'Mrs. Cole's father's house to Dunmaine. Mrs. Setwright, who was hired to be the house'keeper, is particular in her testimony herein, that lord and lady Altham went from Mrs. Briscoe's, and not from Vice's to Dunmaine. Mrs. Cole said, that Setwright was brought. to-bed in Dunmaine. Setwright and she ' agree in this part of the evidence.

of her knowing Mrs. Heath was, by her voice.

The next witness in behalf of the prosecutor was Dr. Jemmatt. He swore that he was physician to lord Altham several years. He swears, that lord Altham came to bis lodging to acquaint him of the indisposi tion of his lady, and that he went along with my lord to see her, and found her very warm, and prescribed for her; but that afterwards 'he discovered by her all the symptoms of pregnancy, and that she told him she was gone three months with child. She said she

was regular till about two months past, and thereupon he ordered her mild medicines: 'He further said, he believed, that lady Altham was with child, and that her complexion was altered, as pregnant women are. He was asked on the cross-examination, whether there was any infallible rule to know a real

of Physicians of Dublin, or London, or the Royal Society in London, could not as yet determine that point.

Mrs. Cole said, she was examined in the Court of Exchequer, and there declared, that she and her mother went down to Dunmaine, 'from Dublin, in March or April, in the spring immediately following lady Altham's coming ' over to this kingdom. But now she corrects herself, and says, she then mistook the time, for that it was in February she and her mo'ther went to Dunmaine. She says, the ac⚫cident of china saucers happened two months after going to Dunmaine, and that four gen⚫tlemen and her mother and she dined with lord and lady Altham that day, and were pre-from a false conception. He said, the Colleges 'sent at that accident: She does not mention 'who they are, but conceals their names. In her 'testimony, she describes the room. She tells 'you, gentlemen, that lord Altham emptied the saucers very carefully from the sweetmeats,She and threw them down, one by one. She swears, that lord Altham knew his lady was with 'child. She says, that she believes that she 'swore, that she was about 13 years old, at the 'time of the former trial; but now she says 'she was born in the year 1691, so that she 'must be then about 23 years old, and differs now 10 years from the account she gave ofticoat; though she was not quite so critical her age on her former examination. She as the doctor was in his profession, yet she 'tells you now, that one might observe the seemed to know more of lady Altham's preg'large eyes and bead of the abortion. Shenancy than the physician knew.

:

Hellen Moncriefe was the next evidence. swore, that Doctor Walker recommended 'her as a nurse to lady Altham. That she met him in Stafford-street the beginning of No. vember or December 1714. That she was three times at my lady's lodgings, that she ' appeared as big with child as any woman that had been gone six or seven months, that she laid her hands on her belly near her pet

When she admits to have said, on the former trial, that was cross-examined, she said, she did not ob 'her mother told her it was an abortion; but 'serve any child to move in her belly. ' now she says, that her mother and she went 'Mrs. Bush was next examined. She said, 'into the closet together. She said on the she was acquainted with lady Altham, and saw former trial, that lady Altham sat next to her her at New Ross in February 1714, and that 'at table, but now she says that lord Altham she seemed then to be with child; and that 'sat next to her; and excuses herself from she was in mourning for queen Anne. That 'these mistakes, that they all arose from the she was introduced to her there, and in a day 'confusion she was in at the time of her exa- or two paid her a visit. She says that she saw 'mination. 'her after the latter end of June, to the best of She now will not be positive that lady Al-her recollection, without her big belly. There tham went to Vice's before she went to Dun- was nothing certain in her testimony, and nomaine, but is positive she went to other lodg-thing material arose from her cross-examinaings. Says, she does not remember the 'tion; therefore, gentlemen, I will not trouble housemaid at Dunmaine, nor Bourke the you therewith. 'postillion. She tells you, she paid a visit to Mr. Boyde's. She was asked if she knew Anthony Dyer, one of the servants; she said she did not. She was asked if she was at Duomaine on St. George's-day; she said 'she believed she was. She was asked if she

6

Alice Betts swore, that she wished lady Altham joy, and in November 1714, and after, had some conversation with Mrs. Heath; and 'that she used to joke with her about lady Altham's being with child. She said, that lady Altham appeared with child, and that it was

it was before or after Christmas.

'Mary Sutton swore, that she dined at Dunmaine, and toasted the boy in the box.

' remembered any smock race to be at Dun-easy to be seen that she was with child; that 'maine that day; she said she did not remem'ber of any smock-race. She denies she ever had any discourse with Mr. Mark White, that she could swear for lord Anglesea, if her 'lease was renewed. She said she did not 'know of any fire or candle, being in the room when Mrs. Heath came to alarm ber mother ' of lady Altham's being ill; but the manner

As to Evan Thomas, and Martha Tenant, their testimony was not very material. You have it, gentlemen, in your notes.

