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 assize, but also an alternative method of arriving at the same result—namely, a solemn appeal to the bar of almighty god. 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 god. 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 assaulted, 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 document 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 god 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 substituted 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 assign 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 circumstances by an assize 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 god, 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 god, this place, that there may be for us in it sanctity, chastity, virtue, and victory, and sanctimony, humility, goodness, gentleness, and plenitude of law, and obedience to god 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 mass 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 mass 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 mass, 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 god the father, the son, and the holy ghost, descend upon this iron for the discerning of the right judgment of god." meanwhile all were enjoined to observe complete silence "except that they earnestly pray to almighty god 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 pass 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 space 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 passus faciens et singulos eorum totius corporis pleno pressens pondere."
on such occasions the following collect was in use: "lord god 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 god, 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 mass 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 brass, 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 god, 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 superstition 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 pronounced over the accused, which was as follows:
"may omnipotent god, 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 circumstance 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 quantity—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 god, 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 pass 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 god, 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 god, 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 pass 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 god—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 button 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 button 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."
the fate of the accused depended on the miraculous turning of the psalter. if the direction was from left to right he was innocent; if from right to left, he was guilty. it would appear from the prayer, in which the priest invoked divine revelation, that he held the book, and therefore it is natural to assume that, consciously or unconsciously, his opinion must have influenced its movement. the prayer ran:
"omnipotent, everlasting god, who didst create all things from nothing, and didst form man from the clay of the earth, we pray thee, as suppliants by the intercession of mary the most holy mother of god ... that thou do make trial for us concerning this matter about which we are uncertain; so that if so be that this man is guiltless, that book which we hold in our hands shall [in revolving] follow the ordinary course of the sun; but that if he be guilty that book shall move backwards."
there were other forms of procedure, in some of which, as in the trial of the cross and the touching of the bier, the supposed criminal was confronted with his victim. ordeals were abolished in england in the year 1219; but the tradition did not die, and in the time of the commonwealth, hopkins, the notorious witchfinder, ridiculed in "hudibras," employed the cold-water ordeal for the conviction of witches. "the suspected person," says sir walter scott, "was wrapped in a sheet, having the great toes and thumbs tied together, and so dragged through a pond or river. if she sank, it was received in favour of the accused; but if the body floated (which must have occurred ten times for once, if it was placed with care on the surface of the water) the accused was condemned."
that the issue of the ordeal might be arranged appears to have been recognized even in the middle ages. thus, fifty englishmen, it is said, having been ordered by william rufus to be tried by the hot iron, every one of them escaped unhurt. thereupon the king announced that he would try them again by the judgment of his court and not abide by the so-called judgment of god, "which was made favourable or unfavourable at any man's pleasure." by the assize of northampton (1176) suspected persons, who had been acquitted by the water ordeal, were liable to banishment, though again acquitted by the "judgment of god."
trial by battle, though obviously based on the same principle, was technically distinguished from the ordeal or judgment. the former appears to have arisen in the countries of the north, where it was known as the holmgang, the combats taking place on islands. among the english this mode of settling differences was not much in favour either before or after the norman conquest; and the statutes of william i. contain provisions whereby the natives were permitted to substitute the more familiar ordeal for the trial by battle.
"it was also decreed there that if a frenchman summon an englishman for perjury or murder, theft, homicide, or 'ran'—as the english call evident rape, which cannot be denied—the englishman shall defend himself as he prefers, either through the ordeal of iron or through wager of battle. but if the englishman be infirm, he shall find another who will do it for him. if one of them shall be vanquished he shall pay a fine of forty shillings to the king. if an englishman summon a frenchman, and be unwilling to prove his charge by judgment or by wager of battle, i will, nevertheless, that the frenchman purge himself by an informal oath."
in subsequent reigns wager of battle was infinitely more common, and great encouragement was given to it by the martial race, whose ideas and habits were imposed on the subject population. the principles were established and the procedure regulated by the "assises de jérusalem" (1099), whose ordinances were received and recognized throughout europe as a code of law and honour. for a general statement of conditions and effects we cannot do better than turn to the pages of the almost impeccable gibbon.
