APPEAL OF MURDER AND TRIAL BY BATTLE. Nolumus leges Angliæ mutari. MOST nations retain some traces of the barbarous customs of their ances tors, even when far advanced in the progress of civilization, and when the circumstances which gave rise to those customs either no longer exist, or have entirely ceased to operate. Nor is England less free than other countries from this absurd attachment to ancient manners and usages, although it has obtained, by some happy means or other, the character of an enlightened and reflecting nation. Its inhabitants still manifest so decided a preference for the customs of their forefathers, that any legislative measure which strikes at the root of them, however essential to the peace and welfare of the community, is deemed an encroachment upon their privileges as freemen, and submitted to with a degree of reluctance unbecoming the character of a rational and refined people. When any attempt is made to abolish a useless practice or suppress a favourite sport, the prejudices of the multitude are alarmed, and the cry of innovation is echoed from one end of the island to the other. Thousands and tens of thousands rise up to protest against such wanton encroachments upon the liberty of the subject. The people remonstrate; the senator declaims; and the measure is perhaps re linquished, after all, from a conviction of its impolicy, and a regard to the feelings of the omnipotent multitude. How the British nation has acquired this character it is not difficult to determine. The same causes which have contributed to render us an independent people, by securing to us those distinguished blessings which we now enjoy, have doubtless exerted an influence over our moral habits, and led to a variety of national peculiarities still prevalent among us. Under a free government we naturally expect to find the dispositions of the common people more active, and their conduct less liable to restraint, than where the power is lodged in the hands of a single individual, or of a domineering aristocracy; and where liberty, if it exists at all, is little more than an empty name. It is to this spirit of sturdy independence, notwithstanding all the evils resulting from it, that we are principally indebted for the liberties which our ancestors have bequeathed to us. We may extol, indeed, their wisdom and foresight, and refer all our civil and religious privileges, to their concern for the interests of posterity; but the panegyric in this case is no less improperly bestowed on our part than it is unmerited on theirs. There are doubtless cases on record in which certain patriotic individuals have conferred eminent services on their country, and that, too, with no. other prospect of reward than the satisfaction resulting from a conscientious performance of duty. But such instances are comparatively rare and it may be asserted, without exaggeration, that had the cause of liberty depended entirely upon the efforts of such individuals, it would have been relinquished long since as a vain and hopeless pursuit. We owe much, indeed, to those accidental combinations of events which often assist the rising prosperity of a nation: we owe much, also, to the bravery and intrepidity of our ancestors; but little, very little, to their wisdom as rulers and legislators. Our best and most highly valued institutions have, in many cases, descended to us with such a mixture of imperfection, as to prove that they originated in any thing but wisdom; and though, after a long series of changes and modifications, they have at length taken a direction favourable to liberty, it is very evident that no such result was ever in thè contemplation of those by whom they were framed. The House of Commons, now so important a part of the British legislature, was originally instituted, as ancient documents affirm, ad faciendum et consentiendum; that is, to provide for the wants of the King, and to give a sanction to the resolutions adopted by him and the Lords." The trial by jury, likewise, which we now regard as the palladium of English liberty, was once estimated ať á very low rate, the privileges attending it being deemed an inadequate recompense for the trouble which it gave; and even our boasted constitution itself, the pride and envy of the world, so far from being the result of any preconcerted or regularly organized plan, was originally the offspring of wild caprice and daring usurpation.‡ I have been led unawares into this train of observation, by reflecting upon that singular mode of appeal which has lately been resorted to in the case of Ashford v. Thornton. The trial by wager of battle is one among the many remnants of a barbarous antiquity, which have descended to postérity with little or no modification. Many of our laws which were equally liable to objection in their original state have, at different periods, undergone such revisions as to render them now perfectly salutary and efficient ; but this, with a few others, still continues to remind us of the barbarous source whence most of our present authorized institutions were derived, and to chide us for our tardiness in repealing statutes which a change of circumstances has, in many cases, rendered worse than obsolete. The leading features of the case here alluded to are still fresh in the recollection of all who interest themselves about public affairs. Abraham Thornton, the son of a respectable bricklayer, at Castle Bromwich, in Warwickshire, was apprehended on suspicion of having murdered Mary Ashford, a young woman who had resided in the neighbourhood as a servant for many years, and had uniformly borne the most respectable characfer. Thornton was tried before a jury of his country, and a verdict