[31] Charles, fifth Baron Mohun (1675?-1712), was the eldest son of the
fourth baron, who died from a wound received in a duel when his son was
about two years old. He fought his first duel in 1692, breaking out of
his lodgings, where he was confined in consequence of a quarrel over
dice, for the purpose, with the assistance of the Earl of Warwick of the
present case, the grandson of the Lord Holland of the Civil War. This
encounter ended in both combatants being disarmed. Two days later he
abetted in the murder of Mountfort, an actor. One Captain Hill was in
love with Mrs. Bracegirdle, the famous actress, and supposed that he had
cause to be jealous of the attentions she received from Mountfort, the
equally eminent actor. Accordingly Hill and Mohun formed a plan
(estimated to cost L50 in all) to carry off the lady as she came out of
the theatre: and providing themselves with a coach-and-six and a body of
soldiers set out on the enterprise. They missed Mrs. Bracegirdle at the
theatre, but found her by chance coming out of a house in Drury Lane
where she had supped. The attempt to carry her off in the coach failed,
owing to the vigorous resistance made by her friends. Hill and Mohun,
however, were allowed to escort her to her lodgings in Howard Street,
where they saw her safely home. Mountfort lived in Norfolk Street, at
the bottom of Howard Street; and as he was passing down the latter some
two hours later, he was accosted by Mohun in a more or less friendly
way; but while they were talking together, he was attacked and killed by
Hill, who did not give him time to draw his sword. Hill fled, but Mohun
was tried by his peers in Westminster Hall, January 1692-93. The trial
excited great interest partly owing to the youth of the prisoner, and on
a question being raised as to the degree of complicity necessary to
constitute his guilt, he was acquitted. A report of the trial will be
found in _State Trials_, xii. 950. There are also some picturesque
references to it in Chapter xix. of Macaulay's _History_. Mohun fought
another duel in 1694, served for two years in Flanders, returned to
England, and fought a duel with Captain Bingham in St. James's Park,
which was interrupted by the sentries. The same year he was present at
the death of Captain Hill, in the Rummer Tavern. The present case
occurred in 1698, and seems to have closed his career as a rake. He was
sent under Lord Macclesfield on a mission to present the
Electress-Dowager Sophia with a copy of the Act of Succession, and he
frequently took part in debates in the House of Lords. After Lord
Macclesfield's death he became entangled in a long course of litigation
with the Duke of Hamilton; and on their meeting in Master's Chambers,
remarks passed between them which led to a duel, when both were killed.
The Tories suggested that the Whigs had arranged the duel in order to
get rid of Mohun because they were tired of him, and Hamilton, because
they wanted to prevent his projected embassy to France.
[32] John Lord Somers (1651-1716) was born at Whiteladies, near
Worcester, educated at Trinity College, Oxford, and called in 1676. He
appeared as junior counsel in the trial of the Seven Bishops, at the
instance of Pollexfen (see vol. i. p. 241), and took a conspicuous part
in the settlement of the monarchy after the Revolution, being an
influential member of the Committee which drafted the Declaration of
Rights. He became Solicitor-General in 1689, and Attorney-General in
1692, in which capacity it is curious to notice that he conducted the
prosecution of Lord Mohun for the murder of Mountfort (see _ante_, p.
60). He became William III.'s first Lord Keeper in 1692-3, and Lord
Chancellor in 1697. During all this time he was one of William's most
trusted advisers, and was consulted by him on the most confidential
questions relating to foreign policy. He was also familiar with the
leading literary and scientific men of his time, being responsible for
Addison's pension, and receiving the dedication of the _Tale of a Tub_
from Swift. He also conferred favours on Rymer and Madox. He resigned
the Great Seal in 1700 after a motion for his perpetual exclusion from
the presence of the King had been defeated by a small majority in the
House of Commons; having already lost the King's confidence by the
position he adopted in regard to William's propositions for a standing
army, and attracted the hostility of the country partly by his
opposition to the bill for the resumption of the grants of forfeited
Irish estates. He played a conspicuous part in the reign of Queen Anne
as the head of the Whig junto formed at the beginning of that reign, but
never resumed office.
[33] Sir Nathan Wright (1653-1721), born of an Essex family, was
educated at Emmanuel College, and was called in 1677. He was junior
counsel for the Crown in the trial of the Seven Bishops, and opened the
pleadings. He became Serjeant in 1692. On the retirement of Lord Somers
in 1700, a difficulty was found in providing a successor, and eventually
the post of Lord Chancellor was offered to, and accepted by, Wright. He
enjoyed no reputation, good or bad, as a judge, except that he was very
slow, and generally considered unfit for the place. After holding office
for five years he was dismissed on the accession to power by the Whigs
in 1705. Speaking of his appointment as Lord Chancellor, Lord Campbell
says, 'The occasional occurrence of such elevations seems wisely
contrived by Providence to humble the vanity of those who succeed in
public life, and to soften the mortification of those who fail.'
[34] Thomas Lord Trevor (1659?-1730) was the son of a Secretary of State
of Charles II. He was called in 1680, became a bencher in 1689,
Solicitor-General in 1692, Attorney-General in 1695. He refused to
succeed Lord Somers in 1700; but in 1701 succeeded Sir George Treby as
Chief-Justice of the Common Pleas. He was re-appointed by Queen Anne,
and was one of the twelve peers created by her in 1711 to create a
majority in the House of Lords. He was removed from office in 1714 on
the accession of George I.; but leaving the Tory party, which he had
joined in Anne's reign, became Lord Privy Seal in 1726, and President of
the Council in 1730, but died six weeks afterwards. He enjoyed a
reputation as a good judge; but is chiefly remembered for his proper
conduct of Crown prosecutions as Attorney-General after the Revolution.
