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we may so speak) this important part of jurisprudence, has greatly exceeded all the injuries with which it may be thought chargeable.
But the march of laws, like that of justice, is tardy; and vestiges of the old barbarism even yet remain. That the private right of appealing for murder should subsist at all, is perhaps very little to the credit of British refinement. But, what is far worse, at a period long subsequent to the reign of Henry the Seventh, nay, we believe, even down to the present moment,—the priority of the public over the private right in cases of murder, has by no means been distinctly established. On the contrary, Sir Matthew Hale lays it down as law in his day, and we presume it to be law still, that if a man be indicted and appealed before the same justices for the same murder or other felony, the party shall be arraigned upon the appeal first, and not upon the indictment, in favour of the appellant.'* What is this but to say that, whenever the public and the private rights clash together, the private right shall have the preference?
From what has been observed, however, it is impossible not to infer the high antiquity of appeals for murder. They were evidently considered as a great common-law right of the subject, and one with which the public claims, or rather (as they were deemed) the king's claims, were to be very tender of interfering. In effect, the learning of appeals (comprising not only appeals of murder, but those of various other injuries) constituted a very copious title in the ancient English law. Blackstone, indeed, deduces the origin of appeals of murder from the Saxon weregild, which was a composition paid by the murderer to the relations of the deceased. The permission of such a composition he appears to consider as a proof of the constitutional mildness of the Saxon laws;t but some legal process was necessary to recover the weregild, and, when the offence of murder grew no longer redeemable, then he conceives that the private process was still continued, in order to ensure the punishment of the offender. If we understand the learned author, he means to say that the appeal was in fact intended as a public proceeding, though, for the sake of convenience, the form of it was adapted to the private process before used for the recovery of the weregild. It is rather the weakness of this great man, that, under the professional, and, in its place, just notion of founding the liberties of Englishmen on the ground of ancient right, he is perpetually disposed to magnify the polity of our Saxon ancestors, and to charge all the sins of the old law on the Norman invaders. Nothing, we think, can be plainer, than that the ancient appeal was, not in form only, but in substance and in origin, a private process; and it seems to us almost equally certain that, so far from *% P. C. 221. Vid. etiam Dyer, 296.
1 Compare 4 Bl. Com. 313 & 419. M4
the appeal having superseded the taking of the weregild, it was, at least in its rudiments, coeval with, or antecedent to, that barbarous practice. Almost all rude vations hold the principle that the death of a murdered man is to be revenged by his surviving relatives. The rule is, blood for blood;- but the unthristiness of savages, which makes the supply of the wants of the passing day so important to them,—their low estimate of the value of human life-and the uncertainty and inconstancy of their relative affections—easily admit of an exception to the rule, whenever the murderer offers a bribe. Here therefore, if we only interpose a few rude judicial forms, we have at once the principle of the appeal and that of the weregild; and the sole peculiarity in the Saxon constitution seems to have been that, in process of time, the exception swallowed up the rule.
Let it not for a moment be supposed that we would degrade the doom-books and digests of our Alfreds and Edwards into a comparison with the barbarous judicature of a South-sea island or a tribe of Esquimaux. The merits of those eminent law-givers may be said to be graren with an iron pen in the English constitution even as it now stands. But the progressive refinenient of laws is necessarily limited by that of manners. Every great legislator must, like Solon, content himself with giving the people not the best government, but as good a government as they can bear; and, if the English code, even as at present constituted, betrays symptoms of its rude original, we surely cannot wonder at finding much stronger marks of remaining barbarism in the jurisprudence of the AngloSaxons.
Hitherto we have spoken of appeals simply considered; but they become a much more interesting subject of inquiry, when taken in connexion with the wager of batile. The appeal, indeed, and the battle, though very generally thought to be connected, are not necessarily so; at least they have not been necessarily so for some centuries past. An appeal may often be brought where no wager of battle is allowed. The books lay it down, that an appellant is not obliged to accept the challenge to battle, if he is an infant, or a cripple, or an old man, or a priest, or a citizen of London. Women are stated to have the same privilege ; but the most observable case of exception is that which is contended to have occurred in the appeal now actually pending, namely, u here there is a violent presumption of guilt against the party accused. Where no presumption, or proof to this effect exists-there all human means of ascertaining the truth seem to fail, and a dignus vindice nodus is conceived to arise-an occasion on which the immediate interposition of Providence may be expected. But, where the proofs of guilt are on the face of them glaring, the decision may be
left to the ordinary exercise of human judgment, without demanding a miracle.
Such at least are some of the common doctrines on this subject; but our author denies these doctrines to be agreeable to the old law; and he has supported his proposition with great learning, acuteness, and force. He maintains that, originally, the appeal and the battle were not merely connected, but were one and the same thing; and, if they differed at all, it was only as the challenge to a fight differs from the fight itself. He maintains that an appeal was neither more nor less than the demand of a battle ; and that where there was no battle there was no appeal. He maintains also, that the battle thus demanded was not originally considered as an ordeal, or a reference of the decision of the contest to heaven; that it had not a religious but a secular character, and was in fact only that appeal to the fortune of arms which forms the whole sum of the jurisprudence of savages. Lastly, he maintains, that the exceptions to the allowance of wager of battle were originally all exceptions in favour of the person accused, although, under our mongrel and disgraceful system,' (as he is pleased somewhat strongly to term it,) they have, by a very strange perversion, entirely shifted sides.
