make a clear confession.-Other impediments there were not a few, which might have been an interruption to this day's justice, had not God in his providence removed them.-But now, that I have given God the honour, let me also give it where it's next due, which is to the king our sovereign. This murder was no sooner committed, and brought to his majesty's ears, but his indignation (wherewith at first he was moved,) cast himself presently into a great deal of care and providence to have justice done.— First, came forth his proclamation somewhat of a rare form, and devised and in effect directed by his majesty himself, and with that he did prosecute the offenders (as it were) with the breath and blasts of his mouth. Then did his majesty stretch forth his long arms, (for kings you know have long arms) one of them to the sea, where he took Gray shipped for Sweden, who gave the

land, and took hold of Carliel, ere he was warin in his house, and brought him the length of this kingdom under such safe watch and custody, as he could have no means to escape, nor learn no lessons to stand mute; in which case perhaps this day's justice might have received a stop. So that I may conclude that his majesty hath shewed himself God's true lieutenant, and that he is no respecter of persons, but English, Scots, noblemen, fencer, (which is but an ignoble trade) are all to him alike in respect of justice.-Nay, I may say farther, that his majesty

and (if it needed) you have made so full an anatomy of it, out of your own feeling, as it cannot be matched by myself, or any man else out of a conceit.-This Christian and penitent course of yours, draws me thus far, that I agree, that even in extreme evils there are degrees: so this instance of your offence is not of the highest strain; for if you had sought to take away a man's life for his vineyard as Ahab did, or for envy as Cain did, or to possess his bed as David did, surely this offence had been more odious. Your temptation was revenge, which the more natural it is to man, the more have laws, both divine and human, sought to repress it: (mihi vindicta.) But in one thing you and I shall never agree, that generous spirits (you say) are hard to forgive; no, contrariwise, generous and magnanimous spirits are readiest to forgive; and it is a weakness and impotency of mind to be unable to forgive.-But to the purpose; how-first light of testimony; the other arm to Scotsoever murder may arise upon several motives less or more odious, yet the law both of God and man involves them in one degree; and therefore you may read that in Joab's case, which was a murder upon a revenge, and matched with your case; he for a dear brother, and you for a dear part of your own blood; yet there was a severe charge given, it shall not pass unpunished.'-And certainly the circumstance of time is heavy unto you; it is now five years since this unfortunate man, Turner, be it upon accident or despight, gave the provocation, which was the seed of your malice. All pas-hath had in this matter a kind of prophetical sions are assuaged with time; love, hatred, spirit; for at what time Carliel and Gray, and grief, &c. all fire burns out with time, if no you, my lord, yourself, were fled no man knew fewel be put to it for you to have been in the whither, to the four winds; the king ever spake gall of bitterness so long, and to have been in in a confident and undertaking manner, that a restless case of his blood, is a strange examwheresoever the offenders were in Europe, he ple. And I must tell you plainly, that I con- would produce them forth to justice; of which ceive you have sucked those affections of dwell-words God hath made him master.-Lastly, to ing in malice rather out of Italy, and outlandish manners, where you have conversed, than out of any part of this island of England and Scotland. But now farther, my lord, I would have you look a little upon this offence in the glass of God's judgment, that God may have the glory. You have friends and entertainment in foreign parts: it had been an easy thing for you to have set Carliel, or some other bloodhound on work, when your person had been beyond the seas; and so this news might have come to you in a pacquet, and you might have so looked on how the storm would pass but God bereaved you of this providence, and bound you here under the hand of a king, that is, though abundant in clemency, yet no less zealous of justice.-Again, when you came in at Whereupon Judgment being required for the Lambeth, you might have persisted in the de-king; Mr. Justice Yelverton gave Sentence of nial of the procurement of the fact, Carliel (a resolute man) might have cleared you: for they that are resolute in mischief, are commonly obstinate in concealing their procurers; and so nothing should be against you but presumption. But then God, to take away all obstruction of justice, gave you the grace (which ought indeed to be more comfort unto you than any evasion, or device, whereby you might have escaped) to

return to you, my lord, though your offence hath been great, your confession hath been free, and your behaviour and speech full of discretion; and this sheweth, that though you could not resist the temptation, yet you bear a generous and Christian mind, answerable to your noble family of which you are descended. This I commend in you, and take it to be an assured testimony of God's mercy and favour; in respect whereof all worldly things are but trash : and so it is fit for you, as your state now stand s, to account them.