A

'Anstace Toole said, she fitted a gown on lady Altham, and that Mrs. Heath was pre

sent. That she saw the child at Ross, and ⚫ made a gown for the child, and said that she 'never had any conversation with lady Altham about the child.

Anne Bennett said, she believed in her heart, lady Altham was with child, and that lady Altham looked very round.

have sat here without refreshment for near twenty-two hours. You have heard the evidence on both sides, and seen the witnesses, so that it will be unnecessary to take up more of your time. I shall only observe to you, that the crime the traverser stands charged with is a crime of a high nature; the consequence of a • Edward Howlett was the next witness, who conviction is no less than to make her perpe'was examined after Bennett. You have seen, tually infamous, never to be believed after in a gentlemen, the mean figure and appearance court of justice; and therefore it is that men of he made. He swore he sold clouts to Mrs. honour will see, that evidence is clear and deHeath, for lady Altham's lying-in. That on monstrative, before they will lay such an imthe day of separation of lord and lady Al-putation by their verdict on any body: You tham, her ladyship kissed the child in the will for this reason, weigh the testimony on coach at parting. He said that this hap-both sides, and compare the credit of the wit⚫pened about ten or eleven o'clock in the morning. But here, gentlemen, I must take no⚫tice, that all the other witnesses say it was in the afternoon lady Altham went from Dunmaine, the day of the separation; and herein 'contradict Howlett.

nesses; and if, on the whole, you shall believe that the balance' goes on behalf of the crown, you will then find the traverser guilty; if, on the other hand, the testimony in favour of the traverser outweighs the crown evidence, or is equal with respect to credit, even in that case It is of no purpose to mention all the cross-juries rather incline to mercy than otherwise; 'examinations, therefore I shall not repeat so that, gentlemen, you will go together, and them to you. I will wait for you till you please to return with your verdict.

Newton Rickets said, that he made a small chair for a child, but did not swear, that lord and lady (Altham called him their child, but that they behaved to him as such. I shall likewise not trouble you with his cross-exa ⚫mination.

Elizabeth Doyle swore, that her mother fell ill of a fever, which prevented her nursing the child. On her cross-examination she said that Madam Cole desired her to go to ⚫ Dunmaine last summer to give an account of what she could say, and that she was not at Dunmaine for twelve years before.

'James Sinnot swears, that he saw lord and lady Altham at his father's house, and observed that lady Altbam was with child, and that the child was afterwards at Dunmaine, and that lord Altham had ordered the child to ⚫ be brought to table to be shewn to the witness and Mr. Ivory as his son and heir. This ⚫ piece of evidence is somewhat extraordinary, ⚫ that lord Altham should call his son and heir to be shewn to him, and that he never saw the 'child but once.

James Fitzpatrick says, that he saw a child in the arms of a clean, orderly woman, and ⚫ that he took it to be lord Altham's legitimate child; and the only reason he gave for it was, that he believed lord Altham had that regard ⚫ for him that he would not introduce his illegi<timate child to him, and that to the best of his memory, he saw the child once before the separation. But I must observe to you, gentlemen, that no witness of figure has been produced to satisfy you that lady Altham mis⚫ carried, or was brought to bed.

You have given great attention, gentlemen, ⚫to the evidences of both parties, and you have them on your memory, therefore in regard it is so late, at this time I shall not trouble ⚫ you farther with a repetition of them.'

Gentlemen, I see you are all greatly fatigued; I do not wonder at it, for I think we VOL. XVIII.

L. C. J. Marlay. Gentlemen, my brother has summed up and observed upon the evidence, so far as he has gone, as clearly and distinctly as possible.

There have been twenty-five examined on behalf of the prosecutor, besides three new ones produced on the reply, and no less than fifteen on the part of the traverser. To repeat every thing they have said would be endless, and almost impossible, considering the time already taken up in this extraordinary trial.

I shall only observe to you, that in a criminal case of this nature, the testimony to convict any person of so great and infamous an offence, ought to be so full, clear and consistent, that there can be no room to doubt the truth of what it is offered to prove.

Whether what you have heard on behalf of the prosecutor be such of itself, considered without regard to what has been given in evidence for the traverser, you are the proper judges.

Though there are many witnesses for the crown, there are few material ones; and it has been observed to you already, that the bare declarations of my lord or lady Altham are not evidence in this case.

