The Customs of Old England Part 10

The fate of the accused depended on the miraculous turning of the psalter. If the direction was from left to right he was innocent; if from right to left, he was guilty. It would appear from the prayer, in which the priest invoked Divine revelation, that he held the book, and therefore it is natural to a.s.sume that, consciously or unconsciously, his opinion must have influenced its movement. The prayer ran:

"Omnipotent, everlasting G.o.d, who didst create all things from nothing, and didst form man from the clay of the earth, we pray Thee, as suppliants by the intercession of Mary the most holy Mother of G.o.d ...

that Thou do make trial for us concerning this matter about which we are uncertain; so that if so be that this man is guiltless, that book which we hold in our hands shall [in revolving] follow the ordinary course of the sun; but that if he be guilty that book shall move backwards."

There were other forms of procedure, in some of which, as in the trial of the cross and the touching of the bier, the supposed criminal was confronted with his victim. Ordeals were abolished in England in the year 1219; but the tradition did not die, and in the time of the Commonwealth, Hopkins, the notorious witchfinder, ridiculed in "Hudibras," employed the cold-water ordeal for the conviction of witches. "The suspected person," says Sir Walter Scott, "was wrapped in a sheet, having the great toes and thumbs tied together, and so dragged through a pond or river. If she sank, it was received in favour of the accused; but if the body floated (which must have occurred ten times for once, if it was placed with care on the surface of the water) the accused was condemned."

That the issue of the ordeal might be arranged appears to have been recognized even in the Middle Ages. Thus, fifty Englishmen, it is said, having been ordered by William Rufus to be tried by the hot iron, every one of them escaped unhurt. Thereupon the King announced that he would try them again by the judgment of his court and not abide by the so-called judgment of G.o.d, "which was made favourable or unfavourable at any man's pleasure." By the a.s.size of Northampton (1176) suspected persons, who had been acquitted by the water ordeal, were liable to banishment, though again acquitted by the "judgment of G.o.d."

Trial by battle, though obviously based on the same principle, was technically distinguished from the ordeal or judgment. The former appears to have arisen in the countries of the North, where it was known as the _holmgang_, the combats taking place on islands. Among the English this mode of settling differences was not much in favour either before or after the Norman Conquest; and the statutes of William I.

contain provisions whereby the natives were permitted to subst.i.tute the more familiar ordeal for the trial by battle.

"It was also decreed there that if a Frenchman summon an Englishman for perjury or murder, theft, homicide, or 'ran'--as the English call evident rape, which cannot be denied--the Englishman shall defend himself as he prefers, either through the ordeal of iron or through wager of battle. But if the Englishman be infirm, he shall find another who will do it for him. If one of them shall be vanquished he shall pay a fine of forty s.h.i.+llings to the King. If an Englishman summon a Frenchman, and be unwilling to prove his charge by judgment or by wager of battle, I will, nevertheless, that the Frenchman purge himself by an informal oath."

In subsequent reigns wager of battle was infinitely more common, and great encouragement was given to it by the martial race, whose ideas and habits were imposed on the subject population. The principles were established and the procedure regulated by the "a.s.sises de Jerusalem"

(1099), whose ordinances were received and recognized throughout Europe as a code of law and honour. For a general statement of conditions and effects we cannot do better than turn to the pages of the almost impeccable Gibbon.

"The trial by battle," he says, "was established in all criminal cases which affected the life, or limb, or honour, of any person; and in all civil transactions of or above the value of one mark of silver. It appears that in criminal cases the combat was the privilege of the accuser, who, except in the charge of treason, avenged his personal injury, or the death of those persons whom he had a right to represent; but wherever, from the nature of the charge, testimony could be obtained, it was necessary for him to produce witnesses of the fact. In civil causes the combat was not allowed as the means of establis.h.i.+ng the claim of the demandant; but he was obliged to produce witnesses, who had, or a.s.sumed to have, knowledge of the fact. The combat was then the privilege of the defendant, because he charged the witness with an attempt by perjury to take away his right. He came therefore to be in the same position as the appellant in criminal cases. It was not, then, as a mode of proof that the combat was received, nor as making negative evidence (according to the supposition of Montesquieu), but in every case the right to offer battle was founded on the right to pursue by arms the redress of an injury; and the judicial combat was fought on the same principle, and with the same spirit, as a private duel. Champions were only allowed to women, and to men maimed or past the age of sixty.