was returned in his favour. But the laws of England allow the next of kin to call for a new trial in such cases. This was accordingly done by William Ashford, the brother of the deceased, and the two parties appeared in the court of King's Bench; where Thornton, being called upon as usual to declare whether he was guilty or not guilty of the crime laid to his charge, pleaded "Not Guilty," and threw down his gauntlet in open court, as a pledge that he would maintain his innocence in single combat with the appellant. The challenge was not accepted by Ashford, whose counsel contended strongly "In most of the ancient statutes," says Ruffhead, "the Commons are not so much as named; and in several, even when they are mentioned they are distinguished as petitioners merely, the assent of the Lords being expressed in contra-distinction to the request of the Commons." Preface to the Collection of Statutes. + De Lolme's Constitution of England, Book i. ch. ii. See on this subject, the works of De Lome, and Professor Millar. for the necessity of a new trial, and urged various reasons why Thornton should be deprived of his right to demand the trial by wager of battle. But the Judges, who deliberately weighed the arguments on both sides, at length gave it as their unanimous decision that Ashford was bound by the existing laws to submit to this mode of trial, or relinquish the prosecution of his suit; and the result is already before the public. Ashford declining to trust his cause to the issue of a battle was nonsuited, and in his case this was certainly the preferable alternative; for had he accepted the challenge, and afterwards given up the battle from cowardice, he would have become infamous in the eye of the law, and would have lost his privileges as a freeman. Had, he, on the other hand, succeeded after a fair trial in vanquishing his opponent, it would have been regarded as a decisive proof of guilt on the part of Thornton, whose execution must then have followed immediately. But had Thornton proved victorious, or been able to maintain the fight till evening, he would have gained an honourable acquittal; and Ashford, besides being obliged to make restitution in damages, would have subjected himself to a fine and a year's imprisonment. Such is a brief outline of this recent proceeding, and of the law as it now stands in all similar cases of appeal. In the remaining part of the present communication it is my intention to trace this singular custom to its origin, and to notice the various changes and modifications which it has undergone. It is well known to all who possess the slightest knowledge of our criminal jurisprudence, that many remarkable methods of detecting the guilt or proving the innocence of a person were resorted to by our superstitious ancestors. Most of these have long since fallen into disuse, and are now interesting only as presenting to our view the barbarous customs of a former age. Among them we may rank the trial by single combat, which though, in point of fact, prior to the trial by ordeal, was, in the course of time, confounded with it. In the dark ages, this mode of deciding quarrels was frequently adopted, in civil as well as criminal cases, and was founded on a presumption that God would enable the individual who had right on his side to vanquish his opponent. But as the different countries of Europe advanced in civilisation, strenuous efforts were made to abolish so barbarous a practice. At first, palliatives only were applied; the passions of the multitude were consulted; and the restrictions and limitations to which it was subjected were feebly enforced. One of the earliest effective measures towards the abolition of it which occurs in the history of Europe, is that of Henry the First of England, which, however, extended no further than to prohibit the trial by combat in questions concerning property of small value.* From this time it was discouraged, on every occasion, by the civil and ecclesiastical authorities, as banishing equity from courts of justice, and substituting might in the place of right. But it still continued, notwithstanding every effort to check it; and though edicts were issued and laws enacted for this purpose, it had taken too strong a hold upon the prejudices of men to yield to any other remedy than that of time. "The struggle" * Robertson's History of Charles V. vol. i. p. 65, 8vo. edition. says Robertson,* "subsisted for several centuries; sometimes the new regulations and ideas seemed to gain ground; sometimes ancient habits recurred and though, upon the whole, the trial by combat went more and more into disuse, yet instances of it occur as late as the sixteenth century, in the history both of France and England." A trial by single combat was appointed in England, A. D. 1547, under the inspection of the judge in the court of Common Pleas; but Queen Elizabeth interposed her authority, and enjoined the parties to compound the mattert. Another was appointed in 1631, between Donald Lord Rea, and David Ramsay, Esq.; but this was likewise terminated without bloodshed, having been accommodated by the intervention of Charles the First. About seven years later we meet with a third, of which I have not been able to procure the particulars. The last instance in which this extraordinary mode of trial has been resorted to is in the case which has lately occupied so much of the public attention, and in which, if Ashford had been a match in bodily strength for Thornton, and had accepted his challenge, the contest might have terminated fatally to one or both parties. Let us hope, then, that some measure of legislative policy may be devised either to abolish altogether the practice of appealing