INDICTMENT.

COSMO GORDON proceedingsdefend , late of the Parish of St. George, Hanover-square. in the County of Middlesex , Esq ; otherwise called the Honourable Cosmo Gordon < no role > , late of the same, was indicted, for that he, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the 4th day of September, in the 23d year of his present Majesty's reign , with force and arms in and upon Frederick Thomas proceedingsvictim , Esq ; in the peace of God and our lord the King then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault, and that he a certain pistol, value 5 s. then and there charged with gun powder, and one leaden bullet, which he the said Cosmo Gordon < no role > in his right-hand then and there had and held, did discharge and shoot off, well knowing the same to be charged as aforesaid; and then and there, by force of the gunpowder aforesaid, the said Frederick Thomas < no role > with the leaden bullet aforesaid, so discharged and shot off from the said pistol as aforesaid, feloniously, wilfully, and of his malice aforethought, did strike, penetrate, and wound, giving to him, the said Frederick Thomas < no role > , with the said leaden bullet as aforesaid, by force of the gunpowder from and out of the said pistol so discharged and shot off as aforesaid, in and upon the right side of the belly of the said Frederick, one mortal wound of the length of one inch, and of the depth of fourteen inches, of which said mortal wound the said Frederick Thomas < no role > , from the said 4th to the 5th day of September did languish, and languishing did live; and on which said 5th day of September the said Frederick Thomas < no role > of the said mortal wound, so given by the said Cosmo Gordon < no role > by the said leaden bullet as aforesaid, by force of the gunpowder from and out of the said pistol so discharged and shot off as aforesaid, did die; and so the Jurors aforesaid, upon their oaths say, that him the said Frederick Thomas < no role > , he the said Cosmo Gordon < no role > did kill and murder.

He was also charged upon the Coroner's inquisition with the like murder.

JURY.

Joseph Wateridge proceedingsjury ,

Richard Egan proceedingsjury ,

Edward Bower proceedingsjury ,

Thomas Burne proceedingsjury ,

John Fenn proceedingsjury ,

George Presser proceedingsjury ,

John Kupky proceedingsjury ,

John Marshall proceedingsjury ,

Ebenezer Taylor proceedingsjury ,

William Wootton proceedingsjury ,

Joseph Nunn proceedingsjury ,

Edward Palmer proceedingsjury .

Council for the Crown.

Mr. Graham,

Mr. Reeve.

Council for the Prisoner.

Mr. Mansfield,

Mr. Silvester,

Mr. Fielding,

Mr. Garrow.

Mr. Reeves opened the indictment; and Mr. Graham opened the case as follows:

