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1729: James Cluff, on appeal

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From the Newgate Calendar:

This unhappy young man was born in Clare-market, and lived as a waiter at several public-houses, in all of which he maintained an extraordinary character for diligence, obligingness, and integrity.

Mr. Payne, master of the Green Lattice, in Holborn, hired Cluff [or Clough -ed.] as a servant, and during his residence there, he fell in love with Mary Green, his fellow-servant; but she being courted by another man, constantly rejected his addresses, which frequently agitated his mind in the most violent degree.

Green’s other lover coming to see her, sat in the same box with her, and was received by her in an affectionate manner; but this did not seem to be much regarded by Cluff, who was then engaged in attending the customers: but when the lover was gone, Mr. Payne, perceiving that something had discomposed Cluff’s mind, asked him the reason of it; but could not prevail on him to tell the cause.

While Mr. Payne and his wife were at dinner in the parlour, and the girl was eating her dinner in one of the boxes, Mrs. Payne heard a noise, as if two persons were struggling, and going into the tap-room, Cluff said, “Come hither, madam.” On this she advanced, and saw the prisoner holding the deceased by the shoulders, who was sitting on the floor, and speechless, while the blood streamed from her in large quantities.

Mrs. Payne called out, “What have you been doing, James?” He said, “Nothing.” He was asked if he had seen her hurt herself? He said, No; but that he had seen her bring a knife from the cellar where she had been to draw some beer for her dinner. Mr. Payne now entered the tap-room, and then went into then cellar to discover if there was any blood there; but finding none, he accused Cluff on suspicion of having committed the murder; and instantly sent for a surgeon. When the surgeon arrived, he found that a knife had been stabbed into the upper part of the thigh, and entered the body of the girl, in such a manner that she could not survive the stroke more than a minute. [i.e., it gashed her femoral artery -ed.]

A bloody knife was found in the room, and Cluff was committed to Newgate for the murder. On his trial, the surgeon deposed that the knife fitted the wound that had been made, and that he believed the woman had not killed herself: but the jury acquitted the prisoner, from what they deemed insufficiency of evidence.

A discharge of the accused party would now have followed of course; but William Green, the brother and heir of the deceased, immediately lodged an appeal in consequence of which Cluff was brought to trial at the next sessions but one, when his case was argued with the utmost ingenuity by the counsel for and against him, but this second jury found him guilty, and he was sentenced to die.

Holy double jeopardy! Though rarely used, it was indeed formerly an option for a victim or a victim’s heir to lodge a private appeal against the purported malefactor, even one who had already been acquitted — indeed, even against one who had been convicted and then pardoned.

The distinction between a “public” and a “private” prosecution was usually more theoretical than real, since — at least until Sir John Fielding began organizing professional police in the late 18th century — even normal Crown trials often depended mostly on the exertions of the victim or friends to bring a man to book with sufficient evidence to punish him.* But in a close case, like Cluff’s, the rarely-used private appeal option could occasionally offer what amounted to a second bite at the apple.** (See Whores and Highwaymen: Crime and Justice in the Eighteenth-century Metropolis)

Perhaps tracing to the ancient weregild system of atoning crimes via direct redress by offenders to their victims, private prosecutions were completely immune from interference by a sovereign pardon. (However, they could be dropped any time the prosecuting party wished — which also made them leverage for extracting cash settlements.)

Back to the Newgate Calendar:

“I earnestly press’d upon him to glorify God by a plain Confession of his Crime, and urg’d to him the most material Circumstances, in Consideration whereof scarce any Body doubts but he committed the Fact. He could not pretend that his Master, or Mistress, who gave him the Character of a good Servant, had any Prejudice, or Ill-will to him, upon which Account they might be easy, whether he lived or died. He neither reflected on them, nor none of the Witnesses, as if they had any View in Prosecuting him, but that Justice might be executed. I urg’d him with the Surgeon’s Opinion, that it was improbable, if not impossible, for the Maid to give herself such a Wound; that she had no Knife in the Cellar; that in the first Trial, three Persons had sworn that he was Rude and Barbarous to the Deceased upon many Occasions, and upon that Account she made grievous Complaints to her Mother, and others … he continued Peremptory in his Denial. At first, indeed, he seem’d to be in Confusion, at the many pressing Instances which were made to extort a Confession from him; but recollecting himself, he denied that he gave the mortal Wound, and said, that he knew nothing at all how she came by her Death … Many of his Friends and Acquaintances came daily to visit him, while he was under Sentence, and I wish they did not divert him too much from his Duty, and that some of them did not under-hand, buoy him up with false Hopes. He hop’d to be sav’d only by the Mercy of God, through the Merits of Jesus Christ, and that he forgave all the World any Injuries done him, as he expected Forgiveness from Almighty God.”