The consequence of a defeat was death to the person accused, or to the champion, or witness, as well as to the accuser himself; but in civil cases the demandant was punished with infamy and the loss of his suit, while his witness and champion suffered an ignominious death. In many cases it was the option of the judge to award or to refuse the combat; but two are specified in which it was the inevitable result of the challenge: if a faithful va.s.sal gave the lie to his compeer, who unjustly claimed any portion of their lord's demesnes; or if an unsuccessful suitor presumed to impeach the judgment and veracity of the court. He might impeach them, but the terms were severe and perilous: on the same day he successively fought _all_ the members of the tribunal, even those who had been absent; a single defeat was followed by death and infamy; and where none could hope for victory it is highly probable that none would adventure the trial."

Second only in importance to the "a.s.sises de Jerusalem" are the "Grand Coutumier de Normandie" and Beaumanoir's "Coutumes de Beauvoisis." As regards England, the forms of procedure are narrated by Bracton and Britton; and Selden in his treatise "De Duellis" cites a number of cases, both civil and criminal, in which resort was had to trial by battle.

When an appellor offered to do battle in person, it was his duty to say: "Sir, A complains to you of B, who is there, that he has a.s.sa.s.sinated C; and if he deny it A is ready to prove it with his person against the person of B, and to slay him or make him confess in the s.p.a.ce of an hour, and here is his pledge." If he offered to do battle by a champion, the formula was: "Sir, A complains to you of B, that he has a.s.sa.s.sinated C; and if he deny it A is ready to prove it if he shall not bring his champion on the day; and to slay, etc., and see here his pledge." The defendant replied in the following terms: "Sir, B denies and contradicts the a.s.sa.s.sination imputed to him by A, and is ready to defend with his person against A's person; and see here his pledge."

The combatants were to be armed according to their quality; and the arms and armour of knights, who should do battle in a case of homicide or a.s.sa.s.sination, are duly set forth. They had to fight on foot; their lances were to be of equal length, and their s.h.i.+elds half-a-foot higher than their persons, and pierced with two openings through which they could see their adversary. The arms had to be shown to the Court, and each champion was obliged to make oath on the Gospels that he had upon him neither writing, charm, nor any other arms than those shown to the Court. The combatants were then placed and fought. Near at hand stood the warders of the field, so that they might catch the words "I repent"

in the event of their being uttered. In that case they said to the other party, "You have done enough"; and he who had been vanquished was taken to the lord, by whose order he was trained to the gallows and hanged.

Similar treatment was paid to a combatant who had been slain, even if he had not said "I repent." The same procedure was observed where the champions were of inferior rank, save that their arms were not knightly.

If the case were not one of homicide or a.s.sa.s.sination, knights fought on horseback and in armour, with the same consequences to the vanquished.

His arms were forfeited; and, if the charge were treason, his heirs were deprived of their inheritance. Combatants of lower than knightly rank fought on foot with s.h.i.+elds and spears of equal length. If anyone not a knight struck a knight, he lost his right hand, "because of the honour and dignity which a knight has, and ought to have, over all other kinds of persons."

We may now refer to some typical examples. In the reign of Henry III.

Hamon le Stare was appealed for robbery by Walter de Bloweberme; and the record is specially interesting on account of a contemporary drawing of the fight and subsequent execution of the vanquished.

In a MS. of Merton College, Oxford, occurs a note of a case in the time of Edward I. R. de B. having demanded the advowson of a church against the Prior of Sens, the latter waged battle. On the appointed day his champion appeared, "and in the open field the duel was fought." The Prior's champion was struck down, and upon this the Prior's attorney came forward and surrendered the advowson. Accordingly, judgment was given that R. should recover seisin, and that the Prior should be in mercy. The same MS. contains a comment by the Judge (Saham) to the effect that if, after battle joined, at the second or third a.s.sault the tenant acknowledge the tenement to be the right of the demandant, and for that acknowledgment the demandant grant to the tenant that he shall hold of him for life, and that afterwards the tenement shall revert to him (the demandant), that acknowledgment is as stable as if a fine were levied in a writ of warranty of charter.

