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


when the general feeling of individual unrest has brought about such disrespect for our existing institutions. is simply. The development changing ideas of of the great body of our law. 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. with the ever meet the needs of the people. in the history of our country. In so far as we have actually procivilization. to gressed. . that "Motion means Money". Industry. being paraphrased. lest we forget some of the valuable informa- tion of antiquity. There was perhaps never a time. (1) customs found unavailing. advisable that we should occasionally stop and consider the lessons of the past. 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 . from the brutalities of a barbarous period. In this age of ours. in keepit is ing with the moving spirit of the age. therefore. has been gradual but certain. but the of the times is for continuous change. to study or analyze the history of our institutions. 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. and the higher standards obtaining.INTRODUCTION.

2 INTRODUCTION. to refuse to profit puerile by this lesson. mon law in the remedial procedure of the present day. by custom. is radically wrong. because consistent with the needs of the people. obviated. for even "a burnt chUd" will avoid tbe fire. rather than by . too often reflecting the un- just and unequal demands of an aroused public sentiment. The States. crystallized into The beneficent rules of conduct. incidental to too many new trials and other objectionable methods. to the end that simplicity may be attained and the interminable delays. But this revision should be cautiously made. shaped by designing politicians. Undoubtedly much of the remedial and substantive law of our period needs revision. 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. in the evolution of civilization. first attempt to simplify procedure in the United of the by the adoption years practice New York Code. 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. But the prevalent idea that an increased volume of statute law will furnish a panacea for all existing evils. law. 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. should be jealously preserved against the unscientific fragmentary legislation. re- from the present practice.

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

another of the present popular fantasies to be avoided. 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. a blind faith by the Courts. the majesty of the law has been revered in no other country on the face operation. because the voters were Arissimply tired of hearing hiin called The Just. in Greece. if this charge was . to perpetrate the most intolerable out- rages against civilization. for an unsuccessful was also tried in ancient Athens and because of some unpopular decision. Aristides. The is Judicial Eecall. and some votes were cast against him. were permit- ted to be established in utter disregard of the rules of evidence. The old Anglo-Saxon practice of preferring the charge of "False Judgment" against the judge whose decision was challenged. by the loss of a hand. 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. was recalled. free per legal ideals. It ' ' ' ' . dependent judiciary helped for centuries. in the adminstration of the law. and a vacillating.4 INTRODUCTION. where it was in vogue. as we see it in ancient history.sustained. Persia and other antique nations. whereby unprovable offenses. brought totle 's evidence is to the effect that this law about the most deplorable consequences. 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. in the popular standards of the people. the "most just Judge" of that city. who was recalled.

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

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

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

of having their clients stand viction mute and refuse to plead. able to force a plea. this custom conand thousands were "pressed to death. filed with prisoners. in all such cases." for standing mute. indeed. as it were. 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- . tinued. availed themselves of this subterfuge. illustrate the attempt of the Church to mollify. to be conable gratulated that our present procedure. The "Benefit of Clergy" and "Privilege of Sanctuary. in England. in England. until the past century. with imperfections.8 INTRODUCTION. when we consider that these abominable customs ob- tained. has risen to the standard where to reject such all of its it is inhuman and barbarous practices." if he persisted in his For centuries. brought about the greatest mute and finally the practice. afraid to submit to the "Trial by Battle" and refusing to plead to the indictments against them. when arraigned upon a criminal charge. which resulted in the crowding of the and prisons. in the seventeenth century and obstinacy. without some amendment of the procedure and adroit criminal lawyers. judicial severity in the case of prisoners standing This. we are. when their conof felony would be certain to result and the jails courts found themselves helpless to avoid a condition. for some years. in time. came to be to apply a heavy weight upon the chest of the accused and to literally "press him to death. the cruelties resulting from the harsh administration of the criminal laws of mediaeval times. The same practice was followed in the witch persecutions in this country.

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

if the usual modicum of infelt may be lacking. Not nearly all the learning or the law upon any one of the subjects presented. or did in this instance. led to the more minute treatment herein. in tracing the old laws different paragraphs pertaining to the various subjects introduced. aid the lawyer. with fre- quent illustrations from concrete cases. This is ularly attracted the attention of the author. which could the Grrecian be so profit- ably discussed. old proceedings prompted a somewhat painstaking study of many antique volumes. 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.10 INTRODUCTION. by the reader. be shared. . that some of the interest and customs of by previous ages. as a basis for the presentation of the following pages. who seeks to re- produce pen pictures of the antique proceedings of the past. will be found set forth in the the author. may. will appear. but a general outline of each topic. but study of the subject is of course essential to give any tolerable idea of the obsolete laws and customs of other days. None of the States or the many legal antiquities of Eoman Empire. in a measure. 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. who is kind enough to peruse the work. have been attempted. 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.

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. as presented in these "Legal Antiquities. 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. in the pathetic drama of the evolution of the race and we ought to erect monuments to their memory. expressed by William Ejiox.INTRODUCTION. we should be comforted with the reflection that such institutions are but mile-stones of the centuries. that "We are the same our fathers have been. "When we contemplate the lessons of the past." the truth of the words of Longfellow. we can but realize "* * the -world Is very old. With the era now existing." for if we had lived and moved and had our being in the dark days when these customs obtained. 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." we can but realize the plain truth. and occassionally wander back to scatter flowers upon the monumental shaft. however. troop of shadows. if we could. generations pass as they have passed. moving with the sun. that * And A . as it were. but of the when we read of these customs men and women of antiquity. marking the rapid progress of the race. without deserting the live issues and duties at present confronting us.

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

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

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

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

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

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

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

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

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

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

youngest being a son. Pollock and Maltland's History English Law. and followed by physical union. would be given precedence over a later marriage by another man with the same woman. to give effect to the bare consent. upon an inquisitio post-mortem. 371.** During the reign of Henry II. existing contract. marriages with banns. came before the court. a tenant in chief of the Crown. had certain legal advantages over a marriage without banns. Long before his espousel of Alice. as interpreted from cil the middle of the twelfth century until the Coun- of Trent. the lived for sixteen years and had several old. followed by a consummated union. duly solemnized in religious form. p. He had solemnly espoused one Alice. in terms of a present.22 MAEEIAGE LAWS AND CUSTOMS. to determine which of two conflicting claimants was his rightful heir. Joan established a common-law marriage. lib. "11.*'' In 1254 the interesting case of William de Cardunville. Alexander III. before the law. Pollock and Maltland's History English Law. four years named Richard. and no religious ceremony or the presence essential to constitute a valid marriage. decreed that a marriage by mere consent. and she was adjudged "11. with whom he had children. formless marriage was a marriage. tit. "unhallowed and unconsummated" as against a solemn formal contract. but still the unblessed. yet this decree was consistent with the ecclesiastical law. without the religious ceremony. in present form. he had lived with and had a son by one Joan. 4. . 372. "Complliato Prima. 6.*^ It seems a strong case. of a priest was before the catholic church. and this son was also named Eichard and was twenty-four years old at the death of his father. c.

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

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

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

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

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

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

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

The custom was based upon the fealty which the husband owed the lord and since the woman lost her inheritance. Scene VII. but she shall pay to me her maidenhead. ancestors. 299. pp.) pp. 214." a sum paid fine. I. in the nature of a consideration of his relinquishment of his acfirst customed right of spending the of his tenant. 371." vol. . 90.) And tlie same custom obtained among the Mohammedans. ere they have It. I. Javanese. in Henry VI. Reeve's History English Law. His custody continued until her marriage. 370. I.) (Wood's ™Bouvier. as well as our early Saxon (Wood's "Wedding Day in All Ages and Countries. maris a mere matter of purchase and sale. in All Ages and Countries. {Ante.. even after she became of age and she could only marry with his consent. She was bound to obtain the consent of the Lord. but it was sufficient. like the evidences of genius and depravity fre- quently found co-existent in the same individual. and hence the custom referred to in the text. when he says: "* * * There shall not a maid be married.*'" night with the bride As the relics of a barbarous age. 155. to marry. and then he was bound to find her a proper marriage. the validity of exactions known as "Maiden-rent. 3. the lord had it in hia power to exact anything of her. It of purchasing wives is perhaps derived from the old was known to the ancient Jews. of Mount Sinai. 173. II. a Tarter tribe. pp." Sec. until she reached her majority. or lose her dower. if she had the consent of the chief lord. The custom Salic law. in to the Lord of the Manor. in an early day. p. In legal contemplation. 85. Cowel. Reeves History English Law. a female was in the custody of the Lord paramount. 174. 2' 326). 247. riage Ethiopians. Laplanders.30 MARRIAGE LAWS AND CUSTOMS. pp. and vol. p. 210. 371. are inBurckhardt says tliat among the Bedouins. p. the ancient Germans. if she gave cause of forfeiture. 173. Ostiaes." vol. an exaction allowed by way of a punishment for the ofCense of belonging to the frail sex. Circassians." (Act IV. Romans and French. vol. White's "Law in Shakespeare. Shakespeare makes Cade refer to this old barbarous custom. 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. idem. 369. such licentious cus- toms. II.

of giving a dowry.^^ of the Eomans.. first known code of laws ever written. as existing facts connected with the given institutions of a past age and also because many of the ancient customs. the son of Hamer. in altered form. " Smith's Diet. gradually changed. p. The custom wife. as we find that the code of Hammurabi. land. "In the. directly or indirectly to this old practice. the oldest known laws treat of the marriage dowry.®^ In patriarchial days.** vol. with the passing years. furnish the basis for the later customs and practices. the source of so much legisla- and litigation in ancient England. in case of the divorce- ment of a barren XXXIV." ""Genesis. who . negotiating with old Jacob and his sons. Indeed."«2 The donatio propter tion nuptias. or marriage portion. in the old code of Hammurahi. 12. King of Babylon. vided for the return of the dowry. or sums paid by way of settlement being a mere modification of the old sale and purchase of the bride by the husband. the presents. to meet the different conditions and institutions of later periods.MARRIAGE LAWS AND CUSTOMS. we find Shechem. teresting 31 from a historical standpoint. 16. II. 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 . which has obtained from an ancient period. France and other continental countries. is no doubt the result of the old practice of paying for the wife in money. " Wood's "Wedding Day in All Ages and Countries. and the old marriage dowry. so far as our history goes. written 2250 years before Christ prowife. Greek and Roman Antiquities. is traceable.

