[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:
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.
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.  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The accusation was quickly withdrawn after this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.
"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>
Tim McDaniel; Reply-To: tmcd at panix.com
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