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As the public attention has of late been much directed to the subject of trial by battle, it may not be irrelevant to give a short description of the form of such a trial in an appeal of murder.*
If the appellant accepts the challenge of the defendant, and takes up his glove, the parties. must be put to their oaths. And first, the defendant, laying his right hand on the Gospels, and taking hold of the appellant's right hand with his left, will swear to this effect:-—' Hear this, O man, whom I hold by the hand, who ca!lest thyself William by the name of baptism, that I who call myself Abraham by the name of baptism, did not feloniously murder thy sister, Mary by name, nor am any way guilty of the said felony; so belp me God; [and then he shall kiss the book and say] and this I will defend against thee by my body as this Court shall award.'— Then the appellant, laying his right hand on the book, and taking the defendant's right with his left, will swear to this effect :- Hear this, O man, whom I hold by the hand, who callest thyself Abraham by the name of baptism, that thou art perjured, and therefore perjured because thou feloniously didst murder my sister, Mary by name; so help me God; [and then he shall kiss the book and say] and this I will prove against thee by my body, as this Court shall award.'—The court must then appoint a day and place for the combat; and the lists must be prepared, by inclosing a piece of ground, sisty feet square, the sides to be due north, south, east, a. id west. Places just without the lists are to be provided for the judges, and also for the bar. On the day fixed, the court is, at sun-ris,t to proceed to the spot from Westminster Hall, the judges being in their full robes; and, when they are seated, proclamation is made for the cambatants ; who appear, with bare heads, arms, and legs, each led by a person carrying his baton of an ell long, tipped with horn, and preceded by another, carrying his target made of double leather and square. Each, on entering the Jists, makes congees to the several judges present; and, before they engage, they respectively take an oath against witchcraft and sorcery, to this effect :- Hear this, ye Justices, that I [Abraham Thornton or William Ashford] have this day neither eat nor drunk;I nor have upon me bone, stone, or grass; nor have done any thing,
2 Hawk. P. C. 427. 3 Bl. Com. 340. 4 BI. Com. 347. And see the authorities referred to by each of these writers.
+ In the case in Dyer, however, the judges are said to have repaired to the spot circa horum decimum.'--Dyer, 301. Ten was also the hour in the Durham duel, 1638.
This oath, whether of Norman importation or not, would have exactly suited the Anglo-Saxons ; among whom, as Dr. Henry observes, • an oath was not to be administered to any person, unless he was perfectly suber, and even fasting.' Hist. ubi supr. But why then does Shakspeare, in the judicial combat between the armourer and his man, in Henry VI. describe the combatants as drinking to excess before they enter the lists ?-Or rather (for our author shows that this incident was founded on fact) whence came such an occurrence to take place ?-We must leave it to others to answer.
nor any other for me, whereby the law of God may be depressed and the law of the devil esalted. So help me God.' And then, after proclamation of silence under pain of imprisonment for a year and a day, the combat is to begin, and to continue, unless either party yields or is vanquished, till the stars appear in the evening. The effect of defeat or surrender, on either side, has before been mentioned.
The many absurdities of this ceremonial do not require to be particularly pointed out. Yet it seems perfectly conceivable that in rude and superstitious times, the force of conscience might often make the proceeding efficacious in the detection of crime. Some author remarks that probably the ordeal of the corsned (which was a morsel of bread taken by a person accused, with a solemn imprecation that it might choke him if guilty) seldom proved fatal. On the contrary, we are persuaded that, to the guilty, it frequently proved fatal. Fear alone greatly affects the organs of deglutition; much more would a guilty fear, immediately directed to the imminent danger of not performing the act, operate in the same manner. The judicial combat was probably of still superior efficacy. On the one hand, conscience would make a coward of the criminal; and, on the other, the accuser would seldom subject himself to the hazard of an equal battle, unless he were animated by revenge or enthusiasm to such a pitch of determination as seldom fails to verify its own auguries.
