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Chapter V. Trial by Battle. Chapter XI. Quaint and Curious. Wills. Chapter IX. Chapter VIII. Ancient Punislunents. Chapter X. Trial by Ordeal. Marriage Laws and Customs. Chaptee II. Chapter III. Benefit of Clergy. . Peine Forte et Dure. Chapter IV. Wager of Law. Chapter I. "Witchcraft and Sorcery. Privilege of Sanctuary. Chapter VI. Chapter VII.TABLE OF CONTENTS. Recall of Judges.


has been gradual but certain. Industry. in the history of our country. There was perhaps never a time. lest we forget some of the valuable informa- tion of antiquity. therefore. to gressed. to study or analyze the history of our institutions. but the of the times is for continuous change. advisable that we should occasionally stop and consider the lessons of the past. in keepit is ing with the moving spirit of the age. with the ever meet the needs of the people. from the brutalities of a barbarous period. . when the general feeling of individual unrest has brought about such disrespect for our existing institutions. and the higher standards obtaining.INTRODUCTION. In this age of ours. The development changing ideas of of the great body of our law. being paraphrased. is simply. we should be satisfied with the pro- gress made and should be slow to return to the or remedies which a past civilization lest all our progress should prove but a dim phantom of the imagination. that "Motion means Money". when lar fantasy the politicians vie with each other in their attempts to cater to every passing popu- and the great mass of the citizenship is too much engrossed demand in the commercial life of the day. (1) customs found unavailing. In so far as we have actually procivilization. distinguished principally for the variety of the inventions and the fast and furious pace at which we move when the motto of the Captains of .

to the end that simplicity may be attained and the interminable delays. obviated. to refuse to profit puerile by this lesson.2 INTRODUCTION. shaped by designing politicians. But this revision should be cautiously made. But the prevalent idea that an increased volume of statute law will furnish a panacea for all existing evils. because consistent with the needs of the people. mon law in the remedial procedure of the present day. A profitable lesson can oftimes be gleaned study of from a tbe past and when an innovation demanded is it is one that experience has proven fallacious. for even "a burnt chUd" will avoid tbe fire. crystallized into The beneficent rules of conduct. law. by custom. should be jealously preserved against the unscientific fragmentary legislation. first attempt to simplify procedure in the United of the by the adoption years practice New York Code. rather than by . incidental to too many new trials and other objectionable methods. The States. in the evolution of civilization. too often reflecting the un- just and unequal demands of an aroused public sentiment. so as not to impair the efficiency of the great body of the law that the wisdom of the past has demonstrated to be thoroughly consistent with the individual and national sulting welfare. Undoubtedly much of the remedial and substantive law of our period needs revision. re- from the present practice. is radically wrong. was only sixty-five ago and a majority of the States The comwas greatly improved and simplified by this concerted action of the States and unquestionably there are many things that can yet be improved adopted such legislation since the Civil "War.

might be supplanted by the most unequal and unjust law. we can see that we have grave need for better laws on this most important of all subjects. congratulate ourselves that our Marriage Laws are better than those of can. but just benot a sufficient reason for discarding is Legislation may become as limitless as the imaginait tion of the legislator and unless properly advised. way of modifying or repealing law. born as a result of dis- eased and mismated marriages. Legislation.INTRODUCTION. through . some measure. the regulation of the relation. is the simplest All that is old cause it. in our country. frequently act without adequate information or legal training and the most salutary rule of conduct. then it is time to leave the issues of the present long enough to study the lessons of the past. and when we give but a cursory examination to the divorce statistics. through which the standards of citizenship are controled. of course. 3 the "cool examiner of the public pulse. is not necessarily good. in we the past centuries. which history has shown iu other countries to have been productive of the most deplorable consequences. in Europe and America." prompted by beneficent objects. yet when we consider the large class of "Predestined Lost" ones. it is old. in such hands. but legislators. In conning the "Marriage Laws and Customs" of past ages. which re- sulted in the wholesale slaughter of innocents. is When number legislation advised by any considerable of the leaders of any political party. would be inimical to the interests of the State or Nation. The Witch-Craze.

in the popular standards of the people. as we see it in ancient history. who was recalled. was found inimical to the interest of the Grovernment and since the English Judges were emancipated from the narrow groove of an unskilled public sentiment and were appointed for life. a blind faith by the Courts.4 INTRODUCTION.sustained. The old Anglo-Saxon practice of preferring the charge of "False Judgment" against the judge whose decision was challenged. were permit- ted to be established in utter disregard of the rules of evidence. and a vacillating. by the loss of a hand. was recalled. the majesty of the law has been revered in no other country on the face operation. whereby unprovable offenses. and some votes were cast against him. in the adminstration of the law. free per legal ideals. in Greece. when witches were convicted accord- ing to their ability to swim a torrent and surgeons were mutilated.500 years beChrist's time. fore Hammurabi tried this system 2. for an unsuccessful was also tried in ancient Athens and because of some unpopular decision. another of the present popular fantasies to be avoided. It ' ' ' ' . brought totle 's evidence is to the effect that this law about the most deplorable consequences. The is Judicial Eecall. if this charge was . illustrates the necessity of an from the dominating influence of the frenzy of the public and a constant adherence to the rules of evidence and the proabsolutely independent judiciary. the "most just Judge" of that city. where it was in vogue. dependent judiciary helped for centuries. Aristides. because the voters were Arissimply tired of hearing hiin called The Just. Persia and other antique nations. to perpetrate the most intolerable out- rages against civilization.

in the prerogative of the judgment-seat. to judgment. as when the patriarch Moses. it is with right and wrong. ter performs its highest ' in withstanding all as- Exodus."^ The work of the judges is in private places they have no favors to bestow. "Thou wrest shalt not follow a multitude to do evil. own judicial undermined the judicial instituit would also undermine our system and ought to be avoided. when the public clamor is the loudest for the sac- rifice of individual right. 2. should be considered. . the judges of the peoples courts. have nothing to do with popular standards . XXIII. that. if this practice tions of other countries. for. to adopt such a it will be seen that law would mean to return to the "Leges Barbarorum" of the past. accord- ing to the just and equal standards of the law that they have to deal and it is as true to-day.. by the ill-formed. as it has been in England. therefore. .INTRODUCTION. then the true judicial characoffice. in utter disregard of the lessons of the past and the wisdom of our fathers. 5 of the earth. for the destruction of the independence of the Judiciary. neither shalt thou speak in a cause to decline after many. no rewards of office to distribute. admonished the judges of ancient Israel. In the discharge of their impartial functions. This is testi- mony worth considering. It is frequently the business of the charlatan to miscon- strue and misinterpret their ablest judgments and as the courts are the final repositories of the peoples rights. judging the future by the past. The de- mand. along with this object lesson furnished by ancient history and by penetrating into the records of the past centuries.

W. in the course of served : his opinion. in the future. in 959. The stability of the institutions of this government depends upon adherence to the law. '^ ' This course alone is consistent with the attainment of the just idea of government. ob- "I have made it the rule of my judicial life. by the ill-informed. in this regard. to decide questions as I understand them. after as careful an investigation as my capacity affords. ary. my voice and my vote shall. 145 S. and not on the fluctuating strenuousity of eruptive ebullitions of popular sentiment. I do and shall continue to regard the law as superior to the ebullition of outraged feeling. as it is written. while invested with the authority pertaining to the office I hold. 1023. when communities are shocked by crime. because the ideals of the unskilled are not always consistent with the stand- ards of scientific jurisprudence.b saults INTRODUCTION. just as it did when popular sentiment judgment con- trolled the incumbents of the 'Judge Davidson. Rep. as in the past. When cases arising under such circumstances. not bending it to pablic sentiment. and shall continue to do so. without reference to what public opinion may be. and peculiarly of this department. dependent A subservient judici- upon the vacillating ebullitions of an unstable public sentiment would bring about a subversion of the important functions of this department of government. in ancient Ex parte Martinez. of Texas. upon the ramparts of the Temple of Justice. have reached this court. who. . seat. be given for the upholding of the law. With the wide-spread demand for the "judicial recall" we find the true modern standard. reflected in the recent strong language of an upright Texas Judge. by the judicial department.

after issue waged. or to withstand. the abolition of the "Ordeal. requiring most superhuman strength or fortitude." as institutions of a primitive people. in a criminal charge." the courts were un- . Trial by Ordeal. resolved the conclusion upon a given issue. struggling for right." and "Wager of Law." in the thirteenth century. of criminal cases. from wMcli ' ' important lessons can be drawn." "Trial by Battle." the dreadful "Peine forte et dure. in a certain al- character to accomplish certain ordeals. into a simple question of the elasticity of the consciences of the principal and his friends. in Greece and in the England of old Anglo- Saxon days. when tribunals had been for the trial of questions of right and wrong. Before the evolution of the race had attained to the ideals. are but expressions of a misguided and abortive effort to attain correct judicial ideals. refused On to submit to a "Trial by Battle. "Trial by Ordeal. such issues were determined by the ability of the accused. with such ideals. by a sufficiently strong and an adequate number of oaths.INTEODtrCTION. when the accused. or the appellee. to assist him in swearing away the given crime or debt. who were always able to win their cause. 7 Babylon. the popularity of the principal or his ability to secure oathhelpers. in civil suits. established. according to the actual facts in each concrete case. might alone controled the right and by the "Wager of Law. the strength of the opposite party to the issue waged. " Trial by Battle" and ' ' ' ' Wager of Law. by false and inaccurate standards. by individual combat." are all instructive procedures of a past civilization. Of course." the other alternative used in the quest for right.

we are. of having their clients stand viction mute and refuse to plead. availed themselves of this subterfuge. until the past century. has risen to the standard where to reject such all of its it is inhuman and barbarous practices. judicial severity in the case of prisoners standing This.8 INTRODUCTION. which resulted in the crowding of the and prisons. indeed. The same practice was followed in the witch persecutions in this country. as it were. when their conof felony would be certain to result and the jails courts found themselves helpless to avoid a condition. without some amendment of the procedure and adroit criminal lawyers. the cruelties resulting from the harsh administration of the criminal laws of mediaeval times. able to force a plea. illustrate the attempt of the Church to mollify. with imperfections. The "Benefit of Clergy" and "Privilege of Sanctuary. in the seventeenth century and obstinacy. in all such cases. in England. by the secular courts and had it not been for these beneficent institutions which were frequently utilized to protect criminals of the worst sort there would ' ' — — have been no alleviation for the sufferings of the ac- . in England. to be conable gratulated that our present procedure. afraid to submit to the "Trial by Battle" and refusing to plead to the indictments against them. came to be to apply a heavy weight upon the chest of the accused and to literally "press him to death. for some years. when we consider that these abominable customs ob- tained. tinued. when arraigned upon a criminal charge. in time." if he persisted in his For centuries." for standing mute. brought about the greatest mute and finally the practice. this custom conand thousands were "pressed to death. filed with prisoners.

as we find Magna Charta. and the various ' constitutions of our own country. in such manner as to make antiquity to live again before modern eyes to resurrect. When we read of the "Ancient Punishments" of the past centuries. unable to protect the innocent from the power of the mighty. Those so fortunate as to avoid the punishments of the filed past centuries. 9 and the large number of innocents who embraced the plea of Clergy. must have felt a sort of consolation in being able to run the gauntlet of such barbarities and delusions. almost akin to a divine gift. adopted such fixed principles of constitutional law. have depicted scenes upon the canvas. cTised.' INTRODUCTION. the men and women of the past centuries and so that they seem to infuse new life into their bodies to again assume real form and being. by herculean reflected in efforts against those in authority. No such gift can Some of the great painters of — — . such as the late Sir Lawrence Alma-Tadema. we can but feel a satisfaction that the struggle of our English forefathers of mediaeval times. as it were. when death lurked in every charge against the poor and oppressed. have paid the penalty for living in a dark and benighted age. would. mixed with a strain of pathos running through the "Quaint and Curious Wills" and testaments of an- and this is tiquity. and ito die a natural death. preventing "cruel and unusual punishment. modern times. along with the guilty. no doubt why we find such evidence of jocularity. when accused of wrong-doing. or sought the sacred precincts of the protected Sanctuary. This comes from a close study of the subjects and a genius.

10 INTRODUCTION. may. who seeks to re- produce pen pictures of the antique proceedings of the past. by the reader. None of the States or the many legal antiquities of Eoman Empire. will appear. in tracing the old laws different paragraphs pertaining to the various subjects introduced. aid the lawyer. or did in this instance. but a general outline of each topic. Not nearly all the learning or the law upon any one of the subjects presented. as a basis for the presentation of the following pages. who is kind enough to peruse the work. that some of the interest and customs of by previous ages. life The sources work and struction it is of the information used in the different essays appear in notes and references throughout the to be hoped. . with fre- quent illustrations from concrete cases. but only a few of the antique English laws and customs that have partic- These several subjects were all given cursory examinations in the preparation of the data for "Law in Shakespeare" and the superficial investigation in connection with that work. be shared. in a measure. old proceedings prompted a somewhat painstaking study of many antique volumes. led to the more minute treatment herein. will be found set forth in the the author. A keen interest in these but the duties of a quite busy professional have prevented the exhaustive investigation that would otherwise have been given the subjects treated. which could the Grrecian be so profit- ably discussed. but study of the subject is of course essential to give any tolerable idea of the obsolete laws and customs of other days. if the usual modicum of infelt may be lacking. have been attempted. This is ularly attracted the attention of the author.

expressed by William Ejiox. as presented in these "Legal Antiquities. we should be comforted with the reflection that such institutions are but mile-stones of the centuries." the truth of the words of Longfellow. in the pathetic drama of the evolution of the race and we ought to erect monuments to their memory. but of the when we read of these customs men and women of antiquity. 11 the apology for the undertaking and the engrossment of professional duties is the excuse for the limited scope of the treatment accorded each subject. troop of shadows.INTRODUCTION. these old issues and customs are dead and buried out of sight and we would not be mad enough to revive them. They played no unimportant part. and occassionally wander back to scatter flowers upon the monumental shaft." for if we had lived and moved and had our being in the dark days when these customs obtained. without deserting the live issues and duties at present confronting us. that "We are the same our fathers have been. as it were. With the era now existing. "When we contemplate the lessons of the past. marking the rapid progress of the race. moving with the sun. generations pass as they have passed." we can but realize the plain truth. that * And A . however. we can but realize "* * the -world Is very old. if we could. we would have considered them in the same light that our fore-fathers viewed them and this should make us charitable toward these frailties and mistakes of the past.

D. like other animals. as the lawful union of a man and a woman. us- ing their women common . the oldest institution of man and the source of our most antique laws and customs. it is in one form or an- other. in the beginning. "Early History of Mankind. in the Institutes of Justinian. written 527-529." p. 10. "Tylor. but rarely knew fathers were and that this who their custom continued among established the mar- men." McLennan's "Primitive Marriage. few. (12) . 'Ringrose "Marriage Laws of the World.CHAPTEE The term marriage was I." p. including an inseparable association of their lives." McLennan's * "Primitive Marriage. defined. of the World.* While the ancient "Heathen Chinese" were thus ' Institutiones Justinlanus. if any. improve upon that given in the Institutes of this old philosopher-lawyer- Emperor of the Eomans. Makeiage Laws and Customs. A. human commu- beings.^ The Chinese inform us that nity laws. until the Emperor Fou-hi riage custom." Rlngrose. that the offspring of such unions knew their mothers. when once established.^ As the basis of the marriage contract is the necessity of society for some rule for the appropriation of the opposite sexes to one another and the protection of that relation. without morality or wandered through the plains and in forests.^ Written almost fourteen centuries ago. "Marriage Laws 7. of the many definitions of marriage.

(Vol. p. so if this record is true. the Circassians and the people generally of the Caucasus. p.) "The form of capture is observed in the marriages of the Kalmucks. p. 9. the custom of capture of women for wives has prevailed from the earliest times of the known history of those places. I. 41. He claims that "the capture of women prevailed among the aborigines of the Dekkan and in Afghanistan. E. to the four classes of India (vol." claims that the old Hebrew expression of "taking a wife. Germania. 191." etc. I. in Tartary." (Vol. Woods in his book. the "marriage by capture" and "rape marriages" were still recognized by law. hut common to other primitive peoples. I. pp. 42. in the sixteenth and seventeenth centuries (vol. p. Johns' "Bahylonian and Assyrian Laws." Blackwood's Magazine. p." arose from the custom of capture. 50). not common to the Israelites. I. that the seizure of wives hy force obtained in Ireland (vol.) He claims that marriage by capture obtained in Poland. July-Dec.. since this custom is found to obtain in these countries was the order countries.MARRIAGE LAWS AND CUSTOMS. of the Ortous. capture was the only method used by young men for securing their brides and the supply of consorts depended upon the strength of the male. I." (Vol. were established in G-ermany. I. as providing one of the forms of marriage by capture. the "Institutes" of Menu. the Nogay Tartars. 220). as authority for the custom of the Spartans to carry off their brides by capture. 210. p. rather than the existence of "the tender passion.^ Some historians claim that." (Vol.) Refers to the Rape of the Sabines (vol. I. 18. long before the "bride-sale" or "sale marriages. so late as recent historical dates. p. II. Pollock and Maltland's History English Law." so generally obtaining in ancient Assyria and Babylon. 1887. p. "The Wedding Day in All Ages and Countries. ' We are told that this rude custom obtains today in "Far Cathay. c. in the early days of heathenry. II. the Mongols. 40.) He quotes Plutarch. vol. (Vol. I. 671."® 'Tacitus. 364. 52). it is not unbelievable that capture of the early barbarous days in our own and other . J. 13 holding their women in common. p. there is evidence that among the old Teutons and Hindus. 124). 137) He maintains that "In New Zealand and the Fejee and other Islands of the Pacific. known.

22. we have the evidence of the first book of Moses. But the pictures of violence obtaining in tliese an- cient days of heathenry are so obscured by the mists for the con- of the past and such a large field struction of is left ingenious theories."^° From Christian testimony. in saying: marriage. McLennan. which the Lord had taken from Adam. upon the antiquity of this institution.® The Biblical theory of the custom. cit. cit. his father went to Jacob and his sons and communed with them. I. for when Shechem. and multiply and replenish the earth. 147. the son of Hamor. "The soul of my son Shechem longeth for your daughter. after defiling Dinah. longed for her. •Genesis. II. in Genesis: "Be fruitful. surrounded by ro- mances of connubial bliss. "Genesis. " op. Crawley's "Mystic Rose. . and 'Fison and Howitt. we find that from the rib. Prof. to attribute a religious meaning to the ordinary intercourse with woman. dates from the command to our first parents. And make ye marriages with us." some of the most eminent authorities are inclined to deny that such a custom ever existed at all. I pray you give her him to wife. Tylor. 28.'' Some writers maintain that the rights of the individ- ual were never more clearly defined in marriage. and that this is in accord with the common tendency of the male. 108. Curr. resulting from this early cus- tom of primitive society. he made a woman "and he brought her unto the man. 259. 6." pp.14 MAEEIAGE LAWS AND CUSTOMS. op. the daughter of Leah. I."® In the beginning. that notwithstanding the gen- eral popularity of the theory of "marriage by capture. than by primitive man.

from the different nationalities of the world. or the marriage of one woman to two or more husbands at the same time. now ar. or the marriage of one man to one gamy. made wonderful strides while practicing polygamy. much as the parents of the twentieth century youth riage."" "unto us and take our daughters So according to the Bible story. but and is to-day. and polyandry. 9. the king had acquired a round thousand women. we find that the institution of marriage obtained seventeen centuries before Christ and these old patriarchs were plighting the troth of their son and daughter and talking of dowries and marriage portions. for the the institution best suited to the progress of society and the proper evolution of the human most progressive nations of the world's history have embraced rule of social conduct. polyman to several women at monogamy has been race. "Rlngrose.range such matters. 10. p. countries. 15 give your daughters unto you. however. seven hundred princesses as wives and three hundred concubines.MABKIAGE LAWS AND CUSTOMS. "Marriage and Divorce Laws." "First Book of Kings. which grew apace with the progress of the race. woman at a time. monogamy as a The old Hebrews. according to the Bible story. monogamy. under Eo- "XXXIV. or the marriage of one the same time. 8. an institution established by Lamech.^^ Since the days of our first parents. . until in Solomon's time. in the sixth generation after Adam. There has always been three principal forms of mar- from the earliest historical times.^* Polygamy was in also practiced in Persia Turkey and other Oriental Genesis.

vv. "Marriage and Divorce." vol. 797.i5 The marriage customs of the Eomans is furnish the basis for the marriage laws of the civilized world. of the World. Essays in Anglo-American Legal History. in It has never reappeared in any countries subject to either the Eoman or Teutonic laws. c." p. 2. They occur between men Ringrose. sacred rights of the individuals. Androm. effecting an equal distribution in both the secular and even the Hebrew and Teutonic influence pared to that exerted upon this institution. The general conception of the marriage relation. was an exalted one." vol. Monogamy was as Countries. it was proEmperors the Mormons." Wood's "Wedding Day in All Ages. in the endeavor to limit the population to the re. 33. Wood's "Wedding Day in All Ages and Morganatic. were (1) Confctrreatio. hibited by Diocletian and other preceding in the single instance of and except Utah. Romans as far back our records reach. "Bryce. but is still practiced in parts of India. ISO.^* its Polyandry no doubt had sources of the district it is origin in unfertile re- gions. and small comby the Eoman law. are peculiar to Germany. as it was regarded as an equal partnership in the whole of life. "Marriage and Divorce Laws 8. rule it man slowly died out in the east. Essays in Anglo-American Legal History. or "left-handed" marriages. almost an obsolete custom. by the Eomans. I. "Marriage and Divorce. by the early Eoman law. xxiii. Tacitus. Germanla. 784. Modestinus in Dig. Thibet and Cey- lon. p. 173. practiced by the Greeks and p. "Ringrose "Marriage and Divorce Laws. 785. 11. .16 MAEEIAGE LAWS AND CUSTOMS. I." III. xvi. consisting of a religious " Bryce. Euripides. 1. II. of superior and women of inferior rank and are prohibited by the Royal Marriage Law of England.^® The three forms of marriage." III.

The Twelve Tables fixed the period of three nights." p. 17 ceremony. xii." III. "Tacitus. early day were almost universal. Essays in Anglo-American Legal History. the property rights of the wife by the marriage. which would affected remained unMarriages with Hand in an place them. and the distribution of a broken wheaten cake. by prescription. arising from the cohabitation of the wife with the husband. religious without absenting herself for three consecutive nights. or the right of a wife. " Ante idem.^^ "RIngrose. Ann. the confarreatio had practically become obsolete and was regarded as an old world curiosity. in all patrician families. and (3) Usus. for the women did not prefer the free marriage. until the end of the Republic. for one year. 8. a conveyance or formal sale of the woman.. ending in the sacrifice of an ox. and while first cousins might lawfully marry. "Marriage and Dlvoroe. p. unless she had lived with him for a year. in law. (III. she did not become his wife. without an absence for over three consecutive nights.^ ^ ncarriage under pain of death by burning. no doubt more uncertain. Essays in Anglo-American Legal History. although formerly obtaining generally. " III. by a priest. Essays in Anglo-American Legal History. . 788. ^III. 6. to fix a previous custom.^'^ If the woman lived with the man without either the ceremony or the formal sale. 805. Bryce. "Marriage and Divorce Laws. outside the legal family of the hus- Marriages within the Levitical degrees were prohibited by the early Roman Emperors. Before the end of the Republic. to the man.^" the Emperor Theodosius prohibited their band. 788.^* This latter form was called "passing into the hand" of her husband and until this Hand power had been cre- ated.MARRIAGE LAWS AND CUSTOMS. (2) Coemptio in manum. however.

52. " Novella. Ixxxix. however. Novella. 789. pp. used at the marriage confarreatio. A. 7. '' 8. from the earliest times. p.) == Tacitus. Nov. ia the early days of the Empire passed laws regulating Concuhinatus. =^ni. Normandy and Essays in Anglo-American Legal History. 887 it was prohibited by law. Ixxxix. . she was not raised to the level of the husband and while her children were entitled to support from the father.^^ Under the Eoman law. is described in Wood's "Wedding Day in All Ages and Countries. 807. Ixxxix. could be legitimated by the subsequent marriage of their parents. 5. xii. until the period of the Emperor Claudius.. 6. used at this old religious ceremony.^^ the relation known as The woman was left in the same relation as the law found her." vol. vol. 4. Nov. 224. xii. Leo. D. G-ermany. 61. p.18 MABKIAGE LAWS AND CUSTOMS. 27. Prance. v.) The religious ceremony." where is it is shown that the custom of the "bride-cake" directly traceable to the cake of wheat or barley. II. ^•Code Justinian. down to the per- when The Justinian Code recognized the legality of the relation and fixed the legal and property status of the concubine and her progeny and iod of the philosopher Emperor. children born in concubinage. they were not legitimate. Agrippina. xii. 8. Essays in Anglo-American Legal History. 4.^^ Concubinage was a "permitted connection." under the Eoman law. Ann. 1. Uncles and nieces and aunts and nephews were prohibited from marrying. 60.^^ various Christian Emperors.^® and this early Eoman law was the foundation for the custom obtaining in England. ("Wedding Day in All Ages and Countries. who desired to marry his brother 's daughter. and so passed a decree of the Senate allowing such a marriage. but could inherit from the mother. 5. 51.

See Pollock and Maitland's History English Law. was the general custom. when the children of John of Gaunt and Catherine Swinford were legitimated by Parliament. p. by the subsequent marriage of their parents. of legitimat- ing the children born out of lawful wedlock. D. France and Normandy." to distinguish them from children regularly born in lawful wedlock." Wood says: "According to the Scotch law. But for illustrations of the application of the custom in the countries above named. 24. 397. The law did not give the marriage any retroactive effect. 712. in the countries named.^® and in Normandy. to the effect of legitimating the children. as "mantle children. to place the children under a cloak. 398. 538. ^'iSelden. this custom was refused judicial recognition in the reign of Henry II. " Beaumanoir. a mantle over the children born prior to wedlock. 18. the law was willing to also spread its protecting "mantle" over them and thus they became "mantle children. c. in England. ad. At the wedding of it a couple haviag children prior to their marriage." by force of both the law and this Although followed in Germany." and "the children were covered with the mantle. p. III. Duke Richard espoused Gunnora. II Pollock and Maitland's History Englisli Law.^'' According to Selden. Essays in Anglo-American Legal History. this ceremony was observed. Pollock and Maitland's History English Law. see Schroder's "Mantelold custom of adoption. and Henry III. 808x. and in spreading the cloak over the children." in his work "Wedding Day in All Ages. . Sec. prior to the 19 Norman Conquest. Discussing the subject of "mantle-children. 398. but the custom was recognized by the law. p. Kinder" of Germany. '^' ' ="II. R. or mantle. p. Scotland. which was also spread over the parents. "in Christian fashion. p. G. by reason of this custom of throwing. Diss. and the children of such a union were thereafter known in the law.MAERIAGE LAWS AND CUSTOMS. in the sense that the act of adopting the custom was equivalent to a legal adoption of the children. Fletam.

the doctrine that marriage was a sacrament was evolved from the Fifth Chapter of the Epistle of St.." p. Greeks.^* the marriage of the father and mother legitimatizes all childrea previously born. In very early days children born before wedlock used to perform a part in the marriage ceremony. Neither the ancient Hebrews. Mohammedans or Eomans. we find that he made laws to prevent the sale of a woman to a man whom she disliked.) string tied over "° them during her marriage. "Marriage and Divorce Laws. but performed no religious ceremony. regarded marriage as a religious ordinance. II. Paul." p.20 MAEEIAGE LAWS AND CUSTOMS. to the Ephesians and it was not until the Council of Trent. 9. "Marriage 74. 8. "Cnut. by being placed under the veil or mantle of the bride or the pallium of the altar. . are legitimate. We find from the second chapter of the Gospel of St. by the interchange of consent. however old they may he.^^ The early Christian church. 75. in England.^" In Cnut's time. the church approved these sale marriages and condoned the old betrothals of the Anglo-Saxons. attended a marriage in Cana of Galilee. however. John that Jesus. Pollock and Maitland's History English Law. they received the nuptial benediction. but the relation could be established. in which position. himself. did not treat marriage as a sacrament. An old saying is that 'all children under the mother's girdle or apron-string* at the time of the marriage. in the year 1563 that the Roman Catholic Church required the celebration of to be marriage accompanied by a religious ceremony." (Vol. II. 365. "Ante idem. and had the pp.^^ but even at this stage of English society. And instances have occurred in more modem times. 74. Ringirose. and Divorce Laws. "Ringrose. where premature offspring have' been put under their mother's apron. according to the laws and customs of all these ancient people. and preserved the forms of ceremonies which still constitute the curious cabinet of antiquities of the English church.

without the formality of a religious ceremony at all. at the Council of Lateran. »'II. could be contracted without any formality. where the legitimacy of a litigant had been raised. if any could be urged to the union and from this time on. as early as the seventh century. 158. Pope Innocent III.*^ In the memorable law suit of Eichard de Anesty. a marriage solemnly celebrated by the church. vol. marriage was held to appertain to the spiritual forum. a marriage. "Ante idem." calling upon all men to declare any just cause of impediment. In Rome. in 1143. vii. 366. Letters of John of Salisbury. by the consent of the parties alone. and from which a child had been born. caused it to raise its voice upon questions con- cerning marriage and divorce. 15. 13. Pollock and Maltland's History Eaglish Law. "Ante idem. Essays in AngloAmerican Legal History. 449. 124. "'Glanville. Select Civil Pleas. i. Under the Twelve Tables.MARRIAGE LAWS AlfD CUSTOMS. I. 109. was declared to be void in favor of a prior marriage. 786. . Bryce. 92. p. pi.^® Soon after this decision. enacted B." III. 14. the concern of the church about all sins pertaining to the flesh. Glanville acknowledged the jurisdiction of the ecclesiastical courts upon all issues touching the validity of marriage and because of the acknowledged inability of the king's court to solve the issue. the canon law was subsequently looked to in all such cases. "Marriage and Divorce.^* By the middle of the twelfth century according to the laws of England. extended to the whole western portion of Christendom the custom of publishing "banns of marriage.^'^ In 1215. p. constituted by a mere exchange of consenting words. 21 In England. C.

4. in terms of a present. c. "11. to give effect to the bare consent. p. Pollock and Maltland's History English Law. "Complliato Prima. he had lived with and had a son by one Joan. and followed by physical union. lib.*'' In 1254 the interesting case of William de Cardunville. and she was adjudged "11.22 MAEEIAGE LAWS AND CUSTOMS. to determine which of two conflicting claimants was his rightful heir. in present form. of a priest was before the catholic church. as interpreted from cil the middle of the twelfth century until the Coun- of Trent. existing contract. marriages with banns. 372. Alexander III. upon an inquisitio post-mortem. came before the court.*^ It seems a strong case. He had solemnly espoused one Alice. and this son was also named Eichard and was twenty-four years old at the death of his father. and no religious ceremony or the presence essential to constitute a valid marriage. but still the unblessed. "unhallowed and unconsummated" as against a solemn formal contract. youngest being a son. tit. 371. Long before his espousel of Alice. formless marriage was a marriage. decreed that a marriage by mere consent. 6. a tenant in chief of the Crown. . had certain legal advantages over a marriage without banns. the lived for sixteen years and had several old. without the religious ceremony.** During the reign of Henry II. four years named Richard. would be given precedence over a later marriage by another man with the same woman. with whom he had children. followed by a consummated union. duly solemnized in religious form. Pollock and Maltland's History English Law. before the law. yet this decree was consistent with the ecclesiastical law. Joan established a common-law marriage.

rendered setts. as Chief Justice Supreme Court of New York. West Virginia and Kentucky. for *" Ante idem. except where the local statutes provide otherwise. in which he denied that according to the common law a valid marriage could be made.** Clearly.: MARRIAGE LAWS AND CUSTOMS. 521. 23 the rightful wife of the deceased and her son. then on the bench of the Supreme Court of Massachusetts. by the mutual agreement of the parties of the * ' alone. p. and may be said to obtain. vol. or unwritten law. other than those mentioned above.*^ From an early date. for 1888. 1. 61. in the states. 521. 1888. Chief Justice Parsons. made per verba de praesenti. the interpretation of the Eng- lish Courts. of the opposite sex. was awarded the livery. in 1809."*^ A This latter exposition of the common law all of England has been generally followed in the United States. amounts to an actual marriage and is as valid as if made in facie ecclesiae. contract of marriage. generally. a decision. marriage may be conby the mutual present consent of two compe- tent persons. vol. was followed in the United States.*^ Chancellor Kent. the first begotten Eichard. In the year 1810. « Atlantic Monthly. recog" Calendarium Genealogicum. without other formality than the performed inclination of the individuals concerned and so the common. 527. however. pp. with the exception of Massachu- Maryland. 61. . 57. " Atlantic Monthly. held that No formal solemnization of marriage was requisite. as to the validity of a marriage based upon a present mutual consent of the parties. stituted by the law of nature.

534. in lieu of istrar. erroneously decided that such a marriage was void. the interesting and famous case of The Queen vs. enacted that wedding hanns should be regularly published three successive Sundays in the church of the parish where the parties were for the time residing. without the publication of banns. .." Legal History. nized the legality of such a contract. unless by special dispensation by the Archbishop of Canterbury. 815.. when the Rector of St. according to the English law. Wood's "Wedding Day in All Ages. This statute was repealed in 1836 when a purely civil marriage before only a Eegof England. p." vol." during the year 1616. Millis. This statute was passed to prevent the evils of the "Fleet marriages. a statute was passed.. solicited passers-by for patronage and celebrated marriage ceremonies in ale-houses and garrets.*^ requiring all marriages to be celebrated by a clergyman and in a church. II. III. The law of nature was adopted this relation. The Irish Court of II.24 MAREIAGE LAWS AND CUSTOMS. in 1753. " 10 Clark and Finley. "Marriage and Divorce. in Considerable uncertainty and some confusion resulted in England as to the essentials of a valid mar- riage and the acts necessary to constitute a marriage.*'' wherein the House of Lords. was permitted by the law the ecclesiastical ceremony. in the year 1843. page 235. but during the reign of George II. Kings Bench was equally di- "26 George 33.*® Touching the issue as to the validity of is a marriage not solemnized by religious ceremony. Essays in Anglo-American The statute of tlie 26' year of George II. prior to the eighteenth century. as the surest guide to the law of man. " Bryce. or the existence of marriage licenses. c. James was suspended and clerical men living within the Rules of the Fleet.

*® This rule. f. the effect of the division was to hold the marriage void. and thus a mere accident gave the decision in favor of the erroneous view that from the earliest time in English law. Cottenham and Abinger were for holding the marriage void.*® • But while both the temporal and spiritual courts recognized the validity of marriages based alone upon mutual consent. (Vol. 815. . pi. Essays in Anglo-American Legal History. however. 891. from the decisions and history of the law. until the Council of Trent. this was not the case. Bryce. followed by a physical union. Denman and Campbell. when.. 92. in his "Marriage and Divorce. the bride can only be endowed at the door of the church. Lords Lyndhurst. III. 25 vided upon the issue and in the House of Lords. for while the marriage may be contracted elsewhere. p. while Lords Brougham. Note Book. says that this "seems to have been an erroneous" decision. 305. II." III. either in England or according to the Eoman law.MARRIAGE LAWS AND CUSTOMS. 304.. say that may have pleased the Lords.) (Vo). but the op- posite holding will he followed by historians of the middles ages. after the decision of the English judges had been given against the validity of the marriage at which no clergy- man had been present. was of course inconsistent with " Pollock aM 372. p. as we have seen. were in favor of its validity. this erroneous decision Maitland. the religious ceremony in an early day. Bracton tells us that the endowment can only be made at the church door. in their History of English Law. 1669. but on account of the precise form in which the question was put to the House. the presence of an ordained clergyman was essential to the celebration of a valid marriage. ) And James "Bracton. was held essential to endow the wife with the right to the husband's land.

the result of a wilful criminal relation. in upholding the marriage relation from a very early day. which origin- ated in 1302. Bliss. the children would be held legitimate and capable of inheriting. 481. PoUook and Maitland's History EIngUsh Law. the pale of the law. Year Book. 63. both in the tem- poral and ecclesiastical courts.^° The courts. as the widow of her first husband. 11-12 Edward III. In answer. case of William and Margaret Paynel. p. "Statute West. uncases where the parents der the law.^2 These parties petitioned the king for dower that was due the woman. Calendar of Papal Registers. the recognition of the validity of the marriage the ecclesiastic and both not and temporal courts went to the ex- treme limit to legitimize the offspring of marriages. but the' consort who abandoned her husband was written beyond to dwell with her adulterer. a woman who in the eloped and abode with her adulterer was punished by a loss of dower^^ and this statute was enforced. of the reign of Edward I. 34. John de Camoys. William and Margaret produced a solemn charter. II. i. 433. in good faith. . 395. or if a woman. By an old statute.. It was charged that Margaret had eloped with William and committed adultery with him.' 26 MAEEIAGE LAWS AND CUSTOMS. p. went the full limit. re"Bracton. in order to legitimize the offspring of doubtful marriages. "II. whereby her first husband had "given. t. children depended when the legitimacy of upon such a construction and in had married within the prohibited degrees of consanguinity. married a man already married and believed that he was single and had children by him. Eetroactive and putative marriages were recognized. 254. c. Second Inst. granted.

27 leased and quit-claimed" the said Margaret to William. held that the facts on their face constituted adultery and since no reconcilation of the first husband was shown. touching the marital relation. to the orator Hortensius and took her back again. :." " Rot. p. "Wedding the Eimauk. yet this case is not a parallel to many which could be cited in the golden days of Greece and Eome. of Caubu^ . -i*t). Marcia. A." If the Investigation of Edward J. however. Day in All Ages and Countries. So little sanctity was attached to the marital relation in Greece. "Marriage and Divorce Laws.MAERIAGB LAWS AND CUSTOMS. in his book. so contrary to our present standards. among ried ladies dower. Wood. D. under this statute. that men were accustomed to loan their wives to their friends and the literature of the period made poetry of marital infidelity and fornication and adultery seemed about the commonest employment of both individuals and gods and goddesses. * Ringrose. Part. 1302." Is accurate. and that by the oath of whom were married and unmarand a prioress. They also introduced evidence to the effect that after they went to live together they had heen charged with adultery in the court Christian. but that the it is said Younger Cato loaned his wife. they had successfully met this charge and they offered to leave to the decision of a jury the issue whether or not they were guilty of adultery in living together. The Eomans had more oi the religious tendencies than the Greeks. after his death. The court. in a lengthy decree. the woman was not entitled to compurgators. even in the days of Pericles.®* This illustrates the easy morality of the olden times. 9.

" vol. was contracted to Margaret. of the Paropamisan mountains of India." pp. "the Candyans. although in derogation of the rights of the life-partner of either. 167. for the purpose of avoiding wardship and to prevent the children from forming improper attachments. the "Mpongmes. "the Keiaz. as do also the people of Kamul". but on account of sickness in the family. 237. fourth Lord Berkeley. in England. which custom or to effect advantageous family connections for the parents. of the lower and middle classes universally practice polygamy and also lend their wives to their guests". . 97. and be was "lend their wives to their guests". lend their wives. During the middle ages. Lord Lisle. lend out their wives. II. to the marriage of infants of tender was so prevalent in England and France in the past centuries. when was only seven years old. " Wood's "Wedding Day in All Ages and Countries. yet the natural selection between two adults of the opposite sexes. Such.^^ when she was Maurice. 146. who are polyandrous. and the Chukchi. in the forty-first year of Edward HI. seems hardly so depraved as the consent by the natural parents. in the north-east of Siberia. an African tribe. History records that Thomas. as do also the Aimaks. Lord Berkeley. i>." and "the Koryaks. lend their wives. because so contrary to the natural moral instincts. it was stipulated that she should remain tbe girl with her father for four years. and because of her tender years. to prevent his wardship. they were married eight years old. conduct seems almost unbelievable. years. 151. "The Wedding Day in All Ages and Countries. was knighted at seven years of age. the marriages of little children were frequently arranged by their parents. 116." II.28 MARRIAGE LAWS AND CUSTOMS. daughter of Gerald Warren.

" vol. and the marriages were celebrated at the earliest possible age. p. I. I. and in tropical countries. p. in these several countries. Tacitus Germania c.) The Arabians bought their wives as they did their slaves. who demanded a half-fare ticket for his wife." vol. for the sale of their daughters. 116. recognized the "sale marriages" of the validity of these child marriages.) . 364.^* The law.) In Syria every man paid a sum for his wife. when old. 47. idem. 221. 179. enroute to England.Ante. (Ante. ^ Wood's "Wedding Day in All Ages and Countries. The payment of money was frequently the only form of marriage. p. in the past century parents married their children when still and the case of a Brazilian traveler. ^ Wood's "Wedding Day in All Ages and Countries. p. The old Babylonians and Assyrians held a regular market day at a public place. 82.^'^ of age. 70. 51. Pollock and Maitland's History English Law. proportionate to the rank of her father. p. to Elizabeth. 29 married at the age of eight. the marriages occur at a corresponding earlier age. (. 18. in ancient Greece. (Wood's "Wedding Day in All Ages and Countries. pp. 72. p. in years of infancy In Brazil. who was under twelve years 1853." vol.56 the bride was also but eight years Hundreds of similar cases could be mentioned in France and England." vol. p. ac- curred in the year We are also told that the Hungarians of the sevenstill teenth century often betrothed their children while in their cradles. I. daughter of Lord Spencer. I. which can never rise superior to the preva- lent sense of right in a given community.) The custom of purchasing wives was known to the ancient Greeks and was strongly opposed by Aristotle. (Wood's "Wedding Day in All Ages and Countries. just as it validated the old Saxon days^® and in early feudal times recognized "Ante idem. idem.MARRIAGE LAWS AND CUSTOMS. 33. where the women develop at an earlier age. ""11.

the validity of exactions known as "Maiden-rent. to marry. 155. are inBurckhardt says tliat among the Bedouins. even after she became of age and she could only marry with his consent. Romans and French. pp. in Henry VI. in to the Lord of the Manor. in an early day. ancestors. p. Javanese. a female was in the custody of the Lord paramount. but she shall pay to me her maidenhead. when he says: "* * * There shall not a maid be married. but it was sufficient. The custom was based upon the fealty which the husband owed the lord and since the woman lost her inheritance. pp.) (Wood's ™Bouvier. I. She was bound to obtain the consent of the Lord. a Tarter tribe. and hence the custom referred to in the text. 2' 326). of Mount Sinai. White's "Law in Shakespeare. as well as the other nations above mentioned and the custom of marriage portions and doweries is "Wedding Day no doubt the outgrowth of this old practice. 371." vol. Scene VII." (Act IV. vol.) pp. as well as our early Saxon (Wood's "Wedding Day in All Ages and Countries. 174." Sec. and vol. In legal contemplation. ere they have It. . Reeve's History English Law. Ostiaes. Laplanders. II. II. Cowel. and then he was bound to find her a proper marriage. 173.*'" night with the bride As the relics of a barbarous age. 214. such licentious cus- toms.. in All Ages and Countries." a sum paid fine. maris a mere matter of purchase and sale. like the evidences of genius and depravity fre- quently found co-existent in the same individual. The custom Salic law. if she gave cause of forfeiture. 85. the ancient Germans. the lord had it in hia power to exact anything of her. an exaction allowed by way of a punishment for the ofCense of belonging to the frail sex. 369. 173. Reeves History English Law. It of purchasing wives is perhaps derived from the old was known to the ancient Jews. Circassians. 299. if she had the consent of the chief lord. I." vol. idem. 90. His custody continued until her marriage. Shakespeare makes Cade refer to this old barbarous custom. 371. riage Ethiopians. until she reached her majority. in the nature of a consideration of his relinquishment of his acfirst customed right of spending the of his tenant. 210. p. 247. 370.30 MARRIAGE LAWS AND CUSTOMS. or lose her dower. {Ante. I. p. pp.) And tlie same custom obtained among the Mohammedans. 3.

written 2250 years before Christ prowife. which has obtained from an ancient period.MARRIAGE LAWS AND CUSTOMS.®^ In patriarchial days. vided for the return of the dowry. France and other continental countries. to meet the different conditions and institutions of later periods. in case of the divorce- ment of a barren XXXIV. we find Shechem. 16. as existing facts connected with the given institutions of a past age and also because many of the ancient customs. The custom wife.** vol. is no doubt the result of the old practice of paying for the wife in money. land. " Smith's Diet. Greek and Roman Antiquities. first known code of laws ever written. gradually changed. for the marriage of Dinah and he said unto them: "Ask me never so much dowry and gift and I will give according as ye shall say unto me but give me the damsel to . Indeed. teresting 31 from a historical standpoint. the oldest known laws treat of the marriage dowry. p." ""Genesis. or sums paid by way of settlement being a mere modification of the old sale and purchase of the bride by the husband.. with the passing years. 12. negotiating with old Jacob and his sons. furnish the basis for the later customs and practices. II. who . and the old marriage dowry.^^ of the Eomans. " Wood's "Wedding Day in All Ages and Countries. is traceable. of giving a dowry. in altered form. as we find that the code of Hammurabi. the presents."«2 The donatio propter tion nuptias. "In the. directly or indirectly to this old practice. King of Babylon. so far as our history goes. in the old code of Hammurahi. the son of Hamer. or marriage portion. the source of so much legisla- and litigation in ancient England.

"Ante "Genesis. Sees. a sou and a denier.''^ date®''' ject. he sent.®^ Under the old Angle-Saxon law. we find. and if he did not the husband could deduct all the dowry from the marriage portion and then return the marriage portion. . France. Littleton. in order that the gift could be reigned from 2285 to 2242. and marriage and it was pro- vided that if a childless woman should be returned to her father. in that coimtry. 18." " Selden. as a custom he found to exist amount the ancient it obtained among the Hebrews. 17. married Marat the guerite of France. C. Johns' "Oldest Code of Laws. in 1299. he endoweth the woman of his whole land. he should return the dowry. at an early and has come to be a part of the marriage laws of most of the civilized countries. p. and there openly doth declare the quantity and the certainty of the land she shall have for her dower. Code Hammurabi.'''' Speaking on this sub- Gauls . 31. we find that doweries just as in modern statutes. he endowed her door of Canterbury Cathedral. II. portions were spoken of. Johns' "Babylonian and Assyrian Laws. 163. '"Ringrose "Marriage and Divorce Laws of the World. p.' pp. "Coke. or of the half." etc. ''^° ' Accordingly. the house of her father. which became by law. the usual marriage offering. by proxy. 33. X3CXIV. "> Wood's "Wedding Day in All Ages and Countries. after affiance and troth plighted." idem. 32.®^ Caesar speaks of the marriage settlement. 12. vol.. of other lesser part thereof.32 MARRIAGE LAWS AND CUSTOMS. dower could be assigned only at the church door. 164. and Money was given the bride. B. from an early day in we find that when Clovis married the Prin- cess Clotilde. when Edward I. Littleton says: "When he cometh to the church door to be married there.

p. pp. Scene least. Thus. Act II. that if his son shall love his daughter. and will you.''^* In the ninth century the ring was used by the Romans for betrothal purposes and not as an insignia of mar" Wood's "Wedding Day in All Ages. 97. in his various plays. . as a convenient in ancient sign of marriage. Your father hath consented that you shall be my wife. 33 to see witnessed by all the persons who had assembled the marriage ceremonyj^ Seldon says that the use of marriage rings. your dowry 'greed on. is made to ask the duke of Burgundy. Scene I. 53. 25. Cordelia: "What. Boyet. Shakespeare makes frequent reference to the marriage custom of giving a dowry to the bride. refers to Aquitaine as "a dowry for a queen.) And the poor Lear. in the (Act I. from the pagan custom of the Italians. "Her dowry shall weigh equal with a queen.. in "Love's Labour's Lost. 95. 16. 22. Scene I). p. 66. in lieu of the dowry money. the ring being given as a symbol of the husband's good will." (Act II. nil. of previous daysJ^ However this may be.''^ The betrothal ring was used Eome. L) White's "Law in Shakespeare. "Wood's "Wedding Day "Genesis." King John tells Phillip of Prance. in "Taming of the Shrew": "Pet. in All Ages. refers to the "large and sumptuous dowry. by the Earl of Armagnac. 131. II. XXIV. In speaking of the proffer of his daughter to the King. II. you. Scene I. We find that Isaac propitiated the favor of Eebekah by present- ing her with a massive ear-ring and two bracelets. will you require in present dower with her?" 1' Henry VI." (Act v." vol.) Petruchio tells Katherine. the custom of giving wedding rings to the bride dates from an early period. p.MAREIAGE LAWS AND CUSTOMS. grew out of the old custom of giving the bride a dowry. and the Christian church no doubt adopted the wedding ring." Sec. in discarding his daughter.. in speaking to the Princess. I." (King John." vol. "Wood's "Wedding Day in All Ages. I will marry you.) Gloster." vol." (Act II. Scene I.

was used by the Anglo-Saxons. II. old shoes. 149. '" of II.''' it MARRIAGE LAWS AND CUSTOMS. that a wedall ding ring should be used at This custom is still church marriagesJ^ retained by the Catholics. p. sprinkled with holy water. ^' Ante idem. to Anne of Cleves. 130. daughter of the Earl of Warwick. the ring given by Henry VIII. p. when it was transferred to the left. which attached to the marriage ceremony. as rice was no inconsiderable portion of the marriage ceremony in Persia. until the marriage. that given by Phillip. II. 94." as some writers refer to the antique periods of the human race. 145.'''' and thus grew the custom. and such like practices. Queen of Scots. " During the reign of George I. I." vol. pp. his wife. Wood's "Wedding Day in All Ages.'^* Eice was "Ante idem. among whom the ring is consecrated by the priest.. and George II. 135. the wedding ring was placed on the usual finger at marriage and then transferred to the thumb. stockings. The Quakers and Mormons reject the wedding ring. of Margaret. of the wife of Duke John. The wedding rings of St. of Sweden. as celebrated in the early days of "little knowledge. bouquets. . 135. of France. the ring being placed on the right hand." vol.. are also responsible for the present custom of throwing rice. 134. because its heathenish origin. are described in Wood's "Wedding Day in All Ages. to Mary.34 riage. Wood's "Wedding Day in All Ages. 133. '"Ante idem. of Martin Luther and Catherine Von Bora. it became a part of the English law. and by Lord Darnley. Louis. until finally. p. riages. to Queen Mary. at mar- The custom of throwing rice was no doubt borrowed from the ancient Persians. on the be- trothal of their infant children. Wood's "Wedding Day in All Ages. p. in the form of a cross and then returned to the bridegroom^* The superstitions of olden times." vol." vol.

Shakespeare's mention of the gemmal ring. under the Mosaic law. less than others. The sponsor for the man. X. the brother of a childless man was bound to marry his widow and until he re- Chaucer's reference to the wedding ring. in his "Troilus and Cressida". rice was scattered over them and prayers for their fruitfulness were offered. in England. touched the woman's forehead and asked her if she would have the man the same ceremony was gone through with by the sponsor for the woman and the hands of the contracting partigs were then joined and . Thus." vol. pp. left The custom of placing the ring upon the fourth finger of the hand. in the presence of two sponsors.." "Twelfth Night" and "Merchant many traditioas of the wedding ring. luck. Scotland and the of United States. will he found sented in Wood's "Wedding of Venice." vol. pp. Javanese. is directly trace- making the shoe a sign renunciation of dominion or authority. vol. in "Mid- summer's Night's Dream". the in- habitants of Elba and is quite generally used. according to the opinion of a writer in the British Apollo. 129. 44. met at midnight. as well as a symbol of exchange." ™ Wood's "Wedding Day in All Ages. in other Eurbpean countries. 35 considered an emblem of fruitfulness and the contracting parties. II. so generally followed. the Brahmins. pp. after their betrothal. I.*^ The custom of throwing a shoe after the bridal couple... 149. 224. . 128. 94. in 1708. Day in All Ages." with Interestingly preII. 133. as a token of good able to the old Jewish law." Finck's "Primitive Love and Love Stories. dates from the discovery of the convenience of the left hand for such ornament) because less employed than the right and the fourth finger. 156. pp.MAERIAGE LAWS AND CUSTOMS. 95. on a bed.*° Eice also constitutes an important part in the marriages of the Hindus. "Ante idem. vol. and his use of the ring in "Two Gentle- men of Verona. was needed in ordinary use. See Knowlton's "Origin of Wedding Superstitions.

would seem to be confirmed by the story connected with the proposal of the Emperor "Vladimir to the daughter of Eaguald." to great Reformer used the shoe at a marriage ceremony. "Wedding Day in All Ages. she replied: "I will not take off to Boaz. "Wood's "Wedding Day in All Ages. as a token -of his renunciation of Boaz's right to my shoe to the son of a slave." so the kinsman it woman plucked off his shoe and gave Euth and of marry her. in his "Liife of Luther. 7. as a token of the exchange and of his power over her. p. at weddings. who touched her on the head with it. in England." vol. the marriage '** ' And as a part of the Anglo-Saxon days. IV. Aug.36 MARRIAGE LAWS AND CUSTOMS.. she could not nounced his fused. Hutchinson's "Marriage Customs in Many Lands. id-em. I. '' 13. that a man plucked off his to his neighbor. in the espousal be- tween Euth and Boaz.. has existed from a very early day and XXV. the marry another. right. . we read that was completed. "Boston Trans. of her complete independence.*^ betrothal. 218." show that the Wood's Ante Wood quotes Michelet. If re- woman was and ' ' obliged to "loose his shoe off his f oot " spit before his face. for when asked if she would not marry the Emperor.*" •''Deuteronomy. Wood's "Wedding Day in All Ages. is said to be purely a British custom. for "as shoe and delivered of this famous it it Israel concerning changing. vol..*^ That this custom was later used by the early Christians. 5. 10. p." I. in the early when Stocking throwing. the father of the bride took off her shoe and handed it to the bridegroom. "=Rutli." vol. 1910. according to Bible evidence. 8.. II.*^ from " as an assertion The custom was folwas the custom in lowed. 16. p. 16.

" It is reported that this custom."®'' In Fletcher's Poems.*^ The common law liability of the community property of the wife and her husband for the ante-nuptial debts of his wife." . in 1604. says that "at night there was sewing into the sheet. Half-bedded." In 1796 says: "The wedding-cake now through the ring was Tho stocking thrown across the nuptial bed." we read: "The stocking's thrown. '"Ante. 215. 216. until George III. at court. in England. p. And Tom and Jenny both alone. And in the "Collier's Wedding. as well as that of put- was followed at the wedding of Mary. of Sir Philip Herbert. Referring to the custom of stocking-throwing. is left hose.. at the wedding of Mary II. written in 1656. Queen of Scots. pp. and the sedate Prince of Orange and that this custom was followed at nearly all the marriages of the ting the bride to bed. the company gone. crowned heads during the middle ages. to Lord Darnley that the same ceremony was gone through with. like the peeping day Behind Olympus' cap. Rowe. casting off the bride's with many other pretty sorceries." on his wedding night. In his "Happy Village. Clarinda lay. gave rise to a peculiar custom.. ' ' '"Ante idem. 221. Whiles at her head each twitt'ring girle The fatal stocking quick did whirle To know the lucky hap. in England. 37 A letter describing the marriage. idem.: MARRIAGE LAWS AND CUSTOMS." led. referring to this old custom "This clutter o'er. set aside the joyful custom of posset-drinking and stocking throwing. . a verse de- scriptive of Clarinda's wedding.

same Home In 1766 a Whitehaven bride also sought to attain the end." upon the theory that her second husband would thereby escape liability for the debts contracted by her former hus- band. as well as money let could throw off her debts with her dress. the holy bonds of matrimony and against the record in the parish register occurs aforesaid the memorandum: "The Anne Sellwood was married in her shift. p." in Uncle Remus' Magazine. June. of Chilters. Anne Sellwood. was also followed in the Colonies." This custom obtained from early Saxon days into the eighteenth century and the debtor bride often came to the wedding arrayed only in a plain white "smock" or "shift." or "smock. finds in the English cases during the seven- many examples teenth and eighteenth centuries. 1912. as a basis for charging him with responsibility for her debts. as known "Smock-marriages. under which a widow was married with nothing on but a "shift. known as "marriage in a smock. were united in 17. pt. 1714.38 MAERIA6E LAWS AND CUSTOMS." as a public declaration or warn- ing to her creditors that she took no property to her husband. '*" ' without any clothes or head-gear on. by going to church. ' ' in England. 2. 48." Chambers Journal.** This eccentric custom." or "Marriage in a Shift. " "Matrimonial Curiosities. vol. All Wiltshire and John Bridmore. On October Saints. by going to church in her smock or under garment and thus her creditors "shift" for themselves. 813. as became any decent " See Article on "Ancient Marriage Customs. This notion that a bride who lacked modesty. .

in order to save the appearance of his bride and also his credit. in the pres- ence of the assembled guests. half way between her house and his own. while decently clad." refers riage" at Westerly. in 1748. of using their best efforts to spare the spirit evinced by these ancient dames of the ' ' pocket-books of the men of their choice. so while modern husbands would not appreciate the entire return to this now obsolete custom. they would not object to the effort of brides. 39 woman. enveloped only in a sheet. in emulation of the shift marriage" period. a Lincolnshire curate officiated at a wedding where the bride stood before him." . well provided with warm garments which he dressed her in. "Cus- toms in old New England. especiallly for the occasion.®^ to a "smock-mar- The traveler Kalm also describes such a marriage in Pennsylvania. "Ante idem. 79. met the bride in her scant drapery. in her interesting volume. after formally announcing. with the proper spirit of chivalry.®* While such attempts evidence a perhaps dishonest effort to evade the law of debtor and creditor. undressing herself to her sole nnder-garment for the ceremony and donning her clothes again as soon as the knot was tied. these "smock-marriages" nevertheless evince a most laudable inclination on the part of such bold brides to save the purse of their intended husbands. that the wedding clothes which he placed upon her belonged "^ to him and were only loaned to the bride.MAERIAGE LAWS AND CUSTOMS. Alice Morse Earle. " "Courtship and Marriage Customs. where the bridegroom. p. Rhode Island.^^ And it is recorded that somewhere between the years 1838 and 1844. Ante idem.

1774 thinly clad . she went to meet the bridegroom. in his interesting book. hidden behind a curtain. Vermont. thus and the minister found her with chattering teeth and shivering from the cold." or under-garment." or "smock. so the gallant gentleman of the cloth kindly threw his cloak around the freezing bride. Her groom had not been as thoughtful as the Pennsylvania bridegroom. John Gatchell married Sarah Cloutman. during the cold weather in the month of February. The widow was not even clad her "shift. of Newfane. but appeared at the ceremony. William C. while "Barle's "Customs in Old New England. in a recess of the chimney. in a nude condition. to protect her blasts. He describes how the widow Hannah Ward. in loaning her clothing for the occasion. while she was clad only in her "shift. Maine. in 1789.^s from the wintry is In Hall's "History of Eastern Vermont. . 79." gives an account of two such marriages that came under his observation." " History. Wells and Kennebunkport. The wedding of the Widow Mary Bradley oc' ' curred while she was clad only in her "shift. "Along New England Eoads. many "smock-marriages" occurred at York. Prime. Mr.** and in accordance with the popular opinion that the creditors of the bride's ' ' first husband could not follow her farther than the king's highway." in Lincoln County. as recorded in the early history of Wells and Kennebunkport." there a graphic account of the marriage of the Widow Lovein joy to Asa Averill. p. in 1767. Maine. was married to Major Moses Joy. if she was married only in her shift.40 MARRIAGE LAWS AND CUSTOMS." or under-garment.

which the gallant Major had this old custom. 41 Slie the bride. 2. according to as described by Mr. This strange belief in gallows matches. in "smock or shift. 78. of a "smock-marriage" which occurred on the gallows. that a con- demned felon could be thus rescued." it seems doubtful if such a queer idea could have taken possession of the popular mind. she appeared resplendent wedding garments. held her hand out of a diamond shaped hole in the closet the absence even of in her door to Joy. Prime. perfectly nude." p. In the other marriage. 812. by Gustavus Vassa. provided for her.MARRIAGE LAWS AND CUSTOMS. 48. stood in a closet. Discussing the subject of "gallowe-matches. "Earle's "Customs in Old New England."®** Immediately after the ceremony. 79. however. unless there was some foundation for it. " "Customs in Old New England. in the closet. in New York. by marriage to is any woman who would take him from the gallows. she donned her wedding garments and thus abandoned the old obligations of her widowhood. in 1784. placed by Barrington in the list of legal vulgar errors.®^ One of the most curious variations of this custom. however. as suggested by a writer in Chambers Journal. "^^ at night by a window. when he was liberated to wed a woman clad only in her " shift. under the subject "Matrimonial Curiosities. ••Chambers Journal. is the account given. vol. p. A felon who had been sentenced to death was about to be hanged. in his "Wedding Day in All Ages. the nude bride left her room and standing on the top rung of a high ladder." p." says: "Formerly was current a vulgar notion . 1871." Wood. July-Dec. pt.^® It is perhaps but one of many " "Along New England Roads. But. in the law. 25. and the ceremony was thus performed." p.

in rhyme. that actually existed iu England. begged a condemned person for her husband. '^'^ vol. it in the annals of that country. to the practice. 2. in France. cried out: "She limps."^ Sterill reports a case that he had seen whereiu a woman. with a white wand in her hand. clad only in her smock. the law. under Tyburn Tree. We are told that in 1725 a I.^"** Manningham states that this was the custom. 812. seeing a lame dame advancing toward him. "" Ante idem. which gave it currency and caused it to be followed in other instances. such customs.) '"Ohamhers Journal." (Vol. in olden times. Ante idem. published during the seventeenth and eighteenth Montaigne tells a story of a Picardian. woman petitioned King George for the pardon of a convicted felon. ^"^ Ante idem. and that if any notorious strumpet would beg a convicted felon. 2. in order that she might wed him. arising from some isolated case. 48. in story and rhyme. pt. how a merchant of if a woman married a condemned man under the gallows. her plea would be granted. she limps. as there are instances of p. 25.42 MABEIAGE LAWS AND CUSTOMS. .^°^ Whatever recognition it the law gave this custom. "^"^ The ballads of that Eoxburghe also tell. and France is evidenced by the many references centuries. Certainly this exemption had a quasi-legal existence in France in the fifteenth century. whereiu the Court recognized it. who. not and Italy. in order that their joint lives might be bet- tered by so holy an action. or under-garment. despatch me quickly. about to be hanged for her husband. she would thereby save him from execution.

governing the relation whereby the opposite sexes. so we need "*'Roxburghe Ballads. it is close. was wooed by no less killed a than ten goodly maidens. If you. in Ueu of our good-will. Will grant to us your love. however. Chichester. 43 who had and last speech German. judging the future by the past. "We may your death remove. In the ultimate days. when human multiplication has done its work when man has become so populous that every square foot of ground upon the known earth shall be covered by a man the law of evolution will no doubt — — have eradicated many of the present marriage laws and customs. after his sentence upon the gallows.: MABEIAGE LAWS AND CUSTOMS. the marriage relation will continue same crude and it unscientific condition that has controled for the past five thousand years. "This is who thus addressed him our law. . high time to bring the chapter to a Of course it was only attempted in this chapter to take a most cursory view of the great subject selected and to present but a few of the many laws and customs that have sprung up among the various peoples of the earth. to enter into a study and analysis of the vul- gar errors in connection with this subject-matter. based upon a false public opinion and the generation of the species will no doubt be conducted along more advanced and scientific lines." quoth they."^"* But having left the fixed doctrines of the law govern- ing the relation between the opposite sexes. For in the the next few centuries. known as marriage. appropriate themselves to one another. in accordance with the law of natural selection.

but leave this vexed problem for succeeding centuries. "Still wondering how tlie marvel came. or wind.wrung spray. In the meantime. the sport. the atoms known as human beings. not now concern ourselves about any "devastating torrent" of children. mere motes. the waif passions. in Midnight. error." And thus. will continue to be brought into the world." Tossed into the "giant grasp of Life. To slake the thirst of fleshy love. as a result of the unnatural laws and customs governing this natural relation. white and cold. wrath and fear. and then step by step. returned" to "couthless youth." the son of man will con- tiaue to be "the toy." continue to come and go "Bound with the sun-illu- mined-lantern held. like gale-borne dust. wan. Lisping again the broken words. will the "moving row of magic shadow shapes. less millions of lives. ' result of the relation established toms treated of in perforce. by the Master of the Show. for successive ages to come. Count- human beings have lived their little with their tincture of lust." and stray of Empires have perished and nations have risen during the period covered by the foregoing pages. tasted." as a by the laws and custhese pages. because two coupling mammals chose." .44 MAKKIAGE LAWS AND CUSTOMS. till all the ' tale be fully told. the "joy in an armful of beautiful dust. like visionary things. for a brief space.

but bring about evil results upon the life. and has not justified himself. Textea "Oldest Code of Laws.. King of Babylon. This unnatural power was supposed to be acquired by a compact with the devil himself. whereby they could not only foretell the coming of future events. . II. Witchcraft and Sorcery." 1 Elamites-Semitiques. or possessions of individuals.^ In course of time. Contracts and Letters. one who dabbles in spells and fortnne-telling. that "If a man weave a spell and put a ban upon a man. by which the wizard venefica. or witch bargained his or her soul to the devil as a con- power of enchantment. 170. he that wove the spell '^ upon him shall be put to death. promulgated by Hammurabi. men and women have tried to hold communion with superior beings and to pierce the sideration for the secrets of the future. 2285 years." etc.^ From the earliest times. ' Johns' Scheil's '^Tome IV. the first there written. 169. is taken from the Hebrew word. and we find that it is before Christ.: CHAPTER Witch. the term was used to indicate those who held communion with evil spirits and derived a super-human power from them. 'Ante idem.." pp. two sections of the code are levelled at the crime of witchcraft. rendered meaning a poisoner and divineress. ' Mackay's "Memoirs of Delusions. bodies. Johns' "Babylonian and Assyrian Laws. In the oldest code of laws in the known world. » II." (45) .