–James Guthrie, the Ordinary of Newgate

After conviction, his behaviour was the most devout and resigned that could be imagined; he exercised himself in every act of devotion, but solemnly declared his perfect innocence with respect to the murder. He was visited by his friends, who earnestly entreated him to make a sincere confession; especially as in his case it was not in the power of the king himself to grant him a pardon. In answer hereto, he freely confessed all his other crimes; but, saying he would not rush into eternity with a lie in his month, again steadily denied the perpetration of the crime of which he had been convicted. The clergyman who attended him urged him to the confession of his guilt, and even refused to administer the sacrament to him on the morning of his execution, on any other terms than those of acknowledging his crime, but nothing could shake his resolution; he still steadily persisted in his innocence.

On his way to the place of execution, he desired to stop at the door of his late master, which being granted, he called for a pint of wine, and having drank a glass of it, he addressed Mr. Payne in the following terms:

“Sir, you are not insensible that I am going to suffer an ignominious death, for a crime of which I declare I am not guilty, as I am to appear before my great Judge in a few moments to answer for all my past sins. I hope you and my good mistress will pray for my poor soul. God bless you, and all your family.”

At the place of execution he behaved in the most composed, devout, and resigned manner; and seemed to possess in the consciousness of innocence. There was a great concourse of spectators to witness his fatal end; to whom he spoke in the following manner: “Good people, I am going to die for a fact I never committed, I wish all mankind well; and as I have prayed for my prosecutors, I hope my sins will be forgiven through the merits of my ever blessed redeemer. I beg you to pray for my departing soul; and as to the fact now die for, I wish I was as free from, all other sins.”

He was hanged at Tyburn on the, 25th of July, 1729, exhibiting no signs of fear to his last moment.

The case of this man is very extraordinary. The evidence against him was at best but circumstantial; and this not supported with such strong corroborative proofs as have occasioned conviction in many other instances. No person was witness to his commission of the murder; nor was there any absolute proof that he did commit it; and from the steady perseverance with which he denied it, under the most awful circumstances, and at the very concluding scene of his life, charity would. tempt one to believe that he was innocent. Ought not this case to afford a lesson of caution to juries how they convict on circumstantial evidence? Is it not better that the guilty should escape, than the innocent be punished? All the decrees of mortals are liable to error; but the time will come when all mists shall be cleared from our sight; and we shall witness to the wisdom of those laws of Providence, which are now inscrutable to mortal eyes. Then shall we see that what appeared inexplicable to us was divinely right; and learn to admire that wisdom which, at present, so much exceeds our finite comprehension. In the mean time, we ought to adore that goodness we cannot comprehend, and rest satisfied with those dispensations, which are eternally and immutably just.

After Cluff’s hanging, his friends published a paper delivered them by the dead man “wherein [Cluff] makes a solemn Declaration that he was innocent of the Murder, and that several material Circumstances given in Evidence against him (which he particularly mentions) were untrue.” (London Journal, Aug. 2, 1729)

* Most notoriously, Jonathan Wild profiteered wildly from this system of privatized law enforcement by extracting a cut both from thieves whom he could threaten to shop for a reward, and from victims whose effects he could recover for a percentage.

** Though such proceedings would normally be handled, as Cluff’s was, by a jury trial, it was for private prosecutions that trial by combat still remained a possibility; one wonders if the accused servant considered taking his chances in the lists. This archaic legal artifact would not be abolished for ninety more years yet — after an 1818 case, Ashford v. Thornton, in which the burly accused in a private appeal successfully sued for the right to fight his wispy accuser in arms rather than in court. The magistrate gave an embarrassed ruling in the brawler’s favor (“however obnoxious I am myself to the trial by battle, it is the mode of trial which we, in our judicial character, are bound to award. We are delivering the law as it is, and not as we wish it to be”), leading the appellant to wisely back out of the case … and leading Parliament to ban private appeals and trial by combat in 1819.

When such an abolition was mooted as a means of soothing the American colonies in the early 1770s, however, conservative Lords decried the innovation as tending to “a system of ministerial despotism” that would remove a failsafe for crime victims — although Edmund Burke did allow that the ugly remnant of judicial combat “was superstitious and barbarous to the last degree.”

Have there been attempts even in 21st century Anglosphere courts to assert the right to trial by combat? Reader, there have.

On this day..