433 



APPATUTOR. 



APPEAL. 



431 



disease, sensations and ideas were rendered preternaturally intense, or 

 the vivacity of ideas was so increased as to overpower actual impres- 

 sions, that these spectres should be seen in solitude, and heard in the 

 storm ; should dance before the eye, and whisper in the ear ; should 

 assume a menacing aspect in the dreams of the guilty, and come with 

 the cherub's smile in the visions of the innocent ; should be to the 

 maniac all that existed, and to the feverish and dying what most they 

 hoped or feared ! 



In regard to ghosts, it is observable that they were remarkably 

 abundant in this country during the interregnum after the civil war in 

 1649. " The melancholic tendency of the rigid Puritans of that 

 period ; their occupancy of old family seats, formerly the residence of 

 hospitality and good cheer, which in their hands became desolate and 

 gloomy ; and the dismal stories propagated by the discarded retainers 

 to the ancient establishments, ecclesiastical and civil, contributed alto- 

 gether to produce a natural horror unknown in other periods of our 

 history." It is well known that ghosts commonly appear in the same 

 dress they wore when living ; sometimes, indeed, they are clothed all 

 in white, but these are chiefly the " churchyard ghosts, who have no 

 particular business, but seem to appear pro bono ptMico, or to scare 

 drunken rustics from tumbling over their graves. Dragging chains is 

 not the fashion of English ghosts, chains and black vestments being 

 chiefly the accoutrements of foreign spectres, seen in arbitrary govern- 

 ments, dead or alive English spirits are free." Ghosts are commonly 

 pale, and often assume a misty or cloudy appearance, the spectral idea 

 of colour not quite equalling in intensity the vividness of an immediate 

 sensation. The phantoms seen by Nicolai were always of a paler 

 colour than real beings ; and when they began to diminish and dis- 

 appear, their colour became fainter and fainter, until at last they 

 appeared entirely white. 



We cannot dismiss the subject of apparitions without observing, 

 that the manner in which these phantoms have vanished before the 

 light of knowledge affords a striking illustration of the blessings which 

 descend even to the lowest of the people from the diffusion of the 

 sound principles of philosophy. The powerful and capricious spirits 

 which tilled " the heavens, the earth, and the waters above and under 

 the earth," added, in no inconsiderable measure, to the sum of human 

 Buffering. They were, in general, hideous in form, and malignant in 

 intention ; the number of the good small, that of the evil countless ; 

 and though of " soft and uncompounded essence/' they might have 

 come in what shape they chose, " dilated or condensed, bright or 

 obscure," yet they did assume "forms forbidden," such as " retire to 

 chaos, and with night commix ; " and then* visitations were much more 

 often accompanied with " blasts from hell " than " airs from heaven." 

 They produced powerful emotion, for the most part painful and of per- 

 nicious tendency. They afforded materials for the fiction of the poet, 

 and the pencil of the painter ; but the imagery of the one and the 

 figures of the other were distinguished for incongruity and deformity, 

 not for beauty and grace. Haunting the couch of sickness, in minds 

 debilitated by disease, they often chased reason from its throne, and 

 sometimes deprived the sufferer of life. The ignorant they terrified 

 with false fears, and they afforded no compensation in the uniformity 

 and efficacy with which they visited the guilty with remorse. As 

 agents in the administration of reward and punishment they were most 

 unjust. If they brought down vengeance on the criminal, it was not 

 for the commission of crime, but the neglect of punctilios ; and if, as 

 guardian angels, they hovered about the pillow of the dying, they were 

 not messengers of evil to the wicked, and ministers of grace to the 

 good ; but this " blessed troop, with faces bright like the sun, bearing 

 garlands, and promising eternal happiness," was as disposed to waft to 

 heaven the soul of the sinner as of the saint. By preoccupying the 

 mind, they took off the attention from the observation of nature, and 

 deprived it both of the power and of the. disposition to discover the 

 true solution of those physical, mental, and moral phenomena which 

 could not wholly escape notice, and in this lies the real malignity of 

 their influence. They incapacitated the mind for the perception of 

 truth, disposed it for the reception of the grossest delusions of credulity, 

 and prepared it for the admission of the most fallacious account of the 

 sources of calamity and suffering. In the hands of the priest and the 

 tyrant, they were potent to delude and enslave ; and they did their 

 work faithfully. The human mind will anticipate the future, and 

 must reflect upon the past. In the former, there will always be suffi- 

 cient to fear, and in the latter enough to regret, without the stimulus 

 of fictitious terror, or the imputation of imaginary guilt. As long as 

 the human frame can suffer, and is subject to death, the mind will 

 require whatever light philosophy can pour upon it to preserve it from 

 error, and whatever consolation religion can afford, to save it, at least, 

 from misery, if not from despair. In philosophy, there is' light, and in 

 religion, consolation ; and he is a friend to man who labours to secure 

 to him these inestimable blessings, free from the admixture of ignorance 

 and the alloy of superstition. 



( Westminster Review, No. ii. ; An Essay towards a Ther/ry of Apparitions, 

 by John Ferriar, M.D., 1813 ; Sketches of the Philosophy of Apparitions, 

 or an Attempt to trace inch Illation* to their Physical Causes, by Samuel 

 Hibbcrt, M.D., 1824.) 



