fences. This was a custom, derived to us, in common with other northern nations, from our ancestors, the antient Germans; among whom, according to Tacitus ", "luitur "homicidium certo armentorum ac pecorum numero; recipitque

66

satisfactionem universa domus1.” (12) In the same manner by the Irish Brehon law, in case of murder, the Brehon or judge was used to compound between the murderer and the friends of the deceased who prosecuted him, by causing the malefactor to give unto them, or to the child or wife of him that was slain, a recompense which they called an eriach. And thus we find in our Saxon laws (particularly those of king Athelstan *) the several weregilds for homicide established in progressive order from the death of the ceorl or peasant, up to that of the king himselft. And in the laws of king Henry I. ", we have an account of what other

(12) According to an author whom I have before cited, the word weregild, is compounded of the German words wehr, defence, or guarantee, and geld, money, and signifies the price paid by him who had injured another, for protection to be afforded him by the public, against that person's revenge. He marks it as the first step made by our northern ancestors to the placing the punishment of individual wrongs in the hands of the public. In the earliest traces which can be found of it, it seems to have been a private arrangement between the parties, by the intervention of their mutual friends; then the laws fixed the sum, which should be deemed a sufficient compensation for each injury; and, finally, on the payment of that sum, took the injuring party under their protection, and forbade the injured family to prosecute their revenge. At this stage it became natural that a part of the weregild should be paid to the public; the remainder went to the injured person or his family; and the whole was made up by the joint contribution of the individual and his family. This was the natural result of its being a system substituted for one in which a man's family took part in all his quarrels, and were of course exposed to the consequences of all his actions. 1 Meyer, 126, &c.

offences were then redeemable by weregild, and what were not so ". As, therefore, during the continuance of this custom, a process was certainly given, for recovering the weregild by the party to whom it was due; it seems that, when [314] these offences by degrees grew no longer redeemable, the private process was still continued, in order to insure the infliction of punishment upon the offender, though the party injured was allowed no pecuniary compensation for the offence.

BUT, though appeals were thus in the nature of prosecutions for some atrocious injury committed more immediately against an individual, yet it also was antiently permitted, that any subject might appeal another subject of high treason, either in the courts of common law ", or in parliament, or (for treasons committed beyond the seas) in the court of the high constable and marshal. The cognizance of appeals in the latter still continues in force; and so late as 1631 there was a trial by battel awarded in the court of chivalry, on such an appeal of treason: but that in the first was virtually abolished by the statutes 5 Edw. III. c.9. and 25 Edw. III. st. 5. c. 4., and in the second expressly by statute 1 Hen. IV. c. 14. So that the only appeals now in force, for things done within the realm, are appeals of felony and mayhem. (13)

AN appeal of felony may be brought for crimes committed either against the parties themselves, or their relations. The crimes against the parties themselves are larciny, rape, and arson. And for these, as well as for mayhem, the persons

(13) Hawkins, b.ii. c. 23. s. 29. doubts whether appeals of treason were abolished, as the text supposes, and his doubt receives some countenance by the fact of the legislature recognising them as a subsisting mode of trial, in the 59 G.III. c. 46. mentioned in note (11).

robbed, ravished, maimed, or whose houses are burnt, may institute this private process. The only crime against one's relation, for which an appeal can be brought, is that of killing him, by either murder or manslaughter. But this cannot be brought by every relation: but only by the wife for the death of her husband, or by the heir male for the death of his ancestor; which heirship was also confined, by an ordinance of king Henry the first, to the four nearest degrees of blood". It is given to the wife on account of the loss of her husband: therefore, if she marries again, before or pending her appeal, it is lost and gone; or, if she marries after judgment, she shall not demand execution. The heir, as was said, must also be heir male, and such a one as was the next heir by the [315] course of the common law, at the time of the killing of the ancestor. But this rule has three exceptions: 1. If the person killed leaves an innocent wife, she only, and not the heir, shall have the appeal: 2. If there be no wife, and the heir be accused of the murder, the person, who next to him would have been heir male, shall bring the appeal: 3. If the wife kills her husband, the heir may appeal her of the death. And, by the statute of Gloucester, 6 Edw. I. c. 9. all appeals of death must be sued within a year and a day after the completion of the felony by the death of the party: which seems to be only declaratory of the old common law for in the Gothic constitutions we find the same "praescriptio annalis, 66 quae currit adversus actorem, si de homicida ei non constet “intra annum a caede facta, nec quenquam interea arguat et "accuset"

:

THESE appeals may be brought previous to an indictment : and if the appellee be acquitted thereon, he cannot be afterwards indicted for the same offence. In like manner as by the old Gothic constitution, if any offender gained a verdict in his favour, when prosecuted by the party injured, he was also understood to be acquitted of any crown prosecution for the same offence: but, on the contrary, if he made his peace with the king, still he might be prosecuted at the suit of the party. And so, with us, if a man be acquitted on an indict

[316]

ment of murder, or found guilty, and pardoned by the king, still he ought not (in strictness) to go at large, but be imprisoned or let to bail till the year and day be past, by virtue of the statute 3 Hen. VII. c. 1., in order to be forthcoming to answer any appeal for the same felony, not having as yet been punished for it, though, if he hath been found guilty of manslaughter on an indictment, and hath had the benefit of clergy, and suffered the judgment of the law, he cannot afterwards be appealed; for it is a maxim in law, that "nemo "bis punitur pro eodem delicto." Before this statute was made, it was not usual to indict a man for homicide within the time limited for appeals: which produced very great inconvenience, of which more hereafter".

If the appellee be acquitted, the appellor (by virtue of the statute of West. 2. 13 Edw. I. c. 12.) shall suffer one year's imprisonment, and pay a fine to the king, besides restitution of damages to the party for the imprisonment and infamy which he has sustained: and, if the appellor be incapable to make restitution, his abettors shall do it for him, and also be liable to imprisonment. This provision, as was foreseen by the author of Fleta, proved a great discouragement to appeals; so that thenceforward they ceased to be in com

mon use.

If the appellee be found guilty he shall suffer the same judgment, as if he had been convicted by indictment: but with this remarkable difference; that on an indictment, which is at the suit of the king, the king may pardon and remit the execution; on an appeal, which is at the suit of a private subject, to make an atonement for the private wrong, the king can no more pardon it, than he can remit the damages recovered in an action of battery'. In like manner as, while the weregild continued to be paid as a fine for homicide, it could not be remitted by the king's authority". And the antient usage was, so late as Henry the fourth's time, that all the relations of the slain should drag the appellee to the place of execution: a custom founded upon that savage spirit of fa

d See pag. 335.

el. 1. c. 34. § 48.

f 2 Hawk. P. C. c. 37. § 35.

ELL. Edm. § 3.

h

M 11 Hen. IV.12. 3 Inst. 131.

mily resentment, which prevailed universally through Europe after the irruption of the northern nations, and is peculiarly attended to in their several codes of law; and which prevails even now among the wild and untutored inhabitants of America: as if the finger of nature had pointed it out to mankind, in their rude and uncultivated state'. However, the punishment of the offender may be remitted and discharged by the concurrence of all parties interested; and as the king by his pardon may frustrate an indictment, so the appellant by his release may discharge an appeal *; “nam quilibet potest re- [ 317 ] "nunciare juri pro se introducto."

THESE are the several modes of prosecution instituted by the laws of England for the punishment of offences; of which that by indictment is the most general. I shall, therefore, confine my subsequent observations principally to this method of prosecution; remarking by the way the most material variations that may arise, from the method of proceeding by either information or appeal.