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Trial or Richard England.

in the habit of gaming with the defendant, and having, won of him at whit 1681. he drew upon him a bill for that fum, which he accordingly accepted.

It was then proved, that by fome means (not disclosed in evidence) this bill of 1681. came to the hands of the plaintiff, who had wrote a receipt on the back of it, purporting that he had received the contents of it.

A witness was called, by whofe evidence it appeared that the bills in queftion were two of thofe that had been given to the plaintiff, in fatisfaction of the 1681. bill.

The learned judge obferved, that the bill of 1681. was unqueftionably contaminated in confequence of its being founded on an unlawful gaming tranfaction; and the law was, that all bills or notes given as a fecurity for, or in fatisfaction for fuch fuit, illegal bills were void. This was the exprefs meaning of the ftatute against illicit gaming, a practice too prevalent among young men.

The jury found a verdict for the defendant.

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attention to a cafe, the importance of which they had collected from the reading of the indictThey knew that the.

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crime imputed to the unfortuneate gentleman at the bar was one of the greatest that man was capable of committing, that of wilfully and maliciously depriving a fellowcreature of his life. The principles of the law of England, and the administration of criminal juftice being perfectly clear in the minds of the jury, it would be unneceflary for him to explain much at large upon; they would be able to comprehend them without affiftance from him, perhaps any affiftance whatever; at leaft this was clear to them, that in proportion as the charge was of great magnitude, the evidence ought to be clear, precife, and fatisfactory, before a perfon ftanding in the unfortunate fituation of the prifoner should be pronounced guilty. The jury had now a folemn duty caft upon them upon this occafion; they would find themfelves called upon to pay attention to facts which would be laid before them; but all direction neceffary they would receive from the bench as applicable to the law upon the facts, because it was by this and this alone, that a true judgment could be formed. As to any obfervations which he fhould find it his duty to fubmit, the Jury would pay no attention whatever to them, except as they fhould appear to be fupported by evidence; and in forming their judgment either for or against the prifoner, he was fure that in the direction which they fhould have, they would have fatisfactory information with regard to the law. Whatever, therefore, fhould be his duty to state to the jury, fhould be merely with a view to direct

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Trial of Mr. Richard England.

their attention to the material circumftances of the cafe. But whatever they fhould hear from him in the opening of this cafe for the crown, they would receive merely as a narrative, and they would wholly fufpend all impreffions on their minds, be-caufe the mere recital of facts ought to have no weight with them, as they were afterwards to hear the evidence given by the witneffes; and the jury need not form any ideas of the law of this cafe, until they should have heard it explained by the learned judge.

To the jury was now committed the most important truft. On the one hand, they had under their care the life of the prifoner at the bar; on the other the care of the due and public administration of juftice, which was the fupport of the law of this country. They were called upon for the protection of innocence as well as the detection of guilt. They were to decide between the prifoner and the public, and to adminifter juftice in mercy and although mercy ought never to be loft fight of in a criminal proceeding, yet it was not to defeat justice. The jury in this cafe would require fatisfaction by the clearest evidence of the guilt of the prifoner, before they pronounced him guilty: for it was their duty, if they felt any doubt, to avail themselves of the general prefumption of innocence, which was the principle of the law of England; but yet they neither would nor ought to fhut their eyes against clear evidence of guilt. If the facts upon the evidence fhould be clear that the prifoner had been guilty of that breach of the law imputed to him, then the jury would have to perform a painful task, but ftill they would be bound by their public

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duty to perform it. God forbid, however, that they fhould do fo but upon the clearest and most fatisfactory evidence. When he had laid the cafe before the jury in pursuance to his duty, no man would feel more fatisfaction than himself, if the jury fhould find it. poffible to deliver the prifoner from the charge imputed to him. But before he proceeded further, it was neceffary for him to ftate to them the nature of the cafe which they were to try. It was not a direct murder, fuch as is generally committed in fecret, difficult of proof, and founded on circumftantial evidence, fo as to make it an intricate fubject of inquiry. It was an act committed in the face of day. The fact of the death of the unfortunate gentlemen for many years now no more, would not be matter of doubt in the courfe of the inquiry into this fubject. The only: queftion for the jury would be, whether the guilt of murder was, or was not, properly imputable to the prifoner at the bar for the fhare he had in that tranfaction. But if he was right in the law, he was afraid that the application of it to this cafe would denominate this act of the prifoner murder. What might be the notions entertained of honour in this country, what impreffions thofe notions might make on the private feelings of individuals, it was not his duty to fettle. He was afraid that thefe notions, which were too generally entertained upon that fubject, were

fuch as could not be defended in a court of juftice. He believed that our modern notions of honour were neither confonant to the law of this country, nor the law of God. The rule of the law of this kingdom upon this cafe, he maintained to be this.-Įf · a

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Trial of Mr. Richard England.

