examination of Matthew Mahony, taken before the Mayor, voluntarily
signed by Mahony in the Mayor's presence, and signed by the Mayor.
_Clerk reads the Examination in these words:_
City and county of Bristol, to wit. The voluntary Examination
and Confession of Matthew Mahony, a native of Ireland, aged
about 21 years. This Examinant confesseth and saith, That about
sixteen or seventeen days ago, and several times since, he was
desired by Mr. Goodere, captain of the _Ruby_ man-of-war, now
lying at King-road, in the county of the city of Bristol, to
seize his, the captain's, brother, sir John Dineley Goodere,
bart., and bring him on board the said man-of-war; and that on
Tuesday last, this examinant, and the crew belonging to the
man-of-war's barge, and Edward Mac-Daniel, John Mac-Graree, and
William Hammon, privateer's men, were placed by the said
captain at the White-Hart alehouse, opposite St. Augustine's
Church, in order to seize sir John Dineley Goodere that day;
but it so happened that the captain forbid them to do it then.
And that on Sunday last, this examinant, the said barge's crew,
or the greatest part of them, and George Best, cock-stern of
the barge, the said Edward Mac-Daniel, John Mac-Graree, William
Hammon, and one Charles Bryer, privateer's men as aforesaid,
were again placed at the White-Hart aforesaid, to seize the
said sir John Dineley Goodere, and waited there for some time;
and he coming out of Mr. Jarrit Smith's house, and coming under
St. Augustine's church-yard wall, this examinant and his
comrades pursued him, and near the pump there they came up with
him, and told him there was a gentleman wanted to speak with
him; and he, asking where the gentleman was, was answered, a
little way off, and he went quietly a little way; but no one
appearing, he resisted and refused to go; whereupon this
examinant and comrades sometimes forcibly hauled and pushed,
and at other times carried him over St. Augustine's butts,
captain Day's rope-walk, and along the road to the hot-well
(captain Goodere being sometimes a little behind, and sometimes
amongst the crowd all the way), till they came to the slip
where the barge lay. But sir John was very unwilling to go,
made the utmost resistance, and cried out murder a great many
times; and when he was put into the barge, called out and
desired somebody would go to Mr. Jarrit Smith, and tell him of
his ill-usage, and that his name was sir John Dineley;
whereupon the captain clapt his hand on sir John's mouth to
stop him speaking, and told him not to make such a noise, he
had got him out of the lion's mouth (meaning the lawyer's
hands), and would take care he should not spend his estate; and
bid the barge men row away, which they did; and in their
passage to the man-of-war, the two brothers bickered all the
way. But when they came to the man-of-war, sir John went on
board as well as he could, and the captain took him down into
the purser's cabin, and stayed a little time with him, and
treated him with a dram of rum, and then left him for a
considerable time; and in the interim sent for this examinant
into his, the captain's cabin, and there told this examinant he
must murder his brother, for that he was mad, and should not
live till four o'clock in the morning; and this examinant
reasoning with him, and telling him he would not be concerned
and that he thought he had brought him there with intent only
to bring him to reason, and take care that he should not spend
his estate in law, and to have a perfect reconciliation: but
the captain still insisting, that this examinant had taken him,
he should do it; and this examinant then saying, he was not
able to do it of himself, the captain replied, if this
examinant could get nobody else, he and this examinant must do
it themselves. And then ordered him to call one Elisha Cole;
and he being too drunk to undertake such an affair, bid this
examinant call one Charles White, a very stout lusty fellow,
and the captain gave him a dram, and bid him sit down, and soon
gave other drams, and asked him if he could fight, and told
him, Here is a madman, he must be murdered and thou shalt have
a handsome reward. And this examinant, the said Charles White,
and the captain, all being agreed to murder the said sir John
Dineley Goodere, the captain then proposed the method, and
produced a piece of half-inch rope about nine foot long, and
Charles White having made a noose in the rope, the captain
said, applying himself to this examinant and the said Charles
White, You must strangle him with this rope, and at the same
time gave the handkerchief now produced, that in case he made a
noise, to stop his mouth; and said, I will stand sentinel over
the door whilst you do it; and accordingly instantly went out
of his own cabin, and turned the centinel from the purser's
cabin-door, and let this examinant and White into the purser's
cabin, where sir John Dineley Goodere was lying in his clothes
on a bed. The captain having pulled to the door, and standing
centinel himself, the said White first strangled sir John with
his hands, and then put the rope about sir John's neck and
hauled it tight, and sir John struggled, and endeavoured to cry
out, but could not. And this examinant confesses, that whilst
White was strangling sir John, this examinant took care to keep
him on the bed, and when one end of the rope was loose, this
examinant drew and held it tight; and thus each bore a part
till sir John was dead; and they having rifled the deceased of
his watch and money, knocked at the door to be let out; and the
captain called out, Have you done? they replied, Yes. He opened
the door, and asked again, Is he dead? And being answered in
the affirmative, and having a light, swore, by God, he would be
sure he was dead; and then went in himself, and returning,
locked the door, and put the key in his pocket, and they all
went together to the captain's cabin again, and there this
examinant gave the captain sir John's watch, and the captain
gave this examinant his own watch in lieu of it; and then the
captain gave them both some money, and White afterwards gave
this examinant eight guineas as part of the money he took out
of the deceased's pocket, and then the captain ordered them to
be put on shore in his own boat. And further this examinant
confesses and saith, That before and after the murder was
committed, the captain, Charles White, and this examinant
consulted what to do with the corpse; and the captain proposed
to keep it two or three days in the ship, and, as he expected
to go to sea, would sew it up in a hammock, or something else,
and there throw it over-board. And that before this examinant
and his comrades were sent to seize sir John, as is before set
forth, they were ordered by captain Goodere, that, if they met
with any resistance, they should repel force by force, and were
prepared with short heavy sticks or bludgeons for that
purpose.
MATTHEW MAHONY.
The Recorder cautioned the jury that this statement was evidence against
Mahony only, and was not to be taken as evidence against Goodere.
_Vernon_ said that this concluded his evidence as to the facts; but that
as Goodere had made a point as to the position of the ship, he would
call evidence to show that the King Road had always been taken to lie
within the city and county of Bristol; and that the sheriff's officers
of Bristol had always used to execute both city and county process in
the King Road.
_John Wint_ and _Lowden_ were called, and proved that they had served
process out of the Mayor's and the Piepowder Court, and process issued
out of the King's Bench, and the Common Pleas, and the Admiralty Court,
in the King Road.
_Goodere_ being called on for his defence, said that he would call
witnesses to prove that sir John was a lunatic, and that he was doing
his best to take care of him.
_Mrs. Gethins_ said that Goodere had asked her for a garret to keep his
brother in, for he was a madman; he made no secret of it. She had heard
nothing about Mahony having five pounds a month to take care of him. She
had heard Goodere talk with his own doctor about his brother.
