The National Register. — London, England, 1818-02-08 00:00:00

8 a FEB. 4 L Or been vere Leon 1p6.- anco ; the hich tent. and t of oveg, Iroti sent tter. evi thia of imc, to of put. the . 2r to pre ()art bing huo gat ; for into orz4 lv induced the inference that she was thmwn into the pit ; .he bleeding body appeared to have I.)eli carrit4 in the arms of some person along the path, anal the blood had trickled upon some clover by the side of that p ►th ; the 'dcw had not been brushed away by any thing but the blood. Mr. Jultioe Bayley seemed to think, that the allega tion respecting tile dew not having been brushed away was not laid with sufficient particularity. Mr. Chitty cited I Leach, C. L. 405, in order to prove, that in a counterplea the same precision and technicality were not reqnircd as in an in indictment. lie then detailed other prominent circumstances stated in the counterplea, mentioning particularly the foot =ark near the edge of the pit. Mr. Justice Bayley.—The impression of the foot at the side of the pit is not, in the counterplca, said to he a recent impression : only that it was that of a man's left foot and not that it at all corresponded with the left foot of Thornton. Mr. Chitty obsirvel, that it w:v: assertel in the coon terplea that Thornton wore shoes futed to his right and left foot. Mr. Justice bbott.—But you do not add that it was compared, or that front circumstances, comparison was impossible Mr. Chitty replied, that the appellant could only state that which he was in condition to verify ; the counierplea was accompanied by an affidavit, and if it contained any thing untrue, the appellant was no doubt liable to be prosecuted fur perjury. 1-k submitted, that all the circumstances offered a strong presumption of guilt, and it was not necessary to state authorities as to what are causes of suspicion. The coarse declaration of the appellee, and his subsequent atlmis'ioa, 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 hal been refused were cases of taking with the mailer, he answered, that he only put them as instances, for the general rile was, that whenever there is outing evidence or presumption of guilt, the question must be tried by a jury. The Counsel for the appellant were not bound to make out a case of de- ministration, but of probability. It now fe-ame his duty to show, that the replication of the appellee is in sufficient: no case could now he found where an ap pellee had been allowed to reply fresh fact.; by way of .cnanter presumption of innocence ; the replication ad witted all the presumptions of guilt contained in the counterpka, insisting, however, that the presumptions of innocence were the - stronger; and the whole, in fact, r-ted upon an alibi: by that the appelle was to be dis charged from all su"picion. It had, however, been set tied, that an alibi, if true , could only be brought for warl as a matter of defence : the eaunterplea afforded a prima facie case of suspicion, tied if co, the truth must necessarily be tried by a jury. Lord Ellenflorough.— Do yotseentend that establish ing a case of suspicion is sufficient to oust battle ? if so, you retire front the high ground you took in the commencement—that the presumption must be so strong as to preclude all proof of the countrary. Mr Chitty said that the instances from Bracton were those where immediate execution followed on the bare fact; he submitted that strong pregnant suspicion or presumption of guilt were sufficient. The appellee had set forth his acquittal; but stat. 3 Hen. VII. c. I. provided that the rights of the appellant should, not withstanding, be preserved entire, for the prosecution by the King was res into alios ada. There might be many reasons for the exception of the rights of the appellant ; the prosecution might be premature, or the prEoner might be acquitted by connivance; and in such a ease 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. 1204) ; Wilson v. Rennet* (1 Wils: 13.2) ; N. P. 2.15, Phil. Evid. 260, ii 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 thets, still be insisted that those facts did not at all satistitctorily establish alibi ; in the first place, whcu he mentioned particular times, it was generally accompanied by the word about. The Court observed, that the appellant had done die same ; but Mr Chitty answered that to the appellee, precision, even as to minutes; was of the utlace4 lin portanee for his alibi ; and it was singular, that from beginning to end there was no positive averment that he was not there at the time of the murder, and could not have hcett there ; all was left to inference merely. The uppelke hail not ventured to averthat the illicit intercourse took place before Ma.y Ashford went to Mary Butler's. _ _ - ---; Mr. Justice Bagley.—He is only to aver what he ran prove, and how is he to prove that at which only .t►vo persons are present, one of whom is dead, and the other himself, not hciing a emnpetent witness? The appAlee put it as a presumption that the intereouse must have taken rlaee before Mary Ashford went to Mrs. Butler s. . . Mr, Justice Abb:ol.—Your point is, dint the inter course took place before she went to Mary Buller's; awt yet you do nut aver it any more than he does the contrary. I: THE NATIONAL ntGwrrn. r Mr. Justice Bayloy.