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rence of ceremonial, according as the party accused was of mean or noble rank.* This difference of ceremonial, however, does not appear to have extended to the habits or weapons of the combatants. All who fought, fought with the baton and target. On the other hand, it is notorious that, in battle on an appeal of selony, the parties could not employ champions, but were obliged to fight in their own proper persons. Here, then, arises the difficulty to which we alluded. is it imaginable that knights, or even esquires of gentle blood--persons habituated to rein the horse, to throw the lance, and to joust in complete armour-should condescend to play publicly a match at single-stick, with bare heads, bare legs, and arms bare up to the elbows ? Alciat, in speaking of the judicial combat, is indignant that men of birth and rank should deign to wage battle even on foot:— Omniurn more receptum est' (he says) ' nobili et generoso viro magis convenire, ut eques et quidem loricatus congrediatur, quàm mercenariorum peditum more, cum equestris militia nostris moribus dignior sit, et nobilium usû frequentior.'+ Here, indeed, he is a little fastidious; for it was a very usual practice with knights of the highest rank, and the most chivalrous honour, not merely in mortal quarrels, but in the generous encounters for fame peculiar to those romantic times, to stipulate that they should meet on foot, armed with battle-ax, sword, and dagger. But what would Alciat have said, had he beheld the nobiles et generosi of England, drubbing each other, in the guise of half-clad rustics, with staves of an ell long?
Montesquieu, it is to be observed, states, that “ in France only villains fouglit with the buckler and baton, gentlemen armed at all points. Whether this account be perfectly accurate, or not, such limited research as we have been able to make does not qualify us to say. Monstrelet, however, we perceive, describes a wager of battle, on a charge of murder, in the court of Duke William, Count of Hainault. The duke, he says, presided at a mortal combat (teint un champ mortel) in which Brunecte, a gentleman of Hainault, charged Soltier Bernaige, a gentleman of Flanders, with the murder of one of his near relatives. The parties fought with lances and swords, and Brunecte overcame his adversary, and forced him to confess the crime of which he had been appealed; upon which he was, by the duke's order, beheaded without delay.* Now had these brave gentlemen fought in England, all authorities seem to agree that they must have thrown aside their spears and swords, and beat one another with sticks tipped with horn. It is, however, extremely hard to believe that the chivalry of England, the flower of the courts of Cæur-de-Lion and the Black Prince, the countrymen of Chandos and Talbot, should have been less nice on the point of knightly rank and etiquette than their brethren on the continent. How then is this difficulty to be solved? Must we suppose that the persons in question, on the plea of their military character, found
** Facto siquidem sacramento in hâc formâ, statìm committatur defensor duobus militibus vel legalibus hominibus aliis, secundùm quod appellatus nobilis fuerit persona vel ignobilis,' &c. Lib. iii. cap. 21. We take the liberty of here adding that Blackstone, when, in his account of a trial by battle on a writ of right, he describes the chan pions as introduced by two knights, seems to us to have erred, in stating that to have happened always, which Dyer and Spelman, bis authorities, state only to have happened in a specific instance. We should rather conceive that it was only when the litigant parties were persons of some distinction, that their champions were introduced by knights; and that, in other cases, they were usbered in by inferior freeholders, or, as Bracton in the passage just cited says, legules homines alii. Alciai, c. 39 and 40, apud Dugd. Orig. Judic. 77.
ways and means of carrying all their combats into the Court of Chivalry, where, it is well known, the judicial battle was fought in complete armour? We profess ourselves unable to decide these questions.
But, in these inquiries of mere curiosity, we are forgetting a far more important topic, and indeed the very topic which we chiefly proposed to ourselves on the present occasion. That some alteration of our criminal law with respect to appeals and trials by battle is imperiously called for, seems very generally thought; and we take it for granted that the subject will be considered during the present session of Parliament: but it is not very easy to determine how far the new-inodelling ought to extend. All indeed agree that the monstrous opprobrium of wager of battle cannot too soon be removed; but an opinion bas been suggested that the appeal of murder might be allowed to reinain, provided only it be made to undergo such moditications as shall turn it into a new trial of the person accused, granted by competent authority. It is this question on which we would wish to say a few words.
In the discussion of this point, thus abstractly and nakedly put, we regret that the author before us does not afford us so much assistance as might have been hoped. That some change or other ought to be made in the law of appeal, his argument cannot fail to enforce on the mind of every unprejudiced reader; and in this view, bis work seems lo us very valuable. Nor is he slow to deliver his opinion, that the very principle of a second criminal trial is altogether unsound and monstrous. But, when his reasoning is traced, it will be found that he so blends this principle with the absurdities actually attached to it in the practice of English law, as to afford no distinct view of the merits of the principle itself. At the same time it would be doing him an injustice not to notice the grounds on which he intimates rather than argues that the principle ought to be condemned. He repeatedly propounds it as a great and sacred maxim of the Chroniq. c. 23.
common law, that no man shall be put into jeopardy of his life oftener than once upon the same charge. The authority of the common law we certainly feel no great disposition to question; but it
may be fair to ask, of what common law? If by common law be here meant what is usually opposed to statute law,-or that great body of consuetudinary rules which formed our jurisprudence, before parliaments are known to have sate, or at least to have sate to any purpose,
,--we ask whether it was not another great and sacred principle of the same law, that all suits, civil and criminal, should be decided by sticks and swords ?--And again, that no accused person should be acquitted, who on being thrown into a pond, did not instantly sink?- And again, that a persou was innocent of every possible crime, if, on being dared to it, he could swallow a crum of bread without being choked :-But, if by the common law is meant the whole of our municipal code as it now stands, then we would beg leave to observe that this very code, while it sanctions the inadmissibility of second criminal trials as a rule, yet allows their lawfulness as an exception; and, if we are to argue, not from reason, but on the bare naked ground of authority, the allowance in the one case seems as good as the sanction in the other.
