apparére, tunc recedat appellatus, quietus de appeilo, ex quo appellans se obligavit ad 'convincendum cum. una hora diei, quod quidem non fecit.' When the defendant doth

the sword or bastons, of two champions. Of this you may reade at large, Paris de Puteo de re militari et duello. Alciat de duello. Hotoman. disput, feudalium, cap. 42. As also in our common lawyers of England, namely Glan-plead to the appeale not guilty, and undertakes vile li. 14. c. 1. Bracton lib. 3. tractat. 2. cap. to defend it with his bodie, he must throw 3. Britton cap. 22. Horns Mirrour of Justices, downe his gauntlet or glove into the court; and lib. 3. cap. des exceptions in fine proximè ante if the plaintiefe doth enter reioinder, to the C. Iuramentum duelli apud Dier, fol. 301. nu. battle, then must hee take up the glove or 41, 42. ¶ Staumf. Plees of the Crowne, lib. 2, gauntlet; but if the plaintiefe doth conterfo. 176. b. and 177 a. saith that it is an ancient plead unto it, then must hee suffer the glove or triall in our law, and much used in times past, gauntlet to lie, and the other shall demurre in as appeareth by divers presidents in the times law or void him of his appeale, because he reof Edward the 3rd, and Henry the 4th: which fused his glove or gauntlet. When they are is not yet out of use, but may be by the law in sworne, they must produce mainprisers or use at this day, if the defendant will, and nothing pledges to performe the combat or battle, and can be drawen in conter-plee thereto. And it then the court shall appoint them a day and is said M. 37. H. 6, f. 3, that to wage battle, place to fight, and as Fitz. p. 385, further saith, or to combat, is by the civil law: but Moile that the challenger shall be at libertie, but the saith it is by our common law, and as Stamford defendant in the custodie of the marshall, and Plees of the Crowne, fo. 177. a. saith, That they the marshall shall array them both at their owne shall come armed into the court, and ioine charge, and that must be the night before the issue: the plaintiefe beginues his appeale, &c. battle, for that they may be ready in the field and the defendant pleads not guiltie, and (as or lists by sunne rising. The formes of battle Britton setteth it downe, fo. 41.) undertakes to described 17 Edw. 3. et 9 H. 4, differ from defend it with his bodie, &c. And after, one that described by Bracton and Britton, and taketh another by the band, and first the de- that described by Dier, Termino Trinitatis, fendant saith in this manner: Heare you this, anno 13 Eliz. as hee sets it downe betweene you man whom I hold by the hand, which are one Cheuin and another Paramour a Kentish called Lohn by your christian name, that I gentleman, about the triall of land, and levying Pierce, such a yeere, such a day, in such a a fine thereof; and on the issue Paramour place, the aforesaid murder of N. neither did chose the triall by combat or battle, and had a doe, nor goe about, neither purpose, nor as- champion one George Thorne a gentleman of sented to such a felonie, as you have alleged. Kent and no doubt his dearest friend, that So God me helpe, and his Saints. And after would enter the lists to such a hazard of life, the accuser saith: Ileare you this, you man &c. And the other had one Henrie Nailer a whom I hold by the hand, which are called P. master of fence, and the court awarded the by your christian name, you are periured: For battle, and the champions were mainprised on such a day, such a yeere, in such a place, and sworne (Quære formam iuramenti) to peryou did such treason or such a murder, which I forme the combat or battle, apud Totehill in have alleged against you, or whereof I challenge Wesim. 18. Iunij. prox. post crast. Trinitat. you. So God mee helpe, and his Saints. Then which was the first day of the vtas of the terme, they shall be both lead into a certaine place, and on the day appointed was there a list made where both further say, Heare you this, ius- foure-square on even ground, every square 60 tices, that we I. and P. have neither eat nor foot, and East, West, North, and South: and drunke, nor done any other deed whereby the the place and seat of the judges was made withlaw of God should be abased, or the law of out, yet close upon the lists, and a barre made the divell advanced. And foorthwith there for the sergeants at law, et circa horam decishall be an ayez or proclamation made, that 'mam eiusdem diei,' three iustices or iudges of none shall bee so bold but the combatants, to the Common Pleas, viz. Dier, Weston, Harper, speake or doe any thing that shall disturbe the | (the fourth, namely Welsh, was away by reason combat or battle: and whosoever shall doe he was sicke) did repaire to the place in their against this proclamation, shali suffer imprison- roabes of scarlet, with their other habits and ment for a yeere and a day. Then they shall coifes, and the sergeants at law also: and there fight with weapons, but not with any iron, but a proclamation being made with three Oyez, with two staves or bastons tipt with horne, of the demandants were first called for, and they an ell long, both of equall length, and each of came not. After that, the mainpernours of the them a target, and with no other weapon may champions were called to bring forth first the they enter the lists. And if the defendant can champion of the demandant or challenger, which defend himselfe till after sunne set, and as my came into the place in rugged sandals, bare author saith, till you may see the starres in the legged from the knee downward, and bare firmament, and demand judgement if he oughtheaded, and bare armes to the elbow, being to fight any longer, then must there be iudgement given on the defendants side. And Bracton agreeth hearewith in these words: Quod ⚫ si appellatus se defenderit contra appellantem, tota die, usque ad horam qua stella incipiunt

