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diff --git a/old/55724-8.txt b/old/55724-8.txt deleted file mode 100644 index 43d86ea..0000000 --- a/old/55724-8.txt +++ /dev/null @@ -1,2635 +0,0 @@ -The Project Gutenberg EBook of The Law's Lumber Room, by Francis Watt - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world 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. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - - - -Title: The Law's Lumber Room - -Author: Francis Watt - -Release Date: October 9, 2017 [EBook #55724] -[Last updated: October 19, 2020] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK THE LAW'S LUMBER ROOM *** - - - - -Produced by deaurider, David E. Brown and the Online -Distributed Proofreading Team at http://www.pgdp.net (This -file was produced from images generously made available -by The Internet Archive) - - - - - - - - - -The Law's Lumber Room - - - - -_Of this Edition 600 copies have been printed for England and America._ - - - - - The - - Law's Lumber Room - - By - - Francis Watt - - - London - - John Lane, The Bodley Head, Vigo St. - Chicago: A. C. McClurg & Co. - - MDCCCXCV - - - - - TO - WILLIAM ERNEST HENLEY - FLOTSAM AND JETSAM - FROM HIS OLD JOURNAL - - - - -PREFATORY - - -To the Lumber Room you drag furniture no longer fit for daily use, -and there it lies, old fashioned, cumbrous, covered year by year with -fresh depths of dust. Is it fanciful to apply this image to the Law? -Has not that its Lumber Room of repealed Statutes, discarded methods, -antiquated text-books--"many a quaint and curious volume of forgotten -lore"? - -But law, even when an actual part of the life of to-day is like to -prove a tedious thing to the lay reader, can one hope to find the dry -bones of romance in its antiquities? I venture to answer, "Yes." Among -all the rubbish, the outworn instruments of cruelty, superstition, -terror, there are things of interest. "Benefit of Clergy," the "Right -of Sanctuary," bulk large in English literature; the "Law of the -Forest" gives us a glimpse into the life of Mediæval England as -actual as, though so much more sombre than, the vision conjured up in -Chaucer's magic _Prologue_. "Trial by Ordeal" and "Wager of Battle" -touch on superstitions and beliefs that lay at the very core of the -nation's being. - -"As full of fictions as English law," wrote Macaulay in the early -part of the century; but we have changed that, we are more practical, -if less picturesque, and John Doe and all his tribe are long out of -date. Between the reign of James I. and that of Victoria all the -subjects here discussed have suffered change, with one exception. The -"Press-Gang" is still a legal possibility, but how hard to fancy it -ever again in actual use! - -I fear that these glimpses of other days may seem harsh and sombre; -there is blood everywhere; the cruel consequences of law or custom are -pushed to their logical conclusions with ruthless determination. The -contrast to the almost morbid sentimentalism of to-day is striking. -So difficult it seems to hit the just mean! But the improvement is -enormous. Gibes at the Law are the solace of its victims, and no one -would deprive them of so innocent a relief, yet if these cared to -enquire they would often find that the mark of their jest had vanished -years ago to the Lumber Room. - -The plan of these papers did not permit a detailed reference to -authorities, but I have mentioned every work from which I derived -special assistance. I will only add that this little book originally -appeared as contributions to the _National Observer_ under Mr W. E. -Henley's editorship. I have made a few additions and corrections. - - - - -CONTENTS - - - PAGE - - BENEFIT OF CLERGY 1 - - PEINE FORTE ET DURE 10 - - A PASSAGE IN SHAKESPEARE (FINES AND RECOVERIES) 26 - - THE CUSTOM OF THE MANOR 36 - - DEODANDS 54 - - THE LAW OF THE FOREST 62 - - PAR NOBILE FRATRUM (JOHN DOE AND RICHARD ROE) 74 - - SANCTUARY 84 - - TRIAL BY ORDEAL 98 - - WAGER OF BATTLE 107 - - THE PRESS GANG 120 - - SUMPTUARY LAWS 129 - - - - -BENEFIT OF CLERGY - - -"Benefit of Clergy" is a phrase which has entered into English -literature and English thought. The thing itself exists no longer, -though the last traces of it were only removed during the present -reign; but it so strikingly illustrates certain peculiarities of -English law-making, it has, moreover, so curious a history as to be -interesting even to-day. It took its rise in times when the pretensions -of the Church, high in themselves, were highly favoured by the secular -power. The clergy was a distinct order, and to subject its members to -the jurisdiction of the secular courts was deemed improper; so, when -a clerk was seized under a charge of murder, or some other crime, the -ordinary stepped forth and claimed him for the "Court Christian," -whereto the whole matter was at once relegated. There the bishop or -his deputy sat as judge. There was a jury of twelve clerks before whom -the prisoner declared his innocence on oath. He was ready with twelve -compurgators (a species of witnesses to character) who, after their -kind, said more good of him than they had any warrant for; after which, -on the question of fact, some witnesses were examined for, but none -against him. This curious proceeding, which was not abolished till the -time of Elizabeth, soon became a sham. Nearly every accused got off, -and the rare verdict of guilty had no worse result than degradation or -imprisonment. - -Now, so far, the system is intelligible, but in the succeeding -centuries it lost this quality. English legal reformers have ever shown -a strong disinclination to make a clean sweep of a system, but they -keep tinkering at it year after year with a view of making it more -rational or better adapted to current needs. They did so here, and the -result was a strange jumble of contradictions. First, the privilege -was confined to such as had the clerical dress and tonsure, afterwards -it was extended to mere assistants, the very door-keepers being held -within the charmed circle; yet the line had to be drawn somewhere, -and how to decide when every ruffian at his wits' end for a defence -was certain with blatant voice to claim the privilege? Well, could -he read? If so, ten to one he was an ecclesiastic of some sort, and -therefore entitled to his clergy. And it soon came that this was the -only test demanded. If you could read you were presumed a parson, and -had your right to at least one crime free. As no woman could possibly -be ordained, she could not "pray her clergy"--(an exception was made -in the case of a professed nun)--nor might a _bigamus_, who was not -a man who had committed bigamy, but one who "hath married two wives -or one widow." However, a statute (1 Edw. VI., c. 12, s. 16, _temp._ -1547) made an end of this latter distinction by declaring, with quaint -tautology that _bigami_ were to have their clergy, "although they or -any of them have been divers and sundry times married to any single -woman or single women, or to any widow or widows, or to two wives -or more." Before this it might well be that your chance of saving -your neck depended on whether you had married a widow or not; which -species was dangerous in a sense undreamt of by Mr Weller. As regards -the reading, it must not be supposed that a difficult examination was -passed by the prisoner before he escaped. You had but to read what -came to be significantly called the Neck-verse from the book which -the officer of court handed you when you "prayed your clergy." The -Neck-verse was the first verse of the fifty-first Psalm in the Vulgate. -It was only three words--_Miserere mei, Deus_: "Have mercy on me, O -God." It seems strange that it was ever recorded of anyone that he -did not read, and was therefore condemned to be hanged; for surely -it were easy to get these words by heart and to repeat them at the -proper time? This must have been done in many cases, and yet sometimes -criminals were so densely ignorant and stupid, or it might be merely -bewildered, that they failed; then the wretch paid the penalty of his -life. "_Suspendatur_," wrote the scribe against his name, and off he -was hauled. The endless repetition of this word proved too much for -official patience, and with brutal brevity the inscription finally -appears, "Sus." or "S." - -And now the Neck-verse was free to everyone were he or were he not in -holy orders, and he claimed the privilege after conviction, but in the -reign of Henry VII. (1487) an important change was made. A person who -claimed clergy was to be branded on