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Title: Legal antiquities
A collection of essays upon ancient laws and customs
Author: Edward Joseph White
Release date: April 11, 2025 [eBook #75835]
Language: English
Original publication: St. Louis, Mo: The F. H. Thomas law book co, 1913
Credits: WebRover, Tim Lindell, Turgut Dincer and the Online Distributed Proofreading Team at https://www.pgdp.net (This file was produced from images generously made available by The Internet Archive/American Libraries.)
*** START OF THE PROJECT GUTENBERG EBOOK LEGAL ANTIQUITIES ***
LEGAL ANTIQUITIES
A COLLECTION OF ESSAYS UPON
ANCIENT LAWS AND
CUSTOMS
BY
EDW. J. WHITE
Editor Third Edition “Tiedeman, on Real Property,” Author
of “Mines and Mining Remedies,” “Personal Injuries On
Railroads,” “The Law in Shakespeare,” Etc.
PUBLISHED BY
THE F. H. THOMAS LAW BOOK CO.
ST. LOUIS, MO.
1913
Copyright, 1913
by
EDWARD J. WHITE
NIXON-JONES PRINTING CO.
ST. LOUIS, MO.
TO THE MEMORY OF MY
MOTHER,
WHOSE FAITH IN HUMANITY MADE HER ALWAYS CHARITABLE FOR THE FRAILTIES OF
THE PAST AND HOPEFUL FOR THE FUTURE; WHOSE TENDER DEVOTION, SACRIFICES
AND ENCOURAGEMENT ARE THE DEAREST RECOLLECTIONS OF MY LIFE, THESE PAGES
ARE AFFECTIONATELY INSCRIBED.
TABLE OF CONTENTS.
CHAPTER I.
Marriage Laws and Customs.
CHAPTER II.
Witchcraft and Sorcery.
CHAPTER III.
Recall of Judges.
CHAPTER IV.
Trial by Battle.
CHAPTER V.
Trial by Ordeal.
CHAPTER VI.
_Peine Forte et Dure._
CHAPTER VII.
Wager of Law.
CHAPTER VIII.
Benefit of Clergy.
CHAPTER IX.
Privilege of Sanctuary.
CHAPTER X.
Ancient Punishments.
CHAPTER XI.
Wills, Quaint and Curious.
INTRODUCTION.
In this age of ours, distinguished principally for the variety of the
inventions and the fast and furious pace at which we move; when the motto
of the Captains of Industry, being paraphrased, is simply, that “Motion
means Money”; when the politicians vie with each other in their attempts
to cater to every passing popular fantasy and the great mass of the
citizenship is too much engrossed in the commercial life of the day, to
study or analyze the history of our institutions, but the demand of the
times is for continuous change, in keeping with the moving spirit of the
age, it is advisable that we should occasionally stop and consider the
lessons of the past, lest we forget some of the valuable information of
antiquity.
There was perhaps never a time, in the history of our country, when the
general feeling of individual unrest has brought about such disrespect
for our existing institutions.
The development of the great body of our law, from the brutalities of
a barbarous period, with the ever changing ideas of civilization, to
meet the needs of the people, and the higher standards obtaining, has
been gradual but certain. In so far as we have actually progressed,
therefore, we should be satisfied with the progress made and should be
slow to return to the customs or remedies which a past civilization found
unavailing, lest all our progress should prove but a dim phantom of the
imagination.
A profitable lesson can oftimes be gleaned from a study of the past and
when an innovation demanded is one that experience has proven fallacious,
it is puerile to refuse to profit by this lesson, for even “a burnt
child” will avoid the fire.
Undoubtedly much of the remedial and substantive law of our period needs
revision, to the end that simplicity may be attained and the interminable
delays, resulting from the present practice, incidental to too many new
trials and other objectionable methods, obviated. But this revision
should be cautiously made, so as not to impair the efficiency of the
great body of the law that the wisdom of the past has demonstrated to be
thoroughly consistent with the individual and national welfare.
The first attempt to simplify procedure in the United States, by the
adoption of the New York Code, was only sixty-five years ago and a
majority of the States adopted such legislation since the Civil War. The
common law practice was greatly improved and simplified by this concerted
action of the States and unquestionably there are many things that can
yet be improved in the remedial procedure of the present day.
But the prevalent idea that an increased volume of statute law
will furnish a panacea for all existing evils, is radically wrong.
The beneficent rules of conduct, crystallized into law, by custom,
because consistent with the needs of the people, in the evolution of
civilization, should be jealously preserved against the unscientific
fragmentary legislation, too often reflecting the unjust and unequal
demands of an aroused public sentiment, shaped by designing politicians,
rather than by the “cool examiner of the public pulse,” prompted by
beneficent objects.
Legislation, of course, is the simplest way of modifying or repealing
law, but legislators, in our country, frequently act without adequate
information or legal training and the most salutary rule of conduct, in
such hands, might be supplanted by the most unequal and unjust law.
All that is old is not necessarily good, but just because it is old,
is not a sufficient reason for discarding it. Legislation may become
as limitless as the imagination of the legislator and unless properly
advised, it would be inimical to the interests of the State or Nation.
When legislation is advised by any considerable number of the leaders of
any political party, which history has shown in other countries to have
been productive of the most deplorable consequences, then it is time to
leave the issues of the present long enough to study the lessons of the
past.
In conning the “Marriage Laws and Customs” of past ages, we can, in
some measure, congratulate ourselves that our Marriage Laws are better
than those of the past centuries, yet when we consider the large class
of “Predestined Lost” ones, born as a result of diseased and mismated
marriages, and when we give but a cursory examination to the divorce
statistics, we can see that we have grave need for better laws on this
most important of all subjects, the regulation of the relation, through
which the standards of citizenship are controled.
The Witch-Craze, in Europe and America, which resulted in the wholesale
slaughter of innocents, through a blind faith by the Courts, in
the popular standards of the people, whereby unprovable offenses,
were permitted to be established in utter disregard of the rules of
evidence, and a vacillating, dependent judiciary helped for centuries,
to perpetrate the most intolerable outrages against civilization,
illustrates the necessity of an absolutely independent judiciary, free
from the dominating influence of the frenzy of the public and a constant
adherence to the rules of evidence and the proper legal ideals, in the
administration of the law.
The Judicial Recall, as we see it in ancient history, is another of the
present popular fantasies to be avoided. Hammurabi tried this system
2,500 years before Christ’s time, when witches were convicted according
to their ability to swim a torrent and surgeons were mutilated, by the
loss of a hand, for an unsuccessful operation. It was also tried in
ancient Athens and because of some unpopular decision, the “most just
Judge” of that city, Aristides, was recalled, and some votes were cast
against him, because the voters were simply tired of hearing him called
“The Just.” Aristotle’s evidence is to the effect that this law brought
about the most deplorable consequences, in Greece, Persia and other
antique nations, where it was in vogue. The old Anglo-Saxon practice
of preferring the charge of “False Judgment” against the judge whose
decision was challenged, who was recalled, if this charge was sustained,
was found inimical to the interest of the Government and since the
English Judges were emancipated from the narrow groove of an unskilled
public sentiment and were appointed for life, the majesty of the law has
been revered in no other country on the face of the earth, as it has
been in England. This is testimony worth considering, for, judging the
future by the past, if this practice undermined the judicial institutions
of other countries, it would also undermine our own judicial system and
ought to be avoided. The demand, by the ill-formed, for the destruction
of the independence of the Judiciary, in utter disregard of the lessons
of the past and the wisdom of our fathers, should be considered,
therefore, along with this object lesson furnished by ancient history and
by penetrating into the records of the past centuries, it will be seen
that to adopt such a law would mean to return to the “Leges Barbarorum”
of the past.
In the discharge of their impartial functions, the judges of the people’s
courts, have nothing to do with popular standards; it is with right and
wrong, according to the just and equal standards of the law that they
have to deal and it is as true to-day, as when the patriarch Moses,
admonished the judges of ancient Israel, that, in the prerogative of the
judgment-seat, “Thou shalt not follow a multitude to do evil; neither
shalt thou speak in a cause to decline after many, to wrest judgment.”[1]
The work of the judges is in private places; they have no favors to
bestow, no rewards of office to distribute. It is frequently the business
of the charlatan to misconstrue and misinterpret their ablest judgments
and as the courts are the final repositories of the people’s rights,
when the public clamor is the loudest for the sacrifice of individual
right, then the true judicial character performs its highest office, in
withstanding all assaults by the ill-informed, upon the ramparts of the
Temple of Justice.
With the wide-spread demand for the “judicial recall” we find the true
modern standard, in this regard, reflected in the recent strong language
of an upright Texas Judge, who, in the course of his opinion, observed:
“I have made it the rule of my judicial life, and shall
continue to do so, while invested with the authority pertaining
to the office I hold, to decide questions as I understand them,
after as careful an investigation as my capacity affords,
without reference to what public opinion may be. I do and
shall continue to regard the law as superior to the ebullition
of outraged feeling, when communities are shocked by crime.
When cases arising under such circumstances, have reached this
court, my voice and my vote shall, in the future, as in the
past, be given for the upholding of the law, not bending it to
public sentiment. The stability of the institutions of this
government depends upon adherence to the law, as it is written,
and not on the fluctuating strenuousity of eruptive ebullitions
of popular sentiment.”[2]
This course alone is consistent with the attainment of the just idea
of government, by the judicial department, and peculiarly of this
department, because the ideals of the unskilled are not always consistent
with the standards of scientific jurisprudence. A subservient judiciary,
dependent upon the vacillating ebullitions of an unstable public
sentiment would bring about a subversion of the important functions of
this department of government, just as it did when popular sentiment
controlled the incumbents of the judgment seat, in ancient Babylon, in
Greece and in the England of old Anglo-Saxon days.
“Trial by Ordeal,” “Trial by Battle,” the dreadful “_Peine forte et
dure_,” and “Wager of Law,” are all instructive procedures of a past
civilization, from which important lessons can be drawn.
“Trial by Ordeal,” “Trial by Battle” and “Wager of Law,” as institutions
of a primitive people, struggling for right, are but expressions of a
misguided and abortive effort to attain correct judicial ideals, by
false and inaccurate standards. Before the evolution of the race had
attained to the ideals, when tribunals for the trial of questions of
right and wrong, according to the actual facts in each concrete case,
had been established, such issues were determined by the ability of
the accused, in criminal cases, or the appellee, in civil suits, of
a certain character to accomplish certain ordeals, requiring almost
superhuman strength or fortitude, or to withstand, by individual combat,
the strength of the opposite party to the issue waged. Of course, with
such ideals, might alone controled the right and by the “Wager of Law,”
the other alternative used in the quest for right, the popularity of
the principal or his ability to secure oath-helpers, to assist him in
swearing away the given crime or debt, resolved the conclusion upon a
given issue, into a simple question of the elasticity of the consciences
of the principal and his friends, who were always able to win their
cause, after issue waged, by a sufficiently strong and an adequate number
of oaths.
On the abolition of the “Ordeal,” in the thirteenth century, when the
accused, in a criminal charge, refused to submit to a “Trial by Battle,”
the courts were unable to force a plea, without some amendment of the
procedure and adroit criminal lawyers, for some years, availed themselves
of this subterfuge, of having their clients stand mute and refuse to
plead, when their conviction of felony would be certain to result and the
courts found themselves helpless to avoid a condition, which resulted
in the crowding of the jails and prisons, with prisoners, afraid to
submit to the “Trial by Battle” and refusing to plead to the indictments
filed against them. This, in time, brought about the greatest judicial
severity in the case of prisoners standing mute and finally the practice,
in all such cases, came to be to apply a heavy weight upon the chest of
the accused and to literally “press him to death,” if he persisted in
his obstinacy. For centuries, in England, this custom continued, and
thousands were “pressed to death,” for standing mute, when arraigned
upon a criminal charge. The same practice was followed in the witch
persecutions in this country, in the seventeenth century and when we
consider that these abominable customs obtained, until the past century,
we are, indeed, to be congratulated that our present procedure, with
all of its imperfections, has risen to the standard where it is able to
reject such inhuman and barbarous practices.
The “Benefit of Clergy” and “Privilege of Sanctuary,” illustrate the
attempt of the Church to mollify, as it were, the cruelties resulting
from the harsh administration of the criminal laws of mediaeval times, in
England, by the secular courts and had it not been for these beneficent
institutions—which were frequently utilized to protect criminals of the
worst sort—there would have been no alleviation for the sufferings of
the accused, and the large number of innocents who embraced the plea
of Clergy, or sought the sacred precincts of the protected Sanctuary,
would, along with the guilty, have paid the penalty for living in a dark
and benighted age, unable to protect the innocent from the power of the
mighty, when accused of wrong-doing.
When we read of the “Ancient Punishments” of the past centuries, we can
but feel a satisfaction that the struggle of our English forefathers
of mediaeval times, by herculean efforts against those in authority,
adopted such fixed principles of constitutional law, as we find reflected
in _Magna Charta_, and the various constitutions of our own country,
preventing “cruel and unusual punishment.”
Those so fortunate as to avoid the punishments of the past centuries,
when death lurked in every charge filed against the poor and oppressed,
must have felt a sort of consolation in being able to run the gauntlet of
such barbarities and delusions, and to die a natural death, and this is
no doubt why we find such evidence of jocularity, mixed with a strain of
pathos running through the “Quaint and Curious Wills” and testaments of
antiquity.
Some of the great painters of modern times, such as the late Sir Lawrence
Alma-Tadema, have depicted scenes upon the canvas, in such manner as to
make antiquity to live again before modern eyes—to resurrect, as it were,
the men and women of the past centuries and to infuse new life into their
bodies—so that they seem to again assume real form and being.
This comes from a close study of the subjects and a genius, almost akin
to a divine gift. No such gift can aid the lawyer, or did in this
instance, who seeks to reproduce pen pictures of the antique proceedings
of the past, but study of the subject is of course essential to give any
tolerable idea of the obsolete laws and customs of other days.
A keen interest in these old proceedings prompted a somewhat painstaking
study of many antique volumes, as a basis for the presentation of the
following pages, but the duties of a quite busy professional life have
prevented the exhaustive investigation that would otherwise have been
given the subjects treated.
The sources of the information used in the different essays appear in
notes and references throughout the work and it is to be hoped, if the
usual modicum of instruction may be lacking, that some of the interest
felt by the author, in tracing the old laws and customs of previous ages,
may, in a measure, be shared, by the reader, who is kind enough to peruse
the work.
Not nearly all the learning or the law upon any one of the subjects
presented, will be found set forth in the different paragraphs pertaining
to the various subjects introduced, but a general outline of each topic,
with frequent illustrations from concrete cases, will appear.
None of the many legal antiquities of the Grecian States or the Roman
Empire, which could be so profitably discussed, have been attempted, but
only a few of the antique English laws and customs that have particularly
attracted the attention of the author. These several subjects were all
given cursory examinations in the preparation of the data for “Law in
Shakespeare” and the superficial investigation in connection with that
work, led to the more minute treatment herein. This is the apology for
the undertaking and the engrossment of professional duties is the excuse
for the limited scope of the treatment accorded each subject.
With the era now existing, these old issues and customs are dead and
buried out of sight and we would not be mad enough to revive them, if we
could. They played no unimportant part, however, in the pathetic drama
of the evolution of the race and we ought to erect monuments to their
memory, as it were, and occasionally wander back to scatter flowers upon
the monumental shaft, without deserting the live issues and duties at
present confronting us.
When we contemplate the lessons of the past, as presented in these “Legal
Antiquities,” we can but realize the plain truth, expressed by William
Knox, that “We are the same our fathers have been,” for if we had lived
and moved and had our being in the dark days when these customs obtained,
we would have considered them in the same light that our fore-fathers
viewed them and this should make us charitable toward these frailties
and mistakes of the past; we should be comforted with the reflection
that such institutions are but mile-stones of the centuries, marking the
rapid progress of the race, but when we read of these customs of the men
and women of antiquity, we can but realize the truth of the words of
Longfellow, that
“... the world is very old,
And generations pass as they have passed,
A troop of shadows, moving with the sun.”
FOOTNOTES:
[1] Exodus, XXIII., 2.
[2] Judge Davidson, of Texas, in Ex parte Martinez, 145 S. W. Rep. 959,
1023.
CHAPTER I.
MARRIAGE LAWS AND CUSTOMS.
The term marriage was defined, in the Institutes of Justinian, as the
lawful union of a man and a woman, including an inseparable association
of their lives.[1]
Written almost fourteen centuries ago, few, if any, of the many
definitions of marriage, improve upon that given in the Institutes of
this old philosopher-lawyer-Emperor of the Romans.[2]
As the basis of the marriage contract is the necessity of society for
some rule for the appropriation of the opposite sexes to one another and
the protection of that relation, when once established, it is in one form
or another, the oldest institution of man and the source of our most
antique laws and customs.[3]
The Chinese inform us that in the beginning, human beings, like other
animals, without morality or community laws, wandered through the
plains and forests, using their women in common; that the offspring
of such unions knew their mothers, but rarely knew who their fathers
were and that this custom continued among men, until the Emperor Fou-hi
established the marriage custom.[4]
While the ancient “Heathen Chinese” were thus holding their women in
common, there is evidence that among the old Teutons and Hindus, the
“marriage by capture” and “rape marriages” were still recognized by law,
long before the “bride-sale” or “sale marriages,” so generally obtaining
in ancient Assyria and Babylon, were established in Germany.[5]
Some historians claim that, in the early days of heathenry, capture was
the only method used by young men for securing their brides and the
supply of consorts depended upon the strength of the male, rather than
the existence of “the tender passion.”[6]
But the pictures of violence obtaining in these ancient days of heathenry
are so obscured by the mists of the past and such a large field is left
for the construction of ingenious theories, surrounded by romances of
connubial bliss, resulting from this early custom of primitive society,
that notwithstanding the general popularity of the theory of “marriage by
capture,” some of the most eminent authorities are inclined to deny that
such a custom ever existed at all.[7]
Some writers maintain that the rights of the individual were never more
clearly defined in marriage, than by primitive man, and that this is in
accord with the common tendency of the male, to attribute a religious
meaning to the ordinary intercourse with woman.[8]
The Biblical theory of the custom, dates from the command to our first
parents, in Genesis: “Be fruitful, and multiply and replenish the
earth.”[9]
In the beginning, we find that from the rib, which the Lord had taken
from Adam, he made a woman “_and he brought her unto the man_.”[10]
From Christian testimony, we have the evidence of the first book of
Moses, upon the antiquity of this institution, for when Shechem, the son
of Hamor, after defiling Dinah, the daughter of Leah, longed for her, in
marriage, his father went to Jacob and his sons and communed with them,
saying: “The soul of my son Shechem longeth for your daughter; I pray
you give her him to wife. And make ye marriages with us, and give your
daughters unto us and take our daughters unto you.”[11]
So according to the Bible story, we find that the institution of marriage
obtained seventeen centuries before Christ and these old patriarchs were
plighting the troth of their son and daughter and talking of dowries and
marriage portions, much as the parents of the twentieth century youth now
arrange such matters.
There has always been three principal forms of marriage, from the
earliest historical times, monogamy, or the marriage of one man to one
woman at a time, polygamy, or the marriage of one man to several women at
the same time, and polyandry, or the marriage of one woman to two or more
husbands at the same time.[12]
Since the days of our first parents, according to the Bible story,
monogamy has been the institution best suited to the progress of society
and the proper evolution of the human race, for the most progressive
nations of the world’s history have embraced monogamy as a rule of social
conduct.
The old Hebrews, however, made wonderful strides while practicing
polygamy, an institution established by Lamech, in the sixth generation
after Adam, which grew apace with the progress of the race, until in
Solomon’s time, the king had acquired a round thousand women, from the
different nationalities of the world, seven hundred princesses as wives
and three hundred concubines.[13]
Polygamy was also practiced in Persia and is to-day, in Turkey and other
Oriental countries, but under Roman rule it slowly died out in the east.
It was prohibited by Diocletian and other preceding Emperors and except
in the single instance of the Mormons, in Utah, it has never reappeared
in any countries subject to either the Roman or Teutonic laws.[14]
Polyandry no doubt had its origin in unfertile regions, in the endeavor
to limit the population to the resources of the district; it is almost
an obsolete custom, but is still practiced in parts of India, Thibet and
Ceylon.[15]
The marriage customs of the Romans furnish the basis for the marriage
laws of the civilized world, and even the Hebrew and Teutonic influence
is small compared to that exerted upon this institution, by the Roman
law. The general conception of the marriage relation, by the Romans, was
an exalted one, as it was regarded as an equal partnership in the whole
of life, effecting an equal distribution in both the secular and sacred
rights of the individuals.[16]
The three forms of marriage, by the early Roman law, were (1)
_Confarreatio_, consisting of a religious ceremony, ending in the
sacrifice of an ox, and the distribution of a broken wheaten cake,
by a priest; (2) _Coemptio in manum_, a conveyance or formal sale of
the woman, to the man, and (3) _Usus_, or the right of a wife, by
prescription, arising from the cohabitation of the wife with the husband,
for one year, without an absence for over three consecutive nights.[17]
If the woman lived with the man without either the religious ceremony
or the formal sale, she did not become his wife, unless she had lived
with him for a year, without absenting herself for three consecutive
nights.[18]
This latter form was called “passing into the hand” of her husband and
until this Hand power had been created, the property rights of the wife
remained unaffected by the marriage. Marriages with Hand in an early day
were almost universal, however, for the women did not prefer the free
marriage, which would place them, in law, outside the legal family of the
husband.[19] Marriages within the Levitical degrees were prohibited by
the early Roman Emperors, and while first cousins might lawfully marry,
until the end of the Republic,[20] the Emperor Theodosius prohibited
their marriage under pain of death by burning.[21]
Uncles and nieces and aunts and nephews were prohibited from marrying,
until the period of the Emperor Claudius, who desired to marry his
brother’s daughter, Agrippina, and so passed a decree of the Senate
allowing such a marriage.[22]
Concubinage was a “permitted connection,” under the Roman law, from the
earliest times, down to the period of the philosopher Emperor, Leo, A.
D. 887 when it was prohibited by law.[23] The Justinian Code recognized
the legality of the relation and fixed the legal and property status of
the concubine and her progeny and various Christian Emperors, in the
early days of the Empire passed laws regulating the relation known as
_Concubinatus_.[24]
The woman was left in the same relation as the law found her; she was not
raised to the level of the husband and while her children were entitled
to support from the father, they were not legitimate, but could inherit
from the mother.[25] Under the Roman law, however, children born in
concubinage, could be legitimated by the subsequent marriage of their
parents,[26] and this early Roman law was the foundation for the custom
obtaining in England, France, Germany, Normandy and Scotland, prior to
the Norman Conquest, of legitimating the children born out of lawful
wedlock, by the subsequent marriage of their parents. At the wedding of
a couple having children prior to their marriage, it was the general
custom, in the countries named, to place the children under a cloak,
or mantle, which was also spread over the parents, and the children of
such a union were thereafter known in the law, as “mantle children,” to
distinguish them from children regularly born in lawful wedlock.[27]
According to Selden, this ceremony was observed, in England, when the
children of John of Gaunt and Catherine Swinford were legitimated by
Parliament,[28] and in Normandy, Duke Richard espoused Gunnora, “in
Christian fashion,” and “the children were covered with the mantle.”[29]
Neither the ancient Hebrews, Greeks, Mohammedans or Romans, regarded
marriage as a religious ordinance, but the relation could be established,
according to the laws and customs of all these ancient people, by the
interchange of consent.[30]
In Cnut’s time, in England, we find that he made laws to prevent the sale
of a woman to a man whom she disliked,[31] but even at this stage of
English society, the church approved these sale marriages and condoned
the old betrothals of the Anglo-Saxons, and preserved the forms of
ceremonies which still constitute the curious cabinet of antiquities of
the English church.[32]
The early Christian church, however, did not treat marriage as a
sacrament; the doctrine that marriage was a sacrament was evolved from
the Fifth Chapter of the Epistle of St. Paul, to the Ephesians and it was
not until the Council of Trent, in the year 1563 that the Roman Catholic
Church required the celebration of marriage to be accompanied by a
religious ceremony.[33]
In England, as early as the seventh century, the concern of the church
about all sins pertaining to the flesh, caused it to raise its voice upon
questions concerning marriage and divorce.[34]
By the middle of the twelfth century according to the laws of England,
marriage was held to appertain to the spiritual forum.[35]
In the memorable law suit of Richard de Anesty, in 1143, a marriage
solemnly celebrated by the church, and from which a child had been born,
was declared to be void in favor of a prior marriage, constituted by a
mere exchange of consenting words, without the formality of a religious
ceremony at all.[36]
Soon after this decision, Glanville acknowledged the jurisdiction of the
ecclesiastical courts upon all issues touching the validity of marriage
and because of the acknowledged inability of the king’s court to solve
the issue, where the legitimacy of a litigant had been raised, the canon
law was subsequently looked to in all such cases.[37]
In 1215, at the Council of Lateran, Pope Innocent III. extended to the
whole western portion of Christendom the custom of publishing “banns of
marriage,” calling upon all men to declare any just cause of impediment,
if any could be urged to the union and from this time on, marriages with
banns, had certain legal advantages over a marriage without banns, but
still the unblessed, formless marriage was a marriage, before the law.[38]
During the reign of Henry II., Alexander III. decreed that a marriage by
mere consent, in terms of a present, existing contract, would be given
precedence over a later marriage by another man with the same woman,
duly solemnized in religious form, and followed by physical union.[39]
It seems a strong case, to give effect to the bare consent, in present
form, “unhallowed and unconsummated” as against a solemn formal contract,
followed by a consummated union, yet this decree was consistent with the
ecclesiastical law, as interpreted from the middle of the twelfth century
until the Council of Trent, and no religious ceremony or the presence
of a priest was essential to constitute a valid marriage, before the
catholic church.[40]
In 1254 the interesting case of William de Cardunville, a tenant in chief
of the Crown, came before the court, upon an _inquisitio post-mortem_, to
determine which of two conflicting claimants was his rightful heir. He
had solemnly espoused one Alice, with whom he had lived for sixteen years
and had several children, the youngest being a son, four years old, named
Richard. Long before his espousel of Alice, he had lived with and had a
son by one Joan, and this son was also named Richard and was twenty-four
years old at the death of his father. Joan established a common-law
marriage, without the religious ceremony, and she was adjudged the
rightful wife of the deceased and her son, the first begotten Richard,
was awarded the livery.[41]
From an early date, the interpretation of the English Courts, as to
the validity of a marriage based upon a present mutual consent of the
parties, was followed in the United States, with the exception of
Massachusetts, Maryland, West Virginia and Kentucky.
In the year 1810, Chief Justice Parsons, then on the bench of the Supreme
Court of Massachusetts, rendered a decision, in which he denied that
according to the common law a valid marriage could be made, by the mutual
agreement of the parties alone.[42]
Chancellor Kent, however, in 1809, as Chief Justice of the Supreme Court
of New York, held that:
“No formal solemnization of marriage was requisite. A
contract of marriage, made _per verba de praesenti_, amounts
to an actual marriage and is as valid as if made _in facie
ecclesiae_.”[43]
This latter exposition of the common law of England has been generally
followed in the United States, and may be said to obtain, generally, in
all the states, other than those mentioned above, except where the local
statutes provide otherwise.[44]
Clearly, by the law of nature, marriage may be constituted by the mutual
present consent of two competent persons, of the opposite sex, without
other formality than the performed inclination of the individuals
concerned and so the common, or unwritten law, recognized the legality
of such a contract. The law of nature was adopted as the surest guide to
the law of man, in this relation.
Considerable uncertainty and some confusion resulted in England as to the
essentials of a valid marriage and the acts necessary to constitute a
marriage, prior to the eighteenth century, but during the reign of George
II., in 1753, a statute was passed,[45] requiring all marriages to be
celebrated by a clergyman and in a church, unless by special dispensation
by the Archbishop of Canterbury. This statute was repealed in 1836 when a
purely civil marriage before only a Registrar, was permitted by the law
of England, in lieu of the ecclesiastical ceremony.[46]
Touching the issue as to the validity of a marriage not solemnized by
religious ceremony, is the interesting and famous case of The Queen vs.
Millis,[47] wherein the House of Lords, erroneously decided that such a
marriage was void, according to the English law, in the year 1843.
The Irish Court of King’s Bench was equally divided upon the issue and
in the House of Lords, after the decision of the English judges had been
given against the validity of the marriage at which no clergyman had
been present, Lords Lyndhurst, Cottenham and Abinger were for holding
the marriage void, while Lords Brougham, Denman and Campbell, were in
favor of its validity, but on account of the precise form in which the
question was put to the House, the effect of the division was to hold the
marriage void, and thus a mere accident gave the decision in favor of the
erroneous view that from the earliest time in English law, the presence
of an ordained clergyman was essential to the celebration of a valid
marriage, when, as we have seen, from the decisions and history of the
law, this was not the case, either in England or according to the Roman
law, until the Council of Trent.[48]
But while both the temporal and spiritual courts recognized the validity
of marriages based alone upon mutual consent, followed by a physical
union, the religious ceremony in an early day, was held essential to
endow the wife with the right to the husband’s land. Bracton tells us
that the endowment can only be made at the church door, for while the
marriage may be contracted elsewhere, the bride can only be endowed at
the door of the church.[49]
This rule, however, was of course inconsistent with the recognition
of the validity of the marriage and both the ecclesiastic and temporal
courts went to the extreme limit to legitimize the offspring of
marriages, not the result of a wilful criminal relation. Retroactive
and putative marriages were recognized, both in the temporal and
ecclesiastical courts, when the legitimacy of children depended upon
such a construction and in cases where the parents had married within
the prohibited degrees of consanguinity, or if a woman, in good faith,
married a man already married and believed that he was single and had
children by him, the children would be held legitimate and capable of
inheriting, under the law.[50]
The courts, in order to legitimize the offspring of doubtful marriages,
went the full limit, in upholding the marriage relation from a very
early day, but the consort who abandoned her husband to dwell with her
adulterer, was written beyond the pale of the law. By an old statute, of
the reign of Edward I., a woman who eloped and abode with her adulterer
was punished by a loss of dower[51] and this statute was enforced, in the
case of William and Margaret Paynel, which originated in 1302.[52]
These parties petitioned the king for dower that was due the woman, as
the widow of her first husband, John de Camoys. It was charged that
Margaret had eloped with William and committed adultery with him. In
answer, William and Margaret produced a solemn charter, whereby her
first husband had “given, granted, released and quit-claimed” the said
Margaret to William. They also introduced evidence to the effect that
after they went to live together they had been charged with adultery in
the court Christian, and that by the oath of compurgators, among whom
were married and unmarried ladies and a prioress, they had successfully
met this charge and they offered to leave to the decision of a jury the
issue whether or not they were guilty of adultery in living together. The
court, however, in a lengthy decree, held that the facts on their face
constituted adultery and since no reconciliation of the first husband was
shown, the woman was not entitled to dower, under this statute.[53]
This illustrates the easy morality of the olden times, so contrary to
our present standards, touching the marital relation, yet this case
is not a parallel to many which could be cited in the golden days of
Greece and Rome. So little sanctity was attached to the marital relation
in Greece, even in the days of Pericles, that men were accustomed to
loan their wives to their friends and the literature of the period made
poetry of marital infidelity and fornication and adultery seemed about
the commonest employment of both individuals and gods and goddesses.
The Romans had more of the religious tendencies than the Greeks, but it
is said that the Younger Cato loaned his wife, Marcia, to the orator
Hortensius and took her back again, after his death.[54]
Such conduct seems almost unbelievable, because so contrary to the
natural moral instincts, yet the natural selection between two adults
of the opposite sexes, although in derogation of the rights of the
life-partner of either, seems hardly so depraved as the consent by the
natural parents, to the marriage of infants of tender years, which custom
was so prevalent in England and France in the past centuries.
During the middle ages, in England, the marriages of little children
were frequently arranged by their parents, for the purpose of avoiding
wardship and to prevent the children from forming improper attachments,
or to effect advantageous family connections for the parents.
History records that Thomas, Lord Berkeley, was contracted to Margaret,
daughter of Gerald Warren, Lord Lisle, in the forty-first year of Edward
III., when the girl was only seven years old, and because of her tender
years, it was stipulated that she should remain with her father for four
years, but on account of sickness in the family, they were married when
she was eight years old.[55]
Maurice, fourth Lord Berkeley, was knighted at seven years of age,
to prevent his wardship, and he was married at the age of eight, to
Elizabeth, daughter of Lord Spencer, when the bride was also but eight
years old.[56]
Hundreds of similar cases could be mentioned in France and England, and
in tropical countries, where the women develop at an earlier age, the
marriages occur at a corresponding earlier age. In Brazil, in the past
century parents married their children when still in years of infancy
and the case of a Brazilian traveler, enroute to England, who demanded
a half-fare ticket for his wife, who was under twelve years of age,
occurred in the year 1853.[57]
We are also told that the Hungarians of the seventeenth century often
betrothed their children while still in their cradles, and the marriages
were celebrated at the earliest possible age.[58]
The law, which can never rise superior to the prevalent sense of right in
a given community, recognized the validity of these child marriages, in
these several countries, just as it validated the “sale marriages” of the
old Saxon days[59] and in early feudal times recognized the validity of
exactions known as “Maiden-rent,” a sum paid to the Lord of the Manor,
in the nature of a fine, in consideration of his relinquishment of his
accustomed right of spending the first night with the bride of his
tenant.[60]
As the relics of a barbarous age, such licentious customs, like the
evidences of genius and depravity frequently found co-existent in the
same individual, are interesting from a historical standpoint, as
existing facts connected with the given institutions of a past age and
also because many of the ancient customs, in altered form, furnish the
basis for the later customs and practices, gradually changed, with the
passing years, to meet the different conditions and institutions of later
periods.
The custom of giving a dowry, or marriage portion, which has obtained
from an ancient period, is no doubt the result of the old practice of
paying for the wife in money, the presents, land, or sums paid by way of
settlement being a mere modification of the old sale and purchase of the
bride by the husband.[61]
In patriarchial days, we find Shechem, the son of Hamer, negotiating with
old Jacob and his sons, for the marriage of Dinah and he said unto them:
“Ask me never so much dowry and gift and I will give according as ye
shall say unto me; but give me the damsel to wife.”[62]
The _donatio propter nuptias_,[63] of the Romans, and the old marriage
dowry, the source of so much legislation and litigation in ancient
England, France and other continental countries, is traceable, directly
or indirectly to this old practice. Indeed, the oldest known laws treat
of the marriage dowry, as we find that the code of Hammurabi, written
2250 years before Christ provided for the return of the dowry, in case of
the divorcement of a barren wife.[64]
Money was given the bride, from an early day in France, and we find
that when Clovis married the Princess Clotilde, he sent, by proxy, a
sou and a denier, which became by law, the usual marriage offering, in
that country.[65] Caesar speaks of the marriage settlement, as a custom
he found to exist amount the ancient Gauls;[66] it obtained among the
Hebrews, at an early date[67] and has come to be a part of the marriage
laws of most of the civilized countries.[68]
Under the old Angle-Saxon law, dower could be assigned only at the church
door.[69] Speaking on this subject, Littleton says:
“When he cometh to the church door to be married there, after
affiance and troth plighted, he endoweth the woman of his whole
land, or of the half, of other lesser part thereof, and there
openly doth declare the quantity and the certainty of the land
she shall have for her dower.”[70]
Accordingly, we find, when Edward I. married Marguerite of France, in
1299, he endowed her at the door of Canterbury Cathedral, in order that
the gift could be witnessed by all the persons who had assembled to see
the marriage ceremony.[71]
Selden says that the use of marriage rings, grew out of the old custom
of giving the bride a dowry, the ring being given as a symbol of the
husband’s good will, in lieu of the dowry money, of previous days.[72]
However this may be, the custom of giving wedding rings to the bride
dates from an early period. We find that Isaac propitiated the favor of
Rebekah by presenting her with a massive ear-ring and two bracelets.[73]
The betrothal ring was used in ancient Rome, and the Christian church no
doubt adopted the wedding ring, from the pagan custom of the Italians, as
a convenient sign of marriage.[74]
In the ninth century the ring was used by the Romans for betrothal
purposes and not as an insignia of marriage;[75] it was used by the
Anglo-Saxons, on the betrothal of their infant children, the ring being
placed on the right hand, until the marriage, when it was transferred to
the left,[76] and thus grew the custom, until finally, it became a part
of the English law, that a wedding ring should be used at all church
marriages.[77] This custom is still retained by the Catholics, among whom
the ring is consecrated by the priest, sprinkled with holy water, in the
form of a cross and then returned to the bridegroom.[78]
The superstitions of olden times, which attached to the marriage
ceremony, as celebrated in the early days of “little knowledge,” as
some writers refer to the antique periods of the human race, are
also responsible for the present custom of throwing rice, old shoes,
stockings, bouquets, and such like practices, at marriages.
The custom of throwing rice was no doubt borrowed from the ancient
Persians, as rice was no inconsiderable portion of the marriage ceremony
in Persia.[79] Rice was considered an emblem of fruitfulness and the
contracting parties, after their betrothal, met at midnight, on a bed,
in the presence of two sponsors. The sponsor for the man, touched the
woman’s forehead and asked her if she would have the man; the same
ceremony was gone through with by the sponsor for the woman and the hands
of the contracting parties were then joined and rice was scattered over
them and prayers for their fruitfulness were offered.[80]
Rice also constitutes an important part in the marriages of the Hindus,
the Brahmins, Javanese, the inhabitants of Elba and is quite generally
used, in other European countries.[81]
The custom of throwing a shoe after the bridal couple, so generally
followed, in England, Scotland and the United States, as a token of good
luck, is directly traceable to the old Jewish law, making the shoe a sign
of renunciation of dominion or authority, as well as a symbol of exchange.
Thus, under the Mosaic law, the brother of a childless man was bound to
marry his widow and until he renounced his right, she could not marry
another. If refused, the woman was obliged to “loose his shoe from off
his foot” and “spit before his face,” as an assertion of her complete
independence.[82] The custom was followed, according to Bible evidence,
in the espousal between Ruth and Boaz, for “as it was the custom in
Israel concerning changing, that a man plucked off his shoe and delivered
it to his neighbor,” so the kinsman of this famous woman plucked off his
shoe and gave it to Boaz, as a token of his renunciation of Ruth and of
Boaz’s right to marry her.[83]
That this custom was later used by the early Christians, would seem to
be confirmed by the story connected with the proposal of the Emperor
Vladimir to the daughter of Raguald, for when asked if she would not
marry the Emperor, she replied: “I will not take off my shoe to the son
of a slave.”[84] And as a part of the betrothal, in the early Anglo-Saxon
days, we read that when the marriage was completed, the father of the
bride took off her shoe and handed it to the bridegroom, who touched her
on the head with it, as a token of the exchange and of his power over
her.[85]
Stocking throwing, at weddings, in England, has existed from a very early
day and is said to be purely a British custom.[86]
A letter describing the marriage, at court, of Sir Philip Herbert, in
1604, says that “at night there was sewing into the sheet, casting off
the bride’s left hose, with many other pretty sorceries.”[87]
In Fletcher’s Poems, written in 1656, is a verse descriptive of
Clarinda’s wedding, referring to this old custom:
“This clutter o’er, Clarinda lay,
Half-bedded, like the peeping day
Behind Olympus’ cap;
Whiles at her head each twitt’ring girle
The fatal stocking quick did whirle
To know the lucky hap.”
It is reported that this custom, as well as that of putting the bride
to bed, was followed at the wedding of Mary, Queen of Scots, to Lord
Darnley; that the same ceremony was gone through with, at the wedding
of Mary II. and the sedate Prince of Orange and that this custom was
followed at nearly all the marriages of the crowned heads during the
middle ages, in England, until George III. set aside the joyful custom of
“posset-drinking and stocking throwing,” on his wedding night.[88]
The common law liability of the community property of the wife and her
husband for the ante-nuptial debts of his wife, gave rise to a peculiar
custom, in England, known as “Smock-marriages,” or “Marriage in a
Shift.” This custom obtained from early Saxon days into the eighteenth
century and the debtor bride often came to the wedding arrayed only in
a plain white “smock” or “shift,” as a public declaration or warning to
her creditors that she took no property to her husband, as a basis for
charging him with responsibility for her debts.[89]
This eccentric custom, known as “marriage in a smock,” in England, under
which a widow was married with nothing on but a “shift,” or “smock,” upon
the theory that her second husband would thereby escape liability for the
debts contracted by her former husband, was also followed in the Colonies.
This notion that a bride who lacked modesty, as well as money could
throw off her debts with her dress, by going to church in her smock or
under garment and thus let her creditors “shift” for themselves, finds
many examples in the English cases during the seventeenth and eighteenth
centuries.
On October 17, 1714, Anne Sellwood, of Chilters, All Saints, Wiltshire
and John Bridmore, were united in the holy bonds of matrimony and against
the record in the parish register occurs the memorandum: “The aforesaid
Anne Sellwood was married in her shift, without any clothes or head-gear
on.”[90]
In 1766 a Whitehaven bride also sought to attain the same end, by going
to church, as became any decent woman, undressing herself to her sole
under-garment for the ceremony and donning her clothes again as soon as
the knot was tied.[91] And it is recorded that somewhere between the
years 1838 and 1844, a Lincolnshire curate officiated at a wedding where
the bride stood before him, enveloped only in a sheet.[92]
While such attempts evidence a perhaps dishonest effort to evade the law
of debtor and creditor, these “smock-marriages” nevertheless evince a
most laudable inclination on the part of such bold brides to save the
purse of their intended husbands, so while modern husbands would not
appreciate the entire return to this now obsolete custom, they would not
object to the effort of brides, while decently clad, in emulation of the
spirit evinced by these ancient dames of the “shift marriage” period, of
using their best efforts to spare the pocket-books of the men of their
choice.
Alice Morse Earle, in her interesting volume, “Customs in old New
England,” refers to a “smock-marriage” at Westerly, Rhode Island.[93]
The traveler Kalm also describes such a marriage in Pennsylvania, in
1748, where the bridegroom, with the proper spirit of chivalry, in order
to save the appearance of his bride and also his credit, met the bride in
her scant drapery, half way between her house and his own, well provided
with warm garments which he dressed her in, after formally announcing,
in the presence of the assembled guests, that the wedding clothes which
he placed upon her belonged to him and were only loaned to the bride,
especially for the occasion.
John Gatchell married Sarah Cloutman, while she was clad only in her
“shift,” or “smock,” in Lincoln County, Maine, in 1767,[94] and in
accordance with the popular opinion that the creditors of the bride’s
first husband could not follow her farther than the king’s highway, if
she was married only in her “shift,” many “smock-marriages” occurred at
York, Maine, as recorded in the early history of Wells and Kennebunkport.
The wedding of the Widow Mary Bradley occurred while she was clad only
in her “shift,” or under-garment, during the cold weather in the month
of February, 1774; she went to meet the bridegroom, thus thinly clad and
the minister found her with chattering teeth and shivering from the cold.
Her groom had not been as thoughtful as the Pennsylvania bridegroom, in
loaning her clothing for the occasion, so the gallant gentleman of the
cloth kindly threw his cloak around the freezing bride, to protect her
from the wintry blasts.[95]
In Hall’s “History of Eastern Vermont,” there is a graphic account of the
marriage of the Widow Lovejoy to Asa Averill. The widow was not even clad
in her “shift,” or under-garment, but appeared at the ceremony, in a nude
condition, hidden behind a curtain, in a recess of the chimney.
Mr. William C. Prime, in his interesting book, “Along New England Roads,”
gives an account of two such marriages that came under his observation.
He describes how the widow Hannah Ward, of Newfane, Vermont, was married
to Major Moses Joy, in 1789, while the bride, perfectly nude, stood in
a closet. She held her hand out of a diamond shaped hole in the closet
door to Joy, and the ceremony was thus performed, in the absence even
of “smock or shift.”[96] Immediately after the ceremony, however, she
appeared resplendent in her wedding garments, which the gallant Major had
provided for her, in the closet.
In the other marriage, according to this old custom, as described by Mr.
Prime, the nude bride left her room by a window, at night and standing on
the top rung of a high ladder, she donned her wedding garments and thus
abandoned the old obligations of her widowhood.[97]
One of the most curious variations of this custom, however, is the
account given, by Gustavus Vassa, of a “smock-marriage” which occurred
on the gallows, in New York, in 1784. A felon who had been sentenced to
death was about to be hanged, when he was liberated to wed a woman clad
only in her “shift.”[98]
This strange belief in gallows matches, that a condemned felon could
be thus rescued, by marriage to any woman who would take him from the
gallows, is placed by Barrington in the list of legal vulgar errors.
But, as suggested by a writer in Chambers Journal, under the subject
“Matrimonial Curiosities,” it seems doubtful if such a queer idea
could have taken possession of the popular mind, unless there was some
foundation for it, in the law.[99] It is perhaps but one of many such
customs, arising from some isolated case, wherein the Court recognized
it, which gave it currency and caused it to be followed in other
instances.
We are told that in 1725 a woman petitioned King George I., for the pardon
of a convicted felon, in order that she might wed him, under Tyburn
Tree.[100]
Manningham states that this was the custom, not the law, in olden times,
in France, and Italy, and that if any notorious strumpet would beg a
convicted felon, about to be hanged for her husband, her plea would be
granted, in order that their joint lives might be bettered by so holy an
action.[101]
Sterill reports a case that he had seen wherein a woman, clad only in her
smock, or under-garment, begged a condemned person for her husband, with
a white wand in her hand.[102]
Whatever recognition the law gave this custom, that it actually existed
in England, and France is evidenced by the many references to the
practice, in story and rhyme, published during the seventeenth and
eighteenth centuries.
Montaigne tells a story of a Picardian, who, seeing a lame dame advancing
toward him, cried out: “She limps, she limps, despatch me quickly.”[103]
The ballads of Roxburghe also tell, in rhyme, how a merchant of
Chichester, who had killed a German, after his sentence and last speech
upon the gallows, was wooed by no less than ten goodly maidens, who thus
addressed him:
“This is our law,” quoth they;
“We may your death remove,
If you, in lieu of our good-will,
Will grant to us your love.”[104]
But having left the fixed doctrines of the law governing the relation
between the opposite sexes, known as marriage, to enter into a study and
analysis of the vulgar errors in connection with this subject-matter, it
is high time to bring the chapter to a close.
Of course it was only attempted in this chapter to take a most cursory
view of the great subject selected and to present but a few of the many
laws and customs that have sprung up among the various peoples of the
earth, governing the relation whereby the opposite sexes, in accordance
with the law of natural selection, appropriate themselves to one another.
In the ultimate days, when human multiplication has done its work—when
man has become so populous that every square foot of ground upon the
known earth shall be covered by a man—the law of evolution will no doubt
have eradicated many of the present marriage laws and customs, based upon
a false public opinion, and the generation of the species will no doubt
be conducted along more advanced and scientific lines.
For the next few centuries, however, judging the future by the past,
the marriage relation will continue in the same crude and unscientific
condition that has controled it for the past five thousand years, so
we need not now concern ourselves about any “devastating torrent” of
children, but leave this vexed problem for succeeding centuries.
In the meantime, like visionary things, mere motes, the atoms known as
human beings, will continue to be brought into the world, as a result of
the unnatural laws and customs governing this natural relation,
“Still wondering how the marvel came, because two coupling mammals
chose,
To slake the thirst of fleshy love.”
Tossed into the “giant grasp of Life, like gale-borne dust, or wind-wrung
spray,” the son of man will continue to be “the toy, the sport, the waif
and stray of passions, error, wrath and fear.”
Empires have perished and nations have risen during the period covered
by the foregoing pages. Countless millions of human beings have lived
their little lives, with their tincture of lust; tasted, for a brief
space, the “joy in an armful of beautiful dust,” as a result of the
relation established by the laws and customs treated of in these pages,
and then “step by step, perforce, returned” to “couthless youth, wan,
white and cold, Lisping again the broken words, till all the tale be
fully told.” And thus, for successive ages to come, will the “moving
row of magic shadow shapes,” continue to come and go “Round with the
sun-illumined-lantern held, in Midnight, by the Master of the Show.”
FOOTNOTES:
[1] Institutiones Justinianus, written 527-529, A. D.
[2] Ringrose “Marriage Laws of the World,” p. 10.
[3] Tylor, “Early History of Mankind;” McLennan’s “Primitive Marriage.”
[4] McLennan’s “Primitive Marriage;” Ringrose, “Marriage Laws of the
World,” p. 7.
[5] Tacitus, Germania, c. 18; II. Pollock and Maitland’s History English
Law, 364; Johns’ “Babylonian and Assyrian Laws,” etc.
[6] We are told that this rude custom obtains today in “Far Cathay,”
Blackwood’s Magazine, July-Dec., 1887, vol. 42, p. 671.
E. J. Woods in his book, “The Wedding Day in All Ages and Countries,”
claims that the old Hebrew expression of “taking a wife,” arose from the
custom of capture, not common to the Israelites, but common to other
primitive peoples. (Vol. I., p. 9.) He quotes Plutarch, as authority for
the custom of the Spartans to carry off their brides by capture. (Vol.
I., pp. 40, 41.) Refers to the Rape of the Sabines (vol. I., p. 52),
the “Institutes” of Menu, as providing one of the forms of marriage
by capture, known to the four classes of India (vol. I., p. 124). He
claims that “the capture of women prevailed among the aborigines of the
Dekkan and in Afghanistan.” (Vol. I., p. 137) He maintains that “In New
Zealand and the Fejee and other islands of the Pacific, the custom of
capture of women for wives has prevailed from the earliest times of the
known history of those places.” (Vol. I., p. 191.) “The form of capture
is observed in the marriages of the Kalmucks, the Nogay Tartars, the
Mongols, of the Ortous, in Tartary, the Circassians and the people
generally of the Caucasus.” (Vol. I., p. 210.) He claims that marriage by
capture obtained in Poland, in the sixteenth and seventeenth centuries
(vol. I., p. 220), that the seizure of wives by force obtained in Ireland
(vol. II., p. 50), so if this record is true, since this custom is found
to obtain in these countries so late as recent historical dates, it is
not unbelievable that capture was the order of the early barbarous days
in our own and other countries.
[7] Fison and Howitt, _op. cit._ 259; Curr, _op. cit._ I., 108; Prof.
Tylor; McLennan.
[8] Crawley’s “Mystic Rose,” pp. 6, 147.
[9] Genesis, I., 28.
[10] Genesis, II., 22.
[11] XXXIV. Genesis, 8, 9.
[12] Ringrose, “Marriage and Divorce Laws,” p. 10.
[13] First Book of Kings.
[14] Bryce, “Marriage and Divorce,” III. Essays in Anglo-American Legal
History, 784, 785; Euripides, Androm., vv. 173, 180; Tacitus, Germania,
c. xvi. I.
[15] Ringrose “Marriage and Divorce Laws,” p. 11.
Monogamy was practiced by the Greeks and Romans as far back as our
records reach. Wood’s “Wedding Day in All Ages and Countries,” vol. I., p.
33.
Morganatic, or “left-handed” marriages, are peculiar to Germany. They
occur between men of superior and women of inferior rank and are
prohibited by the Royal Marriage Law of England.
Ringrose, “Marriage and Divorce Laws of the World;” Wood’s “Wedding Day
in All Ages,” vol. II., p. 8.
[16] Bryce, “Marriage and Divorce,” III. Essays in Anglo-American Legal
History, 797; Modestinus in Dig. xxiii, 1, 2.
[17] Ringrose, “Marriage and Divorce Laws,” p. 8. The Twelve Tables fixed
the period of three nights, to fix a previous custom, no doubt more
uncertain. Bryce, “Marriage and Divorce,” III. Essays in Anglo-American
Legal History, 788.
[18] _Ante idem._
[19] III. Essays in Anglo-American Legal History, p. 788.
[20] Tacitus, Ann. xii, 6.
[21] III. Essays in Anglo-American Legal History, 805.
Before the end of the Republic, the _confarreatio_ had practically
become obsolete and was regarded as an old world curiosity, although
formerly obtaining generally, in all patrician families. (III. Essays
in Anglo-American Legal History, p. 789.) The religious ceremony, used
at the marriage _confarreatio_, is described in Wood’s “Wedding Day
in All Ages and Countries,” where it is shown that the custom of the
“bride-cake” is directly traceable to the cake of wheat or barley, used
at this old religious ceremony. (“Wedding Day in All Ages and Countries,”
vol. 1, pp. 51, 52, 60, 61, vol. II., p. 224.)
[22] Tacitus, Ann. xii, 5, 7.
[23] III. Essays in Anglo-American Legal History, 807.
[24] Code Justinian, v. 27, 5, 6; _Nov._ xii, 4; _Nov._ lxxxix, 8.
[25] _Novella_, lxxxix.
[26] _Novella_, xii, 4; lxxxix, 8.
[27] II. Pollock and Maitland’s History English Law, p. 397; III. Essays
in Anglo-American Legal History, p. 808x.
[28] Selden, Diss. ad. Fletam, p. 538.
[29] Beaumanoir, c. 18, Sec. 24; II. Pollock and Maitland’s History
English Law, p. 398.
The law did not give the marriage any retroactive effect, by reason of
this custom of throwing a mantle over the children born prior to wedlock,
but the custom was recognized by the law, to the effect of legitimating
the children, in the sense that the act of adopting the custom was
equivalent to a legal adoption of the children, and in spreading
the cloak over the children, the law was willing to also spread its
protecting “mantle” over them and thus they became “mantle children,” by
force of both the law and this old custom of adoption. Although followed
in Germany, France and Normandy, this custom was refused judicial
recognition in the reign of Henry II. and Henry III. See Pollock and
Maitland’s History English Law, p. 398. But for illustrations of the
application of the custom in the countries above named, see Schroder’s
“Mantel-Kinder” of Germany, D. R. G. 712.
Discussing the subject of “mantle-children,” in his work “Wedding Day in
All Ages,” Wood says: “According to the Scotch law, the marriage of the
father and mother legitimatizes all children previously born, however
old they may be. An old saying is that ‘all children under the mother’s
girdle or apron-string’ at the time of the marriage, are legitimate. In
very early days children born before wedlock used to perform a part in
the marriage ceremony, by being placed under the veil or mantle of the
bride or the pallium of the altar, in which position, they received the
nuptial benediction. And instances have occurred in more modern times,
where premature offspring have been put under their mother’s apron, and
had the string tied over them during her marriage.” (Vol. II., pp. 74,
75.)
[30] Ringrose, “Marriage and Divorce Laws,” p. 8.
[31] Cnut, 74; II. Pollock and Maitland’s History English Law, 365.
[32] _Ante idem._
[33] Ringrose, “Marriage and Divorce Laws,” p. 9. We find from the
second chapter of the Gospel of St. John that Jesus, himself, attended a
marriage in Cana of Galilee, but performed no religious ceremony.
[34] II. Pollock and Maitland’s History English Law, 366.
[35] _Ante idem._ vol. I., p. 158; Letters of John of Salisbury, i, 124.
[36] _Ante idem._
Under the Twelve Tables, enacted B. C. 449, a marriage, in Rome, could be
contracted without any formality, by the consent of the parties alone.
Bryce, “Marriage and Divorce,” III. Essays in Anglo-American Legal
History, p. 786.
[37] Glanville, vii, 13, 14; Select Civil Pleas, pl. 15, 92, 109.
[38] II. Pollock and Maitland’s History English Law, p. 371.
[39] Compiliato Prima, lib. 4, tit. c. 6.
[40] II. Pollock and Maitland’s History English Law, 372.
[41] Calendarium Genealogicum, i, 57.
[42] Atlantic Monthly, for 1888, vol. 61, pp. 521, 527.
[43] _Ante idem._
[44] Atlantic Monthly, for 1888, vol. 61, p. 521.
[45] 26 George II., c. 33.
[46] Bryce, “Marriage and Divorce,” III. Essays in Anglo-American Legal
History, p. 815.
The statute of the 26’ year of George II., enacted that wedding banns
should be regularly published three successive Sundays in the church of
the parish where the parties were for the time residing. This statute
was passed to prevent the evils of the “Fleet marriages,” during the
year 1616, when the Rector of St. James was suspended and clerical men
living within the Rules of the Fleet, solicited passers-by for patronage
and celebrated marriage ceremonies in ale-houses and garrets, without
the publication of banns, or the existence of marriage licenses. Wood’s
“Wedding Day in All Ages,” vol. II., page 235.
[47] 10 Clark and Finley, 534.
[48] Pollock and Maitland, in their History of English Law, say that
this erroneous decision may have pleased the Lords, but the opposite
holding will be followed by historians of the middles ages. (Vol. II.,
p. 372.) And James Bryce, in his “Marriage and Divorce,” III. Essays
in Anglo-American Legal History, says that this “seems to have been an
erroneous” decision. (Vol. III., p. 815.)
[49] Bracton, f. 92, 304, 305; Note Book, pl. 891, 1669.
[50] Bracton, f. 63; Bliss, Calendar of Papal Registers, i, 254; Year
Book, 11-12 Edward III., p. 481.
[51] Statute West, II., c. 34; Second Inst. 433.
[52] II. Pollock and Maitland’s History English Law, p. 395.
[53] Rot. Parl. i, 140, A. D. 1302.
[54] Ringrose, “Marriage and Divorce Laws,” p. 9.
If the investigation of Edward J. Wood, in his book, “Wedding Day in All
Ages and Countries,” is accurate, the Eimauk, of Caubul, “lend their
wives to their guests”; “the Candyans, of the lower and middle classes
universally practice polygamy and also lend their wives to their guests”;
“the Keiaz, of the Paropamisan mountains of India, lend their wives, as
do also the people of Kamul”; the “Mpongmes, an African tribe, lend their
wives,” and “the Koryaks, who are polyandrous, and the Chukchi, in the
north-east of Siberia, lend out their wives, as do also the Aimaks.”
II. “The Wedding Day in All Ages and Countries,” pp. 97, 146, 151, 167,
237.
[55] Wood’s “Wedding Day in All Ages and Countries,” vol. II., p. 116.
[56] _Ante idem._, p. 116.
[57] Wood’s “Wedding Day in All Ages and Countries,” vol. I., p. 179.
[58] Wood’s “Wedding Day in All Ages and Countries,” vol. I., p. 221.
[59] II. Pollock and Maitland’s History English Law, p. 364; Tacitus
Germania c. 18. The old Babylonians and Assyrians held a regular market
day at a public place, for the sale of their daughters. (Wood’s “Wedding
Day in All Ages and Countries,” vol. I., p. 70.)
The custom of purchasing wives was known to the ancient Greeks and was
strongly opposed by Aristotle. The payment of money was frequently the
only form of marriage, in ancient Greece. (Wood’s “Wedding Day in All
Ages and Countries,” vol. I., pp. 33, 47, 51.)
In Syria every man paid a sum for his wife, proportionate to the rank of
her father. (_Ante. idem._, p. 72.)
The Arabians bought their wives as they did their slaves. (_Ante idem._,
p. 82.)
Burckhardt says that among the Bedouins, of Mount Sinai, marriage is a
mere matter of purchase and sale. (_Ante idem._, p. 85.)
And the same custom obtained among the Mohammedans, Javanese, Ethiopians,
Circassians, Ostiacs, a Tarter tribe, Laplanders, the ancient Germans,
Romans and French, as well as our early Saxon ancestors. (Wood’s “Wedding
Day in All Ages and Countries,” vol. I., pp. 90, 155, 174, 210, 214, and
vol. II., pp. 3, 173, 247.)
The custom of purchasing wives is perhaps derived from the old Salic law.
It was known to the ancient Jews, as well as the other nations above
mentioned and the custom of marriage portions and doweries is no doubt
the outgrowth of this old practice. (Wood’s “Wedding Day in All Ages and
Countries,” vol. II., p. 173.)
[60] Bouvier; Cowel; I. Reeves History English Law, pp. 369, 371. In
legal contemplation, a female was in the custody of the Lord paramount,
until she reached her majority, and then he was bound to find her a
proper marriage. His custody continued until her marriage, even after she
became of age and she could only marry with his consent. She was bound to
obtain the consent of the Lord, or lose her dower, but it was sufficient,
if she had the consent of the chief lord, to marry. The custom was based
upon the fealty which the husband owed the lord and since the woman lost
her inheritance, if she gave cause of forfeiture, the lord had it in
his power to exact anything of her, and hence the custom referred to in
the text, an exaction allowed by way of a punishment for the offense of
belonging to the frail sex, in an early day. Reeve’s History English Law,
vol. I., pp. 370, 371.
Shakespeare makes Cade refer to this old barbarous custom, in 2’ Henry
VI., when he says: “... There shall not a maid be married, but she shall
pay to me her maidenhead, ere they have it.” (Act IV., Scene VII.; White’s
“Law in Shakespeare,” Sec. 299, p. 326).
[61] Wood’s “Wedding Day in All Ages and Countries,” vol. II., p. 16.
[62] Genesis, XXXIV., 12.
[63] Smith’s Dict. Greek and Roman Antiquities.
[64] In the first known code of laws ever written, so far as our history
goes, in the old code of Hammurabi, King of Babylon, who reigned from
2285 to 2242, B. C., we find that doweries and marriage portions were
spoken of, just as in modern statutes, and it was provided that if a
childless woman should be returned to her father, he should return the
dowry, and if he did not the husband could deduct all the dowry from the
marriage portion and then return the marriage portion, the house of her
father.
Code Hammurabi, Secs. 163, 164; Johns’ “Oldest Code of Laws,” pp. 32, 33;
Johns’ “Babylonian and Assyrian Laws,” etc.
[65] Wood’s “Wedding Day in All Ages and Countries,” vol. II., p. 17.
[66] _Ante idem._, p. 18.
[67] Genesis, XXXIV., 12.
[68] Ringrose “Marriage and Divorce Laws of the World.”
[69] Selden.
[70] Coke, Littleton, 31.
[71] Wood’s “Wedding Day in All Ages,” vol. II., p. 16.
Shakespeare makes frequent reference to the marriage custom of giving
a dowry to the bride, in his various plays. Thus, in “Love’s Labour’s
Lost,” (Act II., Scene I), Boyet, in speaking to the Princess, refers to
Aquitaine as “a dowry for a queen;” King John tells Phillip of France,
that if his son shall love his daughter, “Her dowry shall weigh equal
with a queen.” (King John, Act II., Scene I.) Petruchio tells Katherine,
in “Taming of the Shrew”: “_Pet._ Your father hath consented that you
shall be my wife; your dowry ’greed on; and will you, nil you, I will
marry you.” (Act II., Scene I.) Gloster, in 1’ Henry VI., speaking of the
proffer of his daughter to the King, by the Earl of Armagnac, refers to
the “large and sumptuous dowry.” (Act V., Scene I.) And the poor Lear, is
made to ask the duke of Burgundy, in discarding his daughter, Cordelia:
“What, in the least, will you require in present dower with her?” (Act I.,
Scene I.)
White’s “Law in Shakespeare,” Sec. 66, pp. 95, 97.
[72] Wood’s “Wedding Day in All Ages,” vol. I., p. 25.
[73] Genesis, XXIV., 22, 53.
[74] Wood’s “Wedding Day in All Ages,” vol. II., p. 131.
[75] _Ante idem._ 130.
[76] _Ante idem._ 133.
[77] During the reign of George I. and George II., the wedding ring was
placed on the usual finger at marriage and then transferred to the thumb.
Wood’s “Wedding Day in All Ages,” vol. II., p. 134.
[78] _Ante idem._ p. 135.
[79] Wood’s “Wedding Day in All Ages,” vol. I., p. 94.
The Quakers and Mormons reject the wedding ring, because of its
heathenish origin. Wood’s “Wedding Day in All Ages,” vol. II., p. 135.
The wedding rings of St. Louis, of France; of Margaret, daughter of the
Earl of Warwick; of the wife of Duke John, of Sweden; of Martin Luther
and Catherine Von Bora, his wife; the ring given by Henry VIII. to Anne
of Cleves; that given by Phillip, to Queen Mary, and by Lord Darnley, to
Mary, Queen of Scots, are described in Wood’s “Wedding Day in All Ages,”
vol. II., pp. 145, 149.
Chaucer’s reference to the wedding ring, in his “Troilus and Cressida”;
Shakespeare’s mention of the gemmal ring, in “Midsummer’s Night’s Dream”;
and his use of the ring in “Two Gentlemen of Verona,” “Twelfth Night” and
“Merchant of Venice,” with many traditions of the wedding ring, will be
found interestingly presented in Wood’s “Wedding Day in All Ages,” vol.
II., pp. 129, 149.
The custom of placing the ring upon the fourth finger of the left hand,
according to the opinion of a writer in the British Apollo, in 1708,
dates from the discovery of the convenience of the left hand for such
ornament because less employed than the right and the fourth finger,
less than others, was needed in ordinary use. See Knowlton’s “Origin of
Wedding Superstitions;” Finck’s “Primitive Love and Love Stories.”
[80] Wood’s “Wedding Day in All Ages,” vol. I., pp. 94, 95.
[81] _Ante idem._, vol. I., pp. 128, 133, 156; vol. II., pp. 44, 224.
[82] Deuteronomy, XXV., 5, 10.
[83] Ruth, IV., 7, 8.
[84] Boston Trans. Aug. 13, 1910; Wood’s “Wedding Day in All Ages,” vol.
I., p. 16; Hutchinson’s “Marriage Customs in Many Lands.”
[85] _Ante idem._
Wood quotes Michelet, in his “Life of Luther,” to show that the great
Reformer used the shoe at a marriage ceremony. Wood’s “Wedding Day in All
Ages,” vol. I., p. 16.
[86] Wood’s “Wedding Day in All Ages,” vol. II., p. 218.
[87] _Ante idem._, p. 216.
[88] _Ante. idem._, pp. 215, 221.
Referring to the custom of stocking-throwing, Rowe, in his “Happy
Village,” in 1796 says:
“The wedding-cake now through the ring was led,
The stocking thrown across the nuptial bed.”
And in the “Collier’s Wedding,” we read:
“The stocking’s thrown, the company gone,
And Tom and Jenny both alone.”
[89] See Article on “Ancient Marriage Customs,” in Uncle Remus’ Home
Magazine, June, 1912.
[90] “Matrimonial Curiosities,” Chambers Journal, vol. 48, pt. 2, p. 813.
[91] _Ante idem._
[92] _Ante idem._
[93] “Courtship and Marriage Customs,” p. 79.
[94] Earle’s “Customs in Old New England,” p. 79.
