The church of St. John of Beverley had a charter from Athels

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The Lawyer in History, Literature, and Humour.

Edited by WILLIAM ANDREWS, F.R.H.S.

"A welcome addition to the lighter literature of the law."--_The Times._

"A considerable amount of historical and literary information."--_Daily

News._

"An entertaining work. It is rich in the lore and the humour of the law,

and ought to be as interesting to the layman as to the lawyer."--_The

Globe._

"A handsome volume.... The work is printed and got up in a style that does

credit to the well-known firm of publishers."--_Chester Courant._

[Illustration: TRIAL OF A PIG AT LAUSANNE IN THE FOURTEENTH CENTURY.]

Legal Lore: Curiosities of Law and Lawyers

EDITED BY William Andrews.

LONDON:

WILLIAM ANDREWS & CO., 5, FARRINGDON AVENUE, E.C.

1897.

Preface.

The favourable reception given to my volume issued under the title of "The

Lawyer in History, Literature, and Humour," has induced me to prepare, on

similar lines, the present book, dealing with curiosities of the law. I

hope those who are interested in the study of the byways of literature may

find entertainment and instruction in its pages, and that it will win a

welcome not only from the legal profession, but from the reading public.

I am enabled by the courtesy of Messrs. Chatto & Windus, to reproduce for

my frontispiece, an illustration from a work published by them, under the

title of "Credulities Past and Present."

WILLIAM ANDREWS.

THE HULL PRESS,

10th December, 1896.

Contents.

PAGE

BIBLE LAW. By S. Burgess, M.A. 1

SANCTUARIES. By William E. A. Axon, F.R.S.L. 13

TRIALS IN SUPERSTITIOUS AGES. By Ernest H. Rann 23

ON SYMBOLS. By George Neilson 43

LAW UNDER THE FEUDAL SYSTEM. By Cuming Walters 58

THE MANOR AND MANOR LAW. By England Howlett 83

ANCIENT TENURES. By England Howlett 95

LAWS OF THE FOREST. By Edward Peacock, F.S.A. 109

TRIAL BY JURY IN OLD TIMES. By Thomas Frost 122

BARBAROUS PUNISHMENTS. By Sidney W. Clarke 132

TRIALS OF ANIMALS. By Thomas Frost 149

DEVICES OF THE SIXTEENTH CENTURY DEBTORS. By James C.

Macdonald, F.S.A., Scot. 161

LAWS RELATING TO THE GIPSIES. By William E. A. Axon, F.R.S.L. 165

COMMONWEALTH LAW AND LAWYERS. By Edward Peacock F.S.A. 179

COCK-FIGHTING IN SCOTLAND. 197

COCKIELEERIE LAW. By Robert Bird 200

FATAL LINKS. By Ernest H. Rann 205

POST-MORTEM TRIALS. By George Neilson 224

ISLAND LAWS. By Cuming Walters 237

THE LITTLE INNS OF COURT. 258

OBITER. By George Neilson 267

INDEX 277

LEGAL LORE.

Bible Law.

BY S. BURGESS, M.A.

At the very outset of any treatment of so delicate a subject as that

indicated by the title of this chapter, we are met by no small difficulty.

This consists in the danger of committing unintentional errors of

irreverence, and thus offending the prejudices of those who are more or

less pledged to their belief in the verbal inspiration of every Bible

chapter and verse. With this risk before us, we can only trust to our own

sense of a rational view of a subject so full of capabilities of

misconstruction. Those of us who can remember the outburst of righteous

indignation at the publication of the "Essays and Reviews" and of "Ecce

Homo," feel surprise at the quiet indifference with which views expressed

in them are now received. This does not at all, or necessarily, mean that

men's faith is colder, or that the spirit of reverent religious feelings

has died away. The advance of accurate scientific investigation may have

upset the faith of some, and given a subject for outbursts of intolerant

pulpit denunciations, but we must think that there are signs plainly

discernible of a quiet acceptation of modern discovery by the majority of

thoughtful and devout believers in the inspiration of Holy Scripture.

These remarks will be found not unneedful as we pursue the examination of

this particular branch of Biblical study, namely, the Law as it is found

in the Bible, and this will be seen at once when it is laid down as an

absolutely necessary condition of our investigation that this same Law can

plainly be divided into two distinct portions--that which is of Divine,

and that which is of human origin. The bare statement of this fact will

offend certain prejudices. The Divine "Fiat" stamps with as marvellous and

undoubted clearness, certain portions, as other parts are marked by the

progress of human intelligence, the needs of human society, and the force

of the human will.

The very fact of the existence of Law entails the necessity of Penalty,

and this may be spiritual or corporal. The former depends on the

acknowledgment of the rule over us of a Superior Being. The latter is a

necessary accompaniment of all and every human life, believing or

unbelieving. So in the Bible Law we can easily distinguish between the

penalty affixed to the breaking of the first of the Ten Commandments, and

that which followed on the breaking of the sixth. On the authority of

Hebrew scholars, we are told that the use of the Hebrew Article shows that

_The Law_ refers to the expressed will of God. If this rule be invariable,

it would be of great value, and especially so in the use of the Greek

Article.

The writers of the Psalms gave forth an intense reflection of the old Law;

always presuming, as they of course did, that it emanated from the Deity.

