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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/38589-8.txt b/38589-8.txt new file mode 100644 index 0000000..0cd5598 --- /dev/null +++ b/38589-8.txt @@ -0,0 +1,6622 @@ +The Project Gutenberg EBook of Legal Lore, by Various + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: Legal Lore + Curiosities of Law and Lawyers + +Author: Various + +Editor: William Andrews + +Release Date: January 16, 2012 [EBook #38589] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK LEGAL LORE *** + + + + +Produced by The Online Distributed Proofreading Team at +https://www.pgdp.net (This file was produced from images +generously made available by The Internet Archive.) + + + + + + + + + +The Lawyer in History, Literature, and Humour. + +Edited by WILLIAM ANDREWS, F.R.H.S. + +"A welcome addition to the lighter literature of the law."--_The Times._ + +"A considerable amount of historical and literary information."--_Daily +News._ + +"An entertaining work. It is rich in the lore and the humour of the law, +and ought to be as interesting to the layman as to the lawyer."--_The +Globe._ + +"A handsome volume.... The work is printed and got up in a style that does +credit to the well-known firm of publishers."--_Chester Courant._ + + + + +[Illustration: TRIAL OF A PIG AT LAUSANNE IN THE FOURTEENTH CENTURY.] + + + + + Legal Lore: Curiosities of Law and Lawyers + + + EDITED BY William Andrews. + + + LONDON: + WILLIAM ANDREWS & CO., 5, FARRINGDON AVENUE, E.C. + 1897. + + + + +Preface. + + +The favourable reception given to my volume issued under the title of "The +Lawyer in History, Literature, and Humour," has induced me to prepare, on +similar lines, the present book, dealing with curiosities of the law. I +hope those who are interested in the study of the byways of literature may +find entertainment and instruction in its pages, and that it will win a +welcome not only from the legal profession, but from the reading public. + +I am enabled by the courtesy of Messrs. Chatto & Windus, to reproduce for +my frontispiece, an illustration from a work published by them, under the +title of "Credulities Past and Present." + +WILLIAM ANDREWS. + + THE HULL PRESS, + 10th December, 1896. + + + + +Contents. + + + PAGE + + BIBLE LAW. By S. Burgess, M.A. 1 + + SANCTUARIES. By William E. A. Axon, F.R.S.L. 13 + + TRIALS IN SUPERSTITIOUS AGES. By Ernest H. Rann 23 + + ON SYMBOLS. By George Neilson 43 + + LAW UNDER THE FEUDAL SYSTEM. By Cuming Walters 58 + + THE MANOR AND MANOR LAW. By England Howlett 83 + + ANCIENT TENURES. By England Howlett 95 + + LAWS OF THE FOREST. By Edward Peacock, F.S.A. 109 + + TRIAL BY JURY IN OLD TIMES. By Thomas Frost 122 + + BARBAROUS PUNISHMENTS. By Sidney W. Clarke 132 + + TRIALS OF ANIMALS. By Thomas Frost 149 + + DEVICES OF THE SIXTEENTH CENTURY DEBTORS. By James C. + Macdonald, F.S.A., Scot. 161 + + LAWS RELATING TO THE GIPSIES. By William E. A. Axon, F.R.S.L. 165 + + COMMONWEALTH LAW AND LAWYERS. By Edward Peacock F.S.A. 179 + + COCK-FIGHTING IN SCOTLAND. 197 + + COCKIELEERIE LAW. By Robert Bird 200 + + FATAL LINKS. By Ernest H. Rann 205 + + POST-MORTEM TRIALS. By George Neilson 224 + + ISLAND LAWS. By Cuming Walters 237 + + THE LITTLE INNS OF COURT. 258 + + OBITER. By George Neilson 267 + + INDEX 277 + + + + +LEGAL LORE. + + + + +Bible Law. + +BY S. BURGESS, M.A. + + +At the very outset of any treatment of so delicate a subject as that +indicated by the title of this chapter, we are met by no small difficulty. +This consists in the danger of committing unintentional errors of +irreverence, and thus offending the prejudices of those who are more or +less pledged to their belief in the verbal inspiration of every Bible +chapter and verse. With this risk before us, we can only trust to our own +sense of a rational view of a subject so full of capabilities of +misconstruction. Those of us who can remember the outburst of righteous +indignation at the publication of the "Essays and Reviews" and of "Ecce +Homo," feel surprise at the quiet indifference with which views expressed +in them are now received. This does not at all, or necessarily, mean that +men's faith is colder, or that the spirit of reverent religious feelings +has died away. The advance of accurate scientific investigation may have +upset the faith of some, and given a subject for outbursts of intolerant +pulpit denunciations, but we must think that there are signs plainly +discernible of a quiet acceptation of modern discovery by the majority of +thoughtful and devout believers in the inspiration of Holy Scripture. +These remarks will be found not unneedful as we pursue the examination of +this particular branch of Biblical study, namely, the Law as it is found +in the Bible, and this will be seen at once when it is laid down as an +absolutely necessary condition of our investigation that this same Law can +plainly be divided into two distinct portions--that which is of Divine, +and that which is of human origin. The bare statement of this fact will +offend certain prejudices. The Divine "Fiat" stamps with as marvellous and +undoubted clearness, certain portions, as other parts are marked by the +progress of human intelligence, the needs of human society, and the force +of the human will. + +The very fact of the existence of Law entails the necessity of Penalty, +and this may be spiritual or corporal. The former depends on the +acknowledgment of the rule over us of a Superior Being. The latter is a +necessary accompaniment of all and every human life, believing or +unbelieving. So in the Bible Law we can easily distinguish between the +penalty affixed to the breaking of the first of the Ten Commandments, and +that which followed on the breaking of the sixth. On the authority of +Hebrew scholars, we are told that the use of the Hebrew Article shows that +_The Law_ refers to the expressed will of God. If this rule be invariable, +it would be of great value, and especially so in the use of the Greek +Article. + +The writers of the Psalms gave forth an intense reflection of the old Law; +always presuming, as they of course did, that it emanated from the Deity. + +Now let us be allowed to start with the assumption that the Mosaic is the +earliest form of tabulated Law. A most excellent book has just been +published, "The History of Babylonia," by the Society for Promoting +Christian Knowledge. It is a cheap little book, but full of information +upon which one feels able to rely. We find there that the Moral Law of +Babylonia represents the spirit of Bible Law so accurately that it would +be absurd to set up any theory of an independent basis. + +We must make a date somewhere, and therefore we cannot do better than +choose a date that can be fairly tested, and safely on this side of +mythical eras,--and that is about 1500 B.C. This must appear a very safe +and modest date to fall back upon. The Babylonians want us to go back +432,000 years, but to accept this assertion requires more faith than most +of us possess. + +For our present purpose there is nothing gained by comparing the Mosaic +Law with that discovered with such infinite care and learning in the +Babylonian records. The utmost that can be said is that we have startling +coincidences, and an intensely interesting subject opened out. But there +is no single grain of information, and that is what we are just now in +search of. We feel quite distrustful of documents, especially _stone_ +ones, which give the lifetime of Alorus as extending to 36,000 years. That +was before the Deluge. The Wandering Jew sinks into insignificance, and is +a mere puling infant by the side of such figures as these, because the son +of Alorus reigned for 46,800 years. However short the "year" was, the +period of life was quite lengthy. If a year was our week, the last named +patriarch was about 1,000 years old. + +This is a departure somewhat from the Law as it is in our Bibles. But it +will be an interesting study for some kind student to compare that Law +with the echoes thereof found in Asiatic literature, even far away on the +eastern shores of China. The mystery still unsolved is, "_How did it get +there?_" + +With the greatest diffidence we make the statement that the first notion +of Law was in connection with sacrifice. The time may come when this can +be refuted. But at present, leaving out of the question natural and +unwritten Law, we find no bond but this. Sacrifice comes to us as a Law +from a Superior Being. Heathen nations have recognized the efficacy of +sacrifice and offerings. + +Man without Law was an impossibility. No living thing can exist without +some Law. Thus we look back to the first records of created living things +for some Law. Science sheds a great, broad, and even scaring, light on the +Law prevailing over inanimate nature. The seas and the fields obey it. +But for us to make a record of Law as it made its beginning, is a task too +great, and it is indeed then we feel that "fools may rush in" where better +souls have had to languish in doubt. + +Let us take the Law in the Bible as we can read it, and how few care to +read it! There was a man once who had read the whole of the first five +books through _twice_. Thinking there might be something to gain from such +abnormal study, we propounded a few questions on this very subject. The +result was a senseless repetition of verses from Leviticus. And yet, to +tell the honest truth, there is very little left us to do but to _quote_. +There is a little assistance we can give, and most thankful we are to have +it in our power to do so. Let us all the time remember that the Bible Law +is the sole foundation of every Law, Human and Divine, as far as we can +discover. If it can be proved that the Babylonian record with its 40,000 +year old kings is to be relied on, then by all means let us accept it. + +We start with the sacrifice as the "_companion_" of the Law. No one can +feel hurt by this. It is no good to any of us to ask whether Abel's +sacrifice was according to revealed Law or anterior to it. It is plain +that sacrifice came to be the great medium of the Law between man and the +great prevailing Law. With this allowed, all the rest is easier to grasp. +The early Law among the first people seemed to have no force but in its +connection with some higher Power. This Power has been now deputed to +earthly sources. + +The writers of the Psalms represent to us a perfect intercourse with the +Deity. The question then arises, "On what grounds was this intercourse +conducted?" The answer seems clearly to be on the conditions of the Laws +of sacrifice. Now, by comparing the elaborate list of these contained in +Smith's "Dictionary of the Bible" with a very careful one in "Notes on the +Hebrew Psalms," by W. R. Burgess (1879), we can make out a clear and very +useful _resumé_. Leaving out the great sin offerings for the _whole +people_ and for the priests, we have the following sin offerings:-- + +1. For any sin of ignorance. Lev. iv. A most elaborate ceremonial of +sacrifice and blood sprinkling. We should like to know when the "plea of +ignorance" was done away with altogether, as we believe it has no force at +all in modern Law. + +2. For refusal to bear witness on oath. Lev. v. This is of very great +interest in the light of recent legislation as to affirmation. We have +come across many people, it is needless to add grossly ignorant, who have +entirely lost sight of the obvious emphasis on the word "False" in the 9th +Commandment, placing the whole force on the fact of "Witness." + +3. The Laws as to defilement. These, we presume, have left no trace on +modern Law. + +4. The breach of a rash oath, the keeping of which would involve sin. Lev. +v., 4. This opens a most interesting subject, but we have not space to +enter upon it. From the days of Jephthah and his oath with regard to his +daughter until this day, the question has been full of difficulties, and +is divided amongst, perhaps, equal advocates for the two opposed views of +it. + +5. Sacrilege in ignorance, fraud, _suppressio veri_, and perjury, were +punished by enforced compensation, and the addition of a fifth part of the +value concerned in the matter to the priest, or to the person wronged. + +6. Illtreatment of betrothed slaves. Lev. xix., 20. This is only curious, +but at the same time has a connection with late enactments in criminal +Law. + +7. The Law as to the powers of a father is extraordinary. When one +considers the relation now existing and defined by our Law, the revolution +is beyond all measure out of reasonable proportion. For a curse, a blow, +or even wilful disobedience, the penalty was _death_! + +8. The Law of usury is difficult, but the chief points are well known. The +main principle of the Law prevails to this day. Let us only notice the +striking fact that usury could not be exacted upon the Jews themselves. +Does this not offer a fine comment on the grievous usury so cruelly +enforced in after years by these people upon the _Gentile_ races? + +9. Debt. All debts were released at the seventh year. So there was a year +of limitation. + +10. Tithe. This Law has been so frequently and ably set forth, that it is +entirely one's own fault if it needs any comment. + +11. Poor Laws. These are conspicuous by their absence. There was a legal +right of gleanings, a second tithe to be given in charity, and wages were +to be paid day by day. (Deut. xxiv.) + +A few rather important forms of legislation must be placed here as +addenda. We notice the entirely despotic power of the husband over the +wife, and all belonging to her. Compare _our_ useful but very late +enactment as to married women's property, apart from her almost complete +irresponsibility. + +The slander against a wife's virginity is punished by a fine only, but the +fact of its truth, and therefore no longer a slander, is punished by the +death of the woman. This is a most striking proof of the lower room in +social judgment awarded to the female Israelite. We notice also that the +power of the master over his servant was absolute, but that the master +suffered a penalty if his servant or slave died under castigation! Ex. +xxi. If he was maimed, he was by this fact allowed his freedom. The rule +as to _Hebrew_ slaves is very interesting. It is too long to be quoted +here, but it can be easily mastered by a reference to Ex. xxi., Deut. xv., +Lev. xxv. + +We notice that there is no protection _legally_ allowed to _strangers_, +and so we find kindness and protection enjoined as a sacred duty. + +We believe that the old list of "Prohibited Degrees," which we saw placed +in churches in our infancy, and is still to be seen, is in all respects +enforced by our present Law. But we are not quite sure of this. We can +only remember the vague sense of mystery underlying the clause, which was +always put in the largest type:-- + + "A MAN MAY NOT MARRY HIS GRANDMOTHER." + +Another most interesting Law must be carefully noticed, and if possible, +more deeply studied. In cases of accidental homicide, there was mostly an +"avenger of blood" to be looked for. To escape this untoward follower, +cities of refuge or sanctuaries were named, and in these the poor wretch +was safe until the death of the high priest. + +As to the legal penalty of adultery, are we quite sure that, according to +results, we have greatly improved upon the old Bible Law? Under this the +punishment was _death_ of _both offenders_. Was it the fear lest the +population of the world should be so very seriously lessened that +gradually brought this Law to less than a penal one, so that at this day a +Royal "Commission" is placed on the offence in the shape of the absolute +freedom of the offenders to seek for _another opportunity_? + +Just a few words more as to those who interpreted the Law. These were the +Priests and the Levites. The "Judges," as we read of them in the book of +that name, had, with the exception of Samuel, mostly to do with the +settlement of political disputes, and the leading out of the people to +victory or defeat, as the case might be. But in later times the power of +the Sanhedrim was undoubtedly great. + +The king's power was legally limited. But so it is, and has been, in all +ages and in all dominions _in theory_! Yet we find Rehoboam expelled by +Jereboam, and the latter as despotic as the former, just as we find a firm +will in Cromwell after the despotism of Charles, in what had been then for +centuries the most "Constitutionally" governed country in the world! + + + + +Sanctuaries. + +BY WILLIAM E. A. AXON, F.R.S.L. + + +In all ages men have attributed a special sanctity to certain localities, +usually those devoted to the purposes of worship, and this sentiment has +in many lands been utilised in the interests of mercy by exempting those +within the precincts from arrest for some, or even all, crimes and +offences. In the earlier stages of development, the punishment of crime +was not regarded as a duty of the community, but as an obligation, or +privilege of the injured or of those nearest to him in blood or social +relationship. Thus the son of a murdered man had the right to murder the +murderer. The general principle of the earlier forms of justice is the +_lex talionis_, but the infliction of the penalty was mostly in the +discretion of the avenger. He might be afraid to attempt to slay a strong +or powerful homicide, and be willing to pardon the offence for a money +consideration. A criminal who took refuge in a sacred place secured at +least a breathing time in which his friends might effect a compromise +with his adversary. Greece had its famous _asyla_, but the custom of our +own country was probably influenced from Hebrew rather than classical +sources. In the narrative of the death of Joab, the hesitation of Benaiah +shows that it was unusual to slay one who had taken hold of the horns of +the altar. The six Cities of Refuge were appointed as places of safety for +involuntary homicides, where they were protected from the avenger of +blood. Amongst our Anglo-Saxon ancestors, the Church exerted a moderating +influence. Every consecrated church had the right to shelter the fugitive +from justice for seven days, and when the building was needed, he might be +placed in a house provided for that purpose by the church, which was not +to have more doors than the church itself. If the criminal was dragged +forth from his refuge, the violators of the sanctuary were fined in +varying degrees according to the rank of the ecclesiastical edifice. In +addition to the inherent right of each church, special privileges were +conferred on certain places by the exercise of the royal prerogative. In +1378, it was decided that the property of fraudulent debtors who had taken +sanctuary should be liable for the satisfaction of the claims of their +creditors. In 1486, Pope Innocent VIII. issued a bull relating to English +sanctuaries, by which it was provided that when the refugee left his +asylum, he lost his right of protection, even though he subsequently +returned to the sanctuary. At the same time, the king was empowered to +appoint keepers to look after those who having been accused of treason, +had taken sanctuary. + +Great changes were made in the law during the reign of Henry VIII. +Traitors were wholly exempted from the privilege; those abjuring the realm +were not actually banished, but were to remain throughout life in the +sanctuary, and if they left it and committed any offence, they might then +be brought to trial. All inmates were to wear a badge twenty inches in +length and breadth, were forbidden the use of weapons, and were not to +leave their lodgings between sunrise and sunset. In 1538, the right of +sanctuary was further restricted, and Wells, Manchester, Northampton, +York, Derby, and Launceston were declared sanctuaries. Manchester found +this privilege to be of such doubtful value that two years later it was +transferred to Chester, and afterwards to Stafford. In the reign of James +I., the right of sanctuary was abolished almost everywhere. The Palatine +Counties had their special sanctuaries. In Cheshire, Hoole Heath, +Overmarsh, and Rudheath were such places of refuge. The abbey of Vale +Royal had also a grant. But generally the County Palatine of Chester was a +place of resort for those who had come into conflict with the law in other +parts of the kingdom, and it was not until the reign of Charles II. that +the king's writ ran in the palatinates and other privileged places. Many +privileged places in London, Westminster, and Southwark were brought +within the regular jurisdiction in the reign of William III. and George +II. + +We have an instructive picture of the working of the sanctuary system in +the case of Manchester. The Act of 32 Hen. VIII., c. 8, abolished the +right of refuge in all places except, and the exception is a considerable +one--churches, hospitals, and churchyards. Perhaps a more important +exception was that sanctuary was to be denied to those guilty of murder, +rape, highway robbery, burglary, house-burning, or sacrilege. Whilst +abolishing many sanctuaries, certain additional places were named as +cities of refuge for minor offenders. One of these was Manchester. A year +later the town petitioned to be relieved from this distinction. The +inhabitants set forth that Manchester had a great trade in the bleaching +of linen yarn, and in the making of linen and woollen cloths and dressing +of cotton, and that the influx of dissolute persons to the sanctuary had +caused serious damage to the prospects of the town, which, having no +mayor, sheriff, or bailiff, and no jail, was badly circumstanced for +dealing with these lawless invaders. The request was granted, and the +sanctuary removed from Manchester to Chester. But the city of the Deva +found it desirable to obtain relief, and a further removal was made to +Stafford. + +The fridstool at Hexham still remains, although nearly everything else of +the Saxon foundation has perished. This "chair of peace" was the central +point of the sanctuary, which extended a mile around. A Durham example of +the working of the law may be cited. + + "Memorandum: That on the 13th day of the month of May, A.D. 1464, one + Colson, of Wolsyngham, Durham, who had been detected in a theft, and + therefore put and detained in gaol, at length contrived to escape, + and fled to the Cathedral Church of Durham, in order to avail himself + of its immunities, and whilst he was there standing near the bier of + St. Cuthbert, prayed, that a Coroner might be assigned to him. Upon + John Raket, Coroner of the Ward of Chester in Strata (sic) coming to + him, the same Colson confessed the felony, making upon the spot the + corporeal oath that he abjured the realm of England, and would + withdraw from it as soon as he could conveniently, and would never + return thither, and which oath he took at the bier of St. Cuthbert in + the presence of Master George Cornworth, Sacristan of the Cathedral + Church of Durham; Ralph Bows, Knight and Sheriff of Durham; John Raket + (the Coroner); Robert Thrylkett, Deputy Sheriff; Hugh Holand, and + Nicholas Dixson, and of many others; by reason of which renunciation + and oath all the dress of the said Colson belonged to the said + Sacristan and his office; wherefore the said Colston was enjoined to + take off to his shirt all his garments, and deliver them to the + aforesaid Sacristan, and he did so, placing them all into his + possession, the Sacristan gave up and delivered to him again, + gratuitously, all his dress that he had up to this occasion been + clothed in; and after that Colstone withdrew from the Church, and was + handed over to the nearest constable by the aforesaid sheriff, and so + on from constables to constables, holding a white cross made of wood + as a fugitive, and so he was to be conducted to the nearest seaport to + take vessel as one never to return. This was done on the day, month, + and year aforesaid."[1] + +The system was one that led to gross abuse. It was held that the right did +not extend to others than those whose offences entailed forfeiture of life +and limb, but in practice knavish debtors, fraudulent executors, etc., +availed themselves of the protection. There was plenty of scope for +dispute as to jurisdiction. In 1427, the Abbot of Beaulieu was required to +give proof of his right to shelter William Wawe, who is described as a +heretic, traitor, common highwayman and public robber. "Wille Wawe was +hanged," is the sum of the matter as recorded by Stowe. Between 1478 and +1539, at Durham, 283 persons took refuge who were, as principals or +accessories, accused of homicide. There were sixteen debtors, four +horse-stealers, nine cattle-stealers, and four house-breakers. One had +been charged with rape, and seven with theft. One had been backward in his +accounts, one had harboured a thief, and one had failed to prosecute. Sir +John Holland, in revenge for the death of his esquire, killed the son and +heir of Hugh, second Earl of Stafford, and then took sanctuary at +Beverley. The murderer, in this case, was the half-brother of Richard II., +but it was with great difficulty that the king was induced to grant a +pardon. + +The church of St. John of Beverley had a charter from Athelstan, and near +the altar was the Fridstool, or chair of peace, "to which what criminal +soever flies hath full protection." The privilege extended for a radius of +about a mile round the minster, and the limits were marked by stone +crosses. Infraction of the right of sanctuary was punishable by severe +penalties, and to take a refugee from the Fridstool was to incur both +secular and ecclesiastical penalties, the latter extending to +excommunication.[2] + +The widow of Edward IV. fled with her younger children for safety to the +sanctuary of Westminster after her eldest son had fallen into the keeping +of the Duke of Gloucester. Sir Thomas More reports the discussion in the +Council of the Protector, and the arguments used by Cardinal Bourchier, +which induced the queen to give up the Duke of York. The boy king, who was +never crowned, and his brother were murdered in the Tower. It is +noteworthy that this unfortunate monarch was born in the sanctuary of +Westminster when his father was in exile. Skelton, the poet, died in this +same sanctuary. + +The privileges of the sanctuary were not always respected. When Geoffrey, +Archbishop of York, took refuge in St. Martin's Priory, Dover, he was +dragged from the altar in his pontifical robes by order of the bishop of +Ely, who was then Chancellor of the Kingdom. But this arbitrary proceeding +was not the least of the causes of the downfall of William of Longchamp. +When William Longbeard, who had been condemned to death, took sanctuary at +St. Mary-le-Bow, Hubert de Burgh ordered the church tower to be set on +fire to compel him to come forth. Longbeard abandoned his place of refuge, +and was dragged to Tyburn, and there hanged. But although de Burgh was +Archbishop of Canterbury and Justiciary of the Kingdom, and the Church was +his own peculiar, his violation of sanctuary led to the loss of his great +secular dignity. Later, when he had himself to seek refuge, a great debate +arose as to his having been forcibly taken from a sanctuary, and he was +restored to its protection, and escaped to Wales. + +Whilst the same rights of sanctuary existed in Ireland and in Wales, they +were apparently not made use of to any great extent. In Scotland, the +churches of Wedale, near Galashiels, and of Lesmahagow, near Lanark, were +the most famous of the religious sanctuaries. The latter had also a royal +charter from David I. These sanctuaries ended with the Reformation. The +abbey of Holyrood and its precincts, which include Arthur's Seat and the +Queen's Park, gave protection to debtors until, by the abolition of +imprisonment for debt, its privileges ceased to have any meaning. One of +those who thus sought refuge at Holyrood during a part of his career was +Thomas de Quincey. + +Sanctuaries probably served a useful purpose in ages when the law was +harsh and indiscriminate in its punishment of offenders. The limited +protection afforded by the Church sanctuaries at least gave an opportunity +for the first heat of revengeful feeling to subside, and the greater +sanctuaries protected not merely vulgar offenders, but those whom the +stormy tide of politics had placed at the mercy of their enemies. As the +law became stronger, and the course of justice more certain, the need for +these refuges ended, and those that continued were public nuisances, and +mere centres of crime and anarchy, such as Scott has described for us in +his picture of Alsatia. We may be thankful that sanctuaries are now merely +objects of antiquarian interest and speculation. + + + + +Trials in Superstitious Ages. + +BY ERNEST H. RANN. + + +In superstitious ages, when belief in the power of the law to adjust all +quarrels, to hold the balance equally between man and man, and to accord +to each one his rights, was less prevalent than it is at the present day, +disputants naturally resorted to other tribunals for the settlement of +their claims. A perfect system of law was impossible; what law existed was +arbitrarily administered, often for the benefit of the most powerful +litigant, and the claimant with only justice on his side often had the +mortification of seeing a verdict given against him. During the +development of a system of law-giving, when the accumulated experience of +humanity had not sufficed to produce perfection, man in his darkness, his +ignorance, and superstition, turned to the supernatural, and devised +certain ceremonies by which the judgment of God might be evoked to +demonstrate the guilt or innocence of the accused. + +The antiquity of the ordeal, as it was called, cannot be measured. Such a +form of trial is found to have existed in the earliest ages, and even now +traces of it linger among savage tribes of the earth. In Africa especially +the ordeal is well known. During his travels among the negro tribes north +of the Zambesi, Dr. Livingstone encountered the curious practice of the +"mauvi," which consisted of making all the women of a tribe drink an +infusion of "goho," for the purpose of ascertaining which of them had +bewitched a particular man. The accused women were drawn up in a row +before the hut of the king, and the draught administered to them. Those +who were unable to retain the horrible decoction, and vomited, were +considered innocent of the charge: those who were purged were adjudged +guilty, and put to death by burning. + +The Calabar bean is also used by the natives of Africa in the form of an +emulsion as an ordeal for persons accused of witchcraft, proof of +innocence consisting of ability to throw off the poison by vomiting. Among +the Barotse tribes the process is conducted by deputy, the testing liquid +being poured down the throat of a dog or cat, and the accused person being +treated according to the effect produced on the animal. Among the Dyak +tribes lumps of salt are thrown into a bowl of water by the accuser and +accused, and judgment is given against the owner whose lump disappears +first. Another method adopted by the Dyaks is for each of the two parties +to choose a mollusc, and to squeeze over it a few drops of lime-juice; the +owner of the mollusc which moves first under the acid stimulant losing the +case. Ratzel mentions that among the Malay tribes ordeals by fire, +ducking, pulling a ring out of boiling water, or licking red-hot iron, are +still frequent. Where the ordeal fails to produce the desired result, +wager of battel, in reality another form of ordeal, is resorted to. Among +the Tagals it is usual to light a consecrated candle, and to consider the +person guilty of the crime under consideration to whom the candle flame is +blown during the performance of the ceremony. The Igorrotes have a more +painful method of fixing guilt. The accuser and the accused are placed +together; the backs of their heads are scratched with a sharply-pointed +bamboo stick, and the man who loses most blood also loses his case. + +In Hawaii ordeals are administered by the priests, the suspected person +being compelled to hold his hands over consecrated water, and adjudged +guilty if the liquid trembles in the vessel while the priest looks at him. +The Siamese have a form of ordeal which consists of making the two parties +to a suit swallow consecrated purgative pills, the man who retains them +for the greater length of time winning the case. + +Even among the comparatively enlightened races of the peninsula of India, +ordeals of the most elaborate and curious character are practised at the +present time. Warren Hastings mentions that in his day no fewer than nine +forms were in use among the Hindoos. The ordeal of the balance was +commonly employed, and is still in force in certain districts. The beam is +adjusted, and both scales made perfectly even. After the accused has been +bathed in sacred water, and the deities worshipped, he is placed in the +scale-pan and carefully weighed. When he is taken out the Pandits +pronounce an incantation, and place round his head a piece of paper +setting forth the charge against him. Six minutes later he again enters +the scale, and the balance is called upon to show his fault or innocence. +If he weigh more than before, he is held guilty; if less, innocent; if +exactly the same, he must be weighed a third time, when, according to the +_Mitácsherá_, a difference in his weight will be observable. Should the +balance break down, the mishap would be considered as proof of the man's +guilt. + +The ordeal of the balance is not altogether unknown in English history, +for an incident is recorded in which Susannah Haynokes, of Aylesbury, was +accused of bewitching her neighbour's spinning-wheel, and preventing it +from working properly. Susannah loudly protested her innocence, and +demanded an ordeal to prove it. She was taken to the church, and weighed +in a semi-nude condition against a copy of the Bible, and being able to +outweigh the Scriptures, was considered to be innocent of the offence +charged against her. Possibly it never occurred to the owner of the +spinning-wheel that lack of oil was the cause of its refusal to go round. + +Among other ordeals in use by the Hindoos is that of iron, the accused +being required to lick a red-hot bar of the metal. If his tongue be burnt, +he is considered guilty, if not, he is reckoned innocent, but it cannot be +supposed that among tribes addicted to this practice the injury to the +tongue is considered sufficient punishment for the offence with which the +suspect is charged. The poison ordeal, employed also, it may be noted, by +the Hovas of Madagascar, is commonly practised. A small quantity of +_vishanága_, a poisonous root, is mixed with clarified butter, which the +accused must eat from the hand of a Brahman. If the poison produce no +visible effect, he is absolved; otherwise, condemned. In other cases the +hooded snake called _nága_ is placed in a deep earthen pot, from which the +accused has to take a ring, seal, or coin without being bitten, when he is +considered innocent. In trial by the Cósha the accused is made to drink +three draughts of water in which images of the Sun, of Dévě, and other +deities have been washed. If, within fourteen days, he is afflicted with +any form of sickness, he is considered guilty. + +For the fire ordeal an excavation is made in the ground, and filled with +burning pippal wood. Into this a person must walk bare-footed without hurt +in order to prove his innocence. Hot oil ordeals are also in force, when +the accused has to thrust his hand into the liquid without being burned; +and chewing a grain of consecrated rice, which, if it comes from the man's +mouth dry or stained with blood, is considered proof of his guilt. At +other times a silver image of the Genius of Justice, called _Dharma_, is +thrown with an image of iron or clay, called _Adharma_, into an earthen +jar; and the accused is acquitted if he bring out the silver image, but +condemned if he draw forth the iron. + +The history of the middle ages furnishes numerous examples of ordeals +employed in the settlement of disputes, which in the absence of a strong +and impartial system of law-giving, found great favour with the people of +all ranks. They were peculiarly distinguished by the appellation of +_Judicium Dei_, or judgments of God, and sometimes called _vulgaris +purgatio_. The law of the Church sanctioned the ordeal throughout Europe +for a considerable period, and faculties were freely given by the clergy +for the performance of these strange ceremonials. Indeed, the whole +business, as a judgment of God, was frequently conducted by the servants +of the Church, always in consecrated ground, and the sacred edifice itself +was occasionally requisitioned in order to add greater solemnity to the +proceedings. The ordeal of fire, practised, curiously enough, by the +Greeks in the time of Sophocles, was allowed only to persons of high rank. +The accused was required to carry a piece of red-hot iron for some +distance in his hand, or to walk nine feet, bare-footed and blind-fold, +over red-hot ploughshares. The hands or feet were then immediately bound +up, and inspected three days afterwards. If, on examination, no injury was +visible, the accused was considered innocent; if traces of the burning +remained, he was reckoned guilty, and received punishment commensurate +with his offence, without any discount for the harm he had already +suffered. + +The most notable historic instance of this form of ordeal is that of Queen +Emma, mother of Edward the Confessor. She was accused of a criminal +intrigue with Alwyn, Bishop of Winchester, and condemned to the ordeal of +fire, which, on this particular occasion, took the form of nine red-hot +ploughshares, laid lengthwise at irregular intervals, over which she was +required to walk with bandaged eyes. She passed successfully through the +severe trial, and at the conclusion innocently asked when the ordeal was +about to begin. The Queen's innocence was, to the popular mind, +established more substantially than would have been possible in any +existing court of law. She was not the only gainer by the restoration of +her reputation, for in consideration of the success which had attended +her, she settled twenty-one manors on the Bishopric and Church of +Winchester. + +In the Eastern Empire the fire ordeal was largely used by the Emperor +Theodore Lascoris for the discovery of the origin of the sickness with +which he was afflicted. His majesty attributed the malady to magic, and +all suspected persons were required to handle red-hot iron in order to +establish their guilt or innocence, "thus joining," as an ancient scribe +exclaims, "to the most dubious crime in the world the most dubious proof +of innocence." + +Fire, as we have said, was employed for persons of high rank: those of +baser degree, especially bondsmen and rustics, were tried by the ordeal of +boiling water. "I will go through fire and water for my friend" was a +common expression in the middle ages, and, though having lost its original +significance, the saying has persisted to the present time as a +declaration of self-sacrifice. The accused person was required to take a +stone from a pan of boiling water, to insert the hand and wrist into the +liquid, and in case of the triple ordeal, to plunge the arm in up to the +elbow. When cold water was employed, and in cases of witchcraft this was +generally resorted to, the suspect was flung into a river or pond. If he +floated without appearance of swimming, he was pronounced innocent; if he +sank, he was condemned as guilty--rather a superfluous proceeding, +considering that the man was in all probability already drowned. + +It would be going too far to assert that in all cases these ordeals were +carried out with the strictest impartiality and consideration for the ends +of justice. Means were not unknown to circumvent the peculiar forms of the +trial, and precautions were often taken by the clergy, as might have been +done in the case of Queen Emma, to protect those whom they desired to +clear of suspicion. It is a well-known fact that white-hot iron may be +licked with impunity, and the Mevleheh dervishes are proficient in the +trick of holding red-hot iron between their teeth. Sometimes cold iron, +painted red, was employed, and at others the fire reduced in temperature +at the critical moment, the suspect receiving only such injury as would +heal in the three days allowed before his hand was examined. Artificial +preparations were frequently employed, while the suspect had at times the +option of going alone into the church, and in all cases of keeping the +crowd of spectators at a distance, which made minute inspection of the +proceedings impossible. + +Another form of ordeal was the _judicium crucis_, or trial of the Cross, +employed largely in criminal cases. When an accused person had declared +his innocence on oath, and appealed to the judgment of the Cross, two +sticks were prepared precisely like one another. The figure of the Cross +was cut upon one of these sticks, and the other left blank. Each of them +was wrapped in fine white wool, and laid upon the altar or the relics of +the saints, after which a prayer was uttered that God might discover by +unmistakable signs whether the prisoner was innocent or guilty. The priest +then approached the altar, took up one of the sticks, and uncovered it. If +it happened to be the stick marked with the cross, the prisoner was +pronounced innocent; if it were the other, he was condemned as guilty. A +different form of this ordeal was adopted when the judgment of the Cross +was invoked in civil cases. The judges and all parties to the suit +assembled in the church. Representatives, generally the youngest and +strongest priests, were then chosen, and required to stand one on each +side of a crucifix. At a given signal they stretched out their arms at +full length, so as to form a cross with their body, and in this painful +posture they continued to stand during divine service. The party whose +representative dropped his arms first, or shifted his position, lost his +cause. History records a dispute over a monastery, between the Bishop of +Paris and the Abbot of St. Denis, which was settled in this manner. A +crowd assembled, and arranged bets on the result, but those who supported +the Bishop's man were sadly disappointed, for he dropped his arms at an +early stage, and lost the cause of his employer. The ordeal of the Cross +was abolished by Louis de Debonnaire in 816, on the ground that it was +irreverent in character. + +Ecclesiasticism also played a prominent part in the ordeal of the +corsnedd, to which persons accused of robbery had to submit. The corsnedd +was a piece of bread made of unleavened barley, to which cheese made of +ewe's milk in the month of May was added. Over the whole, one ounce in +weight, a form of exorcism was uttered, desiring of the Almighty that the +corsnedd might cause convulsions and paleness, and find no passage, if the +man were really guilty, but might turn to health and nourishment if he +were innocent. The practice is strongly remindful of the trial of jealousy +in use among the Israelites, by which an unfaithful woman was compelled to +drink holy water containing dust of the floor of the tabernacle, the +belief being that she would be stricken with illness if she were guilty. +The corsnedd was given to the suspected person, who at the same time read +the sacrament. Godwin, Earl of Kent, was, in the reign of Edward the +Confessor, accused of murder, and forced to the ordeal of the corsnedd, +when, according to ancient chroniclers, the consecrated food stuck in his +throat, and caused his death. Both the expressions, "I will take the +sacrament upon it," and "May this morsel be my last," are supposed to have +been derived from this curious form of law-giving. A somewhat similar +custom is in vogue in Russia at the present day. Balls of bread are made +and dropped into consecrated water, the priest meanwhile reciting the +formula:--"Ivan Ivanoff, if you are guilty, as this ball falls to the +bottom, so your soul will fall into hell." As a rule the culprit confesses +immediately. In Ceylon, also, a similar form of ordeal is by no means +unusual. A man suspected of theft is required to bring the person he +holds in greatest affection before the judge, and placing a heavy stone on +the head of his substitute, say, "May this stone crush thee to death if I +am guilty of the offence." The Tartar sets a wild bear and a hatchet +before the tribunal, saying as he does so, "May the bear devour me, and +the hatchet chop off my head, if I am guilty of the crime laid to my +charge." + +Another form of ordeal which was cherished and practised with assiduity +was that of the bier, founded on the belief that the body of a murdered +man would show signs, by bleeding or movement, when his assassin +approached. The accused had to place his hand on the naked breast of the +corpse, and declare his innocence, though the slightest change in the body +was considered proof of his guiltiness. This method of finding out +murderers had its origin, it is believed, in Denmark, where it was in the +first instance adopted by King Christian II. for the discovery of the +murderer of one of his courtly followers. The belief has survived to a +certain extent to the present day, for even English peasants still expect +all persons present at a funeral to touch the body in proof of their +bearing no ill-will towards the dead man. + +Not so frequently employed, but still occasionally met with in ancient +history, was the ordeal of compurgation, where the innocence of the +accused was sworn to by his friends, and judgment went against the party +whose kindred refused to come forward, or who failed to provide the +necessary number of compurgators. It was a conflict of numerical strength, +and the higher number carried the day. + +Another custom, still surviving, was to tie a key in a Bible opened at +Psalm L, verse 18, "When thou sawest a thief, then thou consentedst with +him," and balance the whole, the belief being that the book would turn in +the hands of a guilty person. + +Challenging the accuser to mortal combat was a proceeding which found much +favour with the warlike spirit of the middle ages. Of course it was +considered that Providence would defend the right, even if a miracle were +needful, but nevertheless each party placed considerable reliance on his +own strength of arm and fighting skill. These judicial combats were in +ancient times practised among the Jews, and were also common in Germany in +remote ages, though they do not find mention in Anglo-Saxon laws, and +were apparently not in use in England until after the Norman Conquest. In +Germany a bier was placed in the midst of the lists, accuser and accused +stood respectively at the head and foot, and remained for some minutes in +profound silence before they commenced fighting. Civil, criminal, and +military cases were, in the absence of sufficient direct evidence, decided +by means of the judicial combat or wager of battel. The offended party had +the right to challenge his accuser to settle the dispute by force of arms, +and the forms and ceremonies connected with the trial are well illustrated +in the opening scenes of "King Richard II." The combat took place in the +presence of the court itself, Heaven being expected to give the victory to +the innocent or injured party. It was commonly resorted to in charges of +treason, as in the above-mentioned dispute between Henry Bolingbroke and +Thomas Mowbray, when the ceremonies were of an imposing character. As in +the majority of ordeals, deputies could be chosen to perform the requisite +duties, but the principals were in all cases answerable for the +consequences. No commoner was allowed to challenge a peer of the realm, +nor could the citizens of London, for some obscure reason, indulge in +these popular forms of legal administration. Each of the combatants +professed his willingness to make good his claims, body for body-- + + "For what I speak + My body shall make good upon this earth, + Or my divine soul answer it in heaven." + +Neither sorcery nor witchcraft had to be employed, and the battel was to +continue until the shades of evening had fallen, and the stars appeared. +If the accused were killed, his blood was attainted, but if he were only +vanquished, he was immediately condemned to an ignominious death by +hanging, providing he accepted his fate without demur. The defeated party, +however, might crave his life, in which case he was allowed to live as a +recreant, on condition that he retracted unreservedly the false statements +that he had sworn. + +At the Durham Assizes, on August 6, 1638, a wager of battel was offered +and accepted, for deciding the rights to land at Thickley, between Ralph +Claxton, demandant, and Richard Lilburne, tenant. According to an old +chronicle, "the defendant appeared at 10 o'clock in the forenoon, by his +attorney, and brought in his champion, George Cheney, in full array, with +his stave and sandbag, who threw down his gauntlet on the floor of the +court, with five small pieces of coin in it. The tenant then introduced +his champion, William Peverell, armed in the same manner, who also threw +down his gage." But the champions, instead of being allowed to fight, were +ordered to appear at the Court of Pleas in the following month. Legal +arguments followed, and the trial by battel was eventually postponed +indefinitely. + +In criminal trials no deputies were allowed, and the parties were +compelled to settle their quarrel in person, unless one of them was a +woman, an infant, or a man over the age of sixty, or was afflicted with +lameness or blindness. In the case of any of these disqualifications, +trial by jury could be claimed and insisted upon. One of the most +remarkable wagers of battel occurred in 1817. A young woman named Mary +Ashford, living at Erdington, near Birmingham, was supposed to have been +murdered early one morning when returning from a dance. Suspicion fell on +Abraham Thornton, a partner of the previous night, who was tried for the +crime and acquitted. Evidence for another trial was collected, and +Thornton was _appealed_ by William Ashford, the direct heir male of the +murdered woman. But when the proceedings commenced, Thornton's counsel +took refuge under a very old Act, by which no man could be tried on a +second charge of murder, on which he had been acquitted, except by wager +of battel before the king, between the heir-at-law of the person murdered +and the accused. The appellant, Mary Ashford's brother, declined the +combat on the ground of physical inferiority, and Thornton was discharged. +Immediately afterwards the antiquated law was removed from the Statute +Book. + +This marked the end of trials by ordeal as recognised by law. The process +of extermination had long been in progress, but popular opinion was +against reform, and certain of these curious customs survived. Although +the clergy had at first taken part in these ceremonials, and presided over +them in church, they came in time to discountenance them. The canon law +declared against ordeals as being the work of the Devil, and a decree to +this effect was issued in the eighteenth canon of the fourth Lateran +Council in November, 1215. Upon this authority it was thought proper, +says Blackstone (as had been done in Denmark a century ago), "to disuse +and abolish these trials entirely in our courts of justice by an Act of +Parliament, Henry III., according to Sir Edward Coke, or rather by an +order of the King in Council." The actual date of the abolition of ordeals +by fire and water was 1261. On the Continent these forms of trial had been +abolished by civil and ecclesiastical law much earlier, although in 1498 +an attempt was made to test the doctrine of Savonarola by means of a +challenge from one of his disciples to a Franciscan friar to walk through +a pile of burning wood. Old customs die hard, and the incident is a +curious and interesting instance of the persistence of a popular form of +trial even among the members of a party by which it had been condemned. + + + + +On Symbols. + +BY GEORGE NEILSON. + + +The wayward fancies of mankind are well illustrated in the diversity of +symbolic observances, some never losing their meaning, some absolutely +unintelligible in their historic form, and some as much characterised by a +befitting dignity, as others are by the want of it. All once were +self-explanatory and possessed a measure of propriety proportioned to the +state of the people amidst whom they originated. But tradition is long, +centuries elapse, each modifying a ceremony, and when the procedure +emerges within the knowledge of record, it has often so lost touch with +its surroundings, that it is hopeless to speculate how it arose. + +Symbols are drawn from and applied to every field of human activity. Of +course in a general sense man expresses himself only so, and a regular +alphabet is but a comparatively trifling advance on the language of signs. +What we call civilization, is at bottom little more than a clear +recognition of certain symbols of government. The Queen's crown, the +Judge's ermine, the Mayor's mace, what are they else? The sceptre is only +a glorified stick, of which the policeman's baton is a humbler shape. Each +embodies the great thought that behind it stands a nation's determination +to be ruled by law. + +In the history of law, symbol and the traces of symbol meet us at every +turn. The middle ages teemed with them. Roman law had bequeathed not a +few. Perhaps the most wondrous of them all is one that has long ceased to +have any legal connection, although its mark is all-powerful over +civilisation. How daring was the imagination which prompted the choice, +for the heraldic badge of Christianity, of the dread emblem of capital +punishment by crucifixion! In the pure domain of the law of the early and +middle ages, a perfect wilderness of symbols presents itself to eyes which +strive to explore the origins of institutions. + +Law is ever beset by a tendency towards formalism, and in early times a +severe insistence upon ceremony, no doubt, gave prominence and +prescriptive sanction to symbolic acts. Law and custom after all only mean +that the way things were done yesterday is the safest way of doing them +to-day. The acceptance of a common form implies a very large public +consent, which is equally necessary to its abrogation, once it is +accepted. No small part of its value lies in its certainty, "certainty +which," Coke well says, "is the mother of quiet and repose." + +Hence the fixity and longevity of many emblematic methods of performing +acts affecting status or property rights. The constitution or discharge of +slavery, or the transfer of a slave from one master to another, had a +variety of set forms. A freeman might deliver himself to serfage by +putting a leathern thong upon his neck. When a church was the donee, the +ceremony might take place at the altar, and the man present himself there +with cords round his throat. "Thus he offered himself," says an old +record, "to the Almighty Lord." A coin or two on the head was also a +customary part of the process. In the manumission or liberation of the +slave, these coins struck off the head served the purpose of declaring him +free, as did the companion symbol of open doors, or the placing him at +four cross roads, and bidding him go whither he would. Another common +symbol of enfranchisement was the delivery of an arrow, thought to denote +the right confined to freemen of bearing arms. + +Even a short account of legal symbols would make a very large treatise. +Single instances such as the ring, the staff, the glove, and the horn +would each furnish material for an elaborate monograph. The theme would +call for a discussion of the great war of investitures, and would touch +very many points of ecclesiastical, civil, and criminal law and history. +The scope of the present unambitious article is only directed to a few +illustrations in relation to the transfer of land, the act of divesting +the old proprietor and clothing the new with his rights. Although such +symbols usually had a connexion with the subject conveyed, there are many +types in which that connexion is not readily traceable. Why for example +amongst the Saxons should a resignation of all interest in an estate have +been made by a gesture with curved fingers? One can understand why a sod +should be so often a token, but why does the glove play so large a part in +Merovingian and Carolingian conveyancing? Was it, indeed, as German +scholars speculate, because the donor metaphorically took it off and the +donee put it on, making his the covered hand, the _vestita manus_, that +would defend the land conveyed? How came an eleventh century magnate to +attest his renunciation of justiciary rights to a monastery "by cutting +off the top of the silk band by which his fur robes were fastened to his +breast, and with that segment re-investing three monks therein?" In this +case a portion of that silken band was carefully sewn up, as an adminicle +of evidence, in the writ recording the transaction. How again came it that +a claim of feudal service might be departed from by the delivery and +placing of a wand (_virgula_) upon the altar? All these are much more +personal symbols than real. They are mainly guarantees of the grantor's +good faith. They do not seem to be primarily emblems of possession. The +contrast between these two classes will be best appreciated by considering +types of the latter. + +When a purchaser proceeded to set up fresh boundary marks, or to take a +spade and dig, or when he received delivery of a sod with grass or +shrubbery upon it, or lifted from the ground the charter granted by the +seller with amongst other things a sod laid thereon, the act of seisin, +the formal occupation is visibly completed. Of this class of symbol, the +sod (_cespes_) is probably the best and most typical for a few words of +illustration. We read of litigants laying judicial claim to land in the +mall or public court by putting their spears into a sod, representative of +the subject in dispute. We hear of the sods being cut in the shape of +bricks, and of their being preserved as memorials, with the twigs growing +in and incorporated with them. We hear of sods offered on the altar when +the grant of land was being made to a church. We hear of transfer from one +vassal to another being accomplished by the grantor delivering the sod to +the over-lord, and the latter passing it on to the grantee. + +Of all the symbols employed in connection with feoffments, however, the +rod (_festuca_) had the widest vogue on the continent. Not that it was +restricted to transactions in land; it was a more or less lineal +descendant of the Roman stipulation, a contract visibly expressed by the +parties breaking a straw between them. Under Charlemagne a renunciation by +certain priests was made by them "holding straws in their hands and +casting them from them before God and his angels." Later this appears as +a recognised method of renunciation, but with a rod substituted for the +straw. In some cases the fact of renunciation is emphasised by the rod +being not only thrown to the ground by the resigner, but trodden under +foot when there. The rôle of the _festuca_ was peculiarly important +amongst the Frankish peoples.[3] Galbert of Bruges, a Flemish twelfth +century historian, states that the counts of Flanders gave investitures to +their vassals, after receiving their fealty and homage, by a wand +(_virgula_) held in hand, and he has a dramatic passage describing how the +people of Bruges, in token of their renunciation of their feudal bond to +Hacket the castellan, "picking up bits of stick exfestucated their homage +and fealty," _i.e._ cast the rods from them, and so doing severed all +connexion with their former chief. + +In England and in Scotland, this rod symbol (_fustis et baculus_) also +played a large part. Bracton referred it specially to land without houses. +Tenure by the verge, a species of copyhold, had its name, we learn from +Littleton, from _un petite verge_, delivered by the old tenant to the +steward or bailiff of the manor, who re-delivered it to the new holder. +Jordan Fantosme tells us that when Brien, messenger of Ranulf Glanvil, in +1174, announced in Westminster the capture of the Scottish King at +Alnwick, Henry II. rewarded him for his good news by handing him a stick +(_bastuncel_), which vested him in ten librates of land. In Scotland the +feudal resignation by a vassal to his overlord for the re-investure of a +fresh owner was effected by "staff and baton" (_fustis et baculus_), and +references to those symbols occurred in every day conveyancing until far +into the present century. Indeed this picturesque ritual was, strictly +speaking, not abrogated, although made unnecessary, by the Act 8 and 9 +Victoria ch. 35. + +The commonest conveyancing symbol for land in England was the formal +delivery of turf or twig of the ground conveyed, made by a representative +of the grantor, to a representative of the grantee. The most familiar in +Scotland was the handing over of "earth and stone." This latter was the +normal form of seisin, and its history goes far back, not only in +Scotland, but on the continent as well. A curious Saxon legend attests +this. Widukind narrates that some Saxons, having landed from their ships +in Thuringia, one of them, wearing a golden torque and bracelets, met a +Thuringian, who asked if he would sell his ornaments. The sly Saxon +entered into an odd transaction; the Thuringian gave him in exchange for +his gold, a lapful of soil. The Thuringians rejoiced exceedingly over the +smart bargain their countryman had made, but changed their tune when soon +afterwards the Saxons claimed the land as theirs, purchased with their own +gold, and by force of arms made good the demand. + +Our chronicles have a good many stories about symbols. In the Norman +_Brevis Relatio_, a sketch of the origin of William the Conqueror, is told +of his grandfather, Duke Richard the Good, that once when staying at a +monastery, after prayer in the morning he laid a spindle on the altar. +Upon being asked what it meant, he named the manor which he had by so +homely a symbol bestowed for the good of his soul. When the infant William +came into the world, it was said,--and afterwards noted as prophetic--that +when they laid him down upon some straw, the little hands each clutched a +handful. Acquisitive tendencies were foreshadowed! The _Roman de Rou_ +tells that in 1066, when William landed in England, he stumbled and fell, +an omen which for the moment disconcerted his followers, but rising with a +shout, he swore by the splendour of God that with his two hands he had +taken possession of the land. Prompt to catch the occasion, one of his men +ran forward to a cottage, tore a handful of thatch from the roof, and +passed it to his chief, with the cry, "Receive this +seisin,"--quasi-ceremonial words which with William's pious, "God be with +me," the curious may compare with the formalities of English livery in +deed, as described (sec. 59), in Coke upon Littleton. + +The normal symbol of seisin for a house in England, was (before the Act 7 +and 8 Victoria ch., 76, superseded these archaic ceremonies), was the ring +or hasp of the door, known in Scotland for houses in burghs as "hasp and +staple." In the latter country also, there were a good many special types +of symbol characteristically appropriate to seisin in special kinds of +property. Thus for mills "clap and hopper," for fishings "net and coble," +for teinds (Anglice tithes) a sheaf of corn, for the patronage or +advowson of a church a psalm-book and keys, attained the figurative +purpose requisite. There were many others less familiar amongst them, one, +a hat, worthy of a few words all to itself. Our own generation may not +regard this as a particularly dignified symbol, but there is a cloud of +witnesses to shew its very various applicability. The priest's cap or +biretta was sometimes employed to instal him in a chaplainry or benefice. +And apart from the place of the hat in the regulations of the tilting +ring, it was occasionally used in Scotland as a symbol in connection with +what were known as heirship goods. But it had in the twelfth century been +accorded the very loftiest use to which secular symbolism could be turned. +In 1175, King William the Lion, taken prisoner the year before, +relinquished the independence of Scotland, and did homage to the English +King at York, as a condition of his liberation. The contemporary records +are silent regarding symbolic details, but in 1301 Edward I. stated in his +letter to the Pope that "in token of his fealty, William the King of +Scotland, had, on the altar of St. Peter's, at York, offered his cap +(_chappelus_), lance, and saddle, which until this day remain and are +preserved in said church." Any incredulity which a fair-minded Scot can +entertain, regarding this allegation that the freedom of his country was +once symbolically surrendered in King William's cap, will be materially +lessened, and Scottish patriotism so far consoled, by the recollection +that under very similar circumstances the realm of England was in 1193 +given away with the bonnet (_pilleus_) of the captive Richard I., who, +thus (as Hoveden tells us), gave investiture of his kingdom to his +arch-enemy, the Emperor Henry VI. This was, however, only formal: the +Emperor at once re-invested King Richard in his realm with a double crown +of gold, though subject to an annual tribute of Ł15,000--a business +transaction painfully illustrative of the Christian chivalry of the +Crusades. + +The annals of Scotland boast one instance of a royal symbol much more +regal than either of these two. About the beginning of the year 1124, King +Alexander I., restoring by charter to the Bishopric of St. Andrews an +extensive tract of land, completed the grant according to Andrew of +Wyntoun (vii., 5), in a truly stately fashion. He-- + + Gert than to the awtare bryng + Hys cumly sted off Araby + Sadelyd and brydelyd costlykly + Coveryd with a fayre mantlete + Off precyous and fyne welvet + Wyth his armwris off Turky + That pryncys than oysid generaly + And chesyd mast for thare delyte + Wyth scheld and spere off sylvyr qwhyt. + +It was a special occasion, for Bishop Robert's appointment, which had led +to the grant, was a Scottish victory over the pretensions of the See of +York. There is an appeal to the imagination so strong in the scene, that, +in spite of the interval of 300 years betwixt the event and this oldest +record of it, one is slow to offer any criticism on the charger; more +especially as the entire verity of the silver spear is corroborated by +Walter Bower's enshrining in his Scotichronicon the fact that in the +fifteenth century it was doing duty as the shaft of the cross in the +Cathedral. Yet the unexampled symbol, coupled with the analogy from York +in 1175, compels the suggestion, that perhaps during these 300 years an +original _capellus_ have been mis-read as _caballus_, or mistaken for +Scottish _capul_, and thus by the magic of mistranslation, a king's cap +_may_ have been transmuted into an Arab steed. + +Whilst of course a crown was the standard symbol of investiture for a +kingdom, inferior rights of principality were often typified by other +things, such as a sword, a spear, or a banner. And as feudal forms were +observed in the bestowal, so were they sometimes in the taking away. +England dispensed with several of her monarchs, but apparently in no case +was a deposition attended by the feudal solemnities. In Scotland when, in +1296, King John Balliol was pulled out of the throne by the same hands as +had placed him in it, Edward I. spared his vassal little of the indignity +of the situation. Balliol, deprived of his royal ornaments, with the +ermine stripped from his tabard, resigned his realm by the symbol of a +white wand. + + Than this Jhon tuk a quhyt wand + And gave wp in till Edwardis hand + Off this Kynryk all the rycht. + +No Scottish historian has noticed the absolute legal propriety of this, +and it is worth noticing. By contemporary law (_Britton_, ii., 22), _une +blaunche verge_ was the recognised symbol of disseisin by consent. The +thirteenth century was very particular, even in small things, about its +law. _Disseisin_, provided for by statute of 1429, in disputed successions +to real property, and known to Scotland as the breaking of seisin, was +symbolically affected--_frangendo discum_--by the curiously expressive act +of breaking a dish or dishes, with fire underneath. + + + + +Law under the Feudal System. + +BY CUMING WALTERS. + + +To the historian proper feudalism presents a wide subject with diverse +points of interest, but its legal aspect is comparatively a small matter, +and it can be considered without detailed reference to the whole vast +scheme which existed from early German and Gothic times, and overspread +the greater part of Europe. It is a common error to suppose that it was +introduced into England by the Normans. William the Conqueror only +superimposed a French form of feudalism upon that which already existed; +and all historians agree that the measures he adopted, the restrictions he +made, and the original conditions he established, were evidence of his +farseeing genius, and a masterpiece of statecraft. His was a feudalism +which, while giving the lords great personal power and influence, retained +them still as the servants of the king, and totally prevented them from +using their strength against the throne. In this respect the feudal +system in England never resembled that of Germany and France, or even that +which the Norman barons established in Scotland. The Conqueror had no +intention of allowing the owners of territory to supersede his own +authority, and to be beyond the sovereign's control. While, therefore, he +allowed them all liberty in dealing with their dependents, he made it +impossible for them to defy his own authority, first by distributing their +possessions so that they could not have a great army of followers at +command, and, secondly, by insisting upon a formal declaration of +allegiance from both the barons and their vassals. The former, therefore, +were not beyond the law, and the latter had nominally, if not actually, +some right of appeal to the monarch. These points it is necessary to bear +in mind for a full understanding of legal procedure during the long period +feudalism prevailed. + +The feudal lord's claims upon his vassals were numerous. First came his +claim to their military service. He could demand from them service as +assessors in his courts of various fines and payments and confiscations of +land. He could dispose of females in marriage; not infrequently he +consigned them to a debased existence. When the tenant was invested with +possession of his feud or fief, he paid homage to his lord, that is, he +proclaimed himself the "man" to help and to serve his master. Kneeling +humbly before the baron, he took oath of fealty, and practically enslaved +himself. It was here that King William showed his wisdom by ordaining that +the oath of allegiance should be not only to the feudal superior, but to +the monarch as the head of all, and thus he secured the ultimate service +of all vassals to the crown, and deprived the barons of autocratic power. + +The Saxon feudalism had been of the most tyrannical character, the owners +of slaves making their own laws, and carrying them out with the utmost +barbarism. Records exist which prove that for slight offences mistresses +were accustomed to order their servants to be scourged to death, or +subjected to fearful tortures. For breaking a dish, or spilling wine from +a cup, for example, a servant might have his ears cut off, his nose slit, +or suffer the loss of his hand, according to the caprice or fancy of his +lord or lady. While murderers and robbers could find sanctuary in the +Church, servants had no such refuge. They were torn away from the altar +to which they clung in their terror, and none could or would intervene to +protect them. According to the decree of King Ethelred, public punishments +were to be mild, and death sentences were seldom to be passed; but the +sovereign's wishes had no effect upon the treatment of bondmen. High-born +women were as cruel as their husbands, and King Ethelred's own mother is +said to have beaten him so severely when he was a child that he regarded +whipping instruments with horror to the end of his life. Flagellation was +not recognised as a legal punishment by the Saxons, though a husband might +beat his wife and incur no penalty, while the whipping of slaves was +accounted no more than the whipping of animals, and perhaps less. For all +other classes money-fines were almost the only authorised penalty, a fixed +price being set upon persons of different degrees. But the slave had no +real value, and hence could be mutilated or killed at the pleasure of his +lord. + +The ideal of feudalism, never realised in England, was that the king and +his tenants-in-chief should hold law-courts, which the tenant or the +sub-tenants should be bound to attend to have their cases tried according +to statute rules. But the system was only imperfectly carried out, and the +fact that the tenant-in-chief, or feudal lord, had the right to levy taxes +(called "tallage" or "tailles") on his vassels, speedily led to all sorts +of tyranny and abuse. Still, the feudal courts could not engross the +legislation for the excellent reason that the quick-witted Conqueror had +preserved the Witanagenot and the courts of the shire and the hundred to +check the barons. The latter made a big effort to introduce the +Continental system of feudalism, by which each of them would have been +supreme in his domain; but the plans were defeated as we have seen. +William's successors were men of a different stamp, and the system proved +unworkable in the hands of weaker men. "The prince," says Hume, "finding +that greater opposition was often made to him when he enforced the laws +than when he violated them, was apt to render his own will and pleasure +the sole rule of government, and on every emergency to consider the power +of the persons whom he might offend rather than the rights of those whom +he might injure." The mischievous course pleased none, and the royal +prerogative was at last systematically assailed by the barons in the time +of John, and the Magna Charta wrestled from him. The concessions then made +were of benefit to the barons rather than to the landless and dependent +classes, and it remained for the third Edward to diminish their power and +increase the liberties of the populace. + +Law in England during all this period was chiefly a system of oppression, +proceeding stage by stage from the highest to the lowest. The revenues of +the crown were obtained by extravagant rents, forfeits, taxes, reliefs, +fines, aids, and other devices which show the amazing ingenuity of the +extortioners. The result was that most tyrannical exactions were made in +turn by the feudal lords, and the dependents groaned for six centuries +under these lawless yet legalised oppressions. Personal property was at +the mercy of the lords, who adopted the most cruel means to enforce their +"rights." They, in turn, could be the victim of extortions, as was proved +in the case of Roger of Dudley, who was summoned to receive the honour of +knighthood in 1233. He found the honour so expensive that he declined to +appear, whereupon a writ was issued--"Because Roger de Someri, at the +feast of Pentecost last past, has not appeared before the King to be +girded with the military girdle, the Sheriff of Worcestershire is hereby +commanded to seize on the house of Dudley and all other lands of the said +Roger within his jurisdiction, for the King's use; and to keep them with +all the cattle found upon them, so that nothing may be moved off without +the King's permission." The same Roger had a twelve years' dispute with +William de Birmingham touching the service due for the manor of +Birmingham, for which the latter was required to perform the service of +eight knights' fees, a half and a fourth part, and also to do suit to the +court at Dudley once every three weeks. In such wise did these cheftains +rule. Another curious piece of law relating to the Dudley lands is told by +Leland:--"The lorde Powis, grauntfather that is now, being in a +controversy for asawte made upon hym goying to London by the lord Dudeley, +Dudeley castelle condesended by entreaty, that his son and heir should +mary the olde lorde of Dudleis' daughter." A very amiable method of +atoning for personal violence. + +The feudal lord had absolute power over his own family, as well as over +his dependents, the laws of household government being entirely of his +own devising and prompted by his passion, his ignorance, and his +wickedness. Robert de Belesme, Earl of Shropshire and of Arundel and +Shrewsbury, one of the most powerful and defiant barons of Norman times, +tore out the eyes of his own children when they had, in sport, hidden +their faces beneath his cloak. He cast his wife in a dungeon, heavily +fettered; but every night he sent his servants to drag her to his bed, and +in the morning sent her back to her prison. This torture he inflicted upon +her to gain money from her family. He disdained to allow his captives in +war to be ransomed, but impaled them, men and women, upon stakes. His +friends were terrified to approach him, for by way of pleasantry he would +engage them in merry chat and suddenly plunge his sword into their sides +with a loud laugh. No law could touch this man, and no avenger arose to +overcome him. The Warden of the Welsh and English Marches made also his +own laws, which were conceived in a spirit of the utmost cruelty. Border +foragers, for example, were cast into a dungeon, and subjected to the +punishment of having their right hands chopped off with the axe. This +prescribed penalty was often aggravated by additional torture or death. + +Feudalism was deep-rooted, so deep-rooted that not the enactments of all +the Normans and Plantagenets could do more than check its growth and +gradually ameliorate its severities. But while some of the old customs +were abolished, the bulk of the laws remained based upon the Anglo-Saxon +customs, so that as one writer has tersely explained, "the Land Laws and +Game Laws are derived from the Normans, the Common Law from the +Anglo-Saxons, and almost all our Statute Laws breathe the spirit of +pre-Norman England." To this Macaulay refers with ill-disguised scorn in +his History: "Our laws and customs have never been lost in general +irreparable ruin. With us the proceedings of the Middle Ages are still +valid precedents, and are still cited on the gravest occasions by the most +eminent statesmen.... Thus in our country the dearest interests of parties +have been staked on the results of the researches of antiquaries." The +historian, however, does admit that there is compensation for the +anomalies which result from this polity. "Other societies possess written +constitutions more symmetrical. But no other society has yet succeeded in +uniting revolution with prescription, progress with stability, the energy +of youth with the majesty of immemorial antiquity." That the spirit of +olden feudalism should sometimes be found surviving in modern laws is +inevitable. Villenage is extinguished, and yet in the very character of +certain classes, as well as in the operation of certain laws affecting +lands and personal privileges, we see a direct connection between the +submission of the bondman in the past to his hereditary master and the +readiness of the poor in the present to yield to one in higher station. +What struck the philosophic Emerson most, on his visit to England, was +that Englishmen should maintain their old customs, repeat the ceremonies +of the eleventh century, and consider in so many things that "antiquity of +usage is sanction enough." "The Middle Ages," he said, "still lurk in the +streets of London." + +The stocks and the whipping-post, which stood in front of every castle, +were the commonest instruments in use for the punishment of the ceorl and +villein who displeased their masters. For the ceorl, who could not quit +the land on which he was born, or free himself from slavery, life was +particularly hard. He could not absolve himself by money payments, like +the rest of his fellow-men, if once he gave offence; while the majority +could rob and murder and escape with a fine, the ceorl's slightest defect, +real or imagined, was punished with merciless rigour. Tithings and the +process of compurgation came to the assistance of other criminals, but the +ceorl could appeal to none, and expect neither pity nor aid. Such facts +give point to Emerson's dictum that "Castles are proud things, but 'tis +safest to be outside them." The villein was in a much happier state than +the ceorl. He was free against everybody except his lord, and the criminal +code accorded him the same privileges as a free man. The lord was even +liable to punishment for killing or mutilating his villein, and the +_Mirror of Justice_ in the thirteenth century laid down the fact that "the +villein is no serf in any sense of the word; he is a free man; his land is +a free tenure." But all this is largely comparative, and our estimate of +the advantages enjoyed by the villein must depend upon whether we view it +by the standards of the time, or by modern standards. At all events, while +the ceorl tasted all the bitterness of his serfdom, the adjudged felon in +other stations was able to obtain much leniency. The common form of oath +or abjuration in King Edward's time was this: "This heare, thou Sir +Coroner, that I am a robber and a murderer, and a fellow of our Lord the +King of England; and because I have done many such evils in his lande I do +abjure the lande of our Lord Edward, and I shall haste me towards the port +of ----, which thou hast given me, and that I shall not goe out of the +highway, and if I doe, I will that I be taken as a robber and a felon. And +that at such a place I will diligentlie seeke for passage, and I will +tarrie there but one ebbe and flood, if I can have passage; and unlesse I +can have it in such a place I will goe every day into the sea up to my +knees, assaying to pass over; and unlesse I can do this within fortie days +I will put myselfe again into the Church as a robber and a felon, so God +me helpe and his holy judgment." But King Richard showed no disposition to +put so much trust in the honour of these gentry, and when setting out for +Palestine, he made a law against peculating sailors, which was calculated +to dismay them: "Whosoever is convicted of theft shall have his head +shaved, melted pitch poured upon it, and the feathers from a pillow shaken +over it, that he may be known; and shall be put on shore on the first +land which the ship touches." This punishment reminds us of a modern +American institution. + +The law of "Englishry" deserves a passing note. It dates back to the time +of Canute, and was continued by the Normans. When Canute sent away the +greater portion of his Danish troops, "the Witan pledged themselves that +the rest should be safe in life and limb, and that any Englishman who +killed any of them should suffer punishment. If the murderer could not be +discovered, the township or hundred was fined." The proud and tyrannical +Normans used this law to their own advantage. A mere Englishman being a +vassal, and of no importance, could be killed with impunity, but it was +ordained that when a man was found killed, and evidence was not brought to +prove that he was English, he should be held to be a Frenchman, so that a +penalty could be imposed upon the township. This law of "Englishry" is +often illustrated in old chronicles. Men were found murdered by the +roadside, on heaths, and in woods; the chronicles state that "no Englishry +was proved," and the towns were accordingly amerced. The "Frankpledge" was +not so feudal in character, though it was based upon the principle that +"every landless man shall have a lord who shall answer for his appearance +in the courts of law." The custom prevailed before the Conquest, ten men +forming a "tithing," the members of which were answerable each for others. +The present Court Leet is a survival of the system, though in a very +modified form. + +The feudalism which the Norman barons imposed upon Scotland, and which was +unchecked by King William, so that it reproduced all the evils of the +ferocious Continental system, was marked by terrible excesses. No +institution was more shameful and abhorrent, or so vividly reveals the +baseness to which unrestricted feudalism sank, than the horrible depravity +of maiden-rights, or _droits de seigneur_. Beaumont and Fletcher founded +upon the historic incidents their drama of "The Custom of the Country," +and though a few mild attempts have been made to throw doubt upon the +facts, there is no question that these domestic tyrannies spread rapidly +from Scotland to France and Germany, and took numerous odious forms. Isaac +Disraeli, in his "Curiosities," devotes a chapter to the subject, which +can scarcely be dealt with in detail in a work appealing to the general +reader. The shameful institution was abolished by Malcolm III., who, +however, put the matter upon a business basis by ordering that it should +be redeemed by a quit-rent. But the lord still considered himself +privileged to manifest his authority over his vassals by thrusting his +booted leg into the bed of a newly-married couple, or by sousing the +bridegroom in a river. The wardships enjoyed by the feudal lords were +equally absurd, one of their favourite methods of raising money being to +arrange an unsuitable marriage, and on the refusal of the persons to carry +out the contract, to claim the revenue of the wards' estate as "forfeit." +The feudal lord could sell his vassals as he did his animals, and they +were often bartered away with fields and houses. The value of a serf was +roughly apprised as four times that of an ox, and he could also be used as +"live money." + +Mr. Ruskin, in his third letter in "Fors Clavigera," gives an account of +the laws promulgated by King Richard, Coeur de Lion, whom he declared to +be the truest representative of the British "Squire," under all the +significances of that name. The ideal lord was an admixture of the +patriarch and the tyrant, and if we examine Richard's legislation, and +endeavour to recognise the objects he had in view, we see that with a +considerable amount of selfishness he also possessed a real wish to add to +the welfare of his people. He simplified and adjusted the weights and +measures of the country to put an end to cheating, and he took severe +measures "to prevent the extortions of the Jews." If the people would be +honest, he was quite willing to do the fighting for them; if they made +good cloth, he was ready to see that they got good pay; and when they +bought and sold, he was determined that each should give the other good +measure. But with much power comes caprice, and the feudal lords too soon +forgot the interests of their dependents in serving their own ends. The +English barons never made the formal claim of the German barons to rob on +the highways in their own territories, though, without asserting the +right, they frequently performed the act. A case in point is that of +William de Birmingham, who so late as the sixteenth century went out with +a hundred men to molest and rob travellers on foot. The ordinary laws were +unequal to calling them to account for these misdeeds; nothing but +conquest by battle could have checked them. Besides, there were Lord +Palatines whose rule in their own domains was equal to that of the +sovereigns, and they could make or abrogate laws at will. These kings _in +petto_ appointed their own judges and courts, could reverse sentences, +pardon at will for any crime, and indict at pleasure. Offences committed +in the County Palatine were said to be "against the peace" of the lord, +and not against the peace of the king, and it was with a rod of iron that +these despots governed the territory allotted to them. Still there was a +show of legality in this. It differed from the wanton caprice of Geoffrey +of Coventry, who oppressed the inhabitants, was amenable to no law for so +doing, but consented to remit the burdensome taxes if his wife would ride +naked through the streets. As a specimen of the barbarous humour of these +lords, the Godiva story is instructive. + +At the end of King Stephen's troublous reign, there were eleven hundred +and fifteen castles in England, each of them a centre of power, at that +particular time almost absolute. The wise provisions of the Conqueror had +to some extent been overcome, and the feudal lords had become so +unmanageable that Henry II. found himself compelled to stipulate for the +destruction of a number of the strongholds. At the same time he prevented +the erection of others except by royal licence, and so began to limit the +oppression which had prevailed. We find, too, that in consequence of the +frequent over-riding of the common law by men in authority, the monarch +reserved to himself more and more of sovereign power, "by which," says Sir +Robert Filmer in his famous "Patriarcha"--answered by John Locke in the +still more famous treatises on Civil Government--"he did supply the want +or correct the rigour of the common law, because the positive law, being +grounded upon that which happens for the most part, cannot forsee every +particular which time and experience bring forth. Already sundry things do +fall out," he continues later, "both in war and peace, that require +extraordinary help ... so that rare matters do grow up meet to be referred +to the absolute authority of the prince." We find such a case in the time +of Richard II., when, on a question of freehold, the appeal went direct to +the king because "of maintenance, oppression, or other outrages the common +law cannot have duly her course." + +How the lords could avoid and defy the common law is proved by two curious +instances in the history of the Dudleys, the family previously referred +to. Lord Edward Dudley, in 1592, had a dispute with the neighbouring +Lyttelton family, and raising some 150 persons, he went one night and +stole all the cattle on the latter's estate. Lyttelton obtained judgment +against Dudley, who was ordered to return the cattle, but he posted his +servants at the gates, and bade them cut the bailiffs to pieces. Lyttelton +then armed sixty men and took the cattle back by force; Dudley armed 700 +men to fetch them back and kill them. For this offence the nobleman and +eighty followers were indicted, but by one means and another the +proceedings were made to last four years, and then an agreement was +entered into by the parties. Lord Edward's son, Ferdinando, was the hero +of the next exploit. He purchased the property of an oppressed widow, +named Martha Grovenor, for Ł1200, but only paid Ł100. She sued him in the +Exchequer for the remainder, and obtained judgment for the balance. No +notice was taken of this. The following year the widow obtained a second +decree, and this again was ignored. His lordship was next called upon for +costs, and this led him to make an effort to compromise the matter. He +entered into an agreement to pay all arrears and costs, but, having done +so much, refused to fulfil his obligations. An execution of ejectment was +then levied against his lordship. This he avoided for nine years, and it +was only twelve years after negotiations had begun that the widow was able +to obtain her dues. + +A very brief glance at Continental feudalism and its influence upon +statute law may now be given. It enables us to mark some of the +differences between the English and the foreign systems, the one with its +restrictions and the other all-powerful. In the eleventh century, all +France and the German Empire were one vast feudal possession. The powers +of the lords have been classed by the historian Hallam as follows--First, +the right of coining money; second, that of waging private war; third, +exemption from all public tributes except the feudal aids; fourth, freedom +from legislative control; and fifth, the exclusive exercise of original +judicature in their dominions. It is easy to perceive how, with these +initial powers conceded, the seigneurs were enabled to make themselves the +veritable masters of the kingdom. In Germany the lawlessness of the +barons became as proverbial as did their cruelty towards their slaves. The +whole country was divided up into territories over which the feudal chiefs +reigned as absolute and despotic kings. Nor is the spirit of feudalism in +that country yet extinct, for, unlike France, it has not had its bloody +revolt against "aristocrats." No one can have travelled in Germany and +seen the castle towering high on crag or rock, and the diminutive houses +scattered about its base, without realising at a glance how the chieftains +and their serfs lived in the old days. In Germany the feudal system was +seen at its strongest and its worst, and law was paralysed while the men +of lust and blood were supreme in their own dominions. Austria has a +similar story to tell of barbarity towards serfs, and the abrogation of +law by powerful chieftains. But it is remarkable that in Russia, where the +feudal spirit still most strongly survives, and is marked by many excesses +utterly repugnant to the feeling and customs of the times, the earliest +attempts to establish a feudal system were quelled by the princes. In this +land, where a mistress might, until recently, have her maid whipped to +death for dropping a teacup, or for any other trivial offence, real or +imagined, where again it was taken for granted that + + "A Count carbonadoes + His ignorant serfs with the knout," + +feudalism, once instituted, deepened its hold with the progress of years. +While there was no law for the lower classes, save that dictated by the +caprice of their masters, there were special exemptions and priveleges for +the noble and wealthy. The Russian lords pay no taxes, and they retain, in +almost undiminished force, that power to abuse, insult, and destroy the +peasantry which was possessed by the _ancienne noblesse_ of France before +the Revolution. Mr. Morley Roberts, in one of his Russian historical +sketches, relates that not long ago a noble threw a Hebrew into a dungeon +for an offence, and a week later asked his jäger what had become of him. +"Oh," said the fellow with a laugh, "he made so much noise that I shot +him." + +The state of Bohemia from the ninth to the fourteenth century shows to +what deplorable depths a race may sink under an unrestrained and +licentious feudalism. The Bohemian nobles practically abolished the +marriage laws, and in addition to oppressing their dependents, frequently +sold them into slavery. When St. Adalbert endeavoured to effect a +reformation, he found every impediment put in his way, and his wishes +openly defied. He had a horror of bloodshed, and preached the hatefulness +of murder. By way of response, a man, whose wife had been put in a nunnery +to save her from his brutality, was dragged out and butchered in the +streets. Adalbert had to wait long before he could influence these men +who, secure in their castles, could indulge their rapacity without fear of +punishment. Reforms, effected in the tenth century, however, were not +permanent, and in the twelfth century the nobles had succeeded in +converting the local assembly, with its power of appointing judges, to +their own uses. Mr. Edmund Maurice, in his history of Bohemia, relates +that the nobles began to secure the judgeships for themselves, and then +sold or bequeathed the offices to heirs. They thus made the appointments a +means of tyranny and a source of profit, and with the money acquired +purchased the lands of freemen. Others, owing to the unpopularity of the +local tribunals, strengthened the power of their own feudal courts, and +again reduced their dependents to abject slavery. + +"The coolness," says Mr. Maurice, "with which many of the grants of land +transferred workmen of various kinds as mere appendages of fields and +fishponds, is in itself a proof of the degraded position to which the +peasant class had been reduced; and the fact that military service seemed +one of the few means of escaping from serfdom, led the peasants to favour +those wars which in the end increased their misery." Eventually King +Wenceslas, famed in ballad, and still more famed in Bohemian history, came +to the rescue, and ordained "that no baron or noble of the land shall have +power in the city of Brünn, or shall do any violence in it, or shall +detain anyone, without the license and proclamation of the judge of the +city." + +The wide survey we have taken enables a fair estimate to be made of the +state of the law in Europe when the castle was the court of justice, and +the baron was the judge. England alone of all Europeon countries seems to +have been able to place a check upon the more flagrant abuses, and in +later times of reform to have succeeded, while abolishing what was +essentially evil in the system, in retaining whatever of it was of worth. +Whether there be still laws too deeply impressed with feudal ideas for +modern acceptance is a question for legislators to consider. + + + + +The Manor and Manor Law. + +BY ENGLAND HOWLETT. + + +Everything relating to the manor reminds us forcibly of the baron of olden +days, with his little territory, in which he was practically a king. +Estates in copyhold are essentially distinct both in their origin and in +their nature from those of freehold estates. Copyhold lands are holden by +_copy_ of court roll, that is to say, the muniments of the title to such +lands are _copies_ of the roll or book in which an account is kept of the +proceedings in the _court_ of the manor to which the lands belong. For it +must be remembered that all copyhold lands belong to and are parcel of +some manor. An estate in copyhold is not a freehold; but, according to +construction of law, merely an estate _at the will of the lord_ of the +manor, at whose will copyhold estates are expressed to be holden. +Copyholds are also said to be holden _according to the custom_ of the +manor to which they belong, for custom is of course the life and being of +copyholds. + +We must remember that in former days, a baron, or great lord, becoming +possessed of a large tract of land, granted part of it to freemen for +estates in fee simple. Part of the land he reserved to himself, and this +formed the demesnes of the manor, properly so called: other parts of the +land he granted out to his villeins, or slaves, permitting them, as an act +of pure grace and favour, to enjoy such lands at his pleasure; but +sometimes enjoining, in return for such favour, the performance of certain +agricultural services, such, for instance, as ploughing the demesne, +carting the manure, and other such servile work. The lands remaining after +this parcelling out, generally the poorest, formed the waste lands of the +manor, over which rights of commons were enjoyed by the tenants. In this +way arose a manor, of which it will be seen the tenants formed two +classes, the freeholders and the villeins. Now for each of these classes a +separate court was held--for the freeholders a Court Baron; for the +villeins another called a Customary Court. In the former court the suitors +were the judges; in the latter the lord only, or his steward. + +In some manors the villeins were allowed to have life interests, but these +grants were not extended so as to admit any of their children. Hence arose +copyholds for life. Again, in other manors a much greater degree of +liberality was shown by the lords; and on the death of a tenant, the lord +permitted his eldest son, or indeed sometimes all his sons, or sometimes +the youngest only, and afterwards other relations to succeed him by way of +heirship; for which privilege, however, the payment of a fine was usually +required on the admittance of the heir to the tenancy. Frequently it +happened that the course of descent of estates of freehold was chosen as +the model for such inheritances; but in many cases dispositions of the +most capricious kind were adopted by the lord of the manor, and in course +of time actually became the custom of the manor. And thus it was that +copyholds of inheritance arose. Again, if a villein tenant wished to part +with his own parcel of land to some other of his fellows, the lord would +allow him to _surrender_ or yield up again the land, and then, on the +payment of a fine, would indulgently _admit_ as his tenant, on the same +terms, the other, to whose use and in whose favour the surrender had been +made. Thus arose the method now prevalent at the present day, of conveying +copyholds by _surrender_ into the hands of the lord of the manor to the +use of the purchaser, and the subsequent admittance of the latter. By long +custom and continued indulgence that which at first was a pure favour +gradually grew up into a right, and thus it came to pass that the will of +the lord, which had of course originated the custom, came at last to be +controlled by it.[4] + +The rise of the copyholder from a state of uncertainty to certainty of +tenure appears to have been very gradual. Britton, who wrote in the reign +of Edward I., thus describes this tenure under the name of Villeinage. +"Villeinage is to hold part of the demesnes of any lord entrusted to hold +at his will by villein services to improve for the advantage of the lord." +And he further adds that "In manors of ancient demesne there were pure +villeins of blood and of tenure, who might be ousted of their tenements at +the will of their lord." + +In the reign of Edward III. a case occured in which the entry of a lord on +his copyholder was adjudged lawful, _because he did not do his services_, +by which he broke the custom of the manor, which seems to show that even +at that time the lord could not have ejected his tenant without a cause. +And later, in the reign of Edward IV., the judges gave to copyholders a +certainty of tenure by allowing them an action of trespass on ejectment by +their lords without just cause. "Now," says Sir Edward Coke, "copyholders +stand upon a sure ground; now they weigh not their lord's displeasure; +they shake not at every sudden blast of wind; they eat, drink, and sleep +securely; only having a special care of the main chance, namely, to +perform carefully what duties and services soever their tenure doth exact +and custom doth require; then let lord frown, the copyholder cares not, +knowing himself safe." + +In the present day a copyholder has as good a title as a freeholder; in +some respects a better; for all the transactions relating to the +conveyance of copyholds are entered on the court rolls of the manor, and +thus a record is preserved of the title of all the tenants. + +Since the passing of the statute of _Quia Emptores_, 18 Edward I., it has +not been lawful to create a tenure of an estate in fee simple; so that +every manor bears date at least as far back as that reign; to this rule +the few seignories, which may have been subsequently created by the king's +tenants in capite, form the only exception. + +The name "manor" is of Norman origin, but the estate to which it was given +existed, in its essential character, long before the Conquest; it received +a new name as the shire also did, but neither the one nor the other was +created by this change. The local jurisdiction of the thegns who had +grants of sac and soc, or who exercised judicial functions amongst their +free neighbours, were identical with the manorial jurisdictions of the new +owners. + +Although long continued custom has now rendered copyholders quite +independent of the will of the lords, yet all copyholds, properly so +called, are still expressly stated, in the court rolls of manors, to be +holden at the will of the lord; and, more than this, estates in copyholds +are still liable to some of the incidents of mere estates at will. + +In ancient times the law laid great stress on the feudal possession or +seisin of lands, and this possession could only be had by the holder of an +estate of freehold, that is, an estate sufficiently important to belong +to a free man. Now, as we have seen, copyholders in ancient times belonged +to the class of villeins or bondsmen, and held, at the will of the lord, +lands of which the lord himself was alone feudally possessed. The lands +held by the copyholders still remained part and parcel of the lord's +manor; and the freehold of these lands still continued vested in the lord; +and this is the case at the present day with regard to all copyholds. The +lord of the manor is actually seised of all the lands in the possession of +his copyhold tenants. + +The lord, having the legal fee simple in the copyhold lands comprised in +his manor, possesses all the rights incident to such an estate, controlled +only by the custom of the manor, which is now the tenant's safeguard. Thus +he possesses a right to all the mines and minerals under the land, and +also to all timber growing on the surface, and this even though the timber +may have been planted by the tenant. However, it must be borne in mind +that these rights are somewhat interfered with by the rights which long +continued custom has given to the tenants, for the lord cannot come upon +the lands to open his mines, or to cut his timber, without the +copyholder's leave. + +A copyholder cannot commit any waste, either voluntary, by opening mines, +cutting down timber or pulling down buildings; or permissive, by +neglecting to repair. For the land, with all that is under it or upon it, +belongs to the lord of the manor; the tenant has nothing but a customary +right to enjoy the occupation; and if he should in any way exceed this +right, a cause of forfeiture to his lord would at once accrue.[5] + +By the customs of manors, on every change of tenancy, whether by death, +sale, or otherwise, fines of more or less amount become payable to the +lord. By the customs of some manors the fine payable was anciently +arbitrary; but now in modern times, fines, even when arbitrary by custom, +are restrained to two years' improved value of the land after deducting +quit rents. + +In some manors a fine is due on the change of the lord; but in this case +the change must always be by act of God, and not by any act of the party. + +The tenure of an estate in copyholds involves an oath of fealty from the +tenant, and together also with suit to the customary court of the manor. +Another incident of the tenure, and this sometimes a very profitable one, +is the escheat to the lord on failure of heirs. + +Before the abolition of forfeiture for treason and felony, the lord of a +copyholder had a great advantage over the lord of a freeholder in this +respect, that, whilst freehold lands in fee simple were forfeited to the +crown by the treason of the tenant, the copyholds of a traitor escheated +to the lord of the manor of which they were held. + +One of the most curious incidents of the tenure is the right of the lord, +on the death of a tenant, to seize the tenant's best beast, horse, or +other chattel under the name of a heriot. Now it would appear that heriots +were introduced into England by the Danes. The heriot of a military tenant +was his arms and habiliments of war, which belonged to the lord for the +purpose of equipping his successor. And it would seem that in analogy to +this purely feudal custom, the lords of manors usually expected that the +best beast or other chattel of each tenant, whether he were a freeman or a +villein, should on his death be left to them. In old wills of copyholders +we constantly find this legacy to the lord of the manor the first bequest +mentioned: in fact the tenant really making a bounty of what was actually +an obligation. In cases where the tenant died intestate the heriot of the +lord was taken in the first place out of his effects, unless indeed the +lord seized the whole of the goods, which not unfrequently happened in +days before custom had so completely controlled the rights of the lord, +and at the same time protected the interests of the tenant. Heriots +survive to this day in many manors, a true badge of the ancient servility +of the tenure. Now, however, the right of the lord is confined to such a +chattel as the custom of the manor, grown into a law, will permit him to +take; and in most cases the heriot consists not of a chattel at all, but +merely of a money payment. + +The mode in which copyhold land is transferred from one person to another +still retains much of the primitive simplicity of bygone ages. The +copyholder personally surrenders the lands into the hands of the lord, +generally through his steward, and this surrender is evidenced by the +delivery of some article varying according to the custom of the particular +manor: in some manors the surrender is effected by the delivery of a rod, +in others of a straw, and again in others by a glove. The surrender having +been duly effected, the purchaser is admitted, and the various documents +used are all entered upon the court rolls of the manor. The steward is the +person who makes the entries on the court rolls, and they are kept in his +custody, but subject however to the right of the tenants to inspect them. +The steward also usually presides at the copyhold courts of the manor. + +A special custom is required to entitle the wife of a copyholder to any +interest in her husband's lands on his death intestate. Where such a +custom does exist the wife's interest is termed her _freebench_, and it +consists generally of a life interest in one-third part of the lands of +which the husband died possessed. Freebench in most manors differs from +the ancient right of dower in this most important particular, that whilst +the widow could claim her dower out of all the freehold lands which her +husband actually possessed at any time during the marriage, the right to +freebench does not in general attach until the actual death of the +husband, and of course may be defeated by a devise of lands by the +husband's will. From this it will be seen that freebench is no impediment +to free alienation by the husband of his copyholds without any consent on +the part of his wife. To this general rule, however, the manor of +Cheltenham forms an important exception; for by the custom of this manor +the widow's freebench attaches in the same way as the ancient right of +dower did on all the land of copyhold tenure, of which the husband at any +time during the marriage had been possessed. + +Centuries have robbed the manor of much of its importance; most of the +honour and prestige has decayed which once surrounded the lord, his power +has become controlled by long continued custom, so that the copyhold +tenants are practically independent of him, and have as good a title to +their lands as freeholders. Little remains beyond the most prominent of +the old formalities, which at one time gave dignity and importance to the +lord of the manor and his court. Most of the dealings with copyhold land +are now effected out of court, and although the courts are still held at +the customary periods, they are for the most part an empty formality, +their glamour gone, yet still possessing an especial interest of their own +as evidence of the surviving of ancient customs, which have practically +remained unchanged through the roll of centuries. + + + + +Ancient Tenures. + +BY ENGLAND HOWLETT. + + +Practically all the landed property in England is, by the policy of our +laws, supposed to be granted by, dependent upon, and holden of some +superior lord, in consideration of certain services to be rendered to such +lord by the possessor of this property, and the terms or manner of their +possession is therefore called a _tenure_. Thus all the land in the +kingdom is supposed to be held, mediately or immediately, of the sovereign +who is consequently styled the lord or lady _paramount_. + +All tenures being thus derived, or supposed to be derived, from the +sovereign, those who held directly under such sovereign, and in right of +the crown and dignity, were called tenants _in capite_, or _in chief_, +which was the most honourable species of tenure, although at the same time +it subjected the tenants to far greater and more burthensome services than +the inferior tenures did, and this distinction ran through all the +different sorts of tenure. William I., and other feudal sovereigns, +although they made large and numerous grants of land, always reserved a +rent or certain annual payments, which were collected by the sheriffs of +the counties in which the lands lay, to show that they still retained the +_dominium directum_ in themselves. + +With our ancestors the most honourable and highly esteemed species of +tenure was that by knight service, and this was purely and entirely a +military tenure, being, in fact, the result of the feudal establishment in +England. Now to make a tenure by knight service, a determinate quantity of +land was necessary, which was called a knight's fee, _feodum militare_; +the measure of which in 3 Edward I., was estimated at twelve ploughlands, +and its value (although it varied with the times) in the reigns of Edward +I. and Edward II. was stated at Ł20 per annum. The knight who held this +proportion of land was bound to attend his lord to the wars for forty days +in every year, if called upon so to do, which attendance was his rent or +service for the land he claimed to hold. If, however, he held only half a +knight's fee, he was only bound to attend his lord twenty days, and so on +in proportion. This tenure of knight service drew with it several +consequences as inseparably incident to the tenure in chivalry, and one of +the most profitable, and, at the same time, arbitrary of these was +marriage. This incident called marriage was the right which the lord +possessed of disposing of his infant wards in matrimony, at their peril of +forfeiting to him, in case of their refusing a suitable match, a sum of +money equal to the value of the marriage; that is, what the suitor was +willing to pay down to the lord as the price of marrying his ward; and +double the market value was to be forfeited, if the ward presumed to marry +without the consent of the lord. + +The personal attendance rendered necessary by knight service growing +troublesome and inconvenient in many respects, the tenants found means of +compounding for it; first, by sending others in their stead, and then in +process of time making a pecuniary satisfaction to the lord in lieu of it. +This pecuniary satisfaction at last came to be levied by assessments at so +much for every knight's fee; the first time this appears to have been done +was in 5 Henry II., on account of his expedition to Toulouse; but it soon +became so universal that personal attendance fell quite into disuse. From +this period we find, from our ancient histories, that when the kings went +to war, they levied scutages on their tenants, that is, on all the +landowners of the Kingdom, to defray their expenses, and to pay for the +hire of troops. + +These assessments, in the time of Henry II., seem to have been made in a +most arbitrary manner, and entirely at the king's will and pleasure. The +prerogative became, indeed, abused to such an extent, that at last it +became a matter of national clamour, and King John was obliged to consent +by his _Magna Carta_, that no scutage should be imposed without the +consent of Parliament. But this clause was omitted in the Charter of Henry +III., where we only find that scutages, or escuage, should be taken as +they were used to be taken in the time of Henry II.; that is, in a +reasonable and moderate manner. Yet afterwards, by statute 25 Edward I., +and many subsequent statutes, it was again provided, that the king should +take no aids or tasks but by the common assent of the realm; hence it was +held that scutage, or escuage, could not be levied except with the consent +of Parliament; such scutages being indeed the groundwork of all +succeeding subsidies, and the land tax of later times. + +It will easily be seen that with the degenerating of knight service, or +personal military duty into a pecuniary assessment, all the advantages +were destroyed, and nothing in fact remained but the hardships. Instead of +having a national militia, composed of barons, knights, and gentlemen, +bound by their interests and their honour to defend the king and country, +the whole system of military tenures tended to nothing else but a wretched +means of raising money to pay an army of occasional mercenaries. At length +the military tenures, with all their heavy appendages were destroyed at +one blow by statute, 12 Charles II., C. 24, which enacts "that the courts +of wards and liveries, and all wardships, liveries, primer seisins, and +ousterlemains, values and forfeitures of marriage, by reason of any tenure +of the king or others, be totally taken away. And that all fines for +alienation, tenures by homage, knight service, and escuage, and also aids +for marrying the daughter, or knighting the son, and all tenures of the +king _in capite_, be likewise taken away. And that all sorts of tenures, +held of the king or others, be turned into free and common socage; save +only tenures in frank almoign, copyholds, and the honorary services of +grand serjeanty." + +Another ancient tenure was that by _Grand Serjeanty_, whereby the tenant +was bound, instead of serving the king generally in the wars, to do some +special honorary service for the king in person; as to carry his banner, +his sword, or the like; or to be his butler, champion, or other officer at +his coronation. Tenure by _cornage_ was a species of grand serjeanty, +being a grant of land upon condition that the tenant was to wind a horn +when the Scots or other enemies entered the land, in order to warn the +king's subjects. + +The tenure of petit serjeanty bears a great resemblance to the tenure of +grand serjeanty; for as the one is a personal service, so the other is a +rent or render, both tending to some purpose relative to the king's +person. Petit serjeanty as defined by Littleton, consists in holding lands +of the king, by service of rendering to him annually some small implement +of war, as a bow, a sword, a lance, an arrow, or the like. This, of +course, is but socage in effect, for it is no personal service, but a +certain rent. The tenure by which the grants to the Duke of Marlborough +and the Duke of Wellington, for their great military services to the +country, are held, are of this kind, each rendering a small flag or ensign +annually, which is deposited in Windsor Castle. Bury House (New Forest), +the property of Sir Charles Mill, Bart., is held by the tenure of +presenting the king whenever he enters the New Forest with a brace of +milk-white greyhounds. A breed of these dogs is preserved by the family in +readiness. King George III. received dogs in recognition of this tenure in +1789, and the incident is the subject of one of Lawrence's pictures. + +In Beckwith's edition of Blount's "Fragmenta Antiquitatis," the following +tenure is inserted from the "Black Book of Hereford."--"The tenants at +Hampton Bishop, in the county of Hereford, were to get yearly six horse +loads of rods or wattels, in the Hay Wood, near Hereford, and bring them +to Hereford to make booths (or hurdles to pen sheep in) at the fair when +they should be required; and for every load of the said rods they were to +be allowed a halfpenny at the fairs." + +This tenure would appear to relate to one particular fair only, and not to +all the fairs formerly held at Hereford. The particular fair is supposed +to have been the one beginning on May 19th, and commonly called the +nine-days' fair, from the circumstance of its continuing for that length +of time. From time immemorial this fair was proclaimed, with certain +formalities, by the Bishop of Hereford's bailiff, or his deputy, the tolls +of the fair belonging to one or both of these officers. During the +continuance of the fair, the Bishop's bailiff superseded the Mayor of +Hereford as acting magistrate, the fair being held in a street opposite +the Bishop's palace. + +Brienston, in Dorsetshire, was held in grand serjeanty by a curious +jocular tenure, viz.:--by finding a man to go before the king's army for +forty days when he should make war in Scotland (some records say in Wales) +bareheaded and bare-footed, in his shirt, and linen drawers, holding in +one hand a bow, and in the other an arrow without feathers.[6] + +The Dukes of Athol hold the Blair Athol estate by the tenure of presenting +a white rose to the sovereign whenever he visits them there. + +Land was frequently held by the tenure of protecting the church property +in times of war. Scott tells us how the Bishop of Durham gave lands to +the Danish Count, Witikind, to be held by this tenure. The story is not +true, but the tenure is; + + Broad lands he gave him on Tyne and Wear, + To be held of the Church by bridle and spear; + Part of Monkwearmouth, of Tynedale part, + To better his will and soften his heart. + _Harold the Dauntless._ + Canto i., IV. + +The tenure of ancient demesne exists in those manors, and in those only, +which belonged to the crown in the reigns of Edward the Confessor and +William the Conqueror, and in Domesday Book are called _Terroe Regis +Edwardi_. The tenants are freeholders and possessed certain privileges, +the chief of which was a right to sue and be sued only in their lord's +court. + +Another kind of ancient tenure, still subsisting, is the tenure of +frankalmoign, or free alms, and this is the tenure by which the lands of +the church are for the most part held. This tenure is expressly excepted +from the statute, 12 Charles II., by which the other ancient tenures were +destroyed. It has no peculiar incidents, the tenants not being bound even +to do fealty to the lords, because, as Littleton says, the prayers and +other divine services of the tenants are better for the lords than any +doing of fealty. As the church is a body having perpetual existence, there +is, moreover, no chance of any escheat. By this tenure almost all the +monasteries and religious houses held their lands. It was an old Saxon +tenure; and continued under the Norman revolution, through the great +respect that was shewn to religion and religious men in ancient times. +This too, no doubt, is the reason that tenants in frankalmoign were +discharged from all other services except the repairing of highways, +building castles, and repelling invasions; just in fact as the Druids, +among the Ancient Britons, had similar privileges. The tenure being purely +spiritual, the lord had no remedy for neglect by distress or otherwise, +but merely a complaint to the ordinary to correct it. + +One of the most interesting tenures is that of Borough English. There are +a great number of manors throughout the country in which this tenure +prevails; they are not however confined to one county or one district. +Borough English is the right of succession of the youngest son, instead of +the eldest, to real estate in case of intestacy, but the custom is not +always the same; it differs in different manors. In some it is confined +to the sons only, and if there should be no son the estate is shared +equally amongst all the daughters. In other manors, principally Sussex, +the youngest daughter inherits. Again, there are cases to be found where +if there be no children, the youngest brother inherits, and in others it +goes according to the rules of the common law. There are, moreover, places +in which the copyhold land only is Borough English, while the freehold is +held by the ordinary tenure, and in others the freehold and copyhold alike +follow the Borough English custom. + +The area over which this Borough English tenure prevails is an exceedingly +wide one. It is found in nearly every part of Europe, except perhaps Italy +and Spain--in Germany, Hungary, the Ural mountains, and in Asia as far as +the borders of China. Many attempts have been made to explain the custom. +Littleton suggests that the youngest son, by reason of his tender age, is +not so capable as the rest of his brethren to help himself. It is possible +the origin may have come to us from the Tartars, amongst whom this custom +of descent to the youngest son also prevails. That nation is composed +almost entirely of shepherds and herdsmen, and the elder sons, as soon as +they are capable of leading a pastoral life, migrate from their father +with a certain allotment of cattle, and go to seek a new habitation. And +thus we find that, among many other northern nations, it was the custom +for all the sons, but one, to migrate from the father, which one became +his heir. + +The tenure of Gavelkind prevails principally in the County of Kent. It is +universally known what struggles the Kentish men made to preserve their +ancient liberties, and with how much success those struggles were +attended. It seems fair therefore, to conclude that this custom was a part +of those liberties, agreeably to the general opinion, that Gavelkind, +before the Norman Conquest, was the general custom of the realm. The +distinguishing properties of this tenure are various; some of the +principal are these: 1. The tenant is of age sufficient to alienate his +estate by feoffment at the age of fifteen. 2. There never was any escheat +in case of an attainder and execution for felony; their maxim being "the +father to the bough, the son to the plough." 3. In most places, the tenant +had the power of devising his lands by will, before the statute for that +purpose was made. 4. The lands descend not to the eldest, youngest, or any +one son only, but to all the sons together. This last incident is, of +course, the most important affecting the tenure, and not only this, but +also the most interesting, in that, like Borough English, it prevails to +the present day. True it is that certain lands in Kent, once Gavelkind, +have been made descendable according to the rules of the common law, by +special statutes; however, these statutes only affect a very small portion +of the county. + +Gavelkind and Borough English, being customs already acknowledged by the +law, need not be specially pleaded; it is sufficient to show that the +lands are affected and regulated by the same; but all other private +customs must be pleaded. + +The ancient Barons of Buccleuch, both from feudal splendour and from their +frontier situation, retained in their household at Branksome a number of +gentlemen of their own name, who held lands from their chief for the +military service of watching and guarding his castle. + + Nine and twenty knights of fame + Hung their shields in Branksome Hall + Nine and twenty squires of name + Brought them their steeds from bower to stall. + Nine and twenty yeomen tall + Waited duteous on them all. + They were all knights of metal true, + Kinsmen to the bold Buccleuch. + "Lay of the Last Minstrel."--Scott. + Canto i., III. + + + + +Laws of the Forest. + +BY EDWARD PEACOCK, F.S.A. + + +The subject of "The Laws of the Forest" and of the wild things which have +their homes therein, both in our own island and elsewhere, has been a +matter of discussion for ages; but very little has been written thereon +which is of much service, except to legal specialists. It is, indeed, one +of those difficult subjects which is hardly possible to make interesting +to those whose thoughts range in the present rather than in the past. + +There can be no doubt whatever, that from the birth of the human race, +long ere we can trace our history back in written documents, the killing +of animals has been a sport as well as a means of procuring food; both +these may be considered, whatever certain dreamers may aver to the +contrary, as among the necessities of human life. We cannot be quite +certain whether the stone axes, hammers, and spears, of which we see such +numbers in our museums, were wrought in anticipation of the delights of +the chase, or whether they were simply, what may be called, the tools of +the primćval butcher; but, knowing as we do, the contempt in which every +man at the present hour is held, who having wealth and leisure enough to +indulge in what is called "sport," abstains from amusing himself in some +form of slaughter, we may well believe that our palćolithic predecessors, +however empty the larder might be, would try to impose on themselves that +what they did was done to amuse themselves, as a manly exercise, not a +stern necessity. In confirmation of this, we must call mind that there +have been found several weapons with the reindeer and other animals +carved, or perhaps it would be better to say scratched, upon them with a +high degree of pictorial excellence; we may therefore infer that +amusement, as well as appetite, occupied the minds of those early artists, +who so deftly represented the creatures on whom they waged war. Had they +merely been regarded as things to be eaten, such as the tinned meats we +now buy from the provision merchant, they would never have been held +worthy of artistic treatment. + +One of the oldest proverbs that have come down to us, if indeed it be not +the very oldest, is that wherein we are told something + + "Of Nimrod the founder + Of empire and chace, + Who made the woods wonder + And quake for their race." + +That he was the first of the great hunters is a dream of Lord Byron's, not +in any way countenanced by Holy Scriptures, or any of the old authorities. +We are simply told in Genesis that Nimrod was a son of Cush, and that "He +began to be a mighty one in the earth. He was a mighty hunter before the +Lord. Wherefore it is said, even as Nimrod the mighty hunter before the +Lord."[7] The precise meaning of this has been questioned. It most likely +signifies that Nimrod was the first person who organised those mighty +hunting expeditions, which were so famous in the days of the great +Oriental despotisms. From these tyrants it is probable that the Forest +Laws of Medićval Europe had their origin. In the sculptures that have been +unearthed in the dead cities of the East, hunting scenes of great +magnificence are not uncommon, nor are they unknown in Egypt, where, +however, the capture of fish was the more common sport, as the Nile may +be said to have been at every man's door. + +That Forest Laws of some kind or other existed in these far-off times may +be accepted as certain, and we may take it for granted, when we call to +mind the general legislation then in force, that they were terribly cruel +according to our modern ideas, but we can at present only arrive at these +conclusions by inference. + +When Rome became the mistress of the world, we know that in many parts of +the empire the wild creatures were rigorously preserved, but we do not +think that they were often hunted by their owners. Such was rather the +duty of freed men and slaves. Those which were fit for food were preserved +as delicacies for the table, but the larger beasts, such as the lion, the +tiger, the bear, the lynx, and perhaps even the wild cat, were reserved +for the sports of the amphitheatre. Amphitheatres were much more common +than is usually supposed. In a few places their remains exist still, but +most of them have perished, serving as quarries for stone during the whole +of the Middle Ages, and in Mohammedan lands to a much more modern period, +perhaps even to the present day. We are not sure that any list of them +has been preserved, or could now be compiled, but they were so numerous +throughout the empire that the possession of wild beasts on the immense +estates of the Roman patricians must have been a great source of wealth to +their owners. The Roman nobles did not care for field-sports as the +northern nations did. A feeling or instinct of this kind dies hard. At the +present day the Italian cares much less for such amusements than the +Englishman, the German, or the inhabitants of northern France. Virgil, who +represents more fully than any other heathen poet, the feelings of the +better sort of Romans of his own time, says, attributing the words to +another, but evidently speaking his own thoughts:-- + + "Above aught else let the woods be dear to me."