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gular sight to behold the present learned and venerable judges of the court of King's Bench, clothed in their full costume, sitting all day long in the open air in Tothill Fields, as the umpires of a match at single-stick: Nor will a less surprizing spectacle be furnished by the learned persons who are to appear as the counsel of the combatants, and who, as soon as the ring is formed, will have to accompany their clients within the lists, and to stand, like so many seconds and bottle-holders, beside a pair of bare-legged, bare-armed, and bare-headed cudgellists.
The subject, ludicrous as it seems, is one of considerable serionsness and importance. That a person, tried on an indictment for murder, and acquitted by a jury, should undergo a second trial for the same charge at the instance of the relations of the deceased, is itself an occurrence of a most striking nature. Such is the simple effect of the appeal of murder now pending, even supposing the plea of wager of battel to be disallowed, and the party accused to be tried in the ordinary manner. But when on the singularity of an appeal of murder is grafted the additional singularity of a judicial combat, the case is more than striking-it is really deplorable. The reflexion that, in the nineteenth century, a human life may be sacrificed to a practice which might have been conceived too absurd, impious, and cruel to have outlived the dark ages, cannot be entertained without pain. Nor can it fail of producing an anxious wish that the speedy interference of the legislature may abolish this barbarous absurdity, and purify the criminal law of England from a blot which time and civilization have strangely failed to wear
The question as to the propriety of abolishing appeals of murder (and, if the appeal of murder were abolished, the wager of battle must fall with it) has already occupied, on repeated occasions, the notice of parliament; or, at least, that of the House of Commons. On those occasions, however, it came before the House, blended with matter of a political nature, and failed to receive the calm and comprehensive examination due to it, and that final disposal which it imperiously requires. The strange circumstances of the appeal now pending will, as we cannot but believe, once more draw the attention of the legislature to the subject; and it is fervently to be hoped, that any measures which shall be adopted with respect to it, may be founded in the fullest inquiry and consideration. It is with the desire of contributing our quota of suggestions to the discussion, that we have undertaken the present Article. We are not, indeed, able to present our ideas in the most advantageous form of which, imperfect as they are, they may be susceptible. Much more time would be requisite for that purpose
than we can now command; and, on the other hand, the probability that the question will be agitated, before another opportunity is afforded us of stating our sentiments on it to the public, forbids delay.
The same circumstance will, we trust, be considered as an adequate apology for the superficial view which alone we can supply of the publication that gives this Article its title. The first edition of it, which appeared in November, 1817, we did not happen to see. The second, which seems to have received such additions and improvements as nearly to entitle it to the character of a new work, has emerged from the press while we write ;* and we can review it on no other condition than that of submitting to the reader the impression produced by a rapid perusal. This, under ordinary circumstavces, would hardly be proper; but the author is laudably anxious that his endeavours may produce an influence on public opinion, previously to the consideration of the question he discusses, by the Houses of Parliament; and, in seizing the very first opportunity of introducing his argument' to the notice of the general reader, we trust we may be forgiven for shewing ourselves anxions to do justice rather to his object than to his work.
We might be more reluctant to deliver any opinion respecting the publication of Mr. Kendall, had not our short acquaintance with it impressed us, on the whole, very favourably. It seems an acute, vigorous, and spirited production; replete with matter of curious research; and every where bespeaking a fearless independence of mind. In its leading conclusions, also, we should be disposed to acquiesce; though not without a fair allowance for occasional dissent; nor without some little reservation for doubts, which might, perhaps, be ripened into dissent by a more leisurely perusal. The haste with which the work was originally composed (and thus far, at least, we have a fellow-feeling with the author) is apparent even in its improved state. With no want of the external marks of method, it is considerably immethodical ; and its voluminous notes, not satistied with their proper province of supporting the march of the text by a numerous flying-artillery of antiquarian black-letter, are apt very ungraciously to intrude on the conduct of the main battle. The author disclaims, and in fact was not obliged to study, professional accuracy in treating of legal subjects ; nor are we aware that he has fallen into any inaterial errors in this department; yet there are one or two casualties which may as well be repaired on any favourable occasion that offers. Thus, he asserts (and this even to the injury of his argument, p. 119.) that,
* It came to our hands on the 26th Jan. 1818.
in our modern courts of equity, a single oath to a fact, on the side of the plaintiff, is conclusive; whereas the notorious rule of those courts is, that a plaintiff can never have a decree on the evidence of a single oath, if that oath is contradicted by the oath of the defendant; and, consequently, if the single oath of either party is to be considered as conclusive, it is that of the defendant.
A more serious complaint night be made of the work, on the score of its evincing a sharpness of manner, bordering on resentfulness. The author seems impressed with the notion that a stupid and irrational prejudice in favour of appeals of murder prevails among the members of the community in general; and this prejudice he has set himself to encounter with a warmth and exciteability not unlike its own. Sævos compescuit ignibus ignes. But he should remember that irritation and intemperance are never to be destroyed by their own weapons; they have no real opposite but extreme calmness; and, considering his indubitable superiority in information and argument, he might the less have been expected to feel the contagion of that unsuitable vehemence to which he is opposed.
