in the boiling fluid, brought forth a stone suspended therein by a
cord. (This was the Single Ordeal, and it became the Triple when the
plunge was up to the elbow.) The arm was done up in bandages not to
be removed till after three days; if the scald had healed the man was
innocent, if it still festered he was guilty. In the ordeal by hot
iron, a piece of red-hot metal was carried a distance of nine feet;
it was then dropped and the hand was bandaged as already set forth. A
knight had to thrust his fist into a glowing gauntlet; another form
was a walk with naked feet over a sequence of red-hot ploughshares. We
have a picturesque circumstantial and absolutely untrustworthy monkish
account of how Emma, mother of Edward the Confessor, being suspected
of an all too intimate acquaintance with Alwyn, Bishop of Winchester,
underwent this trial. She took nine steps for herself and five for the
Bishop, fixing her eyes the while on heaven. "When shall we reach these
ploughshares?" queried she. How agreeable a surprise to find her little
promenade already past and done with! No need to swathe _her_ feet, the
red-hot iron had marked them not at all!
The last mode was the _Corsnæd_, or Cursed Morsel--a piece of
barley-bread (or cheese), one ounce in weight. This "Creature of
Sanctified Bread" was adjured, in terms terrible enough to make the
sinner quake, to stick in the guilty throat, and cause the guilty jaws
to be clenched and locked up. If in spite of all it went softly down,
who dared to refuse belief in the man's innocence? It was chiefly
for the clergy, and from every point of view must have been the most
agreeable of the three, though a legend as untrustworthy as that of
Emma ascribes to it the death of Earl Godwin, father of Harold. As he
sat at meat with Edward the Confessor, the king brought up an old
scandal about his brother's murder, "May God cause this morsel to choke
me," passionately exclaimed the earl, "if I am guilty of the crime!"
Edward blessed the bread; Godwin made an effort to swallow, choked and
died. "Take away that dog," said the monarch in what would seem an
outburst of savage glee. This was on April 15th, 1053, thirteen years
before the Conquest. Godwin in truth died of a fit. It soon was the
policy of the monkish chroniclers to write down the national party of
which he had been the head, a fact which explains the fable were it
worth serious examination. More interesting to note the survival of
the rite in the still current rustic formula, "May this bit choke me
if I lie!" If the ordeal proved a man guilty, the punishment was fine,
death or outlawry, but even if he escaped, the Assize of Clarendon
(1164) ordered that, in certain cases, he should abjure the realm. By
that time compurgation was gone; in 1215 the Lateran Council issued a
solemn decree against Trial by Ordeal; and soon after it had vanished
from English law. There is a curious reference to it in the State
Trials as late as 1679. John Govan, a Jesuit priest, was indicted in
that year at the Old Bailey for an alleged share in the Popish Plot.
With some hesitation he claimed the right of Trial by Ordeal as an
ecclesiastical privilege of a thousand years' standing, but Scroggs and
North peremptorily refused to listen to his plea. "We have no such law
now," said the latter. Sir James Stephen assures us that the formula,
"By God and by my country," wherein, till 1827, a prisoner must answer
the question how he would be tried, sets forth a memory of it.
Of the customs akin to Trial by Ordeal only one can find mention here.
It was held that if the murderer touched, nay, even approached, the
body of his victim, the wounds gushed forth blood, thus in _Richard the
Third_, "dead Henry's wounds" are seen "to open their congealed mouths
and bleed afresh" as Gloucester draws near the bier. And according to
one of the picturesque legends of English history, when Richard the
Lion-Heart encountered at Fontevrault his father's body, the blood
gushed from the nostrils of the dead king, a proceeding which, as
Richard's offence was at the worst but unkindness, showed a somewhat
excessive sensibility on the part of the royal clay. The oddest and
latest case of all is from Scotland. In 1688 Philip Stanfield was
tried for parricide at Edinburgh; one count of the indictment stated
how his father's body had bled at his sacrilegious touch. The Lord
Advocate, Sir George Mackenzie of Rosehaugh, the "Bluidy Mackenzie"
of covenanting legend and tradition, conducted the prosecution, and
philosophic and cultured jurist as he was, he yet dwelt with much
emphasis on the portentous sign. There was no lack of more satisfactory
if more commonplace evidence, and young Stanfield assuredly merited the
doom in the end meted out to him.