[8] + +This was, however, not for the sake of the slaughter that might be +perpetrated therein, but on account of their many beauties and the +grateful shade which they afforded. Virgil was in many respects a modern +in his love of scenery, though we doubt whether snow-clad mountains and +craggy heights would have appealed to him as they have done to us during +the short time that has elapsed since we have been able to see them +without discomfort. + +When the Roman Empire was in the zenith of its glory, there does not seem +to have been in Gaul or Britain any vast stretches of forest. The country +was no doubt well wooded when we compare it with the France or England of +to-day, for during the last two hundred years trees have been wantonly +destroyed, to the great injury of agriculture as well as local beauty, for +the sake of supplying land-owners with ready money. Long continued wars +have also desolated the national forests for the sake of supplying timber +to the shipbuilder. + +After the various invasions which desolated so many parts of the Roman +Empire, large portions of Gaul reverted to a state of nature. Towns and +villages were burned, their inhabitants slaughtered, or scattered far away +from their homes. A picturesque account of what followed is given in +Montalembert's _Les Moines d'Occident_, from which we gather that much of +Gaul had reverted to a state of nature, such as it was in ere civilisation +had made its first incursions on the untamed wilderness. The lives of the +early Gallic saints, found scattered through the many volumes of the +_Acta Sanctorum_, bear the like testimony, as do many parts of the old +romances, the scenes of which so often lie in the trackless forest. + +In England, things may not have been quite so woeful. The population, we +believe, never became so scanty as in Eastern Gaul. It is still a matter +of controversy whether here the native folk were slaughtered or driven +into the mountains of Wales, or whether the greater part of them were made +bondmen. We hold the latter opinion, but the whole subject is beset with +great difficulties. However this may be, it is quite certain that the +population was very much reduced; many wide districts, which had been +carefully cultivated by the Roman settlers, or natives who had adopted +their manners, were laid waste. The picturesque villas, with their +adjoining peasant homesteads, were all gone--burnt with fire,--and +woodland, scrub, or mere sandy desolation supplied the place of the +adjoining pleasure-grounds, farms, and pastures. One of these desolate +tracts named Andredsweald stretched from Kent to the Hampshire Downs, at +some points almost touching the Thames. Another great forest appears to +have extended from a point a little to the north of London, till it +reached the forests of Rockingham and Sherwood. The great level of +Hatfield Chace seems to have been a spur of this, if not so, they were but +separated by a narrow stretch of cultivated land from the forest itself. +Deer were plentiful on Hatfield Chace until the reign of Charles the +First. They even continued to exist longer on the eastern side of the +Trent, on a long and narrow belt of scrub which extended from Morton, near +Gainsburgh, to the point where the Trent falls into the Humber. An +ancestor of our own, who died as recently as 1758, was accustomed to hunt +them there. As well as these larger forests, the whole land was dotted +over with places once the sites of Roman dwellings, but which now had +become either mere wastes, or woodlands covered with tall timber trees, +interspersed with the elder, the nut, the thorn, the birch, the maple, and +the alder. In some places the yew and the holly were abundant also, but +they seem to have flourished only in widely separated patches. + +The Saxon and the Danish conquests came about gradually, and the country +was in so disturbed a state that it was impossible for rigid Forest Laws +to be enacted, or even if written on parchment to be put in force. +Besides this, the Saxon and Danish leaders were of a different character +from their Norman successors. A vague memory still haunted them of the +free life once lived in Germany and Scandinavia; a life as different as +can well be imagined from that of modern democracy, but still one in which +every thrall, bondman, and slave had certain well ascertained rights, +which were under the protection of the State and the Church. + +Thus it came to pass that there were in almost every district stretches of +forest land, which were, in a great degree, open to the people, where men +could fell timber for their dwellings and slaughter animals for food; +though even before the Norman Conquest had come as a shadow on the +liberties of Englishmen, there is reason for thinking that forestal-rights +had become, in name at least, a privilege of the king and his great +theďgns. + +The Norman Forest Law was of a similar character to that which William's +forefathers had enforced in Normandy. The country, which we have for ages +known as France, was, in earlier times, broken up into many provinces, and +it was only by a slow process that it became one. Each of these provinces +had a Forest Law of its own. When the Normans settled in the goodly land +which they called after themselves, they retained the customs which they +found there. When William transferred the laws of his old duchy to his new +kingdom, it could, at the first, only be by an act of favour that anyone +could kill a beast of chase except himself or his retainers. This from the +nature of things did not last long. William never could have intended to +retain the whole of the vast territories which the victory of Senlac had +given him in his own possession. He divided the kingdom among his chief +tenants--tenants _in capite_,--and to these great men, with some slight +exceptions, he handed over all forestal rights which existed in their +domains, the king retaining to himself for his own pleasure, and as a mark +of dignity, some great forests, which for ages have remained in royal +hands. + +Notwithstanding certain Danish and Saxon charters, it has always been +traditionally held that our Forest Laws come from William the First, and +this is substantially true, though objections to the statement might be +taken. It would not be unsafe to say that no one but the Conqueror could +have enforced so drastic a regulation. As the Bishop of Oxford has so +truly said, "The King made and kept good peace. The Dane-geld and the +Forest-Law were not too much to pay for the escape from private war and +feudal disruption."[9] It is true that William had desolated large tracts +of land to make them serve him for the chase; the crime was terrible, +though exaggerated by modern historians; but he had many noble qualities, +so that those who had not personally suffered were willing to overlook the +evil. With his son, William the Red, the Forest Laws became unbearable, +and were hated by baron and villain alike. + +He was one of the worst kings which ever disgraced the English throne. In +a deeply religious age he was wantonly opposed to all godliness. Alike the +enemy of God and Man, a type and representative of all things evil, we +need not wonder when he fell by an arrow in the New Forest, that men saw a +visible judgment of God. + +To him, and to Henry the First, are commonly ascribed the ferocity of the +Forest Laws. Men believed that in after time kings would have mitigated +matters had it been in their power. They said, and there is much truth in +the averment, that these bad laws required the support of an army of evil +men to work them efficiently, and that for the ordinary court officials, +or the king himself, to thwart these people would be especially dangerous. +When we call to mind what have been from time to time the characters of +the farmers of the taxes at Naples, and various parts of France, we cannot +deny that there is much truth in the statement. + +Affairs reached their most evil point when Henry II. was King. It was then +the custom for the royal foresters to be a complete law unto themselves, +they put to death and mutilated whom they would without any trial +whatever, or with but the mockery of the water-ordeal, a farce which had +already been condemned by the Church, but which was very fashionable with +ruffians who were anxious to secure a conviction. One of these fellows +laid hold of an ecclesiastic, with the intention of extracting from him a +large sum of money. Well was it for him that he was of the diocese of +Lincoln, and that at that time Hugh of Avalon was its bishop. The thunders +of excommunication were at once heard, the ecclesiastic escaped from the +forester's clutches, and from that time forward, though much yet remained +to be done, the tide turned, and the Forest Laws were administered with +something more nearly approaching to justice. + + + + +Trial by Jury in Old Times. + +BY THOMAS FROST. + + +When we congratulate ourselves, as we are so apt to do, on the length of +time the system of trial by jury has been established in England, and the +safeguard it affords against attempts to strain the law to the prejudice +of the accused, we are often unmindful of the fact that the institution +has not always proved a safeguard when the court, acting under the +influence of the Crown, endeavoured to obtain a conviction. It was only in +the latter half of the sixteenth century that juries began to evince that +determination not to yield their own judgment to the wishes of those in +high authority, which became further developed in the course of the +seventeenth. An interesting illustration of the old spirit of judges, and +the new spirit of juries, is afforded by the trial of Sir Nicholas +Throckmorton, in 1554, on a charge of high treason, in conspiring the +death or deposition of the Queen, and the seizure by force of arms of the +Tower of London. The prosecution was conducted by Serjeant Stanford and +the Attorney-General, Griffin, the former leading; and it is noteworthy +that both they and Chief Justice Bromley questioned the prisoner in much +the same manner as is still customary in France and Belgium, striving to +procure evidence that would convict him out of his own mouth. The +endeavour failed, and the only criminating evidence against the prisoner +was contained in the alleged confessions of Winter and Crofts, who, +however, were not called as witnesses. + +The jury, after several hours' deliberation, returned a verdict of not +guilty, upon which the Lord Chief Justice addressed them in threatening +tones, saying, "Remember yourselves better. Have you considered +substantially the whole evidence as it was declared and recited? The +matter doth touch the Queen's highness and yourselves also. Take good heed +what you do." The jury were firm, however, and the foreman replied to the +remonstrance of the bench, "We have found him not guilty, agreeable to all +our consciences." Then the Attorney-General rose, and addressing the +court, said, "An it please you, my lords, forasmuch as it seemeth these +men of the jury, which have strangely acquitted the prisoner of his +treasons whereof he was indicted, will forthwith depart the court, I pray +you for the Queen that they and every one of them may be bound in a +recognizance of Ł500 a-piece, to answer to such matters as they shall be +charged with in the Queen's behalf, whensoever they shall be charged or +called." The court went beyond even this audacious request, for they +actually committed the jury to prison! Four of them were discharged +shortly afterwards, having so little moral stamina left as to make a +humble confession that they had done wrong; but the remaining eight were +brought before the Star Chamber and severely dealt with, three being +ordered to pay a fine of Ł2,000 each, and the others Ł200 each. + +In the following reign, in a case in which three persons were indicted for +murder, and the jury found them guilty of manslaughter only, contrary to +the direction of the court, the jurors were both fined and bound in +recognizances for their future "good behaviour." A decision of the Lord +Chancellor, the two Chief Justices, and the Chief Baron, in the reign of +James I., sets forth that when a person is found _guilty_ on indictment, +the jury should not be questioned; but when a jury has acquitted a +prisoner against what the court holds to be proof of guilt, they may be +charged in the Star Chamber, "for their partiality in finding a manifest +offender not guilty." In 1667, we find this view extended to the case of +grand juries ignoring a bill on grounds which the court did not consider +sufficient. Chief Justice Kelying in that year having fined a grand jury +of the County of Somerset, for not finding a true bill against a man +accused of murder; but, says the report, "because they were gentlemen of +repute in the county, the court spared the fine." This case, and several +others in which the same judge had acted in a similar manner, were brought +under the notice of the House of Commons, however, and that assembly +resolved "that the precedents and practice of fining or imprisoning jurors +for verdicts is illegal." + +Notwithstanding this resolution of the House of Commons, William Penn, and +another member of the Society of Friends, named Mead, being indicted at +the Old Bailey for having, with other persons unknown, unlawfully and +tumultuously assembled in Gracechurch Street, in the City of London, the +Recorder dealt with the jury in a manner which caused the illegality of +fining jurors for their verdicts to be again brought into question. The +indictment set forth that Penn, by agreement with and abetment of Mead, +did in the open street speak and preach to the persons there assembled, by +reason whereof a great concourse of people gathered and remained a long +time, in contempt of the King and the law, and to the great terror and +disturbance of many of His Majesty's liege subjects. The trial took place +before the Recorder, the Lord Mayor, and the Aldermen; and when witnesses +had deposed that Penn had preached, and that Mead was there with him, the +Recorder summed up the evidence, and the jury retired to consider their +verdict. They were absent a considerable time, at length returning with +the verdict that Penn was "guilty of speaking in Gracechurch Street." + +"Is that all?" the Recorder asked. + +"That is all I have in commission," replied the foreman. + +"You had as good say nothing," observed the Recorder, and the Lord Mayor +added, "Was it not an unlawful assembly? You mean he was speaking to a +tumult of people there." + +"My lord," returned the foreman, "that is all I have in commission." + +"The law of England," said the Recorder "will not allow you to part until +you have given in your verdict." + +"We have given in our verdict," returned the jury, "and we can give in no +other." + +"Gentlemen," said the Recorder, "you have not given in your verdict, and +you had as good say nothing; therefore go and consider it once more, that +we may make an end of this troublesome business." + +The jury then asked for pen, ink, and paper, and the request being +complied with, they again retired, returning after a brief interval with +their verdict in writing. They found Penn "guilty of speaking or preaching +to an assembly met together in Gracechurch Street," and Mead not guilty. + +"Gentlemen," said the Recorder, regarding the jury angrily, "you shall not +be dismissed till we have a verdict that the court will accept; and you +shall be locked up, without meat, drink, fire, and tobacco. You shall not +think thus to abuse the court. We will have a verdict, or you shall starve +for it." + +Penn protested against this course, upon which the Recorder ordered the +officers of the court to stop his mouth or remove him. The jury not +leaving their box, the Recorder again directed them to retire and +re-consider their verdict. Penn made a spirited remonstrance. "The +agreement of twelve men," said he, "is a verdict in law, and such a one +having been given by the jury, I require the clerk of the peace to record +it, as he will answer at his peril. And if the jury bring in another +verdict contradictory to this, I affirm they are perjured men in law. You +are Englishmen," he added, turning to the jury, "mind your privilege; give +not away your right." The court then adjourned to the following morning, +when the prisoners were brought to the bar, and the jury, who had been +locked up all night, were sent for. They were firm of purpose, and through +their foreman persisted in their verdict. + +"What is this to the purpose?" demanded the Recorder, "I will have a +verdict." Then addressing a juror, named Bushel, whom he had threatened on +the previous day, he said, "you are a factious fellow; I will set a mark +on you, and whilst I have anything to do in the city, I will have an eye +on you." + +Penn again protested against the jury being threatened in this manner, +upon which the Lord Mayor ordered that his mouth should be stopped, and +that the gaoler should bring fetters and chain him to the floor; but it +does not appear that this was done. The jury were again directed to retire +and bring in a different verdict, and they withdrew under protest, the +foreman saying, "We have given in our verdict, and all agreed to it; and +if we give in another, it will be a force upon us to save our lives." + +According to the narrative written by Penn and Mead, and quoted in +Forsyth's "History of Trial by Jury," this scene took place on Sunday +morning, and the court adjourned again to the following day, when, unless +they were supplied with food surreptitiously, they must have fasted since +Saturday. The foreman gave in their verdict in writing, as before, to +which they had severally subscribed their names. The clerk received it, +but was prevented from reading it by the Recorder, who desired him to ask +for a "positive verdict." + +"That is our verdict," said the foreman. "We have subscribed to it." + +"Then hearken to your verdict," said the clerk. "You say that William Penn +is not guilty in manner and form as he stands indicted; you say that +William Mead is not guilty in manner and form as he stands indicted; and +so say you all." + +The jury responded affirmatively, and their names were then called over, +and each juror was commanded to give his separate verdict, which they did +unanimously. + +"I am sorry, gentlemen," the Recorder then said, "you have followed your +own judgments and opinions, rather than the good and wholesome advice +which was given you. God keep my life out of your hands! But for this the +court fines you forty marks a man, and imprisonment till paid." + +Penn was about to leave the dock, but was prevented from doing so, upon +which he said, "I demand my liberty, being freed by the jury." + +"You are in for your fines," the Lord Mayor told the prisoners. + +"Fines, for what?" demanded Penn. + +"For contempt of court," replied the Lord Mayor. + +"I ask," exclaimed Penn, "if it be according to the fundamental laws of +England, that any Englishman should be fined or amerced but by the +judgment of his peers or jury; since it expressly contradicts the +fourteenth and twenty-ninth chapters of the Great Charter of England, +which say, 'No freeman ought to be amerced but by the oath of good and +lawful men of the vicinage.'" + +"Take him away," cried the Recorder. + +"They then," continues the narrative, "hauled the prisoners into the +bail-dock, and from thence sent them to Newgate, for non-payment of their +fines; and so were their jury. But the jury were afterwards discharged +upon an _habeas corpus_, returnable in the Common Pleas, where their +commitment was adjudged illegal." Even then, judges appear to have +remained unconvinced of the illegality of the practice, or stubborn in +their desire to enforce their own views or wishes upon juries; for the +question was not regarded as finally settled until the decision in the +Court of Common Pleas was clinched, in the same year, by a similar +judgment of the Court of King's Bench. + + + + +Barbarous Punishments. + +BY SIDNEY W. CLARKE. + + +That the world has become more merciful as it has grown older, is a truism +at once apparent to anyone who gives even a cursory glance at any of the +numerous works dealing with the criminal laws of the olden time. Still the +approach to the most excellent quality has been regretably and painfully +slow, and it is surely a stain on the boasted enlightenment of the +nineteenth century, that the century had run through nearly three-fourths +of its existence before the terrible and vindictive punishment of drawing +and quartering disappeared from our statute book. In most States the early +laws have been of a blood-thirsty and fear-inspiring nature, but what +excuse can be urged for the fact that until the fourth day of July, in the +year of Grace 1870, the punishment ordained by law for the crime of high +treason, was that the unfortunate offender should be drawn on a hurdle to +the place of execution, there to be hanged by the neck till he be dead; +that his head be severed from his body; that his body be divided into four +quarters; and that his head and quarters be at the disposal of the Crown. +In Blackstone's time the sentence was still more savage, or, as the great +Commentator puts it, "very solemn and terrible." It was that the offender +be drawn to the gallows, and not be carried or walk; "though usually," +says Blackstone, "by connivance, at length ripened by humanity into law, a +sledge or hurdle was allowed to preserve the offender from the extreme +torment of being dragged on the ground or pavement;" that he be hanged by +the neck and then cut down alive; that his entrails be taken out, and +burned before his eyes, while he was still alive; that his head be cut +off, his body be divided into four parts, and his head and quarters be at +the King's disposal. What our tender-hearted monarchs did with the +quivering pieces of flesh let the stones of Temple Bar, the City Gates, +and the Tower bear witness. Here are a couple of extracts from that +perennial fountain of information, the diary of Mr. Samuel Pepys. Under +date of October 13th, 1660, he writes, "I went out to Charing Cross to see +Major-General Harrison," one of the regicides, "hanged, drawn, and +quartered, which was done there, _he looking as cheerful as any man could +do in that condition_." Note the grim humour of the words in italics. "He +was presently cut down, and his head and heart shown to the people, at +which there was great shouts of joy." Again, on October 20th, in the same +year:--"This afternoon going through London and calling at Crowe's, the +upholsterer's, in St. Bartholomew's, I saw the limbs of some of our new +traytors set upon Aldersgate, which was a sad sight to see; and a bloody +week this and the last have been, there being ten hanged, drawn, and +quartered." + +It will be observed that the masculine gender is used in the foregoing +sentences for high treason; for, if the offender was a woman, the law with +a delicacy (!) one would hardly have expected, recognised that "the +decency due to the sex forbids the exposing and publicly mutilating their +bodies;" so a woman was simply to be drawn to the gallows, and there +burned alive. And these punishments for treason Sir Edward Coke attempted +to justify on Scriptural grounds, adding "it is punishment undoubtedly +just, for our liege lord the King is lord of every one of our members, +and they have severally conspired against him, and should each one +suffer." Evidently justice has not always spelt humanity. + +Another of the horrible punishments decreed by English law was that of +boiling to death, which in the reign of Henry VIII. was inflicted for +poisoning, and recalls the most cruel tortures of China and the Orient, +where slicing to death and impalement alive are or were common forms of +punishment. The awful fate of being boiled alive was specially devised for +the benefit of John Roose, a cook, who had been convicted of throwing +poison into a pot of broth intended for the family of the Bishop of +Rochester and for the poor of the Parish; in 1542, Margaret Davey suffered +the same lingering death at Smithfield. So fearful were our ancestors of +poison, that in Scotland, in 1601, Thomas Bellie, a burgess of Brechin, +and his son were banished for life by the High Court of Justiciary, for +the heinous offence of poisoning a couple of troublesome hens belonging to +a neighbour. Even the laws of Draco, said on account of their severity to +have been written not in ink but in blood, can scarcely compete with these +examples of British barbarity. + +Among the Romans strangulation, precipitation from a rocky height (a mode +of carrying out the death sentence still found amongst savage tribes), and +lashing to death were forms of punishment. Soldiers guilty of military +offences had to run the gauntlet. Upon a given signal all the soldiers of +the legion to which the offender belonged fell upon him with sticks and +stones, and generally killed him on the spot. If, however, he succeeded in +making his escape, he was thenceforth an exile from his native country. +Offending slaves were first scourged and then crucified. They were +compelled to carry the cross to the place of execution, and after being +suspended were left to perish by slow degrees. Crucifixion was abolished +throughout the Roman Empire by Constantine, out of reverence to the sacred +symbol. Other cruel punishments were burning alive, exposure to wild +animals, and condemnation to fight as gladiators in the arena for the +amusement of the citizens. The second of these modes of death, for death +was the invariable result, was the one usually meted out to the early +Christians--"If the Tiber overflows its banks; if there be a famine or +plague; if there be a cold, a dry, or a scorching season; if any public +calamity overtakes us; the universal cry of the people is--"To the lion +with the Christians _Christiani ad leonem_!" + +Parricide was punished in a strange manner. The criminal, after being +scourged, was tied or sewed up in a leather bag, with a dog, a cock, a +viper, and an ape to keep him company, and so cast into the sea. The +Egyptians punished the same offence by sticking the prisoner all over with +pointed reeds, and then throwing him upon a fire of burning thorns, where +he lay till he was consumed. + +With most nations the _Lex talionis_, or punishment of retaliation--an eye +for an eye, a limb for a limb--has found a place in the penal system. It +was not, indeed, always carried out to its logical conclusion, but rather +became the subject of many subtle distinctions. Among the Athenians, Solon +decreed that whoever put out the eye of a one-eyed person should for so +doing lose both his own. But what, it was asked, should be done where a +one-eyed man happened to put out one of his neighbour's eyes? Should he +lose his only eye by way of retaliation? If so, he would then be quite +blind, and would so suffer a greater injury than he had caused. The law of +the Jews and Egyptians compelled anyone, who without lawful excuse was +found with a deadly poison in his possession, to himself swallow the +poison. An instance of a kind of _lex talionis_ in our own country is +found in the reign of Edward I., when incendiaries were burnt to death. +Another example is that, from the reign of Henry VIII. to that of George +IV., to strike a blow and draw blood within the precincts of the King's +palace, entailed on the offender the loss of his right hand. Here are some +of the regulations prescribed by the statute 33 Henry VIII., chapter 12, +for the infliction of the punishment:-- + + "viii. And for the further declaration of the solemn and due + circumstance of the execution appertaining and of long time used and + accustomed, to and for such malicious strikings, by reason whereof + blood is, hath been, or hereafter shall be shed against the King's + peace. It is therefore enacted by the authority aforesaid, that the + Sergeant or Chief Surgeon for the time being, or his deputy of the + King's household, his heirs and successors, shall be ready at the time + and place of execution, as shall be appointed as is aforesaid, to sear + the stump when the hand is stricken off. + + "ix. And the Sergeant of the Pantry shall be also then and there ready + to give bread to the party that shall have his hand so stricken off. + + "x. And the Sergeant of the Cellar shall also be then and there ready + with a pot of red wine to give the same party drink after his hand is + so stricken off and the stump seared. + + "xi. And the Sergeant of the Ewry shall also be then and there ready + with cloths sufficient for the Surgeon to occupy about the same + execution. + + "xii. And the Yeoman of the Chandry shall also be then and there, and + have in readiness seared cloths sufficient for the Surgeon to occupy + about the same execution. + + "xiii. And the Master Cook shall be also then and there ready, and + shall bring with him a dressing-knife, and shall deliver the same + knife at the place of execution to the Sergeant of the Larder, who + shall be also then and there ready, and hold upright the + dressing-knife till execution be done. + + "xiv. And the Sergeant of the Poultry shall be also then and there + ready with a cock in his hand, ready for the Surgeon to wrap about the + same stump, when the hand shall be so stricken off. + + "xv. And the Yeoman of the Scullery to be also then and there ready, + and prepare and make at the place of execution a fire of coals, and + there to make ready searing-irons against the said Surgeon or his + deputy shall occupy the same. + + "xvi. And the Sergeant or Chief Ferror shall be also then and there + ready, and bring with him the searing-irons, and deliver the same to + the same Sergeant or Chief Surgeon or to his deputy when they be hot. + + "xvii. And the Groom of the Salcery shall be also then and there ready + with vinegar and cold water, and give attendance upon the said Surgeon + or his deputy until the same execution be done. + + "xviii. And the Sergeant of the Woodyard shall bring to the said place + of execution a block, with a betil, a staple, and cords to bind the + said hand upon the block while execution is in doing." + +In addition to losing his hand, the unfortunate offender was imprisoned +for life. It was not until 1829 that this punishment was abolished, after +having been in existence for a period of 287 years. + +A curious mode of punishment, intended to make its victim the object of +popular ridicule, was in vogue in the ancient German Empire, where persons +who endeavoured to create tumults and to disturb the public tranquility +were condemned to carry a dog upon their shoulders from one large town to +another. + +The penal laws of France were every wit as inhuman as our own--burning +alive, breaking on the wheel, hanging, beheading, and quartering were +common forms of punishment. Awful atrocities were committed on living +victims, such as tearing off the flesh with red-hot pincers, pouring +molten lead and brimstone into the wounds, and cutting out the tongue. The +following is the sentence passed upon Ravaillac, the assassin of Henry +IV., in 1610:--He was first to be privily tortured and then carried to +the place of execution. There the flesh was to be torn with red-hot +pincers from his breasts, his arms and thighs, and the calves of his legs; +his right hand, holding the knife wherewith he committed his crime, was to +be scorched and burned with flaming brimstone; on the places where the +flesh had been torn off a mixture of melted lead, boiling oil, scalding +pitch, wax, and brimstone was to be poured; after this he was to be torn +in pieces by four horses, and his limbs and body burned to ashes and +dispersed in the air. His goods and chattels were confiscated; the house +in which he was born was pulled down; his father and mother were banished, +and his other relatives commanded to change the name of Ravaillac for some +other. This sentence was not, surely, a vindication of outraged justice, +but rather a purile and barbarous legal revenge. + +To return to the laws of our own country. Mutilation of one sort or +another was long a favourite mode of punishment; pulling out the tongue +for slander, cutting off the nose for adultery, emasculation for +counterfeiting money, and so on. In Foxe's "Book of Martyrs" there is an +account of a miracle which was worked on the person of a mutilated +criminal. A Bedfordshire man was convicted of theft, and for his crime +his eyes were pulled out and other abominable mutilations were inflicted +on him. The sufferer repaired to the shrine of St. Thomas at Canterbury, +where after devout and steadfast prayer the parts he had lost were, so we +are told, miraculously restored. Anyone who fought with weapons in a +church had an ear cut off, or if he had already lost both his ears was +branded in the cheek with the letter F. + +By an Act passed in the reign of Queen Elizabeth, the punishment for +forgery was that the offender should stand in the pillory and have his +ears cut off by the common hangman, his nostrils slit up and seared, and +then suffer imprisonment for life. In 1731 Joseph Cook, aged 70 years, +underwent this punishment, the mutilation taking place while he stood in +the pillory at Charing Cross. + +The Coventry Act (22-23 Charles II., chapter 1.) was passed in consequence +of Sir John Coventry having been assaulted in the street and his nose +slit, out of revenge as was supposed. It enacted that if any person should +of malice, aforethought, and by lying in wait, cut out or disable the +tongue, put out an eye, slit the nose, or cut off or disable any limb or +member of any other person, with intent to maim or to disfigure him, such +person, his councillors, aiders, and abettors, should be guilty of felony +without benefit of clergy, which implied the punishment of death. This Act +was not repealed until 1828, and resulted in at least one curious case. In +1772, one Coke and a labourer named Woodburn were indicted under the +Act--Coke for hiring and abetting Woodburn, and Woodburn for the actual +offence of slitting the nose of one Crispe, who was Coke's brother-in-law. +The intention of the accused was to murder Crispe, and they left him for +dead, having terribly hacked and disfigured him with a hedge-bill, but he +recovered. An attempt to murder was not then a felony, but under the +Coventry Act to disfigure with an intent to disfigure was; and the accused +were indicted for the latter offence. Coke, in the course of his defence, +raised the point that the attack on Crispe was made with intent to murder +him and not with intent to disfigure, therefore, he contended, the offence +was not within the statute under which he was indicted. But the court held +that if a man attacked another intending to murder him, with such an +instrument as a hedge-bill, which could not but endanger a disfiguring of +the victim, and in such attack happened not to kill but only to +disfigure, he might be indicted for disfiguring. The jury found the +prisoners guilty, and they were condemned and duly executed. + +The laws for the protection of trade decreed many cruel punishments. Thus, +in the reign of Elizabeth, an Act passed for the encouragement of the +woollen industry prescribed that the penalty for taking live sheep out of +the country should be forfeiture of goods, imprisonment for a year, and +that at the end of the year the left hand of the prisoner should be cut +off in a public market, and be there nailed up in the most public place. A +second offence was punishable with death. By statute 21 James I. chapter +19, anyone unfortunate enough to become a bankrupt was nailed by one ear +to the pillory for two hours, and then had the ear cut off. Under the +Romans a bankrupt was treated still more unmercifully, for at the option +of his creditors he was either cut to pieces or sold to foreigners beyond +the Tiber. + +A longstanding disgrace to the intelligence and humanity of our countrymen +was the fact that in former times burning alive was the inevitable fate of +poor wretches convicted of witchcraft, the penal laws against which were +not repeated until 1736. So late as 1712, five so called witches were +hung at Northampton, and in 1716 Mrs. Hicks, and her daughter, aged nine, +were condemned to death at Huntingdon for selling their souls to the +devil. Even children of tender years were not spared, but with their +elders alike fell victims to our law's barbarity; there are many recorded +instances of children under ten years of age being executed. In Scotland +the last execution for witchcraft took place in 1722. + +Space will not permit any attempt to run through the whole gamut of legal +iniquities; at most we can only attempt a very incomplete catalogue of the +inhumanities at one time or another incident to our penal codes, and with +a final horror we must bring this article to an end. The punishment with +which we are now about to deal, that of pressing to death, _peine forte et +dure_ as it was called, is perhaps the most noteable example of the former +barbarity of our law, since it was inflicted before trial on innocent and +guilty alike, who refused to plead "Guilty" or "Not Guilty" to an +indictment for felony. What this punishment was, which was first +instituted in 1406, can best be told by giving the form of the judgment of +the court against the person who refused to plead:--That the prisoner +shall be remanded to the place from whence he came, and put in some low, +dark room, and that he shall lie without any litter or other thing under +him, and without any manner of covering; that one arm shall be drawn to +one quarter of the room with a cord and the other to another, and that his +feet shall be used in the same manner; and that as many weights shall be +laid upon him as he can bear, and more; that he shall have three morsels +of barley bread a day, and that he shall have the water next the prison, +so that it be not current; and that he shall not eat the same day on which +he drinks, nor drink the same day on which he eats; and that he shall +continue so till he die or answer. + +_Peine forte et dure_ was not abolished till 1772, and was frequently +undergone by accused persons in order to preserve their estates from being +forfeited to the Crown, which would have been the case if they had stood +their trial and been found guilty. The year 1741 is probably the last date +on which the punishment was inflicted. In 1721, two men, Thomas Cross and +Thomas Spigot, were ordered to be pressed to death at the Old Bailey. +Cross gave in on seeing the preparations made for his torture, but Spigot +was made of sterner stuff. In the "Annals of Newgate" is a description of +his sufferings:--"The chaplain found him lying in the vault upon the bare +ground with 350 pounds weight upon his breast, and then prayed by him, and +at several times asked him why he would hazard his soul by such obstinate +kind of self-murder. But all the answer that he made was--'Pray for me, +pray for me!' He sometimes lay silent under the pressure, as if insensible +to pain, and then again would fetch his breath very quick and short. +Several times he complained that they had laid a cruel weight upon his +face, though it was covered with nothing but a thin cloth, which was +afterwards removed and laid more light and hollow; yet he still complained +of the prodigious weight upon his face, which might be caused by the blood +being forced up thither, and pressing the veins as violently as if the +force had been externally upon his face. When he had remained for +half-an-hour under this load, and 50 pounds weight more laid on, being in +all 400 pounds, he told those who attended him he would plead. The weights +were at once taken off, the cords cut asunder; he was raised by two men, +some brandy was put into his mouth to revive him, and he was carried to +take his trial." In 1735, a man, who pretended to be dumb at the Sussex +Assizes, was sent to Horsham Gaol to be pressed to death unless he would +plead. He endured in agony a weight of 350 pounds, and then the +executioner, who weighed over 16 stones, laid himself upon the board upon +which the weights were placed, and killed the wretched man instantly. + + + + +Trials of Animals. + +BY THOMAS FROST. + + +One of the most singular features of the jurisprudence of the middle ages, +and one which was retained in the French code down to nearly the middle of +the last century, was the indictment of domestic animals for injuries +inflicted on mankind. The records of the criminal tribunals of France +disclose ninety-two such judicial processes between 1120 and 1741, when +the last of these grotesque trials took place in Poitou. The practice +seems to have been based on the Mosaic law, it being there ordered that, +"if an ox gore a man or a woman that they die, then the ox shall be +stoned, and his flesh shall not be eaten." (Exodus, c. xxi., v. 28.) Oxen +and pigs were the animals that most frequently were the subjects of these +strange proceedings, the indictment against the former being for goring +persons, while the latter suffered for killing and sometimes devouring +very young children. + +The earliest instance of which any particulars can be gathered occurred +in 1314, when, according to M. Carlier, who relates the story in his +history of the Duchy of Valois, a bull escaped from a farm-yard in the +village of Moisy, and gored a man so severely that death ensued. The Count +of Valois, being informed of the fatility, directed that the bull should +be captured, and formally prosecuted for causing the man's death. This was +done, and evidence was given by persons who had seen the man attacked and +killed. The bull was thereupon sentenced to suffer death, which was +inflicted by strangulation, after which the carcase was suspended from a +tree by the hind legs. But the affair did not end thus, for the sentence +was appealed against, probably by the owner of the bull, on the ground +that the retainers of the Count of Valois had no legal authority to +execute the sentence. This plea was debated at great length, and the +provincial parliament eventually decided that, though the sentence was a +just one, the Count of Valois had no justiciary authority in the district +of Moisy. + +Next in the order of time comes the trial at Falaise of a sow which had +torn the face and arm of a child, from the effects of which injuries it +died. The sow was condemned to be mutilated in the head and one fore leg, +and afterwards to be strangled, which sentence was executed in the public +square of the town. This was in 1386. Three years later, a horse was +condemned to death at Dijon for having killed a man. In 1403, Simon de +Baudemont, lieutenant of Meulan; Jean, lord of Maintenon; and the bailiff +of Mantes and Meulan, signed an attestation of the expenses incurred in +the prosecution and execution of a sow that had killed and partially eaten +a child. The following is a copy of the document, to which it may be added +that the story of the trial and execution may be found in the "Curiosités +Judiciaires et Historiques du Moyen Age" of M. Aguel:--"Item, for expenses +within the gaol, 6 sols. Item, to the executioner, who came from Paris to +Meulan to put the sentence in execution, by command of our Lord the +Bailiff and of the King's Attorney, 54 sols. Item, for the carriage that +conveyed her to execution, 6 sols. Item, for ropes to tie and haul her up, +2 sols, 8 deniers. Item, for gloves, 12 deniers; amounting in the whole to +69 sols, 8 deniers." In connection with the first item of this curious +document, it may be observed that, in a receipt delivered five years later +by a notary of Pont de l'Arche to the gaoler of the prison of that town, +the same amount is allowed for the daily food of a pig, imprisoned on the +charge of killing a child, as for a man in the same prison. The last item, +the gloves, is supposed by M. Aguel to be a customary allowance to the +executioner. + +In 1457, a sow and her six young pigs were tried at Lavegny, on the charge +of having killed and partially eaten a child. The sow was convicted, and +condemned to death; but the little ones were acquitted on the ground of +their tender years or months, the bad example of their mother, and the +absence of direct evidence of their having partaken of the unnatural +feast. In 1494, sentence of death was pronounced on a pig by the Mayor of +Laon for having mutilated and destroyed an infant in its cradle, full +particulars of which case were given in the "Annuaire du Departement de +l'Aisne" for 1812. The act of condemnation, as there given, concludes as +follows:--"We, in detestation and horror of this crime, and in order to +make an example and satisfy justice, have declared, judged, sentenced, +pronounced, and appointed that the said hog, being detained a prisoner, +and confined in the said abbey, shall be, by the executioner, strangled +and hanged on a gibbet, near and adjoining the gallows in the +jurisdiction of the said monks, being near their copyhold of Avin. In +witness of which we have sealed this present with our seal." This document +was sealed with red wax, and endorsed:--"Sentence on a hog, executed by +justice, brought into the copyhold of Clermont, and strangled on a gibbet +at Avin." + +Three years later, a sow was condemned to be beaten to death for having +mutilated the face of a child of the village of Charonne. The act of +condemnation in this case directed further that the flesh of the sow +should be given to the dogs of the village, and that the owner of the sow +and his wife should make a pilgrimage to the Church of Our Lady at +Pontoise, and bring on their return a certificate that this injunction had +been duly complied with. In 1499, a bull was strangled for having killed a +boy in the lordship of Cauroy, which belonged to the abbey of Beaufiré. + +Lionnois gives, in his history of Nancy, a full report of the proceedings +on the delivery of a condemned pig to the executioner of that city in +1572. He mentions, among other details, that the animal, secured by a +cord, was led to a cross near the cemetery; that from the most remote +period the justice of the lord, the abbot of Moyen Moutier, was accustomed +to deliver to the provost, or marshal of St. Diez, near to this cross, all +condemned criminals, that execution might ensue; and that, the said pig +being a brute beast, the mayor and the justice held a conference at that +place, and left the said pig tied with a cord, without prejudice to the +judicial rights of the lord. + +Judicial proceedings against the lower animals were not confined to +France, for the list of such cases compiled by M. Berriat St. Prix, and +published in the "Memoires de la Societé des Antiquaires" for 1829, +mentions one tried at Lausanne in 1364, another at the same town in 1451, +a third at Basle in 1474, another at Lausanne in 1479, and a fifth at the +same place in 1554. Concerning the first of these Swiss trials, Ruchat +states, in his history of the Protestant reformation in Switzerland, that +the victim was a pig that had killed a child in the village of Chattens, +situated among the Jorat hills. It was cited to appear in the Bishop's +Court at Lausanne, convicted of murder, and sentenced to death--the +executioner being a pork butcher. + +The Basle case was a very singular one. A farm-yard cock was tried on the +absurd charge of having laid an egg. It was contended in support of the +prosecution that eggs laid by cocks were of inestimable value for use in +certain magical preparations; that a sorcerer would rather possess a +cock's egg than the philosopher's stone; and that Satan employed witches +to hatch such eggs, from which proceeded winged serpents most dangerous to +mankind. On behalf of the gallinaceous prisoner, the facts of the case +were admitted, but his advocate submitted that no evil animus had been +proved against his client, and that no injury to man or beast had +resulted. Besides, the laying of the egg was an involuntary act, and as +such not punishable by law. If it was intended to impute the crime of +sorcery to his client, he was entitled to an acquittal; for there was no +instance on record of Satan having made a compact with one of the brute +creation. In reply, the public prosecutor stated that, though the Evil One +did not make compacts with brutes, he sometimes entered into them; and +though the swine possessed by devils, as related by the Evangelists, were +involuntary agents, yet they, nevertheless, were punished by being caused +to run down a steep decline into the Lake of Galilee, where they were +drowned. The poor cock was convicted, and condemned to death, not as a +cock, however, but as a sorcerer, or perhaps a devil, in the form of a +cock, on which finding it was, with the egg attributed to it, burned at a +stake, with all the form and solemnity of a judicial execution. + +As the lower animals were amenable to the law in Switzerland in those dark +ages, so, in certain circumstances, they could be put into the witness +box. If a house was broken into between sunset and sunrise, and the +occupier killed the intruder, the act was regarded as justifiable +homicide. But it was thought right to provide by law against the case of a +man, living alone, who might invite a person whom he wished to kill to +spend the evening with him, and having slain him, might assert that he +committed the act in self-defence, or to protect his property, the dead +man having been a burglar. Therefore, when a man was killed in such +circumstances, the occupier of the house was required to produce some +domestic animal that was an inmate of the house, and had witnessed the +tragedy, and to declare his innocence on oath in the presence of such +animal. If the brute witness did not contradict him, he was acquitted; the +law taking it for granted that God, rather than allow a murderer to go +unpunished, would intervene by causing a miraculous manifestation by the +mouth of a dumb witness. + +Even more strange than the trials of oxen, pigs, etc., for offences +against mankind, were the legal proceedings often taken in the middle ages +against noxious insects and the smaller quadrupeds, such as rats. The +"Memoires de la Societé Royale Academique de Savoie" contain a very +curious account of the proceedings instituted in 1445 and 1487 against +certain beetles that had committed great ravages in the vineyards of St. +Julien. Advocates were named on behalf of the vine-growers and the beetles +respectively; but, by a singular coincidence, the insects disappeared when +cited to answer for the mischief they had done, and the proceedings were +in consequence abandoned. That was in 1445. In 1487, however, they +re-appeared, and a complaint was thereupon addressed to the vicar-general +of the Bishop of Maurienne, who named a judge, and also an advocate to +represent the beetles. Counsel having been heard on both sides, the judge +suggested that the vine-growers should cede to the defendants certain +land, where they could live without encroaching on the vineyards. The +plaintiffs agreed to this compromise, with the proviso that, in default +of the defendants accepting the terms offered them, the judge would order +that the vineyards should be respected by the beetles under certain +penalties. The advocate for the beetles demanded time for consideration, +and on the resumption of the proceedings stated that he could not accept, +on behalf of his clients, the suggestion of the court, as the land +proposed to be given up to them was barren, and afforded nothing upon +which they could subsist. The court then appointed assessors to survey the +land in question, and on their report that it was well wooded and provided +with herbage, the conveyance was ordered to be engrossed in due form and +executed. The matter was then regarded by the plaintiffs as settled; but +the beetles discovered, or their advocate discovered for them, that a +quarry of an ochreous earth, used as a pigment, had formerly been worked +on the land conveyed to the insects, and though it had long since been +worked out, some person possessed an ancient right of way to it, the +exercise of which would be extremely prejudicial to them. Consequently, +the agreement was held to be vitiated, and the legal proceedings had to be +recommenced _de novo_. How they eventually terminated cannot be told, +owing to the mutilation of the documents relating to the proceedings +subsequent to 1487. + +Nearly a century later, legal proceedings were commenced by the +inhabitants of a village in the diocese of Autun against the rats by which +their houses and barns were infested; the trial being famous in the annals +of French jurisprudence as that in which Chassanee, the celebrated +jurisconsult, first achieved distinction. The rats not appearing on the +first citation, Chassanee, who was retained for the defence, argued that +the summons was of too local a character, and that, as all the rats in the +diocese of Autun were interested in the case, they should be summoned +throughout the diocese. This plea being admitted, the curé of every parish +in the diocese was instructed to summon all the rats within its limits to +attend on a day named in the summons. The day having arrived, and the rats +failing to appear, Chassanee said that, as all his clients were summoned, +including old and young, sick and healthy, great preparations had to be +made, and certain necessary arrangements effected, and he had to ask, +therefore, for an extension of time. This also being granted, another day +was appointed, but again not a single rat put in an appearance. Chassanee +then made an objection to the legality of the summons. A summons from that +court, he said, implied full protection to the parties summoned, both on +their way to it and on their return to their homes; and his clients, the +rats, though most anxious to appear in obedience to the court, did not +dare to leave their homes to come to Autun, on account of the number of +evil-disposed cats kept by the plaintiffs. If the latter would enter into +bonds, under heavy pecuniary penalties, that their cats should not molest +his clients, the summons would be immediately obeyed. The court +acknowledged the validity of this plea, but the plaintiffs declined to be +bound for the good behaviour of their cats. The further hearing of the +case was, therefore, adjourned _sine die_, and thus Chassanee gained his +cause. Full particulars of the proceedings are given in a Latin work, +written by him, and published in 1588. + + + + +Devices of the Sixteenth Century Debtors. + +BY JAMES C. MACDONALD, F.S.A., SCOT. + + +In the year 1531, a certain John Scott, residenter in the good town of +Edinburgh, was financially in a condition of chronic decrepitude. His +household goods were rapidly going to the hammer, and one creditor, bolder +than his fellows, decided to attack the impecunious personality of the +common debtor. Writs from court and messengers of the law were severally +set in motion; and on the earliest possible day one of those myrmidons +served upon the debtor personally, a writ bearing the terrible title of +"Letters of IV Forms." The "coinless" John was therein warned that if he +failed forthwith to pay or satisfy the lawful debt, for which decreet has +gone out, he would (unless he went to prison in a peaceful way) be +declared a rebel against the King's Majesty. + +Now John reasoned with himself that payment he could not make; outlawry he +rather feared; and _squalor carceris_ he could not endure. What was to be +done? He had heard of the horns of the Hebrew altars: how that personal +safety resulted from any manual attachment thereto. Was there some such +boon in bonny Scotland? There was Holyrood, with its sanctified abbey. It +was near; any port in such a storm. Down the Canongate, and straight to +the sanctuary he ran--all to the manifest loss, injury, and damage of his +creditors who followed, having got wind of this unique _hegira_ from the +red-nosed city guard. In vain the creditors pleaded; equally in vain were +their threats. The canny Scot was warranted safe and skaithless against +"all mortal." + +Annoyed at his debtor's immunity from arrest, chagrined that any money +John possessed had now been further dissipated in the Abbey admission dues +to its protection giving portals--each creditor turned sadly to his "buiks +of Compts" and superscribed over against John Scott's name the expressive +legend "bad debt." And this John Scott became the forerunner, _de facto_, +of a long line of "distressed" persons. Nay more, he secured an +immortality as lasting as that of the sovereign whose solemnly sounding +"Letters of IV Forms," he spurned and left unanswered. + +A generation later, and another _new_ way of paying old debts is placed on +record. To balance international honours it is of Anglican origin. +Scoggan, the jester of the Elizabethan court, falls into financial +distress. He borrows Ł500 from the Queen--_mirabile dictu_. Only a fool +would have tried such a thing. It was put down as a "short loan," but it +soon became clear to the royal lender that its longevity would outlast her +reign. To all demands the clownish borrower smilingly cried "long live the +queen," until at last his existence as court fool was in danger of being +ended. But he would rather die than be evicted; and die he did. He became, +theatrically speaking, defunct. + +The _late_ Scoggan was accordingly borne, to solemn music, past the royal +garden; and the queen, seeing the mournful show--and knowing nought of its +hollowness--asked whose it was. "Scoggan, Your Majesty," was the reply. +"Poor fellow," she exclaimed, "the Ł500 he owed me I now freely forgive." +Whereupon the "defunct" sat up and declared that the royal generosity had +given him a new lease of life. "Thou rogue," said the queen, "thou art +more rogue than fool. Thou hast improved upon the plan of that John Scott, +who, in the reign of my late cousin of Scotland, as Sir James Melvil tells +me, got rid of the oldest debt and the longest loan." + + + + +Laws Relating to the Gipsies. + +BY WILLIAM E. A. AXON, F.R.S.L. + + +Early in the fifteenth century the gipsies made their appearance in +Europe, and as strangers were not favourably regarded in those days the +advent of these dark-skinned people, speaking a language of their own, +dressing in a picturesque, but uncommon costume, and having their own +rulers, and their own code of morals, and owning no allegiance to the laws +of the land in which they sojourned, naturally attracted attention. At +first some credence was given to their high-sounding pretensions, and the +dukes, counts, and lords of Lesser Egypt received safe conducts and +protection under the idea that they were engaged in religious pilgrimages. +But the seal of the Emperor Sigismund would not protect them when the term +of their pretended pilgrimage had expired, nor would the manners and +customs of the gipsies substantiate any special claim to sanctity or +religious fervour. Even the ages when the divorce was most marked between +religion and morals would be staggered by the thefts, and worse outrages +that were laid to their charge. Sigismund's safe conducts are said to have +been given not as Emperor, but as King of Hungary, and some of the gipsies +were early employed as ironworkers in the realm of St. Stephen. In 1496 +King Ladislaus gave a charter of protection to Thomas Polgar and his +twenty five tents of gipsies because they had made musket bullets and +other military stores for Bishop Sigismund at Fünfkirchen, but whatever +consideration may have been shewn to them in the beginning, they speedily +became objects of suspicion and dislike. There is not a country in Europe +which has not legislated against them or endeavoured to exile them by +administrative acts. Their expulsion from Spain was decreed in 1492, from +France in 1562, and from various Italian states about the same time. +Denmark, Sweden, and the Netherlands have also pronounced against them. +The Diet of Augsburg in 1500, ordered their expulsion from Germany on the +ground that they were spies of Turkey seeking to betray the Christians. +This edict, though several times repeated, was non-effective. + +In Hungary and Transylvania the authorities, hopeless of getting rid of +the troublesome immigrants, took strong measures to bring them into line +with the rest of the population. They were prohibited from using the +Romany tongue, from retaining their gipsy surnames, from wandering about +the country, from eating carrion, and from dealing in horses. Those fit +for military service were to be taken into the army, and the rest were to +live and dress and deport themselves in the same manner as the peasantry +of the country. These regulations were not wholly effective, but the +result of the efforts put forward by Maria Theresa, and her successors may +be seen in the sedentary gipsies of the Austro-Hungarian Empire. At times +they have been subjected to fierce persecution. In 1782, a dreadful +accusation was brought against the Hungarian Romanis, when more than a +hundred of them were accused of murder and cannibalism. The gang were said +to have lived by highway robbery and murder, and to have cooked and eaten +the bodies of their victims. At Frauenmark four women were beheaded, six +men were hanged, two were broken on the wheel, and one was quartered +alive. Altogether forty-five were executed and many more were imprisoned. +How much of this was suspicion substantiated by torture? + +The gipsies came frequently in contact with the myrmidons of the law. "As +soon as the officer seizes or forces away the culprit," says Grellmann, +"he is surrounded by a swarm of his comrades who take unspeakable pains to +procure the release of the prisoner.... When it comes to the infliction of +punishment, and the malefactor receives a good number of lashes well laid +on, in the public market place, a universal lamentation commences among +the vile crew; each stretches his throat to cry over the agony his dear +associate is constrained to suffer. This is oftener the fate of the women +than of the men; for as the maintenance of the family depends most upon +them, they more frequently go out for plunder." It is a noteworthy fact +that Grellmann writing in 1783, has not a word of condemnation of the +barbarous practice of flogging women. + +In England as elsewhere the earliest of these romantic people were +welcomed. In 1519, the Earl of Surrey entertained "Gypsions" at Tendring +Hall, Suffolk, and gave them a safe-conduct. Still earlier in 1505, +Anthony Gaginus, Earl of Little Egypt, had a letter of recommendation +from James IV. of Scotland to the King of Denmark. James V. bestowed a +charter upon James Faa, Lord and Earl of Little Egypt, by which he was +privileged to execute justice upon his followers, much in the same way as +the great barons were authorised to deal with their vassals. But they soon +fell out of favour. In England, in the twenty-second year of Henry VIII. +an act of parliament was passed which sets forth that there are certain +outlandish people, who not profess any craft, or trade, whereby to +maintain themselves, but go about in great numbers from place to place, +using craft and subtlety to impose on people, making them believe that +they understood the art of foretelling to men and women their good or ill +fortune, by palmistry, whereby they frequently defraud people of their +money, likewise are guilty of thefts and highway robberies; it is ordered +that the said vagrants, commonly called Egyptians, in case they remain +sixteen days in the kingdom, shall forfeit their goods and chattels to the +king and be further liable to imprisonment. In 1537, Cromwell writes to +the Lord President of the Marches of Wales, that the "Gipcyans" had +promised to leave the kingdom in return for a general pardon for their +previous offences, and exhorts the authorities to see that their +deportation is effected. Many were sent to Norway, but the effort to +extirpate them from the kingdom entirely failed.[10] By an act of 1554, a +penalty of Ł40 was to be inflicted upon any one knowingly importing them. +Those gipsies, following "their old accustomed devlishe and noughty +practises," were to be treated as felons, but exception was made in favour +of such as placed themselves in the service of some "honest and able +inhabitant." Many were executed, but the remnant survived and managed to +hold a yearly meeting at the Peak Cavern or Kelbrook, near Blackheath. +Still sterner was the law passed in 1562-3, which made it felony for any +one born within the kingdom to join the fellowship of vagabonds calling +themselves Egyptians. The previous acts had referred to the gipsies as an +outlandish people, but now the native born were brought equally within the +meshes of this sanguinary law. "Throughout the reign of Elizabeth," as +Borrow remarks, "there was a terrible persecution of the gipsy race; far +less, however, on account of the crimes which were actually committed, +than from a suspicion which was entertained that they harboured amidst +their companies priests and emissaries of Rome." The harrying of the +missionary priests was in part dictated by the spirit of religious +persecution, but in a still greater degree by the conviction that they +were political emissaries, aiming at the subversion of the kingdom. The +priests on the English mission had often to disguise themselves, and at +times may have assumed the garb of wandering beggars, but they are not +likely to have consorted with the Romans, whose language would be strange +to them, and whose heathenish indifference to all dogmas, rites, and +ceremonies, would be specially distasteful to zealous Catholics. + +After "the spacious times" of great Elizabeth, the gipsies had a rest from +special oppression, though they were of course still in jeopardy from the +harsh laws as to vagrancy and those minor crimes, that are their +characteristic failings. Romany girls were flogged for filching and +fortune-telling, and Romany men were hanged for horse-stealing. They were +looked upon with suspicion, and it was easy enough to raise prejudice +against them. This was shewn in the notorious case of Elizabeth Canning. +She was a girl of eighteen, employed as a domestic servant at +Aldermanbury, and in 1753, disappeared for four weeks. On her return she +asserted that she had been abducted and detained in a loft by gipsies, who +gave her only bread and water to eat. Their aim she declared was to induce +her to adopt an immoral life. Mrs. Wells, Mary Squires, George Squires, +Virtue Hall, Fortune and Judith Natus, were arrested, and Wells and +Squires were committed for trial. The proceedings, partly before Henry +Fielding the novelist, were conducted with a laxity that seems now to be +almost inconceivable. At the Old Bailey trial there was a remarkable +conflict of evidence, but in the end Mrs. Wells was condemned to be burned +in the hand, and Mary Squires to be hanged. Sir Christopher Gascoyne then +Lord Mayor, was satisfied that there had been a miscarriage of justice and +made enquiries, a respite was obtained and finally the law officers of the +crown recommended the grant of a free pardon to Squires. The natural +sequel was the prosecution of Canning for perjury. Fortune and Judith +Natus now swore that they had slept each night in the loft where Canning +declared she had been imprisoned, but it was very natural that people +should ask why they had not given this important evidence at the previous +trial. Mary Squires' alibi was sworn to by thirty-eight witnesses who had +seen her in Dorsetshire, and was, to some extent, invalidated by +twenty-seven who swore that she was in Middlesex at the time. As she was +too remarkable for her ugliness to be easily mistaken, there must have +been some very "hard swearing." Canning was convicted of perjury and +transported, but the secret of her absence from New Year's Day, 1553, +until the 29th of January was never divulged. The case excited great +interest, and the controversy divided the whole of the busy, idle "town," +into "Canningites" and "Gipsyites." + +The Tudor law (22 Henry VIII., c. 10) was repealed as "of excessive +severity" in 1783 (23 George III., c. 51). The later legislation provides +that persons wandering in the habit and form of Egyptians, and pretending +to palmistry and fortune-telling, are to be deemed rogues and vagabonds +(17 Geo. II., c. 5., 3 Geo. IV., c. xl.), and is liable to three months' +imprisonment (5 Geo. IV., c. lxxxiii.), and encamping on a turnpike road +involved a penalty of forty shillings (3 Geo. IV., c. cxxvi., 5 and 6 +William IV., c. 50). Some of the older enactments remained on the statute +book, though not enforced, until the passing of the statute law Revision +Act of 1863, by which many obsolete parliamentary enactments were swept +away. + +By the famous Poynings Act, English laws were declared applicable to +Ireland. The gipsies were never common in the Isle of Saints, but by a +special act they were, in 1634, declared to be rogues and vagabonds (10 +and 11 Car. I., c. 4). + +There are acts of the Scottish Parliament as early as 1449, directed +against "sorners, overliers, and masterful beggars with horse, hounds, or +other goods," and that this would well describe the earlier gangs of +gipsies is undeniable, but whether they were Romanis or Scots is a matter +of controversy not easily decided in the absence of more definite +evidence. A tradition of the Maclellans of Bombie says that the crest of +the family was assumed on the slaying of the chief of a band of saracens +or gipsies from Ireland. The conqueror received the barony of Bombie from +the king as a reward. Having thus restored the fortunes of the family, the +young laird of Bombie took for his crest a moor's head with the motto +"Think on." If this legend was evidence, which it is not, there were gipsy +marauders in Galloway in the middle of the fifteenth century. But in 1505, +we have the entry of a gift by the King of Scotland of seven pounds to the +"Egiptianis." In the same year there is a letter already named, in which +"Anthonius Gagino," or Gawino, is recommended to the King of Denmark. In +1527, Eken Jacks, master of a band of gipsies, was made answerable for a +robbery from a house at Aberdeen. In 1539, a similar charge was brought, +but not proved, against certain friends and servants to "Earl George, +callet of Egipt." This chieftain was one of the celebrated Faa tribe. In +1540, George and John Faa were ordered by the bailies of Aberdeen to +remove their company and goods from the town. This is the first action of +a Scottish authority against the gipsies as gipsies. But, by a charter +dated four days before the municipal decree, James V. confirms to "our +lovit Johnne Faw, lord and erle of Little Egipt," full power to execute +justice over his tribe, some of whom had rebelled and forsaken his +jurisdiction. In 1541, an act of the Lords of Council and Session decreed +the banishment of the gipsies from the realm within thirty days, because +of "the gret theftes and scathis" done by them. Some of them passed over +the border, but not for long, and in 1553 the Faas again had a charter +upholding their rights of lordship against Lalow and other rebels of their +company. And in the next year their is a pardon to four Faas for the +"slachter of umquhile Ninian Smaill." + +The gipsies had the favour of the Roslyn family, and it is said that Sir +William Sinclair rescued "ane Egiptian" from the gibbet in the Burgh Muir, +"ready to be strangled," and that in gratitude the tribe used to go to +Roslyn yearly and act several plays in May and June. In 1573, and again in +1576, the gipsies were ordered to leave the realm, but the decree was +never put in force. When Lady Foulis was tried in 1590, one charge was +that she had sent a servant to the gipsies for advice as to poison to be +administered to "the young laird of Fowles and the young Lady Balnagoune." +When James VI. held a High Court of Justicary at Holyrood in 1587, for the +reformation of enormities, the offenders to be dealt with included "the +wicked and counterfeit thieves and limmers calling themselves Egyptians." + +There were several enactments of the Scottish Parliament in 1574, 1579, +1592, and 1597. These were all aimed at the nomadic habits of the race, +but the settled gipsies were left unmolested. "Strong beggars and their +children" were to be employed in common work for their whole life, and it +is said that salt masters and coal masters thus made serfs of many. In +1603, there was a special "Act anent the Egiptians," which declared it +"lesome" for anyone to put to death any gipsy, man, woman, or child, +remaining in the country after a certain date. Moses Faa appealed against +it as a loyal subject, and found a security in David, Earl of Crawford. +This was in 1609, but in 1611 four of the Faas were tried at Edinburgh +under the acts against the gipsies, and were convicted and executed on the +same day. Constables and justices of the peace were exhorted to put the +law in force. Four gipsies, who could not find securities that they would +leave the kingdom, were sentenced to be hanged in 1616, but were reprieved +and probably released. In 1624, eight were executed on the Burgh Muir, but +the women and children were simply exiled. In 1636, a number were +condemned at Haddington, the men to be hanged and _the women to be +drowned_. Women who had children were to be scourged and branded in the +face. In the latter half of the seventeenth century many were sent to the +plantations in Virginia, Barbadoes, and Jamaica. + +Generally, however, the stringent laws were not stringently administered, +and from fear or influence of some kind the gipsies often escaped. + +The British gipsies in our own day find that whilst the law is dealt out +to them with perfect impartiality, the social pressure is decidedly +against them. At such watering-places as Brighton and Blackpool--to name +two extremes--they tell fortunes as though there were no statutes in that +case made and provided. But it is not easy for them to keep on the road. +The time cannot be far off when they must live with the _gaújos_[11] as +house-dweller or perish from the land. + + + + +Commonwealth Law and Lawyers. + +EDWARD PEACOCK, F.S.A. + + +The great Civil War as it is called, that is the struggle between Charles +the First and his parliament, is memorable in many respects. No student of +modern history can dispense with some knowledge of it, and the more the +better, for it was the result of many things which had happened in the far +distant past, and we may safely say that the great French Revolution, +which produced some good, and such an incalculable amount of evil would +have run a far different course to that which it did, had not the +political ideals of the men who took part in that terrible conflict been +deeply influenced by what had taken place in England a century and a half +before. + +As to the civil wars which had occurred in England in previous days, +little need be said. They were either dynastic--the struggle of one man or +one family against another--or they were religious revolts against the +Tudors, by those who vainly endeavoured to re-establish the old order of +things in opposition to the will of the reigning monarch and the political +servants who supported the throne. The struggle between Charles and the +Long Parliament was far different from this. That religion in some degree +entered into the conflict which was raging in men's mind long ere the +storm burst it would be childish to deny, but it was not so much, except +in the case of a very few fanatics, a conflict between different forms of +faith as because a great number of the English gentry, and almost the +whole of the mercantile class, which had then become a great power, felt +that they had the best reasons for believing that it was the deliberate +intention of the King and the desperate persons who advised him, to levy +taxes without the consent of parliament. This may occasionally have been +done in former reigns, but it is the opinion of most of those who have +studied the subject in latter days, so far as we can see, without +prejudice, that in every case it was illegal. Whether this be so or not, +it must be remembered that times were in the days of Charles the First, +far different from what his predecessors the Plantagenets and Tudors had +known. A great middle class had arisen partly by the division of property +consequent on the dispersion of the monastic lands, and partly also by the +break up of the vast feudal estates, some of which had fallen into the +hands of the Crown by confiscation, others been sold by their owners to +pay for their own personal extravagence. + +Though murmurs had existed for many years, it was not until the memorable +ship-money tax was proposed that affairs became really grave. Had England +been threatened by an invasion such as the Spanish Armada, there can be no +doubt that a mere illegality in the mode of levying taxes to meet the +emergency would have been regarded as of little account, but in the +present case there was no overwhelming need, and it must be borne in mind +that to add to the national irritation the two first Stuarts were almost +uniformally unsuccessful in their foreign wars. It is to Attorney General +Noy that we owe the arbitrary ship-money tax. He was a dull, dry, legal +antiquary of considerable ability, whose works, such as his _Treatise +concerning Tenures and Estates_; _The Compleat Lawyer_; _The Rights of the +Crown_, and others of a like character, are yet worth poring over by +studious persons. Such a man was well fitted for historical research, no +one of his time could have edited and annotated _The Year Books_ more +efficiently, but he had no conception of the times in which he lived, the +narrow legal lore which filled his mind produced sheer muddle-headedness, +when called upon to confront an arbitrary king face to face with an +indignant people. That there was less to be said against this form of +royal taxation than any other that legal ingenuity could light upon must +be admitted, but as events shewed the course he advised the king to take, +was little short of madness. John Hampden, who represented one of the +oldest and most highly respected races of the English gentry--nobles as +they would be called in any land but our own--set the example of refusing +to pay this unjust levy. The trial lasted upwards of three weeks, and the +men accounted most learned in the law were employed in the case. Sir John +Bankes, the owner of Corfe Castle, Sir Edward Littleton, and others were +for the King. Oliver Saint John and Mr. Holborn were for Hampden. +Concerning Holborn little seems to be known, but Saint John made for +himself a great name. His speeches are marvellously learned, shewing an +amount of reading which is simply wonderful when we call to mind that in +those days all our national records were unprinted, and almost all of them +without calendar or index of any sort. It must, however, be remembered +that in those days lawyers of both branches of the profession were well +acquainted not only with the language in which our records were written, +but also with the hands employed at various periods, and the elaborate +system of contraction used in representing the words. + +A full report of this memorable trial is to be found in Rushworth's +_Historical Collections_, volume ii. parts 1 and 2. Carlyle in his +_Letters and Speeches of Oliver Cromwell_, in the emphatic diction he was +accustomed to use says that Saint John was "a dark, tough man of the +toughness of leather,"[12] but he does not dwell on his great learning and +general ability, as he ought to have done. That Saint John's heart was in +his work for his client we are well assured. That from a legal point of +view, Hampden was his only client, we well know, but as a matter of fact, +it is no exaggeration to say that he represented the people of England. +The decision went in favour of the crown, which was from the first a +foregone conclusion. It was a legal victory, but like many lesser +victories won before and since success was the sure road to ruin. The sum +contended for was absurdly small--twenty shillings only--but on that pound +piece hung all our liberties; whether we were to continue a free people or +whether we were to have our liberties filched away from us, as had already +been the case in France and Spain. A sullen discontent brooded over the +land, there was no rioting, but in hall and castle, country parsonage and +bar-parlour, grave men were shaking their heads and asking what was to +come next, all knew that a storm was brewing, the only question was when +and where it would burst. Events changed rapidly, and Saint John though he +took no very prominent part in the party struggles ere the war broke out, +was undoubtedly the chief legal adviser of those who were in opposition to +the faction which desired to make England a despotic monarchy. Such was +the case during the war which ended in the tragic death of the king, and +the establishment of a Republican form of government under the name of the +Commonwealth. Saint John once again appears in a public manner which +indicates that he was a brave man who had no more fear of the pistol and +dagger of the assassin, than he had of the corrupt dealings of those who +for a time, to their own imminent peril had misgoverned our country. This +time we find him sent by the Commonwealth as ambassador to the seven +United Provinces, then as now commonly called Holland, on account of the +two provinces of north and south Holland, being by far the most +influential states in that republic. The Dutch though republicans +themselves, had during the latter part of our Civil War shewn sympathy +with the cause of the Royalists. After the execution of the king, this +feeling became naturally much intensified. On the other hand our newly +established republic was for many reasons both of politics and religion +very desirous of being on good terms with a sister commonwealth so very +near at hand. To explain matters and perhaps to settle the heads of a +definite treaty, the English government sent Isaac Doreslaus, or Doorslaer +as their ambassador. He was by birth a Dutchman and a very learned lawyer. +He had come to this country before, the war broke out in 1642. He was then +made, probably through the influence of his friend Sir Henry Mildmay, +"Advocate of the Army."[13] His great knowledge of Civil Law, which had +been much neglected in England in times subsequent to the Reformation, +rendered him of great service in his new position of Judge Advocate of the +Army. For the same reason he soon afterwards was created one of the judges +of the Admiralty Court. He became especially hateful to the Royalists from +his having assisted in preparing the charges against Charles the First. In +May, 1649, he sailed for Holland as Envoy of the English government to the +Hague. He had only spent a short time there, when, while at supper in the +Witte Zwaan (White Swan) Inn, some five or six ruffians with their faces +hidden by masks, rushed into the room where he, in company with eleven +other guests were sitting. Two of these wretches made a murderous attack +on a Dutch gentleman of the company, mistaking him for Dorislaus. Finding +out their error they set upon the Envoy and slew him with many wounds, +crying out as they did so, "Thus dies one of the King's judges." The +leader of this execrable gang was Col. Walter Whitford, son of Walter +Whitford, D.D. The murderer received a pension for this "generous +action"[14] after the Restoration. + +The English Parliament gave their faithful servant a magnificent funeral +in Westminster Abbey, June 14, 1649, but when Charles the Second ascended +the throne, his body was disturbed. His dust rests along with that of +Admiral Blake and other patriots in a pit somewhere in Saint Margaret's +churchyard.[15] Dorislaus, though a foreigner, ought to rank among our +great English lawyers, for his services were devoted entirely to his +adopted country. Whatever our opinions may be as to those differences +which were the forerunners of so much bloodshed and crime, we must bear in +mind that many of the foremost men on both sides were actuated by the +highest principles of honour. The study of Canon Law had been prohibited +in the preceding century, and the Civil Law with which it has so intimate +a connection, though not made contraband, was so much discouraged that it +is no exaggeration to say that the knowledge of it was confined to a very +few. Selden, whose wide grasp of mind took in almost every branch of +learning as it was known in his day, is the only English lawyer we can +think of who had mastered these two vast subjects. This is the more +remarkable as he was of humble parentage; the son of a wandering minstrel +it is said, but from the first his passion for learning overmastered all +difficulties. It must, however, be borne in mind that according to the +custom of those times when his abilities became known, he met with more +than one generous patron. + +We must for a moment return to Saint John who was selected in 1652, to +represent his country in Holland. There was not, as there is now a trained +body of men devoted to the diplomatic service. The reasons why Saint John +was chosen for this important office are not clear. He was a great and +widely read lawyer, who we apprehend was trusted with this difficult +mission, not only because the government were assured of his probity, but +because the relations between Holland and this country depended on many +subtile antiquarian details which a mere student of the laws as they were +then, would have been unable to unravel. The basis of the sea codes by +which the various nations of christendom professed to be ruled, was the +Laws of Oleron (Leges Uliarences). They were promulgated by Richard the +First of England, on an island in the Bay of Acquitaine. How far they were +ever suited for their purpose may be questioned, but it is certain that as +centuries rolled on, they had though often quoted, ceased to have any +restraining power, and as a consequence Spain, England, Holland, and other +powers were guilty of constant acts of what we should now call piracy. A +lasting treaty with Holland, could Saint John achieve it, would have been +of immense advantage, but the Dutch were in no mood for an alliance on +equal terms. It was a brave thing for Saint John to undertake so arduous a +mission, for he not only run the risk of ignominous failure, but also was +in no little danger from the savage desperadoes who thought they did the +cause of their exiled master service by murdering the agents of the +English government. When Saint John arrived at the Hague he was put off by +slow and evasive answers, which soon shewed to him not only that his own +time was being wasted, but what was to him of far more account, the honour +of his country was being played with. He gave a proud, short, emphatic +reply to the Dutch sophistries, and at once returned home again, to cause +the celebrated Navigation Act to be passed, forbidding any goods to be +imported into England, except in English ships, or in the ships of the +country where the articles were produced. This was well-nigh ruin to the +trade of the Dutch, who were then the great carriers of the world. + +In no sketch however brief of the lawyers of this disturbed time, can the +name of William Prynne be entirely passed over, and yet it is not as a +lawyer that his name has become memorable. Had he been a mere barrister at +law he would long since have been forgotten, but he was an enthusiastic +puritan of the presbyterian order, and a no less enthusiastic antiquary. +He had probably read as many old records as Saint John or Selden, but had +by no means their faculty of turning them to good account. He first comes +prominently before us as attacking the amusements of the court, especially +theatrical entertainments. For this he was proceeded against in the Star +Chamber, sentenced to pay five thousand pounds and have his ears cut off; +for an attack on episcopacy he was fined another five thousand pounds and +sentenced once more to have his ears cut off. He afterwards bore a +prominent part in the trial of Archbishop Laud. All along he continued to +pour forth a deluge of pamphlets. He attacked Cromwell with such boldness, +that the Protector felt called upon to imprison him in Dunster Castle, +where however, his confinement was of a most easy character. He is said +while there to have amused himself by arranging the Lutterell Charters, +for which that noble home is famous. He took the side of Charles the +Second at the Restoration, and as a reward was made keeper of the records +in the Tower, a post for which he was peculiarly well fitted. + +There is probably nothing which distinguishes the periods of the +Commonwealth and the Protectorate more markedly from other times of +successful insurrection, than the very slight alteration which the new +powers introduced into the laws of England. The monarchy, it is true, was +swept away, but the judges went on circuit; the courts of Chancery and +common-law sat as usual, the Lords of Manors held their courts, and the +justices of peace discharged their various functions as if they had been +the times of profoundest peace. No confiscations took place, as had been +the case in the reign of Henry the Eighth and his successor, except in +cases where the owners had been engaged in what the state regarded as +rebellion, and even with regard to those who had fought in what is known +as the first war, almost everyone was let off by a heavy fine. A list of +these sufferers may be seen in _A Catalogue of the lords Knights and +Gentlemen that have compounded for their Estates_ (_London Printed for +Thomas Dring at the Signe of the George in Fleet Street_, neare Clifford's +Inne, 1655.) The book is imperfect and very inaccurate. This is not of +much consequence however, as the documents from which it is compiled known +as _The Royalist Composition Papers_, are preserved in the record office, +and are open to all enquirers. Those who madly engaged in what is known as +the second war, had their estates confiscated by three acts of parliament +of the years 1651 and 1652. These were reprinted and indexed for the +_Index Society_ in 1879. These latter had their estates given back to +themselves or their heirs on the Restoration. It does not seem that those +who were fined, except in a very few cases had any return made to them. +There have been few civil wars ancient or modern wherein the unsuccessful +have been so tenderly treated. Yet sufferings of the poorer classes among +the Royalists must have been very great. Next to the arbitrary conduct of +the King and those immediately about his person, was the provocation which +the Parliamentarians thought that the established church had given, +firstly because many of the bishops and clergy maintained an extreme +theory of the Divine Right of Kings, which is said first to have been +taught in this country by Archbishop Cranmer. If this opinion were really +accepted as more than a mere figure of flattering oratory, it made those +who complied with it mere slaves to the sovereign, however tyrannical or +wicked he might prove himself. The second ground of resentment was that +they thought Archbishop Laud and many of the bishops and clergy, concealed +Roman Catholics, "disguised Papists," as the common expression ran. We do +not believe this charge with regard to Laud or most of the others so +rashly accused. We are _quite sure_ it was not so if their writings are to +be taken as a test of their feelings. Whatever may have been the truth, +there is no doubt that even the more tolerant of what may be called the +low-church party feared the worst. As early as 11th February, 1629, Oliver +Cromwell, who was then member for Huntingdon, made a speech in which he +said, "He had heard by relation from one Dr. Beard ... that Dr. Alablaster +had preached flat Popery at Paul's Cross, and that the Bishop of +Winchester (Dr. Neale), had commanded him as his Diocesan, he should +preach nothing to the contrary."[16] So inflamed, however, were men's +minds that as soon as the Parliamentary party was strong enough, Laud was +indicted for high treason and beheaded. + +One of the first works of the Parliament when strong enough, was to +abolish the _Book of Common Prayer_, and put a new compilation called the +_Directory_ in its place. The use of the Prayer Book was forbidden not +only in public offices of religion, but in private houses also. For the +first offence five pounds was to be levied, for the second ten, and for +the third the delinquent was to suffer one year's imprisonment.[17] +Whether this stringent law was rigorously inforced we cannot tell. +Probably in many cases the local justices would be far more lenient to the +clergy who were their neighbours, that would be the legislators at +Westminster, whose passions were fanned by listening to the popular +preachers. Not content with interfering with the service-book, various +acts were passed relating to "Scandalous, Ignorant, and Insufficient +ministers." That the commissioners who put these acts in force removed +some evil persons we do not doubt, but if John Walker's _attempt towards +recovering an account of the number and sufferings of the Clergy of the +Church of England, who were sequestered ... in the Grand Rebellion_, be +not very grossly exaggerated, which we see no reason, to believe, many +innocent persons must have had very hard treatment. + +The marriage laws of England were in a vague and unsatisfactory state from +the reign of Edward the Sixth, until the Commonwealth time. An attempt was +made in 1653 to alter them. Banns were to be published either at Church or +in the nearest market town on three market days, after this the marriage +was to take place before a justice of peace. Many entries of marriages of +this kind are to be found in our parochial registers. English was made the +language of the law in 1650, but Latin was restored to the place of honour +it had so long held, when the Restoration took place. + + + + +Cock-Fighting in Scotland. + + +It is highly probable that the Romans introduced cock-fighting into this +country. It is generally believed that the sport was made popular by +Themistocles. On one occasion he saw two cocks fighting, and their courage +greatly impressed him, and he felt such exhibitions might teach a useful +lesson of bravery to those who witnessed them. Periodical contests were +exhibited, and were popular amongst the Greeks and Romans and with other +nations, and were much appreciated by a large section of the inhabitants +of this land. In "Bygone England," by William Andrews, F.R.H.S. (London +1892), will be found a long account of "Fighting-Cocks in Schools." One of +the earliest accounts of the pastime in England, says Mr. Andrews, occurs +in a "Description of the City of London," by William Fitzstephen, who +wrote in the reign of Henry II., and died in the year 1191. He records +that it was the annual custom on Shrove Tuesday for the boys to bring +their game cocks to the schools, to turn the schoolrooms into cockpits, +the masters and pupils spending the morning witnessing the birds fighting. + +Old town accounts contain many references to this custom, for example at +Congleton, Cheshire, is the following item:-- + + "1601. Payd John Wagge for dressynge + the schoolhouse at the great + [Congleton] cockfyghte." Ł0 0s. 4d. + +Hugh Miller, the famous geologist, who was born in the year 1802, in his +popular volume "My Schools and Schoolmasters," gives a graphic account of +that amusement in the Cromarty grammar school where he received his +education. "The school," says Miller, "like almost all other grammar +schools of the period in Scotland, had its yearly cock-fight, preceded by +two holidays and a half, during which the boys occupied themselves in +collecting and bringing up the cocks. And such was the array of fighting +birds mustered on the occasion, that the day of the festival from morning +till night used to be spent in fighting out the battle. For weeks after it +had passed, the school floor continued to retain its deeply stained +blotches of blood, and the boys would be full of exciting narratives +regarding the glories of gallant birds who had continued to fight until +their eyes had been pecked out; or who in the moment of victory, had +dropped dead in the middle of the cock-pit." Miller at some length +denounces the cruel sport. + +In England cock-fighting is prohibited by statute 12 and 13 Vict. 3, 92, +under which every person who shall in any manner encourage, aid, or assist +at the fighting or baiting of any bull, bear, badger, dog, cock, or other +animal, shall forfeit and pay a penalty not exceeding Ł5 for every such +offence. In Scotland it was not illegal until quite recently. An act was +passed in 1850 known as the "Cruelty to Animals (Scotland) Act," but the +wording of the statute was found not to include the game or fighting-cock. +The sport became popular and the law could not touch those that took part +in the cruel amusement. It was felt to be a national scandal, and to +prevent it, a short statute was passed on 30th May, 1895, whereby the +definition of the word _animal_ in the 11th section was amended by adding +at the end thereof the words "or any game or fighting-cock, or other +domestic fowl or bird." + +Mr. Robert Bird, the genial and gifted author of "Law Lyrics," a volume +which has been warmly welcomed by the public and the press, has made +cock-fighting the subject of a clever poem. + + COCKIELEERIE-LAW. + BY ROBERT BIRD. + _In Full Court, Edinburgh, 23rd December, 1892._ + + Six legal wigs, like well-plumed tappit hens, + Sat brooding o'er a pair of fighting cocks; + While lesser wigs, begowned, and brief in hand, + Declaimed in flowing periods, of the fray, + Like ancient bards, that wanted but their harps, + Their wallets, ballad verse, and song, to make + The very goose quills, sleeping on the bench, + Awake! take sides and spill each other's ink. + And as they spake, a legal fog dropt down + Upon the learned six, and each beheld, + In green mirage, born of the cloud of words, + Two cocks, Game cocks, crop-combed, erect, and slim, + With feathers dipped in crimson, gold, and blue, + Frill-necked, with trailing wings and spurs of steel, + That on each other flew and pecked and spurred, + And spurred and pecked again, until the Court + Reeked like a cock-pit, and the crowd of wigs,-- + Of boyish idle wigs,--took bonnet shapes + That hooded scowling brows of cursing men, + Who laid their bets on this bird, and on that, + As, with quick panting breath and beaks agape, + They pranced, flew, fought, until the oaken bar + Seemed spattered o'er with feathers and cock blood. + At length one cock the other overthrew, + And struck quick spurs into his quivering breast + Until he died; then he, with croaking crow, + Fell, wounded, bleeding, dying by his side + Amid the applauding cheers of thirsty throats, + Soon to be slaked with liquid bets, and so + The battle ended, but the fog remained. + + A rustling of silk plumes upon the bench, + Five wigs bent low, and thus great Solon spake-- + "'Twas in Kilbarchan that this fight was fought, + And straight the men who prompted it were ta'en, + And jailed, and tried, and sentenced for the same; + But now they seek release, and this their plea, + That in the gracious Act which says that men + Shall not treat brutes and beasts with cruelty, + The name of "_Cock_" is absent; therefore they + Claim full exemption for their brutish deeds, + And we, vicegerents of our gentle Queen, + With spectacle on nose, must well explore + This vital point in _Cockieleerie-law_. + + The illumined page of history reveals + Cock-fighting as an ancient royal sport. + The Early Greeks and Romans in their day + Found pastime sweet in setting cock on cock; + The sage Themistocles took keen delight + In battling fowls; while glorious Cćsar, too, + Loved much to back his bird; and, furthermore, + Marc Antony's gamecocks did always lose + When pitted against Cćsar's fiercer breed. + King Henry VIII., of sainted memory! + At Whitehall had a special cock-pit built, + Wherein his royal birds made lively sport + For gentle dames and all his merry knights. + The most accomplished scholar of his day, + Squire Roger Ascham, tutor to Queen Bess, + Much as he loved his books, loved cocks the more, + And loved them most when victors in the fight. + And last of all, that great and noble Duke, + The conqueror of Blenheim, in game birds + Found something that reminded him of self; + And thus we see the fighting instinct strong + In cocks, and other nobles of past time. + + "Game cocks, we find, from earliest Cockereldom, + Delight in war, as dogs to bark and bite, + And raining blows upon each other's ribs + Do best fulfil their part of nature's plan, + Which built them slim and bade them love the fray; + And while we hope no preference here to show,-- + 'Tis open question, whether rearing fowls + To wring their necks, or match them in the pit, + Does more exalt the brute or sink the man. + + "But here, the cocks were armed with spurs of steel, + And 'tis a subtle matter, whether they + With iron shod, or spurred with native horn, + Do deal the deadliest blows in angry fray; + And, while we have our own opinion strong! + 'Tis not within our province to pronounce. + + "If it be wrong with steel to prick a fowl, + What of the spurs with which hard riders goad + The bleeding sides of horses in the race, + Or in the steeplechase, or country hunt? + And what of hares in coursing run to death? + Of quivering foxes torn by yelling hounds? + Of wheeling pigeons slaughtered for a prize? + We make no mention of the common use, + Of otter hunting, grouse and pheasant drives. + And of the sport termed _noble_, where the stag + Is forced upon the guns that lay him low. + No doubt, two blacks can never make one white, + Nor multiplying blacks turn black to grey; + But if to brutalise mankind be thought amiss, + Then there are other ways, than fighting cocks. + + "Still that's beside our purpose, which is this-- + To scan the statute, microscope in hand, + And note if in its sweep humane, we see + A roosting place for fighting chanticleer. + And there we find, or rather fail to find, + The name of "Cock" among the saving list + Of nineteen beasts protected by the law, + Though thus the list concludes, "_and other kinds + Of animals domestic_," or like words. + Are we to find Game Cocks, domestic fowls? + Are we to hold that birds, are animals? + Our view is quite the contrary, or else + There's not a beast, bird, fish, or insect but + The term "domestic" would to them apply, + And make it penal e'en to slay a louse. + + "And while, in other parts of this same Act, + We find "Cock" followed by the general phrase, + "_Or other kind of animal_," we hold + It bears not on the matter now in hand, + But only serves to show that Parliament, + When brooding, clucking, hen-like, o'er this Act, + Had Cocks well in their eye, and plainly did, + Of purpose full, omit them from the list; + And while bear-fights, bull-fights, dog-fights, and all + Vile sports and brutish cruelty to beasts, + The spirit and the letter of the law + Do quite forbid, _unanimous we hold + Cock-fighting is a lawful use of Cocks, + And finding so we liberate these men_. + + "It will be said, this Statute has been read + Reversely in our sister England, where + It is the Charter of proud Chanticleer; + But what of that? It alters not our mind! + But only shews, that they, of feebler clay, + Stick not at trifles, so the end be good, + And let the heart o'erbeat the legal mind; + While we, of sterner stuff, fail not to find + Motes in the sunshine of their simple wits, + And gnats to strain out of their cups of wine; + For in the nice accomplishment and use + Of splitting hairs, and weighing feathers small, + Of riddling wisdom from a peck of words, + We are more skilled, more subtle, more profound + Than our legal brethren of the South." + Whereat five horse-hair wigs again bowed down + In low obeisance to the mighty sage, + And straight the Court was cleared of cocks and men. + + + + +Fatal Links. + +BY ERNEST H. RANN. + + +A consideration of the detection of crime brings forcibly to the mind the +fact that officers of law have frequently to depend for success on the +accidental discovery of the most trifling items and incidents. Conversely +the criminal section of the community who prey on the weakness or folly of +their neighbours have to fear not only a knowledge of their principal +movements, but the discovery of the connecting link which shall complete +the chain of evidence against them. The deepest laid plot, the most +cunning scheme, contains a flaw which may be fatal to their operations, to +their liberty, and even their life, a flaw which no amount of previous +examination may detect, a weakness which can rarely be adequately guarded +against. Justice and the vindication of the law, therefore, depend largely +on a proper regard being paid to minor occurrences, which at first sight +would seem to have no bearing whatever on the particular case under +consideration. The history of crime contains numberless instances where +the criminal has been brought to justice through one or other of these +causes--the presence of particular hairs or threads on his clothing or on +the weapon used, the direction of certain cuts on the body of his victim, +the possession of trifling articles. At other times dreams have played no +inconsiderable part in the vindication of the law, which has also been +aided by supernatural visitants, or by the self-consciousness of the +criminal. + +It would be impossible in a short article like the present to offer a full +list of cases of this description, but a few typical instances may be +taken with the object of showing how crimes, long hidden, have been +discovered in the most remarkable manner. Probably the best example +occurred at Augsburg, in 1821. A woman named Maria Anna Holzmann lived in +a house in the town belonging to one Sticht. Her means only permitted her +to occupy a few of the rooms, and the remaining parts of the premises were +let to lodgers, among whom were George Rauschmaier and Joseph Steiner. On +Good Friday, April 20th, Holzmann disappeared. She had not given notice +of her intended departure, and nothing was known of it until some days +later when Rauschmaier and Steiner also left the premises, saying that +their landlady had previously quitted the house, leaving them in +possession of her keys. This information, however, was not given to the +police until May 17th. In the meantime Holzmann's relatives had become +apprehensive of her safety, and being reluctantly forced to the conclusion +that foul play had befallen her, they decided to take an inventory of her +property, as it was known that, although in humble circumstances, the +woman had managed by care and economy to amass considerable wealth. It was +found, however, that the greater part of her money and other valuables +were missing. + +In spite of active enquiries no further action of importance in the matter +was possible until the following January, when Theresa Belter, a +washerwoman who also lived in the house, announced that she had found a +thigh of a human body hidden in the loft. Further investigations revealed +a leg and the other thigh in a heap of rubbish in a corner of the room, +and between the chimney and the roof, a trunk without head or limbs was +discovered. An old gown and a petticoat, identified as portions of the +dress of Holzmann, were also brought to light, while search in +Rauschmaier's room disclosed other parts of a woman's body. The head was +missing, but when news of the unmistakeable crime was noised abroad, a +neighbouring manufacturer stated that during the preceding year he had +found a skull, still bearing portions of flesh and hair, in his factory +weir, but had not considered the "find" worthy of preservation. + +There could be no doubt that Maria Anna Holzmann had been murdered, and +the whole machinery of the law was put in motion to bring the criminals to +justice. Suspicion fastened itself strongly upon the two men, Rauschmaier +and Steiner, but actual evidence against them, or indeed against anyone, +was of the scantiest description until the separate pieces of the woman's +body were placed together. While the left arm was being examined, a brass +ring fell out of the bend of the elbow, whence it had evidently slipped +from the finger of the murderer. Whose was the ring? then became the all +important question. Rauschmaier was arrested and confessed that he had +stolen and pawned several articles of Holzmann's property, but he sternly +denied having committed the murder. The property, including a pair of +ear-rings, had been recovered from the pawnbroker's, and these, with the +brass ring, were laid before the accused. He had not wit enough to discern +the trap laid for him, and immediately on seeing the ornaments, he +exclaimed "The ear-rings and the gold and brass rings are mine. The brass +ring I always wore until within four or five weeks after Easter, since +when I have worn gold ones. The brass ring fits the little finger of my +left hand; it slips on and off with ease." This foolish statement, and the +place of the discovery of the ring, proved conclusively that Rauschmaier +was the murderer of the unfortunate Holzmann. Subsequently he made full +confession of the crime, stating that the brass ring must have slipped off +while he was cutting up the body. He paid the penalty of his sins with +death. + +The "Greenacre" case, which occurred in 1836, was similar to the foregoing +in many of its details. In that year, portions of the mutilated trunk of +an old woman named Brown were found in a house in Edgeware Road, wrapped +in old rags and sacking. Subsequently the head was discovered in Regent's +Canal, and the limbs in a drain in the neighbourhood of Camberwell. +Comparison between the various portions left no doubt as to the identity +of the deceased, and James Greenacre, whom Brown intended to marry, and to +whose house she had gone with all her property, was accused of the murder. +A woman named Gale with whom he lived was also charged with complicity in +the deed. Once more suspicion, however strong, was insufficient to bring +the crime right home to the accused, but the discovery, among Greenacre's +property, of some rags corresponding with the pieces covering the +mutilated remains, together with a few articles belonging to Brown, turned +suspicion into actual proof. Greenacre was condemned to death, and his +companion sentenced to transportation for life. + +The murder of William Begbie, at Edinburgh, is a remarkable case of the +manner in which the author of a crime may remain long hidden, and only +then be discovered by accident. Begbie was a bank porter, and on November +30th, 1806, he was employed to carry a parcel of notes, worth about +Ł4,000, to one of the bank's customers. On his way he had to pass through +a narrow, dark, and tortuous entry, and there he was brutally murdered and +the notes were stolen. Although a knife, of a particular pattern, was +left in the body, the murderer remained at large, and no clue to the +terrible crime could be unearthed. Nine months later the bundle of notes, +untouched, was found hidden in a wall, but long years passed before the +mystery was completely solved. In 1822 a Bow Street runner named Denovan, +while visiting Leith, chanced to fall into conversation with a sailor +lately returned from captivity among the French. Speaking of old times the +mariner accidentally mentioned that coming ashore one morning he had +noticed a man like William Begbie, followed by a person dressed in black +and of respectable demeanour. He lost sight of them for a few moments, but +later on he was surprised to see the man in black rush out of the narrow +entry with a bundle under his arm. On the next day he heard of the murder, +and feeling confidant that he could throw light on the crime, he informed +the mate of his vessel of what he had seen. Permission to go ashore was, +however, refused. The vessel sailed, was captured by the French, and the +sailor witness did not recover his liberty for fifteen years. Denovan set +to work with this important clue, and enquiries proved that the man in +black was no other than a notorious criminal named Mackoul, who had lived +in Edinburgh in 1806. The law had claimed its own, however, previous to +the sailor's disclosures. In 1820 Mackoul had suffered death for robbery; +still, though he was beyond punishment for his old crime in Edinburgh, it +was satisfactory to know that the mystery of the bank porter's death had +at last been solved. + +Probably the most notorious case in English annals of murder discovered by +extraordinary means is that of the killing of Daniel Clarke by Eugene +Aram. The main facts of the case are so well known that it is scarcely +necessary to enter into them here. Aram, assisted by a man named Houseman, +it may be remembered, murdered Clarke for the sake of his wealth, and hid +the body in St Robert's cave, near Knaresborough. There it remained from +1745 till 1759, when it was accidentally discovered by a labourer. Close +examination led to the conclusion that the body, or rather the skeleton, +was that of a murdered man, and when the mysterious and almost forgotten +disappearance of Clarke was remembered, steps were taken to arrest his +quondam companions Aram and Houseman. The latter turned king's evidence, +and on his testimony Aram was executed, leaving a shady memory to be +invested with undeserved romance by a poet and a novelist of the following +century. + +Researches into modern criminal records also reveal a number of +interesting cases similar to those cited above. A few years ago a Pole +named Lipski was convicted in London of the murder of a woman. Strenuous +efforts were made to obtain a pardon, on the ground that he had been +wrongly convicted, but the solitary fact on which the Home Secretary +decided to allow the law to take its course was that the door of the room +had been locked in which the woman was found murdered, with Lipski himself +hiding under the bed. And in tracing the Muswell Hill murder to its +authors, the police were aided in their endeavours by the discovery of a +common lantern which had been left on the scene of the crime. It was +supposed to belong to a relative of one of the suspected men, and in order +to verify this important link in the chain of evidence, a youthful agent +of the detective force was employed to spin his top in front of the +supposed owner's house, engage him in conversation if possible, and obtain +evidence of the ownership of the lantern. The result was completely +satisfactory; the suspicions of the police were confirmed, and the +murderers brought to justice, mainly, it may be said, through the +lantern's silent testimony. + +Another case of murder, which occurred in 1806, was brought home in a +singular and complete manner. A Deptford gentleman, named Blight, was +killed by a pistol-shot, and Sir Astley Cooper, from an examination of the +victim's wounds and of the place of his murder, arrived at the opinion +that none other than a left-handed man could have committed the crime. +Acting on this conclusion the police arrested one Patch, who had been seen +in the locality. When Patch was asked to hold up his hand to plead the +indictment, he put up his left hand. The jury brought in a verdict of +guilty, and before execution the criminal made full confession of his +terrible deed. + +Dreams also have played no inconsiderable part in the discovery of crime. +We have not space in the present article to notice all trials where +dream-evidence has been offered to the court; a brief notice of those +cases in which it has had an important bearing must suffice. The most +notorious instance, of course, is that of Maria Martin, the victim of the +Red Barn tragedy. After her departure from home, in order, as was +supposed, to many William Corder, nothing, either by way of letters, or +otherwise, was heard of her, except brief mention in Corder's +communications. Nearly twelve months passed, when Mrs. Martin was startled +and horrified by dreaming, on three successive nights, that Maria had been +murdered and buried in the Red Barn. After much persuasion her husband and +son consented to search the place, and there, in the exact spot indicated +by Mrs. Martin as having been pointed out in her dreams, was found the +body of her missing daughter, buried under the flooring in a sack. + +Mention may also be made of the case of Ulick Maguire, an Irish farmer, +whose wife dreamed that her husband had been murdered by a disappointed +lover of hers, named O'Flanagan. A few days later an idiot boy, who lived +in the house, was heard shrieking in terror: "Shanus dhu more O'Flanagan +(big black James) has kilt Ulick, and buried him under the new ditch at +the back of the garden. I dhramed it last night, evry wurrd av it." The +singular coincidence of the lad's dream with her own excited Mrs. +Maguire's suspicions to the utmost, especially as her husband was away +from home at the time. She ordered a search at the particular spot +mentioned by the idiot boy, and there, to her horror, was found the body +of Ulick, with the skull cleft in twain. Immediate request was made for +"big black James." He had absconded and enlisted in the army, but on being +charged with the crime he admitted his guilt, and suffered the penalty of +death. + +In one instance, by far the most wonderful of its kind, the victim of a +murder has appeared in successive dreams, and played the part of detective +with admirable skill and effectiveness. A Grub Street victualler, named +Stockton, was murdered towards the close of the seventeenth century. Three +men were suspected of the crime, but neither of them could be discovered, +and the affair seemed likely to become one of the mysteries of crime, when +a Mrs. Greenwood dreamed that Stockton, who had been a neighbour during +life, had taken her to a house in Thomas Street, telling her that his +murderer was inside. On going to the house in person Mrs. Greenwood was +told that Maynard, one of the suspected men, had gone abroad. The +following night Stockton appeared and showed her the features of Maynard, +and gave her such particulars of the man's habits and resorts that he was +captured within a few hours. From Maynard the names of his partners in +guilt, Bevel and Marsh, were obtained, but again the authorities were at +fault, until Stockton indicated the house where Marsh visited, and the +yard (afterwards discovered to be the yard of Marshalsea Prison) in which +Bevel would be found. From a crowd of other prisoners Mrs. Greenwood +identified Bevel, and shortly afterwards, through her strange testimony, +Marsh also was arrested. Then, as an old chronicle of the case affirms, +Stockton appeared for the last time, and thanked her for her good offices. +We have given the story as it has come down through two centuries; a whole +body of clergymen attested its accuracy at the time, and present-day +enquirers would have great difficulty, we imagine, in conclusively proving +that the murder of Stockton was traced by other and less extraordinary +means. + +Closely allied to the evidence furnished by dreams, and indeed, as in the +foregoing case of Stockton, sometimes barely distinguishable from it, is +that offered by ghosts, actually seen by witnesses in a waking, but +hallucinatory, state. Such evidence would scarcely be admissable in +modern courts of law, but in past ages it was freely employed, and has +served to bring criminals to the gallows. It must be admitted that the +other testimony against the accused was strong, but in numerous instances +ghosts have been instrumental in putting the officials on to a clue or +track which they would most likely never have discovered by their own +unaided efforts. In his "History of Durham," Surtees mentions the case of +Anne Walker, who lived in 1630, and had become engaged in an intrigue with +a relative of the same name. The girl was placed for a time under the care +of a friend in a neighbouring village, but one night she was removed from +there by Walker and a man named Sharp. From that date no one saw her +alive. A fortnight afterwards, Graime, a fuller, was terrified by the +appearance in his mill of Anne Walker's ghost, "dishevelled, +blood-stained, and with five wounds in her head." She told him the whole +story of her murder; how Sharp had killed her with a collier's pick, and +then thrown her body down a shaft. Graime hesitated to use this strangely +acquired information. Apparently incensed at his delay, Anne Walker +repeatedly appeared, and in order to rid himself of these visitations, +the frightened fuller at length acquainted the authorities with his story. +Immediate enquiry confirmed his statements in every particular. Walker and +Sharp were arrested, charged with the murder of the girl, found guilty, +and executed, though to the last they maintained their innocence of the +crime. + +A case, somewhat similar, has occurred even in the present century, and in +matter-of-fact, new world Australia, where visions might be expected to be +few and far between. The friends of a well-to-do settler near Sydney were +surprised to hear from his steward that he had been suddenly called to +England on important legal business. Remembering the vast wealth of the +man, and the necessity for precautions in regard to it, they accepted the +statement, and also recognised the steward's control of the estate during +his master's absence. What was the astonishment, however, of one of these +friends, when on riding over the estate he saw the owner, whom he thought +to be in England, sitting on a neighbouring stile? The figure looked at +him silently and sorrowfully, then walked towards a pond and disappeared. +Drags were procured and the water searched, when the body of the absent +owner was brought to the surface. Confronted with the corpse the steward +confessed that he had murdered his master at the identical stile on which +the ghost had sat. + +Pierre le Loyer, a French writer on law and the supernatural, mentions in +his "Discours des Spectres," the case of a man who mysteriously vanished, +having, as was supposed, been murdered. A few weeks later the ghost of the +absentee appeared to his brother, took him to a lonely spot, and there +pointed out where he had been murdered and buried by his own wife and her +lover. Enraged at this domestic perfidy and wickedness the brother +denounced his sister-in-law, and on his testimony she was condemned to be +strangled and her body afterwards burned. + +About half a century ago a peculiar case of fraud was disclosed by +remarkable means during the hearing of a law-suit in Tuscany. The decision +of the court turned on the point whether a certain word had been erased +from a particular document of importance. Chemical processes were alleged +to have been employed, and acting on scientific knowledge one of the +lawyers proposed that the document should be heated, as thereby a slight +difference of shade or colouring between the paper and the letters +supposed to have been removed might become visible. Permission was given +to try the experiment, and on the application of heat the important word +in question immediately appeared, and the court gave a verdict in +accordance with this ingeniously devised testimony. + +Since that time the progress and development of science have enabled +criminal investigation to be conducted by methods which would otherwise be +impossible, and with almost unerring certainty and decision. The +microscope and the spectroscope have been employed in numerous cases of +murder and forgery where less subtle means of discovery would have proved +useless; chemical analysis has become an important agent of detection, +while photography has also rendered signal service in the cause of +justice. We may not have concerned ourselves with the numerous methods by +which bank-note forgeries are detected; hitherto our references have been +mainly to the more serious crime of murder, and with a few instances of +this character brought to light through modern science our list must +close. + +Although, generally speaking, the microscope cannot discern any difference +between the blood of man and that of other mammalia, yet the merest +examination suffices to show the difference between mammalian blood and +that of birds, reptiles, or fishes. In the one case the red blood +corpuscles are round, and without a nucleus; in the other they are oval +and nucleated. On this fact the evidence for a prisoner at Chelmsford +charged with murder was completely rebutted. Blood stains had been found +on his clothes, which, according to his counsel, had been caused by +chicken's blood. But the prosecution brought forward a microscopist, who +stated that the blood stains were mammalian, and on this testimony the +plea of the prisoner was rejected. In the following year, and at the same +assizes, the testimony against a man charged with murder was strengthened +by the microscopical discovery of cotton fibres on a certain weapon, which +he was said to have used, while the murderers of a man who had been kicked +to death were convicted on the evidence of two doctors, who found on the +boots of the accused a number of hairs corresponding with the hair on the +head of the victim. Evidence of this kind is becoming of extreme +importance. Hardly a serious crime is investigated without the application +of one or other of these scientific methods of detection, and with each +success the career of the criminal becomes increasingly difficult and +arduous, and his chances of success more remote. Of remarkable discoveries +of crime the microscope, the camera, and the spectroscope furnish the most +subtle instances, and it is quite possible that before long other methods +of investigation, founded on the most recent scientific achievements, will +also be brought into operation. The phonograph and the Röntgen rays are +only waiting their turn to serve in the cause of justice. + + + + +Post-Mortem Trials. + +BY GEORGE NEILSON. + + +It might be thought that a man's death made an end of him, and that his +mere body had no rights or duties except that of getting decently buried. +The middle age had other ideas. The dead still had status and duties. +Continental laws recognised acts of renunciation in which a widow laid the +keys on her husband's corpse, or tapped his grave with the point of a +halberd. The body of a murdered person, or, it might be his hand merely, +might be carried before the judge to demand vengeance.[18] By English +thirteenth century law[19] legal possession of real estate was thought to +remain in a man, not until he died, but until his body was borne forth to +burial. The dead might be a very potent witness, as shewn by the ordeal of +bier-right,[20] a practice founded on the belief that the murderer's +touch would cause the victim's wounds to bleed afresh. Thus variously +qualified to act as witness or prosecutor as occasion required, it is not +surprising to find the dead as defendant also. + +English history[21] remembers the strange scene enacted in the monastery +of Caen in 1087, when William the Conqueror lay dead there, and the +ceremonials of his interment were interrupted by a weird appeal. Ascelin, +the son of Arthur, loudly claimed as his, neither sold nor given, the land +on which the church stood, and, forbidding the burial, he appealed to the +dead to do him justice. More than one[22] old English poem turned its plot +round the ancient canon law, by which a burial might be delayed for debt. +The dead was arrestable: a law afterwards set aside, "for death dissolved +all things." But in more codes than one death did not dissolve liability +for the consequences of high treason. + +In Scotland,[23] in the year 1320, at the "black parliament" of Scone, +several Scotsmen were convicted of conspiracy against King Robert the +Bruce. Most of them were drawn, hanged, and beheaded. But a Scottish +historian of the time tells us that Roger of Mowbray, one of the accused, +having died before his trial, "his body was carried to the place, +convicted of conspiracy, and condemned to be drawn by horses, hung on the +gallows, and beheaded." It is to the credit of Bruce that he did not allow +the corporal part of the sentence to be carried out, although many entries +in the charter rolls[24] shew that the consequent escheats of the +traitor's lands served to reward the loyalty of others. His body convicted +of conspiracy! How came this singular procedure into Scottish practice? + +In England, towards the close of the fourteenth century, although escheats +were not less keenly looked after than in Scotland--and that sometimes in +cases[25] where men had died unconvicted,--the purpose of attainder +appears to have been effected without the expedient of calling the dead to +the bar. The dead, however, was convicted. In the case of Robert +Plesyngton,[26] for instance, in 1397, the judgment of Parliament bore an +express conviction of treason, "_noun-obstant la mort de dit Roberd_." In +1400, John, Earl of Salisbury, challenged for treason by Lord Morley, was +killed before the day appointed for the duel. The court not only adjudged +him a traitor,[27] but on grounds eked out by Roman law subjected his +sureties in costs to his accuser--said costs including the handsome fee of +100s. and twelve yards of scarlet cloth to the lawyer Adam of Usk.[28] + +In all features save perhaps that of the actual presence of the body in +the trial, warrant can be found for the Scottish practice in Roman law. +The offence of "majesty," or high treason, formed an exception to the +great humane general rule that responsibility for crime ended with the +criminal's breath. Under the Lex Julia[29] death was no defence to a +charge of "majesty;" proceedings could be raised to stamp the dead man's +name with the brand of treason; his kinsmen might if they chose deny and +defend; but if they failed to clear him his goods were confiscated and his +memory damned. There is in the annals of Rome at least one instance[30] of +a death-sentence of this sort pronounced after the accused was in his +grave. Nor was its scope confined absolutely to high treason. The Church +had a quiet way of appropriating tit-bits of barbaric policy for pious +uses. The Emperor Theodosius[31] said that the inquisition for heresy +ought to extend to death itself; and as in the crime of majesty, so in +cases of heresy, it should be lawful to accuse the memory of the dead. The +Popes endorsed the analogy,[32] for heretics had goods, which sometimes +were worth forfeiting. The spiritual authority however was of more moment. +The Church claimed the power to bind and loose even after death,[33] and a +Welsh twelfth century bishop did not stand alone when he carried it so far +as to scourge the body of a king who had died excommunicate.[34] On the +same principle dead heretics--dead before sentence of heresy--were +burnt.[35] + +It was by a close following up of Roman jurisprudence, with, peradventure, +some added light from the law and practice of the Church, that the French +devised their _procés au cadavre_,[36] by which the memory of a dead +traitor was attacked. Its special application was to lesemajesty described +as divine and human, the former an elastic term covering offences against +God and religion. Allied to this latter category, though not exactly of +it, was the mortal sin of suicide. Self-slaughter was so deeply abhorrent +to medićval thought as not only to be reckoned more culpable, but to call +for more shameful punishment, than almost any other crime. So coupling the +traitor and the self-slayer in the same detestation, the law assailed both +by the same strange post-mortem process, and (by methods of reasoning +which Voltaire was one of the first to ridicule) consigned their souls to +perdition, their memories to infamy, and their bodies to the gibbet.[37] +The treatment of the suicide was peculiar in its refinements of symbolic +shame. The body was, by the customary law (for example, of Beaumont[38]), +to be drawn to the gibbet as cruelly as possible, _pour monstrer +l'experience aux aultres_. The very door-step of the house in which he lay +was to be torn up, for the dead man was not worthy to pass over it. +Impalement, transfixture by a stake, though well enough known on the +continent as a punishment of the living, became there and in England +alike, the special doom of the suicide. Yet the _procés au cadavre_ had no +footing in English law, and although it was already in 1320 received in +Scotland, we shall find reason for thinking it not wholly welcome. + +After the trial in 1320 before alluded to, the records in Scotland are +silent for over two centuries, and it is not until 1540 that the process +is heard of again. In that year[39] the heirs of one Robert Leslie were +summoned to the court of parliament to hear his name and memory "delete +and extinct," for certain points and crimes of lesemajesty, and his lands +and goods forfeited to the king. Legal authorities,[40] obviously +forgetful of the fourteenth century instance, follow one another in the +mistake of regarding Leslie's as the first of its kind. The legality of +the procedure was called in question at the time. Indeed, so loud was the +murmur that it can still be heard in the act passed to put it to silence. +"It is murmurit," says the enactment, "that it is ane noveltie to rais +summondis and move sic ane actioun aganis ane persoun that is deide, +howbeit the commoun law directly providis the samin."[41] The three +estates of parliament therefore on the motion of the lord advocate, +declared unanimously "all in ane voce, but[42] variance or discrepance," +that the cause was just and conform to common law. In another case of the +following year[43] the charge and judgment were enrolled in the Acts of +Parliament. The widow and the heir of the late James Colville were +summoned "to see and hear that the said deceased James, whilst he lived +had committed the crime of lesemajesty." The deliverance of parliament as +tribunal was by its terms an actual sentence upon the dead--that the +deceased James "hes incurrit the panis of crime of lesemajeste" for which +causes the court decerned "the memoure of the said umquhile James to be +deleit," and his possessions confiscated to the crown. + +Parliament which had unanimously voted the procedure well based in law, +found that it was dangerous. It was necessary to restrict its scope. In +1542, it is on parliamentary record[44] that "the lordis thinkis the said +act [_i.e._, of 1540], ower generale and prejudiciale to all the barions +of this realme." This would never do:--an act prejudicial to the barons! +So it became statute law in 1542, that it should apply only to cases of +grave treason, public and notorious during the offender's life, and that +prosecution for the future must be raised within five years after the +traitor's death. It was a reasonable restraint, not always observed. + +During the reigns of Mary and James VI. a number of trials occurred in +which this singular process was resorted to, and in some, if not all, of +which the body of the dead appeared at the bar. Occasionally it was +embalmed for the purpose.[45] It had been a part of the border code, +prevalent on the marches of England and Scotland, that an accused should, +although dead, be brought to the place of judgment in person. In 1249, the +marchmen of both realms had declared the law in that sense. They said +that, in any plea touching life and limb, if the defendant died the body +of him should be carried to the march on the day and to the place fixed +between the parties, because--concludes this remarkable provision[46]--"no +man can excuse himself by death." And in the end of the sixteenth century +the borderers had not forgotten the tradition their forefathers had +inherited in the thirteenth, for in 1597, when Scotsmen and Englishmen +were in fulfilment of their treaty obligations presenting their promised +pledges, the custom was scrupulously observed on the English side. All +were there,--all, though all included one that was no more.