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T may be safely said, that there is no object to which mankind have devoted more intelligence and attention at all times, and in all countries, than the detection and prevention of crime; and few subjects are better calculated to excite a deep interest than the history of these efforts, whether we regard it in a general and philosophical light as part of the history of human laws and institutions, or follow the narratives of remarkable criminal investigations, with their mysteries, their curious revelations, their alternations of hope and fear, and their tragic incidents. It has been thought that in a paper directed to the curiosities of the criminal law, both ends may be served-that interesting incidents may be set forth; and that these may be so connected, as to throw an instructive light on the graver branch of the subject. We live in a country where the citizens in general are more or less occupied in the detection of crime, and the administration of justice, since no serious punishments can be awarded without the assent of the public represented by a jury. To us, then, all peculiarities and remarkable features connected with the administration of criminal justice, are not only doubly interesting, but useful, as imparting a knowledge of matters which bear on the ordinary business of life. In despotic countries, where the tribunals are secret, criminal inquiries have only the mysterious

No. 10.

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and terrible interest attending hidden calamities, to which all are subject; but here they are an affair in which even the wellconducted citizen is an interested actor, although he never looks upon it as within the bounds of probability that he himself should be a sufferer.

It is indeed the primary end and consummation of criminal law, as the means of extirpating crime, that it should strike only the wicked, and that they should not be too strong to resist it. The conflict with crime, to prevent it from getting the upper hand and flaring itself in the face of day, might not inaptly be compared to the mythological contests of the power of light and the power of darkness-sometimes the one, sometimes the other, victorious. It is one of the most consoling and delightful feelings connected with the progress of civilisation, that, if it may not entirely suppress crime, it drives it from its place of insolent superiority, and lays it vanquished at the feet of order. It is by concealment alone that it escapes in a country like this, not by defiance.

Times have been, when people must have felt with sorrow, as if the power of darkness were destined to prevail over the power of light, so audaciously did crime march forth in rank and pomp, and enthrone itself in high places. So must it have been when the princes and nobles of a land were the chief criminals, and walked about clothed in their guilt, defying opinion and law-as in the days of the Borgias, Joanna of Naples, and Mary Queen of Scots. In our own country at this day, if we hear of a person of high rank and social position committing murder or robbery, we conclude him to be mad. A law authority, in speaking of what juries will believe, mentions that it would require very strong evidence to make a jury convict the lord chancellor of robbery on Hounslow Heath; and if it were at the same time attempted to be proved, that he accidentally encountered some other great officer of state out on a similar design, no jury would believe it on any evidence that could be adduced. The deeper crimes, at all events, cannot brazen it out before the world, and be openly followed because their perpetrators are powerful. Perhaps there still linger, even in this country, some smaller offences which live as much by defiance as concealment; things which are matters of dispute such as, 'bearing' the market in stock-jobbing transactions, and risking the safety of the public by dangerous economy in railway management; but where so much evil on a larger scale has been remedied, all this will doubtless be put right in time. The greatest instance, indeed, in the present age of audacious crime, is American slavery; it is more like the old world than the present, being supreme injustice and wrong, openly perpetrated through the superior strength of the perpetrators.

Society may be protected from crime on principles so pernicious and dangerous, as to be only a shade better than the evils they prevent. If, instead of our open courts of justice, our jury, and

our habeas corpus-by which the imprisoned person can insist on being released or brought to trial-we were in the hands of a secret inquisition, worked by irresponsible men, with entire authority over our fate, we should perhaps choose rather to be in a state of anarchy, every man defending himself. Our jury-trial system is

a beautiful machine: we shall afterwards have to shew its vast superiority, as a method of reaching the truth, over inquisitorial and secret systems. But, beautiful and useful as it is, it acquired its perfection, like many other British institutions, by slow degrees. It arose out of customs in themselves barbarous and absurd, and was gradually adjusted to its present constitution by the progress of freedom and civilisation.

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Of old, the jury was little better than an ordeal, an appeal to something like chance, in which it was supposed that Providence would interpose on the side of truth. It was called a 'wager'-a name which it technically retains at the present day in being called 'wager of law.' It was the ordeal of taking the vote, as it were, of the community. One Saxon accused another of an offence. I throw the decision,' says the accused, on any twelve men of the hundred chosen by chance; if they do not pronounce me innocent, I submit to my fate.' Sometimes the twelve men were called 'compurgators,' because they warranted their faith along with the accused that he was innocent, or along with the accuser that his charge was just. They gradually came to form a sort of union of judges and witnesses. In the former capacity, they heard any evidence brought either by the accuser or the accused; in the latter, as being people of the place, and having local and personal knowledge, they decided according to the lights which they so possessed.

But the extremely imperfect state of the original institution, will perhaps be best appreciated by noticing that it was one of several ordeals or wagers. Another consisted in walking blindfold over a line of red-hot ploughshares. If the accused were innocent, a special Providence, it was thought, would guide his feet, and save him from the brand of guilt. Another ordeal was the touching of a dead body, which would, it was believed, bleed at the contact of the murderer's hand. Of this solemnly picturesque ordeal, we propose presently giving a fuller account. Another ordeal, an extremely natural one, was that of battle or single combat. Without the supposition of any special intervention, this was in rude ages a pretty effective method of solving the truth. The more barbarous the people, and the deeper their superstition, the more effectually would the guilty party be paralysed, and the innocent assured of victory. Thus, in the very laws of nature, the Deity combated for the right. In the words of Shakspeare:

"Thrice is he armed that hath his quarrel just;
And he but naked, though locked up in steel,
Whose conscience with injustice is corrupted.'

