The British Press; or, Morning Literary Advertiser.
London, England, 1818-04-17 00:00:00

lions, in which a degree of certainty, in point of
fact, existed,No as tot:elude doubt, was by battle.
Such a degree of certainty, as the taking in the
sisiasokr, with a bloody' knife, nod the like, did
not exist in the present case. The conseqtreace
was, that the rule applicable to such exceptions
could not take place on this occasion. The noual
trial, applicable to those eases (that was, the trial
Iloj !wile. whether gond or bad,) moo therefore,
according to due course of law, take place; unless
(the accuser having ilioclainsed that mode of trial
by his counter•pleo) the accused was to go alto-
other free. This was a point on which their Lord-
ships would 'not now give on op' . It 'night
hereafter be argued. and they would reserve them-
selves for such
.arginneut. But they thought it
right, lookirig to the authorities that had been
cited, to pronounce, that this was a case, in which,
snider the 'law as it now stood, trial by battle
ought to be awarded.
Mr. Justice BAYLEY was entirely or the same
opinion. and should therefore add very little to
what was said by the Learned Lord. The mode of
proceetliug by appeal was a singular one : not put..
F tor 41 for the benefit of the public, but with a view
to the supposed private right of a party. It was
a private suit, entirely under the control of the
person instiintiug it—and, therefore, there might
be reason why it should be narrowly watched. it
might take place after an acquittal by the ordinary
mode of trial—after a trial by Jury. It was a sys-
tem in which pecuniary commutation might Mite
place, and might indeed be the object in view.—
This was one reason why a trial of this kind was a
singularity in the law—and this being the case, it
must lie taken with all the inconveniences and in-

cumbrance;Which the law attached to it. The
right of trial by battle was the right of the 'Appellee,
except in /hose cases where by law it was ekcluded,
and the existence of a violent presumption of guilt
was one of thole grounds of exclusion. Now,
taking the whole detail of facts i s this counter-
plea, they'cli4 not raise in his mind that violeut
presumption which the low contemplated. As to
whether judrittnt should be given for setting the
Defendant alfbgether free, or a day he appointed
for battle, Ise would not offer any opinion. It Was
for the consideration of the parties whether they
would demand the judgment of the Court ou this
Point. They were now placed in this birtition—
they were bound by 'kw to give this Defendant
what was by law Isis right, namely, the right of trial
by 'tattle.
Mr. Justice Asnorr was also of opinion, that
the counter-plea was net sufficient to oust the Ap-
pellee of his right to wage battle. The appeal was
a challenge, except in those cases fur which the
law lied specially provided—as in that of a woman.
If thee the appeal were in itself a challenge, only
where particular exceptions were made, the fines.
non was, whether the Appellant, by his counter-
plea, had brought himself within those exceptions?
Certainly be did not come within the exception of
age, sex, or condition. But it was said, he had
brought himself within those exceptions, by prov.
ing a violent presumption of guilt. Looking to
Bracton, the must ancieut writer ou this subject,
Ise found, that, to oust the Appellee or his right,
the statement must be so stroog, void the presume-
Lion so violent, as not to admit of denial—so strong
mid so violent indeed, that the Justices might, if
they thought lit, award ettecution, without any
trial at all, Now he could not consider the alle-
gations stated in this costlier-plea—if there even
was no error in its form--admitting all the facts to
he well pleaded—to be so strung and so violent as
to oust the Appellee of his wager of battle. Think-
Mg the Appellant had not done enough to oust the
Appellee of his right, tinder the law, it appeared
to Into that he was entitled to his tutu by battle.
Mr. Justice Doutoen d;d not think the coun-
ter-plea itself, or coupled with the replication, was
sufficient to oust the Appellee from his right.
Lord ELLENDOROUGU said, the general law of
the pawl, in cases of appeal, was trial by battle,
unless the Appellant brought himself within the ex-
ceptions laid down. The facts es pointed out by
Bracton were to be of such a nature that " they
would not admit of proof to the contrary, and could
not he denied or defend-d." Now the facts truth
in the comiter.plea and replication, 'hewed most
conclusively that the present was not a fast of this
kind. Therefore, whatever prejesdice, just or oil-
just, attached to the trial by battle, they, in their
judicial character, odaiiiititering the paw as it was,
must award that trial, unless the Defendant was
allowed, iii judgment, to go without bail.
Mr. GURN EY requested a delay of a day or two,
in order that lie and his Learned Friends might de-
cide ou what step they should next take—and the
Court ordered the business to stand over till Mon-
dsy next.