The Statesman.
London, England, 1818-04-17 00:00:00

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Mr. Justice Ilier.x.e.,--- m entirely; e same
Opinion. and in addeinnlin what has beeV said * My 1
Lord, I would say, that this is a mode of proceeding
by appeal (a singular Mode of preceedieg &fidgety)
Which is tint' for the benefit of the Publlio Iset ii the
;Mute, or'suppcsid private tight of the 'parties. It'
Is • private suit, entirely under the cutitruel of/the;
poesy ; and there tetty be reasons why it 'should to.'
fir to be carefully 'stetted. It may take pia
i
WAr-en ecqUittal by the ordinary mode of trial,
neeerly a trial by indictment; and when there has
Wee iedietteut obtained, the elocution is entirely at
Hoe opting of the party ; sad therefore it may be pet
en futile by peeuniary 'commutation, which has fre.
goootly been.the peke. That is no reason, how
'Pier, *fx& trial or the, kind shook) not take place.
Jibs abrigelarity -taloa., soil being at singularity, we
alltettdts'it with 'ith the' iheambrausts and incest.
ell‘leneitie to w *tittle low has subjected it ; and
ono of these incouenieneles is,*: OW if the party
lilted iseititetes the appeal than have tart opinion of
OE cue anti of the guilt of the party, he shalfl
be at liberty, art the 'option of the other partyil
to bit ova life in beiard on the quelitee• The
t a
iftritekby bustle Is a tight on the pert of the Ap-
' sateisin those instances in which by law he
le•escleded ; and It Is supposed that a trial of pre•
sumptions ft ewe' of these grounds. Now, I will only
idyl, the* Opals filet through the whole detail of-facta
lathered°. **a spoor Ibis counter-plea, they do not
its.sityratalPeateettletelektut presumption which bristly'
llilleremi ieletielhbeetteetkiews. As the cue has been'
gelegpest, I have ithibleil, mot front time to time
bave-occerred tie 'ant hi be very strong objections,
egoista thellienueell which the cituuterplea has beew
stated. One of time srhiretions is; as to the state.
meet that While dionikstaeces " appeared and trete'
uttaalfest tedlettra OWN& witnesses:' That is nota
lawdele width goy tedtasught to be alleged. Ido seC
enter keys the subject of the replication to tbe tweeter•
pi* wherever the effect of that part of the record
soy be. With respect to the widow, whether else
itifeadast stall go without a day, that is a point
width the Court does not think it proper now to de-
tide. It is a question upon which I have net come to
may castigates in 'my own mitt& ' Indeed I might
say, that it is for the consideration of the partiee,
whether they would wish to have the opinion of the
Court upon it. I can only say, that et present it
seems to me that we are pet into that situation in
which we are bound by law to give to the Defendant
that which is the Defendant's right, ettless it is askew
from him by Ibis cotroter•plea, namely, the right of
trial by battle.
'Mr. Justice A1i110T.:64 am also of the same**
mien, that the counter.plea in this case Is not lung'.
atilt to oust the Defamdant of his right to the trial
by battle. I consider the appeal in its origin as a
challenge in itself, provided the party appealed
thought fit to accept the challenge, unless in certain
excepted cases. One is the case of the Appellant
being a sweeten, in order that the exceptions might'
stet attend beyond obsolete necessity. But the cases
in which women ass alloWed in be Appellants eve
orgy few. Another is the case of an approvre: fin'
according to the old law, where an approver be-
anies an Appellant be shall not bug the privilege of
battle; because' by appealing, be acknowledge, big
owls guilt, and thereby becentes ifable to the for-
totem's of ' his life at Common Law. Other. eseepted
eases are where the party ii an infant, or above
life age of gist, ; or, as some authors say, above
Ore age of seventy. Theo if the appeal be in it-
self a challenge, provided the Defendant- chooses
td accept It, unless in certain 'excepted case!,
It' Is to be considered whether the Plaintiff has by
Oh counter-plea brought himself within any of the
exceptions. Certainly be has not brought himself
Within any of the exceptions, in favour of age, sex,
orconditinn ; bet it is contended that he has brought
biMself within the exception, which arises out of the
presumption of guilt. Now, referring to the most
abcient writers upon this subject, and particularly to!
Bruton (who has been followed by all the settee-
taXent writers), the rule, as I collect it from that
writer, Is, that the presomption of guilt which is to
oist the Defendant of his trial by battle, is to be
one, so strong and so violent, as not to admit of de
111 Si or contradiction—so strong and so violent, and
so incapable of denial and contradiction, as that the
Ahstices, if they should have thought fit, might award
*motion without any trial at all, although they
aright, if they thought fit, direct a trial by battle.— i
I- don't think it is material to consider whether the
instancisa put by Brecton are or are not of
that violent and strong presumption which does
not admit of denial or contradiction. if it were
necessary to consider that point, I should ter'
taint,/ 'say that they are net, but they were sn i
considered at that time of day ; and it was upon the
ground of their being so considered at that lime of
thy, that they are mentioned as instances of the ex—
ception itself, namely, that of violent presumption
of guilt which admits of no denial. I Cannot find
that the recta stated in this counter-plea (evetrif there
was onir-insuificiency in form of Oleg/tient er etecl
admitting them to hi' will pleaded), afford a pre.
seseption of that kind mentioned by
_Braden, so
strong and so violent as to admit of no contradiction.
Being of that opinion as to the coutster-ples, I think
the Plaintiff has not brought himself within that ex-
ception, and has not done enough to oust the DP..
fendant of that which is by law the ancient {acid until
the Iry shall be altered or amended) and the lawful
mode of trial in this proiteeding,. except in excepted
cases. The consequence is, that the Court are bound
ti award him a trial by battle, unless the Plaintiff be'l
understood to decline accepting the challenge; in.
which ease, it is net for as to say what will be the
ultimate judgment of the Court, until ibe Plaintiff,
shall take the sense of the Court ritereepon, which he,
way he let in to do, and may therefete take time to
consider what course be shall chase to adopt.
Mr. Justice HOLROYD.•-.I am entirely of the saw,
opinion with the rest of Ike Court with respect to,
the law upon the caw, and that' the tenon-plea,'
either nf itself or coupled with the replication. does
act afford 'efficient graved to seat the Defendant 01
the trial by battle. I thick-it denecusery, after the'
discussion that has taken piece, for the Court to en-
quire farther into the law spin lb* subject. Upon
the c..enter-ples this eppeers—that the Prisoner and
Mary Aahferd bad been together during the coarse
of the night, aid that several of the circumstances'
wait ta ato stated to Ws takoo ekes. Item *bid a

