Sivut kuvina

bis Dominum Deum tuum."n Upon this authority, though the canons themselves were of no validity in England, it was [345] thought proper (as had been done in Denmark above a century before") to disuse and abolish this trial entirely in our courts of justice, by an act of Parliament in 3 Hen. III., according to Sir Edward Coke,P or, rather, by an order of the king in council.q

the cors


II. Another species of purgation, somewhat similar to the II. Trial by former, but probably sprung from a presumptuous abuse of ned, or morrevelation in the ages of dark superstition, was the corsned, or sel of exemorsel of execration; being a piece of cheese or bread, of about an ounce in weight, which was consecrated with a form of exorcism; desiring of the Almighty that it might cause convulsions and paleness, and find no passage, if the man was really guilty; but might turn to health and nourishment, if he was innocent; as the water of jealousy among the Jewss was, by God's special appointment, to cause the belly to swell, and the thigh to rot, if the woman was guilty of adultery. This corsned was then given to the suspected person, who, at the same time, also received the holy sacrament,t if, indeed, the corsned was not, as some have suspected, the sacramental bread itself; till the subsequent invention of transubstantiation preserved it from profane uses with a more profound respect than formerly. Our historians assure us that Godwin, earl of Kent, in the reign of King Edward the Confessor, abjuring the death of the king's brother, at last appealed to his corsned, "per buccellam deglutiendam abjuravit," which stuck in his throat and killed him. This custom has been long since gradually abol- Now abolished, though the remembrance of it still subsists in certain phrases of abjuration retained among the common people.w


However, we can not but remark, that though in European [346] countries this custom most probably arose from an abuse of revealed religion, yet credulity and superstition will, in all ages and in all climates, produce the same or similar effects. And, therefore, we shall not be surprised to find that in the kingdom of Pegu there still subsists a trial by the corsned, very similar to that of our ancestors, only substituting raw rice instead of bread. And in the kingdom of Monomotapa they have a method of deciding lawsuits equally whimsical and uncertain. The witness for the plaintiff chews the bark of a tree endued with an emetic quality, which, being sufficiently masticated, is

" Decret., part 2, caus. 2, qu. 5, dist. 7; Decretal., lib. 3, tit. 50, c. 9, & Gloss., ibid.

• Mod. Univ. Hist., xxxii., 105. P 9 Rep., 32.

4 1 Rym., Fœd., 228; Spelm., Gloss., 326; 2 Pryn. Rec., Append., 20; Seld., Eadm., fol. 48.

Spel., Gl., 439.

Numb., ch. v.

t LL. Canut., c. 6.



w As, "I will take the sacrament upon it; may this morsel be my last," and the like.

Mod. Univ. Hist., vii., 129.

then infused in water, which is given the defendant to drink. If his stomach rejects it, he is condemned; if it stays with him, he is absolved, unless the plaintiff will drink some of the same water; and if it stays with him also, the suit is left undetermined.y

These two antiquated methods of trial were principally in use among our Saxon ancestors. The next, which still remains in force, though very rarely in use, owes its introduction among us to the princes of the Norman line. And that is,


III. Trial by III. The trial by battel, duel, or single combat ;' which was another species of presumptuous appeals to Providence, under an expectation that Heaven would unquestionably give the victory to the innocent or injured party. The nature of this trial in cases of civil injury, upon issue joined in a writ of right, was fully discussed in the preceding book; to which I have only to add, that the trial by battel may be demanded at the election of the appellee, in either an appeal or an approvement; and that it is carried on with equal solemnity as that on a writ of right; but with this difference, that there each party might hire a champion, but here they must fight in their proper [347] persons. And, therefore, if the appellant or approver be a woman, a priest, an infant, or of the age of sixty, or lame, or blind, he or she may counterplead and refuse the wager of battel, and compel the appellee to put himself upon the country. Also, peers of the realm, bringing an appeal, shall not be challenged to wage battel, on account of the dignity of their persons; nor the citizens of London, by special charter, because fighting seems foreign to their education and employment. So, likewise, if the crime be notorious; as, if the thief be taken with the mainor, or the murderer in the room with a bloody knife, the appellant may refuse the tender of battel from the appellee; for it is unreasonable that an innocent man should stake his life against one who is already half convicted.