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

by the Earl of Armagnac. refers to Aquitaine as "a dowry for a queen. p. 131. Boyet. Scene I. of previous daysJ^ However this may be. Cordelia: "What. in "Love's Labour's Lost. Act II.) And the poor Lear. and the Christian church no doubt adopted the wedding ring. "Wood's "Wedding Day in All Ages. in his various plays. nil. your dowry 'greed on. in the (Act I.. the ring being given as a symbol of the husband's good will. 53. 95. in speaking to the Princess. in All Ages." Sec. L) White's "Law in Shakespeare. the custom of giving wedding rings to the bride dates from an early period. Scene least. Scene I. as a convenient in ancient sign of marriage.MAREIAGE LAWS AND CUSTOMS. you. is made to ask the duke of Burgundy." vol." (Act v." King John tells Phillip of Prance. p. 66. XXIV. "Her dowry shall weigh equal with a queen.) Petruchio tells Katherine. in lieu of the dowry money. that if his son shall love his daughter.''^* 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. pp. I. Scene I." vol. in "Taming of the Shrew": "Pet. Thus. II. ." (King John. grew out of the old custom of giving the bride a dowry." (Act II. and will you. from the pagan custom of the Italians. refers to the "large and sumptuous dowry." vol. in discarding his daughter. We find that Isaac propitiated the favor of Eebekah by present- ing her with a massive ear-ring and two bracelets. 33 to see witnessed by all the persons who had assembled the marriage ceremonyj^ Seldon says that the use of marriage rings. p.) Gloster. Shakespeare makes frequent reference to the marriage custom of giving a dowry to the bride. Scene I).. 25. Your father hath consented that you shall be my wife. II. will you require in present dower with her?" 1' Henry VI. "Wood's "Wedding Day "Genesis. In speaking of the proffer of his daughter to the King. 22. I will marry you. 97.''^ The betrothal ring was used Eome. 16." (Act II.

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

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

*^ That this custom was later used by the early Christians. If re- woman was and ' ' obliged to "loose his shoe off his f oot " spit before his face. "Wood's "Wedding Day in All Ages. id-em. as a token -of his renunciation of Boaz's right to my shoe to the son of a slave... p. IV." vol. is said to be purely a British custom. vol. as a token of the exchange and of his power over her. who touched her on the head with it. 16. at weddings. the marry another. 16. in the early when Stocking throwing. '' 13." to great Reformer used the shoe at a marriage ceremony.. "Wedding Day in All Ages. "Boston Trans. would seem to be confirmed by the story connected with the proposal of the Emperor "Vladimir to the daughter of Eaguald. for when asked if she would not marry the Emperor." vol. 8. of her complete independence. Aug. she replied: "I will not take off to Boaz. p. for "as shoe and delivered of this famous it it Israel concerning changing. in England." so the kinsman it woman plucked off his shoe and gave Euth and of marry her." I. the father of the bride took off her shoe and handed it to the bridegroom. 1910. she could not nounced his fused. that a man plucked off his to his neighbor. p. we read that was completed. I. according to Bible evidence." show that the Wood's Ante Wood quotes Michelet. the marriage '** ' And as a part of the Anglo-Saxon days. 5. has existed from a very early day and XXV. "=Rutli. . in his "Liife of Luther.. 7.36 MARRIAGE LAWS AND CUSTOMS. Wood's "Wedding Day in All Ages. 218.*^ betrothal. right.*" •''Deuteronomy. 10. Hutchinson's "Marriage Customs in Many Lands. II.*^ from " as an assertion The custom was folwas the custom in lowed. in the espousal be- tween Euth and Boaz.

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

as became any decent " See Article on "Ancient Marriage Customs." Chambers Journal. Anne Sellwood.38 MAERIA6E LAWS AND CUSTOMS. 813. 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." 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. June. same Home In 1766 a Whitehaven bride also sought to attain the end. This notion that a bride who lacked modesty. " "Matrimonial Curiosities. pt. All Wiltshire and John Bridmore.** This eccentric custom. 48. vol. known as "marriage in a smock. of Chilters. p. as a basis for charging him with responsibility for her debts." or "Marriage in a Shift. under which a widow was married with nothing on but a "shift." in Uncle Remus' Magazine. was also followed in the Colonies." as a public declaration or warn- ing to her creditors that she took no property to her husband. as known "Smock-marriages." upon the theory that her second husband would thereby escape liability for the debts contracted by her former hus- band." or "smock. . '*" ' without any clothes or head-gear on. 1714. 1912. finds in the English cases during the seven- many examples teenth and eighteenth centuries. 2. ' ' in England. On October Saints. were united in 17. by going to church in her smock or under garment and thus her creditors "shift" for themselves. by going to church.

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

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

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

arising from some isolated case. "^"^ The ballads of that Eoxburghe also tell. in France. begged a condemned person for her husband. and France is evidenced by the many references centuries. she limps. published during the seventeenth and eighteenth Montaigne tells a story of a Picardian. 2. in olden times. ^"^ Ante idem. 812. seeing a lame dame advancing toward him. 48. who.) '"Ohamhers Journal. Certainly this exemption had a quasi-legal existence in France in the fifteenth century. despatch me quickly. she would thereby save him from execution.^°^ Whatever recognition it the law gave this custom. "" Ante idem. or under-garment. her plea would be granted. '^'^ vol. how a merchant of if a woman married a condemned man under the gallows. and that if any notorious strumpet would beg a convicted felon. in order that she might wed him. woman petitioned King George for the pardon of a convicted felon. Ante idem. about to be hanged for her husband. to the practice. 2. under Tyburn Tree. cried out: "She limps. such customs. . 25. whereiu the Court recognized it. as there are instances of p.^"** Manningham states that this was the custom. that actually existed iu England. not and Italy.42 MABEIAGE LAWS AND CUSTOMS. pt. in order that their joint lives might be bet- tered by so holy an action." (Vol. with a white wand in her hand. it in the annals of that country. which gave it currency and caused it to be followed in other instances. in story and rhyme."^ Sterill reports a case that he had seen whereiu a woman. in rhyme. clad only in her smock. We are told that in 1725 a I. the law.

If you. judging the future by the past. based upon a false public opinion and the generation of the species will no doubt be conducted along more advanced and scientific lines. Chichester.: MABEIAGE LAWS AND CUSTOMS. "We may your death remove. Will grant to us your love. "This is who thus addressed him our law. . known as marriage. 43 who had and last speech German. For in the the next few centuries. to enter into a study and analysis of the vul- gar errors in connection with this subject-matter. appropriate themselves to one another. 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."^"* But having left the fixed doctrines of the law govern- ing the relation between the opposite sexes. it is close. so we need "*'Roxburghe Ballads. after his sentence upon the gallows. was wooed by no less killed a than ten goodly maidens. in accordance with the law of natural selection." quoth they. 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. governing the relation whereby the opposite sexes. however. in Ueu of our good-will. In the ultimate days. the marriage relation will continue same crude and it unscientific condition that has controled for the past five thousand years.

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

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

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

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

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

lii. 553. Hen. Pollock and Maitland's History English Law. 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. legislated against the witchcraft which was heathenish. and the fear of a return to paganism was looked upon as most improbable. his body was refused burial in the Cathedral. ii. . Brunner D. and a book on the subject of astrology was found under his pillow.^ And during the reign of this monarch. R. p. was accused of necromancy and sorcery and when it was discovered that he had died suddenly. when heresy »Cnut. 678. Lea. even.® During the reign of Henry I. 4. Archbishop Gerard. This temporizing by the church continued until about the beginning of the thirteenth century. in England. p. 653. Pollock and Maitland's History English Law. early centuries did considerable 49 in after ages. Pollock and Maitland's History English Law. II. II. 553. " II. harm The Anglo-Saxons patterned their laws against sorcery and witchcraft after the folk-laws of the continent and Cnut. op. cit. by little harmless excursions into the great realm of the supernatural. 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. 71. however. the church was not inclined to look with such aversion upon the class of criminals accused of dabbling in the black arts. II. of York. 420. •Leg..— WITCHCRAFT AND SOKCERY. G.

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

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

Fifty-nine Templars were burned alive.52 WITCHCRAFT AND SOECEET. in a field adjoining the city of Paris. a fitting climax to this reign of terror. fire. In 1429 the poor Joan of Arc fell a victim to the charge of witchcraft and sorcery and like dual criminals. 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. but actually con- . until the year 1313. Philip rV. by a slow Pope. of France. as a body. 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. even as the poor Stedinger had been. in the previous century. not only failed to raise a hand to pre- vent the conflagration that consumed and tortured the sainted body of this patriotic victim. confessed the most unreasonable charges which were lodged against them and this only heightened the popular clamor and the persecution against them. ordered the arrest and trial of the the confiscation of their goods and property. religion and law. when the Grand Master of the Order Jacques de Molay was burned to death. inaugurated by the Pope and Monarch. after they of witchcraft had been convicted instances of their persecutions. and sorcery. This charge effected its object and they were extirpated. and other upon this charge. oc- curred in the different provinces. proceeding hand in hand to accomplish the crime. acting under authority of the Templars and Hundreds were put to the rack and when tortured by pain.

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

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

vol." ^Hutchinson.: WITCHCEAFT AND SORCERY. the greatest evil to narrate. II. Louis XIV. during the sixteenth century. While rooting out superstition. the many errors of ignorance at all against witchcraft Eeformation made no head-way and sorcery.^^ 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. on Witchcraft. insisting . Trais Echelles. Fifty witnesses testi- him and after being placed upon the rack. 201. of Lyons. commuted their sentences to banishment for life. 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. Germany were Italy. In the year 1670 a number of women were condemned by the Parliament of Normandy..^^ and prowling around at night and destroying children. while their fol- of the period and strange lowers were persecuted for this crime. after his confession. French did in the centuries gone by. so far as the persecutions for witchcraft concerned. was indicted for man wolf. Camus to be "tied to a stake and burned alive and that his ashes be then scattered to the winds. "^^ The and and conditions in England. or fied against In 1573 Giles Garnier.. were about the same as in France. when the Parliament of Rouen presented to him a memorial. 55 In 1571 the celebrated sorcerer. for riding broom-sticks to the Domdaniel. ^ Mackay's "Memoirs of Delusions. p. being a loup-garou. he confessed the crime he was charged with and was condemned by Dr. was burned at the Place de Greve. in Paris.

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

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

in body or member. consumed. after date witches. without previous strangling. the first offense to be imprisoned for a year and stand in the pillory once a quarter. And if anyone thereby be wasted. ' ' ' This statute continued on the statute books until the year 1736. c. charm or sorcery. Edward VI. or lamed. . it was enacted by 5 'Elizabeth. against the imaginary crime of witchcraft and sorcery. three thousand witches were executed^" "" and during the first eighty years of the seven- Very severe statutes were passed during the reign of Elizabeth. practice. or burned. II). and stand in the pillory once a quarter. or feed any such spirit. any conjurgation of any wicked or evil spirit. enchantment. We are reliably informed that during the Long Par- liament. covenant with. The statute 33 Henry VIII. or shall consult. craft as a crime of first magnitude. or the lory. Reeve's History English Law. was exerted against the lives. or exercise. 8." The milder punishment was not inflicted. p.) "See "Butlers Hudibras. 12 and as this left no law in force to punish this class of offenders. it shall be felony. the second offense to be death. (V. when it was repealed and suffered no longer which to disgrace the intelligence of the country.^^ On his accession to the throne in 1604 it King James passed the statute whereby was enacted that "If any person shall use.: ' 58 WITCHCEAPT AND SORCERY. 349. c. whereby any one shall happen to be killed or destroyed. limbs. but all convicted under this statute were hanged and burned. such offender shall be imprisoned for a year. alive and quick. or property of the subjects. that if any person used or practiced witchcraft. c." edition by Dr.. Zachary Gray (vol. confinement for short intervals.16. pnnisliable regardless of whether it by death. conjurers and fortune-tellers were only subjected to the jail sentences common to other mispil- demeanors. without clergy. was repealed by 1. or any of his goods destroyed or impaired. in England. during that time for six hours.