Now let us be allowed to start with the assumption that the Mosaic is the

earliest form of tabulated Law. A most excellent book has just been

published, "The History of Babylonia," by the Society for Promoting

Christian Knowledge. It is a cheap little book, but full of information

upon which one feels able to rely. We find there that the Moral Law of

Babylonia represents the spirit of Bible Law so accurately that it would

be absurd to set up any theory of an independent basis.

We must make a date somewhere, and therefore we cannot do better than

choose a date that can be fairly tested, and safely on this side of

mythical eras,--and that is about 1500 B.C. This must appear a very safe

and modest date to fall back upon. The Babylonians want us to go back

432,000 years, but to accept this assertion requires more faith than most

of us possess.

For our present purpose there is nothing gained by comparing the Mosaic

Law with that discovered with such infinite care and learning in the

Babylonian records. The utmost that can be said is that we have startling

coincidences, and an intensely interesting subject opened out. But there

is no single grain of information, and that is what we are just now in

search of. We feel quite distrustful of documents, especially _stone_

ones, which give the lifetime of Alorus as extending to 36,000 years. That

was before the Deluge. The Wandering Jew sinks into insignificance, and is

a mere puling infant by the side of such figures as these, because the son

of Alorus reigned for 46,800 years. However short the "year" was, the

period of life was quite lengthy. If a year was our week, the last named

patriarch was about 1,000 years old.

This is a departure somewhat from the Law as it is in our Bibles. But it

will be an interesting study for some kind student to compare that Law

with the echoes thereof found in Asiatic literature, even far away on the

eastern shores of China. The mystery still unsolved is, "_How did it get

there?_"

With the greatest diffidence we make the statement that the first notion

of Law was in connection with sacrifice. The time may come when this can

be refuted. But at present, leaving out of the question natural and

unwritten Law, we find no bond but this. Sacrifice comes to us as a Law

from a Superior Being. Heathen nations have recognized the efficacy of

sacrifice and offerings.

Man without Law was an impossibility. No living thing can exist without

some Law. Thus we look back to the first records of created living things

for some Law. Science sheds a great, broad, and even scaring, light on the

Law prevailing over inanimate nature. The seas and the fields obey it.

But for us to make a record of Law as it made its beginning, is a task too

great, and it is indeed then we feel that "fools may rush in" where better

souls have had to languish in doubt.

Let us take the Law in the Bible as we can read it, and how few care to

read it! There was a man once who had read the whole of the first five

books through _twice_. Thinking there might be something to gain from such

abnormal study, we propounded a few questions on this very subject. The

result was a senseless repetition of verses from Leviticus. And yet, to

tell the honest truth, there is very little left us to do but to _quote_.

There is a little assistance we can give, and most thankful we are to have

it in our power to do so. Let us all the time remember that the Bible Law

is the sole foundation of every Law, Human and Divine, as far as we can

discover. If it can be proved that the Babylonian record with its 40,000

year old kings is to be relied on, then by all means let us accept it.

We start with the sacrifice as the "_companion_" of the Law. No one can

feel hurt by this. It is no good to any of us to ask whether Abel's

sacrifice was according to revealed Law or anterior to it. It is plain

that sacrifice came to be the great medium of the Law between man and the

great prevailing Law. With this allowed, all the rest is easier to grasp.

The early Law among the first people seemed to have no force but in its

connection with some higher Power. This Power has been now deputed to

earthly sources.

The writers of the Psalms represent to us a perfect intercourse with the

Deity. The question then arises, "On what grounds was this intercourse

conducted?" The answer seems clearly to be on the conditions of the Laws

of sacrifice. Now, by comparing the elaborate list of these contained in

Smith's "Dictionary of the Bible" with a very careful one in "Notes on the

Hebrew Psalms," by W. R. Burgess (1879), we can make out a clear and very

useful _resume_. Leaving out the great sin offerings for the _whole

people_ and for the priests, we have the following sin offerings:--

1. For any sin of ignorance. Lev. iv. A most elaborate ceremonial of

sacrifice and blood sprinkling. We should like to know when the "plea of

ignorance" was done away with altogether, as we believe it has no force at

all in modern Law.

2. For refusal to bear witness on oath. Lev. v. This is of very great

interest in the light of recent legislation as to affirmation. We have

come across many people, it is needless to add grossly ignorant, who have

entirely lost sight of the obvious emphasis on the word "False" in the 9th

Commandment, placing the whole force on the fact of "Witness."

3. The Laws as to defilement. These, we presume, have left no trace on

modern Law.

4. The breach of a rash oath, the keeping of which would involve sin. Lev.

v., 4. This opens a most interesting subject, but we have not space to

enter upon it. From the days of Jephthah and his oath with regard to his

daughter until this day, the question has been full of difficulties, and

is divided amongst, perhaps, equal advocates for the two opposed views of

it.

5. Sacrilege in ignorance, fraud, _suppressio veri_, and perjury, were

punished by enforced compensation, and the addition of a fifth part of the

value concerned in the matter to the priest, or to the person wronged.

6. Illtreatment of betrothed slaves. Lev. xix., 20. This is only curious,

but at the same time has a connection with late enactments in criminal

Law.

