LORD HIGH STEWARD--While this witness gets round, if your lordship has any other witness ready to stand up, pray let him be called.

EARL OF WARWICK--To prove the kindness between capt. Coote and me, I desire col. Blisset may be called. [Who stood up.]

LORD HIGH STEWARD--What is it your lordship asks this witness or calls him to?

EARL OF WARWICK--To testify what he knows of any kindness or unkindness between capt. Coote and me; whether he has not been often in our company?

LORD HIGH STEWARD--Have you been often in company with my lord of Warwick and capt. Coote?

COLONEL BLISSET--Yes, my lord, I was very well acquainted with both of them for a twelve-month past before this accident and I have often been in their company, and always observed that there was a great deal of friendship and kindness between them.

EARL OF WARWICK--My lord, I desire he may tell any particular instance that he knows or can remember.

COLONEL BLISSET--I remember when capt. Coote had his commission in the regiment of guards, he was complaining of the streightness of his circ.u.mstances; he was to pay for his commission 400 guineas, and said he had but 300 for to pay for it: and my lord of Warwick did then say to him, do not trouble yourself about that, or let not that disturb you, for I will take care you shall have 100 guineas, and he said he would give order to his steward to pay him so much; and I was told afterwards that he did so.

EARL OF WARWICK--I desire he may tell, if he knows of any other particular instances of my friendship to Mr. Coote?

COLONEL BLISSET--Once when he was arrested by his taylor for 13, my lord lent him five guineas, and used very frequently to pay his reckoning for him.

EARL OF WARWICK--I desire he may tell, if he knows any thing else; and whether he has not lain at my lodgings, and particularly but some small time before this accident happened.

COLONEL BLISSET--About ten days before this unhappy accident happened, I was at my lord of Warwick's lodgings, and when I came there I found capt. Coote a-dressing himself; and I asked him how that came to pa.s.s, and they told me they had been up late together, and that he had sent home for his man to dress himself there, upon which I did observe that they had been a-rambling together over night; and there was a very great familiarity between them.

EARL OF WARWICK--Did you observe any quarrel between us?

COLONEL BLISSET--No, none at all; I never knew of any quarrel between my lord of Warwick and capt. Coote, but I observed there was a particular kindness between them; and a great deal of friendship I know my lord of Warwick shewed to him, in paying of reckonings for him, and lending him money when he wanted.

EARL OF WARWICK--My lord, I desire he may be asked, whether he does not know that capt. Coote was straitened for money?

COLONEL BLISSET--I did hear capt. Coote say, that he had not received any thing from his father for 13 months, and his father was angry with him, and would not send him any supply, because he would not consent to cut off the entail, and settle two or three hundred pounds upon a wh.o.r.e he had.

ATTORNEY-GENERAL--Pray, Sir, will you consider with yourself, and though you are not upon your oath, answer the questions truly, for you are obliged to speak the truth, though you are not sworn, whenever you come to give your testimony in a court of judicature; pray, acquaint my n.o.ble lords here, whether you did never hear my lord Warwick complain of capt. Coote?

COLONEL BLISSET--No, I never did hear him complain of him.

ATTORNEY-GENERAL--Did you never hear the least word of any quarrel between them?

COLONEL BLISSET--No, indeed, I did never hear of any quarrel between them.

ATTORNEY-GENERAL--Did you never hear of any unkindness at all?

COLONEL BLISSET--No, indeed, my lord, not I: I never so much as heard of the least unkindness whatsoever.

LORD HIGH STEWARD--Well then, my lord, who do you call next?

EARL OF WARWICK--Now colonel Stanhope is here, I desire he may be asked the same question, whether he does not know the particular friendship that was between capt. Coote and me, and what instances he can give of it?

LORD HIGH STEWARD--You are to consider, Sir, though you are not upon your oath you are in a great court, and under no less restriction to testify the truth, and nothing but the truth: You hear what my n.o.ble lord asks you.

COLONEL STANHOPE--My lord, I have known my lord of Warwick and capt Coote for about a twelve-month, and I did perceive that they did always profess a great kindness for one another.

EARL OF WARWICK--I desire to know of him, whether he observed any particular friendship between capt. Coote and me, much about the time of this business?

COLONEL STANHOPE--About eight or ten days before this unhappy accident, I went to wait upon my lord of Warwick twice at his lodgings: Once I found capt. Coote there, one of them was in bed, and the other was dressing of himself; I thought they were very good friends that were so familiar, and I had good reason to think so, because of that familiarity: Both the times that I was there, when I found them together, was within eight days before the accident happened.

EARL OF WARWICK--The next witness I shall call will be Mr.

Disney.

ATTORNEY-GENERAL--But before colonel Stanhope goes, I desire to ask him this question, whether he did never hear or know of any unkindness between my lord of Warwick and capt. Coote?

COLONEL STANHOPE--No, indeed I did not; I always thought them to be very good friends.

