The National Register. — London, England, 1818-02-09 00:00:00

.(' 4~R. n Iv indarca the inference that a,e wag throv n into the 1 1 . ,t ; the bleeding budy appL!.:rea.„ ha•rc in the arm: of sy.no person along .t,„ I►ath, , 1 1 111001 had trickled upon some clover by A te :.isle et• tint path ; the dew had not been brushed away i v an y tl►ing but the blood. Mr. Janice Bayley seemed to think, that the allega tion respecting the dew not having been brushed away tea; not laid with sufficient particularity. Mr. Chitty cited 1 Leach, C. in order to prove, that in a counterplea the sante precision and technicality were not required as in an in indictment. Ile then detailed other prominent circumstances stated i t , t h u counterplea, mentioning particularly the foot mark near the edge of the pit. Mr..lisstioe Baylcy.—The impre!lsion of the fna at the side of the pit is not, in the counterplea, said to be a recent impression : only that it was that of a man's left tint and not that it at all corresponded with the le't foot of Thornton._ _ _ _ _ . Mr. Chitty observe:l, that it was Itssertel in the coml. terplea that l'hornton won: shoes fitted to his right and 1,21 i figit. Mr. Justice Abbott.—But you do not add that it was compared, or that from circumstances, coinpari.ain was impossible Mr. Chitty replied, that the appellant could only state that which he was in condition to verify ; the counterplea was aecompanied by an affidavit, and if it contained any thing untrue, the appellant was no doubt liable to be prosecuted fin- perjury. llc submitted, that all the circumstances offered a strong presumption of guilt, and it was not necessary- to state authorities as to what arc causes of suspicion. The coarse declaration of the appellee, and his subsequent admission, that he had an illicit intercourse with Mary Ashford, were strong indications of guilt. If it were urged on the other side that the authorities in the books in which trial by battle had been refused were case's of taking 'with the newer, he answered, that he only put them as instances, for the general rule was, that whenever there is strong evidence or presumption of guilt, the epies:ioa most be tried by a jury. The Counsel for the appellant were not hound to make out a case of de monstration, but of probability. It now baeame hi s duty to show, that the replication of the appellee is in sufficient : no case could now be finand where an ap pellee had been allowed to reply fresh facts by way of csonter presumption of innocence ; the replication ad mitted all the presumptions of guilt contained in the r einterplea, insisting, however, that the presumptions of innocence were the stronger ; and the whole, in fact, rreacd upon an otibi : by that the appelle was to be dis rharged from all suspicion. It had, however, been set tled, that an alibi, if true, could only be brought for scard as a matter of defence : the eonnterplea afforded a prima facie case of suspicion, and if so, the truth must necessarily be tried by a jury. Lord Ellenborough.-- Do you contend that establish jag a ease of suspicion is sufficient to oust battle ? if so, you retire from the high ground you took in the commencement—that the presumption must be so strong is to preclude all proof of time countrary. Mr Chitty said that the instances from Bracton were those where immediate execution followed on the hare fact; he submitted that strong pregnant suspicion or presumption of guilt were sufficient The appellee had set forth his acquittal ; but star. 3 Hen. VII. c. I. provided that the rights of the appellant should, not withstanding, be preserved entire, tar the prosecution by the King w•-,s res inter alias (lola. There might be netny reasons for the exception of the rights of the eppellant ; the prosecution might be premature, or the "rimer might be acquitted by connivance; and in such a case the appeal was most important. With regard to this part of the Case, he quoted Castle v, Bainbridge (2 Str. 853) Rex v. Chetwynde (2 Str. ; Wilson Y. Kennet* (1 Wils. 132) ; Bull. N. P. 245, Pia livid. 260, in order to show that an acquittal was not in many cases a proof of innocence. Admitting, however, for argument that the appellee was at liberty to reply fresh facts, still be insisted that these filets dill not at all satisthetorily establish alibi ; in the first place, when he mentioned partieular times, it was generally accompanied by the word about. The Court observed, that the appellant bad done the same ; but Mr Chitty answered that to the appellee, precis:on, even as to minutes; was of the utmost im portanee for his alibi ; and it was singular, that from beginning to cud there was no positive averment that he was not there at the time of the murder, and could not have been there ; all was left to inference merely. The appellee had not ventured to aver that the illicit intercourse took place before Ma. y Ashford went to Mary Butler's. Mr Justice Bayley.—He is only to aver what he can prove, and how is he to prove that at which only two persons arc present, one of whom is dead, and . the other 'innself, not being a competent witne,s? appeb,a! put it as a presumption that the intercouse must have taken place before Mary Ashford went to Mrs. 13 tier s. Mr. oustiee Abbott.—Your point is, that the inter muse t ok place before she went to Mary Buller's; and yet you do not aver it any more than he does the contrary. Tim NA.,,TioN:k.i. 1 Mr. Justice l'irslry.—Nor do you aver that the de fendent was the person that had the ihicit interconree will h. r: only that ;ann.,-person had had it. M (Ishtord leaves Mary Butler's at about quarter past 11 .