[47] "Thoughe +one of the nomber were dead, yet was he brought and presented at this +place." They evidently believed on the borders, which Sir Robert Cary with +some reason called[48] an "uncristned cuntry," that a man could best prove +that he was dead by attendance in person. + +In trials for treason this principle was pushed in some instances to +strange extremes. Probably one underlying reason of this, at a date so +late, was to make sure that no formality should be lacking to make the +forfeiture effective. But the main reason one must believe lay in its +being a traditional observance. In the trial in 1600, of the Earl of +Gowrie and his brother for an alleged attempt on the king's life, the +privy council on the preamble[49] that it was necessary to have their +corpses kept and preserved unburied, issued an act to that effect, and the +treasurer's accounts contain an entry "for transporting of the corpis of +Gowrie and his brother." Their bodies were accordingly produced at the +trial, and the sentence which pronounced them guilty of treason and +lesemajesty during their lifetime, declared[50] their name, memory, and +dignity extinguished, and ordained that "the dead bodeis of the saidis +Treatouris," should be hanged, quartered, and gibbetted. Their "twa +hedis," a grim diarist[51] tells, were set upon the tolbooth, "thair to +stand quhill[52] the wind blaw thame away." + +The last case[53] in the annals, in which this revolting Scottish +"practick" was put into effect, occurred in 1609. Robert Logan, of +Restalrig, had been nearly three years in his grave when it was given out +that he had been a party to the alleged Gowrie conspiracy against King +James. A process[54] was at once taken in hand to proscribe his memory and +escheat his property. As death was no excuse, neither was burial; and the +ghastly form was gone through of exhuming the bones for presentation at +the trial. It was a case plainly within the exception provided for in the +act of 1542, for the man was not "notourly" a traitor, he had died in +repute of loyalty: but the Crown was eager for a conviction. Much +incredulity had been rife with regard to the Gowrie conspiracy. The +evidences now adduced were--on the surface at any rate, although, perhaps, +as many critics still think, on the surface only,--circumstantial and +strong. The prosecution was therefore keenly pressed, and the reluctance +of some of the judges overcome. A jocular jurist-commentator on these +post-mortem trials, has remarked[55] that the bones of a traitor could +neither plead defences, nor cross-question witnesses. But in the dawn of +the seventeenth century they could turn the sympathy of the court against +the charge, as it appears they did in Logan's case. The proofs, however, +looked overwhelming, and the forfeiture was carried without a dissenting +voice from the bench--from the bench, because it was, as all Scots +treason-trials then were, a trial by judges only, not by judge and jury. +Logan's memory was declared extinct and abolished, and his possessions +forfeited. The judgment, however, wreaked no vengeance on the exhumed +remains. Humanity was asserting itself even in the trial of the dead, and +that institution itself was doomed. Although in disuse ever after, it did +not disappear from the theory of law until 1708, when the act 7 Anne, +chapter 21, prescribing jury-trial for treason, assimilated the Scots law +on the subject to that of England, and thus brought to an unregretted end +one of the most gruesome of legal traditions. + + + + +Island Laws. + +BY CUMING WALTERS. + + +A very curious and interesting phase of self-government is that which is +supplied by the independent legal system established in various small +islands in the United Kingdom. It is amusing to notice these little +communities on rocky islets tenaciously preserving their ancient +privileges, and revelling in the knowledge that they have a code of their +own by no means in harmony with the statute law of the country of which +they are an insignificant part. The tribunals and the legal processes in +the Channel Islands, in the Scilly Islands, in the Isle of Man, and even +in some of the smaller islands round the English coast, differ entirely +from those established in the motherland; and any suggestion of change is +warmly resented. In many cases it has not, of course, been worth while to +insist on reform, inasmuch as the islands are inhabited only by a few +families, who may be left in peace to settle their own differences if any +occur. + +There are a great many scattered islets about the sinuous line of Irish +coast, very few of which are ever visited by strangers. The conditions of +life in these isolated places are seldom investigated, and yet we find +there are some remarkable survivals of old customs and relics of ancient +laws. The people are independent, because they feel they are totally +separated from the mainland, and possess neither the means nor the desire +to cross over to it. They are in many respects a race by themselves, and +their attachment to their little homes of rock is such that one of their +severest punishments for offenders is to transport them to Ireland. Such +an island is Raghlin, or Rathlin, six miles distant from the north-west of +Antrim, but might be six hundred miles, judging by the slight intercourse +the handful of inhabitants has with the larger world. Another such island +is Tory, ten miles from the Donegal coast, where up to a few years ago the +dwellers were unacquainted with any other law than that of the Brehon +code. A visitor in 1834 found them choosing their own judge, and yielding +ready obedience to mandates "issued from a throne of turf." In this case, +and in the case of the Cape Clear islanders, it was found that the threat +of banishment to the mainland was severe enough to prevent serious crime. +These feelings probably have been modified in more recent times, yet the +intensity of the attachment of islanders to their native rock is one of +the ineradicable characteristics which account for the sturdy independence +manifested in their laws and customs. Their little homes are miniature +worlds which they prefer to govern themselves in their own way. We may +take the Scillies as a favourable example, where the natives cling to the +system of civil government by twelve principal inhabitants forming a Court +presided over by a military officer. The Court is held every month, and it +has jurisdiction in civil suits and minor causes. The Sheriff for Cornwall +has, or, at all events, had, no jurisdiction in the islands, though +persons prosecuted for felonies (which are extremely rare) have to be +relegated to the Assizes at Launceston. + +The patriarchal system has always been much in evidence in the small +Scotch islands, which, for the most part, are the possessions of the +descendants of feudal chieftains. Dr. Johnson adverted to this fact on the +occasion of his famous journey in the North:--"Many of the smaller islands +have no legal officers within them. I once asked, if a crime should be +committed, by what authority the offender could be seized, and was told +that the laird would exert his right; a right which he must now usurp, but +which merely necessity must vindicate, and which is therefore yet +exercised in lower degrees by some of the proprietors when legal process +cannot be obtained." But after observing how the system operated, Dr. +Johnson freely admitted that when the lairds were men of knowledge and +virtue, the convenience of a domestic judicature was great. Owing to the +remoteness of some of the islands and the difficulty of gaining access to +others, it was scarcely possible to bring them under the common law, and +we find that in some instances the proprietors were allowed to act as +magistrates by the Lord-Lieutenant's commission. Some of the old lairds +had a very effective but unjudicial method of enforcing their laws. Lord +Seaforth, High Chief of Kintail, was anxious to abolish a very odious +custom of woman-servitude which prevailed in the island of Lewis. The men +were wont to use the women as cattle, compelling them to draw boats like +horses, and, among other things, to carry men across the deep and +dangerous fords on their backs. This practice greatly disgusted Lord +Seaforth, who found, however, that it was one particularly hard to check. +He arrived one day on horseback at a stream which a peasant was +contentedly crossing, mounted on a woman's shoulders. When the middle of +the stream was reached, the laird urged his horse forward, and came up +with the couple, when by vigorously laying his whip about the back of the +man, he compelled him to dismount, and wade as best he could to the +opposite bank. This practical indication of the laird's wishes aided +considerably in producing a change. + +The Scotch islanders are a law-abiding people, and patriarchal government +sufficed. It was recorded of the inhabitants of Skye that, during a period +of unusual distress and semi-starvation, not a single sheep was stolen. So +keen is the sense of propriety in that island that a whole family has been +known to slink away, unable to bear the disgrace brought upon them by an +individual delinquent. Orkney and Shetland once possessed all the +characteristics of a separate kingdom, the laws of no other countries +being imposed upon them. There was none to dispute the laird's right, and +legal administration was entirely in his hands, except for the period that +the islands were placed under episcopal rule. It is worth noting that the +most famous of the governing bishops, Robert Reid (_tempus_ 1540), also +filled the high office of President of the Court of Session at Edinburgh, +and he and his successors are said to have ruled with conspicuous mildness +and equity. + +We may now turn to one or two English islands before devoting attention to +the most important examples of all--those supplied by the Isle of Man and +the Channel Islands. The Isle of Wight is only regarded as "separate" from +Hampshire for one legal purpose, so far as I have been able to ascertain. +It is part of the "county of Southampton" for all purposes except the +land-tax payment: for this it has a separate liability. But the land-tax +divisions are the most irregular, and the least uniform of any legal +divisions in the country, and it is therefore not surprising that the Isle +of Wight should in this respect be subject to peculiar usage. Purbeck is +one of those "isles" in England which now depend more upon tradition for +their designation, than natural accordance with the geographical +definition. What is remarkable is that these "isles"--such as the Isle of +Purbeck, the Isle of Ely, the Isle of Glastonbury, and the Isle of +Meare--nearly all have certain well-established and recognised laws of +their own for the little communities which dwell within their borders. The +quarrymen of Purbeck consider themselves a race apart, and their guild is +one of the closest and strictest character. Their homage is paid +exclusively to the lord of the manor, and the "Marblers" claim to have +received a special charter from King Edward. On Shrove Tuesday they elect +their officers, and celebrate the occasion by kicking a football round the +boundaries. One ancient custom observed on these occasions is to carry a +pound of pepper to the lord of the manor, as an acknowledgement to him in +respect to a "right of way." Until comparatively recent times the +government of the island was patriarchal in character. The Isle of +Glastonbury had its "House of Twelve Hides" for the trial of petty cases +in the locality, and tradition reports that unusually large dungeons were +prepared for the immuring of those who offended in the renowned Avalonian +isle. + +The Isle of Man, when subject to the Kings of Norway, was a subordinate +feudatory kingdom. It afterwards came under the dominion of the English +Kings, John and Henry III., but passed afterwards to the Scotch. Henry IV. +eventually claimed the little isle, and disposed of it to the Earl of +Northumberland, but upon this famous nobleman's attainder it went to Sir +John de Stanley. Its government seemed destined to be unsettled, however, +and though the title of king was renounced by the possessors of the land, +they maintained supreme and sovereign authority as to legal process. In +the Isle of Man no English writ could be served, and as a result it became +infested with smugglers and outlaws. This was unsatisfactory, and, in +1765, the interest of the proprietor was purchased, in order that the +island should be subject to the regulations of the British excise and +customs. + +According to Blackstone, than whom there could be no greater authority, +the Isle of Man is "a distinct territory from England, and is not governed +by our laws; neither doth an Act of Parliament extend to it unless it be +particularly named therein." It is consequently a convenient refuge for +debtors and outlaws, while its own roundabout and antiquated methods of +procedure have been found to favour the criminal rather than to aid +prosecutors and complainants. Perhaps this was never more vividly +illustrated than in the recent case of the murderer Cooper, who profited +by the cumbrous and lenient processes of Manx law to the extent of getting +an atrocious crime reduced to manslaughter. The laws have often been +amended. Prior to 1417 they were "locked up in the breasts of the +Deemsters," but Sir John Stanley found that so much injustice was being +done under the pretence of law, that he ordered a promulgation to be made. +But "breast laws" continued to be administered for another two centuries, +until Lord Strange, in 1636, commanded that the Deemsters should "set down +in writing, and certify what these breast laws are." In 1777, and also in +1813, the laws of the island were again amended, and every criminal was +allowed three separate and distinct trials before different bodies. First +the High Bailiff hears his case, then the Deemster and six jurymen, and, +thirdly, if he has been committed for trial, he is brought before the +Governor and the Deemsters. By the time the case gets to the final court +it has usually been "whittled down" to the smallest possible proportions, +and doubts have often been raised whether justice is not marred by +misplaced and unwarranted lenity. Another strange practice is that the +Manx advocates combine the parts of barrister and attorney. The law is +hard upon debtors, who can be lodged as prisoners in Castle Rushen, if it +is suspected that they are about to leave the island; but there are no +County Courts. On the other hand, there are Courts of Law of almost +bewildering variety--the Chancery Court, the Admiralty, the General Gaol +Delivery, the Exchequer, the Ecclesiastical, the Common Law, the two +Deemsters' Courts for the north and south of the island, the Seneschal's +Court, the Consistorial, the Licensing, and the High Bailiff's. Each +sheading, or subdivision, has its own coroner or sheriff, who can appoint +a "lockman" as his deputy; and each parish (there are seventeen) has its +own captain and a "sumner," whose duty in old times was to keep order in +church and "beat all the doggs." Manx law had, and perhaps to some extent +still has, a similar reputation either for allowing criminals in the +island to escape easily, or for permitting English criminals to remain +unpunished; hence the old ribald verse which represents the Devil +singing-- + + "That little spot I cannot spare, + For all my choicest friends are there." + +The Deemster's oath is a curiosity in itself:--"I do swear that I will +execute the laws of the isle justly betwixt party and party as +indifferently as the herring's backbone doth lie in the midst of the +fish." Formerly the elective House of Keys possessed judicial as well as +legislative functions, but this power was taken from it by the Act of +1866. Laws are initiated in the Council and the Tynwald Court, which +promulgates them, consists of the members of the Council, and the House of +Keys, who unite for the occasion. Tynwald Day as described by Mr. Hall +Caine is an interesting, historic, but not an impressive ceremony. A +thousand years ago the Norsemen established a form of government on the +island, and every fifth of July the Manxman has his open-air Parliament +for the promulgation of laws. But it is a gala day rather than a day of +business. "Reluctantly I admit," writes Mr. Hall Caine, "that the +proceedings were, in themselves, long, tiresome, ineffectual, formless, +unimpressive, and unpicturesque. The senior Deemster, the amiable and +venerable Sir Wm. Drinkwater, read the titles of the new laws in English. +Then the coroner of the premier sheading, Glenfaba, recited the same +titles in Manx. Hardly anybody heard them; hardly anybody listened." + +The Channel Islands were part of the Duchy of Normandy, and their laws are +mostly the ducal customs as set forth in an ancient book known as "Le +Grand Coustumier." Acts of the English Parliament do not apply to these +Islands unless specifically mentioned, and all causes are determined by +their own courts and officers. In Mr. Ansted's standard work on the +Channel Islands (revised and edited by E. Toulmin Nicolle, 1893), a long +chapter is devoted to the whole subject, and it is so complete and well +expressed that I venture without much alteration of phraseology to +summarise its leading points. Jersey and Guernsey have diverged greatly +from each other in their legal customs, and it is also curious to find +that each of the smaller islands possesses its own particular +constitutions and courts. The rights and customs of the "States," which +are an outcome of the medićval Royal Court, have constantly undergone +modification and have been remodelled, but they retain many of the ancient +characteristics. The Bailiff (_Bailli_), or chief magistrate, is the first +civil officer in each island, and usually retains his office for life. He +presides at the Royal Court, takes the opinions of the elected Jurats, and +when their voices are equal has a casting vote both in civil and criminal +cases. The Bailiff is not required either in Jersey or Guernsey to have +had a legal education. He is appointed by the Crown, but has usually held +some position at the island bar. Formerly the advocates practising in the +court of Jersey were nominated by the Bailiff, and were limited to six in +number. In 1860, however, the bar was thrown open to every British subject +who had been ten years resident in the island, and who was qualified by +reason of being a member of the English bar, having taken a law degree at +a French University, and having passed an examination in the island. In +Guernsey the advocates are also notaries, and frequently hold agencies. +The judicial and legislative powers in Jersey are to some extent separate, +but in Guernsey they are intimately associated--a fact which accounts for +much of the difference in custom in the two islands. + +The ancient Norman law contained in "Le Grand Coustumier" dates back to +the thirteenth century, was badly revised in the time of Queen Elizabeth, +and became the Code. Trial by jury was established in 1786, and the laws +on the subject have undergone considerable change. There is a committing +magistrate, and the trial takes place at the Criminal Assizes of which +there are six in the year. The jury numbers twenty-four; if twenty agree, +the verdict is taken; if less than twenty the prisoner is set free. Minor +offences are referred to a court of Correctional Police presided over by a +magistrate who is independent of the Royal Court. The same magistrate +presides over the court for the recovery of small debts, and there is no +appeal from his decision. Then there are subsidiary courts for various +police purposes, while the Court of Héritage entertains suits regarding +real estate. The arbitrary operation of these Courts may have very evil +results, especially for strangers who are unlearned in the peculiarities +of Jersey law. I find a striking example of this in a magazine of June +15th, 1861, in which a hard experience is detailed with comments which +appear to be fully justified by the circumstances. The writer says:-- + +"Before leaving England I had had a serious quarrel with a former friend +and medical attendant, and no long time elapsed after our arrival in the +island, before this gentleman sent me in a bill of monstrous +proportions--a true 'compte d'apothecaire' as the French express it. At +that time I was quite ignorant of the singular constitution of Jersey +law, and how it placed me in the power of any man who chose to sue me +whether I owed him money or not. I wrote to the doctor, refusing to pay +the full amount of his claim, and referring him to a solicitor in London. +He was, however, better acquainted with the Jersey law than myself, as the +result will show. Here, before proceeding with my story, I will enter into +some explanation of the law of debtor and creditor as it exists in Jersey. +This law enables the creditor to enforce his demands summarily, depriving +the party sued of his liberty, and leaving him in gaol till the costs of +his imprisonment have swelled the amount to be paid: and further, +supposing the defendant ultimately gains his suit, and proves his +non-liability, no damages for false imprisonment are obtainable. The law +leaves him no remedy, for the plaintiff makes no affidavit; and a simple +letter from England, requesting a Jersey advocate to enforce payment of a +claim, is enough to cast the defendant at once into prison, prior to any +judicial investigation into the merits of his case. + +"Thus, in Jersey, every man (unless he be a landed proprietor) is at the +mercy of every other man, both in the island and out of it. In short, one +man can arrest another simply by drawing up an imaginary account on a +common bit of paper, and handing it to the nearest lawyer, who will send +his clerk with the sheriff's man and imprison the unfortunate victim in +default of immediate payment. What is worse still, an arrest can be +carried into effect, by means of a simple letter sent through the post. +The exception in favour of land-owners of course includes the owners of +house property, an exception which mostly benefits Jersey-men, as few but +natives possess property in the island. It is only a proprietor who must +be sued _before_ he can be imprisoned. If the Jersey laws confined the +persons merely of strangers sued by the inhabitants of the island, in the +arbitrary manner described, the justice of such a practice might still be +defended on the plea of preventing them from leaving the island; but no +excuse can be found when the Jersey law is made an instrument in the hands +of strangers, living out of the jurisdiction of the island, and when it is +used to enforce payment of debts incurred in another place, and in which +no inhabitant of the island is interested, and when (as sometimes happens) +it is employed as a means of extortion. In the first case it can be urged +that, at least, it gives protection to the islander, which may be all +proper enough, though the system is liable to abuse. In the second, the +injustice and folly of the law is flagrant. By what right or reason ought +the Jersey code, without previous inquiry, to deprive one man of his +liberty at the demand of another, when both are strangers, and when the +dispute relates to matters wholly beyond its pale, and in reference to +which it has no means of obtaining information on oath? Yet such is the +case, and thus the Jersey law is converted into a mere tool of iniquity +and oppression. In speaking of this strange anomaly in Jersey law, I am +not referring to bills of exchange, or to securities of any sort, but +merely to simple debts, free from any acknowledgment or signature +whatever. In any other Court, such claims would not be entertained for a +moment. Surely the law is barbarous enough for the people of Jersey, +without its consequences being extended beyond its circumference. But, as +matters stand at present, the case stands thus: A and B fall out together. +Now B is a rogue. They go to law together, and B demands of A more than he +is entitled to. The courts in England are about to decide upon the merits +of the case. Meanwhile B learns that A is gone to Jersey for a short time +on business, perhaps connected with this very affair, such, for instance, +as looking up an important witness. What does B do? He immediately sends +off a letter enclosing his little account to a Jersey lawyer, instructing +him to demand payment or lock up A forthwith. The lawyer obeys, of course; +A storms--protests--all in vain. He is incarcerated, and is told he may +explain as much as he likes afterwards; but, in the meantime, must go to +prison, or _pay_. At last poor A, whose liberty is important to him, +wearied with the delays which it is the interest of the Jersey lawyers to +raise in his suit for judgment, pays the demand into court (au greffe) to +be adjudicated on--costs of law, costs of imprisonment and all. The latter +item includes 10s. every time the prison door is opened to let him pass on +his way to court--a journey he has too often to perform without much +approach to a _dénoűment_, and whither he is obliged to go under escort +like a criminal; and this process is repeated several times, without the +cause even being called on for hearing. Worst of all, when A comes out, he +has to decide upon the merits of the case. Meanwhile no remedy against B, +who, of course, being satisfied, withdraws his suit at home." + +Another seeming anomalous process may be cited. An appeal lies from some +of the small Courts to the full Court, or _Nombre Supérieur_, but the +jurats who sit in the Court of First Instance are not debarred from +sitting in the Full Court when an appeal from their own judgment is being +heard! All the proceedings are carried on in the French language, which is +again extremely inconvenient for the English residents. The Bailiff +comments on the evidence and on the arguments of the pleaders, collects +the opinion of the jurats, and delivers judgment. In Guernsey the +decisions are given in private. "Pleadings in these courts are very +simple," says Mr. Ansted. "The plaintiff must serve on the defendant a +summons or declaration, setting forth the nature of his claim, and in some +cases the reasons on which it is grounded are added. If not sufficiently +definite the declaration is sent back by the Court for amendment. If the +defendant means to plead any objections by way of demurrer or special +plea, these are at once heard and disposed of. If the parties join issue +on the merits of the case, the Court hears the parties, or their counsel, +and decides. If the case be intricate the parties are sometimes sent +before the Greffier--in Guernsey before one of the jurats,--who reports, +condensing the matter in dispute, and presenting the points to the court +for decision." Trial by jury does not exist in Guernsey. The court at +Alderney is subordinate to that of Guernsey. The jurisdiction in matters +of correctional police is final where the offence can be punished by a +month's imprisonment or a fine not exceeding Ł5; otherwise it is referred +to Guernsey for trial. The Court of Sark, which has undergone many strange +vicissitudes since its institution in 1579, consists of the seneschal, or +judge, the prévôt and the greffier, all appointed by the feudal lord, or +seigneur. The seneschal is an absolute authority in small cases, but his +right of punishment is limited to the narrow bounds of inflicting a fine +of about four shillings, and of sentencing to three days' imprisonment. +All cases demanding severer treatment are relegated to the Guernsey +Courts. Enough has been said to show that Mr. Ansted was justified in +declaring that though the islanders were unfitted by their habits and +education for any radical change in their peculiar institutions, yet "the +practice of the law courts both in Jersey and Guernsey has long been felt +to be in many cases cumbrous, not to say objectionable. Indeed, where so +much that is personal interferes in the administration of justice, and +where personal and family influence cannot but be felt, it is not +astonishing that reasonable complaints are sometimes heard." Three times +during the present century Royal Commissions have enquired into Jersey +law, but their recommendations have been systematically ignored. No +remedies have been carried out, and the islanders cling with extraordinary +pertinacity to customs which are notoriously abused and to priveleges +which are opposed to fair-dealing. The Channel Islands and the Isle of Man +are standing evidence of the danger incurred by such independence of legal +authority as they have hitherto been permitted to enjoy. + + + + +The Little Inns of Court. + + +The origin of the decadent institutions located in certain grim and +dreary-looking piles of building dotting the district of the Inns of Court +proper, and known as the little Inns of Court, is involved in considerable +obscurity. They appear to have originally held a similar position to the +great seats of legal education as the halls of Oxford and Cambridge do to +the Universities. But at the present time their relation to the Inns of +Court proper is not very clear, and the uses they serve, otherwise than as +residential chambers, are just as hard to discover. This state of +mistiness concerning them has existed so long that no one now seems to +know anything about them, and the evidence taken more than forty years ago +by a Royal Commission did so little to clear away the dust and cobwebs +hanging about them that they still remain, in the words of Lord Dundreary, +"things that no fellow can understand." + +Lyon's Inn has since that time been swept away to make room for the new +Courts of Law, without any person evincing the smallest interest in its +fate. Concerning this institution all that could be learned by the Royal +Commission was contained in the evidence of Timothy Tyrrell, who +"believed" that it consisted of members or "ancients," he could not say +which; he believed the terms were synonymous. There were then only himself +and one other, and within his recollection there had never been more than +five, and they had nothing to do beyond receiving the rents of the +chambers. There were no students, and the only payment made on account of +legal instruction was a sum of Ł7 13s. 4d. paid to the society of the +Inner Temple for a reader; but there had been no reader since 1832. He had +heard his father say that the reader "burlesqued the things so greatly" +that the ancients were disgusted, and would not have another. There was a +hall, but it was used only by a debating society; and there was a kitchen +attached to it, but he had never heard of a library. + +New Inn appears to have been somewhat more alive than Lyon's, though it +does not seem to have done any more to advance the cause of legal +education. The property is held under the society of the Middle Temple, +by a lease of three hundred years from 1744, at a rent of four pounds a +year. Among the stipulations of the lease is one allowing the lessors to +hold lectures in the hall, but none had been held since 1846, in +consequence, it was believed, of the Middle Temple ceasing to send a +reader. The lectures never numbered more than five or six in a year; and +there is now no provision of any kind for legal education. Samuel Brown +Jackson, who represented the inn before the Royal Commission, said he knew +nothing concerning any ancient deeds or documents that would throw any +light on the original constitution and functions of the body. If any there +were, he "supposed" they were in the custody of the treasurer. The only +source of income was the rents of chambers, which then amounted to between +eighteen and nineteen hundred pounds a year; and the ancients have no +duties beyond the administration of the funds. + +Concerning the origin of Clement's Inn, Thomas Gregory, the steward of the +society, was unable to afford full information, but he had seen papers +dating back to 1677, when there was a conveyance by Lord Clare to one +Killett, followed by a Chancery suit between the latter and the principal +and ancients of the society, which resulted in a decree under which the +property so conveyed became vested in the inn. Some of the papers relating +to the inn had been lost by fire, and "some of them," said the witness, +"we can't read." The inn, he believed, was formerly a monastery, and took +its name from St. Clement. It had once been in connection with the Inner +Temple, but he could find no papers showing what were the relations +between the two societies, "except," he added, "that a reader comes once a +term, but that was dropped for twenty years--I think till about two or +three years ago, and then we applied to them ourselves, and they knew +nothing at all about it; the under-treasurer said he did not know anything +about the reader, and had forgotten all about it." It was the custom for +the Inner Temple to submit three names to the ancients; and, said the +witness, "we chose one; but then they said that the gentleman was out of +town, or away, and that there was no time to appoint another." But no +great loss seems to have resulted thereby to the cause of legal education, +for it appears that all a reader had ever done was to explain some recent +Act of Parliament to the ancients and commoners, there being no students. +The inn had no library and no chapel, but as a substitute for the latter +had three pews in the neighbouring church of St. Clement, and also a +vault, in which, said the witness, "the principals or ancients may be +buried if they wish it." + +Some remarkable evidence was given concerning Staples Inn, and the more +remarkable for being given by Edward Rowland Pickering, the author of a +book on the subject, which publication one of the Commissioners had before +him while the witness was under examination. "You state here," said the +Commissioner, "that in the reign of Henry V., or before, the society +probably became an Inn of Chancery, and that it is a society still +possessing the manuscripts of its orders and constitutions." "I am +afraid," replied the witness, "that the manuscript is lost. The principal +has a set of chambers which were burnt down, and his servant and two +children were burnt to death, seventy years ago; and I rather think that +these manuscripts might be lost." Where the learned historian of the inn +had obtained the materials for that work is a question which he does not +appear to have been in a position to answer; for when asked whether he +knew of any trace of a connection between the society and an Inn of Court, +he replied, "Certainly, I should say not. It is sixty years since I was +there, boy and all." A very strange answer considering the statement in +his book. During the sixty years he had been connected or acquainted with +the society, he had never heard of the existence of a reader, or of any +association of the inn with legal education or legal pursuits. The only +connection claimed for the inn by the principal, Andrew Snape Thorndike, +was that, when a serjeant was called from Gray's Inn, that society invited +the members of Staples Inn to breakfast. There is a singular provision +respecting the tenure of chambers in this inn by the ancients. "A person," +said this witness, "holds them for his own life, and though he may be +seventy years of age, if he can come into the hall, he may surrender them +to a very young man, and if that young man should live he may surrender +them again at the same age." If a surrender is not made, the chambers +revert to the society. + +Barnard's Inn is a very old one, and the property has been held on lease +from the dean and chapter of Lincoln for more than three hundred years. +The society consists of a principal, nine ancients, and five companions, +which latter are chosen by the ancients; but we fail to gather from the +evidence of Charles Edward Hunt, treasurer and secretary of the inn, by +what principles the ancients are guided in the selection. We learn, +however, that applications for admission by solicitors are not allowed. +Such a thing had occurred once, but it was as long ago as 1827, and "of +course," said the witness, "we refused him, and he applied to the court, +and after some difficulty he got a rule _nisi_ for a mandamus. It came on +to be tried before Lord Tenterden, and Lord Tenterden said it could not be +granted; that we were a voluntary association, and the court had no +jurisdiction." The applicant seems to have based his claim on the ground +that Barnard's was an Inn of Chancery, and that, as a solicitor, he had a +right to be admitted. The matter was scarcely worth contention, as the +privileges of the companions are confined to dining in hall and the chance +of being made an ancient, that favoured grade being entitled to "their +dinners and some little fees." The books of the society showed no trace of +there ever having been any students of law connected with the inn. "The +oldest thing I find," said the witness, "is that a reader came +occasionally from Gray's Inn to read; but what he read about, or who paid +him, there is no minute whatever." He did not know when a reader last came +from Gray's Inn; he thought it was about two hundred years ago. It only +remains to be told of Barnard's Inn that it has not even a library; there +had been a few books at one time, the witness told the Commission, but +they were sold as useless! + +Concerning the remaining little inns--Clifford's, Symond's, and +Furnival's--no evidence was taken. They appear to be merely residential +chambers, much the same as some of those concerning which we have +information in the report of the Royal Commission and the evidence given +before it, and the chambers are far from being used exclusively by members +of the legal profession. Nearly sixty years ago the present writer found a +retired army officer occupying chambers in Clifford's, and on a later +occasion made at Symond's Inn, the acquaintance of a curate who resided +there with his wife and a young family! Concerning Furnival's Inn, it was +incidentally stated by Michael Doyle, who represented Lincoln's Inn +before the Royal Commission, that the latter society received Ł576 a year +under a lease of the former property granted to the late Henry Peto for +ninety-nine years, Ł500 being for rent, and the remainder in lieu of land +tax. The witness was, however, unable to give any information as to the +manner in which, or the date when, the property was acquired by Lincoln's +Inn. + +The inquiry by the Royal Commission resulted in the recommendation of some +very important changes in the constitution of the little Inns of Court and +the administration of the several properties; but these, we learn, have +been modified so much in their adoption as to have been of very little +value. The societies have long outlived the purposes for which they were +instituted, though their principals and officials seem to attach +considerable importance to their continued existence. It is probable, +however, that their _raison d'étre_ being gone, they will all sooner or +later go the way of Lyon's Inn, and become things of the past. + + + + +Obiter. + +BY GEORGE NEILSON. + + +The claims of the legal profession to culture were cleverly belittled by +Burns, when he made the New Brig of Ayr wax sarcastic over the town +councillors of the burgh:-- + + "Men wha grew wise priggin owre hops an' raisins, + Or gathered lib'ral views in Bonds and Seisins." + +Bonds and seisins are certainly not the happiest intellectual feeding +ground. "I assure you," said John Riddell, a great peerage antiquary, +"that to spend one's time in seeking for a name or a date in a bit of +crabbed old writing does not improve the reasoning powers." Riddell was a +keen critic of Cosmo Innes, who subsequently had the happiness of passing +the comment upon Riddell's observation that "perhaps it is not in +_reasoning_ that Mr. Riddell excels." Yet the annals of the law shew many +splendid examples of the union of close textual study of manuscript, with +an enlarged outlook on first principles and with keen critical insight. +Perhaps Madox was a more permanently serviceable scholar than Selden. One +can see from Coke's margins, his infinite superiority to Bacon in exact +knowledge at first hand of older English law. But when all is said, we +could have done much better without Coke and Madox than without Bacon or +Selden. It is delightful to be able to appeal to Chaucer for perhaps the +most emphatic compliment to law, in respect to its capacity for +literature, that it has ever received. Amongst all the Canterbury +pilgrims, there was no weightier personage than the Man of Law:-- + + "Nowher so bisy a man as he ther nas, + And yet he semed bisier than he was. + In termes hadde he caas and domes alle + That from the tyme of King William were falle, + Therto he coude endyte and make a thing + Ther could no wight pinche at his wryting, + And every statut coude he pleyn by rote." + +Yet it was this learned and successful counsel, alone of the party, who +knew the poet's works through and through, and had the list of them at his +finger-ends. Good Master Chaucer for this touch we offer hearty thanks! +Was it in Herrick's mind when he penned his fine tribute to Selden? + + "I, who have favoured many, come to be + Graced, now at last, or glorified by thee." + + * * * * * + +Wits and poets have had many hard things to say in jest and in earnest +about the legal profession and its work. Herrick bracketed law and lawyers +with diseases and doctors, in a fashion hinting that the relation of cause +and effect existed between both pairs:-- + + "As many laws and lawyers do express, + Nought but a kingdom's ill-affectedness. + Even so those streets and houses do but show + Store of diseases where physicians flow." + + * * * * * + +It was an old story this linking of the practitioners of law and medicine +in one yoke of abuse. The reason given for both categories in early satire +is sufficiently curious. It was because they took fees! Walter Map +declared the Cistercian creed to be that no man could serve God without +mammon. Ancient satire equally objected to the service of man, either +legally or medically, under these conditions. "The Romaunt of the Rose" +has the traditional refrain of other strictures in verse, when it declares +that + + "Physiciens and advocates, + Gon right by the same yates, _yates, gates_ + They selle hir science for winning. _winning, gain_ + + * * * * * + + For they nil in no maner gree _no kind of good will_ + Do right nought for charitee." + +The same idea, precisely, finds voice in the poem attributed to Walter +Map, wherein the doctor and the lawyer come together under the lash, +because no hope can be based upon either of them unless there be money in +the case. "But if the marvellous man see coin, the very worst disease is +quite curable, the very falsest cause just, praiseworthy, pious, true, and +pleasing to God." Perhaps these ancient sarcasms were keener on the leech +than the lawyer. "The Romaunt of the Rose" goes so far as to say that if +the physicians had their way of it, + + "Everiche man shulde be seke, + And though they dye, they set not a leke + After: whan they the gold have take + Ful litel care for hem they make. + They wolde that fourty were seke at onis! + Ye, two hundred in flesh and bonis! + And yit two thousand as I gesse + For to encresen her richesse." + + * * * * * + +No doubt the men of medicine would have been much more vulnerable on +another line, for it was no satirist but a learned medical professor, +Arnauld de Villeneuve, who, in the beginning of the fourteenth century, +advised his students as follows:--"The seventh precaution," said he, "is +of a general application. Suppose that you cannot understand the case of +your patient, say to him with assurance that he hath an obstruction of the +liver." No legal professor surely was ever guilty of the indiscretion of +_saying_ such a thing as this! + + * * * * * + +The ineradicable public prejudice against legal charges as flagrantly +exorbitant is only a modified form of an older idea exemplified above that +lawyers should have no fees at all. And as to this day the plain man has +never fully reconciled himself to the doctrine that the lawyer is only an +agent, and not called upon to sit in the first instance in judgment on his +client, so in the past the professional defence of a criminal appeared a +very venal transaction. + + "Thow I have a man i-slawe, + And forfetyd the kynges lawe + I sal fyndyn a man of lawe + Wyl takyn myn peny and let me goo." + + * * * * * + +How reprehensible a thing to take fees was long reckoned admits of curious +illustration. "Before the end of the thirteenth century," says that +never-failing authority, Pollock and Maitland's "History of English Law," +"there already exists a legal profession, a class of men who make money +by representing litigants before the courts and by giving legal advice. +The evolution of this class has been slow, for it has been withstood by +certain ancient principles." Amongst these retarding influences lay the +half-religious scruple about the propriety of payment--men as usual +swallowing the camel first and straining at the gnat afterwards. Of course +the subject had to be illuminated by monkish tales and death-bed +repentances. There was, according to the Carlisle friar who penned the +"The Chronicle of Lanercost,"--writing under the year 1288,--a young clerk +in the diocese of Glasgow, whose mind "was given rather to the court of +the rich than to the cure of souls. He was called Adam Urri, and was +laically learned in the laic laws, disregarding the commands of God +against the Praecorialia [so in the printed text, but, query, +Praetorialia?] of Ulpian. He used the statutes of the Emperor in +litigating causes, for payment of money. But when he had grown old and +famous in this his wickedness, and was striving by his astuteness to +entangle the affairs of a poor little widow, the divine mercy laid hold on +him, assailing his body with sudden infirmity, and bringing his mind to +plead (_enarraret_) more for another life." Condemning utterly the +lawyer's court, he turned over a new leaf, predicted the day of his own +death, and died punctually conform to the prophecy, leaving an example +unctuously used by the friar to teach future generations "how wide was the +gulf betwixt the service of God and the vanity of this world." We shall +not be far wrong in regarding, as of more historic interest, the +indication of the immorality of fees, and the important reference to +Ulpian as an authority in the _forum causidicorum_ of thirteenth century +Scotland. + + * * * * * + +Amongst the amiable conceptions of the middle age was the notion that the +Evil One often manifested a particular zeal against sin. He was regarded +with a different eye from that with which we regard him, and he rewarded +faith with actual appearances such as only spiritualists can now-a-days +command. Some of them were not very engaging, however praiseworthy may +have been their object and occasion. Simeon of Durham, an eminently +respectable contemporary author, wrote of the death of King William Rufus +in the year 1100 that the popular voice considered the wandering flight of +Tyrell's arrow a token of the "virtue and vengeance of God." And he added +that about that time the Devil had frequently shewn himself in the woods +"and no wonder, because in those days law and justice were all but +silent." The logic of this _because_, not apparent on the surface, becomes +less obscure when it is remembered that in the medićval devil the +character of Arch-Enemy is so much subordinated to that of Arch-Avenger. + + * * * * * + +The direct relation of not only the Saints but of the Deity itself to +human affairs was a conception so clear to the medićval mind that it saw +nothing irreverent in a title deed being taken in the Supreme name, or in +marshalling "_Deus Omnipotens_" at the head of the list of witnesses to a +charter. This anthropomorphic practice gave occasion to one of the +sharpest of Walter Map's jokes against the Cistercians. Three abbots of +that order petitioning on behalf of one of their number and his abbey for +the restoration of certain lands by King Henry II. as having been +injuriously taken away from the claimant's abbey, represented to the King +in his court that for God's sake he ought to cause the lands to be +restored and they assured him and gave him God himself as their guarantor +(_fidejussorem_) that if he did, God would greatly increase his honour +upon earth. King Henry found it difficult to resist the appeal thus made +to him but called the Archdeacon Walter Map to advise. This he did +well-knowing that this counsellor did not love the Cistercians, and that +he might thus find a creditable way out of a tight corner. The Archdeacon +was equal to the occasion. "My lord," said he to the King, "they offer you +a guarantor; you should hear their guarantor speak for himself." "By the +eyes of God," replied Henry, "it is just and conform to reason that +guarantors themselves should be heard upon the matter of their guarantee." +Then rising with a gentle smile (not a grin, expressly says Giraldus +Cambrensis) the shrewd monarch retired leaving the disappointed abbots +covered with confusion. + + * * * * * + +Of the many ties between literature and law, one, not by any means the +least interesting on the list, is the quantity of legal citations, +phrases, metaphors and analogies which got swept into the wide nets of the +poets. Amongst such scraps there are few so successful and still fewer so +pathetic as one in which a metrical historian, drawing near the close, +both of his days and his chronicle, figured himself as summoned on short +_inducić_ at the instance of Old Age to appear at a court to answer +serious charges, where no help was for him save through grace and the +Virgin as his advocate. + + Elde me maistreis wyth hir brevis, _elde, age_ + Ilke day me sare aggrevis, _brevis, writ_ + Scho has me maid monitioune _ilke, each_ + To se for a conclusioune _quhilk, which_ + The quhilk behovis to be of det; _of det, of right_ + Quhat term of tyme of that be set + I can wyt it be na way, _wyt, know_ + Bot weill I wate on schort delay + At a court I mon appeire + Fell accusationis thare til here + Quhare na help thare is bot grace. _bot, without_ + The maikless Madyn mon purchace _maikless, matchless_ + That help; and to sauff my state _purchace, procure_ + I haiff maid hir my advocate. _sauff, save_ + +Androw of Wyntoun's verse it must be owned was verse on the plane of a +notary public, and oft the common form of legal writ supplied sorrily +enough the deficiencies of his imagination. But here for once the simple +dignity of the thought bore him up and carried him through. + + + + +Index. + + + Aberdeen, gipsies at, 175 + + Abjuring the realm, 15 + + Abjuration, 69 + + Abolishing right of Sanctuary, 16 + + Adultery, penalty of, 11 + + Africa, ordeal in, 24-25 + + Amphitheatre, sports of, 112 + + An eye for an eye, 137 + + Ancient tenures, 93-108 + + Andrews, William, Cock-Fighting, 196-200 + + Anglo-Saxon Church, 14 + + Aram, Eugene, 212 + + Ashford, Mary, 40-41 + + Asyla in Greece, 14 + + Axon, W. E. A., Sanctuaries, 13-22; + Laws relating to the Gipsies, 165-178 + + + Babylonia, law of, 3-4 + + Balance, ordeal of, 27 + + Barbarous Punishments, 132-148 + + Barnard's Inn, 263 + + Beetles, trial of, 157 + + Begbie, William, murder of, 210 + + Beverley, Sanctuary at, 19-20 + + Bible Law, 1-12 + + Bible, ordeal of the, 37 + + Bible, weighing against, 27 + + Bier, ordeal of, 36 + + Bird, Robert, Cockieleerie Law, 200-204 + + Biretta, 53 + + Black Book of Hereford, 101 + + Black Parliament, 225 + + Blood, laws written in, 135; + stains, 222 + + Boiling to death, 135 + + Book of Common Prayer, abolished, 194 + + Borough English, 104-106 + + Breaking straws, 48; + rods, 49 + + Buccleuch, Barons of, 107 + + Bull relating to English Sanctuaries, 15 + + Bull, trial of, 150 + + Burned alive, 134 + + Burgess, S., Bible Law, 1-12 + + + Canning, Elizabeth, 172-173 + + Canon Law, 187, 225 + + Castles, a centre of power, 74 + + Cattle stealing, 74 + + Channel Islands, Laws of the, 242-243, 248-257 + + Charges, prejudice against, 271 + + Charles I., Trial of, 182 + + Chaucer's compliment to the law, 268 + + Cheltenham, Manor of, 94 + + Chemical test, 220 + + Christians, early punishment of, 137 + + Church and ordeals, 29 + + Clarke, Sidney W., Barbarous Punishments, 132-144 + + Clement's Inn, 260 + + Cock-Fighting in Scotland, 196-204 + + Cockieleerie Law, 200-204 + + Cock, tried for laying an egg, 154 + + Commonwealth Law and Lawyers, 178-196 + + Continental Feudalism, 77-82 + + Conveyancing Symbols, 50-51 + + Copyhold, 49, 83 + + Corsnedd, ordeal of, 35 + + Commandments, breaking, 3 + + Cross, ordeal of the 33 + + Crown, 56 + + Coventry Acts, 142-143 + + Court Baron, 84 + + Customary Court, 84 + + Crucifixion, 136 + + + Dead bodies brought to place of judgment, 232 + + Debts, limitation of, 9 + + Declining knighthood, 63-64 + + Defilement, 8 + + Delivery of turf or twig, 50 + + Deposition of kings, 56 + + Devices of the Sixteenth Century Debtors, 161-164 + + Divine right of kings, 193 + + Dog carrying, 140 + + Dogs in recognition of tenure, 101 + + Dream evidence, 214-217 + + Dudley lands, 64 + + Durham Sanctuary, 17, 19 + + + Escheats, 226 + + Emma, Queen, tried by ordeal, 30 + + Englishry, law of, 70 + + Executing gipsies, 167, 170 + + + Failure to extripate gipsies from England, 170 + + Fatal Links, 205-223 + + Father, powers of, 9 + + Ferocity of forest laws, 119 + + Feudal lord, powers of the, 64 + + Feudal system, 58-62 + + Fining jurymen, 124 + + Fire ordeal, 28 + + Flagellation, 61 + + Flags, rendering for tenure, 101 + + Forests, great, 115-116 + + Forgery, punishments, 142 + + Fortune telling, 169 + + France, penal laws of, 140-141; + Trials of animals in, 149-154 + + Frankalmoign, 103 + + Free alms, 103-104 + + Fridstools, 17, 20 + + Frost, Thomas, Trial by jury in Old Times, 122-131; + Trials of animals, 149-160; + Little Inns of Court, 258-266 + + Furnival's Inn, 265 + + + Gavelkind, 106-107 + + Ghosts, 217-220 + + Gibbet, gipsy rescued from, 176 + + Gipsies, laws relating to the, 165-178 + + Glove, 92 + + Godiva story, 74 + + Grand Serjeantry, 100 + + Great Civil War, 179 + + Greenacre case, 209 + + + Hampden, John, 182 + + Hanged, drawn, and quartered, 133-134 + + Hasp and staple symbol, 52-53 + + Hat as a symbol, 53-54 + + Hawaii, ordeals in, 25 + + Henry VIII., laws against gipsies, 169 + + Hereford Fair, 101 + + Heresy, 228 + + Heriots, 91-92 + + Herrick on lawyers, 269 + + High treason, trial for, 122-124; + punishments for, 132-135 + + Hindoos, ordeals of the, 26-27 + + Holzmann, Maria Ann, murder of, 206-209 + + Homage, 53 + + Homicide, 11 + + Horse, trial of, 151 + + Hot iron, ordeal of, 27, 30, 31, 32 + + Howlett, England, the Manor and Manor Law, 83-94; + Ancient Tenures, 95-108 + + Hugh of Avalon, 120 + + + Ignorance, sin of, 7 + + Iniquities, legal, 145 + + Irish Island Laws, 238-239 + + Isle of Man, Laws of the, 243-247 + + Island Laws, 237-257 + + + Jews, extortions of, 73 + + Jocular tenure, 102 + + + King's power limited, 12 + + Knight, service of, 96 + + + Lanercost, the chronicle of, 272 + + Law under the Feudal System, 58-82 + + Law and Medicine abused, 269-270 + + Laws of the Forest, 109-121 + + Laws relating to the Gipsies, 165-178 + + Left-handed murder, 214 + + Letters of IV. Forms, 163 + + Lesemajesty, crimes of, 229-231 + + Lincoln's Inn, 266 + + Lipski, 213 + + Literature and Law, 275 + + Little Inns of Court, 258-266 + + Lords, power of, 58 + + Lord Chief Justice Popham, stolen by gipsies, 170 + + Loss of right hand, 138 + + Lyon's Inn, 259 + + + Macdonald, James C., Devices of the Sixteenth Century Debtors, 161-164 + + Magna Charta, 63, 98 + + Manchester, Sanctuary at, 15, 16, 17 + + Manor and Manor Law, 83-94 + + Manor, origin of, 88 + + Marriage in feudal times, 59 + + Marriage laws, altering, 195 + + Marrying to atone for violence, 64 + + Martin, Maria, 214 + + Middle Ages, ordeals of, 29 + + Military service, 59 + + Military punishments, 136 + + Money raised by marriage, 72 + + Mortal Combat, 37-41 + + Mosaic law, 3 + + Mutilation, a favourite mode of punishment, 141-144 + + Muswell Hill murder, 213 + + + Neilson, George, on Symbols, 43-57; + Post Mortem Trials, 224-236; + Obiter, 267-276 + + New Inn, 259 + + New way of paying old debts, 163 + + Nimrod, 111 + + Norman forest laws, 117 + + + Oath, refusal to bear witness of, 8; + of fealty, 60 + + On Symbols, 43-57 + + Oppression of gipsies under Queen Elizabeth, 171 + + Ordeals, 24-42 + + + Palace regulations, 138-140 + + Parricide, punishment for, 137 + + Paul's Cross, preaching at, 194 + + Peacock, Edward, Laws of the Forest, 109-121; + Commonwealth Law and Lawyers, 179-196 + + Peine forte et dure, 145-148 + + Penal Code, English, 145 + + Penn and Mead, trial of, 125 + + Persecution of gipsies, 171 + + Plantations, gipsies sent to, 178 + + Plays acted by gipsies, 176 + + Pigs, trial of, 150, 151, 152, 153, 157 + + Pillory, 142, 144 + + Poison, 135, 138 + + Poison, ordeal, 28 + + Poisoning, punishment for, 135 + + Poor laws, 9 + + Post-Mortem Trials, 224-236 + + Prejudice against gipsies, 172 + + Protecting the church in war time, 102-103 + + Proverb, oldest, 111 + + Punishments under Saxons, 61 + + + Quakers, trial of, 125-131 + + + Rann, Ernest H., trials in superstitious ages, 22-42; + Fatal Links, 205-223 + + Reasoning power, 267 + + Rebel Heads on City gates, 134 + + Refuge, cities of, 14 + + Regicides, 134 + + Robbing travellers in feudal times, 73-74 + + Robert de Belesone, cruel acts of, 65 + + Robert the Bruce, Conspiracy, 225 + + Rod in Scotland, 49 + + Roman Empire in its glory, 114 + + Rose Tenures, 102 + + Ruskin, Jno., on Coeur de Lion, 72 + + + Sacrifice, laws relating to, 5-7 + + Sacrilege, 8 + + Sanctuaries, 13-22 + + Scilly Islands, laws of the, 239 + + Scoggan, Queen's jester, 163-164 + + Scotch Islands, laws of the, 239-242 + + Scotland, sanctuaries of, 21-22 + + Scott, John, of Edinburgh, 161-163 + + Scutage, 98 + + Self-slaughter, 229 + + Ship-money tax, 181 + + Shaving the head for theft, 69 + + Siamese, ordeals of the, 26 + + Silver spear, 55 + + Slavery, discharge from, 45 + + Slaves, ill treatment of, 8, 10; + under the Saxons, 60 + + Slaying gipsies, 175-176 + + Sods offered at the altar, 48 + + Spindle on the altar, 51 + + Staff and baton, 50 + + Staples Inn, 262 + + Star Chamber, 124-125 + + Strangulation, punishment by, 136 + + Straws, breaking, 48 + + Stocks, 67 + + Switzerland, trials of animals in, 154 + + Symond's Inn, 265 + + + Thornton, Abraham, 40-41 + + Towns amerced, 70 + + Traitors, exempted from the Sanctuary, 15 + + Treason, trials for, 233 + + Trial by Jury in old times, 122-131 + + Trials of Animals, 149-160 + + Trials in superstitious ages, 22-42 + + Tynwald Day, 247 + + + Usury, law of, 9 + + + Villeinage, 86 + + Violating the sanctuary, 14, 21 + + + Wager of Battel, 37, 41 + + Walters, Cuming, Law under the Feudal system, 58-82; + Island Laws, 237-257 + + Wand, 49 + + Welcoming gipsies to England, 168 + + Westminster, sanctuary of, 20 + + Whipping, 61; + Post, 67 + + William I., Forest Laws of, 118; + Burial of, 225 + + William the Red, Forest laws of, 119 + + Witchcraft, 144-45 + + Wollen Industry, protection of, 144 + + Women, free bench of, 93 + + Working of the sanctuary system, 16, 17 + + + + +FOOTNOTES: + +[1] This and other documents have been collected by Mr. T. J. de' +Massinghi, whose monagraph on "Sanctuaries" (Stafford, 1888) is the chief +source of information on the subject. + +[2] See Andrews' "Old Church Lore," 1891, and the authorities there cited. + +[3] The material facts in this paper up to this point are derived from +_Thevenin's Textes relatifs aux Institutions privées_ and _Du Cange art. +investitura_. + +[4] Williams' "Real Property Law." + +[5] Williams' "Real Property Law." + +[6] Southey's Common Place Book, 4th Series, 1851, p. 175. + +[7] Chapter x., verses 8 and 9. + +[8] Ecl. II., line 62. + +[9] Constitutional History of England, I. Ed., Vol. I., p. 289. + +[10] The Lord Chief Justice, John Popham, who was born in 1531, is said to +have been stolen when a child by the gipsies. They disfigured him and +placed on his arm a cabalistic mark. Apparently it was a case of +tattooing. But the story is discredited. + +[11] _Gaújo_ is the name given by the gipsies to all strangers who are not +of the Romany race. + +[12] _Edition_ 1857, vol. i., p. 77. + +[13] Peacock. _Army Lists of Roundheads and Cavaliers_, 2nd edit., 1874, +p. 21. + +[14] Wood, _Athenae Oxon_, sub nom. + +[15] John Loden Gollpried's _Kronyck_, vol. iv., p. 454. Van der Aa, +_Biographisch Woordenboek_, sub voce. + +[16] Carlyle, _Letters and Speeches of Oliver Cromwell_, vol. i., p. 50. + +[17] Henry Scobell, _Acts and Ordinances_, 1645, chapter 57. + +[18] "Michelet's History of France," viii., ch. 1. "Cheruel's Dictionnaire +des Institutions," art. "Cadavre." + +[19] "Pollock and Maitland's History of English Law," ii., 60. Bracton +51b, 262. + +[20] "Lea's Superstition and Force" (ed. 1892), 359-70. + +[21] "Roman de Rou," ii., 9320-40. + +[22] "Three Metrical Romances" (Camden Socy.), xxvi., 33. See "Decretals +of Gregory," lib. ii., tit. 28, cap. 25, _qua fronte_; also "Lyndwood's +Provinciale," p. 278. + +[23] "Bower's Scotichronicon," ii., 275. "Extracta e Cronicis," 150. +"Scalacronica," 144. + +[24] "Robertson's Index," 5, 10, 12, 19, 20, 21. + +[25] "Rolls of Parliament," ii., 335. + +[26] "Rolls of Parliament," iii., 384. + +[27] "Rolls of Parliament," iii., 459. + +[28] "Chronicle of Adam of Usk," pp. 44, 45. + +[29] "Justinian's Institutes," iv., 18. "Digest," xlviii., 4, 11. "Code," +ix., 8. + +[30] "Tacitus," xvi., 11. + +[31] "Code," i., 5, 4. + +[32] "Decretals of Gregory," v., 7, 10. + +[33] "Decretals of Gregory," v., 39, 28. "Lea's Studies in Church +History," 264-66. + +[34] "Haddan and Stubbs's Councils," i., 393. "Lea's Studies," 384, 425. + +[35] "Lea's Chapters from the Religious History of Spain," 372, 492. + +[36] "Cheruel's Dictionnaire," and "Denisart's Collection de Decisions," +art. "Lesemajeste, memoire, suicide." + +[37] For a curious English case of gibbetting a suicide in 1234, see +"Maitland's Bracton's Note Book," 1114: compare "Bracton," fo. 150. + +[38] "La Loy de Beaumont" (Reims 1864), p. 241. + +[39] "Acts of Parliament, Scotland," ii., 356. + +[40] "Mackenzie's Criminal Law," i., 6, 21-2. "Hume's Law of Crimes," i., +539. "Pitcairn's Criminal Trials," ii., 278. "Riddell's Scottish +Peerages," ii., 757-58. + +[41] "Acts Parl. Scot.," ii., 356. + +[42] But = without. + +[43] "Acts Parl. Scot.," ii., 369. + +[44] "Acts Parl. Scot.," ii., 415. + +[45] Case of Earl of Huntly in 1562. Tytler's "Hist. of Scotland," iii., +167. + +[46] "Acts Parl. Scot.," i., 415. + +[47] "Bain's Calendar of Border Papers," ii., 417. + +[48] "Border Papers," ii., 711. + +[49] "Pitcairn's Crim. Trials," ii., 233, 241. + +[50] Pitcairn, ii., 167-8. "Acts Parl. Scot.," iv., 199. + +[51] "Birrel," quoted in "Pitcairn," ii., 247. + +[52] _Quhill_, until. + +[53] For an example in 1603, that of Francis Mowbray, see "Pitcairn," ii., +406-9. + +[54] A full account of the trial is given in "Pitcairn," ii., 276-92. + +[55] Lord Hailes quoted in "Pitcairn," ii., 277. + + + + +SOME RECENT BOOKS PUBLISHED BY WILLIAM ANDREWS & CO., 5, FARRINGDON +AVENUE, LONDON, E.C. + + + "Valuable and interesting."--_The Times._ + + "Readable as well as instructive."--_The Globe._ + + "A valuable addition to any library."--_Derbyshire Times._ + +The Bygone Series. + +In this series the following volumes are included, and issued at 7s. 6d. +each. Demy 8vo., cloth gilt. + +These books have been favourably reviewed in the leading critical journals +of England and America. + +Carefully written articles by recognised authorities are included on +history, castles, abbeys, biography, romantic episodes, legendary lore, +traditional stories, curious customs, folk-lore, etc. etc. + +The works are illustrated by eminent artists, and by the reproduction of +quaint pictures of the olden time. + + BYGONE BERKSHIRE, edited by Rev. P. H. 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GEO. S. TYACK, B.A. + +_Crown 8vo., 3s. 6d. Numerous Illustrations._ + +The Author of this Volume has brought together much valuable and +out-of-the-way information which cannot fail to interest and instruct the +reader. The work is the result of careful study, and its merits entitle it +to a permanent place in public and private libraries. Many beautiful +illustrations add to the value of the Volume. + + "A book of equal interest to artists, archćologists, architects, and + the clergy has been written by the Rev. G. S. Tyack, upon 'The Cross + in Ritual, Architecture, and Art.' Although Mr. Tyack has restricted + himself to this country, this work is sufficiently complete for its + purpose, which is to show the manifold uses to which the Cross, the + symbol of the Christian Faith, has been put in Christian lands. It + treats of the Cross in ritual, in Church ornament, as a memorial of + the dead, and in secular mason work; of preaching crosses, wayside and + boundary crosses, well crosses, market crosses, and the Cross in + heraldry. Mr. Tyack has had the assistance of Mr. William Andrews, to + whom he records his indebtedness for the use of his collection of + works, notes, and pictures; but it is evident that this book has cost + many years of research on his own part. It is copiously and well + illustrated, lucidly ordered and written, and deserves to be widely + known."--_Yorkshire Post._ + + "This is an exhaustive treatise on a most interesting subject, and Mr. + Tyack has proved himself to be richly informed and fully qualified to + deal with it. All lovers of ecclesiastical lore will find the volume + instructive and suggestive, while the ordinary reader will be + surprised to find that the Cross in the churchyard or by the roadside + has so many meanings and significances. Mr. Tyack divides his work + into eight sections, beginning with the pre-Christian cross, and then + tracing its development, its adaptations, its special uses, and + applications, and at all times bringing out clearly its symbolic + purposes. We have the history of the Cross in the Church, of its use + as an ornament, and of its use as a public and secular instrument; + then we get a chapter on 'Memorial Crosses,' and another on 'Wayside + and Boundary Crosses.' The volume teems with facts, and it is evident + that Mr. Tyack has made his study a labour of love, and spared no + research in order, within the prescribed limits, to make his work + complete. He has given us a valuable work of reference, and a very + instructive and entertaining volume."--_Birmingham Daily Gazette._ + + "An engrossing and instructive narrative."--_Dundee Advertiser._ + + "As a popular account of the Cross in history, we do not know that a + better book can be named."--_Glasgow Herald._ + + +In The Temple. + +By a BARRISTER-AT-LAW. + +_Price One Shilling._ + +This book opens with a chapter on the history of the Temple. Next follows +an account of the Knight Templars. The story of the Devil's Own is given +in a graphic manner. A Sketch of Christmas in the Temple is included. In +an entertaining manner the reader is informed how to become a Templar, the +manner of keeping terms is described, and lastly, the work concludes with +a chapter on call parties. + + "Amusing and interesting sketches."--_Law Times._ + + "Pleasing gossip about the barristers' quarters."--_The Gentlewoman._ + + "A pleasant little volume."--_The Globe._ + + +The Red, Red Wine. + +By THE REV. J. JACKSON WRAY. + +_Crown 8vo., 330 pp. A portrait of the Author and other illustrations._ + +_Price 3s. 6d._ + +"This, as its name implies, is a temperance story, and is told in the +lamented author's most graphic style. We have never read anything so +powerful since 'Danesbury House,' and this book in stern and pathetic +earnestness even excels that widely-known book. It is worthy a place in +every Sunday School and village library; and, as the latest utterance of +one whose writings are so deservedly popular, it is sure of a welcome. It +should give decision to some whose views about Local Option are +hazy."--_Joyful News._ + +"The story is one of remarkable power."--_The Temperance Record._ + +"An excellent and interesting story."--_The Temperance Chronicle._ + + +Faces on the Queen's Highway. + +By FLO. JACKSON. + +_Elegantly Bound, Crown 8vo., price 2s. 6d._ + +Though oftenest to be found in a pensive mood, the writer of this very +dainty volume of sketches is always very sweet and winning. She has +evidently a true artist's love of nature, and in a few lines can limn an +autumn landscape full of colour, and the life which is on the down slope. +And she can tell a very taking story, as witness the sketch "At the Inn," +and "The Master of White Hags," and all her characters are real, live +flesh-and-blood people, who do things naturally, and give very great +pleasure to the reader accordingly. Miss Jackson's gifts are of a very +high order.--_Aberdeen Free Press._ + + +Old Church Lore. + +BY WILLIAM ANDREWS, F.R.H.S. + +_Demy 8vo., 7s. 6d._ + +CONTENTS--The Right of Sanctuary--The Romance of Trial--A Fight between +the Mayor of Hull and the Archbishop of York--Chapels on Bridges--Charter +Horns--Tho Old English Sunday--The Easter Sepulchre--St. Paul's +Cross--Cheapside Cross--The Biddenden Maids Charity--Plagues and +Pestilences--A King Curing an Abbot of Indigestion--The Services and +Customs of Royal Oak Day--Marrying in a White Sheet--Marrying under the +Gallows--Kissing the Bride--Hot Ale at Weddings--Marrying Children--The +Passing Bell--Concerning Coffins--The Curfew Bell--Curious Symbols of the +Saints--Acrobats on Steeples--A carefully prepared Index--Illustrated. + + "An interesting volume."--_The Scotsman._ + + "A worthy work on a deeply interesting subject.... We commend this + book strongly."--_European Mail._ + + "The book is eminently readable, and may be taken up at any moment + with the certainty that something suggestive or entertaining will + present itself."--_Glasgow Citizen._ + + "Mr. Andrews' book does not contain a dull page.... Deserves to meet + with a very warm welcome."--_Yorkshire Post._ + + +A Lawyer's Secrets. + +BY HERBERT LLOYD. + +AUTHOR OF "THE CHILDREN OF CHANCE," ETC. + +_Price One Shilling._ + +"Mr. Herbert Lloyd gives us a succession of stories which may reasonably +be taken to have their origin in the experience of a lawyer practicing at +large in the criminal courts. It is natural that they should be of a +romantic nature; but romance is not foreign to a lawyer's consulting room, +so that this fact need not be charged against this lawyer's veracity.... +The stories, seven in all, cover the ground of fraud and murder, inspired +by the prevailing causes of crime--greed and jealousy. Our lawyer is happy +in having the majority of his clients the innocent victims of false +charges inspired and fostered in a great measure by their own folly; but +this is a natural phase of professional experience, and we are only +concerned with the fact that he generally manages it as effectively in the +interests of his clients as his editor does in presenting them to his +audience."--_Literary World._ + +"A volume of entertaining stories.... The book has much the same interest +as a volume of detective stories, except that putting the cases in a +lawyer's mouth gives them a certain freshness. It is well written, and +makes a capital volume for a railway journey."--_The Scotsman._ + +"A very entertaining volume."--_Birmingham Daily Gazette._ + + + + + + +End of the Project Gutenberg EBook of Legal Lore, by Various + +*** END OF THIS PROJECT GUTENBERG EBOOK LEGAL LORE *** + +***** This file should be named 38589-8.txt or 38589-8.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/3/8/5/8/38589/ + +Produced by The Online Distributed Proofreading Team at +https://www.pgdp.net (This file was produced from images +generously made available by The Internet Archive.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: Legal Lore + Curiosities of Law and Lawyers + +Author: Various + +Editor: William Andrews + +Release Date: January 16, 2012 [EBook #38589] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK LEGAL LORE *** + + + + +Produced by The Online Distributed Proofreading Team at +https://www.pgdp.net (This file was produced from images +generously made available by The Internet Archive.) + + + + + + +</pre> + + +<div class="figcenter"><img src="images/cover.jpg" alt="" /></div> +<p> </p><p> </p><p> </p> + +<div class="verts"> +<h1><small>The Lawyer in History, Literature, and Humour.</small></h1> + +<p class="center">Edited by WILLIAM ANDREWS, <span class="smcaplc">F.R.H.S.</span></p> + +<p>“A welcome addition to the lighter literature of the law.”—<i>The Times.</i></p> + +<p>“A considerable amount of historical and literary information.”—<i>Daily +News.</i></p> + +<p>“An entertaining work. It is rich in the lore and the humour of the law, +and ought to be as interesting to the layman as to the lawyer.”—<i>The +Globe.</i></p> + +<p>“A handsome volume.... The work is printed and got up in a style that does +credit to the well-known firm of publishers.”—<i>Chester Courant.</i></p></div> + + + +<p> </p><p> </p><p> </p> +<div class="bbox" style="width: 347px; height: 500px;"><img src="images/frontis.jpg" alt="" /></div> +<p class="caption">TRIAL OF A PIG AT LAUSANNE IN THE FOURTEENTH CENTURY.</p> + + +<p> </p><p> </p><p> </p> +<p class="center"><span class="giant">Legal Lore:</span><br /> +<span class="large">Curiosities</span><br /> +<small>OF</small><br /> +<span class="large">Law and Lawyers</span></p> +<p> </p> +<p class="center"><small>EDITED BY</small><br /> +<span class="large">William Andrews.</span></p> +<p> </p> +<p class="center"><small>LONDON:<br /> +WILLIAM ANDREWS & CO., 5, FARRINGDON AVENUE, E.C.</small><br /> +1897.</p> + +<p> </p><p> </p> +<div class="figcenter"><img src="images/printer.jpg" alt="" /></div> + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<h2>Preface.</h2> + +<div class="note"> +<p> </p> +<p class="dropcap"><span class="caps">The</span> favourable reception given to my volume issued under the title of “The +Lawyer in History, Literature, and Humour,” has induced me to prepare, on +similar lines, the present book, dealing with curiosities of the law. I +hope those who are interested in the study of the byways of literature may +find entertainment and instruction in its pages, and that it will win a +welcome not only from the legal profession, but from the reading public.</p> + +<p>I am enabled by the courtesy of Messrs. Chatto & Windus, to reproduce for +my frontispiece, an illustration from a work published by them, under the +title of “Credulities Past and Present.”</p> + +<p class="right"><span class="smcap">William Andrews.</span></p> + +<p><span class="smcap">The Hull Press</span>,<br /> +<span style="margin-left: 2em;">10th December, 1896.</span></p></div> + + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<h2>Contents.</h2> + +<table border="0" cellpadding="0" cellspacing="5" summary="table"> +<tr><td> </td><td align="right"><small>PAGE</small></td></tr> +<tr><td><span class="smcap">Bible Law.</span> By S. Burgess, <span class="smcaplc">M.A.</span></td> + <td align="right"><a href="#Page_1">1</a></td></tr> +<tr><td><span class="smcap">Sanctuaries.</span> By William E. A. Axon, <span class="smcaplc">F.R.S.L.</span></td> + <td align="right"><a href="#Page_13">13</a></td></tr> +<tr><td><span class="smcap">Trials in Superstitious Ages.</span> By Ernest H. Rann</td> + <td align="right"><a href="#Page_23">23</a></td></tr> +<tr><td><span class="smcap">On Symbols.</span> By George Neilson</td> + <td align="right"><a href="#Page_43">43</a></td></tr> +<tr><td><span class="smcap">Law Under the Feudal System.</span> By Cuming Walters</td> + <td align="right"><a href="#Page_58">58</a></td></tr> +<tr><td><span class="smcap">The Manor and Manor Law.</span> By England Howlett</td> + <td align="right"><a href="#Page_83">83</a></td></tr> +<tr><td><span class="smcap">Ancient Tenures.</span> By England Howlett</td> + <td align="right"><a href="#Page_95">95</a></td></tr> +<tr><td><span class="smcap">Laws of the Forest.</span> By Edward Peacock, <span class="smcaplc">F.S.A.</span></td> + <td align="right"><a href="#Page_109">109</a></td></tr> +<tr><td><span class="smcap">Trial by Jury in Old Times.</span> By Thomas Frost</td> + <td align="right"><a href="#Page_122">122</a></td></tr> +<tr><td><span class="smcap">Barbarous Punishments.</span> By Sidney W. Clarke</td> + <td align="right"><a href="#Page_132">132</a></td></tr> +<tr><td><span class="smcap">Trials of Animals.</span> By Thomas Frost</td> + <td align="right"><a href="#Page_149">149</a></td></tr> +<tr><td><span class="smcap">Devices of the Sixteenth Century Debtors.</span> By James C. Macdonald, <span class="smcaplc">F.S.A.</span>, Scot.</td> + <td align="right"><a href="#Page_161">161</a></td></tr> +<tr><td><span class="smcap">Laws Relating To the Gipsies.</span> By William E. A. Axon, <span class="smcaplc">F.R.S.L.</span></td> + <td align="right"><a href="#Page_165">165</a></td></tr> +<tr><td><span class="smcap">Commonwealth Law and Lawyers.</span> By Edward Peacock <span class="smcaplc">F.S.A.</span></td> + <td align="right"><a href="#Page_179">179</a></td></tr> +<tr><td><span class="smcap">Cock-Fighting in Scotland.</span></td> + <td align="right"><a href="#Page_197">197</a></td></tr> +<tr><td><span class="smcap">Cockieleerie Law.</span> By Robert Bird</td> + <td align="right"><a href="#Page_200">200</a></td></tr> +<tr><td><span class="smcap">Fatal Links.</span> By Ernest H. Rann</td> + <td align="right"><a href="#Page_205">205</a></td></tr> +<tr><td><span class="smcap">Post-Mortem Trials.</span> By George Neilson</td> + <td align="right"><a href="#Page_224">224</a></td></tr> +<tr><td><span class="smcap">Island Laws.</span> By Cuming Walters</td> + <td align="right"><a href="#Page_237">237</a></td></tr> +<tr><td><span class="smcap">The Little Inns of Court.</span></td> + <td align="right"><a href="#Page_258">258</a></td></tr> +<tr><td><span class="smcap">Obiter.</span> By George Neilson</td> + <td align="right"><a href="#Page_267">267</a></td></tr> +<tr><td><span class="smcap">Index</span></td> + <td align="right"><a href="#Page_277">277</a></td></tr></table> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_1" id="Page_1">[Pg 1]</a></span></p> +<p class="center"><span class="giant">LEGAL LORE.</span></p> +<p> </p> +<h2>Bible Law.</h2> +<p class="center"><span class="smcap">By S. BURGESS, m.a.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">At</span> the very outset of any treatment of so delicate a subject as that +indicated by the title of this chapter, we are met by no small difficulty. +This consists in the danger of committing unintentional errors of +irreverence, and thus offending the prejudices of those who are more or +less pledged to their belief in the verbal inspiration of every Bible +chapter and verse. With this risk before us, we can only trust to our own +sense of a rational view of a subject so full of capabilities of +misconstruction. Those of us who can remember the outburst of righteous +indignation at the publication of the “Essays and Reviews” and of “Ecce +Homo,” feel surprise at the quiet indifference with which views expressed +in them are now received. This does not<span class="pagenum"><a name="Page_2" id="Page_2">[Pg 2]</a></span> at all, or necessarily, mean that +men’s faith is colder, or that the spirit of reverent religious feelings +has died away. The advance of accurate scientific investigation may have +upset the faith of some, and given a subject for outbursts of intolerant +pulpit denunciations, but we must think that there are signs plainly +discernible of a quiet acceptation of modern discovery by the majority of +thoughtful and devout believers in the inspiration of Holy Scripture. +These remarks will be found not unneedful as we pursue the examination of +this particular branch of Biblical study, namely, the Law as it is found +in the Bible, and this will be seen at once when it is laid down as an +absolutely necessary condition of our investigation that this same Law can +plainly be divided into two distinct portions—that which is of Divine, +and that which is of human origin. The bare statement of this fact will +offend certain prejudices. The Divine “Fiat” stamps with as marvellous and +undoubted clearness, certain portions, as other parts are marked by the +progress of human intelligence, the needs of human society, and the force +of the human will.</p> + +<p>The very fact of the existence of Law entails the necessity of Penalty, +and this may be<span class="pagenum"><a name="Page_3" id="Page_3">[Pg 3]</a></span> spiritual or corporal. The former depends on the +acknowledgment of the rule over us of a Superior Being. The latter is a +necessary accompaniment of all and every human life, believing or +unbelieving. So in the Bible Law we can easily distinguish between the +penalty affixed to the breaking of the first of the Ten Commandments, and +that which followed on the breaking of the sixth. On the authority of +Hebrew scholars, we are told that the use of the Hebrew Article shows that +<i>The Law</i> refers to the expressed will of God. If this rule be invariable, +it would be of great value, and especially so in the use of the Greek +Article.</p> + +<p>The writers of the Psalms gave forth an intense reflection of the old Law; +always presuming, as they of course did, that it emanated from the Deity.</p> + +<p>Now let us be allowed to start with the assumption that the Mosaic is the +earliest form of tabulated Law. A most excellent book has just been +published, “The History of Babylonia,” by the Society for Promoting +Christian Knowledge. It is a cheap little book, but full of information +upon which one feels able to rely. We find there that the Moral Law of +Babylonia<span class="pagenum"><a name="Page_4" id="Page_4">[Pg 4]</a></span> represents the spirit of Bible Law so accurately that it would +be absurd to set up any theory of an independent basis.</p> + +<p>We must make a date somewhere, and therefore we cannot do better than +choose a date that can be fairly tested, and safely on this side of +mythical eras,—and that is about 1500 <span class="smcaplc">B.C.</span> This must appear a very safe +and modest date to fall back upon. The Babylonians want us to go back +432,000 years, but to accept this assertion requires more faith than most +of us possess.</p> + +<p>For our present purpose there is nothing gained by comparing the Mosaic +Law with that discovered with such infinite care and learning in the +Babylonian records. The utmost that can be said is that we have startling +coincidences, and an intensely interesting subject opened out. But there +is no single grain of information, and that is what we are just now in +search of. We feel quite distrustful of documents, especially <i>stone</i> +ones, which give the lifetime of Alorus as extending to 36,000 years. That +was before the Deluge. The Wandering Jew sinks into insignificance, and is +a mere puling infant by the side of such figures as these, because the son +of Alorus reigned for<span class="pagenum"><a name="Page_5" id="Page_5">[Pg 5]</a></span> 46,800 years. However short the “year” was, the +period of life was quite lengthy. If a year was our week, the last named +patriarch was about 1,000 years old.</p> + +<p>This is a departure somewhat from the Law as it is in our Bibles. But it +will be an interesting study for some kind student to compare that Law +with the echoes thereof found in Asiatic literature, even far away on the +eastern shores of China. The mystery still unsolved is, “<i>How did it get +there?</i>”</p> + +<p>With the greatest diffidence we make the statement that the first notion +of Law was in connection with sacrifice. The time may come when this can +be refuted. But at present, leaving out of the question natural and +unwritten Law, we find no bond but this. Sacrifice comes to us as a Law +from a Superior Being. Heathen nations have recognized the efficacy of +sacrifice and offerings.</p> + +<p>Man without Law was an impossibility. No living thing can exist without +some Law. Thus we look back to the first records of created living things +for some Law. Science sheds a great, broad, and even scaring, light on the +Law prevailing over inanimate nature. The seas and the<span class="pagenum"><a name="Page_6" id="Page_6">[Pg 6]</a></span> fields obey it. +But for us to make a record of Law as it made its beginning, is a task too +great, and it is indeed then we feel that “fools may rush in” where better +souls have had to languish in doubt.</p> + +<p>Let us take the Law in the Bible as we can read it, and how few care to +read it! There was a man once who had read the whole of the first five +books through <i>twice</i>. Thinking there might be something to gain from such +abnormal study, we propounded a few questions on this very subject. The +result was a senseless repetition of verses from Leviticus. And yet, to +tell the honest truth, there is very little left us to do but to <i>quote</i>. +There is a little assistance we can give, and most thankful we are to have +it in our power to do so. Let us all the time remember that the Bible Law +is the sole foundation of every Law, Human and Divine, as far as we can +discover. If it can be proved that the Babylonian record with its 40,000 +year old kings is to be relied on, then by all means let us accept it.</p> + +<p>We start with the sacrifice as the “<i>companion</i>” of the Law. No one can +feel hurt by this. It is no good to any of us to ask whether Abel’s +sacrifice was according to revealed Law or<span class="pagenum"><a name="Page_7" id="Page_7">[Pg 7]</a></span> anterior to it. It is plain +that sacrifice came to be the great medium of the Law between man and the +great prevailing Law. With this allowed, all the rest is easier to grasp. +The early Law among the first people seemed to have no force but in its +connection with some higher Power. This Power has been now deputed to +earthly sources.</p> + +<p>The writers of the Psalms represent to us a perfect intercourse with the +Deity. The question then arises, “On what grounds was this intercourse +conducted?” The answer seems clearly to be on the conditions of the Laws +of sacrifice. Now, by comparing the elaborate list of these contained in +Smith’s “Dictionary of the Bible” with a very careful one in “Notes on the +Hebrew Psalms,” by W. R. Burgess (1879), we can make out a clear and very +useful <i>resumé</i>. Leaving out the great sin offerings for the <i>whole +people</i> and for the priests, we have the following sin offerings:—</p> + +<p>1. For any sin of ignorance. Lev. iv. A most elaborate ceremonial of +sacrifice and blood sprinkling. We should like to know when the “plea of +ignorance” was done away with altogether, as we believe it has no force at +all in modern Law.</p> + +<p><span class="pagenum"><a name="Page_8" id="Page_8">[Pg 8]</a></span>2. For refusal to bear witness on oath. Lev. v. This is of very great +interest in the light of recent legislation as to affirmation. We have +come across many people, it is needless to add grossly ignorant, who have +entirely lost sight of the obvious emphasis on the word “False” in the 9th +Commandment, placing the whole force on the fact of “Witness.”</p> + +<p>3. The Laws as to defilement. These, we presume, have left no trace on +modern Law.</p> + +<p>4. The breach of a rash oath, the keeping of which would involve sin. Lev. +v., 4. This opens a most interesting subject, but we have not space to +enter upon it. From the days of Jephthah and his oath with regard to his +daughter until this day, the question has been full of difficulties, and +is divided amongst, perhaps, equal advocates for the two opposed views of +it.</p> + +<p>5. Sacrilege in ignorance, fraud, <i>suppressio veri</i>, and perjury, were +punished by enforced compensation, and the addition of a fifth part of the +value concerned in the matter to the priest, or to the person wronged.</p> + +<p>6. Illtreatment of betrothed slaves. Lev. xix., 20. This is only curious, +but at the same time<span class="pagenum"><a name="Page_9" id="Page_9">[Pg 9]</a></span> has a connection with late enactments in criminal +Law.</p> + +<p>7. The Law as to the powers of a father is extraordinary. When one +considers the relation now existing and defined by our Law, the revolution +is beyond all measure out of reasonable proportion. For a curse, a blow, +or even wilful disobedience, the penalty was <i>death</i>!</p> + +<p>8. The Law of usury is difficult, but the chief points are well known. The +main principle of the Law prevails to this day. Let us only notice the +striking fact that usury could not be exacted upon the Jews themselves. +Does this not offer a fine comment on the grievous usury so cruelly +enforced in after years by these people upon the <i>Gentile</i> races?</p> + +<p>9. Debt. All debts were released at the seventh year. So there was a year +of limitation.</p> + +<p>10. Tithe. This Law has been so frequently and ably set forth, that it is +entirely one’s own fault if it needs any comment.</p> + +<p>11. Poor Laws. These are conspicuous by their absence. There was a legal +right of gleanings, a second tithe to be given in charity, and wages were +to be paid day by day. (Deut. xxiv.)</p> + +<p>A few rather important forms of legislation<span class="pagenum"><a name="Page_10" id="Page_10">[Pg 10]</a></span> must be placed here as +addenda. We notice the entirely despotic power of the husband over the +wife, and all belonging to her. Compare <i>our</i> useful but very late +enactment as to married women’s property, apart from her almost complete +irresponsibility.</p> + +<p>The slander against a wife’s virginity is punished by a fine only, but the +fact of its truth, and therefore no longer a slander, is punished by the +death of the woman. This is a most striking proof of the lower room in +social judgment awarded to the female Israelite. We notice also that the +power of the master over his servant was absolute, but that the master +suffered a penalty if his servant or slave died under castigation! Ex. +xxi. If he was maimed, he was by this fact allowed his freedom. The rule +as to <i>Hebrew</i> slaves is very interesting. It is too long to be quoted +here, but it can be easily mastered by a reference to Ex. xxi., Deut. xv., +Lev. xxv.</p> + +<p>We notice that there is no protection <i>legally</i> allowed to <i>strangers</i>, +and so we find kindness and protection enjoined as a sacred duty.</p> + +<p>We believe that the old list of “Prohibited Degrees,” which we saw placed +in churches in<span class="pagenum"><a name="Page_11" id="Page_11">[Pg 11]</a></span> our infancy, and is still to be seen, is in all respects +enforced by our present Law. But we are not quite sure of this. We can +only remember the vague sense of mystery underlying the clause, which was +always put in the largest type:—</p> + +<p class="poem">“A MAN MAY NOT MARRY HIS GRANDMOTHER.”</p> + +<p>Another most interesting Law must be carefully noticed, and if possible, +more deeply studied. In cases of accidental homicide, there was mostly an +“avenger of blood” to be looked for. To escape this untoward follower, +cities of refuge or sanctuaries were named, and in these the poor wretch +was safe until the death of the high priest.</p> + +<p>As to the legal penalty of adultery, are we quite sure that, according to +results, we have greatly improved upon the old Bible Law? Under this the +punishment was <i>death</i> of <i>both offenders</i>. Was it the fear lest the +population of the world should be so very seriously lessened that +gradually brought this Law to less than a penal one, so that at this day a +Royal “Commission” is placed on the offence in the shape of the absolute +freedom of the offenders to seek for <i>another opportunity</i>?</p> + +<p><span class="pagenum"><a name="Page_12" id="Page_12">[Pg 12]</a></span>Just a few words more as to those who interpreted the Law. These were the +Priests and the Levites. The “Judges,” as we read of them in the book of +that name, had, with the exception of Samuel, mostly to do with the +settlement of political disputes, and the leading out of the people to +victory or defeat, as the case might be. But in later times the power of +the Sanhedrim was undoubtedly great.</p> + +<p>The king’s power was legally limited. But so it is, and has been, in all +ages and in all dominions <i>in theory</i>! Yet we find Rehoboam expelled by +Jereboam, and the latter as despotic as the former, just as we find a firm +will in Cromwell after the despotism of Charles, in what had been then for +centuries the most “Constitutionally” governed country in the world!</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_13" id="Page_13">[Pg 13]</a></span></p> +<h2>Sanctuaries.</h2> +<p class="center"><span class="smcap">By William E. A. Axon, f.r.s.l.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">In</span> all ages men have attributed a special sanctity to certain localities, +usually those devoted to the purposes of worship, and this sentiment has +in many lands been utilised in the interests of mercy by exempting those +within the precincts from arrest for some, or even all, crimes and +offences. In the earlier stages of development, the punishment of crime +was not regarded as a duty of the community, but as an obligation, or +privilege of the injured or of those nearest to him in blood or social +relationship. Thus the son of a murdered man had the right to murder the +murderer. The general principle of the earlier forms of justice is the +<i>lex talionis</i>, but the infliction of the penalty was mostly in the +discretion of the avenger. He might be afraid to attempt to slay a strong +or powerful homicide, and be willing to pardon the offence for a money +consideration. A criminal who took refuge in a sacred place secured at +least a breathing time in<span class="pagenum"><a name="Page_14" id="Page_14">[Pg 14]</a></span> which his friends might effect a compromise +with his adversary. Greece had its famous <i>asyla</i>, but the custom of our +own country was probably influenced from Hebrew rather than classical +sources. In the narrative of the death of Joab, the hesitation of Benaiah +shows that it was unusual to slay one who had taken hold of the horns of +the altar. The six Cities of Refuge were appointed as places of safety for +involuntary homicides, where they were protected from the avenger of +blood. Amongst our Anglo-Saxon ancestors, the Church exerted a moderating +influence. Every consecrated church had the right to shelter the fugitive +from justice for seven days, and when the building was needed, he might be +placed in a house provided for that purpose by the church, which was not +to have more doors than the church itself. If the criminal was dragged +forth from his refuge, the violators of the sanctuary were fined in +varying degrees according to the rank of the ecclesiastical edifice. In +addition to the inherent right of each church, special privileges were +conferred on certain places by the exercise of the royal prerogative. In +1378, it was decided that the property of fraudulent debtors who had taken +sanctuary<span class="pagenum"><a name="Page_15" id="Page_15">[Pg 15]</a></span> should be liable for the satisfaction of the claims of their +creditors. In 1486, Pope Innocent VIII. issued a bull relating to English +sanctuaries, by which it was provided that when the refugee left his +asylum, he lost his right of protection, even though he subsequently +returned to the sanctuary. At the same time, the king was empowered to +appoint keepers to look after those who having been accused of treason, +had taken sanctuary.</p> + +<p>Great changes were made in the law during the reign of Henry VIII. +Traitors were wholly exempted from the privilege; those abjuring the realm +were not actually banished, but were to remain throughout life in the +sanctuary, and if they left it and committed any offence, they might then +be brought to trial. All inmates were to wear a badge twenty inches in +length and breadth, were forbidden the use of weapons, and were not to +leave their lodgings between sunrise and sunset. In 1538, the right of +sanctuary was further restricted, and Wells, Manchester, Northampton, +York, Derby, and Launceston were declared sanctuaries. Manchester found +this privilege to be of such doubtful value that two years later it was +transferred to Chester, and<span class="pagenum"><a name="Page_16" id="Page_16">[Pg 16]</a></span> afterwards to Stafford. In the reign of James +I., the right of sanctuary was abolished almost everywhere. The Palatine +Counties had their special sanctuaries. In Cheshire, Hoole Heath, +Overmarsh, and Rudheath were such places of refuge. The abbey of Vale +Royal had also a grant. But generally the County Palatine of Chester was a +place of resort for those who had come into conflict with the law in other +parts of the kingdom, and it was not until the reign of Charles II. that +the king’s writ ran in the palatinates and other privileged places. Many +privileged places in London, Westminster, and Southwark were brought +within the regular jurisdiction in the reign of William III. and George +II.</p> + +<p>We have an instructive picture of the working of the sanctuary system in +the case of Manchester. The Act of 32 Hen. VIII., c. 8, abolished the +right of refuge in all places except, and the exception is a considerable +one—churches, hospitals, and churchyards. Perhaps a more important +exception was that sanctuary was to be denied to those guilty of murder, +rape, highway robbery, burglary, house-burning, or sacrilege. Whilst +abolishing many sanctuaries,<span class="pagenum"><a name="Page_17" id="Page_17">[Pg 17]</a></span> certain additional places were named as +cities of refuge for minor offenders. One of these was Manchester. A year +later the town petitioned to be relieved from this distinction. The +inhabitants set forth that Manchester had a great trade in the bleaching +of linen yarn, and in the making of linen and woollen cloths and dressing +of cotton, and that the influx of dissolute persons to the sanctuary had +caused serious damage to the prospects of the town, which, having no +mayor, sheriff, or bailiff, and no jail, was badly circumstanced for +dealing with these lawless invaders. The request was granted, and the +sanctuary removed from Manchester to Chester. But the city of the Deva +found it desirable to obtain relief, and a further removal was made to +Stafford.</p> + +<p>The fridstool at Hexham still remains, although nearly everything else of +the Saxon foundation has perished. This “chair of peace” was the central +point of the sanctuary, which extended a mile around. A Durham example of +the working of the law may be cited.</p> + +<div class="blockquot"><p>“Memorandum: That on the 13th day of the month of May, <span class="smcaplc">A.D.</span> 1464, one +Colson, of Wolsyngham, Durham, who had been detected in a theft, and +therefore put and<span class="pagenum"><a name="Page_18" id="Page_18">[Pg 18]</a></span> detained in gaol, at length contrived to escape, +and fled to the Cathedral Church of Durham, in order to avail himself +of its immunities, and whilst he was there standing near the bier of +St. Cuthbert, prayed, that a Coroner might be assigned to him. Upon +John Raket, Coroner of the Ward of Chester in Strata (sic) coming to +him, the same Colson confessed the felony, making upon the spot the +corporeal oath that he abjured the realm of England, and would +withdraw from it as soon as he could conveniently, and would never +return thither, and which oath he took at the bier of St. Cuthbert in +the presence of Master George Cornworth, Sacristan of the Cathedral +Church of Durham; Ralph Bows, Knight and Sheriff of Durham; John Raket +(the Coroner); Robert Thrylkett, Deputy Sheriff; Hugh Holand, and +Nicholas Dixson, and of many others; by reason of which renunciation +and oath all the dress of the said Colson belonged to the said +Sacristan and his office; wherefore the said Colston was enjoined to +take off to his shirt all his garments, and deliver them to the +aforesaid Sacristan, and he did so, placing them all into his +possession, the Sacristan gave up and delivered to him again, +gratuitously, all his dress that he had up to this occasion been +clothed in; and after that Colstone withdrew from the Church, and was +handed over to the nearest constable by the aforesaid sheriff, and so +on from constables to constables, holding a white cross made of wood +as a fugitive, and so he was to be conducted to the nearest seaport to +take vessel as one never to return. This was done on the day, month, +and year aforesaid.”<a name='fna_1' id='fna_1' href='#f_1'><small>[1]</small></a></p></div> + +<p><span class="pagenum"><a name="Page_19" id="Page_19">[Pg 19]</a></span>The system was one that led to gross abuse. It was held that the right did +not extend to others than those whose offences entailed forfeiture of life +and limb, but in practice knavish debtors, fraudulent executors, etc., +availed themselves of the protection. There was plenty of scope for +dispute as to jurisdiction. In 1427, the Abbot of Beaulieu was required to +give proof of his right to shelter William Wawe, who is described as a +heretic, traitor, common highwayman and public robber. “Wille Wawe was +hanged,” is the sum of the matter as recorded by Stowe. Between 1478 and +1539, at Durham, 283 persons took refuge who were, as principals or +accessories, accused of homicide. There were sixteen debtors, four +horse-stealers, nine cattle-stealers, and four house-breakers. One had +been charged with rape, and seven with theft. One had been backward in his +accounts, one had harboured a thief, and one had failed to prosecute. Sir +John Holland, in revenge for the death of his esquire, killed the son and +heir of Hugh, second Earl of Stafford, and then took sanctuary at +Beverley. The murderer, in this case, was the half-brother of Richard II., +but it was with great difficulty that the king was induced to grant a +pardon.</p> + +<p><span class="pagenum"><a name="Page_20" id="Page_20">[Pg 20]</a></span>The church of St. John of Beverley had a charter from Athelstan, and near +the altar was the Fridstool, or chair of peace, “to which what criminal +soever flies hath full protection.” The privilege extended for a radius of +about a mile round the minster, and the limits were marked by stone +crosses. Infraction of the right of sanctuary was punishable by severe +penalties, and to take a refugee from the Fridstool was to incur both +secular and ecclesiastical penalties, the latter extending to +excommunication.<a name='fna_2' id='fna_2' href='#f_2'><small>[2]</small></a></p> + +<p>The widow of Edward IV. fled with her younger children for safety to the +sanctuary of Westminster after her eldest son had fallen into the keeping +of the Duke of Gloucester. Sir Thomas More reports the discussion in the +Council of the Protector, and the arguments used by Cardinal Bourchier, +which induced the queen to give up the Duke of York. The boy king, who was +never crowned, and his brother were murdered in the Tower. It is +noteworthy that this unfortunate monarch was born in the sanctuary of +Westminster when his father was in exile. Skelton, the poet, died in this +same sanctuary.</p> + +<p><span class="pagenum"><a name="Page_21" id="Page_21">[Pg 21]</a></span>The privileges of the sanctuary were not always respected. When Geoffrey, +Archbishop of York, took refuge in St. Martin’s Priory, Dover, he was +dragged from the altar in his pontifical robes by order of the bishop of +Ely, who was then Chancellor of the Kingdom. But this arbitrary proceeding +was not the least of the causes of the downfall of William of Longchamp. +When William Longbeard, who had been condemned to death, took sanctuary at +St. Mary-le-Bow, Hubert de Burgh ordered the church tower to be set on +fire to compel him to come forth. Longbeard abandoned his place of refuge, +and was dragged to Tyburn, and there hanged. But although de Burgh was +Archbishop of Canterbury and Justiciary of the Kingdom, and the Church was +his own peculiar, his violation of sanctuary led to the loss of his great +secular dignity. Later, when he had himself to seek refuge, a great debate +arose as to his having been forcibly taken from a sanctuary, and he was +restored to its protection, and escaped to Wales.</p> + +<p>Whilst the same rights of sanctuary existed in Ireland and in Wales, they +were apparently not made use of to any great extent. In Scotland, the +churches of Wedale, near Galashiels, and of<span class="pagenum"><a name="Page_22" id="Page_22">[Pg 22]</a></span> Lesmahagow, near Lanark, were +the most famous of the religious sanctuaries. The latter had also a royal +charter from David I. These sanctuaries ended with the Reformation. The +abbey of Holyrood and its precincts, which include Arthur’s Seat and the +Queen’s Park, gave protection to debtors until, by the abolition of +imprisonment for debt, its privileges ceased to have any meaning. One of +those who thus sought refuge at Holyrood during a part of his career was +Thomas de Quincey.</p> + +<p>Sanctuaries probably served a useful purpose in ages when the law was +harsh and indiscriminate in its punishment of offenders. The limited +protection afforded by the Church sanctuaries at least gave an opportunity +for the first heat of revengeful feeling to subside, and the greater +sanctuaries protected not merely vulgar offenders, but those whom the +stormy tide of politics had placed at the mercy of their enemies. As the +law became stronger, and the course of justice more certain, the need for +these refuges ended, and those that continued were public nuisances, and +mere centres of crime and anarchy, such as Scott has described for us in +his picture of Alsatia. We may be thankful that sanctuaries are now merely +objects of antiquarian interest and speculation.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_23" id="Page_23">[Pg 23]</a></span></p> +<h2>Trials in Superstitious Ages.</h2> +<p class="center"><span class="smcap">By Ernest H. Rann.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">In</span> superstitious ages, when belief in the power of the law to adjust all +quarrels, to hold the balance equally between man and man, and to accord +to each one his rights, was less prevalent than it is at the present day, +disputants naturally resorted to other tribunals for the settlement of +their claims. A perfect system of law was impossible; what law existed was +arbitrarily administered, often for the benefit of the most powerful +litigant, and the claimant with only justice on his side often had the +mortification of seeing a verdict given against him. During the +development of a system of law-giving, when the accumulated experience of +humanity had not sufficed to produce perfection, man in his darkness, his +ignorance, and superstition, turned to the supernatural, and devised +certain ceremonies by which the judgment of God might be evoked to +demonstrate the guilt or innocence of the accused.</p> + +<p><span class="pagenum"><a name="Page_24" id="Page_24">[Pg 24]</a></span>The antiquity of the ordeal, as it was called, cannot be measured. Such a +form of trial is found to have existed in the earliest ages, and even now +traces of it linger among savage tribes of the earth. In Africa especially +the ordeal is well known. During his travels among the negro tribes north +of the Zambesi, Dr. Livingstone encountered the curious practice of the +“mauvi,” which consisted of making all the women of a tribe drink an +infusion of “goho,” for the purpose of ascertaining which of them had +bewitched a particular man. The accused women were drawn up in a row +before the hut of the king, and the draught administered to them. Those +who were unable to retain the horrible decoction, and vomited, were +considered innocent of the charge: those who were purged were adjudged +guilty, and put to death by burning.</p> + +<p>The Calabar bean is also used by the natives of Africa in the form of an +emulsion as an ordeal for persons accused of witchcraft, proof of +innocence consisting of ability to throw off the poison by vomiting. Among +the Barotse tribes the process is conducted by deputy, the testing liquid +being poured down the throat of a dog or cat, and the accused person being +treated<span class="pagenum"><a name="Page_25" id="Page_25">[Pg 25]</a></span> according to the effect produced on the animal. Among the Dyak +tribes lumps of salt are thrown into a bowl of water by the accuser and +accused, and judgment is given against the owner whose lump disappears +first. Another method adopted by the Dyaks is for each of the two parties +to choose a mollusc, and to squeeze over it a few drops of lime-juice; the +owner of the mollusc which moves first under the acid stimulant losing the +case. Ratzel mentions that among the Malay tribes ordeals by fire, +ducking, pulling a ring out of boiling water, or licking red-hot iron, are +still frequent. Where the ordeal fails to produce the desired result, +wager of battel, in reality another form of ordeal, is resorted to. Among +the Tagals it is usual to light a consecrated candle, and to consider the +person guilty of the crime under consideration to whom the candle flame is +blown during the performance of the ceremony. The Igorrotes have a more +painful method of fixing guilt. The accuser and the accused are placed +together; the backs of their heads are scratched with a sharply-pointed +bamboo stick, and the man who loses most blood also loses his case.</p> + +<p>In Hawaii ordeals are administered by the priests, the suspected person +being compelled to<span class="pagenum"><a name="Page_26" id="Page_26">[Pg 26]</a></span> hold his hands over consecrated water, and adjudged +guilty if the liquid trembles in the vessel while the priest looks at him. +The Siamese have a form of ordeal which consists of making the two parties +to a suit swallow consecrated purgative pills, the man who retains them +for the greater length of time winning the case.</p> + +<p>Even among the comparatively enlightened races of the peninsula of India, +ordeals of the most elaborate and curious character are practised at the +present time. Warren Hastings mentions that in his day no fewer than nine +forms were in use among the Hindoos. The ordeal of the balance was +commonly employed, and is still in force in certain districts. The beam is +adjusted, and both scales made perfectly even. After the accused has been +bathed in sacred water, and the deities worshipped, he is placed in the +scale-pan and carefully weighed. When he is taken out the Pandits +pronounce an incantation, and place round his head a piece of paper +setting forth the charge against him. Six minutes later he again enters +the scale, and the balance is called upon to show his fault or innocence. +If he weigh more than before, he is held guilty; if less, innocent;<span class="pagenum"><a name="Page_27" id="Page_27">[Pg 27]</a></span> if +exactly the same, he must be weighed a third time, when, according to the +<i>Mitácsherá</i>, a difference in his weight will be observable. Should the +balance break down, the mishap would be considered as proof of the man’s +guilt.</p> + +<p>The ordeal of the balance is not altogether unknown in English history, +for an incident is recorded in which Susannah Haynokes, of Aylesbury, was +accused of bewitching her neighbour’s spinning-wheel, and preventing it +from working properly. Susannah loudly protested her innocence, and +demanded an ordeal to prove it. She was taken to the church, and weighed +in a semi-nude condition against a copy of the Bible, and being able to +outweigh the Scriptures, was considered to be innocent of the offence +charged against her. Possibly it never occurred to the owner of the +spinning-wheel that lack of oil was the cause of its refusal to go round.</p> + +<p>Among other ordeals in use by the Hindoos is that of iron, the accused +being required to lick a red-hot bar of the metal. If his tongue be burnt, +he is considered guilty, if not, he is reckoned innocent, but it cannot be +supposed that among tribes addicted to this practice the injury to the +tongue is considered sufficient punishment for<span class="pagenum"><a name="Page_28" id="Page_28">[Pg 28]</a></span> the offence with which the +suspect is charged. The poison ordeal, employed also, it may be noted, by +the Hovas of Madagascar, is commonly practised. A small quantity of +<i>vishanága</i>, a poisonous root, is mixed with clarified butter, which the +accused must eat from the hand of a Brahman. If the poison produce no +visible effect, he is absolved; otherwise, condemned. In other cases the +hooded snake called <i>nága</i> is placed in a deep earthen pot, from which the +accused has to take a ring, seal, or coin without being bitten, when he is +considered innocent. In trial by the Cósha the accused is made to drink +three draughts of water in which images of the Sun, of Dévì, and other +deities have been washed. If, within fourteen days, he is afflicted with +any form of sickness, he is considered guilty.</p> + +<p>For the fire ordeal an excavation is made in the ground, and filled with +burning pippal wood. Into this a person must walk bare-footed without hurt +in order to prove his innocence. Hot oil ordeals are also in force, when +the accused has to thrust his hand into the liquid without being burned; +and chewing a grain of consecrated rice, which, if it comes from the man’s +mouth dry or stained with blood, is considered proof of his<span class="pagenum"><a name="Page_29" id="Page_29">[Pg 29]</a></span> guilt. At +other times a silver image of the Genius of Justice, called <i>Dharma</i>, is +thrown with an image of iron or clay, called <i>Adharma</i>, into an earthen +jar; and the accused is acquitted if he bring out the silver image, but +condemned if he draw forth the iron.</p> + +<p>The history of the middle ages furnishes numerous examples of ordeals +employed in the settlement of disputes, which in the absence of a strong +and impartial system of law-giving, found great favour with the people of +all ranks. They were peculiarly distinguished by the appellation of +<i>Judicium Dei</i>, or judgments of God, and sometimes called <i>vulgaris +purgatio</i>. The law of the Church sanctioned the ordeal throughout Europe +for a considerable period, and faculties were freely given by the clergy +for the performance of these strange ceremonials. Indeed, the whole +business, as a judgment of God, was frequently conducted by the servants +of the Church, always in consecrated ground, and the sacred edifice itself +was occasionally requisitioned in order to add greater solemnity to the +proceedings. The ordeal of fire, practised, curiously enough, by the +Greeks in the time of Sophocles, was allowed only to persons of high rank. +The accused was required to carry<span class="pagenum"><a name="Page_30" id="Page_30">[Pg 30]</a></span> a piece of red-hot iron for some +distance in his hand, or to walk nine feet, bare-footed and blind-fold, +over red-hot ploughshares. The hands or feet were then immediately bound +up, and inspected three days afterwards. If, on examination, no injury was +visible, the accused was considered innocent; if traces of the burning +remained, he was reckoned guilty, and received punishment commensurate +with his offence, without any discount for the harm he had already +suffered.</p> + +<p>The most notable historic instance of this form of ordeal is that of Queen +Emma, mother of Edward the Confessor. She was accused of a criminal +intrigue with Alwyn, Bishop of Winchester, and condemned to the ordeal of +fire, which, on this particular occasion, took the form of nine red-hot +ploughshares, laid lengthwise at irregular intervals, over which she was +required to walk with bandaged eyes. She passed successfully through the +severe trial, and at the conclusion innocently asked when the ordeal was +about to begin. The Queen’s innocence was, to the popular mind, +established more substantially than would have been possible in any +existing court of law. She was not the only gainer by the restoration of +her reputation, for in consideration<span class="pagenum"><a name="Page_31" id="Page_31">[Pg 31]</a></span> of the success which had attended +her, she settled twenty-one manors on the Bishopric and Church of +Winchester.</p> + +<p>In the Eastern Empire the fire ordeal was largely used by the Emperor +Theodore Lascoris for the discovery of the origin of the sickness with +which he was afflicted. His majesty attributed the malady to magic, and +all suspected persons were required to handle red-hot iron in order to +establish their guilt or innocence, “thus joining,” as an ancient scribe +exclaims, “to the most dubious crime in the world the most dubious proof +of innocence.”</p> + +<p>Fire, as we have said, was employed for persons of high rank: those of +baser degree, especially bondsmen and rustics, were tried by the ordeal of +boiling water. “I will go through fire and water for my friend” was a +common expression in the middle ages, and, though having lost its original +significance, the saying has persisted to the present time as a +declaration of self-sacrifice. The accused person was required to take a +stone from a pan of boiling water, to insert the hand and wrist into the +liquid, and in case of the triple ordeal, to plunge the arm in up to the +elbow. When cold water was employed, and in cases of witchcraft<span class="pagenum"><a name="Page_32" id="Page_32">[Pg 32]</a></span> this was +generally resorted to, the suspect was flung into a river or pond. If he +floated without appearance of swimming, he was pronounced innocent; if he +sank, he was condemned as guilty—rather a superfluous proceeding, +considering that the man was in all probability already drowned.</p> + +<p>It would be going too far to assert that in all cases these ordeals were +carried out with the strictest impartiality and consideration for the ends +of justice. Means were not unknown to circumvent the peculiar forms of the +trial, and precautions were often taken by the clergy, as might have been +done in the case of Queen Emma, to protect those whom they desired to +clear of suspicion. It is a well-known fact that white-hot iron may be +licked with impunity, and the Mevleheh dervishes are proficient in the +trick of holding red-hot iron between their teeth. Sometimes cold iron, +painted red, was employed, and at others the fire reduced in temperature +at the critical moment, the suspect receiving only such injury as would +heal in the three days allowed before his hand was examined. Artificial +preparations were frequently employed, while the suspect had at times the +option of going alone into the church, and in all cases of keeping the<span class="pagenum"><a name="Page_33" id="Page_33">[Pg 33]</a></span> +crowd of spectators at a distance, which made minute inspection of the +proceedings impossible.</p> + +<p>Another form of ordeal was the <i>judicium crucis</i>, or trial of the Cross, +employed largely in criminal cases. When an accused person had declared +his innocence on oath, and appealed to the judgment of the Cross, two +sticks were prepared precisely like one another. The figure of the Cross +was cut upon one of these sticks, and the other left blank. Each of them +was wrapped in fine white wool, and laid upon the altar or the relics of +the saints, after which a prayer was uttered that God might discover by +unmistakable signs whether the prisoner was innocent or guilty. The priest +then approached the altar, took up one of the sticks, and uncovered it. If +it happened to be the stick marked with the cross, the prisoner was +pronounced innocent; if it were the other, he was condemned as guilty. A +different form of this ordeal was adopted when the judgment of the Cross +was invoked in civil cases. The judges and all parties to the suit +assembled in the church. Representatives, generally the youngest and +strongest priests, were then chosen, and required to stand one on each +side of a crucifix. At a given signal they<span class="pagenum"><a name="Page_34" id="Page_34">[Pg 34]</a></span> stretched out their arms at +full length, so as to form a cross with their body, and in this painful +posture they continued to stand during divine service. The party whose +representative dropped his arms first, or shifted his position, lost his +cause. History records a dispute over a monastery, between the Bishop of +Paris and the Abbot of St. Denis, which was settled in this manner. A +crowd assembled, and arranged bets on the result, but those who supported +the Bishop’s man were sadly disappointed, for he dropped his arms at an +early stage, and lost the cause of his employer. The ordeal of the Cross +was abolished by Louis de Debonnaire in 816, on the ground that it was +irreverent in character.</p> + +<p>Ecclesiasticism also played a prominent part in the ordeal of the +corsnedd, to which persons accused of robbery had to submit. The corsnedd +was a piece of bread made of unleavened barley, to which cheese made of +ewe’s milk in the month of May was added. Over the whole, one ounce in +weight, a form of exorcism was uttered, desiring of the Almighty that the +corsnedd might cause convulsions and paleness, and find no passage, if the +man were really guilty, but might turn to health and<span class="pagenum"><a name="Page_35" id="Page_35">[Pg 35]</a></span> nourishment if he +were innocent. The practice is strongly remindful of the trial of jealousy +in use among the Israelites, by which an unfaithful woman was compelled to +drink holy water containing dust of the floor of the tabernacle, the +belief being that she would be stricken with illness if she were guilty. +The corsnedd was given to the suspected person, who at the same time read +the sacrament. Godwin, Earl of Kent, was, in the reign of Edward the +Confessor, accused of murder, and forced to the ordeal of the corsnedd, +when, according to ancient chroniclers, the consecrated food stuck in his +throat, and caused his death. Both the expressions, “I will take the +sacrament upon it,” and “May this morsel be my last,” are supposed to have +been derived from this curious form of law-giving. A somewhat similar +custom is in vogue in Russia at the present day. Balls of bread are made +and dropped into consecrated water, the priest meanwhile reciting the +formula:—“Ivan Ivanoff, if you are guilty, as this ball falls to the +bottom, so your soul will fall into hell.” As a rule the culprit confesses +immediately. In Ceylon, also, a similar form of ordeal is by no means +unusual. A man suspected of theft is<span class="pagenum"><a name="Page_36" id="Page_36">[Pg 36]</a></span> required to bring the person he +holds in greatest affection before the judge, and placing a heavy stone on +the head of his substitute, say, “May this stone crush thee to death if I +am guilty of the offence.” The Tartar sets a wild bear and a hatchet +before the tribunal, saying as he does so, “May the bear devour me, and +the hatchet chop off my head, if I am guilty of the crime laid to my +charge.”</p> + +<p>Another form of ordeal which was cherished and practised with assiduity +was that of the bier, founded on the belief that the body of a murdered +man would show signs, by bleeding or movement, when his assassin +approached. The accused had to place his hand on the naked breast of the +corpse, and declare his innocence, though the slightest change in the body +was considered proof of his guiltiness. This method of finding out +murderers had its origin, it is believed, in Denmark, where it was in the +first instance adopted by King Christian II. for the discovery of the +murderer of one of his courtly followers. The belief has survived to a +certain extent to the present day, for even English peasants still expect +all persons present at a funeral to touch the body in proof of their +bearing no ill-will towards the dead man.</p> + +<p><span class="pagenum"><a name="Page_37" id="Page_37">[Pg 37]</a></span>Not so frequently employed, but still occasionally met with in ancient +history, was the ordeal of compurgation, where the innocence of the +accused was sworn to by his friends, and judgment went against the party +whose kindred refused to come forward, or who failed to provide the +necessary number of compurgators. It was a conflict of numerical strength, +and the higher number carried the day.</p> + +<p>Another custom, still surviving, was to tie a key in a Bible opened at +Psalm L, verse 18, “When thou sawest a thief, then thou consentedst with +him,” and balance the whole, the belief being that the book would turn in +the hands of a guilty person.</p> + +<p>Challenging the accuser to mortal combat was a proceeding which found much +favour with the warlike spirit of the middle ages. Of course it was +considered that Providence would defend the right, even if a miracle were +needful, but nevertheless each party placed considerable reliance on his +own strength of arm and fighting skill. These judicial combats were in +ancient times practised among the Jews, and were also common in Germany in +remote ages, though they do not find mention in Anglo-Saxon laws, and +were<span class="pagenum"><a name="Page_38" id="Page_38">[Pg 38]</a></span> apparently not in use in England until after the Norman Conquest. In +Germany a bier was placed in the midst of the lists, accuser and accused +stood respectively at the head and foot, and remained for some minutes in +profound silence before they commenced fighting. Civil, criminal, and +military cases were, in the absence of sufficient direct evidence, decided +by means of the judicial combat or wager of battel. The offended party had +the right to challenge his accuser to settle the dispute by force of arms, +and the forms and ceremonies connected with the trial are well illustrated +in the opening scenes of “King Richard II.” The combat took place in the +presence of the court itself, Heaven being expected to give the victory to +the innocent or injured party. It was commonly resorted to in charges of +treason, as in the above-mentioned dispute between Henry Bolingbroke and +Thomas Mowbray, when the ceremonies were of an imposing character. As in +the majority of ordeals, deputies could be chosen to perform the requisite +duties, but the principals were in all cases answerable for the +consequences. No commoner was allowed to challenge a peer of the realm, +nor could the citizens of London, for some obscure reason,<span class="pagenum"><a name="Page_39" id="Page_39">[Pg 39]</a></span> indulge in +these popular forms of legal administration. Each of the combatants +professed his willingness to make good his claims, body for body—</p> + +<p class="poem"><span style="margin-left: 5em;">“For what I speak</span><br /> +My body shall make good upon this earth,<br /> +Or my divine soul answer it in heaven.”</p> + +<p>Neither sorcery nor witchcraft had to be employed, and the battel was to +continue until the shades of evening had fallen, and the stars appeared. +If the accused were killed, his blood was attainted, but if he were only +vanquished, he was immediately condemned to an ignominious death by +hanging, providing he accepted his fate without demur. The defeated party, +however, might crave his life, in which case he was allowed to live as a +recreant, on condition that he retracted unreservedly the false statements +that he had sworn.</p> + +<p>At the Durham Assizes, on August 6, 1638, a wager of battel was offered +and accepted, for deciding the rights to land at Thickley, between Ralph +Claxton, demandant, and Richard Lilburne, tenant. According to an old +chronicle, “the defendant appeared at 10 o’clock in the forenoon, by his +attorney, and brought in his champion,<span class="pagenum"><a name="Page_40" id="Page_40">[Pg 40]</a></span> George Cheney, in full array, with +his stave and sandbag, who threw down his gauntlet on the floor of the +court, with five small pieces of coin in it. The tenant then introduced +his champion, William Peverell, armed in the same manner, who also threw +down his gage.” But the champions, instead of being allowed to fight, were +ordered to appear at the Court of Pleas in the following month. Legal +arguments followed, and the trial by battel was eventually postponed +indefinitely.</p> + +<p>In criminal trials no deputies were allowed, and the parties were +compelled to settle their quarrel in person, unless one of them was a +woman, an infant, or a man over the age of sixty, or was afflicted with +lameness or blindness. In the case of any of these disqualifications, +trial by jury could be claimed and insisted upon. One of the most +remarkable wagers of battel occurred in 1817. A young woman named Mary +Ashford, living at Erdington, near Birmingham, was supposed to have been +murdered early one morning when returning from a dance. Suspicion fell on +Abraham Thornton, a partner of the previous night, who was tried for the +crime and acquitted. Evidence for another trial was<span class="pagenum"><a name="Page_41" id="Page_41">[Pg 41]</a></span> collected, and +Thornton was <i>appealed</i> by William Ashford, the direct heir male of the +murdered woman. But when the proceedings commenced, Thornton’s counsel +took refuge under a very old Act, by which no man could be tried on a +second charge of murder, on which he had been acquitted, except by wager +of battel before the king, between the heir-at-law of the person murdered +and the accused. The appellant, Mary Ashford’s brother, declined the +combat on the ground of physical inferiority, and Thornton was discharged. +Immediately afterwards the antiquated law was removed from the Statute +Book.</p> + +<p>This marked the end of trials by ordeal as recognised by law. The process +of extermination had long been in progress, but popular opinion was +against reform, and certain of these curious customs survived. Although +the clergy had at first taken part in these ceremonials, and presided over +them in church, they came in time to discountenance them. The canon law +declared against ordeals as being the work of the Devil, and a decree to +this effect was issued in the eighteenth canon of the fourth Lateran +Council in November, 1215. Upon this authority it was<span class="pagenum"><a name="Page_42" id="Page_42">[Pg 42]</a></span> thought proper, +says Blackstone (as had been done in Denmark a century ago), “to disuse +and abolish these trials entirely in our courts of justice by an Act of +Parliament, Henry III., according to Sir Edward Coke, or rather by an +order of the King in Council.” The actual date of the abolition of ordeals +by fire and water was 1261. On the Continent these forms of trial had been +abolished by civil and ecclesiastical law much earlier, although in 1498 +an attempt was made to test the doctrine of Savonarola by means of a +challenge from one of his disciples to a Franciscan friar to walk through +a pile of burning wood. Old customs die hard, and the incident is a +curious and interesting instance of the persistence of a popular form of +trial even among the members of a party by which it had been condemned.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_43" id="Page_43">[Pg 43]</a></span></p> +<h2>On Symbols.</h2> +<p class="center"><span class="smcap">By George Neilson.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">The</span> wayward fancies of mankind are well illustrated in the diversity of +symbolic observances, some never losing their meaning, some absolutely +unintelligible in their historic form, and some as much characterised by a +befitting dignity, as others are by the want of it. All once were +self-explanatory and possessed a measure of propriety proportioned to the +state of the people amidst whom they originated. But tradition is long, +centuries elapse, each modifying a ceremony, and when the procedure +emerges within the knowledge of record, it has often so lost touch with +its surroundings, that it is hopeless to speculate how it arose.</p> + +<p>Symbols are drawn from and applied to every field of human activity. Of +course in a general sense man expresses himself only so, and a regular +alphabet is but a comparatively trifling advance on the language of signs. +What we call civilization, is at bottom little more than a clear<span class="pagenum"><a name="Page_44" id="Page_44">[Pg 44]</a></span> +recognition of certain symbols of government. The Queen’s crown, the +Judge’s ermine, the Mayor’s mace, what are they else? The sceptre is only +a glorified stick, of which the policeman’s baton is a humbler shape. Each +embodies the great thought that behind it stands a nation’s determination +to be ruled by law.</p> + +<p>In the history of law, symbol and the traces of symbol meet us at every +turn. The middle ages teemed with them. Roman law had bequeathed not a +few. Perhaps the most wondrous of them all is one that has long ceased to +have any legal connection, although its mark is all-powerful over +civilisation. How daring was the imagination which prompted the choice, +for the heraldic badge of Christianity, of the dread emblem of capital +punishment by crucifixion! In the pure domain of the law of the early and +middle ages, a perfect wilderness of symbols presents itself to eyes which +strive to explore the origins of institutions.</p> + +<p>Law is ever beset by a tendency towards formalism, and in early times a +severe insistence upon ceremony, no doubt, gave prominence and +prescriptive sanction to symbolic acts. Law and custom after all only mean +that the way things<span class="pagenum"><a name="Page_45" id="Page_45">[Pg 45]</a></span> were done yesterday is the safest way of doing them +to-day. The acceptance of a common form implies a very large public +consent, which is equally necessary to its abrogation, once it is +accepted. No small part of its value lies in its certainty, “certainty +which,” Coke well says, “is the mother of quiet and repose.”