---Nor do you aver that the de < endant was the person that had the illicit intercourse . with her : only that some person had had it. Mary Ashford leaves Mary Butlar's at about a quarter past four ; and within a quarter of an hour afterwards she is seen, first by one and then by another, near Bell- Lane. Mt. Chitty.—And that would allow him fifteen mi nutes. Mr. Justice Bayley.—Then he has to go from Bell lane across the ILT:tweed field, and there pursue her, and carry her to the place where t 1,3 criminal inter course took ; then to convey her to the pit, to throw her in, and then to run on close to John Holden s, which, according to the nearest way, is a mile anti seven furlongs, within less than half an honr: at this time, too, it is open day, and many people will be about to see him. The great doubt I have hail is, whether the fihnsteps near the pic were made hethre 4 o'clock or after: the probubillity seems to be, that they should have walked together towards the pit ; but whether it was before 4 or after is the questiim. Mr. Chitty repeated, that there was no pcsitivc aver ment of the appellee that he was scot there, and, for aught that appeared, he might have had a horse. It was laid down in all hooks, that evidence of an alibi was to be received with extreme caution ; and there was nothing to show what had become of Thornton between half past five and seven o'clock at which last hour the hotly was found recently dead. Mr. Justice Bayley.—She is seen near the pit at half past 4, and he is seen at 10 minutes 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 not really guilty, but merely ascertaining whether there was suificient presumption against him to defeat the trial by battle: whether enough was not stated in the ccemterplea to induce their .L.M 1 3 1 0 6 .. r s to resort to the original constitutional mode of trial, instead of follow ing a practice which all must deplore had ever beets 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 seemed 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 consult,cd for some minutes, after which his Lordship said, the Court think it may be expedient that this argument should proceed to-morrow ; will then hear Mr. Tin dal on the other side. Mr. Clarke asked if it would be the first called on ; and Lori Ellenborough answered in the affirmative. The defendant then retired from the lair, and was followed through the hall by a considerable crowd, who, by hisses and groans, expressed their feelings on the occasion. SATURDAY. .... The arguments in this case were resume Son fife ar rival of M. Justice Flolroyd, The appellor and appellee took their usual stations. Mr Tindal stated, that on the part of the defendant he felt it his duty to say, that upon the face of the re cord their Lordships were culled upon to give judgment. He deprecated the mode that had been resorted to by his Learned Friend Mr. Chitty, in drawing the law us applying to this peirticular case from foreigu authorities of our oldest books, and, with reference to these, he contendod that the trial by battle was the undoubted right•of the defendant, and not the plaintiff; and also that that the counterplea did not set tbrth 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 Lea' ned Counsel went on to show that the law and right of waging battle originated with the Normans, and that there was no allusion to the trial by i battle in the Saxon laws. In support of his position the Learned Gentleman cited a rariety ofituthorities from the reign of William the Conqueror downwards, and. commente with great ability thereon. We left the Court Kitting.. In the Court of King's Bench yesterday, previous to the further argument in the appeal case, Lord Sid mouth presented himself to exllib:t articles of the peace, against Arthur Thistlewood, one of the persons indicted with Watson fin. high treason. ThiS man, it appeared, had written a letter to his Lordship conveyine , a chal lenge to fight. The articles having Wen revel and tiled the tipstaffs of the Court were tlsspatclwd to apprehend the defendant. The amount of the Ilusnian exports of corn last year, was 113 inilltons4f rubles, about tweuty-five sterling. Sir Gregor \I 'Gregor arrived at Liverpool on Mon day, in the William Ewart, from Nassau, New Provi dence. 7 II L. DRAMA. COV ENT-GARDEN. After the Opera of Artaxerxes, on Tuesday night, a sew Melo-Drama, under the title of Tin. blusirious Tracciler ; or, The Forges of Kanzell, was prctiuced. The scene is laid in Norway ; and the story is simple, but interesting. The scenery is new, and some of it very beautiful, esp:•cialiy a view in the mountainous 'part of Norway ; a view of the interior of the IF,rgcs ; a view of the Sea by Moon-light, with u Light-ionise, &c. The piece throughout was received with loud ap plause, and wee announced fur repetition wit! out a ilisseutient voice. A new tragedy, entitled Fax;o, written•bv H. H. Manton, B.A. Fellow of Brasennose Collegi; Oxfbrd, was produced at the above theatre on Thursday night. The pint is simple. Fazio (C. liembleb unhappy in his poverty, and iu the vain pursuits of ale:quay, ,by the love of gold, tempted to incur the suspicion of murder, by robbing u murdered Miser. aised to the highest aillience by his ill-gotten wealth, lie is educed from the arms of his doating wife, Bianco (Mi:s O'Neill), to those of a beautiful, proud, and titled