[95] History, Wells and Kennebunkport.
[96] “Along New England Roads,” p. 25.
[97] “Customs in Old New England,” p. 78.
[98] Earle’s “Customs in Old New England,” p. 79.
[99] Chambers Journal, vol. 48, pt. 2, July-Dec., 1871, p. 812.
Discussing the subject of “gallows-matches,” Wood, in his “Wedding Day in
All Ages,” says: “Formerly was current a vulgar notion that if a woman
married a condemned man under the gallows, she would thereby save him
from execution. Certainly this exemption had a quasi-legal existence in
France in the fifteenth century, as there are instances of it in the
annals of that country.” (Vol. 2, p. 25.)
[100] Chambers Journal, vol. 48, pt. 2, 812.
[101] _Ante idem._
[102] _Ante idem._
[103] _Ante idem._
[104] Roxburghe Ballads.
CHAPTER II.
WITCHCRAFT AND SORCERY.
_Witch_, is taken from the Hebrew word, rendered _venefica_,
meaning a poisoner and divineress; one who dabbles in spells and
fortune-telling.[1] In course of time, the term was used to indicate
those who held communion with evil spirits and derived a super-human
power from them, whereby they could not only foretell the coming of
future events, but bring about evil results upon the life, bodies, or
possessions of individuals. This unnatural power was supposed to be
acquired by a compact with the devil himself, by which the wizard or
witch bargained his or her soul to the devil as a consideration for the
power of enchantment.[2]
From the earliest times, men and women have tried to hold communion with
superior beings and to pierce the secrets of the future.
In the oldest code of laws in the known world, promulgated by Hammurabi,
King of Babylon, 2285 years before Christ, the first two sections of the
code are levelled at the crime of witchcraft, and we find that it is
there written, that:
“If a man weave a spell and put a ban upon a man, and has not
justified himself, he that wove the spell upon him shall be put
to death.”[3]
And the same code provided that the man against whom the spell was woven,
should plunge into the “holy river” and if the river overcame him, his
house should go to the weaver of the spell, but if the river made the man
innocent, he should take the house of the sorcerer and he was to be put
to death.[4]
According to the photogravure of the blocks of diorite, upon which these
most antique laws were written, therefore, when King Hammurabi, received
his law direct from the seated sun-god, Samas,—the judge of heaven and
earth—the old delusion of witchcraft and sorcery obtained. So prevalent
was the offense, according to the delusion then obtaining, that the very
first sections of the code were directed at this crime, established to
the satisfaction of the judges of that period, by the test of a plunge
into the “holy river,” in the absence of more direct proof of the
existence of the offense which existed only in the imaginations of the
superstitious inhabitants of that misty age.
During the time of Moses, we find that many imposters insulted the
intelligence of the Supreme Being, by claiming to have received delegated
powers from on high and hence Moses provided in his law that “Thou shalt
not suffer a witch to live.” The long persecution of persons convicted
of witchcraft, by a misinterpretation of this text, was thus justified
by this Biblical injunction and many conscientious men and women, in
their inability to understand the science of common things, attributed
appearances which they could not explain, to supernatural agencies and
blindly believing in this Mosaic law, proceeded to violate the highest
laws of God and man, in the fanaticism that a Divine injunction was
being obeyed, in the punishment of those convicted of witchcraft and
sorcery.[5]
The Twelve Tables of the early Romans contained penal provisions against
one who should bewitch the fruits of the earth or conjure away his
neighbors’ corn, into his own field,[6] and a century and a half after
the adoption of the Twelve Tables, one hundred and seventy Roman women
were tried and convicted of poisoning, under the pretense of charms and
incantations, which led to new laws against such supposed practices.
As the Mosaic law against witchcraft was formerly interpreted, to mean
the punishment by death of witches who did positive injury to another in
his person or property, so the Roman laws were directed against those
supposed to have done positive injury to a person, in his property or to
have hurt him, physically.
In other words, the mere possession of magic art, in the old heathen
world, was not, in itself a crime, for while it was dreaded, as being
liable to be turned to malicious or wrongful purposes, it was also
recognized as a most beneficial art, through which the religion of
domestic life and the remedy of healing the sick, was supposed to come.
That this view of witchcraft continued to prevail for many centuries
after the reception of Christianity, is evidenced by the laws of
Constantine, in the fourth century, which ordained capital punishment
for all those who practiced noxious charms against the life or health of
others, by supernatural power, but exempted from the punishment of the
law, all those who practiced magical arts for beneficial purposes, such
as warding off hailstorms, and excessive rains or windstorms, or curing
cattle or persons afflicted with disease.[7]
The savage laws by the Christian Emperors in the early centuries did
considerable harm in after ages. The Anglo-Saxons patterned their laws
against sorcery and witchcraft after the folk-laws of the continent and
Cnut, even, legislated against the witchcraft which was heathenish.[8]
During the reign of Henry I., criminals who encompassed the maiming or
sickening of a person by maltreating a waxen image of him—a belief that
generally obtained from this time until the seventeenth century—were
either hanged or burnt.[9] And during the reign of this monarch, in
England, Archbishop Gerard, of York, was accused of necromancy and
sorcery and when it was discovered that he had died suddenly, and a book
on the subject of astrology was found under his pillow, his body was
refused burial in the Cathedral.[10]
After the influence of the Catholic religion had safely extended its
power over the western world, however, and the fear of a return to
paganism was looked upon as most improbable, the church was not inclined
to look with such aversion upon the class of criminals accused of
dabbling in the black arts. Astrology and necromancy were looked upon
with considerable admiration by the most powerful of the church and laity
and even Bishops and Popes tempted the powers of evil, by little harmless
excursions into the great realm of the supernatural.
This temporizing by the church continued until about the beginning of the
thirteenth century, when heresy had become so common that the interests
of the church were threatened and when the church began, in various parts
of the world, a most stringent prosecution of witches and sorcerers and
the crowned-heads of Europe, in humble submission to the demands of the
Pope, used the power of the kingdom in an attempt to rid the church of
this threatened evil.[11]
From an early day, in France, people were punished for supposed crimes
resulting from witchcraft and sorcery. Charlemagne frequently ordered
all necromancers, sorcerers and witches to be driven from the realm and
with the gradual increase of the crimes attributed to them, he published
different edicts, preserved at length in the “Capitulaire de Baluse.”[12]
By these edicts, death was decreed against all those who practiced feats
of sorcery and witchcraft, and those who conspired with the devil to
afflict either man or woman, with barrenness; who excited tempests,
or windstorms; destroyed the fruits of the earth, hurt cows, or other
animals, and afflicted human beings with sores or disease, were to be
immediately executed, upon their conviction.[13]
From the time of Charlemagne until the eighteenth century, in France,
England, Scotland and other European countries, the trials for witchcraft
and sorcery continuously multiplied and it became the common means to
enable a wolfish monarch to rid himself of a disliked rival or subject,
upon some trumped-up charge, based upon some trivial circumstance
connected with an unexplained phenomenon.
The destruction of the Stedinger, in 1234; the persecutions of the
Templars, from 1307 to the year 1313; the trial and execution of poor
Joan of Arc, in 1429, the tragedy of Arras, in 1459, and many other
horrible casualties, during the middle ages illustrate the prevalency
with which this delusion was used to bring about the death and
destruction of a large portion of the human race, who were guilty only of
living in an age of ignorance and cruelty.[14]
At the instance of Pope Gregory IX., the Emperor of Germany, Frederic
II., pronounced his banns against the valiant Stedinger, in 1233 and a
crusade was inaugurated against them in all Germany. Eight thousand of
them were slain upon the field of battle and the whole race extinguished
and their houses and woods were burned, because they would not embrace
the Catholic religion, but continued to adhere to their own ideals and
ideas in religion and government. The Pope charged that they “insulted
the holy sacrament, consulted witches to raise evil spirits, shed blood
like water, took the lives of priests and concocted an infernal scheme to
propagate the worship of the devil.”[15]
The Templars had also offended the Church and in 1307 the charge was
brought against them that they were in communion with evil spirits and
had sold their souls to the devil. This charge effected its object
and they were extirpated, even as the poor Stedinger had been, in the
previous century.
Philip IV., of France, acting under authority of the Pope, ordered the
arrest and trial of the Templars and the confiscation of their goods
and property. Hundreds were put to the rack and when tortured by pain,
confessed the most unreasonable charges which were lodged against them
and this only heightened the popular clamor and the persecution against
them, as a body. Fifty-nine Templars were burned alive, by a slow fire,
in a field adjoining the city of Paris, after they had been convicted of
witchcraft and sorcery, and other instances of their persecutions, upon
this charge, occurred in the different provinces, until the year 1313,
when the Grand Master of the Order Jacques de Molay was burned to death,
a fitting climax to this reign of terror, inaugurated by the Pope and
Monarch, to rid themselves of an odious order—a lasting stigma to the
memory of the Pope and Monarch responsible for such conditions and an
ever increasing source of pity to the millions possessing the divine gift
of a tender fellow-feeling for their own kind.
In 1429 the poor Joan of Arc fell a victim to the charge of witchcraft
and sorcery and like dual criminals, proceeding hand in hand to
accomplish the crime, religion and law, not only failed to raise a hand
to prevent the conflagration that consumed and tortured the sainted
body of this patriotic victim, but actually consummated the crime, in
the name of holy order and legal procedure, which will remain eternally
as one of the saddest and most pitiable spectacles of the weakness and
criminal blunderings of the Church and State.
In 1459 a devoted congregation of the Waldenses, at Arras, fell victims
to a charge of witchcraft and sorcery. Many of them, when placed upon
the rack, admitted their guilt, to escape the torture; prominent rulers
and people of wealth were involved and many were burned, while others
were thrown in prison, or paid large fines to escape a worse fate, at the
hands of the ignorant and intolerant courts, that reflected the hatred
and persecution of the enraged populace.[16]
In 1487 two old women were arrested for witchcraft, in Switzerland, for
having caused a tempest. They were placed upon the rack, where people,
enforc’d do speak anything, and after severe torture they admitted that
they were in collusion with the devil and were condemned to die, and if
the criminal register at Constance is to be believed, they were burned at
the stake, for after the name of each, appears the significant epitaph:
“_convicta et combusta_.”[17]
Speaking of the great prevalency of this accusation, about this period,
Florimond, in his work concerning the Anti-Christ, observes:
“The seats destined for criminals in our courts of justice are
blackened with persons accused of this guilt. There are not
judges enough to try them. Our dungeons are gorged with them.
No day passes that we do not render our tribunals bloody by
the dooms which we pronounce, or in which we do not return
to our homes, discountenanced and terrified at the horrible
confessions we have heard.”
But the _Witch Mania_ in Europe, may be said to properly date from about
the year 1488, when Pope Innocent VIII., in a determined effort to rid
the Church of Rome of the stigma and opposition of those supposed to be
prompted by the devil, appointed inquisitors in every country, armed with
the apostolic power to accuse and punish this class of criminals.[18]
Following the appointment of this commission and those of successive
Popes, a wholesale slaughter of innocent men and women, followed this
crusade of bigotry and ignorance.
Cumanus burned forty-one women in one province alone, in Italy; Sprenger
burned more than five hundred in a year, in Germany; five hundred were
burned in Geneva, in 1515 and 1516; in the district of Como, in the
year 1524 about a thousand people suffered death for witchcraft and for
several years thereafter the general average in this district was a
hundred a year and one inquisitor alone, Remigius, took whatever credit
he was entitled to, for having during a period of fifteen years convicted
and burned nine hundred poor souls for this imaginary offense.[19]
In 1520 witches were burned in fires that were ever kept burning to
receive their tortured bodies, in France. In 1561 five poor women of
Verneuil were convicted of turning themselves into cats and prowling
around and performing satanic feats, as a result of which they were all
burned alive.[20]
In 1571 the celebrated sorcerer, Trais Echelles, after his confession,
was burned at the Place de Greve, in Paris.
In 1573 Giles Garnier, of Lyons, was indicted for being a loup-garou, or
man wolf,[21] and prowling around at night and destroying children. Fifty
witnesses testified against him and after being placed upon the rack, he
confessed the crime he was charged with and was condemned by Dr. Camus to
be:
“tied to a stake and burned alive and that his ashes be then
scattered to the winds.”[22]
The conditions in England, during the sixteenth century, were about the
same as in France, Germany and Italy, so far as the persecutions for
witchcraft were concerned. While rooting out many errors of ignorance and
superstition, the Reformation made no head-way at all against witchcraft
and sorcery, the greatest evil of the period and strange to narrate,
while their followers were persecuted for this crime, Luther and Calvin
were as firm believers in witchcraft as were the Popes whom they opposed
and their followers were even as zealous persecutors of the innocents
accused of this crime as were the churchmen of the old religion.[23]
A few of the English cases will not be found uninstructive as
illustrative of the prejudice and persecution levelled at those accused
of witchcraft in that country, during the sixteenth and seventeenth
centuries.
The celebrated case of the Witches of Warbois, in 1594, is especially
worthy of mention. The good old Mother Samuel lived in the neighborhood
of Sir Samuel Cromwell and a Mr. Throgmorton and the latter had several
daughters and among them a Miss Joan, who was a melancholy girl, whose
head was filled with stories of ghosts and witches and she conceived the
idea that poor old Mother Samuel had bewitched her, as she felt sudden
pains in her limbs and strange sensations, when she went near her. Her
parents believed her and after a few family casualties the poor old
woman was arrested upon a charge of witchcraft filed against her by the
family of Sir Samuel Cromwell, after the death of his wife, as she had
confessed, upon different persecutions that she had afflicted them with
pains and fits and turned their milk sour in the pans, prevented their
ewes and cows from bearing and that she had caused Lady Cromwell’s death.
She also confessed that her husband and daughter were leagued with her in
witchcraft and all three were found guilty and hanged on April 7’, 1593.
In Scotland, during the ninth Parliament of Queen Mary, witchcraft
was made a crime punishable by death, and after this statute, the
superstition and fear of the people brought frequent accusations against
different people, many of whom were prominent in Government and social
circles.
The case against Dr. Fian and his accomplices will illustrate the feeling
obtaining in Scotland about this period. Gellie Duncan implicated
Agnes Sampson and when she was put to the torture, she also implicated
Dr. Fian, Marion Lincup and Euphemia Macalzean, the daughter of Lord
Cliftonhall. They were charged with having attempted the king’s life,
through witchcraft and sorcery. It was charged that they had raised a
fearful storm at sea, to attempt to wreck a ship on which the king, James
VI., and his bride had sailed. Several of the accused were subjected to
the torture and finally confessed to the crime and implicated the rest,
and on June 25’, 1591, Barbara Napier, Gellie Duncan, Agnes Sampson,
Dr. Fian and twenty-five others were hanged for witchcraft and Euphemia
Macalzean was “bound to a stake, and burned in ashes, _quick_ to the
death.”[24]
After this conviction in Scotland, the renown of King James as an enemy
to witchcraft and sorcery, preceded him to England and when he ascended
the English throne in 1603, he was ready for a new crusade against this
obnoxious class of criminals.
The first statute upon witchcraft, in England, was that of 1541, which
defined the offense and affixed the punishment.
Two statutes were passed in 1551, one relating to false prophesies,
due no doubt to the machinations of Elizabeth Barton, the “Holy Maid
of Kent,” and the other was levelled at conjurgations, witchcraft and
sorcery.
The statute of Elizabeth, in 1562, recognized witchcraft as a crime
of first magnitude, punishable by death, regardless of whether it was
exerted against the lives, limbs, or property of the subjects.[25]
On his accession to the throne in 1604 King James passed the statute
whereby it was enacted that:
“If any person shall use, practice, or exercise, any
conjurgation of any wicked or evil spirit, or shall consult,
covenant with, or feed any such spirit, the first offense to be
imprisoned for a year and stand in the pillory once a quarter;
the second offense to be death.”
The milder punishment was not inflicted, but all convicted under this
statute were hanged and burned, or burned, without previous strangling,
“alive and quick.”
This statute continued on the statute books until the year 1736, when
it was repealed and suffered no longer to disgrace the intelligence of
the country, after which date witches, conjurers and fortune-tellers
were only subjected to the jail sentences common to other misdemeanors,
confinement for short intervals, or the pillory.
We are reliably informed that during the Long Parliament, in England,
three thousand witches were executed[26] and during the first eighty
years of the seventeenth century, it has been estimated that five
hundred people were annually executed for witchcraft, in England, making
a total of forty thousand who thus met their deaths, during the whole
period referred to.[27]
One of the rankest weeds in the garden of wild delusions that flourished
in England, in the seventeenth century was Matthew Hopkins, who prided
himself upon the title of “Witch-finder General.” About 1644 he made the
discovery of some moles or other marks on the accused persons, which he
advertised as “devil’s marks” and he immediately became in great demand
in helping to hunt down and convict persons accused of this crime.
He had several tests to subject them to, and one of the cruelest was to
tie the hands and feet of the prisoner together cross-wise, the right
thumb to the toe of the left foot and _vice versa_. Being thus tied, so
they could not swim, they were wrapped in a cloth or blanket and placed
in a pool of water or a river, on their backs. If they sank, they were
innocent, but drowned for their innocence, and if they floated, they were
adjudged guilty of witchcraft and hanged or burned.[28]
Another kind of punishment, to extort a confession, was what was called
“Waking” the witch. An iron bridle or hoop was placed cross-wise of her
face with four prongs, penetrating the mouth. The hoop was fastened
to the wall at the back of the head, so that the prisoner could not
lie down. She was kept in this position sometimes for several days,
attendants constantly prodding her, to keep her awake.[29]
In 1664 the venerable Sir Mathew Hale, condemned Amy Duny and Rose
Cullender, to be burned at the stake in St. Edmondsbury, upon the most
flimsy kind of proof, offered to establish this imaginary crime.[30]
When these two old women went to a shop to purchase herring, their
ugliness caused them to be insulted, and they resented it. The daughter
of the owner of the store was afflicted with epilepsy and the women were
charged with having bewitched her. She was blind-folded and when they
touched her, her imagination and nervousness was such that she was thrown
into a fit and this was received as proof positive of her bewitchment
and the fact that she also was thrown into a fit, when similarly
blind-folded, when others than the accused persons touched her, was held
incompetent as evidence in their favor.
Upon the evidence of Samuel Pacey, the girl’s father, Margaret Arnold,
her aunt, and Thomas Brown, as an expert witness upon Witchcraft, the
learned Sir Mathew Hale charged the jury to ascertain from the evidence,
first, whether or not the persons charged were actually bewitched and
if so, whether or not the prisoners had actually bewitched her. He
personally told the jury that he had no doubt of the fact that witches
existed, first because the Scriptures affirmed it and, secondly, because
the laws of the country recognized it. The jury promptly returned a
verdict of guilty and the girl and her father called the next morning to
see Sir Mathew Hale and advised him that the complete recovery of the
girl followed within a half hour after the verdict of conviction against
the prisoners.[31]
Eleven cases of witchcraft were tried before Chief-Justice Holt, between
1694 and 1701, but sentiment was changing toward this offense, by this
time and this rugged and astute lawyer made such an appeal to the jury,
in each case, that all the defendants were acquitted.[32]
Jane Wenham, known as the “Witch of Walkerne,” was tried and convicted
before Lord Chief-Justice Powell, in 1711, upon the most fanciful
and ridiculous kind of evidence, but she was pardoned, before her
execution.[33]
In 1716, however, a woman and her daughter only nine years old, were
tried and convicted of sorcery, at Huntingdon, because they had washed
their stockings and made a lather of soap and raised a storm and for this
terrible offense they were both hanged.[34]
But this was the last judicial execution for witchcraft in England,
although many prisoners were charged with the crime, between this date
and the year 1736, when the statute of James I. was repealed.[35]
While the delirium of witchcraft was raging in Europe,—until its victims
numbered tens of thousands and its votaries millions,—the fever spread
across the ocean and the New England colonists also fell a prey to the
superstition. The fear of witchcraft and sorcery seized the multitudes in
the United States, in the middle of the seventeenth century and supposed
criminals were arrested in such numbers that the prisons were not large
enough to hold them.
The persecutions at Salem, Massachusetts, lasted from February until
September, 1692, during which time, nineteen supposed witches were hung,
fourteen of them being women.[36]
Under the early statutes of New York and Pennsylvania, witchcraft was a
capital offense.[37]
The good William Penn, who fled from similar persecution in England,
presided in the “City of Brotherly Love,” at the trial of two Swedish
women, who were arraigned for witchcraft. The funeral pile had been
prepared and the flint and tinder were all ready to burn them, but
fortunately they were acquitted of the charge.[38]
In Connecticut and Massachusetts, the penalty for witchcraft was death
and the laws of these states were based not only upon the Mosaic code,
but upon the Common Law of England, as well.
A few trials occurred in Virginia and Maryland and six persons were hung,
in Connecticut, for witchcraft, during the last half of the seventeenth
century.
Margaret Jones was executed for witchcraft, in Boston, in June, 1648;
Mary Parsons, of Springfield, Massachusetts, was tried and convicted, in
1651; Mrs. Ann Hibbins was executed in Boston, in 1656, and Goody Glover
was executed at the same place, in 1688.[39]
The history of the persecutions at Salem, Massachusetts, has furnished
the basis for several books, presenting the harrowing details of the
trial of the several victims of the crusade against the delusion of
witchcraft, at that place.[40]
The Salem persecutions began with the delusions of a party of young
girls, who imagined they were bewitched. Elizabeth Parris, aged nine,
the daughter of Rev. Samuel Parris, her cousin, Abigail Williams, aged
eleven, Ann Putnam, aged twelve, the daughter of the parish clerk, Mary
Walcott, Mercy Lewis, Elizabeth Hubbard and several other girls furnished
the evidence upon which these persecutions were begun.
After reading of witchcraft and magic, these children, who had worked
themselves into a state of nervous excitement, began to cut queer
antics, such as hiding in holes; crawling under chairs; assuming odd
postures and uttering loud and incoherent expressions, all of which they
attributed to the supernatural power exerted over them by three women
of the neighborhood, Sarah Good, Sarah Osburn and an Indian woman named
Tituba. Acting under the license of witchcraft, these girls disturbed
religious worship, at will and performed other little misdemeanors,
which their doting parents laid to the door of the witches, instead of
correcting them, as they should have done.
Finally the three women were arrested and arraigned for the crime of
witchcraft. They were unpopular and uncomely women, as Mrs. Upham shows,
Mrs. Good having been abandoned by her husband and Mrs. Osburn being
a poor unhappy woman, bed-ridden and suffering from nervousness and
melancholia.[41] Tituba, the Indian woman, believed in witchcraft herself
and had told the children stories of evil spirits until they firmly
believed in her unnatural power.
On March 1’, 1692, the trial was begun at the meeting house in Salem,
before Esquires John Hathorn and Jonathan Corwin. Sarah Good was first
examined and denied any communion with evil spirits and affirmed her
service of God. No counsel was allowed the prisoners, as this was the
custom according to the common law, in capital cases, unless the Court
was in doubt, as the Judge was supposed to be the counsel for the
prisoner.
After having been tormented for some time, and believing her escape
to lie only in the conviction of someone else, Mrs. Good accused her
co-prisoner, Mrs. Osburn, and she was remanded to jail and Mrs. Osburn
was brought before the court. Frail in body and feeble in her intellect,
this poor woman, when interrogated by the pompous oracles of the law,
could only protest her innocence and deny any communion with evil
spirits, or any knowledge of the offense charged against her by her
alleged accomplice.
After this travesty of a trial, she was again committed to prison, where
she was kept heavily chained, from March 7, until May 10’, when she died,
her innocent soul being thus forever released from the unnatural and
inhuman affliction heaped upon her body by her fellow-beings. The Indian
woman, when she was examined, did not deny that the children had been
bewitched, but she laid it all to the door of her co-defendants, Mrs.
Good and Mrs. Osburn.
The girls, when brought before the supposed witches, fell down and
shrieked, in their excitement; if the prisoners clasped their hands, they
screamed that they were pinched; when they bit their lips, they in turn,
asserted that they were being bitten; they produced pins, which they said
the witches had pricked them with and worked upon the morbid imagination
of the assembly so that the trials of the witches were little less than a
burlesque.[42]
Martha Corey was arrested on the 19’ of March, 1692, and the evidence
of her husband was used against her, to the effect that she had taken
his saddle to keep him from attending church; that she sat up late at
night and frequently kneeled on the hearth, as if in prayer, but uttered
no word; that certain of his cattle had been afflicted and that one of
their cats had had a fit. On such evidence as this, this good woman, was
adjudged guilty and was one of the eight persons executed on the 22’ of
September.[43]
On April 19’, 1692, when he was over four score years of age, poor old
Giles Corey was arrested for witchcraft, at Salem, and his case furnishes
the only instance in the United States, where to avoid the attainder of
his blood and the forfeiture of his estate, a prisoner obstinately stood
mute and was “pressed to death.”
His unfriendly course toward his wife and the attitude of two of his
four sons-in-law in testifying against his wife, no doubt so worked upon
his mind as to cause him to make a terrible expiation. He deeded all
his property to his two favorite sons-in-law, William Cleeves and John
Moulton, and decided to then stand mute and refuse to plead and let the
law take its course.
Of course he knew that the gates of justice were closed to him and that
he would be convicted, although he was innocent, but he determined
to defy the multitude and to withhold his plea, in order to save his
property for his sons-in-law and to show his courage, in the supreme test.
Longfellow, in his “New England Tragedies,” has described this feeble old
man, withstanding the exhortations of his friends, in his determination
to die the death of a martyr in an unjust cause, and one cannot read the
graphic and realistic account of this tragedy, without feelings of the
greatest compassion and admiration for this grand old stoic, of our own
soil, who bravely suffered his body to be pressed until all life was
extinct and whose soul took its flight from the open field, near the
Howard street burial ground, in the village of Salem, on September 19’,
1692.[44]
In the case of the gentle Rebecca Nurse, even after her acquittal, by
a jury, regularly empaneled and charged to try her for witchcraft, the
frenzied populace “recalled the decision” and she was sentenced by the
Court, to meet the demands of the mob; she was carted to the summit of
Gallows hill, and hanged, on July 19’, and her case furnishes one of the
most unjust instances of the “recall of a judicial decision” and one of
the grossest travesties upon justice in the history of any country.[45]
Because John and Elizabeth Proctor had absented themselves from the
meetings, during the trials for witchcraft, they were finally accused
and thrown in prison. He made a manly appeal for a trial at Boston, in
a letter dated July 23’, 1692, addressed to Mr. Mather, Mr. Allen, Mr.
Moody, Mr. Willard and Mr. Bailey, but all to no avail. His friends
petitioned the Court; one of the girls who testified against them made
a statement that she “must have been out of her head,” when she gave
her evidence, as it was not true, but nothing could stem the tide of the
current of rapidly rising prejudice and resentment prevailing, so after a
farcical trial, he was convicted and executed on August 19’, 1692.
His fearless defense of his good wife saved her life and two weeks after
his death, she bore a baby in prison and it was no doubt due to her
pregnant condition that she too, escaped the fury of the mob.[46]
The trials of Bridget Bishop, Mary Easty, a sister of Rebecca Nurse, the
Jacobs family, Martha Carrier and Philip and Mary English, Elizabeth
How, Rev. George Burroughs, Sarah Wildes, Susanna Martin, John Williard,
Alice Parker, Ann Pudeater, Margaret Scott, William Reed, Samuel Wardell
and Mary Parker,[47] are all interesting and present the details of the
most stirring tragedies the courts of justice in this country have ever
enacted, but space in this chapter will not permit the detailed account
of these various trials.
From the earliest times, a great deal has been written upon the subject
of witchcraft and sorcery, in the different languages of Europe. The
delusion has furnished a theme for long and arduous treatises by
scientist, divine and philosopher and the poet and novelist, has found it
a fruitful source of inspiration for song and story.
The works of Dr. Joseph Glanvil, chaplain-in-ordinary to Charles II., and
R. Baxter, in his “Certainties of the Works of Spirits,” as vindications
of the superstitions of witchcraft and sorcery, did much to spread the
delusion, during the popularity of the superstition.
Balthazar Bekker, a reformed Dutch clergyman, was the first to strike
at the very foundation of the delusion, near the end of the seventeenth
century; Hutchinson, in his historical essay on Witchcraft, in 1718,
also took a skeptical view of the subject, and these men, with Weier and
Reginald Scot, along with the sturdy advocates who defended the prisoners
charged with witchcraft, and such judges as Lord Holt, in England, did
much to discourage and overcome the belief in the fallacy.
Burn’s lines to the “De’il” aptly express the popular notion of the time
when the belief in spooks and evil spirits obtained:
“Ae dreary, windy, winter night,
The stars shot down wi’ sklentin light,
Wi’ you, mysel, I got a fright
Ayont the lough;
Ye, like a rash-bush, stood in sight
Wi’ waving sough.
The cudgel in my nieve did shake,
Each bristled hair stood like a stake,
When wi’ an eldritch stour, ‘quaick, quaick’,
Among the springs
Away ye squatter’d, like a drake,
On whistling wiggs.”
The notion of the devil then was that he was a large, ill-shaped, hairy
sprite, with long tail, horns, cloven feet and wings, as we so often see
him pictured in the old representations.
Before Milton’s time, he was believed to be a mere mischievous, ugly and
petty spirit, who played fantastic tricks upon humanity, but Milton made
of him the paragon of evil, not merely grotesque, but a fiend, whose
power was all used for evil.[48]
“The other shape,
If shape it might be call’d that shape had none
Distinguishable in member, joint or limb;
Or substance might be call’d that shadow seem’d,
For each seem’d either,—black it stood as night,
Fierce as ten furies, terrible as Hell,
And shook a dreadful dart; what seem’d his head
The likeness of a kingly crown had on.
Satan was now at hand.”[49]
From the history of Demonology and Witchcraft, as given in the works of
Bodin, Bekker, Leloyer, De Lancre, Garinet, Mackay, Lecky, Nevins, Upham,
Benson, Goodwin and Sir Walter Scott, demons of both sexes had existed
in the world, ever since the fall of Adam. They increased and multiplied
with wonderful rapidity; inhabited the air and had no fixed residence or
abode, and when they congregated, windstorms, hurricanes and earthquakes
resulted. They were supposed to delight in destroying the beauties of
nature and the possessions of man and entered the bodies of individuals
with their breath and caused pains and sickness and bad dreams. All
these demons were at the command of any person who would barter his soul
to them and his or her evil purpose was then accomplished, but no good
action would be undertaken.
In France and England the witches were supposed to ride astride
broom-sticks, while in Italy and Spain, the Devil, himself, in the shape
of a goat, carried them on his own back.[50]
This belief prevailed for many centuries all over Europe and in certain
sections of the world the belief in witchcraft and sorcery is not
entirely eradicated today.[51]
In 1627, a ballad entitled the “Druten Zeitung,” or “Witches Gazette”
was quite popular in Germany. The sufferings of the witches burned at
Würzburg, Bamberg, Franconia and other cities and provinces of the German
Empire, were minutely described, by the poet, who grew quite witty in his
descriptions of the contortions produced by pain, when the flames brought
forth shrieks from the poor wretches who were burned alive.[52]
The “Amber Witch,” by William Meinhold, being the most interesting
trial for witchcraft, of Mary Schweidler, is one of the most exceptional
and interesting of the books of fiction, based upon the delusion of
witchcraft.
But let us draw the curtain upon this continuous human tragedy enacted
for two and a half centuries, in Europe, in the name of the law,
cataloguing the long list of judicial murders, upon the stage where
superstition and delusion alone held sway.
It is sad, in the extreme, to contemplate the long list of human beings
whose lives were forfeited, in the early days of “little knowledge,” by
those who thus:
“Hoped to merit Heaven, by making earth a Hell.”
And it is doubly sad, to contemplate that the Temples of Justice were
peopled by these fears of fantasy and the imagination—like some of the
fetishes that modern critics of our present judicial system erect in
some places—and that the high priests of the temples blindly followed
the mad cry of the mob and laid aside the scales of justice to interpret
the unjust ideals of an intoxicated public sentiment, following only the
red flag of murder. These jurists of the past centuries who participated
in this wholesale slaughter of individual right, may have feared their
recall, if they withstood the frenzy of a wrought-up public clamor, and
in this a lesson can be learned, of the danger of following the demands
of public sentiment, in courts of justice, instead of the proper ideals
of equality and justice.
It is fortunate that only the small percent of the densely ignorant
now-a-days, account for the misunderstood facts and phenomena of nature
by the fears and delusions of witchcraft and sorcery and that in the
progress of the race, the delusion of witchcraft has been crowded into
the dark, remote and rugged sections where alone the foot of civilization
can find no resting-place.
There are few, if any, more deplorable episodes, in human history than
that of the persecutions for witchcraft. They illustrate to what an
extreme degree of relentless cruelty human nature will go, when fanned
to a fever-heat of excitement by some fanatical delusion. On the other
hand, the history of the persecutions for witchcraft show how little
reliance can be placed upon the credibility of witnesses, influenced
by some general excitement, or acting under a mistaken belief of duty,
based upon the attainment of some popular object. Thousands of witnesses
who appeared against the poor victims charged with this hated crime of
witchcraft and sorcery, honestly believed in the fantastical delusions
and tricks of fancy that they described as actual occurrences, which in
fact had no better foundation than their own fervid imaginations.
Regarding man’s self, alone, it is difficult to reconcile the beneficent
laws taught by the church, with the sad “scope and scheme” of things,
as disclosed by the pathetic facts of history, in connection with this
subject. And yet:
“You cry ‘the cruelty of things’ is mystery to your purblind eye,
Which fixed upon a point in space, the general project passes by.
...
The dreadest sound man’s ear can hear, the war and rush of stormy wind
Depures the stuff of human life, breeds health and strength for
humankind.
And thus the race of Being runs, till haply, in the time to be,
Earth shifts her pole, and Mushtari men another falling star shall see.”
FOOTNOTES:
[1] II. Mackay’s “Memoirs of Delusions,” pp. 169, 170.
[2] _Ante idem._
[3] Johns’ “Oldest Code of Laws,” 1; Scheil’s “Tome IV. Textes
Elamites-Semitiques,” etc., Johns’ “Babylonian and Assyrian Laws,
Contracts and Letters.”
[4] _Ante idem._
[5] II. Mackay’s “Memoirs of Delusions,” p. 169; Exod. XXII. 18. As
Mackay shows, the sublime hope of immortality, in the early days of
“little knowledge” became the source of a whole train of superstitions,
from which fount a deluge of blood and horror poured over Europe, for two
and a half centuries. “Memoirs of Delusions,” vol. II., p. 168.
[6] Niebuhr’s Lecture, Roman History (English Tr.), vol. I., pp. 295,
319; George Long’s article “Lex,” in Smith’s Dictionary of Greek and
Roman Antiquities; Mommsen’s History of Rome (English translation), vol.
I., book I., ch. II. and book II., ch. 2.
[7] _Codex Justin. lib. ix, tit. 18._
The “Dialogue on Witches and Witchcraft,” published by the Percy Society
from the literature of the middle ages, presents the reasons and basis
for the belief in Witchcraft, “in which is layed open how craftily the
divell deceiveth not onely the witches, but many other, and so leadeth
them awrie into manie great errours, By George Giffard, Minister of God’s
word, in Malden, published in 1603.”
In this Dialogue, Daniel quotes Christ’s words, as reported by Marke,
that his name is “Legion, for we are many,” as evidence of the existence
of “multitudes and armies of divels, as we see in the Gospel.” The
command of the Mosaic law “Thou shalt not suffer a witch to live,” is
quoted as a sufficient reason for rooting them out; the words of Moses
are quoted that the Lord would cast out those nations that hearkened unto
soothsayers and diviners, pronouncing that every one that does those
things are an abomination to the Lord; that the Lord not only declared
that such as practiced witchcraft and sorcery were an abomination before
the Lord, but that they should “also bee rooted out.” (Percy Society Pub.
vol. VIII., 24, 40, 42, 52, 72.)
The belief that cats were bewitched to do the bidding of the devil, which
formed such a large part of the delusion of witchcraft, as practiced in
the middle ages, is also touched on, in the “Dialogue on Witches,” in the
above interesting publication, from the literature of the middle ages
which can be read with much amusement and entertainment, because it gives
in realistic hue, a vivid pen picture of the old delusion, just as it
existed in the early days of the seventeenth century.
[8] Cnut, II., 4; Lea. _op. cit._ iii. 420; Brunner D. R. G. ii. 678; II.
Pollock and Maitland’s History English Law, p. 553.
[9] Leg. Hen. 71; II. Pollock and Maitland’s History English Law, 553.
[10] II. Pollock and Maitland’s History English Law, p. 553.
[11] II. Pollock and Maitland’s History English Law, p. 553.
[12] Garinet’s “Histoire de la Magie en France.”
[13] _Ante idem._
[14] Dr. Sprenger, in his “Life of Mohammed,” computes the entire number
of persons who were burned as witches, during the _Christian epoch_, as
about _nine million_.
Tasso attributed the belief in magic and witchcraft to the Crusaders, but
M. Michaud, in his “History of the Crusades,” denies that the Crusaders
believed in witches. However, the edicts of Charlemagne demonstrate quite
conclusively that Tasso was right, for the Crusaders, in common with the
millions of their contemporaries who were votaries of the delusion of
witchcraft and sorcery, attributed the misunderstood facts in the natural
world about them, to supernatural powers of magic.
[15] Mackay’s “Memoirs of Delusions,” vol. II., p. 186.
[16] Monstrelet’s Chronicle.
[17] II. Mackay’s “Memoirs of Delusions,” p. 194.
[18] Mackay’s “Memoirs of Delusions,” vol. II., p. 195.
[19] _Ante idem._, p. 197; Danaeus, “Dialogues of Witches.”
[20] Mackay’s “Memoirs of Delusions,” vol. II., p. 199.
[21] The ignorant Canadian French still believe in the Loup-garou, just
as the French did in the centuries gone by.
[22] Mackay’s “Memoirs of Delusions,” vol. II., p. 201.
[23] Hutchinson, on Witchcraft.
In the year 1670 a number of women were condemned by the Parliament of
Normandy, for riding broom-sticks to the Domdaniel. Louis XIV., commuted
their sentences to banishment for life, when the Parliament of Rouen
presented to him a memorial, insisting that he set aside the order for
their commutation, but the wise King stood firm and refused to let them
be judicially murdered in his kingdom. (For this memorial in full, see
II. Mackay’s “Memoirs of Delusions,” pp. 289, 298.)
[24] II. Mackay’s “Memoirs of Delusions,” p. 226.
[25] Very severe statutes were passed during the reign of Elizabeth,
against the imaginary crime of witchcraft and sorcery. The statute 33
Henry VIII. c. 8, was repealed by I. Edward VI., c. 12 and as this left
no law in force to punish this class of offenders, it was enacted by
5 Elizabeth, c. 16, that if any person used or practiced witchcraft,
enchantment, charm or sorcery, whereby any one shall happen to be killed
or destroyed, it shall be felony, without clergy. And if anyone thereby
be wasted, consumed, or lamed, in body or member, or any of his goods
destroyed or impaired, such offender shall be imprisoned for a year, and
stand in the pillory once a quarter, during that time for six hours. (V.
Reeve’s History English Law, p. 349.)
[26] See “Butlers Hudibras,” edition by Dr. Zachary Gray (vol. II).
[27] Mackay’s “Memoirs of Delusions,” vol. II., p. 237.
[28] Lecky’s “Rationalism in Europe,” vol. I.
[29] Lecky’s “Rationalism in Europe,” p. 146, vol. I.
[30] II. Mackay’s “Memoirs of Delusions,” p. 248.
[31] II. Mackay’s “Memoirs of Delusions,” pp. 253, 254.
[32] _Ante idem._
[33] II. Mackay’s “Memoirs of Delusions,” p. 255.
[34] II. Mackay’s “Memoirs of Delusions,” p. 258.
While this hideous record of blood and murder, in the name of the law,
was being recorded in England, during the seventeenth century, a similar
record was being written, in the criminal courts of Spain, Italy,
Scotland and Germany. Thousands of innocent people lost their lives under
this charge in these countries, during this century.
As an illustration of this mad carnival of death, in Würzburg, alone in
the two years following 1627, one hundred and fifty-seven people were
burned, in twenty-nine burnings, averaging from five to six people at a
burning. The wealthy and the paupers, old and young, the ungainly and the
comely, all alike suffered in this unholy crusade.
Of the list there were three play-actors; four innkeepers; three
councilmen; fourteen vicars; the burgomaster’s lady; an apothecary’s wife
and daughter, the wife, sons and daughter of the councillor Stolzenberg
and Gobel Babelin, “the prettiest girl in the town,” thirty-two vagrants
and a large number of little innocent children, who were guilty of
no offense or crime other than that of living in a period when their
innocence was considered a crime. (Hauber’s “_Acta et Scripta Magica_.”)
[35] II. Mackay’s “Memoirs of Delusions,” p. 258.
[36] Upham’s “Salem Witchcraft, in Outline”; Nevin’s “Witchcraft in Salem
Village.”
[37] Upham’s “Witchcraft in Outline,” p. 6.
[38] Upham’s “Witchcraft in Outline,” 6.
[39] The trial of Mary Dyer, Quaker, is presented in “Two Letters of
William Dyer,” 1659-1660.
[40] Upham’s “Salem Witchcraft”; Nevin’s “Witchcraft in Salem”; Moore’s
“History of Witchcraft in Massachusetts.”
[41] Upham’s “Salem Witchcraft,” pp. 25, 26.
[42] Upham’s “Salem Witchcraft,” pp. 44, 45; Nevin’s “Witchcraft in
Salem,” 46, 69.
[43] Upham’s “Witchcraft in Outline,” 61.
[44] _Ante idem._, p. 69.
[45] Rose Terry Cooke, in her, “Death of Goody Nurse,” thus describes the
death of this good woman:
“They hanged this weary woman there,
Like any felon stout;
Her white hairs on the cruel rope
Were scattered all about.”
[46] Upham’s “Salem Witchcraft,” p. 87.
[47] Upham’s “Salem Witchcraft,” pp. 142, 143; Nevin’s “Witchcraft in
Salem,” pp. 70, 253.
[48] See article on “Demonology,” in Foreign Quarterly Review, London,
1840.
[49] Paradise Lost, book ii, Line 666.
[50] II. Mackay’s “Memoirs of Delusions,” p. 178.
[51] Many of the ignorant Canadian-French still believe in the delusions
of the loup-garou, or man wolf, and in the southern portion of Nigeria,
as recently shown by P. Amaury Talbot, superstition and witchcraft
lurk in all the forests and lakes of the country. Describing these
superstitions, in a recent article in the London Telegraph, Mr. Talbot
says:
“The bush with its soft green twilight, dark shadows, and quivering
lights, is peopled by many terrors, but among these ‘Ojje’, or
witchcraft, reigns supreme. The bird which flies in at your open door
in the sunlight, the bat which circles round you at night, the small
bushbeasts which cross your path while hunting, all may be familiars of
witch or wizard or even the latter themselves, disguised to do you hurt.
Sometimes the terror of witchcraft will scatter a whole town.”
And for belief in witchcraft, among the southern darkies, see Journal of
American Folk Lore, vol. III., p. 205; Bruce’s “Plantation Negro as a
Freeman”; and Jones’ “Negro Myths from the Georgia Coast.”
[52] II. Mackay’s “Memoirs of Delusions,” p. 277.
CHAPTER III.
RECALL OF JUDGES.
“Of all the virtues, Justice is the best,
Valour without it is a common pest.
...
All other virtues dwell but in the blood,
That in the soul, and gives the name of good;
Justice, the queen of virtues.”—Waller.
Judge is the generic descriptive name given to one who is invested with
the power of judging and deciding causes in the courts of law. The
recall, as applied to the judiciary, is the withdrawal of the power given
a judge to decide causes.
As justice has always been the great interest of man, on earth, we find
that the virtue has ever been extolled, as one of the greatest blessings
of the human race and among the earliest institutions of which we have
any knowledge, we find that courts were constituted, for the distribution
or enforcement of justice, through the medium of judges.[1]
The great law-giver, Moses, having learned the hard lesson from the
book of human life, early grasped the truth that man’s nature needed
protection from its own impulses and passions, and that an exalted
rule of conduct, commanding what was right, to be effective, must be
enforced and interpreted, by a wholly disinterested guiding influence. He
accordingly established the administration of justice, among the ancient
Israelites, by choosing “able men, out of Israel, such as feared God,
men of truth, hating covetousness; and made them heads over the people,
rulers of thousands, rulers of hundreds, rulers of fifties, and rulers
of tens; and they judged the people at all seasons; the hard causes they
brought unto Moses, but every small matter they judged themselves.”[2]
Grasping, even at this early day at the exalted standard, later realized,
in the Horatian ideal, “of the just man, who, firm in the consciousness
of right, disdains, with equanimity, the frowns of a tyrant and the
clamors of a mob,” we find this old patriarch, fifteen centuries before
Christ, admonishing the judges of the Israelites:
“Thou shalt not follow a multitude to do evil; neither shalt
thou speak in a cause, to decline, after many, to wrest
judgment.”[3]
Admonishing the judges, further, in regard to being swayed in their
decisions, by the fickle winds of public sentiment, Moses said:
“Ye shall not respect persons in judgment, but ye shall hear
the small as well as the great; _ye shall not be afraid of the
face of man_; for the judgment is God’s; and the cause that is
too hard for you, bring it unto me and I will hear it.”[4]
And not content with warning the judges of the danger of fearing the
people, in the act of pronouncing judgment, he also warned the people of
the duty of respecting the judgments of the courts, in the following wise
commands:
“And thou shalt come unto the Priests and Levites, and unto
the Judge that shall be in those days and inquire; and they
shall shew thee the sentence of judgment. And thou shalt do
according to the sentence, which they of that place which the
Lord shall choose, shall shew thee; and thou shalt observe to
do according to all that they inform thee. According to the
sentence of the law which they shall teach thee, and according
to the judgment which they shall tell thee, thou shalt do;
thou shalt not decline from the sentence which they shall shew
thee to the right hand, nor to the left. And the man that will
do presumptuously, and will not hearken unto the priest that
standeth to minister there, before the Lord thy God, _or unto
the Judge_, even that man shall die and thou shalt put away the
evil from Israel. And all the people shall hear and fear, and
do no more presumptuously.”[5]
It thus appears that the ancient Israelites appreciated the virtue known
as Justice and more nearly approximated the cultivated ideal existing
in more recent times, for they understood, or Moses did, that it was
indispensable, in the act of dispensing justice, for the incumbent of the
judgment seat, to rise superior to the popular standards of justice and
equality and that the due and orderly realization of the virtue could
only be realized by a proper regard and respect for the judgments of the
courts when they were pronounced.
In this respect, the old patriarchs were in advance of the ancient
Babylonians and Athenians, for while attempting the distribution of
justice, through the medium of disinterested judges, they did not seem to
grasp the necessity for an independent judiciary, but upon unjust grounds
they permitted the recall and debasement of their wisest judges.
In the oldest Code of Laws in the known world, the code of Hammurabi,
King of Babylon, 2285 B. C.,[6] who claimed to have received his laws
from the seated sun-god, Samas, the “judge of heaven and earth;”—an old,
Mosaic bearded king, as represented to us, from the dark ages, upon
the black block of diorite, presenting also his Code of Laws; known to
history as the Babylonian king, who conquered the four quarters of the
earth; who enriched Ur (Father Abraham’s birthplace), the humble, the
reverent, who clothed the gravestones of Malkat with green; the warrior
who guarded Larsa and renewed Ebabbar; the Shield of the land who united
the scattered inhabitants of Isin; who firmly founded the farm of Kish;
the White Potent one who penetrated the secret cave of the bandits; one
who recognizes the Right and who Rules by Law; who humbles himself before
the great gods[7]—this valiant one of the misty ages of long ago, in his
Code, after providing for the death of the man who should weave a spell
or put a ban upon another man, in the fifth section of his Code of Laws,
provided for the recall or removal of the judges of his courts, by the
following provision:
“If a judge has judged a judgment, decided a decision, granted
a sealed sentence, and afterwards has altered his judgment,
that judge, for the alteration of the judgment that he judged,
one shall put him to account and he shall pay twelve-fold the
penalty, which was in the said judgment, and in the assembly
one shall expel him from his judgment seat, and he shall not
return, and with the judges at a judgment he shall not take his
seat.”[8]
Petitions and motions for a rehearing were thus interdicted by Hammurabi,
regardless of the mistakes entering into the judgment, which could only
be righted by a rehearing, or a new trial, and if a new trial were
granted, the judge was publicly disgraced and recalled and was never
allowed to sit in judgment again.
So unalterably opposed were the ancient Babylonians to the granting of
a new trial, that if a decision for the infliction of a penalty were
set aside, the judge had to pay it twelve-fold to him from whom it was
exacted and for any new trial granted by him, the judge was publicly
deposed from his office and expelled from his seat of judgment and no
longer permitted to sit with the judges. According to the strict letter
of the Code, it was no justification for the judge to be able to show
that the new trial was granted to prevent a miscarriage of justice, for
as the law reads, a judgment once pronounced was irrevocable, for that
judge, at least.[9]
But let us look more minutely into the procedure, governing the right of
litigants in the days of Hammurabi. It was the prerogative of the King,
during the First Dynasty, to send to the local judges his own decision of
a cause, or to simply send the case to them for trial.
Trials were held in the great temple of Ebabbarim, at Sippara, where
copies of his code had been set up by Hammurabi, at the temple of
Merodach in Babylon, at the temple of Sin, at Larsa, or the temple of
Ishhara. Witnesses, it seems, were sworn, before God and the King, to
swear to the truth, touching the controversy, and documentary evidence
was used, much as it is today, to establish a right or title by written
evidence, or the agreement of the parties.[10] Having ascertained where
the right resided, it was the peculiar province of the judge to “cause
them to receive judgment”; the strife was accordingly quieted and the
judgment passed into an irrevocable decree, which the judge himself
could not set aside, without thereby working his own disgrace and
recall.[11] The decision was drawn up by the scribe and placed upon a
tablet, sealed by the judge and some of these irrevocable tablets, as
imperishable conclusions of these ancient law-suits have come to us,
after thousands of years, to tell their tale.[12]
This recipient of the wisdom of the sun-god, Hammurabi, did not stop
with humiliating and degrading the upright judge, who, to right a wrong
judgment was willing to admit his error to the advantage of a wronged
litigant, by granting a new trial, but in keeping with such a mistaken
standard, the Code of this ancient ruler of the Babylonians also punished
the unsuccessful surgeon, by removing the hand that performed an
unsuccessful operation;[13] by penalizing the unsuccessful veterinarian,
who lost his neighbor’s cattle or horse;[14] the builder was made liable
for all damages resulting from the fall of a building he had erected[15]
and, in general, it was the policy of this strict king, to raise the
standards of public duty, by punishing the incumbents of public office
and penalizing the members of the learned professions and vocations,
rather than cultivating the higher standards of the professions, by the
elimination of the unskilled therefrom.
The ancient Greeks also practiced the recall and ostracism of their most
eminent judges and other powerful public officials, who incurred the
ill-will of the populace, because of some unpopular decision, or the
envy of any considerable number of citizens, because of some alleged
undemocratic performance.
This ostracism, or recall, in Greece, is said to have been established by
Cleisthenes after the expulsion of the Peisistratidae[16] and the nature
and object of the recall, as then obtaining, is thus explained by the
philosopher Aristotle:
“Democratical states _used to_ ostracise and remove from the
city for a definite time, those who appeared to be preeminent
above their fellow citizens, by reason of their wealth, the
number of their friends, or any other means of influence.”[17]
The removal and ostracism of public officers, in Greece, does not seem
to have been used as a punishment for any crime or particular unfitness
developed by the official removed, but rather as a precautionary measure,
to dispense with the services of those who became so powerful as to
excite the fear or attract the envy of their contemporaries.[18]
The procedure whereby the recall or ostracism of a judge or other public
official was accomplished, in ancient Greece, was as follows: A space
was enclosed by barricades, with ten entrances, for the ten tribes. The
tribesmen entered the enclosed space, by these ten entrances, each with
a shell, or piece of earthenware, on which he wrote the name of the
official he wished recalled or degraded. The casting and enumeration of
the vote was regulated and supervised by the presidents dents of the
Senate and by the nine archons, and if as many as 6000 votes against any
one official was polled, this _ipso facto_ removed him from office and
he was obliged to leave the city of his residence within ten days from
that date; but if the total number of votes cast against him did not
equal 6000 he was not removed from office.[19] Because of the shell, or
piece of earthenware, upon which the vote was cast against the official
removed from office, the proceeding came to be known as the “earthenware
scourge.”[20]
By this proceeding, in ancient Greece, some of the most distinguished
men of the nation were removed, or ostracised, but when it was found
that their services were indispensable to the public welfare, they were
recalled to office. Cimon, Alcibiades, Themistocles, Aristeides and
many other prominent citizens suffered this degradation in Athens and
other democratical states, in Greece, for the recall was considered as a
necessary precaution to ensure absolute equality among the citizens of
the various commonwealths.
As a concrete illustration of the application of the recall to the
judiciary, in Greece, we will take the case of Aristeides, known as
“Aristeides the Just.” There is authority for the statement that the
judicial integrity and ability of this old Greek patriot was so generally
recognized, in Athens, that during the presentation of one of the
tragedies of Eschylus, when one of the characters was referred to as
a man who “cared more _to be just_, than to appear so,” all eyes were
instantly turned toward Aristeides, as the one man, who, of all other
Greeks, most merited the title of “The Just,” and from this time on
this truly royal, or divine appellation, according to Plutarch, was, by
universal consent, attributed to this virtuous man.[21]
This remarkable distinction aroused envy against Aristeides and it is
reported that Themistocles circulated a rumor that by determining and
judging causes in private, he was undermining the courts of judicature
and was secretly making way for a monarchy in his own person, so the
jealousies of the populace were so aroused against him that it was
decided to recall this upright judge. Plutarch relates the pathetic
circumstance, connected with the degradation and ostracism of this
Just Judge, that while the voting was taking place, in the railed
market-place, Aristeides was approached by an illiterate citizen, who
handed him his _ostracon_, or sherd and directed him to write his own
name upon the shell. Without disclosing his identity, Aristeides asked
the man if the Judge had ever done him any injury, when the voter
replied: “None at all, neither know I the man; but I am tired of hearing
him everywhere called _The Just_.”[22]
Aristeides made no reply to the man, but wrote as he directed and
returned the sherd to him, with his name written upon it. The six
thousand votes, necessary to procure his removal, or recall, having been
polled, he departed from his beloved Athens, praying, with uplifted
hands, that the Athenians might never have occasion to remember
Aristeides.[23]
The ostracism of Aristeides did not last for the ten years, for which his
punishment was decreed, under the Grecian law, however, for three years
later, when the Persian king, Xerxes, invaded Greece, Aristeides returned
and when the Persians were overcome he was completely reinstated in the
good graces of his countrymen and took a leading part in the affairs of
the government of Athens, without resentment, for he sought no other
gratification than that of serving his country with fidelity and honour.
Themistocles was another of the great citizen jurists of Athens to suffer
the recall or ostracism, by popular vote, while this ancient law obtained
in Greece.
As an index to the character and uprightness of this distinguished
Athenian, it is reported that before entering upon the trial of a cause
in which the poet Simonides, of Ceos, was interested, when requested,
by his friend, to overlook the underlying principles of the law, in the
consideration of the cause, this virtuous judge replied:
“Simonides, you would be a bad poet, if your lines ran counter
to the just measure and rules of your art, nor should I be a
good magistrate, if, for favor, I made false law.”[24]
Notwithstanding the signal and loyal services of this patriotic citizen
in the war with the Persians and his long service as a magistrate, when
Themistocles finally erected his temple of Diana of Best Counsel, with
himself represented by a figure in the temple, the Athenians also became
envious of him and made use of the law providing for the recall and
ostracism in order to humble his eminence and authority, as they usually
did with all those whom they believed to have grown too powerful, for
the equality deemed requisite in a popular government, for, as said by
Plutarch:
“The ostracism was instituted not so much to punish the
offender, as to mitigate and pacify the violence of the
envious, who delighted to humble eminent men, and who, by
fixing this disgrace upon them, might vent some part of their
rancor.”[25]
According to Aristotle, the law providing for the recall or ostracism of
public officials, by popular vote, in Athens, soon became mischievous,
for:
“Men did not look to the interests of the community, but used
ostracism for party purposes.”[26]
The last person against whom this old law was enforced at Athens, was
Hyperbolus, a demagogue of low birth and mean habits; the Athenians
considered that in applying this law to such a person, their own dignity
had been compromised, so the law providing for ostracism or recall, by
popular vote, in Athens, was discontinued.[27]
The law providing for the recall or ostracism of public officers, by
popular vote, known as “Petalism” among the Syracusans, was borrowed from
the Athenian law of ostracism. This species of recall, took its name from
the petals or leaves of the olive, on which was written the name of the
person whom the citizens voted to recall.[28]
Under the law of the Syracusans, known as “petalism,” the removed officer
or judge was banished for a period of five years only, as this was
considered a sufficient length of time to humble the pride and destroy
the hope of the degraded one.
Historians tell us, however, that this law of recall known as “petalism,”
by which the Syracusans voted to recall their distinguished men, by
writing their names upon the corolla, or leaf-part of the olive, did
not long continue in effect, since the fear of this “degradation or
humbling,” deterred the best qualified among the citizens from taking
any part in public affairs, and the degeneracy and bad government which
resulted from the selection of only the lowest types of demagogues for
public officers, led to the repeal of the law, B. C. 452.[29]
In the early Roman days the custom also obtained of submitting to the
people, by popular vote, the determination of accusations against judges
and other public officers, as matters of general public interest and
the _judicia publica_ of later times owed its existence to this antique
custom. Preators, or those invested with judicial functions were no
exception to the general rule, but all classes of public servants were
directly responsible to the Roman people and were liable to be called
upon, at any time, to answer to a charge which might mean banishment or
death.
In the early days of the Republic, every act of a citizen which was
deemed injurious to the State, or its peace, was called perduellio,
and the offender (perduellis) was tried before the forum of public
sentiment (_populi judicio_) and, if convicted of any violation of the
obligations he owed to the State, he was put to death.[30] The crime
known as _Majestas_, corresponding to the English charge of treason, was
apt, at any time to be preferred against the most upright public servant
and the opinions of the populace were found frequently at variance with
the justice of the cause. Justice was not always found to be consistent
with the expressed will of the multitude of Roman citizenship, for
their opinions were not always shaped or controled by the most exalted
standards of equality. Unpopular officials were frequently condemned,
regardless of the reason for the unpopularity, while the able orator or
popular citizen, was usually successful in his cause.[31]
Under the empire, judicial magistrates, such as Preators, were removed,
at the will of the Emperor, and we find that while Julius Caesar had
appointed sixteen, to settle the disputes of the Romans, Augustus
peremptorily removed four and thus reduced the number to twelve.[32]
The early Anglo-Saxons, like the Israelites of patriarchial days, while
recognizing that the power of distributing or enforcing justice, was
primarily lodged with the people, as a whole, constituting the great body
of society, understood the impossibility of administering justice, in
the concrete, by delegating the performance of such important functions,
without investigation or the understanding of correct ideals, to the
great unskilled mass of the people, in their collective capacity, so apt
to be carried away, in such matters, by variable sentiments, or whims
or caprices, based upon impulses, not always consistent with the proper
standards of right.
In order to insure the rendition of justice to every individual, or to
approximate as nearly as might be, to this object, this important power
was committed, therefore, at a very early day, in England, to specially
selected magistrates, possessing peculiar skill and fitness to hear and
determine causes in courts of law and qualified, by study and training to
discharge these difficult public functions with certainty and expedition,
according to correct standards.
Following the beneficent policy, illustrated by the old Mosaic code, of
bringing justice home to every man’s door, as nearly as may he, it was
the general plan of Anglo-Saxon society, as designed and shaped by the
great King Alfred and other early kings, to have such a system of courts
as would speedily dispense justice to all the people, under the various
conditions of society. Anglo-Saxon courts did not have the means of
compelling obedience to their mandates for the majesty of the law was not
the rule implicitly followed by all classes, in the beginning, but before
many centuries, following King Alfred’s time, we find that it had become
the fixed rule of life.[33]
From the early _gemot_, of the Anglo-Saxon period, we soon find the
regular county court and hundred court, where poor and rich alike were
entitled to receive justice, without price and without delay.[34] The
expeditious court of _piepoudre_, (the dusty foot court)—which dispensed
justice as speedily as dust falls from the foot[35]—furnished speedy
justice for small cases, while the _curia regis_, established by William
the Conqueror, held in the royal palace, presided over by the king
himself and his chief justiciar, with court barons, presided over by
the lords of the realm, furnished, for many centuries a complete system
of judiciture for the hearing of the ordinary causes in the realm.[36]
The King was the fountain of justice and it was his business to see
justice done, where the litigant failed to get his cause heard in the
jurisdiction of his own hundred. Of course as a natural result of such
a policy, the right of dispensing justice and receiving the profits
thereof, under the Normans, soon became hereditary rights, passing to
successive lords, whose judgments were supreme, unless the King himself
ordered the entering of a certain judgment.[37] The Court of King’s
Bench, the Court of Common Pleas and the High Court of Chancery, by
gradual processes of time, succeeded to the principal places among
the courts of later centuries, with the establishment by Henry II., A.
D. 1176, of the _justices itinerant_, who divided the realm into six
circuits and afterwards followed a fixed judicial system.[38]
From the reign of William the Conqueror, until that of King John, the
administration of Justice was still kept in the hands of the king, who
was regarded as the source of all justice and law; after the conquest,
the various prerogatives of the crown were increased and it was during
this precarious state of the law that the subjects were obliged to
purchase the favor of the sovereign, in order to obtain justice in the
king’s courts.[39]
So dependent upon the will of the sovereign was the tenure of the judge,
during the reign of Richard I., that we find William de Longchamp, chief
justiciary and chancellor, was removed from his office, by the intrigue
of John, Earl of Morton, the king’s brother.[40]
Judges were then but the servants of the king and he could move them
about as mere pawns upon the chess board of his own expediency,
or dismiss them, at a moment’s notice, if they refused to do his
bidding.[41] Hubert de Burgh succeeded Hubert Walter and Geoffry Fitz
Peter, as Chief Justiciar, but he seldom sat on the bench and was
removed in 1232,[42] when the Chief Justiciarship was committed to a
lawyer, named Stephen Segrave. The latter was disgraced and dismissed by
the King, in 1234, just two years after his appointment and from this
period until 1258, or until the revolution, the justiciarship was in
abeyance.[43]
In lieu of an appeal, or writ of error, which challenged the sufficiency
or correctness of a record or judgment, instead of the judge himself,
we find that from the time of Cnut, until the reign of Henry I., if a
judgment was challenged the proceeding was what was known as that of
“false judgment,” growing out of the practice of early Saxon days, when
a litigant who was dissatisfied with a decision or “doom,” charged the
doomsman who uttered it with falsehood.[44]
Until the thirteenth century the exception to a given judgment or decree
of an inferior court was tested by the charge of “false judgment.” The
record was transferred from the inferior tribunal to the superior one by
certain knights, appointed for the purpose. Frequently, these knights
would challenge the litigant questioning the correctness of the judgment
to trial by battle, to test the correctness of the decree[45] but if this
were not done, and the issue upon the legality of the finding of the
lower court thus determined, the justices of the king’s court proceeded
to examine the record.
If the King’s Justices found, on an examination of the record that the
judgment of the county, the hundred or the manor, were wrong, a fine
was assessed against the judge rendering the erroneous judgment and by
a finding of “false judgment” a Lord lost forever the right to hold a
court.[46]
Here was a method of recall, almost as bad as that existing under the
Babylonian Empire, for instead of removing the judge who attempted to
right a wrong, he was removed before having been given the opportunity to
get right.
As late as the year 1219 we find that the justices in eyre were brought
before the justices of the Court of King’s Bench, upon a charge of
“false judgment,” for having unlawfully condemned a man to death and
upon examination of the record by the Council, their judgment was set
aside and they were amerced with a fine for having entered such a “false
judgment.”[47]
It is little wonder, with this harsh rule obtaining, that by the time of
Edward I. history records that his justices had become extremely cautious
men, unwilling to decide nice points of law but referring every close
question to the Council for instruction.[48] The penalty of a mistake
or “false judgment” to them meant not only a fine, but disgrace and the
recall, if the King saw fit to so punish them, so this was not only
calculated to make a man cautions, but to prevent those of skill and
dignity from risking the expression of their judgment, when the penalty
for a mistake was such that it might forever ruin the future life and
hopes of the judge pronouncing judgment. The strange thing is that with
such a system, any self respecting man could be found to undertake the
performance of functions such as those required of a judge, when his
behavior was the means of ruining his future life, regardless of his pure
intentions in the performance of his official duty.
The tenure of office of the English judge continued for centuries, to
be at the pleasure of the Crown, and under the Plantagenets and the
Tudors, a Chief-Justice even, might be removed, like any other officer
of the King, at the pleasure of the sovereign,[49] and during this whole
period we find that the standards of the judiciary were in keeping with
this servile and undignified conception of the duties of such an office,
for the judges, with but few exceptions, during this period of servile
attachment to the Crown, were men of but mediocre ability, willing to
prostitute their high offices, to hold the esteem and favor of their
patron.
It was thus found, by experience, in England, that the proper discharge
of the impartial duties of the courts was consistent only with the
maintenance, at all times, of their dignity and independence, hence, it
was enacted, by statute, (13 William III., c. 2) that the commissions of
judges were to be held, not as formerly, during the mere pleasure of
the king, but so long as they should conduct themselves uprightly. They
can only be removed from office, upon the address of both houses of
Parliament and since the reign of George III., the commissions of judges
are not terminated with the death of the king, but they continue to
hold their office, notwithstanding the demise of the king, during their
good behavior, or until removed by the joint action of both houses of
Parliament.[50]
And not only did the English law raise the incumbent of the judgment seat
to a plane where he could view, with disdain the frowns of the tyrant
in the performance of his official functions, but that he might also be
free from the clamors of the populace, he was exempt from indictment for
any judicial act honestly done, or omitted, while sitting as a judge. In
other words, while acting in a judicial capacity, judges were not liable
for an honest mistake, but only for fraud or corruption.[51]
The judge is criminally and civilly liable, by the English common law
for judicial acts willfully and maliciously done; for acts clearly in
excess of his proper jurisdiction and for the wrongful exercise of a
mere ministerial act, whether honestly done or not,[52] but this was the
full limit of his liability and for honest mistakes in the performance
of his duty, he was responsible to no one and could be troubled only by
an accusing conscience for a mistake in the performance of a proper
judicial function.