_Mr. Marsh, sworn._
GOODERE--Did you go ashore in the morning about the king's
business, or what business did you go about?
MARSH--I had an order about eight o'clock the night sir John
was brought on board, to go up in the morning to Bristol for
the letters from the Admiralty, and about four of the clock in
the morning I was called up to go: but the lieutenant seemed
much disordered, and bid me come to him before I set out. I
waited on the lieutenant, and told him, that White and Mahony
said they had liberty to go on shore, that the captain had
given them liberty to go; the lieutenant said, he knew nothing
of it. But as it is always my way, before I carry anybody off,
I said, I would go to the captain and ask leave. I went to the
captain, and asked him, if White and Mahony had liberty from
him to go on shore? And he said, Yes, let them go.
GOODERE--Mr. Marsh, did you go upon the king's business, or on
purpose to take up these men?
MARSH--I went about the king's business.
VERNON--But it was after sir John was brought on board, that
Mr. Goodere ordered you to go up?
MARSH--Yes, Sir, it was.
VERNON--Did anybody else go up with you, besides Mahony and
White?
MARSH--No, there did not.
VERNON--Did Mr. Goodere give you orders to put them on shore in
any particular place?
MARSH--I will do justice between man and man: the captain did
not give me orders to put them on shore in any particular
place.
VERNON--Were they landed publicly or privately?
MARSH--I put them on shore at the Gibb, about six of the clock
in the morning.
GOODERE--Now, may it please you, sir, I shall show that Mahony
had business at Bristol that day by appointment, to receive
some wages that was due to him; for which purpose I shall call
Mr. Dagg.
_Abel Dagg_, the keeper of Newgate, had had one Mervin in his house as a
prisoner for debt. Mahony had a claim against him for wages due to him
before he was pressed, and Mervin wished to settle the matter with him.
Accordingly Dagg had seen Goodere on the Tuesday or Wednesday before
this matter, and he said that he would meet Dagg to accommodate the
difference on the Monday following. The captain made the appointment to
meet him on the Monday, but he told Taylor, an attorney, that Mahony
would come on shore on Monday. He did not know that White had any
business on shore on Monday.
_Bridget King_ was sworn.
GOODERE--Mrs. King, will you give the Court an account of what
you know of the lunacy of my brother sir John Dineley?
MRS. KING--Please you, my lord, I think he was mad; for he
would get up at two or three of the clock in the morning, and
call his servants up, and fall a-singing; and then he would go
to bed again, and swear it was but twelve o'clock at night, and
lie a-bed all day. He would send his boy out all over his
grounds to pick up stones, and have the wheel-barrow rattling
about the streets on a Sunday: he hath ringed the bell to call
his servants up to his bedside, and when they were come up, he
would ask them what they did there, and swear they were come to
shoot him? He himself hath gone over all his grounds on a
Sunday to pick sticks, and hath sent his servants to market
when there was none; and he would be busy in every thing, and
hang on the pot himself; and he hath been quite raving mad.
VERNON--Did you live as a servant to sir John?
MRS. KING--I lived as a servant with him in London, and he came
down for the air to Tockington; he brought me down to go to
Bath.
VERNON--How long did you continue with him?
MRS. KING--A twelve-month, sir.
VERNON--And how durst you venture to live so long with a
madman? He did not go mad for love of you, I hope? Have you
lived any time in Bristol?
MRS. KING--No.
VERNON--Then I suppose you came but now from London?
MRS. KING--Yes, I did.
GOODERE--Do you believe he was a madman?
MRS. KING--In the actions that I have seen by him, I have
reason to think he was a madman.
_Mrs. Mary Stafford, sworn._
GOODERE--Mrs. Stafford, will you tell his lordship and the jury
what you know of sir John's being a lunatic?
MRS. STAFFORD--Sir John hired me for a housekeeper in London,
and told me he had a great many servants, and he wanted a
housekeeper. When he brought me down, he ordered me to his
seat at Tockington; where, he said, he had a great deal of
company frequently. When I came there, I found there was
nothing in what he had told me; for, instead of a great many
servants, he had but one: a poor old shattered house, ready to
tumble down about one's ears, and the household goods all to
pieces: he was a madman, for if I had followed his directions
in any thing I should have done mischief. He hath sent me and
the rest of his servants to Thornbury market, when there was
none; he hath ringed the bell to call his servants to come to
his bedside to him, and when we have come up to him, he hath
asked us, what we did there? Sir, said I, you called me up; he
hath said he did not: and after we had been there a quarter of
an hour, he would take a knife, fork, glass-bottle, or anything
that came in his way, to throw at us, asking of us, What did we
come to rob him? And I was afraid of my life, to live with him.
I do believe he was a madman, or else he would never have acted
as he did; he would go into the kitchen, and take the pot, and
hang it on the fire. I style him a madman by his actions.
VERNON--And must he therefore be hanged himself like a mad dog,
think you?
MRS. STAFFORD--I know nothing of that, Sir.
VERNON--How long did you live with sir John?
MRS. STAFFORD--Three months, Sir.
GOODERE--Call Mr. Robert Cock.
THE RECORDER--What do you call him to prove?
GOODERE--My lord, in order to prove sir John Dineley a lunatic.
Mr. Cock, will you give an account to my lord and the jury what
you know of the lunacy of sir John Dineley?
_Robert Cock, sworn._
COCK--My lord, I have known Mr. Dineley at Charlton for some
years; I have been several times in his company; I have seen
him do several acts of lunacy, as a madman.
VERNON--Where do you live?
COCK--I live in Cumberland, when I am at home.
VERNON--Are you of any business?
COCK--I am an officer belonging to his majesty.
VERNON--What kind of officer?
COCK--A salt officer.
GOODERE--I will not give your lordship and the jury much more
trouble. I am entirely innocent; they have not proved that I
was present at the death of sir John Dineley.
THE RECORDER--Don't deceive yourself; though they have not
proved you was actually in the cabin, when sir John was
murdered, yet they have given evidence of that, which (if the
jury give credit to) will amount to presence in the eye of the
law.
GOODERE--I shall now call some witnesses to my character, and
likewise to shew how improbable it is that I should be guilty
of the murder of my brother.
Call Mr. Pritchard.
_Mr. Pritchard_ had known Goodere many years; he always bore the
character of a good husband, a good neighbour, and a kind friend.
_The Rev. Mr. Watkins_, three months or half a year before Sir John's
death, had told Goodere that Sir John had told him that he had made his
will and cut his brother off from everything, and had given his estate
to the Footes. The witness had found Sir John a good neighbour, and a
kind friend; he was a man of strong passions, and if any one affronted
him, he would let the party know that he did resent it. His tenants, and
those the witness had conversed with, said that he was one of the best
of landlords.
VERNON--I don't ask you, Sir, concerning his moral character;
but whether he was in his senses or not?
WATKINS--In his senses! I saw him last Christmas, he was making
up his accounts with several of his tenants; he was then in
very good understanding. I take him to have been a man that
always had his senses in a regular exercise.