The first witness produced, Mrs. Cole, is a material witness; my brother has fully repeated her testimony; I shall not add to his observations; she swears to the miscarriage, and there is no other witness brought to support her testimony, though two contradict her.

The 11th, Edmond Howlett, a pedlar, is in some measure a material witness; he swears that the child was owned by lady Altham before Mrs. Heath, and a ribband bought for it by my lady, and put on the child by the traverser, and diaper bought for it for clouts, before it was born, by the traverser. You have 0

Three of these witnesses, Murphy, Doyle, If you believe the traverser's witnesses, parand Redmond, swear to my lady Altham's be- ticularly Mrs. Giffard, Mary Setwright, "and ing delivered of a son, and swear it very posi-Sarah Weedon, my lady never was brought-totively.

505. The Trial of the Right Hon. RICHARD Earl of ANGLESEA, FRANCIS ANNESLEY, esq. and JOHN JANS, gent. for an Assault on the Hon. James Annesley, Daniel Mac Kercher, and Hugh Kennedy, esqrs. and William Goostry, gent. before the Hon. Richard Mounteney, esq. second Baron of his Majesty's Court of Exchequer, and St. George Caulfield, esq. his Majesty's Attorney-General, Justices of Assize for the Leinster Circuit, on Friday, August 3d, at Athy, in the County of Kildare in Ireland: 18 GEORGE II. A. D. 1744.

THE Court being set at eleven o'clock, the

the reign of our lord George the second by 'the grace of God, of Great Britain, France and Ireland, king, defender of the faith, and

Jury were called over, and answered to their names; of whom the following twelve were sworn, to try the issue joined between theso forth, with force and arms, that is to say, parties.

Angus Byrne, one of the persons indicted for the assault, is called into court, and appears.

Clerk of the Crown. You stand indicted, for assaulting William Goostry, gent. on the 16th of September last, do you submit or traverse? Angus Byrne. I do submit.

Clerk. You likewise stand indicted for assaulting Hugh Kennedy, esq. do you submit or traverse ?---Angus Byrne. I submit.

Clerk. You likewise stand indicted for assaulting Daniel M'Kercher, esq. do you submit or traverse?--Angus Byrne. Submit.

Clerk. You likewise stand indicted for assaulting James Annesley, esq. do you submit or traverse ?---Angus Byrne. Submit.

Court. The gentlemen of the jury must have pen, ink, and paper.

Clerk of the Crown reads the Indictment, which is as follows:

'with swords, sticks, and so forth, at the Cur'raugh in the said county of Kildare, in and upon one William Goostry, a true and faithful 'subject of our said lord the king, in the peace

of God, and of our said lord the king, then ' and there being, did make an assault, and him 'then and there did heat, wound, and ill treat, " so that his life was greatly despaired of, and other wrongs to him then and there did, con'trary to the peace of our said lord the king, his crown and dignity.

The like for assaulting the honourable James Annesley, esq.

The like for assaulting Daniel M'Kercher, esq.

The like for assaulting Hugh Kennedy, esq.

the right honourable Richard earl of Anglesea, Mr. Disney. May it please your lordship, Francis Anuesley, esq. and Mr. John Jans, do stand indicted on the 16th of September, 17th of Geo. 2, for an assault by them made, at the Curraugh of Kildare, in and upon the honourforth, that on him then and there, they did able James Annesley, which indictment sets make an assault, and likewise on Daniel M Kercher, esq. Hugh Kennedy, esq. and Mr. William Goostry. I hope we shall be able to give such evidence, as will clearly prove County of Kildare. The jurors for our lord the king, upon their oath say and pre-lordship will direct the jury to find for the prothe allegations of the indictments, and that your sent, that Francis Annesley of Ballysax, in the county of Kildare, esq. the right honourable Richard earl of Anglesea, Joseph Law- Mr. Harward. May it please your lordship, son, late of the city of Dublin, in the county and you gentlemen of the jury, I am of counsel of the city of Dublin, yeoman, John Jans, this day for the prosecutors, Mr. Annesley, late of the same, in the said county of the Mr. M Kercher, Mr. Goostry, and Mr. Kensaid city, gent. Anguish, otherwise called nedy, and the nature of this case and prose Angus Byrne, late of the same, in the said cution will appear to your lordship and to the county of the said city, yeoman, and Mi-jury, as I apprehend, in this light; for I shall 'chael Lacy, late of the same in the said county of the said city, yeoman; on the 16th day of September, in the 16th year of

See the two last Cases in vol. 17, and the preceding Case,

secutors.

state it from what I presume to be true, and will appear to be so from the examinations that are given in against the traversers by those gentlemen. And though this, my lord, upon the face of the record, appears to be but an ordinary and common assault, yet, if these exa