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The jury would find, under the direction of the bench, that in point of law the offence in fuch a cafe would be complete. They would, therefore, in the prefent cafe, make application of the fact to the law, and they would then determine whether the prifoner was guilty or not.

Whe

ther the circumftance called for the feverest punishment to the utmoft rigour, in cafe of conviction, must be afterwards fubmitted to the tender confideration of the fountain of mercy in the exercise of the royal prerogative; but the court could only proceed according to law. He had ftated what occurred to him upon this fubject. It would be extremely right, however, for all the circumftances of this unhappy tranfaction to be laid before the jury, to enable them to form their judgment for or against the unhappy gentleman who now food upon trial for his life. If this cafe fhould at laft turn out to be a cruel cafe against the prifoner, he fhould feel no inclination to prefs that matter upon the confideration of the jury. He fhould call his witneffes according to his inftructions, who would give the jury an account of all the circumftances attending the tranfaction, as far as they knew them.-But his witneffes, from the nature of the cafe, must be liable to mistakes and impofitions of every kind.They would, however, give an

account, as far as they could, of all the circumftances; and the jury would judge of them as they were applicable to the guilt or innocence of the unfortunate gentleman at the bar, as to the crimes imputed to him. The teftimony would be judged of as it was credible, either for or against the prifoner. All the circumftances, as far as they came to his knowledge, fhould be laid before the jury, and he fhould leave the counfel for the prifoner to fupply in his behalf, if they fhould be able, that which was defective in 'favour of their client. After all this was done, the jury would confider, under all the circumftances of the cafe, whether the prifoner was the cause of the death of the unfortunate gentleman who fell in this unhappy affair; and in judging of this the jury fhould not only be well acquainted with the fact itself, but also with all the circumftances immediately connected with it. Whatever allegation which fhould be made on the one fide, or on the other, not immediately belonging to the unfortunate catastrophe that happened, the jury would difmifs, and they would keep their minds free from all impreffions which might be felt by the fuppofed character of the accused party. They would let rumour, which, he was forry to fay, had too much prevailed on this tranfaction, have no effect upon their minds. They would look at nothing but the evidence which should be given in the cause; by that, and by that alone, fhould they be guided in their opinion.

The learned Serjeant then proceeded to detail the circumftances of the cafe, and the facts on which it originated, fome of which were afterwards given in evidence. When he came to take

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Trial of Mr. Richard England.

notice of the delay which had taken place in the courfe of this profecution, he observed to the jury, that it arose from the conduct of the prifoner. He quitted the kingdom immediately after the unhappy act, which formed the prefent charge, and remained abroad for many years. That he lately returned to this country, was apprehended upon the outlawry, pleaded to it, and the outlawry was reverfed, and he now remained to be tried upon his original indictment. It was now twelve years fince this unhappy accident happened. The jury might think perhaps there was a degree of animofity in the profecution of this man at this distance of time: upon this he fhould only fay, that it would be a principle extremely dangerous to the adminiftration of juftice, if perfons who had committed crimes were to withdraw for years, and afterwards to return and be permitted to avail themselves of the length of time which they had been absent, as a reafon for their not being tried. In this cafe, the perfon who profecuted was performing merely her duty, but The was actuated by the feelings of a mother. Her fon had fallen by the hand of the prifoner, and her feelings would not permit her to fuffer that person who the conceived to be the murderer of her fon, to walk at large in this country, until after there fhould have been an investigation of the cafe in a court of justice. He was fure that whatever the feelings of the mother might be, the wifhed the prifoner to be tried on the principles of public juftice; and if the prifoner fhould be acquitted of the charge, he trusted the animofity of the mother would be buried. He concluded with obferving, that he had no doubt but

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the jury would give to the cafe the attention which the importance of it demanded. Should they have any doubt upon the cafe, they would give to the prifoner the benefit of that doubt. But fhould the cafe be quite clear against the prifoner, painful as it might be to the feelings of the jury, they would pronounce him guilty.

