Part 9

Then the Lord High Steward reckoned up the number of peers present, and the opinions that were given, and announced that there were 93 present, and that they had all acquitted lord Warwick of murder, but had found him guilty of manslaughter. Lord Warwick was then called in, the judgment was announced to him, and he was asked what he had to say why judgment of death should not be pronounced against him according to law. And he claimed the benefit of his peerage, under the statute of Edward the 6th.

LORD HIGH STEWARD--My lord, your lordship has demanded the benefit of your peerage upon the statute of Edward the 6th, and you must have it by law; but I am directed by their lordships to acquaint you that you cannot have the benefit of that statute twice; therefore, I am likewise directed by their lordships to say that they hope you will take a more than ordinary care of your behaviour for the future, that so you may never hereafter fall into such unfortunate circumstances as you have been now under; my lords hope this will be so sensible a warning, that nothing of this kind will ever happen to you again; your lordship is now to be discharged.

LORD HIGH STEWARD--Is it your lordships' pleasure to adjourn to the House of Lords?

LORDS--Ay, Ay.

LORD HIGH STEWARD--This House is adjourned to the House of Lords.

Then the lords went in procession, in the same order that they came into the court.

The next day Lord Mohun was tried on a similar indictment before the same court. And most of the same witnesses having given the same evidence again, he was acquitted and discharged. He then expressed himself thus:

LORD MOHUN--My lords, I do not know which way to express my great thankfulness and acknowledgment of your lordships' great honour and justice to me; but I crave leave to assure your lordships, that I will endeavour to make it the business of the future part of my life, so to behave myself in my conversation in the world, as to avoid all things that may bring me under any such circumstances, as may expose me to the giving your lordships any trouble of this nature for the future.

Then proclamation was made dissolving the Commission, and the Court adjourned.

* * * * *

As is well known, the duel described in this trial is the original of that described in _Esmond_ between Lord Castlewood and Lord Mohun; it may therefore be of interest to transcribe a few passages out of the latter work, premising only that there seems to be some faint relationship between Captain Macartney, Lord Mohun's second in his duel with Lord Castlewood, and the Lord Macartney who afterwards assisted him in the same capacity in his final meeting with the Duke of Hamilton. Lord Castlewood, as will be remembered, had come up to London to fight Lord Mohun, really on account of his relations with Lady Castlewood, nominally as the result of a quarrel at cards, which it was arranged should have all the appearance of taking place. Lord Castlewood, Jack Westbury, and Harry Esmond all meet together at the 'Trumpet,' in the Cockpit, Whitehall.

When we had drunk a couple of bottles of sack, a coach was called, and the three gentlemen went to the Duke's Playhouse, as agreed. The play was one of Mr. Wycherley's--_Love in a Wood_. Harry Esmond has thought of that play ever since with a kind of terror, and of Mrs. Bracegirdle, the actress who performed the girl's part in the comedy. She was disguised as a page, and came and stood before the gentlemen as they sat on the stage, and looked over her shoulder with a pair of arch black eyes, and laughed at my lord, and asked what ailed the gentleman from the country, and had he had bad news from Bullock fair?

Between the acts of the play the gentlemen crossed over and conversed freely. There were two of Lord Mohun's party, Captain Macartney, in a military habit, and a gentleman in a suit of blue velvet and silver, in a fair periwig with a rich fall of point of Venice lace--my Lord the Earl of Warwick and Holland. My lord had a paper of oranges, which he ate, and offered to the actresses, joking with them. And Mrs. Bracegirdle, when my lord Mohun said something rude, turned on him, and asked him what he did there, and whether he and his friends had come to stab anybody else, as they did poor Will Mountford? My lord's dark face grew darker at this taunt, and wore a mischievous, fatal look. They that saw it remembered it, and said so afterward.

When the play was ended the two parties joined company; and my Lord Castlewood then proposed that they should go to a tavern and sup. Lockit's, the 'Greyhound,' in Charing Cross was the house selected. All three marched together that way, the three lords going a-head.'

At the 'Greyhound' they play cards, and Esmond tries in vain to quarrel with Mohun himself.