May it please your Lordship, and you Gentlemen of the Jury, I am likewise of Council in this prosecution; the charges have been distinctly read and repeated to you, and it is scarcely necessary for me to say, that they amount to no less than this, the wilfully and maliciously taking away the life of a fellow subject. Gentlemen, with respect to the law relating to the matter now in question, I shall say nothing, because that experience which you have of questions of this kind, grafted upon natural good sense, has given you a sagacity and judgement that is fully adequate to ordinary cases, and if the case I am about to state to you gives rise to any circumstances of novelty or doubt, you may be confident of receiving every light, that the nature of such a case may admit of, and the most luminous and most satisfactory explanation from the learned Judges. Gentlemen, I think it necessary, and I hope I shall not exceed the bounds of my duty (but if I do, I hope I shall be interrupted) by going back to the origin of that unfortunate quarrel, which terminated with the loss of a valuable life; valuable to the public; and more so to his private connections; and for the loss of which, you are now to make a solemn enquiry. Gentlemen, the deceased, Colonel Frederick Thomas < no role > , was captain of a company in the third regiment, which ranks as you well know as Lieutenant Colonel; the prisoner at the bar, the Honourable Cosmo Gordon < no role > , had likewise a company in the same regiment, with the rank of Lieutenant Colonel , but was the senior officer: they were in America, the main body of the army was encamped at Elizabeth Town < no role > , in the Jerseys; the corps, consisting of two battalions, was, in June 1782, detached on some military service, not necessary to mention; in the course of this service, it became necessary on the 23d of June, that the Guards particularly should be employed in dislodging a part of the enemy, from a certain heighth they had occupied in a neighbourhood, called Bran Fields, in the Jerseys, the command of these two battalions devolved on the prisoner; Colonel Thomas was his junior officer; it happened most unfortunately, that in the performance of that service, which was attended with some risque, Colonel Thomas was one of the first officers to ascend the heights, and knowing he had not the command of the business of that day, he sent, I believe, more than one messenger to require the assistance of Colonel Gordon; still more unfortunately, this messenger brought a report that Colonel Gordon was not to be found: that work of risque, whatever it was, was performed without much loss on our side, and Colonel Thomas remained master of the heighth, with no enemy near. Soon after this, which perhaps was not deserving the name of an engagement, Colonel Thomas, with an impetucsity which cannot be justified, as he ought certainly to have possessed himself more than he did, immediately at the sight of the prisoner, expostulated with him in terms of more than mere enquiry, and conveying considerable reproof that he was not there; Colonel Gordon gave him his reasons, which no doubt appeared to be such as justified the conduct of an honourable man; those reasons did not satisfy Colonel Thomas, he persisted in his charge, Colonel Gordon took no notice of it, they returned to the camp, and on their return Colonel Thomas spoke very freely his disapprobation of the conduct of the prisoner in his hearing, but no notice was taken of that: it happened however that the prisoner received from a straggling shot of the enemy a contusion, which made it necessary to quit the army; he continued absent near a month, on his return to join the camp, he found, in conversation with more than one officer, Colonel Thomas had persisted in those charges of misconduct, and found it necessary, in vindication of his character as a soldier and a man of honour, to bring the matter to some sort of explanation, with that view he applied to the Brigade Major to assemble two battalions of Guards, they were assembled, and Colonel Gordon then intimated to the officers then present, that some gentleman had been free with his reputation as a soldier, and called upon them publickly to avow it; after some little reluctance Colonel Thomas stepped forwards, and avowed himself the author of those charges, that he had made them publickly, that he had made them under a conviction which appearances at that time gave him and was ready upon any occasion to a and maintain them: upon this the prisoner as his superior commanding officer, ordered him under an arrest, and his sword was taken from him, and he was very soon after brought to trial at a Court Martial; that trial took place, and Gentlemen, you will please to attend to the dates, as they may be material. On the 15th of September 1780, this charge was preferred by the prisoner on that occasion, which was in substance, and I believe pretty nearly in terms thus: That the deceased Colonel Thomas had secretly and scandalcusly aspersed his character as an officer, in a manner unbecoming a soldier and a gentleman, during his absence, by saying that he, Colonel Thomas, had commanded the Guards on the day of the affair at Bran Fields. This charge was brought forward and supported by such evidence as the prisoner could procure, and defended by Colonel Thomas: the issue of that enquiry, which lasted from the 15th of September to the 23d of the same month, was, the Court Martial found Colonel Thomas was not guilty of the charge, therefore they acquitted him. But, Gentlemen, I thing it is but justice, and a debt I owe to truth, I think myself bound to say, that the acquittal of Colonel Thomas upon that occasion does not conclude the truth of his charge against the prisoner, and only applies to this, that the prisoner had misconceived the charge, it was that sort of open public charge, which he made from that conviction in his own mind, resulting from appearances in disfavour of the prisoner, which till then had not been explained: and, Gentlemen, soon after this acquittal, and while the deceased Colonel Thomas remained under an arrest, the prisoner sent him a challenge, conceived in the ordinary terms; the answer to which was, he should not meet him, being under an arrest *, and he accompanied that answer with positive orders to his servant, to receive no letters of any kind from the prisoner at the bar. Gentlemen, this master rested between the deceased and the prisoner, during the whole of the two years in which both of them remained abroad, employed in the service of their country; and I am not apprised of any fact that is at all material to the case now before you down to the month of August 1782; but in August 1782, the prisoner at the bar applied for, and obtained a Court Martial upon this supposed charge, which had so frequently been asserted: Colonel Thomas stood forward on that occasion to maintain the charge, which was in words this: That the prisoner had not done his duty on the 23d of June 1780. I need hardly observe to you, that in the long interval of two years, at a time and season abounding with risques and perils of many kinds, that many of those persons competent to substantiate or defend the charge, were either dead or dispersed; but when I say this, I should act contrary to my feelings as a man, and also to justice, if I did not at the same time inform you, that Colonel Gordon, whose character is now at stake as well as his life, and perhaps to him as a man of honour is more valuable, Colonel Gordon did consent that the enquiry then instituted should receive every light which the then circumstances of affairs would admit, and by his consent, all that evidence which had been brought forward on the one side and on the other should be read on this Court Martial; it is true, that the cases being somewhat different, much of that evidence might not be so much suited to substantiate the charge, which was of a different nature, and brought forward against the prisoner. Colonel Thomas on that occasion did go considerably out of the line of his defence, and call evidence tending to substantiate that charge he had put about, for several witnesses were examined who spoke to those circumstances, which unfortunately for the deceased, he had considered in an unfavourable manner to the prisoner at the bar. - Gentlemen, this enquiry commenced in August, 1782. and determined the 4th of September following, when that was ended the army broke up, or very soon after, and Colonel Thomas came to England, for on the 14th of November, 1782, Colonel Thomas returned to England, the prisoner did not return till the latter end of May, or the beginning of June following; and upon his returning to England, about three weeks after he returned, he sent a letter, which you will have read in evidence presently; that letter was dated the 20th of June, 1783, and was in the ordinary terms of persons who conceived their honour was injured, and demanding peremptory satisfaction; Gentlemen, it will be necessary for me to read to you, that it may be impressed upon your minds, the answer sent upon that occasion; it was thus - it is dated on the same day, Friday morning, 20th of June 1783,

"Sir, I have received your challenge, which as I am not a fool or a mad man, I shall not accept at this late hour; almost three years have elapsed since the Court-Martial you brought me to, acquitted me of your charge; and I shall not now be responsible to you, for any part of my conduct previous to it, as you preferred, and actually sought a public investigation of the matter; the charge on which you was tried was not justly or unjustly brought by me, and the witnesses who were all existing in September, 1780, were either killed or dispersed in September, 1782; however, Sir, do not deceive yourself, for as I have acted hitherto with firmness and propriety, I do not mean now to lay them aside, and be assured the man who dares to attack me, shall find me inclined, and perfectly able to make use of my sword, as he who dares insult me, shall abide by the consequence: I am, Sir, your obedien: servant, Frederick Thomas < no role > . - Addressed to the honourable Colonel Gordon: - Gentlemen, after this letter, about ten days afterwards, the deceased, Colonel Thomas went into the country, and remained there till the 3d of September, in the same year; upon his return to town about one o'clock, he found laying upon his table, a letter from an officer of rank and consideration in the army, Major Skelly < no role > ; begging to speak to him, he thought himself bound to see him and talk to him on the subject, he did see him in the course of the next day; what passed perticularly in conversation between them we do not know, but this is perfectly clear from a paper which has been since found in the custody of Colonel Thomas, in the hand writing of Colonel Gordon, but Major Skelly < no role > delivered the letter now about to be read to you, to Colonel Thomas: the letter is dated the 18th of Septe mber, 1783.

"Poland-street, No. 8. September 3d, 1783. Sir, your return for which I have impatiently waited, gives me at last an opportunity of expressing my astonishment at the purport of your letter, dated the 20th of June, wherein you a second time deny me that satisfaction, which as an injured person I have a right to expect at your hands, I am equally surprized that you again make use of this expression, that late hour, when you must be sensible it was the hour you appointed, likewise when I have proved upon oath your original accusation was ill-grounded:" - Gentlemen, I beg to observe, that the Court-Martial of General Officers, found the prisoner at the bar not guilty of neglect of duty that day, and that he was honourably acquitted.

