THE HIGHWAY OF LEARNING

Let us follow the "poor boy," a technical expression at Oxford, through the stages of his academic career in that University. At the outset two courses were open to his parents or guardians: either he might be sent to a religious foundation like Durham College, where he would be under no obligation to take vows, but an oath would be required of him to honour the monks and assist the electing Church, to whatever station of life it might please God to call him. Or, as was infinitely more usual, he might be settled in a secular school of grammar in charge of a recognized master.

Before the rise of colleges, the vast majority of scholars resided in halls, some of which were kept by laymen. In 1421 the King, incensed at the constant breaches of the peace, commanded that all scholars and their servants should be under the governance of some sufficient principal approved by the Chancellor and Proctors, and should not be suffered to abide in laymen's houses. In 1432 a statute set forth that, whereas the principals of halls, fearing to lose their profits, did not punish the members of their societies, still less did they dismiss them, when it was their duty to do so; nay, even provoked disturbances—the consequence, it was believed, of illiterate persons and non-graduates keeping halls—it was ordained that henceforth all principals and their deputies must be graduates. In the preamble of another statute of the same date it was complained that grave crimes were committed by so-called scholars, who, nefando nomine "chamberdekenys," lived in no hall, but slept away their days, and passed their nights in riot and debauchery, crime and violence. This irregularity it was found difficult to suppress, for on May 13, 1447, two persons feigning to be scholars and guilty of violence, having been summoned according to law throughout the schools and not appearing, were banished. The form of banishment was as follows: "A, B, C, D, frequently convicted of a monstrous disturbance of the peace, and, according to the manners and forms accustomed to be observed in this University, duly cited, publicly cried, lawfully awaited, and in no wise appearing, but contumaciously refusing to obey the law, alike on account of their contumacies and offences we do ban from this University, and from neighbouring places, admonishing firstly, secondly, and thirdly, peremptorily, that none do receive, cherish, or protect the aforesaid A, B, C, D, on pain of imprisonment and the greater excommunication to be fulminated not unjustly against all who contravene."

Matriculation involved nothing more than an oath to keep the peace, which oath had to be taken also by the servant of the scholar, supposing him to have one. If the scholar chose a non-graduate teacher, he was compelled to enter his name in the books of some master of arts, and neglect to fulfil this requirement subjected the delinquent to the loss of the protection and privileges of the University tam morte quam in vita. At the commencement of every term as well as at the end, and at other times, when need was, the grammar masters held a convenite for the purpose of arranging the course of study. Each of them had to obtain a licence, and, as a test of his qualifications, he submitted to an examination in versification, dictation, and so forth, lest, as the statute quaintly expresses it, the language of Isaiah should be verified—Multiplicasti gentem, non auxisti laetitiam.

The masters were charged with the training of their scholars in religion and morals—an onerous duty in too many cases imperfectly performed. This is shown not only by the lawlessness prevalent in the University, but by the low views and low practices that characterized methods of instruction in secular subjects. The term "lecture," as commonly understood in the Middle Ages, implied or included a catechetical system of teaching, in which the master asked and the scholar answered a series of questions. This laborious but effective mode of ascertaining and accelerating progress in knowledge was left irksome by both parties, and "ordinary" lectures—or, as we should term them, lessons—were threatened with supersession by a seductive invention known as "cursory" lectures. These appear to have been neither more nor less than lectures in the modern sense. The master delivered his discourse, and the scholar was left to gather from it what degree of enlightenment he could or would. The statute referring to the subject taxes teachers with favouring scholars in this way, for the "hope of gain," which points to corrupt dealing between them. In both its moral and intellectual aspects the practice met with scant countenance from the authorities, and, save in special cases, any master indulging in it was liable to be punished with deprivation and imprisonment for so long a period as the Chancellor, in his discretion, deemed fit. One learns from an undated statute, which, however, is probably of the thirteenth century, that grammar scholars were expected to construe in both English and French, the object being that the latter language might not be utterly forgotten. When we recall that our ancient pleadings were in Norman-French, and that a sensible proportion of the students embraced that most conservative of professions, the law, the wisdom of this course is at once evident.

The grammar schools may be regarded as the nursery of the University, but not a few of the scholars, educated in monastic and other local schools, arrived with a knowledge of Latin sufficient to dispense them from preliminary instruction in that language, for that is what is meant by "grammar." It is not perhaps quite clear whether a schoolmaster's house ranked as a hall, but, as soon as a scholar was equipped with an adequate stock of Latin to enter upon his Artist's career, he would naturally move to one of the halls tenanted by his equals in learning, thus making room for another and younger person more strictly in statu pupillari. The age at which students began their academic course in earnest averaged from twelve to fifteen—needless to say, much earlier than at present. They were required to devote four years to qualifying for the degree of bachelor; and during the former part of this period they went by the curious name of "general sophist." This, the initial, stage of University existence was terminated by an examination, then and still called Responsions, which might not be taken in less than a year, after which the student became known as a "questionist." The occasion of responding was a high day with scholars, and celebrated with such extravagant feasts that we find the Chancellor intervening to limit the expense attending them to sixteen pence. The meaning of the term "Responsions" is explained by the formula of the testamur: Quaestionibus magistrorum scholarum in Parviso respondit. The parvise, or porch, may have been symbolical of the initial stage—the early provisions of our universities are full of symbolism. By way of preparation for his examination the sophist was required to be diligent in attending disputations in the parvise, and when he presented himself for his own ordeal he had to make oath that these exercises had been duly performed.

The third stage was reached when the "questionist," as he was now, stood for his bachelor's degree. This was known as Determination, because the candidate had to determine questions in which his recent acquisitions in logic should have enabled him to appear to advantage. According to the rule, this function took place either on Ash Wednesday or on some day between Ash Wednesday and the following Tuesday. However important Responsions may have been in the eyes of the youthful student, they paled before the elaborate ceremonies of Determination. In all the two-and-thirty schools of School-street sat the Masters Regent in full academical attire, their desks before them, it having been enacted that the exercises should be carried out in the schools, not in private dwellings or in churches. The statutes forbade unfairness in proposing questions or in the manner of examining, but the candidate was, to some extent, forearmed in this matter, since he might, apparently, select his own judge. As a good audience was considered a primary necessity by the masters, in order that their talents might obtain the widest possible recognition, well-wishers seem to have gone so far as to drag into the schools reluctant passers-by—a nuisance of such frequent occurrence that it was forbidden by statute. An attempt was made also to prevent fees or robes being given to the masters, but the statute doubtless proved inoperative, and was afterwards repealed. Another custom, which the authorities vainly prohibited, and was plainly incongruous at the season of Lent, was the holding of feasts by bachelors on admission.

Before a scholar was permitted to determine, six masters at least had to testify on oath in congregation regarding his fitness in knowledge, morals, age, stature, and personal appearance. They were bound to secrecy as to the nature of their testimony, the sufficiency of which was decided by four Regent Masters of Arts, two of the North and two of the South, eight days before Ash Wednesday. On the following Sunday, Monday, or Tuesday masters and scholars appeared before the four members of the Committee; and if the testimony had been satisfactory the scholars made oath that they had completed the necessary studies, and were "admitted" to determine. Determination itself was largely a show, and had nothing to do with the attainment of the degree, of which it was rather the outward and visible sign. If the student failed to acquit himself with distinction, the only penalty to which he exposed himself was the censure or ridicule of friends and foes. Discomfiture was extremely probable, as the affair was intellectual game, in which either the master laid himself out to pose the scholar, or a brace of scholars argued (or, as the phrase then ran, "disputed") by turns, under the supervision and correction of the master.

In conformity with modern usage, we have spoken of the status of Bachelor as a degree, but originally it is doubtful if the description would have been deemed accurate. Like the Master, the Bachelor might be a teacher, but his lectures were, for the most part, of an "extraordinary" or "supernumerary" character, and not allowed to compete with the "ordinary" lectures of the Master or Doctor. The number of bachelors so privileged—instances even occur of such half-finished clerks officiating as Principals of Halls—was probably very small, and much would have depended on age. As a rule, bachelors went on with their studies as before, attending the lectures of others, until three more years had elapsed, when they became eligible for Inception. At first it seems as if the terms "Determination" and "Inception" had somehow got transposed. In reality the latter word contemplates a state or condition which was only possible or usual when the scholar, having accomplished the full course of study, finally and definitely assumed the rights and duties of Master.

The fundamental distinction underlying all academic order was that of teacher and pupil. The licentiate, it is true, may be regarded as a hybrid, and the Doctor as an overgrown master—a master and something more; but the existence of these classes only obscures what was, nevertheless, the vital and essential principle on which University discipline was organized.