the crown of his thumb with an -"M" if he were a murderer, with a "T" if he were guilty of any other -felony; if he "prayed his clergy" a second time this was refused him, -unless he were actually in orders. Of course the mark on the thumb was -to record his previous escape from justice. It was with this "Tyburn -T" (as it was called in Elizabethan slang) that Ben Jonson was branded. -It is only within the last few years that careful Mr Cordy Jeaffreson -has exhumed the true story from the Middlesex County Records. The -poet quarrelled and fought a duel with Gabriel Spencer, an actor, and -probably a former colleague. The affair came off at Shoreditch. Jonson, -with his rapier, which the indictment (for a reason explained in the -chapter on "Deodands") values at three shillings, briskly attacked his -opponent, and almost immediately gave him a thrust in the side, whereof -Spencer died then and there. Ben was forthwith seized and thrown into -prison. Whilst waiting his trial he said that spies were set on him, -but he was too much for them, and afterwards all the judges got from -him was but "Ay" and "No." Why spies should have been necessary in so -plain a case is far from clear. It is more significant that a devoted -priest succeeded in converting him for the time to Roman Catholicism, -and he afterwards confessed to Drummond of Hawthornden that he had -come near the gallows. However, what he said, or did not say, is of -little weight as compared with the evidence of contemporary judicial -records. The fact is clear that the poet of _Every Man in his Humour_, -the cunning artist of _Queen and Huntress_, and _Drink to me only with -thine Eyes_, had a true bill found against him by the grand jury, who -sat, by the way, in a tavern, for as yet Hicks Hall, the predecessor of -the Session's-House on Clerkenwell Green, was not. - -In October 1598, he was taken to the Old Bailey to stand his trial. -He pleaded guilty, asked for the book, read like a clerk ("Jonson's -learned sock," forsooth!), and as the strangely abbreviated Latin of -the record has it, "_sign' cum lra' T et del_," that is, marked with -the letter "T," and set at large to repair to "The Sun," "The Bolt," -"The Triple Tun," or some other of those dim, enchanting Elizabethan -taverns, there to give such an account of the transaction as sufficed -to dissemble it till this age of grubbers and dictionaries wherein -you are destined to nose every ancient scandal as you go up the -staircase of letters. It has been suggested that the officer, moved -to inexplicable tenderness, touched him with a cold iron. The only -ground for this is that Dekker, in his savage Satiro Mastix; or, _The -Untrussing of the Humourous Poet_, makes no reference to the "Tyburn -T." One fancies that Ben speedily acquired a trick of carrying his hand -so that the mark was not readily seen, or he may have cut or burnt it -out as others did. All the same, the best evidence shows it to have -been there. - -In the reign of James I. another change was made. Women got the benefit -of clergy in certain cases, and afterwards they were put on the same -footing as men. Then in 1705 the necessity for reading was abolished, -and in 1779 so was branding. - -But another process was going on all this time. A great and -ever-increasing number of crimes were declared to be without benefit -of clergy. The selection was somewhat capricious. Among the exempted -felonies were abduction with intent to marry, stealing clothes off -the racks, stealing the kings' stores, and so on. Naturally the whole -subject fell into inextricable confusion, and when it was abolished -in 1827, even pedants must have given a sigh of relief. One detail -escaped the reformer: since the time of Edward VI. every peer ("though -he cannot read," saith the statute) enjoyed a privilege akin to that of -clergy, and it was not till 1841 that this last vestige of the system -vanished from the statute-book. I will only add that, in its details, -"benefit of clergy" was even more grotesque and fantastic than it has -here been possible to set forth. - - - - -PEINE FORTE ET DURE - - -In England during many centuries a prisoner was called to the bar -before trial and enjoined to hold up his right hand, by which act he -was held to admit himself the person named in the indictment. The -clerk then asked him, "How say you, are you guilty or not guilty?" If -he answered, "Not guilty," the next question was: "Culprit, how will -you be tried?" to which he responded, "By God and my country." "God -send you a good deliverance," rejoined the official, and the trial -went forward. If the accused missed any of these responses, or would -not speak at all, and if the offence were treason or a misdemeanour, -his silence was taken for confession of guilt, and sentence was passed -forthwith. If the charge were felony, a jury was empanelled to try -whether he stood "mute of malice," or "mute by the visitation of -God." If this last were found, the trial went on; if the other, he -was solemnly warned by the judges of the terrible consequences summed -up by Lord Coke (trial of Sir Richard Weston in 1615, for Sir Thomas -Overbury's murder) in the three words--_onere, frigore, et fame_. -The proceedings were most commonly adjourned to give him time for -reflection; but if after every exhortation he remained obdurate, then -he was adjudged to suffer the _peine forte et dure_. The judgment of -the Court was in these words: "That you return from whence you came, -to a low dungeon into which no light can enter; that you be stripped -naked save a cloth about your loins, and laid down, your back upon the -ground; that there be set upon your body a weight of iron as great as -you can bear--and greater; that you have no sustenance, save on the -first day three morsels of the coarsest bread, on the second day three -draughts of stagnant water from the pool nearest the prison door, on -the third day again three morsels of bread as before, and such bread -and such water alternately from day to day; till you be pressed to -death; your hands and feet tied to posts, and a sharp stone under your -back." - -There is but one rational way to discuss an institution of this sort. -Let us trace out its history, for thus only can we explain how it -came to have an existence at all. For the prisoner himself there was -usually a very strong reason why _he_ should stand mute. If he were -convicted of felony his goods were forfeited; while in case of capital -felony, the result of attainder was corruption of blood so that he -could neither inherit nor transmit landed property. Often he must -have known that conviction was certain. Had he fondness enough for -his heirs--children or other--to make him choose this hideous torture -instead of milder methods whereby the law despatched the ordinary -convict from this world? Well, very many underwent the punishment. -Between 1609-1618 the number was thirty-two (three of them women) in -rural Middlesex alone. "_Mortuus en pen' fort' et dur'_," so the clerk -wrote for epitaph against each name, and something still stranger than -the penalty itself is revealed to us by an examination of the original -records. Many of the culprits were evidently totally destitute, and -these underwent the _peine forte et dure_ from stupidity, obstinacy, or -sheer indifference to mortal suffering and death. - -The custom of pressing did not obtain its full development at once, and -there is some difficulty as to how it began. A plausible explanation is -given in Pike's "History of Crime," and is supported by the authority -of the late Mr Justice Stephen. At one time a man charged with a -serious offence was tried by ordeal; but by paying money to the king, -it was possible to get the exceptional privilege of a trial by jury. -Thus, when the accused was asked how he would be tried, his answer -originally ran, "by God" (equal to by ordeal), or "by my country" -(equal to by jury), since to put yourself on the country meant to -submit yourself to this last. But trial by ordeal was abolished -about 1215, and the alternative was a privilege to be claimed, not a -necessity to be endured. Offenders soon discovered that by standing -mute and declining to claim this privilege, they put the Court in a -difficulty. The ideas of those distant days were simple exceedingly, -and a legal form had strange force and efficacy. To put a prisoner -before a jury without his consent was not to be thought of; but how -to get his consent? At first the knot was rather cut than loosened. -Thus, in some cases, the accused were put to death right off