Then being demanded, whether he would speak any more for himself, he said, no; only desired that the king might be made acquainted with what he had already said.

death against him as followeth :

"My Lord Sanquire; You are a nobleman of Scotland, and (as I have heard yourself say) a baron of above three hundred years antiquity; which I believe to be true. But now you have most wonderfully dishonoured the nobility of your ancient house by this unhappy action; an action of murder so base and so barbarous, as the like I never heard of, nor seant the like a

yet surely it is fit enough for a man of your merit and offence. And the law of England makes no difference of subjects in matters of felony for the manner of their deaths, when there is no difference of subjects in the manner of their offences; and not where, but how a man dieth, maketh to the purpose: for the way to Heaven is of like difference from all places. And, indeed, there is no death miserable, which the death of the soul doth not follow.--Death is the way of all the world, the passage of all the earth, and the end of all men; and not men alone, but all worldly things are mortal, the soul of man only excepted.-Therefore, my lord, provide carefully that your soul may have a good and godly departure from the body, which will surely be by your unfeigned confession and earnest repentance of all your sins, and especially of this most bloody, this most heinous and crying sin, by your humble calling and crying upon God for his mercy and forgiveness, and by confident and stedfast faith in Christ Jesus, to receive and accept it.-For repentance is an act of all acts, and faith in the mer cies of God is the Star that goeth before the face of repentance, and very exceeding available by these three syllables, peccavi. And so with this short exhortation I will end; and wish, whatsoever your life hath been heretofore, yet that your death may be happy now. And so I will proceed to Judgment.

man shall never read of.-The manner of it is such, as is exceeding strange: done upon the sudden! done in au instant! done with a pistol! done with your own pistol! under the colour of kindness: As Cain talked with his brother Abel, he rose up and slew him.-Your executioners of the murder left the poor miserable man that was murdered no time to defend himself; no time to pray for himself; scant any time to breathe out these last words, Lord have mercy apon me! The ground of this malice that you bore him grew not out of any offence that he ever willingly gave you, but out of the pride and haughtiness of your own self; for that in the false conceit of your own skill, you would needs importune him to that action, the sequel whereof did most unhappily breed your blemish, the loss of your eye. And you have prosecuted this malice very long; for you sollicited others, four or five years at the least, to have committed this foul and heinous murder. And this your fault is far greater than if you had committed the fact yourself; for then it had been but your own single murder only; but now have you made them who were the executioners of your malice, murderers also with you so you have made their bodies subject to the justice of man, and their souls subject to the justice of God, which, without his great mercy, they must endure. All these circumstances do exceedingly aggravate your offence.-This offence of yours is called one of the crying sins; for God said unto Cain, The voice of thy brothers blood' (a strange phrase, a voice of blood!) crieth unto me from the ground.'--And for the punishment of it, it is said elsewhere in the sacred word of God, That he that sheddeth man's blood, by ⚫ man shall his blood be shed.' Again, 'But this punishment of blood is not indeed to shed 'blood; for it is better that one should die by the law, than many without it.'--You are, my lord, to take a serious consideration of the short estate of your life wherein presently you stand; for by the justice of the law, you must suffer the pains of death, and be assuredly persuaded, the time is not far off: for though the king be On Monday following, being St. Peter's day, exceeding merciful, yet is he also exceeding just. the 29th of June, 1612, the lord Sanquire was And he hath had such an extraordinary care of brought from the prison somewhat carly in the justice in this case, that though it were plotted morning, into the Great Palace-yard, before by you, my lord, that the murderer should es- Westminster-hall great gate, there to suffer cape, and fly into his own country of Scotland, death on a gibbet erected for that purpose; far remote from the justice of the law of Eng-where being ascended the ladder, he spake to land; yet his majesty's care hath so pursued him, that there he was quickly apprehended, and that country could be no protection for him. Nay, his majesty most religiously, and most like a just prince, protested, that if he were in any part of Christendom to be found, he would surely have him; so zealous is he of justice in this so heinous an offence of murder. And in a matter that concerns justice, he respects not his own native nation of Scotland, more than he doth his own hereditary realm of England. Therefore, my lord, prepare yourself to die; and though the manner of your death be by the law of England unfitting (as yon perhaps may think) for a man of your honour and blood,