"I delayed till the Court-Martial had fully and honourably acquitted me, and till I had made my obeisance to his Majesty for the gracious mark of his favour I had lately received, looking then upon every objection to be removed, I requested you to fulfil your promise, which you thought proper to decline; I am now Sir, under the necessity of acquainting you, that you must either resolve to meet me at six to-morrow morning with pistols, at the ring at Hyde Park, in company with a friend; or submit to be held up to the world in a most dishonourable light; with respect to what you mentioned of defending your person, I have only to observe, that whilst there are other modes by which gentlemen may decide their differences, I shall never adopt that of an assassin: I am, Sir, your most obedient servant, Cosmo Gordon < no role > . - Addressed to Lieutenant Colonel Thomas." - Gentlemen, this letter with the visit of Major Skelly < no role > , produced the effect of bringing to the field the deceased, with great reluctance on his part, purely arising from an unhappy opinion which he had conceived, and which I do not myself think well founded, that the conduct of the prisoner at the bar to him, and throughout as an officer, had not intitled him to that sort of satisfaction; the day appointed to meet was the succeeding day of the date of this letter; Colonel Thomas applied to a friend of his, to accompany him on this fatal occasion, that friend consented with all the reluctance of a man of feeling, he called on him at four, at five they were ready to proceed to the ring, there they were soon afterwards joined by the prisoner, and I believe Major Skelly < no role > ; and I think it my duty to state to you, that upon this occasion as far as I am informed, every thing was transacted fairly as it is said, between men of honour; the deceased, Colonel Thomas, attended with two brace of pistols, one larger and the other pocket pistols, he loaded his own pistol, Captain Hill was his second, Colonel Gordon loaded his on the spot, they advanced about the distance of eight yards, and both fired, or meant to fire at the same time; the pistol of the deceased flashed in the pan, the prisoner applied to the gentlemen present-whether that ought not to be deemed the deceased's fire; he was soon after over-ruled, and the deceased was permitted to fire; after this they took other pistols and fired again, the pistol ball of the deceased struck the prisoner somewhere on the right side, but did not penetrate his body, unfortunately the pistol shot of the prisoner struck the deceased, and penetrated into his bowels, he fell with the wound, a Surgeon was at hand, and he saw the state of the wound, he extracted the ball, and the deceased was carried home to his own lodgings, where another Surgeon of great skill and ability was called in; they very soon saw it was impossible that the deceased should live, and it is hardly necessary for me to state, that the next day this unfortunate young gentleman died, in consequence of that wound: - Gentlemen, I have thus as faithfully as I am able, stated to you the circumstances of this melancholly case; and, Gentlemen, how far the resentment of a man of feeling may be kept alive by an injury, or supposed injury of a serious nature, it is not for me to decide; far less is it for me to prescribe to you Gentlemen, that latitude of indulgence which you may allow to a Soldier, irritated by a wound to his honour, and labouring under the dominion of prevailing prejudices; I should be extremely unwilling to state to you my ideas of the law upon the subject, left professional habits, and abstract reasoning should have tied up my notions of indulgence, inconsistent with the manners of the times; I would rather chuse that the prosecution should rest on the evidence, or upon that which you will receive from those whose duty it is, and whose inclination I am sure it will be, to represent the case to you, in it's pure and genuine light and complexion; I, Gentlemen, am perfectly persuaded, that on the one hand you will bestow the most indulgent attention to every favourable circumstance, in extenuation of human infirmity, which the nature of the case will admit; while on the other hand, I trust you will not be too much deluded by those fantastical rules of honour, which custom has set up in opposition, I am affraid, to founder rules of conduct: and I am persuaded that in this case, you will give force and efficacy to those laws, which are formed by the wisdom of ages, and founded in the established principles of truth and justice.

* Had Colonel Gordon entered upon his Defence at large, he would have explained this matter, in which the learned Council who opened the Case was misinstructed, for Colonel Thomas was not in arrest; when the first Challenge was sent, which was the 15th of October 1780, Colonel Thomas was then walking the Parade and streets of New York, wearing his sword, and in his refusal to meet Colonel Gordon he did not pretend to be in arrest, but declined the meeting, assigning for a reason, that the matter was then depending and undetermined.

JAMES MEYRICK < no role > sworn.

Examined by Mr. Reeves.

I think you are agent to Colonel Gordon? - Yes.

Have you ever seen him write? - Yes.

Did you frequently receive letters from him on business? - Yes.

Mr. Mansfield, Colonel Gordon's Council. I beg your pardon; not seen his writing, but seen him write? - Seen him write, Sir.

Mr. Reeves. Do you take that to be Colonel Gordon's hand writing? - I do.

Mr. Baron Eyre < no role > . You produce papers at present, I do not know whether they relate to the subject, or whether they were ever out of the Colonel's possession.

THOMAS HOBBS < no role > sworn.

Examined by Mr. Graham.

I think you lived some time with, and was servant to Colonel Thomas? - I was.

Was you servant with him on the 3d of September? - I was.

Do you know Major Skelly < no role > ? - Yes.

Do you remember Major Skelly < no role > being at your master's house, either on the 2d or 3d of September 1783? - On my return home on the 3d of September 1783, I met Major Skelly < no role > coming out of the door.

Look at that letter, and see whether you know any thing of that letter, and tell us where that letter was found? - I know nothing of it.

Did you ever see that letter any where? - I did not.

Look at this letter? - That letter I have seen.

Where did you see that letter? - On my master's table, in his room, he shewed it to me himself.

Do you know of any conversation that passed between Major Skelly < no role > and your master? - No.

Mr. Graham. I submit to your Lordships, that this first letter in June is now fully in proof to be read.

Cross-examined by Mr. Mansfield.

You was servant you say to Colonel Thomas? - Yes.

The gentleman has put a letter into your hand, which you say you saw in his possession; did you read it? - I did.

Did you make any mark upon it? - I took a copy of it.

Have you got that copy? - I have got it, but I have not got the date of it.

Let me see it; when did you write this? - The day that I first saw the letter.

Then you have not written it lately? - No.

Mr. Graham. Do you remember when your master came to town? - In the beginning of September last.

What time was it? - About one o'clock on Tuesday the 2d.

There were several notes left for him? - A gentleman in the afternoon brought a letter for him, I was not at home, but there were positive orders to give it to Colonel Thomas, and I gave Colonel Thomas < no role > a letter that night, which he did not open.

