THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES WILDV A SONS I XI). (Law Booksel iIKCilLKI I.v.N ARCHWAVlPubllshers ai r, A N , w^ •^ *s ^ < ^ i ^ K -^ *1 V > (.^> : i 1J ^ :^ ^ *\ J i * Vl ^ ^ .H V .^ ts; v ^ s -v . N -X ^ ■ \ > .-,. '£ ^ 1* ■i^ ■jv^b Vt v ^ \ >s J^ v V AN ARGUMENT FOR CONSTRUING LARGELY THE RIGHT OF AN APPELLEE OF MURDER, TO INSIST ON TRIAL BY BATTLE; AND ALSO FOR ABOLISHING APPEALS: 2Hitf> an &$>#ntiriT, CONTAINING A REPORT OF A DEBATE IN THE HOUSE OF COMMONS, ON ABOLISHING APPEAL OF MURDER IN THE BRITISH NORTH AMERICAN COLONIES, &C. &C. By E. A. KENDALL, Esq. F.A.S. " 1 am for taking away the Appeal for Murder entirely ; but I am not for taking it away in part." Charles James Fox. THIRD EDITION; NCLUDING REMARKS ON THE REPLICATION OF THE APPELLEE, ASHFORD V. THORNTON, IN THE KING'S BENCH, JANUARY 24, 1818. ILottfron: Printed by B. R. Howlett, 10, Frith Street, Soho, FOR BALDWIN, CRADOCK, AND JOY, PATERNOSTER ROW ; AND CLARKE AND SONS, PORTUGAL STREET. 1818. ColIe§r i ■ 7V ' FREE DRAWING-SCHOOLS, '/ ' FOR PREPARING YOUTH, OF BOTH SEXES, FOR THE MECHANIC OCCUPATIONS, AND OTHER COMMON EMPLOYMENTS OF LIFE. In a few days will be published, A PROPOSAL For establishing, in London, a new Philanthropical and Patriotic In- stitution, to be called, the Patriotic Metropolitan Colonial Institu- tion for the Assistance of New Settlers in His Majesty's Colonies, and for the Encouragement of new Branches of Colonial Trade ; A PROPOSAL For establishing New and Distinct Colonies, for the Relief of the Half-Casts of India and Mulattoes of the West Indies; A POSTSCRIPT On the Benefits to be derived from establishing Free Drawing- Schools, and on other Means of advancing the National Industry, Numbers, and Greatness; and AN ADDITIONAL POSTSCRIPT, Comprehending a Copy of " A Report of a Committee of Congress, on Colonizing the Free People of Colour of the United Slates." BY E. A. KENDALL, ESQ. F.A.S. This day is published, by Baldwin, Cradock, and Joy, Paternoster Row, In one Volume, 8vo. Price 12s. THE COLONIES, AND THE PRESENT AMERICAN REVOLUTIONS. BY M. DE PRADT, FORMERLY ARCHBISHOP OF MALINES. TRANSLATED FROM THE FRENCH. CONTENTS. Chat. I. Grandeur and Importance of the Inquiry concerning the Colonies. Ancient and Modern State of the Colonies. Chap. II. General View, Geographical, Historical, and Commercial, of all the European Colonies. Portuguese Colonies. Chap. III. Dutch Colonies. Chap. IV. British Colonies. Chap. V. French Co- lonies. Chap. VI. Spanish Colonies. Chap. VII. General View of the Productions and Commerce of the European Colonies. Chap. VIII. Of Colonies in general. Chap. IX. Elementary Principles of the Colonial System. Chap. X. Of Exclusive Commercial Com- panies. Chap. XI. Of the Exclusive Commerce of Mother Coun- tries with their Colonies. Chap. XII. Of Slavery in the Colonies — of St. Domingo. Chap. XIII. Comparison of the Elementary Prin- ciples of the Colonial System with those which have been followed by the Europeans. Chap. XIV. Conduct of the Europeans in re- gard to their Colonies. Chap. XV. Recapitulation of the present State of the Colonial Powers. Chap. XVI. Consequences and Dangers of that State. Chap. XVII. Of the Change of Mother Countries into Colonies, and of Colonies into Mother Countries. Chap. XVIII. Of the Dependence of India, and the Independence of the Colonies. Chap. XIX. Of the Separation, prepared and un- prepared, of the Colonies. Chap. XX. Necessity of a Colonial Congress. Chap. XXI. Can Spain re-conquer and retain her Co- lonies r What ought Spain to do? Chap. XXII. Of the Rights of Europe in the War between Spain and her Colonies. Chap. XXIII. Of the Influence of the Colonies on the Navies of Europe. Chap. XXIV. What ought the inferior Maritime Powers to do, in relation to their Colonics ? Chap. XXV. Plans hitherto proposed for the Colonies. Cn A i'. X XVI. A Plan proposed for the Colonies. Chap. XXVII. Benefits, Losses, and Compensations in the Plan for the Co- lonies. Chap. XXyill. Particular Considerations. Chap. XXIX. Of the British Empire in India, and its Duration. Chap. XXX. What will become of the United States of America? Chap. XXXI. Of the Necessity of forming Colonial Establishments in Europe. ADVERTISEMENT TO THE THIRD EDITION. SINCE the appearance of the preceding- edition, the Court of King's Bench has heard the Replication of the Appellee (Ashford against Thornton) to the Counterplea of the Appellor*, in which, after protesting that the Counterplea is insufficient, and that the Appellee is " not under any necessity, nor in anywise bound to answer the same," a statement is made of alleged facts, in rebutment of the " violent presumptions and strong proofs" alleged in the Counterplea. For- bearing, as hitherto, from all observation on the merits of this particular case of Appeal of Mur- der — it is only necessary, here, to take notice of what relates to the grounds assumed by the Ap- pellor and Appellee respectively, with the view of observing the bearings of the law, and the future * See within pages xviii and 1U8. a VI decision of the Court, the following; extracts from the Replication are all that is necessary for our purpose : — " And the said Abraham Thornton saith, that he the said Abraham Thornton, notwithstanding any thing by the said Will. am Ashford, in the said (Jounterpl; a alleged, ought to be admitted to Wage Battle in this Appeal with him the said William Ashford; because, protesting that the said Counter- plea is insiilhcieut, and that he the said Abraham Thornton is not under any necessity, or in anywise bound, by the law of the land, to answer the same; nevertheless, tor replication to the said counterplea in this behalf, the said Abraham i hornton saith, that before and at the time of the issuing of the Writ of Appeal of him the said William Ashford, in this -uit, there were and slid are the violent and strong presumptions and proofs following, that he the said Abraham Thornton was not and is not guilty of the felony and murder aforesaid, in the said Writ of Appeal and count charged and alleged against him; that is to say, Sec. * * * * * And so the said Abraham Thornton saith, that the several facts and circumstances in this replication set forth stronger and more violent presumptions, and are the stronger proof that be the said Abraham Thornton is not guilty of the felony and murder whereof he is appealed as aforesaid, than the said pre- sumptions and proofs in the saiii counterplea, set forth, that he the said Abraham Thornton is guill\ of the felony and murder whereof lit; is so appealed as aforesaid ; and this he the said Abraham Thornton is ready to verify: wherefore lie prays judgment, and that he may be admitted to wage Battle in this Appeal with him the said William Ashford, &c." The i.r-t remark that is now to he made, is this, That by the tenor of the Counterplea and Re- VII plication now put in, the Court of Ring's Bench is called upon to decide the fate of the prisoner according to its own view of the probabilities or im- probabilities of his !»• 1 1 i 1 1 ; — a proceeding abhorrent in its principle to the whole fabric of English criminal jurisprudence, and at variance with the ancient and legitimate practice under Appeals ; and to which it is impossible to believe that the Court will sutler itself to be compelled. If the extreme length of the two papers referred to, as well as the Author's uniform desire to discuss the law of the case entirely abstracted from the facts of the particular transaction before the public, did not concur to prevent their insertion in this place, it would be seen on what a variety of facts, topographical and other, it is thus at- tempted to draw from the Court an opinion, and on that opinion a sentence; facts concerning which the Court will never receive the statements and affidavits of either party as evidence, or admit that it possesses any means or competence to come to any conclusion whatever*. The * The reader must refer, for himself, to the Counterplea and Replication, and observe the accounts of miles, furlougs and Vlll Court, by the opposite statements of the parties, must be placed in the very situation contem- plated by the true law, in Appeals — that of being unable to see its way — and therefore left with no alternative but to award Battle, that the two ad- versaries may fight it out. But (agreeably with what is insisted on, in the the ensuing pages) such is the contradiction of modern ideas, to those on which Appeals are founded ; and such the reversal of the circum- stances and positions belonging to their prosecu- tion, that (with great deference, and with no feeling of disrespect toward the Learned Counsel engaged, be it said) the tenor, as well of the Re- plication as of the Counterplea, is in direct hos- tility to the object; or, at least, the parties, re- yards, strait roads and crooked paths, in Warwickshire, and all the interminable controversy concerning "country clocks," &c. and ask himself, in the behalf of common sense, how these things can be brought to issue by the Court of King's Bench, sitting in Westminster Hall 1 How can the Court form any opinion on the matter, or ascertain more than the single fact, that there arc assertions on the oue side, and denials on the other, between the Appellor and Appellee? IX spectively speaking in each, are made to say, exactly that which each ought not to say. The Counterplea, when it rests the accusation against the Appellee upon " violent presumption," lays the very ground upon which Battle may be claimed to be awarded ; and the Replication, by rebutting the presumption of guilt, should have for its object, to pray, that Battle should not be awarded — that the Appellee should not be obliged to give gage of Battle — but that the Appeal should be dismissed ! To see an Appellee solicit- ing to be " permitted to wage Battle," is a little perplexing. This is the very prayer of the Appellor. The Appellee, in his reply, should either (1) confess himself guilty ; or (2) plead " not guilty," and give gage of Battle; or (3) repel the " violent presumption" of guilt, and pray the Court to dismiss the Appeal. The suit of Battle is on the side of the Appellor; the hardship of Battle is on that of the Appellee. The Appellee's right to Trial by Battle, exists only as his means of defence against an Appeal, when that Appeal is founded on violent " presumption" of guilt. It is to be expected that these latter remarks V will be treated with very little attention, and even with entire contempt. It seems to be the modern understanding of the law, that a man may appeal the first stranger he meets, in turning the corner of a street, and, without rhyme or reason, compel the Court to award him Battle against him; but that if, on the other hand, he can show a " vio- lent presumption of guilt," then he may take an easier course, and procure his victim to be hanged by the voice of a Jury, and even by that of a second Jury, in defiance of the acquittal of a first! This, it should seem, is actually believed to be the criminal law of England ; and upon such a tenure, it is thought, the subject holds his liberty and life! The Courts, it is imagined, are obliged to allow the Appeal, of right, and without inquiry into its merits, and without au- thority to relievean Appellee againstwhom thereis even no " presumption*' of guilt, save in the mind, or in the words of the Appellor! That it is so thought is evident, or " violent presumption of guilt," which is the only reason for allowing an Appeal, would never be offered as a reason for ousting the Battle. XI To those, however, who shall bestow a perusal on the Argument which follows, and on the pas- sages from early writers which it adduces, the question will appear in a different light. In par- ticular, the reader is earnestly requested to con- sider some observations of Beaumanoir, in his Continues de Beauvoisis, cited at page 187. From those observations, combined with others, also cited or referred to, it will surely appear, that three things are within the power of the Court, accordingly as the complaint of the Appel- lee shall assume one of three complexions ; and the inquiry now suggested is of the more imme- diate value, as it will, perhaps, (though this is thrown out for examination only) point out the means of escaping the difficulties which are sup- posed to attend the disposal of the existing case of Appeal, and especially the means of getting rid of the Trial by Battle. Jt is obvious that an Appeal may be made under each of the three descriptions of circum- stances that follow : — 1. With little or no presumption of guilt. XII II. With " violent presumption" of guilt. III. With direct proof of guilt. It is equally obvious from reason, and it will be found equally obvious from books, that the Courts are competent to each of the three fol- lowing courses of proceeding, severally adapted to Appeals under the three varieties of circum- stances mentioned : — I. To dismiss an Appeal which is founded upon little or no presumption of guilt. II. To award Battle upon an Appeal which is founded on " violent presumption" of guilt, but upon " violent presumption" only. III. To SEND AN APPEAL TO A GRAND JURY, where there is direct evidence of guilt. The Author will not lengthen the present ob- servations, by citing again the various quotations XI11 contained in, or appended to, his Argument, on which he relies for maintaining this doctrine, nor by entering, in this place, into a new Argument, supplementary to his original one; but content himself with the suggesting three subjoined heads of inquiry. I. Whether the subject is not protected by Magna Carta from all consequences of an Appeal supported by the simple accusation of the Appel- lor, and where no "violent presumption'' of guilt is shown to exist*? and, II. Whether, if an Appellor desires a Trial by Jury, and shows the Court that there exists direct evidence of guilt, such as is fit for the con- sideration of a Jury, it is not to a GRAND JURY that he should be sent for his remedy ? III. Whether, when an Appeal is thus sent to ,i Grand Jury, it does not lose all the charac- teristics of a private suit, as to power of pardon in the Crown, &c. See within, page 128, note. XIV The Author is prepared to support the affirma- tives of these questions, but is obliged to consult both his own want of leisure, and the patience of the Reader; and therefore dismisses this sheet with an earnest hope, both that the real state of the law will be fully investigated in one quarter; and that such as it really is, it will be wholly abrogated in another. London, January 26th, 1813. ADVERTISEMENT TO THE SECOND EDITION. UNDER the existing- law of the kingdom, there are several offences, which, though, at this day, they are regarded as public wrongs, and are therefore punishable, at the suit of the Crown, upon prosecution by Indictment, are also, upon authority of ancient custom and ancient statutes, regarded as private wrongs also, and are there- fore punishable, at the suit of the Subject, upon prosecution by Appeal, or summons. By a peculiarity, which has grown out of the gradual change of our laws, from their ancient to their modem state, and out of the necessity of tempo rizing with the habits and prejudices of the people, a very partial exception, in tb^oasp of Murder only, and under very arbitrary circumstances, has been created, by Statute, to the universal maxim of the admirable Common Law of England, That no man is to be brought into jeopardy of his life more than once for the same offence ; for, in these XVI cases, a man may be tried again, at the suit of a subject, even after an acquittal at the the suit of the Crown. On the other hand, it is a part of the same provision of law, that in the generality of instances, the Appeal may be tried either by Jury or by Battle. The whole proceeding is of ancient and bar- barous institution ; but the change of manners, united with the oblivion of sound principles, has wrought this unfortunate issue, That while the public sentiment has become strong against the Trial by Battle, it views with favour the more unreasonable proceeding of an Appeal, after a trial, and even after an acquittal, upon Indictment! Thus, in an Appeal of Murder, at present pending in the Court of King's Bench, the Appellee having called for Trial by Battle, the Counsel for the Appellor is reported to have addressed these words to the Bench : — " My Lord, I did not expect, that at this time of day, this sort of demand would have been made. The Trial by Battle is an obsolete practice, &c. # " In truth, See the newspaper reports of the proceedings in the Court of King's Bench, Ashford v. Thornton, Nov. 17, 1817. xvu the Trial by Battle, though not less lawful than Appeal, lias long fallen into disuse, while the Appeal has maintained its ground, in all its baleful vigour. So lately as within the latter half of the preceding century, several Appeals of Murder have been prosecuted, and several (as is possible) innocent victims have fallen beneath their weight; while the Trial by Battle has been so long neglected, that it is believed to be more than two centuries since a Judicial Combat was fought. Upon occasion of more than one recent Ap- peal of Murder, the popular feeling has appeared to be universal upon the side of the modern er- roneous views of the case. In common with the Counsel for the Appeal, the whole country has evinced a disposition to refuse Trial by Battle, but to support the practice of Appeal. It is probable that in the ensuing session of Parliament some step, in relation to Appeals, will be proposed ; and public opinion has too much influence upon all our affairs, to be safely left on the wrong side upon any. Parliament has repeatedly resisted pvery effort to procure an alteration of the law, XV1I1 either as to Battle or to Appeals ; and no longer ago than within forty years, two attempts were unsuccessfully made, in the House of Commons, to procure the Abolition of Appeals of Murder. Even in our Courts of Law, (where, on the subject of Appeals, the most exception- able proceedings have been had) a decided dis- position has so often manifested itself, to assist, rather than to defeat, the barbarity of a second prosecution, obtained by the misuse of THE RIGHT. Under these circumstances, the first edition of this Argument was hastily given to the public*, with more solidity, however,on the side of its reason, than on that of its law ; a defect at which the Au- thor is the less concerned, because law-reading is a pursuit wholly foreign to his usual employments. Since the printing of that edition, an increased seriousness has been given to the question, by the tenor of the counter-plea of the Appellor, en- tered in a case already alluded to; a counter- plea which, if admitted, will go to aggravate, T On the 21st of November last. XIX to a degree even yet unheard of, the offensiveness of the proceedings under Writs of Appeal. The Author, having had his attention drawn to the subject, has not been able to resist the tempta- tion to fortify his opinions by facts and authori- ties; and thus, with somewhat better preparation, and, as he persuades himself, with an increased urgency for public inquiry, to send this revised and enlarged copy of his Argument to the press. The importance of the whole matter, to.the liberty and life of every subject, to the political interests of the nation, to the abstract notion of right, to the theory of public justice, to the character of British laws and society, to the sanctity of Trial by Jury, and to the true completion and maintenance of the Constitution ; the evident absence of public information, and the apparent danger of the worst results; are apologies for any effort, however feeble, to disseminate juster views of its history and bearings. All, that upon the present occasion, has hi- therto appeared in print, (the preceding edition of this Argument excepted) has had the fatal aim which it is the purpose of these pages to XX deprecate. Many correspondents of the several newspapers have exerted themselves to suggest what they conceive to be the means of obstruct- ing the Trial by Battle, but none have betrayed a wish to get rid of the Appeal*. And the Editors themselves, of those papers, have either been silent, or have followed the sentiments of the vulgar, instead of applying themselves to the unpopular task of attempting their correction. On the part of the whole public, in fine, a wil- lingness to abolish by law the Trial by Battle, is manifested strongly enough : but the subject of fear is, the prevalence of an equal willingness to preserve the practice of Appeal. The observations and facts that follow are too imperfect and incomplete to answer any other pur- pose than that to which is presumed they are really- adequate — the purpose of demonstrating the ne- cessity of further reflection and inquiry. The Author anticipates, without anxiety, the exposure of many technical errors, in what he has pro- * An exception, however, is to be made, in favour of the writer of a letter which appeared in the Sun of the 21st. of November. XXI duced, nor can even the proof of large share of ignorance of the facts of the subject, be an im- putation upon him, nor upon any one, seeing the scanty acquaintance with it that lias been hitherto possessed, by the most eminent law- yers, historians, and statesmen. From every intelligent reader, but particularly from those to whom it belongs to enlighten the public mind, or to direct the public councils, an earnest exami- nation of the merits of the case is demanded; and this must be performed, not witli a delusive reliance on celebrated names, either in law, history, or philosophy, but by an eager search for, and patient deciphering of, original writers, and by a fearless trial of the weight of hardy as- sertions and of venerable dogmas. We must lay aside, on this occasion, the works of Montesquieu, Robertson, Blackstone, and Henry, and other the belles-let I res writers on law and legislation *, * It is to be regretted, that in such works as the modern edition of Sir Hale's History of the Common Law, (8vo. 1791) the student should he misled, in the notes, by lazy extracts from Henry, Blackstone, &c. instead of being laught to dig for the true ore of learning in original writers. At p. 180, vol. f, of the work just mentioned, we find (for example) a long quota- tion from Henry, heginning with the continually-repeated mis- C xxn and even the " modern sentences" of the Courts, and go up to the real sources of in- struction ; taking our law from less questionable expositors*, and our reason from new medita- reprcsentation of the origin of Trial of Battle : " The Judicial Combat, or Duel, though it had long been established in France and Normandy, and other countries on the Continent, was first introduced into England by the Normans, &c." Writers of compilations are infinitely mischievous, when, by the false appearance of completeness, they seduce the learner to believe that he has nothing more to seek ; they are still, and bevond description worse, when, as too commonly happens, they falsify, at every step, the story which they undertake to tell. The true friend of learning will think, that there is a more useful, though less ambitious mode of employing his labours ; namelv, in promoting, by all the means that suggest themselves, the extended recurrence to primary sources — to books of the earliest writers — in attempting to render the meaning of whom, and especially in combining the texts of any two, he will himself tremble for his own perpetual mistakes and misappre- hensions. To every student, therefore, he will say, Go, and read them for yourself, and trust to no man's rendering, nor even to his transcription. * Many of these are continental writers. Robertson well observes, " The state of government, in all the nations of Europe, having been nearly the same during several ages, nothing can tend more to illustrate the progress of the English constitution, than a careful inquiry into the laws and customs of the Kingdoms on the continent. This source of information iias been too much neglected by English antiquarians and law- yers. Filled with admiration of the happy constitution now xxm tions of our own, released from every fetter of traditionary prejudice, and purified from every mist of passion and misconception. The question before us presents itself in two shapes; the one judicial, and the other political; the one regarding- our Law, and the other re- garding our Constitution: and, to the indus- trious, the courageous, and the temperate in- quirers that have been supposed, it is presumed that the following propositions, severally illus- trating it under this two-fold aspect, will ap- established in Great Britain, they have been more attentive to its forms and principles, than to the condition ami ideas of remote times, which, in almost every particidar, differ from the present 1 . While engaged in perusing the laws, charters, and early historians of the continental kingdoms, I have been often led to think, that an attempt to illustrate the progress of the English jurisprudence and policy, by a comparison with those of other kingdoms in a similar situation, would be of great uti- lity, and might throw much light on some points which are now obscure, ;ind decide others which have long been contra- verted." Proofs and Illustrations, I list. Charles V, vol 1, note iliv. i Here is an useful hint for those who t ilk of restoring to the people their ancient constitution, rights. &c ; , is punishable as homicide, if death ensues. " So, if death do not ensue, the engagement was punished by censure in the Star-chamber, and the party shall be fined and imprisoned, and bound to his good behaviour. 3 Inst. 157, 8. " So, the challenge was punishable in the Star-chamber. 3 Inst. 158. " And it will be a breach of the peace, if it be made by word, message, or writing. 3 Inst. 158. " So, if a sheriff, justice of peace, constable, or other peace officer, see a duel, or affray, he ought to endeavour to part, and apprehend the parties, otherwise he shall be fined and imprisoned. Ibid. " So, if he prays assistance of any who are present, and they refuse, they shall be fined and imprisoned. Ibid. " So, every by-stander, though he be not an officer, may XXV II. That Unlawful Duels are those which are fought without due authority of the law, and formal award of His Majesty's Courts ; and that Lawful Duels are those which are fought with authority, and under formal award # . III. That all Duels are for the termination of Quarrels; that all quarrels relate either to per- sonal injuries or to claims of property ; and that the law contemplates the practice of solemn Duels, for the termination of quarrels of both classes. endeavour to part them, and shall have a remedy, by action, if he he struck or hurt in his endeavour. Ibid. " If any be killed, or thrown down as dead, in such affray, every by-stander ought to endeavour the apprehending of the offender, otherwise he shall be fined and imprisoned. Ibid." * These are the Duels opposed by the author of the " Anti- Duello,'" a pamphlet printed in the year 1G32, apparently on occasion of the Battle awarded in the preceding year, in the Court of Chivalry, on an Appeal of Treason, by Lord Ilea, against Mr. Ramsay. From the title alone, the reader might suppo>e il directed against " unlawful," or ordinary Duels, as was the case with the French pamphlet from which it is borrowed: "Anti-Duel; on, Discours pour l'Abolition des Duel>: coutenant deux Remonstrances; l'une a la Noblesse, recuedle des derniers propos du Sieur de Balagny ; l'autre a sa Majeste." Paris, 1612. The title has also an allusion to Mr. Seidell's " Duello." XXVI IV. That the practice of Duels, under the sanction of law, was the expedient of a rude age, and is to he justified only by the existence of an imperfect state of society. V. That the perpetuation of Duels in the law of England, is to be attributed only to the dif- ficulty of abolishing ancient and popular institu- tions, and to the popular prejudices which have sustained this institution in particular. VI. That the process for obtaining from the Courts of Law an award of Duel is denominated an Appeal; an Appeal or Call, not to the Courts, but of an alleged offender. VII. That in their original institution, Appeals were only an alternative, or one of the modes of obtaining justice for wrongs; the person al- leging himself to be wronged having his choice, either to appeal the offender to a Duel, or to leave the offence to public justice. VIII. That the use of Appeals for obtaining XXVI 1 Second Criminal Trials, is an abuse of the ancient process, and a fragrant violation of the general principles of English jurisprudence; and has no foundation but in the letter of a statute of Henry VII, passed for a very different purpose, and under circumstances which forbade the re- sort to abstract right. IX. That the use of Appeals for procuring second criminal trials is only one of many ex- isting departures from their original design. X. That Appeals are vicious from their principle, and vicious from the abuse of their principle. XI. That they have no claim to protection as parts of our administration of justice. XII. That they are equally destitute of re- commendation as pretended parts or supports of our Constitution; and, XIII. That Dull, or Trial by Battle, is essen- XXV111 tial to the due administration of justice under the barbarous law of Appeal ; that it would be a most fatal mistake to attempt the support of the process of Appeal, and yet remove the Duel, or Trial by Battle; that in the whole matter we have an ancient total, of which we ought not to take the parts separately ; that we must not ma- nufacture, out of a barbarous ancient proced- ing, something more barbarous still, of modern invention ; and that we must not permit, by any oblique course, the adoption of a rule, such as, presenting itself directly and distinctly, we should cast from us with scorn and resentment. In addition to the detail of these principles, let us add a supplication, that the apologist for for Trial by Battle, or that which constitutes the very essence of the process of Appeal, may not be mistaken for an advocate, either for Trial by Battle, in general, or for its accept- ance and performance on any particular occasion. But to maintain the Trial by Battle, appears to be, at the present time, the only mode of arrest- ing an Appeal. Let the King's Courts, then, tell XXIX Appellors who come before them, that they have been mistakenly advised; that they have igno- rantly asked for Battle; that they have no alter- native, but to abide by the challenge which they have uttered, and the pledges which they have given, or to withdraw from the suit, with the least possible damage which the case Avill allow; and let Parliament abolish the process of Appeal, or at least so modify the process of Appeal of Murder, as to prevent its application to the purpose of second criminal trials. Let us, at least, have one law, and one true and general law, for one offence, and for general punishment. This will remove one enormous evil, though it will leave others, more enormous still, behind. There can, indeed, be little reason to fear, that in any event, this modified expectation will not be fulfilled by Parliament: the judicial question is entirely simple; the constitutional one may have some intricacy. It may be thought to present a choice of evils ; though the choice ought to be easily made. As to the judicial question, the prevention of Second Criminal Trials, whatever d XXX profundity it may seem to have to the country, it will assuredly present none to Parliament. No Member of either House will stand up in his place, and say, That Second Criminal Trials ARE TO BE ENDURED*. For the Author of this sketch, he will be well content to stop at what is now done ; that is, at the glimpse and threshold of the facts, still has- tily and imperfectly drawn out. But, should the public entertainment of the question appear to render further information necessary, he will H It is worthy of remark, how many absurdities are com- monly afloat in society, in the intervals of the sittings of Par- liament, and which vanish as soon as its meeting takes place. It affords a strong contrast, to observe, how small is the degree of instruction which the public derive from the whole labours of the political press, for the entire year, when the amount of this is placed against that which the same public derives from the re- ports of the debates in Parliament for the few months of its session. In Parliament, the justness and depth of thinking, and the extent of political learning and information, which so often mark the speeches of members of either house, call for the highest admiration. In the debates of the late session, we may particularize the speech of the Earl of Lau- derdale on Sinecures ; that of Lord Castlereagh on the Poor- Lnws ; and that of the Marquess Wellesley on Parliamentary Reform. XXXI resume his task, humbly tendering the small contributions of which he is capable, to place in their true light its history, law and policy, and to rid, at last, the Laws and Constitution of England of the foul blot of Appeal. London, Jauuarv 10, lT.lo. ERRATA. At p. 94, 1. 14, for " make him acknowledge it," read " make it manifest." p. 253, note,/or " constitution/' read " constitutions." XXIX Appellors "who come before them, that they have been mistakenly advised; that they have igno- rantly asked for Battle; that they have no alter- native, but to abide by the challenge which they have uttered, and the pledges which they have given, or to withdraw from the suit, with the least possible damage which the case will allow ; and let Parliament abolish the process of Appeal, or at least so modify the process of Appeal of Murder, as to prevent its application to the purpose of second criminal trials. Let us, at least, have one law, and one true and general law, for one offence, and for general punishment. This will remove one enormous evil, though it will leave others, more enormous still, behind. There can, indeed, be little reason to fear, that in any event, this modified expectation will not be fulfilled by Parliament : the judicial question is entirely simple; the constitutional one may have some intricacy. It may be thought to present a choice of evils ; though tin 1 choice ought to be easily made. As to the judicial question, the prevention of Second Criminal Trials, whatever d XXX profundity it may seem to have to the country, it will assuredly present none to Parliament. No Member of either House will stand up in his place, and say, That Second Criminal Trials ARE TO BE ENDURED*. For the Author of this sketch, he will be well content to stop at what is now done ; that is, at the glimpse and threshold of the facts, still has- tily and imperfectly drawn out. But, should the public entertainment of the question appear to render further information necessary, he will * It is worthy of remark, how many absurdities are com- monly afloat in society, in the intervals of the sittings of Par- liament, and which vanish as soon as its meeting takes place. It affords a strong contrast, to observe, how small is the degree of instruction which the public derive from the whole labours of the political press, for the entire year, when the amount of this is placed against that which the same public derives from the re- ports of the debates in Parliament for the few months of it* session. In Parliament, the justness and depth of thinking, and the extent of political learning and information, which so often mark the speeches of members of either house, call for the highest admiration. In the debates of the late session, we may particularize the speech of the Earl of Lau- derdale on Sinecures ; that of Lord Castlereagh on the Poor- Laws ; and that of the Marquess Wellesley on Parliamentary Reform. XXXI resume his task, humbly tendering the small contributions of which he is capable, to place in their true light its history, law and policy, and to rid, at last, the Laws and Constitution of England of the foul blot of Appeal. London, January 19, 181ft. ERRATA. At p. 94, 1. 14, for " make him acknowledge it," read " make- it manifest." p. 253, note, /or " constitution," read " constitutions." AN ARGUMENT, &c. &c. 1. IT is an universal maxim of the Common Law of England, that no man is to be put into jeopardy of his life more than once, upon one and the same imputation of guilt. In civil causes, the plaintiff, as well as the defendant, may apply for a new trial. In criminal causes; a single trial is rinal ; and the policy of this rule of law is obvious. The quieting of all legal contro- versies is the first object in view, and a regard for the peace and comfort and personal liberty of individuals is the second. In the decision of every suit, one of the parties must be foiled. In questions of property, a renewed attempt at success, on the side of either party, is attended with less inconvenience ; but in criminal ones, repeated efforts against the life, liberty and repu- tation of the subject, are not to be endured. The matter at issue, therefore, is put, at once, into the hands of " God and the country." Human evidence and human judgment are resorted to for the discovery of the truth ; the divine aid is B implored and confided in ; and the verdict of the Jurors (thus presumed to be assisted both by earth and heaven) is conclusive. " God and the country" have been appealed to; public justice is satisfied ; the accused has submitted to his ordeal : and the decision, be it what it may, is final. Various views (without impeachment of our faith or of our piety) may be taken of the effect of the appeal to " God ;" but if we believe, that hu- manly speaking, the verdict of a Jury is not infal- lible; that morally, it cannot always be conform- able with the truth; still, every argument of reason and public policy require, that legally, it should be held to be the truth. In appeal- ing to that verdict, every prescribed human effort has been made ; the investigation of cri- minal charges must stop somewhere; and the policy of the law, as intimated before, much rather pursues the quieting of men's minds, and the general administration of justice, and over- awing of crimes, than the destruction of any par- ticular presumed offender. A further objection to a second trial in criminal cases (though to be more expressly considered below) cannot be omitted here. It is obvious, that upon every principle of justice, if the . prosecutor, after a verdict of acquittal, were allowed to demand a second trial, the prosecuted, after a verdict of condemnation, must be allowed to demand it also. To go no further, at present, with the con- sequences of this reciprocal indulgence, it is plain, that its practice must be at variance with the quieting policy of the law, at the same time that no prospect of general assistance to justice could be afforded by it. Morally speaking 1 , there are many reasons why a second trial should be as unsatisfactory as the first. 2. But, though it is the positive and reasonable general rule of our criminal jurisprudence, that the accused cannot be brought to a second trial, a particular exception to this rule exists in the statute-books. In cases of murder, the law some- times allows thene.vt heir to appeal (or summon) a suspected person to a second trial, alter, and in the face, of an acquittal by " God and the country." 3. The particular proceeding, by which the next heir of a person murdered is enabled to force the accused to undergo the risk of a second trial, is denominated an " Appeal." The Appellor, or summoner, obtains, from the Crown, a *' Writ of Appeal ;" that is, a writ of attachment against the body of the accused, in order to his an- swering the Appeal. The authority of this an- cient and commonly neglected provision of our criminal law has recently been resorted to. Writs of Appeal have been sued out, in more than one of the King's Courts of Law. The provision, upon being, now, narrowly looked into, is found to be incumbered with various particularities, all flagrantly at variance with modern manners and opinions. More especially, the accused is en- titled to protect himself, at his option, by a resort to arms, under the name of " Wager of Battle." These particularities present difficulties which embarrass the suitors and the courts, and excite the curiosity an*d passions of the public. A strait path is endeavoured to be found ; not, however, as it would seem, (and as far as the popular voice is concerned,) in order to get rid of this monstrous attempt to bring a suspected person to a second trial — but to remove obstruc- tions which appear to oppose themselves to that proceeding. It is to attempt an entire reversal of this apparent public view of the question, that the following Argument is offered. 4. Much has been produced, for the purpose of popular information, upon the manner of con- ducting the Wager of Battle, upon the course pursued by the King's Courts in the most modern instances of its occurrence, and upon the excep- tions which have been allowed, where the Ap- pellor has refused to accept the challenge of the Appellee. But, amid these efforts to enlighten the public mind, nothing, I believe, has been set before it, to discover the origin and history, and consequently the reason, of the Appeal itself, and, thereby, to enable it to judge, first, whether the Appeal ought to subsist, unaccompanied by the right of Wager of Battle ; and secondly, whether, at this day, it is not infinitely more important to devise the means of destroying the operation of the Appeal, (for which the Wager is, indirectly, an instrument,) than those of carrying it into effect? It is my wish to show, first, that the Wager is so essential a part of the laiv, as well as the equity, of the proceeding under the Appeal, that instead of seeking exceptions against its award, the fewest possible exceptions ought to be allowed ; and, secondly, that the Appeal, not less than the Wager, is a practice abhorrent to all the principles of enlightened legislation, and particularly to all the principles and spirit of English criminal jurisprudence. The practical result of the Argument will be, first, that the Kings Courts, (they having no guide but the law,) since they cannot disallow the Appeal, should steadily uphold the Wager of Battle; and se- condly, that with all convenient speed, Parlia- ment should abrogate the subject's right to the W T rit of Appeal. - r >. The origin of the Writ is to be traced in the manners, customs and institutions of the first stages of society, when, as at this day, among the Indians of America, public law is per- mitted to extend only to public objects ; pri- 6 vate wrongs are left to private redress, and the laws of th'e country go no further than to recognize the private right to indemnity or revenge, and therefore to bear harmless the indi- vidual who distributes, by his own hands, that justice which the arm of society (now incomplete and weak) is unable to afford him. In these stages of society, then, if a murder or other in- jury is committed, it is in all cases the right, and in some the natural duty, of every man to be his own judge and executioner. Thus, if, in these stages of society, a father, a wife, a child, or a sister, is murdered, it becomes the imme- diate right (we will not speak of the duty) of the son, the husband, the parent, or the brother, to take the life of the murderer. The community does not interfere; the wrong is held to regard only the blood of the deceased ; if there is no surviving blood, the murder is unrevenged : but society, though it takes no par tin the execution of justice, yet approves and protects the hand from which it comes, and even consigns to in- famy the individual who, from cowardice, from indifference, or, from what it regards as a vicious compassion, is so wanting in piety to his injured relative, as not to pursue, or, pursuing, t<> forgive, the murderer. This belongs to the first stages of society. As nations unite more closely, as civil government is matured and strengthened, new views are gradually inspired into society. On the one hand, the justice of treating every act of private violence as a public wrong is per- ceived ; and, on the other hand, the inconve- nience of sufterins: individuals to avenge their own wrongs is bitterly experienced. There results a determination to take the business of distributive justice into the hands of the public, and thence a necessary co-existing determination to take it out of the hands of individuals. The necessity of leaving it in those hands has ceased, and the evils, the sense of which has led to the new order of things, irresistibly call for suppression. But whenever, and wherever, a new order of things is established, there remain some traces and some partisans of the old. Public laws and institutions cannot instantaneously remove established private habits and opinions. Those habits and opinions, however ill-founded and mischievous, will some- times he sanctioned by sentiments the most heroic and the most amiable. Above all, when they were well founded in a previous order of things, their want of adaptation to the new order cannot be both immediately and universally perceived. Not only the virtues, but the vices of men, may be engaged in the preservation of the ancient system. In the case of murder, men, in the rude state to which we have referred, have admitted the notion of a civil injury sustained by the next heir of the de- 8 ceased. The survivor experiences a loss of plea- sure, of comfort, or of services*, from the act of the murderer. Hence the origin of fines and damages against the latter regularly come down to us from the savage state. But, the practice of satisfying the next of kin by means of money, or other civil compensation, having obtained^, individuals would be discontented, under the new order of things, at the destruction of their rights to these advantages, and at seeing fines wholly dispensed with, or else carried to the public treasury. It is after this manner that we should trace the origin of the existing right of Appeal. It is an indulgence wrung from the weakness of the law, in favour of old and * This is still the language of our law, in the case of seduction of a wife or daughter ; and men's opinions are at this time divided, whether these offences ought to be punished civilly or criminally. t Among the Indians of America, the murderer may appease the wrath of the relations of the murdered by covering the body ; a phrase which implies, at once, an elegant sentiment of hiding a distressful and irritating ohject from the ejes of its natural lovers and avengers, and a worldly satisfaction of the more sordid feelings of the injured, by offering an atone- ment in goods. The American Indians cover the body by heaping upon it clothing and trinkets, and other articles of value. In a similar manner, Alexander covered the body of Darius; and Antony, when he wished to inflame the people of Rome against the murderers of Caesar, uncovered the body, and laid bare its wounds. vicious habits, at variance with the new system, but too strong, for a season, to be wholly with- stood. Neither are we, perhaps, to turn away from our consideration of the ori gin of the Appeal, until we have surveyed it under a third aspect. We must here treat it as a grant to the unsettled habits of the people, unaccustomed to leave their causes in the hands of the public, untaught to identify crimes against individuals with crimes against society, and especially unreconciled to confide the determination of that which they would think belonged so emphatically to them- selves, and to their own blood, to the decision of others and of strangers — and unwilling to submit their causes, in the last resort, to. the judgment of any neighbours, however respectable, or to the arm of any authority, however exalted. From the original state of society, just described, re- sulted and result those wars of families, recalled, in this kingdom, by the mention of the words clans and j'euds ; and from the difficulty of ob- taining an early and ready submission to the judgments of public courts, must have sprung the unwilling and temporizing continuance of Appeals. In reality, this view brings us almost tu our own times, and to the very use which is now sought to be made of the Writ of Appeal; not, exactly, to arm the private executioner, but to procure a revision of, and appeal from, the Verdict of a Jury. c 10 6. It is of great importance that we should acquaint ourselves thoroughly with the true his- tory of this first period of the Law of Appeal. Proceeding- on that foundation, we shall presently discover, that the law has had three periods, each increasing, (and not decreasing,) in barbarity, and that it is our own lot to witness the latest and the worst. 7. The first period was that in which the Law of Appeal was a simple recognition of what we have seen to be the general practice of the savage state ; a mere acquiescence, on the part of the civil magistrate, in the natural right of the indi- vidual to be the avenger of the wrongs under which he laboured; and a total absence of that principle in jurisprudence, which regards all acts of violence against private persons (all breaches of the peace) as crimes against the public. Blackstone quotes Lady Wortley Montague, to show, that in Turkey, it is the business of the next relations, and of them only, to avenge the slaughter of their kinsmen ; and that if they rather chuse to compound the matter for money, nothing more is said about it*. This is a state of law which belongs to the second stage of society, and this state once subsisted in England. * Lady M. W. Montague, Lett. 42. Blackstone, book iv, ch. 23. 