</p> + +<p>Hence the fixity and longevity of many emblematic methods of performing +acts affecting status or property rights. The constitution or discharge of +slavery, or the transfer of a slave from one master to another, had a +variety of set forms. A freeman might deliver himself to serfage by +putting a leathern thong upon his neck. When a church was the donee, the +ceremony might take place at the altar, and the man present himself there +with cords round his throat. “Thus he offered himself,” says an old +record, “to the Almighty Lord.” A coin or two on the head was also a +customary part of the process. In the manumission or liberation of the +slave, these coins struck off the head served the purpose of declaring him +free, as did the companion symbol of open doors, or the placing him at +four cross roads, and bidding him go whither he would. Another common +symbol of<span class="pagenum"><a name="Page_46" id="Page_46">[Pg 46]</a></span> enfranchisement was the delivery of an arrow, thought to denote +the right confined to freemen of bearing arms.</p> + +<p>Even a short account of legal symbols would make a very large treatise. +Single instances such as the ring, the staff, the glove, and the horn +would each furnish material for an elaborate monograph. The theme would +call for a discussion of the great war of investitures, and would touch +very many points of ecclesiastical, civil, and criminal law and history. +The scope of the present unambitious article is only directed to a few +illustrations in relation to the transfer of land, the act of divesting +the old proprietor and clothing the new with his rights. Although such +symbols usually had a connexion with the subject conveyed, there are many +types in which that connexion is not readily traceable. Why for example +amongst the Saxons should a resignation of all interest in an estate have +been made by a gesture with curved fingers? One can understand why a sod +should be so often a token, but why does the glove play so large a part in +Merovingian and Carolingian conveyancing? Was it, indeed, as German +scholars speculate, because the donor metaphorically took it off and<span class="pagenum"><a name="Page_47" id="Page_47">[Pg 47]</a></span> the +donee put it on, making his the covered hand, the <i>vestita manus</i>, that +would defend the land conveyed? How came an eleventh century magnate to +attest his renunciation of justiciary rights to a monastery “by cutting +off the top of the silk band by which his fur robes were fastened to his +breast, and with that segment re-investing three monks therein?” In this +case a portion of that silken band was carefully sewn up, as an adminicle +of evidence, in the writ recording the transaction. How again came it that +a claim of feudal service might be departed from by the delivery and +placing of a wand (<i>virgula</i>) upon the altar? All these are much more +personal symbols than real. They are mainly guarantees of the grantor’s +good faith. They do not seem to be primarily emblems of possession. The +contrast between these two classes will be best appreciated by considering +types of the latter.</p> + +<p>When a purchaser proceeded to set up fresh boundary marks, or to take a +spade and dig, or when he received delivery of a sod with grass or +shrubbery upon it, or lifted from the ground the charter granted by the +seller with amongst other things a sod laid thereon, the act of seisin, +the<span class="pagenum"><a name="Page_48" id="Page_48">[Pg 48]</a></span> formal occupation is visibly completed. Of this class of symbol, the +sod (<i>cespes</i>) is probably the best and most typical for a few words of +illustration. We read of litigants laying judicial claim to land in the +mall or public court by putting their spears into a sod, representative of +the subject in dispute. We hear of the sods being cut in the shape of +bricks, and of their being preserved as memorials, with the twigs growing +in and incorporated with them. We hear of sods offered on the altar when +the grant of land was being made to a church. We hear of transfer from one +vassal to another being accomplished by the grantor delivering the sod to +the over-lord, and the latter passing it on to the grantee.</p> + +<p>Of all the symbols employed in connection with feoffments, however, the +rod (<i>festuca</i>) had the widest vogue on the continent. Not that it was +restricted to transactions in land; it was a more or less lineal +descendant of the Roman stipulation, a contract visibly expressed by the +parties breaking a straw between them. Under Charlemagne a renunciation by +certain priests was made by them “holding straws in their hands and +casting them from them before God<span class="pagenum"><a name="Page_49" id="Page_49">[Pg 49]</a></span> and his angels.” Later this appears as +a recognised method of renunciation, but with a rod substituted for the +straw. In some cases the fact of renunciation is emphasised by the rod +being not only thrown to the ground by the resigner, but trodden under +foot when there. The rôle of the <i>festuca</i> was peculiarly important +amongst the Frankish peoples.<a name='fna_3' id='fna_3' href='#f_3'><small>[3]</small></a> Galbert of Bruges, a Flemish twelfth +century historian, states that the counts of Flanders gave investitures to +their vassals, after receiving their fealty and homage, by a wand +(<i>virgula</i>) held in hand, and he has a dramatic passage describing how the +people of Bruges, in token of their renunciation of their feudal bond to +Hacket the castellan, “picking up bits of stick exfestucated their homage +and fealty,” <i>i.e.</i> cast the rods from them, and so doing severed all +connexion with their former chief.</p> + +<p>In England and in Scotland, this rod symbol (<i>fustis et baculus</i>) also +played a large part. Bracton referred it specially to land without houses. +Tenure by the verge, a species of copyhold, had its name, we learn from +Littleton, from<span class="pagenum"><a name="Page_50" id="Page_50">[Pg 50]</a></span> <i>un petite verge</i>, delivered by the old tenant to the +steward or bailiff of the manor, who re-delivered it to the new holder. +Jordan Fantosme tells us that when Brien, messenger of Ranulf Glanvil, in +1174, announced in Westminster the capture of the Scottish King at +Alnwick, Henry II. rewarded him for his good news by handing him a stick +(<i>bastuncel</i>), which vested him in ten librates of land. In Scotland the +feudal resignation by a vassal to his overlord for the re-investure of a +fresh owner was effected by “staff and baton” (<i>fustis et baculus</i>), and +references to those symbols occurred in every day conveyancing until far +into the present century. Indeed this picturesque ritual was, strictly +speaking, not abrogated, although made unnecessary, by the Act 8 and 9 +Victoria ch. 35.</p> + +<p>The commonest conveyancing symbol for land in England was the formal +delivery of turf or twig of the ground conveyed, made by a representative +of the grantor, to a representative of the grantee. The most familiar in +Scotland was the handing over of “earth and stone.” This latter was the +normal form of seisin, and its history goes far back, not only in +Scotland, but on the continent as well. A curious Saxon<span class="pagenum"><a name="Page_51" id="Page_51">[Pg 51]</a></span> legend attests +this. Widukind narrates that some Saxons, having landed from their ships +in Thuringia, one of them, wearing a golden torque and bracelets, met a +Thuringian, who asked if he would sell his ornaments. The sly Saxon +entered into an odd transaction; the Thuringian gave him in exchange for +his gold, a lapful of soil. The Thuringians rejoiced exceedingly over the +smart bargain their countryman had made, but changed their tune when soon +afterwards the Saxons claimed the land as theirs, purchased with their own +gold, and by force of arms made good the demand.</p> + +<p>Our chronicles have a good many stories about symbols. In the Norman +<i>Brevis Relatio</i>, a sketch of the origin of William the Conqueror, is told +of his grandfather, Duke Richard the Good, that once when staying at a +monastery, after prayer in the morning he laid a spindle on the altar. +Upon being asked what it meant, he named the manor which he had by so +homely a symbol bestowed for the good of his soul. When the infant William +came into the world, it was said,—and afterwards noted as prophetic—that +when they laid him down upon some straw, the little hands each clutched a +handful. Acquisitive<span class="pagenum"><a name="Page_52" id="Page_52">[Pg 52]</a></span> tendencies were foreshadowed! The <i>Roman de Rou</i> +tells that in 1066, when William landed in England, he stumbled and fell, +an omen which for the moment disconcerted his followers, but rising with a +shout, he swore by the splendour of God that with his two hands he had +taken possession of the land. Prompt to catch the occasion, one of his men +ran forward to a cottage, tore a handful of thatch from the roof, and +passed it to his chief, with the cry, “Receive this +seisin,”—quasi-ceremonial words which with William’s pious, “God be with +me,” the curious may compare with the formalities of English livery in +deed, as described (sec. 59), in Coke upon Littleton.</p> + +<p>The normal symbol of seisin for a house in England, was (before the Act 7 +and 8 Victoria ch., 76, superseded these archaic ceremonies), was the ring +or hasp of the door, known in Scotland for houses in burghs as “hasp and +staple.” In the latter country also, there were a good many special types +of symbol characteristically appropriate to seisin in special kinds of +property. Thus for mills “clap and hopper,” for fishings “net and coble,” +for teinds (Anglice tithes) a sheaf of corn, for the patronage or<span class="pagenum"><a name="Page_53" id="Page_53">[Pg 53]</a></span> +advowson of a church a psalm-book and keys, attained the figurative +purpose requisite. There were many others less familiar amongst them, one, +a hat, worthy of a few words all to itself. Our own generation may not +regard this as a particularly dignified symbol, but there is a cloud of +witnesses to shew its very various applicability. The priest’s cap or +biretta was sometimes employed to instal him in a chaplainry or benefice. +And apart from the place of the hat in the regulations of the tilting +ring, it was occasionally used in Scotland as a symbol in connection with +what were known as heirship goods. But it had in the twelfth century been +accorded the very loftiest use to which secular symbolism could be turned. +In 1175, King William the Lion, taken prisoner the year before, +relinquished the independence of Scotland, and did homage to the English +King at York, as a condition of his liberation. The contemporary records +are silent regarding symbolic details, but in 1301 Edward I. stated in his +letter to the Pope that “in token of his fealty, William the King of +Scotland, had, on the altar of St. Peter’s, at York, offered his cap +(<i>chappelus</i>), lance, and saddle, which until this<span class="pagenum"><a name="Page_54" id="Page_54">[Pg 54]</a></span> day remain and are +preserved in said church.” Any incredulity which a fair-minded Scot can +entertain, regarding this allegation that the freedom of his country was +once symbolically surrendered in King William’s cap, will be materially +lessened, and Scottish patriotism so far consoled, by the recollection +that under very similar circumstances the realm of England was in 1193 +given away with the bonnet (<i>pilleus</i>) of the captive Richard I., who, +thus (as Hoveden tells us), gave investiture of his kingdom to his +arch-enemy, the Emperor Henry VI. This was, however, only formal: the +Emperor at once re-invested King Richard in his realm with a double crown +of gold, though subject to an annual tribute of £15,000—a business +transaction painfully illustrative of the Christian chivalry of the +Crusades.</p> + +<p>The annals of Scotland boast one instance of a royal symbol much more +regal than either of these two. About the beginning of the year 1124, King +Alexander I., restoring by charter to the Bishopric of St. Andrews an +extensive tract of land, completed the grant according to Andrew of +Wyntoun (vii., 5), in a truly stately fashion. He—</p> + +<p class="poem"><span class="pagenum"><a name="Page_55" id="Page_55">[Pg 55]</a></span> +Gert than to the awtare bryng<br /> +Hys cumly sted off Araby<br /> +Sadelyd and brydelyd costlykly<br /> +Coveryd with a fayre mantlete<br /> +Off precyous and fyne welvet<br /> +Wyth his armwris off Turky<br /> +That pryncys than oysid generaly<br /> +And chesyd mast for thare delyte<br /> +Wyth scheld and spere off sylvyr qwhyt.</p> + +<p>It was a special occasion, for Bishop Robert’s appointment, which had led +to the grant, was a Scottish victory over the pretensions of the See of +York. There is an appeal to the imagination so strong in the scene, that, +in spite of the interval of 300 years betwixt the event and this oldest +record of it, one is slow to offer any criticism on the charger; more +especially as the entire verity of the silver spear is corroborated by +Walter Bower’s enshrining in his Scotichronicon the fact that in the +fifteenth century it was doing duty as the shaft of the cross in the +Cathedral. Yet the unexampled symbol, coupled with the analogy from York +in 1175, compels the suggestion, that perhaps during these 300 years an +original <i>capellus</i> have been mis-read as <i>caballus</i>, or mistaken for +Scottish <i>capul</i>, and thus by the magic of mistranslation, a king’s<span class="pagenum"><a name="Page_56" id="Page_56">[Pg 56]</a></span> cap +<i>may</i> have been transmuted into an Arab steed.</p> + +<p>Whilst of course a crown was the standard symbol of investiture for a +kingdom, inferior rights of principality were often typified by other +things, such as a sword, a spear, or a banner. And as feudal forms were +observed in the bestowal, so were they sometimes in the taking away. +England dispensed with several of her monarchs, but apparently in no case +was a deposition attended by the feudal solemnities. In Scotland when, in +1296, King John Balliol was pulled out of the throne by the same hands as +had placed him in it, Edward I. spared his vassal little of the indignity +of the situation. Balliol, deprived of his royal ornaments, with the +ermine stripped from his tabard, resigned his realm by the symbol of a +white wand.</p> + +<p class="poem">Than this Jhon tuk a quhyt wand<br /> +And gave wp in till Edwardis hand<br /> +Off this Kynryk all the rycht.</p> + +<p>No Scottish historian has noticed the absolute legal propriety of this, +and it is worth noticing. By contemporary law (<i>Britton</i>, ii., 22), <i>une +blaunche verge</i> was the recognised symbol of disseisin by consent. The +thirteenth century<span class="pagenum"><a name="Page_57" id="Page_57">[Pg 57]</a></span> was very particular, even in small things, about its +law. <i>Disseisin</i>, provided for by statute of 1429, in disputed successions +to real property, and known to Scotland as the breaking of seisin, was +symbolically affected—<i>frangendo discum</i>—by the curiously expressive act +of breaking a dish or dishes, with fire underneath.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_58" id="Page_58">[Pg 58]</a></span></p> +<h2>Law under the Feudal System.</h2> +<p class="center"><span class="smcap">By Cuming Walters.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">To</span> the historian proper feudalism presents a wide subject with diverse +points of interest, but its legal aspect is comparatively a small matter, +and it can be considered without detailed reference to the whole vast +scheme which existed from early German and Gothic times, and overspread +the greater part of Europe. It is a common error to suppose that it was +introduced into England by the Normans. William the Conqueror only +superimposed a French form of feudalism upon that which already existed; +and all historians agree that the measures he adopted, the restrictions he +made, and the original conditions he established, were evidence of his +farseeing genius, and a masterpiece of statecraft. His was a feudalism +which, while giving the lords great personal power and influence, retained +them still as the servants of the king, and totally prevented them from +using their strength against the throne. In this<span class="pagenum"><a name="Page_59" id="Page_59">[Pg 59]</a></span> respect the feudal +system in England never resembled that of Germany and France, or even that +which the Norman barons established in Scotland. The Conqueror had no +intention of allowing the owners of territory to supersede his own +authority, and to be beyond the sovereign’s control. While, therefore, he +allowed them all liberty in dealing with their dependents, he made it +impossible for them to defy his own authority, first by distributing their +possessions so that they could not have a great army of followers at +command, and, secondly, by insisting upon a formal declaration of +allegiance from both the barons and their vassals. The former, therefore, +were not beyond the law, and the latter had nominally, if not actually, +some right of appeal to the monarch. These points it is necessary to bear +in mind for a full understanding of legal procedure during the long period +feudalism prevailed.</p> + +<p>The feudal lord’s claims upon his vassals were numerous. First came his +claim to their military service. He could demand from them service as +assessors in his courts of various fines and payments and confiscations of +land. He could dispose of females in marriage; not infrequently<span class="pagenum"><a name="Page_60" id="Page_60">[Pg 60]</a></span> he +consigned them to a debased existence. When the tenant was invested with +possession of his feud or fief, he paid homage to his lord, that is, he +proclaimed himself the “man” to help and to serve his master. Kneeling +humbly before the baron, he took oath of fealty, and practically enslaved +himself. It was here that King William showed his wisdom by ordaining that +the oath of allegiance should be not only to the feudal superior, but to +the monarch as the head of all, and thus he secured the ultimate service +of all vassals to the crown, and deprived the barons of autocratic power.</p> + +<p>The Saxon feudalism had been of the most tyrannical character, the owners +of slaves making their own laws, and carrying them out with the utmost +barbarism. Records exist which prove that for slight offences mistresses +were accustomed to order their servants to be scourged to death, or +subjected to fearful tortures. For breaking a dish, or spilling wine from +a cup, for example, a servant might have his ears cut off, his nose slit, +or suffer the loss of his hand, according to the caprice or fancy of his +lord or lady. While murderers and robbers could find sanctuary in the +Church, servants had no such<span class="pagenum"><a name="Page_61" id="Page_61">[Pg 61]</a></span> refuge. They were torn away from the altar +to which they clung in their terror, and none could or would intervene to +protect them. According to the decree of King Ethelred, public punishments +were to be mild, and death sentences were seldom to be passed; but the +sovereign’s wishes had no effect upon the treatment of bondmen. High-born +women were as cruel as their husbands, and King Ethelred’s own mother is +said to have beaten him so severely when he was a child that he regarded +whipping instruments with horror to the end of his life. Flagellation was +not recognised as a legal punishment by the Saxons, though a husband might +beat his wife and incur no penalty, while the whipping of slaves was +accounted no more than the whipping of animals, and perhaps less. For all +other classes money-fines were almost the only authorised penalty, a fixed +price being set upon persons of different degrees. But the slave had no +real value, and hence could be mutilated or killed at the pleasure of his +lord.</p> + +<p>The ideal of feudalism, never realised in England, was that the king and +his tenants-in-chief should hold law-courts, which the tenant or the +sub-tenants should be bound to attend to<span class="pagenum"><a name="Page_62" id="Page_62">[Pg 62]</a></span> have their cases tried according +to statute rules. But the system was only imperfectly carried out, and the +fact that the tenant-in-chief, or feudal lord, had the right to levy taxes +(called “tallage” or “tailles”) on his vassels, speedily led to all sorts +of tyranny and abuse. Still, the feudal courts could not engross the +legislation for the excellent reason that the quick-witted Conqueror had +preserved the Witanagenot and the courts of the shire and the hundred to +check the barons. The latter made a big effort to introduce the +Continental system of feudalism, by which each of them would have been +supreme in his domain; but the plans were defeated as we have seen. +William’s successors were men of a different stamp, and the system proved +unworkable in the hands of weaker men. “The prince,” says Hume, “finding +that greater opposition was often made to him when he enforced the laws +than when he violated them, was apt to render his own will and pleasure +the sole rule of government, and on every emergency to consider the power +of the persons whom he might offend rather than the rights of those whom +he might injure.” The mischievous course pleased none, and the royal +prerogative was at last <span class="pagenum"><a name="Page_63" id="Page_63">[Pg 63]</a></span>systematically assailed by the barons in the time +of John, and the Magna Charta wrestled from him. The concessions then made +were of benefit to the barons rather than to the landless and dependent +classes, and it remained for the third Edward to diminish their power and +increase the liberties of the populace.</p> + +<p>Law in England during all this period was chiefly a system of oppression, +proceeding stage by stage from the highest to the lowest. The revenues of +the crown were obtained by extravagant rents, forfeits, taxes, reliefs, +fines, aids, and other devices which show the amazing ingenuity of the +extortioners. The result was that most tyrannical exactions were made in +turn by the feudal lords, and the dependents groaned for six centuries +under these lawless yet legalised oppressions. Personal property was at +the mercy of the lords, who adopted the most cruel means to enforce their +“rights.” They, in turn, could be the victim of extortions, as was proved +in the case of Roger of Dudley, who was summoned to receive the honour of +knighthood in 1233. He found the honour so expensive that he declined to + +appear, whereupon a writ was issued—“Because Roger de Someri, at the +feast of Pentecost last<span class="pagenum"><a name="Page_64" id="Page_64">[Pg 64]</a></span> past, has not appeared before the King to be +girded with the military girdle, the Sheriff of Worcestershire is hereby +commanded to seize on the house of Dudley and all other lands of the said +Roger within his jurisdiction, for the King’s use; and to keep them with +all the cattle found upon them, so that nothing may be moved off without +the King’s permission.” The same Roger had a twelve years’ dispute with +William de Birmingham touching the service due for the manor of +Birmingham, for which the latter was required to perform the service of +eight knights’ fees, a half and a fourth part, and also to do suit to the +court at Dudley once every three weeks. In such wise did these cheftains +rule. Another curious piece of law relating to the Dudley lands is told by +Leland:—“The lorde Powis, grauntfather that is now, being in a +controversy for asawte made upon hym goying to London by the lord Dudeley, +Dudeley castelle condesended by entreaty, that his son and heir should +mary the olde lorde of Dudleis’ daughter.” A very amiable method of +atoning for personal violence.</p> + +<p>The feudal lord had absolute power over his own family, as well as over +his dependents, the laws of household government being entirely of<span class="pagenum"><a name="Page_65" id="Page_65">[Pg 65]</a></span> his +own devising and prompted by his passion, his ignorance, and his +wickedness. Robert de Belesme, Earl of Shropshire and of Arundel and +Shrewsbury, one of the most powerful and defiant barons of Norman times, +tore out the eyes of his own children when they had, in sport, hidden +their faces beneath his cloak. He cast his wife in a dungeon, heavily +fettered; but every night he sent his servants to drag her to his bed, and +in the morning sent her back to her prison. This torture he inflicted upon +her to gain money from her family. He disdained to allow his captives in +war to be ransomed, but impaled them, men and women, upon stakes. His +friends were terrified to approach him, for by way of pleasantry he would +engage them in merry chat and suddenly plunge his sword into their sides +with a loud laugh. No law could touch this man, and no avenger arose to +overcome him. The Warden of the Welsh and English Marches made also his +own laws, which were conceived in a spirit of the utmost cruelty. Border +foragers, for example, were cast into a dungeon, and subjected to the +punishment of having their right hands chopped off with the axe. This +prescribed penalty was often aggravated by additional torture or death.</p> + +<p><span class="pagenum"><a name="Page_66" id="Page_66">[Pg 66]</a></span>Feudalism was deep-rooted, so deep-rooted that not the enactments of all +the Normans and Plantagenets could do more than check its growth and +gradually ameliorate its severities. But while some of the old customs +were abolished, the bulk of the laws remained based upon the Anglo-Saxon +customs, so that as one writer has tersely explained, “the Land Laws and +Game Laws are derived from the Normans, the Common Law from the +Anglo-Saxons, and almost all our Statute Laws breathe the spirit of +pre-Norman England.” To this Macaulay refers with ill-disguised scorn in +his History: “Our laws and customs have never been lost in general +irreparable ruin. With us the proceedings of the Middle Ages are still +valid precedents, and are still cited on the gravest occasions by the most +eminent statesmen.... Thus in our country the dearest interests of parties +have been staked on the results of the researches of antiquaries.” The +historian, however, does admit that there is compensation for the +anomalies which result from this polity. “Other societies possess written +constitutions more symmetrical. But no other society has yet succeeded in +uniting revolution with prescription, progress with stability, the<span class="pagenum"><a name="Page_67" id="Page_67">[Pg 67]</a></span> energy +of youth with the majesty of immemorial antiquity.” That the spirit of +olden feudalism should sometimes be found surviving in modern laws is +inevitable. Villenage is extinguished, and yet in the very character of +certain classes, as well as in the operation of certain laws affecting +lands and personal privileges, we see a direct connection between the +submission of the bondman in the past to his hereditary master and the +readiness of the poor in the present to yield to one in higher station. +What struck the philosophic Emerson most, on his visit to England, was +that Englishmen should maintain their old customs, repeat the ceremonies +of the eleventh century, and consider in so many things that “antiquity of +usage is sanction enough.” “The Middle Ages,” he said, “still lurk in the +streets of London.”</p> + +<p>The stocks and the whipping-post, which stood in front of every castle, +were the commonest instruments in use for the punishment of the ceorl and +villein who displeased their masters. For the ceorl, who could not quit +the land on which he was born, or free himself from slavery, life was +particularly hard. He could not absolve himself by money payments, like +the rest of his<span class="pagenum"><a name="Page_68" id="Page_68">[Pg 68]</a></span> fellow-men, if once he gave offence; while the majority +could rob and murder and escape with a fine, the ceorl’s slightest defect, +real or imagined, was punished with merciless rigour. Tithings and the +process of compurgation came to the assistance of other criminals, but the +ceorl could appeal to none, and expect neither pity nor aid. Such facts +give point to Emerson’s dictum that “Castles are proud things, but ’tis +safest to be outside them.” The villein was in a much happier state than +the ceorl. He was free against everybody except his lord, and the criminal +code accorded him the same privileges as a free man. The lord was even +liable to punishment for killing or mutilating his villein, and the +<i>Mirror of Justice</i> in the thirteenth century laid down the fact that “the +villein is no serf in any sense of the word; he is a free man; his land is +a free tenure.” But all this is largely comparative, and our estimate of +the advantages enjoyed by the villein must depend upon whether we view it +by the standards of the time, or by modern standards. At all events, while +the ceorl tasted all the bitterness of his serfdom, the adjudged felon in +other stations was able to obtain much leniency. The common form of<span class="pagenum"><a name="Page_69" id="Page_69">[Pg 69]</a></span> oath +or abjuration in King Edward’s time was this: “This heare, thou Sir +Coroner, that I am a robber and a murderer, and a fellow of our Lord the +King of England; and because I have done many such evils in his lande I do +abjure the lande of our Lord Edward, and I shall haste me towards the port +of ——, which thou hast given me, and that I shall not goe out of the +highway, and if I doe, I will that I be taken as a robber and a felon. And +that at such a place I will diligentlie seeke for passage, and I will +tarrie there but one ebbe and flood, if I can have passage; and unlesse I +can have it in such a place I will goe every day into the sea up to my +knees, assaying to pass over; and unlesse I can do this within fortie days +I will put myselfe again into the Church as a robber and a felon, so God +me helpe and his holy judgment.” But King Richard showed no disposition to +put so much trust in the honour of these gentry, and when setting out for +Palestine, he made a law against peculating sailors, which was calculated +to dismay them: “Whosoever is convicted of theft shall have his head +shaved, melted pitch poured upon it, and the feathers from a pillow shaken +over it, that he may be known; and shall be put<span class="pagenum"><a name="Page_70" id="Page_70">[Pg 70]</a></span> on shore on the first +land which the ship touches.” This punishment reminds us of a modern +American institution.</p> + +<p>The law of “Englishry” deserves a passing note. It dates back to the time +of Canute, and was continued by the Normans. When Canute sent away the +greater portion of his Danish troops, “the Witan pledged themselves that +the rest should be safe in life and limb, and that any Englishman who +killed any of them should suffer punishment. If the murderer could not be +discovered, the township or hundred was fined.” The proud and tyrannical +Normans used this law to their own advantage. A mere Englishman being a +vassal, and of no importance, could be killed with impunity, but it was +ordained that when a man was found killed, and evidence was not brought to +prove that he was English, he should be held to be a Frenchman, so that a +penalty could be imposed upon the township. This law of “Englishry” is +often illustrated in old chronicles. Men were found murdered by the +roadside, on heaths, and in woods; the chronicles state that “no Englishry +was proved,” and the towns were accordingly amerced. The “Frankpledge” was +not so feudal in character,<span class="pagenum"><a name="Page_71" id="Page_71">[Pg 71]</a></span> though it was based upon the principle that +“every landless man shall have a lord who shall answer for his appearance +in the courts of law.” The custom prevailed before the Conquest, ten men +forming a “tithing,” the members of which were answerable each for others. +The present Court Leet is a survival of the system, though in a very +modified form.</p> + +<p>The feudalism which the Norman barons imposed upon Scotland, and which was +unchecked by King William, so that it reproduced all the evils of the +ferocious Continental system, was marked by terrible excesses. No +institution was more shameful and abhorrent, or so vividly reveals the +baseness to which unrestricted feudalism sank, than the horrible depravity +of maiden-rights, or <i>droits de seigneur</i>. Beaumont and Fletcher founded +upon the historic incidents their drama of “The Custom of the Country,” +and though a few mild attempts have been made to throw doubt upon the +facts, there is no question that these domestic tyrannies spread rapidly +from Scotland to France and Germany, and took numerous odious forms. Isaac +Disraeli, in his “Curiosities,” devotes a chapter to the subject, which +can scarcely be dealt with in<span class="pagenum"><a name="Page_72" id="Page_72">[Pg 72]</a></span> detail in a work appealing to the general +reader. The shameful institution was abolished by Malcolm III., who, +however, put the matter upon a business basis by ordering that it should +be redeemed by a quit-rent. But the lord still considered himself +privileged to manifest his authority over his vassals by thrusting his +booted leg into the bed of a newly-married couple, or by sousing the +bridegroom in a river. The wardships enjoyed by the feudal lords were +equally absurd, one of their favourite methods of raising money being to +arrange an unsuitable marriage, and on the refusal of the persons to carry +out the contract, to claim the revenue of the wards’ estate as “forfeit.” +The feudal lord could sell his vassals as he did his animals, and they +were often bartered away with fields and houses. The value of a serf was +roughly apprised as four times that of an ox, and he could also be used as +“live money.”</p> + +<p>Mr. Ruskin, in his third letter in “Fors Clavigera,” gives an account of +the laws promulgated by King Richard, Cœur de Lion, whom he declared to +be the truest representative of the British “Squire,” under all the +significances of that name. The ideal lord was an admixture<span class="pagenum"><a name="Page_73" id="Page_73">[Pg 73]</a></span> of the +patriarch and the tyrant, and if we examine Richard’s legislation, and +endeavour to recognise the objects he had in view, we see that with a +considerable amount of selfishness he also possessed a real wish to add to +the welfare of his people. He simplified and adjusted the weights and +measures of the country to put an end to cheating, and he took severe +measures “to prevent the extortions of the Jews.” If the people would be +honest, he was quite willing to do the fighting for them; if they made +good cloth, he was ready to see that they got good pay; and when they +bought and sold, he was determined that each should give the other good +measure. But with much power comes caprice, and the feudal lords too soon +forgot the interests of their dependents in serving their own ends. The +English barons never made the formal claim of the German barons to rob on +the highways in their own territories, though, without asserting the +right, they frequently performed the act. A case in point is that of +William de Birmingham, who so late as the sixteenth century went out with +a hundred men to molest and rob travellers on foot. The ordinary laws were +unequal to calling them to account for these misdeeds;<span class="pagenum"><a name="Page_74" id="Page_74">[Pg 74]</a></span> nothing but +conquest by battle could have checked them. Besides, there were Lord +Palatines whose rule in their own domains was equal to that of the +sovereigns, and they could make or abrogate laws at will. These kings <i>in +petto</i> appointed their own judges and courts, could reverse sentences, +pardon at will for any crime, and indict at pleasure. Offences committed +in the County Palatine were said to be “against the peace” of the lord, +and not against the peace of the king, and it was with a rod of iron that +these despots governed the territory allotted to them. Still there was a +show of legality in this. It differed from the wanton caprice of Geoffrey +of Coventry, who oppressed the inhabitants, was amenable to no law for so +doing, but consented to remit the burdensome taxes if his wife would ride +naked through the streets. As a specimen of the barbarous humour of these +lords, the Godiva story is instructive.</p> + +<p>At the end of King Stephen’s troublous reign, there were eleven hundred +and fifteen castles in England, each of them a centre of power, at that +particular time almost absolute. The wise provisions of the Conqueror had +to some extent been overcome, and the feudal lords had become<span class="pagenum"><a name="Page_75" id="Page_75">[Pg 75]</a></span> so +unmanageable that Henry II. found himself compelled to stipulate for the +destruction of a number of the strongholds. At the same time he prevented +the erection of others except by royal licence, and so began to limit the +oppression which had prevailed. We find, too, that in consequence of the +frequent over-riding of the common law by men in authority, the monarch +reserved to himself more and more of sovereign power, “by which,” says Sir +Robert Filmer in his famous “Patriarcha”—answered by John Locke in the +still more famous treatises on Civil Government—“he did supply the want +or correct the rigour of the common law, because the positive law, being +grounded upon that which happens for the most part, cannot forsee every +particular which time and experience bring forth. Already sundry things do +fall out,” he continues later, “both in war and peace, that require +extraordinary help ... so that rare matters do grow up meet to be referred +to the absolute authority of the prince.” We find such a case in the time +of Richard II., when, on a question of freehold, the appeal went direct to +the king because “of maintenance, oppression, or other outrages the common +law cannot have duly her course.”</p> + +<p><span class="pagenum"><a name="Page_76" id="Page_76">[Pg 76]</a></span>How the lords could avoid and defy the common law is proved by two curious +instances in the history of the Dudleys, the family previously referred +to. Lord Edward Dudley, in 1592, had a dispute with the neighbouring +Lyttelton family, and raising some 150 persons, he went one night and +stole all the cattle on the latter’s estate. Lyttelton obtained judgment +against Dudley, who was ordered to return the cattle, but he posted his +servants at the gates, and bade them cut the bailiffs to pieces. Lyttelton +then armed sixty men and took the cattle back by force; Dudley armed 700 +men to fetch them back and kill them. For this offence the nobleman and +eighty followers were indicted, but by one means and another the +proceedings were made to last four years, and then an agreement was +entered into by the parties. Lord Edward’s son, Ferdinando, was the hero +of the next exploit. He purchased the property of an oppressed widow, +named Martha Grovenor, for £1200, but only paid £100. She sued him in the +Exchequer for the remainder, and obtained judgment for the balance. No +notice was taken of this. The following year the widow obtained a second +decree, and this again was ignored. His lordship<span class="pagenum"><a name="Page_77" id="Page_77">[Pg 77]</a></span> was next called upon for +costs, and this led him to make an effort to compromise the matter. He +entered into an agreement to pay all arrears and costs, but, having done +so much, refused to fulfil his obligations. An execution of ejectment was +then levied against his lordship. This he avoided for nine years, and it +was only twelve years after negotiations had begun that the widow was able +to obtain her dues.</p> + +<p>A very brief glance at Continental feudalism and its influence upon +statute law may now be given. It enables us to mark some of the +differences between the English and the foreign systems, the one with its +restrictions and the other all-powerful. In the eleventh century, all +France and the German Empire were one vast feudal possession. The powers +of the lords have been classed by the historian Hallam as follows—First, +the right of coining money; second, that of waging private war; third, +exemption from all public tributes except the feudal aids; fourth, freedom +from legislative control; and fifth, the exclusive exercise of original +judicature in their dominions. It is easy to perceive how, with these +initial powers conceded, the seigneurs were enabled to make themselves the +veritable masters<span class="pagenum"><a name="Page_78" id="Page_78">[Pg 78]</a></span> of the kingdom. In Germany the lawlessness of the +barons became as proverbial as did their cruelty towards their slaves. The +whole country was divided up into territories over which the feudal chiefs +reigned as absolute and despotic kings. Nor is the spirit of feudalism in +that country yet extinct, for, unlike France, it has not had its bloody +revolt against “aristocrats.” No one can have travelled in Germany and +seen the castle towering high on crag or rock, and the diminutive houses +scattered about its base, without realising at a glance how the chieftains +and their serfs lived in the old days. In Germany the feudal system was +seen at its strongest and its worst, and law was paralysed while the men +of lust and blood were supreme in their own dominions. Austria has a +similar story to tell of barbarity towards serfs, and the abrogation of +law by powerful chieftains. But it is remarkable that in Russia, where the +feudal spirit still most strongly survives, and is marked by many excesses +utterly repugnant to the feeling and customs of the times, the earliest +attempts to establish a feudal system were quelled by the princes. In this +land, where a mistress might, until recently, have her maid whipped to +death<span class="pagenum"><a name="Page_79" id="Page_79">[Pg 79]</a></span> for dropping a teacup, or for any other trivial offence, real or +imagined, where again it was taken for granted that</p> + +<p class="poem"><span style="margin-left: 4em;">“A Count carbonadoes</span><br /> +His ignorant serfs with the knout,”</p> + +<p>feudalism, once instituted, deepened its hold with the progress of years. +While there was no law for the lower classes, save that dictated by the +caprice of their masters, there were special exemptions and priveleges for +the noble and wealthy. The Russian lords pay no taxes, and they retain, in +almost undiminished force, that power to abuse, insult, and destroy the +peasantry which was possessed by the <i>ancienne noblesse</i> of France before +the Revolution. Mr. Morley Roberts, in one of his Russian historical +sketches, relates that not long ago a noble threw a Hebrew into a dungeon +for an offence, and a week later asked his jäger what had become of him. +“Oh,” said the fellow with a laugh, “he made so much noise that I shot +him.”</p> + +<p>The state of Bohemia from the ninth to the fourteenth century shows to +what deplorable depths a race may sink under an unrestrained and +licentious feudalism. The Bohemian nobles practically abolished the +marriage laws, and in<span class="pagenum"><a name="Page_80" id="Page_80">[Pg 80]</a></span> addition to oppressing their dependents, frequently +sold them into slavery. When St. Adalbert endeavoured to effect a +reformation, he found every impediment put in his way, and his wishes +openly defied. He had a horror of bloodshed, and preached the hatefulness +of murder. By way of response, a man, whose wife had been put in a nunnery +to save her from his brutality, was dragged out and butchered in the +streets. Adalbert had to wait long before he could influence these men +who, secure in their castles, could indulge their rapacity without fear of +punishment. Reforms, effected in the tenth century, however, were not +permanent, and in the twelfth century the nobles had succeeded in +converting the local assembly, with its power of appointing judges, to +their own uses. Mr. Edmund Maurice, in his history of Bohemia, relates +that the nobles began to secure the judgeships for themselves, and then +sold or bequeathed the offices to heirs. They thus made the appointments a +means of tyranny and a source of profit, and with the money acquired +purchased the lands of freemen. Others, owing to the unpopularity of the +local tribunals, strengthened the power of their own feudal<span class="pagenum"><a name="Page_81" id="Page_81">[Pg 81]</a></span> courts, and +again reduced their dependents to abject slavery.</p> + +<p>“The coolness,” says Mr. Maurice, “with which many of the grants of land +transferred workmen of various kinds as mere appendages of fields and +fishponds, is in itself a proof of the degraded position to which the +peasant class had been reduced; and the fact that military service seemed +one of the few means of escaping from serfdom, led the peasants to favour +those wars which in the end increased their misery.” Eventually King +Wenceslas, famed in ballad, and still more famed in Bohemian history, came +to the rescue, and ordained “that no baron or noble of the land shall have +power in the city of Brünn, or shall do any violence in it, or shall +detain anyone, without the license and proclamation of the judge of the +city.”</p> + +<p>The wide survey we have taken enables a fair estimate to be made of the +state of the law in Europe when the castle was the court of justice, and +the baron was the judge. England alone of all Europeon countries seems to +have been able to place a check upon the more flagrant abuses, and in +later times of reform to have<span class="pagenum"><a name="Page_82" id="Page_82">[Pg 82]</a></span> succeeded, while abolishing what was +essentially evil in the system, in retaining whatever of it was of worth. +Whether there be still laws too deeply impressed with feudal ideas for +modern acceptance is a question for legislators to consider.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_83" id="Page_83">[Pg 83]</a></span></p> +<h2>The Manor and Manor Law.</h2> +<p class="center"><span class="smcap">By England Howlett.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">Everything</span> relating to the manor reminds us forcibly of the baron of olden +days, with his little territory, in which he was practically a king. +Estates in copyhold are essentially distinct both in their origin and in +their nature from those of freehold estates. Copyhold lands are holden by +<i>copy</i> of court roll, that is to say, the muniments of the title to such +lands are <i>copies</i> of the roll or book in which an account is kept of the +proceedings in the <i>court</i> of the manor to which the lands belong. For it +must be remembered that all copyhold lands belong to and are parcel of +some manor. An estate in copyhold is not a freehold; but, according to +construction of law, merely an estate <i>at the will of the lord</i> of the +manor, at whose will copyhold estates are expressed to be holden. +Copyholds are also said to be holden <i>according to the custom</i> of the +manor to which they belong,<span class="pagenum"><a name="Page_84" id="Page_84">[Pg 84]</a></span> for custom is of course the life and being of +copyholds.</p> + +<p>We must remember that in former days, a baron, or great lord, becoming +possessed of a large tract of land, granted part of it to freemen for +estates in fee simple. Part of the land he reserved to himself, and this +formed the demesnes of the manor, properly so called: other parts of the +land he granted out to his villeins, or slaves, permitting them, as an act +of pure grace and favour, to enjoy such lands at his pleasure; but +sometimes enjoining, in return for such favour, the performance of certain +agricultural services, such, for instance, as ploughing the demesne, +carting the manure, and other such servile work. The lands remaining after +this parcelling out, generally the poorest, formed the waste lands of the +manor, over which rights of commons were enjoyed by the tenants. In this +way arose a manor, of which it will be seen the tenants formed two +classes, the freeholders and the villeins. Now for each of these classes a +separate court was held—for the freeholders a Court Baron; for the +villeins another called a Customary Court. In the former court the suitors +were the judges; in the latter the lord only, or his steward.</p> + +<p><span class="pagenum"><a name="Page_85" id="Page_85">[Pg 85]</a></span>In some manors the villeins were allowed to have life interests, but these +grants were not extended so as to admit any of their children. Hence arose +copyholds for life. Again, in other manors a much greater degree of +liberality was shown by the lords; and on the death of a tenant, the lord +permitted his eldest son, or indeed sometimes all his sons, or sometimes +the youngest only, and afterwards other relations to succeed him by way of +heirship; for which privilege, however, the payment of a fine was usually +required on the admittance of the heir to the tenancy. Frequently it +happened that the course of descent of estates of freehold was chosen as +the model for such inheritances; but in many cases dispositions of the +most capricious kind were adopted by the lord of the manor, and in course +of time actually became the custom of the manor. And thus it was that +copyholds of inheritance arose. Again, if a villein tenant wished to part +with his own parcel of land to some other of his fellows, the lord would +allow him to <i>surrender</i> or yield up again the land, and then, on the +payment of a fine, would indulgently <i>admit</i> as his tenant, on the same +terms, the other, to whose use and in whose favour the<span class="pagenum"><a name="Page_86" id="Page_86">[Pg 86]</a></span> surrender had been +made. Thus arose the method now prevalent at the present day, of conveying +copyholds by <i>surrender</i> into the hands of the lord of the manor to the +use of the purchaser, and the subsequent admittance of the latter. By long +custom and continued indulgence that which at first was a pure favour +gradually grew up into a right, and thus it came to pass that the will of +the lord, which had of course originated the custom, came at last to be +controlled by it.<a name='fna_4' id='fna_4' href='#f_4'><small>[4]</small></a></p> + +<p>The rise of the copyholder from a state of uncertainty to certainty of +tenure appears to have been very gradual. Britton, who wrote in the reign +of Edward I., thus describes this tenure under the name of Villeinage. +“Villeinage is to hold part of the demesnes of any lord entrusted to hold +at his will by villein services to improve for the advantage of the lord.” +And he further adds that “In manors of ancient demesne there were pure +villeins of blood and of tenure, who might be ousted of their tenements at +the will of their lord.”</p> + +<p>In the reign of Edward III. a case occured in which the entry of a lord on +his copyholder was adjudged lawful, <i>because he did not do his services</i>,<span class="pagenum"><a name="Page_87" id="Page_87">[Pg 87]</a></span> +by which he broke the custom of the manor, which seems to show that even +at that time the lord could not have ejected his tenant without a cause. +And later, in the reign of Edward IV., the judges gave to copyholders a +certainty of tenure by allowing them an action of trespass on ejectment by +their lords without just cause. “Now,” says Sir Edward Coke, “copyholders +stand upon a sure ground; now they weigh not their lord’s displeasure; +they shake not at every sudden blast of wind; they eat, drink, and sleep +securely; only having a special care of the main chance, namely, to +perform carefully what duties and services soever their tenure doth exact +and custom doth require; then let lord frown, the copyholder cares not, +knowing himself safe.”</p> + +<p>In the present day a copyholder has as good a title as a freeholder; in +some respects a better; for all the transactions relating to the +conveyance of copyholds are entered on the court rolls of the manor, and +thus a record is preserved of the title of all the tenants.</p> + +<p>Since the passing of the statute of <i>Quia Emptores</i>, 18 Edward I., it has +not been lawful to create a tenure of an estate in fee simple; so that +every manor bears date at least as far back<span class="pagenum"><a name="Page_88" id="Page_88">[Pg 88]</a></span> as that reign; to this rule +the few seignories, which may have been subsequently created by the king’s +tenants in capite, form the only exception.</p> + +<p>The name “manor” is of Norman origin, but the estate to which it was given +existed, in its essential character, long before the Conquest; it received +a new name as the shire also did, but neither the one nor the other was +created by this change. The local jurisdiction of the thegns who had +grants of sac and soc, or who exercised judicial functions amongst their +free neighbours, were identical with the manorial jurisdictions of the new +owners.</p> + +<p>Although long continued custom has now rendered copyholders quite +independent of the will of the lords, yet all copyholds, properly so +called, are still expressly stated, in the court rolls of manors, to be +holden at the will of the lord; and, more than this, estates in copyholds +are still liable to some of the incidents of mere estates at will.</p> + +<p>In ancient times the law laid great stress on the feudal possession or +seisin of lands, and this possession could only be had by the holder of an +estate of freehold, that is, an estate sufficiently<span class="pagenum"><a name="Page_89" id="Page_89">[Pg 89]</a></span> important to belong +to a free man. Now, as we have seen, copyholders in ancient times belonged +to the class of villeins or bondsmen, and held, at the will of the lord, +lands of which the lord himself was alone feudally possessed. The lands +held by the copyholders still remained part and parcel of the lord’s +manor; and the freehold of these lands still continued vested in the lord; +and this is the case at the present day with regard to all copyholds. The +lord of the manor is actually seised of all the lands in the possession of +his copyhold tenants.</p> + +<p>The lord, having the legal fee simple in the copyhold lands comprised in +his manor, possesses all the rights incident to such an estate, controlled +only by the custom of the manor, which is now the tenant’s safeguard. Thus +he possesses a right to all the mines and minerals under the land, and +also to all timber growing on the surface, and this even though the timber +may have been planted by the tenant. However, it must be borne in mind +that these rights are somewhat interfered with by the rights which long +continued custom has given to the tenants, for the lord cannot come upon +the lands to open his mines, or to cut his timber, without the +copyholder’s leave.</p> + +<p><span class="pagenum"><a name="Page_90" id="Page_90">[Pg 90]</a></span>A copyholder cannot commit any waste, either voluntary, by opening mines, +cutting down timber or pulling down buildings; or permissive, by +neglecting to repair. For the land, with all that is under it or upon it, +belongs to the lord of the manor; the tenant has nothing but a customary +right to enjoy the occupation; and if he should in any way exceed this +right, a cause of forfeiture to his lord would at once accrue.<a name='fna_5' id='fna_5' href='#f_5'><small>[5]</small></a></p> + +<p>By the customs of manors, on every change of tenancy, whether by death, +sale, or otherwise, fines of more or less amount become payable to the +lord. By the customs of some manors the fine payable was anciently +arbitrary; but now in modern times, fines, even when arbitrary by custom, +are restrained to two years’ improved value of the land after deducting +quit rents.</p> + +<p>In some manors a fine is due on the change of the lord; but in this case +the change must always be by act of God, and not by any act of the party.</p> + +<p>The tenure of an estate in copyholds involves an oath of fealty from the +tenant, and together also with suit to the customary court of the manor. +Another incident of the tenure, and this<span class="pagenum"><a name="Page_91" id="Page_91">[Pg 91]</a></span> sometimes a very profitable one, +is the escheat to the lord on failure of heirs.</p> + +<p>Before the abolition of forfeiture for treason and felony, the lord of a +copyholder had a great advantage over the lord of a freeholder in this +respect, that, whilst freehold lands in fee simple were forfeited to the +crown by the treason of the tenant, the copyholds of a traitor escheated +to the lord of the manor of which they were held.</p> + +<p>One of the most curious incidents of the tenure is the right of the lord, +on the death of a tenant, to seize the tenant’s best beast, horse, or +other chattel under the name of a heriot. Now it would appear that heriots +were introduced into England by the Danes. The heriot of a military tenant +was his arms and habiliments of war, which belonged to the lord for the +purpose of equipping his successor. And it would seem that in analogy to +this purely feudal custom, the lords of manors usually expected that the +best beast or other chattel of each tenant, whether he were a freeman or a +villein, should on his death be left to them. In old wills of copyholders +we constantly find this legacy to the lord of the manor the first bequest +mentioned: in fact the tenant really making a bounty of what was<span class="pagenum"><a name="Page_92" id="Page_92">[Pg 92]</a></span> actually +an obligation. In cases where the tenant died intestate the heriot of the +lord was taken in the first place out of his effects, unless indeed the +lord seized the whole of the goods, which not unfrequently happened in +days before custom had so completely controlled the rights of the lord, +and at the same time protected the interests of the tenant. Heriots +survive to this day in many manors, a true badge of the ancient servility +of the tenure. Now, however, the right of the lord is confined to such a +chattel as the custom of the manor, grown into a law, will permit him to +take; and in most cases the heriot consists not of a chattel at all, but +merely of a money payment.</p> + +<p>The mode in which copyhold land is transferred from one person to another +still retains much of the primitive simplicity of bygone ages. The +copyholder personally surrenders the lands into the hands of the lord, +generally through his steward, and this surrender is evidenced by the +delivery of some article varying according to the custom of the particular +manor: in some manors the surrender is effected by the delivery of a rod, +in others of a straw, and again in others by a glove. The surrender having +been duly effected, the purchaser is admitted, and the various<span class="pagenum"><a name="Page_93" id="Page_93">[Pg 93]</a></span> documents +used are all entered upon the court rolls of the manor. The steward is the +person who makes the entries on the court rolls, and they are kept in his +custody, but subject however to the right of the tenants to inspect them. +The steward also usually presides at the copyhold courts of the manor.</p> + +<p>A special custom is required to entitle the wife of a copyholder to any +interest in her husband’s lands on his death intestate. Where such a +custom does exist the wife’s interest is termed her <i>freebench</i>, and it +consists generally of a life interest in one-third part of the lands of +which the husband died possessed. Freebench in most manors differs from +the ancient right of dower in this most important particular, that whilst +the widow could claim her dower out of all the freehold lands which her +husband actually possessed at any time during the marriage, the right to +freebench does not in general attach until the actual death of the +husband, and of course may be defeated by a devise of lands by the +husband’s will. From this it will be seen that freebench is no impediment +to free alienation by the husband of his copyholds without any consent on +the part of his wife. To this general rule, however, the<span class="pagenum"><a name="Page_94" id="Page_94">[Pg 94]</a></span> manor of +Cheltenham forms an important exception; for by the custom of this manor +the widow’s freebench attaches in the same way as the ancient right of +dower did on all the land of copyhold tenure, of which the husband at any +time during the marriage had been possessed.</p> + +<p>Centuries have robbed the manor of much of its importance; most of the +honour and prestige has decayed which once surrounded the lord, his power +has become controlled by long continued custom, so that the copyhold +tenants are practically independent of him, and have as good a title to +their lands as freeholders. Little remains beyond the most prominent of +the old formalities, which at one time gave dignity and importance to the +lord of the manor and his court. Most of the dealings with copyhold land +are now effected out of court, and although the courts are still held at +the customary periods, they are for the most part an empty formality, +their glamour gone, yet still possessing an especial interest of their own +as evidence of the surviving of ancient customs, which have practically +remained unchanged through the roll of centuries.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_95" id="Page_95">[Pg 95]</a></span></p> +<h2>Ancient Tenures.</h2> +<p class="center"><span class="smcap">By England Howlett.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">Practically</span> all the landed property in England is, by the policy of our +laws, supposed to be granted by, dependent upon, and holden of some +superior lord, in consideration of certain services to be rendered to such +lord by the possessor of this property, and the terms or manner of their +possession is therefore called a <i>tenure</i>. Thus all the land in the +kingdom is supposed to be held, mediately or immediately, of the sovereign +who is consequently styled the lord or lady <i>paramount</i>.</p> + +<p>All tenures being thus derived, or supposed to be derived, from the +sovereign, those who held directly under such sovereign, and in right of +the crown and dignity, were called tenants <i>in capite</i>, or <i>in chief</i>, +which was the most honourable species of tenure, although at the same time +it subjected the tenants to far greater and more burthensome services than +the inferior tenures did, and this distinction ran through all the +different sorts of<span class="pagenum"><a name="Page_96" id="Page_96">[Pg 96]</a></span> tenure. William I., and other feudal sovereigns, +although they made large and numerous grants of land, always reserved a +rent or certain annual payments, which were collected by the sheriffs of +the counties in which the lands lay, to show that they still retained the +<i>dominium directum</i> in themselves.</p> + +<p>With our ancestors the most honourable and highly esteemed species of +tenure was that by knight service, and this was purely and entirely a +military tenure, being, in fact, the result of the feudal establishment in +England. Now to make a tenure by knight service, a determinate quantity of +land was necessary, which was called a knight’s fee, <i>feodum militare</i>; +the measure of which in 3 Edward I., was estimated at twelve ploughlands, +and its value (although it varied with the times) in the reigns of Edward +I. and Edward II. was stated at £20 per annum. The knight who held this +proportion of land was bound to attend his lord to the wars for forty days +in every year, if called upon so to do, which attendance was his rent or +service for the land he claimed to hold. If, however, he held only half a +knight’s fee, he was only bound to attend his lord twenty days, and so on +in proportion. This tenure of knight<span class="pagenum"><a name="Page_97" id="Page_97">[Pg 97]</a></span> service drew with it several +consequences as inseparably incident to the tenure in chivalry, and one of +the most profitable, and, at the same time, arbitrary of these was +marriage. This incident called marriage was the right which the lord +possessed of disposing of his infant wards in matrimony, at their peril of +forfeiting to him, in case of their refusing a suitable match, a sum of +money equal to the value of the marriage; that is, what the suitor was +willing to pay down to the lord as the price of marrying his ward; and +double the market value was to be forfeited, if the ward presumed to marry +without the consent of the lord.</p> + +<p>The personal attendance rendered necessary by knight service growing +troublesome and inconvenient in many respects, the tenants found means of +compounding for it; first, by sending others in their stead, and then in +process of time making a pecuniary satisfaction to the lord in lieu of it. +This pecuniary satisfaction at last came to be levied by assessments at so +much for every knight’s fee; the first time this appears to have been done +was in 5 Henry II., on account of his expedition to Toulouse; but it soon +became so universal that personal attendance fell quite into disuse. From<span class="pagenum"><a name="Page_98" id="Page_98">[Pg 98]</a></span> +this period we find, from our ancient histories, that when the kings went +to war, they levied scutages on their tenants, that is, on all the +landowners of the Kingdom, to defray their expenses, and to pay for the +hire of troops.</p> + +<p>These assessments, in the time of Henry II., seem to have been made in a +most arbitrary manner, and entirely at the king’s will and pleasure. The +prerogative became, indeed, abused to such an extent, that at last it +became a matter of national clamour, and King John was obliged to consent +by his <i>Magna Carta</i>, that no scutage should be imposed without the +consent of Parliament. But this clause was omitted in the Charter of Henry +III., where we only find that scutages, or escuage, should be taken as +they were used to be taken in the time of Henry II.; that is, in a +reasonable and moderate manner. Yet afterwards, by statute 25 Edward I., +and many subsequent statutes, it was again provided, that the king should +take no aids or tasks but by the common assent of the realm; hence it was +held that scutage, or escuage, could not be levied except with the consent +of Parliament; such scutages being indeed the groundwork of all<span class="pagenum"><a name="Page_99" id="Page_99">[Pg 99]</a></span> +succeeding subsidies, and the land tax of later times.</p> + +<p>It will easily be seen that with the degenerating of knight service, or +personal military duty into a pecuniary assessment, all the advantages +were destroyed, and nothing in fact remained but the hardships. Instead of +having a national militia, composed of barons, knights, and gentlemen, +bound by their interests and their honour to defend the king and country, +the whole system of military tenures tended to nothing else but a wretched +means of raising money to pay an army of occasional mercenaries. At length +the military tenures, with all their heavy appendages were destroyed at +one blow by statute, 12 Charles II., C. 24, which enacts “that the courts +of wards and liveries, and all wardships, liveries, primer seisins, and +ousterlemains, values and forfeitures of marriage, by reason of any tenure +of the king or others, be totally taken away. And that all fines for +alienation, tenures by homage, knight service, and escuage, and also aids +for marrying the daughter, or knighting the son, and all tenures of the +king <i>in capite</i>, be likewise taken away. And that all sorts of tenures, +held of the king or others, be turned into free and common socage;<span class="pagenum"><a name="Page_100" id="Page_100">[Pg 100]</a></span> save +only tenures in frank almoign, copyholds, and the honorary services of +grand serjeanty.”</p> + +<p>Another ancient tenure was that by <i>Grand Serjeanty</i>, whereby the tenant +was bound, instead of serving the king generally in the wars, to do some +special honorary service for the king in person; as to carry his banner, +his sword, or the like; or to be his butler, champion, or other officer at +his coronation. Tenure by <i>cornage</i> was a species of grand serjeanty, +being a grant of land upon condition that the tenant was to wind a horn +when the Scots or other enemies entered the land, in order to warn the +king’s subjects.</p> + +<p>The tenure of petit serjeanty bears a great resemblance to the tenure of +grand serjeanty; for as the one is a personal service, so the other is a +rent or render, both tending to some purpose relative to the king’s +person. Petit serjeanty as defined by Littleton, consists in holding lands +of the king, by service of rendering to him annually some small implement +of war, as a bow, a sword, a lance, an arrow, or the like. This, of +course, is but socage in effect, for it is no personal service, but a +certain rent. The tenure by which the grants to the Duke of Marlborough +and the Duke of Wellington, for their great military<span class="pagenum"><a name="Page_101" id="Page_101">[Pg 101]</a></span> services to the +country, are held, are of this kind, each rendering a small flag or ensign +annually, which is deposited in Windsor Castle. Bury House (New Forest), +the property of Sir Charles Mill, Bart., is held by the tenure of +presenting the king whenever he enters the New Forest with a brace of +milk-white greyhounds. A breed of these dogs is preserved by the family in +readiness. King George III. received dogs in recognition of this tenure in +1789, and the incident is the subject of one of Lawrence’s pictures.</p> + +<p>In Beckwith’s edition of Blount’s “Fragmenta Antiquitatis,” the following +tenure is inserted from the “Black Book of Hereford.”—“The tenants at +Hampton Bishop, in the county of Hereford, were to get yearly six horse +loads of rods or wattels, in the Hay Wood, near Hereford, and bring them +to Hereford to make booths (or hurdles to pen sheep in) at the fair when +they should be required; and for every load of the said rods they were to +be allowed a halfpenny at the fairs.”</p> + +<p>This tenure would appear to relate to one particular fair only, and not to +all the fairs formerly held at Hereford. The particular fair is supposed +to have been the one beginning on<span class="pagenum"><a name="Page_102" id="Page_102">[Pg 102]</a></span> May 19th, and commonly called the +nine-days’ fair, from the circumstance of its continuing for that length +of time. From time immemorial this fair was proclaimed, with certain +formalities, by the Bishop of Hereford’s bailiff, or his deputy, the tolls +of the fair belonging to one or both of these officers. During the +continuance of the fair, the Bishop’s bailiff superseded the Mayor of +Hereford as acting magistrate, the fair being held in a street opposite +the Bishop’s palace.</p> + +<p>Brienston, in Dorsetshire, was held in grand serjeanty by a curious +jocular tenure, viz.:—by finding a man to go before the king’s army for +forty days when he should make war in Scotland (some records say in Wales) +bareheaded and bare-footed, in his shirt, and linen drawers, holding in +one hand a bow, and in the other an arrow without feathers.<a name='fna_6' id='fna_6' href='#f_6'><small>[6]</small></a></p> + +<p>The Dukes of Athol hold the Blair Athol estate by the tenure of presenting +a white rose to the sovereign whenever he visits them there.</p> + +<p>Land was frequently held by the tenure of protecting the church property +in times of war. Scott tells us how the Bishop of Durham gave<span class="pagenum"><a name="Page_103" id="Page_103">[Pg 103]</a></span> lands to +the Danish Count, Witikind, to be held by this tenure. The story is not +true, but the tenure is;</p> + +<p class="poem">Broad lands he gave him on Tyne and Wear,<br /> +To be held of the Church by bridle and spear;<br /> +Part of Monkwearmouth, of Tynedale part,<br /> +To better his will and soften his heart.<br /> +<span style="margin-left: 10em;"><i>Harold the Dauntless.</i></span><br /> +<span style="margin-left: 12em;">Canto i., IV.</span></p> + +<p>The tenure of ancient demesne exists in those manors, and in those only, +which belonged to the crown in the reigns of Edward the Confessor and +William the Conqueror, and in Domesday Book are called <i>Terrœ Regis +Edwardi</i>. The tenants are freeholders and possessed certain privileges, +the chief of which was a right to sue and be sued only in their lord’s +court.</p> + +<p>Another kind of ancient tenure, still subsisting, is the tenure of +frankalmoign, or free alms, and this is the tenure by which the lands of +the church are for the most part held. This tenure is expressly excepted +from the statute, 12 Charles II., by which the other ancient tenures were +destroyed. It has no peculiar incidents, the tenants not being bound even +to do fealty to the lords, because, as Littleton says, the prayers and<span class="pagenum"><a name="Page_104" id="Page_104">[Pg 104]</a></span> +other divine services of the tenants are better for the lords than any +doing of fealty. As the church is a body having perpetual existence, there +is, moreover, no chance of any escheat. By this tenure almost all the +monasteries and religious houses held their lands. It was an old Saxon +tenure; and continued under the Norman revolution, through the great +respect that was shewn to religion and religious men in ancient times. +This too, no doubt, is the reason that tenants in frankalmoign were +discharged from all other services except the repairing of highways, +building castles, and repelling invasions; just in fact as the Druids, +among the Ancient Britons, had similar privileges. The tenure being purely +spiritual, the lord had no remedy for neglect by distress or otherwise, +but merely a complaint to the ordinary to correct it.</p> + +<p>One of the most interesting tenures is that of Borough English. There are +a great number of manors throughout the country in which this tenure +prevails; they are not however confined to one county or one district. +Borough English is the right of succession of the youngest son, instead of +the eldest, to real estate in case of intestacy, but the custom is not +always the same;<span class="pagenum"><a name="Page_105" id="Page_105">[Pg 105]</a></span> it differs in different manors. In some it is confined +to the sons only, and if there should be no son the estate is shared +equally amongst all the daughters. In other manors, principally Sussex, +the youngest daughter inherits. Again, there are cases to be found where +if there be no children, the youngest brother inherits, and in others it +goes according to the rules of the common law. There are, moreover, places +in which the copyhold land only is Borough English, while the freehold is +held by the ordinary tenure, and in others the freehold and copyhold alike +follow the Borough English custom.</p> + +<p>The area over which this Borough English tenure prevails is an exceedingly +wide one. It is found in nearly every part of Europe, except perhaps Italy +and Spain—in Germany, Hungary, the Ural mountains, and in Asia as far as +the borders of China. Many attempts have been made to explain the custom. +Littleton suggests that the youngest son, by reason of his tender age, is +not so capable as the rest of his brethren to help himself. It is possible +the origin may have come to us from the Tartars, amongst whom this custom +of descent to the youngest son also prevails. That nation is composed +almost<span class="pagenum"><a name="Page_106" id="Page_106">[Pg 106]</a></span> entirely of shepherds and herdsmen, and the elder sons, as soon as +they are capable of leading a pastoral life, migrate from their father +with a certain allotment of cattle, and go to seek a new habitation. And +thus we find that, among many other northern nations, it was the custom +for all the sons, but one, to migrate from the father, which one became +his heir.</p> + +<p>The tenure of Gavelkind prevails principally in the County of Kent. It is +universally known what struggles the Kentish men made to preserve their +ancient liberties, and with how much success those struggles were +attended. It seems fair therefore, to conclude that this custom was a part +of those liberties, agreeably to the general opinion, that Gavelkind, +before the Norman Conquest, was the general custom of the realm. The +distinguishing properties of this tenure are various; some of the +principal are these: 1. The tenant is of age sufficient to alienate his +estate by feoffment at the age of fifteen. 2. There never was any escheat +in case of an attainder and execution for felony; their maxim being “the +father to the bough, the son to the plough.” 3. In most places, the tenant +had the power of devising his lands by will, before the statute for<span class="pagenum"><a name="Page_107" id="Page_107">[Pg 107]</a></span> that +purpose was made. 4. The lands descend not to the eldest, youngest, or any +one son only, but to all the sons together. This last incident is, of +course, the most important affecting the tenure, and not only this, but +also the most interesting, in that, like Borough English, it prevails to +the present day. True it is that certain lands in Kent, once Gavelkind, +have been made descendable according to the rules of the common law, by +special statutes; however, these statutes only affect a very small portion +of the county.</p> + +<p>Gavelkind and Borough English, being customs already acknowledged by the +law, need not be specially pleaded; it is sufficient to show that the +lands are affected and regulated by the same; but all other private +customs must be pleaded.</p> + +<p>The ancient Barons of Buccleuch, both from feudal splendour and from their +frontier situation, retained in their household at Branksome a number of +gentlemen of their own name, who held lands from their chief for the +military service of watching and guarding his castle.</p> + +<p class="poem">Nine and twenty knights of fame<br /> +<span style="margin-left: 1em;">Hung their shields in Branksome Hall</span><br /> +<span class="pagenum"><a name="Page_108" id="Page_108">[Pg 108]</a></span>Nine and twenty squires of name<br /> +<span style="margin-left: 1em;">Brought them their steeds from bower to stall.</span><br /> +Nine and twenty yeomen tall<br /> +<span style="margin-left: 1em;">Waited duteous on them all.</span><br /> +They were all knights of metal true,<br /> +<span style="margin-left: 1em;">Kinsmen to the bold Buccleuch.</span><br /> +<span style="margin-left: 6em;">“Lay of the Last Minstrel.”—Scott.</span><br /> +<span style="margin-left: 8em;">Canto i., III.</span></p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_109" id="Page_109">[Pg 109]</a></span></p> +<h2>Laws of the Forest.</h2> +<p class="center"><span class="smcap">By Edward Peacock, f.s.a.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">The</span> subject of “The Laws of the Forest” and of the wild things which have +their homes therein, both in our own island and elsewhere, has been a +matter of discussion for ages; but very little has been written thereon +which is of much service, except to legal specialists. It is, indeed, one +of those difficult subjects which is hardly possible to make interesting +to those whose thoughts range in the present rather than in the past.</p> + +<p>There can be no doubt whatever, that from the birth of the human race, +long ere we can trace our history back in written documents, the killing +of animals has been a sport as well as a means of procuring food; both +these may be considered, whatever certain dreamers may aver to the +contrary, as among the necessities of human life. We cannot be quite +certain whether the stone axes, hammers, and spears, of which we see such +numbers in our museums, were wrought in<span class="pagenum"><a name="Page_110" id="Page_110">[Pg 110]</a></span> anticipation of the delights of +the chase, or whether they were simply, what may be called, the tools of +the primæval butcher; but, knowing as we do, the contempt in which every +man at the present hour is held, who having wealth and leisure enough to +indulge in what is called “sport,” abstains from amusing himself in some +form of slaughter, we may well believe that our palæolithic predecessors, +however empty the larder might be, would try to impose on themselves that +what they did was done to amuse themselves, as a manly exercise, not a +stern necessity. In confirmation of this, we must call mind that there +have been found several weapons with the reindeer and other animals +carved, or perhaps it would be better to say scratched, upon them with a +high degree of pictorial excellence; we may therefore infer that +amusement, as well as appetite, occupied the minds of those early artists, +who so deftly represented the creatures on whom they waged war. Had they +merely been regarded as things to be eaten, such as the tinned meats we +now buy from the provision merchant, they would never have been held +worthy of artistic treatment.</p> + +<p>One of the oldest proverbs that have come down<span class="pagenum"><a name="Page_111" id="Page_111">[Pg 111]</a></span> to us, if indeed it be not +the very oldest, is that wherein we are told something</p> + +<p class="poem">“Of Nimrod the founder<br /> +<span style="margin-left: 1em;">Of empire and chace,</span><br /> +Who made the woods wonder<br /> +<span style="margin-left: 1em;">And quake for their race.”</span></p> + +<p>That he was the first of the great hunters is a dream of Lord Byron’s, not +in any way countenanced by Holy Scriptures, or any of the old authorities. +We are simply told in Genesis that Nimrod was a son of Cush, and that “He +began to be a mighty one in the earth. He was a mighty hunter before the +Lord. Wherefore it is said, even as Nimrod the mighty hunter before the +Lord.”<a name='fna_7' id='fna_7' href='#f_7'><small>[7]</small></a> The precise meaning of this has been questioned. It most likely +signifies that Nimrod was the first person who organised those mighty +hunting expeditions, which were so famous in the days of the great +Oriental despotisms. From these tyrants it is probable that the Forest +Laws of Mediæval Europe had their origin. In the sculptures that have been +unearthed in the dead cities of the East, hunting scenes of great +magnificence are not uncommon, nor are they unknown in Egypt, where, +however,<span class="pagenum"><a name="Page_112" id="Page_112">[Pg 112]</a></span> the capture of fish was the more common sport, as the Nile may +be said to have been at every man’s door.</p> + +<p>That Forest Laws of some kind or other existed in these far-off times may +be accepted as certain, and we may take it for granted, when we call to +mind the general legislation then in force, that they were terribly cruel +according to our modern ideas, but we can at present only arrive at these +conclusions by inference.</p> + +<p>When Rome became the mistress of the world, we know that in many parts of +the empire the wild creatures were rigorously preserved, but we do not +think that they were often hunted by their owners. Such was rather the +duty of freed men and slaves. Those which were fit for food were preserved +as delicacies for the table, but the larger beasts, such as the lion, the +tiger, the bear, the lynx, and perhaps even the wild cat, were reserved +for the sports of the amphitheatre. Amphitheatres were much more common +than is usually supposed. In a few places their remains exist still, but +most of them have perished, serving as quarries for stone during the whole +of the Middle Ages, and in Mohammedan lands to a much more modern period, +perhaps even<span class="pagenum"><a name="Page_113" id="Page_113">[Pg 113]</a></span> to the present day. We are not sure that any list of them +has been preserved, or could now be compiled, but they were so numerous +throughout the empire that the possession of wild beasts on the immense +estates of the Roman patricians must have been a great source of wealth to +their owners. The Roman nobles did not care for field-sports as the +northern nations did. A feeling or instinct of this kind dies hard. At the +present day the Italian cares much less for such amusements than the +Englishman, the German, or the inhabitants of northern France. Virgil, who +represents more fully than any other heathen poet, the feelings of the +better sort of Romans of his own time, says, attributing the words to +another, but evidently speaking his own thoughts:—</p> + +<p class="poem">“Above aught else let the woods be dear to me.”<a name='fna_8' id='fna_8' href='#f_8'><small>[8]</small></a></p> + +<p>This was, however, not for the sake of the slaughter that might be +perpetrated therein, but on account of their many beauties and the +grateful shade which they afforded. Virgil was in many respects a modern +in his love of scenery, though we doubt whether snow-clad mountains and +craggy heights would have appealed to him as they have<span class="pagenum"><a name="Page_114" id="Page_114">[Pg 114]</a></span> done to us during +the short time that has elapsed since we have been able to see them +without discomfort.</p> + +<p>When the Roman Empire was in the zenith of its glory, there does not seem +to have been in Gaul or Britain any vast stretches of forest. The country +was no doubt well wooded when we compare it with the France or England of +to-day, for during the last two hundred years trees have been wantonly +destroyed, to the great injury of agriculture as well as local beauty, for +the sake of supplying land-owners with ready money. Long continued wars +have also desolated the national forests for the sake of supplying timber +to the shipbuilder.</p> + +<p>After the various invasions which desolated so many parts of the Roman +Empire, large portions of Gaul reverted to a state of nature. Towns and +villages were burned, their inhabitants slaughtered, or scattered far away +from their homes. A picturesque account of what followed is given in +Montalembert’s <i>Les Moines d’Occident</i>, from which we gather that much of +Gaul had reverted to a state of nature, such as it was in ere civilisation +had made its first incursions on the untamed wilderness. The lives of the +early Gallic saints, found scattered<span class="pagenum"><a name="Page_115" id="Page_115">[Pg 115]</a></span> through the many volumes of the +<i>Acta Sanctorum</i>, bear the like testimony, as do many parts of the old +romances, the scenes of which so often lie in the trackless forest.</p> + +<p>In England, things may not have been quite so woeful. The population, we +believe, never became so scanty as in Eastern Gaul. It is still a matter +of controversy whether here the native folk were slaughtered or driven +into the mountains of Wales, or whether the greater part of them were made +bondmen. We hold the latter opinion, but the whole subject is beset with +great difficulties. However this may be, it is quite certain that the +population was very much reduced; many wide districts, which had been +carefully cultivated by the Roman settlers, or natives who had adopted +their manners, were laid waste. The picturesque villas, with their +adjoining peasant homesteads, were all gone—burnt with fire,—and +woodland, scrub, or mere sandy desolation supplied the place of the +adjoining pleasure-grounds, farms, and pastures. One of these desolate +tracts named Andredsweald stretched from Kent to the Hampshire Downs, at +some points almost touching the Thames. Another great forest appears to +have extended from a point a little to the north of<span class="pagenum"><a name="Page_116" id="Page_116">[Pg 116]</a></span> London, till it +reached the forests of Rockingham and Sherwood. The great level of +Hatfield Chace seems to have been a spur of this, if not so, they were but +separated by a narrow stretch of cultivated land from the forest itself. +Deer were plentiful on Hatfield Chace until the reign of Charles the +First. They even continued to exist longer on the eastern side of the +Trent, on a long and narrow belt of scrub which extended from Morton, near +Gainsburgh, to the point where the Trent falls into the Humber. An +ancestor of our own, who died as recently as 1758, was accustomed to hunt +them there. As well as these larger forests, the whole land was dotted +over with places once the sites of Roman dwellings, but which now had +become either mere wastes, or woodlands covered with tall timber trees, +interspersed with the elder, the nut, the thorn, the birch, the maple, and +the alder. In some places the yew and the holly were abundant also, but +they seem to have flourished only in widely separated patches.</p> + +<p>The Saxon and the Danish conquests came about gradually, and the country +was in so disturbed a state that it was impossible for rigid Forest Laws +to be enacted, or even if<span class="pagenum"><a name="Page_117" id="Page_117">[Pg 117]</a></span> written on parchment to be put in force. +Besides this, the Saxon and Danish leaders were of a different character +from their Norman successors. A vague memory still haunted them of the +free life once lived in Germany and Scandinavia; a life as different as +can well be imagined from that of modern democracy, but still one in which +every thrall, bondman, and slave had certain well ascertained rights, +which were under the protection of the State and the Church.</p> + +<p>Thus it came to pass that there were in almost every district stretches of +forest land, which were, in a great degree, open to the people, where men +could fell timber for their dwellings and slaughter animals for food; +though even before the Norman Conquest had come as a shadow on the +liberties of Englishmen, there is reason for thinking that forestal-rights +had become, in name at least, a privilege of the king and his great +theïgns.</p> + +<p>The Norman Forest Law was of a similar character to that which William’s +forefathers had enforced in Normandy. The country, which we have for ages +known as France, was, in earlier times, broken up into many provinces, and +it was only by a slow process that it became one. Each<span class="pagenum"><a name="Page_118" id="Page_118">[Pg 118]</a></span> of these provinces +had a Forest Law of its own. When the Normans settled in the goodly land +which they called after themselves, they retained the customs which they +found there. When William transferred the laws of his old duchy to his new +kingdom, it could, at the first, only be by an act of favour that anyone +could kill a beast of chase except himself or his retainers. This from the +nature of things did not last long. William never could have intended to +retain the whole of the vast territories which the victory of Senlac had +given him in his own possession. He divided the kingdom among his chief +tenants—tenants <i>in capite</i>,—and to these great men, with some slight +exceptions, he handed over all forestal rights which existed in their +domains, the king retaining to himself for his own pleasure, and as a mark +of dignity, some great forests, which for ages have remained in royal +hands.</p> + +<p>Notwithstanding certain Danish and Saxon charters, it has always been +traditionally held that our Forest Laws come from William the First, and +this is substantially true, though objections to the statement might be +taken. It would not be unsafe to say that no one but the Conqueror could +have enforced so drastic a<span class="pagenum"><a name="Page_119" id="Page_119">[Pg 119]</a></span> regulation. As the Bishop of Oxford has so +truly said, “The King made and kept good peace. The Dane-geld and the +Forest-Law were not too much to pay for the escape from private war and +feudal disruption.”<a name='fna_9' id='fna_9' href='#f_9'><small>[9]</small></a> It is true that William had desolated large tracts +of land to make them serve him for the chase; the crime was terrible, +though exaggerated by modern historians; but he had many noble qualities, +so that those who had not personally suffered were willing to overlook the +evil. With his son, William the Red, the Forest Laws became unbearable, +and were hated by baron and villain alike.</p> + +<p>He was one of the worst kings which ever disgraced the English throne. In +a deeply religious age he was wantonly opposed to all godliness. Alike the +enemy of God and Man, a type and representative of all things evil, we +need not wonder when he fell by an arrow in the New Forest, that men saw a +visible judgment of God.</p> + +<p>To him, and to Henry the First, are commonly ascribed the ferocity of the +Forest Laws. Men believed that in after time kings would have<span class="pagenum"><a name="Page_120" id="Page_120">[Pg 120]</a></span> mitigated +matters had it been in their power. They said, and there is much truth in +the averment, that these bad laws required the support of an army of evil +men to work them efficiently, and that for the ordinary court officials, +or the king himself, to thwart these people would be especially dangerous. +When we call to mind what have been from time to time the characters of +the farmers of the taxes at Naples, and various parts of France, we cannot +deny that there is much truth in the statement.</p> + +<p>Affairs reached their most evil point when Henry II. was King. It was then +the custom for the royal foresters to be a complete law unto themselves, +they put to death and mutilated whom they would without any trial +whatever, or with but the mockery of the water-ordeal, a farce which had +already been condemned by the Church, but which was very fashionable with +ruffians who were anxious to secure a conviction. One of these fellows +laid hold of an ecclesiastic, with the intention of extracting from him a +large sum of money. Well was it for him that he was of the diocese of +Lincoln, and that at that time Hugh of Avalon was its bishop. The thunders +of excommunication were at once heard, the<span class="pagenum"><a name="Page_121" id="Page_121">[Pg 121]</a></span> ecclesiastic escaped from the +forester’s clutches, and from that time forward, though much yet remained +to be done, the tide turned, and the Forest Laws were administered with +something more nearly approaching to justice.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_122" id="Page_122">[Pg 122]</a></span></p> +<h2>Trial by Jury in Old Times.</h2> +<p class="center"><span class="smcap">By Thomas Frost.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">When</span> we congratulate ourselves, as we are so apt to do, on the length of +time the system of trial by jury has been established in England, and the +safeguard it affords against attempts to strain the law to the prejudice +of the accused, we are often unmindful of the fact that the institution +has not always proved a safeguard when the court, acting under the +influence of the Crown, endeavoured to obtain a conviction. It was only in +the latter half of the sixteenth century that juries began to evince that +determination not to yield their own judgment to the wishes of those in +high authority, which became further developed in the course of the +seventeenth. An interesting illustration of the old spirit of judges, and +the new spirit of juries, is afforded by the trial of Sir Nicholas +Throckmorton, in 1554, on a charge of high treason, in conspiring the +death or deposition of the Queen, and the seizure by force of arms of the +Tower of London. The<span class="pagenum"><a name="Page_123" id="Page_123">[Pg 123]</a></span> prosecution was conducted by Serjeant Stanford and +the Attorney-General, Griffin, the former leading; and it is noteworthy +that both they and Chief Justice Bromley questioned the prisoner in much +the same manner as is still customary in France and Belgium, striving to +procure evidence that would convict him out of his own mouth. The +endeavour failed, and the only criminating evidence against the prisoner +was contained in the alleged confessions of Winter and Crofts, who, +however, were not called as witnesses.</p> + +<p>The jury, after several hours’ deliberation, returned a verdict of not +guilty, upon which the Lord Chief Justice addressed them in threatening +tones, saying, “Remember yourselves better. Have you considered +substantially the whole evidence as it was declared and recited? The +matter doth touch the Queen’s highness and yourselves also. Take good heed +what you do.” The jury were firm, however, and the foreman replied to the +remonstrance of the bench, “We have found him not guilty, agreeable to all +our consciences.” Then the Attorney-General rose, and addressing the +court, said, “An it please you, my lords, forasmuch as it seemeth these +men of the jury, which have strangely acquitted the prisoner of his<span class="pagenum"><a name="Page_124" id="Page_124">[Pg 124]</a></span> +treasons whereof he was indicted, will forthwith depart the court, I pray +you for the Queen that they and every one of them may be bound in a +recognizance of £500 a-piece, to answer to such matters as they shall be +charged with in the Queen’s behalf, whensoever they shall be charged or +called.” The court went beyond even this audacious request, for they +actually committed the jury to prison! Four of them were discharged +shortly afterwards, having so little moral stamina left as to make a +humble confession that they had done wrong; but the remaining eight were +brought before the Star Chamber and severely dealt with, three being +ordered to pay a fine of £2,000 each, and the others £200 each.</p> + +<p>In the following reign, in a case in which three persons were indicted for +murder, and the jury found them guilty of manslaughter only, contrary to +the direction of the court, the jurors were both fined and bound in +recognizances for their future “good behaviour.” A decision of the Lord +Chancellor, the two Chief Justices, and the Chief Baron, in the reign of +James I., sets forth that when a person is found <i>guilty</i> on indictment, +the jury should not be questioned; but when a jury has acquitted a +prisoner against what the court<span class="pagenum"><a name="Page_125" id="Page_125">[Pg 125]</a></span> holds to be proof of guilt, they may be +charged in the Star Chamber, “for their partiality in finding a manifest +offender not guilty.” In 1667, we find this view extended to the case of +grand juries ignoring a bill on grounds which the court did not consider +sufficient. Chief Justice Kelying in that year having fined a grand jury +of the County of Somerset, for not finding a true bill against a man +accused of murder; but, says the report, “because they were gentlemen of +repute in the county, the court spared the fine.” This case, and several +others in which the same judge had acted in a similar manner, were brought +under the notice of the House of Commons, however, and that assembly +resolved “that the precedents and practice of fining or imprisoning jurors +for verdicts is illegal.”</p> + +<p>Notwithstanding this resolution of the House of Commons, William Penn, and +another member of the Society of Friends, named Mead, being indicted at +the Old Bailey for having, with other persons unknown, unlawfully and +tumultuously assembled in Gracechurch Street, in the City of London, the +Recorder dealt with the jury in a manner which caused the illegality of +fining jurors for their verdicts to be again brought into<span class="pagenum"><a name="Page_126" id="Page_126">[Pg 126]</a></span> question. The +indictment set forth that Penn, by agreement with and abetment of Mead, +did in the open street speak and preach to the persons there assembled, by +reason whereof a great concourse of people gathered and remained a long +time, in contempt of the King and the law, and to the great terror and +disturbance of many of His Majesty’s liege subjects. The trial took place +before the Recorder, the Lord Mayor, and the Aldermen; and when witnesses +had deposed that Penn had preached, and that Mead was there with him, the +Recorder summed up the evidence, and the jury retired to consider their +verdict. They were absent a considerable time, at length returning with +the verdict that Penn was “guilty of speaking in Gracechurch Street.”</p> + +<p>“Is that all?” the Recorder asked.</p> + +<p>“That is all I have in commission,” replied the foreman.</p> + +<p>“You had as good say nothing,” observed the Recorder, and the Lord Mayor +added, “Was it not an unlawful assembly? You mean he was speaking to a +tumult of people there.”</p> + +<p>“My lord,” returned the foreman, “that is all I have in commission.”</p> + +<p>“The law of England,” said the Recorder “will<span class="pagenum"><a name="Page_127" id="Page_127">[Pg 127]</a></span> not allow you to part until +you have given in your verdict.”</p> + +<p>“We have given in our verdict,” returned the jury, “and we can give in no +other.”</p> + +<p>“Gentlemen,” said the Recorder, “you have not given in your verdict, and +you had as good say nothing; therefore go and consider it once more, that +we may make an end of this troublesome business.”</p> + +<p>The jury then asked for pen, ink, and paper, and the request being +complied with, they again retired, returning after a brief interval with +their verdict in writing. They found Penn “guilty of speaking or preaching +to an assembly met together in Gracechurch Street,” and Mead not guilty.</p> + +<p>“Gentlemen,” said the Recorder, regarding the jury angrily, “you shall not +be dismissed till we have a verdict that the court will accept; and you +shall be locked up, without meat, drink, fire, and tobacco. You shall not +think thus to abuse the court. We will have a verdict, or you shall starve +for it.”</p> + +<p>Penn protested against this course, upon which the Recorder ordered the +officers of the court to stop his mouth or remove him. The jury not<span class="pagenum"><a name="Page_128" id="Page_128">[Pg 128]</a></span> +leaving their box, the Recorder again directed them to retire and +re-consider their verdict. Penn made a spirited remonstrance. “The +agreement of twelve men,” said he, “is a verdict in law, and such a one +having been given by the jury, I require the clerk of the peace to record +it, as he will answer at his peril. And if the jury bring in another +verdict contradictory to this, I affirm they are perjured men in law. You +are Englishmen,” he added, turning to the jury, “mind your privilege; give +not away your right.” The court then adjourned to the following morning, +when the prisoners were brought to the bar, and the jury, who had been +locked up all night, were sent for. They were firm of purpose, and through +their foreman persisted in their verdict.</p> + +<p>“What is this to the purpose?” demanded the Recorder, “I will have a +verdict.” Then addressing a juror, named Bushel, whom he had threatened on +the previous day, he said, “you are a factious fellow; I will set a mark +on you, and whilst I have anything to do in the city, I will have an eye +on you.”</p> + +<p>Penn again protested against the jury being threatened in this manner, +upon which the Lord Mayor ordered that his mouth should be stopped,<span class="pagenum"><a name="Page_129" id="Page_129">[Pg 129]</a></span> and +that the gaoler should bring fetters and chain him to the floor; but it +does not appear that this was done. The jury were again directed to retire +and bring in a different verdict, and they withdrew under protest, the +foreman saying, “We have given in our verdict, and all agreed to it; and +if we give in another, it will be a force upon us to save our lives.”</p> + +<p>According to the narrative written by Penn and Mead, and quoted in +Forsyth’s “History of Trial by Jury,” this scene took place on Sunday +morning, and the court adjourned again to the following day, when, unless +they were supplied with food surreptitiously, they must have fasted since +Saturday. The foreman gave in their verdict in writing, as before, to +which they had severally subscribed their names. The clerk received it, +but was prevented from reading it by the Recorder, who desired him to ask +for a “positive verdict.”</p> + +<p>“That is our verdict,” said the foreman. “We have subscribed to it.”</p> + +<p>“Then hearken to your verdict,” said the clerk. “You say that William Penn +is not guilty in manner and form as he stands indicted; you say that +William Mead is not guilty in manner and<span class="pagenum"><a name="Page_130" id="Page_130">[Pg 130]</a></span> form as he stands indicted; and +so say you all.”</p> + +<p>The jury responded affirmatively, and their names were then called over, +and each juror was commanded to give his separate verdict, which they did +unanimously.</p> + +<p>“I am sorry, gentlemen,” the Recorder then said, “you have followed your +own judgments and opinions, rather than the good and wholesome advice +which was given you. God keep my life out of your hands! But for this the +court fines you forty marks a man, and imprisonment till paid.”</p> + +<p>Penn was about to leave the dock, but was prevented from doing so, upon +which he said, “I demand my liberty, being freed by the jury.”</p> + +<p>“You are in for your fines,” the Lord Mayor told the prisoners.</p> + +<p>“Fines, for what?” demanded Penn.</p> + +<p>“For contempt of court,” replied the Lord Mayor.</p> + +<p>“I ask,” exclaimed Penn, “if it be according to the fundamental laws of +England, that any Englishman should be fined or amerced but by the +judgment of his peers or jury; since it expressly contradicts the +fourteenth and twenty-ninth chapters of the Great Charter of England,<span class="pagenum"><a name="Page_131" id="Page_131">[Pg 131]</a></span> +which say, ‘No freeman ought to be amerced but by the oath of good and +lawful men of the vicinage.’”</p> + +<p>“Take him away,” cried the Recorder.</p> + +<p>“They then,” continues the narrative, “hauled the prisoners into the +bail-dock, and from thence sent them to Newgate, for non-payment of their +fines; and so were their jury. But the jury were afterwards discharged +upon an <i>habeas corpus</i>, returnable in the Common Pleas, where their +commitment was adjudged illegal.” Even then, judges appear to have +remained unconvinced of the illegality of the practice, or stubborn in +their desire to enforce their own views or wishes upon juries; for the +question was not regarded as finally settled until the decision in the +Court of Common Pleas was clinched, in the same year, by a similar +judgment of the Court of King’s Bench.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_132" id="Page_132">[Pg 132]</a></span></p> +<h2>Barbarous Punishments.</h2> +<p class="center"><span class="smcap">By Sidney W. Clarke.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">That</span> the world has become more merciful as it has grown older, is a truism +at once apparent to anyone who gives even a cursory glance at any of the +numerous works dealing with the criminal laws of the olden time. Still the +approach to the most excellent quality has been regretably and painfully +slow, and it is surely a stain on the boasted enlightenment of the +nineteenth century, that the century had run through nearly three-fourths +of its existence before the terrible and vindictive punishment of drawing +and quartering disappeared from our statute book. In most States the early +laws have been of a blood-thirsty and fear-inspiring nature, but what +excuse can be urged for the fact that until the fourth day of July, in the +year of Grace 1870, the punishment ordained by law for the crime of high +treason, was that the unfortunate offender should be drawn on a hurdle to +the place of execution, there to be hanged by<span class="pagenum"><a name="Page_133" id="Page_133">[Pg 133]</a></span> the neck till he be dead; +that his head be severed from his body; that his body be divided into four +quarters; and that his head and quarters be at the disposal of the Crown. +In Blackstone’s time the sentence was still more savage, or, as the great +Commentator puts it, “very solemn and terrible.” It was that the offender +be drawn to the gallows, and not be carried or walk; “though usually,” +says Blackstone, “by connivance, at length ripened by humanity into law, a +sledge or hurdle was allowed to preserve the offender from the extreme +torment of being dragged on the ground or pavement;” that he be hanged by +the neck and then cut down alive; that his entrails be taken out, and +burned before his eyes, while he was still alive; that his head be cut +off, his body be divided into four parts, and his head and quarters be at +the King’s disposal. What our tender-hearted monarchs did with the +quivering pieces of flesh let the stones of Temple Bar, the City Gates, +and the Tower bear witness. Here are a couple of extracts from that +perennial fountain of information, the diary of Mr. Samuel Pepys. Under +date of October 13th, 1660, he writes, “I went out to Charing Cross to see +<span class="pagenum"><a name="Page_134" id="Page_134">[Pg 134]</a></span>Major-General Harrison,” one of the regicides, “hanged, drawn, and +quartered, which was done there, <i>he looking as cheerful as any man could +do in that condition</i>.” Note the grim humour of the words in italics. “He +was presently cut down, and his head and heart shown to the people, at +which there was great shouts of joy.” Again, on October 20th, in the same +year:—“This afternoon going through London and calling at Crowe’s, the +upholsterer’s, in St. Bartholomew’s, I saw the limbs of some of our new +traytors set upon Aldersgate, which was a sad sight to see; and a bloody +week this and the last have been, there being ten hanged, drawn, and +quartered.”</p> + +<p>It will be observed that the masculine gender is used in the foregoing +sentences for high treason; for, if the offender was a woman, the law with +a delicacy (!) one would hardly have expected, recognised that “the +decency due to the sex forbids the exposing and publicly mutilating their +bodies;” so a woman was simply to be drawn to the gallows, and there +burned alive. And these punishments for treason Sir Edward Coke attempted +to justify on Scriptural grounds, adding “it is punishment undoubtedly +just, for our liege lord the King is lord of every one of<span class="pagenum"><a name="Page_135" id="Page_135">[Pg 135]</a></span> our members, +and they have severally conspired against him, and should each one +suffer.” Evidently justice has not always spelt humanity.</p> + +<p>Another of the horrible punishments decreed by English law was that of +boiling to death, which in the reign of Henry VIII. was inflicted for +poisoning, and recalls the most cruel tortures of China and the Orient, +where slicing to death and impalement alive are or were common forms of +punishment. The awful fate of being boiled alive was specially devised for +the benefit of John Roose, a cook, who had been convicted of throwing +poison into a pot of broth intended for the family of the Bishop of +Rochester and for the poor of the Parish; in 1542, Margaret Davey suffered +the same lingering death at Smithfield. So fearful were our ancestors of +poison, that in Scotland, in 1601, Thomas Bellie, a burgess of Brechin, +and his son were banished for life by the High Court of Justiciary, for +the heinous offence of poisoning a couple of troublesome hens belonging to +a neighbour. Even the laws of Draco, said on account of their severity to +have been written not in ink but in blood, can scarcely compete with these +examples of British barbarity.</p> + +<p><span class="pagenum"><a name="Page_136" id="Page_136">[Pg 136]</a></span>Among the Romans strangulation, precipitation from a rocky height (a mode +of carrying out the death sentence still found amongst savage tribes), and +lashing to death were forms of punishment. Soldiers guilty of military +offences had to run the gauntlet. Upon a given signal all the soldiers of +the legion to which the offender belonged fell upon him with sticks and +stones, and generally killed him on the spot. If, however, he succeeded in +making his escape, he was thenceforth an exile from his native country. +Offending slaves were first scourged and then crucified. They were +compelled to carry the cross to the place of execution, and after being +suspended were left to perish by slow degrees. Crucifixion was abolished +throughout the Roman Empire by Constantine, out of reverence to the sacred +symbol. Other cruel punishments were burning alive, exposure to wild +animals, and condemnation to fight as gladiators in the arena for the +amusement of the citizens. The second of these modes of death, for death +was the invariable result, was the one usually meted out to the early +Christians—“If the Tiber overflows its banks; if there be a famine or +plague; if there be a cold, a dry, or a scorching season; if any<span class="pagenum"><a name="Page_137" id="Page_137">[Pg 137]</a></span> public +calamity overtakes us; the universal cry of the people is—“To the lion +with the Christians <i>Christiani ad leonem</i>!”</p> + +<p>Parricide was punished in a strange manner. The criminal, after being +scourged, was tied or sewed up in a leather bag, with a dog, a cock, a +viper, and an ape to keep him company, and so cast into the sea. The +Egyptians punished the same offence by sticking the prisoner all over with +pointed reeds, and then throwing him upon a fire of burning thorns, where +he lay till he was consumed.</p> + +<p>With most nations the <i>Lex talionis</i>, or punishment of retaliation—an eye +for an eye, a limb for a limb—has found a place in the penal system. It +was not, indeed, always carried out to its logical conclusion, but rather +became the subject of many subtle distinctions. Among the Athenians, Solon +decreed that whoever put out the eye of a one-eyed person should for so +doing lose both his own. But what, it was asked, should be done where a +one-eyed man happened to put out one of his neighbour’s eyes? Should he +lose his only eye by way of retaliation? If so, he would then be quite +blind, and would so suffer a greater injury than he had caused. The law of +the Jews<span class="pagenum"><a name="Page_138" id="Page_138">[Pg 138]</a></span> and Egyptians compelled anyone, who without lawful excuse was +found with a deadly poison in his possession, to himself swallow the +poison. An instance of a kind of <i>lex talionis</i> in our own country is +found in the reign of Edward I., when incendiaries were burnt to death. +Another example is that, from the reign of Henry VIII. to that of George +IV., to strike a blow and draw blood within the precincts of the King’s +palace, entailed on the offender the loss of his right hand. Here are some +of the regulations prescribed by the statute 33 Henry VIII., chapter 12, +for the infliction of the punishment:—</p> + +<div class="blockquot"><p>“viii. And for the further declaration of the solemn and due +circumstance of the execution appertaining and of long time used and +accustomed, to and for such malicious strikings, by reason whereof +blood is, hath been, or hereafter shall be shed against the King’s +peace. It is therefore enacted by the authority aforesaid, that the +Sergeant or Chief Surgeon for the time being, or his deputy of the +King’s household, his heirs and successors, shall be ready at the time +and place of execution, as shall be appointed as is aforesaid, to sear +the stump when the hand is stricken off.</p> + +<p>“ix. And the Sergeant of the Pantry shall be also then and there ready +to give bread to the party that shall have his hand so stricken off.</p> + +<p>“x. And the Sergeant of the Cellar shall also be then and there ready +with a pot of red wine to give the<span class="pagenum"><a name="Page_139" id="Page_139">[Pg 139]</a></span> same party drink after his hand is +so stricken off and the stump seared.</p> + +<p>“xi. And the Sergeant of the Ewry shall also be then and there ready +with cloths sufficient for the Surgeon to occupy about the same +execution.</p> + +<p>“xii. And the Yeoman of the Chandry shall also be then and there, and +have in readiness seared cloths sufficient for the Surgeon to occupy +about the same execution.</p> + +<p>“xiii. And the Master Cook shall be also then and there ready, and +shall bring with him a dressing-knife, and shall deliver the same +knife at the place of execution to the Sergeant of the Larder, who +shall be also then and there ready, and hold upright the +dressing-knife till execution be done.</p> + +<p>“xiv. And the Sergeant of the Poultry shall be also then and there +ready with a cock in his hand, ready for the Surgeon to wrap about the +same stump, when the hand shall be so stricken off.</p> + +<p>“xv. And the Yeoman of the Scullery to be also then and there ready, +and prepare and make at the place of execution a fire of coals, and +there to make ready searing-irons against the said Surgeon or his +deputy shall occupy the same.</p> + +<p>“xvi. And the Sergeant or Chief Ferror shall be also then and there +ready, and bring with him the searing-irons, and deliver the same to +the same Sergeant or Chief Surgeon or to his deputy when they be hot.</p> + +<p>“xvii. And the Groom of the Salcery shall be also then and there ready +with vinegar and cold water, and give attendance upon the said Surgeon +or his deputy until the same execution be done.</p> + +<p><span class="pagenum"><a name="Page_140" id="Page_140">[Pg 140]</a></span>“xviii. And the Sergeant of the Woodyard shall bring to the said place +of execution a block, with a betil, a staple, and cords to bind the +said hand upon the block while execution is in doing.”</p></div> + +<p>In addition to losing his hand, the unfortunate offender was imprisoned +for life. It was not until 1829 that this punishment was abolished, after +having been in existence for a period of 287 years.</p> + +<p>A curious mode of punishment, intended to make its victim the object of +popular ridicule, was in vogue in the ancient German Empire, where persons +who endeavoured to create tumults and to disturb the public tranquility +were condemned to carry a dog upon their shoulders from one large town to +another.</p> + +<p>The penal laws of France were every wit as inhuman as our own—burning +alive, breaking on the wheel, hanging, beheading, and quartering were +common forms of punishment. Awful atrocities were committed on living +victims, such as tearing off the flesh with red-hot pincers, pouring +molten lead and brimstone into the wounds, and cutting out the tongue. The +following is the sentence passed upon Ravaillac, the assassin of Henry +IV., in 1610:—He was first to be privily<span class="pagenum"><a name="Page_141" id="Page_141">[Pg 141]</a></span> tortured and then carried to +the place of execution. There the flesh was to be torn with red-hot +pincers from his breasts, his arms and thighs, and the calves of his legs; +his right hand, holding the knife wherewith he committed his crime, was to +be scorched and burned with flaming brimstone; on the places where the +flesh had been torn off a mixture of melted lead, boiling oil, scalding +pitch, wax, and brimstone was to be poured; after this he was to be torn +in pieces by four horses, and his limbs and body burned to ashes and +dispersed in the air. His goods and chattels were confiscated; the house +in which he was born was pulled down; his father and mother were banished, +and his other relatives commanded to change the name of Ravaillac for some +other. This sentence was not, surely, a vindication of outraged justice, +but rather a purile and barbarous legal revenge.</p> + +<p>To return to the laws of our own country. Mutilation of one sort or +another was long a favourite mode of punishment; pulling out the tongue +for slander, cutting off the nose for adultery, emasculation for +counterfeiting money, and so on. In Foxe’s “Book of Martyrs” there is an +account of a miracle which was worked on the person of a mutilated +criminal. A Bedfordshire man was <span class="pagenum"><a name="Page_142" id="Page_142">[Pg 142]</a></span>convicted of theft, and for his crime +his eyes were pulled out and other abominable mutilations were inflicted +on him. The sufferer repaired to the shrine of St. Thomas at Canterbury, +where after devout and steadfast prayer the parts he had lost were, so we +are told, miraculously restored. Anyone who fought with weapons in a +church had an ear cut off, or if he had already lost both his ears was +branded in the cheek with the letter F.</p> + +<p>By an Act passed in the reign of Queen Elizabeth, the punishment for +forgery was that the offender should stand in the pillory and have his +ears cut off by the common hangman, his nostrils slit up and seared, and +then suffer imprisonment for life. In 1731 Joseph Cook, aged 70 years, +underwent this punishment, the mutilation taking place while he stood in +the pillory at Charing Cross.</p> + +<p>The Coventry Act (22-23 Charles II., chapter 1.) was passed in consequence +of Sir John Coventry having been assaulted in the street and his nose +slit, out of revenge as was supposed. It enacted that if any person should +of malice, aforethought, and by lying in wait, cut out or disable the +tongue, put out an eye, slit the nose, or cut off or disable any limb or +member of any<span class="pagenum"><a name="Page_143" id="Page_143">[Pg 143]</a></span> other person, with intent to maim or to disfigure him, such +person, his councillors, aiders, and abettors, should be guilty of felony +without benefit of clergy, which implied the punishment of death. This Act +was not repealed until 1828, and resulted in at least one curious case. In +1772, one Coke and a labourer named Woodburn were indicted under the +Act—Coke for hiring and abetting Woodburn, and Woodburn for the actual +offence of slitting the nose of one Crispe, who was Coke’s brother-in-law. +The intention of the accused was to murder Crispe, and they left him for +dead, having terribly hacked and disfigured him with a hedge-bill, but he +recovered. An attempt to murder was not then a felony, but under the +Coventry Act to disfigure with an intent to disfigure was; and the accused +were indicted for the latter offence. Coke, in the course of his defence, +raised the point that the attack on Crispe was made with intent to murder +him and not with intent to disfigure, therefore, he contended, the offence +was not within the statute under which he was indicted. But the court held +that if a man attacked another intending to murder him, with such an +instrument as a hedge-bill, which could not but endanger a disfiguring of +the victim, and<span class="pagenum"><a name="Page_144" id="Page_144">[Pg 144]</a></span> in such attack happened not to kill but only to +disfigure, he might be indicted for disfiguring. The jury found the +prisoners guilty, and they were condemned and duly executed.</p> + +<p>The laws for the protection of trade decreed many cruel punishments. Thus, +in the reign of Elizabeth, an Act passed for the encouragement of the +woollen industry prescribed that the penalty for taking live sheep out of +the country should be forfeiture of goods, imprisonment for a year, and +that at the end of the year the left hand of the prisoner should be cut +off in a public market, and be there nailed up in the most public place. A +second offence was punishable with death. By statute 21 James I. chapter +19, anyone unfortunate enough to become a bankrupt was nailed by one ear +to the pillory for two hours, and then had the ear cut off. Under the +Romans a bankrupt was treated still more unmercifully, for at the option +of his creditors he was either cut to pieces or sold to foreigners beyond +the Tiber.</p> + +<p>A longstanding disgrace to the intelligence and humanity of our countrymen +was the fact that in former times burning alive was the inevitable fate of +poor wretches convicted of witchcraft, the penal laws against which were +not repeated until 1736.<span class="pagenum"><a name="Page_145" id="Page_145">[Pg 145]</a></span> So late as 1712, five so called witches were +hung at Northampton, and in 1716 Mrs. Hicks, and her daughter, aged nine, +were condemned to death at Huntingdon for selling their souls to the +devil. Even children of tender years were not spared, but with their +elders alike fell victims to our law’s barbarity; there are many recorded +instances of children under ten years of age being executed. In Scotland +the last execution for witchcraft took place in 1722.</p> + +<p>Space will not permit any attempt to run through the whole gamut of legal +iniquities; at most we can only attempt a very incomplete catalogue of the +inhumanities at one time or another incident to our penal codes, and with +a final horror we must bring this article to an end. The punishment with +which we are now about to deal, that of pressing to death, <i>peine forte et +dure</i> as it was called, is perhaps the most noteable example of the former +barbarity of our law, since it was inflicted before trial on innocent and +guilty alike, who refused to plead “Guilty” or “Not Guilty” to an +indictment for felony. What this punishment was, which was first +instituted in 1406, can best be told by giving the form of the judgment of +the court against the person who refused to<span class="pagenum"><a name="Page_146" id="Page_146">[Pg 146]</a></span> plead:—That the prisoner +shall be remanded to the place from whence he came, and put in some low, +dark room, and that he shall lie without any litter or other thing under +him, and without any manner of covering; that one arm shall be drawn to +one quarter of the room with a cord and the other to another, and that his +feet shall be used in the same manner; and that as many weights shall be +laid upon him as he can bear, and more; that he shall have three morsels +of barley bread a day, and that he shall have the water next the prison, +so that it be not current; and that he shall not eat the same day on which +he drinks, nor drink the same day on which he eats; and that he shall +continue so till he die or answer.</p> + +<p><i>Peine forte et dure</i> was not abolished till 1772, and was frequently +undergone by accused persons in order to preserve their estates from being +forfeited to the Crown, which would have been the case if they had stood +their trial and been found guilty. The year 1741 is probably the last date +on which the punishment was inflicted. In 1721, two men, Thomas Cross and +Thomas Spigot, were ordered to be pressed to death at the Old Bailey. +Cross gave in on seeing the preparations made for his torture, but Spigot +was made of<span class="pagenum"><a name="Page_147" id="Page_147">[Pg 147]</a></span> sterner stuff. In the “Annals of Newgate” is a description of +his sufferings:—“The chaplain found him lying in the vault upon the bare +ground with 350 pounds weight upon his breast, and then prayed by him, and +at several times asked him why he would hazard his soul by such obstinate +kind of self-murder. But all the answer that he made was—‘Pray for me, +pray for me!’ He sometimes lay silent under the pressure, as if insensible +to pain, and then again would fetch his breath very quick and short. +Several times he complained that they had laid a cruel weight upon his +face, though it was covered with nothing but a thin cloth, which was +afterwards removed and laid more light and hollow; yet he still complained +of the prodigious weight upon his face, which might be caused by the blood +being forced up thither, and pressing the veins as violently as if the +force had been externally upon his face. When he had remained for +half-an-hour under this load, and 50 pounds weight more laid on, being in +all 400 pounds, he told those who attended him he would plead. The weights +were at once taken off, the cords cut asunder; he was raised by two men, +some brandy was put into his mouth to revive him, and he was carried to +take<span class="pagenum"><a name="Page_148" id="Page_148">[Pg 148]</a></span> his trial.” In 1735, a man, who pretended to be dumb at the Sussex +Assizes, was sent to Horsham Gaol to be pressed to death unless he would +plead. He endured in agony a weight of 350 pounds, and then the +executioner, who weighed over 16 stones, laid himself upon the board upon +which the weights were placed, and killed the wretched man instantly.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_149" id="Page_149">[Pg 149]</a></span></p> +<h2>Trials of Animals.</h2> +<p class="center"><span class="smcap">By Thomas Frost.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">One</span> of the most singular features of the jurisprudence of the middle ages, +and one which was retained in the French code down to nearly the middle of +the last century, was the indictment of domestic animals for injuries +inflicted on mankind. The records of the criminal tribunals of France +disclose ninety-two such judicial processes between 1120 and 1741, when +the last of these grotesque trials took place in Poitou. The practice +seems to have been based on the Mosaic law, it being there ordered that, +“if an ox gore a man or a woman that they die, then the ox shall be +stoned, and his flesh shall not be eaten.” (Exodus, c. xxi., v. 28.) Oxen +and pigs were the animals that most frequently were the subjects of these +strange proceedings, the indictment against the former being for goring +persons, while the latter suffered for killing and sometimes devouring +very young children.</p> + +<p>The earliest instance of which any particulars<span class="pagenum"><a name="Page_150" id="Page_150">[Pg 150]</a></span> can be gathered occurred +in 1314, when, according to M. Carlier, who relates the story in his +history of the Duchy of Valois, a bull escaped from a farm-yard in the +village of Moisy, and gored a man so severely that death ensued. The Count +of Valois, being informed of the fatility, directed that the bull should +be captured, and formally prosecuted for causing the man’s death. This was +done, and evidence was given by persons who had seen the man attacked and +killed. The bull was thereupon sentenced to suffer death, which was +inflicted by strangulation, after which the carcase was suspended from a +tree by the hind legs. But the affair did not end thus, for the sentence +was appealed against, probably by the owner of the bull, on the ground +that the retainers of the Count of Valois had no legal authority to +execute the sentence. This plea was debated at great length, and the +provincial parliament eventually decided that, though the sentence was a +just one, the Count of Valois had no justiciary authority in the district +of Moisy.</p> + +<p>Next in the order of time comes the trial at Falaise of a sow which had +torn the face and arm of a child, from the effects of which injuries it +died. The sow was condemned to be mutilated<span class="pagenum"><a name="Page_151" id="Page_151">[Pg 151]</a></span> in the head and one fore leg, +and afterwards to be strangled, which sentence was executed in the public +square of the town. This was in 1386. Three years later, a horse was +condemned to death at Dijon for having killed a man. In 1403, Simon de +Baudemont, lieutenant of Meulan; Jean, lord of Maintenon; and the bailiff +of Mantes and Meulan, signed an attestation of the expenses incurred in +the prosecution and execution of a sow that had killed and partially eaten +a child. The following is a copy of the document, to which it may be added +that the story of the trial and execution may be found in the “Curiosités +Judiciaires et Historiques du Moyen Age” of M. Aguel:—“Item, for expenses +within the gaol, 6 sols. Item, to the executioner, who came from Paris to +Meulan to put the sentence in execution, by command of our Lord the +Bailiff and of the King’s Attorney, 54 sols. Item, for the carriage that +conveyed her to execution, 6 sols. Item, for ropes to tie and haul her up, +2 sols, 8 deniers. Item, for gloves, 12 deniers; amounting in the whole to +69 sols, 8 deniers.” In connection with the first item of this curious +document, it may be observed that, in a receipt delivered five years later +by a notary of Pont de l’Arche to the gaoler<span class="pagenum"><a name="Page_152" id="Page_152">[Pg 152]</a></span> of the prison of that town, +the same amount is allowed for the daily food of a pig, imprisoned on the +charge of killing a child, as for a man in the same prison. The last item, +the gloves, is supposed by M. Aguel to be a customary allowance to the +executioner.</p> + +<p>In 1457, a sow and her six young pigs were tried at Lavegny, on the charge +of having killed and partially eaten a child. The sow was convicted, and +condemned to death; but the little ones were acquitted on the ground of +their tender years or months, the bad example of their mother, and the +absence of direct evidence of their having partaken of the unnatural +feast. In 1494, sentence of death was pronounced on a pig by the Mayor of +Laon for having mutilated and destroyed an infant in its cradle, full +particulars of which case were given in the “Annuaire du Departement de +l’Aisne” for 1812. The act of condemnation, as there given, concludes as +follows:—“We, in detestation and horror of this crime, and in order to +make an example and satisfy justice, have declared, judged, sentenced, +pronounced, and appointed that the said hog, being detained a prisoner, +and confined in the said abbey, shall be, by the executioner, strangled +and hanged on a<span class="pagenum"><a name="Page_153" id="Page_153">[Pg 153]</a></span> gibbet, near and adjoining the gallows in the +jurisdiction of the said monks, being near their copyhold of Avin. In +witness of which we have sealed this present with our seal.” This document +was sealed with red wax, and endorsed:—“Sentence on a hog, executed by +justice, brought into the copyhold of Clermont, and strangled on a gibbet +at Avin.”</p> + +<p>Three years later, a sow was condemned to be beaten to death for having +mutilated the face of a child of the village of Charonne. The act of +condemnation in this case directed further that the flesh of the sow +should be given to the dogs of the village, and that the owner of the sow +and his wife should make a pilgrimage to the Church of Our Lady at +Pontoise, and bring on their return a certificate that this injunction had +been duly complied with. In 1499, a bull was strangled for having killed a +boy in the lordship of Cauroy, which belonged to the abbey of Beaufiré.</p> + +<p>Lionnois gives, in his history of Nancy, a full report of the proceedings +on the delivery of a condemned pig to the executioner of that city in +1572. He mentions, among other details, that the animal, secured by a +cord, was led to a cross near the cemetery; that from the most remote<span class="pagenum"><a name="Page_154" id="Page_154">[Pg 154]</a></span> +period the justice of the lord, the abbot of Moyen Moutier, was accustomed +to deliver to the provost, or marshal of St. Diez, near to this cross, all +condemned criminals, that execution might ensue; and that, the said pig +being a brute beast, the mayor and the justice held a conference at that +place, and left the said pig tied with a cord, without prejudice to the +judicial rights of the lord.