APPEAL, in the old Criminal Law of England, was a vindictive action at the suit of the party injured, in which suit the appellant. instead of merely seeking pecuniary compensation, as in civil ac tions, demanded the punishment of the criminal.
It differed from an indictment in some material points. Being a proceeding in stituted by a private person in respect of a wrong done to himself; the prerogative of the crown did not go so far as to sus pend the prosecution or to defeat it by a pardon. It seems to have been in reference to this peculiarity that the appeal is said to have been called by Chief Justice Holt " a noble birthright of the subject," inas much as it was the only mode by which the subject could insist upon the rigorous execution of justice without the risk of royal interposition on behalf of the offend ing party. Even a previous acquittal on an indictment for the same offence was no bar to the prosecution by the appel• lant ; nor was a previous conviction a bar, where the execution of the sentence had been prevented by a pardon. It was in the power of the appellant alone to relinquish the prosecution, either by re leasing his right of appeal or by accept ing a compromise.
Another remarkable feature of appeal was the mode of trial, which in cases of treason or capital felony was either by jury or by battle, at the election of the defendant.
Where the latter form of trial was adopted, the following was the order of proceeding :—The appellant formally charged the appellee with the offence : the latter denied his guilt, threw down his glove, and declared himself ready to prove his innocence by a personal com bat. The challenge was accepted by the appellant, unless he had some matter to allege, in what was termed a counterplea, showing that the defendant was not en titled to the privilege of battle, and both parties were then put to their oaths, in which the guilt of the accused was solemnly asserted on one side and denied on the other. A day was then appointed by the court for the combat, the defend ant was taken into custody, and the accuser was required to give security to appear at the time and place prefixed. On the day
of battle, the parties met in the presence of the judges, armed with certain pre scribed weapons, and each took a prelimi nary oath to the effect that he bad re sorted to no unfair means for securing the assistance of the devil in the approaching contest. If the defendant was vanquished, sentence was passed upon him, and he was forthwith hanged. But if he was victorious, or was able to persist in the combat till starlight, or if the appellant voluntarily yielded, and cried craven, then the defendant was acquitted of the charge, and the appellant was compelled to pay damages to the ac but was further subjected to heavy civil penalties and disabilities.
Some of the details of this singular mode of trial, as reported by contempo rary writers, are sufficiently ludicrous. Thus we are told that the combatants were allowed to be attended within the lists by counsel, and a surgeon with his ointments. In the reign of Charles I., Lord Rea, on a similar occasion, was in dulged with a seat and wine for refresh ment, and was farther permitted to avail himself of such valuable auxiliaries as nails, hasnmers, files, scissors, bodldn, needle and thread. (Rushworth's Collections, cited in Barrington's Observations, p. 328.) We also learn from the Close Rolle recently published, that parties under confinement preparatory to the trial were allowed to go out of custody for the pur pose of practising or taking lessons in fencing. (Mr. Hardy's Introduction, p. 185.) The whimsical combat between Homer and Peter, in the second part of Henry VI., has made the proceedings on an appeal familiar to the readers of Shakspere ; and the scene of a judicial duel upon a criminal accusation has been still more recently presented to us in the beautiful fictions of Sir Walter Scott.