Since the placing of the English judiciary upon this high plane where the
courts are wholly above and beyond the spoils of party or the favoritism
or fears of sovereignty, the respect paid to the majesty of the law
in that country, has challenged the admiration of the world. English
procedure is the pattern for the best governed countries on the earth
and the decisions of her courts have come to be ideals to be followed by
courts of other nations, seeking the attainment of justice.
The patriot fathers, familiar with the mistakes of the ancients and
the reasons for the establishment of the judicature of England, upon
an independent foundation, in the establishment of the judicial system
in the United States, adopted the method that history had commended to
England, of life tenure, with the power of removal for actual misfeasance
in office.
It was therefore provided in the Federal Constitution that judges of
the courts of the United States should hold their offices during good
behavior and they were subject to removal, only by impeachment, like
other civil officers of the Government.[53]
The first Congress, in 1789, enacted the first federal judiciary act,
formulated by Oliver Ellsworth, a member of the convention which framed
the Constitution and afterwards Chief Justice of the Supreme Court.
Speaking of this earnest patriot, Mr. Webster said that he was “possessed
of the clearest intelligence and deepest sagacity as well as the utmost
purity and integrity of character.”
Upon the relative functions of the different branches of government and
the necessity for an independent judiciary, Chief Justice Ellsworth said:
“If the general legislature should, at any time, overleap their
limits, the judicial department is a constitutional check. If
the United States go beyond their powers; if they make a law,
which the Constitution does not authorize, it is void; and the
judiciary power, the national judges, who, to secure their
impartiality, _are to be made independent_, will declare it
to be void. On the other hand, if the States go beyond their
limits, if they make a law which is a usurpation upon the
general Government, the law is void, and upright, _independent
judges_ will declare it to be so.”
This, by the gentleman who reported the bill in Congress for the
organization of the judicial department of the general Government,
demonstrates that those who formed our Government and framed our
Constitution, realized not only that the judgment seat should be
dominated by “the cold neutrality of an impartial judge,” but that this
essential prerequisite to the administration of justice, could not be
obtained by a cringing judiciary, depending upon a vacillating public
sentiment, as an index to its opinions, but would be effectuated only
through the untrammeled judgment of an independent court.
Next to Oliver Ellsworth, the man most active in the establishment of our
Federal Judiciary, was perhaps Alexander Hamilton, and upon the reasons
for an absolutely independent judiciary, this great lawyer, soldier and
patriotic statesman, observed:
“This independence of the judges is equally requisite to
guard the Constitution and the rights of individuals from
the effects of those ill-humors which the arts of designing
men or the influence of particular conjunctures sometimes
disseminate among the people themselves and which, though they
speedily give place to better information, and more deliberate
reflection, have a tendency, in the meantime, to occasion
dangerous innovations in the Government and serious oppressions
of the minor party in the community.”[54]
It was also clearly the object of the original thirteen colonies to
remove the judiciary from politics and thereby establish the independence
of the State Judiciary, as well as that of the Federal Government,
for the Constitutions of each of the original colonies provided for
an appointive judiciary.[55] Georgia alone set the bad example of
providing for an elective judiciary, by direct vote of the people, for
a short term, a practice that historians believe has caused much of the
degradation and humiliation of the state courts, in the past century.[56]
In most of the other states in the United States, the medium was
selected, between the life tenure and the complete independence of the
judiciary upon the one hand, and the recall and disgrace of the judge,
without the formality of a trial, upon the other, and it was provided for
the election of judges, for short terms of office, subject to impeachment
by the legislative branch of Government, in cases of misfeasance in
office.[57]
In one state alone was the English method adopted of appointing the
judges for life, or during good behavior, although four other states have
the appointive judiciary, and it is not strange that in this one state
we find the strongest state court in the United States and the one whose
judgments are received by the various courts of the other states with the
highest degree of respect.[58]
By both the Federal and State Constitutions, in the United States, the
judiciary has always been regarded as an equal and co-ordinate branch of
government, with the legislative and executive. It was accordingly held,
within the past century, that neither the President nor the Governor
could remove a judge, during the term of office for which he was elected
or appointed,[59] but the only way to remove or recall a judge, was by
impeachment for criminal or corrupt conduct.[60]
It is thus a serious question whether the experience of the past century,
in the United States, has vindicated the method followed in so many
states, of selecting judges, for a moderate term, by an elective system,
subject to impeachment for positive misfeasance in office. Many protests,
other than the growing demand for a popular recall of judges, may be
directly or indirectly traced to this method of selecting judges and as
the demands and protests come from states where the tenure to office is
for the shorter terms, it seems that this general policy, when applied
to the judiciary, is condemned both by the examples of history and the
practice and experience of the past century, in the United States.
There is little doubt but that the great Chief Justice Marshall would
have been recalled, after his decision against the Government, in the
trial of Aaron Burr, for treason, if the recall of judges by popular
vote had then obtained, in the United States. The power of Jefferson’s
administration was used, unsparingly, to obtain Burr’s conviction, and
he was already convicted in the forum of public sentiment, for the
populace believed him guilty. The Chief Justice, however, firm in the
consciousness of right, with the true judicial poise, disdained, with
equanimity, the clamor of the populace and refused to sacrifice the
individual, to appease the public wrath.[61] No wonder that through the
genius of this patriot, the Court he presided over was “placed upon a
pedestal of imperishable granite and has become the admiration of the
publicists throughout the civilized world.”[62]
If such a system had then obtained, the country would have been denied
the genius and ability of this just man, for he would never have been
responsible to the fickle flames of a vacillating public sentiment for
the correctness of his opinions. Addressing himself upon the necessity
for an absolutely independent judiciary, Chief Justice Marshall said:
“It is to the last degree important that he should be rendered
perfectly and completely independent with nothing to control
him but God and his conscience.”
Strange, is it not, that the opinions of our patriot fathers should so
nearly approach the views of the patriarchs of the Mosaic period, upon
the qualifications of the judge, for they too, believed that the courts
should be presided over by “able men out of Israel, such as feared God,
men of truth, hating covetousness” and when appointed to judge between
the alleged rights of the ancient Hebrews, they were admonished by the
Great Law Giver: “Ye shall not be afraid of the face of man, for the
judgment is God’s.”[63]
Right well did Moses warn the ancient judges of the Israelites against
the fear of men in the prerogative of the judgment seat, for public
sentiment has ever proven variable and the proper and just ideals do not
always govern the multitude. We have seen them to-day cry “Hosanna” and
to-morrow “Crucify Him.” And since the day when Pilate released Barabas
and delivered the Nazarene to the multitude, because it was popular for
him to do so, the judge who feared “the face of man” has been deemed
unworthy of the trust and dignity of the judgment seat.
The millions burned at the stake, during the witchcraft craze, in Europe,
were convicted before judges whose independence had not been established
by the laws of the realm and they simply followed the expressed will of
the multitude in the act of pronouncing judgment.[64]
In our own country, during the spread of this delusion, in Salem,
Massachusetts, before the courts were presided over by judges appointed
for life, there were nineteen innocent persons burned or hanged for
witchcraft in less than one year, and of these fourteen were women.[65]
In the case of the gentle Rebecca Nurse, hanged on Gallows Hill, on July
19, 1692, after her acquittal by a jury, because the people demanded her
blood, and a subservient judiciary bowed in humble submission to the
_vox populi_, we find one of the most unjust instances of the “recall of
judicial decisions” in the history of any country and one of the grossest
travesties upon justice that has been produced.[66]
The fear of the recall of judges, in France, during the provisional
Republic, following the French Revolution, caused the judges to send a
poor weak woman to the guillotine, because she possessed the foibles
of her sex and the flower of the aristocracy of the country was sent
innocent to their death, because a wrought up multitude demanded their
slaughter. Oh, for the glory of an independent judiciary, in such a
crisis and what a valuable lesson history affords against the precedents
made by public sentiment.
The courts alone protect the rights of the minority, for the legislative
and executive are subservient to the expressed will of the majority.
In the courts, however, the property of the rich and the poor alike is
protected from the might of the powerful and the will of the majority,
because the law of the land, in recognition of the right of the minority
to enjoy life, liberty and property, in this free land of ours, has
provided that no property can be taken, however popular it might be
to appropriate it, without just compensation, after a trial, upon due
process. But when the judges were but the servants of the majority, of
course the wishes of the majority controlled them, hence the necessity of
making them independent of both the majority and minority.
We have seen how the recall of judges by popular vote, in Babylon
and Greece weakened and destroyed their independence and made them
subservient tools of the popular and great leaders of the majority;
that in time the respect of the community for the judges so situated
was completely destroyed and that the fear of humiliation and disgrace
prevented gentleman of dignity and ability from seeking such a precarious
place and the whole judicial system was thereby perverted and deranged.
Commenting upon the condition which the recall of judges by popular vote
brought about in Greece, we have the valuable testimony of Aristotle who
said:[67]
“Those who have any complaints to bring against the magistrates
say: ‘_Let the people be judges_’; the people are too happy to
accept the invitation and so the authority of every office is
undermined. Such a democracy is fairly open to the objection
that it is not a constitution at all, for where the laws have
no authority there is no constitution.”
The framers of our constitution were familiar with the experiments of
ancient Greece and the mistakes of the early Anglo-Saxons, and this is
why the Constitution guarantees to “every state in the union a Republican
form of government.”[68]
Shall the illuminating precedents of history, ever be forgotten; shall
the land-marks of the fathers and the light-houses, planted upon the
shoals upon which other ships of state have floundered, be torn away? Are
the secrets of the old dooms day books of the Anglo-Saxons, to be read in
vain and the mistakes of the law of ostracism of the Athenians and the
discarded and condemned law of petalism, of the Syracusans, to be adopted
in the United States, in the twentieth century?[69]
If the day shall ever come, in the United States, when this mistaken
custom of the Babylonians and the ancient Athenians shall be generally
established, and the disappointed suitor and political demagogue can
gather his associates and bid the judge come down from his judgment seat
to answer the excited multitude for the correctness of his judgments,
then the safeguards of the Constitution, guaranteed to us by the patriot
fathers will be trampled under foot; this will cease to be a Government
of law and become a mere aggregation of people, where law is not the rule
of life.[70]
The statesmen of ancient Greece found that the judge could not be safely
tried by political methods, for the elements of personal ambition,
favoritism, money interest, envy and divers other equations, were
likely to be used in passing upon the qualifications of the judge, when
arraigned before the forum of a wrought up public sentiment. Nor would it
be different in any other country, under similar conditions.
In the days of Hammurabi, when the courts were so much concerned about
the trials of those supposed to “weave spells over a man” and his guilt
or innocence was determined by his survival of the torrent of the “holy
river;” when the standards of justice were such that the surgeon, who was
unsuccessful in an operation, lost his hands; when the veterinarian paid
for all the stock he could not cure; the builder, or artisan, all damages
resulting from a house he had built afterwards falling down. When, in
all the relations of life—save that of the royal prerogatives—the test
of human action was the exalted ideal of infallibility, then the judge
who set aside a judgment was humiliated and disgraced and peremptorily
removed from office. All morality was on a par with such ideals of the
exalted virtues like justice, and brides were auctioned off by their
fathers to the highest bidder and all human action was in keeping with
such dark days of superstition and delusion.
The behavior of the judge of the time of Cnut, in England, when he was
liable to be fined and removed for entering “a false judgment,” was in
strict accord with the low standards of justice then obtaining and from
this degraded position of the judiciary, to that of the exalted notion
of an absolutely independent judiciary, there was the same difference in
the quality of justice administered, that obtained between the generally
ignorant men selected to parcel out the right, for remuneration, in those
dark days and the pure and scholarly jurists, who, for centuries have
made the administration of the law, in England, the admiration of the
civilized world. The history of the judiciary, in England, has certainly
demonstrated the wisdom of an independent judiciary, for no country
pays the same high regard to the majesty of the law and in none are the
correct ideals in legal standards more nearly approximated, than in
England.[71]
One does not have to become an Anglo-Maniac to feel a just pride in
the stability and perfection of an institution, such as the English
judiciary, for all who make law a rule of life, can but revere the
approximation of an ideal where its reign is supreme.
In the consideration of this antiquated and condemned institution, known
as “Judicial Recall,” space has forbidden that we should do more than
merely touch upon the centuries as mile-stones, in hurrying through the
ages. From the facts of history presented, however, it seems strange that
in the evolution of the race, amid the cultivated ideals of our twentieth
century civilization, so many of our states would seemingly refuse to
profit by the mistakes in the Leges Barbarorum of the dark ages; that
they would apparently turn aside from the sad picture of the early
struggle for law and—defying the axiom that we can but “judge the future
by the past of man”—indulge the vain hope of utilizing the popular recall
of judges as a panacea for all the social evils of modern times.
The patriot fathers, profiting by the accumulated wisdom of the past,
builded an edifice in this free land of ours, bottomed upon the solid
foundation of constitutional principles, sufficiently enduring to
withstand the most tempestuous seas of partisan politics, because they
profited by the record which history recorded of the stranded wrecks
of states upon the shores of time. Our fathers and their children
have occupied this temple for over a century and we should have a care
how we undermine the walls or remove the high priest of our liberties,
with rough hands, from the sacred altar. Many a hearth-stone in this
and future ages will need the protection guaranteed by the fundamental
principle of government, which perpetuates the independence of the
judicial department and the statesmen of the present age, without
thinking of the permanence of their work, are making right and wrong for
succeeding ages and by tampering with the institutions that time has
approved, they may incur the everlasting condemnation of the citizens of
succeeding commonwealths.
FOOTNOTES:
[1] Speaking upon the antiquity of courts and judges, John, in his
“Babylonian and Assyrian Laws,” says: “Partly because specific reference
to judges and legal processes are not necessarily to be expected in
historical inscriptions, and partly because we do not really know which
are the earliest monuments of the human race, it is impossible to decide
when law-courts first came into existence. It is generally admitted,
however, that the stele of Manistusu is one of the earliest known
monuments. There we read of Galzu, a judge. There also we find many of
the officials, who later acted as judges upon occasion. Hence it may
fairly be said that judges were to be found in ancient Babylonia from
time immemorial. They must have decided what was right when there was no
written law to which to appeal.”
“Babylonian and Assyrian Laws,” c. v. p. 80.
[2] Exodus, c. 18, 26.
[3] Exodus, c. 23-2.
[4] Deuteronomy, 1-17.
[5] Deuteronomy, 17-9, 12.
[6] John’s “The Oldest Code of Laws in the World.”
[7] New York Independent, Vol. 55, pt. 1,—January-March, 1903—p. 67;
John’s “Babylonian and Assyrian Laws.”
[8] John’s “The Oldest Code of Laws in the World,” p. 2; Code of
Hammurabi, sec. 5; John’s “Babylonian and Assyrian Laws,” p. 44.
A notable case of the recall of judges as late as five hundred years
before Christ occurred among the Medes and Persians, who boasted of their
unalterable decrees, once rendered by the incumbent of the _dangerous_
judgment-seat.
Herodotus tells the thrilling story of the striking example furnished by
King Cambyses, in his final recall of the unjust judge, named Sisamnes.
He caused him to be killed and flayed and the judgment-seat to be covered
with his skin. He then appointed the son of Sisamnes to be his successor,
but charged him, while sitting in judgment, to remember the fate of
his father. This example might be resorted to by the agitators for the
judicial recall, as a more terrible example to an unjust judge than the
mere recall and degradation.
[9] John’s “Babylonian and Assyrian Laws,” p. 82. Whether the reversal of
an erroneous judgment was provided for by appeal, does not appear, from
the Code.
[10] John’s “Babylonian and Assyrian Laws,” p. 90.
[11] _Ante idem._
[12] _Ante idem._ p. 92.
“Shamash-bel-ili sues Nidnusha concerning a house bought by him of her.
The judges grant him two sheckels of silver. Hammurabi I.”
“Shi-lamazi sues her brothers for a field and wins her case.”
“Zariku was put to the oath and replied to Erib-Sin. He was told that as
his domicile was at Sippara, he must not make his appeal to the judges of
Babylon, so his case was dismissed. Hammurabi 28.” This was a case of the
wrong venue and hence, a lack of jurisdiction over the subject-matter.
“Ilushu-abushu hired a pack-ass, of Ardi-Sin and Silli-Ishtar and lost
it. The judges awarded them sixteen sheckels of silver as compensation.
Apel-Sin. 5.”
“Mar-ersitim left a female slave, Damiktum, to Erib-Sin. His wife and
brother disputed the legacy. The judges inspected a document by which
Erib-Sin had granted the slave to his wife, so they return her to the
wife. Hammurabi.”
“A slave, Bariki-ilu, was pledged for twenty-eight sheckels to Ahinuri,
in the thirty-fifth year of Nebuchadnezzar. In the next year we find him
in possession of Piru, his wife, Gaga, and a cousin, Zirra. They sold him
for twenty-three sheckels to Nabu-Zer-ukin. He must have fled from his
new master, for four years later the same people pledged him. He was not
a satisfactory pledge, for next we find that Gaga’s daughter, about to
be married, this slave was set down as a part of her marriage portion,
and she gave him to her husband and his son, and he remained in their
possession, but when his mistress died, he was handed over to the great
banker, Itti-Marduk-balatu. During the reign of Nabonidus, the slave,
Bariki-ilu, attempted to establish his freedom, by pretending to be the
adopted son of Bal-rim-ani, but was made to confess that he had twice run
away from his master and had been many days in hiding, so it was adjudged
that he must return to servitude.” John’s “Babylonian and Assyrian Laws,”
p. 181.
[13] Code Hammurabi, Sec. 215; John’s “Babylonian Laws,” p. 63.
[14] _Ante idem._ Sec. 225; John’s “Babylonian Laws,” p. 63.
[15] _Ante idem._ Sec. 229; John’s “Babylonian Laws,” p. 64.
[16] Diod. Sic. xl, 55; Aelian, V. H. xiii, 23; Smith’s Greek and Roman
Antiquities.
[17] Polio, iii, 8.
[18] Smith’s Dictionary of Greek and Roman Antiquities, _sub nom._
_Banishment_.
[19] Schol. in Aristotle, Equit. 865; Smith’s Greek and Roman Antiq.
_supra_.
[20] _Ante idem._
[21] Plutarch’s Lives.
[22] Plutarch’s Lives.
Aristeides, from the history of the man, as given us by Plutarch was to
be classed with that altruistic lot of patriots:
“Who cared not to be great
But as they serve or save the State.”
[23] Plutarch’s Lives.
[24] Plutarch’s Lives.
[25] Plutarch’s Life of Themistocles.
[26] Aristotle, c. 7, p. 135; Smith’s Dictionary of Greek and Roman
Antiquities.
[27] Plutarch’s Life of Aristeides; Smith’s Dictionary of Greek and Roman
Antiquities.
[28] Smith’s Dictionary of Greek and Roman Antiquities.
[29] Niebuhr, “History Rome,” i, 504; Diod. Soc. xl, c. 87; Smith’s
Dictionary of Greek and Roman Antiquities.
[30] Livy, ii, 41; _idem._, vi, 20.
[31] Gaius, i, 2; _idem._, 20; Tacitus, History, i, 84.
[32] Niebuhr, History Rome; Livy, Sallust, Tacitus, Arnold, Gibbon.
[33] I. Pollock and Maitland History English Law, p. 37.
[34] _Ante idem._, p. 42.
[35] Coke, 4 Inst. 272.
[36] I. Reeve’s History English Law, 264; I. Pollock and Maitland’s
History English Law, 40, 45.
[37] I. Pollock and Maitland’s History English Law, pp. 72, 73; Memoirs
de la Societe des antiquaires de Normandie, vol. xv, pp. 196-197.
[38] I. Reeve’s History English Law, 273.
[39] I. Reeve’s History English Law, pp. 283, 465, 466.
[40] I. Reeve’s History English Law, 280.
The conditions existing before the Barons exacted from King John the
various guaranties of the Great Charter are known to all readers of
English History. The reasons why they stipulated that “Right shall
not be sold, delayed or denied”; that the king should only appoint
“justiciaries, sheriffs and bailiffs, of such as know the law of the land
and are disposed duly to observe it” is emphasized by a consideration of
the many highhanded proceedings that the people of that long suffering
country had been subjected to before this Great Charter of liberty was
exacted from King John. (I. Reeve’s History English Law, 471, 472.)
[41] I. Pollock and Maitland’s History English Law, p. 204.
[42] _Ante idem._ p. 204.
[43] _Ante idem._
[44] Cnut, ii, 15, sec. 2; Edgar 1, 3; Brunner, D. R. G. ii, 356, 365;
II. Pollock and Maitland’s History English Law, 666.
[45] II. Pollock and Maitland’s History English Law, 667.
[46] Note Book, Pl. 1412; Glanvill, viii, 9; Edgar, iii, 3; Cnut, ii, 15;
Leg. Will. I., 39, sec. 1, II. Pollock and Maitland’s History English Law,
p. 667.
[47] Note Book, Pl. 67; Note Book, Pl. 1166; II. Pollock and Maitland’s
History English Law, p. 668.
[48] II. Pollock and Maitland’s History English Law, p. 672; Bracton, f.
186.
[49] Verplanck.
[50] I. George III., c. 23.
It has long been axiomatic, in England, that the Crown even, cannot
interfere with the disinterested performance of its powers, by the
judiciary. 2 Hawk. P. C. 2.
[51] Yates vs. Lansing (N. Y.), 5 Johns xx. 282; Hamilton vs. Williams,
26 Ala. 527.
[52] State vs. Graves, 8 Mo. 148; 40 Am. Dec. 131; Stone vs. Augusta, 46
Me. 127; Revill vs. Pettit, 60 Ky. 314; Reed vs. Conway, 20 Mo. 22; Gault
vs. Wallace, 53 Ga. 675; Cope vs. Rainey, 49 Tenn. (2 Heisk.) 197.
[53] U. S. Con. Art. III., sec. 1.
[54] See Paper “The Judiciary and Public Sentiment,” read before Mo. Bar.
Assn. at St. Joseph, Mo., September, 1906, Proc. 24’ Annual Meeting of
Association.
[55] See interesting article on “Recall of Judges,” by Albert Fink, in
North American Review, vol. 193, p. 680.
The Massachusetts Bill of Rights, adopted in 1780 declares:
“It is the right of every citizen to be tried by judges as free,
impartial and independent as the lot of humanity will admit.” Would that
more of the States had followed this lead of the Great Commonwealth of
Massachusetts.
[56] Upon this subject, Dr. Fiske observed: “It was Georgia that, in
1812, set the bad example of electing judges for short terms by the
people, a practice which is responsible for much of the degradation that
courts have suffered in many of our states and which will have to be
abandoned before a proper administration of justice can ever be secured.”
[57] Thorpe’s American Charters, Constitutions and Organic Laws.
[58] Massachusetts and New Hampshire judges are appointed and hold during
good behavior, but in New Hampshire the judge is subject to recall by the
Legislature and on four different occasions, judges have been removed in
that state by this method.
[59] United States vs. Guthrie, 58 U. S. (17 How.) 284; State, ex rel,
Vail, vs. Draper, 48 Mo. 213.
[60] Evans vs. Foster, 1 N. H. 374; McDowell vs. VanDusen, 12 Johns. 356.
[61] From Address delivered by Judge John F. Philips, December 22’, 1912,
at Omaha Club, Omaha, Nebraska, upon the “Judicial Recall.”
[62] _Ante idem._ The great Wirt was asked, after the Burr trial: “Why
did you not tell Judge Marshall that the people of America demanded a
conviction?” And his reply showed not only the high-minded, professional
gentleman that he was, but the patriotic citizen as well. It was: “Tell
him that? I would as soon have gone to Herschel and told him that the
people of America insisted that the moon had horns as a reason why he
should draw her with them.”
[63] Deuteronomy, 1-17.
[64] Dr. Sprenger, in his “Life of Mohammed” says 9,000,000 were burned.
[65] Upham’s “Salem Witchcraft in Outline”; Nevin’s “Witchcraft in Salem
Village.”
[66] Upham’s “Salem Witchcraft in Outline.”
[67] North American Review, Article by Albert Fink, vol. 193, p. 690.
[68] North American Review, vol. 193, p. 673, for decisions holding
that a Republican form of Government is one where the whole people are
represented by their representatives.
[69] Mr. Rome G. Brown, in his interesting paper before the Minnesota Bar
Association, confidently asserts that the United States Supreme Court
ought to hold the judicial recall, in the United States as contrary to
the Federal Constitution, because a denial of the Republican form of
Government, guaranteed by this immortal document.
[70] See Excellent Paper of Judge John F. Philips, read at Omaha Club,
Feb. 22’, 1912.
If such a custom generally prevailed, it is probable that in the due
course of time we would indeed have:
“Red ruin and the breaking up of laws.”
[71] It is a just source of pride to Englishmen that not a single
lynching has occurred for three-quarters of a century, in a country
governed by the English law.
Illustrative of the complete independence that for centuries has
characterized the English judiciary, it is reported that when accosted
by King James I. and asked how he expected to decide a given case,
pending in his court, Sir Edward Coke, then Lord Chief Justice of England
replied: “When that case shall come before me, I will decide it as a good
judge ought to decide it, in accordance with the law and the evidence.”
Percy’s Anecdotes on Justice.
CHAPTER IV.
TRIAL BY BATTLE.
Trial by battle, sometimes called “wager of battel,” or “battile,” as
Bouvier refers to it, could be claimed in appeals of felony and in
certain civil cases and was of frequent use in affairs of chivalry and
honor.[1]
No tradition can tell us just when the trial by combat first came into
existence.[2] Wager of battle was a natural accompaniment of the state
of society existing when men were accustomed to take the law into their
own hands and test the right by the might that could back it up. Battle
has always been the law among the lower animals and in the evolution of
the species, before society had developed the standards of our present
civilization, the males of the human species, in barbarous nations, won
the females much oftener through the law of battle, than by the display
of intellectual attainments.
Trial by battle, therefore, may be traced to the most ancient period.
Sacred writ gives an analogous contest, in the memorable battle between
King David and Goliah, and the destinies of nations, instead of the
rights of individuals, were made to depend upon the outcome of the
combat. Goliah challenged the Israelites:
“Choose you a man for you, and let him come down to me. If he
be able to fight with me and to kill me, then will we be your
servants; but if I prevail against him, and kill him, then
shall ye be our servants and serve us.”[3]
And, as the principals in the trial by battle always relied upon the
grace of God to further the righteousness of their cause, so King David,
in his battle, relied upon the God who had saved him from the lion and
delivered him from the paw of the bear, to bring to a successful issue,
his contest with the giant. He went to the fight in the name of the “Lord
of Hosts,” the God of the armies of Israel, and proclaimed that it was
“His battle,” and he fought not with sword and spear, but would deliver
the Philistines into his hands.[4]
The soldier and historian, Paterculus, is authority for the statement
that during the first half of the first century, when Quintilius Varus
attempted the settlement of disputes among the Germans by law, he
discovered that their custom had been to decide all such controversies
by single combat.[5]
Neilson[6] refers to the traditional statement of King Frotho the Third
in the misty age of Denmark, that he “deemed it much fitter to contend
with weapons than with words,” in the settlement of private disputes,
and he shows how this sentiment found firm lodgment in the breast of the
Norseman, whose supreme God was Odin, the God of war, for valor was the
jewel of his soul.
Selden states that the decision of suits by appeal to the God of battle
is said to have been invented by the Burgundi, one of the northern of the
German clans that flourished before the subjugation of the Gauls by the
Romans. And it is true, that the first written injunction of judiciary
combats that we meet with is in the laws of Gundibald, A. D. 501, which
are preserved in the Burgundian code. It was not a mere local custom of
that particular tribe, however, but was the common usage of all those
warlike people, from the earliest times.[7]
Judicial duels, or combats by individuals, according to forms of law,
obtained among the ancient Goths, in Sweden,[8] and this form of
“searching out hidden truths,” as Selden observes, was practiced by the
Russians, Hungarians, Almains and Normans.[9]
History records that the Emperor Otho, A. D. 983, at Verona, held a diet
at which were assembled many lords and princes from France, Germany
and Italy and in order to discourage perjury in judicial trials, the
convention substituted the trial by battle in all cases, in lieu of the
oaths or testimony of witnesses.[10]
In the early feudal ages, “when knighthood was in flower,” chivalry
played no small part in the growth and development of the fixed rules
governing the trial by battle.[11] Chivalry has always been in the
world, but it finds expression according to the customs obtaining in the
different stages of man’s growth and development. Because fighting was
then the order of the day, in the olden times, knights were sacrificed
by personal combat, for their ladies faire. When trial by battle was
on the decline, Sir Walter Raleigh expressed the spirit of chivalry of
that period, by spreading his cloak upon the ground for his queen to
walk upon. And in this our twentieth century, with the progress of the
race,—be it ever recorded to the credit of the manhood of the period—this
same spirit was exemplified by the splendid lesson of hundreds of noble
men heroically accepting the terrors of a mighty sea, in order to rescue
the women and children from a sinking ship.[12]
The deeds of knighthood, in the England of the middle ages, came to be
gauged according to fixed and settled rules and customs and finally
the _Court of Honor_, was recognized, the same as the court of civil
procedure, for the trial of affairs of honor, for, says Blackstone: “This
court of chivalry, can order reparation at the point of honor.”[13]
The proceedings of this court were by petition, in a summary manner, and
the trial, instead of by a jury, as at the present day, with witnesses,
was by individual combat.[14]
The _Court of Honor_ was not a court of record and it could not imprison,
but the marshalling of arms, was then the pride of the best families of
the kingdom and the success in these affairs of honor, because of the
spirit of chivalry of the times, was just as much guarded as was the
attainment of justice through the procedure of the civil courts. Heralds
and knights seconded and backed up the appeals of the principals in such
encounters and the sacrifice of the individual in these mortal combats
was regarded as a trifle, compared to the preservation of the family name
and honor and since his attainder and the corruption of his blood and
family name depended upon his success in the combat, the wager of battle
was welcomed, as the only vindication of one’s manhood and honor.
The trial by battle, therefore, at a very early day, proceeded according
to fixed, settled rules of law and was a recognized mode of legal
procedure, just as much as was the trial by judicial proceedings. In this
it differed from duelling, in that the latter was the fighting of two
persons, at an appointed time and place, in the absence of law and order.
In other words, the trial by battle was a mode of legal procedure, while
duelling was a crime, in that the duel was not conducted according to
legal rules and precedents, but the participants took the law into their
own hands.[15]
Trial by battle was introduced into England, among other Norman customs,
by William the Conqueror. The right could only be claimed in three
classes of cases, i. e., military, or in the court martial, or court
of chivalry or honor;[16] criminal, or in appeals of felony,[17] and
civil, or upon issue joined in a writ of right, the last and most
solemn decision of real property.[18] The reason why battle was allowed
in “writs of right,” was said to be on account of the inability of
establishing one’s title by action at law, in case of the death of
witnesses or the absence of other evidence.
In the criminal practice the one exercising the right to wager of battle
was called the “Appellee,” from the French word “Appeller,” meaning “to
call,” the term being used because of the practice of calling the parties
before the court.[19]
The points of difference between a trial by combat, under the writ
of right and one for treason, are noted by Neilson, in his “Trial by
Combat” and principal among them are, that the trial at law could be
fought before any judge, while the trial for treason had to be before
the King, Constable or Marshal, or a special deputy; the forms of oath
were different; the duel at law was fought on foot, while for treason, it
was fought on horse-back; the weapon of the trial at law, was the baton,
while that for treason, was the sword and spear; the position of the
combatants, in a writ of right, was north and south, while in a trial for
treason, it was east and west, and in the battle under a writ of right,
since the trial itself was the judgment, there was no right to stop the
trial, but in a trial for treason, the king, or his representatives could
stop the trial, if he so desired.[20]
In the appeal of felony, the prosecutor was bound to offer combat with
his own body, but in the writ of right, the demandant could either
participate in his own behalf, or through the medium of his champions’
services.[21] But even in the Norman days, when battle was in vogue,
“battle did not lie” unless there was a charge of crime and at least
ten shillings’ worth of property was in dispute.[22] In civil cases,
professional pugilists were commonly employed and perjury became so
common that the form of the compurgator’s oath was changed to prevent the
wholesale commission of this crime.[23] The commonest cause of battles
were those urged by an “approver,” or convicted criminal, whose pardon
was conditional upon his ridding the kingdom of some half dozen or more
of his associates, by his “appeals.” This custom, however, began to
decline so rapidly, that in Bracton’s day the annual average of battles
did not exceed twenty.[24]
The old books indicate that in appeals of felony, the custom was for
the combatants to have their heads shaved, not to prevent the opponent
from catching hold of the hair, but because it was an old religious
custom.[25]
In discussing the trial by combat, in finance, Neilson shows how, during
the reign of Henry II., large sums were paid to crown officers, for the
privilege of the duel; for refusal to fight, or absence, and for fines
for wrongfully claiming the right to the duel, and the same thing was
true in the reign of Richard I.[26]
During the reign of Edward III. the trial by battle was discouraged by
the legislation of the period and trial by jury was encouraged. The right
of trial by battle was taken away in the case of an appeal for breaking
the king’s prison, and the right was also denied to one “taken with the
manner.”[27] And during the reigns of Edward V. and Richard III., the
trial by battle in criminal cases had become so obnoxious to the people
of England that it came to be established that if a valid indictment
was pending for the offense charged, the right of trial by battle was
denied.[28]
In the reign of Henry VI., Priscot, Chief Justice, and Needham, one of
the Justices, held that in an appeal for treason, the battle could only
be had before the constable and marshal.[29]
Wager of battle had been but seldom invoked in actions of debt, and
in the thirteenth century, it was no longer allowed in this class of
actions.[30]
A generation after the Norman conquest, Henry I., by Charter to the City
of London,[31] granted exemption from the trial by battle to citizens
of London, or peers of the realm, in certain cases, and a woman, a
priest, an infant, a man of sixty or over, or one maimed, lame, or blind,
was entitled to refuse the wager of battle and insist upon a trial by
jury.[32]
In civil combat, upon issue joined in a writ of right, the tenant or
defendant had to try the issue by combat, until the reign of Henry II.,
when the Grand Assize was provided for, and then he had his election
either to try the issue by combat or by the jury trial, provided for by
this king in this class of cases.
Glanville,[33] who wrote during the reign of Henry II., after the tenant
was given his election to try his writ of right either by combat, or by
the Grand Assize, thus describes the procedure then obtaining under the
rule of civil combat:
“Both parties being present in court, and the demandant
claiming the land in question, the tenant may require the view
thereof: but as to this, there is respite to be made, to the
end it may be known, whether the defendant have not more land
in that town than what is in question; and if he have not, then
he shall not be allowed any respite; but if he have more, he
shall; and likewise have assignation of another day; and, when
he shall be so departed out of the court, at three reasonable
essoins,[34] the defendant may recover anew; and the shireeve
of the county wherein the land lieth shall have a writ directed
to him to send freeholders of his county to view the land.
“Then, after three reasonable essoins, concomitating the view
of the said land, and both demandant and tenant appearing again
in court, the demandant setteth forth his claim in this manner:
‘I do challenge against T. H. half a knight’s fee, or two
carucates of land in that town, as my right and inheritance;
and whereof, my father, or grandfather, was seised in his
demesne, as of fee, in the time of King Henry I., or after the
first coronation of the King that now is, and whereof he hath
taken the profits, to the value of 10s. at the least, viz.,
in corn sowed, and other commodities; and this I am ready to
try by this my freeman N.; and if any mischance shall befall
him, then by that other person who hath seen and heard this.’
Or thus,—‘And this I am ready to try by this my freeman, S.
unto whom his father, on his death-bed enjoined, upon the duty
wherein a son is obliged to a father, that if at any time
he should hear of a suit for that land, he should adventure
himself, by combat for it, as that which his father had seen
and heard.’
“The claim and demand of the demandant being thus made, it
shall be in the choice of the tenant, either to put himself
upon trial for the same by _combat_, or to put himself upon
the _great assize_ of our lord, the king, and to require a
recognition which of them hath most right in that land.
“And if he will defend it by _combat_, he is then obliged to
defend the right of the demandant word to word as he sheweth
it against him, either by himself or some other fitting
person; but note, that after the _combate_ shall be thereupon
waged, it behoveth him who holdeth the land, to defend it by
_combate_, and thenceforth not to put himself into the _great
assize_; and, after the _combat_ waged, he may again reasonably
essoins himself thrice, as for his own person, and thrice for
the person of his champion. All which essoins being made, as
they rightly ought to be, it is necessary that, before the
_combat_ be begun, the plaintiff do appear in court, and have
his champion there in readiness to fight; nor may he bring any
other champion than one of those, upon whom he did put the
trial of his cause; neither may he change another for him,
after the first waging of the battle....
“And if the defender (i. e., the champion) shall happen to be
vanquished, his lord shall lose the land by him claimed, with
the profits and commodities thereof, at the time of the seisin
found in that fee, and shall never after be heard in court
again for the same; but whatsoever things shall be determined
by combat in the court of our lord the king are to remain firm
forever; and thereupon there shall be a precept directed to
the shireeve, that the victor shall have the land which was in
dispute....
“This, if the demandant shall prevail in the combat; but if
he be overthrown by the vanquishing of his champion, then the
tenant shall be acquitted from his claim without recovery by
the demandant.”[35]
Selden describes the ceremony governing the civil combat, upon issue
joined upon a writ of right,[36] as follows:
“A piece of ground is in due time set out of sixty feet square,
enclosed with lists; and on one side, a court erected for the
judges of the court of common pleas, who attend there in their
scarlet robes; and also a bar is prepared for the learned
serjeants at law. When the court sits, which ought to be by
sun-rising, proclamation is made for the parties and their
champions, who are introduced by two knights, and are in a
coat of armour, with red sandals, bare-legged from the knee
downward, bare-headed, and with bare arms to the elbows. The
weapons allowed them are only _batons_, or staves of an ell
long and a four-cornered leather target, so that death very
seldom ensued this civil combat ...
“When the champions, thus armed with batons, arrive within the
lists or place of combat, the champion of the tenant then takes
his adversary by the hand and makes oath that the tenements in
dispute are not the right of the demandant; and the champion
of the demandant then taking the other by the hand, swears in
the same manner that they are; so that each champion is, or
ought to be, thoroughly persuaded of the truth of the cause he
fights for. Next an oath against sorcery and enchantment is
to be taken by both the champions in this or a similar form:
‘Here this, ye justices, that I have this day, neither eat,
drank, nor have upon me neither bone, stone, no grass nor any
enchantment, sorcery, or witchcraft, whereby the law of God
may be abased, or the law of the devil exalted, so help me, God
and his saints.’
“The battle is thus begun, and the combatants are bound to
fight till the stars appear in the evening; and if the champion
of the tenant can defend himself till the stars appear, the
tenant shall prevail in his cause; for it is sufficient for
him to maintain his ground, and make it a drawn battle, he
being already in possession; but if victory declares itself for
either party, for him is judgment finally given. This victory
may arise from the death of either of the champions, which
indeed, hath rarely happened, the whole ceremony, to say the
truth, bearing a near resemblance to certain rural athletic
diversions, which are probably derived from this original; or
victory is obtained, if either champion proves _recreant_;
that is, yields, and pronounces the horrible word of _craven_,
a word of disgrace and obloquy rather than of any determinate
meaning: but a horrible word it indeed is, to the vanquished
champion, since, as a punishment to him, for forfeiting the
land, of his principal, by pronouncing that shameful word, he
is condemned as a recreant _amittere liberam legem_; that is,
to become infamous, and not be accounted _liber et legalis
homo_ being supposed by the event to be proved foresworn, and
therefore never to be put upon a jury, or admitted as a witness
in any cause.”
Combat in criminal cases was allowed, according to Selden[37] not only in
cases of treason but
“For the trial of a particular objected misdeed, cognizable
by the ordinary course of the common law; and of these the
justices of the king’s bench have the imposition; it is
likewise permitted for the purgation of an offense against
military honor, which the high court of chivalry is to marshal
by the law of arms.”
The military form of trial by combat, on a criminal charge was as follows:
“First a bill of challenge is, together with a gauntlet,
delivered unto the court by the appellant. The defendant
denieth the point of the bill, and excepteth the gauntlet.
“Then, if the appellant have no witnesses to prove the matter
of his appeal, the marshal prefixes a day, within forty, for
deraigning the combat, taking pledges of both parties, to
appear at the day, and to do battle between sun-rising and
sun-set.
“The place appointed for the combat is a hard and even
ground, railed within certain lists, sixty feet in length
and forty feet in breadth; and without the lists are certain
counter-lists, without which the marshal’s men come, as well to
attend any extraordinary accident, within the lists, as to keep
off the press of the people without.
“Their weapons are appointed, a glaive, a long sword, a short
sword, and a dagger. At the day the appellant doth appear and
come to the east gate of the lists, where he is admitted to
enter by the marshal himself, together with his arms, weapons,
victual and also his council with him; and then is brought to a
certain place, within the lists, where he attends the coming of
the defendant.
“The defendant, if he appear not, is called by three
proclamations, made by the marshal of the king of heralds of
that province wherein the battle is deraigned. The marshal’s
clerk doth enter into his register their coming, the time of
their coming, and the manner, whether on horse-back or on foot;
the fashion of their arms and their weapons; the colour of
their horses and the like.
“The marshal doth measure their weapons; and then the marshal
hath a clerk ready, who brings forth the crucifix and a mass
book, whereupon both the appellant and defendant do take their
oaths.
“The bill of challenge of the appellant and the answer of the
defendant, is read unto them by the marshal’s clerk; and then
they take their oaths; First, that their appeal and defense is
true; Second, that neither has advantage of other by weapon;
Third, that either would do his best endeavour to vanquish his
enemy.
“Then proclamation is made at every corner of the lists, for
the clearing and voidance of the lists. Then the combatants,
being ready, the constable and marshal, sitting at the king’s
feet, pronounce these words, with a high voice: ‘_Lesses
les aller, lesses les aller, lesses les aller et faire leur
devoir._’
“In the fight, if either of the parties do give any sign of
yielding; or if the king, being present, do cry ‘_Hoe_,’ the
constable and the marshal do part them, and observe precisely
who hath advantage or disadvantage, either of other at that
instant; for if they should be awarded to fight again, they
are to be put in the same posture as they were before. If the
king take up the matter, they are brought honorably out of
the lists, neither having precedency before the other. If the
battle be performed, and one party be vanquished, then, in
case of treason, the rails of the lists are broken down, and
the party vanquished is drawn out at a horse-tail and carried
presently to execution by the marshal.”[38]
The older books abound in many illustrations where the appellee, when
charged by a formal accusation, with some felony, claimed the wager of
battle to establish his innocence.[39]
Neilson refers to the single combat between Corbis and Orsus, fought
in the presence of Scipio, for a principality in Spain.[40] And the
traditional combat, in prehistoric Roman days, between the Horatti and
the Curiatti is also cited, to show that the institution of trial by
combat was not unknown to the Romans, at an early day.[41]
Geoffrey of Monmouth, describes the battle between King Arthur and
Flollo, the Roman Tribune, at the siege of Paris, to determine who would
be the master of the realm, and this realistic story of the battle, on
horses, with fixed lances and the interesting narration of how King
Arthur, after his horse was killed under him, drove his sword through the
helmet of Flollo and cut his head in two, reads like some story from the
works of fiction.[42]
Neilson notes[43] that in Mediaeval Germany, disputes between men
and women were settled by combat, for chivalry does not seem to have
penetrated into the warlike confines of this sturdy nation, at this
period, although some notion of equalizing the contests between the
weaker combatant and the stronger, obtained. The male was handicapped, in
such contests, by placing him in a tub, sunk waist deep in the ground,
with one hand tied behind his back. The woman was allowed a paving stone,
sewed in the end of the long sleeve of her shift, or under garment and
she was accorded the privilege of manouvering around her antagonist, at
will, until she found a vulnerable point of attack.[44]
Perhaps the earliest reference to the trial by battle, among the
adjudicated English cases, is that of Wulfstan vs. Walter, of which Lea
reports that the witnesses who saw the trial stood ready to prove their
assertions regarding it, by “oath and battle.”[45]
The mandate of the Conqueror’s law, that the mutilated trunk, of the
defendant, convicted of treason, by combat, should remain as an evidence
of his crime, in order to deter others from this hated offense, was
exemplified, in the year 1096, in the case of William of Eu,[46] who,
after trial by combat, had his eyes torn out and thus bereft of his
sight, was sadly left to wander alone and despised through the world, a
living example of the vengeance of the Lord, for the offense that he had
been convicted of, by this hap-hazard method.
The battle between Henry, Earl of Essex and Robert de Montford, in the
year 1163, on an island in the Thames, near the Abbey, is well attested
by the history of that period. The charge of treason was preferred in
Parliament and the combat was adjudged, because of the alleged cowardice
of the Earl of Essex, during the Welsh war of 1157, in precipitating
a panic, during a decisive engagement in a narrow pass, by throwing
down his banner and giving the alarm that the king had been slain. De
Montford was victorious in the battle which followed and though Essex
made a fierce attack upon him, his blows were warded off and the Earl was
defeated and left for dead upon the field of battle. His body was given
to the Monks of Reading, for burial and he was revived and allowed to
become a Monk himself.[47]
“Hobbe-the-Werwede,” an approver, much spoken of in the old books
discussing trial by battle, in the fourth year of King Henry III. defeated
“Walter-in-the-Grove,” but Hobbe soon afterwards faced another opponent
and like many of our modern pugilists, went down to defeat, in his last
battle.[48]
On October 4’, 1350, Sir John de Visconti fought Sir Thomas de la Marche,
before King Edward III., within the bounds of the royal palace, at
Westminster. Sir John had charged Sir Thomas with taking bribes from the
infidel Turks and betraying the Christian army. The combatants were clad
in armour, but their helmets were guarded, at the visor, with small bars
of steel. Sir Thomas had taken the precaution to wear steel knuckles,
with which he soon broke the bars of steel covering the visor of Sir
John’s helmet and thus having the advantage, he punished him so severely,
by repeated blows in the face, that Sir John was compelled to yield.
Because of the compliment paid to the English King, in fighting this duel
in his presence, when Sir Thomas returned to France, he was tried by his
brother, the King, upon the charge of treason, and beheaded.[49]
The celebrated trial between the Dukes of Hereford and Norfolk, made
immortal by Shakespeare, in his Richard II., occurred at Coventry, on
September 16’, 1398. Hereford appealed the Duke of Norfolk of high
treason, in Parliament, in the use of words tending to the king’s
dishonor. Armour and coats of mail had been procured from Germany and
Milan, for the warriors. Hereford, who was the people’s favorite, came to
the lists mounted on a white horse, barbed with blue and green velvet.
Norfolk’s horse was draped with crimson velvet. Ten thousand armed
knights were in attendance, to prevent an affray and a large concourse
of the populace attended, to cheer their respective favorites. When the
combatants faced each other, the King, fearful, no doubt, that Hereford
would prevail, banished both the combatants. Norfolk soon afterwards
died, in Venice, but Hereford returned the following year to wrest the
crown from the weak king and proclaim himself King Henry IV.[50]
A lawyer entered the lists, in the year 1431, when John Upton, a notary,
accused John Downe of treason, in attempting to accomplish the death of
the king. The duel was fought in the presence of the king, on the 24’
of January and the writ, providing for the barriers and the making of
the lists; the levelling and sanding of the ground and the removal of
the stones, is fully set forth in Coke, on Littleton.[51] There was a
fierce fight, but the king pardoned both contestants, before the final
termination of the trial.[52]
The battle between the armourer’s servant, John Davy and his master,
William Catur, described by Shakespeare, in the second part of Henry
VI., was actually fought, on January 31’, 1447. The armourer’s body was
stripped of its armour and left upon the field of battle and the penalty
of treason was inflicted, and the trunk was mutilated and the head set up
on the London Bridge.[53]
The case of Thomas Whithorn, in the year 1455, reported by William
Gregory, Mayor of London, is not without interest. Whithorn was a
convicted thief and in accordance with the custom of the period, to save
his own life, he made a number of appeals against reputable citizens,
some of whom, because of his physical prowess, were unable to stand up
against him and were hanged, after unsuccessful trials by battle, with
him. He finally charged crime against one James Fisher, who, to save his
life, concluded to fight the thief. Both contestants were clad in white
sheep’s leather, over their legs, head, face, hands and bodies and they
fought with green ash staves, three feet long, with an iron ram’s horn
on the end. Fisher broke his weapon early in the fight and the constable
then took the approver’s away too and after that they fought “teeth and
nail.” Fisher finally got the thief’s nose between his teeth and his
thumbs in his eyes and he so tortured him that he cried “craven” and was
hanged, “for he was fals unto God and unto hym.”[54]
One of the last battles judicially fought upon English soil was that
between Sir James Parker and Sir Hugh Vaughan, before Henry VII., in
1492. The battle was the result of a quarrel about certain arms given by
the King to Vaughan. The fight occurred at Richmond and resulted in the
victory of Vaughan over Parker. The former’s spear penetrated the helmet
of Sir James and cleaved his tongue from his mouth and he died in a short
time from the wound inflicted.[55]
The last trial by battle that was waged in the court of common pleas at
Westminster,[56] occurred in the thirteenth year of Queen Elizabeth, A.
D. 1571. This was the celebrated case of Lowe vs. Paramour, reported by
Sir James Dyer[57] and also by Sir Henry Spelman,[58] who was himself a
witness of the trial. The battle occurred in Tothill-fields, Westminster,
“_non sine magna juris consultorum perturbatione_,” reports Sir Henry
Spelman.[59]
In the last English case wherein the right of trial by battle was
recognized, two citizens of the laboring class elected to decide their
cause by the wager of battle, in 1818. The case was that of Ashford vs.
Thornton.[60] The facts giving rise to the appeal by Abraham Thornton,
in 1817, are briefly told. Mary Ashford, of Warwickshire, was drowned,
under circumstances directing suspicion of foul play, against Thornton.
He was arrested for her murder and tried and acquitted by a jury,
but public sentiment was so aroused against him that the dead girl’s
brother, instituted an appeal for murder against Thornton, and while
this proceeding, after a jury trial, was quite unusual, the court held
that the proceeding was proper. Thornton demanded the right of trial by
battle, and the court held that he was entitled to such a trial, but
before the trial, in April, 1818, the appeal was withdrawn and Thornton
was discharged. Upon the legality of the proceeding of trial by battle,
however, the case proceeded to judgment, before the Court of King’s Bench
and Lord Ellenborough, for the court, decided that:
“The general law of the land is in favor of the wager of battle
and it is our duty to pronounce the law as it is and not as we
may wish it to be; whatever prejudice, therefore, may justly
exist against this mode of trial, still, as it is the law of
the land, the court must pronounce judgment for it.”
That this judgment was right, few, if any, lawyers would question, as the
repeal of existing laws is a legislative, not a judicial function; it
is the province of the courts to expound and apply, not to repeal laws
regularly enacted and recognized by the legislative branch of government
and although an absurd law may remain unenforced, because over-looked,
it is none the less a law, although not enforced, until repealed by the
proper department.
It was the judgment of the court, in the above case, however, that
brought about the repeal of the right of trial by battle, in England, by
the 59’ George III., c. 46.[61] By this statute it was enacted that:
“Appeals of murder, treason, felony and other offenses, and the
manner of proceeding therein, have been found to be oppressive;
and the _trial by battle_, in any suit, is a mode of trial
unfit to be used; and it is expedient that the same should be
wholly abolished.”
Accordingly, the act proceeded to abolish all appeals, in criminal cases
and,
“In any writ of right now depending, or hereafter to be
brought, the tenant shall not be received to wage battle, nor
shall issue be joined, or trial be had by battle in any writ of
right.”
Trial by battle was abolished in France, in 1260, by the good Saint
Louis, for the reason that it often happened that in the contests between
a rich man and a poor man, the former hired all the champions, and left
the latter without help.[62] The right to a trial by battle was last
recognized, in Scotland, near the close of the sixteenth century,[63] so
it survived in England, after it had long ceased to exist, as a mode of
judicial proceeding, in the other European countries.
Trial by battle has ever been an interesting theme in English literature.
And it is little wonder that this sturdy struggle for justice, according
to the light then obtaining, should be selected as the climax of the
vivid plots, by the masters of poesy and fiction, depicting the chivalry
of the age “when knighthood was in flower.”
If human interest were lacking in this antique procedure of the past
as we read of it in the unadorned details of the trials of the period,
certainly no one can fail to entertain the deepest concern for the fate
of the principals we meet with in this struggle for justice, as portrayed
by the poets and novelists of English literature. And instead of being
overdrawn, such representations are often but true portrayals of many of
the concrete cases that have come down to us, of the trials by battle, of
the past centuries.
The song of Roland, chanted at the battle of Hastings, in the eleventh
century, was really attuned to the theme of wager by battle, and from
the appeal, to the conclusion of the duel, between Pinabel and Thierry,
before Charles the Great, resulting in the punishment of the treason of
Ganelon, for the fall of Roland, the legal procedure of wager by battle
of chivalry is truthfully presented, even as the law writers of the
period would reproduce the history of such a trial.
Chaucer, in his pure and antique style, uses the trial by battle as the
expression of the chivalry and knighthood shown by Palamon and Arcite,
in their battle with their hundred chosen warriors, before Theseus, for
the love of the beautiful Emelye, and accurately portrays the different
points of law, governing the trial by battle, in his description of this
combat, from the assembling of the knights,
“Armed for lystes, up at alle rightes,
All redy to derrayne hire by bataylle,”
to the final conclusion of the trial, by the conquering of Palamon and
his knights.[64]
That the immortal Shakespeare was familiar with the exact details of the
procedure in trials by battle, is apparent from a perusal of the various
plays where he introduces this method of trial.[65]
In King Richard II., Thomas Mowbray and Bolingbroke, as “accuser and
accused,” are introduced, in all of their habiliments of war, into the
presence of the king, “face to face, and frowning, brow to brow.”[66]
In the same play, a Lord offers the gage to the Duke of Aumerle, in the
following challenge:
“_Lord._ From sun to sun, there is my honor’s pawn;
Engage it to the trial, if thou dar’st.”[67]
The Duke of Surrey, is likewise made to offer battle, in Richard II., to
Lord Fitzwater, in the following words:
“_Surrey._ In proof whereof, there is my honor’s pawn,
Engage it to the trial, if thou dar’st.”[68]
Vernon and Bassett implore the right of trial by battle, in 1’ Henry
VI.,[69] and the details of the trial by battle between the master,
Horner, and his apprentice, Peter, are set forth, with precision, in II
Henry VI., much as the details are given in the case from which this scene
is actually taken by the Poet.[70]
Edgar and his bastard brother, Edmund, are made to try their cause by
the wage of battle, in King Lear, and the rule of Knighthood, then
obtaining, is adverted to, giving the challenged one the right to decline
the combat, if the right were not equal and the wronged Edgar truthfully
asserts “Yet am I noble as the adversary, I came to cope withal.”[71]
Sir Walter Scott has added the zest of human interest, commonly felt for
the innocent, wrongfully accused, to the uncertain fate of the gentle
and lovely Rebecca, falsely accused of sorcery and witchcraft, by the
valiant and fearless, but selfish, amorous and vacillating Brian de
Bois-Guilbert, in Ivanhoe, and the trial by battle is utilized as the
instrument of justice whereby the innocence of this gentle Jewess is
established.
True to the faith of her fathers, and charitable, out of the goodness
of her heart, Rebecca ministers to the wants of the peasant and then,
because she turns a deaf ear to the importunities of the faithless
Templar, she is arraigned and tried for sorcery and the practice of
witchcraft, and would have been left without a champion, but for the
chivalrous conduct of Wilfred of Ivanhoe, who, though sick and maimed,
placed his implicit faith in the righteousness of his cause and the
assistance of Divine aid, and the wicked de Bois-Guilbert is stricken by
a power from on high, because he fought upon the side of an unrighteous
cause.
From the time that Rebecca offers the gage of battle, until the close of
this interesting trial, by her tardy champion, who hazarded his life in
her defense, against such fearful odds, in the tilt-yard of Temple stowe,
we can but see that the author of this humanly interesting story had
accurately studied the details of these trials by battle, as given in the
older books.
After the evidence of the witnesses to her sorcery, had been taken, the
accused demanded her right of trial by battle, through the service of a
champion, in “respect of lawful essoine of her body.” The author uses
the exact words, given by Glanville, whereby she invokes the preliminary
delay to prepare for trial. The herald opened the court and made
announcement of the pending issues, in the usual manner; the court was
regularly adjourned to a day certain for the trial. On the appointed day,
the details of the trial are presented, just as such trials obtained in
the courts of chivalry and honour of the period depicted. The accused,
in the presence of the court, was interrogated, from her black chair,
placed near the funeral pile, as to her readiness for the combat. She
begged the indulgence, which the law granted to her, of a short delay,
after invoking the aid of Divine wisdom, for her deliverance. Her
champion appears in true knightly fashion at the last moment and after
gaining the recognition of the court, and permission to do battle for
his fair principal, he throws the customary words of defiance into the
very teeth of the false Bois-Guilbert and the battle proceeds, until
the death of Bois-Guilbert, pronounced by the Court, in accordance with
the superstition of the times, as a consummation devoutly to be wished,
because it was, in fact, “the judgment of God.”
In “The Fair Maid of Perth,” Scott also describes the trial by battle as
used to decide the destinies of the Clan Quhele and the Clan Chattan,
assisted by the volunteer Henry Wynd, upon the field of North Inch,
whereat the whole tribe of the Clan Quhele was annihilated in the combat
with the race of the “Cat-a-Mountain.”[72]
Thackeray had also studied the procedure of trial by battle, for he
introduces it into his plot in his realistic story of “Henry Esmond”
and Crockett, in his “Black Douglas,” makes the Earl William and James
Douglas, of Avondale, enter into a legal trial by battle, just as the law
of Scotland in the fifteenth century governed such trials.
But it is not the purpose of this chapter to treat extensively of trials
by battle, as presented in the literature of England, but only to trace
the rise, growth and decay of this mediaeval institution, as evidenced
by the law writers of the past and illustrated by the works of poetry
and fiction, portraying this ancient mode of trial, which was superceded
by the fairer method of jury trial and with the other barbarous customs
of the dark, misty past, has faded away, with the generations that have
crept to rest, before the dawn of our modern jurisprudence.
FOOTNOTES:
[1] Herbert’s Antiquities, pp. 110, 130; Coke, Lyttleton, sec. 294.
[2] Neilson says: “Trial by combat came into existence—no tradition knows
when.” Neilson’s “Trial by Combat,” p. 1.
[3] 1 Samuel, XVII., 8, 9.
[4] The Mirror (C. 3, Par. 23) states that the trial by battle was
allowable upon the warranty of the combat between the Shepard King of the
Israelites and the Giant of the Philistines, but Pope Nicholas I. quite
seriously decides this precedent to be inconclusive. (Decret. Par. 2,
Caus. 2, qu. 5, c. 22.)
The belief that the Deity would interfere on the side of the right, in
these combats, originated with the institution itself, for we are told,
that when King Gundobald, in the year 501, decreed the trial by battle as
an antidote to perjury, he replied to the remonstrances of the churchmen
by the argument that “The event both of national wars and private combat
is directed by the judgment of God and Providence awards the victory to
the juster cause.” (II. Gibbon, ch. 38; Esprit des Lois, book 28, ch. 17;
Neilson’s Trial by Combat, p. 6.)
Neilson rejects the suggestion that trial by battle was divinely
instituted when David, with his Sling, slew the mighty man of war of
the Philistines, as did Pope Nicholas First, in the year 867. Neilson’s
“Trial by Combat,” p. 2.
[5] Velleius Paterculus, ii, ch. 117; Tacitus, Germania, ch. 10; Neilson,
“Trial by Combat,” p. 4.
[6] Neilson, “Trial by Combat,” p. 10.
[7] Selden, on Duels, ch. 5; Herbert’s “Antiquities of Inns of Court,”
pp. 109, 115; Bl Com.
[8] Stiernh. de jure Sueon, I. 1. c. 7.
[9] Herbert’s “Antiquities of Inns of Court,” p. 109, 115.
[10] Henrion de Pansey, _Auth. Judic._ Introd. E. 3.
Some historians trace the origin of trial by battle to the fact that
perjury became so prevalent that this procedure was resorted to to avoid
the evil effects of this crime. (I. Pollock and Maitland’s History
English Law., p. 50.)
It is rather to be accounted for by the fact that it originated in the
customs of a warlike race, where force and superstition were a part of
the habits and customs of the people. (Lea. “Superstition and Force,” 4
ed. p. 409.)
The Burgundian and Lombard rulers, in accordance with the natural
fighting tendency of their subjects, were brought to recognize the trial
by battle, because it combined the physical joy of battle with the higher
ideals of an approved formal procedure, whereby the virtue known as
justice was supposed to be attained. In other words, the trial by battle
was the natural expression of the inclinations of both ruler and subject
of the period when it was established and crept into the established
procedure of the period, just as naturally as did the superstitions of
the past centuries,—the belief in witchcraft and ghosts,—find expression
along with the gems of literature of the same and a later period. The
institution was a product of the barbarism of the time. And trial by
battle was recognized as a form of ordeal which obtained among the
warlike German tribes from very ancient times, but it was not practiced
by the ancestors of the Anglo-Saxons. (I. Pollock and Maitland’s History
English Law, p. 51.)
[11] Neilson, in speaking of the effect of chivalry, upon the trial by
battle, observed: “It reached its legal prime in the early feudal ages
and enjoyed a new era of activity under the auspices of later chivalry.”
Neilson’s “Trial by Combat.” p. 1.
[12] This is _de hors_ the subject at hand, but demonstrates that
chivalry and heroism are still abroad in the land and that these virtues
are confined to no particular class.
[13] 3 Cooley’s Bl. Com. 104; Coke, Litt. 261.
[14] _Ante idem._
[15] Comyns Dig. 252.
Neilson states that private duels succeeded trial by battle, in the
16’ and 17’ centuries, but of course trial by battle was not abolished
in England until the year 1819, and duelling had continued for several
centuries then. (Neilson’s “Trial by Combat,” pp. 18, 328.)
[16] Coke, Litt. 261.
[17] 2 Hawk. P. C. c. 45.
[18] Neilson’s “Trial by Combat,” p. 40.
[19] Coke, III. Inst. 157; I. Russell, Crimes, 495.
That Trial by Battle was introduced into England by the Normans, is now
quite generally conceded. “One ordeal the Normans recognized which had
no place in English law, namely, the ordeal of battle.” I. Pollock and
Maitland’s History Eng. Law, p. 74.
We find that William of Normandy, with his studious desire to preserve
English institutions and protect Englishmen, in defining the procedure
which should obtain if a Frenchman accused an Englishman, or _vice
versa_, provided that the Englishman whom a Frenchman accused had the
choice between battle and ordeal, but if the Englishman accused the
Frenchman, the former had the right to compel the latter to join battle,
or otherwise the Frenchman could swear away the charge, with oath
helpers, according to Norman law. The Englishman was thus recognized as
the Norman’s peer, but as was not accustomed to the ordeal by battle, he
was given the choice of this procedure, if he preferred to avail himself
of it, and the Norman, by a strict rule of justice, was required to purge
himself, even though the Englishman would not fight. (Laws of William, c.
6; Forschungen, 328; I. Pollock and Maitland’s History English Law, pp.
89, 90.)
For reference to the trial by battle, during the reigns of William I. to
Henry II., see, I. Reeve’s History English Law, pp. 329, 331, and note
citing the Mirror.
[20] Neilson’s “Trial by Combat,” pp. 188, 189.
[21] II. Pollock and Maitland’s History English Law, p. 632, Bracton,
fol. 347.
[22] Leg. Hen. 59, sec. 16.
[23] I. St. Westm. c. 41.
[24] Bracton, fol. 152, 153; Select Pl. Crown, pl. 109, 140, 190, 199.
[25] Neilson’s “Trial by Combat,” pp. 56, 57.
In the class of civil or criminal cases where the right of trial by
battle obtained, when the plaintiff offered battle, the defendant was
bound to accept the offer. Having offered to defend the charge preferred
against him, in legal contemplation, he volunteered to defend it with
his own body, or with the body of his freeman, “when and where the court
shall consider that defend he ought.” He then tendered his gage and
pledges to the court that on the given day set, he would perform the task
assigned to him. (Year Book, 21, 22, II. Edw. I., pp. 9, 167; II. Pollock
and Maitland’s History English Law, pp. 610, 611.)
The champion, originally, was a witness and it was as such that he
intervened. In a plea for land, he testified to having seen the seisin
and that either he or his father saw the claimant in the possession of
the land. (Neilson’s “Trial by Combat,” p. 48.)
While hired champions were forbidden by the law, it became a very common
practice and Neilson gives many such contracts in his interesting and
thorough book, on “Trial by Combat,” pp. 48, 54.
Maynard’s Year Books, contain the history of many trials occurring during
the reigns of Edward III. and Henry VI. The report of one such trial, in
the year 1329, describes the champions as appearing with shaven heads,
ungirt coats, bare legged and bare armed, tendering a glove, with a penny
in each finger, to the judge, who afterwards offered the pennies on the
altar of the nearest church, in order that “God might give the victory to
him who was in the right.” (Maynard’s Year Books, I. Henry VI., pp. 6, 7;
_idem._ 21 Henry VI., pp. 19, 20.)
As the pugilists of the present day, have managers, who conduct the
combats between the champions for the wager of the ringside, so men of
the thirteenth century kept pugilists for hire, whose services were quite
generally used in these trials. One of these champions was Richard of
Newnham, whose master, or manager, was William of Cookham (Note Book, pl.
185, 400, 551), whose expert services were much in demand about the year
1220.
[26] Neilson’s “Trial by Combat,” p. 40; Maddox, 71, 66, 311, 349, 379.
[27] III. Reeve’s History English Law, p. 329.
[28] 22 Edward IV., 19; IV. Reeve’s History English Law, p. 58.
[29] 37 Henry VI. 20; IV. Reeve’s History English Law, p. 58.
[30] II. Pollock and Maitland’s History English Law, p. 214.
[31] Herbert’s “Antiquities of Inns of Court,” p. 130.
