will always remain, to be done in reforming jurisprudence in communities that are growing in numbers and intelligence, and in which new emergencies constantly arise out of new formations of circumstances. With profound deference to the general systemof procedure in criminal cases as established in the courts of the United States, let a re form be suggested, which I do not remem ber as having been proposed by any Bar Association or writer upon legal topics. Most readers are familiar with the leading facts of the ancient judicial combats, or trials by battle. Schoolboys find illustra tions of them in such stories as the "Seven Champions of Christendom." Older and more critical students are interested in the description of this procedure in Montes quieu's " Spirit of Laws." It was absurd and irrational to the last degree. Communi ties that believed that the divine principle of justice could so arm a combatant weigh ing, let us say, a hundred pounds, and un skilled in the use of weapons; and so disarm his opponent, possessing twice his weight, and skilled in the sword; that the little man, if innocent, should slay the big man, his adversary and prosecutor, were no less ignorant than credulous. And yet this system had one virtue which modern criminal procedure lacks : every pros ecutor was obliged to appeal either in person or by substitute; every accused person was allowed the opportunity to establish his in nocence. And no distinction of persons was recognized. Beaumanoir tells us that "when a gentleman, as an accuser, had a ju dicial combat with a person of low birth, he was obliged to present himself on foot, simply with shield and baton; but if he came on horseback and armed with a sword like a gentleman, they took his horse and his arms from him, and stripping him to his shirt, they compelled him to fight in that condi tion with the lowborn man." Such a state of things would naturally cause any person not possessed of the thews
and muscles of a prize fighter, or not an expert fencer, to be extremely cautious as to bringing accusations against any subject of the realm. There was a certain beauty then in this irrational structure of law erected by our remote ancestors. " They builded better than they knew." How different from, and in one respect how superior to, the procedure adopted by the enlightened communities of the United States, by which any person can, by lodging a complaint with a police magis trate, procure the arrest of any other person within the jurisdiction of the court; and the consequent indictment of the person com plained of, unless the latter elects to unfold his defense, a step which counsel rarely advise; and can then, by absenting himself from the territory within the jurisdiction mentioned, forever prevent the accused per son from being acquitted of the charge. Bulwer wrote an amusing and satiric sketch of this state of affairs, entitled the "Law of Arrest." An English merchant has an agent or correspondent in Batavia, Java. He suspects that this person is cheat ing him; sets out for Batavia; confronts the wrongdoer in his office and taxes him with his villainy. The agent hears him with pa tience and civility, begs him to remain in the office a few moments while he procures vouchers from his residence, and in five minutes returns with a police officer, who serves a warrant upon the astonished mer chant. Taken before the magistrate, the merchant is informed by that dignitary that the offense charged against him is an aggra vated case of felony, robbery, etc., and that bail will be fixed at five thousand pounds, the merchant being a stranger in the city. The accused person is of course un able to obtain bail, the amount being exces sive, and the minds of his few acquaintances in Batavia being prejudiced against him by the rumors artfully set afoot by his agent in his disfavor. Not to prolong the history, he is confined in prison a fortnight, during which time the agent collects all collectable