"the trial by battle," he says, "was established in all criminal cases which affected the life, or limb, or honour, of any person; and in all civil transactions of or above the value of one mark of silver. it appears that in criminal cases the combat was the privilege of the accuser, who, except in the charge of treason, avenged his personal injury, or the death of those persons whom he had a right to represent; but wherever, from the nature of the charge, testimony could be obtained, it was necessary for him to produce witnesses of the fact. in civil causes the combat was not allowed as the means of establishing the claim of the demandant; but he was obliged to produce witnesses, who had, or assumed to have, knowledge of the fact. the combat was then the privilege of the defendant, because he charged the witness with an attempt by perjury to take away his right. he came therefore to be in the same position as the appellant in criminal cases. it was not, then, as a mode of proof that the combat was received, nor as making negative evidence (according to the supposition of montesquieu), but in every case the right to offer battle was founded on the right to pursue by arms the redress of an injury; and the judicial combat was fought on the same principle, and with the same spirit, as a private duel. champions were only allowed to women, and to men maimed or past the age of sixty. the consequence of a defeat was death to the person accused, or to the champion, or witness, as well as to the accuser himself; but in civil cases the demandant was punished with infamy and the loss of his suit, while his witness and champion suffered an ignominious death. in many cases it was the option of the judge to award or to refuse the combat; but two are specified in which it was the inevitable result of the challenge: if a faithful vassal gave the lie to his compeer, who unjustly claimed any portion of their lord's demesnes; or if an unsuccessful suitor presumed to impeach the judgment and veracity of the court. he might impeach them, but the terms were severe and perilous: on the same day he successively fought all the members of the tribunal, even those who had been absent; a single defeat was followed by death and infamy; and where none could hope for victory it is highly probable that none would adventure the trial."
second only in importance to the "assises de jérusalem" are the "grand coutumier de normandie" and beaumanoir's "coutumes de beauvoisis." as regards england, the forms of procedure are narrated by bracton and britton; and selden in his treatise "de duellis" cites a number of cases, both civil and criminal, in which resort was had to trial by battle.
when an appellor offered to do battle in person, it was his duty to say: "sir, a complains to you of b, who is there, that he has assassinated c; and if he deny it a is ready to prove it with his person against the person of b, and to slay him or make him confess in the space of an hour, and here is his pledge." if he offered to do battle by a champion, the formula was: "sir, a complains to you of b, that he has assassinated c; and if he deny it a is ready to prove it if he shall not bring his champion on the day; and to slay, etc., and see here his pledge." the defendant replied in the following terms: "sir, b denies and contradicts the assassination imputed to him by a, and is ready to defend with his person against a's person; and see here his pledge."
the combatants were to be armed according to their quality; and the arms and armour of knights, who should do battle in a case of homicide or assassination, are duly set forth. they had to fight on foot; their lances were to be of equal length, and their shields half-a-foot higher than their persons, and pierced with two openings through which they could see their adversary. the arms had to be shown to the court, and each champion was obliged to make oath on the gospels that he had upon him neither writing, charm, nor any other arms than those shown to the court. the combatants were then placed and fought. near at hand stood the warders of the field, so that they might catch the words "i repent" in the event of their being uttered. in that case they said to the other party, "you have done enough"; and he who had been vanquished was taken to the lord, by whose order he was trained to the gallows and hanged. similar treatment was paid to a combatant who had been slain, even if he had not said "i repent." the same procedure was observed where the champions were of inferior rank, save that their arms were not knightly. if the case were not one of homicide or assassination, knights fought on horseback and in armour, with the same consequences to the vanquished. his arms were forfeited; and, if the charge were treason, his heirs were deprived of their inheritance. combatants of lower than knightly rank fought on foot with shields and spears of equal length. if anyone not a knight struck a knight, he lost his right hand, "because of the honour and dignity which a knight has, and ought to have, over all other kinds of persons."
we may now refer to some typical examples. in the reign of henry iii. hamon le stare was appealed for robbery by walter de bloweberme; and the record is specially interesting on account of a contemporary drawing of the fight and subsequent execution of the vanquished.
in a ms. of merton college, oxford, occurs a note of a case in the time of edward i. r. de b. having demanded the advowson of a church against the prior of sens, the latter waged battle. on the appointed day his champion appeared, "and in the open field the duel was fought." the prior's champion was struck down, and upon this the prior's attorney came forward and surrendered the advowson. accordingly, judgment was given that r. should recover seisin, and that the prior should be in mercy. the same ms. contains a comment by the judge (saham) to the effect that if, after battle joined, at the second or third assault the tenant acknowledge the tenement to be the right of the demandant, and for that acknowledgment the demandant grant to the tenant that he shall hold of him for life, and that afterwards the tenement shall revert to him (the demandant), that acknowledgment is as stable as if a fine were levied in a writ of warranty of charter.
