Bill Long 1/18/05
The Loss Attendant upon the Cry "Craven"
No one really knows the etymological origin of the term "craven." But we learn from Blackstone, who no doubt gives us an idealized picture of life in days of old, that if an appellant cries "craven" in the trial of battle, his life is spared but he suffers severe civil penalties. Blackstone didn't invent what he said. He took the substance of his account almost from the greatest expositor of the common law before him, Edward Coke. In the third volume of his Institutes (1634), Coke says:
"If he become recreant, that is, a crying Coward or Craven he shall for his perjury lose liberam legem."
He is being punished "for his perjury," because he has sworn on the Bible that the appellee has committed the felony that led to battle. When appellant was not able to defeat the appellee, God showed the appellant to be false, i.e., a 'perjurer.'
Four Additional Terms
So once he cries "craven," [and I say "he" because women don't have to fight in their own person. I want to write an essay on this, because this "privilege" went hand in hand with diminished ability of women to bring charges of felony...see Magna Carta, chapter 54], a lot of things happened. The first thing is that by doing so he is recreant. Make sure you keep the "n" in recreant or you may be playing (recreating) with words. Bracton, in 1260, is the first to use the term referred to it as a "verbum odiosum"--a hateful word. Anyone who "gives up" in such a situation therefore is a person who is shamed--he is shown to be a perjurer in the sight of God and all the people. By the seventeenth century the word recreant took on a theological significance and referred to a person who was an apostate (leaving the true faith). A person who "turned recreant" is one who leaves the faith.
But the recreant (both an adjective and noun) not simply faces the shame of loss and perjury. He is deprived of his liberam legem--his legal freedom. He becomes, in the words of Blackstone quoted in the previous essay, infamous. The word infamy comes from the Latin infamis and means "having a bad name, of ill repute," or "notorious." Interestingly enough, if you displayed the infamis digitus at someone, you were not displaying to them your pinky. But, the infamis digitus had its origin, acording to the OLD, "as a defence against the evil eye." Wow. So, if someone gave you the evil eye in antiquity, thereby supposedly subjecting you to some spell or evil consequences, you just have to display the infamis digitus to drive it away. It is reminiscent of Luther's line that when he was oppressed by the devil, he would "drive him away by a fart." We have come so so far, haven't we?
Back to infamy and infamous. According to the OED:
"an infamous person is, until he has served his sentence, disqualified for any public appointment, any public pension or allowance, the right to sit in Parliament or exercise any francise. He is permanently disqualified (unless restored by a free pardon) from serving as a juror; and, down to 1844, was incapacitated from giving evidence in a court of law."
The Limitations of Infamy
Thus, if a person was living in infamy, he would be unable to have access to the public benefits of being a citizen. It doesn't appear, however, that he would be fully "civilly dead," as the common law used that term. A monk or a person living in a cloister is civilly dead. A person who is attainted, whose blood has been "corrupted," is civilly dead. In those circumstances the person would not be able to partake of the advantages of private law, such as leaving an inheritance or inheriting from someone else. But the description of infamy given above doesn't seem to stretch that far. Am I mistaken? It seems that the "only" crime of the appellant who has cried "Craven" is that he is a perjurer and God, as is God's wont, has found him out. This may not be as bad a crime as murder, rape or arson.
One monarch who felt that this trial by duel or combat was an anachronism, a throwback to an earlier time, was Henry II (reigned 1154-1189). He, like most people in 12th, 13th and subsequent centuries, felt that this was a terrible way to establish justice. So, he developed a number of legal remedies, including the jury and the assize, that encouraged his subjects to give up this remedy. It did persist in English law, however, until eliminated by an act of Parliament in 1819, even though it had fallen into disuse for centuries (someone tried to resurrect it in 1817; hence Parliament's quick response). But even though this rather curious method of trial has passed from our tradition, it did not do so without bequeathing to us several words, words which are enriched in our use of them today by knowing this history.
Copyright © 2004-2008 William R. Long