7. The Law as to the powers of a father is extraordinary. When one

considers the relation now existing and defined by our Law, the revolution

is beyond all measure out of reasonable proportion. For a curse, a blow,

or even wilful disobedience, the penalty was _death_!

8. The Law of usury is difficult, but the chief points are well known. The

main principle of the Law prevails to this day. Let us only notice the

striking fact that usury could not be exacted upon the Jews themselves.

Does this not offer a fine comment on the grievous usury so cruelly

enforced in after years by these people upon the _Gentile_ races?

9. Debt. All debts were released at the seventh year. So there was a year

of limitation.

10. Tithe. This Law has been so frequently and ably set forth, that it is

entirely one's own fault if it needs any comment.

11. Poor Laws. These are conspicuous by their absence. There was a legal

right of gleanings, a second tithe to be given in charity, and wages were

to be paid day by day. (Deut. xxiv.)

A few rather important forms of legislation must be placed here as

addenda. We notice the entirely despotic power of the husband over the

wife, and all belonging to her. Compare _our_ useful but very late

enactment as to married women's property, apart from her almost complete

irresponsibility.

The slander against a wife's virginity is punished by a fine only, but the

fact of its truth, and therefore no longer a slander, is punished by the

death of the woman. This is a most striking proof of the lower room in

social judgment awarded to the female Israelite. We notice also that the

power of the master over his servant was absolute, but that the master

suffered a penalty if his servant or slave died under castigation! Ex.

xxi. If he was maimed, he was by this fact allowed his freedom. The rule

as to _Hebrew_ slaves is very interesting. It is too long to be quoted

here, but it can be easily mastered by a reference to Ex. xxi., Deut. xv.,

Lev. xxv.

We notice that there is no protection _legally_ allowed to _strangers_,

and so we find kindness and protection enjoined as a sacred duty.

We believe that the old list of "Prohibited Degrees," which we saw placed

in churches in our infancy, and is still to be seen, is in all respects

enforced by our present Law. But we are not quite sure of this. We can

only remember the vague sense of mystery underlying the clause, which was

always put in the largest type:--

"A MAN MAY NOT MARRY HIS GRANDMOTHER."

Another most interesting Law must be carefully noticed, and if possible,

more deeply studied. In cases of accidental homicide, there was mostly an

"avenger of blood" to be looked for. To escape this untoward follower,

cities of refuge or sanctuaries were named, and in these the poor wretch

was safe until the death of the high priest.

As to the legal penalty of adultery, are we quite sure that, according to

results, we have greatly improved upon the old Bible Law? Under this the

punishment was _death_ of _both offenders_. Was it the fear lest the

population of the world should be so very seriously lessened that

gradually brought this Law to less than a penal one, so that at this day a

Royal "Commission" is placed on the offence in the shape of the absolute

freedom of the offenders to seek for _another opportunity_?

Just a few words more as to those who interpreted the Law. These were the

Priests and the Levites. The "Judges," as we read of them in the book of

that name, had, with the exception of Samuel, mostly to do with the

settlement of political disputes, and the leading out of the people to

victory or defeat, as the case might be. But in later times the power of

the Sanhedrim was undoubtedly great.

The king's power was legally limited. But so it is, and has been, in all

ages and in all dominions _in theory_! Yet we find Rehoboam expelled by

Jereboam, and the latter as despotic as the former, just as we find a firm

will in Cromwell after the despotism of Charles, in what had been then for

centuries the most "Constitutionally" governed country in the world!

Sanctuaries.

BY WILLIAM E. A. AXON, F.R.S.L.

In all ages men have attributed a special sanctity to certain localities,

usually those devoted to the purposes of worship, and this sentiment has

in many lands been utilised in the interests of mercy by exempting those

within the precincts from arrest for some, or even all, crimes and

offences. In the earlier stages of development, the punishment of crime

was not regarded as a duty of the community, but as an obligation, or

privilege of the injured or of those nearest to him in blood or social

relationship. Thus the son of a murdered man had the right to murder the

murderer. The general principle of the earlier forms of justice is the

_lex talionis_, but the infliction of the penalty was mostly in the

discretion of the avenger. He might be afraid to attempt to slay a strong

or powerful homicide, and be willing to pardon the offence for a money

consideration. A criminal who took refuge in a sacred place secured at

least a breathing time in which his friends might effect a compromise

with his adversary. Greece had its famous _asyla_, but the custom of our

own country was probably influenced from Hebrew rather than classical

sources. In the narrative of the death of Joab, the hesitation of Benaiah

shows that it was unusual to slay one who had taken hold of the horns of

the altar. The six Cities of Refuge were appointed as places of safety for

involuntary homicides, where they were protected from the avenger of

blood. Amongst our Anglo-Saxon ancestors, the Church exerted a moderating

influence. Every consecrated church had the right to shelter the fugitive

from justice for seven days, and when the building was needed, he might be

placed in a house provided for that purpose by the church, which was not

to have more doors than the church itself. If the criminal was dragged

forth from his refuge, the violators of the sanctuary were fined in

varying degrees according to the rank of the ecclesiastical edifice. In

addition to the inherent right of each church, special privileges were

conferred on certain places by the exercise of the royal prerogative. In

1378, it was decided that the property of fraudulent debtors who had taken

sanctuary should be liable for the satisfaction of the claims of their

creditors. In 1486, Pope Innocent VIII. issued a bull relating to English

sanctuaries, by which it was provided that when the refugee left his

asylum, he lost his right of protection, even though he subsequently

returned to the sanctuary. At the same time, the king was empowered to

appoint keepers to look after those who having been accused of treason,

had taken sanctuary.

