The Attorney General
moved the order of the day for the further consideration of the report on this bill.
Sir F. Burdett
said, the bill was called a bill for the abolition of trial by battle, but it went also to take away the right of appeal, with which, he conceived, it had nothing whatever to do, any more than with an indictment at common or statute law. In fact, the trial by battle might be considered as completely obsolete. The principle was—"cessante ratione cessat lex; "and he conceived that here, as well as in the cases of trial by ordeal, by fire and water, and by receiving the sacrament, and other cases where the judicia Dei were resorted to in the absence of other means of proof, the law had completely ceased, and might be considered as quite obsolete. These were, in fact all done away; and why should not the trial by battle be considered as done away also? He was aware of the objection which would be made to the appeal, 1098 which he contended ought to be allowed in cases of murder—that it exposed persons to a second trial for the same offence. He was as much an enemy to a second trial generally as any man; but he conceived, that in the case of murder, the appeal ought to be allowed, because it went to check the illegal exercise of the power of the Crown in pardoning criminals. The trial by battle was only resorted to in cases where it was supposed all other mode of proof failed, and then the parties looked to the judicia Dei, or judgment of God. This was, in a great measure, the case in the instance of colonel Ramsay and lord Rae. The court to which the matter was referred, at which the earl-marshal presided, came to the determination of allowing the wager by battle, but it was only on the supposition that no other mode or proof remained. This was in itself an argument to show that the wager of battle was only a sort of ultimum remedium. He confessed that, looking to the present attempt at abolishing the right of appeal, and considering the quarter in which it originated, he could not (though he meant nothing personal whatever to the hon. and learned mover), view it without strong feelings of constitutional jealousy. It was, he conceived, a measure which went to increase the power of the Crown, inasmuch as it went to deprive the subject of an appeal against what might be an illegal and unjust extension of the power of the Crown in pardoning criminals in cases of murder. He was not objecting to the abolition of the second trial in most cases, or to the wager of battle; but he contended, that this right of the subject should not be done away with. In support of it he had some of the highest legal authorities. Lord Holt and Mr. Dunning had said, that it was one of the main pillars of the constitution; and the peers of the revolution, when they objected to the practice of trying any one of their body by commissions appointed by the king, soon afterwards passed a resolution, that this should not at all trench upon the right of appeal. He was also anxious that this right should, be preserved, from the instances which had occurred in the present reign, in which the most scandalous abuses had been made of the power of the Crown in the pardoning of murderers. The hon. and learned member for Knaresborough had said that the clamour on this subject had arisen from the writings of Junius on 1099 the case of the Kennedies. Here certainly was a case where the power of the Crown had been abused. These men had been found guilty of murder, and had been pardoned. The circumstance which led to their pardon was a proof of the force of his argument—that the power of the Crown was often abused in the pardon of criminals. The sister of these men was the mistress of the then lord Sandwich. If she had been honest, her brothers would, have been hanged; but because, she, was the mistress of a person, who had some political influence they were pardoned, after having been found guilty of a foul murder. The hon. baronet next alluded to the case of the man for the murder at Brentford, at the time, when Wilkes was candidate; and also to. the case of a young man, a gardener, who had murdered his master, an old man of eighty years, in both of which cases the criminals were pardoned. Here he conceived was an undue exercise of the assumed power of the Crown. He said, "an assumed power," because by stat. 2 of Edward 3rd the pardon of murderers was expressly prohibited, except in cases of self-defence. If it was absolutely necessary, at that time, to have this law of appeal, it was more so in the present day, when a sort of military government was resorted to; when soldiers were introduced on almost every occasion, instead; of the civil power; or in aid of it when such aid was unnecessary. He could not here omit to notice an anecdote of, then opinion of the noble lord to whom he had alluded: A crowd of persons had collected round a house in Holborn, where it was supposed a number of impressed men were, who had been kidnapped to be sent to America. Application was made for the aid of the military, and the matter was communicated to lord Holt. He asked the; officer who was sent to him, what he would do in case the crowd did not disperse. The answer was, "that he would give orders to fire upon them, for such were the instructions he had received. "Then, sir," replied lord Holt, "if you do, and either you or any of your soldiers should afterwards come before me, depend upon it you will be all hanged." The consequence of this admonition was, that the soldiers were not ordered out, but a party of the police were found sufficient to quell the riot. If lord Holt was in that day, with such opinions as he held upon the law of appeal, 1100 so Jealous of the military power, how much weight ought not those opinions to have at the present moment, when the military system seemed, in many instances, to have superseded the? civil, and when barracks were erected in every part of the country. The law of appeal would, he conceived, be some protection, though perhaps a weak one, against the abuse of such a system. As to the argument that the law of appeal was inconsistent with that principle which went against two trials for the same offence, and that its abolition was connected with that of the wager of battle, he should only say, that no two objections could be more easily obviated. It would be only necessary to bring in a small bill to do away with the wager of battle, and to repeal so much of the statute of Hen 7th as allowed one trial for a particular offence, to be a plea in bar of a second trial for the same offence, leaving the appeal open in cases of murder. In order to have this matter fully discussed, he should move that the bill be recommitted, and he would afterwards move the amendments which were necessary. The hon. baronet then alluded to the case of "Ashford v. Thornton," which was so fully before the public a short time ago, and regretted that the appellant in that case had not common sense enough to pursue his appeal to the last; because then it would be seen whether the law was really considered one which ought to be acted upon or not—whether the chief-justice of the court of King's-bench would have, gone into Tothillfields to see two men beat each other first with cudgels, and afterwards with sand-bags for a whole day. He was sorry the law had not been brought to such a test, as he was convinced the result would be an argument, in favour of what he had asserted namely, that it was one which ought not to beaded upon.