My Lord Mohun presently snuffed a candle. It was when the drawers brought in fresh bottles and glasses and were in the room--on which my Lord Viscount said, 'The Deuce take you, Mohun, how damned awkward you are. Light the candle, you drawer.'

'Damned awkward is a damned awkward expression, my lord,' says the other. 'Town gentlemen don't use such words--or ask pardon if they do.'

'I'm a country gentleman,' says my Lord Viscount.

'I see it by your manner,' says my Lord Mohun. 'No man shall say damned awkward to me.'

'I fling the words in your face, my lord,' says the other; 'shall I send the cards too?'

'Gentlemen, gentlemen! before the servants?' cry out Colonel Westbury and my Lord Warwick in a breath. The drawers go out of the room hastily. They tell the people below of the quarrel upstairs.

'Enough has been said,' says Colonel Westbury. 'Will your lordships meet to-morrow morning?'

'Will my Lord Castlewood withdraw his words?' asks the Earl of Warwick.

'My lord Castlewood will be ---- first,' says Colonel Westbury.

'Then we have nothing for it. Take notice, gentlemen, there have been outrageous words--reparation asked and refused.'

'And refused,' says my Lord Castlewood, putting on his hat. 'Where shall the meeting be? and when?'

'Since my lord refuses me satisfaction, which I deeply regret, there is no time so good as now,' says my Lord Mohun. 'Let us have chairs, and go to Leicester Field.'

'Are your lordship and I to have the honour of exchanging a pass or two?' says Colonel Westbury, with a low bow to my Lord of Warwick and Holland.

'It is an honour for me,' says my lord, with a profound congée, 'to be matched with a gentleman who has been at Mons and Namur.'

'Will your Reverence permit me to give you a lesson?' says the captain.

'Nay, nay, gentlemen, two on a side are plenty,' says Harry's patron. 'Spare the boy, Captain Macartney,' and he shook Harry's hand for the last time, save one, in his life.

At the bar of the tavern all the gentlemen stopped, and my Lord Viscount said, laughing, to the bar-woman, that those cards set people sadly a-quarrelling; but that the dispute was over now, and the parties were all going away to my Lord Mohun's house, in Bow Street, to drink a bottle more before going to bed.

A half-dozen of chairs were now called, and the six gentlemen stepping into them, the word was privately given to the chairmen to go to Leicester Field, where the gentlemen were set down opposite the 'Standard Tavern.' It was midnight, and the town was a-bed by this time, and only a few lights in the windows of the houses; but the night was bright enough for the unhappy purpose which the disputants came about; and so all six entered into that fatal square, the chairmen standing without the railing and keeping the gate, lest any persons should disturb the meeting.

All that happened there hath been matter of public notoriety, and is recorded, for warning to lawless men, in the annals of our country. After being engaged for not more than a couple of minutes, as Harry Esmond thought (though being occupied at the time with his own adversary's point, which was active, he may not have taken a good note of time) a cry from the chairmen without, who were smoking their pipes, and leaning over the railings of the field as they watched the dim combat within, announced that some catastrophe had happened, which caused Esmond to drop his sword and look round, at which moment his enemy wounded him in the right hand. But the young man did not heed this hurt much, and ran up to the place where he saw his dear master was down.

My Lord Mohun was standing over him.

'Are you much hurt, Frank?' he asked in a hollow voice.

'I believe I'm a dead man,' my lord said from the ground.

'No, no, not so,' says the other; 'and I call God to witness, Frank Esmond, that I would have asked your pardon, had you but given me a chance. In--in the first cause of our falling out, I swear that no one was to blame but me, and--and that my lady----'

'Hush!' says my poor Lord Viscount, lifting himself on his elbow and speaking faintly. 'Twas a dispute about the cards--the cursed cards. Harry, my boy, are you wounded too? God help thee! I loved thee, Harry, and thou must watch over my little Frank--and--and carry this little heart to my wife.'

And here my dear lord felt in his breast for a locket he wore there, and, in the act, fell back fainting.