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It will suggest itself to every one, that this ordeal was the origin of the more modern practice of duelling, where an irreconcilable dispute is left to the chances of single combat. So lately as the year 1818, a person accused in the Court of King's Bench of murder, offered to clear himself by single combat, or wager of battle. This proposal occupied the serious consideration of the court, and occasioned a tough litigation. It was a signal specimen of the tenacity of English laws and customs. Everything, however absurd it may be, remains until it is specifically abolished by parliament; and in the English statute-book of the year 1819, there is literally an act abolishing trial by battle in all cases, civil and criminal. The case in question was that of Ashford v. Thornton, of which an account will be found in a curious volume, called An Argument for Construing largely the Right of an Appellee of Murder to insist on Trial by Battle, by E, A. Kendall, Esq., F.A.S. Mr Kendall supports the justice of trial by battle in the then existing state of the law. In fact, it was adduced by an ingenious lawyer, as a protection from another oppressive remnant of ancient jurisprudence; and, however strange it may seem, the propriety of allowing wager of battle in this instance was effectually vindicated. This requires some explanation.

It has always been the humane principle of our law, that a person to be tried must be tried once for all, and acquitted or convicted; he is not to be harassed and hunted by trial after trial. This rule was not a mere humane prejudice; it proceeded upon sound views of human nature. It is easy to see, that, were a determined chase against an accused person from court to court to be permitted, he would have no chance of getting fair play. If there is prejudice and vindictiveness against him at the beginning, it only increases with every acquittal; and it may safely be said, that if the public imbibed a prejudice against any individual, and could raise an indefinite number of prosecutions against him for any alleged crime, he would be sure to be brought down at last.

Now there happened to exist a form by which; when a public trial had taken place on a charge of murder, by presentment of a grand jury-if the accused were acquitted, an immediate relation of the slain person was entitled to prosecute by the form of Appeal. This procedure was, in reality, a relic of the old practice of feudal vengeance. It was devised for the purpose of substituting something like judicial form and deliberation for the immediate outburst of vindictive passions. In all appeals that had been known in comparatively late times, the relations had proceeded under strong excitement; and not only so, but the public had joined themcollecting subscriptions to aid the prosecutors, and hounding them on to vengeance. This repeated prosecution is particularly dangerous where the accusation involves some very odious or atrocious crime, because in such cases the public is apt to look at the accusation rather than the evidence, and to lash itself into a determination to rid the world of a monster. It was thought

that there was great risk of abstract justice being thus forgotten in the case of Burke and Hare, tried for the West Port murders in Edinburgh; and it was on account of what one of the counsel called the cry of the public for a victim,' that the first men in the profession of the law volunteered their services to conduct the defence. As two of the accused persons escaped, the feeling we have attempted to describe was powerfully shewn by several very zealous attempts made to renew the prosecution, by resuscitating obsolete methods of procedure; but they were defeated, much to the annoyance of the public. Had there existed methods of trying them over and over, no one, against whom such an atrocious charge as "burking' was plausibly made, would have >escaped.

Such were the circumstances in which the method of appeal was usually had recourse to. For instance, in a case that occurred in 1708, Christopher Slaughterford had paid his addresses to Jane Young, and they were supposed to be betrothed. Jane suddenly disappeared, and the last occasion on which she had been seen was in her lover's company. About a month afterwards, her body was found in a pond, with marks of violence on it. This was a general outline of circumstances quite sufficient to condemn Slaughterford in the public opinion; but there was no evidence to justify a conviction. Feeling that he was an object of painful suspicion, he surrendered himself to two justices of peace; but they found no case for committing, and dismissed the charge. Still harassed by the neighbours, he prayed to be put on trial, and obtained his desire. He was tried at the assizes of Kingston, and acquitted. This acquittal only served to rouse the vindictive feelings of the people. They subscribed money, and an appeal to the Queen's Bench was lodged in the name of Henry Young, the brother of Jane. It was conducted by ancient, cumbrous Latin forms; but, like other trials, it resolved itself into the verdict of a jury, and in this case the jury felt that they were selected, not to try, but to convict. They knew that they would greatly disappoint the public by an acquittal, and therefore they found the accused guilty. It was a peculiarity of the method of appeal, that the crown could not interpose to pardon the convicted person. His execution was the right and privilege of the appellant in pursuit of his vengeance. Hence Slaughterford was hanged at Guildford on the 9th of July 1709, the lawyers and judges well knowing that there was not sufficient evidence to convict him. The case of Ashford and Thornton, already alluded to, which occurred so lately as 1818, was of the same description. The accused was supposed to have murdered, under circumstances of peculiar atrocity, a young woman, with whom he had an intimacy. The evidence was imperfect, and he was acquitted; but the public became furious, and the brother of the deceased appealed." It was on this that the ingenious lawyers on the other side devised the plan of offering battle--an institution which had no more been abrogated than the appeal; and thus

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