George Neilson, "Trial by Combat" (1890)
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This is a reproduction of a library book that was digitized by Google as part of an ongoing effort to preserve the information in books and make it universally accessible. https://books.google.com 3 2044 HARVARD COLLEGE LIBRARY HARVARD COLLEGE LIBRARY TRIAL BY COMBAT, BY GEORGE NEILSON * GLASGOW —WILLIAM HODGE & c6., 26 BOTH WELL STREET 0 * : . JnscrtbeO, IN GRATITUDE AND RESPECT, TO ROBERT BERRY, Esquire, M.A., CANTAB. ; LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE; LL.D., EDIN. ; FORMERLY PROFESSOR OF LAW IN GLASGOW UNIVERSITY ; NOW SHERIFF OF LANARKSHIRE. PREFACE. This account of the judicial duel in England and Scotland has grown out of general antiquarian studies. A few facts casually gleaned furnished the staple of a paper read to the Glasgow Juridical Society in the spring of 1888. Subsequently the quest for material was systematically pursued. The evidence gathered seemed to make decisively for several new and relatively important historical con clusions. In support of these a dangerous ambition is now gratified — to break a lance in the lists of history. If debts of gratitude were mortgages 'Trial by Combat' would enter the world heavily burdened. My chief purpose in writing a preface is to register the more considerable of my obligations. To Professor Frederic W. Maitland of Cambridge I owe warm thanks for direct help in dealing with the early English duel of law. That section is a very small part of the wide field of 13th century English viii PREFACE. law which the editor of 'Bracton's Note Book' has made so peculiarly his own. I cannot forget the friendly and generous spirit of his criticisms. Dr. Thomas Dickson of the Historical Department of the Register House, Edinburgh, is a never-failing friend of those who strive to penetrate the secret of the past. To me he has throughout my Scottish sections been most helpful with facts and counsel. His genial interest in the labours of an untried student has made my intercourse with him one of my highest pleasures. Many courtesies have been shewn me in man/ libraries. Though chiefly indebted in Glasgow to the Faculty of Procurators' Library — the extensive collection of my own profession — I have had mucb advantage from Stirling's Library and some from the University Library and the Mitchell Library. At Edinburgh in the Advocates' Library and the Uni versity Library I had opportunities of dipping into the manuscript sources of Scots law. Besides, the Curators of the Advocates' Library have kindly granted me permission to print my transcript of an unpublished ancient Scottish MS., ' The Maner of Battale.' This has been collated with another version in the British Museum by a record-agent in London, Miss Wright, 16 Belsize Park Gardens, N., who also PREFACE. transcribed the letter regarding a projected border- duel in 1586. My near neighbour Mr. J. T. T. Brown gave me unlimited license to bore him during the incubation of my thesis — a privilege exercised without mercy. Besides this passive service he actively helped me otherwise, and gave me sundry useful references. Thanks to Mr. Alexander L. Davidson, Ruthwell, and in a minor degree to Mr. J. J. Elliot, Garnethill, some faulty sentences have been modified. My partner in business, Mr. Francis Stoddart, has assisted me in correcting proofs and preparing the index. In conclusion, let me hope that in spite of numerous defects, avoidable and unavoidable, my book may prove of some service towards a clearer understand ing of the place in British history, and especially in Scots history, of the wager of battle. I have, God wot, a large feeld to ere, And wayke ben the oxen in my plough. Chambers, 58 West Regent Street, Glasgow, 1st January, 1890. CONTENTS. Part I.- -Preliminary : Europe : Chap. 1. Before the Middle Ages. 2. King Gundobald, A.D. 501. 3. Mode of Battle. 4. Among the Norsemen. 5. The Church. 6. Decadence and Extinction. Part II. — Origin in Britain : Chap. 7. A Question Stated. 8. Norse Evidence. 9. English and Scotch Evidence. 10. The Question Answered. Part III. — England, 1066-130x3: Law: Chap. II. Legal Outline. 12. Sketch of Procedure. 13. The Duel in Finance. 14. The Approver. 15. The Champion. 16. Some Churchmen's Champions. 17. Another Champion's Contract. 18. Three Early Duels, A. D. 1096-1163. 19. A Hibernian Hero. 20. Charters and Charter Stories. 21. An Incident, a.d. 1267. 22. Reactionary Signs. 23. Review and Prospect. CONTENTS. Part IV. — Scotland till 1300 : Law : Chap. 24. In Early Scotland. 25. Under David the First. 26. Under William the Lion. 27. Writ of Right. 28. The Battle. 29. An Argument. 30. Exemptions from Duel. 31. Regiam Majestatem. 32. In the Regiam. - 33. Crime in the Regiam, 34. Under Alexander II. and after. 35. The Duel Described. 36. March Law. 37. 'The Lawis of Merchis,' a.d. 1249. 38. Recorded Duels from 1155. 39. A Great Trial, a.d. 1242. 