The Sun.
London, England, 1817-11-21 00:00:00

FOR THE SUN.

MR. EDITOR,-1 will pay to your candour a
fairly deseried compliment ; and request insertion
for the following observations, even though they
militate against your own opinion, avowed very
plainly, and, as I expect to prove, very unad-
visedly.

It rather surprises me, Sir, that a man should
hastily deliver to the world, especially tvlien his
functions as an Editor give inure than' common
weight to his sentiments, Opinions and judgments
which should have been preceded by much ma-
ture reflection. I❑ your zeal against the t►irpi-
tude °Wu:case, you cease to distinguish between
the charge and the proof :--for it is of just and
humane necessity, that the appellee should nn►t>
be considered at least as innocent as before his
original ; if.oot still more innocent, by rea•
son of lti, subsequent acquittal.--The atrocity of
the c---:*trt-toininitted as it assuredly lutist have
been Vittornebody—is a very sufficient argument
for the heir of the deceased, that he should resort
to the law of appeal ; but no argument against the
accused, that he should not also resort to thatlaw,
and have its full benefit.

In this, I disclaim " pity:" I demand only jus-
tice. " The strength of the circumstances" are
not to be brought into the question, as they have
been already discussed by the Jury which acquit-
ted THORNTON ; and the appeal is not to be strain-
ed into a censure of their verdict. Stramge as the
anomaly is, which, by sanctioning such appeal,
contravenes the acknowledged principle of the law
—and otherwise a pervading principle—that no
man shall twice be put in jeopardy of his life for the
same offence—l admit it as the law, without en-
deavouring to reconcile its inconsistency but I
MS( protest against the thoughtless sentimenta-
lity which would bend an obsolete law to '' the
-general opinion." And assuredly, if pity is not
to operate_for THORNTON, prejudice is not to ope-
rate against hint.
- This prejudice is, as the Counsel for the ap-
pellee well observed, abundantly sufficient to jus.
tify him in wagering his battel :—but I will go a
step farther, and insist, that the appellee is as
justified in his wager, as the appellant is in his
appeal.—Each followi the mode which the rude
institutors of !his law conceived in their supersti-
tion just and reasonable ; and no part of this law
is more obsolete for the one than for the other.—
It makes me smile, indeed, to hear this outcry
againSt THORNTON for his obsolete defence, while
ASHFORD is so warmly vindicated in his obsolete
accusation ! •

For my part, Sir, I account the Trial by Appeal
so inconsistent with our recognised law, and with
natural justice, that I wish the appellee in every
case to be entitled to its full benefits; and in no
case more ►han the present, wherein the hottest
passions and prejudices are aroused against the
devoted prisoner. Of the crime, my abhorrence
yields to no man's :—but for that especial rea-
son, I am afraid. of my own feelings, and would
resist them with all the armour of the law. Were
the community at large to be THORNTON'S Jury
on the appeal, I fear that the beauty and the youth
of poor MARY ASHFORD would prove his heaviest
accusers ; and as once before it happened in the
case of Hatfield with Mary of B►►ttermere, be
would be hanged for the fashion's sake.—l say
not this io levity ;—but 1 cannot lend myself to a
personal prejudice, which a whole nation of wo-
men, neither young nor handsome, could nut have
stimulated.

That the Law of Appeal is in itself unreason-
able and unjust, is an argument that it should
henceforward be abolished altogether ; but not
that its privileges should be abridged in any ex-
isting case. IVhatevei advantage it affords to
the appellant, the appellee is equally entitled to
receive :—it must be given or refused to•both, or
to neither. And if any injustice be found in the
remedy of appeal—which, by the bye, must be
taken in all its parts, not piece-meal—the fault is
with him who sought it, not with hint who is
forced into it. We are not to cry out against a
plea, which the same Law gives to the appealed
and, when we consider the disadvantages of a se-
cond trial, with all his defence previously dis-
closed, and new evidence, or at least new argu-
ment, prepared for its defeat, not to mention that
blood-thirsting prejudice whereof any twelve men
will find it difficult to unload themselves, we shall
not perhaps wonder at THORNTON'S resorting to
the most violent plea against a violent charge.
Yon seem to take much comfort, Sir, front the
hope that this plea will be disallowed. Upon
very ancient authority, give me leave to shew that
its disallowance is rather improbable. The report
cursorily says, that the appellant is only seven-
teen :—were this the fact, I think it would have
more strongly been adverted to :--nevertheless,
the necessary minority of the appellant, as laid
down Jay FLETA, is only fourteen :—and at all
events it cannot have the effect of baiting the'
appellee's wager of battle, but of barring his own
appeal. FLETA assigns four reasons, which can
alone deprive the appellee of this plea :—the Royal
dignity, since the whole Country is the King's
Chanivion ; the appellant's being a woman ; the
disability of a mains; and the having reached
threescore years. And these four cases, says
FLETA, impose upon a man the necessity of -ale-
•fending himself by his country :—that is, of going•
to trial before a Jury :—" and he shall have the
ELECTION of putting himself upon his Country,
or of defending himself by his body, except in
these four cases above-mentioned."—FLETA, L.
1. cap. 31. sect. 27.
Before this ultimate plea is admitted, the Judges
are bound to examine thoroughly every. circum-
stance and form of the appeal, and to quash it if

[PRICE SEVENPENCE.