We have heard of licentiates once before—as excluded from University processions. This clearly implies no small amount of prejudice against them, but ere an attempt can be made to account for it, we must understand what, exactly, a licentiate was. A licentiate, then, was a bachelor who had attended lectures for some time, had given lectures, and had been privately examined by members of his faculty. Having been presented by one of them, he had obtained from the Chancellor licence to perform certain exercises before the conventus, or meeting of the faculty, by which the degree was finally bestowed. The Chancellor's licence authorized the candidate to incept, to read (lecture), to dispute, and to do all that belonged to the rank of master as soon as he had taken the necessary steps for the purpose. The licentiate lectured in the schools, precisely like the master, for whom indeed he acted. The fee for the licence was one commons, which may represent a shilling—in any case, it was trivial. The cost of Inception, on the other hand, was very great on account of the feasts, etc., which accompanied it; and as the licentiate already enjoyed some of the privileges of the master, there was an evident temptation to put off the evil day. Security was therefore demanded from the licentiate that he would incept within a year; and, if he omitted to do so, he was fined. Nevertheless, students often remained in this category—neither fish nor fowl—beyond the allotted term, in fact, for years; and they probably furnished a considerable quota of the vagabond scholars, whose exactions have been recorded, and who certainly did not consist wholly and solely of "poor boys." One of the Cambridge statutes deals expressly with this baneful materia vagandi. These two reasons together fully explain the disfavour with which licentiates were regarded, and which ultimately led to the abolition of the status. At Cambridge it had ceased before Bedel Stokys' time (1574), for, when he wrote, the licence was given by the Proctors at the vespers, or exercises, on the day preceding Inception.

We come now to Inception, or the degree of Master of Arts. The candidate was first presented to the Chancellor and Proctors by his master, who was called upon to make oath that he believed his pupil to be qualified for admission by his morals and learning. This testimony, however, was not enough. No fewer than fourteen masters had to depose, nine that they knew, and five that they believed the candidate to be fit. He was then presented to the Chancellor and Proctors in congregation, and, with hand laid upon the Bible, swore, in a kneeling posture, that he would keep the statutes, would actually incept—we shall see what this means presently—within a year, that he would not spend more at his inception than the sum allowed, that he would neither lecture nor hear lectures at Stamford[6]—nefandum et detestabile nomen—and that he would handle the books of the library with becoming care. Having assented to these and other conditions, he received the Chancellor's licence.

It is to be noted that the Chancellor merely admitted; he did not create. This was, and at Cambridge still is, the work of the faculty—the Proctors, as representative of the Arts, or the several "fathers" in the three superior faculties, for whom the Regius Professors are now substituted, in the junior University. At Oxford, since the promulgation of the Laudian statutes, the duty has been discharged by the Vice-Chancellor. In the faculty of Grammar—the Cinderella of the faculties, which apparently did not of necessity involve any previous academical training—the Master was presented with a palmer and a rod. In Arts a cap was placed on his head, and in the higher faculties the Master or Doctor was installed in a chair and received the hat, together with the book, the ring, and the kiss of peace—the three last, perhaps, in theology alone.

Inception properly signified the commencement of an active career as a teacher; and thus the new master would have taken precautions to secure a school as well as the articles of attire appertaining to his degree, including "pynsons," a kind of boot or shoe. He was also obliged to visit all the schools, invite the masters to be present on the day of inception, and provide them, one and all, with a suit of clothes. This was such a serious incubus that statutes were passed limiting such perquisites to kinsmen or members of the same hall; and it probably explains the custom of incepting for others—the rich acting for the poor. From every inceptor the bedels were entitled to a gratuity of twenty shillings and a pair of buckskin gloves, or an equivalent sum of money; and inceptors whose income amounted to forty pounds a year were compelled to feast all the Regent Masters or forfeit twenty marks to the University. The main distinction between Regent and Non-Regent Masters seems to have been that the former were perforce teachers, in which condition they were obliged to remain during the remainder of the year in which they incepted and for a twelvemonth afterwards. In the case of the Non-Regents, who had exceeded this period of probation, lecturing appears to have been optional. The Regent Master was required to devote forty days of his novitiate to disputation.

Inception feasts were apt to degenerate into occasions of riot, and in 1432 the following statute was passed with a view to regulating them:

"Whereas at the feasts held at graduations there occur such disorderly scenes and violence that more annoyance and disgrace than pleasure is caused to the host himself and all his guests, the University, for the prevention of such disorders for the future, hereby orders that no one shall stop the ingress and egress of any master or his servants to or from the hall or tent or other place where the feast is being held; and that no one, except the servants of the University, or of the host, shall enter the said hall, until after the masters, who have been invited, have entered with their servants; and after they have sat down, no one shall sit down, except by the appointment of the Chancellor and in proper order according to rank; and no one shall beat the doors, tables, or roof, or throw stones or other missiles so as to disturb the guests, on pain of imprisonment, excommunication, and a fine of twelve pence."

As these convivialities were so unpleasant, and even dangerous, it may seem that it would have been the obvious course to prohibit them altogether, as in the case of determining bachelors; but the University clung to its feasts, and in 1478 fresh rules were made, this time with the special aim of bleeding or mulcting the intrusive friars and the wealthy monks:

"Every mendicant friar shall, on the day of his inception, feast the Regent Masters according to ancient custom, or forfeit ten marks to the University; and every such incepting friar must be a regent for twenty-four months from his inception. And every religious possessing private property, and not being an abbot or prior or other governor of a conventual house, the rents of whose society amount to two hundred pounds yearly, must on the day of inception feast the Regents or pay twenty pounds to the University in lieu of a feast. And every secular, who can spend forty pounds a year at the University, must, in default of such feast, forfeit twenty marks; and, if he can afford to spend one hundred pounds, must forfeit twenty pounds."

Brief reference must here be made to the relations between the mendicant orders and the University in general, if only because the memory of the former was so perpetuated, long after the disappearance of the fraternities, in the famous term "Austins." Those relations were, for a considerable time, the reverse of friendly. The friars complained that degrees in theology were refused them; the University accused the friars, among other enormities, of "stealing children." To prevent such abduction, in 1358 the following statute was passed:

"The nobles and people generally are afraid to send their sons to Oxford, lest they should be induced by the mendicant friars to join their order; it is therefore hereby enacted that if any mendicant friar shall induce or cause to be induced any member of the University under eighteen years of age to join the said friars, or shall in any way assist in the abduction, no graduate belonging to the cloister or society of which such friar is a member shall be permitted to give or attend lectures in Oxford or elsewhere for a year ensuing."

This enactment was repealed eight years later; but in 1414, when forty-six articles were drawn up by the University of Oxford, addressed to the Council of Constance, it was urgently represented that the friars should be restrained from granting absolution on easy terms, from stealing children, and from begging for alms in the house of God. Their adversaries also warmly denounced the nefarious conduct of "wax-doctors," or ignorant friars, in seeking to obtain graces for degrees by means of letters from influential persons; and in 1358 their indignation bore fruit in a very stringent statute bearing upon the subject.

It is difficult not to think that a large part of this antagonism was caused by envy of the friars. For one thing, they were excellent grammarians, and eventually almost all elementary instruction passed into their hands with the full approval of the authorities, who ordered that payment should be made to them, as the actual teachers, and no longer to the idle grammar masters. This, however, is only a tithe of the service rendered by the friars to the University, which owed an immense obligation to them. The Dominicans, Franciscans, Carmelites, and Austins, all settled at Oxford, and rendered invaluable service to the cause of learning. The most erudite were perhaps the Franciscans, who arrived in 1224 and established themselves in St. Ebbe's parish in houses and lands assigned to them by Richard le Mercer, Richard le Miller, and others; and their possessions were enlarged and confirmed by Henry III., their chief benefactor.

Such was the fame of the Franciscan friary that in 1353 Bishop Grosseteste, of Lincoln, left all his books to the brotherhood, whilst Bishop Hugo de Balsham, founder of Peterhouse, Cambridge, in his statutes, dating about 1280, directed that some of the scholars should annually repair to Oxford for improvement in the sciences under Franciscan and other readers. It was in this seminary that Roger Bacon, so renowned for his devotion to science and mathematics in the barbarous ages, received his education. The priory, with the fine chapel and large enclosures belonging to it, was granted in the thirty-sixth year of Henry VIII. (1534) to two persons named Richard Andrews and John Howe, who sold it the same year to one Richard Gunter.

We are, however, chiefly concerned with the Austins, whose priory had a similar history. In 1351 Pope Innocent IV. empowered the Friars Eremites of St. Austin to travel into all lands, found houses, and celebrate divine service. Here in England they were first domiciled in London, but certain of the brethren were deputed to journey to Oxford, where they hired a small house near the Public Schools. Their attainments in divinity and philosophy having attracted the attention of a rich Buckinghamshire knight, Sir John Handlove, or Handlow, of Burstall, he bought a piece of ground for them, and this was afterwards enlarged by a gift from Henry III. Upon this they erected a splendid college and chapel, in which, before the Divinity School was built, the University Acts were deposited, and exercises in Arts performed. It was particularly enjoined that every Bachelor of Arts should dispute once a year, and answer once a year, in this house—a rule enforced until the dissolution. The disputations were then removed to St. Mary's, and afterwards to the Schools, but they still retained the name they had so long borne—"disputations in Austins."

Candidates for degrees in the higher faculties—Law, Medicine, and Theology—had to undergo the same experiences as were prescribed for the faculty of Arts; that is to say, they had to respond, to dispute, to determine, and to incept. Regents from other universities were permitted to lecture at Oxford after determining in the schools of their respective faculties, and those "resuming," as the phrase was, in Arts were required to determine at least thrice in the schools of the Masters Regent, once in grammar and twice in logic. This liberal spirit was tempered by common sense, since only those were admitted whose almae maters received Oxford graduates on equivalent terms. At Paris and elsewhere the sons of Oxford were, it was complained, maliciously shut out from academic privileges, and accordingly those proceeding from such places had the same measure meted out to them at Oxford.

