« AnteriorContinuar »
gays, that it ought not to be called impious, since in its origin it was only a secular duel. The force of this argument we do not distinctly perceive, for the author himself seems to allow that, on this secular duel, there came at length to be engrafted the superstitious idea of an immediate appeal to the Deity; and, as this is precisely the nature of the judicial combat at the present moment, why may we not condemn the entire practice as we find it, without resorting to grounds of defence confessedly obsolete?
Before we quit this subject, may we be permitted to dwell one moment on what may perhaps appear to be a point of mere curiosity? Mr. Kendall treats with great disregard the common opinion, that the judicial combat was introduced into this country by the Normans.—According to him, it was a Saxou as well as a Norman mode of trial, though in less repute among our Saxon ancestors than among their Norman invaders. Though this opinion seems fairly tenable, yet the proofs in its support are not as full as might be wished. Sir William Dugdale, indeed, after Olaiis Wormius, states that the judicial combat prevailed among the Anglo-Saxons till abolished by the Danes.* Perhaps on such a point the authority of Olaiis Wormius may be deemed questionable; but it certainly seems that the practice, if it ever existed among the Saxons, had nearly disappeared before the period of the Conquest. Yet it is difficult to concur in the feelings with which some authors weep over the supersession of the Saxon trial by jury, and the establishment of the Norman trial by combat. The rude elements of our jury-trials certainly appear to have been derived from the Saxons; but it has required centuries to elaborate them into the form they have now taken. The Saxon trial by jury, if it may be so called, was an useful, but a very simple and imperfect contrivance; and, when we consider that the various ordeals by fire, by water, by hot iron, by the cross, and by the conned or morsel of execration, were at least as purely and properly Saxon modes of trial, as the use of a jury, we may the less lament that the subjects of the Harefoots and the Ironsides should have been compelled to adopt the more glorious ordeal of arms. 'These indisputable monuments of our ancient rudeness,' (says Burke, in his admirable Abridgment of English History, speaking of the Saxon laws,) 'are a very sufficient confutation of the panegyrical declamations, in which some persons would persuade us that the crude institutions of an unlettered people had attained an height, which the united efforts of necessity, learning, inquiry, and experience, can hardly reach to in many ages.'f
* Orig. Judie. t 7.
+ Book 2. ch. 7.
As the public attention has of late been much directed to the subject of trial by battle, it may not be irrelevant to give a short description of the form of such,a trial in an appeal of murder.*
If the appellant accepts the challenge of the defendant, and takes up his glove, the parties-must be put to their oaths. And first, the defendant, laying his right hand on the Gospels, and taking hold of the appellant's right hand with his left, will swear to this effect:—' Hear this, O man, whom I hold by the hand, who cailest thyself William by the name of baptism, that I who call myself Abraham by the name of baptism, did not feloniously murder thy sister, Mary by name, nor am any way guilty of the said felony; so help me God; [and then he shall kiss the book and say] and this I will defend against thee by my body as this Court shall award.'—Then the appellant, laying his right hand on the book, and taking the defendant's right with his left, will swear to this effect:—' Hear this, O man, whom T hold by the hand, who cailest thyself Abraham by the name of baptism, that thou art perjured, and therefore perjured because thou feloniously didst murder my sister, Mary by name; so help me God; [and then he shall kiss the book and say] and this I will prove against thee by my body, as this Court shall award.'—The court must then appoint a day and place for the combat; and the lists must be prepared, by inclosing a piece of ground, sixty feet square, the sides to be due north, south, east, a. id west. Places just without the lists are to be provided for the judges, and also for the bar. On the day fixed, the court is, at sun-rise,-}" to proceed to the spot from Westminster Hall, the judges being in their full robes; and, when they are seated, proclamation is made for the cambatants; who appear, with bare heads, arms, and legs, each led by a person carrying his baton of an ell long, tipped witli horn, and preceded by another, carrying his target made of double leather and square. Each, on entering the lists, makes congees to the several judges present; and, before they engage, they respectively take an oath against witchcraft and sorcery, to this effect:—' Hear this, ye Justices, that I [Abraham Thornton or William Ashford] have this day neither eat nor drunk ;^ nor have upon me bone, stone, or grass; nor have done any thing,
* 2 Hawk. P. C. 427. 3 Bl. Com. 340. 4 BI. Com. 347. And see the authorities referred to by each of these writers.
t In (he case in Dyer, however, the judges are said to have repaired to the spot1 circa hcram decimam'—Dyer, 301. Ten was also the hour in the Durham duel, 1638.
