[83]. In the year 1818 in a private prosecution for murder (an appeal of murder) the accused demanded to be tried by battle, and the claim was allowed by the Court of King’s Bench. The prosecutor was not prepared to face the risks of this mode of litigation, and the accused was discharged: Ashford v. Thornton, 1 Barn. & Ald. 405. This case led to the abolition of appeals of felony and of trial by battle by the statute 59 Geo. III. c. 46.
[84]. Laws of King Alfred, 42. (Thorpe’s Ancient Laws and Institutes of England, I. 91): “We also command that he who knows his foe to be at home fight not before he demand justice of him. If he have such power that he can beset his foe and besiege him, let him keep him within for seven days, and attack him not, if he will remain within.... But if he have not sufficient power to besiege him, let him ride to the ealdorman, and beg aid of him. If he will not aid him, let him ride to the king before he fights.”
[85]. As late as the closing years of Henry III. it was found necessary to resort to special statutory enactments against a lawless recurrence to the older system. The statute of Marlborough (52 Hen. III. c. 1) recites that “At the time of a commotion late stirred up within this realm, and also since, many great men and divers other have disdained to accept justice from the King and his Court, like as they ought and were wont in time of the King’s noble progenitors, and also in his time, but took great revenges and distresses of their neighbours and of others, until they had amends and fines at their own pleasure.” The statute thereupon provides that “All persons, as well of high as of low estate, shall receive justice in the King’s Court, and none from henceforth shall take any such revenge or distress of his own authority without award of our Court.” Long after the strength of the law of England had succeeded in suppressing the practice, the right of private war continued to be recognised and regulated by law in the more feebly governed states of the Continent. An interesting account of the matter is given by M. Nys in his Origines du Droit International (1894), ch. 5. A reminiscence of the older doctrine and practice may be seen to this day in England in that “peace of our Lord the King” which every criminal is formally charged in his indictment with having broken. The King of England made good at an early date his monopoly of war, and all private war or violence was and is a violation of his peace. As to the King’s peace, see Sir F. Pollock’s Oxford Lectures, pp. 65–90; Select Essays in Anglo-American Legal History, II. pp. 403–417. An interesting picture of the relations between law and private force in the primitive community of Iceland is to be found in the Saga of Burnt Njal (Dasent’s translation).
[86]. Commentaries, III. 2.
[87]. Austin’s theory of the distinction is somewhat different from Blackstone’s, for he makes the distinction between public and private wrongs, and therefore between criminal and civil wrongs, turn not on the public or private nature of the right violated, but solely on the public or private nature of the proceeding taken in respect of its violation. “Where the wrong,” he says (p. 502), “is a civil injury, the sanction is enforced at the discretion of the party whose right has been violated. Where the wrong is a crime, the sanction is enforced at the discretion of the sovereign.” This theory, however, is exposed to the same objections as those which may be made to Blackstone’s, and it need not be separately considered.
[88]. Numbers, xxxv. 31.
[89]. Diogenes Laertius tells us that when Solon was asked how men might most effectually be restrained from committing injustice, he answered: “If those who are not injured feel as much indignation as those who are.”
[90]. Kant’s Rechtslehre (Hastie’s trans. p. 195). The like opinion is expressed in Woolsey’s Political Science, I. p. 334: “The theory that in punishing an evildoer the state renders to him his deserts, is the only one that seems to have a solid foundation.... It is fit and right that evil, physical or mental, suffering or shame, should be incurred by the wrongdoer.” See also Fry, Studies by the Way (The Theory of Punishment), pp. 43–71.
[91]. Deuteronomy, xix. 21.
[92]. Lilley, Right and Wrong, p. 128.