11 8. It is by recurring to this original state of the law, that we come to a clear understanding of the signification of the word " Appeal," as used on the present occasion, and as contradis- tinguished from that of the same word " Appeal," as ordinarily employed in our language. " An Appeal," (as remarked by Blackstone,) does not signify, in the sense in which the word is here used, any complaint to a superior court of an injustice done by an inferior one, but means an original suit. The word is derived from the French " appeler," the verb active, which signifies, to call, or summon*. Now this is entirely plain, if we consider the " Appeal" as being, in its original constitution, (what alone can reconcile it with reason,) a proceeding necessarily antecedent to any other, or, more properly, alone, and final in itself; and that this, and this only, was the design of our forefathers, and that the rest is but modern barbarism, will soon distinctly appear. 9. The second period of the English Law of Appeal is that which commenced when acts of violence, committed upon individuals only, were first regarded and treated both as private and as public wrongs, and terminated with the date of the Statute of the third year of Henry VII, Chap. I. This twofold view of the crimes in * Blackstone, book iv, ch. 23. 12 question, on the one side as private wrongs, and on the other as public, continues to this day* ; but the modern law, in virtue of which the pri- vate prosecution lies, after the public one has been had, is to be dated only from Henry Vllf. * Blackstone, in one passage, calls the Appeal, a " private process for the punishment of public crimes ;" and though these expressions are borne out by the terms of the Appellor's count of Appeal, wherein the offence is charged to be against the peace of the King, yet it is still, in practice, what it was at first in theory, a private process for a private wrong ; and it was with greater practical accuracy that the learned writer had just before represented, that " an Appeal, when spoken of as a criminal prosecution, denotes an accusation by a private subject against another, demanding punishment on account of the particular [private'] injury suffered, rather than for the offence against the. public." Comment, book iv, ch. 23. t " Laws were passed in this reign, ordaining the King's suit for murder to be carried on within a year and day. Formerly, it did not usually commence till after; and as the friends of the person murdered, often, in the interval, compounded mat- ters with the criminal, the crime frequently passed unnoticed." Hume's History of England, temp. Henry VII. " There was made, also, another law, for peace in generall, and repressing of Murthers and Man-slaughters, and was in amendment of the Common. Lawes of the Realme, being this : That whereas by the Common Law, the King's suit, in case of homicide, did expect the yeare and the day, allowed to the parties suit by way of Appeale ; and that it was found by ex- perience, that the partie was many times compounded with, and main times wearied with the suit, so that in the end such suit was let fall, and by that tune the matter was in a manner forgotten, and thereby prosecution at the King's suit by indict- 13 10. Up to the time now mentioned, the law, if it had been inefficient, had, at least, been neither absurd nor cruel. But, in addition to its other vices, it had gradually become inefficient, as to the ends of public justice; and it is to the dif- ficulty which, naturally enough, existed, in the time of Henry VII, to adopt a complete remedy, that we owe the disgraceful statutory innovation, upon the best principles of our Common Law, to the present hour remaining. Omitting (even if we were able) to follow minutely the history of the Law of Appeal, we may content our- selves with bringing together a few leading and useful facts. The Appeal, as a remain of the savage state, has always been a favourite with the people, and always an object of just aver- sion with the government. The embarrassment has been, how to abolish it, without offence to the public prejudices. To abolish it has always appeared a public good, but a public good to be obtained only by the sacrifice of private rights. The people have regarded their trespassers as their debtors ; and it has appeared to them, that Parliament has no more right to dispossess them of the power of prosecuting those who are guilty meat (which is ever best, flagrante crimine) neglected ; it was ordained, That the suit by indictment might bee taken as well at any time within the yeare and the day, as after, not preju- dicing, nevertheless, the partie's suit." Lord Bacon's Histcr* of the Reign of Henri/ VII, p. Go. 14 of felonies against them, than of that of suing hose who owe them money, or who detain their goods. Hence the necessity of temporizing. The right of Appeal has not been abolished, but it has been gradually restricted. This en- lightened policy, however, comes down only to a certain date. To more recent times belongs the dishonour of aggravating the evil of Appeals. 11. The law of murder, in England, at and up to the beginning of the reign of Henry VII, exhi- bits only a few successive removes from that which has just been described as the law of Turkey*. Murder, together with other felonies, * The example of Turkey is more germain to the matter than may at first sight appear. Englishmen and Turks are alike members of the great Asiatic family, and the basis of social law is the same, from the banks of the Caspian to the Pacific Ocean on the one side, and to the Atlantic on the other. Blackstone suggests that our unwritten law lias descended to us from the Druids ; but this supposes its root to be with the Britons, rather than with the Saxons ; with the Celtic, rather than the Teutonic race. That the Druids came to us from the Mediterranean, is proved by the natural history of the oak and the misletoe, as well as by their seat in the island of Anglesea, whence they spread their missionaries into Gaul, rather than drew them from Gaul into Britain. The misletoe is rarely na- tural to the oak in our climate, but it is abundantly so in the south of Europe 1 , and in Britain it was artificially cultivated on 1 See CoUUmtch on the Misletoe. 15 had been early recognized as a public wrong, but it had been left with its character of a pri- vate wrong also. The consequence was, that prosecutions by the Crown had been admitted, while prosecutions by individuals were still al- lowed. But the mischief of* private prosecu- tions had been felt, and various limitations to their exercise had been successively established. The rational attempt to lead the people to a more sain- system of jurisprudence had been pushed as far as possible; and, in the midst of the worst circumstances, the great and sacred principle of the Common Law, That no man shall be put into jeopardy of his life more than once, upon the same charge, had never been violated. Our early forefathers, barbarians as w r e are pleased to call them, had still the sense that tree, by the hands of the Druids themselves. In the south, the oak was the tree of God, as, more southerly still, was the palm ; but the ash was the sacred tree of the north, and the misletoe could scarcely have been in much esteem with the Scandinavians, since it was with an arrow of that plant that Loke killed Balder 1 . Still, whether our laws came from the south or from the north, by the Mediterranean, or by the plains of Poland, they were Asiatic; the Britons and the Saxons had their origin equally in Asia ; and the history and meaning of the laws common to both, might doubtlessly find illustrations in the deserts of Tartary, from the judgments of Kublai Khan, and from the comments of the sages of the Golden Horde. i Fables of the Eddn. 16 and the virtue to shudder at the enormity of making the same criminal charge the subject of a second trial. There were no second trials. The individuals, to whom, in cases of murder, was still conceded the right of appealing, were allowed a year and a day for its exercise. Within that period, the Crown could not prosecute. If, within that period, the Appeal was made, the ac- cused was put upon his trial, either by Jury, or by other lawful mode of decision. Whatever the decision was, it was final. The Crown was un- able to prosecute after trial on Appeal. If, on the other hand, the period of a year and a day, from the date of the murder, went by, without Ap- peal by the wife, or heir lawfully entitled to make it, then the Crown could lawfully prosecute. In this state of the transaction, the right of Appeal had lapsed, and therefore no Appeal could be brought after the public prosecution. Thus, the prosecution by the Crown was equally final with the prosecution by Appeal; and the accused, in either case, was safe from a second trial. 12. The mischiefs which were experienced from the subject's right of Appeal were alter- nately of various description ; first, an oppres- sive exercise ; secondly, a supine indifference ; thirdly, a neglect, arising out of the inability, in many instances, of private persons, to avail them- selves of it; and fourthly, a sordid application : 17 all defeating, in one form or other, the ends of public justice. Here, upon light grounds, an innocent person was accused and destroyed; there, an indolent natural prosecutor left a no- torious criminal at large : in one case, the po- verty, or remote situation, or unwillingness to encounter the perils of a prosecutor, or the al- tered habits of society, absolutely prevented, or effectually deterred, the lawful avenger of the deceased person from every effort against his murderer; in others, the wealthy criminal easily compounded with the avaricious and selfish pro- secutor. It was the union of all these circum- stances that led to the fatal alteration of the law, by Henry VII, in whose Statute, already adverted to, the case is thus set forth : — " Item, the King, remembring how murders and slaying of his subjects daily increase in this land, the occasions whereof be divers : one, that no man, in townes where such murder happen to fall and to be done, will attach the murderer, where the lawe is, that if any man be slaine in the day, and the felon not taken, the towneshippe where the death or murder is done shall be amerced. And if any man be wounded in peril! of death, the partie that so wounded should be arrested, and put in suretie till perfect knowledge be had, whether he so hurt should live or die. And the Coroner, upon the view of the bodie dead, should inquire of him or them that had done that death or n 18 murder, or their abettors and consenters, and who were present when the death or murder was done, whether man or woman, and the names of them that were present, and so found, to inrol and certifie; which law, by negligence, is disused, and thereby great boldnesse is given to slayers and murderers: And over this, it is used, that within the yeere and day after any death or murder had and done, the felon should not be determined at the King's suit, for saving of the partie's suite ; wherein the partie is oft time slow, and also agreed with, and by the end of the yeere all is forgotten : which is another occasion of murder. And also, he that will swear Ap- peal!, must sue in proper person, which suit is long and costly, that it maketh the partie ap- pellant wearie to sue." The Statute, then, proceeds to make an alteration in the ancient law, as follows : — " For reformation of the pre- mises, the King, &c. will, that every Coroner exercise and doe his office according to the law, as is afore rehearsed. And that if any man be slaine or murdered, and therefore the slayers, murderers, abetters, mainteiners and com- forters of the same be endyted, that the same slayers and murderers, and all the accessaries of the same, be arraigned and determined of the same felony and murder, at any time, at the King's suit, within the yeere after the same felony and murder done, and not tarry the yeere and day 19 for any Appeale to be taken for the same felonie or murder. And if it happen any person, named as principall or accessary, to be acquitted of any such murder, at the King's suit, within the yeere and day, that then the same Justices, before whom he is acquitted, shall not suffer him to goe at large, but either to remit him againe to prison, or else to let him to baile, after their discretion, till the yeere and day be passed. And if it fortune that the same felons or murderers, and accessaries, so arraigned, or any of them, to be acquitted, or the principall of the said felonie, or any of them, to be attainted, the wife, or next heire, to him so slaine, as case shall require, may take and have their Appeale of the same Death and Murder, within the yeere and day after the same felony and murder done, against the said persons so ar- raigned and acquitted, and all other their ac- cessaries, or against the accessaries of the said principall, or any of them, so attainted, or against the said principalis so attainted, if they be on live, and the benefit of his clergie thereof before not had. And that the Appellant have such and like advantage, as if the said acquittal or at- tainder had not beene, the sayd acquittal or attainder notwithstanding. And over that, the wife, or heire, of the said person so slaine or murdered, as case shall require, may commence their Appeale, in proper person, at any time 20 within the yeere after the said felony done, be- fore the Sherife and Coroners of the countie where the said felony and murder was done, or before the King- in his Bench, or Justices of Gaole Deliverie. And the Appellant, in any Appeales of Murder, or Death of a Man, where Battell, by the course of the Common Lawe, lieth not, may make their atturnies, and appeare by the same, in the said Appeals, after they be commenced, to the end of the suit, and exe- cution of the same*." 13. Thus we have arrived at the third pernod of the history of the Law of Appeal, and the following* is what we have now discovered : — 1°. That the law originated with the infancy of society, when breaches of the peace, haviug no further object than the injury of individuals, were not regarded as public wrongs. 2°. That the first advances of civilization pro- duced three changes of the ancient practice; namely, the adoption of breaches of the peace, of the character now described, into the list of public wrongs; the consequent punishment of them by public prosecution; and the limitation of the private prosecution to the period of a year * Anno 3 Hen. VII, cap. i. Itastell's Statutes, p. 202. 21 and a day, counting from (he date of the com- mission of the offence. This is our Common Law. 3°. That originally there was but a single trial, on the private prosecution ; and that under the iirst changes there was still but a single trial, the Crown being obliged to wait a year and a day for the private prosecutor ; the private prosecu- tion, if carried into effect being final against the Crown, and the public prosecution (the right of private prosecution having lapsed before its pos- sible commencement) being final against the Sub- ject. Thus far, too, our Common Law. But, 4°. The Statute of the third year of Henry VII, passed for the remedy of serious inconveniences of the Common Law, and amid the impossi- bility (through the public habits and prejudices) of establishing at once a rational system of pub- lic justice, effected this barbarous innovation on the Common Law, — That while it gave to the Crown the desired power of immediate public pro- secution, it saved the Subject's right to private prosecution, during the customary term of a year and a day, provided that there was an acquittal on the trial at the King's suit. 14. But the perversion of the ancient law — the violation of the principles of the Common Law — has not stopped where we now are. The third 22 period is one of yet ruder barbarism. The Law of Appeal remains, as to legislative enactments, "where it was left by the Statute of Henry VII ; but the decisions of the Courts, and the comments of modern lawyers, have since lent their assist- ance to the increase of the evil. Blackstone is surely in error, as far as concerns that Statute, with respect to his view of the reason of the conti- nuance of the private process. After deducing the origin of the process from the times " when a private pecuniary satisfaction, called nweregild, was constantly paid to the party injured, or to his relations, to expiate enormous offences," he observes, " As, therefore, during the continuance of this custom, a process was certainly given, for recovering the weregild by the party to whom it was due; it seems, that when the offences grew no longer redeemable, the private process was still continued, in order to insure the infliction of punishment upon the offender" It is this principle, of insuring the infliction oj punishment upon the offender, that constitutes the modern and last perversion of the ancient law, and for which, as is here contended, the Statute of Henry VII is indeed the tool, but not the authority. No such principle received the sanction of the framers of that Statute. Their noble and well-taught minds (minds aiming at pure justice, and fully imbued with the maxims of our Common Law) never contemplated the private process as a 23 happy medium for defeating an acquittal under a prosecution of the Crown; as a precious engine for disturbing the Criminal Verdict of a Jury; as a fortunate weapon by which the peace and liberty of a subject of the realm could be newly molested, and by which, here and there, in a few partial instances, and under casual and partial circumstances, the life of an individual, perhaps only found guilty of being suspected*, could be remorselessly taken away! Their noble and well-taught minds would have shrunk from a voluntary assault upon the bulwark of the Common Law, which says, that no man shall be put into jeopardy of his life twice, upon one criminal charge; and least of all would they have voluntarily made a breach in that bulwark, — not for the general purposes of public justice ; not for the establishment of a rule which should operate alike upon like cases; which should have for its object all murders, and for its victims all murderers ; but for one which should have no effect but in a few arbitrary instances, should be dead but to a few privi- leged prosecutors, and should strike but a few unlucky delinquents! They were above such paltry designs ; all the objections to a second criminal trial were as present to their understand- ing as to ours ; the Common Law was their guide, as it should be ours: but it was their hard * Goldsmith. 24 lot to be obstructed in their progress by the stumbling-block of an ancient custom : the times permitted them to do no more than they did; but they did all that they could ; and they left to their children an example, which, hitherto, there has been a want either of sense or of virtue to follow. It was no principle of theirs, that the private process should be continued, in order to insure the infliction of punishment upon the of- fender, (to accuse and try again the man whom " God and the country" have acquitted,) but they continued it, under all the restraints they could apply, as an evil which their age did not allow them wholly to obliterate ; in like manner as it is the ignorance, and perhaps the faction, of times otherwise more favourable to its abo- lition, that has hitherto, not only preserved the institution, but applied (misapplied) it to pur- poses that would have filled our ancestors with shame and indignation. 15. The difference of sentiment, between our early forefathers and our immediate predecessors and contemporaries, upon the merits of the Law of Appeal, is matter of record. All the restraints upon its operation are ancient; all the extension of its principle is modern. The ancient restraints successively limited, 1. In general, the occasion of its use ; and 2. The description of those who could use it. Our ancestors regarded it as a nuisance ; we, as an ornament. There is no 2o statute nor written law in which it is established; and scarcely one which does not go to take some- thing from it*. This was even the design of the third of Henry VII, however unavoidable the op- posite consequence which has followed. It is probable that the Norman conquest introduced, along with the feudal system, the extension of Appeals to matters of offence against the state. The unsocial principle, that acts of violence, coin- * It has been represented that the right of Appeal has some basis in the provisions of Magna Carta, a fact which, it' true, might throw difficulty in the way of a legislative abo- lition. But Magna Carta is silent on the subject of the right of Appeal, except as to the purpose common to so many other parts of our written law, namely, that of narrowing its lawful exercise, and repressing its abuses. That instrument only pro- vides, that " No man shall be attached nor imprisoned upon the Appeal of a woman, for the death of any other man than her husband." " J\nllus capiatur nee imprisonetur propter Appellum ftmiiicE, de morte alterius quum viri sui." A Statute of Edward I, in the mean time, affords some protection to the right of Appeal, but, in so doing, shows, that the Courts of Law had been unfriendly to it ; a disposition which its abuses (if nothing else) will presently account for. By one of the Statutes of Glocester, "it is provided, that no Appeal shall be abated so sleightly as they have been heretofore, but if the Appealer declare the deede, the yeare, the day, the houre, the time of the King, and the towne where the deede was done, and with what weapon he was slaine, then the Appeale shall stand in effect, and an Appeale shall not be abated tor default of fresh suit, if the party sue within the yeere and day after the deed done. Glouc. cap. D. anno (i. Ed. I." Rastell's statutes, p. nn. K 26 milted against individuals only, are not public wrongs, was exchanged, under the feudal system, for one that forms the opposite extreme. Crimes against the prince or state may be said to have been then taken asprivate wrongs, and loyal indivi- duals undertook to appeal the offenders, and to prefer, at their own peril, the charges to be made against them. The Law of Appeal was then in its more vigorous stage of existence. Any sub- ject might then appeal another subject of high treason, either in the Courts of Common Law, or in Parliament, or (for treasons committed beyond the seas) in the Court of High Constable and Marshal, or of Chivalry. From this stage Appeals have gradually declined. The cognizance of Appeals in the Court of Chivalry still continues in force ; and, so lately as 1631, there was a trial by Battle awarded in that Court, on such an Appeal of treason: but that in the Courts of Common Law was virtually abolished by the statutes 5 Edw. Ill, c. 9. and 25 Edw. Ill, c. 24. and in Parliament expressly, by stat. 1 Hen. IV, c. 14 ; so that the only Appeals now in force, for things done within the realm, are those of felony and mayhem*. But, beside the general reduction of * Blackstone. " Appeal of felony may be brought for crimes committed either against the parties themselves, or their rela- tions. The crimes against the parties themselves are larciny, rape, and arson. And for these as well as for mayhem, the persons robbed, ravished, maimed, or whose houses are burnt, 27 the occasions of Appeal, still more important reductions have been gradually made in the description of persons capable of bringing it ; reductions which must appear inconsistent with sense and j ustice, if we do not explain them by ad- verting to a policy, the constant object of which was the total abolition of Appeals, as far as cir- cumstances, from time to time, permitted. An Appeal, says Blackstone, cannot be brought by every relation; but only by the wife for the death of her husband, or by the heir male on the death of his ancestor ; which heirship was also confined, by an ordinance of Henry I, to the four nearest degrees of blood*. It is given to the wife on account of the loss of her husband : there- fore, if she marries again, before or pending her Appeal, it is lost and gone ; or, if she marries after judgment, she shall not demand execution f. Complaints of abuses of Appeal are of perpetual may institute the private process." The Learned Commentator adds, " that the only crime against one's relation, for which an Appeal can he hrought, is that of killing him, hy either murder or man-slaughter;" but, according to Comyns, vol. i, p. 504, A3, an Appeal may also he brought for rape, by a husband or male relation. * Blackstone, iv, 23. Mirr. c. 2. § 7. t Blackstone. " 1. If the person killed leaves an innocent wife, she only, and not the heir, shall have the Appeal. 2. If there be no wife, and the heir be accused of the murder, the person who, next to him, would have been the heir male, shall bring the Appeal. 3. If the wife kills her husband, the heir may appeal her of the death." 28 recurrence, and evince, in conjunction with the restraining enactments, with how much disfavour they were viewed *. * " From henceforth, a wryt [to here and determine Ap- peales before Justices assigned] shall not be graunted hut in a specyal case, and for a cause certayne, when the Kyng com- maundeth ; hut leste the partyes appealed or indyted he kepte longe in pryson, they shall have a wrytte of Odio et atia, lyke as it is declared in Magna Carta and other Statutes." Anno 13 Ed. I. cap. xxix. " Henry, Kyng of England, &c. to his Chauncelor in tht County Palatyne of Lancastre, gretynge. Know ye, that for a» much as dyvers men, of malyce and enemytie, and for gayne and vengeaunce, have often caused to be indyted and appealed dyvers of our true liege people, of treasons or felonyes in the Countie of Lancastre, pretendynge, by those Appeales and Eu- dytementes, that the said treasons or felonyes were committed in a certeyn place, where of trouth no suche place is had in the sayd Coutie where the sayd Appele and Endytement is made, to the great domage and peryll of such our liege people, con- syderyng that seme so appealed and endyted doe not appeare before the Justices in theyr proper persons, to answer thereof, for fear of beatynge, mayhemyug, or sleynge of them, by the conspiratours or procurours of the same Appeales and Endy- temeiits, as by the Comens of the realm of England, in our last Parliament, holden at Westmynster, by theyr peticyo ther exhibit, grevously explaining, was shewed; It is ordeyned in the same Parliament, by the assent of the prelates and great men of the same realme there beynge, at the rcqueste of the sayd Comens, for the comen profyt and quyetnes of the people of the same realme, that every Justice, which hath power to heare and determyne such treasons and felonyes within the sayd Countie, by the othe of xn men, of whom every shall have frchold in the same Countie to the yerely valour of <£ ». 29 15. Our history is now to terminate with the modern uses and views of the Writ of Appeal, as they are to be traced since the establishment above all charges, before that the exigend be awarded, without allegaeyon of the partye, as well in the partie's absence as his presence, shall enquyre of office, Whether any suche place be in the Coutie where such Appeles or Endyteraente be made or not. And if it be found, that there is no such place within the same Countie, tha suche Appeles and Endytementes, and the processe thereof, made or to be made, shall be voyde and holden for none. And that in such case the endytours afore- sayd be punished by impiysonement, fine and ransom, by the descrecyon of the said Justices. And that this present ordy- naunce and remedy extend as well to Appeales and Endyte- ments to be taken hereafter. And if any exigend from hens- forth be awarded, before that such inquysicion of office (as afore is sayd) be taken, that the same exigende, and the awarding thereof, be lykewyse voyd and holden for none. Provyded that this present ordynauce have strength and extend onely untyl the next Parlyament." Anno 7 Hen. V. In the 9th year of the same reign, this Act was confirmed and ordered to remain in force until the parliament after the King's return from beyond sea. 9 Hen. V, cap. 1. and made perpetual, Hen. VI, cap. 12. Appeals having been frequently brought in Counties where the persons so appealed did not live, and outlawry obtained against them, without their knowing of it, an Act was passed in the 8th of Henry VI, for reforming such abuses, and enacting that if the defendant did not appear to the first writ, a second should be issued three or four months (according to the time when the Courts were held, whether every month or six weeks) after the date of the first, and that the Sheriff should make proclamation in two Counties, and if the party appeal not •'hfii the last writ is returnable, thru an award against him 30 of the perverse principle, that it is continued in order to insure the infliction of punishment upon an offender*. The objections to this principle, and its total novelty, and modern creation out of the Law of Appeal, form one of the principal topics of this Argument; but it is impossible not to be arrested, from time to time, by the mortified feelings with which we contemplate it, when adopted into our Courts of Law, in the face, not only of one, but of all fundamental maxims. The law not only revolts from a second criminal trial, but it is at all times solicitous for the pre- servation of life. Its constructions are always may issue." This Act was further confirmed the 10th of the same reign. Blood-money seems to have been well understood, so long ago as the reign of Edward III ; and indeed the Law of Appeal is a direct incitement to the offences which that term infers : — " To eschewe the dammage and destruction that often doth happe by Sherifs, Jaylours, and keepers of prisons, within franchises and without, which have pained their prisoners, and by such evill meanes compell and procure, them to become appcalours, and to appeale harmelesse and guiltlesse people, to the intent to have ransome of such appealed persons, for fear of imprisonment or other cause ; the Justices of either bench, and Justices of assize and gaole deliverie shall, by force of this statute, enquire of such compulsions, punishments, and torments, and heare the complaints of all them that will com- pleine by Bill. And to heare and determine such plaints, as well at the writ of the party, as at the King's suit. Anno 1. Ed. III. cap. 7." Rastcll's Statutes, p. 3G7. * See before. 31 in favorem vitce. It catches at every straw on the side of the culprit. Yet, in spite of these ordinary rules, what lamentable things have not been done in our Courts, under colour of the Law of Appeal, from a forgetful ness of principles, and from a passion (fit only for the vulgar) " to insure the infliction of punishment upon the of- fender!'' The Statute of Henry VII provides, that an Appeal shall not lie against one who has been convicted of man-slaughter upon an indict- ment, and has had his clergy. In the known in- stance of Goring and Deering, Deering was con- victed of man-slaughter, but the granting his clergy was respited, expressly to leave him ex- posed to the operation of an Appeal of Murder ! Lord Chief Justice Holt condemns the decision of the Judges upon that case*; yet was himself * " Armstrong v. Lisle. Appellee was brought to the Bar, and it was moved, that he might have his clergy, on his con- viction of man-slaughter, on an indictment whereon he was tried last Assizes for Cumberland ; and per Holt, there have !>een resolutions, that the Judges may defer the allowance of ( lergy, to expose him to an Appeal. In the case of Goring mil Deering, the prisoner was convicted of man-slaughter ; < ler<;y respited; an Appeal brought; he pleaded all this mat- ter; but his plea was disallowed, by advice of all the Judges, and I tried him on the Appeal : hut I must confess I was never satisfied with that resolution, being of opinion, that it is the duty of the Court to allow the prisoner his clergy the same Assizes or Sessions wherein he is convicted. Hilary Term, H \V. II T. 1R90." Modern Reports, vol. XII, p. 109. " If the defendant, on an indictment, is convicted of man- 32 so satisfied with the principle, that Appeals are continued " in order to insure the infliction of punishment on the offender," that in the remark- able case of Christopher Slaughterford, acquitted on an indictment of murder, " he ordered," says the Reporter, ." an Appeal to be brought against him*." Chief Justice Holt had before him the example of i\Ir. Justice Harvey j\ But conclusive evidence of the unfortunate view which the Courts slaughter, and allowed his clergy, it will bar an Appeal: though some of our books tell us, the heir may lodge an Appeal im- mediately before clergy had ; and others say, clergy ought to be granted, and that it is unreasonable an Appeal should interpose presently to prevent judgment." 3 Inst. 131. " If a person, immediately after the verdict of man-slaughter, put in an Appeal of Murder, and, before the Appeal is ar- raigned, the defendant demands his benefit of clergy, this is a good bar to Appeal; and praying of clergy is having of clergy, though the Court delay calling the party to judgment, &c. 1 Salk. 69, 62. Kel. 93. But formerly it was held, that the Courts might delay calling a convict to judgment, and thereby hinder him from his clergy, and make him liable to an Appeal, especially if the Appeal were depending ; and where the record of a conviction of man-slaughter is erroneous, or insufficient, &c. the offender cannot plead the conviction and clergy had thereon, in bar of an appeal or second indictment, &c." 2 Hawk. R. C. 378, 379. * Modern Reports, 8 Ann. p. 217 ; a marginal note is properlv added, "Si juste?" It is probable, however, that the Chief Justice did no more than recommend an Appeal, and order the prisoner to be detained under the Statute of Hen. VII. 1 Norkotts and Okcmans. 33 have ordinarily taken of the duty imposed on them by the Statute of Henry VII, appears from their decisions on the question of Bail. " The Court," it is said, (Strange's Reports, 855,) " will bail in all cases of acquittal on an indictment, unless the Judge be dissatisfied with the acquittal^ I venture to assert, that the Judge's satisfaction or dissatis- faction with the acquittal ought to have no in- fluence on the question of bail. The words of the Statute are, " And if it happen any person, named as principall or accessary, to be acquitted of any such murder, at the King's suit, within the year and day, that then the same Justices, before whom he shall be acquitted, shall not suffer him to go at large, but either to remit him again to prison, or else to let him to bail, after their dis- cretion, till the year and day be passed." Now, in this enactment, the direction, not to suffer the acquitted person to go at large, till the year and day be passed, is peremptory ; what is left to the discretion of the Justices is only, whether " to remit him again to prison, or else to let him to bail." And how have our Courts conformed themselves to this regulation? What authority has been put into their hands, to express their satisfaction or dissatisfaction at any man's ac- quittal at the King's suit? Who has empowered them to remit one acquitted person again to prison, and yet suffer another acquitted person to go at large ? Who has given them the use of F 34 their " discretion" upon this point, and what is it they have done? They have undertaken to act upon their view of who ought and who ought not to be put on a second trial! They have admitted into our jurisprudence the principle, that the law can look with favour upon a second criminal trial ! But how different, how preferable, is the obvious intention of the Statute ! The Statute separates no man's case from another man's case; it deals an equal measure to all ; it says, that no person acquitted at the King's suit shall be suf- fered to go at large till the year and a day be passed, but that every such person shall either be remitted to prison, or let to bail, " after the discretion of the Justices." Now the Justices have, in the first place, exercised their " discre- tion" upon that point in relation to which the Statute gives them no " discretion," namely, the suffering acquitted persons to go at large, dismiss- ing some, and detaining others, according to their particular view of the guilt or innocence of such acquitted persons! Again, in what manner have they exercised the " discretion" really intrusted to them, " either to remit such acquitted persons again to prison, or else to let them to bail?" Why, they have construed this " discretion" as having reference to their private views of the real guilt or innocence of the acquitted person — and, if the intention of the Statute was that of promoting second criminal trials, or if they were justifiable in yielding themselves to the promo- tion of such trials — they have done rightly. But would it not have satisfied the words of the Statute, if they had confined their " discretion ;" if they had confined the acceptance or refusal of bail — to the single consideration of its sufficiency or insufficiency for insuring their hold on the acquitted person, so that he might be certainly kept from " going at large till the year and day be passed ?" Is not the safe custody of the pri- soner the sole and legitimate object of the Sta- tute, and do not frightful consequences result from the Court's resting the question of bail upon its own view of the real guilt or innocence of the acquitted person? The consequences of the whole of these practices of the Courts are these : 1. The general regularity of the administration of justice is disturbed, the Courts acting arbitrarily, with severity in one case, and with mildness in another. 2. The Courts thus render themselves promoters of second criminal trials, in contradic- tion to the maxims of the Common Law, in con- tradiction to the policy of the State, and without authority from the Statute which they affect to execute; and, 3. They become themselves the institutors of a third criminal trial, because, by making the question of bail to depend upon their view of the merits of the charge against the ac- cused, they pronounce, between the first verdict and the second verdict, a verdict of their own, 36 either of guilty or not guilty. If A, being ac- quitted on an indictment, moves to be admitted to bail, and the Court refuse bail on the ground of presumption of guilt, and then goes to trial on the Appeal, he carries with him the weight of their adverse decision ; and, in the whole, he is tried three times. For instances of the arbitrary and oppressive conduct of the Courts, I refer to the cases of Norkotts and Okemans*, Count Conings- raark f, Bam bridge and Corbet J, Pyle and * " Sir John Maynard relates a case which occurred 4 Charles I, wherein Mary Norkott, John Okeman, and Agnes his wife, and Arthur Norcott, were tried for the murder of Jane Norkott, wife of the said Arthur, at the Hertford Assizes, and acquitted, but so much against the evidence, that Judge Harvey let fall his opinion, that it were better an Appeal should be brought, than so foul a murder escape unpunished. The Appeal was brought by the young child, against his father, grandmother, aunt, and her husband, Okeman. The Appeal was tried before Sir Ni- cholas Hyde, Chief Justice. Okeman was acquitted ; but the other three found guilty. The grandmother and husband were executed, and the aunt respited, on account of her being with child." Har grave's State Trials, Vol. X, cap. 31. t " In the case of Count Coningsmark, who was tried for murder, 1681, and acquitted, the Court ordered a recognizance to be taken from the Count, with three sureties, to answer any Appeal, if brought." Hargrove's State Trials, Vol. Ill, p. 501. I " Thomas Bambridge, Warden of the Fleet, was tried at the Old Bailey, May 22, 1729, for the murder of Robert, Castell, a prisoner in the Rules of the Fleet. The charge was, that he had illegally removed him to a spunging-house, kept by one Richard Corbet, where he caught the smallpox and 37 Grant*, and Christopher Slaughterfbrd. In that of Norkotts and Okemans, it is very possible died— Bambridge knowing at the time, that a person sick of the small-pox was at Corbet's, and Castell declaring, that if he was carried there, and caught the infection, he should die. Bam- bridge was prosecuted on the Report of the Committee of the House of Commons, and acquitted. Upon this acquittal, Mary, the widow of Robert Castell, brought an Appeal against the said Thomas Bambridge and Richard Corbet (who had been a material witness in favour of Bambridge on his trial). In Hilary Term, 3 Geo. II, the Appeal was brought, " when it was moved, that the Appellees might be bailed ; and, upon de- bate, the Court were of opinion to bail Bambridge, and not Corbet : and the reason they gave was, that Bambridge had been acquitted, which was a strong presumption of innocence; and the Judge before whom he was tried, had certified, that he was very well satisfied with the verdict; and they said, they would bail in all cases, after an acquittal: and that was the reason they denied bail in Slaughterford's case, because Holt, Chief Justice, had sent out the jury again, to consider whether they would stand to their verdict of acquittal, and when they insisted upon it, he himself ordered the Appeal. " But, as to Corbet, there was no foundation to bail, for they denied that it was of course to bail in an Appeal ; so Bam- bridge was bailed by two persons who justified in £1000 each. Towards the latter end of the term, it was moved that the Ap- pellees might be discharged, there being a discontinuance, for that no venire had been taken out — the Court then admitted Corbet to bail. " Both, being thus out upon bail, appeared on the several continuance-days, according to their recognizances, and the Appellant also appeared ; and, in the beginning of this term, the Appellants moved for a rule on Mr. Turner, the officer who 38 that substantial justice was clone, but at the ex- pense of general principles, which are of more value than particular operations of right. The case of Count Coningsmark exhibits oppression, because it differs from ordinary practice. Those of Bambridge and Corbet, and Pyle and Grant, show the discretionary power which has been ex- ercised upon the question. On the opposite side, keeps the records at the Old Bailey, to attend the trial, with the record of Bambridge's acquittal; he not being allowed a copy of it. But the Court refused to make any rule, and said, if it was brought it could be no evidence. " The trial of Thomas Bambridge and Richard Corbet, on an Appeal for the murder of Robert Castell, came on at Guildhall, January 26, 1729-30, before the Lord Chief Justice Raymond, and acquitted. ' Upon this acquittal, Mr. Kettleby moved the Court on the Statute of 13 Edw. I. c. 12, which enacts, That upon a false Appeal, by malice, the Appellor shall suffer a year's imprisonment, and restore the parties appealed their da- mages, at the discretion of the Justices. But the Court would not allow the same; the Chief Justice said, he was only to try the issue, and that the application was proper above, or by writ of conspiracy, and all he could do was to record the ver- dict.' Upon the 3d Feb. the Appellees were discharged." Margrave's State Trials, IX, 182. Strange's Reports, II, 857. "* " Pyie v. Grant. — Hilary Term, 3 Geo. II. In an Appeal of Murder, it appeared the defendant was convicted on the indictment, but pardoned on the report of the Judge; and, after issue joined on the Appeal, he moved to be bailed, which was refused, the presumption being against him ; contrary to Bambridge's trial. Appeal was not prosecuted in this case/' Strange's Reports, II. 858. 3D the cases of Sayer and Salisbury*, and Smith and Bowenf, accord with the sound construction of the law. That of Smith and Bowen is parti- cularly entitled to attention. It is one of refusal of bail, but in which bail was refused from the sole legal cause of insufficiency. The safe cus- tody of a defendant, in order to his answering an Appeal, is all that should enter into the consi- deration of the Court; this is the proper subject * " At the Kingston Assizes, in March, 1712-13, Richard Noble, gent. Mrs. Mary Sayer, and Mrs. Mary Salisbury, were tried for the murder of John Sayer, Esq. Noble was found guilty ; Mary Sayer and Mary Salisbury acquitted. Counsel then moved, that Mrs. Salisbury and Mrs. Sayer might not be discharged, without giving sufficient bail, to appear, at any time within twelve months, to answer to any other indictment, or an Appeal. The Court ordered, they should give sufficient bail for' their appearance, themselves in £1000 a piece, and their sureties in £500.each. Upon which they were discharged." Hargrove's State Trials, IX, 7. " Bowen was tried at the Old Bailey for the murder of one Smith, found guilty, but obtained the Queen's pardon : the Appellant, an infant brother and heir to the deceased, lodges an Appeal, in propria persona, against Bowen, the same Sessions, which was removed by certiorari into the King's Bench, 8 Ann. The Appeal was afterwards abated, and a new one, by Bill, in- stituted by the Appellant's guardian. The Appellee prayed to be admitted to bail, which the Court said they would do on issue joined, demurrer, or Curia adeisare vnlt, if he could find four sufficient bail, who would be bound body for body ; but those he offered not being approved of, he was remanded to the Marshalsea." Modern Reports, Easter Term, 1709, p. 21 B. 40 for its " discretion ;" and its decision on the ques- tion of bail should involve no opinion on the probable guilt or innocence of the prisoner or Appellee. 16. While I condemn, however, the general conduct of the Courts, on this question of bail in Appeals of Murder, (and which is immediately connected with their whole administration of the law relating to those Appeals), I will not neglect to offer what I conceive to be at least part of their apology. They have evidently, one and all, held the language which is recorded of Mr. Justice Harvey, (see Norkotts and Okemans,) and, presuming to exercise their " discretion" according to their private and personal opinions of the merits of the case, have approved of Ap- peals, where, without them, " a foul murder might escape unpunished*." I must observe, in * We are very apt to mistake the " foulness" of a crime for certainty of evidence against the individual accused of it; or, in proportion as we are impressed with its enormity, the less nice we hecome in distinguishing the offender. A story is told of an Irish Jury which pretty well illustrates the infirmity of universal man. An atrocious murder having taken place, an unfortunate individual was accused of being the murderer, and brought to trial. The Judge charged the Jury, that no evidence had been produced against the pri- soner, and that therefore they must of necessity acquit him. To the surprize of the Court, however, the Jury returned a verdict of" Guilty," The verdict being recorded, the Judge 41 passing, how much possible error there may lurk under the words, " lest a foul murder should escape unpunished."' If a " foul murderer'' were the expression, less danger might present itself; but neither the one sentiment nor the other is to be tolerated in the mouth of an English Judge. The intention of the Courts, in the mean time, has been most pure. The Courts have only erred in common with the multitude, and sought for par- ticular justice at the expense of universal justice. They have only partaken with the multitude in the strong feeling and forgetfulness of reason which are induced by the recital of great crimes, and given way to that wild love of justice* which is requested to know upon what shadow of proof it had been brought. " My Lord," answered the foreman, " a great crime lias been committed ; somebody ought to suffer for it ; and we do not see why this man should not, as well as any other;" or, perhaps, the reply was, "somebody must have done it, and we do not see why it should not be this man, &c." There is the more reason to fear the influence of such an argument, or rather sentiment, because, however much it violates justice, it is unquestionably consistent with policy ; and, when men have got hold of the right, in whatever form, they are sometimes not very discerning in its due application. It is clear that it would be more to the advantage of society, that the innocent should sutler, than that a crime should not be fol- lowed by a punishment. The principle has even been largely acted upon, and with beneficial effect ; but, in adopting it, what becomes of justice, and of the rights of individuals 1 * Lord Bacon calls revenge " wild justice." There is also G 42 so excusable, but so mischievous ! But the Courts have acted from a conscientious persuasion of their duty; and the difference between them and us arises radically from our opposite views of the intention of the continuance of Appeals. They have thought them continued " in order to insure the infliction of punishment on offenders;" that is, they have gone, heart and hand, and in spite of reason and law, into the acceptance of the doctrine of second criminal trials. In conse- quence, they have used their discretionary power upon bail, in Appeals after trial on indictment, as they would rightfully use it in Appeals before such trial. Therefore, they have looked at the question of bail in Appeals after, as they do and ought to look at it in the ordinary cases of per- sons committed for trial for murder at the suit of the King, where, if no sufficient evidence appears to have been produced against the prisoner, they will admit him to bail. This practice, I repeat it, would be perfectly right, if the Appeal were the first proceeding*; but it is perfectly wrong where a wild love of justice, an ungoverned passion, which is capable of the greatest injustice. * "If any be appealed of Rape, he must be attached yf the Appeale be freshe, and they must see an apparent signe of truth, by effusion of bloode, or an open cry made, and such shall be by four or six pledges, yf they may be found. If the Appelc were without cry, or without any manifest signe or token, two pledges shall be sufficient. Upon Appeale of Wounds, especially yf the woudes be mortal, the partie ap- 43 its object is a second trial. There, they should obey only the letter (which is the spirit) of the Statute, by holding the Appellee (if not every person acquitted of murder) in safe custody, to answer the Appeal brought, or which may be brought. The sufficiency or insufficiency of the bail offered ; the means of insuring that safe custody, amid the desired indulgence to the pri- soner, is the sole point submitted by the law to their discretion. A contrary practice must deter a prudent Appellee from asking for admission to bail; for it prevents him from encountering the risk of a refusal without prejudice to the question of his innocence. Refused, he must (as inti- mated before) present himself to his second Jury with the judgment of " GUILTY" (pro- nounced by the Court above) printed in large letters on his forehead. 