of Dorset; 10. Earl of Salisbury; 11. Earl of Leicester; 12. Earl of Warwick; 13. Earl of Carlisle; 14. Earl of Holland; 15. Earl of Berks; 16. Earl of Denbigh; 17. Viscount Wimbleton; 18. Visc. Conway; 19. Visc. Dorchester; 20. Visc. Wentworth; 21. Lord Percy; 22. Lord Strange; 23. Lord Clifford; 24. Lord Petre; 25. Lord North; 26. Lord Goring; 27. Lord Howard.

fore, if you be innocent, speak boldly and confidently, and fear not to justify yourself; and be assured that those that accuse you (if you be free yourself) shall not escape free. But if you be guilty of those crimes, I advise you to give honour to God and the king, and confess your fault; for it is not vain confidence, nor subtilty, nor standing out in denial, that can hide the truth; and all shifts and subtilties The Judges present: sir Nicholas Hyde, against it are but Concilia adversus DomiL. C. J. of the King's-Bench; sir Thomas Ri- num.' Therefore, if truth touch you at the chardson, L. C. J. of the Common-Pleas; sir heart, and your conscience, which is a thousand Humphrey Davenport, L. C. B. of the Exche-witnesses, and God's grace, which is greater quer; Baron Denham; Judge Jones; Judge Hutton; Judge Whitlocke; Judge Croke. The King's Counsel: sir Robert Heath, Attorney-General; sir Richard Shelton, SolicitorGeneral; sir John Finch, queen's AttorneyGeneral; sir Thomas Crew, king's Serjeant at Law.

Officers of the Court: sir Thomas Fenshaw, Clerk of the Crown; Mr. John Keeling, his Deputy or Assistant.

This done, the Lord Steward, after a solemn precognizance, commanded the Indictments to be certified and brought in; and then, by a serjeant at arms, the lieutenant of the Tower was called to bring forth the Prisoner, (who until that time was kept in a little room by the Common-Pleas) and the lieutenant brought him to the bar, with divers of the guard attending on him, where he had a place in manner of a pew, lined with green, in which he stood; and the lieutenant had another of the same form for him to rest in, adjoining to it. And when he had done his obeisance to the Lord-High Steward and the peers, (who all re-saluted him again) the Lord-High-Steward spake to him in the manner following:

The Lord-High-Steward's Speech.

My lord Audley; the king hath understood, both by report and the verdict of divers gentlemen of quality in your own country, that you stand impeached of sundry crimes of a most high and heinous nature; and to try whether they be true or not, and that justice may be done accordingly, his majesty brings you this day to your Trial, doing herein like the mighty King of Kings, in the 18th of Genesis, ver. 20, 21, who went down to see whether their sins were so grievous as the cry of them: Because 'the cry of Sodom and Gomorrah is great, and their sins be grievous, I will go down (saith 'the Lord) and see whether they have done al⚫ together according to the cry of it.' And kings on earth can have no better pattern to follow than the King of Heaven; and therefore our sovereign lord the king, God's vicegerent here on earth, hath commanded that you shall be here tried this day, and to that end, hath caused these peers to be assembled: and the desire of his maj. is,that your trial shall be as equal as equity and justice itself; and therefore these noble Den your peers (whose hearts are as full of integrity, justice, and truth, as their veins full of noble blood) are this day to try you. Where

than both, stand not out against it: And if you do, God will put it into the hearts of these noble persons to find it out, and to do that which is just.

The Lord Audley's Answer.

May it please your grace; I have been close prisoner these six months, without friends, without counsel or advice: I am ignorant of the advantages and disadvantages of the law, and am but weak of speech at the best, and therefore I desire to have the liberty of having Counsel to speak for me.

The Lord-High-Steward's Reply.

For your so long imprisonment, it hath been to you a special favour; for you have had time enough to bethink yourself, and more than ever any man had that hath been committed for such an offence, and more favour than ever any had that came to this bar; and you shall demand nothing, which the law can allow, but you shall have it. But for your de mand, I must move it to the lords the Judges, and they shall satisfy you in it, or any other thing you desire.