Great changes were made in the law during the reign of Henry VIII.

Traitors were wholly exempted from the privilege; those abjuring the realm

were not actually banished, but were to remain throughout life in the

sanctuary, and if they left it and committed any offence, they might then

be brought to trial. All inmates were to wear a badge twenty inches in

length and breadth, were forbidden the use of weapons, and were not to

leave their lodgings between sunrise and sunset. In 1538, the right of

sanctuary was further restricted, and Wells, Manchester, Northampton,

York, Derby, and Launceston were declared sanctuaries. Manchester found

this privilege to be of such doubtful value that two years later it was

transferred to Chester, and afterwards to Stafford. In the reign of James

I., the right of sanctuary was abolished almost everywhere. The Palatine

Counties had their special sanctuaries. In Cheshire, Hoole Heath,

Overmarsh, and Rudheath were such places of refuge. The abbey of Vale

Royal had also a grant. But generally the County Palatine of Chester was a

place of resort for those who had come into conflict with the law in other

parts of the kingdom, and it was not until the reign of Charles II. that

the king's writ ran in the palatinates and other privileged places. Many

privileged places in London, Westminster, and Southwark were brought

within the regular jurisdiction in the reign of William III. and George

II.

We have an instructive picture of the working of the sanctuary system in

the case of Manchester. The Act of 32 Hen. VIII., c. 8, abolished the

right of refuge in all places except, and the exception is a considerable

one--churches, hospitals, and churchyards. Perhaps a more important

exception was that sanctuary was to be denied to those guilty of murder,

rape, highway robbery, burglary, house-burning, or sacrilege. Whilst

abolishing many sanctuaries, certain additional places were named as

cities of refuge for minor offenders. One of these was Manchester. A year

later the town petitioned to be relieved from this distinction. The

inhabitants set forth that Manchester had a great trade in the bleaching

of linen yarn, and in the making of linen and woollen cloths and dressing

of cotton, and that the influx of dissolute persons to the sanctuary had

caused serious damage to the prospects of the town, which, having no

mayor, sheriff, or bailiff, and no jail, was badly circumstanced for

dealing with these lawless invaders. The request was granted, and the

sanctuary removed from Manchester to Chester. But the city of the Deva

found it desirable to obtain relief, and a further removal was made to

Stafford.

The fridstool at Hexham still remains, although nearly everything else of

the Saxon foundation has perished. This "chair of peace" was the central

point of the sanctuary, which extended a mile around. A Durham example of

the working of the law may be cited.

"Memorandum: That on the 13th day of the month of May, A.D. 1464, one

Colson, of Wolsyngham, Durham, who had been detected in a theft, and

therefore put and detained in gaol, at length contrived to escape,

and fled to the Cathedral Church of Durham, in order to avail himself

of its immunities, and whilst he was there standing near the bier of

St. Cuthbert, prayed, that a Coroner might be assigned to him. Upon

John Raket, Coroner of the Ward of Chester in Strata (sic) coming to

him, the same Colson confessed the felony, making upon the spot the

corporeal oath that he abjured the realm of England, and would

withdraw from it as soon as he could conveniently, and would never

return thither, and which oath he took at the bier of St. Cuthbert in

the presence of Master George Cornworth, Sacristan of the Cathedral

Church of Durham; Ralph Bows, Knight and Sheriff of Durham; John Raket

(the Coroner); Robert Thrylkett, Deputy Sheriff; Hugh Holand, and

Nicholas Dixson, and of many others; by reason of which renunciation

and oath all the dress of the said Colson belonged to the said

Sacristan and his office; wherefore the said Colston was enjoined to

take off to his shirt all his garments, and deliver them to the

aforesaid Sacristan, and he did so, placing them all into his

possession, the Sacristan gave up and delivered to him again,

gratuitously, all his dress that he had up to this occasion been

clothed in; and after that Colstone withdrew from the Church, and was

handed over to the nearest constable by the aforesaid sheriff, and so

on from constables to constables, holding a white cross made of wood

as a fugitive, and so he was to be conducted to the nearest seaport to

take vessel as one never to return. This was done on the day, month,

and year aforesaid."[1]

The system was one that led to gross abuse. It was held that the right did

not extend to others than those whose offences entailed forfeiture of life

and limb, but in practice knavish debtors, fraudulent executors, etc.,

availed themselves of the protection. There was plenty of scope for

dispute as to jurisdiction. In 1427, the Abbot of Beaulieu was required to

give proof of his right to shelter William Wawe, who is described as a

heretic, traitor, common highwayman and public robber. "Wille Wawe was

hanged," is the sum of the matter as recorded by Stowe. Between 1478 and

1539, at Durham, 283 persons took refuge who were, as principals or

accessories, accused of homicide. There were sixteen debtors, four

horse-stealers, nine cattle-stealers, and four house-breakers. One had

been charged with rape, and seven with theft. One had been backward in his

accounts, one had harboured a thief, and one had failed to prosecute. Sir

John Holland, in revenge for the death of his esquire, killed the son and

heir of Hugh, second Earl of Stafford, and then took sanctuary at

Beverley. The murderer, in this case, was the half-brother of Richard II.,

but it was with great difficulty that the king was induced to grant a

pardon.