at all irregular ; even' though, the appellee should
not have availed himself of the informality :—but-
there is not the least anthority for their refusing
his election of the wager of battle at their dis-
cretion. It is a plea. of right, as much as the
appeal is a writ of right. Each, if correctly de-.,
mantled, is ex debito justitice.—BßlTToN also lays,
down 'the same pt inciple of election in the strong(
terms.--cap. 22 sect. 12.
I observe the process of the battle extractefk7
from our books into the daily meta with sufficieni_
.accuracy :—therefore, I shall not occupy
,your co-
lumns, Sir, with any detail. They do not, how-
ever, as I have seen, mention that the parties
must 4ppear in armour, %rid], staves of au ell's
length, defended-with leathern targets; their legs
naked, and their feet covered with red sandals.
The absurd unreasonableness o' this proof,
which attaches God's sanction to mere personal
strength, or a'thousand.ad ventit ions circumstances,
is too gross for the nineteenth century. If the
" wager'' is fought out in thC presence of the
Judges and Scrjcants, aK it must be if fought at,
all,we way not find our coifed sages more stout and
steady than were their predecessors, before whom,
says Sir LIF.NItY SPELMAN,It was fought In Tothill-,
fields, `.` non sine magi juris-consultorum perlur-
batione."

'Dins, Sir—and not by the appellee, but by the
appellant alone, we see ourselves replunged into
the darkness of the curfew times and ail our sub-
sequent illumination extinguished. An ordinance
is revived, founded in superstition, and outliving
the law that gave it birth, as well as the manners
for which it was framed : ne:ther, while it places
the .accuser and the accused on an equal footing,
does it offer any aid to Justice, or derive from Jus—
tice any sanction. Its remedy—if indeed it can
lee so called—after having been exerted once only
or twice through many centuries, is now in full,
vigour in two cases; here, and at Dublin :—and,
without the interposition of the Legislature, it
may be expected in civil as well as criminal cases,
in every term and every assize, to throw us back
upon superstition, and violence, and ignorance.
For—as if to prove its absurdity still more
strongly—the trial by battle, vadiatio duelli, is an
available plea in civil cases also : with this diffe-
rence, that in these, the parties may fight by.
proxy ; whereas, in criminal cases, they must
fight in person. The Courts will do well to seek.
the legislative abolition of a grievance which bids
fair to knock up their profession ; and Sir SAMUEL
ROMILLY will, if he be wise, bring in a Bill ac
comlingly.—Else,Wesfminster Hall must be trans
ferred to Tothill-fields ; parchment rolls 'must,
give place to ell-long cudgels; the. venerable"
Judges must sit to see plaintiff and defendant-.
breaking each other's bones from sun-rise to star-
ri,e ; and, whoever has the lick to retain Serjeant..
Cribb or Counsellor Belcher, may get or keep as."
much of his neighbour's land as be has a mind
for.

All this sounds •ludicrously it is not the,
less. possible. It is completely within. the allow•-
ance of the existing Law. That it
.may be abor.,,
lisped, I earnestly hope :--but, until then; itS
privileges are available of right, and cannot be•
denied to whosoever shall make his " election".
for them. ,While air appeal, of blood or of land,.
can be had, it may be answered by that plea
which is co-existent with its institution. It is a
remedy, unjust, and extreme, in favour of the,
appellant :—to deprive the appellee of any of his
rights under it, would only increase its injustice'
and its extremity. We shall be wise, in permit-
tint; its ordinances to ►emain equal :—more
in abolishing them altogether.

PROB US.

DAY AND MARTIN'S BLACKING.--Order of the
Court of Chancery, made Ist of November, 1817,-
in a cause, CHARLES DAY against JOHN and JAMES
BOWLING.—" That an injunction do issue to re-
strain the said John and James Bowling, their
servants, agents, and workmen, under the pe-
nalty of 5,0001., to be levied upon their and each
of their lands, goods, and chattels, from pasting
or affixing to the . bottles containing the compo-
sition of Blacking made or prepared or sold by
the said John and James Bowling, or front circu-
lating, distributing, or delivering, or otherwise
using any labels being copies of, or colourable
imitations of the labels nsed by the said Charles
Diy, as the continuing partner of the firm of Day
and Martin, or any other label, or description, by
which the composition made by the said John and
James Bowling shall be described and represented
as being a composition actually made and manu-
factured by Day and Martin ; and more 'intim-,
larly any label or labels having the names of Day
and Martin subscribed or annexed, either actu-
ally or apparently or ostensibly, as a signature
thereto."

.A few *lays since Messrs. COOPER and Co. Sur,
geons, of Charlotte House, Great Charlotte-
street, Blachfriars-road, gave an elegant enter-
tainment to several of their friends ; among the
company were Six Gentlemen who assisted in ex-
tinguishing the late fire at the Medical Board.—
The dinner was at Mr. Cleveland's, Dog and
Stile Tavern, St. George's fields. On having his
health drank by the Treasurer of the Board who
presided, Mr. C. expressed himself in handsome
terms, declaring he was under the greatest
obli-
gation to • the Medical Board for the cure of a
dreadful rupture, .seventeen inches round, with
which he had been afflicted many years, and
deemed incurable by eminent Surgeons. Several
Medical Gentlemen 'present (one from the York.
Hospital) expressed their pleasure in witnessing
so good a 'case. Dr. CoopEß's health was then
drank with enthusiasm. The dinner was exeel.-
lent, served up in the first style, and the evening
concluded with hilarity,