for not -consenting to be tried "according to the law and custom of the realm." -Then this was held too severe, and under Edward I., in the proceedings -of the Parliament of Westminster, occurs the earliest definite mention -of the punishment. It was enacted that notorious felons refusing to -plead should be confined in the _prison forte et dure_. Here they went -"barefooted and bareheaded, in their coat only in prison, upon the bare -ground continually night and day, fastened down with irons," and only -eating and drinking on alternate days as already set forth. It was -bad enough, no doubt, but not of necessity fatal. So the authorities -perceived, and they again cut the knot by a policy of starvation. So -one infers from the case of Cecilia, wife of John Rygeway, in the time -of Edward III. Cecilia was indicted for the murder of her husband; she -refused to plead. Being committed to prison, she lived without meat or -drink for forty days; and this being set down to the Virgin Mary, she -was thereupon allowed to go free. This procedure seems to have been -found too slow, and the increase of business at the assizes seemed like -to end in a hopeless block. Were the judges to encamp in a country town -while the prisoners made up their mind as to pleading? Something was -wanted to "mend or end" the stubborn rascals; and under Henry IV., in -the beginning of the fifteenth century, the "prison" _forte et dure_ -became the "peine" _forte et dure_: with the consequence that, if the -accused declined to plead, there was an end of him in a few hours, the -provision of bread and water being a mere remnant of the older form of -sentence. This procedure lasted till 1772, when the 12 Geo. III., c. -20 made "standing mute in cases of felony equivalent to conviction." -In 1827 it was enacted by 7 and 8 Geo. IV., c. 28, "that in such -cases a plea of not guilty should be entered for the person accused." -The curious formal dialogue between the clerk and the prisoner was -abolished that same year. Something stronger than exhortation was now -and again used before the obdurate prisoner was sentenced to pressing, -thus at the Old Bailey in 1734, the thumbs of one John Durant were tied -together with whipcord, which the executioner strung up hard and tight -in presence of the Court; he was promised the _peine forte et dure_ -if this did not answer, but upon a little time being given him for -reflection, he speedily made up his mind to plead not guilty. - -It is difficult to explain the distinction drawn between ordinary -felony on the one hand and treason and misdemeanours on the other. -Perhaps the explanation is that the last, being much lighter offences, -were never made the subject of trial by ordeal, and that treason -being a crime endangering the very existence of the State, a sort of -necessity compelled the judge to proceed in the most summary manner. -No student of English History needs to be reminded that a trial for -treason resulted almost as a matter of course in a conviction for -treason. Peers of the realm had many privileges, but they were not -exempt from the consequences of standing mute. Nor, as already noted, -were women. Perhaps it were unreasonable to expect a criticism of the -system from contemporary judges or text writers; but what they did say -was odd enough; they did not condemn pressing, but they highly extolled -the clemency of the law which directed the Court to reason with and -admonish the accused before it submitted him to this dread penalty. - -I shall now give some examples of practice. Fortunately (or -unfortunately you may think as you read) we have at least one case -recorded in great detail, though, curiously enough, it has escaped the -notice of an authority so eminent as Mr Justice Stephen. - -Margaret Clitherow was pressed to death at York on Lady Day, March -25th, 1586, and the story thereof was written by John Mush, secular -priest, and her spiritual director. Margaret's husband was a -Protestant, though his brother was a priest, and all his children -appear to have been of the older faith. Accused of harbouring Jesuit -and Seminary priests, of hearing mass, and so on, she was committed -to York Castle, and in due time was arraigned in the Common Hall. -In answer to the usual questions, she said that she would be tried -"by God and by your own consciences," and refused to make any other -answer. It was sheer obstinacy: she was a married woman, and she could -have lost nothing by going to trial. But she coveted martyrdom, which -everybody concerned appears, at first at any rate, to have been anxious -to deny her. It was plainly intimated that if she would let herself -be tried she would escape: "I think the country," said Clinch, the -senior judge, "cannot find you guilty upon the slender evidence." The -proceedings were adjourned, and the same night "Parson Whigington, a -Puritan preacher," came and argued with her, apparently in the hope of -persuading her to plead; but he failed to change her purpose; the next -day she was brought back to the Hall. Something of a wrangle ensued -between herself and Clinch, and in the end the latter seemed on the -point of pronouncing sentence. Then Whigington stood up and began to -speak; "the murmuring and noise in the Hall would not suffer him to be -heard;" but he would not be put off, and "the judge commanded silence -to hear him." He made a passionate appeal to the Court ("Did not -perhaps God open the mouth of Balaam's ass?" is the somewhat ungracious -comment of Father Mush.) "My lord," said he, "take heed what you do. -You sit here to do justice; this woman's case is touching life and -death, you ought not, either by God's law or man's, to judge her to die -upon the slender witness of a boy;" with much more to the same effect. -Clinch was at his wits' end, and went so far as to entreat the prisoner -to plead in the proper form: "Good woman, I pray you put yourself to -the country. There is no evidence but a boy against you, and whatsoever -they (the jury) do, yet we may show mercy afterwards." She was moved -not a whit; and then Rhodes, the other judge, broke in: "Why stand -we all day about this naughty, wilful woman?" Yet once again she was -entreated, but as vainly as before; it was evident that the law must -take its course; and "then the judge bade the sheriff look to her, -who pinioned her arms with a cord." She was carried back to prison -through the crowd, of whom some said, "She received comfort from the -Holy Ghost;" others, "that she was possessed of a merry devil." When -her husband was told of her condemnation, "he fared like a man out of -his wits, and wept so vehemently that the blood gushed out of his nose -in great quantity." Some of the Council suggested that she was with -child. There seems to have been some foundation for the remark, at any -rate, Clinch caught eagerly at the idea. "God defend she should die if -she be with child," said he several times, when the sheriff asked for -directions, and others of sterner mould were pressing for her despatch. -Kind-hearted Whigington tried again and again to persuade her; and the -Lord Mayor of York, who had married her mother ("a rich widow which -died before this tragedy the summer last"), begged her on his knees, -"with great show of sorrow and affection," to pronounce the words -that had such strange efficacy. It was all in vain, so at last even -Whigington abandoned his attempt, and "after he had pitied her case -awhile, he departed and came no more." - -Her execution was fixed for Friday, and the fact was notified to her -the night before. In the early morning of her last day on earth she -quietly talked the matter over with another woman. "I will procure," -the woman said, "some friends to lay weight on you, that you may be -quickly despatched from your pain." She answered her that it must not -be. At eight the sheriffs came for her, and "she went barefoot and -barelegged, her gown loose about her." The short street was crowded -with people to whom she dealt forth alms. At the appointed place, -one of the sheriffs, "abhorring the cruel fact, stood weeping at the -door;" but the other, whose name was Fawcett, was of harder stuff. He -"commanded her to put off her apparel," whereupon she and the other -woman "requested him, on their knees, that she might die in her smock, -and that for the honour of womankind they would not see her naked." -That could not be granted, but they were allowed to clothe her in a -long habit of linen she had herself prepared for the occasion. She now -lay down on the ground. On her face was a handkerchief. A