'Then his grace desired to be resolved of the Judges, Whether this demand of my lord Audley, to have Counsel to plead for him, might be granted or not?

The Judges answerel, That, in criminal cases, counsel is not to be admitted for matter of fact; but for matter of law they may.

Then the Lord Steward proceeded to the Charge, commanded the three Indictments to be read by sir Thomas Fenshaw, Clerk of the Crown; two for Sodomy with Lawrence FitzPatrick, his footman; the third for a Rape committed on his own wife, the countess of Castlehaven: viz.

The THREE INDICTMENTS.

The following are Copies of the said Indictments: viz.

'cerunt.

habentes, sed instigatione diabolica moti et 'seducti, vicesimo die Junii, anno regni domini nostri Caroli, Dei gratia Angliæ, Scotia, Franciæ, et Hiberniæ regis, fidei defensoris, 'sexto, apud Fountell Gifford prædict' et in et Super Annam dominam Audley, uxorem præfati domini Martini Audley, in pace Dei et ⚫dicti domini regis ibidem existent' insult' feEt prædictus Ægidius Broadway prædictam Annam dominam Audley, vi et armis, contra voluntatem ipsius Annæ ad 'tunc et ibidem violenter et felonice rapuit, ac ipsam Annam ad tunc et ibidem contra vo'luntatem suam violenter et felonice carnaliter cognovit, contra pacem domini regis nunc, coron', et dignitat' suas, et contra formam statuti in hujusmodi casu edit' et provis'.

Et ultra, juratores prædicti dicunt super sacramentum suum prædict', quod prædictus Martinus dominus Audley prædicto vicesimo 'die Juniis ann' sexto supradicto; apud Foun'tell Gifford prædictam, in comitatu prædicto, ⚫ felonice fuit præsens, auxilians, et confortans, abettans, procurans, adjuvans, et manutenens 'prædictum Ægidium Br. ad feioniam prædictam, in forma prædicta felonice faciend' et perpetrand', contra pacem dicti domini regis nunc, coronam et diguitatem suas, ac contra ⚫ formam statuti prædicti.'

2. Rex versus Dominum AUDLEY, for Sodomy.

7 Car. 1.

roli, &c. sexto, apud Fountell Gifford prædict in dicto comitatu Wilts, in domo mansionali ejusdem Martini domini Audley, ibidem vi et armis in quendam Florence Fitz-patrick, veoman, insult' fecit, et cum eodem Florence F. 'ad tunc et ibidem nequit', diabolice, felonice, ' et contra naturam rem veneream habuit, ipsumque F. ad tunc et ibidem carnaliter cognovit, peccatumque illud sodomiticom detes'tabile et abominandum, Anglicè vocat' buggery (inter Christianos non nominandum) ad tunc et ibidem cum eodem Florence F. ne'quit' diabolice, felonice, et contra naturam 'commisit et perpetravit in magnam Dei omni'potenus displicentiam, ac totius humani ge'neris dedecus, ac contra pacem dicti dom' reg' nunc, coronam et dignitat' suas, et contra 'formam statuti in hujusmodi casu edit' et provis'.'

Then being asked, whether he was Guilty of them, or Not Guilty? He answered, Not Guilty. Then he was asked how he would be tried? The carl said, By God and my Peers. Whereupon the peers put off their hats; and thereupon the issue was joined.

The Lord High Steward's Speech to the Lords.