We were all at this terrified, thinking him dead; but Esmond and Colonel Westbury bade the chairmen come into the field; and so my lord was carried to one Mr. Aimes, a surgeon, in Long Acre, who kept a bath, and there the house was wakened up, and the victim of this quarrel carried in.

FOOTNOTES:

[31] Charles, fifth Baron Mohun (1675?-1712), was the eldest son of the fourth baron, who died from a wound received in a duel when his son was about two years old. He fought his first duel in 1692, breaking out of his lodgings, where he was confined in consequence of a quarrel over dice, for the purpose, with the assistance of the Earl of Warwick of the present case, the grandson of the Lord Holland of the Civil War. This encounter ended in both combatants being disarmed. Two days later he abetted in the murder of Mountfort, an actor. One Captain Hill was in love with Mrs. Bracegirdle, the famous actress, and supposed that he had cause to be jealous of the attentions she received from Mountfort, the equally eminent actor. Accordingly Hill and Mohun formed a plan (estimated to cost £50 in all) to carry off the lady as she came out of the theatre: and providing themselves with a coach-and-six and a body of soldiers set out on the enterprise. They missed Mrs. Bracegirdle at the theatre, but found her by chance coming out of a house in Drury Lane where she had supped. The attempt to carry her off in the coach failed, owing to the vigorous resistance made by her friends. Hill and Mohun, however, were allowed to escort her to her lodgings in Howard Street, where they saw her safely home. Mountfort lived in Norfolk Street, at the bottom of Howard Street; and as he was passing down the latter some two hours later, he was accosted by Mohun in a more or less friendly way; but while they were talking together, he was attacked and killed by Hill, who did not give him time to draw his sword. Hill fled, but Mohun was tried by his peers in Westminster Hall, January 1692-93. The trial excited great interest partly owing to the youth of the prisoner, and on a question being raised as to the degree of complicity necessary to constitute his guilt, he was acquitted. A report of the trial will be found in _State Trials_, xii. 950. There are also some picturesque references to it in Chapter xix. of Macaulay's _History_. Mohun fought another duel in 1694, served for two years in Flanders, returned to England, and fought a duel with Captain Bingham in St. James's Park, which was interrupted by the sentries. The same year he was present at the death of Captain Hill, in the Rummer Tavern. The present case occurred in 1698, and seems to have closed his career as a rake. He was sent under Lord Macclesfield on a mission to present the Electress-Dowager Sophia with a copy of the Act of Succession, and he frequently took part in debates in the House of Lords. After Lord Macclesfield's death he became entangled in a long course of litigation with the Duke of Hamilton; and on their meeting in Master's Chambers, remarks passed between them which led to a duel, when both were killed. The Tories suggested that the Whigs had arranged the duel in order to get rid of Mohun because they were tired of him, and Hamilton, because they wanted to prevent his projected embassy to France.

[32] John Lord Somers (1651-1716) was born at Whiteladies, near Worcester, educated at Trinity College, Oxford, and called in 1676. He appeared as junior counsel in the trial of the Seven Bishops, at the instance of Pollexfen (see vol. i. p. 241), and took a conspicuous part in the settlement of the monarchy after the Revolution, being an influential member of the Committee which drafted the Declaration of Rights. He became Solicitor-General in 1689, and Attorney-General in 1692, in which capacity it is curious to notice that he conducted the prosecution of Lord Mohun for the murder of Mountfort (see _ante_, p. 60). He became William III.'s first Lord Keeper in 1692-3, and Lord Chancellor in 1697. During all this time he was one of William's most trusted advisers, and was consulted by him on the most confidential questions relating to foreign policy. He was also familiar with the leading literary and scientific men of his time, being responsible for Addison's pension, and receiving the dedication of the _Tale of a Tub_ from Swift. He also conferred favours on Rymer and Madox. He resigned the Great Seal in 1700 after a motion for his perpetual exclusion from the presence of the King had been defeated by a small majority in the House of Commons; having already lost the King's confidence by the position he adopted in regard to William's propositions for a standing army, and attracted the hostility of the country partly by his opposition to the bill for the resumption of the grants of forfeited Irish estates. He played a conspicuous part in the reign of Queen Anne as the head of the Whig junto formed at the beginning of that reign, but never resumed office.