The report was then ordered to be taken into further consideration, and on the motion "That the amendments be now read a second time," sir F. Burden moved, to leave out from the word, "That" to the end of the question, in order to add the words, "That this bill be recommitted."
Mr. Serjeant Copley
said, he understood the hon. baronet's object to be that of preserving the right of appeal, while he agreed in the propriety of; abolishing the trial by battle; but according to his own feelings upon the question, he would 1101 rather that the bill of his hon. and learned friend should be lost altogether, than that an attempt should be made to carry it into effect with the amendment proposed to be made—so objectionable in his view was the right of appeal. The hon. baronet had declared, that the trial by battle was obsolete: this was rather an extraordinary assertion, when it happened so very lately, that it was insisted on in the court of King's-bench, and when the hon. baronet must have known that it never was suggested by the judge or by the counsel upon either side in the course of such proceeding, that the trial by battle was not the law of the land. If the court of King's bench was placed in a ridiculous light by the proceeding, it furnished an additional argument in favour of the bill; for every thing which had a tendency to bring the laws of the country into contempt and disrepute, ought certainly for that reason to be removed. The hon. baronet had cited the authority of lord Holt in support of that law, and certainly a more enlightened man could not be mentioned as a lawyer; but the hon. baronet had omitted to mention, that this opinion of lord Holt's was one on a party question. The hon. baronet should have recollected, that the whole of the authority in this respect did not equally bear him out. There were other authorities which the hon. baronet might have found in the same place where he had discovered this opinion of lord Holt's, and which in fairness he should not have omitted; one was that of lord chief justice Treby, a man as enlightened on the subject as any other who could be named. Yet this lawyer had given his opinion quite in opposition to that which the hon. baronet had mentioned. Another authority was that of as eminent a statesman as any which he could name—a man who had been one of the brightest ornaments of that House—he meant Mr. Fox. That eminent statesman had strongly objected to the law of appeal; but he supposed his was an authority to which the hon. baronet would not be ready to bow. He had expressed himself in favour of the power of the Crown to pardon; he had shown that it was a power held for the benefit of the people, and that they had a claim upon it; but perhaps the hon. baronet had no respect for such authority. Passing that subject, however, he should come to another part of the hon. baronet's speech. The hon. baronet had maintained that the Crown had no 1102 right to pardon for murder, and that the right was abolished by statute. In that he begged leave to differ from him entirely. The very book which he had cited, and the very judge on whose opinion he so much relied, would have informed him other wise. It was difficult to suppose what he could be thinking of when he talked of the common law; according to his description, it was a creature of his own,' and was not to be found in the practice of the country. His whole argument was in fact assumption. The Crown had the prerogative; it might, indeed, like other' prerogatives, be abused; but it was necessary to the ends of justice itself that such a prerogative should exist somewhere. It was now vested in the Crown, and exercised by responsible ministers. If taken from the Crown, where would the hon. baronet have it placed? Was there any civilized country in the world which did not entrust such a power to some public body, and was it not essential to liberty that it should be so entrusted. Suppose it was discovered after condemnation that the party was not guilty, should there not be a power of this kind to appeal to? And if there should, was not the analogy of the other prerogatives in favour of vesting it in the king? But what would the hon. baronet propose to do? He would place it in the hands of a private individual a relation to the party, whose motive was revenge, and who might be farther stimulated by factious views to prosecute. Such was the system which the hon. baronet had eulogized. In the case of the Kennedys, which he would not attempt to justify, for he agreed with the judge in thinking that it was a foul, an atrocious murder, the widow appealed, and the proceedings were commenced in the courts. Lord Ashburton, who was engaged in behalf of the prisoners, recommended a compromise, which the widow refused to accept. "Count out the money, 500 guineas," said lord Ashburton, then Mr. Dunning, "before her, throw them into her lap, and try whether she will refuse you." The sight of the gold was too powerful, the widow yielded, and the appeal was unsuccessful. This was the system' eulogized by the hon. baronet. But if the hon. baronet was favourable to this system, he ought to have stated how much it was limited at present. If them ordered person left a widow, and she did not appeal, no appeal could be made by any other person. The same was the case if§1103 she had married again. If only a daughter survived, no appeal could be made. But there were other objections to the system. When a party was prosecuted for a criminal offence, it was necessary that he should be charged upon oath, and a grand jury must find a bill before he could be put upon his trial; but, in a case of appeal, it was only necessary for the appellant to make affidavit that he believed the party to be guilty. The party was then put upon his trial, without the verdict of a grand jury, or any intervening step. Yet, such was the system which the hon. baronet, an avowed friend to the liberty of the subject, and a declared enemy to all oppression, felt himself called upon to sanction and applaud. The hon. baronet had directed his attention to the; law by which peers were tried; bat if a peer, charged with murder was acquitted by his peers, an appeal might be made against him as the law now stood, and on such appeal he must be brought to trial before a common jury for the offence. He was sure it would be unnecessary for him to enter into any farther detail, in order to show that the amendments contemplated by the hon. baronet ought not to be carried into effect.