in hil., 29 edward iii., a writ of right was brought by the bishop of salisbury against the earl of salisbury for the castle of salisbury. battle was waged; but on the accoutrements of the champions being examined by the justices, a further day was assigned on the ground that the coat of the bishop's champion had been found to contain several rolls of prayers and charms. in this instance no battle took place, as a compromise was arranged, whereby the bishop was to pay the earl 1,500 marks, and judgment was given for the bishop on the earl making default. with regard to charms, it may be remarked that there is copied on the fly-leaf of a ms. volume of reports, temp. edward i. and ii., in a contemporary hand, a charm comprising a list of the names of god, to be recited only in special cases, one of which was "par doute de plai." we may add that ecclesiastics not unfrequently retained a champion not for one occasion, but permanently, and he was in receipt of regular pay. richard de swinfield, bishop of hereford, followed this course, giving a bond to thomas de bruges in consideration of the said thomas performing the duties of champion. similarly, by a deed dated london, april 28, 42 henry iii., one henry de fernbureg was engaged for the sum of 30 marks sterling to be always ready to fight as the abbot of glastonbury's champion in defence of the right which he had in the manors of cranmore and pucklechurch, against the bishop of bath and wells, the dean of wells and other their champions whatsoever.
naturally, however, the judicial combat was an institution in which the court and the aristocracy had a greater interest than the church. it has been suggested, with much probability, that the office of the king's champion originated from this custom. in any case, members of the royal house arranged, and even participated in, duels of this order; and one of the best accounts of the practice has been preserved in a long and elaborate epistle addressed to richard ii. by thomas duke of gloucester and constable of england. the following are extracts:
"the king shall find the field for to fight in. and the lists shall be lx paces of length and xl paces of breadth in good manner; and the earth be firm, stable, and hard, and even, made without great stones, and the earth be plat; and the lists strongly barred round about and a gate in the east and another in the west with good and strong barriers of vij foot of height or more.... the day of battle the king shall be in a sege or scaffold there where they shall be.... when the appellant cometh to his journey, he shall come to the gate of the lists in the east in such manner as he will fight with his arms and weapons assigned to him by the court, and there he shall abide till he be led in by the constable, so that when he is comen to the said gate, the constable and marshal shall go thither. and the constable shall ask him what man he is which is comen armed to the gate of the lists, and what name he hath, and for what cause he is comen. and the appellant shall answer, 'i am such a man, a. de k., the appellant, the which is comen to this journey, &c., for to do, &c.' and then the constable shall open the visor of his bassinet, so that he may plainly see his visage, and if it be the same man that is the appellant, then shall he make open the gates of the lists, and shall make him enter with the same arms, points, victuals and other lawful necessaries upon him, and also his counsel with him, and then he shall lead him afore the king, and then to his tent, where he shall abide till the defendant be comen. in the same manner it shall be done of the defendant save that he shall enter in at the west gate of the lists.
"the constable's clerk shall write and set in the register the coming and the hour of entering of the appellant, and how he entered the lists on foot; and also the harness of the appellant, and how he is armed, and with how many weapons he entered the lists, and what victuals and other lawful necessaries he bringeth with him. in the same manner shall be done to the defendant.... and the appellant and defendant shall be searched by the constable and marshal of their points of arms, otherwise called weapons, that they be vowable without any manner of deceit; and if they be other than reason asketh they shall be taken away, for reason, good faith, and law of arms will suffer no guile nor deceit in so great a deed. and it is to wit that the appellant and defendant may be armed upon their bodies as surely as they will."
previously it had been said: "and the constable shall make take heed that none other before or after the appellant or defendant bring more weapons nor victuals other than were assigned by the court." the "points" assigned by the court were the long sword, the short sword, and dagger—no other knife great or small or any other "instrument or engine of point." the combatants had each to swear on the mass-book that they were thus armed, and that they had no stone of virtue nor herb of virtue nor charm nor any other enchantment. also they were made to take each other by the hand to do all their true power and intent on each other, and make their opponent either yield or give up the ghost. all but two lieutenants of the constable and two knights were ordered to quit the lists.
the constable sat in front of the king as his "vicar general" and regulated the combat. "the constable schall say wt ye voice as foloweth, 'lessiez lez aler'; that is to say, 'lat them goo and reste awhile'; 'lessiez lez aler & faire leur devoir depdieu'; that is to say, 'lat them goo and doo ther devour i goddes name.' and this seyde eche man schal depte fro bothe pties soo that they may incountre & doo that them semeth best."