My Lords; The prisoner stands indicted for by two; and he hath pleaded Not Guilty to a Rape by one Indictment, and of Sodomy* them all: it is my duty to charge you with the Wilts, ss. Juratores pro domino rege su- Trial of it, and you are to judge of it. The ofper sacramentum suum præsent', quod Mar- fences wherewith he stands charged, are to be tinus dominus Audley, nuper de Fountell Gif- | proved by Evidence; and the crimes that come ford in comitatu Wilts', Deum præ oculis non this day before us, may in some breed detestahabens, nec naturæ ordinem respiciens, sed tion, and the person of his lordship in others instigatione diabolica motus et seductus, pri- may breed compassion; I desire your lordships mo die Junii, an' regni domini nostri Caroli, to set these two aside, and let your reason sway &c. sexto, apud Fountell Gifford prædict' in your judgment, and let that rule your affecdicto comitatu Wilts, in domo mansionali tions, and your hearts your heads; for neither ejusdem Martini domini Audley, ibidem vi et of these ought to be put into the balance, for armis in quendam Florence Fitz-patrick, yeo- a grain on either side may sway the scale. You man, insult' fecit, et cum eodem Florence F are to give attentive hearing, and then to weigh ad tunc et ibidem nequit', diabolice, felonice, equally, that the scale may lean the right way. et contra naturam rem veneream habuit, ip- The Judges will assist you in the points of law, sumque F. ad tunc et ibidem carnaliter cog- which if you doubt of you are to expound it novit, peccatumque illud sodomiticum detes- to me, and I to them. And this you are to do tabile et abominandum, Anglicè vocat' bug-without corporal oath; for the law conceiveth gery (inter Christianos non nominandum) ad tunc et ibidem cum eodem Florence F. nequit diabolice, felonice, et contra naturam com'misit et perpetravit in magnam Dei omnipotentis displicentiam, ac totius humani generis 'dedecus, ac contra pacem dicti dom' reg' nunc, coronam et dignitat' suas, et contra formam statuti in hujusmodi casu edit' et provis'. 3. Rex versus Dominum AUDLEY, for Sodomy.

7 Car. 1.

Wilts, ss. Juratores pro domino rege super sacramentum suum præsent', quod Martinus dominus Audley, nuper de Fountell Gifford in comitatu Wilts', Deum præ oculis non habens, nec naturæ ordinem respiciens, 'sed instigatione diabolica motus et seductus, 'primo die Junii, an' regui domini nostri Ca

you of such integrity, that you will do that for justice, which others do upon their oaths; and therefore admits of no challenge: and God direct you to do as you ought.

Then Sir Tho. Crew gave the first Charge; and after him Mr. Attorney said as followeth :

My Lord Steward; May it please your grace, there are three Indictments against Mervin

lord Audley; the first for a Rape, the other two for Sodomy. The person is honourable; the crimes of which he is indicted dishonourable; which if it fall out to be true, which is to be left to trial, I dare be bold to say, never

* See in Coke's Ent. 352, a precedent of this kind in Stafford's Case, which in Co. 3 Inst. 59, is said to have been drawn by great advice.

poet invented, nor historian writ of any deed so foul. And although Suetonius hath curiously set out the vices of some of the emperors who had absolute power, which might make them fearless of all manner of punishment, and besides were heathens, and knew not God; yet none of these came near this lord's crimes. The one is a crime, that, I may speak it to the honour of our nation, is of such rarity, that we seldom or never knew of the like; but they are all of such a pestilential nature, that, if they be not punished, they will draw from Heaven a heavy judgment upon this kingdom.

Whereupon (Mr. Attorney digressing from the matter) the lord Audley would have interrupted him, and required to hold him to the points in the Indictments. But the Lord High Steward desired his lordship to be patient, and assured him he should be heard in fit time at full. Whereupon Mr. Attorney proceeded again in his Charge as followeth :