VERNON--What have you heard the prisoner Mr. Goodere say in
relation to Sir John's making his will?
WATKINS--I believe he told me that sir John had not the power
to make a will; I told him it was my opinion, if they would be
reconciled together, sir John's will would not stand.
_Mr. Thomas_ and _Mr. Ashfield_ and the _Rev. Mr. Rogers_ spoke in
general terms to Goodere's good character.
_George Forcevil_ had known him for fourteen or fifteen years; he had a
very good character in the neighbourhood; he constantly attended his
church twice a day Sundays, and would be there at prayers almost every
day. He thought him to be a good man.
_Goodere_ said he would not trouble the Court with any more evidence as
to his character; he was deprived of some evidence by reason of his
sickness in gaol, which prevented his friends from coming to advise him
about his defence; also there were witnesses on board the ship who might
have been of great service to him, but the ship had sailed before he got
an order from the Admiralty ordering them to stay on shore.
_Frederick_ drew the Recorder's attention to the fact that there had
been several aspersions in the newspapers to the prejudice of Goodere,
and that a pamphlet had been published in Bristol called _The Bristol
Fratricide_; but he hoped that the jury would not be influenced by such
matters against the prisoner.
The jury declared that they had never seen any such pamphlet or
newspapers.
VERNON--Mr. Recorder, we must beg leave to ask Mr. Jarrit
Smith's opinion, as to Sir John's being a lunatic or not?
SMITH--I am surprised to hear it said by some of Mr. Goodere's
witnesses that sir John Dineley Goodere was mad. I knew him
fourteen or fifteen years, and conversed with him both in
person and by letter; but never discovered that he was in the
least disordered in his senses, I always took him to be a man
of sound understanding. On the Sunday before his death, he
expressed himself with a great deal of good nature and
affection at the sight of his brother.
_Shepard_ proposed to call evidence to show that the place where the
ship lay was not in the city and county of Bristol.
_The Recorder_ said that the evidence that had been given as to the
service of writs, proved that the King's Road was within the
jurisdiction, and it was admitted that the ship lay within the Road. If,
however, the prisoner could show that any part of the Road was, or ever
had been esteemed to be, within any other county than the county of the
city of Bristol, he would hear him. He then asked Mahony if he had
anything to say.
MAHONY--I hope your Lordship will consider that I was a poor,
pressed servant, and that I was drunk when I made the
confession, and I was frightened out of my wits.
MR. RECORDER--You say you were drunk when you made the
confession; it is possible, that night when you were taken and
brought before the magistrates you were in liquor, but it seems
your confession was not taken until the next day.
_Vernon_ then replied on the whole case; confining himself to pointing
out that if Goodere was abetting Mahony in killing Sir John, it made no
difference that he was not in the cabin at the time that he was killed.
_Shepard_ replied, trying to distinguish Goodere's case from those which
had been cited by Vernon, and suggesting that Goodere only brought his
brother on board the ship in order that he might take proper care of
him; but the Recorder stopped him, pointing out that he was going off
from the point of law to matter of fact. He said that he should tell the
jury that if they believed that Goodere stood at the cabin door to
prevent any persons coming who might prevent the murder, or to encourage
those within in the business they were about, they must find him guilty
on the indictment. He then recapitulated the facts in some detail, but
did not add any comment. He concluded by laying down the law as to
whether Goodere was an accessory to what was done, in the sense already
indicated, and told the jury that, in such a case as the present, they
would be well-advised not to attach much weight to the evidence given as
to Goodere's character.
The jury thereupon retired, and after a short space returned, and found
both the prisoners Guilty.
The next day Charles White was tried on a separate indictment for the
same murder. He pleaded Not Guilty, but was convicted, chiefly on the
evidence of Jones the cooper and his wife, and his own confession.
On the next day all three prisoners were brought up, and having nothing
to say for themselves were all sentenced to death.
They were all hung at Bristol on the 15th of April, having confessed the
fact. 'The body of Mahony is hung in chains near the place where the
horrid fact was committed.'
FOOTNOTES:
[51] Samuel Goodere (1687-1741) entered the navy in 1705, served through
the War of Spanish Succession, but in 1719 was found guilty by a
court-martial of having been very much wanting in the performance of his
duty in the attack on St. Sebastian in the same year. He was temporarily
appointed to another ship for rank in 1733. He was then living with his
father, who had quarrelled with John; and apparently John had quarrelled
with his wife, who was supported against him by Samuel. The father's
will disappointed both sons, and John, having cut off the entail of his
estate during his son's life, after his death announced his intention of
leaving it to one of the Footes, a cousin of the actor, which probably
led to his murder. Samuel left two sons; it seems doubtful whether they
succeeded to the baronetcy. The elder died insane. The younger became a
poor knight at Windsor, and dropped the name of Goodere. He made himself
conspicuous by the oddity of his behaviour. He believed that a small sum
of money expended in law-proceedings would realise a fortune, and that
that money would be obtained through a wife. He therefore frequented
crowded places, and on seeing any woman or girl he did not know would
present her respectfully with a printed proposal of marriage. He died in
1809.
[52] Sir Michael Foster (1681-1763) entered Exeter College 1705, was
called to the Bar in 1713, and practised locally at his native town of
Marlborough. He became Recorder of Bristol in 1735, and a puisne judge
of the King's Bench in 1745. He enjoyed a great reputation as a master
of Crown Law, and was the author of the well-known _Discourses_ on that
subject.
[53] After mentioning certain obsolete rules relating to indictments,
Sir James Stephen says:--'I do not think that anything has tended more
strongly to bring the law into discredit than the importance attached to
such technicalities as these. As far as they went, their tendency was to
make the administration of justice a solemn farce. Such scandals do not
seem, however, to have been unpopular. Indeed, I have some doubt whether
they were not popular, as they did mitigate, though in an irrational,
capricious manner, the excessive severity of the old criminal law'
(_Hist. Crim. Law_, vol. i. p. 284).
[54] It is curious that Shepard did not take the point that the prisoner
was not described as a baronet, which he in fact became on his brother's
murder. Till recently such an objection would have been fatal.
INDEX
Albemarle, Duke of, takes information in Lord Russell's case, ii. 36.
Albert, Archduke, sends embassy to James I., i. 3;
Cobham's connection with, 24.
Aldridge, George, witness against Cowper, how he left the town, ii.
170, 171.
Aleyn, Sir Thomas, witness against Col. Turner, i. 170-180, 186, 191,
192, 201.
Amy, Henry, wounds of French and Lord Warwick; arrival at the Bagnio of
other duellists; condition of their swords, ii. 101.
Anderson, Lord Chief-Justice, i. 10.
Andrews, Doctor, i. 22.
Anglesey, Lord, gives evidence in favour of Lord Russell, ii. 38, 39.
Applegate, chairman, witness against Lord Warwick, ii. 92-95;
carried Lord Mohun to Leicester Fields, 92;
carried French to the Bagnio, 93;
Mohun tried to stop quarrel, 95.