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separated, bet:ease the conifer-plea
of het gain to Mary Boner's ' • but it goat Ifry ti
state also, that she returned stone. It sippeers;
therefsre, that though they were together they
bid separated; and there is no .negation that
they ever met again. There is no rircettistance stated
the coenter-plea Inconsistent with detect of the
deceased having come to her death by itecldent—'
either by her being ape* the brink• of the pit, and
basing alipt in accidentally, or from dizziness, et-
rationed by loss of blood, having fellers in. Now that
is . quite consistent with every thing stated in the
counter-plea and the replication. I will not go out
of these to any thing.that might' have appeared upon
the trial ; but it is consistent with the ettenteonilea
and the replication, that all the circumstances 'merit
from which the suspicion arose against the Prisoner,*
might have taken place before she went to Mary But.,
let's, and before they were aspirated. That theta..
was a separation, was proved in. evidence, and "all the
several circumstances alleged against the Prisonei
might h.velaken place before the separition. Why,
then, if that were so, there was no motite or in-'
decemeet to commit the murder. Besides this, there
l another eitcomstance to. be taken into &maidens.
lien, namely, the proof by various witneres of an
alibi, from which presemptio* may be drawn in-
consistent with the supposed fact of his blind en the
spot at the time, and that he was the person who'
committed the murder; Witty murder was committed.'
. Lard Eu.sascreotren added—The priersl law of
the land is, that there shall be a trial by battle, in
cases of appeal, unless the -party bring* himself within
some of the exceptions. The only exception relied
upon in this case is the exception with reference to
the case in Bretton, which relates tea case so clear
as to exclude all doubt, and would not admit of
proof to the contrary, by means whereof the party
never could deny the fact Ailed. The discession
which lies taken place here, mad the consideration
which his been given to the facts alleged, most con.
elusively show, that this is not a case that can admit of
no denial or proof to the contrary; and ender these
circumstances, however obnoxious I am emir to
the trial by battle, it ie the mode of trial which
we, in our judicial character, ore hound to
*ward. We are delivering the law es it is, and not
as we wish it to be, and we must pronounce our
judgment, that the battle shalt take-place, unless the
party reserves for our consideration, whether under
the-circumstances of the case, the Defendant is en,
titled to go without a asi ; which is a point for fur.
they consideration; and on the part of the Appellant,
it shall be considered necessary to advise epon that
point. At preitut we ptentvanat, that there he
trial by battle, unless the Appellant show reaaon
why the Defendant should not depart Without a day.
Mr. GURNEY then craved time to consider of the
propriety ott appl)ina for the judgment of the Court
upon Buis wont It. asked emit Monday.
Lord PAl.Ellll..woltalf,-6-841 it so; Let there he
se entry of Curia advisart twit, entil Moseley nest.
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okomoo.
Pli ICE OF STOCKS ?N$ DAY AT ONE 02,,CLOCK
Mot 'Stork 5 per Ceot Navy RN.
3 per Cons Red.79M Dun& 9s NO p
3 per Cent Cosa..l.Boiel Stork Tr I
Corbels for Ace. SOW Le* Aso. 1104 9.15
4 per Cent 974 i tier BiUs lY 22 P