APPA'RITOR, an officer employed in the ecclesiastical courts, " so 

 called," says Burn, " from that principal branch in their office, which 

 conaisteth in summoning persons to appear ;" as the canons direct that 



ARTS AND SCI. DIV. vol.. I. 



letters citatory are not to be sent by those who have obtained them, 

 nor by their messenger, but the judge shall send them by his own 

 faithful messenger. In 21 Hen. VIII. c. 5, as well as in the canons, 

 apparitors are hence called summoners, or summers. The above Act 

 restrains the number of apparitors kept by bishops, archdeacons, or 

 their vicars or officials, or other inferior ordinaries. 



Apparitor is a Roman word, and was used as a general term to 

 signify any person who was in attendance on public functionaries 

 (i's apparebant, whence the name) to execute their orders. The term 

 accordingly includes a great variety of officers in the Roman system. 

 Under the later Empire various magistrates and functionaries had 

 then- apparitors, whose duties and privileges are enumerated in the 

 Justinian Code, 12, tit. 52, &c. 



APPEAL (appeller, to accuse), in the old criminal law of England, 

 was a vindictive action at the suit of the party injured by some 

 heinous offence, in which the appellant, instead of merely seeking 

 pecuniary compensation as in civil actions, demanded the punishment 

 of the criminal. 



It differed from an indictment in some material points. Being a 

 proceeding instituted by a private person in respect of a wrong done to 

 himself, the prerogative of the crown was not permitted to suspend 

 the prosecution or to defeat it by a pardon. It seems to have been in 

 reference to this peculiarity that the appeal is said to have been called 

 by the celebrated Chief Justice Holt "a noble birthright of the sub- 

 ject," inasmuch as it was the only mode by which the subject could 

 insist upon the rigorous execution of criminal justice without the risk 

 of royal interposition on behalf of the offending party. Even a pre- 

 vious acquittal on an indictment for the same identical offence was no 

 bar to the prosecution by the appellant ; nor was a previous conviction 

 a bar, where the execution of the sentence had been intercepted by a 

 pardon. It was in the power of the appellant alone to relinquish the 

 prosecution, either by releasing his right of appeal or by accepting a 

 compromise. 



Another remarkable feature of an appeal was the mode of trial, which 

 in cases of treason or capital felony was either by jury or by battle, at 

 the election of the defendant. 



Where the latter form of trial was adopted, the following was the 

 order of proceeding. The appellant formally charged the appellee with 

 the offence : the latter distinctly denied his guilt, threw down his 

 glove, and declared himself ready to prove his innocence by a personal 

 combat. The challenge was accepted by the appellant, unless he had 

 some matter to allege, in what was termed a counterplea, showing that 

 the defendant was not entitled to the privilege of battle, and both parties 

 were then put to their oaths, in which the guilt of the accused was 

 solemnly asserted on one side and denied on the other. A day was 

 then appointed by the court for the combat, the defendant was 

 taken into custody, and the accuser was made to give security to 

 appear at the time and place prefixed. On the day of battle, the 

 parties met in the presence of the judges, armed with certain pre- 

 scribed weapons, and each took a preliminary oath, of which the effect 

 was that he had resorted to no unfair means for securing the assistance 

 of the devil in the approaching contest. If the defendant was van- 

 quished, sentence was passed upon him, and he was forthwith hanged. 

 But if he was victorious, or was able to persist in the combat till 

 starlight, or if the appellant voluntarily yielded, and cried craven, then 

 the defendant was acquitted of the charge, and the appellant was 

 not only compelled to pay damages to the accused, but was further 

 subjected to very heavy civil penalties and disabilities. 



Some of the details of this singular mode of trial, as reported by 

 contemporary writers, are sufficiently ludicrous. Thus we are told 

 that the combatants were allowed to be attended within the lists 

 by counsel, and a surgeon with his ointments. In the reign of 

 Charles I., Lord Rea, on a similar occasion, was indulged with a seat 

 and wine for refreshment, and was further permitted to avail himself 

 of such valuable auxiliaries as nails, hammers, files, scissors, bodkin, 

 needle, and thread. (See Rushworth's ' Collections," cited in Barring- 

 ton's ' Observations,' p. 328.) We also learn from the ' Close Rolls ' 

 recently published, that parties under confinement preparatory to the 

 trial were allowed to go out of custody for the purpose of practising or 

 taking lessons in fencing. (See Mr. Hardy's ' Introduction,' p. 185.) 

 The whimsical combat between Horner and Peter, in the ' Second Part 

 of Henry VI.,' has made the proceedings on an appeal familiar to the 

 readers of Shakspere ; and the scene of a judicial duel upon a criminal 

 accusation has been more recently presented to us in the beautiful 

 fictions of Sir Walter Seott. 



It appears probable that the trial by battle was introduced into our 

 jurisprudence from Normandy. The ' Grand Coustumier ' of that 

 country, and the ' Assizes of Jerusalem," furnish evidence of its early 

 existence. 



The courts of criminal jurisdiction in which it was admitted were 

 the King's Bench, the Court of Chivalry, and (in the earlier periods of 

 our legal history) the High Court of Parliament. 



In some cases the appellant was able to deprive the accused of his 

 choice of trial, and to submit the inquiry to a jury. Thus, if the 

 appellant was a female ; or under age ; or above the age of sixty ; or in 

 holy orders ; or was a peer of the realm ; or was expressly privileged 

 from the trial by battle by some charter of the king ; or laboured 

 under some material personal defect, as loss of sight or limb ; in all 



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