WAGER OF BATTLE
Judicial combat is a fascinating yet perplexing subject, having many
side-issues whereupon the writer must sternly refrain. The case
of David and Goliath was gravely urged (A.D. 867) as a
precedent to Pope Nicholas I., and by him disdainfully put aside. The
thing itself was unknown in Roman law, though the old legend of the
Horatii and Curatii was part of its lore. But it was of the essence
of chivalry, and the duel and the prize-fight were its legitimate
offspring. "Where the hazel grew," so Mr George Nelson, our chief
modern authority, picturesquely defines its region, but our attention
here must be limited to England. That it was _not_ with us before
the Conquest moves Bishop Stubbs to something of the scholar's mild
amazement. The Normans, it seems clear, brought it with them from
their continental home. A native accused of a serious crime by one of
the invaders was tried by ordeal of battle, but a Norman had choice of
the oath as well, and it was also used to decide which of the claimants
should have a disputed piece of land. After the legal reforms of Henry
II., it became an alternative proceeding in a limited class of actions.
These were the Writ of Right (the most solemn method of trying title
to land), accusations of murder, and treason. It had place only in
appeals, in actions, that is to say, brought not in the king's name,
but by an interested subject here called the Appellor, against whom
the accused or Appellee might offer to prove his innocence by his
body. The Appellor must accept the challenge unless he were maimed by
age or wound. Likewise he could "Oust the Battle" (_i.e._ prove this
mode of trial improper) if the accused were caught red-handed. The
parties exchanged gloves, and gave pledges or wads (_vadiare bellum_);
whence came Wager of Battle, afterwards the technical term for the
whole process. In civil cases, if the litigants came to terms, the
judge exacted a fine, called the Concord, while he who fought and lost
must pay the mulct of Recusancy. In criminal matters he who resisted
not till the stars shone forth was branded as Recreant or Craven and
was forthwith strung up, and all his goods were declared forfeit. The
Charters of Exemption purchased from overlord or king show how hateful
the system was to the old English citizen. Henry I. enacted for a
consideration that no Londoner should do battle, and in due course the
men of Winchester, Lincoln, and Northampton obtained the like privilege.
The story of Leicester is worth the telling. In the time of Henry I.
Earl Robert of Mellant ruled the town. It chanced that two burghers,
Nicholas and Jeffrey, waged battle on a plea of land. For nine long
hours they mauled each other with varying fortune, when one of them
took to flight, and staggered, all unwitting, on the edge of a pit.
The other saw his danger, and remembered that they twain were kinsmen.
"'Ware o' the pit," he shouted; "turn back, lest thou fall therein."
The spectators so lustily roared their approval, that the Earl heard it
in his castle, and he, after due enquiry, granted that in time coming
twenty-four jurors of Leicester should determine all civic disputes.
One strange product of Trial by Combat was the Approver: a rascal who
turned king's evidence, and fought with his late companions. Sometimes
he accused other malefactors, and if he came off victor in five
combats he was released, and banished the country. This system fell
into gross abuse, for the Approver, greedy of freedom or hush-money,
appealed honest men right and left. In the chronicle of William Gregory
the Skinner (1456) we have an account of a duel fought by one Thomas
Whitehorne, a criminal, caught in the New Forest, and lodged in prison
at Winchester, where he remained for about three years, fighting ever
and anon. "And that fals and untrewe peler (= Appelar) hadde of the
Kynge every day 1d. ob." At last a proposed victim retorted the lie
in his throat, and said that "he wold prove hyt with hys handys and
spende hys lyfe and blode a-pone hys fals body." Then the judge "fulle
curtesly informed this sympylle man" that "he and the peler moste be
clothyed all in whyte schepys leter." Also each must have a stave of
green ash, three feet long, the point thereof "a horne of yryn i-made
lyke unto a rammy's horne;" and if these ash-plants broke, then they
"moste fight with hyr handys, fystys, naylys, tethe, fete, and leggys."