On these very curious points we fear to hazard the delivery of an extemporaneous opinion. The first impression certainly is one of assent, at least it is so with regard to the author's leading positions; but much consideration would be requisite to the formation of a definitive judgment. As to the practical utility of these speculations, we do not conceive that they would produce much effect on those who are content to cling to the law of England, such as it has existed for the last two or three hundred years—on those who draw their knowledge from Hale and Holt, and, at all events, have no ainbition to soar beyond the times of Bracton and Fleta. Yet, as many persons profess the most profound adıniration for the law of appeal, and would have us cherish it as an invaluable legacy from our Saxon ancestors, while at the same time they condemn the trial by battle, as an enormity worthy only of Gothic and Norman barbarism, there is undoubtedly some use in showing that the sweet and the bitter streams sprang from the saine source, and that no argument from antiquity can be employed in favour of the appeal, which does not in the same degree sanctify the battle.
In the particular conclusions, however, which the author draws from the curious knowledge he has collected, he does not appear to us always exact. Indignant at the preference which is often shown to the appeal over the trial by battle, he insensibly becomes almost the apologist of the latter; and, amongst other remarks, nor any other for me, whereby the law of God may be depressed and the law of the devil exalted. So help me God. And then, after proclamation of silence under pain of imprisonment for a year and a day, the combat is to begin, and to continue, unless either party yields or is vanquished, till the stars appear in the evening. The effect of defeat or surrender, on either side, has before been mentioned.
The many absurdities of this ceremonial do not require to be particularly pointed out. Yet it seems perfectly conceivable that in rude and superstitious times, the force of conscience might often make the proceeding efficacious in the detection of crime. Some author remarks that probably the ordeal of the corsned (which was a morsel of bread taken by a person accused, with a solemn imprecation that it might choke him if guilty) seldom proved fatal. On the contrary, we are persuaded that, to the guilty, it frequently proved fatal. Fear alone greatly affects the organs of deglutition; much more would a guilty fear, immediately directed to the imminent danger of not performing the act, operate in the same manner. The judicial combat was probably of still superior efficacy. On the one hand, conscience would make a coward of the criminal; and, on the other, the accuser would seldom subject himself to the hazard of an equal battle, unless he were animated by revenge or enthusiasm to such a pitch of determination as seldom fails to verify its own auguries.
Agreeably to this idea, stories are handed down of the conviction of criminals, through the means of battle, by antagonists far inferior to them in strength or expertness. The most curious example probably on record is one cited from the Mémoires sur les Duels,' in Montfaucon's ' Antiquités de la Monarchie Française,' vol. iii. p. 69. The author before us has given a translation of the story; but the reader may be amused by an extract from the original. We may observe that the same incident is related in St. Palaye's · Mémoires sur l'ancienne Chevalerie,' and in Colombiner's · Théâtre d'Honneur et de Chevalerie,' and that an engraving of it, from an ancient representation in the Castle of M09targis, is given by Mr. Johnes in the supplementary volume to his translation of Monstrelet. The theatres also, both of Paris and London, have, within these few years, exhibited pieces fouuded
The Chevalier Macaire, jealous of the favour shewn by the king to the Chevalier Aubri de Mondidier, took an opportunity of murdering the latter in the Forest of Bondi, while accompanied only by his dog, an English blood-hound. The dog, however, remained by his master's grave several days; and, when compelled to quit it by hunger, went to the house of an intimate friend of
Aubri's; whom, by his cries and significant actions, he drew to the spot; where, on a search being made, the body was found. Afterwards, the dog on all occasions assaulted Macaire; till, at length, suspicion was excited, and the king ordered a judicial combat between Macaire and his dumb accuser.
•Macaire et le chien furent tous deux mis dans le camp comme deux champions, en presence du Roy et de toute la cour: le gentilhomme armé d'un gros et pesant baston, et le chien avec ses armes naturelles, ayant seulement un tonneau percé pour faire ses relancements. Aussitost que le chien fut lasché, il n'attendit point que son ennemi vint a lui, il sçavoit bien que c'etoit au demandeur d'attaquer : Mais le baston du gentilhomme etoit assez fort pour l'assommer d'un seul coup: ce qui l'obligea á courir çá et lá, á l'entour de luy pour en eviter la pesante cheute. Mais enfin, tournant, tantost d'un coté et tantost d'un autre, il prist si bien son temps, que finalement il se jetta d'un plein saut á la gorge de son ennemy, et s'y attacha sy bien quil le renversa parmi le champ, et le contraignit á crier Misericorde, et á supplier le Roy qu'on luy otast ceste bete, et qu'il diroit tout. Les juges s'estant approchez, il confessa devant tous qu'il avoit tué son compagnon, sans qu'il y eut personne qui l'eust put voir, hormis ce chien, duquel il se confessoit vaincu.'
It will be observed, in favour of the theory of Mr. Kendall, on the subject of appeals, that, in the above extract, the dog, who was the accusing party, or appellant, is considered also as the demandeur, or challenger. Indeed, the meaning of an appeal, as we have before observed, is a challenge ; and, in the old chronicles, the term uppellant is constantly used for one who challenges another to battle.
With respect to the form and manner of the judicial duel, we feel one difficulty, the solution of which we cannot command sufficient leisure to seek. It is well known that the jurisdiction, which our ancient Court of Chivalry possessed within the realm, was confined to matters concerning war and military honour, and did not extend to pleas or appeals determinable by the common law. Iu the palmy time,' indeed, of feudal and baronial grandeur, that court was perpetually transgressing its limits; within which, however, it was driven back by repeated statutes.* It follows, that appeals of murder or other felony within the realm, in which knights or other persons of high degree were concerned either as appellants or as defendants, fell under the cognizance of the courts of common law. Cases, therefore, might frequently occur, in which such personages would be called to wage battel according to the forins already described; for knights, unless they were peers, were not exempt. Indeed Bracton, in describing the proceedings in a common-law trial by battle, expressly states some slight diffe
* 8 R. II. c.5. 13 R. II. c. 2. 1 H. IV. c. 14.