courtexam. Stung by the desertion of her husband, Bianca, in the blindness of her passion, resolves to tear him from thesedocer, by denouncing► him to dos Senate,. as the murderer of the Miser. The dreadful 'consequence of this act is the death of Fazio by the hands of the executi.,ner. Bianca, driven frantic by the deadly and unexpected cataatro fr ohe which followed the ungovernable impulse of her jealousy, dies of a broken heart. Mis O'Neill, as Bianca, exceeded all her former performances. The success of the Tragedy was must complete—it was announced for repetition on Monday next, amidst shouts of applause. It is remark able that Fazio has been published these tuo years, and has not been offered to any Theatre by the author. Mr. Dibdin, of the Surrey Theatre, has the honour of hav ing first tiisaovered the fitness of the story for Dramatis effect, and last season produced it under the title of " the Italian Wife." The Bath Theatre r:ext adopted it, and its success has been•sach as to materially benefit. the House. DRURY-LANE. A Tragic piece, called the Bride qj Abydo: (taken from Lord Byron's I'oem of the same title, and arranged for the stage by Mr.Dimond,) was performed for the first time Thursday night—Theplav (fitters in some respects from the Poem, it does mote poetic justice, but it is not so interesting. The scenery and decorations are very splendid, the acting throughout very effective. lican's was the chief character.—The piece was received with the highest applause.—The Duke and Duchess of Gluu. cestet were present. ON THE PRESENT ST.ITE OF ROME; We have been solicitous to learn from our hien& who have lately I travelled to :tome, in what st tic the city appears at this time respect. ing its originel grandeur in buildings, oolonaile , po. tieoes and arches —and we find that the reprineniations winch we save in prints. are very ill calculated to :gird use very dear idea of the real appearance. which those una.sy rcoonls of antiquity now prevent to the eve—for they are made from drawings of artists and bigenious men, de. birOU'iartiwesenting the whole in as complete a state a. p abl ani e . assisted by their genius and also by due labour, the pa .SCS covered by earth and many feet buried under ground, and capitals mule out from one or two mat remain perfeet, and porticoes. es:Thing as it were, their only support from the angles of flights of 6itllS watch the student rather studies at a secure distance. Fallen coliimas Slave been not only disfigured. but purposely mutilated by the auiltlera of small habitations, stables, and wart waxes, who sought for mate rials near at hand, and at as cheap a rate ax pos•ible—theme are freely affixed to time remnants of some high colonnade wl coon a linutts or a tataar trod—these seem to base vier, ised ihe mind of ma deers *nee. of either letters or opulence, no pi imacy desire to preserve any of these evidcnees of ancient anuals in the sane state a. their on. ginid compilers relate them; t air la ntlsium raili.r acted ;n uni.on with the moulierai; elements of fact, by yieldii g to the triump i of time, the arch et'Titus+the alas of Adrian—me thrum—and the temple—alike declare bow IA le their modern possessors have ritoerd ed their beauty or 'thel • value, :mil whatever may be the vaniy of their posse:won in the aiiniiraiion tat ilia: celebrated grandeur. t! . .ey can have been actuated by very little zeal for the tin., and fur ars simplicity of Roman architecture, while the best of thine remains are di.figured by ir.odarn abutments and adjuncts of the mane t dwell ings and materials, and by the duelers reelect of unoi.nerved decay. Hues of the mutilations has been oceasiooeck by the rapacity or avarice of travellers to enrich their own collections or those of die great amber nations ; but these are for the most part b miter' to busts or sfatucs—:.wlddi is rein the subject of our rresent they arc, though of infinite value, yet minor to the inionne ye extensive buildings in a env. At Rome we find their bi 01.." Issi:es • tale which chew only the piaet where these eminent proels et spieneiA genius Once Wonted the capital. it is the shame:el per.• r, on of great buildings thenp;elves, of which we cannot Im 1p cam we would readily admit of alteration. in their interior to renuer (kart carninixlietis for habitations in ibex b u t their exterior s could have been seamanly plebes/tad in all their itotaratt glory. givme like their prototypes et Atheas tlic law of nrehitecture to all ;cam aty " States once distinguished for military proweas.soinet..a A In> , own . their ar.ns from lassitude. and arc weary of fruitless car dent. a"—. the saute remark is upp.Lable to those once eminent as Athens and Rome, for sailpture and arehitNture, which in the mo..err. lassitude and luxury. shrink (min the exeirma of repvinng and preserving what deity: amuni t't an. seal a let:: beauty familiar to their daily sink: at last into entire dissoltdioa. Sir James Miiekintosii, M. . late Recorder of B m. bay, liasbali appointed Profe&or of Law in th ust Indiu Corege, Lierts, oil the re4ignazi a of E. Cl•ris , 'al, El Fr in an offieiA account printed by order of tlm' Hons.: Conimo s, it appears, ',ere •t p .t : confin,d i.i ie ,;..o; of Ne .gatc, u n ..ntet.e. of death, 5-1 meet and Women. Their crimes are either robberies or forgeries, but murder.