was one ancient absurdity pitted against another for the purpose of neutralising it. In the ensuing session, both the practices were abolished by act of parliament.

There is no doubt that the ordeal, as it was termed, of trial by battle, whatever solemn associations may have been connected with it, arose out of a very simple source; the propensity in rude ages for might to make right, and for him who was the best fighter to prevail in every dispute. It grew among the people of that time, when

The good old rule,

Sufficed them, the simple plan,

That they should take who have the power,
And they should keep who can.'

It did not entirely belong to criminal law. Questions of territorial right were solemnly handed over to the ordeal of battle. Blackstone describes the whole affair as he does other methods of going to law and deciding on disputed points. He mentions the space of ground laid out for the encounter, the dresses of the combatants, and the bench reserved for the judges. An oath is solemnly put against sorcery and enchantment, the combatants declaring that they have not about their persons bone, stone, grass, or any other amulet or enchanted thing, by which the operation of the Deity may be interrupted by the powers of darkness. Describing it in a civil case about a question of land, when the parties fought by deputy, and the result seldom proved fatal-as it generally was in accusations of great crime-he continues to say: The combatants are bound to fight till the stars appear in the evening; and if the champion of the tenant can defend himself till the stars appear, the tenant shall prevail in his cause, for it is sufficient for him to maintain his ground, and make it a drawn battle, he being already in possession; but if victory declare itself for either party, for him is judgment finally given. This victory may arise from the death of either of the champions, which, indeed, hath rarely happened; the whole ceremony, to say the truth, bearing a near resemblance to certain rural athletic diversions, which are probably derived from this original. Or victory is obtained if either champion prove recreant; that is, yields, or pronounces the horrible word craven --a word of disgrace and obloquy, rather than of any determinate meaning. But a horrible word it indeed is to the vanquished champion; since, as a punishment to him for forfeiting the land of his principal, by pronouncing that baneful word, he is condemned as a recreant, to become infamous, and not be accounted a free and legal man.'-(Commentary on the Laws of England, iii. 340.)

It is easy to suppose, that long before Blackstone's time, this practice had become a sort of joke, and yet how much of it seems actually to have been deemed a matter of importance by the eminent commentator! Stowe, the chronicler, gives us an account of this kind of contest when it was in its full vigour and importance.

The suit was that of Low v. Kyme, brought to the ordeal of battle in Trinity term 1571. The affair was to come off in the Isle of Harty, adjoining to Sheppey, in Kent. We are told how Simon Low and John Kyme brought a writ of right against T. Paramore, who offered to defend his right by battle. Hereupon the said Thomas Paramore brought before the judges at the Common Pleas in Westminster, one George Thorne, a big, broad, strongset fellow; and the plaintiffs brought Ben Naylor, master of defence, and servant to the Right Honourable the Earl of Leicester, a proper slender man, and not so tall as the other. Thorne cast down a gauntlet, which Naylor took up.' Then follow some technicalities about the process-for all this was part of a process at law-neither interesting nor very intelligible. In the midst of these, it was arranged that the court should sit in Tothill Fields, where were prepared one plot of ground, one-and-twenty yards square, double railed for the combate, without the west square, a stage being set up for the judges representing the Court of Common Pleas. All the compass without the lists was set with scaffolds, one above another, for people to stand and behold. There were behind the square where the judge sat, two tents, the one for Naylor, the other for Thorne. Thorne was there in the morning timely. Naylor, about seven of the clock, came through London apparelled in a doublet and galy-gascoigne breeches, all of crimson satin, cut and rayed; a hat of black velvet, with a red feather; and band before him, drums and pipes playing. The gauntlet that was cast down by George Thorne, was borne before the said Naylor upon a sword's point; and his batten, with his shield of hard leather, was borne before him by Askam, a yeoman of the Queen's Guard. He came into the palace of Westminster, and staying not long before the hall-door, came back into the King's Street, and so along through the Sanctuary and Tothill Street into the field, where he staid till past nine of the clock, and then Sir Jerome Bowes brought him to his tent-Thorne being in the tent with Sir Henry Chieney long before. About ten o'clock, the Court of Common Pleas removed, and came to the place prepared.'