Moreover, they must strive fasting on the "moste sory and wrechyd
greene about the town;" but "Huyt ys to schamfulle to reherse alle
the condycyons of thys foule conflycte." And we must follow Gregory's
precept rather than his example.
The Appellee, asking for inquiry as to his character, was reported
"a fyscher and tayler of crafte," and therewith the "trewyste laborer
and the moste gentellyte." The peler, with brazen insolence, offered
_his_ character for inspection. There was much dubiety as to where and
how he had lived when at large, but "Hange uppe Thome Whythorne" was
the response of every reference he tendered. At last the day came. The
Appellee, as became an innocent man, told his beads, and prayed long
and earnestly, and wept full sore, and all present prayed for and with
him. The "fals peler" scoffed thereat. "Thou fals trayter," yelled
he; "why arte thou soo longe in fals bytter beleve?" The defendant's
sole answer was so lusty a thwack that his staff flew all to pieces.
Thereupon the peler's stave was taken away from _him_; "ande thenn they
wente togedyr by the neckys," so using teeth and fist, "that the lethyr
of clothing and fleshe was alle to rente in many placys of hyr bodys."
It fared ill at first with the "meke innocent." His opponent had him
down on the ground, and near choked the life out of him. But presently
the meek one got up on his knees, and (the combat not being under
Queensberry rules), "toke that fals peler by the nose with hys tethe,
and put hys thombe in hys yee, that the peler cryde owte ande prayde
hym of marcy, for he was fals unto God and unto hym." The peler's
subsequent record is of the briefest, but, one is thankful to add, of
the most edifying description. "And thenn he was confessyd and hanggyd,
of whose soule God ha' marcy." Amen. "_Victus est et susp_," so for
epitaph wrote the official scribe against his name. And the exchequer
parchments knew him and his "_1d. ob. per diem_" no more.
The Champion, now but the shadow of a name, was a nobler offshoot of
the system. Originally a witness, he was finally indispensable in civil
cases wherein--for a legal reason not here to be discussed--the parties
themselves must not engage. He was the proper advocate for churchmen,
for women, and for the Crown; and his last appearance for royalty was
in 1820, at the coronation of George IV. The Dymocks have held the
manor of Scrivelsby in Lincolnshire for centuries by this tenure, and
possibly their representative claimed a part in the pageant on the
two subsequent occasions, but to have him ride up Westminster Hall in
full armour and clang his gauntlet on the floor (as he did of old)
would have savoured too much of Drury Lane pantomime for the taste of
a cynical age. The Champion's dress and bearing were minutely ordered.
His head (_e.g._) was shaven, but whether this was to give no hold to
his foe, or to fulfil some old superstition, is still in debate among
the learned. In the end he was usually a hireling, which fact may
very well have accentuated the absurdity of the system. At any rate,
towards the close of the thirteenth century it was only kept alive by
the approvers. Then Chivalry came with its Treason Duel, and by the
time of Richard II. the Chivalry Court was in full swing. Its forms,
mainly imported, were after this wise. Upon the accusation and the
exchange of gloves, time and place were assigned for the duel, and here
the lists were set and staked. There were two gates, and hard by each
a pavilion--one eastward for the appellant, and the other westward for
the defendant. To the south was the judge's seat; and right and left
were benches for the high-born, while the commons were made free of
the unenclosed field. Near the judge an altar was decked with relics;
and not far off there stood a gibbet and a scaffold. Men-at-arms were
stationed between the palisades. There were heralds in gay tabards, a
priest in full canonicals stood at the altar--but it were wearisome to
enumerate all the officials.
The trial was held not less than forty days after the challenge; and
the time being come, the heralds demanded silence; and the appellant
was summoned three times by voice and by sound of trumpet. As he
marched forward he was addressed by the Constable, "Who art thou, and
wherefore comest thou armed to the door of these lists?" His answer
given, he was taken to his pavilion, and afterwards was made to swear
on the altar that his cause was just. The other did in like fashion.
