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

by Henry William Herbert

  CHAPTER XXIV.

  THE ACQUITTAL.

  No ceremony that to great ones 'longs, Not the king's crown, nor the deputed sword, The marshal's truncheon, nor the judge's robe, Become them with one half so good a grace As "justice" does.

  MEASURE FOR MEASURE.

  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, andin 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 ofSir Philip de Morville, has been one of the garrison of Waltheofstow.Knows Eadwulf the Red perfectly well--as well as his own brother. Hasknown him these ten years back, when he was gross thrall to Sir Philipde Morville. Has seen him since the death of Sir Philip. Has seen himdaily, since he made one of the garrison of Waltheofstow, until thetwelfth 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 baris the man. The person at the bar is Eadwulf the Red, and is also theman who was taken at the cottage. They are the same. Did not followthe prisoner with the bloodhounds; came up, with my lord, the dayafter the accident on the sands. Was engaged in the pursuit till hewas taken; was present at the arrest. The weapons in court were takenin the prisoner's house; took them down himself, from above themantle-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 Philipde 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 likethe wool of a poodle dog, of this man, were of the brightest and mostfiery hue of which the human hair is susceptible; while that of Kenricwas of a deep, glossy auburn, falling in loose waves from a broad fairforehead.

  "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," hesaid, satisfied that he had somewhat damaged the evidence, even ofthis positive perjurer.

  Andrew of Spyinghow was then called, and, being sworn, testified, that"he is the brother of Ralph Wetheral, the bailiff of Waltheofstow, whowas found dead in the forest of Sherwood, on the 13th day of Septemberlast passed; and of Hugonet the Black, seneschal of Waltheofstow, asaforesaid, who was lost in the sands of Lancaster, on the 17th day ofthe said month. He and his brothers were known as the three spears ofSpyinghow. He knew the serf, spoken of as Eadwulf the Red, as well ashe knew his own face in the mirror. Had known him any time the lastten years, as serf, both to Sir Philip de Morville, and to his ownlord, Sir Foulke d'Oilly. Had seen him last on the night of Septemberthe 12th, in the castle court at Waltheofstow; but had tracked himthence with bloodhounds to the verge of Borland Forest; had followedhim by hue and cry across the moors to the sands of Morecambe Bay; hadseen the fugitive crossing the bay; had seen him land on theWestmoreland shore, nor ever had lost the track of him, until he sawhim taken in the cottage at Kentmere. The prisoner at the bar is theman." The witness then proceeded at length to describe the discoveryof the slain stag, and the murdered bailiff, the manner of theirdeaths, the weapons found in the mortal wounds both of the beast andthe man, and of the taking up of the scent of the fugitive from thespot where the double killing had taken place, by the bloodhounds.

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

  Geoffrey Fitz Peter said; "This testimony goeth only to prove theweapons, which were carried and used by the fugitive, be he who hemay, at that place and that time stated, to be the same with thosefound in possession of the person at the bar, and owned by him to behis property. And this testimony we propose to use, in order to showthat the person at the bar was actually at the place at the timestated as aforesaid, and is the very fugitive in question; not that heis the killer of the deer, or the murderer of the man, which it is notin the province of this court, or in our purpose to examine."

  Sir Ranulf de Glanville said--"To prove the identity of the person atthe bar with the alleged fugitive, this evidence standeth good, butnot otherwise."

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

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

  But when the witness proceeded to describe the rediscovery of thefugitive crossing the sands, on the second morning after his temporaryevasion, the desperate race against the speed of mortal horses,against the untamed velocity of the foam-crested coursers of theroaring ocean tide; when he depicted the storm bursting in thedarkness, as of night, over the mailed riders and barbed horsesstruggling in the pools and quagmires; the fierce billows tramplingover them, amid the tempest and the gloom; and the sun shining out onthe face of the waters, and lo! there were none there, save Hugonetthe Black, sitting motionless on his armed horse like a statue, untilit should please the mounting tide to overwhelm him, from which hecould by no earthly means escape, and the fugitive slave floating, inhis chance-found coracle, within two oars' length of that devoted man,the excitement in the vast assembly knew no bounds. There were wildcries and sobs, and the multitude rocked and heaved to and fro, andseveral women swooned, and were carried out of the courthouseinsensible, and seemingly lifeless. It was many minutes before ordercould be restored.

  Then the bolts or quarrels, which had been extracted from theslaughtered deer and the murdered man were produced in court, yetstained with the blood, and bearing the name of Kenric branded uponthe wooden shafts with an iron stamp. The crossbow and bolts, found inKenric's cottage, and admitted by him to be his property, were alsoproduced, and the quarrels found in the forest tallied from point topoint, even to a broken letter in the branding, with those which heacknowledged 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 unusualconstruction.