When did he open it? - I carried it up to him on the 3d of September, in the morning, when he was in bed; he asked me when it came; I said yesterday, I gave it you; he immediately wrote an answer, he sent me up stairs into the bed room to fetch the letter, I saw it was signed Skelly, Bury-street, St. James's, but which number I do not know.

(A chair was ordered for the Colonel.)

Do you remember the deceased Colonel having had any conversation with an officer in the army on the 3d of September 1783? - No other gentleman was with him that day but Major Skelly < no role > , for after that he told me to say, if any gentleman called, he was not at home.

Do you remember any particular orders that he gave you on the 3d of September, about calling him the next morning?

Mr. Mansfield. I do not know whether I should object to this conversation?

Mr. Baron Eyre < no role > . Conversation is one thing, orders are another; that is a matter of fact. - He went out about seven in the evening, and returned about eleven; when he went up stairs he said, Hobbs, you must call me as soon as it is light to-morrow morning.

Did you call him the next morning? - I did, a little after four.

Did any gentleman come to meet him about that time, or soon after that time, and who was it? - Captain Hill came in about twenty minutes after.

Did they stay long in your master's house together? - Half an hour, or three quarters of an hour.

Did they go out together any where? - Both of them went out together.

Did you see them take any thing with them? - I saw nothing but my master's sword, they had pistols in the room, I saw them before they went out, but I did not see them take any.

Court. Where were the pistols laying? - In the room, on the table.

How many? - A brace of large pistols and a brace of all ones.

Do you recollect any thing of loading the pistols? - To the best of my remembrance I saw Captain Hill load them.

What time did they go out? - About half after five.

After they were gone out were the pistols in the same place? - They were not.

Mr. Graham. Whereabouts was your master Colonel Thomas's house? - In Park-street, opposite Grosvenor-gate.

Had it any view to Hyde-Park? - It had.

From your master's house did you see where they went? - I saw them go into Hyde-Park.

Did they go on foot? - They did through Grosvenor-gate.

Do you know to what place they made? - They turned to the left-hand, and went strait down, and then went to the place they call the Ring, I saw that distinctly.

You know the person of Colonel Gordon? - I do.

Did you that morning see Colonel Gordon, and any body with him? - I saw him get out of a coach, and another Gentleman with him, which I took to be Major Skelly < no role > , I am perfect it was Major Skelly < no role > , I met him going out of the Park afterwards.

To what part did they go? - They went straight on.

Court. Where did they got out of the coach? - At Grosvenor-gate, that was before my master went to the Park, they went to the same place where I observed my master to go.

You could not see Colonel Gordon and Colonel Thomas together? - I could distinguish at that distance which was Colonel Thomas, but not which was Colonel Gordon.

Did you observe or hear the firing of pistols? - Presently after they met about the Ring I heard two.

Court. Did you watch them with your eyes so as to see them meet? - I did, from my own garret window.

Mr. Graham. Did you hear the firing of any more pistols than two? - Yes, soon after that I heard the firing of another, and then another.

After the firing the next pistol what did you next observe? - I saw two gentlemen run up to Colonel Thomas; I saw him fall.

Court. At what moment? - At the firing the fourth pistol, which was the last that I heard; I saw two men run in the Ring, and I saw my master lay down.

Your master was soon after brought home? - He was.

He had received a wound, did you see it? - I did, it was somewhere on the left or right side, I cannot say which, I believe it was the right side; the ball was extracted as soon as he was brought home: on seeing him fall I ran to him, and immediately Mr. Grant met me, and said go back and get the bed ready; he was brought home in about twenty minutes after, then in undressing him I perceived the wound.

Was any other surgeon sent for? - Mr. Hunter was there, but who sent for him I do not know.

How long did your master lay in bed before he died? - About twenty-four hours; he died the next morning at a quarter past six.

Had you any conversation with him? - I had.

After he had received the wound? - Yes.

Did he say of whom he received the wound? - He never mentioned the name.

He was sensible he had received his death wound? - He was sensible to the very last.

Do you remember any thing particular that he said in the few hours he lived? - In the course of the night I remember his using the expression, the villain! the villain!

You was servant to him in America in the year 1780? - Yes.

You were a soldier in the Guards then? - Yes.

Do you recollect in the year 1782 any message sent by the prisoner to the deceased Colonel Thomas? - I recollect very well, in October 1782.

Who brought that message? - Colonel Gordon's servant, his name was Varr, he brought a letter sealed up.

Did you see the contents of that letter? - I did.

Was that letter left with your master? - My master was then at Mr. Kemp's, the King's Attorney General, I have seen the letter since hundreds of times, I saw it about ten weeks before he died, when we went to Wales.

Do you remember when that note was received whether Colonel Thomas sent any answer? - I carried an answer back.

Was it a verbal answer, or a written letter? - A letter, I delivered it to Colonel Gordon's servant.

Did you see the contents of that letter? - I did not.

Do you know what it contained? - I do not.

Do you remember, that on the 20th of June, after your master returned to England, a letter was received by your master from Colonel Gordon? - It was in June, I carried an answer back to Colonel Gordon, I delivered it to Colonel Gordon's servant, No. 52, Great Marlborough-street.

Was it copied in your presence? - Yes.

Is that a copy of it? - Yes.

Mr. Graham. My Lord, now I propose to read, what appears to me to be sufficiently proved, the letter dated the 20th of June 1783, and the answer that Colonel Thomas sent to it.

Mr. Mansfield. My Lord, as to the copy, which they call the answer, I shall certainly object to its being produced; it is for your Lordship's judgment to say, whether as there is no mark put upon it, the original answer ought not to be produced and read?

(The letter read.)

Signed

" Cosmo Gordon < no role > , Great Marlborough-street, 20th of June, 1783, seven o'clock."

"Sir,

"Having had a full and honourable acquittal of the charge you brought against me, I desire you will give me personal satisfaction, and meet me with a friend and two brace of pistols and a sword, at the Ring, in Hyde Park.

"Your injured obedient servant,

" Cosmo Gordon < no role > ."

Addressed to Colonel Thomas.