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

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

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

." at the trial of two Swedish women. but fortunately they were charge.^* The funeral pile had been and tinder were all ready to burn acquitted of the a period wlien their innocence was considered a crime." p. "Acta et Scripta Magica. — until was repealed.*^ delirium of witchcraft was raging in Euits victims numbered tens of thousands millions. 258.^'^ The good William Penn. when the statute of While the rope. between this date and the year 1736. prepared and the flint them. But craft this was the last judicial execution for witch- in England. during which time." " Upham's "Witchcraft in Outline. prisoners were charged with the crime.62 WITCHCEAPT AND SORCERY. presided in the ' ' City of Brotherly Love. in Outline". Nevin's "Witchcraft In Salem Village. fourteen of them being women. who fled from similar persecution in England. "Upham's "Salem Witchcraft. James and prey its votaries —the fever spread across colonists also fell a the ocean and the New England to the superstition. Maokay's "Memoirs of Delusions. 1692. 6." p. lasted from February until September. The fear of witchcraft and sorcery seized the multitudes in the United States. witchcraft was a capital offense.'^ Under the early statutes of New York and Pennsylvania. nineteen supposed witches were hung. although many I.") =' (Hauler's II. who were arraigned for witchcraft." "XJpham's "Witchcraft in Outline. Massachusetts. 6. The persecutions at Salem. 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.

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

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

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

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

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

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

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

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

p. guised to do you hurt. Franconia quite popular in Germany." •" II. dark shadows." familiars of witch or wizard or even the latter themselves. Canadian-French still believe in the man wolf. and in the southern portion of Nigeria. Mackay's "Memoirs of of Delusions." or "Witches Gazette" was berg. or witchcraft.^^ In 1627. a ballad entitled the "Druten Zeitung. being " II. and Jones' "Negro Myths from the Georgia Coast. Amaury Talbot. Mackay's "Memoirs of Delusions. vol. The bird which flies in at your open door in the sunlight. . Describing these superstitions. in a recent article in the London Telegraph. when the flames brought forth shrieks from the poor wretches who were burned alive . by the poet. The sufferings of the witches burned at Wiirzburg.^" 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 ." by William Meinhold. reigns supreme.. the small bushbeasts which cross your path while hunting. scatter a whole town. himself. see Journal of American Folk Lore. carried 71 them on his own back. or its soft green twilight. in the shape of a goat. all may be "The bush with is ing lights. superstition and witchcraft lurk in all the forests and lakes of the country. who grew quite witty in his descriptions of the contortions produced by pain. 178. 277.^^ The "Amber Witch. the bat which circles round you at night. Bruce's "Plantation Negro as a Freeman". Mr. and quiverpeopled by many terrors. but among these 'Ojje'. as recently shown by P. the Devil." p. 205. Talbot says: the "Many ignorant delusions of the loup-garou. were minutely described. III. Bam- and other cities and provinces of the German Empire.WITCHCBAPT AND SORCERY. among the southern darkles. disSometimes the terror of witchcraft will And for belief in witchcraft." p.

It is fortunate that only the small percent of the densely ignorant now-a-days. cataloguing the long of judicial murders. may have they with- stood the frenzy of a wrought-up public clamor. ing of the books of witchcraft. of Mary Schweidler. beings whose lives were forfeited. by making earth a Hell. in the name of the law. in human tragedy list Europe. following only the red •flag of murder. based upon the delusion of But let us draw the curtain upon this continuous enacted for two and a half centuries. of the danger of following of public sentiment. These jurists of the past centuries feared their recall. upon the stage where super- stition and delusion alone held sway. ' ' by those who thus "Hoped to merit Heaven. in the extreme. if who participated in this wholesale slaughter of indi- vidual right. one of the most exceptional and interestfiction. in the early little It is sad. 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. to contemplate the long list of human ' ' days of knowledge. account for the misunderstood facts and phenomena of nature by the fears and delusions of witchcraft and sorcery and that in the ." And it is of Justice doubly sad. in courts of justice. most interesting is trial for witchcraft.: 72 the WITCHCRAFT AND SOECEEY. and in this a lesson can be learned.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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. The reasons why they stipulated that The John the various guaranties "Right shall not he sold. cuits 91 cir- who divided the realm into six and afterwards followed a fixed judicial system. after the conquest. was removed from his office. 273. 465. by the intrigue of John.^* From the reign of William the Conqueror. 471. sheriffs and bailiffs. 280. Reeve's History Englisli Law. the king's brother. Reeve's History English Law.^^ order to obtain justice in the king's will of the sovereign So dependent upon the was the I. 466. 472. chief justiciary and chancellor. justices itinerant. tenure of the judge. the administration of Justice was still kept in the hands of the king. during the reign of Eichard that we William de Longchamp. that the king should only appoint "justiciaries.RECALL OF JUDGES. who was regarded as the source of all justice and law. delayed or denied". ='I. . in courts. 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. this Great Charter of liberty was exacted from King John. 204. at a find moment's notice. pp. conditions existing hefore the Barons exacted from King of the Great Charter are known to all readers of English History. 283.*" 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. or dismiss them.) " I. until that of King John. if they refused to do his bidding. Reeve's History English Law. Earl of Morton. Pollock and Maltland's History English Law. Reeve's History English Law. '" I.*^ "I. p.

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

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

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

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

like other civil officers of the The first Congress. in 1789. familiar with the mistakes of the ancients and the reasons for the establishment of the judicature of England. a member tion of the convention which framed the Constitu- and afterwards Chief Justice of the Supreme Court. Con. of life tenure.^^ first they were subject to removal. Speaking of this earnest patriot. S. seeking the attainment of The patriot fathers. conscience for a mistake in the performance of a proper judicial function. only by impeachment. 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. federal judiciary formulated by Oliver Ellsworth..96 RECALL OF JUDGES. III. "Webster said that he was "possessed of the clearest intelligence and °'U. 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. 1. in the establishment of the judicial system in the United States. has challenged the admiration of the world. adopted the method that history had commended It to England. . Art. upon an independent founda- tion. enacted the act. the respect paid to the majesty of the law in that country. 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. sec. Mr. with the office. of other nations.





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

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

Philips. money in- envy and divers other equations.. In the days of Hammurabi. lost his hands. 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. were likely to be used in passing upon the qualifications of the judge. 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. favoritism. when the veterinarian paid for all the stock he could not cure.RECALL OF JUDGES. resulting from a house he had built after- " See Excellent Paper of Judge John F. guaranteed to us by the patriot fathers will be trampled under foot. read at 22'. Omaha 1912. Feb. is If such a custom generally prevailed. for the elements of personal ambition. this will cease to be a Government of law and become a mere aggregation of people. under similiar conditions. it due course of time we would indeed have: probable that In the "Red ruin and the breaking up of laws." . this 106 mistaken custom of the Babylonians and the an- cient Athenians shall be generally established. all damages Club. who was unsuccessful in an operation. terest. or artisan. the builder. then the safe- guards of the Constitution." when the standards of justice were such that the surgeon. 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. before the forum of a wrought up Nor would it be different in any other country. when arraigned public sentiment.

in England. the admiration of the civilized world. who. then the judge who set aside a judgment was humiliated and graced and peremptorily removed from virtues like justice. to that of the exalted notion of an absolutely independent judiciary. in England. for remuneration. has certainly demonstrated the wisdom of an independent judiciary. that obtained between the generally ignorant men selected to parcel out the right. 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. when he was liable to be fined and removed for entering "a false judgment." was in strict accord with the low standards of justice then obtaining and from this degraded position of the judiciary. Illustrative of the complete independence that for centuries has characterized the English judiciary. in those dark days and the pure and scholarly jurists.''^ "It is a just source of pride to Bngllslimen that not a single lynching has occurred for three-quarters of a century. for centuries have made the ad- ministration of the law. in a country governed by the English law. it is reported that when ac- . there was the same difference in the quality of justice administered. in England. The history of the judiciary. 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. than in England. office. 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. The behavior of the judge of the time of Cnut.— 106 RECALL OF JUDGES. falling down. "WTien.

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

they may incur the everlasting condemnation of the citizens of succeeding commonwealths. from the sacred altar. ple for over a century . 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. are making right and wrong for succeeding ages and by tampering with the institutions that time has approved. which perpetuates the independence of the judicial department and the statesmen of the present age. with rough hands. without thinking of the permanence of their work.108 RECALL OP JUDGES. Many a hearth-stone in this and future ages will need the protection guaranteed by the fundamental principle of government.

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

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

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

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

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

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

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

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

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

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

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

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

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

that the victor shall have the land which in dispute. Select Pleas of Crown. 634. then the tenant shall be acquitted from his claim without recovery by the demandant. so that each champion is. and are in a coat of armour. upon issue joined upon a writ of right. 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. 1610. Lond. a court erected for the judges of the court of common pleas. 117. bare-headed. "A "When the champions. ar- rive within the lists or place of combat. 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. if the demandant shall prevail in the combat. but if he be overthrown by the vanquishing of his champion. swears in the same manner that they are. 41 Herbert's "Antiquities of Inns of "Selden. GlanvlIIe. Court. Herbert's "Antiquities of the Inns of Court. Pollock and Maitland's History English Law. " Beames. thus armed with batons. When the court sits. who are introduced by two knights.^® as piece of ground is in due time set out of sixty feet square. PI. so that death very seldom ensued this civil combat. bare-legged from the knee downward.: 122 TRIAL BY BATTLE. p. was the shireeve. and the champion of the demandant then taking the other by the hand. enclosed with lists and on one side." 115. '^^ ' Selden describes the ceremony governing the follows civil combat. or staves of an ell long and a four-eoronered leather target. with red sandals. Next an oath against sorcery . or ought to be. p. . which ought to be by sun-rising. 115. . 87. The weapons allowed them are only batons. impr. and with bare arms to the elbows. "This. II. proclamation is made for the parties and their champions. . Duello." pp.

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

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

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

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

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

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

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

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

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

Coll. 200. before Henry VII. 154." pp. 1571.) "Dyer. 112." reports Sir magna Henry by Spehnan. voc. 102.^^ The last trial by battle that was waged in the court of the last battles judicially fought One of common pleas at Westminster. 512."^* '^^ upon English soil was that between Sir James Parker and Sir Hugh Vaughan. 204.) And another in the county palatine of Durham. Nellson's "Trial by Combat. two citizens of the laboring class elected to decide their cause by the wager of battle. Paramour. 157. in 1631. (Cro.132 TEIAIi BY BATTLE. fol. 322. "non sine juris consultorum perturbatione. part 2.'® In the last English case wherein the right of battle trial was recognized. The fight occurred at Eichmond and resulted in the victory of Vaughan over Parker.^* who was himself a witness of the trial. "Jolin Stowe. "for he was fals unto God and unto hym. " Afterwards a battle occurred in the court of chivalry. in "Gregory. A. D. 199. (Rushw." pp. This was the celebrated case of Lowe vs. 1625). The battle was the result of a quarrel about certain arms given by the King to Vaughan. II. . 203. Car. vol. "Spelman's Gloss (sm6 ^ Ante idem. Campus.'^ occurred in the Queen Elizabeth. in 1492. Westminster. The battle octhirteenth year of curred in Tothill-fields. 475. Nellson's "Trial by Combat. 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. 301. reported by Sir James Dyer^^ and also by Sir Henry Spelman. 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. 19 in 1638.. Rym.

