University of Virginia Library

24. CHAPTER XXIV.
THE ACQUITTAL.

Then was called Ralph Brito.

He, being sworn, deposed thus—Is a man-at-arms of Sir
Foulke d'Oilly; has served him these twenty years and over,
in France, in Wales, and in Ireland. Has dwelt the last ten
years, until this year now current, at Sir Foulke's castle
of Fenton in the Forest; since the decease of Sir Philip de
Morville, has been one of the garrison of Waltheofstow.
Knows Eadwulf the Red perfectly well—as well as his own
brother. Has known him these ten years back, when he was
gross thrall to Sir Philip de Morville. Has seen him since
the death of Sir Philip. Has seen him daily, since he made
one of the garrison of Waltheofstow, until the twelfth day of
September last, when he saw him for the last time, until he
was taken in the cottage on Kentmere. The person at
the bar is the man. The person at the bar is Eadwulf the
Red, and is also the man who was taken at the cottage.

They are the same. Did not follow the prisoner with the
bloodhounds; came up, with my lord, the day after the
accident on the sands. Was engaged in the pursuit till he
was taken; was present at the arrest. The weapons in court
were taken in the prisoner's house; took them down himself,
from above the mantle-piece. The prisoner admitted them to
be his weapons.

Matthew Gourlay, cross-examining, asked him—“You
swear, certainly, that the man at the bar is he, known, in the
time of Sir Philip de Morville, as Eadwulf the Red?

“I do.”

“Of your own knowledge?”

“Of my own knowledge.”

“Why was he called the Red?”

“Because he was red.”

“What part of him?”

“His hair and beard.”

“Of what color are your own hair and beard?”

“Red.”

It so happened that the close-curled hair and the beard,
knotted like the wool of a poodle dog, of this man, were of
the brightest and most fiery hue of which the human hair is
susceptible; while that of Kenric was of a deep, glossy
auburn, falling in loose waves from a broad fair forehead.

“And what color is the person's at the bar?”

“Why, reddish, I suppose,” said Ralph Brito, sullenly.

“About the same color with your own, ha? Well, you may
go down,” he said, satisfied that he had somewhat damaged
the evidence, even of this positive perjurer.

Andrew of Spyinghow was then called, and, being sworn,

testified, that “he is the brother of Ralph Wetheral, the
bailiff of Waltheofstow, who was found dead in the forest
of Sherwood, on the 13th day of September last passed;
and of Hugonet the Black, seneschal of Waltheofstow, as
aforesaid, who was lost in the sands of Lancaster, on the
17th day of the said month. He and his brothers were
known as the three spears of Spyinghow. He knew the
serf, spoken of as Eadwulf the Red, as well as he knew his
own face in the mirror. Had known him any time the last
ten years, as serf, both to Sir Philp de Morville, and to his
own lord, Sir Foulke d'Oilly. Had seen him last on the
night of September the 12th, in the castle court at Waltheofstow;
but had tracked him thence with bloodhounds to
the verge of Borland Forest; had followed him by hue and
cry across the moors to the sands of Morecambe Bay; had
seen the fugitive crossing the bay; had seen him land on the
Westmoreland shore, nor ever had lost the track of him,
until he saw him taken in the cottage at Kentmere. The
prisoner at the bar is the man.” The witness then proceeded
at length to describe the discovery of the slain stag, and the
murdered bailiff, the manner of their deaths, the weapons
found in the mortal wounds both of the beast and the man,
and of the taking up of the scent of the fugitive from the spot
where the double killing had taken place, by the bloodhounds.

Here Thomas de Curthose said—“This is a case we are
trying, in this court of common pleas, of neifty, de nativo
habendo; not a case of deer-slaying, in a forest court, or of
murder, in a criminal court. Therefore, this evidence, as
irrelevant, and tending to prejudice the jury against the
prisoner, should be ruled out.”

Geoffrey Fitz Peter said; “This testimony goeth only
to prove the weapons, which were carried and used by the
fugitive, be he who he may, at that place and that time
stated, to be the same with those found in possession of the
person at the bar, and owned by him to be his property
And this testimony we propose to use, in order to show that
the person at the bar was actually at the place at the time
stated as aforesaid, and is the very fugitive in question; not
that he is the killer of the deer, or the murderer of the man,
which it is not in the province of this court, or in our purpose
to examine.”

Sir Ranulf de Glanville said—“To prove the identity of the
person at the bar with the alleged fugitive, this evidence
standeth good, but not otherwise.”

