The tryal and condemnation of Mervin, Lord Audley Earl of Castle-Haven At Westminster, April the 5th 1631. For abetting a rape upon his Countess, committing sodomy with his servants, and commanding and countenancing the debauching his daughter. With the learned speeches of the Lord High-Steward, the arguments of the King's-Councel upon that occasion, and the Lord Audley's speech at the place of execution.
Castlehaven, Mervyn Touchet, Earl of, 1592?-1631.
Page  [unnumbered]

THE TRYAL AND Condemnation OF MERVIN, Lord Audley Earl of Castle-Haven.

AT Westminster, April the 5th 1631.

For Abetting a Rape upon his Countess, Committing Sodomy with his Servants, and Commanding and Countenancing the Debauching his Daughter.

With the Learned Speeches of the Lord High-Steward, the Arguments of the King's-Councel upon that occasion, and the Lord Audley's Speech at the place of Execution.

LONDON, Printed in the Year, 1699.

Page  [unnumbered]

Page  [unnumbered] THE PREFACE.

'TIS no less deplorable than won∣derful▪ that in this Nation where the purest Religion is profess'd, and where Vice and Immorality are punish'd by severe Laws, Wickedness should ascend to such a height, as equals▪ if not exceeds, all the Barbarous Regions of the Earth. Time was, when gross enormi∣ties in this Island, like Batts and Owls were obscur'd by Night and Darkness, and those that committed them were asham'd to own their Crimes, or suffer their Examples to infect the open Air. They were conten∣ted to go to Hell alone, without Usurping the Office of Belzebub, or loading their Souls with the Guilt of Tempting their in∣cautious Brethren; but now the most Scan∣dalous, Inhuman, Unnatural, and Beast∣ly Offences, stalk abroad at Noon day, and he thinks himself a Puny in Wickedness, and Page  [unnumbered]scarce worth the Damning, that can't boast of numbers of Souls that he has lead to De∣struction.

Ravishing Women, was a Crime rarely heard of among our Ancestors, and though no Age has been so happy▪ but it has produ∣ced some Monsters in Morality, as well as Nature; yet now this Sin is grown so com∣mon, that scarce a Sessions passes, wherein there is not one or more Convicted of Rape, and that in the most Scandalous manner too, upon the Bodies of meer Children.

Nay, the Debauches of this Age have found out another way of Ravishing Wo∣men, and that is, of their Honours and Reputations; for where the Villains have impudently assaulted the Chastity of Vertu∣ous Women, and have encountred nothing but Scorns, or the Bastinado from a Foot-Man; there they'll be sure to fix a Scan∣dal, and boast of the Favours they ne'er re∣ceived. Nay, a Fellow that has neither Sence in his Head, Money in Pocket, nor a Tatter to his Back, but what a Louse wou'd break its Neck from, shall dignifie himself Gallant to persons of the Best Qua∣lity, that ne'er could reach above the Rank of a Dung-hill-raker▪

Page  [unnumbered] Another Abomination that shocks our Na∣tures, and puts our Modesty to the Blush, to see it so commonly perpetrated, is the De∣villish and Unnatural Sin of Buggery. A Crime that sinks a Man below the Basest Epithet, is so Foul it admits of no Aggra∣vation, and cannot be express'd in its Hor∣ror, but by the Doleful Shrikes and Groans of the Damned. A Sin that caus'd God Almighty Pluere Gehennam de Coelo, to Rain down Hell-Fire upon So∣dom and Gomorrah, and turn a Fruit∣ful and Pleasant Country, into utter Barren∣ness and Desolation.

This Sin being now Translated from the Sadomitical Original, or from the Turkish and Italian Copies into English; not only in the Infamous Example of that Monster Ri—by, and other Notorious Sodomites; but hering also that there is at this time several taken up at Windsor, and others of the same Gang now Committed to Newgate, who were ingag'd in a more than Beast-like Confederacy among themselves, for exercising this Unnatural Offence: I thought I could not more oblige the Publick, than (having this Tryal lying by me in an Old Manuscript which was never yet Prin∣ted,) to Publish it at this Juncture, that by Reading the Sin, so Tragically Deline∣ated Page  [unnumbered] in its Horrid Shape, and ugly Visage, by the Grave and Learned Sages of the Law, and in the Death of a Noble Peer, other Men might be terrify'd, and scar'd from those Sins that are attended with nothing but Infamy and Death in this World, and Eternal Damnation in the next. And,

Now, seeing I have some Paper left, give me leave to tell the Miscreants of our unhappy Days, that the preceding Sins of Sodom, which spaun'd the Un∣natural Sin of Buggery, were the same that now Reign among our English De∣bauche's, and as they would avoid the Effects, so they ought to be careful in re∣moving the Cause, or without the help of Prophecy, 'tis easie to foretel their R∣ine.

Pride, Luxury, and Irreligion, were the Infernal Parents of Sodomy, and that of their Destruction: And he must have neither Eyes, nor Ears, that knows not how egregiously the same Vices Reign a∣mongst us also. Pride is in its Achme, and nothing so much admir'd as Ease and Softness, Courtship, Address, and En∣tertainment, And that Delicata Insania, Effeminate Madness, had banish'd all man∣ly Vertues. Instead of those Noble Cha∣racters Page  [unnumbered] of Vertue, Wisdom, and Courage, the great things in Vogue, and the only obtaining Bonne Graces, are, that the Fop Eats and Drinks nicely, manages his Whore, his Snuff-Box, his Wigg, his Comb and Glass discreetly, mouths his Oaths finely, and handles his Knife and Fork to Admiration!

