OLD CASES REVIVED.

THE TRIAL OF LORDS WARWICK AND MOHUN FOR THE MURDER OF CAPTAIN COOTE.

FAMOUS

AMOUS cases usually derive their celebrity either from the importance of the issue or the intricacy and mystery of the facts, but there is

a third class in which the interest arises from the

sudden and powerful side-light they throw upon life and manners in by-gone times. Of such is the trial which we have now to sketch. Thackeray, with the instinct of a great master, has not failed to avail himself of its strong colors in " to our thinking the most perfect of his works, and Esmond," no part of that exquisite tale is more striking than the chapter in which he describes the duel between Castlewood and Mohun. principal incidents from our present trial, he has Although taking the used the novelist's license to mix them with circumstances drawn from the subsequent encounter between Mohun and the Duke of Hamilton; a license which is, of course, not open to us in our more humble capacity of chroniclers of facts.

In the spring of 1699 the House of Lords assem bled in solemn conclave to try two members of their august body, the Earl of Warwick and Lord Mohun, for the murder of Captain Coote. Mohun

was the most notorious "hard case" of an age prolific in rakish scoundrels. Once before he had appeared at the same bar on a similar charge. Whilst attempting with a worthy associate to abduct the famous actress, Mrs. Bracegirdle, her protector, Captain Mountford, had been run through the body, but as Mohun had not actually dealt the fatal blow, his peers, by a vote of sixty-nine to fourteen, acquitted him of the crime, and he was restored to a society of which he was the pest.

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Warwick had not attained an equal distinction of infamy in public estimation, but there was, if our reading of the facts be correct, little to choose between them. Both were emphatically 66 men

about town," and passed the greater part of their waking hours at the card table, in the bagnio, or running amuck through the streets of London with the notorious and dreaded Mohocks. Amongst their chosen associates was one Coote, an admirable specimen of the "led captain,' "familiar to the reader of the novels of that day; a genus represented amongst ourselves by the toady and tufthunter. Coote was Lord Warwick's particular parasite, and as we have said, it was for his death that these two worthy noblemen found themselves arraigned. On March 28, 1699, the lords filed in stately procession into Westminster Hall, duly attended by clerks, masters in chancery, sergeant-atarms, ushers and the common law judges; the lord chancellor, Somers, Macaulay's great favorite (who was also lord high steward for the nonce), following in solitary dignity in the rear. All standing uncovered the royal commission was read, and after a long perusal of official records in barbarous Latin the Earl of Warwick was brought to the bar. lord high steward shortly addressed him, informing him that he stood indicted by the grand jury of Middlesex, and that whilst he could not, as the law then stood, have the assistance of counsel upon matters of fact, no evidence would be received against him but such as was warranted by law, no weight would be laid upon the evidence but such as was agreeable to justice, and that he might as

The

swords were put up. Coote, violently excited, was hot for fighting, but Warwick and Mohun threatened to send for a file of musketeers. They ultimately persuaded him to get into a chair, and each of them also taking chairs the three started off together. The other three quickly followed, Dockwra exclaiming "they did not care a farthing for them, they would fight them at any time." Cawthorne gave his evidence in a most confused and contradictory manner, and got roughly handled on all sides, especially by the lord high steward.

