The counsel in behalf of the prisoner acknowledged the great candour of the gentlemen who were concerned for the prosecution, in their not endeavoring to aggravate the circumstances attending the of fence. They confessed the truth of all that had been sworn by the witnesses; but insisted, in behalf of the accused party, that, though his hand might have made an unhappy blow, his heart was innocent.

The following is the substance of their arguments on the case: They said, that the fact could not amount to murder at common law, which Lord Coke defines to be an unlawful killing another man with malice aforethought,' either expressed by the party, or implied by the law. They said, that in this case there was not the least malice, as the young gentlemen were friends, not only at the time, but to the close of Ricket's life, when he declared that he forgave the other.

They said, that it being proved that there was a friendship subsisting, it would be talking against the sense of mankind to say the law could imply any thing contrary to what was plainly proved. That deliberation and cruelty of disposition make the essential difference between manslaughter and murder; and they quoted several legal authorities in support of this doctrine. One of their arguments was urged in the following words: Shall the young boy at the bar, who was doing a lawful act, be said to be guilty of murder ? He was rescuing what was his own: the witnesses have told you that, after he had given Rickets a piece of cake, Rickets went to him for more: he denied to give it him: he had a right to keep his cake, and the other had no right to take it; and he had a right to retake it.

There are cases in the books

which make a difference between murder and manslaughter. If a man takes up a bar of iron, and throws it at another, it is murder; and the difference in the crime lies between the person's taking it up and having it in his hand: Chetwynd had the knife in his hand, and upon that a provocation ensues, for he did not take the knife up; if he had, that would have shown an intention to do mischief. It may be doubted, when he had this knife in his hand for a lawsuk purpose, and in an instant struck the other, whether he considered he had the knife in his hand; for, if in his passion he intended to strike with his hand, and struck with the knife, not thinking it was in his hand, it is not a striking with the knife.

That it was to be considered whether there was not evidence to except this case from the letter of the statute 1 James I.'

The other arguments of his counsel were to the following purpose:

At the beginning of the fray, Rickets had a knife in his hand; and it was one continued act. And another question is, whether there. was not a struggle? Here was the cake taken, and, in endeavoring to get it again, this accident happens. At the first taking of the cake, it is in evidence that Chetwynd was not forced to extend his arms, unless the other was coming to take it from him, and then a struggle is a blow.

"This act of the 1st James I. was made for a particular purpose: on the union of the two kingdoms there were national factions and jealousies, when wicked persons, to conceal the malice lurking in their hearts, would suddenly stab others, and screen themselves from the law by having the act looked

"On the second indictment it was said, that the counsel for the prisoner had in effect contended that the statute 1 James I. should never be allowed to comprehend any one case whatsoever, or extend to any one offender, which would entirely frustrate that statute; since it was only made in order to exclude such persons who stabbed others upon the sudden from the benefit of clergy; and was intended as a sort of correction to the common law, by restraining such offenders, through fear of due punishment, who were emboldened by presuming on the benefit of clergy allowed by the common law. But, if it is to exclude none from their clergy, who at common law would have been entitled to it, it can never have any effect, and may be as well repealed. 'And, if the statute is to have any force or effect at all, there can be no doubt but it must extend to the present case. It is expressly within the words: Mr. Rickets was stabbed, having then no weapon drawn in his hand, and not having before struck the person who stabbed him. It is plainly within the intention; which is declared in the pre. amble to have been in order to punish stabbing or killing upon the sudden, committed in rage, or any other passion of the mind, &c. and therefore it was submitted to the Court, whether, upon the facts proved, and not denied, the consequence of the law was not clear, that the prisoner was guilty within both indictments.'

Mr. Baron Reynolds and Mr. Recorder, before whom the prisoner was tried, taking notice of the points of law that had arisen, the learned

arguments of the counsel, and the many cases cited upon this occasion, were of opinion that it would be proper to have the facts found specially, that they might be put in a way of receiving a more solemn determination.

A special verdict was accordingly agreed on by all parties, and drawn up in the usual manner; viz. by giving a true state of the facts as they appeared in evidence, and concluding thus: We find that the deceased was about the age of nineteen, and Mr. Chetwynd about the age of fifteen; and that of this wound the deceased died, on the. 29th of the said September; but whether, upon the whole, the prisoner is guilty of all or any of the said indictment, the jurors submit to the judgment of the Court.'

In consequence of this special verdict the case was argued before the twelve judges, who deemed Chetwynd to have been guilty of manslaughter only; whereupon he was set at liberty, after being burnt in the hand.

As we have given the opinion of the counsel in this case so fully, it will be the less necessary to make any long remarks on it; but it is proper that we should earnestly recommend to young gentlemen who are placed at seminaries of learning to avoid quarrels; to cultivate the friendship of each other; and to live in harmony, like so many brothers of the same family.

Thus will they acquire the esteem of their preceptors, rivet the love and affection of their parents and other relations, and take one essential step towards obtaining the blessing of God.

of the jury, that they recommended the prisoner to mercy in consequence.