His examination being resumed, the witness described,
vividly and accurately, the pursuit of the fugitive with bloodhounds;
his superhuman efforts to escape, both by speed of
foot and by power of swimming; his wonderful endurance,
and, at last, his vanishing, as it were, without leaving a single
trace, either for sight or scent, in the midst of a bare moor.
Great sympathy and excitement were manifested throughout
the whole court, at this graphic narrative; and all eyes were
turned, especially those of the fair sex, to the fine athletic person
and noble features of Kenric, as he stood at the bar, alone
of all that company, impassive and unmoved, with looks of
pity and admiration.

But Kenric only shook his head, with a grave smile and a
quiet wafture of the hand, as if putting aside the undeserved
sympathy.

But when the witness proceeded to describe the rediscovery

of the fugitive crossing the sands, on the second morning
after his temporary evasion, the desperate race against the
speed of mortal horses, against the untamed velocity of the
foam-crested coursers of the roaring ocean tide; when he depicted
the storm bursting in the darkness, as of night, over
the mailed riders and barbed horses struggling in the pools
and quagmires; the fierce billows trampling over them, amid
the tempest and the gloom; and the sun shining out on the
face of the waters, and lo! there were none there, save Hugonet
the Black, sitting motionless on his armed horse like a
statue, until it should please the mounting tide to overwhelm
him, from which he could by no earthly means escape, and
the fugitive slave floating, in his chance-found coracle, within
two oars' length of that devoted man, the excitement in the
vast assembly knew no bounds. There were wild cries and
sobs, and the multitude rocked and heaved to and fro, and
several women swooned, and were carried out of the court-house
insensible, and seemingly lifeless. It was many minutes
before order could be restored.

Then the bolts or quarrels, which had been extracted from
the slaughtered deer and the murdered man were produced in
court, yet stained with the blood, and bearing the name of
Kenric branded upon the wooden shafts with an iron stamp.
The crossbow and bolts, found in Kenric's cottage, and
admitted by him to be his property, were also produced, and
the quarrels found in the forest tallied from point to point,
even to a broken letter in the branding, with those which he
acknowledged to be his; and an expert armorer being summoned,
testified that those quarrels were proper ones for that

very arbalast, and would not fit one other out of twenty,
it being of unusual construction.

At this point, not a person in the court, from the lowest
spectator to the high justiciary on the bench, but believed the
case to be entirely made out; and some of the crown lawyers
whispered among themselves, wondering why the prisoner
had not been arraigned in the forest or criminal courts,
for the higher offenses, which seemed to be proved against
him.

Thomas de Curthose, cross-examining the witness, asked—

“The man at the bar is Eadwulf the Red?”

“He is.”

“On your oath, and of your own knowledge?”

“On my oath, and of my own knowledge.”

“Did you ever hear that `Eadwulf the Red' should call
himself, or be called by others, `Kenric.”'

“Never, until now.”

“And how have you heard it now?”

“I have seen it stamped on his quarrels.”

“Had `Eadwulf the Red' a brother?”

“A brother?”

“Had `Eadwulf the Red' a brother?”

“I have heard say he had.”

“Of your own knowledge, on your oath?”

“He had a brother.”

“What was his name?”

“I—I have forgotten.”

“On your oath! on your oath, sirrah!” thundered Thomas
de Curthose. “Was not his name `Kenric?' ”

“I think it was `Kenric.' ”

“Look at the person at the bar.” The man did so; but
reluctantly, and with an evident tremor.

“Is not that man `Kenric,' the brother of `Eadwulf the
Red?' ”

“That man is `Eadwulf the Red'—I have sworn it.”

“And art forsworn, in swearing it. But again, thou hast
sworn, `that on the third morning, after taking scent of the
fugitive from the place of the deer and manslaying, and after
hunting him constantly with bloodhounds, you lost all track
of him on the bare moor in Borland Forest?' ”

“Why, ay! I have sworn that; it is quite true,” said the
man, seemingly reassured, at the change of the line of examination.

“I doubt it not. Now, when did the hounds take the scent
again?”

“Why, not at all. We saw he was making for the sands,
and so squandered ourselves in parties, and on the second
morning, at daybreak, saw him crossing them.”

“How far off was he, when you saw him?”

“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.

“Well, mother, and who art thou?” asked the justiciary,
in a kindly tone, “and what hast thou to tell us in this
matter?”

“I am Bertha,” she replied, in tones singularly clear and
distinct, “the wife of Werewulf, the son of Beowulf, who was
henchman to Waltheof, who was the Lord of Waltheofstow,
before the Normans came to England.”