In a chapter like the present it seems fitting to furnish an account of a typical round in a mediaeval university. Ample material exists for this reconstruction as regards Oxford, but that University—the senior of the two, and the model of the other, as Paris was of it—has already absorbed a large share of our attention[7]. We will therefore turn our eyes to Cambridge, and to a period somewhat later than the times on which we have mainly dwelt—i.e., that which followed the institution of colleges.

At both Universities the colleges were closely associated with the Church, but if any may be pointed out as pre-eminently designed for the study of theology, it was surely St. John's College, Cambridge.

Three of the scholars were appointed by the Deans ministri sacelli (servants of the sanctuary), of whom one had to act as sub-sacrist at morning mass and ring the bell at certain hours, whilst the two others were clock-keepers and bell-ringers.

The first act of the day was the ringing of the great bell at four o'clock in the morning—a duty which devolved on the third of the ministri sacelli. "Let the third ring the great bell of the College every day, except on Good Friday and Easter Eve, as was wont to be done before the College was founded. Let it ring at the fourth hour, that those throughout the whole University, who wish to rise at that hour and apply themselves to their studies, may more easily rouse themselves at the sound of the bell."

The earliest Chapel service—morning mass—was over before six, after which three lecturers were engaged for two hours in teaching and examining the scholars and bachelors and hearing their recitations.

Disputations in philosophy were held on Mondays, and on Wednesdays and Fridays similar exercises took place in theology, each disputation lasting two hours, and two questions from Duns Scotus being discussed.

Each priest was obliged to celebrate mass four times a week, a fine of fourpence being imposed if he failed to celebrate three times; and each fellow and scholar had to say daily the psalm De Profundis, the suffrages, and a prayer for the souls of the foundress and other departed benefactors. These constituted quite a long list, and included Henry VI., Henry VII., Henry VIII., Cardinal Wolsey, and James Stanley, Bishop of Ely, who gave the old hospital to the college. Another benefactor was Bishop Fisher, who established two fellowships and two scholarships; and priests on this foundation were required to say four masses weekly for his soul and the soul of Lady Margaret, his "second mother." Those who were not priests had to say daily the psalm De Profundis, the suffrages, and the prayer Fidelium Deus omnium conditor.

"Also on all Sundays and other festivals the Masters, Fellows, and Scholars shall say Matins, Sprinkling of Holy Water, Procession, Mass, and Vespers and Compline, according to the ancient use of the Church of Sarum, at convenient times, as the Master shall appoint."

A fourth part—that is, seven—of the fellows were told off to preach to the people in English, and at least eight sermons were delivered in the course of the year, one in the college chapel. Should this last be omitted, the defaulter lost his fellowship. On the other hand, preaching was encouraged by the concession of various privileges, such as the salary of a mark, exemption from college office and disputations, a week's commons for every sermon, leave of absence from college, and the right of holding benefices. Each preacher, besides the delivery of sermons, had to expound the Bible lessons read in hall daily, except on particular festivals. By the way, the reading aloud of the Bible in hall during meals was inflicted by the Master on disorderly scholars as a punishment and an alternative to feeding alone in hall on bread and water.

Six monitors were chosen from among the scholars by the Deans, and of these two put bad marks against those who absented themselves from chapel or lecture, whilst four reported misbehaviour in hall or the use of any language other than Latin, Greek, Hebrew, Chaldee, or Arabic. Breach of the latter rule subjected the offender to the fine of a halfpenny, if a fellow, and a farthing if a scholar. Every week seven scholars were appointed to wait in hall, and an eighth to read the Bible aloud during dinner—not always as a penal and ignominious task.

The statutes, in a general way, permitted no dallying in hall after meals—a prohibition for which the following reasons are advanced: "Abuse, slander, strife, scandal, wordiness, and other faults of the tongue rarely accompany an empty but often a well-filled stomach." It was therefore ordained that after grace had been said and the loving-cup had gone round, the fellows and scholars should, without long delay, betake themselves to their studies. But the rule was not to be unduly pressed. "If in honour of God or of His glorious Mother, or one of the saints, a fire is lighted in hall, for the comfort of those who dwell in the college ... then we allow them to remain for the sake of moderate recreation and amuse themselves with singing or repeating poetry or tales, or with other literary pastime." Conversely, "excessive noise, laughter, singing, dancing, and the beating of musical instruments in the bedrooms" were sternly denied.

ON PARADE

We have now embodied in this and the two preceding chapters practically all the information relating to University life that can be conveniently included in a small volume. It is unnecessary to state that, were more space at our disposal, many other features might be incorporated—notably University costume, which was the subject of endless regulations. As the topic is so large and complex, we must reluctantly forgo any proper discussion of it, but it seems needful to subjoin a few remarks designed to throw light on the picture, "New College on Parade," which appears in "Archaeologia," vol. liii., part i.

In the middle, fronting the spectator, is the Warden—none other than the worshipful Thomas Chandler, whose name has been several times mentioned in these pages. He wears a cassock, and over that what may be a sleeved cope or tabard. Over that again is a tippet, a development of the almuce, or worn over it. No hood is visible. On his head is the pileus with tuft or point. The common meaning of these terms, still less their emblematic significance, will not be universally understood. A sleeved cope, then, was the distinctive garb of a canonist not in holy orders, and as Thomas Chandler became S.T.P. in 1450, the capa manicata would be obviously out of place on his person. The tabard, generally associated with heralds, was a sleeveless garment, worn with and probably over the gown, with which it was afterwards combined, and the sleeves of which, at that period, came through the armholes. This garment, a dress of dignity, might be worn by undergraduates, and was compulsory in the case of bachelors lecturing in the schools. The scholars of Queen's College, Oxford, are still officially styled Tabarders.

The tippet was an academic adaptation of the ecclesiastical almuce, and was not the same as the hood, although the almuce seems to have been in the first place nothing but an ordinary hood with a lining of fur to keep out the cold. The original meaning of "typet" was the poke of the cowl, in which, the reader may happen to remember, Chaucer's Frere was in the habit of carrying his knives and pins. Academically, it was a distinct article of dress, lined with fur, and formed part of the insignia of the doctor or master.

The pileus was the hat of honour, evolved from the ecclesiastical skull-cap, and was distinctive of the higher degrees, particularly of that of doctor. Indeed, it has been thought that this class alone is designated by the term pileati found in our old statutes. From the thirteenth century onwards pilei, and the overtopping tufts, were of various colours according to the faculties which it was intended to distinguish. It may be added that red, and even green, gowns were worn by the higher graduates, as appears from wills proved in the Chancellor's Court at Oxford.

Next to the Warden, on each side, are two figures in sleeveless copes, tippets and pilei, without hoods—doctors in theology or degrees. More in the background are other pileati, wearing both tippet and hood; and through the armholes of their outer garments show the tight sleeves of the cassock. These may be secular doctors, or they may be bachelors of divinity or masters of arts. Five on the extreme right have no pileus. Following them are persons wearing hoods and tippets over what may be a tabard, to which are attached loose sleeves or flats, with the tight sleeves of the cassock appearing underneath. This is the most numerous class represented in the picture, and seems to have comprised masters and bachelors of the faculties, with the exception, probably, of theology.

Facing the Warden are younger persons, attired similarly to the last, who may be bachelors of arts; and to the right and left of these are older individuals, severely tonsured, the majority of whom wear surplices. If Mr. Clark's conjecture be correct, they are the clerical members of the choir. Two of them have a scarf over a surplice or, as is more likely, a loose-sleeved cassock. Lowest in rank are the surpliced choristers wearing hoods, with, in some instances, a liripipe depending from them behind.



JUDICIAL

CHAPTER X

THE ORDER OF THE COIF

Between the Universities and the Judiciary of England in ancient times there existed a close link, which is to be found in the serviens ad legem or Serjeant-at-Law. He was at once a graduate and a public official concerned with the administration of justice either as a recognized pleader or as a judge, for, whether in the higher or lower grade, he owed his credentials to the Crown.

We will consider the Serjeant-at-Law in the first place in his academic character, in which he might rank as a B.C.L. or as a Doctor Legum, though this is not quite what we intended by graduation. Law, like the other liberal professions, has always been regardful of outward and visible signs. This being so, we trust we have committed no very serious sin of plagiarism in borrowing as the heading of this chapter the title of a well-known work by Serjeant Pulling, one of the last survivors of the order. At any rate, the plagiarism is open and avowed.

Though the most significant, the coif was not the only exterior note of the Serjeant, in contradistinction to the laymen; and, in order to show how he appeared, when in full professional attire, we think we cannot do better than quote from a fifteenth-century lawyer, one of our greatest authorities on such matters—Serjeant Fortescue. Writing about 1467, he says of his class that they were "clothed in a long robe, priest-like, with a furred cape about the shoulders; and therefrom a hood with two labels, such as Doctors use to wear in certain Universities, with the above-described quoyf." The "long robe"—the proverbial emblem of the legal profession—evidently corresponds with the cassock, the "furred cape" to the tippet, and the "labels" probably belonged, not, as Fortescue seems to intimate, to the hood, but were rather the strings of the coif, which were the attribute of Doctors of Laws. Here we have all the marks of graduation—that is, the process necessary for the lawful exercise of a learned calling—and graduation might be equally accomplished in the schools of Oxford and Cambridge and the Inns of Court.

