Part 5

The last of our story is not yet. Certain places still assumed the right of giving shelter against civil process. When the bailiffs invaded the liberty, the whole population forthwith set on, and pommelled them so lustily that they were fortunate if they escaped sound in limb. The precincts of Whitefriars and the Savoy were the worst places in London. The first, renowned in slang, nay, in literature, as Alsatia, because (some explained) it neighboured the Temple on the East, as Alsace did France, was a base and villainous Bohemia. Ram Alley (now Mitre Court), a local Lombard Street, Salisbury Court (now Salisbury Square) were its chief ways, though probably all between Fleet Street and the river, which was not the Temple, held of this lawless republic. A bully or bravo, or squire of Alsatia was a cant name for a penniless and violent fellow of the time. He is pictured by Otway in his _Soldier's Fortune_ with flopping hat pinned up on one side, with a tawdry weather-beaten peruke, dirty linen, and a long scandalous iron sword jangling at his heels. The sheriff with the _posse comitatus_ did on occasion raid Alsatia, but his prey, if too weak to fight, had ever timely warning to escape by land or water to some other like burrow. _The Fortunes of Nigel_ tells as much of the place as the general cares to know, and there is much curious matter mined out by the zealous antiquary as to other like places of refuge in the capital. Thus Fullwood's, sometime Fuller's Rents, was related to Gray's Inn as Alsatia to the Temple. In 1673 the gentlemen of that ancient house so far forgot themselves as to engage in "pumping" some bailiffs who attempted to take goods from out the Rents upon an execution. "They were charged with a body of thirty lusty bailiffs," and a "strong ryot" ensued. Possibly they recollected that their most illustrious fellow-member, "broad-browed Verulam," had taken refuge there some sixty years before, a circumstance which gave my Lord Coke occasion to "gall the kibe"--as indeed he never lost any chance to do--of his great contemporary. Then there was the mint in Southwark, whereto an ex-poet laureate, "poor Nahum Tate," as Dr. Johnson calls him, was driven by extreme poverty. Pope's cruel satire pictures it half Grub Street half Bedlam, the last refuge of the hack and the poetaster. The Clink and Deadman's place are now forgotten, whilst Baldwin's Gardens and the Minories have a more commonplace reputation.

About a century after James's Act, Parliament again interfered, and professed to strip the "pretended privileged places" of every shred of exemption, but it required two other statutes, the 9 Geo. I. c. 28, 1722, and the 11 Geo. I. c. 22, 1724, to make the law's process as effectual there as elsewhere.

TRIAL BY ORDEAL

Before the Conquest, and for long after, local justice in England was administered by two courts--that of the Hundred and that of the Shire. The first nominally consisted of the freeholders of the district, but the real business was done by a Committee of Twelve. The second was made up of the chief men of the district, and representatives from each township; but here, again, the work was left to a select few. If a man were charged with (say) theft before either court, he was tried in a fashion vastly different from that obtaining to-day. The complainant was sworn on the holy relics: "By the Lord I accuse not this man either for hatred, or for envy, or for unlawful lust of gain." This solemn accusation made out a _primâ facie_ case against the suspect, who instantly rebutted oath with oath. "By the Lord I am guiltless, both in deed and in counsel of this charge." Then he produced twelve compurgators, who swore by the Lord, "The oath is clean and unperjured which this man hath sworn"; then the prisoner went free. These compurgators were witnesses to character. Their testimony had no reference to the particular facts of the case; they simply alleged their belief in accused's innocence, but sometimes their oath "burst" (as the curious technical phrase ran), that is, he could not find compurgators, or those he produced said little good of him; or he was a stranger of whom nothing was known; or a Welshman whose veracity has never been an article of faith; or the accused was caught with his booty; or was a woman; or the charge was peculiarly odious, as treason, or witchcraft; then in all these cases there was an appeal to the _Judicium Dei_, the Creator was called upon to prove beyond dispute the guilt or innocence of the accused.