and where the law doth not distinguish, neither must we. And I know you will be cautious how you will give the least mitigation to so abominable a sin, which brought such plagues after it, as we may see in Gen. xvii. Levit. xviii. Judg. xix. Rom. i. But, my lord, it seemed to me strange at the first, how a nobleman of his quality should fall to such abominable sins; but when I found he hath given himself over to lust, and that Nemo repentè fit pessimus,' and if once men habit themselves in ill, it is no marvel if they fall into any sins, and that he was constant to no religion, but in the morning he would be a Papist and go to mass, and in the afternoon a Protestant and go to a sermon. When I had considered these things, I easily conceived, and shall be bold to give your grace a reason why he became so ill. He believed not God, he had not the fear of God before his he left God, and God left him to his eyes; own wickedness: and what may not a man rua into? What sin so foul, what thing so odious, May it please your Grace; I can speak it which he dares not adventure? But I find in with joy and comfort, during all my time of ser- him things beyond all imagination: for I find vice, both in his majesty's father's time, and his ill imagination and intentions bent to have since he came to the crown, I had never the ever his wife naught with the wickedest man that like occasion to speak in this place against a I heard of before: for who would not have his peer of the realm before now; and God knows wife virtuous and good, how bad soever himI do it now with sorrow, and I hope I shall self be? And I find him bawd to his own wife. never have the like occasion to do so much If she loved him, she must love Skipwith, whom again. But his majesty, who is the pattern of he honoured above all, and not any honest love, virtue, not only as king, but in his person also; but in a dishonest love; and he gives his reason in whom it is hard to judge whether he most by Scripture,She was now made ɛubject to excels in justice or mercy, but I rather think him; and therefore if she did ill at his comin mercy, would have my lord Audley the pri- mand, it was not her fault but his, and he would soner at the bar, heard with as much favour answer it. His irregular bounty toward Skipas such a crime can adinit: and when he first with was also remarkable. He lets this Skipheard of it, he gave strict command, that the with, whom he calls his favourite, spend of his truth should be searched out, that his throne purse 500l. per annum; and if his wife or and people might be cleared from so heavy and daughter would have any thing, though never heinous sins; and thereupon he was indicted so necessary, they must lie with Skipwith, and in his own country, according to the law, and have it from him, and not otherwise; also tellby gentlemen of worth and quality. The Billing Skipwith and his daughter-in-law, he had was found; and now he is personally brought to the bar to be tried by these his honourable peers, such of whose wisdom and sincerity there can be no question, but that he shall have just and honourable trial. And first, I shall begin with the Indictment of Rape. Bracton tells us of king Athelstane's Law before the Conquest: If the party were of no chaste life, but a whore, yet there may be a ravishment; but it is a good plea to say she was his concubine.' In an Indictment of Rape, there is no time of prosecution necessary; for nullum tempus ⚫ occurrit regi:' but in case of an Appeal of Rape, if the woman did not prosecute in convenient time, it will bar her. If a man take away a maid by force, and ravish her, and afterwards she give her consent and marry him, yet it is a Rape.

For the crimen sodomiticum, our law had no knowledge of it till the 25th of Henry 8, by which statute it was made Felony: and in this there is no more question, but only, whether it be crimen sodomiticum sine penetratione; and the law of 15 Eliz. sets it down in general word:

rather have a child by him than any other. But for these things, I had rather they should come of the Witnesses mouths than from me: and thereupon desired that the Proofs might be read.

The Deposition of WALTER BIGG.

Walter Bigg deposed, That Amptil was a page to sir H. Smith, and had no more means when he came to my lord Audley, but the mare he rode on. He entertained him as his page 8 years, and afterwards let him keep horses in my lord's grounds, by which I think he enriched himself 2,000l. but he never sat at table with my lord till he had married his daughter, and then he gave him to the value of 7,000l.—That Skipwith was sent from Ireland to be my lady's page; and that his father and mother were very poor folks there. He spent of my lord's purse per annum 500/, and he gave him at one time 1,000l. and hath made divers deeds of land unto him.-My lord was first a Protestant; but after, by buying of Founthill, he turned his religion.

Then was read the young lady AUDLEY'S Exa

mination.

That she was married to her husband by a Romish priest in the morning, and at night by a prebend at Kilkenny; that she was first tempted to lie with Skipwith by the earl's allurements; and that she had no means but what she had from Skipwith; but she would not lie with Pawlet; he solicited her also to lie with one Green.-That the Earl himself saw her and Skipwith lie together divers times; and nine servants of the house had also seen it. When the Earl solicited her first, he said, that upon his knowledge her husband loved her not; and threatened, that he would turn her out of doors, if she did not lie with Skipwith; and that if she did not, he would tell her busband she did. That she being very young, he used oil to enter her body first: and afterwards he usually lay with her, and it was with the earl's privity and consent.

