Part 8

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.