Trial by Ordeal was more ancient than the Church itself. There are traces of it in the Old Testament; it is discussed in great detail in the Laws of Manu; a famous passage in the _Antigone_ (verses 264-267) reveals it as well known to the Greeks, and before Augustine came, or St Columba preached, it prevailed in some form or other in Britain. Yet the higher ecclesiastical powers continually thundered against it, and finally brought about its disuse. There were several varieties, but many forms were common to all. First, there was the ordeal of cold water, chiefly reserved for the baser fellow. As a preliminary the accused submitted to a fast of three days, during which he was watched by a priest, then he was taken to church to hear Mass; and was adjured by Father, Son, and Holy Ghost, by the gospels and relics of the saints, by everything held most sacred, not to partake of communion if he were guilty. Next came the _adjuratio aquæ_, wherein the water was enjoined to cast him forth if he were guilty, but to receive him into its depths if innocent. And now, having been stripped, he kissed the Book and the Cross, was sprinkled with holy water and was cast in, to float if he were guilty, to sink if he were not. But there was the rub--how about death by suffocation? Sir James Stephen suggests that it was all a mode of happy despatch! Or (one fancies) it might be an elementary form of the famous verdict "not guilty, but don't do it again," with the chance of doing it again effectually provided against. On the other hand, a recipe for immersion in a thirteenth century MS. of the Monastery of Becca reduces the proceedings to the level of farce. The hands of the accused were tied, and a rope was put round his waist; "and let a knot be made in the rope as high up as the longest hair of the man's head will reach, and then in this way let him be gently lowered into the water; and if he sinks down to the knot, let him be pulled out as innocent; if not, let him be adjudged guilty." How _not_ to sink under such conditions? The practice of testing witches by throwing them, securely tied, into the nearest pond was clearly a survival of this form of ordeal.

In the ordeal by hot water the accused, plunging his hand to the wrist in the boiling fluid, brought forth a stone suspended therein by a cord. (This was the Single Ordeal, and it became the Triple when the plunge was up to the elbow.) The arm was done up in bandages not to be removed till after three days; if the scald had healed the man was innocent, if it still festered he was guilty. In the ordeal by hot iron, a piece of red-hot metal was carried a distance of nine feet; it was then dropped and the hand was bandaged as already set forth. A knight had to thrust his fist into a glowing gauntlet; another form was a walk with naked feet over a sequence of red-hot ploughshares. We have a picturesque circumstantial and absolutely untrustworthy monkish account of how Emma, mother of Edward the Confessor, being suspected of an all too intimate acquaintance with Alwyn, Bishop of Winchester, underwent this trial. She took nine steps for herself and five for the Bishop, fixing her eyes the while on heaven. "When shall we reach these ploughshares?" queried she. How agreeable a surprise to find her little promenade already past and done with! No need to swathe _her_ feet, the red-hot iron had marked them not at all!

The last mode was the _Corsnæd_, or Cursed Morsel--a piece of barley-bread (or cheese), one ounce in weight. This "Creature of Sanctified Bread" was adjured, in terms terrible enough to make the sinner quake, to stick in the guilty throat, and cause the guilty jaws to be clenched and locked up. If in spite of all it went softly down, who dared to refuse belief in the man's innocence? It was chiefly for the clergy, and from every point of view must have been the most agreeable of the three, though a legend as untrustworthy as that of Emma ascribes to it the death of Earl Godwin, father of Harold. As he sat at meat with Edward the Confessor, the king brought up an old scandal about his brother's murder, "May God cause this morsel to choke me," passionately exclaimed the earl, "if I am guilty of the crime!" Edward blessed the bread; Godwin made an effort to swallow, choked and died. "Take away that dog," said the monarch in what would seem an outburst of savage glee. This was on April 15th, 1053, thirteen years before the Conquest. Godwin in truth died of a fit. It soon was the policy of the monkish chroniclers to write down the national party of which he had been the head, a fact which explains the fable were it worth serious examination. More interesting to note the survival of the rite in the still current rustic formula, "May this bit choke me if I lie!" If the ordeal proved a man guilty, the punishment was fine, death or outlawry, but even if he escaped, the Assize of Clarendon (1164) ordered that, in certain cases, he should abjure the realm. By that time compurgation was gone; in 1215 the Lateran Council issued a solemn decree against Trial by Ordeal; and soon after it had vanished from English law. There is a curious reference to it in the State Trials as late as 1679. John Govan, a Jesuit priest, was indicted in that year at the Old Bailey for an alleged share in the Popish Plot. With some hesitation he claimed the right of Trial by Ordeal as an ecclesiastical privilege of a thousand years' standing, but Scroggs and North peremptorily refused to listen to his plea. "We have no such law now," said the latter. Sir James Stephen assures us that the formula, "By God and by my country," wherein, till 1827, a prisoner must answer the question how he would be tried, sets forth a memory of it.