</p> + +<p>Judicial proceedings against the lower animals were not confined to +France, for the list of such cases compiled by M. Berriat St. Prix, and +published in the “Memoires de la Societé des Antiquaires” for 1829, +mentions one tried at Lausanne in 1364, another at the same town in 1451, +a third at Basle in 1474, another at Lausanne in 1479, and a fifth at the +same place in 1554. Concerning the first of these Swiss trials, Ruchat +states, in his history of the Protestant reformation in Switzerland, that +the victim was a pig that had killed a child in the village of Chattens, +situated among the Jorat hills. It was cited to appear in the Bishop’s +Court at Lausanne, convicted of murder, and sentenced to death—the +executioner being a pork butcher.</p> + +<p>The Basle case was a very singular one. A farm-yard cock was tried on the +absurd charge of<span class="pagenum"><a name="Page_155" id="Page_155">[Pg 155]</a></span> having laid an egg. It was contended in support of the +prosecution that eggs laid by cocks were of inestimable value for use in +certain magical preparations; that a sorcerer would rather possess a +cock’s egg than the philosopher’s stone; and that Satan employed witches +to hatch such eggs, from which proceeded winged serpents most dangerous to +mankind. On behalf of the gallinaceous prisoner, the facts of the case +were admitted, but his advocate submitted that no evil animus had been +proved against his client, and that no injury to man or beast had +resulted. Besides, the laying of the egg was an involuntary act, and as +such not punishable by law. If it was intended to impute the crime of +sorcery to his client, he was entitled to an acquittal; for there was no +instance on record of Satan having made a compact with one of the brute +creation. In reply, the public prosecutor stated that, though the Evil One +did not make compacts with brutes, he sometimes entered into them; and +though the swine possessed by devils, as related by the Evangelists, were +involuntary agents, yet they, nevertheless, were punished by being caused +to run down a steep decline into the Lake of Galilee, where they were +drowned. The poor cock was convicted, and<span class="pagenum"><a name="Page_156" id="Page_156">[Pg 156]</a></span> condemned to death, not as a +cock, however, but as a sorcerer, or perhaps a devil, in the form of a +cock, on which finding it was, with the egg attributed to it, burned at a +stake, with all the form and solemnity of a judicial execution.</p> + +<p>As the lower animals were amenable to the law in Switzerland in those dark +ages, so, in certain circumstances, they could be put into the witness +box. If a house was broken into between sunset and sunrise, and the +occupier killed the intruder, the act was regarded as justifiable +homicide. But it was thought right to provide by law against the case of a +man, living alone, who might invite a person whom he wished to kill to +spend the evening with him, and having slain him, might assert that he +committed the act in self-defence, or to protect his property, the dead +man having been a burglar. Therefore, when a man was killed in such +circumstances, the occupier of the house was required to produce some +domestic animal that was an inmate of the house, and had witnessed the +tragedy, and to declare his innocence on oath in the presence of such +animal. If the brute witness did not contradict him, he was acquitted; the +law taking it for granted that God, rather than allow a murderer to go +unpunished,<span class="pagenum"><a name="Page_157" id="Page_157">[Pg 157]</a></span> would intervene by causing a miraculous manifestation by the +mouth of a dumb witness.</p> + +<p>Even more strange than the trials of oxen, pigs, etc., for offences +against mankind, were the legal proceedings often taken in the middle ages +against noxious insects and the smaller quadrupeds, such as rats. The +“Memoires de la Societé Royale Academique de Savoie” contain a very +curious account of the proceedings instituted in 1445 and 1487 against +certain beetles that had committed great ravages in the vineyards of St. +Julien. Advocates were named on behalf of the vine-growers and the beetles +respectively; but, by a singular coincidence, the insects disappeared when +cited to answer for the mischief they had done, and the proceedings were +in consequence abandoned. That was in 1445. In 1487, however, they +re-appeared, and a complaint was thereupon addressed to the vicar-general +of the Bishop of Maurienne, who named a judge, and also an advocate to +represent the beetles. Counsel having been heard on both sides, the judge +suggested that the vine-growers should cede to the defendants certain +land, where they could live without encroaching on the vineyards. The +plaintiffs agreed to this compromise, with the<span class="pagenum"><a name="Page_158" id="Page_158">[Pg 158]</a></span> proviso that, in default +of the defendants accepting the terms offered them, the judge would order +that the vineyards should be respected by the beetles under certain +penalties. The advocate for the beetles demanded time for consideration, +and on the resumption of the proceedings stated that he could not accept, +on behalf of his clients, the suggestion of the court, as the land +proposed to be given up to them was barren, and afforded nothing upon +which they could subsist. The court then appointed assessors to survey the +land in question, and on their report that it was well wooded and provided +with herbage, the conveyance was ordered to be engrossed in due form and +executed. The matter was then regarded by the plaintiffs as settled; but +the beetles discovered, or their advocate discovered for them, that a +quarry of an ochreous earth, used as a pigment, had formerly been worked +on the land conveyed to the insects, and though it had long since been +worked out, some person possessed an ancient right of way to it, the +exercise of which would be extremely prejudicial to them. Consequently, +the agreement was held to be vitiated, and the legal proceedings had to be +recommenced <i>de novo</i>. How they eventually terminated cannot be told,<span class="pagenum"><a name="Page_159" id="Page_159">[Pg 159]</a></span> +owing to the mutilation of the documents relating to the proceedings +subsequent to 1487.</p> + +<p>Nearly a century later, legal proceedings were commenced by the +inhabitants of a village in the diocese of Autun against the rats by which +their houses and barns were infested; the trial being famous in the annals +of French jurisprudence as that in which Chassanee, the celebrated +jurisconsult, first achieved distinction. The rats not appearing on the +first citation, Chassanee, who was retained for the defence, argued that +the summons was of too local a character, and that, as all the rats in the +diocese of Autun were interested in the case, they should be summoned +throughout the diocese. This plea being admitted, the curé of every parish +in the diocese was instructed to summon all the rats within its limits to +attend on a day named in the summons. The day having arrived, and the rats +failing to appear, Chassanee said that, as all his clients were summoned, +including old and young, sick and healthy, great preparations had to be +made, and certain necessary arrangements effected, and he had to ask, +therefore, for an extension of time. This also being granted, another day +was appointed, but again not a single rat put in an appearance.<span class="pagenum"><a name="Page_160" id="Page_160">[Pg 160]</a></span> Chassanee +then made an objection to the legality of the summons. A summons from that +court, he said, implied full protection to the parties summoned, both on +their way to it and on their return to their homes; and his clients, the +rats, though most anxious to appear in obedience to the court, did not +dare to leave their homes to come to Autun, on account of the number of +evil-disposed cats kept by the plaintiffs. If the latter would enter into +bonds, under heavy pecuniary penalties, that their cats should not molest +his clients, the summons would be immediately obeyed. The court +acknowledged the validity of this plea, but the plaintiffs declined to be +bound for the good behaviour of their cats. The further hearing of the +case was, therefore, adjourned <i>sine die</i>, and thus Chassanee gained his +cause. Full particulars of the proceedings are given in a Latin work, +written by him, and published in 1588.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_161" id="Page_161">[Pg 161]</a></span></p> +<h2>Devices of the Sixteenth Century Debtors.</h2> +<p class="center"><span class="smcap">By James C. Macdonald, f.s.a., Scot.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">In</span> the year 1531, a certain John Scott, residenter in the good town of +Edinburgh, was financially in a condition of chronic decrepitude. His +household goods were rapidly going to the hammer, and one creditor, bolder +than his fellows, decided to attack the impecunious personality of the +common debtor. Writs from court and messengers of the law were severally +set in motion; and on the earliest possible day one of those myrmidons +served upon the debtor personally, a writ bearing the terrible title of +“Letters of IV Forms.” The “coinless” John was therein warned that if he +failed forthwith to pay or satisfy the lawful debt, for which decreet has +gone out, he would (unless he went to prison in a peaceful way) be +declared a rebel against the King’s Majesty.</p> + +<p>Now John reasoned with himself that payment he could not make; outlawry he +rather feared;<span class="pagenum"><a name="Page_162" id="Page_162">[Pg 162]</a></span> and <i>squalor carceris</i> he could not endure. What was to be +done? He had heard of the horns of the Hebrew altars: how that personal +safety resulted from any manual attachment thereto. Was there some such +boon in bonny Scotland? There was Holyrood, with its sanctified abbey. It +was near; any port in such a storm. Down the Canongate, and straight to +the sanctuary he ran—all to the manifest loss, injury, and damage of his +creditors who followed, having got wind of this unique <i>hegira</i> from the +red-nosed city guard. In vain the creditors pleaded; equally in vain were +their threats. The canny Scot was warranted safe and skaithless against +“all mortal.”</p> + +<p>Annoyed at his debtor’s immunity from arrest, chagrined that any money +John possessed had now been further dissipated in the Abbey admission dues +to its protection giving portals—each creditor turned sadly to his “buiks +of Compts” and superscribed over against John Scott’s name the expressive +legend “bad debt.” And this John Scott became the forerunner, <i>de facto</i>, +of a long line of “distressed” persons. Nay more, he secured an +immortality as lasting as that of the sovereign whose solemnly sounding<span class="pagenum"><a name="Page_163" id="Page_163">[Pg 163]</a></span> +“Letters of IV Forms,” he spurned and left unanswered.</p> + +<p>A generation later, and another <i>new</i> way of paying old debts is placed on +record. To balance international honours it is of Anglican origin. +Scoggan, the jester of the Elizabethan court, falls into financial +distress. He borrows £500 from the Queen—<i>mirabile dictu</i>. Only a fool +would have tried such a thing. It was put down as a “short loan,” but it +soon became clear to the royal lender that its longevity would outlast her +reign. To all demands the clownish borrower smilingly cried “long live the +queen,” until at last his existence as court fool was in danger of being +ended. But he would rather die than be evicted; and die he did. He became, +theatrically speaking, defunct.</p> + +<p>The <i>late</i> Scoggan was accordingly borne, to solemn music, past the royal +garden; and the queen, seeing the mournful show—and knowing nought of its +hollowness—asked whose it was. “Scoggan, Your Majesty,” was the reply. +“Poor fellow,” she exclaimed, “the £500 he owed me I now freely forgive.” +Whereupon the “defunct” sat up and declared that the royal generosity had +given him a new lease of life.<span class="pagenum"><a name="Page_164" id="Page_164">[Pg 164]</a></span> “Thou rogue,” said the queen, “thou art +more rogue than fool. Thou hast improved upon the plan of that John Scott, +who, in the reign of my late cousin of Scotland, as Sir James Melvil tells +me, got rid of the oldest debt and the longest loan.”</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_165" id="Page_165">[Pg 165]</a></span></p> +<h2>Laws Relating to the Gipsies.</h2> +<p class="center"><span class="smcap">By William E. A. Axon, f.r.s.l.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">Early</span> in the fifteenth century the gipsies made their appearance in +Europe, and as strangers were not favourably regarded in those days the +advent of these dark-skinned people, speaking a language of their own, +dressing in a picturesque, but uncommon costume, and having their own +rulers, and their own code of morals, and owning no allegiance to the laws +of the land in which they sojourned, naturally attracted attention. At +first some credence was given to their high-sounding pretensions, and the +dukes, counts, and lords of Lesser Egypt received safe conducts and +protection under the idea that they were engaged in religious pilgrimages. +But the seal of the Emperor Sigismund would not protect them when the term +of their pretended pilgrimage had expired, nor would the manners and +customs of the gipsies substantiate any special claim to sanctity or +religious fervour. Even the ages when the divorce was most marked between<span class="pagenum"><a name="Page_166" id="Page_166">[Pg 166]</a></span> +religion and morals would be staggered by the thefts, and worse outrages +that were laid to their charge. Sigismund’s safe conducts are said to have +been given not as Emperor, but as King of Hungary, and some of the gipsies +were early employed as ironworkers in the realm of St. Stephen. In 1496 +King Ladislaus gave a charter of protection to Thomas Polgar and his +twenty five tents of gipsies because they had made musket bullets and +other military stores for Bishop Sigismund at Fünfkirchen, but whatever +consideration may have been shewn to them in the beginning, they speedily +became objects of suspicion and dislike. There is not a country in Europe +which has not legislated against them or endeavoured to exile them by +administrative acts. Their expulsion from Spain was decreed in 1492, from +France in 1562, and from various Italian states about the same time. +Denmark, Sweden, and the Netherlands have also pronounced against them. +The Diet of Augsburg in 1500, ordered their expulsion from Germany on the +ground that they were spies of Turkey seeking to betray the Christians. +This edict, though several times repeated, was non-effective.</p> + +<p>In Hungary and Transylvania the authorities,<span class="pagenum"><a name="Page_167" id="Page_167">[Pg 167]</a></span> hopeless of getting rid of +the troublesome immigrants, took strong measures to bring them into line +with the rest of the population. They were prohibited from using the +Romany tongue, from retaining their gipsy surnames, from wandering about +the country, from eating carrion, and from dealing in horses. Those fit +for military service were to be taken into the army, and the rest were to +live and dress and deport themselves in the same manner as the peasantry +of the country. These regulations were not wholly effective, but the +result of the efforts put forward by Maria Theresa, and her successors may +be seen in the sedentary gipsies of the Austro-Hungarian Empire. At times +they have been subjected to fierce persecution. In 1782, a dreadful +accusation was brought against the Hungarian Romanis, when more than a +hundred of them were accused of murder and cannibalism. The gang were said +to have lived by highway robbery and murder, and to have cooked and eaten +the bodies of their victims. At Frauenmark four women were beheaded, six +men were hanged, two were broken on the wheel, and one was quartered +alive. Altogether forty-five were executed and many more were imprisoned.<span class="pagenum"><a name="Page_168" id="Page_168">[Pg 168]</a></span> +How much of this was suspicion substantiated by torture?</p> + +<p>The gipsies came frequently in contact with the myrmidons of the law. “As +soon as the officer seizes or forces away the culprit,” says Grellmann, +“he is surrounded by a swarm of his comrades who take unspeakable pains to +procure the release of the prisoner.... When it comes to the infliction of +punishment, and the malefactor receives a good number of lashes well laid +on, in the public market place, a universal lamentation commences among +the vile crew; each stretches his throat to cry over the agony his dear +associate is constrained to suffer. This is oftener the fate of the women +than of the men; for as the maintenance of the family depends most upon +them, they more frequently go out for plunder.” It is a noteworthy fact +that Grellmann writing in 1783, has not a word of condemnation of the +barbarous practice of flogging women.</p> + +<p>In England as elsewhere the earliest of these romantic people were +welcomed. In 1519, the Earl of Surrey entertained “Gypsions” at Tendring +Hall, Suffolk, and gave them a safe-conduct. Still earlier in 1505, +Anthony Gaginus, Earl of Little Egypt, had a letter of recommendation<span class="pagenum"><a name="Page_169" id="Page_169">[Pg 169]</a></span> +from James IV. of Scotland to the King of Denmark. James V. bestowed a +charter upon James Faa, Lord and Earl of Little Egypt, by which he was +privileged to execute justice upon his followers, much in the same way as +the great barons were authorised to deal with their vassals. But they soon +fell out of favour. In England, in the twenty-second year of Henry VIII. +an act of parliament was passed which sets forth that there are certain +outlandish people, who not profess any craft, or trade, whereby to +maintain themselves, but go about in great numbers from place to place, +using craft and subtlety to impose on people, making them believe that +they understood the art of foretelling to men and women their good or ill +fortune, by palmistry, whereby they frequently defraud people of their +money, likewise are guilty of thefts and highway robberies; it is ordered +that the said vagrants, commonly called Egyptians, in case they remain +sixteen days in the kingdom, shall forfeit their goods and chattels to the +king and be further liable to imprisonment. In 1537, Cromwell writes to +the Lord President of the Marches of Wales, that the “Gipcyans” had +promised to leave the kingdom in return for a<span class="pagenum"><a name="Page_170" id="Page_170">[Pg 170]</a></span> general pardon for their +previous offences, and exhorts the authorities to see that their +deportation is effected. Many were sent to Norway, but the effort to +extirpate them from the kingdom entirely failed.<a name='fna_10' id='fna_10' href='#f_10'><small>[10]</small></a> By an act of 1554, a +penalty of £40 was to be inflicted upon any one knowingly importing them. +Those gipsies, following “their old accustomed devlishe and noughty +practises,” were to be treated as felons, but exception was made in favour +of such as placed themselves in the service of some “honest and able +inhabitant.” Many were executed, but the remnant survived and managed to +hold a yearly meeting at the Peak Cavern or Kelbrook, near Blackheath. +Still sterner was the law passed in 1562-3, which made it felony for any +one born within the kingdom to join the fellowship of vagabonds calling +themselves Egyptians. The previous acts had referred to the gipsies as an +outlandish people, but now the native born were brought equally within the +meshes of this sanguinary law. “Throughout the reign of Elizabeth,” as +Borrow remarks, “there was a<span class="pagenum"><a name="Page_171" id="Page_171">[Pg 171]</a></span> terrible persecution of the gipsy race; far +less, however, on account of the crimes which were actually committed, +than from a suspicion which was entertained that they harboured amidst +their companies priests and emissaries of Rome.” The harrying of the +missionary priests was in part dictated by the spirit of religious +persecution, but in a still greater degree by the conviction that they +were political emissaries, aiming at the subversion of the kingdom. The +priests on the English mission had often to disguise themselves, and at +times may have assumed the garb of wandering beggars, but they are not +likely to have consorted with the Romans, whose language would be strange +to them, and whose heathenish indifference to all dogmas, rites, and +ceremonies, would be specially distasteful to zealous Catholics.</p> + +<p>After “the spacious times” of great Elizabeth, the gipsies had a rest from +special oppression, though they were of course still in jeopardy from the +harsh laws as to vagrancy and those minor crimes, that are their +characteristic failings. Romany girls were flogged for filching and +fortune-telling, and Romany men were hanged for horse-stealing. They were +looked upon with suspicion, and it was easy enough to raise<span class="pagenum"><a name="Page_172" id="Page_172">[Pg 172]</a></span> prejudice +against them. This was shewn in the notorious case of Elizabeth Canning. +She was a girl of eighteen, employed as a domestic servant at +Aldermanbury, and in 1753, disappeared for four weeks. On her return she +asserted that she had been abducted and detained in a loft by gipsies, who +gave her only bread and water to eat. Their aim she declared was to induce +her to adopt an immoral life. Mrs. Wells, Mary Squires, George Squires, +Virtue Hall, Fortune and Judith Natus, were arrested, and Wells and +Squires were committed for trial. The proceedings, partly before Henry +Fielding the novelist, were conducted with a laxity that seems now to be +almost inconceivable. At the Old Bailey trial there was a remarkable +conflict of evidence, but in the end Mrs. Wells was condemned to be burned +in the hand, and Mary Squires to be hanged. Sir Christopher Gascoyne then +Lord Mayor, was satisfied that there had been a miscarriage of justice and +made enquiries, a respite was obtained and finally the law officers of the +crown recommended the grant of a free pardon to Squires. The natural +sequel was the prosecution of Canning for perjury. Fortune and Judith +Natus now swore that they had slept<span class="pagenum"><a name="Page_173" id="Page_173">[Pg 173]</a></span> each night in the loft where Canning +declared she had been imprisoned, but it was very natural that people +should ask why they had not given this important evidence at the previous +trial. Mary Squires’ alibi was sworn to by thirty-eight witnesses who had +seen her in Dorsetshire, and was, to some extent, invalidated by +twenty-seven who swore that she was in Middlesex at the time. As she was +too remarkable for her ugliness to be easily mistaken, there must have +been some very “hard swearing.” Canning was convicted of perjury and +transported, but the secret of her absence from New Year’s Day, 1553, +until the 29th of January was never divulged. The case excited great +interest, and the controversy divided the whole of the busy, idle “town,” +into “Canningites” and “Gipsyites.”</p> + +<p>The Tudor law (22 Henry VIII., c. 10) was repealed as “of excessive +severity” in 1783 (23 George III., c. 51). The later legislation provides +that persons wandering in the habit and form of Egyptians, and pretending +to palmistry and fortune-telling, are to be deemed rogues and vagabonds +(17 Geo. II., c. 5., 3 Geo. IV., c. xl.), and is liable to three months’ +imprisonment (5 Geo. IV., c. lxxxiii.), and encamping on a turnpike<span class="pagenum"><a name="Page_174" id="Page_174">[Pg 174]</a></span> road +involved a penalty of forty shillings (3 Geo. IV., c. cxxvi., 5 and 6 +William IV., c. 50). Some of the older enactments remained on the statute +book, though not enforced, until the passing of the statute law Revision +Act of 1863, by which many obsolete parliamentary enactments were swept +away.</p> + +<p>By the famous Poynings Act, English laws were declared applicable to +Ireland. The gipsies were never common in the Isle of Saints, but by a +special act they were, in 1634, declared to be rogues and vagabonds (10 +and 11 Car. I., c. 4).</p> + +<p>There are acts of the Scottish Parliament as early as 1449, directed +against “sorners, overliers, and masterful beggars with horse, hounds, or +other goods,” and that this would well describe the earlier gangs of +gipsies is undeniable, but whether they were Romanis or Scots is a matter +of controversy not easily decided in the absence of more definite +evidence. A tradition of the Maclellans of Bombie says that the crest of +the family was assumed on the slaying of the chief of a band of saracens +or gipsies from Ireland. The conqueror received the barony of Bombie from +the king as a reward. Having thus restored the fortunes of the family, the +young laird of Bombie<span class="pagenum"><a name="Page_175" id="Page_175">[Pg 175]</a></span> took for his crest a moor’s head with the motto +“Think on.” If this legend was evidence, which it is not, there were gipsy +marauders in Galloway in the middle of the fifteenth century. But in 1505, +we have the entry of a gift by the King of Scotland of seven pounds to the +“Egiptianis.” In the same year there is a letter already named, in which +“Anthonius Gagino,” or Gawino, is recommended to the King of Denmark. In +1527, Eken Jacks, master of a band of gipsies, was made answerable for a +robbery from a house at Aberdeen. In 1539, a similar charge was brought, +but not proved, against certain friends and servants to “Earl George, +callet of Egipt.” This chieftain was one of the celebrated Faa tribe. In +1540, George and John Faa were ordered by the bailies of Aberdeen to +remove their company and goods from the town. This is the first action of +a Scottish authority against the gipsies as gipsies. But, by a charter +dated four days before the municipal decree, James V. confirms to “our +lovit Johnne Faw, lord and erle of Little Egipt,” full power to execute +justice over his tribe, some of whom had rebelled and forsaken his +jurisdiction. In 1541, an act of the Lords of Council and Session decreed +the banishment of<span class="pagenum"><a name="Page_176" id="Page_176">[Pg 176]</a></span> the gipsies from the realm within thirty days, because +of “the gret theftes and scathis” done by them. Some of them passed over +the border, but not for long, and in 1553 the Faas again had a charter +upholding their rights of lordship against Lalow and other rebels of their +company. And in the next year their is a pardon to four Faas for the +“slachter of umquhile Ninian Smaill.”</p> + +<p>The gipsies had the favour of the Roslyn family, and it is said that Sir +William Sinclair rescued “ane Egiptian” from the gibbet in the Burgh Muir, +“ready to be strangled,” and that in gratitude the tribe used to go to +Roslyn yearly and act several plays in May and June. In 1573, and again in +1576, the gipsies were ordered to leave the realm, but the decree was +never put in force. When Lady Foulis was tried in 1590, one charge was +that she had sent a servant to the gipsies for advice as to poison to be +administered to “the young laird of Fowles and the young Lady Balnagoune.” +When James VI. held a High Court of Justicary at Holyrood in 1587, for the +reformation of enormities, the offenders to be dealt with included “the +wicked and counterfeit thieves and limmers calling themselves Egyptians.”</p> + +<p>There were several enactments of the Scottish<span class="pagenum"><a name="Page_177" id="Page_177">[Pg 177]</a></span> Parliament in 1574, 1579, +1592, and 1597. These were all aimed at the nomadic habits of the race, +but the settled gipsies were left unmolested. “Strong beggars and their +children” were to be employed in common work for their whole life, and it +is said that salt masters and coal masters thus made serfs of many. In +1603, there was a special “Act anent the Egiptians,” which declared it +“lesome” for anyone to put to death any gipsy, man, woman, or child, +remaining in the country after a certain date. Moses Faa appealed against +it as a loyal subject, and found a security in David, Earl of Crawford. +This was in 1609, but in 1611 four of the Faas were tried at Edinburgh +under the acts against the gipsies, and were convicted and executed on the +same day. Constables and justices of the peace were exhorted to put the +law in force. Four gipsies, who could not find securities that they would +leave the kingdom, were sentenced to be hanged in 1616, but were reprieved +and probably released. In 1624, eight were executed on the Burgh Muir, but +the women and children were simply exiled. In 1636, a number were +condemned at Haddington, the men to be hanged and <i>the women to be +drowned</i>. Women who had children were to be<span class="pagenum"><a name="Page_178" id="Page_178">[Pg 178]</a></span> scourged and branded in the +face. In the latter half of the seventeenth century many were sent to the +plantations in Virginia, Barbadoes, and Jamaica.</p> + +<p>Generally, however, the stringent laws were not stringently administered, +and from fear or influence of some kind the gipsies often escaped.</p> + +<p>The British gipsies in our own day find that whilst the law is dealt out +to them with perfect impartiality, the social pressure is decidedly +against them. At such watering-places as Brighton and Blackpool—to name +two extremes—they tell fortunes as though there were no statutes in that +case made and provided. But it is not easy for them to keep on the road. +The time cannot be far off when they must live with the <i>gaújos</i><a name='fna_11' id='fna_11' href='#f_11'><small>[11]</small></a> as +house-dweller or perish from the land.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_179" id="Page_179">[Pg 179]</a></span></p> +<h2>Commonwealth Law and Lawyers.</h2> +<p class="center"><span class="smcap">Edward Peacock, f.s.a.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">The</span> great Civil War as it is called, that is the struggle between Charles +the First and his parliament, is memorable in many respects. No student of +modern history can dispense with some knowledge of it, and the more the +better, for it was the result of many things which had happened in the far +distant past, and we may safely say that the great French Revolution, +which produced some good, and such an incalculable amount of evil would +have run a far different course to that which it did, had not the +political ideals of the men who took part in that terrible conflict been +deeply influenced by what had taken place in England a century and a half +before.</p> + +<p>As to the civil wars which had occurred in England in previous days, +little need be said. They were either dynastic—the struggle of one man or +one family against another—or they were religious revolts against the +Tudors, by those<span class="pagenum"><a name="Page_180" id="Page_180">[Pg 180]</a></span> who vainly endeavoured to re-establish the old order of +things in opposition to the will of the reigning monarch and the political +servants who supported the throne. The struggle between Charles and the +Long Parliament was far different from this. That religion in some degree +entered into the conflict which was raging in men’s mind long ere the +storm burst it would be childish to deny, but it was not so much, except +in the case of a very few fanatics, a conflict between different forms of +faith as because a great number of the English gentry, and almost the +whole of the mercantile class, which had then become a great power, felt +that they had the best reasons for believing that it was the deliberate +intention of the King and the desperate persons who advised him, to levy +taxes without the consent of parliament. This may occasionally have been +done in former reigns, but it is the opinion of most of those who have +studied the subject in latter days, so far as we can see, without +prejudice, that in every case it was illegal. Whether this be so or not, +it must be remembered that times were in the days of Charles the First, +far different from what his predecessors the Plantagenets and Tudors had +known. A<span class="pagenum"><a name="Page_181" id="Page_181">[Pg 181]</a></span> great middle class had arisen partly by the division of property +consequent on the dispersion of the monastic lands, and partly also by the +break up of the vast feudal estates, some of which had fallen into the +hands of the Crown by confiscation, others been sold by their owners to +pay for their own personal extravagence.</p> + +<p>Though murmurs had existed for many years, it was not until the memorable +ship-money tax was proposed that affairs became really grave. Had England +been threatened by an invasion such as the Spanish Armada, there can be no +doubt that a mere illegality in the mode of levying taxes to meet the +emergency would have been regarded as of little account, but in the +present case there was no overwhelming need, and it must be borne in mind +that to add to the national irritation the two first Stuarts were almost +uniformally unsuccessful in their foreign wars. It is to Attorney General +Noy that we owe the arbitrary ship-money tax. He was a dull, dry, legal +antiquary of considerable ability, whose works, such as his <i>Treatise +concerning Tenures and Estates</i>; <i>The Compleat Lawyer</i>; <i>The Rights of the +Crown</i>, and others of a like character, are yet worth poring over by +studious<span class="pagenum"><a name="Page_182" id="Page_182">[Pg 182]</a></span> persons. Such a man was well fitted for historical research, no +one of his time could have edited and annotated <i>The Year Books</i> more +efficiently, but he had no conception of the times in which he lived, the +narrow legal lore which filled his mind produced sheer muddle-headedness, +when called upon to confront an arbitrary king face to face with an +indignant people. That there was less to be said against this form of +royal taxation than any other that legal ingenuity could light upon must +be admitted, but as events shewed the course he advised the king to take, +was little short of madness. John Hampden, who represented one of the +oldest and most highly respected races of the English gentry—nobles as +they would be called in any land but our own—set the example of refusing +to pay this unjust levy. The trial lasted upwards of three weeks, and the +men accounted most learned in the law were employed in the case. Sir John +Bankes, the owner of Corfe Castle, Sir Edward Littleton, and others were +for the King. Oliver Saint John and Mr. Holborn were for Hampden. +Concerning Holborn little seems to be known, but Saint John made for +himself a great name. His speeches are marvellously learned, shewing an<span class="pagenum"><a name="Page_183" id="Page_183">[Pg 183]</a></span> +amount of reading which is simply wonderful when we call to mind that in +those days all our national records were unprinted, and almost all of them +without calendar or index of any sort. It must, however, be remembered +that in those days lawyers of both branches of the profession were well +acquainted not only with the language in which our records were written, +but also with the hands employed at various periods, and the elaborate +system of contraction used in representing the words.</p> + +<p>A full report of this memorable trial is to be found in Rushworth’s +<i>Historical Collections</i>, volume ii. parts 1 and 2. Carlyle in his +<i>Letters and Speeches of Oliver Cromwell</i>, in the emphatic diction he was +accustomed to use says that Saint John was “a dark, tough man of the +toughness of leather,”<a name='fna_12' id='fna_12' href='#f_12'><small>[12]</small></a> but he does not dwell on his great learning and +general ability, as he ought to have done. That Saint John’s heart was in +his work for his client we are well assured. That from a legal point of +view, Hampden was his only client, we well know, but as a matter of fact, +it is no exaggeration to say that he represented the people of England. +The decision went in favour<span class="pagenum"><a name="Page_184" id="Page_184">[Pg 184]</a></span> of the crown, which was from the first a +foregone conclusion. It was a legal victory, but like many lesser +victories won before and since success was the sure road to ruin. The sum +contended for was absurdly small—twenty shillings only—but on that pound +piece hung all our liberties; whether we were to continue a free people or +whether we were to have our liberties filched away from us, as had already +been the case in France and Spain. A sullen discontent brooded over the +land, there was no rioting, but in hall and castle, country parsonage and +bar-parlour, grave men were shaking their heads and asking what was to +come next, all knew that a storm was brewing, the only question was when +and where it would burst. Events changed rapidly, and Saint John though he +took no very prominent part in the party struggles ere the war broke out, +was undoubtedly the chief legal adviser of those who were in opposition to +the faction which desired to make England a despotic monarchy. Such was +the case during the war which ended in the tragic death of the king, and +the establishment of a Republican form of government under the name of the +Commonwealth. Saint John once again appears in a public<span class="pagenum"><a name="Page_185" id="Page_185">[Pg 185]</a></span> manner which +indicates that he was a brave man who had no more fear of the pistol and +dagger of the assassin, than he had of the corrupt dealings of those who +for a time, to their own imminent peril had misgoverned our country. This +time we find him sent by the Commonwealth as ambassador to the seven +United Provinces, then as now commonly called Holland, on account of the +two provinces of north and south Holland, being by far the most +influential states in that republic. The Dutch though republicans +themselves, had during the latter part of our Civil War shewn sympathy +with the cause of the Royalists. After the execution of the king, this +feeling became naturally much intensified. On the other hand our newly +established republic was for many reasons both of politics and religion +very desirous of being on good terms with a sister commonwealth so very +near at hand. To explain matters and perhaps to settle the heads of a +definite treaty, the English government sent Isaac Doreslaus, or Doorslaer +as their ambassador. He was by birth a Dutchman and a very learned lawyer. +He had come to this country before, the war broke out in 1642. He was then +made, probably through the influence of<span class="pagenum"><a name="Page_186" id="Page_186">[Pg 186]</a></span> his friend Sir Henry Mildmay, +“Advocate of the Army.”<a name='fna_13' id='fna_13' href='#f_13'><small>[13]</small></a> His great knowledge of Civil Law, which had +been much neglected in England in times subsequent to the Reformation, +rendered him of great service in his new position of Judge Advocate of the +Army. For the same reason he soon afterwards was created one of the judges +of the Admiralty Court. He became especially hateful to the Royalists from +his having assisted in preparing the charges against Charles the First. In +May, 1649, he sailed for Holland as Envoy of the English government to the +Hague. He had only spent a short time there, when, while at supper in the +Witte Zwaan (White Swan) Inn, some five or six ruffians with their faces +hidden by masks, rushed into the room where he, in company with eleven +other guests were sitting. Two of these wretches made a murderous attack +on a Dutch gentleman of the company, mistaking him for Dorislaus. Finding +out their error they set upon the Envoy and slew him with many wounds, +crying out as they did so, “Thus dies one of the King’s judges.” The +leader of this execrable gang was Col. Walter<span class="pagenum"><a name="Page_187" id="Page_187">[Pg 187]</a></span> Whitford, son of Walter +Whitford, D.D. The murderer received a pension for this “generous +action”<a name='fna_14' id='fna_14' href='#f_14'><small>[14]</small></a> after the Restoration.</p> + +<p>The English Parliament gave their faithful servant a magnificent funeral +in Westminster Abbey, June 14, 1649, but when Charles the Second ascended +the throne, his body was disturbed. His dust rests along with that of +Admiral Blake and other patriots in a pit somewhere in Saint Margaret’s +churchyard.<a name='fna_15' id='fna_15' href='#f_15'><small>[15]</small></a> Dorislaus, though a foreigner, ought to rank among our +great English lawyers, for his services were devoted entirely to his +adopted country. Whatever our opinions may be as to those differences +which were the forerunners of so much bloodshed and crime, we must bear in +mind that many of the foremost men on both sides were actuated by the +highest principles of honour. The study of Canon Law had been prohibited +in the preceding century, and the Civil Law with which it has so intimate +a connection, though not made contraband, was so much discouraged that it +is no exaggeration to say that the knowledge of it was confined to a very +few. Selden, whose<span class="pagenum"><a name="Page_188" id="Page_188">[Pg 188]</a></span> wide grasp of mind took in almost every branch of +learning as it was known in his day, is the only English lawyer we can +think of who had mastered these two vast subjects. This is the more +remarkable as he was of humble parentage; the son of a wandering minstrel +it is said, but from the first his passion for learning overmastered all +difficulties. It must, however, be borne in mind that according to the +custom of those times when his abilities became known, he met with more +than one generous patron.</p> + +<p>We must for a moment return to Saint John who was selected in 1652, to +represent his country in Holland. There was not, as there is now a trained +body of men devoted to the diplomatic service. The reasons why Saint John +was chosen for this important office are not clear. He was a great and +widely read lawyer, who we apprehend was trusted with this difficult +mission, not only because the government were assured of his probity, but +because the relations between Holland and this country depended on many +subtile antiquarian details which a mere student of the laws as they were +then, would have been unable to unravel. The basis of the sea codes by +which the various nations of christendom <span class="pagenum"><a name="Page_189" id="Page_189">[Pg 189]</a></span>professed to be ruled, was the +Laws of Oleron (Leges Uliarences). They were promulgated by Richard the +First of England, on an island in the Bay of Acquitaine. How far they were +ever suited for their purpose may be questioned, but it is certain that as +centuries rolled on, they had though often quoted, ceased to have any +restraining power, and as a consequence Spain, England, Holland, and other +powers were guilty of constant acts of what we should now call piracy. A +lasting treaty with Holland, could Saint John achieve it, would have been +of immense advantage, but the Dutch were in no mood for an alliance on +equal terms. It was a brave thing for Saint John to undertake so arduous a +mission, for he not only run the risk of ignominous failure, but also was +in no little danger from the savage desperadoes who thought they did the +cause of their exiled master service by murdering the agents of the +English government. When Saint John arrived at the Hague he was put off by +slow and evasive answers, which soon shewed to him not only that his own +time was being wasted, but what was to him of far more account, the honour +of his country was being played with. He gave a proud, short,<span class="pagenum"><a name="Page_190" id="Page_190">[Pg 190]</a></span> emphatic +reply to the Dutch sophistries, and at once returned home again, to cause +the celebrated Navigation Act to be passed, forbidding any goods to be +imported into England, except in English ships, or in the ships of the +country where the articles were produced. This was well-nigh ruin to the +trade of the Dutch, who were then the great carriers of the world.</p> + +<p>In no sketch however brief of the lawyers of this disturbed time, can the +name of William Prynne be entirely passed over, and yet it is not as a +lawyer that his name has become memorable. Had he been a mere barrister at +law he would long since have been forgotten, but he was an enthusiastic +puritan of the presbyterian order, and a no less enthusiastic antiquary. +He had probably read as many old records as Saint John or Selden, but had +by no means their faculty of turning them to good account. He first comes +prominently before us as attacking the amusements of the court, especially +theatrical entertainments. For this he was proceeded against in the Star +Chamber, sentenced to pay five thousand pounds and have his ears cut off; +for an attack on episcopacy he was fined another five thousand pounds and +sentenced once more to<span class="pagenum"><a name="Page_191" id="Page_191">[Pg 191]</a></span> have his ears cut off. He afterwards bore a +prominent part in the trial of Archbishop Laud. All along he continued to +pour forth a deluge of pamphlets. He attacked Cromwell with such boldness, +that the Protector felt called upon to imprison him in Dunster Castle, +where however, his confinement was of a most easy character. He is said +while there to have amused himself by arranging the Lutterell Charters, +for which that noble home is famous. He took the side of Charles the +Second at the Restoration, and as a reward was made keeper of the records +in the Tower, a post for which he was peculiarly well fitted.</p> + +<p>There is probably nothing which distinguishes the periods of the +Commonwealth and the Protectorate more markedly from other times of +successful insurrection, than the very slight alteration which the new +powers introduced into the laws of England. The monarchy, it is true, was +swept away, but the judges went on circuit; the courts of Chancery and +common-law sat as usual, the Lords of Manors held their courts, and the +justices of peace discharged their various functions as if they had been +the times of profoundest peace. No confiscations took place,<span class="pagenum"><a name="Page_192" id="Page_192">[Pg 192]</a></span> as had been +the case in the reign of Henry the Eighth and his successor, except in +cases where the owners had been engaged in what the state regarded as +rebellion, and even with regard to those who had fought in what is known +as the first war, almost everyone was let off by a heavy fine. A list of +these sufferers may be seen in <i>A Catalogue of the lords Knights and +Gentlemen that have compounded for their Estates</i> (<i>London Printed for +Thomas Dring at the Signe of the George in Fleet Street</i>, neare Clifford’s +Inne, 1655.) The book is imperfect and very inaccurate. This is not of +much consequence however, as the documents from which it is compiled known +as <i>The Royalist Composition Papers</i>, are preserved in the record office, +and are open to all enquirers. Those who madly engaged in what is known as +the second war, had their estates confiscated by three acts of parliament +of the years 1651 and 1652. These were reprinted and indexed for the +<i>Index Society</i> in 1879. These latter had their estates given back to +themselves or their heirs on the Restoration. It does not seem that those +who were fined, except in a very few cases had any return made to them. +There have been few civil wars ancient<span class="pagenum"><a name="Page_193" id="Page_193">[Pg 193]</a></span> or modern wherein the unsuccessful +have been so tenderly treated. Yet sufferings of the poorer classes among +the Royalists must have been very great. Next to the arbitrary conduct of +the King and those immediately about his person, was the provocation which +the Parliamentarians thought that the established church had given, +firstly because many of the bishops and clergy maintained an extreme +theory of the Divine Right of Kings, which is said first to have been +taught in this country by Archbishop Cranmer. If this opinion were really +accepted as more than a mere figure of flattering oratory, it made those +who complied with it mere slaves to the sovereign, however tyrannical or +wicked he might prove himself. The second ground of resentment was that +they thought Archbishop Laud and many of the bishops and clergy, concealed +Roman Catholics, “disguised Papists,” as the common expression ran. We do +not believe this charge with regard to Laud or most of the others so +rashly accused. We are <i>quite sure</i> it was not so if their writings are to +be taken as a test of their feelings. Whatever may have been the truth, +there is no<span class="pagenum"><a name="Page_194" id="Page_194">[Pg 194]</a></span> doubt that even the more tolerant of what may be called the +low-church party feared the worst. As early as 11th February, 1629, Oliver +Cromwell, who was then member for Huntingdon, made a speech in which he +said, “He had heard by relation from one Dr. Beard ... that Dr. Alablaster +had preached flat Popery at Paul’s Cross, and that the Bishop of +Winchester (Dr. Neale), had commanded him as his Diocesan, he should +preach nothing to the contrary.”<a name='fna_16' id='fna_16' href='#f_16'><small>[16]</small></a> So inflamed, however, were men’s +minds that as soon as the Parliamentary party was strong enough, Laud was +indicted for high treason and beheaded.</p> + +<p>One of the first works of the Parliament when strong enough, was to +abolish the <i>Book of Common Prayer</i>, and put a new compilation called the +<i>Directory</i> in its place. The use of the Prayer Book was forbidden not +only in public offices of religion, but in private houses also. For the +first offence five pounds was to be levied, for the second ten, and for +the third the delinquent was to suffer one year’s imprisonment.<a name='fna_17' id='fna_17' href='#f_17'><small>[17]</small></a> +Whether this stringent law was<span class="pagenum"><a name="Page_195" id="Page_195">[Pg 195]</a></span> rigorously inforced we cannot tell. +Probably in many cases the local justices would be far more lenient to the +clergy who were their neighbours, that would be the legislators at +Westminster, whose passions were fanned by listening to the popular +preachers. Not content with interfering with the service-book, various +acts were passed relating to “Scandalous, Ignorant, and Insufficient +ministers.” That the commissioners who put these acts in force removed +some evil persons we do not doubt, but if John Walker’s <i>attempt towards +recovering an account of the number and sufferings of the Clergy of the +Church of England, who were sequestered ... in the Grand Rebellion</i>, be +not very grossly exaggerated, which we see no reason, to believe, many +innocent persons must have had very hard treatment.</p> + +<p>The marriage laws of England were in a vague and unsatisfactory state from +the reign of Edward the Sixth, until the Commonwealth time. An attempt was +made in 1653 to alter them. Banns were to be published either at Church or +in the nearest market town on three market days, after this the marriage +was to take place before a justice of peace. Many entries of<span class="pagenum"><a name="Page_196" id="Page_196">[Pg 196]</a></span> marriages of +this kind are to be found in our parochial registers. English was made the +language of the law in 1650, but Latin was restored to the place of honour +it had so long held, when the Restoration took place.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_197" id="Page_197">[Pg 197]</a></span></p> +<h2>Cock-Fighting in Scotland.</h2> + +<p> </p> +<p class="dropcap"><span class="caps">It</span> is highly probable that the Romans introduced cock-fighting into this +country. It is generally believed that the sport was made popular by +Themistocles. On one occasion he saw two cocks fighting, and their courage +greatly impressed him, and he felt such exhibitions might teach a useful +lesson of bravery to those who witnessed them. Periodical contests were +exhibited, and were popular amongst the Greeks and Romans and with other +nations, and were much appreciated by a large section of the inhabitants +of this land. In “Bygone England,” by William Andrews, <span class="smcaplc">F.R.H.S.</span> (London +1892), will be found a long account of “Fighting-Cocks in Schools.” One of +the earliest accounts of the pastime in England, says Mr. Andrews, occurs +in a “Description of the City of London,” by William Fitzstephen, who +wrote in the reign of Henry II., and died in the year 1191. He records +that it was the annual custom on Shrove Tuesday for the boys to bring +their game cocks to the schools,<span class="pagenum"><a name="Page_198" id="Page_198">[Pg 198]</a></span> to turn the schoolrooms into cockpits, +the masters and pupils spending the morning witnessing the birds fighting.</p> + +<p>Old town accounts contain many references to this custom, for example at +Congleton, Cheshire, is the following item:—</p> + +<table border="0" cellpadding="0" cellspacing="5" summary="table"> +<tr><td valign="top">“1601.</td> + <td>Payd John Wagge for dressynge<br />the schoolhouse at the great<br />[Congleton] cockfyghte.”</td> + <td valign="bottom">£0 0s. 4d.</td></tr></table> + +<p>Hugh Miller, the famous geologist, who was born in the year 1802, in his +popular volume “My Schools and Schoolmasters,” gives a graphic account of +that amusement in the Cromarty grammar school where he received his +education. “The school,” says Miller, “like almost all other grammar +schools of the period in Scotland, had its yearly cock-fight, preceded by +two holidays and a half, during which the boys occupied themselves in +collecting and bringing up the cocks. And such was the array of fighting +birds mustered on the occasion, that the day of the festival from morning +till night used to be spent in fighting out the battle. For weeks after it +had passed, the school floor continued to retain its deeply stained +blotches of blood, and the boys would be full of exciting narratives +regarding the<span class="pagenum"><a name="Page_199" id="Page_199">[Pg 199]</a></span> glories of gallant birds who had continued to fight until +their eyes had been pecked out; or who in the moment of victory, had +dropped dead in the middle of the cock-pit.” Miller at some length +denounces the cruel sport.</p> + +<p>In England cock-fighting is prohibited by statute 12 and 13 Vict. 3, 92, +under which every person who shall in any manner encourage, aid, or assist +at the fighting or baiting of any bull, bear, badger, dog, cock, or other +animal, shall forfeit and pay a penalty not exceeding £5 for every such +offence. In Scotland it was not illegal until quite recently. An act was +passed in 1850 known as the “Cruelty to Animals (Scotland) Act,” but the +wording of the statute was found not to include the game or fighting-cock. +The sport became popular and the law could not touch those that took part +in the cruel amusement. It was felt to be a national scandal, and to +prevent it, a short statute was passed on 30th May, 1895, whereby the +definition of the word <i>animal</i> in the 11th section was amended by adding +at the end thereof the words “or any game or fighting-cock, or other +domestic fowl or bird.”</p> + +<p>Mr. Robert Bird, the genial and gifted author<span class="pagenum"><a name="Page_200" id="Page_200">[Pg 200]</a></span> of “Law Lyrics,” a volume +which has been warmly welcomed by the public and the press, has made +cock-fighting the subject of a clever poem.</p> + +<p class="poem"><span style="margin-left: 3em;">COCKIELEERIE-LAW.</span><br /> +<span style="margin-left: 4.5em;"><span class="smcap">By Robert Bird.</span></span><br /> +<span style="margin-left: -1em;"><i>In Full Court, Edinburgh, 23rd December, 1892.</i></span><br /> +<br /> +Six legal wigs, like well-plumed tappit hens,<br /> +Sat brooding o’er a pair of fighting cocks;<br /> +While lesser wigs, begowned, and brief in hand,<br /> +Declaimed in flowing periods, of the fray,<br /> +Like ancient bards, that wanted but their harps,<br /> +Their wallets, ballad verse, and song, to make<br /> +The very goose quills, sleeping on the bench,<br /> +Awake! take sides and spill each other’s ink.<br /> +And as they spake, a legal fog dropt down<br /> +Upon the learned six, and each beheld,<br /> +In green mirage, born of the cloud of words,<br /> +Two cocks, Game cocks, crop-combed, erect, and slim,<br /> +With feathers dipped in crimson, gold, and blue,<br /> +Frill-necked, with trailing wings and spurs of steel,<br /> +That on each other flew and pecked and spurred,<br /> +And spurred and pecked again, until the Court<br /> +Reeked like a cock-pit, and the crowd of wigs,—<br /> +Of boyish idle wigs,—took bonnet shapes<br /> +That hooded scowling brows of cursing men,<br /> +Who laid their bets on this bird, and on that,<br /> +As, with quick panting breath and beaks agape,<br /> +They pranced, flew, fought, until the oaken bar<br /> +Seemed spattered o’er with feathers and cock blood.<br /> +<span class="pagenum"><a name="Page_201" id="Page_201">[Pg 201]</a></span>At length one cock the other overthrew,<br /> +And struck quick spurs into his quivering breast<br /> +Until he died; then he, with croaking crow,<br /> +Fell, wounded, bleeding, dying by his side<br /> +Amid the applauding cheers of thirsty throats,<br /> +Soon to be slaked with liquid bets, and so<br /> +The battle ended, but the fog remained.<br /> +<br /> +<span style="margin-left: 1em;">A rustling of silk plumes upon the bench,</span><br /> +Five wigs bent low, and thus great Solon spake—<br /> +<span style="margin-left: 1em;">“’Twas in Kilbarchan that this fight was fought,</span><br /> +And straight the men who prompted it were ta’en,<br /> +And jailed, and tried, and sentenced for the same;<br /> +But now they seek release, and this their plea,<br /> +That in the gracious Act which says that men<br /> +Shall not treat brutes and beasts with cruelty,<br /> +The name of “<i>Cock</i>” is absent; therefore they<br /> +Claim full exemption for their brutish deeds,<br /> +And we, vicegerents of our gentle Queen,<br /> +With spectacle on nose, must well explore<br /> +This vital point in <i>Cockieleerie-law</i>.<br /> +<br /> +<span style="margin-left: 1em;">The illumined page of history reveals</span><br /> +Cock-fighting as an ancient royal sport.<br /> +The Early Greeks and Romans in their day<br /> +Found pastime sweet in setting cock on cock;<br /> +The sage Themistocles took keen delight<br /> +In battling fowls; while glorious Cæsar, too,<br /> +Loved much to back his bird; and, furthermore,<br /> +Marc Antony’s gamecocks did always lose<br /> +When pitted against Cæsar’s fiercer breed.<br /> +King Henry VIII., of sainted memory!<br /> +At Whitehall had a special cock-pit built,<br /> +Wherein his royal birds made lively sport<br /> +For gentle dames and all his merry knights.<br /> +<span class="pagenum"><a name="Page_202" id="Page_202">[Pg 202]</a></span>The most accomplished scholar of his day,<br /> +Squire Roger Ascham, tutor to Queen Bess,<br /> +Much as he loved his books, loved cocks the more,<br /> +And loved them most when victors in the fight.<br /> +And last of all, that great and noble Duke,<br /> +The conqueror of Blenheim, in game birds<br /> +Found something that reminded him of self;<br /> +And thus we see the fighting instinct strong<br /> +In cocks, and other nobles of past time.<br /> +<br /> +<span style="margin-left: 1em;">“Game cocks, we find, from earliest Cockereldom,</span><br /> +Delight in war, as dogs to bark and bite,<br /> +And raining blows upon each other’s ribs<br /> +Do best fulfil their part of nature’s plan,<br /> +Which built them slim and bade them love the fray;<br /> +And while we hope no preference here to show,—<br /> +’Tis open question, whether rearing fowls<br /> +To wring their necks, or match them in the pit,<br /> +Does more exalt the brute or sink the man.<br /> +<br /> +<span style="margin-left: 1em;">“But here, the cocks were armed with spurs of steel,</span><br /> +And ’tis a subtle matter, whether they<br /> +With iron shod, or spurred with native horn,<br /> +Do deal the deadliest blows in angry fray;<br /> +And, while we have our own opinion strong!<br /> +’Tis not within our province to pronounce.<br /> +<br /> +<span style="margin-left: 1em;">“If it be wrong with steel to prick a fowl,</span><br /> +What of the spurs with which hard riders goad<br /> +The bleeding sides of horses in the race,<br /> +Or in the steeplechase, or country hunt?<br /> +And what of hares in coursing run to death?<br /> +Of quivering foxes torn by yelling hounds?<br /> +Of wheeling pigeons slaughtered for a prize?<br /> +We make no mention of the common use,<br /> +<span class="pagenum"><a name="Page_203" id="Page_203">[Pg 203]</a></span>Of otter hunting, grouse and pheasant drives.<br /> +And of the sport termed <i>noble</i>, where the stag<br /> +Is forced upon the guns that lay him low.<br /> +No doubt, two blacks can never make one white,<br /> +Nor multiplying blacks turn black to grey;<br /> +But if to brutalise mankind be thought amiss,<br /> +Then there are other ways, than fighting cocks.<br /> +<br /> +<span style="margin-left: 1em;">“Still that’s beside our purpose, which is this—</span><br /> +To scan the statute, microscope in hand,<br /> +And note if in its sweep humane, we see<br /> +A roosting place for fighting chanticleer.<br /> +And there we find, or rather fail to find,<br /> +The name of “Cock” among the saving list<br /> +Of nineteen beasts protected by the law,<br /> +Though thus the list concludes, “<i>and other kinds<br /> +Of animals domestic</i>,” or like words.<br /> +Are we to find Game Cocks, domestic fowls?<br /> +Are we to hold that birds, are animals?<br /> +Our view is quite the contrary, or else<br /> +There’s not a beast, bird, fish, or insect but<br /> +The term “domestic” would to them apply,<br /> +And make it penal e’en to slay a louse.<br /> +<br /> +<span style="margin-left: 1em;">“And while, in other parts of this same Act,</span><br /> +We find “Cock” followed by the general phrase,<br /> +“<i>Or other kind of animal</i>,” we hold<br /> +It bears not on the matter now in hand,<br /> +But only serves to show that Parliament,<br /> +When brooding, clucking, hen-like, o’er this Act,<br /> +Had Cocks well in their eye, and plainly did,<br /> +Of purpose full, omit them from the list;<br /> +And while bear-fights, bull-fights, dog-fights, and all<br /> +Vile sports and brutish cruelty to beasts,<br /> +The spirit and the letter of the law<br /> +<span class="pagenum"><a name="Page_204" id="Page_204">[Pg 204]</a></span>Do quite forbid, <i>unanimous we hold<br /> +Cock-fighting is a lawful use of Cocks,<br /> +And finding so we liberate these men</i>.<br /> +<br /> +<span style="margin-left: 1em;">“It will be said, this Statute has been read</span><br /> +Reversely in our sister England, where<br /> +It is the Charter of proud Chanticleer;<br /> +But what of that? It alters not our mind!<br /> +But only shews, that they, of feebler clay,<br /> +Stick not at trifles, so the end be good,<br /> +And let the heart o’erbeat the legal mind;<br /> +While we, of sterner stuff, fail not to find<br /> +Motes in the sunshine of their simple wits,<br /> +And gnats to strain out of their cups of wine;<br /> +For in the nice accomplishment and use<br /> +Of splitting hairs, and weighing feathers small,<br /> +Of riddling wisdom from a peck of words,<br /> +We are more skilled, more subtle, more profound<br /> +Than our legal brethren of the South.”<br /> +<span style="margin-left: 1em;">Whereat five horse-hair wigs again bowed down</span><br /> +In low obeisance to the mighty sage,<br /> +And straight the Court was cleared of cocks and men.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_205" id="Page_205">[Pg 205]</a></span></p> +<h2>Fatal Links.</h2> +<p class="center"><span class="smcap">By Ernest H. Rann.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">A consideration</span> of the detection of crime brings forcibly to the mind the +fact that officers of law have frequently to depend for success on the +accidental discovery of the most trifling items and incidents. Conversely +the criminal section of the community who prey on the weakness or folly of +their neighbours have to fear not only a knowledge of their principal +movements, but the discovery of the connecting link which shall complete +the chain of evidence against them. The deepest laid plot, the most +cunning scheme, contains a flaw which may be fatal to their operations, to +their liberty, and even their life, a flaw which no amount of previous +examination may detect, a weakness which can rarely be adequately guarded +against. Justice and the vindication of the law, therefore, depend largely +on a proper regard being paid to minor occurrences, which at first sight +would seem to have no bearing whatever on the<span class="pagenum"><a name="Page_206" id="Page_206">[Pg 206]</a></span> particular case under +consideration. The history of crime contains numberless instances where +the criminal has been brought to justice through one or other of these +causes—the presence of particular hairs or threads on his clothing or on +the weapon used, the direction of certain cuts on the body of his victim, +the possession of trifling articles. At other times dreams have played no +inconsiderable part in the vindication of the law, which has also been +aided by supernatural visitants, or by the self-consciousness of the +criminal.</p> + +<p>It would be impossible in a short article like the present to offer a full +list of cases of this description, but a few typical instances may be +taken with the object of showing how crimes, long hidden, have been +discovered in the most remarkable manner. Probably the best example +occurred at Augsburg, in 1821. A woman named Maria Anna Holzmann lived in +a house in the town belonging to one Sticht. Her means only permitted her +to occupy a few of the rooms, and the remaining parts of the premises were +let to lodgers, among whom were George Rauschmaier and Joseph Steiner. On +Good Friday, April 20th, Holzmann disappeared.<span class="pagenum"><a name="Page_207" id="Page_207">[Pg 207]</a></span> She had not given notice +of her intended departure, and nothing was known of it until some days +later when Rauschmaier and Steiner also left the premises, saying that +their landlady had previously quitted the house, leaving them in +possession of her keys. This information, however, was not given to the +police until May 17th. In the meantime Holzmann’s relatives had become +apprehensive of her safety, and being reluctantly forced to the conclusion +that foul play had befallen her, they decided to take an inventory of her +property, as it was known that, although in humble circumstances, the +woman had managed by care and economy to amass considerable wealth. It was +found, however, that the greater part of her money and other valuables +were missing.</p> + +<p>In spite of active enquiries no further action of importance in the matter +was possible until the following January, when Theresa Belter, a +washerwoman who also lived in the house, announced that she had found a +thigh of a human body hidden in the loft. Further investigations revealed +a leg and the other thigh in a heap of rubbish in a corner of the room, +and between the chimney and the roof, a trunk without head or<span class="pagenum"><a name="Page_208" id="Page_208">[Pg 208]</a></span> limbs was +discovered. An old gown and a petticoat, identified as portions of the +dress of Holzmann, were also brought to light, while search in +Rauschmaier’s room disclosed other parts of a woman’s body. The head was +missing, but when news of the unmistakeable crime was noised abroad, a +neighbouring manufacturer stated that during the preceding year he had +found a skull, still bearing portions of flesh and hair, in his factory +weir, but had not considered the “find” worthy of preservation.</p> + +<p>There could be no doubt that Maria Anna Holzmann had been murdered, and +the whole machinery of the law was put in motion to bring the criminals to +justice. Suspicion fastened itself strongly upon the two men, Rauschmaier +and Steiner, but actual evidence against them, or indeed against anyone, +was of the scantiest description until the separate pieces of the woman’s +body were placed together. While the left arm was being examined, a brass +ring fell out of the bend of the elbow, whence it had evidently slipped +from the finger of the murderer. Whose was the ring? then became the all +important question. Rauschmaier was arrested and confessed that he had +stolen and pawned several articles of <span class="pagenum"><a name="Page_209" id="Page_209">[Pg 209]</a></span>Holzmann’s property, but he sternly +denied having committed the murder. The property, including a pair of +ear-rings, had been recovered from the pawnbroker’s, and these, with the +brass ring, were laid before the accused. He had not wit enough to discern +the trap laid for him, and immediately on seeing the ornaments, he +exclaimed “The ear-rings and the gold and brass rings are mine. The brass +ring I always wore until within four or five weeks after Easter, since +when I have worn gold ones. The brass ring fits the little finger of my +left hand; it slips on and off with ease.” This foolish statement, and the +place of the discovery of the ring, proved conclusively that Rauschmaier +was the murderer of the unfortunate Holzmann. Subsequently he made full +confession of the crime, stating that the brass ring must have slipped off +while he was cutting up the body. He paid the penalty of his sins with +death.</p> + +<p>The “Greenacre” case, which occurred in 1836, was similar to the foregoing +in many of its details. In that year, portions of the mutilated trunk of +an old woman named Brown were found in a house in Edgeware Road, wrapped +in old rags and sacking. Subsequently the head was discovered in Regent’s +Canal, and the limbs in a drain in<span class="pagenum"><a name="Page_210" id="Page_210">[Pg 210]</a></span> the neighbourhood of Camberwell. +Comparison between the various portions left no doubt as to the identity +of the deceased, and James Greenacre, whom Brown intended to marry, and to +whose house she had gone with all her property, was accused of the murder. +A woman named Gale with whom he lived was also charged with complicity in +the deed. Once more suspicion, however strong, was insufficient to bring +the crime right home to the accused, but the discovery, among Greenacre’s +property, of some rags corresponding with the pieces covering the +mutilated remains, together with a few articles belonging to Brown, turned +suspicion into actual proof. Greenacre was condemned to death, and his +companion sentenced to transportation for life.</p> + +<p>The murder of William Begbie, at Edinburgh, is a remarkable case of the +manner in which the author of a crime may remain long hidden, and only +then be discovered by accident. Begbie was a bank porter, and on November +30th, 1806, he was employed to carry a parcel of notes, worth about +£4,000, to one of the bank’s customers. On his way he had to pass through +a narrow, dark, and tortuous entry, and there he was brutally murdered and +the notes were stolen.<span class="pagenum"><a name="Page_211" id="Page_211">[Pg 211]</a></span> Although a knife, of a particular pattern, was +left in the body, the murderer remained at large, and no clue to the +terrible crime could be unearthed. Nine months later the bundle of notes, +untouched, was found hidden in a wall, but long years passed before the +mystery was completely solved. In 1822 a Bow Street runner named Denovan, +while visiting Leith, chanced to fall into conversation with a sailor +lately returned from captivity among the French. Speaking of old times the +mariner accidentally mentioned that coming ashore one morning he had +noticed a man like William Begbie, followed by a person dressed in black +and of respectable demeanour. He lost sight of them for a few moments, but +later on he was surprised to see the man in black rush out of the narrow +entry with a bundle under his arm. On the next day he heard of the murder, +and feeling confidant that he could throw light on the crime, he informed +the mate of his vessel of what he had seen. Permission to go ashore was, +however, refused. The vessel sailed, was captured by the French, and the +sailor witness did not recover his liberty for fifteen years. Denovan set +to work with this important clue, and enquiries proved that the man in +black was no other than a notorious<span class="pagenum"><a name="Page_212" id="Page_212">[Pg 212]</a></span> criminal named Mackoul, who had lived +in Edinburgh in 1806. The law had claimed its own, however, previous to +the sailor’s disclosures. In 1820 Mackoul had suffered death for robbery; +still, though he was beyond punishment for his old crime in Edinburgh, it +was satisfactory to know that the mystery of the bank porter’s death had +at last been solved.</p> + +<p>Probably the most notorious case in English annals of murder discovered by +extraordinary means is that of the killing of Daniel Clarke by Eugene +Aram. The main facts of the case are so well known that it is scarcely +necessary to enter into them here. Aram, assisted by a man named Houseman, +it may be remembered, murdered Clarke for the sake of his wealth, and hid +the body in St Robert’s cave, near Knaresborough. There it remained from +1745 till 1759, when it was accidentally discovered by a labourer. Close +examination led to the conclusion that the body, or rather the skeleton, +was that of a murdered man, and when the mysterious and almost forgotten +disappearance of Clarke was remembered, steps were taken to arrest his +quondam companions Aram and Houseman. The latter turned king’s evidence, +and on his testimony Aram was <span class="pagenum"><a name="Page_213" id="Page_213">[Pg 213]</a></span>executed, leaving a shady memory to be +invested with undeserved romance by a poet and a novelist of the following +century.</p> + +<p>Researches into modern criminal records also reveal a number of +interesting cases similar to those cited above. A few years ago a Pole +named Lipski was convicted in London of the murder of a woman. Strenuous +efforts were made to obtain a pardon, on the ground that he had been +wrongly convicted, but the solitary fact on which the Home Secretary +decided to allow the law to take its course was that the door of the room +had been locked in which the woman was found murdered, with Lipski himself +hiding under the bed. And in tracing the Muswell Hill murder to its +authors, the police were aided in their endeavours by the discovery of a +common lantern which had been left on the scene of the crime. It was +supposed to belong to a relative of one of the suspected men, and in order +to verify this important link in the chain of evidence, a youthful agent +of the detective force was employed to spin his top in front of the +supposed owner’s house, engage him in conversation if possible, and obtain +evidence of the ownership of the lantern. The result was completely +satisfactory; the suspicions<span class="pagenum"><a name="Page_214" id="Page_214">[Pg 214]</a></span> of the police were confirmed, and the +murderers brought to justice, mainly, it may be said, through the +lantern’s silent testimony.</p> + +<p>Another case of murder, which occurred in 1806, was brought home in a +singular and complete manner. A Deptford gentleman, named Blight, was +killed by a pistol-shot, and Sir Astley Cooper, from an examination of the +victim’s wounds and of the place of his murder, arrived at the opinion +that none other than a left-handed man could have committed the crime. +Acting on this conclusion the police arrested one Patch, who had been seen +in the locality. When Patch was asked to hold up his hand to plead the +indictment, he put up his left hand. The jury brought in a verdict of +guilty, and before execution the criminal made full confession of his +terrible deed.</p> + +<p>Dreams also have played no inconsiderable part in the discovery of crime. +We have not space in the present article to notice all trials where +dream-evidence has been offered to the court; a brief notice of those +cases in which it has had an important bearing must suffice. The most +notorious instance, of course, is that of Maria Martin, the victim of the +Red Barn tragedy. After her departure from home, in<span class="pagenum"><a name="Page_215" id="Page_215">[Pg 215]</a></span> order, as was +supposed, to many William Corder, nothing, either by way of letters, or +otherwise, was heard of her, except brief mention in Corder’s +communications. Nearly twelve months passed, when Mrs. Martin was startled +and horrified by dreaming, on three successive nights, that Maria had been +murdered and buried in the Red Barn. After much persuasion her husband and +son consented to search the place, and there, in the exact spot indicated +by Mrs. Martin as having been pointed out in her dreams, was found the +body of her missing daughter, buried under the flooring in a sack.</p> + +<p>Mention may also be made of the case of Ulick Maguire, an Irish farmer, +whose wife dreamed that her husband had been murdered by a disappointed +lover of hers, named O’Flanagan. A few days later an idiot boy, who lived +in the house, was heard shrieking in terror: “Shanus dhu more O’Flanagan +(big black James) has kilt Ulick, and buried him under the new ditch at +the back of the garden. I dhramed it last night, evry wurrd av it.” The +singular coincidence of the lad’s dream with her own excited Mrs. +Maguire’s suspicions to the utmost, especially as her husband was away +from home at<span class="pagenum"><a name="Page_216" id="Page_216">[Pg 216]</a></span> the time. She ordered a search at the particular spot +mentioned by the idiot boy, and there, to her horror, was found the body +of Ulick, with the skull cleft in twain. Immediate request was made for +“big black James.” He had absconded and enlisted in the army, but on being +charged with the crime he admitted his guilt, and suffered the penalty of +death.</p> + +<p>In one instance, by far the most wonderful of its kind, the victim of a +murder has appeared in successive dreams, and played the part of detective +with admirable skill and effectiveness. A Grub Street victualler, named +Stockton, was murdered towards the close of the seventeenth century. Three +men were suspected of the crime, but neither of them could be discovered, +and the affair seemed likely to become one of the mysteries of crime, when +a Mrs. Greenwood dreamed that Stockton, who had been a neighbour during +life, had taken her to a house in Thomas Street, telling her that his +murderer was inside. On going to the house in person Mrs. Greenwood was +told that Maynard, one of the suspected men, had gone abroad. The +following night Stockton appeared and showed her the features of Maynard, +and gave her such particulars of the<span class="pagenum"><a name="Page_217" id="Page_217">[Pg 217]</a></span> man’s habits and resorts that he was +captured within a few hours. From Maynard the names of his partners in +guilt, Bevel and Marsh, were obtained, but again the authorities were at +fault, until Stockton indicated the house where Marsh visited, and the +yard (afterwards discovered to be the yard of Marshalsea Prison) in which +Bevel would be found. From a crowd of other prisoners Mrs. Greenwood +identified Bevel, and shortly afterwards, through her strange testimony, +Marsh also was arrested. Then, as an old chronicle of the case affirms, +Stockton appeared for the last time, and thanked her for her good offices. +We have given the story as it has come down through two centuries; a whole +body of clergymen attested its accuracy at the time, and present-day +enquirers would have great difficulty, we imagine, in conclusively proving +that the murder of Stockton was traced by other and less extraordinary +means.</p> + +<p>Closely allied to the evidence furnished by dreams, and indeed, as in the +foregoing case of Stockton, sometimes barely distinguishable from it, is +that offered by ghosts, actually seen by witnesses in a waking, but +hallucinatory, state. Such evidence would scarcely be admissable in<span class="pagenum"><a name="Page_218" id="Page_218">[Pg 218]</a></span> +modern courts of law, but in past ages it was freely employed, and has +served to bring criminals to the gallows. It must be admitted that the +other testimony against the accused was strong, but in numerous instances +ghosts have been instrumental in putting the officials on to a clue or +track which they would most likely never have discovered by their own +unaided efforts. In his “History of Durham,” Surtees mentions the case of +Anne Walker, who lived in 1630, and had become engaged in an intrigue with +a relative of the same name. The girl was placed for a time under the care +of a friend in a neighbouring village, but one night she was removed from +there by Walker and a man named Sharp. From that date no one saw her +alive. A fortnight afterwards, Graime, a fuller, was terrified by the +appearance in his mill of Anne Walker’s ghost, “dishevelled, +blood-stained, and with five wounds in her head.” She told him the whole +story of her murder; how Sharp had killed her with a collier’s pick, and +then thrown her body down a shaft. Graime hesitated to use this strangely +acquired information. Apparently incensed at his delay, Anne Walker +repeatedly appeared, and in order to rid himself of these<span class="pagenum"><a name="Page_219" id="Page_219">[Pg 219]</a></span> visitations, +the frightened fuller at length acquainted the authorities with his story. +Immediate enquiry confirmed his statements in every particular. Walker and +Sharp were arrested, charged with the murder of the girl, found guilty, +and executed, though to the last they maintained their innocence of the +crime.</p> + +<p>A case, somewhat similar, has occurred even in the present century, and in +matter-of-fact, new world Australia, where visions might be expected to be +few and far between. The friends of a well-to-do settler near Sydney were +surprised to hear from his steward that he had been suddenly called to +England on important legal business. Remembering the vast wealth of the +man, and the necessity for precautions in regard to it, they accepted the +statement, and also recognised the steward’s control of the estate during +his master’s absence. What was the astonishment, however, of one of these +friends, when on riding over the estate he saw the owner, whom he thought +to be in England, sitting on a neighbouring stile? The figure looked at +him silently and sorrowfully, then walked towards a pond and disappeared. +Drags were procured and the water searched, when the body of the absent +owner was brought<span class="pagenum"><a name="Page_220" id="Page_220">[Pg 220]</a></span> to the surface. Confronted with the corpse the steward +confessed that he had murdered his master at the identical stile on which +the ghost had sat.</p> + +<p>Pierre le Loyer, a French writer on law and the supernatural, mentions in +his “Discours des Spectres,” the case of a man who mysteriously vanished, +having, as was supposed, been murdered. A few weeks later the ghost of the +absentee appeared to his brother, took him to a lonely spot, and there +pointed out where he had been murdered and buried by his own wife and her +lover. Enraged at this domestic perfidy and wickedness the brother +denounced his sister-in-law, and on his testimony she was condemned to be +strangled and her body afterwards burned.</p> + +<p>About half a century ago a peculiar case of fraud was disclosed by +remarkable means during the hearing of a law-suit in Tuscany. The decision +of the court turned on the point whether a certain word had been erased +from a particular document of importance. Chemical processes were alleged +to have been employed, and acting on scientific knowledge one of the +lawyers proposed that the document should be heated, as thereby a slight +difference of shade or colouring between<span class="pagenum"><a name="Page_221" id="Page_221">[Pg 221]</a></span> the paper and the letters +supposed to have been removed might become visible. Permission was given +to try the experiment, and on the application of heat the important word +in question immediately appeared, and the court gave a verdict in +accordance with this ingeniously devised testimony.</p> + +<p>Since that time the progress and development of science have enabled +criminal investigation to be conducted by methods which would otherwise be +impossible, and with almost unerring certainty and decision. The +microscope and the spectroscope have been employed in numerous cases of +murder and forgery where less subtle means of discovery would have proved +useless; chemical analysis has become an important agent of detection, +while photography has also rendered signal service in the cause of +justice. We may not have concerned ourselves with the numerous methods by +which bank-note forgeries are detected; hitherto our references have been +mainly to the more serious crime of murder, and with a few instances of +this character brought to light through modern science our list must +close.</p> + +<p>Although, generally speaking, the microscope cannot discern any difference +between the blood of<span class="pagenum"><a name="Page_222" id="Page_222">[Pg 222]</a></span> man and that of other mammalia, yet the merest +examination suffices to show the difference between mammalian blood and +that of birds, reptiles, or fishes. In the one case the red blood +corpuscles are round, and without a nucleus; in the other they are oval +and nucleated. On this fact the evidence for a prisoner at Chelmsford +charged with murder was completely rebutted. Blood stains had been found +on his clothes, which, according to his counsel, had been caused by +chicken’s blood. But the prosecution brought forward a microscopist, who +stated that the blood stains were mammalian, and on this testimony the +plea of the prisoner was rejected. In the following year, and at the same +assizes, the testimony against a man charged with murder was strengthened +by the microscopical discovery of cotton fibres on a certain weapon, which +he was said to have used, while the murderers of a man who had been kicked +to death were convicted on the evidence of two doctors, who found on the +boots of the accused a number of hairs corresponding with the hair on the +head of the victim. Evidence of this kind is becoming of extreme +importance. Hardly a serious crime is investigated without the application +of one or<span class="pagenum"><a name="Page_223" id="Page_223">[Pg 223]</a></span> other of these scientific methods of detection, and with each +success the career of the criminal becomes increasingly difficult and +arduous, and his chances of success more remote. Of remarkable discoveries +of crime the microscope, the camera, and the spectroscope furnish the most +subtle instances, and it is quite possible that before long other methods +of investigation, founded on the most recent scientific achievements, will +also be brought into operation. The phonograph and the Röntgen rays are +only waiting their turn to serve in the cause of justice.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_224" id="Page_224">[Pg 224]</a></span></p> +<h2>Post-Mortem Trials.</h2> +<p class="center"><span class="smcap">By George Neilson.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">It</span> might be thought that a man’s death made an end of him, and that his +mere body had no rights or duties except that of getting decently buried. +The middle age had other ideas. The dead still had status and duties. +Continental laws recognised acts of renunciation in which a widow laid the +keys on her husband’s corpse, or tapped his grave with the point of a +halberd. The body of a murdered person, or, it might be his hand merely, +might be carried before the judge to demand vengeance.<a name='fna_18' id='fna_18' href='#f_18'><small>[18]</small></a> By English +thirteenth century law<a name='fna_19' id='fna_19' href='#f_19'><small>[19]</small></a> legal possession of real estate was thought to +remain in a man, not until he died, but until his body was borne forth to +burial. The dead might be a very potent witness, as shewn by the ordeal of +bier-right,<a name='fna_20' id='fna_20' href='#f_20'><small>[20]</small></a> a practice founded on the belief that the murderer’s +touch<span class="pagenum"><a name="Page_225" id="Page_225">[Pg 225]</a></span> would cause the victim’s wounds to bleed afresh. Thus variously +qualified to act as witness or prosecutor as occasion required, it is not +surprising to find the dead as defendant also.</p> + +<p>English history<a name='fna_21' id='fna_21' href='#f_21'><small>[21]</small></a> remembers the strange scene enacted in the monastery +of Caen in 1087, when William the Conqueror lay dead there, and the +ceremonials of his interment were interrupted by a weird appeal. Ascelin, +the son of Arthur, loudly claimed as his, neither sold nor given, the land +on which the church stood, and, forbidding the burial, he appealed to the +dead to do him justice. More than one<a name='fna_22' id='fna_22' href='#f_22'><small>[22]</small></a> old English poem turned its plot +round the ancient canon law, by which a burial might be delayed for debt. +The dead was arrestable: a law afterwards set aside, “for death dissolved +all things.” But in more codes than one death did not dissolve liability +for the consequences of high treason.</p> + +<p>In Scotland,<a name='fna_23' id='fna_23' href='#f_23'><small>[23]</small></a> in the year 1320, at the “black parliament” of Scone, +several Scotsmen were convicted of conspiracy against King Robert the<span class="pagenum"><a name="Page_226" id="Page_226">[Pg 226]</a></span> +Bruce. Most of them were drawn, hanged, and beheaded. But a Scottish +historian of the time tells us that Roger of Mowbray, one of the accused, +having died before his trial, “his body was carried to the place, +convicted of conspiracy, and condemned to be drawn by horses, hung on the +gallows, and beheaded.” It is to the credit of Bruce that he did not allow +the corporal part of the sentence to be carried out, although many entries +in the charter rolls<a name='fna_24' id='fna_24' href='#f_24'><small>[24]</small></a> shew that the consequent escheats of the +traitor’s lands served to reward the loyalty of others. His body convicted +of conspiracy! How came this singular procedure into Scottish practice?</p> + +<p>In England, towards the close of the fourteenth century, although escheats +were not less keenly looked after than in Scotland—and that sometimes in +cases<a name='fna_25' id='fna_25' href='#f_25'><small>[25]</small></a> where men had died unconvicted,—the purpose of attainder +appears to have been effected without the expedient of calling the dead to +the bar. The dead, however, was convicted. In the case of Robert +Plesyngton,<a name='fna_26' id='fna_26' href='#f_26'><small>[26]</small></a> for instance, in 1397, the judgment of Parliament bore an +express conviction of treason, “<i>noun-obstant la mort de dit<span class="pagenum"><a name="Page_227" id="Page_227">[Pg 227]</a></span> Roberd</i>.” In +1400, John, Earl of Salisbury, challenged for treason by Lord Morley, was +killed before the day appointed for the duel. The court not only adjudged +him a traitor,<a name='fna_27' id='fna_27' href='#f_27'><small>[27]</small></a> but on grounds eked out by Roman law subjected his +sureties in costs to his accuser—said costs including the handsome fee of +100s. and twelve yards of scarlet cloth to the lawyer Adam of Usk.<a name='fna_28' id='fna_28' href='#f_28'><small>[28]</small></a></p> + +<p>In all features save perhaps that of the actual presence of the body in +the trial, warrant can be found for the Scottish practice in Roman law. +The offence of “majesty,” or high treason, formed an exception to the +great humane general rule that responsibility for crime ended with the +criminal’s breath. Under the Lex Julia<a name='fna_29' id='fna_29' href='#f_29'><small>[29]</small></a> death was no defence to a +charge of “majesty;” proceedings could be raised to stamp the dead man’s +name with the brand of treason; his kinsmen might if they chose deny and +defend; but if they failed to clear him his goods were confiscated and his +memory damned. There is in the annals of Rome at least one instance<a name='fna_30' id='fna_30' href='#f_30'><small>[30]</small></a> of +a <span class="pagenum"><a name="Page_228" id="Page_228">[Pg 228]</a></span>death-sentence of this sort pronounced after the accused was in his +grave. Nor was its scope confined absolutely to high treason. The Church +had a quiet way of appropriating tit-bits of barbaric policy for pious +uses. The Emperor Theodosius<a name='fna_31' id='fna_31' href='#f_31'><small>[31]</small></a> said that the inquisition for heresy +ought to extend to death itself; and as in the crime of majesty, so in +cases of heresy, it should be lawful to accuse the memory of the dead. The +Popes endorsed the analogy,<a name='fna_32' id='fna_32' href='#f_32'><small>[32]</small></a> for heretics had goods, which sometimes +were worth forfeiting. The spiritual authority however was of more moment. +The Church claimed the power to bind and loose even after death,<a name='fna_33' id='fna_33' href='#f_33'><small>[33]</small></a> and a +Welsh twelfth century bishop did not stand alone when he carried it so far +as to scourge the body of a king who had died excommunicate.<a name='fna_34' id='fna_34' href='#f_34'><small>[34]</small></a> On the +same principle dead heretics—dead before sentence of heresy—were +burnt.<a name='fna_35' id='fna_35' href='#f_35'><small>[35]</small></a></p> + +<p>It was by a close following up of Roman jurisprudence, with, peradventure, +some added light from the law and practice of the Church, that<span class="pagenum"><a name="Page_229" id="Page_229">[Pg 229]</a></span> the French +devised their <i>procés au cadavre</i>,<a name='fna_36' id='fna_36' href='#f_36'><small>[36]</small></a> by which the memory of a dead +traitor was attacked. Its special application was to lesemajesty described +as divine and human, the former an elastic term covering offences against +God and religion. Allied to this latter category, though not exactly of +it, was the mortal sin of suicide. Self-slaughter was so deeply abhorrent +to mediæval thought as not only to be reckoned more culpable, but to call +for more shameful punishment, than almost any other crime. So coupling the +traitor and the self-slayer in the same detestation, the law assailed both +by the same strange post-mortem process, and (by methods of reasoning +which Voltaire was one of the first to ridicule) consigned their souls to +perdition, their memories to infamy, and their bodies to the gibbet.<a name='fna_37' id='fna_37' href='#f_37'><small>[37]</small></a> +The treatment of the suicide was peculiar in its refinements of symbolic +shame. The body was, by the customary law (for example, of Beaumont<a name='fna_38' id='fna_38' href='#f_38'><small>[38]</small></a>), +to be drawn to the gibbet as cruelly as possible, <i>pour monstrer<span class="pagenum"><a name="Page_230" id="Page_230">[Pg 230]</a></span> +l’experience aux aultres</i>. The very door-step of the house in which he lay +was to be torn up, for the dead man was not worthy to pass over it. +Impalement, transfixture by a stake, though well enough known on the +continent as a punishment of the living, became there and in England +alike, the special doom of the suicide. Yet the <i>procés au cadavre</i> had no +footing in English law, and although it was already in 1320 received in +Scotland, we shall find reason for thinking it not wholly welcome.</p> + +<p>After the trial in 1320 before alluded to, the records in Scotland are +silent for over two centuries, and it is not until 1540 that the process +is heard of again. In that year<a name='fna_39' id='fna_39' href='#f_39'><small>[39]</small></a> the heirs of one Robert Leslie were +summoned to the court of parliament to hear his name and memory “delete +and extinct,” for certain points and crimes of lesemajesty, and his lands +and goods forfeited to the king. Legal authorities,<a name='fna_40' id='fna_40' href='#f_40'><small>[40]</small></a> obviously +forgetful of the fourteenth century instance, follow one another in the +mistake of regarding Leslie’s as the first of its kind. The legality of +the<span class="pagenum"><a name="Page_231" id="Page_231">[Pg 231]</a></span> procedure was called in question at the time. Indeed, so loud was the +murmur that it can still be heard in the act passed to put it to silence. +“It is murmurit,” says the enactment, “that it is ane noveltie to rais +summondis and move sic ane actioun aganis ane persoun that is deide, +howbeit the commoun law directly providis the samin.”<a name='fna_41' id='fna_41' href='#f_41'><small>[41]</small></a> The three +estates of parliament therefore on the motion of the lord advocate, +declared unanimously “all in ane voce, but<a name='fna_42' id='fna_42' href='#f_42'><small>[42]</small></a> variance or discrepance,” +that the cause was just and conform to common law. In another case of the +following year<a name='fna_43' id='fna_43' href='#f_43'><small>[43]</small></a> the charge and judgment were enrolled in the Acts of +Parliament. The widow and the heir of the late James Colville were +summoned “to see and hear that the said deceased James, whilst he lived +had committed the crime of lesemajesty.” The deliverance of parliament as +tribunal was by its terms an actual sentence upon the dead—that the +deceased James “hes incurrit the panis of crime of lesemajeste” for which +causes the court decerned “the memoure of the said umquhile James to be +deleit,” and his possessions confiscated to the crown.</p> + +<p><span class="pagenum"><a name="Page_232" id="Page_232">[Pg 232]</a></span>Parliament which had unanimously voted the procedure well based in law, +found that it was dangerous. It was necessary to restrict its scope. In +1542, it is on parliamentary record<a name='fna_44' id='fna_44' href='#f_44'><small>[44]</small></a> that “the lordis thinkis the said +act [<i>i.e.</i>, of 1540], ower generale and prejudiciale to all the barions +of this realme.” This would never do:—an act prejudicial to the barons! +So it became statute law in 1542, that it should apply only to cases of +grave treason, public and notorious during the offender’s life, and that +prosecution for the future must be raised within five years after the +traitor’s death. It was a reasonable restraint, not always observed.</p> + +<p>During the reigns of Mary and James VI. a number of trials occurred in +which this singular process was resorted to, and in some, if not all, of +which the body of the dead appeared at the bar. Occasionally it was +embalmed for the purpose.<a name='fna_45' id='fna_45' href='#f_45'><small>[45]</small></a> It had been a part of the border code, +prevalent on the marches of England and Scotland, that an accused should, +although dead, be brought to the place of judgment in person. In 1249, the +marchmen of both realms had declared the law in<span class="pagenum"><a name="Page_233" id="Page_233">[Pg 233]</a></span> that sense. They said +that, in any plea touching life and limb, if the defendant died the body +of him should be carried to the march on the day and to the place fixed +between the parties, because—concludes this remarkable provision<a name='fna_46' id='fna_46' href='#f_46'><small>[46]</small></a>—“no +man can excuse himself by death.” And in the end of the sixteenth century +the borderers had not forgotten the tradition their forefathers had +inherited in the thirteenth, for in 1597, when Scotsmen and Englishmen +were in fulfilment of their treaty obligations presenting their promised +pledges, the custom was scrupulously observed on the English side. All +were there,—all, though all included one that was no more.<a name='fna_47' id='fna_47' href='#f_47'><small>[47]</small></a> “Thoughe +one of the nomber were dead, yet was he brought and presented at this +place.” They evidently believed on the borders, which Sir Robert Cary with +some reason called<a name='fna_48' id='fna_48' href='#f_48'><small>[48]</small></a> an “uncristned cuntry,” that a man could best prove +that he was dead by attendance in person.</p> + +<p>In trials for treason this principle was pushed in some instances to +strange extremes. Probably one underlying reason of this, at a date so +late, was to make sure that no formality should be<span class="pagenum"><a name="Page_234" id="Page_234">[Pg 234]</a></span> lacking to make the +forfeiture effective. But the main reason one must believe lay in its +being a traditional observance. In the trial in 1600, of the Earl of +Gowrie and his brother for an alleged attempt on the king’s life, the +privy council on the preamble<a name='fna_49' id='fna_49' href='#f_49'><small>[49]</small></a> that it was necessary to have their +corpses kept and preserved unburied, issued an act to that effect, and the +treasurer’s accounts contain an entry “for transporting of the corpis of +Gowrie and his brother.” Their bodies were accordingly produced at the +trial, and the sentence which pronounced them guilty of treason and +lesemajesty during their lifetime, declared<a name='fna_50' id='fna_50' href='#f_50'><small>[50]</small></a> their name, memory, and +dignity extinguished, and ordained that “the dead bodeis of the saidis +Treatouris,” should be hanged, quartered, and gibbetted. Their “twa +hedis,” a grim diarist<a name='fna_51' id='fna_51' href='#f_51'><small>[51]</small></a> tells, were set upon the tolbooth, “thair to +stand quhill<a name='fna_52' id='fna_52' href='#f_52'><small>[52]</small></a> the wind blaw thame away.”</p> + +<p>The last case<a name='fna_53' id='fna_53' href='#f_53'><small>[53]</small></a> in the annals, in which this revolting Scottish +“practick” was put into effect, occurred in 1609. Robert Logan, of +Restalrig,<span class="pagenum"><a name="Page_235" id="Page_235">[Pg 235]</a></span> had been nearly three years in his grave when it was given out +that he had been a party to the alleged Gowrie conspiracy against King +James. A process<a name='fna_54' id='fna_54' href='#f_54'><small>[54]</small></a> was at once taken in hand to proscribe his memory and +escheat his property. As death was no excuse, neither was burial; and the +ghastly form was gone through of exhuming the bones for presentation at +the trial. It was a case plainly within the exception provided for in the +act of 1542, for the man was not “notourly” a traitor, he had died in +repute of loyalty: but the Crown was eager for a conviction. Much +incredulity had been rife with regard to the Gowrie conspiracy. The +evidences now adduced were—on the surface at any rate, although, perhaps, +as many critics still think, on the surface only,—circumstantial and +strong. The prosecution was therefore keenly pressed, and the reluctance +of some of the judges overcome. A jocular jurist-commentator on these +post-mortem trials, has remarked<a name='fna_55' id='fna_55' href='#f_55'><small>[55]</small></a> that the bones of a traitor could +neither plead defences, nor cross-question witnesses. But in the dawn of +the seventeenth century they could turn the sympathy<span class="pagenum"><a name="Page_236" id="Page_236">[Pg 236]</a></span> of the court against +the charge, as it appears they did in Logan’s case. The proofs, however, +looked overwhelming, and the forfeiture was carried without a dissenting +voice from the bench—from the bench, because it was, as all Scots +treason-trials then were, a trial by judges only, not by judge and jury. +Logan’s memory was declared extinct and abolished, and his possessions +forfeited. The judgment, however, wreaked no vengeance on the exhumed +remains. Humanity was asserting itself even in the trial of the dead, and +that institution itself was doomed. Although in disuse ever after, it did +not disappear from the theory of law until 1708, when the act 7 Anne, +chapter 21, prescribing jury-trial for treason, assimilated the Scots law +on the subject to that of England, and thus brought to an unregretted end +one of the most gruesome of legal traditions.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_237" id="Page_237">[Pg 237]</a></span></p> +<h2>Island Laws.</h2> +<p class="center"><span class="smcap">By Cuming Walters.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">A very</span> curious and interesting phase of self-government is that which is +supplied by the independent legal system established in various small +islands in the United Kingdom. It is amusing to notice these little +communities on rocky islets tenaciously preserving their ancient +privileges, and revelling in the knowledge that they have a code of their +own by no means in harmony with the statute law of the country of which +they are an insignificant part. The tribunals and the legal processes in +the Channel Islands, in the Scilly Islands, in the Isle of Man, and even +in some of the smaller islands round the English coast, differ entirely +from those established in the motherland; and any suggestion of change is +warmly resented. In many cases it has not, of course, been worth while to +insist on reform, inasmuch as the islands are inhabited only by a few +families, who may be left in peace to settle their own differences if any +occur.</p> + +<p><span class="pagenum"><a name="Page_238" id="Page_238">[Pg 238]</a></span>There are a great many scattered islets about the sinuous line of Irish +coast, very few of which are ever visited by strangers. The conditions of +life in these isolated places are seldom investigated, and yet we find +there are some remarkable survivals of old customs and relics of ancient +laws. The people are independent, because they feel they are totally +separated from the mainland, and possess neither the means nor the desire +to cross over to it. They are in many respects a race by themselves, and +their attachment to their little homes of rock is such that one of their +severest punishments for offenders is to transport them to Ireland. Such +an island is Raghlin, or Rathlin, six miles distant from the north-west of +Antrim, but might be six hundred miles, judging by the slight intercourse +the handful of inhabitants has with the larger world. Another such island +is Tory, ten miles from the Donegal coast, where up to a few years ago the +dwellers were unacquainted with any other law than that of the Brehon +code. A visitor in 1834 found them choosing their own judge, and yielding +ready obedience to mandates “issued from a throne of turf.” In this case, +and in the case of the Cape Clear islanders, it was found that the threat +of banishment to the <span class="pagenum"><a name="Page_239" id="Page_239">[Pg 239]</a></span>mainland was severe enough to prevent serious crime. +These feelings probably have been modified in more recent times, yet the +intensity of the attachment of islanders to their native rock is one of +the ineradicable characteristics which account for the sturdy independence +manifested in their laws and customs. Their little homes are miniature +worlds which they prefer to govern themselves in their own way. We may +take the Scillies as a favourable example, where the natives cling to the +system of civil government by twelve principal inhabitants forming a Court +presided over by a military officer. The Court is held every month, and it +has jurisdiction in civil suits and minor causes. The Sheriff for Cornwall +has, or, at all events, had, no jurisdiction in the islands, though +persons prosecuted for felonies (which are extremely rare) have to be +relegated to the Assizes at Launceston.</p> + +<p>The patriarchal system has always been much in evidence in the small +Scotch islands, which, for the most part, are the possessions of the +descendants of feudal chieftains. Dr. Johnson adverted to this fact on the +occasion of his famous journey in the North:—“Many of the smaller islands +have no legal officers within them.<span class="pagenum"><a name="Page_240" id="Page_240">[Pg 240]</a></span> I once asked, if a crime should be +committed, by what authority the offender could be seized, and was told +that the laird would exert his right; a right which he must now usurp, but +which merely necessity must vindicate, and which is therefore yet +exercised in lower degrees by some of the proprietors when legal process +cannot be obtained.” But after observing how the system operated, Dr. +Johnson freely admitted that when the lairds were men of knowledge and +virtue, the convenience of a domestic judicature was great. Owing to the +remoteness of some of the islands and the difficulty of gaining access to +others, it was scarcely possible to bring them under the common law, and +we find that in some instances the proprietors were allowed to act as +magistrates by the Lord-Lieutenant’s commission. Some of the old lairds +had a very effective but unjudicial method of enforcing their laws. Lord +Seaforth, High Chief of Kintail, was anxious to abolish a very odious +custom of woman-servitude which prevailed in the island of Lewis. The men +were wont to use the women as cattle, compelling them to draw boats like +horses, and, among other things, to carry men across the deep and +dangerous fords on their backs. This practice greatly disgusted<span class="pagenum"><a name="Page_241" id="Page_241">[Pg 241]</a></span> Lord +Seaforth, who found, however, that it was one particularly hard to check. +He arrived one day on horseback at a stream which a peasant was +contentedly crossing, mounted on a woman’s shoulders. When the middle of +the stream was reached, the laird urged his horse forward, and came up +with the couple, when by vigorously laying his whip about the back of the +man, he compelled him to dismount, and wade as best he could to the +opposite bank. This practical indication of the laird’s wishes aided +considerably in producing a change.</p> + +<p>The Scotch islanders are a law-abiding people, and patriarchal government +sufficed. It was recorded of the inhabitants of Skye that, during a period +of unusual distress and semi-starvation, not a single sheep was stolen. So +keen is the sense of propriety in that island that a whole family has been +known to slink away, unable to bear the disgrace brought upon them by an +individual delinquent. Orkney and Shetland once possessed all the +characteristics of a separate kingdom, the laws of no other countries +being imposed upon them. There was none to dispute the laird’s right, and +legal administration was entirely in his hands, except for the period that +the islands<span class="pagenum"><a name="Page_242" id="Page_242">[Pg 242]</a></span> were placed under episcopal rule. It is worth noting that the +most famous of the governing bishops, Robert Reid (<i>tempus</i> 1540), also +filled the high office of President of the Court of Session at Edinburgh, +and he and his successors are said to have ruled with conspicuous mildness +and equity.</p> + +<p>We may now turn to one or two English islands before devoting attention to +the most important examples of all—those supplied by the Isle of Man and +the Channel Islands. The Isle of Wight is only regarded as “separate” from +Hampshire for one legal purpose, so far as I have been able to ascertain. +It is part of the “county of Southampton” for all purposes except the +land-tax payment: for this it has a separate liability. But the land-tax +divisions are the most irregular, and the least uniform of any legal +divisions in the country, and it is therefore not surprising that the Isle +of Wight should in this respect be subject to peculiar usage. Purbeck is +one of those “isles” in England which now depend more upon tradition for +their designation, than natural accordance with the geographical +definition. What is remarkable is that these “isles”—such as the Isle of +Purbeck, the Isle of<span class="pagenum"><a name="Page_243" id="Page_243">[Pg 243]</a></span> Ely, the Isle of Glastonbury, and the Isle of +Meare—nearly all have certain well-established and recognised laws of +their own for the little communities which dwell within their borders. The +quarrymen of Purbeck consider themselves a race apart, and their guild is +one of the closest and strictest character. Their homage is paid +exclusively to the lord of the manor, and the “Marblers” claim to have +received a special charter from King Edward. On Shrove Tuesday they elect +their officers, and celebrate the occasion by kicking a football round the +boundaries. One ancient custom observed on these occasions is to carry a +pound of pepper to the lord of the manor, as an acknowledgement to him in +respect to a “right of way.” Until comparatively recent times the +government of the island was patriarchal in character. The Isle of +Glastonbury had its “House of Twelve Hides” for the trial of petty cases +in the locality, and tradition reports that unusually large dungeons were +prepared for the immuring of those who offended in the renowned Avalonian +isle.</p> + +<p>The Isle of Man, when subject to the Kings of Norway, was a subordinate +feudatory kingdom. It afterwards came under the dominion of the<span class="pagenum"><a name="Page_244" id="Page_244">[Pg 244]</a></span> English +Kings, John and Henry III., but passed afterwards to the Scotch. Henry IV. +eventually claimed the little isle, and disposed of it to the Earl of +Northumberland, but upon this famous nobleman’s attainder it went to Sir +John de Stanley. Its government seemed destined to be unsettled, however, +and though the title of king was renounced by the possessors of the land, +they maintained supreme and sovereign authority as to legal process. In +the Isle of Man no English writ could be served, and as a result it became +infested with smugglers and outlaws. This was unsatisfactory, and, in +1765, the interest of the proprietor was purchased, in order that the +island should be subject to the regulations of the British excise and +customs.</p> + +<p>According to Blackstone, than whom there could be no greater authority, +the Isle of Man is “a distinct territory from England, and is not governed +by our laws; neither doth an Act of Parliament extend to it unless it be +particularly named therein.” It is consequently a convenient refuge for +debtors and outlaws, while its own roundabout and antiquated methods of +procedure have been found to favour the criminal rather than to aid +prosecutors and complainants. <span class="pagenum"><a name="Page_245" id="Page_245">[Pg 245]</a></span>Perhaps this was never more vividly +illustrated than in the recent case of the murderer Cooper, who profited +by the cumbrous and lenient processes of Manx law to the extent of getting +an atrocious crime reduced to manslaughter. The laws have often been +amended. Prior to 1417 they were “locked up in the breasts of the +Deemsters,” but Sir John Stanley found that so much injustice was being +done under the pretence of law, that he ordered a promulgation to be made. +But “breast laws” continued to be administered for another two centuries, +until Lord Strange, in 1636, commanded that the Deemsters should “set down +in writing, and certify what these breast laws are.” In 1777, and also in +1813, the laws of the island were again amended, and every criminal was +allowed three separate and distinct trials before different bodies. First +the High Bailiff hears his case, then the Deemster and six jurymen, and, +thirdly, if he has been committed for trial, he is brought before the +Governor and the Deemsters. By the time the case gets to the final court +it has usually been “whittled down” to the smallest possible proportions, +and doubts have often been raised whether justice is not marred by +misplaced and unwarranted lenity. Another strange <span class="pagenum"><a name="Page_246" id="Page_246">[Pg 246]</a></span>practice is that the +Manx advocates combine the parts of barrister and attorney. The law is +hard upon debtors, who can be lodged as prisoners in Castle Rushen, if it +is suspected that they are about to leave the island; but there are no +County Courts. On the other hand, there are Courts of Law of almost +bewildering variety—the Chancery Court, the Admiralty, the General Gaol +Delivery, the Exchequer, the Ecclesiastical, the Common Law, the two +Deemsters’ Courts for the north and south of the island, the Seneschal’s +Court, the Consistorial, the Licensing, and the High Bailiff’s. Each +sheading, or subdivision, has its own coroner or sheriff, who can appoint +a “lockman” as his deputy; and each parish (there are seventeen) has its +own captain and a “sumner,” whose duty in old times was to keep order in +church and “beat all the doggs.” Manx law had, and perhaps to some extent +still has, a similar reputation either for allowing criminals in the +island to escape easily, or for permitting English criminals to remain +unpunished; hence the old ribald verse which represents the Devil +singing—</p> + +<p class="poem">“That little spot I cannot spare,<br /> +For all my choicest friends are there.”</p> + +<p>The Deemster’s oath is a curiosity in itself:—“I<span class="pagenum"><a name="Page_247" id="Page_247">[Pg 247]</a></span> do swear that I will +execute the laws of the isle justly betwixt party and party as +indifferently as the herring’s backbone doth lie in the midst of the +fish.” Formerly the elective House of Keys possessed judicial as well as +legislative functions, but this power was taken from it by the Act of +1866. Laws are initiated in the Council and the Tynwald Court, which +promulgates them, consists of the members of the Council, and the House of +Keys, who unite for the occasion. Tynwald Day as described by Mr. Hall +Caine is an interesting, historic, but not an impressive ceremony. A +thousand years ago the Norsemen established a form of government on the +island, and every fifth of July the Manxman has his open-air Parliament +for the promulgation of laws. But it is a gala day rather than a day of +business. “Reluctantly I admit,” writes Mr. Hall Caine, “that the +proceedings were, in themselves, long, tiresome, ineffectual, formless, +unimpressive, and unpicturesque. The senior Deemster, the amiable and +venerable Sir Wm. Drinkwater, read the titles of the new laws in English. +Then the coroner of the premier sheading, Glenfaba, recited the same +titles in Manx. Hardly anybody heard them; hardly anybody listened.”</p> + +<p><span class="pagenum"><a name="Page_248" id="Page_248">[Pg 248]</a></span>The Channel Islands were part of the Duchy of Normandy, and their laws are +mostly the ducal customs as set forth in an ancient book known as “Le +Grand Coustumier.” Acts of the English Parliament do not apply to these +Islands unless specifically mentioned, and all causes are determined by +their own courts and officers. In Mr. Ansted’s standard work on the +Channel Islands (revised and edited by E. Toulmin Nicolle, 1893), a long +chapter is devoted to the whole subject, and it is so complete and well +expressed that I venture without much alteration of phraseology to +summarise its leading points. Jersey and Guernsey have diverged greatly +from each other in their legal customs, and it is also curious to find +that each of the smaller islands possesses its own particular +constitutions and courts. The rights and customs of the “States,” which +are an outcome of the mediæval Royal Court, have constantly undergone +modification and have been remodelled, but they retain many of the ancient +characteristics. The Bailiff (<i>Bailli</i>), or chief magistrate, is the first +civil officer in each island, and usually retains his office for life. He +presides at the Royal Court, takes the opinions of the elected Jurats, and +when their voices are equal<span class="pagenum"><a name="Page_249" id="Page_249">[Pg 249]</a></span> has a casting vote both in civil and criminal +cases. The Bailiff is not required either in Jersey or Guernsey to have +had a legal education. He is appointed by the Crown, but has usually held +some position at the island bar. Formerly the advocates practising in the +court of Jersey were nominated by the Bailiff, and were limited to six in +number. In 1860, however, the bar was thrown open to every British subject +who had been ten years resident in the island, and who was qualified by +reason of being a member of the English bar, having taken a law degree at +a French University, and having passed an examination in the island. In +Guernsey the advocates are also notaries, and frequently hold agencies. +The judicial and legislative powers in Jersey are to some extent separate, +but in Guernsey they are intimately associated—a fact which accounts for +much of the difference in custom in the two islands.</p> + +<p>The ancient Norman law contained in “Le Grand Coustumier” dates back to +the thirteenth century, was badly revised in the time of Queen Elizabeth, +and became the Code. Trial by jury was established in 1786, and the laws +on the subject have undergone considerable change. There is a committing +magistrate, and the trial takes place<span class="pagenum"><a name="Page_250" id="Page_250">[Pg 250]</a></span> at the Criminal Assizes of which +there are six in the year. The jury numbers twenty-four; if twenty agree, +the verdict is taken; if less than twenty the prisoner is set free. Minor +offences are referred to a court of Correctional Police presided over by a +magistrate who is independent of the Royal Court. The same magistrate +presides over the court for the recovery of small debts, and there is no +appeal from his decision. Then there are subsidiary courts for various +police purposes, while the Court of Héritage entertains suits regarding +real estate. The arbitrary operation of these Courts may have very evil +results, especially for strangers who are unlearned in the peculiarities +of Jersey law. I find a striking example of this in a magazine of June +15th, 1861, in which a hard experience is detailed with comments which +appear to be fully justified by the circumstances. The writer says:—</p> + +<p>“Before leaving England I had had a serious quarrel with a former friend +and medical attendant, and no long time elapsed after our arrival in the +island, before this gentleman sent me in a bill of monstrous +proportions—a true ‘compte d’apothecaire’ as the French express it. At +that time I was quite ignorant of the singular <span class="pagenum"><a name="Page_251" id="Page_251">[Pg 251]</a></span>constitution of Jersey +law, and how it placed me in the power of any man who chose to sue me +whether I owed him money or not. I wrote to the doctor, refusing to pay +the full amount of his claim, and referring him to a solicitor in London. +He was, however, better acquainted with the Jersey law than myself, as the +result will show. Here, before proceeding with my story, I will enter into +some explanation of the law of debtor and creditor as it exists in Jersey. +This law enables the creditor to enforce his demands summarily, depriving +the party sued of his liberty, and leaving him in gaol till the costs of +his imprisonment have swelled the amount to be paid: and further, +supposing the defendant ultimately gains his suit, and proves his +non-liability, no damages for false imprisonment are obtainable. The law +leaves him no remedy, for the plaintiff makes no affidavit; and a simple +letter from England, requesting a Jersey advocate to enforce payment of a +claim, is enough to cast the defendant at once into prison, prior to any +judicial investigation into the merits of his case.</p> + +<p>“Thus, in Jersey, every man (unless he be a landed proprietor) is at the +mercy of every other man, both in the island and out of it. In short,<span class="pagenum"><a name="Page_252" id="Page_252">[Pg 252]</a></span> one +man can arrest another simply by drawing up an imaginary account on a +common bit of paper, and handing it to the nearest lawyer, who will send +his clerk with the sheriff’s man and imprison the unfortunate victim in +default of immediate payment. What is worse still, an arrest can be +carried into effect, by means of a simple letter sent through the post. +The exception in favour of land-owners of course includes the owners of +house property, an exception which mostly benefits Jersey-men, as few but +natives possess property in the island. It is only a proprietor who must +be sued <i>before</i> he can be imprisoned. If the Jersey laws confined the +persons merely of strangers sued by the inhabitants of the island, in the +arbitrary manner described, the justice of such a practice might still be +defended on the plea of preventing them from leaving the island; but no +excuse can be found when the Jersey law is made an instrument in the hands +of strangers, living out of the jurisdiction of the island, and when it is +used to enforce payment of debts incurred in another place, and in which +no inhabitant of the island is interested, and when (as sometimes happens) +it is employed as a means of extortion. In the first case it can be urged +that,<span class="pagenum"><a name="Page_253" id="Page_253">[Pg 253]</a></span> at least, it gives protection to the islander, which may be all +proper enough, though the system is liable to abuse. In the second, the +injustice and folly of the law is flagrant. By what right or reason ought +the Jersey code, without previous inquiry, to deprive one man of his +liberty at the demand of another, when both are strangers, and when the +dispute relates to matters wholly beyond its pale, and in reference to +which it has no means of obtaining information on oath? Yet such is the +case, and thus the Jersey law is converted into a mere tool of iniquity +and oppression. In speaking of this strange anomaly in Jersey law, I am +not referring to bills of exchange, or to securities of any sort, but +merely to simple debts, free from any acknowledgment or signature +whatever. In any other Court, such claims would not be entertained for a +moment. Surely the law is barbarous enough for the people of Jersey, +without its consequences being extended beyond its circumference. But, as +matters stand at present, the case stands thus: A and B fall out together. +Now B is a rogue. They go to law together, and B demands of A more than he +is entitled to. The courts in England are about to decide upon the merits +of the case. Meanwhile<span class="pagenum"><a name="Page_254" id="Page_254">[Pg 254]</a></span> B learns that A is gone to Jersey for a short time +on business, perhaps connected with this very affair, such, for instance, +as looking up an important witness. What does B do? He immediately sends +off a letter enclosing his little account to a Jersey lawyer, instructing +him to demand payment or lock up A forthwith. The lawyer obeys, of course; +A storms—protests—all in vain. He is incarcerated, and is told he may +explain as much as he likes afterwards; but, in the meantime, must go to +prison, or <i>pay</i>. At last poor A, whose liberty is important to him, +wearied with the delays which it is the interest of the Jersey lawyers to +raise in his suit for judgment, pays the demand into court (au greffe) to +be adjudicated on—costs of law, costs of imprisonment and all. The latter +item includes 10s. every time the prison door is opened to let him pass on +his way to court—a journey he has too often to perform without much +approach to a <i>dénoûment</i>, and whither he is obliged to go under escort +like a criminal; and this process is repeated several times, without the +cause even being called on for hearing. Worst of all, when A comes out, he +has to decide upon the merits of the case. Meanwhile no remedy against B, +who, of course, being satisfied, withdraws his suit at home.”</p> + +<p><span class="pagenum"><a name="Page_255" id="Page_255">[Pg 255]</a></span>Another seeming anomalous process may be cited. An appeal lies from some +of the small Courts to the full Court, or <i>Nombre Supérieur</i>, but the +jurats who sit in the Court of First Instance are not debarred from +sitting in the Full Court when an appeal from their own judgment is being +heard! All the proceedings are carried on in the French language, which is +again extremely inconvenient for the English residents. The Bailiff +comments on the evidence and on the arguments of the pleaders, collects +the opinion of the jurats, and delivers judgment. In Guernsey the +decisions are given in private. “Pleadings in these courts are very +simple,” says Mr. Ansted. “The plaintiff must serve on the defendant a +summons or declaration, setting forth the nature of his claim, and in some +cases the reasons on which it is grounded are added. If not sufficiently +definite the declaration is sent back by the Court for amendment. If the +defendant means to plead any objections by way of demurrer or special +plea, these are at once heard and disposed of. If the parties join issue +on the merits of the case, the Court hears the parties, or their counsel, +and decides. If the case be intricate the parties are sometimes sent +before the Greffier—in Guernsey<span class="pagenum"><a name="Page_256" id="Page_256">[Pg 256]</a></span> before one of the jurats,—who reports, +condensing the matter in dispute, and presenting the points to the court +for decision.” Trial by jury does not exist in Guernsey. The court at +Alderney is subordinate to that of Guernsey. The jurisdiction in matters +of correctional police is final where the offence can be punished by a +month’s imprisonment or a fine not exceeding £5; otherwise it is referred +to Guernsey for trial. The Court of Sark, which has undergone many strange +vicissitudes since its institution in 1579, consists of the seneschal, or +judge, the prévôt and the greffier, all appointed by the feudal lord, or +seigneur. The seneschal is an absolute authority in small cases, but his +right of punishment is limited to the narrow bounds of inflicting a fine +of about four shillings, and of sentencing to three days’ imprisonment. +All cases demanding severer treatment are relegated to the Guernsey +Courts. Enough has been said to show that Mr. Ansted was justified in +declaring that though the islanders were unfitted by their habits and +education for any radical change in their peculiar institutions, yet “the +practice of the law courts both in Jersey and Guernsey has long been felt +to be in many cases cumbrous, not to say objectionable. Indeed, where so +much<span class="pagenum"><a name="Page_257" id="Page_257">[Pg 257]</a></span> that is personal interferes in the administration of justice, and +where personal and family influence cannot but be felt, it is not +astonishing that reasonable complaints are sometimes heard.” Three times +during the present century Royal Commissions have enquired into Jersey +law, but their recommendations have been systematically ignored. No +remedies have been carried out, and the islanders cling with extraordinary +pertinacity to customs which are notoriously abused and to priveleges +which are opposed to fair-dealing. The Channel Islands and the Isle of Man +are standing evidence of the danger incurred by such independence of legal +authority as they have hitherto been permitted to enjoy.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_258" id="Page_258">[Pg 258]</a></span></p> +<h2>The Little Inns of Court.</h2> + +<p> </p> +<p class="dropcap"><span class="caps">The</span> origin of the decadent institutions located in certain grim and +dreary-looking piles of building dotting the district of the Inns of Court +proper, and known as the little Inns of Court, is involved in considerable +obscurity. They appear to have originally held a similar position to the +great seats of legal education as the halls of Oxford and Cambridge do to +the Universities. But at the present time their relation to the Inns of +Court proper is not very clear, and the uses they serve, otherwise than as +residential chambers, are just as hard to discover. This state of +mistiness concerning them has existed so long that no one now seems to +know anything about them, and the evidence taken more than forty years ago +by a Royal Commission did so little to clear away the dust and cobwebs +hanging about them that they still remain, in the words of Lord Dundreary, +“things that no fellow can understand.”</p> + +<p>Lyon’s Inn has since that time been swept<span class="pagenum"><a name="Page_259" id="Page_259">[Pg 259]</a></span> away to make room for the new +Courts of Law, without any person evincing the smallest interest in its +fate. Concerning this institution all that could be learned by the Royal +Commission was contained in the evidence of Timothy Tyrrell, who +“believed” that it consisted of members or “ancients,” he could not say +which; he believed the terms were synonymous. There were then only himself +and one other, and within his recollection there had never been more than +five, and they had nothing to do beyond receiving the rents of the +chambers. There were no students, and the only payment made on account of +legal instruction was a sum of £7 13s. 4d. paid to the society of the +Inner Temple for a reader; but there had been no reader since 1832. He had +heard his father say that the reader “burlesqued the things so greatly” +that the ancients were disgusted, and would not have another. There was a +hall, but it was used only by a debating society; and there was a kitchen +attached to it, but he had never heard of a library.