40. Merse and Kyle, a.d. 1264-66. 41. Baron Courts of the Bruces, a.d. 1292. 42. By 1300. Part V. — England, 1300-1603 : Law and Chivalry : Section First — The Duel of Law. Chap. 43. Continued Decline after 1300. 44. The Prior of Tynemouth's Champion. 45. Magic, a.d. 1355. 46. The Last Approver's Duel, A.D. 1456. 47. An Elizabethan Scene, A.D. 1571. Section Second — The Duel of Chivalry. 48. A French Edict, a.d. 1306. 49. The Rise of Chivalry. 50. Precedents, A.D. 1350-52. 51. Transmarine Treason, A.D. 1380-84. 52. The Court of Chivalry. 53. In Chaucer. CONTENTS. Part V. — England, 1300-1603 : Law and Chivalry : Section Second— The Duel of Chivalry — continued: Chap. 54. A Contrast and Conclusion. 55. Richard II. 56. A Royal Jest, a.D. 1399. 57. Some Treason-Duels. 58. The end of Chivalry. 59. A Summary with an Exception. Part VI. — Scotland, 1300-1603 : Chivalry : Chap. 60. Before Bannockburn. 61. Before Halidon Hill. 62. The Law and Custom in 1354. 63. Three half-told Stories, 1362-95. 64. Border Duels till 1396. 65. ' Vegetius ' in Scotland. 66. 'The Maner of Battale.' 67. International Tilting. 68. A New Conclusion. 69. Precedents for the Inch of Perth. 70. Preliminaries — Inch of Perth. 71. The Inch of Perth, a.D. 1396. 72. Facts and Suppositions, 1398-1412. 73. On 'The Order of Combats.' 74. 'The Order of Combats.' 75. The Scottish Court of Chivalry. 76. Stray Duels, a.D. 1426-56. 77. In Parliament and Burgh Court. 78. Note on the Passing of Chivalry. 79. Pitscottie's Dutchman, a.D. 1500. 80. John Major's Homily. 81. Under James V. 82. Rise of Private Duels. 83. An Interlude, a.D. 1549. 84. Two Historic Cartels. CONTENTS. Part VI. — Scotland, 1300-1603 : Chivalry — continued: Chap. 85. The last Trial by Combat. 86. The Act of Parliament of 1600. 87. A Final Episode. 88. On the Borders. 89. Scottish Summary. Part VII. — Britain, 1603-1819 : Chap. 90. Last Words on Scotland. 91. England under James I. 92. England under Charles I. 93. Appeal of Murder Act, 1819. 94. The End. SOME REFERENCES EXPLAINED. Antiq. Celto-Scand. , Antiquitates Celto-Scandicae, by James John stone, 1786. Arng. Jon. Chrym., Chrymogae Rerum Islandicarum, by Arngrim Jonas, pub. with his Epistola, 1618. Bain's Cal. , . Calendars of Documents relating to Scotland, by Joseph Bain. Bann., . Bannatyne Club. Barrington, Observations on Statutes, ed. 1769. Black Book, Black Book of Admiralty, Rolls Series, ed. Twiss. Bower, . Scotichronicon, ed. Goodall, 1747. Bracton, Rolls Series, ed. Twiss. Brac. N.B., Bracton's Note Book, ed. F. W. Maitland. Brakelond, Jocelin of Brakelond, Camden Society, Britton, . ed. Nicholls. Cal., . Calendar. Cal. Rot. Pat. Calendarium Rotulorum Patentium (Record Com mission). Calderwood, History, Wodrow Society. Camden, Britannia, ed. Gibson, 1695. Chart., . Chartulary. Cornhill Art., See page 9. Crown Pleas, Select Pleas of Crown, Selden Society, ed. F. W. Maitland. Du Cange, Glossarium. Dugd. Orig., Dugdale's Origines Juridiciales, 1671. Exch. Rolls, Exchequer Rolls, ed. Geo. Burnett. Extracta, Extracta ex Cronicis, Abbotsford Club. Fleta, . Seldeni, 1647. Fordun, . ed. W. F. Skene, 1872. Froissart, ed. 1812. Galf. le Baker, Galfridus le Baker de Swinbroke, ed. Giles, 1847. Gibbon, . Decline and Fall, cited by chapter, page, an volume, from Warne's reprint, 1887. SOME REFERENCES EXPLAINED. Gibson, . Paper on Ordeals in Archseologia, vol. xxxii. , by W. S. Gibson. Gregory, . Collections of a London Citizen, Camden Society. Hall, . Hall's Chronicle, ed. 1809. Hemingburgh, . ed. English Historical Society, 1848. Kendall, . E. A. Kendall. An Argument on Trial by Battle, 3rd ed. 1818. Knyghton, . in Decem Scriptores, 1652. Madox, . History of the Exchequer, ed. 17 1 1. Mait., . Maitland Club. Meyrick, . Ancient Armour, 1824. N. & Q., . Notes and Queries. Pike, . History of Crime in England. Pipe Rolls, . Publications of Pipe Rolls Society. P.C. Reg., . Privy Council Register, Scotland. Pitcairn, . Pitcairn's Criminal Trials, Maitland Club. R. S., . Rolls Series. Robertson, ' . Viewof State of Europe, prefixed to History of Charles V. Rot., . Rotuli. Rot. Scot., Rotuli Scotise. Rymer, . Fcedera, 2nd ed. 1727. Stat. Eccl. Scot., . Statuta Ecclesise Scoticanae, by Joseph Robertson. Scalacron. , . Scalacronica, Maitland Club. Scots Acts, . Acts of Parliaments of Scotland, ed. Thomas Thomson and Cosmo Innes. S paid. , . Spalding Club. Stow, . Stow's Annals, ed. 1615. Stubbs' Charters, . Select Charters, by Bishop Stubbs, 1884. Thorpe's Cal., . Calendar of Scottish Documents, 1 509- 1603. Walsingham, . ed. Rolls Series. Wyntoun, . Cronykil, ed. David Laing, 1872. Erratum.— Page 133, line 16, for R ichard read Robert. TRIAL BY COMBAT. PART I.-PRELIMINARY: EUROPE. Chap. 1. — Before the Middle Ages. This book attempts a plain straightforward sketch of a British chapter in the biography of a great European institution, with more intent to present facts than to deal with the ethics and philosophy of its origin, progress, and decline.