The form and manner of waging battel upon appeals are much the same as upon a writ of right; only the oaths of the two combatants are vastly more striking and solemn. The appellee, when appealed of felony, pleads not guilty, and throws down his glove, and declares he will defend the same by his body; the appellant takes up the glove, and replies that he is ready to make good the appeal, body for body. And thereupon the appellee, taking the book in his right hand, and in his left the right hand of his antagonist, swears to this effect: "Hoc audi, homo, quem per manum teneo," &c. "Hear this, O

y Mod. Univ. Hist., xv., 464.
See vol. iii., page 337.

a 2 Hawk., P. C., 427.

b Flet. 1. 1, c. 34; 2 Hawk., P. C. 426.

(1) This species of trial is now entire-
ly abolished by the stat. 59 Geo. III., 314.

c. 46.

See 1 B. & Ald., 405; ante, p

man, whom I hold by the hand, who callest thyself John by the name of baptism, that I, who call myself Thomas by the name of baptism, did not feloniously murder thy father, William by name, nor am any way guilty of the said felony. So help me God, and the saints; and this I will defend against thee by my body, as this court shall award." To which the appellant replies, holding the Bible and his antagonist's hand in the same manner as the other: "Hear this, O man, whom I hold by the hand, who callest thyself Thomas by the name of baptism, that thou art perjured; and therefore perjured, because that thou feloniously didst murder my father, William by name. So help me God, and the saints; and this I will [348] prove against thee by my body, as this court shall award."c The battel is then to be fought with the same weapons, viz., batons, the same solemnity, and the same oath against amulets and sorcery, that are used in the civil combat; and if the appellee be so far vanquished that he can not or will not fight any longer, he shall be adjudged to be hanged immediately; and then, as well as if he be killed in battel, Providence is deemed to have determined in favor of the truth, and his blood shall be attainted. But if he kills the appellant, or can maintain the fight from sunrising till the stars appear in the evening, he shall be acquitted. So, also, if the appellant becomes recreant, and pronounces the horrible word of craven, he shall lose his liberam legem, and become infamous; and the appellee shall recover his damages, and also be forever quit, not only of the appeal, but of all indictments, likewise, for the same of fense.**

IV. The fourth method of trial used in criminal cases is that IV. Trial by High Court by the peers of Great Britain, in the Court of Parliament, or of Parlia the court of the lord high steward, when a peer is capitally ment, or indicted; for, in case of an appeal, a peer shall be tried by lord high jury.d Of this enough has been said in a former chapter;e to steward.

court of the

There is a striking resemblance be- relations were permitted to prosecute tween this process and that of the court in that court), and that the prisoner was of Areopagus, at Athens, for murder, the cause of his death; the prisoner, wherein the prosecutor and prisoner that he was innocent of the charge were both sworn in the most solemn against him. (Pott., Antiq., b. 1, c. 19.) manner; the prosecutor, that he was re- d 9 Rep., 30; 2 Inst., 49. lated to the deceased (for none but near e See page 259.

(2) The last time that the trial by battel was awarded in this country, was in the case of Lord Rae and Mr. Ramsay, in the 7 Car. I. The king, by his commission, appointed a constable of England to preside at the trial, who proclaimed a day for the duel, on which the combatauts were to appear with a spear, a long sword, a short sword, and

a dagger; but the combat was prorogued
to a further day, before which the king
revoked the commission. See an ac-
count of the proceedings, 11 Harg., St.
Tr., 124.-[CHRISTIAN.] See, also, ante,
312, et seq.; vol. iii., p. 337; 1 B. &
Ald., 405.

(3) The nobility are tried by their

* Trial by battel is abolished in New York.-(2 R. S., 409, § 4.)

which I shall now only add that, in the method and regulations of its proceedings, it differs little from the trial per patriam, or by jury; except that no special verdict can be given in the trial of a peer ;f because the lords of Parliament, or the lord high steward (if the trial be had in his court), are judges [349] sufficiently competent of the law that may arise from the fact;

and except, also, that the peers need not all agree in their verdict; but the greater number, consisting of twelve at the least, will conclude and bind the minority.g

V. Trial by jury.

V. The trial by jury, or the country, per patriam, is also that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the Great Charter:h "nullus liber homo capiatur, vel imprisonetur, aut exulet, aut aliquo alio modo destruatur, nisi per legale judicium parium suorum, vel per legem terræ."