Samas. in their inability to understand the science of common things.46 WITCHCEAPT AND SOECERT. when King Hammurabi. by claiming to have received delegated powers from on high and hence Moses provided in his law that "Thou shalt not suffer a witch to live. established to the satisfaction of the judges of that period. During the time of Moses." in the absence of more direct proof of the existence of the offense which existed only in the imaginations of the superstitious inhabitants of that misty age. that the very first sections of the code were directed at this crime. ' Ante idem.* According to the photogravure of the blocks of diorite. attributed appearances which they could not explain. we find that many im- man — — Supreme Being. by the test of a plunge into the "holy river. to supernatural agencies and blindly believing in this Mosaic law. should plunge into the "holy river ' ' and if the river overcame him. upon which these most antique laws were written. go to the weaver of the but if the river made the innocent. his house should spell. And the same code provided that the man against whom the spell was woven. So prevalent was the offense. he should take the house of the sorcerer and he was to be put to death. . the judge of heaven and earth the old delusion of witchcraft and sorcery obtained. according to the delusion then obtaining. was thus justified by this Biblical injunction and many conscientious men and women. proceeded to violate the highest laws of persons convicted of witchcraft. therefore. received his law direct from the seated sun-god." The long persecution posters insulted the intelligence of the by a misinterpretation of this text.

319. the mere possession of magic the old heathen world. As Mackay shows. in the early days of "little knowledge" became the source of a whole train of superstitions.® own led to new laws against such supposed practices. . from which fount a deluge of blood and horror poured over Europe. physically. ch.^ The Twelve Tables of the early Eomans contained penal provisions against one who should bewitch the fruits of the earth." in Smith's Dictionary of Greek and Roman Antiquities. ch. 168. Exod. was supposed to come. was also recognized as a most beneficial art. into his and a century and a half after the adoption of the Twelve Tables. through which the religion of domestic life and the remedy of healing the sick. vol. in his property or to have hurt him.. so the Eoman laws were directed against those supposed to have done positive injury to a person. vol. 'Niebuhr's Liecture. in was not. 18. pp. to mean the punishment by death who did positive injury to another in his person or property. art. I. which field. for two and a half centuries. or conjure away his neighbors ' corn. Roman History (English Tr.. 295. and book II.). Mackay's "Memoirs of Delusions. II. in the punishment of those con- victed of witchcraft and sorcery. "Memoirs of Delusions. George Long's article "Lex. as being be turned to malicious or wrongful purposes.WITCHCEAI'T AND SOECERY." vol. Mommsen's History of Rome (English translation). "11.. tlie sublime hope of Immortality. book I. in the fanaticism that a Divine injunc- tion -was being obeyed.. I.. As the Mosaic law against witchcraft was formerly of witches interpreted. II. XXII. p. 47 of God and man. in itself a crime. 169. under the pretense of charms and incantations. 2." p. for liable to it while it was dreaded. In other words. one hundred and seventy Roman women were tried and convicted of poisoning.

by supernatural power. just as it existed in the early days of the seventeenth century. "in which is layed open how craftily the divell deceiveth not onely the witches. for we are many. Emperors in the Codex Justin. as reported by Marke." in the above interesting publication." In this Dialogue. 72. vol. because it gives In realistic hue. . as we see in the Gospel. in the "Dialogue on Witches. 52." is quoted as a sufficient reason for rooting them out.) The belief that cats were bewitched to do the bidding of the devil. which formed such a large part of the delusion of witchcraft. or afflicted curing cattle or persons with disease/ The savage laws by ' the Christian 18. the words of Moses are quoted that fbe Lord would cast out those nations that hearkened unto soothsayers and diviners. Daniel quotes Christ's words. That tHs view of witclicraft continued to prevail for many centuries after the reception of Christianity. all those who practiced magical arts for beneficial purposes. By George Giffard." published hy the Percy Society from the literature of the middle ages. The "Dialogue an Witches and Witchcraft. but many other." as evidence of the existence of "multitudes and armies of divels. 42. that his name is "Legion. but exempted from fhe punishment of off hailstorms. is also touched on. from the literature of the middle ages which can be read with much amusement and entertainment. 24. Minister of God's word. which ordained capital punishment for all those who practiced noxious charms against the life or health of others. is evidenced by the laws of Constantine. such as warding and excessive rains or windstorms. lib." The command of the Mosaic law "Thou shalt not suffer a witch to live. but that they should "also bee rooted out.48 WITCHCRAFT AND SORCERY. a vivid pen picture of the old delusion. pronouncing that every one that does those things are an abomination to the Lord. the law. and so leadeth them awrie into manie great errours. presents the reasons and basis for the belief in Witchcraft." (Percy Society Pub. in the fourth cehtury. as practiced in the middle ages. that the Lord not only declared that such as practiced witchcraft and sorcery were an abomination before the Lord. tit. in Maiden. published in 1603. 40. ix. VIIL.

p.^ And during the reign of this monarch. 420. and the fear of a return to paganism was looked upon as most improbable. Astrology and necromancy were looked upon with considerable admiration by the most powerful of the church and laity and even Bishops and Popes tempted the powers of evil.^* After the influence of the Catholic religion had safely extended its power over the western world. and a book on the subject of astrology was found under his pillow. 4. 553. •Leg. by little harmless excursions into the great realm of the supernatural. op. Archbishop Gerard. in England. II. II. 678. R.® During the reign of Henry I. however. Hen. Pollock and Maitland's History English Law.. This temporizing by the church continued until about the beginning of the thirteenth century. Lea. when heresy »Cnut. the church was not inclined to look with such aversion upon the class of criminals accused of dabbling in the black arts. legislated against the witchcraft which was heathenish. . was accused of necromancy and sorcery and when it was discovered that he had died suddenly. lii. even. Pollock and Maitland's History English Law. Brunner D. harm The Anglo-Saxons patterned their laws against sorcery and witchcraft after the folk-laws of the continent and Cnut. early centuries did considerable 49 in after ages. 653. p.— WITCHCRAFT AND SOKCERY. his body was refused burial in the Cathedral. ii. Pollock and Maitland's History English Law. " II. of York. criminals who encompassed the maiming or sickening of a person by maltreating a waxen image of him a belief that generally — obtained from this time until the seventeenth century were either hanged or burnt. G. cit. II. 553. 71.

in humble submission to the the power of the demands of the Pope. were to be immediately executed. the to enable a wolfish rival or subject. " Garinet's "Histoire de la Magie en France." p. and afflicted human beinga with sores or disease. sorcerers Charlemagne frequently ordered all necromanand witches to be driven from the realm he published different edicts. . "Ante idem. destroyed the fruits of the earth."^^ By these edicts.^^ church of this threatened From an cery. a most stringent prosecution of witches and sorcerers and the crowned-heads of Europe. trials for witchcraft it tinuously multiplied and and sorcery conbecame the common means monarch to rid himself of a disliked upon some trumped-up charge. in France. Scotland and other Euro- pean countries. used kingdom in an attempt to rid the evil. death was decreed against all those who practiced feats of sorcery and witchcraft. people were punished for supposed crimes resulting from witchcraft and sor- cers. in France. so common that the interests of the church were threatened and when the church began. 553. hurt cows. in various had become parts of the world. " II. Pollock and Maitland's History English Law. or windstorms. and those who conspired with the devil to afflict either man or woman. England. who excited tempests. with barrenness. preserved at length in the "Capitulaire de Baluse.^^ From the time of Charlemagne until the eighteenth century.50 WITCHCEATT AND SOECEET. based upon some trivial circumstance connected with an unexplained phenomenon. or other animals. and with the gradual increase of the crimes attributed to them. upon their conviction. early day.

of Germany." vol.WITCHCRAFT AND SOECEET. However. Sprenger. " Dr. . in common with the millions of their contemporaries who were votaries of the delusion of witchcraft and sorcery. p. as about nine million. Eight thousand of them were upon the field of battle and the whole race extinguished and their houses and woods were burned. the tragedy of Arras. in his "History of the Crusades. the trial and execution of poor Joan of Arc. in 1233 and a crusade was inaug- urated against them in Germany. in 1429. who were guilty only of living in an age of igno- rance and cruelty. >=Mackay's "Memoirs of Delusions. 51 The destruction of the Stedinger. the Emperor II. for the Crusaders." denies that the Crusaders believed in witches. II. Frederic pronounced his banns all agaiinst the valliant Stedinger. consulted witches to raise evil spirits. . during the entire the Chris- tian epoch. and many other horrible casualties. during the middle ages illustrate the prevalency with which this delusion was used to bring about the death and destruction of a large portion of the human race. from 1307 to the year 1313. shed blood like water. took the lives of priests and concocted an in"^^ fernal scheme to propogate the worship of the devil. to supernatural powers of magic. because they would not embrace the Catholic religion. the edicts of Charlemagne demonstrate quite conclusively that Tasso was right." computes who were burned as witches. Michaud.. in 1234 the persecutions of the Templars. 186. but M. The Pope slain charged that they "insulted the holy sacrement.^* At the instance of Pope Gregory IX. in 1459. Tasso attributed the belief in magic and witchcraft to the Cru- saders. attributed the misunderstood facts in the natural world about them. but continued to adhere to their own ideals and ideas in religion and government. in his number of persons "Jjife of Mohammed.

The Templars had also offended the Church and in 1307 the charge was brought against them that they were in communion with evil spirits and had sold their aouls to the devil. in the previous century.52 WITCHCRAFT AND SOECEET. of France. This charge effected its object and they were extirpated. after they of witchcraft had been convicted instances of their persecutions. but actually con- . confessed the most unreasonable charges which were lodged against them and this only heightened the popular clamor and the persecution against them. proceeding hand in hand to accomplish the crime. fire. inaugurated by the Pope and Monarch. until the year 1313. even as the poor Stedinger had been. when the Grand Master of the Order Jacques de Molay was burned to death. by a slow Pope. and other upon this charge. as a body. Philip rV. in a field adjoining the city of Paris. Fifty-nine Templars were burned alive. and sorcery. to rid themselves of an odious order —a lasting stigma to the memory of the Pope and Monarch responsible for such conditions and an ever increasing source of pity to the millions possessing the divine gift of a tender fellowfeeling for their own kind. oc- curred in the different provinces. acting under authority of the Templars and Hundreds were put to the rack and when tortured by pain. religion and law. a fitting climax to this reign of terror. not only failed to raise a hand to pre- vent the conflagration that consumed and tortured the sainted body of this patriotic victim. ordered the arrest and trial of the the confiscation of their goods and property. In 1429 the poor Joan of Arc fell a victim to the charge of witchcraft and sorcery and like dual criminals.

while others were thrown in prison. in tlie name of holy order and legal procedure. There are not judges enough to try them. and after severe torture they admitted that they were in collusion with the devU and were condemned to die. about this period. Many when placed upon the rack.: WITCHCRAFT AND SORCERY. they were burned at the stake. which will remaia eternally as one of the saddest and most pitiable spectacles of the weak- ness and criminal blnnderings of the Church and State. for having caused a tempest. appears the signifi- cant epitaph: "convicta et combusta. No day passes that we do not render our tribunals bloody by the dooms which we pronounce."" Speaking of the great prevalency of this accusation. guilt. and if the criminal register at Constance is to be believed. 194." p. observes "The seats destined for criminals in our courts of justice are blackened with persons accused of this guilt. Mackay's "Memoirs of Delusions. " Monstrelet's Chronicle. enforc'd They were placed upon do speak anything. .*' In 1487 two old women were arrested for witchcraft. or paid large fines to escape a worse fate. for after the name of each. in Switzerland. "II. the rack. that reflected the hatred and persecution of the enraged populace. 53 summated the crime. fell victims to a charge of witchcraft and sorof them. Florimond. In 1459 a devoted congregation of the Waldenses. cery. where people. in his work concerning the Anti-Christ. prominent rulers and people of wealth were involved and many were burned. at the hands of the ignorant and intolerant courts. ad- mitted their to escape the torture. or in which we do not return to our homes. Our dungeons are gorged with them. at Arras.

p. followed this crusade of bigotry and ignorance. five hundred were burned in Geneva. Danaeus. in the year 1524 about a thousand people suffered death for witchcraft and for several years thereafter the general average in this district was a hundred a year and one inquisitor alone. in the district of Como.54 WITCHCEAFT AND SORCEET. as a result of which they were all burned alive. in Germany. took whatever credit he was entitled to. in 1515 and 1516. "Dialogues of Witches. p." vol. in Italy Sprenger burned more than five hundred in a year. 197. "Ante idem. Remigius. 195. appointed inquisitors in every country.. a wholesale slaughter of inno- men and women.. may be said to properly date from about the year 1488.." vol. II. in France.^* Following the appointment of cent this commission and those of successive Popes. when Pope Innocent VTII." But the Witch Mania in Europe. for having during a period of fifteen years convicted and burned nine hundred poor souls for this imaginary offense.^® In 1520 witches were burned in fires that were ever . . armed with the apostolic power to accuse and punish this class of criminals. were convicted of turning themselves into cats and prowling around and performing satanic feats.^° In 1561 five poor women of Verneuil " Mackay's "Memoirs of Delusions. kept burning to receive their tortured bodies." "Mackay's "Memoirs of Delusions. Cumanus burned forty-one women in one province alone. p. discountenanced and terrified at the horrible confessions we have heard. in a determined effort to rid the Church of Rome of the stigma and opposition of those supposed to be prompted by the devil. 199. II.

Camus to be "tied to a stake and burned alive and that his ashes be then scattered to the winds. when the Parliament of Rouen presented to him a memorial. of Lyons. on Witchcraft. Trais Echelles. II. In the year 1670 a number of women were condemned by the Parliament of Normandy.. while their fol- of the period and strange lowers were persecuted for this crime. ^ Mackay's "Memoirs of Delusions.^^ A few of the English cases will not be found unin- structive as illustrative of the prejudice ^ The Ignorant Canadian French just as the still and persecu- believe in the Loup-garou. were about the same as in France. French did in the centuries gone by. was burned at the Place de Greve. so far as the persecutions for witchcraft concerned. 201. vol. commuted their sentences to banishment for life. the many errors of ignorance at all against witchcraft Eeformation made no head-way and sorcery. in Paris. or fied against In 1573 Giles Garnier. he confessed the crime he was charged with and was condemned by Dr.^^ and prowling around at night and destroying children. for riding broom-sticks to the Domdaniel. "^^ The and and conditions in England. Germany were Italy. during the sixteenth century. the greatest evil to narrate. Luther and Calvin were as firm believers in witchcraft as were the Popes whom they opposed and their followers were even as zealous persecutors of the innocents accused of this crime as were the churchmen of the old religion. insisting . p. 55 In 1571 the celebrated sorcerer. While rooting out superstition..: WITCHCEAFT AND SORCERY." ^Hutchinson. was indicted for man wolf. after his confession. being a loup-garou. Louis XIV. Fifty witnesses testi- him and after being placed upon the rack.

whose head was filled with stories of ghosts and witches and she conceived the idea that poor old Mother Samuel had bewitched her. and after this statute. 1593.) to let them be full. She also confessed that her husband and daughter were leagued with her in witchcraft and all three were found guilty . prevented their ewes and cows from bearing and that she had caused Lady Cromwell's death.and hanged on April 7'. during the ninth Parliament of Queen Mary.56 WITCHCRAFT AND SORCERY. The good old Mother Samuel lived in the neighborhood of Sir Samuel Cromwell and a Mr. but the wise King stood firm and refused his kingdom. of Delusions. when she went near her." pp. Throgmorton and the latter had several daughters and among them a Miss Joan. that he set aside the order for their commutation. as she had confessed. as she felt sudden pains in her limbs and strange sensations. In Scotland. judicially (For this memorial In see II. in 1594. the superstition and fear of the people brought frequent accusations against different people. witchcraft was made a crime punishable by death. many of whom were prominent in Gov- ernment and social circles. Her parents believed her and after a few family casualties the poor old woman was arrested upon a charge of witchcraft filed against her by the family of Sir Samuel Cromwell. is especially worthy of mention. Mackay's murdered in "Memoirs . The celebrated case of the Witches of "Warbois. 289. 298. who was a melancholy girl. tion levelled at those accused of witchcraft in that country. during the sixteenth and seventeenth centuries. upon different persecutions that she had afflicted them with pains and fits and turned their milk sour in the pans. after the death of his wife.

WITCHCRAi'T AND SORCERY. was charged that they had raised a fearful storm at sea." and the Two other was levelled at conjurgations. 226. James VI. and his bride had sailed. Fian and twenty-five others were hanged for witchcraft and Euphemia Macalzean was "bound to a stake. the "Holy Maid of Kent. Fian and his accomplices will illustrate the feeling obtaining in Scotland about this period. Several of the accused were subjected to the torture and finally confessed to the crime and implicated the rest.. in England. and on June 25'. Mackay's "Memoirs of Delusions. Gellie Duncan implicated Agnes Sampson and when she was put to the torture. Barbara Napier. 57 The case against Dr. The * statute of Elizabeth." . Marion Lineup and the daughter of Lord It Cliftonhall. The first statute upon witchcraft. she also implicated Dr. 1591. preceded him to England and when he ascended the English throne in 1603. Gellie Duncan. statutes were passed in 1551. the renown of King James as an enemy to witchcraft and sorcery. and burned in ashes. II. in 1562. he was ready for a new crusade against this obnoxious class of criminals. Agnes Sampson. Fian. which defined the offense and affixed the punishment. quick to the death. Euphemia Macalzean. "^* After this conviction in Scotland. one relating to due no doubt to the machinations of prophesies. Dr. They were charged life. was that of 1541. recognized witchp. to attempt to wreck a ship on which the king. false Elizabeth Barton. witchcraft and sorcery. with having attempted the king's craft through witch- and sorcery.

or shall consult. such offender shall be imprisoned for a year. We are reliably informed that during the Long Par- liament.. it shall be felony.^^ On his accession to the throne in 1604 it King James passed the statute whereby was enacted that "If any person shall use. II).) "See "Butlers Hudibras. when it was repealed and suffered no longer which to disgrace the intelligence of the country.: ' 58 WITCHCEAPT AND SORCERY. craft as a crime of first magnitude. c. alive and quick. 12 and as this left no law in force to punish this class of offenders. Zachary Gray (vol. or any of his goods destroyed or impaired. 8.16. was repealed by 1. or exercise. after date witches. And if anyone thereby be wasted. in body or member. that if any person used or practiced witchcraft. charm or sorcery. 349. or burned. or lamed. any conjurgation of any wicked or evil spirit. (V. enchantment. consumed. practice." edition by Dr. Reeve's History English Law. without clergy. the second offense to be death. covenant with. but all convicted under this statute were hanged and burned. whereby any one shall happen to be killed or destroyed. the first offense to be imprisoned for a year and stand in the pillory once a quarter. The statute 33 Henry VIII. in England. without previous strangling. c. confinement for short intervals. conjurers and fortune-tellers were only subjected to the jail sentences common to other mispil- demeanors. or the lory. or feed any such spirit. during that time for six hours. against the imaginary crime of witchcraft and sorcery. was exerted against the lives. and stand in the pillory once a quarter. . p. c. or property of the subjects." The milder punishment was not inflicted. it was enacted by 5 'Elizabeth. Edward VI. limbs. three thousand witches were executed^" "" and during the first eighty years of the seven- Very severe statutes were passed during the reign of Elizabeth. pnnisliable regardless of whether it by death. ' ' ' This statute continued on the statute books until the year 1736.

it has been estimated that five hundred people were annually executed for witchcraft. ""Lecky's "Rationalism in Europe. 11. making a total of forty thousand who thus met to. attendants constantly prodding her. they were innocent.^^ "Mackay's "Memoirs of Delusions.WITCHCEAFT AND SOECEET. "Lecky's "Rationalism in Europe." vol. they were adjudged guilty of witchcraft and hanged or burned. they were wrapped in a cloth or blanket and placed in a pool of water or a river. in England. was what was called "Waking" the witch. I.. 59 teenth century." About 1644 he made the discovery of some moles or other marks on the accused persons. to keep her awake. An iron bridle or hoop was placed cross-wise of her face with four prongs.^'^ their deaths. She was kept in this position sometimes for several days. He had several tests to subject them to. and if they floated." p. but drowned for their innocence. If they sank.^* Another kind of punishment. so that the prisoner could not lie down. 146. tied. . which he advertised as "devil's marks" and he immediately became in great demand in helping to hunt down and convict persons accused of this Clime. vol. during the whole period referred One of the rankest weeds in the garden of wild de- lusions that flourished in England. so they could not swim. and one of the cruelest was to tie the hands and Being thus feet of the prisoner together cross-wise. p. to extort a confession. I. the right thumb to the toe of the left foot and vice versa. penetrating the mouth. who prided himself upon the title of "Witch-finder General. 237. on their backs. in the seventeenth century was Matthew Hopkins. The hoop was fastened to the wall at the back of the head." vol.

whether or not the prisoners had actually bewitched her.*" When these two old women went to a shop to purchase herring. 248. Samuel Pacey. 253. her aunt. first. to be bnrned at the stake in St.60 WITCHCEAPT AND SOECEKY. The daughter of the owner of the store was afflicted with epilepsy and the women were charged with having bewitched her.*^ ""II. offered to establish this imaginary crime. as an the witness upon Witchcraft. learned Sir from the Mathew evidence. when others than the ac- cused persons touched her. secondly. He personally told the jury that he had no doubt of the fact that witches Hale charged the jury to ascertain existed. upon the most flimsy kind of proof. whether or not the persons charged were actually bewitched and if so. her imagination and nervousness was such that she was thrown into a fit and this was received as proof positive of her bewitchment and the fact that she also was thrown into a fit. ." p. 254. and they resented it. =^II. She was blindfolded and when they touched her. when similarly blind-folded. Mackay's "Memoirs of Delusions. Upon expert the evidence of Margaret Arnold. condemned Amy Duny and Eose Cullender. first because the Scriptures affirmed it and. Mackay's "Memoirs of Delusions. Edmondsbury. their ugliness caused them to be insulted. In 1664 the venerable Sir Mathew Hale. The jury promptly returned a verdict of guilty and the girl and her father called the next morning to see Sir Mathew Hale and advised him that the complete recovery of the girl followed within a half hour after the verdict of conviction against the prisoners. and Thomas Brown. because the laws of the country recognized it." pp. the girl's father. was held incompetent as evidence in their favor.

Italy. by this time and this rugged and astute lawyer made such an appeal to the jury. in twenty-nine burnings.WITCHCRAPT AND SOECEET. "the prettiest girl In the town. before her execution.*^ were ac- Jane Wenham. 61 Eleven cases of witchcraft were tried before CMefJustice Holt. in the criminal courts Spain." p. known as the "Witch of Walkerne. fourteen vicars. 255. were tried and convicted of sorcery. because they had washed their stockings and made a lather of soap and raised a storm and for this terrible offense they were both hanged. in Wiirzburg." thirty-two vagrants and a large number of little innocent children." was tried and convicted before Lord Chief-Justice Powell. Mackay's "Memoirs of Delusions. Scotland and Germany. Of the list there were three play-actors. in each case. Mackay's "Memoirs " II. who were guilty of no offense or crime other than that of living in to six people at a burning. but sentiment was changing toward this offense. While this hideous record of blood and murder. during the seventeenth century. that all the defendants quitted. old and young. the wife. As an illustration of this mad carnival of death.** ^ Ante idem. the ungainly and the comely.^^ In 1716. between 1694 and 1701. during of this century. sons and daughter of the councillor Stolzenberg and Gobel Babelin. " II. one hundred and fifty-seven people were burned. of Delusions. at Huntingdon. was being recorded in England. but she was pardoned. all alike suffered in this unholy crusade. a woman and her daughter only nine years old. alone In the two years following 1627. an apothecary's wife and daughter. averaging from five The wealthy and the paupers. 258. . upon the most fanciful and ridiculous kind of evidence. however. three councilmen. in 1711. a similar record was being written. four innkeepers. the burgomaster's lady." p. Thousands of innocent people lost their lives under this charge In these countries. in the name of the law.

Maokay's "Memoirs of Delusions.^'^ The good William Penn." p. in the middle of the seventeenth century and supposed criminals were arrested in such numbers that the prisons were not large enough to hold them. during which time.'^ Under the early statutes of New York and Pennsylvania. ." at the trial of two Swedish women." "XJpham's "Witchcraft in Outline. who fled from similar persecution in England. But craft this was the last judicial execution for witch- in England.") =' (Hauler's II. fourteen of them being women. Nevin's "Witchcraft In Salem Village. 1692. who were arraigned for witchcraft. — until was repealed. James and prey its votaries —the fever spread across colonists also fell a the ocean and the New England to the superstition. Massachusetts. prisoners were charged with the crime. The fear of witchcraft and sorcery seized the multitudes in the United States. "Acta et Scripta Magica.62 WITCHCEAPT AND SORCERY. 258. nineteen supposed witches were hung. prepared and the flint them.^* The funeral pile had been and tinder were all ready to burn acquitted of the a period wlien their innocence was considered a crime." " Upham's "Witchcraft in Outline. lasted from February until September. 6.*^ delirium of witchcraft was raging in Euits victims numbered tens of thousands millions. "Upham's "Salem Witchcraft. presided in the ' ' City of Brotherly Love. in Outline". although many I. 6. witchcraft was a capital offense." p. when the statute of While the rope. between this date and the year 1736. The persecutions at Salem. but fortunately they were charge.

chusetts. Moore's "History of Witchcraft in Massachusetts. Massachusetts. Quaker. who had worked themselves into a state of nervous ex- citement. Mrs.*" The Salem persecutions began with the delusions a party of young girls. the daughter of the Mary Walcott." ." 1659-1660. Abigail Williams. during the last half of the seventeenth century. aged eleven. such as hiding in holes. Is presented in "Two Letters of William Dyer. and Goody Glover was executed at the same place. Mercy Lewis. in 1656. in June.** The history of the persecutions at Salem. as well. of be- who imagined they were witched. for witchcraft. crawling under chairs. "Upham's "Salem Witchcraft". in 1688. at that place. Elizabeth Hubbard and several other girls furnished the evidence upon which these persecutions were begun. in Connecticut. assuming odd postures ^The trial of Mary Dyer. her cousin. the daughter of Eev. of Springfield. 63 In Connecticut and Massachusetts. After reading of witchcraft and magic. Ann Putnam.WITCHCKAFT AND SOKCEET. aged nine. but upon the Common Law of England. parish clerk. Samuel Parris. 1648 Mary Parsons. A few trials six persons occurred in Virginia and Maryland and were hung. in 1651. Ann Hibbins was executed in Boston. these children. began to cut queer antics. Margaret Jones was executed for witchcraft. in Boston. has furnished the basis for several books. was tried and convicted. Nevin's "Witclicraft In Salem". the penalty for witchcraft was death and the laws based not only upon the Mosaic of these states were code. pre- senting the harrowing details of the trial of the several victims of the crusade against the delusion of witchcraft. aged twelve. Massa. Elizabeth Parris.

*^ Tituba. and uttering loud and incoherent expressions. and Mrs. . Sarah Good. in capital cases. bed-ridden and suffering from nervousness and melancholia. After having been tormented for some time. Mrs. as this was the custom according to the common law. Sarah Osburn and an Indian woman named Tituunder the license of witchcraft. On March 1692. Mrs. Os- burn. and believing her escape to lie only in the conviction of some- one else. all of which they attributed to the supernatural power exerted over them by three women of the neighborhood. the trial prisoner. Osburn being a poor unhappy woman. the Indian woman. told the children stories of evil spirits until they firmly believed in her unnatural power. at will and performed other little misdemeanors. instead of correcting them. Upham shows. and she was remanded to jail 26. Acting to the door of the witches. before Esquires John Hathorn and Jonathan Corwin.64 WITCHCRAPT AJSTD SOECERT. as Mrs. Mrs. Good having been abandoned by her husband and Mrs. as the Judge was supposed to be the counsel for the 1'. which their doting parents laid ba. as they should have done. arrested and arraigned They were unpopular and uncomely women. No counsel was allowed the prisoners. Sarah Good was first examined and denied any communion with evil spirits and affirmed her service of God. Good accused her co-prisoner. believed in witchcraft herself and had Finally the three women were for the crime of witchcraft. was begun at the meeting house in Salem. unless the Court was in doubt." pp. Osburn "Upham's "Salem Witchcraft. 25. these girls disturbed religious worship.

The Indian woman. when brought before the supposed witches. which they said the witches had pricked them with and worked upon the morbid imagination of the assembly so that the trials of the witches were little less than a burlesque. and the evidence of her husband was used against her. did not deny that the children had been bewitched. it all to the door of her co- Good and Mrs. if in prayer. 69. After this travesty of a trial. they in turn. that she sat up late at night and frequently kneeled on the hearth. this poor body and feeble woman. Osburn. to the effect that she had taken his saddle to keep him from attending church. when they bit their lips. or any knowledge of the offense charged against her by her alleged accomplice. where she was kept heavily chained. fell down and shrieked. The girls. they screamed that they were pinched." pp. she was again committed to prison. when she was examined. Nevin's "Witchcraft Salem. when interrogated by pompous oracles of the law." 46. in their excitement if the pris. they produced pins. 65 was brought before the the court. could only protest her innocence and deny any communion with evil spirits. 1692. from March 7.*^ Martha Corey was arrested on the 19' Of March. 45. . her innocent soul being thus forever released from the unnatural and inhuman aflQiction heaped upon her body by her fellow-beings. until May 10'.WITCHCEAFT AND SOKCEKY. but she laid defendants. as ^Upham's "Salem in Witclicraft. when she died. oners clasped their hands. Mrs. Frail in in her intellect. asserted that they were being bitten. 44.

withstanding the exhortations of Ms friends." has described this feeble old man. when he was over four score years of age. where to avoid the at- tainder of his blood and the forfeiture of his estate. ' Upham's "Witcticraft In Outline. and decided to then stand mute and refuse to plead and let the law take its course. poor old Giles Corey was arrested for witchcraft. William Cleeves and John Moulton. He deeded all his property to his two favorite sons-in-law." 61. this had had a fit. no doubt so worked upon his mind as to cause him to make a terrible expiation. On good woman.*3 On 1692. in his "New England Tragedies. and his case furnishes the only instance in the United States. but he determined to defy the multitude and to withhold his plea. in his determination to die the death of a martyr in an unjust cause. was adjudged and was one of the eight persons executed on April 19'." His unfriendly course toward his wife and the attitude of two of his four sons-in-law in testifying against his wife. in the supreme test. . and one cannot read the graphic and realistic account of this tragedy. Longfellow. in order to save his property for his sons-in-law and to show his courage. although he was innocent. at Salem.66 WITCHCRAFT AND SORCEET. but uttered no word that certain of afflicted Ms cattle had been and that one of their cats such evidence as guilty this. a prisoner obstinately stood mute and was "pressed to death. the 22' of September . Of course he knew that the gates of justice were closed to him and that he would be convicted. .

" . and hanged. Eose Terry Cooke. on September 19'. in the vil- lage of Salem. in her. '. but all to no avail. regularly empaneled and charged to try her for mtchcraft. in a letter dated July 23 1692. on July 19'. Her white hairs on the cruel rope Were scattered all about. who bravely suffered his body to be pressed until all life was extinct and whose soul took its flight from the open field. Willard and Mr. the frenzied popu- and she was sentenced by the Court. near the Howard street burial ground. Mr. Mr. they were finally accused and thrown in prison. He made a manly appeal for a trial at Boston.** In the case of the gentle Eebecca Nurse. she was carted to the summit of Gallows hill." when p. '° of her head. "They hanged this weary woman Like any felon stout. of miration for this grand old our own soil. by a jury. Bailey. His friends petitioned the Court. one of the girls who testified against them made a state- ment that she "must have been out " Ante idem. Mather. Moody. Allen.*^ Because John and Elizabeth Proctor had absented themselves from the meetings. "Death of Goody Nurse.WITCHCRAFT AND SORCERY.. and her case furnishes one of the most unjust instances of the "recall'of a judicial decision" and one of the grossest travesties upon justice in the history lace "recalled the decision" of any country. durings the trials for witchcraft." thus de- scribes the death of this good woman: there. addressed to Mr. 69. 1692. even after her acquittal. 67 without feelings of tlie greatest compassion and adstoic. to meet the demands of the mob. Mr.

*^ are all interesting and present the details of the most stirring tragedies the courts of justice in this country have ever enacted. 1692. in the dif- ferent languages of Europe. Joseph Grlanvil. the Jacobs family. he was convicted and executed on August 19'. 87. it she gave her evidence." pp. Sarah Wildes. as was not true. Mary Easty. Samuel Wardell and Mary of Eebecca Nurse. Nevin's "Witctcraft in Salem. 142. Susanna Martin. but nothing could stem the tide of the current of rapidly rising prejudice and resentment prevailing. . chaplain-in-ordiII. 143. Elizabeth How. for song and story. she bore a baby in prison and it was no doubt due to her pregnant condition that she too. has and philosopher and the poet and found it a fruitful source of inspiration of Dr. 253. His fearless defense of his good wife saved her life and two weeks after his death. John Williard. permit the detailed account of these various earliest times. but space in this chapter will not trials. Alice Parker. a great deal has From the been written fur- upon the subject of witchcraft and sorcery. William Eeed. Parker.*® The trials of Bridget Bishop. escaped the fury of the mob. The delusion has nished a theme for long and arduoois treatises by scientist. Ann Pudeater. Baxter. George Burroughs. so after a farcical trial.. a sister Martha Carrier and Philip and Mary English.68 WITCHCEAPT AND SORCEBT. "Upham's "Salem Witclicraft. Eev. Margaret Scott. The works nary to Charles and R." pp. in his "Certainties " Upham's "Salem Witchcraft. 70." p. divine novelist.

WITCHCRAFT AND SORCERY. in his historical essay on Witchcraft. Ye. did much spread the delusion. cloven in the and wings. The stars shot down wi' sklentin Wi' you. got a fright Ayont the lough. Each bristled hair stood like a stake. in England. was the first to strike at the very foundation of the delusion. of the 69 Works of Spirits. "De'il" aptly express the popular notion of the time when the belief in spooks and Burn's lines to the evil spirits obtained: "Ae dreary. who played fantastic . windy. as we so often see him pictured old representations. during the popularity of the superstition. a reformed Dutch clergyman. hairy sprite. with long horns. with Scot. I light. along with the sturdy ad- who defended the prisoners charged with witch- and such judges as Lord Holt. Hutchinson. did much to discourage and overcome the belief in the fallacy. also took Weier and Reginald vocates craft. like a rash-bush. he was believed to be a mere mischievous. ugly and petty spirit. near the end of the seventeenth century. 'quaick. stood in sight Wi' waving sough. like a drake. Balthazar Bekker. Before Milton's time. a skeptical view of the subject. and these men. whistling wiggs. When Away wi' an eldritch the stour. The cudgel in my nieve did shake. Among On springs ye squatter'd. was a large. quaick'. in 1718. winter night." The notion of the feet devil then was that he tail. ill-shaped. ' ' as vindications of the superto stitions of witchcraft and sorcery. mysel.

"" From the history of Demonology and Witchcraft. terrible as Hell. All these demons were at the command of any person who would barter his soul to them and his or her evil purpose was then accomplished. what seem'd his head The likeness of a kingly crown had on. Ben- Goodwin and Sir Walter Scott. Nevins.** "The other shape. Satan was now at hand. If — Fierce as ten furies. inhabited the air and had no fixed residence or abode. Lancre. 1840. demons of both sexes had existed in the world. Lecky. shape it might be call'd that shape had none Distinguishable in member. joint or limb. tricks upon humanity. For each seem'd either." in Foreign London. but Milton made of him the paragon of evil. G-arinet. hurricanes and earthquakes resulted. De Upham. son. . while in Italy and Spain. Quarterly " See article on "Demonology. and when they congregated. not merely grotesque. "Paradise Lost.70 WITCHCRAFT AND SOECERY. They increased and multiplied with wonderful rapidity. as given in the works of Bodin. Review. windstorms. Or substance might be call'd that shadow seem'd. ever since the fall of Adam. In France and England the witches were supposed to ride astride broom-sticks. Leloyer. They were supposed to delight in destroying the beauties of nature and the possessions of man and entered the bodies of individuals with their breath and caused pains and sickness and bad dreams. black it stood as night. Mackay. And shook a dreadful dart. Bekker. but no good action would be undertaken. whose power was all used for evil. Line 666. but a fiend. book ii.

" p.^^ The "Amber Witch." familiars of witch or wizard or even the latter themselves. 277. . the bat which circles round you at night. Franconia quite popular in Germany. and quiverpeopled by many terrors. when the flames brought forth shrieks from the poor wretches who were burned alive . or witchcraft. carried 71 them on his own back. who grew quite witty in his descriptions of the contortions produced by pain. himself. Amaury Talbot. a ballad entitled the "Druten Zeitung.." or "Witches Gazette" was berg. by the poet. and Jones' "Negro Myths from the Georgia Coast. being " II. were minutely described. or its soft green twilight. among the southern darkles. all may be "The bush with is ing lights. 178.^" This belief prevailed for many centuries all over Europe and in certain sections of the world the belief in witchcraft and sorcery is not entirely eradicated today . 205. Talbot says: the "Many ignorant delusions of the loup-garou. in a recent article in the London Telegraph." •" II. superstition and witchcraft lurk in all the forests and lakes of the country. as recently shown by P. in the shape of a goat." by William Meinhold. guised to do you hurt. scatter a whole town. Describing these superstitions." p. disSometimes the terror of witchcraft will And for belief in witchcraft. Canadian-French still believe in the man wolf. Mackay's "Memoirs of of Delusions. Mr. Mackay's "Memoirs of Delusions. The bird which flies in at your open door in the sunlight. vol. reigns supreme. The sufferings of the witches burned at Wiirzburg.^^ In 1627. Bruce's "Plantation Negro as a Freeman". III. Bam- and other cities and provinces of the German Empire. p. the small bushbeasts which cross your path while hunting. and in the southern portion of Nigeria. the Devil. see Journal of American Folk Lore.WITCHCBAPT AND SORCERY. but among these 'Ojje'. dark shadows.

may have they with- stood the frenzy of a wrought-up public clamor. upon the stage where super- stition and delusion alone held sway. to contemplate that the Temples were peopled by these fears of fantasy and like some of the fetishes that modern critics of our present judicial system erect in some places and that the high priests of the temples blindly followed the mad cry of the mob and laid aside the the imagination — — scales of justice to interpret the unjust ideals of an intoxicated public sentiment. the demands instead of the proper ideals of equalit}' and justice. by making earth a Hell." And it is of Justice doubly sad. beings whose lives were forfeited. to contemplate the long list of human ' ' days of knowledge. one of the most exceptional and interestfiction. in human tragedy list Europe. and in this a lesson can be learned. These jurists of the past centuries feared their recall. following only the red •flag of murder. in courts of justice. based upon the delusion of But let us draw the curtain upon this continuous enacted for two and a half centuries. if who participated in this wholesale slaughter of indi- vidual right. of Mary Schweidler. It is fortunate that only the small percent of the densely ignorant now-a-days. in the name of the law. in the early little It is sad.: 72 the WITCHCRAFT AND SOECEEY. most interesting is trial for witchcraft. ' ' by those who thus "Hoped to merit Heaven. in the extreme. ing of the books of witchcraft. cataloguing the long of judicial murders. account for the misunderstood facts and phenomena of nature by the fears and delusions of witchcraft and sorcery and that in the . of the danger of following of public sentiment.

73 progress of the race. sections resting- There are few. more deplorable episodes. if any. the delusion of witchcraft has been crowded into the dark." . Earth shifts her pole. honestly believed in the fantastical delusions and tricks of fancy that they described as actual occurrences. based upon the attainment of some popular object. Thousands of witnesses who appeared against the poor victims charged with this hated crime of witchcraft and sorcery. alone. with the sad "scope and scheme" of things. And yet 'the cruelty of things' is "You cry Which fixed mystery to your purblind upon a point in space. relentless cruelty human nature when fanned to a fever-heat of excitement by some fanatical delusion. till haply. The dreadest sound man's ear can stormy wind war and rush of Depures the stuff of human life. breeds health and strength for humankind. On the other hand. which in fact had no better foundation than their own fervid imaginations. or acting under a mistaken belief of duty.: WITCHCEAFT AND SORCERY. and Mushtari men another falling star shall see. the history of the persecutions for witchcraft show how little reliance can be placed upon the credibility of witnesses. self. in human history than that of the persecutions for witchcraft. They illustrate to what an extreme degree of will go. as disclosed by the pathetic facts of history. in connection with this subject. remote and rugged where alone the foot of civilization can find no place. the general project passes hear. it is difficult to Eegarding man's cile the beneficent recon- laws taught by the church. in the time to be. And thus the race of Being runs. by. influenced by some general excitement. the eye.

is The recall. and gives the name of good. . we find that the virtue has ever been extolled. the judiciary. in his "Babylonian and Assyrian Laws. queen of virtues.CHAPTER III. known monuments. There we read of There also we find many of the officials. That in the Justice. 80. p. They must have decided what was right when there was no written law judges upon occasion. All other virtues dwell but in the blood. As justice has always been the great interest of man. Valour without it is a common pest. Recall of Judges. Justice is tbe best.^ Speaking upon the antiquity of courts and judges. — Judge is the generic descriptive name given to one who is invested with the power of judging and deciding causes in the courts of law." c. the soul. It is generally admitted. that the stele of Manistusu the Is one a of judge. "Of all the virtues. we find that courts were constituted." says: "Partly because specific reference to judges and legal processes are not necessarily to be ex- pected in historical inscriptions. acted as Hence it may fairly be said that judges found in ancient Babylonia from time immemorial. "Babylonian and Assyrian Laws. John. were to to be which to appeal. as applied to the withdrawal of the power given a judge to decide causes. it Is impossible to decide when law-courts first came into existence. who later earliest Galzu. and partly because we do not really know which are the earliest monuments of the human race. as one of the greatest blessings of the among the earliest institutions of human race and which we have any knowledge. however. on earth. through the medium " of judges. for the distribution or enforcement of justice." Waller." (T4) v.

but ye shall hear the small as well as the great. wrest judgment. early grasped the truth that man's nature needed protection from its own impulses and passions. having learned the hard lesson from the book of human life. by a wholly disinterested guiding influence. to be effective. Moses. : . Moses said: "Ye shall not respect persons in judgment. firm in the consciousness of of a right.. 26. 23-2. rulers of thousands. further. . and that an exalted rule of conduct. '^ c. to decline. •Exodus. but every small matter Grasping. later realized. fifties. ye shall not be afraid of the face of man. who. fifteen centuries before Christ."^ Admonishing the judges. disdains. men of truth. "of the just man. in regard to being swayed in their decisions. must be enforced and interpreted. after many. even at this early day at the exalted standard." we find this old patriarch."^ at all and rulers of tens seasons. hating covetousness . rulers of hundreds. rulers of and they judged the people they judged themselves. to ' . by the fickle winds of public sentiment. commanding what was right. the hard causes they brought unto Moses. with equanimity. such as feared Grod. and made them heads over the people. c. for the judgment is God's Exodus. in the Horatian ideal. He accordingly established the ancient Israel- the administration of justice. among by choosing "able men. RECALL OP JUDGES. out of Israel. 75 The great law-giver. admonishing the judges of the Israelites ' Thou shalt not follow a multitude to do evil neither shalt thou speak in a cause. 18. ites. the frowns of a tyrant and the clamors mob.

for they understood.76 RECALL OF JUDGES. is '* ' and the cause that and I will hear it. nor to the left. and they shall shew thee the sentence of judgAnd thou shalt do according to the sentence. in the act of dispensing justice. And the man that will do presumptuously. thou shalt do thou shalt not decline from the sentence which they shall shew thee to the right hand. . * 1-17. and will not hearken unto the priest that standeth to minister there. which they of that place which the Lord shall choose. and unto the Judge that shall be in those days and inquire. even that man shall die and thou shalt put away the evil from Israel. he also warned the people of the duty of respecting the judgments of the courts. too hard for you."^ ment. . bring it unto me And not content with warning the judges of the danger of fearing the people. before the Lord thy God. and do no more presumptuously. in the act of pronouncing judgment. . According to the sentence of the law which they shall teach thee. 12. 17-9. shall shew thee and thou shalt observe to do according to all that they inform thee. in the following wise commands: "And thou shalt come unto the Priests and Levites. •Deuteronomy. or Moses did. It thus appears that the ancient Israelites appreciated known as Justice and more nearly approximated the cultivated ideal existing in more recent times. or unto the Judge. that it was the virtue indispensable. and according to the judgment which they shall tell thee. to rise superior to the popular standards of justice and equality and that the due and orderly realization of the virtue could only be Deuteronomy. And all the people shall hear and fear. for the incumbent of the judgment seat.

John's "The Oldest Code of Laws in the World. 1903- — John's "Babylonian and Assyrian Laws. the old patriarchs were in advance of the ancient Babylonians and Athenians. 55. presenting also his Code of Laws. known to history as tlie Babylonian king. in his Code." old. 1. In the oldest Code of Laws in the known world. the warrior ." god. the "judge of heaven and earth. 67. 77 realized by a proper regard and respect for the judgments of the courts when they were pronounced. after providing for the death of the man who should weave a spell or put a ban upon another man. ." . they did not seem grasp the necessity for an independent judiciary. but upon unjust grounds they permitted the recall and debasement of their wisest judges. who enriched Ur (Father Abraham's birthplace). who humbles himself before the great gods'^ this valiant one of the misty ages of long ago. as represented to us." Independent. the code of Hammurabi. — who clothed the gravestones of Malkat with green. one who recognizes the Eight and who Rules by Law. the reverent. who conquered the four quarters of the earth. C.RECALL OF JUDGES. pt. 2285 B. Vol. who who guarded Larsa and renewed Ebabbar the Shield of the land who united the scattered inhabitants of Isin. from the dark ages. King of Babylon. through the meto dium of disinterested judges. upon the black block of diorite. In this respect. for while at- tempting the distribution of justice. in the ' — fifth sec- 'New York p. Samas. firmly founded the farm of Kish the White Potent one who penetrated the secret cave of the bandits . the humble. January-March. who claimed to have received his laws from the seated sun- an Mosaic bearded king.

He caused him to be killed and flayed and the judgment-seat to be covered with his skin. John's "Babylonian and Assyrian Laws. Code of Hammurabi. one shall put him to account and he shall pay twelve-fold the penalty. and in the assembly one shall expel him from his judgment seat. or a new trial. 5. provided for the recall or recourts. but charged him. while sitting in judgment. and if a new trial were granted. A notable case of the recall of judges as late as five hundred years before Christ occurred among the Modes and Persians." p. to remember the fate of his father.: 78 tion of RECALL OP JUDGES. that if a decision for the infliction of a penalty were set aside. which could only be righted by a rehearing. This example might be resorted to by the agitators for the judicial recall. the judge had to 'Jolm's "The Oldest Code of Laws in the World. 44. and he shall not return. that judge. who boasted of their unalterable decrees. 2. which was in the said judgment. Ms Code of Laws. decided a degranted a sealed sentence. He then appointed the son of Sisamnes to be his successor. once rendered by the incumbent of the dangerous judgment-seat."* interdicted by and motions for a rehearing were thus Hammurabi. and afterwards has altered his judgment. named Sisamnes. regardless of the mistakes entering into the judgment. for the alteration of the judgment that he judged. Herodotus tells the thrilling story of the striking example furnished by King Cambyses. So unalterably opposed were the ancient Babylonians Petitions to the granting of a new trial. in his final recall of the unjust judge. . sec." p. the judge was publicly disgraced and recalled and was never allowed to sit in judgment again. moval of the judges of Ms provision by the following cision. "If a judge has judged a judgment. as a more terrible example to an unjust judge than the mere recall and degradation. and with the judges at a judgment he shall not take his seat.

it was no that the justification for the judge to be able to show to new trial was granted prevent a miscarriage of justice. or the temple of Ish- hara. . a judgment once pro- nounced was irrevocable. the strife was accordingly quieted and the judgversy. to establish a right or title by written evidence. 79 pay it twelve-fold to him from whom it was exacted and for any new trial granted by him. to send to the local judges his own de- cision of a cause. during the First Dynasty. 82. '"John's "Babylonian and Assyrian Laws. Whether the of an erroneous judgment was provided for by appeal. before God and the King. for that judge. or the agreement of the parties. were sworn. the judge was publicly deposed from his office and expelled from his seat of judgment and no longer permitted to sit with the judges." p.^ But let us look more minutely into the procedure. which the judge reversal John's "Babylonian and Assyrian Laws. or to simply send the case to them for trial. to swear to the truth. Trials were held in the great temple of Bbabbarim.RECALL OF JUDGES. Witnesses." Having ascertained where the right resided. governing the right of litigants in the da/s of Hammurabi. does not appear. According to the strict letter of the Code. it seems. at Sippara." p. it was the peculiar province of the judge to "cause them to receive judgment". for as the law reads. at least. much as it is today. where copies of his code by Hammurabi. at the temple of had been set up Merodach in Babylon. touching the contro- and documentary evidence was used. from the Code. at the temple of Sin. at Larsa. ment passed " into an irrevocable decree. 90. It was the prerogative of the King.

^ ^ imperishable conclusions of these ancient law-suits tell have come tale. "Shamash-bel-ili rabi I. the slave. and she gave him to her husband and his son. this slave was set down as a part of her marriage portion. for four years later the same people pledged him. 181. him of her.i2 ^^ to us. His wife and brother disputed the legacy. for next we find that Gaga's daughter. left a female slave. p. The judges inspected a document by which Erib-Sin had granted the slave to his wife." pensation. as own disgrace and recall." John's "Babylonian and Assyrian Laws." "Zariku was put to the oath and replied to Erib-Sin. In the next year we find him in possession of Piru. and he remained in their possession. he must not make his appeal to the judges of Babylon. Bariki-ilu. to their Ante idem. about to be married. They sold him for twenty-three sheckels to Nabu-Zer-ukin. 92. but was made to confess that he had twice run away from his master and had been many days in hiding. Zirra. after thousands of years. During the reign of Nabonidus." sues Nidnusha concerning a house 'bouglit by The judges grant him two sheckels of silTer. lost "Ilushu-abushu hired a pack-ass.80 RECALL OP JUDGES. his wife. "Ante idem. He was told that as his domicile was at Sippara. he was handed over to the great banker. without thereby working his The decision was drawn up by the scribe and placed upon a tablet. Damlktum. 5. Hammu- "Shi-lamazi sues her brothers for a field and wins her case. "Mar-ersitim . Barikiilu. so they return her to the wife. but when his mistress died. so it was adjudged that he must return to servitude. Gaga." p. attempted to establish his freedom. to Erib-Sin. The judges awarded them sixteen sheckels of silver as comApel-Sin. was pledged for twenty-eight sheckels to Ahinuri. Hammurabi. so his case was dismissed. by pretending to be the adopted son of Bal-rim-anl." murabi This was a case of the wrong venue and hence. He must have fled from his new master. Ham28. himself could not set aside. in the thirty-flfth year of Nebuchadnezzar. and a cousin." "A slave. a lack of jurisdiction over the subject-matter. Itti-Marduk-balatu. of Ardi-Sin and Silli-Ishtar and it. sealed by the judge and some of these irrevocable tablets. He was not a satisfactory pledge.

"Ante idem. but in keeping with such a mistaken standard. Sic. . is said to have been established by Cleisthenes after the expulsion of the Peisistratidae^" and the nature and object of the "Code Hammurat)i. 55. 215. Smith's Greek and Roman Antiquities. in general. or because of some alleged undemocratic performance. Aeilan. John's "Babylonian Laws. The ancient Grreeks also practiced the recall and ostracism of their most eminent judges and other powerful public officials." p." p. or the envy of citizens. by the elimination of the unskilled therefrom. "Diod. 23. 63. by removing the hand that performed an unsuccessful operation . Sec. John's "Babylonian JLiaws. recall. by granting a new trial. 229. in Greece. who. H. any considerable number of This ostracism. who incurred the ill-will of the popu- because of some unpopular decision.RECALL OF JUDGES. by punishing the incumbents of public and penalizing the members of the learned professions and vocations. lace. 225. John's "Babylonian Laws. 64. Ham- murabi. xl. xiii. to and. Sec. to right a wrong judgment was willing to admit his error to the advantage of a wronged litigant." p. V. 63. "Ante idem. Sec.^* the builder was resulting made damages from the it fall of a building he had erected^^ of this strict king. did not stop with humiliating and degrading the upright judge. who lost his neighbor's liable for all cattle or horse . 81 This recipient of the wisdom of the sun-god. rather than cultivating the higher standards of the professions. the Code of this ancient ruler of the Babylonians also punished the unsuccessful surgeon. was the policy office raise the standards of public duty.^^ by penalizing the unsuccessful veterinarian.

by reason of their wealth. then obtaining. this ipso facto removed him from office and he was obliged to leave the city of his residence within ten days from that date. but rather as a precautionary measure. but cast against "Polio. in ancient Greece."^'' from the The removal and ostracism of public officers. . official he wished The casting and enumeration of the vote was regulated and supervised by the presidents of the Senate and by the nine archons. Roman Antiquities. was as follows: A space was enclosed by barricades. for the ten tribes. to dispense with the services of those who became so powerful as to excite the fear or attract the envy of their contemporaries. or piece of earthenware. and if as many as 6000 votes against any one official was polled. is thus explained by the phil- osopher Aristotle " Democratical states used to ostracise and remove city for a definite time. does not seem to have been used as a punish- ment for any crime or particular unfitness developed by the official removed.: 82 recall. The tribesmen entered the enclosed space. with ten entrances. in Greece. or any other means of influence. number of votes him did not equal 6000 he was not removed if the total 8. those who appeared to be preeminent above their fellow citizens. the number of their friends. " Smitli's Dictionary of Greek and Banishment. on which he wrote the name of the recalled or degraded. as EECAliL OF JUDGES. by these ten official entrances. each with a shell.^* The procedure whereby judge or other public the recall or ostracism of a was accomplished. iii. sm6 non.

at- according to Plutarch. for the recall was considered as a necessary precaution to ensure absolute equality among the citizens of the various commonwealths. 865. Alcibiades.^^ " Schol. most merited the title "The Just. the proceeding came as the "earthenware scourge. who. Cimon. but when it was found that their services were indispensable to the public welfare. or divine appellation. Themistocles. we will take the case of Aristeides. " Plutarch's Lives. they were recalled to office. in Greece." There authority for the statement that the judicial integrity ability of this old and Greek patriot was so generally recognized. or ostracised. was. Aristotle. was referred to as so. Equit. in Greece. is known as "Aristeides the Just. by universal consent. As a concrete illustration of the application of the recall to the judiciary. other prominent citizens suffered Aristeides and this many degradation in Athens and other democratical states. that during the presentation of one of the tragedies of Eschylus. when one of the characters just. ' a man who "cared more man. ^ Ante idem. 83 from office. in ancient Greece. Smith's Greek and Roman Antiq. upon which the vote was cast against the removed from office. as the one Greeks. in supra. of of all to be than to appear ' all eyes were instantly turned other toward Aristeides."^" to be known By this proceeding. or piece of earthenofficial ware." and from this time on this truly royal.^® Because of the shell. .RECALL OF JUDGES. tributed to this virtuous man. some of the most distinguished men of the nation were removed. in Athens.

as given us by Plutarch was to be classed with that altruistic lot of patriots: "Who '^ cared not to be great State. he rumor that by determining and judging causes was undermining the courts of judicature and was secretly making way for a monarchy in his own so person. with his stance. or sherd and directed him to write his own name upon the shell. in the railed market-place. the jealousies it of the populace were so aroused against him that upright judge. Aristeides was approached by an illiterate citizen.84 EECALL OP JUDGES." But as they serve or save the Plutarch's Lives. necesrecall.^^ '^ Plutarch's Lives. . or polled. when the voter replied None at all. that while the voting was taking place. This remarkable distinction aroused envy against Aristeides and lated a it is reported that Themistocles circu- in private. he departed having been from his beloved Athens. neither know I the man but I am tired of hearing him everywhere called The Jiist. with uplifted hands."^^ Aristeides made no reply to the man. who handed him his ostracon. The six thousand votes. connected with the degradation ' : ' . from the history of the man. was decided to recall this Plutarch relates the pathetic circum- and ostracism of this Just Judge. praying. Without disclosing his identity. that the Athenians might never have occasion to remember Aristeides. but wrote as he directed and returned the sherd to him. sary to procure his removal. name written upon it. Aristeides asked the man if the Judge had ever done him any injury. Aristeides.

As an index to the character and uprightness of this distinguished Athenian. when the Persian king. I made false law. for favor. 85 The ostracism of Aristeides did not last for the ten years. for he sought no other gratification than that of serving his country with fidelity and honour. if. when requested. invaded Greece. you would be a bad poet. with himself represented by a figure in the temple. this virtuous judge replied: "Simonides. without resentment. by his friend.-Jli' long service as a magistrate. under the Grecian law.RECALL OF JUDGES. by popular vote. however. it is reported that before entering upon the trial of a cause in which the poet Simonides. Themistocles was another of the great citizen jurists of Athens to suffer the recall or ostracism. Aristeides returned and when the Persians were overcome he was completely reinstated in the good graces of his country- men and took a leading part in the affairs of the gov- ernment of Athens. was interested. while this ancient law obtained in Greece. for three years later. to overlook the underlying principles of the law. . of Ceos. in the consideration of the cause. when Themistocles erected his temple of Diana of Best Counsel-. if your lines ran counter to the just measure and rules of your art. nor should I be a good magistrate. '^* ' patriotic citizen in the Notwithstanding the signal and loyal services of this war with the Persians and his fin. the Athenians also became envious of him and made use ^' Plutarch's Lives. for which his punishment was decreed. Xerxes.

for: "Men did not look to the interests of the community. in Athens. in Athens. . who delighted to humble eminent men."^" The birth last person against whom this old law was en- forced at Athens. might vent some part of their rancor. of the law providing for the recall and ostracism in order to humble his eminence and authority. Smith's Dictionary of Greek and Roman ^ Plutarcli's Life of Aristeides. by popular vote. soon became mischievous. This species of recall. deemed requisite as said by Plutarch "The ostracism was instituted not so much to punish the offender. but used ostracism for party purposes.^'^ The law providing for the recall or ostracism of public officers. was Hyperbolus. for the equality in a popular government. Smith's Dictionary of Greek and Roman Antiquities. known as "Petalism" among the Syracusans.: 86 RECALL OF JUDGES. "^^ According to Aristotle. 7. for. as to mitigate and pacify the violence of the envious. by popular vote. the law providing for the recall or ostracism of public officials. as they usually did with all those whom they believed to have grown too powerful. c. p. on which "Plutarcb's Life of Themlstocles. so the law providing for ostracism or recall. by fixing this disgrace upon them. was borrowed from the Athenian law of ostracism. their own dignity had been compromised. 135. the petals or leaves of the olive. the Athenians considered that in applying this law to such a person. was discon- tinued. took its name from "Aristotle. Antiquities. and who. a demagogue of low and mean habits. by popular vote.

87 was written the name of voted to recall. Soc. or leaf-part of the olive. or those invested with judicial functions were no exception to the general rule. Preators. B. as matters of general public interest and the judicia publica of later times owed its existence to this antique custom. 452. by writing their names upon the corolla. led to the repeal of the law. by popular vote. Smitli's Dictionary of Greek and Roman Antiquities. known as "petal- ism. . but all classes of public servants were directly respon- sible to the Eoman people and were liable to be called upon.29 In the early Eoman days the custom also obtained of submitting to the people. 504. Diod.RECALL OF JUDGES. to answer to a charge which might mean banishment or death. that this law of recall known to as "petalism. did effect. however. the determination of accusations against judges and other public officers. the citizens from taking any part in public and the degeneracy and bad government which resulted from the selection of only the lowest types of demagogues for public officers." the removed officer or judge was banished for a period of five years only." i. "Niebnlir "History Rome.^* tlie person whom the citizens Under the law of the Syracusans. c. C." deterred the best qualified among affairs." by which the Syracusans voted their recall distinguished men. Historians tell us. " Smitli's Dictionary of Greek and Roman Antiquities. 87. at any time. as this was considered a sufficient length of time to humble the pride and destroy the hope of the degraded one. xl. since the not long continue in fear of this "deg- radation or humbling.