The next proof was that of the chairmen, the first being Browne, who carried Coote. He deposed that Coote gave orders to be taken to Leicester Square. Warwick and Mohun protested and begged him to go home with them, and "leave it alone till the morning," but he would not hear them. On their way Mohun stopped the chairs, and again resumed his endeavors to pacify Coote, but whilst they were talking the chairs of the other three passed by, and Coote instantly ordered his bearers to take up and hurry to the square, threatening to run them through if they went no faster. Arrived at the square Mohun paid the fares, and the three comrades entered the enclosure. Honest Browne filled and lighted his pipe, and was just ready to wend his peaceable way homeward when he heard a cry for chairs. With much ado getting his cumbrous vehicle over the railings, and making for the spot whence the cries proceeded (it being a very dark night and impossible to see) he found two men holding up Coote in their arms, and crying out "My dear Coote! My dear Coote!" Coote was covered with blood. They endeavored to put him in the chair, promising Browne £100 to make amends for his ruined sedan, but Coote would not be put in, and in the course of their struggles the chair was broken. Then the watch was called, who strictly following Dogberry's time-hallowed advice, “would not come near, for they said it was out of their watch;" "so," continues Browne, "I staid about half an hour with my chair broken, and afterward I was laid hold upon, both I and my partner, and we were kept till next night eleven o'clock, and that is all the satisfaction I have had for my chair and everything." Of one thing Browne was very certain, viz.: that Warwick was not one of those holding Coote up. Amongst the other chairmen we need only notice the evidence of Applegate, who, after carrying Mohun to the square, heard the second call of chairs, and took up Captain French, desperately wounded. Him they carried to the bagnio in Long Acre, Warwick following in another chair. When they got to the bagnio French was so weak with loss of blood that he fell to the ground.

Next came Pomfret, the servant at the bagnio, who let Warwick and French in. He deposed that Warwick's sword, which he still held in his hand, was covered with blood, whilst French's sword was clean. The surgeon was called up to dress French's wounds, and Warwick gave strict orders that none

should be admitted to the house, and that he should be denied all inquirers, but in about half an hour James and Dockwra arriving, Warwick himself let them in. As to the swords it appeared pretty clear that Warwick's was the only one bloody, and also that it was the only broad sword, though it must not be forgotten that nothing was seen of Mohun after the affray, nor was his sword ever accounted for.

The surgeon who examined Coote's body after death deposed to finding two wounds, one on the breast about one-half inch wide and five inches deep, and the other under the ribs, made from behind, and about one inch wide and six inches deep, but though much pressed, he would not say that the difference in breadth denoted that the latter wound had been made by a broad sword.

Some minor evidence closed the case for the crown, and Warwick opened his defense. He alleged the fatal quarrel to have arisen from an unprovoked insult given by Coote to French, and charged the death on the latter. He referred to the trial of French, James and Dockwra at the old Bailey, when they were convicted of manslaughter only, and dwelt with somewhat suspicious emphasis upon his long friendship with the deceased, and the many favors he had conferred upon him, amongst others lending him a hundred guineas toward buying an ensign's place in the guards. His evidence consisted merely of witnesses to prove this intimacy, such as that he used constantly to pay Coote's reckoning, and once settled the tailor's bill when that irate tradesman had arrested the gallant captain. From such an expensive intimacy he might be well content to be delivered, but it does not seem to have occurred to the prisoner that the evidence could be looked at from this point of view.

When however Warwick proposed to call Captain French a battle royal arose amongst the lawyers. The objection of the crown was that a man convicted of felony, and not pardoned, was incompetent to testify, and that his having the benefit of clergy did not remove this disability. The point was most elaborately and learnedly argued by Sir Thomas Poroys for the prisoner, and by the attorney-general for the crown, and the peers calling for the advice of the judges the lord chief justice, Treby, delivered a long opinion, going into the whole subject of benefit of clergy, and concluding against the competency of the witness. Another point then arose, Warwick submitting that he being on Coote's side in the affray could not be held guilty in an equal degree with those who were his opponents, but this was too flimsy, and soon fell through.

Ultimately the prisoner submitted his whole defence without further comment, and the solicitorgeneral (Sir John Hawley) rose to reply. His voice was too weak to be heard by the more distant peers, and there were calls for some one else to sum up, especially for Mr. Cowper (whose acquaintance we made in our last sketch). Mr. Solicitor however did not suffer himself to be sat upon, and acquitted

If the issue of marriage depended upon evidence that there was a marriage according to the forms of the English law, the plaintiffs could not recover. *** * Mr. and Mrs. Hynes, as has been stated, were in Paris during the summer of 1871. * * → The jury, in addition to their general verdict, made a special finding that the parties, while in France, entered into an agreement in presenti to take each other as man and wife, and thenceforward cohabited together as such in France and England. There is no direct evidence of the interchange of consents during their stay in Paris. There was evidence that they lived together there in the apparent relation of marriage, and assuming that what occurred between them in Cleveland street did not constitute a valid marriage by the law of this State, for the reason that the law of England can only be resorted to, to determine the effect of that transaction, we are nevertheless of the opinion that the jury were authorized to find that in France the requisite consents were interchanged and that the parties then and there became husband and wife.” That this authority is a strong one is apparent. It was highly improbable that the parties, having performed what they seemed to consider a valid marriage ceremony, should go through a second ceremony in Paris while there.

