Quousque Domine! This blood cries for vengeance, and will not be appeased without a bloody sacrifice." And, in the same vindictive spirit, the dead bodies of Cromwell, Bradshaw, and Ireton were taken out of their coffins, drawn on sledges to Tyburn, and there hanged till sunset; they were then beheaded, and their heads set upon poles at the top of Westminster Hall.

The supposed "justice of retaliation" in cases of murder was a principle of the Roman Law, according to which the bodies of murderers were permitted to remain on the gibbet, after execution, "ut et conspectu deterreantur alii, et solatio sit cognatis interemptorum." In the reign of George II., and the year 1741, one Hall pleaded guilty to a charge of petty treason, for murdering his master, John Penney. The Rev. Dr Penney, Dean of Lichfield, brother of the deceased, applied to the Regency, the King being then at Hanover, that Hall might be hanged in chains. The Council at first demurred, on the ground of want of jurisdiction; but, upon Dr Penney sending for his friends, the Archbishop of Canterbury and the Duke of Newcastle, out of the Council-room, and satisfying them upon the point of jurisdiction, they obtained for him an order of the Regency for hanging Hall in chains, which recited that it had been granted "on the petition of the relations of the deceased." Anciently the relatives of a murdered person and the owners of stolen property were frequently solaced by this species of retaliation, as we may collect from Falstaff being ashamed of marching with his soldiers through Coventry, because a mad fellow told him that he had "unloaded all the gibbets, and pressed the dead bodies."

Each felony, when Sir M. Hale wrote, requires to be viewed with reference to distinctions, whether or not the Benefit of Clergy was taken away from the principal in the first degree? Whether from the principal in the second degree? Whether from an accessory before the fact? Whether from an accessory after the fact? These distinctions were perplexing, and often inconsistent,

and even ridiculous. The law of clergy is the exclusive subject of ten chapters in Sir M. Hale's work, besides meeting the eye in most of the other pages.

When it was ascertained that an offence was clergyable, a perversion of justice ensued, which nothing but long habituation could have restrained Sir M. Hale from reprobating. A clergyman was thereby exempt from capital punishment toties quoties, as often as from acquired habit, or otherwise, he repeated the same species of offence; the laity, provided they could read, were exempted only for a first offence; for a second, though of an entirely different nature, they were hanged. Among the laity, however, there was this distinction, peers and peeresses were discharged for their first fault without reading, or any punishment at all; commoners, if of the male sex and readers, were branded in the hand. Women commoners had no benefit of clergy. It occasionally happened in offences committed jointly by a man and a woman, that the law of Gavelkind was parodied

The woman to the bough,
The man to the plough.'

1 Kelyng reports :—“At the Lent Assizes for Winchester (18 Car. II.) the Clerk appointed by the Bishop to give clergy to the prisoners, being to give it to an old thief, I directed him to deal clearly with me, and not to say legit in case he could not read; and thereupon he delivered the book to him, and I perceived the prisoner never looked on the book at all; and yet the Bishop's Clerk, upon the demand of "legit? or non legit?' answered 'legit.' And, thereupon, I told him I doubted he was mistaken, and had the question again put to him; whereupon he answered again, something angrily, 'legit.' Then I bid the Clerk of Assize not to record it, and I told the parson that he was not the judge whether the culprit could read or no, but a ministerial officer to make a true report to the Court; and so I caused the prisoner to be brought near, and delivered him the book, when he confessed that he could not read. Whereupon I told the parson that he had unpreached more that day than he could preach up again in many days, and I fined him five marks." An instance of humanity is mentioned by Donne, of a culprit convicted of a non-clergyable offence prompting a convict for a clergyable one in reading his neck-verse. In the very curious collection of prolegomena to Coryat's Crudities are commendatory lines by Inigo Jones, whose fame was in building palaces and churches, and not the "lofty rhyme." The famous architect wrote,

Whoever on this book with scorn would look,
May he at sessions crave, and want his book.

Appeals in the time of Sir M. Hale, materially affected the practice of capital punishments. They were allowed in murder, larceny, rape, arson and mayhem, and were brought at the suit of the person supposed to be most aggrieved. A conviction upon them was attended with the like sanguinary consequences as a conviction upon indictment. Anciently the appellor had the burden or gratification of dragging the appellee to the scaffold; unless, however, the appellor were above the age of sixty, or had some other plea of exemption, the appellee might challenge him to fight with batons in the presence of the judges, which was called a Wager of Battle, a process of justice attended with much pageantry, and which is said, by Sir E. Coke, to be sanctioned by the precedent of David and Goliath ;1

Appeals long survived the time of Hale. After the remarkable trial, in the reign of William III., of Spencer Cowper (subsequently a judge) for drowning Mrs Stout, upon which he was acquitted, an appeal was brought, but was quashed for informality. In the reign of George II., a gaoler after being acquitted upon an indictment for murder, in exposing a prisoner to the small-pox, was tried again, and acquitted by a jury on an appeal. Late in the reign of George III., one Thornton had been acquitted of the murder of Mary Ashford; an appeal was brought, a plea of Wager of Battle was put in, and a life-guardsman's glove was, in the memory of many persons living, thrown into the centre of the Court of King's Bench, and the wager was adjudged by that court to be parcel of the law of England. However, the appellor being a stripling, declined risking a combat with an athletic antagonist."