17. But the whole case of Christopher Slaugh- terford, above mentioned, is a practical com- mentary on .second criminal trials. " Christopher Slaughterford paid his addresses to Jane Young, pealed shall be taken immediately, and kept untvl it be known perfytely whether be that is hurt shall recover or not. And yf he dye, the defendant shall be kepte. And yf he recover helthe, he shall be attached by four or six pledges after, as the wound is great or smal. If it be for a raaime, he shal find no less then four pledges ; if it be for a small wounde or a maime, two pledges shall suffice." 4 an. Ed. I. 44 and it was generally supposed he intended t© marry her. The last time he was seen in her company was on the evening of the 5th of Oc- tober, 1708, from which day she was not heard of for a considerable time; on which, suspicions arose that Slaughterford had murdered her. About a month afterwards, the body of the un- fortunate girl was found, in a pond, with several marks of violence on it ; and the public suspi- cion being still fixed on Slaughterford, he volun- tarily surrendered himself to two Justices of the Peace, who directed that he should be dis- charged; but, as he was still accused by his neighbours, he went to a third magistrate, who, agreeably to his own solicitation, committed him to the Marshalsea prison, and he was tried at the assizes at Kingston, and acquitted. The ma- jority of his neighbours, however, still insisted that he was guilty, and prevailed upon the rela- tions of the deceased to bring an Appeal: towards the expense of which many persons subscribed. as the father of Jane Young was in indigent cir- cumstances. At the next term, he was tried in the Court of King's Bench, the Appeal being lodged in the name of Henry Young, brother and heir to the deceased. The evidence given on this second trial, was in substance the same as on the first; yet so different were the sentiments of the two Juries, that Slaughterford was now found guilty, and received sentence of death. He was 45 hanged at Guildford on the 9th July, 1709 *. ; * — But is the probability for or against the guilt of Slaughterford ? It is sufficiently distressing, when criminals convicted upon the surest evi- dence, die protesting their innocence, though of that act of falsehood we are not to be surprised that vicious men can be guilty. But how much more deeply ought we to feel the force of such declarations, when supported by the verdict of one Jury against the verdict of another Jury? And with how much suspicion ought we not to view the unfavourable verdict of a second Jury, driven to condemnation by the clamours of their neighbours, sent into the box expressly to reverse the decision of their predecessors, conscious that they can no otherwise satisfy the public, prepos- sessed by the current rumours and arguments — certain that if they should find a verdict of Not Guilty, they will disappoint all expectations, and * " Christopher Slaughterford was tried at the Lent Assizes in 17<>!>, at Kingston, in Surrey, for the murder of Jane Young, and acquitted, before Justice Holt: however he was ordered to remain in gaol, many persons thinking him guilty. The father and friends of the deceased being poor, a subscription was set on foot and money raised, and an Appeal was brought against the said Slaughterford, by Henry Young, brother of the deceased. He was tried at the Queen's Bench Bar, at West- minster, on the second day of the term following, before the Lord Chief Justice Holt, found guilty, and executed." liar- grave's State Trials, IX, 542. 46 bring reproach upon themselves? Does this second Jury enter upon the trial with the same freedom of the mind as the first? Do they go to try whether the prisoner is guilty, or not rather to jind that he is guilty ? — The case of James Clough is a second in point. He " was indicted for the murder of Mary Green, his fellow servant, at the Green Lattice, Holborn. He was tried in April 1729, and acquitted ; but, before the session was ended, an Appeal wasbroughtagainst him, by Wil- liam Green, the brother and heir at law of the de- ceased ; whereupon the prisoner was brought to the bar, and arraigned in the ancient French Law Latin, which was afterwards read to him in English. He desired till next sessions to plead. At the sessions in May 1729, William Green ap- peared, and moved the Court, that the trial should come on ; but in consequence of his not having brought a venire facias in time, it was de- ferred till next session. In July 1729, Clough was tried on the Appeal, the wituesses on the former trial were examined, and no new evidence adduced ; but he was found guilty, and executed July 25th. He protested his innocence to the last, and called on his master, on his way to Tyburn, and denied his guilt with great compo- sure*." * Newgate Annals, Vol. II, 35. In the instance of Lewis Houssnrt, as in tlmt of \orkotts and OKemans, it is possible 47 18. The intention of continuing the Writ of Appeal (we may now safely assume it) was no other than that of pacifying a rude popu- lation, habituated to avenge their own wrongs, and preventing the evils of family feuds and of individual bickerings and violence. It is not to satisfy public justice ; for that is that the real justice of the case was attained, though by excep- tionable means. New and important evidence was produced on the second trial ; and, if true, the culprit, possibly, was guilty. " Lewis Houssart was tried tor the murder of his wife, in March, 1724, and acquitted, but detained in custody on a charge of bigamy. In May 1724, an Appeal was lodged against him, by Solomon Rondeau, brother of the deceased. In October 1724, he was brought to a second trial. On the former trial, it had appeared, that Houssart had been separated from his wife, who was living with her mother ; that on the night of the murder, a boy was sent to Ann Rondeau, the mother, to say, that a person wanted to see her, in Shoreditch ; and, during the absence of the mother, the murder was com- mitted. On the second trial, the boy was produced, who swore to Houssart' s having sent him with the message to the mother, who also identified the boy. The Jury found the prisoner guilty, uny\ he was executed, December 7, 1724." — It is re- marked, that in this case, the prisoner made some objections to the plea, which were referred to the Jury, who decided iu favour of the Appellant on them all. One of the prisoner's ob- jections was, that " there were no such persons as John Doe and Richard Roe, who are mentioned as pledges in the Appeal ;" but a witness deposed, that there were two such persons then living in Middlesex, one being a weaver, and the other a sol- dier." Newgate Annals, Vol. I, 215. 48 already satisfied: the King, the common guar- dian of the public peace, has already prosecuted ; " God and the country" have been called upon to hear the accusation, " and true deliverance make ;" the accused has appeared at their bar ; the King has been heard by his attorney ; the King's witnesses have been heard also, and " God and the country" have pronounced a ver- dict of " Not Guilty." Public justice, then, is satisfied. The public, the King, shall not be per- mitted to harass the accused further; his life shall not be placed, a second time, at hazard ; his personal liberty shall not, a second time, be interrupted ; his reputation shall not, a second time, be impeached. But now comes the private suitor. He declares himself dissatisfied with the decision of " God and the country ;" he comes, to swear that the man whom he accuses is guilty, and he demands leave to pursue afresh, him whom " God and the country," upon the hear- ing at the suit of the King, have acquitted. This demand, upon the plea of his heirship to the deceased, is complied with ; but it is no longer a public prosecution ; it is no longer the King who prosecutes ; it is no longer public ends that are in view ; but there is a private prosecution, and pri- vate ends ; insomuch that, in the event of a ver- dict of guilty, the prosecutor, (not the King) may choose between taking the life or the money of 49 his victim ; he bars the mercy of the King ; he steps between the King (or the nation) and the accused; and no public objects, no motives for mercy, no doubts of guilt, no power of the King, the public or country, can interfere, to arrest the anger or the cupidity of the prosecutor, and prevent the celebration of this private sacrifice! All that is left to the country, to the King, is to sit by, in the persons of his Judges, to witness, and authorize, and regulate, this exercise of pri- vate power! Such is the effect of the Appeal of Murder ; and who will say, that it is an effect permissible in the state of society in which we live, and consistent with the strength, and, there- fore, the majesty, of the institutions which we have reared ? Who will say, that the intention of its continuance ought to be persisted in, now that the necessity for that continuance has ceased? 21. It has now been shown, that the principle upon which the Appeal rests, is one at variance with all that is estimable in the laws of civil society, and in the nature of advanced civil institutions. It has been shown, that its operation is to place the subject, suspected of crime, in double risk, contrary to the established general maxim of our law. It is evident, that whatever may be its tech- nical character, it must, when following a prior prosecution, take the nature of a second prose- H 50 cution, and of an appeal for a revision of a former sentence. But it is plain, that if an accuser has this right of revision against an accused, common justice demands, that an accused should have the same right of revision against the accuser. In civil actions, where new trials are obtainable, this reciprocal claim to revision exists ; and if new trials are admissible in criminal causes, the same reciprocal claims must be allowed, or the most atrocious oppression will be inflicted. But civil actions are perpetually renewable; the jus- tice of the Courts of Law is continually called upon to grijtit new trials ; and, thus, the same cause of action is capable of being kept before the Courts for a series of years, and through repeated trials. Are we aware of what we are about, when we talk of bringing a culprit before a court of re- vision, and of the dilemma in which we are in- stantly placed, whether we allow or refuse his equitable claim to be tried a third and a fourth time, as well as a second ; or, when we adopt a notion of the administration of public justice, the practical effect of which would, or ought to be, to keep a criminal charge over a man's head till the day when he descends into the grave ? 22. That too much has not been said, concerning the discordance of the Law of Appeal with the general principles of our criminal law, will be 51 conclusively demonstrated by the cases sub- joined : — 1°. " Pasch. 35 Eliz. Wetherel brought an Appeal against Darly, of Murder. This defendant pleaded not guilty, and was found guilty of man-slaughter, and had his clergy, and after- wards was indicted for murder and arraigned at the Queen's suit; and lie pleaded his former conviction in the Appeal at the suit of the party : and it was adjudged a good bar, and thereupon he was discharged, for it was a bar at the Common Law, and restrained by no Statute ; and the reason is, because the life of man shall not be put in jeopardy twice for the same offence." Coke's Reports, p. 258. 2°. " Cullingford was acquitted upon an indictment of murder, in the country, and an Appeal brought, and time given till the next assize, to plead. In the mean time the cause is moved by certiorari into the Court of King's Bench, the parties become agreed — the Appellant grants a release : where- upon he moved to be discharged, but the Court decided, that there being a record against him, if the Appellant did not ap- pear, lie must be arraigned at the suit of the Queen, and then he may plead auterfoits acquit: for, there being a record against him, that record must be discharged." Modern Reports, 13 Anne, p. 218. 3°. " In an Appeal of Murder, by Colt against Smith, for death of his brother, a conviction of man-slaughter and clergy allowed was pleaded in bar, and allowed to be good. And here, per Holt, the benefit of the clergy and burning in the hand is no judgment. And if a man be convicted of man- slaughter, and no judgment of death given, auterfoits convict will not be a good bar of an Appeal, but conviction and benefit of clergy is : And if one be convicted of man-slaughter upon 52 an Appeal, the King may pardon the burning in the hand, •which shows it is no judgment, for then could not the King pardon it ; and the Statute of Henry VII, has taken away the judgment of delivering over to the clergy, but orders a mark to be put on the party. Hil. Term, 15 W. HI, 1701." Modern Reports, vol. XII, 642. We will take no notice, in this place, of the Appellant's " release," in the second of these cases; but onlyobserve, in all the three, the irre- concilable principles of the proceedings on In- dictment and Appeal respectively ; those on the one side always leaning to mercy, the other breathing nothing but blood. And here, too, is the curious anomaly, that the Crown may par- don the burning in the hand, to an Appellee con- victed of man-slaughter, though it is held that it cannot save the life of one convicted of murder. Is the reason that which is given by Chief Jus- tice Holt, or is it because the burning in the hand is a punishment created by Statute, while death, upon a conviction of murder, follows by the Common Law? In either case, we see the general principles of our criminal jurisprudence struggling for operation, wherever the barbarity of the Law of Appeal can be successfully re- sisted or evaded. 23. Concerning the private ends which charac- terize the proceedings under a Writ of Appeal, 53 as distinguishable from those of public justice, we shall have occasion to speak again here- after. 24. But let us now take an opposite view of our subject ; let us suppose the Law of Appeal to be excellent; let us view with indifference the intention of its continuation by our ancestors, and let us rest satisfied if we have a reasonable intention of our own. Let us see, then, what is the state of this excellent law, as to its means of carrying our most reasonable intention into ef- fect ! 25. At the outset of our inquiry in this direc- tion, we are met by almost endless limitations of the right of Appeal. It is not upon every mur- der, and against every murderer, that an Appeal can be brought. The particular merits of the case, the probable guilt or innocence of the ac- cused (questions with which our Courts have so preposterously incumbered themselves) are nothing in the eye of the law. The venerable code under which we live enters into far more enlightened considerations ! It inquires — not what are the probabilities of guilt — not what is the greater or less atrocity of the murder — but what are the relations which the deceased has left behind him! Nay, it is of indescribable importance to the success of the Appeal, to know what is the 54 condition, physical and moral, of the Appellor ! If the widow marries again, she cannot bring an Appeal ; if she marries while the Appeal is pending, the Appeal abates*. A husband has no Appeal for the murder of his wife ; a sister for that of her brother nor sister ; a daughter for her father nor motherf ; a mother for her son nor daughter ! Thus, had Thomson's " lovely young Lavinia" found an untimely death ; had Palemon, instead of being " the prince of swains," been a ravisher and murderer, no punishment, by Appeal, for want of an heir male, could have succeeded. Her " mother," " While (pierced with anxious thoughts) she pined away " The lonely moments for Lavinia's fate," must have wept unheeded. Her " withered veins" * " If a wife marries again before the Appeal is brought, or whilst the same is depending, her Appeal is gone." 2 Inst. 68. 317. This may happen, therefore, in the aggravated and not unheard-of case, of a wife's consenting to the murder of her hus- band, for the express purpose of marrying the murderer! So, also, in an Appeal of Rape, if the woman marries her ravisher, her Appeal is lost. But here, according to Coniyns, the wo- man's subsequent consent does not prevent an Appeal by certain of her male relations. t " The husband shall not have an Appeal for the death of his wife ; but the heir only." Danv. Abr. 488. " If a woman brings an Appeal of Death of her father, or of any other besides her husband, the Judges are bound, ex officio, to abate it, though the defendant takes no exception to it." 2 llawk. PI. ( . 1(J(J, cap. 23, 5. 42. 55 could have had no quickening from the " joy" of revenge. In a word, a wife, an innocent wife, and a male heir*, within the four nearest degrees of blood -f, are the only persons (as we have seen) who can bring an Appeal. Nor is this all : we have seen that a daughter cannot appeal a murderer for the death of her father nor mother ; but this is not enough ; the very existence of a daughter of the deceased may bar the Appeal ; for the heir, say the books, ought to be the im- mediate heir: so, if the deceased leave issue a daughter, his brother shall not have an Appeal^. * " Where an Appeal lies against an heir, the next heir shall bring it." Hawk. P. C, 182. t See a distinction still more nice, Comyns, i, 503. 2 Inst. 69. ; Comyns, (i, 503,) who cites II. P. C. 183, and Co. Lit. 256. 2 Inst. OB, tells us, that the heir shall have his Appeal, though he derives Ids blood by females ; but Pulton has some exceptions to this rule:—" As a woman shall have no Appeale of the death of any other but of her husband, no more shall any cosin of him that was slaine, who maketh his con- veiance in kinred by a woman, have any Appeale of the death of him that is killed ; notwithstanding he be issue male, and not female ; and notwithstanding that the woman by whom he maketh his conveiance died in the lifetime of him of whose death the Appeale is commenced. As, if a man have issue one only daughter, who marrieth a husband, hath issue a sonne, and dieth, and, after, the father of that woman is slaine; in this case, the sonne of the woman shall not have an Appeale of the death of his saide grandfather, though he be his next heire at the Common Lawe, and inheritable to his land ; be- cause his mother was foreclosed of it bv the foresaid Statute 56* So, again, (and for the same reason,) if the next heir die, before or after an Appeal commenced, the heir of that heir shall not have an Appeal*. So, if the deceased leave a wife, who dies within the year, before an Appeal commenced, the heir of the deceased shall not have an Appealf; for the action was once attached to another. The blood of the heir must not be corrupted by at- tainder, nor the deceased be an attainted person J. The wife must be lawfully married ; for if the Appellee can discover a defect in the marriage or pretended marriage, he may bar the Appeal : " tie unq. decouple is a good plea." If a wife mar- ries again within the year, though her second husband dies within the year also, there is no Appeal. If she is eloped or divorced at the time of her husband's murder, there can be no Ap- peal ; for, in that case, she has no right of Appeal of Magna Carta ; and so, likewise, lie which hath none other title thereunto, hut that which he deriveth from his saide mother. But if he that was slaine have none heire on the father's side, then the uncle or next of kin on the mother's side shall have the Appeale ; yea, though he do convey his title thereunto by a woman." Pulton, p. 157. * Comyns, i. 503. t Except when the wife kills her husband. On the other hand, the wife may have an Appeal though she had eloped in his life-time, and though her husband was attainted; which last is a bar to the heir. I See the preceding note. 57 herself, nor can the heir appeal*. But further, if there be no wife, and the immediate heir male be an ideot, or insane, or born deaf and dumb, or out- lawed in a civil action, there can be no Appeal f. Such are some of the difficulties that stand in the way of executing our reasonable intention of bringing persons accused of murder to a second criminal trial — and yet the master-piece remains behind ! If an accused person is prosecuted on an indictment for murder; if the fact, that the deceased came by his death by the hands of the accused, be beyond all dispute; but if (as happens every day) the circumstances leave such a shadow of a ground for doubt, as to whether, in a moral, or perhaps only a legal sense, the crime amounts to murder ; if, in such a case, a Jury, almost reluctantly, shall in- cline to the merciful side, and bring in a verdict of man-slaughter, and the prisoner shall undergo the smallest allowable punishment — that prisoner is saved from prosecution by Appeal, and conse- quently from further peril of his life. But if an accused person, upon being brought to trial, shall * " An heir shall not have an Appeal tor the death of a man married, except the wife kill the husband; in which case the heir may prosecute the \ppeal." 1 Leon. 3"2(J. 1 Inst. 33. t " An ideot, or a person born deaf and dumb, or one at- tainted of treason or felony, or outlawed in a personal action, so long as such attainder or outlawry continues in force, cannot bring any Appeal w lutsoever." 2 Hawk. 1G8 et seq. I 58 appear to his Jury to be wholly innocent ; if he shall appear to have caused the death of another only through misadventure; if he shall appear to have had nothing to do with that death, and to be quite wrongfully accused ; if error, or if the worst motives are shown to have led to his pro- secution # ; and if, in these circumstances, he is, as of course he will be, entirely acquitted, and, as men would say, entirely cleared by his Jury — that man may be prosecuted again upon Appeal, con- demned at the pleasure of a second Jury, and executed (as we shall see hereafter) in spite of the Court, the Crown, and the Country. Such is the law ; such is the law which has hitherto been preserved, (preserved, as we shall find, not through neglect nor forgetful ness but) with anxiety, with jealousy, with determined opposition to repeated attempts to abrogate it ! Such, then, is the law — absurd it will be called by every tongue — and the folly of our ancestors will be taken for the cause. The wisdom of these enlightened times, and the ignorance and barbarism of the " old men, our fathers," will be comfortably set down as the explanation — both of the condition of what we find, and of our skill in discerning its defects. But the flattering unction must be forborne. The ignorance and the barbarism is ours, and not our fathers'. We intend the Appeal to be a part of * See the case of Banibridge and Corbet, above. 59 public justice ; the honest savages, our ancestors, had no intention of the kind ; they gave the wife and the heir a civil suit, for Hie relief of their private loss. Tn after times, when public justice inquired into crimes — when example, and not re- venge nor compensation, became the principle of criminal punishments — when the arm of the law became strong enough to deal with the offenders — the Appeal lost all its utility — it was even pregnant with mischiefs. It was then that new generations began the work of restricting the right of Appeal. They took it away wherever they could ; and that is the reason why so little re- mains. Again, our Courts, to do them justice, though they have unhappily lent themselves to the principle, that Appeals are continued in order to insure punishment on offenders — have still construed the law with laudable strictness on some other points — and hence, from their good sense and equity itself, have sprung some of those features of folly and injustice to which we have pointed. The reason why a person acquitted, even in the worst circumstances of murder, and found guilty and punished for man-slaughter, cannot be prosecuted by Appeal, while a person perfectly innocent can be so prosecuted ; is sub- stantial and unimpeachable, whatever is the ano- maly it may occasion. A wife can appeal only under the restrictions that have been mentioned, because nothing was anciently intended bv the 60 Appeal, but a compensation for her private loss, which she might take in vengeance upon the murderer of her husband, or in money or goods; and, this being so, if she married again, it was considered, that neither in her affections, nor in the want of a husband, had she any civil loss to compensate. So, the heir could prosecute only for his civil loss ; and the law, as has been seen, refuses the right of Appeal even to the great majority of heirs. All females, ex- cept wives, were excluded — for a reason which it will be of much importance to this Argu- ment to produce hereafter. Now, every re- striction of this kind would have been equally absurd and unjust, if public justice had been the end in view; but there was no such end proposed ; the Appeal was a civil suit ; and further, the po- licy of the legislature was, gradually to abro- gate the right of Appeal; and, for that purpose, every contrivance was made use of, to restrain it, from time to time, as much as possible. Again, the reason why a person convicted of, and pu- nished for, man-slaughter, cannot be appealed, while one who is acquitted, may be appealed, tried again, and executed, is, that the Courts, in this respect, have pursued a course as near to justice and the Common Law, as the Statute of Henry VII has permitted them— as the Statute, in its turn, went as near to justice and the Common Law as the framers were able to make it. — With 61 this view of the partial and fantastic operation of the modern Law of Appeal before us, what ought to be our reflections? Criminal law has sometimes been called a cobweb, which stops little rogues, while great ones break through ; but what sort of a cobweb is that, the very nature and texture of which is systematically adapted to stop only one offender in every hundred, and let the remaining ninety-nine escape? 26- Thus far, however, we have considered only the obstacles which stand in the way of so many of the survivors of a murdered person, to prevent the bringing an Appeal, and to ob- struct the accomplishment of what we are now supposing to be so reasonable an intention — that of procuring the second trial of one accused but acquitted ; and thus far it has appeared, that the Law of Appeal is at variance, by its inequality, with the general principles of our jurisprudence, which throw no similar difficulties in the way of prosecution by indictment. But, turning from the prosecutor to the prosecuted, we are again to behold the peculiarity of this mode of proceeding, inasmuch as, in what regards our present exami- nation, it violates the principles of our laws, by bringing an accused person to trial without the intervention of a Grand Jury. " In the admi- nistration of justice in criminal cases," (to use the words of an able Judge, now presiding in 62 one of His Majesty's Colonial Courts ,) " our law has wisely provided for the accusation and trial of every culprit by his peers ; and, with a view to his protection against the possibility of oppression, has rendered the indictment of a Grand Jury, and the verdict of a Petty Jury, alike indispensably necessary to his condemna- tion *." This is, indeed, the provision of our ge- neral law — but what says our Law of Appeal? Does any one, under that law, stand between the prosecutor and the prosecuted? No such thing. Observe the summary course of the proceedings. First — for we will forget, for the present, that there has been a previous trial and acquittal — first, the accused is seized and committed to prison — upon what ? any evidence of guilt ? — no, but at the request of the prosecutor, and upon the single condition, that the latter produces sureties for prosecuting the Appeal ! The following is the form of the King's Writ : FORM OF A WRIT OF APPEAL. "George the Third, by the Grace of God, &c. To the Sheriff of greeting. If of the parish of in the county of who was the and is the heir of late of in the parish of in your county, deceased, * See a learned and practical Charge, delivered to the Grand Jury of the district of Quebec, at the late Summer Assizes, by the Hon. Chief Justice Sewell, ColonialJournal, Vol. IV. 63 shall give you security to prosecute his suit, then we command you that you attach late of in the parish of in your county, by his body, according to the law and custom of England, so that we may have him before us on the morrow of All Souls, wheresoever we shall then be in England, to answer to the aforesaid of the death of the aforesaid heretofore his and whose heir he is, whereof he ap- pealeth him ; and have you there this Writ. Witness ourself at Westminster, the day of in the year of our reign. The Appellee, being thus placed in custody, is next compelled to plead, by the single virtue of the Appellee's Count of Appeal, or account of his appeal, call or summons : FORM OF A COUNT OF APPEAL. " In the King's Bench, Michaelmas Term, 58 Geo. III. was attached to answer who was the and is the heir of de- ceased, of the death of the said and thereupon the said in his own proper person instantly ap- pealeth &c. For that he the said not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the day of in the year of the reign of our Sovereign Lord George the Third, by the Grace of God, &c. with force and anus, at the parish of in the county of in and upon the said in the peace of God and our said Lord the King then and there being, feloniously, wil- fully, and of his malice aforethought, did make an assault, and that the said then and there feloniously and wil- fully, and of his malice aforethought, did 64 and did then and there feloniously, wilfully, violently, and of his malice aforethought, in the by means of which said of the said by the said in form aforesaid, the said of the said then and there died. And so the said the said in manner and form aforesaid, feloniously and wilfully, and of his malice afore- thought, did kill and murder, against the peace of our said Lord the King, his crown and dignity. And if the said will deny the felony and murder aforesaid, as afore- said charged upon him, then the said who was the and is the heir of the said deceased, is ready to prove the said felony and murder against him, the said according as the Court, here shall consider thereof; and hath found pledges to prosecute his Appeal. Witness, So directly in the teeth of our ordinary maxims is such a proceedingas this; and so little, at times, have the historical explanations, which alone can assist us in appreciating it, been adverted to, that an eminent lawyer of a former age ventured to found on it a view of the purpose of our Grand Juries, in every respect as mischievous as it is erroneous. On the trial of Fitzharris, Count Co- ningsmark, Sir John Hawles went into the fol- lowing argument : " It is true, (observed the Learned Counsel) it is generally said, that the business of a Grand Jury, in capital matters, is in favorcm vitte ; but that, taken simply, is not true: for, then, Go what reason can be assigned, why a man shall be arraigned on an Appeal of Murder, Robbery, or the like, which touches his life, as much as an indictment of these crimes, without having the matter of the Appeal first found to be true by a Grand Jury ; but the true reason of a Grand Jury is, the vast inequa- lity of the plaintiff and defendant ; and therefore the law has given this privilege to the defendant, on purpose, if it were possible, to make them equal in the prosecution and defence, that equal justice may be done between both. It considers that the judges, the witnesses, and the jury, are more likely to be influenced by the King than by the defendant; the judges, as having been made by him, and as it is in his power to prefer or reward them higher: and though there are no just causes for them to strain the law, yet there are such causes which, in all ages, have taken place, and probably always will. Nor was it, nor is it, possible, but that the great power of enriching, ho- nouring, and rewarding, lodged in the King, always had, and yet must have, an influence on the witnesses and jury; and there- fore it is, that the law has ordered, that at the King's prosecu- tion, no man shall be criminally questioned — this is a criminal question — no man shall be criminally questioned, unless a Grand Jury, i^wn their own knowledge, or upon the evidence given them, shall give a verdict, that they really believe the accusation is true *." Sir John's difficulty, in explaining " why a man should be arraigned on an Appeal of Murder, &c. without having the matter of the Appeal first found to l>e true by a Grand Jury," as on an in- dictment, is one which well deserves to arrest regard ; hut his solution, that "the reason of a Grand Jury is the vast inequality of the plaintiff * Trial of Count Coningsmark, State Trials, vol. iv, p. 4 also the over-ruling influence of the priesthood, as is thus described, in severe terms, by Blackstone : "The conscience's of men were enslaved by sour ecclesiastics, devoted to a foreign power, and unconnected with the civil state under which the\ lived, who now imported from Rome, for the first time, the whole farrago of superstitious novelties, which had been engendered b\ the blindness and superstition of the times, between the first mission of Augustine the monk, and the Norman conquest ; such as transubstantiation, purgatory, communion in one kind, and the worship of saints and images ; not forgetting the universal supremacy, and dogmatical infalli- bility of the Roman See.'' Blackstone, iv, 33.5. 80 of this world, is conformable to human views of justice*, the clergy of the age to which we are now referring are to be applauded, and not stigmatized, for their efforts to reduce their savage contempora- ries beneath the yoke of religion and morals. The clergy found the Law of Appeal ; they did not make it ; and they did the best that circumstances permitted — an apology which, on no occasion, will be slighted by rational inquirers. The Law of Appeal was attended (as, in a small degree, we have seen) by the most frightful evils. The great difficulty then, was not, as now, to get Appellors to fight, but to prevent ferocious and malignant Appellors from putting innocent men to the neces- sity of accepting their challenges, on unfounded charges of crime. Courage was then everv one's virtue, and fighting an every-day amusement: the clergy endeavoured to repress the conse- quent evils; and they taught — what, if it was impious, was at least humane and useful, — that not brutal force, but moral rectitude, would have • the better, in the appeal to arms. They endea- voured to implant — in minds that knew no other * That the Utter of the Gospel, at the least, countenances the doctrine of particular providence is certain ; since it telk us that God "suffers not even a sparrow to fall to the ground without his knowledge." We know, in the mean time, that pious men may believe in a particular providence, and yet not believe that it is employed, in this world, either to protect innocence, or to reward virtue. 81 fear — the fear of God*. The truth is, that Trial by Battle was established in Pagan Eu- * By liow many contrivances it was attempted to soften or humanize the process of Appeal, it would be a very agreeable part oi" a complete treatise on the subject to display ; and the result would be highly creditable to the character of the bar- barous ages. We have seen, in a former note, (page 36) the case of an Appeal of Murder brought by "a young child, against his father, grandmother, aunt and her husband." Now, an Appeal (as will presently appear) was anciently made or enforced only by Wager, or giving gage, of Battle ; and what sav the Assises de Jerusalem, upon the receipt of Gage of Battle, in other words, of allowing an Appeal, or Wager of Battle, by a son against his father, a father against his son, or brother against brother? Why, that it cannot be ! " II est assise au royaume de Jerusalem, que le Seignor ne doit rece- voir les gages de pere a fis, ne de fis a pere, ne de deus fraires, Pun contre l'autre." Assises, ch.cx. But, reverting to the fear which is to be impressed on the combatants in a Judiciary Duel, let us listen to the Commentator on the Customs of Nor- mandy. The combatants, preparatorily to Battle, are to ap- proach each other, to kneel together, to take each other by the hand, to be questioned as to their belief in the Father, the Son, and the Holy Ghost, and solemnly, by oath, to make charge on the one side, and denial on the other. Now, ac- cording to M. d'Alencon, " it should be known, that the reason why they fall on their knees, is in sign of humility and devotion ; and so, also, each takes the other by the hand, to denote the good faith which ought to be between human creatures, where there is brotherhood, and also to have immediate consciousness and dread of his adversary, whose hand lie holds; which impressions of the mind put a check upon falsehood ami audacity, and pro- duce a feeling under which men are more fearful of perjuring M 82 rope ; and that to Christian priests it owes the impiety (if we are to give it that name) of being themselves." "On doibt scavoir que la cause pourquoi ils semet- tent a genoulx est en signe de humilite et de devotion. Et aussi s'entrettennent par les mains, pour denoter la fealte que doibt estre entre humaine creature ou il y a fraternite, et aussi pour avoir memoire et doubte de son adversaire que on tient ; les- quelles chose sont cause de refrener de soy piurer, et d' orgueil, par doubte de paour : euquel estat ou doibt estre plus craintif de soy pariuer." Grand Coustumkr. A further example may also be given. It appears, that according to the law of Nor- mandy, (for we find no such usage at Jerusalem) both Appellor and Appellee, after giving their gages or pledges of Battle, are to be committed to prison, but maybe both admitted to bail, if they pi 'case, provided they produce good sureties. The text of the Grand Coustumier, after describing the giving of the gages, adds, " Non pourtant ils doibvent tous deux estrere tenus en la prison du Due ; et ce que droict sera a faire Battaille leur doit estre ottroye par la justice. Et si pent bailler 1' un et 1' autre envifue prison si leur plaist, pourtant que l'en les bailie fea- blement, a bons garens." " Lt les causes," says M. d'Alencon, sont, pour eschever les despens qu'on feroit en prison, aussi a fin que le corps de ceulx qui ont gaige Battaille soient a leur aise, et que ils n'empirent ne affoibleissent par raison de la prison, et aussi pour pouveoir a leurs necessites qui leur sont requises et profitables." That is, they may be admitted to bail, " in order to save them the expenses which are incurred in prison, and also to the end, that the bodies of men, who have pledged themselves to Battle, may be at their ease, and that they may not be injured nor weakened by imprison- ment, and also that they may provide themselves with such things as are needful and beneficial." Such is the ancient law; but, here, as every where else, in this inquiry, we are unable to advance a step, without convicting our modern practice of 83 regarded by Christians as dependant upon hea- ven for its issues. Paganism, indeed, may have viewed it with sentiments of equal impiety ; but still, in its origin, it was purely secular or human. 33. Poetry, too, which eagerly avails itself of religious impressions, and even of popular su- perstitions, because they belong to the heart and to the imagination, with which springs of action it is its peculiar privilege and function to be con- versant — poetry, too, has contributed to array the Judicial Combat with a religious character, by sedulously preserving every trace of public opinion of that nature. That " God will stand by the right," and that victory will wait upon truth, are notions inseparable from the first ideas of those that believe God to be the director of all things, and those ideas have consequently been always entertained. It is thus, to take a casual some grievous departure from its type. In the rule, that both the Appellor and Appellee shall be committed to prison, or held to bail upon good sureties, after giving their gages, we see the origin of that part of the Writ of Appeal (page 62) which requires pledges to prosecute, before, and as the only condition of, attaching the Appellee. But our mongrel and disgraceful system is, to attach the Appellee without previous information ; to reverse the order of taking pledges from the Appellor; and then to leave the Appellor at large, while the Appellee is imprisoned! 84 example, that Coenr de Lion, in the romance, when he is to fight the Saracens at Jaffa, exclaims, " Thorvvgli grace of God in Trinite, Thys day men schal the sothe i-see*!" The sentiment is a favourite one with Shakspeare, who says, " Thrice is he armed that hath his quarrel just, And he but naked, though locked up in steel, Whose conscience with injustice is corrupted t." And again, the expression, " I am armed so strong in honestyj." And immediately to the point is the speech given to Henry VI, on oc- casion of a Trial by Battle, between a certain Armourer and his Apprentice, on an Appeal of Treason : " Go, take hence that traitor from our sight ; For by his death we do perceive his guilt, And God injustice hath revealed to us The truth and innocence of this poor fellow, Whom he had thought to murder wrongfully." Now, if, turning from the poet, we go to the his- torians, for the account of this combat, (for the scene is founded upon an actual occurrence; we shall soon find that all this gloss of religion dis- appears, and that the unfortunate Armourer was defeated, as to human perception, not as an act of divine revelation, but through the ill-judged kind- Weber's Metrical Romances, t Richard III. J Julius Cassar. 85 ness of his friends, who plied him with Malm- sey and French brandy. "This yere," (anno 1445, twenty-fifth of Henry VI) says Grafton, "an Armorers seruannt, of London, appeled his master of treason, which offered to be tried by Battaile. At the day assigned, the fronds of the master brought to him malmesye and aqua- vite, to comforte him with all, but it was the cause of his and their discomfort: for he poured in so much, that when he came into the place, in Smithfelde, where he should tight, both his witte and strength fayled him : and so, hee, being a tall and hardie personage, ouerladed with bote drinkes, was vanquished of his seruaunt, being but a cowarde and a wretch, whose body was draw en to Ti borne, and there hanged and be- hedded*." * Grafton's Chronicle, p. 594. That the Battle, indeed, was more of a drunken bout, than a religious appeal, is not wholly forgotten by the poet, as appears on an entire perusal ot" the scene : — HENRY VI. PART II. Act II. Sc. 3. Enter King, Queen, York, and Salisbury. Scene. — A House mar Smilhjield. York. Please it your Majesty, This is the da\ appointed for the Combat ; And ready are th' \ppellant and Defendant, The Armourer and his Man, to enter the lists, So please your Highness to behold the fight. 86 34. Robertson, whose erroneous conceptions of the Judicial Combat, copied from Montes- Q. Mar. Ay, good my Lord ; for purposely therefore Left I the court, to see this quarrel try'd. K. Henry. A God's name, see the lists and all things fit ; Here let them end it, and God guard the light! York. I never saw a fellow worse bested, Or more afraid to fight, than is th' Appellant, The servant of the Armourer, my Lords. Enter at one door (he Armourer and his neighbours, drinking to him so much, that he is drunk ; and he enters with a drum before him; and his staff with a sand-bag fastened to it* ; and at the other door his Man, with a drum and sand-bag, and 'Prentices drinking to him. 1 Neigh. Here, neighbour Horner, I drink to you in a cup of sack : and fear not, neighbour, you. shall do well enough. 2 Neigh. And here, neighbour, here's a cup of charneco. 3 Neigh. And here's a pot of good double beer, neighbour; drink, and fear not your man. Arm. Let it come, i' faith, and Til pledge you all ; and a fig for Peter. 1 'Pren. Here, Peter, I drink to thee ; and be not afraid. 2 'Prcn. Be merry, Peter, and fear not thy master ; fight for the credit of the 'prentices. Peter. 1 thank you all ; drink, and pray for me, 1 pray you ; for, I think I have taken my last draught in this world. Here, P.obin, if I die, 1 give thee my apron ; and, Will, thou shalt have my hammer; and here, Tom, take all the money that I * With a sand-bag fastened to it. — As, according to the old laws of duels, Knights were to fight with the lance and sword; so those of in- ferior rank fought with an ebon staif or battoon, to the further end of which was fixed a bag, crammed hard with sand. To this custom Hu- dibras has alluded, in these humorous lines : " Kngag'd u ith money bags, us bold " As men with sand-bags did of old." 87 quieu, disfigure all his reasonings upon the sub- ject, has yet collected several facts which serve have. O Lord bless me, I pray God ; for I am never able to deal with my master, he hath learned so much fence already. Sal. Come, come, leave your drinking, and fall to blows. Sirrah, what's thy name? Peter. Peter, forsooth. Sal. Peter? what more ? Peter. Thump. Sal. Thump ? Then see thou thump thy master well. Arm. Masters, I have come hither as it were upon my man's instigation, to prove him a knave, and myself an honest man ; and touching the Duke of York, I will take my death I never meant him any ill, nor the King, nor the Queen ; and there- fore, Peter, have at thee with a downright blow. York. Dispatch : this knave's tongue begins to double. Sound, trumpets, alarum to the combatants. [77/(7/ fight, and Peter strikes him down. Arm. Hold, Peter, hold ; I confess, I confess treason. [Dies. York. Take away his weapon; fellow, thank God, and the good whir in thy master's way. Peter. O God, have I overcome mine enemy in this presence? O Peter, thou hast prevail'd in right. A'. Henry. Go, take hence that traitor from our sight, For by hi* death we do perceive his guilt. And God injustice has reveal'd to us The truth and innocence of this poor fellow, Which he had thought to murder wrongfully. Come, fellow, follow us for thy reward. [Exeunt. " The real names of these combatants were John Daveys and William Catour, as appears from the original precept to the sheriffs, slid remaining in the Exchequer, commanding them to prepare the barriers in Smithtield for the combat. The names of the sheriffs were Godfrey Bolovne and Robert 88 to guide his readers through the labyrinth in which himself was lost. After referring, as subsequently Blackstone, to Velleius Paterculns, to show, Home; and the latter, which occurs in the page of Fabiani's Chronicle that records the duel, might have suggested the name of Horner to Shakspeare. Stowe is the only historian who has preserved the servant's name, which was David. An- nexed to the befor-ementioned precept, is the account of ex- penses incurred on this occasion, duly returned into the Ex- chequer. From this it further appears, that the erection of the barriers, the combat itself, and the subsequent execution of the Armourer, occupied the space of six or seven days ; that the barriers had been brought to Smithfield in a cart, from Westminster; that a large quantity of sand and gravel was consumed on the occasion, and that the place of battle was strewed with rushes." " In Mr. Nicholls's ' Illustrations of the manners and expenses of antient times in England,' 1797, 4to. is the Exchequer Record of expenses in the Appeal John Daveys and William Catour." Donee's Illustrations of Shakespeare, vol. ii. p. 8. In this age of popular sobriety, a caution, to those who may have occasion to wage Battle, to beware of Malmsey and eau- de-vie, may be unnecessary ; and yet Mr. Poynder may add, with advantage, the case of the tipsy Armourer, to his valu- able memoir on Dram-drinking. But, for us, it is not perhaps impertinent to recollect, that the mistaken kindness of the Armourer's neighbours was only an abuse of the solemn pro- visions of the Law of Appeal, which called on the Lord, upon whose lordship the battle was fought, to provide the combat- ants fr< ely a manger it boire ; especially as this particular is further connected with some other just and grave considera- tions, belonging to the process, and which further show the humanity, or at least the justice, of the barbarous ages. See page 81, note. 80 that all questions which were decided among the Romans by legal trial*, were terminated among the Germans by arms ; and to Stiernhook for a corresponding custom among the ancient Swedes, this writer adds, " It seems likewise to be pro- bable, from a law quoted by Stiernhook, in the treatise I have just mentioned, that the Judicial Combat was originally permitted, in order to determine points respecting the personal cha- racter, or reputation of individuals, and was afterwards extended, not only to criminal cases, but to questions concerning property. The words of the law are, " If any man shall say to another these reproachful words, ' You are not a man equal to other men,' or ' You have not the heart of a man,' and the other shall reply, ' I am a man as good as you ;' let them meet on the highway. If he who first gave offence appear, and the person offended absent himself, let the latter be deemed worse than he was called ; let him not be ad- mitted to give evidence in judgment, either for man or woman, and let him not have the privi- lege of making a testament. If the person of- fended appear, and he who gave the offence be absent, let him call upon the other thrice, with a loud voice, and make a mark upon the earth; and then let him who absented himself be deemed * By the phrase " legal trial," Robertson means, not "lawful trial," but " trial at law," or by civil process. N 90 infamous, because he uttered words which he durst not support. If both shall appear, properly armed, and the person offended shall fall in combat, let a half compensation be paid for his death ; but, if the person who gave the offence shall fall, let it be imputed to his own rashness. The petulance of his tongue has been fatal to him : let him lie in the held, without any compensation being paid for his death." Lex Uplandica, ap. Stiern. p. 76. By the law of the Salians, if a man called another a hare*, or accused him of having left his shield in the field of battle, he was ordained to pay a large tine. Leg. Sal. tit. xxxii, § 4. 