Arabella. _See_ Stewart, Lady Arabella.
Aremberg, Duke of, ambassador of Henry IV., i. 3;
overtures to, 3, 12, 19, 29, 35, 55;
Raleigh's account of, 25, 47, 49, 57.
Argyle, Duke of, and Lord Russell's Plot, ii. 27.
Armstrong, Sir Thomas, and Lord Russell, ii. 8, 11, 13, 47;
and the Rye House Plot, 25.
Arundel, Lord, at Raleigh's execution, i. 69, 71.
Atterbury, a witness in Lord Russell's trial, ii. 32.
Axtel, Daniel, regicide, i. 129, 150;
statement by, as to Hulet, 162.
Babington, Dr., witness against Cowper, ii. 165.
Barefoot, Mrs., witness for Cowper, ii. 214.
Barter, witness against Lady Lisle, i. 249, 250;
re-examined as to Dunne's statements, 256.
Beavor, witness against Peters, i. 152, 154.
Berry, James, found Sarah Stout drowned, ii. 151, 153.
Blisset, Col., witness for Lord Warwick, ii. 115-117;
Warwick gives Coote 100 guineas, 115;
friendship between them, 116.
Blunt, Charles, Earl of Devon, i. 9.
Bocking, Jane, bewitched, i. 214, 225.
Bowd, witness for Cowper, as to Sarah Stout's melancholy, ii. 239, 240.
Bownes, John, regicide, i. 129.
Bradshaw, John. _See_ Charles I., i. 75-119, 76;
discusses authority of Court, 80-87;
asks the King to plead, 91, 92;
declares sentence settled, King to be heard, 96, 97;
final speech by, 103-117.
Brandon, George, the executioner of Charles I., i. 163, 165, 166.
Bridgman, Sir Orlando. _See_ Harrison, Peters, and Hulet, i. 125, 129;
tries Col. Turner, 169.
Brook, George, i. 4-8, 11;
and the 'Bye,' 16, 30;
Cecil's examination of, 28;
pension to, 35, 36;
and Copley, 39;
examination of, 40;
book given to, 40, 41;
and Arabella Stewart, 47.
Browne, Sir Thomas, witness against the Suffolk witches, i. 227.
Browne, Thomas, chairman, witness against Lord Warwick, ii. 82-87;
carried Coote to Leicester Fields, 83;
tried to carry Coote to the surgeon, 84;
cross-examined, 81, 87.
Buchanan, David, witness against Goodere, ii. 268-272;
Goodere and Mahony at Sir John's cabin, 270, 271.
Burnet, Dr., gives evidence in favour of Lord Russell, ii. 40-44;
accompanies him to the scaffold, 54.
Campbell, Sir ----, and Lord Russell's plot, ii. 28.
Campian, Edmund, Jesuit, i. 47.
Capel, Lord, execution of, i. 164.
Carew, advises Raleigh to escape, i. 70.
---- John, regicide, i. 129.
Carpenter, Dunne's evidence as to, ii. 68, 81;
witness against Lady Lisle, 77.
Castlewood, Lord, duel with Lord Mohun, ii. 130-135.
Cavendish, Lord, gives evidence in favour of Lord Russell, ii. 42.
Cawthorne, witness against Lord Warwick, ii. 68-82;
French and Coote start from Locket's and return, 70, 71;
quarrel at Locket's, 71;
party leave Locket's, 71, 72;
cross-examination, 72-82;
heard no quarrel between Warwick and Coote, 73;
quarrel at Locket's, 75-82.
Chamberlain, Sir T., witness against Turner, i. 189, 190, 201.
Chandler, Susan, bewitched, i. 214;
state of, at the Assizes, 214;
evidence as to, 226;
recovers on verdict, 234.
Charles, Prince of Wales, i. 61.
Charles I., trial of, i. 75-119:
assembling of the High Court, 76-79;
charge read, 79, 80;
authority of Court discussed, 80-83;
the Court adjourns and re-assembles, 83;
King charged, authority of Court discussed, and King refuses to
plead, 84-87;
Court adjourns and re-assembles, 89;
Solicitor-General demands judgment, 89-91;
King charged and refuses to plead, 91-95;
Court adjourns and re-assembles, 95;
sentence agreed on, King to be heard, 96, 97;
King demands to be heard by Lords and Commons and is refused, 97-101;
Bradshaw's speech, 103-117;
sentence on the King, 118.
Charles II. and the regicides, i. 120-125.
Clement, seaman, witness against Cowper, as to corpses floating, ii.
166-168.
Clifford, Lord, witness for Lord Russell, ii. 46.
Coatsworth, surgeon, witness against Cowper, ii. 158, 159, 163, 164.
Cobham, Lord. _See_ Raleigh, i. 1-71;
in opposition, 2;
overtures to French and Spanish, 3;
Raleigh accuses, 5;
avows Raleigh's guilt; 6;
not a witness, 33, 37-39, 47-49;
takes message to Aremberg, 19;
letter to, from Raleigh, 21;
Raleigh's instigation of, 21, 23;
examination of, 23, 24, 40, 41;
Raleigh's reply to, 25, 26;
second examination of, 26, 27, 35, 45;
Cecil's examination of, 28, 29;
Coke's argument as to Raleigh's complicity with, 29-33;
Raleigh's confession as to, 36;
letter to the lords, 55, 56;
to Raleigh, 56, 57.
Cochram, Sir John, and Lord Russell's plot, ii. 28, 29.
Coke. _See_ Raleigh's trial, i. 1-71;
opening speech by, 13-23;
on Raleigh's connection with Cobham, 29-33;
on Cobham's letter, 53-56;
final sentence of Raleigh by, 65.
Cook, John, solicitor to the Commonwealth, i. 79, 124, 129.
Coote, opening as to, in Lord Warwick's case, ii. 65-68;
leaves Locket's first and returns, 71;
leaves with Warwick and Lord Mohun, 71, 72;
no quarrel with Warwick, 73, 74, 76, 108, 110, 114, 117, 119;
quarrel with French, 75;
conversation of, with Warwick and Mohun in St. Martin's Lane, 83, 86,
87;
wounded in Leicester Square, 84, 88;
death of, 89;
killed by French, 102;
news of his death, 104;
Warwick's account of the death of, 111, 112;
receives money from Warwick, 115, 116.
Copley, i. 4;
his confession, 35, 39.
Corriton, prosecutes Lady Lisle, i. 241.
Cotton, Sir Robert, King Charles taken to his house, i. 89, 119, 150.
Court, Theodore, witness against Goodere, master of the _Ruby_, ii.
264-267, 268.
Cowper, Dr. W., witness for Spencer Cowper, ii. 197.
