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

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.M13106..rs 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.