compelled to settle their quarrel in person, unless one of them was a
woman, an infant, or a man over the age of sixty, or was afflicted with
lameness or blindness. In the case of any of these disqualifications,
trial by jury could be claimed and insisted upon. One of the most
remarkable wagers of battel occurred in 1817. A young woman named Mary
Ashford, living at Erdington, near Birmingham, was supposed to have been
murdered early one morning when returning from a dance. Suspicion fell on
Abraham Thornton, a partner of the previous night, who was tried for the
crime and acquitted. Evidence for another trial was collected, and
Thornton was _appealed_ by William Ashford, the direct heir male of the
murdered woman. But when the proceedings commenced, Thornton's counsel
took refuge under a very old Act, by which no man could be tried on a
second charge of murder, on which he had been acquitted, except by wager
of battel before the king, between the heir-at-law of the person murdered
and the accused. The appellant, Mary Ashford's brother, declined the
combat on the ground of physical inferiority, and Thornton was discharged.
Immediately afterwards the antiquated law was removed from the Statute
Book.
This marked the end of trials by ordeal as recognised by law. The process
of extermination had long been in progress, but popular opinion was
against reform, and certain of these curious customs survived. Although
the clergy had at first taken part in these ceremonials, and presided over
them in church, they came in time to discountenance them. The canon law
declared against ordeals as being the work of the Devil, and a decree to
this effect was issued in the eighteenth canon of the fourth Lateran
Council in November, 1215. Upon this authority it was thought proper,
says Blackstone (as had been done in Denmark a century ago), "to disuse
and abolish these trials entirely in our courts of justice by an Act of
Parliament, Henry III., according to Sir Edward Coke, or rather by an
order of the King in Council." The actual date of the abolition of ordeals
by fire and water was 1261. On the Continent these forms of trial had been
abolished by civil and ecclesiastical law much earlier, although in 1498
an attempt was made to test the doctrine of Savonarola by means of a
challenge from one of his disciples to a Franciscan friar to walk through
a pile of burning wood. Old customs die hard, and the incident is a
curious and interesting instance of the persistence of a popular form of
trial even among the members of a party by which it had been condemned.
On Symbols.
BY GEORGE NEILSON.
The wayward fancies of mankind are well illustrated in the diversity of
symbolic observances, some never losing their meaning, some absolutely
unintelligible in their historic form, and some as much characterised by a
befitting dignity, as others are by the want of it. All once were
self-explanatory and possessed a measure of propriety proportioned to the
state of the people amidst whom they originated. But tradition is long,
centuries elapse, each modifying a ceremony, and when the procedure
emerges within the knowledge of record, it has often so lost touch with
its surroundings, that it is hopeless to speculate how it arose.
Symbols are drawn from and applied to every field of human activity. Of
course in a general sense man expresses himself only so, and a regular
alphabet is but a comparatively trifling advance on the language of signs.
What we call civilization, is at bottom little more than a clear
recognition of certain symbols of government. The Queen's crown, the
Judge's ermine, the Mayor's mace, what are they else? The sceptre is only
a glorified stick, of which the policeman's baton is a humbler shape. Each
embodies the great thought that behind it stands a nation's determination
to be ruled by law.
In the history of law, symbol and the traces of symbol meet us at every
turn. The middle ages teemed with them. Roman law had bequeathed not a
few. Perhaps the most wondrous of them all is one that has long ceased to
have any legal connection, although its mark is all-powerful over
civilisation. How daring was the imagination which prompted the choice,
for the heraldic badge of Christianity, of the dread emblem of capital
punishment by crucifixion! In the pure domain of the law of the early and
middle ages, a perfect wilderness of symbols presents itself to eyes which
strive to explore the origins of institutions.
