The Life of JAMES CLUFF, a Murderer, in which is contained a concise account of the nature of Appeals
To curb our vicious inclinations and to restrain those passions from the sudden transports of which cruel and irreparable mischiefs are done, is without doubt the best end of all instructions; and for my own part, I cannot help thinking that this very book may contribute as much to this purpose as any other that has been published for a long time. That vices are foul in their nature is certainly true, and that they are fatal in their consequences, those who, without consideration pursue them, feel. There are few who will take time to convince themselves of the first, but no man can be so blind as to mistake the latter after the perusal of these memoirs, in which I have been particularly careful to describe the several roads by which our lusts lead us to destruction; and have fixed up Tyburn as a beacon to warn several men from indulging themselves in sensual pleasures.
This unfortunate person we are now going to give the public an account of was the son of very honest people who kept a public-house in Clare Market. They were careful in sending him to school, and having taught him there to read and write etc., sufficiently to qualify him for business, then put him apprentice to the Swan Tavern near the Tower. There he served his time carefully and with a good character, nor did his parents omit in instructing him in the grounds of the Christian religion, of which having a tolerable understanding he attained a just knowledge, and preserved a tolerable remembrance unto the time of his unhappy death.
After he was out of his time, he served as a drawer at several public houses, and behaved himself civilly and honestly without any reflections either on his temper or his honesty until he came to Mr. Payne's, who kept the Green Lettuce, a public house in High Holborn, where the accident fell out which cost him his life.
It seems there lived with him as a fellow servant, one Mary Green, whom some suggested he had an affection for; but whether that were so or not, did not very clearly appear, but on the contrary it was proved that they had many janglings and quarrels together, in which Cluff had sometimes struck her. However it was, on the 11th of April, 1729, Mary Green being at dinner in a box by herself, Cluff came in and went into the box to her, where he had not continued above four or five minutes before he called to his mistress, who was walking up and down, Madam, pray come here. By this time the maid was dead of a wound in her thigh, which pierced the femoral artery. There was a noise heard before the man himself came out, and the wench was dead before her mistress came in.
However, Cluff was immediately apprehended, and at the ensuing sessions at the Old Bailey he was indicted for the murder of Mary Green, by giving her a mortal wound in the right thigh, of the breadth of one inch, and of the depth of five inches, of which she instantly died. He was a second time indicted upon the coroner's inquest for the said offence, and also a third time upon the Statute of Stabbing. However the evidence not being clear enough to satisfy the jury, on his trial he was acquitted by them all. But this not at all satisfying the relations of the deceased Mary Green, her brother William Green brought an appeal against him, which is a kind of proceeding which has occasioned several popular errors to take rise. Therefore it may not be improper to say something concerning it for the better information of our readers.
Appeals are of two sorts, viz., such as are brought by an innocent person, and such as are brought by an offender confessing himself guilty, who is commonly called an approver. An innocent person's appeal is the party's private action, prosecuting also for the Crown, in respect of the offence against the public, and such a prosecution may be either by writ or by bill. As to the writ of appeal, it is an original issuing out of Chancery and remarkable in the Court of King's Bench only. Bills of Appeal are more common and contain in them the nature both of a writ and a declaration, and they may be received by commissioners of gaol delivery or justices of assize.
Those which are in use at present in capital cases are four, viz., Appeals of Death, of Larceny, of Rape and of Arson. The first is both the most common and that of which we are particularly to speak. It is to be brought by the wife or heir of the person deceased, unless they be guilty of the murder, and then the heir may have an appeal against the wife, or if he be accused the next heir may have it against him. The appellant must be heir general to the deceased, and his heir male (for by Magna Charta a woman cannot have an appeal of death for any but her husband) and in the appeal also it must be set forth how the appellant is heir unto the deceased. As to the time in which an appeal may be brought, it is by the Statute of Gloucester[[86]] restrained within a year and a day from the time of the deed done. There is great nicety in all the proceedings on appeals of death and everything must be set forth with the greatest exactness imaginable. The appellant hath also the liberty of pleading as many pleas, or to speak more properly, to take issue on as many points as he thinks fit. He is tried by a jury, and on his being found guilty, the appellant hath an order for his execution settled by the Court; but when the appellee is acquitted, the appellant is chargeable with damages on such a prosecution, provided there appear to have been no just cause for the commencement thereof.
But to return to the case of Cluff, which led us into this discourse. The evidence at his trial upon the appeal was, as to its substance thus. Mrs. Diana Payne, at the Green Lettuce in Holborn, deposed that the prisoner James Cluff and the deceased Mary Green were both of them her servants; that about a quarter of an hour before Mary Green died, she saw the prisoner carry out a pot of drink; that while she was walking in the tap-house with her child in her arms, she saw Mary Green go down into the cellar and bring up two pints of drink, one for a customer and another for herself, which she carried into a box where she was at dinner; that about four or five minutes before the accident happened, Cluff came in, and went to the box to the deceased, and in about four minutes cried out, Madam, pray come hither; that the witness thereupon went to the door of the box and saw the deceased on her backside on the floor, and the prisoner held her up by the shoulders, while the blood ran from her in a stream; that on seeing her, she said to the prisoner, James, what have you done? To which he answered, Nothing, Madam. Whereupon this evidence enquired whether he had seen her do anything to herself, he replied. No, the deceased at that time neither speaking not stirring, but looking as if she were dead. However, the prisoner at that time said he saw her have a knife in her hand in the cellar, and the witness being prodigiously affrighted called her husband and ran for an apothecary.