6. By the law of the Lombards, if any one called another arga, i. e. ' a good-for-nothing fellow,' he might immediately challenge him to combat. Lex Longob. lib. 1. tit. v, § 1. By the law of the Salians, if one called another cenitus, a term of reproach equivalent to arga, the fine which he was bound to pay was very high. Tit. xxxii. § it- 35. In the paragraph that is now finished, we possess, as I persuade myself, the whole secret of the very humble and secular origin of Trial by * This passage probably explains many superstitions con- cerning 1 lie hare. It was an ill omen for a hare to cross the march of mi army; doubtlessly because the animal was the symbol of cowardice and flight. f Robertson, Charles V, vol. I, note xxii. 91 Combat. " Personal character or reputation of individuals' — the vindication of that character — is the sole principle on which it rests; — mid honour — in the lawful duel of the Judicial Combat, as in the unlawful duel of the present day — is the thing sought to be defended. Whatever is the offence with which the accuser charges the ac- cused, the courage to make good the assertion is that to which the accuser lays claim — and to lay the foundation of Battle, the lie must first be given on both sides. This done, the honour of each party is at stake ; and the principle, That a brave man will utter nothing which he is not ready to defend by his body, is that upon which the weapons are raised. We have seen, (page 63) from the form of a Count of Appeal, as in use among us at this day, that the first step of an Appellor against an Appellee, is to chal- lenge a denial of the charge: " And this, if he will deny," &c. So again, preparatorily to the combat, the Appellee, having sworn to a denial of the charge, the Appellor exclaims, " Hear this, O man, whom I hold by the hand, who callest thy- self Thomas by the name of baptism, that thou ART PERJURED, AND THEREFORE PERJURED, be- cause that thou didst feloniously murder my father, &c." Thus, it is the imputation of perjury ■ — the personal dishonour — which is to be wiped away — and not a divine revelation which is to be sought — by the Judicial Combat. 92 36. But I am to show, that it is the Appellor, and not the Appellee — the Plaintiff and not the Defendant — who is, in reality, the original chal- lenger to the combat ; a proposition which is to be maintained with extreme facility, since nothing is more idle than to suppose that Battle is a something added to a pre-existing law of Ap- peal; — since Battle was, in reality, the thing immediately sought by the ancient process of Ap- peal ; — since, as I shall establish, there was ori- ginally no Appeal without Battle ; — and since, as I now, and hereafter, shall emphatically and fearlessly assert, The true general maxim of our law is, that where there can be no Battle, there can be no Appeal. 37. Blackstone, who only talks in the popu- lar strain concerning Trial by Battle, gives the following account of the process in Appeals of Felony ; — an account which appears to agree generally with the practice of our Courts — though it is deficient as to the Count of Appeal — but which I must presently take leave to com- pare with the accounts in original and more ancient authorities. " The Appellee," says the Learned Commentator, "when appealed of felony, pleads not guilty, and throws down his glove, and declares, he will defend the same by his body ; the Appellant takes up the glove, and replies, that he is ready to make good the Ap- 93 peal, body for body; and thereupon the Appellee, taking the book in his right hand, and in his left the right hand of his antagonist, swears to this effect : ' Hoc audi, homo, quem per manura teneo, &c.' ' Hear this, O man, whom I hold by the hand, who callest thyself John by the name of baptism, that I. who call myself Thomas by the name of baptism, did not feloniously murder thy father, William by name, nor am any way guilty of the said felony. So help me God and the Saints ; and this I will defend with my body, as this Court shall award.' To which the Appellant replies, holding the Bible and his anta- gonist's hand in the same manner as the other, ' Hear this, O man, whom I hold by the hand, who callest thyself Thomas by name of baptism, that thou art perjured, and therefore perjured, because that thou feloniously didst murder my father, William by name. So help me God and the Saints ; and this I will prove against thee by my body, as this Court shall award.' The Battle is then to be fought, &c." Now the reader is al- ready warned, that this account is defective, inasmuch as it does not include the words in which the Appellee is " appealed of felony;" a deficiency by means of which it conceals the im- portant fact, that the Appellant is the party chal- lenging to combat, and the Appellee only the party receiving and accepting the challenge ! This important fact, too, the modern introduc- 94 tion of some ambiguous words (of which it is easy to give the history and explanation) serves partly, but not wholly, to conceal. The existence of a lurking challenge was to be conjectured, from the remaining terms of the Count ; and it is to be found undisguised in the original formula and process. 38. In the work entitled Le Grand Coustu- mier de Normendie, prosecution for murder, by Appeal, is said, in the text, to be " conducted in this manner : — R. complains of L., who has murdered %his father feloniously in the peace of Cod and of the Duke, and that he is ready to prove it, and make him acknowledge it, en une heure du jour* ;" and the commentary declares, " From this text may be learned how prosecution for murder is conducted by Wager of Battle^." * " Suyte de meurdre doibt estre faict en ceste maniere. R. se plaint de L., qui a meurdry son pere felonneusement en la paix de Dieu et du Due, que il est prest de prouver, et de lui faire congnoistre, en une heure du jour." Le Grand Cous- tumier du Pais et Duche de Normendie, &c. &c. Avec pleu- sieurs additions, &c. Par scientihque personne maistre Guil- laume le Rouille d'Alencon, &c. Rouen. 1539. fol. De Suyte de Meurdre. chap, lxviii. fol. lxxxvii. " En une heure dujour," literally " in an hour of the day." Does this expression import " forthwith," or " at any time," or " in the twinkling of an eye ?" t " Par ee textc peut apparoir come len faict suyte de meur- dre par gaige de Battaille." Ibid. 95 How prosecution for murder is conducted, when not by Wager of Battle, that is, when not at the " suit of the party," but at the suit of the sove- reign, is the subject of a second discussion, in the same work and chapter. Further, the com- mentator, M. d'Alencon, adds, that there ought to be information precedent before murder is prose- cuted by Wager of Battle*; and, upon investiga- tion of this point, we shall discover, that before we come to Blackstone's " Hoc audi," and de- claration of the Appellee, that he will defend the plea of not guilty by his body, the Appellant has made his charge, and offered to prove the same by his body ; and that the " Hoc audi " is only the Appellee's challenged denial, " de mot en mot," of the charge, and a declaration, that he is ready to defend his denial in like manner. 39. But the question is placed in a still clearer light by the more ancient volume of the Assises de Jerusalem ; between which, and the Grand Coustumier de IVormendie, there are some variations. U\ this latter work, part of the process of Appeal is described as will be now seen. The passage quoted occupies the eighty- seventh chapter, of which the title is this : " What ought to be done and said by one who makes an * " On (loiht scavoir quit convient quil y ait information precedente, -.want que leu puisse faire suyte de meurdre par paigc de Battaille.'' Ibid. m Appeal of Murder, when the murderer is present in Court, and he has appealed him." The chapter runs thus : " He that will now make Appeal of Murder, of a man, woman, or child, who is mur- dered, and shown to the Court, as is before said, (he or she whom he appeals being present in Court) ought to cause to be said in the Court, by his counsel, ' Sir, such-an-one complains to you of such-an-one, who here is, who has murdered such-an-one ; and if he denies it, he is ready to prove it by his own body against his, and he will make him dead or recreant en une oure doujour; and here is his gage :' and the counsel names all the three; the Appellor, the Apellee, and the murdered person ; and then the Appellor kneels before the Court, and presents his gage *." * " Qui veaut maintenant faire Apeau de Murtre, d'ome, ou de feme, ou d'enfant, qui ait este murtri et mostre a Court, si com est devant dir, et celui ou cele que il veaut apeler est pre- sent en la Court, il doit faire dire en la Court, par son conseil, ' Sire, tel se clame a vous de tel, qui la est, qui a tel murtri; et se il le noie, il est prest que il en preuve de son cors contre le sien, et que il le rende mort ou recreant en une oure dou jour; et vees ci son gage:' et nome tous trois, l'Apeloir et l'Apele, et le murtri. Lors s'agenouille l'Apeleoir devant le Seignor, et li tent son gage." Assises et Bons Usages du Royaume de Jerusalem ; tires d'un Manuscrit de la Bibliotheque Vaticane. Par Jean d'Ibelin, Comte de Japhe, &c. &c. Paris, 1690. fol. Chap, lxxxvii. " Qui veaut faire Apeau de Murtre, et le Murtrier est en la Court present, que il doit faire el dire quant il la apele." 1)7 So, again, in Appeal of Homicide, the same Wager of Battle is offered by the Appellor : — " He that will to make an Appeal, of a man, or woman, or child, or other, who has been killed otherwise than in murder, and to give effect to his Wager of Battle, (metre soi en droit gage) if his adversary is unable to avoid it, (ne sen salt garder) causes to be said as follows to the Court, in the presence of him whom he desires to ap- peal of the offence, after the body and the wounds have been shown to the Court, as is be- fore said : — ' Sir, such-an-one (naming him) com- plains to you of such-an-one, who here is, who has killed (murtri) such-an-one, and given the wounds of which he is dead; and if he denies it, he is ready to prove it by his own body against his, and to make him dead, or else recreant, en line oure doujour: and here is his gage.' And if he, con- cerning whom the complaint is made, denies the charge, and puts himself on his defence, and presents his gage, then, he that is of counsel for the Appellor says as is before said, &c* " It is only after this elucidation, that we can fully un- derstand the brief account contained in the Grand Coustumier de Normendie, and detect the deficiencies in that of Blackstone. " It. complains," says the Grand Coustumier, " of L., that he has murdered his father feloni- ously, &c/' and is ready to prove the same [hi/ Battle] en une heure du jour. If L. denies it * Idem, chap. ex. O 98 word for word, (see Blackstone's " Hoc audi," above) and puts himself on his defence, and pre- sents his gage, the Court ought first to take the gage of the Appellee, and then that of the Appellor, and each ought to give pledges to submit them- selves to the law. It is here plain, that the wager, or tender of pledge of Battle, comes first from the Appellor, as we have seen more ex- pressly from the Assises de Jerusalem. For the rest, why the gage of the Appellee is to be first taken by the Court, though not tendered till after the gage of the Appellor has been given, appears from the comment on the text : " The gage of the defendant should be taken first ; and the cause is, that it is he who is suspected, and charged by information." If the Appellor's gage were presented first, there could be no need to explain whyitshould be firsttaken. The commentary, in- deed, adds, " That the Appellee ought first to throw down his gage, and the Appellor afterward *." But here the Commentator not only mistakes the practice which we have seen so rationally de- tailed in the Assises de Jerusalem, but also stultifies his own explanation. I submit, hence, that in the modern practice of our Courts, there is an important departure from the ancient forms * " Len doibt premierement prendre le gaige du defendeur : et la cause est ce qu'il est soupconne et charge par informa- tion, qu'il le prentet lye, et pour ce on prent premierement son gaige, et apres on prent celuy de l'acteur." Le Grand Coustu- mier. 99 and reason in prosecution for felony by Appeal, and that the order of the proceedings should be, First, that the Court is to be satisfied that there is good reason for obliging the accused to answer the summons of the Appellor*; secondly, that the * " On doibt scavoir qu'il convient qu'il y ait information precedente, avant que len puisse faire suyte de raeurdre per Gaige dc Battailh." Le Grand Coustumier. In what manner information prtctdente is to be obtained, has already been partly seen, from the Assises de Jerusalem, where we have found that the body of the murdered person is to be shown to the Court ; but the following, from the same volume, is more full : — " He that will make Appeal of Mur- der ought to cause the murdered body to be brought into the front of the mansion of the Lord, or to the place to which it is customary to bring murdered bodies ; after which he should present himself to the Lord, and demand Counsel to be given him; and when he has obtained Counsel, his Counsel should say, ' Sir, send, and cause a view to be taken of the body which lies here, and which has been murdered ;' and the Lord should then send three of his people, one in his own stead, and two as a Court 1 ; and the three men whom the Lord sends, should go and view the body, and then return to the Lord, and say, in the presence of the Court, ' Sir, we have viewed the body which you sent us to view, and have viewed the wounds which are upon it;' and here say how many wounds there arc, and in what part they are, and with what they appear to them to have been given. And if there are no wounds, and there is any other sign of murder, they should tell it to the Lord ; and if there is no sign on the body, from which it seems to them to have been murdered, they should say to the Lord, ' Sir, we have viewed the body, and we have seen neither bruise i Is this the origin of the appointment of three judges to the bench of every Court of Law? And have we here, also, the rudiments of 3 Coroner's Jr.rr ? 100 Appellee, if permitted to prosecute, should pre- sent his pledge of Battle ; and, thirdly, that it nor wound, nor any thing from which it seems to us to have been murdered.' And, now, if there is on the body any thing from which it seems that it has been murdered, according to what has been reported to the Lord, in the Court, he that will make Appeal, ought to say, by his Counsel, ' Sir, such-an-one complains to you of such-an-one, who has murdered such-an-one ; let him come into your presence, that you may hear how he uill support his complaint ;' and the Counsel should call all the three by their names, and tell their surnames, if he knows them : that is to say, his for whom he is Counsel, his whom he charges with the murder, and that of the murdered person. And now the Lord ought to make search after him who is charged with the murder, if he is not of his own lordship, and lodge him in his prison; and now, when he has him in his power, should make known the same to the complainant." — " Qui veaut faire Apeau de Murtre, il doit faire apporter le cors murtri devant li hostel dou Seignor, ou a leuc que il est establi que Ton porte les murtris ; aprez doit venir devant le Seignor, et deraander Conseiil ; et quant il aura Conseiil, si die son Conseiil : ' Sire, mandez faire veir ce cors qui la val gist, qui a este murtri.' Et le Seignor y doit alors envoyer trois de ses homes, 1' un en son leuc, et deus com Court; et les trois homes que le Seignor y envoie doivent aler veir ce cors, et puis revenir devant le Seignor, et dire li, en presence de la Court, ' Sire, nous avons veu ce cors que vous mandas- tes veir, et avons vehu le cos que il a;' et doivent dire quant cos a, et en quel leuc il les a, et de quel chose il lor semble que il aient este fais. Et se il ni a cos, et il y a aucun autre entresigne par que il lor semble que il a este murtri, il le doivent dire au Seignor; et se il n'avoit aucun entresigne en celui tors, par que il lor semble que il ait este murtri, il doivent dire au Seignor, ' Sire, nous avons vehu ce cors, et nous ni avons veu nul cos ue blessure, ne nulle chose par que il nous semble que il ait este murtri.' Et se il y a en eel cors aucune 101 should be in the choice of the Appellee, either to plead guilty, or to present his pledge of Battle chose parquoi il semble que il este murtri, maintenant, apres ce que les trois devant dit auront dis au Seignor, en la Court, celui qui veaut faire l'Apeau doit dire, par son Conseil, au Sei- gnor, ' Sire, tel se chime a vous de tel, qui a tel murtri; faites le venir en vostre presence, si ores com il portera son clam contre lui :' et l'avantparlier doit nomer tous les trois par lor nora, et dire lor sournotns, se il le set; ce est assavoir, celui a qui Conseil il est, et celui seur qui il met sus le murtre, et le murtri. Et maintenant le Seignor doit faire querre celui a qui on met sus le nieurtre, se il n'est son home, et metre le en sa prison ; et maintenant que il l'aura en son pooir doit le faire savoir au Clamant. Et il me semble que se le Seignor veaut bien faire, il doit mander a celui qui est arre»te pour le murtre trois de ses homes, l'un en son leuc, et les deus autres com Court, et celui qui est au leuc dou Seignor li doit dire, ' L'on te met tel murtre sus; content et pourquoi le fis tu, et qui fu o toy a faire le I" &c. Assists, Ch. lxxxv. — From all the foregoing, it will be seen, that, as early contended for in the text, the prosecution for Murder by Appeal was never anciently contemplated but as the first and only process against the accused, and that its em- ployment to procure a second criminal trial is as grievous an abuse of the law of our ancestors, as it is of the rules of le- gislative justice. The Assises de Jerusalem is full upon the subject of preventing the accused from being exposed to a second challenge to Battle*. Had he pleaded, in the ancient "ourts, that he had already fought an Appellant in the ease, does any one doubt that this species of information prtctdenle would have been held by the ancient Courts as a complete answer to the Appeal I and what is now so easy, as well as so just, as for Parliament to enable our modem Courts to tread in their steps ? : Battaillc," s;i;.s the \?out de celle Court deifendre et. aleauter la doivent de lors cors contre celui qui la veaut fausser : car Court qui est faussee ne peutpuis faire esgard.ou conoissance, loa on the corresponding situation of the witnesses, including the bringer of an Appeal. The Ap- ou recort, qui soit vaillablc se aucun veaut dire alencontre : car, enci com home attaint, vaincu et prove de faussete, ne peut porter garantie, auci ne peut porter home qui soit de la Court fausse garantie qui soit vaillable qui alencontre veaut dire, ne la Court faussee ne peut puis faire esgart, ne conoissance, ne recort qui soit vaillable qui veaut dire alencontre, et tous ceaus de celle Court ont perdu a tous tens et vois ct repons en Court, et ne peut plus nul des eaus loyal garantie porter, pource doit chascun d'ayus prendre le fait sur soi en la maniere devant dite. Et se celui qui a dit aucune des avant dite choses contre la Court, pour la Court fausser, si com est dessus dit, et li tent sont gage contre tous ceaus de la Court et le recort, aud quant il [s] sont au champ, pour la Bataille faire, il doit estre d'unc part, et tous les homes d'une autre, et une des homes, lequel que il ehliront, se doit premier combatre vers lui soul a soul ; et se celui qui est party est vaincu, mainte- nant se doit mouvoir un des autres en quelque point que celui qui vodra la Court fausser sera, et se il vainc maintenant eel autre, un autre doit maintenant se mouvoir, et enci se combate •a tous, un a un, et se il ne vainque tous en un jour, il doit estre pendu. Et se aucun de ceaus de la Court dit apres une des dites choses, et retrait qui a ce fait, et aucun die, ' Je lay fait,' et il n'en face mention de la Court, l'autre peutbien dire a tous ceaus qui se diront, ' Je dis, que vous dites, que vous aves ce fait ; et dis, que l'aves fait faussement et delhoyaument ; et se vous voles neer, je suis prest de provcr le vous de mon cors contre le vostre, (on les vos, se il sont plusiors) et rendre vous moi t ou recreant en une oure dou jour ; et vees ci mon gage ;' et li tend au Seignor, et a tous ceaus qui se auront dit sc peut combatre sans la Court fausser: et [se] celui ou ceaus que Ton enci faussera ne s'en deffendent et aloyautent de lors cors, il sont attains d'estre faus ou delhoyaus, et ont 109 pellor might impeach all or any of these, contra, diet them, or say that they are themselves at- tainted, infamous, &c. and challenge them to Battle; so, that as is said in the Assises, "a man or woman bringing an Appeal of Murder incurs the peril of a shameful death." " Not only," says Robertson, (referring to these facts) " might parties, whose minds were exaspe- rated by the eagerness and the hostility of opposition, defy their antagonist, and require him to make good his charge, or to prove his innocence, by his sword ; but witnesses, who had no interest in the issue of the question, though called to declare the truth, by the laws which ought to have afforded them protection, w r ere equally exposed to the danger of a challenge, perdu vois et respons en Court a tons tens ; et se il plusiors sont, il se doit combatre a tous, tin a un, com il est dessus dit ; et se il les vainc tous, pour ee n'est pas la Court faussee, et ne pert rien de son honor, et le jugement que elle a fait est estable, et tous ceaus que il vainquera seront pendus, et il sera pendu se il est vencu. Et se plusiors die, ' Nous feimes ee,' et il ne s'en veaut prendre que a un, il ne pent faire auquel que il vodra de ceaus que l'auront enci dit, car il ne dit rien contre la Court ; et se il se prent a plusiors, et il les [ne] vainc tous en un jour tous ceaus contre qui il se doit combatre, il doit estre pendu, et tous ceaus que il vaincra le doivent estre auci ; ne pour mil de ceaus que il vainque tous les veinquist il tous ne doit demurer que I'esgart on la conoissance que la Court aura fait ne doie estre tenus ; car il n'a pas la Court faussee." Assises de Jerusalem, ch. cxi. 110 and equally bound to assert the veracity of their evidence by dint of arms. To complete the ab- surdity of this military jurisprudence, even the character of a Judge was not sacred from its vio- lence. Any one of the parties might interrupt a Judge, when about to deliver his opinion; might accuse him of iniquity and corruption in the most reproachful terms; and, throwing down his gauntlet, might challenge him to defend his inte- grity in the field : nor could he, without infamy, refuse to accept the defiance, or decline to enter the lists against such an adversary." While, however, I avail myself of the authority of this celebrated and accomplished writer, to confirm, by his extended reading, the historical matter in hand, I must here, as in other places, protest against the spirit in which he has treated of it. He seems not to have observed the coincidences of the maxims of this " military jurisprudence," with those of our own civil system, as to what relates to the general character and credibility of wit- nesses, and as to exceptions to the opinions and conduct of Judges. With respect to the latter, too, he, in his turn, in a manner, falsifies history, by omitting to caution his readers against con- founding the military judges (homes de la Cour) who are in question, with the gownsmen of our modern Courts; thence producing a change of character which wholly alters the scene, and vi- tiates our judgment upon its merits. The truth Ill is, that we sec, in what has been presented, the rugged and perhaps unsightly ore of that metal with whose weight and lustre we are still de- lighted ; the seeds of those liberties, and the foun- dations of that practice, upon which, to this day, we set so high, and so deserved a value. In ad- dition, let it be observed, that here, too, we see the foundation of our law of libel, and of all our law of character, with only the simple sub- stitution of civil for military remedy. Whoever spoke ill of another, was bound to defend what he said by his sword, as he is now bound to defend it in a Court of Law ; and is it not evi- dent, that civil remedy for libel is not founded, as has been idly advanced, upon a fiction of its tendency to a breach of the peace, but on a reality? and that wherever men are wronged, they must be allowed, either their remedy at law, or to seek their own remedy by their bodies ? 4-_>. But the design of the slight research in which we have now indulged, is not that of amusing ourselves with accounts of ancient cus- toms, but the discovery of the principle upon which those customs were founded and sus- tained ; and we have now, I think, distinctly seen, that the basis of all .Judicial Combats is, not that which has been asserted and echoed by so many eminent lawyers, historians, and philo- 112 sophers, and from these adopted by the multi- tude — the principle of a divine decision, and an identity with Trial by Ordeal — but a principle exclusively of " honour" and "disgrace;" of re- putation and infamy ; — and the maxim, (of the merits of which we will here say nothing) that a man is not to utter that which he dares not defend by his body. We shall even find, in what we have just seen, (and it will strengthen the posi- tion) the origin of the phrase " good men and true/' in the description of Jurors, (the Judges, homes de la Cour, intended in our quotation; for from these our Jurors have sprung. The op- posite of true is false ; and to be false men, was what was imputed to them by him who chal- lenged them to fight. To be " true men," was, in the language of the Norman Courts, d'etre homines loyauoc, or homines qui ont de la loyaute. But the act of fighting in defence of their truth is, in the passage that has been cited in the note, expressed by the obsolete verb aleauter or aloy- auter, whence saloyautcr, to justify oneself, or to approve one's truth. The French language retains, at this day, no other traces of this verb, than that of the impersonal verb, aloyer, " to bring metal to its proper standard," or truth; and the noun substantive aloy, the substance employed for that purpose. " Alloy" (the English word) signifies base metal ; but that base metal, makes 113 the compound standard or true*. Thus s'aloyer, or saloyauter, implies, in the text quoted, the act of defending one's truth or character by Battle, and not that of appealing- to God to make it evident ; unless to the act Ave chuse to add a persuasion, that God will preside over it, and that it will not, as in the words of Solomon, be " left to time and chance.*' And thus, whether it is impious or not, to expect the divine interpo- sition on its occurrence, Trial by Battle, which essentially refers to no divine interposition, is not impious. 43. But it will be an additional proof that Trial by Battle is not a mode of Trial by the Judgment of God, and, beside, serve our Argu- ment in other respects, if we can show, That Trial by Ordeal, or the Judgment of God, ac- tually forms part of our criminal jurisprudence at this day, and subsists in a form which will be generally thought directly opposite to Trial by Battle ; namely, in our Criminal Trials by Jury, — It is known, that a culprit, on being arraigned, is required to plead, either " guilty," or " not * Is it not hence that we should derive the modern French verb impersonal, aloycr, in opposition to the various sugges- tions of English and French etymologists ? " .Mover," say the dictionaries, " to bring gold or silver to a light standard." Is not this " la loyer," (" la loyauter") to make the metal " true" or just 1 114 guilty," as a necessary preliminary to his trial ; and that upon pleading " not guilty," he is asked " how he will be tried," to which he is to reply " By God and the country." The origin and meaning of the introduction of the name of God into this reply has been differently ex- plained ; and a learned author, as cited by Blackstone, has suggested, that " the proper answer is, ' By God or the country ;' that is, by Ordeal, or by Jury ; because the question sup- poses an option in the prisoner." — This con- jecture is probably erroneous. Among the most ancient and universal modes of trial, appear to have been, 1. The Oath of the party; 2. Wager of Law; .3. Wager of Battle; and, 4. Ordeal, Judicium Dei) or Judgment of God. To these have succeeded, 5. The Trial by Judges; and, 6. The Trial by Jury, or by " the Country." The trial, then, by Jury, or by " the Country" found the Trial by God previously existing ; and at its introduction, among a people accustomed to rely on the " Trial by God," it was necessary to accommodate the feelings, and therefore to con- tinue, in some degree, the language, which had been previously held in respect. To have rejected the " Trial by God" would have been regarded as impious; the wisdom of the legislator, therefore, was content to blend it with the Trial by Jury ; and the culprit was made to say, that he would be tried by God, either conjointly with, or 115 through the ministration of, the Country or Jury. Nor was such a practice inconsistent with the progress of religious philosophy, which, while it now taught mankind to regard even as sinful the expectation of immediate and mira- culous interpositions of Providence, yet ear- nestly inculcated a belief in its presiding in- fluence, and could represent the act of God to be as distinctly visible in the production and veracity of human witnesses, and in the enlight ening of the minds, and disposing the hearts of a Jury, as it could be if it had made " trees to speak, and stones to move" — fables which required the credulity of an earlier age. The proper an- swer, therefore, is, " By God and the Country ;" that is, by both ; and the culprit has no option. The words are merely a form in which he is in- structed to join issue with his prosecutor, in the hope of that " good deliverance" which he is never precluded from the hope of obtaining from " God and the Country," to whose united trial he commits himself. Thus the Judgment of God appears in the daily practice of our law, much rather than in Trial by Battle. 44. A writer has recently said, il I incline to consider this proceeding [Trial by Battle] as much obsolete as the Ordeal; and am almost as much surprised to find it for a moment enter- 116 tained, as I should be to hear of an appeal to the Judicium. Dei ; and, in fact. Wager of Battle is nothing- else." * ; It is undeniable, that Wager of Battle was once a legal proceeding ; but so was the Ordeal. Mr. Barrington could not discover when the Ordeal was abolished ; nor when the Wager of Battle was abolished ; but surely the good sense of the Judges will presume, &c."— Trial by Ordeal, like Trial by Wager of Law, or Compurgation*, was part, and a most popular * Wager of Law (vadatio legis) is so called, because the parties gave pledges or gages (vadii) to try the suit by Battlel; so, here, the pledges were given to comply with the law. " The manner of waging or making law," says Blackstone, " is this : he that has waged or given security to make his law, brings with him into Court eleven of his neighbours — for by the old Saxon constitution, every man's credit in Courts of Law de- pended upon the opinion which his neighbours had of his ve- racity. The defendant, then, standing at the end of the bar, is admonished by the Judges of the nature and danger of a false oath ; and if he still persists, he is to repeat this or the like oath, &c." And thereupon his neighbours or compur- gators shall avow [aver] upon their oaths, that they believe in their consciences that he saith the truth ; so that himself must be sworn de jidelitate, and the eleven de crediilitate." These oaths incur a discharge of the defendant. Black- stone, insists that the number of compurgators must be eleven, in order to make, with the defendant, the number of twelve ; and, after the institution of Juries had really made progress in this kingdom, it is very probable that the number eleven was in some measure fixed. But the regulated number 117 part, of the Law of the Land, at the Norman Conquest. It was in high favour with our Saxon ancestors ; it was particularly valued in the trials of women, who could not defend them- selves by Battle, and who, perhaps, could not, so easily as men, bring a host, of Compurga- tors to answer for their innocence*. The trial or deliverance could indeed suit few or none beside those of some standing in society ; and hence the poor of both sexes must have looked upon the Ordeal as their rock of safety. The earnest- ness with which the nation clung to both, is mani- fested by the existence of numerous Charters, or grants of desired privileges, in which, in bar of the Norman policy, Ordeal and \A ager of Law were permitted. Trial by Jury had little or no popularity; Trial by Battle had its dangers ; and was, in some instances, as high as forty, and the primitive notion seems to have been, that the number of compurgators on the part of the defendant, should lie double that of the witnesses on the part of the plaintiff; whence we may account for the doctrine of Fleta, who thinks four or six compurgators sufficient, and the information conveyed by Robertson, who asserts that they were sometimes as many as three hundred. Blackstone countenances a notion, that Wager of haw is so called in contradistinction to Wager of Battle; but of this more hereafter. * Hence the practice of attempting to drown witches. This is the Waaler Ordeal ; and witchcraft was anciently, as now, ? foremost crime of women ! 118 Ordeal and Wager of Law were much the easier roads to acquittal under all accusations. One or both of these were included in the name of Free Law, in contradistinction to Jury and Battle. Though the church condemned the Ordeal*, its ministers were compelled to yield to it ; and there are various grants by King John, to the bishops and clergy, to use the Judicium Ferri, Aqua?, et Ignis, which, to make the best of it, was only performed in the churches, or on other consecrated ground. The same King granted charters to several cities, securing to them, either trial by the ancient law generally, or by oath or corsned^, or by compurgation, * " Cum sit contra praeceptum Domini, Non tentabis Domi- num Deum tuum." t The Corsned, or morsel of execration, was a mode of trial by the single oath of the party accused. The Corsned was a piece of bread or cheese, of about an ounce in weight, which the person swearing was made to swallow, first praying of the Almighty that it might cause convulsions, paleness, or find no passage, if he were guilty, &c. To this form, the Church added consecration of the morsel, and finally substituted the kissing of the Bible, with an appeal to God and the Saints. Blackstoue remarks, that the remembrance of the custom still subsists in certain phrases of the common people ; as, " I will take the sacrament upon it ; may this morsel be my last, and the like." The custom is natural, and therefore ancient; it is prescribed in the Mosaic law ; and an example of its practice occurs in the New Testament, in the story of Ananias and Saphira. It exists among us at this day, but only in an in- verted form. By the ancient practice, a single oath was conclu- 119 more particularly. Trial by Battle, and Trial by Jury, were the objects of aversion*. The Norman priests, who, though they were not sive on the side of the defendant ; in onr modern Courts of Conscience, a single oatli is conclusive on the side of the •plaintiff'. * The reader sees the absurdity of supposing that either King John, or the other royal subscribers to the great Charters, were urged by the popular voice to make the Judgment of a man's Peers the only law of the land ; when, in realitv, the superstitious customs — and the reliance on purgation — and com- purgation — were the darling laics of tiie people — were what they called their Free Law : in absolute opposition to Trials by Battle and by Jury, which were pressed upon them by their conquerors — were what, therefore, they prized, in the highest manner, as their liberties — and the continuance of which they were anxious to buy, to beg, and to seize, at the hands of the Sovereign — which individuals sought for them- selves, and corporations for their communities ! Of proofs of the latter proposition, from City charters, enough is seen in the text ; and of proofs of that which went before, the sub- joined is one example. In Madox's History of the Exchequer, p. 29fi, we find " Walter de Burton paying ten Marks for Free Law, in an Ap- peal for Wounding." The Conqueror granted to the English, that if appealed by Frenchmen, they may have their choice either of Battle or of Ordeal; but it would have been no favour, in the estimation of those days, to substitute Trial by Jury:—" In the laws of William the first, it is decreed, that if a Frenchman Appeal an Englishman of Perjury, Murther, Theft, Man-slaughter or Robbery, ' Anglicus se defendat per quod melius voluerit ; aut Judicio Jerri, aut Duello.'" Sei- dell's Duello, ]>. 12. 120 absolutely the first messengers of Christianity in England, found the Saxons pretty largely imbued with Paganism, brought with them the Canon Law, which declared Trial by Ordeal to be a fabrication of the Devil. The same law had so declared it, in Denmark, a century before ; but the Saxons were still but little disposed to part with it. Trial by Jury, as well as Trial by Battle, had certainly existed under certain forms, and to a certain extent, in England, under our Saxon and Danish kings ; but the Normans brought both into more frequent practice, and eagerly endeavoured to establish them in England, to the suppression of Compurgation, and still more to that of Trial by Ordeal. The people of England regarded this as a hardship ; and Magna Carta, so far from describing the Trial by Jury as " the law of the land," as is sometimes repre- sented, has, I am persuaded, expressly intended to save to the people the concurrent existence of other modes of trial, particularly those of Compurgation and of the Judgment of God*. * The words of Magna Carta arc singularly strained, when they are made to say, that " no freeman shall be arrested, im- prisoned, (faciat Duellum) within the City, upon any Ap- peal that any 'person may bring against him, "but shall purge himself by the oaths of forty lawful men of the said City* ;" a passage which throws further light on that contained and reite- rated in the Charter of the City of London, because it explains what it is for the citizens to " discharge themselves, of the pleas belonging to the crown according to the ancient custom of the cityf." It is remarkable, that the last ex- press mention of the privilege in view, in the Charter of London, is in a charter of Henry III J, and that it is there accompanied by a restric- tion upon the " ancient customs of the city," and, by the substitution, in the case described, of the verdict of a Jury, for the single oath of a party. This seems to corroborate the accounts * " Quod nullus Civis faciat Duellum in Civitate, de aliquo Appello quod quisquam versus euin facere possit, sed purgabit se per sacramcutum 40 hominuui ipsius Civitatis, qui legale.!, sunt." t How they ar that Battle was " not much used in England till after the Conquest*." 50. The sum is, that either Appeals have had no ancient existence without Battle; or, that when they existed without Battle, they did not contemplate the death, or capital punishment, of the offender. If Blaekstone is right in his conjec- ture, that modern Appeals are deducible from the ancient process for enforcing payment of the fine or weregild, then it would be obvious that their con- version into processes for reaching the life of the offender is a grievous abuse. Appeal is either a civil suit, or it is not. " But I will not contend," (said Sir George Savile, in the course of a debate in the House of Commons) — " I will not contend that to be a civil suit, which ends in hanging^ " In truth, if the weregild was the thing sought by use by slow degrees, and was far from being common in the former part of this period, when almost all causes were tried by ordeals of one kind or other. But in the reign of Henry II, after a law was made allowing the defendant, in a criminal or civil process, to defend his innocence, or his right, either by battle, or by a jury of twelve men, called the grand assize, this last method, as being the most rational, became more and more frequent, till at length it obtained a compleat victory over the Judicial Combat, and every other Ordeal. This victory, however, was not obtained till long after the conclusion of this period." Henri/, vol. Ill, page 355. * Idem, vol. II, p. 304. f See Appendix. 147 Appeal, the probability is, that where the were- gild could not be paid, the murderer was — not put to death — but sold into slavery. We cannot imagine for a moment, that the Appellor Mas permitted to apply to the Court as a Shylock, and demand either his money, or his pound of flesh. Blackstone, in contrasting the Saxon and Norman institutions, recites, as characteristic of the former, " the great paucity of capital punish- ments for the first offence ; even the most noto- rious offenders being allowed to commute it for a fine or weregild, or, in default of payment, per- petual bondage; to which our benefit of clergy has now, in some measure, succeeded*."' Thus the friends of Appeal may have it which way they will ; either without Battle, or without punishment of Death : but they shall not have it Saxon, to get rid of the Battle, and yet Nor- * Blackstone, iv, 33. With respect to the suggestion, that " our benefit of clergy lias in some measure succeeded, &c," the Learned Commentator is possibly in error, in more respects than one; and here, again, we find the bias, to look, for our institution-, in Saxon rather than Norman originals. The benefit of clergy, with the burning in the hand, has a remarkable coincidence with the power lodged in the lord " de faire coper le poing destre" of an homecide ; fur this punishment was inflicted, precisely as in our burning in the hand for man- slaughter, in the case " que un ome tuc \\n autre uutrement (pie en murtre," and not, as in that suggested In Blackstone, of the first offtnee of even the most notorious offenders.'' S< c Assises dc Jerusaltw. ch. xciv. 148 man, to carry the Appellee to the gallows! If, under the Saxon laws, the Appellee had not the right of protecting himself by Battle, he was also free, under the same laws, from the danger of forfeiting his life under a judgment of guilty. The friends of Appeal may therefore have it as they will ; either without Battle, or without Death. Blackstone's suggestion, that the Ap- peal was originally a process for recovering the weregild, or compensation to be paid by the murderer, is an idea which even seems to be sup- ported by the prevalent notion, that an Appellor may lawfully compound with an Appellee ; though, in all other cases, a composition for felony is an act not to be mentioned without re- probation, and even a cognizable offence*. But what if we have confounded two things essentially different from each other ; the punishment of murder by fine or slavery, and its punishment by death; the one sought by civil process, the other sought by Battle? Under the Law of Ap- peal, (as it will probably be found,) there is no notion of mulct or compensation ; but the Ap- pellant either acquits himself by his victory, or he is slain by his adversary, or he is hung by the * " There never was an instance wherein the Trial by Ap- peal was instituted, that it was not for the sake of obtaining a sura of money." Mr. Stanley. Parliamentary Debates. See Appendix. 149 executioner. Here, as elsewhere, the modern practice appears to be a miserable hotch-potch of broken and disjointed pieces. — " The right of a vindictive action for the death of an ancestor, by his representative, (says a writer in one of the newspapers) is purely Saxon; and all the efforts of Norman Kings and Norman Judges, which have been directed to the Appeal, have been made for its destruction. It was the Norman dynasty which introduced the Wager of Battel into England; and, before the conquest, this barbarous, absurd, and unchristian ceremony was no more admissible, in case of an Appeal, than in a trial of the right of land by writ of right — into which also these rude soldiers re- ceived the judgment of Combat." Let all this be proved, before it passes for any tiling; and especially let it be proved, that the " vindictive action*' afforded by the Saxon law, if it was not an Appeal to Battle, was an Appeal that affected the life of the offender. Let it also be further proved, that in the opinion of any enlightened per- son, any vindictive action, in any criminal case, is rwzv held to be admissible*. * S<> tar i^ modern legislation from tolerating the principle o\' d " vindictive" criminal action on the part of the subject, that it rejects all interference whatever, of private parties, be- tween the criminal and the public. " Nay," says Blackstone, "the voluntary forgiveness of the party injured ought not, in true policv, 1o intercept the stroke of justice." And " the ]50 51. But we have insisted, 1°. That the Normans were not the authors of Trial by Battle; and, 2°. That they were not the authors of the modern restrictions on the right of Appeal. The latter of these two positions alone remains now to be defended ; and, for this purpose, let us observe in what state the right of Appeal came down to us through the medium of the Norman code. We have just seen (page 142, note) in in what plenitude it subsisted among the Ger- mans, and we need not doubt that the same is a true picture of its state among the Saxons. The text of the Grand Coustumier de Normendie im- plies an equal latitude; but the comprehensive- ness of its import will be best understood from the more copious terms of the Assises de Jerusalem. In the eighty-second chapter of that work is enumerated " what persons may bring Appeals of Murder, and to whom the defendant is bound to answer;" and the list descends, from husband and wife, and every family relationship, to the right of punishing," says Beccaria, " belongs not to any one individual in particular, but to society in general, or to the sovereign who represents that society; and a man may re- nounce his own portion of their right, but he cannot give up that of others." 151 woman who has nursed a murdered man, to the man who has nursed a murdered woman, to all a man's fellow-countrymen, to all who were joined with him by community of faith, to any one who had sailed with him on ship-board, and to any one who had been in his company within a year and a day before the murder, and could thence call himself his companion*. The original is too curious to be omitted : " Feme Espouse dou Murtri. " Horn Espous de la Murtrie. " Tous Parens 8c Parentes dc Sanguinite. " Tous Parens & Parentes d'Afinite. " Tous Parains. u Tons Maraines. " Tous Fillous. u Tous Filleures. " Tous Comperes. " Tous Comeres. " Tous ceaus 2c celles qui sont dou Pais dou Murtri, se il est Pelerin estrange. " Tous ceaus & toutcs celles qui vindrent au passage a que il vint, se il est d' outre mei . " Tous ceaus 8c toutes celles qui ont este avec le Murtri ou la Murtrie an & jour, si com est devant dit. " Tous ceaus ou celles qui sont tenus de foi au Meurtn <>u ;\ la Murtrie, soit Home ou Feme, ou Seignor ou Dame. : Tous ceaus ou celles qui sont dou comnnin dou Murtri ou de la Murtrie, se il est de costume. ' See the Grand Coustuniier tie Normendie. 