hand not drawn, and then was pleased to come to the centinel, and desired to kiss him, and swore he would do that: but that the centinel did equally refuse; and then they did use the same threatnings again and seemed to be in a contention who should run him through. My Lords, after some time, being now come to the top of the stairs, and there staying, it happened there came to the stair-foot two youths, and these young men were, it seems, going to bed in their lodging, which was very near, and did make it their request to the centinel (one of them did) to call him up very early the next morning, because he was to go of a message out of the town. My Lord Cornwallis and Mr. Gerrard remaining on the top of the stair-case, being (as we said) in disorder (which is the strength of the king's evidence, if proved) both of them said, before they went thence they would kill some or other, which evidence will go a great way to shew the concern that noble Lord the prisoner at the bar, had in the business.

It happened as these boys were making their request to the centinel, my Lord and Mr. Gerrard took notice of it, and seemed to be concerned that they should command the king's soldiers, and bid the centinel shoot him, who told them he conceived the boy had done him no wrong in asking a civil kindness from him; they again called to shoot him, and they would bear him out; which he still refused to do, finding no reason for it: then one of the two took occasion to swear a great oath, he would kick his Arse to Hell;' to which the boy that asked the centinel made some reply; wherein the word Arse' was repeated: (Now whether they understood it as an interrogation, why kick my Arse to Hell?' as he intended it; or in a worse sense, kiss my Arse') one of the gentlemen in a rage came running down the stairs, and that boy that in truth spoke the word ran away, and the other poor innocent boy, trusting in his own innocency, remained there until the person came to him, and did on his knees (in a manner) desire not to be mistaken, he was not the person that used any ill words, and cryed out, O my Lord, it was not I; indeed, my Lord it was not I; but such at that time, was the intemperance and wrath of the person, who in such a fury descended the stairs, that (whether with the blow or with the fall) the boy received his death. We find by our information of the evidence, that he who did the thing was in truth Mr. Gerrard, who is not yet taken; but whether my Lord, the prisoner at the bar, did not concur in it, and had not an intention to kill somebody, is the question left for your grace and these noble peers to decide. This is the nature of the fact; only I desire to observe, that it is true here was some distance between the place where my Lord Cornwallis stood, and the place where the boy was killed. Of what consequence that may be, I leave to your grace's and these noble lords consideration: It was the distance of the stairs; but I think, as every one knows, they are not so many, but

what is done below may be easily seen at the top.

We shall now, without detaining your lordships any longer, call the witnesses, and prove what hath been opened.

The Soldier proved the fact, as it was opened by Mr. Attorney General, except that part about both swearing they would kill one or other, which passage was heard but by one of them, and spoken but by one of the gentlemen. They could not swear who were the persons, because of the darkness of the time.

The Boy who was the companion of him that was slain, and that used the words that caused the person to come down, swore them to be a repetition only by way of interrogation, why kick my Arse to Hell?'

4

Then Mr. Attorney desired to call my Lord Cornwallis's own two footmen, who had been indicted and acquitted at the king's-bench-bar.

L. H. Steward. My Lords the judges, is there any question, whether a person acquitted of an offence be a good witness against another charged with the same offence?

Judges. None at all: when he is acquitted he ought to be admitted.

Then the copy of the acquittal (proved by a clerk in the crown-office) was read, and then were sworn; who fixed it upon the person of Mr. Gerrard, and swore that my lord Corawallis was all the while upon the top of the stairs, but after the fact committed hasted away for fear of being knocked down by the soldiers: and there ended the king's evidence.

L. H. Stew. Now, my lord, is the time come for your defence. You hear what is charged on you. Pray speak what you have to say for yourself.

Then the Prisoner at the bar confessed him self to have been in the company that night when this accident happened, which he hoped would be a warning to him to shun such dis orders hereafter; but that he had no evil in tention, and but one witness swore that both o them would have killed the centinel; that be was not conscious to himself, to have had a hand in, and therefore withdrew not himself it but yielded himself to the coroner the nex day, (which he proved by the coroner himself and did therefore, in trust of his innocency submit himself to the judgment of his grace and his peers.-Which being done,

Sir Francis Winnington, the king's Solicito General, summed up the evidence in thi

manner:

