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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.