Of the customs akin to Trial by Ordeal only one can find mention here. It was held that if the murderer touched, nay, even approached, the body of his victim, the wounds gushed forth blood, thus in _Richard the Third_, "dead Henry's wounds" are seen "to open their congealed mouths and bleed afresh" as Gloucester draws near the bier. And according to one of the picturesque legends of English history, when Richard the Lion-Heart encountered at Fontevrault his father's body, the blood gushed from the nostrils of the dead king, a proceeding which, as Richard's offence was at the worst but unkindness, showed a somewhat excessive sensibility on the part of the royal clay. The oddest and latest case of all is from Scotland. In 1688 Philip Stanfield was tried for parricide at Edinburgh; one count of the indictment stated how his father's body had bled at his sacrilegious touch. The Lord Advocate, Sir George Mackenzie of Rosehaugh, the "Bluidy Mackenzie" of covenanting legend and tradition, conducted the prosecution, and philosophic and cultured jurist as he was, he yet dwelt with much emphasis on the portentous sign. There was no lack of more satisfactory if more commonplace evidence, and young Stanfield assuredly merited the doom in the end meted out to him.

WAGER OF BATTLE

Judicial combat is a fascinating yet perplexing subject, having many side-issues whereupon the writer must sternly refrain. The case of David and Goliath was gravely urged (A.D. 867) as a precedent to Pope Nicholas I., and by him disdainfully put aside. The thing itself was unknown in Roman law, though the old legend of the Horatii and Curatii was part of its lore. But it was of the essence of chivalry, and the duel and the prize-fight were its legitimate offspring. "Where the hazel grew," so Mr George Nelson, our chief modern authority, picturesquely defines its region, but our attention here must be limited to England. That it was _not_ with us before the Conquest moves Bishop Stubbs to something of the scholar's mild amazement. The Normans, it seems clear, brought it with them from their continental home. A native accused of a serious crime by one of the invaders was tried by ordeal of battle, but a Norman had choice of the oath as well, and it was also used to decide which of the claimants should have a disputed piece of land. After the legal reforms of Henry II., it became an alternative proceeding in a limited class of actions. These were the Writ of Right (the most solemn method of trying title to land), accusations of murder, and treason. It had place only in appeals, in actions, that is to say, brought not in the king's name, but by an interested subject here called the Appellor, against whom the accused or Appellee might offer to prove his innocence by his body. The Appellor must accept the challenge unless he were maimed by age or wound. Likewise he could "Oust the Battle" (_i.e._ prove this mode of trial improper) if the accused were caught red-handed. The parties exchanged gloves, and gave pledges or wads (_vadiare bellum_); whence came Wager of Battle, afterwards the technical term for the whole process. In civil cases, if the litigants came to terms, the judge exacted a fine, called the Concord, while he who fought and lost must pay the mulct of Recusancy. In criminal matters he who resisted not till the stars shone forth was branded as Recreant or Craven and was forthwith strung up, and all his goods were declared forfeit. The Charters of Exemption purchased from overlord or king show how hateful the system was to the old English citizen. Henry I. enacted for a consideration that no Londoner should do battle, and in due course the men of Winchester, Lincoln, and Northampton obtained the like privilege.