“A serf to testify in proof of a serf's liberty!” said William
of Tichborne. “Such evidence may not stand.”

“She is no serf, my lord,” said Gourlay, “but as free as my
brother of Tichborne. Let the Sheriff of Lancaster be sworn.”

So, Sir Yvo de Taillebois being sworn in his place, testified:
“Bertha, the wife of Werewulf, is a free woman. I bought
her myself, with her own free consent, of my friend Sir
Philip de Morville, and manumitted her, for reasons of mine
own.”

“Let Bertha proceed.”

“I am the mother of seven sons, in lawful wedlock born;

five of whom, and three grandsons, sleep with their fathers,
in the kirkyard of Waltheofstow; two, as I believe, yet draw
the breath of life, biding God's good time; `Kenric the
Dark,' my second born, and `Eadwulf the Red,' my youngest.
Kenric stands yonder, at the bar; Eadwulf is a wanderer on
the moorland.”

Being cross-examined; “Would she know her sons any
where; would she know them apart?”

“Know my own sons!” she made answer; “the flesh of
my own flesh, the bone of my own bone! By day or by
night, in darkness or in light, by the lowest sound of the voice,
by the least pressure of the hand, by the feeling of their hair,
or the smell of their breath, would I know them, and know
them apart, any where. Yon is Kenric, and Kenric is no
more like to Eadwulf, than day is to darkness, or a bright
summer sunshine to a thunder-cloud in autumn.”

“Call Aradas de Ratcliffe.”

He, being sworn, was asked;

“Know you the person at the bar; and, if ay, what is his
name?”

“I know him well; his name is Kenric; his condition, so
far as I know, a freeman, and verdurer to Sir Yvo de Taillebois.”

“When did you see him first, to know him?”

“In July last, when my Lord of Taillebois returned from
Yorkshire, and brought him along in his train.”

“Have you seen him in the mean time; and, if ay, how
often?”

“Almost daily. He is one of our best foresters, and we
rarely hunt or hawk without him.”

“Can you name any one day, in particular, when you saw
the person at the bar, between July and October, to know
him?”

“I can. On the 12th day of last September, at eight
o'clock in the evening, we being then at supper, Kenric came
into the hall, by permission, to bring tidings that he had
tracked the great mouse-colored hart-royal, which has been
known in the dales this hundred years, into a deep dingle at
the head of Yewdale, and that he was laid up for the night.
On the 13th, we were astir before day, and Kenric led us to
the lair; and we hunted that hart all day long on the 13th,
and killed him at sunset on the skirts of Skiddaw. We had
to pass the night on the mountain, and I well remember how
Kenric was the best man in collecting firing and making all
things comfortable for the night, it being cold, and a keen
white-frost.”

Being cross-examined—“I know it was on the 12th that
he brought the tidings, because my rents fall due on that day
at Rydal Manor, and I had ridden over to collect them, and
returned home somewhat late for supper, and had just sat
down to table, very hungry, when he came in with the news
of the great hart-royal; and that spoiled my supper, for the
thought of killing that hart on the morrow took away all my
appetite.”

“And did you kill him, sir?” asked Sir Ranulf de Glanville
from the bench, eagerly; for if he were famous as a
lawyer, he was little less so as a woodman.

“With a clothyard-shaft from my own bow, Sir Ranulf, at
twenty score yards and thirteen.”

“Well, sir, it was a very pretty shot,” returned the high

justiciary, nothing abashed by the smile which ran through
the court; “and you have given very pretty evidence. Have
you any more witnesses, Master Gourlay? Methinks the jury
have had almost enough of this.”

“We will detain your lordships but a very little longer
William Fitz Adhelm.”

And he knew Kenric well, and remembered his service
particularly on that 13th day of September; and, to prove
the date, he produced a record of the chase, carved on ivory,
which was hung from the antlers of that celebrated deer, in
the great hall at Hawkshead Castle, recording the length of
the hunt, the dogs and horses engaged, and all the circumstances
of the great event.

The bailiff of Kendal was then called, who swore that he
knew Kenric, as forester and verdurer, since July last, and
that he had seen him since that date almost daily; for that
three days had never passed without his bringing him game
for his guest-table, according to the orders of his lord.

“And here,” said Thomas de Curthose, “we might safely
rest, stating merely, in explanation, that the true `Eadwulf
the Red,' brother of the person at the bar, did, we believe, all
the things stated by the witnesses to this court, and did leave,
at the cottage on Kentmere, the crossbow produced before the
court, which he had previously purloined from his brother,
while at Waltheofstow. But desiring to place this man's
freedom on record beyond a question or a peradventure, we
will call Sir Yvo de Taillebois.”