Augustus peremptorily removed four and thus reduced the number to twelve. while recognizing that the tributing or enforcing justice. constituting the great body of society. Sallust. 2. Tacitus. like the Israelites of patri- archial days. every act of a peace. 84. ii. In the early days of the Eepublic. he was put to deatli. Livy. to settle the disputes of the Romans. at the will of the Emperor. History Rome. was usually successful in his cause. if convicted of any violation of the obligations he owed to the State. as power of diswas primarily lodged a whole. Unpopular officials were frequently condemned. idem.'^ Under the empire. vi. regardless of the reason for the unpopularity.^* The crime known as Majestas. judicial magistrates. and the offender (perduejiis) was tried before the forum of public sentiment {populi judicio) and. I. idem. at any time to be preferred against the most upright public servant and the opinions of the populace were found frequently at variance with the justice of the cause. 41. . understood the impossibility of administer'°Livy. Tacitus. ^"Gaius. or its was called perduellio.88 EECALL OP JUDGES. 20. Gibbon. was apt. citi- zen which was deemed injurious to the State. corresponding to Lhe English charge of treason. with the people. and we find that while Julius Caesar had appointed sixteen. were removed. ^'Nlebuhr. History. for their opin- ions were not always shaped or controled by the most exalted standards of equality. 20. such as Preators.^^ The early Anglo-Saxons. i. while the able orator or popular citizen. Justice was not always found to be consistent with the expressed will of the multitude of Roman citizenship. Arnold.

jesty of the law was not the rule implicitly followed by all classes. by vari- able sentiments. possessing peculiar and fitness to hear and determine causes in courts of law and qualified. many centu- ries. of bringing justice man's door. Pollock and Maitland History English Law. or to approximate as nearly as might be. in the concrete. In order to insure the rendition of justice this object. this to every individual. to specially skill ted magistrates. as designed and shaped by the great Kind Alfred and other early kings. so apt to be carried away. in their collective capacity. not always consistent with the proper standards of right.EECALL OF JUDGES. to important power was committed. in England. Following the beneficent policy. 89 ing justice. by delegating the perform- ance of such important functions. as nearly as may be. accord- ing to correct standards.^^ p. 37. but before time. of compelling obedience to their mandates for the matice to all the people. in such matters. to the great unskilled mass of the people. to have such a system of courts as would speedily dispense jus- under the various conditions of courts did not have the means Anglo-Saxon society. without investigation or the understanding of correct ideals. fixed rule of life. illustrated by the old Mosaic code. based upon im- pulses. thereselec- fore. by study and training to discharge these difficult public functions with certainty and expedition. at a very early day. following King Alfred's we find that it had become the ^ I. . it home to every was the general plan of Anglo-Saxon society. in the beginning. or whims or caprices.

for many centuries a complete system of judiciture for the hearing of the ordinary causes in the realm. Reeve's History English Law. 90 RECALL OP JUDGES. From tlie early we soon find the court.^* ceive justice. 196-197. 45. presided over by the king himself and Ms chief justiciar. unless the King himself ordered the entering of a certain judgment. 272. of the Ante idem. as a natural result of such a policy. Common Pleas and the High Court of Chanto the by gradual processes of time. Pollock and Maitland's History English Law. under the Normans. 42. 1176. held in the royal palace. Pollock and Maitland's History English JL. gemot. (the dusty foot court) —which dispensed justice as speedily as dust —furnished speedy justice for small the foot^^ falls while the curia regis. p. xv. expeditious court of piepoudre. 264. whose judgments were su- preme. furnished. established by William the Conqueror. the right Of course of dispensing justice and receiving the profits thereof. where the litigant failed to get heard in the jurisdiction of his own hundred. passing to successive lords.^'^ The Court of Kings Bench. 72. with court barons. II. vol. the Court of cery. presided over by the lords of the realm. succeeded principal places among the courts of later centuries. pp. 4 Inst. regular county court and hundred alike where poor and rich were entitled to redelay. =°Coke.. I. '*I. with the establishment by Henry "* A.^® The King was his cause the fountain of justice and it was his busi- ness to see justice done. pp. of the Anglo-Saxon period. D. " I. . without price and without The from cases. soon became hereditary rights.aw. 40. 73 Memoirs de la Societe des antiquaires de Normandie.

cuits 91 cir- who divided the realm into six and afterwards followed a fixed judicial system. Reeve's History English Law. the various prerogatives of the crown were increased and it was during this precarious state of the law that the subjects were obliged to purchase the favor of the sovereign. ='I. 466. until that of King John.) " I. after the conquest. of such as know the law of the land and are disposed duly to observe it" is emphasized by a consideration of the many highhanded proceedings that the people of that long suffering country had been subjected to before (I.*" Judges were then but the servants of the king and he could move them about as mere pawns upon the chess board of his own expediency. this Great Charter of liberty was exacted from King John. that the king should only appoint "justiciaries. Reeve's History Englisli Law. the king's brother. 472. 465. 280. pp. or dismiss them. during the reign of Eichard that we William de Longchamp. the administration of Justice was still kept in the hands of the king. who was regarded as the source of all justice and law.^* From the reign of William the Conqueror.*^ "I. at a find moment's notice. Reeve's History English Law. conditions existing hefore the Barons exacted from King of the Great Charter are known to all readers of English History. was removed from his office. Pollock and Maltland's History English Law. 273. 283. delayed or denied". 204. '" I. The reasons why they stipulated that The John the various guaranties "Right shall not he sold. if they refused to do his bidding. sheriffs and bailiffs. by the intrigue of John.RECALL OF JUDGES. . Earl of Morton. p. 471. tenure of the judge.^^ order to obtain justice in the king's will of the sovereign So dependent upon the was the I. justices itinerant. Reeve's History English Law. in courts. chief justiciary and chancellor.

when a litigant who was dissatisfied with a decision or "doom. 3. 666. these knights would challenge the litigant qiiestioning the correctness of the judgment to trial by battle.*^ when the Chief Justiciarship was commited to a lawyer. the justices of the king's court proceeded to examine the record." charged the doomsman who uttered it with falsehood. Hubert de Burgh succeeded Hubert Walter and Geoffry Fitz Peter. II. sec." growing out of the practice of early Saxon days. appointed for the purpose. "Ante idem.** Until the thirteenth century the exception to a given judgment or decree of an inferior court was tested by the charge of "false judgment. " Ante idem. instead of the judge himself. the justiciarship was in abeyance. if a judgment was challenged the proceeding was what was known as that of "false judgment." The record was transferred from the inferior tribunal to the superior one by certain knights. G. Frequently. we find that from the time of Cnut. 15. to test the correctness of the decree*^ but if this were not done. which challenged the sufficiency or correctness of a record or judgment. Pollock and Maitland's History ETnglisti Law. D. . p. Pollock and Maitland's History English Law. The latter was disgraced and dismissed by the King. but he seldom sat on the bench and was removed in 1232.*^ In lieu of an appeal. "Cnut. or writ of error. ii. " II. just two years after his appointment and from this period until 1258. 2. R.92 RECALL OF JUDGES. named Stephen Segrave. until the reign of Henry I. as Chief Justiciar. or until the revolution. ii. 204. 365. in 1234. 356. Brunner. and the issue upon the legality of the finding of the lower court thus determined. 667. Edgar 1.

668. BracPI. ton. PI. 1. 93 If the King's Justices found. "Note Book. f. 667. il.*® The penalty of a mistake or "false judgment" to them meant not only a fine. Will I. viii. with this harsh rule obtaining. upon a charge of "false judgment. p. 39. p. 186. 9. Leg. were wrong. . II. by the time of Edward I.RECALL OF JUDGES. Edgar. so this was not only calculated to that "Note Book. PI. their judgment was set aside and they were amerced with a fine for having entered such a "false judgment. the hunfine dred or the manor. 67. Glanvill. a was assessed against the judge rendering the erroneous judgment and by a finding of "false judgment" a Lord lost Here was a method of recall. 1166. ill 3. for instead of removing the judge who attempted to right a wrong. if the King saw fit to so punish them. p. 15. almost as forever the right to hold a court. year 1219 we find that the justices in eyre were brought before the justices of the Court of late as the As King's Bench.*® bad as that existing under the Babylonian Empire. Pollock and Maitland's History English Law. unwilling to decide nice points of law but referring every close question to the Council for instruction. 1412. land's History English Note Book."*^ It is little wonder. II. he was removed before having been given the opportunity to get right. sec. but disgrace and the recall. history records that his justices had become extremely cautious men. Pollock and MaitLaw. 672. on an examination of the record that the judgment of the county." for having unlawfully condemned a man to death and upon examination of the record by the Council. Pollock and Maitland's History Bnglish Law. "II. Cnut.

mediocre It to hold the esteem and favor of their patron.94 RECALL OP JUDGES. . during this period of servile attachment to the Crown. were ability. it was (13 William III. judiciary were in keeping with this servile and undignified conception of the duties of for the judges. this whole period we find that the standards of the such an office. of their dignity enacted. in England. that the proper discharge of the impartial duties of the courts was consistent only with the maintenance. a Chief -Justice even. his behavior was the means of ruining his future regardless of his pure official intentions in the performance of his duty. like any other officer of the King. to be at the pleasure of the Crown. hence. 2) that the commissions of judges were to be held. they should conduct themselves uprightly. and independence. any self respecting those required of a judge. willing to prostitute their men high of but offices. but to prevent those of skill make a man when and dignity from risking the expression of their judgment. might be removed. during the mere pleasure of the king. to The strange thing that with such a system. by experience. was thus found. at the pleasure of the sovereign. not as formerly. man could be found undertake the performance of functions such as when life. c. They can only be removed from office. upon the address of both " Verplanck.*^ and during for centuries. the penalty for a mistake life forever ruin the future was such that it might and hopes of the judge is pronouncing judgment. but so long as by statute. at all times. with but few exceptions. The tenure of office of the English judge continued and under the Plantagenets and the Tudors. cautious.

or omitted.®^ but this was the full limit of his liability and for honest mistakes in the performance of his duty. 49 Tenn. with disdain the frowns of the tyrant in the performance of his official functions. judges were not liable for an honest mistake. but that he might also be free from the clamors of the populace. Pfettit. Dec. Revill vs. Graves. Rainey.EECALL OF JUDGES. 5 Johns xx. Stone vs. but they continue to hold their the commissions of judges are not terminated with the office. 2 Hawk. during their good behavior. while acting in a judicial capacity. George III. Me. Cope vs. Wallace. 46 (2 Heisk. In other words. Conway. he was exempt from indictment for any judicial act honestly done. but only for fraud or corruption. 148. 527. Augusta.). or until removed by the joint action of both houses of Parliament.®** And not only did the English law raise the incumbent of the judgment seat to a plane where he could view. 127. by the judiciary. by the English common law for judicial acts willfully and maliciously done for acts clearly in excess of his proper jurisdiction and for the wrongful exercise of a mere ministerial act. "I. Y. 26 Ala. 53 Ga. 8 Mo. 95 III. while sitting as a judge. c. 40 Am. 60 Ky. 22. notwithstanding the demise of the king. houses of Parliament and since the reign of George death of the king. 675. Hamilton vs.^ ^ The judge is criminally and civilly liable. "Yates vs. Reed vs. 23. 2.. he was responsible to no one and could be troubled only by an accusing . that the Crown even. in England. P. 314. whether honestly done or not. It has long been axiomatic. C. Gault vs. Lansing (N. . cannot interfere with the disinterested performance of its powers. Williams. 20 Mo. 282. "State vs. 131.) 197.

like other civil officers of the The first Congress. adopted the method that history had commended It to England. only by impeachment. sec. of life tenure. power of removal for actual misfeasance in was therefore provided offices in the Federal Constitu- tion that judges of the courts of the should hold their United States during good behavior and Government. upon an independent founda- tion. federal judiciary formulated by Oliver Ellsworth. S. Mr.. enacted the act. has challenged the admiration of the world.96 RECALL OF JUDGES. seeking the attainment of The patriot fathers. with the office. Con. a member tion of the convention which framed the Constitu- and afterwards Chief Justice of the Supreme Court. conscience for a mistake in the performance of a proper judicial function. . "Webster said that he was "possessed of the clearest intelligence and °'U. in the establishment of the judicial system in the United States. of other nations. in 1789. the respect paid to the majesty of the law in that country. Art. 1. III. familiar with the mistakes of the ancients and the reasons for the establishment of the judicature of England. English procedure is the pattern for the best governed countries on the earth and the decisions of her courts have come to be ideals to be followed by courts justice. Speaking of this earnest patriot.^^ first they were subject to removal. Since the placing of the English judiciary upon this high plane where the courts are wholly above and be- yond the spoils of party or the favoritism or fears of sovereignty.





deepest sagacity as well as
tegrity of character."


utmost purity and


the relative functions of the different branches

of government and the necessity for an independent
judiciary, Chief Justice Ellsworth said

"If the general legislature should, at any time, overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers if they make a law, which the Constitution does not authorize, it is void; and the judiciary power, the national judges, who, to secure their impartiality, are to he made independent, will declare it to be void. On the other hand, if the States go beyond their limits, if they make a law which is a usurpation upon the general Government, the law is void, and upright, independent judges will declare it to be so."


by the gentleman who reported the


in Con-

gress for the organization of the judicial department of the general Grovernment, demonstrates that those

who formed our Government and framed our
tion, realized


not only that the judgment seat should be dominated by "the cold neutrality of an impartial judge," but that this essential prerequisite to the administration of justice, could not be obtained by a
cringing judiciary, depending upon a vacillating public sentiment, as an index to its opinions, but would be
effectuated only through the untrammeled judgment of an independent court. Next to Oliver Ellsworth, the man most active in the establishment of our Federal Judiciary, was perhaps Alexander Hamilton, and upon the reasons for an absolutely







patriotic statesman, observed

"This independence of the judgesis equally requisite to guard the Constitution and the rights of individuals from the effects of those ill-humors which the arts of



designing men or the influence of particular conjunctures sometimes disseminate among tlie people themselves and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the Government and serious oppressions of the minor party in the community. '^*



also clearly the object of the original thirteen


remove the judiciary from



thereby establish the independence of the State Judiciary, as well as that of the

Federal Government, for Georgia alone

the Constitutions of each of the original colonies pro-

vided for an appointive judiciary.^^

bad example of providing for an

elective judiciary,


direct vote of the people, for a short term, a practice

that historians believe has caused


of the degrada-

and humiliation of the

state courts, in the past

century.^ ^

In most of the other states in the United States, the

medium was


between the


tenure and the

complete independence of the judiciary upon the one
" See Paper "The Judiciary and Public Sentiment," read before Mo. Bar. Assn. at St. Joseph, Mo., September, 1906, Proc. 24' Annual Meeting of Association. " See interesting article on "Recall of Judges," by Albert Fink, in North American Review, vol. 193, p. 680.

The Massachusetts

Bill of Rights, adopted in 1780 declares:

the right of every citizen to be tried by judges as free,


and Independent as the






Would that more of the States had followed Commonwealth of Massachusetts.
in 1812, set the

this lead of the Great

"'Upon this subject. Dr. Fiske observed: "It was Georgia that, bad example of electing judges for short terms by the people, a practice which is responsible for much of the degradation that courts have suffered in many of our states and which will have to be abandoned before a proper administration of justice can ever be secured."



hand, and the recall and disgrace of the judge, without
the formality of a

upon the




was probranch

vided for the election of judges, for short terms of

subject to

impeachment by the


of Government, in cases of misfeasance in


In one state alone was the English method adopted of appointiag the judges for life, or during good behavior, although four other states have the appointive


it ig

not strange that in this one state


find the strongest state court in the

United States

and the one whose judgments are received by the
of respect.^^

ous courts of the other states with the highest degree


both the Federal and State Constitutions, in the

United States, the judiciary has always been regarded as an equal and co-ordinate branch of government, with
the legislative and executive.

was accordingly


within the past century, that neither the President nor
the Governor could remove a judge, during the term of

for which he


elected or appointed,^^ but the

only way to remove or recall a judge, was by impeachment for criminal or corrupt conduct.*"
It is thus a serious question

whether the experience
states, of selecting

of the past century, in the United States, has vindicated

method followed

in so


Thorpe's American Charters, Constitutions and Organic Laws. "Massachusetts and New Hampshire judges are appointed and hold during good behavior, but in New Hampshire the judge Is subject to recall by the Legislature and on four different occasions, judges have been removed in that state by this method. "United States vs. Guthrie, 58 U. S. (17 How.) 284; State, ex rel, Vail, vs. Draper, 48 Mo. 213. ""Evans vs. Foster, 1 N. H. 374; McDowell vs. VanDusen, 12
Johns. 356.



judges, for a moderate term, by an elective system,
subject to


impeacbment for positive misfeasance in protests, other than the growing demand

for a popular recall of judges,
directly traced to this


be directly or in-

method of selecting judges and as the demands and protests come from states where
the tenure to
office is

for the shorter terms,



that this general policy,

when applied

to the judiciary,

condemned both by the examples of history and the practice and experience of the past century, in the
United States.


is little

doubt but that the great Chief Justice

Marshall would have been recalled, after his decision

Aaron Burr, for by popular vote had then obtaiaed, in the United States. The power of Jefferson's administration was used, unsparingly, to obtain Burr's conviction, and he was already convicted in the forum of public sentiment, for the populace believed him guilty. The Chief Justice, however, firm ia the
against the Government, in the trial of
treason, if the recall of judges

consciousness of right, with the true judicial poise, disdained, with equanimity, the clamor of the populace

and refused

to sacrifice the individual, to

appease the

public wrath.*

No wonder

that through the genius of

this patriot, the

Court he presided over was "placed

upon a pedestal of imperishable granite and has become the admiration of the publicists throughout the
civilized world. ""^

From Address

delivered by Judge Jolm F. Philips, December Omalia Club, Omaha, Nebraska, upon the "Judicial



^ Ante idem. The great Wirt was asked, after the Burr trial: did you not tell Judge Marshall that the people of America








If such a system had then obtained, the country would have been denied the genius and ability of this just man, for he would never have been responsible to

the fickle flames of a vacillating public sentiment for the
correctness of his opinions.

Addressing himself upon

the necessity for an absolutely independent judiciary,

Chief Justice Marshall said

" It is to the last degree important that he should be rendered perfectly and completely independent with nothing to control him but God and his conscience."
is it not,

that the opinions of our patriot

fathers should so nearly approach the views of the

patriarchs of the Mosaic period, upon the qualifications
of the judge, for they too, believed that the courts

should be presided over by "able


out of Israel,

such as feared



of truth, hating covetousness"

and when appointed to judge between the alleged rights of the ancient Hebrews, they were admonished by the




shall not be afraid of the face

of man, for the judgment


Eight well did Moses warn the ancient judges of the
Israelites against the fear of


in the prerogative of

the judgment seat, for public sentiment has ever proven

variable and the proper and just ideals do not always

govern the multitude. We have seen them to-day cry Hosanna and to-morrow Crucify Him. And since
* '






demanded a conviction?" And his reply showed not only the highminded, professional gentleman that he was, but the patriotic citizen as well. It was: "Tell him that? I would as soon have gone to Herschel and told him that the people of America insisted that the moon had horns as a reason why he should draw her with them."



the Nazarene to the multitude, because

day when Pilate released Barabas and delivered it was popular for him to do so, the judge who feared "the face of man" has been deemed unworthy of the trust and dignity of the judgment seat. The millions burned at the stake, during the witchcraft craze, in Europe, were convicted before judges whose independence had not been established by the laws of the realm and they simply followed the expressed will of the multitude in the act of pronouncing

In our own country, during the spread of this delusion, in Salem, Massachusetts, before the courts


presided over by judges appointed for
craft in less than one year,


there were

nineteen innocent persons burned or hanged for witch-

and of these fourteen were

women.*^ In the case of the gentle Eebecca Nurse, hanged on
jury, because the people

by a demanded her blood, and a subservient judiciary bowed in humble submission to the vox populi, we find one of the most unjust instances
G-allows Hill, on July 19, 1692, after her acquittal

of the "recall of judicial decisions" in the history of

any country and one of the grossest travesties upon
justice that has been produced.®®

The fear

of the recall of judges, in France, during

the provisional Eepublic, following the French Eevolu-

caused the judges to send a poor weak
his "Life of



"Dr. Sprenger, in


says 9,000,000 were

"Upham's "Salem Witchcraft
in Salem Village."


Nevln's "Witchcraft

™Upham's "Salem Witchcraft

in Outline."



the guillotine, because she possessed the foibles of her

sex and the flower of the aristocracy of the country-

was sent innocent to their death, because a wrought up multitude demanded their slaughter. Oh, for the glory of an independent judiciary, in such a crisis and what a valuable lesson history affords against the precedents made by public sentiment. The courts alone protect the rights of the minority, for the legislative and executive are subservient to the
expressed will of the majority.

In the courts, however,

the property of the rich and the poor alike



the might of the powerful

and the

will of the

majority, because the law of the land, in recognition of the right of the minority to enjoy
erty, in this free land of ours,


and prop-

has provided that no

property can be taken, however popular

might be to

without just compensation, after a

upon due


But when the judges were but the

servants of the majority, of course the wishes of the

majority controlled them, hence the necessity of making them independent of both the majority and minority.


vote, in

have seen how the recall of judges by popular Babylon and Greece weakened and destroyed

their independence

and made them subservient

tools of

the popular and great leaders of the majority; that in

time the respect of the community for the judges so situated was completely destroyed and that the fear of
humiliation and disgrace prevented gentleman of dignity and ability from seeking such a precarious place

and the whole and deranged.

judicial system

was thereby perverted

" Mr. North American Review. vol. confidently asserts that the United States Supreme Court ought to hold the judicial recall. we have the valuable testimony of Aristotle who said:*^ "Those who have any complaints to bring against the magistrates say: 'Let the people he judges'. for where the laws have no authority there is no constitution. 690. in the United States. shall the land-marks of the fathers and the light-houses. ' The framers of our constitution were familiar with the experiments of ancient Greece and the mistakes of the early Anglo-Saxons. 193. guaranteed by this immortal document. p. be torn away? Are the secrets of the old dooms day books of the Anglo-Saxons.' 104 RECALL OF JUDGES. Brown. and this tion guarantees to ' ' is why the Constitu- every state in the union a Eepubli- can form of government. vol. planted upon the shoals upon which other ships of state have floundered. of the Syracusans. Such a democracy is fairly open to the objection that it is not a constitution at all. to be adopted in the United States. p. in the twentieth century ?«» If the day shall ever come. because a denial of the Republican form of Government. In his interesting paper before the Minnesota Bar Association. 673. in the United States as contrary to the Federal Constitution. "^^ Shall the illuminating precedents of history. "" "North American Review. Rome G. the people are too happy to accept the invitation and so the authority of every office is undermined. ever be forgotten. for decisions holding that a Republican form of Government Is one where the whole people are represented by their representatives. to be read in vain and the mistakes of the law of ostracism of the Athenians and the discarded and condemned law of petalism. . 193. Commenting upon the condition wHeh the recall of judges by popular vote brought about in Greece. when Article by Altert Pink.

RECALL OF JUDGES. Feb. all damages Club. under similiar conditions. money in- envy and divers other equations.. for the elements of personal ambition. lost his hands. favoritism. the builder. where law lifeJ" is not the rule of The statesmen of ancient Greece found that the judge could not be safely tried by political methods. resulting from a house he had built after- " See Excellent Paper of Judge John F. Philips. then the safe- guards of the Constitution. when the veterinarian paid for all the stock he could not cure. this 106 mistaken custom of the Babylonians and the an- cient Athenians shall be generally established. read at 22'. before the forum of a wrought up Nor would it be different in any other country. terest. this will cease to be a Government of law and become a mere aggregation of people. guaranteed to us by the patriot fathers will be trampled under foot. were likely to be used in passing upon the qualifications of the judge." when the standards of justice were such that the surgeon. it due course of time we would indeed have: probable that In the "Red ruin and the breaking up of laws. or artisan. and the disappointed suitor and political demagogue can gather his associates and bid the judge come down from his judgment seat to answer the excited multitude for the correctness of his judgments." . In the days of Hammurabi. when the courts were so much concerned about the trials of those supposed to "weave spells over a man" and his guilt or innocence was determined by his survival of the torrent of the "holy river. who was unsuccessful in an operation. Omaha 1912. is If such a custom generally prevailed. when arraigned public sentiment.

who. in those dark days and the pure and scholarly jurists. in a country governed by the English law. has certainly demonstrated the wisdom of an independent judiciary. when he was liable to be fined and removed for entering "a false judgment. there was the same difference in the quality of justice administered. than in England. it is reported that when ac- . in England. The behavior of the judge of the time of Cnut. for no country pays the same high regard to the majesty of the law and in none are the correct ideals in legal standards more nearly approximated. for centuries have made the ad- ministration of the law. All morality was on a par with such ideals of the exalted and brides were auctioned off by their fathers to the highest bidder and all human action was in keeping with such dark days of superstition and delusion. in England.— 106 RECALL OF JUDGES. The history of the judiciary. the admiration of the civilized world. in England. that obtained between the generally ignorant men selected to parcel out the right. then the judge who set aside a judgment was humiliated and graced and peremptorily removed from virtues like justice.''^ "It is a just source of pride to Bngllslimen that not a single lynching has occurred for three-quarters of a century. "WTien. for remuneration. Illustrative of the complete independence that for centuries has characterized the English judiciary. to that of the exalted notion of an absolutely independent judiciary. office. falling down. in all the relations of life wards action save that of the royal prerogatives —the test of human dis- was the exalted ideal of infallibility." was in strict accord with the low standards of justice then obtaining and from this degraded position of the judiciary.

costed by King James I. such as the English judiciary. race." Percy's Anecdotes on Justice. so many . however. its supreme. 107 One does not have feel become an Anglo-Maniac to a just pride in the stability and perfection of an to institution. can but revere the approximais an ideal where institution." space has forbidden that we should do more than merely touch upon the centuries as mile-stones. antiquated and con- In the consideration of this demned known as "Judicial Eecall. seems strange that in the evolution of the cultivated ideals of our twentieth century amid the civilization. of our states would seemingly re- fuse to profit by the mistakes in the Leges Barbarorum of the dark ages that they would apparently turn aside from the sad picture of the early struggle for law and defying the axiom that we can but "judge the future by the past of man" ^indulge the vain hope of — — utilizing the all popular recall of judges as a panacea for the social evils of modern times. for reign all who make law a tion of rule of life. and asked how he expected to decide a given case. . Sir Edward Coke.RECALL OF JUDGES. then Lord Chief Justice of England replied: "When that case shall come before me. I will decide it as a good judge ought to decide it. pending in his court. in hurrying through the ages. because they profited by the record which history recorded of the stranded wrecks of states upon the shores of time. profiting by the accumulated wisdom of the past. it From the facts of history presented. in accordance with the law and the evidence. bottomed upon the solid foundation of constitutional principles. The patriot fathers. sufficiently enduring to withstand the most tempestuous seas of partisan politics. builded an edifice in this free land of ours.

108 RECALL OP JUDGES. they may incur the everlasting condemnation of the citizens of succeeding commonwealths. with rough hands. from the sacred altar. Many a hearth-stone in this and future ages will need the protection guaranteed by the fundamental principle of government. are making right and wrong for succeeding ages and by tampering with the institutions that time has approved. ple for over a century . which perpetuates the independence of the judicial department and the statesmen of the present age. without thinking of the permanence of their work. fathers and their children have occupied this tem- Our and we should have a care how we undermine the walls or remove the high priest of our liberties.

ites: Goliah challenged the Israel- "Choose you a man for you." Nellson's "Trial by Combat. sometimes called "wager it. sec. 1. law of ments. before society bad developed tbe standards of our present civilization. tbe males of tbe buman species. may be traced to the most test." p. Trial by battle. Battle has always been tbe law among tbe lower animals and in tbe evolution of tbe species. Tbial by Battle. If he be able to fight with me and me. than by the display of intellectual attain- Trial by battle. Coke. ancient period. won tbe females mucb oftener tbrougb the battle. — (109) . Lyttleton.^ No bat tradition can tell us just wben first came into existence. were made to depend upon the outcome of tbe combat.^ by com"Wager of battle was a tbe trial natural accompaniment of tbe state of society existing wben men were accustomed to take tbe law into their own bands and test tbe rigbt by tbe migbt tbat could back it up. in the Sacred writ gives an analogous conmemorable battle between King David and G-oliab.CHAPTER IV." as Bouvier refers to could be claimed in appeals of felony and in certain civil cases and was of frequent use in affairs of cMvalry and bonor. > Herbert's Antiquities. of battel." or "battile. instead of the rights of individuals. and to let him come down to kill me. 130. therefore. and the destinies of nations. in barbarous nations. pp. 294. 'Neilson says: "Trial by combat came into existence no tradition knows when. 110.

17. to bring to a sucupon the grace of cessful issue. 23) states that the trial by battle was allowable upon the warranty of the combat between the Shepard King of the Israelites and the Giant of the Philistines. 2. quite seriously decides this precedent to be inconclusive. with the institution itself. ch. 8. XVII. Paterculus. . Neilson's "Trial by Combat. 5. but if I prevail against him. in the year 501. ch. 22. he dis'1 Samuel. 9. In the year 867. his contest with the giant. Caus.) The belief that the Deity in these combats. for we are when King Gundobald. and kill him. (Decret. Par. book 28. Esprit des Lois. 2. *The Mirror (C."^ And. relied upon the Grod who had saved him from the lion and delivered him from the paw of the bear. Gibbon. c. Par." p. originated told. then shall ye be our servants and serve us.) Neilson rejects the suggestion that trial by battle was divinely instituted when David. 6. that would interfere on the side of the right. 2. but Pope Nicholas I. and proclaimed that God was His battle." (II. and historian. slew the mighty man of war of the Philistines. so God to further the righteousKing David.110 TRIAL BY BATTLE.* The soldier authority for the statement that during the first half of the first century. when Quintilius Varus attempted the settlement of disputes among the Germans by law. he replied to the remonstrances of the churchmen by the argument that "The event both of national wars and private combat is directed by the judgment of God and Providence awards the victory to the juster cause. in his battle. as the principals in the relied trial by battle always ness of their cause. is but would deliver the Philistines into his hands.." the of the armies of Israel. decreed the trial by battle as an antidote to perjury. He went it to the fight in the ' ' name of the "Lord of Hosts. 38. then will we be your servants. p. as did Pope Nicholas First. 3. ' ' and he fought not with sword and spear. qu. Neilson's Trial by Combat. with his Sling.

pp. and he shows Odin. 10. how God this sentiment found firm lodgment in the breast of the Norseman. was practiced by the Eussians. obtained among the ancient Goths. of that particular tribe. Hungarians. ch. 501.^ such Neilson® refers to the traditional statement of King Frotho the Third in the misty age of Denmark. Ill all covered that their custom had been to decide controversies by single combat." in the settlement of private disputes. from the earliest It Judicial duels. one of the northern of the German clans that flourished before the subjugation of the Gauls by the the Eomans." p. that he "deemed it much fitter to contend with weapons than with words. 109. which are preserved in the Burgundian code. whose supreme of war. 115. for valor God was of his was the jewel Selden states that the decision of suits by appeal to the God of battle is said to have been invented by the Burgundi. D. ch. 1. Stiernh. but usage of times.TRIAL BY BATTLE. 4. il. Nellson.'' all was not a mere local custom was the common those warlike people.® to "Velleius Paterculus. the soul.® and this form of "searching out hidden truths. according forms of law. Germania. 10. 109. or combats by individuals. "Trial by Combat. A." p. 117." . that the first written injunc- tion of judiciary combats that we meet with is in laws of Gundibald. 'Neilson. ' Selden. c. in Sweden. 5 Herbert's "Antiquities of Inns of Court. Tacitus. I. however. ' " Bl Com. Almains and Normans. . "Trial by Combat. 7. de jure Sueon." as Selden observes. ch. 115." p. on Duels. Herbert's "Antiquities of Inns of Court. And it is true.

because it combined the physical joy of battl© with the higher ideals of an approved formal procedure. Judic. where force and superstition were a part of the habits and customs of the people.) It is rather to be accounted for by the fact that it originated in the customs of a warlike race.) " Neilson. Germany and Italy and all cases." 4 ed. D. by . upon the trial battle. at Verona. p. In other words. the trial by battle was the natural expression of the Inclinations of both ruler and subject of the period when it was established and crept into the established procedure of the period. just as naturally as did the superstitions of the past centuries. And trial by battle was recognized as a form of ordeal which obtained among the warlike German tribes from very ancient times. p. —find expression along with the gems of literature of the same and a later period. 51." Neilson's "Trial by Combat. but it was not practiced by (I." p.. 983. "Superstition and Force. E.— 112 TRIAL BY BATTLE. History records that the Emperor Otho. '"Hcnrion de Pansey. whereby the virtue known as justice was supposed to be attained. Introd. History English Law. in in order to discourage perjury in judicial trials. In speaking of the effect of chivalry.) The Burgundian and Lombard rulers. 50. 3.^" In the early feudal ages. "when knighthood was in flower. held a diet at which were assembled many lords and princes from France. A. The institution was a product of the barbarism of the time. Some historians trace the origin of trial by battle to the fact that to avoid the evil effects of this crime. Avih.^^ Chivalry has always been in the world. were brought to recognize the trial by battle. the belief in witchcraft and ghosts. Pollock and Maitland's the ancestors of the Anglo-Saxons." chivalry played no small part in the growth and development of the fixed rules governing the trial by battle. perjury became so prevalent that this procedure was resorted to (I. observed: "It reached its legal prime In the early feudal ages and enjoyed a new era of activity under the auspices of later chivalry. 1. Pollock and Maitland's History English Law. the con- vention substituted the trial by battle in lieu of the oaths or testimony of witnesses. in accordance with the natural fighting tendency of their subjects. 409. (Lea. p.

instead of by a jury. can order reparation at of this court the point of honor. . came to be gauged according to fixed and settled rules and customs was recognized. by spreading his queen to walk upon. 104. for their ladies faire. same as the court of civil proced- ure. with the progress of the race. as at the present day. be it ever recorded to the credit of the manhood of the period this same spirit was exemplified by the cloak upon the ground for his — — splendid lesson of hundreds of noble rescue the men heroically accepting the terrors of a mighty sea. "3 Cooley's Bl. Litt. but the marshalling of arms. was then the pride of the best families of the kingdom and " This is de hors the subject at hand. Com. says Black' This court of chivalry. 113 it finds expression according to the customs obtaining in the different stages of man's growth and development. And in this our twentieth century. Because fighting was then the order of the day. in the England of the middle ages. Coke. in order to women and children from a sinking ship. "Ante idem. Sir Walter Ealeigh expressed the of chivalry of that period. When trial by battle was on spirit the decline.TRIAL BY BATTLE. 261. was by individ- The Court of Honor was not a court of record and it could not imprison. "^^ The proceedings were by petition. but demonstrates that chivalry and heroism are still abroad in the land and that these virtues are confined to no particular class. and ual combat. in the olden times. knights were sacrificed by personal but combat.^^ The deeds of knighthood." the trial. stone ' : the and finally theCourt of Honor. in a summary manner. with witnesses. for the trial of affairs of honor. for.

the wager of battle was welcomed. in that the duel was not conducted according to legal rules and precedents. the the absence of law and order. in that the latter was the fighting of two persons. In this it differed from duelling. (Neilson's "Trial by Combat. Heralds and knights seconded and backed up the appeals of the principals in such encounters and the sacrifice of the individual in these mortal combats was regarded as a trifle.^^ Trial by battle was introduced into England. settled rules of law and was a recognized mode of legal procedure. but of course trial by battle was not abolished in England until the year 1819. i. at a very early day.. because of the spirit of chivalry of the times. or court of chivalry "Comyns Dig. Neilson states that private duels succeeded trial by battle. proceeded according to fixed. in In other words. The right could only be claimed in three classes of cases. e. as the only vindication of one's manhood and honor. while duelling was a crime.'" pp. trial by battle was a mode of legal procedure. therefore. compared to the preservation of the family name and honor and since his attainder and the corruption of his blood and family name depended upon his success in the combat. by William the Conqueror. In the 16' and 17' centuries. at an appointed time and place. the success in these affairs of honor.) . 328. 18. among other Norman customs. 252. military. or in the court martial. The trial by battle. but the participants took the law into their own hands.114 TEIAL BY BATTLE. just as much as was the trial by judicial proceedings. and duelling had continued for several centuries then. was just as much guarded as was the attainment of justice through the procedure of the civil courts.

C.TRIAL BY BATTLE. 115 civil. 157. namely." p." was said to title he on account of the inability of establishing one's the absence of other evidence. "Coke. or otherwise the Frenchman could swear away the charge. with oath helpers." the term being used because of the practice of calling the parties before the court. c. I. but if the Englishman accused the Frenchman. according to Norman law. 328. III. he was given the choice of this procedure.i® criminal. with his studious desire to preserve English institutions and protect Englishmen. Law.^® "Coke. and the Norman. now quite generally conceded. I. "One ordeal the Normans recognized which had no place In English law. 329. by a strict rule of justice. but as he was not accustomed to the ordeal by battle." and or upon issue joined in a writ of right. Pollock and Maltland's History Eng. at law. 331. If he preferred to avail himself of it. "2 Hawk. in case of the death of witnesses or to In the criminal practice the one exercising the right wager of battle was called the "Appellee." meaning "to call. Pollock and Maltland's History English Law. 74. the last and most solemn decision of real property ." from the French word "Appeller. . P. Russell. Forschungen. Inst. Reeve's History English Law. see. pp. or vice versa. 40. 89. 6. pp. c. is and note citing the Mirror. or honor . Litt." I. 90. "NeUson's "Trial by Combat. to Henry II. 495. in defining the procedure which should obtain if a Frenchman accused an Englishman.^^ why battle was by action allowed in "writs of The reason right. That Trial by Battle was introduced into England by tbe Norman». provided that the Englishman whom a Frenchman accused had the choice between battle and ordeal. The Englishman was thus recognized as the Norman's peer. the ordeal of battle. (Laws of William. the former had the right to compel the latter to join battle.) For reference to the trial by battle. 45. or in appeals of felony. We find that William of Normanffy.. even though the Englishman would not fight. during the reigns of William I. I. p. Crimes. 261. was required to purge himself.

that the trial at law could be fought before any judge. the weapon of the trial at law. the king. Bracton. under the writ of right and one for treason. "L^g. 189." pp. the demandant could either participate in his own behalf. sec. in his "Trial by Combat" and principal among them are. but in a trial for treason. was north and south. the duel at law was fought on foot.^" In the appeal of felony. Constable or Marshal. 16. right to stop the trial. there was no the was the position of the combatants.^^ pugilists In civil cases. or a special deputy. was the baton. p. . while in a trial for treason. it was fought on horse-back. 347. The points of difference between a trial by combat. professional were commonly employed and perjury became so common that the form of the compurgator's oath was changed to prevent the wholesale commission "Nellsotfs "Trial by Combat. since the trial itself was the judgment. 59. but in the writ of right. if he so desired. fol. Pollock and Maltland's History English Law. Hen. while that for treason. are noted by Neilson.*^ But even in the Norman days. or his representatives could stop the trial. the prosecutor was bound to combat with his own body. 188. or through the medium of his champions' services. " II. sword and spear. when battle in was vogue.116 TRIAL BT BATTLE. while the trial for treason had to be before the King. "battle did not lie" unless there was a charge of crime and at least ten shillings' worth of propoffer erty was in dispute. the forms of oath were different. in a writ of right. and ia the battle under a writ of right. 632. while for treason. it was east and west.

c. 199. 152." He then tendered his gage and pledges to the court that on the given day set. 54. however." This custom. describes the champions as appearing with shaven heads. pp. he would perform the task assigned to him. pp. to the judge. ungirt coats. in legal contemplation. he volunteered to defend it with his own body. with a penny in each i5nger. fol. Maynard's Tear Books. tendering a glove. The report of one such trial. in order that "God might give the victory to him who was ." pp. 9. 41. =«Bracton. 190.^* The commonest cause of were those urged by an "approver. 48. Select PI. (Neilson's "Trial by Combat. Bdw. it was an old religious custom. pi. "whose pardon was conditional upon his ridding the kingdom of some half dozen or more of his associates. I. (Year Book. he intervened. on "Trial by Combat. in the year 1329. 56. contain the history of many trials oc- curring during the reigns of Edward III. by his "appeals." or convicted criminal. he testified to having seen the seisin and that either he or his father saw the claimant in the possession of the land. when the bound to accept the offer. 22. the by battle obtained. 109.) originally. was a witness and it was as such that In a plea for land. 611. 57. 48.^'' Westm. not to prevent the opponent from catching hold of the hair. The champion.) While hired champions were forbidden by the law. that in Bracton's day the annual average of battles did not exceed twenty. II. 140. In the class of civil or criminal cases where the right of trial plaintiff offered battle. 21. who afterwards offered the pennies on the altar of the nearest church. or with the body of his freeman. began to decline so rapidly. Crown. It became a very common practice and Neilson gives many such contracts In his interesting and thorough book. bare legged and bare armed. "Neilson's "Trial by Combat. the the combatants to have their heads shaved. 117 battles of this crime. II. defendant was defend the charge preferred against him. 610.^* The old books custom was for indicate that in appeals of felony." pp. "when and where the court shall consider that defend he ought." p. 153. Pollock and Maitland's History English Having offered to Law. but because =^1. and Henry VI. St.TRIAL BT BATTLE. 167.

. or manager. so men of the thirteenth century kept pugilists for hire. the trial by battle in criminal cases people of England that the right of trial had become so obnoxious to the it came to be established that if a valid indictment was pending for the offense charged." Henry VI. 349. Maddox. 19. trial In discussing the by combat. and Eichard III.. 6. one of the stable Justices. pp. and the right was also denied to one "taken with the manner. As the pugilists services were quite generally used in these trials. .) I. 71. Reeve's History English Law. during the reign of Henry large sums were paid to crown officers. in finance.^^ (Maynard's Year Books. p. 311." p. ^Neilson's "Trial by Combat. " 22 Edward IV. pi. Chief Justice. 379. idem 21 of the present day. p. "37 Henry VI. 20. 329. " III. 58. in tte right. for refusal to fight. 400. 551). held that in an appeal for con- treason. sbows bow. was William of Cookham (Note Book. One of these champions was Richard of Newnham. or absence. whose Henry VI. and the same thing was true in the reign of Eichard I. The right of trial by battle was taken away in the case of an appeal for breaking the king's prison. the battle could only be had before the and marshal. 40. for the privilege of the duel.^^ During the reign of Edward III the trial by battle was discouraged by the legislation of the period and trial by jury was encouraged. p. have managers. Priscot. pp.118 TEIAL BY BATTLE. 19 IV. Neilson II.^^ In the reign of Henry "VT. 185. whose master. who conduct the combats between the champions for the wager of the ringside. by battle was denied. 58. 66. 20. whose expert services were much In demand about the year 1220.. Reeve's History English Law. Reeve's History English Law. "^^ the reigns of And during Edward V. and Needham.. 7. and for fines for wrongfully claiming the right to the duel. IV.

the tenant or defendant had to try the issue by combat. p. until the reign of for. Newcastle-onTyne. or one maimed. when the Grand Assize was and then he had his election either to try the issue by combat or by the jury trial. 4. 119 Wager of battle tions of debt. or blind. 9. or men of three coecus. in certain cases. (Ante idem. Thompson's English Mun. 214. or those blind by accident after issue joined. Clergymen were exempted from the trial by battle and by 41 III. Henry from the an trial by Charter to the City of London. on entering the field of battle cooild avoid the fight.. sexagenarii. by battle. it was no I.. the following citizens were also extrial empted from score years.*^ In civil combat. Nellson's "Trial by Combat. (Stubbs' Charters. 130.) By the Charter' of London. by praying his clergy. 468. upon issue joined in a writ of right.) Mayhem was a good ground for exemption from trial by combat. "° II. had been but seldon invoked in acand in the thirteenth century.. " Herbert's "Antiquities of Inns of Court. Bracton. 458. . an appellant." 46. Oxford and Winchester. Norwich. "Nellson's "Trial by Combat. trial upon a provided Henry II. by the Charter of London. a priest." p. ch. (Herbert's "Antiquities of the Inns Edward of Court.*^ granted exemption by battle to citizens of London. was followed by many other similar exemptions. a man of sixty or over. Glanville. was entitled to refuse the wager of battle and insist by jury. Crown Pleas. soon followed and almost every 'borough strove to procure like exemptions. 11. or peers of the realm. History. I. Pollock and Maltland's History English Law. XIV. and a woman." p. viz.) The exemption granted by Henry I.*" A generation after the Norman conquest. lame. longer allowed in this class of actions. 46.. infant. provided for by this king in this class of cases.TRIAL BY BATTLE. No." 130.

Note to Beame's Glanvllle. in corn sowed. or two carucates of land in that town. whether the defendant have not more land in that town than what is in question. the tenant may to be require the view thereof but as to this." pp. The term -was introduced into England by the Normans. to the end it may be known. and both demandant and tenant appearing again in court. the demandant setteth forth his claim in this manner: 'I do challenge against T. in the time of King Henry I.^* the defendant may recover anew and the shireeve of the county wherein the land lieth shall have a writ directed to him to send freeholders of his county to view the land. the term being taken from the French verb. or exonier. my father. . 6. after the tenant was given his election to try his writ of right either by combat. thus describes the procedure then obtaining under the rule of civU combat: "Both parties being present in court. ' ' . at the least. then he shall not be allowed any respite but if he have more. 'And this I am : . he shall and likewise have assignation of another day and. and whereof he hath taken the profits. as my right and inheritance and whereof. p. pp. at three reasonable essions. and this I am ready to try by this my freeman N. Herbert's "Antiquities of the Inns of Court.120 Grlanville/* TRIAL BY BATTLE. " An essoin is defined by Sir Edward Colte as an excuse. 115. . essonier. . and if any mischance shall befall him. . who wrote during the reign of Henry II. after three reasonable essoins. when he shall be so departed out of the court. and the demandant claiming the land in question. — "Beames Glanvllle. viz. was seised in his demesne.. or by the Grand Assize. as of fee. 41. 110. . or grandfather. then by that other person who hath seen and heard this. concomitating the view of the said land.' Or thus. 36. half a knight's fee. or after the first coronation of the King that now is. H. there is respite made. Then. and if he have not. to the value of 10s. and other commodities.

he is then obliged to defend the right of the demandant word to word as he sheweth it against him. All which essoins being made. and thrice for the person of his champion..' TRIAL BY BATTLE. either by himself or some other fitting person but note. and thenceforth not to put himself into the great assise. the plaintiff do appear in court. he may again reasonably essoins himself thrice. and to require a recognition which of them hath most ' ' right in that land. as for his own person. to defend it by combate. "And if the defender (i. The claim and demand of the demandant being thus made. he should adventure himself. after the first waging of the battle. before the combat be begun. as they rightly ought to be. after the combat waged. . the champ'ion) shall happen to be vanquished. and shall never after be heard in court again for the same but whatsoever things shall be determined by combat in . that if at any time he should hear of a suit for that land. and. the king. neither may he change another for him. it shall be in the choice of the tenant. it behoveth him who holdeth the land. and have his champion there in readiness to fight nor may be bring any other champion than one of those. his lord shall lose the land by him claimed. by combat for it. it is necessary that. . either to put himself upon trial for the same by combat. 121 father. unto whom Ms on his death-bed enjoined. with the profits and commodities thereof. as that which his father had seen and heard. ready to try by this my freeman. the court of our lord the king are to remain firm forever and thereupon there shall be a precept directed to . at the time of the seisin found in that fee. upon the duty wherein a son is obliged to a father. that after the combate shall be thereupon waged. e. . or to put himself upon the great assize of our lord. "And if he will defend it by combat. upon whom he did put the trial of his cause. S.

ar- rive within the lists or place of combat. 1610. The weapons allowed them are only batons. Select Pleas of Crown. Herbert's "Antiquities of the Inns of Court. "A "When the champions. GlanvlIIe. if the demandant shall prevail in the combat. but if he be overthrown by the vanquishing of his champion. "This. bare-headed. PI. a court erected for the judges of the court of common pleas. impr. p. proclamation is made for the parties and their champions. Lond. 41 Herbert's "Antiquities of Inns of "Selden. " Beames. Court. the champion of the tenant then takes his adversary by the hand and makes oath that the tenements in dispute are not the right of the demandant. Duello.: 122 TRIAL BY BATTLE. thoroughly persuaded of the truth of the cause he fights for. who attend there in their scarlet robes and also a bar is prepared for the learned Serjeants at law. and are in a coat of armour. or ought to be. then the tenant shall be acquitted from his claim without recovery by the demandant. . with red sandals. which ought to be by sun-rising. swears in the same manner that they are. bare-legged from the knee downward." 115. 115.^® as piece of ground is in due time set out of sixty feet square. enclosed with lists and on one side. so that death very seldom ensued this civil combat. 87. Pollock and Maitland's History English Law. so that each champion is. and with bare arms to the elbows. Next an oath against sorcery . who are introduced by two knights. 117. thus armed with batons. p. and the champion of the demandant then taking the other by the hand. . When the court sits. was the shireeve. 634." pp. upon issue joined upon a writ of right. '^^ ' Selden describes the ceremony governing the follows civil combat. II. that the victor shall have the land which in dispute. or staves of an ell long and a four-eoronered leather target. .

between same. that I have this day. pp.TRIAL BY BATTLE. (Glanv. and after the customary essoins. he could not afterwards resort to the assize. and he was never afterwards to be heard in a court of justice concerning the In other words. lib. and had enjoined upon him. on his death-bed. neither eat. 394. e. was based only upon evidence de visu et auditu.. c. the demandant lost his suit and the champion was never again a competent witness in a duel. evidence was either as to what he had actually seen and knew. 4. "as a royal benefit conferred on the nation. 395. or claimant.) . whose 6. During the twelfth century. the battle proceeded. as the demandant. I. and their property and rights enjoyed without ieing any longer obliged to submit to the doubtful chance of the duel. drank. lib. or the tenant himself was conquered. the duel or battle was a method of trial generally in vogue. (Glanv. by the prince in his clemency. 2. 5. If the champion of the demandant was conquered. Reeve's History Bng. by the faith that a son owed to a father. he lost the land with all the fruits and produce on it. I. or upon what his father had told him. by the advice of his nobles.) The proceeding for the recovery of land during the reign of Henry II. but the title. and preceding reigns. ye justices. lib." we find the institution of the assize guaranteed to the subjects by the king. 2. and this constitution Is perhaps the first guaranty of the c. the champions in this or a similar form: 'Here this. trial- by jury In the English law. 3. If the champion of the tenant. but must meet the issue de verbo in verbam. nor have upon me neither bone. Law. Law. or battle. The claim of the demandant. 393. (Glanv. the same parties. 4. 2. had his election to defend his title by duel. In the reign of Henry II. the final effect of a trial by battle was as conclusive as the judgment of a court of competent jurisdiction and furnished the basis for a good plea of res adjudicata in all subsequent controversies over the same land in the future. if he ever heard of any plea being urged as to the land in controversy. stone. or claimant had asserted his The demandant could not be his own champion. Reeve's History Eng. no grass nor any enchantment. either in person or by a champion. while the tenant. in a writ of right. which he was to assert. as an expedient whereby the lives and interests of his subjects might be preserved. p.) If the tenant elected to try the issue by the duel. tenant could defend himself. is not without interest. or by the proof furnished by his freeman. 5. in controversies between the Lord paramount and the tenant as to the right to the possession of real estate. 123 and enchantment is to be taken by both.

that is. 3. Britton.' . to say the truth. is deemed accurate." (Neilson's "Trial by Combat. a word of disgrace and obliquy rather than of any determinate meaning but a horrible word it indeed is. which are probably derived from this original. and not be accounted liber et legalis homo being supposed by the event to be proved foresworn. he being already in possession but if victory declares itself for either party. by pronouncing that shameful word. God his saints. whereby the law of God may be abased. Neilson complains because neither Glanville. the tenant shall prevail in his cause for it is sufficient for him to maintain his ground. I. "Selden. 6 R. 1610. the reader Is referred to Herbert's "Antiquities of the Inns of Courts. from sources consulted and for the authorities consulted. if either champion proves recreant. and the combatants are bound to fight till the stars appear ia the evening. 86. to become infamous. for forfeiting the land." and "The : Combat in criminal cases was allowed. 115. impr. for him is judgment finally given. or victory is obtained. to the vanquished champion. of his principal. he is condemned as a recreant amittere liheram legem. and if the champion of the tenant can defend himself tUl the stars appear. Bracton. or the law of the devil exalted. as a punishment to him. so help me. . nor Fleta. since. and make it a drawn battle. 124 TEIAL BY BATTLE." pp. and pronounces the horrible word of craven. or admitted as a witness in any cause. or witchcraft. describe the procedure governing the actual fighting of the duel in an English plea for land under a "writ of right. This victory may arise from the death of either of the champions. according to Selden" not only in cases of treason but "For the trial of a particular objected misdeed. battle is thus begun. hath rarely happened. Mich.) The above description of such a combat. ret. that is. Duello. sorcery." p. the whole ceremony. 117. Lond. which indeed. cognizable by the ordinary course of the common law. and therefore never to be put upon a jury. bearing a near resemblance to certain rural athletic diversions. yields.

where he is admitted to enter by the marshal himself. it is likewise permitted for the purgation of an offense against military honor. taking pledges of both parties. trial by combat. and excepteth the guantlet. the colour of their horses and the like. "Then. weapons. At the day the appellant doth appear and come to the east gate of the lists. without which the marshal's men come. The marshal doth measure their weapons and then the marshal hath a clerk ready. victual and also his council with him. together with a gauntdelivered unto the court by the appellant. to appear at the day. is called by three proclamations. if he appear not. ' ' . a long sword. which the high court of chivalry is to marshal by the law of arms. within the lists. The marshal's clerk doth enter into his register their coming. a glaive. 125 and of these the justices of the kings bench have the imposition. together with his arms. the fashion of their arms and their weapons. as to keep off the press of the people without. within the lists. on a criminal bill of challenge is. "The defendant. . for deraigning the combat. if the appellant have no witnesses to prove the matter of his appeal. "The place appointed for the combat is a hard and even ground. within forty.: TRIAL BY BATTLE. whether on horse-back or on foot. as well to attend any extraordinary accident. sixty feet in length and forty feet in breadth and without the lists are certain counter-lists. made by the marshal of the king of heralds of that province wherein the battle is deraigned. and the manner." The military form of charge was as follows "First a let. a short sword. where he attends the coming of the defendant. the marshal prefixes a day. and then is brought to a certain place. and a dagger. and to do battle between sun-rising and sun-set. who brings forth the . "Their weapons are appointed. the time of their coming. The defendant denieth the point of the bill. railed within certain lists.

pronounce these words. If the king take up the matter. 119. then. . sitting at the king's feet. claimed the wager of battle to establish The older books his innocence. do cry 'Hoe. lesses les aller et faire leur devoir."^* lists. that neither has advantage of other by weapon Third. with a high voice 'Leases les aller. is read unto them by the marshal's clerk. and the party vanquished is drawn out at a horse-tail and carried presently to execution by the marshal. they are to be put in the same posture as. Windbam. for a prin- TMs is a quotation from an old manuscript book. crucifix and a mass book.' the constable and the marshal do part them. and one party be vanquished. 287. either of other at that instant. and then they take their oaths. lesses les alter. "Coke.^® Neilson refers to the single combat between Corbis and Orsus. belonging to Edw.' "In the fight. Herbert's "Antiquities of the Inns of Court. whereupon both the appellant and defendant do take their oaths. : "Then proclamation abound in many illustrations where the appellee. Second. in case of treason. Litt. 312. enemy. that either would do his best endeavour to vanquish his . 318. "The bill of challenge of the appellant and the answer of the defendant. the constable and marshal. First. fought in the presence of " Sir Scipio. they are brought honorably out of the lists. neither having precedency before the other. Bl. See. for if they should be awarded to fight again. with some felony. and observe precisely who hath advantage or disadvantage.they were before. 131. and notes. being present. knigbt. or if the king. If the battle be performed." pp. if either of the parties do give any sign of yielding. to King Henry VIII. Comm. 4 Shars. is made at every corner of the for the clearing and voidance of the lists. that their appeal and defense is true. Marshal of tbe Camp. when charged by a formal accusation. being ready. the rails of the lists are broken down. Then the combatants.126 TRIAL BY BATTLE.

The male was handicapped. or under garment and she was accorded the privilege of manouvering around her antagonist. in pre- historic Eoman days. in such contests. sunk waist deep in the ground." p. 8. sewed in the end of the long sleeve of her shift. obtained.*" And the traditional combat. ch. The woman was allowed a paving stone." 25. the Eoman Tribune.. after his horse was killed under him. to show that the institution of trial by combat was not unknown to the Romans.TEIAL BY BATTLE. 127 cipality in Spain. by placing him in a tub. at this period. and this realistic story of the battle. drove his sword through the helmet of FloUo and" cut his head in two. If this procedure obtained today. until she found a vulnerable point of attack. II. for chivalry does not seem to have penetrated into the warlike confines of this sturdy nation. to determine who would be of the realm. at the the master siege of Paris. in some of the disgraceful controversies in ." Geoffrey of Monmouth. book I. between the Horatti and the Cur- ia tti is also cited. effect. cb. book "Geoffrey of Monmouth. on horses. Neilson's "Trial by Combat. it would have a wholesome our divorce courts. at will.** p. 21. p. ** "Neilson's "Trial by Combat.*^ Neilson notes** that in Mediaeval Germany. ch. describes the battle between King Arthur and FioUo." "Livy. "Neilson's "Trial by Combat. disputes men and women were settled by combat. Ix. at an early day. reads like some story from the works of between fiction. with one hand tied behind his back. 24. 28. 3. with fixed lances and the interesting narration of how King Arthur. al- though some notion of equalizing the contests between the weaker combatant and the stronger.

400-1. of the defendant."*^ The mandate of the Conqueror's law. is that of Bishop Wulfstan vs. Essays in Anglo-American Legal History. The battle between Henry.) The history of cases of trial by battle that were preserved. 19. during (4 ed. 59. because of the alleged cowardice of the Earl of Essex. near the Abbey. after trial by combat. convicted of treason.) 120.**' William of who. Brunner. In the year 1077. "Lea. was sadly left to wander alone and despised through the world. in the year 1163. on an island in the Thames. V. Schw. of which Lea reports who saw the trial stood ready to prove their it. 66. II. during the Welsh war of 1157. a living example of the vengeance of the Lord. Walter. 197. was exemplified. Abbot Walter." Thayer states that the earliest reference to the trial by battle in English adjudicated cases. 379. Thayer's Older Modes of Trial. among nesses the adjudicated English cases. 397. in the year 1096. "Superstition and Force. In England. Neilson's "Trial by Combat. for the offense that he had been convicted of. BigeAnglo-Normanica. prior to Glanville's time. in order to deter others from this hated offense. that the muti- lated trunk. is well attested by the history of that period. Earl of Essex and Eobert de Montford. Laws England. by combat. are to be found in Bigelow's Placita Anglo-Normanlca. The charge of treason was preferred in Parliament and the combat was adjudged. had his eyes torn out and thus bereft of his sight. Ancient p. low's Placita (Essays in Anglo-Saxon Law. Harvard Law Review. assertions regarding by "oath and battle. in the case of Eu. by this hap-hazard method. earliest reference to the trial is Perhaps the by battle.128 TRIAL BY BATTLE. 494. in precipitating a panic. "I. should remain as an evidence of his crime." . that of "Wulfthat the wit- stan vs.

. with which he soon broke the bars of steel covering the visor of Sir John's helmet and thus having the advantage.** On October la 4'." " Neilson's "Trial by Combat. 52. lond's Chronicle. in his last battle. 129 a decisive engagement in a narrow pass. when II. 14. Sir Thomas had taken the precaution to wear steel knuckles. by re- peated blows in the face.*'^ "Hobbe-the-Werwede. he punished him so severely. that Sir John was compelled to yield. at the visor.. The combatants were clad in armour. for burand he was revived and allowed to become a Monk himself.TRIAL BY BATTLE. 62. 44. De Montford was victorious in the battle which followed and though Essex made a fierce attack upon him. 43. ial His body was given to the Monks of Eeading. in fighting this duel in his presence. went down to defeat. with small bars of steel. 1350. before King Edward IH." an approver. within the bounds of the royal palace." but Hobbe soon afterwards faced another opponent and like many of our modern puglists. at Westminster. his blows were warded off and the Earl was defeated and left for dead upon the field of battle. Neilson's "Trial by Combat. much spoken of in the old books discussing trial by battle. by throwing down been his banner and giving the alarm that the king had slain. "Carlyle's "Past and Present.." book ch. Jocelin of Brakepp. p. in the fourth year of King Henry III defeated "Walter-inthe-Grove. Sir John de Visconti fought Sir Sir Thomas de Marche." pp. but their helmets were guarded. John had charged Sir Thomas with taking bribes from the infidel Turks and betraying the Christian army. Because of the compliment paid to the English King. 61.

130 Sir TRIAL BY BATTLE. 32. John Upton. the King. 210. Armour and coats of mail had been procured from Germany and Milan. The duel was fought in the presence of the king. no doubt." pp. on September 16'.** The celebrated trial between the Dukes of Hereford and Norfolk. by Combat.^° A lawyer entered the lists. the King. cheer their respective When the combatants faced each other. accused John Downe of treason. Myrick. i. Trekolowe. 225. Neilson's "Trial ""Hall. horse. on the 24' of January and thp writ. upon the charge of treason. Thomas returned to France. in the use of riors. II. 170. and be- headed. 193. in the year 1431. 275. Norfolk soon afterfol- wards died. 208. Ten thousand armed knights were attendance. 190. in his Richard 1398. for the wartreason. Hereford. of Usk. in Venice. occurred at Coventry. in Parliament. to favorites. 168. . he was tried by his brother. that Hereford would prevail. fearful. a notary. Walsingliam. but Hereford returned the lowing year to wrest the crown from the weak king and proclaim himself King Henry IV. barbed with blue and green Norfolk's horse was drapped with in crimson velvet. providing for the barriers and the making of the lists the levelling and sanding of the . Neilson's "Trial by Combat. banished both the combatants. when in attempting to accomplish the death of the king. who was the people's favorite. to prevent an affray and a large concourse of the populace attended. Hereford appealed the Duke of Norfolk of high words tending to the king's dishonor. ii. came to the lists mounted on a white velvet. Adam 131. "Galfridius le Baker. 4. made immortal by Shakespeare." pp.

was actually fought. concluded to fight the thief. in the year 1455. Whithorn was a convicted thief and battle between the armourer's The servant. ed." "IV. on January 31'. Neilson's 'Trial by Combat. Mayor of London. were unable to stand up against him and were trials by battle. (1797) p. 371. and the trunk was mutilated and the head set up on the London Bridge. 187. to save his own life. 201. Coke. ill. "Gregory.TRIAL BT BATTLE." . because of his physical prowess. before the final termination of the trial. 1447. in accordance with the custom of the period." p. Both hanged." 199. to save his life. hands and bodies and they fought with green ash staves. 385. William Catur.^^ John Davy and his master. with him. described by Shakespeare.®^ There was a fierce fight. soine of he made a number of appeals against reputwhom. face. head. Nichols' "Illiustrations of Manners. after unsuccessful contestants were clad in white sheeps leather. reported by William Gregory. 131 ground and the removal of the stones. over their legs. is fully set forth in Coke. on Littleton. with an iron ram's horn on the end. able citizens. Fisher broke his weapon early in the fight and the constable then took the approver's away too and after that they fought "teeth and nail.^* The case of Thomas Whithorn. 1817. but the king pardoned both contestants. is not without interest. 17. Littleton. ui the second part of Henry VI. The armourer's body was stripped of its armour and left upon the field of battle and the penalty of treason was inflicted. 217. three feet long. charged crime against one James Fisher. Neilson's "Trial by Combat. "" John Stowe's Survey. He finally who. 239. ch. John Stowe.

reported by Sir James Dyer^^ and also by Sir Henry Spelman. 1571.. The battle octhirteenth year of curred in Tothill-fields. in "Gregory. 475. vol. 1625). "for he was fals unto God and unto hym.) "Dyer.^^ The last trial by battle that was waged in the court of the last battles judicially fought One of common pleas at Westminster. 19 in 1638. The battle was the result of a quarrel about certain arms given by the King to Vaughan. 200.) And another in the county palatine of Durham.'® In the last English case wherein the right of battle trial was recognized. before Henry VII. A. "Jolin Stowe. 322. Paramour. part 2. 301. Nellson's "Trial by Combat.'^ occurred in the Queen Elizabeth. The fight occurred at Eichmond and resulted in the victory of Vaughan over Parker. " Afterwards a battle occurred in the court of chivalry." pp. "non sine juris consultorum perturbatione. . Coll. II. Westminster. 157. Rym. (Rushw. Campus." pp. This was the celebrated case of Lowe vs. 203." reports Sir magna Henry by Spehnan. Car. D."^* '^^ upon English soil was that between Sir James Parker and Sir Hugh Vaughan. voc. 154. The former 's spear penetrated the helmet of Sir James and cleaved his tongue from his mouth and he died in a short time from the wound inflicted. 512. in 1492. fol. "Spelman's Gloss (sm6 ^ Ante idem. 204. (Cro. 199. Fiaher finally got the thief's nose between his teeth and his cried thumbs in his eyes and he so tortured him that he craven" and was hanged. in 1631.132 TEIAIi BY BATTLE. 112. two citizens of the laboring class elected to decide their cause by the wager of battle. Nellson's "Trial by Combat.^* who was himself a witness of the trial. 102.

under circumstances suspicion of foul play. are briefly told. few.'" The facts giving rise to the appeal by Abraham ThornAshford. was drowned. was quite unusual. Thornton demanded the right of trial by battle. 133 1818. however. in April.: TRIAL BT BATTLE. be- fore the Court of King 's Bench and Lord EUenborough. but before the trial. it is the province of the courts to expound and apply. The case was that of Ashford vs. as it is the law of the land. 1818. the court held that the proceeding was proper. the case proceeded to judgment. but public sentiment murder and tried and acquitted by a was so aroused against him that the dead girl's brother. may justly exist against this mode of trial. decided that The general law of the land is in favor of the wager of battle and it is our duty to pronounce the law as it is and not as we may wish it to be whatever prejudice. not a judicial function . Mary wickshire. Thornton. and while this proceding. for the court. against Thornton. of Wardirecting ar- ton. and the court held that he was entitled to such a trial. instituted an appeal for murder against Thornton. it is none the " I. because over-looked. therefore. Upon the legality of the proceeding of trial by battle." ' ' . after a jury trial. the appeal was withdrawn and Thornton was dis- charged. not to repeal laws regularly enacted and recognized by the legislative branch of government and although an absurd law may remain unenforced. still. . That this judgment was right. Barn. the court must pronounce judgment for it. in 1817. rested for her He was jury. as the repeal of existing laws is a legislative. lawyers would question. if any. & Aid. 405.

will find copious references to such trials. felony and other ofand the manner of proceeding therein. "Stephens' History Criminal Law."^ By this statute it was enacted that "Appeals of murder. Harvard Law Rev. 67." p. note. Brunner. a law. by the good Saint Louis. or hereafter to be brought. for the reason that it often happened that in the contests between a rich man and a poor man. however. or trial be had by battle in any writ of right. p." by Thayer. until repealed by the proper department. is a mode of trial unfit to be used. in the above case. Comm. 347. and left the latter without help. Paris. have been found to be oppressive and the trial by battle. ' ' ' Trial by battle was abolished in France. in England.. in Scotland. fenses. in any suit. & Aid. Neilson's "Trial by Combat. the former hired all the champions. and it is expedient that the same should be whoUy abolished. the tenant shall not be received to wage battle. In any writ of right now depending. 405. ' Accordingly. . all appeals. Essays in Anglo-American Legal History. Barn." . in individual instances occurring at various periods during the centuries from 1100 to 1600.^* so it survived in England. Paulin. 297. "Older Modes of Trials.. in 1260. pp. 46. after it "I. 3 Shars. nor shall issue be joined. 4 idem. by the 59' George HE. that brought about the repeal of the right of trial by battle. treason. Scliw. althougli not enforced. It was the judgment of the court. V. 430. in England. M. near the close of the sixteenth century. The trial reader. in Scotland. " Grandea Chroniques de France. the act proceeded to abolish in criminal cases and. vol. 427. IV. Bl.' : ' 134 less TRIAL BY BATTLE. c. 398. p. 319. II. interested in following the many illustrations of the by combat."^ The right to a trial by battle was last recognized. 339. in Neilson's "Trial by Combat.

for the . before Charles the Great. of the trials by battle. The song of Eoland. and from the appeal. of the past centuries. resulting in the punishment of the treason of Ganelon. in the other to exist. the legal procedure of wager by battle of chivalry is truth- fully presented. was really attuned to the theme of wager by battle. according to the light then obtaining. even as the law writers of the period would reproduce the history of such a trial. as a mode European countries. should be selected as the climax of the vivid plots. certainly deepest concern for the fate of the in this struggle for justice. by the masters of poesy and interest fiction. And instead of being overdrawn. 135 of judicial proceed- had long ceased ing. such represen- tations are often but true portrayals of many of the contrete cases that have come down to us. in his pure and antique style. Chaucer. between Pinabel and Thierry. in the eleventh century. And it is little wonder that this sturdy struggle for justice. Trial by battle has ever been an interesting theme in English literature.TRIAL BY BATTLE. before Theseus. for the fall of Eoland. as litera- principals we meet with portrayed by the poets and novelists of English ture. to the conclusion of the duel. uses the trial by battle as the expression of the chivalry and knighthood shown by Palamon and Arcite. chanted at the battle of Hastings." chivalry of the age If "when knighthood was were lacking it human in this antique pro- cedure of the past as we read of fail to entertain the in the unadorned deno one can tails of the trials of the period. depicting the in flower. in their battle with their hundred chosen warriors.

