AN IMPARTIAL ACCOUNT OF THE TRIAL OF THE LORD CONWALLIS.  
LONDON, Printed in the Year. 1679.   

AN IMPARTIAL ACCOUNT OF THE TRIAL OF THE LORD CONWALLIS.  
AFTER my Lord High Steward was ascended to the High Chair of State, and sat down therein, the Commission was delivered by the Clerk of the Crown in the Chancery to my Lord on his Knees, who delivered it to Sir Thomas Fanshaw Clerk of the Crown in the King's Bench Office, and he received it kneeling.  
Then Proclamation was made by the Sergeant at Arms who was Cryer for the day.  Sergeant. 
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, etc.  
All which time my Lord and the Peers stood up bare.  Sergeant. 
God save the King.  Cl. Cr. 
Make Proclamation.  Sergeant. 
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.  Sergeant. 
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 have 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 haec verba.  Cl. Cr. 
Virtute, etc.  L. H. Stew. 
Call the Constable of the Tower to return his Precept and his Prisoner.  Cl. Cr. 
Make Proclamation.  Sergeant. 
O Yes, Constable of the Tower of London, return the Precept to thee directed, and bring forth the Prisoner Charles Lord Conwallis, on Pain and Peril as will fall thereon.  
The Lord Lieutenant of the Tower brought in the Prisoner on his left Hand, with the Axe before him, born by the Deputy Lieutenant, which he held with the Edge from him, and returned his Precept in haec verba.  Cl. Cr. 
Virtute, etc.  L. H. Stew. 
Call the Sergeant at Arms to return his Precept.  Cl. Cr. 
Make Proclamation.  Sergeant. 
O Yes, Roger Harfnet Esq Sergeant 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 Conwallis by thee summoned, to be heard this day, on pain and peril as will fall thereon.  
He delivered his Precept returned with a Schedule annexed thus;  Cl. Cr. 
Virtute, etc. Make Proclamation.  Sergeant. 
O Yes, All Marquesses, Earls, Viscount's, and Barons of this Realm of England, Peers of Charles Lord Conwallis, which by Commandment of the Lord High Steward of England, are summoned to appear this day, and to be present in Court, and to answer to your Names, as you are called, every one upon pain and peril as will fall thereon.  
Then the Panel was called over, the number of Peers summoned were 35. in order as followeth,  
Thomas Earl of Danby, Lord High Treasurer of England, etc.  
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 Conwallis.  
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 hath 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.  
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 Indictment 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 surprise you, so 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 Lordships, 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.  
Harken therefore to your Indictment with quietness and attention, observe what the Witness 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 notice; and when the time comes, assure yourself you shall be heard, not only with Patience, but with Candour too.  
And then what Judgement soever my Lords will give you, yourself will (and all the World) be forced to acknowledge the Justice and Equity of their Judgement, and the Righteousness of all their Lordships Proceedings.  Read the Indictment. Cl. Cr. 
Charles Lord Conwallis, Thou standest Indicted in the County of Middlesex by the Name of, etc. How sayest thou Charles Lord Conwallis, Art thou guilty of this Felony and Murder whereof thou standest Indicted, Or not guilty?  Lord Conw. 
Not Guilty.  Cl. Cr. 
How wilt thou be tried?  Ld. Con. 
By God and my Peers.  
Then my Lord High Steward addressed himself to the Lords thus,  Ld. 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 Lordship's 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 Privilege 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 Godwyn 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 the 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 Fact with all the Circumstances, whereby it is to receive its true and its proper Doom. Your Lordships are too just, to let pity make any abatement 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, aught to be so very evident and so plain, that all the Council in the world should not be able to answer 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 diligently, and when that is done, it is impossible but the Judgement 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.  Cler. Cr. 
Make Proclamation.  Serj. 
O yes, if any will give Evidence for our Sovereign Lord the King, against Charles Lord Conwallis, 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. Serj. Maynard. 
