Wager of Battle: A Tale of Saxon Slavery in Sherwood Forest

by Henry William Herbert

"About three miles."

"Could you see, to know him, at that distance?"

"Why, no; but we guessed it was he, when we saw him run from us; and, when we wound up the clew to the end, and caught him, we found that we were right."

"You may stand down. Who is next?"

Four other witnesses followed, who all swore positively to the person of the prisoner, as "Eadwulf the Red," and testified to various points in the circumstances of the pursuit and capture, all tending to the identification of Kenric with the fugitive; and though the counsel for the defense had succeeded, more or less, in shaking the credit of some of the witnesses with the jury, and of raising a doubt concerning the existence of a brother, with whom the fugitive might have been confounded, no head had yet been made against the direct testimony of six witnesses, swearing positively to his person, and against the damaging circumstantial evidence of the crossbow and quarrels.

When the counsel for the plaintiff rested, and the court adjourned at ten o'clock, for dinner, not a lawyer in the court, except those retained in the defense, but looked on the case of Kenric as hopeless; and the party of Sir Foulke d'Oilly were consequently in high glee. But when the court reassembled, at noon, Walter Gourlay arose, and addressed the six judges—

"May it please your lordships, we shall right shortly prove to your satisfaction and to that of this honorable jury that this case lies in a nutshell, or rather is no case at all, or shadow of a case. First, we shall show to you that this person at the bar is not, nor ever was called, 'Eadwulf the Red,' though there may be some slight similarity of person between him and his brother, of that name; but that he is, and has been called from his cradle to this day, 'Kenric the Dark.' Secondly, we shall show you that this 'Kenric the Dark' was not in Sherwood Forest, or within fifty miles of it, on the 13th day of September last passed, or on any day within two months thereof. Thirdly, we shall show you that this 'Kenric the Dark' is not serf or villeyn to Sir Foulke d'Oilly, or to any Sir in England; but a free man, and free tenant of the Lord of Kendal, in the county of Westmoreland."

Then William of Tichborne, said—"Nay! Brother Gourlay, do not prove too much against us," and he laughed sneeringly; "else thou wilt convict our witnesses as mansworn."

And Thomas de Curthose laughed, and said—"Marry will we, and pillory them for it, likewise."

Then the defense called Bertha, the wife of Werewulf; and an exceedingly old woman was supported into court, by a younger woman of exceeding beauty; and, in consideration of her age and infirmities, she was accommodated with a seat. She was very feeble, and much emaciated, and her hair was as white as snow; but her figure, though frail and quivering, was erect as a weather-beaten pine, and her eye as clear as an eagle's.