[32] Neilson’s “Trial by Combat,” p. 46.
Clergymen were exempted from the trial by battle and by 41 Edward III.,
an appellant, on entering the field of battle could avoid the fight, by
praying his clergy. (Herbert’s “Antiquities of the Inns of Court,” 130.)
By the Charter of London, the following citizens were also exempted from
trial by battle, _viz._, _sexagenarii_, or men of three score years;
_coecus_, or those blind by accident after issue joined. (_Ante idem._)
The exemption granted by Henry I., by the Charter of London, was followed
by many other similar exemptions. Newcastle-on-Tyne, Norwich, Oxford and
Winchester, soon followed and almost every borough strove to procure like
exemptions. (Stubbs’ Charters, Thompson’s English Mun. History.)
Mayhem was a good ground for exemption from trial by combat. Crown Pleas,
No. 4, 9; Bracton, ii, 458, 468; Glanville, XIV., ch. I; Neilson’s “Trial
by Combat,” 46.
[33] Beames Glanville, pp. 36, 41; Herbert’s “Antiquities of the Inns of
Court,” pp. 110, 115.
[34] An _essoin_ is defined by Sir Edward Coke as an excuse, the term
being taken from the French verb, _essonier_, or _exonier_. The term was
introduced into England by the Normans. Note to Beame’s Glanville, p. 6.
[35] Beames, Glanville, p. 41; Herbert’s “Antiquities of Inns of Court,”
115.
[36] Selden, impr. Duello, Lond. 1610; Herbert’s “Antiquities of the Inns
of Court,” pp. 115, 117; Select Pleas of Crown, Pl. 87; II. Pollock and
Maitland’s History English Law, p. 634.
During the twelfth century, in controversies between the Lord paramount
and the tenant as to the right to the possession of real estate, the duel
or battle was a method of trial generally in vogue. In the reign of Henry
II., while the tenant, in a writ of right, had his election to defend his
title by duel, “as a royal benefit conferred on the nation, by the prince
in his clemency, by the advice of his nobles, as an expedient whereby
the lives and interests of his subjects might be preserved, and their
property and rights enjoyed _without being any longer obliged to submit
to the doubtful chance of the duel_,” we find the institution of the
_assize_ guaranteed to the subjects by the king, and this constitution
is perhaps the first guaranty of the trial by jury in the English law.
(Glanv. lib. 2, c. 4, 5, 6; I. Reeve’s History Eng. Law, pp. 393, 395.)
The proceeding for the recovery of land during the reign of Henry II. and
preceding reigns, is not without interest. The claim of the demandant,
or claimant, was based only upon evidence _de visu et auditu_, or by the
proof furnished by his freeman, whose evidence was either as to what he
had actually seen and knew, or upon what his father had told him, and had
enjoined upon him, on his death-bed, by the faith that a son owed to a
father, which he was to assert, if he ever heard of any plea being urged
as to the land in controversy. (Glanv. lib. 2, c. 3.)
If the tenant elected to try the issue by the duel, or battle, he could
not afterwards resort to the assize, but must meet the issue _de verbo
in verbam_, as the demandant, or claimant had asserted his title. The
demandant could not be his own champion, but the tenant could defend
himself, either in person or by a champion, and after the customary
essoins, the battle proceeded. If the champion of the demandant was
conquered, the demandant lost his suit and the champion was never again
a competent witness in a duel. If the champion of the tenant, or the
tenant himself was conquered, he lost the land with all the fruits and
produce on it, and he was never afterwards to be heard in a court of
justice concerning the same. In other words, the final effect of a trial
by battle was as conclusive as the judgment of a court of competent
jurisdiction and furnished the basis for a good plea of _res adjudicata_
in all subsequent controversies over the same land in the future, between
the same parties. (Glanv. lib. 2. c. 4, 5; I. Reeve’s History Eng. Law,
p. 394.)
Neilson complains because neither Glanville, Bracton, Britton, nor
Fleta, describe the procedure governing the actual fighting of the duel
in an English plea for land under a “writ of right.” (Neilson’s “Trial
by Combat,” p. 86.) The above description of such a combat, is deemed
accurate, from sources consulted and for the authorities consulted, the
reader is referred to Herbert’s “Antiquities of the Inns of Courts,” pp.
115, 117.
[37] Selden, Duello, impr. Lond. 1610; Mich. 6 R. I. ret. 3.
[38] This is a quotation from an old manuscript book, belonging to Sir
Edw. Windham, knight, Marshal of the Camp, to King Henry VIII. See,
Herbert’s “Antiquities of the Inns of Court,” pp. 119, 131.
[39] Coke, Litt. 287; 4 Shars. Bl. Comm. 312, 318, and notes.
[40] Neilson’s “Trial by Combat,” p. 3.
[41] Livy, book I., ch. 24, book 28, ch. 21.
[42] Geoffrey of Monmouth, lx, ch. II; Neilson’s “Trial by Combat,” p. 25.
[43] Neilson’s “Trial by Combat,” p. 8.
[44] If this procedure obtained today, it would have a wholesome effect,
in some of the disgraceful controversies in our divorce courts.
[45] Lea, “Superstition and Force,” (4 ed.) 120.
Thayer states that the earliest reference to the trial by battle in
English adjudicated cases, is that of Bishop Wulfstan vs. Abbot Walter,
in the year 1077. (Essays in Anglo-Saxon Law, 379; Bigelow’s Placita
Anglo-Normanica, 19; Brunner, Schw. 197, 400-1; Thayer’s Older Modes of
Trial, V. Harvard Law Review, 66; II. Essays in Anglo-American Legal
History, 397.)
The history of cases of trial by battle that were preserved, in England,
prior to Glanville’s time, are to be found in Bigelow’s Placita
Anglo-Normanica.
[46] I. Ancient Laws England, 494; Neilson’s “Trial by Combat,” p. 59.
[47] Carlyle’s “Past and Present,” book II., ch. 14; Jocelin of
Brakelond’s Chronicle, p. 52; Neilson’s “Trial by Combat,” pp. 61, 62.
[48] Neilson’s “Trial by Combat,” pp. 43, 44.
[49] Galfridus le Baker, 208, 210; Walsingham, i, 275; Myrick, ii, 32;
Neilson’s “Trial by Combat,” pp. 168, 170.
[50] Hall, 4; Adam of Usk, 131; Trekolowe, 225; Neilson’s “Trial by
Combat,” pp. 190, 193.
[51] IV. Coke, Littleton, ed. 1817, ch. 17.
[52] John Stowe’s Survey, iii, 239, 371; Neilson’s “Trial by Combat,” 199.
[53] Gregory, 187; Nichols’ “Illustrations of Manners,” (1797) p. 217;
John Stowe, 385; Neilson’s “Trial by Combat,” p. 201.
[54] Gregory, 199, 200; Neilson’s “Trial by Combat,” pp. 154, 157.
[55] John Stowe, 475; Neilson’s “Trial by Combat,” pp. 203, 204.
[56] Afterwards a battle occurred in the court of chivalry, in 1631.
(Rushw. Coll. vol. II., part 2, fol. 112; 19 Rym. 322.) And another in
the county palatine of Durham, in 1638. (Cro. Car. 512.)
[57] Dyer, 301.
[58] Spelman’s Gloss (_sub voc._ Campus, 1625), 102.
[59] _Ante idem._
[60] I. Barn. & Ald. 405.
[61] I. Barn. & Ald. 405; 3 Shars. Bl. Comm. 339; 4 _idem._ 347.
[62] Grandes Chroniques de France, M. Paulin, Paris, vol. IV., pp. 427,
430; Brunner, Schw. 297; “Older Modes of Trials,” by Thayer, V. Harvard
Law Rev., p. 67; II. Essays in Anglo-American Legal History, note, p. 398.
[63] Stephens’ History Criminal Law, in England; Neilson’s “Trial by
Combat,” p. 319.
The reader, interested in following the many illustrations of the
trial by combat, in individual instances occurring at various periods
during the centuries from 1100 to 1600, in Scotland, will find copious
references to such trials, in Neilson’s “Trial by Combat.”
[64] For full explanation of the different legal phases presented in this
poem, see, Neilson’s “Trial by Combat,” pp. 180, 188.
[65] See White’s “Law in Shakespeare,” for full discussion of this and
other scenes on “Trial by battle,” as used by Shakespeare.
[66] King Richard II., Act I., scenes I. and III.
[67] King Richard II., Act IV., Scene I.
The dramatic quarrel between Henry, earl of Hereford (afterward King
Henry IV.) and the Duke of Norfolk, presented by Shakespeare in his play,
Richard II., is described by a graphic writer in Herbert’s “Antiquities,”
pp. 145, 146.
[68] King Richard II., Act IV., Scene I.
[69] Act IV., Scene I.
[70] Act I., Scene III., and Act II., Scene III.
[71] King Lear, Act V., Scene III.
For exposition of the above portions of Shakespeare’s plays, dealing with
“Trial by Battle,” see, White’s “Law in Shakespeare,” Sec. 191, pp. 229,
232.
[72] The combat between the Clan Chattan and Clan Kay, on the Inch of
Perth, made memorable by this great novelist, actually occurred in the
year 1396. (Neilson’s “Trial by Combat,” 239; 244; 250; Bower, xv, ch.
3.)
CHAPTER V.
TRIAL BY ORDEAL.
Trial by ordeal was the method used to ascertain the guilt or innocence
of a person accused of crime, according to his ability to perform certain
acts, or accomplish results which would, in the ordinary course of
events, be hurtful to him.[1]
If the suspected criminal was injured or killed in the performance of
the act required of him, he was adjudged guilty, but if he performed the
part assigned to him without injury, he was declared innocent. The tests
that the suspected person was subjected to were called ordeals,[2] or
judgments of God.
The custom of referring disputed questions such as the guilt or innocence
of a person accused of crime, to the judgment of God, to be determined
either by lot, or the success of certain dangerous experiments, has
existed, from the earliest times, among various widely separated nations
and peoples.[3]
We find that according to the “law of jealousies,” laid down in the
Mosaic code Fifteen hundred years before Christ, the guilt of a woman,
accused of infidelity, by her husband, was determined according to this
trial of ordeal, for it is recorded:
“And the spirit of jealousy come upon him, and he be jealous
of his wife, and she be defiled; or if the spirit of jealousy
come upon him and he be jealous of his wife, and she be not
defiled; then shall the man bring his wife unto the priest....
And the priest shall charge her by an oath, and say unto the
woman, If no man have lain with thee, and if thou hast not gone
aside to uncleanness; with another, instead of thy husband, be
thou free from this bitter water, that causeth the curse: ...
And he shall cause the woman to drink the bitter water that
causeth the curse; and the water that causeth the curse shall
enter into her, and become bitter....
And when he hath made her to drink the water, then it shall
come to pass that, if she be defiled, and have done trespass
against her husband, that the water that causeth the curse
shall enter into her and become bitter, and her belly shall
swell and her thigh shall rot; and the woman shall be a curse
among her people.
And if the woman be not defiled, but be clean, then shall she
be free, and shall conceive seed.”[4]
Compurgation of accused persons, by fire, existed among the ancient
Greeks,[5] and the Hindus practiced ordeal in nine different ways,—by
the balance, by fire, by water, by poison, by the _cosha_, or drinking
water, in which the images of the sun and other deities had been washed,
by chewing rice, by hot oil, by red hot iron, and by drawing two images
out of a jar, into which they had been thrown.[6]
The most generally used ordeals throughout ancient Europe were: Trial by
battle, in which the vanquished one was adjudged guilty; trial by the
ordeal of fire; trial by water; trial by the corsned; the trial of the
eucharist; the trial by the cross and the test by judgment of the bier.
In trial by battle, the accuser and accused fought in mortal combat to
determine the guilt or innocence of the suspected person.[7] In the trial
by fire, the accused walked bare-footed, over red hot plow-shares, or
coals of fire,[8] carried a red hot iron in his hand, or walked through
flames, clad in a suit of wax, spread over woolen cloth, known as the
“trial of the waxen shirt,” because if he was unhurt by the fire and the
wax was unmelted, he was considered innocent, but otherwise was adjudged
guilty.[9]
The trial by water was either by cold or boiling water. If the former,
which was the test usually applied to witches, the guilt was determined
by the ability of the accused to float or sink, when cast into the
water.[10] Where the ordeal by boiling water was used, the accused had to
take a stone out of boiling water, by inserting his hand into a caldron,
containing boiling water, as deep as his wrist, and if the triple ordeal
was used, the boiling water was deepened so that he had to insert his arm
as far as the elbow to get the stone.[11]
In the _offa execrata_, or corsned ordeal, a priest put the corsned or
hallowed cheese and bread, in the mouth of the accused, with various
chants and imprecations and if he swallowed it, he was freed from the
judgment, but if it stuck in his throat, he was held to be proven guilty
of the offense with which he was charged.[12]
The test of the eucharist was chiefly applied among the monks and clergy,
for it was believed that when they took the test, God would smite the
guilty, with sickness or death.[13]
In the ordeal of the cross, the accuser and accused were placed under
the cross, with their arms extended, and the one whose hands moved first
was adjudged to be the guilty one and the other the innocent. A trial by
lot, similar to this latter ordeal, occurred when the accused was placed
before certain relics with two dice before him, one of which was marked
with a cross. If the cross was selected, at hazard, he was acquitted, but
otherwise was adjudged guilty.[14]
And finally, the ordeal known as the judgment of the bier was used
to determine the guilt of the accused, under a charge of murder. The
deceased, supposed to have been murdered, was placed upon a bier, and the
accused was made to touch his body. If blood flowed, or foam appeared
in the mouth of the murdered person, or the body changed position, the
accused was adjudged guilty of the murder, but if none of these signs
appeared, he was acquitted.[15]
According to the Institute of Narada,[16] the ordeal was used four or
five centuries before Christ, in India, for we find that the balance,
fire, water, poison and the sacred libation, were considered the five
divine tests, for determining the guilt or innocence of suspected persons.
From the formulas given in the Institute of Narada, the most solemn
ceremonies accompanied the application of the tests used in the trials by
ordeal, in India, in ancient days. In describing the different tests, it
is said:
“Having adjured the balance by imprecation, the judge should
cause the accused to be placed in the balance again. ‘O
balance, thou only knowest what mortals do not comprehend.
This man, being arraigned in a cause, is weighed upon thee.
Therefore mayst thou deliver him lawfully from his perplexity.’
... If the individual increased in weight, he was adjudged
guilty; if he was found to be lighter or equal in weight, his
innocence was established.
In the ordeal of fire, the judge thus addressed the fire:
‘Thou, O fire, dwellest in the interior of all creatures,
like a witness. Thou only knowest what mortals do not
comprehend. This man is arraigned in a cause and desires
acquittal. Therefore, mayst thou deliver him lawfully from his
perplexity.’ ... Seven circles of fire, with a diameter of a
foot each and thirty-two inches distant from each other were
marked on the ground, and the man, having fasted and cleansed
himself, has seven _acvattha_ leaves fastened on his hands and
he takes a smooth ball of red hot iron in his hands and walks
slowly through the seven circles of fire and deposits the ball
on the ground. If he is burnt, he is adjudged guilty, but if he
is unburnt, he is declared innocent.
In the ordeal of water, the judge adjures the water, as in the
preceding tests, by the balance and by fire, and the accused
wades into water to his waist, while another shoots an arrow.
The accused dives into the water and if he remains under while
a swift runner returns the arrow, he is innocent, but otherwise
is adjudged guilty.
In the poison ordeal, after the selection of the particular
poison the judge thus adjures the poison: ‘Thou, O poison,
art the son of Brahma,[17] thou are persistent in truth and
justice; relieve this man from sin and by thy virture become
an ambrosia to him. On account of thy venomous and dangerous
nature, thou art the destruction of all living creatures; thou
art destined to show the difference between right and wrong,
like a witness.’ The accused person eats the poison and if it
easily digested, without violent symptoms, the king shall
recognize him as innocent, and dismiss him, after having
honored him, with presents.
In the ordeal of sacred libation, the judge should give the
accused water in which an image of that deity to whom he is
devoted, has been bathed, thrice calling out the charge, with
composure. One to whom any misfortune or calamity happens,
within a week, or a fortnight, is proved to be guilty.”[18]
Charlemagne apparently did not place much dependence in the _judicium
Dei_, by means of the ordeal, at the beginning of his reign, for in 779,
by his edict the trial by ordeal was to be used in the more trifling
offenses, while cases of greater magnitude were to be tried by the civil
law of the realm.[19]
Later on in his reign, however, by his edicts of the year 806 and 809
this monarch seems to have come to regard the ordeal with much greater
favor, for he frequently referred to this method of trial; when dividing
up his empire between his sons he directed that all disputes should be
settled by ordeal, and endeavored to force a greater regard for the
judgments in trials by ordeal, on the part of the subjects, whom, it
seems, had come to entertain his own early distrust in this species of
trials.[20]
It seems that Charlemagne completely believed in the efficacy of the
ordeal, by the year 794, for we are told that in this year, a certain
Bishop Peter, who was condemned by the Synod of Frankfort to clear
himself of the suspicion of complicity in a conspiracy of treason
against Charlemagne, being unable to obtain conjurators, one of his
vassals offered to attempt the test of the ordeal, as his proxy, and
on his success, the Bishop was adjudged innocent of the charge and was
reinstated.[21]
Soon after the death of Charlemagne, in the year 816,
Louis-le-Debonnaire, at the Council of Aix-la-Chapelle, prohibited the
continuance of the ordeal of the cross,[22] because it had a tendency to
bring the Christian symbol into contempt and his son, the Emperor Lothair
also issued a similar edict against the use of this ordeal, after he
assumed the reigns of government.[23]
Among the early Saxons, the ordeals by fire and water were practiced,
for we find that the _ordale_ signified _judicium aequum, justum,
indifferens_, “an upright, just and indifferent judgment.”[24]
Tacitus tells us that the ancestors of our Saxon forefathers, during
pagan times, were addicted to divination and risked certain results upon
the flying of birds, the neighing of horse and trial by combat.[25] And
trial by ordeal was used by them in both civil and criminal cases, to
determine the issues later solved by the testimony of witnesses, or the
oaths of compurgators.[26]
The ordeal of hot water appears in the laws of Ine,[27] who began his
reign in the year 710, and the ordeals by fire and water had become
so common by the time of King Athelstan, that we find the procedure
governing such trial, fully covered by his Constitutions,[28] by which
they were considered in the light of religious ceremonies:
“Concerning ordeal, we command, in the name of God, and by the
precept of our archbishops and bishops, that no man enter into
the church after the fire is brought in, wherewith the judgment
is to be made hot, except the priest, and he who is to undergo
the trial; and let there be measured nine feet from the stake
unto the mark, according to the measure of the foot, who is to
come thus to judgment.
And if the trial be by water, let it be made hot, till it boil,
in a vessel of iron, brass, lead, or clay; and if it be single,
let his hand be put therein after a stone or stock up to his
wrist; but if the accusation be threefold, then to his elbow;
and when the judgment shall be prepared, let two men be brought
in on either side, to make experiment, that it be as hot as is
afore expressed.
Let as many also come in on each side the judgment, along the
church; and let them be fasting and abstain from their wives
that night; and the priest shall sprinkle holy water on them,
and give them the text of the holy gospel to kiss, as also the
sign of the cross; and no man shall make the fire any longer
than whilst the benediction beginneth, but shall cast the iron
upon the coals until the last collect; afterwards it shall be
put upon the _ceac_ (cauldron)[29] without any more words, then
that they pray earnestly to God that he will vouch safe to
manifest the truth therein; then shall the person accused drink
holy water and his hand wherewith he shall carry the judgment
shall be sprinkled therewith; and so let him go, the nine feet
measured being distinguished by three and three.
At the first mark next to the stake, he shall set his right
foot and at the second his left foot; and thence he shall
remove his right foot unto the third mark, where he shall
throw down the iron and hasten to the holy altar; which done,
his hand shall be sealed up, and the third day after viewed,
whether it be clean or unclean where it was so sealed. And
he who shall transgress these laws, let the ordeal judgment
or trial be done upon him, that he pay 120 s. for a fine or
mulct.”[30]
For three days before the trial, the accused was to attend the priest,
to be constant at mass, to make his offering and in the interim, to
sustain himself on nothing but bread, salt, water and onions. On the day
of the trial he was to take the sacrament and swear he was not guilty
of the crime imputed to him. The accuser and accused both came to the
place of trial, with not more than twelve persons each, to stay any
interposition or violence and the accuser then renewed his charge upon
oath and the accused made his purgation on oath also. If the ordeal was
by hot water, he put his wrist or arm into the boiling water, accordingly
whether it was the simple or triple test, and if the trial was by cold
water, his thumbs were tied to his toes and he was cast into the water.
If he escaped the boiling water unhurt, or sank in the cold water, he was
adjudged innocent, but if he was burned by the hot water, or swam in the
cold water, he was adjudged guilty, as charged by his accuser.[31]
These trials by water and fire were called _judicium Dei_, or, as the
Mirror of Justice puts it, miracles of God, but “Christianity suffered
not that they be by such wicked arts cleared, if one may otherwise avoid
it.”[32]
From this observation in the Mirror, it has been contended that the
Anglo-Saxons distinguished between open and manifest offenses and those
not so public as to be susceptible of proof and that trial by ordeal was
only used in the latter class of crimes.[33]
It is true that in Alfred’s time there were trials by jury, and it seems
that trial by ordeal may have been re-established, after trial by jury,
in doubtful cases, as a refuge or solution of an otherwise doughty
problem for the barbarian mind to solve.[34]
Pursuance to the terms of a certain league, made between Edward the Elder
and Guthrun, the Dane, ordeals were forbidden upon festivals or fasting
days[35] and the same provision was inserted in the constitution made by
the synod held at Eanham, under King Ethelred.[36]
The laws of Canute and Edward the Confessor also contained provisions
forbidding trials by ordeal upon festivals or fasting days, for we read
that the _judicium Dei_, upon these auspicious occasions, was to be
postponed, until the affairs of mortals could be better arranged for its
reception, by the following provision:[37]
“We forbid ordeals and oaths” (the name law trials at that
time were called) “on feast days and ember days, and from the
advent of our Lord till the eighth day after twelfth be past;
and from Septuagesima till fifteen nights after Easter. And the
sages have ordained that St. Edward’s day shall be festival all
England on the fifteenth cal. of April, and St. Dunstan’s, on
the fourteenth cal. of June; and that all Christians, as right
it is, should keep them hallowed and in peace.”
In the simple ordeal, of the Anglo-Saxons, the hot iron weighed one pound
and in the triple ordeal, it was to weigh three pounds. The triple ordeal
was used in the crimes of arson and murder, treason and forgery.[38]
In the laws of Edward the Elder, perhaps the earliest reference in
Anglo-Saxon laws, to the ordeal, it was provided that perjured persons,
or those once convicted should not thereafter be deemed oath-worthy, but
on their accusation, should be hurried to the ordeal,[39] and similar
provisions are to be found in the laws of Ethelred, Cnut and Henry I.[40]
Trial by ordeal at first carried with it the sanction of the priest, as
well as the civil power and the clergy continued to approve and interject
the spiritual portion of the proceeding, until the early portion of the
thirteenth century.[41] Under the law of William the Conqueror, the
conduct of the ordeal, as a known ecclesiastical procedure, was declared
to be the business of the bishop, but the civil and spiritual powers were
to co-operate harmoniously, in the trial by ordeal, the court of the
hundred making the original order by which a man was sent to the ordeal
of fire or water, but the bishop presided at the ceremony and regulated
the course of the proceeding, in accordance with the solemn religious
ceremony, whereby the element used was blessed and the Divine Wisdom of
Omnipotence was invoked to the conclusion of the whole proceeding.[42]
The Normans were attached to the procedure, elsewhere discussed, as the
_trial by battle_ and they did not relish a procedure which seemed to
them to be a mere superstitious formality, fit only for women and old or
maimed men. However, ever since the reign of Ina, the Saxons had been
accustomed to the ordeal and the laws of Ina and later monarchs continued
in effect, and the accused person was entitled to select the ordeal of
hot iron, or that of hot water and to undergo, under the supervision of
the priest or bishop, a trial, to determine his guilt or innocence of the
offense charged.[43]
In the year 1166, in the Assize of Clarendon, and again in the year 1176,
in the Assize of Northampton, Henry II. provided for a public mode of
accusation for the capital felonies and trial by ordeal was the method
of procedure fixed to determine the guilt or innocence of the person
charged.[44]
Prior to the thirteenth century perjury was so common and it was so
impossible to avoid the effects of a false oath, by the proceedings of
men, that the Laws of Henry provided that “No one is to be convicted of a
capital crime by testimony.”[45] Mere human testimony was not enough to
send a man to the gallows, but one accused of a capital offense was to be
entitled to one of the old-world sacred processes, wherein the _judicium
Dei_, was supposed to take the place of the false standards, too often
erected by ordinary mortals. The ordeal was then so far “the law of the
land” that one accused of a capital offense, who refused the ordeal,
could be executed, as an outlaw, because he had thus defied the law of
the realm. But one who had not been accorded this “law of the land,”
based upon the sacred and Divine belief in the infallibility of the test
of ordeal, could not legally be condemned, as trial by jury or by the
oaths of witnesses was not yet an accredited method of procedure in cases
of capital offense.[46]
Glanville tells us that in his time, about the year 1187, an accused
person, who was so far disabled by mayhem that he could not test his
guilt or innocence by the ordeal of battle, was entitled to the ordeal of
fire or water, to determine his guilt or innocence, this author of the
first law book observing:[47]
“In such case, the Accused is obliged to purge himself by the
Ordeal, that is, by the hot Iron, if he be a free Man—by water,
if he be a Rustic.”
This corresponds with the statement elsewhere made, that in the early
use of this trial, the hot iron ordeal, was confined to the nobility, or
patricians, while the water ordeal was generally used among the common
people, accused of minor offenses or other than the capital felonies.[48]
By the latter part of the twelfth century, the ordeal had become so
discredited, in the time of Henry II. that the law of that reign provided
that any one charged before the king’s justices with the crime of
murder, theft, robbery, or the receipt of such offenders, or of arson,
or forgery, by the oaths of twelve knights of the hundred, or of twelve
free and lawful men, in the absence of such knights, should submit to
the water ordeal, and if he failed in the experiment, he should lose
one foot; and this law afterwards amended, at Northampton in order to
make the punishment more severe and the felon also lost his right hand,
as well as one of his feet. He was also required to abjure the realm,
within forty days and even though he was acquitted by the water ordeal,
he was required to find pledges to answer for his good behavior, and if
he were later charged with murder, or other felony, he was then required
to abjure the realm within the forty days, with all his goods, save what
his lord might distrain to discharge his obligations due him.[49] This
law was to remain in effect, as long as the king pleased and the effect
of this law was that the accused, if convicted, lost a limb and suffered
banishment and even if acquitted, by ordeal, he was likewise banished,
for such was the doubt then entertained as to the justness of the trial
by ordeal.[50]
This doubt upon the justness of the trial by ordeal, was due, in large
measure to the fact that many such trials were fraudulently managed, by
the Bishops, to bring about the acquittal of the accused.
It is related that William Rufus, who had caused fifty Englishmen of good
family, to be tried by ordeal for the violation of some law of the realm,
after their acquittal by the ordeal of the hot iron, declared that he
would try them again by the judgment of his court and would not abide by
this pretended judgment of God, “which was made favorable or unfavorable,
at any man’s pleasure.”[51] And Henry II., likewise convinced of the
fraud accompanying such acquittals, by this means, also refused to give
final effect to such acquittals.[52]
Trial by ordeal continued in England until the judgments of councils,
in the reign of Henry III., but in the third year of the reign of this
monarch on January 27’, 1219, direction was given to the justices
itinerant for the northern counties of the kingdom not to try persons
charged with murder, arson, robbery, theft or other felonies, by the
ordeals of fire or water, but for the present, until further provision
could be made, to keep them in prison, _so as not to endanger their life
or limb_[53] and those charged with the inferior offenses were to be
compelled to abjure the realm.[54]
This order of council, during the reign of Henry III., had such a potent
influence toward abolishing the superstitious trial of ordeal, that it
went quite out of use by the time of Bracton, who makes no mention of it
in his book.[55]
Compurgation by witnesses was substituted, in England in the early part
of the thirteenth century, for the former mode of compurgation by ordeal
and the latter became an obsolete procedure in England, until revived
in the crime of witchcraft, by James I., where it was quite generally
used, to determine the guilt or innocence of persons accused of sorcery,
because of the absence of any other test to apply, to determine their
guilt or innocence.[56] This superstitious monarch maintained that trial
by ordeal was an infallible test in cases of witchcraft, because the pure
elements of fire and water would not receive those who had renounced
the sacred privileges of their baptism and by his authority and example
thousands of cases of cruelty and oppression resulted, in the use of
the ordeal, as applied to cases of sorcery, during the craze of that
delusion, in Europe,[57] but otherwise, the trial by ordeal passed into
history, along with the many other cruel institutions of a past age.
The ordeal was frequently used, in ancient Europe, to establish the
paternity of children or the chastity of women, the success or failure of
the test being generally accepted as the judgment of God.
In 887 Charles-le-Gros accused his wife, the Empress Richarda, of
adultery with Bishop Liutward, and she offered to prove her innocence by
the judicial combat, or the ordeal of the red-hot iron.[58]
St. Cunigundi, referred to as the “virgin-wife” of the Emperor St. Henry
II., is also reported to have eagerly appealed to the judgment of God, to
establish her innocence of the baseless charge of infidelity, preferred
against her by her jealous lord, and in vindication of her honor, to have
successfully trod, unharmed, the red-hot plow-shares.[59]
In the eleventh century, the unholy purpose of Edward the Confessor—who
was himself too ascetic to make his own wife, Editha, the partner of his
bed[60]—in his desire to accomplish the death of his own Mother, Queen
Emma, because of her partiality to his half brother, Hardicanute—the son
of Canute,—was frustrated by the Queen invoking this judgment of God,
through the ordeal of the red-hot iron, to establish her innocence of
the charge of adultery with Alwyn, the Bishop of Winchester. The Queen
triumphantly purged both herself and the Bishop, by the help of St.
Sowthin, by walking bare-footed over nine red-hot plow-shares and out of
gratitude for this vindication, the Queen and the Bishop each gave nine
manors to the Church of Winchester in memory of the nine plow-shares, and
it is reported that the King, for preferring the false charge against
them, was corrected with stripes.[61]
The Confessor was more successful in ridding himself of his
father-in-law, however, and the interesting case of Godwin, Duke of Kent,
father of Harold and sometimes called the “King maker of England,” during
the reign of Edward the Confessor, also illustrates the superstitious
belief in the corsned ordeal.
As the story goes, Duke Godwin was dining with his royal son-in-law
Edward the Confessor—for the latter had then married his daughter
Editha—and whether premeditated or not, the King repeated the accusation
that his brother Alfred had met his death at the hands of Duke Godwin. To
vindicate himself old Godwin then invoked the ordeal of the corsned and
seizing a morsel of bread he dramatically exclaimed: “May God cause this
bread to choke me if I am guilty in thought or in deed of this crime.”
Then the King took the bread and blessed it, and, whether he poisoned
it or not, when Godwin put it in his mouth and swallowed it, he was
suffocated by it and fell down dead.[62]
In this age of scepticism it is hard to accept this superstitious
explanation for the end of old Duke Godwin, but the secret of his death
is more reasonably accounted for, on the theory of Boccascio’s story of
Calen Drino, where the expected miracle was brought about by the secret
mixture of aloes in the bread of the corsned, for, as Lea suggests,
Edward the Confessor, both because of his dislike for his father-in-law,
and his desire to cast off the tutelage in which he was held, in order
to further his self interest and rid himself of a hated enemy, would no
doubt have secretly mixed poison with the corsned used in this ordeal and
then caused the story to be circulated among the superstitious subjects,
to account for the Duke’s sudden demise.[63]
We find that the ordeal was utilized in France, in the tenth century in
the notable case of Teutberga, the wife of King Lothair, great-grandson
of Charlemagne. Desiring to rid himself of his wife, this degenerate
grandson of a worthy grand-sire, accused her of incest and forced her
to a confession. She afterwards recanted and denied the truth of her
confession and offered to establish her innocence by the ordeal of hot
water, by proxy.[64]
Hincmar, the most distinguished divine of this period championed the
cause of the unfortunate queen and wrote a dissertation upon the
infallibility of the test of the ordeals, because they had the guidance
of the Divine Wisdom, effectually convincing himself and a large number
of the French subjects of the correctness of the judgment by this ordeal,
especially when King Lothair so far estopped himself from claiming that
he had not desired to get rid of his wife, by espousing his concubine,
Waldrada, whom he had, in fact, preferred to the wife he had discredited
by the criminal charge against her.[65]
Illustrating the prevalence with which the pagan practice of ordeal had
taken possession of the minds of the churchmen of the ninth century, Lea
quotes the argument of Hincmar, in his interesting work, “Superstition
and Force,”[66] as follows:
“In boiling in water the guilty are scalded and the innocent
are unhurt, because Lot escaped unharmed from the fire of
Sodom, and the future fire which will precede the terrible
judge, will be harmless to the saints, and will burn the wicked
as in the Babylonian furnace of old.”
Of course the correctness of this syllogism, depends upon the correctness
of the first assumption, based upon the delusions and superstitions of
a past age, but the conclusion seemed to satisfy a large number of that
day, judged by the standards then obtaining, among which was the idea of
a Deity who was a bigger, stronger, crueler man—a more “terrible judge.”
Some few of the many interesting trials by ordeal, which obtained during
the twelfth century in the reigns of Richard I. and King John, have been
reproduced by Sir F. Palgrave, in his “Proofs and Illustrations,” to be
found in the _Rotuli Curiae Regis_[67] for those reigns. Let us examine a
few of these old Rolls.
“_Roll of the Iter of Wiltshire, 10 Richard I._—The jurors
say that Radulphus Parmentarius was found dead with his neck
broken, and they suspect one Christina, who was formerly the
wife of Ernaldus de Knabbewell, of his death, because Radulphus
sued Christina in the ecclesiastical court for breach of a
promise of marriage she had made to him and after the death
of her husband Ernaldus, Reginald, a clerk, frequented her
and took her away from Radulphus, and Reginald and Christina
hated Radulphus for sueing her, and on account of that hatred,
the jurors suspect her and the clerk of his death. And the
country says it suspects her. Therefore, it is considered that
the clerk and Christina appear on Friday, and that Christina
purge herself by fire.[68] _Roll of the Iter of Stafford, in 5
John._—One Elena is suspected by the jurors, because she was
at the place where Rainalda de Henchenhe was killed and because
she was killed by her help and consent. She denies it. Let her
purge herself by the judgment of fire; but as she is ill, let
her be respited, till she gets well.
Andrew of Bureweston is suspected by the jurors of the death of
one Hervicus, because he fled for his death, therefore let him
purge himself by the judgment of water.”[69]
During the witchcraft craze, in Europe, the ordeal of fire and water was
frequently invoked by the accused persons, to clear themselves of the
charge, but so incensed were the people against those arraigned for this
offense that it was difficult to convince the courts and juries of the
innocence of the alleged offender, even by this supposed infallible test
of the judgment of God. It was presumed that the Devil interfered with
the correctness of the termination of the tests in this hated crime and
so the poor suspects were condemned, after suffering untold tortures,
even though the test of the ordeal favored their innocence of the charge.
The Inquisitor Sprenger cites the case of a witch, tried before the Count
of Furstenberg, in 1484. The accused invoked the test of the red-hot
iron and the Inquisitor attributed his acquiescence to his youth and
inexperience and the fact that he was not acquainted with the methods
of the Devil, to further the cause of the sorcerers. Although sentenced
to carry the hot iron only six paces, the supposed witch carried it six
paces and offered to hold it still longer, if required, as she displayed
her hand wholly uninjured. The Count was thus compelled to render
a judgment of not guilty against the accused person and at the time
Sprenger wrote, in 1487, he reported that she still lived “to the scandal
of the faithful.”[70]
The superstition connected with the trial by ordeal, as a means of
detecting the guilt or innocence of the participants of the foul crimes
of the middle ages, early took a firm hold of the popular imagination and
we find repeated references to the ordeal, in the dramatic and popular
literature of the different countries where this mode of trial obtained.
The heroic Iceland song of the Elder Edda, supposed to have been composed
between the sixth and eighth centuries, utilizes the ordeal as a means of
bringing to justice the false witness borne by the accuser, the Concubine
Herkia, in her charge of adultery against Gudrun, the wife of Atli.[71]
First describing the test, resulting in the innocence of Gudrun, and then
the proof of the guilt of her accuser, the poem proceeds:
“She to the bottom plunged her snow-white hand,
And up she drew the precious stones,
‘See now, ye men, I am proved guiltless,
In holy wise, boil the vessel as it may.’
Laughed then Atli’s heart within his breast
When he unscath’d beheld, the hand of Gudrun.”
“‘Now must Herkia to the cauldron go,
She who Gudrun had hoped to injure.’
No one has misery seen, who saw not that,
How the hand there of Herkia was hurt.
They then the woman led to a foul slough.
So were Gudrun’s wrongs avenged.”
The ordeal of the bier was exemplified in the current literature of the
age of Richard Coeur-de-Lion, for the histories of that King report that
when he met the funeral procession of his father Henry II., at Fontevraud,
the blood spurted from the nose of the deceased, because of the treason
and rebellion of which his son had been guilty.[72]
Shakespeare utilizes this story of Richard Coeur-de-Lion, in the funeral
scene, in Richard III., where Lady Anne, when interrupted in her grief at
the bier of Henry VI., is made to say to the by-standers:
“O gentlemen, see, see: dead Henry’s wounds
Open their congeal’d mouths, and bleed afresh.”[73]
In Sir Walter Scott’s “Minstrelsy of the Scottish Border” we also find
a reference to this ordeal of the bier, when, in the ballad of Earl
Richard, this author established the innocence of the maid, by this test:
“‘Put na the wite on me,’ she said;
‘It was my may Katherine.’
Then they hae cut baith fern and thorn,
To burn that maiden in.
It wadna take upon her cheik,
Nor yet upon her chin;
Nor yet upon her yellow hair,
To cleanse that deadly sin.
The maiden touched that clay-cauld corpse,
A drap it never bled;
The ladye laid her hand on him,
And soon the ground was red.”
And thus Scott uses the ordeal of the bier to establish that the accuser
was herself the guilty person[74] and the Bard of Avon and the Elder Edda
utilize this ordeal and that of the boiling water, to demonstrate the
infallibility of this Divine test, when applied, to ascertain the guilt
or innocence of one accused of such crimes as may legitimately be the
subject of this character of proceeding, known to the ancient law as one
of the Judgments of God.
The ordeal was entirely a judicial proceeding, regularly used, in
an early day, for the trial of criminal cases, before the civil and
ecclesiastical courts. The accused had no alternative but to undergo
the trial by ordeal, for when ordered to submit to it, the order had
the force and effect of a regular judgment of the court.[75] A failure
to comply with the order of the court to undergo a trial by ordeal,
was treated as a contempt of court, and under the early English law,
the accused who refused to submit to such a test, was outlawed and his
property was confiscated, the same as if he had been adjudged guilty of
the offense, for in refusing a compliance with the mandate of the law, he
placed himself beyond the pale of the law and later could not claim the
right to a lawful trial.[76] The Anglo-Saxon codes allowed no alternative
but contained direct and specific provisions for the trial by ordeal, in
all its different phases.[77]
The circumstances and conditions under which ordeal was employed, in the
trial of the various felonies known to the early Saxon laws, varies,
necessarily, with the customs and legislation of the different rulers,
and sometimes we find that the right of selection obtained, between
this and other modes of compurgation, or between the different forms of
ordeal.[78]
Little, if any good, could result from a discussion of the power of a
Court to order submission to such barbarous treatment, for the courts
assumed the power and it was backed-up with the influence of the Church
and the authority of the King. The citizens could do little else than
submit to such a formidable alliance, which proceeded in the name of the
Majesty of the Law and the Solemn Assurance of the Church, for there
were no constitutions to protect the citizens from cruel or unusual
punishments; might was right when used against the weak and oppressed
and the power of the Church and State was too much for any individual to
overcome. Society was not organized, as at present, to protect the rights
of the individual, but the Church and State were all-powerful and their
orders had the force to overcome all private resistance.
As shown, in the beginning, the institution known as trial by ordeal,
like many other of the cruel customs of the ancient world, had the Mosaic
law as its foundation and the Church’s approval, in the construction of
the foundation and the recognition of the whole institution. The Church
was not only ready to accept the barbarous practices of its pagan
converts but itself gave them fresh claim to confidence, by throwing
around them the solemn ceremonies of its own approval. The ordeals were
all conducted with the aid of the priests, and prelates in all the
Catholic countries were everywhere granting special charters authorizing
the privilege of trials by ordeals.[79]
But as the Church was partly responsible for the practice of trials by
ordeal, because the Churchmen were but human and, as such, entered into
the manners and customs of the people of the period when they lived, the
Church had no inconsequential part in abolishing this barbarous custom,
for ever since the sixth century and perhaps from the beginning of the
custom, eminent Churchmen had opposed the institution as a pagan custom,
not authorized by the teachings of the ancient Jews or the religion of
Christ, and finally, the protests of these wise Churchmen culminated in
the suppression of this old test, and in 1215 the Lateran Council forbade
the clergy from afterward taking part in the ceremony known as trial by
ordeal.[80] And Henry III., following the lead made by the Church, “Seeing
that the judgment of fire and water is forbidden by the Church of Rome,”
directed his judges, starting on their circuits, to adopt other methods
of proof and to forever discard this brutal test.[81]
If the Church was remiss in its duty to oppose the ordeal, therefore,
in the beginning, it brought about the repression of the practice, and
is, at least, entitled to the benefit of the approval of the friends of
humanity for this tardy beneficence, upon its part.
If true that every age, like every person, has its own sins and
short-comings to answer for, and that is the happiest which best succeeds
in hiding them for a time,[82] then the age of the trial by ordeal,
according to our twentieth century standard, was guilty of a sin that
the past centuries must atone for, if atonement is essential for the
wayward customs of a pagan race, struggling without compass or needle,
amid the darkness of a barbarous age, to steer a straight course. They
should not be held to more than the ordinary standards of right and wrong
then prevailing, in their efforts to find the higher law for society,
when just able to attempt to clamber up the mountain heights of wisdom.
The inhabitants of the centuries who utilized the trial by ordeal had
not then perfected their judicial system so that very high ideals of
individual right obtained, but they had made wonderful strides in the
arts and sciences, while practicing this hideous custom of trusting to
the wisdom of God, in the trials of men and women for their offenses
against society, as judged by man made laws. We have elevated the
standards of the judicial system somewhat, since that period, but in our
own time, a large number of people, instead of further establishing the
independence of the judiciary, are favorable to submitting to popular
vote, the correctness of a given decision, or the judicial fitness
of a judge; mormonism only recently was abolished and instead of the
superstition and delusion which invoked the judgment of God in trials of
witches and others accused of unproven crimes, we have spiritualism and
other similar protests against rationalism and reason, so we are not yet
in a position to condemn, in unmeasured terms, our older brothers of the
day of trials by ordeal.
FOOTNOTES:
[1] Pattetta, Ordalia, c. I.
[2] From the Anglo-Saxon, _Ordaal_, _or_, primitive, and _daal_,
judgment, meaning “primitive judgment,” or _urtheil_, according to the
German.
[3] Thayer says: “Nothing is older,” Harvard Law Review, Vol. V., p. 63;
II. Essays in Anglo-American Legal History, 392.
[4] Numbers, V., 14, 15, 19, 24, 27, 28.
This same ordeal is in use among the Africans, of the Gold Coast, to
determine incontinence on the part of a woman.
From Herodotus it would seem that the ancient Egyptians believed in
ordeals, with other divine power, to solve the guilt of prisoners, in
cases where the evidence was doubtful, as he narrates instances where
Aames II. who led a dissolute life, was convicted on the supposed divine
judgment of the oracle. Herodotus II., 174.
In their excellent history of English Law, Pollock and Maitland say, of
the trial by ordeal: “The history of ordeals is a long chapter in the
history of mankind; we must not attempt to tell it. Men of many, if not
all races, have carried the red-hot iron or performed some similar feat,
in proof of their innocence.” (Vol. II., p. 598.)
[5] Sophocles’ _Antigone_, 264; Aeschylus, fr. 284.
[6] Asiatic Researches, vol. i., p. 389.
[7] Neilson’s “Trial by Combat.”
[8] Thayer’s “Older Modes of Trial,” II. Essays in Anglo-American Legal
History, p. 393.
[9] Pattetta, Ordelie.
[10] Mackay’s Delusions; Athelstane.
[11] Pattetta, Ordalie.
In Sophocles’ Antigone, the guards protest their innocence to Creon, of
any complicity in the burial of Polynices and offer to establish their
innocence by ordeal, in the following lines:
“Ready with hands to bear the red-hot iron,
To pass through fire, and by the gods to swear
That we nor did the deed, nor do we know
Who counselled it, or who performed it.” (PP. 264-267.)
[12] Pattetta, Ordalie; I. Reeve’s History English Law, p. 203.
[13] _Ante idem._
[14] Mackay’s “Memoirs of Delusions.”
[15] _Ante idem._
[16] According to Jolly, the translator of this book, the materials for
the text date back many centuries before Christ and some of the old laws
treated of, belong to the remotest antiquity, p. XX.
Rishi Narada was a celebrated Hindu Sage and Lawgiver, supposed to have
been the son of Brahma and Saraswari. Mrs. Manning’s “Ancient and Med.
India,” Vol. I., pp. 146, 249; Vol. II., pp. 119, 134.
The ordeal of the eucharist was based upon the statement of the Apostle,
construed with pious veneration and accepted literally “he that eateth
and drinketh unworthily eateth and drinketh damnation to himself.” _I.
Corinthians_ XI., 28, 29; Lea, “Superstition and Force,” (3 ed.) 304.
[17] Brahma, the first person, in the Triad, of the Hindus, was the god
of the fates, master of life and death, the author of the Vedas and the
great lawgiver and teacher of India.
[18] Institute Narada, Pt. I., c. 5, sec. 102, to Pt. II., pp. 44, 45.
According to an eminent authority, ordeals are still practiced in India,
in private life. Sir Henry Maine’s “Life and Speeches,” p. 426; Manning’s
“Ancient and Mediaeval India,” Vol. I., pp. 146, 249; Vol. II., pp. 119,
134.
From the fragments of the Avesta, which have come down to us, containing
snatches of the prehistoric law of the ancient Persians, the ordeal of
boiling water was a fixed, settled legal procedure, at that distant day,
for it is there recorded:
“Creator: he who knowingly approaches the hot, golden, boiling water, as
if speaking truth, but lying to Mithra;
What is the punishment for it?
Then answered Ahura-Mazda: Let them strike seven hundred blows with
the horse goad, seven hundred with the craesho-charaha.” This was the
punishment affixed for using this particular ordeal for fraudulent
purposes, just as if one trifled with one of the settled legal processes
of the present day and as perjury was then prevalent, the punishment of
twice seven hundred blows to the perjurer, was the penalty for using this
ordeal to further perjury, or false swearing. Vendidad, Farg. IV., 156;
“Records of the Past,” VII., 109; Lea, “Superstition and Force,” (3’ ed.)
233.
[19] Cap. Car. Mag. ann. 779, sec. 10; Lea, “Superstition and Force,” (3
ed.) 348.
[20] Capit. iv ann. 803, secs. iii, vi; in L. Longobard, Lib. ii, Tit.
xxviii, sec. 3; Tit. iv, sec. 25; Capit. Car. Mag. I., ann. 809, sec. 20.
[21] Capit. Car. Mag. ann. 794, sec. 7; Lea, “Superstition and Force,” p.
338.
[22] Concil. Aquisgran. cap. xvii.
[23] L. Longobard, Lib. II., Tit. lv, sec. 32; Lea, “Superstition and
Force,” p. 298.
[24] Herbert’s Antiquities (1804), p. 146.
[25] De Moribus Germanorum, cap. X.
[26] Herbert’s Antiquities, p. 147.
[27] _Ante idem._; I. Pollock and Maitland’s History English Law, p. 39;
Dr. Liebermann’s Sitzungsberichte der Berliner Akademie, 1896, XXXV., p.
829.
[28] Leg. Athelstan, 23; I. Reeve’s History English Law, p. 201; Analecta
Anglo-Brit. lib. ii, cap. 8, inter Leges Athelstan, cap xxx.
[29] Dr. Liebermann’s Sitzungsberichte der Berliner Akadamie, XXXV., 829;
I. Pollock and Maitland’s History English Law, p. 39, note.
[30] Herbert’s Antiquities (1804), pp. 147, 148.
[31] I. Reeve’s History English Law, pp. 201, 202; Leges Athelstan, 23.
[32] Mirror of Justice, c. 7, s. 24.
[33] I. Reeve’s History English Law, p. 203.
[34] Finlason’s note to I. Reeve’s History English Law, p. 201.
Pollock, in his “Anglo-Saxon Law,” says “A man of good repute could
usually clear himself by oath, but circumstances of grave suspicion or
previous bad character, would drive the defendant to stand his trial by
ordeal.” I. Essays in Anglo-American Legal History, p. 93.
[35] Lamb, de priscis Angl. Leg. cap. 39.
[36] Herbert’s Antiquities (1804), p. 156.
[37] _Ante idem._
[38] Leges, Aesthelstan, iv, sec. 6; Aetheldred, iii, sec. 7; Cnut,
Secular. sec. 58; Lea, “Superstition and Force” (3 ed.), 253.
[39] Legg. Edwardi, cap. iii; Lea, “Superstition and Force” (3 ed.) 340.
[40] Legg. Aethelredi, cap. i, sec. I; Cnuti Saecul. cap. xxii; Henrici,
I., cap lxv, sec. 3; Lea, _supra_.
[41] Schmid, Gesetze, p. 357; Stubbs, Select Charters; I. Pollock and
Maitland’s History English Law, p. 450.
[42] _Ante idem._
[43] LL. Inae, c. 77; _Traites sur les coutumes Anglo-Normand_. Tom. I.,
p. 577; Hale’s History Common Law, p. 152.
[44] Thayer “Older Modes of Trial,” V. Harvard Law Review, 64; II. Essays
in Anglo-American Legal History, p. 394.
[45] Leges Henri, 31, sec. 5; Foedera, i, 154; II. Pollock and Maitland’s
History English Law, p. 650.
[46] Palgrave, Commonwealth, p. 207; II. Pollock and Maitland’s History
English Law, p. 650.
[47] Glanville (Beame’s tr.), p. 283.
[48] I. Reeve’s History English Law, pp. 456, 457; Mirror of Justice,
cap. III., sec. 23; Lea, “Superstition and Force,” (3 ed.) 256.
“The water ordeals, both hot and cold, were stigmatized as plebian, from
an early period, as the red-hot iron and the duel were patrician.” Lea,
283.
[49] I. Reeve’s History English Law, p. 456; I. Pollock and Maitland’s
History English Law, p. 152.
[50] _Ante idem._
[51] I. Reeve’s History English Law, p. 456.
[52] Litt. Hen. II., vol. iv, 279; I. Reeve’s History English Law, 457.
Instead of the _judicium Dei_, the success of the fifty men would look
more like _judicium clericus_. Eadmer, Hist. Nov. 102; II. Pollock and
Maitland History English Law, 599.
[53] This order to the justices, as we have seen, in the Essay on _Peine
forte et dure_, had the effect of filling the jails of the kingdom with
prisoners content to await the invention of some other method of trial
than that of ordeal, and since none such was provided, to refuse to plead
and thus baffle the king’s justices. To overcome this custom, the order
not to _endanger their lives or limbs_, soon gave place to the terrible
torture, by which they were literally _pressed to death_, for standing
mute.
[54] II. Reeve’s History English Law, 286.
[55] II. Reeve’s History English Law, 287, and note.
[56] Lea “Superstition and Force,” (3 ed.) 291; Daemenologiae, Lib. III.,
cap. vi.
[57] _Ante idem._
The Lateran Council of 1215 forbade the clergy to take part in the
ceremony of the ordeal any further and in prompt obedience to this
decree in England, Henry III. abolished it in the kingdom, as England
was then at the Pope’s feet, and aside from the cases of witchcraft and
sorcery, in the reign of James I., the ordeal last appears, as a method
of judicial trial, in the old rolls of the reign of King John. (Concil.
Lateran. IV., c. 18; Foedera, i, 154; Rolls of King’s Court, Pipe Roll
Soc. 80, 86, 89;) Select Pl. Cr; Note Book, pl. 592; Lea, “Superstition
and Force,” (3 ed.) 421; II. Pollock and Maitland’s History English Law.,
p. 599 and notes.
Lord Hale informs us: “That in all the time of King John ... trial by
ordeal continued, ... but it seems to have ended with this king, for I do
not find it in use any time after.” (History Common Law, p. 152.)
In Nigeria the trial by ordeal still obtains in cases of witchcraft and
to vindicate the chastity of women. P. Amaury Talbot’s article, in London
Telegraph, July, 1912.
[58] Regino. ann. 886—Annales Metenses; Lea, “Superstition and Force,” (3
ed.) 257.
[59] Lea, “Superstition and Force,” _supra_; S. Kunegundae, cap. 2;
Ludewig Script. Rer. German. I., 346.
[60] Green’s History English People, vol. I.
[61] Freeman’s Norman Conq. Vol. II; Rapin, History d’ Angleterre, I.,
123; Wm. of Malmesbury, Giles’ note, ann. 1043; Lea, “Superstition and
Force,” (3 ed.) 258.
It seems that the charges against Queen Emma were preferred by Robert,
Archbishop of Canterbury. She was accused both of consenting to the death
of her son, Alfred, and of preparing poison for her son Edward, the
Confessor, and also of intimacy with Alwyn, the Bishop of Winchester. The
Dowager Queen, on the night preceding the trial, prayed for help, in the
Abbey of St. Swithune, at Winchester and the next day she passed over the
nine plow-shares unhurt. Archbishop Robert fled the kingdom and the King,
who had brought about her trial, did penance for his credulity.
(The Percy Anecdotes, p. 161.)
The paternity of two children resulting from a morganitic marriage of
Robert Curthose, son of William the Conqueror, is reported to have been
established by the ordeal of the red-hot iron, which the mother carried
unhurt, and Curthose, then Duke of Normandy, thus convinced of the
legitimacy of the boys, regularly adopted them. Roger de Wendover, Ann.
1085; Lea, “Superstition and Force,” (3 ed.) 259.
[62] Roger of Wendover, ann. 1054; Matthew of Westminster, ann. 1054;
Chronicles of Croyland, ann. 1053; Henry of Huntington, ann. 1053; Wm. of
Malmesbury, Lib. II., cap. 13; Lea, “Superstition and Force,” (3 ed.) p.
301.
[63] Lea, “Superstition and Force,” _supra_.
[64] Lea, “Superstition and Force,” (3 ed.) p. 247.
[65] _Ante idem._
[66] Lea, “Superstition and Force,” (3 ed.) p. 247; Hincmar, de Divert.
Lothat. Interrog. vl.
[67] Palgrave erroneously states that the _Retuii Curia Regis_ is
the “oldest judicial record in existence.” The records of trials
obtaining during the reign of Hammurabi, 2250 years before Christ, are
in existence. See Chapter on “_Recall of Judges_;” John’s “Laws of
Babylonia,” etc.
[68] Palgrave’s “Proofs and Illustrations,” clxxxviii; Stephen’s
“Criminal Procedure,” II. Essays in Anglo-American Legal History, pp.
487, 488.
[69] Palgrave’s “Proofs and Illustrations,” clxxxv; Stephen’s “Criminal
Procedure,” _supra_.
[70] Malleus Maleficar. Francof. 1580, pp. 523-31; Lea, “Superstition and
Force,” (3 ed.) 264.
[71] Benjamin Thorpe’s Elder Edda, pp. 106, 107; Prof. Bugge’s Ed. of
Copenhagen, (1867); Prof. Rask’s ed. of 1818; Lea, “Superstition and
Force,” (3 ed.) 335.
[72] Benedicti Abbatis Gest. Henr. ann. 1189; Roger de Hoveden, ann.
1186; Lea, “Superstition and Force,” (3 ed.) 316.
[73] Richard III., Act I., Scene II.
Sir Walter Scott uses the ordeal of the bier in the “Fair Maid of Perth,”
in connection with the killing of Oliver Proudfute, who was killed with a
lochabar axe. On the principle that “murder will out,” while the body lay
in state at the High Church of St. John, in Perth, the servants of Sir
John Ramorny were required to pass by the corpse and touch it, but when
Bonthron, the person who had really slain the deceased, came to the body,
he refused to touch it and claimed the right of trial by battle. (“Fair
Maid of Perth,” Chapter XXIII.)
[74] Lea, “Superstition and Force,” (3 ed.) 335.
[75] II. Pollock and Maitland’s History English Law, 650; Lea
“Superstition and Force,” (3 ed.) 333.
[76] _Ante idem._
[77] II. Cnuti, Saec. cap. xxx, xli.
[78] L. Henrici, I., cap. lxv, sec. 3.
[79] Lea, “Superstition and Force,” (3 ed.) 354, 356; Annal. Benedict. L.
57, No. 74, ann. 1036.
[80] Concil. Lateran. IV., c. 18; II. Pollock and Maitland’s History
English Law, 599.
[81] Rymer, Foed. I., 228; II. Pollock and Maitland’s History Eng. Law,
_supra_.
Illustrative of the approval of the church of Rome in the ancient
procedure by ordeal, we find, in the ninth century that Hincmar
expatiated upon the blessing of such a test, in that it combines “The
elements of water and of fire: the one representing the deluge—the
judgment inflicted on the wicked of old; the other authorized by the
fiery doom of the future—the day of judgment, in both of which we see
the righteous escape and the wicked suffer.” Hincmar, de Divort. Lothar.
Interrog. vl; Lea, “Superstition and Force,” (3 ed.) 244.
[82] Lea, “Superstition and Force,” (3 ed.) 370.
CHAPTER VI.
PEINE FORTE ET DURE.
_Peine forte et dure_,[1] or, the “strong and hard pain,” as it was most
appropriately termed, was the name given in Europe to the particular kind
of punishment formerly inflicted upon a prisoner, charged with felony,
where he stood mute and refused to answer on his arraignment, or having
entered his plea of not guilty, where he peremptorily challenged more
than twenty jurors, which was quite generally considered a contumacy
equivalent to standing mute.[2]
Generally, in indictments for high treason and the lower felonies and
misdemeanors, standing mute was held equivalent to a conviction and the
prisoner was sentenced and received his punishment, just as if he had
entered a plea of guilty or suffered a conviction. But in all other
felonies the prisoner was required to plead to the indictment, before a
conviction could be obtained and if he obstinately stood mute, or refused
to plead, he was subjected to the _peine forte et dure_, a judgment
purposely ordained to be exquisitely severe, that by that very means it
might rarely be put into execution.
The judgment for standing mute, was: That the prisoner be remanded to
the prison from whence he came, and put into a low, dark chamber, and
there be laid on his back, on the bare floor, naked, unless where decency
forbids; that there be placed upon his body as great a weight of iron
as he can bear; and more, that he have no sustenance, save only, on the
first day, three morsels of the worst bread; and on the second day three
draughts of standing water, that should be nearest to the prison door;
and in this condition, this should be alternately his daily diet, until
he answers to the indictment.[3]
To understand how such an inhuman institution as that of pressing
prisoners to death came into existence, it is necessary to understand
somewhat the history of criminal proceedings of the period when it
obtained. The motive which would induce the prisoner charged with felony
to submit to this terrible punishment, rather than enter his plea, was no
doubt to escape the attainder which would result from a conviction for
felony. If he was convicted of felony, his goods were forfeited to the
crown and in the case of capital felony, corruption of blood followed
attainder and the felon could neither inherit nor transmit landed
property.[4] Where the prisoner had heirs, therefore, and possessed any
estate, his attachment and affection for his heirs or children frequently
prompted him to suffer the punishment of being pressed to death, to avoid
the attainder of his name and the corruption of his blood, for death and
attainder would both result from the conviction, which was frequently
certain to result, in any event.
Trial by ordeal obtained in England until the thirteenth century,[5] and
as a part of the procedure obtaining when this barbarous custom prevailed
the prisoner when asked “Culprit, how will you be tried,” replied, “By
God,” meaning that he would be tried by ordeal, rather than “By my
country,” which was the request for a jury trial. When the prisoner stood
mute and refused to plead, the court was so perplexed that frequently the
prisoner would escape by some trivial punishment, as the procedure of
the period did not include this kind of a case, so the astute criminal
lawyers of these times no doubt frequently practiced this subterfuge to
perplex the court and secure the escape of a guilty client. Legal forms
at this period had much greater efficacy than at present when we have
statutes of jeofails and look to the substance, rather than the forms of
things, and it was unheard of then to try a prisoner by ordeal, before he
entered his plea, or even to put him upon his country, so where he stood
mute, the difficult thing was to secure his consent to try him by either
method.
Under the stress of the perplexity of having found concrete cases not
covered by the custom and practice of the period, the judges instantly
ordered some of the offenders standing mute on malice, to be put to
death, for refusing to consent to be tried, according to the custom of
the realm, but this was practically judicial murder, as the defendant
had not been legally convicted, before sentence, so the pendulum of
public sentiment swung back from this precedent and brought about a great
revulsion to this practice.
In the beginning of the thirteenth century the penalty for refusing to
plead consisted merely of a severe punishment, with low diet, until the
obstinacy was overcome, and latterly, the practice prevailed, which had
no legal sanction, of tying the thumbs together, with whipcord, that the
pain might induce the prisoner to plead.
During the reign of Edward I., in the year 1275, in the proceedings
of the Parliament of Westminster, the first mention is made of this
punishment for standing mute through obstinacy or wilfullness. It was
enacted by this statute that felons refusing to plead through obstinacy
should be confined in the prison, _forte et dure_. They were to go
“barefooted and bareheaded, in their coat only, in prison, upon the bare
ground continually, night and day, fastened down with irons,” only eating
and drinking on alternate days, until the plea was entered.[6] But the
courts could not wait for the obstinate prisoners to voluntarily renounce
their obduracy and succumb to such mild treatment and the accumulation
of cases where the prisoner stood mute and the growing popularity of
this offense, seemed to threaten the speedy dispatch of the criminal
business of the period. Starvation was then added to the punishment of
confinement, but this did not accomplish the desired end, of forcing
these obdurate offenders to consent to be tried, according to the custom
then obtaining.
As before seen, the first statute, touching upon this punishment, passed
during the reign of Edward I., applied only to “notorious felons,”
who were “openly of evil name,” for these alone, refusing to plead
before the justices at the King’s suit, were to have the “strong and
hard punishment,” that the act called for, and by express statutory
exception prisoners “taken upon light suspicion” were not to suffer the
punishment.[7]
Some writers have taken the position that the punishment, _peine forte
et dure_ owed its existence alone to this statute, but Sir Edward Coke
states that the punishment was assessed at common law, before the
enactment of this statute,[8] and the statute in merely providing for an
imprisonment _forte et dure_, was declaratory of an existing punishment
assessed by the common law, but not sufficiently described, or limited.
This view is shared by Reeves, who states that this method of treating
felons who stood mute was introduced sometime between the fifth year of
the reign of King Henry III. or perhaps from the time of Bracton, and the
third year of King Edward I. and the punishment did not owe its existence
to this statute.[9]
However this may be, we find that during the reign of Henry IV. the mild
punishment provided for by the statute of Edward I. and the proceedings
detailed by Fleta and Britton,[10] of merely being fastened down with
irons, on the bare ground of the prison, “until the plea was entered,”
had given way to the harsher punishment of being compelled to lie under
a “_peine_,” “_till they were dead_,” an event most likely to follow
speedily from the quantity of weight or iron placed upon such prisoners.
The _peine forte et dure_, as it was known, therefore, from the fifteenth
to the eighteenth century, seems to have been firmly established as
an institution of the English Criminal Law, during the time of Henry
IV., and the reason for its existence is to be found in the object of
the justices in eyre and justices of gaol delivery, of obviating the
necessity of remaining for long periods in the English country towns,
waiting for the mild effect of the formerly prevailing punishment,
provided for by the statute of the reign of Edward I., in inducing
prisoners charged with felony to consent to be tried.[11]
The prevalency of the practice of standing mute in such cases, under
the milder form of punishment, increased to such an extent that the
patience of the justices was sorely tried. They determined, about the
beginning of the fifteenth century, to put an end to such a practice,
by furnishing such a harsh punishment that the example of inflicting it
would discourage prisoners from thus defying the law, even if it resulted
in the speedy and painful death of the offender. All exhortations and
mild treatment were abandoned and the obdurate prisoner, thus defying
the court, was sentenced to be literally “pressed to death,” unless he
recanted and submitted himself to a trial, according to the fixed customs
of the realm.
It may justly be doubted if the defiance of the majesty of the law
by this failure to plead was sufficient to justify such a barbarous
practice, with the object of compelling a respect for the law, or if the
remedy was not really worse than the disease, but upon this philosophical
phase of the subject we are not concerned. Whether justly or unjustly,
this species of punishment obtained for three centuries and a half in
the English criminal law and a great many concrete cases, illustrating
the application of the custom, arose during this period. And it is
interesting to note how the punishment was made more severe with the
increasing prevalency of the offense.