[33] Sir Nathan Wright (1653-1721), born of an Essex family, was educated at Emmanuel College, and was called in 1677. He was junior counsel for the Crown in the trial of the Seven Bishops, and opened the pleadings. He became Serjeant in 1692. On the retirement of Lord Somers in 1700, a difficulty was found in providing a successor, and eventually the post of Lord Chancellor was offered to, and accepted by, Wright. He enjoyed no reputation, good or bad, as a judge, except that he was very slow, and generally considered unfit for the place. After holding office for five years he was dismissed on the accession to power by the Whigs in 1705. Speaking of his appointment as Lord Chancellor, Lord Campbell says, 'The occasional occurrence of such elevations seems wisely contrived by Providence to humble the vanity of those who succeed in public life, and to soften the mortification of those who fail.'

[34] Thomas Lord Trevor (1659?-1730) was the son of a Secretary of State of Charles II. He was called in 1680, became a bencher in 1689, Solicitor-General in 1692, Attorney-General in 1695. He refused to succeed Lord Somers in 1700; but in 1701 succeeded Sir George Treby as Chief-Justice of the Common Pleas. He was re-appointed by Queen Anne, and was one of the twelve peers created by her in 1711 to create a majority in the House of Lords. He was removed from office in 1714 on the accession of George I.; but leaving the Tory party, which he had joined in Anne's reign, became Lord Privy Seal in 1726, and President of the Council in 1730, but died six weeks afterwards. He enjoyed a reputation as a good judge; but is chiefly remembered for his proper conduct of Crown prosecutions as Attorney-General after the Revolution.

[35] Benefit of clergy was originally the right of the clergy to be exempt from the jurisdiction of the lay courts, and to be handed over to the ordinary to make 'purgation.' This the accused clerk did by swearing to his own innocence and producing twelve compurgators who swore to the same effect. He was then 'usually acquitted' by a jury of twelve clerks; but otherwise he was degraded and put to penance. The right itself was gradually restricted: partly by a construction of the Statute of Westminster the First (1275), by which it was held to be necessary that the clerk should be indicted before he could claim his benefit; partly by the practice prevailing in the time of Henry VI. that he must first be convicted. Meanwhile its scope had been largely increased by its extension in 1360 to all lay clerks, who were taken to mean persons capable of reading. The law, however, which was applicable to the present case depended on two statutes, 4 Henry VII., c. 13, and 18 Elizabeth, c. 7; by the former any person allowed his clergy was to be branded, and was not to be allowed it again unless he was actually in orders; by the latter purgation was abolished, and any person taking benefit of clergy was to be discharged from prison subject to the power of the judge to imprison him for a year. By a statute of Edward _VI._ also, a peer ('though he cannot read') was allowed a privilege equivalent to benefit of clergy, but was not to be branded.

A certain number of offences were excluded from benefit of clergy during earlier times, and a great number during the eighteenth century, at the beginning of which the privilege was extended to all prisoners. Finally, the system was abolished in 1827. How this system, occupying as it did an important position in the criminal procedure of this country till a comparatively modern date, impresses a lawyer of the present day, may best be described in the words of Sir James Stephen:--'Of this branch of the law, Blackstone characteristically remarks that the English legislature "in the course of a long and laborious process, extracted by noble alchemy rich medicines out of poisonous ingredients." According to our modern views it would be more correct to say that the rule and the exception were in their origin equally crude and barbarous, that by a long series of awkward and intricate changes they were at last worked into a system which was abolished in a manner as clumsy as that in which it was constructed' (_History of the Criminal Law_, vol. i. p. 458).... 'The result of this was to bring about, for a great length of time, a state of things which must have reduced the administration of justice to a sort of farce. Till 1487 any one who knew how to read might commit murder as often as he pleased, with no other result, than that of being delivered to the ordinary to make his purgation, with the chance of being delivered to him _absque purgatione_. That this should have been the law for several centuries seems hardly credible, but there is no doubt that it was. Even after 1487, a man who could read could commit murder once with no other punishment than that of having M. branded on the brawn of his left thumb, and if he was a clerk in orders he could, till 1547, commit any number of murders apparently without being branded more than once' (_Ibid._, vol. i. p. 462).