Next in order in point of strength comes Donnelly v. Donnelly. In that case it appeared that a man, knowing his wife to be alive, entered into a form of marriage with another woman who did not know of the other marriage. They continued to cohabit together as husband and wife, until after the death of the first wife. The court, on appeal, sustained a finding of a valid marriage between them subsequent to the death of the first wife. The Breadalbane case is a still stronger authority on this point. It was decided by the House of Lords after very great consideration. The question involved was one of legitimacy, depending upon the fact whether James Campbell, who in 1781 eloped with the wife of one Ludlow, and with whom Campbell cohabited until his death in 1806, was married to her after the death of her first husband in 1784, and prior to the birth of their eldest son in 1788. A marriage was celebrated between them in Scotland in 1782, which was clearly void, because of the existing marriage between Ludlow and Mrs. Ludlow. There was no direct evidence of the interchange of consents between James Campbell and his alleged wife after the death of her first husband, but they continued to reside in Scotland down to the birth of their eldest son, and were reputed to be husband and wife. It was certainly not very probable that the parties performed a second marriage ceremony or interchanged consents after the death of Ludlow, as they had already gone through one ceremony which they probably deemed sufficient. It was strenuously urged that the intercourse between the parties having been illicit in its origin, and the cohabitation having continued after the death of Ludlow without marked change in its character, the presumption was that it continued to be illicit down to and after the birth of the eldest son whose legitimacy was in question. But this argument was not allowed to prevail, Lord Cranworth saying: "In such circumstances we ought to infer, after their deaths, that at some time during the long period durwhich they lived together, and in some manner however informal, they did that which they could do without any difficulty, viz., enter into an agreement to be or become married persons, and so to acquire for themselves and their children the status which the evidence satisfies me they wished to enjoy." And Lord Westbury went even further, and declared that the interchange of consents must be inferred to have been given at the first moment when the parties are able to enter into the contract." There is no founda

tion," he says, "for the argument that the matrimonial consent must of necessity be referred to the commencement of the cohabitation, nor any warrant for the appellant's ingenious argument, that as the consent interchanged must be referred to some particular period, which he insisted was at the commencement of the cohabitation, and therefore insufficient, the cohabitation, which continued afterward without interruption, would warrant no other conclusion than that which would be warranted by the consent interchanged at a time when it was insufficient. I should undoubtedly oppose to that another, and I think a sounder rule and principle of law, namely, that you must infer the consent to have been given at the first moment when you find the parties able to enter into the contract." In all the foregoing cases and in the case to be reviewed next, the impediment to the formation of a matrimonial union at the inception of the cohabitation was the existence of a valid prior marriage between one of the parties and another person. But as in all these cases the conduct of the parties to the second union evinced a desire on their part to dwell together as husband and wife, the courts have, in every one of them, permitted and even urged a finding of a valid marriage after the impediment was removed. Indeed Lord Westbury boldly enunciated the doctrine in Campbell v. Campbell, that under such circumstances the law would presume a valid marriage at the very moment when the parties could lawfully marry. He says: "The conclusion therefore that I derive, and which unquestionably is consistent with the language of the cases which have been referred to is, that the consent between these parties was given, and that the marriage therefore in theory of law took place at the time, when by the death of the first husband they became competent to enter into the contract." Lord Westbury was clearly wrong in asserting that the law would presume the marriage to have made at the first possible moment. A finding of fact to that effect will be supported; but the question cannot be determined as a question of law. The authorities are uniform in holding that the issue of marriage is to be decided by the jury under these circumstances. Wilkinson v. Payne, 4 T. R. 468; Campbell v. Campbell, supra; Hynes v. McDermott, supra; Fenton v. Reed, supra; Rose v. Clark, supra; Donnelly v. Donnelly, supra; State v. Worthingham, 23 Miun. 528.

