were to purge themselves on oath from all guilty knowledge of the act and all participation in his flight, failing which they were themselves to suffer mulct in proportion to his offence. On the other hand, they were to receive at least a portion of the compensation for his death, or of such other sums as passed from hand to hand during the progress of an Anglo-Saxon suit.1 At a later stage the relatives took the place of the gyld, and paid the wehrgyld of the slain.2 And similar rules prevailed in ancient Ireland.3 Though all men were ordered to attach themselves to a hundred or tithing, so as to entitle themselves to such composition and to the ordeal; and in the time of Edward I. murder being a secret killing of a person unknown, the hundred was fined for it; yet these gilds, or bandships, formed by the English as a mutual support in all quarrels, robberies, and murders, were suppressed by a statute of 1377.6 But the majority of the towns in England are said to have obtained exemption from the murder fine sometime near the reign of Richard I., and most had obtained it in the reign of John. The city of London had obtained the exemption by a charter of Henry 1.7

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Confiscation of thing causing death-Deodands. Some of the ancients were not satisfied with classing the unfortunate persons who accidentally caused another's death among murderers, but they extended their condemnation to the inanimate stones, or unreasoning animals, which played any part in the same misfortune. To keep up the sacredness of life, the laws of Moses made it necessary that the ox, if it had gored a man to death, should be stoned to death.8

1 1 Kemble, Anglo-Sax. 252.

3 1 O'Curry, 201 4 Anct. Laws, Eng. 166. 6 1 Rich. II. c. 7. 7 1 Rym. Foed. p. 11.

2 1 Thorpe, 8, 24, 30. 5 Britt. i. C. 7.

8 Exod. xxi. 28, 29; Gen. ix. 6. The Jews made beasts accountable like moral agents, as to which BOLINGBROKE says he knows nothing more absurd than this, except a custom at Athens, that the weapons by which a murder was committed should be brought into court, as if they, too, were liable to punishment, and the statue which had killed a man by its fall was by a solemn sentence of that wise people, the Thasii, cast into the sea.-7 Bolingbroke, Works, 375. SELDEN and others, however, explain these laws as having no object other than inculcating greater respect for human life. In ancient Greece the judges at the Prytaneum passed sentence on the instrument of murder, when the perpetrator was unknown.-Smith,

And the laws of King Alfred provided, that, if at their common work one woodman should slay another unwittingly, the tree was to be given to the kindred of the dead man.

The gravity with which the courts in course of time discovered nice distinctions as to the respective culpability of inanimate things is now scarcely intelligible. Britton says, where a man was killed by a fall, the thing which caused the death was adjudged as a deodand to the king. Thus if a man fell from a vessel not at sea, and was killed, the vessel with all that was therein was a deodand; but if the vessel was under sail, the merchandize lying at the bottom was not deemed to be the cause of death, and so was not included in the deodand.1 If a cart and horse killed a man, it was said to be the thing that moved, that was deemed the deodand.2 Coke said the king consulted all the judges, and a distinction between a ship in salt and in fresh water was the result.3 Hale, without searching for any principle in the matter, stated that the instrument of death in misadventure was valued at a sum, because it belonged to the king, who usually gave away the profits in charity. He said, if a man was watering his horse and was drowned, the horse was a deodand; and if a man fell into the water and was carried under the mill-wheel, the wheel was a deodand, but not the mill. And probably for an equally sound reason, if a weight of earth fell on a worker in a mine, the weight of earth only, and not the whole mine, was forfeited. In one case, where a man fell from a cart under the wheel of a waggon as both met, two judges held, that the cart and the waggon, and all the horses and the loading of both carts also were deodands. And where a man in ringing the church bell became caught and hanged, the doubt was raised, but fortunately not settled, whether the bell did not thereby become forfeited.5

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The mode in which the law of deodands, so obviously

Dict. Epheta. And DRACO made a law, that any inanimate thing that caused the death of a human being should be cast out of the country.—Paus. 6, 11; Suid. Nicon.; Plut. Sol. PLATO, also, in his Laws directs that, if a beast of burden, or animal, cause the death of any one, it is to be slain and cast out beyond the borders; and so if any lifeless object falls on a man and kills him, it is to be cast away beyond the border.-Plato, De Leg. b. ix. 2 Year B. 30 & 31 Ed. I. App. 524. 5 1 Lev. 136.

1 Britt. b. i. cc. 2, 8. 3 3 Inst. 58.

4 1 Salk. 220.

founded in superstition, and so utterly indefensible (as Foster said 100 years ago), on any ground of reason, was reduced to an absurdity and extinguished almost without the aid of any act of parliament, is a notable instance of the power which courts of justice have too seldom exercised, when a law was one from which the common sense of the times revolted. In a case where a waggon and horses suddenly moved, and the driver fell off and was crushed to death by one of the fore wheels, the coroner's jury astutely found, that it was the wheel only which caused the death; and the Court of Queen's Bench held that of course it could not think of interfering with the solemn conclusion of the jury. And the wheel being of small value, it was worth nobody's while to claim the sum put on it. Another jury did the same thing;2 and this precedent of the wheel became at once a standard authority, and the lords of manors, who coveted these perquisites, ceased soon to push their righteous claims, being disgusted at seeing these so unscrupulously frittered away by the ingenious refinements of their modern judges. The law was, however, not formally abolished till 1846.3

