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against an individual, yet it also was anciently permitted, that
any subject might appeal another subject of high treason,
either in the courts of common law (20), 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 battle awarded in the court of Chivalry, on
such an appeal of treason (x): but that in the first was 'vir:
tually abolished (y) by the statutes 5 Edw. 111. c. 9, and
25 Edw. III. c. 24, 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.
· 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 larceny, rape, and
arson. And for these, as well as for mayhem, the persons
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 kil-
ling him, by either murder or manslaughter. But this can-
not 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 (z). 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 course of the common law, at the time
of the killing of the ancestor. But this rule has three excep-
tions ; 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

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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 " præscriptio annalis, quæ currit adversus actorem, și de homicidia ei non constet intra annum a cæde facta, nec qenquam interea arguat et accuset (a)."

These appeals may be brought, previous to any 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 (6): 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 indictment 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 si nemo bis punitur pro codem 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 (c).

If the appellee be acquitted, the appellor, by virtue of the statute of Westm. 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 (d), proved a great discouragement to appeals ; so that thenceforward they ceased to be in common use. Lors, },

If the appellee be found guilty, he shall suffer the same judgment, as if he had been convicted by indictment: but

(a) Stiernh. de jure Goth. 1. 3, c. 4. (c) See page 335. u pros (b) Ibid. 1. 1, c. $. ; ;!

(d) L. 1, c. 34, S 46.: .,!

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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 on an action of battery (e). 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 (f). And the ancient 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 (g): a custom, founded upon that savage spirit of family 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 (h). 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 (i): nam quilibet potest renunciare juri pro se introducto(20) (21) (22). (e) 2 Hawk. P. C. 392.

(h) Robertson, Cha. V. i. 45. (f) LL. Edm. $ 3.

(i) 1 Hal. P. C. 9. (8) M. 11 Hen. IV. 12; 3 Inst. 131.

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(20) For any man may renounce a law introduced for his own benefit.

(21) Some appeals of late years have been commenced, but not prosecuted with effect; 5 Burr. 2643. They have probably been compromised, as the chief object of an appeal in all times was to compel the defendant to make a pecuniary compensation. For when the verdict in an appeal was given in favour of the appellant, he might insist upon what terms he pleased as the ransom of the defendant's life, or a commutation of the sentence. In an appeal, in which the defendant was found guilty of manslaughter, it was doubted whether the king could pardon the burning in the hand, and the defendant compounded with the appellant

for forty marks; 3 P. Wms. 453.- Ch.

(22) These appeals had become nearly obsolete, but the right still existing was claimed, and in part exercised, in the year 1818, by William Ashford, eldest brother and heir-at-law of Mary Ashford, who brought a writ of appeal against Abraham Thornton for the murder of his sister. Thornton had been tried at the Warwick Summer assizes, 1817, for the murder, and acquitted, though under circumstances of strong suspicion. The appellee, when called upon to plead, pleaded "not guilty, and that he was ready to defend himself by his body;". and taking his glove off, he threw it upon the floor of the court. A counterplea was afterwards delivered in by the appellavt, to

These are the several methods 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.

which there was a replication. A general demurrer followed, and joinder thereon. See a full detail of the proceedings in that singular case, in the report of it, under the name of Ashford v. Thornton, 1 B. & A. 405. It was held in that case, that, where in an appeal of death, the appellee wages his battle, the connterplea, to oust him of this mode of trial, must disclose such violent and strong presumptions of guilt, as to leave no possible doubt in the minds of the court; and, therefore, that a counterplea, which only stated strong circumstances of suspicion, was insufficient. It was also held, that the appellee may reply fresh matter, tending to shew his innocence, as, an alibi, and his former acquittal of the same of fence on an indictment. But it was doubted whether, when the counterplea is per se insufficient, or where the replication is a good answer to it, the court should give judgment that the appellee be allowed his wager of battle, or that he go without day. Therefore, the appellant praying no further judgment, the court, by consent of both parties, ordered that judgment should be stayed in the appeal, and that the appellee should be discharged. This case, the first of the kind that had occurred for more than half a century,

(see Bigby v. Kennedy, 5 Burr, 2643, 2 W. Bl. 713; Rer v. Taylor, 5 Burr. 2793; Smith v. Tuylor, id. ibid; the last cases upon the subject, where the mode of proceeding is detailed at large,) led to the total abolition of appeals of murder, as well as of treason, felony, or other offences, together with wagers of battle, by the passing of the statute 59 G. III. c. 46. The case, therefore, is quoted merely on account of the intense interest it excited at the time, and for the purpose of better introducing the repealing statute. That statute is entitled, An Act to abolish appeals of murder, felony, treason, or other offences, and wager of battle, or joining issue and trial by battle, in writs of right, and enacts, that from and after the passing thereof, all appeals of treason, murder, felony, or other offences, shall cease, determine, and become void; and that it shall not be lawful for any person or persons, at any time after the passing of this Act, to commence, take, or sue appeals of treason, murder, felony, or other offences, against any other person or persons whomsoever, but that all such appeals shall from henceforth be utterly abolished, any law, statute, or usage to the contrary in anywise notwithstanding.

CHAPTER XXIV.
OF PROCESS UPON AN INDICTMENT.

Process,

We are next in the fourth place, to inquire into the manner of issuing process, after indictment found, to bring in the accused to answer it. We have hitherto supposed the offender to be in custody before the finding of the indictment; in which case he is immediately, or as soon as convenience permits, to be arraigned thereon. But if he hath fled, or secretes himself, in capital cases; or hath not, in smaller misdemesnors, been bound over to appear at the assizes or sessions, still an indictment may be preferred against him in his absence; since, were he present, he could not be heard before the grand jury against it. And, if it be found, then process must issue to bring him into court; for the indictment cannot be tried, unless he personally appears: according to the rules of equity in all cases, and the express provision of statute 28 Edw. III. c. 3, in capital ones, that no man shall be put to death, without being brought to answer

by due process of law. (1). in misdemea. mors, is hyese. The proper process on an indictment for any petty misdetree facias dis- mesnor, or on a penal statute, is a writ of venire facias, which and capias ; in is in the nature of a summons to cause the party to appear. by capias only; And if by the return to such venire it appears, that the party in both if the accused does not hath lands in the county whereby he may be distrained, then

a distress infinite shall be issued from time to time till he appears. But if the sheriff returns that he hath no lands in his

bailiwic, then, upon his nonappearance, a writ of capias [*319] *shall issue, which commands the sheriff to take his body,

and have him at the next assizes ; and if he cannot be taken

me

capital crimes

appear, by out lawry.

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(1) Process is so denominated be cause it proceeds or issues forth in order to bring the defendant into court to answer the charge preferred against him, and signifies the writs or judicial means by which he is brought to an

swer. That proceeding which is called a warrant before the finding of the bill, is termed process when issued after the indictment has been found by the jury; i Chit. Cr. L. 388.

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