The Customs of Old England Part 9

Serjeant Ballantine alludes to himself as treasurer. He was the last to fill that office, and it fell to his lot, as such, to wind up the affairs of the ancient society, and so, in a sense, to perform its obsequies. The fiat had gone forth that no judge should be required henceforth to take or to have taken the degree of serjeant-at-law (36 and 37 Vict., c. 66, s. 8), and, as this was tantamount to the abolition of the order, it was resolved to sell the property of the inn. The last meeting was held on April 27, 1877.

JUDICIAL

CHAPTER XI

THE JUDGMENT OF G.o.d

Ancient judicial theory and practice comprehended not merely trials before a regular tribunal, in which the merits of a case were duly ascertained by the joint efforts of judge, counsel, and a.s.size, but also an alternative method of arriving at the same result--namely, a solemn appeal to the bar of Almighty G.o.d. This reference was most common in criminal cases, but by no means restricted to them; resort was had to it in pleas respecting freehold, in writs of right, in warranty of land or of goods sold; debts upon mortgage or promise, denial of suretyship by sureties, validity of charters, manumission, questions concerning services, etc. All such quarrels might be submitted to the issue of the _duel_, which was pre eminently the means of invoking the judgment of G.o.d. To us no proceeding appears less effectual or more cruel, but even so wise a man as Dante admitted the fairness of it.

Before treating of the duel it is expedient to deal with some Anglo-Saxon customs, which survived the Norman Conquest, and were founded on the same principle as the duel. The simplest of these processes was purgation by oath. Let us take the case of a person accused of theft. If he was a freeman and had hitherto borne a good name, all that was necessary was that he should purge himself by his oath. Suppose, however, that he had been previously inculpated. In that case he had to clear himself with what was termed his twelfth hand--that is to say, twelve lawful men had to be nominated, who would swear to his innocence. Should they refuse, there was nothing for it but some form of the ordeal--a subject which will engage our attention presently.

Meanwhile it may be pointed out that purgation by oath was itself a distinct appeal to the Almighty. It was believed that perjured persons incurred the danger of becoming dwarfs, or of their hands remaining attached to the Gospels or relics on which they swore. Persons guilty of this offence were compelled to purge themselves by the ordeal.

The system, resting on the sanctions of religion and honour, was not suited for general application, and there is no doubt that it was abused. Confining ourselves to University experience, the bad effects of the practice are exposed in a protest entered by Dr. Gascoigne in the Chancellor's Court-book at Oxford, wherein he cautions his successors to exercise the greatest care in admitting people to the privilege, and counsels them to withhold the name of the accuser from the accused. He states that cases have come under his notice in which individuals have not only perjured themselves, but in private have not blushed to acknowledge it; and he shows very plainly the futility of the system by affirming that if a townsman objected to anyone claiming compurgation, he ran a risk of being a.s.saulted, maimed, and even murdered. The date of this entry is 1443. It may be added that the majority of the cases were those of incontinence; and among other charges mention is made of embezzlement and attachment of a new doc.u.ment to an old seal.

For details of procedure we may glance at the very full accounts preserved in the records of the City of London, where there were in operation three sorts or forms of compurgation, by which persons appealed, impleaded, and accused might obtain acquittal. The first was termed the Great Law, and had respect to murder and homicide. The second, the Middle Law, regarded the crime of mayhem, or corporal hurt, by which a man lost the use of any member that was or might be any defence to him in battle. The third law applied to insults, batteries, wounds, blows, torts, effusion of blood, and similar injuries inflicted at the season of the Nativity, the week of Pasque, and at Pentecost.

An accused person desiring to purge himself by the Great Law was required to observe the following order: He had to make an oath in his own person that he was innocent touching the felony and breach of the King's peace, and the entire crime laid to his charge--"So help me G.o.d and these hallows!" (i.e., the Gospels on which he was sworn). After that six men had to swear that, according to their privity and knowledge, he had made a sound oath. Then the accused repeated the oath, and was supported by the sworn testimony of six more witnesses. So it went on until thirty-six sworn men had testified in his favour.