152 " Tous ceaus ou celles qui sont de la frerie dou. Murtri ou de la Murtrie, se il est de la frerie. " Feme, se elle a este soignant dou Murtri. " Home, seil.a ter.ue la Murtrie a soignante. " Mais Feme qui ait Baron ne pent faire apeau de Murtre 3 The truth of the matter is, That on the one hand, under the Norman system, and before it received alterations in England, the right of Ap- peal was almost without limit. But, on the other, there was no Appeal without Battle; the few Appellants who were excused from Battle in person, being obliged to fight by their Cham- pions, and to be answerable for all defalcations. —An Appeal is a prosecution by Wager of Battle. 52. Why the King and Parliament of England have progressively restricted the right of Appeal has been argued above, already. It is sufficient, in this place, to recollect, that independently of the endless evils attendant on the praetice, it is essentially vicious in principle— in this respect, if in no other — that it substitutes a private pro- pion estoit vaincu." M. Barrington is so far right, as that the passage corroborates everv other account of the mischiefs at- tendant upon Appeals ; since it informs us, that robust and desperate ruiiians were in the practice of appealing wealthy per-on>, or those who had rich relations or friends, upon charges of pretended murders, supported by the production of wounded bodies, and by their oath*> of relationship, or such connection us the law allowed; and that if these pretended champions were met by hired adversaries, on the part of the wealthy persons falsel) accused, (instead of submitting to buy off the accusation with money) those hired champions might purposely commit an act of recreancy, and thus cause their principal to be hanged (justicii.) 154 sedition for a public prosecution— and is in hos- tility with the first requisites of civil society. It- has been seen, that it began when public justice was unknown, and that its continuance, after the establishment of public justice, is defensible upon no ground whatever. The principle, that the so- vereign ought to wait for the private prosecution, before he commenced the public one, belonged only to the first struggles of civilization with the savage state; — the principle, that private persons might compel an accused person to defend his innocence by Battle, in cases where there was no evidence sufficient for a public prosecution, was barbarous, as all reasoners allow ;— and the prin- ciple, that an accused person, being acquitted on the public prosecution, is still to be liable to a private prosecution — the principle of a second criminal trial — was reserved for the barbarism of modern ignorance, modern oblivion of the original in- tention and practice, and modern superficialness in regard to abstract notions. 53. Another objection which is offered to the allowance of Trial by Battle in Appeals of Fe- lony, but of which it is scarcely worth while to take notice, is founded on its long disuse*. Few * Only three examples of Wager of Battle, in Appeals of Mur- der, are said to be on record, in the ordinary law books. The last was in the year 1612, Egerton v. Morgan; "but Lord 155 readers can need to be reminded that law is not the less law for its disuse, and that its ex- Chief Justice Dyer," says a writer, "tells the story confusedly and imperfectly. One thins, however, is clear, that tin' Rattle was not actually fought; ' for an error or sera])) 1 being made in the plea, the hill was frustrated.' It is not stated that this was an Appeal of Murder after acquittal, and, indeed, it would seem, from the expressions of Dyer, that it was not.'' Wagers of Battle, in Appeals of Felony, in Writs of Right, and in the Court of Chivalry, are of more recent occurrence, and were, douhtlessly, at all times, more frequent — murder heing, happily, among the rarest of crimes. The circumstances, in Low v. Kynie, 1571, are thus imperfectly related In Stow: " The 18th June, in Trinity Tearme, then' was a Comhate appointed to haue been fought for a certain mauour and de- maine lauds helonging thereunto, in the Isle of Harty, adjoyn- in» to the Isle of Sheppey, in Kent. Simon Low and John Kymc were plaintifes, and had broughl a writ of right against T. Paramore, who offered to defend his right by Patted, where- upon the |>laintifes aforesaid accepted to answere his ehalenge, offering likewise to defend their right to the same manour and lands, and to prove by Halted that Paramore had no right, nor no good title, to have the same. " Hereupon the said Tho. Paramore brought before the Judges, at the Comon Pleas at Westminster, one George Thome, a bijjge, broad, strong-set fellow: and the plaintifes brought lien. Nailor, master of defence, and servant to the Right Honourable the Larlc of Leicester, a proper slender man, and not so tall as the other. Thorne east downe a gauntlet, which Nailor looke up. I pun the Sonday before the Patted should be tried on the next morrow, the matter was staved, and the parties agreed, that Paramore, being in possession, should have the land, and was bound in f>00 pound to consider the plain- tife's claim, as upon hearing the matter the Judges should award. 156 istence, and consequently the subject's right to avail himself of its benefits, can be terminated The Q. Majesty was the taker up of the matter in this wise. It was thought good, that for Paramore's assurance, the order should be kept touching the Combat, and that the plaintifes, Low and Kyme, should make default of appearance ; but that yet such as were sureties of Nailor, their champions appear- ance, should bring him in, and likewise those that were sureties for Thorne, should bring in the same Thorne in discharge of their bond, and that the Court should sit in Tuthill-fields, where was prepared one plot of ground, one and twenty yardes square, double railed for the Combate, without the West square, a stage being set up for the Judges, representing the Court of Common Pleas. All the compasse without the lists was set with scaffolds, one above another, for people to stand and be- hold. There were behinde the square, where the Judges sate, two tents, the one for Nailor, the other for Thorne. Thorne was there in the morning timely. Nailor, about seven of the clocke, came through London, apparreiled in a doublet and galey-gascoigne breeches, all of crimson sattin cut and raied, a hat of black velvet, with a red feather and band, before him drums and fifes playing. The gauntlet, that was cast downe by George Thorne, was borne before the said Nailor, upon a sword's point, and his batten (a staffe of an ell long, made taper-w ise, tipt with borne,) with his shield of hard leather, was borne after him by Askam, a yeoman of the Queene's gard. He came into the Pallace of Westminster, and staying nut long before the hall doore, came backe into the King's streete, and so along through the Sanctuary, and Tuthill streele, into the held, where he staved till past nine of the clocke, and then Sir Jerome Bowes brought him to his tent ; Thorne being in the lent with Sir Henry Chieney long before. About ten of the clocke, the Court of Common Pleas removed, and came to the place prepared. \Vhen the Lord Chiefe Justice, with two other l.'>7 only by its solemn abrogation. Under these cir- cumstances, the language of Counsel, on a late bis associates, were set, then Low was called solemnly to come in, or else liee to lose his writ of right. Then, after a certain time, the sureties of Henry Nailor were called, to bring in the said Nailor, champion for Simon Low ; and shortly thereupon, Sir Jerome Bowes, leading Nailor by the hand, entreth with him the lists, bringing him down that square by which he en- tered, being on the left hand of the Judges, and so about, till he came to the next square, just against the Judges; ami there making curtesie, first with ono loir, and then with the other, passed forth till he came to the middle of the place, and then made the like obeysance, and so passing till they came to the barre, there bee made the like curtesie, and his shield was held up aloft over his head. Nailor put off his neather stockes, and so, bare foote and bare legged, save his silke scanilonions, to the ancles, and his doublet sleeves tyed up above the elbow, and bare headed, came in as is aforesaid. Then were the sureties of George Thome called, to bring in the same Thorne; and im- mediately Sir llenrv Cheiny, entering at (he upper end on the right hand of the Judges, used the like order, in comming about by his side, as Nailor had before on that other side, and so comming t<> the barre with like obeysance, held up Ins shield. Proclamation was made in forme as followed) : —The Justices command in the Queene's Maies. name, that no person of what estate, degree, or condition that he be, !k ing present, to be so hardy to give any token or sigue, by countenance, speech, or language, either to the prover or to the defender, whereby the one of them may take advantage of the other: and no person rcmoove, but still keep his piaee ; and that even person and person-, kecpe their staves and their weapons to themselves; and suffer neither the said proovcr nor defender to take any ot their weapons, or anv other thing, 1 hat nay stand either to the 158 occasion, in the Court of King's Bench, might justify surprise, if we did not allow for a certain said proover or defender any availe, upon pain of forfeiture of lands, tenements, goods, chattels, and imprisonment of their bodies, and making fine and ransome at the Queene's pleasure- " Then was the proover to be sworne in forme, as followeth : — This heare, you Justices, that I have this day neither eate, drunke, nor have upon me either bone, stone, nor glasse, or any inchantment, sorcerie, or witchcraft, wherethrough the power of the word of God might be inleased or diminished, and the Devil's power increased: and that my Appeale is true, so helpc me God and his Saints, and by this Booke. " After this solemne order was finished, the Lord Chiefe Justice, rehearsing the manner of bringing the writ of right by Simon Low, of the answere made thereunto by Paramore, of the proceeding therein, and how Paramore had chalenged to defend his right to the land by Battell, by his champion George Thorne, and of the accepting the trial that was by Low, with his champion Henry Nailor; and then, for default in appearance in Low, he adjudged the land to Paramore, and dismissed the champions, acquitting the sureties of their hands. He also willed Henry Nailor to render againe to George Thorne his gauntlet, whereunto the said Nailor answered, that his Lordship might command him any thing, but willingly he would not ren- der the said gauntlet to Thorne, except he would win it; and further, hi* chalenged the said Thorne to play with him halfe a score hlov.es, to shew some pastime to the Lord Chiefe Justice, and the other there assembled ; but Thorne answered, that he came to light, and would not play. Then the Lord Chiefe Justice, commending Nailor for his valiant courage, commanded 1 hi in both quietly to depart the field, Ac." The anecdote of Thorne is thus related by a writer quoted 159 professional affectation of ignorance, vory pro- per, perhaps, to the due discharge of their du- by Dr. Henry: " Nailer, champion for Lowe, challenged Thome, his antagonist, to plaie with him half a score blowes for pastime to the Judges; but Thome sullenly refused, savin" ' he came to fight, and not to plaie.' " Hai. Hist, of (it. Brit. vol. vii, p. .'A). The Kymcs may seem to have been troublesome litigants for land. In the reign of King John, we find "Simon de Kvme lined in five mark-, for wagering Dnell for the laud of Baenburc, after he had acknowledged to the King that he had no right to it." — History oj the Exchequer, p. 349. Blackstone somewhere observes, that Battle, in writs of right, rather resembled the exhibition of an athletic rural sport, than a serious and mortal engagement. A contemporary writer erroneously remarks, that it is doubtful whether an> Battle has been actually fought in England, on a writ of right, for these two hundred and thirty years ; but one is mentioned so late as K53H— onh one hundred and eights years ago. See- page lot, note. The following is from a tract of Mr. afterwards Sir John) Davies, written in 1001: " The Manner of Gaginge Battail in Case of Murder or llobben : The defendant having pleaded not guilty, and having |>ut himselfe upon defence by his bodv, the Plaintiff was demanded by the Courte, and commanded to take tin- defendant bv the lett hand, and -a\ unto him, laying his right hand upon the book, and calling him by his name ot baptism; ' T . . . . , whom 1 hold by the hand, I doe heere charge thee, that thou '»uch a \eare and daye) didst feloniously robe mi of two of m\ kine, and this t am ready to aver by my bodye, as a good and law full man, and that m\ Appcale i> true; soe help me (iod mu\ hi- s .;in1>.' Then thev disjoined their handes again, and the Defendant tooke the Plaintirfe by his feft hand, and spake to him in this manner: ' \V. (calling him 160 ties. On the side of an Appellor, the Learned Counsel is said to have expressed himself sur- likewise by his Christian name) ' whom I hold by the hand, thou hast falsly lyed uppon me, for that I did not robe thee of thy kine, as thou hast charged me, and this am I ready to maintaine by my bodye and that my deffense is true ; soe help me God and his Saints.' Then the Plaintiff, within three dayes, found pledges of his Battail, and went at liberty, but the Def- fendant was commanded to the Marshall, who was to suffer him to have his ease, and manger et boyer ; and the Plaintiff was commanded, that the night before the Battail he should come to the Marshall, to be arrayed and armed by him, so that he might be ready the next morning, at the rising of the sun, to do Battail. The Appellant's head was ever covered, but the Defendant's rayed; yet upon an endictment, if the party indited became an approver, his head was rayed, and the Appelee was covered, and generally in the Battail, upon an Appeal, the staves of the combattanls had knobbs, and therein differed from the bastons of the champions in a writt of right. At the time of the Battail, if either of the parties was cast to the earth, the Judges might interrupt the Battail, and cause the party, that is in such distress and disadvantage, to come before them, and then demand if he will have any more of the Battail, and if he answer he will, then is he to be layed in the same disad- vantage, and if he refuses to fight, he is presently to be hanged." The height to which the practice of Appeals has been car- ried in times past may be guessed from t lie following anecdote of an occurrence in France, under the reign of Louis VIII. The story will be the more acceptable to the general reader, be- cause it is that which, with much alteration, has been lacely wrought into a theatrical entertainment, under the title of the Forest of Jiondi/, or the Dog of Montargis : — " The fame of an English dog lias been deservedly trans- 1G1 prised at the joining issue by Battle on the part of the Appellee; and on the side of the Appellee, mitted to posterity by a monument in basso-relievo, which still remains on the chimney-piece of the grand hall, at the castle of Montargis in France. The sculpture, which represents a dog fighting with a champion, is explained by the following narrative. " Aubri de Mondidier, a gentleman of family and fortune, travellin<» alone through the forest of Bondi, was murdered, and buried under a tree. His dog, an English blood-hound, would not quit his master's grave for several days ; till at length, compelled by hunger, he proceeded to the house of an inti- mate friend of the unfortunate Aubri's, at Paris, and by his melancholy howling seemed desirous of expressing the loss they had both sustained. He repeated his cries, ran to the door, looked back to see if any one followed him, returned to his master's friend, pulled him by the sleeve, and with dumb eloquence entreated him to go with him. " The singularity of all these actions of the dog, added to the circumstance of his coming there without his master, whose faithful companion he had always been, prompted the company to follow the animal, who conducted them to a tree, where he renewed his howl, scratching the earth with his feet, signifi- cantly entreating them to search that particular spot. Ac- cordingly, on digging, the body of the unhappy Aubri was found. " Some time after, the dog accidentally met the assassin, who is stvled, by all the historians that relate this fact, the Chevalier Macaire ; when, instantly seizing him by the throat, he was with great difficulty compelled to quit his pity. " In short, whenever the dog saw the chevalier, lie continued to pursue and attack him with equal fury. Such obstinate vi- rulence in the animal, confined only to Macaire, appeared very extraordinarv, especially to those who at once recollected the Y 162 another Learned Counsel is described as apo- logising for the course taken, and as resting his dog's remarkable attachment to his master, and several in- stances in which Macaire's envy and hatred to Aubri de Mon- didier had been conspicuous. *' Additional circumstances created suspicion ; and at length the affair reached the royal ear. The king (Louis VIII) ac- cordingly sent for the dog, who appeared extremely gentle till he perceived Macaire, in the midst of several noblemen ; when he ran fiercely towards him, growling at and attacking him as usual, " The king, struck with such a collection of circumstantial evidence against Macaire, determined to refer the decision to the chance of Battle ; in other words, he gave orders for a Combat between the chevalier and the dog. The lists were appointed in the Isle of Notre Dame, then an uninclosed, un- inhabited place ; Macaire's weapon being a great cudgel. " The dog had an empty cask allowed for his retreat, to enable him to recover breath. Every thing being prepared, the dog no sooner found himself at liberty, than he ran round his adversary, avoiding his blows, and menacing him on every side, till his strength was exhausted ; then, springing forward, he griped him by the throat, threw him on the ground, and obliged him to confess his guilt, in the presence of the king and the whole court. In consequence of which the chevalier, after a few days, was convicted upon his own acknowledgment, and beheaded on a scaffold in the Isle of Notre Dame." The above recital is translated from ' Memoires sur les Duels;' and is cited by many critical writers, particularly Julius Scaliner, and Montfaucon. Montfaucon has given an engraved representation of the sculpture of the Combat, men- tioned above. In tin; year 1398, King Richard II caused a theatre to be built in the town of Bristol, for a Combat to be fought 1G3 apology upon the sole (though abundantly reason- able) ground of the danger to which the Appellee between two Scots, the one an Esquire appellant, and the other a Knight defendant; the Appellant was overcome, and hanged. Of the Appeals on record, those of Treason (perhaps on account of their public nature) are the most frequent ; and in these cases, (different from those of Felonies, or, as these were once esteemed, private wrongs, the King''? interest being at stake, the King was free to exercise the royal mercy upon the van- quished. He might spare the capital punishment, though upon what condition he pleased. " In the Octaves of the Epiphany, [anno 109(5,] the King [William II] and all his Nobles were at Salisbury ; there, God- frey Bainard accused William de Ou, [Hon or How,] the King's Kinsman, of Treason, in the King's Court, and vanquished him in single Combat ; whereupon the King commanded William de Ou's eyes to be put-out, and his testicles to be cut off." M (idol's Hist, of the Exchequer, p. G. Is not 1 1 1 i -s barbarous act unfortunately connected with our Hntiquities, in what relates to manners — and not the manner* of England only, but of the world ? Do not these mutilations (d* an adversary fallen in battle, correspond with the practices of gouging, biting, &c. still practised in the fighting of the northern and other parts of this kingdom, and thence carried to North America ; and with the more splendid cruelties prac- ticed upon captured kings, formerly in Europe, and to this day (as in the case of Shall Alluni, and other later sufferers) in Asia? Of the brutality of our ancient manners, the ballad of the Hunting of the Hare ^Metrical Romances, vol. III.) is some testimonial; and it is probably true, that nothing has done .so much to inspire generous sentiments into the multitude (in relation to fighting) as the modern professed pugilism. In Virginia and Kentucky, our countrymen have introduced tin 164 must be exposed, in the event of a Second Cri- practices of kicking, biting, gouging, &c. when the fallen party is in the power of his enemy, so effectually and generally, that in the state last mentioned, a legislative provision has been made, to enable persons losing their ears on these occasions, to record the same with the county clerk of the peace, and to produce the record in support of an action of slander, if the loss should afterward be attributed to the pillory ! By the way, are not the crackers (the boasters, and strictly the quarrelers) of York- shire in England, Virginia, &c. the same with the valemtoens and bravoes of Brazil, and the heroes described (above) from Stiernhook, who commenced their provocations by " I am as » good a man as you?" &c. Let it be repeated, that modern pugilism inspires generous sentiments into the people — senti- ments which are too apt to be absent where rules of fighting are not observed. A wretch, even in New England (ihe ge- neral counterpart to Virginia), a short time since, sprung upon the daughter of a man who had offended him, whom he found milking her cow, and, with his thumb, forced (gouged) out one of her eyes, bit off her upper lip, &c. Next to that of Edgar the West Saxon, with Canute, the oldest Battle on record in our history, is the following : " Henry de Essex, hereditary standard-bearer of England, fled from a battle in Wales, A, D. 11 5U, threw from him the royal standard, and cried out, with others, ' That the King was slain.' Some time after, he was accused of having done this with a treason- able intention, by Robert de Montfort, another great baron, who offered to prove the truth of his accusation by Combat. Henry de Essex denied the charge, and accepted the challenge. When all preliminaries were adjusted, this Combat was accord- ingly fought, in the presence of Henry II, and all his Court. Essex was defeated, and expected to be carried out to imme- diate execution. But the King, who was no friend to this kind of trial, spared his life, and contented himself with confiscating 105 minal Trial by Jury, amid the " extraordinary his estate, and making him a monk in the abbey of Rcadin«."* Henry's Hist, of England, vol. Ill, p. '356. The last Wager of Battle, in a case of Treason, was in 1631, when Donald, Lord Rea, was the Appellant, and David Ramsay, Esquire, the Appellee. "The Priory of Tinmouth, in Northumberland, was a cell of the abbey of St. Alban's. One Simon, of Tinmouth, claimed a right to two corrodics, or the maintenance of two persons in the prion , w Inch the prior and monks denied. This cause was brought before the Abbot of St. Alban's, and his court-baron, who appointed it to be tried by Combat, on a certain day, before him and his barons. Ralf Gubion, prior of Tinmouth, ap- peared, at the time and place appointed, attended bv his champion, one William Fegun, a man of gigantic stature. The combat was fought, Begun was defeated, and the prior lost his cause ; at which he was so much chagrined, that he immedi- ately resigned his office. This Judicial Combat is the more remarkable, that it was fought iii the court of a spiritual baron, and th.it one of the parties was a priest." Henry, p. :{,>7. In a dispute concerning the right of patronage to the church of St. Andrew, Northampton, anno 1729, between the prior of Lenton and Thomas de Staunton, " The cause was agreed to be derided by single Combat ; William Fitz-John undertaking to fight for the prior of Lenton, anil Wi Ham Fitz-Thomas on the behalf of Thomas de Staunton. On the day appointed, the combatants coming armed into the held, were sworn at the bar, according to antieut custom. But the respective parties desiiing licence of agreement, the said Thomas de Staunton gave up all his light in the advowson for himself and his heirs, to the said prior and his successors for ever." Uridgcs's History of Northampton, vol. I. p. 514. A Combat was grunted by Edward III, and fought neai Berwick, between Sir John de Sitsiit, and Six John de Faukeu- 160 and unprecedented prejudice disseminated against ham, concerning the arms now borne by the Cecils. The coat was challenged by Sitsilt, but worn by Faukenham. They began to fight, but the matter was soon determined by the King. The following are casual notices respecting Wagers of Battle in England, most of which serve to show the evils with which they have always been attended, and the necessity which sub- sisted of watching with the greatest strictness the motives of the Appellants. " Anno 1344, Pvich. II. A Combat was granted to an Esquire, born in Navarre, to fight an English Esquire, called John Welsh, whom the Navarrois accused of treason. But the true cause of the Navarrois, his malice was, that the said Welsh had dishonoured his wife, as (being vanquished) he con- fessed. The King gave sentence he should be drawne and hanged." Henry II. "Rafe de Hertwclle fined twenty shillings to have his Duell in the King's Court." Hist. Excheq. p. G6. Richard I. " Gerard de Brocton gave forty shillings to have his Duell in the King's Court." Ibid. p. 67. " Robert Fitz-Gerard fined in two ounces of gold, that he might recover his land by Duell." Ibid. 294. " Serlo, son of Turlaueston, gave ten marks, that he might make his defence, in case he was appealed for a certain homi- cide." Ibid. 290. " William Wischard fined in four pounds and six shillings, to have an enquest of the Visnue, to find whether he was appealed out of ill-will or not." Ibid. " William Buhurst fined in two marks, to have an inquest, to find whether he was appealed for the death of one Godwin out of ill-will, or for just cause : and Richard de Leechesman fined in one mark for the like." Ibid. 302. " William de Andeford gave two marks for attaching Jordan 107 him throughout the country*;" as if either gen- de Belnei and others, who were appealed of his father's death." Ibid. 304. " Hugh Peverel fined in ten marks, that the Sheriff might enquire, whether Walter Fitz-John appealed Daniel de Nime- lande of his brother's death, out of hatred or not.'' Ibid. 305. " Adam Bland, of Bodmine, fined in two marks, that there might be a Duell between him and Walter de Stolde, for two hundred pieces of tin, which Walter said that Adam had stolen from him." Ibid. 307. " Odo de Dammartin fined in two Palfreys, to have a Pone against Richard Hacun, touching a Duell waged between them for land in Hamelinton." Ibid. 307. " Arabel Pancefot fined in six pounds three shillings and four pence, that the Duell between her and Robert her brother might be hindered." Ibid. 311. " Emme, the Priest of Nethford's Concubine, was amerced for a False Appeal." Ibid. 380. * See the Newspaper Reports of the Proceedings in the Court of King's Bench, Ashford v. Thornton, Nov. 17, 1317. The " extraordinary and unprecedented prejudice dissemi- nated," against the Appellee in this case, is, indeed, worthy of observation ; and the part which the daily press has taken in the transaction, evinces what an injury upon society the press may be rendered, —an injury not always to be averted by the freedom of discussion which it supposes, and the opportunity which it affords for the publication of writings, as well on one side of a question as on the other. The truth is, that there are certain assertions, and certain arguments, which will always have more popularity than others ; and it is an act of great simplicity to say, that when a lie or a sotticism has been uttered, the utterance of a denial or a refutation is a cure. Falsehood, 168 tleman could be ignorant, not only that Trial by Battle is matter of law, but that in point of for the most part, is received with more readiness than truth, ignorance than learning, and folly than good sense. In the case under consideration, we have seen all the daily presses in the country engaged in hunting down an individual — in de- manding the blood of a supposed offender, but one who has already been acquitted by a Jury ! It was to oppose a feeble resislance to this overwhelming torrent — which no one else op- posed — tbat I first adventured upon this Argument. — As to the question of bringing such a person, under such circumstances, to a second trial, one observation presents itself, which, though perhaps a little out of its place, may be pardoned here. When, in the year 1774, (see Appendix,) the merits of Appeals of Murder were casually discussed in the House of Commons, Mr. Stanley judiciously remarked, " I think it hard that a man should be tried twice for the same offence, and when you have an advantage, by knoimng his secrets and defence." Now, in the present case, it is universally said, (however absurdly, ig- norantly, and cruelly) that the "secret and defence" of the Ap- pellee is an alibi ; that that was the only ground of his acquittal;, and is the only ground upon which his innocence can be pre- sumed. Now, this being known, what follows? Why, that the business of his prosecutor must be, to defeat the plea of alibi ; and how may this be done? We need say nothing of the merits of the actual prosecution. Every thing may be pure in this instance. But what a temptation to produce suborned witnesses, and even those who may disinterestedly perjure them- selves? What falsehoods witnesses will swear to, almost exceed belief; and we shall betray great ignorance of human nature, and great unfitness for the affairs of the world, if, on every occasion of falsehood and perjury, we suppose ourselves re- duced to the necessity of imputing a corrupt motive. It is 16\0 fact, it is the Appellor, (the legal capacity for Battle supposed) who is the first to offtr and even dc- woll observed by Lord Shaftesbury, that we are mistaken in imagining self-interest to be tlie only principle on which men act. Passion is even more powerful than sell-interest. Men daily follow it, not only to tlie injury of others, but of them- sclves. The daily press, in the disgraceful course it bas pur- sued in the present instance, lias not bad a corrupt or selfish motive; it bas been actuated by passion; by what the noble author, just named, denominates an abuse of the social prin- ciple ; a misuse of the affections for universal right and truth ; a blind and mistaken zeal for justice. Put what need we do more, than imagine the language of witnesses presented to a Jury, if they only carry with them the exasperated feelings and indolent prejudices, which we have witnessed in the daily press, and in the conversation of private societ\ ? Prejudice is the result of indolence. Every question that can be presented to the mind, produces a state of inquietude, of which the majority presently grow weary. The\ love, therefore, to "make up their minds;" and, to act unplbh this point, they take the shortest road. An acquiescence in the doctrine, that the want of an alibi is sufficient to establish guilt, i^ an example. An alibi is a complete proof of inno- cence ; but the want of it is no proof of guilt. Let an\ reader ask himself, whether he cannot recollect a thousand several moments of his life, with respect to which, had he been charged with an offence committed at the juncture, he would have been unable to prove an alibi? \ case, indeed, bas recently presented itself, where the want of an alibi was a conclusive proof of guilt. It is that ot the llohlens, and their companions, executed at Sheffield, for the murder of two females. In that case, four men were severally charged to have been seen, sometimes together, and sometimes 170 mand Battle ; and that the part of the Appellee is only to grant Battle, or accept the challenge, provided the Court is of opinion, that under the circumstances which appear, he cannot refuse to answer the complaint of the Appellor. If he does answer, he answers by granting Battle. As to the rest, the Learned Counsel who advised the grajiting of Battle, in the case alluded to, are entitled to the thanks, not of their client only, but of the entire country, for having thus at- tempted to arrest the progress of a prosecution under the barbarous Law of Appeal. apart, in the immediate vicinity of the scene of the murder ; and not one of those four men attempted to prove that he was elsewhere. Innocence, under these circumstances, is incredible ; and the religious character with which it was at- tempted to clothe their denial, is only one more testimony to the truth of the important rule, That religion is good or bad, accordingly as it is used. By adverting to the distinction between the case of four persons, severally unable to prove an alibi, and that of a solitary individual, who, though innocent, may be unable to prove it, we shall enlighten our judgment upon the question. As to the guilt or innocence of Abraham Thornton, we ought to lay the alibi wholly out of view, except in this case only, — that it can be proved to be falsely set up. The false pretence of an alibi would be a suspicious circum- stance,— though even an innocent man, but not an honour- able man — not a hero — not a martyr — might resort to it, in order to persuade a Jury of his innocence, and repel a cloud of unfavourable circumstances ; — but the want of an alibi is no proof of gnih. 171 54. But tlie last resource of the friends of second criminal trials is in the doctrine of excep- tions to the allowance of Battle ; and here, [confess, that deep as is my sense of the imperfection with which I conduct every part of the Argu- ment, and irrefragable and conclusive as is tin- evidence to be offered against the popular interpretations on the point,—! commence this branch of the inquiry with increased apprehen- sion, and almost with a despair of succeeding in the attempt to produce a right impression on the mind of the reader. The case is, that so de- cided a perversion of the ancient and reasonable usage has obtained in modern times- — the inuti- lity of Appeals, under the modern administration of justice, and their inconveniences under all circumstances, have brought them into so much disuse, and their disuse into so much forgetful- ness, and involved us all in so much igno- rance concerning them, that we are misled, at every step, by the very terms employed, mis- taken, as we perpetually are, in the application. If we have been diverted, at the theatre, by the awkwardness and blunders of the Clown, who puts boots upon his hands, and gloves upon his feet, or who misapplies every article of the dress of a fine lady ; if we know what it is to be whirled round in the dark, and then mistake the north for the south, and the south for the north ; or if we can figure to ourselves the per- 172 plexity which attends the developement of the fragments of an ancient building, when every morsel is either put into a wrong place, or else set topsy-turvy ; then, and then only, we shall be able to comprehend the task that is before us, when we attempt to trace, by the light [of its se- pulchral lamp, the slumbering and buried Law of Appeals. For myself, I proceed with diffi- culty, and J solicit indulgence. 55. A fundamental error of our modern in- terpreters is, that they suppose Battle an ad- junct to a pre-existing Law of Appeal ; whereas the real definition of an Appeal is, a call or sum- mons to Battle*. * Upon this point I have already adduced several testimo- nies, to which I shall not now recur. The following, however, are additions to my proofs (page 192) that an Appellor is truly a challenger. He makes a charge, and offers to fight the man whom he accuses, if the Court will allow him so to do. Hence the appropriate term of " granting" a Duel or Combat, which has repeatedly occurred in the authorities cited in these pages, and which "granting a Duel" is the true phrase for "allowing an Appeal." " Et se il le noie, il est prest de prover le tout end com la Court esgardera ou connoislra que il prover le dole, et vees ci son gage." Assises, chap, xciii. See the form of a Count of Appeal, (page 64, above) where, however, observe the omission of the words " vees ci son gage" — the suppression of the cir- cumstance, that the Count of Appeal is a challenge to a Combat. Further, the words " enci com la Court esgardera ou conuoistra que il prover le doie" appear, in the Assises, to 173 56. A second fundamental error, immediately connected with the former, is that of speaking be used synonymously with those " se il le noie, il est prest de prover le de son cors contre le sien, etc. ;" since these several forms occur in the ninetieth and ninety-third chapters of the Assises respectively, both which chapters relate to Appeals of Homecide ; and since Rattle plainly appears, in those chapters, to be the thing sought by Appeal of Homecide, and the pleas by which Battle is to be avoided by the Appellee, that is, how the Appellor is to be nonsuited, occupy the gravest attention of the author. The proofs, that the Appellant is the true challenger to Battle, might be carried much further; 1. By showing that such is the understanding of all the old authorities ; and, 2. By examples of early proceedings in the English Courts them- selves. With respect to the first, the Grand Coustumier de Normendic agrees, on this point, with the Assises de Jerusalem ; and to 1 lie same effect is the language of Beaumanoir, in his work on the Continues de Beauvoisis : — -" Qui droitement vieut Apeler, ildoit dire ainsint, si chest pour Meurdre : 'Sire, je di sur tel, (& le doit nommer,) que il mauvesment «\: en traison m'a murdri tele personne (& doit nommer, mort, qui mes parens estoit, tV par son trait, iV par sou let, cV par son pourchas, (se il le counoist), je vous requicr que vous en facies comnie de murdricr : se il In nie, j> le rueit prouver de man cors contre le sien, ou par houme qui /ere le puist t S' doie pour moi, comnie chil qui a essoiue ; lequel je monsterroi en tans & en lieu bien.' F.t se il apole sans retenir \voue, il convenra que :l se abate en se personne, et ne puel puis avoir \voue." i'oulumes de licauvoisis, par Philippe De lieaximanoir : atec des notes t S' observations pur (jatpard Tliavmas de la 1 haumas- sitre. Paris. 1<>!);>. (li. xli. " This treatise of Beaumanoir is so systematical and complete, and throws so much light upon our ancient Common Law, that 174 of the Appellee as the party which wages Battle. To " wage Battle," is to present a gage, (guage) it cannot be too much recommended to the perusal of the English antiquary, historian, or lawyer. He kept the Courts of the Comte de Clermont, and gives an account of the cus- tomary laws of Beauvoisis (which is a district of country about forty miles northward of Paris) as they prevailed in the year 1283. He is consequently a more ancient writer than Little- ton; and, to speak with all due deference of the father of the law, perhaps a better writer. It need hardly be said, that the customs and laws of the two countries were at this time very similar, especially of the more northern parts of France: if it wanted other proof, the commentators upon the oldest French law books cite Littleton as illustrating their customs." Har- rington's Observations upon the Statutes. That the early proceedings of the English Courts demon- strate an Appellant to be a challenger, by the use of the same words with those employed by the French lawyers, an example presents itself in a Battle, in Appeal of Robbery, fought in the reign of Henry III. Madox, in his history of the Exchequer, has printed the record, and furnished us with the following account of the incident to which it refers: — "Now we are speaking of Duells, I will lay before the reader a pretty re- markable case of a Duell that was fought in the reign of King Henry III, between Walter Blowberme, an approver, and Hamon le Stare ; together with a draught or figure of the Duell, as it was drawn at that time 1 ; the case was this : Walter Blowberme appealed Hamon le Stare of Robbery; alledging, that they were together at Winchester, and there stole cloaths and other goods, whereof Hamon had, for his share, two coats ; to wit, one of Irish cloth, and the other a party-coat of cloth of Abendon and Burell of London: and that he (the said Wal- ler) was in fellowship with the said Hamon in the said Robbery, • See. the engraving that faces the Title-page ; and also the Appendix. 1/0 wage, or pledge of Battle : and this is properly done by both parties alike, and by the Appellor he offer cth to prove by his body, as the Court shall award. Hanion came, and denyed the whole. And saith that he will defend himself by his body. Whereupon it was awarded, that there should be a Duell between them. A Duell was struck. And Hanion, being vanquished in the Combat, was adjudged to be hanged." The record is in the form following: "Idem Walterus [sc. Blowberme, probator] venit, & appcllat Ilamo- nem le Stare de Wyntonia pereadem verba [viz. de latrocinio] ; scilicet, quod fuerunt de Cruce apud Wyntoniam, et ibi furati erant pannos &r alia bona, unde . . . Hamo habuit ad partem suain duas tunicas, unam scilicet de panno de Hyber- nia, & unam tunicam partitam de panno de Abendon A- de Burello Londonia'; & (juod simul fuit cum eo ad faciendum dictum latrocinium, offert disrationare per corpus suum, sicut Curia consideraverit, Sfc. Et Hamo venit, & defendit totum : [Et dicit] quod vult sc defendere per corpus suum, &c. Ideo con- sideratum est quod Duellum sit inter eos, &c. Et [et Du] elluin inter eos percussum. Et pranlictus Hamo succubuit. Ideo ad Judicium de eo, &c. Nulla habuit catalla." Madox's Hist, of the Exchequer, p. *.JB3. Note. Distinctly to the same effect is Verstegan, in his work on Saxon Antiquities, appropriately entitled, "Restitution of De- cayed Intelligence, &c.:"and here I shall quote in full the account given bv that writer of the Judicial Combats of the Saxons ; an account which, as far as Verstegan and his authorities may permit, will substantiate several particulars hitherto advanced •>ut a> conjectural in these pages. My guide is rather reason than reading ; and, as the press proceeds, I meet with books which confirm what I had at first only diffidently proposed. "They had among them," [the Saxons] says.\ erstegan, " four sorts of Ordeal, which some, in Latin, translate Ordalium. 'Or' is here understood for 'due' or 'right;' 'deal' for 176* first. The part of the Appellee is to accede to the demand of Battle by the Appellor. The ' part/ as yet we use it; so as ' Ordeal' is as much as to say, as ' due part ;' and at this present time it is a word generally used in Germany and the Netherlands, instead of 'dome' or 'judgment.' These sorts of Ordeal they used in doubtful cases, when cleere and manifest proofs were wanted, to try and finde out whether the accused were guilty or guiltless. *' The first was by Kamp-fight, which, in Latin, is termed Duellum, and in French, Combat. The second was by iron made hot ; the third was by hot water; and the fourth was by cold water. " For the trial by Kamp-fight, the accused was, by peril ol his own body, to prove the accused guilty, and, by offering him his glove, to challenge him to this trial, which the other must either accept of, or else acknowledge himself culpable of the crime whereof he was accused. If it were a crime deserving of death, then was the Camp-fight for life and death, and either on horseback or on foot. If the offence deserved im- prisonment, then was the Camp-fight accomplished, when the one had subdued the other, by making him to yeeld, or unable to defend himself, and so be taken prisoner. The accused had the liberty to chuse another in his stead, but the accuser must perform it in his own person, and with equality of weapons. No women were admitted to beholde it, nor no men-children under thirteen years. The priests and people that were spectators, silently prayed that the victory might fall unto the guiltless ; and if the fight were life or death, a beer stood ready to carry away the dead body of him that should be slaine. None of the people might cry, scricke out, or make any noysc, or jjive anj signe whatever; and hereunto, at Hall, in Suevia, (a place appointed for Camp-fight) was so great regard taken, that the executioner stood beside the judges, ready with an 177 Appellor is the agent (I' act cur), and the Ap- pellee the subject, in relation to Battle. " Se axe. to cut off the right hand and left foot oi" the partv so of- fending. " He that (being wounded) did yeeld himself, was at the mercy of the other, to be killed or to be let live. If he wen' slaine, then was he carried away, and honourably buried, and he that slew him reputed more honourable than before ; but if, being overcome, he were left alive, then he was, by sentence of the judges, declared utterly void of all honest reputation, and never to ride on horseback, nor to carry amies." Verstegan'x Restitution of Decayed Intelligeiicv. Small 4to. 1G34. p. G5. Verstegan cites Speculum Saxon, lib. 1. &e. &c. " ' Camp,' or ' Kemp,' " says the same writer, " properly ' one that fighteth hand to hand ;' whereunto the name of Kemp- fight aecordeth, and in French of Combat. Certain among the ancient Germans made profession of being Camp-lighters, or Kemp fighters ; for all is one : and among t lie Danes and Swedes were the like; as Scarcater, Arngrim, Arnercd, Haldan, and sundry others. They were also called Kempanas, whereof is derived our name of 'Campion,' which, after the Trench orthography, some pronounce ' Champion.' A ' Cemp' or * Kemp' is also sometimes taken for ' a souldier,' in regard that his profession is to fight." On the foregoing we may here remark, 1. That the author has almost needlessly called in the aid of French orthography to identify the Saxon Eempan with the English Champion; the Saxon c having frequently the sound of ch ; as in reapman, reorle, rild, riste, chic, c\_c which we pronounce' c/tapman, f/airl, c/old, cAest, f/zurch, &c. The A" has no proper place in the Saxon alphabet, and hence the names A'emp and (Tramp art; the same; both standing foi the Saxon Cemp.— In passing, may we ask, whether the plant Rose Campion is not so called as being the Champion's (Eempan's) A A 178 aerdre a Bataille," is the phrase of the Assises de Jerusalem ; and the obsolete verb, " se aerdre," rose, wreath, or decoration'? All the names, given hy hotanists to the several species, seem to countenance the probability of such a popular use of its flowers; as, Flos Jovis, Coeli Rosa, and Agrostemma, " the garland of the field." 2. We are now in condition, also, to explain what is told us by Blackstone, concerning the loss of his Free Law (liberam legem) by the vanquished in Battle ; and the explanation will serve (as conjectured at page 144) to demonstrate still more incontrovertibly the Saxon origin of this mode of Trial ; as it likewise, at the same time, confirms what has been before in- sisted on above, that the maintenance of a man's veracity, the making good his word, is the real design of Battle. If a com- batant is vanquished, " he is condemned," according to Black- stone, " as a recreant, amittere liberam legem, that is, to be- come infamous, and not be accounted liber et legalis homo ; being supposed by the event to be proved forsworn, and there- fore never to be put upon a jury, or admitted as a witness in any cause." (iii, 12). Again, when speaking of Wager of Law, the Learned Commentator remarks, that " Wager of Law was never permitted, but where the defendant bore an irreproach- able character." (Ibid.) Lastly, Verstegan tells us, "that if a man was vanquished, but not killed nor executed, he was declared, by sentence of the judges, utterly void of all honest reputation," &c. Now, Blackstone does not appear to have observed, that Wager of Law, {legem sacr •amentum) is the Free Law, oi part of the Free Law, (legem liberam) which stands so prominently forward in the Saxon code, and which was so popular a mode of trial. But, as the vanquished in Bailie was considered as not having made good his word, and therefore as perjured, a vanquished person stood in the situation oi one who, in our o-.wt day, has been found guilty of perjury. Consequently, as none could hate the benefit of 17t) is equivalent, according to the glossaries, to the modern verb " s'accorder." Let the reader con- sider the following- passages, extracted from the Assises, and decide for himself, whether it is not the Appellee who is called to Battle: — " Et aucims dient, que se la Deffendoir sen aert a 1'Apeleoir de Bataille autrement que par esgard on par couoissance de Court, et il vainc son ad- versaire, que il la conviendroit apres a combatre eontre son plus prochain parent, se il Ten ape- leoit; mais a se me semble, &c *." And again: " Se aucun apelle autre de murtre, et il n'est de Free Law, or 1 he mode of trial allowed to freemen, (the oaths of slaves or villeins not being admitted) a vanquished person was put out of the condition of a freeman ; and being so put out, on account of his imputed crime, was infamous; and in- stead of the general words, "void of all honest reputation,'' and " a fair and irreproachable character," we arc to under- stand the particular qualities of " worthy" or " unworthy of credit." :3. It is remarkable that Seidell, who, in his Duello, refers to V erstegan, for proof, that Trial by Battle was known to the Saxons, seems to be by no means aware of the particularity of the evidence afforded by the author. 