Law is ever beset by a tendency towards formalism, and in early times a
severe insistence upon ceremony, no doubt, gave prominence and
prescriptive sanction to symbolic acts. Law and custom after all only mean
that the way things were done yesterday is the safest way of doing them
to-day. The acceptance of a common form implies a very large public
consent, which is equally necessary to its abrogation, once it is
accepted. No small part of its value lies in its certainty, "certainty
which," Coke well says, "is the mother of quiet and repose."
Hence the fixity and longevity of many emblematic methods of performing
acts affecting status or property rights. The constitution or discharge of
slavery, or the transfer of a slave from one master to another, had a
variety of set forms. A freeman might deliver himself to serfage by
putting a leathern thong upon his neck. When a church was the donee, the
ceremony might take place at the altar, and the man present himself there
with cords round his throat. "Thus he offered himself," says an old
record, "to the Almighty Lord." A coin or two on the head was also a
customary part of the process. In the manumission or liberation of the
slave, these coins struck off the head served the purpose of declaring him
free, as did the companion symbol of open doors, or the placing him at
four cross roads, and bidding him go whither he would. Another common
symbol of enfranchisement was the delivery of an arrow, thought to denote
the right confined to freemen of bearing arms.
Even a short account of legal symbols would make a very large treatise.
Single instances such as the ring, the staff, the glove, and the horn
would each furnish material for an elaborate monograph. The theme would
call for a discussion of the great war of investitures, and would touch
very many points of ecclesiastical, civil, and criminal law and history.
The scope of the present unambitious article is only directed to a few
illustrations in relation to the transfer of land, the act of divesting
the old proprietor and clothing the new with his rights. Although such
symbols usually had a connexion with the subject conveyed, there are many
types in which that connexion is not readily traceable. Why for example
amongst the Saxons should a resignation of all interest in an estate have
been made by a gesture with curved fingers? One can understand why a sod
should be so often a token, but why does the glove play so large a part in
Merovingian and Carolingian conveyancing? Was it, indeed, as German
scholars speculate, because the donor metaphorically took it off and the
donee put it on, making his the covered hand, the _vestita manus_, that
would defend the land conveyed? How came an eleventh century magnate to
attest his renunciation of justiciary rights to a monastery "by cutting
off the top of the silk band by which his fur robes were fastened to his
breast, and with that segment re-investing three monks therein?" In this
case a portion of that silken band was carefully sewn up, as an adminicle
of evidence, in the writ recording the transaction. How again came it that
a claim of feudal service might be departed from by the delivery and
placing of a wand (_virgula_) upon the altar? All these are much more
personal symbols than real. They are mainly guarantees of the grantor's
good faith. They do not seem to be primarily emblems of possession. The
contrast between these two classes will be best appreciated by considering
types of the latter.
When a purchaser proceeded to set up fresh boundary marks, or to take a
spade and dig, or when he received delivery of a sod with grass or
shrubbery upon it, or lifted from the ground the charter granted by the
seller with amongst other things a sod laid thereon, the act of seisin,
the formal occupation is visibly completed. Of this class of symbol, the
sod (_cespes_) is probably the best and most typical for a few words of
illustration. We read of litigants laying judicial claim to land in the
mall or public court by putting their spears into a sod, representative of
the subject in dispute. We hear of the sods being cut in the shape of
bricks, and of their being preserved as memorials, with the twigs growing
in and incorporated with them. We hear of sods offered on the altar when
the grant of land was being made to a church. We hear of transfer from one
vassal to another being accomplished by the grantor delivering the sod to
the over-lord, and the latter passing it on to the grantee.