</p> + +<p>New Inn appears to have been somewhat more alive than Lyon’s, though it +does not seem to have done any more to advance the cause of legal +education. The property is held under the<span class="pagenum"><a name="Page_260" id="Page_260">[Pg 260]</a></span> society of the Middle Temple, +by a lease of three hundred years from 1744, at a rent of four pounds a +year. Among the stipulations of the lease is one allowing the lessors to +hold lectures in the hall, but none had been held since 1846, in +consequence, it was believed, of the Middle Temple ceasing to send a +reader. The lectures never numbered more than five or six in a year; and +there is now no provision of any kind for legal education. Samuel Brown +Jackson, who represented the inn before the Royal Commission, said he knew +nothing concerning any ancient deeds or documents that would throw any +light on the original constitution and functions of the body. If any there +were, he “supposed” they were in the custody of the treasurer. The only +source of income was the rents of chambers, which then amounted to between +eighteen and nineteen hundred pounds a year; and the ancients have no +duties beyond the administration of the funds.</p> + +<p>Concerning the origin of Clement’s Inn, Thomas Gregory, the steward of the +society, was unable to afford full information, but he had seen papers +dating back to 1677, when there was a conveyance by Lord Clare to one +Killett,<span class="pagenum"><a name="Page_261" id="Page_261">[Pg 261]</a></span> followed by a Chancery suit between the latter and the principal +and ancients of the society, which resulted in a decree under which the +property so conveyed became vested in the inn. Some of the papers relating +to the inn had been lost by fire, and “some of them,” said the witness, +“we can’t read.” The inn, he believed, was formerly a monastery, and took +its name from St. Clement. It had once been in connection with the Inner +Temple, but he could find no papers showing what were the relations +between the two societies, “except,” he added, “that a reader comes once a +term, but that was dropped for twenty years—I think till about two or +three years ago, and then we applied to them ourselves, and they knew +nothing at all about it; the under-treasurer said he did not know anything +about the reader, and had forgotten all about it.” It was the custom for +the Inner Temple to submit three names to the ancients; and, said the +witness, “we chose one; but then they said that the gentleman was out of +town, or away, and that there was no time to appoint another.” But no +great loss seems to have resulted thereby to the cause of legal education, +for it appears that all a reader had ever done was to explain some recent<span class="pagenum"><a name="Page_262" id="Page_262">[Pg 262]</a></span> +Act of Parliament to the ancients and commoners, there being no students. + +The inn had no library and no chapel, but as a substitute for the latter +had three pews in the neighbouring church of St. Clement, and also a +vault, in which, said the witness, “the principals or ancients may be +buried if they wish it.”</p> + +<p>Some remarkable evidence was given concerning Staples Inn, and the more +remarkable for being given by Edward Rowland Pickering, the author of a +book on the subject, which publication one of the Commissioners had before +him while the witness was under examination. “You state here,” said the +Commissioner, “that in the reign of Henry V., or before, the society +probably became an Inn of Chancery, and that it is a society still +possessing the manuscripts of its orders and constitutions.” “I am +afraid,” replied the witness, “that the manuscript is lost. The principal +has a set of chambers which were burnt down, and his servant and two +children were burnt to death, seventy years ago; and I rather think that +these manuscripts might be lost.” Where the learned historian of the inn +had obtained the materials for that work is a question which he does not +appear to have been in a<span class="pagenum"><a name="Page_263" id="Page_263">[Pg 263]</a></span> position to answer; for when asked whether he +knew of any trace of a connection between the society and an Inn of Court, +he replied, “Certainly, I should say not. It is sixty years since I was +there, boy and all.” A very strange answer considering the statement in +his book. During the sixty years he had been connected or acquainted with +the society, he had never heard of the existence of a reader, or of any +association of the inn with legal education or legal pursuits. The only +connection claimed for the inn by the principal, Andrew Snape Thorndike, +was that, when a serjeant was called from Gray’s Inn, that society invited +the members of Staples Inn to breakfast. There is a singular provision +respecting the tenure of chambers in this inn by the ancients. “A person,” +said this witness, “holds them for his own life, and though he may be +seventy years of age, if he can come into the hall, he may surrender them +to a very young man, and if that young man should live he may surrender +them again at the same age.” If a surrender is not made, the chambers +revert to the society.</p> + +<p>Barnard’s Inn is a very old one, and the property has been held on lease +from the dean<span class="pagenum"><a name="Page_264" id="Page_264">[Pg 264]</a></span> and chapter of Lincoln for more than three hundred years. +The society consists of a principal, nine ancients, and five companions, +which latter are chosen by the ancients; but we fail to gather from the +evidence of Charles Edward Hunt, treasurer and secretary of the inn, by +what principles the ancients are guided in the selection. We learn, +however, that applications for admission by solicitors are not allowed. +Such a thing had occurred once, but it was as long ago as 1827, and “of +course,” said the witness, “we refused him, and he applied to the court, +and after some difficulty he got a rule <i>nisi</i> for a mandamus. It came on +to be tried before Lord Tenterden, and Lord Tenterden said it could not be +granted; that we were a voluntary association, and the court had no +jurisdiction.” The applicant seems to have based his claim on the ground +that Barnard’s was an Inn of Chancery, and that, as a solicitor, he had a +right to be admitted. The matter was scarcely worth contention, as the +privileges of the companions are confined to dining in hall and the chance +of being made an ancient, that favoured grade being entitled to “their +dinners and some little fees.” The books of the society showed no trace of +there ever<span class="pagenum"><a name="Page_265" id="Page_265">[Pg 265]</a></span> having been any students of law connected with the inn. “The +oldest thing I find,” said the witness, “is that a reader came +occasionally from Gray’s Inn to read; but what he read about, or who paid +him, there is no minute whatever.” He did not know when a reader last came +from Gray’s Inn; he thought it was about two hundred years ago. It only +remains to be told of Barnard’s Inn that it has not even a library; there +had been a few books at one time, the witness told the Commission, but +they were sold as useless!</p> + +<p>Concerning the remaining little inns—Clifford’s, Symond’s, and +Furnival’s—no evidence was taken. They appear to be merely residential +chambers, much the same as some of those concerning which we have +information in the report of the Royal Commission and the evidence given +before it, and the chambers are far from being used exclusively by members +of the legal profession. Nearly sixty years ago the present writer found a +retired army officer occupying chambers in Clifford’s, and on a later +occasion made at Symond’s Inn, the acquaintance of a curate who resided +there with his wife and a young family! Concerning Furnival’s Inn, it was +incidentally stated by<span class="pagenum"><a name="Page_266" id="Page_266">[Pg 266]</a></span> Michael Doyle, who represented Lincoln’s Inn +before the Royal Commission, that the latter society received £576 a year +under a lease of the former property granted to the late Henry Peto for +ninety-nine years, £500 being for rent, and the remainder in lieu of land +tax. The witness was, however, unable to give any information as to the +manner in which, or the date when, the property was acquired by Lincoln’s +Inn.</p> + +<p>The inquiry by the Royal Commission resulted in the recommendation of some +very important changes in the constitution of the little Inns of Court and +the administration of the several properties; but these, we learn, have +been modified so much in their adoption as to have been of very little +value. The societies have long outlived the purposes for which they were +instituted, though their principals and officials seem to attach +considerable importance to their continued existence. It is probable, +however, that their <i>raison d’étre</i> being gone, they will all sooner or +later go the way of Lyon’s Inn, and become things of the past.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_267" id="Page_267">[Pg 267]</a></span></p> +<h2>Obiter.</h2> +<p class="center"><span class="smcap">By George Neilson.</span></p> + +<p> </p> +<p class="dropcap"><span class="caps">The</span> claims of the legal profession to culture were cleverly belittled by +Burns, when he made the New Brig of Ayr wax sarcastic over the town +councillors of the burgh:—</p> + +<p class="poem">“Men wha grew wise priggin owre hops an’ raisins,<br /> +Or gathered lib’ral views in Bonds and Seisins.”</p> + +<p>Bonds and seisins are certainly not the happiest intellectual feeding +ground. “I assure you,” said John Riddell, a great peerage antiquary, +“that to spend one’s time in seeking for a name or a date in a bit of +crabbed old writing does not improve the reasoning powers.” Riddell was a +keen critic of Cosmo Innes, who subsequently had the happiness of passing +the comment upon Riddell’s observation that “perhaps it is not in +<i>reasoning</i> that Mr. Riddell excels.” Yet the annals of the law shew many +splendid examples of the union of close textual study of manuscript, with +an enlarged outlook on first principles and with keen critical insight. +Perhaps Madox was a more permanently serviceable scholar than Selden. One +can see<span class="pagenum"><a name="Page_268" id="Page_268">[Pg 268]</a></span> from Coke’s margins, his infinite superiority to Bacon in exact +knowledge at first hand of older English law. But when all is said, we +could have done much better without Coke and Madox than without Bacon or +Selden. It is delightful to be able to appeal to Chaucer for perhaps the +most emphatic compliment to law, in respect to its capacity for +literature, that it has ever received. Amongst all the Canterbury +pilgrims, there was no weightier personage than the Man of Law:—</p> + +<p class="poem">“Nowher so bisy a man as he ther nas,<br /> +And yet he semed bisier than he was.<br /> +In termes hadde he caas and domes alle<br /> +That from the tyme of King William were falle,<br /> +Therto he coude endyte and make a thing<br /> +Ther could no wight pinche at his wryting,<br /> +And every statut coude he pleyn by rote.”</p> + +<p>Yet it was this learned and successful counsel, alone of the party, who +knew the poet’s works through and through, and had the list of them at his +finger-ends. Good Master Chaucer for this touch we offer hearty thanks! +Was it in Herrick’s mind when he penned his fine tribute to Selden?</p> + +<p class="poem">“I, who have favoured many, come to be<br /> +Graced, now at last, or glorified by thee.”</p> + +<hr style="width: 25%;" /> + +<p><span class="pagenum"><a name="Page_269" id="Page_269">[Pg 269]</a></span>Wits and poets have had many hard things to say in jest and in earnest +about the legal profession and its work. Herrick bracketed law and lawyers +with diseases and doctors, in a fashion hinting that the relation of cause +and effect existed between both pairs:—</p> + +<p class="poem">“As many laws and lawyers do express,<br /> +Nought but a kingdom’s ill-affectedness.<br /> +Even so those streets and houses do but show<br /> +Store of diseases where physicians flow.”</p> + +<hr style="width: 25%;" /> + +<p>It was an old story this linking of the practitioners of law and medicine +in one yoke of abuse. The reason given for both categories in early satire +is sufficiently curious. It was because they took fees! Walter Map +declared the Cistercian creed to be that no man could serve God without +mammon. Ancient satire equally objected to the service of man, either +legally or medically, under these conditions. “The Romaunt of the Rose” +has the traditional refrain of other strictures in verse, when it declares +that</p> + +<p class="poem">“Physiciens and advocates,<br /> +Gon right by the same yates,<span style="margin-left: 7.5em;"><i>yates, gates</i></span><br /> +They selle hir science for winning.<span style="margin-left: 4.75em;"><i>winning, gain</i></span><br /> +<span style="margin-left: 2em;"><span class="spacer">·</span><span class="spacer">·</span><span class="spacer">·</span><span class="spacer">·</span></span><br /> +For they nil in no maner gree<span style="margin-left: 4em;"><i>no kind of good will</i></span><br /> +Do right nought for charitee.”</p> + +<p><span class="pagenum"><a name="Page_270" id="Page_270">[Pg 270]</a></span>The same idea, precisely, finds voice in the poem attributed to Walter +Map, wherein the doctor and the lawyer come together under the lash, +because no hope can be based upon either of them unless there be money in +the case. “But if the marvellous man see coin, the very worst disease is +quite curable, the very falsest cause just, praiseworthy, pious, true, and +pleasing to God.” Perhaps these ancient sarcasms were keener on the leech +than the lawyer. “The Romaunt of the Rose” goes so far as to say that if +the physicians had their way of it,</p> + +<p class="poem">“Everiche man shulde be seke,<br /> +And though they dye, they set not a leke<br /> +After: whan they the gold have take<br /> +Ful litel care for hem they make.<br /> +They wolde that fourty were seke at onis!<br /> +Ye, two hundred in flesh and bonis!<br /> +And yit two thousand as I gesse<br /> +For to encresen her richesse.”</p> + +<hr style="width: 25%;" /> + +<p>No doubt the men of medicine would have been much more vulnerable on +another line, for it was no satirist but a learned medical professor, +Arnauld de Villeneuve, who, in the beginning of the fourteenth century, +advised his students as follows:—“The seventh precaution,” said he, “is +of a general application. Suppose that you<span class="pagenum"><a name="Page_271" id="Page_271">[Pg 271]</a></span> cannot understand the case of +your patient, say to him with assurance that he hath an obstruction of the +liver.” No legal professor surely was ever guilty of the indiscretion of +<i>saying</i> such a thing as this!</p> + +<hr style="width: 25%;" /> + +<p>The ineradicable public prejudice against legal charges as flagrantly +exorbitant is only a modified form of an older idea exemplified above that +lawyers should have no fees at all. And as to this day the plain man has +never fully reconciled himself to the doctrine that the lawyer is only an +agent, and not called upon to sit in the first instance in judgment on his +client, so in the past the professional defence of a criminal appeared a +very venal transaction.</p> + +<p class="poem">“Thow I have a man i-slawe,<br /> +And forfetyd the kynges lawe<br /> +I sal fyndyn a man of lawe<br /> +Wyl takyn myn peny and let me goo.”</p> + +<hr style="width: 25%;" /> + +<p>How reprehensible a thing to take fees was long reckoned admits of curious +illustration. “Before the end of the thirteenth century,” says that +never-failing authority, Pollock and Maitland’s “History of English Law,” +“there already exists a legal profession, a class of men who make<span class="pagenum"><a name="Page_272" id="Page_272">[Pg 272]</a></span> money by +representing litigants before the courts and by giving legal advice. The +evolution of this class has been slow, for it has been withstood by +certain ancient principles.” Amongst these retarding influences lay the +half-religious scruple about the propriety of payment—men as usual +swallowing the camel first and straining at the gnat afterwards. Of course +the subject had to be illuminated by monkish tales and death-bed +repentances. There was, according to the Carlisle friar who penned the +“The Chronicle of Lanercost,”—writing under the year 1288,—a young clerk +in the diocese of Glasgow, whose mind “was given rather to the court of +the rich than to the cure of souls. He was called Adam Urri, and was +laically learned in the laic laws, disregarding the commands of God +against the Praecorialia [so in the printed text, but, query, +Praetorialia?] of Ulpian. He used the statutes of the Emperor in +litigating causes, for payment of money. But when he had grown old and +famous in this his wickedness, and was striving by his astuteness to +entangle the affairs of a poor little widow, the divine mercy laid hold on +him, assailing his body with sudden infirmity, and bringing his mind to +plead (<i>enarraret</i>) more for<span class="pagenum"><a name="Page_273" id="Page_273">[Pg 273]</a></span> another life.” Condemning utterly the +lawyer’s court, he turned over a new leaf, predicted the day of his own +death, and died punctually conform to the prophecy, leaving an example +unctuously used by the friar to teach future generations “how wide was the +gulf betwixt the service of God and the vanity of this world.” We shall +not be far wrong in regarding, as of more historic interest, the +indication of the immorality of fees, and the important reference to +Ulpian as an authority in the <i>forum causidicorum</i> of thirteenth century +Scotland.</p> + +<hr style="width: 25%;" /> + +<p>Amongst the amiable conceptions of the middle age was the notion that the +Evil One often manifested a particular zeal against sin. He was regarded +with a different eye from that with which we regard him, and he rewarded +faith with actual appearances such as only spiritualists can now-a-days +command. Some of them were not very engaging, however praiseworthy may +have been their object and occasion. Simeon of Durham, an eminently +respectable contemporary author, wrote of the death of King William Rufus +in the year 1100 that the popular voice considered the wandering flight of +Tyrell’s arrow a token of<span class="pagenum"><a name="Page_274" id="Page_274">[Pg 274]</a></span> the “virtue and vengeance of God.” And he added +that about that time the Devil had frequently shewn himself in the woods +“and no wonder, because in those days law and justice were all but +silent.” The logic of this <i>because</i>, not apparent on the surface, becomes +less obscure when it is remembered that in the mediæval devil the +character of Arch-Enemy is so much subordinated to that of Arch-Avenger.</p> + +<hr style="width: 25%;" /> + +<p>The direct relation of not only the Saints but of the Deity itself to +human affairs was a conception so clear to the mediæval mind that it saw +nothing irreverent in a title deed being taken in the Supreme name, or in +marshalling “<i>Deus Omnipotens</i>” at the head of the list of witnesses to a +charter. This anthropomorphic practice gave occasion to one of the +sharpest of Walter Map’s jokes against the Cistercians. Three abbots of +that order petitioning on behalf of one of their number and his abbey for +the restoration of certain lands by King Henry II. as having been +injuriously taken away from the claimant’s abbey, represented to the King +in his court that for God’s sake he ought to cause the lands to be +restored and they assured<span class="pagenum"><a name="Page_275" id="Page_275">[Pg 275]</a></span> him and gave him God himself as their guarantor +(<i>fidejussorem</i>) that if he did, God would greatly increase his honour +upon earth. King Henry found it difficult to resist the appeal thus made +to him but called the Archdeacon Walter Map to advise. This he did +well-knowing that this counsellor did not love the Cistercians, and that +he might thus find a creditable way out of a tight corner. The Archdeacon +was equal to the occasion. “My lord,” said he to the King, “they offer you +a guarantor; you should hear their guarantor speak for himself.” “By the +eyes of God,” replied Henry, “it is just and conform to reason that +guarantors themselves should be heard upon the matter of their guarantee.” +Then rising with a gentle smile (not a grin, expressly says Giraldus +Cambrensis) the shrewd monarch retired leaving the disappointed abbots +covered with confusion.</p> + +<hr style="width: 25%;" /> + +<p>Of the many ties between literature and law, one, not by any means the +least interesting on the list, is the quantity of legal citations, +phrases, metaphors and analogies which got swept into the wide nets of the +poets. Amongst such scraps there are few so successful and still fewer so +pathetic as one in which a metrical historian,<span class="pagenum"><a name="Page_276" id="Page_276">[Pg 276]</a></span> drawing near the close, +both of his days and his chronicle, figured himself as summoned on short +<i>induciæ</i> at the instance of Old Age to appear at a court to answer +serious charges, where no help was for him save through grace and the +Virgin as his advocate.</p> + +<p class="poem">Elde me maistreis wyth hir brevis,<span style="margin-left: 9.3em;"><i>elde, age</i></span><br /> +Ilke day me sare aggrevis,<span style="margin-left: 11em;"><i>brevis, writ</i></span><br /> +Scho has me maid monitioune<span style="margin-left: 10.3em;"><i>ilke, each</i></span><br /> +To se for a conclusioune<span style="margin-left: 10.75em;"><i>quhilk, which</i></span><br /> +The quhilk behovis to be of det;<span style="margin-left: 7.5em;"><i>of det, of right</i></span><br /> +Quhat term of tyme of that be set<br /> +I can wyt it be na way,<span style="margin-left: 12.75em;"><i>wyt, know</i></span><br /> +Bot weill I wate on schort delay<br /> +At a court I mon appeire<br /> +Fell accusationis thare til here<br /> +Quhare na help thare is bot grace.<span style="margin-left: 7.6em;"><i>bot, without</i></span><br /> +The maikless Madyn mon purchace<span style="margin-left: 4em;"><i>maikless, matchless</i></span><br /> +That help; and to sauff my state<span style="margin-left: 6.25em;"><i>purchace, procure</i></span><br /> +I haiff maid hir my advocate.<span style="margin-left: 10em;"><i>sauff, save</i></span></p> + +<p>Androw of Wyntoun’s verse it must be owned was verse on the plane of a +notary public, and oft the common form of legal writ supplied sorrily +enough the deficiencies of his imagination. But here for once the simple +dignity of the thought bore him up and carried him through.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_277" id="Page_277">[Pg 277]</a></span></p> +<h2>Index.</h2> + + +<p class="index"> +Aberdeen, gipsies at, <a href="#Page_175">175</a><br /> +<br /> +Abjuring the realm, <a href="#Page_15">15</a><br /> +<br /> +Abjuration, <a href="#Page_69">69</a><br /> +<br /> +Abolishing right of Sanctuary, <a href="#Page_16">16</a><br /> +<br /> +Adultery, penalty of, <a href="#Page_11">11</a><br /> +<br /> +Africa, ordeal in, <a href="#Page_24">24-25</a><br /> +<br /> +Amphitheatre, sports of, <a href="#Page_112">112</a><br /> +<br /> +An eye for an eye, <a href="#Page_137">137</a><br /> +<br /> +Ancient tenures, <a href="#Page_93">93-108</a><br /> +<br /> +Andrews, William, Cock-Fighting, <a href="#Page_196">196-200</a><br /> +<br /> +Anglo-Saxon Church, <a href="#Page_14">14</a><br /> +<br /> +Aram, Eugene, <a href="#Page_212">212</a><br /> +<br /> +Ashford, Mary, <a href="#Page_40">40-41</a><br /> +<br /> +Asyla in Greece, <a href="#Page_14">14</a><br /> +<br /> +Axon, W. E. A., Sanctuaries, <a href="#Page_13">13-22</a>;<br /> +<span style="margin-left: 1em;">Laws relating to the Gipsies, <a href="#Page_165">165-178</a></span><br /> +<br /> +<br /> +Babylonia, law of, <a href="#Page_3">3-4</a><br /> +<br /> +Balance, ordeal of, <a href="#Page_27">27</a><br /> +<br /> +Barbarous Punishments, <a href="#Page_132">132-148</a><br /> +<br /> +Barnard’s Inn, <a href="#Page_263">263</a><br /> +<br /> +Beetles, trial of, <a href="#Page_157">157</a><br /> +<br /> +Begbie, William, murder of, <a href="#Page_210">210</a><br /> +<br /> +Beverley, Sanctuary at, <a href="#Page_19">19-20</a><br /> +<br /> +Bible Law, <a href="#Page_1">1-12</a><br /> +<br /> +Bible, ordeal of the, <a href="#Page_37">37</a><br /> +<br /> +Bible, weighing against, <a href="#Page_27">27</a><br /> +<br /> +Bier, ordeal of, <a href="#Page_36">36</a><br /> +<br /> +Bird, Robert, Cockieleerie Law, <a href="#Page_200">200-204</a><br /> +<br /> +Biretta, <a href="#Page_53">53</a><br /> +<br /> +Black Book of Hereford, <a href="#Page_101">101</a><br /> +<br /> +Black Parliament, <a href="#Page_225">225</a><br /> +<br /> +Blood, laws written in, <a href="#Page_135">135</a>;<br /> +<span style="margin-left: 1em;">stains, <a href="#Page_222">222</a></span><br /> +<br /> +Boiling to death, <a href="#Page_135">135</a><br /> +<br /> +Book of Common Prayer, abolished, <a href="#Page_194">194</a><br /> +<br /> +Borough English, <a href="#Page_104">104-106</a><br /> +<br /> +Breaking straws, <a href="#Page_48">48</a>;<br /> +<span style="margin-left: 1em;">rods, <a href="#Page_49">49</a></span><br /> +<br /> +Buccleuch, Barons of, <a href="#Page_107">107</a><br /> +<br /> +Bull relating to English Sanctuaries, <a href="#Page_15">15</a><br /> +<br /> +Bull, trial of, <a href="#Page_150">150</a><br /> +<br /> +Burned alive, <a href="#Page_134">134</a><br /> +<br /> +Burgess, S., Bible Law, <a href="#Page_1">1-12</a><br /> +<br /> +<br /> +Canning, Elizabeth, <a href="#Page_172">172-173</a><br /> +<br /> +Canon Law, <a href="#Page_187">187</a>, <a href="#Page_225">225</a><br /> +<br /> +Castles, a centre of power, <a href="#Page_74">74</a><br /> +<br /> +Cattle stealing, <a href="#Page_74">74</a><br /> +<br /> +Channel Islands, Laws of the, <a href="#Page_242">242-243</a>, <a href="#Page_248">248-257</a><br /> +<br /> +Charges, prejudice against, <a href="#Page_271">271</a><br /> +<br /> +Charles I., Trial of, <a href="#Page_182">182</a><br /> +<br /> +Chaucer’s compliment to the law, <a href="#Page_268">268</a><br /> +<br /> +Cheltenham, Manor of, <a href="#Page_94">94</a><br /> +<br /> +Chemical test, <a href="#Page_220">220</a><br /> +<br /> +Christians, early punishment of, <a href="#Page_137">137</a><br /> +<br /> +Church and ordeals, <a href="#Page_29">29</a><br /> +<br /> +Clarke, Sidney W., Barbarous Punishments, <a href="#Page_132">132-144</a><br /> +<br /> +Clement’s Inn, <a href="#Page_260">260</a><br /> +<br /> +Cock-Fighting in Scotland, <a href="#Page_196">196-204</a><br /> +<br /> +Cockieleerie Law, <a href="#Page_200">200-204</a><br /> +<br /> +Cock, tried for laying an egg, <a href="#Page_154">154</a><br /> +<br /> +Commonwealth Law and Lawyers, <a href="#Page_178">178-196</a><br /> +<br /> +Continental Feudalism, <a href="#Page_77">77-82</a><br /> +<br /> +Conveyancing Symbols, <a href="#Page_50">50-51</a><br /> +<br /> +Copyhold, <a href="#Page_49">49</a>, <a href="#Page_83">83</a><br /> +<br /> +Corsnedd, ordeal of, <a href="#Page_35">35</a><br /> +<br /> +Commandments, breaking, <a href="#Page_3">3</a><br /> +<br /> +Cross, ordeal of the <a href="#Page_33">33</a><br /> +<br /> +Crown, <a href="#Page_56">56</a><br /> +<br /> +Coventry Acts, <a href="#Page_142">142-143</a><br /> +<br /> +Court Baron, <a href="#Page_84">84</a><br /> +<br /> +Customary Court, <a href="#Page_84">84</a><br /> +<br /> +Crucifixion, <a href="#Page_136">136</a><br /> +<br /> +<br /> +Dead bodies brought to place of judgment, <a href="#Page_232">232</a><br /> +<br /> +Debts, limitation of, <a href="#Page_9">9</a><br /> +<br /> +Declining knighthood, <a href="#Page_63">63-64</a><br /> +<span class="pagenum"><a name="Page_278" id="Page_278">[Pg 278]</a></span><br /> +Defilement, <a href="#Page_8">8</a><br /> +<br /> +Delivery of turf or twig, <a href="#Page_50">50</a><br /> +<br /> +Deposition of kings, <a href="#Page_56">56</a><br /> +<br /> +Devices of the Sixteenth Century Debtors, <a href="#Page_161">161-164</a><br /> +<br /> +Divine right of kings, <a href="#Page_193">193</a><br /> +<br /> +Dog carrying, <a href="#Page_140">140</a><br /> +<br /> +Dogs in recognition of tenure, <a href="#Page_101">101</a><br /> +<br /> +Dream evidence, <a href="#Page_214">214-217</a><br /> +<br /> +Dudley lands, <a href="#Page_64">64</a><br /> +<br /> +Durham Sanctuary, <a href="#Page_17">17</a>, <a href="#Page_19">19</a><br /> +<br /> +<br /> +Escheats, <a href="#Page_226">226</a><br /> +<br /> +Emma, Queen, tried by ordeal, <a href="#Page_30">30</a><br /> +<br /> +Englishry, law of, <a href="#Page_70">70</a><br /> +<br /> +Executing gipsies, <a href="#Page_167">167</a>, <a href="#Page_170">170</a><br /> +<br /> +<br /> +Failure to extripate gipsies from England, <a href="#Page_170">170</a><br /> +<br /> +Fatal Links, <a href="#Page_205">205-223</a><br /> +<br /> +Father, powers of, <a href="#Page_9">9</a><br /> +<br /> +Ferocity of forest laws, <a href="#Page_119">119</a><br /> +<br /> +Feudal lord, powers of the, <a href="#Page_64">64</a><br /> +<br /> +Feudal system, <a href="#Page_58">58-62</a><br /> +<br /> +Fining jurymen, <a href="#Page_124">124</a><br /> +<br /> +Fire ordeal, <a href="#Page_28">28</a><br /> +<br /> +Flagellation, <a href="#Page_61">61</a><br /> +<br /> +Flags, rendering for tenure, <a href="#Page_101">101</a><br /> +<br /> +Forests, great, <a href="#Page_115">115-116</a><br /> +<br /> +Forgery, punishments, <a href="#Page_142">142</a><br /> +<br /> +Fortune telling, <a href="#Page_169">169</a><br /> +<br /> +France, penal laws of, <a href="#Page_140">140-141</a>;<br /> +<span style="margin-left: 1em;">Trials of animals in, <a href="#Page_149">149-154</a></span><br /> +<br /> +Frankalmoign, <a href="#Page_103">103</a><br /> +<br /> +Free alms, <a href="#Page_103">103-104</a><br /> +<br /> +Fridstools, <a href="#Page_17">17</a>, <a href="#Page_20">20</a><br /> +<br /> +Frost, Thomas, Trial by jury in Old Times, <a href="#Page_122">122-131</a>;<br /> +<span style="margin-left: 1em;">Trials of animals, <a href="#Page_149">149-160</a>;</span><br /> +<span style="margin-left: 1em;">Little Inns of Court, <a href="#Page_258">258-266</a></span><br /> +<br /> +Furnival’s Inn, <a href="#Page_265">265</a><br /> +<br /> +<br /> +Gavelkind, <a href="#Page_106">106-107</a><br /> +<br /> +Ghosts, <a href="#Page_217">217-220</a><br /> +<br /> +Gibbet, gipsy rescued from, <a href="#Page_176">176</a><br /> +<br /> +Gipsies, laws relating to the, <a href="#Page_165">165-178</a><br /> +<br /> +Glove, <a href="#Page_92">92</a><br /> +<br /> +Godiva story, <a href="#Page_74">74</a><br /> +<br /> +Grand Serjeantry, <a href="#Page_100">100</a><br /> +<br /> +Great Civil War, <a href="#Page_179">179</a><br /> +<br /> +Greenacre case, <a href="#Page_209">209</a><br /> +<br /> +<br /> +Hampden, John, <a href="#Page_182">182</a><br /> +<br /> +Hanged, drawn, and quartered, <a href="#Page_133">133-134</a><br /> +<br /> +Hasp and staple symbol, <a href="#Page_52">52-53</a><br /> +<br /> +Hat as a symbol, <a href="#Page_53">53-54</a><br /> +<br /> +Hawaii, ordeals in, <a href="#Page_25">25</a><br /> +<br /> +Henry VIII., laws against gipsies, <a href="#Page_169">169</a><br /> +<br /> +Hereford Fair, <a href="#Page_101">101</a><br /> +<br /> +Heresy, <a href="#Page_228">228</a><br /> +<br /> +Heriots, <a href="#Page_91">91-92</a><br /> +<br /> +Herrick on lawyers, <a href="#Page_269">269</a><br /> +<br /> +High treason, trial for, <a href="#Page_122">122-124</a>;<br /> +<span style="margin-left: 1em;">punishments for, <a href="#Page_132">132-135</a></span><br /> +<br /> +Hindoos, ordeals of the, <a href="#Page_26">26-27</a><br /> +<br /> +Holzmann, Maria Ann, murder of, <a href="#Page_206">206-209</a><br /> +<br /> +Homage, <a href="#Page_53">53</a><br /> +<br /> +Homicide, <a href="#Page_11">11</a><br /> +<br /> +Horse, trial of, <a href="#Page_151">151</a><br /> +<br /> +Hot iron, ordeal of, <a href="#Page_27">27</a>, <a href="#Page_30">30</a>, <a href="#Page_31">31</a>, <a href="#Page_32">32</a><br /> +<br /> +Howlett, England, the Manor and Manor Law, <a href="#Page_83">83-94</a>;<br /> +<span style="margin-left: 1em;">Ancient Tenures, <a href="#Page_95">95-108</a></span><br /> +<br /> +Hugh of Avalon, <a href="#Page_120">120</a><br /> +<br /> +<br /> +Ignorance, sin of, <a href="#Page_7">7</a><br /> +<br /> +Iniquities, legal, <a href="#Page_145">145</a><br /> +<br /> +Irish Island Laws, <a href="#Page_238">238-239</a><br /> +<br /> +Isle of Man, Laws of the, <a href="#Page_243">243-247</a><br /> +<br /> +Island Laws, <a href="#Page_237">237-257</a><br /> +<br /> +<br /> +Jews, extortions of, <a href="#Page_73">73</a><br /> +<br /> +Jocular tenure, <a href="#Page_102">102</a><br /> +<br /> +<br /> +King’s power limited, <a href="#Page_12">12</a><br /> +<br /> +Knight, service of, <a href="#Page_96">96</a><br /> +<br /> +<br /> +Lanercost, the chronicle of, <a href="#Page_272">272</a><br /> +<br /> +Law under the Feudal System, <a href="#Page_58">58-82</a><br /> +<br /> +Law and Medicine abused, <a href="#Page_269">269-270</a><br /> +<br /> +Laws of the Forest, <a href="#Page_109">109-121</a><br /> +<br /> +Laws relating to the Gipsies, <a href="#Page_165">165-178</a><br /> +<br /> +Left-handed murder, <a href="#Page_214">214</a><br /> +<br /> +Letters of IV. Forms, <a href="#Page_163">163</a><br /> +<br /> +Lesemajesty, crimes of, <a href="#Page_229">229-231</a><br /> +<br /> +Lincoln’s Inn, <a href="#Page_266">266</a><br /> +<br /> +Lipski, <a href="#Page_213">213</a><br /> +<br /> +Literature and Law, <a href="#Page_275">275</a><br /> +<br /> +Little Inns of Court, <a href="#Page_258">258-266</a><br /> +<br /> +Lords, power of, <a href="#Page_58">58</a><br /> +<span class="pagenum"><a name="Page_279" id="Page_279">[Pg 279]</a></span><br /> +Lord Chief Justice Popham, stolen by gipsies, <a href="#Page_170">170</a><br /> +<br /> +Loss of right hand, <a href="#Page_138">138</a><br /> +<br /> +Lyon’s Inn, <a href="#Page_259">259</a><br /> +<br /> +<br /> +Macdonald, James C., Devices of the Sixteenth Century Debtors, <a href="#Page_161">161-164</a><br /> +<br /> +Magna Charta, <a href="#Page_63">63</a>, <a href="#Page_98">98</a><br /> +<br /> +Manchester, Sanctuary at, <a href="#Page_15">15</a>, <a href="#Page_16">16</a>, <a href="#Page_17">17</a><br /> +<br /> +Manor and Manor Law, <a href="#Page_83">83-94</a><br /> +<br /> +Manor, origin of, <a href="#Page_88">88</a><br /> +<br /> +Marriage in feudal times, <a href="#Page_59">59</a><br /> +<br /> +Marriage laws, altering, <a href="#Page_195">195</a><br /> +<br /> +Marrying to atone for violence, <a href="#Page_64">64</a><br /> +<br /> +Martin, Maria, <a href="#Page_214">214</a><br /> +<br /> +Middle Ages, ordeals of, <a href="#Page_29">29</a><br /> +<br /> +Military service, <a href="#Page_59">59</a><br /> +<br /> +Military punishments, <a href="#Page_136">136</a><br /> +<br /> +Money raised by marriage, <a href="#Page_72">72</a><br /> +<br /> +Mortal Combat, <a href="#Page_37">37-41</a><br /> +<br /> +Mosaic law, <a href="#Page_3">3</a><br /> +<br /> +Mutilation, a favourite mode of punishment, <a href="#Page_141">141-144</a><br /> +<br /> +Muswell Hill murder, <a href="#Page_213">213</a><br /> +<br /> +<br /> +Neilson, George, on Symbols, <a href="#Page_43">43-57</a>;<br /> +<span style="margin-left: 1em;">Post Mortem Trials, <a href="#Page_224">224-236</a>;</span><br /> +<span style="margin-left: 1em;">Obiter, <a href="#Page_267">267-276</a></span><br /> +<br /> +New Inn, <a href="#Page_259">259</a><br /> +<br /> +New way of paying old debts, <a href="#Page_163">163</a><br /> +<br /> +Nimrod, <a href="#Page_111">111</a><br /> +<br /> +Norman forest laws, <a href="#Page_117">117</a><br /> +<br /> +<br /> +Oath, refusal to bear witness of, <a href="#Page_8">8</a>;<br /> +<span style="margin-left: 1em;">of fealty, <a href="#Page_60">60</a></span><br /> +<br /> +On Symbols, <a href="#Page_43">43-57</a><br /> +<br /> +Oppression of gipsies under Queen Elizabeth, <a href="#Page_171">171</a><br /> +<br /> +Ordeals, <a href="#Page_24">24-42</a><br /> +<br /> +<br /> +Palace regulations, <a href="#Page_138">138-140</a><br /> +<br /> +Parricide, punishment for, <a href="#Page_137">137</a><br /> +<br /> +Paul’s Cross, preaching at, <a href="#Page_194">194</a><br /> +<br /> +Peacock, Edward, Laws of the Forest, <a href="#Page_109">109-121</a>;<br /> +<span style="margin-left: 1em;">Commonwealth Law and Lawyers, <a href="#Page_179">179-196</a></span><br /> +<br /> +Peine forte et dure, <a href="#Page_145">145-148</a><br /> +<br /> +Penal Code, English, <a href="#Page_145">145</a><br /> +<br /> +Penn and Mead, trial of, <a href="#Page_125">125</a><br /> +<br /> +Persecution of gipsies, <a href="#Page_171">171</a><br /> +<br /> +Plantations, gipsies sent to, <a href="#Page_178">178</a><br /> +<br /> +Plays acted by gipsies, <a href="#Page_176">176</a><br /> +<br /> +Pigs, trial of, <a href="#Page_150">150</a>, <a href="#Page_151">151</a>, <a href="#Page_152">152</a>, <a href="#Page_153">153</a>, <a href="#Page_157">157</a><br /> +<br /> +Pillory, <a href="#Page_142">142</a>, <a href="#Page_144">144</a><br /> +<br /> +Poison, <a href="#Page_135">135</a>, <a href="#Page_138">138</a><br /> +<br /> +Poison, ordeal, <a href="#Page_28">28</a><br /> +<br /> +Poisoning, punishment for, <a href="#Page_135">135</a><br /> +<br /> +Poor laws, <a href="#Page_9">9</a><br /> +<br /> +Post-Mortem Trials, <a href="#Page_224">224-236</a><br /> +<br /> +Prejudice against gipsies, <a href="#Page_172">172</a><br /> +<br /> +Protecting the church in war time, <a href="#Page_102">102-103</a><br /> +<br /> +Proverb, oldest, <a href="#Page_111">111</a><br /> +<br /> +Punishments under Saxons, <a href="#Page_61">61</a><br /> +<br /> +<br /> +Quakers, trial of, <a href="#Page_125">125-131</a><br /> +<br /> +<br /> +Rann, Ernest H., trials in superstitious ages, <a href="#Page_22">22-42</a>;<br /> +<span style="margin-left: 1em;">Fatal Links, <a href="#Page_205">205-223</a></span><br /> +<br /> +Reasoning power, <a href="#Page_267">267</a><br /> +<br /> +Rebel Heads on City gates, <a href="#Page_134">134</a><br /> +<br /> +Refuge, cities of, <a href="#Page_14">14</a><br /> +<br /> +Regicides, <a href="#Page_134">134</a><br /> +<br /> +Robbing travellers in feudal times, <a href="#Page_73">73-74</a><br /> +<br /> +Robert de Belesone, cruel acts of, <a href="#Page_65">65</a><br /> +<br /> +Robert the Bruce, Conspiracy, <a href="#Page_225">225</a><br /> +<br /> +Rod in Scotland, <a href="#Page_49">49</a><br /> +<br /> +Roman Empire in its glory, <a href="#Page_114">114</a><br /> +<br /> +Rose Tenures, <a href="#Page_102">102</a><br /> +<br /> +Ruskin, Jno., on Cœur de Lion, <a href="#Page_72">72</a><br /> +<br /> +<br /> +Sacrifice, laws relating to, <a href="#Page_5">5-7</a><br /> +<br /> +Sacrilege, <a href="#Page_8">8</a><br /> +<br /> +Sanctuaries, <a href="#Page_13">13-22</a><br /> +<br /> +Scilly Islands, laws of the, <a href="#Page_239">239</a><br /> +<br /> +Scoggan, Queen’s jester, <a href="#Page_163">163-164</a><br /> +<br /> +Scotch Islands, laws of the, <a href="#Page_239">239-242</a><br /> +<br /> +Scotland, sanctuaries of, <a href="#Page_21">21-22</a><br /> +<br /> +Scott, John, of Edinburgh, <a href="#Page_161">161-163</a><br /> +<br /> +Scutage, <a href="#Page_98">98</a><br /> +<br /> +Self-slaughter, <a href="#Page_229">229</a><br /> +<br /> +Ship-money tax, <a href="#Page_181">181</a><br /> +<br /> +Shaving the head for theft, <a href="#Page_69">69</a><br /> +<br /> +Siamese, ordeals of the, <a href="#Page_26">26</a><br /> +<br /> +Silver spear, <a href="#Page_55">55</a><br /> +<span class="pagenum"><a name="Page_280" id="Page_280">[Pg 280]</a></span><br /> +Slavery, discharge from, <a href="#Page_45">45</a><br /> +<br /> +Slaves, ill treatment of, <a href="#Page_8">8</a>, <a href="#Page_10">10</a>;<br /> +<span style="margin-left: 1em;">under the Saxons, <a href="#Page_60">60</a></span><br /> +<br /> +Slaying gipsies, <a href="#Page_175">175-176</a><br /> +<br /> +Sods offered at the altar, <a href="#Page_48">48</a><br /> +<br /> +Spindle on the altar, <a href="#Page_51">51</a><br /> +<br /> +Staff and baton, <a href="#Page_50">50</a><br /> +<br /> +Staples Inn, <a href="#Page_262">262</a><br /> +<br /> +Star Chamber, <a href="#Page_124">124-125</a><br /> +<br /> +Strangulation, punishment by, <a href="#Page_136">136</a><br /> +<br /> +Straws, breaking, <a href="#Page_48">48</a><br /> +<br /> +Stocks, <a href="#Page_67">67</a><br /> +<br /> +Switzerland, trials of animals in, <a href="#Page_154">154</a><br /> +<br /> +Symond’s Inn, <a href="#Page_265">265</a><br /> +<br /> +<br /> +Thornton, Abraham, <a href="#Page_40">40-41</a><br /> +<br /> +Towns amerced, <a href="#Page_70">70</a><br /> +<br /> +Traitors, exempted from the Sanctuary, <a href="#Page_15">15</a><br /> +<br /> +Treason, trials for, <a href="#Page_233">233</a><br /> +<br /> +Trial by Jury in old times, <a href="#Page_122">122-131</a><br /> +<br /> +Trials of Animals, <a href="#Page_149">149-160</a><br /> +<br /> +Trials in superstitious ages, <a href="#Page_22">22-42</a><br /> +<br /> +Tynwald Day, <a href="#Page_247">247</a><br /> +<br /> +<br /> +Usury, law of, <a href="#Page_9">9</a><br /> +<br /> +<br /> +Villeinage, <a href="#Page_86">86</a><br /> +<br /> +Violating the sanctuary, <a href="#Page_14">14</a>, <a href="#Page_21">21</a><br /> +<br /> +<br /> +Wager of Battel, <a href="#Page_37">37</a>, <a href="#Page_41">41</a><br /> +<br /> +Walters, Cuming, Law under the Feudal system, <a href="#Page_58">58-82</a>;<br /> +<span style="margin-left: 1em;">Island Laws, <a href="#Page_237">237-257</a></span><br /> +<br /> +Wand, <a href="#Page_49">49</a><br /> +<br /> +Welcoming gipsies to England, <a href="#Page_168">168</a><br /> +<br /> +Westminster, sanctuary of, <a href="#Page_20">20</a><br /> +<br /> +Whipping, <a href="#Page_61">61</a>;<br /> +<span style="margin-left: 1em;">Post, <a href="#Page_67">67</a></span><br /> +<br /> +William I., Forest Laws of, <a href="#Page_118">118</a>;<br /> +<span style="margin-left: 1em;">Burial of, <a href="#Page_225">225</a></span><br /> +<br /> +William the Red, Forest laws of, <a href="#Page_119">119</a><br /> +<br /> +Witchcraft, <a href="#Page_144">144-45</a><br /> +<br /> +Wollen Industry, protection of, <a href="#Page_144">144</a><br /> +<br /> +Women, free bench of, <a href="#Page_93">93</a><br /> +<br /> +Working of the sanctuary system, <a href="#Page_16">16</a>, <a href="#Page_17">17</a><br /> +</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<div class="verts"> +<p class="center"><span class="large">SOME RECENT BOOKS</span><br /> +PUBLISHED BY<br /> +<span class="giant">WILLIAM ANDREWS & CO.,</span><br /> +5, FARRINGDON AVENUE, LONDON, E.C.</p> + +<p> </p><p> </p> + +<div class="blockquot"><p>“Valuable and interesting.”—<i>The Times.</i></p> + +<p>“Readable as well as instructive.”—<i>The Globe.</i></p> + +<p>“A valuable addition to any library.”—<i>Derbyshire Times.</i></p></div> + +<p class="title">The Bygone Series.</p> + +<p>In this series the following volumes are included, and issued at 7s. 6d. +each. Demy 8vo., cloth gilt.</p> + +<p>These books have been favourably reviewed in the leading critical journals +of England and America.</p> + +<p>Carefully written articles by recognised authorities are included on +history, castles, abbeys, biography, romantic episodes, legendary lore, +traditional stories, curious customs, folk-lore, etc. etc.</p> + +<p>The works are illustrated by eminent artists, and by the reproduction of +quaint pictures of the olden time.</p> + +<table border="0" cellpadding="0" cellspacing="5" summary="table"> +<tr><td>BYGONE BERKSHIRE, edited by Rev. P. H. Ditchfield, <span class="smcaplc">M.A., F.S.A.</span><br /> +BYGONE CHESHIRE, edited by William Andrews, <span class="smcaplc">F.R.H.S.</span><br /> +BYGONE DERBYSHIRE, edited by William Andrews, <span class="smcaplc">F.R.H.S.</span><br /> +BYGONE ESSEX, edited by William Andrews, <span class="smcaplc">F.R.H.S.</span><br /> +BYGONE ENGLAND, by William Andrews, <span class="smcaplc">F.R.H.S.</span><br /> +BYGONE KENT, edited by Richard Stead, <span class="smcaplc">B.A.</span><br /> +BYGONE LANCASHIRE, edited by Ernest Axon.<br /> +BYGONE LEICESTERSHIRE, edited by William Andrews, <span class="smcaplc">F.R.H.S.</span><br /> +BYGONE LINCOLNSHIRE (2 vols.), edited by William Andrews, <span class="smcaplc">F.R.H.S.</span><br /> +BYGONE LONDON, by Frederick Ross, <span class="smcaplc">F.R.H.S.</span><br /> +BYGONE NOTTINGHAMSHIRE, by William Stevenson.<br /> +BYGONE SCOTLAND, by David Maxwell, <span class="smcaplc">C.E.</span><br /> +BYGONE SOMERSETSHIRE, edited by Cuming Walters.<br /> +BYGONE SOUTHWARK, by Mrs. E. Boger.<br /> +BYGONE SURREY, edited by George Clinch and S. W. Kershaw, <span class="smcaplc">F.S.A.</span><br /> +BYGONE WARWICKSHIRE, edited by William Andrews, <span class="smcaplc">F.R.H.S.</span><br /> +BYGONE YORKSHIRE, edited by William Andrews, <span class="smcaplc">F.R.H.S.</span></td></tr></table> + + +<p> </p><p> </p> +<p class="title">Antiquities and Curiosities of the Church.</p> +<p class="center"><span class="smcap">Edited by</span> WILLIAM ANDREWS, <span class="smcaplc">F.R.H.S.</span></p> +<p class="center"><i>Demy 8vo., 7s. 6d. Numerous Illustrations.</i></p> + +<p><span class="smcap">Contents</span>:—Church History and Historians—Supernatural Interference in +Church Building—Ecclesiastical Symbolism in Architecture—Acoustic +Jars—Crypts—Heathen Customs at Christian Feasts—Fish and +Fasting—Shrove-tide and Lenten Customs—Wearing Hats in Church—The Stool +of Repentance—Cursing by Bell, Book, and Candle—Pulpits—Church +Windows—Alms-Boxes and Alms-Dishes—Old Collecting +Boxes—Gargoyles—Curious Vanes—People and Steeple +Rhymes—Sun-Dials—Jack of the Clock-House—Games in Churchyards—Circular +Churchyards—Church and Churchyard Charms and Cures—Yew Trees in +Churchyards.</p> + +<div class="blockquot"><p>“A very entertaining work.”—<i>Leeds Mercury.</i></p> + +<p>“A well-printed, handsome, and profusely illustrated work.”—<i>Norfolk +Chronicle.</i></p> + +<p>“There is much curious and interesting reading in this popular volume, +which moreover has a useful index.”—<i>Glasgow Herald.</i></p> + +<p>“The contents of the volume is exceptionally good reading, and crowded +with out-of-the way, useful, and well selected information on a +subject which has an undying interest.”—<i>Birmingham Mercury.</i></p> + +<p>“We can recommend this volume to all who are interested in the notable +and curious things that relate to churches and public worship in this +and other countries.”—<i>Newcastle Daily Journal.</i></p> + +<p>“It is very handsomely got up and admirably printed, the letterpress +being beautifully clear.”—<i>Lincoln Mercury.</i></p> + +<p>“The book is well indexed.”—<i>Daily Chronicle.</i></p> + +<p>“By delegating certain topics to those most capable of treating them, +the editor has the satisfaction of presenting the best available +information in a very attractive manner.”—<i>Dundee Advertiser.</i></p> + +<p>“It must not be supposed that the book is of interest only to +Churchmen, although primarily so, for it treats in such a skilful and +instructive manner with ancient manners and customs as to make it an +invaluable book of reference to all who are concerned in the seductive +study of antiquarian subjects.”—<i>Chester Courant.</i></p></div> + + +<p> </p><p> </p> +<p class="title">The Cross, in Ritual, Architecture, and Art.</p> +<p class="center"><span class="smcap">By the</span> REV. GEO. S. TYACK, <span class="smcaplc">B.A.</span></p> +<p class="center"><i>Crown 8vo., 3s. 6d. Numerous Illustrations.</i></p> + +<p>The Author of this Volume has brought together much valuable and +out-of-the-way information which cannot fail to interest and instruct the +reader. The work is the result of careful study, and its merits entitle it +to a permanent place in public and private libraries. Many beautiful +illustrations add to the value of the Volume.</p> + +<div class="blockquot"><p>“A book of equal interest to artists, archæologists, architects, and +the clergy has been written by the Rev. G. S. Tyack, upon ‘The Cross +in Ritual, Architecture, and Art.’ Although Mr. Tyack has restricted +himself to this country, this work is sufficiently complete for its +purpose, which is to show the manifold uses to which the Cross, the +symbol of the Christian Faith, has been put in Christian lands. It +treats of the Cross in ritual, in Church ornament, as a memorial of +the dead, and in secular mason work; of preaching crosses, wayside and +boundary crosses, well crosses, market crosses, and the Cross in +heraldry. Mr. Tyack has had the assistance of Mr. William Andrews, to +whom he records his indebtedness for the use of his collection of +works, notes, and pictures; but it is evident that this book has cost +many years of research on his own part. It is copiously and well +illustrated, lucidly ordered and written, and deserves to be widely +known.”—<i>Yorkshire Post.</i></p> + +<p>“This is an exhaustive treatise on a most interesting subject, and Mr. +Tyack has proved himself to be richly informed and fully qualified to +deal with it. All lovers of ecclesiastical lore will find the volume +instructive and suggestive, while the ordinary reader will be +surprised to find that the Cross in the churchyard or by the roadside +has so many meanings and significances. Mr. Tyack divides his work +into eight sections, beginning with the pre-Christian cross, and then +tracing its development, its adaptations, its special uses, and +applications, and at all times bringing out clearly its symbolic +purposes. We have the history of the Cross in the Church, of its use +as an ornament, and of its use as a public and secular instrument; +then we get a chapter on ‘Memorial Crosses,’ and another on ‘Wayside +and Boundary Crosses.’ The volume teems with facts, and it is evident +that Mr. Tyack has made his study a labour of love, and spared no +research in order, within the prescribed limits, to make his work +complete. He has given us a valuable work of reference, and a very +instructive and entertaining volume.”—<i>Birmingham Daily Gazette.</i></p> + +<p>“An engrossing and instructive narrative.”—<i>Dundee Advertiser.</i></p> + +<p>“As a popular account of the Cross in history, we do not know that a +better book can be named.”—<i>Glasgow Herald.</i></p></div> + + +<p> </p><p> </p> +<p class="title">In The Temple.</p> +<p class="center">By a BARRISTER-AT-LAW.</p> +<p class="center"><i>Price One Shilling.</i></p> + +<p>This book opens with a chapter on the history of the Temple. Next follows +an account of the Knight Templars. The story of the Devil’s Own is given +in a graphic manner. A Sketch of Christmas in the Temple is included. In +an entertaining manner the reader is informed how to become a Templar, the +manner of keeping terms is described, and lastly, the work concludes with +a chapter on call parties.</p> + +<div class="blockquot"><p>“Amusing and interesting sketches.”—<i>Law Times.</i></p> + +<p>“Pleasing gossip about the barristers’ quarters.”—<i>The Gentlewoman.</i></p> + +<p>“A pleasant little volume.”—<i>The Globe.</i></p></div> + + +<p> </p><p> </p> +<p class="title">The Red, Red Wine.</p> +<p class="center">By THE REV. J. JACKSON WRAY.</p> +<p class="center"><i>Crown 8vo., 330 pp. A portrait of the Author and other illustrations.</i></p> +<p class="center"><i>Price 3s. 6d.</i></p> + +<p>“This, as its name implies, is a temperance story, and is told in the +lamented author’s most graphic style. We have never read anything so +powerful since ‘Danesbury House,’ and this book in stern and pathetic +earnestness even excels that widely-known book. It is worthy a place in +every Sunday School and village library; and, as the latest utterance of +one whose writings are so deservedly popular, it is sure of a welcome. It +should give decision to some whose views about Local Option are +hazy.”—<i>Joyful News.</i></p> + +<p>“The story is one of remarkable power.”—<i>The Temperance Record.</i></p> + +<p>“An excellent and interesting story.”—<i>The Temperance Chronicle.</i></p> + + +<p> </p><p> </p> +<p class="title">Faces on the Queen’s Highway.</p> +<p class="center">By FLO. JACKSON.</p> +<p class="center"><i>Elegantly Bound, Crown 8vo., price 2s. 6d.</i></p> + +<p>Though oftenest to be found in a pensive mood, the writer of this very +dainty volume of sketches is always very sweet and winning. She has +evidently a true artist’s love of nature, and in a few lines can limn an +autumn landscape full of colour, and the life which is on the down slope. +And she can tell a very taking story, as witness the sketch “At the Inn,” +and “The Master of White Hags,” and all her characters are real, live +flesh-and-blood people, who do things naturally, and give very great +pleasure to the reader accordingly. Miss Jackson’s gifts are of a very +high order.—<i>Aberdeen Free Press.</i></p> + + +<p> </p><p> </p> +<p class="title">Old Church Lore.</p> +<p class="center"><span class="smcap">By</span> WILLIAM ANDREWS, <span class="smcaplc">F.R.H.S.</span></p> +<p class="center"><i>Demy 8vo., 7s. 6d.</i></p> + +<p><span class="smcap">Contents</span>—The Right of Sanctuary—The Romance of Trial—A Fight between +the Mayor of Hull and the Archbishop of York—Chapels on Bridges—Charter +Horns—Tho Old English Sunday—The Easter Sepulchre—St. Paul’s +Cross—Cheapside Cross—The Biddenden Maids Charity—Plagues and +Pestilences—A King Curing an Abbot of Indigestion—The Services and +Customs of Royal Oak Day—Marrying in a White Sheet—Marrying under the +Gallows—Kissing the Bride—Hot Ale at Weddings—Marrying Children—The +Passing Bell—Concerning Coffins—The Curfew Bell—Curious Symbols of the +Saints—Acrobats on Steeples—A carefully prepared Index—Illustrated.</p> + +<div class="blockquot"><p>“An interesting volume.”—<i>The Scotsman.</i></p> + +<p>“A worthy work on a deeply interesting subject.... We commend this +book strongly.”—<i>European Mail.</i></p> + +<p>“The book is eminently readable, and may be taken up at any moment +with the certainty that something suggestive or entertaining will +present itself.”—<i>Glasgow Citizen.</i></p> + +<p>“Mr. Andrews’ book does not contain a dull page.... Deserves to meet +with a very warm welcome.”—<i>Yorkshire Post.</i></p></div> + + +<p> </p><p> </p> +<p class="title">A Lawyer’s Secrets.</p> +<p class="center"><span class="smcap">By</span> HERBERT LLOYD.</p> +<p class="center"><span class="smcap">Author of “the Children of Chance,” etc.</span></p> +<p class="center"><i>Price One Shilling.</i></p> + +<p>“Mr. Herbert Lloyd gives us a succession of stories which may reasonably +be taken to have their origin in the experience of a lawyer practicing at +large in the criminal courts. It is natural that they should be of a +romantic nature; but romance is not foreign to a lawyer’s consulting room, +so that this fact need not be charged against this lawyer’s veracity.... +The stories, seven in all, cover the ground of fraud and murder, inspired +by the prevailing causes of crime—greed and jealousy. Our lawyer is happy +in having the majority of his clients the innocent victims of false +charges inspired and fostered in a great measure by their own folly; but +this is a natural phase of professional experience, and we are only +concerned with the fact that he generally manages it as effectively in the +interests of his clients as his editor does in presenting them to his +audience.”—<i>Literary World.</i></p> + +<p>“A volume of entertaining stories.... The book has much the same interest +as a volume of detective stories, except that putting the cases in a +lawyer’s mouth gives them a certain freshness. It is well written, and +makes a capital volume for a railway journey.”—<i>The Scotsman.</i></p> + +<p>“A very entertaining volume.”—<i>Birmingham Daily Gazette.</i></p></div> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><strong>Footnotes:</strong></p> + +<p><a name='f_1' id='f_1' href='#fna_1'>[1]</a> This and other documents have been collected by Mr. T. J. de’ +Massinghi, whose monagraph on “Sanctuaries” (Stafford, 1888) is the chief +source of information on the subject.</p> + +<p><a name='f_2' id='f_2' href='#fna_2'>[2]</a> See Andrews’ “Old Church Lore,” 1891, and the authorities there cited.</p> + +<p><a name='f_3' id='f_3' href='#fna_3'>[3]</a> The material facts in this paper up to this point are derived from +<i>Thevenin’s Textes relatifs aux Institutions privées</i> and <i>Du Cange art. +investitura</i>.</p> + +<p><a name='f_4' id='f_4' href='#fna_4'>[4]</a> Williams’ “Real Property Law.”</p> + +<p><a name='f_5' id='f_5' href='#fna_5'>[5]</a> Williams’ “Real Property Law.”</p> + +<p><a name='f_6' id='f_6' href='#fna_6'>[6]</a> Southey’s Common Place Book, 4th Series, 1851, p. 175.</p> + +<p><a name='f_7' id='f_7' href='#fna_7'>[7]</a> Chapter x., verses 8 and 9.</p> + +<p><a name='f_8' id='f_8' href='#fna_8'>[8]</a> Ecl. II., line 62.</p> + +<p><a name='f_9' id='f_9' href='#fna_9'>[9]</a> Constitutional History of England, I. Ed., Vol. I., p. 289.</p> + +<p><a name='f_10' id='f_10' href='#fna_10'>[10]</a> The Lord Chief Justice, John Popham, who was born in 1531, is said to +have been stolen when a child by the gipsies. They disfigured him and +placed on his arm a cabalistic mark. Apparently it was a case of +tattooing. But the story is discredited.</p> + +<p><a name='f_11' id='f_11' href='#fna_11'>[11]</a> <i>Gaújo</i> is the name given by the gipsies to all strangers who are not +of the Romany race.</p> + +<p><a name='f_12' id='f_12' href='#fna_12'>[12]</a> <i>Edition</i> 1857, vol. i., p. 77.</p> + +<p><a name='f_13' id='f_13' href='#fna_13'>[13]</a> Peacock. <i>Army Lists of Roundheads and Cavaliers</i>, 2nd edit., 1874, +p. 21.</p> + +<p><a name='f_14' id='f_14' href='#fna_14'>[14]</a> Wood, <i>Athenae Oxon</i>, sub nom.</p> + +<p><a name='f_15' id='f_15' href='#fna_15'>[15]</a> John Loden Gollpried’s <i>Kronyck</i>, vol. iv., p. 454. Van der Aa, +<i>Biographisch Woordenboek</i>, sub voce.</p> + +<p><a name='f_16' id='f_16' href='#fna_16'>[16]</a> Carlyle, <i>Letters and Speeches of Oliver Cromwell</i>, vol. i., p. 50.</p> + +<p><a name='f_17' id='f_17' href='#fna_17'>[17]</a> Henry Scobell, <i>Acts and Ordinances</i>, 1645, chapter 57.</p> + +<p><a name='f_18' id='f_18' href='#fna_18'>[18]</a> “Michelet’s History of France,” viii., ch. 1. “Cheruel’s Dictionnaire +des Institutions,” art. “Cadavre.”</p> + +<p><a name='f_19' id='f_19' href='#fna_19'>[19]</a> “Pollock and Maitland’s History of English Law,” ii., 60. Bracton +51<sup>b</sup>, 262.</p> + +<p><a name='f_20' id='f_20' href='#fna_20'>[20]</a> “Lea’s Superstition and Force” (ed. 1892), 359-70.</p> + +<p><a name='f_21' id='f_21' href='#fna_21'>[21]</a> “Roman de Rou,” ii., 9320-40.</p> + +<p><a name='f_22' id='f_22' href='#fna_22'>[22]</a> “Three Metrical Romances” (Camden Socy.), xxvi., 33. See “Decretals +of Gregory,” lib. ii., tit. 28, cap. 25, <i>qua fronte</i>; also “Lyndwood’s +Provinciale,” p. 278.</p> + +<p><a name='f_23' id='f_23' href='#fna_23'>[23]</a> “Bower’s Scotichronicon,” ii., 275. “Extracta e Cronicis,” 150. +“Scalacronica,” 144.</p> + +<p><a name='f_24' id='f_24' href='#fna_24'>[24]</a> “Robertson’s Index,” 5, 10, 12, 19, 20, 21.</p> + +<p><a name='f_25' id='f_25' href='#fna_25'>[25]</a> “Rolls of Parliament,” ii., 335.</p> + +<p><a name='f_26' id='f_26' href='#fna_26'>[26]</a> “Rolls of Parliament,” iii., 384.</p> + +<p><a name='f_27' id='f_27' href='#fna_27'>[27]</a> “Rolls of Parliament,” iii., 459.</p> + +<p><a name='f_28' id='f_28' href='#fna_28'>[28]</a> “Chronicle of Adam of Usk,” pp. 44, 45.</p> + +<p><a name='f_29' id='f_29' href='#fna_29'>[29]</a> “Justinian’s Institutes,” iv., 18. “Digest,” xlviii., 4, 11. “Code,” +ix., 8.</p> + +<p><a name='f_30' id='f_30' href='#fna_30'>[30]</a> “Tacitus,” xvi., 11.</p> + +<p><a name='f_31' id='f_31' href='#fna_31'>[31]</a> “Code,” i., 5, 4.</p> + +<p><a name='f_32' id='f_32' href='#fna_32'>[32]</a> “Decretals of Gregory,” v., 7, 10.</p> + +<p><a name='f_33' id='f_33' href='#fna_33'>[33]</a> “Decretals of Gregory,” v., 39, 28. “Lea’s Studies in Church +History,” 264-66.</p> + +<p><a name='f_34' id='f_34' href='#fna_34'>[34]</a> “Haddan and Stubbs’s Councils,” i., 393. “Lea’s Studies,” 384, 425.</p> + +<p><a name='f_35' id='f_35' href='#fna_35'>[35]</a> “Lea’s Chapters from the Religious History of Spain,” 372, 492.</p> + +<p><a name='f_36' id='f_36' href='#fna_36'>[36]</a> “Cheruel’s Dictionnaire,” and “Denisart’s Collection de Decisions,” +art. “Lesemajeste, memoire, suicide.”</p> + +<p><a name='f_37' id='f_37' href='#fna_37'>[37]</a> For a curious English case of gibbetting a suicide in 1234, see +“Maitland’s Bracton’s Note Book,” 1114: compare “Bracton,” fo. 150.</p> + +<p><a name='f_38' id='f_38' href='#fna_38'>[38]</a> “La Loy de Beaumont” (Reims 1864), p. 241.</p> + +<p><a name='f_39' id='f_39' href='#fna_39'>[39]</a> “Acts of Parliament, Scotland,” ii., 356.</p> + +<p><a name='f_40' id='f_40' href='#fna_40'>[40]</a> “Mackenzie’s Criminal Law,” i., 6, 21-2. “Hume’s Law of Crimes,” i., +539. “Pitcairn’s Criminal Trials,” ii., 278. “Riddell’s Scottish +Peerages,” ii., 757-58.</p> + +<p><a name='f_41' id='f_41' href='#fna_41'>[41]</a> “Acts Parl. Scot.,” ii., 356.</p> + +<p><a name='f_42' id='f_42' href='#fna_42'>[42]</a> But = without.</p> + +<p><a name='f_43' id='f_43' href='#fna_43'>[43]</a> “Acts Parl. Scot.,” ii., 369.</p> + +<p><a name='f_44' id='f_44' href='#fna_44'>[44]</a> “Acts Parl. Scot.,” ii., 415.</p> + +<p><a name='f_45' id='f_45' href='#fna_45'>[45]</a> Case of Earl of Huntly in 1562. Tytler’s “Hist. of Scotland,” iii., +167.</p> + +<p><a name='f_46' id='f_46' href='#fna_46'>[46]</a> “Acts Parl. Scot.,” i., 415.</p> + +<p><a name='f_47' id='f_47' href='#fna_47'>[47]</a> “Bain’s Calendar of Border Papers,” ii., 417.</p> + +<p><a name='f_48' id='f_48' href='#fna_48'>[48]</a> “Border Papers,” ii., 711.</p> + +<p><a name='f_49' id='f_49' href='#fna_49'>[49]</a> “Pitcairn’s Crim. Trials,” ii., 233, 241.</p> + +<p><a name='f_50' id='f_50' href='#fna_50'>[50]</a> Pitcairn, ii., 167-8. “Acts Parl. Scot.,” iv., 199.</p> + +<p><a name='f_51' id='f_51' href='#fna_51'>[51]</a> “Birrel,” quoted in “Pitcairn,” ii., 247.</p> + +<p><a name='f_52' id='f_52' href='#fna_52'>[52]</a> <i>Quhill</i>, until.</p> + +<p><a name='f_53' id='f_53' href='#fna_53'>[53]</a> For an example in 1603, that of Francis Mowbray, see “Pitcairn,” ii., +406-9.</p> + +<p><a name='f_54' id='f_54' href='#fna_54'>[54]</a> A full account of the trial is given in “Pitcairn,” ii., 276-92.</p> + +<p><a name='f_55' id='f_55' href='#fna_55'>[55]</a> Lord Hailes quoted in “Pitcairn,” ii., 277.</p> + + + + + + + + + +<pre> + + + + + +End of the Project Gutenberg EBook of Legal Lore, by Various + +*** END OF THIS PROJECT GUTENBERG EBOOK LEGAL LORE *** + +***** This file should be named 38589-h.htm or 38589-h.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/3/8/5/8/38589/ + +Produced by The Online Distributed Proofreading Team at +https://www.pgdp.net (This file was produced from images +generously made available by The Internet Archive.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: Legal Lore + Curiosities of Law and Lawyers + +Author: Various + +Editor: William Andrews + +Release Date: January 16, 2012 [EBook #38589] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK LEGAL LORE *** + + + + +Produced by The Online Distributed Proofreading Team at +https://www.pgdp.net (This file was produced from images +generously made available by The Internet Archive.) + + + + + + + + + +The Lawyer in History, Literature, and Humour. + +Edited by WILLIAM ANDREWS, F.R.H.S. + +"A welcome addition to the lighter literature of the law."--_The Times._ + +"A considerable amount of historical and literary information."--_Daily +News._ + +"An entertaining work. It is rich in the lore and the humour of the law, +and ought to be as interesting to the layman as to the lawyer."--_The +Globe._ + +"A handsome volume.... The work is printed and got up in a style that does +credit to the well-known firm of publishers."--_Chester Courant._ + + + + +[Illustration: TRIAL OF A PIG AT LAUSANNE IN THE FOURTEENTH CENTURY.] + + + + + Legal Lore: Curiosities of Law and Lawyers + + + EDITED BY William Andrews. + + + LONDON: + WILLIAM ANDREWS & CO., 5, FARRINGDON AVENUE, E.C. + 1897. + + + + +Preface. + + +The favourable reception given to my volume issued under the title of "The +Lawyer in History, Literature, and Humour," has induced me to prepare, on +similar lines, the present book, dealing with curiosities of the law. I +hope those who are interested in the study of the byways of literature may +find entertainment and instruction in its pages, and that it will win a +welcome not only from the legal profession, but from the reading public. + +I am enabled by the courtesy of Messrs. Chatto & Windus, to reproduce for +my frontispiece, an illustration from a work published by them, under the +title of "Credulities Past and Present." + +WILLIAM ANDREWS. + + THE HULL PRESS, + 10th December, 1896. + + + + +Contents. + + + PAGE + + BIBLE LAW. By S. Burgess, M.A. 1 + + SANCTUARIES. By William E. A. Axon, F.R.S.L. 13 + + TRIALS IN SUPERSTITIOUS AGES. By Ernest H. Rann 23 + + ON SYMBOLS. By George Neilson 43 + + LAW UNDER THE FEUDAL SYSTEM. By Cuming Walters 58 + + THE MANOR AND MANOR LAW. By England Howlett 83 + + ANCIENT TENURES. By England Howlett 95 + + LAWS OF THE FOREST. By Edward Peacock, F.S.A. 109 + + TRIAL BY JURY IN OLD TIMES. By Thomas Frost 122 + + BARBAROUS PUNISHMENTS. By Sidney W. Clarke 132 + + TRIALS OF ANIMALS. By Thomas Frost 149 + + DEVICES OF THE SIXTEENTH CENTURY DEBTORS. By James C. + Macdonald, F.S.A., Scot. 161 + + LAWS RELATING TO THE GIPSIES. By William E. A. Axon, F.R.S.L. 165 + + COMMONWEALTH LAW AND LAWYERS. By Edward Peacock F.S.A. 179 + + COCK-FIGHTING IN SCOTLAND. 197 + + COCKIELEERIE LAW. By Robert Bird 200 + + FATAL LINKS. By Ernest H. Rann 205 + + POST-MORTEM TRIALS. By George Neilson 224 + + ISLAND LAWS. By Cuming Walters 237 + + THE LITTLE INNS OF COURT. 258 + + OBITER. By George Neilson 267 + + INDEX 277 + + + + +LEGAL LORE. + + + + +Bible Law. + +BY S. BURGESS, M.A. + + +At the very outset of any treatment of so delicate a subject as that +indicated by the title of this chapter, we are met by no small difficulty. +This consists in the danger of committing unintentional errors of +irreverence, and thus offending the prejudices of those who are more or +less pledged to their belief in the verbal inspiration of every Bible +chapter and verse. With this risk before us, we can only trust to our own +sense of a rational view of a subject so full of capabilities of +misconstruction. Those of us who can remember the outburst of righteous +indignation at the publication of the "Essays and Reviews" and of "Ecce +Homo," feel surprise at the quiet indifference with which views expressed +in them are now received. This does not at all, or necessarily, mean that +men's faith is colder, or that the spirit of reverent religious feelings +has died away. The advance of accurate scientific investigation may have +upset the faith of some, and given a subject for outbursts of intolerant +pulpit denunciations, but we must think that there are signs plainly +discernible of a quiet acceptation of modern discovery by the majority of +thoughtful and devout believers in the inspiration of Holy Scripture. +These remarks will be found not unneedful as we pursue the examination of +this particular branch of Biblical study, namely, the Law as it is found +in the Bible, and this will be seen at once when it is laid down as an +absolutely necessary condition of our investigation that this same Law can +plainly be divided into two distinct portions--that which is of Divine, +and that which is of human origin. The bare statement of this fact will +offend certain prejudices. The Divine "Fiat" stamps with as marvellous and +undoubted clearness, certain portions, as other parts are marked by the +progress of human intelligence, the needs of human society, and the force +of the human will. + +The very fact of the existence of Law entails the necessity of Penalty, +and this may be spiritual or corporal. The former depends on the +acknowledgment of the rule over us of a Superior Being. The latter is a +necessary accompaniment of all and every human life, believing or +unbelieving. So in the Bible Law we can easily distinguish between the +penalty affixed to the breaking of the first of the Ten Commandments, and +that which followed on the breaking of the sixth. On the authority of +Hebrew scholars, we are told that the use of the Hebrew Article shows that +_The Law_ refers to the expressed will of God. If this rule be invariable, +it would be of great value, and especially so in the use of the Greek +Article. + +The writers of the Psalms gave forth an intense reflection of the old Law; +always presuming, as they of course did, that it emanated from the Deity. + +Now let us be allowed to start with the assumption that the Mosaic is the +earliest form of tabulated Law. A most excellent book has just been +published, "The History of Babylonia," by the Society for Promoting +Christian Knowledge. It is a cheap little book, but full of information +upon which one feels able to rely. We find there that the Moral Law of +Babylonia represents the spirit of Bible Law so accurately that it would +be absurd to set up any theory of an independent basis. + +We must make a date somewhere, and therefore we cannot do better than +choose a date that can be fairly tested, and safely on this side of +mythical eras,--and that is about 1500 B.C. This must appear a very safe +and modest date to fall back upon. The Babylonians want us to go back +432,000 years, but to accept this assertion requires more faith than most +of us possess. + +For our present purpose there is nothing gained by comparing the Mosaic +Law with that discovered with such infinite care and learning in the +Babylonian records. The utmost that can be said is that we have startling +coincidences, and an intensely interesting subject opened out. But there +is no single grain of information, and that is what we are just now in +search of. We feel quite distrustful of documents, especially _stone_ +ones, which give the lifetime of Alorus as extending to 36,000 years. That +was before the Deluge. The Wandering Jew sinks into insignificance, and is +a mere puling infant by the side of such figures as these, because the son +of Alorus reigned for 46,800 years. However short the "year" was, the +period of life was quite lengthy. If a year was our week, the last named +patriarch was about 1,000 years old. + +This is a departure somewhat from the Law as it is in our Bibles. But it +will be an interesting study for some kind student to compare that Law +with the echoes thereof found in Asiatic literature, even far away on the +eastern shores of China. The mystery still unsolved is, "_How did it get +there?_" + +With the greatest diffidence we make the statement that the first notion +of Law was in connection with sacrifice. The time may come when this can +be refuted. But at present, leaving out of the question natural and +unwritten Law, we find no bond but this. Sacrifice comes to us as a Law +from a Superior Being. Heathen nations have recognized the efficacy of +sacrifice and offerings. + +Man without Law was an impossibility. No living thing can exist without +some Law. Thus we look back to the first records of created living things +for some Law. Science sheds a great, broad, and even scaring, light on the +Law prevailing over inanimate nature. The seas and the fields obey it. +But for us to make a record of Law as it made its beginning, is a task too +great, and it is indeed then we feel that "fools may rush in" where better +souls have had to languish in doubt. + +Let us take the Law in the Bible as we can read it, and how few care to +read it! There was a man once who had read the whole of the first five +books through _twice_. Thinking there might be something to gain from such +abnormal study, we propounded a few questions on this very subject. The +result was a senseless repetition of verses from Leviticus. And yet, to +tell the honest truth, there is very little left us to do but to _quote_. +There is a little assistance we can give, and most thankful we are to have +it in our power to do so. Let us all the time remember that the Bible Law +is the sole foundation of every Law, Human and Divine, as far as we can +discover. If it can be proved that the Babylonian record with its 40,000 +year old kings is to be relied on, then by all means let us accept it. + +We start with the sacrifice as the "_companion_" of the Law. No one can +feel hurt by this. It is no good to any of us to ask whether Abel's +sacrifice was according to revealed Law or anterior to it. It is plain +that sacrifice came to be the great medium of the Law between man and the +great prevailing Law. With this allowed, all the rest is easier to grasp. +The early Law among the first people seemed to have no force but in its +connection with some higher Power. This Power has been now deputed to +earthly sources. + +The writers of the Psalms represent to us a perfect intercourse with the +Deity. The question then arises, "On what grounds was this intercourse +conducted?" The answer seems clearly to be on the conditions of the Laws +of sacrifice. Now, by comparing the elaborate list of these contained in +Smith's "Dictionary of the Bible" with a very careful one in "Notes on the +Hebrew Psalms," by W. R. Burgess (1879), we can make out a clear and very +useful _resume_. Leaving out the great sin offerings for the _whole +people_ and for the priests, we have the following sin offerings:-- + +1. For any sin of ignorance. Lev. iv. A most elaborate ceremonial of +sacrifice and blood sprinkling. We should like to know when the "plea of +ignorance" was done away with altogether, as we believe it has no force at +all in modern Law. + +2. For refusal to bear witness on oath. Lev. v. This is of very great +interest in the light of recent legislation as to affirmation. We have +come across many people, it is needless to add grossly ignorant, who have +entirely lost sight of the obvious emphasis on the word "False" in the 9th +Commandment, placing the whole force on the fact of "Witness." + +3. The Laws as to defilement. These, we presume, have left no trace on +modern Law. + +4. The breach of a rash oath, the keeping of which would involve sin. Lev. +v., 4. This opens a most interesting subject, but we have not space to +enter upon it. From the days of Jephthah and his oath with regard to his +daughter until this day, the question has been full of difficulties, and +is divided amongst, perhaps, equal advocates for the two opposed views of +it. + +5. Sacrilege in ignorance, fraud, _suppressio veri_, and perjury, were +punished by enforced compensation, and the addition of a fifth part of the +value concerned in the matter to the priest, or to the person wronged. + +6. Illtreatment of betrothed slaves. Lev. xix., 20. This is only curious, +but at the same time has a connection with late enactments in criminal +Law. + +7. The Law as to the powers of a father is extraordinary. When one +considers the relation now existing and defined by our Law, the revolution +is beyond all measure out of reasonable proportion. For a curse, a blow, +or even wilful disobedience, the penalty was _death_! + +8. The Law of usury is difficult, but the chief points are well known. The +main principle of the Law prevails to this day. Let us only notice the +striking fact that usury could not be exacted upon the Jews themselves. +Does this not offer a fine comment on the grievous usury so cruelly +enforced in after years by these people upon the _Gentile_ races? + +9. Debt. All debts were released at the seventh year. So there was a year +of limitation. + +10. Tithe. This Law has been so frequently and ably set forth, that it is +entirely one's own fault if it needs any comment. + +11. Poor Laws. These are conspicuous by their absence. There was a legal +right of gleanings, a second tithe to be given in charity, and wages were +to be paid day by day. (Deut. xxiv.) + +A few rather important forms of legislation must be placed here as +addenda. We notice the entirely despotic power of the husband over the +wife, and all belonging to her. Compare _our_ useful but very late +enactment as to married women's property, apart from her almost complete +irresponsibility. + +The slander against a wife's virginity is punished by a fine only, but the +fact of its truth, and therefore no longer a slander, is punished by the +death of the woman. This is a most striking proof of the lower room in +social judgment awarded to the female Israelite. We notice also that the +power of the master over his servant was absolute, but that the master +suffered a penalty if his servant or slave died under castigation! Ex. +xxi. If he was maimed, he was by this fact allowed his freedom. The rule +as to _Hebrew_ slaves is very interesting. It is too long to be quoted +here, but it can be easily mastered by a reference to Ex. xxi., Deut. xv., +Lev. xxv. + +We notice that there is no protection _legally_ allowed to _strangers_, +and so we find kindness and protection enjoined as a sacred duty. + +We believe that the old list of "Prohibited Degrees," which we saw placed +in churches in our infancy, and is still to be seen, is in all respects +enforced by our present Law. But we are not quite sure of this. We can +only remember the vague sense of mystery underlying the clause, which was +always put in the largest type:-- + + "A MAN MAY NOT MARRY HIS GRANDMOTHER." + +Another most interesting Law must be carefully noticed, and if possible, +more deeply studied. In cases of accidental homicide, there was mostly an +"avenger of blood" to be looked for. To escape this untoward follower, +cities of refuge or sanctuaries were named, and in these the poor wretch +was safe until the death of the high priest. + +As to the legal penalty of adultery, are we quite sure that, according to +results, we have greatly improved upon the old Bible Law? Under this the +punishment was _death_ of _both offenders_. Was it the fear lest the +population of the world should be so very seriously lessened that +gradually brought this Law to less than a penal one, so that at this day a +Royal "Commission" is placed on the offence in the shape of the absolute +freedom of the offenders to seek for _another opportunity_? + +Just a few words more as to those who interpreted the Law. These were the +Priests and the Levites. The "Judges," as we read of them in the book of +that name, had, with the exception of Samuel, mostly to do with the +settlement of political disputes, and the leading out of the people to +victory or defeat, as the case might be. But in later times the power of +the Sanhedrim was undoubtedly great. + +The king's power was legally limited. But so it is, and has been, in all +ages and in all dominions _in theory_! Yet we find Rehoboam expelled by +Jereboam, and the latter as despotic as the former, just as we find a firm +will in Cromwell after the despotism of Charles, in what had been then for +centuries the most "Constitutionally" governed country in the world! + + + + +Sanctuaries. + +BY WILLIAM E. A. AXON, F.R.S.L. + + +In all ages men have attributed a special sanctity to certain localities, +usually those devoted to the purposes of worship, and this sentiment has +in many lands been utilised in the interests of mercy by exempting those +within the precincts from arrest for some, or even all, crimes and +offences. In the earlier stages of development, the punishment of crime +was not regarded as a duty of the community, but as an obligation, or +privilege of the injured or of those nearest to him in blood or social +relationship. Thus the son of a murdered man had the right to murder the +murderer. The general principle of the earlier forms of justice is the +_lex talionis_, but the infliction of the penalty was mostly in the +discretion of the avenger. He might be afraid to attempt to slay a strong +or powerful homicide, and be willing to pardon the offence for a money +consideration. A criminal who took refuge in a sacred place secured at +least a breathing time in which his friends might effect a compromise +with his adversary. Greece had its famous _asyla_, but the custom of our +own country was probably influenced from Hebrew rather than classical +sources. In the narrative of the death of Joab, the hesitation of Benaiah +shows that it was unusual to slay one who had taken hold of the horns of +the altar. The six Cities of Refuge were appointed as places of safety for +involuntary homicides, where they were protected from the avenger of +blood. Amongst our Anglo-Saxon ancestors, the Church exerted a moderating +influence. Every consecrated church had the right to shelter the fugitive +from justice for seven days, and when the building was needed, he might be +placed in a house provided for that purpose by the church, which was not +to have more doors than the church itself. If the criminal was dragged +forth from his refuge, the violators of the sanctuary were fined in +varying degrees according to the rank of the ecclesiastical edifice. In +addition to the inherent right of each church, special privileges were +conferred on certain places by the exercise of the royal prerogative. In +1378, it was decided that the property of fraudulent debtors who had taken +sanctuary should be liable for the satisfaction of the claims of their +creditors. In 1486, Pope Innocent VIII. issued a bull relating to English +sanctuaries, by which it was provided that when the refugee left his +asylum, he lost his right of protection, even though he subsequently +returned to the sanctuary. At the same time, the king was empowered to +appoint keepers to look after those who having been accused of treason, +had taken sanctuary. + +Great changes were made in the law during the reign of Henry VIII. +Traitors were wholly exempted from the privilege; those abjuring the realm +were not actually banished, but were to remain throughout life in the +sanctuary, and if they left it and committed any offence, they might then +be brought to trial. All inmates were to wear a badge twenty inches in +length and breadth, were forbidden the use of weapons, and were not to +leave their lodgings between sunrise and sunset. In 1538, the right of +sanctuary was further restricted, and Wells, Manchester, Northampton, +York, Derby, and Launceston were declared sanctuaries. Manchester found +this privilege to be of such doubtful value that two years later it was +transferred to Chester, and afterwards to Stafford. In the reign of James +I., the right of sanctuary was abolished almost everywhere. The Palatine +Counties had their special sanctuaries. In Cheshire, Hoole Heath, +Overmarsh, and Rudheath were such places of refuge. The abbey of Vale +Royal had also a grant. But generally the County Palatine of Chester was a +place of resort for those who had come into conflict with the law in other +parts of the kingdom, and it was not until the reign of Charles II. that +the king's writ ran in the palatinates and other privileged places. Many +privileged places in London, Westminster, and Southwark were brought +within the regular jurisdiction in the reign of William III. and George +II. + +We have an instructive picture of the working of the sanctuary system in +the case of Manchester. The Act of 32 Hen. VIII., c. 8, abolished the +right of refuge in all places except, and the exception is a considerable +one--churches, hospitals, and churchyards. Perhaps a more important +exception was that sanctuary was to be denied to those guilty of murder, +rape, highway robbery, burglary, house-burning, or sacrilege. Whilst +abolishing many sanctuaries, certain additional places were named as +cities of refuge for minor offenders. One of these was Manchester. A year +later the town petitioned to be relieved from this distinction. The +inhabitants set forth that Manchester had a great trade in the bleaching +of linen yarn, and in the making of linen and woollen cloths and dressing +of cotton, and that the influx of dissolute persons to the sanctuary had +caused serious damage to the prospects of the town, which, having no +mayor, sheriff, or bailiff, and no jail, was badly circumstanced for +dealing with these lawless invaders. The request was granted, and the +sanctuary removed from Manchester to Chester. But the city of the Deva +found it desirable to obtain relief, and a further removal was made to +Stafford. + +The fridstool at Hexham still remains, although nearly everything else of +the Saxon foundation has perished. This "chair of peace" was the central +point of the sanctuary, which extended a mile around. A Durham example of +the working of the law may be cited. + + "Memorandum: That on the 13th day of the month of May, A.D. 1464, one + Colson, of Wolsyngham, Durham, who had been detected in a theft, and + therefore put and detained in gaol, at length contrived to escape, + and fled to the Cathedral Church of Durham, in order to avail himself + of its immunities, and whilst he was there standing near the bier of + St. Cuthbert, prayed, that a Coroner might be assigned to him. Upon + John Raket, Coroner of the Ward of Chester in Strata (sic) coming to + him, the same Colson confessed the felony, making upon the spot the + corporeal oath that he abjured the realm of England, and would + withdraw from it as soon as he could conveniently, and would never + return thither, and which oath he took at the bier of St. Cuthbert in + the presence of Master George Cornworth, Sacristan of the Cathedral + Church of Durham; Ralph Bows, Knight and Sheriff of Durham; John Raket + (the Coroner); Robert Thrylkett, Deputy Sheriff; Hugh Holand, and + Nicholas Dixson, and of many others; by reason of which renunciation + and oath all the dress of the said Colson belonged to the said + Sacristan and his office; wherefore the said Colston was enjoined to + take off to his shirt all his garments, and deliver them to the + aforesaid Sacristan, and he did so, placing them all into his + possession, the Sacristan gave up and delivered to him again, + gratuitously, all his dress that he had up to this occasion been + clothed in; and after that Colstone withdrew from the Church, and was + handed over to the nearest constable by the aforesaid sheriff, and so + on from constables to constables, holding a white cross made of wood + as a fugitive, and so he was to be conducted to the nearest seaport to + take vessel as one never to return. This was done on the day, month, + and year aforesaid."[1] + +The system was one that led to gross abuse. It was held that the right did +not extend to others than those whose offences entailed forfeiture of life +and limb, but in practice knavish debtors, fraudulent executors, etc., +availed themselves of the protection. There was plenty of scope for +dispute as to jurisdiction. In 1427, the Abbot of Beaulieu was required to +give proof of his right to shelter William Wawe, who is described as a +heretic, traitor, common highwayman and public robber. "Wille Wawe was +hanged," is the sum of the matter as recorded by Stowe. Between 1478 and +1539, at Durham, 283 persons took refuge who were, as principals or +accessories, accused of homicide. There were sixteen debtors, four +horse-stealers, nine cattle-stealers, and four house-breakers. One had +been charged with rape, and seven with theft. One had been backward in his +accounts, one had harboured a thief, and one had failed to prosecute. Sir +John Holland, in revenge for the death of his esquire, killed the son and +heir of Hugh, second Earl of Stafford, and then took sanctuary at +Beverley. The murderer, in this case, was the half-brother of Richard II., +but it was with great difficulty that the king was induced to grant a +pardon. + +The church of St. John of Beverley had a charter from Athelstan, and near +the altar was the Fridstool, or chair of peace, "to which what criminal +soever flies hath full protection." The privilege extended for a radius of +about a mile round the minster, and the limits were marked by stone +crosses. Infraction of the right of sanctuary was punishable by severe +penalties, and to take a refugee from the Fridstool was to incur both +secular and ecclesiastical penalties, the latter extending to +excommunication.[2] + +The widow of Edward IV. fled with her younger children for safety to the +sanctuary of Westminster after her eldest son had fallen into the keeping +of the Duke of Gloucester. Sir Thomas More reports the discussion in the +Council of the Protector, and the arguments used by Cardinal Bourchier, +which induced the queen to give up the Duke of York. The boy king, who was +never crowned, and his brother were murdered in the Tower. It is +noteworthy that this unfortunate monarch was born in the sanctuary of +Westminster when his father was in exile. Skelton, the poet, died in this +same sanctuary. + +The privileges of the sanctuary were not always respected. When Geoffrey, +Archbishop of York, took refuge in St. Martin's Priory, Dover, he was +dragged from the altar in his pontifical robes by order of the bishop of +Ely, who was then Chancellor of the Kingdom. But this arbitrary proceeding +was not the least of the causes of the downfall of William of Longchamp. +When William Longbeard, who had been condemned to death, took sanctuary at +St. Mary-le-Bow, Hubert de Burgh ordered the church tower to be set on +fire to compel him to come forth. Longbeard abandoned his place of refuge, +and was dragged to Tyburn, and there hanged. But although de Burgh was +Archbishop of Canterbury and Justiciary of the Kingdom, and the Church was +his own peculiar, his violation of sanctuary led to the loss of his great +secular dignity. Later, when he had himself to seek refuge, a great debate +arose as to his having been forcibly taken from a sanctuary, and he was +restored to its protection, and escaped to Wales. + +Whilst the same rights of sanctuary existed in Ireland and in Wales, they +were apparently not made use of to any great extent. In Scotland, the +churches of Wedale, near Galashiels, and of Lesmahagow, near Lanark, were +the most famous of the religious sanctuaries. The latter had also a royal +charter from David I. These sanctuaries ended with the Reformation. The +abbey of Holyrood and its precincts, which include Arthur's Seat and the +Queen's Park, gave protection to debtors until, by the abolition of +imprisonment for debt, its privileges ceased to have any meaning. One of +those who thus sought refuge at Holyrood during a part of his career was +Thomas de Quincey. + +Sanctuaries probably served a useful purpose in ages when the law was +harsh and indiscriminate in its punishment of offenders. The limited +protection afforded by the Church sanctuaries at least gave an opportunity +for the first heat of revengeful feeling to subside, and the greater +sanctuaries protected not merely vulgar offenders, but those whom the +stormy tide of politics had placed at the mercy of their enemies. As the +law became stronger, and the course of justice more certain, the need for +these refuges ended, and those that continued were public nuisances, and +mere centres of crime and anarchy, such as Scott has described for us in +his picture of Alsatia. We may be thankful that sanctuaries are now merely +objects of antiquarian interest and speculation. + + + + +Trials in Superstitious Ages. + +BY ERNEST H. RANN. + + +In superstitious ages, when belief in the power of the law to adjust all +quarrels, to hold the balance equally between man and man, and to accord +to each one his rights, was less prevalent than it is at the present day, +disputants naturally resorted to other tribunals for the settlement of +their claims. A perfect system of law was impossible; what law existed was +arbitrarily administered, often for the benefit of the most powerful +litigant, and the claimant with only justice on his side often had the +mortification of seeing a verdict given against him. During the +development of a system of law-giving, when the accumulated experience of +humanity had not sufficed to produce perfection, man in his darkness, his +ignorance, and superstition, turned to the supernatural, and devised +certain ceremonies by which the judgment of God might be evoked to +demonstrate the guilt or innocence of the accused. + +The antiquity of the ordeal, as it was called, cannot be measured. Such a +form of trial is found to have existed in the earliest ages, and even now +traces of it linger among savage tribes of the earth. In Africa especially +the ordeal is well known. During his travels among the negro tribes north +of the Zambesi, Dr. Livingstone encountered the curious practice of the +"mauvi," which consisted of making all the women of a tribe drink an +infusion of "goho," for the purpose of ascertaining which of them had +bewitched a particular man. The accused women were drawn up in a row +before the hut of the king, and the draught administered to them. Those +who were unable to retain the horrible decoction, and vomited, were +considered innocent of the charge: those who were purged were adjudged +guilty, and put to death by burning. + +The Calabar bean is also used by the natives of Africa in the form of an +emulsion as an ordeal for persons accused of witchcraft, proof of +innocence consisting of ability to throw off the poison by vomiting. Among +the Barotse tribes the process is conducted by deputy, the testing liquid +being poured down the throat of a dog or cat, and the accused person being +treated according to the effect produced on the animal. Among the Dyak +tribes lumps of salt are thrown into a bowl of water by the accuser and +accused, and judgment is given against the owner whose lump disappears +first. Another method adopted by the Dyaks is for each of the two parties +to choose a mollusc, and to squeeze over it a few drops of lime-juice; the +owner of the mollusc which moves first under the acid stimulant losing the +case. Ratzel mentions that among the Malay tribes ordeals by fire, +ducking, pulling a ring out of boiling water, or licking red-hot iron, are +still frequent. Where the ordeal fails to produce the desired result, +wager of battel, in reality another form of ordeal, is resorted to. Among +the Tagals it is usual to light a consecrated candle, and to consider the +person guilty of the crime under consideration to whom the candle flame is +blown during the performance of the ceremony. The Igorrotes have a more +painful method of fixing guilt. The accuser and the accused are placed +together; the backs of their heads are scratched with a sharply-pointed +bamboo stick, and the man who loses most blood also loses his case. + +In Hawaii ordeals are administered by the priests, the suspected person +being compelled to hold his hands over consecrated water, and adjudged +guilty if the liquid trembles in the vessel while the priest looks at him. +The Siamese have a form of ordeal which consists of making the two parties +to a suit swallow consecrated purgative pills, the man who retains them +for the greater length of time winning the case. + +Even among the comparatively enlightened races of the peninsula of India, +ordeals of the most elaborate and curious character are practised at the +present time. Warren Hastings mentions that in his day no fewer than nine +forms were in use among the Hindoos. The ordeal of the balance was +commonly employed, and is still in force in certain districts. The beam is +adjusted, and both scales made perfectly even. After the accused has been +bathed in sacred water, and the deities worshipped, he is placed in the +scale-pan and carefully weighed. When he is taken out the Pandits +pronounce an incantation, and place round his head a piece of paper +setting forth the charge against him. Six minutes later he again enters +the scale, and the balance is called upon to show his fault or innocence. +If he weigh more than before, he is held guilty; if less, innocent; if +exactly the same, he must be weighed a third time, when, according to the +_Mitacshera_, a difference in his weight will be observable. Should the +balance break down, the mishap would be considered as proof of the man's +guilt. + +The ordeal of the balance is not altogether unknown in English history, +for an incident is recorded in which Susannah Haynokes, of Aylesbury, was +accused of bewitching her neighbour's spinning-wheel, and preventing it +from working properly. Susannah loudly protested her innocence, and +demanded an ordeal to prove it. She was taken to the church, and weighed +in a semi-nude condition against a copy of the Bible, and being able to +outweigh the Scriptures, was considered to be innocent of the offence +charged against her. Possibly it never occurred to the owner of the +spinning-wheel that lack of oil was the cause of its refusal to go round. + +Among other ordeals in use by the Hindoos is that of iron, the accused +being required to lick a red-hot bar of the metal. If his tongue be burnt, +he is considered guilty, if not, he is reckoned innocent, but it cannot be +supposed that among tribes addicted to this practice the injury to the +tongue is considered sufficient punishment for the offence with which the +suspect is charged. The poison ordeal, employed also, it may be noted, by +the Hovas of Madagascar, is commonly practised. A small quantity of +_vishanaga_, a poisonous root, is mixed with clarified butter, which the +accused must eat from the hand of a Brahman. If the poison produce no +visible effect, he is absolved; otherwise, condemned. In other cases the +hooded snake called _naga_ is placed in a deep earthen pot, from which the +accused has to take a ring, seal, or coin without being bitten, when he is +considered innocent. In trial by the Cosha the accused is made to drink +three draughts of water in which images of the Sun, of Devi, and other +deities have been washed. If, within fourteen days, he is afflicted with +any form of sickness, he is considered guilty. + +For the fire ordeal an excavation is made in the ground, and filled with +burning pippal wood. Into this a person must walk bare-footed without hurt +in order to prove his innocence. Hot oil ordeals are also in force, when +the accused has to thrust his hand into the liquid without being burned; +and chewing a grain of consecrated rice, which, if it comes from the man's +mouth dry or stained with blood, is considered proof of his guilt. At +other times a silver image of the Genius of Justice, called _Dharma_, is +thrown with an image of iron or clay, called _Adharma_, into an earthen +jar; and the accused is acquitted if he bring out the silver image, but +condemned if he draw forth the iron. + +The history of the middle ages furnishes numerous examples of ordeals +employed in the settlement of disputes, which in the absence of a strong +and impartial system of law-giving, found great favour with the people of +all ranks. They were peculiarly distinguished by the appellation of +_Judicium Dei_, or judgments of God, and sometimes called _vulgaris +purgatio_. The law of the Church sanctioned the ordeal throughout Europe +for a considerable period, and faculties were freely given by the clergy +for the performance of these strange ceremonials. Indeed, the whole +business, as a judgment of God, was frequently conducted by the servants +of the Church, always in consecrated ground, and the sacred edifice itself +was occasionally requisitioned in order to add greater solemnity to the +proceedings. The ordeal of fire, practised, curiously enough, by the +Greeks in the time of Sophocles, was allowed only to persons of high rank. +The accused was required to carry a piece of red-hot iron for some +distance in his hand, or to walk nine feet, bare-footed and blind-fold, +over red-hot ploughshares. The hands or feet were then immediately bound +up, and inspected three days afterwards. If, on examination, no injury was +visible, the accused was considered innocent; if traces of the burning +remained, he was reckoned guilty, and received punishment commensurate +with his offence, without any discount for the harm he had already +suffered. + +The most notable historic instance of this form of ordeal is that of Queen +Emma, mother of Edward the Confessor. She was accused of a criminal +intrigue with Alwyn, Bishop of Winchester, and condemned to the ordeal of +fire, which, on this particular occasion, took the form of nine red-hot +ploughshares, laid lengthwise at irregular intervals, over which she was +required to walk with bandaged eyes. She passed successfully through the +severe trial, and at the conclusion innocently asked when the ordeal was +about to begin. The Queen's innocence was, to the popular mind, +established more substantially than would have been possible in any +existing court of law. She was not the only gainer by the restoration of +her reputation, for in consideration of the success which had attended +her, she settled twenty-one manors on the Bishopric and Church of +Winchester. + +In the Eastern Empire the fire ordeal was largely used by the Emperor +Theodore Lascoris for the discovery of the origin of the sickness with +which he was afflicted. His majesty attributed the malady to magic, and +all suspected persons were required to handle red-hot iron in order to +establish their guilt or innocence, "thus joining," as an ancient scribe +exclaims, "to the most dubious crime in the world the most dubious proof +of innocence." + +Fire, as we have said, was employed for persons of high rank: those of +baser degree, especially bondsmen and rustics, were tried by the ordeal of +boiling water. "I will go through fire and water for my friend" was a +common expression in the middle ages, and, though having lost its original +significance, the saying has persisted to the present time as a +declaration of self-sacrifice. The accused person was required to take a +stone from a pan of boiling water, to insert the hand and wrist into the +liquid, and in case of the triple ordeal, to plunge the arm in up to the +elbow. When cold water was employed, and in cases of witchcraft this was +generally resorted to, the suspect was flung into a river or pond. If he +floated without appearance of swimming, he was pronounced innocent; if he +sank, he was condemned as guilty--rather a superfluous proceeding, +considering that the man was in all probability already drowned. + +It would be going too far to assert that in all cases these ordeals were +carried out with the strictest impartiality and consideration for the ends +of justice. Means were not unknown to circumvent the peculiar forms of the +trial, and precautions were often taken by the clergy, as might have been +done in the case of Queen Emma, to protect those whom they desired to +clear of suspicion. It is a well-known fact that white-hot iron may be +licked with impunity, and the Mevleheh dervishes are proficient in the +trick of holding red-hot iron between their teeth. Sometimes cold iron, +painted red, was employed, and at others the fire reduced in temperature +at the critical moment, the suspect receiving only such injury as would +heal in the three days allowed before his hand was examined. Artificial +preparations were frequently employed, while the suspect had at times the +option of going alone into the church, and in all cases of keeping the +crowd of spectators at a distance, which made minute inspection of the +proceedings impossible. + +Another form of ordeal was the _judicium crucis_, or trial of the Cross, +employed largely in criminal cases. When an accused person had declared +his innocence on oath, and appealed to the judgment of the Cross, two +sticks were prepared precisely like one another. The figure of the Cross +was cut upon one of these sticks, and the other left blank. Each of them +was wrapped in fine white wool, and laid upon the altar or the relics of +the saints, after which a prayer was uttered that God might discover by +unmistakable signs whether the prisoner was innocent or guilty. The priest +then approached the altar, took up one of the sticks, and uncovered it. If +it happened to be the stick marked with the cross, the prisoner was +pronounced innocent; if it were the other, he was condemned as guilty. A +different form of this ordeal was adopted when the judgment of the Cross +was invoked in civil cases. The judges and all parties to the suit +assembled in the church. Representatives, generally the youngest and +strongest priests, were then chosen, and required to stand one on each +side of a crucifix. At a given signal they stretched out their arms at +full length, so as to form a cross with their body, and in this painful +posture they continued to stand during divine service. The party whose +representative dropped his arms first, or shifted his position, lost his +cause. History records a dispute over a monastery, between the Bishop of +Paris and the Abbot of St. Denis, which was settled in this manner. A +crowd assembled, and arranged bets on the result, but those who supported +the Bishop's man were sadly disappointed, for he dropped his arms at an +early stage, and lost the cause of his employer. The ordeal of the Cross +was abolished by Louis de Debonnaire in 816, on the ground that it was +irreverent in character. + +Ecclesiasticism also played a prominent part in the ordeal of the +corsnedd, to which persons accused of robbery had to submit. The corsnedd +was a piece of bread made of unleavened barley, to which cheese made of +ewe's milk in the month of May was added. Over the whole, one ounce in +weight, a form of exorcism was uttered, desiring of the Almighty that the +corsnedd might cause convulsions and paleness, and find no passage, if the +man were really guilty, but might turn to health and nourishment if he +were innocent. The practice is strongly remindful of the trial of jealousy +in use among the Israelites, by which an unfaithful woman was compelled to +drink holy water containing dust of the floor of the tabernacle, the +belief being that she would be stricken with illness if she were guilty. +The corsnedd was given to the suspected person, who at the same time read +the sacrament. Godwin, Earl of Kent, was, in the reign of Edward the +Confessor, accused of murder, and forced to the ordeal of the corsnedd, +when, according to ancient chroniclers, the consecrated food stuck in his +throat, and caused his death. Both the expressions, "I will take the +sacrament upon it," and "May this morsel be my last," are supposed to have +been derived from this curious form of law-giving. A somewhat similar +custom is in vogue in Russia at the present day. Balls of bread are made +and dropped into consecrated water, the priest meanwhile reciting the +formula:--"Ivan Ivanoff, if you are guilty, as this ball falls to the +bottom, so your soul will fall into hell." As a rule the culprit confesses +immediately. In Ceylon, also, a similar form of ordeal is by no means +unusual. A man suspected of theft is required to bring the person he +holds in greatest affection before the judge, and placing a heavy stone on +the head of his substitute, say, "May this stone crush thee to death if I +am guilty of the offence." The Tartar sets a wild bear and a hatchet +before the tribunal, saying as he does so, "May the bear devour me, and +the hatchet chop off my head, if I am guilty of the crime laid to my +charge." + +Another form of ordeal which was cherished and practised with assiduity +was that of the bier, founded on the belief that the body of a murdered +man would show signs, by bleeding or movement, when his assassin +approached. The accused had to place his hand on the naked breast of the +corpse, and declare his innocence, though the slightest change in the body +was considered proof of his guiltiness. This method of finding out +murderers had its origin, it is believed, in Denmark, where it was in the +first instance adopted by King Christian II. for the discovery of the +murderer of one of his courtly followers. The belief has survived to a +certain extent to the present day, for even English peasants still expect +all persons present at a funeral to touch the body in proof of their +bearing no ill-will towards the dead man. + +Not so frequently employed, but still occasionally met with in ancient +history, was the ordeal of compurgation, where the innocence of the +accused was sworn to by his friends, and judgment went against the party +whose kindred refused to come forward, or who failed to provide the +necessary number of compurgators. It was a conflict of numerical strength, +and the higher number carried the day. + +Another custom, still surviving, was to tie a key in a Bible opened at +Psalm L, verse 18, "When thou sawest a thief, then thou consentedst with +him," and balance the whole, the belief being that the book would turn in +the hands of a guilty person. + +Challenging the accuser to mortal combat was a proceeding which found much +favour with the warlike spirit of the middle ages. Of course it was +considered that Providence would defend the right, even if a miracle were +needful, but nevertheless each party placed considerable reliance on his +own strength of arm and fighting skill. These judicial combats were in +ancient times practised among the Jews, and were also common in Germany in +remote ages, though they do not find mention in Anglo-Saxon laws, and +were apparently not in use in England until after the Norman Conquest. In +Germany a bier was placed in the midst of the lists, accuser and accused +stood respectively at the head and foot, and remained for some minutes in +profound silence before they commenced fighting. Civil, criminal, and +military cases were, in the absence of sufficient direct evidence, decided +by means of the judicial combat or wager of battel. The offended party had +the right to challenge his accuser to settle the dispute by force of arms, +and the forms and ceremonies connected with the trial are well illustrated +in the opening scenes of "King Richard II." The combat took place in the +presence of the court itself, Heaven being expected to give the victory to +the innocent or injured party. It was commonly resorted to in charges of +treason, as in the above-mentioned dispute between Henry Bolingbroke and +Thomas Mowbray, when the ceremonies were of an imposing character. As in +the majority of ordeals, deputies could be chosen to perform the requisite +duties, but the principals were in all cases answerable for the +consequences. No commoner was allowed to challenge a peer of the realm, +nor could the citizens of London, for some obscure reason, indulge in +these popular forms of legal administration. Each of the combatants +professed his willingness to make good his claims, body for body-- + + "For what I speak + My body shall make good upon this earth, + Or my divine soul answer it in heaven." + +Neither sorcery nor witchcraft had to be employed, and the battel was to +continue until the shades of evening had fallen, and the stars appeared. +If the accused were killed, his blood was attainted, but if he were only +vanquished, he was immediately condemned to an ignominious death by +hanging, providing he accepted his fate without demur. The defeated party, +however, might crave his life, in which case he was allowed to live as a +recreant, on condition that he retracted unreservedly the false statements +that he had sworn. + +At the Durham Assizes, on August 6, 1638, a wager of battel was offered +and accepted, for deciding the rights to land at Thickley, between Ralph +Claxton, demandant, and Richard Lilburne, tenant. According to an old +chronicle, "the defendant appeared at 10 o'clock in the forenoon, by his +attorney, and brought in his champion, George Cheney, in full array, with +his stave and sandbag, who threw down his gauntlet on the floor of the +court, with five small pieces of coin in it. The tenant then introduced +his champion, William Peverell, armed in the same manner, who also threw +down his gage." But the champions, instead of being allowed to fight, were +ordered to appear at the Court of Pleas in the following month. Legal +arguments followed, and the trial by battel was eventually postponed +indefinitely. + +In criminal trials no deputies were allowed, and the parties were +compelled to settle their quarrel in person, unless one of them was a +woman, an infant, or a man over the age of sixty, or was afflicted with +lameness or blindness. In the case of any of these disqualifications, +trial by jury could be claimed and insisted upon. One of the most +remarkable wagers of battel occurred in 1817. A young woman named Mary +Ashford, living at Erdington, near Birmingham, was supposed to have been +murdered early one morning when returning from a dance. Suspicion fell on +Abraham Thornton, a partner of the previous night, who was tried for the +crime and acquitted. Evidence for another trial was collected, and +Thornton was _appealed_ by William Ashford, the direct heir male of the +murdered woman. But when the proceedings commenced, Thornton's counsel +took refuge under a very old Act, by which no man could be tried on a +second charge of murder, on which he had been acquitted, except by wager +of battel before the king, between the heir-at-law of the person murdered +and the accused. The appellant, Mary Ashford's brother, declined the +combat on the ground of physical inferiority, and Thornton was discharged. +Immediately afterwards the antiquated law was removed from the Statute +Book. + +This marked the end of trials by ordeal as recognised by law. The process +of extermination had long been in progress, but popular opinion was +against reform, and certain of these curious customs survived. Although +the clergy had at first taken part in these ceremonials, and presided over +them in church, they came in time to discountenance them. The canon law +declared against ordeals as being the work of the Devil, and a decree to +this effect was issued in the eighteenth canon of the fourth Lateran +Council in November, 1215. Upon this authority it was thought proper, +says Blackstone (as had been done in Denmark a century ago), "to disuse +and abolish these trials entirely in our courts of justice by an Act of +Parliament, Henry III., according to Sir Edward Coke, or rather by an +order of the King in Council." The actual date of the abolition of ordeals +by fire and water was 1261. On the Continent these forms of trial had been +abolished by civil and ecclesiastical law much earlier, although in 1498 +an attempt was made to test the doctrine of Savonarola by means of a +challenge from one of his disciples to a Franciscan friar to walk through +a pile of burning wood. Old customs die hard, and the incident is a +curious and interesting instance of the persistence of a popular form of +trial even among the members of a party by which it had been condemned. + + + + +On Symbols. + +BY GEORGE NEILSON. + + +The wayward fancies of mankind are well illustrated in the diversity of +symbolic observances, some never losing their meaning, some absolutely +unintelligible in their historic form, and some as much characterised by a +befitting dignity, as others are by the want of it. All once were +self-explanatory and possessed a measure of propriety proportioned to the +state of the people amidst whom they originated. But tradition is long, +centuries elapse, each modifying a ceremony, and when the procedure +emerges within the knowledge of record, it has often so lost touch with +its surroundings, that it is hopeless to speculate how it arose. + +Symbols are drawn from and applied to every field of human activity. Of +course in a general sense man expresses himself only so, and a regular +alphabet is but a comparatively trifling advance on the language of signs. +What we call civilization, is at bottom little more than a clear +recognition of certain symbols of government. The Queen's crown, the +Judge's ermine, the Mayor's mace, what are they else? The sceptre is only +a glorified stick, of which the policeman's baton is a humbler shape. Each +embodies the great thought that behind it stands a nation's determination +to be ruled by law. + +In the history of law, symbol and the traces of symbol meet us at every +turn. The middle ages teemed with them. Roman law had bequeathed not a +few. Perhaps the most wondrous of them all is one that has long ceased to +have any legal connection, although its mark is all-powerful over +civilisation. How daring was the imagination which prompted the choice, +for the heraldic badge of Christianity, of the dread emblem of capital +punishment by crucifixion! In the pure domain of the law of the early and +middle ages, a perfect wilderness of symbols presents itself to eyes which +strive to explore the origins of institutions. + +Law is ever beset by a tendency towards formalism, and in early times a +severe insistence upon ceremony, no doubt, gave prominence and +prescriptive sanction to symbolic acts. Law and custom after all only mean +that the way things were done yesterday is the safest way of doing them +to-day. The acceptance of a common form implies a very large public +consent, which is equally necessary to its abrogation, once it is +accepted. No small part of its value lies in its certainty, "certainty +which," Coke well says, "is the mother of quiet and repose." + +Hence the fixity and longevity of many emblematic methods of performing +acts affecting status or property rights. The constitution or discharge of +slavery, or the transfer of a slave from one master to another, had a +variety of set forms. A freeman might deliver himself to serfage by +putting a leathern thong upon his neck. When a church was the donee, the +ceremony might take place at the altar, and the man present himself there +with cords round his throat. "Thus he offered himself," says an old +record, "to the Almighty Lord." A coin or two on the head was also a +customary part of the process. In the manumission or liberation of the +slave, these coins struck off the head served the purpose of declaring him +free, as did the companion symbol of open doors, or the placing him at +four cross roads, and bidding him go whither he would. Another common +symbol of enfranchisement was the delivery of an arrow, thought to denote +the right confined to freemen of bearing arms. + +Even a short account of legal symbols would make a very large treatise. +Single instances such as the ring, the staff, the glove, and the horn +would each furnish material for an elaborate monograph. The theme would +call for a discussion of the great war of investitures, and would touch +very many points of ecclesiastical, civil, and criminal law and history. +The scope of the present unambitious article is only directed to a few +illustrations in relation to the transfer of land, the act of divesting +the old proprietor and clothing the new with his rights. Although such +symbols usually had a connexion with the subject conveyed, there are many +types in which that connexion is not readily traceable. Why for example +amongst the Saxons should a resignation of all interest in an estate have +been made by a gesture with curved fingers? One can understand why a sod +should be so often a token, but why does the glove play so large a part in +Merovingian and Carolingian conveyancing? Was it, indeed, as German +scholars speculate, because the donor metaphorically took it off and the +donee put it on, making his the covered hand, the _vestita manus_, that +would defend the land conveyed? How came an eleventh century magnate to +attest his renunciation of justiciary rights to a monastery "by cutting +off the top of the silk band by which his fur robes were fastened to his +breast, and with that segment re-investing three monks therein?" In this +case a portion of that silken band was carefully sewn up, as an adminicle +of evidence, in the writ recording the transaction. How again came it that +a claim of feudal service might be departed from by the delivery and +placing of a wand (_virgula_) upon the altar? All these are much more +personal symbols than real. They are mainly guarantees of the grantor's +good faith. They do not seem to be primarily emblems of possession. The +contrast between these two classes will be best appreciated by considering +types of the latter. + +When a purchaser proceeded to set up fresh boundary marks, or to take a +spade and dig, or when he received delivery of a sod with grass or +shrubbery upon it, or lifted from the ground the charter granted by the +seller with amongst other things a sod laid thereon, the act of seisin, +the formal occupation is visibly completed. Of this class of symbol, the +sod (_cespes_) is probably the best and most typical for a few words of +illustration. We read of litigants laying judicial claim to land in the +mall or public court by putting their spears into a sod, representative of +the subject in dispute. We hear of the sods being cut in the shape of +bricks, and of their being preserved as memorials, with the twigs growing +in and incorporated with them. We hear of sods offered on the altar when +the grant of land was being made to a church. We hear of transfer from one +vassal to another being accomplished by the grantor delivering the sod to +the over-lord, and the latter passing it on to the grantee. + +Of all the symbols employed in connection with feoffments, however, the +rod (_festuca_) had the widest vogue on the continent. Not that it was +restricted to transactions in land; it was a more or less lineal +descendant of the Roman stipulation, a contract visibly expressed by the +parties breaking a straw between them. Under Charlemagne a renunciation by +certain priests was made by them "holding straws in their hands and +casting them from them before God and his angels." Later this appears as +a recognised method of renunciation, but with a rod substituted for the +straw. In some cases the fact of renunciation is emphasised by the rod +being not only thrown to the ground by the resigner, but trodden under +foot when there. The role of the _festuca_ was peculiarly important +amongst the Frankish peoples.