VOL. II.

"You have been indicted as accessary to wilful murder, as accessary in procuring the murder; and upon this indictment you have been arraigned, and upon your arraignment you pleaded Not Guilty; but since, upon better advisement and judgment, you have confessed the fact: The court therefore doth award, That you shall be bad from hence to your former place of imprisonment, and from thence to the place of execution, and there be hanged till you be dead. And God have mercy upon your soul."

And then the judge, speaking to the sheriff, said, Mr. Sheriff, see execution be done.

the people a good while, excusing himself for the fact no otherwise than formerly he had done at the King's-bench bar: Asking God and the world forgiveness for the same, protesting his detestation thereof, now that he truly. understood the foulness of it; affirming, that till he first was brought to his trial, the devil had so far blinded his understanding, that he could not apprehend that he had done amiss, or otherwise than was fitting for a man of his rank and quality, having been trained up in the wars, and lived the life of a soldier, which sort of men, he said, stood more on points of honour than religion. He humbly thanked God that had opened his eyes, and given him 3 c

the grace to see his offence, and truly to appre- | two chief-justices and chief-baron, and comhend the foulness of it., At length, he profess-manded there should be speedy proceeding ed himself to die a Roman catholic, and desir- against the lord Sanchar, according to law. ed all Roman catholics there present to pray To which the justices answered, That the lord for him. He said, that for worldly respects, he Sanchar was but an accessory in this case, and had long neglected the public profession of his therefore he (a) could not by law be convicted faith in that kind, and he thought God was before the principal is attainted; but if the angry with him for it; and he knew not but principal could be apprehended, then both God might inflict this just punishment upon might be attainted with more expedition than him for that neglect; and therefore he advised | could be, if the principal should be attainted all men that stood so affected in heart, not to by utlagary. Then it was asked, how the lord procrastinate nor delay; for delays, he said, Sanchar, being an ancient baron of Scotland, are dangerous. The religion, he said, was a should be tried: And it was answered by them, good religion, a saving religion, and if he had That none within this realm of England is acbeen constant in that religion, he was verily counted (b) a peer of the realm, but he who is persuaded he had never fallen into that misery. a lord of the parliament of England; for every So falling to his prayers for a while in private, subject either is a lord of the parliament, or and after in public praying for the king and one of the commons, and the lord Sanchar was queen, their royal issue, and the state both of not a lord of the parliament within this kingEngland and Scotland, with the lords of the dom, and therefore should be tried by the comcouncil and church, he submitted himself to nons of the realm, viz. knights, esquires, or the will of the executioner; who casting him others of the commons; and therewith agree off the ladder, suffered him there to hang a long our books, as well ancient as others, (c) 11 E. time, that people in this great man might take 3, Brief 473, 8 R. 2. (d) Process. pl. ult. (e) notice of the king's greater justice. 20 E. 4, 6, a. b. 20 El. (ƒ) 360. Then the Note, That this lord was tried by the coun-king asked, in what court, after the principal is try, but challenged his trial by peers, which attainted, the lord Sanchar should be tried? was denied him, because though he were a lord And the justices answered, that forasmuch as in Scotland, yet he was no lord of the parlia- the procurement was in Middlesex, it was most ment here in England, nor had any English convenient to try him in the King's-bench. barony. Note also, That Carliel, and another And thereupon the king resolved, that he should with him, but whether it were Gray or no, I not be committed to the Tower, but to the pricannot certainly affirm; but sure I am, it was son of the King's-bench, where he might be, if one that was with Carliel when he did the fact occasion required, sooner and easier examined, (and I take it to be my lord's page), were than if he should be committed to the Tower: hanging on two gibbets set up in Fleet-street, And the king commanded the said justices, over against the great gate of the White friars, that all things should be prepared for the legal very early in the morning, before the lord San- proceeding; and that he would endeavour to quire had his trial *.-Note also, That one of cause not only the principal, but others also those gibbets was higher than the other by the who might discover the truth of the fact, to be length of a man, or thereabouts; and I de-apprehended. And thereupon the said chiefmanding the reason thereof, was answered by a stander-by, that the manner of Scotland is, that when a gentleman is hanged with a man of meaner quality than himself, the gentleman hath the honour of the higher gibbet, and thinks himself much wronged if he be not so disposed of. Whether this answer was serious, or by way of scorn, let him that desireth to be resolved by enquiry resolve himself.