Of course extreme cases cau be imagined in which the court would be justified in taking the question from the jury and deciding it as a question of law. Some have arisen and will be discussed hereafter. We now come to two cases in which the presumption of marriage was indulged where the original connection between the parties was illicit, although it was very apparent that no marriage was ever made after the impediment to a legal marriage had been removed.

In Wilkinson v. Payne, 4 T. R. 468, it appeared that the parties to the marriage contract were both minors, and that the marriage between them was void because they had not obtained the consent of their parents. When the young man came of age his alleged wife was lying on her death bed, and in three weeks thereafter she died. But the jury found a valid marriage between them made during this short time, and on appeal the King's Bench refused to disturb the verdict. Lord Kenyon, C. J., remarked: "In this case, though the first marriage was defective, a subsequent one might have taken place. If there was any ground of presumption it is sufficient in a case like this. In this case the parties did not intend to elude the marriage act; but all their friends were fully informed of and concurred in the former marriage. And I think we should ill exercise the discretion vested in the court, if after the jury had presumed a subsequent legal marriage under all the circumstances of this case, we were

to set aside their verdict." The other case is De Thoren 7. Attorney-General, supra. It appeared in that case that one William E. Wall obtained on the 1st of July, 1862, a decree of divorce nisi dissolving his then marriage. This decree however did not become flual until the expiration of the time allowed for an appeal, and during all this time he was prohibited from marrying again, just the same as if no decree had been granted. In ignorance of his temporary disability he went through a ceremony of marriage with a Miss Ogg, on the 16th of July, 1862, before the time for appealing had expired, both parties believing that there was no obstacle to the marriage. The marriage was of course absolutely void. They continued to live together and cohabit as husband and wife after the expiration of the time to appeal. There was no evidence of an interchange of consents after the marriage in 1862, and neither of the parties ever had any suspicion prior to the husband's death of the invalidity of that marriage. Yet the court held that the parties must be presumed to have interchanged consents as soon as the impediment to their marriage was removed. In this case the presumption was indulged contrary to all probabilities. It is absurd to say that persons who consider themselves legally married will ever interchange consents a second time during their joint lives. Yet the decision is clearly correct. But we do not think that the true reason to support it was stated by the court in its opinion. It is opposed to all experience and knowledge of human nature, to assume that those who deem themselves lawfully married, will enter into a second marriage contract so long as this belief continues. The parties in this case unquestionably considered that they were husband and wife from the performance of the marriage ceremony in 1862 down to the time of the husband's death. It is therefore so highly improbable that the parties ever expressly entered into a second marriage contract that it would be doing violence to reason to presume so. But an express agreement is not necessary. Marriage does not differ in most jurisdictions, and it does not in Scotland, where these parties resided, from other contracts in the formalities requisite to its validity. Bishop says: "Not even words are in all circumstances necessary." 1 Bish. Mar. & Div., § 229.

Therefore if A and B. cohabittogether with the tacit understanding that they are then and ever thereafter are to be husband and wife, a valid marriage exists as much as if the understanding had been expressed in words. Now where two persons have so clearly manifested the desire to live together in a matrimonial union, as did the parties in this case, it is not only probable, it is absolutely certain that from the moment the impediment to their lawful marriage is removed down to the last day of their cohabitation,they mutually declare to each other by their daily conduct and intercourse that they are dwelling together, not in a state of concubinage, but in the sacred relation of

husband and wife.

