Lords Sitting of 18 June 1819

WAGER OF BATTLE ABOLITION BILL.
The Lord Chancellor The Lord Chancellor moved, that the House should resolve itself into a committee on the bill for the Abolition of Wager of Battle upon issue joined in a writ of right, and appeals of treason
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murder, &c. With respect, he said, to the first part of this bill, which related to the civil proceeding, he had never heard any doubt expressed of the propriety of repealing the right of waging battle. The only difficulty fell with regard to the total abolition of that part of our law, had reference to the right of appeal and wager of battle in cases that resembled criminal proceedings. This part of our law was very ancient, and their lordships ought not to be required to surrender it without some statement of the causes that induced him to propose this measure. With respect to civil cases, the trial by battle was permitted only in real actions, and even, in these the parties to the action were not suffered to fight in propriâ personâ; they were compelled to confide their interests to champions, on the principle that if one of the parties were slain, the suit must abate. They were, therefore, under the necessity of appointing champions, and these were to fight until one of them used what the law writers called the "horrible word" craven, and according to the result of the battle the right of property was determined. In consequence of the principle adopted by the courts of Scotland of suffering laws to fall into desuetude, the present measure was unnecessary in that part of the kingdom. The learned lord then read a long extract from Mr. Kendal's learned and able work on this subject, giving a detailed account of the proceedings in the Court of Common Pleas, in 1570, in a writ of right, when champions were appointed, and appeared on the ground in the presence of the judges, but the fight did not take place. The names of the champions were Thorne and Naylor; one a brawny thick-set fellow, the other slight in body, but an expert fighter. Thorne seemed disappointed that the fight did not take place, and challenged Naylor "to play with him some half-dozen blows for the amusement of the lord chief justice," but Naylor replied, that "he had come to fight, and not to play." The learned lord thought nothing further was necessary on this point to show the necessity of abolishing the law, in civil cases. With respect to criminal cases, no doubt this law was very ancient, and there were many who were unwilling to give up the right of appeal. In former times, many applications had been made to take away trial by battle, but it was a different thing to abolish trial by battle and trial by appeal; for those

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who wished to take away the trial by battle, only meant to alter the mode of trial by battle. In the case of Allen, who was murdered in St. George's-fields, an attempt was made to take away the trial by battle, and also to abolish the law in the colonies. The House must no doubt be aware, that some very eminent lawyers and judges had expressed themselves strongly in favour of the right of appeal, and even lord Ashburton declared it to be one of the strongest pillars of the constitution.— His opinion of its excellence differed widely from that of this highly distinguished character; for he could not separate the consideration of it from that of trial by battle, and so connected it presented many striking inconsistencies with the whole system of our laws and constitution. Were their lordships aware that, notwithstanding their proud boast that they could be tried for treason, murder, or other felonies, only by their peers in Westminster-hall, yet if any one of them were acquitted by their peers, such noble lord would still be liable to be appealed of treason or murder; and as he would not, in respect of his dignity, be permitted to wage battle, the consequence would be, that he would be tried by an ordinary jury. Two petitions had been presented to the House on this subject, one of which was from the city of London, praying that the right of appeal in criminal cases might not be taken away from the people. The petitioners stated, that the citizens of London could not be compelled to accept of wager of battle. This was true, the citizens of London and of Dublin were so far exempt from the operation of the law; but he thought it impossible to separate wager of battle from the right of appeal, so that the removal of the one must involve the removal of both; and it was for the House to consider, how far it might be, in the present state of society, proper to establish anew the right of appeal. It then became a question, what an appeal was? This question was the more necessary, because some persons entertained a belief that the right of appeal contemplated in the bill was that which was technically called an appeal, namely, a complaint of one judgment to another court. But this was a very erroneous supposition; because this right of appeal, although it had reference to criminal matters, was yet in the nature of a civil proceeding, and might be instituted by the appellor, even although there
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had been no previous criminal proceedings. This the learned lord maintained by reference to the sentiments of many eminent lawyers, whose opinions he read at length. In case of conviction on such a proceeding, the Crown could not grant a pardon; and even in the event of an acquittal for murder, for instance, or other crime on indictment by the Crown, still the widow or heir of the deceased might proceed by appeal against the appellee, while, in the event of an acquittal on an appeal, the king was bound by a plea of this fact, and could not proceed by indictment. The appellor was therefore more favoured by the law than the Crown itself. The learned lord then showed, by reference to several cases, and the opinions of the judges, that the right of wager of battle rested with the appellee, and thence argued, that the right of wager of battle was necessarily connected with the law of appeal. Those persons, therefore, who meant to take away the right of battle, proposed a very great change in the constitution of the country in this respect; for, according to the old law, those who made the appeal were obliged to do so at the hazard of their own lives, and, in many cases, it was very proper that they should do so. It was, he thought, a very great absurdity, that a man who had been acquitted by the unanimous opinion of a grand jury, there appearing on the face of the accusation no sufficient ground for proceeding against him, or by a petty jury, by whom the whole case had been fully and satisfactorily investigated—that this individual should again be put into jeopardy of his life, provided any person standing in a certain degree of relationship to a deceased, or being himself the person injured, thought proper, from motives either of vengeance or of avarice, to proceed against him by way of a civil proceeding. The well-known principle of our law, that no man shall be twice put into jeopardy of his life for the same offence, was in direct opposition to such a mode of procedure. Was it not also a very gross absurdity, that the Crown, in which the power of pardoning offences against the public was invested, should not have the right of pardoning in the case of an appeal, and yet that the appellor, if successful in his appeal, might grant life and liberty for a sum of money? In an indictment at the suit of the Crown, the prosecutor would expose himself to a very

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severe punishment, if he were, in the words of" the Jaw, to compound the felony; and yet, let the prosecutor bring an appeal, if entitled to do so, and he might barter the right of proceeding for any sum within his discretion. Was it fitting that a law containing so many absurdities, and principles so different from those most revered in the general system of our law, should be suffered longer to exist? Indeed, it was surprising how such a law had so long continued a part of our system. The learned lord concluded by moving that the bill be committed.
The motion was agreed to, and the bill went through the committee.