Note 611 — 2. RAPE.

This statute was passed in consequence of a Wager of Battle offered by Abraham Thornton, appealed for the murder of Mary Ashford. The decision of causes by combat was always absurd, and it was certainly full time that it should be abolished; but it is not equally evident that the appeal ought to have been taken away altogether, especially in cases of murder. The preamble of the Act states the proceeding to “have been found to be oppressive;” certainly it was also rare; in above one hundred years there had been only one execution on appeal, and when the case of the Kennedies (see Bigby v. Kennedy, 5 Bur. 2648) is considered, it may fairly be doubted whether some constitutional check ought not to have been retained against the misdirection of the Royal prerogative. See also the case of M‘Quirk for the murder of Mr. Clarke.