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| author | nfenwick <nfenwick@pglaf.org> | 2025-04-11 14:21:02 -0700 |
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| committer | nfenwick <nfenwick@pglaf.org> | 2025-04-11 14:21:02 -0700 |
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diff --git a/75835-0.txt b/75835-0.txt new file mode 100644 index 0000000..dabf19f --- /dev/null +++ b/75835-0.txt @@ -0,0 +1,13116 @@ + +*** START OF THE PROJECT GUTENBERG EBOOK 75835 *** + + + + + + 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. + + + +*** END OF THE PROJECT GUTENBERG EBOOK 75835 *** |