The church of St. John of Beverley had a charter from Athelstan, and near

the altar was the Fridstool, or chair of peace, "to which what criminal

soever flies hath full protection." The privilege extended for a radius of

about a mile round the minster, and the limits were marked by stone

crosses. Infraction of the right of sanctuary was punishable by severe

penalties, and to take a refugee from the Fridstool was to incur both

secular and ecclesiastical penalties, the latter extending to

excommunication.[2]

The widow of Edward IV. fled with her younger children for safety to the

sanctuary of Westminster after her eldest son had fallen into the keeping

of the Duke of Gloucester. Sir Thomas More reports the discussion in the

Council of the Protector, and the arguments used by Cardinal Bourchier,

which induced the queen to give up the Duke of York. The boy king, who was

never crowned, and his brother were murdered in the Tower. It is

noteworthy that this unfortunate monarch was born in the sanctuary of

Westminster when his father was in exile. Skelton, the poet, died in this

same sanctuary.

The privileges of the sanctuary were not always respected. When Geoffrey,

Archbishop of York, took refuge in St. Martin's Priory, Dover, he was

dragged from the altar in his pontifical robes by order of the bishop of

Ely, who was then Chancellor of the Kingdom. But this arbitrary proceeding

was not the least of the causes of the downfall of William of Longchamp.

When William Longbeard, who had been condemned to death, took sanctuary at

St. Mary-le-Bow, Hubert de Burgh ordered the church tower to be set on

fire to compel him to come forth. Longbeard abandoned his place of refuge,

and was dragged to Tyburn, and there hanged. But although de Burgh was

Archbishop of Canterbury and Justiciary of the Kingdom, and the Church was

his own peculiar, his violation of sanctuary led to the loss of his great

secular dignity. Later, when he had himself to seek refuge, a great debate

arose as to his having been forcibly taken from a sanctuary, and he was

restored to its protection, and escaped to Wales.

Whilst the same rights of sanctuary existed in Ireland and in Wales, they

were apparently not made use of to any great extent. In Scotland, the

churches of Wedale, near Galashiels, and of Lesmahagow, near Lanark, were

the most famous of the religious sanctuaries. The latter had also a royal

charter from David I. These sanctuaries ended with the Reformation. The

abbey of Holyrood and its precincts, which include Arthur's Seat and the

Queen's Park, gave protection to debtors until, by the abolition of

imprisonment for debt, its privileges ceased to have any meaning. One of

those who thus sought refuge at Holyrood during a part of his career was

Thomas de Quincey.

Sanctuaries probably served a useful purpose in ages when the law was

harsh and indiscriminate in its punishment of offenders. The limited

protection afforded by the Church sanctuaries at least gave an opportunity

for the first heat of revengeful feeling to subside, and the greater

sanctuaries protected not merely vulgar offenders, but those whom the

stormy tide of politics had placed at the mercy of their enemies. As the

law became stronger, and the course of justice more certain, the need for

these refuges ended, and those that continued were public nuisances, and

mere centres of crime and anarchy, such as Scott has described for us in

his picture of Alsatia. We may be thankful that sanctuaries are now merely

objects of antiquarian interest and speculation.

Trials in Superstitious Ages.

BY ERNEST H. RANN.

In superstitious ages, when belief in the power of the law to adjust all

quarrels, to hold the balance equally between man and man, and to accord

to each one his rights, was less prevalent than it is at the present day,

disputants naturally resorted to other tribunals for the settlement of

their claims. A perfect system of law was impossible; what law existed was

arbitrarily administered, often for the benefit of the most powerful

litigant, and the claimant with only justice on his side often had the

mortification of seeing a verdict given against him. During the

development of a system of law-giving, when the accumulated experience of

humanity had not sufficed to produce perfection, man in his darkness, his

ignorance, and superstition, turned to the supernatural, and devised

certain ceremonies by which the judgment of God might be evoked to

demonstrate the guilt or innocence of the accused.

The antiquity of the ordeal, as it was called, cannot be measured. Such a

form of trial is found to have existed in the earliest ages, and even now

traces of it linger among savage tribes of the earth. In Africa especially

the ordeal is well known. During his travels among the negro tribes north

of the Zambesi, Dr. Livingstone encountered the curious practice of the

"mauvi," which consisted of making all the women of a tribe drink an

infusion of "goho," for the purpose of ascertaining which of them had

bewitched a particular man. The accused women were drawn up in a row

before the hut of the king, and the draught administered to them. Those

who were unable to retain the horrible decoction, and vomited, were

considered innocent of the charge: those who were purged were adjudged

guilty, and put to death by burning.