But the great Qualification they Boast of, and which wholly imploys our Modern Wits, is in Belching out Blasphemy against the God that made them, and throwing bit∣ter Scoffs and Prophane Jests upon Reli∣gion; and having no other way to demon∣strate their Courage, they shew it in this: That they dare venture to be Damn'd to be accounted Contemptibly Witty. But if they are not already so far sunk into Beast, as they have lost the benefit of Thinking, I wou'd faign stop their Career by a few Modest Questions, viz. Whether they can the better indure Eternal Tor∣ment, because they don't believe them? Or, whether they can extinguish the Flames of Hell, by going Merily and Laughing thither? You all know that Ri—by's other Heinous Crimes was Accompanied with hor∣rid Blasphemy. See your Faces in his Glass at the Bar, on the Pillory, and the Brink of Hell, and if that will neither shame nor Page  [unnumbered] fright you; let me beg the favour of you to leave the Kingdom, for that will be the best Office you ever did, or can do for England, and the Obligation shall be gratefully ac∣knowledg'd by

Gentlemen, (If it ben't a Shame to Stile you so;) Your Humble Servant,

The Prefacer.

Page  1

THE TRYAL AND Condemnation OF MERVIN TOUCHET, Lord Audley, Earl of Castle-Haven, &c.

ON Monday the 25th of April, in the Year of our Lord 1631. About the Hour of Ten in the Morning, the Lord-Keeper Coventry, being by spe∣cial Commission Constituted Lord High-Ste∣ward Page  2 of England, with twenty six of the Nobi¦lity came into Westminster-Hall, Attended by an Herald, and six Sergeants at Arms; And the Lord High-Steward being sat in a Chair of State, and the Peers on each side of a Table cover'd with Green Velvet, Proclamation was made for Silence.

Then Sir Thomas Fanshaw Clerk of the Crown, Read the Commission, and the Usher of the Black Rod kneeling before the Lord High-Steward presented his Lordship with a White Rod; After which a second Procla∣mation was made, Commanding all persons to keep to Silence, and the Lord High-Ste∣ward having desir'd the Peers of the Realm and the Privy Counsellers to be Covered, the Lords were call'd by their Names, as follow∣eth,

  • Earl of Po••land Lord Treasurer.
  • Earl of Dorset and Mid∣dlesex Lord Chambl.
  • Earl of Manchester Lord privy Seal.
  • Earl of Arundel Lord Marshal.
  • Earl of Pembroke.
  • Earl of Kent.
  • Earl of Essex.
  • Earl of Warwick.
  • Earl of Carlisle.
  • Earl of Bedford.
  • Earl of Worcester.
  • Earl of Derby.
  • Earl of Leicester.
  • Earl of Salisbury.
  • Earl of Holland.
  • Lord Viscount Conway.
  • Lord Visc. Wimbleton.
  • Lord Visc. Wentworth.
  • Lord Visc. Dorchester.
  • Lord Howard.
  • Lord Peircy.
  • Lord Strange.
  • Lord Clifford.
  • Lord North.
  • Lord Peeters.
  • Lord Goring.

Page  3

Judges Assisting at this Tryal.
Sir Nicholas Hyde, Lord Chief Justice of Eng∣land, Sir Thomas Littleton, Lord Chief Justice of the Common Pleas, Sir Humphrey Daven∣port, Lord Chief Baron, Mr. Justice Jones, Mr. Justice Whitlock, Mr. Justice Crook, Mr. Baron Denham.

The King's Learned Counsel.
Mr. Sergeant Crew, Mr. Attorney General, Mr. Sollicitor General, Sir John Finch, Sir Tho∣mas Fanshaw Clerk of the Crown, Mr. Keeling, with other Officers and Attendants.

The Lords having answer'd to their Names, the Lieutenant of the Tower was requir'd to bring forth his Prisoner, who was then in the Treasury Chamber, and from thence was Guar∣ded into the Court by the Warders of the Tower, and being put into a place inclos'd for that pur∣pose, cover'd with Blew Bays, and the Lieute∣nant of the Tower into another place adjoyn∣ing to it; the Prisoner having made his Com∣plement to the Lord High-Steward, and the rest of the Noble Lords that were to Try him, the Lord High-Steward spake to him in these words.