'Lord doth visit this land for the iniquity 'thereof.' And then concludes; That God may remove and take away from us his plagues, let this wicked man (saitli he) be taken away from amongst us.

Then the Earl (after the Lord Steward had told him he should be heard in his own Defence, with as much patience as was admitted in his Charge) entered into his own Defence. But the Lord Steward advised him to speak pertinently; whereupon he alledged, that he was a weak man, and of ill memory, and therefore desired that he might not be interrupted.

1. Then he began his defence with exceptions against his wife, urging, that she was naught and dishonest with Brodway, by her own confession.

Whereupon my Lord Steward answered, That this made against his lordship; therefore he ought not to alledge for his Defence that fact, as an imputation to his wife, which he forced her unto by compulsion and violence.

2. Then he objected against the Incompe tency of the Witnesses, as the one his wife, the other his servants; and they drawn to this by his son's practice, who sought his life: and desired to know, if there were not a statute against the Incompetency of Witnesses?

The Judges resolved him, that there was none touching Witnesses; but in cases of HighTreason, there was a statute concerning Ac

cusers.

BRODWAY'S Examination, who confesseth, That he lay at the Earl's bed's feet, and one night the earl called to him for tobacco; and as he brought it in his shirt, he caught hold of him, and bid him come to bed, which he refused; but to satisfy my lord, at last he consented, and came into the bed on my lord's side: then my lord turned him upon his wife, and bid him lie with her, which he did; and the earl held one of her legs and both her hands, and at the last (notwithstanding her resistance) lay with her. Then the earl used his body as the body of a woman, but never pierced it, only emitted between his thighs.-judged Felony as for a Rape? He hath seen Skipwith lie with the young lady in bed together; and when he had got upon her, the earl stood by and encouraged him to get her with child: and that he hath made him the said Brodway kiss his own lady, and often solicited him to live with her, telling him, that be himself should not live long, and that it might be his making; and that he hath said the like to Skipwith.

3. Then he desired to be resolved, whether, because Brodway doth not depose any Pene tration, but only that he emitted upon her belly while the earl held her, that should be

The EARL's second Examination. The Earl desired to be pardoned of those things whereof he must accuse himself, and said, That condemnation should not come out ⚫ of his own mouth.'

These Testimonies being read, Mr. Attorney pressed things very earnestly, and in excellent method against the Earl, and said,

My lords; you have seen the clearness of the Proofs, and I know your wisdoms to be such, as you well know in so dark a business clearer proofs cannot possibly be had; for let a man be never so wicked, or never so impudent, he will not call Witnesses to see his wickedness: yet you see here this point fully proved.

Then he shewed how both the laws of God and man were against Sodomy, and cited Levit. 18, towards the end, That by these Abomi'nations the land is defiled; and therefore the

The Judges resolved it to be a Rape, and so consequently to be Felony.

4. Then he desired to be resolved, whether his wife is to be allowed a competent Witness against him, or not?

The Judges resolve, That in civil cases the Wife may not; but in a criminal cause of this nature, where the wife is the party grieved, and on whom the crime is committed, she is to be admitted a witness against her husband.

Then the Lord High-Steward desired the lords the Judges to resolve the questions which Mr. Attorney in his Charge submitted and referred to their judgments.

1. Whether it were to be accounted Buggery within the statute, without penetration? The Judges resolve, that it was; and that the use of the body, so far as to emit thereupon, makes it so.

2. Whether, it being proved that the party ravished were of evil fame, and of an unchaste life, it will amount to a Rape? The Judges resolve it to be a Rape, though committed on the body of a common strumpet; for it is the enforcing against the will which makes the Rape; and a common whore may be ravished against her will, and it is Felony to do it.

3. Whether it is adjudged a Rape, when the woman complaineth not presently? And, whether there be a necessity of accusation within a