justices conferred with the other justices of the king's-bench, before whom the lord Sanchar should be tried. And before them divers questions were moved concerning the legal proceeding in this case. 1. Upon the statute of (g) 2 E. 6, c. 24, by which it is enacted, as to this point in this manner: And farther be it enacted by the authority aforesaid, That where any murder or felony hereafter shall be committed or done in one county, and another

Sir Edward Coke, in his ninth Report, p. 117, person or more shall be accessory or accessoat seq. gives the following Account of

THE LORD SANCHAR'S CASE. ROBERT Creighton, lord Sanchart, a baron of Scotland, of his malice prepense at Westminster, in the county of Middlesex, incited and procured Robert Carlicl to kill John Turner, who accordingly associating himself with one James Irweng, the 11th of May now last past, killed the said John Turner within the city of London. And the king in his zeal to justice in this case, immediately sent for the

* See the Record of the conviction of Carliel and Irweng, in Coke's ninth Report, p. 114. + Wilson's Hist. p. 59, 60.

ries by any manner of wise to any such inurder or felony in another county, that then an indictment found or taken against such acces

(a) 4 Co. 43, b.

(b) Co. Lit. 16, b. 7 Co. 15, a. Calvin's Case, 2 Inst, 3 Inst. 30.

(c) 7 Co. 15, b. 16, a. Calvin's Case (d) Fitz. Process 224, 7 Ca. 15, b. Calvin's Case.

(e) 7 Co. 15, b. Calvin's Case. Br. Nosung de Dignity 49.

(f) 7 Co. 15, b. 23, a. Calvin's Case. Dy 360, pl. 6, Co. Lit. 261, b.

() 2 et 3 E. 6, c. 24, 3 Inst, 113.