My Lord,

The King's Majesty being inform'd by com∣mon Fame, and the Verdict of divers Gentle∣men of Quality in the Country where you ive▪ Page  4 That you stand Impeach'd of several Great and Heinous Crimes, that the Truth of the Charge may be known, he has this day brought you to your Tryal, therein imitating the Al∣mighty in the XVIIIth of Genesis, who came down to see if the Sins of the People were as Noto∣rious as the Cry that was about them; and truly the Kings of the Earth, can have no better Example than what has been given them by the Great and all Wise King of Heaven; and there∣fore our Sovereign who is God's Vicegerent up∣on Earth, has now brought you to Justice, and desires that all proceedings should be carried on with as much equality as the Rules of Equi∣ty and Justice themselves have prescribed. And because (my Lords) the Crimes that will now be brought before you, are of such a Horrid Nature, that may justly raise in some of your Lordships a Detestation, and in others Pity and Compassion. I advise you to lay aside both these Considerations, and let your Reasons and Consciences sway your Judgments, and your Heads direct your Hearts. My Lord Audley, I question not but you are really satisfied (as well as I am my self) that the Noble Peers here Assembled, have as much Justice in their Hearts as Noble Blood in their Veins, and since such as they are to Try you, if you are Conscious of your own Innocency, speak with∣out Fear; for if you are falsely Accused, those that do it shall not escape an Exemplary Punish∣ment; but if you know your self Guilty, I advise you to give Honour to God and the King, by Con∣fessing your Faults, for neither vain Confidence nor Subtlety can obscure or prevail against the Page  5 Truth; and if that touches your Heart, your own Conscience will be a thousand Witnesses against you, and God also who is greater than them all. Persist not therefore in an Obstinate denial of the Truth, for if you do, God will put it into'th Hearts of these Noble Lords to find it out, and to do what is Just in relation to the Punishment of the Crime. Consider of it, and the Lord Direct you.

Lord Audley.

My Lord, I have been six Months a Prisoner, under a close Confinement, with∣out the Advice of Friends or Counsel, and long Imprisonment has reduced me into a very weak Condition. When I was in my best state of Health my Voice was very low, and there∣fore I desire your Lordships will be pleas'd to allow me the liberty of Counsel to speak for me.

Lord High-Steward.

Your long Imprison∣ment has been a singular favour to you. You have had more time than ever any Peer had that was brought to this Bar. However, you shall ask nothing which the Law can give you, but it shall be freely granted to you, and there∣fore I will propound your Request to the Jud∣ges, and leave them to give you satisfaction in it.

My Lords the Judges.

Will the Law allow us to give my Lord Audley the liberty of Coun∣sel to speak for him? I shall be glad to have your Opinions in it.

Lord Chief Justice Hyde.

In Criminal Causes Counsel cannot be allowed in matters of Fact▪ in matters of Law it may.

Page  6
Lord Chief Baron.

The Law is express in this Case, and Counsel ought not to be gran∣ted.

Lord High-Steward.

Read the Indictment.

Clerk of the Crown.

Mervin Lord Audley, Thou art here Indicted, &c. for that thou and Gyles Broadway, Gen. both of Fountain Gifford, in the County of Wilts, not having the Fear of God before your Eyes, but being moved and seduced by the Instigation of the Devil, Did on the twen∣tieth day of June in the Sixth Year of the Reign of our Sovereign Lord Charles, by the Grace of God, of England, Scotland, France, and Ire∣land, King, Defender of the Faith, &c. at Foun∣tain Gyfford aforesaid, in the County aforesaid, did, by Force and Arms, &c. In and upon Ann Lady Audley, then being in the Peace of God and our Sovereign Lord the King, Make an Assault; And the aforesaid Gyles Broadway, the aforesaid Ann Lady Audley, by Force and Arms against the Will of the said Ann, then and there did violently, and Feloniously Ravish, and the said Ann then and there against her Will did Carnally know against the Peace of our Sovereign Lord the King, his Crown and Dignity, and against the Statute in that Case made and provided; what sayest thou Mervyn Lord Audley, art thou Guilty of the Rape of which thou standest Indicted, or not Guilty?

Lord Audley.

Not Guilty.

Clerk of the Crown.

How will you be Tryed?

Lord Audley.

By God and my Peers.

Page  7 Then the Clerk of the Crown Read another Indictment against the Lord Audley to this effect, viz. That he Mervin Lord Audley, not having God before his Eyes, nor respecting the Or∣der of Nature, but moved and seduced by the In∣stigation of the Devil, the first of June in the Sixth Year of our Sovereign Lord Charles, &c. at Fountain Gifford, in the said County of Wilts, in the Mansion House of the said Lord Audley, Did there by Force of Arms upon one Floren∣tius Fitz Patrick, Wickedly, Devilishly, Feloni∣ously, and contrary to Nature, exercise Venery, and the said Florentius Fitz Patrick, then and there did Carnally know, and that Detestable, and Abo∣minable, Sodomitical Sin called Buggery, (not to be named among Christians,) Then and there with the said Florentius Fitz Patrick, Devilish∣ly, Feloniously, and contrary to Nature did com∣mit and perpetrate, to the great Displeasure of Al∣mighty God and Disgrace of all Mankind, and contrary to the Peace of our said Sovereign Lord the King, his Crown and Dignity, and against the Statute in this Case made and provi∣ded, &c.

The like Indictment for the same Offence, Com∣mitted with the same Person on the Tenth of June the same Year, at New Sarum, in the Mansion House of the Lord Audley, was also prefer'd, but not Read against him. All which Bills were found against the Prisoner, in a Court held by special Commission (granted for that pur∣pose,) at New Sarum, before Edward Georges, Sir Thomas Richardson, Lord Chief Justice of the King's-Bench, Sir Nicholas Hyde Lord Chief Justice of the Common-Pleas, Sir John Denham,Page  8 one of the Barons of the Exchequer, Sir Ed∣ward Hungerford, Sir Walter Vaughan, Sir Law∣rence Hyde, Sir Thomas Fanshaw, to them, or any three or more of them, to inquire into the matters of Fact as is before alledged.

