22
THE GREEN BAG
it could hardly be conceived. That class lived largely by, what we should call, crimes of violence; therefore it was essential that conviction for trespass vi et armis, for high way robbery, for arson, and for homicide should be difficult. And so we find that normally the perpetrator of a felony could only be accused by an eye witness, and that when brought to trial and the facts of the crime established, the prisoner could prove an innocent animus by judgment of God, in voked through battle. Presently, as the jury came in, a stage was reached where the appellee in felony had the choice of telling his own story, or of resorting at once to the combat. If he went into the evidence the court might dismiss the appeal. In 1 2 20 the Earl of Winchester, through his bailiff, appealed John of Marston for felony, because he had abducted one Maud, the Earl's ward. Marston appeared and defended the felony, "but was willing to tell the truth." His defense in substance was that the Earl wishing to retain Maud's estate in his family, took steps to make Maud a nun, whereupon the lady sent for John and having told him the story, married him. Thereafter the Earl's party seized Maud intending to carry her on horseback to a convent, which he, John, could not prevent, being inferior in force to the enemy. Then Maud slipped off her horse and ran to John who rode away with her, and this was the felony complained of. After further testimony the court ad journed pending the arrival of witnesses. Selden Soc. Pleas of the Crown, Case 202. You perceive what the administration of criminal justice amounted to as against the armed class. Mr. Maitland, the learned editor of the Selden Society's Pleas of the Crown, certainly does not exaggerate when he says in his preface, "In the first place criminal justice was extremely ineffectual; the punishment of a criminal was a rare event; the law may have been cruel for; in our eyes, it was capricious; it made use of the irrational ordeal; but bloody it was not."
The ordeal favored the defendant quite as much as the duel for, according to Mr. Maitland, "Success at the ordeal seems to have been far commoner than failure; in deed, only one single case of failure has been found." This case I have cited and, I may add, it was evidently the failure of a person of bad character and little consequence, whom the county wished to get rid of. Selden Soc. Pleas of the Crown, XXIV. In a former lecture I have pointed out some of the causes which led to the sub stitution of the jury for the combat, but beside these there were others, all connected with the crusades which opened up the east ern trade. In 1099 the Christians took Jeru salem, and within two generations the chartered towns were springing up all over Europe; but the chartered towns were cen ters of industry and commerce, and centers of industry and commerce have always been foci of incredulity. In 1163, just before Glanvill became chief justice, heresy grew so rife in the South of France that repression became necessary, and about a generation later this repression took the extreme form of the crusade led by Simon de Montfort against the Albigeois. Montfort, who was created Earl of Leicester by King John in 1206, was invested with the County of Toulouse by the Fourth Lateran Council in 1 21 5; but even Montfort could do little with the legal procedure at hand. Already the Church recognized that to extirpate heresy some process more effective than the ordeal was needed. Accordingly this same coun cil abolished the ordeal and the Church addressed itself to organizing the Inquisi tion. The abolition of the ordeal, however, paralyzed the machinery of the duel, for without the ordeal those appellors who, from incapacity, were unable to fight, were left without remedy. Therefore trial by combat hardly survived the year 1220. Mr. Maitland says that after John's reign, which ended in 1216, "the justices seem to have delighted in quashing appeals." Sel den Soc. Pleas of the Crown, XXIV.