As regards the remainder of his dress, the Serjeant-at-Law might pass for a Master of Arts or a Bachelor of Divinity. The distinguishing feature is the coif, and, wherever it is discovered, it may be safely accepted as a criterion. Thus in Gosfield Church, Essex, there is an interesting brass of Thomas Rolf (d. 1440), who is represented as wearing a cassock, sleeved tabard, tippet, hood, and coif. The last-mentioned forms a circle round the head, and attached to it are two loops or lappets, which appear below the hood. Boutell has figured this brass, which he states to be that of a serjeant-at-law. The inscription, which has the words legi professus, already pointed to that conclusion, Rolf being devoted to law, as, under the circumstances, he might have been devoted to religion.

To anyone interested in the study of origins the symbolic value of the coif is very considerable. Like the pileus, it may be traced back to the ecclesiastical skull-cap, the corollary of tonsure. In the Dark Ages the lawyers were almost invariably clergy, in the modern sense of the term. By the thirteenth century the original skull-cap, while retaining its general shape, had developed into a head-dress of ampler proportions, and as such, might, and did, serve as a complete disguise of the clerical calling. For that reason it was forbidden to the clergy by Othobon's Constitutions (1268), except as a night or travelling cap. Like the Serjeant's coif of more recent date, it was white in colour; and, as an appanage of the legal profession, it was worn by judges and pleaders alike. The strings were used to tie the coif to the head, and were fastened under the chin. It has been plausibly suggested that the Black Cap which judges assume, when passing sentence of death, was a device for concealing the coif, ecclesiastical justices being debarred from pronouncing capital sentence; and in this connexion we may recall the constitutional tradition, which requires the Bishops to withdraw when issues involving life or death come before the Parliamentary Courts.

We have spoken of graduation in relation to law. As an explanation of the phrase, nothing could be more apt than a passage in Coke's "Third Report," which, although somewhat lengthy, deserves to be cited in toto:

"As there be in the Universities of Cambridge and Oxford divers degrees, as general Sophisters, Bachelors, Masters, Doctors, of whom be chosen men for eminent and judicial places, both in the Church and Ecclesiastical Courts, so in the profession of the law there are Mootemen [i.e., students], which are those that argue readers' cases in houses of Chancery, both in terms and grand vacations. Of Mootemen, after eight years' study or thereabouts, are chosen Utter-barristers; of these are chosen Readers in inns of Chancery. Of Utter-barristers after they have been of that degree twelve years at least, are chosen Benchers or Ancients; of which one, that is of the puisne sort, reads yearly in summer vacation, and is called a Single Reader; and one of the Ancients that had formerly read reads in Lent vacation and is called a Double Reader, and commonly it is between his first and second reading about nine or ten years. And out of these the King makes choice of his Attorney and Solicitor General, his Attorney of the Court of Wards and Liveries, and Attorney of the Duchy; and of these Readers are Serjeants elected by the King, and are, by the King's writ, called ad statum et gradum servientis ad legem; and out of these the King electeth one, two, or three, as please him, to be Serjeants, which are called the King's Serjeants; of Serjeants are by the King also constituted the honourable and reverend Judges and sages of the law. For the young student, which most commonly cometh from one of the Universities, for his entrance or beginning were first instituted and erected eight Houses of Chancery, to learn there the elements of the law, that is to say, Clifford's inn, Lyon's inn, Clement's inn, Staple's inn, Furnival's inn, Thavie's inn, and New inn; and each of these consists of forty or thereabouts; for the Readers, Utter-barristers, Mootemen, and inferior Students are four famous and renowned Colleges or Houses of Court, called the Inner Temple, to which the first three Houses of Chancery appertain; Gray's Inn, to which the next two belong; Lincoln's Inn, which enjoyeth the last two but one; and the Middle Temple, which hath only the last; each of the Houses of Court consists of Readers above twenty; of Utter-barristers above thrice so many; of young Gentlemen about the number of eight or nine score, who there spend their time in study of law and in commendable exercises fit for gentlemen; the Judges of the law and Serjeants, being commonly above the number of twenty, are equally distinguished into two higher and more eminent Houses, called Serjeant's Inn; all these are not far distant from one another, and altogether do make the most famous university for profession of law only, or of any one human science, that is in the world, and advanceth itself above all others quantum inter viburna cupressus. In which Houses of Court and Chancery the readings and other exercises of the law therein continually used are most excellent and behoofful for attaining to the knowledge of these laws; and of these things the taste shall suffice, for they would require, if they should be treated of, a treatise by itself."

This passage has been cited for the special purpose of exhibiting the close affinity between the Universities and the Law, for which, it will be generally conceded, it is admirably suited. It is necessary, however, that it should be pointed out that the learned Coke was writing at and of a period when the system was fullblown. In the early period when "hostels" for apprentices of the law began to be, no distinction obtained into Inns of Court and Inns of Chancery. These apprentices were, originally, just what the term implies, but their importance became greater until their representative is now the ordinary barrister-at-law.

In the year 1292—a date of some significance for us, not only in the immediate context, but with reference to other portions of the work—the King (Edward I.) promulgated an ordinance "De Attornatis et Apprenticiis" in which he enjoined on John de Metingham and his fellows that they should, at their discretion, "provide and ordain from every county certain attorneys and lawyers of the best and most apt for their learning and skill, who might do service to his court and that people, and those so chosen only, and no other, should follow his court and transact the affairs therein, the said King and his council deeming the number of seven score sufficient for that employment, but leaving it to the discretion of the judges to add to or diminish the number, as they should see fit" (Dugdale's Tr.).

Serjeant Pulling is somewhat perplexed concerning the precise position of the apprenticii ad legem at the time of this edict. He, however, hazards the conjecture that "by the apprentices were meant the advanced students, or learners of the law, who, as pupils or assistants to the Serjeants of the Coif, had obtained an insight into practice, and perhaps also there were included the more irregular followers of the law—the dilettante practitioners and Cleri Causidici, who continued to follow the law in the secular courts in spite of repeated prohibitions and objections."

With the foundation and growth of the Inns of Court, the apprentices—the better sort at least—obtained full recognition as practitioners; and at the close of the fourteenth century their reputation had become so considerable that the great apprentices had formed themselves into a distinct order, in which they stood next to serjeants-at-law, the gradation being as follows:

(i) Serjeants-at-law. (ii) Nobiliores, or great apprentices. (iii) Other apprentices who followed the law. (iv) Apprentices of less estate, and attorneys.

The term "apprentice-at-law" yielded to apprenticius ad barros, and that again to "utter-barrister," corresponding to the modern "barrister-at-law." Not all the students admitted at an inn were "called" to the bar, the truth being that only a small proportion received that distinction. In 1596 an arrangement was made by the Judges and Benchers of the four Inns of Court, by which it was agreed:

"That hereafter none shall be admitted to the Barr but only such as be at the least seven years' continuance, and have kept the exercises within the House and abroad in Inns of Chancery, according to the orders of the House:

"Item, that there be in one year only four Utter-Barristers called in any Inne of Court (that is to say) in Easter Term, two, and, in Michaelmas Term, two," etc.

Again, certain orders, made for the better government of the Inns of Court and Chancery in 1624 provided that not more than eight members of any one inn should be called to the Bar in any one year, and that no Utter-Barristers, except such as had been Readers in Houses of Chancery, should begin to practise publicly at any bar at Westminster until they had been three years at the bar.

As regards the Inns of Court, their precise origin cannot be clearly ascertained. We hear of them in the reign of Edward III., mention being made in the Year Book of 1354 of "les apprentices en Hostells." In the opinion of Lord Mansfield they were at the outset "voluntary societies," for they "are," he says, "not corporations and have no charter from the Crown." Serjeant Pulling holds that the smaller houses were hired by the apprentices, and then by lease or purchase possession became permanent. The greater houses, he thinks, had a similar history. This belief is borne out by what happened in the case of the Temple. In 1324, when the King granted the Knights Hospitallers the New Temple, the latter let the Temple to "divers apprentices of the law that came from Thaveis Inn in Holborn." This was evidently in existence at the time. How long it had existed prior to 1324 cannot be stated, but in his will dated 1348, and enrolled in the Court of Hustings of the City of London, John Tavye, citizen and armourer, devised to his wife Alicia "illud hospitium, in quo apprenticii legis habitare solebant." In all probability, therefore, the existence of the inn did not go back farther than the lifetime of the armourer. The notice seems to show also that the inns received their names not from Serjeants, as fathers of the apprentices, but from the actual owners.

Till about the commencement of the sixteenth century we are wholly in the dark as to the management of the inns. We then hear of governors, treasurers, and the control of affairs in the different houses lay with the senior members of the societies, who were styled ancients or benchers. The apprentices may be regarded as inchoate Serjeants—Serjeants in the making, persons on the way to become Serjeants. The Serjeants had their own inns; and, on joining the brotherhood, the newly-appointed dignitary was rung out of the inn to which he had previously belonged by the chapel bell.

