Tried for the Murder of Nathaniel Cony by his Brother Peers in 1678 and found guilty of Manslaughter later
AN indictment for murder against a peer, which necessitated his being tried by his brother peers, occurred in 1678, accused being Philip, Earl of Pembroke and Montgomery, and the dead man Nathaniel Cony, gentleman.
The Lords came from their House above, in their usual order, to the court erected for them in Westminster Hall; and the Lord High Steward's commission being read, as also the certiorari to the commissioners, before whom the indictment was found, and the return thereof, the Constable of the Tower was commanded to return his precept, and bring his prisoner to the bar. The Constable of the Tower being a peer, Sir John Robinson, his lieutenant, brought the Earl of Pembroke to the bar; after which the Lord High Steward made a speech to the prisoner, wherein he acquainted him that he stood charged with no less a crime than murder by the grand jury of the county of Middlesex, who were all men of quality; but that this was no more than an accusation, upon which their Lordships should not prejudge him, the examination of the grand jury having been but partial. That his lordship was now to be tried in full Parliament, and not by a select number of Lords. That the being made a spectacle to such august assembly, and having his faults and weaknesses exposed, must be very mortifying; and it behoved his lordship to recollect himself, and use his utmost caution in his defence, but advised him not to let the disgrace of standing as a felon at the bar too much deject him, or the terrors of justice amaze him; for whatever might lawfully be hoped for, his lordship might expect from the peers; and if he were dismayed, when he considered how inexorable the rule of law was in the case of blood (which their Lordships indeed could not depart from), yet it might be a support to him to consider that nothing but plain and positive proof, and such as deserved to be called evidence, would be received against him. That their Lordships thought themselves bound in honour to be counsel for him in matters of law; and that, though there were counsel to plead against him, no skill or arguments could pervert their Lordships' justice. He should not fall by the charms of eloquence, or be depressed by anything but the burden of his crime, and even as to that all candid allowances would be made.
Then the prisoner was arraigned, and held up his hand. Mr Richard Savage deposed that, being in company with my Lord Pembroke at Mr Long's in the Haymarket on 4th of February, 1678, and Mr Cony making a great noise at the bar, my lord looked out at the door of the room where they were, and seeing Mr Cony, invited him and his friend Mr Goring into the room, and after some time falling into discourse, Mr Goring used some impertinent language to my lord, and told his lordship he was as good or a better gentleman than he; upon which my lord threw a glass of wine in Goring's face, and stepped back and drew his sword; and Goring being about to draw his, the deponent took it from him and broke it, and persuaded my lord to put up his sword again; but to prevent more words, the deponent shoved Mr Goring out of the room, and while the deponent was thrusting him out he heard a bustle be hind him, and, leaving the drawer to keep Mr Goring out, he turned, and saw my Lord Pembroke strike Mr Cony, who immediately fell down, and then my lord gave him a kick; and then, finding Mr Cony did not stir, my lord and the deponent took him off the ground and laid him on the chairs, and covered him up warm.
THE ATTORNEY-GENERAL: Did my lord kick him but once?
SAVAGE: My lord kicked him but once that I saw, and that was on the body, and not with a very great force. We chafed his temples, and he opened his eyes, but did not speak; when I asked him if he knew me he shook his head as if he did, and then closed his eyes again.
THE ATTORNEY-GENERAL: What condition was he in before that accident?
SAVAGE: He was very drunk, and, I think, proposed some thing about play to my lord; but how my lord came to strike him I cannot tell, for I was putting Goring out of the room.
Similar evidence and evidence as to the dead man's internal injuries having been given, the Lord High Steward asked: Will your lordship say anything for yourself?
EARL OF PEMBROKE: I have nothing more to say, my Lord.
Mr Solicitor having summed up the evidence for the King, the Lords went to their House above, and after two hours' debate returned, and having taken their places, the Lord High Steward, beginning with the puisne baron (my Lord Butler), demanded of their Lordships severally in their order if Philip, Earl of Pembroke and Montgomery, were guilty of the felony and murder whereof he stood indicted, or not guilty. And my Lord High Steward having numbered them, declared that six of their Lordships had found the prisoner guilty of murder, eighteen had found him not guilty, and forty had found him guilty of manslaughter. Then the prisoner was commanded to be brought to the bar again, and the Lord High Steward acquainted him that the judgment of the Lords was, that he was guilty of manslaughter; and demanded what he could say why judgment should not pass upon him to die, according to law.
The Earl of Pembroke answered that he claimed the privilege of the statute.
The Lord High Steward told him he must have it; for as by the Act clergy was allowed to a commoner by reading and burning in the hand, a peer convicted of such felony was to be delivered without either; but his lordship would do well to take notice that no man could have the benefit of that statute but once.