4. What is said by Yeistegau, of the professional Champions of Germanv and Sweden, throws great light upon the dangers to which innocent persons were exposed by Appeals to Battle, as described above, page L52, note,) and adds strength to the sugL r e>tion, at p. KM, concerning the Crackers of Virginia, and Valcmlotnii of Brazil, iVc. f). There are other features in \ erstegan's account, of which 'lue notice shall he taken in their respective places. * Assises de Jerusalem, chap, lxxxix. 180 ceaux que peveut faire Apeau de Murtre, l'Apelle se petit enci deffendre, que il doit faire dire, Que il noie et deffent le murtre, mot a mot, se com il li met sus, et que il est prest que il se deffende de son cors contre le sien, se la Court Vesgarde que a lui sen doive aerdre, et faire ne le veaut que la Court ne l'esgarde, et dit pourquoi ; pour ce que il n'est mie parent dou murtri, ne attaignant a lui de aucune chose tel pourquoi il puisse faire Apeau dou Murtre de ce cors; pour- quoi il a lui ne sen veaut aerdre, se la Court ne l'es- garde, et de ce se met en l'esgarde de la Court, sauf son retenaii *." — But the words of Verstegan are express to this point ; and they contain, I am satisfied, the true law of the case : " In the Trial of Kamp-fight, the accused was, by the peril of his own body, to prove the accused guilty : and, by offering him his glove, to challenge him to this trial, which the 'other must either accept of, or else acknowledge himself culpable of the crime whereof he was accused f." Exactly correspond- ing, also, is the statement which is left us of one of the most ancient examples of Trial by Battle, and which occurred during the reign of Louis the Pious. " Bera, a knight of high rank at his court, was accused of having maintained a correspond- ence with the Africans and infidels in Spain. He repaired to Aix, where the King kept his * Assises de Jerusalem, chap. xcii. t Verstegan, p. 64. 181 court. His accusers persisted in the charge, and threw him a pledge. Bera took it up, and threw his in return, asserting- that the accusation was false, and that he was neither a traitor nor per- fidious. A Combat was appointed, and Bera (being- vanquished) acknowledged that he was guilty. The King [the offence being treason] granted him his lite, but his coat of arms was broken, and he was banished for life to Rouen. '" — To add a word upon a question of less im- portance, it is proper to mark, as of doubtful accuracy, the phrase, " throwing a glove,"' in the proceedings of the Judicial Combat; since, though the glove was thrown, in challenges to Duels not applied for to the Courts, yet, in the latter case, it appears to ha\e been always pre- sented, the party kneeling. — " It was customary for knights to give, by way of challenge, a certain sign or pledge, which usually consisted in a glove. The person offended sent it to his an- tagonist, or directed it to be thrown at his feet; and the latter, by taking it up, signified his ac- ceptance of the challenge. This glove was some- times stained with blood. Such was that sent by Renatus of Anjou, to Alphonso, king of Naples, as a challenge to tight with him for that king- dom. Other things were likewise employed for the same purpose, such as a ribband, a bloody cloth, or a c<\\). It was delivered by a herald or a trumpeter, in the presence of respectable wit- nesses ; at the same time the ground of accusa- JB2 * lion was notified, as also the place for the Com- bat, and the weapons/' This refers to private or unlawful Duels ; but in public or laxvjul Duels, the pledge was presented kneeling. 57. A third fundamental error, also connected with the foregoing, and bringing us immediately to practical truths, consists in supposing, that in the age when Appeals were in use, the hardship of Battle was thought to rest upon the Appellor, instead of the Appellee. Whoever will read the ancient books, will find himself at no loss to dis- cover, that the anxieties of ancient lawyers were chiefly and necessarily directed (as they ought to be directed at present,) to the protection of innocent persons against Appeals to Battle, — for such, let it be continually repeated, are all Ap- peals of Felony. The same solicitude to escape being appealed to Battle, was the foundation of the chartered privileges of the freemen of cities, and of all the exceptions to Battle and to Appeals, which, instead of being continued in their proper character, as protections to Appellees, are now preposterously and ignorantly converted into encouragements to Appellors, and engines for bringing about second criminal trials ! The pro- fessed champions of the Saxons, and others, as we have seen, (robust and profligate ruffians, homes grants et forts,) in the spirit of the blood- money men of our own day, were in the practice of appealing those, from whom, or from whose rela- 18;] tious or friends, they believed they could extort money, in order to avoid Battle, — for, to he ap- pealed, was to be called upon to jight. Others, vain and confident in their bodily strength, for hire, for malice, for revenge, or upon doubtful or fabricated evidence, appealed innocent persons, and those whose sex, tender age, decrepitude, habits of life, or infirmities, unfitted them for self- defence. Against all these evils, society took alarm; and. while Appeals remained in the pub- lic codes, (the scourge and the disgrace of the community, but protected by the popular pre- judices, and by tie necessity which sprung from the imperfect stale of society,) while Appeals (Appeals to Battle) still remained, every effort was made to repress their miscl iefs, or to escape their operation, ft* we turn once more to the Assises de Jerusalem, we shall find the author busy — not, as in our barbarous days, in devising how an Appellor, after calling for Battle, may avoid it — but in devising how an Appellee may escape the Battle called tor by an Appellor. Some extracts to that effect have been given above : and the reader may be referred to the 10 1st chapter, which treats of " How, on an Appeal of Murder, it' Homecide is joined with IMurder*, the Ap- * The definition ises de Jerusa- lem, and as distinguished from Homecide, has some resemblance to our distinction between burglary and house-robbery in ge- neral : " Qui veaut faiie Ajieau de Murtre, ll doit savoir iji;»- 184 pellee may avoid Battle;" to the 102d, which treats of " How, on an Appeal of Murder, if the Ap- pellor is not one who can bring an Appeal, the Appellee may avoid Battle;" and to the 103d, which sets forth, " How and why an Appeal of Homecide is hard to be brought to a Battle, if the Defendant knows how to frame his plea ; and how it ought to be done ; and how Battle is to be avoided :" — " Coment et pourquoi l'Apeau d'Ome- cide est grief a amener a Bataille, se le Defendant s'en sait garder ; et coment Ton le doit faire, et coment Ton se doit garder." — To the same source are to be traced the exemptions from Battle in our City Charters — exemptions not designed to enable citizens to appeal their fellow subjects, and then, by demurring at Battle, to play the recreant with impunity— but to protect citizens from being appealed to Battle, for acts alleged to have been done by them, within the walls of their city. •58. But this third fundamental error is closely est Murtre, pour garder sot que il nc se mete en fans gages. Murtre est quant home est tue de nuit, ou en repos, dehors ou dedans vile ;" that is, — " Murder is where a man is killed in the night, or in his sleep, either in town or field." All other hilling is homecide, or manslaughter, more or less cul- pable. liut in this passage, also, we see, both the peril at which an Appeal of Murder is brought, and that the act of bringing an Appeal is tantamount to offering and incurring j^age of Battle. 185 joined with a fourth — that of supposing, that anciently there was an alternative, in trials upon Appeal, between Trial by Battle and Trial by Jury. Doubtlessly, it was competent to any one appealed, to escape Battle, by confessing his guilt*; but as to any other mode of Trial than Battle, that would have been, in many cases, to enable the Appellee to elude the effect of the Appeal ; for an Appeal is properly (as will be seen) a mode of proceeding where there is ,io suffi- cient evidence, or no evidence at all, and where the Appellor demands Battle upon his simple assertion of the guilt of the Appellee, corro- borated by such circumstances as shall induce an appearance of probability, but which yet would not justify a verdict of guilty by a Jury. 59. It results from all these alterations of place, and metamorphoses of persons, that what was anciently held to be a hindrance to the allowance or "granting" of Battle, or permission of Appeal, to an Appellor, is now made use of to hinder the allowance of Battle to an Appellee. Whatever was formerly held to justify an Appeal, is now urged as a bar to Battle ; so completely is it forgotten, that the object of Appeal is Battle. * I had written this sentence before I read Verstegan ; but the reader will have seen that I am supported by that writer to 'he very letter of my^yg^sitiny. B B 186 Anciently if an accuser did not seek Battle, he did not appeal ; but left the offender to suffer, or to go free, by the ordinary course of public justice. 60. It is said, that where there is strong proof of guilt, there should be no Battle. True; and what is the reason? Why, because, in such a case, there should be no Appeal; but all should be left to the ordinary course of justice ! ! ! Let us see what says the Coutumes de Beauvoisis on this important part of our question: " In every criminal case, an Appeal may be made, that is, the offender may be brought to Battle, if the accuser will make a direct charge, (that is, swear to his guilt) as Appeals ought to made ; for it follows, that he that is appealed, must defend himself by his body, or stand attainted of the offence of which he is appealed*. But there is quite ano- ther mode of proceeding than by direct Appeal; for, the Appeal (or accusation) being made, the accuser may inform the Judge, (denoncier au Juge) that such a misdeed was done, in the sight, and in the knowledge, of so many credible witnesses that it cannot be hidden ; and on this, the J udge ought to do as what belongs to a good Judge, and cause an inquest to be taken ; and if he finds the mis- Tins, also, (as we have seen,) is the very language of Ver- stegan, when treating of the Saxon Battle ! 187 deed to be public and notorious, he may proceed to sentence according- to the misdeed : lor it would be a grievous thing-, if, a man having killed my near relation in a public assembly, or amid a crazed of credible zcitnesses, I must fight, in order to obtain vengeance; and hence, in such cases of open crime, we may proceed by way of indict- ment (denonciation)*. To some persons it, will * " Souvent avient es Cours laies que li lot chieent en Gages de Battaile, ou que apensement li un apele l'autre de vilain fet par (levant justiche; si est bons que nous en facons propre chapitre, qui ensaigner desquiex cas Ten puet appeler, et queles personnes pueent appeler et estre apeles, et lesqueles non, et comment Ten doit fourmer son Apel, et le peril qui est entre.tex Apiaux, et lesques Apiaux li Seigneur ne doivent pas souft'rir : si que chil qui vouront apeler sachent comment il se doivent maintenir en Plet de Gages, et la fin en quoi il en pueent venir, se il enchieent dou plet. — De tons cas de crieme, l'en puet Apeler, on venir a Gages, se li acusieres en vieut fere droite acusation, selone clie que Apiaus se doit fere ; ear il convient que chis qui est apeles s'en deffende, ou (pic il de- meure atains dou fet douquel il est apeler. INIais il i a bien autre voie (pie de droit Apel; car ains (pie li Apiaus soit fes, se chil qui vieut acuser vieut il j)uet denoncier an Juge, (pie tel meffes a este fes a la veue et a la seue de taut de bonnes genes qu'il ne puet estre celes, et seur clie il en doit fere comme bon juge, eten doit enquerre tout soit clie (pie le partie ne se vueille couchier en enqueste, et se il trueve le nutlet notoire et apert, il le puet justieier selone le meftet : car male chose seroif, se l'en avoit ocis mon prochien parent en pleine teste, ou devant grant plante de bonnes gens, se il convenoit que je me combatisse pour le vengement pourcachier ; et pour clie puet on, en tex cas qui sont apert, aler avant par voie de denoncia- tion." (outumes de Beauvoisif, ch. 01. 188 appear, that this passage is capable of being em- ployed for the refutation of the very Argument which I adduce it to support. But what is its true import ? That in every criminal case, there are two modes of proceeding ; by Battle, or by Indictment, (denonciation) ; by private or by public suit; and that an accuser is to take the one or the other. The private suit where the act is private and concealed ; where he has no testimony but his own assertion ; no ground but his own knowledge; no argument but his own word, against that of the offender ; — the public, where the crime is publicly committed, where its reality is notorious, and where the witnesses of the guilt are abundant; — for the absolute in- tention of an Appeal (however censurable that intention may be) is to bring to justice an of- fender against whom there is no evidence that warrants public interference! What, then, does an Appellor do, by showing " violent presump- tion and strong proofs" of guilt ? Why, he shows, that Appeal is not his proper course of proceed- ing ; that Indictment — that the ordinary course of public justice only is lit for him. But shall he be allowed to make his election of the opposite course; to incur the peril of an Appeal where there is no necessity, and then to turn about, and insist en that very " proof," which is an objection to his Appeal, as a ground of support for that very Appeal— that Appeal, patched and manu- factured into what form he pleases — an Appeal 189 accompanied by so many frightful prerogatives, and bearing so hard upon the accused— and yet divested, at his pleasure, of all peril to himself, and of all hope to him whom he. appeals? The passage which 1 have quoted shows, that an ac- cuser is to take one of two courses ; but certainly not both. If he thinks he can prove a crime, he is to proceed by indictment; if he can say that lie knows of a crime, which yet he despairs to prove, he may Appeal the offender to Battle*. We see all the misery and confusion of our situ- * I say, " knoivs of a crime;" for I believe that the law never intended that an Appellor should proceed upon his mere belief of a crime, and upon public rumour, with respect to which he stands upon no surer ground than the rest of the world. " Bracton," says Barrington, " an almost contempo- rary expositor of this statute, [Magna Carta] says, that the Appeal given to a woman is confined to the death of her hus- band INTER BRACHIA SUA INTERFECTI, SI DE VISU I.O- OUATOR : the occasion of which restriction," he adds, " seems to be, that when a woman prosecuted, the Appellee lost his right of defending himself by Combat." But the rule, we may suspect, is more general, and all Appellants sought to speak of crimes done under their own eves, but of which they are them- selves the onl\ living or producible witnesses. The reader must have been shocked at the proceedings in Appeals, recited in these pages, in which Appellors are made to strctir to the guilt of the Appellees, and not merely to their hel'uj of that guilt; and he has, doubtlessly, with the usual self-complacence of our self-eoinplaccnt times, discovered the apology in the barba- rous forms of antiquity. Let us not lay that flattering unction to our souls ! for here, again, the folly and the shame are ours, and 190 ation, when we make use of Appeals to procure second trials ! 61. All exceptions, then, to Battle, grounded on proof of the crime alleged, are properly ex- ceptions to the allowance of an Appeal ; for Ap- peal proceeds by Battle ; and to allow an Appeal is to " grant a Battle." To "grant a Duel" or " Battle" is the accurate expression for allowing an Appeal. Such is the expression of the author of Anti-Duello* ; and the sensible arguments of that writer go, not to the " unlawfulness" of "grant- ing a Duel," under the process of Appeal, but to the unlawfulness of allowing an Appeal, which is " granting a Duel." The unfortunate Statute of Henry VII is the barrier which turns aside the due course of justice in Appeals of Murder f. By not those of our predecessors. Cases are easily supposable, in which crimes may be committed in the presence of one only witness— as this of a husband killed in the arms of his wife— or in that of the two thieves (page 1.74) who committed a robbery together ; and such witnesses are the proper Ap- pellants ; they speak of their own eye-sight and knowledge; and common sense and common decency are not put to the blush, when we permit such persons to swear to the guilt of the accused ! * See above, page 137. t I presume that I may safely affirm, there can be no second trial obtained by Appeal, for any other felony than Murder; because, with respect to other felonies, the law remains in its ancient state. 191 that Statute, and that only, the subject's right to an Appeal, after an acquittal on indictment, is created ; and till the offending part of that Sta- tute is repealed, Appeals of Murder cannot regain their ancient and comparatively rational footing But in Appeals of Treason, where the law is not embarrassed by the private right, the plain sense and plain justice of its aim instantly breaks out. " When, upon the exhibit of the bill in Court, before the Constable,'* says the Anti-Duello, " the Apellant/tfto in the proqfe of his Appeale, and cannot by witness, nor any oilier manner of way, make his demands appeare, he may offer to make proof of his intent upon the defendant with his body by force; and if the defendant will say, he will so defend his honour, the Constable, as vicar- general in amies, (for so is my author) hath power to join his issue by Battle." And here is the explanation of a fact upon which some false reasoning has lately been founded. " The last Wager of Battle in a case of treason, 1 ' says a cor- respondent of the Courier newspaper, "was that of Lord Rea and Ramsey, in 1031, in the Court of Chivalry ; but even in this Court, the pro- ceeding was too monstrous to be permitted to be drawn to a conclusion; and after a great deal of formality, the King dismissed the whole pro- ceedings, upon grounds which clearly show, in zvhat cases only Battle should be allowed, ' be- cause,' said he, ' though, upon want of good proof , 102 the Combat was necessarily awarded ;' yet, being afterward satisfied of the truth by other means, he quashed this mode of trial." The writer does not advert to the distinction between Appeals of Murder and Appeals of Treason, for which latter offence there can be but one trial ;— for the Statute of Henry VII is silent upon offences against the Crown, as w r ell as upon all felonies except Mur- der; and it is one of the many estimable fea- tures of the Law of Appeal, as it at present stands, that while, for offences which imu ediately affect a whole community, there can be but one trial, for offences which immediately affect indi- viduals only, there may be two! If one man offends against the state, i he Verdicl of a Jury for his acquittal is all-triumphant; but if a Jury acquits another upon a private and comparatively trifling charge, the Verdict oi a Jury goes for nothing ! In the case of Lord Rea, the person whom he accused could have but one trial ; if Lord Rea chose to proceed upon his own assertion only, the course by Rattle was open to him; but if further and sufficient proof subsequ* ntly ap- peared, it was but moral justice to his Loidship, to release him from the obligations of his Ap- peal (challenge to Rattle). The writer whom 1 quote does not say that any other and subse- quent proceedings were had; but we ought to question the legal justice of the transac- tion, if it were shown, that after Appeal had, and J 93 gages tendered and received, the Appeal had gone off, and Mr. Ramsay had been subjected to another mode of trial. The King seems to have been placed in a situation in which he could do no other than pass by the offence imputed to the Appellee. The writer does not perceive, that when the King " quashed" the Trial by Battle, in so doing, he " quashed" the Appeal. 62. As we have just had occasion to distin- guish between Appeals of Murder and Appeals of Treason, and as we have lately seen that Ap- peals anciently lay in all criminal cases, we may here cite the account of the occasions on which, according to the Assises de Jerusalem, the Ap- pellee could not escape from his Appellor without Battle. It will thus be seen, that Trial by Battle always extended to civil&s well as to criminal cases ; and likewise, that the vindication of a man's honour is always the leading intention of Battle : — " Cc sont les choses de que il y a Bataille pari' Assise ou l'Usage dou Royaume de Jerusalem, dequoi l'on ne se pcut deffendre par esgart ou par connoissance de Court sans Bataille. " J)e Murtre aparaut Murtre en Court. ' De Traison aparant. ' D'Omecide aparant Murtre en Court. " De Querele d'un mare d'argent ou de plus. " De atraite coutre son Seignor chose que a son Fie ne M>it. v. v 194 " Et de toutes autres choses qu'on pert vie ou membre, ou son honor qui en seroit attaint ou prov6 en la haute Court*." 63. But if, descending from the true fountains of our knowledge, we permit ourselves, for a mo- ment, to take into our view the exemptions from Battle, on the part of Appellors, on account of presumed " strong proof" of guilt in the Appel- lees, such as they are said to have been occa- sionally admitted in modern Courts, or at least held by modern lawyers ; even here we shall have the satisfaction to find, that nothing, on this head, so unsound as that which we see contended for on the present occasion, has ever yet received the sanction of the English bench, or been described or contended for by law writers. " If the Appel- lant," says Pulton, " have any vehement pre- sumption, or sufficient testimony, to prove that his Appeale is true, it will be a good counter- plea, and sufficiently serve him to put the Ap- pellee from his Triall by Battell : as, if the de- fendant were indicted of this felony before the Appeale commenced, or was taken with the mainour f, or was taken with a bloody knife, or other weapon, over the body of him that was slaine, or neere unto him, whereby there was ve- * Assises de Jerusalem, Ch. lxxxi. t This term is borrowed from charges of robbery, in which the mainour ( Fr. mania- , i. e.tnanu tractare) is the thing taken away. 195 hem en t suspicion that he killed him ; or that the defendant did lie alone in the house with him that was killed ; or that he and others did lye in the house with him that was slaine, and received no blows or wounds in his defence; or that hee made no hue and cry after the theeves, or mur- derers, to apprehend them ; or that he will not confesse which of those which were in the house with him did kill the man that was slaine, or committed the felony that was done ; or that he received the man that was slaine into his house, which was seene to go in alive, and after was found dead there, and no means proved how he came to his death *." So, again, according to other writers, " In Appeals, the Trial by Battle is at the Defendant's choice : but if the Plain- tiff be under an apparent disability of fighting, as under age, maimed, &c. he may counterplead the Wager of Battle, and compel the Defendant to put himself upon his country : also, any Plain- tiff may counterplead a Wager of Battle, by al- ledging such matters against the Defendant, as induce a violent presumption of guilt; as, in Appeal of Death, that he was found lying upon the deceased, with a bloody knife in his hand, Abraham Thornton's Jury was satisfactory; and the report appears to be justified by the tenor of the Learned Judge's charge, as stated in the newspapers. The satisfaction of the Learned Judge may possibly stand on other grounds than his private opinion of the prisoner's guilt; for it is one thing to believe a man «uiltv, and another to prove him so; and Juries, upon matters of fact, are to act upon the evidence, and not upon their btlief; they are to tell the Court, not what is their fancy of the yuilt or innocence of a prisoner, but what, upon their oaths, lliey be- lieve has been proved. But, it iiimour is not again deceitful, the Prisoner's Counsel also, are at this time really and inwardly persuaded of his innocence. D I) •202 writers. Where a woman is the Appellant, (which she can be only in the solitary case of the murder of her husband) the Appellee can- not defend himself by Battle, but must submit to Trial by Jury, even where he has been tried by Jury before. But Pulton adds other cases : — " Vehement presumptions of the Appel- lant's infirmities, or weaknesse, are sufficient barres to exclude the Appellee from Trial by Battell with him. As, if the Appellee be within the age of foureteene yeeres, or above the age of threescore and tenne yeares, or within orders, or a woman, or be maihemed ; whether he were maihemed by the Appellee, or by any other. And some do hold it for lawe, that if the Appel- lant be above the age of threescore yeares, the Appellee shall no more Wage Battell against him, than against an infant within age, or a wo- man*." The same author, though doubtfully, puts the case of an infant Appellor in such a manner as to induce a belief of the ancient anxiety of the law to preserve to the Appellee * Pidton, p. 195. So, also, Sir William Standforde— " Et nota, que conic vehement presumptions del culpublenes del defendaunl, sount causes a ouster le defendaunt de son Tryal per Battayle ; iss\nt vehement presumptions del infirmitie ou imhecilitie de l'Appelhunt, seront hones causes a ouster le de- iei.;iaiit de son Trial par Battailc, come appiert per Britton, fo. 10." The sense and truth of the matter is, that these in- firm:! m - in the Appellor, bar the Appeal, and therefore bar the Battle. 203 his right of Battle: " An infant within the age of twentie and one yeares may have an Appeale of the death of his ancestor, (and in like sort he may have any manner of Appeale) : but, notwith- standing', the plea shall remaine to be tried, untill hee come to his full age of one and twentie yeares \j'or that in this case, the Defendant cannot Wage Bat tell against him : At t amen queerer 02. To all this, I shall only reply, That every denial of Battle to the Appellee is a departure from the ancient law ; and that modern Courts will certainly be cautious how they enter too freely into the race of degeneracy. An appeal is an application for Battle or licensed Duel ; Appellants must be told this ; and if they do not like the Battle, they must go away without the Appeal. Nobody forces them to Appeal ; they force the Appellee to light. They challenge the Appellee; he accepts the challenge, because he has no other alternative than to be hanged, or at least to put himself into much danger of be- ing hanged. — But to the immediate point in hand. By the Norman law, there could be no ousting of Battle, because tin' very few persons who were ex- empted from fighting themselves, could only pro- secute I i ir Appeal by lighting by their champions, and taking upon them all the risks of the cham- pion's defeat. By the Saxon law, the Appellors situation was still worse, and the Appellee's still 204 better. " The accused had the liberty to chuse another in his stead; but the accuser must per- form it in his own person, and with equality of weapons*." The persons Avho, according to the Assises de Jerusalem, were exempted from fight- ing, are of three descriptions only ; women, men who are maimed, and men who have passed their sixtieth yearf. 66. A third class of exemptions from Battle, in behalf of Appellees, is found — that is, pretended to be found — in the civil conditions of persons ; but, here, we have the perpetual mistake of apply- ing to the encouragement of Appellors, what was intended for the protection of Appellees. I repeat it, that the ancient law was always labouring to protect men from being appealed to Battle — and not at enabling them to appeal others, at no risk to themselves! It is thus with the case of priests, who, Pulton would persuade us, may oust Ap- pellees of their Battle; — but the law means, that * Verstegan, p. 64. t Assises, ch. cvii. — The good sense of this limitation is pal- pable, and shows, once more, the aversion of our ancestors from disjoining Appeal from Battle, — and Battle by the Appellor himself. Women, men who are maimed, and men who are past their sixtieth year, can never gro7V fit for Battle; but the sick may grow well, and infants may grow older, and fight another day." Accordingly, with respect to these latter, the Battle was not ousted, but deferred. 205 priests shall not be forced to Battle, if appealed. This may be seen in the Grand Coustumier de Normendie; where, however, the protection is re- stricted (o unmarried priests, and grounded solely on the dignity of the church, which would not suf- fer her regular priests to be thus treated, but which, if a priest married, or laid aside the canonical habit, abandoned him to the weapon of the Ap- pellor. A similar exemption has been set u\)Jor peers of the realm — but on still worse foundation; for there is nothing to save a peer from lighting, in an Appeal, whether Appellor or Appellee. The King, it is said, cannot be appealed, that is, appealed to Battle ; — and this may have been the case with all lords paramount, under the ancient system ; but inferior lords might be ap- pealed by their men (homines) or tassals. For the rest, the old law knew of but three civil classes, 1. knights; 2. simple freemen; and, 3. villeins or slaves ; now, every freeman was the equal of another, as to the administration of jus- tice : and so just were our ancestors, that though there was one description of armour for knights, and another description for sergeants or simple freemen, yet if a simple freeman was to light with a knight, he was, for that occasion, armed as a knight himself. 'This is the allusion contained in our last quotation from Verstegan, where he speaks of the " equality of weapons." A peer of the realm, as 1 take it, can be known, to the 206 law-military, only as a knight ; and if, in our day, and under that Law of Appeal which we so much admire, a peer should appeal his valet, or the valet appeal the peer, both must fight, and both be armed as knights *. I am not able to ex- plain, why, under our modern law, no Appellor of Felony can fight by Champion, unless it be true, as asserted by Verstegan, that by the Saxon code Champions were allowed to Appellees only. In that case, a later rule may have placed both parties on the same level |. 67. A particular instance of legal exemption from Battle, resting on the civil condition of the party, is found in the freemen of some, and perhaps all cities, founded on their respective charters ; and a report is abroad, that in the case of Ashford and Thornton, the Appellor, since issue by Battle joined, has been made a freeman of London, with the hope of thereby defeating the Appellee's right to Battle. That so despi- cable a stage-trick could, in any circumstances, under colour of law, obstruct the course of sub- stantial justice, is utterly impossible. The Ap- pellor is already before the Court; he entered it us a non-freeman, and a non-freeman he must * According to the Assises, in all Appeals of Death, knights, as well as others, are to fight on foot. 1 In writs of right, the Battle must be fought by Champions, For the reason, see Rlackstone. 207 remain, as to this suit. But the whole story must be founded in mistake ; for it cannot be unknown to his Counsel, that, as already intimated in these pages, the privilege in question is of a directly opposite bearing to that which such a proceeding supposes. It is a privilege to be able to avoid Battle if appealed ; that is, if the citizen is the Appellee ; but it in no respect takes from the non-freeman his right of defending himself by his body, because he may happen to be appealed by a citizen. If a citizen is appealed, (and apparently, only in the case that he is appealed of a crime alleged to have been by him committed within the walls of his city*), he is not to be challenged to fight, but may discharge himself by his oath, or by the oaths of his neighbours or compurgators; that is, he may decline Trial by Battle, (legem manifest am) and elect that of the Corsned f, or else that of the Wager of Law, (legem saeramentum) ac- cording to Free Law, (legem liberam) or the rights and privileges belonging to freemen, as distin- guished from villeins, cerfs, slaves, or persons in the servile condition. Very different is this from r Want of leisure has prevented me from referring to the original charter of the city of London; and that circumstance must apologize for the obscurity of the language in my quota- tion, at p-!<„M' 124. My inference, as to the restriction of the privilege ol citizens, even when appealed, is drawn from the words of the charter of the city of Dublin, (above, p. 126) which I have found quoted in a newspaper. i See above, page 118. 208 the extravagant misconception, that a citizen is privileged to appeal his fellow-subjects in his turn, and deprive them of the Trial by Battle — them who have not the benefits of civic freedom — who cannot claim Free Law, but have no al- ternative but to defend themselves, or to put their lives, at the bidding of the Appellor, into the hands of a Jury. The privilege of citizens is for themselves, and not against their fellow-sub- jects, except as the privilege of Free Law is against all criminal suitors, where the citizens are defendants, inasmuch as these latter are enabled to discharge themselves upon easier terms than their fellow-subjects *. * The real import of the civic privilege in question seems to be as little understood, and as little suspected, as are its origin and intention. I submit, here, with more formality than before, (page 125) that under the words of the Charters, every freeman, of cities having such Charters, is equally exempt from Trial by Battle on the appeal of the subject, and from Trial by Jury on any suit of the Crown ; but that in both cases, he may dis- charge himself by Wager of Law, or other ancient custom of the city. The nature of Wager of Law has been explained above ; and I risk the question, as one very important to be solved, whether, at the present day, in the city of Dublin, (page 120) for instance, if a freeman is impleaded for treason :.t tin suit of the Crown, the treason being charged to have been committed within the city, such freeman maj not dis- charge himself !>v the oaths of forty other traitors, but such as, being unattainted, are, in the eye of the law, "good arid lawful men ;"— whether freemen of cities so circumstanced are not 209 OB. I have now shown, as I think, (and in spite of my fears to the contrary,) the firmness of the equally protected against Trial by Jury in all other " pleas of the Crown ;" whether these tearful privileges do not stand on the same basis as the exemption from Battle at the suit of th c subject ; and whether it may not be as possible to " surprise" the Courts and country by a Wager of Law, or G; ge of Law, in answer to an indictment, as by a Wager of Battle, or Gage of Battle, in answer to au Appeal ? These questions appear to me to be so serious, that the hope of their being met by a refu- tation iu point of fact, or remedy in poit.t of law, counter- balances the regret which I should otherwise feel at seeing my- self called upon to propose them. It will be remembered that Wager of Law, at the least, like Wager of Battle, is still the law of the land ; and that no particular legal enactments, which have been framed for ousting, in special cases, W r ager of Law, (though they are good against all the rest of the King's subjects) can stand against the Royal Charters possessed by the freemen of cities ; and that no general statute can have any more effective operation. Witii respect to the origin and intention of granting this privilege (for it is one privilege) to the freemen of cities, notions equally mistaken appear to prevail. It is said by all autho- rities, (first the high, and then the low) that it was granted in favour of the unmilitary habits of persons engaged in arts and trade, and sometimes that it was given in homage to the value of such pursuits; a theory upon which is attempted to be founded an argument, by analogy, in favour of an equal ex- ception of all other subjects, in like manner employed 1 . But it is to be remembered, first, that the privilege is not a general right, common to all the King's subjects, but a privilege, granted, through special favour, to particular communities of 1 Even tills, however, would show a monstrous perversion, in the ittemptto clothe with this character a husbandry labourer ! E E 210 ground on which Battle stands in our legal code ; the reasonableness of its existence as part of the men. Next, however, as to the origin and intention ; and here we shall find, that the unmilitary habits of the freemen of cities are rather the cause of the desire of such a privilege, than that of its being accorded ; while, nevertheless, the policy of our Kings, in encouraging arts and trade, and therefore in founding of cities, was doubtlessly one of the causes why the prayers of those cities, for this exemption from the constraint which it was thought right to impose upon the subjects in general, received the royal attention. We must repeat, that the privilege in question is that of being tried as free persons' (as freemen, distinguished from cerfs or slaves) and yet as persons whose notions of honour did not extend to trial by arms ; as freemen, but not as soldiers or warriors. To under- stand the matter thoroughly, we must once more (see page 205) carry back our imagination to the time when European society consisted but of two great classes, that is, of freemen and slaves ; when a third class was created by the subdivision of freemen into knights and simple freemen ; when national and personal defence was the noblest, because it was the most im- portant, civil employment ; when trade was limited and insig- nificant, and when the arts (including the art of husbandry, and excepting only the art of war) were abandoned to the pursuit of slaves. All freemen, under these circumstances, were war- riors ; and freemen, at this time, and indeed at all others, had a law of their own. In matters of controversy, they were to be believed on their oath ; and this high privilege was sup- ported by the magnanimous and concomitant provision, that they might always be called upon to prove or defend their honour by their lives ; by Trial by Battle. It was under the same circumstances of society (as I suspect) that the other an- cient modes of trial, commonly called Ordeals, sprung up ; modes of trial in which the accused was neither permitted to 211 Law of Appeal ; and the rarity of the cases in which, upon Appeals, it can be denied to the defend himself by his body, nor to discharge himself by his oath. In the rudest times, there was a numerous portion of society, including women, priests, the young and the aged, the sick, the blind, the lame, and the whole population of slaves, who could not defend themselves by Battle ; who, therefore, had no claim to be believed on their oaths ; and the greater part of whom were not allowed to offer them. Priests were excepted, because that was accorded to their sanctity, which was yielded to freemen as due to their honour; and hence, what the law calls canonical purgation, in contradistinction to the vulgar purgation, or trial of the common people, of which we are presently to speak. Cerfs or slaves, on either hand, could have no trial by arms nor by oath, because they had neither military, civil, nor religious character, to justify such an indulgence 1 . Thus, then, there were three classes of trials for society at large ; Battle for freemen, oaths for priests, and fire and water for women, infirm persons, and slaves. But, bv degrees, the arts of peace increased in estimation; their professors rose in the scale of society, and were privileged for their encouragement; and, on this occasion, a new class of freemen ivas created — freemen, not by birth and landed tenure, but by Charter — freemen not warlike, but composed of arti- i Slaves can never he allowed to give testimony on oath, that is, to be lawful witnesses in the judgment of Courts or Legislatures, because, among other reasons, they are not masters of themselves, nor citizens of the the one or other sex is held to prevail. The reader will probably only laugh at this distinction, unless he is wise enough to discern in it a new proof of the anxiety, at times, of the Courts to get rid of private prosecution — of the English Courts to escape from our barbarous Norman and Sajcon Ap- 224 of any ordinary magistrate*; and, II. of the right to share, in the event of condemnation, in the peals of Murder, and of Henry VII's second criminal trials — and also a new proof, that not public justice, but a submission nolens volens to the private right, is the principle of the Ap- peal of Murder. * Sir John Hawles, (page 64, above) and after him, (as we shall see) Mr. Home Tooke, have observed, that the interven- tion of Grand Juries is not provided for in Appeals, or suits for capital offences on the part of the subject ; and have thence inferred, that Grand Juries were not (as is usually said) insti- tuted in favorem vita, or for the general protection of ac- cused persons, but exclusively for the protection of persons accused by the Crown, as by indictment ; and have hence gone on to contend, that ex officio informations for libels, and the consequent absence of the finding of a Graud Jury, is a violation of the constitutional rights of the subject ; but had the historical information and political acumen of these gen- tlemen been larger and greater, they would never have held such an argument, either as founded on fact or on reason. That the office of Grand Juries is to inquire between the Crown and the subject, and that it have no cognizance of the Appeals of subject against subject, is acknowledged; but the reasons are exceedingly different from those suggested. In the first place, Appeals, that is, the natural right of private redress, existed before Grand Juries ; and, on the foundation of public tribunals, and the assumption of the administration of justice by the sovereign, the new system was framed, not to carry into effect the old practice of Appeals, but the new practice of Indictments. To this new system belong Grand Juries, and their office is at once in favour of the public peace, and the liberties of the subject; and it is hence, that as far as the Crown is concerned, Grand Juries act in favorem vitac. •225 common mercy and justice of the Crown; and whom also, (taking out of the pale of the general Grand Juries have nothing to do with Appeals, for this plain and sufficient reason, that Appeals are not the suits of the Crown ; hut only an ignorance of the history of Appeals, and their ahuses, can betray us with a belief, that from their ab- sence in these suits, the absence of the principle, in our law, of an inquest in/avorem vitce, is to be inferred. The very nature of an Appeal, conducted on its true prin- ciples, (and the admission, right or wrong, of which principles, has been one of the reasons of the continuance of Appeals, after the establishment of a system of public justice) excludes, in great measure, the right of interference, either of Grand Juries or Petit Juiics. Appeals were originally intended, by our laws, for cases in which there is no evidence to go to a Jury ; cases in which the Appellant has nothing, or little more than nothing, to offer, but his own assertion; where he pre- tends to accuse on his own knowledge. — I have already ex- pressed my suspicion of this fact ; and that suspicion I find amply confirmed by Pulton* It is obvious, that in these cases of accusations made upon the personal knowledge of the accusers only, Juries of either description must be out of the question. As Juries are to act upon evidence, they must, in cases where there is little or no evidence, for the most part, release the accused. To meet this difficulty is the very purpose of Appeals, properly understood ; and the only true question that arises on them is, whether the principles on which they rest deserves to hold a place in the science of legislation. It is certain that many cases of guilt arise, in which, for want of legal, and even of human evidence, the accused must be acquitted. In these cases, the ancient Law of Appeals assumed, that it would be a proper middle course, be- tween letting an offender too easily escape, and the danger of convicting an innocent person upon false or insufficient evi- <; (. 226* liberties, and the protection of the community, the laws and the constitution) it places at the dence, to let the two parties settle the question of their re- spective pretensions to veracity (the one affirming and the other denying) by the Battle to which their quarrel so natu- rally led. The whole argument of the Anti-Duello is against this principle of law ; that writer contending, (according to the usual sentiment of modern times) that where there is no suffi- cient evidence of guilt, human justice ought not to hunt about for by-ways of reaching the accused person, but take the opeu and safer path of totally discharging him 1 . Such is the true principle of Appeals; and yet so far was the ancient and rational law from rejecting, even in respect of Appeals, the principle of a previous inquest in favorem vit remarkable, that, as will presently be'seen, on the oc- casion alluded to, the alarm ;it reform came from the Opposi- ioii i»ide nt' ihe House. 230 to bring in a bill for taking away the Appeal of Murder. Upon debate, the motion was post- poned. Of what passed in the House, on Mr. Stanley's motion, I can find no trace but in the statements made by Mr. Home Tooke, in the course of his defence, on his trial for a libel, in 1777. "This motion," said Mr. Tooke, "was supported by Mr. Selwyn. Mr. Dyson, a Lord of the Treasury, declared himself to be entirely of their opinion : ' because the right of Appeal for Murder, was (he said) a shackle upon the King's mercy: but he begged a delay till the next winter, when he promised it should have his assistance ; that so the motion might not appear in the Journals of the House all the summer, to alarm and terrify the minds of the people before that Bill could be passed into a law, for which at present, (he said) there was not time.' " " The Attorney-General, in his support of that motion, reviled the right of Appeal in the subject for Murder, as a Gothic custom. Gothic was the insidious charge he brought against it: it was a Gothic custom.*" 77. What was ultimately done with Mr. Stan- ley's motion, I have not discovered ; but, in the year 1774, on occasion of the discontents in the North American Colonies, a Bill was brought * Hargravc, xi, 27a. 2:37 into the House by Mr. Wallace, entitled, a Bill for the Administration of Justice in Massachusetts Bav : and in that Bill there was a clause for taking away the Appeal of Murder in the Colo- nies. On this occasion, an interesting- question appears to have been asked by Governor John- son ; namely, whether the abolition was to pre- vent the Appeal of Murder alleged to be com- mitted within the Colonies, from being' brought in England, as well as within the Colonies them- selves ; and the answer to this question, namely, that it was to prevent such Appeal, both in the Colonies and at home, brought on a sudden and incidental debate on the taking away of Appeal of Murder in general. The debate was sup- ported by some of the most distinguished mem- bers of the Lower House of Parliament of that day, and the report which has come down to- us preserves the opinions delivered upon that occa- sion. Among those who spoke, were Mr. Dun- ning, (afterward Lord Ashburton) Mr. Wedder- l)iirn, (afterward Lord Loughborough) Messrs. Edmund and William Burke, Mr. Stanley, Cap- tain Phipps (afterward Lord Mulgrave,) and Mr. Fox. The debate was closed by the withdraw- ing of the clause; but Mr. Uoso Fuller, being ''• the more convinced, h\ what he had heard that day, that the whole law relative to the Appeal for Murder ought to be repealed," gave notice, that he would. on some future duv, make a mo- '2.38 tion to that effect*. Mr. Home Tooke now wrote a letter, which he signed with his initials, (J. H.) and printed in the public papers'), in defence of Appeal of Murder; and 1 have not learned that Mr. Fuller ever redeemed his promise to move for its abolition. 