In Hil., 29 Edward III., a writ of right was brought by the Bishop of Salisbury against the Earl of Salisbury for the Castle of Salisbury.

Battle was waged; but on the accoutrements of the champions being examined by the Justices, a further day was a.s.signed on the ground that the coat of the Bishop's champion had been found to contain several rolls of prayers and charms. In this instance no battle took place, as a compromise was arranged, whereby the Bishop was to pay the Earl 1,500 marks, and judgment was given for the Bishop on the Earl making default.

With regard to charms, it may be remarked that there is copied on the fly-leaf of a MS. volume of reports, _temp._ Edward I. and II., in a contemporary hand, a charm comprising a list of the names of G.o.d, to be recited only in special cases, one of which was "par doute de plai." We may add that ecclesiastics not unfrequently retained a champion not for one occasion, but permanently, and he was in receipt of regular pay.

Richard de Swinfield, Bishop of Hereford, followed this course, giving a bond to Thomas de Bruges in consideration of the said Thomas performing the duties of champion. Similarly, by a deed dated London, April 28, 42 Henry III., one Henry de Fernbureg was engaged for the sum of 30 marks sterling to be always ready to fight as the Abbot of Glas...o...b..ry's champion in defence of the right which he had in the manors of Cranmore and Pucklechurch, against the Bishop of Bath and Wells, the Dean of Wells and other their champions whatsoever.

Naturally, however, the judicial combat was an inst.i.tution in which the court and the aristocracy had a greater interest than the church. It has been suggested, with much probability, that the office of the King's Champion originated from this custom. In any case, members of the royal house arranged, and even partic.i.p.ated in, duels of this order; and one of the best accounts of the practice has been preserved in a long and elaborate epistle addressed to Richard II. by Thomas Duke of Gloucester and Constable of England. The following are extracts:

"The king shall find the field for to fight in. And the lists shall be lx paces of length and xl paces of breadth in good manner; and the earth be firm, stable, and hard, and even, made without great stones, and the earth be plat; and the lists strongly barred round about and a gate in the east and another in the west with good and strong barriers of vij foot of height or more.... The day of battle the King shall be in a sege or scaffold there where they shall be.... When the appellant cometh to his journey, he shall come to the gate of the lists in the east in such manner as he will fight with his arms and weapons a.s.signed to him by the court, and there he shall abide till he be led in by the Constable, so that when he is comen to the said gate, the Constable and Marshal shall go thither. And the Constable shall ask him what man he is which is comen armed to the gate of the lists, and what name he hath, and for what cause he is comen. And the appellant shall answer, 'I am such a man, A. de K., the appellant, the which is comen to this journey, &c, for to do, &c.' And then the Constable shall open the visor of his ba.s.sinet, so that he may plainly see his visage, and if it be the same man that is the appellant, then shall he make open the gates of the lists, and shall make him enter with the same arms, points, victuals and other lawful necessaries upon him, and also his counsel with him, and then he shall lead him afore the King, and then to his tent, where he shall abide till the defendant be comen. In the same manner it shall be done of the defendant save that he shall enter in at the west gate of the lists.

"The Constable's clerk shall write and set in the register the coming and the hour of entering of the appellant, and how he entered the lists on foot; and also the harness of the appellant, and how he is armed, and with how many weapons he entered the lists, and what victuals and other lawful necessaries he bringeth with him. In the same manner shall be done to the defendant.... And the appellant and defendant shall be searched by the Constable and Marshal of their points of arms, otherwise called weapons, that they be vowable without any manner of deceit; and if they be other than reason asketh they shall be taken away, for reason, good faith, and law of arms will suffer no guile nor deceit in so great a deed. And it is to wit that the appellant and defendant may be armed upon their bodies as surely as they will."

Previously it had been said: "And the Constable shall make take heed that none other before or after the appellant or defendant bring more weapons nor victuals other than were a.s.signed by the court." The "points" a.s.signed by the court were the long sword, the short sword, and dagger--no other knife great or small or any other "instrument or engine of point." The combatants had each to swear on the ma.s.s-book that they were thus armed, and that they had no stone of virtue nor herb of virtue nor charm nor any other enchantment. Also they were made to take each other by the hand to do all their true power and intent on each other, and make their opponent either yield or give up the ghost. All but two lieutenants of the Constable and two knights were ordered to quit the lists.