Agreeably to this idea, stories are handed down of the conviction of criminals, through the means of battle, by antagonists far inferior to them in strength or expertness. The most curious example probably on record is one cited from the · Mémoires sur les Duels,' in Montfaucon's ' Antiquités de la Monarchie Française,' vol. iii. p. 69. The author before us has given a translation of the story; but the reader may be amused by an extract from the original. We may observe that the same incident is related in St. Palaye's Mémoires sur l'ancienne Chevalerie,' and in Colombiner's "Théâtre d'Honneur et de Chevalerie,' and that an engraving of it, from an ancient representation in the Castle of Montargis, is given by Mr. Johnes in the supplementary volume to his translation of Monstrelet. The theatres also, both of Paris and London, have, within these few years, exhibited pieces founded
The Chevalier Macaire, jealous of the favour shewn by the king to the Chevalier Aubri de Mondidier, took an opportunity of murdering the latter in the Forest of Bondi, while accompanied only by his dog, an English blood-hound. The dog, however, remained by his master's grave several days; and, when compelled to quit it by hunger, went to the house of au intimate friend of
Aubri's; whom, by his cries and significant actions, he drew to the spot; where, on a search being made, the body was found. Afterwards, the dog on all occasions assaulted Macaire; till
, at length, suspicion was excited, and the king ordered a judicial combat between Macaire and his dumb accuser.
Macaire et le chien furent tous deux mis dans le camp comme deux champions, en presence du Roy et de toute la cour: le gentilhomme armé d'un gros et pesant baston, et le chien avec ses armes naturelles, ayant seulement un tonneau percé pour faire ses relancements. Aussitost que le chien fut lasché, il n'attendit point que son ennemi vint a lui, il sçavoit bien que c'etoit au demandeur d'attaquer : Mais le baston du gentilhomme etoit assez fort pour l'assominer d'un seul coup: ce qui l'obligea á courir çá et lá, á l'entour de luy pour en eviter la pesante cheute. Mais enfin, tournant, tantost d'un coté et tantost d'un autre, il prist si bien son temps, que finalement il se jetta d'un plein saut á la gorge de son ennemy, et s'y attacha sy bien quil le renversa parmi le champ, et le contraignit á crier Misericorde, et á supplier le Roy qu'on luy otast ceste bete, et qu'il diroit tout. Les juges s'estant approchez, il contessa devant tous qu'il avoit tué son compagnon, sans qu'il y eut personne qui: leust put voir, hormis ce chien, duquel il se confessoit vaincu.'
It will be observed, in favour of the theory of Mr. Kendall, on the subject of appeals, that, in the above extract, the dog, who was the accusing party, or appellant, is considered also as the demandeur, or challenger. Indeed, the meaning of an appeal, as we have before observed, is a challenge ; and, in the old chronicles, the term appellant is constantly used for one who challenges another to battle.
With respect to the form and manner of the judicial duel, we feel one difficulty, the solution of which we camiot cominand sutticient leisure to seek. It is well known that the jurisdiction, which our ancient Court of Chivalry possessed within the realm, was confined to matters concerning war and military honour, and did not extend to pleas or appeals determinable by the common law. In the palmy time,' indeed, of feudal and baronial grandeur, that court was perpetually transgressing its limits; within which, bowever, it was driven back by repeated statutes.* It follow's, that appeals of murder or other felony within the realm, in which knights or other persons of high degree were concerned either as appellants or as defendants, fell under the cognizance of the courts
of common law. Cases, therefore, might frequently occur, in which such personages would be called to wage battel according to the forus already described; for knights, unless they were peers, were not exempt. Indeed Bracton, in describing the proceedings in a common-law trial by battle, expressly states some slight difference of ceremonial, according as the party accused was of mean or noble rank.* This difference of ceremonial, however, does not appear to have extended to the habits or weapons of the combatants. All who fought, fought with the baton and target. On the other hand, it is notorious that, in battle on an appeal of felony, the parties could not employ champions, but were obliged to fight in their own proper persons. Here, then, arises the difficulty to which we alluded. Is it imaginable that knights, or even esquires of gentle blood-persons habituated to rein the horse, to throw the. lance, and to joust in complete armour-should condescend to play publicly a match at single-stick, with bare heads, bare legs, and arms bare up to the elbows ? Alciat, in speaking of the judicial combat, is indignant that men of birth and rank should deign to wage
*8'R, II. c. 5. '13 R. II. c. 2. 1 H. IV. c. 14.