Of all the symbols employed in connection with feoffments, however, the
rod (_festuca_) had the widest vogue on the continent. Not that it was
restricted to transactions in land; it was a more or less lineal
descendant of the Roman stipulation, a contract visibly expressed by the
parties breaking a straw between them. Under Charlemagne a renunciation by
certain priests was made by them "holding straws in their hands and
casting them from them before God and his angels." Later this appears as
a recognised method of renunciation, but with a rod substituted for the
straw. In some cases the fact of renunciation is emphasised by the rod
being not only thrown to the ground by the resigner, but trodden under
foot when there. The role of the _festuca_ was peculiarly important
amongst the Frankish peoples.[3] Galbert of Bruges, a Flemish twelfth
century historian, states that the counts of Flanders gave investitures to
their vassals, after receiving their fealty and homage, by a wand
(_virgula_) held in hand, and he has a dramatic passage describing how the
people of Bruges, in token of their renunciation of their feudal bond to
Hacket the castellan, "picking up bits of stick exfestucated their homage
and fealty," _i.e._ cast the rods from them, and so doing severed all
connexion with their former chief.
In England and in Scotland, this rod symbol (_fustis et baculus_) also
played a large part. Bracton referred it specially to land without houses.
Tenure by the verge, a species of copyhold, had its name, we learn from
Littleton, from _un petite verge_, delivered by the old tenant to the
steward or bailiff of the manor, who re-delivered it to the new holder.
Jordan Fantosme tells us that when Brien, messenger of Ranulf Glanvil, in
1174, announced in Westminster the capture of the Scottish King at
Alnwick, Henry II. rewarded him for his good news by handing him a stick
(_bastuncel_), which vested him in ten librates of land. In Scotland the
feudal resignation by a vassal to his overlord for the re-investure of a
fresh owner was effected by "staff and baton" (_fustis et baculus_), and
references to those symbols occurred in every day conveyancing until far
into the present century. Indeed this picturesque ritual was, strictly
speaking, not abrogated, although made unnecessary, by the Act 8 and 9
Victoria ch. 35.
The commonest conveyancing symbol for land in England was the formal
delivery of turf or twig of the ground conveyed, made by a representative
of the grantor, to a representative of the grantee. The most familiar in
Scotland was the handing over of "earth and stone." This latter was the
normal form of seisin, and its history goes far back, not only in
Scotland, but on the continent as well. A curious Saxon legend attests
this. Widukind narrates that some Saxons, having landed from their ships
in Thuringia, one of them, wearing a golden torque and bracelets, met a
Thuringian, who asked if he would sell his ornaments. The sly Saxon
entered into an odd transaction; the Thuringian gave him in exchange for
his gold, a lapful of soil. The Thuringians rejoiced exceedingly over the
smart bargain their countryman had made, but changed their tune when soon
afterwards the Saxons claimed the land as theirs, purchased with their own
gold, and by force of arms made good the demand.
Our chronicles have a good many stories about symbols. In the Norman
_Brevis Relatio_, a sketch of the origin of William the Conqueror, is told
of his grandfather, Duke Richard the Good, that once when staying at a
monastery, after prayer in the morning he laid a spindle on the altar.
Upon being asked what it meant, he named the manor which he had by so
homely a symbol bestowed for the good of his soul. When the infant William
came into the world, it was said,--and afterwards noted as prophetic--that
when they laid him down upon some straw, the little hands each clutched a
handful. Acquisitive tendencies were foreshadowed! The _Roman de Rou_
tells that in 1066, when William landed in England, he stumbled and fell,
an omen which for the moment disconcerted his followers, but rising with a
shout, he swore by the splendour of God that with his two hands he had
taken possession of the land. Prompt to catch the occasion, one of his men
ran forward to a cottage, tore a handful of thatch from the roof, and
passed it to his chief, with the cry, "Receive this
seisin,"--quasi-ceremonial words which with William's pious, "God be with
me," the curious may compare with the formalities of English livery in
deed, as described (sec. 59), in Coke upon Littleton.
The normal symbol of seisin for a house in England, was (before the Act 7
and 8 Victoria ch., 76, superseded these archaic ceremonies), was the ring
or hasp of the door, known in Scotland for houses in burghs as "hasp and
staple." In the latter country also, there were a good many special types
of symbol characteristically appropriate to seisin in special kinds of
property. Thus for mills "clap and hopper," for fishings "net and coble,"
for teinds (Anglice tithes) a sheaf of corn, for the patronage or
advowson of a church a psalm-book and keys, attained the figurative
purpose requisite. There were many others less familiar amongst them, one,
a hat, worthy of a few words all to itself. Our own generation may not
regard this as a particularly dignified symbol, but there is a cloud of
witnesses to shew its very various applicability. The priest's cap or
biretta was sometimes employed to instal him in a chaplainry or benefice.