  At this point, not a person in the court, from the lowest spectator tothe high justiciary on the bench, but believed the case to be entirelymade out; and some of the crown lawyers whispered among themselves,wondering why the prisoner had not been arraigned in the forest orcriminal courts, for the higher offenses, which seemed to be provedagainst 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 becalled 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, andwith 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, 'thaton the third morning, after taking scent of the fugitive from theplace of the deer and manslaying, and after hunting him constantlywith bloodhounds, you lost all track of him on the bare moor inBorland 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 sosquandered ourselves in parties, and on the second morning, atdaybreak, 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 wewere right."

  "You may stand down. Who is next?"

  Four other witnesses followed, who all swore positively to the personof the prisoner, as "Eadwulf the Red," and testified to various pointsin the circumstances of the pursuit and capture, all tending to theidentification of Kenric with the fugitive; and though the counsel forthe defense had succeeded, more or less, in shaking the credit of someof the witnesses with the jury, and of raising a doubt concerning theexistence of a brother, with whom the fugitive might have beenconfounded, no head had yet been made against the direct testimony ofsix witnesses, swearing positively to his person, and against thedamaging circumstantial evidence of the crossbow and quarrels.

  When the counsel for the plaintiff rested, and the court adjourned atten o'clock, for dinner, not a lawyer in the court, except thoseretained 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, andaddressed the six judges--

  "May it please your lordships, we shall right shortly prove to yoursatisfaction and to that of this honorable jury that this case lies ina 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 wascalled, 'Eadwulf the Red,' though there may be some slight similarityof 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 inSherwood Forest, or within fifty miles of it, on the 13th day ofSeptember last passed, or on any day within two months thereof.Thirdly, we shall show you that this 'Kenric the Dark' is not serf orvilleyn to Sir Foulke d'Oilly, or to any Sir in England; but a freeman, and free tenant of the Lord of Kendal, in the county ofWestmoreland."

  Then William of Tichborne, said--"Nay! Brother Gourlay, do not provetoo much against us," and he laughed sneeringly; "else thou wiltconvict our witnesses as mansworn."

  And Thomas de Curthose laughed, and said--"Marry will we, and pillorythem for it, likewise."

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

  "Well, mother, and who art thou?" asked the justiciary, in a kindlytone, "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 toWaltheof, who was the Lord of Waltheofstow, before the Normans came toEngland."

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

  "She is no serf, my lord," said Gourlay, "but as free as my brother ofTichborne. 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, andmanumitted 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 ofWaltheofstow; two, as I believe, yet draw the breath of life, bidingGod's good time; 'Kenric the Dark,' my second born, and 'Eadwulf theRed,' my youngest. Kenric stands yonder, at the bar; Eadwulf is awanderer on the moorland."

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

  "Know my own sons!" she made answer; "the flesh of my own flesh, thebone of my own bone! By day or by night, in darkness or in light, bythe lowest sound of the voice, by the least pressure of the hand, bythe feeling of their hair, or the smell of their breath, would I knowthem, and know them apart, any where. Yon is Kenric, and Kenric is nomore like to Eadwulf, than day is to darkness, or a bright summersunshine 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, andbrought 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 orhawk without him."

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

  "I can. On the 12th day of last September, at eight o'clock in theevening, we being then at supper, Kenric came into the hall, bypermission, to bring tidings that he had tracked the greatmouse-colored hart-royal, which has been known in the dales thishundred years, into a deep dingle at the head of Yewdale, and that hewas laid up for the night. On the 13th, we were astir before day, andKenric led us to the lair; and we hunted that hart all day long on the13th, and killed him at sunset on the skirts of Skiddaw. We had topass the night on the mountain, and I well remember how Kenric was thebest man in collecting firing and making all things comfortable forthe night, it being cold, and a keen white frost."

  Being cross-examined--"I know it was on the 12th that he brought thetidings, because my rents fall due on that day at Rydal Manor, and Ihad ridden over to collect them, and returned home somewhat late forsupper, and had just sat down to table, very hungry, when he came inwith the news of the great hart-royal; and that spoiled my supper, forthe thought of killing that hart on the morrow took away all myappetite."

  "And did you kill him, sir?" asked Sir Ranulf de Glanville from thebench, eagerly; for if he were famous as a lawyer, he was little lessso as a woodman.

