[ANSTHRLD] baronial service awards

tmcd at panix.com tmcd at panix.com
Wed May 9 22:28:44 PDT 2007

Engenulf / "Mike Wyvill" <wyvillmike at hotmail.com> noted:
> http://home.uchicago.edu/~djm2/archives/sent.1995.10/trial.by.combat

The inital problem I saw with that is

    2) In A celebrated case in England in the 1850's a litigant who
    was due to lose a huge case in desperation issued a challenge for
    trial by combat to his opponents and showed up in front of the
    courthouse in full armor at the appointed time.  When the other
    side failed to show up he demanded (and got) a victory by default.
    A reluctant judge concluded that since it never been altered by
    statute, trial by combat was still a valid part of English Common
    Law.  An emergency session of Parliment was called the next week
    to formally outlaw the practice once and for all.

It made my Urban Legend Detector twinge.  If it was so celebrated, why
didn't the writer cite it?  Also, I have a hard time believing that
Parliament would be called into an emergency session just for that.
Wager of battel could only be used in certain cases.  And if anyone
else had tried it, the judge could have stalled for time (the legal
procedures were lengthy) until Parliament could attend to it.

<http://en.wikipedia.org/wiki/Trial_by_combat> says

    Wager of battel remained in two forms of action dear to the
    honour-bound hearts of the aristocracy, however. The first was the
    writ of right, the most direct way at common law of challenging
    someone's right to a piece of real property. The second was the
    criminal appeal, a private criminal prosecution instituted by the
    accuser directly against the accused. It was not, like the
    contemporary appeal, a proceeding in a court of superior
    jurisdiction reviewing the proceedings of a lower court.

    Such a private prosecution was last conducted in the case of
    Ashford v. Thornton in 1818, as recorded in The Newgate
    Calendar. [1] Pronouncing judgement in favour of the accused's
    plea claiming the wager of battel, Justice Bayley of the King's
    Bench said that:

        One of the inconveniences of this procedure is, that the party
        who institutes it must be willing, if required, to stake his
        life in support of his accusation.

    The accusation was quickly withdrawn after this
    judgement. Parliament abolished wager of battel the following
    year, in 1819, and at the same time they also abolished the writ
    of right and criminal appeals.

    [1] <http://www.exclassics.com/newgate/ng574.htm>
    "ABRAHAM THORNTON: Acquitted on a Charge of murdering a Girl, and
    on being rearrested claimed Trial by Battle, April, 1818"

Note that private prosecutions remain in English law.
<http://www.cps.gov.uk/news/factsheets/fs-privatepros.html>, from the
Crown Prosecution Service, says

    The CPS has the right to take over the prosecution and continued
    it; OR to take over the prosecution and discontinue it; OR to
    allow it to continue.

See also <http://www.cps.gov.uk/legal/section1/chapter_h.html>

Danielis Lindecolina
Tim McDaniel; Reply-To: tmcd at panix.com

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