Besides this reference to the authority of the common law, the writer has another objection to second criminal trials; for he considers them as violating the trial by jury. He very ingeniously argues, that the trial by jury in some sense succeeded to the trial by ordeal, and was intended as an appeal, not merely to the judgment of man, but to that of the Deity; and, on this ground, he accounts for the use of the response, ordinarily put into the mouths of persons arraigned, who, on being asked how they will be tried, are directed to reply,' by God and their country.' The derivation has great probability; for it seems very natural to suppose that our ancestors adapted both the trial by battle, and that by jury, to their favourite notion of an ordeal. But when the author proceeds to infer that it would therefore be impious to renew a criininal trial, because it would be to ask the divine judgment a second time, and when, on this account, he would retort the charge of impiety on the opponents of the trial by battle, he is, of course, only indulging in a sarcasm ad hominen. For surely such a sentiment, gravely held, would be unworthy of the good sense and acuteness which the work elsewhere exhibits.
In proceeding to deliver our own sentiments on the alternative question of abolishing appeals of murder, or so modifying them as to convert them into new trials, the first remark that occurs is, that the abolition of the wager of battle would alone reduce the appeal nearly to what is suggested. By our present practice, the defendant in an appeal of murder
may wage battle, unless the presumption against him is violent. That is, he is not obliged to put himself on his trial before a jury, unless the judges of the King's Bench are of opinion that the primâ facie evidence of his guilt is vehemently strong. Now abolish the absurd mummery of the wager of battle, leaving to the defendant in favorem vitæ his advantage of exemption from trial, unless the judges are of the opinion just mentioned as to his guilt; and enact further, that no appeal shall lie, unless (as in Thornton's case) the party has previously been acquitted of the same charge on an indictment; and by these means the appeal will become in effect a new trial granted by the court on the ground that the prisoner was improperly acquitted. We do not mean to say that a few more changes would not be necessary; as, for example, the granting the power of appeal to all other persons as well as to the heir; the exemption of the appellant from the penalty of imprisonment in case of an acquittal; the conferring on the crown the power of pardon in case of a conviction, which power the crown now does not possess in this proceeding, appeals being considered as private suits; together with other modifications of less moment. All we mean to say is, that the appeal might be new-modelled as required, with a very considerable retention of its present forìs and modes of procedure.
If such a change were effected, it cannot be denied that some of the chief objections to this anomaly in our criminal jurisprudence would be removed. The appeal of murder would no longer bewhat it altogether was originally, and what it still is liable to beindividual revenge borrowing the arın of the law. It would no longer subject those who might have honourably resisted the attack of public prosecution to a fresh struggle for life against the attempts of private malice. It would, to be sure, be a new trial after an acquittal; but a new trial granted only in extreme cases, and instituted by the highest judicial wisdom.
In civil cases, it is well known that our judges grant new trials almost daily. If a verdict has been given against evidence, if some piece of evidence material to the issue was improperly admitted or excluded,—if excessive damages have been given,—if the judge who tried the cause misdirected the jury, and they erred in consequence of such misdirection,--the case is again sent to be • examined and decided on by the country. It comes to a fresh jury, who, stimulated by the very circunstance that a mistake is supposed to have been before committed, which it belongs to them to correct, may be supposed to hear with peculiar attention, and to determine with peculiar care.
Nor does any thinking person doubt that this revising power in the superior courts forms a most salutary and important part of our civil jurisprudence. VOL. XVIU. NO. XXXV.
In a certain degree, the same revising power already exists in the practice of our criminal as well as our nisi-prius law. Where any just exception lies to an indictment, judgment (in technical language) is arrested; in which case, the party is liable to a new trial, though not sent to it as a matter of course. In the lighter criminal cases, if a verdict of guilty is given in direct opposition to the evidence, a new trial may be granted. In cases of a graver nature, if the same thing happens, or if the verdict has been rightly given but circumstances of mitigation appear, the crown, the fountain of justice, may interpose a pardon. But let it be observed that, in all these cases, the reversal of judgment operates only on a prisoner improperly or harshly convicted. For the opposite case of an improper acquittal, (except sometimes in actions on penal statutes, or where, under the form of a criminal proceeding, a civil right is in fact tried,) our legal practice affords no remedy whatsoever.
The question therefore under consideration is, why there should be no remedy for this evil, as well as for the former? Juries may acquit, as well as condemn wrongfully; and why should we not have the means of repairing their errors in the one case as well as in the other? But, if a revising power in such cases is to be exercised at all, it can only be by giving the judges a jurisdiction to send the party, when they see fit, to be tried before another jury. For it never would be borne, that, after a person accused had been acquitted by his peers, any other authority than that of his peers should reverse his acquittal and pronounce him guilty. Therefore the proposed question comes to this, whether the court shall have power to grant new trials in cases of an acquittal for murder?
Before we enter on this question, we cannot help saying that it would not be easy to give the court this power in cases of acquittal, without giving them a like power in cases of conviction. If we are to increase the risk of detection to the guilty, there is no reason why we should not increase the chances of escape to the innocent. It is indeed true that persons are very seldom convicted of a heavy offence without good grounds; for, if there is any doubt about the charge, juries lean to the side of mercy. And, even where an improper conviction takes place, the sentence is not executed; for the friends of the party represent the case to the privy council, and a pardon is gained. Still, if it were formally enacted that an acquitted prisoner might be sent back to undergo a new trial for his life, the public would hardly be satisfied unless the act also said that a condemned prisoner might, in certain cases, demand a new trial for his deliverance. And, though it might not be very reasonable in the public to expect this, yet very plausible arguments might be used for asking it; -arguments which perhaps it would