door was laid -upon her. "Her hands she joined towards her face"; but Fawcett said -they must be bound, and bound they were to two posts, "so that her body -and her arms made a perfect cross." They continued to vex the passing -soul with vain words, but at last they put the weights on the door. In -her intolerable anguish she gave but a single cry: "Jesu! Jesu! Jesu! -have mercy upon me!" Then there was stillness; though the end was not -yet. "She was in dying one quarter of an hour. A sharp stone as much as -a man's fist put under her back, upon her was laid a quantity of seven -or eight hundredweight to the least, which, breaking her ribs, caused -them, to burst forth of the skin." It was now nine in the morning, but -not till three of the afternoon were the braised remains taken from -the press. - -Stories of violence and cruelty serve not our purpose unless they -illustrate some point, and I shall but refer to two other cases. - -Major Strangeways was arraigned in 1658 (under the Commonwealth be -it noted) for the murder of his brother-in-law. In presence of the -coroner's jury he was made to take the corpse by the hand and touch its -wounds, for it was supposed that, if he were guilty, these would bleed -afresh. There was no bleeding, but this availed him nothing, and he was -put on his trial at the Old Bailey in due course. He refused to plead, -and made no secret of his motive; he foresaw conviction, and desired -to prevent the forfeiture of his estate. He was ordered to undergo the -_peine forte et dure_. The press was put on him angle-wise; it was -enough to hurt, but not to kill, so the bystanders benevolently added -their weight, and in ten minutes all was over. The dead body was then -displayed to the public. - -Again, in 1726, a man named Burnworth was arraigned at Kingston for -murder. At first he refused to plead, but after being pressed for an -hour and three-quarters with four hundredweight of iron, he yielded. He -was carried back to the dock, said he was not guilty, and was tried, -convicted, and hanged. There was at least one case in the reign of -George II.--but enough of such horrors. - - - - -A PASSAGE IN SHAKESPEARE - -FINES AND RECOVERIES - - -"Is this the fine of his fines, and the recovery of his recoveries, to -have his fine pate full of fine dust? Will his vouchers vouch him no -more of his purchases, and double ones too, than the length and breadth -of a pair of indentures?" Thus the Prince of Denmark moralising in the -graveyard scene in Hamlet over the skull of a supposed lawyer: with -more to the same effect, all showing that Shakespeare had a knowledge -of law terms remarkable in a layman, and that he used them with curious -precision. In the huge body of Shakespearian literature there are -special works (one by Lord Chancellor Campbell) on the fact, which -has been used to buttress up the Baconian authorship theory (indeed, -it is the only positive fact at all in point). Again, it has been -conjectured that the dramatist spent some time in a lawyer's office, -and that phrases from the deeds he engrossed stuck in his memory. It is -far more likely that, being the man of his age he was, he would read -in and round the law as well as much else for its own sake, and that -fines and recoveries were so odd in themselves, and so excellently -illustrative of English history and procedure, that they fairly took -his mighty fancy. - -Recoveries were already some two hundred years old in his time, and, -to judge from the tone of the passage, people must even then have held -them in derision. But they were to last full two hundred years more; -for not till 1833 did they vanish from the scene. Recoveries were -methods of disentailing an estate by means of a complicated series of -fictions. They arose in this way:--Before 1285, when land was given -to a man and the heirs of his body, the judges ruled that, the moment -a son was born, the father held the estate as a simple freehold, -which he could sell or make away with very much as he chose. The -great landowners were ill-content at this; they meant their tenants -to enjoy their estates only as long as they rendered useful service -in return, and if issue failed a man, they thought the land should -revert to his lord on his death. Hence in that year an act procured -by their influence, called _De Donis Conditionalibus_, or the Statute -of Westminster the Second (13 Ed. I., c. 1), created the Estate -Tail (_i.e._ _Taillé_, or restricted). It provided that land given -to a man and his heirs as above, reverted to the original donor on -failure of the donee's issue. Blackstone waxes eloquent over the evils -that ensued. Children declined obedience to a father who could not -disinherit; farmers lost their leases, which had no force against the -heir; and creditors were defrauded of their debts, which constituted -no charge on the land, nay, treasons were fostered, insomuch as the -traitor's interest lapsing at his death, nothing was left for the king -to seize. Yet it was not till the reign of Edward IV. that a device -was found to evade the Statute. _Taltarum's Case_ was decided in 1472. -It is loosely said that this established the validity of recoveries, -but they were in use some time before, and Sir Frederick Pollock will -have it that it was the oddity of the name which made a landmark -of the decision. A Recovery was a sort of friendly or fictitious -action, whereby the estate was adjudged to an outsider, whose claim, -though baseless--if one did not look beyond the four corners of the -action--was acquiesced in by the nominal defendant. - -The mediæval lawyer was usually a priest, and he had found those -entails grievous obstacles in the way of the Church's aggrandisement. -Perhaps, too, as the country grew in wealth, so rigid a law of -settlement bore hard on an ever-waxing commercial class. To repeal -the Statute seemed impossible, but the great landowners, while proof -against force and impermeable to argument, were not hard to outwit. A -legal complication passed their understanding; and this one, however -brazen, had the patronage of many powerful interests. Thus, and thus -only, may the fact of their acquiescence be explained. - -And now let us trace out the steps in a common recovery with "double -voucher." The judges had already made one preparatory breach in the -law. A tenant in tail could dispose of his estate if he left other -lands of the same value; for these his heirs held under the same -conditions as the original property. The principle of this decision was -ingeniously used as a lever to overthrow the system. - -Suppose A, tenant in tail, had contracted to sell his land to B: he -began by formally disposing of it to C, usually his attorney, and -technically called "Tenant to the _præcipe_," or writ. Then B commenced -an action in the Common Pleas against C to recover the estate in -question, which, he asserted, had been wrongfully taken from him. C, -instead of defending the action, "vouched to warranty" A: that is, he -called in A to defend, on the ground that the said A had covenanted to -support his title; but A, instead of defending the action, "vouched to -warranty" D. This last, called the "common vouchee" (in the form in -Blackstone he appears as "Jacob Morland"), was always the "Crier to the -Court," and for playing his part received the modest fee of fourpence -on each recovery. At first he (Jacob) made a great show at fight; he -denied all B's statements, and "put himself upon the country:" _i.e._ -he demanded that the case should go before a jury for trial. B then -craved leave "to imparl" (_i.e._ to have a private conference with -Jacob), and the proceedings were solemnly adjourned. When they were -resumed Jacob was not to be found: "he hath (it was adjudged) departed -in contempt of the Court." Evidently, or so it seemed, he had no answer -to make. Then B's claim was allowed; C was to have of the lands of A -a quantity equal to what he had nominally lost; whilst A, in his turn, -was to have the same remedy against Jacob, who, having no means at all, -cheerfully accepted much paper responsibility. Then a writ was issued -to the sheriff of the county wherein the lands were situate, directing -him to give possession to B, whose title was constituted by a record of -all the aforesaid transactions. - -As the centuries went by the proceedings became ever less substantial, -the action was always commenced by the issue of a writ in the usual -way, but most of the other steps were only taken on paper. Sir -Frederick Pollock says, that if the disentailer were a peer, a sergeant -was actually briefed to move the court in the matter: also, one must -note that lands held from the crown were never subject to this process -(nor can they now be disentailed without a special act of Parliament). -By another barefaced fiction, colonial property might be disentailed -in England. The deed roundly asserted that the island of Antigua (or -wherenot) lay in the parish of St Mary, Islington--the operation of -this geographical miracle giving jurisdiction to the Court of Common -Pleas. One would suppose that something simpler might have served; but -though laymen jeered, lawyers regarded these quaint formalities with -strange reverence. My Lord Coke mentions with solemn reprobation a -counsel named Hoord who scoffed thereat in the House of Lords, and whom -a judge gravely rebuked as not worthy to be of the profession of the -law, for that he "durst speak against common recoveries;" and as late -as 1820, Thomas Coventry, Esq., of Lincoln's Inn, concludes his learned -treatise on the subject with an eloquent if slightly confused protest -against any change, "which could know no end but an apparent confusion, -or clearing away a path for the access of some modern Pretender to -strip the ivy from the venerable oak of our boasted constitution, the -only emblem that remains of its antiquity and endurance." - -And now for a word on fines. These were so called for that they made -an end of a controversy. They were simpler and even more ancient than -recoveries. A fictitious action was begun by the purchaser against the -vendor of an estate, wherein the latter soon gave in: the case was -compromised, a fine was paid to the Crown, upon the Court giving its -consent to this termination of the proceedings, and the record thereof -became the purchaser's title. They were likewise used to bar entails, -though they were not so effectual as recoveries. One of the first Acts -of the Reform Parliament of 1833 was the Statute for the Abolition of -Fines and Recoveries. It was a mere question of procedure, for the -law itself remained unaltered: but disentailment was effected by the -enrolment of a deed in Chancery. And now the dust lies thick on shelves -of text-books--a whole system of learning, full of intricate details, -the creation of centuries of perverse ingenuity. - -And the land-owners? These, too, long since availed themselves of the -dark and subtle devices of the conveyancer. Sir Orlando Bridgman, a -great lawyer of the Commonwealth, and finally Chief Justice of the -Common Pleas under Charles II., invented and perfected the system of -family settlements which to-day secures the secular interests of our -great historic houses, as well as, if less directly than, any enactment -could do. - - - - -THE CUSTOM OF THE MANOR - - -Has chance or necessity ever opened to you the charter-chest of the -respectable solicitor in some country town? Then, among his records, -you have noted an interminable series of parchment volumes--very thick, -very closely written, some centuries old, and one in current use. These -are the court-rolls of the Manor of Wherenot. If you can spell out the -beautifully written mediæval characters, you are sure to light on many -a quaint record of by-gone folk and their ways, for, better than aught -else, the manor and its muniments preserve for us the English past. - -Manors, they used to say, arose in this fashion. A great lord obtained -a piece of land from the King; part he disposed of to tenants who held -of him in freehold (this sub-infeudation was stopped by the statute -_quia emptores_ in 1290); the rest was his domain, on part of which he -built the manor house, another part was cultivated by villeins, then -the cotters had dwellings with portions of land, and the residue was -waste, where the folk of the manor pastured their cattle, gathered -fuel, and made their ways. Sometimes these villeins were slaves, but -each had his patch of soil, wherefor he rendered some servile office to -his lord, ploughing his land, garnering his crops, or such like. The -business of the manor was transacted in two courts, the Court Baron -and the Customary Court. The first was attended by the freeholders, -who themselves constituted the Court; the second by the villeins, -who merely hearkened to and witnessed the doings of the lord or his -steward. When a villein died, the fact that the new tenant had such and -such a field on condition of rendering so many days' labour yearly was -noted in the records or roll of the Customary Court, and this roll, -or a copy of it, becoming his title, he was dubbed a copyholder. In -theory he was a mere tenant at the will of the lord, but time fettered -the lord's will, until the principle was evolved that it must be -exercised according to the custom of the manor, for "custom" as Lord -Coke put it, "is the life of the manor," and so it came about that the -holder had fixity of tenure while he did his service. His position -steadily improved, the slave became free, the servile toil a money -payment, and now the court agenda merely register changes of title. -This account of the manor may serve for description, but does not -represent the real origin, which has not yet been exactly ascertained. -It was a fragment of Old England, with a lord usually of Norman race -as head, and the relations between head and members elaborated and -controlled by the theories and devices of the mediæval lawyer. As -manorial law was custom, old local usages were preserved unaltered; -thus, whilst the root idea of feudalism was that the eldest son should -inherit his father's land, and the manor itself did so descend, within -it an extraordinary diversity of usage obtained. By a custom similar -to that of Gavelkind (in Kent), the copyholder's estate was sometimes -parted equally among all his sons. In other places, Borough-English -prevailed, that is, the youngest son took everything, to the exclusion -of his elder brothers; nay, by an odd application of the maxim "better -late than never," a posthumous child ousted the brother already in -possession; or, again, the widow or widower inherited. When the tenant -died, the lord had a right to seize his best chattel (usually a beast), -this was called a Heriot, and it is yet here and there exacted. Many -customs are old Saxon, many customs were invented, or at any rate -twisted into fantastic rights from mere whim or a not very cleanly -sense of humour, but here one must often merely accept the fact, for to -try it by the rule of right reason were absurd. - -Most manors were held of the Crown, in return for services sometimes of -the oddest character; thus, Solomon De Campis (or Solomon At-Field) -had land in Kent on condition that, "as often as our lord the King -would cross the sea, the said Solomon and his heirs should go along -with him to hold his head on the sea, if it was needful;" and certain -jurors solemnly present on their oath that "the aforesaid Solomon fully -performed the aforesaid service." Our early kings provided against -every possible contingency. One tenant enjoyed land by the service -of holding the King's stirrup when he mounted his horse at Cambridge -Castle. Another must make _hastias_ in the King's kitchen on the day -of his coronation. The glossaries are dumb as to this mysterious -dish, though the learned darkly hint at haggis! Or was it "a certain -potage called the mess of _Giron_," which, being enriched with lard, -was called _Maupygernon_--which last is possibly mediæval Welsh for a -haggis? Thomas Bardolf, who died, lord of Addington, in 5 Edward III., -was pledged to compound three portions of this dainty dish against -Coronation Day, and serve them up smoking hot, one to the King, one -to his Grace of Canterbury, and the third "to whomsoever the King -would." Other manors were held on the tenure of presenting to the -King a white young brach ("lady the brach" of _King Lear_) with red -ears; of delivering a hundred herrings baked in twenty pasties; of -finding the King a penny for an oblation, whenever he came to hear -mass at Maplescamp, in Kent: gifts of roses, falcons, capons (which -last dainties your mediæval sovereign held in special favour), were -abundant. But how to riddle this one? The manor of Shrivenham, in -Berks, was held (_temp._ Edward III.) by the family of Becket, whose -head, whenever the King passed over a certain bridge in those parts, -must present himself with two white capons, whereto he directed the -royal attention in choice mediæval Latin, "Behold," he said, "my lord, -these two capons, which you shall have another time, but not now," -which