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

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

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

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

III. if thou dar'st. "King Lear. then obtaining. in Ivanhoe. in I' Vernon and Bassett implore the right of trial by Henry VI. by the valiant and fearless. . and Act II.: TRIAL BY BATTLE. White's "Law in Shakespeare. bat." Sec.. but selfish.. 229. "Act I. battle Peter. dealing with "Trial hy Battle. in II Henry VI. and the trial by battle is utilized as the instrument of justice whereby the innocence of this gentle Jewess is established." see. III. True to the faith of her fathers. pp. and his apprentice. I came est. Scene. with precision. in King Lear. 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. Horner. Scene. if the right is adverted to. there is my honor's pawn. III.* ^ and the details of the trial by between the master.. "Act IV. Act V. Scene. Engage In proof whereof. and charitable. I. 137 in the following Eichard words in "Surrey. Sir "Walter Scott has added the zest of human inter- commonly felt for the innocent.. from which much as the details are given in the case this scene is actually taken by the Poet. out to the uncertain fate of the gentle falsely accused of sorcery "King Richard II. are made to try their cause by the wage of battle. Scene. Act IV. it to the trial. are set forth. amorous and vacillating Brian de Bois-Guilbert.. 232. II.'^" Edgar and his bastard brother. I. wrongfully accused. For exposition of the ahove portions of Shakespeare's plays. to cope withal. Scene. and the rule of Knighthood. 191."" battle. Edmund. and lovely Eebecca... and witchcraft. to Lord Fitzwater.

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

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

misty past. ture of England. as evidenced by the law writers of the past and illustrated by the works of poetry and fiction. but only to trace tlie rise. . before the dawn of our modern jurisprudence. portraying this ancient mode of trial.140 TRIAL BY BATTLE. 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. has faded away. with the generations that have crept to rest.

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

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

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

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

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

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

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

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

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

Let as many also come in on each side the judgment. the accused was to attend the priest. . On the on nothday of was to take the sacrament and swear he was not guilty of the crime imputed to him. 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. his. . the nine feet measured being distinguished by three and three. ing but bread. up to his wrist but if the accusation be threefold. '"Herbert's Antiquities (1804). let two men be brought in on either side. 150 stock TRIAL BY OEDEAL. And he who shall transgress these laws. to be constant at mass.. ' For three days before the offering trial. . the trial he water and onions. and the priest shall sprinkle holy water on them. . let the ordeal judgment or trial be done upon him. '^^ . and so let him go. Pollock and Maltland's History English Law. pp. to make his and in the interim. and give them the text of the holy gospel to kiss. hand shall be sealed up. 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. as also the sign of the cross and no man shall make the fire any longer than whilst the benediction beginneth. that it be as hot as is afore expressed. where he shall throw down the iron and hasten to the holy altar which done. p. der Berliner Sltzungsberlchte XXXV. note. At the first mark next to the stake. 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. for a fine or mulct. and the third day after viewed. and accused both came "Dr. to make experiment. Llebermann's 829. then to his elbow and when the judgment shall be prepared. and let them be fasting and abstain from their wives that night. to sustain himself salt. 39. . 147. I.. to the place of trial. . along the church. The accuser with not Akadamle. that he pay 120 s. whether it be clean or unclean where it was so sealed. 148.

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

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

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

by the proceedings of men. II. too often erected deal was then so by ordinary mortals. or that of hot water and to undergo.154 TRIAL BY OEDEAL. based upon the sacred ' ' LL/. ' ' law of the . Essays in Anglo-American Legal History. 154. accorded this " I. in the Assize of Clarendon. Harvard Law Review. Tom. The orfar "the law of the land" that one accused of a capital offense. 650. p. 394. 77 Traites sur les coutumes Anglo-Normand. but one accused of a capital offense was to be entitled to one of the old-world sacred processes. "Thayer "Older Modes II. and the and was entitled to select the ordeal of hot iron." p. p. V. in the Assize of Northampton. 577. Inae. and again in the year 1176. Mere human testimony was not enough to send a man to the gallows. to determine his guilt or innocence of the offense charged. because he had thus the' realm. 31. 64. History Englisli Law. i. wherein the judicium Dei. of Trial.. under the supervision of the priest or bishop. 152.** In the year 1166. Foedera. But one who had not been land. Pollock and Maitland's . "Leges Henri. sec. defied the law of who refused the ordeal. the Saxons had been accustomed to the ordeal laws of Ina and later monarchs continued in the accused person effect. Hale's History Common Law. o. that the Laws of that Henry provided "No one '*^ ' is to be convicted of a capital crime by testimony. a trial. p. was supposed to take the place of the false stand- ards. as an outlaw.** Prior to the thirteenth century perjury was so com- mon and it was so impossible to avoid the effects of a false oath. could be executed. 5. 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.

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

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

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

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

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

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

Chronicles of Croyland. the King repeated the accusation that his brother Alfred had met his death at the hands of Duke Godwin." Then the King took it the bread and blessed not. 301. ""Roger of Wendover. both because of his dislike for his father-in-law. Henry of Huntington. "Lea. ann. as Lea suggests. but the secret of his death is more reasonably ac- counted for.TRIAL BY ORDEAL." supra. whether he poisoned or when Godwin put it in his mouth and swallowed he was suffocated by it and fell down dead.. ann. 1054. for. cap. 1053. 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. and. of Malmesbury. "Superstition and Force. 161 premeditated or not. 1053.^^ it is hard to accept this superstitious explanation for the end of old Duke GodIn this age of scepticism win. ann. Wm. the wife of King Lothair. and his desire to cast off the tutelage in which he was held. it.) p. Lib. 13. to account for the Duke's sudden demise. II. 1054.®* We find that the ordeal was utilized in France. it." (3 ed. Matthew of Westminster. . great-grandson of Charlemagne. in the tenth century in the notable case of Teutberga. ann. Edward the Confessor. on the theory of Boccascio 's story of Calen Drino. "Superstition and Force. in and rid himself of a hated enemy. where the expected miracle was brought about by the secret mixture of aloes in the bread of the cors- ned. 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. Lea.

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

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

164 TRIAL BY OEDEAL. the supposed witch carried it six paces and offered to hold it still longer." supra. therefore let him purge himself by the judgment of water. in 1484. She denies it. 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. Stephen's "Criminal Procedure. in Europe. The Count "Palgrave's "Proofs and Illustrations. because he fled for his death. Although sentenced to carry the hot iron only six paces. 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. The Inquisitor Sprenger tried before the cites the case of a witch. to further the cause of the sorcerers. if required. even though the test of the ordeal favored their innocence of the charge. till Andrew During the witchcraft craze. 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. even this by It supposed infallible test of the judgment of God. but as she is ill. ."®* spited. the ordeal of fire and water was frequently invoked by the accused persons. of Bureweston is suspected by the jurors of the death of one Hervicus. after suffering untold tortures." clxxxv. to clear themselves of the charge. Let her purge herself by the judgment of fire. let her be reshe gets well. because she was at the place where Eainalda de Henchenhe was killed and because she was killed by her help and consent. Count of Furstenberg.

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

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

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

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

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

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

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. TEIAIi BY OEDEAL. but in our own time.. . we have spiritualism and other similar protests against rationalism and reason. so we are not yet in a position to condemn. the correctness of a given decision. our older brothers of the day of trials by ordeal. We have elevated the standards of the judicial system somewhat. 171 by man made laws. instead of further establishing the independence of the judiciary. are favorable to submitting to popular vote. in unmeasured terms. since that period. a large number of people.

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

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

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

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

iv. p. c. 179. 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. sec. refusing to plead before the justices at the King's suit. Reeve's History English Law. 11. This view is shared by Reeves.* However this may be. we find that during the reign of Henry IV. or limited. p.^" of merely being fastened dowTi ' ' statute West." for these alone. "Brltton. ." that the act called for. before the enactment of this statute. were to have the "strong and hard punishment. 178. peine forte this statute. the first statute. 29.^ and the statute in merely providing for an imprisonment forte et dure. apwho were "openly name. and the third year of King Edward I. 2 Inst." of evil Edward I. II. of forcing these obdurate offenders to consent to be tried. according to the custom then obtaining. desired end. As before seen. passed during the reign of plied only to "notorious felons. 423. 1. 33. but not sufficiently described. fol. lib. c. et dure owed its existence alone to states but Sir Edward Coke that the punishment was assessed at common law. 424. and the punishment did not owe its existence to this statute. and the proceedings detailed by Fleta and Britton.176 PEINE POETE ET DURE. 1. Fleta. c. Reeve's History Englisli Law. touching upon this punishment.. 12 . the mild punishment provided for by the statute of Edward I. 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. °II. or perhaps from the time of Bracton. was declaratory of an existing punishment assessed by the common law.

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

"Whether justly or unjustly. Foedera. Harvard Law Review. sophical phase of the subject remedy was but upon this philoif we are not concerned. 154. 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. 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. wealth. arose during this period. but took such course as seemed best suited to the individual 31. . he was to be safely kept in prison. 265.^^ It was decided that although the prisoner was charged with the gravest kind of a felony. ''II. II. when the reign first eyre of Henry Ill's was in session. but the imprisonment was not to endanger life or limb. and the details of assessing the punishment to be inflicted was left wholly to the discretion of the justices. V. i. 650. 650. sec. No suggestion was made of attempting to compel the submission to a trial. Palgrave. p. with the object of compelling a respect for the law. or not really worse than the disease.^* of the statute I. In the year 1219.178 It PEnSTE FOETE ET DURE. p. CommonThayer. p. Pollock and Maitland's History English Law. this species of punishment obtained for three centuries and a half in the English criminal law and a great many concrete cases. illustrat- ing the application of the custom. Pollock and Maitland's History English Law. And it is interesting to note how the punish- ment was made more severe with the increasing prevalency of the offense. 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.. 5. 207. "Leges Henri.

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

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

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

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

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. after the death of this good woman. Strange. Anthony Arrowsmith stood mute and refused to plead to the charge of felony." "Surtee's History of Durham. sharp stone procedure did not follow immediately. have mercy upon me. 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. She gave but a single cry and exclaimed: "Jesu. 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. is it not. 32. were placed upon the door. and was accordingly pressed to' death. . 271. so was crossed by the taunts and gibes until finally the weights of the vulgar mob. as a result of the aroused and outraged public feeling. Jesu. 1910. Watt's "The Law's vol. p. Jesu. PEINE FORTE ET DURE. that the death knell of this hideous and crue! A large.^^ ^Law Notes. posts.— . with a handkerchief on her face a door was laid upon her body and her hands were bound by Fawcett to two . p. in the usual manner. ill. in a realm where such Satanic tyranny and intolerable cruelty are unknown."^" Let us hope that with the wail of this lost soul the weeping Christ made room for the misguided martyr. May. Lumber Room. 183 She was placed flat upon the ground on her back. 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. in 1598. had been placed under her back.

