ow their
conviction. It was almost equally certain that criminals calculated
beforehand on the chance of impunity which the known prevalence of these
feelings afforded them. Wherever the sympathy of the public does not go
along with the law, it must, to a great extent, fail; and that the
terrible frequency of sanguinary punishment had failed in all its
objects, was proved by the fact that, in spite of the numerous
executions which took place, crimes increased in a still greater
proportion than the population. Under the reformed system, now first
inaugurated on an extensive scale, crimes have become rarer, detection
and punishment more certain--a combination of results which must be the
object equally of the law-giver and the philanthropist.

It is not quite foreign to this subject to relate that, a year or two
before, a mode of trial had been abolished which, though long disused,
by some curious oversight had still been allowed to remain on the
statute-book. In the feudal times either the prosecutor or the prisoner,
in cases of felony, had a right to claim that the cause should be
decided by "wager of battle;" but it was an ordeal which, with one
exception in the reign of George II., had not been mentioned for
centuries. In 1817, however, the relatives of a woman who had been
murdered, being dissatisfied with the acquittal of a man who had been
indicted as her murderer, sued out "an appeal of murder" against him, on
which he claimed to have the appeal decided by "wager of battle," and
threw down a glove on the floor of the court to make good his challenge.
The claim was protested against by the prosecutor; but Lord
Ellenborough, the Chief-justice, pronounced judgment that, "trial by
battle having been demanded, it was the legal and constitutional mode of
trial, and must be awarded. It was the duty of the judges to pronounce
the law as it was, and not as they might wish it to be."[188] He gave
sentence accordingly; and, had the two parties been of equal stature and
strength, the Judges of the Common Pleas might have been seen, in their
robes, presiding from sunrise till sunset over a combat to be fought, as
the law prescribed, with stout staves and leathern shields, till one
should cry "Craven," and yield up the field. Fortunately for them, the
alleged murderer was so superior in bodily strength to his adversary,
that the latter declined the contest. But the public advancement of the
claim for such a mode of decision was