---- Spencer, trial of, ii. 139-228;
opening of case against, 141-146;
at Sarah Stout's house, Walker's evidence, 140-148;
Sarah Stout's melancholy, 140-151;
the finding of Sarah Stout's body, 151-155;
medical evidence for the prosecution, 154-162;
evidence as to dead bodies floating, 162-169;
how Cowper left Hertford, 169, 170;
Cowper's defence, 183-187;
the finding of the body, 187-194;
medical evidence, evidence of Sir Hans Sloane, etc., 194-199;
Sarah Stout's melancholy, 199-205;
Sarah Stout and Mr. Marshall, 206-208;
letters to Marshall, 208-210;
letters to Cowper, 210-212;
Cowper's connection with Sarah Stout, 212-214;
summing up, 224-246;
acquittal and appeal proceedings, 227, 228.
Cowper, William, witness for Spencer Cowper, ii. 212-214.
---- Mrs., evidence of, for Spencer Cowper, as to Sarah Stout's
melancholy, ii. 201, 202.
Cox, Dr. Thomas, witness for Lord Russell, ii. 44.
---- William, witness against Hulet, i. 164.
Crattle, James, witness against Lord Warwick, ii. 90-92;
carried him to Leicester Square, 90;
and to the Bagnio, 91.
Creed, witness for Lady Lisle, i. 262.
Crippes, William, witness against Lord Warwick, ii. 87-90;
helped to carry Coote to Leicester Fields, 87;
conversation in St. Martin's Lane, 87, 88;
Coote wounded, 88.
Cromwell, Oliver, and Peters, i. 142-145, 149, 150.
Cullender, Rose, trial of, i. 211-235;
indictment, 213;
bewitched the Pacys, 221; 223, 224;
and the Durents, 225;
and Susan Chandler, 226;
touches the children in court, 229;
bewitches Soam's cart, 231;
and Sherringham's beasts, 232;
defence of, 233;
summing up and verdict as to, 234.
Dew, Robert, witness for Cowper, as to finding Sarah Stout's body, ii.
188-190.
Dimsdale, John (senior), surgeon, witness against Cowper, ii. 160-162.
---- ---- surgeon, witness against Cowper, ii. 154-156, 161.
Dockwra, opening as to, in Lord Warwick's case, ii. 165;
arrival at the Bagnio, 97;
tried for murder of Coote, and convicted of manslaughter, 112.
Doncaster, Lord, at Raleigh's execution, i. 69, 70.
Duckinfield, Captain Loftus, witness against Lord Warwick, ii. 102-107;
interview with Warwick, James, and Dockwra, 102;
French killed Coote, 102;
Warwick fought with James, 103;
duellists to leave London, 104;
condition of Warwick's sword, 105.
Dunne, James, witness against Lady Lisle, i. 242;
examination in chief, 242-247;
cross-examination of, 247-249;
re-examined as to what he told Lady Lisle, 250-255;
re-examined as to arrests at Moyles Court, 255-257;
final examination of, 258-261.
Duny, Amy, trial of, for witchcraft, i. 211-235;
indictment, 213;
bewitches William Durent, 215, 217;
and Elizabeth Durent, 217;
and Dorothy Durent, 218;
touches Elizabeth Pacy, 219;
bewitches Elizabeth Pacy, 220-225;
admission by, 221;
bewitches Diana Booking, 225;
present while a child is touched by another, 229;
bewitches geese, a chimney, and a firkin of fish, 232, 233;
defence by, 233;
summing up as to, and verdict, 234.
Durent, Ann, bewitched, i. 213, 225;
state of, at the Assizes, 214.
Durent, Elizabeth, bewitched, i. 213;
bewitched by Amy Duny, 217, 218.
---- William, bewitched, i. 214;
bewitched by Amy Duny, 215.
Esmond, Henry, present at duel between Lord Castlewood and Lord Mohun,
ii. 130-135.
Essex, Earl of, i. 54, 59, 70, 71.
---- ---- and Lord Russell, ii. 8;
Howard's evidence as to, 26, 29.
Fairfax, Lady, interrupts Charles I.'s trial, i. 96.
Fane, guides Dunne to Moyles Court, i. 246.
Ferguson, and Lord Russell, ii. 8, 13.
Finch, Sir Heneage, i. 127;
prosecutes Russell when Solicitor-General, 5;
speech of, 47-50.
Fleetwood, George, i. 129.
Ford, Sir Richard, sheriff, complaint against, in Turner's trial, i.
169;
at Turner's execution, 208.
Foster, Sir Richard, tries Goodere, ii. 232.
Foster, Sir Robert, i. 126.
French, opening as to, in Lord Warwick's case, ii. 65-68;
leaves Locket's first, and returns, 71;
quarrel with Coote, 75;
wounded, 93;
arrival at the Bagnio, 96;
condition of his sword, 97, 98;
killed Coote, 102;
tried for murder of Coote, and convicted of manslaughter, 112.
Fry, Elizabeth, witness against Turner, i. 184, 185.
Garland, Austin, regicide, i. 129.
Garth, Dr., witness for Cowper, ii. 235, 236.
Gin, Richard, seaman, witness against Cowper as to corpses floating,
ii. 168, 169.
Gittens, witness against Hulet, i. 158-160.
Glover, Cornelius, witness against Peters, i. 154, 155.
Goodall, witness against Lord Warwick, arrival of the duellists at the
Bagnio, ii. 101.
Goodere, Sir John. _See_ Goodere, Samuel.
---- Samuel, trial of, ii. 231-304;
Vernon opens the case, 232-236;
Sir John at Jarrit Smith's house, 238, 239;
meets Goodere there, 241, 242;
counsel's right to cross-examine, 245;
description of Sir John in the indictment, 247, 248;
Goodere visits the White Hart, 249-254;
Sir John carried to the _Ruby_, 255-264;
Sir John on the _Ruby_, 264-289;
Sir John murdered, 274-282;
Mahony's confession, 291-295;
question of jurisdiction, 295;
Sir John's madness, 297-301;
Goodere's character, 301;
defence, 303;
summing up, verdict and sentence, 304.
Gore, Mr. Sutton, witness for Lord Russell, ii. 46.
Gregory, Clement, regicide, i. 129.
Grey, Lord, connection with Raleigh, i. 2-8, 16, 17;
Cecil arrests, 28.
Grey of Werk, Lord, and Lord Russell, ii. 7, 8, 11, 13, 47.
Gunter, witness against Peters, i. 145, 146.
Gurrey, John, Mrs., and Elizabeth, witnesses against Stephens, etc.,
their conduct and conversation in Hertford, ii. 171-180.
Hacker, Francis, regicide, i. 129.
Hale, Sir Matthew, trial of Suffolk witches by, i. 212;
Lord Campbell on, 213 _n._
Hamilton, Duke of, execution of, i. 164.
Hampden, John, and Lord Russell, ii. 10;
Howard's evidence as to, 26.
Harrison, Colonel Thomas, trial of, i. 130-139;
pleads after discussion, 130, 131;
present in the High Court, 133;
and at a Committee Meeting, 132, 133;
conducted the King from Hurst Castle to London, 133, 134;
defence of, 135-139;
sentence on, 139, 140.