battle even on foot:- Omnium more receptum est' (he says)' nobili et generoso viro magis convenire, ut eques et quidem loricatus congrediatur, quàm mercenariorum peditum more, cum equestris militia nostris moribus dignior sit, et nobilium usû frequentior.'+ Here, indeed, he is a little fastidious; for it was a very usual practice with knights of the highest rank, and the most chivalrous honour, not merely in mortal quarrels, but in the generous encounters for fame peculiar to those romantic times, to stipulate that they should meet on foot, armed with battle-ax, sword, and dagger. But what would Alciat have said, had he beheld the uobiles et generosi of England, drubbing each other, in the guise of half-clad rustics, with staves of an ell long?
Montesquieu, it is to be observed, states, that . in France only villains fought with the buckler and baton, gentlemen armed at all points. Whether this account be perfectly accurate, or not, such limited research as we have been able to make does not qualify us to say. Monstrelet, however, we perceive, describes a wager of battle, on a charge of murder, in the court of Duke William, Count of Hainault. The duke, he says, presided at a mortal combat (teint un champ mortel) in which Brunecte, a gentleman of Hainault, charged Soltier Bernaige, a gentleman of Flanders, with the murder of one of his near relatives. The parties fought with lances and swords, and Brunecte overcame his adversary, and forced him to confess the crime of which he had been appealed; upon which he was, by the duke's order, beheaded without delay.* Now had these brave gentlemen fought in England, all authorities seem to agree that they must have thrown aside their
*• Facto siquidèm sacramento in hâc formâ, statim committatur defensor duobus militibus vel legalibus hominibus aliis, secundùm quod appellatus nobilis fuerit persona vel ignobilis,' &c. Lib. iii. cap. 21. We take the liberty of here adding that Blackstone, when, in his account of a trial by battle on a writ of right, he describes the champions as introduced by two knights, seems to us to have erred, in stating that to have happened always, which Dyer and Spelman, his authorities, state only to have happened in a specific instance. We should rather conceive that it was only when the litigant parties were persons of some distinction, that their champions were introduced by knights; and that, in other cases, they were ushered in by inferior freeholders, or, as Bracton in the passage just cited says, legales homines alii. + Alciat, c. 39 and 40, apud Dugd. Orig. Judic. 77.
spears and swords, and beat one another with sticks tipped with horn. It is, however, extremely hard to believe that the chivalry of England, the flower of the courts of Cour-de-Lion and the Black Prince, the countrymen of Chandos and Talbot, should have been less nice on the point of knightly rank and etiquette than their brethren on the continent. How then is this difficulty to be solved? Must we suppose that the persons in question, on the plea of their military character, found ways and means of carrying all their combats into the Court of Chivalry, where, it is well known, the judicial battle was fought in complete armour? We profess ourselves unable to decide these questions.
But, in these inquiries of mere curiosity, we are forgetting a far more important topic, and indeed the very topic which we chietly proposed to ourselves on the present occasion. That some alteration of our criminal law with respect to appeals and trials by battle is imperiously called for, seems very generally thought; and we take it for granted that the subject will be considered during the present session of Parliament: but it is not very easy to determine how far the new-modelling ought to extend. All indeed agree that the monstrous opprobrium of wager of battle cannot too soon be removed; but an opinion has been suggested that the appeal of murder might be allowed to remain, provided only it be made to undergo such modifications as shall turn it into a new trial of the person accused, granted by competent authority. It is this question on which we would wish to say a few words.
In the discussion of this point, thus abstractly and nakedly put, we regret that the author before us does not afford us so much assistance as might have been hoped. That some change or other ought to be made in the law of appeal, his argument cannot fail to enforce on the mind of every unprejudiced reader; and in this view, his work seems to us very valuable. Nor is he slow to deliver his opinion, that the very principle of a second criminal trial is altogether unsound and monstrous. But, when his reasoning is traced, it will be found that he so blends this principle with the absurdities actually attached to it in the practice of English law, as to afford no distinct view of the merits of the principle itself. At the same time it would be doing him an injustice not to notice the grounds on which he intimates rather than argues that the principle ought to be condemned. He repeatedly propounds it as a great and sacred maxim of the
Chroniq. c. 23.