The antiquity and excellence of this trial for the settling of civil property has before been explained at large. And it will hold much stronger in criminal cases; since, in the times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by the crown, in suits between the king and the subject, than in disputes between one individual and another, to settle the metes and boundaries of private property. Our law has, therefore, wisely placed this strong and two-fold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the crown. It was necessary, for preserving the admirable balance of our constitution, to vest the executive power of the laws in the prince; and yet this power might be dangerous and destructive to that very constitution, if exerted without check or control, by justices of oyer and terminer occasionally named by the crown; who might then, as in France or Turkey, imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English law have, with excellent forecast, contrived that no man should be called to answer to the king for any capital crime, unless upon the preparatory accusation of twelve or more of his fellow-subjects, the grand jury; and that the truth of every accusation, [350] whether preferred in the shape of indictment, information, or appeal, should afterward be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen and superior to all suspicion. So that the liberties of England

Advantages of it.

f Hat., 116.

Kelynge, 56; stat. 7 Will. III., c. 3, 11; Foster, 247.

peers for treason and felony, and mis-
prision thereof; but in all other crimin-
al prosecutions they are tried like com-

h 9 Hen. III., c. 29.
iSee vol. iii., page 379.

moners, by a jury. 3 Inst., 30; see vol. i., p. 401. [CHITTY.]

can not but subsist so long as this palladium remains sacred and inviolate, not only from all open attacks (which none will be so hardy as to make), but also from all secret machinations, which may sap and undermine it, by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And, however convenient these may appear at first (as, doubtless, all arbitrary powers, well executed, are the most convenient), yet, let it be again remembered, that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most

momentous concern.

What was said of juries in general, and the trial thereby, in civil cases, will greatly shorten our present remarks with regard to the trial of criminal suits; indictments, informations, and appeals; which trial I shall consider in the same method that I did the former, by following the order and course of the proceedings themselves, as the most clear and perspicuous way of treating it.

When, therefore, a prisoner on his arraignment has pleaded Jury pronot guilty, and for his trial hath put himself upon the country, which country the jury are, the sheriff of the county must return a panel of jurors, liberos et legales homines, de vicineto, that is, freeholders, without just exception, and of the visne or neighborhood, which is interpreted to be of the county where the fact is committed.j* If the proceedings are before the Court

J2 Hal., P. C., 264;

(4) As to jury process in general, see 1 Chit., Crim. L., 2d ed.. 506 to 517.[CHITTY.]

(5) Now, by the stat. 6 Geo. IV., c. 50, s. 13, the jury are to come from the body of the county, and the want of hundredors is no longer a cause of challenge.

The qualifications of petty jurors on the trial are also clearly pointed out by the 6 Geo. IV., c. 50, s. 1. See ante, vol. iii., p. 356; also the exemptions, ibid.

By the 6 Geo. IV., c. 50, s. 15, the

2 Hawk., P. C., 403.

panel must be returned annexed to the
venire facias.-[CHITTY.]

The 7 Geo. IV., c. 64, s. 21, enacts, that no judgment after verdict, upon any indictment or information for any felony or misdemeanor, shall be stayed or reversed by reason that the jury process has been awarded to a wrong officer upon an insufficient suggestion, nor for any misnomer or misdescription of the officer returning such process, or of any of the jurors, nor because any person has served upon the jury who has not been returned as a juror by the sheriff or other officer.

* In New York, jurors for the trial of all issues of fact, criminal as well as civil, are obtained in the following manner: A list is prepared by certain town officers in each town in the state, of persons in their judgment qualified to serve as jurors, by making a selection from the assessment rolls of taxable inhabitants, of males between the ages of twenty-one and sixty, who are assessed for personal property belonging to them in their own right to the amount of $250, or who have a freehold estate in real property in the county, belonging to them in their own right,

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