brought in by the hand of a knight, sir Ierome Bowes by name, who carried a red baston, of an ell long, tipped with horne, and a yeoman carrying the target, made of double leather, and they were brought in at the north side of the

either on horsebacke or on foot. If the offence. deserved imprisonment, and not death, then was the camp-fight accomplished when the one had subdued the other, by making him to yield, or unable to defend himselfe, and so bee taken prisoner. The accused had the libertie to choose another in his stead, but the accuser must performe it in his owne person, and with equalitie of weapons. No women were admitted to behold it, nor no men children under the age of thirteene yeares. The priests and people that were spectators, did silently pray that the victory might fall unto the guiltlesse. And if the fight were for life or death, a beere stood ready to carry away the dead bodie of hin that should bee slaine. None of the people might crie, scrike out, make any noise, or give any sigue whatsoever. This was so strictly and severely punished at Hall in Swevia, (a place appointed for camp-fight) that the executioner

cut off the right hand and left foot, of the partie so offending. Hee that (being wounded) did yield himselfe, was at the mercie of the other, to be killed, or to be let live. If he were slaine, then was he carried away, and honourably buried: and he that slue him reputed more honourable than before. But if being overcome he were left alive, then was be by sentence of the judges declared utterly void of all honest reputation, and never to ride on horseback nor carrie armes." Verstegan. p. 64.