In the year 1219, when the first eyre of Henry III.’s reign was in
session, a case arose for the instruction and advice of the King’s
Council regarding the course to be pursued where the prisoner refused to
plead.[12]
It was decided that although the prisoner was charged with the
gravest kind of a felony, he was to be safely kept in prison, but the
imprisonment was not to endanger life or limb. No suggestion was made
of attempting to compel the submission to a trial, and the details
of assessing the punishment to be inflicted was left wholly to the
discretion of the justices.[13]
The cases occurring before the passage of the statute of Westminster in
the reign of Edward I., show that the justices did not have any fixed
method of handling the cases wherein the prisoner refused to plead, but
took such course as seemed best suited to the individual case before
the court. Sometimes the expedient was resorted to of taking the verdict
of an exceptionally strong jury and condemning the prisoner, if he was
found guilty, regardless of whether he had formally entered his plea
or not. During the Warwickshire eyre of 1221 Martin Pateshull pursued
this course, on two different occasions.[14] The prisoner stood mute
and refused to plead, but the twelve hundredors and twenty-four other
knights, having sworn to his guilt, he was hanged.[15]
In 1222, on the refusal of a prisoner accused of receiving felons, to
plead to the charge, at Westminster, the court merely committed him to
prison, to be held in solitary confinement, although the townships and
the knights of the shire had declared him guilty.[16]
During Bracton’s time, the procedure does not seem to have taken the
course that it did in later years, as he speaks of the method of
compelling a man to place himself upon the country and states that he was
considered undefended and quasi-convict, if he refused.[17]
Thus, it appears that before the enactment of the statute of Edward I.
the cases arising were determined without any fixed rule governing the
punishment to be assessed, but a few years after this act, the prisoner
was laden with irons and in the course of a short period the hideous
_peine forte et dure_ was developed.[18]
During the reign of Edward III. the courts adopted starvation as a
remedy for refusing to plead to an indictment for murder, as the case
of Cecelia Rygeway illustrates. She was indicted for the murder of her
husband and refusing to plead, she obstinately stood mute. She was
committed to prison and lived without meat or drink for a period of
forty days and nights, when she was allowed to go free, as her wonderful
longevity, without food, was ascribed to the influence of the Virgin
Mary, whose intercession could only be reconciled with the innocence of
the defendant.[19]
Starvation was generally discarded sometime after the statute of Edward
I. and after the reign of Henry IV. the _peine forte et dure_ was
the regular and lawful mode of punishing persons who stood mute and
obstinately refused to plead in charges of felony.
In 1442 Juliana Quick was arraigned upon a charge of high treason, for
speaking contemptuously of the King, Henry VI. She refused to plead and
it having been determined that her refusal was obstinate, rather than by
an infirmity of nature, she was “pressed to death,” in a summary manner.
The case of Margaret Clitherow, who was pressed to death at York, on Lady
Day, March 25’, 1586, is most pathetic, as narrated by her spiritual
adviser, the good John Mush, a friendly priest. Margaret’s husband was a
Protestant, but she was accused of harboring Jesuit and Seminary priests,
of hearing mass and other similar offenses and so she was committed to
York Castle and later was regularly arraigned in the Common Hall. When
plied with the usual question, “Culprit, how will you be tried?” instead
of making the usual answer, “By God and my country,” the prisoner refused
to make any other answer than that she would be tried “by God and your
consciences.” After repeated entreaties by the court, and continued
obstinacy of the prisoner, she was committed to prison and during the
intercession of the court Parson Whigington, a puritan preacher, labored
long and hard with her to convince her that she ought to forego her
obduracy and enter her plea, but she refused to do so. On her second
arraignment, when the court seemed about to condemn her to the _peine
forte et dure_, Parson Whigington spoke in the interest of the prisoner,
calling the court’s attention to the fact that “this woman’s case is
touching life and death; you ought not, either by God’s law, or man’s,
to judge her to die upon the slender witness of a boy.” Entreating her
twice again to renounce her obdurate plea and to throw her case upon
the country, on her refusal, the court ordered “the law to take its
course”; she had her arms pinioned with a cord, by the Sheriff and as she
was led through the crowd, the jeers and taunts, ever levelled at the
unfortunate, in keeping with “man’s inhumanity to man,” gave the Sheriff
the idea that he was to soon become a popular man, by the murder of this
defenseless woman, so he proceeded to his work as if he were, in fact, a
hero.
She was urged to press the exemption of pregnancy, but refused, and the
Lord Mayor of York, on his knees begged her to enter her formal plea to
the charge against her and to submit to trial, as did her friend the
good Parson Whigington. She stood firm, as if courting martyrdom, in an
attempt to demonstrate the injustice of such a hideous punishment, and
finally even the sympathetic Parson Whigington, after expressing his
pity, left her and came again no more.
Her execution having been set for Friday, as if in commemoration of the
day when the gentle Saviour took his departure upon the cross of Calvary,
this innocent woman, on Lady Day, in 1586, also suffered martyrdom and
died her death, that the horrible example of this hideous punishment
could be made the more detestable. She refused the offer of friends to
add sufficient weight to dispatch her immediately, but subjected herself
to the torture, as deliberately as any martyr ever took the rack. She was
led bare legged and bare-footed through the street, with a loose gown to
hide her nakedness and distributed alms to the idle spectators as she
passed along. The inhuman wretch who acted as Sheriff was named Fawcett
and with no instinct of decency or chivalry, he bade her “put off her
apparel,” whereupon she pleaded on her knees, that she might be allowed
to die in her “smock” and that “for the honor of womankind, they would
not see her naked.” Fawcett refused this becoming plea, but finally, on
the entreaty of her friends, she was allowed to die in a long loose linen
robe she had made for the occasion.
She was placed flat upon the ground on her back, with a handkerchief
on her face; a door was laid upon her body and her hands were bound by
Fawcett to two posts, so that her arms and body made a perfect cross;
even as the Holy One of Galilee was taunted by the mob who followed Him
to Calvary, so this innocent soul was crossed by the taunts and gibes
of the vulgar mob, until finally the weights were placed upon the door.
A large, sharp stone had been placed under her back, and seven or eight
hundred pound weight was placed on the door and this weight broke her
ribs and caused them to burst through the flesh on her sides. She gave
but a single cry and exclaimed: “Jesu, Jesu, Jesu, have mercy upon
me.”[20] Let us hope that with the wail of this lost soul the weeping
Christ made room for the misguided martyr, in a realm where such Satanic
tyranny and intolerable cruelty are unknown. Strange, is it not, that
the death knell of this hideous and cruel procedure did not follow
immediately, as a result of the aroused and outraged public feeling,
after the death of this good woman, in this cruel manner? But when it
is considered that such Satanic cruelty could have lasted for sixteen
hundred years after the crucifixion of the Saviour—and that all traces
of his presence are not entirely eliminated from the earth, as yet—it is
quite evident that the ideals of holiness and righteousness are slow to
permeate the hearts of all the human family.
Anthony Arrowsmith stood mute and refused to plead to the charge of
felony, in 1598, and was accordingly pressed to death, in the usual
manner.[21]
Walter Calverly, of Calverly in Yorkshire, was arraigned at the York
assizes in 1605, for murdering his two children and stabbing his wife,
and on refusing to enter his plea he was pressed to death, in the castle,
by a large iron weight, placed on his breast.[22]
It would be impossible, in any reasonable space, to recount all the most
interesting cases where this inhuman punishment was inflicted, during
the last half of the sixteenth and the early part of the seventeenth
centuries, as a great many prisoners underwent this torture about this
time. For the nine years between 1609 and 1618, for instance, there
were thirty-two prisoners subjected to this punishment and among this
number three were women, in Middlesex county alone. In the record of
these cases the Clerk wrote the words: “_Mortuus en pen fort et dur_,”
which furnished the sad epitaph for each of the beknighted sufferers who
underwent this fearful punishment. The records show that many of these
poor prisoners were totally destitute and suffered this punishment either
through stupidity of the prisoner or of his counsel, or through obstinacy
or indifference to his personal suffering and death.[23]
In 1615 Sir Richard Weston, a prisoner of some note, was arraigned for
the murder of Sir Thomas Overbury. He stood mute and obstinately refused
to plead to the indictment, after being solemnly warned by the judges
of the terrible consequences of his persisting in his defiance of the
laws of his country. The proceedings were adjourned to give him time for
reflection, but on his continued obstinacy, he was adjudged to suffer
the _peine forte et dure_.[24]
Major Strangeways was pressed to death, at Newgate, in 1657, for
obstinately refusing to plead to an indictment charging him with the
murder of his brother-in-law, Mr. Fussell. At the Coroner’s inquest he
was made to take the corpse by the hands and touch the wounds, upon the
supposition that if he had committed the murder, the wounds would bleed
afresh. Although he was innocent, according to this test, it availed
him nothing, however, and he was placed upon trial at the Old Bailey,
where so many tragedies were enacted, in the olden time, in the name of
the law, and refusing to plead and standing mute, in order to prevent
the attainder of his blood and the forfeiture of his estate, resulting
from his conviction, so certain to follow his trial, he was condemned to
the _peine forte et dure_. The press was placed upon him angle-wise and
although of sufficient weight to cause him much pain, it was not heavy
enough to kill him, so the spectators, through pity, no doubt, for the
sufferer, added the weight of their bodies to that of the press and soon
he was out of his suffering and in keeping with the custom of the period
his dead body was displayed to the vulgar gaze,[25] that the morbidly
curious could advertise the details of the tragedy and thus deter other
offenders from a similar offense.
In the year 1720, a man named Phillips, who stood mute and refused to
plead to an indictment for felony, was adjudged to undergo the _peine
forte et dure_; he was placed under the press at Newgate and suffered the
torture for a considerable time, until he concluded to enter his plea
of not guilty and stand trial, in the ordinary manner, so the press was
removed and he entered his plea and stood trial.[26]
And in the following year, one Nathaniel Hawes, upon his arraignment for
a felony, stood mute and obstinately refused to enter his plea and on
being sentenced to the _peine forte et dure_, he suffered the pressure of
a weight of two hundred and fifty pounds for a period of seven minutes
and then gave up his resolution and craved the privilege of entering his
plea and throwing himself upon the country in his trial.[27]
In 1726 a man named Burnworth, arraigned for murder, concluded that he
would stand mute and try the effects of the _peine forte et dure_. He
was sentenced at Kingston to suffer this punishment for his obstinate
defiance of his country’s laws and after being pressed for an hour and
three-quarters, with four hundred pounds of iron, his will was broken. He
was taken to the dock and was tried, convicted and hanged.[28]
From the number of reported cases that have been inspected, it seems
that a great many were unable to withstand the suffering resulting from
the application of the weight to their bodies, but when the torture was
experienced, they would weaken and conclude to enter their plea.
This was true of John Durant, who was arraigned at the Old Bailey, in
1734. Upon his obstinately refusing to enter his plea upon a charge of
felony, his thumbs were first tied together with whipcord and the Sheriff
pulled him up taut in the presence of the court and the latter dignitary
promised him the _peine forte et dure_, forthwith, if he did not
regularly enter his plea to the indictment. On reflection, he concluded
to do this, so he was placed upon his trial and filed his plea of not
guilty.[29]
As late as the year 1741, it is reported that a prisoner was pressed to
death, at the Cambridge assizes, for standing mute and refusing to plead
to a charge of felony, after the tying of his thumbs and other customary
procedure was found to be unavailing.[30]
The only instance noted in which this punishment was ever inflicted in
the United States, was in the case of Giles Cory, of Salem, who stood
mute and obstinately refused to plead, when arraigned upon a charge of
witchcraft and sorcery.[31]
He was arraigned at Salem, in April, 1692, before Hawthorn and Jonathan
Curwin. “Mary Walcott, Mercy Lewis, Ann Putnam, Jr., and Abigail Williams
affirmed he had hurt them.” He was accused of giving Elizabeth Hubbard
a fit; of hurting Benjamin Gold; of bringing the book to these various
witnesses; of being frightened in the cowhouse and of threatening
suicide.[32]
On September 16’ “just as the Autumn leaves were beginning to glorify the
earth,” he was laid upon the ground, bound hand and foot; stones were
piled upon him, till the tongue was pressed out of his mouth. The Sheriff
with his cane, forced it in again, when he was dying.[33] And he was the
first and last to die for this offense in New England.
In his account of this trial, in the “New England Tragedies,” the gentle
Longfellow, has made Cory thus explain to Richard Gardner, why he refused
to plead:
“I will not plead.
If I deny, I am condemned already,
In Courts where ghosts appear as witnesses,
And swear men’s lives away—If I confess,
Then I confess a lie, to buy a life,
Which is not life, but only death in life.
I will not bear false witness against any,
Nor even against myself, whom I count least.”
The Sheriff then calls him to his punishment and Cory answers him:
“I come.
Here is my body. Ye may torture it,
But the immortal soul, ye cannot crush.”
Gloyd wonders if
“The old man will die and will not plead,”
and while thus wondering, arrives too late to view the test of martyrdom.
In Scene IV. of this tragedy, based upon this sad miscarriage of justice
in this New England case, the field near the graveyard is presented, with
Cory lying dead, with a great stone upon his breast.
Hathorn and Mather are introduced to the spectators and make a vain
attempt to explain and justify the deed and the former points to the dead
body of Cory as a horrible example of
“Those who deal in witchcraft and when questioned,
Refuse to plead their guilt or innocence
And stubbornly drag death upon themselves.”
But Mather, not satisfied with the proceeding, is thus made to deliver
himself:
“In a land like this,
Spangled with churches, Evangelical,
Inwrapped in our salvation, must we seek,
In mouldering statute-books of English courts,
Some old, forgotten Law, to do such deeds?
Those who lie buried in the Potter’s field,
Will rise again, as surely as ourselves
That sleep in honored graves, with epitaphs,
And this poor man, whom we have made a victim,
Hereafter will be counted as a martyr.”[34]
The _peine forte et dure_, as an institution of the English courts,
continued in effect, as a part of the criminal procedure of the kingdom,
until the year 1772, when the statute 12 George III., c. 20, virtually
abolished the punishment of pressing prisoners to death for standing
mute, when called upon to plead.
This statute declared that any person who should stand mute and refuse
to plead, when arraigned for felony or piracy, should be convicted, and
suffer judgment and sentence to be rendered against him, the same as if
he had been regularly convicted, by verdict or confession.
This procedure was again changed in England, in the year 1827 by the
more humane rule, that upon a failure or refusal of the defendant in a
felony charge to plead to the indictment, “a plea of not guilty should be
entered for the person accused,”[35] and he was thus given the benefit of
the legal presumption of innocence, which the criminal law surrounds all
prisoners with and he could be convicted and sentenced for the offense
charged in the indictment only after this presumption of innocence had
been overcome by the proof of his guilt, even though he stood mute and
refused to enter his formal plea.
This latter statute, in substance, has been adopted in most of the
United States and the cases arising under these statutes illustrate the
beneficence of the new procedure.
In Commonwealth vs. Braley,[36] in the year 1804, the defendant stood
mute and refused to plead and the court proceeded to empanel a jury to
try the defendant to ascertain if he stood mute wilfully, or by Act of
God, just as the court proceeded when the _peine forte et dure_ was
in force and on the return of the verdict that the defendant wilfully
refused to plead, the court remanded him to jail.
In Commonwealth vs. Moore,[37] in the year 1812, the defendant was
arraigned upon a charge of larceny and stood mute and upon a finding
of the jury that he stood mute through wilfullness, the court proceeded
to sentence him, just as if he had been regularly convicted, evidently
proceeding under the statute, 12 George III., c. 20.
In State vs. Hare, in the year 1818, in Maryland, the prisoner stood
mute and refused to plead, but the court entered up a plea of not guilty
for him and proceeded to try him, just as if he had himself entered his
formal plea. This enlightened procedure was adopted by Congress at the
beginning of the past century, in all cases where prisoners stood mute.
It was provided by Act of Congress, March 3’, 1825, that
“If any person, upon his or her arraignment, upon any
indictment, before any court of the United States, for any
offense not capital, shall stand mute or will not answer or
plead to such indictment, the court shall notwithstanding,
proceed to the trial of the person so standing mute, or
refusing to answer or plead, as if he or she had pleaded not
guilty, and, upon a verdict being returned by the jury, may
proceed to render judgment accordingly.”[38]
Since the enactment of this federal statute, similar acts have been
adopted in most of the United States and the practice now quite generally
obtains of entering a formal plea of not guilty, whenever the prisoner
stands mute, for any reason and the trial proceeds just as if the
defendant had himself entered his plea.[39]
The punishment for standing mute and refusing to plead, as one of the
cruel and extreme methods of procedure of the olden times, has attracted
the attention of the poets and writers in the English language.
Shakespeare makes frequent reference to this punishment and always in
such manner as to demonstrate that he was thoroughly familiar with the
nature and object of the procedure governing the infliction of the
penalty upon those who obstinately stood mute, when called upon to plead
to indictments for felonies.
Thus, in “Much Ado About Nothing” he makes Hero say to Ursula, when
speaking of Beatrice, in the Orchard of Leonato:[40]
“_Hero._ No, not to be so odd and from all fashions
As Beatrice is, cannot be commendable;
But who dare tell her so? If I should speak,
She would mock me into air; O, she would laugh me
Out of myself, press me to death with wit.”[41]
In “Measure for Measure,” when the Duke adjudged that Lucio should marry
the woman he had wronged, the latter replied:
“_Lucio._ Marrying a punk, my lord, is pressing to death,
whipping and hanging.”[42]
In Richard II., on overhearing the talk of the Gardener and servant, in
the Duke of York’s garden, concerning the King, the Queen soliloquizes
“_Queen._ O, I am pressed to death through want of speaking,”[43]
as if she were really in the dock and actually conditioned so that she
would suffer the customary penalty for standing mute.
Pandarus also refers to the _peine forte et dure_, in Troilus and
Cressida, in advising them to “press” the bed to death because it stands
mute as to their “pretty encounters” thereon:
“_Pan._ ... I will show you a chamber and a bed,
Which bed, because it shall not speak of your pretty encounters,
Press it to death: away.”[44]
By a study of the old cases, decided when the _peine forte et dure_
obtained, the development of the law on this subject, can best be
understood, for like landmarks, pointing the devious course of the
tortuous procedure that obtained for centuries, before the evolution
of the science, to the point where it was able to preserve the just
rights of the individual, consistently with the demands of society, the
later cases evidence the gradual decline of the old, harsh punishment
for standing mute, and thus, with the abolition of this quandam formal
procedure, that was considered such a material part of the old criminal
law of England, the law itself has reached a higher plane, from which we
can look down upon the crudities and cruelties of the old system, with
pity for the multitudes who were subjected to its harsh rules and false
standards. And judging the future by the past, we can indulge the hope
that many of our own formal procedures will be amended and abolished,
to the end that unjust results and delays may be minimized and the
attainment of just ideals promoted.
The science of the law should keep pace with the advance of the student
of philosophy. The law should ever stand aloof—even as a just parent—from
any punishment prompted solely through the mad power of might. When it
has attempted to inflict punishment unjustly, the causes and effects,
the advantages, if any and the disadvantage of such procedure, should be
thoroughly scrutinized. Laws are man-made, in popular governments and the
laws should be improved for the benefit of the people.
We have seen that for centuries, upon the obstinate refusal of a prisoner
charged with felony, to enter his plea, the inhuman judgments of the
courts—established for the administration of justice—were that he should
be literally “pressed to death,” regardless of his guilt or innocence of
the charge that he was called upon to answer.
With the passing of this horrible institution—as with others of the past
centuries—we can perhaps congratulate ourselves, that with the evolution
of the institutions of our civilization, humanity has generally triumphed
over inhumanity and the mistakes of our ancestors, although most
dearly bought, furnish a lasting object lesson for present and future
generations. Every generation, however, has its follies and mistakes and
nonsense is not confined wholly to the past ages, but with the errors of
the past before us, we ought to avoid the same mistakes that it took such
suffering and experience to correct.
However unwise and unjust the standards of our ancestors may have been,
which made possible the wholesale legal murder of thousands of human
beings, who, for different reasons, defied the fetish and barbarous
custom that developed the cruel institution, _peine forte et dure_,
this institution, like many others of the past, ought to warn us, like
a beacon light, of the dangerous shoals and reefs, which the ship of
state should be safely piloted around. But our own procedure contains
many incongruities and erroneous standards, that should be corrected,
and while priding ourselves upon the fact that nothing so inhuman as
“pressing to death,” obtains today, we are still guilty of many “crimes
against criminals,” which succeeding ages, in the perfection of the
science of jurisprudence, will no doubt regard in much the same light as
we of the present age look upon the cruel punishment, _peine forte et
dure_.
FOOTNOTES:
[1] The terms are pronounced pān fōrt ā dūr.
[2] II. Reeve’s History English Law, p. 423.
[3] Coke, 2 Inst. 178, 179; Hale’s P. C. vol. ii., 322.
“He was to be laid down, naked, upon the ground, on his back, his feet
and head and loins covered, his arms and legs drawn apart, by cords, and
as much weight of iron or stone as he could bear, was placed upon his
chest.” This punishment was called also, “pressing to death.” Bouvier’s
Dictionary; II. Reeve’s History English Law, 134; 4 Sh. Bl. Comm. 324;
Britton, ch. 4 fol. ii; Fleta, lib. I., 34, sec. 33.
[4] Coke, Litt. 130a, 391; 6 Coke, 63a, 63b; I. Bishop’s Crim. Law, 641.
[5] II. Essays in Anglo-American Legal History, 392, 396, 486, 488.
There is no doubt but that for a long time after the year 1215, the law
did not know what to do with a man who stood mute and refused to plead
and the _peine forte et dure_ was an institution slowly and painfully
evolved from the customs of the past. II. Pollock and Maitland’s History
English Law, p. 650.
[6] II. Reeve’s History English Law, p. 423; Stat. West. l. c. 12.
[7] Statute West, l. c. 12; II. Reeve’s History English Law, p. 423.
[8] 2 Inst. 178, 179.
[9] II. Reeve’s History English Law, p. 424.
[10] Britton, fol. 11, c. iv; Fleta, lib. l. c. 29, sec. 33.
[11] III. Reeve’s History English Law, 439.
[12] Leges Henri, 31, sec. 5; Foedera, i, 154; Palgrave, Commonwealth,
207; Thayer, Harvard Law Review, V., p. 265; II. Pollock and Maitland’s
History English Law, p. 650.
[13] II. Pollock and Maitland’s History English Law, p. 650.
[14] II. Pollock and Maitland’s History English Law, p. 651.
[15] Select Pleas of Crown, pl. 153, 157; Hale’s Pl. Cr. ii, 322.
[16] Note Book, pl. 136.
[17] Bracton, fol. 142b, 143b.
[18] Year Book 30, I. Edward I., 511, 503, 531; Britton, i, 26; Fleta, p.
51; II. Pollock and Maitland’s History English Law, p. 652.
[19] Watt’s “The Law’s Lumber Room.”
During the reign of Henry VII., we find two felons, who had been taken
from sanctuary, at Southwark, on being arraigned before Sir Thomas
Frowike urged their plea of sanctuary, which was overruled, and, on being
commanded to plead to the felonies, and refusing, they were peremptorily
ordered to be taken back to the jail and there placed upon the bare
ground, and that more weight should be placed upon them than they could
stand and they be given only bread and water, until they die; in short,
that they be literally _pressed to death_, or suffer the terrible _peine
forte et dure_. (21 Henry VII., Keilway, 70; IV. Reeve’s History English
Law, Finlason’s note, p. 254.)
[20] Law Notes, May, 1910, p. 32; Watt’s “The Law’s Lumber Room.”
[21] Surtee’s History of Durham, vol. iii, p. 271.
[22] Stow’s Chronicle.
[23] Watt’s “The Law’s Lumber Room.”
[24] Law Notes for May, 1910, p. 31; Watt’s “The Law’s Lumber Room.”
According to Rushworth, when John Felton was arraigned for the
assassination of the Duke of Buckingham, in November, 1628, the Privy
Council debated the question of their right to place the prisoner on the
rack. It was finally decided that:
“Torture was not, with one exception, permitted at all, and in that one
exception, it was permitted neither as a punishment nor as a means of
getting evidence, but as a _persuasion_, to induce a man charged with
felony, to put himself upon his trial.”
Vol. 44, Chamber’s Journal, pt. Jan.-June, 1867, p. 373.
[25] Watt’s “The Laws Lumber Room”; Law Notes, for May, 1910, p. 33.
[26] Stowe’s Chronicle.
[27] _Ante idem._
[28] Watt’s “The Law’s Lumber Room.”
[29] Watt’s “The Law’s Lumber Room.”
[30] XI Inter. Enc. _Sub. Nom._ _Peine forte et dure._
[31] Washburn, Jud. History, 142; I. Chandler, Cr. Trials, 122.
[32] “Wonders of the Invisible World,” by Robt. Calef (1828), pp. 329,
333.
[33] “The Spirits in 1692,” Putnam’s Magazine, for January and June,
1856, No. 7, p. 509.
[34] Longfellow’s “New England Tragedies.”
Tradition has it that Cory was pressed to death in an open field, between
the Howard street burial ground and Brown street, in Salem.
Nevins, “Witchcraft in Salem Village, in 1692,” p. 107.
[35] 7 and 8 George III., c. 28.
[36] I. Mass. 103.
[37] 9 Mass. 402.
[38] 3 Story, U. S. Laws, 2002 Sec. 14.
[39] Fernandez vs. State, 7 Ala. 511; People vs. Thompson, 4 Cal. 238;
Johnson vs. People, 22 Ill. 314; State vs. McCombs, 13 Iowa, 426;
Commonwealth vs. Lannon, 95 Mass. 563, holding that the old rule in this
state was changed by statute; Thomas vs. State, 6 Mo. 457; Link vs.
State, 50 Tenn. (3 Heisk.) 252.
[40] Act III., Scene I.
[41] White’s “Law in Shakespeare,” sec. 40, p. 67.
[42] Measure for Measure, Act V., Scene I.
[43] Richard II., Act III., Scene IV.
[44] Troilus and Cressida, Act III., Scene II.
CHAPTER VII.
WAGER OF LAW.
Wager of law, in ancient England, was the practice whereby the defendant
was allowed to make oath denying the charge of the complainant and
supporting his oath by the oaths of a certain number of his friends or
neighbors.[1]
The term _wager of law_, comes from the Roman law _vadiatio legis_, from
the defendant being put in pledges (_vadios_), to make oath on the day
appointed.[2]
The practice is traceable to the Mosaic law which provided that:
“If a man deliver unto his neighbor an ass, or an ox, or a
sheep, or any beast, to keep; and it die, or be hurt, or
driven away, no man seeing it; then shall an oath of the Lord
be between them both, that he hath not put his hands unto his
neighbors’ goods; and the owner of it shall accept thereof, and
he shall not make it good.”[3]
Under the Mosaic law, the rule of practice which now obtains in criminal
cases, that the good character or reputation of the defendant is always
proper for him to offer, in his own defense, upon the issue of the
likelihood of his commission of a crime, was extended to include his
right to actually acquit himself of the debt or other cause of action by
his own oath, for if he would absolutely swear himself not chargeable and
was a person of good reputation, he stood acquitted of the charge, in
order to prevent an innocent man from being overcome by a multitude of
false witnesses.
This method of procedure, or similar practices obtained in ancient
Babylon,[4] among the Romans and the northern nations, adjacent to the
Roman Empire, as well as among the ancient Israelites.[5]
He who waged his law, under the old Saxon procedure, brought with him,
into court, eleven of his neighbors, for by the constitution entered into
as a league between Alfred and Guthrun, the Dane, a man’s credit, in a
court of law, depended upon his reputation among his neighbors, touching
his veracity.
The defendant who pleaded _nil debit_, or denied the charge against him,
usually concluded his answer with the plea containing the formula:
“And this he is ready to defend against him, the said A. B.
and his suit, as the court of our Lord, the King, shall here
consider,” _etc._
He was then placed under surety to _wage his law_, on a day appointed by
the judge and on the day named the defendant, in open court, took his
oath, which was also confirmed by the oaths of eleven of his neighbors,
called compurgators.
The defendant stood at the end of the bar and was solemnly admonished by
the judge of the nature and danger of a false oath and if he persisted,
he repeated an oath like the following:
“Hear this, ye justices, that I do not owe unto A. B. the sum
of ten pounds, nor any penny thereof, in manner and form as
the said A. B. hath declared against me, so help me God.”[6]
And thereupon his eleven compurgators avowed, upon their oaths, that they
believed, in their consciences, that he saith the truth.
The oath, therefore, of the defendant, himself, was _de fidelitate_, or
on his fidelity, and the eleven compurgators testified _de credulitate_
or upon their belief in his integrity.[7]
These oaths had the legal effect of a verdict for the defendant, in all
actions of debt, on a simple contract, or in actions of detinue, but the
defense was not allowed to persons who did not enjoy a good reputation
among their neighbors.
The compurgators acted rather in the capacity of jurymen than as
witnesses, for they swore to their belief, not to what they actually
knew. In other words, when the accused made oath of his innocence or
denied the charge filed against him, they swore that they believed he
was swearing the truth. Yet they differed from jurymen in many important
particulars. The jury was summoned by a public officer and took an oath
to tell the truth, whatever the truth might be—for jurymen then did not
sit in trial of issues as today—while the oath helper—or compurgator,
merely took an oath to testify to the truth of his principal’s oath.[8]
There is authority for the proposition that in the earliest times, the
oath-helpers were necessarily kinsmen of the defendant.[9] The only
obligation recognized by a defendant in either a civil or criminal case
was to the injured party and no responsibility was predicated upon a duty
owing to the state or to society at large. With the family as a unit,
the person charged with a crime could summon his family to repulse an
armed attack by the injured person and so he took them with him to the
court, to defend him by their oaths.[10] When a person was accused of
a crime sufficient to result in a blood-feud, his kinsmen were vitally
interested in his acquittal and it is but natural that they proffered
their help as oath-helpers for him, but in due course of time, the
relatives alone were not required and the compurgators rather assumed the
character of disinterested “character witnesses,” such as we see today,
in all criminal cases, except that instead of swearing merely to the good
reputation of the defendant, these compurgators made oath of their firm
belief in his oath of innocence of the charge filed against him or of the
cause of action set up by the injured party.[11]
By the laws of Wihtraed,[12] in the seventh century, the king or a
bishop could rebut an accusation by his own simple asservation, and
the thane or priest by the simple oath, while the laity generally were
required to undergo the formal procedure of waging their law by the
regular number of compurgators.
Mr. Reeves, in his History of English Law, says that Glanville does not
mention the wager of law, as a mode of proof for the defendant in civil
suits,[13] but in this the author must have meant to limit the statement
to defenses only, for Glanville expressly describes the proceeding by the
tenant, wherein he observes:
“If he should deny all the summonses, he shall, as to each of
them individually, corroborate his denial with the oaths of
twelve. Should it happen on the day appointed that either of
the compurgators fail, or should the person of either of them
be justly excepted to, and the vacancy occasioned by either of
these circumstances not filled up, the tenant shall, on account
of his default, immediately lose his seisin. But, if the tenant
thus completely disprove the summonses, he shall, on the same
day, answer to the action.”[14]
According to Sir Edward Coke, any one who waged his law, in a court of
record, prior to _Magna Charta_, in England, was required to bring with
him _Fideles Testes_,[15] and this learned author intimates that the
number of compurgators was eleven, besides the principal,[16] while the
author of “_Les Termes de la Ley_,” in describing the same ceremony,
expressly states that the number of compurgators was twelve.[17]
Bracton advises us that it was not necessary that the compurgators should
be of the same rank as the principal, provided they were trustworthy
citizens,[18] and, when treating of the wager of law, in actions by
tenants, he states that the land was not to be taken out of the tenant’s
possession before the tenant had waged his law, nor if he failed in
waging it.[19] And he states that the tenant could not wage his law by
means of an attorney, constituted for that purpose, but was allowed to
urge this plea, only by and through himself, personally.[20]
In Bracton’s day, wager of law was the normal mode of defense and it
was then the ordinary procedure for establishing that one had never
been lawfully summoned to appear in court;[21] that a defendant had
not deprived a guardian of the lawful possession of his ward;[22] that
the defendant was not guilty of a breach of a covenant;[23] that the
defendant had not wrongfully detained or distrained the plaintiff’s
cattle or other animals,[24] and during this period it was even allowed
by way of defense in an action of trespass.[25]
According to Bracton, however, compurgation was not allowed to dispute
evidence of offenses which were apparent to the senses, such as waste,
which could be observed, as a physical condition, by any man, for if
compurgation were allowed in such cases, the oath of compurgators would
be allowed to overcome the evidence of our senses, which would place
a premium on perjury and destroy the best evidence by mere secondary
proof.[26]
The wager of law was not confined entirely to the defendant, however, for
according to this author, if the defendant set up an affirmative defense,
the plaintiff, by way of reply, was allowed to deny the affirmative
defense and to establish his avoidance of the special defense pleaded by
the aid of oath-helpers.[27]
During the reign of Edward III., the right of a defendant to wage his law,
was guaranteed in all cases where the right existed in the time of Edward
I., the object of the statute being that “many people were grieved and
attached by their bodies in the city of London, at the suit of citizens,
surmising that they were debtors, and could be proved so by their papers,
though they had no deed or tally to produce them,” it was therefore
enacted that “every man should be received _to his law_, by people of
his condition against such papers, and the creditor should not put the
party to plead to the inquest unless he chose,”[28] so the wager of law
was thus preserved to the citizens of London, against mere papers, or
verbal testimony as firmly as it was previously practiced in the common
law courts.[29] But it was provided by statute, during the same reign,
that the fines payable before the justices, should be in the presence of
the pledges, in all cases, civil or criminal, and the pledges were to be
advised of the sum of the fine, before they departed.[30]
The law wager did not seem to be settled so securely that there was no
doubt left, of the cases in which it would lie and those wherein it could
not be invoked, in this reign, however, for while a defendant was denied
wager of law, against his written obligation,[31] he was allowed to wage
his law, in a suit on a deed, by the plea of non-summons, in the same
manner that such plea had long been used.[32] It was allowed against a
receipt, alleged to be by the hand of another than the defendant,[33] and
in detinue of charters it was allowed,[34] although the charters related
to the freehold and ought to be equally as binding upon a defendant as an
obligation creating an action of debt.
Wager of law was allowed in all cases where voluntary credit had been
extended to the defendant, upon the theory that by giving him credit the
plaintiff had estopped himself from denying that he was a man of good
reputation, but wager of law was not permitted in charges created against
the defendant by the law, for no man was allowed to thus swear away an
obligation imposed by the law of the land.[35]
It was denied in cases of contempt, trespass, fraud or deceit, or for
damages for any injury with force; executors and administrators were
not allowed, upon grounds of public policy, to deny under oath the
obligations of their testators, since no man could safely wage law of
another’s contracts; the king had certain prerogatives, which prevented
the wager of law, in actions by him, as all wagers of law naturally
reflected upon the honesty of the plaintiff, so wager did not obtain in
actions by the king.[36]
And since the wager of law only obtained in favor of those who bore a
good reputation for veracity, one who had been outlawed, or attainted for
any felony, or one who had become infamous, or who had pronounced the
horrible word, _craven_, in a trial by battle, was denied his wager of
law.[37]
And under the old practice, since infants, or those under twenty-one
years were not admitted to take oaths, they were also denied the wager of
law, but a married woman was allowed the defense, when sued jointly with
her husband and it extended in favor of an alien, who was to be sworn in
his own language.[38]
In the thirteenth and fourteenth centuries compurgators were allowed,
even in the most serious charges of felony, in England, on the part of
a defendant. According to the London custom, in the “great law” used
in murder cases, the defendant was required to swear six times, with
six compurgators for each oath; in the “middle law,” used in charges of
mayhem, three oaths, each backed by six oath-helpers, satisfied the law,
and in “the third law,” used in the smaller offenses, a single oath,
corroborated by six helpers, satisfied the law.[39]
In course of time the “great law” was found to be so onerous that the
rule requiring six separate compurgators to as many separate oaths by the
defendant was relaxed, so as to allow him to make his compurgation by one
oath, supported by thirty-six helpers, but if any one of these failed to
support his oath, he was hanged.[40]
And by the last of the fourteenth century even when charged with the
capital crime of murder, a citizen liable under the “great law,”
which formerly required him to make his compurgation by thirty-six
oath-helpers, was allowed to either make his compurgation in this manner,
or, at his election, to go to trial before a jury of twelve men, for by
this period the trial by jury was beginning to take its place as one
of the fixed institutions in the administration of the criminal law of
England.[41]
The trial by oath-helpers, even in murder cases, was not speedily
superceded by the trial by jury, however, for as late as the fifteenth
century, according to Palgrave, purgation with thirty-six oath-helpers,
was allowed at Winchelsea and in other jurisdictions subject to the
English common law.[42]
By the time of Henry VI., we find the cases in which wager of law was
allowed still open to much discussion. It was recognized in actions
of debt and detinue[43] and in the action of account, it came to be
the custom for the justices to examine the attorney for the plaintiff
and other persons and to allow or refuse the wager of law to the
defendant,[44] accordingly as the account was found to be an account
stated in the presence of auditors, in which case it was not allowed,
or an account not taken in the presence of auditors, where the wager
was held to obtain.[45] The theory of denying the wager to cases
where an account was had in the presence of auditors was that such an
account arose to the dignity of an obligation admitted before competent
judges.[46]
A defendant sued upon a debt for board and lodging was denied his
law,[47] but Justices Priscott and Needham, decided, near the end of the
reign of Henry VI. that wager of law would lie in an action for board
and lodging, if the plaintiff had it in his power to furnish the board
or lodging at his own volition and not upon compulsion,[48] but if the
defendant had been imprisoned in the Tower and the board and lodging
was furnished by force of the obligation of common humanity, this would
so far deprive the plaintiff of his option of furnishing the board and
lodging, as to make him a creditor of such merit as to deprive the
defendant of his wager of law.[49]
Where persons were compelled to serve by the statute of laborers, such
as plowmen, shepherds, and all servants of husbandry, in an action for
wages, the defendant was not allowed his wager of law, because the
plaintiff had no option to refuse the service, but in cases where the
service was not compulsory, wager of law would lie.[50]
And upon the theory that an attorney could be compelled by the judges of
the common pleas court to render faithful service to his client and was
not allowed to refuse such service, we find that Chief Justice Fortescue
decided, during this reign, that in an action by an attorney for services
rendered in such a court, no wager of law would lie on the part of
defendant.[51]
By the middle of the fifteenth century, in England, the wager of law in
criminal cases had begun to fall into disuse, for the method followed
in such trials, at Westminster, was such that professional oath-helpers
were customarily used and such professional swearers necessarily debased
the wager of law in criminal cases.[52] And in the courts of the country
districts it got to be a very easy matter for a citizen of bad repute to
produce his oath-helpers, and his neighbors were afraid to negative the
oaths of men who were frequently too desperate to thus antagonize,[53]
and this led to a gradual preference for the trial by jury, in criminal
cases, both on the part of the person accused of crime and by the
general public, who came to regard the wager of law, in such cases, with
odium.[54]
Long before its repeal, by statute, the old defense had fallen into
disuse, and in 1833, by 3 & 4 William IV.,[55] the wager of law was
finally abolished in England, and compurgation in the ecclesiastical
courts was abolished during the reign of Queen Elizabeth.
While this irrational procedure obtained in England, the accused in the
gravest criminal charges, could avoid punishment, regardless of the
notorious character of his crime, without being confronted with evidence
of his guilt, if he was able to find compurgators who would testify to
their belief in his innocence.[56] And while he could not invoke this
procedure in a case of theft, if the stolen goods were found upon his
person, or he had been previously convicted, in all other offenses, he
was at liberty to thus acquit himself, by means of his oath-helpers,[57]
and this favorable procedure for the criminals continued long after
its abuses were set forth and denounced in the Council of Bale,[58]
in municipal and ecclesiastical courts, although in the king’s court,
in criminal cases of the graver sort compurgation is said to have
disappeared in consequence of what has been styled “the implied
prohibition” of the Assize of Clarendon, in 1166.[59] But the statute of
Elizabeth (38 Elizabeth, 3, 5), shows that the wager was in common use in
1596, in actions of debt upon simple contracts.[60]
Turning to some of the instances where the oaths of compurgators, or the
wager of law, as known under the old procedure, was utilized to acquit
the accused of charges, either in the ecclesiastical or lay courts of
old England, we find, in the sixth century, that Pope Pelagius I., when
confronted with charges that he was concerned in the troubles which
drove his predecessor into exile, exculpated himself, by his oath, taken
in the pulpit, while holding the crucifix above his head, denying any
implication in the affairs that had resulted in the disgrace of his
predecessor.[61]
And when Gregory of Tours was arraigned for the use of words which
seriously reflected upon Fredegonda, before a Council of Bishops, it was
decided that he should acquit himself of the charge by oaths upon three
separate altars, which in due time, the accused performed to the complete
satisfaction of the Council.[62]
In the dispute which arose, in 824, between Hubert, bishop of Worcester,
and the abbot of Berkeley, in regard to the monastery of Westbury,
the issue was settled by the oath of bishop Hubert, supported by
fifty priests, ten deacons and a hundred and fifty other clerks and
ecclesiastics.[63]
Again, the bishop of Trent, when accused of simony, was ordered by Pope
Innocent II. to clear himself with the oaths of two bishops and three
abbots or monks, a course that was followed by the accused, to the
complete satisfaction of his superiors in the church.[64]
Compurgation was, indeed, for many centuries the common procedure whereby
Churchmen, when accused of simony, or other irregularities, cleared
themselves of the charges filed against them, and it seemed almost
invariably an easy task to find other brothers of the order willing
to stand by the accused and render him the assistance of an oath in
the belief of his innocence, perhaps because of the frequency of such
charges and the uncertainty of the future and that necessity might place
the compurgators in a position where they might desire the reciprocal
service, rendered to their unfortunate companion.[65]
In the thirteenth century the earl of Warenne, or his men, slew Alan de
la Zouche, in Westminster Hall, in the presence of the king’s justices.
He was allowed to escape with his compurgators’ aid, according to
the rule then obtaining, by his own oath, supported by the oaths of
twenty-five knights, that the deed was not done with malice aforethought,
or in contempt of the king, but under the heat of passion and under such
circumstances as to reduce the offense to simple manslaughter.[66]
In the Bedfordshire eyre, of the year 1202, in a prosecution under the
statute for selling beer under a false measure, the defendant when placed
upon her trial, claimed the right of compurgation and was ordered to
defend herself “twelve handed” and she met the demand of the court by the
offer of her compurgators.[67]
In April, 1435, Agnes Archer was indicted for the alleged murder of Alice
Colynbourgh, at Winchelsea, whom she was charged with having stabbed five
times in the throat, with a knife. The defendant, when arraigned for this
crime entered a plea of not guilty, by declaring, as the report of the
case records it: “I am not guilty of thoo dedys, ne noon of hem, God help
me so.” And when interrogated by the Judge as to how she would acquit
herself of this charge, she replied: “By God and by my neighbors of this
town,” so the charge being one which brought the case within the rule
of the “Great Law,” she was required to acquit herself by the oaths of
thirty-six compurgators.[68]
In 1440, in a suit for board and lodging furnished the defendant by the
plaintiff, one Counselor, Yelverton, for the plaintiff, contended that
the defendant was not entitled to his wager of law, in this action, but
the justices held that wager of law would lie in a suit for board and
lodging.[69]
During the reign of Henry VI., in the year 1454, quite a memorable legal
battle was waged concerning the right of a defendant, in a real action,
to wage his law upon a plea of non-summons. The plaintiff demurred to
this plea and the justices were divided upon the propriety of recognizing
the plea. Chief Justice Priscot and his associates, Danvers and Danby,
overruled the demurrer to this plea, holding that the defendant could
urge his wager of law in a real action, while admitting that the practice
had been otherwise. The minority of the court, however, dissented from
this view, much as the minority frequently dissent in modern times and
Moile and Ayshton earnestly pressed their views upon the majority of the
court, for the reason that, “All our law is directed by usage or statute;
it has been used that no one wages his law in trespass, and the contrary
in debt; so that we should adjudge according to the use.”[70]
In the year 1492, one Sebastian Giglis complained to the Chancellor
against Robert Welby, that complainant had persuaded a third party to
advance a certain sum of money to Welby, who promised to repay the loan
and then when he was sued therefor, by the creditor, he had waged his law
and the result was that complainant had been compelled to pay the loan,
so advanced, at his instance, to Welby. In his answer to this plea, Welby
admitted the loan, but set up that he had procured the money for King
Richard III., who had received and used the money and that the receipt
given was a mere memorandum of the transaction, but not under seal,
and he attempted to wage his law to this debt. The court refused to
recognize the wager of law in this case, but held that in as much as the
plaintiff had paid the debt for money had and received by the defendant,
and since the defendant admitted the debt, and the receipt of the money,
it was immaterial that he had given it to another, and adjudged that he
should pay the plaintiff, and that no wager of law would lie in such a
case.[71]
In the year 1587 the Star Chamber refused to entertain a criminal charge
of perjury against a man who was charged with having perjured himself
in waging his law, in a prior proceeding. The Lord Chancellor rather
dissented from the decision of the majority of the judges and asked if
the effect of the wager, based on perjury was to discharge the debt sued
for. The judges answered that it was, Manwood, C. B., maintaining that
it was because of the plaintiff’s folly, in sueing for debt, rather than
upon an assumpsit, wherein wager of law would not lie.[72]
In his report of Slade’s case, in 1602, Sir Edward Coke remarked that
the court would not allow a man to wage his law, until the court
had admonished both the principal and the compurgators and upon due
examination as to their qualifications and the merits of the cause,
in order to ascertain if the case was one wherein wager of law was
allowable.[73]
Several cases came before Chief Justice Holt, during the latter part of
the seventeenth century and some of the cases, which have been noted,
will be briefly referred to.
In the Company of Glazier’s Case, which arose in 1699, the Company sued
in an action of debt and the defendant waged his law. Counselor Northey
appeared for the Company and when the defendant appeared with his
compurgators, he insisted that if he swore falsely, the court did not
have to receive his wager of law, but to this contention, Chief Justice
Holt replied: “We can admonish him, but if he will stand by his law, we
cannot hinder it, seeing it is a method the law allows.” Plaintiff’s
counsel then insisted that such a holding would be a dangerous precedent,
because it would have the legal effect of compelling litigants sueing in
debt, to extend the practice of sueing upon an assumpsit still further,
but the doughty Chief Justice replied to this argument that “We will
carry them no further,” so the wager of law was received, because it was
a “method the law allows.”[74]
The Chief Justice practically reversed his holding in the Company of
Glazier’s Case, two years later, however, for in exactly the same kind
of an action of debt, arising on a by-law, in London vs. Wood, the court
refused to entertain the defendant’s plea of wager of law, remarking that
the plaintiff’s counsel in the Company of Glazier’s Case (Northey), had
yielded too much—although he seemed to do all that an earnest counsel
can do, to urge his plea and then except to the court’s action, when
it is overruled—in characterizing that decision, the court observing
that “It was a gudgeon swallowed and so it passed without observation,”
meaning that a bad precedent had been recorded because not strenuously
enough objected to.[75]
In this case, the action was on a city by-law, for the penalty provided
for the refusal of the defendant to serve as sheriff. According to the
custom of London, the defendant offered to wage his law, with six good
and reputable compurgators, but to this plea the plaintiff demurred, and
in considering the issue of law, on the question of the right of the
defendant to wage his law, in such an action, Baron Hatsell reviewed the
older decisions bearing upon the defense of wager of law and maintained
that it would lie in five certain cases only, “first, in debt on simple
contract, which is the common case; secondly, in debt upon an award, upon
a parole submission; thirdly, in an account against a receiver; fourthly,
in detinue, and fifthly, in an amercement in a court baron, or other
inferior court, not of record.”
Lord Holt repudiated the reasoning which limited the Wager to any
specific classes of actions, but maintained that the wager could only be
made to depend upon other distinctions, growing out of the very nature of
the cause of action and not the mere class to which it might belong.
In the course of his opinion in this celebrated case, he observed:
“This is the right difference, and not that which is made in
the actions, viz., that it lies in one sort of action and not
in another; but the true difference is when it is grounded on
the defendant’s wrong; ... for if debt be brought, and the
foundation of the action is the wrong of the defendant, wager
of law will not lie.... The secrecy of the contract which
raises the debt is the reason of the wager of law; but if the
debt arises from a contract that is notorious, there shall be
no wager of law.”[76]
The great Chief Justice was far too independent to be bound by the dictum
of some previous case, which did not commend itself to him, according to
the touchstone of reason or logic. He had a naturally inquiring mind and
sought to go deep into the mysteries of things. Refused credence to the
absurd or allegiance to an arrogant authority and was too broad to be
bound by mere doctrine, but of course could only judge according to the
standards of his time.
This decision marks the trend of judicial thought of the period to
further limit and deny the wager of law, because of the fact that it
was becoming to be considered contrary to the prevalent sense of right
of the great mass of citizenship, to permit one who was sufficiently
elastic in his conscience, to swear away the debt or obligation of
another, just as formerly it had come to be regarded as wrong to permit
the accused in a criminal case, to set aside the public law which he had
violated, by means of the oaths of compurgators.
During the age of Bracton, the defendant, who was incarcerated in jail
and attempted to deny the obligation for his board and lodging, by the
wager of law, was held incompetent to wage his law, in such a case,
because it was counter to reason to permit one to be thus defeated of
an obligation which he had recognized, based upon feelings of common
humanity.
In this opinion of Lord Hort, it was counter to his idea of right, in
the case of London vs. Wood,[77] to permit the wager of law, to avoid
an obligation which was not merely secret, but notorious and where the
recognition of the right to wage law, would result in a wrong upon the
other party. The real reason for this limitation of the right, however,
was that the procedure itself was wrong and the common sense of the
nation was becoming aware of the fact and thus the courts for one reason
or another, reached the conclusion that this or that case was not one
wherein the right could be recognized, when, as a matter of fact, with
the growing popularity of the right of trial by jury, this old procedure
was eternally at war, since the former institution was based upon the
disinterested judgment of impartial men, who were assembled to carefully
weigh the issues and pass judgment according to the right, whereas, in
the other procedure interested men, through the influence of friendship
or other ties, were led to approve the course of a neighbor or a friend,
however wrong his object might be, and assist him by the corroboration of
his oath.
A century after this leading case of London vs. Wood,[78] however, in
which Lord Holt and Baron Hatsell differed as to the reasons why the
right to wage his law should be denied to the defendant in that case,
the right was recognized in England, although not expressly enforced by
the court. In 1805, the case of Barry vs. Robinson,[79] came before the
English Court of Common Pleas and the Counsel for the plaintiff in his
presentation of his client’s cause before the court, said: “If a man were
now to tender his wager of law, the court would refuse to allow it,” as
the counsel considered that this procedure was entirely obsolete at that
period. But the reporter of this case, however, advises us that to this
statement of counsel, the court demurred, or, in the language of the
Reporter, “This was denied by the court.”
The last recorded case wherein this old defense was attempted in England
was in the year 1824, in the case of King vs. Williams,[80] but as
Professor Thayer observes, in his “Older Modes of Trials,”[81] the wager
of law at this time was “a discredited stranger, ill considered.” This
was an action of debt, upon a simple contract, a case wherein the wager
of law clearly applied, under the old practice. The defendant pleaded
“_nil debet per legem_.” Counselor Langslow appeared for the defendant
and after filing this plea, asked the court to assign the number of
compurgators, for the reason that “The books leave it doubtful and this
species of defense is not often heard of now.” This requested rule,
to assign the number of compurgators to the defendant was refused by
Abbot, C. J., who observed: “The court will not give the defendant any
assistance in this matter. He must bring such number of compurgators
as he shall be advised are sufficient.” This, upon the theory that
everyone is presumed to know the law and that the court would not assist
a litigant in the perpetration of a wrongful act, although it might be
presented in the robe of regularity, was good enough. But according
to the ancient report of this case, even as Banquo’s ghost dispelled
the banqueters, when it was apparent to Macbeth’s fervid imagination,
so this recourse to the old obsolete wager of law, which allowed an
adversary with his friends to swear his opponent out of court, caused the
plaintiff in this case to abandon his cause, for we are advised that:
“The defendant prepared to bring eleven compurgators, but the plaintiff
abandoned the action.”[82]
Wager of law was several times invoked in the courts of the United States
and we find that the Supreme Court considered the nature and limitations
of the practice, as late as the year 1823, in the case of Childress,
plaintiff in error, vs. Emory and McCleur,[83] wherein Mr. Webster,
attorney for the plaintiff in error, in a suit on a note, urged before
the court that
“The wager of law has ceased, but many rules of practice and
pleading, founded upon it, have survived, and have become rules
of property, which cannot be now safely disturbed.... On the
English law, it is clear that debt cannot be maintained in this
case, as the testator might have _waged his law_, which none
can do who defend in a representative character; hence it is
that in the case of simple contracts, debt has been superceded
by the action of assumpsit, in which, as the testator could
not have _waged his law_, his executor is not deprived of any
defense which might have been used by the testator.”
To this argument, Mr. Hoffman, for the defendant in error, argued,
_contra_, that:
“In an action of debt by a merchant stranger, on any species
of simple contract, the defendant was not permitted to _wage
his law_. Even in those early times, the courts were strongly
disposed to rescue commercial transactions and dealings from
this species of trial, as may be seen by the intended operation
of the statute _de mercatoribus_, and particularly in the
case of foreign creditors, who, it was presumed, could not
so easily obtain the requisite evidence, of their claims as
resident merchants; and this may be seen in Godfrey and Dixon’s
case.”[84]
And Mr. Justice Story, in disposing of the case, _inter alia_ decided:
“Now, whatever may be said upon the question, whether the
wager of law was ever introduced into the common law of our
country by the emigration of our ancestors, it is perfectly
clear that it cannot, since the establishment of the state of
Tennessee, have had a legal existence in its jurisprudence.
The constitution of that state has expressly declared, that
the trial by jury shall remain inviolate; and the constitution
of the United States has also declared that in suits at
common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved.
Any attempt to set up the wager of law would be utterly
inconsistent with this acknowledged right. So that the wager of
law, if it ever had any legal existence in the United States,
is now completely abolished. If, then, we apply the rule of the
common law, to the present case, we shall arrive, necessarily,
at the conclusion, that the action of debt does lie against the
executor, because the testator could never have waged his law
in this case.”[85]
And so Mr. Webster’s defense of the _wager of law_, to this action on
this note, was held not to obtain, and he lost his case and his client
was adjudged to pay the note of his testator.
If true that but “a hair divides the false and true,” it is little wonder
that for centuries, in the struggle for right, immersed amid the darkness
of the dawn of judicial procedure, an occasional false note should come
down to us, through the centuries, from the pathetic drama wherein the
individual was made to assert his right, upon the mere _wager of law_,
instead of more accurate human standards to balance the scales of
justice. Judged by our own environment, it seems that the quarrels of the
Universe of old were gauged far too long by the erroneous standards used
in the vain pursuit of This and That, about which the citizens of the
past centuries endeavoured and disputed. And that with the institution of
trial by jury, brought into existence in the middle ages, the _wager of
law_ would have much sooner become an obsolete form of procedure.
But in the continuance of the drama of human life, this prided
institution of our twentieth century, may seem as crude and barbaric to
the spectators viewing the show from the vantage of subsequent centuries,
as this grotesque comedy of errors, known as the _wager of law_ now
appears to us, when we look back upon the judicial farce enacted by our
ancestors, in the uncertain procedure of Law Wager. They seemed to wander
“in and out, above, about, below,” yet ever missing the door which led
to the correct ideal. They labored under new and strange conditions,
however, and perplexed as they were with the many problems of the Human
and Divine and intermingling the processes and procedures of the lay and
ecclesiastical courts, as they did, it is perhaps to their credit that
the old tangles of the law were solved as creditably as they were.
However this may be, in the _Wager of Law_ we have but another “story
from of old,” in connection with the perpetual struggle for right, which
has followed man’s course down through the successive generations of the
past.
FOOTNOTES:
[1] Bouvier’s Law Dictionary.
[2] 3 Bl. Comm. 341; Coke, Litt. 295.
[3] Exodus, XXII., 10.
[4] John’s “Babylonian Laws,” etc.
[5] 3 Bl. Comm. 341; Spellman, L. b. 28, c. 13; Stiernh., _de jure
Sueon_, 1. l. c. 9.
The clergy were no doubt responsible for the establishment of the
practice in England, as it resembles the canonical purgation of the
clergy, as well as the _sacramentum decisionis_, of the civil law. (3 Bl.
Comm. 342.)
[6] 3 Bl. Comm. 343; Cap. & Wilk. LL Anglo-Saxons.
[7] Coke, Litt. 295; 3 Bl. Comm. 343.
As the effect of the compurgators oath was the same as a verdict, this
is the reason assigned by Coke and Blackstone, why eleven compurgators
were required, under the old codes. 3 Bl. Comm. 343; Coke, Litt. 295;
Glanville, Lib. l, c, 9x.
[8] I. Pollock and Maitland’s History English Law, p. 140.
[9] II. Pollock and Maitland’s History English Law, 600.
[10] Lea, “Superstition and Force,” (3 ed.) 35.
[11] II. Pollock and Maitland’s History English Law, 600.
It was also a custom for a long time, for the defendant to select his
compurgators from the nominees of the injured person, and a case is
recorded, as late as 1277, in Leicester, where this was required, but
it was soon abolished as too onerous a task for an accused person. II.
Pollock and Maitland’s History English Law, p. 636, note.
[12] Laws Wihtraed, cap. 16, 21; Lea, “Superstition and Force,” (3 ed.)
23.
[13] III. Reeve’s History English Law, 294.
[14] Glanville, Book I., chap. IX.
[15] Coke, Litt. 168b.
[16] Coke, Litt. 295a; 2 Inst., 44.
[17] _Les Termes de la Ley, ad voc. ley._
[18] Bracton, 410a.
[19] Bracton, 366a; 410a.
[20] _Ante idem._
[21] Bracton, fol. 366; Note Book, pl. 7, 1436.
[22] Note Book, pl. 731, 742.
[23] Note Book, pl. 396, 1097.
[24] Bracton, fol. 156; Note Book, pl. 477, 741.
[25] Somersetshire Pleas, pl. 572.
[26] Bracton, fol. 315b; Note Book, pl. 580.
[27] Note Book, pl. 184, 1574.
[28] 38 Edward III. st. l, c. v.
[29] III. Reeve’s History English Law, 184.
[30] 38 Edward III. st. l, c. 3.
[31] III. Reeve’s History English Law, 295.
[32] 28 Edward III. 100a; 29 Edward III., 44b; III. Reeve’s History
English Law, 295.
[33] 47 Edward III., 18; III. Reeve’s History English Law, 295.
[34] 38 Edward III., 7a.
[35] Coke, Litt. 295.
[36] 3 Bl. Comm. 346.
[37] Coke, Litt. 295.
[38] 3 Bl. Comm. 346.
Wager of law was never required, in England, but was allowed, as a
privilege to the defendant. Coke, Litt. 295.
[39] Mun. Gild. I., 56, 59, 90, 92; II. Pollock and Maitland’s History
English Law, p. 635.
[40] Mun. Gild. I., 57; II. Pollock and Maitland’s History English Law,
_supra_.
[41] Mun. Gild, ii, 321; II. Pollock and Maitland’s History English Law,
p. 636.
[42] Palgrave, English Commonwealth, pp. 117. Lyons Dover, ii, 300, 315.
[43] III. Reeve’s History English Law, 567.
[44] This was by virtue of a statute of the reign of Henry IV. III.
Reeve’s History English Law, c. xviii.
[45] III. Reeve’s History English Law, p. 568.
[46] 14 Henry VI., 24.
[47] 39 Henry VI., 18.
[48] 28 Henry VI., 4.
[49] _Ante idem._ III. Reeve’s History English Law, p. 569.
[50] 38 Henry VI., 14, 22.
[51] III. Reeve’s History English Law, 570.
Referring to the fact that wager of law was allowed in actions of debt
and detinue and the attempt to demonstrate that this was because jury
trials were inconsistent with the rights of the parties in these actions,
Pollock and Maitland, in their History of English Law, show that the
truth is that these actions are older than jury trials. (Vol. II., p.
634.)
[52] II. Pollock and Maitland’s History English Law, p. 636.
[53] _Ante idem._
[54] _Ante idem._
[55] 3 and 4 William IV., c. 42, sec. 13.
[56] Jur. Prov. Saxon. Lib. I., Art. 15, 18, 39.
[57] Lea, “Superstition and Force,” (3 ed.) 22, note.
[58] This protest against this procedure was in the Fifteenth century.
Schilter. Thesaur, II., 291.
[59] Pike, History Crime, i, 130; Thayer, “Older Modes of Trial,” II.
Essays in Anglo-American Legal History, p. 384.
[60] Jacob’s Review of the Statutes (2 ed.), 532.
[61] Anastas Biblioth. No. LXII.
[62] Gregor. Turon. Hist. Lib. V., cap. XLIX. The custom of acquitting
oneself by swearing on different altars, was an old Anglo-Saxon practice,
the plaintiff being allowed to substantiate his claim by oaths upon four
altars, while the defendant could rebut the charge by oaths upon twelve
altars. Dooms of Alfred, Cap. 33; Fleta, Lib. II., cap. lxiii, sec., 12.
[63] Spelman, Concil. I., 335.
[64] Lea, “Superstition and Force,” (3 ed.) 57.
[65] _Ante idem._, p. 61.
[66] Ann. Wint. 109; Wykes, 234; II. Pollock and Maitland’s History
English Law, 636.
[67] Maitland’s Pl. Cr. i, case, 61; Palgrave’s Com. ii, cxix, note.
[68] Lyon’s History Dover, ii, 265; II. Essays in Anglo-American Legal
History, 385.
[69] Year Book, 19 Henry VI., 10, 25.
[70] Year Book, 33 Henry VI., 7, 23.
[71] Cal. Proc. in Chan, i, ccxx-ccxxii. In Spence’s Equity
Jurisprudence, this case is cited as one of the notable cases which
finally helped to bring about the repeal of the law wager.
[72] Goldsborough, 51, pl. 13; Doctor and Student, ii, c. 24; Thayer’s
“Older Modes of Trial,” II. Anglo-American Legal History, p. 388.
In the persecution of the reformers, in 1527, under Henry VIII., Margaret
Cowbridge and Margery Bowgas were allowed to acquit themselves by the
oaths of compurgators, although there were several witnesses against
them, and the compurgators comprised several women in the test.
[73] Slade’s Case, 4 Rep. p. 95.
[74] Company of Glaziers’ Case, 2 Salk. 682.
[75] 12 Mod. 669, 684.
In Gunner’s case, in 1708, the plaintiff took a non-suit when the
defendant was ready to wage his law. Jacob’s Review of the Statutes, (2
ed.) 532.
[76] London vs. Wood, 12 Mod. 669, 679. This opinion of Lord Holt, that
wager of law would not lie, unless the debt was a secret debt, is based
upon the law, as stated by Sir Edward Coke, for he says: “The reason
wherefore, in an action of debt upon a simple contract, the defendant
may wage his law, is for that the defendant may satisfy the party in
secret, or before witnesses and all the witnesses may die.” (II. Inst,
45.) But of course this same plea of payment would be good, whether the
debt arose on contract or in parole, and the same reason would obtain for
perpetuating the testimony, and this illustrates how an erroneous custom
will live upon irrational doctrines.
[77] 12 Mod. 669.
[78] 12 Mod. 669.
[79] I. B. & P. (N. P.) 297.
[80] 2 Barnew & C. 538; 4 D. & R. 3.
[81] V. Harvard Law Review; II. Essays in Anglo-American Legal History,
391.
[82] King vs. Williams, 2 Barnew. & C. 538; 4 D. & R. 3.
[83] 8 Wheaton, 642; 21 L. Ed. 705.
[84] Palmer’s Rep. 14; Fleta, 136.
[85] 8 Wheaton, 675; 21 L. Ed. 713.
Compurgation was allowed in a charge of usury, by statute in
Massachusetts, in 1783. (St. Mass. 1783, c. 55.) But in Little vs.
Rogers, (1 Met. 108) Shaw, C. J., observes that the trial by jury has
been “substituted for the old trial by oath.”
Mr. Lea, in his excellent work, “Superstition and Force” (3 ed.) mentions
the fact that in South Carolina, an act of the Legislature of 1712
mentions specific English laws as still in force and enumerates the
law of compurgation, or wager of law, and that in Maryland, as late as
1811, Chancellor Kilty mentions the fact that wager of law has gone into
disuse, because contrary to our spirit of law, but does not contend that
it had then been specifically abolished, in Maryland. (Cooper’s Stat.
at L. of So. Car. Columbia, 1837, II., 403; Kilty’s Report on English
Statutes, Annapolis, 1811, p. 140; Lea, “Superstition and Force,” p. 81.)
CHAPTER VIII.
BENEFIT OF CLERGY.
Engrossed as the profession is today with the agitation for the
betterment of our remedial procedure, it will sometimes prove profitable
to turn aside from the progress of our twentieth century procedure and
entering the musty lumber-room of the law, brush aside the cob-webs
and take a cursory view of some of the pleas that occupied the time of
courts and lawyers of past centuries. Nothing is calculated to encourage
more respect for the modern procedure of American and English courts,
than reading the history of some of the unequal and unjust privileges
and exemptions which obtained in the administration of the English law,
until a comparatively recent date. The contrast is indeed striking, when
we turn from the just ideals of equality and justice that characterize
the remedial procedure of our day, to contemplate some of the customs
and pleas that were followed and enforced by our own courts, before the
evolution of our civilization had made the present ideals possible.
There is no doubt but that the English common law is the outgrowth of
the most enlightened system of jurisprudence that the world has ever
seen, for it represents the best thought of the brightest minds of
civilization’s most progressive people. Its rules and doctrines were
formed, however, during the middle ages, and although it was generally
consistent with the scholastic methods of thought that dominated the
thinking world of that period and for the most part, it was in thorough
accord with proper and just ideals, yet, at the same time, the general
doctrines and principles were applied along with many of the unequal
proceedings and special pleas and privileges existing in favor of the
higher classes and together with the extremely technical standards, that
frequently were nothing but mere fantastic quibbles.
The benefit of clergy is an illustration of the engraftment upon this
enlightened system of jurisprudence, of one of the old special privileges
of a favored class, who, as an incident and high prerogative of their
office, claimed exemption from punishment for crimes. Of course such
an exemption of a favored class was inconsistent with the object of
distributive justice, to visit equal punishment upon all alike who are
similarly situated and with the elevation of the standards of justice and
equality, the plea was finally abolished by the legislative and judicial
branches of Government in England and the United States.
The benefit of clergy, or _privilegium clericale_, was the exemption of
the clergy from all responsibility to the temporal courts and laws from
the punishment imposed for various criminal offenses. Originally the
persons of clergymen alone were held to be exempt from criminal process
before a secular judge, but the privilege was later extended by the law
to all who could read, as all such were held to be _clerica_, or clerks.
For many centuries this plea was an important part of the criminal
procedure of the continental countries of Europe and still furnishes a
curious and instructive part of the history of the laws of England.
