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 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?
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?
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?
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.