: 136 TRIAL BY BATTLE. in his description of this combat. and accurately portrays the different points of law. governing the trial by battle."^' The Duke of Surrey. into the presence of the king. "face to face. as ' ' II. 180. used by Shakespeare. =°See White's "Law II." to the final conclusion of the trial. All redy to derrayne hire by bataylle.. I. in the following challenge "Lord. there is if my honor's pawn. accuser and accused. Act." pp. presented by Shakespeare in his play. Engage to the trial. in Shakespeare. is apparent from a perusal of the various plays where he introduces this method of trial.) of Hereford (after- ward King Henry and the Duke II. of is Norfolk. in aU ' ' of their habiliments of war. thou dar'st.^* That the immortal Shakespeare was familiar with the exact details of the procedure in trials by battle... by the conquering of Palamon and his knights. hy Combat. "For this full is likewise made to offer battle. "King Richard The dramatic II. quarrel between Henry. 188. . 145. From sun it to sun. Neilson's "Trial poem. Richard described by a graphic writer in Herbert's "Antiquities.^^ In King Eichard broke." pp." for full discussion of this battle. IV. "Armed for lystes. and frowning. III. love of the beautiful Emelye." as I. scenes and I. Scene. up at alle rightes. 146. a Lord offers the gage to the Duke of Aumerle."®® In the same play. from the as- sembling of the knights. brow to brow. and other scenes on "Trial by " King Richard Act. earl IV.. Thomas Mowbray and Bolingare introduced. explanation of the different legal phases presented In see.

wrongfully accused. out to the uncertain fate of the gentle falsely accused of sorcery "King Richard II. I. II. but selfish..: TRIAL BY BATTLE. pp. by the valiant and fearless.. Horner.."" battle. Sir "Walter Scott has added the zest of human inter- commonly felt for the innocent.. 229. and Act II. bat. if thou dar'st. there is my honor's pawn. and his apprentice. in Ivanhoe. and charitable. with precision. from which much as the details are given in the case this scene is actually taken by the Poet.. and the rule of Knighthood.. in I' Vernon and Bassett implore the right of trial by Henry VI. dealing with "Trial hy Battle. Scene. are set forth.. True to the faith of her fathers. III. Act V. White's "Law in Shakespeare. Scene. amorous and vacillating Brian de Bois-Guilbert. to Lord Fitzwater. Act IV. "Act I. III. "Act IV. are made to try their cause by the wage of battle. 137 in the following Eichard words in "Surrey. and lovely Eebecca. and witchcraft.'^" Edgar and his bastard brother. Scene. 232. giving the challenged one the right to decline the com- were not equal and the wronged Edgar truthfully asserts "Yet am I noble "'^^ as the adversary.* ^ and the details of the trial by between the master. Scene. it to the trial. Edmund. in II Henry VI. battle Peter. . For exposition of the ahove portions of Shakespeare's plays. in King Lear. Engage In proof whereof. Scene." see. and the trial by battle is utilized as the instrument of justice whereby the innocence of this gentle Jewess is established. "King Lear. I. if the right is adverted to. I came est. then obtaining." Sec. III. to cope withal. 191.

who hazarded his life in her defense.138 TRIAL BY BATTLE. of the goodness of her heart. in the tilt-yard of Temple siowe. whereby she invokes the preliminary delay to prepare for trial. story we can but see that the author of this humanly interesting had accurately studied the details of these trials by battle. the accused demanded her right of trial by battle. The herald opened the court and made announcement of the pending issues. but for the chivalrous conduct of Wilfred of Ivanhoe. though sick and maimed. just as such trials obtained in the courts of chivalry and honour of the period depicted. and would have been left without a champion. from her black chair. placed near the funeral pile. through the service of a champion. On the appointed day. From the time that Eebecca offers the gage of battle. in the usual manner. given by Glanville. by her tardy champion. was interrogated. as to her readiness . she is arraigned and tried for sorcery and the practice of witchcraft. as given in the older books. until the close of this interesting trial. had been taken. in the presence of the court. the court was regularly adjourned to a day certain for the trial. in "respect of lawful essoine of her body. because he fought upon the side of an unrighteous cause. against such fearful odds. assistance of Divine aid. After the evidence of the witnesses to her sorcery." The author uses the exact words. who. the details of the trial are presented. because she turns a deaf ear to the importunities of the faithless Templar. Eebecca ministers to the "wants of the peasant and then. placed his implicit faith in the righteousness of his cause and the and the wicked de Bois-Guilbert is stricken by a power from on high. The accused.

battle. which the law granted to her. occurred in the 250. upon the field of North Inch." 239. until the death of Bois-Guilbert. in "The Fair Maid by battle as of Perth. She begged the indulgence." Scott also describes to decide the destinies of the the trial used Clan Quhele and the Clan Chattan." In was. 139 for the combat. between the Clan Chattan and Clan Kay. "the judgment of God. enter into a legal trial by battle. after invoking the aid of Divine wisdom. ent pion appears in true knightly fashion at the last Her chammomcourt. actually (Neilson's "Trial by Combat. it in accordance with the superstition of the times.TEIAL BY BATTLE. because fact. on the made memorable by year 1396. 244 . in his "Black Douglas. ch. xv. as presented in the litera- "The combat Inch of Perth. '''^ ' Thackeray had also studied the procedure of trial by he introduces it into his plot in his realistic story of "Henry Esmond" and Crockett. and after gaining the recognition of the and permission to do battle for his fair principal. he throws the customary words of defiance into the very teeth of the false Bois-Guilbert and the battle proceeds." makes the Earl William and James Douglas. as a con- summation devoutly to be wished.) this great novelist. of a short delay. 3. for her deliverance. whereat the whole tribe of the Clan Quhele was annihilated in the combat with the race of the "Cat-aMountain. pronounced by the Court. assisted by the volunteer Henry WjTid. just as the law of Scotland in the fifteenth century governed such trials. Bower. it is But not the purpose of this chapter to treat ex- tensively of trials by battle. for of Avondale.

misty past. ture of England. with the generations that have crept to rest. as evidenced by the law writers of the past and illustrated by the works of poetry and fiction. but only to trace tlie rise. portraying this ancient mode of trial. . growth and decay of this mediaeval institution. which was superceded by the fairer method of jury trial and with the other barbarous customs of the dark.140 TRIAL BY BATTLE. before the dawn of our modern jurisprudence. has faded away.

to the judgment of God. 392. 63. Teial by Oedeal. Ordalia. II. or the success of certain dangerous experiments. judgment. be hurtful to him. has existed. and daal. by her husband. Trial by ordeal was tlie method used to ascertain the guilt or innocence of a person accused of crime. accused of infidelity. the Anglo-Saxon. Essays in Anglo-American Legal History. c. Ordaal. and she be defiled. (141) V." or urfheil. in the ordinary course of events. Vol. the guilt of a woman. but if he performed the part assigned to him without injury. The tests that the suspected person was subjected to were called ordeals. . and he be jealous of his wife.: CHAPTER V. I. •Thayer says: "Nothing is older.^ laid "We find that according to the "law of jealousies. meaning "primitive judgment. was determined according to this trial of ordeal. or accomplish which would. p. he was adjudged guilty.^ or judgments of God. accord- ing to his ability to perform certain results acts. from the earliest times. for it is recorded "And the spirit of jealousy come upon him. or primitive. The custom of referring disputed questions such as the guilt or innocence of a person accused of crime. among various widely separated nations and peoples. to be determined either by lot.^ If the suspected criminal was injured or killed in the performance of the act required of him. according to the "From German." down in the Mosaic code Fifteen hundred years be- fore Christ.. or if the 'Pattetta." Harvard Law Review. he was declared innocent.

as he narrates instances where Aames II. 19. This same ordeal is in use among the Africans. and become bitter.: 142 spirit of jealousy TRIAL BY ORDEAL. if not all races. but be clean. and if thou hast not gone aside to uncleanness with another.. and say unto the woman. In their excellent history of English Law. fr.. . in proof of their Innocence. and shall conceive seed. come upon Mm and he be jealous of Ms wife. 14. to determine incontinence on the part of a woman. 27. Herodotus II. V. 24. and she be not defiled. then to pass that. Men of many. If no man have lain with thee. 15.^ and the Hindus practiced Numbers. ********* . was convicted on the supposed divine judgment of the oracle.. instead of thy husband. From Herodotus it would seem that the ancient Egyptians believed in ordeals. who led a dissolute life. and have done trespass against her husband. to solve the guilt of prisoners. and her belly shall swell and her thigh shall rot. he hath made her to drink the water. man And the priest shall charge her by an oath. wi^h other divine power. And he shall cause the woman to drink the bitter water that causeth the curse and the water that causeth the curse shall enter into her. •Sophocles' Antigone. that causeth the curse . PoUoclt and Maitland say. 284. have carried the red-hot iron or performed some similar p. be thou free from this bitter water. existed the ancient Greeks. and the woman shall be a curse among her people. if she be defiled. of the Gold Coast. we must not attempt to tell it. And if the woman be not defiled. then shall she be free."* it And when shall come among J Compurgation of accused persons. of the trial by ordeal: "The history of ordeals is a long chapter in the history of mankind. by fire. 174. II. 598. that the water that causeth the curse shall enter into her and become bitter. in cases where the evidence was doubtfiul. 28. Aeschyles.) feat. 264." (Vol. then shall the bring his wife unto the priest.

and by drawing two images out of a jar. "Pattetta. 393. Ordelie. II. p. Athelstane. trial by water. by red hot iron. the trial by the cross and the test by judgment of the bier. which was the test usually applied to witches. he was considered innocent. 'Nellson's "Trial by Combat. or walked suit of through flames. by water. trial by the ordeal of fire. when cast into the water. in wMcb the images of the sun and other deities had been washed.TRIAL BY OEDEAIi. the trial of the eucharist. by 'Asiatic Researches. p. . by hot oil. 389. If the former.® carried a red hot iron in his hand. spread over known as the "trial of the waxen shirt. 143 ordeal in nine different ways." because if he was unhurt by the fire and the wax was unmelted. 1. or coals : — of fire. In trial by battle. the guilt was determined by the ability of the accused to float or sink.^ The most generally used ordeals throughout ancient Europe were Trial by battle." 'Thayer's "Older Modes of Trial. over red hot plow-shares. vol. by the cosha. the accuser and accused fought in mortal combat to determine the guilt or innocence of the suspected person^ In the trial by fire. but otherwise was adjudged guilty. the accused had to take a stone out of boiling water. ^by the balance. trial by the corsned. the accused walked bare-footed. by poison. woolen cloth. by chewing rice. in which the vanquished one was adjudged guilty.^" Where the ordeal by boiling water was used." Legal History. Essays in Anglo-American "Mackay's Delusions. by fire.^ The trial by water was either by cold or boiling water. or drinking water. clad in a wax. into which they had been thrown.

the guards protest their Innocence to Creon. with if it stuck in his throat. but In Sophocles' Antigone. Ordalie. at hazard. with their arms extended. Reeve's History English Law. 264-267.do we know counselled It. and used. God would smite the guilty.144 inserting TRIAL BY OKDEAL.^* " Pattetta. or who performed it. containing boiling if water. similar to this latter ordeal." "Ante idem. "Pattetta. of Delusions. he guilty of the offense with which he sickness or death. in the following lines: "Ready with hands to bear the red-hot iron. and the one whose hands moved first was adjudged to be the guilty one and the other the innocent." (PP. was held to be proven was charged. in the of the accused. one of which was marked with a cross. the cross If was selected. 203.^^ The test of the eucharist was chiefly applied among the monks and clergy. as deep as his wrist. nor. Ms hand into a caldron.) p.^^ In the ordeal of the cross. a priest put the corsned or hallowed cheese and bread. I. the boiling water insert his the triple ordeal so was deepened was that he had to arm as far as the elbow to get the stone.^"^ In the off a execrata. To pass through fire. "Mackay's "Memoirs . or corsned ordeal. and by the gods to swear Who That we nor did the deed. for it was believed that when they took the test. Ordalie. acquitted. with various chants mouth and imprecations and but if he swallowed it. occurred when the accused was placed before certain relics with two dice before him. of any complicity in the burial of Polynices and offer to establish their innocence by ordeal. he was freed from the judgment. A trial by lot. the accuser and accused were placed under the cross. he was otherwise was adjudged guilty.

or foam appeared in the mouth of the murdered person. the judge should cause the accused to be placed in the balance again. '0 balance. 119. Mrs. in India. was placed upon a bier. This man. construed with pious veneration and accepted literally "he that eateth and drinketh unworthily eateth and drinketh damnation to himself.. the old laws treated belong to the remotest antiquity. 146. Rishi Narada was a celebrated Hindu Sage and Lawgiver.^® According to the Institute of Narada. Vol. thou only knowest what mortals do not comprehend. supposed to have been the son of Brahma and Saraswari. II. . Lea." I. "According to Jolly." (3 ed. poison and the tests. 249. in India. 28.: TRIAL BY OEDEAL. being arraigned " Ante idem. In describing the different tests. water. the ordeal known as the judgment of the was used to determine the guilt of the accused. were considered the five divine sons. and the accused was made to touch his body.) 304. under a charge of murder. 145 And bier finally. sacred libation. the translator of this book. we find that the balance. but if none of these signs ap- peared. or the body changed position. the accused was adjudged guilty of the murder. The deceased. The ordeal of the eucharist was based upon the statement of the Apostle. pp. the most solemn ceremonies accompanied the application of the tests used in the trials by ordeal. fire. XI.^® the ordeal was used four or for five centuries before Christ. p. for determining the guilt or innocence of suspected per- From the formulas given in the Institute of Narada. he was acquitted.. India. If blood flowed. XX. the materials for the text date back many centuries before Christ and some of of. 134. "Superstition and Force. 29. Manning's "Ancient and Med. Corinthians. pp. in it is ancient days. I. said "Having adjured the balance by imprecation." Vol. supposed to have been murdered.

In the ordeal of water. Therefore. mayst thou deliver him lawfully from his perplexity. Thou only knowest what mortals : ' do not comprehend. and the accused wades into water to his waist. but if he is unburnt. has seven acvattha leaves fastened on his hands and he takes a smooth ball of red hot iron in his hands and walks slowly through the seven circles of fire and deposits the ball on the ground. was the god of the fates.' * * * Seven circles of fire. dwellest in the interior of all creatures. like a witness. with a diameter of a foot each and thirtytwo inches distant from each other were marked on the ground. the judge thus addressed the fire Thou. art the son of Brahma. of the Hindus. in the Triad. his innocence was established. The accused person eats the poison and if it easily digested. master of life and death. but otherwise is ad- judged guilty. and the man.^'' thou are persistent in truth and justice. relieve this man from sin and by thy virture become an ambrosia to him.. he is adjudged guilty. In the poison ordeal. by the balance and by fire. Therefore mayst thou deliver him lawfully from his perplexity. while another shoots an arrow. fire. In the ordeal of fire.without violent symptoms. thou art destined to show the difference between right and wrong. if he was found to be lighter or equal in weight. the judge adjures the water. after the selection of the particular poison the judge thus adjures the poison Thou. On account of thy venomous and dangerous nature. the king : ' ' " Brahma. The accused dives into the water and if he remains under while a swift runner returns the arrow. he is innocent. .' * * * If the individual increased in weight. in a cause. like a witness. he is declared innocent. he was adjudged guilty. having fasted and cleansed himself.146 TRIAL BY ORDEAL. If he is burnt. poison. is weighed upon thee. thou art the destruction of all living creatures. This man is arraigned in a cause and desires acquittal. as in the preceeding tests. the first person. the author of the Vedas and the great lawgiver and teacher of India.

Lea.) 348. which have come down to us.. within a week. for in 779. shall recognize 147 him as innocent. (3 ed. the punishment of twice seven hundred blows to the perjurer. 44. 119. II. "Superstition and Force. Lea. the ordeal of boiling water was a fixed. IV.. I. sec. 109. for it is there recorded: "Creator: he who knowingly approaches the hot. 45. Vol. at that distant day. 146. "Records of the Past. "^^ Charlemagne apparently did not place much dependence in the judicium Dei. is proved to be guilty. According to an eminent authority. while cases of greater magnitude were to be tried by the civil law of the realm. just as if one trifled with one of the settled legal processes of the present day and as perjury was then prevalent. I. sec. however. after having honored him. the judge should give the accused water in which an image of that deity to whom he is devoted." p. thrice calling out the charge.) 233. 134.. ^* Later on in his reign. Vendidad. TRIAL BY ORDEAL. pp. Pt. with composure. by his edicts of the year 806 and 809 this monarch seems to have come to "Institute Narada." VII. 156. Car. "Cap. c. golden. 5. 426 Manning's "Ancient and Mediaeval India. settled legal procedure." . and dismiss him. 249. One to whom any misfortune or calamity happens. was the penalty for using this ordeal to further perjury. hoiling water. or false swearing. by means of the ordeal.. has been bathed... containing snatches of the prehistoric law of the ancient Persians. ann. 102. or a fortnight. Mag. From the fragments of the Avesta. "Superstition and Force. hut lying to Mithra. What is the punishment for it? Then answered Ahura-Mazda: Let them strike seven hundred blows with the horse goad. 10. by his edict the trial by ordeal was to be used in the more trifling offenses. Farg. ordeals are still practiced in India.. as if speaking truth. seven hundred with the craesho-charaha." Vol." (3' ed. pp. II. at the beginning of his reign. In the ordeal of sacred libation. in private life. to Pt. 779. with presents. Sir Henry Maine's "Life and Speeches." This was the punishment affixed for using this particular ordeal for fraudulent purposes. pp.

^" seems that Charlemagne completely believed in the efficacy of the ordeal. 32. xvli. Tit. Mag. regard the ordeal with much greater favor. and endeavored to force a greater regard for the judgments in trials ordeal. ann. sees. ii.148 TRIAL BY OEDEAL. sec. 803.** because it had a tendency to bring the Christian symbol into contempt and his son. for he frequently referred to this method of trial when dividing .. "Superstition and Force. 809. Lib. Louis-le-Debonnaire. ann. sec. we are who was condemned by the Synod of Frankfort to clear himself of the suspicion of complicity in a conspiracy of treason against Charlemagne. by whom. 3. after the death of Charlemagne. Force. «L. 25. In L. Capit. the Bishop was adjudged innocent stated. Mag." p. by the year 794. cap. being unable to obtain conjurators. Lea. Longobard. the ordeals by fire and iii. sec. "Capit. 338. ^Concll. it seems. Car. at the Council of Aix-la-Cha- prohibited the continuance of the ordeal of the cross. iv. 20. p." I. Car. 298. Tit. sec. up his empire between his sons he directed that all dis- putes should be settled by ordeal. for told that in this year. II. "Superstition and . as his proxy. Lea. Lib. xxvill. the Emperor Lothair also issued a similiar edict against the use of this ordeal. had come It to entertain his own early distrust in this species of trials. 794.. after he assumed the reigns of government. 7. on the part of the subjects.*^ and was rein- Soon pelle. in the year 816. one of his vassals offered to attempt the test of of the charge the ordeal. Tit. Longobard.*^ Among the early Saxons. a certain Bishop Peter. Aqulsgran. "Caplt. iT ann. sec. vi. Iv. and on his success.

an upright. And if the trial be by water. ='Leg. to determine the issues later solved by the fathers. 201. "^^ ' ' Tacitus tion tells us that the ancestors of our Saxon fore- were addicted to divinaupon the flying of birds.^^ by which they were considered in the light of religious ceremonies "Concerning ordeal. Analecta Anglo-Brit. cap. during pagan times. li.: TRIAL BY OEDEAXi. Reeve's History English Law. except the priest. . and let there be measured nine feet from the stake unto the mark. that no man enter into the church after the fire is brought in. in a vessel of iron. p. let it be made hot. according to the measure of the foot. 147. in the name of God..^' And trial by ordeal was used by them in both civil and criminal cases. indifferens. and he who is to endergo the trial. and by the precept of our archbishops and bishops. p. that we find the procedure governing such trial. Pollock and Maitland's History English Law. . or the oaths of compurgators. Liebermann's Dr. lead. p. Sltzungsberichte der Berliner Akademie. lib. cap. =' "Ante idem. 149 water were practiced. 829. or clay. 23. we command. the neighing of horse and trial by combat. for we find that the ordale signified judicium aequum. p. brass.^* The ordeal of hot water appears in the laws of Ine. 146. ^^De Moribus Germanorum. 8. Herbert's Antiquities. justum. XXXV. and risked certain results testimony of witnesses. X. who is to come thus to judgment. 1896. I. fully covered by his Constitutions. and if it be single. Athelstan. till it boil. inter Leges Athelstan. 39.^^ who began fire his reign in the year 710. cap xxx. and the ordeals by water and had become so common by the time of King Athelstan. I. just and indifferent judgment. p. wherewith the judgment is to be made hot. let his hand be put therein after a stone or =» Herbert's Antiquities (1804).

'"Herbert's Antiquities (1804). along the church. but shall cast the iron upon the coals until the last collect afterwards it shall be put upon the ceac ( cauldron )^^ without any more words. ing but bread. On the on nothday of was to take the sacrament and swear he was not guilty of the crime imputed to him. Pollock and Maltland's History English Law. let the ordeal judgment or trial be done upon him. . to be constant at mass. p. and let them be fasting and abstain from their wives that night. the nine feet measured being distinguished by three and three. to sustain himself salt. where he shall throw down the iron and hasten to the holy altar which done. the trial he water and onions. whether it be clean or unclean where it was so sealed. 148. and the third day after viewed. to the place of trial. his. that he pay 120 s.. as also the sign of the cross and no man shall make the fire any longer than whilst the benediction beginneth. Let as many also come in on each side the judgment. I. 150 stock TRIAL BY OEDEAL. . the accused was to attend the priest. At the first mark next to the stake. . and give them the text of the holy gospel to kiss. der Berliner Sltzungsberlchte XXXV. then to his elbow and when the judgment shall be prepared. ' For three days before the offering trial. let two men be brought in on either side. . 39. The accuser with not Akadamle. note. up to his wrist but if the accusation be threefold. pp. and the priest shall sprinkle holy water on them. that it be as hot as is afore expressed. '^^ . to make experiment. . then that they pray earnestly to God that he will vouch safe to manifest the truth therein then shall the person accused drink holy water and his hand wherewith he shall carry the judgment shall be sprinkled therewith. to make his and in the interim. and so let him go. for a fine or mulct. . he shall set his right foot and at the second his left foot and thence he shall remove his right foot unto the third mark. Llebermann's 829.. and accused both came "Dr. And he who shall transgress these laws. hand shall be sealed up. 147.

'^ It is true that in Alfred's time there were trials by jury. he cent. it has been contended that the Anglo-Saxons distinguished between to open and manifest offenses and those not so public as be susceptible of proof and that trial by ordeal was only used in the latter class of crimes. 23. but "Christianity suffered not that they be by such wicked arts cleared. he his accuser. p. accordingly whether it was the simple or triple test. 203. Reeve's History Englisli Law.*^ was adjudged fire guilty. '^^ ' From this observation in the Mirror." says "A man of good repute could usually clear himself by oath. " Mirror '"I. in his "Anglo-Saxon Law. If the ordeal was by hot water. was adjudged inno- but if he was burned by the hot water. as the Mirror of Justice puts miracles of God. p. Dei. he put his wrist or arm into the boiling water. s. c. If he escaped the boiling water un- hurt.TRIAL BY OEDEAL. or swam in the cold water. 201. Reeve's History English Law.^* lem for the barbarian mind "I. his thumbs were tied to his toes and he was cast into the water. or. in doubtful cases. Reeve's History English Law. Finlason's note to I. as charged by These trials by water and were called judicium it. but circumstances of grave . and if the trial was by cold water. 151 more than twelve persons each. if one may otherwise avoid it. Pollock. 24. •" of Justice. or sank in the cold water. and it seems that trial by ordeal may have been re-established. pp. to stay any interposition or violence and the accuser then renewed his charge upon oath and the accused made his purgation on oath also. after trial by jury. 201. Leges Atlielstan. as a refuge or solution of an otherwise doughty probto solve. 202. 7.

was to be post- poned. p. perhaps the earliest reference in Anglo-Saxon laws. and from the advent of our Lord till the eighth day after twelfth be past. to it was weigh three pounds.152 TRIAL BT OEDEAL. would drive the defendant to stand Ms trial by ordeal. 6. sec. "Superstition and Force" (3 ed. Lea. of June and that all Christians. ill. 93. the hot iron weighed one pound and in the triple ordeal. "We forbid In the simple ordeal. . Essays in Anglo-American Legal History.*^ In the laws of Edward the Elder.^® The laws of Canute and Edward the Confessor also contained provisions forbidding trials by ordeal upon festivals or fasting days. until the affairs of mortals could be better ar- ranged for by the following provision :^^ ordeals and oaths" (the name law trials were called) "on feast days and ember days. 253. to the ordeal. Edward's day shall be festival all England on the fifteenth cal. for we read that the judicium Dei. p. and from Septuagesima till fifteen nights after Easter. Dunstan's. should keep them hallowed and in peace. de priscis Angl. upon these auspicious its reception. or- upon festivals or fasting days^^ and the same provision was inserted in tbe constitution made by the synod held at Eanham. treason and forgery." I. occasions. 39. Aetheldred. on the fourteenth cal. Cnut. the Dane. cap. The triple ordeal was used in the crimes of arson and murder. "Leges. Secular. under King Etheldeals were forbidden red. = Herbert's Antiquities (1804).). Aestbelstan. 7. Pursuance to the terms of a certain league. And the sages have ordained that St. iv. 58. Leg. of the Anglo-Saxons." at that time . sec. made between Edward the Elder and Guthrun. it was suspicion or previous bad character. '''Ante idem. sec. "Lamb. of April. and St. 156. as right it is.

Pollock and cap Ixv. in accordance with the solemn religious ceremony. Select Charters. known ecclesiastical pro- but the was declared to be the business of the bishop. elsewhere discussed. the conduct of the ordeal. ill. * " Ante idem. 3. Stubbs. p. as a cedure. "Legg. should be hurried to the ordeal. Edwardi. Maitland's History English Law. xxii. I. but on their accusation. Lea. 153 provided that perjured persons. as well as the power and the clergy con- tinued to approve and interject the spiritual portion of the proceeding. i. Cnutl Saecul. whereby the element used was blessed and the Divine Wisdom of Omnipotence was invoked to the conclusion of the whole proceeding. cap.. Henricl. . as the trial hy battle and they did not relish a procedure which seemed to them to be a mere superstitious formality. "Schmld.TRIAL BY OEDEAL. Lea. 450. Cnut and Henry I. Aetlielredl. "Superstition and Force" (3 ed.*" Trial by ordeal at first in the laws of carried with civil it the sanction of the priest. supra. 357. 340.^^ and similiar provisions are to be found Ethelred. in the trial by ordeal. sec. fit only for women and old or maimed men. civil and spiritual powers were to co-operate harmoniously. Gesetze. ever since the reign of Ina. until the early portion of the thirteenth century. I. cap. cap. or those once convicted should not thereafter be deemed oath. However. *"L. but the bishop pre- sided at the ceremony and regulated the course of the proceeding.*^ Under the law of "William the Conqueror. the court of the hundred making the original order by which a man was sent to the ordeal of fire or water.) sec.worthy.egg.*^ The Normans were attached to the procedure. I. p.

Foedera. in the Assize of Clarendon. II. to determine his guilt or innocence of the offense charged. p.. 577. but one accused of a capital offense was to be entitled to one of the old-world sacred processes. of Trial. 394. Essays in Anglo-American Legal History. was supposed to take the place of the false stand- ards.** In the year 1166. Harvard Law Review. the Saxons had been accustomed to the ordeal laws of Ina and later monarchs continued in the accused person effect. Tom. sec. ' ' law of the . as an outlaw. i. p. a trial. 64. and again in the year 1176.154 TRIAL BY OEDEAL. Henry 11 provided for a public mode of accusation for the capital felonies and trial by ordeal was the method of procedure fixed to determine the guilt or innocence of the person charged. 154. under the supervision of the priest or bishop. based upon the sacred ' ' LL/. Mere human testimony was not enough to send a man to the gallows. could be executed. or that of hot water and to undergo. Inae. History Englisli Law. accorded this " I. 77 Traites sur les coutumes Anglo-Normand. "Thayer "Older Modes II. The orfar "the law of the land" that one accused of a capital offense. by the proceedings of men. 152. in the Assize of Northampton. that the Laws of that Henry provided "No one '*^ ' is to be convicted of a capital crime by testimony. p. o. 650. because he had thus the' realm. 31. V. wherein the judicium Dei. But one who had not been land. defied the law of who refused the ordeal. and the and was entitled to select the ordeal of hot iron. "Leges Henri.** Prior to the thirteenth century perjury was so com- mon and it was so impossible to avoid the effects of a false oath. Hale's History Common Law. too often erected deal was then so by ordinary mortals. 5." p. Pollock and Maitland's .

that is. or the receipt of such offenders. was confined to the nobility. that in the early use of this trial.). p. an accused person. plebian. p." Lea. or of twelve free and lawful men. the hot iron ordeal. or forgery. sec. 207. Pollo6k and Maitland's History English Law. about the year 1187." self "In such — This corresponds with the statement elsewhere made. III.. in the time of had become Henry II that the law of that reign provided that any one charged before the king's justices with the crime of murder.*® . Reeve's History English Law. if he be a free Man by water. both hot and cold.) 256. who was deal of battle. by the oaths of twelve knights of the hundred. or of arson. cap. p. so far disabled that he could not test his guilt by mayhem or innocence by the or- was entitled to the ordeal of fire or water. to determine his guilt or innocence. this author of the first law book observing :" case. theft. II. were stigmatized as from an early period. could not legally be condemned. "I. while the water ordeal was' generally used among the common people. accused of minor offenses or other than the capital felonies. Lea. as trial by jury or by the oaths of witnesses was not yet an accredited method of procedure in cases of capital offense. or patricians. 650. 456. by the hot Iron. "Glanville (Beame's tr. as the red-hot iron and the diuel were patrician.Glanville tells us that in his time.TRIAL BY OEDEAL. 283. robbery. . Commonwealth. the Accused is obliged to purge himby the Ordeal." (3 ed. the ordeal so discredited. Mirror of Justice. pp. 457. "The water ordeals. 283. if he be a Rustic. 23.** By the latter part of the twelth century. "Superstition and Force. 155 and Divine belief in the infallibility of the test of or- deal. in the ab" Palgrave.

I. as well as one of his feet. after their It is related that acquittal by the ordeal of the hot iron. by ordeal.*'' This law was to remain in long as the king pleased and the effect of this law was that the accused. should submit to the water or- he failed in the experiment. he should lose one foot. sence of such knights. 152. or other felony. he was required to find pledges to answer for his good behavior. lost a limb banishment and even if acquitted. and suffered he was enter- likewise banished. at Northdeal. Reeve's History English Law. to be tried by ordeal for the violation of some law of the realm. he was then required to abjure the realm within the forty days. declared that he would try them again by the judgment of his court and would not abide by this pretended judgment of God. and this law afterwards amended. as tions due him. save what his lord might distrain to discharge his obligaeffect. if and ampton in order to make the punishment more severe and the felon also lost his right hand. with all his goods. ™ Ante idem. who had caused fifty Englishmen of good family. "which was made favorable or unfavorable. if convicted. 456. PoUock and Mait- Law. and if he were later charged with murder. was due.^" This doubt upon the justness of the by ordeal. He was also required to abjure the realm. at "I.156 TRIAL BY OEDEAL. by the Bishops. land's History English p. for such was the doubt then trial tained as to the justness of the trial by ordeal. p. to bring about the acquittal of the accused. within forty days and even though he was acquitted by the water ordeal. William Eufus. in large measure to the fact that many such trials were fraudulently managed. .

in the reign of Henry III.®^ " I. 287. robbery. acquittals. Reeve's History English Law. "II. arson. I. to refuse to plead and thus baffle the king's justices. 157 II. p. Dei. soon gave place to the terrible torture.52 Trial by ordeal continued in England until the judgments of councils. had the effect of filling the jails of the kingdom with prisoners content to await the invention of some other method of trial than that of ordeal. that it went quite out of use by the time of Bracton. Nov. 279.^* This order of council. as we have seen. but in the third year of the reign of this monarch on January 27 '. " This order to the justices. had such a potent influence toward abolishing the superstitious trial of ordeal. so as nofto endanger their life or limW^ and those charged with the inferior offenses were to be compelled to abjure the realm. by the ordeals of fire or water. iv. Reeve's History English Law. II. who makes no mention of it in his book. Reeve's History Eaglisti Law. and note. vol. by means. . 1219. 599. 456. to keep them Lq prison. Eadmer. 102. and since none such was provided. Instead of the judicium. theft or other felonies. 457. by which they were literally pressed to death. "II. 286. To overcome this custom. until further provision could be made. the order not to endanger their lives or limis. Hen. Reeve's History English Law. for standing mute.. during the reign of Henry III. II.TRIAL BY OEDEAL. the success of the fifty men would look more like judicium clericus. "^^ And Henry this likewise con- vinced of the fraud accompanying such. in the Essay on Peine forte et dure. but for the present. Hist. also refused to give final effect to such ac- quittals. direction was given to the justices itinerant for the northern counties of the kingdom not to try persons charged with murder. Pollock and Maitland History English Law. "Litt. any man's pleasure.

" (3 ed. in the reign of James I. "Superstition and Force. 592. Lateran. Henry III." Common Law. to determine their guilt or innocence. in the old rolls of the reign of King John. to determine the guilt or inno- cence of persons accused of sorcery.*^ This superstitious that trial by ordeal monarch maintained was an infallible test in cases of witchcraft. Cr.'^ but otherwise. p. c. Note Book. as applied to cases of sorcery. July. Compurgation by witnesses was substituted. during the craze of that delusion. Rolls of King's Court. in London Telegraph. (History this king. because of the absence of any other test to apply.e Lateran Council of 1215 forbade to this decree in tlie clergy to take part In the ceremony of the ordeal any further and in prompt obedience as England was then at the Pope's it in the kingdom.) In Nigeria the trial by ordeal still obtains in cases of witchcraft and to vindicate the chastity of women. Daemenologlae.. Lord Hale informs us: "That in all the time of King John * * * * * * but it seems to have ended with trial by ordeal continued. pi. 80..) 421. "Lea III. 11. 599 and notes.) Select PI.) 291. (Concil. " Ante idem. where it was quite generally used. Lib. because the pure elements of fire and water would not receive those who had renounced the sacred privileges of their baptism and by his authority and example thousands of cases of cruelty and oppression resulted. 154. the trial by ordeal passed into history. as a method of judicial trial. vl. England. cap.. IV. "Superstition and Force. Pipe Roll Soc. until revived in the crime of witchcraft. in England in the early part of the thirteenth century." (3 ed. i. p. P. 86. for I do not find it in use any time after. Foedera. for the former mode of compurgation by ordeal and the latter became an obsolete procedure in England. Th.158 TEIAL BY OBDEAL.. in the use of the ordeal. 152. by James I. Amaury Talbot's article. Lea. 89. and aside from the cases of witchcraft and sorcery. Pollock and Maitland's History English Law. 1912. . the ordeal last appears. abolished feet. in Europe. 18.

vol. this —was frus- trated by the Queen invoking judgment of God. and she offered to prove her innocence by the judicial combat. ™ Regino. ann. referred to as the "virgin. °'Lrea. through the ordeal of the red-hot iron." (3 ed. the The Queen triumphantly Bishop of Winchester. to establish her innocence of the baseless charge. 886 Force. S. Script. Cunigundi. many other cruel institutions of a past used. ^unharmed.) 257. is also reported -to have infidelity. of ferred against her by her jealous lord. to have successfully trod. German." supra. the success or to establish the paternity of children or the chastity of failure of the test being generally accepted as the judgment of God. Kunegundae. Editha. —^Annales Metenses. 159 along with the age. "Superstition and Ludewlg '" "Superstition and Force. the partner of his bed^° in his desire to accomplish the death of his own Mother. Queen Emma. I. pre- eagerly appealed to the judgment of God. the Empress Eicharda.— TRIAL BY OBDEAL. In 887 Charles-le-Gros accused his wife. . the unholy purpose of Ed- ward make the his Confessor—who was himself too ascetic to own wife. the Emperor Henry II. Rer. Green's History English People.^^ In the eleventh century. I. by the help of St. to establish her innocence of the charge of adultery with Alwyn. 2. The ordeal was frequently women. in ancient Europe. of adultery with Bishop Liutward. Lea. Hardicanute partiality to his half —the son of Canute. the red-hot plow-shares. purged both herself and the Bishop.wife" of St..^* St. because of her brother. 346. or the ordeal of the red-hot iron. and in vindication of her honor. cap.

Lea. "Superstition and ('The The paternity Force. She was accused both of consenting to the death of her son. ann. in the Abbey of St. the Bishop of Winchester. Lea. regularly adopted them. 1085. father of Harold and sometimes called the "King maker of England.^ ^ The Confessor was more successful in ridding himhowever. Is reported to have been established by the ordeal of the red-hot iron. who had brought about her trial.) of two children resulting from a morganitlc marriage of Robert Curthose. and of preparing poison for her son Edward. and it is reported that the King.160 TBIAL BY ORDEAL. . the Confessor. II. then Duke of Normandy. (Roger de Wendover. for preferring the false charge against them. on the night preceding the trial. Percy Anecdotes. Swithune. It seems that the charges against Queen Emma were preferred by Robert. and also of intimacy with Alwyn. Queen and the Bishop each gave nine manors to the Church of Winchester in memory of the nine plowshares. 123. 1043. and the interesting case of Godwin. The Dowager Queen. SowtMn. and Curthose. at Winchester and the next day she passed over the nine plow-shares unhurt. royal son-in-law Duke Godwin was dining with his Edward the Confessor for the latter his daughter had then married — Editha— and whether "Freeman's Norman Conq. Rapln. Archbishop of Canterbury. Ann. "Superstition and Force. prayed for help. As the story goes. ing the reign of Edward the Confessor. which the mother carried unhurt. Alfred.) 258. History d' Angleterre. p. I. Giles' note. of Malmesbury." (3 ed. Archbishop Robert fled the kingdom and the King.." (3 ed. son of William the Conqueror." durself of his father-in-law. Vol. also illustrates the superstitious belief in the corsned ordeal.) 259. Duke of Kent. was corrected with the stripes. Wm. thus convinced of the legitimacy of the boys. did pennance for his credulity. by walking bare-footed over nine red-hot plow-shares and out of gratitude for this vindication. 161.

1054. Lib.TRIAL BY ORDEAL.®* We find that the ordeal was utilized in France. ann. whether he poisoned or when Godwin put it in his mouth and swallowed he was suffocated by it and fell down dead. Edward the Confessor. 1053. for. great-grandson of Charlemagne. to account for the Duke's sudden demise.." (3 ed. Wm. would no doubt have secretly mixed poison with the corsned used in this ordeal and then order to further his self interest caused the story to be circulated among the superstitious subjects. 13. and. Chronicles of Croyland. where the expected miracle was brought about by the secret mixture of aloes in the bread of the cors- ned. 1053. in the tenth century in the notable case of Teutberga. both because of his dislike for his father-in-law. Henry of Huntington. but the secret of his death is more reasonably ac- counted for. the King repeated the accusation that his brother Alfred had met his death at the hands of Duke Godwin. ann. Matthew of Westminster. "Lea.^^ it is hard to accept this superstitious explanation for the end of old Duke GodIn this age of scepticism win. on the theory of Boccascio 's story of Calen Drino. ""Roger of Wendover. "Superstition and Force. 1054. as Lea suggests." supra. 301. 161 premeditated or not. To vindicate himself old Godwin then invoked the ordeal of the corsned and seizing a morsel of bread he dramatically exclaimed: "May God cause this bread to choke me if I am guilty in thought or in deed of this crime. in and rid himself of a hated enemy." Then the King took it the bread and blessed not. it. II. . ann. "Superstition and Force. it. cap. and his desire to cast off the tutelage in which he was held. of Malmesbury. the wife of King Lothair. Lea.) p. ann.

this degenerate grandson of a worthy grand-sire. She afterwards recanted and denied the truth of her confession and offered to establish her innocence by the ordeal of hot water. (3 ed. by espousing his concubine. "Ante idem. especially when King Lothair so far estopped himself from claiming that he had not desired to get rid of his wife. whom he had.?* Hincmar. will be harmless to the saints. because Lot escaped unharmed from the fire of Sodoni. "Superstition and Force. effectually convincing himself and a large number of the French subjects of the correctness of the judgment by this ordeal. "Lea. '^® as follows ' "In boiling in water the guilty are scalded and the innocent are unhurt. 247. Waldrada. Interrog. and will burn the wicked as in the Babylonian furnace of old. "Superstition and Force. by prosy. because they had the guidance of the Divine Wisdom. 247. "Superstition and Force." "'Lea." (3 ed.: 162 TRIAL BY ORDEAL.) p. preferred to the wife he had discredited by the criminal charge against her. in his interesting work. and the future fire which will precede the terrible judge.*^^ Illustrating the prevalence with which the pagan practice of ordeal had taken possession of the minds of the churchmen of the ninth century. Lottat. accused her of incest and forced her to a confession. vl. de .) p. Lea quotes the argument of Hincmar. Desiring to rid himself of his wife. in fact. Hincmar." Divert. the most distinguished divine of this period championed the cause of the unfortunate queen and wrote a dissertation upon the infallibility of the test of the ordeals.

2250 years before Christ. — ' ' ' Some few of the many interesting trials by ordeal. are In See Chapter on "Recall of Judges. Essays in Anglo-American Legal History. the jurors suspect her and the clerk of his death. in 5 John. 163 Of course tlie correctness of this syllogism. crueler man a more terrible judge. who was formerly the wife of Ernaldus de Knabbewell. but the conclusion seemed to satisfy a large number of that day. Let us examine a few of these old EoUs.— The jurors say that Radulphus Parmentarius was found dead with his neck broken. which obtained during the twelfth century in the reigns of Eichard I and King John. pp. and Eeginald and Christina hated Eadulphus for sueing her." to be found in the Rotuli Curiae Regis'^'' for those reigns. based upon the delusions and superstitions of a past age.' TRIAL BY ORDEAL. and they suspect one Christina. One Elena is suspected by the jurors. Eeginald. and that Christina purge herself by fire." II. stronger." "Palgrave's "Proofs and Illustrations. in his "Proofs and Illustrations. is the The records of trials obtaining during the reign of Hammurabi. And the country says Therefore."^ Roll of the Iter of Stafford. . Babylonia. 10 Richard 7. clerk and Christina appear on Friday. and on account of that hatred." clxxxviii. Palgrave. among which was the idea of a Deity who was a bigger. a clerk." John's "Laws of etc. 487. 488. have been reproduced Yij Sir F. Stephen's "Criminal Procedure. because Radulphus sued Christina in the ecclesiastical court for breach of a promise of marriage she had made to him and after the death of her husband Ernaldus. it is considered that the it suspects her. judged by the standards then obtaining." existence. "Roll of the Iter of Wiltshire. frequented her and took her away from Eadulphus. depends upon the correctness of the first assumption. of his death. — " Palgrave erroneously states that the Retuii Curia Regis "oldest judicial record in existence.

as she displayed her hand wholly uninjured. was presumed that the Devil interferred with the cor- rectness of the termination of the tests in this hated crime and so the poor suspects were condemned. in Europe. but as she is ill. of Bureweston is suspected by the jurors of the death of one Hervicus. even though the test of the ordeal favored their innocence of the charge. the ordeal of fire and water was frequently invoked by the accused persons. in 1484. She denies it. The Count "Palgrave's "Proofs and Illustrations. but so in- censed were the people against those arraigned for this offense that it was difficult to convince the courts and juries of the innocence of the alleged offender."®* spited. Count of Furstenberg. till Andrew During the witchcraft craze. The accused invoked the test of the red-hot iron and the Inquisitor attributed his acquiescence to his youth and inexperience and the fact that he was not acquainted with the methods of the Devil. Let her purge herself by the judgment of fire. Although sentenced to carry the hot iron only six paces. because she was at the place where Eainalda de Henchenhe was killed and because she was killed by her help and consent. because he fled for his death. if required. Stephen's "Criminal Procedure. let her be reshe gets well.164 TRIAL BY OEDEAL. The Inquisitor Sprenger tried before the cites the case of a witch. to clear themselves of the charge. to further the cause of the sorcerers." supra. the supposed witch carried it six paces and offered to hold it still longer. . even this by It supposed infallible test of the judgment of God. therefore let him purge himself by the judgment of water." clxxxv. after suffering untold tortures.

165 was tlius compelled to render a judgment of not guilty lived "to the against the accused person and at the time Sprenger wrote. Francof. Prof. of Copenhagen." 'Now must Herkia to the cauldron go. supposed have been composed between the sixth and eighth centuries. she drew the precious stones. Prof. So were Gudrun's wrongs avenged. Bugge's Ed. I am proved guiltless. in 1487. "Superstition and Force. Rask's ed. of 1818. in her charge of adultery against Gudrun.' No one has misery seen. the poem proceeds "She to tlie And up bottom plrunged her snow-white hand.' Laughed then Atli's heart within his breast When he unscath'd beheld.: TRIAL BY ORDEAL. the Concubine Herkia. the hand of Gudrun. the wife of Atli. holl the vessel as it may." (3 ed. " They then the woman "Malleus Maleficar. ye men.) 335. in the dramatic and popular literature of the different countries where this mode of trial obtained. (1867). utilizes the ordeal as a to justice the false witness means of bringing borne by the accuser. 106. as a means of detecting the guilt or innocence of the participants of the foul crimes of the middle ages. and then the proof of the guilt of her accuser. 523-31. "Superstition "Benjamin Thorpe's Elder Edda.'^^ First describing the test. In holy wise.) 264. . and Force. The heroic Iceland song to of the Elder Edda. How the hand there of Herkia was hurt." 1580. led to a foul slough. Lea. he reported that she still scandal of the faithful. early took a firm hold of the popular imagination and we find repeated references to the ordeal. "''<' The superstition connected with the trial by ordeal. pp. resulting in the innocence of Gudrun. 107. pp. who saw not that." (3 ed. Lea. 'See now. She who Gudrun had hoped to injure.

of Perth. II. 'It established the innocence of the maid. the blood spurted from the nose of the deceased." while the with a lochabar axe.' Then they hae cut haith fern and thorn. The ordeal of the bier was exemplified in the current literature of the age of Eichard Coeur-de-Lion. 1189. Roger de Hoveden. who killed was ^ill out. see: dead Henry's wounds Open their congeal'd mouths.. also find a reference to this ordeal of the when." ?s la Sir Walter Scott's "Minstrelsy of the Scottish Border" we bier.' she said was my may Katherlne. this author na the wite on me. On the principle that "murder body lay in state at the High Church of St. because of the treason and rebellion of which his son had been guiltyJ^ histories of that funeral procession of his father Shakespeare utilizes this story of Eichard Coeur-de- Lion. "Superstition and Force. ann. in the funeral scene. Henr. To cleanse that deadly sin. at Fontevraud. ann. where Lady Anne. l^ea. . in the ballad of Earl Eichard. in Eichard III. To hum that maiden in.. And soon the ground was red." (3 ed. for the King report that when he met the Henry II. The ladye laid her hand on him. The maiden touched that clay-cauld corpse. 1186.." in connection Sir Walter Scott uses the ordeal of the hier in the "Fair Maid with the killing of Oliver Proudfute. see. when interrupted in her grief at the bier of Henrj Vl. Scene. : : 166 TEIAL BT OEDBAL. Act I. is made to say to the by-standers "O gentlemen. A never bled." drap it " Benedict! Ahhatis Gest. "Richard III.) 316. Nor yet upon her yellow hair. by this test " 'Put It wadna take upon her chelk. and bleed afresh. Nor yet upon her chin.

known to the ancient law as one of the Judgments of God.''® The AngloSaxon codes allowed no alternative but contained diand ecclesiastical courts. he placed himself beyond the pale of the law and later could not claim the right to a lawful trial." (3 ed.) "Lea. Pollock and Maitland's History English Law.) 335. the accused who refused to submit to such a test. " II. "Superstition and Force.) 333.TRIAL BT ORDEAL. he' refused and claimed the right of trial by battle. for in refusing a compliance with the mandate of the law. ("Fair Maid of Perth. to ascer- tain the guilt or innocence of one accused of such crimes as may legitimately be the subject of this character of proceeding. was outlawed and his property was confiscated. it came to the body. for when ordered to submit to it. the same as if he had been adjudged guilty of the offense. 167 And thus Scott uses the ordeal of the bier to establish was herself the guilty person''* and the Bard of Avon and the Elder Edda utilize this ordeal and that of the boiling water. when applied. The ordeal was entirely a cases.''' A failure to comply with the order of the court to undergo a trial by ordeal. "Superstition and Force. In Perth. in an early day. was treated as a contempt of court. the servants of Sir John Ramorny were required by the corpse and touch it. the order had the force and effect of a regular judgment of the court. but when Bonthron. . for the trial of criminal The by ordeal. regu- larly used. accused had no alternative but to undergo the trial to pass John." (3 ed. Lea "Ante idem." Chapter XXIII. 650 . the person who had to touch really slain the deceased. and under the early English law. to demonstrate the inthat the accuser fallibility of this Divine test. before the civil judicial proceeding.

The Church was not only ready Cnutl. as at present. 3. Henrlci. in the construction of the foundation and the recognition of the whole institution. for the courts assumed the power and it was backed-up with the influence of the Church and the authority of the King. As shown. as tri. to accept the bar- xli. The citizens could do little else than submit to such a formidable alliance. necessarily. or between the different forms of ordeal. Ixv. and sometimes we find that the right of selection obtained. with the customs and legislation of the different rulers. Society was not organized. tion had the Mosaic law as and the Church's approval. cap. varies. xxx.'^® Little. and specific provisions for the trial by ordeal. sec. cap. " II. like many other of the cruel customs its of the ancient world.168 rect TRIAL BY OEDEAL. which proceeded in the name of the Majesty of the Law and the Solenm Assurance of the Church. . might was right when used against the weak and oppressed and the power of the Church and State was too much for any individual to overcome. in all its different phasesJ'^ The circumstances and conditions under which ordeal was employed. in the trial of the various felonies known to the early Saxon laws. but the Church and State were all-powerful and their orders had the force to overcome all private resistance.. Saec. I.al in the beginning. could result from a discussion of the power of a Court to order submission to such barbarous treatment. to protect the rights of the individual. the institution known founda- by ordeal. "L. for there were no constitutions to protect the citizens from cruel or unusual punishments. if any good. between this and other modes of compurgation.

1036. II. "Lea. as such. not authorized by the teachings of the ancient Jews or the religion of Christ." directed his judges. English Law.) 354. Bene- Pollack and Maitland's History "Rymer. 228." No. for ever since the sixth century and perhaps from the beginning of the custom. the Church had no inconsequential part in abolbarous practices of its ishing this barbarous custom. starting on their circuits. and prelates in all the Catholic countries were everywhere granting special charters authorizing the privilege of trials by ordeals. 599. 169 pagan converts but itself gave them fresh claim to confidence. and finally. L. by throwing around them the solemn ceremonies of its own approval.TRIAL BY OEDEAL. "Seeing that the judgment of fire and water is forbidden by the Church of Eome. ann. the protests of these wise Churchmen culminated in the suppression of this old test. 57. Foed. 18. c. "Superstition and Force. The ordeals were all conducted with the aid of the priests..®^ (3 ^d. Annal. and in 1215 the Lateran Council forbade the clergy from afterward taking part in the ceremony known as trial by ordeal. sy/pra. because the Churchmen were but human and.. 74. we find. Illustrative of the approval of the church of procedure by ordeal. II.'^® But as the Church was partly responsible for the practice of trials by ordeal. Law. Rome in the ancient in the ninth century that Hincmar . IV. entered into the manners and customs of the people of the period when they lived.*" And Henry III. I. following the lead made by the Church. "Concil. dict. Lateran. 356. Pollock and Maitland's History Eng. eminent Churchmen had opposed the institution as a pagan custom. to adopt other methods of proof and to forever discard this brutal test.

according to our twentieth century standard. struggling without compass or needle.) 370. has its sins own and short-comings to answer for. in' both of which we see the righteous escape and the wicked suffer. like every person. therefore. Lea. when just able to attempt to clamber up the mountain heights of wisdom. in the trials of men and women for their offenses against society." (3 ed. upon its part. They should not be held to more than the ordinary standards of right and wrong then prevailing. . as judged expatiated upon the blessing of such a test. The inhabitants of the centuries who utilized the trial by ordeal had not then perfected their judicial system so that very high ideals of individual right obtained. the other — authorized by the fiery doom of the future the day of judgment." Hlncmar. in the beginning. "Superstition and Force. Church was remiss in its duty to oppose the it ordeal. If true that every age. and that is the happiest which best succeeds in hiding them for a time. entitled to the benefit of the approval of the friends of humanity for this tardy beneficence.^^ then the age of the trial by ordeal. — "Lea." (3 ed. but they had made wonderful strides in the arts and sciences. de Dlvort. and is. while practicing this hideous custom of trusting to the wisdom of God. Lothar. amid the darkness of a barbarous age. "Superstition and Force. Interrog. if atonement is essential for the wayward customs of a pagan race. in their efforts to find the higher law for society. was guilty of a sin that the past centuries must atone for.) 244. at least. vl. in that it combines "The elements of water and of fire: the one representing the deluge the judgment inflicted on the wicked of old. brought about the repression of the practice. to steer a straight course.170 If the TRIAL BY ORDEAL.

in unmeasured terms. We have elevated the standards of the judicial system somewhat. our older brothers of the day of trials by ordeal. we have spiritualism and other similar protests against rationalism and reason. but in our own time. so we are not yet in a position to condemn. are favorable to submitting to popular vote. a large number of people. instead of further establishing the independence of the judiciary. TEIAIi BY OEDEAL. since that period. the correctness of a given decision. . 171 by man made laws.. or the judicial fitness of a judge mormonism only recently was abolished and instead of the superstition and delusion which invoked the judg- ment of God in trials of witches and others accused of unproven crimes.

which was quite generally considered a contumacy equivalent to standing mute. standing mute was held equivalent to a conviction and the prisoner was sentenced and received his punishment. that there be placed upon his body 1 ' The terms II. just as if he had entered a plea of guilty or suffered a conviction. a judgment purposely ordained to be exquisitely severe. But in all other felonies the prisoner was required to plead to the indictment. where he peremptorily challenged more than twenty jurors. was the name given in Europe to the particular kind of punishment formerly inflicted upon a prisoner.^ Generally. where he stood mute and refused to answer on his arraignment. and there be laid on his back. on the bare floor. that by that very means it might rarely be put into execution. or refused to plead. Reeve's History English Law. the ' ' strong and hard pain.' CHAPTEE VI.^ or. or having entered his plea of not guilty. and put into a low. ' was most appropriately termed. Peine Fokte et Dtjee. (172) . are pronounced pan fort a dur. in indictments for high treason and the lower felonies and misdemeanors. was: That the prisoner be remanded to tEe prison from whence he came. unless where decency forbids. The judgment for standing mute. 423. naked. Peine forte as it et dure. dark chamber. charged with felony. he was subjected to the peine forte et dure. before a conviction could be obtained and if he obstinately stood mute. p.

2 Inst. 173 as great a weight of iron as he can bear. to death. 63a. 134. by cords. it is necessary to understand somewhat the history of criminal proceedings of the period when it obtained. Bishop's Crim." 4 Bouvier's Sh. until he answers to the indictment. Litt. 322. and more. Bl. 641.* Where the prisoner had heirs.PEINE POETE ET DURE. Comm. 63b. The motive which would induce the prisoner charged with felony to submit to this terrible punishment. naked. three morsels of the worst bread and on the second day . and possessed any estate. his arms and legs drawn apart. 179 to Ibe . II. this should be alternately his daily diet. sec. on the first day. upon the ground. 34. . was placed upon his chest." This punishment was called also.* To understand how such an inhuman that of pressing prisoners to death institution as came into existence. and as much weight of iron or stone as he could bear. that he have no sustenance. that should be nearest to the prison door and in . 130a. 4 History fol. Law. vol. lib. three draughts of standing water. "He was laid "pressing Fleta. I. 178. Dictionary. was no doubt to escape the attainder which would result from a conviction for felony. rather than enter his plea. corruption of blood followed attainder and the felon could neither inherit nor transmit landed property. save only. for death and attainder " Coke. on his back. down. Hale's P. to avoid the attainder of his name and the corruption of his blood. 6 Coke. If he was convicted of felony. ii. I. his goods were forfeited to the crown and in the case of capital felony. English Law. C.. 33. 324. his feet and head and loins covered. his attachment and affection for his heirs or children frequently prompted him to suffer the punishment of being pressed to death. 391. therefore. ii. *Coke. Reeve's ch. Britton. this condition.

" "By refused to plead. of jeofails "11. 486. 650. Under the stress of the perplexity of having found concrete cases not covered by the custom and practice of the period. p. There is no doubt but that for a long time after the year 1215.^ and as a part of the procedure obtain- when this barbarous custom prevailed the prisoner when asked "Culprit. or even to put him upon his country. the judges instantly ordered some of the offenders standing mute on malice. the law did not know what to do with a man who stood mute and refused to plead and the peine forte et dure was an institution slowly and painfully evolved from the customs of the past. before he entered his plea. the court was so perplexed that frequently the prisoner would escape by some trivial punishment. the difficult thing was to secure his consent to try him by either method.174 PEINE FORTE ET DURE. as the procedure of the period did not of these times in- clude this kind of a case. in any event." replied. . and it was unheard of then to try a prisoner by ordeal. how will you be tried. Trial by ordeal obtained in England until the thir- teenth century. II. 392." which was the request for a jury trial. 396. to be put to death. rather than '^'By my country. Essays in Aniglo-American Legal History. which was fre- quently certain to result. Legal forms at this period had much greater efficacy than at present when we have statutes and look to the substance. 488. rather than the forms of things. Pollock and Maitland's History English Law. so where he stood mute. "would both result from the conviction. ing meaning that he would be tried by ordeal. When the prisoner stood mute and Grod. so the astute criminal lawyers no doubt frequently practiced this subterfuge to perplex the court and secure the escape of a guilty client.

in prison. fastened down with irons. before sentence. made of this punishment for stand- ing mute through obstinacy or wilfullness. forte et dure. II. accomplish the West.® But the courts could not wait for the obstinate prisoners to voluntarily renounce their obduracy and succumb to such mild treatment and the accumulation of cases where the prisoner stood mute and the growing popularity of this offense. with whipcord. . They were to go "barefooted and! bareheaded. Reeve's History English Law. until the obstinacy was overcome. in the year 1275. according to the custom of the realm." only eating and drinking on alternate days. but this was practically judicial murder.PEINE FORTE ET DURE. Starvation was then added to the punish- ment of confinement. 1. 175 for refusing to consent to be tried. with low diet.. During the reign of Edward the first mention is I. upon the bare ground continually. and latterly. 12. In the beginning of the thirteenth century the penalty for refusing to plead consisted merely of a severe punishment. It was enacted by this statute that felons refusing to plead through obstinacy should be confined in the prison. so the pendulum of public sentiment swung back from this precedent and brought about a great revulsion to this practice. night and day. c. seemed to threaten the speedy dispatch of the criminal business of the period. Stat. of tying the thumbs together. that the pain might induce the prisoner to plead. 423. the practice prevailed. until the plea was entered. as the defendant had not been legally convicted. but this did not p. in their coat only. which had no legal sanction. in the proceedings of the Parliament of Westminster.