May it please your grace, my Lord Hig Steward of England, and my noble lords th peers of the prisoner at the bar: According the duty of my place I am to repeat the king evidence, and state it to your grace and thes noble lords, and submit it to your great judg ments, how far it will go for the proof of the crime; wherein I shall observe the duty of a honest men, which is to do nothing either t wrest any thing in disadvantage of the prisone out of the king's evidence, to go farther than

ought, nor shall omit any thing that shall require your grace and the noble lords' justice; far we come to seck out the truth, and we question not but by this honourable trial it will be brought to light. But I beseech your favour to take notice, in the first place, what crime this nable lord stands accused of, and it is for murdar; wherein our law takes notice, that murder as where a man unlawfully kills another under the king's peace, with malice forethought. Now that here is a murder committed, I dare with all humility aver. By whom? that is the question: For this Robert Clerk, the person killed, doth appear, by the course of the evidence, to have been doing his duty, attending the place his employment required; gave no offence to any whatsoever; but when the person came down and fell upon him, the poor youth cried, Indeed, my lord, it was not I;' yet, my lords, the bands of violence seized him, and killed him. Let us then see how the evidence brings it home the noble lord, the prisoner at the bar; wherein I must confess we have no express evidence (nay, we have evidence to the contrary) that it was not his hand that did the fact actally; for it is by two witnesses, the footmen, sworn that it was Mr. Gerrard who came down and gave the unfortunate blow: but we have that which we think, with humble submission, may reach this noble lord: For I know your grace and my lords remember, that after they had been an hour in the park, both returning, did with horrid oaths swear they would kill the centinel; there the evidence fixeth it, not upon one only, but upon both: it was at that time so dark they could not be distinguished, but by the voice: The centinel hath given you an account how be performed his duty, and in what strait he was, he had much ado to save his own life, or to prevent killing them: But when they came upon the stairs, these two boys came there in order to desire the centinel to call one of them the next morning. Then one on the stairs (no man can tell who it was) with horrid execrations, asked, Will you command the king's soldiers? Shoot hiru, centinel, we will bear you out. But all this while it was dusk, no distinction of persons could be made; whereupon it will fall out to come to this case, If several persons intend to kill one, and happen to kill another, whether this be not murder in them? For the urging of this, as to the matter in law, I leave to him that comes after me. The centinel swears one of them did swear he would kill one or other; who it was took up that cruel resolution, is left to you to judge: but at that time they were both together upon the top of the stairs; and my lord doth not seem to give one title of evidence, that shews any endea routs of the prisoner at the bar to prevent the other, or disprove of his actions: If he had given an account of that, he bad silenced justice; but when they were all together, be not endeavouring to stop his hand, it is as much in law as if he had struck the stroke.

The other soldiers give you a particular account to the same purpose.

The two last witnesses do bring it to the per son of my lord, the prisoner at the bar, and Mr. Gerrard, who, they swore, came down the stairs, and his man followed him to the bottom, and there staid at some distance till the fact was done, and they all fled.

This I take to be the matter of fact faithfully proved before your grace, and the Lords the peers; and I would not trouble your grace longer, because I would not misreport any thing, whereby I might do wrong, either to the prisoner or the king's cause; and because I know your grace and the noble lords will distinguish and find out where the truth is. I must say, it is a great comfort to all the subjects of England, that crimes of this nature are so carefully presented, that whatsoever honours and dignities our gracious sovereign doth confer on any person, it doth not exempt him from the justice of the law: it is not only a comfort to this assembly, but to the whole nation, to see the king tender of his subjects persons and lives, in that he hath caused this strict course to be taken, where the enquiry hath gone from the grand jury of the county, until the bill came to this great tribunal where I doubt not but your grace, and these noble lords, will give a righteous and just judgment.

Serjeant Maynard. May it please your grace, my Lord High Steward of England, and my noble lords the Peers:

I, according to the duty of my place, come now to conclude the charge on the king's behalf. Some things are fit to be observed upon the evidence, that may produce a question for the decision of the fact, of what nature it is. That a murder is committed, is upon evidence without all question; and not only the death of a man, here is a child slain without any prove cation in the world given by him to that person that did it; and that did it too, notwithstanding the deprecations of the boy, affirming his own innocency, and that with as full circumstances as a Christian almost could a thing: these come from the king's palace-walk in the park; call the centinel rogue, and when he doth his duty, swear to murder him; with oaths that a Christian would blush at, and be

afraid to hear: God damme oftentimes reiterated; and he that saith that word, doth beg of God to hate him, and affirm that he doth hate God. The obscenity_that they used I shall not mention again. These are the circumstances of the case; that all were guilty of much, is no doubt; but who of the mur der, is the question. And I humbly conceive, it is manifest, that this noble lord was concerned in it. For it is not requisite to make a murder, that he who kills a man hath conceived a malice against him; for if I have a malice against any man, and the effect of that fall upon another, it is murder.