lists, and went about the side of the lists, untill | then was the camp-fight for life and death, and the middest of the lists, and then came towards the barre before the judges, with three solemne congies, and there was hee made to stand at the south side of the place, being the right side of the court. And after that, the other champion was brought in, in like manner, at the south or contrary side of the lists, with like congies, &c. by the hands of sir Henry Cheney knight, &c. and was set on the north side of the barre (quite opposite to the other champion) and two sergeants being of counsell of each partie, in the middest betweene them: This done, the demandant was solemnly called againe, and appeared not, but made default; upon which default, Barham sergeant for the tenant, praieth the court to record the nonsuit; which was done: Then Dier chiefe iustice reciting the briefe, the matter, and issue of the battle or combat, and the oath of the chanpions to performie it, and the prefixed day and place, gives finall judgement against the de-stood beside the iudges, ready with an axe to mandant, and that the tenant shall hold the land, to him and to his heires for ever quietly, from the said demandant or challenger, and their heires for ever, and the demandauts and their pledges, de prosequendo,' to be at the mercy of the queene, &c. And then was there solemne proclamation made, that the champions and all others there present (which by estimation were about 4000 persons) should depart in Gods peace and the queenes. And so they departed with a shout, God save the queene. Likewise, according to the lawes and ancient customs of the realme of England, 9 Iacobi Termino Hilarij. a gentleman, by name Mr. Egerton, having challenged another gentleman, one Mr. Robinson, for the killing of the brother of M. Egerton, slaine in the field upon a quar-lows: rell betwixt the said M. Egerton slaine, and one M. Morgan, with whom (as it is said) the said M. Robinson at the same time went as a friend into the field, &c. The proofes being no more apparent, and the defendant challenged, &e. as by the formes of our ancient lawes first above recited, it was granted by the judges of the land, that it should be tried by combat: The glove or gauntlet was cast downe in the open court, ex parte provocantis, and received in due forme, ex parte defendentis. The oath was administred solemnly, and pledges put in by each partie, foure sufficient men to answer for either, body for body. But an errour or scape being made in the plea, the bill was frustrated, so that they came not at all to the lists. An antiquarie, Verstegan by name, in his booke intituled, a Restitution of decaied intelligence, in antiquities concerning the most noble and renowned English nation, sets it downe in these words, and saith thus: "In the triall by single combat or camp-fight, the accuser was with the perill of his owne bodie to prove the accused guiltie, and by offering him his glove, to challenge him to this triall: the which the other must either accept of, or else acknowledge himselfe culpable of the crime whereof he was accused. If it were a crime deserving death,

The last case of Trial by Battel was 14 Car. 1. A. D. 1638. 2 Rushw. Coll. 788, Claxton v. Lilburn, (father of John Lilburn the famous re. publican). Upon one point in this case, Rushworth records the opinion of the Judges as fol

"The tenant waged Battel, which was accepted; and at the day to be performed, Berkley, Justice there examined the Champions of both parties, whether they were not hired for money? And they confessed they were; which confession he caused to be recorded, and gave further day to be advised. And by the king's directions, all the Justices were required to deliver their Opinions, whether this was cause to de-arraign the Battel by these Champions? And by Branistone, Chief Justice, Davenport, Chief Baron, Denham, Hutton, Jones, Cook, and other Justices, it was subscribed, That this exception coming after the Battel gaged, and Champions allowed, and Sureties given to perform it, ought not to be received."

Of the Trial by Battel Mr. Barrington (Obs. on Stat. De Magnis Assisis et Duellis et St. 8 Ric. 2) has collected some particulars, and has referred to some curious passages on the subject, in the writings of English and French authors. He observes on the ludicrousness of some of the circumstances contained in Rushworth's account (printed in the text) of the proceedings in this case of lord Rea and Mr. Ramsay. He also relates a story from Grafton of a citizen of London of strong make but faint heart, who, entering the lists against an antagonist both

weak and puny, was made drunk by his friends in the arraignment of prisoners, the question with the design of raising his courage; and so Culprit, how wilt thou be tried?' is improperly fell an easy prey to his adversary. Mr. Barring-answered, By God and iny country. It originally ton could find no reference in the indexes to must have been, By God or my country." Upon any bill for abolishing the duel by champions this Blackstone observes, "A learned author, on a writ of right, but cites an entry in the who is very seldom mistaken in his conjectures, Lords' Journals, Mar. 19th, 1629, of such a bill has observed that the proper answer is, by God having been twice read and reported: and ob- or the country,' that is, either by ordeal or by 1 serves that it is very remarkable that the time jury; because the question supposes an option when the Trial by Ordeal was disused, does not in the prisoner. And certainly it gives some appear. Concerning the Trial by Ordeal see countenance to this observation, that the trial Blackst. Comm. b. 4. c. 27, and the fifteenth by ordeal used formerly to be called judicium volume of the Archæologia, in which are pub- | Dei. But it should seem, that when the queslished "Some Remarks on the different kinds tion gives the prisoner an option, bis answer of Trial by Ordeal which formerly prevailed must be positive: and 'not in the disjunctive, in England, by Robert Studley Vidal, esq.;" which returns the option back to the prosecutor." wherein he announces his intention of publishing An Inquiry concerning the forms and ceremonies used in some of the antient modes of trial in England, particularly in the fire and water ordeals, the corsned, the judicial combat, and other Judicia Dei." Mr. Barrington (Obs. on Westm, the First) says, "That

Doubtless the superintending providence of God was appealed to and was supposed to direct the judgment, to whatever mode of trial recourse was bad. By God and my country therefore would be in contradistinction from, By God and the Buttel, By God and the Ordeal, &c.