12 . and by express statutory exception prisoners "taken upon light suspicion" were not to suffer the punishments Some writers have taken the position that the punishment. . 423. or perhaps from the time of Bracton. peine forte this statute. before the enactment of this statute. "Brltton. 179. but not sufficiently described. This view is shared by Reeves. 33. desired end." that the act called for. lib.^" of merely being fastened dowTi ' ' statute West.^ and the statute in merely providing for an imprisonment forte et dure. 29.176 PEINE POETE ET DURE." of evil Edward I. were to have the "strong and hard punishment. As before seen." for these alone. 424. II. 1. sec. was declaratory of an existing punishment assessed by the common law. Fleta. touching upon this punishment. or limited. Reeve's History Englisli Law. we find that during the reign of Henry IV. apwho were "openly name. iv.* However this may be. passed during the reign of plied only to "notorious felons. according to the custom then obtaining. the first statute. p. and the proceedings detailed by Fleta and Britton. c. et dure owed its existence alone to states but Sir Edward Coke that the punishment was assessed at common law. 11. fol. the mild punishment provided for by the statute of Edward I. c. and the punishment did not owe its existence to this statute. of forcing these obdurate offenders to consent to be tried. Reeve's History English Law. who states that this method of treating felons who stood mute was introduced sometime between the fifth year of the reign of King Henry III. c. p. 2 Inst. refusing to plead before the justices at the King's suit. 1. 178.. and the third year of King Edward I. °II.

tices creased to such an extent that the patience of the jus- was sorely tried. as it was known. ^^ The prevalency of the practice of standing mute in in- such cases. They determined. seems to have been firmly established as an institution of the English Criminal Law." an event most likely to follow speedily from the quantity of weight or iron placed the plea was entered. during the its time of Henry IV. . All exhortations and mild treatment were abandoned and the obdurate prisoner.. "until to the harsher punishment of being compelled to lie under a "peine. and the reason for is to existence be found in the object of the justices in eyre and justices of gaol delivery.. of obviating the' necessity of remaining for long periods in the English country towns. according to the fixed customs of the realm. on the bare ground of the prison. "III.PEINE FOETE ET DUES. 439. Reeve's History English Law. therefore. even if it resulted in the speedy and painful death of the offender." had given way upon such prisoners." "till they were dead. under the milder form of punishment. in inducing prisoners charged with felony to consent to be tried. waiting for the mild effect of the formerly prevailing punishment." unless he recanted and submitted himself to a trial. to put an end to such a practice. about the be- ginning of the fifteenth century. thus defying the court. provided for by the statute of the reign of Edward I. 177 with irons. was sentenced to be literally "pressed to death. The peine forte et dure. from the fifteenth to the eighteenth century. by furnishing such a harsh punishment that the example of inflicting it would discourage prisoners from thus defying the law.

but the imprisonment was not to endanger life or limb. sophical phase of the subject remedy was but upon this philoif we are not concerned. a case arose for the instruction and advice of the King's Council regarding the course to be pursued where the prisoner refused to plead. 207. 154. p. illustrat- ing the application of the custom. p. p. but took such course as seemed best suited to the individual 31. wealth. ''II. II. Foedera. "Leges Henri. Harvard Law Review..^^ It was decided that although the prisoner was charged with the gravest kind of a felony. 650. this species of punishment obtained for three centuries and a half in the English criminal law and a great many concrete cases. . Pollock and Maitland's History English Law. No suggestion was made of attempting to compel the submission to a trial. with the object of compelling a respect for the law.^* of the statute I. Pollock and Maitland's History English Law. i. 650. In the year 1219. or not really worse than the disease. And it is interesting to note how the punish- ment was made more severe with the increasing prevalency of the offense. sec.178 It PEnSTE FOETE ET DURE. 5. he was to be safely kept in prison. "Whether justly or unjustly. V. when the reign first eyre of Henry Ill's was in session. Palgrave. arose during this period. CommonThayer. and the details of assessing the punishment to be inflicted was left wholly to the discretion of the justices. The cases occurring before the passage of Westminster in the reign of Edward show that the justices did not have any fixed method of handling the cases wherein the prisoner refused to plead. if may justly be doubted the defiance of tbe majesty of the law by this failure to plead was the sufficient to justify such a barbarous practice. 265.

him to prison. 651. the courts adopted starvation as a remedy for refusing to plead to an in"II. 157. Fleta. 30. Pollock and Maitland's History English Law. 503.^'' Thus. Edward I. 136. . 142b. statute of Edward the cases arising without any fixed rule governing the were determined punishment to act. p. it appears that before the enactment of the I. During the Warwickshire eyre of 1221 Martin PateshuU pursued this course. 1. Sometimes the expedient was if resorted to of taking the verdict of an exceptionally- strong jury and condemning the prisoner. to plead to the charge. 179 case before tlie court. although the townships and the knights of the shire had declared him guilty.. 11. Cr. 51. 153. as he speaks of the method of compelling a man to place himself upon the country and states that he was con- sidered undefended and quasi-convict. pi. "Bracton. the procedure does not seem to have taken the course that it did in later years. 322. regardless of fused to plead.^' guilt. on the refusal of a prisoner accused of the court merely committed ceiving felons." During Bracton's time. 511.PEINE FORTE ET DURE. he was found whether he had formally entered his plea or not. he was re- In 1222. the priso- be assessed. 652. but a few years after this ner was laden with irons and in the course of a short period the hideous peine forte et dure was developed.^* The prisoner stood mute and reguilty. at Westminster. I. II. fol. Britton. having sworn to his hanged. p. 26. "Select Pleas of Crown.^® During the reign of Edward III. if he refused. "Year Book p. pi. 143b. but the twelve hundredors and twentyfour other knights. Hale's PI. "Note Book. on two different occasions. 531. to be held in solitary confinement. Pollock and Maitland's History English Law.

Reeve's History English Law. on Lady Day." During the reign. she obstinately stood mute. of Henry VII. was ascribed to the influence of the Virgin Mary. and that more weight should be placed upon them than they could stand and they be given only bread and water. for speaking contemptuously of the Bang. we find two felons. who was pressed York.180 PEINE FOETE ET DUEE. as narrated by her spiritual adviser.. death at most pathetic. Henry VI. as illustrates. 1586. 70. 254." in a summary manner. In 1442 Juliana Quick was arraigned upon a charge of high treason. whose intercession could only be reconciled with the innocence of the defendant. She was committed to prison and lived without meat or drink for a period of forty days and nights. at Southwark. without food. March 25'. as her wonderful longevity..) . Flnlason's note. She refused to plead and it having been determined that her refusal was obstinate. IV. and. who had been taken from sanctuary. or suffer the terrible peine forte et dure. they were peremptorily ordered to be taken back to the jail and there placed upon the bare ground. is The to case of Margaret Clitherow. which was overruled. she was "pressed to death. Edward nately refused to plead in charges of felony. until they die. case of Cecelia Eygeway She was indicted for the murder of her husband and refusing to plead. p.^* Starvation was generally discarded sometime after and after the reign of Henry rV". on being arraigned before Sir Thomas Frowike urged their plea of sanctuary. Keilway. in short. (21 Henry VII. "Watt's "The Law's Lumber Room. when she was allowed to go free. rather than by an infirmity of nature. on being commanded to plead to the felonies. that they be literally 'pressed to death. and refusing. the peine forte et dure was the regular and lawful mode of punishing persons who stood mute and obstithe statute of I. tlie dictment for murder.

on her refusal. "Culprit. by the murder of this defense- . but she refused to and enter her do so. On her second arraignment. she was committed to prison and during the intercession of the court Parson Whigington. the jeers and taunts. a puritan preacher. but she was accused of harboring Jesuit and Seminary priests. When plied with the usual question. when the court seemed about to condemn her to the peine forte et dure. Parson Whig- ington spoke in the interest of the prisoner. a friendly priest. ever levelled at the unfortunate. 181 John Mush. the court ordered "the law to take its course". by the Sheriff and as she was led through the crowd.PEINE FORTE ET DURE. of hearing mass and other similar offenses and so she was committed to York Castle and later was regularly arraigned in the Conamon Hall. calling the court's attention to the fact that "this is touching life and death. Margaret's husband was a Protestant. you ought not. to judge her to slender witness of a boy. how will you be tried?" instead of making the usual answer. and continued obstinacy of the prisoner. she had her arms pinioned with a cord. " woman's case by die upon the Entreating her twice again to renounce her obdurate plea and to throw her case upon the country." After the good repeated entreaties by the court. labored long and hard with her to convince her that she ought to forego her obduracy plea. or man's. either God's law. "By God and my country." the prisoner refused to make any other answer than that she would be tried "by God and your consciences." gave the Sheriff the idea that he was to soon become a popular man. in keeping with "man's inhumanity to man.

The inhuman wretch who acted as was named Fawcett and with no instinct of decency or chivalry. she in a long loose linen was allowed to die robe she had made for the occasion. he bade her "put off her apparel. in an attempt to demonstrate the injustice of such a hideous punishment. and the Lord Mayor of York. on the entreaty of her friends. after expressing his pity. She was urged to press the exemption of pregnancy. a hero. She refused the offer of friends to add sufficient weight to dispatch her immediately. that she might Sheriff be allowed to die in her "smock" and that "for the honor of womankind." whereupon she pleaded on her knees. as deliberately as any martyr ever took the rack. Her execution having been set for Friday." Fawcett refused this becoming plea. . but refused. they would not see her naked. in 1586. She was led bare legged and bare-footed street. as if courting martyrdom. She stood firm. and finally even the sympathetic Parson Whigington. on Lady Day. as did her friend the good Parson Whigington. left her and came again no more. on his knees begged her to enter her formal plea to the charge against her and to submit to trial. but finally. this innocent "woman. but subjected herself to the torture. as if in commemoration of the day when the gentle Saviour took his departure upon the cross of Calvary. woman. so lie proceeded to his work as if he were.182 less PEINE FORTE ET DUKE. in fact. that the horrible example of this hideous punishment could be made the more detestable. also suffered martyrdom and died her death. through the with a loose gown to hide her naked- ness and distributed alms to the idle spectators as she passed along.

Lumber Room. 32. p. She gave but a single cry and exclaimed: "Jesu. sharp stone procedure did not follow immediately. posts. Watt's "The Law's vol. 271. 1910. had been placed under her back. and seven or eight hundred pound weight was placed on the door and this weight broke her ribs and caused them to burst through the flesh on her sides. . p." "Surtee's History of Durham.— . Jesu. and was accordingly pressed to' death. in 1598. after the death of this good woman. in a realm where such Satanic tyranny and intolerable cruelty are unknown. Anthony Arrowsmith stood mute and refused to plead to the charge of felony. with a handkerchief on her face a door was laid upon her body and her hands were bound by Fawcett to two . May. have mercy upon me. in the usual manner. so was crossed by the taunts and gibes until finally the weights of the vulgar mob. Strange. ill. so that her arms and body made a perfect cross even as the Holy One of Galilee was taunted by the mob this innocent soul who followed Him to Calvary. Jesu. PEINE FORTE ET DURE.^^ ^Law Notes. that the death knell of this hideous and crue! A large. as yet it is quite evident that the ideals of holiness and right- — eousness are slow to permeate the hearts of all the human family. were placed upon the door. 183 She was placed flat upon the ground on her back. is it not. in this cruel manner! But when it is considered that such Satanic cruelty could have lasted for sixteen hundred years after the cruciand that all traces of his presfixion of the Saviour ence are not entirely eliminated from the earth. as a result of the aroused and outraged public feeling."^" Let us hope that with the wail of this lost soul the weeping Christ made room for the misguided martyr.

^* In 1615 Sir Richard Weston. of Calverly in TorksMre. or through obstinacy or indifference to his personal suffering and death. The records show that many of these poor prisoners were totally destitute this and suffered punishment either through stupidity of the prisoner or of his counsel. in the castle. during the last half of the sixteenth and the early part of the seventeenth It recount centuries.^^ would be impossible. was arraigned for the murder of Sir Thomas Overbury. in Middlesex county alone. for murdering his two children and stabbing his wife. was raigned at the York assizes in 1605. but ^ Stow's Chronicle. and on refusing to enter his plea he was pressed to death. a prisoner of some note. to all the most interesting cases where this inhuman punishment was inflicted. =' Watt's "The Law's Lumber Room. there were thirty-two pristorture about this time." which furnished the sad epitaph for each of the beknighted sufferers who under- punishment.: 184 PEINE PORTE ET DURE.' . ar- Walter Calverly. oners subjected to this punishment and among this number three were women. In the record of these cases the Clerk wrote the words "Mortuus en pen went this fearful fort et dur. in any reasonable space. placed on his breast. for instance. He stood mute and obstinately refused to plead to the indictment. by a large iron weight. were adjourned to give The proceedings him time for reflection. after being solemnly warned by the judges of the terrible consequences of his persisting in his defiance of the laws of his country. as a great many prisoners underwent this For the nine years between 1609 and 1618.

pt. for obstinately refusing to plead to an indictment charging him with the murder of his brotherin-law. where so many tragedies were enacted. 1628. Mr." According to Rushworth. in 1657. but as a persuasion." Vol. It was finally decided that: "Torture was not. it availed him nothing. so certain to follow his trial. to induce a charged with felony. at New- gate. permitted at all. added the weight of their bodies to that of the press and soon he was out resulting of his suffering and in keeping with the custom of =»Liaw Notes for May. p. the Privy Council debated the question of their right to place the prisoner on the rack. he was condemned to the peine forte et dure. . in order to prevent the attainder of his blood and the forfeiture of his estate. 373. 185 on his continued obstinacy. when John Felton was arraigned for Duke of Buckingham. 31. for the sufferer. however. to put himself upon his trial. in the name of the law. 1910. from his conviction. in the olden time. 44 Chamber's Journal. The press was placed upon him angle-wise and although of sufficient weight to cause him much pain. he was adjudged to suffer the peine forte et dure?^ Major Strangeways was pressed to death. in November. it was not heavy enough to kill him. p. and in that one exception. Jan. upon the supposition that if he had committed the murder. with one exception. Fussell. and refusing to plead and standing mute. 1867. Watt's "The Law's Lumber Boom. through pity. no doubt.-June. so the spectators. the wounds would bleed afresh. Although he was innocent. according to this test.PEINE FOETE ET DURE. and he was placed upon trial at the Old Bailey. At the Coroner's inquest he was made to take the corpse by the hands and touch the wounds. it was permitted neither as a punishment nor the assasination of the as a man means of getting evidence.

" . et dure. the period his dead gaze.186 PEESTE FORTE ET DURE. his will was broken. 33. so the press was removed and he entered his plea and stood trial. in the ordi- nary manner. convicted and hanged. Law Notes. from a similar In the year 1720. for May. stood mute and obstinately refused to enter his plea and on being sentenced to the peine forte et dure. upon his arraignment for a felony. p. he was placed under the press at Newgate and suffered the torture for a considerable time. with four hundred Kingston to suffer this pounds of iron. . concluded that he would stand mute and try the effects of the peine forte at He was punishment for his obstinate defiance of his country's laws and after being pressed for an hour and three-quarters.^® And in the following year. he suffered the pressure of a weight of two hundred and fifty pounds for a period of seven nainutes and then gave up his resolution and craved the privilege of entering his plea and throwing himself upon the country in his trial. until he concluded to enter his plea of not guilty and stand trial. 1910. was adjudged to undergo the peine forte et dure. He was taken the dock and was tried.^^ 25 to Watt's "The Laws Lumber Room" " Stowe's Cbronlcle. arraigned for sentenced murder.2^ In 1726 a man named Burnworth. who stood mute and refused to plead to an indictment for felony. "Watt's "The Law's Lumber Room. a man named Phillips. one Nathaniel Hawes. "Ante idem.^^ that the details body was displayed to the vulgar morbidly curious could advertise the of the tragedy and thus deter other offenders offense.

trial he concluded to do and filed his plea of not guilty . before Hawthorn and Jonathan Curwin. in 1734. History. his thumbs were first tied together with whipcord and the Sheriff taut in the presence of the court pulled him up and the latter dignitary promised him the peine forte et dure. who was arraigned at the Old Bailey. Jr. in April. they would weaken and conclude to enter their plea.PEINE FORTE ET DURE. "Mary Walcott. 187 From tlie number of reported cases that have been inspected. of Salem. I. 1692. Chandler. Mercy Lewis. for standing mute and refusing to plead to a charge of felony. he was placed upon his year 1741. so On reflection. Peine forte et dure. if he did not regularly enter his plea to the indictment. this. "Washburn. 122. it seems that a great many were unable to withstand the suffering resulting from the application of the weight to their bodies. Enc.^" The only instance noted in which this punishment was ever inflicted in the United States. Cr." '°XI Inter. forthwith. Upon his obstinately refus- ing to enter his plea upon a charge of felony. who stood mute and obsti- nately refused to plead. 142. was in the case of Giles Cory. after the tying of his thumbs and other cus- tomary procedure was found to be unavailing.'^ He was arraigned at Salem. Ann Putnam. Trials. Nom. This was true of John Durant.^^ As late as the it is reported that a pris- oner was pressed to death. but when the torture was experienced.. ." He was accused of giving ""Watt's 'The Law's Lumber Room. at the Cambridge assizes. Su'b. Jud. and Abigail Williams affirmed he had hurt them. when arraigned upon a charge of witchcraft and sorcery.

trial. to buy a life. this offense in New England. ""The Spirits in 1692. I I 329. I will not bear false witness against any. of being frightened in the cowhouse and of threatening suicide. And swear men's lives away If I confess.^^ And he was the first and last to die for him. == late to view the "Wonders of the Invisible World." Gloyd wonders "The old if man will die and will not plead. hut only death in life." The Sheriff with his cane." 509. . for January and June..: 188 PEINE FOETE ET DURE. No. Ye may torture it. Then I confess a lie. 1856. has thus explain to Eichard Gardner. p. 333." by Robt. I am condemned already. stones were piled upon till the tongue was pressed out of his mouth." — The Sheriff then Cory answers him "I come. Putnam's Magazine. bound hand and foot. Elizabeth Hubbard a of hurting Benjamin Gold. Calef (1828). forced it in again. 7. pp." and while thus wondering. arrives too test of martyrdom. in In his account of this the "New England made Cory refused to Tragedies." the gentle Longfellow. ye cannot crush. calls him to his punishment and Here is my body. whom I count least. But the immortal soul.j why he ^ju ^^^ pjgg^^ If I deny. In Courts where ghosts appear as witnesses. Which is not life. fit. when he was dying. plead: . of bringing the book to these various witnesses.^^ On September 16' "just as the Autumn leaves were beginning to glorify the earth. Nor even against myself." he was laid upon the ground.

20. Hereafter will be counted as a martyr.." But Mather. in 1692. Will rise again. based upon this sad miscarriage of justice in this New England case. any person who should stand mute and refuse to plead. not thus satisfied with the proceeding. as surely as ourselves That sleep in honored graves. forgotten Law. Spangled with churches. 189 In Scene IV. virtually abol- ished the punishment of pressing prisoners to death for standing mute. between the Howard street burial ground and Brown street. the field near the graveyard is presented. Refuse to plead their guilt or innocence And stubbornly drag death upon themselves. of this tragedy. until the year 1772. whom we have made a victim. as a part of the criminal procedure of the kingdom. Evangelical. when arraigned for "Longfellow's "New England Trajgedies. with epitaphs. Inwrapped in our salvation. must we seek. as an institution of the English courts. . to do saich deeds? Those who lie buried in the Potter's field. when called This statute declared that upon to plead." p. continued in effect. Hathorn and Mather are introduced to the spectators and make a vain attempt to explain and justify the deed and the former points to the dead body of Cory as a horrible example of "Those who deal in witchcraft and when questioned. Nevins.: PEINE PORTE ET DUKE. with Cory lying dead. c." Tradition has it that Cory was pressed to death in an open field. "Witchcraft in Salem Village. And this poor man. In Salem. when the statute 12 George III. with a great stone upon his breast. Some old. 107. is made to deliver himself "In a land like this. I-n mouldering statute-books of English courts.'™ The peine forte et dure.

felony or piracy. Braley. the defendant was arraigned upon a charge of larceny and "1 and "9 8 George III. by verdict or confession. c. 28. vs. This latter statute. just as the court proceeded et when the p&ine forte dure was in force and on the return of the verdict that the defendant wilfully refused to plead. ' a plea of not guilty should be entered for the person accused. . In Commonwealth vs. should be convicted. in substance. 103. the court remanded him to jail. Moore. even though he stood mute and refused to enter his formal plea. Mass. This procedure was again changed in England. in the year 1827 by the more humane ' rule. "^^ and he was thus given the benefit of the legal presumption of innocence. which the criminal law surrounds all prisoners with and he could be convicted and sentenced for the offense charged in the indictment only after this presumption of innocence had been overcome by the proof of his guilt.. and suffer judg- ment and sentence to be rendered against Mm.^'^ in the year 1812.190 PEINE FORTE ET DUEE. or by Act of God. the same as if he had been regularly convicted. "I. Mass. the defendant stood mute and refused to plead and the court proceeded to empanel a jury to try the defend- ant to ascertain if he stood mute wilfully.^^ in the In Commonwealth year 1804. 402. that upon a failure or refusal of the defendant in a felony charge to plead to the indictment. has been adopted most of the United States and the cases arising under these statutes illustrate the beneficence of the in new procedure.

was provided by Act of Congress. Thompson.^' "3 story. Johnson vs. (3 Helsk. the court proceeded to sentence him. 1825. may proceed to render judgment accordingly. 511. 20. as if he or she had pleaded not guilty. U. . whenever the prisoner stands mute. People vs. had himself entered his formal This enlightened procedure was adopted by Congress at the beginning of the past century. that "If any person. "Fernandez vs. in all It cases where prisoners stood mute. for any offense not capital. '^® ' Since the enactment of this federal statute. but the court entered up a plea of not guilty for him and proceeded to try him. 191 lie stood mute and upon a finding of the jury that stood mute through wilfuUness. the court shall notwithstanding. in Maryland. 238. Hare. upon a verdict being returned by the jury. 2002 Sec. in the year 1818. Lannon. just as if he plea. Thomas vs. and. 6 Mo. State. Commonwealth vs. 4 Cat. McCombs. c. S. State vs. similar acts have been adopted in most of the United States and the practice now quite generally obtains of entering a formal plea of not guilty. 12 George III. upon his or her arraignment. Laws. proceed to the trial of the person so standing mute. In State vs. 13 Iowa. evidently proceeding under the statute. 457. 314. 95 Mass. March 3'. upon any indictment. shall stand mute or will not answer or plead to such indictment. or refusing to answer or plead. Link vs. before any court of the United States. 563. 7 Ala. State. the prisoner stood mute and refused to plead. holding that the old rule in this state was changed by statute. just as if he had been regularly convicted. 50 Tenn.PEINE FORTE ET DUEE. 22 111.) 252. for any reason and the trial proceeds just as if the defendant had himself entered his plea. State. People. 426. 14.

"Act p. in "Much Ado About Nothing" he makes when speaking of Beatrice. No. 67. -Richard II. . Scene IV. Act V." when the Duke adjudged that Lucio should marry my the woman he had wronged. in the Hero say to Ursula. 40. She would mock me into Out of myself. to she would laugh death with wit. conII. But who dare tell her so? If I should speak. when upon to plead to indictments for felonies. as one of the cruel and extreme methods of procedure of the olden times."" me In "Measure for Measure." sec. Shakespeare makes frequent reference to this punishment and always in such manner as to demonstrate that he was thoroughly familiar with the nature and object of the procedure governing the infliction of the penalty upon those called who obstinately stood mute. Marrying a punk. I am pressed to death through want of speaking. The punishment for standing mute and refusing to plead." <2 lord. whipping the latter replied: "Lucio.192 PEINE PORTE ET DURE. "White's "Law in Shakespeare.. on overhearing the talk of the Gardener and servant. " Measure for Measure."" as if she were really in the dock and actually condi- tioned so that she would suffer the customary penalty for standing mute. O. III. Scene I. is pressing to death.. Orchard of Leonato:*" As "Hero. has attracted the attention of the poets and writers in the English language. O. Act III.. cannot be commendable. not to be so odd and from all fashions Beatrice is. in the Duke of York's garden.. press me air. In Eichard cerning the King. and hanging. the Queen soliloquizes "Queen. Thus. Scene I.

of our we can indulge the hope that many own formal procedures will be ished. thus. the law itself has reached a higher plane. consistently with the de- mands and of society. . for like landmarks. because shall not speak of encounters. to the end that unjust results amended and aboland delays may be minimized and the attainment of just ideals promoted. can best be understood. The law should ever stand aloof even as a just parent from any — — punishment prompted solely through the " Troilus an"d Cressida.PEINE PORTE ET DURE. The science of the law should keep pace with the advance of the student of philosophy. with the abolition of this quandam formal procedure. 193 Pandarus also refers to the peine forte et dure. that was considered such a material part of the old criminal law of England. from which we can look down upon the crudities and cruelties of the old system. with pity for the multitudes who were subjected to its harsh rules and false standards.. harsh punishment for standing mute. in advising them to "press" the bed to death because it stands mute as to their "pretty encounters" thereon: "Pan. pointing the devious course of the tortuous procedure that obtained for centuries."" By a study of the old cases. before the evolution of the science. your pretty- Which Press bed. the later cases evidence the gradual decline of the old. it to death: away. Act III. And judging the future by the past. * * * J ^uj It sjio^ you a chamber and a bed. in Troilus and Cressida. mad power of Scene II. decided when the peine forte et dure obtained. to the point where it was able to preserve the just rights of the individual. the development of the law on this subject.

but with the errors of the past before us. has its follies and mistakes and nonsense is not confined wholly to the past ages. ought to warn us. However unwise and unjust ancestors the standards of our may have been. inflict "When it has attempted to punishment unjustly. who. to enter his plea. this institution. in popular governments and the laws should be impro-sjed for the benefit of the people. like a beacon light. death. humanity has generally triumphed over inhumanity and the mistakes of our ancestors. the advantages. should be thoroughly scrutinized. like many others of the past. for different reasons. We have seen that for centuries. PBnSTE PORTE ET DUKE. although most dearly bought. peine forte et dure. Laws are man-made. Every generation. defied the fetish and barbarous custom that developed the cruel institution. the causes and effects. we ought to avoid the same mistakes that it took such suffering and tutions experience to correct. however.194 miglit. upon the obstinate refusal of a prisoner charged with felony. if any and the disadvantage of such procedure. the inhuman judgments of to the courts for the administration of justice —established —^were that he should was called be literally "pressed answer. which wholesale legal murder of thousands of made possible the human beings." regardless of his guilt or innocence of the charge that he upon to —as — with others of the past centuries ^we can perhaps conWith the passing of this horrible institution gratulate ourselves. that with the evolution of the instiof our civilization. furnish a lasting object lesson for present and future generations. of the .

selves upon the fact that nothing so dure. we are still guUty of many "crimes against criminals." which succeeding ages.PEINE FORTE ET DUKB. But our own procedure contains many incongruities and erroneous stand- and while priding ourinhuman as "pressing to death. will no doubt regard in much the same light as we of the present age look upon the cruel punishment. that should be corrected. in the perfection of the science of jurisprudence. 196 dangerous shoals and reefs." obtains today. ' . peine forte et ards. [ : . wMch the ship of state should be safely piloted around.

in ancient England. then shall an oath of the Lord be between them both. that the good character is or reputation of the defendant to ofifer. and he shall not make . or a sheep.: CHAPTER Wager Wager VII. in his always proper for him issue of the like- own defense. 10. for if he Bouvier's Law Dictionary. whereby the defendant was allowed or neighbors. '3 Bl. or be hurt. 341."* Under the Mosaic law. or other cause of action by his oath. it good. Litt. or driven away. no man seeing it. comes from the Roman law vadiatio legis. ' own (196) . Coke. was extended to include his right to actually acquit himself of the debt would absolutely swear himself not chargeable and was a person of good reputation. •Exodus.^ The term wager of law. or an ox. in order to prevent an innocent man from being overcome by a multitude of false witnesses.^ The practice is traceable to the Mosaic law which provided that "If a man deliver unto his neighbor an ass. he stood acquitted of the charge. the rule oi practice which now obtains in criminal cases.. that he hath not put his hands unto his neighbors' goods. 295. and the owner of it shall accept thereof. XXII. to keep and it die. or any beast. from the defendant being put in pledges (vadios). was the practice to make oath denying the charge of the complainant and supporting his oath by the oaths of a certain number of his friends of law. Comm. to make oath on the day appointed. upon the lihood of his commission of a crime. of Law.

as well as the sacramentum decisionis. shall here consider. He who waged under the old Saxon pro- cedure. L. called compurgators. 341. into court. 1. of the civil law. as among the ancient Israelites. touching his veracity. took his oath. 9.) . the said A. adjacent to the Eoman Empire. and his suit. he repeated like the following "Hear this. which named was by the oaths of eleven of his neighbors. b. brought with him. ye justices. among his neighbors.* well as among the Eomans and the northern nations. Comm. the Dane." etc. B. Comm.: : WAGEE OP LAW. that I do not owe unto A. usually concluded his answer with the plea containing the formula "And this he is ready to defend against him. de jure Sueon. sum of ten pounds.^ his law. Stiernh. (3 Bl. nor any penny thereof. The defendant who pleaded or denied the charge against him. 3 Bl. c. 28. 197 This method of procedure." etc. or similar practices obtained in ancient Babylon. in open court. as it resembles the canonical purgation of the clergy. in manJohn's "Babylonian Laws. B. The clergy were no doubt responsible for the establishment of the practice in England. the King. Spellman. in a court of law. on a day appointed by the judge and on the day also confirmed the defendant.. He was then placed under surety to wage Ms law. 13. The defendant stood at the end of the bar and was solemnly admonished by the judge of the nature and danger of a false oath and an oath the * ° if he persisted. for by the constitution entered into as a league between Alfred and Guthrun. eleven of his neighbors. as the court of our Lord. 1. 342. c. a man's credit. depended upon his reputation nil debit.

^ •3 Bl. & Wllk. whatever the truth might be men then did not sit in trial of issues —for juryas today— ^while the oath helper —or compurgator. or in actions of detinue. or on his fidelity. The de oath. The compurgators acted rather in the capacity of jurymen than as witnesses. himself. 295. Lltt. Lltt. B. in all actions of debt. Lib. Pollock and Maitland's History English Law. . Anglo-Saxons. the of the As this Is the reason assigned 343. their oaths. in their consciences. Yet they differed from jurymen in many important particulars. that he saith the truth. 'Coke. on a simple contract. when the accused made oath of his innocence or denied the charge filed against him. Coke. and the eleven compur- gators testified integrity. ner and form as the said A. In other words. LL Comm. compurgators oath was the same as a verdict. of the defendant. 295. GlanvHle. Comm. that they believed. hy Coke and Blackstone. they swore that they be- was swearing the truth. 9x. to testify to the truth of his principal's oath."® And upon thereupon his eleven compurgators avowed. 140. therefore. efifect 343. Comm. why eleven compurgators were required. • I. 343. but the defense was not allowed to persons who did not enjoy a good reputation among their neighbors. The jury was summoned by a public officer and took an oath to lieved he tell the truth. so help me God. not to what they actually knew. c. 1. merely took an oath 3 Bl. was fidelitate.^ de credulitate or upon their belief in his effect of a verdict for the These oaths had the legal defendant. 3 Bl.198 WAGER OP LAW. Cap. under the old codes. hath declared against me. p. for they swore to their belief.

Pollock and Maitland's History English Law." (3. ed. but in due course of time. cap. as late as 1277.^^ in the seventh century. 600. note." such as we see today. . 16.^^ By the laws of Wihtraed. "Superstition and Force. to defend him by their oaths. his kinsmen were vitally interested in and it is but natural that they proffered their help as oath-helpers for him. where this was required.*' The only obligation recognized by a defendant in either a civil or criminal case the injured party and no responsibility was to was predicated upon a duty owing to the state or to society at large. in Leicester. these compurgators made oath of their firm belief in his oath of innocence of the charge filed against him or of the cause of action set up by the injured party ." 23. in all criminal cases. II.WAGBK OP LAW. " II. Pollock his compurgators custom for a long time. "Lea. and Maitland's History English Law. the oath-helpers were necessarily kins- men of the defendant. the person charged with a crime could summon his family to repulse an armed attack by the injured person and so he took them with him to the court. 636. for the defendant to select from the nominees of the injured person. but it was soon abolished as too onerous a task for an accused person. 21. and a case is recorded. 199 There is authority for the proposition that in the earliest times. except that instead of swearing merely to the good reputation of the defendant." When a person was his acquittal accused of a crime sufficient to result in a blood-feud.) 35. 600. "Laws (3 ed. It was also a p.) Wibtraed. Lea. "Superstition and Force. •II. With the family as a unit. Pollock and Maitland's History English Law. the relatives alone were not required and the compurgators rather assumed the character of disinterested "character witnesses.

as them individually. was required to bring with him Fideles Testes.: 200 the WAGEE OF LAW. IX. But. corroborate his denial with the oaths of twelve. as of proof for the defendant in civil suits. prior to Magna Charta.^^ but a mode in this the author must have meant to limit the state- ment to defenses only. and the vacancy occasioned by either of these cirto each of cumstances not filled up. ley. Litt. if the tenant thus completely disprove the summonses. in his History of English Law.^'' " III. any one who waged his law. king or an accusation by his own simple asservation. ad voc. in England. "Les Termes de la Ley. 2 Inst. besides the prin- cipal." in describing the same ceremony. answer to the action. or shouJd the person of either of them be justly excepted to. and the thane or a bishop could rebut priest by the simple oath. 44. . Should it happen on the day appointed that either of the compurgators fail. " Glanville. he shall. in a court of record. on the same day. immediately lose his seisin.. the tenant shall. that Glanville does not mention the Mr. expressly states that the number of compurgators was twelve. Reeve's History English Law. 294. "Coke. "Coke.^^ and this learned author intimates that the number of compurgators was eleven. on account of his default. 295a. chap. for Glanville expressly describes the proceeding by the tenant."^* According to Sir Edward Coke. wherein he observes "If he should deny all the summonses. Eeeves. 168h. says wager of law. he shall.. Book I. while the laity generally were required to undergo the formal procedure of waging their law by the regular number of compurgators. Litt." while the author of "Les Termes de la Ley.

='Note Book. constituted for that purpose.^* and during this period it was even allowed by way of defense in an action of trespass. 201 Bracton advises us that it was not necessary that the compurgators should be of the same rank as the principal.WAGER OP LAW. 1436. Bracton. he states that the land was not to be taken out of the tenant's possession before the tenant had waged his law. personally. 477.^^ that the defendant had not wrongfully detained or distrained the plaintiff's cattle or other animals. provided they were trustworthy citizens/^ and. 742. Note Book. pi. 7. 156. . "Bracton. 396. pi. as a physical condition. 366a. 1097. Note Book. nor if he failed in waging it. treating of the when wager of law. such as waste. pi. 410a." And he states that the tenant could not wage his law by means of an attorney. for if compurgation were allowed in such "Bracton. "Ante idem. fol. by any man. 741. 366. in actions by tenants. '•'Note Book. wager of law was the normal mode was then the ordinary procedure for establishing that one had never been lawfully summoned to appear in court . compurgation was not allowed to dispute evidence of offenses which were apparent to the senses. but was allowed to urge this plea. ^'^ cases. which could be observed. "Bracton. pi. fol. 572. however. 410a.^^ that the defendant was not guilty of a breach of a covenant . only by and through himself. 731. =' Somersetshire Pleas. the oath of pi.^^ that a defendant had of defense and it not deprived a guardian of the lawful possession of his ward.^^ According to Bracton.^" In Bracton 's day.

the right of a fendant to wage his law. was guaranteed in all cases I. should be in the presence of the pledges. . v. st. Note Book. during the same reign. "Note Book.202 WAGEE OF LAW. Reeve's History Eiglisli Law. would place a premium on perjury and destroy the best evidence by mere secon- dary proof." it was therefore enacted that "every man should be received to his law. 1. "^® so the wager of law was thus preserved to the citizens of London. the defendant set tiff. against it mere papers. which. where the right existed in the time of Edward the object of the statute being that "many people were grieved and attached by their bodies in the city of London. surmising that they were debtors. by way of reply. at the suit of citizens. civil that the fines payable before the justices. the plainwas allowed to deny the affirma- tive defense cial and to establish his avoidance of the spe- defense pleaded by the aid of oath-helpers. 580. 184. ^38 Edward pi. pi. by people of his condition against such papers. "III. 184. c. fol. ^^ The wager of law was not confined entirely to the if defendant. III. and the creditor should not put the party to plead to the inquest unless he chose.^'^ de- During the reign of Edward HI. in ='Bracton. all cases. though they had no deed or tally to produce them. or verbal testimony as firmly as was previously practiced ia the common law courts. or crimi- 315b. and could be proved so by their papers. to compurgators would be allowed overcome the evi- dence of our senses. for according to this author. 1574. up an affirmative defense.*® But it was provided by statute. however.

Reeve's History English Law. against his written obliga-. 1. 100a. however. 29 Edward III. Litt. for no man was allowed to thus swear away an obligation imposed by the law of the land. of the cases in which it would lie and those wherein it could not be curely that there invoked. 295. Reeve's History English Law. III. for while a defendant was denied wager of law. st. in this reign. "38 Edward III. alleged to be by the hand of another than the defendant. 295. upon grounds of public policy.WAGER OF LAW. tion. III. to be advised of the sum of the before they departed. 203 and the pledges were fine. in the same manner that such plea had long been used.. fraud or deceit. but wager of law was not permitted in charges created against the defendant by the law.®^ he was allowed to wage his law. 44b. . ""28 Edward III. 18..®" The law wager did not seem to be settled so sewas no doubt left. =47 Edward " 38 Edward "Coke. upon the theory that by giving him credit the plaintiff had estopped himself from denying that he was a man of good reputation.*^ and in detinue of charters it was allowed.®* although the charters related to the freehold and ought to be equally as binding upon a defendant as an obligation creating an action of debt. nal. 7a. executors and administrators were not allowed. 295.^^ It was allowed against a receipt. trespass. or for damages for any injury with force. by the plea of non-summons. to deny under oath the obli- c. III. in a suit on a deed.®^ It was denied in cases of contempt. 3. III. Reeve's History English Law. 295. "III. Wager of law was allowed in all cases where voluntary credit had been extended to the defendant..

*^ In the thirteenth and fourteenth centuries compurgators were allowed. l^itt. each backed by six oath-helpers. but a married woman was who was allowed the defense. Coke. 295. with six compurgators for each oath. . was denied his wager of law. or those to under twenty-one years were not admitted take were also denied the wager of law. "Coke. in the in charges of "middle law. so wager did not obtain in actions by the king. or who had pronounced the horrible word. but was allowed. cording to the London custom. Comm. since infants. the defendant was required to swear six times. when sued jointly with her husband and it extended in favor of to be sworn in his own language. or one who had become infamous. "3 Comm." used in the smaller offenses. the king had certain in prerogatives. in a trial by battle.*'^ And under oaths. one who had been outlawed. and "the third law. actions by him." used in mayhem. on the part of a defendant. which prevented the wager of law. 346. Acan alien. in England. even in the most serious charges of felony. 346. in England. a Bl. as a privilege to the defendant. of Wager law was never required. since no man could safely wage law of another 's contracts . gations of their testators.204 WAGER OF LAW. 295. Litt. or attainted for any felony. they the old practice. craven. »"3 Bl. three oaths. in the "great law" used in murder cases.*® And since the wager of law only obtained in favor of those who bore a good reputation for veracity. satisfied the law. as all wagers of law naturally reflected upon the honesty of the plaintiff.

or. English Commonwealth. Pollock and Maitland's History English 117. "Mun. 636. supra. was allowed to either make his compurgation trial in this manner.*^ 59. however.s» 205 by six helpers. 315. 56. so as to allow hanged. was al- lowed at ject to Win Chelsea and in other the English common law.. 92. 300. was not speedily superceded by the trial jury. II.WAGER OF LAW. 321. English Law. according to Pal- grave. a citizen under the "great law. 635. jurisdictions sub- =»Mun. even in murder by cases. single oath. satisfied the In course of time the "great law" was found to be so onerous that the rule requiring six separate compurgators to as many separate oaths by the defendant was if tion him to make his compurgaby one oath. Pollock and Maitland's History "Mun. I. 57. p. *" Gild. . Gild.. p. Pollock and Maitland's History English Law. supported by thirty-six helpers. but any one of these failed to support his oath. corroborated law. Gild.*" And by liable the last of the fourteenth century even when charged with the capital crime of murder. Lyons Dover. II. for as late as the fifteenth century. for by this period the by law jury was beginning to take of England. he was relaxed. at his election. li. II. purgation with thirty-six oath-helpers. to go to trial before a jury of twelve men." its place as one of the fixed institutions in the administration of the criminal The trial by oath-helpers. pp. ii. Law. I. 9Q. Palgrave." which formerly required him to make his compurgation by thirty-six oathhelpers.

as to make him a " *' III. "III. it came to be the custom for the justices to examine the attorney for the plaintiff and other persons and to allow or refuse the wager of law to the defendant. or an account not taken in the presence of auditors. in which case it was not allowed. III. Reeve's History English Law. " 39 Henry 24. that wager of law would lie in an action for board and lodging. VI. near the end of the reign of Henry VI. "14 Henry VL.. 568. It was recognized in actions of debt and detinue*^ and in the action of account. "28 Henry . if the plaintiff had it in his power to furnish the board or lodging at his own volition and not upon compulsion. p.*'' but Justices Priscott and Needham.** but if the defendant had been imprisoned in the Tower and the board and lodging was furnished by force of the obligation of common humanity. By the time of Henry VT. 18. xviii.. we find the cases in which wager of law was allowed still open to much discussion.*^ The theory of denying the wager to cases where an account was had in the presence of auditors was that such an account arose to the dignity of an obligation admitted before competent judges. Heeve's History English Law.206 WAGEE OF LAW. This was by virtue of a statute of the reign of Henry IV. where the wager was held to obtain.** accordingly as the account was found to be an account stated in the presence of auditors. Reeve's History English Law. this would so far deprive the plaintiff of his option of furnishing the board and lodging. decided. 4. VI. c. 567.*® A ing defendant sued upon a debt for board and lodg- was denied his law.

14. during this reign. 570. p. wager of law would lie. 569. Pollock and Maitland's History English Law. 636.. we find that Chief Justice Fortescue decided. but in cases where the service was not compulsory. WASEB OF LAW. "' (Vol. p.. "III.. Reeve's History English Law. for the method followed in such trials. the wager of law in criminal cases had begun to fall into disuse. . 634. Englisli Law. such as plowmen.^"* And upon the theory that an attorney could be compelled by the judges of the common pleas court to render faithful service to his client and was not allowed to refuse such service. II. in their History of English Law. 22. show that the truth is that these actions are older than jury of debt trials. that in an action by an attorney for services rendered in such a court. II. III. at Westminister. 207 creditor of such merit as to deprive the defendant of his wager of law. and servants of husbandry. the defendant was not allowed his wager of law. because the plaintiff had no option to refuse the service. was such that professional oath-helpers were customarily used and such professional swearers necessarily debased the wager of law in criminal cases.®^ By the middle of the fifteenth century.^^ And in the courts of the country districts it got to be a very easy matter for a citizen of bad repute "Ante idem.) p. in an action for wages. shepherds. Pollock and Maitland. Referring to the fact that wager of law was allowed in actions and detinue and the attempt to demonstrate that this was because Jury trials were inconsistent with the rights of the parties In these actions.*^ Where persons were compelled lite to serve by the statall of laborers. in England. Reeve's History "SS Henry VI. no wager of law would lie on the part of defendent.

Lib. produce and his neighbors were afraid to negative the oaths of men who were frequently too desperate to thus antagonize.'* municipal and ecclesiastical courts. note. c. "Jur. both on the part of the person accused of crime and by the general public. in such cases.'" is And while he could not invoke this procedure theft. II. Thesaur. oath-helpers. the old defense had fallen into disuse. by 3 & 4 William IV. 39. and compurgation in the ecclesiastical courts was abolished during the reign of Queen Elizabeth. 18." (3 ed.. "Superstition and Force.) 22. 15.'* Long before its repeal. who came to regard the wager of law. by means of were in his oath-helpers. .. I. and in 1833. all or he had been previously convicted.208 to WAGER OF LAW. "Lea. in criminal cases of the graver sort com" Ante idem. in fenses. although in the king's court. if the stolen a case of other of- goods were found upon his person. 291. 42. "* Ante idem. could avoid Ms punishment.. if he was able to find compurgators who would testify to their belief in his innocence. Prov. While this irrational procedure obtained in England. sec.. '^ This protest against this procedoire was in the Fifteenth century. 13. in criminal cases.^^ and this led to a gradual preference for the trial by jury. regardless of the notorious character of his crime. without being confronted with evidence of his guilt. by statute. Saxon. he was at liberty to thus acquit himself.'^ the wager of law was finally abolished in England. with odium. Art. "=3 and 4 William IV. Schllter.''' and this favorable proits cedure for the criminals continued long after set forth abuses and denounced in the Council of Bale. the accused in the gravest criminal charges.

" Gregor. Dooms of Alfred. affairs that taken in the pulpit. 5).. Lib. the accused performed to the complete satisfaction of the Council. in 1166. Lib. 12. II. cap. Thayer. shows that the was in common use contracts. before a Council of Bishops. was an old AngloSaxon practice. in 824. The custom of acquitting oneself by swearing on different altars. Cap. cap. was concerned decessor into which drove his pre- exculpated himself. as known under the old procedure. LXII. 33.^» But the statute of Elizabeth (38 Elizabeth. was utilized to acquit the accused of to Turning charges. "Older Modes of Trial. either in the ecclesiastical or lay courts of old England.®^ In the dispute which arose.. which in due time. we find. that Pope when confronted with charges that he in the troubles exile. 3. denying any implication in the had resulted in the disgrace of his predecessor. 384. while the defendant could rebut the charge by oaths upon twelve altars. . Turon. or the wager of law. 130. "Jacob's Review of the Statutes (2 ed. the plaintiff being allowed to substantiate his claim by oaths upon four altars. 532.WAGER OP LAW. by his oath. in the sixth century. XLIX. Ixiil. Fleta. between Hubert. purgation is 209 said to have disappeared in consequence of what has been styled "the implied prohibition" of the Assize of Clarendon. II." Essays In Anglo-American Legal History.. while holding the crucifix above his head. sec. in actions of wager debt upon simple some of the instances where the oaths of compurgators. i. No.). V. "Anastas BiWioth. Hist. it was decided that he should acquit himself of the charge by oaths upon three separate altars. ™Pike. Pelagius I.®^ And when Gregory of Tours was arraigned for the use of words which seriously reflected upon Fredegonda. p..®** in 1596. History Crime.

according to the by the oaths of twenty-five knights. or other irregularities. p. in the presence of the king's justices. ten deacons and a hundred and fifty other clerks and ecclesiastics. and settled abbot of Berkeley. that the deed was not done with malice aforethought. "Superstitiott and Force. 335. supported by fifty priests. or in contempt of the king. when accused of simony.*^ In the thirteenth century the earl of Warenne. but under the heat of passion and under such rule then obtaining. I.. to clear himself with the oaths of two bishops and three abbots or monks. when accused of simony. the issue was by the oath of bishop Hubert.®^ Again. for many centuries the common procedure whereby Churchmen. 61. was ordered by Pope Innocent II. "Lea. or his men. . to the complete satisfaction of his superiors in the church. in "Westminster Hall.) 57. a course that was followed by the accused. indeed. and it seemed almost invariably an easy task to find other brothers of the order willing to stand by the accused and render him the assistance of an oath in the belief of his innocence. supported "Spelman. rendered to their un- fortunate companion. tlie bishop of Worcester. in regard to the monastery of Westbury. cleared themselves of the charges filed against them. "Ante idem. slew Alan de la Zouche. ConcU." (3 ed. his by own oath.210 WAGER OP LAW. to escape He was allowed with his compurgators' aid. perhaps because of the frequency of such charges and the uncertainty of the future place the compurgators in and that necessity might a position where they might desire the reciprocal service. the bishop of Trent.^* Compurgation was.

"Year Book. note." she was required to acquit herself by the oaths of thirty-six compurgators. 636. 10. ' ' God help me And when interrogated by the Judge as to how she so. i. Pollock and Maitland'B History English Law. of the year 1202.®^ In April. would acquit herself of this charge. when placed upon her compurgation and was the offer of her com- claimed the right of ordered to defend herself "twelve handed" and she met the demand of the court by purgators. but the justices held that wager of law would lie in a suit for board and lodging. The defendant. she replied: "By God and by my neighbors of this town. ne noon of hem. "Lyon's History Dover. 109.** In 1440.WAGER OP LAW. Agnes Archer was indicted for the alleged murder of Alice Colynbourgh. in a suit for board and lodging furnished the defendant by the plaintiff. Wykes. 1435. Palgrave's Com. 385. in a prosecution under the statute for selling beer under a false measure. cxlx. for the plaintiff." so the charge being one which brought the case within the rule of the "Great Law.. as the report of the case records it: "I am not guilty of thoo dedys. when ar- raigned for this crime entered a plea of not guilty. 19 Henry VI. Cr. with a knife. in this action.*® «°Ann. . case. 25. "Maitland's PI. by declaring. contended that the defendant was not entitled to his wager of law. one Counselor. the defendant trial.** tlie 211 offense to simple man- In the Bedfordshire eyre. ii. at Winchelsea. Yelverton. circumstances as to reduce slaughter. II. 61. whom she was charged with having stabbed five times in the throat. 234. ii. 265. Essays in Anglo-American Legal History. II. Wint.

23. "All our law is directed by usage or statute. but not under seal.. in the During the reign of Henry VI. year 1454. one Sebastian Giglis complained to the Chancellor against Eobert Welby. who promised to repay the loan and then when he was sued therefor. In his answer to this plea. qnite a memorable legal battle was waged concerning the right of a defendant. that complain- ant had persuaded a third party to advance a certain money to Welby. while admitting that the practice had been otherwise. however. Welby admitted the loan. at his instance. dissented from this view. Danvers and Danby. so of sum advanced. in a real action. overruled the demurrer to this plea. but set up that he had procured the money for King Eichard HI. 7. . for the reason that. he had waged his law and the result was that complainant had been compelled to pay the loan."''" In the year 1492. holding that the defendant could urge his wager of law in a real action. to Welby. so that we should adjudge according to the use. who had received and used the money and that the receipt given was a mere memorandum of the transaction. much as the minority frequently dissent in modern times and Moile and Ayshton earnestly pressed their views upon the majority of the court. Chief Justice Priscot and his associates. and he attempted to wage his law to "Year Book. by the creditor. it has been used that no one wages his law in trespass.212 WAGER OF LAW.. and the contrary in debt. The minority of the court.. 33 Henry VI. The plaintiff demurred to this plea aijd the justices were divided upon the propriety of recognizing the plea. to wage his law upon a plea of non-summons.

this debt.


The court refused

to recognize the


of law in this case, but held that in as


as the plain-

had paid the debt for money had and received by

the defendant, and since the defendant admitted the

and the receipt of the money, it was immaterial it to another, and adjudged that he should pay the plaintiff, and that no wager of law would

that he had given

lie in

such a caseJ^

In the year 1587 the Star Chamber refused to entertain a criminal charge of perjury against a

man who

was charged with having perjured himself in waging The Lord Chancellor rather dissented from the decision of the majority of the judges and asked if the effect of the wager, based on perjury was to discharge the debt sued for. The judges answered that it was, Manwood, C. B., maintaining that it was because of the plaintiff's folly, in sueing for debt, rather than upon an assumpsit, wherein wager of law would not lie.''^ In his report of Slade's case, in 1602, Sir Edward Coke remarked that the court would not allow a man to wage his law, until the court had admonished both the principal and the compurgators and upon due exhis law, in a prior proceeding.

amination as to their qualifications and the merits of
" Cal. Proc. In Chan, i, ccxx-ccxxii. In Spence's Equity Jurisprudence, this case is cited as one of the notable cases which finally helped to bring about the repeal of the law wager. " Goldsborough, 51, pi. 13; Doctor and Student, ii. c. 24; Thayer's "Older Modes of Trial,"

Anglo-American Legal History,

p. 388.

In the persecution of the reformers, in 1527, under



Margaret Cowbridge and Margery Bowgas were allowed to acquit themselves by the oaths of compurgators, although there were several witnesses against them, and the compurgators comprised several


in the




the cause, in order to ascertain

the case

was one

wherein wager of law was allowable^*
Several cases came before Chief Justice Holt, during
the latter part of the seventeenth century

and some of

the cases, which have been noted, will be briefly re-



Company of Glazier's Case, which arose in Company sued in an action of debt and the defendant waged his law. Counselor Northey appeared for the Company and when the defendant appeared
In the
1699, the

with his compurgators, he insisted that


he swore false-

the court did not have to receive his

wager of law, but

to this contention. Chief Justice

Holt replied:

"We can

admonish him, but
not hinder


he will stand by his law,
it is


a method the law allows."

Plaintiff's counsel then insisted that such a holding

would be a dangerous precedent, because
to extend the practice of sueing


would have

the legal effect of compelling litigants sueing in debt,

upon an assumpsit

further, but the doughty Chief Justice replied to


argument that "We will carry them no further," so the wager of law was received, because it was a "method the law allows."^* The Chief Justice practically reversed his holding in the Company of Glazier's Case, two years later, however, for in exactly the same kind of an action of debt, arising on a by-law, in London vs. Wood, the court refused to entertain the defendant's plea of wager of law, remarking that the plaintiff's counsel in the Company of Glazier's Case (Northey), had yielded too
"Slade's Case, 4 Rep.



of Glaziers' Case, 2 Salk. 682.





—although he

it is




an earnest

counsel can do, to urge his plea and then except to the
court's action,




decision, the court observing that "It was a gudgeon swallowed and so it passed without observation, meaning that a bad precedent had been recorded because not strenuously enough objected to.''® In this case, the action was on a city by-law, for




the penalty provided for the refusal of the defendant
to serve as sheriff.

the defendant offered to

According to the custom of London, wage his law, with six good


and reputable compurgators, but to this plea the plaindemurred, and in considering the issue of law, on the question of the right of the defendant to wage his law, in such an action. Baron Hatsell reviewed the older decisions bearing upon the defense of wager of law and maintained that it would lie in five certain cases only, first, in debt on simple contract, which is the common case; secondly, in debt upon an award, upon a parole submission; thirdly, in an account against a receiver;
* '

fourthly, in detinue,


fifthly, in

an amercement

in a

court baron, or other inferior court, not of record.

Lord Holt repudiated

the reasoning which limited

the wager to any specific classes of actions, but main-

made to depend growing out of the very nature of the cause of action and not the mere class to which it might belong.
tained that the wager could only be

upon other

"12 Mod.



In Gunner's case, in 1708, the plaintiff took a non-suit when the defendant was ready to wage his law. Jacob's Review of the Statutes,
(2 ed.)



In the course of his opinion in this celebrated case,

he observed:
is the right difference, and not that which is the actions, viz., that it lies in one sort of action and not in another; but the true difference is when it * * * is grounded on the defendant's wrong; fQj. if debt be brought, and the foundation of the action is the wrong of the defendant, wager of law will not • * * lie. Tiie secrecy of the contract which raises the debt is the reason of the wager of law; but if the debt arises from a contract that is notorious, there shall be no wager of law."'^®


made in

The great Chief Justice was far too independent to be bound by the dictum of some previous case, which did


itself to

him, according to the touch-

stone of reason or logic.

He had

a naturally inquiring

mind and sought


go deep into the mysteries of things.

Eefused credence

the absurd or allegiance to an

arrogant authority and was too broad to be bound

by mere doctrine, but of course could only judge
cording to the standards of his time.


This decision marks the trend of judicial thought of
the period to further limit and deny the

wager of


because of the fact that it

was becoming

to be con-

sidered contrary to the prevalent sense of right of the
vs. Wood, 12 Mod. 669, 679. This opinion of Lord Holt, wager of law would not lie, unless the deht was a secret debt, is based upon the law, as stated by Sir Edward Coke, for he says: "The reason wherefore. In an action of debt upon a simple contract, the defendant may wage his law, is for that the defendant may satisfy the party in secret, or before witnesses and all the witnesses may die." (II. Inst, 45.) But of course this same plea of payment would be good, whether the debt arose on contract or in parole, and the same reason would obtain for perpetuating the testimony, and this illustrates how an erroneous custom will live upon irrational




great mass of citizenship, to permit one
ficiently elastic in his conscience, to


who was


swear away the

debt or obligation of another, just as formerly


to be regarded as wrong to permit the accused in a criminal case, to set aside the public law which he


had violated, by means of the oaths of compurgators. During the age of Bracton, the defendant, who was incarcerated in jail and attempted to deny the obligation for his board and lodging, by the wager of law, was held incompetent to wage his law, in such a case, because it was counter to reason to permit one to be thus defeated of an obligation which he had recognized, based upon feelings of common humanity. In this opinion of Lord Hort, it was counter to his idea of right, in the case of London vs. Wood,'''^ to permit the wager of law, to avoid an obligation which was not merely secret, but notorious and where the recognition of the right to wage law, would result in a wrong upon the other party. The real reason for this limitation of the right, however, was that the procedure itself was wrong and the common sense of the nation was becoming aware of the fact and thus the courts
for one reason or another, reached the conclusion that
this or that case

was not one wherein

the right could

be recognized, when, as a matter of fact, with the growing popularity of the right of trial by jury, this old procedure was eternally at war, since the former institution

impartial men,

was based upon the disinterested judgment of who were assembled to carefully weigh the issues and pass judgment according to the right,
"12 Mod.

whereas, in the other procedure interested men, through



ties, were led to approve the course of a neighbor or a friend, however wrong his object might be, and assist him by the cor-

the influence of friendship or other

roboration of his oath.


century after this leading case of London reasons
to the


Wood,^* however, in which Lord Holt and Baron Hatsell differed as to the

why the

right to



law should be denied
ly enforced

defendant in that case, the

was recognized in England, although not expressby the court. In 1805, the case of Barry vs. Eobinson,''^ came before the English Court of Common Pleas and the Counsel for the plaintiff in his presentation of his client's cause before the court, said: "If a

man were now
would refuse

to tender his


of law, the court

to allow it," as the counsel considered

that this procedure


entirely obsolete at that period.

But the reporter
that' to this

of this case, however, advises us

statement of counsel, the court demurred,

or, in the language of the Keporter, -"This was denied by the court." The last recorded case wherein this old defense was attempted in England was in the year 1824, in the case of King vs. Williams,®" but as Professor Thayer observes, in his "Older Modes of Trials,"®^ the wager of law at this time was "a discredited stranger, ill considered. This was an action of debt, upon a simple contract, a case wherein the wager of law clearly applied, under the old practice. The defendant pleaded
' '

"12 Mod.
"I. B.


& p. (N. ™2 Barnew & C.
History, 391.

P.) 538;

4 D.




"V. Harvard Law Review;


Essays In Anglo-American Legal



"nil debet per legem." Counselor Langslow appeared
for the defendant and after filing this plea, asked the court to assign the


of compurgators, for the

reason that

"The books


doubtful and this

species of defense

not often heard of now."


requested rule, to assign the number of compurgators
to the

defendant was refused by Abbot, C.





court will not give the defendant any

assistance in this matter.

He must

bring such number

of compurgators as he shall be advised are sufficient."

upon the theory that everyone is presumed to know the law and that the court would not assist a
litigant in the perpetration of a




might be presented

in the robe of regularity,


good enough. But according to the ancient report of this case, even as Banquo's ghost dispelled the banqueters, when it was apparent to Macbeth 's fervid imagination, so this recourse to the old obsolete wager of law, which allowed an adversary with his friends to swear his opponent out of court, caused the plaintiff in this case to abandon his cause, for we are advised that: "The defendant prepared to bring eleven compurgators, but the plaintiff abandoned the action."*''' Wager of law was several times invoked in the courts of the United States and we find that the Supreme Court considered the nature and limitations of the
practice, as late as the year 1823, in the case of Childress, plaintiff in error, vs.

Emory and


wherein Mr. Webster, attorney for the plaintiff in error, in a suit on a note, urged before the court that
"King vs. WilUams, 2 Barnew. & C. "8 Wheaton, 642; 21 L. Ed. 705.
538; 4 D.




it is perfectly clear that it cannot. "Palmer's Rep. on any species of simple contract. Justice Story. of their claims as resident merchants and this may be seen in Godfrey and Dixon's case. superceded by the action of assumpsit. that " In an action of debt by a merchant stranger. On the English law. founded upon it. Hoffman. debt has been now is . the courts were strongly disposed to rescue commercial transactions and dealings from this species of trial. which cannot be "The wager * * * safely disturbed. And Mr. the defendant was not permitted to ivage his laiv. have survived. it was presumed. since the establishment of the state of Tennessee. but many rules of and pleading. in disposing of the case. could not so easily obtain the requisite evidence. as the testator might have waged his laiv. . whether the wager of law was ever introduced into the common law of our country by the emigration of our ancestors. Even in those early times. contra. Fleta. 136. for the defendant in error. argued. in which. which none can do who defend in a representative character hence it is that in the case of simple contracts. inter alia decided "Now. whatever may be said upon the question. as the testator could not have waged Ms law. The constitution of that state has expressly declared. that the trial by jury shall remain inviolate and the constitution of the United States has also declared that in suits at common . practice of law has ceased.: : 220 WAGEE OF LAW. and particularly in the case of foreign creditors. who. and have become rules of property." To this argument. his executor is not deprived of any defense which might have been used by the testator. it clear that debt cannot be maintained in this case. 14."** . have had a legal existence in its jurisprudence. Mr. as may be seen by the intended operation of the statute de mercatoribus.

in 1783. necessarily. in the struggle for right. II. or wager of law. is now completely abolished. law. 1783. So that the wager of law. action on this note. Ed. "Superstition and Force. land. we shall arrive. instead of more "8 Wheaton." Mr. o. J. "Webster's defense of the w\ager of law. we apply the rule of the common law. that the action of debt does lie against the executor. 713. of usury. 675. through the centuries." p. 140. from the pathetic drama wherein the individual was made to assert his right. then. of . to the pres- ent case. by statute in Mass. was held not to obtain. an occasional false note should come down to us. 81. as late as 1811. C. and his case and his client was adjudged to pay the so note of Ms testator. 108) Shaw.." wonder that for centuries. Lea. because the testator could never have waged his law in this case. Columbia. if it ever had any legal existence in the United States. Chancellor Kilty mentions the fact that and that in Marywager law has gone into disuse. (1 Met. Annapolis. (St. (Cooper's Stat.WAGER OP LAW. in his excellent work.) But in Little vs. 1837. p. it is little and true. but does not contend that it had then been specifically abolished. If. the right of trial by jury shall be preserved. Rogers. Kilty's Report on English Statutes. immersed amid the darkness of the dawn of judicial procedure. 403."®^ And to this he lost Mr. Compurgation was allowed in a charge Massachusetts. observes that the trial by jury has been "substituted for the old trial by oath. "Superstition and Force" (3 ed.) mentions the fact that in South Carolina. Car. at L.. 1811. of So. Lea. at the conclusion. an act of the Legislature of 1712 mentions specific English laws as still in force and enumer- ates the law of compurgation. upon the mere wager of law. 221 where the value in controversy shall exceed twenty dollars. Any attempt to set up the wager of law would be utterly inconsistent with this acknowledged right. 55. In Maryland. because contrary to our spirit of law. If true that but ''a hair divides the false 21 L.

which has followed man's course down through the successive generations of the past. human standards to balance the scales of Judged by our own environment." yet ever missing the door which led to the correct ideal. as this grotesque comedy of errors. They seemed to wander "in and out. above. . about. WAGEE OF LAW. However this may be. may seem as crude and barbaric to the spectators viewing the show from the vantage of subsequent centuries." in connection with the perpetual struggle for right. the tvager of law would have much sooner become an obsolete form of procedure. it seems that the quarrels of the Universe of old were gauged far too long by the erroneous standards used in the vain pursuit of This and That. known as the wager of law now appears to us. and perplexed as they were with the many problems of the Human and Divine and intermingling the processes and procedures of the lay and ecclesiastical courts. But in the continuance of the drama of human life. And that with the institution of trial by jury. when we look back upon the judicial farce enacted by our ancestors. in the Wager of Law we have but another "story from of old. as they did. below. brought into existence in the middle ages.222 accurate justice. They labored under new and strange conditions. about which the citizens of the past centuries endeavoured and disputed. this prided institution of our twentieth century. in the uncertain procedure of Law Wager. it is perhaps to their credit that the old tangles of the law were solved as creditably as they were. however.