The Constable sat in front of the King as his "Vicar general" and regulated the combat. "The Constable schall say w^t y^e voice as foloweth, 'Lessiez lez aler'; that is to say, 'lat them goo and reste awhile'; 'lessiez lez aler & faire leur devoir depdieu'; that is to say, 'lat them goo and doo ther devour i G.o.ddes name.' And this seyde eche man schal depte fro bothe pties soo that they may incountre & doo that them semeth best."

From that time forth neither appellant nor defendant might eat or drink without leave and licence of the King; and it was the Constable's duty, in case the King commanded the parties to separate, rest, or abide, for whatever reason, to see that this took place in such a way that they should be in the same "estate and degree" in case the King should order the resumption of the combat. He was also to have good "hearkening and sight," if either spoke to other of yielding or otherwise, for to him and to none other belonged the witness and the record of the words from that time forth.

In this battle, supposed to be on account of treason, he that was convicted and discomfited was disarmed in the lists by command of the Constable, and a corner of the lists broken "in reprove of him." Through this he was drawn out by horse through the lists from the place where he was disarmed to the place of justice, where he was beheaded or hanged--"the which thing appertaineth to the Marshal."

"And if it happen so that the King would take the quarrel in his hand and make them accorded without more fighting, then the Constable taking the one party and the Marshal the other shall lead them before the King, and he showing them his will, the said Constable and Marshal shall lead them to the one part of the lists with all their points and armour as they are found, and having when the King took the quarrel in his hand as is said. And so they shall be led out of the gate of the lists evenly, so that the one go not before the other by no way and nothing, for sen he hath taken the quarrel in his hand, it should be dishonest that either of the parties should have more diswors.h.i.+p than the other.

Wherefore it hath been said by many ancient men that he that goeth first out of the lists hath the diswors.h.i.+p and this as well in cause of treason as in other cause whatsoever it be."

It cannot be repeated too often or too clearly understood that the duel was not exclusively a chivalrous custom, confined to those of high station. Like the ordeal, it was prescribed, as a mode of juridical determination, for burgesses and others, though, as we have shown, equality of rank was postulated in the combatants no less than equality of "points." By way of ill.u.s.tration we may turn to the annals of Leicester, where wager of battle was enforced on the townsmen for the settlement of their disputes. We have seen that knights undertook to bring matters to a conclusion within the s.p.a.ce of one hour. Honest burgesses, less expert in the use of lethal weapons, and either less courageous or less callous in taking human life, appear to have shown extremely poor "sport" in their involuntary matches. At Leicester a combat is recorded to have commenced at 6 a.m. and continued till 3 p.m., when it was terminated through one of the parties falling into a pit. The character of the affair and the behaviour of the champions occasioned a great scandal; and the townsmen, in order to prevent a repet.i.tion of the incident, engaged to pay the Earl their lord three pence for each house, on condition that the "twenty-four jurors who were in Leicester from ancient times should from that time forward discuss and decide all pleas they might have among themselves."

In London and other chartered towns parties to a quarrel could not be made to fight against their will. The rule was that wager of battle did not lie between two freemen without the consent of both; and a case is on record in which one citizen, having been charged with felony and robbery, offered to defend himself with his body. The appellor declined dereignment by battle, and so it was decided that the accused should be tried by the Middle Law, with eighteen compurgators.

The duel was employed for the determination not only of criminal, but of civil causes, and in such controversies the demandant, whatever his condition, might not engage in the combat himself, but was represented by a champion, who occupied the position of a witness. The claim would be made in some such form as the following:

"I demand against B. one hide of land in such a vill (naming it) as my right and inheritance, of which my father (or grandfather, as it might be) was seised in his demesne as of fee, in the time of Henry I. (or, after the first coronation of the King, as it might be), and from which he received produce to the value of fifty s.h.i.+llings at least (as in corn, hay, and other produce); and this I am ready to prove by my freeman John, or if anything should happen to him, by him or him"--several might be named, though only one might wage battle--"who saw this."

