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INTEREST OF THE DISTRICT IN CONVICTIONS.
might elect between the duel and judgement of his country. Defeat in the duel, was equivalent to a verdict of guilty; but victory was not acquittal; the justices might still imprison him if there were good grounds of suspicion. The last case would be that in which the jurats had presented him. Here the public opinion of the country had already condemned him; and our hypothesis started from the point that there was not sufficient evidence to convict. All that could be done, therefore, was to appeal to the other judgement of God, the ordeal by water or fire; and escape in this again was not acquittal: the accused might still be imprisoned, or forced to leave the kingdom.1 The jurats had a direct interest in procuring convictions. For if a dead body were found, the district was bound either to produce the murderer, or pay the fine of murder to the crown. It is even a question, whether this fine was not levied where death had been caused by starvation or cold, though apparently it was not in cases of pure accident. The theory, no doubt, was that the state ought to be compensated for the injury it had sustained by the guilty or negligent district. But the law must have stimulated the police of the country, at the expense of its morality; it would go ill with an unpopular man, when the township might save money by hanging him.
It is remarkable that the duel, which was introduced only shortly, if at all, before the Norman conquest, and which, by the conqueror's laws, Englishmen were at liberty to decline, became soon the general custom of the country, without restriction to military tenants or to cases of the first importance. The burghers of St. Edmund's Bury claimed it as one of their privileges that any one of them, accused of theft, and probably
1 Bracton, fol. 116. Assize of Clarendon, 1, 5, 12, 14; Palgrave's Eng. Com., pp. clxiii., clxix., clxx., clxxxix.
2 Palgrave's Rot. Cur., vol. i., pp. xxxiv., 159, 162, 202, 203, 210. The principle seems not exactly that of a poor-law, but rather that neighbours were bound to assist every person in danger of death. Thus in the Liber Albus, pp. 88, 89, a beggar woman is found dead; the only man who lived near the spot, declared that he had not been in the town at the time, and was let off on that plea till it proved to be false. For cases of accident, see pp. 89, 97.
THE DUEL AND THE GRAND ASSIZE.
of other offences, might clear himself by compurgation. main reasons seem to explain the duel as a judicial process. In infant societies, a fair fight between two men, before witnesses, was a good exchange for a family feud. Early superstition believed that the blessing of heaven favoured the right cause. In times when oaths were exacted and taken with frightful frequency, perjury had become the crying curse of the land; and it was said that no man's title would be safe, if it might be impeached by mere oaths. This last reason probably applied in great force to criminal cases after the conquest; it is easy to believe that a Saxon would always find neighbours ready to save him from the vigorous hands of Norman justice. But the disadvantages of the duel are obvious. In spite of the law disqualifying hired champions, it is pretty certain that they were always to be had for money. The manifest injustice of hurrying men, in a matter of life and death, occasioned many vexatious delays in suits decided by single combat. Henry II. accordingly introduced the grand assize as a substitute, at the option of the litigants. By this excellent institution, four military tenants of the county or neighbourhood elected twelve others from the district, who were to declare upon oath with whom the right of the impleaded property lay. These men were not jurors in the modern sense. They were all required to know the merits of the cause before them, "from what they had personally seen or heard, or from the declaration of their fathers, and from other equally reliable sources." In other words, they were a commission whose verdict expressed the public opinion of the neighbourhood, enlarged and corrected by the pleadings on either side. If twelve men thus qualified could not be found, the grand asssize was impossible;3 and the duel was the suitors' only expedient. This difficulty shows how completely the modern idea of the jury was unknown to
Chron. Joc. de Brak., p. 74. I presume Fitz-Stephen's statement about the citizens of London, "Eis est finis omnis controversia sacramentum," applies to criminal as well as civil cases.-Vita Beck., vol. i, p. 174. 3 Glanville, lib. i., cap. 21. EE
2 Glanville, lib. i., cap. 7.
THE CASE OF BATTLE ABBEY.
Anglo-Norman times; and explains why the trial by single combat survived for so many years. It fell into disuse in the fourteenth century, but was not abolished; under queen Elizabeth, the judges were once summoned to preside in Tothillfields over a fencing-match; and within fifty years of our own time, a criminal escaped justice by demanding the duel. This absurdity provoked the statute by which it was finally abolished.