From Fortescue's "De Laudibus Legum Angliae," written in France after his withdrawal to that country with Queen Margaret in 1463, we learn that the rule was, when the degree of serjeant-at-law was to be conferred, for the Chief Justice of the Common Pleas, with the consent of the other justices, to nominate for the purpose seven or eight of the most experienced professors of the common law. Thereupon the Lord Chancellor issued a writ to each of them, summoning them to appear under a heavy penalty, and take upon themselves the state and degree of serjeant-at-law. On duly presenting themselves they affirmed on oath that they would be ready on a day and at a place, which were then determined, to assume the said state and degree, and that they would give gold according to custom of the realm in such cases ("dabit aurum secundum consuetudinem regni in hoc casu usitatam").

On the date in question a feast was begun, which continued for seven days, and this, with other ceremonies, involved an expenditure, on the part of each debutant of some 1,600 nobles or 400 marks. A portion of this amount went to the purchase of gold rings, and Fortescue tells us that, when he was called to the degree of serjeant, the rings he gave away cost him L40. These differed in value in proportion to the dignity of the persons to whom they were presented. The most costly were those of the value of 26s. 8d., which were given to every prince, duke, and archbishop attending the ceremony, as also to the Lord Chancellor and Treasurer of England. The Keeper of the Privy Seal, the Chief Justices, the Chief Baron of the Exchequer, and every earl and bishop present received one of the value of 20s.; while every baron of Parliament, every abbot, every distinguished prelate (notabili prelato), and every eminent knight there present had one of 13s. 4d. Similar gifts were made to the Keeper of the Rolls of the King's Chancery, and to each of the justices. Rings of inferior value were presented to every baron of the Exchequer, chamberlain, officer, and principal person serving in the King's courts, according to their rank; and thus almost every clerk, especially if he were of the Common Pleas, obtained a share of the new Serjeant's liberality. His private friends were not forgotten, rings being distributed among them also. It has been computed that the sum of 400 marks in 1429 would be equivalent to L2,660 of our present money; hence we need not wonder that lawyers either too poor or too economical to welcome this heavy burden sought to evade the honour. In the time of Henry V. six grave and famous apprentices respectfully declined the elevation, but in vain. They were called before Parliament, and there bidden to take upon them the state and degree of Serjeant. Eventually they did so, and certain of them, as we learn from Sir Edward Coke, worthily served the King in the principal offices of the law.

The reader will not fail to have observed the expression "give gold." This, with the particulars adduced respecting the worth of the rings, suggests that the articles were esteemed, not for their commemorative character or artistic interest, but for their sheer pecuniary value. That this was the case is pretty evident from the fact that, in the reign of Charles II., Lord Chief Justice Kelynge, addressing one of the new Serjeants, rebuked them for their gift of rings weighing no more than 18s. each; and he cited Fortescue as saying, "The rings given to the Chief Justices and the Chief Baron ought to weigh 20s. a-piece." To prevent misunderstanding, he added that he "spoke not this, expecting a recompense," but that it might not be drawn into a precedent. In point of fact, Fortescue refers to value, not weight; but it appears to have been customary to calculate the value of the rings by the worth of their weight in gold.

The creation of Serjeants took place in the hall of the Serjeants' Inn, of which the Lord Chief Justice for the time being was a member. The newly called arrived in a black robe, attended by his clerk, who brought with him on his arm a scarlet hood and a coif. The Chief Justice, having solemnly addressed the Serjeants, began the ceremony of investiture, first placing the coif on the head of each of them and tying it under his chin; and then putting the hood upon his right side and over his right shoulder. The Serjeant thereupon departed, and doffing his black robe assumed a parti-coloured robe of black and murrey (dark red) and hood of the same colours. Thus arrayed he proceeded to Westminster, his man carrying before him the scarlet hood and cornered cap upon it.

Cornered caps were worn by the judges and Serjeants when they attended church in state. Down to the time of the Reformation it was the practice for them to visit St. Thomas of Acons in Cheapside, and, having made their offerings there, to go on to St. Paul's, where they offered at the rood of the north door at St. Erkenwald's shrine. This custom was always observed on the admission of new Serjeants, who set forth on this pious errand after dining. At St. Paul's each of them was appointed to his pillar in the nave of the cathedral by the steward and controller of the feast. It was at the parvise, or porch, of old St. Paul's, or at their allotted pillars, that Serjeants met their clients for consultation. They assisted the rich pur son donaut and the poor for nothing, and there appears to have been no question of any intervention by attorneys. In this connexion it may be worth while to cite the ancient oath which was taken by members of the order:

"You shall swear well and truly to serve the King's people as one of the serjeants-at-law; and you shall truly counsel them that you be retained with after your cunning; and you shall not defer, or delay their causes willingly, for covetousness of money, or other things that may turn you to profit, and you shall give due attendance accordingly; so help you God."

A few months before the Great Fire of London, in which old St. Paul's was consumed with its parvise and pillars, Dugdale wrote: "At St. Paul's each lawyer and serjeant at his pillar heard his client's cause and took notes thereof upon his knee, as they do at Guildhall at this day." He adds: "After the Serjeants' feast ended they do still go to Paul's in their habits, and there choose their pillar whereat to hear their client's cause (if any come) in memory of that old custom."

Naturally, the Order of the Coif was jealous of its distinctions and privileges; and the following incident, for which we are indebted to the late Mr. Serjeant Ballantine, will serve to illustrate the point.

"I have now," he says, "taken my readers back to my old inn. I will venture to surround it with all the halo to which it is entitled. We were, and had from time immemorial been, connected with the Corporation of the City of London, and inasmuch as the greatest compliment appreciated by that august body was annually paid to us, we were doubtless once upon a time of no small importance ourselves. We received an invitation to dine at the Lord Mayor's on November 9, and arrayed in robes that gave us as much claim to notice as men in armour, and, preceded by a personage known as the City Marshal, we were assigned seats amongst the principal guests at that great festival, and it was really a sight worthy of notice....

"Upon this occasion it was the office of one of the high officers of the Corporation, no less a dignitary than the Common Serjeant[8], personally to convey to us the invitation on the first day of Michaelmas term at our inn. Sir Thomas Chambers, when he occupied this office, was accustomed to commit a most amusing blunder. Whether moved by some idea of his own dignity, or acting under civic instruction, I am unable to say, but when he came to perform his task he addressed himself solely to the Judges, not even naming the Serjeants, although the former were asked only in that capacity, and were included with the Lord Chancellor and the Equity Judges specially in their official capacity, and invited by the Lord Mayor himself personally. The Common Serjeant was not, probably, aware that, whilst it in no respect derogated from his dignity to convey a message from one great corporation to another, he was performing the duty of a butler in conveying an invitation to individuals belonging to it. There was a worthy member of our body, Mr. Serjeant Woolrych, who had written a most exhaustive book upon the sewers, and was very learned about City customs, and who exercised his mind greatly upon the blunder into which the Common Serjeant had tumbled, and wanted me, as treasurer, to call attention to it. He considered that this was due not only to common humanity, but to our dignity. I was, however, deaf to his entreaties. I do not remember dining upon more than one occasion in my official capacity. On this occasion the scarlet robes and heavy, cumbrous wig, necessary to be worn, destroyed all possibility of enjoyment."

Serjeant Ballantine alludes to himself as treasurer. He was the last to fill that office, and it fell to his lot, as such, to wind up the affairs of the ancient society, and so, in a sense, to perform its obsequies. The fiat had gone forth that no judge should be required henceforth to take or to have taken the degree of serjeant-at-law (36 and 37 Vict., c. 66, s. 8), and, as this was tantamount to the abolition of the order, it was resolved to sell the property of the inn. The last meeting was held on April 27, 1877.



JUDICIAL

CHAPTER XI

THE JUDGMENT OF GOD

Ancient judicial theory and practice comprehended not merely trials before a regular tribunal, in which the merits of a case were duly ascertained by the joint efforts of judge, counsel, and assize, but also an alternative method of arriving at the same result—namely, a solemn appeal to the bar of Almighty God. This reference was most common in criminal cases, but by no means restricted to them; resort was had to it in pleas respecting freehold, in writs of right, in warranty of land or of goods sold; debts upon mortgage or promise, denial of suretyship by sureties, validity of charters, manumission, questions concerning services, etc. All such quarrels might be submitted to the issue of the duel, which was pre eminently the means of invoking the judgment of God. To us no proceeding appears less effectual or more cruel, but even so wise a man as Dante admitted the fairness of it.

Before treating of the duel it is expedient to deal with some Anglo-Saxon customs, which survived the Norman Conquest, and were founded on the same principle as the duel. The simplest of these processes was purgation by oath. Let us take the case of a person accused of theft. If he was a freeman and had hitherto borne a good name, all that was necessary was that he should purge himself by his oath. Suppose, however, that he had been previously inculpated. In that case he had to clear himself with what was termed his twelfth hand—that is to say, twelve lawful men had to be nominated, who would swear to his innocence. Should they refuse, there was nothing for it but some form of the ordeal—a subject which will engage our attention presently. Meanwhile it may be pointed out that purgation by oath was itself a distinct appeal to the Almighty. It was believed that perjured persons incurred the danger of becoming dwarfs, or of their hands remaining attached to the Gospels or relics on which they swore. Persons guilty of this offence were compelled to purge themselves by the ordeal.