Mr. Spring. My lord, I must call upon that gentleman again to confine himself to the fact and the circumstances relative thereto, and hope, if he continues to offer any thing so extremely improper, your lordship will take notice of it, and direct him not to proceed. Court. I think you go too far back, Mr. Harward.

minations are true, it will appear, that, had not | nations in my hand, than to trust to my own the hand of Providence very signally interposed representation of the former attempts on his in preservation of their lives, instead of a common lifeand sudden affray, it would have been a crime of another nature, it would have been a crime of the deepest dye, for which the traversers must have stood a trial for their lives. I do not mean, my lord, when I say it would be a crime of another nature, by that to bring it home as such to all the traversers; no, I believe there may be one of them who had not such a wicked intention; but as to others, it will appear to be a concerted, premeditated assault, not to be satisfied by bloodshed and battery, but to pursue the prosecutor, Mr. Annesley, to death. If these examinations are true, this is but one of the many attempts that lord Anglesea

Mr. Harward. My lord, to be sure I am ip your lordship's judgment, and therefore it is, when I understand it, I shall pursue it.

Court. It is extremely proper to mention the circumstances attending this fact, and the nature of the case, for the reason you mention, that it may have a due consideration in the sense of the Court.

Mr. Harward, I desire to know, my lord, whether I have a right to lay any circumstances before the Court and the jury, to let them see whether this assault was a premeditated thing

or not.

Court. Go on, Sir.

Mr. Spring. My lord, I must submit it to your lordship's judgment, how proper this gentleman is at this time in this very elaborate and affecting harangue. The offence for which the traversers are indicted is an assault, which arose from an ordinary and common quarrel at a public meeting; but this gentleman tells your lordship that there was an in- Mr. Harward. Now, my lord, I can shew, out tention in the traversers, or some of them, to of these examinations, that it was a premecommit what they are not now charged with, ditated thing; for this assault happened to be something of another nature, which he makes committed on the 16th. The first day of the a crime of the deepest dye. Pray, my lord, meeting of gentlemen on the Curragh of Kilhow does this appear? Or, what right has he dare, to see the diversion of the races, was on upon the present occasion, to assert any such the 14th of September; on the 14th and 15th thing? There is no indictment for such an in- there was no actual assault committed; but tention, nor any foundation for such an asser- there was a behaviour, there was language tion; and therefore 1 humbly pray your lord-given, that was introductory, and pointed out ship will order that gentleman, in conducting this prosecution, to confine himself to his duty, and direct him to open evidence that is proper, and no more.

Mr. Harward. My lord, I am very unfortunate, to be so often taken down by gentlemen of great experience and knowledge, and must apply for your interposition, else I shall not know how to proceed.

Court. Go on, Mr. Harward.

Mr. Harward. I was going on, as I apprehended I had a right to do, and as I have observed to be the constant practice in all cases of this kind, not to confine myself to the bare assault, but to shew it in all its concomitant circumstances, that the whole truth of the fact may appear to the Court; and the reason why experience justifies every body to do this is, because the fiue which the Court is to impose is discretionary, and will be greater or less in proportion to the nature of the offence; and therefore every thing is proper to be laid before the Court, that may be an ingredient in their consideration for the imposing that fine. I say then, my lord, that this assault, when it comes to be considered upon its circumstances, will not appear to be the effect of a sudden passion, but to have proceeded from an implacable enmity, that has pursued this unfortunate client of mine from bis age of nine or ten years old to this day. I choose rather to read, as to this, the very words of the exami

most plainly what the consequence would be, that in reality happened the third day. I would be in your lordship's judgment, whether or no these two preceding days are not connected with the following ones.

Court. Extremely proper.

Mr. Harward. Why then, I submit to your lordship's directions, and I shall not take the liberty of mentioning any of the former attempts, or injuries of the highest nature, that my client has suffered

Mr. Spring. My lord, this is for no other purpose but to inflame the minds of the jury, and to captivate the populace. There is no injury, no attempt of any kind, real or pretended, but that on the 16th, that is to be considered by the jury.

Court. The jury will be told, by and bye, that the single point they are to consider is the fact of the assault only. Go on, Mr. Harward.

Mr. Harward. I did mention that I would not enter into a narrative of the former attempts, but coufine myself to the passages of this day. This gentleman, as son and heir to the late lord Altham (I hope the counsel will give me the liberty of telling who he is)—

Mr. Spring. There is no occasion for that neither, at this time.

Court. Go on, Sir, in stating the case. *** Mr. Harward. I say then, that Mr. Anuesley, along with these other gentlemen (some of them men of profession,) came into this king