Then the pavilions were replaced by chairs whereon the combatants might
take an occasional rest. Napkins holding a loaf and a bottle of water
were hung on opposite ends of the lists. The marshal cried three times
"_Laissez les aller_," and the pair went at it. Far better death than
defeat. If either yielded, the marshal cried "Hoo," to declare the
combat at an end. Then the wretch was taken to the scaffold on which
his shield was hung reversed, his sword was broken, and his spurs
hacked from his heels. He was now taken to the church where a mass for
the dead was sung over him, and at last he was haled to the gibbet
where the hangman claimed his prey.
This is the form of judicial combat that caught the fancy of our great
writers. In Chaucer's _Knight's Tale_ there is the elaborate set to
between Palamon and Arcite. In Shakespeare's _Richard II._ there is
the fiasco of Norfolk and Hereford. In _Lear_ we have the fight to
the death between Edmund and Edgar, and "every schoolboy knows" The
Templar's duel in _Ivanhoe_.
Chivalry passed, yet not the half-forgotten wager of battle. A claim so
to determine a civil dispute was made in 1571, to the great perplexity
of the lawyers. Elaborate preparations were made, but the case was
settled in other fashion. Under James I. bills were introduced into
Parliament to abolish it, but they fell through, and in 1774, at the
beginning of the North American troubles, when it was proposed to
punish the New Englanders by depriving them of the appeal of murder,
Dunning, afterwards Lord Ashburton, described it as that great pillar
of the Constitution. Burke concurred, and the motion was lost. Perhaps
they have it yet in the States, at least Dr Cooper, in editing, in
1857, the statutes at large of South Carolina, treats Wager of Battle
as an existing fact. In England the end came in dramatic fashion. In
May 1817 Mary Ashford--a young woman of Langley in Warwickshire, was
found drowned under suspicious circumstances. A certain Abram Thornton
was suspected of the murder; he was tried and acquitted, but there
was much evidence against him, and he had played so ill a part in a
horrid though vulgar tragedy that the relatives of the dead girl cast
about to carry the matter further. Now, an old act provided that no
acquittal by jury should bar an appeal of murder, so William Ashford,
Mary's brother, appealed Thornton in the Court of King's Bench. He
was attached, and when called upon pleaded "Not guilty, and am ready
to defend the same by my body." He then threw down his glove on the
floor of the Court. It was a curious turn; for no doubt men thought
that he would put himself upon the country, and stand a second trial by
jury. There was much legal argument (set forth at great length in the
reports of the time), for the prosecuting counsel tried hard to "oust
his battle," but to no purpose, and in the end Thornton was set free.
In 1819, two years after the drowning of Mary Ashford, the Appeal of
Murder Act (59 Geo. III. c. 46) abolished the last remnant of Wager of
Battle.
THE PRESS-GANG
Smollett, Galt, Marryatt, and the other naval novelists, not those
well-nigh forgotten Dry-as-dusts whose works encumber the back shelves
of our law libraries, are the authorities for the press-gang of popular
imagination. The sea-port invaded, the house surrounded at dead of
night by man-o'-war's men with stout cudgels, and by naval officers
with cutlasses; the able-bodied mariner knocked down _first_ and _then_
bid stand in the king's name; the official shilling thrust into his
reluctant palm before he is hauled off in irons--who has not devoured
with joy this wild romance, with its tang of the sea, its humour and
rough frolic, the daring and exciting prelude to much more daring and
more exciting achievements? But how far can we trust these entertaining
authors? And what was the legal status of the press-gang?