Mr. Graham. My Lord, with respect to the answer, that answer cannot be in our custody, and I submit to your Lordships, that in this case, the best evidence is an examined copy, which we now produce.

Mr. Mansfield. I do not know that it is a copy at present; the servant to whom it was delivered is not produced, nor any notice given to that servant to produce the letter; therefore, supposing it to be a copy, I take it to be very clear it cannot be read; the objection is, that notice should have been given to the servant to whom the original was delivered.

Mr. Graham. My Lord, we have given notice to Colonel Gordon to produce it.

Court. What! notice to the man who stands charged to produce a paper against himself! It is very well in point of candour to be sure to apprize him, that he may have an opportunity of checking the evidence.

Mr. Graham. My Lord, I submit, that with respect to the servant, it is a fair presumption that this letter, being delivered at the door of his master's house, it was received by his master.

Mr. Mansfield. My Lord, they ought to have gone to that servant, to have enquired of him what became of that letter, and to have given him notice to have produced that letter here; they have not done that, they have taken no pains to produce that original which exists for any thing that appears to the contrary. Your Lordship sees the original may exist, and they have taken no pains to produce it to this Court.

Mr. Graham. In a common course of business, if a letter is delivered to a man's servant, it is supposed that his master receives it, and this letter not being produced from that quarter, where it could alone be produced, I submit to your Lordship this copy is the best evidence that we are now in possession of, and I humbly hope we may be permitted to read it, without any offence to justice.

Mr. Mansfield. My Lord, I do not rest my objection simply upon this letter not being proved to have come to Colonel Gordon's hands, but your Lordship sees here is no notice whatever proved, not even the notice to Colonel Gordon; but indeed, as to that, I never knew any such notice in a criminal case. There is no proof of the letters coming to Colonel Gordon, there is no proof of any notice to that servant.

Mr. Graham. In cases of foreign correspondence I do not apprehend it is ever required of the parties in common and ordinary business, to give such notice, or to prove any particular letter in such correspondence, because the person who originally received a particular letter may be removed to the remotest corner of the earth, but the copy being the next evidence, is admitted.

Mr. Baron Eyre < no role > . This case may possibly be governed best in civil suits, upon principles of convenience rather than strict rigorous justice; the only difficulty I feel in this case is, with respect to the servant not having been produced, but my present sentiments on that subject are, that it ought not to prevent the letter going to the Jury, subject to the observations which may be made upon it of the possibility of its not having reached Colonel Gordon, and subject to any evidence Colonel Gordon may bring to prove it did not reach him. The ground of my reason is this, Colonel Gordon's servant is the person who brings the letter to Colonel Thomas, to which this letter is an answer, therefore he makes his servant the agent, first to bring the letter, and then to receive the letter, which is the answer; therefore, I think it is evident that that letter did come to the hands of Colonel Gordon, and I think it is admissible evidence, though not conclusive: in a criminal case notice is not necessary to the party accused, and it lays no obligation at all on the person to produce the paper called for, and the next best evidence cannot be admitted upon that ground, namely, because the party upon notice has refused to produce the best evidence; but it ought to be received upon this ground, namely, that it is the best evidence he can produce, for he has no right to call on the prisoner to produce a better. It has happened, there are many case in the trials on this point, and, I believe, the rule was so laid down in Mr. Layer's trial; and lately, in a case in the Exchequer, there was an informati on against Mr. La Merchant, for some smuggling practices, and it was held, that it was not necessary to give the notice, and that the next best evidence in the power of the party, which was the contents of the paper, was admissible: and I hold further, it is not at all necessary the next best evidence should be a copy, if a copy was taken, that being the best evidence is to be produced? but if not a copy, minutes; if not minutes, I hold that the recollection of the party who saw the letter is admissible; subject to observations certainly on the fallibility of it to the Jury; but as to the admissibility I have no doubt. But as I have the happiness of very great assistance at this time, I hope I shall have the opinions of my learned brothers; I am sure I shall be very ready to abandon mine.

Mr. Mansfield. It does not, nor can it appear, that this letter so written by Colonel Thomas, was in answer to that letter which Colonel Gordon's servant carried to Colonel Thomas, because the contents of that letter did not appear.

Mr. Baron Eyre < no role > . That is matter of observation upon the evidence; the question is, whether it should go to the Jury: if an answer appears to be sent to Colonel Gordon, referring to such a letter, I should think it sufficient.

Mr. Justice Gould. I have some difficulty on this matter: the rule of law is, that the best evidence ought to be given, and I remember in the case of the King versus Francia, in the State Trials, when the messengers seized the papers, they found a book, which the prisoner said contained a copy of his literary correspondence, in which were inserted copies of a great number of letters, and answers between foreigners and some that were tried for high treason, in corresponding with the King's enemies, and in that case the Court admitted the contents and purport of these copies, as evidence that he had received letters from abroad from the French Ministers, without producing them; it was collected therefore from the nature of the answers, the copies of which were inserted in this book; that he had received such treasonable letters, although the originals could not be produced, that being impossible: but in the present case the question is, whether this letter, of which Mr. Hobbs, the witness, says he took this copy now offered to be produced, did come to the hands of Colonel Gordon; he says he delivered the original, of which he swears that is a copy, into the hands of Colonel Gordon's servant, at his house; the probability and natural presumption is, that it did come to the hands of Colonel Gordon; but the Jury are not to go upon presumptions, there is nothing but a violent presumption that is admissible evidence at all to charge a person with a crime; it is probable that this letter was delivered by this servant to Colonel Gordon, but it might be otherwise, and that matter must be cleared up before the copy of this letter can go to the Jury. There is no pretence that this servant is out of the kingdom, if he was, it would be a ground for admitting this evidence on a different principle, but here has been remissness on the part of the prosecution, in not calling on this servant and ordering him to attend here; therefore, that being so, and life being at stake, so far as this is a circumstance, and it appearing to the Court that clear and unquestionable evidence might have been given of this circumstance, I, for my own part, am of opinion, that the copy should not be read; I give it with great deference to the opinion of my learned brother.