LORD HIGH STEWARD--Will your lordship go on to your next witness?

EARL OF WARWICK--Yes, my lord, there he is, Mr. Disney; I desire he may be asked what he knows of any expressions of kindness and friendship between me and capt. Coote.

_Disney_ spoke to Lord Warwick lending Coote 100 guineas towards the price of his commission; he had observed great kindness between the two, and had several times seen Lord Warwick pay Coote's reckoning.

_Colonel Whiteman_ was then called. He had constantly seen Lord Warwick and Coote together;

they dined together almost every day for half a year's time almost; and as to this time, when this business had happened, I went to my lord of Warwick, being sent for by him, and found him at a private lodging, where he expressed a great deal of concern for the death of his dear friend Mr. Coote; and he shewed me the wound he had received in his hand, and he desired he might be private, and he told me he believed people would make worse of it than it was, because he did not appear; but he did but intend to keep himself out of the way till he could be tried; and I took what care I could to get him a convenience to go to France.

ATTORNEY-GENERAL--Pray, what reason did he give for his going away?

COLONEL WHITEMAN--The king being at that time out of England, and so the parliament not sitting, he said he did not love confinement, and had rather be in France till the parliament should meet, and he might have a fair trial, which he thought he should best have in this House.

He had never seen any unkindness or quarrel between them.

_Edmund Raymund_, Lord Warwick's steward, knew of the loan of 100 guineas by him to Coote, and provided the money paid on that occasion.

Lord Warwick then stated that he wished to call French as a witness, and desired that counsel might be heard on his behalf as to whether he could be guilty of the death of a man on whose side he was fighting equally with those who were fighting on the other side, and who had already been convicted of manslaughter.

After a brief discussion, it was decided that counsel should be heard on the question whether French was a competent witness. The facts were that he had been indicted for murder, and convicted of manslaughter; he claimed the benefit of clergy,[35] which was allowed him; the burning on his hand was respited, and a pardon remitting the burning altogether had been delivered to the Lord High Steward under the Privy Seal, but had not pa.s.sed the Great Seal.

Lord Warwick had accordingly to maintain that French was a good witness without having been burnt on his hand, or having been pardoned.

The _Attorney-General_ first proceeded to argue that an allowance of clergy did not make a felon convict a competent witness.[36] It did not discharge him from his offence, set him _rectus in curia_, and 'make him in all respects a person fit to have the benefit and privileges of a "probus et legalis h.o.m.o"' till he had pa.s.sed through those methods of setting himself right in the eye of the law, that the law had prescribed. The burning in the hand under the statute of Henry VII. was not a punishment; it only showed that the branded person was not to have his clergy again. Purgation was abolished by the statute of Elizabeth, but satisfaction was not made to the law, the convict was not fully discharged from its operation, and his credit was not restored, till he was branded or pardoned. Till then 'the conviction remains upon him,'

and he was not capable of being a witness.

_The Solicitor-General_, Sir John Hawles,[37] followed to the same effect, and, by the order of the Court _Powys_[38] was then heard on behalf of the prisoner. He agreed with the Attorney-General that the branding under the statute of Henry VII. was only for the purpose of showing that the branded man has had his clergy once, and was not a punishment; the punishment still remained to be inflicted by the process of purgation. But purgation was abolished after the Reformation by the statute of Elizabeth 'because it was only an outward appearance and shew of purgation, and was often the occasion of very great perjuries.' The Court had power to imprison the convicted man for a year; but that was not any more a punishment and a means of restoring a man to credit than was the branding.[39]

'What we insist on is this, that the allowance of clergy sets him right in court, since purgation is abolished, and is the same thing as if he had undergone the ceremonial parts of a formal purgation'; the prisoner was to have the same benefit of his clergy as purgation would have given him before the statute, and on being allowed his clergy is to be in the same condition as if he had undergone purgation or been pardoned. The respiting of the burning of the hand till the king's pardon could be obtained was not to put him in a worse condition than he would have been in had he been actually burnt. Cases were quoted, one of which was afterwards fairly distinguished, and it was urged that the burning was only a condition precedent to the accused getting out of prison, not to his being restored to his credit.

_Serjeant Wright_ replied for the Crown. He admitted that a pardon would restore a convict to credit as a witness, and that an allowance of clergy, followed by a burning of the hand, would have the same effect: now that purgation was abolished, the burning had taken its place; 'that is the very terms of the statute on which he is to be discharged; that must actually be done before he can be put into the same condition that he was in before the conviction, and consequently make him capable of being a witness.' One of the cases quoted by Powys was distinguished, and Hale was quoted to support the argument for the Crown.

_Lord Chief-Justice Treby_[40] was then called on for his opinion, and gave it that French was not a competent witness. He had not yet actually been pardoned, for pardons were not operative till they had pa.s.sed the Great Seal. By his conviction he had forfeited his liberty, his power of purchasing chattels or holding land, and his credit.

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.'