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 circ.u.mstances 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 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 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 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 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 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 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 a.s.sure 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 circ.u.mstances, 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 pa.s.sages 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 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.
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 gla.s.ses and were in the room--on which my Lord Viscount said, "The Deuce take you, Mohun, how d.a.m.ned awkward you are. Light the candle, you drawer."
"d.a.m.ned awkward is a d.a.m.ned 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 d.a.m.ned 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 pa.s.s 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 congee, "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.