from the decision of a court of justice, or so to modify it as to leave no reasonable ground of objection to the alteration. In the present enlightened age such a practice, though strictly legal, cannot but be regarded as totally inconsistent with the dignity and solemnity which ought to accompany all law proceedings; and its existence in an enlightened country like England, where proper officers are appointed for the redress of grievances and the due administration of justice, must ever be regarded as one of those political anomalies from which the best constituted states cannot claim an absolute exemption. The first traces of this barbarous custom, according to the learned histo rian already quoted, are to be found in what are called the dark ages. "With this superstitious opinion," says he,§ speaking of the practice of appealing to heaven, so common at that period; "the martial spirit of Europe, during the middle ages, concurred in establishing the mode of trial by judicial combat," which" was considered as one of the happiest efforts of wise policy; all the forms of trial by fire and water, and other superstitious experiments falling into disuse, as soon as this was introduced, and being employed only in controversies between persons of inferior rank." Here, Mr. Editor, two very important circumstances are taken for granted; first, that the introduction of the trial by single combat was subsequent to that of the other modes of trial by ordeal; and secondly, that the former was regarded, from the time of its first institution as a regular judicial process. But is it at all probable, Sir, that the practice of appealing to heaven as a means of demonstrating the guilt, or establishing the innocence of an accused person, should have been discontinued, in all its forms, but that of the trial by judicial combat, if History of Charles V. vol i. p. 66. + Spelman's Gloss. in voc. Campus. The word appeal is derived from the French appeller, and signifies to call out or chal lenge. It does not necessarily imply that a verdict has been already given, since there may be an appeal in cases where there has been no previous trial by indictment. § History of Charles V. vol. i. p. 61. the principle was still recognised upon which the mode of trial was founded? Let it be once granted that the Deity interposes his authority, in this direct and visible manner, and what bounds will you prescribe to the forms in which that interposition shall be manifested? The accused person may be required either to plunge his arm into a vessel filled with boiling water, to lift a red-hot iron with his naked hand, to walk barefoot over burning plough-shares, or to submit his cause to the issue of a trial by single combat; but upon the principle that he who escapes unhurt, or comes off victorious, stands acquitted by the judgment of heaven, we must be compelled to pronounce all these modes of trial equally efficacious. What, then, could have been the motive for adopting the trial by judicial combat, in preference to those other forms of ordeal, which custom had already established, if nothing depended upon personal courage or bodily strength, and if the final decision of the contest was ascribed to a particular interposition of Providence, in favour of the individual who had right and justice on his side? To me, Mr. Editor, I confess, it appears far more consonant with the manners of a barbarous age, to retain such customs as time has sanctioned and rendered venerable, than to adopt new ones in their stead, unless some very urgent cause leads to the change, and renders it absolutely and indispensably necessary. Being unable, however, in the present instance, to assign any such cause, and having no direct historical testimony to allego in proof of the assumed innovation, it is natural to look elsewhere for the origin of the practice in question; and, from various circumstances connected with the history of ancient Europe, I am induced to believe that this custom, or something very similar to it, prevailed there from the earliest times. This point Dr. Robertson seems inclined to concede in the "proofs and illustrations" subjoined to the first volume of his history,* where, though he still continues to assert, "that appeals to the justice of God by the experiments with fire and water, &c. were frequent among the people who settled in the different provinces of the Roman Empire, before they had recourse to the judicial combat," he nevertheless allows, that "the judicial combat seems to have been the most ancient mode of terminating any controversy among the barbarous nations in their original settlements." Now, upon the supposition, Mr. Editor, that this practice had been once discontinued, and all traces of it lost, I feel totally unable to account for its subsequent adoption, to the exclusion of other long-established forms, on which results equally efficacious and infallible were supposed to depend; and hence arises a presumption that, instead of having been for a while relinquished, without any apparent or probable cause, the practice alluded to only underwent some modification when the trial by ordeal was introduced, and, from being a private and unauthorised institution, then received for the first time the direct sanction of the law. M. de Montesquieu, in his observations on the trial by judicial combat, uniformly speaks of it as the revival of an ancient custom, and supposes it to have been derived from the spirit of the barbarian laws,† though he does not attempt to trace it higher than the tenth or eleventh century. In order, however, to ascertain its true origin, we must extend our researches, I ima * P. 349. ↑ De l'Esprit des Loix, liv. xxviii. chap. 18. |