41. Proceedings in the Star-Chamber against HENRY SHERFIELD,* esq. Recorder of Salisbury, for breaking a painted GlassWindow in the Church of St. Edmonds in the said City: 8 CHARLES I. A. D. 1632. [2 Rushw. Coll. 153.]

The Information was thus opened: MR. Attorney-General (sir Rob. Heath) hath exhibited an Information, in the behalf of his majesty, against Henry Sherfield, esq. an antient bencher of Lincoln's-Inn; for taking upon him, of his own authority, to deface a ParishChurch in the city of New-Sarum, in the county of Wilts, and that in opposition to the church government, established by the laws amongst us. His majesty's Attorney, in the said Information, setteth forth, That his majesty is in his kingdom, next under Christ, the supreme Head: that all Churches are sacred, and both founded and maintained by regal and sovereign power; that no subject can meddle with them, in doing any thing for their ornament or structure, without licence of the bishops in their several dioceses, or the ordinary for the time being, who derive their authority from the sovereign power. -That the party delinquent was an inhabitant of the parish of St. Edmonds, in the city of New-Sarum.-That in the same Church was an antient and fair Window, containing a description of the Creation: That in January, quinto Caroli, the Defendant, and some factious persons, intending to deface it, there met and agreed so to do.-John Davenant bishop of Sarum commanded the contrary, and accordingly made a public act thereof.-But in Oct. following, he the said Defendant got the keys of the Church, upon pretence to walk there,

Vide infra Laud's Case, eighth day of his hearing.

and then locked the door, and contrary to the bishop's appointment, he beat down the said Window, and utterly defaced it; and when he had thus done, he did boast and glory in that he had so done, and reported that himself was a Defacer of Idolatry. And for punishing of this great crime is this Information exhibited, by his majesty's Attorney in this honourable court.

Mr. Herne. The Defendant humbly offers to the consideration of this honourable court, that he is aged, and has grey hairs upon him. That among all the crosses of his life hitherto, he doth not account this the least, That he is this day not only suspected, but accused as an enemy to his majesty and his religious government; and the thing that he is especially accused and charged with, is, that of breaking the Glass Window, whereunto himself giveth this Answer:

That in the Time of king Hen. 3. this church of St. Edmonds in Sarum was built, and that there was a College of priests there; for there was an house adjoining, called The College to this day. That by the act in the time of Hen. 8, this college came to the crown, and there remained until king James granted it to Gouge and Lloyd, who afterwards granted the same to Bartholomew Tookey, and others, to the use of the parish of St. Edmonds, together with the advowson and free disposition of the vicaridge there, which they have by grant from his said late majesty king James.

And though he did conceive the said Church

Vestry-house, and there have made orders for the taking down, and setting up again, parts of the church. They have taken down glass windows, they have removed altars, roodlofts have been pulled down, seats pulled down and altered, the pulpit taken down and set in another place; and these and many other things without any special licence of the king's majesty that now is, or of his father king James, or of John lord bishop of Sarum, or of his predecessors.

That at a meeting of the said Vestry-men of the said parish, this Defendant being one of them, in or about January, 1629, it was ordered, that this Defendant might, if he pleased, take down the said Glass Window, being in the south-side of the said church, so as at his own cost and charges he would repair the same with new plain glass. And this Defendant being to come to London, desired it should be done before his return; and that the glazier might not mistake the window, he pulled down with his staff two or three of the small quarrels of glass, and so left it to the church-wardens to be done.

infidelity and impiety to Almighty God, and to be disaffected to the king, therefore this Defendant humbly craveth leave to declare his opinion in the thing itself.