78. In 1777, Mr. Tooke was tried for pub- lishing an alleged libel, in which the King's troops were charged with " murdering our be- loved American fellow-subjects," at Lexington, in Massachusetts. The Attorney-General, at that time, was Mr. Thurlow, afterward Lord Thur- low. In the course of his defence, Mr. Tooke introduced the question of Appeals of Murder, and stated his arguments in their behalf^; about * • See Appendix. f Hargrave, xi. 278. | In July, 1777, John Home (Tooke), Esq. was tried on an ex-offitio information for a libel on His Majesty's Government, on the employment of troops in America. The libel consisted in an advertisement, which was published in the Public Adver- tiser, and oilier papers, in these terms :— " King's Arms Tavern, Cornhill, June 7, 1775. At a spe- cial meeting this day of several members of the Constitutional Society, during an adjournment, a gentleman proposed that a subscription should be immediately entered into by such of the members present who might approve the purpose, for raising the sum of i'100, to be applied to the relief of the widows, or- phans, and aged parents of our beloved American fellow-sub- jeets, who, faithful to the character «>(' Englishmen, preferring death in slaverv, were, for that reason only, inhumanly mur- 239 the same time, (1770-1777)* the cases both of dercd by the King's troops, at or near Lexington and Concord, in tlic province of Massachusets, on the 19th of last April; which sum being immediately collected, it was thereupon resolved that Mr. Home do pay to-morrow, into the hands of Messrs. Brownes and Collinson, on account of Dr. Franklin, the said sum of £1(10, and that Dr. Franklin be requested to applv the same to the above-mentioned purpose. John Home." The advertisement was repealed al many subsequent dates. Mr. Home made an elaborate defence, in the course of which he said as follows: — " Gentlemen, in this matter of charging the King's troops with murder, there is a very striking circumstance ; and that too, I suppose, the Attorney-General will have forgotten. It is well known, that amongst other oppressions and enormities, which gave me pain, murders (without any contest and dispute" committed and pardoned, gave me much. I caused the soldier* in St. Cieorge's fields to be prosecuted -the King's troops— for murder. I took them up. It was called no libel by the then Attornev-vieneral ; no libel against the government. The> were tried for murder. I did intend to have told you how they escaped ; but it matters not. They were tried ; thev were charged with murder; ami that not oidy in a court of justice; I advertised it, I signed it with my name: the same printer 'I forgot to a-k him as an evidence ; indeed I had be- fore asked him for a newspaper that contained the advertise- ment, but lie could not scud me one; he could have proved it : ml it is notoriously known, 1 charged that murder upon the king's troops, with my name. It was not thought a libel then, thought a very great affront ; for those troops had been thanked, in the King's name, for their alacrity upon the occa- sion. What then, if the King's name had been abused to •auk men for their alacrity, what then? (F did not mention but 1 mentioned the murder committed. ) Thee was 240 Allen and the two Kennedies oecurred, (see murder committed. I saw it with my eyes ; I saw many barba- rities committed. I might have been amongst the slain. And shall I not mention what T saw with rny own eyes ? Shall [ have no trmgne nor understanding but in a court of justice "? I certainly will. What followed : Soon after that, Mr. Stanley, a considerable officer in the Slate, moved in the House of Commons for an Act of Parliament to take away from the subject the right of Appeal in the case of murder; because I had caused Appeals to be brought; that is, I assisted the parties who brought them. This motion was supported by Mr. Selwyn. Mr. Dyson, a Lord of the Treasury, declared himself to be entirely of their opinion ; — ' because the right of Appeal for Murder was (he said) a shackle upon the King's mercy ; but he begged a delay till the next winter, when he promised it should have his assistance ; that so the motion might not appear in the journals of the house all the summer, to alarm and terrify the minds of the people before that bill could be passed into a law, for which at present, he said there was not time. To avoid its alarming the people before it could be passed into a law !' Well, it did not stop there : some notice was taken of this, but not much, as it was, for that time, dropped. But this motion was revived some time after. Mr. Rose Fuller (a better man to come forwards upon such an occasion) gave notice of a renewal of that motion in the House of Commons ; he was supported by Mr. Attorney-General. I was alarmed at that, and (I will prove it; I am not now assert- ing what I will not prove) I instantly published what they might have called a libel, if it had not been upon such tender ground. I sent it to the public papers, with the initials of my name : I inserted it in such a manner as could not fail to make ii be known to come from me. That did not content me. I r <-quested an honorable member of that house, who is now in ourt, Mr. Alderman Oliver, to present my compliments to 241 page 71 # ) and from that period, up to the year Mr. Rose Fuller and the Attorney-General, and to inform them, that upon that ground, I was ready to go even to death; that I would stick at nothing; that, on such an occasion, I feared no prosecution for libel. I entreated them to tell me when they would bring the motion on, that 1 might be present to hear what passed, which I would faithfully report, and freely comment upon. The Attorney-General in his support of the motion, had reviled the right of Appeal in the subject for Murder, as a Gothic custom. Gothic, was the invidious charge brought against it: it was a Gothic custom! Why, gentlemen, so are all the rights, and liberties, and valuable laws which we have; they are all Gothic. But this was to be plucked out from amongst the rest : and because it is Gothic that men should be punished for murder, because it is a shackle upon the King's mercy, murderers are not to be punished ! Gentlemen, this attempt has a near affinity with this prosecution of me, for a libel against the government, for charging the King's troops with murder. Gentlemen, I beg vour attention to this matter; for you see they have got farther now in their s\steni and their doctrines: and the mere charging of the Kind's troops with murder is to be considered a seditious libel against the King and the government ! But what thought the A flippant and ill read labourer in the great work of revo- lution (the author of Historical Questions, inserted in the Morning Chronicle,) has lately asked, how it happened that Count Coningsmark, who was charged with the murder of Mr. Thymic, was, at a ceitain subsequent period, at large, upon the Continent. The reader has seen (page 8b") that the Count wa> at large for no better reason than this — that he had been acquitted of the charge, though he was held to bail to answer any Appeal, " it' brought." I I 212 1817, the whole proceeding, both in practice and theory, appear to have slept undisturbed. the House of Lords, at the time of the Revolution upon this Gothic custom? King James the Second had cut off and mur- dered .many of the peers, under a sham trial of a commission of peers whom he picked out. At the Revolution they took care to secure themselves from such trial in future ; and there- fore, on the 14th of January, 1GP.9, they entered this among their standing orders : — ' Whereas this day was appointed for taking into consideration the report made the 8th day of this instant January, from the Lords Committees of Privileges con- cerning the trials of peers : after due consideration had thereof, it is resolved by the Lords spiritual and temporal in Parliament assembled, that it is the ancient right of the peers of England to be tried only in full Parliament for any capital offences. And il is ordered that this resolution be added to the roll of standing orders of this house/ This was to secure themselves. But, when they had done this, some noble spirits amongst them, being alarmed and apprehensive, lest under this pretence, in future times, the subject might be deprived of his right to prosecute those who had committed murder, they, (three days afterwards) on the 17th of January, entered the following de- claration : ' It is declared by the Lords spiritual and temporal in Parliament assembled, that the order made the 14th day of this instant January, concerning the trials of peers in Parlia- ment, shall not be understood or construed to extend to any Appeal of Murder, or other felony, to be brought against any peer or peers : and it is ordered that this declaration be en- tered on the roll of standing orders of this house.' The peers, at the Revolution, 'all Gothic as it was; took this right of the subject, and hugged it to their bosoms ; and this, too, in their own case, against themselves. They would not themselves be exempt from a possibility of being prosecuted to judgment, that justice might be done, for the lives of the King's subjects, 243 7i). In the House of Lords, though the ques- tion of abolishing- the Appeal of Murder seems never to have been raised, a remarkable instance of reverential care for its preservation, as against the Peers of the Realm, (upon whom it operates with almost peculiar severity) in common with their fellow-subjects, occured, (as has already appeared, page f>7, note) at the Revolution *. 80. Though the case of Allen, and that of the Kennedies, and the motion of the Attorney-Ge- neral, which has been mentioned, might be ex- pected to have turned the attention of Members, as well as that of the public at large, to the history, operation, and merits of Appeals of Murder, yet the debate on the Massachusetts 13i!l is marked but by a superficial acquaintance even if slain by themselves. However, gentlemen, this Got/tic right of Appeal i-> not as yet taken from us : and I do firmly believe, that by the resolution which I shewed, and by the message which I sent, and by the libel which I published (if such things be libels , I do believe I have the merit of putting off ;>l leasl lor that time) so infamous an attempt. Infamous four-fold, if you consider the doctrine now brought forwards. The King's troops shall not even be charged with murder! Observe then what follows; the Kuiii perhaps will not pursue; the subject shall lose his right of Appeal; and you shall not • veil dare to *a\, that the King's troops have committed mur- der.'' Margrave's State Trials, \i, 27;'>. ' See the statement repeated, with the reasons and circum- stances, in Mr. Tooke's speech, in the preceding note. 244 with, and often erroneous understanding, of those subjects. Mr. Burke's proposition, that our mu- nicipal law is a whole, the parts of which ought not to be separated, is equally extraordinary and untenable. If it can be maintained, our laws are like those of the Medes and Persians, and cannot advance with the progress of society. When the same gentleman likened the Appeal of Mur- der to the Appeals of Rape and Robbery, he overlooked the important consideration, that it is only the Appeal of Murder (or rather the Appeal of Death) which can be made use of to procure a .second criminal trial. As the law stands, if a man robs my hen-roost, I may demand a Duel with him, instead of causing him to be indicted for the offence. The two courses are equally open to me. I may indict him, if I have evidence to produce to a Jury, and I may fight him, if I have 7ione. But I cannot do both. With respect to Murder, however, I may. I may cause a man or woman to be indicted — I may employ counsel against the prisoner — I mny produce evidence; and if he or she is acquitted, I may afterward appeal him or her, &c. Mr. Burke allowed that Combat -a as part of the Appeal, and charac- terized it according to the usual common-places. He did not know, (what, in these pages, we have beej) so repeatedly called upon to confess) that the thing sought for by Appeal is Battle; and that the barbarism of Battle is the barbarism of 243 Appeal. Mr. Fox, at the same time, was in error, when he deseribed the Appeal of a Murder, as " the only instance in our laws, in which satis- faction is allowed to the injured by the blood of another;" since the same satisfaction is al- lowed in regard of all capital offences. 81. Mr. Skynner (as far as appears from the report *) entered most particularly into the pro- visions of the Law of Appeals, and in so doing fell into several mistakes. " The Appeal for Murder," he said, " is considered as a civil action, and to go on, hand in hand, with the criminal prosecution.'' Sir George Savile, very justly, as well as smartly, replied, that he could not understand " that to be a civil action which ends in hanging." Mr. Skynner evidently con- founds his theory of Appeals of Murder with the civil actions for assault and defamation, " which may go on, hand in hand, with the criminal pro- se* ution ;" hut which have for their " ends,*' the our, criminal punishment, and the other, civil damages. What the same gentleman could afterward m< an, (supposing him to have used shorn) by the words, " the Appeal of Murder ' Sit tin' Appendix. The report is ver\ imperfect, and in some places almost unintelligible; one reason tor which, per- haps, i^, that the 5 taii(iiiiL r order for the exclusion of strangers •■v;\y stricth enforced during flie »J ;bate. 246 may be reduced to a civil action," is worth inquiry, if there is the slightest foundation for the remark. 82. On the opposite side of the argument, we find, in the same report, some of the finest max- ims of jurisprudence laid down, which can pro- ceed from the lips of man; those maxims which hallow human law, and almost raise it above humanity # . " I apprehend," said the Attorney General, " that criminal laws were made to save the lives of persons, and not to destroy themf." " A Trial," said the same enlightened lawyer, (that is, a judicial process,) "is not complete without the power of pardon" in the Judge. Mr. Fox magnificently said, " I look upon the power of pardon a right in the subject to claim." 83. Mr. Fox, and others, whose opinions were adverse to the Appeal of Murder, still declared themselves against its abolition in the American * " Of law, no less can be acknowledged, than that her seat is the bosom of God ; her voice the harmony of the world ; all things in heaven and earth do her homage ; the very least, as feeling her care, and the greatest, as not exempt from her power." Hooker. t That is, society interposes in the quarrels of its members, to prevent the innocent from suffering under the arbitrary vull and unfounded rage of private persons. 247 Colonies; but this course was taken, ostensibly and constitutionally, because they Mould not consent to have one law in the Colonies, and another law at home; and secretly and po- litically, perhaps, because its abolition, at that juncture, in the Colonies, would have been a furtherance of the ministerial measures of the time. They condemned the law in a general view, but they would not consent to its partial alteration, for a particular purpose. This brief analysis of the spirit of the debate of 1774, may be useful, to prevent the example of the rejection of the proposed partial abolition of the Appeal of Murder, at that time, and under the circum- stances of that time, from being drawn into a precedent, to guide any member of Parliament under other circumstances, and at the present day 84. The other arguments adduced against the - lause, though immaterial to the merits of the Appeal of Murder in itself, are sufficiently in- teresting to all those Colonial possessions which form so important a part of the British empire, To justify a short digression in their regard. Mr. Dunning doubted whether the Appeal of Mur- der existed in America; and Mr. Moreton was ronvinced that it was not. Mr. Fox, on the other hand, believed it to be law in the Colonies, and would not consent to the elause, because 248 ft he thought the Americans hat} a right to the same laws as we." Captain Phipps " wished to give every man in America the same kind of right that we enjoy ourselves. The Americans had carried with them all the privileges, laws, and liberties of the country : if they had a right to part of those laws, they had a right to the whole." Mr. Skynner did not dispute the ex- istence of the law in America, but imagined that it could not be brought into operation there, from the want of a Court of Chancery. The writ, he said, must first issue out of the Court of Chancery ; but, as there was no such Court in America, it could not take its rise in that country. Again, " a writ," according to the notion of that gentleman, " can only issue when the person is in the actual custody of the marshal." Upon all these points, Mr. Skynner, as we shall pre. sently sec, was under a mistake. That British Colonists carry with them, to their respective Colonies, " all the privileges, laws, and liberties of the country ; and that as they have part of the laws, so they have the whole ;" there is no one, it is to be believed, who, at this day, will be disposed to controvert. At this day, then, in every British Dependent Colony, the Appeal of Murder exists in as full force as within the realm itself. Nay, it subsists also, at this day, in the same force, in the British Independent Colonies of the United States of America, as it 219 does in England, and as it did in those Colonies, in the year 1774. The Courts of the United States admit, as the law of the land, whatever was the law of England previously to the sepa- ration of the Colonies, and has not since been spe- cially abrogated by their own domestic laws. In reality, the Appeal of Murder belongs to the whole ancient law of Europe, and is therefore, probably, law in every European Colony # . With respect to the assertion, that " the writ can only issue when the person is in the custody of the marshal," that is entirely untrue; as is equally so the representation, that the Appeal cannot be brought but by writ issuing out of Chancery. Whether or not Mr. Skynner was accurate in his assertion, in the year 1774, that there was no Court of Chancery in America, I am not prepared to say; but there are Courts of Chancery, at this day, in most, if not in all the British Co- lonies, and iu some of the states composing the United States of America. But further, Ap- peals (as the ordinary law books will show) may be brought before any of the King's Justices of Assise, Sheriffs, &c. Thus, the Appeal of Mur- der exists in every British Colony, dependent and independent, and with or without a Court of Chancery ; and this either because British * Ex gratia, it is the ancient law of France, and is therefore, probably, the law of Lower Canada, the basis of whose code consist* in the law or customs of Paris. K K 250 Colonists invariably carry with them " all the laws, privileges, and liberties of the country ;" or, because, in British Colonies governed by foreign laws, those foreign laws equally bestow the Appeal of Murder. 85. One thing, however, in the debate referred to, is equally conspicuous and satisfactory. Of all the honourable speakers, no one dreamed of defending the Appeal of Murder as a help to public justice ; and we may safely consider the objections to its abolition as confined to two only ; namely, 1°. An objection to all reform or innovation ; and, 2°. An objection to the removal of this par- ticular exception to the prerogative of mercy in the Crown. 86. As to the objection first in order, what- ever, in the year 1774, might be the Whig horror of reform or innovation, we have nothing to ap- prehend from that feeling at present. To be serious, however, we must observe, First, that every reform stands upon its own merits ; reform never being bad, simply because it is reform, but only because it is bad reform. Se- condly, the position, that the discontinuance 2ol of the Appeal of Murder would be an innovation on the Constitution, is absolutely false. 'The Appeal is merely a part of our municipal law, a part of our criminal code, and any alteration concerning it would no more be an innovation on the Constitution, than were the acts which made forgery and frame-breaking capital of- fences, or which made it penal to possess a given quantity of paper of given manufacture, or than would be the acts that should alter the law in any of those respects. Thirdly, the Appeal of Murder, as now subsisting, is no part of our ancient Constitution nor code of law ; it is alto- gether a modern contrivance; a mere "thing of shreds and patches ;" the most violent inno- vations have already been made in it; the statute, of Henry VII is itself a grievous innovation. It is open to every further innovation which we may judge to be for the benefit of our criminal system of jurisprudence. »7. The only argument, in behalf of the Ap- peal of Murder, for which a serious answer is proper, is that, which, without reference to the antiquity and pretended connection of the Ap- peal with the Constitution, pretends to assert, that an exception, in the case of murder, to the prerogative of mercy in the Crown, ought, upon principle, to be a part of our system of govern- ment. A man may maintain an opinion to that 252 effect, without violation of logic or of history, and therefore such an opinion deserves a serious reply. 88. It is not necessary to dwell, in this place, on the consideration, that, if the opinion is cor- rect, the existing Law of Appeals must seem to be in a state very inadequate to the great purpose it is to answer. As it originally stood, when it was scarcely possible that any murder should take place, but some one had a right to appeal the murderer or murderers, it was a law, equal, general, and powerful in its operation ; but, in its present contracted and capricious state, it must be partial, and therefore unjust; for the most part inoperative, and therefore feeble. If it is really useful, "reform it altogether;" restore to it its universality ; let every subject have the Ap- peal : we know how to render it generally avail- able ; we know the grandeur of our Habeas Corpus Act; we know the fulness of the powers of the Court of the Chancery ; let us emulate these, and let every next friend have the right of Appeal, that so the private right may never be merged in the public one, and private law and private motives may always have the preference of public government and public justice! Jf mat- ters are not thus; if it is not really useful; if it can serve no purpose that is really beneficial to the state; if its present partial influence is, on account of its very partiality, oppressive, let n$ 253 away with it; let us complete the good work in which our fathers were engaged, that of cutting it, root and branch, from around the goodly tree of our Constitution, to which, itself a filthy and noxious weed, it clings! 89. But let us go to the abstract principle. Let us suppose that we were at this moment erecting a new Constitution, and enacting a new and complete body of laws. Is it possible, that in this case, we should think of introducing such a principle as that contended for by the friends of the Appeal of Murder? We live in an era that has been fruitful in new Constitutions and codes ; and let us make it our business to inquire, whether any of the Solons of the age have thought of introducing such a principle into their fabrics * ? " It will not be suspected," says a Dublin newspaper, quoted already, " that we entertain any disrespectful feeling to the mo- aarchy, in expressing our hope, that the Appeal of Murder may be relieved from the unchristian incumbrance of Battle, and restored to its pro- per condition, as a sure preventive of wanton homicide, and an wholesome check to the pre- rogative. At present, by the law of England and Ireland, the sovereign has no power to par- * Ask, for example, whether such a principle is to be found in the Code Napoleon, or the constitution of the states com- posing the United States of America? 2o4 don the invasion of a subject's liberty; yet, if a wicked minister were to employ or connive at the knife of an athletic ruffian, the child of the victim must seek the murderer's punishment at the peril of his life." In replying to these observations. I am not called upon to dispute that the powers of government may be abused ; I am not called upon to deny, that there may be wicked ministers ; but I cannot be wrong, when I maintain, that all breaches of the peace are properly cognizable by the public only; that civil society implies the surrender of the private right, in this respect, into the public hands ; that the rights in the public hands must be deposited in those of the government; that the government must be placed somewhere ; and, lastly, that if there may be abuses, on the part of persons exercising the powers of govern- ment, the chance is, at least, equal, that there would be abuses on the part of private in- dividuals; and this the rather, because we may emphatically say, that the first act under an ob- vious, a defined, and a heavy responsibility, and open, at least, to general observation and cen- sure, while the second act under no responsi- bility at all, are protected from censure, and are too obscure? for observation. If 1 am to proceed further with this reply, I must go into a general defence of civil government, and, in a regular treatise, show, why the civil is better than the savage state, and guided by what maxims, all founders of states, and all makers of laws, have pursued their respective tasks ! The constitu- tional controul of the Crown, that is, of the go- vernment of England, is in the collective authority of Parliament, and not in individual subjects. 90. The exercise of the prerogative of pardon is one of the duties imposed upon the sovereign by his coronation oath ; nevertheless, the abuses of that exercise have been a subject of much dif- ficulty in the early periods of our history, and there exists, perhaps, a traditional feeling of jealousy in its regard; a feeling which does not properly belong to the times in which we live; that is, the times posterior to the Revolution, and under the existing parliamentary controul of the Ministers of the Crown*. " Appeals," says Mr. Barriugton, " are so much disused at present, that we may be apt to conceive no regulation with regard to them can be of any great consti- tutional importance; there were reasons, however, to prosecute offences in this manner, rather than by indictment, which do not hold at present. One of the methods, by which not only the kings of England, but of other parts of Europe, raised For the ancient history of royal pardons in England, and tor the statutory restraints on this branch of the prerogative, -.ee Blaekstone's Commentaries, and Reeves's History of tin- Law of England. 256 money, at this time, was, by pardoning crimes for considerable sums of money ; which appears by the many old laws restraining this most ex- cellent and humane prerogative, as it is now exercised. The ancient punishment for murder was a weregild, paid as a satisfaction to the nearest relation ; and it was therefore a most cry- ing abuse of power in the king, not only to par- don this most heinous crime, but in consideration also of the mulct, which otherwise should have been given to the relation who prosecuted. It is in this sense, I should apprehend, that Lord Chief Justice Holt hath somewhere called an Appeal, 'a most noble birthright of an English- man,' because it is a right which the Crown can- not deprive him of." — Mr. Barrington's observa- tion, that the reasons, founded on the ancient state of things, do not hold at present, is entirely just. The condition of the Crown has been ma- terially altered by the Revolution; its ministers are responsible for its acts ; and their abuse of its prerogative of pardon is as tangible as any other ministerial offence. I am far from denying that the prerogative of pardon, like every other prerogative of the Crown, may be abused ; but do we not hold, in reference to this prerogative, a pledge as good as that which we hold for any other? and can a reason be as- signed, why we should be more jealous of this prerogative than of the rest? Do our fears of 257 the abuses of government go the length of indu- cing us to renounce the uses of government? Are we willing to resemble, in our political fears, the over-caution of him that should starve him- self to death, lest he should be poisoned by his food ? 91. But the argument of our opponents is purely theoretical, and of no practical weight whatever. It supposes the existence of that which in reality does not exist ; and the necessity of guarding that, which, in reality, is not left us to keep. The extreme casualty of the circum- stances under which Appeals can be brought, and consequently the rarity and uncertainty with which. they can be opposed to the prerogative of pardon in the Crown, (and which has been strik- ingly seen in the course of these pages) turns the question into absolute ridicule, and gives us all the advantages of the argument c\r absurdo. If the Appeal of Murder is of any real value, either to the administration of justice, to the just claims of the individuals, or to the due balance of the Constitution, it can be so only in as far as it is universal; and every subject, in that case, ought to have an Appeal of the death of every other subject, and much more, every relative of every relative, or, at least, every child of the death of the parent, every heir of the death of his an- cestor, (Sec. Such a provision of law, however L T. 258 radically vicious it might be proved, might at least be defended with a show of reason. 92. But the existing law is not simply insuffi- cient for the purpose for which it is professed to be preserved. It has a much graver inconve- nience; it is in the highest degree mischievous. Its casual operation, and difficult application, not only render it unavailing for the regular and noiseless operation of justice, and for the regu- lar and noiseless preservation of the public liberties, (objects which alone deserve the regard of the genuine, the rational, and the honest citizen and patriot) but render it also a tool of pas- sion between subject and subject, and a wea- pon of sedition against the state, in the hands of selfish, ambitious, and designing men, who, from time to time, attempt to acquire a character for exclusixe patriotism with the multitude. "Ap- peals," says Lord Coke, " are less frequent than Indictment, because the first is more chargeable than the last ; for, though we hear not of late of any Appeals but in Murder, yet they lie in Rob- bery, Burglary, Felony, and in all crimes at Com- mon Law punishable by loss of life or member." Thus, we see, (and have before seen) that not only the peculiarity of the cases in which Ap- peals of Murder can be brought, but the personal difficulties, and the expenses, attending them, stand in the way of their use ; and that hence is 259 to be expected, what in practice is known to be true, that they are never brought but in cases of peculiar irritation, or in worse circumstances. In cases unconnected with political effervescence, it is not necessary that we should go so far as to say, with Mr. Stanley, that they are never brought but with the view of obtaining money : it is an evil equally to be avoided, if they are brought, with motives however disinterested, under cir- cumstances of private or public iutemperance or delusion. It would seem, that most of the Ap- peals of Murder, of late years, have been brought by persons in indigent conditions of life, and at the instigation of those, who, from whatever excu- sable motive, have practised on the minds of such persons. Now, this, in itself, is a most impure and suspicious source of public justice. We know, on the one side, the pleasure of being patrons, and iiow often it diverts the indolence of such as are able to bestow, to be the prime movers of a bustle, and to acquire some distinc- tion in a neighbourhood ; appetites which, how- ever they may be turned to the best purposes, and made to contribute to the truest welfare of society, are also to be narrowly watched, because they may be equally employed to the most mischievous ends. We may lake it as a general rule, that there is ;m ordinary and very widely spread description of persons, who had much rather see a house on tire, than in the tedi- ous state of perpetual quiet and endurance, But, 260 further, we must also remember the temptations of the indigent and obscure, when, on account of any such occurrence, they find themselves taken notice of — find others thronging about them — find themselves of a momentary consequence — de- rive, perhaps, a momentary gain, and flatter them- selves with a permanent improvement of their pros- pects. What temptations, I repeat, for stepping a little out of the course which would have been pur- sued in circumstances dissimilar ! But all these inconveniences are aggravated, if the affair has any political colour, by so much the more as the bustle of a kingdom is greater, and more worth the raising, than that of a parish or a county. The Appeal, in the case of the Kennedies, was the result of a factious instigation, and moved by factious subscription; and the Appeal, in that of Allen, was instigated by Mr. Home Tooke. 93. In point of fact, one of the main objects of modern and pseudo-patriots, in the maintenance of the Appeal of Murder, is the hope of occa- sionally entrapping some individual of the King's land or sea service, who, in the exercise of his duty, shall unfortunately be the cause of the death of a subject. On such an event, a just jealousy naturally prevails; popular irritation is easily excited ; and the very occasion, when the coolest administration of justice should obtain, and the whole nation is most called upon to preside, by its government, over the inquiry and sentence in •2(il the case, — is seized upon by individuals, who, falsely assuming- to themselves to represent the country, indulge! their own vanity, their own am- bition, their own passions, or their own motives, of whatever kind and whatever purity ; who render the heir or the widow, if such can be found, the nominal prosecutor indeed, but, in reality, the tool of a faction. — I ask, again and again, whether this is to be tolerated, under any notion of go- vernment that can be named * ? 94. It is now more than forty years, since the question of abolishing the Appeal of Murder was last agitated in Parliament. Within that period, " Fit occasions for the mischievous use of Appeals of Murder and Wounds, appeared to have occurred lately at Brighton and Deal. The popular irritation in those two places is notorious, and just such as may find vents in Appeals. Parliament will surely do well to abolish their use before the ensuing Lent Assizes. Indeed, without reference to those particular cases, we may he sure, that if the Appeal at present before the Court of King's Bench succeeds, we shall immediately hear of more. There is a mania of imitation which constantly afflicts the public mind. Beside, the present agitation of the question, it it docs not lead to a decision of the public opinion against the propriety of Appeals, will inevitably fix it in their behalf. May I inquire, in this place, whether it is true, as reported, that the unfortunate transaction at Brighton originated in the morose and puritanical disposition too generally prevalent, — to rob Un- people of their sports, and turn them, at once, to sedition in politics, and to fanaticism in religion — and consequently mak< rtioin discontented both with church and state? 262 important changes have taken place in the poli- tical state of society. It is less that the strength of thrones has been shaken,* as that th: natural aristocracy of every country has lost ground. It is the upper classes of society, the natural mediators and bulwarks between the government and the multitude, that has sunk. The superior classes, and with them, constitu- tional information, have lost ground. The crowd, half-taught, and half-thinking, has rushed in ; the people, the multitude, have acquired, and are acquiring, an undue weight in the English Constitution. Those, therefore, who love the enjoyment, and understand the bnsis and the springs, of civil liberty, are alarmed for its loss, from tine danger which threatens us, of a necessary submission to power, in order to escape from anarchy. The Constitution is endangered by the inroads of the people*; inroads which are fo- reign to its frame, and which, beyond a certain point, it will not be able to bearf. At such a * And from the desertion of its natural defenders — the Op- position in Parliament. f We are never to forget, that the Constitution, or at least the liberties we enjoy under it, are, as tliey always have been, the creatures of times and circumstances. Every succes- sive generation has the usufruct of the Constitution, and enjoys it as it can, or as it pleases. The great alterations in the slate of society in England has been the constant source of alterations equally great in the system of our laws and govern- ment, and we may depend on it that the same cause will continue 263 time, defects in the fabric of our polity — and the Appeal of Murder is a defect — ought to be nar- rowly scrutinized, and sedulously cured. The true patriot looks for the preservation of liberty from institutions regular and uniform in their operation; and not from accidents, from occa- sions <>f public heat, in which it unavoidably happens, that more is lost than gained. Civil liberty, (it may be proved to demonstration) is a plant that flourishes only in a kindly soil, and under an equal sky. In ungrateful earth it pe- rishes, and amid storms it is swept away. Public quiet promotes its expansion ; amid tumults it is necessarily contracted and abridged*. to produce the same effect. It is true, that we always stand on the same plank ; hut the plank is drifting with the stream, and we shall lose all knowledge of our true situation, unless we perpetualh watch the varied shiftmgs of the objects on shore. There wants nothing, at this moment, to seal our ruin, hut a reform in Parliament. Let annual Parliaments, or universal suffrage, or even more limited, hut yet sweeping reforms, he adopted, and our Constitution is gone. Yet to these points the state of society in England is pressing ; and we have no defence hut in the education and the influence of its better informed members. For the effects of universal suffrage in the United States of America, see the excellent letter of the Earl of Selkirk to Major C'artwright. The effects, however, may be seen nearer home. We have a few seats in Parliament, which are tilled nearU upon this principle of election, and, from the consequences, they ought to serve us as beacons. * We see, daily, the evidence of the foul and imbecile league *hich the Opposition in Parliament condescends to cultivate 264 95. Mr. Fox justly esteemed the power of pardon in the Crown to be the right of the sub- with the lowest dregs of Jacobinism. It is not enough that we witness in the publications which it countenances, an identity of language with those other publications, in which, under the mask, or almost without the mask, of zeal for Constitutional freedom, the overthrow of the Constitution is the direct purpose. We have the perpetual mortification to hear the most brainless, the most heartless, and the most malignant of the phrases and sentiments of the meanest demagogues, echoed in either house of Parliament. At other times, it is the Op- position who take the van. Legitimacy is now the watch-word of revolution, and it first began to flourish in the House of Commons, at the commencement of the late session of Par- liament. There, too, began all the inflammatory movements, which afterwards, by regular descent, proceeded to Palace Yard, Spa Fields, and Nottingham. This degradation of character in the Opposition in Parliament, is to none more afflicting, than to those who may be stigmatized as the advocates of slavery and satellites of power. Opposition loses its influence, and therefore loses its station.^ It is no longer a bulwark against the ministers of the Crown, and, at the same time against the rabble out of doors. Honest men are left between two fires, and are forced to abide by those whom they may dread, for the sake of protection against those from whom the danger is more imminent and more terrible. And what does Opposition gain by the unholy alliance? It loses the support of the decent and well-informed, and it will never be able to satisfy and identify itself with the revolution- ists. The latter, doubtlessly, is not its purpose, and the former it must attempt in vain. It may offer to go to Hounslow, but that is nothing, if it will not go to Windsor. Opposition, so conducted, is destitute of the imposing trrandeur of learning and virtue, which might keep Ministers in 205 ject; for what civil right can be more precious, more indispensable, more consistent with the theory of the social compact, than the right of being protected by the community, whose repre- sentative the Crown is, against the violence of individuals, whether pursued with law or with- out it, and even against the undue severity of the law itself, which (necessarily proceeding as a machine) cannot turn aside through any moral guide or impulse : Criminal Law, then, without mercy lodged wherever is the sovereignty of the state, would plunge .society into the commission o( the most atrocious -crimes. Criminal law, without mercy, would be like civil law without equity. " A trial," said Mr. Stanley, (that is, a awe. It dwindle-;, in reality, into a Parliamentary insignificance, which leaves Ministers without controul, and is therefore, in theory, at least, of the worst consequences to the interests and liberties of the country. Opposition, so conducted, become* impotent in it> true place — in Parliament, and powerful only out of its true place — in the streets and alehouses. It becomes contemptible, where its power would be salutary, where the Constitution has placed it ; and powerful, only where its power is baleful — where it is to be feared — where the Consti- tution has not placed it, and where it threatens, therefore, to overthrow, instead of promising to strengthen and protect, the Constitution. It becomes a meteor to deceive and to destroy, our feet, instead of a light to guide, and a tire to warm the system. Opposition has talked much of a new era. Let us see anew era of Opposition. It is to commence, in the ensuing Session, under a new leader, and let it be governed by new principles. The office of Opposition is eminently honourable : it can be dishonoured only by the manner of its performance. M M 266 judicial process) " is not complete without the power of pardon ;" for it is not enough to know that a prisoner is guilty, but we must know, also, whether he ought to pay the forfeit of his crime. Summa jus est summa injuria. Mr. Fox has put the case of a criminal tried and convicted, but who appears to be out of his senses. " In this case, he is certainly not to be hanged, but the pardon is the only mode of saving his life*." But the private prosecutor may pardon; true; but will society trust to that? It is monstrous to suppose, that society will lend its laws and its tribunals for the gratification of private feelings ; that it will render itself the pander of private passion, the executioner of private judgments. The Appeal of Murder, in its ancient state, had none of these enormities, or at least, not without important modifications. Again, what if the prosecutor, instead of the prosecuted, "appear to be out of his senses." Is this so uncommon a case? But, seriously, might not a prosecutor in- sist on execution to-day, and his friends sue out a statute of lunacy against him to-morrow, and adduce the execution among their proofs of its necessity ? It is said, that in society men give up a share of their natural rights ; but it is not so often said, that in society we acquire social or civil rights. God forbid that civilization should be a state of all loss and no gain ! it has its acquisitions, as well as its * See the Appendix, 207 privations. Men may differ as to forms of go- vernment ; they may differ as to whether they would live under a kingly government or not; but, in no part of the civilized world, will they differ, as to whether they would or would not live under a government which enjoys the power of pardon. How else is it a government, as to merciful objects? Where a government is with- out the power of pardon, men may be said to live under laze, but not under government. Govern- ment is a moral, an intellectual force ; it is not a mere structure of wood and iron ; it is not to be moved by steam. Under a monarchy, vul- gar men are perpetually separating the will of the sovereign from the will of the state; the will of the sovereign, lawfully exercised, and lawfully executed, is the will of the state ; but let us sup- pose a government without a king, and the delu- sion which we are combating vanishes at once. If I cannot be understood in England, let me throw myself into New York or Pennsylvania, and let me ask, there, whether men would endure to live under a criminal system, in which the state, the people, had not the power of pardon ? Hot- spur's ladies' gentlewomen, who are so much shocked at the " vile" Battle, are indignant that the Judges, in their starlet robes, should witness one in Tothill-fields ; but what do more mascu- line observers think of the dignity of the state, when the Judges, even in black gowns, or net 268 gowns at all, are sent to tap at the doors of pri- vate prosecutors — to ride to Islington* — to know whether a convict shall or shall not be hanged ? The power of pardon, vested in the sovereign, is much more than a glorious and endearing prero- gative of the Crown — it is an indispensable right of the subject; and not only a judicial trial, but a constitution of government is " not complete without it;" and to take away that Appeal of Murder, therefore, is not to dilapidate the Con- stitution of England, nor to introduce any Maca- roni f nor modern architecture, but to finish, and upon the ancient plan, that vast and solid fabric which our first ancestors began, at which succes- sive generations have toiled, but for the comple- tion of which, either the materials or the labour have hitherto been insufficient. 96. It remains, then, only to devise the means of this completion. While the Courts of Law, amid their present difficulties, find their best, as it is their only course, in administering the law of Appeal of Murder as nearly in conformity with the Common Law, as the Statute Law per- mits, to Parliament it belongs to deliver them and the country from that which is " an im- proper part of that code for which we are so much famed J." * Sec page 70. t See the Appendix. [ See Appendix. 269 97. But Parliament, in resolving to take some step on the occasion, has the choice of two mea- sures ; and to the formation of that choice its wisdom will be directed. It will observe, that the existing law of Appeals of Murder is vicious, 1°. In its principle. 2°. In the abuse of its principle; and 3°. In the abuses of its practice. 98. The principle itself is vicious, because it authorizes a public prosecution for crimes, and, in the event of conviction, takes the power of pardon out of the hands of the sovereign, where it is the right of the subject that it should be. 99. The abuse of the principle consists in the application of Appeals of Murder to the purpose of procuring second criminal trials, the possibility of which is derived only from the unfortunate circumstances under which the statute of Henry VII was made, and from the letter of that statute only ; and is no part of our ancient " Gothic constitution." 100. The abuses of practice are innumerable, and carry away the Appeal of Murder still fur- ther from our 4< Gothic constitution."' These 270 consist, among* others, of the partial operation of the right of Appeal, the almost total exclusion of women from that right, and above all in the modern privation of the Appellee of a Grand Jury, or previous inquiry, or information pre- cedente, had before a Judge, and of the discretion to be exercised by the sovereign, whether to allow of an Appeal, (that is, to grant a Duel,) or not. 101. If Parliament shall hesitate at abolishing all Appeals, (lawful Duels) and especially the Appeals of Murder, it will not direct its au- thority against the principle, but only against the abuse of the principle ; that is, against the practice of second criminal trials; and, in this view, all that is wanted, is, to enable an Appellee to put in a plea of auterfoits acquit at the suit of the. Crown (producing the record) in bar of the Ap- peal. In the event of such an enactment, the Appeal would still lie, and the private right would be saved, wherever no trial at the suit of the Crown had gone before. This would leave in its present state the private right, against any pardon granted by the Crown before trial. 102. But Parliament, in stopping here, would still leave the country exposed to many evils, and the subject to the denial of his rights and just liberties; Appeals might still be brought, before and pending a prosecution by indictment, against 271 persons pardoned by the Crown before trial, and against those who might otherwise be pardoned after trial; and beside, the law of Appeal would still be incumbered with all the abuses of prac- tice, and with the question of Trial by Battle. 103. Parliament will never look so kindly on Appeals, as to separate them from Trial by Bat- tle, which is their essential feature, which is se- cured to the subject by Magna Carta, and the preservation of which, as a check upon their practice, can alone comport itself with the policy of our ancestors, which has always intended their disuse. 