With regard to the impanelling of this body it was the custom in London to choose one of the number from the part of the city east of Walbrook and the other half from the part west of Walbrook. They were to be of the liberty of the city, honourable men not kinsmen of the accused; and the selection was made in his absence. He was then summoned, and the list of names having been read over to him, he might indicate to the Mayor and Aldermen any that he held suspect. If he produced reasonable grounds, the names were erased and others subst.i.tuted for them. When, at length, he was content, he placed himself in the hands of this jury as regarded the purgation of the charge. The names of the thirty-six persons were delivered to the Justices of the King, before whom the accused had subsequently to appear and wage his law.

The same rules were observed in the case of the Middle Law, except that the accused had to make only three oaths and a panel of eighteen sufficed. In the Third Law the accused made no more than one oath and the panel was reduced to six. These were to be of his vicinage, but not bound to him by the tie whether of blood or marriage. Where a non-freeman was charged with homicide, forty-two compurgators were required, this disadvantage being due to the prejudice of the citizens against "foreigners," of which further evidence will be adduced later.

On the other hand if the prosecution were on the part of the Crown, seven compurgators were deemed enough, the reason being that the King had not the personal interest in bringing a criminal to justice of a private appellor.

The date of the election of the compurgators was fixed, at the will of the Justices, and on that day fortnight the accused had to answer the appeal, unless the Justices chose to a.s.sign a longer term. That is, according to one statement. Another version sets forth that, by the law and liberty of the city, a term of forty days was given for answer to an appeal in a particular case; and this may mark the extreme limit usual.

Probably also it may be connected with the period during which a criminal was commonly allowed to avail himself of the right of sanctuary. If the accused did not appear on the day named for the trial, he was outlawed at the folkmoot. Meanwhile he was delivered in bail to twelve men, provided that there was some surety sufficient for the payment of a hundred shillings in case they did not produce him at the appointed time. Anyone appealed and attached for homicide could not demand "recognition" until he had acquitted himself of the appeal made against him; and meanwhile, if he could not find sureties, he was committed to prison. If the accused was outlawed and abjured the realm, the sureties were acquitted out of respect for the Church.

By the word "recognition" in the above description is apparently intended an inquisition into the circ.u.mstances by an a.s.size or jury of twelve sworn men under the presidency of the Justices. In the case of an appeal--that is, where there was a private prosecutor, who was bound to have some interest in the matter, e.g., as a blood-relation--this was not allowed, and the onus of proving his innocence was thrown on the accused.

It was otherwise when a man was taxed with homicide by the voice of public fame. He was then attached either by pledges or by imprisonment; and the Justices held a very strict and careful inquisition into the case, as the result of which the accused might be wholly absolved, or he might be compelled to resort to compurgation. The compurgators, few or many, were at once judge, jury, and witnesses; and the final issue of the proceedings lay with them and the accused himself, the Mayor and Alderman making the preliminary arrangements and the King's Justices seeing that the forms were duly observed.

We saw at the outset that purgation by oath was a privilege only permitted to persons of good reputation, and that failure to secure the testimony of his neighbours to his innocence, where his reputation had been damaged, subjected a man to the judgment of water or fire. In Saxon times every freeman had his _borh_ or surety, who presented him, if he was accused. Should he be _tyht bysig_, of evil repute, he was forced to undergo the triple ordeal without more ado; but if his lord gave him a good character and seven of his neighbours came forward and swore that oath had never failed him and that he had never paid _theof gyld_ (fine for thieving), then he might make his election between a pound-worth oath or single ordeal. If the seven persons summoned declined to take the oath, the triple ordeal was inevitable, and if the guilt of the accused was established by this process, he had to restore to the accuser twofold, pay a fine to his lord, and find sureties that he would abstain from evil for the future. If he absconded and avoided the ordeal, the _borh_ was obliged to pay the _ceap-gyld_ or monetary value of the article stolen to the accuser and the fine to the lord. If the accused happened to be _theow man_ (servant), and he failed in the ordeal, the law was that he should be branded the first time; the second time, there was no _bot_, or reparation, but the head! Finally, the appellor was obliged to swear by seven lawful men, who were to be named, that he had laid upon the accused the necessity of the ordeal neither from hatred nor from any other cause but that he might acquire his right.