An interesting case in the records of Battle abbey will illustrate the customary proceedings in cases turning on the right to landed property. Ralph, abbot of Battle, had purchased lands of a sub-tenant of Ingelrann de Balliol. Ingelrann not only permitted the sale, but threw in an adjoining marsh as a present to the abbey. The transaction was confirmed by Ingelrann's feudal superior and by Henry I. But Gilbert, the next lord of Balliol, demanded compensation from the abbey for the lands thus alienated from his estate; and when his claim was rejected, took possession forcibly, and mortgaged them to a farmer of Hastings. No redress could be obtained under Stephen. But under Henry II., application was made for a trial before the king's court by Walter de Lucy, now abbot, a brother of Richard de Lucy, the grand justiciary. Gilbert de Balliol, distrusting his own case, or dreading his opponent's interest at court, exhausted every subterfuge to delay the time of hearing. In strict law, he might urge several pleas (essoins), illness, a pilgrimage, or absence from the realm on the king's service; for each of these the delay of a specified term would be allowed him; and they might be dexterously intercalated so as to protract the suit indefinitely. The king's frequent absences on the continent were another great impediment to justice, as his court at this time followed him. At last, however, both parties appeared for final hearing at Clarendon. Balliol pleaded that his ancestor's deed was without a seal, and therefore invalid. This objection would have been good by the custom of Henry II.'s time, when the seal was more important than the signature. But Richard
1 Thus, in a poem by John of St. Omer, some peasants of Norfolk are represented as buying their freedom from their lord. They stupidly use the wax seal
DECISION IN FAVOUR OF THE ABBOT
de Lucy asked if Gilbert himself had a seal; and being answered in the affirmative, told him contemptuously that in former times the seal had only been used by kings and great lords, not by small gentry; and that men in that golden age were neither quibblers nor unbelieving. Balliol then complained that Henry I.'s charter had been procured by unjust representations. The king refused to listen to this, which was supported by no evidence, and asked the abbot and his advocate, a knight of the abbey, Peter de Chriel, if they had any further proof to lay before the court. As the king's manner and words showed that he thought the documents in court sufficient, the abbot decided to rest his case upon them. The court at once decreed that the lands impleaded should be restored to Battle abbey. Gilbert then petitioned that his tenant might be permitted to remove such of his property as by Roman and English law had become a part of the soil, and would naturally be transferred with it-farm buildings, crops, and timber placed there by himself. This request was rather harshly interpreted as a confession that his right had never been good; but the court granted it notwithstanding. A precept was then issued to the four knights who held the sheriffdom of Sussex in commission, that they should reinvest the abbot with the lands awarded him, defining their limits by the evidence of twelve trustworthy men of the neighbourhood, who knew the bounds. This was accordingly done; but it provoked a fresh law-suit. A neighbouring tenant, Robert of Yclesham, declared that the jurats had assigned away land belonging to himself, and tried to carry off the hay upon it by force. The energetic abbot roused his tenantry and drove off the intruder. Robert then repaired to the king's court, and lodged a complaint with the justiciary, as Henry was absent at the time. But abbot Walter soon appeared, bringing with him the twelve jurats, and easily established his claim by their evidence.
as a candle at their merry-making, and their lord having heard of it, reclaims. them as his serfs, the deed, without a seal, being void.-Wright's Early Mysteries, pp. 94, 95.
1 Institutes of Justinian, lib ii., tit. 1, ss. 29, 32.
THE SUIT OF RICHARD DE ANESTY.
Robert was declared to have borne false witness, and his personalty adjudged forfeit to the king. He mounted his horse, says the triumphant chronicler of the abbey, and fled trembling to his home. It is noteworthy that in both these cases the forcible entry was no mere fiction of law, but a petty feud.1
Our view of English justice in the twelfth century would be incomplete without some mention of the course of procedure in the ecclesiastical courts. Among the "causes célébres" of the times, none attracted more attention, or involved more important principles, than the suit of Richard de Anesty against Mabel de Francaville. Richard claimed the lands which Mabel's father, William de Sackville, had held as next heir to the deceased, on the ground that Mabel was illegitimate, her mother's marriage being vitiated by her father's pre-contract to another. It must be remembered that the canon law of the church, like the Roman civil law, regards marriage in its secular aspects simply as a parol contract before witnesses. A formal betrothal, being the promise of a future contract, partook of its binding character, in so far that it could only be dissolved by a special act of the church. To old Germanic modes of thought, marriage, on the other hand, was held to date from its consummation, and this view no doubt influenced practice. William de Sackville had affianced himself to Albreda de Tregoz. He, however, married in her place Adeliza, daughter of the viscount Aufred, and had issue by her, of whom Mabel de Francaville was the only survivor. Albreda instituted proceedings in the ecclesiastical court to recover her promised husband, and finally, through the influence of Henry of Winchester, then legate, obtained a rescript from the pope, annulling the marriage with Adeliza. William de Sackville proved a docile son of the church, and deserted his second love for his canonical wife, with whom he lived thenceforth till his dying day, but by whom he would seem to have had no issue. At his death
1 Chron. Mon. de Bello, pp. 105-110.
2 John of Salisbury (Epist. 89) has left an excellent account of this suit, which Sir F. Palgrave has enlarged from the narrative of Richard de Anesty, and elucidated with admirable notes.-Eng. Com., pp. v.-xxvii.