I apply it thus: if it be a murder in Mr. Gerrard, if this noble lord partake with him in the design which made it so; to wit, the malice against the centinel; he is as guilty, as

if his hand had been as much upon him as was Mr. Gerrard's; as in that known case of the man that poisoned an apple with an intent to kill his wife, and she not knowing of the poison, gave some of it to her child, of which it died; though he had no design to kill the child, yet the malice he conceived against his wife supplied the defect of an express malice to make it murder; and he was hanged therefore. So if a man assault a master, in the presence of his servant, who defends his master, and is slain, though the other had no purpose to kill him, yet it is felony in him, for which he shall die; the law implying a malice. Then here was clearly a malice to the centinel; how near it comes to the boy will come in question afterwards. I find the objection inade in my lord's case, that at the particular time where the fact was committed, my lord was not with Mr. Gerrard but that will be no objection in the case; for if he did partake in the design of the other, I will answer it with the case of my lord Dacrest of the South, who, with some others, went unlawfully to steal deer, and the keeper coming, some fled, among whom my lord was one: the keeper was killed, my lord Dacres being at that time without the pales, a mile off from the place, and yet was found guilty of the murder, and lost both his lands and life for it. But here, my lord Cornwallis was present, for the witness swears the distance was not so great but it might be discerned. Now whether he was aiding or assisting, is the next thing in question. What occasion had they of malice, revenge, or injury to the centinel? They both swore they would kill him: had there been any excuse for the other, if one of them had killed the centinel? That could not be. Well, they did not kill the centinel, but at the same time take up a causeless offence against another, and kill him. I argue, that the malice against the soldier was diffusive to the boy; and one of the witnesses proves, that one of them swore he would kill somebody: now, no one speaks to any thing of my lord's reproving Mr. Gerrard. Thus stands the case before your grace and my lords: it is a case of blood, and it cries loud: how far this noble lord and prisoner at the bar is guilty thereof, you are to enquire, and without all doubt will give a clear verdict, according to justice and honour.

L. H. Steward. My lords, you have heard the evidence; if your lordships please to go and consider of it, you may.

Then the prisoner withdrew into bis own apartment, with the lieutenant of the Tower. The lords went into a room behind the court of Chancery, and after a stay of two hours returned; and being all sat, the earl of Danby, Lord High Treasurer of England, who was the first of the jury, addressed himself to my Lord High Steward, and said:

Earl of Danby. My Lord High Steward,

* Sanders's Case in Plowden, fol. 473.
+ Anno 33 H. 8, Coke, S Inst. fol. 211.

there is a question in law, of which some of my lords desire to receive satisfaction before they can give in their full verdict; and we desire to know of your grace, whether it be proper here to ask the question of your grace, or to propose it to the judges.

L. H. Stew. If your lordships doubt of any thing, whereon a question in law ariseth, the latter opinion, and the better for the prisoner is, that it must be stated in the presence of the prisoner, that he may know whether the question be truly put.* It hath sometimes been practised otherwise; and the peers have sent for the judges, and have asked their opinion in private, and have come back, and given their verdict, according to that opinion; and there is scarce a precedent of its being otherwise done, but there is a latter authority in print, that doth settle the point so as I tell you; and I do conceive it ought to be followed; and it being safer for the prisoner, my humble opinion to your lordship is, that he ought to be present at the stating* of the question.

Call the prisoner to the bar. Who being come, my lord spake thus to him:

L. H. Stew. My lord Cornwallis, My lords the peers, since they have withdrawn, hare conceived a doubt, in some matter of law arising upon the matter of fact in your case; and they have that tender regard of a prisoner at the bar, that they will not suffer a case to be put up in his absence, lest it should chance to prejudice him, by being wrong stated; therefore, your lordship will do well to attend the question that is raised; and, my lords, will you please to propound your doubts?