To all which Indictments the Lord Audley ha∣ving Pleaded Not Guilty, and put himself upon his Tryal; the Lord High-Steward deliver'd himself to the Lords as followeth.

My Lords,

The Prisoner is Indicted for Rape and Sodo∣my, by two Indictments, he has Pleaded Not Guilty; and 'tis my Duty to Charge your Lordships with the Tryal of it, and yours to Judge of it. The Matters of Fact are to be prov'd by Evidence, and your Lordships are to balance it. I have already observed to you, that probably this Cause may move some of you into Pity, and others into Detestation; but neither of these ought to be thrown into ba∣lance, since a Grain on either side may sway the Scales; Therefore let Reason rule your Af∣fections, and your Heads govern your Hearts; hear diligently, weigh matters equally, and then the Scale will lean on the right side. The Judges will assist your Lordships in point of Law, and therefore if any doubt ariseth among you, you'll propound it to me, and I to them. In these proceedings your Lordships are not upon your Corporal Oaths, for the Law presumes you of such Honour and Integrity, that you will act as Justly without an Oath, as others un∣der that Obligation; and for the same Reason the Law admits of no Challenges. God direct you to do it.

Page  9 His Lordship having concluded, the King's Attorney General opened the Indictment in the following Words.

May it please your Grace my Lord High Steward; here are two Indictments against Mervyn Lord Audley, the first is for Rape, and the second is for Sodomy; the Prisoner is Hon∣ourable, the Crimes of which he stands In∣dicted are foul and Dishonourable, and if they should be prov'd true, I dare be bold to say, That never Poet invented, nor Historian related any thing so Odious, Inhuman, and abominable. Suetonius has with Horror display'd the Vices of some Heathen Emperors, that having ingross'd an absolute power, were fearless of punish∣ment, and shameless in committing abomina∣ble Enormites; yet no Author has produc'd a Man that ever equal'd, or came near the Crimes that this Lord is accus'd of. This is a Crime, to the Honour of our Nation be it spoken, that is scarcely heard of in an Age, and whenever it happens calls aloud for timely pu∣nishment, that the Infection spread no farther, nor provoke Divine Vengeance to pour down the Vials of his wrath upon the whole Kingdom. I can speak it with great satisfaction, That in all King James's Reign, and from his Majesties first Accession to the Crown, till now, I never heard the like occasion to speak against a Peer of the Realm; and as God knows I do it now with abundance of Regret, so I hope I shall never have the like occasion to do it any more. His Majesty who is your Pattern of Vertue, not only as a King, but in his personal Capa∣city, and of whom it is hard to say, whether Page  10 he excels most in Justice, or Mercy, (tho' I am inclin'd to believe 'tis in his Mercy) would have my Lord Audley, the Prisoner at the Bar, heard with as much favour as a Crime of that Horrid Nature will allow. When the Notice of this Crime came first to His Majesty's knowledge, he was amazed, and gave strick command that the Truth might appear, and his Throne and People might be cleard from the Guilt of such abominable impieties; therefore the Prisoner was Indicted according to Law in his own Country, and by Gentle∣men of known Worth and Integrity; Billa Vera being found against him, he is brought to this Bar to be Tryed by these Honoura∣ble Lords his Peers; of whose Wisdom and Justice there can be no question, and there∣fore we may expect the Event accordingly: First I shall begin with the Rape.

Now Rape is defin'd to be an Unlawful Car∣nal Knowledge, and Abuse of a Woman by Force against her Will. This was Felony by the Common Law, and tho' the Statute of West∣minster, 1. Cap. 13. lessen'd it into a Misde∣meanor, yet it was soon after 13. Ed. 1. C. 34. made a Capital Offence without Clergy, a∣greeable to the Law of the Almighty Legisla∣tor, Deut. 22. and Gen. 34. and was accoun∣ted by our Fore-Fathers, so Detestable and A∣bominable a Crime, Bracton, l. 3. p. 147, that those who were guilty of it, were punish'd with the Loss of their Eyes, and their Privy Members, that they might at once be deprived of the wicked Inlets, and Instruments of their Base and Unlawful Lusts; but I shall not Tyre your Page  11 Lordships patience with Citing Authorities, nor inlarging upon the Hainousness of an Offence that admits of no aggravation, and therefore shall only mention three or four Rules in Law, relating to the present Case; the Truth of which I submit to the Opinions of my Lords the Judges.

First, When any Offence is Felony, either by the Statute, or Common Law, all Accessaries be∣fore and after, are incidently included, so that if any be aiding, assisting, or abettiag any to do the Act, tho' the Offence be personal, and done by one only, as is in this Case, not only he that doth the Act is Principal, but also they that are present, Abetting, and Aiding the Misdoer, are Principals also.

Secondly, If the party on whom the Crimes was Committed, be notoriously Unchast, and a known Whore, yet there may be a Ravish∣ment.

Thirdly, In an Indictment of Rape, there is no Limitation of time for the prosecution; for Nullum tempus occurrit Regi, no time occurs a∣gainst, or prevents the King's Suit; but in case of an Appeal of Rape, if the Woman do not pro∣secute in Convenient time, it will bar her.