pleasantry reminds one of the current vulgarism, "Will you have -it now, or wait till you get it?" The service of the Dymocks, owners of -Scrivelsby in Lincoln, as King's champions, and of the Duke of Norfolk, -as Earl Marshal of England, curious enough in themselves, are too -notorious for this crowded page. - -A few quaint tenures are of quite modern origin. Thus the honour of -Woodstock (an honour was a lordship over several manors: so "Waverley -Honour" in Scott's great romance) is held by the tenure of presenting -a banner each second of August at Windsor Castle; that being the -anniversary of Blenheim, fought in 1704; and on each 18th of June the -Duke of Wellington must likewise send to the same place, for the estate -of Strathfieldsay, a tri-coloured flag to commemorate Waterloo. The -last century legal antiquary pricked up his ears at a fine scandal -which he fondly imagined in connection with the manors of Poyle and -Catteshill, both near Guildford. Their holders were bound to provide -a certain number (twelve in one instance) of young women, called -_meretrices_, for the service of the royal court. Dry-as-dust shook -his solemn head, invented pimp-tenure (a "peculiarly odious kind of -tenure" he explained), and the forerunner of the man who writes to _The -Times_ (it was then to the _Gentleman's Magazine_) cracked some not -particularly choice jokes on the subject. A wider knowledge restored -the moral character of the King, his lords, and the much-slandered -young women, whose decent dust may now repose in peace. In mediæval -Latin the word was widely used for the female servant general or -special, and these were, it seems, neither more nor less than -laundry-maids. - -Manors of an early date were ofttimes held under other manors on -equally whimsical conditions. A snowball at summer and a red rose at -Christmas are extravagantly picturesque. A hawk was a common rent; but -in one case it was carried to the Earl of Huntingdon's house, by the -yielder, attended by his wife, three boys, three horses, and three -greyhounds; and these must be housed for forty days at the earl's -expense, while his countess must give the lady her second best gown. -Again, the tenant of Brindwood in Essex, upon every change, must come -with his wife, his man, and his maid, all a-horseback to the rectory, -"with his hawke on his fist and his greyhound in his slip"; he blows -three blasts with his horn, and then receives curious gifts, and -thereafter departeth. The lord of the Manor of Essington, in Stafford, -must bring a goose every New Year's Day to the head manor-house at -Hilton. Here he drives it about the fire, which Jack of Hilton blows -furiously, and (one regrets to add) most improperly. But Jack may be -forgiven, for he is but "an image of brass about twelve inches high," -whose description you read at length in old Thomas Blount, the great -recorder of all these mad pranks. - -The holding of Pusey in Berks by the Pusey Horn, gifted, it is said, -by King Canute, is well-known. Sir Philip de Somerville, knight, was -bound to hunt and capture the Earl of Lancaster's _greese_ (wild swine) -for my lord's larder upon St Peter's Day in August. This he did till -Holy-Rood Day, when he dined with the steward, and after dinner "he -shall kiss the porter and depart." This same Sir Philip de Somerville -held the Manor of Whychenover at half terms from the Earl on condition -that there ever hung in his hall one bacon flitch to be assigned to a -happy married couple yearly in Lent, after a variety of ceremonies like -those in the more famous case of Dunmow: the disposal of the flitch -there being likewise according to "the custom of the manor." - -In the customs that made up the inner life of the manor one finds a -diversity too great for classification. However, those old English -folk were a merry lot; with usages not sad nor savage, but having much -sensible joy in good meat and drink. At Baldock, in Hertfordshire, -the Customary Court was holden at dinner-time, whereto every baker and -vintner within the bounds must send bread and ale which the steward and -his jury "cam' to pree," and presently gave their verdict "if these -be wholesome for man's body or no." To the Manor of Hutton Conyers -there was attached a great common, where many townships pastured their -sheep; and the shepherd of each township "did fealty by bringing to the -Court a large apple pie, and a twopenny sweet cake." For refreshment, -"furmity and mustard, well mixed in an earthen pot, is placed before -the shepherds, which they sup with spoons provided by themselves, and -if any forget his spoon then, for so the customary law wills it, he -must lay him down upon his belly, and sup the furmity with his face to -the pot or dish." And the custom further permits the bystanders "to dip -his face into the furmity," to the great delight of all present. To -finer issues is the money provided by Magdalen College, Oxford, for -certain manors of theirs in Hampshire, _pro mulieribus hockantibus_, as -the dog Latin of the college accounts hath it. On Hock Day, annually, -"the women stop the ways with ropes, and pull passengers to them, -desiring something to be laid out in pious uses": the men having hocked -the women after the same fashion the day before. There are traces of -this usage further afield than Hampshire. Not less jovial were the -tenants of South Malling, in Kent, who were bound to pay scot-ale, -which fund they agreeably expended in "drink with the bedel of the Lord -Archbishop." The case of Stamford, in Lincoln, is noteworthy as showing -the origin of one peculiar custom. In the time of King John, William, -Earl Warren, was lord of the place. One day he saw from his castle wall -"two bulls fighting for a cow in the castle meadow;" their bellowing -attracted all the butcher's dogs in the place; and these, in company -with a host of rag-tag and bobtail, chased one of the champions in -and out the town till he went mad; all which so delighted Earl Warren, -that he forthwith gifted the common to the butchers on condition that -they provided a mad bull six weeks before Christmas Day, "for the -continuance of that sport for ever." - -It is impossible even to conjecture the origin of other customs. In -most manors, when a copy-holder died, his widow had in free-bench (or -what the common law calls dower) the whole or part of his lands. There -was one restriction: she must remain "sole and chaste." Yet, if she -forgot herself, her case was not altogether past praying for in the -Manor of Enborne in Berkshire. At the next Customary Court she appeared -strangely mounted upon a black ram, her face to the tail, the which -grasping in her hand, she recited, sure the merriest, maddest rhyme it -ever entered into the heart of man to conceive-- - - "Here I am - Riding upon a black ram"---- - -Alas, that the rest must be silence! The _Spectator_, greatly daring, -gives it in full; but that was as far back as November 1st, 1714. A -like custom ruled the Manor of Kilmersdon, in Somerset, where the -doggerel, if briefer and blunter, is at least equally gross. And here -one must refer to the _jus primæ noctis_, that lewd historic jest -which, in England at any rate, was ever a sheer delusion. True that on -the marriage of a villein's daughter a fine was paid to the lord, but -this was not to spare her blushes, but as compensation to him for the -loss of her services--inasmuch as she took the domicile of her husband. -Nay, the custom of the manor usually made for morality. There was a -fine called child-wit exacted on the birth of an illegitimate child, -sometimes from the infant's father, or, again, from the father of its -mother. Nay, in one or two places the unlucky lover forfeited all his -goods and chattels. On the other hand a curious privilege attached to -an oak in Knoll Wood in the Manor of Terley in Staffordshire: "In case -oath were made that the bastard was got within the umbrage or reach of -its boughs," neither spiritual nor temporal power had ought to say, and -the man got off scot free. - -The curious tenacity of the manorial custom is well shown in the case -of Pomber in Hampshire: the Annual Court, in accordance with immemorial -usage, must be held in the open air, but the inconvenience of this was -obviated by an immediate adjournment of the proceedings to the nearest -tavern. The records were not kept on parchment, but "on a piece of wood -called a tally, about three feet long and an inch and a half square, -furnished every day by the steward." In time these strange muniments -became worm-eaten and illegible; and, as