We now get into technicalities again, from which it appears, that from the peculiar position of the question, it was necessary that both parties should meet as if they were actually going to fight, and equally necessary that they should not fight. The farce seems to have been so solemn, that down to the last moment the champions appeared to have believed that they were to be let loose on each other. But by some of the mysterious juggles, which have equally mysterious names in English law, the object of contention was instantaneously whisked out of sight. And yet it is apparent from the history of the proceedings, that somehow this could not have been done, unless all the formality of preparing for the combat had been undergone, unless the people had assembled in the hope of witnessing it, and unless the champions themselves had

believed that they were to engage. One of the champions seems not to have liked the fiction involved in the proceedings, bethinking himself that he cut rather a ridiculous appearance. After the Lord Chief-justice had rehearsed the manner of bringing the suit, and of the making and acceptance of the challenge, and how, by a new shift in the proceedings, all had come to nought, and the champions were dismissed, and the sureties acquitted of their bonds, he also willed Henry Naylor to render again to George Thorne his gauntlet, whereunto the said Naylor answered, that his lordship might command him in anything, but willingly he would not render the said gauntlet to Thorne except he would win it; and further, he challenged the said Thorne to play, with him half-a-score blows, to shew some pastime to the Lord Chiefjustice and the other three assembled, but Thorne answered, that he came to fight, and would not play. Then the Lord Chiefjustice, commending Naylor for his valiant courage, commanded them both quietly to depart the field."os on Wade stora or if qui de

ד

When so much formality attended the wagers of battle about civil questions, it may be believed, that when charges of heavy crimes of murder or treason-were passing, and the passions were roused, the affair was still more pompous and impressive. But even in these vital and important contests, there was often a dash of the ludicrous; and when we consider their essential absurdity, it seems but natural that it should SO. When the employment of counsel in courts of law came into use, the legal advisers attended within the lists, for they were a court of law, and everything must be done according to style. There was attendance also from another learned faculty, more appropriate to` the scene; for we sometimes learn that a surgeon was present with his ointments. Persons in prison were permitted, before a judicial combat, to take lessons in fencing a circumstance known from the official warrants for the relaxation of their imprisonment. A well-known national propensity is indicated, in the combatants being permitted to strengthen themselves with strong liquors. Their position, sometimes led them, as may be easily supposed, to abuse this licence to their own discomfiture. Grafton, the chronicler, tells how, in the year 1445, an armourer's workman charged his master with treason, and a judicial combat was the result frAt the day assigned,' says the chronicler, the friends of the master brought to him malmsey and aqua vite to comfort him withal but it was the cause of his and their discomfort, for he poured in so much, that when he came into the place in Smithfield where he should fight, both his wit and strength failed him; and so he, being a tall and hardy personage, overloaded with hot drinks, was vanquished by his servant, being but a coward and a wretch.' The master was taken to Tyburn, hanged, and afterwards beheaded.

The student of Shakspeare will remember the use made by him of this tragi-comic incident in the second part of Henry VI.

York tells that it is the day appointed for the combat, and Queen Margaret says, she left the court of purpose to see this quarrel tried. York remarks:

1

'I never saw a fellow worse bestead,

Or more afraid to fight, than is the appellant-
The servant of this armourer."

The stage direction is of more than usual length and fulness of detail. Enter on one side Horner, and his neighbours drinking to him so much, that he is drunk; and he enters bearing his staff, with a sand-bag fastened to it-a drum before him. At the other side Peter, with a drum and a similar staff, accompanied by prentices drinking to him.' The conversation which goes on is equally jovial, and conducive to the catastrophe :

1st Neighbour. Here, neighbour Horner, I drink to you in a cup of sack; and fear not, neighbour; you shall do well enough.