[3] Galbert of Bruges, a Flemish twelfth +century historian, states that the counts of Flanders gave investitures to +their vassals, after receiving their fealty and homage, by a wand +(_virgula_) held in hand, and he has a dramatic passage describing how the +people of Bruges, in token of their renunciation of their feudal bond to +Hacket the castellan, "picking up bits of stick exfestucated their homage +and fealty," _i.e._ cast the rods from them, and so doing severed all +connexion with their former chief. + +In England and in Scotland, this rod symbol (_fustis et baculus_) also +played a large part. Bracton referred it specially to land without houses. +Tenure by the verge, a species of copyhold, had its name, we learn from +Littleton, from _un petite verge_, delivered by the old tenant to the +steward or bailiff of the manor, who re-delivered it to the new holder. +Jordan Fantosme tells us that when Brien, messenger of Ranulf Glanvil, in +1174, announced in Westminster the capture of the Scottish King at +Alnwick, Henry II. rewarded him for his good news by handing him a stick +(_bastuncel_), which vested him in ten librates of land. In Scotland the +feudal resignation by a vassal to his overlord for the re-investure of a +fresh owner was effected by "staff and baton" (_fustis et baculus_), and +references to those symbols occurred in every day conveyancing until far +into the present century. Indeed this picturesque ritual was, strictly +speaking, not abrogated, although made unnecessary, by the Act 8 and 9 +Victoria ch. 35. + +The commonest conveyancing symbol for land in England was the formal +delivery of turf or twig of the ground conveyed, made by a representative +of the grantor, to a representative of the grantee. The most familiar in +Scotland was the handing over of "earth and stone." This latter was the +normal form of seisin, and its history goes far back, not only in +Scotland, but on the continent as well. A curious Saxon legend attests +this. Widukind narrates that some Saxons, having landed from their ships +in Thuringia, one of them, wearing a golden torque and bracelets, met a +Thuringian, who asked if he would sell his ornaments. The sly Saxon +entered into an odd transaction; the Thuringian gave him in exchange for +his gold, a lapful of soil. The Thuringians rejoiced exceedingly over the +smart bargain their countryman had made, but changed their tune when soon +afterwards the Saxons claimed the land as theirs, purchased with their own +gold, and by force of arms made good the demand. + +Our chronicles have a good many stories about symbols. In the Norman +_Brevis Relatio_, a sketch of the origin of William the Conqueror, is told +of his grandfather, Duke Richard the Good, that once when staying at a +monastery, after prayer in the morning he laid a spindle on the altar. +Upon being asked what it meant, he named the manor which he had by so +homely a symbol bestowed for the good of his soul. When the infant William +came into the world, it was said,--and afterwards noted as prophetic--that +when they laid him down upon some straw, the little hands each clutched a +handful. Acquisitive tendencies were foreshadowed! The _Roman de Rou_ +tells that in 1066, when William landed in England, he stumbled and fell, +an omen which for the moment disconcerted his followers, but rising with a +shout, he swore by the splendour of God that with his two hands he had +taken possession of the land. Prompt to catch the occasion, one of his men +ran forward to a cottage, tore a handful of thatch from the roof, and +passed it to his chief, with the cry, "Receive this +seisin,"--quasi-ceremonial words which with William's pious, "God be with +me," the curious may compare with the formalities of English livery in +deed, as described (sec. 59), in Coke upon Littleton. + +The normal symbol of seisin for a house in England, was (before the Act 7 +and 8 Victoria ch., 76, superseded these archaic ceremonies), was the ring +or hasp of the door, known in Scotland for houses in burghs as "hasp and +staple." In the latter country also, there were a good many special types +of symbol characteristically appropriate to seisin in special kinds of +property. Thus for mills "clap and hopper," for fishings "net and coble," +for teinds (Anglice tithes) a sheaf of corn, for the patronage or +advowson of a church a psalm-book and keys, attained the figurative +purpose requisite. There were many others less familiar amongst them, one, +a hat, worthy of a few words all to itself. Our own generation may not +regard this as a particularly dignified symbol, but there is a cloud of +witnesses to shew its very various applicability. The priest's cap or +biretta was sometimes employed to instal him in a chaplainry or benefice. +And apart from the place of the hat in the regulations of the tilting +ring, it was occasionally used in Scotland as a symbol in connection with +what were known as heirship goods. But it had in the twelfth century been +accorded the very loftiest use to which secular symbolism could be turned. +In 1175, King William the Lion, taken prisoner the year before, +relinquished the independence of Scotland, and did homage to the English +King at York, as a condition of his liberation. The contemporary records +are silent regarding symbolic details, but in 1301 Edward I. stated in his +letter to the Pope that "in token of his fealty, William the King of +Scotland, had, on the altar of St. Peter's, at York, offered his cap +(_chappelus_), lance, and saddle, which until this day remain and are +preserved in said church." Any incredulity which a fair-minded Scot can +entertain, regarding this allegation that the freedom of his country was +once symbolically surrendered in King William's cap, will be materially +lessened, and Scottish patriotism so far consoled, by the recollection +that under very similar circumstances the realm of England was in 1193 +given away with the bonnet (_pilleus_) of the captive Richard I., who, +thus (as Hoveden tells us), gave investiture of his kingdom to his +arch-enemy, the Emperor Henry VI. This was, however, only formal: the +Emperor at once re-invested King Richard in his realm with a double crown +of gold, though subject to an annual tribute of L15,000--a business +transaction painfully illustrative of the Christian chivalry of the +Crusades. + +The annals of Scotland boast one instance of a royal symbol much more +regal than either of these two. About the beginning of the year 1124, King +Alexander I., restoring by charter to the Bishopric of St. Andrews an +extensive tract of land, completed the grant according to Andrew of +Wyntoun (vii., 5), in a truly stately fashion. He-- + + Gert than to the awtare bryng + Hys cumly sted off Araby + Sadelyd and brydelyd costlykly + Coveryd with a fayre mantlete + Off precyous and fyne welvet + Wyth his armwris off Turky + That pryncys than oysid generaly + And chesyd mast for thare delyte + Wyth scheld and spere off sylvyr qwhyt. + +It was a special occasion, for Bishop Robert's appointment, which had led +to the grant, was a Scottish victory over the pretensions of the See of +York. There is an appeal to the imagination so strong in the scene, that, +in spite of the interval of 300 years betwixt the event and this oldest +record of it, one is slow to offer any criticism on the charger; more +especially as the entire verity of the silver spear is corroborated by +Walter Bower's enshrining in his Scotichronicon the fact that in the +fifteenth century it was doing duty as the shaft of the cross in the +Cathedral. Yet the unexampled symbol, coupled with the analogy from York +in 1175, compels the suggestion, that perhaps during these 300 years an +original _capellus_ have been mis-read as _caballus_, or mistaken for +Scottish _capul_, and thus by the magic of mistranslation, a king's cap +_may_ have been transmuted into an Arab steed. + +Whilst of course a crown was the standard symbol of investiture for a +kingdom, inferior rights of principality were often typified by other +things, such as a sword, a spear, or a banner. And as feudal forms were +observed in the bestowal, so were they sometimes in the taking away. +England dispensed with several of her monarchs, but apparently in no case +was a deposition attended by the feudal solemnities. In Scotland when, in +1296, King John Balliol was pulled out of the throne by the same hands as +had placed him in it, Edward I. spared his vassal little of the indignity +of the situation. Balliol, deprived of his royal ornaments, with the +ermine stripped from his tabard, resigned his realm by the symbol of a +white wand. + + Than this Jhon tuk a quhyt wand + And gave wp in till Edwardis hand + Off this Kynryk all the rycht. + +No Scottish historian has noticed the absolute legal propriety of this, +and it is worth noticing. By contemporary law (_Britton_, ii., 22), _une +blaunche verge_ was the recognised symbol of disseisin by consent. The +thirteenth century was very particular, even in small things, about its +law. _Disseisin_, provided for by statute of 1429, in disputed successions +to real property, and known to Scotland as the breaking of seisin, was +symbolically affected--_frangendo discum_--by the curiously expressive act +of breaking a dish or dishes, with fire underneath. + + + + +Law under the Feudal System. + +BY CUMING WALTERS. + + +To the historian proper feudalism presents a wide subject with diverse +points of interest, but its legal aspect is comparatively a small matter, +and it can be considered without detailed reference to the whole vast +scheme which existed from early German and Gothic times, and overspread +the greater part of Europe. It is a common error to suppose that it was +introduced into England by the Normans. William the Conqueror only +superimposed a French form of feudalism upon that which already existed; +and all historians agree that the measures he adopted, the restrictions he +made, and the original conditions he established, were evidence of his +farseeing genius, and a masterpiece of statecraft. His was a feudalism +which, while giving the lords great personal power and influence, retained +them still as the servants of the king, and totally prevented them from +using their strength against the throne. In this respect the feudal +system in England never resembled that of Germany and France, or even that +which the Norman barons established in Scotland. The Conqueror had no +intention of allowing the owners of territory to supersede his own +authority, and to be beyond the sovereign's control. While, therefore, he +allowed them all liberty in dealing with their dependents, he made it +impossible for them to defy his own authority, first by distributing their +possessions so that they could not have a great army of followers at +command, and, secondly, by insisting upon a formal declaration of +allegiance from both the barons and their vassals. The former, therefore, +were not beyond the law, and the latter had nominally, if not actually, +some right of appeal to the monarch. These points it is necessary to bear +in mind for a full understanding of legal procedure during the long period +feudalism prevailed. + +The feudal lord's claims upon his vassals were numerous. First came his +claim to their military service. He could demand from them service as +assessors in his courts of various fines and payments and confiscations of +land. He could dispose of females in marriage; not infrequently he +consigned them to a debased existence. When the tenant was invested with +possession of his feud or fief, he paid homage to his lord, that is, he +proclaimed himself the "man" to help and to serve his master. Kneeling +humbly before the baron, he took oath of fealty, and practically enslaved +himself. It was here that King William showed his wisdom by ordaining that +the oath of allegiance should be not only to the feudal superior, but to +the monarch as the head of all, and thus he secured the ultimate service +of all vassals to the crown, and deprived the barons of autocratic power. + +The Saxon feudalism had been of the most tyrannical character, the owners +of slaves making their own laws, and carrying them out with the utmost +barbarism. Records exist which prove that for slight offences mistresses +were accustomed to order their servants to be scourged to death, or +subjected to fearful tortures. For breaking a dish, or spilling wine from +a cup, for example, a servant might have his ears cut off, his nose slit, +or suffer the loss of his hand, according to the caprice or fancy of his +lord or lady. While murderers and robbers could find sanctuary in the +Church, servants had no such refuge. They were torn away from the altar +to which they clung in their terror, and none could or would intervene to +protect them. According to the decree of King Ethelred, public punishments +were to be mild, and death sentences were seldom to be passed; but the +sovereign's wishes had no effect upon the treatment of bondmen. High-born +women were as cruel as their husbands, and King Ethelred's own mother is +said to have beaten him so severely when he was a child that he regarded +whipping instruments with horror to the end of his life. Flagellation was +not recognised as a legal punishment by the Saxons, though a husband might +beat his wife and incur no penalty, while the whipping of slaves was +accounted no more than the whipping of animals, and perhaps less. For all +other classes money-fines were almost the only authorised penalty, a fixed +price being set upon persons of different degrees. But the slave had no +real value, and hence could be mutilated or killed at the pleasure of his +lord. + +The ideal of feudalism, never realised in England, was that the king and +his tenants-in-chief should hold law-courts, which the tenant or the +sub-tenants should be bound to attend to have their cases tried according +to statute rules. But the system was only imperfectly carried out, and the +fact that the tenant-in-chief, or feudal lord, had the right to levy taxes +(called "tallage" or "tailles") on his vassels, speedily led to all sorts +of tyranny and abuse. Still, the feudal courts could not engross the +legislation for the excellent reason that the quick-witted Conqueror had +preserved the Witanagenot and the courts of the shire and the hundred to +check the barons. The latter made a big effort to introduce the +Continental system of feudalism, by which each of them would have been +supreme in his domain; but the plans were defeated as we have seen. +William's successors were men of a different stamp, and the system proved +unworkable in the hands of weaker men. "The prince," says Hume, "finding +that greater opposition was often made to him when he enforced the laws +than when he violated them, was apt to render his own will and pleasure +the sole rule of government, and on every emergency to consider the power +of the persons whom he might offend rather than the rights of those whom +he might injure." The mischievous course pleased none, and the royal +prerogative was at last systematically assailed by the barons in the time +of John, and the Magna Charta wrestled from him. The concessions then made +were of benefit to the barons rather than to the landless and dependent +classes, and it remained for the third Edward to diminish their power and +increase the liberties of the populace. + +Law in England during all this period was chiefly a system of oppression, +proceeding stage by stage from the highest to the lowest. The revenues of +the crown were obtained by extravagant rents, forfeits, taxes, reliefs, +fines, aids, and other devices which show the amazing ingenuity of the +extortioners. The result was that most tyrannical exactions were made in +turn by the feudal lords, and the dependents groaned for six centuries +under these lawless yet legalised oppressions. Personal property was at +the mercy of the lords, who adopted the most cruel means to enforce their +"rights." They, in turn, could be the victim of extortions, as was proved +in the case of Roger of Dudley, who was summoned to receive the honour of +knighthood in 1233. He found the honour so expensive that he declined to +appear, whereupon a writ was issued--"Because Roger de Someri, at the +feast of Pentecost last past, has not appeared before the King to be +girded with the military girdle, the Sheriff of Worcestershire is hereby +commanded to seize on the house of Dudley and all other lands of the said +Roger within his jurisdiction, for the King's use; and to keep them with +all the cattle found upon them, so that nothing may be moved off without +the King's permission." The same Roger had a twelve years' dispute with +William de Birmingham touching the service due for the manor of +Birmingham, for which the latter was required to perform the service of +eight knights' fees, a half and a fourth part, and also to do suit to the +court at Dudley once every three weeks. In such wise did these cheftains +rule. Another curious piece of law relating to the Dudley lands is told by +Leland:--"The lorde Powis, grauntfather that is now, being in a +controversy for asawte made upon hym goying to London by the lord Dudeley, +Dudeley castelle condesended by entreaty, that his son and heir should +mary the olde lorde of Dudleis' daughter." A very amiable method of +atoning for personal violence. + +The feudal lord had absolute power over his own family, as well as over +his dependents, the laws of household government being entirely of his +own devising and prompted by his passion, his ignorance, and his +wickedness. Robert de Belesme, Earl of Shropshire and of Arundel and +Shrewsbury, one of the most powerful and defiant barons of Norman times, +tore out the eyes of his own children when they had, in sport, hidden +their faces beneath his cloak. He cast his wife in a dungeon, heavily +fettered; but every night he sent his servants to drag her to his bed, and +in the morning sent her back to her prison. This torture he inflicted upon +her to gain money from her family. He disdained to allow his captives in +war to be ransomed, but impaled them, men and women, upon stakes. His +friends were terrified to approach him, for by way of pleasantry he would +engage them in merry chat and suddenly plunge his sword into their sides +with a loud laugh. No law could touch this man, and no avenger arose to +overcome him. The Warden of the Welsh and English Marches made also his +own laws, which were conceived in a spirit of the utmost cruelty. Border +foragers, for example, were cast into a dungeon, and subjected to the +punishment of having their right hands chopped off with the axe. This +prescribed penalty was often aggravated by additional torture or death. + +Feudalism was deep-rooted, so deep-rooted that not the enactments of all +the Normans and Plantagenets could do more than check its growth and +gradually ameliorate its severities. But while some of the old customs +were abolished, the bulk of the laws remained based upon the Anglo-Saxon +customs, so that as one writer has tersely explained, "the Land Laws and +Game Laws are derived from the Normans, the Common Law from the +Anglo-Saxons, and almost all our Statute Laws breathe the spirit of +pre-Norman England." To this Macaulay refers with ill-disguised scorn in +his History: "Our laws and customs have never been lost in general +irreparable ruin. With us the proceedings of the Middle Ages are still +valid precedents, and are still cited on the gravest occasions by the most +eminent statesmen.... Thus in our country the dearest interests of parties +have been staked on the results of the researches of antiquaries." The +historian, however, does admit that there is compensation for the +anomalies which result from this polity. "Other societies possess written +constitutions more symmetrical. But no other society has yet succeeded in +uniting revolution with prescription, progress with stability, the energy +of youth with the majesty of immemorial antiquity." That the spirit of +olden feudalism should sometimes be found surviving in modern laws is +inevitable. Villenage is extinguished, and yet in the very character of +certain classes, as well as in the operation of certain laws affecting +lands and personal privileges, we see a direct connection between the +submission of the bondman in the past to his hereditary master and the +readiness of the poor in the present to yield to one in higher station. +What struck the philosophic Emerson most, on his visit to England, was +that Englishmen should maintain their old customs, repeat the ceremonies +of the eleventh century, and consider in so many things that "antiquity of +usage is sanction enough." "The Middle Ages," he said, "still lurk in the +streets of London." + +The stocks and the whipping-post, which stood in front of every castle, +were the commonest instruments in use for the punishment of the ceorl and +villein who displeased their masters. For the ceorl, who could not quit +the land on which he was born, or free himself from slavery, life was +particularly hard. He could not absolve himself by money payments, like +the rest of his fellow-men, if once he gave offence; while the majority +could rob and murder and escape with a fine, the ceorl's slightest defect, +real or imagined, was punished with merciless rigour. Tithings and the +process of compurgation came to the assistance of other criminals, but the +ceorl could appeal to none, and expect neither pity nor aid. Such facts +give point to Emerson's dictum that "Castles are proud things, but 'tis +safest to be outside them." The villein was in a much happier state than +the ceorl. He was free against everybody except his lord, and the criminal +code accorded him the same privileges as a free man. The lord was even +liable to punishment for killing or mutilating his villein, and the +_Mirror of Justice_ in the thirteenth century laid down the fact that "the +villein is no serf in any sense of the word; he is a free man; his land is +a free tenure." But all this is largely comparative, and our estimate of +the advantages enjoyed by the villein must depend upon whether we view it +by the standards of the time, or by modern standards. At all events, while +the ceorl tasted all the bitterness of his serfdom, the adjudged felon in +other stations was able to obtain much leniency. The common form of oath +or abjuration in King Edward's time was this: "This heare, thou Sir +Coroner, that I am a robber and a murderer, and a fellow of our Lord the +King of England; and because I have done many such evils in his lande I do +abjure the lande of our Lord Edward, and I shall haste me towards the port +of ----, which thou hast given me, and that I shall not goe out of the +highway, and if I doe, I will that I be taken as a robber and a felon. And +that at such a place I will diligentlie seeke for passage, and I will +tarrie there but one ebbe and flood, if I can have passage; and unlesse I +can have it in such a place I will goe every day into the sea up to my +knees, assaying to pass over; and unlesse I can do this within fortie days +I will put myselfe again into the Church as a robber and a felon, so God +me helpe and his holy judgment." But King Richard showed no disposition to +put so much trust in the honour of these gentry, and when setting out for +Palestine, he made a law against peculating sailors, which was calculated +to dismay them: "Whosoever is convicted of theft shall have his head +shaved, melted pitch poured upon it, and the feathers from a pillow shaken +over it, that he may be known; and shall be put on shore on the first +land which the ship touches." This punishment reminds us of a modern +American institution. + +The law of "Englishry" deserves a passing note. It dates back to the time +of Canute, and was continued by the Normans. When Canute sent away the +greater portion of his Danish troops, "the Witan pledged themselves that +the rest should be safe in life and limb, and that any Englishman who +killed any of them should suffer punishment. If the murderer could not be +discovered, the township or hundred was fined." The proud and tyrannical +Normans used this law to their own advantage. A mere Englishman being a +vassal, and of no importance, could be killed with impunity, but it was +ordained that when a man was found killed, and evidence was not brought to +prove that he was English, he should be held to be a Frenchman, so that a +penalty could be imposed upon the township. This law of "Englishry" is +often illustrated in old chronicles. Men were found murdered by the +roadside, on heaths, and in woods; the chronicles state that "no Englishry +was proved," and the towns were accordingly amerced. The "Frankpledge" was +not so feudal in character, though it was based upon the principle that +"every landless man shall have a lord who shall answer for his appearance +in the courts of law." The custom prevailed before the Conquest, ten men +forming a "tithing," the members of which were answerable each for others. +The present Court Leet is a survival of the system, though in a very +modified form. + +The feudalism which the Norman barons imposed upon Scotland, and which was +unchecked by King William, so that it reproduced all the evils of the +ferocious Continental system, was marked by terrible excesses. No +institution was more shameful and abhorrent, or so vividly reveals the +baseness to which unrestricted feudalism sank, than the horrible depravity +of maiden-rights, or _droits de seigneur_. Beaumont and Fletcher founded +upon the historic incidents their drama of "The Custom of the Country," +and though a few mild attempts have been made to throw doubt upon the +facts, there is no question that these domestic tyrannies spread rapidly +from Scotland to France and Germany, and took numerous odious forms. Isaac +Disraeli, in his "Curiosities," devotes a chapter to the subject, which +can scarcely be dealt with in detail in a work appealing to the general +reader. The shameful institution was abolished by Malcolm III., who, +however, put the matter upon a business basis by ordering that it should +be redeemed by a quit-rent. But the lord still considered himself +privileged to manifest his authority over his vassals by thrusting his +booted leg into the bed of a newly-married couple, or by sousing the +bridegroom in a river. The wardships enjoyed by the feudal lords were +equally absurd, one of their favourite methods of raising money being to +arrange an unsuitable marriage, and on the refusal of the persons to carry +out the contract, to claim the revenue of the wards' estate as "forfeit." +The feudal lord could sell his vassals as he did his animals, and they +were often bartered away with fields and houses. The value of a serf was +roughly apprised as four times that of an ox, and he could also be used as +"live money." + +Mr. Ruskin, in his third letter in "Fors Clavigera," gives an account of +the laws promulgated by King Richard, Coeur de Lion, whom he declared to +be the truest representative of the British "Squire," under all the +significances of that name. The ideal lord was an admixture of the +patriarch and the tyrant, and if we examine Richard's legislation, and +endeavour to recognise the objects he had in view, we see that with a +considerable amount of selfishness he also possessed a real wish to add to +the welfare of his people. He simplified and adjusted the weights and +measures of the country to put an end to cheating, and he took severe +measures "to prevent the extortions of the Jews." If the people would be +honest, he was quite willing to do the fighting for them; if they made +good cloth, he was ready to see that they got good pay; and when they +bought and sold, he was determined that each should give the other good +measure. But with much power comes caprice, and the feudal lords too soon +forgot the interests of their dependents in serving their own ends. The +English barons never made the formal claim of the German barons to rob on +the highways in their own territories, though, without asserting the +right, they frequently performed the act. A case in point is that of +William de Birmingham, who so late as the sixteenth century went out with +a hundred men to molest and rob travellers on foot. The ordinary laws were +unequal to calling them to account for these misdeeds; nothing but +conquest by battle could have checked them. Besides, there were Lord +Palatines whose rule in their own domains was equal to that of the +sovereigns, and they could make or abrogate laws at will. These kings _in +petto_ appointed their own judges and courts, could reverse sentences, +pardon at will for any crime, and indict at pleasure. Offences committed +in the County Palatine were said to be "against the peace" of the lord, +and not against the peace of the king, and it was with a rod of iron that +these despots governed the territory allotted to them. Still there was a +show of legality in this. It differed from the wanton caprice of Geoffrey +of Coventry, who oppressed the inhabitants, was amenable to no law for so +doing, but consented to remit the burdensome taxes if his wife would ride +naked through the streets. As a specimen of the barbarous humour of these +lords, the Godiva story is instructive. + +At the end of King Stephen's troublous reign, there were eleven hundred +and fifteen castles in England, each of them a centre of power, at that +particular time almost absolute. The wise provisions of the Conqueror had +to some extent been overcome, and the feudal lords had become so +unmanageable that Henry II. found himself compelled to stipulate for the +destruction of a number of the strongholds. At the same time he prevented +the erection of others except by royal licence, and so began to limit the +oppression which had prevailed. We find, too, that in consequence of the +frequent over-riding of the common law by men in authority, the monarch +reserved to himself more and more of sovereign power, "by which," says Sir +Robert Filmer in his famous "Patriarcha"--answered by John Locke in the +still more famous treatises on Civil Government--"he did supply the want +or correct the rigour of the common law, because the positive law, being +grounded upon that which happens for the most part, cannot forsee every +particular which time and experience bring forth. Already sundry things do +fall out," he continues later, "both in war and peace, that require +extraordinary help ... so that rare matters do grow up meet to be referred +to the absolute authority of the prince." We find such a case in the time +of Richard II., when, on a question of freehold, the appeal went direct to +the king because "of maintenance, oppression, or other outrages the common +law cannot have duly her course." + +How the lords could avoid and defy the common law is proved by two curious +instances in the history of the Dudleys, the family previously referred +to. Lord Edward Dudley, in 1592, had a dispute with the neighbouring +Lyttelton family, and raising some 150 persons, he went one night and +stole all the cattle on the latter's estate. Lyttelton obtained judgment +against Dudley, who was ordered to return the cattle, but he posted his +servants at the gates, and bade them cut the bailiffs to pieces. Lyttelton +then armed sixty men and took the cattle back by force; Dudley armed 700 +men to fetch them back and kill them. For this offence the nobleman and +eighty followers were indicted, but by one means and another the +proceedings were made to last four years, and then an agreement was +entered into by the parties. Lord Edward's son, Ferdinando, was the hero +of the next exploit. He purchased the property of an oppressed widow, +named Martha Grovenor, for L1200, but only paid L100. She sued him in the +Exchequer for the remainder, and obtained judgment for the balance. No +notice was taken of this. The following year the widow obtained a second +decree, and this again was ignored. His lordship was next called upon for +costs, and this led him to make an effort to compromise the matter. He +entered into an agreement to pay all arrears and costs, but, having done +so much, refused to fulfil his obligations. An execution of ejectment was +then levied against his lordship. This he avoided for nine years, and it +was only twelve years after negotiations had begun that the widow was able +to obtain her dues. + +A very brief glance at Continental feudalism and its influence upon +statute law may now be given. It enables us to mark some of the +differences between the English and the foreign systems, the one with its +restrictions and the other all-powerful. In the eleventh century, all +France and the German Empire were one vast feudal possession. The powers +of the lords have been classed by the historian Hallam as follows--First, +the right of coining money; second, that of waging private war; third, +exemption from all public tributes except the feudal aids; fourth, freedom +from legislative control; and fifth, the exclusive exercise of original +judicature in their dominions. It is easy to perceive how, with these +initial powers conceded, the seigneurs were enabled to make themselves the +veritable masters of the kingdom. In Germany the lawlessness of the +barons became as proverbial as did their cruelty towards their slaves. The +whole country was divided up into territories over which the feudal chiefs +reigned as absolute and despotic kings. Nor is the spirit of feudalism in +that country yet extinct, for, unlike France, it has not had its bloody +revolt against "aristocrats." No one can have travelled in Germany and +seen the castle towering high on crag or rock, and the diminutive houses +scattered about its base, without realising at a glance how the chieftains +and their serfs lived in the old days. In Germany the feudal system was +seen at its strongest and its worst, and law was paralysed while the men +of lust and blood were supreme in their own dominions. Austria has a +similar story to tell of barbarity towards serfs, and the abrogation of +law by powerful chieftains. But it is remarkable that in Russia, where the +feudal spirit still most strongly survives, and is marked by many excesses +utterly repugnant to the feeling and customs of the times, the earliest +attempts to establish a feudal system were quelled by the princes. In this +land, where a mistress might, until recently, have her maid whipped to +death for dropping a teacup, or for any other trivial offence, real or +imagined, where again it was taken for granted that + + "A Count carbonadoes + His ignorant serfs with the knout," + +feudalism, once instituted, deepened its hold with the progress of years. +While there was no law for the lower classes, save that dictated by the +caprice of their masters, there were special exemptions and priveleges for +the noble and wealthy. The Russian lords pay no taxes, and they retain, in +almost undiminished force, that power to abuse, insult, and destroy the +peasantry which was possessed by the _ancienne noblesse_ of France before +the Revolution. Mr. Morley Roberts, in one of his Russian historical +sketches, relates that not long ago a noble threw a Hebrew into a dungeon +for an offence, and a week later asked his jaeger what had become of him. +"Oh," said the fellow with a laugh, "he made so much noise that I shot +him." + +The state of Bohemia from the ninth to the fourteenth century shows to +what deplorable depths a race may sink under an unrestrained and +licentious feudalism. The Bohemian nobles practically abolished the +marriage laws, and in addition to oppressing their dependents, frequently +sold them into slavery. When St. Adalbert endeavoured to effect a +reformation, he found every impediment put in his way, and his wishes +openly defied. He had a horror of bloodshed, and preached the hatefulness +of murder. By way of response, a man, whose wife had been put in a nunnery +to save her from his brutality, was dragged out and butchered in the +streets. Adalbert had to wait long before he could influence these men +who, secure in their castles, could indulge their rapacity without fear of +punishment. Reforms, effected in the tenth century, however, were not +permanent, and in the twelfth century the nobles had succeeded in +converting the local assembly, with its power of appointing judges, to +their own uses. Mr. Edmund Maurice, in his history of Bohemia, relates +that the nobles began to secure the judgeships for themselves, and then +sold or bequeathed the offices to heirs. They thus made the appointments a +means of tyranny and a source of profit, and with the money acquired +purchased the lands of freemen. Others, owing to the unpopularity of the +local tribunals, strengthened the power of their own feudal courts, and +again reduced their dependents to abject slavery. + +"The coolness," says Mr. Maurice, "with which many of the grants of land +transferred workmen of various kinds as mere appendages of fields and +fishponds, is in itself a proof of the degraded position to which the +peasant class had been reduced; and the fact that military service seemed +one of the few means of escaping from serfdom, led the peasants to favour +those wars which in the end increased their misery." Eventually King +Wenceslas, famed in ballad, and still more famed in Bohemian history, came +to the rescue, and ordained "that no baron or noble of the land shall have +power in the city of Bruenn, or shall do any violence in it, or shall +detain anyone, without the license and proclamation of the judge of the +city." + +The wide survey we have taken enables a fair estimate to be made of the +state of the law in Europe when the castle was the court of justice, and +the baron was the judge. England alone of all Europeon countries seems to +have been able to place a check upon the more flagrant abuses, and in +later times of reform to have succeeded, while abolishing what was +essentially evil in the system, in retaining whatever of it was of worth. +Whether there be still laws too deeply impressed with feudal ideas for +modern acceptance is a question for legislators to consider. + + + + +The Manor and Manor Law. + +BY ENGLAND HOWLETT. + + +Everything relating to the manor reminds us forcibly of the baron of olden +days, with his little territory, in which he was practically a king. +Estates in copyhold are essentially distinct both in their origin and in +their nature from those of freehold estates. Copyhold lands are holden by +_copy_ of court roll, that is to say, the muniments of the title to such +lands are _copies_ of the roll or book in which an account is kept of the +proceedings in the _court_ of the manor to which the lands belong. For it +must be remembered that all copyhold lands belong to and are parcel of +some manor. An estate in copyhold is not a freehold; but, according to +construction of law, merely an estate _at the will of the lord_ of the +manor, at whose will copyhold estates are expressed to be holden. +Copyholds are also said to be holden _according to the custom_ of the +manor to which they belong, for custom is of course the life and being of +copyholds. + +We must remember that in former days, a baron, or great lord, becoming +possessed of a large tract of land, granted part of it to freemen for +estates in fee simple. Part of the land he reserved to himself, and this +formed the demesnes of the manor, properly so called: other parts of the +land he granted out to his villeins, or slaves, permitting them, as an act +of pure grace and favour, to enjoy such lands at his pleasure; but +sometimes enjoining, in return for such favour, the performance of certain +agricultural services, such, for instance, as ploughing the demesne, +carting the manure, and other such servile work. The lands remaining after +this parcelling out, generally the poorest, formed the waste lands of the +manor, over which rights of commons were enjoyed by the tenants. In this +way arose a manor, of which it will be seen the tenants formed two +classes, the freeholders and the villeins. Now for each of these classes a +separate court was held--for the freeholders a Court Baron; for the +villeins another called a Customary Court. In the former court the suitors +were the judges; in the latter the lord only, or his steward. + +In some manors the villeins were allowed to have life interests, but these +grants were not extended so as to admit any of their children. Hence arose +copyholds for life. Again, in other manors a much greater degree of +liberality was shown by the lords; and on the death of a tenant, the lord +permitted his eldest son, or indeed sometimes all his sons, or sometimes +the youngest only, and afterwards other relations to succeed him by way of +heirship; for which privilege, however, the payment of a fine was usually +required on the admittance of the heir to the tenancy. Frequently it +happened that the course of descent of estates of freehold was chosen as +the model for such inheritances; but in many cases dispositions of the +most capricious kind were adopted by the lord of the manor, and in course +of time actually became the custom of the manor. And thus it was that +copyholds of inheritance arose. Again, if a villein tenant wished to part +with his own parcel of land to some other of his fellows, the lord would +allow him to _surrender_ or yield up again the land, and then, on the +payment of a fine, would indulgently _admit_ as his tenant, on the same +terms, the other, to whose use and in whose favour the surrender had been +made. Thus arose the method now prevalent at the present day, of conveying +copyholds by _surrender_ into the hands of the lord of the manor to the +use of the purchaser, and the subsequent admittance of the latter. By long +custom and continued indulgence that which at first was a pure favour +gradually grew up into a right, and thus it came to pass that the will of +the lord, which had of course originated the custom, came at last to be +controlled by it.[4] + +The rise of the copyholder from a state of uncertainty to certainty of +tenure appears to have been very gradual. Britton, who wrote in the reign +of Edward I., thus describes this tenure under the name of Villeinage. +"Villeinage is to hold part of the demesnes of any lord entrusted to hold +at his will by villein services to improve for the advantage of the lord." +And he further adds that "In manors of ancient demesne there were pure +villeins of blood and of tenure, who might be ousted of their tenements at +the will of their lord." + +In the reign of Edward III. a case occured in which the entry of a lord on +his copyholder was adjudged lawful, _because he did not do his services_, +by which he broke the custom of the manor, which seems to show that even +at that time the lord could not have ejected his tenant without a cause. +And later, in the reign of Edward IV., the judges gave to copyholders a +certainty of tenure by allowing them an action of trespass on ejectment by +their lords without just cause. "Now," says Sir Edward Coke, "copyholders +stand upon a sure ground; now they weigh not their lord's displeasure; +they shake not at every sudden blast of wind; they eat, drink, and sleep +securely; only having a special care of the main chance, namely, to +perform carefully what duties and services soever their tenure doth exact +and custom doth require; then let lord frown, the copyholder cares not, +knowing himself safe." + +In the present day a copyholder has as good a title as a freeholder; in +some respects a better; for all the transactions relating to the +conveyance of copyholds are entered on the court rolls of the manor, and +thus a record is preserved of the title of all the tenants. + +Since the passing of the statute of _Quia Emptores_, 18 Edward I., it has +not been lawful to create a tenure of an estate in fee simple; so that +every manor bears date at least as far back as that reign; to this rule +the few seignories, which may have been subsequently created by the king's +tenants in capite, form the only exception. + +The name "manor" is of Norman origin, but the estate to which it was given +existed, in its essential character, long before the Conquest; it received +a new name as the shire also did, but neither the one nor the other was +created by this change. The local jurisdiction of the thegns who had +grants of sac and soc, or who exercised judicial functions amongst their +free neighbours, were identical with the manorial jurisdictions of the new +owners. + +Although long continued custom has now rendered copyholders quite +independent of the will of the lords, yet all copyholds, properly so +called, are still expressly stated, in the court rolls of manors, to be +holden at the will of the lord; and, more than this, estates in copyholds +are still liable to some of the incidents of mere estates at will. + +In ancient times the law laid great stress on the feudal possession or +seisin of lands, and this possession could only be had by the holder of an +estate of freehold, that is, an estate sufficiently important to belong +to a free man. Now, as we have seen, copyholders in ancient times belonged +to the class of villeins or bondsmen, and held, at the will of the lord, +lands of which the lord himself was alone feudally possessed. The lands +held by the copyholders still remained part and parcel of the lord's +manor; and the freehold of these lands still continued vested in the lord; +and this is the case at the present day with regard to all copyholds. The +lord of the manor is actually seised of all the lands in the possession of +his copyhold tenants. + +The lord, having the legal fee simple in the copyhold lands comprised in +his manor, possesses all the rights incident to such an estate, controlled +only by the custom of the manor, which is now the tenant's safeguard. Thus +he possesses a right to all the mines and minerals under the land, and +also to all timber growing on the surface, and this even though the timber +may have been planted by the tenant. However, it must be borne in mind +that these rights are somewhat interfered with by the rights which long +continued custom has given to the tenants, for the lord cannot come upon +the lands to open his mines, or to cut his timber, without the +copyholder's leave. + +A copyholder cannot commit any waste, either voluntary, by opening mines, +cutting down timber or pulling down buildings; or permissive, by +neglecting to repair. For the land, with all that is under it or upon it, +belongs to the lord of the manor; the tenant has nothing but a customary +right to enjoy the occupation; and if he should in any way exceed this +right, a cause of forfeiture to his lord would at once accrue.[5] + +By the customs of manors, on every change of tenancy, whether by death, +sale, or otherwise, fines of more or less amount become payable to the +lord. By the customs of some manors the fine payable was anciently +arbitrary; but now in modern times, fines, even when arbitrary by custom, +are restrained to two years' improved value of the land after deducting +quit rents. + +In some manors a fine is due on the change of the lord; but in this case +the change must always be by act of God, and not by any act of the party. + +The tenure of an estate in copyholds involves an oath of fealty from the +tenant, and together also with suit to the customary court of the manor. +Another incident of the tenure, and this sometimes a very profitable one, +is the escheat to the lord on failure of heirs. + +Before the abolition of forfeiture for treason and felony, the lord of a +copyholder had a great advantage over the lord of a freeholder in this +respect, that, whilst freehold lands in fee simple were forfeited to the +crown by the treason of the tenant, the copyholds of a traitor escheated +to the lord of the manor of which they were held. + +One of the most curious incidents of the tenure is the right of the lord, +on the death of a tenant, to seize the tenant's best beast, horse, or +other chattel under the name of a heriot. Now it would appear that heriots +were introduced into England by the Danes. The heriot of a military tenant +was his arms and habiliments of war, which belonged to the lord for the +purpose of equipping his successor. And it would seem that in analogy to +this purely feudal custom, the lords of manors usually expected that the +best beast or other chattel of each tenant, whether he were a freeman or a +villein, should on his death be left to them. In old wills of copyholders +we constantly find this legacy to the lord of the manor the first bequest +mentioned: in fact the tenant really making a bounty of what was actually +an obligation. In cases where the tenant died intestate the heriot of the +lord was taken in the first place out of his effects, unless indeed the +lord seized the whole of the goods, which not unfrequently happened in +days before custom had so completely controlled the rights of the lord, +and at the same time protected the interests of the tenant. Heriots +survive to this day in many manors, a true badge of the ancient servility +of the tenure. Now, however, the right of the lord is confined to such a +chattel as the custom of the manor, grown into a law, will permit him to +take; and in most cases the heriot consists not of a chattel at all, but +merely of a money payment. + +The mode in which copyhold land is transferred from one person to another +still retains much of the primitive simplicity of bygone ages. The +copyholder personally surrenders the lands into the hands of the lord, +generally through his steward, and this surrender is evidenced by the +delivery of some article varying according to the custom of the particular +manor: in some manors the surrender is effected by the delivery of a rod, +in others of a straw, and again in others by a glove. The surrender having +been duly effected, the purchaser is admitted, and the various documents +used are all entered upon the court rolls of the manor. The steward is the +person who makes the entries on the court rolls, and they are kept in his +custody, but subject however to the right of the tenants to inspect them. +The steward also usually presides at the copyhold courts of the manor. + +A special custom is required to entitle the wife of a copyholder to any +interest in her husband's lands on his death intestate. Where such a +custom does exist the wife's interest is termed her _freebench_, and it +consists generally of a life interest in one-third part of the lands of +which the husband died possessed. Freebench in most manors differs from +the ancient right of dower in this most important particular, that whilst +the widow could claim her dower out of all the freehold lands which her +husband actually possessed at any time during the marriage, the right to +freebench does not in general attach until the actual death of the +husband, and of course may be defeated by a devise of lands by the +husband's will. From this it will be seen that freebench is no impediment +to free alienation by the husband of his copyholds without any consent on +the part of his wife. To this general rule, however, the manor of +Cheltenham forms an important exception; for by the custom of this manor +the widow's freebench attaches in the same way as the ancient right of +dower did on all the land of copyhold tenure, of which the husband at any +time during the marriage had been possessed. + +Centuries have robbed the manor of much of its importance; most of the +honour and prestige has decayed which once surrounded the lord, his power +has become controlled by long continued custom, so that the copyhold +tenants are practically independent of him, and have as good a title to +their lands as freeholders. Little remains beyond the most prominent of +the old formalities, which at one time gave dignity and importance to the +lord of the manor and his court. Most of the dealings with copyhold land +are now effected out of court, and although the courts are still held at +the customary periods, they are for the most part an empty formality, +their glamour gone, yet still possessing an especial interest of their own +as evidence of the surviving of ancient customs, which have practically +remained unchanged through the roll of centuries. + + + + +Ancient Tenures. + +BY ENGLAND HOWLETT. + + +Practically all the landed property in England is, by the policy of our +laws, supposed to be granted by, dependent upon, and holden of some +superior lord, in consideration of certain services to be rendered to such +lord by the possessor of this property, and the terms or manner of their +possession is therefore called a _tenure_. Thus all the land in the +kingdom is supposed to be held, mediately or immediately, of the sovereign +who is consequently styled the lord or lady _paramount_. + +All tenures being thus derived, or supposed to be derived, from the +sovereign, those who held directly under such sovereign, and in right of +the crown and dignity, were called tenants _in capite_, or _in chief_, +which was the most honourable species of tenure, although at the same time +it subjected the tenants to far greater and more burthensome services than +the inferior tenures did, and this distinction ran through all the +different sorts of tenure. William I., and other feudal sovereigns, +although they made large and numerous grants of land, always reserved a +rent or certain annual payments, which were collected by the sheriffs of +the counties in which the lands lay, to show that they still retained the +_dominium directum_ in themselves. + +With our ancestors the most honourable and highly esteemed species of +tenure was that by knight service, and this was purely and entirely a +military tenure, being, in fact, the result of the feudal establishment in +England. Now to make a tenure by knight service, a determinate quantity of +land was necessary, which was called a knight's fee, _feodum militare_; +the measure of which in 3 Edward I., was estimated at twelve ploughlands, +and its value (although it varied with the times) in the reigns of Edward +I. and Edward II. was stated at L20 per annum. The knight who held this +proportion of land was bound to attend his lord to the wars for forty days +in every year, if called upon so to do, which attendance was his rent or +service for the land he claimed to hold. If, however, he held only half a +knight's fee, he was only bound to attend his lord twenty days, and so on +in proportion. This tenure of knight service drew with it several +consequences as inseparably incident to the tenure in chivalry, and one of +the most profitable, and, at the same time, arbitrary of these was +marriage. This incident called marriage was the right which the lord +possessed of disposing of his infant wards in matrimony, at their peril of +forfeiting to him, in case of their refusing a suitable match, a sum of +money equal to the value of the marriage; that is, what the suitor was +willing to pay down to the lord as the price of marrying his ward; and +double the market value was to be forfeited, if the ward presumed to marry +without the consent of the lord. + +The personal attendance rendered necessary by knight service growing +troublesome and inconvenient in many respects, the tenants found means of +compounding for it; first, by sending others in their stead, and then in +process of time making a pecuniary satisfaction to the lord in lieu of it. +This pecuniary satisfaction at last came to be levied by assessments at so +much for every knight's fee; the first time this appears to have been done +was in 5 Henry II., on account of his expedition to Toulouse; but it soon +became so universal that personal attendance fell quite into disuse. From +this period we find, from our ancient histories, that when the kings went +to war, they levied scutages on their tenants, that is, on all the +landowners of the Kingdom, to defray their expenses, and to pay for the +hire of troops. + +These assessments, in the time of Henry II., seem to have been made in a +most arbitrary manner, and entirely at the king's will and pleasure. The +prerogative became, indeed, abused to such an extent, that at last it +became a matter of national clamour, and King John was obliged to consent +by his _Magna Carta_, that no scutage should be imposed without the +consent of Parliament. But this clause was omitted in the Charter of Henry +III., where we only find that scutages, or escuage, should be taken as +they were used to be taken in the time of Henry II.; that is, in a +reasonable and moderate manner. Yet afterwards, by statute 25 Edward I., +and many subsequent statutes, it was again provided, that the king should +take no aids or tasks but by the common assent of the realm; hence it was +held that scutage, or escuage, could not be levied except with the consent +of Parliament; such scutages being indeed the groundwork of all +succeeding subsidies, and the land tax of later times. + +It will easily be seen that with the degenerating of knight service, or +personal military duty into a pecuniary assessment, all the advantages +were destroyed, and nothing in fact remained but the hardships. Instead of +having a national militia, composed of barons, knights, and gentlemen, +bound by their interests and their honour to defend the king and country, +the whole system of military tenures tended to nothing else but a wretched +means of raising money to pay an army of occasional mercenaries. At length +the military tenures, with all their heavy appendages were destroyed at +one blow by statute, 12 Charles II., C. 24, which enacts "that the courts +of wards and liveries, and all wardships, liveries, primer seisins, and +ousterlemains, values and forfeitures of marriage, by reason of any tenure +of the king or others, be totally taken away. And that all fines for +alienation, tenures by homage, knight service, and escuage, and also aids +for marrying the daughter, or knighting the son, and all tenures of the +king _in capite_, be likewise taken away. And that all sorts of tenures, +held of the king or others, be turned into free and common socage; save +only tenures in frank almoign, copyholds, and the honorary services of +grand serjeanty." + +Another ancient tenure was that by _Grand Serjeanty_, whereby the tenant +was bound, instead of serving the king generally in the wars, to do some +special honorary service for the king in person; as to carry his banner, +his sword, or the like; or to be his butler, champion, or other officer at +his coronation. Tenure by _cornage_ was a species of grand serjeanty, +being a grant of land upon condition that the tenant was to wind a horn +when the Scots or other enemies entered the land, in order to warn the +king's subjects. + +The tenure of petit serjeanty bears a great resemblance to the tenure of +grand serjeanty; for as the one is a personal service, so the other is a +rent or render, both tending to some purpose relative to the king's +person. Petit serjeanty as defined by Littleton, consists in holding lands +of the king, by service of rendering to him annually some small implement +of war, as a bow, a sword, a lance, an arrow, or the like. This, of +course, is but socage in effect, for it is no personal service, but a +certain rent. The tenure by which the grants to the Duke of Marlborough +and the Duke of Wellington, for their great military services to the +country, are held, are of this kind, each rendering a small flag or ensign +annually, which is deposited in Windsor Castle. Bury House (New Forest), +the property of Sir Charles Mill, Bart., is held by the tenure of +presenting the king whenever he enters the New Forest with a brace of +milk-white greyhounds. A breed of these dogs is preserved by the family in +readiness. King George III. received dogs in recognition of this tenure in +1789, and the incident is the subject of one of Lawrence's pictures. + +In Beckwith's edition of Blount's "Fragmenta Antiquitatis," the following +tenure is inserted from the "Black Book of Hereford."--"The tenants at +Hampton Bishop, in the county of Hereford, were to get yearly six horse +loads of rods or wattels, in the Hay Wood, near Hereford, and bring them +to Hereford to make booths (or hurdles to pen sheep in) at the fair when +they should be required; and for every load of the said rods they were to +be allowed a halfpenny at the fairs." + +This tenure would appear to relate to one particular fair only, and not to +all the fairs formerly held at Hereford. The particular fair is supposed +to have been the one beginning on May 19th, and commonly called the +nine-days' fair, from the circumstance of its continuing for that length +of time. From time immemorial this fair was proclaimed, with certain +formalities, by the Bishop of Hereford's bailiff, or his deputy, the tolls +of the fair belonging to one or both of these officers. During the +continuance of the fair, the Bishop's bailiff superseded the Mayor of +Hereford as acting magistrate, the fair being held in a street opposite +the Bishop's palace. + +Brienston, in Dorsetshire, was held in grand serjeanty by a curious +jocular tenure, viz.:--by finding a man to go before the king's army for +forty days when he should make war in Scotland (some records say in Wales) +bareheaded and bare-footed, in his shirt, and linen drawers, holding in +one hand a bow, and in the other an arrow without feathers.[6] + +The Dukes of Athol hold the Blair Athol estate by the tenure of presenting +a white rose to the sovereign whenever he visits them there. + +Land was frequently held by the tenure of protecting the church property +in times of war. Scott tells us how the Bishop of Durham gave lands to +the Danish Count, Witikind, to be held by this tenure. The story is not +true, but the tenure is; + + Broad lands he gave him on Tyne and Wear, + To be held of the Church by bridle and spear; + Part of Monkwearmouth, of Tynedale part, + To better his will and soften his heart. + _Harold the Dauntless._ + Canto i., IV. + +The tenure of ancient demesne exists in those manors, and in those only, +which belonged to the crown in the reigns of Edward the Confessor and +William the Conqueror, and in Domesday Book are called _Terroe Regis +Edwardi_. The tenants are freeholders and possessed certain privileges, +the chief of which was a right to sue and be sued only in their lord's +court. + +Another kind of ancient tenure, still subsisting, is the tenure of +frankalmoign, or free alms, and this is the tenure by which the lands of +the church are for the most part held. This tenure is expressly excepted +from the statute, 12 Charles II., by which the other ancient tenures were +destroyed. It has no peculiar incidents, the tenants not being bound even +to do fealty to the lords, because, as Littleton says, the prayers and +other divine services of the tenants are better for the lords than any +doing of fealty. As the church is a body having perpetual existence, there +is, moreover, no chance of any escheat. By this tenure almost all the +monasteries and religious houses held their lands. It was an old Saxon +tenure; and continued under the Norman revolution, through the great +respect that was shewn to religion and religious men in ancient times. +This too, no doubt, is the reason that tenants in frankalmoign were +discharged from all other services except the repairing of highways, +building castles, and repelling invasions; just in fact as the Druids, +among the Ancient Britons, had similar privileges. The tenure being purely +spiritual, the lord had no remedy for neglect by distress or otherwise, +but merely a complaint to the ordinary to correct it. + +One of the most interesting tenures is that of Borough English. There are +a great number of manors throughout the country in which this tenure +prevails; they are not however confined to one county or one district. +Borough English is the right of succession of the youngest son, instead of +the eldest, to real estate in case of intestacy, but the custom is not +always the same; it differs in different manors. In some it is confined +to the sons only, and if there should be no son the estate is shared +equally amongst all the daughters. In other manors, principally Sussex, +the youngest daughter inherits. Again, there are cases to be found where +if there be no children, the youngest brother inherits, and in others it +goes according to the rules of the common law. There are, moreover, places +in which the copyhold land only is Borough English, while the freehold is +held by the ordinary tenure, and in others the freehold and copyhold alike +follow the Borough English custom. + +The area over which this Borough English tenure prevails is an exceedingly +wide one. It is found in nearly every part of Europe, except perhaps Italy +and Spain--in Germany, Hungary, the Ural mountains, and in Asia as far as +the borders of China. Many attempts have been made to explain the custom. +Littleton suggests that the youngest son, by reason of his tender age, is +not so capable as the rest of his brethren to help himself. It is possible +the origin may have come to us from the Tartars, amongst whom this custom +of descent to the youngest son also prevails. That nation is composed +almost entirely of shepherds and herdsmen, and the elder sons, as soon as +they are capable of leading a pastoral life, migrate from their father +with a certain allotment of cattle, and go to seek a new habitation. And +thus we find that, among many other northern nations, it was the custom +for all the sons, but one, to migrate from the father, which one became +his heir. + +The tenure of Gavelkind prevails principally in the County of Kent. It is +universally known what struggles the Kentish men made to preserve their +ancient liberties, and with how much success those struggles were +attended. It seems fair therefore, to conclude that this custom was a part +of those liberties, agreeably to the general opinion, that Gavelkind, +before the Norman Conquest, was the general custom of the realm. The +distinguishing properties of this tenure are various; some of the +principal are these: 1. The tenant is of age sufficient to alienate his +estate by feoffment at the age of fifteen. 2. There never was any escheat +in case of an attainder and execution for felony; their maxim being "the +father to the bough, the son to the plough." 3. In most places, the tenant +had the power of devising his lands by will, before the statute for that +purpose was made. 4. The lands descend not to the eldest, youngest, or any +one son only, but to all the sons together. This last incident is, of +course, the most important affecting the tenure, and not only this, but +also the most interesting, in that, like Borough English, it prevails to +the present day. True it is that certain lands in Kent, once Gavelkind, +have been made descendable according to the rules of the common law, by +special statutes; however, these statutes only affect a very small portion +of the county. + +Gavelkind and Borough English, being customs already acknowledged by the +law, need not be specially pleaded; it is sufficient to show that the +lands are affected and regulated by the same; but all other private +customs must be pleaded. + +The ancient Barons of Buccleuch, both from feudal splendour and from their +frontier situation, retained in their household at Branksome a number of +gentlemen of their own name, who held lands from their chief for the +military service of watching and guarding his castle. + + Nine and twenty knights of fame + Hung their shields in Branksome Hall + Nine and twenty squires of name + Brought them their steeds from bower to stall. + Nine and twenty yeomen tall + Waited duteous on them all. + They were all knights of metal true, + Kinsmen to the bold Buccleuch. + "Lay of the Last Minstrel."--Scott. + Canto i., III. + + + + +Laws of the Forest. + +BY EDWARD PEACOCK, F.S.A. + + +The subject of "The Laws of the Forest" and of the wild things which have +their homes therein, both in our own island and elsewhere, has been a +matter of discussion for ages; but very little has been written thereon +which is of much service, except to legal specialists. It is, indeed, one +of those difficult subjects which is hardly possible to make interesting +to those whose thoughts range in the present rather than in the past. + +There can be no doubt whatever, that from the birth of the human race, +long ere we can trace our history back in written documents, the killing +of animals has been a sport as well as a means of procuring food; both +these may be considered, whatever certain dreamers may aver to the +contrary, as among the necessities of human life. We cannot be quite +certain whether the stone axes, hammers, and spears, of which we see such +numbers in our museums, were wrought in anticipation of the delights of +the chase, or whether they were simply, what may be called, the tools of +the primaeval butcher; but, knowing as we do, the contempt in which every +man at the present hour is held, who having wealth and leisure enough to +indulge in what is called "sport," abstains from amusing himself in some +form of slaughter, we may well believe that our palaeolithic predecessors, +however empty the larder might be, would try to impose on themselves that +what they did was done to amuse themselves, as a manly exercise, not a +stern necessity. In confirmation of this, we must call mind that there +have been found several weapons with the reindeer and other animals +carved, or perhaps it would be better to say scratched, upon them with a +high degree of pictorial excellence; we may therefore infer that +amusement, as well as appetite, occupied the minds of those early artists, +who so deftly represented the creatures on whom they waged war. Had they +merely been regarded as things to be eaten, such as the tinned meats we +now buy from the provision merchant, they would never have been held +worthy of artistic treatment. + +One of the oldest proverbs that have come down to us, if indeed it be not +the very oldest, is that wherein we are told something + + "Of Nimrod the founder + Of empire and chace, + Who made the woods wonder + And quake for their race." + +That he was the first of the great hunters is a dream of Lord Byron's, not +in any way countenanced by Holy Scriptures, or any of the old authorities. +We are simply told in Genesis that Nimrod was a son of Cush, and that "He +began to be a mighty one in the earth. He was a mighty hunter before the +Lord. Wherefore it is said, even as Nimrod the mighty hunter before the +Lord."[7] The precise meaning of this has been questioned. It most likely +signifies that Nimrod was the first person who organised those mighty +hunting expeditions, which were so famous in the days of the great +Oriental despotisms. From these tyrants it is probable that the Forest +Laws of Mediaeval Europe had their origin. In the sculptures that have been +unearthed in the dead cities of the East, hunting scenes of great +magnificence are not uncommon, nor are they unknown in Egypt, where, +however, the capture of fish was the more common sport, as the Nile may +be said to have been at every man's door. + +That Forest Laws of some kind or other existed in these far-off times may +be accepted as certain, and we may take it for granted, when we call to +mind the general legislation then in force, that they were terribly cruel +according to our modern ideas, but we can at present only arrive at these +conclusions by inference. + +When Rome became the mistress of the world, we know that in many parts of +the empire the wild creatures were rigorously preserved, but we do not +think that they were often hunted by their owners. Such was rather the +duty of freed men and slaves. Those which were fit for food were preserved +as delicacies for the table, but the larger beasts, such as the lion, the +tiger, the bear, the lynx, and perhaps even the wild cat, were reserved +for the sports of the amphitheatre. Amphitheatres were much more common +than is usually supposed. In a few places their remains exist still, but +most of them have perished, serving as quarries for stone during the whole +of the Middle Ages, and in Mohammedan lands to a much more modern period, +perhaps even to the present day. We are not sure that any list of them +has been preserved, or could now be compiled, but they were so numerous +throughout the empire that the possession of wild beasts on the immense +estates of the Roman patricians must have been a great source of wealth to +their owners. The Roman nobles did not care for field-sports as the +northern nations did. A feeling or instinct of this kind dies hard. At the +present day the Italian cares much less for such amusements than the +Englishman, the German, or the inhabitants of northern France. Virgil, who +represents more fully than any other heathen poet, the feelings of the +better sort of Romans of his own time, says, attributing the words to +another, but evidently speaking his own thoughts:-- + + "Above aught else let the woods be dear to me."[8] + +This was, however, not for the sake of the slaughter that might be +perpetrated therein, but on account of their many beauties and the +grateful shade which they afforded. Virgil was in many respects a modern +in his love of scenery, though we doubt whether snow-clad mountains and +craggy heights would have appealed to him as they have done to us during +the short time that has elapsed since we have been able to see them +without discomfort. + +When the Roman Empire was in the zenith of its glory, there does not seem +to have been in Gaul or Britain any vast stretches of forest. The country +was no doubt well wooded when we compare it with the France or England of +to-day, for during the last two hundred years trees have been wantonly +destroyed, to the great injury of agriculture as well as local beauty, for +the sake of supplying land-owners with ready money. Long continued wars +have also desolated the national forests for the sake of supplying timber +to the shipbuilder. + +After the various invasions which desolated so many parts of the Roman +Empire, large portions of Gaul reverted to a state of nature. Towns and +villages were burned, their inhabitants slaughtered, or scattered far away +from their homes. A picturesque account of what followed is given in +Montalembert's _Les Moines d'Occident_, from which we gather that much of +Gaul had reverted to a state of nature, such as it was in ere civilisation +had made its first incursions on the untamed wilderness. The lives of the +early Gallic saints, found scattered through the many volumes of the +_Acta Sanctorum_, bear the like testimony, as do many parts of the old +romances, the scenes of which so often lie in the trackless forest. + +In England, things may not have been quite so woeful. The population, we +believe, never became so scanty as in Eastern Gaul. It is still a matter +of controversy whether here the native folk were slaughtered or driven +into the mountains of Wales, or whether the greater part of them were made +bondmen. We hold the latter opinion, but the whole subject is beset with +great difficulties. However this may be, it is quite certain that the +population was very much reduced; many wide districts, which had been +carefully cultivated by the Roman settlers, or natives who had adopted +their manners, were laid waste. The picturesque villas, with their +adjoining peasant homesteads, were all gone--burnt with fire,--and +woodland, scrub, or mere sandy desolation supplied the place of the +adjoining pleasure-grounds, farms, and pastures. One of these desolate +tracts named Andredsweald stretched from Kent to the Hampshire Downs, at +some points almost touching the Thames. Another great forest appears to +have extended from a point a little to the north of London, till it +reached the forests of Rockingham and Sherwood. The great level of +Hatfield Chace seems to have been a spur of this, if not so, they were but +separated by a narrow stretch of cultivated land from the forest itself. +Deer were plentiful on Hatfield Chace until the reign of Charles the +First. They even continued to exist longer on the eastern side of the +Trent, on a long and narrow belt of scrub which extended from Morton, near +Gainsburgh, to the point where the Trent falls into the Humber. An +ancestor of our own, who died as recently as 1758, was accustomed to hunt +them there. As well as these larger forests, the whole land was dotted +over with places once the sites of Roman dwellings, but which now had +become either mere wastes, or woodlands covered with tall timber trees, +interspersed with the elder, the nut, the thorn, the birch, the maple, and +the alder. In some places the yew and the holly were abundant also, but +they seem to have flourished only in widely separated patches. + +The Saxon and the Danish conquests came about gradually, and the country +was in so disturbed a state that it was impossible for rigid Forest Laws +to be enacted, or even if written on parchment to be put in force. +Besides this, the Saxon and Danish leaders were of a different character +from their Norman successors. A vague memory still haunted them of the +free life once lived in Germany and Scandinavia; a life as different as +can well be imagined from that of modern democracy, but still one in which +every thrall, bondman, and slave had certain well ascertained rights, +which were under the protection of the State and the Church. + +Thus it came to pass that there were in almost every district stretches of +forest land, which were, in a great degree, open to the people, where men +could fell timber for their dwellings and slaughter animals for food; +though even before the Norman Conquest had come as a shadow on the +liberties of Englishmen, there is reason for thinking that forestal-rights +had become, in name at least, a privilege of the king and his great +theigns. + +The Norman Forest Law was of a similar character to that which William's +forefathers had enforced in Normandy. The country, which we have for ages +known as France, was, in earlier times, broken up into many provinces, and +it was only by a slow process that it became one. Each of these provinces +had a Forest Law of its own. When the Normans settled in the goodly land +which they called after themselves, they retained the customs which they +found there. When William transferred the laws of his old duchy to his new +kingdom, it could, at the first, only be by an act of favour that anyone +could kill a beast of chase except himself or his retainers. This from the +nature of things did not last long. William never could have intended to +retain the whole of the vast territories which the victory of Senlac had +given him in his own possession. He divided the kingdom among his chief +tenants--tenants _in capite_,--and to these great men, with some slight +exceptions, he handed over all forestal rights which existed in their +domains, the king retaining to himself for his own pleasure, and as a mark +of dignity, some great forests, which for ages have remained in royal +hands. + +Notwithstanding certain Danish and Saxon charters, it has always been +traditionally held that our Forest Laws come from William the First, and +this is substantially true, though objections to the statement might be +taken. It would not be unsafe to say that no one but the Conqueror could +have enforced so drastic a regulation. As the Bishop of Oxford has so +truly said, "The King made and kept good peace. The Dane-geld and the +Forest-Law were not too much to pay for the escape from private war and +feudal disruption."[9] It is true that William had desolated large tracts +of land to make them serve him for the chase; the crime was terrible, +though exaggerated by modern historians; but he had many noble qualities, +so that those who had not personally suffered were willing to overlook the +evil. With his son, William the Red, the Forest Laws became unbearable, +and were hated by baron and villain alike. + +He was one of the worst kings which ever disgraced the English throne. In +a deeply religious age he was wantonly opposed to all godliness. Alike the +enemy of God and Man, a type and representative of all things evil, we +need not wonder when he fell by an arrow in the New Forest, that men saw a +visible judgment of God. + +To him, and to Henry the First, are commonly ascribed the ferocity of the +Forest Laws. Men believed that in after time kings would have mitigated +matters had it been in their power. They said, and there is much truth in +the averment, that these bad laws required the support of an army of evil +men to work them efficiently, and that for the ordinary court officials, +or the king himself, to thwart these people would be especially dangerous. +When we call to mind what have been from time to time the characters of +the farmers of the taxes at Naples, and various parts of France, we cannot +deny that there is much truth in the statement. + +Affairs reached their most evil point when Henry II. was King. It was then +the custom for the royal foresters to be a complete law unto themselves, +they put to death and mutilated whom they would without any trial +whatever, or with but the mockery of the water-ordeal, a farce which had +already been condemned by the Church, but which was very fashionable with +ruffians who were anxious to secure a conviction. One of these fellows +laid hold of an ecclesiastic, with the intention of extracting from him a +large sum of money. Well was it for him that he was of the diocese of +Lincoln, and that at that time Hugh of Avalon was its bishop. The thunders +of excommunication were at once heard, the ecclesiastic escaped from the +forester's clutches, and from that time forward, though much yet remained +to be done, the tide turned, and the Forest Laws were administered with +something more nearly approaching to justice. + + + + +Trial by Jury in Old Times. + +BY THOMAS FROST. + + +When we congratulate ourselves, as we are so apt to do, on the length of +time the system of trial by jury has been established in England, and the +safeguard it affords against attempts to strain the law to the prejudice +of the accused, we are often unmindful of the fact that the institution +has not always proved a safeguard when the court, acting under the +influence of the Crown, endeavoured to obtain a conviction. It was only in +the latter half of the sixteenth century that juries began to evince that +determination not to yield their own judgment to the wishes of those in +high authority, which became further developed in the course of the +seventeenth. An interesting illustration of the old spirit of judges, and +the new spirit of juries, is afforded by the trial of Sir Nicholas +Throckmorton, in 1554, on a charge of high treason, in conspiring the +death or deposition of the Queen, and the seizure by force of arms of the +Tower of London. The prosecution was conducted by Serjeant Stanford and +the Attorney-General, Griffin, the former leading; and it is noteworthy +that both they and Chief Justice Bromley questioned the prisoner in much +the same manner as is still customary in France and Belgium, striving to +procure evidence that would convict him out of his own mouth. The +endeavour failed, and the only criminating evidence against the prisoner +was contained in the alleged confessions of Winter and Crofts, who, +however, were not called as witnesses. + +The jury, after several hours' deliberation, returned a verdict of not +guilty, upon which the Lord Chief Justice addressed them in threatening +tones, saying, "Remember yourselves better. Have you considered +substantially the whole evidence as it was declared and recited? The +matter doth touch the Queen's highness and yourselves also. Take good heed +what you do." The jury were firm, however, and the foreman replied to the +remonstrance of the bench, "We have found him not guilty, agreeable to all +our consciences." Then the Attorney-General rose, and addressing the +court, said, "An it please you, my lords, forasmuch as it seemeth these +men of the jury, which have strangely acquitted the prisoner of his +treasons whereof he was indicted, will forthwith depart the court, I pray +you for the Queen that they and every one of them may be bound in a +recognizance of L500 a-piece, to answer to such matters as they shall be +charged with in the Queen's behalf, whensoever they shall be charged or +called." The court went beyond even this audacious request, for they +actually committed the jury to prison! Four of them were discharged +shortly afterwards, having so little moral stamina left as to make a +humble confession that they had done wrong; but the remaining eight were +brought before the Star Chamber and severely dealt with, three being +ordered to pay a fine of L2,000 each, and the others L200 each. + +In the following reign, in a case in which three persons were indicted for +murder, and the jury found them guilty of manslaughter only, contrary to +the direction of the court, the jurors were both fined and bound in +recognizances for their future "good behaviour." A decision of the Lord +Chancellor, the two Chief Justices, and the Chief Baron, in the reign of +James I., sets forth that when a person is found _guilty_ on indictment, +the jury should not be questioned; but when a jury has acquitted a +prisoner against what the court holds to be proof of guilt, they may be +charged in the Star Chamber, "for their partiality in finding a manifest +offender not guilty." In 1667, we find this view extended to the case of +grand juries ignoring a bill on grounds which the court did not consider +sufficient. Chief Justice Kelying in that year having fined a grand jury +of the County of Somerset, for not finding a true bill against a man +accused of murder; but, says the report, "because they were gentlemen of +repute in the county, the court spared the fine." This case, and several +others in which the same judge had acted in a similar manner, were brought +under the notice of the House of Commons, however, and that assembly +resolved "that the precedents and practice of fining or imprisoning jurors +for verdicts is illegal." + +Notwithstanding this resolution of the House of Commons, William Penn, and +another member of the Society of Friends, named Mead, being indicted at +the Old Bailey for having, with other persons unknown, unlawfully and +tumultuously assembled in Gracechurch Street, in the City of London, the +Recorder dealt with the jury in a manner which caused the illegality of +fining jurors for their verdicts to be again brought into question. The +indictment set forth that Penn, by agreement with and abetment of Mead, +did in the open street speak and preach to the persons there assembled, by +reason whereof a great concourse of people gathered and remained a long +time, in contempt of the King and the law, and to the great terror and +disturbance of many of His Majesty's liege subjects. The trial took place +before the Recorder, the Lord Mayor, and the Aldermen; and when witnesses +had deposed that Penn had preached, and that Mead was there with him, the +Recorder summed up the evidence, and the jury retired to consider their +verdict. They were absent a considerable time, at length returning with +the verdict that Penn was "guilty of speaking in Gracechurch Street." + +"Is that all?" the Recorder asked. + +"That is all I have in commission," replied the foreman. + +"You had as good say nothing," observed the Recorder, and the Lord Mayor +added, "Was it not an unlawful assembly? You mean he was speaking to a +tumult of people there." + +"My lord," returned the foreman, "that is all I have in commission." + +"The law of England," said the Recorder "will not allow you to part until +you have given in your verdict." + +"We have given in our verdict," returned the jury, "and we can give in no +other." + +"Gentlemen," said the Recorder, "you have not given in your verdict, and +you had as good say nothing; therefore go and consider it once more, that +we may make an end of this troublesome business." + +The jury then asked for pen, ink, and paper, and the request being +complied with, they again retired, returning after a brief interval with +their verdict in writing. They found Penn "guilty of speaking or preaching +to an assembly met together in Gracechurch Street," and Mead not guilty. + +"Gentlemen," said the Recorder, regarding the jury angrily, "you shall not +be dismissed till we have a verdict that the court will accept; and you +shall be locked up, without meat, drink, fire, and tobacco. You shall not +think thus to abuse the court. We will have a verdict, or you shall starve +for it." + +Penn protested against this course, upon which the Recorder ordered the +officers of the court to stop his mouth or remove him. The jury not +leaving their box, the Recorder again directed them to retire and +re-consider their verdict. Penn made a spirited remonstrance. "The +agreement of twelve men," said he, "is a verdict in law, and such a one +having been given by the jury, I require the clerk of the peace to record +it, as he will answer at his peril. And if the jury bring in another +verdict contradictory to this, I affirm they are perjured men in law. You +are Englishmen," he added, turning to the jury, "mind your privilege; give +not away your right." The court then adjourned to the following morning, +when the prisoners were brought to the bar, and the jury, who had been +locked up all night, were sent for. They were firm of purpose, and through +their foreman persisted in their verdict. + +"What is this to the purpose?" demanded the Recorder, "I will have a +verdict." Then addressing a juror, named Bushel, whom he had threatened on +the previous day, he said, "you are a factious fellow; I will set a mark +on you, and whilst I have anything to do in the city, I will have an eye +on you." + +Penn again protested against the jury being threatened in this manner, +upon which the Lord Mayor ordered that his mouth should be stopped, and +that the gaoler should bring fetters and chain him to the floor; but it +does not appear that this was done. The jury were again directed to retire +and bring in a different verdict, and they withdrew under protest, the +foreman saying, "We have given in our verdict, and all agreed to it; and +if we give in another, it will be a force upon us to save our lives." + +According to the narrative written by Penn and Mead, and quoted in +Forsyth's "History of Trial by Jury," this scene took place on Sunday +morning, and the court adjourned again to the following day, when, unless +they were supplied with food surreptitiously, they must have fasted since +Saturday. The foreman gave in their verdict in writing, as before, to +which they had severally subscribed their names. The clerk received it, +but was prevented from reading it by the Recorder, who desired him to ask +for a "positive verdict." + +"That is our verdict," said the foreman. "We have subscribed to it." + +"Then hearken to your verdict," said the clerk. "You say that William Penn +is not guilty in manner and form as he stands indicted; you say that +William Mead is not guilty in manner and form as he stands indicted; and +so say you all." + +The jury responded affirmatively, and their names were then called over, +and each juror was commanded to give his separate verdict, which they did +unanimously. + +"I am sorry, gentlemen," the Recorder then said, "you have followed your +own judgments and opinions, rather than the good and wholesome advice +which was given you. God keep my life out of your hands! But for this the +court fines you forty marks a man, and imprisonment till paid." + +Penn was about to leave the dock, but was prevented from doing so, upon +which he said, "I demand my liberty, being freed by the jury." + +"You are in for your fines," the Lord Mayor told the prisoners. + +"Fines, for what?" demanded Penn. + +"For contempt of court," replied the Lord Mayor. + +"I ask," exclaimed Penn, "if it be according to the fundamental laws of +England, that any Englishman should be fined or amerced but by the +judgment of his peers or jury; since it expressly contradicts the +fourteenth and twenty-ninth chapters of the Great Charter of England, +which say, 'No freeman ought to be amerced but by the oath of good and +lawful men of the vicinage.'" + +"Take him away," cried the Recorder. + +"They then," continues the narrative, "hauled the prisoners into the +bail-dock, and from thence sent them to Newgate, for non-payment of their +fines; and so were their jury. But the jury were afterwards discharged +upon an _habeas corpus_, returnable in the Common Pleas, where their +commitment was adjudged illegal." Even then, judges appear to have +remained unconvinced of the illegality of the practice, or stubborn in +their desire to enforce their own views or wishes upon juries; for the +question was not regarded as finally settled until the decision in the +Court of Common Pleas was clinched, in the same year, by a similar +judgment of the Court of King's Bench. + + + + +Barbarous Punishments. + +BY SIDNEY W. CLARKE. + + +That the world has become more merciful as it has grown older, is a truism +at once apparent to anyone who gives even a cursory glance at any of the +numerous works dealing with the criminal laws of the olden time. Still the +approach to the most excellent quality has been regretably and painfully +slow, and it is surely a stain on the boasted enlightenment of the +nineteenth century, that the century had run through nearly three-fourths +of its existence before the terrible and vindictive punishment of drawing +and quartering disappeared from our statute book. In most States the early +laws have been of a blood-thirsty and fear-inspiring nature, but what +excuse can be urged for the fact that until the fourth day of July, in the +year of Grace 1870, the punishment ordained by law for the crime of high +treason, was that the unfortunate offender should be drawn on a hurdle to +the place of execution, there to be hanged by the neck till he be dead; +that his head be severed from his body; that his body be divided into four +quarters; and that his head and quarters be at the disposal of the Crown. +In Blackstone's time the sentence was still more savage, or, as the great +Commentator puts it, "very solemn and terrible." It was that the offender +be drawn to the gallows, and not be carried or walk; "though usually," +says Blackstone, "by connivance, at length ripened by humanity into law, a +sledge or hurdle was allowed to preserve the offender from the extreme +torment of being dragged on the ground or pavement;" that he be hanged by +the neck and then cut down alive; that his entrails be taken out, and +burned before his eyes, while he was still alive; that his head be cut +off, his body be divided into four parts, and his head and quarters be at +the King's disposal. What our tender-hearted monarchs did with the +quivering pieces of flesh let the stones of Temple Bar, the City Gates, +and the Tower bear witness. Here are a couple of extracts from that +perennial fountain of information, the diary of Mr. Samuel Pepys. Under +date of October 13th, 1660, he writes, "I went out to Charing Cross to see +Major-General Harrison," one of the regicides, "hanged, drawn, and +quartered, which was done there, _he looking as cheerful as any man could +do in that condition_." Note the grim humour of the words in italics. "He +was presently cut down, and his head and heart shown to the people, at +which there was great shouts of joy." Again, on October 20th, in the same +year:--"This afternoon going through London and calling at Crowe's, the +upholsterer's, in St. Bartholomew's, I saw the limbs of some of our new +traytors set upon Aldersgate, which was a sad sight to see; and a bloody +week this and the last have been, there being ten hanged, drawn, and +quartered." + +It will be observed that the masculine gender is used in the foregoing +sentences for high treason; for, if the offender was a woman, the law with +a delicacy (!) one would hardly have expected, recognised that "the +decency due to the sex forbids the exposing and publicly mutilating their +bodies;" so a woman was simply to be drawn to the gallows, and there +burned alive. And these punishments for treason Sir Edward Coke attempted +to justify on Scriptural grounds, adding "it is punishment undoubtedly +just, for our liege lord the King is lord of every one of our members, +and they have severally conspired against him, and should each one +suffer." Evidently justice has not always spelt humanity. + +Another of the horrible punishments decreed by English law was that of +boiling to death, which in the reign of Henry VIII. was inflicted for +poisoning, and recalls the most cruel tortures of China and the Orient, +where slicing to death and impalement alive are or were common forms of +punishment. The awful fate of being boiled alive was specially devised for +the benefit of John Roose, a cook, who had been convicted of throwing +poison into a pot of broth intended for the family of the Bishop of +Rochester and for the poor of the Parish; in 1542, Margaret Davey suffered +the same lingering death at Smithfield. So fearful were our ancestors of +poison, that in Scotland, in 1601, Thomas Bellie, a burgess of Brechin, +and his son were banished for life by the High Court of Justiciary, for +the heinous offence of poisoning a couple of troublesome hens belonging to +a neighbour. Even the laws of Draco, said on account of their severity to +have been written not in ink but in blood, can scarcely compete with these +examples of British barbarity. + +Among the Romans strangulation, precipitation from a rocky height (a mode +of carrying out the death sentence still found amongst savage tribes), and +lashing to death were forms of punishment. Soldiers guilty of military +offences had to run the gauntlet. Upon a given signal all the soldiers of +the legion to which the offender belonged fell upon him with sticks and +stones, and generally killed him on the spot. If, however, he succeeded in +making his escape, he was thenceforth an exile from his native country. +Offending slaves were first scourged and then crucified. They were +compelled to carry the cross to the place of execution, and after being +suspended were left to perish by slow degrees. Crucifixion was abolished +throughout the Roman Empire by Constantine, out of reverence to the sacred +symbol. Other cruel punishments were burning alive, exposure to wild +animals, and condemnation to fight as gladiators in the arena for the +amusement of the citizens. The second of these modes of death, for death +was the invariable result, was the one usually meted out to the early +Christians--"If the Tiber overflows its banks; if there be a famine or +plague; if there be a cold, a dry, or a scorching season; if any public +calamity overtakes us; the universal cry of the people is--"To the lion +with the Christians _Christiani ad leonem_!" + +Parricide was punished in a strange manner. The criminal, after being +scourged, was tied or sewed up in a leather bag, with a dog, a cock, a +viper, and an ape to keep him company, and so cast into the sea. The +Egyptians punished the same offence by sticking the prisoner all over with +pointed reeds, and then throwing him upon a fire of burning thorns, where +he lay till he was consumed. + +With most nations the _Lex talionis_, or punishment of retaliation--an eye +for an eye, a limb for a limb--has found a place in the penal system. It +was not, indeed, always carried out to its logical conclusion, but rather +became the subject of many subtle distinctions. Among the Athenians, Solon +decreed that whoever put out the eye of a one-eyed person should for so +doing lose both his own. But what, it was asked, should be done where a +one-eyed man happened to put out one of his neighbour's eyes? Should he +lose his only eye by way of retaliation? If so, he would then be quite +blind, and would so suffer a greater injury than he had caused. The law of +the Jews and Egyptians compelled anyone, who without lawful excuse was +found with a deadly poison in his possession, to himself swallow the +poison. An instance of a kind of _lex talionis_ in our own country is +found in the reign of Edward I., when incendiaries were burnt to death. +Another example is that, from the reign of Henry VIII. to that of George +IV., to strike a blow and draw blood within the precincts of the King's +palace, entailed on the offender the loss of his right hand. Here are some +of the regulations prescribed by the statute 33 Henry VIII., chapter 12, +for the infliction of the punishment:-- + + "viii. And for the further declaration of the solemn and due + circumstance of the execution appertaining and of long time used and + accustomed, to and for such malicious strikings, by reason whereof + blood is, hath been, or hereafter shall be shed against the King's + peace. It is therefore enacted by the authority aforesaid, that the + Sergeant or Chief Surgeon for the time being, or his deputy of the + King's household, his heirs and successors, shall be ready at the time + and place of execution, as shall be appointed as is aforesaid, to sear + the stump when the hand is stricken off. + + "ix. And the Sergeant of the Pantry shall be also then and there ready + to give bread to the party that shall have his hand so stricken off. + + "x. And the Sergeant of the Cellar shall also be then and there ready + with a pot of red wine to give the same party drink after his hand is + so stricken off and the stump seared. + + "xi. And the Sergeant of the Ewry shall also be then and there ready + with cloths sufficient for the Surgeon to occupy about the same + execution. + + "xii. And the Yeoman of the Chandry shall also be then and there, and + have in readiness seared cloths sufficient for the Surgeon to occupy + about the same execution. + + "xiii. And the Master Cook shall be also then and there ready, and + shall bring with him a dressing-knife, and shall deliver the same + knife at the place of execution to the Sergeant of the Larder, who + shall be also then and there ready, and hold upright the + dressing-knife till execution be done. + + "xiv. And the Sergeant of the Poultry shall be also then and there + ready with a cock in his hand, ready for the Surgeon to wrap about the + same stump, when the hand shall be so stricken off. + + "xv. And the Yeoman of the Scullery to be also then and there ready, + and prepare and make at the place of execution a fire of coals, and + there to make ready searing-irons against the said Surgeon or his + deputy shall occupy the same. + + "xvi. And the Sergeant or Chief Ferror shall be also then and there + ready, and bring with him the searing-irons, and deliver the same to + the same Sergeant or Chief Surgeon or to his deputy when they be hot. + + "xvii. And the Groom of the Salcery shall be also then and there ready + with vinegar and cold water, and give attendance upon the said Surgeon + or his deputy until the same execution be done. + + "xviii. And the Sergeant of the Woodyard shall bring to the said place + of execution a block, with a betil, a staple, and cords to bind the + said hand upon the block while execution is in doing." + +In addition to losing his hand, the unfortunate offender was imprisoned +for life. It was not until 1829 that this punishment was abolished, after +having been in existence for a period of 287 years. + +A curious mode of punishment, intended to make its victim the object of +popular ridicule, was in vogue in the ancient German Empire, where persons +who endeavoured to create tumults and to disturb the public tranquility +were condemned to carry a dog upon their shoulders from one large town to +another. + +The penal laws of France were every wit as inhuman as our own--burning +alive, breaking on the wheel, hanging, beheading, and quartering were +common forms of punishment. Awful atrocities were committed on living +victims, such as tearing off the flesh with red-hot pincers, pouring +molten lead and brimstone into the wounds, and cutting out the tongue. The +following is the sentence passed upon Ravaillac, the assassin of Henry +IV., in 1610:--He was first to be privily tortured and then carried to +the place of execution. There the flesh was to be torn with red-hot +pincers from his breasts, his arms and thighs, and the calves of his legs; +his right hand, holding the knife wherewith he committed his crime, was to +be scorched and burned with flaming brimstone; on the places where the +flesh had been torn off a mixture of melted lead, boiling oil, scalding +pitch, wax, and brimstone was to be poured; after this he was to be torn +in pieces by four horses, and his limbs and body burned to ashes and +dispersed in the air. His goods and chattels were confiscated; the house +in which he was born was pulled down; his father and mother were banished, +and his other relatives commanded to change the name of Ravaillac for some +other. This sentence was not, surely, a vindication of outraged justice, +but rather a purile and barbarous legal revenge. + +To return to the laws of our own country. Mutilation of one sort or +another was long a favourite mode of punishment; pulling out the tongue +for slander, cutting off the nose for adultery, emasculation for +counterfeiting money, and so on. In Foxe's "Book of Martyrs" there is an +account of a miracle which was worked on the person of a mutilated +criminal. A Bedfordshire man was convicted of theft, and for his crime +his eyes were pulled out and other abominable mutilations were inflicted +on him. The sufferer repaired to the shrine of St. Thomas at Canterbury, +where after devout and steadfast prayer the parts he had lost were, so we +are told, miraculously restored. Anyone who fought with weapons in a +church had an ear cut off, or if he had already lost both his ears was +branded in the cheek with the letter F. + +By an Act passed in the reign of Queen Elizabeth, the punishment for +forgery was that the offender should stand in the pillory and have his +ears cut off by the common hangman, his nostrils slit up and seared, and +then suffer imprisonment for life. In 1731 Joseph Cook, aged 70 years, +underwent this punishment, the mutilation taking place while he stood in +the pillory at Charing Cross. + +The Coventry Act (22-23 Charles II., chapter 1.) was passed in consequence +of Sir John Coventry having been assaulted in the street and his nose +slit, out of revenge as was supposed. It enacted that if any person should +of malice, aforethought, and by lying in wait, cut out or disable the +tongue, put out an eye, slit the nose, or cut off or disable any limb or +member of any other person, with intent to maim or to disfigure him, such +person, his councillors, aiders, and abettors, should be guilty of felony +without benefit of clergy, which implied the punishment of death. This Act +was not repealed until 1828, and resulted in at least one curious case. In +1772, one Coke and a labourer named Woodburn were indicted under the +Act--Coke for hiring and abetting Woodburn, and Woodburn for the actual +offence of slitting the nose of one Crispe, who was Coke's brother-in-law. +The intention of the accused was to murder Crispe, and they left him for +dead, having terribly hacked and disfigured him with a hedge-bill, but he +recovered. An attempt to murder was not then a felony, but under the +Coventry Act to disfigure with an intent to disfigure was; and the accused +were indicted for the latter offence. Coke, in the course of his defence, +raised the point that the attack on Crispe was made with intent to murder +him and not with intent to disfigure, therefore, he contended, the offence +was not within the statute under which he was indicted. But the court held +that if a man attacked another intending to murder him, with such an +instrument as a hedge-bill, which could not but endanger a disfiguring of +the victim, and in such attack happened not to kill but only to +disfigure, he might be indicted for disfiguring. The jury found the +prisoners guilty, and they were condemned and duly executed. + +The laws for the protection of trade decreed many cruel punishments. Thus, +in the reign of Elizabeth, an Act passed for the encouragement of the +woollen industry prescribed that the penalty for taking live sheep out of +the country should be forfeiture of goods, imprisonment for a year, and +that at the end of the year the left hand of the prisoner should be cut +off in a public market, and be there nailed up in the most public place. A +second offence was punishable with death. By statute 21 James I. chapter +19, anyone unfortunate enough to become a bankrupt was nailed by one ear +to the pillory for two hours, and then had the ear cut off. Under the +Romans a bankrupt was treated still more unmercifully, for at the option +of his creditors he was either cut to pieces or sold to foreigners beyond +the Tiber. + +A longstanding disgrace to the intelligence and humanity of our countrymen +was the fact that in former times burning alive was the inevitable fate of +poor wretches convicted of witchcraft, the penal laws against which were +not repeated until 1736. So late as 1712, five so called witches were +hung at Northampton, and in 1716 Mrs. Hicks, and her daughter, aged nine, +were condemned to death at Huntingdon for selling their souls to the +devil. Even children of tender years were not spared, but with their +elders alike fell victims to our law's barbarity; there are many recorded +instances of children under ten years of age being executed. In Scotland +the last execution for witchcraft took place in 1722. + +Space will not permit any attempt to run through the whole gamut of legal +iniquities; at most we can only attempt a very incomplete catalogue of the +inhumanities at one time or another incident to our penal codes, and with +a final horror we must bring this article to an end. The punishment with +which we are now about to deal, that of pressing to death, _peine forte et +dure_ as it was called, is perhaps the most noteable example of the former +barbarity of our law, since it was inflicted before trial on innocent and +guilty alike, who refused to plead "Guilty" or "Not Guilty" to an +indictment for felony. What this punishment was, which was first +instituted in 1406, can best be told by giving the form of the judgment of +the court against the person who refused to plead:--That the prisoner +shall be remanded to the place from whence he came, and put in some low, +dark room, and that he shall lie without any litter or other thing under +him, and without any manner of covering; that one arm shall be drawn to +one quarter of the room with a cord and the other to another, and that his +feet shall be used in the same manner; and that as many weights shall be +laid upon him as he can bear, and more; that he shall have three morsels +of barley bread a day, and that he shall have the water next the prison, +so that it be not current; and that he shall not eat the same day on which +he drinks, nor drink the same day on which he eats; and that he shall +continue so till he die or answer. + +_Peine forte et dure_ was not abolished till 1772, and was frequently +undergone by accused persons in order to preserve their estates from being +forfeited to the Crown, which would have been the case if they had stood +their trial and been found guilty. The year 1741 is probably the last date +on which the punishment was inflicted. In 1721, two men, Thomas Cross and +Thomas Spigot, were ordered to be pressed to death at the Old Bailey. +Cross gave in on seeing the preparations made for his torture, but Spigot +was made of sterner stuff. In the "Annals of Newgate" is a description of +his sufferings:--"The chaplain found him lying in the vault upon the bare +ground with 350 pounds weight upon his breast, and then prayed by him, and +at several times asked him why he would hazard his soul by such obstinate +kind of self-murder. But all the answer that he made was--'Pray for me, +pray for me!' He sometimes lay silent under the pressure, as if insensible +to pain, and then again would fetch his breath very quick and short. +Several times he complained that they had laid a cruel weight upon his +face, though it was covered with nothing but a thin cloth, which was +afterwards removed and laid more light and hollow; yet he still complained +of the prodigious weight upon his face, which might be caused by the blood +being forced up thither, and pressing the veins as violently as if the +force had been externally upon his face. When he had remained for +half-an-hour under this load, and 50 pounds weight more laid on, being in +all 400 pounds, he told those who attended him he would plead. The weights +were at once taken off, the cords cut asunder; he was raised by two men, +some brandy was put into his mouth to revive him, and he was carried to +take his trial." In 1735, a man, who pretended to be dumb at the Sussex +Assizes, was sent to Horsham Gaol to be pressed to death unless he would +plead. He endured in agony a weight of 350 pounds, and then the +executioner, who weighed over 16 stones, laid himself upon the board upon +which the weights were placed, and killed the wretched man instantly. + + + + +Trials of Animals. + +BY THOMAS FROST. + + +One of the most singular features of the jurisprudence of the middle ages, +and one which was retained in the French code down to nearly the middle of +the last century, was the indictment of domestic animals for injuries +inflicted on mankind. The records of the criminal tribunals of France +disclose ninety-two such judicial processes between 1120 and 1741, when +the last of these grotesque trials took place in Poitou. The practice +seems to have been based on the Mosaic law, it being there ordered that, +"if an ox gore a man or a woman that they die, then the ox shall be +stoned, and his flesh shall not be eaten." (Exodus, c. xxi., v. 28.) Oxen +and pigs were the animals that most frequently were the subjects of these +strange proceedings, the indictment against the former being for goring +persons, while the latter suffered for killing and sometimes devouring +very young children. + +The earliest instance of which any particulars can be gathered occurred +in 1314, when, according to M. Carlier, who relates the story in his +history of the Duchy of Valois, a bull escaped from a farm-yard in the +village of Moisy, and gored a man so severely that death ensued. The Count +of Valois, being informed of the fatility, directed that the bull should +be captured, and formally prosecuted for causing the man's death. This was +done, and evidence was given by persons who had seen the man attacked and +killed. The bull was thereupon sentenced to suffer death, which was +inflicted by strangulation, after which the carcase was suspended from a +tree by the hind legs. But the affair did not end thus, for the sentence +was appealed against, probably by the owner of the bull, on the ground +that the retainers of the Count of Valois had no legal authority to +execute the sentence. This plea was debated at great length, and the +provincial parliament eventually decided that, though the sentence was a +just one, the Count of Valois had no justiciary authority in the district +of Moisy. + +Next in the order of time comes the trial at Falaise of a sow which had +torn the face and arm of a child, from the effects of which injuries it +died. The sow was condemned to be mutilated in the head and one fore leg, +and afterwards to be strangled, which sentence was executed in the public +square of the town. This was in 1386. Three years later, a horse was +condemned to death at Dijon for having killed a man. In 1403, Simon de +Baudemont, lieutenant of Meulan; Jean, lord of Maintenon; and the bailiff +of Mantes and Meulan, signed an attestation of the expenses incurred in +the prosecution and execution of a sow that had killed and partially eaten +a child. The following is a copy of the document, to which it may be added +that the story of the trial and execution may be found in the "Curiosites +Judiciaires et Historiques du Moyen Age" of M. Aguel:--"Item, for expenses +within the gaol, 6 sols. Item, to the executioner, who came from Paris to +Meulan to put the sentence in execution, by command of our Lord the +Bailiff and of the King's Attorney, 54 sols. Item, for the carriage that +conveyed her to execution, 6 sols. Item, for ropes to tie and haul her up, +2 sols, 8 deniers. Item, for gloves, 12 deniers; amounting in the whole to +69 sols, 8 deniers." In connection with the first item of this curious +document, it may be observed that, in a receipt delivered five years later +by a notary of Pont de l'Arche to the gaoler of the prison of that town, +the same amount is allowed for the daily food of a pig, imprisoned on the +charge of killing a child, as for a man in the same prison. The last item, +the gloves, is supposed by M. Aguel to be a customary allowance to the +executioner. + +In 1457, a sow and her six young pigs were tried at Lavegny, on the charge +of having killed and partially eaten a child. The sow was convicted, and +condemned to death; but the little ones were acquitted on the ground of +their tender years or months, the bad example of their mother, and the +absence of direct evidence of their having partaken of the unnatural +feast. In 1494, sentence of death was pronounced on a pig by the Mayor of +Laon for having mutilated and destroyed an infant in its cradle, full +particulars of which case were given in the "Annuaire du Departement de +l'Aisne" for 1812. The act of condemnation, as there given, concludes as +follows:--"We, in detestation and horror of this crime, and in order to +make an example and satisfy justice, have declared, judged, sentenced, +pronounced, and appointed that the said hog, being detained a prisoner, +and confined in the said abbey, shall be, by the executioner, strangled +and hanged on a gibbet, near and adjoining the gallows in the +jurisdiction of the said monks, being near their copyhold of Avin. In +witness of which we have sealed this present with our seal." This document +was sealed with red wax, and endorsed:--"Sentence on a hog, executed by +justice, brought into the copyhold of Clermont, and strangled on a gibbet +at Avin." + +Three years later, a sow was condemned to be beaten to death for having +mutilated the face of a child of the village of Charonne. The act of +condemnation in this case directed further that the flesh of the sow +should be given to the dogs of the village, and that the owner of the sow +and his wife should make a pilgrimage to the Church of Our Lady at +Pontoise, and bring on their return a certificate that this injunction had +been duly complied with. In 1499, a bull was strangled for having killed a +boy in the lordship of Cauroy, which belonged to the abbey of Beaufire. + +Lionnois gives, in his history of Nancy, a full report of the proceedings +on the delivery of a condemned pig to the executioner of that city in +1572. He mentions, among other details, that the animal, secured by a +cord, was led to a cross near the cemetery; that from the most remote +period the justice of the lord, the abbot of Moyen Moutier, was accustomed +to deliver to the provost, or marshal of St. Diez, near to this cross, all +condemned criminals, that execution might ensue; and that, the said pig +being a brute beast, the mayor and the justice held a conference at that +place, and left the said pig tied with a cord, without prejudice to the +judicial rights of the lord. + +Judicial proceedings against the lower animals were not confined to +France, for the list of such cases compiled by M. Berriat St. Prix, and +published in the "Memoires de la Societe des Antiquaires" for 1829, +mentions one tried at Lausanne in 1364, another at the same town in 1451, +a third at Basle in 1474, another at Lausanne in 1479, and a fifth at the +same place in 1554. Concerning the first of these Swiss trials, Ruchat +states, in his history of the Protestant reformation in Switzerland, that +the victim was a pig that had killed a child in the village of Chattens, +situated among the Jorat hills. It was cited to appear in the Bishop's +Court at Lausanne, convicted of murder, and sentenced to death--the +executioner being a pork butcher. + +The Basle case was a very singular one. A farm-yard cock was tried on the +absurd charge of having laid an egg. It was contended in support of the +prosecution that eggs laid by cocks were of inestimable value for use in +certain magical preparations; that a sorcerer would rather possess a +cock's egg than the philosopher's stone; and that Satan employed witches +to hatch such eggs, from which proceeded winged serpents most dangerous to +mankind. On behalf of the gallinaceous prisoner, the facts of the case +were admitted, but his advocate submitted that no evil animus had been +proved against his client, and that no injury to man or beast had +resulted. Besides, the laying of the egg was an involuntary act, and as +such not punishable by law. If it was intended to impute the crime of +sorcery to his client, he was entitled to an acquittal; for there was no +instance on record of Satan having made a compact with one of the brute +creation. In reply, the public prosecutor stated that, though the Evil One +did not make compacts with brutes, he sometimes entered into them; and +though the swine possessed by devils, as related by the Evangelists, were +involuntary agents, yet they, nevertheless, were punished by being caused +to run down a steep decline into the Lake of Galilee, where they were +drowned. The poor cock was convicted, and condemned to death, not as a +cock, however, but as a sorcerer, or perhaps a devil, in the form of a +cock, on which finding it was, with the egg attributed to it, burned at a +stake, with all the form and solemnity of a judicial execution. + +As the lower animals were amenable to the law in Switzerland in those dark +ages, so, in certain circumstances, they could be put into the witness +box. If a house was broken into between sunset and sunrise, and the +occupier killed the intruder, the act was regarded as justifiable +homicide. But it was thought right to provide by law against the case of a +man, living alone, who might invite a person whom he wished to kill to +spend the evening with him, and having slain him, might assert that he +committed the act in self-defence, or to protect his property, the dead +man having been a burglar. Therefore, when a man was killed in such +circumstances, the occupier of the house was required to produce some +domestic animal that was an inmate of the house, and had witnessed the +tragedy, and to declare his innocence on oath in the presence of such +animal. If the brute witness did not contradict him, he was acquitted; the +law taking it for granted that God, rather than allow a murderer to go +unpunished, would intervene by causing a miraculous manifestation by the +mouth of a dumb witness. + +Even more strange than the trials of oxen, pigs, etc., for offences +against mankind, were the legal proceedings often taken in the middle ages +against noxious insects and the smaller quadrupeds, such as rats. The +"Memoires de la Societe Royale Academique de Savoie" contain a very +curious account of the proceedings instituted in 1445 and 1487 against +certain beetles that had committed great ravages in the vineyards of St. +Julien. Advocates were named on behalf of the vine-growers and the beetles +respectively; but, by a singular coincidence, the insects disappeared when +cited to answer for the mischief they had done, and the proceedings were +in consequence abandoned. That was in 1445. In 1487, however, they +re-appeared, and a complaint was thereupon addressed to the vicar-general +of the Bishop of Maurienne, who named a judge, and also an advocate to +represent the beetles. Counsel having been heard on both sides, the judge +suggested that the vine-growers should cede to the defendants certain +land, where they could live without encroaching on the vineyards. The +plaintiffs agreed to this compromise, with the proviso that, in default +of the defendants accepting the terms offered them, the judge would order +that the vineyards should be respected by the beetles under certain +penalties. The advocate for the beetles demanded time for consideration, +and on the resumption of the proceedings stated that he could not accept, +on behalf of his clients, the suggestion of the court, as the land +proposed to be given up to them was barren, and afforded nothing upon +which they could subsist. The court then appointed assessors to survey the +land in question, and on their report that it was well wooded and provided +with herbage, the conveyance was ordered to be engrossed in due form and +executed. The matter was then regarded by the plaintiffs as settled; but +the beetles discovered, or their advocate discovered for them, that a +quarry of an ochreous earth, used as a pigment, had formerly been worked +on the land conveyed to the insects, and though it had long since been +worked out, some person possessed an ancient right of way to it, the +exercise of which would be extremely prejudicial to them. Consequently, +the agreement was held to be vitiated, and the legal proceedings had to be +recommenced _de novo_. How they eventually terminated cannot be told, +owing to the mutilation of the documents relating to the proceedings +subsequent to 1487. + +Nearly a century later, legal proceedings were commenced by the +inhabitants of a village in the diocese of Autun against the rats by which +their houses and barns were infested; the trial being famous in the annals +of French jurisprudence as that in which Chassanee, the celebrated +jurisconsult, first achieved distinction. The rats not appearing on the +first citation, Chassanee, who was retained for the defence, argued that +the summons was of too local a character, and that, as all the rats in the +diocese of Autun were interested in the case, they should be summoned +throughout the diocese. This plea being admitted, the cure of every parish +in the diocese was instructed to summon all the rats within its limits to +attend on a day named in the summons. The day having arrived, and the rats +failing to appear, Chassanee said that, as all his clients were summoned, +including old and young, sick and healthy, great preparations had to be +made, and certain necessary arrangements effected, and he had to ask, +therefore, for an extension of time. This also being granted, another day +was appointed, but again not a single rat put in an appearance. Chassanee +then made an objection to the legality of the summons. A summons from that +court, he said, implied full protection to the parties summoned, both on +their way to it and on their return to their homes; and his clients, the +rats, though most anxious to appear in obedience to the court, did not +dare to leave their homes to come to Autun, on account of the number of +evil-disposed cats kept by the plaintiffs. If the latter would enter into +bonds, under heavy pecuniary penalties, that their cats should not molest +his clients, the summons would be immediately obeyed. The court +acknowledged the validity of this plea, but the plaintiffs declined to be +bound for the good behaviour of their cats. The further hearing of the +case was, therefore, adjourned _sine die_, and thus Chassanee gained his +cause. Full particulars of the proceedings are given in a Latin work, +written by him, and published in 1588. + + + + +Devices of the Sixteenth Century Debtors. + +BY JAMES C. MACDONALD, F.S.A., SCOT. + + +In the year 1531, a certain John Scott, residenter in the good town of +Edinburgh, was financially in a condition of chronic decrepitude. His +household goods were rapidly going to the hammer, and one creditor, bolder +than his fellows, decided to attack the impecunious personality of the +common debtor. Writs from court and messengers of the law were severally +set in motion; and on the earliest possible day one of those myrmidons +served upon the debtor personally, a writ bearing the terrible title of +"Letters of IV Forms." The "coinless" John was therein warned that if he +failed forthwith to pay or satisfy the lawful debt, for which decreet has +gone out, he would (unless he went to prison in a peaceful way) be +declared a rebel against the King's Majesty. + +Now John reasoned with himself that payment he could not make; outlawry he +rather feared; and _squalor carceris_ he could not endure. What was to be +done? He had heard of the horns of the Hebrew altars: how that personal +safety resulted from any manual attachment thereto. Was there some such +boon in bonny Scotland? There was Holyrood, with its sanctified abbey. It +was near; any port in such a storm. Down the Canongate, and straight to +the sanctuary he ran--all to the manifest loss, injury, and damage of his +creditors who followed, having got wind of this unique _hegira_ from the +red-nosed city guard. In vain the creditors pleaded; equally in vain were +their threats. The canny Scot was warranted safe and skaithless against +"all mortal." + +Annoyed at his debtor's immunity from arrest, chagrined that any money +John possessed had now been further dissipated in the Abbey admission dues +to its protection giving portals--each creditor turned sadly to his "buiks +of Compts" and superscribed over against John Scott's name the expressive +legend "bad debt." And this John Scott became the forerunner, _de facto_, +of a long line of "distressed" persons. Nay more, he secured an +immortality as lasting as that of the sovereign whose solemnly sounding +"Letters of IV Forms," he spurned and left unanswered. + +A generation later, and another _new_ way of paying old debts is placed on +record. To balance international honours it is of Anglican origin. +Scoggan, the jester of the Elizabethan court, falls into financial +distress. He borrows L500 from the Queen--_mirabile dictu_. Only a fool +would have tried such a thing. It was put down as a "short loan," but it +soon became clear to the royal lender that its longevity would outlast her +reign. To all demands the clownish borrower smilingly cried "long live the +queen," until at last his existence as court fool was in danger of being +ended. But he would rather die than be evicted; and die he did. He became, +theatrically speaking, defunct. + +The _late_ Scoggan was accordingly borne, to solemn music, past the royal +garden; and the queen, seeing the mournful show--and knowing nought of its +hollowness--asked whose it was. "Scoggan, Your Majesty," was the reply. +"Poor fellow," she exclaimed, "the L500 he owed me I now freely forgive." +Whereupon the "defunct" sat up and declared that the royal generosity had +given him a new lease of life. "Thou rogue," said the queen, "thou art +more rogue than fool. Thou hast improved upon the plan of that John Scott, +who, in the reign of my late cousin of Scotland, as Sir James Melvil tells +me, got rid of the oldest debt and the longest loan." + + + + +Laws Relating to the Gipsies. + +BY WILLIAM E. A. AXON, F.R.S.L. + + +Early in the fifteenth century the gipsies made their appearance in +Europe, and as strangers were not favourably regarded in those days the +advent of these dark-skinned people, speaking a language of their own, +dressing in a picturesque, but uncommon costume, and having their own +rulers, and their own code of morals, and owning no allegiance to the laws +of the land in which they sojourned, naturally attracted attention. At +first some credence was given to their high-sounding pretensions, and the +dukes, counts, and lords of Lesser Egypt received safe conducts and +protection under the idea that they were engaged in religious pilgrimages. +But the seal of the Emperor Sigismund would not protect them when the term +of their pretended pilgrimage had expired, nor would the manners and +customs of the gipsies substantiate any special claim to sanctity or +religious fervour. Even the ages when the divorce was most marked between +religion and morals would be staggered by the thefts, and worse outrages +that were laid to their charge. Sigismund's safe conducts are said to have +been given not as Emperor, but as King of Hungary, and some of the gipsies +were early employed as ironworkers in the realm of St. Stephen. In 1496 +King Ladislaus gave a charter of protection to Thomas Polgar and his +twenty five tents of gipsies because they had made musket bullets and +other military stores for Bishop Sigismund at Fuenfkirchen, but whatever +consideration may have been shewn to them in the beginning, they speedily +became objects of suspicion and dislike. There is not a country in Europe +which has not legislated against them or endeavoured to exile them by +administrative acts. Their expulsion from Spain was decreed in 1492, from +France in 1562, and from various Italian states about the same time. +Denmark, Sweden, and the Netherlands have also pronounced against them. +The Diet of Augsburg in 1500, ordered their expulsion from Germany on the +ground that they were spies of Turkey seeking to betray the Christians. +This edict, though several times repeated, was non-effective. + +In Hungary and Transylvania the authorities, hopeless of getting rid of +the troublesome immigrants, took strong measures to bring them into line +with the rest of the population. They were prohibited from using the +Romany tongue, from retaining their gipsy surnames, from wandering about +the country, from eating carrion, and from dealing in horses. Those fit +for military service were to be taken into the army, and the rest were to +live and dress and deport themselves in the same manner as the peasantry +of the country. These regulations were not wholly effective, but the +result of the efforts put forward by Maria Theresa, and her successors may +be seen in the sedentary gipsies of the Austro-Hungarian Empire. At times +they have been subjected to fierce persecution. In 1782, a dreadful +accusation was brought against the Hungarian Romanis, when more than a +hundred of them were accused of murder and cannibalism. The gang were said +to have lived by highway robbery and murder, and to have cooked and eaten +the bodies of their victims. At Frauenmark four women were beheaded, six +men were hanged, two were broken on the wheel, and one was quartered +alive. Altogether forty-five were executed and many more were imprisoned. +How much of this was suspicion substantiated by torture? + +The gipsies came frequently in contact with the myrmidons of the law. "As +soon as the officer seizes or forces away the culprit," says Grellmann, +"he is surrounded by a swarm of his comrades who take unspeakable pains to +procure the release of the prisoner.... When it comes to the infliction of +punishment, and the malefactor receives a good number of lashes well laid +on, in the public market place, a universal lamentation commences among +the vile crew; each stretches his throat to cry over the agony his dear +associate is constrained to suffer. This is oftener the fate of the women +than of the men; for as the maintenance of the family depends most upon +them, they more frequently go out for plunder." It is a noteworthy fact +that Grellmann writing in 1783, has not a word of condemnation of the +barbarous practice of flogging women. + +In England as elsewhere the earliest of these romantic people were +welcomed. In 1519, the Earl of Surrey entertained "Gypsions" at Tendring +Hall, Suffolk, and gave them a safe-conduct. Still earlier in 1505, +Anthony Gaginus, Earl of Little Egypt, had a letter of recommendation +from James IV. of Scotland to the King of Denmark. James V. bestowed a +charter upon James Faa, Lord and Earl of Little Egypt, by which he was +privileged to execute justice upon his followers, much in the same way as +the great barons were authorised to deal with their vassals. But they soon +fell out of favour. In England, in the twenty-second year of Henry VIII. +an act of parliament was passed which sets forth that there are certain +outlandish people, who not profess any craft, or trade, whereby to +maintain themselves, but go about in great numbers from place to place, +using craft and subtlety to impose on people, making them believe that +they understood the art of foretelling to men and women their good or ill +fortune, by palmistry, whereby they frequently defraud people of their +money, likewise are guilty of thefts and highway robberies; it is ordered +that the said vagrants, commonly called Egyptians, in case they remain +sixteen days in the kingdom, shall forfeit their goods and chattels to the +king and be further liable to imprisonment. In 1537, Cromwell writes to +the Lord President of the Marches of Wales, that the "Gipcyans" had +promised to leave the kingdom in return for a general pardon for their +previous offences, and exhorts the authorities to see that their +deportation is effected. Many were sent to Norway, but the effort to +extirpate them from the kingdom entirely failed.[10] By an act of 1554, a +penalty of L40 was to be inflicted upon any one knowingly importing them. +Those gipsies, following "their old accustomed devlishe and noughty +practises," were to be treated as felons, but exception was made in favour +of such as placed themselves in the service of some "honest and able +inhabitant." Many were executed, but the remnant survived and managed to +hold a yearly meeting at the Peak Cavern or Kelbrook, near Blackheath. +Still sterner was the law passed in 1562-3, which made it felony for any +one born within the kingdom to join the fellowship of vagabonds calling +themselves Egyptians. The previous acts had referred to the gipsies as an +outlandish people, but now the native born were brought equally within the +meshes of this sanguinary law. "Throughout the reign of Elizabeth," as +Borrow remarks, "there was a terrible persecution of the gipsy race; far +less, however, on account of the crimes which were actually committed, +than from a suspicion which was entertained that they harboured amidst +their companies priests and emissaries of Rome." The harrying of the +missionary priests was in part dictated by the spirit of religious +persecution, but in a still greater degree by the conviction that they +were political emissaries, aiming at the subversion of the kingdom. The +priests on the English mission had often to disguise themselves, and at +times may have assumed the garb of wandering beggars, but they are not +likely to have consorted with the Romans, whose language would be strange +to them, and whose heathenish indifference to all dogmas, rites, and +ceremonies, would be specially distasteful to zealous Catholics. + +After "the spacious times" of great Elizabeth, the gipsies had a rest from +special oppression, though they were of course still in jeopardy from the +harsh laws as to vagrancy and those minor crimes, that are their +characteristic failings. Romany girls were flogged for filching and +fortune-telling, and Romany men were hanged for horse-stealing. They were +looked upon with suspicion, and it was easy enough to raise prejudice +against them. This was shewn in the notorious case of Elizabeth Canning. +She was a girl of eighteen, employed as a domestic servant at +Aldermanbury, and in 1753, disappeared for four weeks. On her return she +asserted that she had been abducted and detained in a loft by gipsies, who +gave her only bread and water to eat. Their aim she declared was to induce +her to adopt an immoral life. Mrs. Wells, Mary Squires, George Squires, +Virtue Hall, Fortune and Judith Natus, were arrested, and Wells and +Squires were committed for trial. The proceedings, partly before Henry +Fielding the novelist, were conducted with a laxity that seems now to be +almost inconceivable. At the Old Bailey trial there was a remarkable +conflict of evidence, but in the end Mrs. Wells was condemned to be burned +in the hand, and Mary Squires to be hanged. Sir Christopher Gascoyne then +Lord Mayor, was satisfied that there had been a miscarriage of justice and +made enquiries, a respite was obtained and finally the law officers of the +crown recommended the grant of a free pardon to Squires. The natural +sequel was the prosecution of Canning for perjury. Fortune and Judith +Natus now swore that they had slept each night in the loft where Canning +declared she had been imprisoned, but it was very natural that people +should ask why they had not given this important evidence at the previous +trial. Mary Squires' alibi was sworn to by thirty-eight witnesses who had +seen her in Dorsetshire, and was, to some extent, invalidated by +twenty-seven who swore that she was in Middlesex at the time. As she was +too remarkable for her ugliness to be easily mistaken, there must have +been some very "hard swearing." Canning was convicted of perjury and +transported, but the secret of her absence from New Year's Day, 1553, +until the 29th of January was never divulged. The case excited great +interest, and the controversy divided the whole of the busy, idle "town," +into "Canningites" and "Gipsyites." + +The Tudor law (22 Henry VIII., c. 10) was repealed as "of excessive +severity" in 1783 (23 George III., c. 51). The later legislation provides +that persons wandering in the habit and form of Egyptians, and pretending +to palmistry and fortune-telling, are to be deemed rogues and vagabonds +(17 Geo. II., c. 5., 3 Geo. IV., c. xl.), and is liable to three months' +imprisonment (5 Geo. IV., c. lxxxiii.), and encamping on a turnpike road +involved a penalty of forty shillings (3 Geo. IV., c. cxxvi., 5 and 6 +William IV., c. 50). Some of the older enactments remained on the statute +book, though not enforced, until the passing of the statute law Revision +Act of 1863, by which many obsolete parliamentary enactments were swept +away. + +By the famous Poynings Act, English laws were declared applicable to +Ireland. The gipsies were never common in the Isle of Saints, but by a +special act they were, in 1634, declared to be rogues and vagabonds (10 +and 11 Car. I., c. 4). + +There are acts of the Scottish Parliament as early as 1449, directed +against "sorners, overliers, and masterful beggars with horse, hounds, or +other goods," and that this would well describe the earlier gangs of +gipsies is undeniable, but whether they were Romanis or Scots is a matter +of controversy not easily decided in the absence of more definite +evidence. A tradition of the Maclellans of Bombie says that the crest of +the family was assumed on the slaying of the chief of a band of saracens +or gipsies from Ireland. The conqueror received the barony of Bombie from +the king as a reward. Having thus restored the fortunes of the family, the +young laird of Bombie took for his crest a moor's head with the motto +"Think on." If this legend was evidence, which it is not, there were gipsy +marauders in Galloway in the middle of the fifteenth century. But in 1505, +we have the entry of a gift by the King of Scotland of seven pounds to the +"Egiptianis." In the same year there is a letter already named, in which +"Anthonius Gagino," or Gawino, is recommended to the King of Denmark. In +1527, Eken Jacks, master of a band of gipsies, was made answerable for a +robbery from a house at Aberdeen. In 1539, a similar charge was brought, +but not proved, against certain friends and servants to "Earl George, +callet of Egipt." This chieftain was one of the celebrated Faa tribe. In +1540, George and John Faa were ordered by the bailies of Aberdeen to +remove their company and goods from the town. This is the first action of +a Scottish authority against the gipsies as gipsies. But, by a charter +dated four days before the municipal decree, James V. confirms to "our +lovit Johnne Faw, lord and erle of Little Egipt," full power to execute +justice over his tribe, some of whom had rebelled and forsaken his +jurisdiction. In 1541, an act of the Lords of Council and Session decreed +the banishment of the gipsies from the realm within thirty days, because +of "the gret theftes and scathis" done by them. Some of them passed over +the border, but not for long, and in 1553 the Faas again had a charter +upholding their rights of lordship against Lalow and other rebels of their +company. And in the next year their is a pardon to four Faas for the +"slachter of umquhile Ninian Smaill." + +The gipsies had the favour of the Roslyn family, and it is said that Sir +William Sinclair rescued "ane Egiptian" from the gibbet in the Burgh Muir, +"ready to be strangled," and that in gratitude the tribe used to go to +Roslyn yearly and act several plays in May and June. In 1573, and again in +1576, the gipsies were ordered to leave the realm, but the decree was +never put in force. When Lady Foulis was tried in 1590, one charge was +that she had sent a servant to the gipsies for advice as to poison to be +administered to "the young laird of Fowles and the young Lady Balnagoune." +When James VI. held a High Court of Justicary at Holyrood in 1587, for the +reformation of enormities, the offenders to be dealt with included "the +wicked and counterfeit thieves and limmers calling themselves Egyptians." + +There were several enactments of the Scottish Parliament in 1574, 1579, +1592, and 1597. These were all aimed at the nomadic habits of the race, +but the settled gipsies were left unmolested. "Strong beggars and their +children" were to be employed in common work for their whole life, and it +is said that salt masters and coal masters thus made serfs of many. In +1603, there was a special "Act anent the Egiptians," which declared it +"lesome" for anyone to put to death any gipsy, man, woman, or child, +remaining in the country after a certain date. Moses Faa appealed against +it as a loyal subject, and found a security in David, Earl of Crawford. +This was in 1609, but in 1611 four of the Faas were tried at Edinburgh +under the acts against the gipsies, and were convicted and executed on the +same day. Constables and justices of the peace were exhorted to put the +law in force. Four gipsies, who could not find securities that they would +leave the kingdom, were sentenced to be hanged in 1616, but were reprieved +and probably released. In 1624, eight were executed on the Burgh Muir, but +the women and children were simply exiled. In 1636, a number were +condemned at Haddington, the men to be hanged and _the women to be +drowned_. Women who had children were to be scourged and branded in the +face. In the latter half of the seventeenth century many were sent to the +plantations in Virginia, Barbadoes, and Jamaica. + +Generally, however, the stringent laws were not stringently administered, +and from fear or influence of some kind the gipsies often escaped. + +The British gipsies in our own day find that whilst the law is dealt out +to them with perfect impartiality, the social pressure is decidedly +against them. At such watering-places as Brighton and Blackpool--to name +two extremes--they tell fortunes as though there were no statutes in that +case made and provided. But it is not easy for them to keep on the road. +The time cannot be far off when they must live with the _gaujos_[11] as +house-dweller or perish from the land. + + + + +Commonwealth Law and Lawyers. + +EDWARD PEACOCK, F.S.A. + + +The great Civil War as it is called, that is the struggle between Charles +the First and his parliament, is memorable in many respects. No student of +modern history can dispense with some knowledge of it, and the more the +better, for it was the result of many things which had happened in the far +distant past, and we may safely say that the great French Revolution, +which produced some good, and such an incalculable amount of evil would +have run a far different course to that which it did, had not the +political ideals of the men who took part in that terrible conflict been +deeply influenced by what had taken place in England a century and a half +before. + +As to the civil wars which had occurred in England in previous days, +little need be said. They were either dynastic--the struggle of one man or +one family against another--or they were religious revolts against the +Tudors, by those who vainly endeavoured to re-establish the old order of +things in opposition to the will of the reigning monarch and the political +servants who supported the throne. The struggle between Charles and the +Long Parliament was far different from this. That religion in some degree +entered into the conflict which was raging in men's mind long ere the +storm burst it would be childish to deny, but it was not so much, except +in the case of a very few fanatics, a conflict between different forms of +faith as because a great number of the English gentry, and almost the +whole of the mercantile class, which had then become a great power, felt +that they had the best reasons for believing that it was the deliberate +intention of the King and the desperate persons who advised him, to levy +taxes without the consent of parliament. This may occasionally have been +done in former reigns, but it is the opinion of most of those who have +studied the subject in latter days, so far as we can see, without +prejudice, that in every case it was illegal. Whether this be so or not, +it must be remembered that times were in the days of Charles the First, +far different from what his predecessors the Plantagenets and Tudors had +known. A great middle class had arisen partly by the division of property +consequent on the dispersion of the monastic lands, and partly also by the +break up of the vast feudal estates, some of which had fallen into the +hands of the Crown by confiscation, others been sold by their owners to +pay for their own personal extravagence. + +Though murmurs had existed for many years, it was not until the memorable +ship-money tax was proposed that affairs became really grave. Had England +been threatened by an invasion such as the Spanish Armada, there can be no +doubt that a mere illegality in the mode of levying taxes to meet the +emergency would have been regarded as of little account, but in the +present case there was no overwhelming need, and it must be borne in mind +that to add to the national irritation the two first Stuarts were almost +uniformally unsuccessful in their foreign wars. It is to Attorney General +Noy that we owe the arbitrary ship-money tax. He was a dull, dry, legal +antiquary of considerable ability, whose works, such as his _Treatise +concerning Tenures and Estates_; _The Compleat Lawyer_; _The Rights of the +Crown_, and others of a like character, are yet worth poring over by +studious persons. Such a man was well fitted for historical research, no +one of his time could have edited and annotated _The Year Books_ more +efficiently, but he had no conception of the times in which he lived, the +narrow legal lore which filled his mind produced sheer muddle-headedness, +when called upon to confront an arbitrary king face to face with an +indignant people. That there was less to be said against this form of +royal taxation than any other that legal ingenuity could light upon must +be admitted, but as events shewed the course he advised the king to take, +was little short of madness. John Hampden, who represented one of the +oldest and most highly respected races of the English gentry--nobles as +they would be called in any land but our own--set the example of refusing +to pay this unjust levy. The trial lasted upwards of three weeks, and the +men accounted most learned in the law were employed in the case. Sir John +Bankes, the owner of Corfe Castle, Sir Edward Littleton, and others were +for the King. Oliver Saint John and Mr. Holborn were for Hampden. +Concerning Holborn little seems to be known, but Saint John made for +himself a great name. His speeches are marvellously learned, shewing an +amount of reading which is simply wonderful when we call to mind that in +those days all our national records were unprinted, and almost all of them +without calendar or index of any sort. It must, however, be remembered +that in those days lawyers of both branches of the profession were well +acquainted not only with the language in which our records were written, +but also with the hands employed at various periods, and the elaborate +system of contraction used in representing the words. + +A full report of this memorable trial is to be found in Rushworth's +_Historical Collections_, volume ii. parts 1 and 2. Carlyle in his +_Letters and Speeches of Oliver Cromwell_, in the emphatic diction he was +accustomed to use says that Saint John was "a dark, tough man of the +toughness of leather,"[12] but he does not dwell on his great learning and +general ability, as he ought to have done. That Saint John's heart was in +his work for his client we are well assured. That from a legal point of +view, Hampden was his only client, we well know, but as a matter of fact, +it is no exaggeration to say that he represented the people of England. +The decision went in favour of the crown, which was from the first a +foregone conclusion. It was a legal victory, but like many lesser +victories won before and since success was the sure road to ruin. The sum +contended for was absurdly small--twenty shillings only--but on that pound +piece hung all our liberties; whether we were to continue a free people or +whether we were to have our liberties filched away from us, as had already +been the case in France and Spain. A sullen discontent brooded over the +land, there was no rioting, but in hall and castle, country parsonage and +bar-parlour, grave men were shaking their heads and asking what was to +come next, all knew that a storm was brewing, the only question was when +and where it would burst. Events changed rapidly, and Saint John though he +took no very prominent part in the party struggles ere the war broke out, +was undoubtedly the chief legal adviser of those who were in opposition to +the faction which desired to make England a despotic monarchy. Such was +the case during the war which ended in the tragic death of the king, and +the establishment of a Republican form of government under the name of the +Commonwealth. Saint John once again appears in a public manner which +indicates that he was a brave man who had no more fear of the pistol and +dagger of the assassin, than he had of the corrupt dealings of those who +for a time, to their own imminent peril had misgoverned our country. This +time we find him sent by the Commonwealth as ambassador to the seven +United Provinces, then as now commonly called Holland, on account of the +two provinces of north and south Holland, being by far the most +influential states in that republic. The Dutch though republicans +themselves, had during the latter part of our Civil War shewn sympathy +with the cause of the Royalists. After the execution of the king, this +feeling became naturally much intensified. On the other hand our newly +established republic was for many reasons both of politics and religion +very desirous of being on good terms with a sister commonwealth so very +near at hand. To explain matters and perhaps to settle the heads of a +definite treaty, the English government sent Isaac Doreslaus, or Doorslaer +as their ambassador. He was by birth a Dutchman and a very learned lawyer. +He had come to this country before, the war broke out in 1642. He was then +made, probably through the influence of his friend Sir Henry Mildmay, +"Advocate of the Army."