Or the form might conclude: "And this I am ready to prove by my freeman John, whom his father on his death-bed enjoined, by the faith a son owes his father, that if he ever heard of any plea being moved concerning this land, he would dereign (or prove) this, as what his father had seen or heard."

The tenant might then defend himself in person or by deputy at his option. The demandant's champion was not to be a person hired for reward, and if he was convicted of receiving money or vanquished in a duel on the point of right, not only did the demandant lose his suit, but the champion forfeited his _legem terrae_--that is, he could never act in a similar capacity again--and was fined sixty s.h.i.+llings _nomine recreantisae_--for cowardice. In the reign of Henry II. these arrangements were modified, and the tenant might put himself on the a.s.sise. "The a.s.sise," says Glanville, "is a royal benefit conferred on the nation by the prince in his clemency, by the advice of his n.o.bles, as an expedient whereby the lives and interests of his subjects might be preserved, and their property and rights enjoyed, without being any longer obliged to submit to the doubtful chance of the duel. After this the calamity of a violent death, which sometimes happened to champions, might be avoided, as well as the perpetual infamy and disgrace attendant on the vanquished, when he had p.r.o.nounced the _infestum et inverecundum verb.u.m_." The horrible word was "creaunt" (or craven).

JUDICIAL

CHAPTER XII

OUTLAWRY

Many of our ancient ballads and lyrics, such as the cycle of Robin Hood and that exquisite love-poem "The Nut-Brown Maid," are based on the custom of outlawry. One of the most charming of these early English productions is "The Tale of Gamelyn," in which we meet with the following pa.s.sage alluding to the ban:

"Tho were his bonde-men sory and nothing glad, When Gamelyn her lord wolues heed was cried and maad; And sente out of his men, wher they might him fynde, For to seke Gamelyn vnder woode-lynde, To telle him tydinges, how the wynd was went, And al his good reued, and alle his men schent."

The expression "wolf's head" was an old Saxon formula of outlawry, and appears to have originated from the circ.u.mstance that a price was set on the fugitive equivalent to that at which a wolf's head was estimated.

One of the laws of Edward the Confessor deals with the case of a person who has fled justice, and p.r.o.nounces: "Si postea repertus fuerit et teneri possit, vivus regi reddatur, vel caput ipsius si se defenderit; lupinum enim caput geret a die utlagacionis sue, quod ab Anglis _wlvesheved_ nominatur. Et hec sententia communis est de omnibus utlagis."

Already we are in possession of the salient facts as regards outlawry.

As a rule the outlaw was not banished, as citizens were ostracized at Athens, to secure the State from dangerous rivalries. In other words, they were commonly not men of character and distinction, but just the reverse--persons whose conduct was so dest.i.tute of honour as to degrade them, in the eyes of the community, to the level of the worst sort of vermin. And they were treated accordingly. They were held to be unfit to exist as an integral part of the body politic, and either destroyed or, as an alternative, constrained to abjure the realm. The head and front of their offence was not any act of which they might have been guilty.

The direct, and, it may be said, the sole, cause of their proscription was refusal to submit to the laws, to accept justice at the hands of their country-men.

This comes out quite distinctly in the legislative enactments of our remote ancestors. Kemble in his "Saxons in England" quotes the following law of King Edgar:

"That a thief be pursued, if necessary. If there be present need, let it be told the hundred men, and let them afterwards make it known to the t.i.thing men and let them all go forth whither G.o.d may direct them to their end; let them all do justice on the thief as it was formerly Eadmund's law. And be the _ceapgild_ (i.e., market value) paid to him that owns the chattel; and be the rest divided in two, half to the hundred, half to the lord except men; and let the lord take possession of the men.

"And if any neglect this and deny the judgment of the hundred, and the same be afterwards proved against him, let him pay to the hundred 30 pence; and the second time 60 pence; half to the hundred, half to the lord. If he do it a third time, let him pay 1/2 lb; the 4th time let him lose all that he hath and be an outlaw, unless the King will allow him to remain in the land....

"We have also ordained that if the hundred pursue a track into another hundred, notice be given to the hundred elder, and that he go with them.

If he fail to do so let him pay 30 to the King....