Benefit or Clebgy. to contemplate some of the customs and pleas that were followed and enforced by our courts. Its rules and doctrines were formed. before the evolution of our civilization own had made the present ideals possible. during the middle ages.CHAPTEE Engrossed as the profession will VIII. Nothing is calculated to encourage obtained in the administration of the English law. is today with the agitait tion for the betterment of our remedial procedure. however. brush aside the cob-webs and take a cursory view of some of the pleas and lawyers of past more respect for the modern procedure of American and English courts. sometimes prove profitable to turn aside from the progress of our twentieth century procedure and entering the musty lumber-room of the law. than reading the history of some of the unequal and unjust privileges and exemptions which that occupied the time of courts centuries. is There is no doubt but that the English common law the outgrowth of the most enlightened system of jurisprudence that the world has ever seen. The contrast is indeed when we turn from the just ideals of equality and justice that characterize the remedial. for it • represents the best thought of the brightest minds of most progressive people. and although it was generally consistent with the scholastic methods of thought that dominated the civilization's (223) . striking. procedure of our day. imtil a comparatively recent date.

or privilegium clericale. yet. The benefit of clery is an illustration of the engraftment upon this enlightened system of jurisprudence. of one of the old special privileges of a favored class. but the privilege was later extended by the law to all who could read. claimed exemption from punishment for crimes. For many centuries this plea was an important part of the criminal procedure of the continental countries of Europe and still furnishes a curious and instructive part of the history of the laws of England. to visit equal punishment upon all alike who are similarly sit- uated and with the elevation of the standards of justice and equality.224 BENEFIT OF CLEEGT. was the exemption of the clergy from all responsibility to the temporal courts and laws from the punishment legislative by the branches of Government in finally abolished imposed for various criminal offenses. Originally the persons of clergymen alone were held to be exempt from criminal process before a secular judge. the plea was and judicial England and the United States. the general doctrines and princi- ples were applied along with many of the unequal pro- ceedings and special pleas and privileges existing in favor of the higher classes and together with the extremely technical standards. who. thinking world of that period and for the most part. that frequently were nothing but mere fantastic quibbles. as an incident and high prerogative of their ofiSce. The benefit of clergy. it was in thorough accord with proper and just ideals. at the same time. or clerks. Of course such an exemption of a favored class was inconsistent with the object of distributive justice. . as all such were held to be clerica.

but tion it gradually declined. 409. depended largely upon the public sentiment that shaped the policies of the government and the weakness or strength of the individuals holding the reigns of government.. over matters temporal. The educated class belonged to this profession and we owe it largely to them that the Anglo-Saxon law has left us any evidences at all.BENEFIT OF CLEEGY. 225 The privilege had its origin in a claim made by the ecclesiastics. for the entire ex- emption of their order from the jurisdiction of the common law courts of England. for many centuries. . as intellect and educabecame the common property of the masses. the ecclesiastical power had the ascendency. the clergy took a very active part in the legislation and judicial branches of common law. During the Saxon period of superstition and ignorance. in government and they shaped the policies of the governmany important respects. Ch. during the middle ages and the limitation or expansion of the authority of the State or the Church. Benefit of clergy was the immediate outgrowth of conditions contributing to the growth of the English Before the Norman conquest and afterwards.i The question of ecclesiastical or lay jurisdiction gave rise to the most intense jealousies and contests between sovereigns and archbishops and lawyers. Bishops were then the principal members of the courts of law and they instructed the judges in both the spiritual and secular laws and the respective limits upon each. 'Bracton. XII. at a very early period. The growth and development of the privilege is an interesting chapter in the history of the controversy between the secular and spiritual power. ment. fol.

or kind. and Criminous E. to estab- and enlarge the power of the Church. quarrel.. bishops and other inferior churchmen should ignore the letters of the king. II. c. Henry I. "Bracton. while enforcing secular power. with other bishops. lib. he pronounced a sentence of excommunication against all those who had violated similar pro- visions of the canonical laws. as the successor of Becket. superior learning of the clergy resulted in a gradual encroacliment by tbe Cburcli upon the powers of the State. V. in 1253. He ordained. 'Maitland. Pollock and Maitland's History Bng. Archbisbop of ' Canterbury. between king was the Henry and Tliomas tinuous lish fight. II. 344. IX. Reeve's History English Law. that archbishops. in this sujDerstitious period of manheld the terror of excommunication over the heads of the temporal authorities and the State was thus coerced into the gradual consent to the domination of the spiritual authorities.. calling them for trial before secular courts. 447. ' II. H.^ In this civilized age. vii 224.. B. "GlanvlUe. 341.* and before this. V. it seems straiige that the Church would so dominate the State.^ During the reign of Henry II. in 1261. XII. c. over matters secular.. VIII. could not have existed but the Church. waged a con- during the reign of Henry III. 226 but tlie BENEFIT OF CLERGY.. . under the authority of a convocation. p. a' Becket/' Boniface. the juris- diction of the king's court over criminal clerks subject of a memorable. lib. since the State it must have consented to such a power. when clerks or churchmen were brought before the secular courts. De Legibus. XL. p. English Law. Reeve's History p. The Church always claimed Clerics. Law.

The power of the it Church was based upon a theory of Divine Eight and was claimed to be far nobler than power of the Pope extended to the soul. the Church also assumed to exercise authority all times. instead of possessing power to. at to matters spiritual. over bodies by the aid of the State. The power of the Church. the those around whom arms were really held to Church threw its protecting be above and beyond the power of the secular courts. 196. were under the Divine injunction to obey the Church and Churchmen."'' because laymen. its even though degrees were opposed to secular laws. because. "No power was given to laymen to judge God's anointed. but by a gradual encroachment and by compact with the powers of the State. III.* Under the terms of the canonical decree. itself. Reeve's History English Law. the privilege was always viewed with more or less jealousy and considered as a usurpation that was generously tolerated rather than as a part and parcel of the established common law of to this claim.. 'Decret. and as it held the unfettered power of excommunication. p. But notwithstanding the firmness with which the clergy claimed the exemption from all secular interference for the persons of clerks. lib. ought to have been limited. command. tit.BENEFIT OF CLEEGY. 10. as it England. . the power of Princes was limited to the body alone. the being thus jure divino. p. 227 exclusive jurisdiction over all spiritual offenses. whereas. and the general indulgence that the laity gave was by solemn declarations and acts of Parliament. confirmed. 348. The clergy was not without a notable " III. 1. Reeve's History English Law. that of the State.

Benefit of Clergy."^ One guilty of the crime of high treason was not entitled to clergy and the exemption was not granted to those convicted of ordinary misdemeanors. Kings. XXVI. »1 Chronicles. he must have known that he had no power over clerks. peers and fense. gyman was exempted from capital peeresses were discharged for the read. and the word which he commanded to a thousand generations Even of the covenant which he made with Abraham and of his oath unto Isaac. II. without could reading. Criminal Law. " Bouvier's Dictionary. he reproved kings for their sakes. Comm. 624. however. XVI. 1 Bishop's Criminal Law. were branded in the first offense. ch. who hand and women commoners Nuns. 28. 622. 9. for praise. c. because as a secular judge. punishment totie^ quoties. . and to Israel for an everlasting covenant: He suffered no man to do them wrong. Touch not mine anointed. at an early day. 1 Kings. 668. 667. and do iny prophets no harm. while commoners. 16. he cautioned his subjects: "Be ye mindful always of his covenant. were were held not entitled to clergy..^" A cler. the same ' Mirror. 22. I. "1 Chitty. as often as he repeated the same offense for a second. yea. Sees. 15. 228 BENEFIT OP CLERGY. of the male sex. it was recorded that king Alfred had a judge hanged who had executed a clerk. 4 Bl. In King David's psalm of precedent for this position. Also. tit. V." held entitled to their clergy.® Churchmen also found many Bible references as authority for the privilege. And hath confirmed the same to Jacob for a law. Saying. although it might be a wholly different ofBut of the laity. he was hanged.

371. but only in an ecclesiastical court and punishment was governed entirely by that court. By a curious combination of terms. 123b. "Neck-verse. The first verse of the 51' Psalm was the verse most generally read to test the learning of the prisoner and this verse was therefore the privilege called a "neck-verse. but in contemplation of the law. I. Pollock and Maitland's History English Law. a priest or ordinary would present him with a "psalter. depended entirely upon the ordinary demanding the felon as a clerk from the In the time of III. Murray's English Diet. and the neck of the un- fortunate called upon to read this verse depended upon his ability to read it. . p. his In Bracton 's time. p. Edward the recognition "II.BENEFIT OP CLERGY." "Bracton f. 2 Inst. 445. some of the old cases refer to the exemptions women in pregnancy enjoyed in the law. 442. ^=Coke. I.. when the clerk claimed his clergy." because it As decided the fate of the person claiming clergy. 328. Pollock and Maitland's History English Law. Hale's Pleas of Crov/n. even before conviction in the secular court. 164." But before the end of the reign of Henry III. the accused was not delivered until after courts at his conviction. the clerk was delivered when demanded by the bishop's court." he was burned in the hand and discharged. as the monks and other churchmen. after conviction and any time before the execution of the sentence. Diet. as "Clergy of the belly." "Weibster's New Int.^^ and enjoyment of the benefit of clergy. enured for the benefit of the church and not for the nun. 229 the privilege." and if he could read his "neck-verse.^* The rule of law governing the ordained clerk was that he could not be tried in the lay all..^^ was enforced in more recent times.

II. pp. he was denied his clergy. "quod legit ut clericus. he was by Fortes- cue. Kelying reports a case.) . as where he had not the tonsura clericalis or ornamentum clericale. the ordinary where he the King's was fined and the convict hanged and the secular courts assumed the right to judge of the ability of the prisoner to read. upon his arraignment.. the cause was certified to Bench. who could not he was fined. on the theory that he was only a minister of the secular court and not a judge in the cause. the prisoner claimed his clergy. but this was deemed "III. for they made the record. 28. if clergy were refused. charged with larceny. (18 Car'. ideo tradator ordinario" and if the ordinary granted clergy to one or refused it to one qualified. ordinary refused a man his clergy. for Winchester.^^ During the reign of Edward IV. delivered the book to the prisoner and the prisoner did not look at the book at non-legit. But the qualification as to reading if strictly applied at this period. p. 197.230 BENEFIT OF CLERGY.^® if the In the reign of Edward IV. the clerk appointed by the bishop to give clergy for the prisoners. to be entitled to his clergy. where at the Lent Assizes." all. "legit or The court then bid the clerk of assizes not to record that the prisoner read. 59. and the ordinary was fined." the clerk reiplied "legit. and fined the bishop's clerk for so finding. " IV. 198. was able to read. >» 9 Edward IV. for the prisoner could spell and thus put if the clerk syllables together. read. but if a cause were stated which could not be allowed by the law of the land. Reeve's History English Law. Littleton said that refused generally to read. but when asked. secular authorities. was not held. the ordinary was fined and enjoined to receive the felon. Reeve's History English Law.^^ And during the same reign. if the ordinary granted clergy to a felon who could not read.

it during was enacted that the prisoner should not be delivered until he had been burned in the hand. during the reign of Henry VI. . which the other practice denied to the crown and hence. which was a necessary part of the procedure of the privilege of clergy. 231 prejudicial to the prisoner. IV. it was decided. Common Pleas Court. for he thus had no chal- lenges and "was denied the right to a trial on the merits and even if innocent of the crime. the to plead to the merits and then. he was required convicted. "Littleton. Reeve's History Bnglisli p. This practice served the double purpose of giving the prisoner the benefit of a trial on the merits and giving the crown a chance at his estate. Chief Justice of the if he could not read. was not ordained by the statute (IV. 164. 2 Inst." it was afterwards generally fol- It was customary to keep a register of clerks-convict and persons attainted. was hanged. near the end of the reign of Queen Elizabeth. ''"IV. 60. Sir John forfeited. By statute. the prisoner could not be discharged until the reign of Elizabeth (18 Elizabeth).^'* The burning in the hand. on arraignment. on a subsequent arraignment of the offender. 466. lowed. that the Queen could pardon the burning in the hand.) as a punish- ment. Henry VII. so that such persons might not have their privilege more than once. if crown took his estate by forfeiture and he was then allowed his clergy. notwithstanding the statute referred to. but merely to enable the court. and in Biggen's case. and his estate was Priscott. but unless she had done so. to ascertain if the defend- ant had been accorded his clergy. Reeve's History English Law. changed the practice and when the felon claimed his clergy. p.BENEFIT OF CLERGY. Law.

one of which was clergyable and the other not. the most merciful side should be taken and though the felony upon which he was convicted last was committed after the other one. 345. Stone had committed two felonies in one day.^^ before his clergy presumed ^»5 Eliz. he should not be arraigned upon the second indictment. as a clerk convict. originating during the fourth is year of the reign of Queen Elizabeth. it should not be presumed that the felony for which clergy was not admissible was committed before the other and in favorem vitae.232 BENEFIT OP CLERGY. seven of the thirteen deciding that since he had been once placed in jeopardy. He was first indicted upon the crime which was clergyable and being found guilty. interesting as showing the effect of clergy upon crimes committed preceding the granting of clergy to the criminal. in the hand. and must remain perpetually in prison. Dy«r. p. ^ V. V. by a divided court. and the effect of his clergy was to discharge him of all preceding felonies. as this was the duty of the court. Reeve's History English Law. Having been adjudged guilty at a subsequent session upon the non-clergyable felony. the conviction on the clergyable offense was set up in bar and was held to be good. he had been burned. p. 346. as he should have been arraigned for all his offenses was allowed and the court would be to have had them in mind. yet since the felon had suffered judgment upon the former conviction. 50. was admitted to clergy and the judgment was recorded.^ ^ The case of one Stone. Reeve's History English Law. . because the effect of the discharge on the conviction was to acquit him of all felonies committed before the conviction.

27 N. " II..BENEFIT OP CLERGY. II.^^ The clergy had so far established the exemption of their persons from corporal pains. 421.) 139. At ' ' this time the benefit of clergy was but the privilege of ordained clerks" and the legislation of king John's reign shows that the exemption was slowly and by degrees ordained as not applicable to the crime of high treason. when latter the prisoner conviction. was to be immeclerks could be tried for all diately delivered. as at a later period. to the court Christian.^* While the exemption to the clerks of the twelfth century was much broader than ton's later. . 501. in Stone's case. Reeve's History English Law. C. or for any other crime. same as a pardon.^" During the reign of Edward '" ''* I. -' Bracton. 401b. if demanded by the ordinary. 130. Carroll. 233 The judgment of tlie court. taken for the death of a man. that during the reign of Henry III. p. pp. without inquisition.^* be urged the was granted to him. Pollock and Maitland's History ETnglish Law. f. was brought up for judgment on the ' ' The distinction between clergyable ' ' and ' ' unclergy- able" crimes was not so clearly defined during the thirteenth century. Pollock and Maitland's History English Law. during the thirteenth century minor offenses and in Bracday clerks were answerable to civil process the same as the laity . the practice estab- state vs. 422. case. (5 Ired. it was enacted that a clerk. to make canonical purgation and to estab- lish his innocence or stand convicted. I. p. as to the effect of clergy lowed in an early North Carolina court held that if offense committed before clergy this claim should was folwhere the the defendant claimed clergy for an upon a preceding crime.

convicted before any secular justice. chapel. for treason 3) henceforth or felony. Reeve's History English Law. 2. the clergy complained to Parliament that a certain knight. the benefit of clergy was taken away from persons convicted of desertion while under enlistment as soldiers of the crown and the privilege was likewise taken away from those convicted of petit treason. by the terms of which it was provided that all manner of clerks. . without putting them to their canonical purgation. touching other persons than the king himself or his royal majesty. and this statute recited this privilege and simply admonished the prelates not to liberate those so delivered to them. Reeve's History English Law.. De Clero (25 Edward III. without any impeachment or delay. 573. (7 Henry VII. rob or murder any person in the king's high" II. The exemption from punishment for crimes was given a most decided set-back by the statute 4' Henry VIII. 197.: 234 BENEFIT OP CLERGY.^^ During the reign of Henry VII.. 1). of the clergy c. entitled to clergy. or who. had been hanged and quartered.. could be delivered to the ordinary.^^ In the 25' year of Edward III. on a judgment of treason and that a priest had been hanged for killing his master. =°'III. lished during the reign of Henry III. These complaints led to the enactment of the statute st. in any church. should freely have and enjoy the privilege of the holy church and should. was recognized by act of Parliament (Statute Westminster). p. c. or hallowed place. that a clerk. con- victed of felony. of malice prepens. p. be delivered to the ordinary demanding them. which provided that "All persons committing murder or felony. as well secular as religious.

"way. so that real clerks were subjected to capital punishment for felony. 468. wilful burning of a dwelling house. Henry "IV. Reeve's History English Law. c. c. 1. or barn. taking away the benefit of clergy from persons convicted of petit treason. and this was a serious blow to the exemption.. " IV. p. for a clerk convict to break prison and escape. child or servant being then therein. his wife. malicious murder. This statute contained no exception of those actually engaged in the holy orders and this led to the most determined resistence on the part of the clergy of the kingdom.. c. without clergy. Reeve's History English Law. Reeve's History English Law. p. after conviction of the offenses named. wilful. 1). by statute 33 463. helpers. or rob or 235 murder any person in Ms house. for though the lives of the clergy were spared. to imprisonment and even to death.^^ During the same reign. IV. stood firm. maintainers or counselors of such felons. It was also made a felony. =° .' BENEFIT OP CLERGY.^" By 27 Henry 17. 458. if the ordinary so directed. yet they were to be condemned VIII. robbery. except only such as were within the holy orders. the owner or dweller of the house. shall ' not be admitted to clergy. persons under holy orders were to be judged the same as those not under holy orders. the same as nominal clerks. 466. and the like privilege was denied to the abettors. and during the same reign another statute was passed (23 Henry VIII. where grain or corn was stored. and put in fear or dread.. and by 28 Henry VIII. pp. however.^" Henry VIII. clergy was also taken away from servants who embezzled their master's goods or property.

^* case of Doctor Horsey. BENEFIT OF CLERGY. 346. Chancellor Bishop of London. but they caused a charge of heresy to be lodged against Doctor Standish. April 1790. and. clergy was denied to persons practicing witchcraft or enchantment and to those making prophesies upon coates of arms. 30'. sec.^^ Benefit of clergy until the year 1825. In North Caropunishment by burning in the hand was abrogated. c. c. was prosecuted and adjudged guilty of the murder of John Hunne. 6. °* American Com. p. it was provided that the benefit of clergy should not be allowed upon conviction for any crime where.. in Kentucky. by The celebrated to the statute. in Doctor Horsey 's case. the lina. the benefit of clergy statute. until he had been burned in ' the hand. Kentucky. in that country. Reeve's History English Law. is one of the most interesting that has come to the writer's attention. p. during the reign of Henry VIII. the by was abolished. Reeve's History English Law. 1 to 14. 7 George IV. in 1816. when. it was provided that the temporal courts should not deliver the prisoner.^^ Before the reign of Elizabeth. as an advocate of the temporal power. ''IV.236 VIII. by Act of Congress. in England. badges. In the United States. ^ V. but by 18 Elizabeth. . 468. the clergy con- cluded not to wait upon the procedure of the temporal courts. p. the granting or recording clergy had been reduced to a mere formality.. in 1847. was not abolished. etc. 28. by statute. who. On account of the well known position of Doctor Standish. 407.. this ancient privilege of the middle ages was abolished. punishment was death.

King David. that he enof Doctor Horsey."^^ This decisive stand of the King concluded the agitation concerning the conflict of authority over the case Doctor Standish was discharged Doctor Horsey was so far heresy. nolite tangere Christos meos. in as ample a manner as our predecessors have done before us. to 185b. 180b. when Cardinal Wolsey threw himself at the king's feet and beseeched him to withhold his decision until the Pope could be heard from. to distinguish them from the unbelievers. 458. pp. Reeve's History English Law. however. The clergy and the justices of the King's Courts had a notbecause of able dispute concerning the Ms power of the temporal courts over the persons of clerks. 237 advocacy of tlie power of the temporal courts over the persons and punishment of clerks. therefore. we are king of England. . Those who had proceeded against Doctor Standish were adjudged guilty of a praemunire. while the temporal justices argued that these were the words of at all. of charge from the rescued from temporal power.: BENEFIT OF CLEKGT. the clergy contending that the benefit of clergy was established by the express command of Jesus Christ. and. decided that the arguments of the supporters of Doctor Standish had not been answered by the clergy and concluded with all of his accustomed firmness "By the order and sufferance of God. as well in this point as in others. and the kings of England who have gone before us never had any superior but God alone. know that we will maintain the right of our crown and temporal jurisdiction. not of the Saviour and that the "anointed. 462. = IV." referred to the believers. however. King Henry. then abroad in Palestine. in the words. Kielw.

it to convince Henry against its power. in the case lost none of its authorit}' the temporal courts. giving to the same Gabriel Spencer. 458. in October. the friend of "gentle Shakes- peare" and the scholarly Lord Bacon.^^ Although the clergy thus failed VIII. 1598. tain cases. 180b. " IV. to 185b. pp.238 BENEFIT OF CLEEGY. of the true foundation of of Doctor Standish. which he then and there had in his right hand and held drawn. in the case of Doctor Horsey. was the gifted Ben Jonson. joyed the free custody of the house of the Archbishop of Canterbury. until the popular clamor had subsided. but its jurisdiction and the benefit of clergy was practically conceded by the judges of the king's court and the privilege continued to be recognized until the 23' year when he waged war against the whole papal authority and passed an act taking away the benefit of clergy from murder and robbery. "with a certain sword of iron and steel called a rapiour. 462. it was confessed and the defendant was discharged. had. 463. Reeive's History English Law. in and upon the same Gabriel's right side a mortal wound." One of the most distinguished men known to have been accorded the benefit of clergy. in a duel. of the price of 3s. Reeve's History English Law. in cerof this king's reign. for the manslaughter of Gabriel Spencer. He was arraigned at the Old Bailey. when he was privately surrendered to the court of King's Bench and having entered a plea of not guilty. feloniously and wilfully struck the same Gabriel then and there with the aforesaid sword.. p. . ^''Keilw. The indictment charged that the defendant. in England. IV. of the depth of six inches and of the bredth of one inch. at Shordiche.

and delivered according to the form of the statute. as no after his death." etc. that he had been branded on the left thumb with a T. in the case of United States person convicted of bigamy. 118. in the case of United States vs.*" vs.) (London Globe. 137. James Otis. "4 Cranch. C. should be burned in the hand and recognized for good subsequent behaviour. case further shows that the like a clerk. =' It is reported that the wily cold steel in branding him. and discharged. « 2 of Cranch. suc- cessfully urged the exemption in favor of Massachusetts soldiers. the Federal Court '" held. "American Commonwealth. and. 239 of whicli mortal wound the same Gabriel then and there died instantly. C. Jernegan*^ This original old musty indictment was recently unearthed at Sessions House. "^s prisoner _ The record in this same when arraigned. C. April. Knapp's "Sketches Eminent Lawyers. asked for the book." which meant that the author of "Every Man in His Humor" had claimed and been accorded the benefit of clergy. "Confessed the indictment. generally known as the Tyburn T. Alexandria. by a representative of the London Globe and was delivered to the Council of Middlesex county the old for preservation. during the Colonial period and the great patriot. convicted of pation in the Boston massacre. Massachusetts. in the year 1817. in if able to read. . read was marked with the letter T.*^ that a murder for their particiThe Federal Court decided. was entitled to clergy. Lambert. in London. In the year 1830. C. Ben really bribed the jailer to use marks were found on his hand 1910.^' The benefit of clergy was set up and recognized in many criminal cases in the United States.BENEFIT OF CLERGY.

Law. decided in South Carolina. the same as males. for a clergyable offense. a defendant. 276. Hawks. 1 " State vs. the privilege of clergy was an incident thereto. in granting the benefit of clergy. Bosse. in the same state the same court held that one found guilty of manslaughter could be burned in the hand and also imprisoned for one year. 372. if the State objected because the defendant this objection must be set In State vs. 257. in the case of State vs. Yeater. however. * 11 8 No Car.""^ the same court held that when the defendant prayed the benefit of clergy. Carroll.) see. in dwelling Murph. unless it was expressly taken away by the statute in the year 1855. in 1825. the Supreme Court of that state.*" And in State vs. Hawks. 5 No. "4 Suab.*'^ had before had clergy. up by a plea in writing. " 24 No. Car. having. In the year 1806 the Supreme Court of North Carolina held that females could claim the benefit of clergy. In 1837. 4 No. in 1816 passed a statute abolishing the punishment of "burning in the hand" for clergyable felonies. Supreme Court of North when a new felony was created by statute. 1855. also. Sutcliff. the And Carolina held that creating the offense. it was discretionary with the trial court to dispense with the burning in the hand. (1 147. convicted of burning a *» state vs. Kearney.** held that corporal punishment and imprisonment could not both be inflicted upon a person found guilty of the crime of manslaughter. And State vs. Car.*^ The Legislature of North Caro- lina. that on a conviction for bigamy. construing this statute. Car. Rich. 8 187. . 2 Ired. 53.240 BENEFIT OF CLEEGT. Gray.

Ch. p.BENEFIT OP CLERGY. the same to the benefit of clergy. 8 Rich. and before the sentence of death was pronounced.** In Indiana.^" in the But same state. after a trial had before Judge Buckner. "Fuller vs. 4 Coll. Ky. in 1820. another person convicted of arson in the nighttime. Westbury and Henry Esmond. they both prayed the benefit of clergy and the Supreme Court held that they were entitled to clergy. the punishment to be assessed was death and the judge believed the defendant innocent of the crime for which he had been convicted. 276. was in a Kentucky case. in 1859. 246. Under the statute. Commonwealth vs. " Commonwealth " =' vs. Cas. and in Minnesota. Col. 21. State. That Thackeray was thoroughly familiar with the law governing the Benefit of Clergy and the nature of the punishment Inflicted on the culprit pleading guilty of an offense clergyable at common law. in 1795." .^ ^ was recognized. the was held entitled same state. in the United States. 114. the Supreme Courts of those states held that the benefit of clergy did not and never had existed in those com- monwealths. Bilansky. 560. 1 Blatchf.*' and in the year 1787 the Supreme Court of Virginia held that the crime of arson was not a clergyable offense in the courts of that state. The defendant's counsel claimed the benefit of the last cases where clergy " state vs. 63. 2 Am. two persons were convicted for stealing a horse. 1 Gil. 169. Posey. 241 house. One Law. Stewart. was held entitled to clergy. State vs. in 1793. in Bonner County. American Com. the Earl of Warwick. 3 Minn. at Glasgow. Bosse. 1 Va. in his interesting plot.^^ A negro was convicted of rape upon a white woman. in "Henry Esmond. and in year. 407. 109 . Dec. is evidenced by his presentation of the plea in favor of Lord Mohun.

The privilege had neither justice nor fallibility of all institutions of . There is no doubt but what the benefit of clergy bred operated. were strictly respected. similarly situated. these privileges were very dear to English- men and on the whole. were subjected to. but the random cases mentioned will show the general recognition of the privilege until comparatively recent times. as a great in the impartial enforcement of the crimi- much crime and impediment nal laws of England and the United States. of the Judged by modern standards. for centuries. from the punishment that others. As a doctrine of the common law. at an early period in the history of the world. Like the established by the early kings. at common law. it illustrates the man. enlarged to include all those who could read. These instances are not nearly all that could be found in England or the United States to illustrate the application of this exemption from crime. the exemption clergy. the benefit of clergy that the law's redress of Saxon owed its existence to the fact wrongs was. but it must be accepted as a mere incident of the barbarous period when the privilege was applied. seems an anomaly in the administration of any system of justice.242 of clergy for BENEFIT OF CLEEGY. him and the defendant was found able in the to read the Constitution of the United States and he was accordingly burned hand and discharged. who were not so fortunate as to be able to read. inadequate to protect the educated class from the ambition and cupidity of the race and in the dangerous games for place and power then waged. right of sanctuary. both in and out of the holy orders.

and urge us present laws. We should congratulate ourselves. witchcraft and enchantment. but. like the practice of witch- enchantment and the belief in ghosts. Because of such an unjust practice the common law is is not to be condemned. for these beliefs were prevalent at that time. to the improvement of our . 243 reason for craft. own liberal con- founded upon a more exact idea of distributive justice. its foundation. any more than the literature of the same period of English history. that with our stitution. The Benefit of Clergy was an institution of the "myriads who. because of the intro- duction of ghosts. before us.BENEFIT OF CLERGY. But that this institution continued until the past cen- tury. into the literary masterpieces of the past centuries. so prevalent during the same period. to the jurists of succeeding ages." No doubt some of our institutions and procedure. the ignorance and superstition of that civilization. "upon this chequer-board of nights and days. pass'd the door of darkness through." which existed until the present century. it owed its existence to. that come and go. ought to prevent our entire satisfaction with our own procedure. we are able to "grasp this sorry scheme of things." will seem equally as unjust and ridiculous as this institution of the past now appears to us.

then I will appoint thee a place whither he shall flee.) . sometimes called the priv- ilege of asylum. taking refuge in certain consecrated places. was the exemption afforded criminals. from the ordinary operation of the law of arrest. Moses appointed six cities of refuge."i ' The six cities appointed in the boolt of "killeth Numhers were only for those who (244) any person unawares." Moses' law thus distinguished between murder on malice aforethought and mere manslaughter.CHAPTER The IX. shall it is be surely put to death. In the book of Exodus the old Mosaic law was stated to be: "He that smiteth a man. who man unawares." in order that the slayer might flee thither which should kill his neighbour unawares. he might live. Privilege of Sanctuaey. and that fleeing to one of these cities. as call it we and according killed a to the ancient law of the Israelites. and hated him not in times past. there were cities of refuge to which a felon might flee. The institution is no doubt older than the time of Moses and we find frequent references to it in the early books of the Bible. but God deliver him into his hand. written: "And if a man lie not in wait. three "on this side of Jordan" and three "in the land of Canaan. so that he die." (xxxv. privilege of sanctuary." but in the same book.

9. Adonijah feareth king Solomon. for. that whomsoever killeth any person unawares. the avenger of blood pursue after him. I. Behold."^ lies in wait. 'Joshua. until he stood before the congregation. and and went and caught hold on the horns of the altar." idem." arose. ^ "And Adonijah "These were the cities appointed for all the children of Israel. lo. he hath caught hold on the horns of the altar. and for the avenger that sojourneth among them. XX. 4. saying. and shall declare his city. And Solomon said: If he will shew himself a worthy man. cause in the ears of the elders of that take him into the city unto them and give him a if that he may dwell among them.. . man who past. 5. but if wickedness shall be found in him. and not die by the hand of the avenger of blood. whom it is he hated not in times provided that cities shall In the book of Joshua that doth flee to "When he one of those stand at the they shall place. saying: Let king Solomon swear unto me today that he will not slay his servant with the sword.PRIVILEGE OP SANCTUAET. from the man who "killeth neighbour innocently. then they shall not deliver the slayer up into his hand because he smote his neighbour unwittingly and hated him not beforetime. entering of the gate of the city. he shall die. •Chapter. for first book of Kings :* it is recorded in the feared because of Solomon. 245 Deuteronomy refers shall flee thither that to the case of "the slayer which distinguishing the his he may live ' ' . 52. there shall not an hair of him fall to the earth. might flee thither. And it was told Solomon. "^ find Over a thousand years before Christ we Adoni- jah claiming the privilege of sanctuary to protect him from the wrath of Solomon. 50. Chapter XIX. And . 4.

in the ancient days of the patriarchs was that the ref- ugee should not quit the city of refuge until the death of the High Priest. XX. p. and if the case of murder was established by the "avenger of blood. 1896. 51. vol. The conditions upon which sanctuary was bestowed. The Green Bag. As recorded in the book of Joshua. the elders tried his case." who acted as prosecutor. 50. even though he clung to the altar. wrath more nor less than a claim of sanctuary. and only the great peer out through the darkness of the past. The ever-flow- ing flood of time has swept away all records of the ordi- nary mortals. Kings. on o£ tlie death. or mere manslaughter. the great public grief was supposed to over-shadow all merely private affairs.® "1. to ascertain if he were guilty of malicious murder. at the altar. 422. This case of Adonijah taking refuge in the temple.. however. 4. 5. VIII. one claiming sanctuary must stand at the gate of the city and "declare his cause in the ears of the elders"^. Nimrod. for on this solemn occasion. 'Joshua. in his palace him . for even the hand of Solomon vras stayed at the threshold of such a consecrated place and the sinner taking refuge at the altar was supposed to be surrounded by the protecting mantle of the Great Jehovah. erected a golden statue and ordained that all criminals fleeing thither should be protected and this was a species of sanctuary. no doubt.. the criminal was given up. as a protection against the supposed of Solomon. is nothing This is only one of many thousand similar concrete eases that could be mentioned. of his eldest son.246 PRIVILEGE OF SANCTUARY. if the unwritten history of the unnoticed millions of patriarchial days could be known. for the right of sanctuary obtained generally in those ancient days. 1.

murderers and criminals of the worst kind. 8. Pegge." The privilege afforded these lowly ones soon became a license for the protection of criminals. Jan. 1896. Green Bag. and the temples and churches became reg- ular dens for thieves. as suehJ According to Plutarch and Dr. however. until the demise of the High Priest.^ in the course of time. or the murderers to the magistrates. Pegge. 64. . the debtors to their creditors. Dr. by the Eoman law. p. robbers. 170. vol. "Plutarch. 513. "The Green Bag. he If he departed home. however.PRIVILEGE OP SANCTUAKY. vol. murderers. duly purged from the "city of refuge" before the death of the High was regarded as an outlaw and could be slain by any man. vol.-June. 1896. and the most notorious criminals were protected from the civil authorities and the holy places and temples came to be used as asylums and resorts for the most notorious criminals. "Chambers Journal. p. 44. the right of sanctuary was recognized among the ancient Greeks and the Oratory of Theseus was one of the places of refuge for persons of lowly station. and although. vol. the right of sanctuary spread to Eome. who fled to avoid the oppression of the great and powerful "avengers of blood.^ From Greece. escaped slaves.^" Long ' after the civilizations of the ancient 1867. 8. p. p. the priests refused to deliver up the slaves to their masters. he was retained as "a prisoner at large" in the city of refuge. when he was allowed to return to his fled. 247 guilty of wilful but if the elders found that he was not murder. 423. Jews and Chambers Journal. and public debtors were excluded from sanctuary privileges. of the crime for which he had Priest. 423.

it has been stated that the privilege of sanctuary obtained in England. Papal sanction was expressly given in the year 620. made a law regulating the exemption to criminals of II. p. any very authentic recSoon after the conversion of all the Saxons to Christianity. set apart for purposes of sanc- tuary. as early as the close of the second century after Christ. Ms day and Theodosus to extended the freedom of itself. and in most of the later civilizations evidences of similar customs obtaining. 513. 64. vol. the privilege of sanctuary. in accordance with the early Mosaic law and in civilization is all the countries whose borrowed from the ancient Israelites." Although the fact is not established by competent authority. sanctuary. but the history of the period does not give us ord to sustain that it did.248 PRIVILEGE OF SANCTUARY. extending and recognizing Theodosus. 512. lic places of pub- worship were looked upon as so consecrated that " Chambers Journal. we find Before the privilege of sanctuary was guaranteed by written statute law. in the year 392. 64. which they recognized. as early as the year 324 caused laws to be enacted. the privilege of sanctuary .^ ^ The right may have been recognized as early as this date. from the altar and body of the church which it was previously confined. August. ante idem. there evidence of such a custom. The Emperor Constantine. p. 1887. Vol. was perpetuated in various forms. Grecians had passed away. . to all the buildings and places contained within the outer walls of the consecrated places. the right was recognized by the general usage of the Christian church. '•'Chambers Journal. however.

after which he was delivered to his friends. p. however. June.PRIVILEGE OF SANCTUARY. he was then attainted of the felony. went." so. under the law. than the pax regis. 1867. who "declared their cause in the ears of the elders of the city. Reeves shows that at this early day the pax ecclesiac was more sacred. 249 criminals taking refuge in any of them were temporarily protected ities. but was given an additional period of forty days to prepare for his "Chambers Journal. Vol. 170. on payment of the Wehrgeld. ^1. or to the civil Under the practice known as abjuration of the realm if the sanctuary felon. he authorities. under the Mosaic law. before the coroner and confessed his guilt and took an oath to quit the realm and not to return. p. .^* from the process of the civil author- Unlike the ancient Jews. ante idem. in sackcloth. he was protected from the civil authorities for a period of thirty days. 198. if the prisoner did' not abjure the realm. 44. if he provided his own sustenance. without the king's license. within forty days after taking sanctuary.^* As sanctuary was only extended to those. the early Saxons received even the felons guilty of wilful murder. according to the standing of the person killed. if they paid the Wehrgeld. "Ante idem.^^ Under the old Saxon at the law. Reeve's History English Law. fixed by the officers of the church. for a period of thirty days.. the privilege was not extended for a longer period than forty days and end of that time. the criminal claiming sanctuary Anglo-Saxon to was required confess his crime and declare that he sought the safety of the church to preserve his life. was delivered to his friends. hefore the law.

he was regarded as an outlaw and. p. Speaking of the practice known as abjuration of the realm. Revue historique. institution Revllle contends that the law of abjuration is purely an English and was adopted by the Normans. i. after the usual preliminaries and the punishment inflicted upon those benefit of clergy. p. Britton. he was allowed to claim the and to be discharged. c. 48. Edw. and to there take his journey for some foreign shore. 590. with a cross in his hand." After abjuration of the realm. at an early day. 50. "Reville. if the prisoner afterwards returned to England. 49. without the license of the king." Large numbers of the English felons. L'Abjuratlo regni. to answer for their crime. but an emblem of the protection afforded him by the church. Leg. in their excellent history of English Law. if they did not voluntarily assume this perpetual banishment and suffer the forfeiture of their estate to the crown. to France or Flanders. Saions.^* M.250 PRIVILEGE OF SANCTUAET. from the early AngloPI. 89. 5. unless he was a clerk. " II. were induced to leave England and annually many such "undesirable citizens" took passage from Dover. Pollock and Maitland's History English Law. to the port assigned him. vol. . lie journey and to keep the privilege pelled. in which event. was com- witMn this period. pi. " Ante idem. to repair. when caught. claiming clergy for such a crime as the sanctuary criminal had committed. Conf. 1. 63. say: "The coroner came and parleyed with the refugee. who had his choice between submitting to trial and abjuring the realm. was condemned to be hanged. under the threat of delivery to the civil authorities. Pollock and Maitland. See Cr. by this practice known as abjuration of the realm. as an indicia of his crime. alive. so to do.

the privilege of three nights was allowed the criminal seeking the protection of the church." (Vol. i. that he would otherwise should be withheld from him. II. sought refuge in such consecrated the stripes. 513 Green Bag. 251 During the period of the forty days. 565. . His lands escheated. dressed in pilgrim's guise.) R. judged place. who had been convicted of a capital offense fled to a church. 1. his fate was that of an to the port that outlaw. . Exch. Pollock and Maitland's History English Law. 566. during the period named. 308. to prevent his escape. the township so. the township was required if to watch the church for this full period and because of the failure to do the criminal escaped. was assigned to him.^" In the year 887. in 693. or sanctuary. while the crimwas enjoying his privilege of sanctuary. 423. and left England.. under a statute of Alfred the Great. vol. H. without abjuration of the realm. his chattels were forfeited. King of West Saxony. 64. and by this same proif vision of the law. he -was obliged to pay the If sum of One hundred and twenty shill- he chose the latter course. 8. 590. his life should be spared and if any criminal ad receive. Vol. was amerced accordingly. 541. 1887. Hist. 568. and if he ever came back. wounds. anyone violated the privilege of sanctuary.PRIVILEGE OP SANCTUARY. "I. or bonds. to be flogged. upon the sanctuary criminal. Maddox. p. p. " Chamber's Journal. p. if the coroner did not come for the period of forty days.^® The privilege of sanctuary was recognized by the code of Ina. never to return. and the fifth section of the code provides that if a felon. being bound by his oath. he hurried. by inflicting blows. to enable him to prepare for his safety. pp. the villata where the crime was committed was required to watch inal the sanctuary.

Reeve's History English Law. The outward and next outer boundaries of this circle were designated by crosses of rich carving. diction of the holy orders ess. beside the altar and several of these seats were erected and criminals were protected by the peace of the church. fax ecclesiae. John's as the center. Mirror of Justice. One of these seats of stone still remains at Beverly and fleeing to these seats in the English churches. pp. 198. by civil procthe a criminal who had sought it is protection of sanctuary^^ and certain that the right was not only safe-guarded Toy the law. or practices of the different subsequent kings. the law Saxon laws that he did not became more fixed and definite. I. ^ I. with the other repeal.^* "With the advent of William the Conqueror. To violate the protection afforded by this seat. by the laws of sanctuary. Finlason's '" edition. 5. " Ante idem. ministers of the clmrcli. another at Hexham. note. reports that King Alfred caused a judge to be hanged. but that Ethelred and all subsequent Saxon kings expressly sanctioned the privilege. and guarded by all its sanctity. 198. who had invaded the jurisand removed. was an offense too grave to be compensated by the payment of a mere money fine.^ ^ The Mirror of Justice. whose precincts had been invaded. . or of the shrine of relics. in the time of Alfred. Reeve's History English Law. p. The privilege at Beverley was granted by Athelstan and extended for a radius of a mile around St. but the extent of the privilege was more or less varied. After the conquest the practice obtained of erecting a stone seat. c.252 ings to tlie PRIVILEGE OF SANCTUAEY. 199.

. produces when one John Spret was entered as a sanctuary criminal. Vol."2* boundary began at the entrance to the church sixth embraced the high altar and the "frid- In the four roads leading to the monastery of Hex- ham. or seat and that of decoration.' PEIVILEGE OF SANCTUAEY. seeking the pro' ' tection of the Chair of Peace.^^ "" This term is "the seat of peace. which res'Ulted in the death of husbandman John Welton." Chamber's Journal. John Spret.. That John Spret. husbondman of the same town. p. . as it has interlaced Saxon and Norman ornaments on the top of the chair and a moulding extends below and around the seat. around which. " which meant so much to the criminals of early times. Vol. to which what criminal soever flies to it hath full protection. 513. was devoid It particular. p. 1887. lives is quoted long centuries later." meaning It was a heavy stone chair. gentleman. the Chair of Peace. Memorandum. 64. in Northumberland. 514. Vol. this tragedy. and this sad circumstance of their Liittell's a transcript of the register at Beverley. com to Beverlay. of July-Sept. in Saxon characters and letters was the word " Sanctuarium. the boundary stones were rude crosses. the vii year of the reen of Keing Henry the VII. the first day of October. 64. has caused both of these gentlemen to be known in history after a period of many centuries. and asked the lybertes of Saint John of Beverlay. in the hand of Mr. 1907. and knawlig hymself to be at the kylling of the same John with a degart. but perfectly plain." at Beverly composed of the words "frith" and "stol. as follows: "John Spret. in the counte of Lyncoln. 700. ' The "fridstool" served and that at is at Hexham has been carefully premuch more extensive and handsome than Beverly. to illustrate the manner of an obsolete custom. in every has been broken and repaired with clamps of iron and we are informed that It formerly bore a Latin inscription. the 15' day of August. 253 The third and the stool. " Chamber's Journal. upon Umber. — Living Age." And thus. p. of Barton. 254. for the death of John Welton. which stated that: "This stone chair is called Fridstool that is. at the point of a dagger.

and I will and ordain that " Violators of the first and second boundary were punished by a fine ot eight pounds. of what condition or estate soever he be. =" Chamber's Journal. or for what offence or cause it be. received its charters from two of the kings of the Heptarchy and Edward the Confessor attempted to forever establish of England. and so on. * * * j^(j whomsoever pregraunt I will he lose sumes or doth contrary to this his name. 1867. perhaps the most famous sanctuary in England. p. under the pain of everlasting damnation. At Durham. forever. 171. that no minister of mine. ante idem. 44. tended not only to the church. And over this. for it as one of the perpetual sanctuaries of criminals. but to the college of Martin and the precincts thereof.^® William the Conqueror granted the charter to Martin's le St. or possessions of the said persons taking the said sanctuary. lands. but he was regarded as a "botelas" man. he be assured of his life. from whence soever he come. or of my successors. Grand and by the charter the privilege exSt. I forbid. in the following all classes broad grant: "I order and establish.^^ Westminster." inposed to creased in proportion as the degree of holiness was desecrated. but it a person penetrated into the charmed circle of the altar. Vol. the churchyard and the circuit. either for his refuge in the said holy place. for the church was sup- throw around them its protecting arms and the penalties for intruding upon this "charmed circle. no fine could save him. that what person. dignity and power and that with the my great traitor Judas. liberty and limbs. the third space by double that sum. that betrayed our Saviour. All who came within this solemn circle were protected. worship. . the privilege extended to the church. he be in everlasting fire of hell.254 PBIVIIiEGE OF SANCTUARY. intermeddle with any the goods.

if a man fled to any one of the many sanctuaries. regardless of the enormity of his crime. Many =" Ante idem."^* So essential was it then regarded to maintain. Thames. ^'Chamber's Journal. 44. as he was required to do in case the asylum was not such a chartered institution. for life and was not obliged to make his abjuration of the realm. located between what is now Salisbury street and the Temple. on Fleet street. along with the delusions of witchcraft and other fanaticisms of that age. at all hazards. if they transgressed upon the sacred consecrated to the Lord and tection of criminals. It is well for the race that such delusions have passed away.PRIVILEGE OF SANCTUAET. even. upon a plot of ground.29 According to the law. granted by Edward I. an establishment of the was founded by Sir Patrick Grey. when he once reached the sacred precincts of the church's domain. . as it finally developed. this 255 my graunt endure as long as there remaineth in England. and Fleet street and the river Carmelites. used also for the pro- were classed along with traitors to the Lord and a dire curse proclaimed against them. he could remain there undisturbed. for attempting to preserve the peace soil of the realm. in the year 1241. was to be protected from the mere temporal powers of the earth. and claimed protection from the civil authorities for a crime he had committed. either love or dread of Christian name. or Alsatia. because he thus placed his faith in a higher law and the mundane officers of the law. The Whitefriars. p. 171. the pax ecclesiae. chartered by the Croitm. Vol. that the red handed murderer.

speaking of the sanctuary at Westminster: of 'The resort of felons to this place. about the year 1262. Reeve's History Englisli Law. it was decided by all the justices that sanctuary was confined to felons alone and that the sheriffs of London had a right to enter the town of Westminster and to proceed to the very gates of the abbey and to enter the houses of the abbey elsewhere in the county.*^ During the reign of Edward I. even though they sought the portals of such consecrated places. Vol. The sanctuaries to which special charters had been granted. p. Norwich. ='29 Ass. Reeve m'ust says. as private sanctuaries. 44. II. that belonged to the abbey. 34. while those that had not received special charters were called . to arrest felons. =» III. Manchester. and aside from those mentioned. to debtors and other classes of criminals than those who had for- merly enjoyed the right and he also contended that the civil officers were not allowed. A law suit resulted and notwithstanding the broad terms of the charter above quoted. 331. however remote. however. were known during the period of Henry Vll. under the conditions of the charter of that institution. to enter upon any places. being in the metropolis of the kingdom. have been very great and productive great disorders. 81. Reeve's History English Law." ante idem. p. there were sanctuaries so chartered at "Wells. the Abbot of Westminster attempted to extend the privilege of sanctuary. Journal. p.^" In the absence of a special charter. the crime of treason was not a sanctuary crime and traitors were not protected.^^ ™ Ante idem. Chamber's 171. to those guilty of treason. York. Lancaster and Northampton.256 PRIVILEGE OP SANCTUAEY. of these chartered asylums were established. Derby.

or existing at During the reign in the realm and made so by common law. for it admits. that if a man's body was in execution. counterfeiting. p. discharged all felonies done before the abjuration. receiving stolen goods. IV." IV. housebreaking. It a church was suspended for bloodshed. but he must add that he had committed a felony. a historian of such a sanctuary as Westminster Knoll. The law of sanctuary is laid down in a reading of this pei-iod in the following manner: None shall take sanctuary but in perioulc vitae.PRIVILEGE OF SANCTUABT. though he need not specify the felony. Reeve's History English Law. "If a fled to man might remain undisturbed " 3 Henry VII. and came to a sanctuary. murder or homicide. 12 . debt. ordained as a refuge. he for life. for a grant or prescription to have sanctuary for debt was against law and void.^^ ration. A man could not abjure for petit larceny. for him to declare that he came there was not enough to save his life. however. But if he failed to make such a general declacivil process. But the reading lays down a strange quibble to evade this. felony. "Ante idem. iecause ty long imprisonment his life might lie in jeopardy. and he escaped. Reeve's History English Law. before the coroner came. rape. but only for such felonies as Induced the pain of death. he who took it for sanctuary should still enjoy It for forty days and abjuration for felony. escaping from prison. or burglary. harbouring a thief. the coroner was to appoint him a day to do i:.. larceny and the other crimes common statute. included the whole gamut of crimes know:n to English law. 257 The class of criminals who sought protection under the right of sanctuary. as for treason. but if he chose to abjure within the forty days. he should have benefit thereof. .** he could be dragged from the sanctuary and was not exempt from that period has said: general sanctuaries and in distinguishing the two. and safeguard for a man's life. or the like and not for debt. 253. treason. 255. of Henry VII. horse and cattle stealing. it was decreed that it when an offender fled to sanctuary.

258 PRIVILEGE OF SANCTUAEY. hell who * took refuge fled to the north door and knocked for * * As soon as anyone was so admitted the galilee was immediately tolled. to admit such nocturnal visitors as called at dif- ferent hours to claim their sanctuary. jf one's life was saved the third time. in token of his demanding the privilege * * * Everyone who had the privilege of sanctuary of sanctuary. gives the following description of the manner of claiming sanctuary at Beverley and Durham: "Persons admission. 514. to tell the nature of his offense.^® The oath administered to the refugee has been preserved by the Harleian Manuscripts^^ and a form of ^° Preface of Rev. as the oath administered by the Archbishop of York. was provided with a black gown and a yellow cross. lord of this towne. to give notice that some one had taken sanctuary. " This is Beverley. at same is preserved in the register. Cuth* * * bert's Cross. according to the Harleian Manuscript "Ye shal be trew and feythful to my Lord Archbishop of York. and to toll a bell. James Raine's to the Fifth Volume of the Surtees Society. gee was admitted to the sanctuary. p. and certain credible witnesses. be became permanently a servant of the church. gown of A black cloth. ye shal here gude hert to the Baillie and Governors of this . 64. to announce to the outer world that another sanctuary criminal had been admitted. to the Chanons of this chirch." Chamber's Journal. by the privilege of sanctuary. with a yellow cross. to was given to the culprit wear and he was disarmed and assigned to his quar- ters. called St. maimer of enjoying A knocker was usually provided at the outer door of the abbey and one or two janitors roomed above the After the reCu- door. the Galilee Bell was tolled. Also. and all other ministers thereof. before the shrine of the patron saint. The offender was required. The system whereby the felon fled to sanctuary and was accorded the privilege is described in the literature of the period descriptive of the this right. upon the left shoulder. Vol. to the Provost of the same.

this "This hear thou. now escaped and broken into the same into towne. 64. and this holy Evangelistes. I will go I can every day into the sea up to my knees. which preserved in the Treasury. 514. and unless have it at such a place. we find that it was extended felonies. and unless I can do this within forty days. if I can have passage. ye shal bere no poynted wapen. dagger. and a felon of our lord. am a robber of sheep or of any other beast. and that at such a place I will diligently seek for passage and that I will not tarry there but one flood and ebb. I will that I be taken as a robber and a felon. as well as the lesser Henry IV wrote a is letter to Cardinal Langley. 515. and that I shall not go out of the highway. 64. that I of H. burges and comyners of the same. "'As reproduced. in his land. has been handed down to us. * * * So help you God. to help to surcess it. and asked the protection of St. "late comitted to prison for treason. or a murderer of one or mo." Chamber's Journal. Sir Coroner. p. Also.^* wherein that monarch respected the privilege of sanctuary.PRIVILEGE OF SANCTUAET. to include treason. I will put myself again into the church as a robber and a felon of our lord the king. Chief Justice of the Court of Common Pleas during the reign of Queen Mary. and because I have done many such evils or robberies. oath is in Chamber's Journal (Vol. Cuthbert for the person of Eobert Marshall. or oder sotham case of fyre within the towne. assaying to pass over." While the right was held not to extend to cases of treason. And ye shal he redy at all your power If there be any debate or stryf." »» me and his holy judg"* Chamber's Journal. 514). p. administered by Sir William Eastall. p. and if I do. Vol. in different reigns. generally. 64. . nor no other wapen agenst the kyng's pece. to al. even in a case of treason. I abjure the land of our lord the king of England and I shall haste me toward as follows: M the port of such a place which thou hast given me. so God help ment. the king of England. knyfe. 259 confession and abjuration. of our lord the king. Vol.

Yeven under our signet at our towne of Stanford. in the case of Sir Eobert Haule and Sir John Shackle. while he ran around the choir. who was burled at his feet. youre church of Duresme. Having escaped is from the Tower. we having tender zele and devoeion to the honour of God and St. the widow of Ed- ward IV. . minster. when they entered the abbey. with fifty armed men pursued them and although the celebration of mass was in progress. the xxvii day of July. they killed Sir Eobert Haule. with her Richard HI.: — 260 PRIVILEGE OP SANCTUAEY. in England. these gentlemen took refuge West- Boxhall. the constable of the Tower. Sir escape the ferocity of her inhuman brother-in-law. * * * wol that for that occasion nothyng be attempted that shal be contrarie to the liberties and immunitie of our church. Thomas More gives a graphic account of the sanctuary of Elizabeth "Therefore now she (Queen Elizabeth Woodville) toke her younger sonne the Duke of Yorke and her daughters. also took sanctuary there to Westminster and Queen Elizabeth. ante idem. they pursued the prisoners and although Sir John Shackle escaped. 8. with their swords. Vol.. as ye wol answere unto us for him. the father of Henry VII took refuge at son. and went out of the Palays of Westminster. a few years later. near the prior's cell.*' Owen Tuder. "We therefor wol and charge you that he be surely kept there. Cuthbert. He was burled as a martyr. in 1378. by hacking him. with twelve serious wounds. 425. in the south transept of this abbey and was followed by Chaucer. p." There was flagrant breach of the ancient privilege of sanctuary. " The Green Bag. until he fell dead.

all desolate and dismayed. in such sad plight. One devoid of chivalry and possessing only common human instincts of pity would have offered protection to a lady ting all alone. Martin's claiming sanctuary.. jTiIy-Sept. they reached Panyer Alley when an officer was con- ducting a prisoner from Newgate to Guildhall. bear. stuffe. no man was unoccupied. 261 into the Sanctuary Hac and and there lodged in the Abbote's she and all her children and campaignie were registered for Sanctuary persons. Martin's Grand. and carriage of her stuffe into Sanctuary. "Richard III. of "Crookbacked Eichard. Whereupon. When five of the prisoner's friends rushed out and rescued him from the officer and look him to St." for he determined early to prove a villain and. conveigh. Scene. 254. Act. haste. a refugee from the ferocity of her wolfish brother-in-law. sitamid the green rushes. businesse.. rumble. no pity for himself.PRIVILEGE OP SANCTUARY. to clothe his naked villany "with old odd ends stol'n forth of holy writ". Every man was busy to carry. when most he played the devil and was not only devoid of pity for others. chestes. the Bishop (Lord Chancellor Eotheram. in himself. 1442. conveighaunee. and some carried more than they were com- manded to another place."^** of this poor widowed Queqp. 701. but found. . oc- curred in September.*^ An instance of the temporary violation of the royal le charter privileges granted to St. but history does not record it A pathetic picture. 1907. he seemed a saint. and fardelles.. III. The sheriffs '"Mttell's Living Age. Archbishop of Yorke) called up all his servants and took with him the great seal and came before day to the Queen. The Queene sat belowe on the rushes. V. about whom he found much heavyness. Vol.

of the privilege for the . 44. but after solemn discussion and reflection. by the Dean and Chapter of St. in showing the views then obtaining on this custom. Martin's "there to abide freely. as in a place having franchises. 171. he pleaded his right of sanctuary. in fear of their lives. It was contended that no right of sanctuary existed. London went "*2 During the reign of Henry VII. the interesting case Humphrey Stafford. with chains liked.262 of PRIVILEGE OF SANCTUAET. but all five of his friends. The debate from the at the Council Board. wherein the right of sanctuary. since no crime had been committed. When brought to the Bar of the King's of Bench. See. were overcome by the mild persuasion urged by the Archbishop of York. whiles them prisoner. in treason. who counseled that the child be obtained without force. Vol. was expressly denied. was decided. 171. the judges gave a unanimous decision that treason was such an exalted crime against the prerogatives of the King. 44. The matter was brought before the King 's Star Chamber. if possible. to the Clmrch and not only took the round their necks to Newgate. occasioned by Queen Elizabeth's refuge to Westminster. that it could not be included within the crimes for which sanctuary would be allowed. Speed. is not without Interest. Stafford had been attainted of treason and claimed sanctuary but was taken from the sanctuary and imprisoned in the Tower. over the right to take refugees sanctuary. Those who advocated roughly taking them away. Vol. and they disregarded the *" Chamber's Journal. Sir Thomas More. that the little son had no right to sanctuary at all and that it was a flagrant abuse Queen to claim it. Chamber's Journal. p. p. Martin's le Grand and the claim advanced that the ancient charter privileges of the Church had been violated by the Sheriffs and the King ordered the men to be sent back to St. as the right was only extended to criminals.

And a place of safety.** Illustrating the growing tendency to limit the priv- ilege of sanctuary during the reign of Henry VII. 24. fol.*^ It was attempted to have this holding reviewed the year following the decision. will not be studied in vain. when the Abbot of Abingdon appeared before the judges and produced his ancient charters. In Its attempt to narrow the right of sanctuary and the church. 253. is as a privilege. but one of the judges replied that king." And and this it view obtaining. I. IV. then it is sanctuary. And this shows that it can be done without the assent of Pope or Bishop. The Abbot claimed that the judges should confer with the prelates before pronouncing judgment. l-aw. "Year Book. of which arises by the principle of protection the cognizance belongs to us. 263 ancient charters to the contrary and gave judgment that Stafford should be executed. upon which he claimed his privileges were founded and the whole issue was gone into in exchequer chamber. 254. p. our law. Reeve's History English Law. For to pardon or dispense with treason. not as sanctuary. pertains exclusively to the king. having committed treason. Reeve's History English " IV. Finlason's note. "There can be no franchise without grant from tlie For the king can grant that any person who enfers such a place. not before. shall not be taken therefrom..: PRIVILEGE OP SANCTUARY. another significant case. This is p. one of the many Instances of the struggle going on for centuries hetween the civil authority. before the judges. and that the Pope cannot do it within this realm. to enlarge or preserve It. Henry VII. . the Abbot was denied his suit was finally held that no right of sanctuary ex- isted in case of a charge of treason. But when the Pope has consecrated the * * * But place.

continually. Two felons were taken out of sanctuary. the court. contrary to the law of peine forte which punish- ment was only assessed upon those standing mute and refusing to plead at all. IV. on the merits. that they be taken to the jail. until they died. at South- wark and when arraigned for their crimes before Sir Thomas Frowike. Keilway. So final judgment was entered. Reeve's History English Law. They were commanded to plead to the felonies with which they vfere charged. without arraigning them again. this judgment is an important index and that such a judgment should have been rendered against indicative of the cruelty As men claiming the privilege of sanctuary. from whence they came. they pleaded their sanctuary and prayed to be restored.264 PRIVILEGE OF SANCTUARY. and not to those claiming an exemption given them by such a well settled custom approved by the laws and decisions of the courts for many centuries. notwithstanding their right to sanctuary. . 70 p. claiming that as they were wrongfully taken out of sanctuary they were bound to plead to the indictment. but refused. however. 254. and that they should have nothing to eat but bread and water. but it was certainly contrary to the spirit and intent of the law and condemns the judges *" 21 Henry VII.. and that so much weight be laid upon them as they could suffer and more. was not only et dure.*^ and barbarism then obtaining. and laid upon the bare ground. for standing mute and refusing to plead. found that they had not been taken out of sanctuary and then. . and that so they should be kept. ordered thar they be subjected to the terrible peine forte et dure. Chief Justice. Finlason's note.

for in this church there was an image of the blessed Virgin. for centuries. and many particular ecclesiastical asylums were established in Scotland. by special charters. on recovering the throne of his ancestors. Scottish kings granted charters recognizing broader privileges in certain churches than in others. even unto late day. in Fife. much more sacredness was attached to the plea of sanctuary. granted the "king's peace. one of the most promi- nent sanctuaries of Scotland. David I. by the ancient canons of the Scottish Councils. most remarkable features of the custom of was that of the Clan Macduff.PRIVILEGE OP SANCTUABT. than obtained during this period of English history. of Scotland. related within the ninth degree to the Chief of the Clan Macduff. to those refugees taking sanctuary at the church of Lesmaha- gow. Any person entitled." in addition to the church's protection. to fine. obtaining in Scotland. History records that this privilege of sanctuary. alleged to have been granted by Malcolm Canmore. One of the most celebrated sanctuaries in Scotland was the church of Wedale. from Jerusalem. saved the life of Hugh de . of the One sanctuary. or at least to trial in any Jth(>r by the Earl of Fife. when he fled to have his punishment remitted to a be repledged and exempted from jurisdiction. now called Stow. who committed manslaughter. 265 this pronouncing such a harsh judgment. and it was. believed to have been brought by King Arthur. In Scotland. was Macduff's cross. Excommunication was there incurred for the offense of taking criminals from sanctuaries and depriving them of the protection of the church.

in 1880. to commit murder.*''^ In 1487 Pope Innocent VIII authorized the arrest of left the sanctuary. The Scoth law of sanctuary was more guarded than this country. * This bull was confirmed by Alexander VI.266 PEIVILEGB OP SANCTUAET. Imprisonment for debt was abolished in Scotland. in the middle ages. Vol.*® ^"Chamber's Journal. including the hill of Arthur's Seat and the Queen's Park. at the places noted. 515. for protection realm. there ex- the English. in the year 1421.. p. and Julius 1493. from trial for the murder of John de Melvil of Grienbervie. idem. 64. rob- bery or other felony. In 1378 it was ordained that debtors claiming sanctuary with the intent of defrauding their creditors should have their goods and lands levied upon to dis- charge their persons who debts. with its precincts. while it obtained in England and Scotland gave rise to considerable legislation and litigation. Vol. p. in affording too easy an immunity for crime. and while the privilege still exists in form. . to restrain the right withia the proper limits and to interpret the laws governing the privilege as it had previously been enjoyed. 515. and he ordered at the same time that those inmates of sanctuaries who were guilty of treason should be prevented from leaving the the second time. though they sought the sanctuary. Vol. 170. in fact it has ceased to be a necessary legal exemption. 44. a sanctuary for debtors in the abbey and palace of Holyrood. Arbuthnot and his accomplices. but in isted in most recent times. 64. in and 1504. " Chamber's Journal. II. ante idem. 171." The privilege of sanctuary. since the repeal of this law.

"26 Henry VIII. 8. so Henry VIII.. of the compass. sanctuary was taken away where the crime was trea- was enacted that "all sanctuary persons were to wear a badge or cognisance to be assigned and appointed by the governour of every sanctuary. unless discharged by the king's pardon.^" That • "every person abjuring was to repair to some sanctuary within the reign which himself should choose. with the sign of the letter A. By act passed in the twenty-first year of his reign. and there remain during his natural life. But if he went out of that sanctuary. . in length and breadth of son. and to be sworn before the coroner upon his abjuration so to do. p. 267 Statutes of the time of Henry VIII greatly curtailed of Parliament. and was excluded from the right of sanctuary. was "Immediately after his confession. 515. c. openly upon their outer garment. by statute provided. and committed murder or felony.' : PRIVILEGE OP SANCTUAEY. ^ 64 Chamber's Journal.*® provided that the culprit juration. to the intent he might be the better known among the king's subjects to have abjured." In the twenty-sixth year of the reign of this monarch. he was liable to be brought to trial for that offense. It ' was found that the citizenship of the realm was becoming weakened by sanctuary men abjuring the realm. and before his abwas to be branded by the coroner with a hot iron upon the brawn of the thumb of the right hand.''^ and in the thirty-second year of his reign it ten inches under the pain of forfeiting the privilege of sanctuary." They were also prevented from carrying knives or swords or other weapons and were no: to " 21 Henry VIII. it the privilege of sanctuary.

"^ Various precincts continued to afford shelter for criminals. letters of the alphabet. c. the and her son. however. to claim sanctuary. however. as to widow of Edward IV when they had committed no crimes and the son had done nothing to entitle him to sanctuary. One James when he began to rule over England. 26. and the right of sanctuary was also confined. Sir Walter Scott. whose names com- mence with other legal reference. and other writers.268 PRIVILEGE OF SANCTUARY. Both while the practice of sanctuary obtained and years after furnished a it passed away. Shadwell. to parish churches. say. "S & William IV.^^ was abrogated for good. I.. the same monarch for all finally abolished the right of sanctuary kinds of crime. enactment of this statute of James abolish the practice and it intended to finally until the later act was not finally of 1697 that the custom in England. long after the I. an attractive source of In describing the argument before the Council. have found the ancient law of sanctuary. in "^21 Richard III: I. Shakespeare makes Buckingham the right of Queen Elizabeth. in and about London. hospitals and college churches and of the first acts of all dedicated chapels. Leave their lodging except between sunrise and sunset.. by Henry VJIl. 28. churchyards. the institution for theme popular authors to weave romances around and Shakespeare. in England. was to further abridge the right of sanctuary and twenty years afterward in 1624. cathedrals. James 9 c. .