LONDON:

PRIDAT. APRIL 17, 1818.

The proceedings in the Howse of Commons last
night were again extremely important and curious.
The question of •an increase of income to the Royal
Dukes nes again strongly breeght forward by Mi-
nisters, and warmly debated. Never wantiog in
conning, though deficient in bonoster qualities, the
ready instruments of profligate iatravagance appear-
ed to have resolved upon their usual tactics--to take
the House before the Report
,of the Committee on
the former night against the Doke of CLAKENCE'S
marriage prevision was brought tap, and either get its
vote rescinded, or procure a t►bte in approbation of
all'their remaining propositions for the other Royal
Dukes, in such a manner as might repair the di,.
graceful defeat of the preceding erouiog. The Mem-
bers, however, were at their post, nearly 300 being
again present, and no means were left for CASTLE.
11EAOSI, and hit friend, the sore-galled Lisbon Job-
ber, hot to take the only advantage they could, by
,proceeding io favour of the other Royal Claimants
rrttb thus Mod in forma pauper*, for marriage
provisions ; as if the House, by reducing
the grant to the Doke of CLAIM/Ica, was neves.'
sitated to grant the demands for all the rest of
the Princes. Lord CASTLERIAOII, however, 1r
intimates' this Duke of CLAREWee'S decision fa rat
gird to the sous so reluctantly voted to him, and the
obligations w.blch the acceptance of it would impose'
upon him, namely, to tape the Lady too, the otheel
part of dm bargain. This declaration, which Lord
Carrseaaarsit read from a written eapreasion of the
D.ke's mind, is a memorable picture of a Royal
Duke's sentiments in regard to a point in which al-
most all men feel peculiarly bound by the nicest
principles and appearances of bonoor, and for the
broach which Courts of Law veldom refuse
award heavy damages, and the voice of public sir.
^t se miter fails to lopply a proper stigma. Royal Iligh-
nesse', bermes', le sot feel like otter men. They
ost, as their advocates my, a privileged dam ; and
•boever drives bean's traffic with them must lay their
account with disappoistmests.Thecommuoication wits,
that as the propoeed bigness
his income would not

