these are only to be imposed upon silly men, not upon men of conscience and understanding, And I pray God, as was said lately by a learned gentleman whom we all know, that all Protestants may be as safe from the force of your daggers, as they are from those of your arguments; for I dare say, that you could sooner murder any man that understands the Protestant religion, than to persuade him to such villanies. And among those many things which prevailed with the honest gentlemen of the jury to convict you of this horrid crime, they could not but take notice, that you (speaking to Ireland) that do pretend to learning, did send into foreign parts that your fellow jesuits should take care publicly to preach, That the oaths of allegiance and supremacy, by which the common justice of the nation is preserved, signified nothing; which is a strong evidence of your design, not only to murder the king, but subvert the government; for surely the most probable way to do that, is to asperse those oaths by which all protestant subjects, those whom you call heretics, lie under an obligation of obedience to their prince. And I think it not unfit to tell you, that you had a great favour showed to you to be tried only for the matters contained in this Indictment; for you that are priests must know, that there is a law in the land, that would have hanged you for your very residence here; for if any subject born in England shall take orders from the see of Rome, and afterwards come into England, and remain there 40 days, such, for that offence alone, are made traitors by act of parliament. But you are so far from being under any awe of that law or submission to it, that you dare not only come to live here in despite thereof, but endeavour what you can to overthrow both it, and the government itself. You dare conspire to murder the king; nay not only so, but you dare make your consults thereof public. You dare write your names to those consults. You dare solicit all your party to do the like, and make all the ties of religion and conscience (that to considering Christians are obligations to piety and charity) as engagements either to act your villanies, or to conceal them. We think no power can dispense with us, whom you call heretics, to falsify our oaths, much less to break our covenant with God in the Holy Sacrament. But you, instead of making that a tie and obligation to engage you to the remembrance of our Saviour, make it a snare and a gin to oblige your proselytes to the assassinating kings, and murdering their subjects. I am sorry with all my soul, that men who have had their education here, and the benefit of the good examples of others, should not only be led into such mischievous principles themselves, but to be of that confidence in their persuasion, as to dare to debauch others also. I am sorry also to hear a layman should with so much malice declare, That a bullet, if round and smooth, was not safe enough for him to execute his villanies by; but he must be sure, not only to set his poisonous invention on work about it, but he must add thereto his poisonous teeth; for fear if the bullet was smooth, it might light in some part where the wound might be cured, But such is the height of some' mens malice, that they will put all the venom and malice they can into their actions. I am sure this was so horrid a design, that nothing but a conclave of devils in hell, or a college of such jesuits as yours on earth, could have thought upon. This I remember to you for the sake of them that are to live, and for the charity I have for you who are to die: For the sake of them that are to live; for I hope when they hear, that men of your persuasion dare commit those outrageous crimes, and justify them by a principle of religion, they will not easily be seduced into your opinion: And out of charity to you that are to die, to persuade you to hearty repentance; for otherwise, I must tell you, thy 1,500l. (speaking to Grove) or thy 30,000 Masses (speaking to Pickering) will avail but little. And I thought fit to say this also, that it may be known that you have had the full benefit of the laws established in England, and those the best of laws; for such is not the law of other nations: For if any protestant in any place where the Romish religion is profest, had been but thought guilty of such crimes, he had never come to the formality and justice of an arraignment, and to be tried by his peers, permitted to make his defence, and hear whac could be said against him; but he had been hanged immediately, or perhaps suffered a worse death. But you are not only beholden to the happy constitution of our laws, but to the more happy constitution of our religion. For such are the admirable documents of that religion we in England profess, that we dare not requite massacre for massacre, blood for blood. We disown and abhor all stabbing ; and we are so far from reckoning that he shall be a saint in Heaven for assassinating a prince, and be prayed to in another world, that the Protestant is required to believe, that such as begin with murder, must end with damnation, if our blessed Lord and Saviour do not interpose; nothing that man can do, Papist or Protestant, can save any man in such a case. We dare not say that our religion will permit us to murder dissenters, much less to assassinate our king. And having thus said, let me once more as a Christian, in the name of the great God of Heaven, beg of you for your own souls sake, be not satisfied or over-persuaded with any doctrine that you have preached to others, or imbibed from others; but believe, that no one can contrive the death of the king, or the overthrow of the government, but the great God of Heaven and earth will have an account of it. And all pardons, absolutions, and the dispensations that you who are priests can give to your lay-brother, or that any of your superiors may give to you, will not serve the turn. I know not, but as I said, you may think I speak this to insult, I take the great God of sions of Oyer and Terminer, and gaol-deliverey of Newgate, holden 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. Heaven to witness, that I speak it with charity hall, London, on Friday the 10th day of Jato your souls, and with great sorrow and grief nuary next, at seven of the clock in the mornin iny own heart, to see men that might haveing. And all manner of persons at this sesmade 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 cominendation; 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 feoders. 