Two hundred years ago, in the first weeks of the Regency, John Hepburn and Thomas White were executed in London.
Hepburn, in his forties, was an army officer; White, just 16 years of age, a drummer in the Guards. They had been arrested after the police raid on the White Swan public house in Vere Street, tried and found guilty of buggery. The Prince Regent declined to grant them pardon and on the 7th of March 1811 the two men were hanged in public before a large crowd of spectators. One of the Regent’s brothers, the duke of Cumberland, was there along with lord Sefton, lord Yarmouth (son of the Regent’s married mistress, lady Hertford) and ‘several other Noblemen’. Lord Courtenay was not in their company: William by that time was safely far away from England.
Later in the same month, at the court of assize in Exeter Castle, the Grand Jury of the county of Devon indicted a pair of local men for committing a felony at Powderham in December 1808: ‘that detestable and abominable crime (not to be named among Christians) called Buggery’. On the 16th of March the sheriff of the county was commanded to:
‘take the said William Viscount Courtenay and William Fryer if they shall be found in his Bailiwick and them safely keep so that he may have their bodies before the Justices of our said Lord the King assigned to hold the next assizes’.
The judge sir Alan Chambre, sheriff Arthur Champernowne and members of the Grand Jury all knew that William Courtenay, even if arrested, could not be tried by a jury of commoners at a court of assize. As viscount Courtenay, he was a member of the peerage of Great Britain and, until 1948, British peers charged with a felony were tried by their peers in the House of Lords at Westminster. Such trials did not happen often: there had been only two since 1760 when earl Ferrers, found guilty of murder, was hanged.
Felonies were divided into two classes. Some, such as bigamy and manslaughter, were ‘clergyable’. A peer found guilty of such a crime would pay a fee and escape any further punishment. This happened in 1765 with baron Byron of Rochdale and again in 1776 with the duchess of Kingston.
Other felonies such as treason, rape and murder were ‘not clergyable’. For these the sentence was invariably death, although a peer found guilty might later be pardoned: after the Jacobite uprising of 1745, king George II pardoned one of the four Scottish lords found guilty of treason. Buggery was another felony ‘not clergyable’.
In 1811 the House of Lords intervened before the summer session of the Devon assizes. At parliament in Westminster on Thursday the 13th of June Jacob Pleydell-Bouverie, earl of Radnor, said that he proposed to ‘move for the copy of an indictment against a Noble lord who had absconded’. Lord Ellenborough, the Lord Chief Justice, observed that ‘much difficulty would obtain in respect to his Lordship’s motion, for want of a precedent’.
The difficulty had been overcome by the following Tuesday when the Lords ordered that the ‘Bill of Indictment, found by the Grand Jury of the County of Devon, at the last Assizes, against William Viscount Courtenay, for a Felony not clergyable, be removed before this House, and that a Writ of Certiorari be issued under the Great Seal for that Purpose’.
John Follett, the Clerk of the Assizes of the Western Circuit, duly delivered the bill of indictment ‘with all Things touching the same’ and on Friday the 12th of July 1811 ‘the same was read’:
‘The Jurors for our Lord the King upon their Oath present that The Right honourable William Lord Viscount Courtenay late of the Parish of Powderham in the County of Devon not having the fear of God before his eyes but being moved and seduced by the instigation of the Devil on the twelfth day of December in the forty ninth year of the reign of our Sovereign Lord George the third by the Grace of God of the United Kingdom of Great Britain and Ireland King Defender of the Faith with force and arms at the parish aforesaid in the County aforesaid in and upon one William Fryer then and there being feloniously did make an assault and then and there feloniously wickedly Diabolically and against the Order of nature had a venereal affair with the said William Fryer and then and there feloniously did carnally know him the said William Fryer and then and there feloniously wickedly diabolically and against the order of nature with the said William Fryer did commit and perpetrate that detestable and abominable crime (not to be named among Christians) called Buggery Against the form of the Statute in such case made and provided and against the Peace of our said Lord the King his Crown and Dignity’
Just as John Hepburn had been charged with ‘consenting & permitting’ Thomas White to commit the crime of buggery with him, so William Fryer was charged with consenting to an ‘assault’ by William Courtenay. That is, in both cases the two men had been having consensual sex with each other.
