On the twenty-first of November he was conveyed, under a strong guard from the Tower, to Westminster; he was brought to the bar, by virtue of a Habeas Corpus, and the record of his former conviction and attainder was at the same time removed there by Certiorari. These being read to him, the prisoner prayed that counsel might be allowed him; and named Mr. Ford and Mr. Jodrel, who were accordingly assigned to him as counsel. A few days were granted to prepare the defence, and on the twenty-fourth of the month the prisoner was again brought up; he pleaded that he was not the person named in the record, who was described as Charles Radcliffe, but maintained that he was the Earl of Derwentwater. He also requested that the trial might be put off, that two witnesses, one from Brussels, the other from St. Germains, might be summoned. This was refused. The prisoner then challenged one of the jury, but that challenge was overruled. During these proceedings the lofty, arrogant manner, and the vehement language of Mr. Radcliffe drew from his counsel the remark that he was disordered in his senses. The judge, Mr. Justice Foster, who tried the case, bore his contemptuous conduct with great forbearance. When brought into Court, to be arraigned, he would neither hold up his hand, nor plead, insisting that he was a subject of France, and appealing to the testimony of the Neapolitan Minister, who happened to be in Court. But not one of these objections was allowed, and the trial proceeded.
No fresh indictment was framed, and the point at issue related merely to the identity of the prisoner. The award in Mr. Radcliffe's case was agreeable to the precedent in the case of Sir Walter Raleigh, and execution was awarded on his former offence, judgment not being again pronounced, having been given on the former arraignment. This mode of proceeding might be law, but no one after the lapse of thirty years, and the frequent communications of the prisoner with the English Government, can regard such a proceeding as justice: and, as in the case of Sir Walter Raleigh, it brought odium upon the memory of James the First, so it excited in the reign of George the Second almost universal commiseration for the sufferer, and disgust at the course adopted.
The evidence in this case was far from being such as would be accepted in the present day.
Two Northumberland men were sworn to the fact that the prisoner at the bar was the younger brother of the Earl of Derwentwater, and that they had seen him march out from Hexham, in Northumberland, at the head of five hundred of Lord Derwentwater's tenantry; they recognized him, as they declared, by a scar on his face; they had been to see him in the Tower, to refresh their memories, and could swear to him, as Charles Radcliffe, brother of the Earl of Derwentwater. After this deposition, Roger Downs, a person who had acted in the capacity of barber to the State prisoners, in 1715, was called.
To him Mr. Radcliffe thus addressed himself:[416] "I hope, sir, you have some conscience; you are now sworn, and take heed what you say."
To this Downs replied; "I shall speak nothing but the truth. I well remember that I was appointed close shaver at Newgate, in the year 1715 and 1716, when the rebels were confined there, and shaved all those who were close confined."
The Counsel then asked, "Pray, sir, did you shave Charles Radcliffe, Esquire, the late Earl of Derwentwater's brother, who was confined in Newgate for being concerned in the rebellion in the year 1715, or who else did you shave of the said rebels at that time? And pray, sir, who was keeper, or who were turnkeys of the said gaol of Newgate."
The answer of Downs was couched in these words, "William Pitt, Esq. was head keeper, and Mr. Rouse, and Mr. Revel, were head turnkeys, who appointed my master to be barber, to shave the prisoners; and I attended in my master's stead, and used to go daily to wait on the rebel prisoners, and I particularly remember that I shaved Basil Hamilton, a reputed nephew of the late Duke of Hamilton, and Charles Radcliffe, Esq., brother to the late Earl of Derwentwater, who I perfectly remember were chums, or companions, in one room, in the press-yard, in Newgate, that looked into the garden of the College of Physicians, and for which service I was always very well paid."
The Counsel then desired him to look at the prisoner and inform the Court if that gentleman were the very same Charles Radcliffe that he shaved in Newgate, at the aforesaid time, and who after escaped out of Newgate.
To this Downs returned the following reply: "I cannot on my oath say he is."