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 be 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. I 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 thence 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 preclamation thus: Cl. of Cr. Crier, make proclamation. Crier. O Yes, O Yes, O Yes! All manner of persons that have any thing more to do at this general sessions of the peace holden for the city of London, may depart hence for this time, and give their attendance at the Guild 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, be 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 be merciful to all christian souls. And as for all our enemies, we earnesty desire that God would pardon them again and again, for we pardon them heartily, from the bottom of our hearts; and so I beseech all good people to pray for us and with us.” Then Mr. Groves said; "We are innocent; we lose our lives wrongfully; we pray to God to forgive them that are the causers of it." is a matter of great weight, I shall therefore consider of it, and return you an answer." him. 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 upou he would comply with their request concerning ted for so long a time, that it occasioned an Address of the House of Commons, April 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 He was accordingly executed in pursuance of his sentence. Arriving at the place of execution, he appeared to the spectators (after a manner very unusual to persons in his condition) with a countenance not only calm, sweet, and serene, but even chearful, smiling, and pleased; solemnly protesting upon his salvation, he was innocent in thought, word, and deed, of all that was laid to his charge. Then heartily praying for his accusers and enemies, he said to the hangman Friend, do thy office;' and soon after left the world. 246. The Trial of the Lord CORNWALLIS, before the Lords* at Westminster, for the Murder of Robert Clerk: 30 CHARLES II. A. D. 1678.† AFTER my Lord High Steward (lord Finch | of the crown in the Chancery, on his knees, to afterwards earl of Nottingham) was ascended to the High Chair of State, and sat down therein, the commission was delivered by the clerk my lord, who delivered it to sir Thomas Fanshaw, clerk of the crown in the King's-Bench office, and he received it kneeling. Then pro* This was a Trial in the Court of the Lord passed by him, and advanced into the court, High Steward, as to which, and the distinction which was a large tribunal erected for this purbetween it and the High Court of Parliament, pose (the whole structure extended almost from or as Mr. Justice Foster stiles it, "The Court the stairs leading to the courts of King's-bench of our Lord the King in Parliament," see the and Chancery to the court of Common Pleas, Case of Lord Delamere, A. D. 1686, infra; but the court itself was not so large by much.) and of Earl Ferrers, A. D. 1760, infra; and The cloth of state was placed aloft in the midFoster's Crown Law, 138. See also 4 Hat-dle of both sides of it, but a little behind were sell's Precedents, 197. 277, and the Appendix, No. 3. built two small boxes; on the right were the king, the queen, the duke and duchess; the others were filled with persons of honour. The peers triers were seated on both sides the chair of state, but at the distance of about five paces from it, and a step lower on benches covered with green cloth, with which the whole court was likewise covered. At the peers feet sat the judges, some on one side and some on the other, their seats being of the same height with the floor of the court. In the middle was a place cut for the clerk of the crown of the King'sbench, and for his deputy, in the lower part. The king's council, viz. his senior serjeant, attorney and solicitor were placed. The prisoner was at the bar behind them, but raised about six feet, and directly over against the chair of state. + This Case is thus reported in Jones's Rep. 54" The lord C. having been indicted for the murder of Robert Clerk mentioned in the next preceding: The king for his trial constituted Heneage lord Finch, then High Chancellor of England, to be Lord High Steward, hac vice tantum. The trial was upon the 30th day of June after Trinity Term, in the 28th year of the king. The proceedings were such as are described by lord Coke in his Book of Pleas of the Crown, chap. Treason, of the Trial of Peers; as to the summons of the peers triers, the Certiorari to the Lord Chief Justice for the indictment, and precept to the constable of the Tower of London, and other formalities there mentioned. The steward was attended from his house on the day of the trial quite to West- "After the court was thus disposed, Cherminster, by the judges in their coaches. Sir noke, serieant at arms, made proclamation Edward Walker, then garter king at arms, go-three times, and command was made that all ing before him in his coat with the serjeants at arms: when he was at the great door of the hall he tarried till the judges were alighted out of their coaches, and then the chief justices first, and the rest according to their seniority persons, except the lords the triers, and other peers of the realm, and the privy counsellors and the judges, should be uncovered. Then the clerk of the crown read the indictment, and arraigned the prisoner, who pleaded Not ་ elamation was made by the Serjeant at Arms, who was Crier for the day. Guilty, and put himself upon his peers, who were thirty-six, the greatest part of them of the most noble, of the greatest estate, and the wisest of the realm. Before any evidence was given, the Lord Steward made an elegant speech to the triers, and exhorted the prisoner to be of good courage, and without fear, and to summon all the faculties of his soul to his assistance. Then the evidence was first opened by the solicitor general, seconded by the attor ney, and concluded by serjeant Maynard, the prisoner all the while behaving himself with humility, modesty and prudence. After the evidence was concluded, the lords went to cousider and consult together, in the Court of Wards, as I believe, and during their absence biscuit