The Attorney Generalrose to submit the motion of which he had some days since given notice to that House. The law as it then stood with regard to the Wager of Battle had, as he believed, never before been regularly brought under the consideration of parliament. Indeed, the only consideration which he ever knew to have been bestowed upon the subject, had taken place only when particular circumstances had excited the passions and prejudices of men, as had been particularly exemplified in the last appeal of battle which had been made during the course of the past year. The subject, however, had never undergone a calm and deliberate investigation, and in all human probability would have still remained upon the statute book, had not those circumstances, which would be fresh in the recollection of the House, induced him to direct his immediate attention to the question. Here the hon. and learned gentleman entered into a detailed and luminous history of the origin, progress, and changes that had occurred in the Wager of Battle, and observed, that by the existence of such a law, every individual would have it in his power not only to be the avenger of his wrongs, but the arbiter, and often the unmerciful arbiter, of the life and happiness of others. The Wager of Battle as it then existed was both cruel and absurd, and contrary to every principle of justice. The appeal in cases of murder would be seen to be a most violent outrage upon every law of justice. And for the simplest, yet most satisfactory, of all reasons—namely, that when a party had been once tried and acquitted, he never should undergo the ordeal of a second trial for the same offence. But by the law of Wager of Battle, it could be demanded 416 by dissatisfied or revengeful parties; and so far it tended to prejudice the law of the land, and rendered its most salutary provisions for the public good almost nugatory or abortive. The detail of the operations of so barbarous a law, could not prove of any particular interest to the House. Indeed, its provisions generally, except to the members of that profession to which he had the honour of belonging, were totally unfamiliar; and he only rapidly ran over them, in order the more clearly to demonstrate the propriety—if in an enlightened age any such demonstration could be necessary—of its entire and immediate abolition. Cruelty and absurdity had both marked its progress in every stage, from the false and unjust principle on which it rested, to the spirit of vengeance which it both engendered, and often had gratified. Its various anomalies could be adduced in proof of its absurdity—a sufficient motive for its abolition, even if the more imperious motives of its iniquitous and immoral tendency had not existed to call for its extinction from the statute book. However dry and unentertaining such subjects would seem to many, yet the law of the Wager of Battle loudly called for the interference of the legislature. Various alterations had taken place, from time to time, in that strange and cruel law, although a law, perhaps, in some instances, which would not be found to be entirely unsuited to the practices of the ages in which it had been used. But still, so absurd and cruel had its operation been generally considered, that appeals of murder had fallen into a sort of desuetude for very considerable period. As he had a before stated to the House, his attention had been first particularly drawn to the subject, in consequence of a notorious transaction that could not be very easily forgotten by any honourable member whom he had then the honour of addressing. If the law was to be altered, the appeal itself should be abolished, and the barbarous mode of going through it would necessarily fall with the appeal. With regard to appeals in robbery, little remained to be then stated. Previous to the period of Henry 8th, appeals in robbery had been the principal, if not the only method by which stolen property could be recovered; but since that reign, restitution for stolen goods could be obtained, and usually had been, without the interference of a law so monstrous. Every 417 attempt that bad been made for the improvement of that law, only further tended to display its unspeakable absurdities; and, as a proof of the singularity of its enormity, he should state one of its operations to the House. If a man had, from passion or any other cause, produced an injury to a woman, the last and perhaps the worst that could have befallen her; but still willing to make her all the reparation in his power, offered her himself in marriage, and had been accepted, still the next of kin could enter a prosecution against him, demand his appeal of battle, and eventually perhaps have him prosecuted to death. Here, then, appeared not only the absurdity, but the crying injustice of that law, which that House and the country now wished to see abolished. But the great evil of the Wager of Battle generally had been, that it gave to a vindictive party a power he never should have had, and that, without the possibility of the slightest interference upon the part of the government or the Crown! If a party had been convicted at common law, the Crown, if it perceived sufficient motives for so doing, could have exerted its royal prerogative in the extension of mercy, and issued the royal pardon to a penitent individual. But by the law of Wager by Battle, the Crown and the government were denied the highest attribute they could possibly wish to have enjoyed—that of dealing justice in mercy to all who had endeavoured by contrition to deserve it. In fact, vengeance or avarice were the judges to decide with Wager of Battle; and, under all the circumstances, the trial by appeal could neither be made equitable nor just. The second part of his intended bill related to trial by battle in writs of right; and he was convinced that the absurdity of the practice in this case was so apparent to every member of the House, that it was unnecessary for him to detain them with any further observations. He should therefore conclude with moving, "That leave be given to bring in a bill to abolish Appeals of Murder, Felony, or Mayhem; and Wager of joining Issue and Trial by Battel, in Writs of Right."
§ Mr. Denmansaid, that it would be presumptuous in him to go over the grounds so ably gone over by his hon. and learned friend; he rose, therefore, for no purpose of discussion, but merely to state bow cordially he concurred in every thing that had been said, and to expres a hope 418 that the great reform contemplated would be adopted by the unanimous vote of the House. The appeal of murder, which was proposed to be abolished, was always an appeal from a jury, that decided without prejudice, to one which must of necessity be prejudiced. This would have been particularly the case with the appeal which had suggested this change in the old law, where he was sure an impartial jury could not have been found. The same was the case in the last appeal for the riots in St. George's-fields, where a person was tried at the instance of the widow of the deceased, whose abandonment of the prosecution was purchased by 500l. He seconded the motion most cordially, and hoped that the spirit of the age, which made this reform necessary, would not stop here, but follow up the principle of improvement, in other parts of our criminal administration which cried aloud for revision and reform.
§ Mr. Bernalrose, particularly as a member of that profession to which the hon. and learned attorney-general had proved himself so great an ornament, to thank him for the manly eloquence with which, he had prefaced his motion for leave to bring in a bill to abolish the barbarous law of Wager of Battle; but he begged leave to suggest to him that he believed the right of appeal could be still demanded in cases of treason committed beyond the seas, and if so, that he would also have the right abolished in that as well as in all other cases.
§ Mr. Bernalsaid, he knew it was abolished in this country, but he believed it still extended to treason committed beyond seas.
§ Leave was given to bring in the bill. It was accordingly brought in, and read a first time.