Heaven to witness, that I speak it with charity to your souls, and with great sorrow and grief in my own heart, to see men that might have made themselves happy, draw upon themselves so great a ruin. But since you have been so fairly heard, so fairly tried and convicted, there is but little more to be said; for I must tell you, because it may not be thought that you had not free liberty to make your full defence, though that gentleman (speaking to Ireland) seemed to be surprized, he had a kind sister, that took care to bring his witnesses; I am so far from blaming her for it, that I do commend her, it was the effect of her good nature, and deserves commendation; but speak to this purpose, to shew that there was no surprize upon him, nor his life taken away by any such thing; for he had a greater favour shewed to him than is usually shewn to such of fenders.

And having thus said to you myself, we do also require him whose duty it is to attend in such cases, nay, I do command him in the name of the court, that he attend upon you to give you all the comfortable assistance that he can for the advantage of your future state: And not only so, but we will certainly take care, that if you will have any others come to you they shall. I would not he mistaken, I do not mean any of your priests and Jesuits; but if you will have the assistance of any Protestant divines, they shall not be denied you. And I hope God Almighty will please to give you pardon in another world, though you have offended beyond hopes of any in this. I once more assure you, all I have said is in perfect charity. 1 pray God forgive you for what you have done. And so there remains now only for me to pronounce that sentence which by the law of the land the court is required to do against persons convicted of that offence which you are convicted of.

This court doth therefore award, "That you, the prisoners at the bar, be conveyed from hence to the place from whence you came, and from thepce that you be drawn to the place of execution upon hurdles, that there you be se verally hanged by the neck, that you be cut down alive, that your privy members be cut off, and your bowels taken out, and burnt in your view, that your heads be severed from your bodies, that your bodies be divided into quarters, and those quarters be disposed of at the king's pleasure: And the God of infinite mercy be merciful to your souls."

Then the prisoners were conveyed back to the Gaol by the keeper of the Gaol, according to custom; and the commission was called over, and the prisoners taken order for according to law. And the court adjourned by proglamation thus:

hall, London, on Friday the 10th day of Ja-
nuary next, at seven of the clock in the morn-
ing. And all manner of persons at this ses-
sions of Oyer and Terminer, and gaol-deliverey
of Newgate, bolden for the city of London and
county of Middlesex, may depart hence for
this time, and give their attendance here again
on Wednesday, the 15th day of January, at
seven of the clock in the morning. God save
the king.
And then the court broke up.

William Ireland and John Grove were drawn On Friday the 24th of January following, from Newgate on a hurdle to Tyburn, where they were executed according to their sentence.

Mr. Ireland made this following Speech: "We come hither, as on the last theatre of the world, and do therefore conceive we are obliged to speak. First then, we do confess, that we pardon all and every one whatsoever, that have any interest, concern, or hand in our death. Secondly, we do publicly profess and acknowledge, that we are here obliged, if we were guilty ourselves of any treason, to declare it; and that, if we knew any person faulty therein (although he were our father) we would detect and discover him; and as for ourselves, we would beg a thousand and a thousand pardons, both of God and man: But seeing we cannot be believed, we must beg leave to commit ourselves to the mercy of Almighty God, and hope to find pardon of him through Christ. As for my own part, having been twenty years in the Low Countries, and then coming over in June was twelvemonth, I had returned again, had not I been hindered by a fit of sickness. On the 3d of August last I took a journey into Staffordshire, and did not come back to town before the 14th of September, as many can witness for a hundred and more saw me in Staffordshire; therefore, how I should in this time be acting here treasonable stratagems, I do not well know or understand."

:

Here Mr. Sheriff advertised the prisoner, he would do well to make better use of his time, than to spend it in such-like expressions, for nobody would believe him; not that they thought much of their time, for they would stay; but such kind of words did arraign the proceedings of the court, by which they were tried.

Wherefore Mr. Ireland concluded, and said; "I do here beg of God Almighty to shower down a thousand and a thousand blessings upon his majesty, on her sacred majesty, on the duke of York, and all the royal family, and also on the whole kingdom. As for those catholics that are here, we desire their prayers for a happy passage into a better world, and that he would Cl. of Cr. Crier, make proclamation. be inerciful to all christian souls. And as for Crier. O Yes, O Yes, O Yes! All manner all our enemies, we earnesty desire that God of persons that have any thing more to do at would pardon them again and again, for we this general sessions of the peace holden for pardon them heartily, from the bottom of our the city of London, may depart hence for this hearts; and so I beseech all good people to ume, and give their attendance at the Guild-pray for us and with us."