There were various forms of ordeal. A man might be tried by fire or water, and there was a cold-water as well as a hot-water test. Moreover, the ordeal might be single or triple, according to the degree of immersion or the weight of the iron employed. The laws of Athelstan prescribe that in the hot-water ordeal, if single, the hand should dive after the stone up to the wrist; if triple, up to the elbow. Similarly, by the laws of King Edgar, the weight of the iron for the single ordeal was to be one pound, and for the triple ordeal three pounds.

The ordeal, being the Judgment of G.o.d, was distinctly a religious ceremony, and the whole of the proceedings were in the hands of the clergy. The three days following the accusations were spent in prayer and fasting, and the rite, varied according to the nature of the ordeal, was performed in a church.

THE JUDGMENT OF THE GLOWING IRON

The iron was placed before the altar, whence the priest, clad in full canonicals with the exception of the cope, removed it with a pair of tongs to the fire, singing as he did so the hymn of the Three Children, _Benedicite, Omnia, Opera_. Over the place where the fire was he then recited the prayer: "Bless, O Lord G.o.d, this place, that there may be for us in it sanct.i.ty, chast.i.ty, virtue, and victory, and sanctimony, humility, goodness, gentleness, and plenitude of law, and obedience to G.o.d the Father, and the Son, and the Holy Ghost."[9]

We learn from the laws of Athelstan that no man was permitted to enter the church, after the fire had been borne in wherein the ordeal was to be heated, with the exception of the ma.s.s priest and the accused; and the latter had to measure with his feet nine feet from the stake to the mark. When the ordeal was ready two men were admitted on either side, who certified that the iron was of the required heat; and then an equal number of witnesses on either side having been summoned, were ranged along the church on each side of the ordeal. All were to be fasting and abstinent from their wives on the previous night. The ma.s.s priest then sprinkled them with holy water, let each of them taste the holy water, and gave them the book of the Gospels and the image of Christ's rood to kiss.

Whilst the iron was heating the priest celebrated ma.s.s, and after he had taken the Eucharist, he adjured the person who was to be tried, and made him also take the Communion. From the time the hallowing was begun no one was allowed to mend the fire, but the iron rested on the hot embers until the last collect. It was then laid on the _stapula_, and the priest, having sprinkled holy water over it, recited the prayer: "The blessing of G.o.d the Father, the Son, and the Holy Ghost, descend upon this iron for the discerning of the right judgment of G.o.d." Meanwhile all were enjoined to observe complete silence "except that they earnestly pray to Almighty G.o.d that He make manifest what is soothest."

The accused then proceeded to the ordeal and carried the iron the measured distance--nine feet, divided into three equal parts, over which the person had to pa.s.s in as many steps regulated by signal. His hand was thereupon enclosed in an envelope under seal, and so remained until the expiration of three days, when the envelope was removed and an examination took place to see whether the hand was foul or clean within.

If festering blood was found in the track of the iron, the accused was judged to be guilty; if otherwise, he stood acquitted. An infraction of the rules not only rendered the ordeal void, but was punishable by a fine of 120 shillings.

