Part 15 (1/2)

_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 pa.s.sages 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 lords.h.i.+ps 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 p.r.o.nounced 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 p.r.o.nounced 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 lords.h.i.+p 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 lords.h.i.+ps to acquaint you that you cannot have the benefit of that statute twice; therefore, I am likewise directed by their lords.h.i.+ps 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 circ.u.mstances 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 lords.h.i.+p is now to be discharged.

LORD HIGH STEWARD--Is it your lords.h.i.+ps' 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 lords.h.i.+ps' great honour and justice to me; but I crave leave to a.s.sure your lords.h.i.+ps, 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 circ.u.mstances, as may expose me to the giving your lords.h.i.+ps 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 pa.s.sages out of the latter work, premising only that there seems to be some faint relations.h.i.+p between Captain Macartney, Lord Mohun's second in his duel with Lord Castlewood, and the Lord Macartney who afterwards a.s.sisted 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 c.o.c.kpit, Whitehall.