• : and within a quarter of an hour after‘vards she i s;ee" , . i.est by one and then by another, near Bell lane. NIL Chitty.—\ that would allow Min fifteen mi nutes. • Mr. Justice Bayleye e ,.Th e n he has to go from Bell lane across the herrowol tield, and tle re pursue her, and carry her to the place where the criminal inter course took place ; then to convey her to the pit, to throw her in, and then to run on close to John Holden's, which, necording to the nearest way, is a mile and seven furlongs, within less than halt' an honr: at this time, tot. it is open day, and many people will be about to see hi:n. The great doubt I have had is, whether the footsteps near the pit were made before 4. o'cloek or idler: the prohabillity seems to be, that they should have walked together towards the pit ; but whether it was befiire 4 or after is the question. Mr. Chitty repeated, that there was no positive aver meat of the appellee that hr was not there, and, for aught that appeared, he might have had a horse. It was laid down in all books, that evident.* of an ofThi was to be received with extreme caution ; and there was nothing to show what had beeume of Thornton between half past five and seven o'clock at which last hour the body was found recently dead. Mr. Justice Bayley.—She is teen near the pit at half past 4, and he is seen at 10 , ininutes before .5, going in a contrary direction Mr. Chitty urged that their Lordships were not now trying the cause whether the defendant were or were nut really guilty, but merely a , certaining whether there was suffleicat presumption against him to defeat the trial by battle: whether eerugh was not stated in the counterplea to induce their Lordships to resort to the original constitutional mode of trial, instead of follow ing a practice which all mutt deplore had over been pursued. If the appellee were innocent, he would. go down to his trial in the country with all the advanta ges of his innocence ; if to alibi existed, he might prove it, and no doubt all prejudice, if it existed any where, would be banished from a Court of Justice ; the pro bability scented rather to be, that a Jury on their oaths in a case of life and death, would be disposed to think favourable of an individual placed in the situation of the appellee. On all these grounds he submitted that the replication to the counterplea was insufficient, and that the appellee ought not to be permitted to wage battle with the appellant, but must submit to the con. stitutional trial by the country. Lord Ellenborough and the other Judges consulted for some minutes, after which his Lordship said, the Court think it may be expedient that this argument should proceed to-morrow ; he will then hear Mr. Tin dal on the other side. Mr. Clarke asked if it would be the first called on ; and Lord Ellenborough answered in the affirmative. The defendant then retired from the bar, and was followed through the hall by a considerable arowd, who, by hisses and groans, expressed their feelings on the occasion. S kTURDAY. The arguments in this ease wer2, resumed on the ar rival of Mr. Justice Holroyd, The appellor and appellee took their usual stations. Mr Tindal stated, that on the part of the defendant he Mt it his duty to say, that upon the face of the re cord their Lordships were called upon to give judgment. He deprecated the mode that had been resorted to by his Learned Friend Mr. Chitty, in drawing the law as applying to this particular case from foreign authorities of our oldest banks, and, with reference to these, he contended that the trial by battle was the undoubted right of the defendant. and nut the plaintiff; and also that that the counterplea did not set feirth any of the exceptions which the law allowed; that it was quite vague and uncertain ; and if it was answered at all' the replication was a complete answer to it. The Learned Coum1:1 went on to shew that the law and right of waging battle originated with the Normans, and that there was no allusion to the trial by,battle in the Saxon laws. In stwort of his position the Learned Gentleman cited a variety of authorities from the reign of William the Conqueror downwards, and commented with great ability thereon. We left the Court sitting. In the Court of King's Bonch yesterday, previous to the further arglonent in the appeal case, Lord Sid mouth presented hiwelf to exhibit articles of the peace, against Arthur Thist'mood, one of the persons indicted with Watson for high treason. This -luau, it appeared, had written a letter to his Lordship conveying a chal lenge to ti ; 4ln. The articles having liven read and filed the tipstatfs of the Court were dsspatched to apprehend the defendant. The amount of the Russian experts of corn last year, was 123 millions of rubies, about twenty-live millions sterling , . Sir Gregor •I•Gregor arrived at Liverpool on Mon day, in the William Lwart, front Y sau, nr.v Provi dence, THE DRA.11.4. (:OVENT-C.1111)1:N. After the Opera of .Maxer.rcx. uu Tiwillar night, a new Melo-Drama, under the title of Tilelasiriout Tiauelter ; or, The V:rges of Kanell, was produced. The scene is laid in Norway; and the story is simple, but interesting. The scenery is new, and some of is very beautiful, es: , oeially a view in the mountainoms pert of Norway; u view of the interior of the Forg.! , ; a defy of the Sea by Moon-lig:it, with a Light-hourt., &e. The pitee thronghout was received with loud ai plause, and was announced for repetition witlaiut a single dissentient voice. A new tragedy, entitled Fazia, written b. li. Milman, B.A. Fellow of Braze:muse College, Osthi.l, was produced at the above theatre on ThursiLy The plot is simple. Fazio (C. Kemble), unhappy la his poverty, and