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mistake, an appeal from the indictment. The truth is, that ap 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 time, 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 withi 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,+ 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. i.
+ Hist. Hen. VII.
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 Seventhnay, 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 inurder, but those of various other injuries) constituted a very copious title in the ancient Euglish 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. 321. Vid. etiam Dyer, 296.
+ Compare 4 Bl. Com. 313 & 419.
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 nations 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 unthriftiness 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 doon-books and digests of our Alfreds and Edwards into a comparison with the barbarons judicature of a South-sea island or a tribe of Esquimaux. The merits of those eminent law-givers may be said to be graven 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 niore interesting subject of inquiry, when taken in connexion with the wager of battle. 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, where 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 ambition to soar beyond the times of Bracton and Fleta. Yet, as many persons profess the most profound admiration 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 same 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, says, that it ought not to be called impious, since in its origin it was only a secular duel. The force of this argument we do not distinctly perceive, for the author himself seems to allow that, on this secular duel, there came at length to be engrafted the superstitious idea of an imunediate appeal to the Deity; and, as this is precisely the nature of the judicial combat at the present moment, why may we not condemn the entire practice as we find it, without resorting to grounds of defence confessedly obsolete?
Before we quit this subject, may we be permitted to dwell one moment on what may perhaps appear to be a point of mere curiosity ? Mr. Kendall treats with great disregard the common opinion, that the judicial combat was introduced into this country by the Normans. According to him, it was a Saxon as well as a Norman mode of trial, though in less repute among our Saxon ancestors than among their Norman invaders. Though this opinion seems fairly tenable, yet the proofs in its support are not as full as might be wished. Sir William Dugdale, indeed, after Olaüs Wormius, states that the judicial combat prevailed among the Anglo-Saxons till abolished by the Danes.* ' Perhaps on such a point the authority of Olaiis Wormius may be deemed questionable; but it certainly seems that the practice, if it ever existed among the Saxons, had nearly disappeared before the period of the Conquest. Yet it is difficult to concur in the feelings with which some authors weep over the supersession of the Saxon trial by jury, and the establishment of the Norman trial by combať. The rude elements of our jury-trials certainly appear to have been derived from the Saxons; but it has required centuries to elaborate them into the form they have now taken. The Saxon trial by jury, if it may be so called, was an useful, but a very simple and imperfect contrivance; and, when we consider that the various ordeals by fire, by water, by hot iron, by the cross, and by the corsned or morsel of execration, were at least as purely and properly Saxon modes of trial, as the use of a jury, we may the less lament that the subjects of the Harefoots and the Ironsides should have been compelled to adopt the more glorious ordeal of
· These indisputable monunients of our ancient rudeness, (says Burke, in his admirable Abridgment of English History, speaking of the Saxon laws,) are a very sufficient confutation of the panegyrical declamations, in which some persous would persuade us that the crude institutions of an unlettered people had attained an height, which the united efforts of necessity, learning, inquiry, and experience, can hardly reach to in many ages.'+
Orig. Judie. 97.
+ Book 2. ch. 7.