THE JUDGMENT OF THE PLOUGHSHARES

Instead of carrying iron of a given weight a stipulated distance, an accused person might traverse barefoot a certain s.p.a.ce in which nine hot ploughshares were laid lengthwise. To this species of judgment Queen Emma, mother of Edward the Confessor, is alleged to have submitted, when charged with adultery with Alwyn, Bishop of Winchester. The precise nature of this trial is more than usually obscure, and there is some reason for doubting whether Blackstone's account is accurate. He states that the accused person was blindfolded and that the ploughshares were placed at irregular intervals--evidently with the design that the person might escape contact with some of the irons: possibly all. Blackstone's authority, Rudborn, in his story of the trial of Queen Emma, conveys a totally different impression of the proceedings--at any rate, on that occasion. He says distinctly that she was _not_ blindfolded, and that she pressed each ploughshare with the whole weight of her body: "Emma vero nullam mamphoram sive pannum ante oculos habens--super novem vomeres novem pa.s.sus faciens et singulos eorum totius corporis pleno pressens pondere."

On such occasions the following collect was in use: "Lord G.o.d Omnipotent ... we invoke Thee, and, as suppliants, exhort Thy majesty, that in this judgment and test Thou wilt order to be of no avail all the wiles of diabolical fraud and ingenuity, the incantations either of men or of women; also the properties of herbs; so that to all those standing around, it may be apparent that Thou art just and lovest justice, and that there is none who may resist Thy majesty. And so, O Lord, Ruler of the heavens and the earth, Creator of the waters, King of Thy whole creation, in Thy holy name and strength, we bless these ploughshares, that they may render a true judgment; so that, if it be so that that man is innocent of the charge in this matter which we are discussing and treating of amongst us, who walks over them with naked feet; Thou, O omnipotent G.o.d, as Thou didst deliver the three youths from the fiery furnace, and Susanna from the false charge, and Daniel from the den of lions--so that Thou mayest see fit, by Thy potent strength, to preserve the feet of the innocent safe and uninjured. If, moreover, that man be guilty in the aforesaid matter; and, the Devil persuading, shall have dared to tempt Thy power, and shall walk over them; do Thou, who art just and a Judge, make a manifest burn to appear on his feet, to Thy honour and praise and glory; to the constancy and confidence in Thy name, moreover, of us Thy servants; to the confusion and repentance of their sins of the perfidious and blind; so that, against their will, they may perceive, what willingly they would not--that Thou, living and reigning from ages to ages, art the judge of the living and the dead.

Amen."

THE JUDGMENT OF THE BOILING WATER

When the ordeal was by boiling water, the priest first performed ma.s.s and then descended to the place of trial, bearing a cross and a book of the gospels. After he had chanted a litany, he exorcized and blessed the water, which was to be boiled. He then stripped the accused of his clothes and arrayed him in ecclesiastical vestment of the kind worn by an exorcist or a deacon; sprinkled some of the water over him, caused him to drink of it, and gave him the cross and the gospels to kiss. The priest having said, "I have given to thee this water for a sign to-day,"

wood was laid under the cauldron, which might be of iron, of bra.s.s, of lead or of clay. As the water grew warmer, prayers were recited by the priest, and it continued to be heated until it lowed to boiling. The accused then said the Lord's Prayer, and signed himself with the sign of the cross; and the cauldron having been quickly set down beside the fire, the judge held suspended in the water a stone, which the accused, in the name of G.o.d, had to draw forth at the depth of his wrist or his elbow, according as the ordeal was single or triple. On the third day his hand was inspected, and his innocence or guilt determined.

THE JUDGMENT OF COLD WATER

The cold water ordeal is in some ways the most interesting of all. In this instance the accused was thrown into a pond or tank, which was technically described as the _fossa_ or "pit." If he floated, he was adjudged guilty; if he sank, his innocence was regarded as divinely proved. It is sometimes stated "if he floated without any appearance of swimming," but swimming appears to have been precluded if it be true that his thumbs were tied to his toes, or he was bound hand and foot!