  "With a cloth-yard shaft from my own bow, Sir Ranulf, at twenty scoreyards 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 youhave given very pretty evidence. Have you any more witnesses, MasterGourlay? Methinks the jury have had a
lmost enough of this."

  "We will detain your lordships but a very little longer, William FitzAdhelm."

  And he knew Kenric well, and remembered his services particularly onthat 13th day of September; and, to prove the date, he produced arecord of the chase, carved on ivory, which was hung from the antlersof that celebrated deer, in the great hall at Hawkshead Castle,recording the length of the hunt, the dogs and horses engaged, and allthe 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 himsince that date almost daily; for that three days had never passedwithout his bringing him game for his guest-table, according to theorders of his lord.

  "And here," said Thomas de Curthose, "we might safely rest, statingmerely, in explanation, that the true 'Eadwulf the Red,' brother ofthe person at the bar, did, we believe, all the things stated by thewitnesses to this court, and did leave, at the cottage on Kentmere,the crossbow produced before the court, which he had previouslypurloined from his brother, while at Waltheofstow. But desiring toplace this man's freedom on record beyond a question or aperadventure, we will call Sir Yvo de Taillebois."

  He, of course, testified to all that is known to the readers of thishistory, and which was not known to the jury or the court; to his ownagency, namely, in the purchase and manumission of the serf Kenric,and to his establishment of him as a free tenant on his lands ofKentmere, in Kendal.

  "And here we rest," said Thomas of Curthose, "nor shall trouble thecourt so much as to sum up what is so palpable."

  The complainants declining to say any thing farther, Ranulf deGlanville 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 ascredible, the case is at an end. But I would say that, without histestimony, the defense might have rested safely, when they had shownthat the alleged fugitive, 'Kenric,' was a resident here inWestmoreland, on the day, and long before the day, when he is chargedon oath to have been a serf in Yorkshire. For if A claim a horse, nowin 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 aday; and B bring sufficient and true witnesses to satisfy the jurythat 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 lostor had the said horse stolen from him--then it is to be presumed, notthat A and his witnesses are mistaken as to the day, on which thehorse was lost, seeing that he and they have sworn positively to theday, and that it is in him and them, alone, and on no others, truly toknow the day on which the said horse was lost or stolen--but that thehorse is another horse altogether, and not that horse lost or stolenon the day averred; inasmuch as this horse claimed was, on that day,and theretofore and thereafter, standing here, and could not thereforebe lost or stolen elsewhere. This is the law, gentlemen, of an ox, oran ass, or a goat, or a piece of furniture, or of any thing that isproperty, dead or living. Much more so, therefore, of the liberty of aman. For God forbid that on this earth of England the liberty of aman, which is even the dearest thing he hath on earth, should be morelightly jeoparded, or less securely guaranteed to him, than the valueof his ox, or his ass, or his goat, or his chattel, whatsoever it maybe, that is claimed of him. And now, gentlemen of the jury, I willdetain you no longer. You may retire, if you wish to deliberate onyour verdict, whether the person at the bar be 'Eadwulf the Red,'gross thrall of Sir Foulke d'Oilly, or 'Kenric the Dark,' and a truefreeman."

  "So please the court, we are agreed," was the unanimous answer of thejurymen.

  "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 freeman, and that Sir Foulke d'Oilly hath no claim against his liberty orperson. And we farther recommend that the witnesses for the plaintiff,more especially Ralph Brito, and Andrew of Spyinghow, be taken intocustody, 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 seethat warrants issue against Ralph de Brito and Hugh of Spyinghow.Kenric, thou art free; free of all charge against thee; free to walkboldly and uprightly before God; and, so far as you do no wrong, toturn aside for fear of no man. Go, and thank God, therefore, that youare born on English soil, where every man is held free, till he isproved a slave; and where no man can be delivered into bondage, saveon the verdict of a jury of his countrymen. This is the law ofEngland. God save the King. Amen!"

  Then, turning to Sir Yvo de Taillebois, "You brought that fellow offwith flying colors! Now, you will sup with me, at my lodgings, atnine. My brothers of the bench will be with us, and my lord highconstable, and the earl mareschal; and we will have a merry time ofit. They have choice oysters here, and some lampreys; and that boar'shead, and the venison you sent us, are superb. You will come, ofcourse."

  "With pleasure," said De Taillebois, "but"--and he whispered somethingin 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 withus, at nine to-night; and, look you, we shall want Sir Foulke d'Oillyin 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 halberdierskeep their eye on him till the court sits in the morning; and if heoffer to escape, arrest him without scruple, and have him to theconstable's lodging. Meantime, forget not nine of the clock, in mylodgings."