sory, or accessories, upon the circumstance of statute, was, If the (i) justices of the King'ssuch matter before the justices of the peace, or bench are within these words, justices of Gaolother justices or commissioners, to enquire of delivery, or Oyer and Terminer? And it was felonies, where such offence of accessory or objected, That the King's-Bench is the highest accessories in any manner of wise shall be com- court of ordinary justice in criminal causes mitted or done, shall be as good and effectual within the realm, and paramount the authority in law, as if the principal offence had been of justices of Gaol-delivery, and commissioners committed or done within the same county of Oyer and Terminer; and as it is held in 27 where such indictment shall be found: and Ass. 1. is (k) more than the eyre; for they that the justices of gaol-delivery, or oyer and shall examine the errors of the justices in eyre, terminer, or two of them, of or in such county gaol-delivery, and oyer and terminer; and where the offence of any such accessory shall therefore inasmuch as the justices of the King's be hereafter committed and done, upon suit to bench are paramount and superiors over all them made, shall write to the Custos Rotu- the others, they cannot be included within their lorum, or keepers of the Records, where such inferiors, viz. justices of gaol-delivery, or of principal shall be hereafter attainted or con- oyer and terminer. Also the justices of the victed, to certify them whether such principal King's-bench have a distinct and supreme be attainted, convicted, or otherwise discharged court; and the justices of gaol-delivery, and of such principal felony; who upon such writ- oyer and terminer, other distinct and subordi ing to them, or any of them directed, shall nate courts. And therefore it was adjudged, make sufficient certificate in writing, under Hill. 30 El. Reg. in the King's-bench, that their seal or seals, to the said justices, whether where R. (1) Smith was indicted of forgery of such principal be attainted, convicted, or other- a false deed at the sessious of (m) peace in the wise discharged or not. And after they that so county of Oxford; and the statute of 5 El. c. shall have the custody of such records, do cer- 14, which inflicts the punishment, and upon tify that such principal is attainted, convicted, which act the indictment was grounded, proor otherwise discharged of such offence by the vides, that the indictment shall be taken before law; that then the Justices of gaol-delivery or of justices of assize, and justices of oyer and teroyer and terminer, or other there authorised, miner: and although the justices of peace by shall proceed upon every such accessory, in the their commission have power to hear and decounty or counties where such accessory or ac- termine felonies, trespass, &c. and have an excessories became accessory, in such manner press clause ad audiendum et terminand' so and form as if both the said principal offence that they are, as it was urged, justices of oyer and accessory had been committed and done in and terminer; yet it was resolved per tot cur' the said county where the offence of the ac- that because there was a commission of oyer cessory was or shall be committed or done. and terminer known distinctly by that name, And that every such accessory, and other of- and the commission of the peace known disfenders above expressed, shall answer upon tinctly by another name, that the said indicttheir arraignments, and receive such trial, judgment was not well taken, and therefore was ment, order, and execution, and suffer such for- quashed. But it was resolved, that the (n) feitures, pains and penalties, as is used in other justices of the King's-bench are the sovereign cases of felony: any law or custom to the con- justices of gaol-delivery, and of oyer and tertrary heretofore used in any wise notwithstand-miner; and therefore they are included within ing. And upon this statute, divers (h) questions were moved; 1. If the indictment in the county of Middlesex of the accessory should recite, that the principal was indicted before Commissioners of oyer and terminer in the city of London (as in truth he was) or if the indictment should recite in facto, that the prineipal committed the murder in London, &c.? And it was resolved, that the indictment in Middlesex should recite, de facto, that the principal committed the murder in London. For the recital, that the principal is indicted of murder in London, is no direct affirmation that the principal committed the murder; for the indictment is but an accusation, and in lieu of the king's Declaration, which may be true or false; and this agrees with former precedents. And accordingly the indictment was drawn; upon which the accessory was convicted, as appears before by the indictment itself.

2. The second question moved upon the

(h) 3 Inst. 48, 49.

the said words: and therefore it is held in 7 E. 4, 18. a. & 4 H. 7, 18. that if an indictment of forcible entry be removed into the King's-bench, the justices of the King's (o) bench shall award restitution; and yet the statute of 8 H. 6. c. 9,

(i) 3 Inst. 103, 3 Mar. Br. Oyer and Termin. 8, 4 Inst. 73, Cowley, 66, Postea 118, b.

(k) Stanf. Cor. 35, a. 4 Inst. 73, Fitz. Assise 246, Br. Escape 21, Br. Jurisdict. 66, Postea 118, b. Br. Judges, Justices, &c. 16.

(1) Cro. El. 78, 697, 3 Inst. 103, Cawl. 258, 259.

(m) Cr. El. 601, 697, Cawl. 258, 259, Savil 134, H. P. C. 165.

(n) H. P. C. 165, Cawley 66, 3 Inst. 103, Antea 118, a. 3 Mar. Br. Oyer et Terminer 8, 4 Inst. 73.

(0) Kelw. 159, a. b. Dy. 187, pl. 6, 11 Co. 59, a. b. 65, a. 1 Roll. Rep. 92, B. forcible Entre 27, Dall. 25, pl. 8, Dall. in Kelw. 204, pl. 2 Dall. in Nash. pl. 2, Fitz. Entre 44, Br. Restitut, 11 Dall. Just. c. $14, Jenk. Cent. 197, 221.