Fourthly, If a Man take away a Maid and Ravish her by Force, and afterward she gives her consent and Marries him that did the Act, yet it is a Rape.

As for the Crimen Sodomiticum, in the second Indictment, I shall not Paraphrase upon it, since it is of so abominable and Vile a Nature,Page  12 (that as the Indictment truly expresses it, Crimen inter Christianos non nominandum) it is a Crime not to be named among Christians; and by the Law of God, as well as the Antient Laws of England, it was punish'd with Death. Levit. 20. Fleta, l. 6. Cap. 35. Sodomitae in terra vivi confodiantur: Sodomites are to be buried alive in the Earth; or rather as some understand the Phrase, be set deep and alive into a Pit dig'd for that purpose, with their heads above ground, till they are famish'd to Death, and this agrees with the Mirror, Cap. 4. The Statute of 25. Hen. 8. Cap. 6. made it Felony without Cler∣gy, which tho' Repeal'd by 1. Mar, yet it was revived by the 5. El. Cap. 17. and is still in Force.

As to this Indictment there is no other Que∣stion, but whether it be Crimen Sodomiticum penetratione, whether he penetrated the Body, or not; to which I answer, the Fifth of Elizabeth, sets it down in general Terms, and ubi Lex non distinguit, ibi non distinguen∣dum; and I know you will be cautious how you give the least Mittigation to such abo∣minable Sins; for when once a Man in∣dulges his Lust, and Prevaricates with his Religion, as my Lord Audley has done, by being a Protestant in the Morning, and a Papist in the Afernoon▪ no wonder if he commits the most abominable Impieties; for when Men forsake their God, 'tis no wonder he leaves them to themselves.

But here I find things that exceed all ima∣gination, and is what the Poet truly Calls im∣principiti vitium, or meditated mischiefs, for Page  13 his ill inclinations were bent, to force his Wife to be naught against her own Inclinations, which the wickedest Man I ever heard of be∣fore would have Vertuous and Honest, how bad soever he is himself; but on the contra∣ry, the Prisoner at the Bar tells his Wife, if she loves him, she must love Antill his Servant also; and to incline the Lady to lie with him, he fetcheth an argument from Scripture, and tells her, that her Body is his, and that she is bound to obey his Commands; and if she Sin∣ned in obeying him, it was no fault of hers, but his own, and he would answer for it. He allowed this Antill, his vitious favorite, to spend Five Hundred Pounds a Year; but would not allow his Eldest Son One Hundred. If his Lady or Daughter wanted necessaries, they must lie with Skipwith, another of his Servants, before they could have Money to buy what they wanted, telling his Daughter he had rather she should have a Child by Skipwith, than any other person; but these things, my Lord, I had rather should come out of the Mouths of the Witnesses than from mine; therefore, pray Cryer, call Walter Tyte.

Cryer.

Vous avez Walter Tyte, who being sworn, the Attorny General said.

Attorny General.

Walter Tyte, Inform my Lord High Steward, and the rest of these Noble Lords, the Conditions and Circumstan∣ces of Antill and Skipwith before they came into my Lord Audley's Service, and how my Lord Audley Preferr'd and Enrich'd them af∣terwards.

Page  14
Walter Tyte.

Antill, my Lord, was a Foot∣man to Sir Henry Smith, and had not (as I verily believe) one Farthing when he came to my Lord, besides the Cloaths on his back; he liv'd with my Lord as his Footman and Page several years; then he had Leave▪ given him to keep Horses in my Lord's Grounds, by which it was discours'd that, in a short time, he got Two Thousand Pounds. He never sat at Table with my Lord, till he had Married my Lords Daughter, with whom he gave him to the Value of Seven Thousand Pounds. Henry Skipwith was sent by my Lord from Ireland, to be my Ladies Page; his Fa∣ther and Mother was very poor people, yet he spent Five Hundred Pounds a Year of my Lord's Mony. He gave him at one time a Thousand Pounds, and has since made over to him leveral parcels of Land, to the value of Two Hundred Pounds a Year.

Attorny General.

Pray what Religion did my Lord profess.

Walter Tyte.

At first every Body knows he was a Protestant; but after the buying of Founthill House, he turned to the Romish Religion, at the Instance of some Popish Gen∣tlemen who were Neighbours.

Then the Lady Audley appearing as an E∣vidence, she was Sworn, and the Attorney General said to her.

Attorny General.

Will your Ladyship be pleas'd to inform these Peers with the Real truth, concerning my Lords Vile, and un∣heard of Actions to your Ladyship?

Page  15
Countess.

My Noble Lords, I should be glad if a way might be found out, that I might deliver my Testimony in a Written Affidavit, and not by word of Mouth in this publick Audience.

Lord High Steward.

I will propound it to the Judges, and if the Law will allow it, you shall be at your own Election. My Lords the Judges, you have heard what the Coun∣tess desires of us; will you give your O∣pinions, and satisfie her Ladyship about it?

Lord Chief Justice Hyde.

By the Law, the Testimony relating to matter of fact, that is▪ what relates to the Charge in the Indictment, must be made Viva Voce, and not otherwise▪ and the reason is, because persons may take a greater liberty of inserting in an Affidavit, what is not really true; which the Awe of the Court, or asking apt Questions, may probably prevent, or discover the false∣hood.

Lord High Steward.