Then Serj. Maynard the King's Serj. at Law, began thus,  
May it please your Grace, my Lord High Steward of England and this Great and Noble Assembly;  
The Prisoner at the Bar, Charles Lord Conwallis 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 18. 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.  
Sir William Jones the King's Attorney General then spoke thus.  Attorn. Gener. 
May it place 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 decreed, that whoso sheddeth man's Blood, by Man shall his Blood be shed. Whether this Noble Lord be guilty of it, remains upon your 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 Conwallis.  
For I know your Lordships have observed the Indictment, by which it is alleged that the hand of Mr. Gerrard did the Fact: But my Lords, if we shall make it out that my Lord Conwallis did concur to this Act, and had in himself at that time an Intent to be a Murderer; than it will be declared by his Grace my Lord High Steward, and my Lords the Judges, that though his hand and did it not, yet he is equally guilty as if it had.  
Now to make out the Charge against him, our Evidence will be shortly thus;  
On the 18. of May last, Early in the Morning, between the hours of one and two came down two Gentlemen with three Footmen behind 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 perceived by the course of the Evidence; They were my Lord Conwallis and Mr. Gerrard coming down to 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 lied, 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 a 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 hand not drawn, and then was pelased 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 threatenings 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 to 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 Conwallis and Mr. Gerrard remaining on the Top of the Staircase, (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 show the concern that Noble Lord the Prisoner at 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 ask a Civil kindness from him, they again called to shoot him and they would bare 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 run 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 cried 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 descending the Stairs that (whether with the Blow or 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 some body, 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 Conwallis stood, and the place were the Boy was killed. Of what consequence that may be, I leave to your Graces 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 was spoken but by one of the Gentlemen.  
They could not swear, who where the Persons, because of the darkness of the time.  
The Boy who was the Companion of him that was slain, and that used the 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?)  
Then Mr. Attorney desired to call my Lord Conwallis' own two Footmen who had been Indicted and acquitted at the King's Bench Bar.  Lord High Stew. 
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 sworn, who fixed it upon the Person of Mr. Gerrard and swore that my Lord Conwallis 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.  Lord High 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.  Ld. Conwallis. 
Then the Prisoner at the Bar confessed himself to have been in the Company that Night when this accident happened, which he hoped would be a warning to him to shun such disorders hereafter; but that he had no evil Intention, and but one witness swore that both of them would have killed the Centinel, that he was not conscious to himself to have had a hand in it, and therefore withdrew not himself, but yielded himself to the Coroner the next day (which he proved by the Coroner himself) and did therefore in trust of his Innocency submit himself to the Judgement of his Grace and his Peers:  
Which being done, Sir Francis Winnington, the King's Solicitor General, summed up the Evidence in this manner;  Solicitor General. 
May it please your Grace, my Lord High Steward of England, and my Noble Lords the Peers of the Prisoner at the Bar.  
According to the duty of my Place I am to repeat the King's Evidence and state it to your Grace and these Noble Lords, and submit to your great Judgements how far it will go for the Proof of this Crime; wherein I shall observe the Duty of all Honest Men, which is to do nothing either to wrest any thing in disadvantage of the Prisoner out of the King's Evidence to go farther than it ought, nor shall omit any thing that shall require your Grace and the Noble Lords Justice; for we come to seek 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 Noble Lord stands accused of, and it is for Murder, wherein our Law takes notice, that Murder is 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 humily 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 Hands of Violence seized him and killed him, Let us then see how the Evidence brings it home to 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 actually, for it is by two Witnesses; the Footmen swore 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 he 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 him, Centinel, we'll 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 intent 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 shows any Endeavours of the Prisoner at the Bar, to prevent the other, or disprove of his Actions; If he had given an account of that, he had silenced Justice: But when they were all together, he 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 Person 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 stayed 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, till the Bill came to this great Tribunal; where I doubt not but your Grace and these Noble Lords will give a righteous and just Judgement.  Then Serj. Maynard concluded Thus; Serj. Maynard. 