and wine were distributed in the court. After two hours or more, the lords returned, and the Lord Treasurer, in the name of his fellows, prayed the advice of the Lord Steward and the Judges on this point, Whether a person's presence at and abetting of a manslaughter, committed by another, made him guilty, as it was in the case of murder. To which the Judges speaking, viz. those of the same side for themselves, and not altogether, all agreed that the law was the same in case of manslaughter as of murder. Then the lords weat back, and in half an hour returned to give their verdict. And being seated in their places the Lord Steward spoke first to the youngest lord in this manner, My lord A. is my Jord C. Guilty or not? and so to every one, ascending from the youngest to the first, and each answered in his order, Guilty or Not Guilty upon my honour. And six of them pronounced him Guilty of Manslaughter, and the rest Not Guilty. This being recorded, the Lord Steward broke the white rod (which was held before him during the whole trial) over his head, and then the court broke up. "B. G. having been indicted for the same murder of Robert Clerk, with the said lord C. surrendered himself in Michaelmas Term, 28 C. 2. and being brought to the King's bench bar the same term, and arraigned, pleaded the king's pardon, which was read, he being on his knees. Then Twisden, justice, observed, that the pardon did not recite the indictment, and that he remembered it had been questioned, whether a pardon after indictment, without mentioning it, should be allowed. But he thought the pardon in this case was well enough, for it had these words, 'sive' (the prisoner) fuit indictat' sive non.' Note this pardon was per verba of felonicam interfectionem quamcunq; with a 'Non obstante the statute of R. 2,' &c. and was allowed by all the court, and the prisoner, after grave advice given him by the Lord Chief Justice and Twisden, discharged, and afterwards according to the custom he presented gloves to all the Judges." VOL. VIL. Serjeant. O yes, O yes, O yes! My Lord High Steward of England strictly chargeth and commandeth all manner of persons here present, upon pain of imprisonment, to keep silence, and give ear to his majesty's commission, To my Lord High Steward of England, to his grace directed. The clerk of the crown, with his face to my Lord High Steward, reads it thus: Clerk of the Crown. Charles Rex Carolus Secundus, &c. All which time my lord and the peers stood. up bare. Serjeant. God save the king. Cl. Cr. Make proclamation. Serjeant. O yes! The king at arms, and the usher of the black rod, on their knees, deliver the white staff to my lord, who re-delivered it to the usher of the black rod, who held it up all the time before him. Cl. Cr. Make proclamation. Serjeant. O yes! My Lord High Steward of England strictly chargeth and commandeth all justices and commissioners, and all and every person and persons to whom any writ or precept hath been directed for the certifying of any indictment, or of any other record before my Lord High Steward of England, to certify and bring the same immediately, according to the tenor of the said writs and precepts unto them, or any of them directed, on pain and peril as shall fall thereon. The lord chief justice of the King's-Bench returned his Certiorari, and the record of the Indictment by the grand jury of Middlesex, which was read by the clerk of the crown in hæc verba. Cl. Cr. Virtute, &c. L. H. Stew. Call the constable of the Tower to return his precept and bring forth his prisoner. Cl. Cr. Make proclamation. Serjeant. O yes! Constable of the Tower of Loudon, return the precept to thee directed, and bring forth the prisoner Charles lord Cornwallis, on pain and peril as will fall thereon. The lord lieutenant of the Tower brought in the prisoner, on his left-hand, with the ax before him, borne by the deputy-lieutenant, which he held with the edge from him, and returned his precept in hæc verba. Cl. Cr. Virtute, &c. L. H. Stew. Call the Serjeant at Arms to return his precept. Cl. Cr. Make proclamation. Serjeant. O yes! Roger Harfnet, esq. Serjeant at Arms to our sovereign lord the king, return the precept to thee directed, with the names of all the lords and noblemen of this realm, peers of Charles lord Cornwallis, by thee summoned, to be here this day, on pain and peril as will fall thereon. He delivered his precept returned with a schedule annexed thus: Cl. Cr. Virtute, &c. Make proclamation. Serjeant. O yes! All marquisses, earls, viscounts, and barons of this realm of England, L 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. "The wisdom of the law bath therefore styled it the king's peace, because it is his authority that commands it, it is his justice that secures it, it is he on whom men do rely for the safety of their liberties, and their lives; in him 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. Cl. Cr. Charles Lord Cornwallis, Thou standest indicted in the County of Middlesex, by the name of, &c. How sayest thou, Charles lord Cornwallis, Art thou guilty of this felony and murder whereof thou standest indicted, or Not guilty? Lord Corn. Not guilty. Cl. Cr. How wilt thou be tried? Then my Lord High Steward addressed himself to the Lords thus: L. H. Stew." My Lords, Your lordships have here a member before you of your noble body, exposed to the shame of a public arraignment, and (which to a man of honour is much 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 "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 privilege this nation never was without. "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 Indict-himself. ment 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 helps 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. "Hearken therefore to your indictment with quietness and attention; observe what the wit As to striking in the palace, &c. See the Cases of sir Edmund Knevet, ante, vol. 1, p 443, of the earl of Devonshire, A. D. 1687; and of lord Thanet and Mr. Ferguson, A. D. 1797, post. See also East's Pleas of the Crown, .C. 9, sect. 3. "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 this is a privilege as ancient as Monarchy, so 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. "In the exercise of this privilege at this time; I know your lordships will weigh the |