Mr. Baron Hotham < no role > . I apprehend that we are not now arrived at that stage of this business to say how far this, as to the ultimate event of things, is to affect Colonel Gordon or not; the only question is, whether this is admissible evidence to go to the Jury; I apprehend, from what we have heard, namely, that a letter was sent by Colonel Gordon to Colonel Thomas, and delivered to him by Colonel Gordon's servant, and he, the witness Colonel Thomas's servant, carried an answer to that letter, which he delivered to Colonel Gordon's servant; I think it is admissible evidence to go to a Jury: how far it will affect Colonel Gordon or no, is matter of observation, and for the Jury to decide on, but it seems to me, in the present state of things, to be the best evidence that the prosecutor's Council have in their power to produce; the original answer itself they cannot have, that is in the custody of Colonel Gordon: they might have subpoened Colonel Gordon's servant, but they have not, nor do I see it necessary that they should: if they meant to have proved, that Colonel Gordon's servant actually delivered it to Colonel Gordon himself, they might have done it; but if they chuse to rest with what evidence they are possessed of, namely, that such a letter was delivered, and chuse to rest it with the Jury, to decide whether they will suppose and presume the servant delivered it to his master, Colonel Gordon, I think they have gone far enough; and my opinion is, that in this stage of the business, the evidence is admissible; the consequences of it will be for the Jury to observe, subject to such observations as shall be made upon it.

Mr. Mansfield to Hobbs. This is a copy; who made this copy? - Colonel Thomas.

You did not read it when he had written it? - I read it myself.

Did you compare this with what was carried away? - Yes, and Colonel Thomas at the same time wrapped it up and the answer with it. and wrote upon it at the same time,

"Colonel Gordon's challenge to me, and my answer."

(The letter read, dated Friday morning, the 23d of June, as stated in the opening.)

Mr. Mansfield. How long after this letter was received was it the answer was carried? - In an hour.

ALEXANDER GRANT < no role > sworn.

Examined by Mr. Reeves.

I am a surgeon, I attended this unfortunate affair; on hearing the sound of a pistol I went towards the spot.

Where was you? - I was at Grosvenor's-gate.

You came with somebody I suppose? - I came with Major Skelly < no role > and Colonel Gordon to Grosvenor-gate, a little before six, between five and six.

Court. Where did you come from? - From Bury-street.

Whose house? - Major Skelly < no role > 's.

Did you come in company with Major Skelly < no role > and Colonel Gordon? - Yes, they got out of the coach, and went into the Park, I remained in the coach, but hearing a pistol go off, I got out.

Was you able from the coach to see what passed in the Park? - No, I was not, but when I heard the sound of one pistol I got out of the coach and went into the Park, and I saw a great number of people; I went on towards the spot where I heard the sound, fronting the place called the Ring, I ran towards the place, and met Major Skelly < no role > coming for me, he told me to be as quick as possible, and go to Colonel Thomas, who was wounded; in going to Colonel Thomas, Colonel Gordon spoke to me, and likewise desired me to go directly to Colonel Thomas.

What did he say to you? - I do not exactly remember the words, I believe he desired me to go to the poor man, meaning Colonel Thomas; upon my coming up to Colonel Thomas, I found he was wounded in the body, he was laying on the ground, I found a wound on the right side, the fleshy part, between the hip and the small ribs; on examining, I found something directly on the opposite side, which I concluded was the ball; I extracted the ball, and then assisted in removing him to his own house; I walked with him the whole way, where I did every thing that appeared to me to be proper; I called in Mr. Hunter; I attended him three or four times that day, and I sat up with him all night, and remained with him till he died.

What in your judgment was the cause of his death? - To the best of my judgment he died in consequence of the wound.

CAPTAIN HILL sworn.

Examined by Mr. Graham.

You was well acquainted with the deceased, Colonel Thomas? - I was.

I believe you had the unfortunate task imposed upon you, of attending him on this occasion? - It was pretty near five in the morning of the 4th of September when I called on him.

Do you remember either on the morning, or any part of the day preceding, whether you saw any letter in the hands of Mr. Thomas, with the signature of the prisoner at the bar? - Yes, Sir, I certainly did.

Did you read the letter? - I did.

Look at that letter and see if it is the same letter? - To the best of my knowledge and belief it is.

This letter was in the hands of Colonel Thomas? - Yes, I saw it on Wednesday, I went out on Thursday morning.

Mr. Baron Eyre < no role > . What time of the day? - It was rather late in the evening.

Mr. Baron Eyre < no role > . Mr. Hill should be apprized, that going out with Colonel Thomas, after such a communication, is a circumstance, which, if proved upon Mr. Hill, might be extremely penal to him, for you seem to have forgot, that seconds are deeply involved in the fate of their principals, in this sort of unhappy business; after having said that you may take your own course and go on.

Mr. Mansfield. Your Lordship sees there is no proof that this is the letter, he only says to the best of his knowledge and belief.

Mr. Baron Eyre < no role > . I hold that the slightest circumstance imaginable, that tends to fix the possession of this letter in the hands of Colonel Thomas is sufficient.

(The letter read, dated September 3d, 1783, as in the opening.)

Captain Hill. Am I to answer questions that tend to criminate myself?

Mr. Graham. Did you see any gentleman fire a pistol, by which Colonel Thomas fell? - (No answer.)

As you do not answer I must call Hobbs again.

Mr. Graham to Hobbs. Do you remember when your master was brought home wounded? - Yes.

Between that time and his death, what happened the next morning; do you remember his saying to you by whose hand he received the wound? - He never mentioned any name, only that villain! that villain!

I understood you to say, that you could from the garret of your master's house see most of the persons who were in the field together? - I could.

Could you see Colonel Gordon? - I could not; Colonel Thomas was in his regimentals, I saw my master fall, and I saw him brought home.

Mr. Graham to Captain Hill. I have only asked you at present where you was on the night of the 3d of September, and the morning of the 4th; I now only repeat the question I last asked you, which is, whether you saw the hand by which this pistol was fired, which gave this death wound to Colonel Thomas? and I am not aware that an answer to that question will criminate you.

Captain Hill. I cannot conceive that I am obliged to answer any thing that is to injure myself; I have no objection to answer any questions but those that would criminate myself.