The bill of indictment continues with the charge against William Fryer:
‘And the Jurors aforesaid upon their Oath aforesaid do further present that the said William Fryer late of the Parish aforesaid in the County aforesaid labourer at the time of the committing of the felony aforesaid by the aforesaid Right honourable William Lord Viscount Courtenay in form aforesaid then and there feloniously was consenting with the aforesaid Right honourable William Lord Viscount Courtenay that he the said Right honourable William Viscount Courtenay the detestable and Sodomitical Crime aforesaid with him the said William Fryer then and there in form aforesaid should commit and perpetrate Against the form of the Statute in such case made and provided and against the Peace of our said Lord the King his Crown and Dignity.’
The bill was read to the House of Lords in the midst of debates on lord Stanhope’s Bank Notes Bill, and there the legal process paused. William Courtenay was not tried for buggery, either in 1811 or later.
It would be good to know what became of William Fryer. A man of that name was charged in March 1815 at Winchester assizes with ‘unnatural crimes’ and the theft of rum. The 1861 census records a William Fryer in St Marylebone, a widower aged 72 and born in Kenton, a parish neighbouring Powderham, who would have been aged 19 in 1808.
William Courtenay had crossed the Atlantic before the March assizes to take refuge in America, far beyond the reach of English justice. In its edition for September 1811, the European Magazine reported:
‘Lord Courtenay has taken some ground about six miles from New York, on which he is erecting a splendid mansion. He has launched a grand carriage with a suitable equipage, but sees no company.’
The 1811 bill of indictment with the writ of certiorari is held in the UK’s Parliamentary Archives: record HL/PO/1/52/2.
The Grand Jury at Exeter Castle in March included five baronets and two members of the House of Commons as well as 16 other gentlemen – all ‘good and lawful Men of the said County of Devon’. The writ lists the jurors in this order:
- Sir William Pole Baronet
- Sir Stafford Henry Northcote Baronet
- Sir Thomas Dyke Acland Baronet
- Sir John Lemon Rogers Baronet
- Sir John Kennaway Baronet
- Arthur Howe Holdsworth Esquire
- Albany Saville Esquire
- John Burridge Cholwich Esquire
- Raymundo Putt Esquire
- Samuel Kekewich Esquire
- John Bulteel Esquire
- Ayshford Wise Esquire
- James Coleridge Esquire
- John Brickdale Esquire
- Samuel Frederick Milford Esquire
- Richard Pine Coffin Esquire
- Baldwin Fulford Esquire
- Paul Treby Treby Esquire
- Pierce Joseph Taylor Esquire
- Richard Hall Clarke Esquire
- William Tucker Esquire
- George Warwick Bampfylde Esquire
- John Morth Woolcombe Esquire
At the time of the assizes Arthur Howe Holdsworth and Albany Saville were members of parliament for Devon boroughs: Holdsworth for Dartmouth, Saville for Okehampton.
George Cruikshank: Merry Making on the Regents Birthday 1812.
The regent is dancing with his current mistress, lady Hertford, and trampling on a petition for mercy which he has already rejected. Joseph Thompson, the condemned man, was hanged for forgery, leaving a wife and three children who are lamenting at the foot of the gallows. On the left the Lord Chamberlain (lady Hertford’s husband) is saying ‘Curse these French horns‘ while reviewing the Order of the day which begins with ‘Breakfast | 2 to be HUNG at Newgate‘. The other person to be hanged that morning was Catherine Foster, condemned to death for making false oath. On the right, the words from the man with children read: ‘If Rich Rogues like poor ones were for to Hang it would thin the land such numbers would Swing upon Tyburn Tree.’
Edward Finden: engraving after an original drawing of Powderham Park taken by Clarkson Stanfield for Stanfield’s Coast Scenery, 1836.