University of Virginia Library

23. CHAPTER XXIII.
THE TRIAL.

There is nothing in all the reign of that wise, moderate,
and able prince, as viewed according to the circumstances of
his position and the intelligence of his era, the Second Henry
of England, so remarkable, or in his character so praiseworthy,
as his efforts to establish a perfect system both of judiciary
power and of justice throughout England. In these efforts
he more than mediately succeeded; and, although some corruptions
continued to exist, and some instances of malfeasance
to occur, owing in some degree to the king's own avaricious
temperament and willingness to commute punishments, and
perhaps, at times, even prosecutions, for pecuniary fines, justice
was not for many centuries more equitably administered,
certainly not four hundred years afterward, in the reign of the
eighth monarch of the same Christian name, than in the latter
portion of the twelfth century.

At this period, that justly celebrated lawyer, Ranulf de
Glanville, was High Justiciary of England, besides holding the

especial duty of administering justice, at the head of five
others, in the circuit courts of all the counties north of the
Trent; and he has left it on record “that there was not now
in the King's Court one judge, who dared swerve from the
path of justice, or to pronounce an opinion inconsistent with
truth.”

During the six weeks, which intervened between the liberation
of Kenric from the arrest of Sir Foulke d'Oilly, and the
day appointed for the holding of the Lancaster assizes, there
was great tribulation in the castle of Hawkshead; and it was
known that Sir Yvo de Taillebois was in constant correspondence
with the High Justiciary; flying posts were coming and
going, night and day, booted and spurred, through rain or
shine, from York, the present abode of Sir Ranulf, to the
shores of Windermere.

The old chaplain was buried up to the eyes in old parchments
and genealogies; and, to complete the mystery, Clarencieux,
king-at-arms, came down to the castle, accompanied
by a pursuivant, loaded with documents from the college of
heralds, a fortnight before the decisive day, and tarried at the
castle until the time came, no one knowing especially, save
Sir Yvo, his daughter, Aradas de Ratcliffe, and the persons
employed in the research, what was the matter at issue.

Necessary, however, as it was deemed, at that time, to hold
the proceedings and their cause in perfect secrecy, no such
reason exists now; and it may be stated that, the object
being no other than to bring Sir Foulke d'Oilly to justice for
the murder of Sir Philip de Morville, it was necessary to be
prepared at every point.

Now, according to the criminal law of that day, no prosecutor

could put in his charge for murder, until he should
have proved himself to be of the blood of the deceased. And
this it was now the object of Sir Yvo to do, there having always
been a traditionary belief in a remote kindred between
the two families, though the exact point and period were forgotten.

At length, in the middle of the month of October, a proclamation
was issued, in the name of the King, offering a free
pardon for all other offenses, with the exception of high treason
and misprision of treason, and five hundred marks reward
to any freeman, or freedom to any serf, who, not being a
principal in the deed, should appear before the court of assize
at Lancaster, on the first day of December next ensuing, and
give such evidence as should result in the conviction of the
murderer or murderers of the late Sir Philip de Morville, of
Waltheofstow, in the county of York.

At the same time, orders were issued to Kenric, and all
his associate foresters and keepers, to bring in Eadwulf, under
assurance of pardon, if he might be found in any quarter;
and rewards were offered to stimulate the men to exertion.
But in vain. The foresters pushed their way into the deepest
and wildest recesses of the Cumbrian wilderness, at the risk
of some smart conflicts with the outlaws of that dark and
desolate region, who fancied that they were trespassing on
their own savage haunts, with no good or amicable intent;
but of Eadwulf they found no traces.

Kenric persisted, alone, after all the rest had resigned the
enterprise; and, relying on his Saxon origin and late servile
condition, mingled with the outlaws, told his tale, showed the
proclamation, and succeeded in interesting his auditors in his

own behalf and that of his brother; but he, no more than
the others, could find any traces of the fugitive, and he began
almost to consider it certain that the unhappy Eadwulf had
perished among the hills, of the inclemency of the weather.
He too, at last, returned home, despairing of ever seeing the
unhappy outlaw more.

In the mean time, an earnest and interesting contest was
going on in the castle, between Guendolen and Aradas on
the one hand, and Sir Yvo de Taillebois on the other. For
it had been discovered by the heralds, that there did exist
proofs of blood-connection between the two families, sufficient
to justify Sir Yvo in putting in a charge of his kinsman's
murder against Sir Foulke d'Oilly, on the grounds of common
rumor and hearsay, if Eadwulf should not be found;
and, if he should, then on his testimony.

That D'Oilly would forthwith claim trial by wager of battle,
none might doubt, who knew the character and antecedents
of that desperately bad but dauntless man.