occupying much needed room, -were thrown to the flames by the dozen. (It will be remembered that the -old Houses of Parliament were set on fire and destroyed on the burning -of the exchequer tallies, October 1834.) Some of the survivors were -produced as evidence in a case heard at Winchester, which fact provoked -"a counsellor on the opposite side of the question" to dub it "a wooden -cause." The obvious retort--that his was a wooden joke--seems lacking; -but possibly this gem of legal humour emanated from the Bench: how -often one has seen its like! - -Still stranger was the Lawless Court of the Honour of Raleigh: it -was held in the darkness of cockcrow; the steward and the suitors -(i.e., those bound to attend the Court) mumbled their words in scarce -audible fashion; candles, pens, ink, were all forbidden; for, as the -authorities vaguely put it, "they supply that office with a coal." To -ensure a punctual attendance, the suitor "forfeits to his lord double -his rent every hour he is absent." The learned Camden affirms it was -all to punish the aboriginal tenants for a conspiracy hatched in the -darkness of the night; again he sees in it a remnant of an old Teutonic -custom; and in the end you suspect that he knows as little as yourself. - -Then there was the white bull which the tenants of the monks of Bury -St Edmunds were bound by their leases to provide, that childless -women might present it to the shrine of the martyred king of East -Anglia; there was the fine called "thistletake," which the owner -of beasts crossing the common, and snatching at the "symbol dear," -must pay to the lord of the Manor of Halton; there are the "three -clove-gillieflowers" which the tenants of Hame in Surrey shall render -at the King's coronation; there are all sorts of minute details as to -house-bote and fire-bote, and common of piscary and turbary. One more -custom and we have done. In the time of Richard the Lion-heart, Randal -Blundeville, Earl of Chester, was on one occasion sore pressed by the -Flintshire Welsh. He summoned to his aid his constable of Cheshire, -one Roger Lacy, "for his fierceness surnamed Hell." It was fair-time -at Chester, and Roger, putting himself at the head of the motley crowd -marched off to his relief. The Welsh heard, saw, and bolted, and the -grateful earl there and then promulgated a charter granting to Roger -and his heirs for ever, "power over all fiddlers, lechers, light -ladies (the charter has a briefer and stronger term), and cobblers in -Chester." Under Henry VII. we find the then grantee exacting from the -minstrels (_inter alia_) "four flagons of wine and a lance," whilst -each of the aforesaid ladies must pay fourpence on the feast of St -John the Baptist. Under Elizabeth, various acts were aimed at rogues, -vagabonds, and sturdy beggars, but always with a saving provision as -to this Chester jurisdiction, and in later times the Vagrant Act (17 -George II., cap. 5) had a like reservation. - - - - -DEODANDS - - -At one time or other you have looked, one supposes, into that huge -collection of curiosities and horrors known as the State Trials. You -may possibly have noted the form of indictment in the murder cases; -and if so, one odd detail must have impressed you. Having set forth -the weapon used by the murderer, the document invariably goes on to -estimate its money value: for, having been instrumental in taking human -life, it was forfeit to the Crown, and it or its price had to be duly -accounted for. It was called a Deodand, but the name was applied to -many things besides arms used with malice aforethought. Thus, a man -died by misadventure: then was the material cause active or passive? -For instance, his end might come because a tree fell on him, or -because he fell from a tree, in either case the wood was a deodand, -and so forfeited. The name is from _Deo dandum_--a thing that must be -offered to God, and this because in early mediæval times the Church or -the poor had the ultimate benefit. - -For the origin of the custom one must go far back. In Hebrew, Greek, -and Roman legislation, the physical object that caused the loss of -human life was held accursed, and hence was destroyed or forfeited. -In England a thing became a deodand only when the coroner's jury (or -more rarely some other authority) had found it the cause of death; -which death, moreover, must happen within a year and a day of the -accident. If it did, the thing was seized, no matter where it was, or -who had it. In default of delivery the township was liable, and it -was the Sheriff's duty to get the value therefrom. If a man had _per -infortunium_ (or without blame) used the article, the jury found that -as a fact, and he was acquitted, or rather pardoned; but in strict -law his goods were forfeit as late as 1828. And not everything causing -death was a deodand. If a man fell into the water, was carried under a -mill-wheel, and perished, the wheel was forfeit but not the mill. The -distinction was sometimes difficult. Here are two actual examples. A -cart and a waggon came into collision; the man in the cart was pitched -out under the waggon-wheels and died. The two vehicles, all they held, -the horses that drew them, were adjudged deodands, "because they all -moved _ad mortem_." Again, a ship was hauled up for repairs, toppled -over on a shipwright at work, and was declared forfeit. Your mediæval -lawyer was nothing if not subtle, and he soon raised doubts enough -to gravel a schoolman. He questioned if things fixed to the freehold -could become deodands. Suppose a man were ringing a church bell, and -the rope, getting twisted round his windpipe in some strange fashion, -choked the life out of him: how then? The rope seemed past praying -for, but what about the bell? The learned differed, yet all agreed that -if the timber holding the bell got loose, and came crashing down on the -sexton, the royal treasury, of clear right, pounced on rope, and bell, -and timber. How furiously, with what a wealth of legal learning and -invention, one fancies the utter barristers must have "mooted" those -fascinating points after supper in the halls of their ancient Inns! - -The decisions were hard to reconcile. Thus, in Edward the Third's time, -it was held that if a man fall to his death from his horse against the -trunk of a tree, the horse is forfeit, but not the tree. But in the -same reign a distinction was drawn. One William Daventry, a servant to -John Blaburgh, engaged in watering a horse, was grievously hurt. He was -carried to his master's house "_apud Fleet Street in suburbio London_", -and there at even he died. At first the horse was adjudged a deodand, -but Blaburgh got the inquisition quashed on the ground that the horse -had not thrown his rider. Again, if a lad under fourteen fell from a -cart and was killed, there was no deodand: as some opined, because the -masses might be dispensed with, in the case of one presumed sinless -from his tender age, and the proper end of deodands was to procure -masses; but others urged it was "because he was not of discretion to -look to himself." The further question--what possible difference this -could make--was not raised; for even a mediæval lawyer's speculation -must stop somewhere. But how if the slayer were a lad? A Cornish case, -_temp._ 1302, supplies an answer. Jack of Burton, a boy of twelve, had -a mind to draw the bow. He rigged up a target in a house, and shot -thereat from the outside. One arrow missed the mark, and, glancing off -a hook, transfixed a woman called Rose. Rose died forthwith, and Jack -fled in horror. It was held that _le Hoke_ was a deodand, but that the -boy, on account of his age, was no whit to blame, and (with a touch of -kindliness) a proclamation was made far and wide that he might return -in safety. In this connection one recalls the awkward misadventure of -Abbot, Archbishop of Canterbury, in the reign of James I., who, being -out a-hunting, killed, by pure accident, Peter Hawkins, his keeper. -He had many enemies, and all sorts of ecclesiastical and temporal -penalties were threatened: at least, it was said, let all his goods be -confiscate. But the King turned a deaf ear to these suggestions: he -comforted the unlucky prelate with kindly words, and a full pardon, -dated 26th September 1621, removed all possible danger from his -reverend person. - -If a man met his death afloat, there was deodand or no deodand as the -water was fresh or salt, for these rules had no force on the high -seas or in tidal rivers: because, said some, "there were so many -deaths at sea." "Nay," said