Before we glance at any of the topics which this subject presents, it may not be improper to recall to the remembrance of the reader some of the leading features of the very singular case from which the whole discussion took its rise. Mary Ashford, a beautiful young woman, the daughter of a peasant at Erdington in Warwick, having been found dead, and to all appearance murdered with circumstances of great atrocity, Abraham Thornton, a bricklayer, then residing in the neighbourhood, and the last person seen in her company, was indicted for the murder, and on this indictment was tried at Warwick in the summer of last year, when, after a trial of twelve hours and a half, the jury returned a verdict of Not Guilty.-William Ashford, the eldest brother and heir of the deceased, has since appealed Thornton of the murder of his sister. To this charge, Thornton has pleaded Not Guilty, and that he is ready to defend the same by his body, and has thrown down his glove in open court as a gage of battle. Then Ashford has counter-pleaded, alleging that there are circumstances which induce the most violent presumption of Thornton's guilt, in which case the law is that the person appealed against is not to be permitted to wage battle, but must be tried by his country. To this counter-plea, again, Thornton has replied, stating all the facts in his favour (which were proved at the trial); then setting out the indictment and acquittal, and concluding with an averment that these matters furnish stronger presumptions of his innocence than the facts stated on the other side afford of his guilt. Thus far the proceeding has now advanced; though it will have travelled a further stage before these observations become
public. The next step will be for Ashford to give some sort of rejoinder; and, probably, it will then rest with the judges to decide whether Thornton is to be allowed the trial by battle which he seeks. If he may not, he must be tried again by a jury. If he may, the appellant Ashford will have either to decline or accept the challenge. If he declines it, he must be non-suited, that is, there is an end to the suit; and the appellant, for having failed to prosecute it, may be fined at the discretion of the judges.* If he accepts it, the battle must take place; in which, if the appellant is defeated, he is subject to a year's imprisonment and a fine, and besides must make restitution in damages ; but if the appellant turns craven, that is, gives up the battle from cowardice, he becomes infamous and loses the privileges of a freeman. On the other hand, if the defendant is defeated, he is to be executed instantly, nor can the King pardon him; but if he is victorious, or can maintain the fight till the evening, he is to be honourably acquitted.
Such is the outline of this proceeding; concerning which, it is to be observed, that great mistakes are made. Of these mistakes, the most common, and perhaps the most natural, is to suppose, that the whole proceeding is an appeal from the verdict already given, with a view to have that verdict reversed. This idea is indeed very agreeable to the sense which the word appeal commonly bears in modern times; but, were the reading part of the community as well acquainted with Blackstone's Commentaries as they ought to be, they would know that the word in question had another sense. It was derived from the French verb appeller; and signified a summons or challenge. It was in fact nothing more than the injured person calling or summoning the supposed offender to take his trial for the offence. It had therefore no reference to any previous trial; but was in itself a complete and substantive proceeding. In the present instance, Ashford might equally have brought his appeal of murder against Thornton, whether Thornton had before been indicted and acquitted or not; although it should be observed on the other hand that, had Thornton been first tried and acquitted on the appeal, he could not afterwards have been brought to trial on the indictment. I
As an illustration of the difference between this meaning of the word appeal, and that which the same word bears in modern use, we may remark that an appeal of murder can be brought only within a year and day after the offence committed; whereas an indictment may be brought at any distance of time. This could not be the case, if the appeal were, according to the common
• Vid. 2 Hawk. P. C. 204. and the authorities there quoted.
mistake, an appeal from the indictment. The truth is, that an appeal, being considered as the personal and private right of an injured party to redress, is, like other personal and private rights, lost by delay. But an indictment is a suit by the King as the representative of the public; and the public right to punish an offender never expires during his life.
It is further curious to observe, that before the enactment respecting appeals in the reign of Henry VII. (a law which throws great light on this whole subject,) so far were appeals from being considered as derivative or consequential proceedings, that an indictment for murder could not be had until either an appeal had been brought and had failed for want of prosecution, or until the year and day for bringing appeals had expired. By the enactment in question, it was ordered that the suit by indictment might be taken at any timne, either within the year and day, or after; not prejudicing, however, the right of the party to appeal.*. The occasion of this regulation professedly was that instances often occurred in which appeals were compounded for; and that, in the mean time, the public prosecution, being suspended for a year, often went to sleep altogether, so that the murderer escaped with impunity. To redress this evil, it was then for the first time enacted, that the King's suit should not wait the suit of the private party. The enactment is greatly and justly commended by Lord Bacon,t who yet does not seem to have exactly apprehended its merits. The truth is, that this change in the criminal practice of the country indicated a striking improvement in the theory and principles of legislation. Before this time, we see that the punishment of murder was considered rather as the right of the private relations of the deceased, than as the duty of the state: at least, it was considered as the duty of the state, subject to the prior right of the relations. No principle, surely, can more strongly savour of barbarism than this; it was, in fact, a legitimate relic of our old Saxon constitution, according to which all homicides might be expiated by a pecuniary satisfaction to the heir or representative of the deceased. The modern and the evidently just doctrine is, that the life of every citizen is the property of the state; and that therefore the punishment of murder is a debt due not to individual revenge, but to public justice. This doctrine was, for the first time, recognized in British practice by the law we have mentioned; and, though we must concede to our author, that considerable mischief has incidentally arisen from that law, and that its operation has been to reduce our criminal justice, in cases of homicide, to a strangely anomalous state, yet we cannot but be strongly of opinion that the good which it has done in civilizing (if • 3 H. VII. c. 1.
| Hist. Hen. VII.