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

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

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

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

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

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

402. 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. has been adopted most of the United States and the cases arising under these statutes illustrate the beneficence of the in new procedure. even though he stood mute and refused to enter his formal plea. by verdict or confession. This latter statute. 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. vs. "I. c.^^ in the In Commonwealth year 1804. in the year 1827 by the more humane ' rule. should be convicted. Mass. that upon a failure or refusal of the defendant in a felony charge to plead to the indictment. .^'^ in the year 1812. the defendant was arraigned upon a charge of larceny and "1 and "9 8 George III.. This procedure was again changed in England. 103. or by Act of God. the court remanded him to jail. the same as if he had been regularly convicted.190 PEINE FORTE ET DUEE. Moore. Braley. Mass. 28. In Commonwealth vs. felony or piracy. 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. in substance. ' a plea of not guilty should be entered for the person accused. "^^ and he was thus given the benefit of the legal presumption of innocence.

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

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

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

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

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

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

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

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

but in due course of time. 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. 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 . and Maitland's History English Law. "Superstition and Force." (3." 23.^^ in the seventh century. the oath-helpers were necessarily kins- men of the defendant. 16. in all criminal cases. "Superstition and Force. his kinsmen were vitally interested in and it is but natural that they proffered their help as oath-helpers for him. With the family as a unit. Lea. 600. 600. Pollock and Maitland's History English Law. It was also a p.^^ By the laws of Wihtraed. for the defendant to select from the nominees of the injured person. note. and a case is recorded. but it was soon abolished as too onerous a task for an accused person.WAGBK OP LAW. except that instead of swearing merely to the good reputation of the defendant.) Wibtraed. II. . to defend him by their oaths. 636. •II. where this was required. ed. in Leicester." such as we see today. as late as 1277.) 35. 21. Pollock and Maitland's History English Law. "Laws (3 ed. " II. Pollock his compurgators custom for a long time. cap." When a person was his acquittal accused of a crime sufficient to result in a blood-feud. "Lea. 199 There is authority for the proposition that in the earliest times. the relatives alone were not required and the compurgators rather assumed the character of disinterested "character witnesses.*' 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.

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

fol. such as waste. as a physical condition. in actions by tenants. pi. 741. '•'Note Book. 572. pi. which could be observed. the oath of pi. 366a. 477. ='Note Book." And he states that the tenant could not wage his law by means of an attorney. but was allowed to urge this plea. 742. Bracton. 410a.^" In Bracton 's day. 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 . fol. by any man. however. 396. "Ante idem. pi. provided they were trustworthy citizens/^ and. nor if he failed in waging it. Note Book. 7. 1097. 410a. 731. personally. "Bracton. 156. for if compurgation were allowed in such "Bracton. constituted for that purpose. . only by and through himself. pi. ^'^ cases. he states that the land was not to be taken out of the tenant's possession before the tenant had waged his law. 201 Bracton advises us that it was not necessary that the compurgators should be of the same rank as the principal.WAGER OP LAW. Note Book.^* and during this period it was even allowed by way of defense in an action of trespass. 366.^^ According to Bracton.^^ that the defendant had not wrongfully detained or distrained the plaintiff's cattle or other animals. "Bracton. 1436.^^ that the defendant was not guilty of a breach of a covenant . =' Somersetshire Pleas.^^ that a defendant had of defense and it not deprived a guardian of the lawful possession of his ward. treating of the when wager of law. compurgation was not allowed to dispute evidence of offenses which were apparent to the senses.

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

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

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

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

VI. 4. It was recognized in actions of debt and detinue*^ and in the action of account. this would so far deprive the plaintiff of his option of furnishing the board and lodging. we find the cases in which wager of law was allowed still open to much discussion. as to make him a " *' III. Heeve's History English Law. Reeve's History English Law. 567. c.*^ 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. p. III. "28 Henry . VI. Reeve's History English Law..** 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. 568.206 WAGEE OF LAW. near the end of the reign of Henry VI. "III. where the wager was held to obtain. By the time of Henry VT. if the plaintiff had it in his power to furnish the board or lodging at his own volition and not upon compulsion.** accordingly as the account was found to be an account stated in the presence of auditors. 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. 18. or an account not taken in the presence of auditors.. that wager of law would lie in an action for board and lodging. xviii. " 39 Henry 24. "14 Henry VL.*® A ing defendant sued upon a debt for board and lodg- was denied his law. decided. in which case it was not allowed. This was by virtue of a statute of the reign of Henry IV.*'' but Justices Priscott and Needham.

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

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

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

or his men.*^ In the thirteenth century the earl of Warenne. to clear himself with the oaths of two bishops and three abbots or monks.." (3 ed. that the deed was not done with malice aforethought.) 57. when accused of simony. rendered to their un- fortunate companion. 61. a course that was followed by the accused. but under the heat of passion and under such rule then obtaining. the bishop of Trent. slew Alan de la Zouche. "Superstitiott and Force. in the presence of the king's justices. the issue was by the oath of bishop Hubert. or in contempt of the king. p. 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.^* Compurgation was. cleared themselves of the charges filed against them. in regard to the monastery of Westbury. and settled abbot of Berkeley. was ordered by Pope Innocent II. supported by fifty priests. "Ante idem. I. according to the by the oaths of twenty-five knights. "Lea. his by own oath. ConcU. 335.210 WAGER OP LAW. to the complete satisfaction of his superiors in the church. when accused of simony. 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. indeed. or other irregularities. in "Westminster Hall. to escape He was allowed with his compurgators' aid. tlie bishop of Worcester. for many centuries the common procedure whereby Churchmen.®^ Again. . ten deacons and a hundred and fifty other clerks and ecclesiastics. supported "Spelman.

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

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

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.




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

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

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

and although it was generally consistent with the scholastic methods of thought that dominated the civilization's (223) . striking. procedure of our day. than reading the history of some of the unequal and unjust privileges and exemptions which that occupied the time of courts centuries. imtil a comparatively recent date. Benefit or Clebgy. for it • represents the best thought of the brightest minds of most progressive people. however. is today with the agitait tion for the betterment of our remedial procedure. 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. before the evolution of our civilization own had made the present ideals possible. Its rules and doctrines were formed. to contemplate some of the customs and pleas that were followed and enforced by our courts. The contrast is indeed when we turn from the just ideals of equality and justice that characterize the remedial.CHAPTEE Engrossed as the profession will VIII. during the middle ages. 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. Nothing is calculated to encourage obtained in the administration of the English law. sometimes prove profitable to turn aside from the progress of our twentieth century procedure and entering the musty lumber-room of the law.

at the same time. or privilegium clericale. thinking world of that period and for the most part. that frequently were nothing but mere fantastic quibbles. the plea was and judicial England and the United States. it was in thorough accord with proper and just ideals. 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. The benefit of clergy. who. Of course such an exemption of a favored class was inconsistent with the object of distributive justice. to visit equal punishment upon all alike who are similarly sit- uated and with the elevation of the standards of justice and equality. . but the privilege was later extended by the law to all who could read. 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. of one of the old special privileges of a favored class. 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. or clerks. yet. as an incident and high prerogative of their ofiSce.224 BENEFIT OF CLEEGT. Originally the persons of clergymen alone were held to be exempt from criminal process before a secular judge. The benefit of clery is an illustration of the engraftment upon this enlightened system of jurisprudence. as all such were held to be clerica.

The growth and development of the privilege is an interesting chapter in the history of the controversy between the secular and spiritual power. the clergy took a very active part in the legislation and judicial branches of common law. over matters temporal. fol. the ecclesiastical power had the ascendency. 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. . XII. for the entire ex- emption of their order from the jurisdiction of the common law courts of England. during the middle ages and the limitation or expansion of the authority of the State or the Church. During the Saxon period of superstition and ignorance. 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. at a very early period.BENEFIT OF CLEEGY. 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. 409. 225 The privilege had its origin in a claim made by the ecclesiastics. 'Bracton.. but tion it gradually declined. 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. Ch. as intellect and educabecame the common property of the masses. for many centuries. in government and they shaped the policies of the governmany important respects. ment.

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

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

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

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

if clergy were refused. he was by Fortes- cue. >» 9 Edward IV. delivered the book to the prisoner and the prisoner did not look at the book at non-legit. the cause was certified to Bench. "legit or The court then bid the clerk of assizes not to record that the prisoner read. read.^^ And during the same reign. and fined the bishop's clerk for so finding.^® if the In the reign of Edward IV. II. as where he had not the tonsura clericalis or ornamentum clericale.) . for the prisoner could spell and thus put if the clerk syllables together. was able to read. Reeve's History English Law. 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. Kelying reports a case." all. to be entitled to his clergy. and the ordinary was fined. ordinary refused a man his clergy. the ordinary was fined and enjoined to receive the felon. on the theory that he was only a minister of the secular court and not a judge in the cause. was not held. the prisoner claimed his clergy. upon his arraignment. but if a cause were stated which could not be allowed by the law of the land. 28. if the ordinary granted clergy to a felon who could not read. pp. Littleton said that refused generally to read. "quod legit ut clericus. secular authorities. where at the Lent Assizes. " IV. 198. ideo tradator ordinario" and if the ordinary granted clergy to one or refused it to one qualified. 197. who could not he was fined. for Winchester. p. he was denied his clergy. for they made the record. charged with larceny.230 BENEFIT OF CLERGY. 59. the clerk appointed by the bishop to give clergy for the prisoners.. But the qualification as to reading if strictly applied at this period.^^ During the reign of Edward IV. (18 Car'. but this was deemed "III." the clerk reiplied "legit. but when asked. Reeve's History English Law.

. he was required convicted. Sir John forfeited. during the reign of Henry VI. 60. 2 Inst. near the end of the reign of Queen Elizabeth. 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. "Littleton. was hanged. lowed.BENEFIT OF CLERGY.^'* The burning in the hand. Henry VII. it was decided. it during was enacted that the prisoner should not be delivered until he had been burned in the hand. was not ordained by the statute (IV. the prisoner could not be discharged until the reign of Elizabeth (18 Elizabeth). so that such persons might not have their privilege more than once. on a subsequent arraignment of the offender. and in Biggen's case. which was a necessary part of the procedure of the privilege of clergy.) as a punish- ment. Law. but unless she had done so. Common Pleas Court. which the other practice denied to the crown and hence. 164. to ascertain if the defend- ant had been accorded his clergy. Chief Justice of the if he could not read. IV." it was afterwards generally fol- It was customary to keep a register of clerks-convict and persons attainted. 466. and his estate was Priscott. that the Queen could pardon the burning in the hand. By statute. if crown took his estate by forfeiture and he was then allowed his clergy. changed the practice and when the felon claimed his clergy. ''"IV. 231 prejudicial to the prisoner. Reeve's History Bnglisli p. on arraignment. p. but merely to enable the 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. notwithstanding the statute referred to. Reeve's History English Law.

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

I. p. it was enacted that a clerk. Pollock and Maitland's History English Law. (5 Ired. 401b. to the court Christian. C. that during the reign of Henry III.^* be urged the was granted to him. " II.^* While the exemption to the clerks of the twelfth century was much broader than ton's later. to make canonical purgation and to estab- lish his innocence or stand convicted.BENEFIT OP CLERGY.. .) 139. 421. case. was to be immeclerks could be tried for all diately delivered. the practice estab- state vs. was brought up for judgment on the ' ' The distinction between clergyable ' ' and ' ' unclergy- able" crimes was not so clearly defined during the thirteenth century. Carroll. if demanded by the ordinary.^" During the reign of Edward '" ''* I. 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. II. -' Bracton. Reeve's History English Law. during the thirteenth century minor offenses and in Bracday clerks were answerable to civil process the same as the laity . as at a later period. 130.^^ The clergy had so far established the exemption of their persons from corporal pains. 501. pp. 233 The judgment of tlie court. 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. in Stone's case. same as a pardon. Pollock and Maitland's History ETnglish Law. or for any other crime. p. f. 27 N. 422. taken for the death of a man. without inquisition.