[13] His great knowledge of Civil Law, which had +been much neglected in England in times subsequent to the Reformation, +rendered him of great service in his new position of Judge Advocate of the +Army. For the same reason he soon afterwards was created one of the judges +of the Admiralty Court. He became especially hateful to the Royalists from +his having assisted in preparing the charges against Charles the First. In +May, 1649, he sailed for Holland as Envoy of the English government to the +Hague. He had only spent a short time there, when, while at supper in the +Witte Zwaan (White Swan) Inn, some five or six ruffians with their faces +hidden by masks, rushed into the room where he, in company with eleven +other guests were sitting. Two of these wretches made a murderous attack +on a Dutch gentleman of the company, mistaking him for Dorislaus. Finding +out their error they set upon the Envoy and slew him with many wounds, +crying out as they did so, "Thus dies one of the King's judges." The +leader of this execrable gang was Col. Walter Whitford, son of Walter +Whitford, D.D. The murderer received a pension for this "generous +action"[14] after the Restoration. + +The English Parliament gave their faithful servant a magnificent funeral +in Westminster Abbey, June 14, 1649, but when Charles the Second ascended +the throne, his body was disturbed. His dust rests along with that of +Admiral Blake and other patriots in a pit somewhere in Saint Margaret's +churchyard.[15] Dorislaus, though a foreigner, ought to rank among our +great English lawyers, for his services were devoted entirely to his +adopted country. Whatever our opinions may be as to those differences +which were the forerunners of so much bloodshed and crime, we must bear in +mind that many of the foremost men on both sides were actuated by the +highest principles of honour. The study of Canon Law had been prohibited +in the preceding century, and the Civil Law with which it has so intimate +a connection, though not made contraband, was so much discouraged that it +is no exaggeration to say that the knowledge of it was confined to a very +few. Selden, whose wide grasp of mind took in almost every branch of +learning as it was known in his day, is the only English lawyer we can +think of who had mastered these two vast subjects. This is the more +remarkable as he was of humble parentage; the son of a wandering minstrel +it is said, but from the first his passion for learning overmastered all +difficulties. It must, however, be borne in mind that according to the +custom of those times when his abilities became known, he met with more +than one generous patron. + +We must for a moment return to Saint John who was selected in 1652, to +represent his country in Holland. There was not, as there is now a trained +body of men devoted to the diplomatic service. The reasons why Saint John +was chosen for this important office are not clear. He was a great and +widely read lawyer, who we apprehend was trusted with this difficult +mission, not only because the government were assured of his probity, but +because the relations between Holland and this country depended on many +subtile antiquarian details which a mere student of the laws as they were +then, would have been unable to unravel. The basis of the sea codes by +which the various nations of christendom professed to be ruled, was the +Laws of Oleron (Leges Uliarences). They were promulgated by Richard the +First of England, on an island in the Bay of Acquitaine. How far they were +ever suited for their purpose may be questioned, but it is certain that as +centuries rolled on, they had though often quoted, ceased to have any +restraining power, and as a consequence Spain, England, Holland, and other +powers were guilty of constant acts of what we should now call piracy. A +lasting treaty with Holland, could Saint John achieve it, would have been +of immense advantage, but the Dutch were in no mood for an alliance on +equal terms. It was a brave thing for Saint John to undertake so arduous a +mission, for he not only run the risk of ignominous failure, but also was +in no little danger from the savage desperadoes who thought they did the +cause of their exiled master service by murdering the agents of the +English government. When Saint John arrived at the Hague he was put off by +slow and evasive answers, which soon shewed to him not only that his own +time was being wasted, but what was to him of far more account, the honour +of his country was being played with. He gave a proud, short, emphatic +reply to the Dutch sophistries, and at once returned home again, to cause +the celebrated Navigation Act to be passed, forbidding any goods to be +imported into England, except in English ships, or in the ships of the +country where the articles were produced. This was well-nigh ruin to the +trade of the Dutch, who were then the great carriers of the world. + +In no sketch however brief of the lawyers of this disturbed time, can the +name of William Prynne be entirely passed over, and yet it is not as a +lawyer that his name has become memorable. Had he been a mere barrister at +law he would long since have been forgotten, but he was an enthusiastic +puritan of the presbyterian order, and a no less enthusiastic antiquary. +He had probably read as many old records as Saint John or Selden, but had +by no means their faculty of turning them to good account. He first comes +prominently before us as attacking the amusements of the court, especially +theatrical entertainments. For this he was proceeded against in the Star +Chamber, sentenced to pay five thousand pounds and have his ears cut off; +for an attack on episcopacy he was fined another five thousand pounds and +sentenced once more to have his ears cut off. He afterwards bore a +prominent part in the trial of Archbishop Laud. All along he continued to +pour forth a deluge of pamphlets. He attacked Cromwell with such boldness, +that the Protector felt called upon to imprison him in Dunster Castle, +where however, his confinement was of a most easy character. He is said +while there to have amused himself by arranging the Lutterell Charters, +for which that noble home is famous. He took the side of Charles the +Second at the Restoration, and as a reward was made keeper of the records +in the Tower, a post for which he was peculiarly well fitted. + +There is probably nothing which distinguishes the periods of the +Commonwealth and the Protectorate more markedly from other times of +successful insurrection, than the very slight alteration which the new +powers introduced into the laws of England. The monarchy, it is true, was +swept away, but the judges went on circuit; the courts of Chancery and +common-law sat as usual, the Lords of Manors held their courts, and the +justices of peace discharged their various functions as if they had been +the times of profoundest peace. No confiscations took place, as had been +the case in the reign of Henry the Eighth and his successor, except in +cases where the owners had been engaged in what the state regarded as +rebellion, and even with regard to those who had fought in what is known +as the first war, almost everyone was let off by a heavy fine. A list of +these sufferers may be seen in _A Catalogue of the lords Knights and +Gentlemen that have compounded for their Estates_ (_London Printed for +Thomas Dring at the Signe of the George in Fleet Street_, neare Clifford's +Inne, 1655.) The book is imperfect and very inaccurate. This is not of +much consequence however, as the documents from which it is compiled known +as _The Royalist Composition Papers_, are preserved in the record office, +and are open to all enquirers. Those who madly engaged in what is known as +the second war, had their estates confiscated by three acts of parliament +of the years 1651 and 1652. These were reprinted and indexed for the +_Index Society_ in 1879. These latter had their estates given back to +themselves or their heirs on the Restoration. It does not seem that those +who were fined, except in a very few cases had any return made to them. +There have been few civil wars ancient or modern wherein the unsuccessful +have been so tenderly treated. Yet sufferings of the poorer classes among +the Royalists must have been very great. Next to the arbitrary conduct of +the King and those immediately about his person, was the provocation which +the Parliamentarians thought that the established church had given, +firstly because many of the bishops and clergy maintained an extreme +theory of the Divine Right of Kings, which is said first to have been +taught in this country by Archbishop Cranmer. If this opinion were really +accepted as more than a mere figure of flattering oratory, it made those +who complied with it mere slaves to the sovereign, however tyrannical or +wicked he might prove himself. The second ground of resentment was that +they thought Archbishop Laud and many of the bishops and clergy, concealed +Roman Catholics, "disguised Papists," as the common expression ran. We do +not believe this charge with regard to Laud or most of the others so +rashly accused. We are _quite sure_ it was not so if their writings are to +be taken as a test of their feelings. Whatever may have been the truth, +there is no doubt that even the more tolerant of what may be called the +low-church party feared the worst. As early as 11th February, 1629, Oliver +Cromwell, who was then member for Huntingdon, made a speech in which he +said, "He had heard by relation from one Dr. Beard ... that Dr. Alablaster +had preached flat Popery at Paul's Cross, and that the Bishop of +Winchester (Dr. Neale), had commanded him as his Diocesan, he should +preach nothing to the contrary."[16] So inflamed, however, were men's +minds that as soon as the Parliamentary party was strong enough, Laud was +indicted for high treason and beheaded. + +One of the first works of the Parliament when strong enough, was to +abolish the _Book of Common Prayer_, and put a new compilation called the +_Directory_ in its place. The use of the Prayer Book was forbidden not +only in public offices of religion, but in private houses also. For the +first offence five pounds was to be levied, for the second ten, and for +the third the delinquent was to suffer one year's imprisonment.[17] +Whether this stringent law was rigorously inforced we cannot tell. +Probably in many cases the local justices would be far more lenient to the +clergy who were their neighbours, that would be the legislators at +Westminster, whose passions were fanned by listening to the popular +preachers. Not content with interfering with the service-book, various +acts were passed relating to "Scandalous, Ignorant, and Insufficient +ministers." That the commissioners who put these acts in force removed +some evil persons we do not doubt, but if John Walker's _attempt towards +recovering an account of the number and sufferings of the Clergy of the +Church of England, who were sequestered ... in the Grand Rebellion_, be +not very grossly exaggerated, which we see no reason, to believe, many +innocent persons must have had very hard treatment. + +The marriage laws of England were in a vague and unsatisfactory state from +the reign of Edward the Sixth, until the Commonwealth time. An attempt was +made in 1653 to alter them. Banns were to be published either at Church or +in the nearest market town on three market days, after this the marriage +was to take place before a justice of peace. Many entries of marriages of +this kind are to be found in our parochial registers. English was made the +language of the law in 1650, but Latin was restored to the place of honour +it had so long held, when the Restoration took place. + + + + +Cock-Fighting in Scotland. + + +It is highly probable that the Romans introduced cock-fighting into this +country. It is generally believed that the sport was made popular by +Themistocles. On one occasion he saw two cocks fighting, and their courage +greatly impressed him, and he felt such exhibitions might teach a useful +lesson of bravery to those who witnessed them. Periodical contests were +exhibited, and were popular amongst the Greeks and Romans and with other +nations, and were much appreciated by a large section of the inhabitants +of this land. In "Bygone England," by William Andrews, F.R.H.S. (London +1892), will be found a long account of "Fighting-Cocks in Schools." One of +the earliest accounts of the pastime in England, says Mr. Andrews, occurs +in a "Description of the City of London," by William Fitzstephen, who +wrote in the reign of Henry II., and died in the year 1191. He records +that it was the annual custom on Shrove Tuesday for the boys to bring +their game cocks to the schools, to turn the schoolrooms into cockpits, +the masters and pupils spending the morning witnessing the birds fighting. + +Old town accounts contain many references to this custom, for example at +Congleton, Cheshire, is the following item:-- + + "1601. Payd John Wagge for dressynge + the schoolhouse at the great + [Congleton] cockfyghte." L0 0s. 4d. + +Hugh Miller, the famous geologist, who was born in the year 1802, in his +popular volume "My Schools and Schoolmasters," gives a graphic account of +that amusement in the Cromarty grammar school where he received his +education. "The school," says Miller, "like almost all other grammar +schools of the period in Scotland, had its yearly cock-fight, preceded by +two holidays and a half, during which the boys occupied themselves in +collecting and bringing up the cocks. And such was the array of fighting +birds mustered on the occasion, that the day of the festival from morning +till night used to be spent in fighting out the battle. For weeks after it +had passed, the school floor continued to retain its deeply stained +blotches of blood, and the boys would be full of exciting narratives +regarding the glories of gallant birds who had continued to fight until +their eyes had been pecked out; or who in the moment of victory, had +dropped dead in the middle of the cock-pit." Miller at some length +denounces the cruel sport. + +In England cock-fighting is prohibited by statute 12 and 13 Vict. 3, 92, +under which every person who shall in any manner encourage, aid, or assist +at the fighting or baiting of any bull, bear, badger, dog, cock, or other +animal, shall forfeit and pay a penalty not exceeding L5 for every such +offence. In Scotland it was not illegal until quite recently. An act was +passed in 1850 known as the "Cruelty to Animals (Scotland) Act," but the +wording of the statute was found not to include the game or fighting-cock. +The sport became popular and the law could not touch those that took part +in the cruel amusement. It was felt to be a national scandal, and to +prevent it, a short statute was passed on 30th May, 1895, whereby the +definition of the word _animal_ in the 11th section was amended by adding +at the end thereof the words "or any game or fighting-cock, or other +domestic fowl or bird." + +Mr. Robert Bird, the genial and gifted author of "Law Lyrics," a volume +which has been warmly welcomed by the public and the press, has made +cock-fighting the subject of a clever poem. + + COCKIELEERIE-LAW. + BY ROBERT BIRD. + _In Full Court, Edinburgh, 23rd December, 1892._ + + Six legal wigs, like well-plumed tappit hens, + Sat brooding o'er a pair of fighting cocks; + While lesser wigs, begowned, and brief in hand, + Declaimed in flowing periods, of the fray, + Like ancient bards, that wanted but their harps, + Their wallets, ballad verse, and song, to make + The very goose quills, sleeping on the bench, + Awake! take sides and spill each other's ink. + And as they spake, a legal fog dropt down + Upon the learned six, and each beheld, + In green mirage, born of the cloud of words, + Two cocks, Game cocks, crop-combed, erect, and slim, + With feathers dipped in crimson, gold, and blue, + Frill-necked, with trailing wings and spurs of steel, + That on each other flew and pecked and spurred, + And spurred and pecked again, until the Court + Reeked like a cock-pit, and the crowd of wigs,-- + Of boyish idle wigs,--took bonnet shapes + That hooded scowling brows of cursing men, + Who laid their bets on this bird, and on that, + As, with quick panting breath and beaks agape, + They pranced, flew, fought, until the oaken bar + Seemed spattered o'er with feathers and cock blood. + At length one cock the other overthrew, + And struck quick spurs into his quivering breast + Until he died; then he, with croaking crow, + Fell, wounded, bleeding, dying by his side + Amid the applauding cheers of thirsty throats, + Soon to be slaked with liquid bets, and so + The battle ended, but the fog remained. + + A rustling of silk plumes upon the bench, + Five wigs bent low, and thus great Solon spake-- + "'Twas in Kilbarchan that this fight was fought, + And straight the men who prompted it were ta'en, + And jailed, and tried, and sentenced for the same; + But now they seek release, and this their plea, + That in the gracious Act which says that men + Shall not treat brutes and beasts with cruelty, + The name of "_Cock_" is absent; therefore they + Claim full exemption for their brutish deeds, + And we, vicegerents of our gentle Queen, + With spectacle on nose, must well explore + This vital point in _Cockieleerie-law_. + + The illumined page of history reveals + Cock-fighting as an ancient royal sport. + The Early Greeks and Romans in their day + Found pastime sweet in setting cock on cock; + The sage Themistocles took keen delight + In battling fowls; while glorious Caesar, too, + Loved much to back his bird; and, furthermore, + Marc Antony's gamecocks did always lose + When pitted against Caesar's fiercer breed. + King Henry VIII., of sainted memory! + At Whitehall had a special cock-pit built, + Wherein his royal birds made lively sport + For gentle dames and all his merry knights. + The most accomplished scholar of his day, + Squire Roger Ascham, tutor to Queen Bess, + Much as he loved his books, loved cocks the more, + And loved them most when victors in the fight. + And last of all, that great and noble Duke, + The conqueror of Blenheim, in game birds + Found something that reminded him of self; + And thus we see the fighting instinct strong + In cocks, and other nobles of past time. + + "Game cocks, we find, from earliest Cockereldom, + Delight in war, as dogs to bark and bite, + And raining blows upon each other's ribs + Do best fulfil their part of nature's plan, + Which built them slim and bade them love the fray; + And while we hope no preference here to show,-- + 'Tis open question, whether rearing fowls + To wring their necks, or match them in the pit, + Does more exalt the brute or sink the man. + + "But here, the cocks were armed with spurs of steel, + And 'tis a subtle matter, whether they + With iron shod, or spurred with native horn, + Do deal the deadliest blows in angry fray; + And, while we have our own opinion strong! + 'Tis not within our province to pronounce. + + "If it be wrong with steel to prick a fowl, + What of the spurs with which hard riders goad + The bleeding sides of horses in the race, + Or in the steeplechase, or country hunt? + And what of hares in coursing run to death? + Of quivering foxes torn by yelling hounds? + Of wheeling pigeons slaughtered for a prize? + We make no mention of the common use, + Of otter hunting, grouse and pheasant drives. + And of the sport termed _noble_, where the stag + Is forced upon the guns that lay him low. + No doubt, two blacks can never make one white, + Nor multiplying blacks turn black to grey; + But if to brutalise mankind be thought amiss, + Then there are other ways, than fighting cocks. + + "Still that's beside our purpose, which is this-- + To scan the statute, microscope in hand, + And note if in its sweep humane, we see + A roosting place for fighting chanticleer. + And there we find, or rather fail to find, + The name of "Cock" among the saving list + Of nineteen beasts protected by the law, + Though thus the list concludes, "_and other kinds + Of animals domestic_," or like words. + Are we to find Game Cocks, domestic fowls? + Are we to hold that birds, are animals? + Our view is quite the contrary, or else + There's not a beast, bird, fish, or insect but + The term "domestic" would to them apply, + And make it penal e'en to slay a louse. + + "And while, in other parts of this same Act, + We find "Cock" followed by the general phrase, + "_Or other kind of animal_," we hold + It bears not on the matter now in hand, + But only serves to show that Parliament, + When brooding, clucking, hen-like, o'er this Act, + Had Cocks well in their eye, and plainly did, + Of purpose full, omit them from the list; + And while bear-fights, bull-fights, dog-fights, and all + Vile sports and brutish cruelty to beasts, + The spirit and the letter of the law + Do quite forbid, _unanimous we hold + Cock-fighting is a lawful use of Cocks, + And finding so we liberate these men_. + + "It will be said, this Statute has been read + Reversely in our sister England, where + It is the Charter of proud Chanticleer; + But what of that? It alters not our mind! + But only shews, that they, of feebler clay, + Stick not at trifles, so the end be good, + And let the heart o'erbeat the legal mind; + While we, of sterner stuff, fail not to find + Motes in the sunshine of their simple wits, + And gnats to strain out of their cups of wine; + For in the nice accomplishment and use + Of splitting hairs, and weighing feathers small, + Of riddling wisdom from a peck of words, + We are more skilled, more subtle, more profound + Than our legal brethren of the South." + Whereat five horse-hair wigs again bowed down + In low obeisance to the mighty sage, + And straight the Court was cleared of cocks and men. + + + + +Fatal Links. + +BY ERNEST H. RANN. + + +A consideration of the detection of crime brings forcibly to the mind the +fact that officers of law have frequently to depend for success on the +accidental discovery of the most trifling items and incidents. Conversely +the criminal section of the community who prey on the weakness or folly of +their neighbours have to fear not only a knowledge of their principal +movements, but the discovery of the connecting link which shall complete +the chain of evidence against them. The deepest laid plot, the most +cunning scheme, contains a flaw which may be fatal to their operations, to +their liberty, and even their life, a flaw which no amount of previous +examination may detect, a weakness which can rarely be adequately guarded +against. Justice and the vindication of the law, therefore, depend largely +on a proper regard being paid to minor occurrences, which at first sight +would seem to have no bearing whatever on the particular case under +consideration. The history of crime contains numberless instances where +the criminal has been brought to justice through one or other of these +causes--the presence of particular hairs or threads on his clothing or on +the weapon used, the direction of certain cuts on the body of his victim, +the possession of trifling articles. At other times dreams have played no +inconsiderable part in the vindication of the law, which has also been +aided by supernatural visitants, or by the self-consciousness of the +criminal. + +It would be impossible in a short article like the present to offer a full +list of cases of this description, but a few typical instances may be +taken with the object of showing how crimes, long hidden, have been +discovered in the most remarkable manner. Probably the best example +occurred at Augsburg, in 1821. A woman named Maria Anna Holzmann lived in +a house in the town belonging to one Sticht. Her means only permitted her +to occupy a few of the rooms, and the remaining parts of the premises were +let to lodgers, among whom were George Rauschmaier and Joseph Steiner. On +Good Friday, April 20th, Holzmann disappeared. She had not given notice +of her intended departure, and nothing was known of it until some days +later when Rauschmaier and Steiner also left the premises, saying that +their landlady had previously quitted the house, leaving them in +possession of her keys. This information, however, was not given to the +police until May 17th. In the meantime Holzmann's relatives had become +apprehensive of her safety, and being reluctantly forced to the conclusion +that foul play had befallen her, they decided to take an inventory of her +property, as it was known that, although in humble circumstances, the +woman had managed by care and economy to amass considerable wealth. It was +found, however, that the greater part of her money and other valuables +were missing. + +In spite of active enquiries no further action of importance in the matter +was possible until the following January, when Theresa Belter, a +washerwoman who also lived in the house, announced that she had found a +thigh of a human body hidden in the loft. Further investigations revealed +a leg and the other thigh in a heap of rubbish in a corner of the room, +and between the chimney and the roof, a trunk without head or limbs was +discovered. An old gown and a petticoat, identified as portions of the +dress of Holzmann, were also brought to light, while search in +Rauschmaier's room disclosed other parts of a woman's body. The head was +missing, but when news of the unmistakeable crime was noised abroad, a +neighbouring manufacturer stated that during the preceding year he had +found a skull, still bearing portions of flesh and hair, in his factory +weir, but had not considered the "find" worthy of preservation. + +There could be no doubt that Maria Anna Holzmann had been murdered, and +the whole machinery of the law was put in motion to bring the criminals to +justice. Suspicion fastened itself strongly upon the two men, Rauschmaier +and Steiner, but actual evidence against them, or indeed against anyone, +was of the scantiest description until the separate pieces of the woman's +body were placed together. While the left arm was being examined, a brass +ring fell out of the bend of the elbow, whence it had evidently slipped +from the finger of the murderer. Whose was the ring? then became the all +important question. Rauschmaier was arrested and confessed that he had +stolen and pawned several articles of Holzmann's property, but he sternly +denied having committed the murder. The property, including a pair of +ear-rings, had been recovered from the pawnbroker's, and these, with the +brass ring, were laid before the accused. He had not wit enough to discern +the trap laid for him, and immediately on seeing the ornaments, he +exclaimed "The ear-rings and the gold and brass rings are mine. The brass +ring I always wore until within four or five weeks after Easter, since +when I have worn gold ones. The brass ring fits the little finger of my +left hand; it slips on and off with ease." This foolish statement, and the +place of the discovery of the ring, proved conclusively that Rauschmaier +was the murderer of the unfortunate Holzmann. Subsequently he made full +confession of the crime, stating that the brass ring must have slipped off +while he was cutting up the body. He paid the penalty of his sins with +death. + +The "Greenacre" case, which occurred in 1836, was similar to the foregoing +in many of its details. In that year, portions of the mutilated trunk of +an old woman named Brown were found in a house in Edgeware Road, wrapped +in old rags and sacking. Subsequently the head was discovered in Regent's +Canal, and the limbs in a drain in the neighbourhood of Camberwell. +Comparison between the various portions left no doubt as to the identity +of the deceased, and James Greenacre, whom Brown intended to marry, and to +whose house she had gone with all her property, was accused of the murder. +A woman named Gale with whom he lived was also charged with complicity in +the deed. Once more suspicion, however strong, was insufficient to bring +the crime right home to the accused, but the discovery, among Greenacre's +property, of some rags corresponding with the pieces covering the +mutilated remains, together with a few articles belonging to Brown, turned +suspicion into actual proof. Greenacre was condemned to death, and his +companion sentenced to transportation for life. + +The murder of William Begbie, at Edinburgh, is a remarkable case of the +manner in which the author of a crime may remain long hidden, and only +then be discovered by accident. Begbie was a bank porter, and on November +30th, 1806, he was employed to carry a parcel of notes, worth about +L4,000, to one of the bank's customers. On his way he had to pass through +a narrow, dark, and tortuous entry, and there he was brutally murdered and +the notes were stolen. Although a knife, of a particular pattern, was +left in the body, the murderer remained at large, and no clue to the +terrible crime could be unearthed. Nine months later the bundle of notes, +untouched, was found hidden in a wall, but long years passed before the +mystery was completely solved. In 1822 a Bow Street runner named Denovan, +while visiting Leith, chanced to fall into conversation with a sailor +lately returned from captivity among the French. Speaking of old times the +mariner accidentally mentioned that coming ashore one morning he had +noticed a man like William Begbie, followed by a person dressed in black +and of respectable demeanour. He lost sight of them for a few moments, but +later on he was surprised to see the man in black rush out of the narrow +entry with a bundle under his arm. On the next day he heard of the murder, +and feeling confidant that he could throw light on the crime, he informed +the mate of his vessel of what he had seen. Permission to go ashore was, +however, refused. The vessel sailed, was captured by the French, and the +sailor witness did not recover his liberty for fifteen years. Denovan set +to work with this important clue, and enquiries proved that the man in +black was no other than a notorious criminal named Mackoul, who had lived +in Edinburgh in 1806. The law had claimed its own, however, previous to +the sailor's disclosures. In 1820 Mackoul had suffered death for robbery; +still, though he was beyond punishment for his old crime in Edinburgh, it +was satisfactory to know that the mystery of the bank porter's death had +at last been solved. + +Probably the most notorious case in English annals of murder discovered by +extraordinary means is that of the killing of Daniel Clarke by Eugene +Aram. The main facts of the case are so well known that it is scarcely +necessary to enter into them here. Aram, assisted by a man named Houseman, +it may be remembered, murdered Clarke for the sake of his wealth, and hid +the body in St Robert's cave, near Knaresborough. There it remained from +1745 till 1759, when it was accidentally discovered by a labourer. Close +examination led to the conclusion that the body, or rather the skeleton, +was that of a murdered man, and when the mysterious and almost forgotten +disappearance of Clarke was remembered, steps were taken to arrest his +quondam companions Aram and Houseman. The latter turned king's evidence, +and on his testimony Aram was executed, leaving a shady memory to be +invested with undeserved romance by a poet and a novelist of the following +century. + +Researches into modern criminal records also reveal a number of +interesting cases similar to those cited above. A few years ago a Pole +named Lipski was convicted in London of the murder of a woman. Strenuous +efforts were made to obtain a pardon, on the ground that he had been +wrongly convicted, but the solitary fact on which the Home Secretary +decided to allow the law to take its course was that the door of the room +had been locked in which the woman was found murdered, with Lipski himself +hiding under the bed. And in tracing the Muswell Hill murder to its +authors, the police were aided in their endeavours by the discovery of a +common lantern which had been left on the scene of the crime. It was +supposed to belong to a relative of one of the suspected men, and in order +to verify this important link in the chain of evidence, a youthful agent +of the detective force was employed to spin his top in front of the +supposed owner's house, engage him in conversation if possible, and obtain +evidence of the ownership of the lantern. The result was completely +satisfactory; the suspicions of the police were confirmed, and the +murderers brought to justice, mainly, it may be said, through the +lantern's silent testimony. + +Another case of murder, which occurred in 1806, was brought home in a +singular and complete manner. A Deptford gentleman, named Blight, was +killed by a pistol-shot, and Sir Astley Cooper, from an examination of the +victim's wounds and of the place of his murder, arrived at the opinion +that none other than a left-handed man could have committed the crime. +Acting on this conclusion the police arrested one Patch, who had been seen +in the locality. When Patch was asked to hold up his hand to plead the +indictment, he put up his left hand. The jury brought in a verdict of +guilty, and before execution the criminal made full confession of his +terrible deed. + +Dreams also have played no inconsiderable part in the discovery of crime. +We have not space in the present article to notice all trials where +dream-evidence has been offered to the court; a brief notice of those +cases in which it has had an important bearing must suffice. The most +notorious instance, of course, is that of Maria Martin, the victim of the +Red Barn tragedy. After her departure from home, in order, as was +supposed, to many William Corder, nothing, either by way of letters, or +otherwise, was heard of her, except brief mention in Corder's +communications. Nearly twelve months passed, when Mrs. Martin was startled +and horrified by dreaming, on three successive nights, that Maria had been +murdered and buried in the Red Barn. After much persuasion her husband and +son consented to search the place, and there, in the exact spot indicated +by Mrs. Martin as having been pointed out in her dreams, was found the +body of her missing daughter, buried under the flooring in a sack. + +Mention may also be made of the case of Ulick Maguire, an Irish farmer, +whose wife dreamed that her husband had been murdered by a disappointed +lover of hers, named O'Flanagan. A few days later an idiot boy, who lived +in the house, was heard shrieking in terror: "Shanus dhu more O'Flanagan +(big black James) has kilt Ulick, and buried him under the new ditch at +the back of the garden. I dhramed it last night, evry wurrd av it." The +singular coincidence of the lad's dream with her own excited Mrs. +Maguire's suspicions to the utmost, especially as her husband was away +from home at the time. She ordered a search at the particular spot +mentioned by the idiot boy, and there, to her horror, was found the body +of Ulick, with the skull cleft in twain. Immediate request was made for +"big black James." He had absconded and enlisted in the army, but on being +charged with the crime he admitted his guilt, and suffered the penalty of +death. + +In one instance, by far the most wonderful of its kind, the victim of a +murder has appeared in successive dreams, and played the part of detective +with admirable skill and effectiveness. A Grub Street victualler, named +Stockton, was murdered towards the close of the seventeenth century. Three +men were suspected of the crime, but neither of them could be discovered, +and the affair seemed likely to become one of the mysteries of crime, when +a Mrs. Greenwood dreamed that Stockton, who had been a neighbour during +life, had taken her to a house in Thomas Street, telling her that his +murderer was inside. On going to the house in person Mrs. Greenwood was +told that Maynard, one of the suspected men, had gone abroad. The +following night Stockton appeared and showed her the features of Maynard, +and gave her such particulars of the man's habits and resorts that he was +captured within a few hours. From Maynard the names of his partners in +guilt, Bevel and Marsh, were obtained, but again the authorities were at +fault, until Stockton indicated the house where Marsh visited, and the +yard (afterwards discovered to be the yard of Marshalsea Prison) in which +Bevel would be found. From a crowd of other prisoners Mrs. Greenwood +identified Bevel, and shortly afterwards, through her strange testimony, +Marsh also was arrested. Then, as an old chronicle of the case affirms, +Stockton appeared for the last time, and thanked her for her good offices. +We have given the story as it has come down through two centuries; a whole +body of clergymen attested its accuracy at the time, and present-day +enquirers would have great difficulty, we imagine, in conclusively proving +that the murder of Stockton was traced by other and less extraordinary +means. + +Closely allied to the evidence furnished by dreams, and indeed, as in the +foregoing case of Stockton, sometimes barely distinguishable from it, is +that offered by ghosts, actually seen by witnesses in a waking, but +hallucinatory, state. Such evidence would scarcely be admissable in +modern courts of law, but in past ages it was freely employed, and has +served to bring criminals to the gallows. It must be admitted that the +other testimony against the accused was strong, but in numerous instances +ghosts have been instrumental in putting the officials on to a clue or +track which they would most likely never have discovered by their own +unaided efforts. In his "History of Durham," Surtees mentions the case of +Anne Walker, who lived in 1630, and had become engaged in an intrigue with +a relative of the same name. The girl was placed for a time under the care +of a friend in a neighbouring village, but one night she was removed from +there by Walker and a man named Sharp. From that date no one saw her +alive. A fortnight afterwards, Graime, a fuller, was terrified by the +appearance in his mill of Anne Walker's ghost, "dishevelled, +blood-stained, and with five wounds in her head." She told him the whole +story of her murder; how Sharp had killed her with a collier's pick, and +then thrown her body down a shaft. Graime hesitated to use this strangely +acquired information. Apparently incensed at his delay, Anne Walker +repeatedly appeared, and in order to rid himself of these visitations, +the frightened fuller at length acquainted the authorities with his story. +Immediate enquiry confirmed his statements in every particular. Walker and +Sharp were arrested, charged with the murder of the girl, found guilty, +and executed, though to the last they maintained their innocence of the +crime. + +A case, somewhat similar, has occurred even in the present century, and in +matter-of-fact, new world Australia, where visions might be expected to be +few and far between. The friends of a well-to-do settler near Sydney were +surprised to hear from his steward that he had been suddenly called to +England on important legal business. Remembering the vast wealth of the +man, and the necessity for precautions in regard to it, they accepted the +statement, and also recognised the steward's control of the estate during +his master's absence. What was the astonishment, however, of one of these +friends, when on riding over the estate he saw the owner, whom he thought +to be in England, sitting on a neighbouring stile? The figure looked at +him silently and sorrowfully, then walked towards a pond and disappeared. +Drags were procured and the water searched, when the body of the absent +owner was brought to the surface. Confronted with the corpse the steward +confessed that he had murdered his master at the identical stile on which +the ghost had sat. + +Pierre le Loyer, a French writer on law and the supernatural, mentions in +his "Discours des Spectres," the case of a man who mysteriously vanished, +having, as was supposed, been murdered. A few weeks later the ghost of the +absentee appeared to his brother, took him to a lonely spot, and there +pointed out where he had been murdered and buried by his own wife and her +lover. Enraged at this domestic perfidy and wickedness the brother +denounced his sister-in-law, and on his testimony she was condemned to be +strangled and her body afterwards burned. + +About half a century ago a peculiar case of fraud was disclosed by +remarkable means during the hearing of a law-suit in Tuscany. The decision +of the court turned on the point whether a certain word had been erased +from a particular document of importance. Chemical processes were alleged +to have been employed, and acting on scientific knowledge one of the +lawyers proposed that the document should be heated, as thereby a slight +difference of shade or colouring between the paper and the letters +supposed to have been removed might become visible. Permission was given +to try the experiment, and on the application of heat the important word +in question immediately appeared, and the court gave a verdict in +accordance with this ingeniously devised testimony. + +Since that time the progress and development of science have enabled +criminal investigation to be conducted by methods which would otherwise be +impossible, and with almost unerring certainty and decision. The +microscope and the spectroscope have been employed in numerous cases of +murder and forgery where less subtle means of discovery would have proved +useless; chemical analysis has become an important agent of detection, +while photography has also rendered signal service in the cause of +justice. We may not have concerned ourselves with the numerous methods by +which bank-note forgeries are detected; hitherto our references have been +mainly to the more serious crime of murder, and with a few instances of +this character brought to light through modern science our list must +close. + +Although, generally speaking, the microscope cannot discern any difference +between the blood of man and that of other mammalia, yet the merest +examination suffices to show the difference between mammalian blood and +that of birds, reptiles, or fishes. In the one case the red blood +corpuscles are round, and without a nucleus; in the other they are oval +and nucleated. On this fact the evidence for a prisoner at Chelmsford +charged with murder was completely rebutted. Blood stains had been found +on his clothes, which, according to his counsel, had been caused by +chicken's blood. But the prosecution brought forward a microscopist, who +stated that the blood stains were mammalian, and on this testimony the +plea of the prisoner was rejected. In the following year, and at the same +assizes, the testimony against a man charged with murder was strengthened +by the microscopical discovery of cotton fibres on a certain weapon, which +he was said to have used, while the murderers of a man who had been kicked +to death were convicted on the evidence of two doctors, who found on the +boots of the accused a number of hairs corresponding with the hair on the +head of the victim. Evidence of this kind is becoming of extreme +importance. Hardly a serious crime is investigated without the application +of one or other of these scientific methods of detection, and with each +success the career of the criminal becomes increasingly difficult and +arduous, and his chances of success more remote. Of remarkable discoveries +of crime the microscope, the camera, and the spectroscope furnish the most +subtle instances, and it is quite possible that before long other methods +of investigation, founded on the most recent scientific achievements, will +also be brought into operation. The phonograph and the Roentgen rays are +only waiting their turn to serve in the cause of justice. + + + + +Post-Mortem Trials. + +BY GEORGE NEILSON. + + +It might be thought that a man's death made an end of him, and that his +mere body had no rights or duties except that of getting decently buried. +The middle age had other ideas. The dead still had status and duties. +Continental laws recognised acts of renunciation in which a widow laid the +keys on her husband's corpse, or tapped his grave with the point of a +halberd. The body of a murdered person, or, it might be his hand merely, +might be carried before the judge to demand vengeance.[18] By English +thirteenth century law[19] legal possession of real estate was thought to +remain in a man, not until he died, but until his body was borne forth to +burial. The dead might be a very potent witness, as shewn by the ordeal of +bier-right,[20] a practice founded on the belief that the murderer's +touch would cause the victim's wounds to bleed afresh. Thus variously +qualified to act as witness or prosecutor as occasion required, it is not +surprising to find the dead as defendant also. + +English history[21] remembers the strange scene enacted in the monastery +of Caen in 1087, when William the Conqueror lay dead there, and the +ceremonials of his interment were interrupted by a weird appeal. Ascelin, +the son of Arthur, loudly claimed as his, neither sold nor given, the land +on which the church stood, and, forbidding the burial, he appealed to the +dead to do him justice. More than one[22] old English poem turned its plot +round the ancient canon law, by which a burial might be delayed for debt. +The dead was arrestable: a law afterwards set aside, "for death dissolved +all things." But in more codes than one death did not dissolve liability +for the consequences of high treason. + +In Scotland,[23] in the year 1320, at the "black parliament" of Scone, +several Scotsmen were convicted of conspiracy against King Robert the +Bruce. Most of them were drawn, hanged, and beheaded. But a Scottish +historian of the time tells us that Roger of Mowbray, one of the accused, +having died before his trial, "his body was carried to the place, +convicted of conspiracy, and condemned to be drawn by horses, hung on the +gallows, and beheaded." It is to the credit of Bruce that he did not allow +the corporal part of the sentence to be carried out, although many entries +in the charter rolls[24] shew that the consequent escheats of the +traitor's lands served to reward the loyalty of others. His body convicted +of conspiracy! How came this singular procedure into Scottish practice? + +In England, towards the close of the fourteenth century, although escheats +were not less keenly looked after than in Scotland--and that sometimes in +cases[25] where men had died unconvicted,--the purpose of attainder +appears to have been effected without the expedient of calling the dead to +the bar. The dead, however, was convicted. In the case of Robert +Plesyngton,[26] for instance, in 1397, the judgment of Parliament bore an +express conviction of treason, "_noun-obstant la mort de dit Roberd_." In +1400, John, Earl of Salisbury, challenged for treason by Lord Morley, was +killed before the day appointed for the duel. The court not only adjudged +him a traitor,[27] but on grounds eked out by Roman law subjected his +sureties in costs to his accuser--said costs including the handsome fee of +100s. and twelve yards of scarlet cloth to the lawyer Adam of Usk.[28] + +In all features save perhaps that of the actual presence of the body in +the trial, warrant can be found for the Scottish practice in Roman law. +The offence of "majesty," or high treason, formed an exception to the +great humane general rule that responsibility for crime ended with the +criminal's breath. Under the Lex Julia[29] death was no defence to a +charge of "majesty;" proceedings could be raised to stamp the dead man's +name with the brand of treason; his kinsmen might if they chose deny and +defend; but if they failed to clear him his goods were confiscated and his +memory damned. There is in the annals of Rome at least one instance[30] of +a death-sentence of this sort pronounced after the accused was in his +grave. Nor was its scope confined absolutely to high treason. The Church +had a quiet way of appropriating tit-bits of barbaric policy for pious +uses. The Emperor Theodosius[31] said that the inquisition for heresy +ought to extend to death itself; and as in the crime of majesty, so in +cases of heresy, it should be lawful to accuse the memory of the dead. The +Popes endorsed the analogy,[32] for heretics had goods, which sometimes +were worth forfeiting. The spiritual authority however was of more moment. +The Church claimed the power to bind and loose even after death,[33] and a +Welsh twelfth century bishop did not stand alone when he carried it so far +as to scourge the body of a king who had died excommunicate.[34] On the +same principle dead heretics--dead before sentence of heresy--were +burnt.[35] + +It was by a close following up of Roman jurisprudence, with, peradventure, +some added light from the law and practice of the Church, that the French +devised their _proces au cadavre_,[36] by which the memory of a dead +traitor was attacked. Its special application was to lesemajesty described +as divine and human, the former an elastic term covering offences against +God and religion. Allied to this latter category, though not exactly of +it, was the mortal sin of suicide. Self-slaughter was so deeply abhorrent +to mediaeval thought as not only to be reckoned more culpable, but to call +for more shameful punishment, than almost any other crime. So coupling the +traitor and the self-slayer in the same detestation, the law assailed both +by the same strange post-mortem process, and (by methods of reasoning +which Voltaire was one of the first to ridicule) consigned their souls to +perdition, their memories to infamy, and their bodies to the gibbet.[37] +The treatment of the suicide was peculiar in its refinements of symbolic +shame. The body was, by the customary law (for example, of Beaumont[38]), +to be drawn to the gibbet as cruelly as possible, _pour monstrer +l'experience aux aultres_. The very door-step of the house in which he lay +was to be torn up, for the dead man was not worthy to pass over it. +Impalement, transfixture by a stake, though well enough known on the +continent as a punishment of the living, became there and in England +alike, the special doom of the suicide. Yet the _proces au cadavre_ had no +footing in English law, and although it was already in 1320 received in +Scotland, we shall find reason for thinking it not wholly welcome. + +After the trial in 1320 before alluded to, the records in Scotland are +silent for over two centuries, and it is not until 1540 that the process +is heard of again. In that year[39] the heirs of one Robert Leslie were +summoned to the court of parliament to hear his name and memory "delete +and extinct," for certain points and crimes of lesemajesty, and his lands +and goods forfeited to the king. Legal authorities,[40] obviously +forgetful of the fourteenth century instance, follow one another in the +mistake of regarding Leslie's as the first of its kind. The legality of +the procedure was called in question at the time. Indeed, so loud was the +murmur that it can still be heard in the act passed to put it to silence. +"It is murmurit," says the enactment, "that it is ane noveltie to rais +summondis and move sic ane actioun aganis ane persoun that is deide, +howbeit the commoun law directly providis the samin."[41] The three +estates of parliament therefore on the motion of the lord advocate, +declared unanimously "all in ane voce, but[42] variance or discrepance," +that the cause was just and conform to common law. In another case of the +following year[43] the charge and judgment were enrolled in the Acts of +Parliament. The widow and the heir of the late James Colville were +summoned "to see and hear that the said deceased James, whilst he lived +had committed the crime of lesemajesty." The deliverance of parliament as +tribunal was by its terms an actual sentence upon the dead--that the +deceased James "hes incurrit the panis of crime of lesemajeste" for which +causes the court decerned "the memoure of the said umquhile James to be +deleit," and his possessions confiscated to the crown. + +Parliament which had unanimously voted the procedure well based in law, +found that it was dangerous. It was necessary to restrict its scope. In +1542, it is on parliamentary record[44] that "the lordis thinkis the said +act [_i.e._, of 1540], ower generale and prejudiciale to all the barions +of this realme." This would never do:--an act prejudicial to the barons! +So it became statute law in 1542, that it should apply only to cases of +grave treason, public and notorious during the offender's life, and that +prosecution for the future must be raised within five years after the +traitor's death. It was a reasonable restraint, not always observed. + +During the reigns of Mary and James VI. a number of trials occurred in +which this singular process was resorted to, and in some, if not all, of +which the body of the dead appeared at the bar. Occasionally it was +embalmed for the purpose.[45] It had been a part of the border code, +prevalent on the marches of England and Scotland, that an accused should, +although dead, be brought to the place of judgment in person. In 1249, the +marchmen of both realms had declared the law in that sense. They said +that, in any plea touching life and limb, if the defendant died the body +of him should be carried to the march on the day and to the place fixed +between the parties, because--concludes this remarkable provision[46]--"no +man can excuse himself by death." And in the end of the sixteenth century +the borderers had not forgotten the tradition their forefathers had +inherited in the thirteenth, for in 1597, when Scotsmen and Englishmen +were in fulfilment of their treaty obligations presenting their promised +pledges, the custom was scrupulously observed on the English side. All +were there,--all, though all included one that was no more.[47] "Thoughe +one of the nomber were dead, yet was he brought and presented at this +place." They evidently believed on the borders, which Sir Robert Cary with +some reason called[48] an "uncristned cuntry," that a man could best prove +that he was dead by attendance in person. + +In trials for treason this principle was pushed in some instances to +strange extremes. Probably one underlying reason of this, at a date so +late, was to make sure that no formality should be lacking to make the +forfeiture effective. But the main reason one must believe lay in its +being a traditional observance. In the trial in 1600, of the Earl of +Gowrie and his brother for an alleged attempt on the king's life, the +privy council on the preamble[49] that it was necessary to have their +corpses kept and preserved unburied, issued an act to that effect, and the +treasurer's accounts contain an entry "for transporting of the corpis of +Gowrie and his brother." Their bodies were accordingly produced at the +trial, and the sentence which pronounced them guilty of treason and +lesemajesty during their lifetime, declared[50] their name, memory, and +dignity extinguished, and ordained that "the dead bodeis of the saidis +Treatouris," should be hanged, quartered, and gibbetted. Their "twa +hedis," a grim diarist[51] tells, were set upon the tolbooth, "thair to +stand quhill[52] the wind blaw thame away." + +The last case[53] in the annals, in which this revolting Scottish +"practick" was put into effect, occurred in 1609. Robert Logan, of +Restalrig, had been nearly three years in his grave when it was given out +that he had been a party to the alleged Gowrie conspiracy against King +James. A process[54] was at once taken in hand to proscribe his memory and +escheat his property. As death was no excuse, neither was burial; and the +ghastly form was gone through of exhuming the bones for presentation at +the trial. It was a case plainly within the exception provided for in the +act of 1542, for the man was not "notourly" a traitor, he had died in +repute of loyalty: but the Crown was eager for a conviction. Much +incredulity had been rife with regard to the Gowrie conspiracy. The +evidences now adduced were--on the surface at any rate, although, perhaps, +as many critics still think, on the surface only,--circumstantial and +strong. The prosecution was therefore keenly pressed, and the reluctance +of some of the judges overcome. A jocular jurist-commentator on these +post-mortem trials, has remarked[55] that the bones of a traitor could +neither plead defences, nor cross-question witnesses. But in the dawn of +the seventeenth century they could turn the sympathy of the court against +the charge, as it appears they did in Logan's case. The proofs, however, +looked overwhelming, and the forfeiture was carried without a dissenting +voice from the bench--from the bench, because it was, as all Scots +treason-trials then were, a trial by judges only, not by judge and jury. +Logan's memory was declared extinct and abolished, and his possessions +forfeited. The judgment, however, wreaked no vengeance on the exhumed +remains. Humanity was asserting itself even in the trial of the dead, and +that institution itself was doomed. Although in disuse ever after, it did +not disappear from the theory of law until 1708, when the act 7 Anne, +chapter 21, prescribing jury-trial for treason, assimilated the Scots law +on the subject to that of England, and thus brought to an unregretted end +one of the most gruesome of legal traditions. + + + + +Island Laws. + +BY CUMING WALTERS. + + +A very curious and interesting phase of self-government is that which is +supplied by the independent legal system established in various small +islands in the United Kingdom. It is amusing to notice these little +communities on rocky islets tenaciously preserving their ancient +privileges, and revelling in the knowledge that they have a code of their +own by no means in harmony with the statute law of the country of which +they are an insignificant part. The tribunals and the legal processes in +the Channel Islands, in the Scilly Islands, in the Isle of Man, and even +in some of the smaller islands round the English coast, differ entirely +from those established in the motherland; and any suggestion of change is +warmly resented. In many cases it has not, of course, been worth while to +insist on reform, inasmuch as the islands are inhabited only by a few +families, who may be left in peace to settle their own differences if any +occur. + +There are a great many scattered islets about the sinuous line of Irish +coast, very few of which are ever visited by strangers. The conditions of +life in these isolated places are seldom investigated, and yet we find +there are some remarkable survivals of old customs and relics of ancient +laws. The people are independent, because they feel they are totally +separated from the mainland, and possess neither the means nor the desire +to cross over to it. They are in many respects a race by themselves, and +their attachment to their little homes of rock is such that one of their +severest punishments for offenders is to transport them to Ireland. Such +an island is Raghlin, or Rathlin, six miles distant from the north-west of +Antrim, but might be six hundred miles, judging by the slight intercourse +the handful of inhabitants has with the larger world. Another such island +is Tory, ten miles from the Donegal coast, where up to a few years ago the +dwellers were unacquainted with any other law than that of the Brehon +code. A visitor in 1834 found them choosing their own judge, and yielding +ready obedience to mandates "issued from a throne of turf." In this case, +and in the case of the Cape Clear islanders, it was found that the threat +of banishment to the mainland was severe enough to prevent serious crime. +These feelings probably have been modified in more recent times, yet the +intensity of the attachment of islanders to their native rock is one of +the ineradicable characteristics which account for the sturdy independence +manifested in their laws and customs. Their little homes are miniature +worlds which they prefer to govern themselves in their own way. We may +take the Scillies as a favourable example, where the natives cling to the +system of civil government by twelve principal inhabitants forming a Court +presided over by a military officer. The Court is held every month, and it +has jurisdiction in civil suits and minor causes. The Sheriff for Cornwall +has, or, at all events, had, no jurisdiction in the islands, though +persons prosecuted for felonies (which are extremely rare) have to be +relegated to the Assizes at Launceston. + +The patriarchal system has always been much in evidence in the small +Scotch islands, which, for the most part, are the possessions of the +descendants of feudal chieftains. Dr. Johnson adverted to this fact on the +occasion of his famous journey in the North:--"Many of the smaller islands +have no legal officers within them. I once asked, if a crime should be +committed, by what authority the offender could be seized, and was told +that the laird would exert his right; a right which he must now usurp, but +which merely necessity must vindicate, and which is therefore yet +exercised in lower degrees by some of the proprietors when legal process +cannot be obtained." But after observing how the system operated, Dr. +Johnson freely admitted that when the lairds were men of knowledge and +virtue, the convenience of a domestic judicature was great. Owing to the +remoteness of some of the islands and the difficulty of gaining access to +others, it was scarcely possible to bring them under the common law, and +we find that in some instances the proprietors were allowed to act as +magistrates by the Lord-Lieutenant's commission. Some of the old lairds +had a very effective but unjudicial method of enforcing their laws. Lord +Seaforth, High Chief of Kintail, was anxious to abolish a very odious +custom of woman-servitude which prevailed in the island of Lewis. The men +were wont to use the women as cattle, compelling them to draw boats like +horses, and, among other things, to carry men across the deep and +dangerous fords on their backs. This practice greatly disgusted Lord +Seaforth, who found, however, that it was one particularly hard to check. +He arrived one day on horseback at a stream which a peasant was +contentedly crossing, mounted on a woman's shoulders. When the middle of +the stream was reached, the laird urged his horse forward, and came up +with the couple, when by vigorously laying his whip about the back of the +man, he compelled him to dismount, and wade as best he could to the +opposite bank. This practical indication of the laird's wishes aided +considerably in producing a change. + +The Scotch islanders are a law-abiding people, and patriarchal government +sufficed. It was recorded of the inhabitants of Skye that, during a period +of unusual distress and semi-starvation, not a single sheep was stolen. So +keen is the sense of propriety in that island that a whole family has been +known to slink away, unable to bear the disgrace brought upon them by an +individual delinquent. Orkney and Shetland once possessed all the +characteristics of a separate kingdom, the laws of no other countries +being imposed upon them. There was none to dispute the laird's right, and +legal administration was entirely in his hands, except for the period that +the islands were placed under episcopal rule. It is worth noting that the +most famous of the governing bishops, Robert Reid (_tempus_ 1540), also +filled the high office of President of the Court of Session at Edinburgh, +and he and his successors are said to have ruled with conspicuous mildness +and equity. + +We may now turn to one or two English islands before devoting attention to +the most important examples of all--those supplied by the Isle of Man and +the Channel Islands. The Isle of Wight is only regarded as "separate" from +Hampshire for one legal purpose, so far as I have been able to ascertain. +It is part of the "county of Southampton" for all purposes except the +land-tax payment: for this it has a separate liability. But the land-tax +divisions are the most irregular, and the least uniform of any legal +divisions in the country, and it is therefore not surprising that the Isle +of Wight should in this respect be subject to peculiar usage. Purbeck is +one of those "isles" in England which now depend more upon tradition for +their designation, than natural accordance with the geographical +definition. What is remarkable is that these "isles"--such as the Isle of +Purbeck, the Isle of Ely, the Isle of Glastonbury, and the Isle of +Meare--nearly all have certain well-established and recognised laws of +their own for the little communities which dwell within their borders. The +quarrymen of Purbeck consider themselves a race apart, and their guild is +one of the closest and strictest character. Their homage is paid +exclusively to the lord of the manor, and the "Marblers" claim to have +received a special charter from King Edward. On Shrove Tuesday they elect +their officers, and celebrate the occasion by kicking a football round the +boundaries. One ancient custom observed on these occasions is to carry a +pound of pepper to the lord of the manor, as an acknowledgement to him in +respect to a "right of way." Until comparatively recent times the +government of the island was patriarchal in character. The Isle of +Glastonbury had its "House of Twelve Hides" for the trial of petty cases +in the locality, and tradition reports that unusually large dungeons were +prepared for the immuring of those who offended in the renowned Avalonian +isle. + +The Isle of Man, when subject to the Kings of Norway, was a subordinate +feudatory kingdom. It afterwards came under the dominion of the English +Kings, John and Henry III., but passed afterwards to the Scotch. Henry IV. +eventually claimed the little isle, and disposed of it to the Earl of +Northumberland, but upon this famous nobleman's attainder it went to Sir +John de Stanley. Its government seemed destined to be unsettled, however, +and though the title of king was renounced by the possessors of the land, +they maintained supreme and sovereign authority as to legal process. In +the Isle of Man no English writ could be served, and as a result it became +infested with smugglers and outlaws. This was unsatisfactory, and, in +1765, the interest of the proprietor was purchased, in order that the +island should be subject to the regulations of the British excise and +customs. + +According to Blackstone, than whom there could be no greater authority, +the Isle of Man is "a distinct territory from England, and is not governed +by our laws; neither doth an Act of Parliament extend to it unless it be +particularly named therein." It is consequently a convenient refuge for +debtors and outlaws, while its own roundabout and antiquated methods of +procedure have been found to favour the criminal rather than to aid +prosecutors and complainants. Perhaps this was never more vividly +illustrated than in the recent case of the murderer Cooper, who profited +by the cumbrous and lenient processes of Manx law to the extent of getting +an atrocious crime reduced to manslaughter. The laws have often been +amended. Prior to 1417 they were "locked up in the breasts of the +Deemsters," but Sir John Stanley found that so much injustice was being +done under the pretence of law, that he ordered a promulgation to be made. +But "breast laws" continued to be administered for another two centuries, +until Lord Strange, in 1636, commanded that the Deemsters should "set down +in writing, and certify what these breast laws are." In 1777, and also in +1813, the laws of the island were again amended, and every criminal was +allowed three separate and distinct trials before different bodies. First +the High Bailiff hears his case, then the Deemster and six jurymen, and, +thirdly, if he has been committed for trial, he is brought before the +Governor and the Deemsters. By the time the case gets to the final court +it has usually been "whittled down" to the smallest possible proportions, +and doubts have often been raised whether justice is not marred by +misplaced and unwarranted lenity. Another strange practice is that the +Manx advocates combine the parts of barrister and attorney. The law is +hard upon debtors, who can be lodged as prisoners in Castle Rushen, if it +is suspected that they are about to leave the island; but there are no +County Courts. On the other hand, there are Courts of Law of almost +bewildering variety--the Chancery Court, the Admiralty, the General Gaol +Delivery, the Exchequer, the Ecclesiastical, the Common Law, the two +Deemsters' Courts for the north and south of the island, the Seneschal's +Court, the Consistorial, the Licensing, and the High Bailiff's. Each +sheading, or subdivision, has its own coroner or sheriff, who can appoint +a "lockman" as his deputy; and each parish (there are seventeen) has its +own captain and a "sumner," whose duty in old times was to keep order in +church and "beat all the doggs." Manx law had, and perhaps to some extent +still has, a similar reputation either for allowing criminals in the +island to escape easily, or for permitting English criminals to remain +unpunished; hence the old ribald verse which represents the Devil +singing-- + + "That little spot I cannot spare, + For all my choicest friends are there." + +The Deemster's oath is a curiosity in itself:--"I do swear that I will +execute the laws of the isle justly betwixt party and party as +indifferently as the herring's backbone doth lie in the midst of the +fish." Formerly the elective House of Keys possessed judicial as well as +legislative functions, but this power was taken from it by the Act of +1866. Laws are initiated in the Council and the Tynwald Court, which +promulgates them, consists of the members of the Council, and the House of +Keys, who unite for the occasion. Tynwald Day as described by Mr. Hall +Caine is an interesting, historic, but not an impressive ceremony. A +thousand years ago the Norsemen established a form of government on the +island, and every fifth of July the Manxman has his open-air Parliament +for the promulgation of laws. But it is a gala day rather than a day of +business. "Reluctantly I admit," writes Mr. Hall Caine, "that the +proceedings were, in themselves, long, tiresome, ineffectual, formless, +unimpressive, and unpicturesque. The senior Deemster, the amiable and +venerable Sir Wm. Drinkwater, read the titles of the new laws in English. +Then the coroner of the premier sheading, Glenfaba, recited the same +titles in Manx. Hardly anybody heard them; hardly anybody listened." + +The Channel Islands were part of the Duchy of Normandy, and their laws are +mostly the ducal customs as set forth in an ancient book known as "Le +Grand Coustumier." Acts of the English Parliament do not apply to these +Islands unless specifically mentioned, and all causes are determined by +their own courts and officers. In Mr. Ansted's standard work on the +Channel Islands (revised and edited by E. Toulmin Nicolle, 1893), a long +chapter is devoted to the whole subject, and it is so complete and well +expressed that I venture without much alteration of phraseology to +summarise its leading points. Jersey and Guernsey have diverged greatly +from each other in their legal customs, and it is also curious to find +that each of the smaller islands possesses its own particular +constitutions and courts. The rights and customs of the "States," which +are an outcome of the mediaeval Royal Court, have constantly undergone +modification and have been remodelled, but they retain many of the ancient +characteristics. The Bailiff (_Bailli_), or chief magistrate, is the first +civil officer in each island, and usually retains his office for life. He +presides at the Royal Court, takes the opinions of the elected Jurats, and +when their voices are equal has a casting vote both in civil and criminal +cases. The Bailiff is not required either in Jersey or Guernsey to have +had a legal education. He is appointed by the Crown, but has usually held +some position at the island bar. Formerly the advocates practising in the +court of Jersey were nominated by the Bailiff, and were limited to six in +number. In 1860, however, the bar was thrown open to every British subject +who had been ten years resident in the island, and who was qualified by +reason of being a member of the English bar, having taken a law degree at +a French University, and having passed an examination in the island. In +Guernsey the advocates are also notaries, and frequently hold agencies. +The judicial and legislative powers in Jersey are to some extent separate, +but in Guernsey they are intimately associated--a fact which accounts for +much of the difference in custom in the two islands. + +The ancient Norman law contained in "Le Grand Coustumier" dates back to +the thirteenth century, was badly revised in the time of Queen Elizabeth, +and became the Code. Trial by jury was established in 1786, and the laws +on the subject have undergone considerable change. There is a committing +magistrate, and the trial takes place at the Criminal Assizes of which +there are six in the year. The jury numbers twenty-four; if twenty agree, +the verdict is taken; if less than twenty the prisoner is set free. Minor +offences are referred to a court of Correctional Police presided over by a +magistrate who is independent of the Royal Court. The same magistrate +presides over the court for the recovery of small debts, and there is no +appeal from his decision. Then there are subsidiary courts for various +police purposes, while the Court of Heritage entertains suits regarding +real estate. The arbitrary operation of these Courts may have very evil +results, especially for strangers who are unlearned in the peculiarities +of Jersey law. I find a striking example of this in a magazine of June +15th, 1861, in which a hard experience is detailed with comments which +appear to be fully justified by the circumstances. The writer says:-- + +"Before leaving England I had had a serious quarrel with a former friend +and medical attendant, and no long time elapsed after our arrival in the +island, before this gentleman sent me in a bill of monstrous +proportions--a true 'compte d'apothecaire' as the French express it. At +that time I was quite ignorant of the singular constitution of Jersey +law, and how it placed me in the power of any man who chose to sue me +whether I owed him money or not. I wrote to the doctor, refusing to pay +the full amount of his claim, and referring him to a solicitor in London. +He was, however, better acquainted with the Jersey law than myself, as the +result will show. Here, before proceeding with my story, I will enter into +some explanation of the law of debtor and creditor as it exists in Jersey. +This law enables the creditor to enforce his demands summarily, depriving +the party sued of his liberty, and leaving him in gaol till the costs of +his imprisonment have swelled the amount to be paid: and further, +supposing the defendant ultimately gains his suit, and proves his +non-liability, no damages for false imprisonment are obtainable. The law +leaves him no remedy, for the plaintiff makes no affidavit; and a simple +letter from England, requesting a Jersey advocate to enforce payment of a +claim, is enough to cast the defendant at once into prison, prior to any +judicial investigation into the merits of his case. + +"Thus, in Jersey, every man (unless he be a landed proprietor) is at the +mercy of every other man, both in the island and out of it. In short, one +man can arrest another simply by drawing up an imaginary account on a +common bit of paper, and handing it to the nearest lawyer, who will send +his clerk with the sheriff's man and imprison the unfortunate victim in +default of immediate payment. What is worse still, an arrest can be +carried into effect, by means of a simple letter sent through the post. +The exception in favour of land-owners of course includes the owners of +house property, an exception which mostly benefits Jersey-men, as few but +natives possess property in the island. It is only a proprietor who must +be sued _before_ he can be imprisoned. If the Jersey laws confined the +persons merely of strangers sued by the inhabitants of the island, in the +arbitrary manner described, the justice of such a practice might still be +defended on the plea of preventing them from leaving the island; but no +excuse can be found when the Jersey law is made an instrument in the hands +of strangers, living out of the jurisdiction of the island, and when it is +used to enforce payment of debts incurred in another place, and in which +no inhabitant of the island is interested, and when (as sometimes happens) +it is employed as a means of extortion. In the first case it can be urged +that, at least, it gives protection to the islander, which may be all +proper enough, though the system is liable to abuse. In the second, the +injustice and folly of the law is flagrant. By what right or reason ought +the Jersey code, without previous inquiry, to deprive one man of his +liberty at the demand of another, when both are strangers, and when the +dispute relates to matters wholly beyond its pale, and in reference to +which it has no means of obtaining information on oath? Yet such is the +case, and thus the Jersey law is converted into a mere tool of iniquity +and oppression. In speaking of this strange anomaly in Jersey law, I am +not referring to bills of exchange, or to securities of any sort, but +merely to simple debts, free from any acknowledgment or signature +whatever. In any other Court, such claims would not be entertained for a +moment. Surely the law is barbarous enough for the people of Jersey, +without its consequences being extended beyond its circumference. But, as +matters stand at present, the case stands thus: A and B fall out together. +Now B is a rogue. They go to law together, and B demands of A more than he +is entitled to. The courts in England are about to decide upon the merits +of the case. Meanwhile B learns that A is gone to Jersey for a short time +on business, perhaps connected with this very affair, such, for instance, +as looking up an important witness. What does B do? He immediately sends +off a letter enclosing his little account to a Jersey lawyer, instructing +him to demand payment or lock up A forthwith. The lawyer obeys, of course; +A storms--protests--all in vain. He is incarcerated, and is told he may +explain as much as he likes afterwards; but, in the meantime, must go to +prison, or _pay_. At last poor A, whose liberty is important to him, +wearied with the delays which it is the interest of the Jersey lawyers to +raise in his suit for judgment, pays the demand into court (au greffe) to +be adjudicated on--costs of law, costs of imprisonment and all. The latter +item includes 10s. every time the prison door is opened to let him pass on +his way to court--a journey he has too often to perform without much +approach to a _denoument_, and whither he is obliged to go under escort +like a criminal; and this process is repeated several times, without the +cause even being called on for hearing. Worst of all, when A comes out, he +has to decide upon the merits of the case. Meanwhile no remedy against B, +who, of course, being satisfied, withdraws his suit at home." + +Another seeming anomalous process may be cited. An appeal lies from some +of the small Courts to the full Court, or _Nombre Superieur_, but the +jurats who sit in the Court of First Instance are not debarred from +sitting in the Full Court when an appeal from their own judgment is being +heard! All the proceedings are carried on in the French language, which is +again extremely inconvenient for the English residents. The Bailiff +comments on the evidence and on the arguments of the pleaders, collects +the opinion of the jurats, and delivers judgment. In Guernsey the +decisions are given in private. "Pleadings in these courts are very +simple," says Mr. Ansted. "The plaintiff must serve on the defendant a +summons or declaration, setting forth the nature of his claim, and in some +cases the reasons on which it is grounded are added. If not sufficiently +definite the declaration is sent back by the Court for amendment. If the +defendant means to plead any objections by way of demurrer or special +plea, these are at once heard and disposed of. If the parties join issue +on the merits of the case, the Court hears the parties, or their counsel, +and decides. If the case be intricate the parties are sometimes sent +before the Greffier--in Guernsey before one of the jurats,--who reports, +condensing the matter in dispute, and presenting the points to the court +for decision." Trial by jury does not exist in Guernsey. The court at +Alderney is subordinate to that of Guernsey. The jurisdiction in matters +of correctional police is final where the offence can be punished by a +month's imprisonment or a fine not exceeding L5; otherwise it is referred +to Guernsey for trial. The Court of Sark, which has undergone many strange +vicissitudes since its institution in 1579, consists of the seneschal, or +judge, the prevot and the greffier, all appointed by the feudal lord, or +seigneur. The seneschal is an absolute authority in small cases, but his +right of punishment is limited to the narrow bounds of inflicting a fine +of about four shillings, and of sentencing to three days' imprisonment. +All cases demanding severer treatment are relegated to the Guernsey +Courts. Enough has been said to show that Mr. Ansted was justified in +declaring that though the islanders were unfitted by their habits and +education for any radical change in their peculiar institutions, yet "the +practice of the law courts both in Jersey and Guernsey has long been felt +to be in many cases cumbrous, not to say objectionable. Indeed, where so +much that is personal interferes in the administration of justice, and +where personal and family influence cannot but be felt, it is not +astonishing that reasonable complaints are sometimes heard." Three times +during the present century Royal Commissions have enquired into Jersey +law, but their recommendations have been systematically ignored. No +remedies have been carried out, and the islanders cling with extraordinary +pertinacity to customs which are notoriously abused and to priveleges +which are opposed to fair-dealing. The Channel Islands and the Isle of Man +are standing evidence of the danger incurred by such independence of legal +authority as they have hitherto been permitted to enjoy. + + + + +The Little Inns of Court. + + +The origin of the decadent institutions located in certain grim and +dreary-looking piles of building dotting the district of the Inns of Court +proper, and known as the little Inns of Court, is involved in considerable +obscurity. They appear to have originally held a similar position to the +great seats of legal education as the halls of Oxford and Cambridge do to +the Universities. But at the present time their relation to the Inns of +Court proper is not very clear, and the uses they serve, otherwise than as +residential chambers, are just as hard to discover. This state of +mistiness concerning them has existed so long that no one now seems to +know anything about them, and the evidence taken more than forty years ago +by a Royal Commission did so little to clear away the dust and cobwebs +hanging about them that they still remain, in the words of Lord Dundreary, +"things that no fellow can understand." + +Lyon's Inn has since that time been swept away to make room for the new +Courts of Law, without any person evincing the smallest interest in its +fate. Concerning this institution all that could be learned by the Royal +Commission was contained in the evidence of Timothy Tyrrell, who +"believed" that it consisted of members or "ancients," he could not say +which; he believed the terms were synonymous. There were then only himself +and one other, and within his recollection there had never been more than +five, and they had nothing to do beyond receiving the rents of the +chambers. There were no students, and the only payment made on account of +legal instruction was a sum of L7 13s. 4d. paid to the society of the +Inner Temple for a reader; but there had been no reader since 1832. He had +heard his father say that the reader "burlesqued the things so greatly" +that the ancients were disgusted, and would not have another. There was a +hall, but it was used only by a debating society; and there was a kitchen +attached to it, but he had never heard of a library. + +New Inn appears to have been somewhat more alive than Lyon's, though it +does not seem to have done any more to advance the cause of legal +education. The property is held under the society of the Middle Temple, +by a lease of three hundred years from 1744, at a rent of four pounds a +year. Among the stipulations of the lease is one allowing the lessors to +hold lectures in the hall, but none had been held since 1846, in +consequence, it was believed, of the Middle Temple ceasing to send a +reader. The lectures never numbered more than five or six in a year; and +there is now no provision of any kind for legal education. Samuel Brown +Jackson, who represented the inn before the Royal Commission, said he knew +nothing concerning any ancient deeds or documents that would throw any +light on the original constitution and functions of the body. If any there +were, he "supposed" they were in the custody of the treasurer. The only +source of income was the rents of chambers, which then amounted to between +eighteen and nineteen hundred pounds a year; and the ancients have no +duties beyond the administration of the funds. + +Concerning the origin of Clement's Inn, Thomas Gregory, the steward of the +society, was unable to afford full information, but he had seen papers +dating back to 1677, when there was a conveyance by Lord Clare to one +Killett, followed by a Chancery suit between the latter and the principal +and ancients of the society, which resulted in a decree under which the +property so conveyed became vested in the inn. Some of the papers relating +to the inn had been lost by fire, and "some of them," said the witness, +"we can't read." The inn, he believed, was formerly a monastery, and took +its name from St. Clement. It had once been in connection with the Inner +Temple, but he could find no papers showing what were the relations +between the two societies, "except," he added, "that a reader comes once a +term, but that was dropped for twenty years--I think till about two or +three years ago, and then we applied to them ourselves, and they knew +nothing at all about it; the under-treasurer said he did not know anything +about the reader, and had forgotten all about it." It was the custom for +the Inner Temple to submit three names to the ancients; and, said the +witness, "we chose one; but then they said that the gentleman was out of +town, or away, and that there was no time to appoint another." But no +great loss seems to have resulted thereby to the cause of legal education, +for it appears that all a reader had ever done was to explain some recent +Act of Parliament to the ancients and commoners, there being no students. +The inn had no library and no chapel, but as a substitute for the latter +had three pews in the neighbouring church of St. Clement, and also a +vault, in which, said the witness, "the principals or ancients may be +buried if they wish it." + +Some remarkable evidence was given concerning Staples Inn, and the more +remarkable for being given by Edward Rowland Pickering, the author of a +book on the subject, which publication one of the Commissioners had before +him while the witness was under examination. "You state here," said the +Commissioner, "that in the reign of Henry V., or before, the society +probably became an Inn of Chancery, and that it is a society still +possessing the manuscripts of its orders and constitutions." "I am +afraid," replied the witness, "that the manuscript is lost. The principal +has a set of chambers which were burnt down, and his servant and two +children were burnt to death, seventy years ago; and I rather think that +these manuscripts might be lost." Where the learned historian of the inn +had obtained the materials for that work is a question which he does not +appear to have been in a position to answer; for when asked whether he +knew of any trace of a connection between the society and an Inn of Court, +he replied, "Certainly, I should say not. It is sixty years since I was +there, boy and all." A very strange answer considering the statement in +his book. During the sixty years he had been connected or acquainted with +the society, he had never heard of the existence of a reader, or of any +association of the inn with legal education or legal pursuits. The only +connection claimed for the inn by the principal, Andrew Snape Thorndike, +was that, when a serjeant was called from Gray's Inn, that society invited +the members of Staples Inn to breakfast. There is a singular provision +respecting the tenure of chambers in this inn by the ancients. "A person," +said this witness, "holds them for his own life, and though he may be +seventy years of age, if he can come into the hall, he may surrender them +to a very young man, and if that young man should live he may surrender +them again at the same age." If a surrender is not made, the chambers +revert to the society. + +Barnard's Inn is a very old one, and the property has been held on lease +from the dean and chapter of Lincoln for more than three hundred years. +The society consists of a principal, nine ancients, and five companions, +which latter are chosen by the ancients; but we fail to gather from the +evidence of Charles Edward Hunt, treasurer and secretary of the inn, by +what principles the ancients are guided in the selection. We learn, +however, that applications for admission by solicitors are not allowed. +Such a thing had occurred once, but it was as long ago as 1827, and "of +course," said the witness, "we refused him, and he applied to the court, +and after some difficulty he got a rule _nisi_ for a mandamus. It came on +to be tried before Lord Tenterden, and Lord Tenterden said it could not be +granted; that we were a voluntary association, and the court had no +jurisdiction." The applicant seems to have based his claim on the ground +that Barnard's was an Inn of Chancery, and that, as a solicitor, he had a +right to be admitted. The matter was scarcely worth contention, as the +privileges of the companions are confined to dining in hall and the chance +of being made an ancient, that favoured grade being entitled to "their +dinners and some little fees." The books of the society showed no trace of +there ever having been any students of law connected with the inn. "The +oldest thing I find," said the witness, "is that a reader came +occasionally from Gray's Inn to read; but what he read about, or who paid +him, there is no minute whatever." He did not know when a reader last came +from Gray's Inn; he thought it was about two hundred years ago. It only +remains to be told of Barnard's Inn that it has not even a library; there +had been a few books at one time, the witness told the Commission, but +they were sold as useless! + +Concerning the remaining little inns--Clifford's, Symond's, and +Furnival's--no evidence was taken. They appear to be merely residential +chambers, much the same as some of those concerning which we have +information in the report of the Royal Commission and the evidence given +before it, and the chambers are far from being used exclusively by members +of the legal profession. Nearly sixty years ago the present writer found a +retired army officer occupying chambers in Clifford's, and on a later +occasion made at Symond's Inn, the acquaintance of a curate who resided +there with his wife and a young family! Concerning Furnival's Inn, it was +incidentally stated by Michael Doyle, who represented Lincoln's Inn +before the Royal Commission, that the latter society received L576 a year +under a lease of the former property granted to the late Henry Peto for +ninety-nine years, L500 being for rent, and the remainder in lieu of land +tax. The witness was, however, unable to give any information as to the +manner in which, or the date when, the property was acquired by Lincoln's +Inn. + +The inquiry by the Royal Commission resulted in the recommendation of some +very important changes in the constitution of the little Inns of Court and +the administration of the several properties; but these, we learn, have +been modified so much in their adoption as to have been of very little +value. The societies have long outlived the purposes for which they were +instituted, though their principals and officials seem to attach +considerable importance to their continued existence. It is probable, +however, that their _raison d'etre_ being gone, they will all sooner or +later go the way of Lyon's Inn, and become things of the past. + + + + +Obiter. + +BY GEORGE NEILSON. + + +The claims of the legal profession to culture were cleverly belittled by +Burns, when he made the New Brig of Ayr wax sarcastic over the town +councillors of the burgh:-- + + "Men wha grew wise priggin owre hops an' raisins, + Or gathered lib'ral views in Bonds and Seisins." + +Bonds and seisins are certainly not the happiest intellectual feeding +ground. "I assure you," said John Riddell, a great peerage antiquary, +"that to spend one's time in seeking for a name or a date in a bit of +crabbed old writing does not improve the reasoning powers." Riddell was a +keen critic of Cosmo Innes, who subsequently had the happiness of passing +the comment upon Riddell's observation that "perhaps it is not in +_reasoning_ that Mr. Riddell excels." Yet the annals of the law shew many +splendid examples of the union of close textual study of manuscript, with +an enlarged outlook on first principles and with keen critical insight. +Perhaps Madox was a more permanently serviceable scholar than Selden. One +can see from Coke's margins, his infinite superiority to Bacon in exact +knowledge at first hand of older English law. But when all is said, we +could have done much better without Coke and Madox than without Bacon or +Selden. It is delightful to be able to appeal to Chaucer for perhaps the +most emphatic compliment to law, in respect to its capacity for +literature, that it has ever received. Amongst all the Canterbury +pilgrims, there was no weightier personage than the Man of Law:-- + + "Nowher so bisy a man as he ther nas, + And yet he semed bisier than he was. + In termes hadde he caas and domes alle + That from the tyme of King William were falle, + Therto he coude endyte and make a thing + Ther could no wight pinche at his wryting, + And every statut coude he pleyn by rote." + +Yet it was this learned and successful counsel, alone of the party, who +knew the poet's works through and through, and had the list of them at his +finger-ends. Good Master Chaucer for this touch we offer hearty thanks! +Was it in Herrick's mind when he penned his fine tribute to Selden? + + "I, who have favoured many, come to be + Graced, now at last, or glorified by thee." + + * * * * * + +Wits and poets have had many hard things to say in jest and in earnest +about the legal profession and its work. Herrick bracketed law and lawyers +with diseases and doctors, in a fashion hinting that the relation of cause +and effect existed between both pairs:-- + + "As many laws and lawyers do express, + Nought but a kingdom's ill-affectedness. + Even so those streets and houses do but show + Store of diseases where physicians flow." + + * * * * * + +It was an old story this linking of the practitioners of law and medicine +in one yoke of abuse. The reason given for both categories in early satire +is sufficiently curious. It was because they took fees! Walter Map +declared the Cistercian creed to be that no man could serve God without +mammon. Ancient satire equally objected to the service of man, either +legally or medically, under these conditions. "The Romaunt of the Rose" +has the traditional refrain of other strictures in verse, when it declares +that + + "Physiciens and advocates, + Gon right by the same yates, _yates, gates_ + They selle hir science for winning. _winning, gain_ + + * * * * * + + For they nil in no maner gree _no kind of good will_ + Do right nought for charitee." + +The same idea, precisely, finds voice in the poem attributed to Walter +Map, wherein the doctor and the lawyer come together under the lash, +because no hope can be based upon either of them unless there be money in +the case. "But if the marvellous man see coin, the very worst disease is +quite curable, the very falsest cause just, praiseworthy, pious, true, and +pleasing to God." Perhaps these ancient sarcasms were keener on the leech +than the lawyer. "The Romaunt of the Rose" goes so far as to say that if +the physicians had their way of it, + + "Everiche man shulde be seke, + And though they dye, they set not a leke + After: whan they the gold have take + Ful litel care for hem they make. + They wolde that fourty were seke at onis! + Ye, two hundred in flesh and bonis! + And yit two thousand as I gesse + For to encresen her richesse." + + * * * * * + +No doubt the men of medicine would have been much more vulnerable on +another line, for it was no satirist but a learned medical professor, +Arnauld de Villeneuve, who, in the beginning of the fourteenth century, +advised his students as follows:--"The seventh precaution," said he, "is +of a general application. Suppose that you cannot understand the case of +your patient, say to him with assurance that he hath an obstruction of the +liver." No legal professor surely was ever guilty of the indiscretion of +_saying_ such a thing as this! + + * * * * * + +The ineradicable public prejudice against legal charges as flagrantly +exorbitant is only a modified form of an older idea exemplified above that +lawyers should have no fees at all. And as to this day the plain man has +never fully reconciled himself to the doctrine that the lawyer is only an +agent, and not called upon to sit in the first instance in judgment on his +client, so in the past the professional defence of a criminal appeared a +very venal transaction. + + "Thow I have a man i-slawe, + And forfetyd the kynges lawe + I sal fyndyn a man of lawe + Wyl takyn myn peny and let me goo." + + * * * * * + +How reprehensible a thing to take fees was long reckoned admits of curious +illustration. "Before the end of the thirteenth century," says that +never-failing authority, Pollock and Maitland's "History of English Law," +"there already exists a legal profession, a class of men who make money +by representing litigants before the courts and by giving legal advice. +The evolution of this class has been slow, for it has been withstood by +certain ancient principles." Amongst these retarding influences lay the +half-religious scruple about the propriety of payment--men as usual +swallowing the camel first and straining at the gnat afterwards. Of course +the subject had to be illuminated by monkish tales and death-bed +repentances. There was, according to the Carlisle friar who penned the +"The Chronicle of Lanercost,"--writing under the year 1288,--a young clerk +in the diocese of Glasgow, whose mind "was given rather to the court of +the rich than to the cure of souls. He was called Adam Urri, and was +laically learned in the laic laws, disregarding the commands of God +against the Praecorialia [so in the printed text, but, query, +Praetorialia?] of Ulpian. He used the statutes of the Emperor in +litigating causes, for payment of money. But when he had grown old and +famous in this his wickedness, and was striving by his astuteness to +entangle the affairs of a poor little widow, the divine mercy laid hold on +him, assailing his body with sudden infirmity, and bringing his mind to +plead (_enarraret_) more for another life." Condemning utterly the +lawyer's court, he turned over a new leaf, predicted the day of his own +death, and died punctually conform to the prophecy, leaving an example +unctuously used by the friar to teach future generations "how wide was the +gulf betwixt the service of God and the vanity of this world." We shall +not be far wrong in regarding, as of more historic interest, the +indication of the immorality of fees, and the important reference to +Ulpian as an authority in the _forum causidicorum_ of thirteenth century +Scotland. + + * * * * * + +Amongst the amiable conceptions of the middle age was the notion that the +Evil One often manifested a particular zeal against sin. He was regarded +with a different eye from that with which we regard him, and he rewarded +faith with actual appearances such as only spiritualists can now-a-days +command. Some of them were not very engaging, however praiseworthy may +have been their object and occasion. Simeon of Durham, an eminently +respectable contemporary author, wrote of the death of King William Rufus +in the year 1100 that the popular voice considered the wandering flight of +Tyrell's arrow a token of the "virtue and vengeance of God." And he added +that about that time the Devil had frequently shewn himself in the woods +"and no wonder, because in those days law and justice were all but +silent." The logic of this _because_, not apparent on the surface, becomes +less obscure when it is remembered that in the mediaeval devil the +character of Arch-Enemy is so much subordinated to that of Arch-Avenger. + + * * * * * + +The direct relation of not only the Saints but of the Deity itself to +human affairs was a conception so clear to the mediaeval mind that it saw +nothing irreverent in a title deed being taken in the Supreme name, or in +marshalling "_Deus Omnipotens_" at the head of the list of witnesses to a +charter. This anthropomorphic practice gave occasion to one of the +sharpest of Walter Map's jokes against the Cistercians. Three abbots of +that order petitioning on behalf of one of their number and his abbey for +the restoration of certain lands by King Henry II. as having been +injuriously taken away from the claimant's abbey, represented to the King +in his court that for God's sake he ought to cause the lands to be +restored and they assured him and gave him God himself as their guarantor +(_fidejussorem_) that if he did, God would greatly increase his honour +upon earth. King Henry found it difficult to resist the appeal thus made +to him but called the Archdeacon Walter Map to advise. This he did +well-knowing that this counsellor did not love the Cistercians, and that +he might thus find a creditable way out of a tight corner. The Archdeacon +was equal to the occasion. "My lord," said he to the King, "they offer you +a guarantor; you should hear their guarantor speak for himself." "By the +eyes of God," replied Henry, "it is just and conform to reason that +guarantors themselves should be heard upon the matter of their guarantee." +Then rising with a gentle smile (not a grin, expressly says Giraldus +Cambrensis) the shrewd monarch retired leaving the disappointed abbots +covered with confusion. + + * * * * * + +Of the many ties between literature and law, one, not by any means the +least interesting on the list, is the quantity of legal citations, +phrases, metaphors and analogies which got swept into the wide nets of the +poets. Amongst such scraps there are few so successful and still fewer so +pathetic as one in which a metrical historian, drawing near the close, +both of his days and his chronicle, figured himself as summoned on short +_induciae_ at the instance of Old Age to appear at a court to answer +serious charges, where no help was for him save through grace and the +Virgin as his advocate. + + Elde me maistreis wyth hir brevis, _elde, age_ + Ilke day me sare aggrevis, _brevis, writ_ + Scho has me maid monitioune _ilke, each_ + To se for a conclusioune _quhilk, which_ + The quhilk behovis to be of det; _of det, of right_ + Quhat term of tyme of that be set + I can wyt it be na way, _wyt, know_ + Bot weill I wate on schort delay + At a court I mon appeire + Fell accusationis thare til here + Quhare na help thare is bot grace. _bot, without_ + The maikless Madyn mon purchace _maikless, matchless_ + That help; and to sauff my state _purchace, procure_ + I haiff maid hir my advocate. _sauff, save_ + +Androw of Wyntoun's verse it must be owned was verse on the plane of a +notary public, and oft the common form of legal writ supplied sorrily +enough the deficiencies of his imagination. But here for once the simple +dignity of the thought bore him up and carried him through. + + + + +Index. + + + Aberdeen, gipsies at, 175 + + Abjuring the realm, 15 + + Abjuration, 69 + + Abolishing right of Sanctuary, 16 + + Adultery, penalty of, 11 + + Africa, ordeal in, 24-25 + + Amphitheatre, sports of, 112 + + An eye for an eye, 137 + + Ancient tenures, 93-108 + + Andrews, William, Cock-Fighting, 196-200 + + Anglo-Saxon Church, 14 + + Aram, Eugene, 212 + + Ashford, Mary, 40-41 + + Asyla in Greece, 14 + + Axon, W. E. A., Sanctuaries, 13-22; + Laws relating to the Gipsies, 165-178 + + + Babylonia, law of, 3-4 + + Balance, ordeal of, 27 + + Barbarous Punishments, 132-148 + + Barnard's Inn, 263 + + Beetles, trial of, 157 + + Begbie, William, murder of, 210 + + Beverley, Sanctuary at, 19-20 + + Bible Law, 1-12 + + Bible, ordeal of the, 37 + + Bible, weighing against, 27 + + Bier, ordeal of, 36 + + Bird, Robert, Cockieleerie Law, 200-204 + + Biretta, 53 + + Black Book of Hereford, 101 + + Black Parliament, 225 + + Blood, laws written in, 135; + stains, 222 + + Boiling to death, 135 + + Book of Common Prayer, abolished, 194 + + Borough English, 104-106 + + Breaking straws, 48; + rods, 49 + + Buccleuch, Barons of, 107 + + Bull relating to English Sanctuaries, 15 + + Bull, trial of, 150 + + Burned alive, 134 + + Burgess, S., Bible Law, 1-12 + + + Canning, Elizabeth, 172-173 + + Canon Law, 187, 225 + + Castles, a centre of power, 74 + + Cattle stealing, 74 + + Channel Islands, Laws of the, 242-243, 248-257 + + Charges, prejudice against, 271 + + Charles I., Trial of, 182 + + Chaucer's compliment to the law, 268 + + Cheltenham, Manor of, 94 + + Chemical test, 220 + + Christians, early punishment of, 137 + + Church and ordeals, 29 + + Clarke, Sidney W., Barbarous Punishments, 132-144 + + Clement's Inn, 260 + + Cock-Fighting in Scotland, 196-204 + + Cockieleerie Law, 200-204 + + Cock, tried for laying an egg, 154 + + Commonwealth Law and Lawyers, 178-196 + + Continental Feudalism, 77-82 + + Conveyancing Symbols, 50-51 + + Copyhold, 49, 83 + + Corsnedd, ordeal of, 35 + + Commandments, breaking, 3 + + Cross, ordeal of the 33 + + Crown, 56 + + Coventry Acts, 142-143 + + Court Baron, 84 + + Customary Court, 84 + + Crucifixion, 136 + + + Dead bodies brought to place of judgment, 232 + + Debts, limitation of, 9 + + Declining knighthood, 63-64 + + Defilement, 8 + + Delivery of turf or twig, 50 + + Deposition of kings, 56 + + Devices of the Sixteenth Century Debtors, 161-164 + + Divine right of kings, 193 + + Dog carrying, 140 + + Dogs in recognition of tenure, 101 + + Dream evidence, 214-217 + + Dudley lands, 64 + + Durham Sanctuary, 17, 19 + + + Escheats, 226 + + Emma, Queen, tried by ordeal, 30 + + Englishry, law of, 70 + + Executing gipsies, 167, 170 + + + Failure to extripate gipsies from England, 170 + + Fatal Links, 205-223 + + Father, powers of, 9 + + Ferocity of forest laws, 119 + + Feudal lord, powers of the, 64 + + Feudal system, 58-62 + + Fining jurymen, 124 + + Fire ordeal, 28 + + Flagellation, 61 + + Flags, rendering for tenure, 101 + + Forests, great, 115-116 + + Forgery, punishments, 142 + + Fortune telling, 169 + + France, penal laws of, 140-141; + Trials of animals in, 149-154 + + Frankalmoign, 103 + + Free alms, 103-104 + + Fridstools, 17, 20 + + Frost, Thomas, Trial by jury in Old Times, 122-131; + Trials of animals, 149-160; + Little Inns of Court, 258-266 + + Furnival's Inn, 265 + + + Gavelkind, 106-107 + + Ghosts, 217-220 + + Gibbet, gipsy rescued from, 176 + + Gipsies, laws relating to the, 165-178 + + Glove, 92 + + Godiva story, 74 + + Grand Serjeantry, 100 + + Great Civil War, 179 + + Greenacre case, 209 + + + Hampden, John, 182 + + Hanged, drawn, and quartered, 133-134 + + Hasp and staple symbol, 52-53 + + Hat as a symbol, 53-54 + + Hawaii, ordeals in, 25 + + Henry VIII., laws against gipsies, 169 + + Hereford Fair, 101 + + Heresy, 228 + + Heriots, 91-92 + + Herrick on lawyers, 269 + + High treason, trial for, 122-124; + punishments for, 132-135 + + Hindoos, ordeals of the, 26-27 + + Holzmann, Maria Ann, murder of, 206-209 + + Homage, 53 + + Homicide, 11 + + Horse, trial of, 151 + + Hot iron, ordeal of, 27, 30, 31, 32 + + Howlett, England, the Manor and Manor Law, 83-94; + Ancient Tenures, 95-108 + + Hugh of Avalon, 120 + + + Ignorance, sin of, 7 + + Iniquities, legal, 145 + + Irish Island Laws, 238-239 + + Isle of Man, Laws of the, 243-247 + + Island Laws, 237-257 + + + Jews, extortions of, 73 + + Jocular tenure, 102 + + + King's power limited, 12 + + Knight, service of, 96 + + + Lanercost, the chronicle of, 272 + + Law under the Feudal System, 58-82 + + Law and Medicine abused, 269-270 + + Laws of the Forest, 109-121 + + Laws relating to the Gipsies, 165-178 + + Left-handed murder, 214 + + Letters of IV. Forms, 163 + + Lesemajesty, crimes of, 229-231 + + Lincoln's Inn, 266 + + Lipski, 213 + + Literature and Law, 275 + + Little Inns of Court, 258-266 + + Lords, power of, 58 + + Lord Chief Justice Popham, stolen by gipsies, 170 + + Loss of right hand, 138 + + Lyon's Inn, 259 + + + Macdonald, James C., Devices of the Sixteenth Century Debtors, 161-164 + + Magna Charta, 63, 98 + + Manchester, Sanctuary at, 15, 16, 17 + + Manor and Manor Law, 83-94 + + Manor, origin of, 88 + + Marriage in feudal times, 59 + + Marriage laws, altering, 195 + + Marrying to atone for violence, 64 + + Martin, Maria, 214 + + Middle Ages, ordeals of, 29 + + Military service, 59 + + Military punishments, 136 + + Money raised by marriage, 72 + + Mortal Combat, 37-41 + + Mosaic law, 3 + + Mutilation, a favourite mode of punishment, 141-144 + + Muswell Hill murder, 213 + + + Neilson, George, on Symbols, 43-57; + Post Mortem Trials, 224-236; + Obiter, 267-276 + + New Inn, 259 + + New way of paying old debts, 163 + + Nimrod, 111 + + Norman forest laws, 117 + + + Oath, refusal to bear witness of, 8; + of fealty, 60 + + On Symbols, 43-57 + + Oppression of gipsies under Queen Elizabeth, 171 + + Ordeals, 24-42 + + + Palace regulations, 138-140 + + Parricide, punishment for, 137 + + Paul's Cross, preaching at, 194 + + Peacock, Edward, Laws of the Forest, 109-121; + Commonwealth Law and Lawyers, 179-196 + + Peine forte et dure, 145-148 + + Penal Code, English, 145 + + Penn and Mead, trial of, 125 + + Persecution of gipsies, 171 + + Plantations, gipsies sent to, 178 + + Plays acted by gipsies, 176 + + Pigs, trial of, 150, 151, 152, 153, 157 + + Pillory, 142, 144 + + Poison, 135, 138 + + Poison, ordeal, 28 + + Poisoning, punishment for, 135 + + Poor laws, 9 + + Post-Mortem Trials, 224-236 + + Prejudice against gipsies, 172 + + Protecting the church in war time, 102-103 + + Proverb, oldest, 111 + + Punishments under Saxons, 61 + + + Quakers, trial of, 125-131 + + + Rann, Ernest H., trials in superstitious ages, 22-42; + Fatal Links, 205-223 + + Reasoning power, 267 + + Rebel Heads on City gates, 134 + + Refuge, cities of, 14 + + Regicides, 134 + + Robbing travellers in feudal times, 73-74 + + Robert de Belesone, cruel acts of, 65 + + Robert the Bruce, Conspiracy, 225 + + Rod in Scotland, 49 + + Roman Empire in its glory, 114 + + Rose Tenures, 102 + + Ruskin, Jno., on Coeur de Lion, 72 + + + Sacrifice, laws relating to, 5-7 + + Sacrilege, 8 + + Sanctuaries, 13-22 + + Scilly Islands, laws of the, 239 + + Scoggan, Queen's jester, 163-164 + + Scotch Islands, laws of the, 239-242 + + Scotland, sanctuaries of, 21-22 + + Scott, John, of Edinburgh, 161-163 + + Scutage, 98 + + Self-slaughter, 229 + + Ship-money tax, 181 + + Shaving the head for theft, 69 + + Siamese, ordeals of the, 26 + + Silver spear, 55 + + Slavery, discharge from, 45 + + Slaves, ill treatment of, 8, 10; + under the Saxons, 60 + + Slaying gipsies, 175-176 + + Sods offered at the altar, 48 + + Spindle on the altar, 51 + + Staff and baton, 50 + + Staples Inn, 262 + + Star Chamber, 124-125 + + Strangulation, punishment by, 136 + + Straws, breaking, 48 + + Stocks, 67 + + Switzerland, trials of animals in, 154 + + Symond's Inn, 265 + + + Thornton, Abraham, 40-41 + + Towns amerced, 70 + + Traitors, exempted from the Sanctuary, 15 + + Treason, trials for, 233 + + Trial by Jury in old times, 122-131 + + Trials of Animals, 149-160 + + Trials in superstitious ages, 22-42 + + Tynwald Day, 247 + + + Usury, law of, 9 + + + Villeinage, 86 + + Violating the sanctuary, 14, 21 + + + Wager of Battel, 37, 41 + + Walters, Cuming, Law under the Feudal system, 58-82; + Island Laws, 237-257 + + Wand, 49 + + Welcoming gipsies to England, 168 + + Westminster, sanctuary of, 20 + + Whipping, 61; + Post, 67 + + William I., Forest Laws of, 118; + Burial of, 225 + + William the Red, Forest laws of, 119 + + Witchcraft, 144-45 + + Wollen Industry, protection of, 144 + + Women, free bench of, 93 + + Working of the sanctuary system, 16, 17 + + + + +FOOTNOTES: + +[1] This and other documents have been collected by Mr. T. J. de' +Massinghi, whose monagraph on "Sanctuaries" (Stafford, 1888) is the chief +source of information on the subject. + +[2] See Andrews' "Old Church Lore," 1891, and the authorities there cited. + +[3] The material facts in this paper up to this point are derived from +_Thevenin's Textes relatifs aux Institutions privees_ and _Du Cange art. +investitura_. + +[4] Williams' "Real Property Law." + +[5] Williams' "Real Property Law." + +[6] Southey's Common Place Book, 4th Series, 1851, p. 175. + +[7] Chapter x., verses 8 and 9. + +[8] Ecl. II., line 62. + +[9] Constitutional History of England, I. Ed., Vol. I., p. 289. + +[10] The Lord Chief Justice, John Popham, who was born in 1531, is said to +have been stolen when a child by the gipsies. They disfigured him and +placed on his arm a cabalistic mark. Apparently it was a case of +tattooing. But the story is discredited. + +[11] _Gaujo_ is the name given by the gipsies to all strangers who are not +of the Romany race. + +[12] _Edition_ 1857, vol. i., p. 77. + +[13] Peacock. _Army Lists of Roundheads and Cavaliers_, 2nd edit., 1874, +p. 21. + +[14] Wood, _Athenae Oxon_, sub nom. + +[15] John Loden Gollpried's _Kronyck_, vol. iv., p. 454. Van der Aa, +_Biographisch Woordenboek_, sub voce. + +[16] Carlyle, _Letters and Speeches of Oliver Cromwell_, vol. i., p. 50. + +[17] Henry Scobell, _Acts and Ordinances_, 1645, chapter 57. + +[18] "Michelet's History of France," viii., ch. 1. "Cheruel's Dictionnaire +des Institutions," art. "Cadavre." + +[19] "Pollock and Maitland's History of English Law," ii., 60. Bracton +51b, 262. + +[20] "Lea's Superstition and Force" (ed. 1892), 359-70. + +[21] "Roman de Rou," ii., 9320-40. + +[22] "Three Metrical Romances" (Camden Socy.), xxvi., 33. See "Decretals +of Gregory," lib. ii., tit. 28, cap. 25, _qua fronte_; also "Lyndwood's +Provinciale," p. 278. + +[23] "Bower's Scotichronicon," ii., 275. "Extracta e Cronicis," 150. +"Scalacronica," 144. + +[24] "Robertson's Index," 5, 10, 12, 19, 20, 21. + +[25] "Rolls of Parliament," ii., 335. + +[26] "Rolls of Parliament," iii., 384. + +[27] "Rolls of Parliament," iii., 459. + +[28] "Chronicle of Adam of Usk," pp. 44, 45. + +[29] "Justinian's Institutes," iv., 18. "Digest," xlviii., 4, 11. "Code," +ix., 8. + +[30] "Tacitus," xvi., 11. + +[31] "Code," i., 5, 4. + +[32] "Decretals of Gregory," v., 7, 10. + +[33] "Decretals of Gregory," v., 39, 28. "Lea's Studies in Church +History," 264-66. + +[34] "Haddan and Stubbs's Councils," i., 393. "Lea's Studies," 384, 425. + +[35] "Lea's Chapters from the Religious History of Spain," 372, 492. + +[36] "Cheruel's Dictionnaire," and "Denisart's Collection de Decisions," +art. "Lesemajeste, memoire, suicide." + +[37] For a curious English case of gibbetting a suicide in 1234, see +"Maitland's Bracton's Note Book," 1114: compare "Bracton," fo. 150. + +[38] "La Loy de Beaumont" (Reims 1864), p. 241. + +[39] "Acts of Parliament, Scotland," ii., 356. + +[40] "Mackenzie's Criminal Law," i., 6, 21-2. "Hume's Law of Crimes," i., +539. "Pitcairn's Criminal Trials," ii., 278. "Riddell's Scottish +Peerages," ii., 757-58. + +[41] "Acts Parl. Scot.," ii., 356. + +[42] But = without. + +[43] "Acts Parl. Scot.," ii., 369. + +[44] "Acts Parl. Scot.," ii., 415. + +[45] Case of Earl of Huntly in 1562. Tytler's "Hist. of Scotland," iii., +167. + +[46] "Acts Parl. Scot.," i., 415. + +[47] "Bain's Calendar of Border Papers," ii., 417. + +[48] "Border Papers," ii., 711. + +[49] "Pitcairn's Crim. Trials," ii., 233, 241. + +[50] Pitcairn, ii., 167-8. "Acts Parl. Scot.," iv., 199. + +[51] "Birrel," quoted in "Pitcairn," ii., 247. + +[52] _Quhill_, until. + +[53] For an example in 1603, that of Francis Mowbray, see "Pitcairn," ii., +406-9. + +[54] A full account of the trial is given in "Pitcairn," ii., 276-92. + +[55] Lord Hailes quoted in "Pitcairn," ii., 277. + + + + +SOME RECENT BOOKS PUBLISHED BY WILLIAM ANDREWS & CO., 5, FARRINGDON +AVENUE, LONDON, E.C. + + + "Valuable and interesting."--_The Times._ + + "Readable as well as instructive."--_The Globe._ + + "A valuable addition to any library."--_Derbyshire Times._ + +The Bygone Series. + +In this series the following volumes are included, and issued at 7s. 6d. +each. 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GEO. S. TYACK, B.A. + +_Crown 8vo., 3s. 6d. Numerous Illustrations._ + +The Author of this Volume has brought together much valuable and +out-of-the-way information which cannot fail to interest and instruct the +reader. The work is the result of careful study, and its merits entitle it +to a permanent place in public and private libraries. Many beautiful +illustrations add to the value of the Volume. + + "A book of equal interest to artists, archaeologists, architects, and + the clergy has been written by the Rev. G. S. Tyack, upon 'The Cross + in Ritual, Architecture, and Art.' Although Mr. Tyack has restricted + himself to this country, this work is sufficiently complete for its + purpose, which is to show the manifold uses to which the Cross, the + symbol of the Christian Faith, has been put in Christian lands. It + treats of the Cross in ritual, in Church ornament, as a memorial of + the dead, and in secular mason work; of preaching crosses, wayside and + boundary crosses, well crosses, market crosses, and the Cross in + heraldry. Mr. Tyack has had the assistance of Mr. William Andrews, to + whom he records his indebtedness for the use of his collection of + works, notes, and pictures; but it is evident that this book has cost + many years of research on his own part. It is copiously and well + illustrated, lucidly ordered and written, and deserves to be widely + known."--_Yorkshire Post._ + + "This is an exhaustive treatise on a most interesting subject, and Mr. + Tyack has proved himself to be richly informed and fully qualified to + deal with it. All lovers of ecclesiastical lore will find the volume + instructive and suggestive, while the ordinary reader will be + surprised to find that the Cross in the churchyard or by the roadside + has so many meanings and significances. Mr. Tyack divides his work + into eight sections, beginning with the pre-Christian cross, and then + tracing its development, its adaptations, its special uses, and + applications, and at all times bringing out clearly its symbolic + purposes. We have the history of the Cross in the Church, of its use + as an ornament, and of its use as a public and secular instrument; + then we get a chapter on 'Memorial Crosses,' and another on 'Wayside + and Boundary Crosses.' The volume teems with facts, and it is evident + that Mr. Tyack has made his study a labour of love, and spared no + research in order, within the prescribed limits, to make his work + complete. He has given us a valuable work of reference, and a very + instructive and entertaining volume."--_Birmingham Daily Gazette._ + + "An engrossing and instructive narrative."--_Dundee Advertiser._ + + "As a popular account of the Cross in history, we do not know that a + better book can be named."--_Glasgow Herald._ + + +In The Temple. + +By a BARRISTER-AT-LAW. + +_Price One Shilling._ + +This book opens with a chapter on the history of the Temple. Next follows +an account of the Knight Templars. The story of the Devil's Own is given +in a graphic manner. A Sketch of Christmas in the Temple is included. In +an entertaining manner the reader is informed how to become a Templar, the +manner of keeping terms is described, and lastly, the work concludes with +a chapter on call parties. + + "Amusing and interesting sketches."--_Law Times._ + + "Pleasing gossip about the barristers' quarters."--_The Gentlewoman._ + + "A pleasant little volume."--_The Globe._ + + +The Red, Red Wine. + +By THE REV. J. JACKSON WRAY. + +_Crown 8vo., 330 pp. A portrait of the Author and other illustrations._ + +_Price 3s. 6d._ + +"This, as its name implies, is a temperance story, and is told in the +lamented author's most graphic style. We have never read anything so +powerful since 'Danesbury House,' and this book in stern and pathetic +earnestness even excels that widely-known book. It is worthy a place in +every Sunday School and village library; and, as the latest utterance of +one whose writings are so deservedly popular, it is sure of a welcome. It +should give decision to some whose views about Local Option are +hazy."--_Joyful News._ + +"The story is one of remarkable power."--_The Temperance Record._ + +"An excellent and interesting story."--_The Temperance Chronicle._ + + +Faces on the Queen's Highway. + +By FLO. JACKSON. + +_Elegantly Bound, Crown 8vo., price 2s. 6d._ + +Though oftenest to be found in a pensive mood, the writer of this very +dainty volume of sketches is always very sweet and winning. She has +evidently a true artist's love of nature, and in a few lines can limn an +autumn landscape full of colour, and the life which is on the down slope. +And she can tell a very taking story, as witness the sketch "At the Inn," +and "The Master of White Hags," and all her characters are real, live +flesh-and-blood people, who do things naturally, and give very great +pleasure to the reader accordingly. Miss Jackson's gifts are of a very +high order.--_Aberdeen Free Press._ + + +Old Church Lore. + +BY WILLIAM ANDREWS, F.R.H.S. + +_Demy 8vo., 7s. 6d._ + +CONTENTS--The Right of Sanctuary--The Romance of Trial--A Fight between +the Mayor of Hull and the Archbishop of York--Chapels on Bridges--Charter +Horns--Tho Old English Sunday--The Easter Sepulchre--St. Paul's +Cross--Cheapside Cross--The Biddenden Maids Charity--Plagues and +Pestilences--A King Curing an Abbot of Indigestion--The Services and +Customs of Royal Oak Day--Marrying in a White Sheet--Marrying under the +Gallows--Kissing the Bride--Hot Ale at Weddings--Marrying Children--The +Passing Bell--Concerning Coffins--The Curfew Bell--Curious Symbols of the +Saints--Acrobats on Steeples--A carefully prepared Index--Illustrated. + + "An interesting volume."--_The Scotsman._ + + "A worthy work on a deeply interesting subject.... We commend this + book strongly."--_European Mail._ + + "The book is eminently readable, and may be taken up at any moment + with the certainty that something suggestive or entertaining will + present itself."--_Glasgow Citizen._ + + "Mr. Andrews' book does not contain a dull page.... Deserves to meet + with a very warm welcome."--_Yorkshire Post._ + + +A Lawyer's Secrets. + +BY HERBERT LLOYD. + +AUTHOR OF "THE CHILDREN OF CHANCE," ETC. + +_Price One Shilling._ + +"Mr. Herbert Lloyd gives us a succession of stories which may reasonably +be taken to have their origin in the experience of a lawyer practicing at +large in the criminal courts. It is natural that they should be of a +romantic nature; but romance is not foreign to a lawyer's consulting room, +so that this fact need not be charged against this lawyer's veracity.... +The stories, seven in all, cover the ground of fraud and murder, inspired +by the prevailing causes of crime--greed and jealousy. Our lawyer is happy +in having the majority of his clients the innocent victims of false +charges inspired and fostered in a great measure by their own folly; but +this is a natural phase of professional experience, and we are only +concerned with the fact that he generally manages it as effectively in the +interests of his clients as his editor does in presenting them to his +audience."--_Literary World._ + +"A volume of entertaining stories.... The book has much the same interest +as a volume of detective stories, except that putting the cases in a +lawyer's mouth gives them a certain freshness. It is well written, and +makes a capital volume for a railway journey."--_The Scotsman._ + +"A very entertaining volume."--_Birmingham Daily Gazette._ + + + + + + +End of the Project Gutenberg EBook of Legal Lore, by Various + +*** END OF THIS PROJECT GUTENBERG EBOOK LEGAL LORE *** + +***** This file should be named 38589.txt or 38589.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/3/8/5/8/38589/ + +Produced by The Online Distributed Proofreading Team at +https://www.pgdp.net (This file was produced from images +generously made available by The Internet Archive.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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