Hatsell, Sir Henry, tries Spencer Cowper, ii. 140.
Hawles, Sir John, prosecutes Lord Warwick when Solicitor-General, ii.
122-127.
Heale, Serjeant, i. 13.
Henry, Prince of Wales, Raleigh's pupil, i. 61.
Henry IV. of France, i. 3.
Hevingham, William, regicide, i. 129.
Hewson, Colonel, and King Charles's execution, i. 159, 160, 161.
Hicks, and Lady Lisle, i. 241;
tried and hanged, 242;
Lady Lisle agrees to receive, 244;
journey with Dunne, 245;
discovered at Moyles Court, 255;
message to, and reception by, Lady Lisle, 258-261.
Hide, Sir Robert, i. 126;
tries Colonel Turner, i. 169;
summing up of, 193, 194.
Hill, William, witness against Turner, i. 182, 184, 191.
Hobbs, Morris, witness against Goodere, landlord of the White Hart, ii.
248-255;
Goodere's first visit, 290-292;
his second visit, 293-295.
Holland, Earl of, execution of, i. 164.
Hollis, Denzil, i. 136, 138.
Holt, John, defends Lord Russell, ii. 6.
Howard, Thomas, Earl of Suffolk, i. 8.
---- Henry, Earl of Northampton, i. 9.
---- of Escrick, Lord, and Lord Russell, ii. 8;
witness against Lord Russell, ii. 14-32;
declarations of Russell's innocence, 38-42, 44-46, 48, 52.
---- Mr., gives evidence in favour of Lord Russell, ii. 39-41.
Hulet, William, trial of, i. 158-166;
on the scaffold of Charles I., i. 159;
statements by, and reports as to, 160-163;
sentence on, 165, 166.
Ireton, General, and Peters, i. 146, 147, 148.
James, opening as to, in Lord Warwick's trial, ii. 65-68;
sent for to Locket's, 69;
tries to stop the quarrel, 80;
arrival at the Bagnio, 87;
condition of his sword, 100;
fought with Warwick, 103;
tried for murder of Coote, and convicted of manslaughter, 112.
Jeffreys, Lord Chief-Justice, tries Lady Lisle, i. 239-275;
summing up of, 263-269;
and the jury, 270-272;
prosecutes Lord Russell when a serjeant, ii. 50.
Jenkins, Sir Leoline, takes information in Lord Russell's case, ii. 36.
Jones, conducts prosecution of Cowper, ii. 140.
---- Edward, witness against Goodere, ii. 274-279;
saw murder of Sir John, 276;
helped to arrest captain, 278.
---- Mrs., witness against Goodere, saw murder of Sir John, ii. 280,
281.
---- John, regicide, i. 129.
Keeting, Captain, witness for Lord Warwick, ii. 113, 114.
Kelyng, Sir John, i. 127;
action in trial of Suffolk witches, i. 226, 229.
Kemish, Francis, i. 21, 45.
La Chesnee, i. 64, 70.
Lawrency, Raleigh plots with, i. 19, 25, 29;
examination of, 35.
Le Clerc, i. 63, 70.
Leeds, Duke of, cross-examination by, in Lord Warwick's trial, ii. 85,
86.
Lilburne, Robert, i. 129.
Lisle, John, husband of Lady Lisle, i. 239.
---- Lady Alice, trial of, i. 239-275;
agrees to receive Hicks, 244, 245;
Dunne's first account of her reception of Hicks, etc., 246-249;
Barter's account of the same, 249;
Dunne's second account, 250-255;
denial of, as to Hicks and Nelthorp, 257;
Dunne's third account, 258-261;
defence of, 262, 263;
summing up as to, 263-269; verdict, 272;
sentence, 272, 273;
execution of, 274;
reversal of attainder of, 274, 275.
Macartney, Captain, second to Lord Castlewood, ii. 130-135.
Mallett, Sir Robert, tries the regicides, i. 126.
Manchester, Lord, tries the regicides, i. 136.
Markham, Sir Griffen, and the 'Bye,' i. 4, 6, 21.
Marshall, witness for Cowper, acquaintance with Sarah Stout, ii. 207,
208;
letters from Sarah Stout, 208, 210.
Marson, John (see Cowper, Spencer, trial of, ii. 139-228);
leaves London and arrives at Hertford, 218, 224;
conversation at Gurrey's, 219;
at the Devil, 221;
character of, 221, 222;
summing up, 224-226;
verdict, 227.
Marten, Henry, regicide, i. 124, 129.
Masterson, witness against Harrison, i. 132.
Melvile, Lord, and Lord Russell's plot, ii. 28.
Meyn, Simon, regicide, i. 129.
Millington, Gilbert, regicide, i. 129.
---- witness against Turner, i. 188, 201.
Milton, John, i. 124.
Mohun, Lord, ii. 59;
true bill against, 62;
opening as to, 65-68;
tries to stop quarrel at Locket's, 71, 77, 79, 80;
leaves with Lord Warwick and Coote, 71, 72;
conversation of, with Coote and Warwick in St. Martin's Lane, 83, 86;
trial and acquittal of, 130;
duel with Lord Castlewood, 130-135.
Monmouth, Duke of, and Lord Russell, ii. 7, 11, 13;
connection with Lord Howard, 20-26, 47, 48, 51.
Montague, Lord Chief-Baron, tries Russell, ii. 5.
Mortimer, Dr., witness against Peters, i. 151, 152.
Mosely, witness for Turner, i. 201.
Mundy, prosecutes Lady Lisle, i. 241.
Nailor, Dr., witness against Cowper, ii. 164.
Nelson, Lieut.-Col., witness against Hulet, i. 162.
Nelthorpe, brought to Lady Lisle by Dunne, i. 245;
discovered at Moyles Court, 255;
reception by Lady Lisle, 258-261.
Nevill, Sir Edward, opinion of, in Lord Warwick's case, ii. 126.
Newburgh, Lord, witness against Harrison, i. 133.
Normanby, Marquis of, cross-examination by, in Lord Warwick's
trial, ii. 85.
Northampton, Lord, at Raleigh's execution, i. 61.
North, Sir Dudley, appointed Sheriff of London, ii. 3.
---- Francis, prosecutes Lord Russell, ii. 5;
opens the case, 7.
Northumberland, Earl of, i. 2, 3.
Nunnelly, Richard, witness against Peters, i. 150, 151.
Nutley, witness against Harrison, i. 132.
Pacy, Deborah, bewitched, i. 214;
too ill to be brought to the Assizes, 219;
evidence as to, 219-223.
---- Elizabeth, bewitched, i. 214;
state of, at the Assizes, 214;
being unconscious at the Assizes, recognises and assaults Amy Duny,
219;
evidence as to, 219-223.
Palmer, Sir Geoffrey, i. 127.
Payton, Sir John, i. 21.