Your Ladyship I hope is satisfied with the Judges Opinion, and the Reasons on which its grounded.

Countess.

Why then my Lords, the first or second Night after we were Married, Antill came to our Bed, and the Lord Audly talk'd lasciviously to me, and told me my Body was his, and if I lay with any Man with his con∣sent, 'twas not my fault, but his. He made Skipwith come naked into our Chamber and Bed; and took delight in calling up his Servants to shew their Nudities, and forc'd Page  16 me to look upon them, and to commend those that had the longest. Broadway, a Ser∣vant of my Lord's, by his Lordships com∣mand, lay with me, and I making resistance, my Lord Audley held my hands, and one of my Feet, and I would have kill'd my self with a Knife afterwards, but he took it from me▪ before that Act of Broadway's, I had never done it. He delighted to see the Act done, and made Antill come into the Bed to us▪ and lie with me in such a marmer, as he might see it, and though I cry'd out, he never regarded the complaint I made, but incou∣raged the Ravisher.

Attorny General.

Pray Young Lady Audley▪ will you give my Lord High Steward, and these Lords an account, of your Fathers bar∣barous usage of you!

I was Married to my Husband by a Ro∣mish Priest in the Morning, and at Night by a Prebend of Killkenny. I was first com∣pell'd to lie with Skipwith, by the Earls per∣swasions and Threatnings, saying, I should have nothing but what Skipwith gave me. He saw Skipwith and I lie together several times, and so did many Servants of the House besides. He tempted me to lie with others also, telling me, my Husband did not love me, and if I would not, he would tell my Husband I did lie with them. He used Oyl to enter my Body first, for I was then but Twelve Years of Age, and usually lay with me by the Earls Privity and command.

Page  17 The next Evidence that appear'd was Sworn, was Broadway, to whom the So∣licitor General said, Broadway, give a true account of what you know of my Lord Audley's unnatural doings.

Broadway.

I lay at his Lordships Beds Feet, and in the Night he call'd for some Tobacco, which, when I brought to him, he caught hold of me, and bid me come to Bed, which I at first deny'd, but at last consented, and went into the Bed on the Lords side, but he turned me up∣on my Lady, and bid me lie with her; my Lord Audley held both her hands, and one of her Legs, and at last I lay with her, notwithstanding her resistance. The Lord Audley also us'd my Body as a Woman, but never Pierc'd it, only spent his Seed betwixt my Thighs. I have seen Skipwith lie with the young Lady in Bed, and when he got upon her, the Lord Audley stood by, and incourag'd him to get her with Child. He also made Skipwith lie with his own Lady, telling him he could not live long, and it might be the making of him, and the like he said to me!

Lord High Steward.

Pray Mr. Attor∣ney let Skipwith be call'd, that we may hear what he can say?

Page  18
Skipwith.

For the most part I lay in Bed with the Earl. He gave me his House in Salisbury, and a Mannor of Two Hundred and Sixty Pounds a Year. I lay with the young Lady very commonly, there being Love between us before and after. My Lord said he had rather have a Boy of my getting than of any other. She was but twelve Years of Age when first I day with her, and I could not en∣ter her Body but by Art, and my Lord gave me things to open her Body.

Sir John Finch.

Pray let Fitz-Patrick be call'd. Is your Name Fitz-Patrick?

Fitz-Patrick.

Yes, Sir.

Sir John Finch.

Well, be sure you speak the truth, and give these Lords the rue, and whole Account, of what you know concerning the Charge against my Lord Audley.

Fitz-Patrick.

Henry Skipwith was the great Favourite of my Lord Audley, he usually lay in bed with him, and the Lord would make him lye with his own Lady, and with the young Lady his Daughter, and these things I saw seve∣ral times, it being done in my Lords sight also. My Lord made me lye with him at Fount-hill and Salisbury, and once spent his Seed, but did not penetrate my Page  19 Body, and I understood he had often done the like with others. He kept a Woman in his House call'd Blandina, who was a Common Whore to his Lord∣ship, and his Servants. His House was a Common Brothel-House, and the Earl himself took delight not only in being an Actor, but a Spectator while other Men did it. Blandina was once abused by himself and Servants, for the space of seven Hours together, until she got the French Pox.

Lord High-Steward.

You Gentlemen of the King's Counsel, have you any more Witnesses to produce, if you have, pray be expeditious?

Mr. Sergeant Crew.

My Lord, we have several more, and desire that Frere may be Examined.

Lord High-Steward.

Where is he, call him.

Frere.

Here, my Lord.

Lord High-Steward.

Pray speak what you know about my Lord Audley; but be sure it be the Truth.

Frere.

I only know that Skipwith, and the young Lady Audley, lay several times together while my Lord was pre∣sent, and that he said he would feign have her have a Boy by him.

Page  20
Attorney General.

May it please your Grace, my Lord High-Steward, we have several Witnesses more to produce, but their Testimonies being the same your Lordships have already heard, and what I humbly conceive is sufficient to prove the Charge in the Indictment, against the Prisoner at the Bar, I shall give your Lordships no further trouble; but shall leave it to the clearness of the proofs which your Lordships have heard, for I know your Wisdoms to be such, that you know in so dark a business, a clea∣rer proof can't be made; for Men though ne're so wicked, do not use to call Wit∣nesses to see it; I shall say no more but commit the whole to your Lordships Considerations.