[35] Benefit of clergy was originally the right of the clergy to be
exempt from the jurisdiction of the lay courts, and to be handed over to
the ordinary to make 'purgation.' This the accused clerk did by swearing
to his own innocence and producing twelve compurgators who swore to the
same effect. He was then 'usually acquitted' by a jury of twelve clerks;
but otherwise he was degraded and put to penance. The right itself was
gradually restricted: partly by a construction of the Statute of
Westminster the First (1275), by which it was held to be necessary that
the clerk should be indicted before he could claim his benefit; partly
by the practice prevailing in the time of Henry VI. that he must first
be convicted. Meanwhile its scope had been largely increased by its
extension in 1360 to all lay clerks, who were taken to mean persons
capable of reading. The law, however, which was applicable to the
present case depended on two statutes, 4 Henry VII., c. 13, and 18
Elizabeth, c. 7; by the former any person allowed his clergy was to be
branded, and was not to be allowed it again unless he was actually in
orders; by the latter purgation was abolished, and any person taking
benefit of clergy was to be discharged from prison subject to the power
of the judge to imprison him for a year. By a statute of Edward _VI._
also, a peer ('though he cannot read') was allowed a privilege
equivalent to benefit of clergy, but was not to be branded.
A certain number of offences were excluded from benefit of clergy during
earlier times, and a great number during the eighteenth century, at the
beginning of which the privilege was extended to all prisoners. Finally,
the system was abolished in 1827. How this system, occupying as it did
an important position in the criminal procedure of this country till a
comparatively modern date, impresses a lawyer of the present day, may
best be described in the words of Sir James Stephen:--'Of this branch of
the law, Blackstone characteristically remarks that the English
legislature "in the course of a long and laborious process, extracted by
noble alchemy rich medicines out of poisonous ingredients." According to
our modern views it would be more correct to say that the rule and the
exception were in their origin equally crude and barbarous, that by a
long series of awkward and intricate changes they were at last worked
into a system which was abolished in a manner as clumsy as that in which
it was constructed' (_History of the Criminal Law_, vol. i. p. 458)....
'The result of this was to bring about, for a great length of time, a
state of things which must have reduced the administration of justice to
a sort of farce. Till 1487 any one who knew how to read might commit
murder as often as he pleased, with no other result, than that of being
delivered to the ordinary to make his purgation, with the chance of
being delivered to him _absque purgatione_. That this should have been
the law for several centuries seems hardly credible, but there is no
doubt that it was. Even after 1487, a man who could read could commit
murder once with no other punishment than that of having M. branded on
the brawn of his left thumb, and if he was a clerk in orders he could,
till 1547, commit any number of murders apparently without being branded
more than once' (_Ibid._, vol. i. p. 462).
[36] Convicted felons were incompetent as witnesses till the passing of
Lord Denman's Act in 1843.
[37] Sir John Hawles (1645-1716) was born in Salisbury of a Dorsetshire
family. He was educated at Winchester and Queen's College, Oxford. In
1689 he sat in the House of Commons for Old Sarum; he succeeded Sir
Thomas Trevor as Solicitor-General in 1695 and so remained till 1702. He
afterwards represented various western boroughs in Parliament, most of
them Cornish. He was one of the managers of Sacheverell's impeachment in
1710. He died at Upwinborne.
[38] Sir Thomas Powys (1649-1719), of a Shropshire family, was educated
at Shrewsbury, and was called in 1673. He became Solicitor-General in
1686, and as a supporter of the dispensing power became Attorney-General
in 1687. As such he conducted the prosecution of the Seven Bishops. He
frequently appears for the defence in State Trials during the reign of
William III. He represented Ludlow in Parliament from 1701 to 1713, was
made a Serjeant at the beginning of Anne's reign, and a Judge of the
Queen's Bench in 1713. He was, however, removed from the bench on the
accession of George I.
[39] To a modern practitioner to whom benefit of clergy is merely an
archaeological puzzle, it would seem that the proper argument was that
the imprisonment was a punishment, and that as French had not been
imprisoned he was quit of the law; but two centuries make a great deal
of difference in arguments on points of law.
[40] Sir George Treby (1644-1700), the son of a Devon gentleman, entered
Exeter College in 1661, and was called in 1671. He represented his
native town of Plympton in the House of Commons in both Parliaments in
1679, and was a manager in the impeachment of Lord Stafford. He
succeeded Jeffreys as Recorder of London in 1680, but was removed after
the success of the _Quo Warranto_ proceedings. He sat in the Oxford
Parliament of 1681, and resumed his seat as Recorder after the arrival
of the Prince of Orange. He afterwards re-entered Parliament, succeeded
Pollexfen as Solicitor-General in 1689, as Attorney-General in the same
year, and as Lord Chief-Justice of the Common Pleas in 1692.
[41] Edward Ward was called in 1670, and was engaged to assist Lord
Russell in his trial. He was a candidate for the office of Sheriff of
London in the famous election of 1683 (_ante_, pp. 3, 15). He refused a
judgeship at the Revolution; became Attorney-General in 1693, and Chief
Baron in 1695. He died in 1714. He was an ancestor of the late Mr. G.
Ward Hunt.
[42] Sir Edward Nevill was called in 1658. He was knighted in 1681, on
presenting an address to Charles II. as Recorder of Bath. He became
Serjeant in 1684, and a Baron of the Exchequer in 1685. He was dismissed
six months afterwards for refusing to support the royal assumption of
the dispensing power. Fosse gives a striking extract from his evidence
before Parliament in 1689, to show how the power of the Executive was
actually brought to bear on the Stewart judges. He was restored to his
office after the Revolution, removed to the Common Pleas in 1691, and
died in 1705.