Chapter 38
CHAPTER XXIII. PART II. 4. An appeal, in the sense wherein it is here used, does not signify any complaint to a superior court of an injustice done by an inferior one, which is the general use of the word, but here it means an original suit at the time of its first commencement. An appeal, therefore, when spoken of as a criminal prosecution, denotes an accusation by a private subject against another for some heinous crime, demanding punishment on account of the particular injury suffered rather than for the offense against the public. As this method of prosecution is still in force, I cannot omit to mention it. But as it is very little in use, on account of the great nicety required in conducting it,
I shall treat of it very briefly, referring the student for more particulars to other voluminous compilations. This private process for the punishment of public crimes had probably its original in those times when a private pecuniary satisfaction, called a weirgeld, was constantly paid to the party injured or his relations to expiate enormous offenses. This was a custom derived to us in common with other northern nations from our ancestors the ancient Germans, among whom, according to Tacitus,
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 for which they called an ariach. And thus we find in our Saxon laws, particularly those of King Athelstan, the several ware guilds for homicide established in progressive order, from the death of the chaereau or peasant up to that of the king himself.
And in the laws of King Henry I we have an account of what other offenses were then redeemable by wereguild and what were not so. As therefore, during the continuance of this custom, a process was certainly given for recovering the wereguild by the party to whom it was due, it seems that when these offenses by degrees grew no longer redeemable, the private process was still continued in order to ensure the infliction of punishment upon the offender, though the party
injured was allowed no pecuniary compensation for the offense. But though appeals were thus in the nature of prosecutions for some atrocious injury committed more immediately 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 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 upon such an appeal of treason, but the first was virtually abolished by the statutes 5. Edward III C. 9 and 25. Edward III C. 24 and the second expressly by statute 1. Henry 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 killing him either by 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 I 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 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, 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. Edward 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 the territory of the old common law, for in the Gothic constitutions we find the same praescriptio enalis, quae curit adversis actorem, si de omicida ea non constet intra anem acae de facta, ne quenquam enteria arguat et accuset. These appeals may be brought previous to any indictment, and if the appellee be acquitted thereon, he cannot be afterwards
indicted for the same offense. In like manner as by the old Gothic constitution, if any offender gained a verdict in his favor when prosecuted by the party injured, he was also understood to be acquitted of any crown prosecution for the same offense. 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 may,
by virtue of statute 3 Henry VII C.1, be prosecuted by 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 of the law that nimo bis puintor pro eodem dilecto. 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 on an action of battery. In like manner as, while the Weir Guild continued to be paid as a fine for homicide, it could not be remitted by the king's authority.
And the ancient usage was, so late as Henry IV's time, that all the relations of the slain should drag the appellee to the place of execution, a custom founded on that savage spirit of family resentment which prevailed universally throughout Europe after the eruption 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 quilibit potest renunciare iure, prose introducto. These are the several methods of prosecution instituted by the laws of England for the punishment of offenses, 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. End of Chapter XXIII, Part 2 Thank you.