The story of Leicester is worth the telling. In the time of Henry I. Earl Robert of Mellant ruled the town. It chanced that two burghers, Nicholas and Jeffrey, waged battle on a plea of land. For nine long hours they mauled each other with varying fortune, when one of them took to flight, and staggered, all unwitting, on the edge of a pit. The other saw his danger, and remembered that they twain were kinsmen. "'Ware o' the pit," he shouted; "turn back, lest thou fall therein." The spectators so lustily roared their approval, that the Earl heard it in his castle, and he, after due enquiry, granted that in time coming twenty-four jurors of Leicester should determine all civic disputes. One strange product of Trial by Combat was the Approver: a rascal who turned king's evidence, and fought with his late companions. Sometimes he accused other malefactors, and if he came off victor in five combats he was released, and banished the country. This system fell into gross abuse, for the Approver, greedy of freedom or hush-money, appealed honest men right and left. In the chronicle of William Gregory the Skinner (1456) we have an account of a duel fought by one Thomas Whitehorne, a criminal, caught in the New Forest, and lodged in prison at Winchester, where he remained for about three years, fighting ever and anon. "And that fals and untrewe peler (= Appelar) hadde of the Kynge every day 1d. ob." At last a proposed victim retorted the lie in his throat, and said that "he wold prove hyt with hys handys and spende hys lyfe and blode a-pone hys fals body." Then the judge "fulle curtesly informed this sympylle man" that "he and the peler moste be clothyed all in whyte schepys leter." Also each must have a stave of green ash, three feet long, the point thereof "a horne of yryn i-made lyke unto a rammy's horne;" and if these ash-plants broke, then they "moste fight with hyr handys, fystys, naylys, tethe, fete, and leggys." Moreover, they must strive fasting on the "moste sory and wrechyd greene about the town;" but "Huyt ys to schamfulle to reherse alle the condycyons of thys foule conflycte." And we must follow Gregory's precept rather than his example.

The Appellee, asking for inquiry as to his character, was reported "a fyscher and tayler of crafte," and therewith the "trewyste laborer and the moste gentellyte." The peler, with brazen insolence, offered _his_ character for inspection. There was much dubiety as to where and how he had lived when at large, but "Hange uppe Thome Whythorne" was the response of every reference he tendered. At last the day came. The Appellee, as became an innocent man, told his beads, and prayed long and earnestly, and wept full sore, and all present prayed for and with him. The "fals peler" scoffed thereat. "Thou fals trayter," yelled he; "why arte thou soo longe in fals bytter beleve?" The defendant's sole answer was so lusty a thwack that his staff flew all to pieces. Thereupon the peler's stave was taken away from _him_; "ande thenn they wente togedyr by the neckys," so using teeth and fist, "that the lethyr of clothing and fleshe was alle to rente in many placys of hyr bodys." It fared ill at first with the "meke innocent." His opponent had him down on the ground, and near choked the life out of him. But presently the meek one got up on his knees, and (the combat not being under Queensberry rules), "toke that fals peler by the nose with hys tethe, and put hys thombe in hys yee, that the peler cryde owte ande prayde hym of marcy, for he was fals unto God and unto hym." The peler's subsequent record is of the briefest, but, one is thankful to add, of the most edifying description. "And thenn he was confessyd and hanggyd, of whose soule God ha' marcy." Amen. "_Victus est et susp_," so for epitaph wrote the official scribe against his name. And the exchequer parchments knew him and his "_1d. ob. per diem_" no more.