Lord High-Steward.

My Lord Aud∣ley, when I came first thither, I could not have believed there would have been such manifest proofs, as you find has been produc'd of horrible Crimes against a person of your Honour. I shall give you all the liberty you can desire in ma∣king your Defence, and therefore desire to know what you have to say for your self, in reference to what has been Sworn against you.

Page  21
Lord Audley.

I humbly thank your Grace for the favour you are pleased to grant me, though being no Scholar, nor learned in the Law, I have nothing to depend upon in my Defence, but my own Innocence, and your Lordships good Construction of my weakness. My Lords, I must acknowledge that Skipwith was but poor when he came to me, that he lay with me several times, when I was streightned for Room in my House, and being a good Servant I gave him good Rewards. Antil I thought deser∣ved my Favour also, and therefore had my Consent to Marry my Daughter, and I gave him a good Fortune with her.

Lord High-Steward.

I advise you my Lord, not to deny what is plainly proved against you, lest you give the Lords cause to suspect the Truth of the rest.

Lord Audley.

My Wife has been a Whore, and has had a Child, which I conceal'd to save her Honour. She, and my Son, and one Mr. William Wrough∣ton, have plotted against my Life, and all that's alledg'd against me is only their inventions, and gives a dangerous Example in the Kingdom; for no Peer, Page  22 or any other person, can be secure of his Life, that has (as I have,) a Wife who desires a younger Husband, and a Son that is gaping after my Estate, and has the Devil and wicked Servants to assist their Maliee, in indeavouring to take away my Life wrongfully. This my Lords, is my Condition, and I hope your Lordships will take care, that you don't involve the Peers, the Gentry, and Commons, under a dangerous Pre∣sident in my Condemnation; for, if a Wife of such a Character, may be al∣lowed to be a Witness against her Hus∣band, no Man is safe, when his Wife dislikes him, and would have a younger Husband.

Lord High-Steward.

If your Lord∣fhip had proved a Conspiracy to take away your Life, you had urged what had been material; but for want of proof it signifies nothing: However, I will propound your Objections to the Judges.

My Lords the Judges, Can a Rape be Committed against a Whore? And can a Wife be a Legal Witness against her Husband?

Page  23
Lord Chief-Justice.

If the Woman on whom the Crime is Committed, be a Whore, yet it may be a Ravishment: And in Civil Causes a Wife can't be a Witness against her Husband, but in Criminal Causes she may.

But, my Lord, what do you say to what these Fellows your Servants have Sworn against you?

Lord Audley.

They are persons of mean and base extraction, and suborn'd by my Wife and Son to take away my Life, and Witnesses, according to Law, should be honest Men, and of untain∣ted Reputation, which these are not. Fitz-Patritk is a Recusant, and there∣fore cannot be a Witness; besides, I have often beat him for his Knavery and turn'd him away, and now he is hired by my Son to Swear against me.

To which the Judges answered, it did not appear he was Convicted of Recusancy; that all are held Legal E∣vidences for the King, till they are Convicted of Crimes that may disable them; and as to their Reputation, no Men of unstain'd Credit, could be Wit∣nesses of such monstrous Inhumanities; besides, what the Witnesses have Sworn, Page  24 has put their own Lives into the same danger with his Lordship's.

Lord Audley.

My Lord, I desire to know, whether the Statute intends that all kind of pollution, Man with Man, is Buggery, or not, seeing the Witnes∣ses say there was no penetration?

Lord High-Steward.

My Lords the Judges, you hear the Lord Audley's Query, pray give him your Opini∣ons?

Lord Chief-Justice.

It is Buggery by the Law; for the Law of this Land makes no distinction of Buggery, if there be Emissio Seminis.

Lord High-Steward.

Are persons of mean Extraction, and of no Estates, suf∣ficient Evidences against a Baron?

Lord Chief-Justice.

Against any Man.

Lord High-Steward.

Is a Man that is Particeps Criminis, a party in the Crime, a Legal Witness against the Accused?

Lord Chief-Justice.

Yes, my Lord, for otherwise, Facts of this nature, would seldom or never be discovered, and till he is Attainted, he is (Bonus & legalis Ho∣mo) a Competent Evidence.

Then the Lords withdrew to consider of the Evidence, and being return'd, Page  25 the Lord High-Steward asked them one by one whether my Lord Audley was Guilty of the Rape, or not Guilty; and they Se∣riatim laying their Hands upon their Hearts, all answer'd Guilty. Then his Lordship ask'd them whether he was Guilty of Sodomy, or not Guilty; and fif∣teen of the six and twenty answer'd Guilty.

Then the Lieutenant of the Tower was Commanded to bring forth his Pri∣soner, and he being brought to the Bar, the Lord High-Steward spoke to him as followeth.

Lord High-Steward.

Mervyn Lord Audley, you have been Indicted of two Heinous Crimes, Rape, and Sodomy▪ you have pleaded not Guilty, and put your self upon God, and your Peers, who have found you Guilty of both, and now my Heart grieves for what my Tongue must utter▪ but Justice is the way to cut off all Wickedness.