The Calabar bean is also used by the natives of Africa in the form of an

emulsion as an ordeal for persons accused of witchcraft, proof of

innocence consisting of ability to throw off the poison by vomiting. Among

the Barotse tribes the process is conducted by deputy, the testing liquid

being poured down the throat of a dog or cat, and the accused person being

treated according to the effect produced on the animal. Among the Dyak

tribes lumps of salt are thrown into a bowl of water by the accuser and

accused, and judgment is given against the owner whose lump disappears

first. Another method adopted by the Dyaks is for each of the two parties

to choose a mollusc, and to squeeze over it a few drops of lime-juice; the

owner of the mollusc which moves first under the acid stimulant losing the

case. Ratzel mentions that among the Malay tribes ordeals by fire,

ducking, pulling a ring out of boiling water, or licking red-hot iron, are

still frequent. Where the ordeal fails to produce the desired result,

wager of battel, in reality another form of ordeal, is resorted to. Among

the Tagals it is usual to light a consecrated candle, and to consider the

person guilty of the crime under consideration to whom the candle flame is

blown during the performance of the ceremony. The Igorrotes have a more

painful method of fixing guilt. The accuser and the accused are placed

together; the backs of their heads are scratched with a sharply-pointed

bamboo stick, and the man who loses most blood also loses his case.

In Hawaii ordeals are administered by the priests, the suspected person

being compelled to hold his hands over consecrated water, and adjudged

guilty if the liquid trembles in the vessel while the priest looks at him.

The Siamese have a form of ordeal which consists of making the two parties

to a suit swallow consecrated purgative pills, the man who retains them

for the greater length of time winning the case.

Even among the comparatively enlightened races of the peninsula of India,

ordeals of the most elaborate and curious character are practised at the

present time. Warren Hastings mentions that in his day no fewer than nine

forms were in use among the Hindoos. The ordeal of the balance was

commonly employed, and is still in force in certain districts. The beam is

adjusted, and both scales made perfectly even. After the accused has been

bathed in sacred water, and the deities worshipped, he is placed in the

scale-pan and carefully weighed. When he is taken out the Pandits

pronounce an incantation, and place round his head a piece of paper

setting forth the charge against him. Six minutes later he again enters

the scale, and the balance is called upon to show his fault or innocence.

If he weigh more than before, he is held guilty; if less, innocent; if

exactly the same, he must be weighed a third time, when, according to the

_Mitacshera_, a difference in his weight will be observable. Should the

balance break down, the mishap would be considered as proof of the man's

guilt.

The ordeal of the balance is not altogether unknown in English history,

for an incident is recorded in which Susannah Haynokes, of Aylesbury, was

accused of bewitching her neighbour's spinning-wheel, and preventing it

from working properly. Susannah loudly protested her innocence, and

demanded an ordeal to prove it. She was taken to the church, and weighed

in a semi-nude condition against a copy of the Bible, and being able to

outweigh the Scriptures, was considered to be innocent of the offence

charged against her. Possibly it never occurred to the owner of the

spinning-wheel that lack of oil was the cause of its refusal to go round.

Among other ordeals in use by the Hindoos is that of iron, the accused

being required to lick a red-hot bar of the metal. If his tongue be burnt,

he is considered guilty, if not, he is reckoned innocent, but it cannot be

supposed that among tribes addicted to this practice the injury to the

tongue is considered sufficient punishment for the offence with which the

suspect is charged. The poison ordeal, employed also, it may be noted, by

the Hovas of Madagascar, is commonly practised. A small quantity of

_vishanaga_, a poisonous root, is mixed with clarified butter, which the

accused must eat from the hand of a Brahman. If the poison produce no

visible effect, he is absolved; otherwise, condemned. In other cases the

hooded snake called _naga_ is placed in a deep earthen pot, from which the

accused has to take a ring, seal, or coin without being bitten, when he is

considered innocent. In trial by the Cosha the accused is made to drink

three draughts of water in which images of the Sun, of Devi, and other

deities have been washed. If, within fourteen days, he is afflicted with

any form of sickness, he is considered guilty.

For the fire ordeal an excavation is made in the ground, and filled with

burning pippal wood. Into this a person must walk bare-footed without hurt

in order to prove his innocence. Hot oil ordeals are also in force, when

the accused has to thrust his hand into the liquid without being burned;

and chewing a grain of consecrated rice, which, if it comes from the man's

mouth dry or stained with blood, is considered proof of his guilt. At

other times a silver image of the Genius of Justice, called _Dharma_, is

thrown with an image of iron or clay, called _Adharma_, into an earthen

jar; and the accused is acquitted if he bring out the silver image, but

condemned if he draw forth the iron.

The history of the middle ages furnishes numerous examples of ordeals

employed in the settlement of disputes, which in the absence of a strong

and impartial system of law-giving, found great favour with the people of

all ranks. They were peculiarly distinguished by the appellation of

_Judicium Dei_, or judgments of God, and sometimes called _vulgaris

purgatio_. The law of the Church sanctioned the ordeal throughout Europe

for a considerable period, and faculties were freely given by the clergy

for the performance of these strange ceremonials. Indeed, the whole

business, as a judgment of God, was frequently conducted by the servants

of the Church, always in consecrated ground, and the sacred edifice itself

was occasionally requisitioned in order to add greater solemnity to the

proceedings. The ordeal of fire, practised, curiously enough, by the

Greeks in the time of Sophocles, was allowed only to persons of high rank.