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

robbery.^" Henry VIII. so that real clerks were subjected to capital punishment for felony. however. IV. pp. shall ' not be admitted to clergy.^" By 27 Henry 17. where grain or corn was stored. =° . after conviction of the offenses named. p. child or servant being then therein. and this was a serious blow to the exemption. Reeve's History English Law. his wife. It was also made a felony.^^ During the same reign. 468.. without clergy. 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. and the like privilege was denied to the abettors. 466. 1). 1. Reeve's History English Law. p. and during the same reign another statute was passed (23 Henry VIII.. c. and put in fear or dread. by statute 33 463. wilful burning of a dwelling house. helpers. for though the lives of the clergy were spared. Reeve's History English Law. or barn. " IV. Henry "IV. stood firm. except only such as were within the holy orders. taking away the benefit of clergy from persons convicted of petit treason. "way. the same as nominal clerks. maintainers or counselors of such felons. or rob or 235 murder any person in Ms house. for a clerk convict to break prison and escape. persons under holy orders were to be judged the same as those not under holy orders. clergy was also taken away from servants who embezzled their master's goods or property. yet they were to be condemned VIII. and by 28 Henry VIII..' BENEFIT OP CLERGY. the owner or dweller of the house. wilful. c. if the ordinary so directed. to imprisonment and even to death. malicious murder. c. 458.

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

when Cardinal Wolsey threw himself at the king's feet and beseeched him to withhold his decision until the Pope could be heard from. therefore.: BENEFIT OF CLEKGT. Kielw. 237 advocacy of tlie power of the temporal courts over the persons and punishment of clerks." referred to the believers. . in as ample a manner as our predecessors have done before us. as well in this point as in others. = IV. in the words. 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. King Henry. to distinguish them from the unbelievers. and. 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."^^ 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. 180b. the clergy contending that the benefit of clergy was established by the express command of Jesus Christ. 462. we are king of England. pp. not of the Saviour and that the "anointed. Reeve's History English Law. that he enof Doctor Horsey. 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. know that we will maintain the right of our crown and temporal jurisdiction. and the kings of England who have gone before us never had any superior but God alone. however. then abroad in Palestine. 458. of charge from the rescued from temporal power. however. King David. nolite tangere Christos meos. to 185b.

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. in a duel. until the popular clamor had subsided. to 185b. IV. 463. at Shordiche. . was the gifted Ben Jonson. of the depth of six inches and of the bredth of one inch. Reeive's History English Law. it was confessed and the defendant was discharged. in the case of Doctor Horsey. in and upon the same Gabriel's right side a mortal wound. the friend of "gentle Shakes- peare" and the scholarly Lord Bacon. 1598. p. Reeve's History English Law. 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. of the true foundation of of Doctor Standish. ^''Keilw. The indictment charged that the defendant.238 BENEFIT OF CLEEGY. pp. in the case lost none of its authorit}' the temporal courts. He was arraigned at the Old Bailey. "with a certain sword of iron and steel called a rapiour.. in England. for the manslaughter of Gabriel Spencer.^^ Although the clergy thus failed VIII. joyed the free custody of the house of the Archbishop of Canterbury." One of the most distinguished men known to have been accorded the benefit of clergy. it to convince Henry against its power. 180b. giving to the same Gabriel Spencer. of the price of 3s. which he then and there had in his right hand and held drawn. tain cases. in cerof this king's reign. 458. had. in October. " IV. 462.

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

In the year 1806 the Supreme Court of North Carolina held that females could claim the benefit of clergy.*'^ had before had clergy.) see.** held that corporal punishment and imprisonment could not both be inflicted upon a person found guilty of the crime of manslaughter. 276. the And Carolina held that creating the offense. And State vs. Law.""^ the same court held that when the defendant prayed the benefit of clergy. 8 187. Car. unless it was expressly taken away by the statute in the year 1855. it was discretionary with the trial court to dispense with the burning in the hand. Hawks.*" And in State vs.240 BENEFIT OF CLEEGT. the privilege of clergy was an incident thereto. * 11 8 No Car. up by a plea in writing. . construing this statute. having. Rich. (1 147. Car. In 1837. 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. convicted of burning a *» state vs. Bosse. 1855. "4 Suab. " 24 No. Supreme Court of North when a new felony was created by statute. 53. a defendant. in dwelling Murph. 257. Gray. Hawks. in the case of State vs. 372. 5 No. 4 No. 1 " State vs. however. Car. 2 Ired. in 1816 passed a statute abolishing the punishment of "burning in the hand" for clergyable felonies. in 1825. Carroll. Yeater. in granting the benefit of clergy. the same as males. also. Kearney. that on a conviction for bigamy. decided in South Carolina. Sutcliff. for a clergyable offense. if the State objected because the defendant this objection must be set In State vs.*^ The Legislature of North Caro- lina. the Supreme Court of that state.

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

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

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

three "on this side of Jordan" and three "in the land of Canaan.CHAPTER The IX. and hated him not in times past. taking refuge in certain consecrated places. then I will appoint thee a place whither he shall flee. there were cities of refuge to which a felon might flee. written: "And if a man lie not in wait." (xxxv." in order that the slayer might flee thither which should kill his neighbour unawares." Moses' law thus distinguished between murder on malice aforethought and mere manslaughter. and that fleeing to one of these cities. Moses appointed six cities of refuge. shall it is be surely put to death. from the ordinary operation of the law of arrest. 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. Privilege of Sanctuaey. as call it we and according killed a to the ancient law of the Israelites. was the exemption afforded criminals." but in the same book. so that he die. sometimes called the priv- ilege of asylum. but God deliver him into his hand."i ' The six cities appointed in the boolt of "killeth Numhers were only for those who (244) any person unawares. who man unawares. In the book of Exodus the old Mosaic law was stated to be: "He that smiteth a man. he might live. privilege of sanctuary.) .

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

As recorded in the book of Joshua. 50.® "1. in his palace him . 1896. The Green Bag. XX. as a protection against the supposed of Solomon. 'Joshua. VIII. the elders tried his case. of his eldest son. however. The conditions upon which sanctuary was bestowed. 5. vol. The ever-flow- ing flood of time has swept away all records of the ordi- nary mortals. one claiming sanctuary must stand at the gate of the city and "declare his cause in the ears of the elders"^. on o£ tlie death. the great public grief was supposed to over-shadow all merely private affairs. at the altar. This case of Adonijah taking refuge in the temple." who acted as prosecutor. if the unwritten history of the unnoticed millions of patriarchial days could be known. and if the case of murder was established by the "avenger of blood.. for on this solemn occasion. even though he clung to the altar.246 PRIVILEGE OF SANCTUARY. wrath more nor less than a claim of sanctuary. Kings. the criminal was given up. p. to ascertain if he were guilty of malicious murder. or mere manslaughter. Nimrod. 51. erected a golden statue and ordained that all criminals fleeing thither should be protected and this was a species of sanctuary. for the right of sanctuary obtained generally in those ancient days. 4. 422. 1. is nothing This is only one of many thousand similar concrete eases that could be mentioned. 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.. and only the great peer out through the darkness of the past. no doubt. 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.

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

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

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

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

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

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

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

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

if they transgressed upon the sacred consecrated to the Lord and tection of criminals. granted by Edward I. and claimed protection from the civil authorities for a crime he had committed. this 255 my graunt endure as long as there remaineth in England. chartered by the Croitm. and Fleet street and the river Carmelites. that the red handed murderer. It is well for the race that such delusions have passed away. when he once reached the sacred precincts of the church's domain.PRIVILEGE OF SANCTUAET."^* So essential was it then regarded to maintain. upon a plot of ground. or Alsatia. Many =" Ante idem. . 171. even. along with the delusions of witchcraft and other fanaticisms of that age. used also for the pro- were classed along with traitors to the Lord and a dire curse proclaimed against them. regardless of the enormity of his crime. if a man fled to any one of the many sanctuaries. at all hazards. ^'Chamber's Journal. The Whitefriars. p. the pax ecclesiae. he could remain there undisturbed. on Fleet street. because he thus placed his faith in a higher law and the mundane officers of the law. either love or dread of Christian name. for attempting to preserve the peace soil of the realm. located between what is now Salisbury street and the Temple. was to be protected from the mere temporal powers of the earth. an establishment of the was founded by Sir Patrick Grey. Thames. Vol. in the year 1241.29 According to the law. for life and was not obliged to make his abjuration of the realm. as it finally developed. 44. as he was required to do in case the asylum was not such a chartered institution.

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

escaping from prison. 253. 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. 255.** he could be dragged from the sanctuary and was not exempt from that period has said: general sanctuaries and in distinguishing the two. or burglary. a historian of such a sanctuary as Westminster Knoll. 257 The class of criminals who sought protection under the right of sanctuary. ordained as a refuge. "Ante idem. of Henry VII. But the reading lays down a strange quibble to evade this. receiving stolen goods. IV. but if he chose to abjure within the forty days. or the like and not for debt. But if he failed to make such a general declacivil process. for a grant or prescription to have sanctuary for debt was against law and void. Reeve's History English Law. as for treason. p. before the coroner came.. debt. he who took it for sanctuary should still enjoy It for forty days and abjuration for felony. horse and cattle stealing. he for life. and safeguard for a man's life. however.PRIVILEGE OF SANCTUABT. housebreaking. for it admits. it was decreed that it when an offender fled to sanctuary. "If a fled to man might remain undisturbed " 3 Henry VII. included the whole gamut of crimes know:n to English law. discharged all felonies done before the abjuration. larceny and the other crimes common statute. . and he escaped. he should have benefit thereof. rape.^^ ration." IV. It a church was suspended for bloodshed. the coroner was to appoint him a day to do i:. for him to declare that he came there was not enough to save his life. but he must add that he had committed a felony. and came to a sanctuary. murder or homicide. or existing at During the reign in the realm and made so by common law. that if a man's body was in execution. felony. Reeve's History English Law. counterfeiting. treason. A man could not abjure for petit larceny. harbouring a thief. 12 . but only for such felonies as Induced the pain of death. though he need not specify the felony. iecause ty long imprisonment his life might lie in jeopardy.

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

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

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

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

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

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

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

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

ante idem. 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. for protection realm. with its precincts. a sanctuary for debtors in the abbey and palace of Holyrood. in fact it has ceased to be a necessary legal exemption. in and 1504.*''^ In 1487 Pope Innocent VIII authorized the arrest of left the sanctuary. rob- bery or other felony. at the places noted. while it obtained in England and Scotland gave rise to considerable legislation and litigation. 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. since the repeal of this law. though they sought the sanctuary. p. 515. 64.. 64. and Julius 1493. idem. including the hill of Arthur's Seat and the Queen's Park. but in isted in most recent times. 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." The privilege of sanctuary. in the middle ages. in 1880. Vol. 170. in affording too easy an immunity for crime. " Chamber's Journal. II. The Scoth law of sanctuary was more guarded than this country. 171. 515. Imprisonment for debt was abolished in Scotland. * This bull was confirmed by Alexander VI. to commit murder. Vol. in the year 1421. Vol. p.266 PEIVILEGB OP SANCTUAET. there ex- the English. . from trial for the murder of John de Melvil of Grienbervie. 44.*® ^"Chamber's Journal. Arbuthnot and his accomplices.