Mr. Baron Eyre < no role > . That answer will not necessarily criminate you to be sure; because you might be perfectly unconnected with the transaction, and yet you might have seen from whose hand the shot was given; but otherwise as a second in this unhappy business, it may then tend to fix that charge on you.

Mr. J. Gould to Mr. Graham. You stated that he went out as a second to Colonel Thomas.

JOHN HUNTER < no role > sworn.

Examined by Mr. Graham.

I think you was called in upon this unhappy occasion? - I was, I do not remember the day, I was called in by Mr. Grant.

What time? - It was in the morning.

Was Colonel Thomas at that time in his own house? - In his own house.

Had you any conversation with him on the subject of this wound? - No farther conversation than respecting my profession; I was informed by Mr. Grant of the circumstances concerning him, therefore I proceeded to examine him as a surgeon; as far as we could examine the wound, it was hardly possible to judge what mischief was done, only from the symptoms, which seemed rather alarming, and the direction of the wound in general; I attended him near his death.

Have you any doubt what was the occasion of his death? - None.

JAMES ROBINSON < no role > sworn.

Examined by Mr. Reeves.

I am a surgeon; I attended Colonel Thomas on his wound.

Had you any conversation on the occasion of that wound? - No, only relating to the wound.

Did he speak of the cause of it? - No.

Mr. Justice Gould. Every body must concur with my brother Eyre in what he has thrown out in respect to the situation of seconds.

Mr. Baron Eyre < no role > . Mr. Gordon, Sir, the evidence on the part of the prosecution being now finished, this is the time you are to be called upon to enter into your defence; in making that defence, you can have the assistance of your Council only to the extent of examining and cross examining witnesses, and in making such observations as may arise in point of law out of the facts that appear on the case; if there are any observations that occur to you to be made on the evidence, or if there is any relation to matters of fact that cannot be done by Council, you will judge for yourself, therefore, whether you will offer any thing to the Jury in that shape, or whether you will leave your case upon the examination of witnesses by your Council.

Colonel Gordon. I humbly submit my case to the good sense, candour, and humanity, of this respectable Jury,

WITNESSES for COLONEL GORDON.

Sir HENRY CLINTON < no role > , Knight of the Bath, sworn.

Examined by Mr. Mansfield.

I believe, Sir, you know the prisoner, Colonel Gordon? - Yes, Sir, I have known him a many years.

I would only ask you, Sir, whether he has been, since you have known him, of a peaceable, quiet disposition, and not likely to engage in such an affair as we have heard of? - Perfectly so.

GENERAL PATERSON sworn.

Have you been long acquainted with Colonel Gordon, Sir? - I have had the pleasure of knowing him many years.

During the time you have known him, has he been of a peaceable, orderly disposition, and not likely to engage in such affairs as these? - I have long been in habits of intimacy and friendship with Colonel Gordon, particularly in North America, and I never saw the least appearance that indicated his being of a quarrelsome or disputable turn of temper.

The Right Honourable Lord DUNMORE sworn.

Examined by Mr. Silvester.

My Lord, I believe you have known Colonel Gordon for many years? - I have known him for above thirty years.

During that time has he been of a quiet, peaceable disposition? - I was in the same regiment with him, and in the same mess in that regiment; I never knew him otherwise than a perfectly peaceable, quiet, good humoured man.

ADMIRAL ARBUTHNOT sworn.

Mr. Silvester. How long have you known Colonel Gordon, Sir? - I have been intimate with him for a great many years; I have known him in many circumstances that were trying, and I have always known him to be a peaceable; decent man, never in the least engaged in any quarrel, or likely to be so.

COLONEL MARCH sworn.

I have known Colonel Gordon < no role > a great many years.

How many? - Twenty-five years, I have been in habits of friendship with him, and I always esteemed him a quiet, polite, well-bred man.

COLONEL DUNDASS sworn.

I have known Colonel Gordon < no role > a great many years, he is a man of extraordinary character, and amiable disposition.

COLONEL FOX sworn.

I have known Colonel Gordon, ever since the year, 1778, I have been a great deal in his company, for three years in America, and always esteemed him a peaceable good humoured man.

COLONEL JAMES STEWART < no role > sworn.

Examined by Mr. Fielding.

Have you known Colonel Gordon long, Colonel Stewart? - I have known him these eighteen years.

Is he of a peaceable, quiet disposition? - Remarkably so.

COLONEL WATSON sworn.

Have you known Colonel Gordon long? - I have known him many years.

Is his disposition peaceable? - Very remarkably so, if any dissention was likely to take place among the officers, which I have known in some instances, he always interposed with his good offices to prevent it.

Was that his general character? - Yes.

COLONEL ROBINSON sworn.

Examined by Mr. Garrow.

How long have you known Colonel Gordon, Sir? - I have known him ever since he came to America.

Have you accounted him to be of a peaceable, and good disposition, not likely to engage in quarrels? - Very much so, very unlikely to engage in quarrels.

GENERAL BIRCH sworn.

Mr. Garrow. Pray, Sir, how long have you known Colonel Gordon? - Above twenty years.

Was he in your estimation, a peaceable friendly man? - I never found any person more peaceable and amicable.

- DEROLLS Esq; sworn.

How long have you known Colonel Gordon, Sir? - Sir, I have known him these thirty years, I had the honour of being acquainted with him, when I had the honour of being employed by his late Majesty, at Brussels.

What was his character? - He was a young gentleman at that time at the academy, and he was very much connected in the most respectable families, and if he had not been a remarkable well behaved young gentleman, he would not have been admitted amongst them; he was the most peaceable, good humoured gentleman that ever was.

And so esteemed by every body that knew him? - Yes.

Mr. UDNEY sworn.

How long have you known Colonel Gordon? - Upwards of thirty years, I have always known him to be a humane good natured man, I never heard of any quarrel that he had.

Mr. FRAZER sworn.

How long have you known him, Sir? - I have known him for a many years.

Did you know him to be a peaceable, amicable man? - As good a natured man, as any living.

COLONEL SETON sworn.

How long have you known Colonel Gordon, Sir? - I have known him upwards of thirty years.