O think upon the Turpitude of your Offences, with an unfeigned Sorrow, and a Sincere Repentance; and as your Crimes have been Abominable, so let your Mortification for them be as re∣markable. 'Tis not a slight and for∣mal Contrition can obliterate your Of∣fences, Page  26 for you have not only Sin'd against the Law of God and Nature, but against the Rage of Man, Jealou∣sie; and though you are not Con∣demn'd for that enormity, you caus'd your Daughter to be abused, and ha∣ving Honour and Fortune to leave be∣hind you, would have the spurious Issue of a Varlet to Inherit both. My Lord, I am sorry to see you so unconcerned, and that you discover no signs of Sorrow, or Repentance, for the Crimes you have Committed. How are you obliged to bless God, that his Judgments did not seize and hurry you away, with the load of these Sins upon your Conscience, and in the very Act of your Filthiness; but has (I hope) reserv'd you as a Subject of his Mercy, and when you were blinded in your Sins, has brought you to this day of Shame, that the sight of them might turn you to him by Shame, Sorrow, and Repentance. These, my Lord, are Arguments that invite you to lay hold of his Mercy, and secure a happy Eternity, and there∣fore I advise you, to improve this op∣portunity, and for the few Moments you have to Live, indeavour to wash Page  27 away your Crimes in Tears of true Repentance, for the many Crimes you have Committed; That the Sentence I am going to Pronounce, may prevent your dreadful Doom from God Al∣mighty.

The SENTENCE. For as much as Thou Mervyn Lord Audley, hast been Indicted of divers Fellonies, and by thy Peers hast been found Guilty of them, thy SENTENCE therefore is, That Thou return to the place from whence Thou camest, and from thence to the place of Execution, and there be Hang'd by the Neck, till thy Body be Dead. And the Lord have Mercy on Thee.

The Lord Audley hearing his Sentence, fell upon his Knees, denied the Fact, and desired the Lords to intercede with His Majesty, to grant him a little time to reconcile himself to God; which their Lordships promised they would, and then the Court was dissolved.

At the Intercession of the Lords, he had time given him by the King till Saturday the Fourteenth of May, and the SENTENCE was changed Page  28 into that of Beheading. His Coffin was sent to him about a Week be∣fore his Death, and he was daily vi∣sited by Dr. Wickham, Dean of S. Paul's▪ to prepare himself for his Dissolution. The Day of his Execution being come, he ascended a Scaffold on Tower-Hill, in a plain Black Grogram Suit, a fall∣ing Band, and a Black Hat without a Band; Accompanied by Dr. Winnerf, and Dr. Wickham, and several Noble∣men and Gentlemen. Then he address'd himself to Prayers, and having done, he stood upon his Legs, and leaning upon the two Deans, after a short and private Conference with them, he tur∣ned to the Lords and spoke as fol∣lows.

I Thankfully acknowledge the great good∣ness of Almighty God, whose Divine Ma∣jesty has bestow'd upon me Honour, Ri∣ches, and other Endowments, which I have mispent in a Vicious Life, and have justly deserv'd Death, as the Re∣ward of my Sins against God; but for the two Heinous Crimes for which I am now to Suffer, I deny them upon my Death, and freely forgive all that have been any way accessary to it; even as Page  29 heartily as I desire Forgiveness at the Hands of God, which I hope to obtain through his Infinite Goodness and Mer∣cy, and the assistance of your Prayers, which I humbly beg of your Lordships, and this whole Assembly.

It has been Reported to my Disadvan∣tage, that I have been unsetled in my Re∣ligion, and therefore I have made a Con∣fession of it to these two worthy Doctors, and have Publish'd it in Print under my Hand a Week since, and do now again Re∣nounce all the Errors and Superstitions Taught by the Church of Rome, or any o∣ther Church; and declare my self a Mem∣ber of the Church of England, and sted∣fastly Believe all the Articles of that Church, as they are confirmed by Authority of Par∣liament.

Having thus acquainted you with the Ar∣ticles of my Faith, I must next acknowledge the great Justice and Mercy of the King's Majesty. His Justice in bringing me to a Tryal, and his Mercy in appointing me to be Tryed by such Noble Peers, and in as∣signing me this kind of Death, rather than that pronounc'd in my Sentence; but above all, for giving me so long a time to repent Page  30 in, and sending these two worthy Divines to assist me; for I hope, nay, can speak it to my Comfort, that I have made such good use of these Favours, that I am fully pre∣par'd to Die, and before you all give my hearty Thanks to these two good Men, for the great pains they have taken in coming to me, praying for me, and Preaching and Reading to me; and I desire your Lord∣ships will give my humble Thanks to the King for sending them to me, and for all the rest of his Favours; for which I pray God to Bless His Majesty, the Queen, the young Prince, the King and Queen of Bohe∣mia, and all the Royal Family. And now my Lords, and all you who are Spectators, I humbly request you that you would remove your Eyes from me, and your Thoughts from what I am to suffer, and lift up your Eyes, your Hands, and your Hearts, to Heaven in Prayer for me; and so I take my last Farewell of your Lordships, and all the World.

After this, his Lordship betook him∣self to his private Prayers, and then un∣drest, and prepar'd himself to receive the Fatal Stroke: Then taking leave again of the Lords and Doctors, he prayed a while by himself, pull'd his Page  31 Hankerchief over his Face, laid his Neck upon the Block, and having gi∣ven the Sign, the Executioner at one Blow, divided his Head from his Bo∣dy.

FINIS.