The accused was required to carry a piece of red-hot iron for some

distance in his hand, or to walk nine feet, bare-footed and blind-fold,

over red-hot ploughshares. The hands or feet were then immediately bound

up, and inspected three days afterwards. If, on examination, no injury was

visible, the accused was considered innocent; if traces of the burning

remained, he was reckoned guilty, and received punishment commensurate

with his offence, without any discount for the harm he had already

suffered.

The most notable historic instance of this form of ordeal is that of Queen

Emma, mother of Edward the Confessor. She was accused of a criminal

intrigue with Alwyn, Bishop of Winchester, and condemned to the ordeal of

fire, which, on this particular occasion, took the form of nine red-hot

ploughshares, laid lengthwise at irregular intervals, over which she was

required to walk with bandaged eyes. She passed successfully through the

severe trial, and at the conclusion innocently asked when the ordeal was

about to begin. The Queen's innocence was, to the popular mind,

established more substantially than would have been possible in any

existing court of law. She was not the only gainer by the restoration of

her reputation, for in consideration of the success which had attended

her, she settled twenty-one manors on the Bishopric and Church of

Winchester.

In the Eastern Empire the fire ordeal was largely used by the Emperor

Theodore Lascoris for the discovery of the origin of the sickness with

which he was afflicted. His majesty attributed the malady to magic, and

all suspected persons were required to handle red-hot iron in order to

establish their guilt or innocence, "thus joining," as an ancient scribe

exclaims, "to the most dubious crime in the world the most dubious proof

of innocence."

Fire, as we have said, was employed for persons of high rank: those of

baser degree, especially bondsmen and rustics, were tried by the ordeal of

boiling water. "I will go through fire and water for my friend" was a

common expression in the middle ages, and, though having lost its original

significance, the saying has persisted to the present time as a

declaration of self-sacrifice. The accused person was required to take a

stone from a pan of boiling water, to insert the hand and wrist into the

liquid, and in case of the triple ordeal, to plunge the arm in up to the

elbow. When cold water was employed, and in cases of witchcraft this was

generally resorted to, the suspect was flung into a river or pond. If he

floated without appearance of swimming, he was pronounced innocent; if he

sank, he was condemned as guilty--rather a superfluous proceeding,

considering that the man was in all probability already drowned.

It would be going too far to assert that in all cases these ordeals were

carried out with the strictest impartiality and consideration for the ends

of justice. Means were not unknown to circumvent the peculiar forms of the

trial, and precautions were often taken by the clergy, as might have been

done in the case of Queen Emma, to protect those whom they desired to

clear of suspicion. It is a well-known fact that white-hot iron may be

licked with impunity, and the Mevleheh dervishes are proficient in the

trick of holding red-hot iron between their teeth. Sometimes cold iron,

painted red, was employed, and at others the fire reduced in temperature

at the critical moment, the suspect receiving only such injury as would

heal in the three days allowed before his hand was examined. Artificial

preparations were frequently employed, while the suspect had at times the

option of going alone into the church, and in all cases of keeping the

crowd of spectators at a distance, which made minute inspection of the

proceedings impossible.

Another form of ordeal was the _judicium crucis_, or trial of the Cross,

employed largely in criminal cases. When an accused person had declared

his innocence on oath, and appealed to the judgment of the Cross, two

sticks were prepared precisely like one another. The figure of the Cross

was cut upon one of these sticks, and the other left blank. Each of them

was wrapped in fine white wool, and laid upon the altar or the relics of

the saints, after which a prayer was uttered that God might discover by

unmistakable signs whether the prisoner was innocent or guilty. The priest

then approached the altar, took up one of the sticks, and uncovered it. If

it happened to be the stick marked with the cross, the prisoner was

pronounced innocent; if it were the other, he was condemned as guilty. A

different form of this ordeal was adopted when the judgment of the Cross

was invoked in civil cases. The judges and all parties to the suit

assembled in the church. Representatives, generally the youngest and

strongest priests, were then chosen, and required to stand one on each

side of a crucifix. At a given signal they stretched out their arms at

full length, so as to form a cross with their body, and in this painful

posture they continued to stand during divine service. The party whose

representative dropped his arms first, or shifted his position, lost his

cause. History records a dispute over a monastery, between the Bishop of

Paris and the Abbot of St. Denis, which was settled in this manner. A

crowd assembled, and arranged bets on the result, but those who supported

the Bishop's man were sadly disappointed, for he dropped his arms at an

early stage, and lost the cause of his employer. The ordeal of the Cross

was abolished by Louis de Debonnaire in 816, on the ground that it was

irreverent in character.

Ecclesiasticism also played a prominent part in the ordeal of the

corsnedd, to which persons accused of robbery had to submit. The corsnedd

was a piece of bread made of unleavened barley, to which cheese made of

ewe's milk in the month of May was added. Over the whole, one ounce in

weight, a form of exorcism was uttered, desiring of the Almighty that the

corsnedd might cause convulsions and paleness, and find no passage, if the

man were really guilty, but might turn to health and nourishment if he

were innocent. The practice is strongly remindful of the trial of jealousy

in use among the Israelites, by which an unfaithful woman was compelled to

drink holy water containing dust of the floor of the tabernacle, the

belief being that she would be stricken with illness if she were guilty.