Pemberton, Sir Francis, Lord Chief-Justice, tries Russell, ii. 4.
Pennington, Isaac, i. 129.
Penruddock, John, i. 239.
---- Col., i. 239;
witness against Lady Lisle, as to at Moyles Court, arrests 255-257.
Peterborough, Earl of, cross-examines in Lord Warwick's case, ii. 77.
Peters, Hugh, trial of, i. 140-158;
pleads, 140, 141;
in Pembrokeshire, 142, 143;
escape from London with Cromwell, 143;
replies to Dr. Young, 144, 145;
consultations with Cromwell, 145, 146;
with Ireton and others at Windsor, 147, 148;
in the Painted Chamber, 149;
rode before the King into London, 149;
at the trial and execution, 150, 151;
his preachings, 152, 154;
his defence, 155, 156;
summing up and sentence, 156-158.
Phillips, Serjeant, in Raleigh's trial, i. 36, 51.
Pollexfen, defends Lord Russell, ii. 6;
prosecutes Lady Lisle, 61.
Pomfret, witness against Lord Warwick, servant at the Bagnio, ii.
96-100;
arrival of Warwick and French, 96;
and Dockwra and James, 97;
state of the swords, 96-100.
Popham, Lord Chief-Justice, i. 6, 10;
examination by, of Lord Cobham, 27.
Potter, Vincent, regicide, i. 129.
Powys, Sir Thomas, appears for Lord Warwick, ii. 123, 125.
Preston, Sir Amyas, i. 42.
Pretty, account of Hulet by, i. 161.
Raleigh, Sir Walter, trial of, i. 1-71;
position on accession of James I., 2;
overtures of, to French and Spaniards, 3, 4;
examination and arrest, 5;
indictment, 11-13;
Coke's opening, 13-23;
Cobham's examination, 23, 24;
Raleigh's answer, 25, 26;
Cobham's second examination, 26, 27;
Raleigh's answer, 27, 28;
his connection with Cobham, 29, 30;
two witnesses required, 31-33;
examinations of Watson, etc., 35;
of Raleigh, 36;
Cobham not called, 37-39, 47-49;
examinations of Raleigh, Cobham, and others, 39-41;
book against the title of the King, 41-44;
letter to Cobham, 45;
Lady Arabella Stewart, 46, 50;
Dyer's evidence, 50;
Phillip's speech, 51;
Cobham's letter to the lords, 55, 56;
to Raleigh, 56, 57;
verdict, 57;
sentence, 58-60;
life in the Tower and the Guiana expedition, 61-65;
condemnation, 65;
letter to the King, 65, 66;
to his wife, 66-69;
execution, 69, 70.
Raymund, Edmund, witness for Lord Warwick, ii. 119.
Regicides. _See_ Harrison, Thomas; Peters, Hugh; Hulet, William; and
note i. p. 129.
Rich, appointed Sheriff of London, ii. 3.
---- Col., and Peters, i. 146, 148.
Richardson, Thomas, witness against Peters, i. 150.
---- Mrs., evidence against Marson, ii. 152.
Roe, Owen, regicide, i. 129.
Rogers, William (_see_ Cowper, Spencer, trial of, ii. 139-228);
leaves London and arrives at Hertford, 218-220;
conversation at Gurrey's, 219;
summing up, 224-226;
verdict, 227.
Rumsey, witness against Lord Russell, takes message from Shaftesbury to
the conspirators, ii. 10-12, 13, 34, 37, 47, 51, 55.
Russell, Lord, trial of, ii. 3-56;
charges against, 6;
objections to jurors, 6, 7, 56;
North opens case against, 7-10;
Rumsey's evidence against, as to meetings in Sheppard's house, 10-12;
Sheppard's evidence as to the same, 12-14;
Lord Howard's evidence against, as to Shaftesbury's plot, 14-26;
and Russell's plot, 26-31;
West's evidence as to connection of with Trenchard, 32, 33;
speech of, on question of law, 33, 34;
replies thereto, 34-37;
reply of, to Rumsey's evidence, 37, 38;
evidence as to declarations by Howard, 38-42;
evidence as to character, 43, 44;
Howard's reply, 44-46;
conclusion of speech of, 46, 47;
reply by Solicitor-General, 47-50;
summing up, 50-54;
verdict and sentence, 54;
execution of, and statement by, 54-56;
reversal of attainder of, 56.
Salisbury, Earl of (_see_ Raleigh); connection with Raleigh's trial, i.
1-8;
judge in Raleigh's trial, 9;
plots revealed to, 28.
Salmon, witness against Lord Warwick; describes Coote's wounds, ii.
107.
Sandeswell, Ann, witness against the Suffolk witches, i. 232.
Savoy, Duke of, and Raleigh, i. 61.
Sawyer, Sir Robert, prosecutes Lord Russell when Attorney-General, ii.
5.
Scot, Thomas, regicide, i. 129.
Scroope, Adrian, regicide, i. 129.
Shaftesbury, Earl of, connection with Lord Russell's trial, ii. 4-8;
message of, to conspirators, 11;
connection with Howard, 17-26, 47, 48, 51, 52.
Sheppard, conspiracy at the house of, ii. 11, 47, 51;
witness as to meetings of conspirators, 13, 14.
Sherringham, Robert, witness against the Suffolk witches, i. 232.
Sidney, Col. Algernon, and Lord Russell, ii. 9;
Howard's evidence as to, 26.
Simpson, Holland, witness against Peters, i. 150.
Sloane, Sir Hans, witness for Cowper, ii. 194, 195.
Smith, Aaron, conspires with Lord Russell, ii. 10, 28, 29.
---- Abraham, watchman, witness against Hulet, i. 163, 164.
---- Jarrit, witness against Goodere; two visits of Sir John to, and
reconciliation of brothers at his house, ii. 237-246.
Soam, John, witness against the Suffolk witches, i. 231
Somers, Lord John, ii. 61.
Somerset, Duke of, and the Guiana expedition, i. 61.
---- ---- witness for Lord Russell, ii. 44.
Spencer, Mr., witness for Lord Russell, ii. 46.
Stanhope, Col., witness for Lord Warwick, ii. 117, 118.
Starkey, witness against Peters, i. 146, 149.
Stephen, Sir James, on Coke, i. 7;
on validity of Lord Russell's objection to the jury, ii. 7;
on benefit of clergy, 121, 122;
on indictments, 247.
Stephens, Ellis (_see_ Cowper, Spencer, trial of, ii. 139-228);
leaves London and arrives at Hertford, 218;
conversation at Gurrey's house, 219;
journey to Hertford, 220;
summing up, 224-226;
verdict, 227.
Stewart, Charles. _See_ Charles I. and Charles II.
---- Lady Arabella, i. 12;
accusations against Raleigh as to, 20;
Raleigh's denial, 25, 26, 29, 49, 57;
statement on behalf of, 46.
Stout, Mrs., takes proceedings for an appeal against Turner, ii. 227,
228.