in the vain pursuits of alchymy, by the love of gold, tempted to incur the suspicion of murder, by robbing a murdered miser. to tl,e highest athaence by Ins ill-gotten wealth, he is sedmid . t.uat the arms of his doming wife, Bianco (Mk: O'Neill), to those of a beautiful, proud, and tiLltd courtesan. Stung by the desertion of her hush:oil, hoaxes, in the blindness of her passion, resolves tear him from the seducer, by denouncing him to the Senate, as the murderer of the miser. The dreadt . .il consequence of this act is the death of Fariu by the hands of the executioner. Bianca, driven frantic by the deadly and unexpected catastrophe which fhllowel the ungovernable impulse of her jealousy, dies of a broken heart. Mis 0•Neill, as Bianca, exceeded all her former perthrmanc,..s. The success of the Tragedy was most complete—it was announced fur repetition on. Monday next, amidst shouts of applause. It is remark able that Fazio has been published these tut) years, aid has not been offered to any Theatre by the author. Mr of the Surrey Theatre, has the honour of hay ing first discovered the fitness of the story for Dramatic cited, and last season produced it under the title of the Italian Wife." The Bath Theatre next adopted it, and its success has been such as to materially benefit the House. DRURY-LANE. A Tragic piece, called the Bride 0 Abydos (taken from Lord Byron's Poem of the same title, and arranged for the stage by Mr.Dimond,) was performed for the first time Thursday night—The play differs hi sonic respects from the Poem, it does more poetic justice, but it is art so interesting. The scenery and decorations are very splendid, the acting throughout very effective. Kean's was the chief character —The piece was received with the highest applause.—The Duke and Duchess of Glou cestet were present. ON THE PRESENT STATE OF ROME. We have been solicitous to learn from our friends who :Ave lan[ by travelled to :tome, in what state the city appears at this time respect ing its original grandeur in buildings, culonule , pmticoes and arches —and we rind diet ilia representattens search we have in prints. i.e. very ill calculated to dim! m a eery clear idea of the real appear:air., Much those massy records of antiquity now present to the eye—f they are made from drawings of crusts and ingenious men, wdo, de sirous of representing the whole in as complete a state as possible,. assisted by their genius and alto by their labour, the pa se- rotund by earth a 1..: many reel buried under ground, and capitals made out ham cue ur two that remain pertiva„ and porticoes. catching as it were, their only support from the angles of flights of steps which the stwleot rather stir:ties at a secure distance. Fallen columns hate bee.) not only disfigured. but purposely mutilated by the builders of email lianitatioas, stables, and warehouses, who sought Mr mate rials near at hand, and at as cheap a rate as posAble—these are freely affixed to the remnants of some high calanrade wi en en a Brutus or a Gesur trod—these stem to have exercised the mind tic in, darn men, of either letters or opulence, no primacy desire to preserve any of these evidences of ancient antrafs in the same state a , their on • ginal compilers relate them ; ranr minds have rather acted in unison with the moulderng sleur.,,t, of fact, by yieldihg to the triumpn of acrestime, the acres of Titus—toe palace of Adrian—the tbrum—atal de: temple--athke declare Low little their modern possessors have regard ed their beauty or th. i: value, and whatev.r may be the vanity of their po,eb-urn iii the admiration of their celebrated grandeur, they cart have been actuated by very little zeal Mr the arts and for the siniplicity of Roman architecture, whale the best of these renia:tis are disfigured by modern abutments and adjuncts of the meanest dwell im,n, arid materials, and by die careless neglect of unobserved elecev. aferli of tie mutilations has been occasioned by the rapacity or avarice of traveller.: to Cll.lOl their own coll-ctions or those of tits great of other nations; but tiles,: are for the mo.t part limited to busts or statues—which is Lot -.he subject of our present remarks— they are, though of infinite vahre, yet minor to the magnificence of extensive buildings in a city. At Rome we find their htokes, pules • tads which shew only th e place where these ennuent proofs ofspleodirl genius ones adorned the capital. It is the shameful perversion of great buildings theimelves, of which we cannot help complaining— we would reuedly admit of alterations in their interior to retuter Lb. :71 C0111111C110:11 for habitations in these times, but their extern,. should have been sialuously pi ese mai in all their ancient glary. gning like their prototypes at Ath.ms the law aim:Mier:are to all posterity.— " States once distinguished for military prnwess„sonietrities lay doe a their arms front lasisitade, and are weary of trunkss coatentions"— the tame k is applicable to these once enalient as Anicita and Rome, for sculpture and architecture, which in the modern lds:atiale and luxury, shrink Dom the exertton of repairing and preservin4 what ilecaya around them. and who:: beauty fa.mhar to their daily view, sites .st last into entire dissolution. Sir Jamet. Mackintosh, M;'. latc RePorder of Flom bay, has t,„, 1 a ppointed Professor cf Law in the East India Col!c: , •e, Hefts, on the re.l.r.atitn of L. Christian, EMI From an official account printed by order of the !louse of Commons, it appears, there are at preseat confined in the of New4atc, under sentence of death. 51 men and 10 women. Their crimes arc cithalt robberies or fcrgeries, 3 at no murder. 141%