We are like to get nearest the truth in a law case with its official
documents and sifted evidence and considered decision. The trial of
one Alexander Broadfoot for the murder of one Calahan is the best
available. In the April of 1774 H.M.S. _Mortar_ lay at anchor off
Bristol. The captain held a warrant of impressment, but he could
delegate his authority only to a commissioned officer, whose name
must be inserted in his order; and the only one aboard was the
lieutenant. On the 25th the ship's boat was sent down Channel, _with
neither captain nor lieutenant_ to look for men. She had no luck till
evening, when she came across the _Bremen Factor_, a homeward bound
merchantman, still some leagues from port, but beating thitherward up
Channel. The man-o'-war's men having boarded her, were proceeding to
search the hold, when they were confronted by Broadfoot, the boatswain,
armed to the teeth. He demanded what they came for. "For you and
your comrades," was the plain and honest, though no doubt irritating
answer. "Keep back, I have a blunderbuss loaded with swan shot," said
Broadfoot, levelling his piece. The press-gang stopped. "Where is your
lieutenant?" he went on. (Evidently this boatswain knew a little of the
law.) "He is not far off," was the evasive answer, showing that the
man's acts and words had impressed his assailants. Did Broadfoot grasp
the fact that they were trespassers? At any rate, he let fly, killed
Calahan on the spot, and wounded two others. He was tried at Bristol,
and acquitted of the capital charge--for the action of the man-o'-war's
men was plainly irregular; but he was found guilty of manslaughter, for
that he had used more force than was necessary. Another case is that of
Robert Goldswain, a small freeholder at Marlow, in Bucks. In the March
of 1778 he was a bargeman on the Thames, engaged in carrying timber to
the king's yard; with a protection order from the Navy Board to him by
name so long as he should continue in that service. But these were
troubled times, the French had just declared for the revolted American
colonists and our war-ships were frightfully undermanned; so, on the
16th of March, the Admiralty fixed the next night for a general press
on the Thames, with direction to seize--despite protection orders--on
all sailors and watermen whatsoever, saving and excepting merchant
skippers and men exempted by special acts. Goldswain was in the net,
and was passed from ship to ship down to the Nore, where his captors
were overtaken by an order from the Court requiring a return to a writ
of Habeas Corpus issued on his behalf. Counsel's argument for the
Admiralty--that the device of first issuing protection orders to lure
sea and watering men from their lurking-places, and then pouncing on
them under the authority of a general press, was excellent--did not
commend itself to the Court, which, in the battle over poor Goldswain's
body, suspected some antagonism between the Admiralty and the Naval
Board. In the end my lords gave way, and Marlow received again her
ravished freeholder.
During the strain and stress of our eighteenth century war-making,
when we had every need of seamen to man our battle-ships, and could
not afford the market price for them, there was much impressment, and
through frequent appeals to the courts the law on the subject was
exactly determined. It was a prerogative of the Crown, a remnant of
larger rights which at one time took in soldiers and ships, or their
equivalent in cash (Hampden's famous trial scarce needs mention); it
could not be justified (it was allowed) by reason, but only by public
necessity. On command of the king all sea and river-faring men were
liable to naval service in time of war. The right to impress was
founded on immemorial usage, for, though given by no statute, it was
recognised by many. It was so held on the authority of a case in Queen
Elizabeth's reign: the sole customary exception was a ferryman; but
merchant captains were in practice likewise allowed to go free. Only
in Charles I.'s reign, when all the Crown prerogatives were jealously
overhauled, was there any serious questioning of its legality, but it
was exercised by the Commonwealth as well as by the Monarchy. Given
up in fact some fifty years since, it has never been so in law. You
find in Horner's _Crown Practice_ (1844) a form of _Habeas Corpus ad
subjiciendum_ for impressed men, with the comment that it is little
needed now.
Of the enormous number of commissions and statutes relating to
impressment, an example taken here and there must suffice. The acts
express amazement and virtuous indignation at mariners unwilling to
serve. One (_temp._ Henry VII.) sets forth that such as are chosen,
and have received their wages, shall, if they give leg-bail, be
amerced in double, and go to prison for a year--when they are caught.
Another (_temp._ Philip and Mary) reproves the Thames watermen who,
in pressing time, "do willingly and obstinately withdraw, hide, and
convey themselves into secret places and outcovers; and, after the
said time of pressing is o'erpassed, return to their employments."
After the Revolution an attempt was made to establish a naval reserve
by means of a voluntary register, and so do away with impressment, but
this was a complete failure. Then, to foster the coal and other trades,
certain exceptions were granted; and still later, sailors in outward
bound merchantmen were exempted because of the hardship inflicted on
their employers (the hardship of the sailor impressed in sight of port
after a long voyage was not considered). When a warship fell in with a
merchantman on the high seas she impressed what men she would. British
sailors found on board American vessels were hauled out forthwith, and
this was one cause of the War of 1812.