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+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 _resum�_. 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
+_Mit�csher�_, 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
+_vishan�ga_, 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 _n�ga_ 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 C�sha the accused is made to drink
+three draughts of water in which images of the Sun, of D�v�, 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 r�le 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 �15,000--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 �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 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 j�ger 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 Br�nn, 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 �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 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 prim�val 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 pal�olithic 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 Medi�val 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
+the�gns.
+
+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 �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.
+
+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 "Curiosit�s
+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 Beaufir�.
+
+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 Societ� 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 Societ� 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 cur� 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 �500 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 �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. "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 F�nfkirchen, 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 �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 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 _ga�jos_[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."       �0 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 �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 _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 C�sar, too,
+  Loved much to back his bird; and, furthermore,
+  Marc Antony's gamecocks did always lose
+  When pitted against C�sar'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
+�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. 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 R�ntgen 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 _proc�s 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 medi�val 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 _proc�s 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 medi�val 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 H�ritage 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 _d�no�ment_, 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 Sup�rieur_, 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 �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 pr�v�t 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 �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.
+
+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 �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.
+
+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'�tre_ 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 medi�val 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 medi�val 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
+_induci�_ 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 priv�es_ 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] _Ga�jo_ 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.
+
+
+
+
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+
+
+
+
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