And apart from the place of the hat in the regulations of the tilting
ring, it was occasionally used in Scotland as a symbol in connection with
what were known as heirship goods. But it had in the twelfth century been
accorded the very loftiest use to which secular symbolism could be turned.
In 1175, King William the Lion, taken prisoner the year before,
relinquished the independence of Scotland, and did homage to the English
King at York, as a condition of his liberation. The contemporary records
are silent regarding symbolic details, but in 1301 Edward I. stated in his
letter to the Pope that "in token of his fealty, William the King of
Scotland, had, on the altar of St. Peter's, at York, offered his cap
(_chappelus_), lance, and saddle, which until this day remain and are
preserved in said church." Any incredulity which a fair-minded Scot can
entertain, regarding this allegation that the freedom of his country was
once symbolically surrendered in King William's cap, will be materially
lessened, and Scottish patriotism so far consoled, by the recollection
that under very similar circumstances the realm of England was in 1193
given away with the bonnet (_pilleus_) of the captive Richard I., who,
thus (as Hoveden tells us), gave investiture of his kingdom to his
arch-enemy, the Emperor Henry VI. This was, however, only formal: the
Emperor at once re-invested King Richard in his realm with a double crown
of gold, though subject to an annual tribute of L15,000--a business
transaction painfully illustrative of the Christian chivalry of the
Crusades.
The annals of Scotland boast one instance of a royal symbol much more
regal than either of these two. About the beginning of the year 1124, King
Alexander I., restoring by charter to the Bishopric of St. Andrews an
extensive tract of land, completed the grant according to Andrew of
Wyntoun (vii., 5), in a truly stately fashion. He--
Gert than to the awtare bryng
Hys cumly sted off Araby
Sadelyd and brydelyd costlykly
Coveryd with a fayre mantlete
Off precyous and fyne welvet
Wyth his armwris off Turky
That pryncys than oysid generaly
And chesyd mast for thare delyte
Wyth scheld and spere off sylvyr qwhyt.
It was a special occasion, for Bishop Robert's appointment, which had led
to the grant, was a Scottish victory over the pretensions of the See of
York. There is an appeal to the imagination so strong in the scene, that,
in spite of the interval of 300 years betwixt the event and this oldest
record of it, one is slow to offer any criticism on the charger; more
especially as the entire verity of the silver spear is corroborated by
Walter Bower's enshrining in his Scotichronicon the fact that in the
fifteenth century it was doing duty as the shaft of the cross in the
Cathedral. Yet the unexampled symbol, coupled with the analogy from York
in 1175, compels the suggestion, that perhaps during these 300 years an
original _capellus_ have been mis-read as _caballus_, or mistaken for
Scottish _capul_, and thus by the magic of mistranslation, a king's cap
_may_ have been transmuted into an Arab steed.
Whilst of course a crown was the standard symbol of investiture for a
kingdom, inferior rights of principality were often typified by other
things, such as a sword, a spear, or a banner. And as feudal forms were
observed in the bestowal, so were they sometimes in the taking away.
England dispensed with several of her monarchs, but apparently in no case
was a deposition attended by the feudal solemnities. In Scotland when, in
1296, King John Balliol was pulled out of the throne by the same hands as
had placed him in it, Edward I. spared his vassal little of the indignity
of the situation. Balliol, deprived of his royal ornaments, with the
ermine stripped from his tabard, resigned his realm by the symbol of a
white wand.
Than this Jhon tuk a quhyt wand
And gave wp in till Edwardis hand
Off this Kynryk all the rycht.