Has he had the reputation of a peaceable, good natured, well disposed man? - Exceedingly so, the whole time, remarkably so for thirty-five years.

CAPTAIN HERON sworn.

Mr. Fielding. How long have you known Colonel Gordon? - I have known him, during the course of the American war.

You have had an opportunity of observing him, Sir? - Yes, I have always heard his character spoke of, as the most harmless man alive.

Mr. SETON sworn.

How long have you known Colonel Gordon? - I have lived in intimacy with him fifteen years.

What character does he deserve from you? - He is the last man in the world likely to be troublesome, quarrelsome, or any thing but what was pleasant and agreeable.

Mr. DINGWELL sworn.

Mr. Silvester. How long have you known Colonel Gordon? - I have known him ever since he was a child.

What has been his general character? - He always was a good natured quiet man.

Mr. RACKET sworn.

How long have you known Colonel Gordon? - I have known him thirty years.

What character has he born? - A humane, good natured, gentlemanlike man, for the whole time I have known him.

Mr. Mansfield. I have a great many more witnesses if you think proper Gentlemen, but I would not wish to trouble you.

Jury. We are perfectly satisfied with the character of Colonel Gordon.

Mr. Baron Eyre < no role > . Gentlemen of the Jury, the Honourable Cosmo Gordon < no role > , is indicted for the wilful murder of Colonel Thomas, and in order to substantiate this charge against this Gentleman, Thomas Hobbs < no role > is called, &c. (Here the learned Judge summed up the evidence, and then added) Thus stands the case, the Counsel for the prisoner have called a number of respectable personages, of his having through life sustained the character of a humane, quiet gentlemanlike man (recites them) most certainly a better character, for all the purposes of domestic peace and tranquility, and for the very purpose of this enquiry too, could not have been laid before you, and so far as it can have weight and application to a subject, circumstanced as this is undoubtedly you will let it have its full effect: Gentlemen, it is your misfortune and mine, to be called upon by our duty to enter into this enquiry, upon a very critical and unfortunate case, we are however, in the course of a duty that is imposed upon us, and we must discharge that duty: your first enquiry will therefore be, whether there is sufficient evidence to satisfy you, that Colonel Thomas fell by the hands of Colonel Gordon; you will not want to have the evidence repeated to you, you will judge of that fact from the evidence you have heard, and I have no desire to anticipate your judgment, or in a case situated like this, to point to any leading c ircumstance, or even to throw out any observation at all: judge for yourselves upon the subject; having determined that question, if you do not find that Colonel Thomas fell by the hands of Colonel Gordon, of course he is intitled to your acquittal; but if you do find he fell by his hands, then you will be to enquire, whether any degree of criminality is imputable to Colonel Gordon for that fact; and for this purpose, it will be necessary for me to state to you, what the law is upon the possible state of the fact, which you may find upon the evidence, and this fact being established, as I am supposing now, with a view to the subsequent enquiry, that Colonel Gordon was in the unfortunate situation of having it fixed on him, that Colonel Thomas fell by his hand, he is called upon to justify himself, if he is able, and if he cannot, to extenuate it; if he cannot do either, then the charge remains fixed against him, that he is guilty of murder. With respect to the justification, that can only be on supposition, that Colonel Gordon was driven to the absolute necessity of firing this pistol on Colonel Thomas, in defence of his own life, after he had used all possible methods to avoid having recourse to that desperate expedient, and after he was so attacked by the deceased, as to make that expedient absolutely necessary; whether there is any ground upon the fact before you, to find the defendant justified, will be for you to judge, if there is, upon that ground the defendant also may be acquitted, as having no blame imputable to him, though his hand was the hand by which Colonel Thomas fell: If that is not the fact, the next consideration is, whether there is any thing in the case itself, which will extenuate the guilt of the action imputed to Colonel Gordon; you are familiar Gentlemen, with the distinction between murder and manslaughter; manslaughter being homicide, committed under circumstances to which the law has extended an indulgence, by lessening the malignity of the crime, and reducing it from an offence punishable with death, to one where what is called the benefit of clergy is allowed, and where consequently a much milder punishment is inflicted; now, whether this crime can be extenuated in that manner, will depend on this distinction of Law; if the parties met together upon a sudden quarrel, and proceeded to those extremities upon the impulse of that quarrel, when the blood was heated, and before there was a reasonable time for it to cool, and for reason to assume its power, and its controul over the minds of the parties; the law has that indulgence for the infirmities of human nature, that it will not impute malice, and that degree of malevolence, to be the cause of the death of a man in those moments, which it does, and will impute, where it was a cool and deliberate act; you will judge, whether this case can be so extenuated, if it can, you will say that the prisoner is not guilty of murder, but of manslaughter; if neither of these should turn out to be the case before you, I am extremely sorry to add, that I know no rule of law, which can be applied to this case, which will extenuate it; I am very sorry to add it, because I feel what every man who hears me must feel, that the strict and rigid rules of law, applied to the subject of deliberate duelling, is in direct opposition to the feelings of mankind, and the prevailing manners of the present time: be the rule of law what it may, in defiance of that rule, men do find it justifiable, commendable, and necessary, to risk what is called in one of these letters,

"The decision of their differences," before a tribunal which they erect for themselves; and I am affraid, that unless it shall fortunately for this country, be taken up by those who can give a direction to the manners of the people into another channel, and some other method found of deciding differences, I doubt these unfortunate subjects will sometimes come before you; I know not what to say, it must be our consolation to do our duty, according to our apprehensions of it, by the best informations we can get; I am bound by the oath I have taken, to state to you the law of the land; having done that, I have done the whole of my province; you are to find out the fact of the case, and then to apply that fact to the law, as you understand it; of that law and fact, your verdict is to be compounded, and you will now execute your duty to the best of your judgment, and to the satisfying of your own consciences.

The Jury deliberated for ten minutes, and then gave their verdict.

NOT GUILTY .

Not Guilty on the Coroner's inquisition.

Colonel Gordon then said. My Lord and Gentlemen of the Jury, I beg permission to return you my most sincere thanks.

Tried by the first Middlesex Jury before Mr. BARON EYRE < no role > .