Ancient remedy by appeal of murder-So late as the times of Edward I., if the king did not prosecute a murderer, the relatives might do so, in which case an appeal of murder was brought by the nearest in blood, or his widow, or his foster-child, or even one of his homage; but it was in the option of the defendant, called the appellee, to elect to defend himself by trial of battle, or to be tried by a jury, unless the prosecutor was a woman, or was under the age of fourteen, or above seventy, or in holy orders, or could produce a record to aid his case. A field was arranged, and the spectators were forbidden to stir or cry aloud, so as to disturb the battle, which was fought without armour, with head and hands and feet bare, each

2 Fost. Cr. L. 267.

1 R. v Rolfe, 2 Barn. 82, 111. 39 & 10 Vic. c. 62. BLACKSTONE erroneously attributes the origin of deodands to the blind days of popery, when these perquisites were used as means of expiation for the souls of such as were snatched away by sudden death. But the idea was much older than the pope, as is shown by the Jewish, and Greek, and Gothic legislation on the same subject. The idea may, no doubt, have been adroitly turned to account in the middle ages.

having a staff tipped with horn, and a target of four corners.1 If the defendant could defend himself until the stars could be seen in the firmament, he could then claim judgment in his favour, and the appellor was committed to prison. If, on the other hand, the defendant was vanquished, he was drawn and hanged, or killed by some painful death, his movable goods were forfeited to the king, and his heirs disinherited. The appeal was in many respects like an action, and could only be brought within a year and day, and the appellor had to find two pledges binding him to prosecute. This mode of prosecuting a murderer, even if the latter succeeded in battle, was not conclusive, for the crown could still prosecute him; in which case, as the crown could not fight, trial would require to be by jury.3

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The appeal of murder sprung from the blood avenger and the ancient practice of the Germans, of awarding a fine of cattle to the family of the murdered person, just as the ancient Brehon laws also had an eric fine of the same kind,5 and the ancient Swedes followed the common custom.6 A statute of Edward I. gave costs to the appellee, if the appellor failed or falsely sued, who also suffered a year's imprisonment besides. Holt, C. J., said this was a noble remedy and a true badge of English liberty. But Treby, C. J., and others, said it was an odious and spiteful prosecution, deserving no encouragement. The last instance of the remedy was in 1818, when the King's Bench was obliged to confess it was still the law of the land, that an appeal of murder might take place after indictment, trial, and acquittal, the party thereby seeking only pecuniary satisfaction, and taking the risk

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1 By Magna Charta a point was gained by settling, that a woman could not appeal for death of any but her husband.-Mag. Chart. c. 34.

2 Britt. b. i. c. 23, 24; Bract. 128-142; Fleta, 41-54.

3 It was one of the privileges of the citizens of London, conferred by charter, not to be obliged to wage battle.-Ancient Laws, p. 217; Liber Custum. 248, 252, 259. The same privilege was claimed by the citizens of Lincoln.-Kelham's Britt. p. 153. And the burgesses of Bury.-Cron. Joc. de Brak. p. 74. 4 Tac. Germ. c. 21. 84 (tr. Turner.) 462.

5 4 Bl. Com. 313.

61 Geijer, Hist. 7 13 Ed. I. c. 12; R. v Bambridge, 17 St. Tr.

8 R. v Towler, 12 Mod. 372; 1 L. Raym. 373.

of staking his life on the accusation.1 It was not abolished by statute till 1819.2

Murder now triable by indictment.-The complicated laws relating to blood avengers, sanctuaries, murder fines, and deodands, and trial by battle under an appeal of murder, have now all but disappeared, and ended in an ordinary trial of the accused party, when he has an opportunity, by witnesses and advocates, of establishing every kind of explanation or mitigation of his offence, and if possible of proving that he was not guilty at all.

The indictment and trial for murder.-The indictment for murder used formerly to describe with great minuteness the manner in which and the means by which the death was caused, and the exact part of the body attacked, the length, and breadth, and depth of the wound, and of the instrument used in wounding, and even the value of the weapon used. But now the essential parts of an indictment are reduced to the simple facts of time and place, and names of persons, and the allegation that A maliciously murdered B. This being the general allegation, all the details of the crime are merely matters of evidence, which are brought out at the time of the trial. The general rule at common law is, that a trial for murder must take place in the county within which the blow and the death occurred. If the death took place in a different county from that in which the blow was given, then the trial might take place in either county. And of late there are exceptions created by statute to the necessity of trial in the same county.5 Every indictment should describe the name of the person killed, for certainty should be exacted in all that concerns so serious an accusation; but if the

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2 59 Geo. III. c. 46.

1 Ashford v Thornton, 1 B. & Ald. 405. 3 "In any indictment for murder, or for being an accessory thereto, it is not now necessary to set forth the manner in which, or the means by which the death of the deceased was caused, but it shall be sufficient to charge, that the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased, and in any indictment against an accessory to the murder, it shall be sufficient to charge the principal with the murder, and then to charge the defendant as an accessory in the usual manner."-24 & 25 Vic. c. 100, § 6. 4 7 Geo. IV. c. 64, § 12. 5 By 2 & 3 Ed. VI. c. 24, § 2, (repealed), the trial was to be in the county where the death happened.