And he saith, that he believeth it altogether unlawful to make the Representation of the true God in any church, or wall, or window ; and this he hopeth to make appear by the Scripture, by orthodox Writers, Councils, and Decrees of Emperors, and by a certain Book of the now bishop of Sarum (Dr. John Davenant) written on one of St. Paul's Epistles, in the 97th and 98th pages; king James's Book, intitled his Premonition to all Christian kings and princes;' the Book of Homilies, set forth by authority, and therein the Homily against Idolatry in particular: That this being so false a Representation, and so profane a setting down of the Image of God the Father seven times, he, this Defendant, being a parishioner, and troubled therewith in conscience by the space of twenty years, for that he could not come into the church, but he must see it, sitting right opposite to it, he was much grieved thereat, and wished a long while that the same That he is accused to be an opposer of his were removed, and yet in respect of himself majesty's government, and of the reverend laboured still to disaffect bis thoughts; but bishops; and this by the procurement of those seeing the dishonour done to God thereby by that are ignorant of the thing, which this De- some ignorant persons, (as this Defendant was fendant accounteth a very great affliction. informed by the pastor of the said parish) and He saith, That this Window, and the paint-fearing that others might offend in Idolatry, he ing therein, was not a true Representation of the Creation; for that it contained divers forms of little old men in blue and red coats, and naked in the heads, feet and hands, for the picture of God the Father; and in one place he is set forth with a pair of compasses in his hands, laying them upon the Sun and Moon; and the painter hath set him forth creating of the birds on the third day, and hath placed the picture of beasts, and man and woman, the man a naked man, and the woman naked in some part, as much as from the knees upwards, rising out of the man; and the seventh day he therein hath represented the like Image of God, sitting down, taking his rest: whereas this Defendant conceiveth this to be false, for there is but one God, and this representeth seven Gods; and the Sun and Moon were not made on the third day, but on the fourth day; nor the trees and herbs on the fourth day, but on the third day; nor the fowls on the third day, but on the fifth and man was not created on the fifth, but on the sixth day; nor did the Lord God so create woman as rising out of man, but he took a rib of the man, when he was in a deep sleep, and thereof made be the woman, in all which the workman was mistaken in regard of which falsifications, this Defendant deemeth, that this was not a true Representation of the Creation, though it be so pretended, but rather an abuse of the true and lively Word of God, which to pull down, as aforesaid, cannot be any offence in him, this Defendant, as he conceiveth, at least in that manner as in the information it is pretended. But in as much as he is accused of

|

(by order of the Vestry aforesaid) did take down some little quarrels of the Window; and it was done by him only, without any disturbance, and he did it only in such places of the glass as the Representation of the Deity so falsified was: he did it not to arrogate to himself authority, but as bound to do what he did to preserve a good conscience; it was not done riotously, nor by combination with any others. And he saith, That he never deserved, nor will deserve such a bitter charge, as, through the malice of his enemies, is laid upon him by the said Information. And he saith, that he, and other of the Defendants, were justices of the peace, and not altogether private persons, and they were parishioners, and entrusted, as aforesaid; and the taking down of the Window seemed to be warranted by the statute of Edw. 6, and by the late queen's injunctions, set forth in print in the first year of her reign, whereby it was commanded that all idolatrous and superstitious pictures, roodlofts, altars, and other relicks of idolatry, especially in churches, should be defaced and abolished, but the wall preserved, and this to be done by the churchwardens, and these injunctions being by act of parliament, they are still in force, as he conceiveth. And in the 13th of Eliz. in the convocation held by the Archbishops, amongst other Canons, this for taking down and defacing idolatrous Pictures and Images was one, and made an article, that the Church-Wardens shall inquire whether it be done accordingly: and the same ordered by the Convocation, in the 1st of king James. He saith, That he doth not countenance any contemners of the Church,