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Lord Derby faid, he remembered being at Afcot races in the year 1784; and he remembered, that the prifoner at the bar and Mr. Rowles were there. The firft thing that ftruck him was an addrefs to the company by way of caution, that the deceafed was a man who would neither pay the money he borrowed, or loft. Mr. England was then fitting on a bench in the ftand; Mr. Rowles came up to him in a very boifterous and violent manner, and appeared to offer to ftrike him, adding words to this effect" What do you mean by that, you rascal, fcoundrel" or fome fuch word. The prifoner, with as much coolnefs and temper as his lordship ever faw in his life, faid-" Stand off, or I fhall be obliged to knock you down; our altercation has already too long interrupted the company if you have any thing to say to me, you or your friends well know where to find me.' "" His lordship added, he had reafon to believe fome further altercation took place between the parties, from the circumftance of their remaining in that fituation for some time; but, from the noise, he was not able to collect any more. Some time after this the parties withdrew; and his lordfhip knew no

more of the matter.

Captain George Denisthorp being called, he obferved, that as a rumour had gone abroad, that

he

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he was fecond to one of the party, he fubmitted to the court whether he was bound to give his evidence in this cafe, as he might by his evidence criminate himself.

The withefs having withdrawn, the right of examining him was argued by counfel on both fides; after which the witnefs was called in again. He was told by the court to ufe his difcretion, for that he could not be compelled to give his evidence in this cafe After fome confideration, he declined it, and withdrew.

Mr. Serjeant Adair then propofed to make evidence of the depofitions which were taken before the coroner, when the inqueft was taken on the body of the deceased Mr. Rowles. Four of the witneffes that were examined on that inqueft were dead. The coroner is dead alfo. A perfon was able to prove the hand-writing of the four witneffes, but not the handwriting of the coroner: and therefore that part of the cafe for the profecution was neceffarily abandoned.

John Sandiford, a coach-mafter, faid, that in the month of June, 1784, he went to Cranford-bridge with a coach, and a lady in it, when he went to refresh his horfes. In confequence of what was faid to him, he was induced to go to the houfe, which he pafied through, as well as the garden, and there he faw two gentlemen fighting a duel in a field near Mr. Goddard's houfe, about fifty or fixty yards off. He had an opportunity of feeing what was paffing. There were four of them there, two to the eaft fide, and two to the weft fide. He knew one of them, and he was the deceased Mr. Rowles. He believed they might be about eighteen yards diftance from cach other, but he did not recollect ex

actly, it was fo long ago. Mr. Rowles was dreffed in a lightcoloured waistcoat, and fome ftripe on it, to the best of his recollection. He had no coat on; he was in his fhirt fleeves. He heard a lady cry out, "Have not you tried your courage by three fires, or do you mean to murder one another?" He could not pretend to fay that this was faid loud enough for the gentlemen to hear it. He had been near enough to hear the report of piftols before this; but after he came into the field he only faw two piftols fired. After this the lady cried out aloud, that Lord Dartry wanted to speak with them. The four gentlemen then came near the hedge, and left the ground they had been firing from. On this the witnefs took notice of them. They appeared to him to have a converfation, but he did not know what it was. They went to the place again, and took the fituation which he faw them come from; he did not know the distance exactly; but he believed it was about eighteen yards as before. He believed they both prefented their pistols; Mr. Rowles' went off, but the other gentleman's did not go off. The witnefs did not know that gentleman; he was told it was England. -He prefented his piftol again, and it went off, and fhot Mr. Rowles in the groin, as near as the witnefs could recollect. The time before this fire, this gentleman fnapped, but did not flash; after Mr. Rowles was fhot, he took a little bit of a reel and fell on the ground. The person who shot him made the beft of his way out of the field. There was a cry of "keep on," but from whom he could not tell; the witness did not fee them go up to Mr. Rowles when he fell. He had no oppor

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