$ This oath, whether of Norman importation or not, would have exactly suited the Anglo Saxons; among whom, as Dr. Henry observes, 'an oath was not to be administered to any person, unless he was perfectly sober, and even fasting.' Hist, ubi supr. But why then does Shakspeare, in the judicial combat between the armourer and his nan, in Henry VI. describe the combatants as drinking to excess before they enter the lists ?—Or rather (for our author shows that this incident was founded on fact) whence came such an occurrence te take place ?—We must leave it to others to answer.
nor nor any other for me, w hereby the Jaw of Gorl may be depressed and the law of the devil exalted. So help me God.' And then, after proclamation of sileuce under pain of imprisonment for a year and a day, the combat is to begin, and to continue, unless either party yields or is vanquished, till the stars appear in the evening. The effect of defeat or surrender, on either side, has before been mentioned.
. The many absurdities of this ceremonial do not require to be particularly pointed out. Yet it seems perfectly conceivable that in rude and superstitious times, the force of conscience might often make the proceeding efficacious in the detection of crime. Some author remarks that probably the ordeal of the corsned (which was a morsel of bread taken by a person accused, with a solemn imprecation that it might choke him if guilty) seldom proved fatal. On the contrary, we are persuaded that, to the guilty, it frequently proved fatal. Fear alone greatly affects the organs of deglutition; much more would a guilty fear, immediately directed to the imminent danger of not performing the act, operate in the same manner. The judicial combat was probably of still superior efficacy. On the one hand, conscience would make a coward of the criminal; and, on the other, the accuser would seldom subject himself to the hazard of an equal battle, unless he were animated by revenge or enthusiasm to such a pitch of determination as seldom fails to verify its own auguries.
Agreeably to this idea, stories are handed down of the conviction of criminals, through the means of battle, by antagonists far inferior to them in strength or expertness. The most curious example probably on record is one cited from the ' Memoires sur les Duels,' in Montfaucon's ' Antiquites de la Monarchic Franchise,' vol. iii. p. 69. The author before us has given a translation of the story; but the reader may be amused by an extract from the original. We may observe that the same incident is related in St. Palaye's ' MSmoires sur l'ancienne Chevalerie,' and in Colombiner's 'Theatre d'Honneur et de Chevalerie,' and that an engraving of it, from an ancient representation in the Castle of Montargis, is given by Mr. Johnes in the supplementary volume to his translation of Monstrelet. The theatres also, both of Paris and London, have, within these' few years, exhibited pieces fouuded upon it.
The Chevalier Macaire, jealous of the favour shewn by the king to the Chevalier Aubri de Mondidicr, took an opportunity of murdering the latter in the Forest of Bondi, while accompanied only by his dog, an English blood-hound. The dog, however, remained by his master's grave several days; and, when compelled to quit it by hunger, went to the house of au intimate friend of
Aubri's; whom, by his cries and significant actions, he drew to the spot; where, on a search being made, the body was found. Afterwards, the dog on all occasions assaulted Macaire; till, at length, suspicion was excited, and the king ordered a judicial combat between Macaire and his dumb accuser.
'Macaire et le chien furent tous deux rais dans le camp comme deux champions, en presence du Roy et de toute la cour: le gentilhomme armé d'un gros et pesant baston, et le chien avec ses armes naturelles, ayant seulement un tonneau percé pour faire ses relancements. Aussitost que le chien fut hisché, il n'attendit point que son ennemi vint a lui, il sçavoit bien que c'etoit au demandeur d'attaquer: Mais le baston ilu gentilhomme etoil assez fort pour l'assommer d'un seul coup: ce qui l'obligea a. courir ça et la, a l'entour de luy pour en eviter la pesante cheute. Mais enfin, tournant, tantost d'un coté et tantost d'un autre, il prist si bien son temps, que finalement il se jetta d'un plein saut & la gorge de son ennemy, et s'y attacha sy bien quil le renversa parmi le champ, et le contraignit â crier Misericorde, et â supplier le Roy qu'on luy otast ceste bete, et qu'il diroit tout. Les juges s'estant approchez, il confessa devant tous qu'il avoit tué son compagnon, sans qu'il y eut personne qui l'eust put voir, hormis ce chien, duquel il se confessoit vaincu.'
