The Last Approver s Duel. view, true as this is, it is an unanswerable argument against the institution; for it ren ders litigation absolutely uncertain, and makes that not to be law for one man which is law for another. With the disappearance of the jury in civil cases, nine tenths of the will cases and the accident cases, and the like, would also disappear from our court calendars. Some sources of professional income would be dried up, it is true. But we must remember that the profession was made for the public, and not the public for the profession. Already in a majority of the States, and also in the Federal Courts, by legislation secured through the influence of the profes sion, questions of fact are now determined by the judge, either upon waiver of the jury by both parties, or unless one of the parties may demand a jury, in a certain restricted way. And, consequently, in many of the States juries are now seldom called. This change is but the entering wedge, and abolish ment is coming; and it will arrive when ever the profession demands it And if the
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profession does not secure the change, then it is responsible for the delay and uncertainty which the change would rid us of. In Gar land's case, Mr. Justice Miller truly said that for ages past the members of the profession have been powerful for good or evil, and mould public sentiment; and he gave his opinion that even the late Civil War might have been prevented by the influence of the lawyers in the States where it arose The truth is, I am very much afraid, that some lawyers are in favor of retaining the jury for the very reason that they know its abolition would inevitably shorten and diminish litigation, and make its result more certain; and, con sequently, also lessen legal business. But we know that it is hardly fifty years since wager of battel was lawful; and only about four times fifty since torture was a recognized method of arriving at facts, and sanctioned by the highest intellects, such as Bacon himself; and thus we may gather hope that the remaining mediaeval method in courts may soon depart, — the jury in civil cases.
THE LAST APPROVER'S DUEL. IN
his admirable work on " Trial by Combat," Mr. Neilson gives the fol lowing interesting account of what was prob ably the last Approver's Duel. It took place in the year 1455 or 1456, and at that time the Approver had already fallen into great disrepute, and a general abandonment of the system speedily followed. Whithorn, a thief, was imprisoned at Win chester. To save his life he made a series of appeals against honest men, some of whom were hanged. "And that fals and untrewe peler haddeof the kynge every day i. d. ob." So this false "peler" continued for almost three years drawing his three half-pence a day and making false appeals. At last one that he appealed said that he was false in
his appealing, and that he would prove this with his hand, "and spende hys lyfe and blode apone his fals body." The judge, ac cording to Gregory's report, laid down most peculiar law. Full courteously instructing the parties as to the conditions of an ap prover's duel, he explained that if the " peler" prevailed he would go back to prison, but would fare better than before, as he would be allowed twopence a day during the king's pleasure. The combatants, he said, must be clad all in white sheep's leather, both body, head, legs, feet, face, hands, and all. The staves, three feet long, were to be of green ash, " the barke beynge apon." At one end each staff was to have " a horne of yryn, i-made lyke unto a rammys horne, as