2d Neighbour. And here, neighbour, here's a cup of Charneco.

3d Neighbour. And here's a cup of good double beer, neighbour; drink, and fear not your man.

Horner, Let it come, i' faith; and I'll pledge you all, and a fig for Peter.'

But Peter has his backers also; fortunately, they seem not to have been so well supplied :

'1st Prentice. Here, Peter, I drink to thee; and be not afraid.

2d Prentice. Be merry, Peter, and fear not thy master. Fight for credit of the prentices.'

Peter is not very sanguine. He says to his backers:

L

'I thank you all. Drink, and pray for me, I pray you, for I think I have taken my last draught in this world. Here, Robin, an' if I die, I give thee my apron; and Will, thou shalt have my hammer; and here, Tom, take all the money that I have. O Lord, bless me, I pray God! for I am never able to deal with my master, he hath learnt so much fence already.'

"

Nobody is more astonished than Peter himself, when his drunken master falls before his puny efforts. He exclaims: 'O God! have I overcome mine enemies in this presence? O Peter, thou hast prevailed in right!' If we were to trace the sources whence the finest creations of genius have been suggested, we should probably find the suggestive cause often very unlike its result. What if Scott's solemn and tragic combat in Ivanhoe where Rebecca has the alternative of a life of shame or an agonising death-were suggested by the same event which gave Shakspeare this ludicrous episode? They had a feature in common in this that the redoubted champion fell before his feeble adversary, and the result of the conflict was the reverse of what all who saw it, and argued from the physical aspect of the champions, could have anticipated. In the one case, liquor produced the catastrophe; in the other, the overwrought passions acting on the frame. Is it quite absurd to

No. 10.

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suppose that Scott, finding Shakspeare to have made a comic and ludicrous scene from the incident, resolved to try if he could not make a tragic and solemn one?

These notices of trial by battle are, it will be observed, appropriate to the statement, that, like jury-trial, it was an old ordeal for discovering guilt, before men had adopted the scientific methods of investigation now pursued. There were many kinds of ordeal less noted; but perhaps the most picturesque and awe-inspiring among them, was that which proceeded upon the idea, that a dead body would indicate the murderer by bleeding afresh when he touched it. This is a natural shape for superstitions connected with murders to take their tendency to reveal the deed; and those even who did not believe in supernatural interventions, would be less inclined to discourage this than many other forms of superstition, its results being in some measure beneficial, by creating terrors in the guilty mind. So Macbeth says:

'It will have blood, they say-blood will have blood.
Stones have been known to move, and trees to speak;
Augurs and understood relations have,

By maggot-pies, and choughs, and rooks, brought forth
The secretst man of blood.'

The circumstances which lead to the detection of murder, have often been in themselves extremely trifling: a piece of a ballad in which the bloody knife was wiped is found; the impression of a peculiar patch on the sole of a shoe has been left in the clay; a button has been torn off in the scuffle. From such petty matters, justice has been guided straight to the murderer. In times of ignorance and superstition, a result so important in comparison with the cause, is attributed to a special interposition of Providence to avenge the guilt of blood; but among the better instructed, the series of circumstances can easily be analysed into something very different. What is chiefly concerned, is that feeling of self-preser vation which the Deity has implanted in all mankind. It takes instant alarm when it hears of murder; the whole community is up. It is not merely the affair of him whose relation has been cut off, but of all whose case it might have been. Consequently, the smallest particulars of the case are minutely investigated, mented on, and reported. Where all are so excited and so interested, any particular conduct in one special person becomes the subject of remark. In short, nothing escapes notice; and every promising line of research is followed up. Multitudes of petty delinquencies which escape detection, would be found out, were they investigated with the same zeal and minuteness as a murder. If the Mannings in Miniver Street had been accused of only stealing a silver spoon, the appearances in their house would not have been so carefully noticed as to lead to a discovery that the flags in the kitchen-floor had been moved; and the police, even if this fact had been noticed, would not have thought it worth while to dig beneath.

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