No Scottish historian has noticed the absolute legal propriety of this,
and it is worth noticing. By contemporary law (_Britton_, ii., 22), _une
blaunche verge_ was the recognised symbol of disseisin by consent. The
thirteenth century was very particular, even in small things, about its
law. _Disseisin_, provided for by statute of 1429, in disputed successions
to real property, and known to Scotland as the breaking of seisin, was
symbolically affected--_frangendo discum_--by the curiously expressive act
of breaking a dish or dishes, with fire underneath.
Law under the Feudal System.
BY CUMING WALTERS.
To the historian proper feudalism presents a wide subject with diverse
points of interest, but its legal aspect is comparatively a small matter,
and it can be considered without detailed reference to the whole vast
scheme which existed from early German and Gothic times, and overspread
the greater part of Europe. It is a common error to suppose that it was
introduced into England by the Normans. William the Conqueror only
superimposed a French form of feudalism upon that which already existed;
and all historians agree that the measures he adopted, the restrictions he
made, and the original conditions he established, were evidence of his
farseeing genius, and a masterpiece of statecraft. His was a feudalism
which, while giving the lords great personal power and influence, retained
them still as the servants of the king, and totally prevented them from
using their strength against the throne. In this respect the feudal
system in England never resembled that of Germany and France, or even that
which the Norman barons established in Scotland. The Conqueror had no
intention of allowing the owners of territory to supersede his own
authority, and to be beyond the sovereign's control. While, therefore, he
allowed them all liberty in dealing with their dependents, he made it
impossible for them to defy his own authority, first by distributing their
possessions so that they could not have a great army of followers at
command, and, secondly, by insisting upon a formal declaration of
allegiance from both the barons and their vassals. The former, therefore,
were not beyond the law, and the latter had nominally, if not actually,
some right of appeal to the monarch. These points it is necessary to bear
in mind for a full understanding of legal procedure during the long period
feudalism prevailed.
The feudal lord's claims upon his vassals were numerous. First came his
claim to their military service. He could demand from them service as
assessors in his courts of various fines and payments and confiscations of
land. He could dispose of females in marriage; not infrequently he
consigned them to a debased existence. When the tenant was invested with
possession of his feud or fief, he paid homage to his lord, that is, he
proclaimed himself the "man" to help and to serve his master. Kneeling
humbly before the baron, he took oath of fealty, and practically enslaved
himself. It was here that King William showed his wisdom by ordaining that
the oath of allegiance should be not only to the feudal superior, but to
the monarch as the head of all, and thus he secured the ultimate service
of all vassals to the crown, and deprived the barons of autocratic power.
The Saxon feudalism had been of the most tyrannical character, the owners
of slaves making their own laws, and carrying them out with the utmost
barbarism. Records exist which prove that for slight offences mistresses
were accustomed to order their servants to be scourged to death, or
subjected to fearful tortures. For breaking a dish, or spilling wine from
a cup, for example, a servant might have his ears cut off, his nose slit,
or suffer the loss of his hand, according to the caprice or fancy of his
lord or lady. While murderers and robbers could find sanctuary in the
Church, servants had no such refuge. They were torn away from the altar
to which they clung in their terror, and none could or would intervene to
protect them. According to the decree of King Ethelred, public punishments
were to be mild, and death sentences were seldom to be passed; but the
sovereign's wishes had no effect upon the treatment of bondmen. High-born
women were as cruel as their husbands, and King Ethelred's own mother is
said to have beaten him so severely when he was a child that he regarded
whipping instruments with horror to the end of his life. Flagellation was
not recognised as a legal punishment by the Saxons, though a husband might
beat his wife and incur no penalty, while the whipping of slaves was
accounted no more than the whipping of animals, and perhaps less. For all
other classes money-fines were almost the only authorised penalty, a fixed
price being set upon persons of different degrees. But the slave had no
real value, and hence could be mutilated or killed at the pleasure of his
lord.