This prince hath neither claimed therefore. "Act "Act Scene. See White's "Law IV. cannot have Then." ^s if And in Coriolanus. I. The poor. sick. it. "Queen Elizat. to Law of Sanctuary. broken with the storms of State."" " Richard III. The benefit thereof is always granted To those whose dealings have deserv'd the And And those who have the wit to claim the place. IV. "Buck. taking him from thence. . I. For discussion of this and the other references Shakespeare. mine opinion. "3' Henry I. is we have the pro- tection in sanctuary. Act. Embarquements all of fury. forthwith. in King Henry VIII. in Shakespeare. p. But sanctuary children. desolate widow thus ' of Edward IV. VI. X. nor times of sacrifice.. Act."" You break no Cardinal Wolsey sought the benefit of sanctuary. nor sleep nor sanctuary.. for charity. after his disgrace. The prayers of priests. * * * 269 You break not sanctuary in seizing him. Scene. shall lift up Their rotten privilege and custom 'gainst My hate to Marclus. when made * * * to say "Am/. hence. in nor deserv'd it." Sec. after the death of her husband. unto the sanctuary. ne'er till now. nor fane nor capital. Shakes- as a "rotten privilege". it. as realizing that sanctuary its was an institution that had out lived peare thus refers to Aufidius is it usefulness. IV. Scene. place. privilege nor charter there. Give him a little earth. Scene. 354. that is not there.. at the Abbey of Leicester.. whose plea of sanctuary already described.." in the following touching plea :^^ "0 father Abbot.. Is come to lay his weary bones among ye.: : PRIVILEGE OP SANCTUARY. in III. in 3 I'll made to reflect upon Henry VI Edward's right. Oft have I heard of sanctuary men. To save at least the heir of I rest There shall secure from force and fraud. an old man. 324. being naked.

by King James. carried of the centuries. that the public were about ready for the final repeal of the law. the old knockers on the sanctuary doors were most welcome pursued by the howling mob. sights to the fearful criminal. like wolves. in the ever flowing flood of time. fed upon the delusions that were rampant. when the "avenger of blood" was abroad in the land and men. as he hurries through the black browed night. in referring to sanctuary. but in the dim past. What a sigh of relief he must have ancient altar of some of the when he reached the ultation his heart what exmust have throbbed. This old institution has passed away forever. clamored. followed by his blood-thirsty pursuers. for the life blood of the criminal. bent and fearful. like a hunted stag. away by the current The necessity for such a custom has long ceased to exist. In our imagination we can see the cringing murderer. and the ancient law of sanctuary.270 PRIVILEGE OF SANCTUARY. so the gifted Shakespeare. fleeing for the blessed portals of the sacred places. since the reign of Henry VII had been gradually amended and so many different limitations were imposed upon the ancient privilege during the reign of Henry VHI. in Coriolanus. as he clung to the ancient "frith-stool" that for untold centuries had afforded protection to criminals from the vengence of the pursuer. felt. Already the trend of public thought was against the custom which afforded exemption to the criminal seeking refuge in the sacred places of the kingdom. ever alive to the popular views of his audiences. old sanctuaries of the middle ages and with . speaks of it as a "rotten privilege" that could not stay the hatred of Aufidius for Marcius.

from the begin- was thus thwarted and Justice ing that they should be criminals. in that regard. is and. Let us be many of them as did successfully em- brace the privileges of sanctuary were spared through . 271 This obsolete custom of the inhabitants of the lost world of the past had for its recommendation the charitable and philanthropic object of saving men from the many "crimes against criminals. And while the officer cheated.PRIVILEGE OF SANCTUARY. Many instances. is it as well that Mercy was thus used to temper Justice. However this may be. where the practice was used the law and from enforcing was used as an instrument whereby "crimes went unwhipt by justice. ' ' charters of the Crown decreed it. no doubt. there were no doubt mitigating circumstances why they happened to be as they were. It may have been decreed. the "Bravoes of Alsatia" and "Freemen of the Borough. they contributed to the quota of the crime of the world and with the right and wrong then obtaining. "the birds of St. upon the beneficent theory that "it a thousand guilty better for men to go free than for one innocent man it was an institution accompanied with most benevolent results. Many of them. have past thankful that as away forever. prevailed. belonged to the large class of the "predestined lost" and if their inner lives had been scanned. Martin's"." then obtaining. perhaps. existed." flourished and lived. The old Mosaic law and the time honored to suffer. The hands of the officers of the law were held up when they came to the charmed portals of the sacred sanctuary. the "boys of Westminster Knoll". instead of honest men." But in the harsh to prevent the civil authorities it days when the extremes.

as well as a protection for crime and gret that there we can hardly re- was such an oasis in the desert. it will make no difference whether this or that criminal suffered death just at this or that particular time. could but have had a softening and leavening influence upon his life. fluence of their altruism for a time. which contemplates the visitation of equal punishment upon all alike. for the same crimes. free from the war of the outside world. this merciful custom. to ope the eyes and ears of men." domains "wilder than wildest wolf or They all have gone. without much delay and that he was allowed to consort with holy men. and feel the inand listen to the service of the sacred altar. "one little glimpse of Paradise. So while inconsistent with a proper administration of justice. who suffered then gone. or a little later. in the end. we would not have it otherwise. since sanctuary gave to those who lived and suffered here below. the persecuted could find rest the desert bear. with its superstitious chant. amid the rapine and murder of the middle ages it was often a shield for innocence. — where from the wild beasts of "with the snows of yesterday" the way the Mammoth went his way.272 PEIVILEGB OP SANCTUARY. for. So whether it was good or ill. under similiar conditions. He paid the penalty of the flesh certainly. ' ' — — .

for a crime or offense committed. he slays his kind in cruel glee and sorrows he can slay no more. but as treated of in this chapter.CHAPTER X. puniskment includes any pain or detriment suffered in consequence of wrong-doing. as well as upon the guilty. is The term punishment properly restricted to the penalties imposed by competent authority. it has been frequently imposed upon weak and the innocent. Ancient Punishments. tiquity." When we read the history of the punishments of anthe bent of his cruel impulses. man has never reef with good or ill. offender it means the pain or other penalty imposed by an authority to which the is subject. for violations of law. but like a ravenous beast of prey. instead of the beneficent (273) .lways confined to the authority the acting only in pursuance of the fixed rules of law. it has too often resulted from the arbitrary will of someone in superior authority. but as the subject of the following pages will bear evidence. far fiercer "than the wolf or bear. In the broader sense. and instead of being p. in the same propor- man excels the lower species. we can but wonder that the people suffered so long and so continuously as a result of laws which had for their foundation the passions or wickedness of only a small per cent of the people. "Man's inhumanity been a peculiar exceeds that of tion that all to man" seems ever to have trait of the species and human cruelty In following other animals.

bond wliich keeps the Interest of individuals men would return to their original barbarity. Every just punishment should be limited to the neces- and preserving the liberty of the masses of society from the usurpations and wrongs of individuals. might be properly said makes prevention of further crime. and the motto of this school of legal philosophers. According to the first of these theories. but vent the criminal from doing further injury to society ^ Justice united and without this virtue state of 9. .^ so punishments are now provided to for. rules of conduct formulated by the "cool examiner of human nature. might properly be said to be Brotherly' Love. 41. ' ' familiar with the actions of the multi- tude and prompted by altruistic motives.274 ANCIENT PUNISHMENTS. the is bereaved of her whelps. The motto for the last school of philosophy. to pre- nor to attempt undo the crime committed. by the Infliction of such pain or penalty as his crime deserves. to The three be Justice. retribution. Marquis Beccaria. cruele'r ^ "Cruel is the panther of the v/oods. do no idea. sole The second to the object. hence." in man a hatred Baccaria's "Crimes and Punishments. prevention and reformation. can therefore properly be said to be protection." p. not to torment a sensible being. to legislate for the greatest happiness of the greater number.^ sity of defending Since the time of Beccaria men have realized that the groans of a tortured wretch cannot recall the time past. theories regarding lawful punishment. The third and by far the most philanthropic doctrine of punishment regards the object of correction as the primary one to be attained and that all punishment sEoiild cease when the criminal ha3 been reformed. are. the motto for this theory. or reverse the crime once committed. but there than that. the object of punishment is the vindication of the law upon the offender." is the V Carlyle has well said: she-bear. on "Crimes and Punishments. further wrong society. hence. the criminal being placed where he can. every punishment which does not arise from such necessity is tryanny.

Viewing all other men as inconsequential criminal in the sum total of the universe. for centuries. good for nothing and since punishments were in- vented for the good of society. but each individual believing himself the center of the social unit. But with the idea of reforming the criminal. after he is dead . rather than diminished crime.ANCIENT PUNISHMENTS. Torture. has been consecrated as a time honored custom by most of the older nations of the world. but the so far regarded as an enemy to society. seemed to forget brothers that a man. 275 and But to deter others it from committing similar offenses. Viewing the whole plan of society by the standards of the past. not in themselves wholly reformatory in their nature. it is difficulty to determine whether the crimes against society or those of society against the alleged criminal. still they universally perse- cuted each other. yet authority to inflict punish- . have been the greater. that all is men were Mankind. that they universally desire the punishment inflicted upon another which they would never want inflicted upon themselves. the barbarous tortures of the past have been eliminated and the trend of modern criminologists is to further limit all punishments. even to the death. was not always thus. men have been ever ready to play the tiger and make the alleged criminal the lamb. in the handling of criminals. that they ought to be useful and not destructive. because it was the other individual whose life was sacrificed. in the punishment of criminals. of the worst kind. Excessive punishments have always increased. All mankind have ever detested the violence of which they may is themselves possibly be the victim.

and the humane law of the philosophers has been disregarded far too long to curb the ingenious cruelty that has inflicted penalties and pains upon alleged criminals. for we was reported to Judah that his daughter-in-law Tamar.® and many other of the early martyrs were beheaded.. The ize object of this chapter.'^ Burning to death was of pre-Mosaic authority. however. Persians.^ and Israelites. 10. but to contribute of ancient punishments. A common punishment during the French Revolution. We find that the "chief baker. in the name of law. 4. by beheading by the ancient tians. was with child and had played Bring her forth and let her be the harlot.." ill-will. frequently wholly innocent of any crime.. XII.276 ANCIENT PUNISHMENTS. Judah said. find that when it ' ' ' Rawlinson's "Ancient Monarchies. and hopelessly borne on to their destruc- Capital punishment. 'Revelation. 8.* John the Baptist lost his was accordingly decapihead on the order of Herod . Greeks and Eomans. XX. 2. = Matthew. . XL. was not practiced was a custom of the EgypAssyrians. who in- curred Pharoah's tated. but the French. 19." 'Genesis. as a whole. XIV.^ James the Apostle suffered a similar fate. 22. with a something to the vast fund of historical information upon the subject few illustrations of the pains and penalties inflicted during the past ages. upon the unfortunate victims falling into the vortex of the current of a past civilization tion. "Acts. ment has never been much. is not to moral- about crimes and punishments. concerned about the welfare of the race or of society..

in which death by burning and drowning was the usual lives of the mode of poor unfortunates. at Nantes. XXXVIII." in The Gentleman's Magazine.. 377.) Seine. "John's "Babylonian Laws. The Emperor Tiberius. 46. as late as the sixteenth century and it was revived again during the cast revolution by the infamous Carrier. where they were drov. Tlberil. In France.^ ^ Even before ending the this the witch craze. Matthew.ANCIENT PUNISHMENTS. 14.. as a punishment. during the witch craze in the seventeenth century. etc. them into the sea. burnt. "^ 277 This was the punishment inflicted upon a priest's daughter. XX. Josephus. for the edification of the cruel crowd. XXI.) p. » Genesis. Ixii. Lea. the Jews and the Romans and more recently among the French. feet and feet and hands and hands. "Superstition and Force. English and Americans." "Leviticus. in the eighteenth century. XVIII.. Penalties. H. Sueton. Davenport Adams. for fornica- and was also the form of punishment for incest with a wife 's mother. . 9.^ under the Sinaitic law. death by drowning was inflicted upon the incontinent. They were tied together. 6. and in their hideous death struggles they churned the water.^" Drowning was a form of capital punishment in vogue among the ancient Babylonians.rned. after torturing the victims of his wrath." (3 ed. but the gabare was soon done away with and men. 362. until the last poor straggler had sunk to his (See article by W. women and children were stripped naked and thrown into the river. "Pains and final rest. Ninety priests were loaded into the gabare and sunk in the river Then a hundred and thirty-eight persons were similarly drowned. 24. in England. there were precedents for the use of drowning. Vol.. in broad daylight and not even under the cover of darkness. tion. ""Leviticus.. accused of hated and unprovable crime. p. in thai country.

pene'3 501. as a martyr to her and her young life forfeited as a penalty for hav154. and his associate justices itinerant. within the before-mentioned hundred. -a young drowned at Wigtownshire. that the Prior of the Christ-church in Canterbury. After a partial unconsciousness. Twysdea bar.^^ In 1685 two women. were their religious belief. in 1624. gained a place in history. divert the course of a certain stream. John the Baptist. importing." She re- They were bound fused and as the waters closed over her for the last time. in the Octaves of St. of Edinburgh. of eighteen. a widow. the young girl was revived and was urged by her friends to say "Grod save the King. cod. Vol.278 ANCIENT PUNISHMENTS. and Margaret "Wilson. for we find that in the sixth year of the reign of that monarch. sitting at Canterbury. Margaret M'Lauchlan. in the hollow where the Princess Garden is now located. called Cestling. " Gentleman's Magazine. ought to suffer judgment by drowning. >'Herbert's Antiquities (1804). the jury for the hundred of Cornylo. During the reign of Edward II felons were put to death by drowning. ^2 Drowning was regarded as an especially appropriate punishment for women in Scotland. 46. in Kent. to death. at an early day and according to Dr. about eleven years then past. 108. Hill Burton. in which such felons as were condemned. eleven gipsy women were street sentenced to be drowned in the North Loch. S. Rog. p. Ex. M." And thus she belief. p. for girl. . she gasped: "I am was Christ's. exhibited a presentment to Hervi de Stanton. vet. did. to stakes where the swift tide of the Solway overflows twice a day.

practiced peoples. "Josephus. " Rawlinson's Anc. and the King had entered a decree that it should be so. stoning to death. XIV. from the The children of Judah Chronicles . in other civilized. was a common punishment of the Israelites.^° for this was the law of the Persians. Darius caused Daniel to be brought and cast into the den of lions. VIII. " 2 Samuel. Liayard's Nlnevah and Babylon. were all different modes of inflicting the death penalty. strangling and suffocation.'^ advises us that a disobedient prophet. 279 ing incurred the religious and political bigotry of a despotic monarch. countries. 12. ill. 8. 477.. VI. " Archibald's Stewart's "Wigtoun Martyrs. and Eomans..ANCIENT PUNISHMENTS. among the ascient Israelites earliest time. ™ Baccaria's "Crimes and Punishments. by being cast before the lions. 1. IV. IX. for that it we find was in general use among the ancient patri- archs.^'^ the Persians^^ and the Greeks^® and has con- tinued as a mode of capital punishment ever since. according to the second book of even the valiant David." "Daniel. and other ancient Edomites from a relate. painful to the cities of the children of when he took Ammon. or rated civilized. "Herodotus.^" Precipitation. Ant. VI..000 rock to their death. . slaying by spear or sword... 295 note.." ^"2 Chronicles. Ant. Hanging is one of the forms of capital punishment that has survived for thousands of years. for wickedness or unfaithfulness. named Jadon.^^ cast 10. Mon. 1. 159. sawing asunder. XXV. met death from God. 16. and another ancient authority. Josephus. 12." Exposure to wild beasts..

2. Persians. various Eoman governors crucified large numbers of robbers. « 1 Kings. 9. p.. ^ 1 Samuel. was the usual place for execution of felons by hanging. idolatry. twelve hundred years ago. was a refined mode of punishment used by the Jews and Eomans. V. XXXII. and political and religious criminals. 27. XV. I.^^ Under Claudius and Nero.. "•Mem. XVII. blasphemy. XX. and with harrows of iron. at the foot of Sinai ..^" brought forth the people ^= 1 Chronicles. (Herbert's Antiquities. XX. 246. in England.^^ the spear. p. iii. Bible. 33.. Egyptians and Numidians. before IsraeP'^ and suffocation was used both by the ancient Jews and the Macedonians.280 ANCIENT PU>nSHMENTS. Ant. . Hanging was ordained by tbe Laws of Ina. ^ Rawlinson's Ancient MonarcWes. "Exodus. '» Josephus. X. and the same number of rioters were crucified by Varos at one time.^^ Crucifixion.^^ the sword was taken by the Levites against the worshipers of the golden-calf. 3. and with axes". 13. Alexander is reported to have crucified two thousand Tyrians at one time.. javelin or dart. in the time of the Saviour.^* Samuel hewed Agag to pieces with the sword . XIX. 527.) Until 1783 Tyburn Tree.. It was borrowed by the Eomans and Grecians from the Phoenicians. 31. thieves. XX. for false prophesy and Sabbath breaking f^ strangling was the proposed punishment for the Syrians. all and "cut theua with saws. in England. was to be used on trespassers. after the death of Herod. vol.... Exodus. =•> ='Hastmg's Diet. 153..^^ stoning to death was the penalty for adultery. at the west end of Oxford Road (now street). among whom it was in general vogue.

The shame of this torture to which the Saviour was subjected has become not only the symbol of salvation. covered with white gipsum. At the place of crucifixion. accompanied by the centurions and soldiers having his execution in hand. or the cross-piece was fastened to the upright post upon the ground and then raised into an upright position.^^ After conviction. the victim was scourged with the flagellum. in was usually carried before the so that the curious con- demned person. XIX.ANCIENT PUNISHMENTS. until the notch was reached in the upright piece. but the true type of that absolute renunciation of the world which characterizes the true Christian. The title. the prisoner was stripped and his clothes given to the soldiers. or his head was placed in the patihulum. with the afflicted one bound to the cross. for did "John. might be advised of the cause of his death. amid the gibes and insults of the cruel crowd. was to suffer.. . which afflicted was such a severe punishment that the to one frequently died before the crucifixion oc- curred. he was then bound to the patihulum and thus raised on ladders. which might last for hours or perhaps for days. there to suffer the slow agonies of a lingering death. 281 The method the of crucifixion is accurately described in New Testament. The cross-bar was bound upon the back of the victim. as was the custom. with his hands naile4 to the ends. to receive it. and he was then led through the city. a piece of wood. the scourging seems have taken place before the crucifixion. In Jesus' case. labeled with the crime for which he letters of black.

VIII. near the Colline gate. "Cedrenus. declared that it was impossible to find a fit word to describe such an O'Utrage as the crucifixion of a Roman citizen. not only because of the pain resulting. was attired like a corpse and placed in a closed litter. XVI. : " If any man would come after me. the unchaste Vestal was simply stoned to death. The pontifex maximus offered up a prayer to Heaven for the culprit The vault. violating their oaths of chastity and it was also in vogue in France during the middle ages. 259. vii. Luke.*^ but the cruel torture of burying her alive was devised by Tarquinius Priscus and inflicted from his time forward.. was a form of capital punishment Eome as a punishment to the vestal virgins. 148. the pit Matthew. yet the gentle Galilean suffered this horrible death. Hist. hut also because of the shame of such a death. and having thus performed his sacred her to the executioner. All authorities agree that of all deaths crucifixion was the most abhorrent. 67: Zonaras. 23. underground. Comp. Cicero. within the walls of the city. In his Oration against Varres. was furnished with a couch. attended by her weeping relatives and friends. IX. terranean == office. Mark. 8. and then borne through the Forum. with perfect resignation. with a little food. .282 ANCIENT PUNISHMENTS.. a lamp..^* On her conviction. According to the law of Numa. the poor creature was stripped and after being scourged. 14. to the Campus Scele- ratus. let him deny himself. and take up his cross and follow me"?32 not Christ Himself say Burying applied in alive. and a table. p. delivered who led her down into the subfilled cell and drew up the ladder and 24. iii. "Dions. with all of her vittae and other indicia of ofBce the ceremonies of a real funeral.

in pursuance of her God-given instincts. p.''*' Philip Augustus is said to have put a French provost to death in this cruel the year 1302 fashion. drawing and quartering been first is said to have introduced in England in the case of William 40. because of the crime of perjury. Vol. Mon. Ix. the murdered and his murderer being interred in the same grave. to Fleta. p. II. ii. " Gentleman's Magazine. in England. for his 46.^^ thus forever con- signing to mother earth the body of her wayward pagan daughter. regarding a transaction in connection with a vineyard^''^ and in the thirteenth century in Bigorre. this punishment inflicted for was murder. 54. who. p. . Pollock and Maitland's History English Law. a woman was buried alive for some petty thefts which she had committed. law. " Rawlinson's Anc." mentioned in the Hanging. 313. p. Ant. an early day. Gr. complicity in her awful crime. the poor lady's & Rom. The gallant French gentlemen also reserved this horrible punishment for women and we read that during by order of the Bailli of Sainte-Genevieve. " Ante idem.^* the unnatural crime at One performing was also buried alive. 556. for is of Egyptian and Eoman hundred Twelve we find that it existed at is Eome five years before Christ and Tables. "Idem. 366. Smith's Diet. By a beneficent paramour was simply scourged to death. 367.^® . "Fleta.ANCIENT PUNISHMENTS. "Dions. "with earth 283 even with the ground. had violated the unnatural law of the barbarous days of ancient Eome. Niehuhr. according Drawing and quartering origin.

it Maurice. your body is to be taken down. your head is then to be cut off and your body divided into four quarters. Vol. p. who was more compassionate in this was in the cases of witchcraft. According to the terms of a sentence imposed by Lord EUenborougb. where no punishment could be found too severe. case than he James I. but not until you are dead for. who was tortured and drawn and quartered. in his attempt to blow up the king and his parliament. "' Gentleman's Magazine. the favorite of King Edward II. while still living. " Ante idem.** " Gentleman's Magazine. gave orders that he should not be cut down until he was dead..*^ On the execution of the Jesuit. 496. while each quarter of his body was sent to each of the four principal towns of the kingdom. in 1326. where you are to be hanged. p. and his head was sent to London.*^ althougli afterwards be- came quite common. in 1606. as a punishment for treason. 46. p. as Spenser. 368. the criminal convicted of treason to be thus punished was addressed as follows: "You are to be drawn on hurdles to the place of execution. 46. was put to death at Bristol. after he was taken with the burning match in his hand. in 1241. "Ante idem. a pirate. . Vol. so that he might be spared the tortures of drawing and But no such mercy was shown to Guy Fawkes.*^ quartering. in similar cases. 284 ANCIENT PUNISHMENTS. your bowels torn out and burnt before your face. Garnet. in what was known as the gunpowder plot. " Green's History of England."*^ Hugh tered. the same year. 368. and his body was quar- was the custom of the period. in England.

*^ was a punishment provided for poisoners. i. seventeen persons in the family of the Bishop and others of his friends were poisoned. in England. the inhuman crime which brought about this harsh statute was such as to call for unusual handling. p. This statute was passed in 1531. . Reeve's History English Law. made treason and Eoose was ordered the offender subject to be boiled to death and in order to deter others similarly situated it from perpetrating such a cruel crime. Munim. if not for such barbarous punishin a vessel ment as this act provided. The enormity of the crime caused wide-spread indignation and such crimes were to attainder. in "Select PI.*^ Shakespeare makes the indignant Paulina. 285 During the thirteentli century. "IV. Under the reign of this monarch. every wilful murder by poisoning. 427. One Eichard Eoose had placed poison of yeast in the Bishop of Eochester's kitchen and as a result of eating bread in which this yeast was used. II. the usual punishment for petty treason was hanging and drawing for a man and burning for a woman. 9. the power Crown was extended to cover powers not before nized and while it is of the recog- difficult to concede reared under the broad influence of the how citizens common law. refer to this statute. 101. was also provided by the act that henceforth. " 22 Henry VIII. her reproachful speech to the Lords. could be brought to consent to such unusual and cruel punishment for any crime. Cr. 191. pi.ANCIENT PUNISHMENTS. Pollock and Maitland's History English Law. 511.** Boiling in oil during the reign of Henry VIII. p. should be high treason and that all such offenders should be boiled to death. Gildh. c.




after the good Hermione's incarceration, in Winter's

when she asks
"What studied torments,

What wheels?

tyrant, hast for me? racks? fires? what flaying? boiling

In leads or oils? What old or new torture Must I receive, whose every word deserves To taste of thy most worst?'""

Margaret Davy, a young woman, convicted of murder by poisoning was also boiled to death, as provided by this statute, in 1542,^° but this was the last victim to suffer such inhuman punishment and the act was
soon afterward repealed.

The misguided efforts of the Church of Eome to punish heresy by use of the Inquisition, brought about
untold suffering and misery in the world.



was a tribunal

of the



Church, for the discovery, repression, and punishof heresy, unbelief

and other offenses against religion. The emperors, Theodosius and Justinian, appointed officials known as Inquisitors, to look out and punish such offenders. They proceeded however in the name of the Emperors, in the secular courts, and no


regular tribunal for the handling of this kind of


leged criminals, existed until the year 1248, after the

fourth Lateran Council, held in the reign of Innocent

when Innocent IV,

for the prosecution

established a permanent court and punishment of this class of

The Winter's

Tale, Act







in Shakes-


186, Sec. 146.
46, p. 364.

" Geptleman's Magazine, Vol.

As late as the sixteenth century, in England, counterfeiters were punished by being thrown into boiling water. Gentleman's Magazine,
Vol. 46, p. 364.



The prosecutions

Tinder this constitution

were purely

and for the next century, and Germany, the Pope, by appeal, regulated the severity of the punishments inflicted by the local authorities and the punishments were not so severe as they afterwards became.
in France, Italy, Spain

in the ecclesiastical courts,

In Spain, during the reign of Ferdinand and Isabella, on account of an alleged plot to overthrow the monarchy,

application to

by the Jews and Heretics, in the year 1478, on Pope Sixtus IV, they were permitted to

take over, as

were, the whole tribunal formerly
affair, into the

handled as a Church

and with


hands of the State, new regime, the Spanish Inquisition had

its origin.


were now appointed by the


instead of the Church and under the career of

de Torquemada, in 1483, the reign of terror
in Spain.

Thomas commenced

Llorente, the historian of the Inquisition,

number of persons burned to death, during Torquemada 's tenure of office, in sixteen years, in Spain, at 9,000, and during the term of office of the
places the

second head of the Inquisition, Diego Deza, in eight

met a similar death, by fire, as this was the customary punishment inflicted upon this hated class of innocents who opposed the ruling powers in Church and State.^^ The procedure of the Inquisition is not without interest. The person suspected of heresy or unbelief, was arrested and thrown into prison, to be brought to trial when it suited the pleasure of his judges. The proyears, 1,600

ceedings of the trial


the unfortunate one






brouglit into court,


were secret lie was not faced with accusers, nor were their names disclosed. The evi;

dence of a guilty accomplice, without corroboration,

was received against the accused and the person undergoing trial was liable to be put to torture, in order to extort a confession from him. When convicted, the punishment was death by fire, or on the scaffold, imprisonment in the galleys for life, or for a term of years, with forfeiture of his property, and civil infamy, if the offense was deemed not of sufficient gravity to
justify burning to death.^^

After confession, under torture, the prisoner was
customarily remanded to prison and
before the judge,

when brought

he persisted in his profession, he

was condenmed. If the confession was witEdrawn, he was tortured again and if he recanted a second time, he was tortured a third time, for while the theory was
that he could not be convicted, unless he let his confession stand, he

was tortured

until he confessed


was not allowed to voluntarily retract it, oftentimes.^^ Three judges were necessary to approve the infliction of torture to extract evidence from a person accused, in the reign of Ferdinand and Isabella,^* but this law was often violated and the strappado, the scourge, hanging the accused by the arms, while his back and legs were loaded with heavy weights, fire, applied to the soles of the feet and pouring water down the throat were a few of the many tortures applied^^ to extort confessions from the poor unfortunates who fell into
" Lea's "History of the Inquisition." Lea's "Superstition and Force," (3 ed.) 404. °* Lea's "Superstition and Force," (3 ed.) p. 409. "Ante idem. 407, 409.

the hands of these religious zealots,


imbued with a

superhuman inclination to torture their fellow-men. Of course the subject of the Inquisition is too large a field to attempt to do more than refer to its influence upon secular law in these pages, for while it continued
unabated for centuries in countries subject


Church of Rome and was not abolished in Spain, until the reign of Joseph Bonaparte in 1808,^^ in inaugurating a system of punishment for extracting evidence from the accused, its influence was wide-spread in all other countries, where the same system of punishment was carried and with time the same vile procedure was used in most other countries of Europe, in one form or another,^^ and with its examples of torture, which were gradually adopted in other countries, the equally baleful influence of the secret procedure, which was exemplified in the Star Chamber in England and the Chatelet of Paris, with the accompanying inquisitorial process, followed in the wake of this hateful institution of the
middle ages.^*

The Grand Chatelet

of Paris, as the seat of the crim-

inal tribunal of the realm, has a record second to no

other criminal court of the same age for atrocious



upon the poor unfortunates who

were brought before the court, seeking justice.^* It was the custom to torture all malefactors, or alleged criminals, brought before the criminal division
of the Chatelet of Paris, in the fourteenth century.
™ Llorente's Istoria de
sition." la Inquisicion


Lea's "History of the Inqui-

" Ante idem. "Lea's "Superstition and Force," (3 " Du Cange's Questionarius.





customary procedure was accordingly divided into two classes of cases, those known as ordinaire and those
called extraordinaire.

In the former class of cases


quests were held to determine the guilt of the accused

and in the latter inquisition was had, in which torture was habitually employed to secure a conviction.'**' The procedure was left entirely to the discretion of the criminal judge and in a short time the judge rarely found a case for inquest, but all cases were treated as within the rule proces extraordinaire and a merry
chronicle of crime against criminals .was here inaugurated, for long

and tedious


The only redeeming feature of the procedure of was the universality of its punishments, for noble blood was made to flow equally with the plebeian, and none were exempt from the torture, who were
this court,

brought before

this court.

If the culprit denied the
at once, to secure a con-

alleged crime, he

was tortured



he confessed he was tortured for conif


the other hand,

he failed to confess,

"L. Tanon, Registre Crimenel de Champs, Introd. p. 85. " Ante idem.




In applying tlie ordinary and extraordinary question, in France, by means of the estrapado, an iron key was placed between tbe palms of the accused's bands, and they were tied behind his back and, by means of a rope passed throiigh a pulley, in the ceiling, he was raised twelve inches above the floor with a weight of one hundred and eighty pounds to his right foot. This was the "ordinary"

In applying the "extraordinary" interrogation, the same

process was used, but the accused





the ceiling,

with a two hundred and fifty pound weight tied to his foot, in a running line, two or three times, with the result that he usually swooned before the ceiling was reached the last time. (Gentleman's Magazine, Vol. 46, p. 504.)



was no limit to the torture inflicted to extract a confession from him, so frequently it happened that
in the effort to find out if a crime

the poor unfortunate



were really committed by the torture to which

he was subjected."^ In 1338 one Jehannin Maci,was arrested and brought
before this cruel court for stealing a brass pot, found
in his possession. After torture, he confessed the crime

and was drawn on a hurdle and hanged.®*
Gervaise Caussois

—peace to his ashes—^was brought

before this august tribunal for stealing some iron tools


promptly confessed.

confess he was tortured and Thinking he might be guilty of other offenses, he was tortured again and then under
to induce


the strain of the pain he suffered, he confessed to other

petty crimes,

when he was again tortured by use of the tresteau, when he again confessed to another petty misdemeanor when the judges mercifully caused him to be hanged, without more ado, thus ending his
In 1390 poor Fleurant de Saint-Leu, was arraigned
before this heartless tribunal for the awful crime of
stealing a silver buckle.



denied the crime and was





when he
his first

finally confessed,

but protested that



The merciful judges, out

of the goodness o±

their hearts, decided this offense, being the first, did

not merit death, so on the same day he was tortured
thrice, to ascertain if

he was not guilty of some other

'"Lea's "Superstition and Force," (3 ed.) 441, 442.

""Registrae Criminel de Chatelet de Paris,


"Ante idem,

p. 36.



offense for which he could be killed; this failing to

bring the desired result, he was again twice tortured,

when he admitted

that three years before

wittingly married a prostitute,

he had unwhen he was afterwards
sufficient offense, to-

hanged, as this was found to be a death penalty.*^

gether with the stealing of the buckle, to justify the

Poor Marguerite de la Penele, accused of stealing a was tortured until she confessed and as she could not satisfy the human hyenas who were trying her, for some money found upon her person, she was again severely tortured and although no further confession was extracted from her she was buried alive."" The question ordinaire and extra-ordainaire, as put

to the wretches

brought before this criminal court at

answered by the accused while fastened to the wall, on a trestle or sliding table, with his wrists fastened in two rings; his mouth was forced open with a horn and water was poured down his throat, until he answered the question whether or not he was


to be

guilty of the offense charged against him."^

Another form of torture used

in the

Chatelef at

was what was

called the "boots," being solid

boards, pierced with holes, encasing the


to the

Eopes were inserted through the holes and drawn so tight, by means by pegs of wood, driven into
the holes, as to almost break the bones

and twist the

flesh off the legs, if the

accused persisted in refusing

Register Criminal du Chatelet de Paris, 201, 209.
p. 322.

284, etc.

" Lalanne, Recueil des anciennes Lois Francaisse, tome, xx, pp.

where a similar instrument. but was imported from Italy. 46. Ante idem. 371. giving this town a right to use it for petty larceny of any article exceeding thirteen halfpenny. kaown as the Mannaya. ''^ . " Ante idem. H. Vol. in 1632.''^ Doctor Joseph is Guillotin brought the same engine of death before the National Assembly. 1789 and he generally recog- nized as the inventor of this terrible machine. Vol. Hollnshed's History. " Holinslied Gentleman's Magazine. Davenport Adams. "Ante idem. as generally supposed.'^* The Massola was used in Italy.''^ It was used in France and at Toulouse. at an early date. 46. p. . for the alleged reason that under such stress of punishment men would confess to anything.^* This hor- and barbarous practice was not completely abolished ia France. 46. " Article by W. because of the special charter. was the engine which accomplished the execution in the sixteenth century it of the Due de Montmorency. to confess the crime rible 293 charged against him. "The Gentleman's Magazine.ANCIENT PUNISHMENTS. p. when the monarchy repealed the law authorizing such cruelty. p. 372. Vol. had been used for centuries before it was used either in France or England^" It had been used in England long before it was used in France and was known as the Halifax Maiden. 506. until the year 1788.® ® The Guillotine was not a French invention.''^ but a similar instru- ment had executed thousands in Italy centuries before it was known or used in France. in December. entitled "Pains and Penalties:' '"History of Jean D'Auton. which was used to decapitate so many of the nobility during the terrible French Eevolution. in Gentleman's Magazine.

Herodotas. Mon. upon alleged criminals.. 478. sons.. stripes. Mon. "Lea's "Superstition and Force. and by use of the former machine.'^® plucking off the hair. 246. '"Exodus. Josephus.. IV..s Anc. IV. XXI.*^ '° upon all classes of criminals and accused per- The Geritlemaii's Magazine. the heavy hog-skin whip. 194. ""Rawlinson's Anc. 4. the criminal was stunned with a blow from much as the butcher slaughters the ox or hog by striking him on the head and then while stunned. IV. Vol. . 20.*^ the stocks. 2. Rawlinson'.'^^ But let us turn from the contemplation of other inhis throat struments used to accomplish the death of the criminals of the middle ages.. the rack. "2 Samuel. VIII. a mace.®^ the wheel.. Rawlinson's Anc.294 along with the ANCIENT PUNISHMENTS. HI. Stanley's History Jew. Mon. 7. '>2 Samuel. 64."' branding. Mannaya or guillotine.. 2 Corinthians. ™ Rawlinson's Anc. 7. i. iii. "l^eviticus.. and other lesser punishments. XII. Persians. was pierced with a long knife and his chest was ripped open. Ant. as it was after- wards called. the comb with sharp teeth. 24." (3 ed. in France. 31. the burning tile.''® cutting off the hands or ears. 2 Kings. iii. 46. XIX. '" 2 Samuel.. 12. 24. 370. were a few of the lesser punishments inflicted by these and other peoples for many lo^ig and tor+uous years. XXV. Mon. Ch. These were only some of the most prominent methods of inflicting capital punishment among the old Israelites.''^ flaying. and the injection of vinegar into the nostrils. X. p. VIII..) 375. Greeks and Eomans.^" scourging with thorns. and examine some of the milder forms of punishments in vogue. the low vault in which the culprit was bent double. such as mutilation consisting in blinding. 21. XI.

according to the greatness of the offense."^* etc. Rawlinson's Ana. Ant." etc. XXIV. Josephus. VII. Leviticus. but it was seldom used among the patriarchs in old Israel.^® William the Conqueror prohibited his nobles from inflicting the death penalty upon criminals who for- merly suffered death by hanging. .. "' Rawlinson's Anc.. lost the hand that operated upon the patient and for other offenses.*® and in Persia this rascality. 24. was claimed to have been authorized under the law of retaliation. by having their eyes pulled out. "Esther." etc. thieving method of punishment was inflicted for and rebellion. by having their hands and feet cut off. them from doing further harm and an example to others of the enormity of the punishment for such an offense against the government. The Assyrians and Babylonians used in order to prevent to furnish this means of torturing the criminals convicted of rebellion or revolt. they were subjected to castration and to mutilation. but in lieu of this more humane punishment. XXI.ANCIENT PUNISHMENTS. .. 295 Blinding. 8. a surgeon of who performed an unsuccessful operation. Mon. "an eye for an eye. mutilation and blindness was provided for by this ancient code of laws. Mon.*'^ According to the Code of Hammurabi. he authorized that criminals convicted of certain felonies should be blinded.500 years before Christ's time. "'Exodus. " John's "Babylonian Laws. adopted some Babylon 2. xinder the Mosaic dispensation.^^ We read in the book of Esther that such criminals were not permitted to look upon the king. 20. " John's "Babylonian Laws.

p. 46. 229. as late as Wigorn. Michelet.^^ who had formerly been subject to the punishment of blinding or mutilation. being convicted of stealing a pair of hedg- ing gloves and a whetstone.^^ This punishment by blinding and mutilation continued but a short time. Weston Eegis. Gentleman's Magazine. in Bedford- who. In Switzerland. "'Herbert's Antiquities. "'Ante idem. "1 Fox's Martyrology. fol. 153. end that they might live and furnish a horrible example to others committing such crimes. in 1243. Annals.. a perjurer was liable to punishment by having his lips and nose re- moved. and through his devout prayers.296 to the ANCIENT PUNISHMENTS.®* religious Cutting off the ears was a punishment inflicted upon and political criminals in England. blasphemers were subject to having their lips and tongue cut off^^ and under the custom of Avignon. IV.90 Fox. "" Flor. in the year 1108. at the shrine of St. for King Henry I. had these several kinds of punishment inflicted upon them. of shire. they were restored to him again. p. by this harsh law of William the Conqueror. Ann. in the ninth year of his reign repealed this law and provided hanging for felons convicted of theft or robbery. Vol. in the eleventh century. p. at an early day. lib. in the reign of lost Henry II. however. 154. Thomas of Canterbury. 495. convicted of treason. reports a miracle in the case of Elivard. . in his annals. in his work on Martyrology.*'' . '"'Herbert's Antiquities '" (1804). According all to Wigorn. his eyes and genitals. 1098. certain Welch- men. in England.

®^ and thus ended another fear- example of misguided authority and religious and torturing three patriotic citizens who violated no law and who had committed no other offense than to speak plainly and then dared to refuse to bow the knee to an authority they did not ful bigotry. 297 the seventeentli century and the notable case of Bastwick. "Gentleman's Magazine. After the fearful ordeal was completed they were all three returned by the officer to the prison. so as to injure him the least and asked him to lop them close. Brandmg with a hot iron. was a punishment inflicted 46. that it might not be necessary for him "to come there again. who had their ears removed one time. in the year 1637. The prisoners were place of execution. in thus pillorying recognize. at the The sheriff commenced with Burwho was an especial favorite with the by-standers and when he removed each ear the people wept and groaned and roared as if each one in the assembly had his own ears removed. 373.ANCIENT PUNISHMENTS. such was the religious zeal with which they were all three sustained in this act of martyrdom. in the Palace Yard. in London. illustrates the barbarous cruelty then obtaining as to this class of criminals. all favorites with the crowd. Vol. but the officer the stern old Puritan endured it without a groan. it gave him great pain. Bastwick loaned his own knife to and made use of his professional information to advise him just how to remove his ears. . ton. all at Burton and Prynne. who strewed flowers and nose-gays around them." Prynne had had his ears roughly cropped off three years before and when the officer again attempted to remove what remained.

194. 148. and this form of branding is regulated by statute and of late years ink. this or other material the is used.®'' the hand. to identify the animal. 9.ioo it By Mutiny Act.. »» Leviticus. of was provided "On the " Rawllnson's Anc.®^ much as horses are branded by the owner. 523. upon the identified who were deported. on the shoulder. It has not been in use for years. except in desertions from the army or navy. by the ancient Jews. land was a 138." pp. was a mode of punishment used for various offenses. branding was used in the case by burning in the hand. Branding was used by tbe American Colonists and In New Engcommon punishment for Quakers. in the western country. ""21 Victoria. 1. in order that they could subsequently be and to furnish fact that they an example to others of the had paid the penalty of the law as a In Biblical days. branding with a hot iron.298 ANCIENT PUNISHMENTS. branding on the forehead was also used. p. The iron used had the form which it was desired to leave on the culprit's skin. 1858. but law was repealed in 1829. for such disfigurement was forbidden by the code of the old Israelites. sec. " Hastings Diet. 35. but this was not in accordance with the Mosaic law. c. as a Slaves were sometimes branded on mark of shame. XLIV.) . 5. »» Isaiah. ii. In the middle ages. instead of a hot iron.. with a letter "H" for Heretic. who were branded with red hot iron. (Alice Morse Earle's "Curious Punishments of By-Gone Days.®* Formerly. in England. of Bible. of all clergyable crimes. XIX. 28. Mon. when burn- result of their misdeed. in England. class of criminals by the Persians."" ing was inflicted as a punishment for adultery or fornication.

. was not always confined to the American Indians. for desertion. * tliat "In those days.. and to be marked upon the skin with some ink or gun-powder. may order the offender to be marked. and smote certain of them.: ANCIENT PUNISHMENTS." Nehemiah. 23. who first killed their man. in addition to : And according to the Biblical account of this ancient and severe punishment. Plucking ojf the hair. with the hair. or for yourselves. then removed the Israel. 25. without the use of a knife I married wives. such letter not to be less than an inch long. so as to be visible and conspicuous. scalping. "*"2 the court-martial. saying Ye shall not give your daughters unto their sons. and cursed them. but they tore off the hair in such a brutal and barbarous manner. as late as the Victorian age. as to remove the skin by main '" force. ^"^ According to the prophet. nor take their daughters unto your sons. of I contended with them." This. inflicted upon Jews who had indulged in mixed marriages. shows the early training of tJie English upon the custom of punishment by branding. for he says "I gave my back to the smiters and my cheeks to them that plucked off the hcdr I hid not my face from shame and spitting. but according to the inspired word of the Jews. and made them swear. inflicted upon criminals in old were not as compassionate as the American Indians. first 299 and on every subsequent conviction. in old England. 6. or scalping. on the left side. and of Moah * * And "' Isaiah. and plucked off their nair. XIII. as a judicial practice was common in his time. it was a form of punishment. any other punishment. of Ammon. and not liable to be obliterated. they scalp with a knife. also saw liad Ashdol. Jews. two inches below the arm-pit. by God. in Isaiah. L. in ancient Israel. or othfr preparation. with the letted D.

25. on account of his cowardice and his skin. retained the form of the limbs.i"^ Along with this atrocious punishment of flaying. iv. i. and covered the judgment-seat with his skin." etc. 47S. iil. and in this "^ 2 Mac.^" Flaying. when torn backward off his body. as a warning to the next judge to be more careful in his judgments and deof judges. v. from his head to his heels. . in the year 277 and his skin was after- wards stuffed with straw. much as modern taxidermists stuff the skins of wild animals. ""Gibbon's Rome. "' Rawlinson's Ancient Monarcliies. Layard's Ninevah and Babylon. was a punishment in vogue sians among the Per- and Assyrians. one of his generals by flaying him alive. and in this shape it was posted at one of the gates of Djondischaour.^ 300 ANCIENT PUNISHMENTS. 7. '" Herodotus. the Assyrians would flay the victim. VII. known as Sisamnes but actually flayed him alive.. from which it had been stripped. "'Ancient Monarchies. the Persians also seem to have been addicted to the recall Herodotus tells how King Cambyses not only recalled an unpopular judge. and according to Eawlinson. 246. king of Persia. or other instrument to angment or ameliorate the suffering of the criminal. even after life was extinct^"* and the Persians were accustomed to flay and then crucify the criminals and Herodotus states that they used the skins of human beings thus obtained.i"^ In the sixth century Chosroes punished Naeoragan. Herodotus. 64. by Behram.^"® for crees. ante. '"" John's "Babylonian Laws. ^"^ Manes is said to have been flayed alive.

handed him over to the Judge of Avignon. Count of Flanders. was that the vultures could pluck out his eyes and otherwise Charles le "'Argathiu's "Life of Justinian. representing a broken wheel. but one or inflicted two cases are recorded. St. with jagged edges or spikes. of the punishment they would be subjected to if also juilty of cowardice in the discharge of their duty as Flaying is soldiers." '" Martin's "Les Yies des Saints. so tury. Bishop of Cahors. for sorcery. during the middle ages and down to a comparatively recent period. instituted iu her honour. in 1063. the wheel was shattered. in the twelfth cenbound to a wheel suspended in mid-air. hence the embroidered tunic worn by the Knights of Mount Sinai. after which his remains were burnt.^" The Wheel was used as a method of punishment in France and England and other countries. after the convic- Hugues Geraldi." . who caused him to be flayed alive and then torn asunder by tion of four horses. by Divine Grace. who was implicated in the murder of Bon. as a terrible example to other soldiers. 301 was sown up and inflated and exposed on a Mgli projection. a religious order. in 1314. Catherine. and Pope John XXII. in 1317."® of rare appearance in Europe." ""Bertrandy's "Un Eveque Supplicie. Philip the Fair is said to have such punishment upon the lovers of his sisterin-law. of Alexandria is said to have been put to death on a wheel. According to the report of her case. after the fashion of a modern chaff-cutter.^ ^^ Bouchard. during the torture.ANCIENT PUNISHMENTS. it manner. which tore and cut her tender limbs. with spikes.

^^® "" And he Segur's Memoirs and Anecdotes. 16. when they were successful in subjugating another race of people^ '^ and they did not hesitate to apply the scourge on this all occasions. to avoid being further scourged in this manner. '"Judges. was another form of punish- ment inflicted upon the peoples of other tribes. shot into his quivering body. he was finally put out of his misery. "= I. torture him. After Ms eyes were torn from their sockets and torn by the sharp beaks of the birds of prey.^^* Knotted sticks. . ^"Judges. or ropes. XII. he scourged them. 2. VIII. Samuel. 11. by darts and javelins... VIII. "^ Scourging with thorns.. "» 2 Kings. when the men of Succoth were delivered into his hand he took the elders of the city and with briars and thorns. VIII. David smote the Moabites with a line and east them down to the ground and he scourged them and they became his servants and brought him gifts. with thorns. or iron points were customarily used as instruments of chastisement by the Jews.. 7. so that it would be advertised abroad and cause other timorous nations as a to voluntarily submit to their authority.302 ANCIENT PUNISHMENTS. Gideon threatened that when the Lord of Israel should deliver Zebah and Zalmunna into his hands that he would tear their flesh with the thorns of the wilderness and with briars. ^^^ And according to the Divine word. by the good old Jewish patriarchs. by the bloodand his face slit thirsty mob below. as they regarded method of teaching foreign nations their strength and their power to punish.

was used as a punishment for "scolds" and "slanderers" in old England and by the early American Colonies. in Georgia. Virginia." by Alice Morse Earle. exposed to the public gaze of this ridicule of the passers-by. Maryland and other of the American Colonies." by Alice Morse Earle. By means and of this instrument. in the Oconee Eiver^^" and in Washington. one instrument of punishment and we read that in good "James Woodward was sett in the bilbowes. 303 brought the children of Ammon out from the cities and not only scourged them with thorns and knotted sticks. p.*'*^ The DucJcing-stool. in August. according to the interesting book on "' 2 "' p. for being drunk at tlie Newetowne. so it could be lowered into the water. idem." the name Cambridge then went by. as a scold or slanderer. provided for the use of the ducking-stool and other similar correctionary punishments. the culprit was held with his feet aloft. but subjected them saws and arrows of iron and made them to pass through the brick kiln. 1632.^" to The Bilboes. on his back. a stool or seat. at an early day. 31. 20. 17. "Curious Punishments of By-Gone Days. 25."^ As late as the year 1811. "» "Curious Punishments of By- Samuel. one Miss Palmer was sentenced to be ducked. pp. XII. ^ Ante .. 5. were used in Spain and England. with iron pikes in the sticks. by statutes. for slanderers and other petty offenders.ANCIENT PUNISHMENTS. arranged at the end of a rope tied to a long pole. "Curious Punishments of By-Gone Days. The American Colonists made frequent use old Massachusetts.

29. in England. 46." by Alice Morse Earle. The Grentleman's Magazine. Editor of the "Washington Paul Pry. the manners and morals of many an early patriot were mended by the use of these instruments. New Hampshire." Vol." The Tower rack was in the long vaulted dungeon below the Armoury and continued as an instrument of torture for many centuries. p.^^^ The Rack was a wooden framework. According to Lord Coke. were used on different classes of petty criminals. "'The Gentleman's Magazine. almost in our own day. Vol. "^Ante idem. and in Massachusetts." pp. it was a customary means of torture and in 1580 the Jesuit Priests concerned in the alleged Jesuit Invasion. criminals were also punished by the Many American CViIonists by use of the stocks and the pillory. in which the culprit was fastened and by means of ropes and pulleys his arms and legs were violently stretched and pulled until the tension caused the most intense pain and frequently the bones were broken by the use of this fearful appliance." was sentenced before Judge William Cranch to suffer punishment by being ducked in the Potomac Eiver. by the Duke of Exeter. 499. "The Duke of Exeter's Daughter.^^^ The Stocks graced each parish. Anne Eoyal. 373 Alice Morse Earle's "Curious Punishments of By-Gone Days. in 1467.^^* p. Virginia and Maryland. 43. During the reign of Elizabeth. . Mrs. 46. were terribly racked to compel them to disclose the names ^'^ of their leaders. Gone Days. p. the appliance was first introduced into the Tower. 28. . in England. at an early day and along with the pillory and the rack. and for this reason it was called.304 ANCIENT PUNISHMENTS.

: ANCIENT PUNISHMENTS. in Merchant of Venice. yet oft-times terrible and fearful examples of the customs and procedure of other days. with a tongue of iron to be placed in the mouth." was an flat iron hood. around the face. . in England. Thus. over the tongue. II. this tor- ture system began to decline and in most civilized countries. used indiscriminately.^2^ all such Fortunately. Scene. Where men you speak upon the rack.. Alice Morse Earle's "Curious Punishments of By-Gone Days. for many years. enforced do speak anything. It was used on the poor unfortunates during the Salem Witchcraft craze and many an old dame in good old England was made to bridle her tongue and desist from gossiping or hentied in a public place. ridicule of the passers-by pecking her husband. with the ' ' dawn of better days. Portia refers to the enforced statements of Bassanio "Ay. 118. with is that such things lasted as long as they did in a growing. 116. because of the fear of the "scold's bridle" and the gag. such crimes against criminals ' ' are now but curious and quaint. 105." pp. but I fear. ^ 96. of torture. For many other references to this instrument by Shakespeare. increasing world of knowl- men who sought attain the higher ideals '^ the truth and attempted to and who should have been Act III. in cases. known as the "Scold's bridle. to section 82. It was applied. The strange thing edge.'"'" The Brank. in White's "JLiaw in Shakespeare. so generally used during his time. see note. with a ring. in both England and America. with the "scold" or slanderer where she was subjected to the and was generally used to correct scolds and fussy women." pp. 305 this in- Shakespeare makes frequent references to strument of torture.

ghastly dream. frequently was less guilty than his judges. needing cor- rection. which me alone doth harm or hurt. for centuries. and. all Good was banned as Sin or Crime. Would that future generations might be fully emancipated from the selfish creed which calls that good. in the veriest span of Time.306 ANCIENT PUNISHMENTS. forth. in the slow evolution of the human race. when." . "the marvel is that man can smile. dream- ing his ghostly. When we stop iand contemplate the enormity of as recorded in the lessons "Man's inhumanity to man. like ravelled skeins. all men now dread to think of the time when innocence and goodness could be so crucified. the alleged criminal. in point of fact. Each Vice has worn a Virtue's crown. imbued with the love of their fellow-man. who through superstition and delusion. yet for two thousand years. to teach him the bet- ter path to tread." The basis of such misanthropy lies in the fact that criminals have been treated as enemies. he was only a mistaken man. connect and blend. which the sufferings and mistakes of the past had." of the past. led them to emulate. if guilty. were led to endorse the cruel domination of such misused force. and. which works me weal and holds that ill. they shift "They change with with race. cross back and For our lives. but not torture or death. other innocents and good men and women have been tortured and racked by men and women holding the superior power and authority over the masses. place. With the striking example in history of the horrible punishment by Crucifixion. to such an extent that mankind has warred upon them and com- mitted deeds of war.

^ Historians and law writers have told us that the will. that decided that a given windstorm was not a cyclone.. or want of knowledge of the fact asserted. 2 Bl. Ch. p. of the individual acquisitions. 4. ^ Redfield. in connection with the history and forms of antique and testamentary dispositions of property. (307) .CHAPTEE XI. Comm. much as the court did. is one of the results instinctive of man's social condition. akin to self love. on Wills. con- with existing rules of law. on Wills. Ancient Wills. by will. are of extremely ancient origin. which looks to the preser- vation and alienation. . Introd. writers are frequently given to accepting and repeating the statements of others. Indeed. There wills. p. is a vast amount of interesting information. resulting from personal endeavor. as we know it. XII. 1. A last will and testament is the instrument whereby one disposes of his property. in one form or another. Wills.^ The sistent right to dispose of one's property. 1 Harris. without investigating the facts upon which such statements are based. II. according to the intent of the owner. to take effect after his death. but in this statement the testimony of others is accepted as establishing the fact. Ch. rather than the knowledge. is a Eoman invention. where the conclusion was based wholly upon the evidence showing that the clouds lacked the funnel shape "1 Redfield. based upon an sentiment. Quaint and Curious. 499.

) In the division of property. in case of a testamentary devise and the State.^ And ' Judge John P. in heir. There is and other primary evidence of the fact asserted. Ch. 12. which the opinion failed to note. to 2 B. (See interesting Essay by Professor Bigelow. distribution. 'Chitty's note. in reaching the conclusion. vision.> but it was changed when the attention of the writer was called to the existings facts. ' Harris. The reason and for recognizing. Ancient Wills. evitrees. pp. long before the date of the Twelve Tables. p. If there were no such prothe on the vacancy of the property. the and denced by the twisted trunks of giant houses awry was wholly over-looked. as a mediary. 503. circling motion. ' Genesis.^ and wills were used in Rome.308 WILLS. on the death of the last owner.* Solon them into Greece. 778. Kent's Comm.* is evidence that wills were used in Egypt centuries before they were said to have introduced known in Europe. The owner." or authority to make a will. It is to be regretted that historians and law writers cannot so amend their works. XV. QUAINT AND CURIOUS. a right of disposition of property by will. an unseemly scramble would result. Essays In Anglo-American Legal History. "Title. in case of intestacy. after his death and this was. the prevention of a instinct. which would be both undesirable and contrary to a sound public policy. . in a case similar to that referred to in the text." Abraham. virtually. failure of the social vacancy and the which furnishes the foundation for society and order. is thus based upon the social instinct and both wills and intestacy statutes are in furtherance of this purpose. Philips advised the writer that an opinion was prepared by a member of the federal court and submitted to him for his concurrence when he was on the bench. "Plutarch's Life of Solon. in III. his lament of the want of a legitimate appointed the steward and servant born in his house to take his estate. in same as the law governing the descent case of intestacy. accomplish practically the same purpose. while the effect of the storm. 776. IV. 491. is in law. Comm. the appointment of an heir by will.

but it has all the elements of a death-bed disposition. and the symbolic emblems' to the other sons are distributed. » Genesis. one portion above thy brethren. I have given to thee. Jacob. settles upon his wife. with the knowledge of approach:^ ' ' ing death.® By this document. was recently unearthed at Kahun. Teta. . QUAINT AND CURIOUS. p. And Jacob called unto his sons and said. after mentioning the derivation of the testator's title. before taking his departure from his sons. that from man. as we know him. by the English Egyptologist. or at least in the patriarchial days of the ancient Hebrews. C. for life. which I took out of the land of the Amorite with sword and with my bow. 48 and 49 "Harris. Behold. William Petrie. Egyptian will. that I may ' tell you that which shall befall you in the last days. be seen. in fact. written 2548 B. 309 the Hebrew Patriarch. said unto Joseph but God shall be with you and bring the land of your fathers. Morever. one Sekrehen. a citizen of the time of Amen- An emhat IV. dating back to patriarchial times. all the property given him by his brother.' WILLS. with all the solemnity of a will. a lieuChapters. it From will the beginning of the history of Israelites. with a condition against the commission of waste. you again unto my Of course this is but an oral bequest. and there is also evidence extant that this custom was not confined alone to the ancient these illustrations. Ancient Wills. made under the apprehension of approaching death and it sets forth the "portion" to Joseph. the custom obtained of making testamentary dispositions of property. I die . gather yourselves together. and one Siou. 12.

after appointing Antipater his executor. Ancient Wills. " Harris. with other named friends to assist him in the management and care of his estate. C. from the provision for his daughter. his. 313 History English. "also all my chattels. cash. Adimantes. assasinated in the year 681. he bequeathed to his son. " I. p. B. p. C. Two scribes attest the execution of this will in solemn form and thus we have the indisputable evidence. gold. The written will of the Assyrian monarch. Polloelc and Maitland's . slaves.310 WILLS. as specified in an inventory. QUAINT AND CUEIOUS. who. 348 B. II. at sixty-eight entered upon his final long sleep of death. Esarhadden. such as the experienced lawyer of today would have prepared for his client. Ancient Wills. C. Law. who left "no debts. Sennachis erib. The will of the great Aristotle. for safekeeping." is a model of brevity and concise legal form. in a most reasonable business-like manner. p. is appointed guardian for the infant children.^" is in error. in case of her . Reeve's History English Law. with a provision against alienation." but devised his farms. together with his vase. 13. deposited. in the year 322 B. held and possessed by Demetrius. 14. "in the temple of Nebo. by this document executed forty-six hundred years ago. ivory and precious stones." The will of the philosopher. bracelets. coronets and other gifts of gold. tenant.^^ to his son. proceeds to dispose of his ac- quisitions. 314. that the statement of modern historians that wills are of Eoman origin and were invented by the clergy of mediaeval times. preserved in the royal library of Kenyunjik" and in the form cus- tomarily used in that period. Plato. "^Harris.

Proculus and Valerius. and divided his property between his half-brother.WILLS. osophers of the period before Christ. poets and philhis manuscript of the utors. 2. 510. 491. sec. p. 15. with a few illustraof the quaint and curious. however interesting it would be to follow the testamentary devises of the statesmen. Reeve's History English Law.^* there was no right of disposition by will. for the preservation of Nicanor. 16.^^ pp.^* Virgil died ten years before Christ and his will left Aeneid to his friends and execTucca and Varus. p. to Jupiter and Minerva. Ancient Wills. a twelfth to Macaenas and the rest to Varus. Comm. 16. is just such a sane. Redfield. " 32 & 34 Henry VIII. on Wills. in England. the finishing of his statues and the depositing of the bones of his wife. sensible testamentary provision as one would expect from such an astute philosopher. after leaving a fourth to Augustus. II. including the disposition of various slaves. " Harris. in his tomb. in 1540.^^ but until the Statute of Wills. 311 his marriage. Pythias. will sufficiently lengthen of testamentary disposition of personalty ob- the scope of the present subject-matter. on the part of the owner of real estate. Law. but to trace the origin tions and growth of English wills. 4. 315. IV. Pollock and Maitland's History English. ." to the final arrangements for the offering of the four stone animals. QUAINT AND CURIOUS. "Harris. "2 Bl. Ancient Wills. "even as she desired. "I." But we cannot devote more space in this chapter to •the wills of the most gifted of men of this ancient period. Forms tained in Great Britain at a very early period. 511. p.

tenements or hereditaments could give and dispose of them. as well hy last will. by it. II. Eude. for the good of his soul. statute of wills The ordained that all persons having manors. Reeve's History English Law. primogeniture was held . pp.^° but the testamentary devise. custom continued and one could dispose of after his death. during the reign of Henry I. will is not a product of the The Anglo-Saxon will at all. 326. (IV. or that of his wife. 323. and after the Norman conquest his land. that a great man. =™ Ante idem. but allowed it only in certain boroughs where the custo destroy the tom obtained. in the old books. p. died in Normandy.312 WILLS. 325. pp.^® In Cnut's day it was not unusual this for a man to make a post obit gift of his land or goods. 374. 317. a charter.) . Pollock and Maitland's Plistory English Law. but their origin to the privilege accorded the owed crowned heads and great ones to make testamentary disposition and death-bed gifts of their property. or testament in writing. as we know was not a common instrument this day. QUAINT AND CURIOUS. lands. effective upon his own in death.^^ early Anglo-Saxon law wills were unknown. as by any act executed in their lifetime. p. Eoman In the but is purely a creature of the manners and customs of tlie English people themselves. and made " a certain division or devise of his property. After the middle of the thirteenth century the king's court condemned the post obit gift of land.^^ We read. 322. leav- "II. 316. by charter. as the church assumed the right to administer the goods of the deceased. Pollock and Maitland's History English Law. existing law of succession the church asserted the right to execute the last will and testament of every person and the horror of intestacy increased. p. ='II. Pollock and Maitland's History English Law.

p. I. by the threat of a dying father and the disapprobation of the church. p. Henry I. the estate of one dying was subject to division by those succeeding p. Pollock and Maitland's History English Law. Pollock and Maitland's History Bnglisli Law. as if that of authenticating these documents in use. had been long when he wrote. in England. p. but in the law these gifts were not recognized. horse and mule to the Crown. 313 ing his manor to the ahbey he had built at Colchester. for.^3 under Henry firmations II. Of course the church-men frequently procured confrom the heirs of these post obit gifts of land to the church. and his successor. he compelled the sur- render of the cup. together with a cup and horse and mule but before the King would . one of Glanville's successors as Chief Justiciar . in this period it was can an axiom of the law that "God alone and not man make an mode heir. 118. Beame's ^ Reeve's History English Law. Glanville. ^11. confirm the devise of the manor. 313.WILLS. =» n. Earl of Essex. QUAINT AND CURIOUS. with a hundred pounds and a gold ring. 326. 327.^^ And the post obit gift to Walden Abbey attempted by William de Mandeville. as Glanville puts it. but just when this custom was it is crystalized into law. during the reign of Henry II was also set aside by Goeffrey Fitz Peter.^^ difficult to de- In the reign of Henry III the ecclesiastical jurisdiction in the probate of wills courts assumed and soon thereafter attempted quite generally to enforce the execution of them in payment of legacies."^* Glanville speaks of the probate of wills. "Ante idem. . if the gift was not confirmed. for since the reign of intestate. termine.

in certain boroughs. 125. the bishop exercised practically the same author- ity that the probate judge exercises under our law. when the statute of 31 diction to enquire into such exactions Edward III. further than to mention the custom. by this statute. ^ ^' =' Reeve's History English Law.^* Having thus assumed the entering the jurisdiction over the es- tates of deceased persons. giving the justices of the king's court juris- and oppressions. pro WILLS. III. .^'' ing wills and the estates of decedents — powers concernand this is no doubt the reason why Glanville and Bracton do not treat at length of wills. or that of the injured person. IIL Reeve's History English Law. for the benefit of the intes- and this finally gave rise to the grant of by the ordinary to the next of kin. Reeve's History English Law.314 thereto. anima ejus?^ The church seemed best suited to make this division. 215. in the granting of letters of administration. p. I. from which the custom of issuing letters of administration no doubt tate's soul letters arose. While the church retained control over the estates of decedents. in after-times. in the gradual processes of time. 313. instead of those concerned only about spiritual affairs. 314. either at the instance of the king. of devising land by wilP* ^until the people complained of oppression by the bishops and ordinaries in the exaction of fines for proffhe church continued to execute the — bating wills. was enacted. which was wedge to oust the jurisdiction of the eccle- siastical courts. assumed larger control and jurisdiction over the estates of decedents. Reeve's History English Law. the courts learned in the law. p. QUAINT AND CURIOUS. the listing '"I.