Now, it was the suit of Guendolen and Aradas, that Sir
Yvo should appoint his young esquire his champion to do
battle for the judgment of God—for they were irrevocably
convinced—what, between their real faith in the justice of
this cause, and the zealous trust, of those who love, in the
superiority of the beloved, and the generous confidence of
youth in its own glowing and impulsive valor—that Aradas
would surely beat the traitor down, and win the spurs of gold,
to which he so passionately aspired. But the clear-headed
veteran regarded matters with a cooler and perhaps a wiser
eye. He knew Sir Foulke d'Oilly for a trained, experienced,
and all-practiced soldier; not only brave at all times, and

brave among the bravest—but a champion, such as there were
few, and to be beaten only by a champion. He knew him
also desperate, and fighting his last stake. He foresaw that,
even for himself, the felon knight, unless the sense of guilt
should paralyze his heart, or the visible judgment of God be
interposed in the heat of battle—a thing in those days
scarcely to be looked for—would prove no easy bargain in
the lists; and, how highly soever he might estimate his young
esquire's courage and prowess, he yet positively refused to allow
him to assume the place of appellant in the lists; and
denied utterly that such a conflict, being the most solemn
and awful of appeals to the Almighty on his judgment-seat,
was any proper occasion for the striving after spurs of gold,
or aiming at the honors of knighthood.

So the lovers were obliged to decline into hopes of some
indefinite future chance; and did decline into despondent and
listless apathy, until, two days only before that appointed for
the departure of the company into Lancashire, fortune or
fate, which you will, thought fit to take the whole matter into
its own hands, and to decide the much-vexed question of the
championship by the misstep of a stumbling palfrey.

After having ridden all day long on a stout, sure-footed
cob, which he had backed for ten years, without knowing him
to make a solitary blunder, marking trees for felling, and laying
out new plantations with his foresters, Sir Yvo was wending
his way toward the castle gates, across the great home-park,
when, a small blind ditch crossing his path, he put the
pony at it in a canter.

Startled by some deer, which rose up suddenly out of the
long fern, growing thick among the oak-trees, the pony

shyed, set his forefeet in the middle of the drain, and came
down on his head, throwing his heavy rider heavily on the
hard frozen ground.

A dislocated shoulder was the consequence; and, though
it was speedily reduced, and no ill consequences followed, the
surgeons declared that it was impossible that the knight should
support his armor, or wield a sword, within two months; and
thus, perforce, Guendolen had her way; and it was decided
that Aradas should be admitted to the perilous distinction of
maintaining the charge, in the wager of battle.

Strange times! when to be permitted to engage in a conflict,
in which there was no alternative but victory, or infamy
and death, was esteemed a favor, and was sought for, as a
boon, not by strong men and soldiers only, but by delicate
and gentle girls, in behalf of their betrothed lovers, as a mode
of winning los on earth, and glory everlasting in the heavens.

Yet so it was; and when it was told to Guendolen, that
her lover was nominated to that dreadful enterprise, a blush,
indeed, mantled to her cheek, and a thrill ran through all her
quivering frame, and an unbidden tear trembled in her beautiful
clear eye; but the blush, and the thrill, and the tear,
were of pride and excitement, not of fear or compassion; and
the lady never slept sounder or more sweetly than on that
eventful night, when she learned that, beyond a peradventure,
her true love would be sleeping, within ten little days, under
a bloody and dishonorable sod, or living, the winner of those
golden-spurs and of her own peerless beauties.

There was, however, a strange mixture of simple and fervent
faith in those days, with an infinitely larger amount of
coarse and open wickedness, violence, and vice, than, perhaps,

ever prevailed in any other age. And while the moral restraint
on men's conduct and actions, arising from a sense of
future responsibility and retribution, was vastly inferior to
what now exists, owing to the open sale of indulgences, absolutions,
and dispensations, and the other abominable corruptions
of the Romish church, the belief in temporal judgments,
and the present interference of divine justice in the affairs of
men, was almost universal.

Infidelity in those days was a madness utterly unknown;
and an atheist, materialist, or any phase of what we now call
a free-thinker, would have been regarded with greater wonder
than the strangest physical monster. It is not too much to
say, that there were not in that day twenty men in England,
who did not believe in the real efficacy of the ordeals, whether
by water, fire, or battle, in discovering the truth, or one in a
thousand who would not be half-defeated, before entering the
lists, by the belief that God was fighting against him, or strengthened
unto victory by the confidence that his cause was just.