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

26. whose names com- mence with other legal reference. churchyards. however. Both while the practice of sanctuary obtained and years after furnished a it passed away. and other writers. Shadwell. hospitals and college churches and of the first acts of all dedicated chapels. by Henry VJIl.268 PRIVILEGE OF SANCTUARY. One James when he began to rule over England. letters of the alphabet. as to widow of Edward IV when they had committed no crimes and the son had done nothing to entitle him to sanctuary. the institution for theme popular authors to weave romances around and Shakespeare.^^ was abrogated for good. in England. say. and the right of sanctuary was also confined. the same monarch for all finally abolished the right of sanctuary kinds of crime."^ Various precincts continued to afford shelter for criminals.. was to further abridge the right of sanctuary and twenty years afterward in 1624. to parish churches. "S & William IV. Sir Walter Scott. c. Leave their lodging except between sunrise and sunset.. however. James 9 c. an attractive source of In describing the argument before the Council. Shakespeare makes Buckingham the right of Queen Elizabeth. the and her son. to claim sanctuary. long after the I. 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. cathedrals. in and about London. I. have found the ancient law of sanctuary. 28. in "^21 Richard III: I. .

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

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. 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. the old knockers on the sanctuary doors were most welcome pursued by the howling mob. in referring to sanctuary. old sanctuaries of the middle ages and with . that the public were about ready for the final repeal of the law. bent and fearful. speaks of it as a "rotten privilege" that could not stay the hatred of Aufidius for Marcius. and the ancient law of sanctuary. In our imagination we can see the cringing murderer. by King James. ever alive to the popular views of his audiences. 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. for the life blood of the criminal. like a hunted stag. sights to the fearful criminal. so the gifted Shakespeare. when the "avenger of blood" was abroad in the land and men. like wolves. clamored. away by the current The necessity for such a custom has long ceased to exist. followed by his blood-thirsty pursuers. in the ever flowing flood of time. carried of the centuries. felt. as he hurries through the black browed night. This old institution has passed away forever. fleeing for the blessed portals of the sacred places. fed upon the delusions that were rampant. as he clung to the ancient "frith-stool" that for untold centuries had afforded protection to criminals from the vengence of the pursuer. but in the dim past.270 PRIVILEGE OF SANCTUARY.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

in England. II. 427.*^ Shakespeare makes the indignant Paulina. pi. "IV. c. i. her reproachful speech to the Lords. 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. p. Under the reign of this monarch. 285 During the thirteentli century. Gildh. could be brought to consent to such unusual and cruel punishment for any crime. 101. p. This statute was passed in 1531. The enormity of the crime caused wide-spread indignation and such crimes were to attainder. should be high treason and that all such offenders should be boiled to death. every wilful murder by poisoning. refer to this statute. Reeve's History English Law. . 191. 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. " 22 Henry VIII.ANCIENT PUNISHMENTS. 511. Cr. 9. seventeen persons in the family of the Bishop and others of his friends were poisoned. was also provided by the act that henceforth. the usual punishment for petty treason was hanging and drawing for a man and burning for a woman.*^ was a punishment provided for poisoners. Munim. in "Select PI. if not for such barbarous punishin a vessel ment as this act provided. the inhuman crime which brought about this harsh statute was such as to call for unusual handling. Pollock and Maitland's History English Law.** Boiling in oil during the reign of Henry VIII. 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.




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.

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

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

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

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

such was the religious zeal with which they were all three sustained in this act of martyrdom. . was a punishment inflicted 46. illustrates the barbarous cruelty then obtaining as to this class of criminals. all favorites with the crowd.ANCIENT PUNISHMENTS. in London. in thus pillorying recognize. in the Palace Yard. who strewed flowers and nose-gays around them. ton. but the officer the stern old Puritan endured it without a groan. so as to injure him the least and asked him to lop them close. that it might not be necessary for him "to come there again. in the year 1637." Prynne had had his ears roughly cropped off three years before and when the officer again attempted to remove what remained. Brandmg with a hot iron. 297 the seventeentli century and the notable case of Bastwick. 373. "Gentleman's Magazine. After the fearful ordeal was completed they were all three returned by the officer to the prison. it gave him great pain. Vol. 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. The prisoners were place of execution. Bastwick loaned his own knife to and made use of his professional information to advise him just how to remove his ears. who had their ears removed one time. all at Burton and Prynne.®^ 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.

land was a 138. It has not been in use for years. except in desertions from the army or navy. The iron used had the form which it was desired to leave on the culprit's skin."" ing was inflicted as a punishment for adultery or fornication.. this or other material the is used. 1.298 ANCIENT PUNISHMENTS. in the western country. to identify the animal.®'' the hand. in England. c. when burn- result of their misdeed. of was provided "On the " Rawllnson's Anc. of Bible. but this was not in accordance with the Mosaic law. with a letter "H" for Heretic. class of criminals by the Persians. 28. 35. and this form of branding is regulated by statute and of late years ink. instead of a hot iron. was a mode of punishment used for various offenses. but law was repealed in 1829. In the middle ages. (Alice Morse Earle's "Curious Punishments of By-Gone Days. of all clergyable crimes. " Hastings Diet.®^ much as horses are branded by the owner. as a Slaves were sometimes branded on mark of shame. branding with a hot iron. 194." pp. »» Leviticus. 9. sec. who were branded with red hot iron.ioo it By Mutiny Act. »» Isaiah. XIX.) . 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. p.®* Formerly. in England. XLIV. Mon. Branding was used by tbe American Colonists and In New Engcommon punishment for Quakers.. branding was used in the case by burning in the hand. for such disfigurement was forbidden by the code of the old Israelites. by the ancient Jews. on the shoulder. ""21 Victoria. ii. 5. 148. upon the identified who were deported. 1858. 523. branding on the forehead was also used.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

either at the instance of the king. Reeve's History English Law.314 thereto. IIL Reeve's History English Law. in the gradual processes of time. the courts learned in the law. III. I. in after-times.^* Having thus assumed the entering the jurisdiction over the es- tates of deceased persons. . the bishop exercised practically the same author- ity that the probate judge exercises under our law. 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. 313. instead of those concerned only about spiritual affairs. giving the justices of the king's court juris- and oppressions. when the statute of 31 diction to enquire into such exactions Edward III. p. by this statute. ^ ^' =' Reeve's History English Law. 314. assumed larger control and jurisdiction over the estates of decedents. pro WILLS. in the granting of letters of administration. QUAINT AND CURIOUS. anima ejus?^ The church seemed best suited to make this division. further than to mention the custom. 215. was enacted. or that of the injured person. p. in certain boroughs. 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. which was wedge to oust the jurisdiction of the eccle- siastical courts. the listing '"I. 125. While the church retained control over the estates of decedents. from which the custom of issuing letters of administration no doubt tate's soul letters arose.^'' 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.

p. book. 124. others." " II. is that of King Henry 11. had executors. 315 and inventorying of the property and the accounting by the trustee to the ordinary. 123. . in the year 1182 in the presence of ten wit- among whom we note the name of Ranulf Grlan- ville. the may be said to first legally assume the dignity analogous to our present testamentary devise. 334. Pollock and Maitland's History English Law. the legacies were The will. his justiciar. nesses. 335. " IV. "II. 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. . however. no doubt because for pious purposes.^^ made at Waltham. the clergy.^" From the delegation of the trust to some personal friend to carry out the will of the decedent.'* for one set of the trustees looked after the English behests . " Nicholas' "Testamenta Vetusta. that the older books refer to. granting the letters of administration. QUAINT AND CURIOUS. pp. were charged with the distribution of a fund to be expended in providing marriages for poor free women. another set after the Norman legacies .^* One of the earliest wills. 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. 335. 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. Reeve's History English Law.WILLS. Pollock and Maltland's History English Law. in compelling fidelity in the performance of the trust. with executors.




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,


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

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

'*'' evidences first The the Poet's firm belief in Jesus Christ and the "life everlasting. see by Mary A. John Hall.®* 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". is finally established by the fact that he made them his executors and trustees. until 1709. with the furniture. his good-fellowship and love for his friends by the many legacies for rings for his different friends his indifference toward his wife. which lacked the attribute of property. . "Shakespeare and Prayer. 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. along with the many other prayers and Bible references which he places in the mouths of his characters in the plays. QUAINT AND CURIOUS.®^ The wills of the statesmen and patriots of the past "'For collection of the the interesting hook many beautiful prayers in the plays. 305. nieces and nephews and his trust and confidence in his daughter. in law. pp. Chicago. and her husband." Harris. 5.. Ancient Wills." while all his landed acquisitions. his benovolence . Susanna Hall. 309. 325 paragraph of his will. with his gold and silver plate and other property were distributed among his sisters. in England." In the entailment of his real estate to the bodily heirs male of his daughters. »» ™ White's "Law in Shakespeare. daughters. Wadsworth.WILLS." by The Welch Publishing Co. family. by the fact that he only left her his "second best bed. p. recognized the futility of any attempted disposal of his literary productions.

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

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

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

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

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

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

he devises the imaginary world. . the golden sands and waters of the brooks. QUAINT AND CURIOUS. 64. at night. p." published in Harper's Weekly. may have suggested to Mr. writers." to good fathers and mothers. and to those with snowy crowns he leaves the happiness of old age. 49. liston This bequest of Francois Villon. to lovers. until they wall. the banks of brooks. to wonder at. a century ago "We consign our possessions to our next of kin. in his recent work. As Hazlitt said. the "Insane Man's Will. Gallants. the poems of Burns and Shakespeare and other poets. 'Tls known his all he gave away. he bequeaths the pleasures of sweet memories. the sweet strains of fall asleep. all are gone. the blossoms of the woods. as mechanically as we lean our heads on the pillow and go ='' •" Harris. with the stars in the sky. Bread. the flowers. Twelfth Night. tables. as real as life and death themselves. To those no longer children or lovers. among the bequests being "all good little words of praise and encouragement. associated with the idea of intimately connected with the ties that bind us here on earth. 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.'"" Among the wills in fiction and poetry. Ancient Wills. He taph : desired his friends to record of Mm in his epi- "Acre or furrow had he none. wherein he makes an imaginary will that has become a classic in English literature. the white clouds floating high over the giant trees and the Milky Way. Don Quixote. to children. J-n Harris. collated by Mr. with the love and gratitude of their children. the red roses by the figure to each other the lastingness music and all else by which they may and beauty of their love. WilFish of Chicago. certainties. 62. that of Dickens. subject to the rights of lovers. fie devises. tressels. in 1898. of him this Roundel say. We have always made our wills m pursuance of a natural property and inclination. George Eliot.: 332 WILLS.®" are those of Olivia. Ancient Wills. in trust for their children. Harris. pp.