May 25, the king sent a message to the House, by Lord Russel, to let them know, that The execution of Thomas Pickering was respi-Pickering, and that the law should pass upon he would comply with their request concerning ted for so long a time, that it occasioned an Address of the House of Commons, Aprii 27, 1679, "That his majesty would be pleased to order the execution of one Pickering a prisoner in Newgate, and of divers priests and Jesuits, who had been condemned by the judges at the Old Bailey and in the several circuits, but did remain as yet unexecuted, to the great emboldening of such offenders, in case they should escape without due punishment." To which the king returned this answer: "Gentlemen, I have always been tender in matters of blood, which my subjects have no reason to take exceptions at; But this

246. The Trial of the Lord CORNWALLIS, before the Lords* at Westminster, for the Murder of Robert Clerk: 30 CHARLES II. A. D. 1678.†

peers of Charles lord Cornwallis, which by commandment of the Lord High Steward of England are summoned to appear this day, and to be present in Court, answer to your names, as you are called, every one upon pain and peril as will fall thereon.

Then the Pannel was called over; the number of peers summoned were 35, in order as followeth :

Thomas Earl of Danby, Lord High Treasurer of England, &c.

All that appeared, answered to the call, standing up bare.

Then my Lord High Steward made a speech to the prisoner at the bar thus:

Lord High Steward. "My lord Cornwallis, The violation of the king's peace, in the chief sanctuary of it, his own royal palace, and in so high a manner as by the death of one of his subjects, is a matter that must be accounted for. And that it may be so, it hath pleased the king to command this high and honourable court to assemble, in order to a strict and impartial enquiry.

nesses say against you without interruption, and reserve what you have to say for yourself, till it shall come to your turn to make your defence, of which I shall be sure to give you nor tice; and when the time comes, assure yourself you shall be heard, not only with patience, but with candour too.

"And then what judgment soever my lords will give you, yourself will (and all the world) be forced to acknowledge the justice and equity of their judgment, and the righteousness of all their lordships proceedings."

Cl. Cr. How wilt thou be tried?
Ld. Corn. By God and my peers.
Then my Lord High Steward addressed him-
self to the Lords thus:

"The wisdom of the law hath therefore styled it the king's peace, because it is his au- L. H. Stew." My Lords, Your lordships thority that commands it, it is his justice that have here a member before you of your noble secures it, it is he on whom men do rely for the body, exposed to the shame of a public arraignsafety of their liberties and their lives; in himment, and (which to a man of honour is much they trust that a severe account shall be taken of all the violences and injuries that are offered to them, and they that trust in the king can never be deceived.

"It is your lordship's great unhappiness at this time to stand prisoner at the bar, under the weight of no less a charge than an Iudictment of murder; and it is not to be wondered at, if so great a misfortune as this be attended with some kind of confusion of face; when a man sees himself become a spectacle of misery in so great a presence, and before so noble and so illustrious an assembly. But be not yet dismayed, my lord, for all this; let not the fears and terrors of justice so amaze and surprize you, as to betray those succours that your reason would afford you, or to disarm you of those belps which good discretion may administer, and which are now extremely necessary.

"It is indeed a dreadful thing to fall into the hands of justice, where the law is the rule, and a severe and inflexible measure both of life and death. But yet it ought to be some comfort to your lordship, that you are now to be tried by my lords your peers; and that now you see the scales of justice are held by such noble hands, you may be confident they will put into them all the grains of allowance, either justice or honour will bear.

less) to the hazard both of his life and estate. All that he hath, and ever hopes to have, his wealth, his fame, his posterity: all that is valuable to him in this world, entirely depends on your lordships judicature, who are now his peers, and on whom he doth freely put himself.

"My Lords, the privilege of this kind of trial and judicature, is a part of the true greatness of the English nobility: It is an eminent and an illustrious privilege. It is a solid point of honour and dignity. It is a privilege that no neighbour nation ever had, and a privi lege this nation never was without.

"It is not a privilege created by the great Charter, but confessed and acknowledged by it. They look but a little way that find this in the steps of the Norman conquest; for it is to be found even in the footsteps of the Saxon Monarchy, when Godwin earl of Kent was tried by earls and barons. And it is no improbable conjecture of theirs, who do think the wisdom of this Constitution was taken from that law amongst the Romans, whereby it was made unlawful for any man to sit upon a senator, that was not himself of the same order; a privilege, that (as learned civilians tell us) continued with them during the reign of many of the Roman emperors. But, my Lords, as "Hearken therefore to your indictment with this is a privilege as ancient as Monarchy, so quietness and attention; observe what the wit-we have found by many old experiences, that it cannot be taken away without the dissolution of that government: Therefore this is one of those many ties by which the interest of nobility, as well as their duty, have obliged them to the service of the king.

As to striking in the palace, &c. See the Cases of sir Edmund Knevet, ante, vol. 1, p. 443, of the earl of Devonshire, . D. 1687; and of lord Thanet and Mr. Ferguson, A. D. 1791, post. See also East's Pleas of the Crown, c. 8, sect. 3.