One of these one men in a thousand it was, however, about
to be the fortune of Aradas de Ratcliffe to encounter, in the
person of Sir Foulke d'Oilly; but this he neither knew, nor
would have thought of twice, had he known it. However
hardened the heart of his adversary might be by the petrifying
effects of habitual vice, however dulled his conscience by
impunity and arrogance and self-relying contumacy, his own
was so strongly panoplied in conscious honesty, so bucklered
by confidence in his own good cause, so puissant by faith in
God, that he no more feared what the might of that bad man
could do against him, than he doubted the creed of Christ
and his holy apostles.

Nor less was the undoubting assurance of the lady of his
love, in whom, to her faith in divine justice, to her absolute
conviction of D'Oilly's damning guilt, was added that overweening
confidence in her lover's absolute superiority, not only
to all other men in general, but to every other man individually,
which was common to love-sick ladies in those days of
romance and chivalry.

But we must not anticipate, nor indeed is there cause to do
so; for the days flew; until, after leaving Kendal Castle, the
old fortalice of Yvo de Taillebois, who, coming in with the
Conqueror, had wedded the sister of the Earls Morcar and
Edwin, whence they took their departure as so much nearer
to their destination, and journeying four pleasant winter days
round the head of Morecambe Bay, they entered the old town
of Lancaster. Sir Yvo de Taillebois was borne in a horse-litter,
in consequence of his accident, at the head of a dozen
knights, his vassals, all armed cap-à-pie; and a hundred
spears of men-at-arms followed, with thrice as many of the
already famous Kendal archers, escorting a long train of litters,
conveying the lady and her female attendants, and a yet
longer array of sumpter-mules and pack-horses.

The town was already crowded; but for a party so distinguished
as that of Sir Yvo de Taillebois, High-Sheriff of the
North-western counties, and chief local officer of the crown,
apartments were prepared in the castle, adjoining those of
the high justiciary and the itinerant, or, as we should now
call them, circuit judges; while his train easily found quarters,
some among the garrison of which they formed a part, as of
right, and the rest in the vicinity of the castle.

At an early hour in the morning, preceded by trumpets and

javelin men, clad in all the magnificence of scarlet and
ermine, emblematic of judicial purity, but unencumbered by
the hideous perukes of horse-hair which later ages have devised
for the disfigurement of forensic dignitaries, the high
justiciary, Ranulf de Glanville, followed by his five associate
judges, proceeded to the superb oak-wainscoted and oak-groined
hall, in which it was used to hold the sittings of
“the King's court,” at that time the highest tribunal in the
realm.

This noble apartment, which was above a hundred feet in
length by half that width, and measured sixty feet from the
floor to the spring of the open arches, independent of the
octagon lantern in the center, beneath which burned nearly a
ton of charcoal, in a superb brazier of carved bronze, was
crowded from the floor to the light, flying galleries, with all
the flower of the Northern counties, ladies as well as knights
and nobles, attracted by one of those untraceable but ubiquitous
rumors, which so often precede remarkable events, to the
effect that something of more than ordinary moment was
likely to occur at the present assize. Among this noble assemblage,
all of whom rose to their feet, with a heavy rustle
of furred and embroidered robes, and a suppressed murmur of
applause, as the judges entered, conspicuous on the right-hand
side of the nave was Sir Foulke d'Oilly, attended by two or
three barons and bannerets of his immediate train, and not
less than twenty knights, who held fiefs under him.

What, however, was the astonishment of the assembly,
when, after the guard of pensioners, in royal livery, armed
with halberts, which followed the judges, Clarencieux, king-at-arms,
in his magnificent costume, supported by six pursuivants,

in their tabards, with trumpets, made his appearance
in the nave, and then two personages, no less than Humphry
de Bohun, Lord High Constable, and William de Warrenne,
Earl Mareschal of England, indicating by their presence that
the court, about to be held, would be one of chivalry as well
as of justice. Sir Yvo de Taillebois, and other officers of the
crown, followed in the order; the justiciary and other high
dignitaries took their seats, the trumpets sounded thrice, and,
with the usual formalities, “the King's court” was declared
open.

It was remarked afterward, though at the time no one
noticed it, none suspecting the cause, that when the heralds
and pomp, indicating the presence of a Court of Chivalry
made their appearance, the face of Sir Foulke d'Oilly flushed
fiery-red for a moment, and then turned white as ashes, even
to the lips; and that he trembled so violently, that he was
compelled to sit down, while all the rest were standing.

During the first three days of the assize, though many
causes were tried of great local and individual interest, nothing
occurred to satisfy the secret and eager anticipations of the
excited audience, nothing to account for the unusual combination
of civil and military powers on the judicial bench; and
though all manner of strange rumors were afloat, there were
none certainly that came very near the truth.