1 Dyer mentions that, in Queen Elizabeth's time, about 4000 persons, which, it may be presumed, was then considered a large London mob, assembled to witness a trial by battle; and that they departed with a loud shout of "Vivat Regina !"

2 An early example of appeal occurs in one of the Paston Letters of the date of Edward IV. Caistor Castle (the ruins of which are a curiosity near Yarmouth) had been beseiged by the Duke of Norfolk, two of whose followers were killed by Paston and his servants, who defended the place. An indictment was brought, and objections taken to the verdict, wherefore the widows, by curious means, which are detailed, that were taken by the Duke of Norfolk's counsel, were induced to institute appeals. The widows appear to have been countermined by the Pastons.

It may appear surprising that Sir M. Hale did not impugn the law, whereby private prosecutors could insist on a second trial for life after an acquittal, and could exercise or withhold according to their caprice, or temper, or cupidity, the divine attribute and regal prerogative of mercy. But such is the force of judicial habit that we find the very distinguished chief justice Holt, in the reign of Queen Anne, declaring from the bench, "I wonder that any Englishman should brand an appeal with the name of an odious prosecution; I look at it as a true badge of English liberty."

ויי

A singular anomaly in our criminal jurisprudence arose out of the prevalence of capital punishments. The judges under the influence, it may be presumed, of the general sentiments of the community as well as their own feelings, evaded many sanguinary enactments by means of a rule of construction, termed in favorem vitæ; the law, or, in truth, the judges, being represented to have three predilections; viz. for life, liberty, and dower. In several parts of Sir M. Hale's treatise, the rule in favorem vitæ is applied as well where sound interpretation was doubtful as where it pointed a contrary way. Thus Sir M. Hale writes that "In favour of life great strictnesses have, at all times, been required in indictments," which he says had grown to be a "blemish" in the law, and a "disease," which he feared in time would "grow mortal." Notwithstanding, capital punishment is now almost entirely taken away, many rules of criminal law established in favorem vitæ hold their place, although founded, not in logic, but in mercy: and, thus, if that portion of the unwritten law, which consists of judicial constructions in favorem vitæ, were collected together, and the obsolete motive to which they were owing were unexplained, they would form a very unsightly monument of judicial dialectics.2

1 Blackstone details the law of appeal without any strictures; but amply embellishes it by the laws of the Saxons, Irish, Goths, and Turks. He says that it is pointed out by the "finger of nature."

2 A point respecting the breaking into a cupboard, whether it be burglary, was

The general aspect of the Law respecting capital punishments in Sir M. Hale's time being as here represented, it is to be noted as to this ancient structure's present ruinous condition, First, that not a dozen felonies are now punished with death, and none which are not characterised by personal violence, or danger to life;1 Secondly, Benefit of Clergy, that standing violation of the maxim lex omnibus una,2 was abolished in the reign of George IV. Thirdly, in the reign of George III. our jurisprudence ceased to be disgraced by Appeals and trials by Battle.

In reference to the "justice of retaliation" in cases of murder being pointed out by the Law of God, Sir M. Hale would appear to have entertained more enlightened views than in his History in his admirable tract on the Amendment of the Law"It is most certain, the specifical natural law which is given to birds is most wisely accommodated to them by the Divine Wisdom; but for a man to say, that because it is a most wise law, therefore it were fit to be used by beasts and fishes, were to distort and wrong the Divine Wisdom, by misapplying it to such a use and such animals, for whom it was never intended to be a rule or law. And though the specifical nature of Jews and Gentiles be the same, yet there ever were, and ever will be, great variety in the states, dispositions, and concerns of several people; so that the same law which would be a most wise, apt, and suitable constitution to one people, would be utterly improper and

left undecided by the judges. Foster, in his treatise, gives his opinion on the principle in favorem vitæ: now that there is no favor vitæ, the ground of his opinion fails, but not, probably, his opinion itself with lawyers, or they might thus have to unlearn a large portion of the Criminal Law.

1 Convictions for murder in England and Wales are, on an average, under twenty in the year. Capital punishment in these cases is sometimes commuted; and is seldom, if ever, inflicted for other felonies. Within a limited per centage the same number of murders is committed every year, though the crime is peculiarly one of accident and impulse.

2 A peer was once branded by mistake. Sir M. Hale writes:-"A great lawyer hath been much blamed for burning a peer on the hand, that confessed an indictment for manslaughter; and it was the only error of note that that person erred in to my observation."