The system, resting on the sanctions of religion and honour, was not suited for general application, and there is no doubt that it was abused. Confining ourselves to University experience, the bad effects of the practice are exposed in a protest entered by Dr. Gascoigne in the Chancellor's Court-book at Oxford, wherein he cautions his successors to exercise the greatest care in admitting people to the privilege, and counsels them to withhold the name of the accuser from the accused. He states that cases have come under his notice in which individuals have not only perjured themselves, but in private have not blushed to acknowledge it; and he shows very plainly the futility of the system by affirming that if a townsman objected to anyone claiming compurgation, he ran a risk of being assaulted, maimed, and even murdered. The date of this entry is 1443. It may be added that the majority of the cases were those of incontinence; and among other charges mention is made of embezzlement and attachment of a new document to an old seal.

For details of procedure we may glance at the very full accounts preserved in the records of the City of London, where there were in operation three sorts or forms of compurgation, by which persons appealed, impleaded, and accused might obtain acquittal. The first was termed the Great Law, and had respect to murder and homicide. The second, the Middle Law, regarded the crime of mayhem, or corporal hurt, by which a man lost the use of any member that was or might be any defence to him in battle. The third law applied to insults, batteries, wounds, blows, torts, effusion of blood, and similar injuries inflicted at the season of the Nativity, the week of Pasque, and at Pentecost.

An accused person desiring to purge himself by the Great Law was required to observe the following order: He had to make an oath in his own person that he was innocent touching the felony and breach of the King's peace, and the entire crime laid to his charge—"So help me God and these hallows!" (i.e., the Gospels on which he was sworn). After that six men had to swear that, according to their privity and knowledge, he had made a sound oath. Then the accused repeated the oath, and was supported by the sworn testimony of six more witnesses. So it went on until thirty-six sworn men had testified in his favour.

With regard to the impanelling of this body it was the custom in London to choose one of the number from the part of the city east of Walbrook and the other half from the part west of Walbrook. They were to be of the liberty of the city, honourable men not kinsmen of the accused; and the selection was made in his absence. He was then summoned, and the list of names having been read over to him, he might indicate to the Mayor and Aldermen any that he held suspect. If he produced reasonable grounds, the names were erased and others substituted for them. When, at length, he was content, he placed himself in the hands of this jury as regarded the purgation of the charge. The names of the thirty-six persons were delivered to the Justices of the King, before whom the accused had subsequently to appear and wage his law.

The same rules were observed in the case of the Middle Law, except that the accused had to make only three oaths and a panel of eighteen sufficed. In the Third Law the accused made no more than one oath and the panel was reduced to six. These were to be of his vicinage, but not bound to him by the tie whether of blood or marriage. Where a non-freeman was charged with homicide, forty-two compurgators were required, this disadvantage being due to the prejudice of the citizens against "foreigners," of which further evidence will be adduced later. On the other hand if the prosecution were on the part of the Crown, seven compurgators were deemed enough, the reason being that the King had not the personal interest in bringing a criminal to justice of a private appellor.

The date of the election of the compurgators was fixed, at the will of the Justices, and on that day fortnight the accused had to answer the appeal, unless the Justices chose to assign a longer term. That is, according to one statement. Another version sets forth that, by the law and liberty of the city, a term of forty days was given for answer to an appeal in a particular case; and this may mark the extreme limit usual. Probably also it may be connected with the period during which a criminal was commonly allowed to avail himself of the right of sanctuary. If the accused did not appear on the day named for the trial, he was outlawed at the folkmoot. Meanwhile he was delivered in bail to twelve men, provided that there was some surety sufficient for the payment of a hundred shillings in case they did not produce him at the appointed time. Anyone appealed and attached for homicide could not demand "recognition" until he had acquitted himself of the appeal made against him; and meanwhile, if he could not find sureties, he was committed to prison. If the accused was outlawed and abjured the realm, the sureties were acquitted out of respect for the Church.

By the word "recognition" in the above description is apparently intended an inquisition into the circumstances by an assize or jury of twelve sworn men under the presidency of the Justices. In the case of an appeal—that is, where there was a private prosecutor, who was bound to have some interest in the matter, e.g., as a blood-relation—this was not allowed, and the onus of proving his innocence was thrown on the accused.

It was otherwise when a man was taxed with homicide by the voice of public fame. He was then attached either by pledges or by imprisonment; and the Justices held a very strict and careful inquisition into the case, as the result of which the accused might be wholly absolved, or he might be compelled to resort to compurgation. The compurgators, few or many, were at once judge, jury, and witnesses; and the final issue of the proceedings lay with them and the accused himself, the Mayor and Alderman making the preliminary arrangements and the King's Justices seeing that the forms were duly observed.

We saw at the outset that purgation by oath was a privilege only permitted to persons of good reputation, and that failure to secure the testimony of his neighbours to his innocence, where his reputation had been damaged, subjected a man to the judgment of water or fire. In Saxon times every freeman had his borh or surety, who presented him, if he was accused. Should he be tyht bysig, of evil repute, he was forced to undergo the triple ordeal without more ado; but if his lord gave him a good character and seven of his neighbours came forward and swore that oath had never failed him and that he had never paid theof gyld (fine for thieving), then he might make his election between a pound-worth oath or single ordeal. If the seven persons summoned declined to take the oath, the triple ordeal was inevitable, and if the guilt of the accused was established by this process, he had to restore to the accuser twofold, pay a fine to his lord, and find sureties that he would abstain from evil for the future. If he absconded and avoided the ordeal, the borh was obliged to pay the ceap-gyld or monetary value of the article stolen to the accuser and the fine to the lord. If the accused happened to be theow man (servant), and he failed in the ordeal, the law was that he should be branded the first time; the second time, there was no bot, or reparation, but the head! Finally, the appellor was obliged to swear by seven lawful men, who were to be named, that he had laid upon the accused the necessity of the ordeal neither from hatred nor from any other cause but that he might acquire his right.

There were various forms of ordeal. A man might be tried by fire or water, and there was a cold-water as well as a hot-water test. Moreover, the ordeal might be single or triple, according to the degree of immersion or the weight of the iron employed. The laws of Athelstan prescribe that in the hot-water ordeal, if single, the hand should dive after the stone up to the wrist; if triple, up to the elbow. Similarly, by the laws of King Edgar, the weight of the iron for the single ordeal was to be one pound, and for the triple ordeal three pounds.

The ordeal, being the Judgment of God, was distinctly a religious ceremony, and the whole of the proceedings were in the hands of the clergy. The three days following the accusations were spent in prayer and fasting, and the rite, varied according to the nature of the ordeal, was performed in a church.

THE JUDGMENT OF THE GLOWING IRON

The iron was placed before the altar, whence the priest, clad in full canonicals with the exception of the cope, removed it with a pair of tongs to the fire, singing as he did so the hymn of the Three Children, Benedicite, Omnia, Opera. Over the place where the fire was he then recited the prayer: "Bless, O Lord God, this place, that there may be for us in it sanctity, chastity, virtue, and victory, and sanctimony, humility, goodness, gentleness, and plenitude of law, and obedience to God the Father, and the Son, and the Holy Ghost."[9]

We learn from the laws of Athelstan that no man was permitted to enter the church, after the fire had been borne in wherein the ordeal was to be heated, with the exception of the mass priest and the accused; and the latter had to measure with his feet nine feet from the stake to the mark. When the ordeal was ready two men were admitted on either side, who certified that the iron was of the required heat; and then an equal number of witnesses on either side having been summoned, were ranged along the church on each side of the ordeal. All were to be fasting and abstinent from their wives on the previous night. The mass priest then sprinkled them with holy water, let each of them taste the holy water, and gave them the book of the Gospels and the image of Christ's rood to kiss.

Whilst the iron was heating the priest celebrated mass, and after he had taken the Eucharist, he adjured the person who was to be tried, and made him also take the Communion. From the time the hallowing was begun no one was allowed to mend the fire, but the iron rested on the hot embers until the last collect. It was then laid on the stapula, and the priest, having sprinkled holy water over it, recited the prayer: "The blessing of God the Father, the Son, and the Holy Ghost, descend upon this iron for the discerning of the right judgment of God." Meanwhile all were enjoined to observe complete silence "except that they earnestly pray to Almighty God that He make manifest what is soothest."

The accused then proceeded to the ordeal and carried the iron the measured distance—nine feet, divided into three equal parts, over which the person had to pass in as many steps regulated by signal. His hand was thereupon enclosed in an envelope under seal, and so remained until the expiration of three days, when the envelope was removed and an examination took place to see whether the hand was foul or clean within. If festering blood was found in the track of the iron, the accused was judged to be guilty; if otherwise, he stood acquitted. An infraction of the rules not only rendered the ordeal void, but was punishable by a fine of 120 shillings.