It will be observed, iu favour of the theory of Mr. Kcudall, on the subject of appeals, that, in the above extract, the dog, who was the accusing party, or appellant, is considered also as the demandeur, or challenger. Indeed, the meaning of an appeal, as we have before observed, is a challenge; and, in the old chronicles, the term appellant is constancy used for one who challenges another to battle.
With respect to the form and manner of the judicial duel, we feel one difficulty, the solution of which we cannot command sufficient leisure to seek. It is well known that the jurisdiction, which our ancient Court of Chivalry possessed within the realm, was confined to matters concerning,war and military honour, and did not extend to pleas or appeals determinable by the common law. In the ' palmy time,' indeed, of feudal and baronial grandeur, that court was perpetually transgressing its limits; within which, however, it was driven back by repeated statutes.* It follows, that appeals of murder or other felony within the realm, in which knights or other persons of high degree were concerned either as appellants or as defendants, fell under the cognizance of the courts of common law. Cases, therefore, might frequently occur, in which such personages would be called to wage battel according to the forms already described; for knights, unless they were peers, were not exempt. Indeed Bracton, in describing the proceedings in a common-law trial by battle, expressly states some slight diffe
* a' K. I£. c. 5. 13 R. II. c. 2. 1 H. IV. c. 14.
rence rence of ceremonial, according as the party accused was of mean or noble rank.* This difference of ceremonial, however, does not appear to have extended to the habits or weapons of the combatants. All who fought, fought with the baton and target. On the other hand, it is notorious that, in battle on an appeal ot felony, the parties could not employ champions, but were obliged to fight in their own proper persons. Here, then, arises the difficulty to which we alluded. Is it imaginable that knights, or even esquires of gentle blood—persons habituated to rein the horse, to throw the lance, and to joust in complete armour—should condescend to play publicly a match at single-stick, with bare heads, bare legs, and arms bare up to the elbows? Alciat, in speaking of the judicial combat, is indignant that men of birth and rank should deign to wage battle even on foot:—'Omnium more receptum est' (he says) ' nobili et generoso viro magis convenire, ut eques et quidem loricatus congrediatur, quam mercenariorum peditum more, cum equestris militia nostris moribus dignior sit, et nobilium usu frequentior.'f Here, indeed, he is a little fastidious; for it was a very usual practice with knights of the highest rank, and the most chivalrous honour, not merely in mortal quarrels, but in the generous encounters for fame peculiar to those romantic times, to stipulate that they should meet on foot, armed with battle-ax, sword, and dagger. But what would Alciat have said, had he beheld the uobiles et generosi of England, drubbing each other, in the guise of half-clad rustics, with staves of an ell long?
Montesquieu, it is to be observed, states, that ' in France only villains fought with the buckler and baton, gentlemen armed at all points.' Whether this account be perfectly accurate, or not, such limited research as we have been able to make does not qualify us to say. Monstrelet, however, we perceive, describes a wager of battle, on a charge of murder, in the court of Duke William, Count of Hainault. The duke, he says, presided at a mortal combat (teint un champ mortel) in which Brunecte, a gentleman of Hainault, charged Soltier Bernaige, a gentleman of Flanders, with the murder of one of his near relatives. The parties fought with lances and swords, and Brunecte overcame his adversary, and
* ' Facto siquidem Sacramento in hac forma, stalim committatur defensor duobus militibus vel legalibos bominibus aliis, secundum quod appellatus nobUis fuerit persona vel ignobilis,' fee. Lib. iii. cap. 21. We take the liberty of here adding that Biackstone, when, in his account of atrial by battle on a writ of right, he describes the champions as Introduced by two knights, seems to us to have erred, in stating that to have happened always, which Dyer and Spelman, his authorities, state only to have happened in a specific instance. We should rather conceive that it was only when the litigant parties were persons of some distinction, that their champions were introduced by knights; and that, in other cases, they were ushered in by inferior freeholders, or, as Bracton in the passage just cited (ays, legates homines alii.
t Alciat, c. 39 and 40, apud Dugd. Orig. Jtidic. 77.