The privilege had its origin in a claim made by the ecclesiastics,
at a very early period, for the entire exemption of their order from
the jurisdiction of the common law courts of England. The growth and
development of the privilege is an interesting chapter in the history
of the controversy between the secular and spiritual power, during the
middle ages and the limitation or expansion of the authority of the State
or the Church, over matters temporal, depended largely upon the public
sentiment that shaped the policies of the government and the weakness or
strength of the individuals holding the reigns of government.
Benefit of clergy was the immediate outgrowth of conditions contributing
to the growth of the English common law. Before the Norman conquest and
afterwards, for many centuries, the clergy took a very active part in
the legislation and judicial branches of government and they shaped the
policies of the government, in many important respects. The educated
class belonged to this profession and we owe it largely to them that
the Anglo-Saxon law has left us any evidences at all. During the Saxon
period of superstition and ignorance, the ecclesiastical power had the
ascendency, but it gradually declined, as intellect and education became
the common property of the masses. Bishops were then the principal
members of the courts of law and they instructed the judges in both the
spiritual and secular laws and the respective limits upon each.[1] The
question of ecclesiastical or lay jurisdiction gave rise to the most
intense jealousies and contests between sovereigns and archbishops and
lawyers, but the superior learning of the clergy resulted in a gradual
encroachment by the Church upon the powers of the State.[2] During the
reign of Henry II., the jurisdiction of the king’s court over criminal
clerks was the subject of a memorable quarrel, between king Henry and
Thomas a’ Becket.[3] Boniface, Archbishop of Canterbury, as the successor
of Becket, waged a continuous fight, during the reign of Henry III., to
establish and enlarge the power of the Church, over matters secular, when
clerks or churchmen were brought before the secular courts. He ordained,
under the authority of a convocation, in 1261, that archbishops, bishops
and other inferior churchmen should ignore the letters of the king,
calling them for trial before secular courts,[4] and before this, in
1253, with other bishops, he pronounced a sentence of excommunication
against all those who had violated similar provisions of the canonical
laws, while enforcing secular power.[5]
In this civilized age, it seems strange that the Church would so dominate
the State, since the State must have consented to such a power, or it
could not have existed; but the Church, in this superstitious period
of mankind, held the terror of excommunication over the heads of the
temporal authorities and the State was thus coerced into the gradual
consent to the domination of the spiritual authorities. The Church always
claimed exclusive jurisdiction over all spiritual offenses, and as it
held the unfettered power of excommunication, even though its degrees
were opposed to secular laws, those around whom the Church threw its
protecting arms were really held to be above and beyond the power of the
secular courts.
The power of the Church was based upon a theory of Divine Right and it
was claimed to be far nobler than that of the State, because, whereas,
the power of the Pope extended to the soul, itself, the power of Princes
was limited to the body alone. The power of the Church, being thus _jure
divino_, ought to have been limited, at all times, to matters spiritual,
but by a gradual encroachment and by compact with the powers of the
State, the Church also assumed to exercise authority over bodies by the
aid of the State. But notwithstanding the firmness with which the clergy
claimed the exemption from all secular interference for the persons of
clerks, and the general indulgence that the laity gave to this claim,
confirmed, as it was by solemn declarations and acts of Parliament, the
privilege was always viewed with more or less jealousy and considered
as a usurpation that was generously tolerated rather than as a part and
parcel of the established common law of England.[6]
Under the terms of the canonical decree, “No power was given to laymen
to judge God’s anointed,”[7] because laymen, instead of possessing
power to command, were under the Divine injunction to obey the Church
and Churchmen. The clergy was not without a notable precedent for this
position, for it was recorded that king Alfred had a judge hanged who had
executed a clerk, because as a secular judge, he must have known that he
had no power over clerks.[8]
Churchmen also found many Bible references as authority for the
privilege. In King David’s psalm of praise, he cautioned his subjects:
“Be ye mindful always of his covenant, and the word which he
commanded to a thousand generations;
Even of the covenant which he made with Abraham and of his oath
unto Isaac;
And hath confirmed the same to Jacob for a law, and to Israel
for an everlasting covenant:
He suffered no man to do them wrong; yea, he reproved kings for
their sakes,
Saying, _Touch not mine anointed, and do my prophets no
harm_.”[9]
One guilty of the crime of high treason was not entitled to clergy
and the exemption was not granted to those convicted of ordinary
misdemeanors.[10] A clergyman was exempted from capital punishment
_toties quoties_, as often as he repeated the same offense; for a second,
although it might be a wholly different offense, he was hanged. But of
the laity, peers and peeresses were discharged for the first offense,
without reading, while commoners, of the male sex, who could read,
were branded in the hand and women commoners were held not entitled to
clergy.[11] Nuns, however, were held entitled to their clergy, at an
early day, the same as the monks and other churchmen, but the privilege,
in contemplation of the law, enured for the benefit of the church and not
for the nun.[12]
As the privilege was enforced in more recent times, after conviction and
any time before the execution of the sentence, when the clerk claimed his
clergy, a priest or ordinary would present him with a “psalter,” and if
he could read his “neck-verse,” he was burned in the hand and discharged.
The first verse of the 51’ Psalm was the verse most generally read to
test the learning of the prisoner and this verse was therefore called a
“neck-verse,” because it decided the fate of the person claiming clergy,
and the neck of the unfortunate called upon to read this verse depended
upon his ability to read it.[13] The rule of law governing the ordained
clerk was that he could not be tried in the lay courts at all, but only
in an ecclesiastical court and his punishment was governed entirely by
that court. In Bracton’s time, even before conviction in the secular
court, the clerk was delivered when demanded by the bishop’s court.[14]
But before the end of the reign of Henry III. the accused was not
delivered until after his conviction.[15]
In the time of Edward III., the recognition and enjoyment of the benefit
of clergy, depended entirely upon the ordinary demanding the felon as a
clerk from the secular authorities.[16] In the reign of Edward IV., if
the ordinary refused a man his clergy, where he was able to read, the
cause was certified to the King’s Bench, and the ordinary was fined,
on the theory that he was only a minister of the secular court and not
a judge in the cause.[17] And during the same reign, if the ordinary
granted clergy to a felon who could not read, the ordinary was fined and
the convict hanged and the secular courts assumed the right to judge of
the ability of the prisoner to read, for they made the record, “_quod
legit ut clericus, ideo tradator ordinario_” and if the ordinary granted
clergy to one who could not read, or refused it to one qualified, he was
fined.
But the qualification as to reading was not strictly applied at this
period, for if the prisoner could spell and thus put syllables together,
he was held, by Fortescue, to be entitled to his clergy. Littleton said
that if the clerk refused generally to read, he was denied his clergy;
but if a cause were stated which could not be allowed by the law of
the land, as where he had not the _tonsura clericalis_ or _ornamentum
clericale_, if clergy were refused, the ordinary was fined and enjoined
to receive the felon.[18]
During the reign of Edward IV. the prisoner claimed his clergy, upon his
arraignment, but this was deemed prejudicial to the prisoner, for he
thus had no challenges and was denied the right to a trial on the merits
and even if innocent of the crime, if he could not read, was hanged,
and his estate was forfeited. Sir John Priscott, Chief Justice of the
Common Pleas Court, during the reign of Henry VI. changed the practice
and when the felon claimed his clergy, on arraignment, he was required
to plead to the merits and then, if convicted, the crown took his estate
by forfeiture and he was then allowed his clergy. This practice served
the double purpose of giving the prisoner the benefit of a trial on the
merits and giving the crown a chance at his estate, which the other
practice denied to the crown and hence, it was afterwards generally
followed.[19]
It was customary to keep a register of clerks-convict and persons
attainted, so that such persons might not have their privilege more than
once.[20]
The burning in the hand, which was a necessary part of the procedure
of the privilege of clergy, was not ordained by the statute (IV. Henry
VII.) as a punishment, but merely to enable the court, on a subsequent
arraignment of the offender, to ascertain if the defendant had been
accorded his clergy. By statute, during the reign of Elizabeth (18
Elizabeth), it was enacted that the prisoner should not be delivered
until he had been burned in the hand, and in Biggen’s case, near the end
of the reign of Queen Elizabeth, it was decided, notwithstanding the
statute referred to, that the Queen could pardon the burning in the hand,
but unless she had done so, the prisoner could not be discharged until
he had been burned in the hand, and must remain perpetually in prison.[21]
The case of one Stone, originating during the fourth year of the reign
of Queen Elizabeth, is interesting as showing the effect of clergy upon
crimes committed preceding the granting of clergy to the criminal. Stone
had committed two felonies in one day, one of which was clergyable and
the other not. He was first indicted upon the crime which was clergyable
and being found guilty, was admitted to clergy and the judgment was
recorded. Having been adjudged guilty at a subsequent session upon the
non-clergyable felony, the conviction on the clergyable offense was
set up in bar and was held to be good, by a divided court, seven of
the thirteen deciding that since he had been once placed in jeopardy,
it should not be presumed that the felony for which clergy was not
admissible was committed before the other and _in favorem vitae_, the
most merciful side should be taken and though the felony upon which he
was convicted last was committed after the other one, yet since the felon
had suffered judgment upon the former conviction, as a clerk convict, he
should not be arraigned upon the second indictment, because the effect
of the discharge on the conviction was to acquit him of all felonies
committed before the conviction, as he should have been arraigned for
all his offenses before his clergy was allowed and the court would be
presumed to have had them in mind, as this was the duty of the court,
and the effect of his clergy was to discharge him of all preceding
felonies.[22]
The judgment of the court, in Stone’s case, as to the effect of clergy
upon a preceding crime, was followed in an early North Carolina case,[23]
where the court held that if the defendant claimed clergy for an offense
committed before clergy was granted to him, this claim should be urged
the same as a pardon, when the prisoner was brought up for judgment on
the latter conviction.
The distinction between “clergyable” and “unclergyable” crimes was not
so clearly defined during the thirteenth century, as at a later period.
At this time the benefit of clergy was but the privilege of “ordained
clerks” and the legislation of king John’s reign shows that the exemption
was slowly and by degrees ordained as not applicable to the crime of
high treason.[24] While the exemption to the clerks of the twelfth
century was much broader than later, during the thirteenth century clerks
could be tried for all minor offenses and in Bracton’s day clerks were
answerable to civil process the same as the laity.[25] The clergy had so
far established the exemption of their persons from corporal pains, that
during the reign of Henry III. it was enacted that a clerk, taken for the
death of a man, or for any other crime, if demanded by the ordinary, was
to be immediately delivered, without inquisition, to the court Christian,
to make canonical purgation and to establish his innocence or stand
convicted.[26]
During the reign of Edward I., the practice established during the reign
of Henry III., that a clerk, convicted of felony, could be delivered to
the ordinary, was recognized by act of Parliament (Statute Westminster),
and this statute recited this privilege and simply admonished the
prelates not to liberate those so delivered to them, without putting
them to their canonical purgation.[27] In the 25’ year of Edward III.
the clergy complained to Parliament that a certain knight, entitled to
clergy, had been hanged and quartered, on a judgment of treason and that
a priest had been hanged for killing his master. These complaints led to
the enactment of the statute _De Clero_ (25 Edward III. st. 3) by the
terms of which it was provided that henceforth all manner of clerks, as
well secular as religious, convicted before any secular justice, for
treason or felony, touching other persons than the king himself or his
royal majesty, should freely have and enjoy the privilege of the holy
church and should, without any impeachment or delay, be delivered to the
ordinary demanding them.[28]
During the reign of Henry VII. (7 Henry VII., c. 1), the benefit of
clergy was taken away from persons convicted of desertion while under
enlistment as soldiers of the crown and the privilege was likewise taken
away from those convicted of petit treason. The exemption of the clergy
from punishment for crimes was given a most decided set-back by the
statute 4’ Henry VIII., c. 2, which provided that:
“All persons committing murder or felony, in any church,
chapel, or hallowed place; or who, of malice prepens, rob or
murder any person in the king’s highway, or rob or murder any
person in his house, the owner or dweller of the house, his
wife, child or servant being then therein, and put in fear or
dread, shall not be admitted to clergy.”
This statute contained no exception of those actually engaged in the
holy orders and this led to the most determined resistence on the part
of the clergy of the kingdom.[29] Henry VIII. stood firm, however, and
during the same reign another statute was passed (23 Henry VIII., c.
1), taking away the benefit of clergy from persons convicted of petit
treason, wilful, malicious murder, robbery, wilful burning of a dwelling
house, or barn, where grain or corn was stored, and the like privilege
was denied to the abettors, helpers, maintainers or counselors of such
felons, except only such as were within the holy orders. It was also made
a felony, without clergy, for a clerk convict to break prison and escape,
and this was a serious blow to the exemption, for though the lives of the
clergy were spared, after conviction of the offenses named, yet they were
to be condemned to imprisonment and even to death, if the ordinary so
directed.[30]
By 27 Henry VIII., c. 17, clergy was also taken away from servants who
embezzled their master’s goods or property, and by 28 Henry VIII., c. 1,
persons under holy orders were to be judged the same as those not under
holy orders, so that real clerks were subjected to capital punishment for
felony, the same as nominal clerks.[31] During the same reign, by statute
33 Henry VIII., c. 1 to 14, clergy was denied to persons practicing
witchcraft or enchantment and to those making prophesies upon coates
of arms, badges, etc.[32] Before the reign of Elizabeth, the granting
or recording clergy had been reduced to a mere formality, but by 18’
Elizabeth, it was provided that the temporal courts should not deliver
the prisoner, until he had been burned in the hand.[33]
Benefit of clergy was not abolished, in England, until the year 1825,
when, by statute, 7 George IV., c. 28, sec. 6, this ancient privilege of
the middle ages was abolished, in that country.
In the United States, by Act of Congress, April 30’, 1790, it was
provided that the benefit of clergy should not be allowed upon conviction
for any crime where, by statute, the punishment was death. In North
Carolina, in 1816, the punishment by burning in the hand was abrogated,
and, in Kentucky, the benefit of clergy was abolished, by statute, in
1847.[34]
The celebrated case of Doctor Horsey, Chancellor to the Bishop of London,
who, during the reign of Henry VIII., was prosecuted and adjudged guilty
of the murder of John Hunne, is one of the most interesting that has
come to the writer’s attention. On account of the well known position
of Doctor Standish, as an advocate of the temporal power, the clergy
concluded not to wait upon the procedure of the temporal courts, in
Doctor Horsey’s case, but they caused a charge of heresy to be lodged
against Doctor Standish, because of his advocacy of the power of the
temporal courts over the persons and punishment of clerks. The clergy
and the justices of the King’s Courts had a notable dispute concerning
the power of the temporal courts over the persons of clerks, the clergy
contending that the benefit of clergy was established by the express
command of Jesus Christ, in the words, _nolite tangere Christos meos_,
while the temporal justices argued that these were the words of King
David, not of the Saviour at all, and that the “anointed,” referred to
the believers, to distinguish them from the unbelievers, then abroad in
Palestine. Those who had proceeded against Doctor Standish were adjudged
guilty of a _praemunire_, when Cardinal Wolsey threw himself at the
king’s feet and beseeched him to withhold his decision until the Pope
could be heard from. King Henry, however, decided that the arguments of
the supporters of Doctor Standish had not been answered by the clergy and
concluded with all of his accustomed firmness:
“By the order and sufferance of God, we are king of England;
and the kings of England who have gone before us never had
any superior but God alone; and, therefore, know that we will
maintain the right of our crown and temporal jurisdiction, as
well in this point as in others, in as ample a manner as our
predecessors have done before us.”[35]
This decisive stand of the King concluded the agitation concerning the
conflict of authority over the case of Doctor Horsey. Doctor Standish
was discharged from the charge of heresy. Doctor Horsey was so far
rescued from temporal power, however, that he enjoyed the free custody
of the house of the Archbishop of Canterbury, until the popular clamor
had subsided, when he was privately surrendered to the court of King’s
Bench and having entered a plea of not guilty, it was confessed and the
defendant was discharged.[36]
Although the clergy thus failed to convince Henry VIII. of the true
foundation of its power, in the case of Doctor Standish, it lost none
of its authority against the temporal courts, in the case of Doctor
Horsey, but its jurisdiction and the benefit of clergy was practically
conceded by the judges of the king’s court and the privilege continued
to be recognized until the 23’ year of this king’s reign, when he waged
war against the whole papal authority and passed an act taking away the
benefit of clergy from murder and robbery, in certain cases.[37]
One of the most distinguished men known to have been accorded the benefit
of clergy, in England, was the gifted Ben Jonson, the friend of “gentle
Shakespeare” and the scholarly Lord Bacon. He was arraigned at the Old
Bailey, in October, 1598, for the manslaughter of Gabriel Spencer, in a
duel. The indictment charged that the defendant, at Shordiche, had,
“with a certain sword of iron and steel called a rapiour, of
the price of 3s., which he then and there had in his right
hand and held drawn, feloniously and wilfully struck the same
Gabriel then and there with the aforesaid sword, giving to the
same Gabriel Spencer, in and upon the same Gabriel’s right side
a mortal wound, of the depth of six inches and of the bredth
of one inch, of which mortal wound the same Gabriel then and
there died instantly.”[38]
The record in this same case further shows that the prisoner when
arraigned,
“Confessed the indictment, asked for the book, read like a
clerk, was marked with the letter T, and delivered according to
the form of the statute,”
which meant that the author of “Every Man in His Humor” had claimed and
been accorded the benefit of clergy; that he had been branded on the left
thumb with a T, generally known as the Tyburn T, and discharged.[39]
The benefit of clergy was set up and recognized in many criminal cases
in the United States, during the Colonial period and the great patriot,
James Otis, successfully urged the exemption in favor of Massachusetts
soldiers, convicted of murder for their participation in the Boston
massacre.[40] The Federal Court decided, in the year 1817, in the case
of United States vs. Lambert,[41] that a person convicted of bigamy,
in Alexandria, was entitled to clergy, and, if able to read, should be
burned in the hand and recognized for good subsequent behaviour. In the
year 1830, the Federal Court held, in the case of United States vs.
Jernegan[42] that on a conviction for bigamy, in granting the benefit of
clergy, it was discretionary with the trial court to dispense with the
burning in the hand.
In the year 1806 the Supreme Court of North Carolina held that females
could claim the benefit of clergy, the same as males.[43] The Legislature
of North Carolina, having, in 1816 passed a statute abolishing the
punishment of “burning in the hand” for clergyable felonies, the Supreme
Court of that state, construing this statute, in 1825, in the case of
State vs. Yeater,[44] held that corporal punishment and imprisonment
could not both be inflicted upon a person found guilty of the crime of
manslaughter.
In 1837, however, in the same state the same court held that one found
guilty of manslaughter could be burned in the hand and also imprisoned
for one year. And in the year 1855, the Supreme Court of North Carolina
held that when a new felony was created by statute, the privilege of
clergy was an incident thereto, unless it was expressly taken away by
the statute creating the offense.[45] And in State vs. Carroll,[46] the
same court held that when the defendant prayed the benefit of clergy, for
a clergyable offense, if the State objected because the defendant had
before had clergy, this objection must be set up by a plea in writing.
In State vs. Sutcliff,[47] decided in South Carolina, in 1855, a
defendant, convicted of burning a dwelling house, was held entitled to
the benefit of clergy, and in the same state, the same year, another
person convicted of arson in the nighttime, was held entitled to
clergy.[48]
In Indiana, in 1820, and in Minnesota, in 1859, the Supreme Courts of
those states held that the benefit of clergy did not and never had
existed in those commonwealths,[49] and in the year 1787 the Supreme
Court of Virginia held that the crime of arson was not a clergyable
offense in the courts of that state.[50] But in the same state, in 1795,
two persons were convicted for stealing a horse, in 1793, and before
the _sentence of death_ was pronounced, they both prayed the benefit of
clergy and the Supreme Court held that they were entitled to clergy.[51]
One of the last cases where clergy was recognized, in the United States,
was in a Kentucky case.[52] A negro was convicted of rape upon a white
woman, after a trial had before Judge Buckner, in Bonner County, at
Glasgow. Under the statute, the punishment to be assessed was death and
the judge believed the defendant innocent of the crime for which he had
been convicted. The defendant’s counsel claimed the benefit of clergy
for him and the defendant was found able to read the Constitution of the
United States and he was accordingly burned in the hand and discharged.
These instances are not nearly all that could be found in England or the
United States to illustrate the application of this exemption from crime,
at common law, but the random cases mentioned will show the general
recognition of the privilege until comparatively recent times.
There is no doubt but what the benefit of clergy bred much crime
and operated, for centuries, as a great impediment in the impartial
enforcement of the criminal laws of England and the United States. Like
the right of sanctuary, established by the early Saxon kings, the benefit
of clergy owed its existence to the fact that the law’s redress of wrongs
was, at an early period in the history of the world, inadequate to
protect the educated class from the ambition and cupidity of the race and
in the dangerous games for place and power then waged, these privileges
were very dear to Englishmen and on the whole, were strictly respected.
Judged by modern standards, the exemption of the clergy, enlarged to
include all those who could read, from the punishment that others,
similarly situated, were subjected to, who were not so fortunate as to
be able to read, seems an anomaly in the administration of any system
of justice; but it must be accepted as a mere incident of the barbarous
period when the privilege was applied.
As a doctrine of the common law, it illustrates the fallibility of
all institutions of man, both in and out of the holy orders. The
privilege had neither justice nor reason for its foundation, but, like
the practice of witchcraft, enchantment and the belief in ghosts, so
prevalent during the same period, it owed its existence to the ignorance
and superstition of that civilization. Because of such an unjust practice
the common law is not to be condemned, any more than is the literature
of the same period of English history, because of the introduction of
ghosts, witchcraft and enchantment, into the literary masterpieces of the
past centuries, for these beliefs were prevalent at that time.
The Benefit of Clergy was an institution of the “myriads who, before us,
pass’d the door of darkness through.” No doubt some of our institutions
and procedure, to the jurists of succeeding ages, that come and go, “upon
this chequer-board of nights and days,” will seem equally as unjust and
ridiculous as this institution of the past now appears to us. We should
congratulate ourselves, that with our own liberal constitution, founded
upon a more exact idea of distributive justice, we are able to “grasp
this sorry scheme of things,” which existed until the present century.
But that this institution continued until the past century, ought to
prevent our entire satisfaction with our own procedure, and urge us to
the improvement of our present laws.
FOOTNOTES:
[1] Bracton, Ch. XII., fol. 409.
[2] Glanville, lib. V. c. VIII., IX.
[3] Maitland, Henry II. and Criminous Clerks, E. H. B. vii 224; I.
Pollock and Maitland’s History Eng. Law, p. 447.
[4] II. Reeve’s History English Law, p. 341.
[5] Bracton, De Legibus, lib. V. c. XI., XII.; II. Reeve’s History
English Law, p. 344.
[6] III. Reeve’s History English Law, p. 196.
[7] Decret, lib., 1, tit. 10; III. Reeve’s History English Law, p. 348.
[8] Mirror, c. V.
[9] 1 Chronicles, XVI. 15, 22; Also, 1 Kings, XXVI. 9; 2 Kings, I. 16.
[10] 1 Chitty, Criminal Law, 667, 668; 1 Bishop’s Criminal Law, Secs.
622, 624; 4 Bl. Comm. ch. 28.
[11] Bouvier’s Dictionary, tit. Benefit of Clergy.
[12] II. Hale’s Pleas of Crown, 328, 371; I. Pollock and Maitland’s
History English Law, p. 445. By a curious combination of terms, some of
the old cases refer to the exemptions women in pregnancy enjoyed in the
law, as “Clergy of the belly.”
[13] Webster’s New Int. Dict; Murray’s English Dict., “Neck-verse.”
[14] Bracton f, 123b; I. Pollock and Maitland’s History English Law, p.
442.
[15] Coke, 2 Inst. 164.
[16] III. Reeve’s History English Law, pp. 197, 198.
[17] IV. Reeve’s History English Law, p. 59.
[18] 9 Edward IV. 28.
Kelying reports a case, where at the Lent Assizes, for Winchester, the
clerk appointed by the bishop to give clergy for the prisoners, charged
with larceny, delivered the book to the prisoner and the prisoner did
not look at the book at all, but when asked, “_legit_ or _non-legit_,”
the clerk replied “_legit_.” The court then bid the clerk of assizes not
to record that the prisoner read, and fined the bishop’s clerk for so
finding. (18 Car. II.)
[19] Littleton, 2 Inst. 164; IV. Reeve’s History English Law, p. 60.
[20] IV. Reeve’s History English Law, p. 466.
[21] 5 Eliz. Dyer, 50; V. Reeve’s History English Law, p. 346.
[22] V. Reeve’s History English Law, p. 345.
[23] State vs. Carroll, 27 N. C. (5 Ired.) 139.
[24] II. Pollock and Maitland’s History English Law, p. 501.
[25] Bracton, f. 401b; I. Pollock and Maitland’s History English Law, p.
130.
[26] II. Reeve’s History English Law, pp. 421, 422.
[27] II. Reeve’s History English Law, p. 573.
[28] III. Reeve’s History English Law, p. 197.
[29] IV. Reeve’s History English Law, pp. 458, 463.
[30] IV. Reeve’s History English Law, p. 466.
[31] IV. Reeve’s History English Law, p. 468.
[32] IV. Reeve’s History English Law, p. 468.
[33] V. Reeve’s History English Law, p. 346.
[34] American Com. Kentucky, p. 407.
[35] IV. Reeve’s History English Law, pp. 458, 462; Keilw. 180b, to 185b.
[36] Keilw. 180b, to 185b; IV. Reeve’s History English Law, pp. 458, 462.
[37] IV. Reeve’s History English Law, p. 463.
[38] This original old musty indictment was recently unearthed at the old
Sessions House, in London, by a representative of the London Globe and
was delivered to the Council of Middlesex county for preservation.
[39] It is reported that the wily Ben really bribed the jailer to use
cold steel in branding him, as no marks were found on his hand after his
death. (London Globe, April, 1910.)
[40] American Commonwealth, Massachusetts; Knapp’s “Sketches of Eminent
Lawyers,” etc.
[41] 2 Cranch, C. C. 137.
[42] 4 Cranch, C. C. 118.
[43] State vs. Gray, 5 No. Car. (1 Murph.) 147.
[44] 11 No. Car. 4 Hawks. 187. And see, also, State vs. Kearney, 8 No.
Car. 1 Hawks. 53.
[45] State vs. Bosse, 8 Rich. Law. 276.
[46] 24 No. Car. 2 Ired. 257.
[47] Suab. 372.
[48] State vs. Bosse, 8 Rich. Law. 276.
[49] Fuller vs. State. 1 Blatchf. 63; State vs. Bilansky, 3 Minn. 246; 1
Gil. 169.
[50] Commonwealth vs. Posey, 4 Coll. 109; 2 Am. Dec. 560.
[51] Commonwealth vs. Stewart, 1 Va. Cas. 114.
[52] American Com. Ky. p. 407. Ch. 21.
That Thackeray was thoroughly familiar with the law governing the Benefit
of Clergy and the nature of the punishment inflicted on the culprit
pleading guilty of an offense clergyable at common law, is evidenced by
his presentation of the plea in favor of Lord Mohun, the Earl of Warwick,
Col. Westbury and Henry Esmond, in his interesting plot, in “Henry
Esmond.”
CHAPTER IX.
PRIVILEGE OF SANCTUARY.
The privilege of sanctuary, sometimes called the privilege of asylum, was
the exemption afforded criminals, taking refuge in certain consecrated
places, from the ordinary operation of the law of arrest.
The institution is no doubt older than the time of Moses and we find
frequent references to it in the early books of the Bible.
In the book of Exodus the old Mosaic law was stated to be: “He that
smiteth a man, so that he die, shall be surely put to death,” but in the
same book, it is written: “And if a man lie not in wait, but God deliver
him into his hand; then I will appoint thee a place whither he shall
flee.”
Moses’ law thus distinguished between murder on malice aforethought and
mere manslaughter, as we call it and according to the ancient law of the
Israelites, there were cities of refuge to which a felon might flee, who
killed a man unawares.
Moses appointed six cities of refuge, three “on this side of Jordan”
and three “in the land of Canaan,” in order that the slayer might flee
thither which should kill his neighbour unawares, and hated him not in
times past; and that fleeing to one of these cities, he might live.[1]
Deuteronomy refers to the case of “the slayer which shall flee thither
that he may live”; distinguishing the man who lies in wait, from the
man who “killeth his neighbour innocently, whom he hated not in times
past.”[2]
In the book of Joshua it is provided that “When he that doth flee to one
of those cities shall stand at the entering of the gate of the city, and
shall declare his cause in the ears of the elders of that city, they
shall take him into the city unto them and give him a place, that he may
dwell among them. And if the avenger of blood pursue after him, then
they shall not deliver the slayer up into his hand; because he smote his
neighbour unwittingly and hated him not beforetime.”[3]
Over a thousand years before Christ we find Adonijah claiming the
privilege of sanctuary to protect him from the wrath of Solomon, for it
is recorded in the first book of Kings:[4]
“And Adonijah feared because of Solomon, and arose, and went
and caught hold on the horns of the altar. And it was told
Solomon, saying, Behold, Adonijah feareth king Solomon, for,
lo, he hath caught hold on the horns of the altar, saying:
Let king Solomon swear unto me today that he will not slay
his servant with the sword. And Solomon said: If he will shew
himself a worthy man, there shall not an hair of him fall to
the earth; but if wickedness shall be found in him, he shall
die.”
This case of Adonijah taking refuge in the temple, at the altar, as a
protection against the supposed wrath of Solomon, is nothing more nor
less than a claim of sanctuary, for even the hand of Solomon was stayed
at the threshold of such a consecrated place and the sinner taking refuge
at the altar was supposed to be surrounded by the protecting mantle of
the Great Jehovah. This is only one of many thousand similar concrete
cases that could be mentioned, no doubt, if the unwritten history of the
unnoticed millions of patriarchial days could be known, for the right
of sanctuary obtained generally in those ancient days. The ever-flowing
flood of time has swept away all records of the ordinary mortals,
however, and only the great peer out through the darkness of the past.
The conditions upon which sanctuary was bestowed, in the ancient days
of the patriarchs was that the refugee should not quit the city of
refuge until the death of the High Priest, for on this solemn occasion,
the great public grief was supposed to over-shadow all merely private
affairs. As recorded in the book of Joshua, one claiming sanctuary must
stand at the gate of the city and “declare his cause in the ears of the
elders”[5]; the elders tried his case, to ascertain if he were guilty
of malicious murder, or mere manslaughter, and if the case of murder
was established by the “avenger of blood,” who acted as prosecutor, the
criminal was given up, even though he clung to the altar,[6] but if the
elders found that he was not guilty of wilful murder, he was retained
as “a prisoner at large” in the city of refuge, until the demise of the
High Priest, when he was allowed to return to his home, duly purged of
the crime for which he had fled. If he departed from the “city of refuge”
before the death of the High Priest, however, he was regarded as an
outlaw and could be slain by any man, as such.[7]
According to Plutarch and Dr. Pegge, the right of sanctuary was
recognized among the ancient Greeks and the Oratory of Theseus was one of
the places of refuge for persons of lowly station, who fled to avoid the
oppression of the great and powerful “avengers of blood.” The privilege
afforded these lowly ones soon became a license for the protection of
criminals, however, and the most notorious criminals were protected from
the civil authorities and the holy places and temples came to be used as
asylums and resorts for the most notorious criminals.[8]
From Greece, the right of sanctuary spread to Rome, and although, by the
Roman law, murderers, escaped slaves, robbers, and public debtors were
excluded from sanctuary privileges,[9] in the course of time, the priests
refused to deliver up the slaves to their masters, the debtors to their
creditors, or the murderers to the magistrates, and the temples and
churches became regular dens for thieves, murderers and criminals of the
worst kind.[10]
Long after the civilizations of the ancient Jews and Grecians had passed
away, the privilege of sanctuary, which they recognized, was perpetuated
in various forms, and in most of the later civilizations we find
evidences of similar customs obtaining.
Before the privilege of sanctuary was guaranteed by written statute law,
the right was recognized by the general usage of the Christian church,
in accordance with the early Mosaic law and in all the countries whose
civilization borrowed from the ancient Israelites, there is evidence of
such a custom.
The Emperor Constantine, as early as the year 324 caused laws to be
enacted, extending and recognizing the privilege of sanctuary; Theodosus,
in the year 392, made a law regulating the exemption to criminals of his
day and Theodosus II. extended the freedom of sanctuary, from the altar
and body of the church itself, to which it was previously confined, to
all the buildings and places contained within the outer walls of the
consecrated places, set apart for purposes of sanctuary.[11]
Although the fact is not established by competent authority, it has been
stated that the privilege of sanctuary obtained in England, as early as
the close of the second century after Christ.[12] The right may have been
recognized as early as this date, but the history of the period does not
give us any very authentic record to sustain that it did. Soon after the
conversion of the Saxons to Christianity, however, all places of public
worship were looked upon as so consecrated that criminals taking refuge
in any of them were temporarily protected from the process of the civil
authorities.[13]
Unlike the ancient Jews, the early Saxons received even the felons
guilty of wilful murder, for a period of thirty days, if they paid
the _Wehrgeld_, fixed by the officers of the church, according to
the standing of the person killed; he was protected from the civil
authorities for a period of thirty days, on payment of the _Wehrgeld_,
if he provided his own sustenance, after which he was delivered to his
friends.[14]
As sanctuary was only extended to those, under the Mosaic law, who
“declared their cause in the ears of the elders of the city,” so, under
the Anglo-Saxon law, the criminal claiming sanctuary was required to
confess his crime and declare that he sought the safety of the church to
preserve his life.[15]
Under the old Saxon law, however, the privilege was not extended for
a longer period than forty days and at the end of that time, if the
prisoner did not _abjure the realm_, he was delivered to his friends, or
to the civil authorities. Under the practice known as _abjuration of the
realm_ if the sanctuary felon, within forty days after taking sanctuary,
went, in sackcloth, before the coroner and confessed his guilt and took
an oath to quit the realm and not to return, without the king’s license,
he was then attainted of the felony, but was given an additional period
of forty days to prepare for his journey and to keep the privilege
alive, he was compelled, within this period, to repair, with a cross in
his hand, as an indicia of his crime, but an emblem of the protection
afforded him by the church, to the port assigned him, and to there take
his journey for some foreign shore.[16]
Large numbers of the English felons, at an early day, by this practice
known as _abjuration of the realm_, were induced to leave England and
annually many such “undesirable citizens” took passage from Dover,
to France or Flanders, under the threat of delivery to the civil
authorities, to answer for their crime, if they did not voluntarily
assume this perpetual banishment and suffer the forfeiture of their
estate to the crown.[17]
After _abjuration of the realm_, if the prisoner afterwards returned to
England, without the license of the king, so to do, he was regarded as
an outlaw and, when caught, was condemned to be hanged, unless he was a
clerk, in which event, he was allowed to claim the _benefit of clergy_,
and to be discharged, after the usual preliminaries and the punishment
inflicted upon those claiming clergy for such a crime as the sanctuary
criminal had committed.[18]
During the period of the forty days, while the criminal was enjoying
his privilege of sanctuary, the _villata_ where the crime was committed
was required to watch the sanctuary, to prevent his escape, without
_abjuration of the realm_; if the coroner did not come for the period of
forty days, the township was required to watch the church for this full
period and if the criminal escaped, because of the failure to do so, the
township was amerced accordingly.[19]
The privilege of sanctuary was recognized by the code of Ina, King of
West Saxony, in 693, and the fifth section of the code provides that if a
felon, who had been convicted of a capital offense fled to a church, or
sanctuary, his life should be spared and if any criminal adjudged to be
flogged, sought refuge in such consecrated place, the stripes, that he
would otherwise receive, should be withheld from him.[20]
In the year 887, under a statute of Alfred the Great, the privilege
of three nights was allowed the criminal seeking the protection of
the church, to enable him to prepare for his safety, and by this same
provision of the law, if anyone violated the privilege of sanctuary,
during the period named, by inflicting blows, wounds, or bonds, upon the
sanctuary criminal, he was obliged to pay the sum of One hundred and
twenty shillings to the ministers of the church, whose precincts had
been invaded.[21]
The Mirror of Justice, reports that King Alfred caused a judge to
be hanged, who had invaded the jurisdiction of the holy orders and
removed, by civil process, a criminal who had sought the protection of
sanctuary[22] and it is certain that the right was not only safe-guarded
by the law, in the time of Alfred, but that Ethelred and all subsequent
Saxon kings expressly sanctioned the privilege.[23]
With the advent of William the Conqueror, the law of sanctuary, with the
other Saxon laws that he did not repeal, became more fixed and definite,
but the extent of the privilege was more or less varied, by the laws or
practices of the different subsequent kings.
After the conquest the practice obtained of erecting a stone seat,
beside the altar and several of these seats were erected in the English
churches, and criminals fleeing to these seats were protected by the
peace of the church, _pax ecclesiae_, and guarded by all its sanctity. To
violate the protection afforded by this seat, or of the shrine of relics,
was an offense too grave to be compensated by the payment of a mere money
fine. One of these seats of stone still remains at Beverly and another at
Hexham.
The privilege at Beverley was granted by Athelstan and extended for a
radius of a mile around St. John’s as the center. The outward and next
outer boundaries of this circle were designated by crosses of rich
carving. The third boundary began at the entrance to the church and the
sixth embraced the high altar and the “fridstool.”[24]
In the four roads leading to the monastery of Hexham, in Northumberland,
the boundary stones were rude crosses, around which, in Saxon characters
and letters was the word “Sanctuarium,” which meant so much to the
criminals of early times, seeking the protection of the “Chair of Peace.”
The “fridstool” at Hexham has been carefully preserved and is much more
extensive and handsome than that at Beverly, as it has interlaced Saxon
and Norman ornaments on the top of the chair and a moulding extends below
and around the seat.[25]
At Durham, the privilege extended to the church, the churchyard and the
circuit. All who came within this solemn circle were protected, for
the church was supposed to throw around them its protecting arms and
the penalties for intruding upon this “charmed circle,” increased in
proportion as the degree of holiness was desecrated.[26]
William the Conqueror granted the charter to St. Martin’s le Grand and
by the charter the privilege extended not only to the church, but to the
college of St. Martin and the precincts thereof.[27]
Westminster, perhaps the most famous sanctuary in England, received its
charters from two of the kings of the Heptarchy and Edward the Confessor
attempted to forever establish it as one of the perpetual sanctuaries of
England, for all classes of criminals, in the following broad grant:
“I order and establish, forever, that what person, of what
condition or estate soever he be, from whence soever he come,
or for what offence or cause it be, either for his refuge in
the said holy place, he be assured of his life, liberty and
limbs. And over this, I forbid, under the pain of everlasting
damnation, that no minister of mine, or of my successors,
intermeddle with any the goods, lands, or possessions of the
said persons taking the said sanctuary.... And whomsoever
presumes or doth contrary to this my graunt I will he lose
his name, worship, dignity and power and that with the great
traitor Judas, that betrayed our Saviour, he be in everlasting
fire of hell; and I will and ordain that this my graunt endure
as long as there remaineth in England, either love or dread of
Christian name.”[28]
So essential was it then regarded to maintain, at all hazards, the _pax
ecclesiae_, that the red handed murderer, even, when he once reached
the sacred precincts of the church’s domain, was to be protected from
the mere temporal powers of the earth, because he thus placed his faith
in a higher law and the mundane officers of the law, for attempting
to preserve the peace of the realm, if they transgressed upon the
sacred soil consecrated to the Lord and used also for the protection of
criminals, were classed along with traitors to the Lord and a dire curse
proclaimed against them. It is well for the race that such delusions have
passed away, along with the delusions of witchcraft and other fanaticisms
of that age.
The Whitefriars, or Alsatia, an establishment of the Carmelites, was
founded by Sir Patrick Grey, in the year 1241, upon a plot of ground,
granted by Edward I., on Fleet street, located between what is now
Salisbury street and the Temple, and Fleet street and the river
Thames.[29]
According to the law, as it finally developed, if a man fled to any one
of the many sanctuaries, _chartered by the Crown_, and claimed protection
from the civil authorities for a crime he had committed, regardless of
the enormity of his crime, he could remain there undisturbed, for life
and was not obliged to make his _abjuration of the realm_, as he was
required to do in case the asylum was not such a chartered institution.
Many of these chartered asylums were established, and aside from those
mentioned, there were sanctuaries so chartered at Wells, Norwich, York,
Manchester, Derby, Lancaster and Northampton.[30]
In the absence of a special charter, however, the crime of treason was
not a sanctuary crime and traitors were not protected, even though they
sought the portals of such consecrated places.[31]
During the reign of Edward I., about the year 1262, the Abbot of
Westminster attempted to extend the privilege of sanctuary, to those
guilty of treason, to debtors and other classes of criminals than those
who had formerly enjoyed the right and he also contended that the civil
officers were not allowed, under the conditions of the charter of that
institution, to enter upon any places, however remote, that belonged to
the abbey. A law suit resulted and notwithstanding the broad terms of the
charter above quoted, it was decided by all the justices that sanctuary
was confined to felons alone and that the sheriffs of London had a right
to enter the town of Westminster and to proceed to the very gates of the
abbey and to enter the houses of the abbey elsewhere in the county, to
arrest felons.[32]
The class of criminals who sought protection under the right of
sanctuary, included the whole gamut of crimes known to English law,
murder or homicide, debt, horse and cattle stealing, housebreaking,
or burglary, escaping from prison, rape, harbouring a thief, treason,
receiving stolen goods, counterfeiting, larceny and the other crimes
common in the realm and made so by statute, or existing at common law.
During the reign of Henry VII., it was decreed that when an offender fled
to sanctuary, it was not enough for him to declare that he came there to
save his life, but he must add that he had committed a felony; though
he need not specify the felony, before the coroner came.[33] But if he
failed to make such a general declaration, he could be dragged from the
sanctuary and was not exempt from civil process.[34]
The system whereby the felon fled to sanctuary and was accorded the
privilege is described in the literature of the period descriptive of the
manner of enjoying this right.
A knocker was usually provided at the outer door of the abbey and one or
two janitors roomed above the door, to admit such nocturnal visitors as
called at different hours to claim their sanctuary. After the refugee was
admitted to the sanctuary, the Galilee Bell was tolled, to announce to
the outer world that another sanctuary criminal had been admitted. A gown
of black cloth, with a yellow cross, was given to the culprit to wear and
he was disarmed and assigned to his quarters.[35]
The oath administered to the refugee has been preserved by the Harleian
Manuscripts[36] and a form of confession and abjuration, administered by
Sir William Rastall, Chief Justice of the Court of Common Pleas during
the reign of Queen Mary, has been handed down to us.[37]
While the right was held not to extend to cases of treason, generally,
in different reigns, we find that it was extended to include treason, as
well as the lesser felonies.
Henry IV. wrote a letter to Cardinal Langley, which is preserved in the
Treasury,[38] wherein that monarch respected the privilege of sanctuary,
even in a case of treason, and asked the protection of St. Cuthbert for
the person of Robert Marshall, “late comitted to prison for treason, now
escaped and broken into the same into youre church of Duresme; we having
tender zele and devocion to the honour of God and St. Cuthbert, ... wol
that for that occasion nothyng be attempted that shal be contrarie to the
liberties and immunitie of our church. We therefor wol and charge you
that he be surely kept there, as ye wol answere unto us for him.—Yeven
under our signet at our towne of Stanford, the xxvii day of July.”
There was flagrant breach of the ancient privilege of sanctuary,
in England, in 1378, in the case of Sir Robert Haule and Sir John
Shackle. Having escaped from the Tower, these gentlemen took refuge in
Westminster. Boxhall, the constable of the Tower, with fifty armed men
pursued them and although the celebration of mass was in progress, when
they entered the abbey, they pursued the prisoners and although Sir John
Shackle escaped, they killed Sir Robert Haule, by hacking him, with their
swords, while he ran around the choir, until he fell dead, with twelve
serious wounds, near the prior’s cell.[39]
Owen Tudor, the father of Henry VII. took refuge at Westminster and Queen
Elizabeth, the widow of Edward IV., with her son, also took sanctuary
there to escape the ferocity of her inhuman brother-in-law, Richard III.
Sir Thomas More gives a graphic account of the sanctuary of Elizabeth:
“Therefore now she (Queen Elizabeth Woodville) toke her younger
sonne the Duke of Yorke and her daughters, and went out of the
Palays of Westminster, into the Sanctuary and there lodged in
the Abbote’s Hac and she and all her children and campaignie
were registered for Sanctuary persons. Whereupon, the Bishop
(Lord Chancellor Rotheram, Archbishop of Yorke) called up all
his servants and took with him the great seal and came before
day to the Queen, about whom he found much heavyness, rumble,
haste, businesse, conveighaunce, and carriage of her stuffe
into Sanctuary. Every man was busy to carry, bear, conveigh,
stuffe, chestes, and fardelles, no man was unoccupied, and some
carried more than they were commanded to another place. The
Queene sat belowe on the rushes, all desolate and dismayed.”[40]
A pathetic picture, of this poor widowed Queen, sitting all alone,
amid the green rushes, a refugee from the ferocity of her wolfish
brother-in-law. One devoid of chivalry and possessing only common human
instincts of pity would have offered protection to a lady in such sad
plight, but history does not record it of “Crookbacked Richard,” for he
determined early to prove a villain and, to clothe his naked villany
“with old odd ends stol’n forth of holy writ”; he seemed a saint, when
most he played the devil and was not only devoid of pity for others, but
found, in himself, no pity for himself.[41]
An instance of the temporary violation of the royal charter privileges
granted to St. Martin’s le Grand, occurred in September, 1442, when
an officer was conducting a prisoner from Newgate to Guildhall. When
they reached Panyer Alley five of the prisoner’s friends rushed out
and rescued him from the officer and took him to St. Martin’s claiming
sanctuary. The sheriffs of London went to the Church and not only took
the prisoner, but all five of his friends, with chains round their necks
to Newgate. The matter was brought before the King’s Star Chamber, by the
Dean and Chapter of St. Martin’s le Grand and the claim advanced that
the ancient charter privileges of the Church had been violated by the
Sheriffs and the King ordered the men to be sent back to St. Martin’s
“there to abide freely, as in a place having franchises, whiles them
liked.”[42]
During the reign of Henry VII., the interesting case of Humphrey Stafford,
was decided, wherein the right of sanctuary, in treason, was expressly
denied. Stafford had been attainted of treason and claimed sanctuary but
was taken from the sanctuary and imprisoned in the Tower. When brought to
the Bar of the King’s Bench, he pleaded his right of sanctuary, but after
solemn discussion and reflection, the judges gave a unanimous decision
that treason was such an exalted crime against the prerogatives of the
King, that it could not be included within the crimes for which sanctuary
would be allowed, and they disregarded the ancient charters to the
contrary and gave judgment that Stafford should be executed.[43]
It was attempted to have this holding reviewed the year following the
decision, when the Abbot of Abingdon appeared before the judges and
produced his ancient charters, upon which he claimed his privileges were
founded and the whole issue was gone into in exchequer chamber, before
the judges. The Abbot claimed that the judges should confer with the
prelates before pronouncing judgment, but one of the judges replied that:
“There can be no franchise without grant from the king. For the
king can grant that any person who enters such a place, having
committed treason, shall not be taken therefrom. And this shows
that it can be done without the assent of Pope or Bishop, and
that the Pope cannot do it within this realm. For to pardon or
dispense with treason, pertains exclusively to the king. And
a place of safety, is as a _privilege_, not as sanctuary. But
when the Pope has consecrated the place, then it is sanctuary,
not before.... But the principle of protection arises by our
law, of which the cognizance belongs to us.”
And this view obtaining, the Abbot was denied his suit and it was
finally held that no right of sanctuary existed in case of a charge of
treason.[44]
Illustrating the growing tendency to limit the privilege of sanctuary
during the reign of Henry VII., another significant case, will not be
studied in vain. Two felons were taken out of sanctuary, at Southwark
and when arraigned for their crimes before Sir Thomas Frowike, Chief
Justice, they pleaded their sanctuary and prayed to be restored. They
were commanded to plead to the felonies with which they were charged,
on the merits, but refused, claiming that as they were wrongfully taken
out of sanctuary they were bound to plead to the indictment; the court,
however, found that they had not been taken out of sanctuary and then,
without arraigning them again, ordered that they be subjected to the
terrible _peine forte et dure_, for standing mute and refusing to plead.
So final judgment was entered, notwithstanding their right to sanctuary,
that they be taken to the jail, from whence they came, and laid upon the
bare ground, and that so much weight be laid upon them as they could
suffer and more, and that they should have nothing to eat but bread and
water; and that so they should be kept, continually, until they died.[45]
As indicative of the cruelty and barbarism then obtaining, this judgment
is an important index and that such a judgment should have been rendered
against men claiming the privilege of sanctuary, was not only contrary
to the law of _peine forte et dure_, which punishment was only assessed
upon those standing mute and refusing to plead at all, and not to those
claiming an exemption given them by such a well settled custom approved
by the laws and decisions of the courts for many centuries, but it was
certainly contrary to the spirit and intent of the law and condemns the
judges pronouncing such a harsh judgment, even unto this late day.
In Scotland, by the ancient canons of the Scottish Councils, much more
sacredness was attached to the plea of sanctuary, than obtained during
this period of English history. Excommunication was there incurred
for the offense of taking criminals from sanctuaries and depriving
them of the protection of the church. Scottish kings granted charters
recognizing broader privileges in certain churches than in others, and
many particular ecclesiastical asylums were established in Scotland, by
special charters.
One of the most celebrated sanctuaries in Scotland was the church of
Wedale, now called Stow, for in this church there was an image of
the blessed Virgin, believed to have been brought by King Arthur,
from Jerusalem. David I., of Scotland, granted the “king’s peace,” in
addition to the church’s protection, to those refugees taking sanctuary
at the church of Lesmahagow, and it was, for centuries, one of the most
prominent sanctuaries of Scotland.
One of the most remarkable features of the custom of sanctuary, obtaining
in Scotland, was that of the _Clan Macduff_, alleged to have been granted
by Malcolm Canmore, on recovering the throne of his ancestors. Any person
related within the ninth degree to the Chief of the Clan Macduff, who
committed manslaughter, was entitled, when he fled to Macduff’s cross,
in Fife, to have his punishment remitted to a fine, or at least to be
repledged and exempted from trial in any other jurisdiction, by the Earl
of Fife. History records that this privilege of sanctuary, saved the life
of Hugh de Arbuthnot and his accomplices, from trial for the murder of
John de Melvil of Glenbervie, in the year 1421.
The Scotch law of sanctuary was more guarded than the English, in the
middle ages, in affording too easy an immunity for crime, but in this
country, there existed in most recent times, a sanctuary for debtors in
the abbey and palace of Holyrood, with its precincts, including the hill
of Arthur’s Seat and the Queen’s Park.[46]
The privilege of sanctuary, while it obtained in England and Scotland
gave rise to considerable legislation and litigation, to restrain the
right within the proper limits and to interpret the laws governing the
privilege as it had previously been enjoyed.
In 1378 it was ordained that debtors claiming sanctuary with the intent
of defrauding their creditors should have their goods and lands levied
upon to discharge their debts.[47]
In 1487 Pope Innocent VIII. authorized the arrest of persons who left the
sanctuary, to commit murder, robbery or other felony, though they sought
the sanctuary, the second time, for protection and he ordered at the same
time that those inmates of sanctuaries who were guilty of treason should
be prevented from leaving the realm.[48]
Statutes of the time of Henry VIII. greatly curtailed the privilege of
sanctuary. By act of Parliament, passed in the twenty-first year of his
reign,[49] it was provided that the culprit:
“Immediately after his confession, and before his abjuration,
was to be branded by the coroner with a hot iron upon the brawn
of the thumb of the right hand, with the sign of the letter A,
to the intent he might be the better known among the king’s
subjects to have abjured.”
It was found that the citizenship of the realm was becoming weakened
by sanctuary men _abjuring the realm_, so Henry VIII., by statute
provided,[50] That
“every person abjuring was to repair to some sanctuary within
the reign which himself should choose, and there remain during
his natural life; and to be sworn before the coroner upon his
abjuration so to do. But if he went out of that sanctuary,
unless discharged by the king’s pardon, and committed murder or
felony, he was liable to be brought to trial for that offense,
and was excluded from the right of sanctuary.”
In the twenty-sixth year of the reign of this monarch, sanctuary was
taken away where the crime was treason,[51] and in the thirty-second
year of his reign it was enacted that “all sanctuary persons were to
wear a badge or cognisance to be assigned and appointed by the governour
of every sanctuary, openly upon their outer garment, of the compass,
in length and breadth of ten inches under the pain of forfeiting the
privilege of sanctuary.” They were also prevented from carrying knives
or swords or other weapons and were not to leave their lodging except
between sunrise and sunset, and the right of sanctuary was also confined,
by Henry VIII., to parish churches, churchyards, cathedrals, hospitals
and college churches and all dedicated chapels.
One of the first acts of James I., when he began to rule over England,
was to further abridge the right of sanctuary and twenty years afterward
in 1624, the same monarch finally abolished the right of sanctuary for
all kinds of crime, in England.[52]
Various precincts continued to afford shelter for criminals, in and
about London, however, long after the enactment of this statute of James
I., intended to finally abolish the practice and it was not until the
later act of 1697 that the custom was finally abrogated for good, in
England.[53]
Both while the practice of sanctuary obtained and years after it passed
away, however, the institution furnished a theme for popular authors to
weave romances around and Shakespeare, Shadwell, Sir Walter Scott, and
other writers, whose names commence with other letters of the alphabet,
have found the ancient law of sanctuary, an attractive source of legal
reference.
In describing the argument before the Council, as to the right of Queen
Elizabeth, the widow of Edward IV. and her son, to claim sanctuary, when
they had committed no crimes and the son had done nothing to entitle him
to sanctuary, Shakespeare makes Buckingham say, in Richard III.:
“_Buck._ ... You break not sanctuary in seizing him.
The benefit thereof is always granted
To those whose dealings have deserv’d the place,
And those who have the wit to claim the place;
This prince hath neither claimed it, nor deserv’d it;
And therefore, in mine opinion, cannot have it;
Then, taking him from thence, that is not there,
You break no privilege nor charter there.
Oft have I heard of sanctuary men;
But sanctuary children, ne’er till now.”[54]
Cardinal Wolsey sought the benefit of sanctuary, after his disgrace, at
the Abbey of Leicester, in King Henry VIII., in the following touching
plea:[55]
“O father Abbot, an old man, broken with the storms of State,
Is come to lay his weary bones among ye; Give him a little
earth, for charity.”
The poor, desolate widow of Edward IV., after the death of her husband,
whose plea of sanctuary we have already described, is thus made to
reflect upon the protection in sanctuary, in 3’ Henry VI.:
“_Queen Elizab._ I’ll hence, forthwith, unto the sanctuary,
To save at least the heir of Edward’s right.
There shall I rest secure from force and fraud.”[56]
And in Coriolanus, as if realizing that sanctuary was an institution that
had out lived its usefulness, Shakespeare thus refers to it as a “rotten
privilege”; when Aufidius is made to say:
“_Auf._ ... nor sleep nor sanctuary, being naked, sick; nor fane nor
capital;
The prayers of priests, nor times of sacrifice,
Embarquements all of fury, shall lift up
Their rotten privilege and custom ’gainst
My hate to Marcius.”[57]
Already the trend of public thought was against the custom which afforded
exemption to the criminal seeking refuge in the sacred places of the
kingdom, and the ancient law of sanctuary, since the reign of Henry
VII. had been gradually amended and so many different limitations were
imposed upon the ancient privilege during the reign of Henry VIII., that
the public were about ready for the final repeal of the law, by King
James, so the gifted Shakespeare, ever alive to the popular views of his
audiences, in referring to sanctuary, in Coriolanus, speaks of it as a
“rotten privilege” that could not stay the hatred of Aufidius for Marcius.
This old institution has passed away forever, in the ever flowing flood
of time, carried away by the current of the centuries. The necessity
for such a custom has long ceased to exist, but in the dim past, when
the “avenger of blood” was abroad in the land and men, fed upon the
delusions that were rampant, clamored, like wolves, for the life blood
of the criminal, the old knockers on the sanctuary doors were most
welcome sights to the fearful criminal, pursued by the howling mob. In
our imagination we can see the cringing murderer, bent and fearful, as
he hurries through the black browed night, followed by his blood-thirsty
pursuers, like a hunted stag, fleeing for the blessed portals of the
sacred places. What a sigh of relief he must have felt, when he reached
the ancient altar of some of the old sanctuaries of the middle ages and
with what exultation his heart must have throbbed, as he clung to the
ancient “frith-stool” that for untold centuries had afforded protection
to criminals from the vengeance of the pursuer.
This obsolete custom of the inhabitants of the lost world of the past
had for its recommendation the charitable and philanthropic object of
saving men from the many “crimes against criminals,” then obtaining. Many
instances, no doubt, existed, where the practice was used to prevent the
civil authorities from enforcing the law and it was used as an instrument
whereby “crimes went unwhipt by justice.” But in the harsh days when
the extremes, in that regard, prevailed, it is as well that Mercy was
thus used to temper Justice, and, upon the beneficent theory that “it is
better for a thousand guilty men to go free than for one innocent man to
suffer,” it was an institution accompanied with most benevolent results.
The hands of the officers of the law were held up when they came to the
charmed portals of the sacred sanctuary. The old Mosaic law and the time
honored charters of the Crown decreed it. And while the officer was thus
thwarted and Justice cheated, the “boys of Westminster Knoll”; “the birds
of St. Martin’s”; the “Bravoes of Alsatia” and “Freemen of the Borough,”
flourished and lived. Many of them, perhaps, belonged to the large class
of the “predestined lost” and if their inner lives had been scanned,
there were no doubt mitigating circumstances why they happened to be
as they were. It may have been decreed, from the beginning that they
should be criminals, instead of honest men. However this may be, they
contributed to the quota of the crime of the world and with the right and
wrong then obtaining, have past away forever. Let us be thankful that as
many of them as did successfully embrace the privileges of sanctuary were
spared through this merciful custom, for, in the end, it will make no
difference whether this or that criminal suffered death just at this or
that particular time, or a little later. He paid the penalty of the flesh
certainly, without much delay and that he was allowed to consort with
holy men, free from the war of the outside world, and feel the influence
of their altruism for a time, and listen to the service of the sacred
altar, with its superstitious chant, could but have had a softening and
leavening influence upon his life.
So while inconsistent with a proper administration of justice, which
contemplates the visitation of equal punishment upon all alike, under
similar conditions, for the same crimes, amid the rapine and murder
of the middle ages it was often a shield for innocence, as well as a
protection for crime and we can hardly regret that there was such an
oasis in the desert, where the persecuted could find rest from the wild
beasts of the desert domains—“wilder than wildest wolf or bear.” They all
have gone, who suffered then—gone, “with the snows of yesterday”—the way
the Mammoth went his way. So whether it was good or ill, since sanctuary
gave to those who lived and suffered here below, “one little glimpse
of Paradise, to ope the eyes and ears of men,” we would not have it
otherwise.
FOOTNOTES:
[1] The six cities appointed in the book of Numbers were only for those
who “killeth any person unawares.” (xxxv.)
[2] Chapter XIX. 4.
[3] Joshua, XX. 4, 5.
“These were the cities appointed for all the children of Israel, and
for the avenger that sojourneth among them, that whomsoever killeth any
person unawares, might flee thither, and not die by the hand of the
avenger of blood, until he stood before the congregation.” _idem._ 9.
[4] Chapter I., 50, 52.
[5] Joshua, XX., 4, 5.
[6] I. Kings, 1, 50, 51.
Nimrod, on the death of his eldest son, erected a golden statue of him
in his palace and ordained that all criminals fleeing thither should be
protected and this was a species of sanctuary. The Green Bag, vol. VIII.,
1896, p. 422.
[7] Chambers Journal, vol. 44, Jan.-June, 1867, p. 170.
[8] The Green Bag, vol. 8, 1896, p. 423.
[9] Chambers Journal, vol. 64, p. 513.
[10] Plutarch, Dr. Pegge; Green Bag, vol. 8, 1896, p. 423.
[11] Chambers Journal, vol. 64, p. 513. Papal sanction was expressly
given in the year 620. _ante idem._
[12] Chambers Journal, Vol. 64, August, 1887, p. 512.
[13] Chambers Journal, Vol. 44, June, 1867, p. 170.
[14] _Ante idem._
[15] I. Reeve’s History English Law, p. 198.
Reeves shows that at this early day the _pax ecclesiae_ was more sacred,
before the law, than the _pax regis_, _ante idem._
[16] Reville, L’Abjuratio regni, Revue historique, vol. 50, p. 1;
M. Reville contends that the law of abjuration is purely an English
institution and was adopted by the Normans, from the early Anglo-Saxons.
See Pl. Cr. pi. 48, 49, 89; Britton, i, 63; Leg. Edw. Conf. c, 5.
[17] II. Pollock and Maitland’s History English Law, p. 590.
[18] _Ante idem._
Speaking of the practice known as _adjuration of the realm_, Pollock and
Maitland, in their excellent history of English Law, say: “The coroner
came and parleyed with the refugee, who had his choice between submitting
to trial and abjuring the realm. If he chose the latter course, he
hurried, dressed in pilgrim’s guise, to the port that was assigned to
him, and left England, being bound by his oath, never to return. His
lands escheated; his chattels were forfeited, and if he ever came back,
his fate was that of an outlaw.” (Vol. II., p. 590.)
[19] I. Pollock and Maitland’s History English Law, pp. 565, 566; R. H.
1, 308; Maddox, Hist. Exch. i, 541, 568.
[20] Chamber’s Journal, Vol. 64, 1887, p. 513; Green Bag, vol. 8, p. 423.
[21] _Ante idem._ I. Reeve’s History English Law, p. 198.
[22] Mirror of Justice, c. 5.
[23] I. Reeve’s History English Law, pp. 198, 199, note, Finlason’s
edition.
[24] This term is composed of the words “frith” and “stol,” meaning “the
seat of peace.” It was a heavy stone chair, or seat and that at Beverly
was devoid of decoration, but perfectly plain, in every particular. It
has been broken and repaired with clamps of iron and we are informed that
it formerly bore a Latin inscription, which stated that: “This stone
chair is called Fridstool—that is, the Chair of Peace, to which what
criminal soever flies to it hath full protection.” Chamber’s Journal,
Vol. 64, 1887, p. 513.
Littell’s Living Age, of July-Sept., 1907, Vol. 254, p. 700, produces a
transcript of the register at Beverley, when one John Spret was entered
as a sanctuary criminal, as follows: “John Spret, gentleman. Memorandum.
That John Spret, of Barton, upon Umber, in the counte of Lyncoln, com to
Beverlay, the first day of October, the vii year of the reen of Keing
Henry the VII., and asked the lybertes of Saint John of Beverlay, for the
death of John Welton, husbondman of the same town, and knawlig hymself to
be at the kylling of the same John with a degart, the 15’ day of August.”
And thus, this tragedy, which resulted in the death of husbandman John
Welton, at the point of a dagger, in the hand of Mr. John Spret, has
caused both of these gentlemen to be known in history after a period of
many centuries, and this sad circumstance of their lives is quoted long
centuries later, to illustrate the manner of an obsolete custom.
[25] Chamber’s Journal, Vol. 64, p. 514.
[26] Violators of the first and second boundary were punished by a fine
of eight pounds; the third space by double that sum; and so on, but if
a person penetrated into the charmed circle of the altar, no fine could
save him, but he was regarded as a “botelas” man. _ante idem._
[27] Chamber’s Journal, 1867, Vol. 44, p. 171.
[28] _Ante idem._
[29] Chamber’s Journal, Vol. 44, p. 171.
[30] _Ante idem._
[31] III. Reeve’s History English Law, p. 331.
[32] 29 Ass. 34; II. Reeve’s History English Law, p. 81; Chamber’s
Journal, Vol. 44, p. 171.
Reeve says, speaking of the sanctuary at Westminster: “The resort of
felons to this place, being in the metropolis of the kingdom, must have
been very great and productive of great disorders.” _ante idem._
The sanctuaries to which special charters had been granted, were known
during the period of Henry VII., as private sanctuaries, while those that
had not received special charters were called general sanctuaries and in
distinguishing the two, a historian of that period has said:
“If a man fled to such a sanctuary as Westminster Knoll, he might remain
undisturbed for life; but if he chose to abjure within the forty days,
the coroner was to appoint him a day to do it. The law of sanctuary is
laid down in a reading of this period in the following manner: None shall
take sanctuary but _in periculo vitae_, as for treason, felony, or the
like and not for debt; for a grant or prescription to have sanctuary
for debt was against law and void. But the reading lays down a strange
quibble to evade this; for it admits, that if a man’s body was in
execution, and he escaped, and came to a sanctuary, ordained as a refuge,
and safeguard for a man’s life, he should have benefit thereof, _because
by long imprisonment his life might be in jeopardy_. If a church was
suspended for bloodshed, he who took it for sanctuary should still enjoy
it for forty days and abjuration for felony, discharged all felonies done
before the abjuration. A man could not abjure for petit larceny, however,
but only for such felonies as induced the pain of death.” IV. Reeve’s
History English Law, p. 255.
[33] 3’ Henry VII., 12; IV. Reeve’s History English Law, 253.
[34] _Ante idem._
[35] Preface of Rev. James Raine’s to the Fifth Volume of the Surtees
Society, gives the following description of the manner of claiming
sanctuary at Beverley and Durham:
“Persons who took refuge fled to the north door and knocked for
admission.... As soon as anyone was so admitted the galilee bell was
immediately tolled, to give notice that some one had taken sanctuary. The
offender was required, before the shrine of the patron saint, and certain
credible witnesses, to tell the nature of his offense, and to toll a
bell, in token of his demanding the privilege of sanctuary.... Everyone
who had the privilege of sanctuary was provided with a black gown and a
yellow cross, called St. Cuthbert’s Cross, upon the left shoulder.... If
one’s life was saved the third time, by the privilege of sanctuary, he
became permanently a servant of the church.” Chamber’s Journal, Vol. 64,
p. 514.
[36] This is the oath administered by the Archbishop of York, at
Beverley, as same is preserved in the register, according to the Harleian
Manuscript: “Ye shal be trew and feythful to my Lord Archbishop of York,
lord of this towne; to the Provost of the same; to the Chanons of this
chirch, and all other ministers thereof. Also, ye shal here gude hert
to the Baillie and Governors of this towne, to al burges and comyners
of the same. Also, ye shal bere no poynted wapen, dagger, knyfe, nor
no other wapen agenst the kyng’s pece. And ye shal be redy at all your
power if there be any debate or stryf, or oder sotham case of fyre within
the towne, to help to surcess it.... So help you God, and this holy
Evangelistes.” Chamber’s Journal, Vol. 64, p. 514.