He, of course, testified to all that is known to the readers
of this history, and which was not known to the jury or the
court; to his own agency, namely, in the purchase and manumission

of the serf Kenric, and to his establishment of him as
a free tenant on his lands of Kentmere, in Kendal.

“And here we rest,” said Thomas of Curthose, “nor shall
trouble the court so much as to sum up what is so palpable.”

The complainants declining to say any thing farther, Ranulf
de Glanville said—

“It is scarce necessary that I should say any thing to this
jury, seeing that if the evidence of Sir Yvo de Taillebois be
received as credible, the case is at an end. But I would say
that, without his testimony, the defense might have rested
safely, when they had shown that the alleged fugitive, `Kenric,'
was a resident here in Westmoreland, on the day, and
long before the day, when he is charged on oath to have been
a serf in Yorkshire. For if A claim a horse, now in the possession
of B, swearing, and bring in witnesses to swear, that
he, A, lost, or had stolen from him, the said horse, on such a
day; and B bring sufficient and true witnesses to satisfy the
jury that the said horse, so claimed was in his, B's, possession,
days, weeks, or months before the `such a day' on which A
avers to have lost or had the said horse stolen from him—
then it is to be presumed, not that A and his witnesses are
mistaken as to the day, on which the horse was lost, seeing
that he and they have sworn positively to the day, and that
it is in him and them, alone, and on no others, truly to know
the day on which the said horse was lost or stolen—but that
the horse is another horse altogether, and not that horse lost
or stolen on the day averred; inasmuch as this horse claimed
was, on that day, and theretofore and thereafter, standing
here, and could not therefore be lost or stolen elsewhere.
This is the law, gentlemen, of an ox, or an ass, or a goat, or

a piece of furniture, or of any thing that is property, dead or
living. Much more so, therefore, of the liberty of a man.
For God forbid that on this earth of England the liberty of
a man, which is even the dearest thing he hath on earth,
should be more lightly jeoparded, or less securely guaranteed
to him, than the value of his ox, or his ass, or his goat, or
his chattel, whatsoever it may be, that is claimed of him.
And now, gentlemen of the jury, I will detain you no longer.
You may retire, if you wish to deliberate on your verdict,
whether the person at the bar be `Eadwulf the Red,' gros
thrall of Sir Foulke d'Oilly, or `Kenric the Dark,' and a true
freeman.”

“So please the court, we are agreed,” was the unanimous
answer of the jurymen.

“And how will you render your verdict?”

“By our foreman, Sir Ralph Egerton, of Egerton.”

“We find,” said the foreman, in answer to the eye of the
justiciary, “that the person at the bar, `Kenric, surnamed
the Dark,' is a free man, and that Sir Foulke d'Oilly hath no
claim against his liberty or person. And we farther recommend
that the witnesses for the plaintiff, more especially
Ralph Brito, and Andrew of Spyinghow, be taken into custody,
and held to answer to a charge of perjury.”

“You have said well, gentlemen, and I thank you for your
verdict,” said the justiciary. “Clerk of the court, record the
verdict; and see that warrants issue against Ralph de Brito
and Hugh of Spyinghow. Kenric, thou art free; free of all
charge against thee; free to walk boldly and uprightly before
God; and, so far as you do no wrong, to turn aside for fear
of no man. Go, and thank God, therefore, that you are born

on English soil, where every man is held free, till he is proved
a slave; and where no man can be delivered into bondage,
save on the verdict of a jury of his countrymen. This is the
law of England. God save the King. Amen!”

Then, turning to Sir Yvo de Taillebois, “You brought that
fellow off with flying colors! Now, you will sup with me, at
my lodgings, at nine. My brothers of the bench will be with
us, and my lord high constable, and the earl mareschal;
and we will have a merry time of it. They have choice oysters
here, and some lampreys; and that boar's head, and the
venison, you sent us, are superb. You will come, of course.”

“With pleasure,” said De Taillebois, “but”—and he whispered
something in his ear.

“Ha! do you fear so? I think not; but we will provide
for all chances; and, in good time, here comes Clarencieux.
Ho! Clarencieux, sup with us, at nine to-night; and, look
you, we shall want Sir Foulke d'Oilly in court to-morrow. I
do not think that he will give us the slip; but, lest he try it,
let two of your pursuivants and a dozen halberdiers keep
their eye on him till the court sits in the morning; and if he
offer to escape, arrest him without scruple, and have him to the
coustable's lodging. Meantime, forget not nine of the clock,
in my lodgings.”