[36] Convicted felons were incompetent as witnesses till the passing of Lord Denman's Act in 1843.

[37] Sir John Hawles (1645-1716) was born in Salisbury of a Dorsetshire family. He was educated at Winchester and Queen's College, Oxford. In 1689 he sat in the House of Commons for Old Sarum; he succeeded Sir Thomas Trevor as Solicitor-General in 1695 and so remained till 1702. He afterwards represented various western boroughs in Parliament, most of them Cornish. He was one of the managers of Sacheverell's impeachment in 1710. He died at Upwinborne.

[38] Sir Thomas Powys (1649-1719), of a Shropshire family, was educated at Shrewsbury, and was called in 1673. He became Solicitor-General in 1686, and as a supporter of the dispensing power became Attorney-General in 1687. As such he conducted the prosecution of the Seven Bishops. He frequently appears for the defence in State Trials during the reign of William III. He represented Ludlow in Parliament from 1701 to 1713, was made a Serjeant at the beginning of Anne's reign, and a Judge of the Queen's Bench in 1713. He was, however, removed from the bench on the accession of George I.

[39] To a modern practitioner to whom benefit of clergy is merely an archæological puzzle, it would seem that the proper argument was that the imprisonment was a punishment, and that as French had not been imprisoned he was quit of the law; but two centuries make a great deal of difference in arguments on points of law.

[40] Sir George Treby (1644-1700), the son of a Devon gentleman, entered Exeter College in 1661, and was called in 1671. He represented his native town of Plympton in the House of Commons in both Parliaments in 1679, and was a manager in the impeachment of Lord Stafford. He succeeded Jeffreys as Recorder of London in 1680, but was removed after the success of the _Quo Warranto_ proceedings. He sat in the Oxford Parliament of 1681, and resumed his seat as Recorder after the arrival of the Prince of Orange. He afterwards re-entered Parliament, succeeded Pollexfen as Solicitor-General in 1689, as Attorney-General in the same year, and as Lord Chief-Justice of the Common Pleas in 1692.

[41] Edward Ward was called in 1670, and was engaged to assist Lord Russell in his trial. He was a candidate for the office of Sheriff of London in the famous election of 1683 (_ante_, pp. 3, 15). He refused a judgeship at the Revolution; became Attorney-General in 1693, and Chief Baron in 1695. He died in 1714. He was an ancestor of the late Mr. G. Ward Hunt.

[42] Sir Edward Nevill was called in 1658. He was knighted in 1681, on presenting an address to Charles II. as Recorder of Bath. He became Serjeant in 1684, and a Baron of the Exchequer in 1685. He was dismissed six months afterwards for refusing to support the royal assumption of the dispensing power. Fosse gives a striking extract from his evidence before Parliament in 1689, to show how the power of the Executive was actually brought to bear on the Stewart judges. He was restored to his office after the Revolution, removed to the Common Pleas in 1691, and died in 1705.

SPENCER COWPER AND OTHERS

Spencer Cowper,[43] a barrister; Ellis Stephens and William Rogers, attorneys; and John Marston, a scrivener, were indicted at the Hertford Summer Assizes in 1699 for the murder of Sarah Stout, on the 13th of the previous March. They were tried at the same Assizes, before Baron Hatsell,[44] on the 16th of July.

The indictment alleged that they had murdered Sarah Stout by strangling her, and had then thrown her body into the Priory River to conceal the body. To this, all the prisoners pleaded Not Guilty.

_Jones_ appeared for the prosecution; Cowper defended himself, and practically the other prisoners as well.

The prisoners agreed that Cowper's challenges should be taken to be the challenges of all of them; and enough jurors were then challenged to exhaust the panel. Accordingly, after some discussion, Jones was called upon to show cause for his challenges.

CLERK OF ARRAIGNS--Call Daniel Clarke.