The Champion, now but the shadow of a name, was a nobler offshoot of the system. Originally a witness, he was finally indispensable in civil cases wherein--for a legal reason not here to be discussed--the parties themselves must not engage. He was the proper advocate for churchmen, for women, and for the Crown; and his last appearance for royalty was in 1820, at the coronation of George IV. The Dymocks have held the manor of Scrivelsby in Lincolnshire for centuries by this tenure, and possibly their representative claimed a part in the pageant on the two subsequent occasions, but to have him ride up Westminster Hall in full armour and clang his gauntlet on the floor (as he did of old) would have savoured too much of Drury Lane pantomime for the taste of a cynical age. The Champion's dress and bearing were minutely ordered. His head (_e.g._) was shaven, but whether this was to give no hold to his foe, or to fulfil some old superstition, is still in debate among the learned. In the end he was usually a hireling, which fact may very well have accentuated the absurdity of the system. At any rate, towards the close of the thirteenth century it was only kept alive by the approvers. Then Chivalry came with its Treason Duel, and by the time of Richard II. the Chivalry Court was in full swing. Its forms, mainly imported, were after this wise. Upon the accusation and the exchange of gloves, time and place were assigned for the duel, and here the lists were set and staked. There were two gates, and hard by each a pavilion--one eastward for the appellant, and the other westward for the defendant. To the south was the judge's seat; and right and left were benches for the high-born, while the commons were made free of the unenclosed field. Near the judge an altar was decked with relics; and not far off there stood a gibbet and a scaffold. Men-at-arms were stationed between the palisades. There were heralds in gay tabards, a priest in full canonicals stood at the altar--but it were wearisome to enumerate all the officials.

The trial was held not less than forty days after the challenge; and the time being come, the heralds demanded silence; and the appellant was summoned three times by voice and by sound of trumpet. As he marched forward he was addressed by the Constable, "Who art thou, and wherefore comest thou armed to the door of these lists?" His answer given, he was taken to his pavilion, and afterwards was made to swear on the altar that his cause was just. The other did in like fashion. Then the pavilions were replaced by chairs whereon the combatants might take an occasional rest. Napkins holding a loaf and a bottle of water were hung on opposite ends of the lists. The marshal cried three times "_Laissez les aller_," and the pair went at it. Far better death than defeat. If either yielded, the marshal cried "Hoo," to declare the combat at an end. Then the wretch was taken to the scaffold on which his shield was hung reversed, his sword was broken, and his spurs hacked from his heels. He was now taken to the church where a mass for the dead was sung over him, and at last he was haled to the gibbet where the hangman claimed his prey.

This is the form of judicial combat that caught the fancy of our great writers. In Chaucer's _Knight's Tale_ there is the elaborate set to between Palamon and Arcite. In Shakespeare's _Richard II._ there is the fiasco of Norfolk and Hereford. In _Lear_ we have the fight to the death between Edmund and Edgar, and "every schoolboy knows" The Templar's duel in _Ivanhoe_.

Chivalry passed, yet not the half-forgotten wager of battle. A claim so to determine a civil dispute was made in 1571, to the great perplexity of the lawyers. Elaborate preparations were made, but the case was settled in other fashion. Under James I. bills were introduced into Parliament to abolish it, but they fell through, and in 1774, at the beginning of the North American troubles, when it was proposed to punish the New Englanders by depriving them of the appeal of murder, Dunning, afterwards Lord Ashburton, described it as that great pillar of the Constitution. Burke concurred, and the motion was lost. Perhaps they have it yet in the States, at least Dr Cooper, in editing, in 1857, the statutes at large of South Carolina, treats Wager of Battle as an existing fact. In England the end came in dramatic fashion. In May 1817 Mary Ashford--a young woman of Langley in Warwickshire, was found drowned under suspicious circumstances. A certain Abram Thornton was suspected of the murder; he was tried and acquitted, but there was much evidence against him, and he had played so ill a part in a horrid though vulgar tragedy that the relatives of the dead girl cast about to carry the matter further. Now, an old act provided that no acquittal by jury should bar an appeal of murder, so William Ashford, Mary's brother, appealed Thornton in the Court of King's Bench. He was attached, and when called upon pleaded "Not guilty, and am ready to defend the same by my body." He then threw down his glove on the floor of the Court. It was a curious turn; for no doubt men thought that he would put himself upon the country, and stand a second trial by jury. There was much legal argument (set forth at great length in the reports of the time), for the prosecuting counsel tried hard to "oust his battle," but to no purpose, and in the end Thornton was set free. In 1819, two years after the drowning of Mary Ashford, the Appeal of Murder Act (59 Geo. III. c. 46) abolished the last remnant of Wager of Battle.

THE PRESS-GANG