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

1111 aill:R.

The argument in the demurrer in this case havin;
been fixed for to day, and their lordships having order.
cd that the parties should be present, the appellee was
put to the bar, in the usual custody, at a quarter be-
fere nine o'clock ; the appellor entered ti'.e body of the
Court with his counsel. Shortly before ten o'clock,
all the avenues kcame so much crewded that bar-
risters could not get to their
eulty, a great number of people were als9 assemblA in
tise hall. Mr. Clarke, Mr. Gurney, Mr. Richardson,
and Mr. Chitty, appeared as befbre, fi,r the appeller,
and Mc. Readz:r, Mr. Reynolds. and Mr Tindal. for
the appiTee. Their Lordships did net arrive until past
ten o'clock.

Lord Ellenhorough inquired, (after the ease had beer,
called on by Mr. Le Blanc,) whether the patties were
present ; Mr. Clarke replied, that the appellor (vas on
the floor ; and d'.. Reader sh!enifled, that his elient :ens
at the ter. Lord Ellenhorongh desired that the appel-
lor she,eid take a seat, he having risen on the entrance
al their Lordships, told Mr. Reader requested, that the
appellee might be allowed the saute indulgence, which
was granted immt dia t :21y .
Mr. Chitty then rose to commence his argument.
He observed, that this was a demurrer to a replication,
to a counterplea pleaded by the appellor, in answer to a
wager of battle, of which the appellee had attempted to
avail himself. He then stated the various pleadings
which we have inserted from ti:ae t.) time, and to which
we refer, He contended, that the replication to the
counterplea was instiffictent en two grounds : I:it, That
it is not competent to the appellee, in answer to -a
counterplea, to state circumstances affhteling a pre-
sutnpt ion of innocence. :Id. That the circumstances, as
stated in time replication, were no answer to the coot:-
tcrplea. In discussing this important and intricate
case, he should confine himself as closely as possible to
questions of law ; but as it had been intimated on the
other side, that an attempt would be made to show
that the counterplea was insufficient, it would be nc.
cessary for him to inquire into the law and principles
of the writ of appeal, and trial by combat ; and be
should contend, that a person appealed of a suppose -1
murder is not entitled to wage battle, when evideri,e
exists afffirding a presumption of guilt.
The Learned Counsel than entered into a long and
minute citation of all the authorities on the subject cc
trial by battle; beginning with the statute of Glocestee
(6 Edw. I) and concluding with Robertson, Reeves,
Henry and Barrington, from all which he endeavoured
to prove that the trial by battle was in the arbitrament
of the Court, according to the presumption.;.
He likewise quoted Erskine's Prin. of the Scotch
Law, lit. Probation, p. 4G3, and from Cowers Inter-
preter, lit. Sullidure, or South-door of die church. He
was proceeding with a quotation from an anonymous
work, entitled- Anti due°, printed in 163:?, when he
was stopped by the Court, as it did not appear to be
the opinion of any historian as to the construction of
the law. Mr. Chitty said, that he offered it only by way
of observation, and as an eloquent invective against the
immorality and impolicy of the trial by battle. In this
view he was allowed to continue and to conclude it.
He next proposed to bring forward from the year Books
and other authorities some decisions applicable to this
particular case; first, in Hiliary Term, 6 Hen. Ili.
quoted in Fitzh. Abr. tit. Covromae, pl. 411.
In reference to this last authority, Lord Ellenbo-
rough put it to Mr. Chitty, what part of the counter-
plea he could point out as aifording such pregnant evi-
dence of the guilt of the appellee in this case as within
the cases would oust the appellee of his right of
battle.

Mr. Chitty replied, that he meant only to cite these
cases from the Year Books, for the general rule, and
not so much for its particular application. He next
referred to the Year Books, 20 Edw. IV. p 6; to Bro.
Abr. tit. Battaille, p. 4 and 5 ; to Hargr. St. Tr. 1., 11.,
and IL 233; and to Young v. Slaughterford: Hagr.
St. Tr. IX., 541 ; and 11 Mod. 217 and 228. This
last case resembled the present in several circumstances,
and, according to the report, Lord Holt, uho tried the
prisoner at the assizes, for the murder of Jane Young,
directed an appeal, and in the course of the proceed-
ing, had called it " a noble prosecution, and a true
badge of Euglish liberty," referring at the same time,
to the stat. of Gloucester. After noticing the form of
a counterplea in Term. P. C. p he quitted this part
ofhis subject, and entered upon an examination of the
counterplea of the appllant in this ease, in order to
show that it disclosed circumstances establishing a pre-
sumption of guilt strong enough to \Tarrant the Court
in disallowing the wager of battle. He was describing
the body of Mary Ashtbrd as having hcea thrown into
the pit of wuter, when he was interrupted by
Mr. Justice Bayley, who said, that nothing tvas stat-
ed to prove that she had been thrown into the pit ; for
aight that appeared she might have thrown herself i;lto

the waver.
Mr. Chitty contended, that the circumstances strong-

.(' 4~R. n

Iv indarca the inference that a,e wag throvn into the
11.,t ; the bleeding budy appL!.:rea.„ ha•rc
in the arm: of sy.no person along .t,„ I►ath, ,11
111001 had trickled upon some clover by Ate :.isle et• tint
path ; the dew had not been brushed away iv any 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
it, thu 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 his
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.