[37] As reproduced, in Chamber’s Journal (Vol. 64, p. 514), this oath is
as follows: “This hear thou, Sir Coroner, that I M of H. am a robber of
sheep or of any other beast, or a murderer of one or mo, and a felon of
our lord, the king of England; and because I have done many such evils
or robberies, in his land, I abjure the land of our lord the king of
England and I shall haste me toward the port of such a place which thou
hast given me; and that I shall not go out of the highway; and if I do, I
will that I be taken as a robber and a felon, of our lord the king; and
that at such a place I will diligently seek for passage and that I will
not tarry there but one flood and ebb, if I can have passage; and unless
I can have it at such a place, I will go every day into the sea up to my
knees, assaying to pass over; and unless I can do this within forty days,
I will put myself again into the church as a robber and a felon of our
lord the king; so God help me and his holy judgment.”
[38] Chamber’s Journal, Vol. 64, p. 515.
[39] The Green Bag, Vol. 8, p. 425. He was buried as a martyr, in the
south transept of this abbey and was followed by Chaucer, a few years
later, who was buried at his feet. _ante idem._
[40] Littell’s Living Age, Vol. 254, July-Sept., 1907, 701.
[41] Richard III., Act V., Scene III.
[42] Chamber’s Journal, Vol. 44, p. 171.
The debate at the Council Board, over the right to take refugees from the
sanctuary, occasioned by Queen Elizabeth’s refuge to Westminster, is not
without interest, in showing the views then obtaining on this custom.
It was contended that no right of sanctuary existed, since no crime had
been committed, as the right was only extended to criminals, in fear of
their lives; that the little son had no right to sanctuary at all and
that it was a flagrant abuse of the privilege for the Queen to claim it.
Those who advocated roughly taking them away, were overcome by the mild
persuasion urged by the Archbishop of York, who counseled that the child
be obtained without force, if possible. See, Chamber’s Journal, Vol. 44,
p. 171, Speed; Sir Thomas More.
[43] Year Book, I. Henry VII., fol. 24; IV. Reeve’s History English Law,
p. 253.
[44] IV. Reeve’s History English Law, p. 254, Finlason’s note.
This is one of the many instances of the struggle going on for centuries
between the civil authority, in its attempt to narrow the right of
sanctuary and the church, to enlarge or preserve it.
[45] 21 Henry VII., Keilway, 70; IV. Reeve’s History English Law,
Finlason’s note, p. 254.
[46] Chamber’s Journal, Vol. 44, p. 170, 171; _idem._, Vol. 64, 515.
Imprisonment for debt was abolished in Scotland, in 1880, and while the
privilege still exists in form, at the places noted, in fact it has
ceased to be a necessary legal exemption, since the repeal of this law.
[47] Chamber’s Journal, Vol. 64, p. 515.
[48] This bull was confirmed by Alexander VI., and Julius II., in 1493,
and 1504. _ante idem._
[49] 21 Henry VIII., c. 8.
[50] 64 Chamber’s Journal, p. 515.
[51] 26 Henry VIII.
[52] 21 James I., c. 28.
[53] 8 & 9 William IV., c. 26.
[54] Richard III., Act III., Scene I. For discussion of this and other
references in Shakespeare, to the Law of Sanctuary, see White’s “Law in
Shakespeare,” Sec. 324, p. 354.
[55] Act IV., Scene I.
[56] 3’ Henry VI., Act IV., Scene IV.
[57] Act I., Scene X.
CHAPTER X.
ANCIENT PUNISHMENTS.
In the broader sense, punishment includes any pain or detriment suffered
in consequence of wrong-doing, but as treated of in this chapter, it
means the pain or other penalty imposed by an authority to which the
offender is subject, for a crime or offense committed.
The term punishment is properly restricted to the penalties imposed by
competent authority, for violations of law; but as the subject of the
following pages will bear evidence, it has been frequently imposed upon
the weak and the innocent, as well as upon the guilty, and instead of
being always confined to the authority acting only in pursuance of the
fixed rules of law, it has too often resulted from the arbitrary will of
someone in superior authority.
“Man’s inhumanity to man” seems ever to have been a peculiar trait of
the species and human cruelty exceeds that of all other animals, in the
same proportion that man excels the lower species. In following the bent
of his cruel impulses, man has never rect’ with good or ill, but like a
ravenous beast of prey, far fiercer “than the wolf or bear, he slays his
kind in cruel glee and sorrows he can slay no more.”
When we read the history of the punishments of antiquity, we can but
wonder that the people suffered so long and so continuously as a result
of laws which had for their foundation the passions or wickedness of
only a small per cent of the people, instead of the beneficent rules
of conduct formulated by the “cool examiner of human nature,” familiar
with the actions of the multitude and prompted by altruistic motives, to
legislate for the greatest happiness of the greater number.
Every just punishment should be limited to the necessity of defending and
preserving the liberty of the masses of society from the usurpations and
wrongs of individuals, hence, every punishment which does not arise from
such necessity is tyranny.[1]
Since the time of Beccaria men have realized that the groans of a
tortured wretch cannot recall the time past, or reverse the crime once
committed,[2] so punishments are now provided for, not to torment a
sensible being, nor to attempt to undo the crime committed, but to
prevent the criminal from doing further injury to society and to deter
others from committing similar offenses. But it was not always thus.
Torture, of the worst kind, in the handling of criminals, has been
consecrated as a time honored custom by most of the older nations of
the world. Mankind, for centuries, seemed to forget that all men were
brothers; that a man, after he is dead is good for nothing and since
punishments were invented for the good of society, that they ought to be
useful and not destructive, still they universally persecuted each other,
even to the death.
All mankind have ever detested the violence of which they may themselves
possibly be the victim, but the criminal is so far regarded as an enemy
to society, that they universally desire the punishment inflicted upon
another which they would never want inflicted upon themselves. Viewing
all other men as inconsequential in the sum total of the universe, but
each individual believing himself the center of the social unit, men have
been ever ready to play the tiger and make the alleged criminal the lamb,
because it was the other individual whose life was sacrificed.
Viewing the whole plan of society by the standards of the past, in the
punishment of criminals, it is difficulty to determine whether the
crimes against society or those of society against the alleged criminal,
have been the greater. But with the idea of reforming the criminal,
the barbarous tortures of the past have been eliminated and the trend
of modern criminologists is to further limit all punishments, not in
themselves wholly reformatory in their nature.
Excessive punishments have always increased, rather than diminished
crime, yet authority to inflict punishment has never been much concerned
about the welfare of the race or of society, as a whole, and the humane
law of the philosophers has been disregarded far too long to curb the
ingenious cruelty that has inflicted penalties and pains upon alleged
criminals, frequently wholly innocent of any crime.
The object of this chapter, however, is not to moralize about crimes and
punishments, but to contribute something to the vast fund of historical
information upon the subject of ancient punishments, with a few
illustrations of the pains and penalties inflicted during the past ages,
in the name of law, upon the unfortunate victims falling into the vortex
of the current of a past civilization and hopelessly borne on to their
destruction.
_Capital punishment, by beheading_ was not practiced by the ancient
Israelites, but was a custom of the Egyptians, Assyrians, Persians,
Greeks and Romans,[3] and the French. We find that the “chief baker,”
who incurred Pharoah’s ill-will, was accordingly decapitated;[4] John
the Baptist lost his head on the order of Herod;[5] James the Apostle
suffered a similar fate,[6] and many other of the early martyrs were
beheaded.[7]
_Burning_ to death was of pre-Mosaic authority, for we find that when
it was reported to Judah that his daughter-in-law Tamar, was with child
and had played the harlot, Judah said, “Bring her forth and let her be
burnt.”[8] This was the punishment inflicted upon a priest’s daughter,
under the Sinaitic law, for fornication,[9] and was also the form of
punishment for incest with a wife’s mother.[10]
_Drowning_ was a form of capital punishment in vogue among the ancient
Babylonians, the Jews and the Romans and more recently among the French,
English and Americans, during the witch craze in the seventeenth
century.[11]
Even before the witch craze, in England, in which death by burning and
drowning was the usual mode of ending the lives of the poor unfortunates,
accused of this hated and unprovable crime, there were precedents for the
use of drowning, as a punishment, in that country.
During the reign of Edward II. felons were put to death by drowning, for
we find that in the sixth year of the reign of that monarch, the jury
for the hundred of Cornylo, in Kent, exhibited a presentment to Hervi de
Stanton, and his associate justices itinerant, sitting at Canterbury, in
the Octaves of St. John the Baptist, importing, that the Prior of the
Christ-church in Canterbury, did, about eleven years then past, divert
the course of a certain stream, called Cestling, in which such felons as
were condemned, to death, within the before-mentioned hundred, ought to
suffer judgment by drowning.[12]
Drowning was regarded as an especially appropriate punishment for women
in Scotland, at an early day and according to Dr. Hill Burton, in 1624,
eleven gipsy women were sentenced to be drowned in the North Loch,
of Edinburgh, in the hollow where the Princess street Garden is now
located.[13]
In 1685 two women, Margaret M’Lauchlan, a widow, and Margaret Wilson,
a young girl, of eighteen, were drowned at Wigtownshire, for their
religious belief. They were bound to stakes where the swift tide of
the Solway overflows twice a day. After a partial unconsciousness, the
young girl was revived and was urged by her friends to say “God save the
King.” She refused and as the waters closed over her for the last time,
she gasped: “I am Christ’s.” And thus she gained a place in history, as
a martyr to her belief, and her young life was forfeited as a penalty
for having incurred the religious and political bigotry of a despotic
monarch.[14]
_Exposure to wild beasts_, was a common punishment of the Israelites,
and Romans, for wickedness or unfaithfulness. Darius caused Daniel to be
brought and cast into the den of lions,[15] for this was the law of the
Persians, and the King had entered a decree that it should be so, and
another ancient authority,[16] advises us that a disobedient prophet,
named Jadon, met death from God, by being cast before the lions.
_Hanging_ is one of the forms of capital punishment that has survived
for thousands of years, for we find that it was in general use among
the ancient patriarchs,[17] the Persians[18] and the Greeks[19] and has
continued as a mode of capital punishment ever since, in other civilized,
or rated civilized, countries.[20]
_Precipitation, sawing asunder, slaying by spear or sword, stoning
to death, strangling and suffocation_, were all different modes of
inflicting the death penalty, practiced among the ancient Israelites and
other ancient peoples, from the earliest time.
The children of Judah cast 10,000 Edomites from a rock to their death,
according to the second book of Chronicles;[21] even the valiant David,
painful to relate, when he took the cities of the children of Ammon,
brought forth all the people and “cut them with saws, and with harrows of
iron, and with axes”;[22] the spear, javelin or dart, was to be used on
trespassers, at the foot of Sinai;[23] the sword was taken by the Levites
against the worshipers of the golden-calf;[24] Samuel hewed Agag to
pieces with the sword;[25] stoning to death was the penalty for adultery,
blasphemy, idolatry, for false prophesy and Sabbath breaking;[26]
strangling was the proposed punishment for the Syrians, before Israel[27]
and suffocation was used both by the ancient Jews and the Macedonians.[28]
_Crucifixion_, was a refined mode of punishment used by the Jews and
Romans, in the time of the Saviour. It was borrowed by the Romans and
Grecians from the Phoenicians, Persians, Egyptians and Numidians, among
whom it was in general vogue. Alexander is reported to have crucified
two thousand Tyrians at one time, and the same number of rioters were
crucified by Varos at one time, after the death of Herod.[29]
Under Claudius and Nero, various Roman governors crucified large numbers
of robbers, thieves, and political and religious criminals.[30]
The method of crucifixion is accurately described in the New
Testament.[31]
After conviction, the victim was scourged with the _flagellum_, which was
such a severe punishment that the afflicted one frequently died before
the crucifixion occurred. In Jesus’ case, the scourging seems to have
taken place before the crucifixion, as was the custom.
The cross-bar was bound upon the back of the victim, or his head was
placed in the _patibulum_, and he was then led through the city,
accompanied by the centurions and soldiers having his execution in hand,
amid the gibes and insults of the cruel crowd. The title, a piece of
wood, covered with white gipsum, labeled with the crime for which he was
to suffer, in letters of black, was usually carried before the condemned
person, so that the curious might be advised of the cause of his death.
At the place of crucifixion, the prisoner was stripped and his clothes
given to the soldiers; he was then bound to the _patibulum_ and thus
raised on ladders, until the notch was reached in the upright piece, to
receive it, or the cross-piece was fastened to the upright post upon the
ground and then raised into an upright position, with the afflicted one
bound to the cross, with his hands nailed to the ends, there to suffer
the slow agonies of a lingering death, which might last for hours or
perhaps for days.
The shame of this torture to which the Saviour was subjected has become
not only the symbol of salvation, but the true type of that absolute
renunciation of the world which characterizes the true Christian, for
did not Christ Himself say: “If any man would come after me, let him
deny himself, and take up his cross and follow me”?[32]
_Burying alive_, was a form of capital punishment applied in Rome as a
punishment to the vestal virgins, violating their oaths of chastity and
it was also in vogue in France during the middle ages.
According to the law of Numa, the unchaste Vestal was simply stoned to
death,[33] but the cruel torture of burying her alive was devised by
Tarquinius Priscus and inflicted from his time forward.[34]
On her conviction, the poor creature was stripped of her _vittae_ and
other indicia of office and after being scourged, was attired like a
corpse and placed in a closed litter, and then borne through the Forum,
attended by her weeping relatives and friends, with all the ceremonies
of a real funeral, to the _Campus Sceleratus_, within the walls of the
city, near the Colline gate. The vault, underground, was furnished
with a couch, a lamp, and a table, with a little food. The pontifex
maximus offered up a prayer to Heaven for the culprit and having thus
performed his sacred office, delivered her to the executioner, who led
her down into the subterranean cell and drew up the ladder and filled
the pit with earth even with the ground,[35] thus forever consigning
to mother earth the body of her wayward daughter, who, in pursuance of
her God-given instincts, had violated the unnatural law of the barbarous
pagan days of ancient Rome.
The gallant French gentlemen also reserved this horrible punishment for
women and we read that during the year 1302 by order of the Bailli of
Sainte-Genevieve, a woman was buried alive for some petty thefts which
she had committed.[36] Philip Augustus is said to have put a French
provost to death in this cruel fashion, because of the crime of perjury,
regarding a transaction in connection with a vineyard[37] and in the
thirteenth century in Bigorre, this punishment was inflicted for murder,
the murdered and his murderer being interred in the same grave.[38] One
performing the unnatural crime was also buried alive, in England, at an
early day, according to Fleta.[39]
_Drawing and quartering_, is of Egyptian and Roman origin, for we find
that it existed at Rome five hundred years before Christ and is mentioned
in the Twelve Tables.[40]
Hanging, drawing and quartering is said to have been first introduced in
England in the case of William Maurice, a pirate, in 1241,[41] although
it afterwards became quite common, as a punishment for treason.
According to the terms of a sentence imposed by Lord Ellenborough, the
criminal convicted of treason to be thus punished was addressed as
follows: “You are to be drawn on hurdles to the place of execution,
where you are to be hanged, but not until you are dead; for, while still
living, your body is to be taken down, your bowels torn out and burnt
before your face; your head is then to be cut off and your body divided
into four quarters.”[42]
Hugh Spenser, the favorite of King Edward II., was put to death at
Bristol, in 1326, and his body was quartered, as was the custom of the
period, in similar cases, and his head was sent to London, while each
quarter of his body was sent to each of the four principal towns of the
kingdom.[43]
On the execution of the Jesuit, Garnet, in England, in 1606, James I.,
who was more compassionate in this case than he was in the cases of
witchcraft, where no punishment could be found too severe, gave orders
that he should not be cut down until he was dead, so that he might be
spared the tortures of drawing and quartering.[44] But no such mercy
was shown to Guy Fawkes, who was tortured and drawn and quartered, the
same year, after he was taken with the burning match in his hand, in his
attempt to blow up the king and his parliament, in what was known as the
gunpowder plot.[45]
During the thirteenth century, in England, the usual punishment for petty
treason was hanging and drawing for a man and burning for a woman.[46]
_Boiling in oil_ during the reign of Henry VIII.,[47] was a punishment
provided for poisoners.
Under the reign of this monarch, the power of the Crown was extended to
cover powers not before recognized and while it is difficult to concede
how citizens reared under the broad influence of the common law, could be
brought to consent to such unusual and cruel punishment for any crime,
the inhuman crime which brought about this harsh statute was such as to
call for unusual handling, if not for such barbarous punishment as this
act provided.
One Richard Roose had placed poison in a vessel of yeast in the Bishop of
Rochester’s kitchen and as a result of eating bread in which this yeast
was used, seventeen persons in the family of the Bishop and others of
his friends were poisoned. The enormity of the crime caused wide-spread
indignation and such crimes were made treason and the offender subject
to attainder. Roose was ordered to be boiled to death and in order to
deter others similarly situated from perpetrating such a cruel crime,
it was also provided by the act that henceforth, every wilful murder by
poisoning, should be high treason and that all such offenders should be
boiled to death.[48]
Shakespeare makes the indignant Paulina, refer to this statute, in
her reproachful speech to the Lords, after the good Hermione’s
incarceration, in Winter’s Tale, when she asks:
“What studied torments, tyrant, hast for me?
What wheels? racks? fires? what flaying? boiling
In leads or oils? What old or new torture
Must I receive, whose every word deserves
To taste of thy most worst?”[49]
Margaret Davy, a young woman, convicted of murder by poisoning was also
boiled to death, as provided by this statute, in 1542,[50] but this was
the last victim to suffer such inhuman punishment and the act was soon
afterward repealed.
The misguided efforts of the Church of Rome to punish heresy by use of
the _Inquisition_, brought about untold suffering and misery in the world.
_The Inquisition_, was a tribunal of the Roman Catholic Church, for the
discovery, repression, and punishment of heresy, unbelief and other
offenses against religion. The emperors, Theodosius and Justinian,
appointed officials known as Inquisitors, to look out and punish such
offenders. They proceeded however in the name of the Emperors, in the
secular courts, and no regular tribunal for the handling of this kind of
alleged criminals, existed until the year 1248, after the fourth Lateran
Council, held in the reign of Innocent III., when Innocent IV., established
a permanent court for the prosecution and punishment of this class of
offenders.
The prosecutions under this constitution were purely in the
ecclesiastical courts, and for the next century, in France, Italy,
Spain and Germany, the Pope, by appeal, regulated the severity of the
punishments inflicted by the local authorities and the punishments were
not so severe as they afterwards became.
In Spain, during the reign of Ferdinand and Isabella, on account of an
alleged plot to overthrow the monarchy, by the Jews and Heretics, in the
year 1478, on application to Pope Sixtus IV., they were permitted to take
over, as it were, the whole tribunal formerly handled as a Church affair,
into the hands of the State, and with this new regime, the Spanish
Inquisition had its origin.
Inquisitors were now appointed by the Crown, instead of the Church and
under the career of Thomas de Torquemada, in 1483, the reign of terror
commenced in Spain. Llorente, the historian of the Inquisition, places
the number of persons burned to death, during Torquemada’s tenure of
office, in sixteen years, in Spain, at 9,000, and during the term of
office of the second head of the Inquisition, Diego Deza, in eight years,
1,600 met a similar death, by fire, as this was the customary punishment
inflicted upon this hated class of innocents who opposed the ruling
powers in Church and State.[51]
The procedure of the Inquisition is not without interest. The person
suspected of heresy or unbelief, was arrested and thrown into prison,
to be brought to trial when it suited the pleasure of his judges.
The proceedings of the trial when the unfortunate one was brought
into court, were secret; he was not faced with his accusers, nor were
their names disclosed. The evidence of a guilty accomplice, without
corroboration, was received against the accused and the person undergoing
trial was liable to be put to torture, in order to extort a confession
from him. When convicted, the punishment was death by fire, or on the
scaffold, imprisonment in the galleys for life, or for a term of years,
with forfeiture of his property, and civil infamy, if the offense was
deemed not of sufficient gravity to justify burning to death.[52]
After confession, under torture, the prisoner was customarily remanded
to prison and when brought before the judge, if he persisted in his
profession, he was condemned. If the confession was withdrawn, he was
tortured again and if he recanted a second time, he was tortured a third
time, for while the theory was that he could not be convicted, unless he
let his confession stand, he was tortured until he confessed and was not
allowed to voluntarily retract it, oftentimes.[53]
Three judges were necessary to approve the infliction of torture to
extract evidence from a person accused, in the reign of Ferdinand and
Isabella,[54] but this law was often violated and the strappado, the
scourge, hanging the accused by the arms, while his back and legs were
loaded with heavy weights, fire, applied to the soles of the feet and
pouring water down the throat were a few of the many tortures applied[55]
to extort confessions from the poor unfortunates who fell into the hands
of these religious zealots, imbued with a superhuman inclination to
torture their fellow-men.
Of course the subject of the Inquisition is too large a field to attempt
to do more than refer to its influence upon secular law in these pages,
for while it continued unabated for centuries in countries subject to
the Church of Rome and was not abolished in Spain, until the reign of
Joseph Bonaparte in 1808,[56] in inaugurating a system of punishment for
extracting evidence from the accused, its influence was wide-spread in
all other countries, where the same system of punishment was carried and
with time the same vile procedure was used in most other countries of
Europe, in one form or another,[57] and with its examples of torture,
which were gradually adopted in other countries, the equally baleful
influence of the secret procedure, which was exemplified in the Star
Chamber in England and the _Chatelet_ of Paris, with the accompanying
inquisitorial process, followed in the wake of this hateful institution
of the middle ages.[58]
_The Grand Chatelet of Paris_, as the seat of the criminal tribunal of
the realm, has a record second to no other criminal court of the same age
for atrocious punishments inflicted upon the poor unfortunates who were
brought before the court, seeking justice.[59]
It was the custom to torture all malefactors, or alleged criminals,
brought before the criminal division of the _Chatelet_ of Paris, in the
fourteenth century. The customary procedure was accordingly divided
into two classes of cases, those known as _ordinaire_ and those called
_extraordinaire_. In the former class of cases inquests were held to
determine the guilt of the accused and in the latter inquisition was had,
in which torture was habitually employed to secure a conviction.[60]
The procedure was left entirely to the discretion of the criminal judge
and in a short time the judge rarely found a case for inquest, but all
cases were treated as within the rule _proces extraordinaire_ and a merry
chronicle of crime against criminals was here inaugurated, for long and
tedious years.[61]
The only redeeming feature of the procedure of this court, was the
universality of its punishments, for noble blood was made to flow equally
with the plebeian, and none were exempt from the torture, who were
brought before this court. If the culprit denied the alleged crime, he
was tortured at once, to secure a confession and if he confessed he was
tortured for confessing. On the other hand, if he failed to confess,
there was no limit to the torture inflicted to extract a confession from
him, so frequently it happened that in the effort to find out if a crime
were really committed the poor unfortunate was killed by the torture to
which he was subjected.[62]
In 1338 one Jehannin Maci, was arrested and brought before this cruel
court for stealing a brass pot, found in his possession. After torture,
he confessed the crime and was drawn on a hurdle and hanged.[63]
Gervaise Caussois—peace to his ashes—was brought before this august
tribunal for stealing some iron tools and to induce him to confess he was
tortured and promptly confessed. Thinking he might be guilty of other
offenses, he was tortured again and then under the strain of the pain he
suffered, he confessed to other petty crimes, when he was again tortured
by use of the _tresteau_, when he again confessed to another petty
misdemeanor when the judges mercifully caused him to be hanged, without
more ado, thus ending his misery.[64]
In 1390 poor Fleurant de Saint-Leu, was arraigned before this heartless
tribunal for the awful crime of stealing a silver buckle. He denied the
crime and was twice tortured, with increasing severity, when he finally
confessed, but protested that it was his first offense. The merciful
judges, out of the goodness of their hearts, decided this offense, being
the first, did not merit death, so on the same day he was tortured
thrice, to ascertain if he was not guilty of some other offense for
which he could be killed; this failing to bring the desired result, he
was again twice tortured, when he admitted that three years before he had
unwittingly married a prostitute, when he was afterwards hanged, as this
was found to be a sufficient offense, together with the stealing of the
buckle, to justify the death penalty.[65]
Poor Marguerite de la Penele, accused of stealing a ring, was tortured
until she confessed and as she could not satisfy the human hyenas who
were trying her, for some money found upon her person, she was again
severely tortured and although no further confession was extracted from
her she was buried alive.[66]
The question _ordinaire_ and _extra-ordinaire_, as put to the wretches
brought before this criminal court at Paris, was to be answered by the
accused while fastened to the wall, on a trestle or sliding table, with
his wrists fastened in two rings; his mouth was forced open with a horn
and water was poured down his throat, until he answered the question
whether or not he was guilty of the offense charged against him.[67]
Another form of torture used in the _Chatelet_ at Paris, was what was
called the “boots,” being solid boards, pierced with holes, encasing
the legs, up to the knees. Ropes were inserted through the holes and
drawn so tight, by means by pegs of wood, driven into the holes, as to
almost break the bones and twist the flesh off the legs, if the accused
persisted in refusing to confess the crime charged against him.[68] This
horrible and barbarous practice was not completely abolished in France,
until the year 1788, when the monarchy repealed the law authorizing such
cruelty, for the alleged reason that under such stress of punishment men
would confess to anything.[69]
_The Guillotine_ was not a French invention, as generally supposed,
but was imported from Italy, where a similar instrument, known as the
_Mannaya_, had been used for centuries before it was used either in
France or England.[70] It had been used in England long before it was
used in France and was known as the _Halifax Maiden_, because of the
special charter, giving this town a right to use it for petty larceny of
any article exceeding thirteen halfpenny.[71] It was used in France in
the sixteenth century and at Toulouse, in 1632, it was the engine which
accomplished the execution of the Duc de Montmorency.[72] Doctor Joseph
Guillotin brought the same engine of death before the National Assembly,
in December, 1789 and he is generally recognized as the inventor of this
terrible machine, which was used to decapitate so many of the nobility
during the terrible French Revolution,[73] but a similar instrument had
executed thousands in Italy centuries before it was known or used in
France.[74]
_The Massola_ was used in Italy, at an early date, along with the
_Mannaya_ or guillotine, as it was afterwards called, in France, and by
use of the former machine, the criminal was stunned with a blow from a
mace, much as the butcher slaughters the ox or hog by striking him on the
head and then while stunned, his throat was pierced with a long knife and
his chest was ripped open.[75]
But let us turn from the contemplation of other instruments used to
accomplish the death of the criminals of the middle ages, and examine
some of the milder forms of punishments in vogue.
These were only some of the most prominent methods of inflicting
capital punishment upon alleged criminals, among the old Israelites,
Persians, Greeks and Romans, and other lesser punishments, such as
mutilation consisting in blinding,[76] cutting off the hands or ears,[77]
branding,[78] plucking off the hair,[79] flaying,[80] scourging with
thorns,[81] the stocks, stripes,[82] the wheel, the rack, the comb with
sharp teeth, the burning tile, the low vault in which the culprit was
bent double, the heavy hog-skin whip, and the injection of vinegar into
the nostrils, were a few of the lesser punishments inflicted by these
and other peoples for many long and tortuous years, upon all classes of
criminals and accused persons.[83].
_Blinding_, under the Mosaic dispensation, was claimed to have been
authorized under the law of retaliation, “an eye for an eye,”[84] etc.,
but it was seldom used among the patriarchs in old Israel.
The Assyrians and Babylonians used this means of torturing the criminals
convicted of rebellion or revolt, in order to prevent them from doing
further harm and to furnish an example to others of the enormity of the
punishment for such an offense against the government.[85] We read in
the book of Esther that such criminals were not permitted to look upon
the king,[86] and in Persia this method of punishment was inflicted for
rascality, thieving and rebellion.[87]
According to the Code of Hammurabi, adopted some 2,500 years before
Christ’s time, a surgeon of Babylon who performed an unsuccessful
operation, lost the hand that operated upon the patient and for other
offenses, mutilation and blindness was provided for by this ancient code
of laws.[88]
William the Conqueror prohibited his nobles from inflicting the death
penalty upon criminals who formerly suffered death by hanging, but
in lieu of this more humane punishment, he authorized that criminals
convicted of certain felonies should be blinded, by having their eyes
pulled out; they were subjected to castration and to mutilation, by
having their _hands and feet cut off_, according to the greatness of the
offense, to the end that they might live and furnish a horrible example
to others committing such crimes.[89]
According to Wigorn, in his annals, certain Welchmen, convicted of
treason, in the eleventh century, had all these several kinds of
punishment inflicted upon them.[90]
Fox, in his work on Martyrology, reports a miracle in the case of
Elivard, of Weston Regis, in Bedfordshire, who, being convicted of
stealing a pair of hedging gloves and a whetstone, in the reign of Henry
II., lost his eyes and genitals, and through his devout prayers, at the
shrine of St. Thomas of Canterbury, they were restored to him again.[91]
This punishment by blinding and mutilation continued but a short time, in
England, however, for King Henry I., in the year 1108, in the ninth year
of his reign repealed this law and provided hanging for felons convicted
of theft or robbery,[92] who had formerly been subject to the punishment
of blinding or mutilation, by this harsh law of William the Conqueror.
In Switzerland, at an early day, blasphemers were subject to having their
_lips and tongue cut off_[93] and under the custom of Avignon, in 1243, a
perjurer was liable to punishment by having his lips and nose removed.[94]
_Cutting off the ears_ was a punishment inflicted upon religious and
political criminals in England, as late as the seventeenth century and
the notable case of Bastwick, Burton and Prynne, who had their ears
removed all at one time, in the Palace Yard, in London, in the year 1637,
illustrates the barbarous cruelty then obtaining as to this class of
criminals.
The prisoners were all favorites with the crowd, who strewed flowers and
nose-gays around them, at the place of execution. The sheriff commenced
with Burton, who was an especial favorite with the by-standers and when
he removed each ear the people wept and groaned and roared as if each one
in the assembly had his own ears removed. Bastwick loaned his own knife
to the officer and made use of his professional information to advise him
just how to remove his ears, so as to injure him the least and asked him
to lop them close, that it might not be necessary for him “to come there
again.” Prynne had had his ears roughly cropped off three years before
and when the officer again attempted to remove what remained, it gave him
great pain, but the stern old Puritan endured it without a groan, such
was the religious zeal with which they were all three sustained in this
act of martyrdom. After the fearful ordeal was completed they were all
three returned by the officer to the prison,[95] and thus ended another
fearful example of misguided authority and religious bigotry, in thus
pillorying and torturing three patriotic citizens who violated no law and
who had committed no other offense than to speak plainly and then dared
to refuse to bow the knee to an authority they did not recognize.
_Branding with a hot iron_, was a punishment inflicted by the Persians,
upon the class of criminals who were deported, in order that they could
subsequently be identified and to furnish an example to others of the
fact that they had paid the penalty of the law as a result of their
misdeed.[96] In Biblical days, when burning was inflicted as a punishment
for adultery or fornication, branding on the forehead was also used, as
a mark of shame.[97] Slaves were sometimes branded on the hand, by the
ancient Jews,[98] much as horses are branded by the owner, in the western
country, to identify the animal, but this was not in accordance with the
Mosaic law, for such disfigurement was forbidden by the code of the old
Israelites.[99]
Formerly, in England, branding was used in the case of all clergyable
crimes, by burning in the hand, but this law was repealed in 1829. In
the middle ages, in England, branding with a hot iron, was a mode of
punishment used for various offenses. The iron used had the form which
it was desired to leave on the culprit’s skin. It has not been in use
for years, except in desertions from the army or navy, and this form
of branding is regulated by statute and of late years ink, or other
material is used, instead of a hot iron. By the Mutiny Act, of 1858,[100]
it was provided “On the first and on every subsequent conviction, for
desertion, the court-martial, in addition to any other punishment, may
order the offender to be marked, on the left side, two inches below the
arm-pit, with the letter D, such letter not to be less than an inch
long, and to be marked upon the skin with some ink or gun-powder, or
other preparation, so as to be visible and conspicuous, and not liable
to be obliterated.” This, in old England, as late as the Victorian age,
shows the early training of the English upon the custom of punishment by
branding.
_Plucking off the hair_, or scalping, was not always confined to the
American Indians, but according to the inspired word of the Jews, it was
a form of punishment, in ancient Israel, inflicted upon Jews who had
indulged in mixed marriages.[101]
According to the prophet, in Isaiah, scalping, as a judicial practice was
common in his time, for he says: “I gave my back to the smiters and my
cheeks to them that _plucked off the hair_: I hid not my face from shame
and spitting.”[102]
And according to the Biblical account of this ancient and severe
punishment, inflicted upon criminals in old Israel, they were not as
compassionate as the American Indians, who first killed their man, then
removed the scalp with a knife, but they tore off the hair in such a
brutal and barbarous manner, as to remove the skin by main force, with
the hair, without the use of a knife or other instrument to augment or
ameliorate the suffering of the criminal.[103]
_Flaying_, was a punishment in vogue among the Persians and Assyrians,
and according to Rawlinson, the Assyrians would flay the victim, even
after life was extinct[104] and the Persians were accustomed to flay and
then crucify the criminals and Herodotus states that they used the skins
of human beings thus obtained.[105]
Along with this atrocious punishment of flaying, the Persians also seem
to have been addicted to the recall of judges,[106] for Herodotus tells
how King Cambyses not only recalled an unpopular judge, known as Sisamnes
but actually flayed him alive, and covered the judgment-seat with his
skin, as a warning to the next judge to be more careful in his judgments
and decrees.[107]
Manes is said to have been flayed alive, by Behram, king of Persia, in
the year 277 and his skin was afterwards stuffed with straw, much as
modern taxidermists stuff the skins of wild animals, and in this shape it
was posted at one of the gates of Djondischaour.[108]
In the sixth century Chosroes punished Nacoragan, one of his generals by
flaying him alive, on account of his cowardice and his skin, when torn
backward off his body, from his head to his heels, retained the form of
the limbs, from which it had been stripped, and in this manner, it was
sown up and inflated and exposed on a high projection, as a terrible
example to other soldiers, of the punishment they would be subjected
to if also guilty of cowardice in the discharge of their duty as
soldiers.[109]
Flaying is of rare appearance in Europe, but one or two cases are
recorded. Philip the Fair is said to have inflicted such punishment upon
the lovers of his sister-in-law, in 1314, and Pope John XXII., after the
conviction of Hugues Geraldi, Bishop of Cahors, in 1317, for sorcery,
handed him over to the Judge of Avignon, who caused him to be flayed
alive and then torn asunder by four horses, after which his remains were
burnt.[110]
_The Wheel_ was used as a method of punishment in France and England
and other countries, during the middle ages and down to a comparatively
recent period. St. Catherine, of Alexandria is said to have been put to
death on a wheel, with jagged edges or spikes, which tore and cut her
tender limbs, after the fashion of a modern chaff-cutter. According to
the report of her case, the wheel was shattered, during the torture, by
Divine Grace, hence the embroidered tunic worn by the Knights of Mount
Sinai, a religious order, instituted in her honour, in 1063, representing
a broken wheel, with spikes.[111]
Bouchard, who was implicated in the murder of Charles le Bon, Count of
Flanders, in the twelfth century, was bound to a wheel suspended in
mid-air, so that the vultures could pluck out his eyes and otherwise
torture him. After his eyes were torn from their sockets and his face
slit and torn by the sharp beaks of the birds of prey, he was finally put
out of his misery, by darts and javelins, shot into his quivering body,
by the blood-thirsty mob below.[112]
_Scourging with thorns_, was another form of punishment inflicted upon
the peoples of other tribes, by the good old Jewish patriarchs.
Gideon threatened that when the Lord of Israel should deliver Zebah and
Zalmunna into his hands that he would tear their flesh with the thorns of
the wilderness and with briars.[113] And according to the Divine word,
when the men of Succoth were delivered into his hand he took the elders
of the city and with briars and thorns, he scourged them.[114]
Knotted sticks, or ropes, with thorns, or iron points were customarily
used as instruments of chastisement by the Jews, when they were
successful in subjugating another race of people[115] and they did not
hesitate to apply the scourge on all occasions, as they regarded this as
a method of teaching foreign nations their strength and their power to
punish, so that it would be advertised abroad and cause other timorous
nations to voluntarily submit to their authority.
David smote the Moabites with a line and cast them down to the ground
and he scourged them and they became his servants and brought him gifts,
to avoid being further scourged in this manner.[116] And he brought the
children of Ammon out from the cities and not only scourged them with
thorns and knotted sticks, with iron pikes in the sticks, but subjected
them to saws and arrows of iron and made them to pass through the brick
kiln.[117]
_The Bilboes_, were used in Spain and England, at an early day, for
slanderers and other petty offenders. By means of this instrument, the
culprit was held with his feet aloft, on his back, exposed to the public
gaze and ridicule of the passers-by.
The American Colonists made frequent use of this instrument of punishment
and we read that in good old Massachusetts, in August, 1632, one “James
Woodward was sett in the bilbowes, for being drunk at the Newetowne,” the
name Cambridge then went by.[118]
_The Ducking-stool_, a stool or seat, arranged at the end of a rope tied
to a long pole, so it could be lowered into the water, was used as a
punishment for “scolds” and “slanderers” in old England and by the early
American Colonies. Virginia, Maryland and other of the American Colonies,
provided for the use of the ducking-stool and other similar correctionary
punishments, by statutes.[119]
As late as the year 1811, in Georgia, one Miss Palmer was sentenced to
be ducked, as a scold or slanderer, in the Oconee River[120] and in
Washington, according to the interesting book on “Curious Punishments
of By-Gone Days,” by Alice Morse Earle, almost in our own day, Mrs.
Anne Royal, Editor of the “Washington Paul Pry,” was sentenced before
Judge William Cranch to suffer punishment by being ducked in the Potomac
River.[121]
_The Stocks_ graced each parish, in England, at an early day and along
with the _pillory_ and the _rack_, were used on different classes of
petty criminals. Many criminals were also punished by the American
Colonists by use of the stocks and the pillory, and in Massachusetts, New
Hampshire, Virginia and Maryland, the manners and morals of many an early
patriot were mended by the use of these instruments.[122]
_The Rack_ was a wooden framework, in which the culprit was fastened and
by means of ropes and pulleys his arms and legs were violently stretched
and pulled until the tension caused the most intense pain and frequently
the bones were broken by the use of this fearful appliance. According to
Lord Coke, the appliance was first introduced into the Tower, in England,
by the Duke of Exeter, in 1467, and for this reason it was called, “The
Duke of Exeter’s Daughter.” The Tower rack was in the long vaulted
dungeon below the Armoury and continued as an instrument of torture for
many centuries. During the reign of Elizabeth, it was a customary means
of torture and in 1580 the Jesuit Priests concerned in the alleged Jesuit
Invasion, were terribly racked to compel them to disclose the names of
their leaders.[123]
Shakespeare makes frequent references to this instrument of torture, so
generally used during his time, in England. Thus, in Merchant of Venice,
Portia refers to the enforced statements of Bassanio:
“Ay, but I fear, you speak upon the rack,
Where men enforced do speak anything.”[124]
_The Brank_, known as the “Scold’s bridle,” was an iron hood, with a
ring, around the face, with a flat tongue of iron to be placed in the
mouth, over the tongue. It was applied, with the “scold” or slanderer
tied in a public place, where she was subjected to the ridicule of the
passers-by and was generally used to correct scolds and fussy women,
for many years, in both England and America. It was used on the poor
unfortunates during the Salem Witchcraft craze and many an old dame in
good old England was made to bridle her tongue and desist from gossiping
or henpecking her husband, because of the fear of the “scold’s bridle”
and the gag, used indiscriminately, in all such cases.[125]
Fortunately, with the dawn of better days, this torture system began to
decline and in most civilized countries, such “crimes against criminals”
are now but curious and quaint, yet oft-times terrible and fearful
examples of the customs and procedure of other days.
The strange thing is that such things lasted as long as they did in a
growing, increasing world of knowledge, with men who sought the truth and
attempted to attain the higher ideals and who should have been imbued
with the love of their fellow-man, which the sufferings and mistakes of
the past had, for centuries, led them to emulate.
With the striking example in history of the horrible punishment by
Crucifixion, all men now dread to think of the time when innocence and
goodness could be so crucified, yet for two thousand years, in the slow
evolution of the human race, other innocents and good men and women have
been tortured and racked by men and women holding the superior power and
authority over the masses, who through superstition and delusion, were
led to endorse the cruel domination of such misused force.
When we stop and contemplate the enormity of “Man’s inhumanity to man,”
as recorded in the lessons of the past, “the marvel is that man can
smile, dreaming his ghostly, ghastly dream.”
The basis of such misanthropy lies in the fact that criminals have been
treated as enemies, to such an extent that mankind has warred upon them
and committed deeds of war, when, in point of fact, the alleged criminal,
frequently was less guilty than his judges, and, if guilty, he was only a
mistaken man, needing correction, but not torture or death, to teach him
the better path to tread. Would that future generations might be fully
emancipated from the selfish creed which calls that good, which works
_me_ weal and holds that ill, which _me_ alone doth harm or hurt.
For our lives, like ravelled skeins, cross back and forth, connect and
blend,
“They change with place, they shift with race; and, in the veriest
span of Time,
Each Vice has worn a Virtue’s crown; all Good was banned as Sin or
Crime.”
FOOTNOTES:
[1] Justice is the bond which keeps the interest of individuals united
and without this virtue men would return to their original state of
barbarity. Marquis Beccaria, on “Crimes and Punishments,” 9.
Carlyle has well said: “Cruel is the panther of the woods, the she-bear,
bereaved of her whelps; but there is in man a hatred crueler than that.”
[2] Beccaria’s “Crimes and Punishments,” p. 41.
The three theories regarding lawful punishment, are, retribution,
prevention and reformation. According to the first of these theories, the
object of punishment is the vindication of the law upon the offender, by
the infliction of such pain or penalty as his crime deserves, hence, the
motto for this theory, might be properly said to be Justice. The second
idea, makes prevention of further crime, the sole object, the criminal
being placed where he can do no further wrong to society, and the motto
of this school of legal philosophers, can therefore properly be said to
be protection. The third and by far the most philanthropic doctrine of
punishment regards the object of correction as the primary one to be
attained and that all punishment should cease when the criminal has been
reformed. The motto for the last school of philosophy, might properly be
said to be Brotherly Love.
[3] Rawlinson’s “Ancient Monarchies.”
[4] Genesis, XL., 19, 22.
[5] Matthew, XIV., 8, 10.
[6] Acts, XII., 2.
[7] Revelation, XX., 4. A common punishment during the French Revolution.
[8] Genesis, XXXVIII., 24.
[9] Leviticus, XXI., 9.
[10] Leviticus, XX., 14.
[11] John’s “Babylonian Laws,” etc., Josephus; Matthew, XVIII., 6.
The Emperor Tiberius, after torturing the victims of his wrath, cast
them into the sea, where they were drowned. Sueton. Tiberii, lxii; Lea,
“Superstition and Force,” (3 ed.) p. 377.
In France, death by drowning was inflicted upon the incontinent, as late
as the sixteenth century and it was revived again during the revolution
by the infamous Carrier, at Nantes, in the eighteenth century.
Ninety priests were loaded into the _gabare_ and sunk in the river
Seine. Then a hundred and thirty-eight persons were similarly drowned,
but the _gabare_ was soon done away with and men, women and children
were stripped naked and thrown into the river, in broad daylight and not
even under the cover of darkness. They were tied together, feet and feet
and hands and hands, and in their hideous death struggles they churned
the water, for the edification of the cruel crowd, until the last poor
struggler had sunk to his final rest. (See article by W. H. Davenport
Adams, “Pains and Penalties,” in The Gentleman’s Magazine, Vol. 46, p.
362.)
[12] Herbert’s Antiquities (1804), 154; Ex. vet. cod. M. S. pene’s Rog.
Twysden bar. p. 108.
[13] Gentleman’s Magazine, Vol. 46, p. 501.
[14] Archibald’s Stewart’s “Wigtoun Martyrs.”
[15] Daniel, VI., 16.
[16] Josephus, Ant. VIII., IX., 1.
[17] 2 Samuel, IV., 12.
[18] Rawlinson’s Anc. Mon. i, 477; Layard’s Ninevah and Babylon, 295 note.
[19] Herodotus, iii, 159; Josephus, Ant. VI., XIV., 8.
[20] Beccaria’s “Crimes and Punishments.”
[21] 2 Chronicles, XXV., 12.
[22] 1 Chronicles, XX., 3.
[23] Exodus, XIX., 13.
[24] Exodus, XXXII., 27.
[25] 1 Samuel, XV., 33.
[26] Hasting’s Dict. Bible, vol. I., p. 527.
[27] 1 Kings, XX., 31.
[28] Rawlinson’s Ancient Monarchies, iii, 246.
Hanging was ordained by the Laws of Ina, in England, twelve hundred years
ago. (Herbert’s Antiquities, p. 153.) Until 1783 Tyburn Tree, at the west
end of Oxford Road (now street), was the usual place for execution of
felons by hanging, in England.
[29] Josephus, Ant. XVII., X., 9.
[30] _Idem._, XX., V., 2.
[31] John, XIX.
[32] Matthew, XVI., 24; Mark, VIII., 14; Luke, IX., 23.
All authorities agree that of all deaths crucifixion was the most
abhorrent, not only because of the pain resulting, but also because
of the shame of such a death. Cicero, in his Oration against Varres,
declared that it was impossible to find a fit word to describe such an
outrage as the crucifixion of a Roman citizen, yet the gentle Galilean
suffered this horrible death, with perfect resignation.
[33] Cedrenus, Hist. Comp. p. 148, 259.
[34] Dions, iii. 67: Zonaras, vii, 8.
[35] Dions, ix, 40; Smith’s Dict. Gr. & Rom. Ant. By a beneficent law,
the poor lady’s paramour was simply scourged to death, for his complicity
in her awful crime.
[36] Gentleman’s Magazine, Vol. 46, p. 366.
[37] _Ante idem._
[38] _Idem._, p. 367.
[39] Fleta, p. 54; II. Pollock and Maitland’s History English Law, p. 556.
[40] Rawlinson’s _Anc. Mon._; Niebuhr, ii, 313.
[41] Gentleman’s Magazine, Vol. 46, p. 368.
[42] _Ante idem._
[43] Gentleman’s Magazine, Vol. 46, p. 496.
[44] _Ante idem._, p. 368.
[45] Green’s History of England.
[46] Select Pl. Cr. pl. 191; Munim. Gildh. i, 101; II. Pollock and
Maitland’s History English Law, p. 511.
[47] 22 Henry VIII. c. 9. This statute was passed in 1531.
[48] IV. Reeve’s History English Law, p. 427.
[49] The Winter’s Tale, Act III., Scene II.; White’s “Law in
Shakespeare,” p. 186, Sec. 146.
[50] Gentleman’s Magazine, Vol. 46, p. 364.
As late as the sixteenth century, in England, counterfeiters were
punished by being thrown into boiling water. Gentleman’s Magazine, Vol.
46, p. 364.
[51] Llorente, ii, 147, 237.
[52] Lea’s “History of the Inquisition.”
[53] Lea’s “Superstition and Force,” (3 ed.) p. 404.
[54] Lea’s “Superstition and Force,” (3 ed.) p. 409.
[55] _Ante idem._ 407, 409.
[56] Llorente’s _Istoria de la Inquisition_; Lea’s “History of the
Inquisition.”
[57] _Ante idem._
[58] Lea’s “Superstition and Force,” (3 ed.) 451.
[59] Du Cange’s _Questionarius_.
[60] L. Tanon, Registre Crimenel de la Justice de S. Martin-des-Champs,
Introd. p. 85.
[61] _Ante idem._
In applying the ordinary and extraordinary question, in France, by
means of the _estrapado_, an iron key was placed between the palms of
the accused’s hands, and they were tied behind his back and, by means
of a rope passed through a pulley, in the ceiling, he was raised twelve
inches above the floor with a weight of one hundred and eighty pounds
to his right foot. This was the “ordinary” question. In applying the
“extraordinary” interrogation, the same process was used, but the accused
was raised up to the ceiling, with a two hundred and fifty pound weight
tied to his foot, in a running line, two or three times, with the result
that he usually swooned before the ceiling was reached the last time.
(Gentleman’s Magazine, Vol. 46, p. 504.)
[62] Lea’s “Superstition and Force,” (3 ed.) 441, 442.
[63] Registrae Criminel de Chatelet de Paris, 1, 36.
[64] _Ante idem._, p. 36.
[65] Register Criminal du Chatelet de Paris, 201, 209.
[66] _Idem._, p. 322.
[67] Lalanne, Recueil des anciennes Lois Francaisse, tome xx, pp. 284,
etc.
[68] _Ante idem._
[69] Article by W. H. Davenport Adams, in Gentleman’s Magazine, Vol. 46,
p. 506, entitled “_Pains and Penalties_.”
[70] History of Jean D’Auton; Holinshed’s History.
[71] Holinshed; Gentleman’s Magazine, Vol. 46, p. 371.
[72] _Ante idem._
[73] The Gentleman’s Magazine, Vol. 46, p. 372.
[74] _Ante idem._
[75] The Gentleman’s Magazine, Vol. 46, p. 370.
[76] Exodus, XXI., 24; 2 Kings, XXV., 7; Rawlinson’s Anc. Mon.
[77] 2 Samuel, IV., 12; Rawlinson’s Anc. Mon. iii, 7.
[78] Rawlinson’s Anc. Mon. iii, 194.
[79] 2 Samuel, X., 4.
[80] Rawlinson’s Anc. Mon. i, 478; iii, 246; Herodotus, IV., 64.
[81] Samuel, VIII., 2; XII., 31; Stanley’s History Jew. Ch.
[82] Leviticus, XIX., 20. 2 Corinthians, XI., 24; Josephus, Ant. IV.,
VIII., 21.
[83] Lea’s “Superstition and Force,” (3 ed.) 375.
[84] Exodus, XXI., 24; Leviticus, XXIV. 20.
[85] John’s “Babylonian Laws,” etc.; Rawlinson’s _Anc. Mon._
[86] Esther, VII., 8.
[87] Rawlinson’s _Anc. Mon._ Josephus, _Ant._
[88] John’s “Babylonian Laws,” etc.
[89] Herbert’s Antiquities, p. 153; Michelet.
[90] Flor. Wigorn, Annals, _Ann._ 1098.
[91] Fox’s Martyrology, lib. IV., fol. 229.
[92] Herbert’s Antiquities (1804), p. 154.
[93] Gentleman’s Magazine, Vol. 46, p. 495.
[94] _Ante idem._
[95] Gentleman’s Magazine, Vol. 46, 373.
[96] Rawlinson’s _Anc. Mon._ ii, 194.
[97] Hastings Dict. of Bible, i, p. 523.
[98] Isaiah, XLIV., 5.
[99] Leviticus, XIX., 28.
[100] 21 Victoria, c. 9, sec. 35.
Branding was used by the American Colonists and in New England was a
common punishment for Quakers, who were branded with red hot iron, on the
shoulder, with a letter “H” for Heretic. (Alice Morse Earle’s “Curious
Punishments of By-Gone Days,” pp. 138, 148.)
[101] “In those days, also saw I Jews, that had married wives, of Ashdol,
of Ammon, and of Moah.... And I contended with them, and cursed them, and
smote certain of them, and _plucked off their hair_, and made them swear,
by God, saying Ye shall not give your daughters unto their sons, nor take
their daughters unto your sons, or for yourselves.” Nehemiah, XIII., 23,
25.
[102] Isaiah, L., 6.
[103] 2 Mac. VII., 7.
[104] Ancient Monarchies, i, 478; Layard’s Ninevah and Babylon.
[105] Rawlinson’s Ancient Monarchies, iii, 246; Herodotus, iv, 64, v, 25.
[106] John’s “Babylonian Laws,” etc.
[107] Herodotus, _ante_.
[108] Gibbon’s Rome.
[109] Agathiu’s “Life of Justinian.”
[110] Bertrandy’s “Un Eveque Supplicie.”
[111] Martin’s “_Les Vies des Saints_.”
[112] Segur’s Memoirs and Anecdotes.
[113] Judges, VIII., 7.
[114] Judges, VIII., 16.
[115] 1 Kings, XII., 11.
[116] 2 Samuel, VIII., 2.
[117] 2 Samuel, XII., 31.
[118] “Curious Punishments of By-Gone Days,” by Alice Morse Earle, p. 5.
[119] “Curious Punishments of By-Gone Days,” by Alice Morse Earle, pp.
17, 20.
[120] _Ante idem._, p. 25.
[121] _Ante idem._, p. 28.
[122] The Gentleman’s Magazine, Vol. 46, p. 373; Alice Morse Earle’s
“Curious Punishments of By-Gone Days,” pp. 29, 43.
[123] The Gentleman’s Magazine, Vol. 46, p. 499.
[124] Act III., Scene II. For many other references to this instrument
of torture, by Shakespeare, see note, to section 82, in White’s “Law in
Shakespeare,” pp. 116, 118.
[125] Alice Morse Earle’s “Curious Punishments of By-Gone Days,” pp. 96,
105.
CHAPTER XI.
WILLS, QUAINT AND CURIOUS.
A last will and testament is the instrument whereby one disposes of his
property, to take effect after his death.[1]
The right to dispose of one’s property, by will, consistent with existing
rules of law, is one of the results of man’s social condition, based
upon an instinctive sentiment, akin to self love, which looks to the
preservation and alienation, according to the intent of the owner, of the
individual acquisitions, resulting from personal endeavor.
There is a vast amount of interesting information, in connection with
the history and forms of antique wills, and testamentary dispositions of
property, in one form or another, are of extremely ancient origin.[2]
Historians and law writers have told us that the will, as we know it,
is a Roman invention, but in this statement the testimony of others is
accepted as establishing the fact, rather than the knowledge, or want of
knowledge of the fact asserted. Indeed, writers are frequently given to
accepting and repeating the statements of others, without investigating
the facts upon which such statements are based, much as the court
did, that decided that a given windstorm was not a cyclone, where the
conclusion was based wholly upon the evidence showing that the clouds
lacked the funnel shape and circling motion, while the effect of the
storm, evidenced by the twisted trunks of giant trees, the houses awry
and other primary evidence of the fact asserted, was wholly over-looked,
in reaching the conclusion.[3]
There is evidence that wills were used in Egypt centuries before they
were known in Europe;[4] Solon is said to have introduced them into
Greece,[5] and wills were used in Rome, long before the date of the
Twelve Tables.[6]
Abraham, in his lament of the want of a legitimate heir, appointed the
steward and servant born in his house to take his estate, after his death
and this was, virtually, the appointment of an heir by will.[7] And the
Hebrew Patriarch, Jacob, before taking his departure from his sons, with
the knowledge of approaching death, said unto Joseph:[8]
“Behold, I die; but God shall be with you and bring you again
unto the land of your fathers. Moreover, I have given to thee,
one portion above thy brethren, which I took out of the land
of the Amorite with my sword and with my bow. And Jacob called
unto his sons and said, gather yourselves together, that I may
tell you that which shall befall you in the last days.”
Of course this is but an oral bequest, but it has all the elements of
a death-bed disposition, made under the apprehension of approaching
death and it sets forth the “portion” to Joseph, after mentioning the
derivation of the testator’s title, and the symbolic emblems to the other
sons are distributed, with all the solemnity of a will, in fact.
From these illustrations, it will be seen, that from the beginning of
the history of man, as we know him, or at least in the patriarchial
days of the ancient Hebrews, the custom obtained of making testamentary
dispositions of property, and there is also evidence extant that this
custom was not confined alone to the ancient Israelites.
An Egyptian will, dating back to patriarchial times, was recently
unearthed at Kahun, by the English Egyptologist, William Petrie.[9] By
this document, written 2548 B. C. one Sekrehen, a citizen of the time of
Amenemhat IV., settles upon his wife, Teta, all the property given him
by his brother, for life, with a condition against the commission of
waste, and one Siou, a lieutenant, is appointed guardian for the infant
children. Two scribes attest the execution of this will in solemn form
and thus we have the indisputable evidence, by this document executed
forty-six hundred years ago, that the statement of modern historians that
wills are of Roman origin and were invented by the clergy of mediaeval
times,[10] is in error.
The written will of the Assyrian monarch, Sennacherib, assassinated in
the year 681, B. C., is preserved in the royal library of Kenyunjik[11]
and in the form customarily used in that period, he bequeathed to his
son, Esarhadden, his bracelets, coronets and other gifts of gold, ivory
and precious stones, deposited, for safekeeping, “in the temple of Nebo.”
The will of the philosopher, Plato, 348 B. C., who left “no debts,” but
devised his farms, with a provision against alienation,[12] to his son,
Adimantes, together with his vase, gold, cash, slaves, “also all my
chattels, as specified in an inventory, held and possessed by Demetrius,”
is a model of brevity and concise legal form, such as the experienced
lawyer of today would have prepared for his client.
The will of the great Aristotle, who, at sixty-eight entered upon his
final long sleep of death, in the year 322 B. C., after appointing
Antipater his executor, with other named friends to assist him in
the management and care of his estate, proceeds to dispose of his
acquisitions, in a most reasonable business-like manner, from the
provision for his daughter, in case of her marriage, including the
disposition of his various slaves, the finishing of his statues and the
depositing of the bones of his wife, Pythias, in his tomb, “even as she
desired,” to the final arrangements for the offering of the four stone
animals, for the preservation of Nicanor, to Jupiter and Minerva, is just
such a sane, sensible testamentary provision as one would expect from
such an astute philosopher.[13]
Virgil died ten years before Christ and his will left his manuscript of
the Aeneid to his friends and executors, Tucca and Varus, and divided his
property between his half-brother, Proculus and Valerius, after leaving a
fourth to Augustus, a twelfth to Macaenas and the rest to Varus.[14]
But we cannot devote more space in this chapter to the wills of the most
gifted of men of this ancient period, however interesting it would be to
follow the testamentary devises of the statesmen, poets and philosophers
of the period before Christ, but to trace the origin and growth of
English wills, with a few illustrations of the quaint and curious, will
sufficiently lengthen the scope of the present subject-matter.
Forms of testamentary disposition of personalty obtained in Great Britain
at a very early period,[15] but until the Statute of Wills, in 1540,[16]
there was no right of disposition by will, in England, on the part of the
owner of real estate.[17]
The Anglo-Saxon will is not a product of the Roman will at all, but
is purely a creature of the manners and customs of the English people
themselves.[18] In the early Anglo-Saxon law wills were unknown, but
owed their origin to the privilege accorded the crowned heads and great
ones to make testamentary disposition and death-bed gifts of their
property.[19] In Cnut’s day it was not unusual for a man to make a post
obit gift of his land or goods, and after the Norman conquest this custom
continued and one could dispose of his land, after his death, by a
charter, effective upon his own death, or that of his wife,[20] but the
testamentary devise, as we know it, was not a common instrument in this
day.
After the middle of the thirteenth century the king’s court condemned
the post obit gift of land, by charter, but allowed it only in certain
boroughs where the custom obtained; primogeniture was held to destroy
the existing law of succession; the church asserted the right to execute
the last will and testament of every person and the horror of intestacy
increased, as the church assumed the right to administer the goods of the
deceased, for the good of his soul.[21]
We read, in the old books, that a great man, Eude, died in Normandy,
during the reign of Henry I., and made a certain division or devise of his
property, leaving his manor to the abbey he had built at Colchester,
with a hundred pounds and a gold ring, together with a cup and horse
and mule; but before the King would confirm the devise of the manor, he
compelled the surrender of the cup, horse and mule to the Crown.[22]
And the post obit gift to Walden Abbey attempted by William de
Mandeville, Earl of Essex, during the reign of Henry II. was also set
aside by Geoffrey Fitz Peter, one of Glanville’s successors as Chief
Justiciar,[23] under Henry II., and his successor.
Of course the church-men frequently procured confirmations from the
heirs of these post obit gifts of land to the church, by the threat of
a dying father and the disapprobation of the church, if the gift was
not confirmed, but in the law these gifts were not recognized, for, as
Glanville puts it, in this period it was an axiom of the law that “God
alone and not man can make an heir.”[24]
Glanville speaks of the probate of wills, as if that mode of
authenticating these documents had been long in use, when he wrote,
but just when this custom was crystalized into law, in England, it is
difficult to determine.[25] In the reign of Henry III. the ecclesiastical
courts assumed jurisdiction in the probate of wills and soon thereafter
attempted quite generally to enforce the execution of them in payment
of legacies, for since the reign of Henry I., the estate of one dying
intestate, was subject to division by those succeeding thereto, _pro
anima ejus_.[26] The church seemed best suited to make this division,
for the benefit of the intestate’s soul and this finally gave rise to
the grant of letters by the ordinary to the next of kin, from which
the custom of issuing letters of administration no doubt arose, in
after-times.[27]
The church continued to execute the powers concerning wills and the
estates of decedents—and this is no doubt the reason why Glanville and
Bracton do not treat at length of wills, further than to mention the
custom, in certain boroughs, of devising land by will[28]—until the
people complained of oppression by the bishops and ordinaries in the
exaction of fines for probating wills, when the statute of 31 Edward
III., was enacted, giving the justices of the king’s court jurisdiction
to enquire into such exactions and oppressions, either at the instance
of the king, or that of the injured person.[29]
Having thus assumed the jurisdiction over the estates of deceased
persons, by this statute, which was the entering wedge to oust the
jurisdiction of the ecclesiastical courts, in the gradual processes of
time, the courts learned in the law, instead of those concerned only
about spiritual affairs, assumed larger control and jurisdiction over the
estates of decedents. While the church retained control over the estates
of decedents, the bishop exercised practically the same authority that
the probate judge exercises under our law, in the granting of letters
of administration, the listing and inventorying of the property and
the accounting by the trustee to the ordinary, granting the letters of
administration.[30]
From the delegation of the trust to some personal friend to carry out
the will of the decedent, the clergy, in compelling fidelity in the
performance of the trust, no doubt developed that particular kind of a
trustee known to our law of today as an executor or administrator and
with the appearance of this legal personality, the devise may be said to
first legally assume the dignity analogous to our present testamentary
devise.[31]
One of the earliest wills, with executors, that the older books refer
to, is that of King Henry II.,[32] made at Waltham, in the year 1182 in
the presence of ten witnesses, among whom we note the name of Ranulf
Glanville, his justiciar, the author of the first English law book. The
English bishops and Glanville were to make division among the religious
houses of five thousand marks; Norman bishops were to make division
of certain sums among Norman elemosinary institutions; his sons were
charged with the distribution of a fund to be expended in providing
marriages for poor free women; God’s curse was invoked upon all those
who violate his laws and the Pope was said to have confirmed the devise,
no doubt because all the legacies were for pious purposes. The will,
however, had executors,[33] for one set of the trustees looked after
the English behests; another set after the Norman legacies; others,
still, those left to institutions in Maine and Anjou, and all of these
several executors, save only Glanville, were from among the clergy, and
this evidences the high regard in which this monarch held his learned
justiciar.
But few of the thirteenth century wills have come down to us, although
we have an ampler supply in the fourteenth century. In the thirteenth
century, the will was usually made in Latin and wills written in the
English language first began to appear generally in the second half of
the fourteen century.[34]
In the year 1268, or the 53 year of Henry III., William de Beauchamp
executed a will[35] that looks very like the modern documents, except
that it only provided for specific legacies and behests of personalty
other than to the church. It provided that his horse, fully harnessed,
with all military caparisons, should precede the hearse bearing his
corpse; provided for masses for his soul; gave a house to the church for
his own soul and that of his wife; a behest to his son, Walter, to defray
his expenses in a pilgrimage to the holy-land; to his daughter, Joane,
a canopy and a book of Lancelot; a silver cup to his daughter Isabel,
rings for his friends, with small legacies to others and a house for the
church, are the principal features of this ancient will. The testator
finally closed this interesting old will, in the following form:
“And I appoint my eldest son, William, Earl of Warwick, Sir
Roger Mortimer, Sir Bartholomew de Sudley, and the Abbots of
Evesham and of Great Malverne, my executors.”
So here we have, in modern form, the recognition of the custom to appoint
executors, by testamentary devise, just as today.
Primogeniture, under the feudal law of the middle ages, in England,
created the necessity for wills of real estate, for although all children
of the Germanic races took equally and this was true, at Rome, under
the feudal law all the children were practically disinherited in favor
of the eldest son; some method of devising the estate to the eldest son
was essential, on the part of the testator of real estate, so the Clergy
adopted the Roman will as the instrument for accomplishing the purpose
and thus it is sometimes called “an accidental fruit of feudalism.”[36]
The liberty taken by the Church with the estates of deceased persons was
a matter of such scandal and oppression, during the reigns of Henry III.
and Edward II., that Parliament on several occasions imposed rules for
the government of the bishops in the administration of the estates of
intestates. Executors were required, during the reign of Henry III., to
make a true inventory of the property of the deceased, and exhibit it to
credible persons, acquainted with the property of the deceased,[37] and
this is no doubt, the foundation for this provision of our modern law,
requiring inventories, in such cases.
During the reign of Edward IV. the _testamentum_ and _ultima voluntas_
came to be regarded in much the same legal aspect, although the former
was the more solemn act and the execution of the testament was always in
accordance with the forms prescribed in the older law books and if these
preliminaries were omitted it was but a mere _ultima voluntas_.[38]
In the reign of Edward VI. the reformers of that period objected to the
promiscuous use of wills by all classes, so an act was passed preventing
the execution of wills by wives, _servi_, by minors under fourteen, by
heretics, criminals, condemned to death, exile, or chains; those who did
not dismiss their concubines before they were in extremis, people with
two wives or husbands, libelers, prostitutes or procuresses and usurers.
The indulgence was granted to those keeping concubines, however, and to
those with two wives or husbands—perhaps because of the leniency with
which such crimes were looked upon at this period—of disposing of their
goods _in pias causas_, or for the relief of the poor, afflicted, for
young women, the support of students and the reparation of highways.[39]
Under the old law, the division of the decedent’s property, whether by
will or otherwise, was one-third to his wife, a third to his children
and the other third, the owner himself could dispose of. If no will was
left, the wife and children took their one-third each and the rest was
divided by the administrator. If no children survived, the widow took
half and the owner could dispose of the other half, or, if the owner died
intestate, the administrator disposed of the remaining half and the same
was true, if there were no children, but a widow survived.[40]
The modern statutes of descents and distributions, in the United States,
are no doubt founded upon the customs, which had taken the fixed form of
law, at this early period of English history.
