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 çivilisation, 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."

29

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 mat tert. 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 historian 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.
Rushworth in Observat. on the Statutes, &c. p. 266.

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 iudictment.

§ 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 allege 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 ot 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.

gine, to a much earlier period than this, and transport ourselves back to the time when the right of avenging injuries and inflicting punishment was vested in the hands of individuals, and depended more upon private caprice than any authorised or acknowledged form of law.

Many traces of this singular state of society are still preserved in ancient historical records; and it is only a doctrine of late introduction that public justice ought to supersede the right of individual revenge. In the infancy of modern jurisprudence, any person who chose was allowed to signify publiely the law to which he gave the preference; and by the prescriptions of that law he was obliged to regulate his conduct, without being bound to comply with any practice authorised by other codes of law. The sentence of a judge, in these times, might be set aside by any one who had hardihood sufficient to call in question the equity of his decision, and courage to substantiate the charge by an appeal to arms; nor could the judge, without in famy, refuse to accept the challenge, or decline to enter the lists against such an adversary. In what, then, Mr. Editor, do such lawless proceedings differ from the rude customs of barbarians and savages, except that in the one case, each individual is to avenge his own wrongs, without appealing to any authorised tribunal for redress; and, in the other, when dissatisfied with the result of a legal process in a court of justice, or unwilling to trust his cause to the decision of competent judges, he takes the law into his own hands, and closes the business in a summary way by endangering both his own life and that of his accuser? Is it, Sir, in the nature of things possible, that a eustom which bids defiance to all the established forms of law, should be allowed to gain a footing in a civilised country, unless it owed its birth to times far remote, and to circumstances over which decrees and statutes possessed no kind of controul? Could senates authorize a prac tice so absurd and monstrous, unless it had originated among a people with out laws and without magistrates, and had been rendered familiar to them by inveterate habit and long experience? No, Mr. Editor, the supposition is too fallacious to be indulged even for a moment; and if the existence of the practice in question is to be accounted for upon any known principle, it will be found, I am convinced, to have originated in an age far distant from that to which it has been traced by Robertson and Montesquieu.

Nations, in their infaney, have always some features in common, as chil dren, in different countries, have certain resemblances of figure and manners dependant upon their age, Time and accident, however, exert a perceptible influence over the habits of individuals and produce an endless variety of character among them; and in like manner, whole bodies of people, when they emerge from a state of nature and lose their ancient simplicity, adopt particular customs, and yield to the influence of external circumstances, so that their characters become as different, in the course of time, as the soil and climate of the land in which they dwell. This fact will account, in a great measure, for the variety which now exists in the laws, manners, and customs of different European nations, which formerly belonged to the same stock, and submitted to the same form of government; and if the origin of

Leg. Longob. lib. ii. tit. 55, § 39. † Robertson's Hist. of Charles V. vol. i. p. 62.

the appeal of murder, and trial by single combat, can now by any possible means be traced, this will assuredly afford the only true principle of solution.

Let us figure to ourselves a nation in its earliest and rudest state, where every father of a family exerts an unlimited authority over his children and dependants, and claims them as his own exclusive property. Under such circumstances, each clan of course becomes attached to its own leader; and, as individual security can result only from a strong principle of union among the body, an injury offered to one must necessarily be regarded as the common cause of all. If any person, for instance, should attempt, by violent means, to deprive his neighbour of the fruits of his industry, it would then become his duty to oppose force to force. If, however, his antagonist, being stronger or better armed than himself, should prevail, he would then seek the means of redress among the members of his own elan, and would call upon them to unite with him in taking vengeance on the aggressor. If, again, his property should be taken away by stealth, or any of his family should meet with a violent death, there being no regular tribunal to which he can appeal, he would be under the necessity of claiming for himself the right of exacting punishment from the offender; and though circumstances, in such a case, must of course determine how far it would be politie or safe for him to proceed, yet individual security would require that, as a general principle, restitution should be made to the uttermost, and blood should be repaid with blood.

It is to a state of society like this, then, Mr. Editor, that we must look for the origin of the trial by battle; and, if we compare the laws and institutions of different countries, however far advanced in the progress of civilisation, and however remotely situated from each other, we shall probably discover, in most of them, something to remind us of these patriarchal times.

The law of Moses is the most ancient authority upon the subject to which an appeal can be made, and there we find abundant examples to establish the fact with regard to the Hebrew nation. It is decreed, for instance, Lev. xxv. 25. that the next heir shall have the right of redeeming a mortgaged field; and, Num. v. 8. that property purloined from a person since dead shall be restored to the nearest descendant. We read, also, Num. xxxv. 12, 19, 26, 27, and elsewhere, of the avenger of blood, and the power granted to him of taking away the life of a murderer, subject to such restrictions as Moses thought proper to enjoin.

We find, likewise, traces of the same custom among the descendants of Ishmael, who inhabit Arabia Petræa and Deserta, and particularly among the Bedouins, who live, at this day, in little better than a complete state nature. "Among these Arabs," says Michaëlis,* "that man is in the highest degree contemptible, and the subject of universal reproach, who has not avenged his relation's death; or is at least as much despised as the military man among us who refuses a challenge. On the other hand, the avengment of blood is, with them, a man's highest praise; and is regarded as a proof of valour and magnanimity." This, however, is not the character of all the

* Comm. on the Law of Moses, vol. ii. art. 134, § 4.