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,o intended, eitct,
for which it wee pr.
iyal Highness could not take,
the Lady, thoegb the contract has been entered into,
whit se small a pittance might thousand a year in ad
dition to his twenty thousand five hundred, fleshy-
path, the falling timber, and all the well-let sheep-
walks areind it I I This confession of inability on
the part of the amorous Duke was, of course, re-
ceived with teach lighter and cheering kennel{ parts
of the house. It is the proof positive of what was
'impeded front the commencement of this 'idiom
tieesection, savouring so stitch of the politics of
Sehthfield, that his Royal Highness was not so leech
in search of a delicate German wife as of a clumsy sour
of Eat lhb money, and having now faded in his object,
he hes no delicacy in disappointing the Meinfngen
Princess in .her espectatioas. If the young Princess
be not aware Of all the gallant gialities that attach
to the husband promised her, this sudden determine.
tioa of the disinterested Doke will remove bee
noranceef his character, end as she, doubtless, knew
the coodidoes of her espected happiness, it is to be
hoped she will not break her heart et the disappelat•
meat. This is " Love ale Mode," Reader, and the
'sample of Sir Arches philosophical mode of west-
kg the willow because he could cot get the mosey,
may be practised as as antidote to despair by the
Lady as well us the fortune-beating lover. This we
know, that there are few in this country who will
lament much for the failures( this association. The
succession, we have no doubt, is just as safe as if
twenty thousand pounds hattbeen given to secure it.
After the mirth of the noose bed subsided, Lord
CAsnteltAell fired off the other branches of the Fa-
mily upon the House. He moved a grant of 60001.
a year for the Duke of Cameereas, who, whether
he is better acquainted with his intended bride, or
belies the aphorism of the Courier, that hearts have
nothing to do with Royal Marriages, by seeking a.
wife from some principle of affection towards her, is,
certainly better enabled Is- maintain a consort, sad
stands less in need of additional provision from the
. British People for this purpose, for it appears Apt"
by his ample revenues in Hanover es Viceroy, be
is actually able to accuarelete his Parliamentary
prevision in this country! Yet to him the '
House, which we thought was redeeming its
character in attention to economy, was so munifi-
cent as to vote the additional 60001.- e.year, by a
majority of 117 to 93. This greet was much de.
timed, and opposed on many good grounds, which we
need not recapiteiste here. We still kappa, that, in the
progress Of the Bill, the sanuity will be confirmed
to the Duke only in the case of his yetiring from his
office in Wino's% for .theiecnee of that is ample.
A dower for the Durkee: (Princess of Hassi)liicese
she should'survive her hesbend, was mho voted es a
matter of course. • This love speculation will there-
fore answer better, and probably be productive of
many sock blessings.
Nest Mkt the detectible 'abject of the claims of
the Duke and Duchess of CtIWSFRLAND to an in.
vest* of income, and their scheme of matrimonal fe.
Utley, happily for the Public, who paid the funeral
expeoces of the Duchess's still-born child, brought
to perfection without the approbation so much relied
Lefon. Never, we imagined, was the subject of
'princely merits of this kind better settled than by
the decision of Parliament on the same question some
years ego; yet the claims of these Illustrious Per-
sonages were again put forth last night, in a way that
constituted not the least extraordinary part of this
modest proceeding. The demand was first ventured
upon the merits of the Duke, but these, whether
they have increased or not, received so satisfactory
illustration from the comments on either side. The
proposal, however, was so unfavourably received,
that Lord CASTLEUSAGH declared, " that he Would
,not press the question unless he could collect from
the sense of the House more encouraging omens
than, he owned, he now peiceived." Unfortunately
for his Lordship and his Hoye Client, some remarks
of a liberal Member were mistaken for more favour-
able omens than they proved to be, and tire Minis-
ter,
Ihus deceived as to the state of the field, by a
rash charge, lost the action,, which be otherwise
might not have been so foolish as to bring on. The
decision was, 143_1°136 agiikinst the pucuity of tee
Dar. The nest jraigrful -trro#oritioe was for a
dower to the Duchess of CumatatAnts. Lord CAs.
TceeltAtallt who loses to hale two strings to his bow,
doubly armed with his bane and antidote, had
provided himself with a Resolution to this effect in
case of a refusal of the snook, to the Doke. Tbe
plea for the Duchess was more successful. The Howse'
granted her a liberal provision in case of the demise
of her present and third husband. The Princess en-
joys a provision from the King of Patna's, the father
of, her first husband. We cannot see bow it is
4fitereditable for either her or this country, that
should have such a maintenance, sot is it likely that
she will relinquish her Prussian jointure from any.
such idea. An attempt was made by 'Mr. HAm.
DIMWIT to lay before the House some le.
formation from correspondence given him foe
this purpose, upon the conditions of the Princess of
Setae's marriage contract with the Doke of Cum-
SMILAPD, and her treatment at female bead-quer-
tem, but this was prevented on the never-failing pre.
tease of delicacy, though it le obvious that in the
where character is made so
the greatest importance

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lamostazzatmstiaiiiiiitaitosesteszcZSMAll- Tr
Wltiit Se-rammer, toiiht ifonjoillillololf of tir9ifO7Sloo
carted trefore they separated. It appease:by the don suagether lb. abash for
ing toonter-plea, that Ift the course of that eight 1h wird. That is, bh Royal Hi
ii) separated, because the counter-plea stattiarthe fact
the Lady, thoesh the contract I
.L._ 'mime in Mary Boiler's but it toei hat to -

wow etl4oool. pee woes to I emote of secb grants, obese
be adequate to the eapeoliel4t. tbiopeiet et t
it) he eaest at ewe detlyveVadi Jetsam& the treetios.