In the written English wills that have come down to us, from the middle
ages, we find the dispositions of property governed, largely, by the
customs and laws of the period when the will was written and the forms
and dispositions of property devised by these instruments is as varied as
the imaginations and whims of the testators.
The will of Guy de Beauchamp, Earl of Warwick, dated at Warwick Castle,
Monday, next after the feast of St. James, the Apostle, 1315, provided
for the interment of his body in the Abbey of Bordsley, without funeral
pomp. To Alice, his wife, he left a portion of his plate, a crystal cup
and half his bedding, with all the books in his chapel; to his daughters,
he left the other half of his bedding, rings and jewels; to his son,
Thomas, he left his best coat of mail, helmet and suit of harness, and to
his son, John, he left his second best coat of mail, helmet and harness,
and the remainder of his armour, bows, and other warlike implements were
to remain in Warwick castle, for his heir.[41]
Noticeable among the wills of the fourteenth century is the specific
provision for the place and manner of the interment of the body of the
deceased. The testators of this period of the world’s history, prompted
by their superstition, wrote their wills as if they thought that the
angel of the Lord, on the resurrection day, would scan their wills, to
find the place of their interment. They talked “of graves, of worms, and
epitaphs,” just as the Great Bard makes the weak King Richard speak, who
had naught to bequeath, save his deposed body “to the ground.”[42]
We find that old John of Gaunt, Duke of Lancaster, in 1399, directs, in
his will,[43]
“If I die out of London, I desire that the night my body
arrives there it be carried direct to the Friars Carmelites, in
Fleet Street, and the next day be taken straight to St. Paul’s,
and that it be not buried for forty days, during which I charge
my executors that there be no embalming of my corpse.”
Sir Walter Manney, on St. Andrew’s day, in 1371, in London, provided for
his interment, “at God’s pleasure,” in the midst of the Quire of the
Carthusians, near Smithfield, in the suburbs of London, without any great
pomp. He directed twenty masses be said for his soul and that every poor
person attending his funeral, be given a penny to say a prayer for his
soul and the remission of his sins. He left ten pounds to his sister, the
nun, Mary; left a provision for each of his two bastard daughters and to
his dear wife, the plate which he bought of Robert Francis, also a girdle
of gold, a garter of gold and all of his beds and girdles, except his
folding bed, which he left to his daughter of Pembroke. He willed that a
tomb of alabaster with his own image thereon, as a knight and his arms
thereon should be constructed, like unto that of Sir John Beauchamp, at
Paul’s London, and that prayers should be said for his soul and also for
that of Alice de Henalt, the Countess Marshal and Sir Guy Bryan, Knt.,
was appointed executor of his will.[44]
Queen Katherine of Aragon, wife of Henry VIII., who died in 1536, after
providing for the burial of her body in the Convent of Observant Friars,
supplicated the King in her last will,[45] to return the property that
she had brought to him from Spain, out of which she stipulated for
the payment of the annual wages due her physician, her druggist, her
laundress, goldsmith and tailor; she left the collar of gold she had
brought from Spain to her daughter and provided for masses for her soul
and legacies to different priests and lady friends.
Harris, in his recent book on “Ancient, Curious and Famous Wills,”[46]
reproduces, verbatim, many curious and strange testaments, evidencing the
weaknesses, humors, whims and caprices, and sometimes, even the vengeance
of the various testators, whose wills he has collected.
William Pym, for instance, a gentleman of Somerset, England, who crept
to his long sleep of death on January 10’, 1608, after providing for
different charitable behests, thus speaks of his wife, in his will:[47]
“I give to Agnes, which I did a long time take for my wyfe—till
she denyd me to be her husband, all though wee were marryd
with my friends’ consent, her father, mother, and uncle at
it; and now she sweareth she will neither love mee nor evyr
bee perswaded to, by preechers, nor by any other, which hath
happened within these few years. And Toby Andrewes, the
beginner, which I did see with mine own eyes when he did more
than was fitting and this, by means of others, their abettors.
I have lived a miserable life this six or seven years, and now
I leve the revenge to God—and ten pounds to buy her a gret
horse, for I could not, this menny years, please her, with one
gret enough.”
Dispositions of property for the use and benefit of horses and other
domestic animals are not uncommon, in the list of quaint and curious
wills to be met with by the student of ancient testaments.
Harris cites the curious will of a childless peasant, who died near
Toulouse, in 1781, by the terms of which he left his house and land and
other property to his riding horse, in these words:
“I declare that I appoint my russet cob my universal heir, and
I desire that he may belong to my nephew, George.”
Upon the will being brought before the court for construction, it was
held that the intent of the testator would be given effect and the horse
and the bequests he had bestowed upon it, would go to the nephew named in
the will.[48]
Madame Dupuis, who died in 1677,[49] left a legacy of a fixed amount to
her executor, with a detailed menu for her cats, which her sister and
niece were to visit three times a week to see that at least thirty sous a
week were expended for their living and care.
As an illustration of the generosity and magnanimity of certain Jews,
the will of the wealthy Israelite, Pinedo, who died at Amsterdam, in the
eighteenth century, is not without interest. He left to the city of
his adoption, five tons of gold; to every Christian church in Amsterdam
and at the Hague, the sum of 10,000 florins each; to each Christian
orphanage in these two towns, 10,000 crowns; to the poor of Amsterdam,
forty shiploads of peat; to his synagogue two and a half tons of gold; he
lent to the government, at three per cent, ten tons of gold, on condition
that the interest should be paid to the Jews domiciled at Jerusalem; he
then left certain legacies to his wife and nephew and other members of
his family and to every unmarried person of either sex, attending his
funeral, 100 florins; to every Christian priest at Amsterdam and the
Hague, 100 crowns and to every sacristan, fifty crowns.[50]
Space will not permit the long list of charitable and philanthropic
devises that could be collated from ancient and mediaeval times, which
many of the testators of today would do well to emulate.
John Wardell, of London, by his will dated August 29’, 1656, devised
his tenement, called the “White Bear,” in trust, to light the travelers
passing to and fro along the watersides.[51]
Charles Jones, of Lincoln’s Inn, by will dated January 17’, 1640,
established a charitable trust for the maintenance of a house to be used
as a hospital, near Pullhelly, for twelve poor men.[52]
George Butler, of Coleshill, Warwickshire, by his testament dated
September 2’, 1591, gave his house in trust for the lodgment of “any
poor travelers” who should desire lodgment, not to exceed one night.[53]
And Valentine Goodman, of Hallaton, England, by his will in 1684,
left eight hundred pounds to be invested and the interest spent for
the benefit of the “most indigent, poorest, aged, decrepit, miserable
paupers.”[54]
Among the freakish wills collected by Harris, may be mentioned that of
the nobleman of the house Du Chatelet, who died in 1280,[55] and directed
that one of the pillars of the church at Neufchateau should be hollowed
out and his body stood upright therein, so that the vulgar might not walk
upon his corpse.
The strange request of the great English jurist, Jeremy Bentham,[56] that
his corpse might be embalmed and placed in his favorite chair at the
banquet table of his friends, on all occasions of state, was carefully
carried out by his friend, Dr. Southwood Smith. By some scientific
process the body of the philosopher and law writer was preserved, by a
French artist and in his usual suit of clothes, with his broad-brimmed
sombrero and his favorite walking-stick, in his old armed-chair, the
lifeless body of this gifted man graced the meetings of his friends,
until it was removed by Dr. Smith to University College.
The will of the great Bard of Avon, has been discussed so frequently
that its terms are known to many, but as the last writing of the Poet,
like everything connected with his life, it is always of interest to
posterity.
The first paragraph of his will, along with the many other prayers and
Bible references which he places in the mouths of his characters in the
plays,[57] evidences the Poet’s firm belief in Jesus Christ and the “life
everlasting.”
In the entailment of his real estate to the bodily heirs male of his
daughters, this will evidences the most careful legal preparation and
the conclusion is not unreasonable that the same discrimination which
characterizes this disposition of his real estate and other property,
recognized the futility of any attempted disposal of his literary
productions, which lacked the attribute of property, in law, in England,
until 1709.[58]
His legacies to his sister and his nieces and nephews is characteristic
of his deep affection for his own family; his benevolence is established
by his bequests to the “poor of Stratford”; his good-fellowship and love
for his friends by the many legacies for rings for his different friends;
his indifference toward his wife, by the fact that he only left her his
“second best bed, with the furniture,” while all his landed acquisitions,
with his gold and silver plate and other property were distributed among
his sisters, daughters, nieces and nephews and his trust and confidence
in his daughter, Susanna Hall, and her husband, John Hall, is finally
established by the fact that he made them his executors and trustees.[59]
The wills of the statesmen and patriots of the past century, in our own
country are equally interesting with those of our brothers of yesterday
across the sea.
After leaving his land in Nova Scotia, with his books and the debts owing
to him by his son, William Franklin, former Governor of the Jerseys, the
great statesman, philosopher and patriot, Benjamin Franklin, referred
to his son’s part in attempting to deprive him of his property, during
the war, as an excuse for not leaving him more of his estate. He left
his dwelling house and three new houses, printing office, silver plate
and household goods, to his daughter, Sarah Bache, and her husband, in
entirety with remainder to their heirs, “as tenants in common and not
as joint tenants.”[60] The picture of the king of France, set with four
hundred and eight diamonds, he left to his daughter, with the admonition
not to use the diamonds to make ornaments for herself, so as not to
thereby “introduce the expensive, vain and useless pastime of wearing
jewels in this country.” He desired his philosophical instruments in
Philadelphia, to go to his ingenious friend, Francis Hopkinson, and by
a codicil, he left his “fine crab-tree walking-stick” to his friend and
“the friend of mankind, General Washington. If it were a sceptre, he
has merited it and would become it. It was a present to me from that
excellent woman, Madame de Forbach, the Dowager Duchess of Deux Ponts,
connected with some verses, which go with it.” He left a bond to his
son-in-law, on the condition that he manumit and set free his negro man.
This great patriot and friend of mankind, like General Washington, in his
last testament, therefore, registered his opposition to human slavery,
an institution that was to be finally abolished a half century later in
the United States, through the efforts of the great “Emancipator.”
The will of the great Chief Justice John Marshall, is declared by him
to be “entirely in my own handwriting”; he left his estate equally to
his only daughter and his five sons and accompanying the will is a
splendid eulogy to his deceased wife, whom he characterized as the “most
affectionate of mothers.”[61]
The will of Captain Miles Standish, Longfellow’s hero, was made March
7’, 1656. He desired his just debts to “bee paied”; that his body
should be “buried in Decent manor ... as near as conveniently may bee
to my two daughters, Lora Standish, my daughter, and Mary Standish, my
daughter-in-law.” His dear and loving wife, Barbara Standish, was left
a third of his estate; forty pounds were left to each of four sons and
to his son Josias, upon his marriage, he left “one young horse, five
sheep and two heifers,” with his forty pound legacy, if his estate “will
bear it att p’sent.” His friends, Mr. Timothy Hatherly and Capt. James
Cudworth, were appointed “supervisors” of his will, for he knew that they
would “be pleased to Doe the office of Christian love to bee healpfull to
my poor wife and Children by their Christian Counsell and advice.”[62]
The “Father of our Country,” General George Washington, left the bulk
of his estate to his wife, Martha Washington, for life,[63] with the
“liquors and groceries” on hand at his death, to dispose of as she saw
fit. Upon her death he willed that all slaves owned by him, in his own
right, should have their freedom and that the old and infirm and sick
ones should be protected and maintained by his heirs so long as they
lived and the younger ones educated and maintained the same as other poor
children.
He left the fifty shares in the Potomac Company, given him for his
services in the Revolutionary War, to endow a University within the
limits of the District of Columbia; some of his lands were distributed
among the sons of his deceased brothers; his military and state papers
were left to his nephew, Bushrod Washington; he recommitted the “box
of oak that sheltered the great Sir William Wallace,” to the Earl of
Beuban; to his brother, Charles, he left the gold headed cane left him by
Dr. Franklin and among the “mementos of esteem and regard,” to his many
friends, are a pair of pistols to General De La Fayette. He desired that
in case of any dispute over his will that the disputants select each an
arbitrator, the two thus selected to agree upon a third and the finding
of any two as to his intentions, he desired to be “as binding upon the
parties as if it had been given in the Supreme Court of the United
States.”
Like Washington, and many other of the patriots of the past century,
William Penn prepared his own will, in 1718, so as to cause no little
concern to his friend, James Logan, as to the different constructions
that could be placed upon it.
The Government of the Province of “Pennsylvania and territories thereto
belonging,” he devised in trust to the Earls of Oxford, Mortimer and
Powelett, “and their heirs, upon trust, to dispose thereof to the Queen”
or to any other person to the best advantage to carry out the object of
the devise.
He further devised to his wife, Hannah Penn; to her father, Thomas
Callowhill; to his sister, Margaret Lowther; to his friends “Gilbert
Heathcote Physitian, Samuel Waldenfield, John Field, Henry Gouldney,
all living in England” and to his friends, Samuel Carpenter, Richard
Hill, Isaac Norris, Samuel Preston and James Logan, “liveing in or near
Pensilvania and their heires” all his lands, tenements and hereditaments,
with “other profitts scituate, lyeing and being in Pensilvania and the
territores thereunto belonging,” in trust, first for the payment of his
debts, second, to convey 10,000 acres each to the three children of his
son, William, a like quantity to his daughter, Aubrey, and the rest to
be divided among the children of his present wife, “in such proporcon
and for such estates as my said wife shall think fit.” His wife was made
executrix and all his personal estate was left to her.
Penn was a man of far more than the ordinary ability and wisdom in the
customary affairs of life, but as his friend, James Logan, foresaw, from
the contents of this will, which left such a large and varied estate
to so many people to convey, with so little instructions regarding his
intentions, it is not strange that litigation covering a period of nine
years should have resulted from such a testament.[64]
The searcher for the curious in testaments, will find wills in poetry as
well as in prose, collated in Harris’ Ancient Wills.
William Jackett, of the parish of St. Mary, Islington, died in 1789 and
his will in the following form was admitted to probate:
“I give and bequeath,
When I’m laid underneath,
To my two loving sisters most dear,
The whole of my store,
Were it twice as much more,
Which God’s goodness has given me here.
And that none may prevent
This my will and intent,
Or occasion the least of law-racket,
With a solemn appeal
I confirm, sign and seal
This, the true act and deed of Will Jackett.”[65]
William Hicklington, who dubbed himself, the Poet of Pocklington, penned
his will in rhyme, in 1770, as follows:
“Do give and bequeath,
As free as I breathe,
To thee, Mary Jarum,
The Queen of my Harum,
My cash and my cattle,
With every chattel,
To have and to hold,
Come heat or come cold,
_Sans_ hindrance or strife,
Though thou art not my wife,
As witness my hand,
Just here as I stand,
The twelfth of July,
In the year seventy.”[66]
Apropos this will, is the rhymed testament of the sacriligious Irishman,
who, as the old books record, in this quatrain disposed of his earthly
effects:
“In the name of God, Amen:
My featherbed to my wife Jen;
Also my carpenter’s saw and hammer;
Until she marries; then, God damn her.”[67]
This, however, suggests the “Will in literature,” and in turning over
the pages of the work above referred to, the “Lesser Testament,” of
the plaintive poet, Francois Villon, who died in 1484, is not without
interest.
His gloves and silken hood are bequeathed to a friend in the following
verse;
“Item, my gloves and silken hood
My friend Jacques Cardon, I declare,
Shall have in fair free gift for good;
Also the acorns willows bear
And every day a capon fair
Or goose; likewise a tenfold vat
Of chalk-white wine, besides a pair
Of Lawsuits, lest he wax too fat.”
He desired his friends to record of him in his epitaph:
“Acre or furrow had he none.
’Tis known his all he gave away;
Bread, tables, tressels, all are gone,
Gallants, of him this Roundel say.”[68]
Among the wills in fiction and poetry, collated by Mr. Harris, in his
recent work,[69] are those of Olivia, in Twelfth Night; that of Don
Quixote; the wills of Dickens, George Eliot, Dumas and other English
writers. But it is not the object of this chapter to deal with wills in
fiction, since testaments are founded in certainties, as real as life
and death themselves. We have always made our wills in pursuance of a
natural inclination, associated with the idea of property and intimately
connected with the ties that bind us here on earth. As Hazlitt said, a
century ago:
“We consign our possessions to our next of kin, as mechanically
as we lean our heads on the pillow and go out of the world in
the same state of stupid amazement that we came into it.”
And as certain as we are to die, so certainly do we owe it to ourselves
and to those who are the objects of our bounty, to provide for the proper
disposition of our acquisitions, even as the men and women of antiquity
did, before they pressed the pillow for the last time.
The hands that wrote the wills referred to in the foregoing pages have
been stilled with the silence of the centuries, e’en as the fingers
that wove the figures in your antique rug; the voice that expressed the
dying intent of the testator, like the nightingale that sang among the
trees—ah, “whither hath it gone again, who knows” can be heard again
no more. Like scattered threads from the warp and woof of the lives
from which these skeins are taken, each age-scented document marks the
close of a human life and the fact that other lives have fallen, like
the leaves from trees, but emphasizes the pathos of our lives, since
humanity, as one man, with a universal agony still strives and strains
“to gain the goal where agonies shall cease to be.” Streams have been
wept into the vast ocean of time since the first will and testament was
made by dying man.
“A myriad races came and went; this Sphinx hath seen them come
and go.”
True, a human life, is but “a drop in ocean’s boundless tide,” but as
truly said by Burton:[70]
“Our deaths are twain; the Deaths we see
Drop like the leaves in windy Fall;
But ours, our own, are ruined worlds, a globe
Collapst, last end of all.
We live our lives with rogues and fools,
Dead and alive, alive and dead,
We die ’twixt one who feels the pulse and
One who frets and clouds the head.
Hardly we learn to wield the blade, before
The wrist grows stiff and old;
Hardly we learn to ply the pen, ere Thought
And Fancy faint with cold.
And still the weaver plies his loom, whose
Warp and woof is wretched Man
Weaving th’ unpattern’d dark design, so dark
We doubt it owns a plan.
But ah, what vaileth man to mourn; shall
Tears bring forth what smiles ne’er brought;
Shall brooding breed a thought of joy? Ah
Hush the sigh, forget the thought.
Silence thine immemorial quest, contain
Thy nature’s vain complaint
None heeds, none cares for thee or thine;
Like thee how many came and went.
...
Wend now thy way, with brow serene, fear
Not thy humble tale to tell:—”
’Tis wisdom’s part to make thy will;
The testament is not death’s knell.
FOOTNOTES:
[1] 1 Redfield, on Wills, Ch. II., p. 4; 2 Bl. Comm. 499.
[2] Redfield, on Wills, Ch. I., p. 1; Harris, Ancient Wills. Introd. XII.
[3] Judge John F. Philips advised the writer that an opinion was prepared
by a member of the federal court and submitted to him for his concurrence
when he was on the bench, in a case similar to that referred to in the
text, but it was changed when the attention of the writer was called
to the existing facts, which the opinion failed to note. It is to be
regretted that historians and law writers cannot so amend their works.
[4] Harris, Ancient Wills, p. 12.
[5] Plutarch’s Life of Solon; IV. Kent’s Comm. 503.
[6] Chitty’s note, to 2 B. Comm. 491.
The reason for recognizing, in law, a right of disposition of property
by will, is the same as the law governing the descent and distribution,
in case of intestacy. If there were no such provision, on the vacancy of
the property, on the death of the last owner, an unseemly scramble would
result, which would be both undesirable and contrary to a sound public
policy. “Title,” or authority to make a will, is thus based upon the
social instinct and both wills and intestacy statutes are in furtherance
of this purpose. The owner, in case of a testamentary devise and the
State, in case of intestacy, as a mediary, accomplish practically the
same purpose, in the division of property, the prevention of a vacancy
and the failure of the social instinct, which furnishes the foundation
for society and order. (See interesting Essay by Professor Bigelow, in
III. Essays in Anglo-American Legal History, pp. 776, 778.)
[7] Genesis, Ch. XV.
[8] Genesis, 48 and 49 Chapters.
[9] Harris, Ancient Wills, p. 12.
[10] I. Reeve’s History English Law, 313; II. Pollock and Maitland’s
History English Law, p. 314.
[11] Harris, Ancient Wills, p. 13.
[12] Harris, Ancient Wills, p. 14.
[13] Harris, Ancient Wills, pp. 15, 16.
[14] Harris, Ancient Wills, p. 16.
[15] 2 Bl. Comm. 491.
[16] 32 & 34 Henry VIII.
[17] I. Redfield, on Wills, sec. 4, p. 2; II. Pollock and Maitland’s
History English Law, p. 315; IV. Reeve’s History English Law, 510, 511.
[18] II. Pollock and Maitland’s History English Law, pp. 316, 317.
[19] II. Pollock and Maitland’s History English Law, p. 322.
[20] _Ante idem._, p. 323.
[21] II. Pollock and Maitland’s History English Law, pp. 325, 326.
The statute of wills ordained that all persons having manors, lands,
tenements or hereditaments could give and dispose of them, as well by
last will, or testament in writing, as by any act executed in their
lifetime. (IV. Reeve’s History English Law, p. 374.)
[22] II. Pollock and Maitland’s History English Law, p. 326.
[23] II. Pollock and Maitland’s History English Law, p. 327.
[24] _Ante idem._; Beame’s Glanville, p. 118.
[25] I. Reeve’s History English Law, p. 313.
[26] I. Reeve’s History English Law, p. 313.
[27] I. Reeve’s History English Law, p. 314.
[28] III. Reeve’s History English Law, 215.
[29] III. Reeve’s History English Law, 125.
[30] IV. Reeve’s History English Law, 123, 124.
[31] II. Pollock and Maitland’s History English Law, p. 335.
[32] Nicholas’ “Testamenta Vetusta.”
[33] II. Pollock and Maitland’s History English Law, pp. 334, 335.
[34] II. Pollock and Maitland’s History English Law, p. 337.
[35] Harris, Ancient Wills, p. 22.
[36] Maine, Ancient Law, ch. 7, p. 217; III. Essays in Anglo-American
Legal History, pp. 780, 781.
[37] IV. Reeve’s History English Law, p. 115.
[38] IV. Reeve’s History English Law, 117.
[39] V. Reeve’s History English Law, pp. 81, 82.
[40] V. Reeve’s History English Law, p. 82.
[41] Harris, Ancient Wills, p. 25.
[42] King Richard II., Act II., Scene I.
[43] Harris, Ancient Wills, p. 25.
[44] Harris, Ancient Wills, p. 29.
[45] Harris, Ancient Wills, p. 39.
[46] Published by Little, Brown & Co., 1911.
[47] Harris, Ancient Wills, p. 87.
[48] Harris, Ancient Wills, p. 94.
[49] _Ante idem._, 101.
[50] Schutt’s Memorabilia Judaica, lib. iv, cap. 18.
[51] Harris, Ancient Wills, p. 105.
[52] _Ante idem._, p. 105.
[53] _Ante idem._, p. 107.
[54] _Ante idem._, p. 111.
[55] _Ante idem._ p. 123.
[56] _Ante idem._ p. 139.
[57] For collection of the many beautiful prayers in the plays, see the
interesting book by Mary A. Wadsworth, “Shakespeare and Prayer,” by The
Welch Publishing Co., Chicago.
[58] White’s “Law in Shakespeare,” p. 5.
[59] Harris, Ancient Wills, pp. 305, 309.
[60] Harris, Ancient Wills, p. 369.
[61] Harris, Ancient Wills, p. 407.
[62] Harris, Ancient Wills, p. 427.
[63] Harris, Ancient Wills, p. 439.
[64] Dixon’s “Life of Penn”; Stoughton’s “William Penn”; Harris, Ancient
Wills, p. 291.
The will of Penn, and other of the earlier patriots of the United
States who drew their own wills, in such manner as to cause protracted
litigation, suggests the old poem, tuned to the toast of a century ago,
“The lawyer’s best friend—the man who makes his own will,” inscribed to
“The jolly testator who makes his own will.”
“He premises his wish and his purpose to save
All dispute among friends when he’s laid in his grave;
Then he straightway proceeds more disputes to create
Than a long summer’s day would give time to relate.
He writes and erases, he blunders and blots,
He produces such puzzles and Gordian knots,
That a lawyer, intending to frame the thing ill,
Couldn’t match the testator who makes his own will.
...
You had better pay toll when you take to the road,
Than attempt by a by-way to reach your abode;
You had better employ a conveyancer’s hand,
Than encounter the risk that your will shouldn’t stand.
From the broad beaten track, when the traveler strays,
He may land in a bog, or be lost in a maze;
And the law, when defied, will avenge itself still,
On the man and the woman who make their own will.”
For reproduction of this quaint poem in full, see, Harris, Ancient Wills,
p. 209.
[65] Harris, Ancient Wills, p. 67.
[66] Harris, Ancient Wills, p. 67.
[67] _Ante idem._ 68.
[68] Harris, Ancient Wills, p. 64.
[69] Harris, Ancient Wills, pp. 49, 62.
This bequest of Francois Villon, may have suggested to Mr. Williston
Fish of Chicago, the “Insane Man’s Will,” published in Harper’s Weekly,
in 1898, wherein he makes an imaginary will that has become a classic
in English literature, among the bequests being “all good little words
of praise and encouragement,” to good fathers and mothers, in trust for
their children; to children, subject to the rights of lovers, he devises,
the flowers, the banks of brooks, the blossoms of the woods, the golden
sands and waters of the brooks, the white clouds floating high over the
giant trees and the Milky Way, to wonder at, at night; to lovers, he
devises the imaginary world, with the stars in the sky, the red roses
by the wall, the sweet strains of music and all else by which they
may figure to each other the lastingness and beauty of their love. To
those no longer children or lovers, he bequeaths the pleasures of sweet
memories, the poems of Burns and Shakespeare and other poets, and to
those with snowy crowns he leaves the happiness of old age, with the love
and gratitude of their children, until they fall asleep.
[70] “The Kasidah.”
INDEX.
_References are to Pages_
A
Abjuration, in case of sanctuary, 250.
Adonijah, sanctuary claimed by, 245, 246.
Adulteress, lost dower, in England, 26.
Agrippina, her marriage to Claudius, 18.
Alcibiades, recall of, 83.
Alexander III., decree concerning consent marriages, 22.
Alfred, administration of justice under, 89, 90.
Alfred, jury trials under, 151.
Alfred, sanctuary under, 251.
Alfred, wager of law, under, 197.
Amber witch, 71.
Ancient punishments (see punishment), 273, 306.
Anglo-Saxon courts, 90.
Anglo-Saxon law against witchcraft, 49.
Anglo-Saxon wills, 312.
Anglo-Saxons, judicial recall under, 88, 90.
Anglo-Saxons, recognized sale-marriages, 20.
Animals, wills to, 322.
Appellee, meaning of, in trial by battle, 115.
Approver, in trials for felony charges, 117.
Aristeides, recall of, 83.
Aristotle, on judicial recall, 82, 86.
Aristotle, will of, 310.
Arrowsmith, case of, Anthony, 183.
Arthur, king, and Flollo, trial by battle between, 127.
Ashford, trial by battle with Thornton, 133.
Assize, a substitute for battle, under Henry II., 119.
Assyrian marriages, 13.
Astrology in mediaeval times, 49.
Athelstan, laws of, governing ordeals, 149.
Athelstan, sanctuary, under, 252.
Athenian judges, recall of, 83.
Athens, recall in, 81.
Attainder, standing mute to avoid, 173.
Aunts and nephews, marriages between, 18.
Authorities upon witchcraft, 70.
B
Babylon, effect of recall in, 103, 104.
Babylon marriages, 13.
Babylon, trials in ancient, 79.
Babylon, wager of law, in ancient, 197.
Babylonian judges (note), 74.
Balance, ordeal by, 143.
Banishment, in ancient Greece, 82.
Banns, custom of, 21.
Banns, legal advantages of, 22.
Barabas, release of, by Pilate, 102.
Battle, trial by, 109, 140.
Battle, origin of trial by, 109.
Battle, traced to ancient periods, 109.
Battle, regulated by Burgundians, 501 A. D., 111.
Battle, regulated by Otho, in 983 A. D., 112.
Battle, adjudged legal method of trial by Ld. Ellenborough, 133.
Battle, intended to prevent perjury, when established, 112.
Battle, London exempted from, by charter, 119.
Battle by use of “Approvers”, 117.
Battle, under military form, 125, 126.
Battle, in case William of Eu, 126.
Battle, in finance, 118.
Battle, in trials on debt, 119.
Battle, under writ of right, in full, 120, 122.
Battle, trial before Henry III., 129.
Battle, trial before Henry VI., 131.
Battle, discouraged by Edward III., 118.
Battle, trial by, before Henry VII., 132.
Battle, under felony charge, 116.
Battle, superceded by assize, under Henry II., 119.
Battle, under charge of treason, 116.
Battle between Hereford and Norfolk, 130.
Battle, introduced into England by Normans, 114.
Battle, between King Arthur and Flollo, 127.
Battle for treason, under Priscot, C. J., in reign of Henry VI., 118.
Battle, effect of chivalry upon, 113.
Battle under writ of right, 116.
Battle, trial before Edward III., 129.
Battle between Essex and Montford, 128.
Battle, under Queen Elizabeth, 132.
Battle between men and women, in Germany, 127.
Battle, abolished by St. Louis, in France, in 1260, 134.
Battle, abolished by 59’ George III., 134.
Battle, used by Chaucer, 135.
Battle, Shakespeare’s references to, 136, 137.
Battle, reference of Scott, to, 137, 138.
Battle, referred to, by Thackeray, 139.
Beccaria, his views on punishment, 274.
Beheading, punishment by, 276.
Bekker’s work on witchcraft, 69.
Benefit of clergy, 233, 243.
Benefit of clergy, definition of, 224.
Benefit of clergy, Biblical foundation for, 228.
Benefit of clergy, condition contributing to, 225.
Benefit of clergy, none, in desertion, 234.
Benefit of clergy, did not extend to treason, 228.
Benefit of clergy, nuns entitled to, 228, 229.
Benefit of clergy, “clergyable” and “unclergyable crimes,” 233.
Benefit of clergy, burning in hand, in, 231.
Benefit of clergy, practice in reading, in, 230.
Benefit of clergy, in Bracton’s time, 229.
Benefit of clergy, case of Ben Jonson, 238, 239.
Benefit of clergy, under Henry II., 226.
Benefit of clergy, under Edward III., 229.
Benefit of clergy, under Edward IV., 230.
Benefit of clergy, under Henry VI., 231.
Benefit of clergy, under Henry VII., 231.
Benefit of clergy, under Henry VIII., 234, 235.
Benefit of clergy, abolished, in England, in 1825, 236.
Benefit of clergy, claimed in United States, 239, 241.
Benefit of clergy, abolished in U. S. in 1790, 236.
Bentham, Jeremy, will of, 324.
Berkeley, marriage of Lord Thomas, 28.
Betrothals, in Anglo-Saxon days, 36.
Betrothal-rings, 34.
Biblical theory of marriage, 14.
Bier, ordeal of, 143, 145.
Bilboes, punishment, by, 303.
Blinding, punishment, by, 295.
Boaz, his espousal of Ruth, 36.
Boiling in oil, punishment by, 285.
Bracton, does not refer to ordeals, 157.
Bracton, benefit of clergy, in time of, 229.
Bracton, description of law wager, by, 201, 202.
Bracton, standing mute, during time, of, 179.
Branding, punishment, by, 297.
Brank, punishment, by, 305.
Brazil, marriages of infants in, 29.
Burgundian code, on trial by battle, 111.
Burning in hand, in benefit of clergy, 231.
Burning, punishment by, 276.
Burnworth, case of, in 1726, 186.
Burr, Aaron, trial of, 100.
Burn’s idea of the devil, 69.
Burying alive, punishment by, 282.
C
Caesar, Augustus used the recall, 88.
Caesar’s reference to marriage-settlements among Gauls, 32.
Calverly, case of Walter, in 1605, 184.
Cambyses, recall of Sisamnes (note), 78.
Canute, ordeals under, 152.
Capture, marriage by, 13.
Cardunville, William’s case, 22.
Cathay, marriages in (note), 13.
Catholic marriage forms, 34.
Cato, loaning of wife by, 27.
Ceylon, polyandry in, 16.
Chancery, jurisdiction of, 90.
Charitable wills, 323.
Charlemagne, law of, against witchcraft, 50.
Charlemagne, edict, of, on trials by ordeal, 147, 148.
Charles le-Gros, accusation and trial of his wife, 159.
Chatelet, of Paris, punishments, at, 289, 292.
Child marriages, 29.
Child of concubine, property right of, 18.
Chinese marriage customs, 12.
Chivalry, influence of, on battle, 112, 113.
Church and witchcraft, in early times, 49.
Churchmen, trials of, by wager of law, 210.
Church’s influence on trials by ordeal, 168, 169.
Cimon, recall of, 83.
Circassians, capture-marriages among (note), 13.
Clarendon, assize of, 154.
Clarendon, assize of, and law wager, 209.
Claudius, law allowing marriage to niece, 18.
Cleisthenes, on judicial recall, 82.
Clergy, benefit of (see benefit of clergy), 223, 243.
Clergy, neck-verse used in, 229.
Clitherow, Margaret, case of, 180, 183.
Clovis’ marriage to Clotilde, 32.
Cnut, proceedings in “false judgment” under, 106.
Cnut, wills, under, 312.
Cnut’s law against witchcraft, 49.
Cnut’s law against certain sale-marriages, 20.
Code of Hammurabi, on recall of judges, 78.
_Coemptio in manum_, definition of, 16.
Coke, on Slade’s case of law wager, 213.
Coke, on wager of law, 200.
Colynbourgh, Alice, trial of, by law wager, in 1435, 211.
Combat, trial by (see Battle, trial by), 109.
Common pleas courts, in old England, 90.
Compurgators, character of, in wager or law, 198.
Compurgators, as witnesses, 158.
Compurgation by fire ordeal, 142, 143.
Concubinage, definition of, 18.
Concubine, property right of progeny of, 18.
_Concubinatus_, under Roman law, 18.
_Confarreatio_, definition of, 16.
_Confarreatio_, obsolete, by end of Roman Republic (note), 17.
Congress, abolished benefit of clergy, in 1790, 236.
Constantine, law of, against witchcraft, 48.
Constantine, sanctuary, under, 248.
Corey, Giles, trial for witchcraft, 66.
Corey, Giles, case of pressing to death, in 1692, 187, 189.
Corey, Martha’s trial for witchcraft, 65.
Corsned, ordeal, by, 143, 144.
County Court, of Anglo-Saxons, 90.
Courts, in ancient England, 90.
Crimes, unclergyable, 233.
Criminal cases, wager of law, in, during 14th century, 204.
Crucifixion, punishment by, 280.
Cross, ordeal by, 143, 144, 148.
Cumanus, cruelty of, in witch persecutions, 54.
_Curia regis_, in early England, 90.
Custom, of throwing rice, 34.
Custom, of throwing shoes, 34.
Custom, of throwing stockings, 34.
Custom, of throwing bouquets, 34.
Customs, of marriage, 12, 44.
D
David and Goliath, trial by, 109.
David’s Psalms, authorizing benefit of clergy, 228.
Debt, wager of law, in (note), 207.
Debt, battle in trials for, 119.
Definition of benefit of clergy, 224.
Definition of _Confarreatio_, 16.
Definition of trial by ordeal, 141.
Definition of wager of law, 196.
Descent from concubine, 18.
Detinue, wager of law, in (note), 207.
Dinah’s proposed marriage to Shechem, 14.
Diocletian, prohibition of polygamy by, 16.
Divorcement, under Hammurabi, 31.
_Donatio propter nuptias_, of Roman law, 31.
Dower, at church door, 32.
Dower, under Anglo-Saxons, 32.
Dower, under reign of Edward I., 26.
Dower, Shakespeare’s reference to law of (note), 33.
Dowry, under Hammurabi’s code, 31.
Dowry, origin of, 31.
Drawing and quartering, punishment by, 283.
Drowning, punishment by, 277.
Ducking, punishment by, 303.
Durant, John, case of, in 1734, 187.
“Dusty-foot courts”, 90.
E
Ears, cutting off, punishment, by, 296.
“Earthenware-scourge”, recall known as, in Athens, 83.
Edda, Elder, song of, 165.
Edward, the Confessor, sanctuary, under, 254.
Edward, the Confessor, ordeals, under, 152.
Edward, the Confessor, accusation against his mother, 159, 160.
Edward, the Elder, ordeals, under, 152.
Edward I., his marriage to Marguerite, in 1299, 32.
Edward I., sanctuary, under, 256.
Edward I., timidity of judges, under, 93.
Edward I., standing mute, under, 175.
Edward I., statute on dower, 26.
Edward II., punishment by drowning, under, 278.
Edward III., benefit of clergy, under, 229.
Edward III., _peine forte et dure_, under, 180.
Edward III., battle, discouraged by, 118.
Edward III., marriages of infants, under, 28.
Edward III., wager of law, under, 202.
Edward III., trial by battle before, 129.
Edward IV., benefit of clergy, under, 230.
Edward IV., wills, under, 317.
Edward VI., wills, under, 318.
Egypt, wills, in ancient, 309.
Elizabeth, abolished law wager, in ecclesiastic courts, 208.
Elizabeth, statute of, on benefit of clergy, 231.
Elizabeth, trial, by battle, under, 132.
Elizabeth, statute of, against witchcraft, 57.
Elizabeth, Queen, sanctuary claimed by, 260, 261.
Ellenborough, on trial by battle, in 1817, 133.
Ellsworth, Oliver, framed judiciary bill, in U. S., 96.
Emma, Queen, trial of, by ordeal, 159, 160.
England, administration in ancient, of justice, 89, 90.
England, witchcraft in, 70.
Essex, trial by battle with Montford, 128.
Eucharist, ordeal by, 143, 144.
F
“Fair Maid of Perth”, ordeal of bier, in (note), 166.
False-judgment, in Anglo-Saxon days, 92.
Fejee-Islanders, marriages by (note), 13.
Felony, attainder in, 173.
Felony, trial by battle for, 116.
Felton, case of John, in 1628 (note), 185.
Fiction, wills, in, 332.
Fisher’s, trial by battle, 131.
Flaying, punishment, by, 300.
Flollo and King Arthur, battle between, 127.
Fou-hi, Emperor, established marriage, in China, 12.
Fourteenth century wills, 319.
Franklin, will of Benjamin, 326.
Freakish wills, 324.
France, witchcraft in, 70.
G
Gallows-marriages, 41, 43.
Galzu, the judge, 74.
Garnier, case of, on witchcraft persecution, 55.
Gauls, marriage among, 32.
Gaunt, John of, and Catherine Swinford, 19.
Gaunt, John, will of, 320.
Gemot court, of Anglo-Saxons, 90.
Genesis, law of marriage traced to, 14.
George II., law of, regarding marriage, 24.
George III., abolished _peine forte et dure_, in 1772, 189.
George III., judges under, 95.
George III., abolished trial by battle, in England, 134.
Germans, trial by battle among, at early day, 109, 110.
Glanville, law of marriage stated by, 21.
Glanville, on trial by battle, under writ of right, 120, 122.
Glanville, ordeals, in time of, 155.
Glanville, wills, during time of, 313.
Glanville, wager of law, during time of, 200.
Glazier’s company case, 214.
Godwin, Duke, trial of, by ordeal, 160, 161.
Goliath, trial with David, 109.
Goths, trial by battle among, 111.
“Great Law”, wager by, in 14th century, 204.
Greece, recall in, 81.
Greece, effect of recall in, 103, 104.
Greece, sanctuary in, 247.
Gregory of Tours, case of law wager, 209.
Guillotine, punishment by, 293.
Gundibald, law of, regulating trial by battle, 111.
H
Hair, plucking off, punishment by, 299.
Hale, Sir Mathew’s, trial of witches, 60.
Hammurabi’s prerogatives, in decision of causes, 79.
Hammurabi, made infallibility the test of the judge, 106.
Hammurabi’s law against witchcraft, 45.
Hammurabi, code of, regarding marriage dowry, 31.
Hammurabi’s code, on judicial recall, 77, 80.
Hand, marriages by, in Rome, 17.
Hanging, punishment by, 279.
Hawes, Nathaniel, case of, in 1721, 186.
Hebrews, practiced polygamy, 15.
Henry II., benefit of clergy, under, 226.
Henry II., justices itinerant, under, 91.
Henry II., will of, 315.
Henry III., abolished ordeals, 157.
Henry III., _peine forte et dure_, under reign of, 178.
Henry III., trial by battle before, 129.
Henry IV., sanctuary, in reign of, 259.
Henry IV., _peine forte et dure_, under, 180.
Henry VI., law wager, under, 212.
Henry VI., wager of law, under, 206, 207.
Henry VI., _peine forte et dure_, under, 180.
Henry VI., trial by battle, before, 131.
Henry VII., benefit of clergy, under, 231.
Henry VII., trial by battle, before, 132.
Henry VII., sanctuary, under, 262.
Henry VII., sanctuary, under, 257.
Henry VII., _peine forte et dure_, under (note), 180.
Henry VIII., benefit of clergy, under, 234, 235.
Henry VIII., sanctuary curtailed by, 267.
Henry VIII., law wager, under, in 1527 (note), 213.
Hereford, battle with Norfolk, 130.
Hexham, sanctuary, at, 253.
Hincmar, views of, on ordeals, 162.
Holt, chief justice, cases by, on law wager, 214, 216.
Holt, lord chief justice’s trial of witches, 61.
Hopkins, Matthew, his cruelty against witches, 59.
Horsey, Doctor’s case, 236.
Hundred court, of Anglo-Saxons, 90.
Hungarians, marriages of infants, among, 29.
Huntingdon witch trials, 61.
Hutchinson’s work on witchcraft, 69.
Hyperbolus, recall of, in Athens, 86.
I
Ina, sanctuary, under, 251.
Independence of judges, established by William III., 94.
Independence of judges, under Constitution of U. S., 97.
Independence of judges, wisdom of, demonstrated, 106.
India, polyandry in, 16.
Ine, laws of, governing ordeals, 149.
Infallibility, the test of judicial action in Hammurabi’s time, 106.
Infant marriages, 28.
Infant marriages, in Brazil, 29.
Innocent III., marriage under, 21.
Inquisition, punishment by, 286, 288.
Iron, ordeal by hot, 143.
Isaac and Rebekah, 33.
Israelites, taking a wife, by (note), 13.
Israelites, wager of law, under ancient, 197.
Itinerant justices, 91.
J
Jacob’s will, 309.
James I., repealed right to sanctuary, 268.
James of Scotland, his belief in witchcraft, 57.
Jealousies, law of, 141, 142.
Joan of Arc, persecution of, 52.
Jonson, clergy, claimed by Ben, 238, 239.
Judge, definition of, 74.
Judges, in patriarchial days, 75, 76.
Judges, servants of king, in old England, 91.
Judges, liability of, in England, 95.
Judicial recall, 74, 108.
Judicial tenure in American colonies, 98.
Judgment in _peine forte et dure_, 172, 173.
Jury trials under King Alfred, 151.
Jury trials used instead of battle, under Edward III., 118.
Justice, King, the fountain of, in England, 90.
Justice, sale of, in ancient England, 90.
Justices, itinerant, in England, 91.
Justinian’s definition of marriage, 12.
K
Katherine, of Aragon, will of, 321.
Kent, Chancellor, on common-law marriages, 23.
Kentucky, clergy claimed, in, 241.
King, the fountain of justice, in England, 90.
King Alfred’s courts, 89, 90.
King’s bench, court of, in England, 90.
Knighthood, effect upon trial by battle, 113, 114.
L
Lamech, established polygamy, 15.
Law, wager of (See wager of law), 196, 220.
Law suits under Hammurabi, 80.
Legitimacy, of mantle-children, 18, 19.
Leo, Emperor, law against concubinage, 18.
Littleton, on benefit of clergy, 230.
Littleton, law of dower, by, 32.
London, charter of, exempting trials by battle, 119.
Longfellow, presents case of Giles Cory, 187, 189.
Louis le Debonnaire, abolished ordeal of the cross, 148.
Luther, marriage ceremony, by (note), 36.
Law, of marriage, 12, 44.
M
Maiden-rent, 30.
Majestas, under Roman Republic, 88.
Mantle-children, law of, 18, 19.
Marriage, laws and customs of, 12, 44.
Marriage, definition of, 12.
Marriage, three forms of, 15.
Marriage, Biblical theory concerning, 14.
Marriage, under Mosaic law, 14.
Marriage, _per verba de praesenti_, at common law, 23.
Marriage, _in facie ecclesiae_, 23.
Marriage, by sale, 13.
Marriage, by rape, 13.
Marriage, by capture, 13
Marriage, Morganatic (note), 17.
Marriage, putative, 26.
Marriage, retroactive, 26.
Marriage, required to be celebrated by clergy, in 1753, 24.
Marriage, a civil contract, under English law of 1836, 24.
Marriage, within Levitical degree prohibited, 17.
Marriage, between uncles and nieces, 18.
Marriage, between aunts and nephews, 18.
Marriage banns, 21.
Marriage dowry, origin of, 31.
Marriage, not a religious ordinance, 20.
Marriage, religious ceremony required in 1563, 20.
Marriage, legitimates, mantle-children, 18, 19.
Marriage-ring, origin of, 33.
Marriage, forms of, by Roman law, 16.
Marriage, under Twelve Tables, of Romans (note), 21.
Marriage, exalted by Roman law, 16.
Marriage, by hand, in ancient Rome, 17.
Marriage, a partnership, by Roman law, 16.
Marriage, among Gauls, Caesar’s reference to, 32.
Marriage, in Pericles’ time, 27.
Marriage, appertained to spiritual forum, in 12th century, 21.
Marriage, in Glanville’s time, 21.
Marriage, by infants, 28.
Marriage, in United States, 23.
Marriage, form of, in Persia, 34.
Marriage, among Hungarians, 29.
Marriage, at gallows, 41.
Marriage, in a “shift”, 37, 42.
Marriage, between Shechem and Dinah, proposal of, 14.
Marriage, between Claudius and Agrippina, 18.
Marriage of Richard de Anesty, in 1143, 21.
Marriage between John of Gaunt and Catherine Swinford, 19.
Marriage between Duke Richard and Gunnora, 19.
Marriage laws, in England, in 7th century, 21.
Marshal, trial for treason must be before, 118.
Marshall, Chief Justice, on independence of courts, 101.
Marshall, Chief Justice, probable recall of, 100.
Marshall, will of Chief Justice, 327.
Mary, Queen, law against witches, in Scotland, 56.
Mary, Queen, sanctuary, under, 259.
Massachusetts, clergy claimed in, 239.
Massola, punishment by, 293, 294.
Meinhold’s “Amber Witch”, 71.
Menu, institutes of, on marriage (note), 13.
“Middle Law”, wager by, in 14th century, 204.
Millis case, 24, 25.
Milton’s idea of the devil, 69.
Minnesota, clergy claimed in, 241.
Minority alone protected by the courts, 103.
“Minstrelsy of Scottish Border”, ordeal of bier, in, 166.
Mischief of recall in Athens, 86.
Molay, persecution of, under charge of witchcraft, 52.
Monogamy, definition of, 15.
Monogamy, best suited to civilization, 15.
Monogamy, in ancient Greece and Rome (note), 16.
Morganatic marriages, 17.
Mosaic code, sanctuary traced to, 244.
Mosaic code, wager of law, under, 196.
Mosaic conception of judicial functions, 75, 76.
Mosaic law, against witchcraft, 46.
Mosaic law, requiring marriage to brother’s widow, 35.
Moses, law of marriage, 14.
Moses, advice to judges, 75, 76.
Moses, warning, of, in rendering judgment, 101.
N
Narada, institutes of, 145.
Nazarene, delivery of, to multitude, 122.
Neck-verse, in benefit of clergy, 229.
Necromancy in mediaeval times, 49.
Neilson, trial by battle by, 129.
“New England Tragedies”, case of Giles Cory, in, 187, 189.
New Zealand, marriages, in (note), 13.
_Nil debit_, wager or law, in cases of, 197.
Norfolk, battle with Hereford, 130.
Normans, introduced battle, into England, 114.
Northampton, assize of, 154.
North Carolina, clergy claimed in, 240.
Nuns, entitled to clergy, 228.
Nurse, Rebecca’s trial for witchcraft, 67.
O
Oath-helpers, in wager of law, 205, 207.
Oil, ordeal by, 143.
Ordeal, trial by, 141, 170.
Ordeal, definition of, 141.
Ordeal, antiquity of, 141.
Ordeal of the bier, 143.
Ordeal, by the corsned, 143.
Ordeal, by red hot iron, 143.
Ordeal, by the Eucharist, 143.
Ordeal, by fire, 142, 143.
Ordeal, by the cross, 143.
Ordeal, of the bier, as presented in Richard III., 166.
Ordeal, by balance, 143.
Ordeal, by poison, 143.
Ordeal, by water, 143.
Ordeal, by hot oil, 143.
Ordeal, influence of Church on trials by, 168, 169.
Ordeal, under Ine, 149.
Ordeal, trials, under Richard I., 163.
Ordeal, trials, reported by Palgrave, 163, 164.
Ordeal, of bier, as presented in “Minstrelsy of Scottish Border”, 166.
Ordeal, of bier, in “Fair Maid of Perth” (note), 166.
Ordeal, to establish paternity of children, 159.
Ordeal, under Athelstan, 149.
Ordeal, under Canute, 152.
Ordeal, under Edward the Elder, 152.
Ordeal, under Edward the Confessor, 152.
Ordeal, under William Rufus, 156.
Ordeal, under Charlemagne, 147, 148.
Ordeal, under William the Conqueror, 153.
Ordeal, under Henry II., 154, 155.
Ordeal, in time of Glanville, 155.
Ordeal, abolished by Henry III., 157.
Ostracism, in ancient Greece, 81.
Otho, established trial by battle, in 983 A. D., 112.
P
Partnership, marriage, a, by Roman law, 16.
Palgrave’s record of ordeal trials, 163, 164.
Parson’s, Chief Justice, on marriages at common law, 23.
Paynel, William and Margaret’s case, in 1302, 26.
_Peine forte et dure_, 172, 195.
_Peine forte et dure_, definition of, 172.
_Peine forte et dure_, proceeding in, 174.
_Peine forte et dure_, judgment in, 172, 173.
_Peine forte et dure_, applied in 1215 (note), 174.
_Peine forte et dure_, case of, in 1219, 178.
_Peine forte et dure_, statute of Westminster on, 178.
_Peine forte et dure_, under Edward I., 175, 176.
_Peine forte et dure_, under Henry III., 178.
_Peine forte et dure_, under Edward III., 179, 180.
_Peine forte et dure_ during Bracton’s time, 179.
_Peine forte et dure_, under Henry IV., 180.
_Peine forte et dure_, under Henry VII. (note), 180.
_Peine forte et dure_, cases of, in 1221, 179.
_Peine forte et dure_, from 15th to 18th century, 177.
_Peine forte et dure_, from 16th to 17th century, 184.
_Peine forte et dure_, abolished in 1772, 189.
_Peine forte et dure_, in United States, 187, 190.
_Peine forte et dure_, abolished by act of Congress, in U. S., in
1825, 191.
_Peine forte et dure_, case of Giles Cory, in 1692, 187, 189.
_Peine forte et dure_, case of Walter Calverly, 184.
_Peine forte et dure_, case of Margaret Clitherow, 180, 183.
_Peine forte et dure_, case of John Durant, in 1734, 187.
_Peine forte et dure_, case of John Felton, in 1628 (note), 185.
_Peine forte et dure_, case of Anthony Arrowsmith, 183.
_Peine forte et dure_, case of Burnworth, in 1726, 186.
_Peine forte et dure_, case of Phillips, in 1720, 186.
_Peine forte et dure_, case of Nathaniel Hawes, in 1721, 186.
_Peine forte et dure_, illustrations of, from Shakespeare, 192, 193.
_Peine forte et dure_, case of Sir Richard Weston, in 1615, 184, 185.
_Peine forte et dure_, case of Major Strangeways, in 1657, 185.
_Peine forte et dure_, case of Juliana Quick, 180.
_Peine forte et dure_, case of Cecelia Rygeway, 180.
_Peine forte et dure_, in 1827, 190.
_Peine forte et dure_, conclusions regarding, 193, 195.
Penn, William’s trial of witches, 62.
Penn, will of William, 328.
Pericles, marriage under, 27.
Perjury, battle established to prevent, 112.
Persia, form of marriages in, 34, 35.
Petalism, law of repealed, 452 B. C., 87.
Petalism, in Syracuse, 86.
Phillips, of Newgate, case of, in 1720, 186.
_Piepoudre_ courts, under Anglo-Saxons, 90.
Plato, will of, 310.
Poetic wills, 330, 333.
Poison, ordeal by, 143, 146.
Pelagius I., Pope, case of law wager, in 6th century, 209.
Poland, capture-marriages in (note), 13.
Political methods, trial of judges by, in Greece, 105.
Polygamy, definition of, 15.
Polygamy, established by Lamech, among Hebrews, 15.
Polygamy, among Hebrews, 15.
Polygamy, prohibited by Diocletian, 16.
Polygamy, in Persia, 15.
Polygamy, in Turkey, 15.
Polygamy, in Rome, 15.
Polyandry, definition of, 15.
Polyandry, origin of, 16.
Polyandry, practiced in India, Thibet and Ceylon, 16.
Preators, recalled in Rome, 87.
Precipitation, punishment by, 279.
Pressing to death (See _peine forte et dure_), 172, 195.
Primogeniture, effect of, on law of wills, 317.
Priscot, C. J., on trial by battle for treason, 118.
Privilege of sanctuary (See sanctuary), 244, 272.
Procedure of recall, in Athens, 82.
Property rights of wife, by Roman law, 16.
Property, protected by courts, alone, 103.
Punishment, as viewed by Beccaria, 274.
Punishment, definition of, 273.
Punishment, by Chatelet, of Paris, 289, 292
Punishment, by beheading, 276.
Punishment, by Bilboes, 303.
Punishment, by blinding, 295.
Punishment, by boiling in oil, 285.
Punishment, by branding, with hot iron, 297.
Punishment, by crank, 305.
Punishment, by burning to death, 276.
Punishment, by burying alive, 282.
Punishment, by crucifixion, 280.
Punishment, by cutting off ears, 296.
Punishment, by drawing and quartering, 283, 284.
Punishment, by drowning, 277.
Punishment, by ducking, 303.
Punishment, by exposure to wild beasts, 279.
Punishment, by flaying, 300.
Punishment, by guillotine, 293.
Punishment, by hanging, 279.
Punishment, by inquisition, 286, 288.
Punishment, by Massola, 293, 294.
Punishment, by plucking off the hair, 299.
Punishment, by precipitation, 279.
Punishment, by rack, 304.
Punishment, by sawing asunder, 279.
Punishment, by scourging with thorns, 302.
Punishment, by stocks, 304.
Punishment, by strangling, 279.
Punishment, by stoning to death, 279.
Punishment, by wheel, 301.
Punishments (See ancient punishments), 273, 306.
Purchase of justice, in England, 91.
Putative marriages, 26.
Q
Quaint and curious wills (See wills, quaint and curious), 307, 334.
Quick, Juliana, case of, 180.
R
Rack, punishment, by, 304.
Rape-marriages, 13.
Recall of judges, 74, 108.
Recall of judges, meaning, of, 74.
Recall, among Medes and Persians (note), 78.
Recall, effect of, in Babylon and Greece, 103, 104.
Recall, established by Cleisthenes, in Greece, 82.
Recall, in ancient Greece, 81.
Recall, in Athens, explained by Aristotle, 82.
Recall, discarded in Athens, 86.
Recall, in ancient Rome, 87.
Recall, by Augustus Caesar, 88.
Recall, by King, in England, 94.
Recall, by “false-judgment” trials, in England, 93.
Recall, in case of Rebecca Nurse, 102.
Re-hearings, none, under Hammurabi’s code, 78.
Retroactive marriages, 26.
Rice, an emblem of fruitfulness, 35.
Rice-throwing, 34.
Richarda, Empress, trial of, by ordeal, 159.
Richard de Anesty’s marriage, in 1143, 21.
Richard, Duke of, and Gunnora, 19.
Richard I., ordeal trials under, 163.
Richard III., ordeal of bier, as presented in, 166.
Right, writ of, procedure in battle under, 116.
Ring, in marriages, origin of, 33.
Roland, song of, 135.
Roman forms of marriage, 16.
Roman marriage laws basis of our own, 16.
Roman marriage exalted, 16.
Roman marriage a partnership relation, 16.
Romans, wager of law, under, 197.
Rome, recall of judges in ancient, 87.
Rome, sanctuary in, 247.
Ruth and Boaz, espousal of, 36.
S
Sabines, rape of the (note), 13.
Saint Louis, abolished trial by battle, in France, in 1260, 134.
Sale-marriages, 13.
Sale-marriages, in Cnut’s time, 20.
Sale-marriages, recognized by church, 20.
Salem witch trials, 62, 68.
Sale, of justice in old England, 90.
Samuel, Mother, persecution of, 56.
Sanctuary, privilege of, 244, 272.
Sanctuary, definition of, 244.
Sanctuary, how claimed, 258, 259.
Sanctuary, under Mosaic code, 244.
Sanctuary, in Greece and Rome, 247.
Sanctuary, under Alfred, 251.
Sanctuary, under Constantine, 248.
Sanctuary, under Anglo-Saxons, 249.
Sanctuary, under Athelstan, 252.
Sanctuary, under Ina, 251.
Sanctuary, under Edward the Confessor, 254.
Sanctuary, under William the Conqueror, 252.
Sanctuary, abjuration of realm, in, 250.
Sanctuary, under Edward I., 256.
Sanctuary, in reign of Henry IV., 259.
Sanctuary, under Henry VII., 257, 262.
Sanctuary, curtailed by Henry VIII., 267.
Sanctuary, repealed by James I., 268.
Sanctuary, in Scotland, 265.
Sanctuary, under Queen Mary, 259.
Sanctuary, claimed by Queen Elizabeth, 260.
Sanctuary, at Hexham, 253.
Sanctuary, in literature, 269, 270.
Sawing asunder, punishment by, 279.
Saxons, sanctuary under, 249.
Saxons, wager of law, under, 197.
Scipio, trial by battle before, 126.
Scotland, persecutions for witchcraft in, 57.
Scotland, sanctuary, in, 265.
Scott, Sir Walter’s references to trial by battle, 137, 138.
Scott’s “Minstrelsy of Scottish Border”, 166.
Scourge, recall known as, in Athens, 83.
Scourging, with thorns, punishment, by, 302.
Selden, gives origin of marriage-ring, 33.
Selden, on trial by battle, 111.
Selden, procedure of trial by battle by, 122, 124.
Sennacherib, will of, 310.
Shakespeare’s reference to trial by battle, 136, 137.
Shakespeare’s reference to maiden-rent (note), 30.
Shakespeare, mention of the gemmal ring, by (note), 35.
Shakespeare, illustrations of _peine forte et dure_, by, 192, 193.
Shakespeare’s reference to sanctuary, 269.
Shakespeare’s will, 324.
Shechem’s negotiation for Dinah, 31.
Shells, used for votes on Athenian recall, 82.
Shoe, custom of throwing, 35.
Sisamnes, recall of (note), 78.
Smock-marriages, 37, 42.
Solomon, polygamy of, 15.
Sorcery, law of, 45, 70.
Spartans, marriages by capture, among (note), 13.
Stafford, Humphrey, sanctuary claimed by, 262.
St. Cunigundi, trial of, by ordeal, 159.
Standing mute (See _peine forte et dure_), 172, 195.
Standing mute, plea of not guilty, for, in 1827, 190.
Stedinger, persecutions of, 51.
Stocking-throwing, 34, 37.
Stocks, punishment, by, 304.
Stone’s case of clergy, 232.
Stoning to death, punishment by, 279.
Strangeways, case of Major, in 1657, 185.
Strangling, punishment by, 279.
Surgeons, under Hammurabi, 81.
Sweden, trial by battle in, 111.
Syracuse, the recall in, 86.
T
Tartars, marriages by (note), 13.
Templars, persecutions of, 52.
Testimony, value of, in time Henry II., 154.
Teutberga, trial of, by ordeal, 161, 162.
Themistocles, recall of, 83.
Testament (See wills, quaint and curious), 307, 334.
Thackeray’s references to trial by battle, 139.
Theodosius, law against marriages by, 17.
Thibet, polyandry in, 16.
“Third Law”, wager by, in 14th century, 204.
Thomas A’Becket, and benefit of clergy, 226.
Treason, battle could be stopped during trial of, 116.
Treason, benefit of clergy did not extend to, 228.
Trent, Council of, requiring religious ceremony, 20.
Trials in ancient Babylon, 79.
Trial by battle, 109, 140.
Trial by ordeal, 141, 170.
Trial of witches, 60, 70.
Tudor, Owen, claimed sanctuary, 260.
U
Unclergyable crimes, 233.
Uncles and nieces, marriages between, 18.
United States, clergy claimed in, 239, 241.
United States, clergy abolished in, in 1790, 236.
United States, cases of _peine forte et dure_, in, 187, 190.
United States, abolished _peine forte et dure_, by act of Congress,
in 1825, 191.
United States, punishment by ducking, in, 303, 304.
United States, law wager in, 219.
Upton, trial by battle of, 130.
_Usus_, marriage by, under Roman law, 16.
V
Varus, Quintilius’ observations on trial by battle, 110.
Virgil, will of, 311.
Vladimir, his espousal of the daughter of Raguald, 36.
Votes, in Athenian recall, 82.
W
Wager of law, 196, 220.
Wager of law, definition of, 196.
Wager of law, origin of, 199.
Wager of law, procedure in, 197, 198.
Wager of law, in ancient Babylon, 197.
Wager of law, under Mosaic code, 196.
Wager of law, under Alfred, 197.
Wager of law, under Wihtraed, 200.
Wager of law, description of, by Bracton, 201, 202.
Wager of law, compurgators in, 198.
Wager of law, by oath-helpers, 205, 207.
Wager of law, observations of Coke, on, 200.
Wager of law, in cases of _Nil debit_, 197.
Wager of law, kinds of, in criminal cases, 204.
Wager of law, in debt and detinue (note), 207.
Wager of law, trial of churchmen by, 210.
Wager of law, case of Pope Pelagius I., in 6th century, 209.
Wager of law, under Saxons, 197.
Wager of law, under Glanville, 200.
Wager of law, irrational nature of procedure in, 208.
Wager of law, and assize of Clarendon, in 1166, 209.
Wager of law, under Edward III., 202.
Wager of law, under Henry VI., 206, 207, 212.
Wager of law, under Henry VIII., in 1527 (note), 213.
Wager of law, statute of Elizabeth on, 208.
Wager of law, abolished in England, in 1833, 208.
Wager of law, in United States, 219.
Wager of law, case of Gregory of Tours, 209.
Wager of law, trial of Alice Colynbourgh, by, in 1435, 211.
Wager of law, Slade’s case, 213.
Wager of law, case of Robert Welby, in 1492, 213.
Wager of law, miscellaneous cases of, 203, 204.
“Waking” witches, 59.
Waldenses, persecution of the, 53.
Warbois, witches of, 56.
Washington, will of General, 327.
Water, ordeal by, 143, 144, 149.
Webster, Daniel, plea of law wager by, 219, 220.
Welby, case of Robert, in law wager, in 1492, 213.
Wenham, Jane’s’ trial for witchcraft, 61.
Westminster, statute of, on _peine forte et dure_, 178.
Weston, Sir Richard, case of, in 1615, 184.
Wheel, punishment, by, 301.
Wild beasts, punishment by exposure to, 279.
Will, definition of, 307.
William Rufus, ordeals under, 156.
William the Conqueror, ordeals, under, 153.
William the Conqueror, sanctuary, under, 252.
William III., judges under, 94.
William IV., abolished wager of law, in 1833, 208.
Will, of Jacob, 309.
Will, of Sennacherib, 310.
Will, of Aristotle, 310.
Will, of Plato, 310.
Will, of Virgil, 311.
Will, of Henry II., 315.
Will, of John of Gaunt, 320.
Will, of Katherine of Aragon, 321.
Will, of Shakespeare, 324.
Will, of Jeremy Bentham, 324.
Will, of William Penn, 328.
Will, of Benjamin Franklin, 326.
Will, of Chief Justice Marshall, 327.
Will, of General Washington, 327.
Wills, quaint and curious (See quaint and curious wills), 307, 334.
Wills, in ancient Egypt, 309.
Wills, under Cnut, 312.
Wills, in Anglo-Saxon, days, 312.
Wills, during Glanville’s time, 313.
Wills, under Edward IV., 317.
Wills, under Edward VI., 318.
Wills, effect of primogeniture on, 317.
Wills, effect of church’s influence, on, 314.
Wills, of 14th century, 319.
Wills, with charitable objects, 323.
Wills, to animals, 322.
Wills, poetic, 330, 333.
Wills, in fiction, 332.
Wisdom of independent judiciary, 106.
Witch, definition of, 45.
Witchcraft, law of, 45, 70.
Witchcraft, under Mosaic law, 46.
Witchcraft, under Constantine, 48.
Witchcraft, law of Charlemagne against, 50.
Witchcraft, prohibited by Anglo-Saxon laws, 49.
Witchcraft, persecution of the Stedinger under law of, 51.
Witchcraft, in England, 70.
Witchcraft, laws against in England, 57, 58.
Witchcraft, in France, 70.
Witchcraft, in Scotland, 57.
Witchcraft, in Scotland, under Queen Mary, 56.
Witchcraft, persecutions of the Templars, 52.
Witchcraft, authorities upon, 70.
“Witch of Walkerne”, 61.
“Witch-finder General”, 59.
Witches, trial of by Hammurabi’s code, 46.
Witches, trial of by Mosaic law, 46.
Witches, trial of by law of Twelve Tables, 47.
Witches, punishment of, 59.
Witches, of Warbois, 56.
Witch-mania in Europe, 54, 59.
Witch-trials, at Salem, 62, 68.
Witnesses, compurgation by, 158.
Writ of right, procedure in battle under, 116.
Writ of right, procedure under, in full, 120, 122.
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