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

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

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

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

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

32. 26. Edda. under. 12. 119. definition of. 17. wager of law. under Hammurabi's code. Debt. of marriage. Courts. prohibition of polyg- amy 31. sanctu- Edward. ordeals. 14. ntiptias. of Anglo-Saxons. Dowry. 31. Custom. of throwing stockings. under Roman Concubinatus. wager or law. Drowning. Definition of benefit of clergy. by fire ordeal. Mar- (note). 109. the Elder. 90. Edward. der. 44. recall 83. Custom. in. Dower. Corey. 66. throwing bouquets. 236. 254. witch- Dower. 31. under reign of Edward I. law. Curia regis. Donatio propter law. wager of law. 34. 16. punishment by. of. 152. obsolete. in early England. 198. 158. authorizing benof clergy. I. of ordeals. "Dusty-foot courts". of Roman against Constantine. 90. Concubine. Compurgators. 65. wager of law. punishment by. character Debt. 160. the Confessor. 90. definition of. 207. 165. in Athens. of throwing shoes. David's Psalms. 16. under. the Confessor. of throwing rice. Drawing and quartering. Giles. 34. Custom. 207. Congress. Concubinage. 233. Custom. Detinue. Customs. Dowry. 196. Cumanus. under. County Court. 34. cruelty of. 18. 33. as witnesses. 152. Dower. under Hammurabi. case of pressing to death. 18. 143. Dinah's proposed Shechem. Corey. in 1692. under Anglo-Saxons. Edward I. in 1299. Ducking. Elder. 48. 54. untrial by. in witch persecutions. B Ears. Descent from concubine. marriage Diocletian. 18. 187. Compurgators. Giles. 189. old in England. Crimes. 148. accusation against his mother. 141. Shakespeare's reference to law of (note). in 1790. 303. Definition of Confarreatio. song ary. case 187. ordeal by. 32. origin of. battle in trials for. in to (note). law of. witchcraft. 204. 228. 277. 90. cutting off. his marriage to guerite. punishment. 144.338 INDEX. in ancient England. punishment by. Crucifixion. Martha's trial for witchcraft. 34. Cross. 144. 32. 143. unclergyable. the Confessor. Corey. Durant. Compurgation 142. of. punishment by. References are to Pages Common pleas courts. in of. by.scourge". 143. 280. known as. 159. 31. 16. D David and Goliath. property right of progeny of. under. John. 248. efit Edward. 224. ordeal. . during 14th century. sanctuary. Constantine. by. Dower. abolished benefit of clergy. Confarreatio. 296. 90. in Edward 256. Definition of trial by ordeal. 283. Criminal cases. Confarreatio. Edward. by end of Roman Republic (note). at church door. sanctuary. in 1734. "Earthenware . Definition of wager of law. by. Corsned. Divorcement. trial for craft. 18.

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

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

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

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

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

Peine forte et dure. Peine forte et dure. S. Polygamy. 15. 452 B. 183. Peine forte et dure. in 1615. et dure. Petalism. Peine forte et dure. Preators. 179. Poetic wills. in Rome. 180. Peine forte et dure. forte et dure during Bracton's time. India. case of Walter Calverly. Peine forte et dure. case of Margaret Clitherow. Peine forte et dure. Peine forte et dure. Peine forte et dure. 187. 209. in Persia. in 16. 174. 189. Peine forte et dure. 179. dure. Perjury. 90. 180. Piepoudre courts. case of Phillips. under AngloSaxons. in in of 1215 (note). case of Giles Cory. 15.. cases of. Polygamy. case of Sir Richard Weston. Peine forte et dure. 27. Pelagius I. Pope. 186. Petalism. 180. proceeding in. in Greece. 330. judgment applied case of. will of. 186. from ISth to 18th century. definition of. marriage under. capture-marriages (note). in Turkey. 15. 186. Peine forte et dure. ordeal by. trial of judges by. 192. Peine forte et dure. in 1657. in Syracuse. case in Peine forte et dure. case of wager. 191. 34. References are to Pages Peine forte 172. 193. in 6th century. statute ana Quick. Rome. Polyandry. 195. Polygamy. Peine forte et Peine forte et dure. et dure. 333. definition Polyandry. Newgate. 175. Peine forte et dure. 310. et Peine forte 172. Polygamy. Penn. case of Burnworth. 187. Persia. 1219. 184. 180. 178. case of Anthony Arrowsmith. battle prevent. in 1720. in United States. case of John Felton. Westminster on. William's trial of witches. 173. recalled in of. 15. under Henry VII (note). case of Juli180. Phillips. in 1734. 174. definition of. origin of. 185. abolished in 1772. 16. in U. 13. case of Nathaniel Hawes. 87. in 1825. in 1827. 190. under Ed- Peine forte ward ry I. law of repealed. 179. 86. Penn. Peine forte et dure. case of Major Strangeways. Polygamy. 187. 178. 143. 193. Peine forte et dure. Peine forte dure. Political methods. 180. et dure. from Shakespeare. under Henry IV. 146. 'Peine forte et in. 62. 186. case of John Durant. case of Cecelia Rygeway. 35. law in Poland. ward Peine III. among Hebrews. established by Lamech. 15. 16. abolished by act of Congress. in 1726. 185. in 1628 (note). Peine forte et dure. 185. Peine forte et dure. 112. . 178.344 INDEX. in 1692. dure. 15. will of William. 190. 183. 177. practiced Thibet and Ceylon. of. 184. conclusions regarding. 176. Polygamy. prohibited by Diocletian. Peine forte et dure. 189. Peine forte et dure. in 1221. et Peine forte dure. 87. Polyandry. 328. established to form of marriages in. Poison. Peine forte et dure. Polygamy. Peine forte et dure. of 1720. Pericles. 184. Peine forte under Henunder Ed- III. Peine forte Plato. among Hebrews. 15. from ISth to 17th century. C. in 1721. 105. illustrations of. et dure. et dure.

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

rape of the (note). 134. 254. 249. repealed by James 268. Rome. Henry I. 126. 248. 258. under Mosaic code. 265. 13. Sanctuary. Scipio. procedure in battle under. Roman marriage exalted. . 310. 192. claimed by Queen cient. Sanctuary. and Gunnora. writ of. 138. 13. in. trials. gives origin of marriagering. Selden. Saint Louis. under Queen Mary. Sanctuary. with thorns. Sanctuary. in France. Sanctuary. Scott's "Minstrelsy of Scottish Border". Sanctuary. Shakespeare's reference to maiden-rent (note). Sennacherib. Shakespeare. Ring. by. 256. 257. 193. 68. 252. under Athelstan.of Henry IV. in Athens. 259. References are to Pages Richard. in. abjuration of realm. Sale. illustrations of peine forte et dure. Mother. under Henry by VII. Sanctuary. under Anglo-Saxons. . Sale-marriages. Roman marriage laws basis of our own. under Alfred. Sanctuary. III. persecution 56. recall known as. 244. 269. espousal S of. 250. 16. of justice in old England. Sanctuary. by. song of. Shakespeare's reference to trial by battle. Elizabeth. origin of. 166. Sabines. Sanctuary. 111. Selden. 262. 244. Scourging. mention of the gemmel ring. Richard 163. sanctuary. 57. Romans. 197. Scotland. 244. Sir Walter's references to trial by battle. Sale-marriages. how claimed. 124. 166. privilege of. Richard Sanctuary. Sale-marriages. by. under Edward the Confessor. as presented in. under Constantine. 197. under William the Conqueror. • Sanctuary. sanctuary in. sanctuary under. Sawing asunder. 36. 35. Sanctuary. Saxons. 247. curtailed VIII. Sanctuary. abolished trial by battle. at Hexham. Right. under Ina. Scotland. Saxons. 116. Sanctuary. of. in Cnut's time. wager or law. Ruth and Boaz. 251.346 INDEX. on trial by battle. in reign. 272. of. punishment 279. church. procedure of trial by battle by. 267. under Edward I. 249. 137. persecutions for witchcraft in. will of. in marriages. recall of judges an- Sanctuary. 265. Sanctuary. 62. 122. 20. 16. 87. Scott. 20. ordeal under. 247. Roman marriage a partnership relation. 16. 253. 16. 137. 259. Sanctuary. Sanctuary. recognized by Salem witch 90. by (note). in literature. ordeal of bier. 83. Roman forms of marriage. 252. in Scotland. trials 19. 33. Rome. in 1260. Selden. wager of law. under. 260. Scourge. Samuel. 30. Duke I. Shakespeare. 251. definition of. Sanctuary. 259. punisliment. 270. Sanctuary. 302. Roland. trial by battle before. Sanctuary. under. in Sanctuary. 33. 135. in Greece and Rome. 136.

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

310. of Virgil. 207. Wager of law. Will. miscellaneous cases of. under Edward VI. 309. Will. Wager of law. 301. Wager of law. compurgators in. in 1833. during Glanville's time. 209. Wills. 203. 209. . 208.348 INDEX. 144. of Aristotle. 61. 219. trial of Alice Colynbourgh. under Alfred. under Cnut. by. Wager of law. by Bracton. I"V. Wager of law. 59. 327. 320. in debt and detinue (note). punishment by of. Wills. of Chief Justice Marshall. judges under. 310. William the Conqueror. 312. Will. under Henry "VIII. abolished in England. 198. 211. Wager of law. 207. 200. Waldenses. 202. Wager of law. in 1435. Will. 53. 307. "Wager of law. 204. case of Pope Pelagius I. References are to Pages "Wager of law. in United States. 210. witches of. Welby. 206. and assize of Clarendon. 309. under. 312. 252. 212. of law. ex- posure to. Will. on peine forte et dure. under Henry "VI. 327. "Wager of law. Wills. Wager of law. plea of law wager by. William Rufus. description of. 56. 204. 207. persecution of the. Washington. 317. Will. Wills. days. in cases of Nil Westminster. of Plato. in 6th century. debit. 209. Will. on. 324. Will. abolished wager of law. in ancient Egypt. 208. 143. Wager of law. 208. 201. of law. in 1492. 208. 219. will of General. under Glanville. 279. of Sennacherib. 313. ordeal by. by. Sir Richard. Webster. 311. 213. 205. Wager 200. by oath-helpers. of General Washington. 220. sanctuary. in 1492. Will. kinds of. punishment. Will. 200. trial of churchmen by. ordeals under. Wheel. under Wlnfraed. of law. 197. 202. of John of Gaunt. of Jacob. 326. 307. 178. Water. statute of. Wager William William III. Will. Wager of law. 334. case of. Wills. Will. irrational nature of procedure in. Wills. of Katherine of Aragon. 153. 324. 310. of Wager Wager of law. ordeals. of Jeremy Bentham. Wills. of Henry II. Will. 184. under Edward IV. of William Penn. 213. Wenham. case of Gregory of Tours. case of Robert Welby. 197. Will. Wager of law. 315. 213. statute of Elizabeth on. Wager of law. Wild beasts. in 1833. of Shakespeare. under. "Wager of law. in law "Wager of law. Slade's case. in 1527 (note). Wager of law. under Edward III. in Anglo-Saxon. 318. Wager of law. observations Coke. William the Conqueror. Weston. Warbois. quaint and curious (See quaint and curious wills). 94. wager. in 1166. Wager of law. 213. in criminal cases. under Saxons. Janes' trial for witch- craft. "Waking" witches. 149. 328. Wager of law. 197. Daniel. of Benjamin Franklin. in 1615. 327. 321. case of Robert. Will. Wager of law. definition 156.

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

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