---- Sarah. _See_ Cowper.
Stringer, Justice's visit to Turner, i. 207.
Stubbards, Col., and trial of Charles I., i. 150.
Stukely, Vice-Admiral, i. 62-64, 70.
Suffolk witches, i. 311-325.
_See_ Cullender, Rose; and Duny, Amy.
Sully, Duke of, ambassador to James I., i. 3.
Tasker, Major Ralph, witness against Turner, i. 145, 146.
Temple, James, regicide, i. 129.
---- Peter, regicide, i. 129.
Tench, and Charles I.'s scaffold, i. 151.
Thomlinson, Col., in charge of Charles I., i. 78.
Tichburne, Robert, regicide, i. 124, 129.
Tillotson, Dr., witness for Lord Russell, ii. 42, 43;
accompanies him to the scaffold, 54.
Toogood, witness as to admissions by Hulet, i. 160.
Treby, Lord Chief-Justice, opinion of, in Lord Warwick's case, ii. 125,
126.
Trenchard, the rising of, ii. 8, 11, 24.
Trevor, Thomas Lord, prosecutes the Earl of Warwick when
Attorney-General, ii. 65;
speech of, 122.
Tryon, witness against Turner, i. 181, 182, 187, 193.
Turner, Sir Edward, i. 127;
opens the case against Hulet, 158.
Turner, Ely, trial of, i. 169-208;
was to bring money to Fry's house, 184, 185;
examined by Sir T. Aleyn, 191;
acquitted, 203.
---- James, trial of, i. 169-208;
Aleyn's evidence, 170-180;
Turner suspected, 171;
found in possession of money, 172, 186;
account of money and jewels by, 173;
arrest by Aleyn, 174, 175;
his wife sent for money and jewels, 175;
wife's account of them, 176;
committed to Newgate, 177, 178;
his account of his money to Aleyn, 179;
Tryon's account of the burglary, 180-182;
Turner's account to Hill, 182, 183;
as to forging Tryon's will, 183, 184;
deposits money with Fry and Ball, 185, 186;
account given by, of robbery to Cole, 187;
examined by Chamberlain and Aleyn, 189, 190;
defence of, 194-200;
summing up and verdict, 202, 203;
confession by, 204;
dying speech and execution of, 205, 208.
---- John, trial of, i. 169-208;
flies from Sir T. Aleyn, 179, 180, 191;
carried money to Fry's house, 185, 192, 197, 201, 202;
acquitted, 202.
---- Mary, trial of, i. 169-208;
sent for jewels and money by Turner, 175, 176, 199;
visit to Fry's house, 186, 197;
produced money and jewels, 188;
examined by Chamberlain, 190;
acquitted, 203.
Turner, Stephen, witness against Lord Warwick, Coote's servant, ii.
107;
Coote friendly with Warwick, 108.
---- William, trial of, i. 169-208;
arrest and examination of, 192;
identified by Tryon, 193;
denial by, 201;
acquittal and confession of, 203, 204.
Vanden Anchor, witness against Turner, i. 188.
Villiers and the Guiana Expedition, i. 61.
Wade, Sir Thomas, i. 11.
Wait, Thomas, and Raleigh's trial, i. 129.
Walcot, connection with Lord Shaftesbury and Lord Howard, ii. 15,
20-26.
Walker, Sir Clement, on omissions in Charles I.'s trial, i. 93 _n._
---- Sarah, witness against Cowper, his arrival and conduct at Mrs.
Stout's, ii. 146-152;
evidence contradicted, 216, 217.
Wall, witness for Cowper, ii. 193.
Waller, Sir Hardress, i. 129.
Ward defends Lord Russell, ii. 7;
opinion of, in Lord Warwick's case when Lord Chief-Baron, 166.
Warwick and Holland, Earl of, trial of, ii. 59-135;
preliminaries, 59-64;
opening speech, 65-68;
guests leave Locket's, 70-72;
course of quarrel between Coote and French, 75-79;
the journey to Leicester Fields and the Bagnio, 82-92;
arrival and proceedings at the Bagnio, 96-101;
Warwick's defence as to the facts, 109-112;
friendship between Warwick and Coote, 107, 113-119;
capacity of French to give evidence, benefit of clergy, 200-226;
verdict, 128, 129;
sentence, 129.
Watcher, witness against Turner, i. 192.
Watson, and the 'Bye' plot, i. 4, 16, 17, 35, 40.
Weller, Daniel, witness against Goodere, ship's carpenter, i. 272-274.
Westmoreland, i. 28.
Whichcot, Sir Jeremy, witness against Peters, i. 150.
Whiteman, Colonel, witness for Lord Warwick, ii. 119.
Williams, Thomas, witness against Goodere, capture of Sir John, ii.
255-259.
Wilson, Sir Thomas, i. 64.
Windham, Wadham, i. 127.
Winwood and the Guiana Expedition, i. 61.
Witches, Suffolk, the. _See_ Cullender, Rose; and Duny, Amy.
Woodhouse, Dr., witness against Cowper, ii. 65.
Wotton, Lord, of Morley, i. 10.
Wright, Sir Nathan, prosecutes the Earl of Warwick when a serjeant, ii.
64;
speech of, 104.
Wroth, Sir Robert, i. 44.
Young, Sir Edward, opens Peters' case, i. 141.
---- Dr. William, witness against Peters, i. 141, 143, 145;
Peters' reply to, 143, 145.
---- witness for Cowper, finder of Sarah Stout's body, ii. 190-192.
Printed by T. and A. CONSTABLE, Printers to Her Majesty
at the Edinburgh University Press
TRANSCRIBERS' NOTES
Page 26: Algernone as in the original
Page 36: Abermarle as in the original
Page 53: beleive corrected to believe after "Whether upon this whole
matter you do"
Page 61: paragraph ending "their faces towards the state;" as in the
original
Page 101: 20th as in the original. Should perhaps be 30th.
Page 310: Fergusson standardised to Ferguson, as in the text
Page 313: inconsistent spelling of Nelthorp(e) as in original
Page 319: find- changed to finder in entry for Young, witness for Cowper
Footnote 12: Algernon Sidney. Year corrected from 1783 to 1683 in
"executed on 7th December 1783"
Footnote 14: Rumsey. Year corrected from 1785 to 1685 in "executed in
1785." Year corrected from 1783 to 1683 in "before, in 1783,"
Footnote 25: "became a a fellow" corrected to "became a fellow"
General : The following have been inconsistently hyphenated in the
original: ale(-)house, church(-)yard, cock(-)pit,
half(-)penny, lime(-)kilns, no(-)body, over(-)board,
sweet(-)heart, three(-)score, twelve(-)month. These have not
been standardised.
General : No attempt has been made to standardise or modernise spelling.
Corrections to punctuation have not been individually noted.
Index : Volume numbers omitted in the original have been added for
Cowper, William; Howard, Thomas; Howard, Henry; Northampton,
Lord; Suffolk Witches
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