THE JUDGMENT OF THE PLOUGHSHARES

Instead of carrying iron of a given weight a stipulated distance, an accused person might traverse barefoot a certain space in which nine hot ploughshares were laid lengthwise. To this species of judgment Queen Emma, mother of Edward the Confessor, is alleged to have submitted, when charged with adultery with Alwyn, Bishop of Winchester. The precise nature of this trial is more than usually obscure, and there is some reason for doubting whether Blackstone's account is accurate. He states that the accused person was blindfolded and that the ploughshares were placed at irregular intervals—evidently with the design that the person might escape contact with some of the irons: possibly all. Blackstone's authority, Rudborn, in his story of the trial of Queen Emma, conveys a totally different impression of the proceedings—at any rate, on that occasion. He says distinctly that she was not blindfolded, and that she pressed each ploughshare with the whole weight of her body: "Emma vero nullam mamphoram sive pannum ante oculos habens—super novem vomeres novem passus faciens et singulos eorum totius corporis pleno pressens pondere."

On such occasions the following collect was in use: "Lord God Omnipotent ... we invoke Thee, and, as suppliants, exhort Thy majesty, that in this judgment and test Thou wilt order to be of no avail all the wiles of diabolical fraud and ingenuity, the incantations either of men or of women; also the properties of herbs; so that to all those standing around, it may be apparent that Thou art just and lovest justice, and that there is none who may resist Thy majesty. And so, O Lord, Ruler of the heavens and the earth, Creator of the waters, King of Thy whole creation, in Thy holy name and strength, we bless these ploughshares, that they may render a true judgment; so that, if it be so that that man is innocent of the charge in this matter which we are discussing and treating of amongst us, who walks over them with naked feet; Thou, O omnipotent God, as Thou didst deliver the three youths from the fiery furnace, and Susanna from the false charge, and Daniel from the den of lions—so that Thou mayest see fit, by Thy potent strength, to preserve the feet of the innocent safe and uninjured. If, moreover, that man be guilty in the aforesaid matter; and, the Devil persuading, shall have dared to tempt Thy power, and shall walk over them; do Thou, who art just and a Judge, make a manifest burn to appear on his feet, to Thy honour and praise and glory; to the constancy and confidence in Thy name, moreover, of us Thy servants; to the confusion and repentance of their sins of the perfidious and blind; so that, against their will, they may perceive, what willingly they would not—that Thou, living and reigning from ages to ages, art the judge of the living and the dead. Amen."

THE JUDGMENT OF THE BOILING WATER

When the ordeal was by boiling water, the priest first performed mass and then descended to the place of trial, bearing a cross and a book of the gospels. After he had chanted a litany, he exorcized and blessed the water, which was to be boiled. He then stripped the accused of his clothes and arrayed him in ecclesiastical vestment of the kind worn by an exorcist or a deacon; sprinkled some of the water over him, caused him to drink of it, and gave him the cross and the gospels to kiss. The priest having said, "I have given to thee this water for a sign to-day," wood was laid under the cauldron, which might be of iron, of brass, of lead or of clay. As the water grew warmer, prayers were recited by the priest, and it continued to be heated until it lowed to boiling. The accused then said the Lord's Prayer, and signed himself with the sign of the cross; and the cauldron having been quickly set down beside the fire, the judge held suspended in the water a stone, which the accused, in the name of God, had to draw forth at the depth of his wrist or his elbow, according as the ordeal was single or triple. On the third day his hand was inspected, and his innocence or guilt determined.

THE JUDGMENT OF COLD WATER

The cold water ordeal is in some ways the most interesting of all. In this instance the accused was thrown into a pond or tank, which was technically described as the fossa or "pit." If he floated, he was adjudged guilty; if he sank, his innocence was regarded as divinely proved. It is sometimes stated "if he floated without any appearance of swimming," but swimming appears to have been precluded if it be true that his thumbs were tied to his toes, or he was bound hand and foot! Grimm explains the principle of this test by tracing it to an old heathen superstition that the holy element, the pure stream, would receive no misdoer within it. King James I. in his "Demonologie," however, lays it down in the case of witches that they having renounced their baptism, the element with which the holy rite is performed will justly reject them. This elucidation is in exact accord with the ancient formula of consecration pronounced over the accused, which was as follows:

"May omnipotent God, who did order baptism to be made by water, and did grant remission of sins to men through baptism; may He, through His mercy, decree a right judgment through that water. If, namely thou art guilty in that matter, may the water which received thee in baptism not receive thee now; if however, thou art innocent, may the water which receive thee in baptism receive thee now. Through Christ our Lord."

The priest afterwards exorcized the water, saying to it:

"I adjure thee, water, in the name of the Father Almighty, who did create thee in the beginning, who also did order thee to be separated from the water above ... that in no manner thou receive this man, if he be in any way guilty of the charge brought against him; by deed, namely, or by consent, or by knowledge, or in any way; but make him to swim above thee. And may no process be employed against thee, and no magic, which may be able to conceal that" [i.e., the circumstance of his guilt].

THE JUDGMENT OF THE MORSEL

A fifth form of the ordeal was the test of eating consecrated bread and cheese. This was known as the corsned, or morsel of execration. The priest wrote the Lord's Prayer on the bread, of which he then weighed out a certain quantity—ten pennyweights—and so likewise with the cheese. Under the right foot of the accused he set a cross of poplar wood, and holding another cross of the same material over the man's head, threw over his head the theft written on a tablet. He placed the bread and cheese at the same moment in the mouth of the accused, and, on doing so, recited the conjuration:

"I conjure thee, O man, by the Father and the Son and the Holy Ghost and by the four-and-twenty elders, who daily sound praises before God, and by the twelve patriarchs, the twelve prophets, the twelve apostles, the evangelists, martyrs, confessors, and virgins, by all the saints and by our Redeemer, our Lord Jesus Christ, who for our salvation and for our sins did suffer His hands to be affixed to the cross; that if thou wast a partner in this theft or didst know of it, or hadst any fault, that bread and cheese may not pass thy gullet and throat, but that thou mayest tremble like an aspen-leaf, Amen; and not have rest, O man, until thou dost vomit it forth with blood, if thou hast committed aught in the matter of the aforesaid theft. Through Him who liveth."

The following prayer and exorcism were also used and ordered to be repeated three times:

"Holy Father, omnipotent, eternal God, maker of all things visible, and of all things spiritual, who dost look into secret places, and dost know all things, who dost search the hearts of men, and dost rule as God, I pray Thee, hear the words of my prayer; that whoever has committed or carried out or consented to that theft, that bread and cheese may not be able to pass through his throat.

"I exorcize thee, most unclean dragon, ancient serpent, dark night, by the word of truth, and the sign of light, by our Lord Jesus Christ, the immaculate Lamb generated by the Most High, conceived of the Holy Ghost, born of the Virgin Mary—Whose coming Gabriel the archangel did announce; Whom seeing, John did call out: This is the living and true Son of God—that in no wise mayest thou permit that man to eat this bread and cheese, who has committed this theft or consented to it or advised it. Adjured by Him who is to come to judge the quick and the dead, so thou close his throat with a band—not, however, unto death."

THE JUDGMENT OF THE PSALTER

Thieves were sometimes tried by means of two pieces of wood and a psalter. One of the pieces having a button on the top was inserted in the psalter above the verse: "Thou art just, O Lord, and righteous are Thy judgments." The book was then closed and pressed firm, and then the projecting button was placed in a hole made in the other piece of wood, from which the psalter now hung. The wood was held by two persons on opposite sides of the psalter, and the accused having been placed before them, one of them said thrice to the other: "He has the thing" (i.e., the stolen article). The other thrice answered: "He has it not." Thereupon the priest declared: "This He will deign to make manifest unto us, by Whose judgment are ruled things terrestrial and things celestial. Thou art just, O Lord, and righteous are Thy judgments. Turn away the evils of Thy enemies, and destroy them with Thy truth."

The fate of the accused depended on the miraculous turning of the psalter. If the direction was from left to right he was innocent; if from right to left, he was guilty. It would appear from the prayer, in which the priest invoked Divine revelation, that he held the book, and therefore it is natural to assume that, consciously or unconsciously, his opinion must have influenced its movement. The prayer ran:

"Omnipotent, everlasting God, who didst create all things from nothing, and didst form man from the clay of the earth, we pray Thee, as suppliants by the intercession of Mary the most holy Mother of God ... that Thou do make trial for us concerning this matter about which we are uncertain; so that if so be that this man is guiltless, that book which we hold in our hands shall [in revolving] follow the ordinary course of the sun; but that if he be guilty that book shall move backwards."

There were other forms of procedure, in some of which, as in the trial of the cross and the touching of the bier, the supposed criminal was confronted with his victim. Ordeals were abolished in England in the year 1219; but the tradition did not die, and in the time of the Commonwealth, Hopkins, the notorious witchfinder, ridiculed in "Hudibras," employed the cold-water ordeal for the conviction of witches. "The suspected person," says Sir Walter Scott, "was wrapped in a sheet, having the great toes and thumbs tied together, and so dragged through a pond or river. If she sank, it was received in favour of the accused; but if the body floated (which must have occurred ten times for once, if it was placed with care on the surface of the water) the accused was condemned."

That the issue of the ordeal might be arranged appears to have been recognized even in the Middle Ages. Thus, fifty Englishmen, it is said, having been ordered by William Rufus to be tried by the hot iron, every one of them escaped unhurt. Thereupon the King announced that he would try them again by the judgment of his court and not abide by the so-called judgment of God, "which was made favourable or unfavourable at any man's pleasure." By the Assize of Northampton (1176) suspected persons, who had been acquitted by the water ordeal, were liable to banishment, though again acquitted by the "judgment of God."