104. Parliament, on the other hand, will see no serious difficulty in a total abolition of Appeals of Murder and all other Felonies, which were never introduced into our code upon abstract principles of right, which are mere remains of the savage state, which are protected by no char- ter, nor other legal impediment to abolition; and the merits of which rest solely upon princi- ples inconsistent with civilized legislation, with the rights of man in societv, with the monarchi- cat constitution of this kingdom, and with the theory of all government, in whatever form. lOo. To the British Colonies in all parts of th< world, and to the United States of America, the 272 importance of the present inquiry presents itself with equal importance as in this kingdom. There is not one of those countries, in which Appeals of Murder and other Felonies are not lawful modes of proceeding, and where the Courts, and the lawyers, and the public, may not one day be " surprized" by Wager of Battle, as well as ourselves. 106. In conclusion, I submit, that I have now satisfactorily shown, 1°. To our Courts of Law, that contrary to their past interpretations, the Appeal of Murder is a proceeding to which, instead of giving aid and encouragement, they should oppose every prac- ticable and lawful impediment. 2°. To Parliament, that contrary to the tone of former feelings, the Appeal of Murder is not a proceeding, which, with reference to the na- tional liberties, the continuance ought to be jealously guarded ; that, in point of theory, it is not a " great pillar of the Constitution," and that in point of fact, it has not, in its present shape, any pretension to be ranked among those " Gothic" institutions to which we owe our political bless- ings, and which, therefore, we are to touch with caution. That in reality, it was at the first, but a wild crab-tree in the garden of the state; '273 that our ancient gardeners despised it, and lopped away its branches ; that one good man devised the making a graft upon the stock, which though it put an end to the production of the natural sour fruit, yet introduced bitter and even poison- ous fruit in its place ; that in short, the whole is a decayed, unsightly, and dangerous plant; and that it has experienced the fortunes, so it should share the final disposal, of the old and baleful yew-tree, into which the rude but honest Baucis and Philemon were changed : Here Baucis, there Philemon, grew ; Till once a parson of our town, To mend his barn, cut Baucis down; At which 'tis hard to be believ'd How much the other tree was griev'd, Grew scrubby, died a-top, was stunted : So the next parson stubb'd and burnt it.* 3°. To the Country at large, I have shown, that, contrary to the popular estimate, the Appeal of Murder is a stain upon the administration o* justice; that its existence is condemned by our Common Law; that it takes from the subject the protection both of Magistrates and of Grand Juries; that it even arrests and imprisons him whom a Petit Jury lias acquitted ; that it violates Trial v,\ Jury; that it holds out a precedent for disturbing all criminal verdicts ; that it is an Swift's Baucis and Philemon, N \ 274 " impious" rejection of the " Judgment of God ;" that (in theory, if not in practice) it constitutes an act as much distinguished by absurdity as impiety ; namely, the sending a man to be " tried by God," a second time : that it is partial in its operation, and therefore unjust and oppressive; that it is an instrument of oppression and per- secution, equally within the reach of Crown and of subject, and therefore equally liable to be made use of by either ; that its existence in our Statute-books is an accident, to be ascribed to unfortunate circumstances, and not to the choice of our ancestors ; and that the principle which it assumes — that of taking the administration of justice out of the hands of the government of the country, and especially that of foreclosing the public mercy, and placing the discretion, the power of death, and the right to bind or to re- lease, to buy or to sell the life of a subject, in the private grasp, is a monster in political science, a contempt for morals and of the human under- standing, and a general reproach upon the nation ; and excusable from the recollection of that state of society for which we have gradually emerged, and of which it is not extraordinary that we should retain some vestiges. IV ay, even this ex- cuse does not reach all the darkness of the case; but we must take into account also, the difficulty of succeeding perfectly in the production of new forms, when we work with old and mis-shapen materials. 275 107. To Government it must be unnecessary to say a single word. The Ministers of the Crown, in all times, can have taken but a single view of the Appeal of Murder. They can have regarded it only as a portion of the wild common of nature, never yet reclaimed, nor applied to the uses of civilized man ; as a remnant of that state of so- ciety in which public government either was none, or was very limited in powers. They must have regarded it as what has hitherto resisted the pro- gress of social institutions, and the establishment of civil authority. They must have regarded it as dangerous to the rights of the liberties and life of the subject, which they were bound to protect, and dangerous to the interests of the state, which they were still more called upon to maintain. They must have considered it, not only as a departure from the equible course of justice, but as a weapon to be peculiarly seized upon, in moments either of individual or popular irritation, and perhaps delusion, for the exercise of cruelty against particular persons, either high or low, either in public or private stations, or for the in- dulgence of faction, or for the nourishment of sedition, and for the production of murmurs, tumult and disorder. Ministers of our own day must lament the prolonged existence of this relic of our ancient barbarism, and limited influence of civil government; and must view with peculiar content a reluctance to its perpetua- 276 lion, at a lime, when the progress of popular power and principles of insubordination, threaten us with barbarism again, and ought to create a jealous watchfulness of all the powers which are still left in the hands of individuals. I say, in- dividuals, and not the people ; because the interests of the people and of the state are the same, or rather they are but one; but the interests, the passions, of individuals may often be in hostility to the people — the people, whose representative, support and strength is the Crown. Robertson, after tracing the growth of the royal prerogatives in Europe, and the gradual suppression of almost all interference with the public administration of justice, concludes his survey by observing, "Thus Kings became once more the heads of the com- munity, and the dispensers of justice to their subjects." 108. But if I am wrong in supposing these reasonings to be conclusive; and if, at last, we are still of opinion, that the Appeal of Murder ought to continue to make part of our law, and to continue in its present state, we must give our assent to the following propositions: 1°. That though it is right, that in general, no man should be put into jeopardy of his life more than once upon one criminal charge, yet it is also right that some men should be made exceptions to this rule. t>77 2°. That those exceptions ought not to depend upon any regular principle, having reference to the heinousness of particular acts of guilt, nor to any other rational ground of distinction, but ought to be the mere result of accidental circumstances. 3°. That it is a sensible and creditable rule of law, that if a murdered person happens to leave a wife, or an heir male of a particular description, then his murderer shall he tried twice ; but if such person does not leave a wife, nor any heir but an heir female, then his murderer shall be tried no more than once. 4°, That the Trial by Jury is a defective in- stitution, and that a verdict of acquittal of a Petit Jury ought not to deliver a suspected person from pursuit. 5°. That the institution of Grand Juries is an useless and cumbersome piece of antiquity ; and that the interference of those bodies, between the prosecutor and the prosecuted, is an act of idle impertinence, and wholly unimportant to the li- berty of the subject. 0°. That a preliminary examination by a Ma- gistrate, of a person charged with any oflence, is, in like manner, idle, impertinent, and unim- portant to the liberty of the subject; and that 278 the most convenient method of putting a man upon his deliverance, is, to cause him to be ap- prehended, imprisoned, and forced to incur jeopardy of his life, upon the mere affidavit of his accuser. 7°. That though there are strong and reason- able grounds of alarm, at an information ex officio, and consequent exclusion of the voice of a Grand Jury, by an Attorney-General of the Crown, a great public officer, whose transactions are under the eye of Parliament and the nation, and who may be called to account for any misuse of his authority ; yet there is no ground for alarm, no probability of oppression nor error, when an in- formation of right, equally excluding the inter- vention of a Grand Jury, is sworn by a private subject, whose situation is obscure, whose con- duct is not watched by the nation, whose motives may be evil, or may be erroneous; and whose error, at least, can be visited with no public chastisement. 8°. That though it is a popular English notion, that every man ought to be tried by his equals, yet it is right that the Peers of the Realm should be deprived of that privilege. 9°. That it is right, that when a culprit is tried by two successive Juries, and is acquitted by a 279 rirst Jury, and found guilty by a second, the verdict of guilty should have the preference of the verdict of acquittal, and that the culprit should be put to death accordingly. 10°. That it is right, that private persons should have the power to send their fellow-sub- jects to execution, to release them at their plea- sure, and to receive money as the price of their favour. 11°. That the prerogative of mercy is an odious attribute of the British Crown, and even an infringement on the liberties of the subject; and that criminal law ought to stand upon such a foundation, that when sentence of death has been pronounced, no authority in the state shall have the power to interpose, under any circumstances whatever, for his deliverance. \'1°. That a law, through the operation of which, one guilty person shall be accidentally placed out of the reach of the royal pardon, while another person, equally guilty, shall ex- perience no equal severity, is " a great pillar of the Constitution." l.'Y\ That neither the inquests of Coroners' Juries, nor the presentments of Grand Juries. 280 nor the controul of Parliament, are constitu- tional substitutes for the Appeal of Murder. 109. And further, if the Appeal of Murder must be continued, and, at the same time, we are willing to reconcile its provisions with common sense — 1°. Let us declare, that in all cases of suspicion of murder, the suspected person shall be liable to be tried twice, first at the suit of the King, and secondly at the suit of any relative, or next friend. 2°. Let the royal mercy reach judgments on Appeal, as well as judgments on indictment. 3°. On these terms, let us abolish the Trial by Battle; but, at the same time, let us abolish the use of the name of " God," in the Trial by Jury; since it must be " impious" to bring into doubt the " Judgment of God," and to demand a second hearing of the Almighty. 110. But if all or either of these points are inadmissible, then we must abolish Appeals, and especially Appeals of Murder; and, in that manner, deliver ourselves from Trial by Battle, APPENDIX. No. I. IN THE KING'S BENCH. Rex versus John Taylor, AND Elizabeth Smith, Widow, versus eundem. TUTS matter first came before the Court on the first day of Hilary Term, 1771. The Jurors had delivered a special verdict, and prayed the advice of the Court, whether Taylor was guilty of murder, or man-slaughter only. The case was argued on the 8lh of February, before Lord Mansfield, who decided, that it amounted to no more than man-slaughter : whereupon the prisoner, being asked by Mr. Barlow, the Secondary of the Crown Office, " V\ hat he had to say for himself, why the Court should not proceed to give judgment against him, according to law," he fell on his knees, and prayed the benefit of his clergy, which was allowed to him. Mr. Justice Aston (as second Judge of the Court) pro- nounced the sentence, " That, having been convicted of man-slaughter, he should be burnt in the hand;" which sen- sence was immediately executed behind the Bar, but in face o o 282 of the Court, by one of the Marshal's people, who was pre- pared for that purpose, he was detained in custody to answer the Appeal. Smith, Widow, versus Taylor. On Tuesday, the 12th of February, 1771, he was brought up and stood in Court, on that side of it where criminal de- fendants usually stand ; his being brought to the Bar being dispensed with by mutual consent. He pleaded, in bar of action, a conviction of man-slaughter, and judgement thereupon " to be burnt in the hand," and that he had been thereupon actually burnt in the hand ac- cordingly, and then he pleaded over, to the felony and murder, " Not Guilty." It was agreed, that this should be the substance of his plea; and that it should be afterwards drawn up and deli- vered in form, within a fortnight ; but to be entered as of this day. The Court adjourned the Appeal till next Term. The Plea, which was afterwards drawn up and delivered in form, was as follows : The Defendant set out the whole proceedings in the in- dictment against him, and the special verdict, and the deter- mination of the Court upon it, " that he was not guilty of murder, but only of feloniously killing and slaying the said .lames Smith;" and being immediately asked by the Court there " if he had any thing to say why the Court should not proceed to give judgement, and award execution against him thereupon," he then and there prayed the benefit of the 283 Statute, and it was allowed him ; and thereupon the Cour adjudged " that he, for the felony, and murder aforesaid, should be burnt in the left hand :" and he was then and there burnt in the left hand accordingly ; as by the record, &.c. \\ here fore he prays judgement, if the said Elizabeth Smith ought to have or maintain her said Appeal against him. He then avers his identity, and also that it was the same Janus Smith, and the same mortal wound. Then he prays allowance of the premises ; and pleads " Not Guilty" as to the felony and murder. The Appellant replies, that she ought not to be barred of her Appeal by any thing alleged in this plea, because, (pro- testing and not acknowledging any such record as the said John Taylor liath above pleaded in bar of the Appeal afore- said,) for plea, she says, " That lour before the giving of the said supposed judgement in the said plea mentioned, she the said Elizabeth sued out her original II rit of Appeal against the said John Taylor." And this she is ready to verify. Wherefoie she prays judgement and execution against the said John Taylor for the premises aforesaid. Taylor de- murs generally to this replication; and the Appellant joins in demurrer. On Tuesday, 18th June, 1771, this demurrer was argued, by Serjeant Leigh, for the Defendant; ami Mr. Davenport for the Appellant, (Serjeant Glynn, who was to have argued for her, not being well enough to come down to Westmin- ster Hall.) Serjeant Leigh said, it was now settled, that this is a bar; and, as it is in favor em vita, the Court will not overturn it. He cited the following cases: Thomas Wigge's case, 4 Co. 15 47, which shews that it is a good bar; even though the 284 Appeal were antecedent to the conviction. And this case of Wroth v. Wigges is cited and acknowledged in the case of Harvey v. Reynell. Sir Wm. Jones. 145. " A convic- tion upon indictments, pending the Appeal before the plea pleaded, may be pleaded in Bar." And not only " Autrefoits convict of man-slaughter, and clergy thereupon allowed," is a good Bar in an Appeal of Murder ; but even where a person is indicted before the Coroner, of man-slaughter ; and arraigned upon that indict- ment before Commissioners of Oyer and Terminer : and confesses the indictment, and prays his clergy ; and therefore a curia advisare vult is entered ; the whole Court held, " that the matter of a Bar had been a good Bar of the Ap- peal by the Common Law, as well as if the clergy had been allowed : for that the Defendant upon his confession of the indictment, had prayed his clergy, which the Court ought to have granted, and the deferring of the Court to be advised, ought not to prejudice the party Defendant, albeit the Appeal w r as commenced before the allowance of it." This was de- termined in the case of Thomas Burgh, Esq. brother and heir of Henry Burgh, Esq. (sons of William, Lord Burgh) upon an Appeal of Murder brought against Thomas Hol- croft, Esq. of the death of the said Henry Burgh, eldest brother of Thomas Burgh the Appellant. See 3 Just. 131, c. 57. " of Appeals." See also, 4 Rep. 45. S. C. cited ; 2 Leon. 83. 160. S. C. and 1 Anderson (i8. S. C. and Coke's Entries, 53 to 56. pi. 4. S. C. where the special verdict is preserved, together with the whole record, a very curious one, and well worth reading. It is of 20 or 21 Eliz. 1578 or 1579- A guardian was assigned to the infant Appellant by the Court : An Indictment and Trial within the Verge was pleaded in Bar of the Appeal, The person killed is there called Henry Borowe, al' Burgh. His bro- 285 ther Thomas, The Appellant, though under age when he first brought the Appeal, came to full age whilst it was de- pending. His father was then living, upon whose death, in September, 1584, he became Lord Burgh, and was after- wards made a Knight of the Garter, and died Lord Deputy of Ireland, in October, 1.597. In the case of Armstrong v. Lisle, Kelyng 89 to 108, it was settled, " that the Defendant being convicted of man- slaughter, and allowed the benefit of clergy, and reading as a clerk, did bar the Appellant of his Appeal of Murder." This was resolved by the whole Court in that case: which condemns the doctrine advanced in James the Second's time, " That the Court might delay the calling the convict to judgement, to hinder him from praying Ids clergy; especially if any Appeal were depending before it was allowed; in order to make the defendant liable to the Appeal." One of the cases that had been so resolved was the case of Gorin°- and Deering. See Kelyng, 1()G. In the case of Armstrong v. Lisle, the defendant demanded the benefit of his clergy, before the Appeal was arraigned; and when the Bill of Appeal was read, Lisle appeared to it, and prayed to be bailed; but refused to plead. lie had a right to the judg- ment of man-slaughter, as soon as he was convicted of it. lie finished Ins citations, with Hawkins, P. C. lib. 2, c. 36, § 1:3, 17, pa. 37^, 379- And concluded with saying, that a man shall not be twice punished for the same offence. Mr. Davenport, for the Appellant, endeavoured to show, that the present ease was distinguishable from the cases cited by the Sergeant. He cited some Statutes, and a case in i Anderson 114. case 1,38. But he chiefly relied upon the case of Goring v. Deering, reported in 3 Mod. 156. which 28(j was an Appeal for the murder of Henry Goring, Esq., brought by his widow. The Defendant pleaded, that he was indicted for the same murder at the Sessions House in the Old Bailey in Middlesex ; that he was found guilty of man-slaughter, and not of murder, prout patet per recordum; that he was c/ericas, et paratus fuit legere ut clericus, if the Court would have admitted him; and that he is the same person, &c. To this plea the Appellant demurred. The fact was, that the Appeal was brought after conviction, and before sentence. Eleven judges (all except Street) as- sembled upon this occasion; and the Chief Justice deli- vered their opinion, that " this was no good plea ; and that the Court ought not to ask the prisoner what he had to say, and so let him into the benefit of his clergy." He observed, that in the case now before the Court, the Defendant was not entitled to the benefit of clergy, at the time when he was arraigned upon the Appeal: whereas, in the case last cited, the Defendant had been convicted of man-slaughter before the Appeal was brought. Sergeant Leigh, in his reply, said, it would be a most unreasonable thing, and even shocking to think of, that a man's life should be risked by the Court's taking time to advise. Lord Mansfield and the whole Court were of opinion, that this point had been considered as settled, since the case of Armstrong v. Lisle. And Mr. Justice Aston observed, that even the case of Goring v. Oeering does not coi/trovert, but that if the Defendant had had his clergy, that would have been a good bar to the Appeal. He approved of Sergeant Hawkins's reasoning in the 14th section of the 36th chapter of his second book ; and he thought that the 287 Court, who were said to be of counsel for the Defendant, ought to ask the Prisoner if he had any thing to say, &c. Per Cur. unanimously. Judgment for the Defendant, and Rule to discharge him. Burrows, V. p. 2798—2300. No. II. IN THE KING'S BENCH. Michaelmas Term, 2 and 3 Philip and Mary. Richard "Reade against Rochforth and others. Richard Reade, brother and heir of Gerard Reade, brought an Appeal of Death against six, s . A, B, C, D, and E, as principals, and F, as accessary, and three of the principals and the accessary appeared; and the Plaintiff counted against them with a simulcum, the other two principals being absent, but upon no indictment, and against the accessary for pro- curement and abetment. Two of them and the accessary severally pleaded not guilty ; whereupon the Plaintiff was at issue with them ; and the third principal pleaded not guilty, and ready to defend it with his body, and waged his Battel thereof against him. And upon this plea the Plaintiff demurred inlaw: and several venire f aclases were awarded to try the pleas of the others, sed cessit processus inde, against the accessary, until all the principals are legally, by some means, convicted of the principal fact. And in the mean time, they were severally delivered to bail. And after- wards the demurrer in law Mas adjudged against the Plaintiff, wherefore he was barred of his Appeal against him who waged Battel, and that he should go without day. And one of the two principals who did not appear was returned dead, and the other outlawed. And afterwards, the two principals who pleaded to issue with the Plaintiff appeared 280 at tusiprius in Northampton ; and the Jury, being charged, returned to give their verdict; and the Plaintiff was non- suited there : and upon this, at both their requests, according to the Statute, (West. 0., c. 1*2.) thejury was charged de bene esse, to inquire of the damages sustained as well by reason of the .Appeal as of the infamy and imprisonment, See. And they assessed damages for them severally ; and they were also charged de bene esse, whether the Plaintiff was suf- ficient for the damages, and if not, who were the abettors; who found that he was not sufficient, and also who were the abettors by name, s. that they procured, instigated, and abetted the said Plaintiff to take and prosecute the said Appeal in the form aforesaid, and they did not say (out^pf malice) Note this. And another Jury, at the same time, was charged at nisi prius, against the accessary ; but the record is not, that thev were elected, tried, and sworn, but charged by the Court, and when they returned to give their verdict, the Plaintiff was again nonsuited : and the Jury were charged at the request of the accessary de bene esse to inquire of the abettors, as above, and it was done. And afterwards, at the day in banc, judgment was given, that the Plaintiff take nothing by his writ of Appeal; but for his false claim thereof be taken, and Ins pledges in mercy, and that the said three as to the suit of the said Plaintiff should go without day; but as to the suit of the King, &c. they were severally arraigned, ami pleaded again severally not guilty. And because formerly (as appeared by the record) one of the principals was outlawed, anil another dead, the accessary v as brought to his trial at the suit of the King, and one ot the principals also ; but the other made default, whereof a capias was awarded against him and his mainternors, and by >everal Juries taken between the King and them. They i- p 290 were Acquitted : and it was again prayed, that the Jury might inquire of the damages and of the abettors, who were found as above. And quare, whether the accessary shall have process against the abettors before the acquittal of the other principal who made default, because he was not as yet law- fully acquitted ? And the Court were of opinion, that he was not lawfully acquitted as yet And it was also well debated, whether the judges of nisi prius have power to inquire of the damages, where the Defendant in Appeal is acquitted i and also, whether the Plaintiff be sufficient to pay damages ? and also of the abettors ; since the Statute (West. 2 c. 12) is, that the Justices before whom the Appeal was commenced and terminated shall do it, cfc. And at length precedents were shown in B. R. s. in Hil. Term. 10. H. 7- Rot. 38. and Mich. 19- H. 7* Rot. 37- that the Justices at nisi prius had done it, and certified the postea in banc. And see, 10. Ed. 4. fol. 14. b- under a nota, That they have no power at msi prius to give judgment of damages by Statute, 13. H. 6. c. I. And see the opinion of Fairfax, 22. E. 4. foL 18. And afterwards, in Hilary Term following, a scire facias was awarded against the abettors for the damages, into the County of Northumberland. And note, by the opinion of Portnian, Chief Justice, the said principal, who tendered trial by Battel, and was discharged by demurrer in law, shall be arraigned at the suit of the King, because he is not yet acquitted : and for this see two precedents, s. M. 14- H. 7, Rot. 70- and Trinity in the same year, Rot. 74. The De- fendants in Appeal pleaded not guilty perpatricum, and the Plaintiff demurred thereto, and adjudged a good plea, where- upon the Defendant was acquitted, and let to go thereof without day as to the Plaintiff; and as to the suit of the King lie was again arraigned, and pleaded the same plea; and 291 this was confessed by James Hubberd, Attorney General, by special warrant of the King, which was signed by his sign manual, and entered in the pleadings verbatim, and thereupou the Defendant went without day, &c. And upon this opinion of Portman, the said principal who waged Battel, was arraigned anew at the suit of the King, and pleaded not guilty, and his plea was confessed to be true by the Attorney General, who had the warrant from the King and Queen to all this, which was entered in h 1 1 r . ' v Before Judge Barkley. Richard Lilburn, Tenant, } Durham Ss. August 6, 1638. The Demandant, the first day of the Session or Court of Pleas, the 6th day of August, did appear about ten of the clock in the forenoon, by Richard Matthew his Attorney, and brought in his champion, George Cheney, in array, who cast his gantlet into the Court, with five small pence in it. The Tenant likewise appeared by William Sedgwick his Attorney, and brought in his champion, William Peverell, in array, who cast his gantlet into Court, with five small pence in it. After some examination of the proceedings in the cause, the parties and their champions were adjourned till three of the clock in the afternoon of the same day. At that hour the Demandant was called, and appeared by his Attorney, with his champion. So did the Tenant and champion. 293 Then, after discourse had of it by the Judge, and sonic- examination of the champions, the Judge did adjourn them, over till eight of the clock on Tuesday the 7th instant. At which time the parties and their champions appeared as before, and were adjourned till three of the clock, after dinner. At which hour the parties and their champions ap- peared, and were adjourned over till W edncsday at eight of the morning. At which day and hour the parties and their champions appeared as before, and put in their pledges (as at the Court holden the 7th of July) to appear at the next Court of Pleas to be holden the loth- of September next. Memorandum: That the champions were committed to the custod) of two Bailiffs, by direction of the Judge, and continued in their hands until eight of the clock on Wednes- day the 8th of August, when they put in their pledges to appear at the next Court. The loth of August, 1638, I received this copy from Mr. John Stephen. John Morland. Concerning Claxton and Lilburn, their Irial bi/ Bade/. His Majesty this day sitting in Council, was made ac- quainted, That there had been several days appointed for determining by Battel the question of right, which had long depended between Claxton, Demandant, and Ldburn, Tenant, for certain lands in the County Palatine of Durham. And that by the late appointment, tin same was to be tried 294 by the said parties champions the 22d December next It was by His Majesty ordered, That the Judges of that circuit, upon conference with their brethren, should be thereby prayed and required to take the same case into due and serious consideration ; and if they could find any just way by law how the said combat might be put off, and the cause put into another way of trial ; for his Majesty, out of his pious care of his subjects, would have it so, rather than to adrqit of a Battel. But otherwise, since Lilburn had a judgement upon a demurrer against Claxton, and also costs from the board for his vexation, and since that Claxton had brought a new action, upon which Lilburn had waged Battel, his Majesty would not deny the Trial of Laws, if it could not be legally prevented. Afterwards both parties brought their champions into the Court of Durham, having sand-bags and batoons y and so tendred themselves in that fighting posture : but the Court, upon reading the record, found an error in it, committed by mistake of the Clerk (some thought wilfully done) whereupon the Court would not let them join Battel at that time. Thus did the Court several times order to avoid Battel by deferring the matter, though champions on both sides were ever present in Court at all meetings to join Battel. This proved an omen to what the next year produced by a greater appearance of a Battel, when the King's army was at the camp at Berwick, and the Scots on the other side of Tweed ; yet both armies parted also without Battel. This Richard Lilburn, tenant in this cause, was fathei to John Lilburn, who was censured in the Star Chamber. 295 Here followeth the opinion of the Judges in this cause of Trial by a Battel, upon a Writ of Right. The Tenant waged Battel, which was accepted ; and at the day to be performed, Berkley Justice there, examined the champions of both parties, whether they were not hired for money? And they confessed they were: which confession he caused to be recorded, and gave further day to be advised. And by the King's direction all the Justices were required to deliver their opinions, whether this was cause to de-arraign the Battel by these champions r And by Bramstone, Chief Justice, Davenport, Chief Baron, Denham, Hutton, Jones, Cook, and other Justices, it was subscribed, That this excep- tion coming after the Battel gaged, and champions allowed, and sureties given to perform it, ought not to be received." Ruskaorth's Historical Collections, Part II, 788. Rushworth details at considerable length the proceedings in the Court of Chivalry of the case of Rea and Ramsey, the dimensions of the weapons appointed for this combat were as follows. A Long Sword, four feet and a half in length, hilt and all ; in breadth two inches. A Short Szaord, a yard and four inches in length, hilt and all ; in breadth two inches. A Pike, fifteen feet in length, head and all. A Dagger, nineteen inches in length, hilts and all ; in breadth an inch. The weapons were not to exceed this proportion, but the parties might abate of this length and breadth if they thought fit. They were also allowed defensive weapons at their own n. liaihuorth, Part II, 12 f J. No. IV. HOUSE OF COMMONS, APRIL 29, 1774. THE House went into a Committee on the Bill for the Adminstration of Justice in Massachusetts Bay. Mr. MORETON desired to know, if the Appeal for Murder did actually exist now in the Colonies ? Governor JOHNSTONE desired to know, if it was to extend to the trial of those sent to England ? Mr. WALLACE answered to them both, by saying, he meant it should extend, in both cases, as far as the Bill purported. This brought on a debate concerning the Appeal for Murder being to be taken away in general. Mr. DUNNING. " Sir, I rise to support that great pillar of the Constitution, the Appeal for Murder; and I am not satisfied that a precedent should be instituted, in order to operate as an example for the taking it away in Great Britain as well as the Colonies. This clause con- siders it now as an existing law in America ; I cannot say that I look upon it in that light ; but this is not the first time this question has been agitated in this House, and has been called and treated as a remnant of barbarism and gothicism. The whole of our Constitution, for aught I know, is .297 Gothic. Is it, then, the present idea, to destroy every part of that Gothic Constitution, and adopt a Macaroni one in its stead 2 It" so, it is a system of Ministerial despotism that is adopted here : when a political purpose is in view, things maybe adopted that may tend to operate as a precedent, that may become at last prejudicial to the public welfare. I wish, Sir, that, in every step of this matter, Gentlemen would be a little more cautious, as I much fear the system would soon be adopted in England : it is a proposition pro- duced on a sudden ; and, as, in its extent, it may turn out dangerous, I shall dissent from it. Mr. Solicitor-General WEDDERBUItN. " I con- fess, Sir, that this part of our Constitution has never ap- peared to me as essential : it is very much of a footing with a Trial by Ordeal. Till laws and society took place, there was no other method of deciding between right and wrong. There is nozc no Into in being to prevent Trial by Battle ; and not in very ancient times was it, that the Court of Common Pleas attended in Tothill-tields, to judge of the trials. None but the wife of the deceased, as a female, can appeal, and this may be compromised by a sum of money ; it may be reduced into a civil suit; but by being adopted in the manner proposed in this clause, it can operate to no bad purpose ; nor do I conceive that the liberty of this country will be at all in danger, as it is only a temporary expedient." Mr. EDMUND BURKE. " I do not contravert, in an adverse line, what is advanced by the Learned Gentleman. There is nothing more true, than that man has given up his share of the natural right of defence into that of the state, in order to be protected by it. But this is part of e q 298 the whole law, which you ought not to separate, or else you will soon lay the axe to the root of it in England. If there is an Appeal for Rape and Robbery, you ought to have one for Murder. I allow, that Combat was part of this Appeal ; but it was superstition and barbarism to the last degree. I cannot, in any degree, consent that the Common Law should, in any case, be taken away from one part of His Majesty's subjects, and not from the other. But, as this is a question of great magnitude, whenever it comes on, with respect to Great Britain, 1 hope, then, humbly to offer my opinion on it." Mr. W. BU RKE. " No man has the least doubt but the Learned Gentleman (Mr. Wallace) is fully acquainted with every part of the law, ancient as well as modern; but I think, Sir, he should have brought you in a Bill, to have repealed the law in England first ; but when this great question comes on, I shall readily give my opinion on it." Mr. STANLEY entered deeply into the policy of our Constitution, and dwelt a long time on the repeal of the law respecting Appeals in general. " I think it is hard," said he, " that a man should be tried twice for the same offence, AND WHEN YOU HAVE AN ADVAN- TAGE, BY KNOWING HIS SECRETS AND DEFENCE. J apprehend that criminal (arcs were made to save the lives of persons, and not to destroy them ; that the power of grace or pardon is certainly constitutional, and is a vera valuable and glorious prerogative in the Crown : AND A TRIAL IS NOT COMPLETE WITHOUT IT. There never was an instance wherein the trial by Ap- peal was i intituled, that it was not for the sake of obtaining a sunt of money; and it is part of the law, that it may be 299 reduced into such compensation, the whole being allowed to be a civil suit : but taking it in its utmost sense, it is nothing but barbarism and crueltu; and I zcish to abolish it, as an improper part oj that code of law for which ~ce an so much famed." Mr. T. TOWXSIIEXD. " This is a question, Sir, which has frequently been before the Mouse, and has us often been rejected. J cannot agree to the repeal in part, unless I hear reasons given for the abolition of the whole ; or at least better arguments than those ! have heard, to in- duce nie to give my opinion, to abolish that part which re- lates to America." Mr. CORNWALL. " The Appeal for Murder, Sir, is incorporated in the law s of England, either as a natural or apolitical right, [s, then, Sir, the redress of a particular in- jury to be remedied only by a sacrifice of the lives of others r Everv bod\ knows that manslaughter :s a bar to Appeal. But, Sir, can it be intended, as a nine political institution, that after a Trad In/ dun/, a single individual, to satisfy his revenue, mai/ ovei turn the solemn judgment and verdict of' a Jury'? it appears to me, upon examination, to be neither a political nor a natural right, and I should be sorry to give mv negative to the clause. ' Mr. MORETOX. " I think the provisions of the Bill right, but I did not apprehend that the question would have been debated in this manner : nor did 1 think that such an extent would have been in view, so that an example in future might have be* n brought of tin-;, to attack one of the greatest pillars in this Constitution, the Appeal for Murder, ff the prisoner is to be sent here, where is the use of taking 300 the Appeal away in America ? I only wanted that you should not give a constitution of Appeal for Murder to the Co- lonies, when, in my own mind, I am convinced they have it not, nor is it a part of their law; and, as I think that they have no such power of Appeal, I cannot vote for this clause." Captain PHTPPS. " I would wish to give to every man in America the same kind of right that we enjoy ourselves. Did they not carry with them all the privileges, laws and liberties of the country? If they have a right to part of those laws, they have a right to the whole. I think the Appeal for Murder ought to be sacred in this country; and whatever doctrines gentlemen may imbibe from Mr. Black- stone, I cannot conceive them to be of that authority which ought to guide and direct us. There is not a more insidious way of gaining proselytes to his opinions, than that dan- gerous pomp of quotations which he has practised; it con- veys some of the most lurking doctrines to lead astray the minds of young men. To talk of the finger of nature pointing out law, is to me an absurdity ; but I would not advise gentlemen to seek for law in the channels of these tomes. The rust of antiquity dims the sight of his readers ; but if a man will open his eyes, he will find, that the ringer . of nature will never point out the principle of law. The great argument which I dwell upon is, that the Appeal for Murder is the law of the land : 1 am also for preserving mercy in the Crown ; J think it the brightest jewel in it : but I think that it is a blight that will destroy all our harvest, if it is without controul. I cannot, Sir, give my consent to this part of the law being annihilated." Mr. SKYNNER. " We are got now upon the most im- 301 porlant question that can come on. I think the clause does not want advocates, and therefore it might be im- proper for me to give my opinion ; but, Sir, it is no unna- tural thing, that the death of a relation should be attempted to be redressed, and that the friends of the deceased should seek for justice. The Appeal for Murder, Sir, is consi- dered as a civil action, and to go on, hand in hand, with the criminal prosecution ; and surely, Sir, there is nothing, then, so exceedingly savage or barbarous in it, if it may be com- pensated by a civil action. But let us consider how this will operate in the Colonies ; let us consider in what man- ner this action can be brought : the Americans cannot make use of it, unless their constitution allows it : a writ must first issue out of the Court of Chancery ; but as they have no such court in that country, it cannot take its rise there. A writ of this kiud can only issue when the person is in the actual custody of the marshal. In the process which you have laid down in the Bill before us, bail is allowed to be taken for the offence ; so that he never can be actually in the custody of the marshal. Therefore, at present, as their constitution stands, I look upon the writ of an execution of Appeal to be impossible there. The Americans will think that we are breaking into their civil rights ; and 1 think it highlv improper to introduce the Appeal for Murder in this instance, as it is not necessary. But, Sir, I cannot sit down without saying a few words in defence of that able prison alluded to, now a great magistrate, who has thought there is something in our Constitution worth preserving. And sorry I am to hear that great and able writer has received any re- proach or admonition in this senate; and I believe the Hon. Gentleman (Captain Phipps) is singular in his opinion upon this head ; and I am glad to tiud there art: no strangers in 302 the gallery, for his own sake, to hear what he said*. But, Sir, I am of a different opinion from. that Hon. Gentleman, and I dare say the House will agree with me, when I think that book one of the best that ever was written upon the laws of this constitution, and will do more honour to himself and this country than any that ever yet appeared ; and I am sorry to hear him reproached, even by an individual, when I am sure the greatest honour will redound to this country from that able performance." Sir RICHARD SUTTON. " Sir, I do not think that the Appeal for Murder ought to be partially taken away; if you take it away from any part of the dominions, you should take it from the whole. I am much against the measure, because I think it vindictive and cruel." Mr. CHARLES JAMES EOX. " I am for taking away the Appeal for murder entirely; but i AM NOT FOR TAKING IT AWAY IN PART. If the dp- peal is allowed, you take away the power of pardoning in the Crown. I look upon the power of pardon as much a right in the subject to claim, as part of the trial. Suppose a criminal should be tried and, convicted, and he should appear to be out of his senses? In this case lie is certainly not to be hanged, the pardon being the oidi/ mode of saving his life. Appeal for Murder is the only instance in our laws, in which satisfaction is allowed to the injured by the blood of another, as it may be compensated by a sum of money. I shall vote against this clause, because J think the American-; have a right to the same laws as we have." * The standing order for the exclusion of strangers was strictly enforced during the progress of the three Bills relating to the distur- bances in the American Colonies. 303 Captain PHIPPS rose to explain himself, with regard to Mr. Blackstone, and said, however lie might have represented his performance, he was glad to t'nid it was so well defended by the warmth of friendship : that he had heard, and was sorry to hear, that book had undergone some regulations with regard to its eligibility, which he hoped was not true. He sat down rather chagrined to find his opinion with regard to that work was singular. Sir GEO KG E SAVILE. " Sir, the appetite of revenge is, like that of hunger, never to be satisfied. There are certain rights which we bring into society, which we give up for the good of the whole : the passion of revenge seems to under that description ; and in this instance only, the blood of another may be compensated by civil action. But I will not contend that to be a civil suit which ends in hanging, which the Appeal of Murder does, when not compensated for. But it is necessary that men should give up certain rights which they enjoy, for the good of society at lame. I would wish a fair and impartial trial to be secured, which I think is already done in the Colonies, without meddling with the Appeal for Minder." Mr. SKVNN VAl. " Sir, I only rise to < xplain, that the Appeal for Murder may be reduced to a civil action; that there also lies an Appeal in Robbery and liape ; and if the woman who had been injured, when the man was under the gallows to be hanged, should marry him, he woidd, by the ancient law, be saved, because all her civil right would be vested m her husband by that act, and therefore compen- sated lor as such: by that act she vests those civil rights, which he had deprived her of, in him, a<= her husband." 304 Mr. WALLACE withdrew the clause for the [abolition of the] Appeal for Murder [in the American Colonies]. Mr. R. FULLER. " Sir, I am the more convinced by what I have heard to-day, that the whole law relative to the Appeal for Murder ought to be Repealed. I will there- fore give notice, on some future day, when I shall make the motion." Cobbett's Parliamentary History, Vol. XVII, p. 1291. No. V. A DESCRIPTION OF THE PLATE. *' The Case of Blovveberme and Le Stare is entered," says Madox, " on a small membrane, remaining in the Queen's Treasury of Records, in the Tower of London. It is written in a little hand, of the reign (as I guess upon view) of King Henry III. But the membrane (which contains several other Appeals besides this) hath suffered by time or weather, so that some parts of it are scarce legible. The figure of the Duell is drawn at the top of the membrane; and is correspondent in size and dimension to the sculpture in this page. Four small holes have been formerly made in the top of the membrane ; probably, to put strings in, to file or hang it up. One of those holes passed) through the face of Walter Blowberme." Pulton describes, as follows the arms of the Combatants. '' They shall light with weapons of small length, beeing bare headed, and haveing their hands and feet bare, with two staves of one length, horned at both elides. And either of them shall have a scutchion foure-cornered, without any yron, for that one shall not hurt the other with the yron." Pulton, p. 194. Probably, the ornaments which are seen on the shields in the plate, are stamps, or other ornaments, not of iron. 306. The offensive weapons here represented, agree very ill, it will be observed, with the batons and sand-bags, often mentioned in accounts of the Trial by Battle, and which (page 86) are adopted by the property-men at our theatres. But the batons and sand-bags belonged to Battle in Writs of Right, which was, in truth, as mentioned by Blackstone, a species of cudgel-playing, and where the end was in no respect the death of either champion, but only a superiority of defence. How little the whole subject was understood, on occasion of the Writ of Right in the palatinate of Durham, has appeared in a preceding article of this Ap- pendix. That the object was entirely mistaken by the King, is plain, or piety would have had no share in his difficulties concerning the trial. A Battle, in an Appeal of Robbery, is described (page 159? above), by Sir John Davies ; but here, we are told r that the " Appellant's head was ever covered, but the De- fendant's rayed;" that is, (rased, rase) his hair cut round, or shaved off, or as is said elsewhere, " cut above the ears." All these expedients had for their object to prevent the pulling of hair ; but the Assises de Jerusalem allows of no distinction between the heads of the Appellor and Appellee, at least in Appeals of Death. The smock-frocks represented in the plate are mentioned in the Assises: — " Les chevaliers qui se combatent pour Murtre ou pour Homecide se doivent combatre a pie, et sans coiffe, et estre roignes a reonde, et estre vestus de cottes vermeilles ou de chemises, ou des doubles de conde com tes, jusqu'a au genouil, et les manehes cotipees jusques dcssu le conde, et avoir chausses vermeilles de drap a estrier sans plus, et un targuc que Ton appclle harasse, qui soit plus grant de lui de demi pie, ou plain paume, en laquelle ait deus pertuis de commuri an 307 grant, en tel endroit que il puisse son aversaire veir par ceaus pertuis, et doit avoir une lance et deus espees, Tune ceinte, et l'autre attachee en son escu, si que il la puisse avoir quant mestier li sera." This, it is to be remembered, was the array of knights, in Appeals of Death ; " car sergens d pie se combatent de toutes quereles d'unes arnieures." The place of the target, harasse, aras, or skreeu, (with two holes, through which the combatant might see his ad- versary,) was supplied, in the case of the Dog, (page lt)0, above) by " an empty cask." The occurrence of the word " rayed" may, at this mo- ment, be an Apology for mentioning, that the words Ron Roy, are, by some, interpreted, to signify " ray" or " striped cloth:" " N'affiert a clerc que est veste robe roiee." Cou- tumes de Beauvoises. Ch. II. " lloie, rove, radiatus." In the plate is seen why the French call the gallows "the forks." (lesfourches.) The particulars of the case of Bloweberme and Le Stare, are given ;it page 174, (note) above. Published Quarterly, by Baldwin, Cradock, and Joy, in Royal Octavo, price 8s. each Number, THE COLONIAL JOURNAL: CONTAINING, 1. Original Communications on Co- lonial Interests, Commerce, Agriculture, History, Biography, Topography,