At the sessions held at the Old Bailey in the month of May, 1744, Robert Fuller, of Harefield, in Middlesex, was indicted for shooting at Francis Bailey, with a gun loaded with powder and small stones, and demanding his money, with intent to rob him.

Mr. Bailey deposed that, as he was returning from Uxbridge market, he saw a man near Harefield sitting on a stile, having a gun in his hand: that he jumped off the stile, seized the horse's bridle, clapped the gun to Mr. Bailey's body, and threat ened to shoot him. Mr. Bailey said, "That will do you no good, nor me neither' he then put his hand repeatedly into Bailey's pocket; but the latter would not submit to be robbed, and rode off: immediately on which Fuller shot at him, and wounded him in the right arm, so as to break the bone in splinters; and many stones, and bits of the bone, were afterwards taken out of the arm; nor did the prosecutor recover of the wound till after languishing near twenty weeks.

The prisoner, however, had not an opportunity of robbing Mr. Bailey, as his horse took fright and ran away at the report of the gun.

The substance of Mr. Bailey's farther deposition was, that this happened about seven o'clock in the evening, on the 24th of February; but that, as it was a clear starlight night, he had a full view of the prisoner, whom he had known before.

Bailey was now asked if he had ever been examined before any justice of the peace in relation to the fact; to which he answered in the negative. He was then asked if he had never charged the crime on any other person except the prisoner,

which he steadily denied having done.

In contradiction to this a commitment was produced, in which Thomas Bowry was charged with assaulting Francis Bailey, with an intent to rob: and this Bowry was continued in custody, on the affidavit of Mr. Mellish, a surgeon, that Mr. Bailey was so ill of the wounds he had received that he could not come to London without danger of his life: but Bowry was discharged at the gaol-delivery at the end of the sessions for June, 1743.

The copy of Bowry's commitment was now read, and authenticated by Richard Akerman, clerk of the papers to his father, the then keeper of Newgate.

On this contradictory evidence the characters of both parties were inquired into; when that of the prosecutor appeared to be very fair, that of the prisoner rather doubtful.

Upon considering the whole matter, the jury gave a verdict that he was guilty, but, on account of the circumstance above mentioned, relating to the commitment of Bowry for the same offence, on Bailey's oath, they recommended the pri soner to the Court as a proper object of the royal clemency, and he was accordingly pardoned.

This affair is one of that intricate nature which must remain involved in mystery. It is impossible to say whether the prosecutor was or was not mistaken in the man against whom he swore; but we see that he had sworn the same fact, with equal positiveness, against Bowry: and this circumstance evinces the great propriety of the jury recommending the convict to mercy, where there is even but a bare probability remaining of his innocence; for in doubtful cases we should always incline to the side of mercy.

THIS woman was tried at the Old Bailey, in June, 1744, for the wil ful murder of her husband, John Adler, by throwing him on the ground, kicking and stamping on his groin, and giving him thereby a mortal bruise, of which he languish. ed in St. Bartholomew's Hospital from the 11th till the 23d of May, and then died and she was again indicted on the coroner's inquest for manslaughter.

Hannah Adler, daughter of the deceased, swore that he told her his wife had given him the wounds which afterwards occasioned his death.

Benjamin Barton deposed that the deceased came to him on the 11th of May, with a bloody handkerchief about his head, and asked him for a spare bed, saying, This eternal fiend (meaning his wife) will be the death of me:' but Barton, knowing the woman to be of a very turbulent disposition, refused to lodge the man. After this, he visited him every other day during his illness; and he very often said, 'I wish, Mr. Barton, you would be so good as to get a warrant to secure this woman, for she will be the death of me;' and, two hours before he died, he inquired if such a warrant was procured; and desired that Barton would see her brought to justice, which he promised he would, if it lay in his power. Hannah Adler, being farther

questioned, said that her father died between twelve and one o'clock: that, about two hours and a half before, he said, I am a dead man, and this woman (the prisoner) has killed me. That, after this, he repeatedly declared that his wife was the person that had murdered him, and begged that she might be brought to justice. His last declaration was made only about ten minutes before he died.

Mr. Godman, a surgeon, deposed that the husband died of a mortification, occasioned by a blow; but acknowledged that the deceased had a rupture, and that such a blow as he had received would not have hurt a person in sound health.

The prisoner, in her defence, said that her husband had two wives besides her; and that a quarrel happening between her and one of the others, the husband endeavored to part them, and, in so doing, fell down, and the other woman fell on him; but that she herself never lifted hand or foot against him.

Joseph Steel deposed that the deceased had had four wives; that he was kind to them all at the first, but afterwards used to beat them severely; and that he had seen the prisoner and her husband frequently fight together.

The jury gave a verdict of manslaughter; in consequence of which she was burnt in the hand.

PATRICK BOURKE and George Ellis were indicted at the Old Bailey, in December, 1744, for killing fifteen ewe sheep, the property of John Messenger, of Kensington, with intention to steal part of the

carcasses, to wit, the fat near the kidneys.

Mr. Messenger deposed that he had lost fifteen ewes; that their throats were cut, their bellies ripped open, and the fat taken out: he