Trial by battle, though obviously based on the same principle, was technically distinguished from the ordeal or judgment. The former appears to have arisen in the countries of the North, where it was known as the holmgang, the combats taking place on islands. Among the English this mode of settling differences was not much in favour either before or after the Norman Conquest; and the statutes of William I. contain provisions whereby the natives were permitted to substitute the more familiar ordeal for the trial by battle.

"It was also decreed there that if a Frenchman summon an Englishman for perjury or murder, theft, homicide, or 'ran'—as the English call evident rape, which cannot be denied—the Englishman shall defend himself as he prefers, either through the ordeal of iron or through wager of battle. But if the Englishman be infirm, he shall find another who will do it for him. If one of them shall be vanquished he shall pay a fine of forty shillings to the King. If an Englishman summon a Frenchman, and be unwilling to prove his charge by judgment or by wager of battle, I will, nevertheless, that the Frenchman purge himself by an informal oath."

In subsequent reigns wager of battle was infinitely more common, and great encouragement was given to it by the martial race, whose ideas and habits were imposed on the subject population. The principles were established and the procedure regulated by the "Assises de Jerusalem" (1099), whose ordinances were received and recognized throughout Europe as a code of law and honour. For a general statement of conditions and effects we cannot do better than turn to the pages of the almost impeccable Gibbon.

"The trial by battle," he says, "was established in all criminal cases which affected the life, or limb, or honour, of any person; and in all civil transactions of or above the value of one mark of silver. It appears that in criminal cases the combat was the privilege of the accuser, who, except in the charge of treason, avenged his personal injury, or the death of those persons whom he had a right to represent; but wherever, from the nature of the charge, testimony could be obtained, it was necessary for him to produce witnesses of the fact. In civil causes the combat was not allowed as the means of establishing the claim of the demandant; but he was obliged to produce witnesses, who had, or assumed to have, knowledge of the fact. The combat was then the privilege of the defendant, because he charged the witness with an attempt by perjury to take away his right. He came therefore to be in the same position as the appellant in criminal cases. It was not, then, as a mode of proof that the combat was received, nor as making negative evidence (according to the supposition of Montesquieu), but in every case the right to offer battle was founded on the right to pursue by arms the redress of an injury; and the judicial combat was fought on the same principle, and with the same spirit, as a private duel. Champions were only allowed to women, and to men maimed or past the age of sixty. The consequence of a defeat was death to the person accused, or to the champion, or witness, as well as to the accuser himself; but in civil cases the demandant was punished with infamy and the loss of his suit, while his witness and champion suffered an ignominious death. In many cases it was the option of the judge to award or to refuse the combat; but two are specified in which it was the inevitable result of the challenge: if a faithful vassal gave the lie to his compeer, who unjustly claimed any portion of their lord's demesnes; or if an unsuccessful suitor presumed to impeach the judgment and veracity of the court. He might impeach them, but the terms were severe and perilous: on the same day he successively fought all the members of the tribunal, even those who had been absent; a single defeat was followed by death and infamy; and where none could hope for victory it is highly probable that none would adventure the trial."

Second only in importance to the "Assises de Jerusalem" are the "Grand Coutumier de Normandie" and Beaumanoir's "Coutumes de Beauvoisis." As regards England, the forms of procedure are narrated by Bracton and Britton; and Selden in his treatise "De Duellis" cites a number of cases, both civil and criminal, in which resort was had to trial by battle.

When an appellor offered to do battle in person, it was his duty to say: "Sir, A complains to you of B, who is there, that he has assassinated C; and if he deny it A is ready to prove it with his person against the person of B, and to slay him or make him confess in the space of an hour, and here is his pledge." If he offered to do battle by a champion, the formula was: "Sir, A complains to you of B, that he has assassinated C; and if he deny it A is ready to prove it if he shall not bring his champion on the day; and to slay, etc., and see here his pledge." The defendant replied in the following terms: "Sir, B denies and contradicts the assassination imputed to him by A, and is ready to defend with his person against A's person; and see here his pledge."

The combatants were to be armed according to their quality; and the arms and armour of knights, who should do battle in a case of homicide or assassination, are duly set forth. They had to fight on foot; their lances were to be of equal length, and their shields half-a-foot higher than their persons, and pierced with two openings through which they could see their adversary. The arms had to be shown to the Court, and each champion was obliged to make oath on the Gospels that he had upon him neither writing, charm, nor any other arms than those shown to the Court. The combatants were then placed and fought. Near at hand stood the warders of the field, so that they might catch the words "I repent" in the event of their being uttered. In that case they said to the other party, "You have done enough"; and he who had been vanquished was taken to the lord, by whose order he was trained to the gallows and hanged. Similar treatment was paid to a combatant who had been slain, even if he had not said "I repent." The same procedure was observed where the champions were of inferior rank, save that their arms were not knightly. If the case were not one of homicide or assassination, knights fought on horseback and in armour, with the same consequences to the vanquished. His arms were forfeited; and, if the charge were treason, his heirs were deprived of their inheritance. Combatants of lower than knightly rank fought on foot with shields and spears of equal length. If anyone not a knight struck a knight, he lost his right hand, "because of the honour and dignity which a knight has, and ought to have, over all other kinds of persons."

We may now refer to some typical examples. In the reign of Henry III. Hamon le Stare was appealed for robbery by Walter de Bloweberme; and the record is specially interesting on account of a contemporary drawing of the fight and subsequent execution of the vanquished.

In a MS. of Merton College, Oxford, occurs a note of a case in the time of Edward I. R. de B. having demanded the advowson of a church against the Prior of Sens, the latter waged battle. On the appointed day his champion appeared, "and in the open field the duel was fought." The Prior's champion was struck down, and upon this the Prior's attorney came forward and surrendered the advowson. Accordingly, judgment was given that R. should recover seisin, and that the Prior should be in mercy. The same MS. contains a comment by the Judge (Saham) to the effect that if, after battle joined, at the second or third assault the tenant acknowledge the tenement to be the right of the demandant, and for that acknowledgment the demandant grant to the tenant that he shall hold of him for life, and that afterwards the tenement shall revert to him (the demandant), that acknowledgment is as stable as if a fine were levied in a writ of warranty of charter.

In Hil., 29 Edward III., a writ of right was brought by the Bishop of Salisbury against the Earl of Salisbury for the Castle of Salisbury. Battle was waged; but on the accoutrements of the champions being examined by the Justices, a further day was assigned on the ground that the coat of the Bishop's champion had been found to contain several rolls of prayers and charms. In this instance no battle took place, as a compromise was arranged, whereby the Bishop was to pay the Earl 1,500 marks, and judgment was given for the Bishop on the Earl making default. With regard to charms, it may be remarked that there is copied on the fly-leaf of a MS. volume of reports, temp. Edward I. and II., in a contemporary hand, a charm comprising a list of the names of God, to be recited only in special cases, one of which was "par doute de plai." We may add that ecclesiastics not unfrequently retained a champion not for one occasion, but permanently, and he was in receipt of regular pay. Richard de Swinfield, Bishop of Hereford, followed this course, giving a bond to Thomas de Bruges in consideration of the said Thomas performing the duties of champion. Similarly, by a deed dated London, April 28, 42 Henry III., one Henry de Fernbureg was engaged for the sum of 30 marks sterling to be always ready to fight as the Abbot of Glastonbury's champion in defence of the right which he had in the manors of Cranmore and Pucklechurch, against the Bishop of Bath and Wells, the Dean of Wells and other their champions whatsoever.

Naturally, however, the judicial combat was an institution in which the court and the aristocracy had a greater interest than the church. It has been suggested, with much probability, that the office of the King's Champion originated from this custom. In any case, members of the royal house arranged, and even participated in, duels of this order; and one of the best accounts of the practice has been preserved in a long and elaborate epistle addressed to Richard II. by Thomas Duke of Gloucester and Constable of England. The following are extracts:

"The king shall find the field for to fight in. And the lists shall be lx paces of length and xl paces of breadth in good manner; and the earth be firm, stable, and hard, and even, made without great stones, and the earth be plat; and the lists strongly barred round about and a gate in the east and another in the west with good and strong barriers of vij foot of height or more.... The day of battle the King shall be in a sege or scaffold there where they shall be.... When the appellant cometh to his journey, he shall come to the gate of the lists in the east in such manner as he will fight with his arms and weapons assigned to him by the court, and there he shall abide till he be led in by the Constable, so that when he is comen to the said gate, the Constable and Marshal shall go thither. And the Constable shall ask him what man he is which is comen armed to the gate of the lists, and what name he hath, and for what cause he is comen. And the appellant shall answer, 'I am such a man, A. de K., the appellant, the which is comen to this journey, &c, for to do, &c.' And then the Constable shall open the visor of his bassinet, so that he may plainly see his visage, and if it be the same man that is the appellant, then shall he make open the gates of the lists, and shall make him enter with the same arms, points, victuals and other lawful necessaries upon him, and also his counsel with him, and then he shall lead him afore the King, and then to his tent, where he shall abide till the defendant be comen. In the same manner it shall be done of the defendant save that he shall enter in at the west gate of the lists.