"In the exercise of this privilege at this time; I know your lordships will weigh the

lordships to try, and I shall very shortly state the matter of fact, which we shall prove, and then let the evidence be offered to you. We do not pretend, my Lords, neither doth the Indictment lay it, that this great offence was committed by the hand of my lord Cornwallis.

For I know your lordships have observed the Indictment, by which it is alledged, that the hand of Mr. Gerrard did the fact: but, my Lords, if we shall make it out that my lord Cornwallis did concur to this act, and had in himself at that time an intent to be a murderer, then it will be declared by his grace, my Lord High Steward, and my Lords the judges, that though his hand did it not, yet he is equally guilty as if it had.

fact with all the circumstances, whereby it is creed, that whoso sheddeth man's blood by to receive its true and its proper doom. Your man shall his blood be shed. Whether this lordships are too just to let pity make an abate-noble lord be guilty of it, remains upon your ment for the crime, and too wise to let rhetoric make any improvement of it: This only will be necessary to be observed by all your lordships, that the fouler the crime is, the clearer and the plainer ought the proof of it to be. There is no other good reason can be given, why the law refuseth to allow the prisoner at the bar counsel in matter of fact, when his life is concerned, but only this, because the evidence by which he is condemned ought to be so very evident and so plain, that all the counsel in the world should not be able to answer upon it: Upon this ground it is, that the law hath trusted your lordships with the trial of your fellow peers; no trust can be more nobly lodged, nor no judicature had ever more true submission made to it: therefore it would be in me some want of respect to this august and noble assembly, should I go about to put your lordships in mind of your duty: no doubt you will observe the evidence carefully, weigh it dili-ing, between the hours of one and two, came gently, and when that is done, it is impossible but the judgment you will give must be right and honourable and worthy of so wise and so great a body. Therefore I will not detain your lordships any longer from hearing the evidence that is ready to be offered unto you."

Cl. of Cr. Make Proclamation.

Serj. O yes! If any will give evidence for our sovereign lord the king, against Charles lord Cornwallis, prisoner at the bar, let him come forth and he shall be heard; for the prisoner stands at the bar upon his deliverance.

The Indictment was again read to the peers. Serjeant Maynard. May it please your grace, my Lord High Steward of England, and this great and noble assembly; the prisoner at the bar, Charles lord Cornwallis, standeth indicted of a great crime, that he, together with Charles Gerrard and Edward Bourne, not having in his heart the fear of God, but instigated by the suggestions of the Devil, the 18th of May last, did feloniously and of his malice forethought, assault one Robert Clerk in Whitehall, and that Mr. Gerrard took him up in his arms, flung him down, and broke his neck, of which he instantly died. To this he hath pleaded Not Guilty. It lies upon us who are counsel for the king, in this case to prosecute it, and prove it to you.

Mr. Attorney General, (sir William Jones), May it please your grace, my Lord High Steward of England, and my Lords summoned for the trial of the prisoner at the bar: This noble lord stands indicted for murder; an offence, my lord, which is the first and greatest that is forbidden by the second table, and an offence of that nature, that the law of God hath by a most peremptory sentence condemned and de

See 3 Inst. 137, 4 Blackstone's Comm. $55, 356. See too Don Pantaleon Sa's Case, ante, vol. 5, p. 466, and the Note.

Now, to make out the charge against him, our evidence will be shortly thus:

On the 18th of May last, early in the morn

down two gentlemen with three footmen be hind them, out of the gallery at Whitehall, by the stairs that lead down to the park: I call them two gentlemen, because it was not then discovered who they were, or of what quality; but your lordships will perceive, by the course of the evidence, they were my Lord Cornwallis and Mr. Gerrard, coming down at that unseasonable hour. The first question they asked the centinel (who watched at the foot of the stairs), was the hour of the night; and from him had account that it was so much.

The prisoner and Mr. Gerrard were somewhat distempered with drink, and made him a reply that he lyed, with great oaths accompanying it. At that time they did no more but go by him into the park, where after they had continued by the space of an hour, back they returned to the stairs, and the centinel demanding, according to his duty, who came there? they answered him in very obscene and uncivil language, and threatened they would kill the centinel, who only did his duty in enquiring who came by him at that time of night. And we shall make it appear, they were in a kind of contention among themselves who should kill him; for as I am informed, (I know if it be not proved, your lordships will observe it) one desired, Pray let me kill him; and the other desired, Pray let me kill him; and threatened no less than to run him through.

My Lords, the centinel being of good resolution, was not affrighted from his place, but kept them off; and when they saw they could not win upon the centinel that way, one of them delivered away his sword, which he held in his

As for a drunkard, who is voluntarius dæmon" [or demens] " he hath, as hath been said, no privilege thereby; but what hurt or ill soever he doth, his drunkenness doth aggravate it." Co. Littl. 247, &c. See too, Purchase's Case, ▲. D. 1710, infra.