May it please your Grace, my Lord High Setward 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 provocation 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 came 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 dam 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 Circumstanes of the Case; that all were guilty of much, is no doubt; but who, of the murder, is the question; And I humble 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, 
Sanders Case in Plowden, fol. 473.  with an intention to kill his wife, and she not knowing of the Poison, gave some of it to her Chlid, of which it died, though he had no design to kill the Child, yet, the malice he had 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 made in my Lord's Case, That at the particular time wherein 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 Dacres of the South, 
Anno 33 H. 8. Coke, 3 Inst. fol. 211.  who with some other 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 left both his Lands and his Life for it. But here my Lord Conwallis 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 some Body: now, no one speaks to any thing of my Lords 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 inquire, and without all doubt will give a clear Verdict, according to Justice and Honour.  Lord High Stew. 
My Lords, you have heard the Evidence of your Lordships; Please, to go and consider of it, you may.  
Then the Prisoner withdrew into his 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; there is a question in Law, of which some of my Lords desire to receive satisfaction, before they can give in their full Verdict: acd 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.  Lord H. Stew. 
If your Lordship's 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, 
Cook Inst fol. 3, 0. Pasch. 20. Hen.  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 Lordships, is, that he ought to be present at the stating of the Question.  
Call the Prisoner to the Bar.  
Who being come, my Lord spoke thus to him:  Lord High Steward. 
My Lord Conwallis, My Lords the Peers, since they have withdrawn, have 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?  
It was taken notice of here, that by opening the matter by Mr. Solicitor, the matter of Murder was explained, 
Earl of Danby.  to be meant by having a prepensed Malice, and in that Case it was opened to us, that any Persons then 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 Manslaughter, 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.  Lord High Steward. 
My Lords the Judges, I take it, the doubt proposed to you, is this; whether or no, those that are present, and have contributed 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.  Judges. 
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 with 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 seriatim, beginning at the Puisne Lord in the following orders, they answering, standing bare with their hands on their Breasts.  Lord High Steward. 
My Lord Duras, Is Charles Lord Conwallis 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: 

My Lord Butler, not guilty.  
Lord _____ not guilty.  
Lord Maynard, not guilty of Murder, but guilty of Manslaughter.  
Lord Paget, not guilty.  
Lord Berkly, not guilty of Murder, but guilty of Manslaughter.  
Lord Newport, not guilty.  
Lord Hallifax, not guilty.  
Lord Viscount Cambden, not guilty.  
Lord Guildford not guilty.  
Lord Alisbury, not guilty of Murder, but guilty of Manslaughter.  
Lord Craven, not guilty.  
Lord Bath, not guilty.  
Lord Clarendon, not guilty.  
Lord Sunderland, not guilty.  
Lord Peterborough, not guilty.  
Lord Devonshire, not guilty.  
Lord Northampton, not guilty.  
Lord Bridgwater, not guilty.  
Lord Dorset, not guilty.  
Lord Suffolk, not guilty.  
Lord Bedford, not guilty.  
Lord Derby, not guilty.  
Lord Kent, not guilty.  
Lord Oxford, not guilty.  
Lord Arlington, not guilty.  
Lord Brereton, not guilty.  
Lord Lindsey, not guilty of Murder, but of Manslaughter.  
Lord Dorchester, not guilty.  
Lord Anglesey, not guilty of Murder, but of Manslaughter.  
Lord 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 Axe towards him, while my Lord High Steward spoke thus unto him,  Lord High Steward. 
My Lord Conwallis, 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 be discharged.  Cl. Cr. 
Make Proclamation.  Serj. 
O Yes, my Lord High Steward of England willeth and commandeth all Persons, to depart hence in God's Peace and the Kings; for my Lord High Steward of, England his Grace doth dissolve his Commission.  God save the King. 
At which words my Lord High Steward holding the white Staff (which was delivered him by the Usher of the Black Rod on his Knees) in both hands over his head, snapped it in two, and the Assembly broke up.  
FINIS