Reeve's History English Law.WILLS. had executors. is that of King Henry 11. " Nicholas' "Testamenta Vetusta. no doubt because for pious purposes. the author of the first English law The English bishops and Glanville were to make division among the religious houses of five thousand marks Norman bishops were to make division of certain sums among Norman elemosinary institutions. . however. Pollock and Maltland's History English Law. . Pollock and Maitland's History English Law. no doubt developed that particular kind of a trustee known to our law of today as an executor or administrator and with the appearance of devise this legal person- ality. another set after the Norman legacies . 124. QUAINT AND CURIOUS.^^ made at Waltham. " IV. p. God's curse was invoked upon all those who his sons violate his laws and the Pope was said all to have con- firmed the devise. were charged with the distribution of a fund to be expended in providing marriages for poor free women. "II." " II. nesses. 335. in compelling fidelity in the performance of the trust. in the year 1182 in the presence of ten wit- among whom we note the name of Ranulf Grlan- ville. book. that the older books refer to. the clergy. granting the letters of administration. with executors. 315 and inventorying of the property and the accounting by the trustee to the ordinary. pp. 335.'* for one set of the trustees looked after the English behests . the may be said to first legally assume the dignity analogous to our present testamentary devise. 334.^" From the delegation of the trust to some personal friend to carry out the will of the decedent. the legacies were The will. others. 123. his justiciar.^* One of the earliest wills.




those left to institutions in Maine and Anjou, and
these several executors, save only Glanville, were

all of

from among the
But few of


this evidences the


regard in which this monarch held his learned
the thirteenth century wills


have come
in the


to us,


we have an ampler supply

fourteenth century. In the thirteenth century, the will

was usually made
English language

in Latin

and wills written in the began to appear generally in

the second half of the fourteen century.^*

In the year 1268, or the 53 year of


III, "William

de Beauchamp executed a wilP^ that looks very like

modern documents, except


only provided for







than to the church. It provided that his horse, fully
harnessed, with

military caparisons, should precede

the hearse bearing his corpse
his soul;

provided for masses for

gave a house to the church for his own soul and that of his wife; a behest to his son, Walter, to
defray his expenses in a pilgrimage to the holy-land;

canopy and a book of Lancelot; a silver cup to his daughter Isabel, rings for his friends, with small legacies to others and a house for
to his daughter, Joane, a

the church, are the principal features of this ancient


testator finally closed this interesting old

will, in the

following form

"And I appoint my eldest son, William, Earl of Warwick, Sir Eoger Mortimer, Sir Bartholomew de Sudley, and the Abbots of Evesham and of Great


p. 337.


Pollock and Maitland's History Bnglisli Law,

Harris, Ancient Wills,





So here we have,
vise, just as today.


modern form,

the recognition of

the custom to appoint executors, by testamentary de-

Primogeniture, under the feudal law of the middle
ages, in England, created the necessity for wills of real
estate, for although.all children of the

Germanic races took equally and this was true, at Eome, under the feudal law all the children were practically disinherited
in favor of the eldest son
estate to the eldest

some method of devising the son was essential, on the part of

the testator of real estate, so the Clergy adopted the


will as the instrument for accomplishing the
it is

purpose and thus

sometimes called "an accidental

fruit of feudalism.


liberty taken

by the Church with the estates of

deceased persons was a matter of such scandal and
oppression, during the reigns of


III and




Parliament on several occasions imposed

rules for the

istration of the estates of intestates.

government of the bishops in the adminExecutors were

required, during the reign of


III, to

make a

true inventory of the property of the deceased, and




acquainted with the
this is

property of the



no doubt, the

foundation for this provision of our modern law, requiring inventories, in such cases.

During the reign of Edward IV the testamentum and ultima voluntas came to be regarded in much the same legal aspect, although the former was the more solemn
"Maine, Ancient Law,





Essays in Anglo-Amer-

ican Legal History, pp. 780, 781. " IV. Reeve's History Bnglisli Law, p. 115.






and the execution of the testament was always in accordance with the forms prescribed in the older law books and if these preliminaries were omitted it was but a mere ultima voluntas.^^
In the reign of
classes, so

Edward VI

the reformers of that

period objected to the promiscuous use of wills by
of wills

an act was passed preventing the execution by wives, servi, by minors under fourteen, by

heretics, criminals,


to death, exile, or chains


who did not dismiss

their concubines before they

two wives or husbands, The libelers, prostitutes or procuresses and usurers. indulgence was granted to those keeping concubines,


in extremis, people with

however, and to those with two wives or husbands

perhaps because of the leniency with which such crimes

were looked upon at this period of disposing of their goods in pias causas, or for the relief of the poor, afflicted, for young women, the support of students and
the reparation of highways.^*


the old law, the division of the decedent's

property, whether by will or otherwise,
to his wife, a third to his children

was one-third

and the other third, If no will was left, the wife and children took their one-third each and the rest was divided by the administrator. If no children survived, the widow took half and the owner could dispose of the other half, or, if the owner died intestate, the administrator disposed of the remaining half and the same was true, if there were no children, but a
the owner himself could dispose



" IV. Reeve's History English Law, 117. ™V. Reeve's History English Law, pp. 81, " V. Reeve's History English Law, p. 82.





The modern

statutes of descents


distributions, in

the United States, are no doubt founded upon the cus-

toms, which had taken the fixed form of law, at this
early period of English history.

In the written English

wills that

have come down to

from the middle



find the dispositions of

property governed, largely, by the customs and laws

was written and the forms and dispositions of property devised by these instruments is as varied as the imaginations and whims of the
of the period the will



will of

dated at

Guy de Beauchamp, Earl of Warwick, Warwick Castle, Monday, next after the feast

of St. James, the Apostle, 1315, provided for the in-

terment of his body in the Abbey of Bordsley, without
funeral pomp.


Alice, his wife, he left a portion of

his plate, a crystal cup

and half

his bedding, with all

the books in his chapel; to his daughters, he left the

other half of his bedding, rings and jewels; to his son,

Thomas, he

left his best coat of mail,

helmet and suit

of harness, and to his son, John, he left his second best

and harness, and the remainder of his armour, bows, and other warlike implements were to remain in Warwick castle, for his heir.*^
coat of mail, helmet



the wills of the fourteenth century

the specific provision for the place and

interment of the body of the deceased.
of this period of the world's history,

manner of the The testators prompted by their
they thought that

wrote their wills as


the angel of the Lord, on the resurrection day, would
"Harris, Ancient Wills,





scan their wills, to find the place of their interment.

They talked "of graves, of worms, and epitaphs," just Bard makes the weak King Eichard speak, who had naught to bequeath, save his deposed body
as the Great

"to the ground."*^


find that old

John of Gaunt, Duke of Lancaster,

in 1399, directs, in his will,**

"If I die out of London, I desire that the night my body arrives there it be carried direct to the Friars Carmelites, in Fleet Street, and the next day be taken straight to St. Paul's, and that it be not buried for forty days, during which I charge my executors that there be no embalming of my corpse."
Sir Walter Manney, on St. Andrew's day, in 1371,

London, provided for his interment, "at God's pleasure," in the midst of the Quire of the Carthusians, near Smithfield, in the suburbs of London, without any

great pomp.



He directed twenty masses be said for and that every poor person attending his be given a penny to say a prayer for his soul

and the remission of his sins. He left ten pounds to his sister, the nun, Mary; left a provision for each of his two bastard daughters and to his dear wife, the plate which he bought of Eobert Francis, also a girdle of gold, a garter of gold and all of his beds and girdles, except his folding bed, which he left to his daughter of Pembroke. He willed that a tomb of alabaster with his own image thereon, as a knight and his arms thereon should be constructed, like unto that of Sir John Beauchamp, at Paul 's London, and that prayers should be said for his soul and also for that of AHce de Henalt,
"King Richard
II., Act "Harris, Ancient Wills, II.,



p. 25.




the Countess Marshal and Sir

Guy Bryan, Knt., was appointed executor of his will.** Queen Katherine of Aragon, wife of Henry VIII, who died in 1536, after providing for the burial of
her body in the Convent of Observant Friars, supplicated the

King in her she had brought

last will,*^ to return the



him from Spain, out


she stipulated for the payment of the annual wages

due her physician, her druggist, her laundress, goldsmith and tailor; she left the collar of gold she had brought from Spain to her daughter and provided for masses for her soul and legacies to different priests and lady friends. Harris, in his recent book on "Ancient, Curious and


Wills,"*" reproduces, verbatim,



and strange testaments, evidencing the weaknesses, humors, whims and caprices, and sometimes, even the vengeance of the various testators, whose wills he has

William Pym, for instance, a gentleman of Somerset, England, who crept to his long sleep of death on January 10', 1608, after providing for different charitable
behests, thus speaks of his wife, in his will

to Agnes, which I did a long time take for wyfe till she denyd me to be -her husband, all though wee were marryd with my friends consent, her father, mother, and uncle at it; and now she sweareth she will neither love mee nor evyr bee perswaded to, by preechers, nor by any other, which hath happened within these few years. And Toby Andrewes, the be-

"I give



Harris, Ancient Wills, p. 29. "Harris, Ancient Wills, p. 39. " Publislied by Little, Brown &

Co., 1911.

"Harris, Ancient Wills,






mine own eyes when he did more than was fitting and this, by means of others, their abettors. I have lived a miserable life this six or seven years, and now I leve the revenge to God and ten pounds to buy her a gret horse, for I could not, this menny years, please her, with one gret enough."

ginner, wMcli I did see with

Dispositions of property for the use and benefit of

horses and other domestic animals are not uncommon,
in the list of quaint

and curious

wills to be

met with by

the student of ancient testaments.


cites the curious will of

a childless peasant,


died near Toulouse, in 1781, by the terms of which

left his

house and land and other property to his

riding horse, in these words


declare that I appoint my russet cob my universal and I desire that he may belong to my nephew,



the will being brought before the court for

was held that the intent of the testator would be given effect and the horse and the bequests he had bestowed upon it, would go to the nephew named
in the will.**

of a fixed

Dupuis, who died in 1677,**


a legacy


her executor, with a detailed


for her cats, which her sister and niece were to visit

three times a week to see that at least thirty sous a week were expended for their living and care. As an illustration of the generosity and magnanimity

of certain Jews, the will of the wealthy Israelite,



died at Amsterdam, in the eighteenth
p. 94.

" Harris, Ancient Wills,

"Ante idem,


10. to his synagogue two and a half tons of gold. 323 century. 18. by 29'.WILLS. cap. . near PuUhelly." in passing to and fro along the watersides. devised his tenement. for twelve poor men. of Coleshill. at three per cent. 1591. attending his funeral. to every Christian church in Amsterdam and at the Hague. he then left certain legacies to his wife and nephew and other members of unmarried person of either . p. ten tons of gold. p. on condition that the . his is not without interest. called the trust. "^ Ante idem. by will dated Jan- uary 17'.^^ Charles Jones. established a charitable trust for the maintenance of a house to be used as a hospital. John Warden.^* George Butler. of London. Ancient Wills. "Harris. which many of the testators his will dated of today would do well to emulate. fifty crowns. the sum of 10. forty shiploads of peat. of Lincoln's Inn. iv. 105.000 crowns to the poor of Amsterdam.000 florins each. and to every sex. 100 crowns and to every sacristan. QUAINT AND CURIOUS. gave his house Schutt's Memorabilia Judaica. °° lib. to each Christian orphanage in these two towns. Warwickshire. he lent to the government. 1640. He left to the city of adoption. interest should be paid to the Jews domiciled his family at Jeru- salem.®" Space cient will not permit the long list of charitable and philanthropic devises that could be collated from an- and mediaeval times. to light the travelers "White Bear. five tons of gold. by his testament dated September 2'. 100 florins to every Christian priest at Amsterdam and the Hague. 105. August 1656.

. may be mentioned that of the nobleman of the house Du Chatelet.®^ that his corpse might be embalmed and placed in his favorite chair at the banquet table of his friends. who died in 1280. p. but as the last writing of the Poet. to be in- vested and the interest spent for the benefit of the "most indigent.324 WILLS. with his Among broad-brimmed sombrero and his favorite walking-stick. Southwood Smith. miserable paupers. by a French artist and in the freakish wills collected his usual suit of clothes. 139. "Ante idem. in trust for the lodgment of "any poor travelers" who should desire lodgment. was carefully carried out by his friend. of Hallaton. "^ 107. By some scientific process the body of the philosopher and law writer was preserved. left eight hundred pounds aged. Dr. until it was removed by Dr.^* And Valentine Goodman.^^ and directed that one of the pillars of the church at Neufchateau should be hollowed out and his body stood upright therein. it is always of interest to poster- ity^^ ^Ante idem. decrepit. The strange request of the great English jurist. The will of the great Bard of Avon. England. by his will in 1684. Smith to University College. p. 123. not to exceed one night."" by Harris. QUAINT AND CURIOUS. poorest. on all occasions of state. 111. has been discussed so frequently that its terms are known to many. the lifeless body of this gifted man graced the meetings of his friends. Jeremy Bentham. in his old armedchair. p. Ante idem. like everything con- nected with his life. "Ante idem. so that the vulgar might not walk upon his corpse.

309. Wadsworth. is finally established by the fact that he made them his executors and trustees." Harris. 5.®^ The wills of the statesmen and patriots of the past "'For collection of the the interesting hook many beautiful prayers in the plays.'*'' evidences first The the Poet's firm belief in Jesus Christ and the "life everlasting. pp." while all his landed acquisitions.®* His legacies is to his sister and his nieces and nephews characteristic of his deep affection for his own is established by his bequests "poor to the of Stratford". 305." by The Welch Publishing Co. his good-fellowship and love for his friends by the many legacies for rings for his different friends his indifference toward his wife. his benovolence . until 1709. Ancient Wills. recognized the futility of any attempted disposal of his literary productions. in England. daughters. see by Mary A. with the furniture. nieces and nephews and his trust and confidence in his daughter. in law. 325 paragraph of his will. QUAINT AND CURIOUS. Chicago. »» ™ White's "Law in Shakespeare. along with the many other prayers and Bible references which he places in the mouths of his characters in the plays. "Shakespeare and Prayer. . Susanna Hall. this will evidences the is most careful legal preparation and the conclusion not unreasonable that the same discrimination which characterizes this disposition of his real estate and other property. by the fact that he only left her his "second best bed. p.. which lacked the attribute of property. John Hall. family. with his gold and silver plate and other property were distributed among his sisters.WILLS. and her husband." In the entailment of his real estate to the bodily heirs male of his daughters.

relin. and by a codicil. the Dowager Duchess of Deux Fonts. like General Washington. After leaviag his land in Nova Scotia. ferred to his son 's part in attempting to deprive his property. in our own country with those of our brothers of yesterday across the sea.326 WILLS. registered his opposition to ""Harris. human . p. Francis Hopkinson. 369. to go to his ingenious friend. which go with it. therefore. as him of ing him more of his estate. and would become it. during the war. in his last testahe has merited ent to it me from that excellent ' ' ment. in entirety with remainder to their heirs. so as not to thereby "introduce the ex- and useless pastime of wearing jewels in country. connected with some verses. If it were a sceptre. an excuse for not leavdwelling house silver plate and three new houses. Benjamin Franklin. Ancient WiUs. Madame de Forbach. on the condition that he manumit and set free his negro man. He left his office. set with four hundred and eight diamonds. Sarah Bache. are equally interesting century. philosopher and patriot. General Washington. William Frankformer Governor of the Jerseys. and her husband. with the use the diamonds to make ornaments for herself. he admonition not pensive." He desired his philosophical instru- ments in Philadelphia. "as tenants in common and not as joint tenants. he left his "fine crab-tree walking-stick" to his friend and "the friend of mankind. This great patriot and friend of mankind. printing and household goods."®" The picture of the king of France. to his daughter. with his books and the debts owing to him by his son. It was a preswoman. the great statesman. QUAINT AND CURIOUS. vain this to left to his daughter. He left a bond to his son-in-law.

" Harris. Ancient Wills." slavery. p. Ancient Wills. he left his estate equally to his only daughter and his five sons and accompanying the will is a splen- did eulogy to his deceased wife. Martha Washington. Longfellow's hero. with the "liquors and p. upon his marriage.WILLS. "Harris. five sheep and two heifers. as the whom he characterized "most affectionate of mothers. James Cudworth. He desired his just debts to "bee paied". my daughter." . 439. p. through the efforts of the great "Emancipator. and Mary Standish. 427. att p'sent. . QUAINT AND CURIOUS. that his body should be "buried in Decent manor * * * as near as conveniently may bee to my two daughters. 1656. was made March 7'. Lora Standish. were appointed "supervisors" of his will. declared by him to be "entirely in my own hand- writing". for he knew that they would "be pleased to Doe the office of Christian love to bee healpfull to my poor wife and Children by their Christian Counsell and advice. my daughter-in-law. Mr. Timothy Hatherly and Capt." His dear and loving wife. 327 an institution that was to be finally abolished a half century later in the United States. 407." life. The is will of the great Chief Justice John Marshall. was left a third of his estate forty pounds were left to each of four sons and to his son Josias.®^ General George left the bulk of his estate to his wife. for "Harris."®^ The "Father Washington. of our Country. he left "one young horse. Ancient Wills. Barbara Standish." if his estate "will bear it His friends. with his forty pound legacy. "^^ The will of Captain Miles Standish.

Upon her death he willed that all slaves owned by him. to the Earl of Beuban to his brother. in his own right. his military and state papers were left to his nephew. He desired that any dispute over his will that the disputants each an arbitrator. as to the different constructions that it. he left the gold headed cane left him by Dr." Like Washington. QUAINT AND CUEIOUS. Franklin and among the "mementos of esteem and regard. given him for his services in the Revolutionary "War. groceries" on hand at Ms death. to dispose of as she saw fit. he desired to be parties as if it "as binding upon the had been given in the Supreme Court of the United States. James Logan. some of his lands were distributed among the sons of his deceased brothers. to endow a University within the limits of the District of Columbia. Bushrod Washington. could be placed upon The Government of the Province of "Pennsylvania and territories thereto belonging. should have their freedom and that the old and infirm and sick ones should be protected and maintained by his heirs so long as they lived and the younger ones educated and maintained the same as other poor children. " to his many friends. and many other of the patriots of his the past century. he recommitted the "box of oak that sheltered the great Sir William Wallace. He left the fifty shares in the Potomac Company. Charles.. the 'two thus selected to agree upon a third and the finding of any two as to his intentions. 328 WILLS. are a pair ' ' of pistols to General in case of select De La Fayette." he devised in trust . William in 1718. concern to his friend. so as to cause no Penn prepared little own will.

Harris. William. but as his friend. among the children of his present "in such proporcon and for such estates as all my said wife shall think fit. Stoughton's "William Penn" . James Logan. He further devised to his wife. from the contents of this will. 329 to the Earls of Oxford." in trust. Samuel Preston and James Logan. foresaw." trix and His wife was made execuhis personal estate was left to her. Hannah Penn. "liveing in or near Pensilvania and their heires" all his lands. second. in such manner as to cause . QUAINT AND CURIOUS. 291. Penn was a man of far more than the ordinary ability and wisdom in the customary affairs of life. Mortimer and Powelett.WILLS. a like quantity to his daughter. lyeing and being in Pensilvania and the territores thereunto belonging. Thomas Callowhill. "and upon trust. Isaac Norris. with so it is little instructions regarding his intentions. which left such a large and varied estate to so many people to convey. first for the payment of his debts. Henry Gouldney. to convey living in ' ' 10. " Dixon's "Life of Penn" Ancient Wills. John Field. who drew their and other of the earlier patriots of the United own wills. Margaret Lowther. all England" and to his friends. to his sister. Eiehard Hill. their heirs. The States will of Penn. sulted not strange that litiga- tion covering a period of nine years should have re- from such a p. Samuel Carpenter.*'* . with other profitts scituate. to his friends "Gilbert Heathcote Physitian. Aubrey.000 acres each to the three children of his son. Samuel Waldenfield. to dispose thereof to the Queen" or to any other person to the best advantage to carry out the object of the devise. to her father. testament. tenements and hereditaments. and the rest to be divided wife.

: . Ancient Wills. in testaments. QUAINT AND CUEIOUS. From the broad beaten track. And This that none may and prevent intent. sign and seal This. Which God's goodness has given me here. when defied. Islington. when the traveler strays. William Jackett. You had better pay toll when you take to the road. Than encounter the risk that your will shouldn't stand. my will Or occasion the least of With a solemn appeal I law-racket. the true act and deed of Will Jackett. of this quaint poem in full." Inscribed to "The jolly testator who makes his own "He premises his wish and his purpose to save All dispute among friends when he's laid in his grave. died in 1789 and his will in the following form was admitted to probate "I give and bequeath. suggests the old poem. p. will find The searcher for the curious wills in poetry as well as in prose. . The -whole of my store. He writes and erases. You had better employ a conveyancer's hand. he blunders and blots. On the man and the woman who make their own will. Then he straightway proceeds more disputes to create Than a long summer's day would give time to relate. p. of the parish of St. 330 WILLS." For reproduction Wills. 209. will. intending to frame the thing ill. That a lawyer. Ancient "Harris."" protracted litigation. He may land in a bog. will avenge itself still. To my two loving sisters most dear. tuned to the toast of a century ago. confirm. see. collated in Harris' Ancient Wills. or be lost in a maze And the law. 67." He produces such puzzles and Gordian knots. Mary. "The lawyer's best friend—the man who makes his own will. Were it twice as much more. Wlien I'm laid underneath. Than attempt by a by-way to reach your abode. Harris. Couldn't match the testator who makes his own will.

in this quatrain disposed of his earthly effects "In the name of God. is the rhymed testament of the sacriligions Irishman. Ancient Wills. the Poet of Pocklington. who died in 1484. Amen: featherbed to my wife Jen. is not without . suggests the "Will '^' in literature. my wife. QUAINT AND CURIOUS. With every chattel. and in turning over the pages of the work above referred to. "Ante idem. penned his will in rhyme. Also the acorns willows bear And every day a capon fair Or goose. "" His gloves and silken hood are bequeathed to a friend in the following verse "Item. Until she marries. Though thou art not As witness my hand. I declare. Of chalk-white wine. as the old books record. likewise a tenfold vat Of Lawsuits. Also my carpenter's saw and hammer. twelfth of July. interest. To thee. God damn her. Come heat or come cold. who. In the year seventy."" My This. the "Lesser Testament. Mary Jarum." of the plaintive poet. Shall have in fair free gift for good. ." p. 68. The Just here as I stand. As free as 1 breathe.: : WILLS. Sans hindrance or strife. as follows: "Do give and bequeath. however. 67. Francois Villon."™ Apropos this will. "Harris. my gloves and silken hood My friend Jacques Cardon. My cash and my cattle. who dubbed himself. then. besides a pair lest he wax too fat. 331 William Hieklington. in 1770. To have and to hold. The Queen of my Harum.

the wills of Dumas and other English founded in But it is not the object of this chapter to deal since testaments are with wills in fiction.: 332 WILLS. tables. Ancient Wills. to wonder at. writers. among the bequests being "all good little words of praise and encouragement. the red roses by the figure to each other the lastingness music and all else by which they may and beauty of their love. and to those with snowy crowns he leaves the happiness of old age. George Eliot. associated with the idea of intimately connected with the ties that bind us here on earth.®" are those of Olivia. until they wall. wherein he makes an imaginary will that has become a classic in English literature. the sweet strains of fall asleep. He taph : desired his friends to record of Mm in his epi- "Acre or furrow had he none. to children. Harris. collated by Mr. certainties. in his recent work. he devises the imaginary world. the golden sands and waters of the brooks. WilFish of Chicago. in trust for their children. the flowers. a century ago "We consign our possessions to our next of kin. Ancient Wills. the poems of Burns and Shakespeare and other poets. in 1898. at night. Gallants. fie devises.'"" Among the wills in fiction and poetry. tressels. QUAINT AND CURIOUS. As Hazlitt said. 64. with the stars in the sky. to lovers. of him this Roundel say. the "Insane Man's Will. may have suggested to Mr. that of Dickens. Bread. with the love and gratitude of their children. the banks of brooks. all are gone. To those no longer children or lovers. pp. . the white clouds floating high over the giant trees and the Milky Way. subject to the rights of lovers. Don Quixote." to good fathers and mothers. We have always made our wills m pursuance of a natural property and inclination. 'Tls known his all he gave away. J-n Harris. as real as life and death themselves. p. 62. 49. as mechanically as we lean our heads on the pillow and go ='' •" Harris. he bequeaths the pleasures of sweet memories." published in Harper's Weekly. the blossoms of the woods. Twelfth Night. liston This bequest of Francois Villon.

333 out of the world in the same state of stupid amazement that we came into it it. ' "A this Sphinx hath True. myriad races came and went. "whither hath it gone again. a globe Collapst. but man. like the nightingale that sang among the trees ah." ' WILLS." Streams have been wept into the vast ocean of time since the first will and testament was made by dying have fallen. our own." but as truly said by Burton "Our deaths are twain. a human life. e'en as the fingers that in wove the figures your antique rug. the voice that expressed the dying intent of the testator. But ours. '• "The Kasidah. QUAINT AND CURIOUS. each age-scented document life marks the lives close of a human emphasizes the pathos of our lives. like the leaves and the from fact that other trees. is but "a drop in ocean's boundi'^" less tide. And owe as certain as to ourselves we and are to die. with a universal agony still strives and strains "to gain the goal where agonies shall cease to be. the Deaths we see Drop like the leaves In windy Fall. as one man. even as the men and women of antiquity did.'' . The hands that wrote the wills referred to in the foregoing pages have been stilled with the silence of the centuries. so certainly do to those we who are the objects of our bounty. Like scattered threads from the warp and woof of the lives from which ' — ' these skeins are taken. last end of all. are ruined worlds. who knows can be heard again no more. to provide for the proper disposition of our acquisitions. before they pressed the pillow for the last time. seen them come and go. since humanity.

Like thee how many came and went. Shall brooding breed a thought of joy? Ah Hush the sigh. — The testament is not death's knell. contain Thy None nature's vain complaint heeds. to wield the blade. die 'twixt one who One who Hardly we learn Hardly we learn frets feels the pulse and and clouds the head. Silence thine Immemorial qoiest. Wend now 'Tis thy way. doubt owns a what vaileth man mourn. with brow serene. We We live our lives with rogues and alive. none cares for thee or thine. to Man unpattern'd dark design. QUAINT AND CURIOUS." 334 WILLS. to ply the pen. shall Tears bring forth what smiles ne'er brought. fools. fear Not thy humble tale to tell: wisdom's part to make thy will. forget the thought. . before stiff The wrist grows and old. And still the weaver plies his loom. ere Thought And Fancy faint with cold. whose is Warp and woof Weaving th' wretched plan. so dark it We But ah. alive Dead and and dead.

117. 119. Balance. (335) . in case of sanctuary. 90. 149. (see pun- Ancient punishments ishment). Battle. 322. 90. 49. 109. of. London exempted from. 197. 82. Approver. Battle. Anglo-Saxon wills. her 18. in ancient Greece. Battle. recall of. by Pilate.. wager of law. 133. 306. 112. Battle. 70. governing Adonijah. 26. 252. Alfred. 89. under. Animals. Astrology in mediaeval 49. lost dower. Assyrian marriages. Athenian judges. sanctuary claimed by. 127. in ancient. Battle. Alfred. Battle by use of "Approvers". a substitute for battle. sanctuary. recall in. in Eng- Athelstan. under. case 183. effect of recall 104. of. sale- Banns. Anglo-Saxon • law against witchcraft. Anglo-Saxons. Anthony. 273. Banns. judicial recall under. 310. ordeal by. release of. trial by. 115. will of. marriage of. jury trials under. 102. Assize. III. 103. 83.INDEX. 79. Battle. 312. standing 173. Ellenborough. 250. Alcibiades. 90. Banishment. Alfred. 71. under Henry II. 22. Agrippina. regulated by Burgundians. 112. when established. intended to prevent perjury. on judicial recall. 111. regulated by Otho. laws deals. Arrowsmith. land. Anglo-Saxon courts. Battle. Anglo-Saxons. 21. 197. by charter. 13. 13. wills to. custom of. adjudged legal method of trial by Ld. to Attalner. wager of law. Babylon. Battle. 22. Babylon. 86. 117. Babylonian judges (note). References are to Pages times. 140. D. trial by battle with Thornton. sanctuary under. 251. Aristeides. 88. in 983 A. Ashford.. in. Adultress. legal advantages of. 143. and Plollo. traced to ancient periods. D. administration of justice under. 81. 245. Arthur. recall Aristotle. Amber witch. Appellee. 246. 83. marriages between. mute to avoid. Claudius. recognized marriages. trials for felony charges. 109. Athens. 82. or- A Abjuration. 501 A. Authorities upon witchcraft. Babylon. trial by battle between. Alexander decree concerning consent marriages. 18. origin of trial by. meaning in of. recall Aunts and nephews. Athelstan. Alfred. in trial by battle. 74. of. 133. Barabas. 20. 109. 151. king. trials In ancient. 119. Aristotle. 83. Babylon marriages.

225. in. Benefit of clergy. Benefit of clergy. 116. 127. none. between King Arthur and Flollo.336 INDEX. trial by. 229. did not extend to treason. Beheading. before Henry VII. in Prance. abolished in U. 34. Battle. superceded by assize. 118. under Henry under Henry under Henry Queen Elizabeth. 238. Battle. VII. effect of chivalry upon. 138. under writ of right. 129. punishment by. under Priscot. nuns entitled to. 134. 118. marriage of Lord Thomas. 130. in Anglo-Saxon days. 236. Battle between men and women. 229. in reign of Henry VI. 139. Battle. 116. 113. Battle. 135. Battle for treason. Battle. 243. in finance. his views by Thackon punish- Bentham. trial before Henry VI. and Benefit of clergy. England. C. in 1825. 69. Battle. Battle. under felony charge. practice in reading. Beccaria. claimed in United States. Battle. Benefit of clergy. in Bracton'a time. Benefit of clergy. 239. abolished. introduced into England by Normans. 125. Benefit of clergy. Benefit S. will of. under charge of treason. reference of Scott. Benefit of clergy. 231. 234. 226. Benefit of clergy. 116." der Henry Battle. Benefit and 233. 228. 228. of clergy. Battle between Essex and Montford. under military form. 131. 228. 234. to. Battle. 241. used by Chaucer. Battle. Jeremy. 274. Benfit of clergy. Battle. 230. J. trial before Edward III. Betrothal-rings. abolished by 59' George III. "clergyable" "unclergyable crimes. 114. 236. 132. under III. 137. 136. 126. Berkeley. 239. condition contributing to. of clergy. case of Ben Jonson. in Germany. Battle. Benefit of clergy. Battle. in 1790. Battle. 276. Bekker's work on witchcraft.. Battle. Battle. 231. Battle. under IV. Betrothals. VIII. 324. 235. in trials on debt. under 132. 230. burning in hand. un- Benefit of clergy. Louis. Benefit of clergy. Benefit of clergy. in full. . under Henry II. 231. 137. in case William of Eu. in desertion. definition 224. ment. 129. 233. References are to Pages Battle. Benefit of clergy. Battle. discouraged by Edward III. in. Benefit of clergy. Benefit of clergy. VI. eray. 229. Hereford Battle between Norfolk. 120. 118. 28. 119. trial before Henry III. 128. II. Battle. Benefit of clergy. Battle. 36. in 134. Benefit of clergy. Battle. 119. Biblical foun- dation for. referred to. Benefit of clergy. Edward Edward Battle under writ of right. 126. of. 122. abolished by St. 127. Shakespeare's references to. in 1260.

on Slade's case of law wager. 186. manum. 201. standing mute. Chatelet. Burning. Bier. Caesar. Bracton. Bracton. 295. 183. Burnworth. 12. References are Biblical theory of marriage. trials of. marriages of infants in. Coemptio in of. during time. Coke. 200. Clarendon. 147. 159. on recall of judges. 100. at. under. loaning of wife by. Claudius. neck-verse used in. 22. 157. punishment by. law of. Boaz. alive. 211. 29. Brazil. 180. 36. definition Ceylon. Canute. in 1435. punishment by. of Paris. 154. Code of Hammurabi. of. in early Churchmen. Chancery. 179. William's case. punishment. Blinding. recall of Sisamnes (note). 223. by. Charles le-Gros. 18. Aaron. Alice. 34. Cleisthenes. Coke. 16. by. 243. Clitherow. law allowing marriage to niece. 276. by. punishments. 49. 229. case of Walter. 289. 49. 78. Bilboes. by. Burgundian code. on battle. 145.— INDEX. trial by). trial of. edict. 143. punishment. Brank. 168. of. 88. Burying 282. by wager Branding. ordeal of. Cato. Caesar's reference to marriage settlements among Gauls. 69. Church and witchcraft. or- Child marriages. 285. Church's influence on trials by ordeal. 82. 323. 27. Boiling in oil. Cathay. 13. 29. his espousal of Ruth. trial by bat- Burning in hand. assize of. accusation and trial of his wife. 106. in 1605. Cambyses. in time of. Clovis' marriage to Clotilde. case of. Cnut. polyandry in. Chinese marriage customs. 209. Cnut. and law wager. 229. 83. to 337 Pages Charlemagne. clergy. does not refer to benefit of clergy. jurisdiction Charitable wills. 112. influence of. on judicial recall. right of. in benefit of of law. Chivalry. Margaret. Cimon. 32. 13. capture . 292. witchcraft. 184. Cnut's law against certain salemarriages. Clergy. 148. 303. assize of. Calverly. Combat. trial of. Cardunville. marriage by. Bracton. 16. 213. 90. on tle. case of. times. 152. trial by (see Battle.marriages among (note). marriages in (note). against Colynbourgh. 305. 312. 109. Clarendon. Capture. 13. Burn's idea of the devil. Burr. Cnut's law against witchcraft. 202. 113. ordeals under. 169. benefit of (see benefit of clergy). wills. description law of wager. on wager of law. Augustus used the recall. 111. Clergy. by. Catholic marriage forms. 50. by law wager. punishment by. 14. of. 78. 210. recall of. Ciraissians. 297. 231. punishment. Charlemagne. in 1726. on trials by ordeal. . proceedings in "false judgment" under. 18. punishment. Bracton. Child of concubine. property deals. 20. 32.

wager of law. Custom. 90. under. 141. 160. Dower. of throwing shoes. 31. old in England. of. Curia regis. Criminal cases. in 1692. Giles. 303. Corey. punishment by. Compurgators. known as. in. 34. authorizing benof clergy. case of pressing to death. B Ears. 54. under Roman Concubinatus. Dower. origin of. Detinue. Concubine. punishment. Definition of benefit of clergy.338 INDEX. Corey. 159. Confarreatio. Dowry. 158. of ordeals. 14. during 14th century. Drowning. 12. sanctuary. as witnesses. Dower. under reign of Edward I. 233. 16. by fire ordeal. D David and Goliath. 283. Dowry. 280. of Roman against Constantine. of. efit Edward. Confarreatio. 152. in to (note). abolished benefit of clergy. punishment by. prohibition of polyg- amy 31. throwing bouquets. under. in early England. 65. 34. Cumanus. 196. Crucifixion. Descent from concubine. 236. County Court. by end of Roman Republic (note). in Athens. law. 224. 204. . 198. of marriage. of Anglo-Saxons. the Confessor. recall 83. 109. 17. unclergyable.scourge". Custom. Dinah's proposed Shechem. 207. 90. ordeal. References are to Pages Common pleas courts. ntiptias. Martha's trial for witchcraft. obsolete. Concubinage. under Hammurabi's code. law of. trial for craft. battle in trials for. 32. Donatio propter law. punishment by. der. song ary. 189. under. Ducking. 18. 34. 187. 144. Congress. by. "Earthenware . untrial by. definition of. Definition of Confarreatio. 144. 119. Debt. 31. 143. of throwing rice. Giles. 277. 152. 165. Corsned. 18. Divorcement. David's Psalms. ordeals. under Hammurabi. 296. John. 16. 207. by. 248. Durant. 48. "Dusty-foot courts". 143. case 187. property right of progeny of. Corey. 90. sanctu- Edward. in ancient England. 16. Edda. 33. witch- Dower. wager of law. Custom. cutting off. in 1734. Definition of wager of law. Crimes. the Elder. Courts. wager of law. 148. the Confessor. Custom. 32. character Debt. accusation against his mother. in witch persecutions. Customs. Constantine. Edward. 90. 18. in 1790. 254. in 1299. punishment by. 143. Edward I. 34. Definition of trial by ordeal. his marriage to guerite. under Anglo-Saxons. Compurgators. wager or law. by. definition of. Shakespeare's reference to law of (note). 26. ordeal by. 32. Edward. in of. Elder. Mar- (note). the Confessor. witchcraft. cruelty of. 44. 228. Compurgation 142. under. I. Cross. 90. in Edward 256. of throwing stockings. marriage Diocletian. 66. 31. 18. Drawing and quartering. at church door. sanctuary.

under. Glanville. administration in ancient. Ellsworth. False-judgment. Elizabeth. statute of. Glanville. marriages by Fejee-Islanders. in 1628 (note). in. 32. in ancient. under. wills. 92. John of. timidity of judges. wills. England. abolished in 1772. of Anglo-Saxons. Benjamin. on trial by battle. Elizabeth. law of marriage traced to. discouraged by. by battle. in U. Gemot court. Edward III. 326. 70. 28. Eucharist. 120. during time of. 127. will of. of will Franklin. Gaunt. France. ordeal by. on benefit of clergy. 320. punishment benefit o£ by- drowning. Gauls. of. I. 313. Elizabeth. 319. III. under. in China. III. Felony. trial by battle. under. marriage. 26. 19. 96. 118. 21. 74. trial. in time of. in 155. Queen. IV. Fiction. Emma. S. I. 12. witchcraft in. 57. Glazier's company 214. 261. Elizabeth. forte et dure. 278. III. F "Pair Maid of Perth". of justice. Felton. on witchcraft persecution. wager of law. ordeal of (note). marriages of in- fants. 309. clergy. under. attainder In. George George law 24. 260. References are to 339 Pages Edward under. under writ of right. in England. III. 229. abolished law wager. judges under. II. unstatute on dower. (note). 13. 110. Egypt. trial by battle with Montford. sanctuary claimed by. peine forte et dure. 144. under. Edward III. and Catherine Swinford. 318. 208. 143. during case. in 1817. 90. wills. 70. wills. FloUo and King Arthur. case of John. punishment. 43. VI.. Edward fore. 231. 131. witchcraft in. Gaunt. under. 132. established Emperor. 129. law of marriage stated by. statute of. Felony. by. 317. Edward Edward Edward Edward standing mute. Glanville. ordeals. by ordeal. Genesis. George George England. against witchcraft. Gamier. Glanville. Galzu. Germans. wager trial of law. case of. Glanville. Fouhi. Ellenborough. 95. bier. 90. III. Essex. 185. 160. battle. benefit clergy. regarding peine 189. 128. abolished trial by battle. Fourteenth century wills.INDEX. III. marriage. 122. Edward Edward Edward IV. 175. 324. trial of. G Gallows-marriages. Flaying. 89. battle between. 41. 200. II. 133. 55. I. by battle of be- Freakish wills. the judge. under. in ecclesiastic courts. in Anglo-Saxon days. 173. 93. 159. trial by battle for. Oliver. 116. 109. . framed judiciary bill. 300. on trial by battle. 332. der. 14. 230. trial by battle among. Elizabeth. wills. John. at early day. Fisher's. Edward Edward 202. 166. time of. 180. marriage among. 134. Queen. under. III.

235. Hale. in 1527 (note). Rome. 132. 80. Goliath. law wager. der. before. benefit of clergy. punishment by. Matthew. 293. 111. under. peine forte et dure. made infallibility VIII. lord chief justice's trial of witches. regulating by battle. II. fore. 77. views 162. law wager. Henry VI. his cruelty against witches. trial by battle.. sanctuary. 111. under. 226. trial with David. Doctor's case. of. under (note). Henry VIII. on ordeals. punishment by. 267. 130. 213. benefit of clergy. II. Horsey. H Hair. benefit of clergy. under. . Henry punishment trial VII. the test of the judge. cases by. VI. Greece. 86. code marriage dowry. by battle. Hopkins. Sir Mathe-s^'s. Hebrews. Hammurabi's law against witch- Hexham. trial der. 251. Hyperbolus. Gundlbald. fants. Holt. Huntingdon witch trials. sanctuary. 109. of in Henry Hammurabi's prerogatives. 236. Duke. Godwin. Hammurabi. Hammurabi. Independence of judges. deal. Hereford. 180. VII. 106. be- fore. in Holt. ch. trial by battle beof. unjustices itinerant. Henry VI. II. by. of Anglo-Saxons. III. 299. recall. 212. der. established by William III. Hutchison's work on witchcraft. effect of recall in. Henry Henry Henry 262. 103. 60. trial hy battle among. Henry 259. by or160. among. Hincmar. recall in. Henry HI. in 14th century. abolished Henry peine forte et dure. practiced polygamy. sanctuary.340 INDEX. Henry 257. sanctuary in. 161. under Constitution of U. Hungarians. witches. in- Henry Henry Henry Henry 157. marriages 17. Hawes. decision of causes. recall ordeals. Henry VI. VII. Independence of judges. 129. un- by. in Athens. of. 45. 104. VII. Nathaniel. battle with Norfolk. regarding judicial 31. peine forte et dure. trial law of. Goths. S. "Great Law". Henry VIII. References are to Pages trial of. marriages of 61. 61. under. sanctuary curtailed by. case 1721. Gregory of Tours. 207. under. 180. of. sanctuary. 214. sanctuary. 253. 69. 206. 94. der. craft. Hundred court. wager by.ief justice. 247. unVII. under reign 178. in reign Ina. 90. 81. 186. 234. 15. Guillotine. 279. under. 79. 59. Hanging. case of law wager. 91. 97. 204. of. on in law wager. unwill of. 315. peine forte et dure. 216. wager of law. under. 180. under. IV. Henry 131. Greece. at. III. plucking off. 29. Hand. Henry IV. 231. of. Greece. 209. on Hammurabi's code.

action in 106. his belief in witchcraft. on common-law marriages. 23. 288. in ancient England. wisdom demonstrated. London. in England. law of. 238. upon trial by ancient. 119. of marriage. Hammurabi's time. servants of king. persecution of. 15. Israelites. mantle-children. 90. 57. 76. Infallibility. Luther. in. References are to 341 Pages itinerant. law of dower. 91. 36. by colonies. Law. law against concubinage. 30. law of. 19. claimed by Ben. 95. 91. exempting Judges. wager of law. 106. Infant marriages. 44. under King Alfred. 44. on benefit of clergy. the test of judicial K Katherine. 286. 18. Chancellor. Emperor. abolished ordeal of the cross. 143. Judicial tenure in American Longfellow. Louis le Debonnaire. established of polygamy. Judicial recall. in England. King. repealed right to sanctuary. of Aragon. charter of. 75. laws and customs of. under Alfred's courts. presents case of Giles Cory. of Legitimacy. Itinerant justices. the fountain of. 18. 239. Judges. 114. Jealousies. 118. of. law). 230. 321. liability in England. effect battle. trials 151. 113. Jonson. Judges. 12. 98. of. trials tle. taking a wife. Kentucky. Iron. Jacob's will. clergy claimed. Joan of Arc. England. definition mar- 149. by. 241. 90. 52. 220. Innocent III. 196. wager (See wager of 80. 197. Knighthood. 88. Judgment in peine forte et dure. James of Scotland. sale of. marriage ceremony. 28. Marriage. by. clergy. 18. 90. Littleton. 90. . polyandry in. laws of. (note). ordeal by Israelites. James I. Isaac and Rebekah. of. 173. by King King's bench. Leo. 148. M Maiden-rent. Jury Jury 172. 189. governing ordeals. 90. Littleton. 12. in Brazil. in England. Law. Roman Repub- Justice. of Justinian's riage. Majestas. Lamech. 32. 142. used instead of batunder Edward III. 74. 89. 29. punishment Kent. Justices. 16. the fountain of justice. 33. in old by battle. 19. Law suits under Hammurabi. 141. King. Independence of judges. India. 108. 13. 187. in patriarchial days. marriage under.INDEX. hot. 309. 12. Mantle-children. 21. Inquisition. in. court (note). Judge. Infant marriages. 74. will of. definition of. 268. England. trials 91. under lic. Ine. Justice.

trial for treason must be before. "Minstrelsy of Scottish Border". under Twelve Tables. 19. form of. Minority alone protected by the courts. 25. Marriage. 26. 20. 241. 41. 16. Molay. in England. 34. Marriage. Glanville's time. not a religious ordinance. Greece and Rome (note). Marriage Gaunt ford. Marshall. proba- Marriage. 16. under Mosaic law. exalted by Marriage. 13. proposal of. Marshall. a civil contract. 101. appertained to spiritual forum. Marriage. 69. 294. 28. 103. . between aunts and nephews. retroactive. 29. Marriage. Marriage. Marriage. 15. 17. three forms of. Queen. Marriage. Marriage banns. Marriage. 26. Rome. mantlechildren. Chief Justice. on inde- pendence of courts. legitimates. Marriage. 23. in Scotland. definition of. by hand. 14. Marriage between Duke Richard and Gunnora. under. 24. Marriage. Mary. 21. Marriage. by sale. Chief Justice. between uncles and nieces. in a "shift". Marriage. Marshal. Marriage dowry. origin of. 27. 86. 42. Monogamy. ordeal of bier. 23. 18. 24. 20. Massola. Marriage. 327. in 14th century. clergy claimed hy. 12. Marriage. Marriage. Marriage. Roman in law. Marriage. in. 13. Marriage. in 7th century. under charge of witchcraft. in facie ecclessiae. 17. 17. 15. Marriage. Roman Marriage. in 1143. of. Mary. 13 Morganatic (note). Milton's idea of the devil. Marriage of Richard de Anesty. of 16. 31. 21. sanctuary. Biblical theory concerning. 52. 239. 100. by Roman Meinhold's "Amber Witch". in 1753. Marriage. Caesar's reference to. 14. Marriage. Marriage. 32. by capture. a partnership. Mischief of recall in Athens. 24. at common law. Marriage. among Gauls. punishment 33. law against witches. clergy claimed in. 21. ble recall of. Marriage. Monogamy. under English law of 1836. zation. by rape. in 21. within Levitical degree prohibited. 21. 19. Marriage. Marriage laws. 293. Monogamy. on marriage (note). 13. by law. 259. required to be celebrated by clergy. 71. 15. 118. wager by. Menu. Millis case. between John of and Catherine Swin- Marriage. forms law. origin of. 19. religious ceremony required in 1563. Marriage-ring. "Middle Law". 14. 204. institutes of. 56. in Pericles' time.342 INDEX. Marshall. 18. Marriage. in. persecution of. in 12th century. per veria de praesenti. 37. will of Chief Justice. Marriage. in United States. best suited to civiliin Marriage. putative. among Hungarians. Queen. Romans (note). Marriage. ancient 16. ancient Minnesota. Marriage. References are to Pages Marriage. 18. definition of. in Persia. Marriage. 166. between Claudius and Agrippina. 18. by infants. at gallows. Marriage. 21. 23. between Shechem and Dinah. Massachusetts.

Ordeal. trials.. Mosaic code. 75. D. 142. Mosaic law. In cases of. Ordeal. 46. 166. 164. References are to 343 Pages Morganatic marriages. of bier. Ordeal. infiuence of Church on trials by. In wager of law. Ordeal. Norfolk. Ordeal. 26. Ordeal. 143. definition of. trial by. Nazarene. Ordeal. Ordeal. trial by battle by. Neck-verse. 229. In "Fair Maid of Perth" (note). William and Margaret's case. in ancient Greece.INDEX. 164. under Richard 163. delivery of. Ordeal. 141. as presented in Richard III. 149. 228. 14. 157. 23. by fire. 143. by poison. Ordeal. ordeal by. Ostracism. Ordeal. marrlag-es. 166. battle. requiring marriage to brother's widow. of bier. 195. "New England Tragedies". 155. Moses. in 1302. Chief Justice. N Narada. abolished by Henry III. antiquity of. 76. 187. 205. 143. 166. by ordeal Parson's. Northampton. Ordeal. Ordeal. In benefit of clergy. under Edward the Elder. Ordeal. marriage. 159. Paynel. Oil. 169. of. introduced England. Oath-helpers. Ordeal. 163. In (note). In time of Glanville. 196. 76. 143. 141. 129. 67. Mosaic conception of judicial functions. Ordeal. clergy claimed in. 153. 244. by balance. Roman law. under fessor. Ordeal of the bier. on marriages at common law. Ordeal. 143. under Henry II. trials. 145. Nellson. under Ine. 168. 143. Ordeal. against witchcraft. Ordeal. by the Eucharist. wager or law. under. sanctuary traced to. 240. 13. Into Normans. 147. Moses. 154. case of Giles Cory. In. Ordeal. law of marriage. Ordeal. I. Rebecca's trial for witchcraft. 155. Ordeal. 149. by hot oil. under Canute. record of Palgrave's trials. 17. In 983 A. to multitude. 172. 189. 141. 130. by the cross. 112. 101. Mosaic code. 163. Ordeal. 143. of the bier. 143. Ordeal. 152. by red hot Iron. under 156. Ordeal. to establish paternity of children. assize of. a. Nuns. under Athelstan. 207. by water. 152. established trial by battle. entitled to clergy. Ordeal. tiy the corsned. wager of law. 154. in rendering judgment. in mediaeval times. Partnership. 143. North Carolina. as presented In "Minstrelsy of Scottish Border". Necromancy 49. Nil debit. 143. under William the Conquerer. 152. institutes of. 122. battle with Hereford. under Charlemagne. Peine forte et dure. 81. 143. 197. Nurse. Ordeal. Ordeal. 75. 35. Otho. 16. warning. . Mosaic law. New Zealand. advice to judges. Moses. 170. Edward the ConWilliam Rufus. 114. reported by Palgrave. Ordeal. . 148. Ordeal.

will of William. 87. 187. Poison. 189. 310. 330. 179. 173. marriage under. 186. definition of. William's trial of witches. 27. case of Anthony Arrowsmith. 195. 192. under AngloSaxons. case of John Felton. Peine forte Plato. Peine forte et dure. References are to Pages Peine forte 172. recalled in of. 179. 189. dure. under Ed- Peine forte ward ry I. Peine forte et dure. 178. Peine forte et dure. Peine forte et dure. dure. Pericles. 15. in 1720. in 1615. Polygamy. among Hebrews. in 1657. 176. Peine forte et dure. in Persia. 143. 333. Peine forte et dure. case of Burnworth.344 INDEX. 193. 184. Persia. in Syracuse. 209. 183. 187. Phillips. definition of. 185. 185. from ISth to 18th century. Preators. case of Giles Cory. Peine forte et dure. statute ana Quick. 175. 105. in Rome. judgment applied case of. forte et dure during Bracton's time. cases of. C. Petalism. 178. 184. origin of. in 1221. 180. case of Phillips. 180. case in Peine forte et dure. Peine forte et dure. Peine forte under Henunder Ed- III. 180. in 1827. ordeal by. ward Peine III. 35. 185. Petalism. Peine forte et dure. Peine forte et dure. in 1726. abolished by act of Congress. 180. 112. 186. established to form of marriages in. in 1692. 186. 15. 178.. Peine forte dure. Peine forte et dure. Piepoudre courts. Newgate. in 1721. Polygamy. Peine forte et dure. Polyandry. 186. S. Polygamy. et dure. 'Peine forte et in. 191. 174. case of John Durant. Peine forte et dure. Peine forte et Peine forte et dure. under Henry IV. Polyandry. 183. 15. in 1628 (note). 34. 90. Political methods. 1219. trial of judges by. Polygamy. India. abolished in 1772. under Henry VII (note). case of Nathaniel Hawes. 15. Peine forte et dure. definition Polyandry. Pope. in Turkey. 190. 187. Peine forte et dure. capture-marriages (note). will of. battle prevent. in U. Peine forte et dure. proceeding in. Perjury. of. case of wager. Peine forte et dure. case of Cecelia Rygeway. Peine forte et dure. 193. 87. in 1825. 15. 62. Peine forte et dure. 452 B. case of Margaret Clitherow. Rome. Penn. in in of 1215 (note). Polygamy. et dure. 146. Polygamy. practiced Thibet and Ceylon. Pelagius I. Polygamy. 190. in 6th century. 13. et dure. case of Juli180. in United States. et Peine forte dure. 16. in 1734. 86. Penn. et dure. 328. from ISth to 17th century. case of Major Strangeways. Westminster on. 184. Poetic wills. 16. 15. 177. Peine forte et dure. 179. in 16. conclusions regarding. et dure. established by Lamech. prohibited by Diocletian. case of Sir Richard Weston. in Greece. . law in Poland. among Hebrews. case of Walter Calverly. 15. Peine forte et dure. 180. 174. of 1720. illustrations of. from Shakespeare. law of repealed. Peine forte et dure. et Peine forte 172.

244. 282. alone. Recall. definition of. in England. 272. Privilege of sanctuary (See sanc- Punishment. by stocks. Punishment. 102. C. in Babylon and Punishment. by ducking. in ancient Greece.by stoning to death. 13.INDEX. Punishment. 288. established by Cleisthenes. with hot iron. 78. by crucifixion. Recall. 289. 284. 296. 317. 273. by blinding. Rape-marriages. Rice. Juliana. Punishment. 74. an emblem of fruitfulness. 297. 87. Punishment. by preclpation. 82. 159. by Chatelet. 274. Quick. 34. Recall. Retroactive marriages. Rice-throwing. Punishment. Punishment. in Greece. in Athens. 78. 293. Recall. protected by courts. Q Quaint and curious wills (See wills. effect of. 104. Recall. as viewed by Beccaria. Punishments (See ancient punishments). Punishment. 302. R Rack. meaning. by sawing asunder. Recall. Property. 273. by scourging with thorns. in 1143. 81. Punishment. by beheading. 304. effect of. by plucking hair. Punishment. 277. 303. Greece. 279. Pressing to deatli (See peine forte et dure). by Roman law. Richarda. by wheel. Property rights of wife. case of. 172. 276. Punishment. in England. to Recall. Punishment. justice. by rack. 283. tuary). 279. Procedure of 82. in ancient Rome. Punishment. by cutting off ears. 93.. Punishment. 88. 300. Punishment. on law of wills. Punishment. J. to 345 Pages Punishment. 286. 304. 35. Punishment. 303. Purchase of 91. in 26. Re-hearings. by drawing and quartering. Recall. 295. 301. 279. by inquisition. by Bilboes. Punishment. References are Preclpation. by guillotine. by drowning. Empress. Recall of judges. Primogeniture. in case of Rebecca Nurse. 276. by Augustus Caesar. 94. discarded in Athens. 26. punishment by. 299. 294. by. 279. Punishment. Punishment. Punishment. "false . 280. trial ordeal. the Punishment. among Medds and Peraians (note). 304. punishment. 86. by King. Punishment. Punishment. in Athens. by burying alive. 195. Recall of judges. 118. 279. 279. recall. 306. none. Punishment. Recall. 293. 16. Priscot. 334. 279. . 180. 305. Punishment. Recall. quaint and curious). 192. by exposure to wild beasts. of Paris. 103. by hanging. by Massola. Putative marriages. 103. 82. of. England. Punishment. by boiling in oil. by crank. 74. 108. 21. of. . 307. by strangling. by fiaying.judgment" by trials. under Hammurabi's code. by Richard de Anesty's marriage. Punishment. off Punishment. explained by Aristotle. on trial by battle for treason. by branding. 285. by burning death. Recall.

in France. . 13. 138. Romans. Sanctuary. References are to Pages Richard. Sanctuary. 265. 192. 87. 251. . 252. of. 30. 265. Sanctuary. 197. sanctuary. Shakespeare. 257. 193. Henry I. by (note). Saxons. on trial by battle. 135. 36. espousal S of. 62. sanctuary under. recall of judges an- Sanctuary. 259. of justice in old England. 256. wager or law. under Mosaic code. in literature. under William the Conqueror. in Cnut's time. repealed by James 268. 244. 137. by. III. Scourge. in Scotland. 250. rape of the (note). Sanctuary. 254. in Greece and Rome. and Gunnora. mention of the gemmel ring. 166. 259. Sanctuary. Selden. in reign. Sanctuary. Scott's "Minstrelsy of Scottish Border". in Athens. punishment 279. church. Scotland. at Hexham. Sanctuary. in 1260. 272. Sanctuary. under Henry by VII. procedure in battle under. Selden. in Sanctuary. 126. • Sanctuary. under. in. definition of. 262. 68. gives origin of marriagering. abjuration of realm.of Henry IV. trials. Shakespeare. Sanctuary. under Queen Mary. Sanctuary. Richard Sanctuary. Scipio. 248. Shakespeare's reference to maiden-rent (note). Sanctuary. 122. curtailed VIII. under Ina. 16. with thorns. Sale-marriages. abolished trial by battle. of. 247. 16. trials 19. 197. Scourging. 253. 247. Sabines. wager of law. Roman marriage a partnership relation. 134. 270. how claimed. 249. 258. ordeal of bier. 166. privilege of. 57. Shakespeare's reference to trial by battle. 249. as presented in. Duke I. by. sanctuary in. Samuel. in marriages. Sale-marriages. 251. 269. ordeal under. Sennacherib. Saint Louis. Rome. Sir Walter's references to trial by battle. 20. Rome. under Edward the Confessor. Sanctuary. Sale. song of. 16. 20. Elizabeth. under Alfred. punisliment. trial by battle before. 244. under Anglo-Saxons. Right. persecutions for witchcraft in. under Athelstan. persecution 56. 83. under. Saxons. 13. Sanctuary. Sale-marriages. Scott. 33. writ of. Sanctuary. Sanctuary. 267. Mother. illustrations of peine forte et dure. Ruth and Boaz. 35. will of.346 INDEX. 260. Scotland. Sanctuary. Selden. 244. by. Sanctuary. Ring. 136. claimed by Queen cient. 111. Sawing asunder. 16. origin of. under Constantine. Sanctuary. 33. Roman marriage exalted. recognized by Salem witch 90. in. under Edward I. procedure of trial by battle by. 252. 137. Roman forms of marriage. Sanctuary. 310. 116. 124. 259. Richard 163. Roman marriage laws basis of our own. Roland. recall known as. 302.

35. clergy claimed in. polyandry Wager of law. origin of. law wager in. Theodosius. Owen. 154. 18. Stedinger. by act of Congress. 51. benefit of clergy did not extend to. in. 195. 334. 233. 13. in 1827. St. Usus. in 14th century. clergy abolished in. 70. Stoning to death. in 1657. 37. 83. definition of. of. Trial by battle. by. 162. 269. ducking. 161. United States. Thackeray's references to trial W Wager Wager Wager Wager 198. States. 185. 52. under Mosaic . in 187. polygamy of. 191. custom of throwing. 239. Themistocles. for. 226. Sorcery. 109. 219. 130. Surgeons. in 1825. 170. recall of (note). law of. negotiation for Dinah. Testament ( See wills. law against in. 196. his espousal of the Henry II. 236. 141. by battle. 60. procedure in. Shells. Varus. sanctuary claimed hy. Trent. 45. 279. marriages between. 139. trial by battle in. Trials in ancient Babylon. 304. 86. 140. trial by battle of. Teutberga. Cunigundi. 116. Wager of law. United States. punishment. 81. 197. abolished peine forte et dure. United States. Uncles and nieces. 196. in Athenian recall. battle could be stopped during trial of. and benefit of clergy. code. quaint and curious). under Roman law. 304. 70. punishment by. will of. 204. 110. Upton. the recall in. among Stafford. 79. wager by. by ordeal. plea of not ty. Qulntilius' observations marriages by (note). United Strangeways. marriage by. persecutions of. by ordeal. in time Vladinilr. 324. 15. 260. cases of peine forte et dure. Stocks. 190. Shoe. to 347 Pages Thomas Shechem's Shakespeare's will. 241. in ancient Baby- lon. Stocking-throwing. Stone's case of clergy. 262. 190. marriages by capture. of. trial of. Syracuse. law. 37. 159. 42. persecutions of. 172. punishment by Strangling. under Hammurabi. United States. Solomon.INDEX. Testimony. A'Becket. 78. Smock-marriages. 311. 17. claimed sanctuary. 232. Tudor. in 1790. Spartans. Humphrey. guil- United States. trial on by Templars. 13. daughter of Raguald. law. References are Shakespeare's reference to sanctuary. 307. 34. 279. of of of of law. 36. value of. "Third Law". Thibet. recall of. 220. 82. punishment by. Tartars. law. 303. Treason. 197. 111. Standing mute. 31. Trial of witches. 20. 196. battle. Trial by ordeal. used for votes on Athenian recall. Treason. 16. Sweden. case of Major. Council requiring re- Sisammes. 228. (note). 16. Virgil. Standing mute (See peine forte et dure). 82. ligious ceremony. mar- riages by. trial U Unclergyable crimes. 199. Votes.

Warbois. Water. 210. 149. Webster. under Saxons. Will. . by. 144. Waldenses. 309. 220. of Jacob. 309. 321. Wager of law. 203. in 1615. Wager of law. Wheel. 312. in debt and detinue (note). irrational nature of procedure in. in 1833. will of General. 320. case of Gregory of Tours. of Sennacherib. 204. 213. kinds of. Wager of law. William the Conqueror. debit. case of Robert Welby. 94. Wager of law. in criminal cases. observations Coke. statute of. 213. 326. 317. in 1166. 208. 213. Will. Wills. Wager of law. 208. 207. ordeal by. Daniel. References are to Pages "Wager of law. in Anglo-Saxon. punishment by of. Wager William William III. 312. 143. of Aristotle. sanctuary. 311. punishment. statute of Elizabeth on. 184. 209. of Virgil. 209. of Wager Wager of law. 200. Wager of law. Wager of law. Will. Wager of law.348 INDEX. 198. Wager of law. 201. 219. "Wager of law. and assize of Clarendon. Washington. 59. Wills. Sir Richard. Will. ordeals. Will. on peine forte et dure. by. under Wlnfraed. Wager of law. under. 200. Wenham. in cases of Nil Westminster. abolished wager of law. 197. "Wager of law. by oath-helpers. miscellaneous cases of. Wild beasts. of Benjamin Franklin. in United States. 327. "Waking" witches. 178. of law. 153. in 1492. 313. 315. Will. 207. in 6th century. 279. 310. of Henry II. Wager 200. trial of Alice Colynbourgh. of John of Gaunt. 213. under Cnut. 208. 324. I"V. compurgators in. 206. of Plato. Will. Wills. 212. Will. under Henry "VI. 334. ex- posure to. of Chief Justice Marshall. "Wager of law. Wager of law. 301. under Edward VI. Slade's case. 327. persecution of the. Will. 318. ordeals under. 209. of Jeremy Bentham. Will. 328. by Bracton. 197. 197. Janes' trial for witch- craft. judges under. wager. Wager of law. Wills. William Rufus. 53. Welby. on. of Katherine of Aragon. Wager of law. 219. 307. Will. trial of churchmen by. during Glanville's time. 324. of General Washington. Wager of law. description of. in ancient Egypt. 205. in 1435. 252. Will. 310. Wills. case of Pope Pelagius I. plea of law wager by. Wager of law. 56. case of. Wager of law. in 1527 (note). Will. under Glanville. Weston. 202. 211. Wager of law. quaint and curious (See quaint and curious wills). 307. witches of. abolished in England. 61. definition 156. case of Robert. Wills. 204. Will. 310. Will. days. under Alfred. Wills. under. under Edward IV. in 1492. 327. William the Conqueror. under Henry "VIII. under Edward III. of law. in law "Wager of law. 207. of law. 208. in 1833. of William Penn. 202. of Shakespeare.

122. 56. 57. 50. Witchcraft. effect of primogeniture on. at Salem. 332. 51. to animals. authorities upon. 317. trial of by law of Witchcraft. Witchcraft. 58. law of. persecution of the Stedinger under law of. Witch. 322. 323. trial of by Hammurabi's code. 106. compurgation by. on. Witchcraft. Witchcraft. prohibited by AngloSaxon laws. Witnesses. Witch-trials. under Queen Mary. 116. under Constantine. Wills. 120. Wills. Witchcraft. Witchcraft. 62. "Witch of Walkerne". 45. 70. Templars. persecutions of the Witchcraft. in England. 46. 333. 70. Witches. Wills. Writ of right. 46. Twelve Tables. Witchcraft. Wisdom of independent judiciary. 70. 61. 49. Witches. in fiction. law. procedure under. 45. 70. of 14th century. Wills. of Warhols. in Scotland. Witch-mania in Europe. 56. Witchcraft. Wills. in full. 319. 47. 68. definition of.INDEX. "Witch-finder General". trial of by Mosaic law. 59. 57. poetic. punishment of. 48. to 349 Pages Witchcraft. Witches. with charitable objects. Writ of right. Witches. . 314. References are Wills. procedure in battle under. Witchcraft. 59. 59. Wills. laws against in England. under Mosaic 46. 52. law of Charlemagne against. Witchcraft. in Scotland. Witches. 54. 158. 330. effect of church's influence. in France.

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