"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.