Grimm explains the principle of this test by tracing it to an old heathen superst.i.tion that the holy element, the pure stream, would receive no misdoer within it. King James I. in his "Demonologie,"

however, lays it down in the case of witches that they having renounced their baptism, the element with which the holy rite is performed will justly reject them. This elucidation is in exact accord with the ancient formula of consecration p.r.o.nounced over the accused, which was as follows:

"May omnipotent G.o.d, who did order baptism to be made by water, and did grant remission of sins to men through baptism; may He, through His mercy, decree a right judgment through that water. If, namely thou art guilty in that matter, may the water which received thee in baptism not receive thee now; if however, thou art innocent, may the water which receive thee in baptism receive thee now. Through Christ our Lord."

The priest afterwards exorcized the water, saying to it:

"I adjure thee, water, in the name of the Father Almighty, who did create thee in the beginning, who also did order thee to be separated from the water above ... that in no manner thou receive this man, if he be in any way guilty of the charge brought against him; by deed, namely, or by consent, or by knowledge, or in any way; but make him to swim above thee. And may no process be employed against thee, and no magic, which may be able to conceal that" [i.e., the circ.u.mstance of his guilt].

THE JUDGMENT OF THE MORSEL

A fifth form of the ordeal was the test of eating consecrated bread and cheese. This was known as the _corsned_, or morsel of execration. The priest wrote the Lord's Prayer on the bread, of which he then weighed out a certain quant.i.ty--ten pennyweights--and so likewise with the cheese. Under the right foot of the accused he set a cross of poplar wood, and holding another cross of the same material over the man's head, threw over his head the theft written on a tablet. He placed the bread and cheese at the same moment in the mouth of the accused, and, on doing so, recited the conjuration:

"I conjure thee, O man, by the Father and the Son and the Holy Ghost and by the four-and-twenty elders, who daily sound praises before G.o.d, and by the twelve patriarchs, the twelve prophets, the twelve apostles, the evangelists, martyrs, confessors, and virgins, by all the saints and by our Redeemer, our Lord Jesus Christ, who for our salvation and for our sins did suffer His hands to be affixed to the cross; that if thou wast a partner in this theft or didst know of it, or hadst any fault, that bread and cheese may not pa.s.s thy gullet and throat, but that thou mayest tremble like an aspen-leaf, Amen; and not have rest, O man, until thou dost vomit it forth with blood, if thou hast committed aught in the matter of the aforesaid theft. Through Him who liveth."

The following prayer and exorcism were also used and ordered to be repeated three times:

"Holy Father, omnipotent, eternal G.o.d, maker of all things visible, and of all things spiritual, who dost look into secret places, and dost know all things, who dost search the hearts of men, and dost rule as G.o.d, I pray Thee, hear the words of my prayer; that whoever has committed or carried out or consented to that theft, that bread and cheese may not be able to pa.s.s through his throat.

"I exorcize thee, most unclean dragon, ancient serpent, dark night, by the word of truth, and the sign of light, by our Lord Jesus Christ, the immaculate Lamb generated by the Most High, conceived of the Holy Ghost, born of the Virgin Mary--Whose coming Gabriel the archangel did announce; Whom seeing, John did call out: This is the living and true Son of G.o.d--that in no wise mayest thou permit that man to eat this bread and cheese, who has committed this theft or consented to it or advised it. Adjured by Him who is to come to judge the quick and the dead, so thou close his throat with a band--not, however, unto death."

THE JUDGMENT OF THE PSALTER

Thieves were sometimes tried by means of two pieces of wood and a psalter. One of the pieces having a b.u.t.ton on the top was inserted in the psalter above the verse: "Thou art just, O Lord, and righteous are Thy judgments." The book was then closed and pressed firm, and then the projecting b.u.t.ton was placed in a hole made in the other piece of wood, from which the psalter now hung. The wood was held by two persons on opposite sides of the psalter, and the accused having been placed before them, one of them said thrice to the other: "He has the thing" (i.e., the stolen article). The other thrice answered: "He has it not."

Thereupon the priest declared: "This He will deign to make manifest unto us, by Whose judgment are ruled things terrestrial and things celestial.

Thou art just, O Lord, and righteous are Thy judgments. Turn away the evils of Thy enemies, and destroy them with Thy truth."