In conclusion on this point the reasoning of the court in Yates v. Houston, 3 Tex. 433-450, will be quoted. Hemphill, C. J., says: “But admitting that their original intercourse was illicit with the knowledge of both parties, it would be urging the presump-| tion to an unreasonable extent to suppose that the unlawful character of the connection was unsusceptible of change, and that when all legal disabilities had ceased to operate, they would voluntarily decline all the houors, advantages and rights of matrimony, and prefer an association disgraceful to both parties, but peculiarly degrading to the female, and which inflicted upon their innocent offspring the stigma and penalties of illegitimacy. Let it be admitted that this woman had knowingly wandered from the paths of

virtue, and that in the weakness of human frailty she had originally yielded to the acts and seductions of the deceased; yet the conclusion does not necessarily follow that the latter would be unwilling to repair as far as possible the wrongs he had inflicted, or that the former would of choice continue in a position so humiliating. The judgment which would presume that erring humanity would not repent is too harsh to have a place in any beneficent system of law, and we cannot yield our assent to any such doctrine." See also Piers v. Piers, 2 H. L. Cas. 331, and observations of Campbell at pages 379-381.

The presumption of the continuance of an illicit cohabitation is not so easily overcome where it appears that the parties have manifested a preference for a meretricious union. In such a case the authorities seem to be uniform that in the absence of some evidence of a change in the relation between the parties they are presumed to continue in that relation. Lapsley v. Grierson, 1 H. L. Cas. 498; Cunninghams v. Cunninghams, 2 Dow. 482, 502; Collins v. Collins, 80 N. Y.9; Hyde v. Hyde, 3 Bradf. 509; Badger v. Badger, 88 N. Y. 553; Brinkley v. Brinkley, 50 id. 198; Williams v. Williams, 18 Am. Law Reg. (N. S.) 629; Barnum v. Barnum, 42 Md. 251; Redgrave v. Redgrave, 38 id. 93; Jones v. Jones, 45 id. 144; Port v. Port, 70 Ill. 484; State v. Worthingham, 23 Minn. 528; Floyd v. Calvert, 53 Miss. 37; Rundle v. Pegram, 49 id. 751; Yardley's Estate, 75 Penn. St. 207; Caujolle v. Ferrie, 23 N. Y. 90; Foster v. Hawley, 8 Hun, 68.

Where there is any evidence of a change the question of marriage then becomes a question of fact. Hynes v. DcDermott, 91 N. Y. 457-460; Hyde v. Hyde, 3 Bradf. 509-519; Williams v. Williams, supra; State v. Worthingham, 23 Minn. 528. In this last case the court said: "An intercourse originally unlawful and lustful from choice undoubtedly raises the presumption that its character remaius during its continuance. But this is a presumption, not of law, but of fact, for the consideration of the jury, in connection with the particular facts and circumstances of the case."

However it is not necessary, in order to establish a marriage in such a case, to adduce direct evidence of a marriage, or show when or under what circumstances the meretricious connection was converted into a matrimonial union. Badger v. Badger, 88 N. Y. 554; Canjolle v. Ferrie, supra; Hyde v. Hyde, supra; Physick's Estate, 4 Am. Law Reg. 418; Foster v. Hawley, 8 Hun, 68; Queen v. Millis, 10 Cl. & Fin. 749; Hynes v. McDermott, 91 N. Y. 451, 458, 462.

In Badger v. Badger the court say: "But a change may occur and be satisfactorily established, although the precise time or occasion cannot be clearly ascertained. If the facts show there was or must have been a change, that the illicit beginning has become transformed into a cohabitation matrimonial in its character, it is not imperative that we should be able to say precisely when or exactly why the change occurred."

As has been already stated, there are cases in which the question of marriage-the parties having exhibited a preference for an illicit connection-is one of law for the court. Such are the cases of Lapsley v. Grierson, 1 482, 502 H. L. Cas. 498; Cunninghams v. Cundinghams, 2 Dow.

The court in each of these cases decided that there was no valid marriage on the ground that there was nothing in the case to rebut the inference of a continuance of an illicit union voluntarily chosen in preference to the relation of husband and wife.

The true doctrine seems to be accurately stated in State v. Worthingham, in which the court said: "The point is presented by counsel for the State that no presumption of marriage can arise in this case from any

cohabitation of the parties occurring after the defendant's divorce, because of its illicit character in the be