from that time forth neither appellant nor defendant might eat or drink without leave and licence of the king; and it was the constable's duty, in case the king commanded the parties to separate, rest, or abide, for whatever reason, to see that this took place in such a way that they should be in the same "estate and degree" in case the king should order the resumption of the combat. he was also to have good "hearkening and sight," if either spoke to other of yielding or otherwise, for to him and to none other belonged the witness and the record of the words from that time forth.
in this battle, supposed to be on account of treason, he that was convicted and discomfited was disarmed in the lists by command of the constable, and a corner of the lists broken "in reprove of him." through this he was drawn out by horse through the lists from the place where he was disarmed to the place of justice, where he was beheaded or hanged—"the which thing appertaineth to the marshal."
"and if it happen so that the king would take the quarrel in his hand and make them accorded without more fighting, then the constable taking the one party and the marshal the other shall lead them before the king, and he showing them his will, the said constable and marshal shall lead them to the one part of the lists with all their points and armour as they are found, and having when the king took the quarrel in his hand as is said. and so they shall be led out of the gate of the lists evenly, so that the one go not before the other by no way and nothing, for sen he hath taken the quarrel in his hand, it should be dishonest that either of the parties should have more disworship than the other. wherefore it hath been said by many ancient men that he that goeth first out of the lists hath the disworship and this as well in cause of treason as in other cause whatsoever it be."
it cannot be repeated too often or too clearly understood that the duel was not exclusively a chivalrous custom, confined to those of high station. like the ordeal, it was prescribed, as a mode of juridical determination, for burgesses and others, though, as we have shown, equality of rank was postulated in the combatants no less than equality of "points." by way of illustration we may turn to the annals of leicester, where wager of battle was enforced on the townsmen for the settlement of their disputes. we have seen that knights undertook to bring matters to a conclusion within the space of one hour. honest burgesses, less expert in the use of lethal weapons, and either less courageous or less callous in taking human life, appear to have shown extremely poor "sport" in their involuntary matches. at leicester a combat is recorded to have commenced at 6 a.m. and continued till 3 p.m., when it was terminated through one of the parties falling into a pit. the character of the affair and the behaviour of the champions occasioned a great scandal; and the townsmen, in order to prevent a repetition of the incident, engaged to pay the earl their lord three pence for each house, on condition that the "twenty-four jurors who were in leicester from ancient times should from that time forward discuss and decide all pleas they might have among themselves."
in london and other chartered towns parties to a quarrel could not be made to fight against their will. the rule was that wager of battle did not lie between two freemen without the consent of both; and a case is on record in which one citizen, having been charged with felony and robbery, offered to defend himself with his body. the appellor declined dereignment by battle, and so it was decided that the accused should be tried by the middle law, with eighteen compurgators.
the duel was employed for the determination not only of criminal, but of civil causes, and in such controversies the demandant, whatever his condition, might not engage in the combat himself, but was represented by a champion, who occupied the position of a witness. the claim would be made in some such form as the following:
"i demand against b. one hide of land in such a vill (naming it) as my right and inheritance, of which my father (or grandfather, as it might be) was seised in his demesne as of fee, in the time of henry i. (or, after the first coronation of the king, as it might be), and from which he received produce to the value of fifty shillings at least (as in corn, hay, and other produce); and this i am ready to prove by my freeman john, or if anything should happen to him, by him or him"—several might be named, though only one might wage battle—"who saw this."
or the form might conclude: "and this i am ready to prove by my freeman john, whom his father on his death-bed enjoined, by the faith a son owes his father, that if he ever heard of any plea being moved concerning this land, he would dereign (or prove) this, as what his father had seen or heard."
the tenant might then defend himself in person or by deputy at his option. the demandant's champion was not to be a person hired for reward, and if he was convicted of receiving money or vanquished in a duel on the point of right, not only did the demandant lose his suit, but the champion forfeited his legem terr?—that is, he could never act in a similar capacity again—and was fined sixty shillings nomine recreantis?—for cowardice. in the reign of henry ii. these arrangements were modified, and the tenant might put himself on the assise. "the assise," says glanville, "is 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. after this the calamity of a violent death, which sometimes happened to champions, might be avoided, as well as the perpetual infamy and disgrace attendant on the vanquished, when he had pronounced the infestum et inverecundum verbum." the horrible word was "creaunt" (or craven).
