2"'' S. N" 39., Sept. 27. '56.] 



NOTES AND QUERIES. 



241 



LONDON. SATURDAY, SEPTEMBER 27. 1856. 



WAGER OF BATTEL. 



" The personal coml^at offeied in bar of an appeal of 

 murder seems to have been admitted as legal some years 

 since, and was only abolished of late by positive statute." 



A reperusal of Sir Walter Scott's Essay on 

 Chivalry^ from the concluding paragraph of which 

 the above extract is made, has induced me to iur 

 quire into the later instances in which Wager of 

 Battel was offered. The two last cases appear to 

 have occurred in the second decade of the present 

 century ; and although tliey seem to have been 

 merely legal-technical affairs, and somewhat dull, 

 it is not a little curious to find that a remnant of 

 the semi-barbarous mode of trial by single com- 

 bat, introduced to this country by William the 

 Conqueror, should have been held lawful so re- 

 cently as the years 1815 and 1817. The case that 

 occurred in tlie former of those years evidently 

 arose from a free exercise of professional cunning ; 

 and as an illustration of the then morality of the 

 Irish bar may be briefly related here. 



A man named Clancij in open day, and in the 

 presence of several lookers-on, murdered a gen- 

 tleman called Brian O'Reilly. A full confession 

 of the fact was obtained from the murderer, 

 and it was signed and sworn to by him. His 

 trial came on at the MuUingar Summer Assizes, 

 1815; and from the nature and fulness of the 

 confession, the prosecuting counsel summoned 

 no witnesses to prove the crime. Shrewdly ob- 

 serving this, Mr. M'^Nally, the prisoner's advo- 

 cate, objected to the confession being received in 

 evidence, and the Court ruled in favour of the 

 objection ; and, inasmuch as the prisoner was 

 actually in charge of the jury, the trial could not 

 be either delayed or postj)oned. Regardless, 

 therefore, of the prosecutor's prayer i'or time 

 to produce witnesses, the judge ordered Clancy to 

 be acquitted. Upon this a brother of the mur- 

 dered gentleman, as next of kin, appealed to the 

 Court of King's Bench, Dublin, within the allotted 

 "year and a day" from the date of the first trial; 

 and after much discussion and many adjourn- 

 ments, Clancy, advised by his counsel, offered to 

 " wage battel" with the appellant — an offer which 

 is described as having caused a strong sensation 

 in court. The matter, however, proceeded no 

 farther. A compromise was effected between the 

 counsel ; and the prisoner pleading guilty, sub- 

 mitted to transportation in order to save his life. 



A clever trick therefore, and the taking ad- 

 vantage of an obsolete statute, caused in this in- 

 stance a "failure of justice." 



Before detailing any particulars of the next 

 ofier to "wage battel," (that of 1817, and which 

 was the last, as it caused the statute to be re- 



pealed), it may be worth while to relate in what 

 the "wager of battel" consisted: and the follow- 

 ing extract, taken from a local newspaper of the 

 period in question, seems correctly to embody all 

 the required information : — 



" According to the barbarous and unrepealed statutes 

 on which Trial by Battel is founded, unless the accuser 

 can counterplead a legal exception, — such as his being a 

 monk, a minor, a citizen of London, &c., — he must either 

 give up his charge against the defendant, and be liable 

 to him in damages, or a day of battle must be appointed. 

 The battle must be in the presence of the Court, in the 

 following form: — At sunrise the parties assemble; the 

 lists are set out bj' the Court ; the accuser and the ac- 

 cused are to be bare-armed, bare-legged, and each armed 

 with a wooden truncheon of an ell long, and a square 

 wooden target. They then take each other's hands, and 

 each swears — the accuser that the accused did kill tlie 

 deceased, and the accused swears that he did not. They 

 then botli swear ' that they tave about them ne bone, ne 

 stone, ne charm of any sort, wherebj' the law of the 

 devil may be exalted, or the law of God depressed.' 

 They then fight it out. If the accused can make good 

 his defence till the stars appear in the evening, it is an 

 acquittal ; but if he is beaten, or cries ' Craven,' the in- 

 famous word of surrender, he is to be hanged." 



With this preface I will now condense, as much 

 as is consistent with clearness, the account of the 

 last offer of "battel :" — Abraham Thornton was 

 tried at the Warwick Assizes, August 8, 1817, for 

 the murder of Mary Ashford. Mr. Justice Hol- 

 royd presided, and the trial lasted the whole day. 

 The evidence against the prisoner, though strong, 

 was entirely circumstantial. His defence was well 

 got up ; and the jury, to the infinite dissatisfac- 

 tion of the people of the locality, acquitted him. 

 This dissatisfaction was so loudly expressed, that 

 the brother of the unfortunate girl was induced 

 to obtain a writ of appeal. Tiiornton conse- 

 qtiently was again taken into custody, and, on 

 November 17, placed at the bar of the Court of 

 King's Bench, in Westminster Hall : two of the 

 presiding judges being Lord Ellenborough and 

 Mr. Justice Bayley. Mr. Reader, as counsel for 

 the prisoner, commenced the proceedings by 

 moving that he "do now plead." By order of tte 

 Court, the record was then read to the prisoner ; 

 it of course charged him with the murder of Mary 

 Ashford, by casting her into a pit of water ; and 

 he was asked " What he pleaded to the charge ?" 

 He at once rose up : his counsel placed in his 

 hands a pair of large horseman's gloves, one of 

 which he immediately put on ; and a paper, from 

 which he read : " My Lords, I am not guilty, and 

 I am ready to defend myself with my body." He 

 then waved the other glove, and flung it into the 

 middle of the court ; where it lay until the close 

 of the day's proceedings, when it was handed up 

 to the care of the officer for the crown. The 

 "gage" having been flung, William Ashford, the 

 appellant, was formally called. He appeared : a 

 mere stripling, of short stature, apparently weak, 

 and about the age of twenty-two years. JVIr. 