On the fourth morning, however, the crier, at command of
the court, called Sir Foulke d'Oilly; who, presently appearing,
stated that he was there, in pursuance of the king's order, to
prosecute his claim to the possession of one Eadwulf the Red,
alias Kenric, a fugitive villeyn, who had fled from his manor
of Waltheofstow, within the precincts of Sherwood Forest,

against his, Sir Foulke d'Oilly's, will; and who was now in
the custody of the sheriff of the county. He concluded by
appointing Geoffrey Fitz Peter and William of Tichborne,
two sergeants, learned in the law, as his counsel.

The sheriff of the county was then called into court, to
produce the body of the person at issue, and Kenric was
placed at the bar, his bondsmen surrendering him to take his
trial.

Sir Yvo de Taillebois then stated the preliminary proceedings,
the arrest of Kenric by seizure, his purchasing a writ
de libertate probando; and that, whereas he, the Sheriff,
might not try that question in his court, it was now brought
up before the Eyre of justices for trial.

Kenric was then called upon to plead, which he did, by
claiming to be a free man, and desiring liberty to prove the
same before God and a jury of his countrymen.

The sheriff was thereupon commanded to impannel a jury;
and this was speedily accomplished, twelve men being selected
and sworn, six of whom were belted knights, two esquires of
Norman birth, and four Saxon franklins, as they were now
termed, who would have been thanes under their ancient
dynasty, all free and lawful men, and sufficient to form a jury.

Then, the defendant in the suit being a poor man, and of
no substance, counsel, skilled in the law, were assigned him
by the court, Thomas de Curthose, and Matthew Gourlay,
that he might have fair show of justice; and so the trial was
ordered to proceed.

Then Geoffrey Fitz Peter rose and opened the case by
stating that they should prove the person at the bar to be a
serf, known as “Eadwulf the Red,” who has escaped from the

manor of his lord at Waltheofstow, in Sherwood Forest,
against his lord's will, on the 13th day of July last passed—
that he had killed a deer, with a cross-bolt, on that same day,
in the forest between Thurgoland and Bolterstone—and afterward
murdered the bailiff of the manor of Waltheofstow, as
aforesaid, with a similar weapon, at or near the same place,
which weapons would be produced in court, and identified by
comparison with corresponding weapons, and the arbalast to
which they belong, found in the possession of the prisoner,
when taken at Kentmere in Westmoreland—that he had been
hunted hot-foot, with bloodhounds, through the forest, and
across the moors to the Lancaster sands, when he had escaped
only by the aid of the fatal and furious tide which had overwhelmed
the pursuing horsemen—that he had been seen to
land on the shore of Westmoreland, by a party of the pursuers,
who had escaped the flood-tide by skirting the coastline,
and had been traced, foot by foot, by report of the natives
of the country, who had heard of the arrival of a fugitive
serf in the neighborhood, until he was captured in a cottage
beside Kentmere, on the 10th day of October of this present
year. And to prove this, he called Sir Foulke d'Oilly.

He, being sworn, testified that he knew, and had often seen,
his serf “Eadwulf the Red,” on the manor of Waltheofstow,
and fully believed the person at the bar to be the man in
question. He had joined the pursuers of the fugitive on the
day after the catastrophe of the sands, had been engaged in
tracing him to the cottage on Kentmere, and fully believed
the person captured to be the same who was traced upward
from the sands. Positively identified and swore to the person
at the bar, as the man captured on the 10th day of October,

and to the crossbow and bolts produced in court, and branded
with the name “Kenric,” as taken in his possession.

Being cross-examined—he could not swear positively to
any personal recollection of the features of “Eadwulf the
Red,” or that the person at the bar was the man, or resembled
the man, in question. Believed him to be the man Eadwulf,
because it was the general impression of his people that he
was so.

Thomas de Curthose said—“This, my lords, is mere hearsay,
and stands for naught.” And Sir Ranulf de Glanville
bowed his head, and replied—“Merely for naught.”

Then Sir Foulke d'Oilly, being asked how, when he assumed
this person's name to be Eadwulf, he ascribed to him
the ownership of weapons stamped “Kenric,” he replied, that
“Kenric” was a name prepared aforehand, to avert suspicion,
and assumed by Eadwulf, so to avoid suspicion.

Being asked where he showed that Eadwulf had assumed
such other name, or that the name “Kenric” had ever been
assumed by one truly named “Eadwulf,” he replied, that “It
was probable.”

Thomas de Curthose said—“That is mere conjecture.”

And, again, the justiciary assented.