Sir F. Burdett
insisted that there were statutes which took away the right of pardoning murder from the Crown, except in the cases he had already specified. He admitted, that if the person was found to be innocent, there ought to be a power to save him vested in the Crown; but that was not pardoning murder; it was preventing the execution of innocence. Though the right of appeal, in its present form, might be liable to many abjections, those objections were susceptible of remedy, and as it constituted come check of advantage to the subject, he could not consent to part with it, merely because there were disadvantages annexed.
§ Mr. C. Tennyson
said, that there was an objection to a part of this bill, which he wished to present to the consideration of the House and of the hon. and learned gentleman with whom it originated. The bill went to prohibit wager of battle not only in writs of right hereafter sued out, but in those now depending. The objection was, that as far as concerned any writs now depending, this prohibition was ex post facto in its nature. If any practical and impending mischief were to be avoided, or any great end of public security to be an- 1104 swered, parliament had sometimes tolerated such a mode of enactment. Bills of attainder and of pains and penalties, were instances, but they were such as be trusted would never recur. Some few other instances, indeed, might be mentioned but none he believed in which, without an ex post facto enactment some actual mischief would not have inevitably occurred, and thus it had: been supposed to be justified by the necessity of the case. However that, might be, it was well known that in writs of right, battle was never practically waged in modem times. It was two hundred and fifty years since such a result had ensued, and if the law continued as it was a thousand years longer, it would not probably ensue again. He would therefore put it to the House and to the hon. and learned attorney-general, whether this was a case in which a fundamental principle of legislation should be sacrificed. The law had stood as it now was ever since the coming in of the Normans, and he would suggest that it would be better to continue its application to the actually defending cases, if indeed there were any, than establish a precedent of the most objectionable and dangerous tendency.
The Attorney General
justified the clause as absolutely necessary. If in the case of Ashford v. Thornton, the appellant had persevered in the trial, by battle, he had no doubt the legislature would have felt it to be their imperious duty at once to have interfered, and to have passed an ex post facto law for preventing so degrading a spectacle taking place, especially as one of the parties must wage battle till death ensued. He was not aware that there was any writ now pending, but it was absolutely necessary, whether that was the case or not, he thought he could not discharge his public duty by omitting a clause to prevent this from being the case. He should be sorry to see the proposition of the hon. baronet established, namely, that the king had no power to grant mercy in cases of murder, because it was absolutely necessary that such power should be vested somewhere; and as his hon. and learned friend had justly observed, that power could be vested no where owe properly than in the head of the government. By the common law that power was vested in the king, and he did not think there was a single statute which took away that power from him. He conceived there was a mistaken, idea of the statute which 1105 the hon. baronet had quoted, and that it had no such meaning as that the king had no power to pardon murderers.
The Attorney General
added, that if the hon. baronet had not alluded to that statute, he must confess his total ignorance of any other taking away the power of the Crown to pardon; he believed—he was sure it did not exist.
Sir F. Burdett
read the words of the statute 2nd Edw. 3rd, c. 2, which expressly provided that the king shall only grant pardons "in cases where the king may do it by his oath.'
Mr. Serjeant Copley
said, that the hon. baronet had declared himself not satisfied as to the law of trial by battle not being obsolete. In reply to that, he would merely state, that the very case of Ash-ford and Thornton showed that it was not obsolete. There the appellce having thrown down his glove, and challenged a trial by battle, one of the counsel declared it to be his opinion, that such a proceeding was obsolete. The late lord chief justice Ellenborough immediately replied, that he could not see how that was the case, the act having never been repealed, and therefore was still a part of the law of the land.
§ The question being put, "That the words proposed to be left out stand part of tile question," the House divided: Ayes, 66: Noes, 4.