Earl of Danby. It was taken notice of here, that by opening the matter by Mr. Solicitor,

* 3 Coke's Inst. fol. 429. Pasch. 26 Hen. 3, Lord Dacres's Case.

+ It must certainly be in the presence of the prisoner, if you ask the judges' opinion. By lord Somers, Lord High Steward, in lord Warwick's Case, A. D. 1699, infra. So also in lord Stafford's Case, A. D. 1680, infra. Lord Finch (the Lord High Steward) says, "My Lords have directed that all the judges that assist them, and are here in your lordships presence and hearing, should deliver their opi nions," &c. So in Sacheverel's Case, A. D. 1710, infra, the Lords resolve, on debate, that a question should be put to the judges in the court below, where accordingly it was put and answered. But in Hastings's Case, A. D. 1787, infra, the questions were proposed to the judges and answered by them, not in Westminster-hall in the presence of the parties, but in the House of Lords, with the doors shut. Upon this subject, see the Report of a Committee of the House of Commons, April 30th, 1794, under the heads "Mode of putting the Questions," and "Publicity of the Judges' Opinions." See also the Protest of June 29, 1789. In lord Delamere's Case, A. D. 1686, infra, the judges were interrogated and made answer in open court.

the matter of murder was explained to be meant by having a prepensed malice, and in that case it was opened to us, that any persons thea present, and that had in any sort contributed to the disorders, they were as equally guilty, as they whose hand had shed the blood of the person killed.

Now the doubt of some of my lords is, whether if it be found but man-slaughter, those are equally guilty (that are present, and have proved to contribute to the disturbance) of that crime, as they are in murder; because some of them have not the satisfaction that they are the same.

L. H. Steward. My lords the judges, I take , the doubt proposed to you, is this; Whether arna, those that are present, and have contribated to the disorders, whereby such an accident doth ensue, as proves to be manslaughter, be as culpable, as he that doth the immediate fact, as it is in the case of murder?

After a little pause and conference, the Judges returned this answer:

Jadges. We have had conference of this case, and our humble opinion is, If sundry persons be together, aiding and assisting to an action, wherein a manslaughter doth ensue, as in case of a sudden business without malice prepensed, they are equally guilty of the manslaughter, as they are in the case of murder prepensed.*

Earl of Danby. The Lords desire to withdraw once more. Which they did, and after a short space returned; and being called over, answered to their names; and all appearing, my Lord High Steward took their verdict striatin, beginning at the paisne lord in the following order, they answering, standing bare,

with their hands on their breasts.

L. H. Steward. My lord Duras, Is Charles lord Cornwallis guilty of the felony and murder whereof he stands indicted, or not guilty? Lord Duras. Not guilty.

The same question he demanded of each; who answered thus:

Lord Butler, Not guilty.

- Not guilty.

Newport, Not guilty.

Hallifax, Not guilty."

Viscount Cambden, Not guilty. Guilford, Not guilty.

Ailsbury, Not guilty of murder, but' guilty of manslaughter. Craven, Not guilty. Bath, Not guilty. Clarendon, Not guilty. Sunderland, Not guilty. Peterborough, Not guilty. Devonshire, Not guilty. Northampton, Not guilty. Bridgwater, Not guilty. Dorset, Not guilty. Suffolk, Not guilty. Bedford, Not guilty. Derby, Not guilty. Kent, Not guilty. Oxford, Not guilty. Arlington, Not guilty. Brereton, Not guilty,

Lindsey, Not guilty of murder, but of man} slaughter.

Dorchester, Not guilty.

Anglesey, Not guilty of murder, but of manslaughter,

Danby, Not guilty of murder, but of manslaughter.

Lord High Steward. Call the prisoner to the

bar.

Then the prisoner came to the bar, and the deputy lieutenant of the Tower held the edge of the ax towards him, while my Lord High Steward spake thus unto him;

L. H. Steward. My Lord Cornwallis, you have been indicted for murder, pleaded Not Guilty, put yourself upon your peers; and your peers upon consideration of the whole matter have acquitted you, and found you Not Guilty, so you are to he discharged.

Cl. Cr. Make proclamation.

Serjeant. O Yes! My Lord High Steward of England willeth and commandeth all persons to depart hence, in God's peace, and the king's, my lord high steward of England his grace

for

of manslaughter.

Paget, Not guilty.

Berkly, Not guilty of murder, but guilty of manslaughter.

King.

and s. 118,

assembly broke up,