The corsnedd was given to the suspected person, who at the same time read

the sacrament. Godwin, Earl of Kent, was, in the reign of Edward the

Confessor, accused of murder, and forced to the ordeal of the corsnedd,

when, according to ancient chroniclers, the consecrated food stuck in his

throat, and caused his death. Both the expressions, "I will take the

sacrament upon it," and "May this morsel be my last," are supposed to have

been derived from this curious form of law-giving. A somewhat similar

custom is in vogue in Russia at the present day. Balls of bread are made

and dropped into consecrated water, the priest meanwhile reciting the

formula:--"Ivan Ivanoff, if you are guilty, as this ball falls to the

bottom, so your soul will fall into hell." As a rule the culprit confesses

immediately. In Ceylon, also, a similar form of ordeal is by no means

unusual. A man suspected of theft is required to bring the person he

holds in greatest affection before the judge, and placing a heavy stone on

the head of his substitute, say, "May this stone crush thee to death if I

am guilty of the offence." The Tartar sets a wild bear and a hatchet

before the tribunal, saying as he does so, "May the bear devour me, and

the hatchet chop off my head, if I am guilty of the crime laid to my

charge."

Another form of ordeal which was cherished and practised with assiduity

was that of the bier, founded on the belief that the body of a murdered

man would show signs, by bleeding or movement, when his assassin

approached. The accused had to place his hand on the naked breast of the

corpse, and declare his innocence, though the slightest change in the body

was considered proof of his guiltiness. This method of finding out

murderers had its origin, it is believed, in Denmark, where it was in the

first instance adopted by King Christian II. for the discovery of the

murderer of one of his courtly followers. The belief has survived to a

certain extent to the present day, for even English peasants still expect

all persons present at a funeral to touch the body in proof of their

bearing no ill-will towards the dead man.

Not so frequently employed, but still occasionally met with in ancient

history, was the ordeal of compurgation, where the innocence of the

accused was sworn to by his friends, and judgment went against the party

whose kindred refused to come forward, or who failed to provide the

necessary number of compurgators. It was a conflict of numerical strength,

and the higher number carried the day.

Another custom, still surviving, was to tie a key in a Bible opened at

Psalm L, verse 18, "When thou sawest a thief, then thou consentedst with

him," and balance the whole, the belief being that the book would turn in

the hands of a guilty person.

Challenging the accuser to mortal combat was a proceeding which found much

favour with the warlike spirit of the middle ages. Of course it was

considered that Providence would defend the right, even if a miracle were

needful, but nevertheless each party placed considerable reliance on his

own strength of arm and fighting skill. These judicial combats were in

ancient times practised among the Jews, and were also common in Germany in

remote ages, though they do not find mention in Anglo-Saxon laws, and

were apparently not in use in England until after the Norman Conquest. In

Germany a bier was placed in the midst of the lists, accuser and accused

stood respectively at the head and foot, and remained for some minutes in

profound silence before they commenced fighting. Civil, criminal, and

military cases were, in the absence of sufficient direct evidence, decided

by means of the judicial combat or wager of battel. The offended party had

the right to challenge his accuser to settle the dispute by force of arms,

and the forms and ceremonies connected with the trial are well illustrated

in the opening scenes of "King Richard II." The combat took place in the

presence of the court itself, Heaven being expected to give the victory to

the innocent or injured party. It was commonly resorted to in charges of

treason, as in the above-mentioned dispute between Henry Bolingbroke and

Thomas Mowbray, when the ceremonies were of an imposing character. As in

the majority of ordeals, deputies could be chosen to perform the requisite

duties, but the principals were in all cases answerable for the

consequences. No commoner was allowed to challenge a peer of the realm,

nor could the citizens of London, for some obscure reason, indulge in

these popular forms of legal administration. Each of the combatants

professed his willingness to make good his claims, body for body--

"For what I speak

My body shall make good upon this earth,

Or my divine soul answer it in heaven."

Neither sorcery nor witchcraft had to be employed, and the battel was to

continue until the shades of evening had fallen, and the stars appeared.

If the accused were killed, his blood was attainted, but if he were only

vanquished, he was immediately condemned to an ignominious death by

hanging, providing he accepted his fate without demur. The defeated party,

however, might crave his life, in which case he was allowed to live as a

recreant, on condition that he retracted unreservedly the false statements

that he had sworn.

At the Durham Assizes, on August 6, 1638, a wager of battel was offered

and accepted, for deciding the rights to land at Thickley, between Ralph

Claxton, demandant, and Richard Lilburne, tenant. According to an old

chronicle, "the defendant appeared at 10 o'clock in the forenoon, by his

attorney, and brought in his champion, George Cheney, in full array, with

his stave and sandbag, who threw down his gauntlet on the floor of the

court, with five small pieces of coin in it. The tenant then introduced

his champion, William Peverell, armed in the same manner, who also threw

down his gage." But the champions, instead of being allowed to fight, were

ordered to appear at the Court of Pleas in the following month. Legal

arguments followed, and the trial by battel was eventually postponed

indefinitely.

Legal Lore: Curiosities of Law and Lawyers · 第 1 / 13 段