others, "how forfeit the ocean?" "But at -least," it was replied, "one could take the ship"----but here again -speculation must stop. Although deodands first went to the Crown, and -were properly applied to pious or charitable uses, yet they were often -granted to lords of manors: so often, indeed, that one of the few -references to them in English literature--a couplet in Samuel Butler's -_Hudibras_--treats this as the general rule. - - "For love should, like a deodand, - Still fall to the owner of the land." - -This owner was not seldom exacting, and his claim was met in -characteristic English fashion. The coroner's jury returned the -value of the deodand at next to nothing, _e.g._, "a horse, value -three shillings," and the Court of "King's Bench" refused to disturb -the finding. Hence one absurdity balanced another, and the doctrine -was long defended. In 1820, Joseph Chitty, in his standard work on -_Prerogatives_, maintains that "the forfeiture is rational so far as it -strengthens the natural sensation of the mind at the sudden destruction -of human life." But in later years these mediæval ghosts began to -walk again to some purpose. In 1840 the London and Birmingham Railway -Company was amerced in £2000 as a deodand! Railway directors were no -doubt convinced that 9 and 10 Vic., c. 62, which in 1846 made an end -of the whole business, came not a day too soon. Had the law of twenty -years before that been restored, there might have been some warrant -for stripping those same directors of all their property after each -railway accident, and one shudders to think of the consequences had the -coroner's jury found the plant used not _per infortunium_. - -One thing must be added, many held that the instruments of a murder, -though forfeited to the Crown, were not, properly speaking, deodands, -and they quoted as illustration the curious case of one Rempston, -who forced his boat's crew to row under London Bridge _invitis corum -dentibus_ in dangerous weather. He was thrown out and drowned, and the -jury, it was said, brought in a verdict of _felo de se_, to save the -boat from forfeiture. But the weight of authority was emphatically -against this view. - - - - -THE LAW OF THE FOREST - - -"A stretch of land, thick planted with trees;" so you picture a -forest to yourself, but old English law held otherwise. There were -miles of woodland that were not forest at all, and acres of pasture -that were. John Manwood, the Elizabethan lawyer, still our chief -authority on the subject, defines it as "a certain territory of woody -grounds and fruitful pastures, privileged for wild beasts and fowls -of forest, chase, and warren, to rest and abide in under the safe -protection of the king." Such a preserve was exactly delimited, and -might contain villages, churches, and so forth, within its bounds, -as the New Forest does to-day. The king had certain rights over all, -yet it was mainly private property; nay, there might be spaces in it, -but not of it,--within its Bounds, but not within its Regard, as the -phrase ran,--and so exempt from its peculiar laws. Manwood gives a -picturesque, though quite erroneous derivation of the term: it was _For -Rest_ of the wild beasts; but a sounder etymology traces the word to -_foris_ (= outside), for that it was outside the jurisdiction of the -Common Law, and had codes, courts, and officers of its own. The whole -business was for centuries alike insult and wrong to the Commons of -England. - -Hunting was not merely the chief amusement of our early kings: it -was a necessary pursuit for the keeping down of the wild beasts -then a real danger to the fields and their cultivators. The Forest -Charter of Canute the Dane (dated 1016) is a myth; but it is certain -that, before the Conquest, the sovereign had a peculiar--howbeit, an -undefined--property in the woodland. The Conqueror, who, according -to the Saxon Chronicle, loved the tall deer as if he had been their -father, devastated far and wide to make the New Forest; and he and his -immediate successors punished hurt done to the deer with loss of life -or limb. The Great Charter contained provisions against this odious -abuse of power, and under Henry III. a special charter of the forest -enacted that no man should lose life or limb for killing deer, at the -same time that it disafforested (_i.e._, removed from the forest to -which they had been improperly joined) vast tracts of country. After -the New there was but one other forest made in England, that was the -land round Hampton Court, afforested under Henry VIII. by Act of -Parliament. - -An attempt to revive royal rights over the woodland hastened the fall -of Charles the First, and then the Commonwealth gave the forest system -its death-blow, though it was not till the time of George III. that the -great mass of enactments was formally repealed. A Court of Swainmote -lingers in the New Forest and elsewhere, and its officials, called -Verderers, albeit shorn of their ancient power and splendour, do -their quaint antics still; but by an odd, though happily not singular -inversion, those old popular wrongs are now become popular privileges; -Epping Forest, for instance, could never have become a public park -but for the Crown rights, and these same rights over the woodlands -throughout the country now yield an income which more than covers the -cost of the whole Civil List. Had the Crown looked more sharply to its -own, the profit to ourselves had been still vaster. - -The forest laws, however complex in detail, were all inspired by one -consistent idea--the preservation, to wit, of the king's venison. -Even under Edward I.'s comparatively humane rule the verderer held an -inquest upon a deer found dead in the Regard, just as the coroner did -upon a man's body, and the jury found how the creature came to its end. -The very arrows gleaned there were entered in the verderer's role. The -freeholder within that charmed ground might not fell his own timber -without leave, lest he should spoil the _Cover_: nor could he turn out -his goats to browse, for they would taint the pasture; whilst he must -feed his sheep in moderation, else he committed the grievous offence of -_surcharging_ the forest. - -The forest had a huge staff of officers. First was a multitude of -subordinates; foresters--who, if they kept ale-houses in the Regard, -and encouraged folk to drink therein, committed a special crime called -_Scotale_--agistors, woodwards, keepers, verminers, sub-verminers, and -what not. These haled trespassers before the Court of Attachments, -which was held every forty days. In command of them were the verderers, -constituting, with representatives from the forest townships, the Court -of Swainmote, which met thrice a year for (_inter alia_) the trial of -the more important offences. Judgment on its findings was given at -the Court of Justice Seat, held but once in the three years, under -the presidency of a Lord Chief Justice in Eyre of the Forest. There -were but two--one for the north, the other for the south of the Trent; -and inasmuch as this officer was commonly some great noble--"A man," -says my Lord Coke, with a touch of irony, "of greater dignity than of -knowledge of the laws of the forest"--some skilled professional folk -were joined with him in the commission. The last Court of Justice Seat -was held in 1670 by the Earl of Oxford. It was a mere form: the last -but one (in 1635) had created a fine pother by its exactions. - -Offences were either trespasses _in Vert_ or trespasses _in Venison_. -The Vert (= green) was of course the cover; and the destruction -thereof was called _Waste_, while _Assart_ was stubbling it up to make -ploughland: and _Purpestre_ (a most grievous business) was building on -or enclosing part of the forest. (As late as the reign of Charles I., -Sir Sampson Darnell was heavily fined for erecting a windmill on his -own ground in Windsor Chase). Moreover, Vert might be _Over Vert_ or -_Hault-Bois_, or it might be _Nether-Vert_ or _Sous-Bois_, according as -it was underwood or not; and in either case it was _Special Vert_ if -it bore fruit, such as pears, crabs, hips, and haws, whereon the deer -might feed. - -Venison, as lawyers understood it, was composed of Beasts of Forest--to -wit, the hart, the hind, the hare, the boar, and the wolf--and Beasts -of Chase. A Chase, which was like a park, but was not enclosed, might -be held by a subject; but every forest was likewise a chase and a -warren, and the beasts of chase were the buck, the doe, the martern, -and the roe. These were described with wondrous detail. The hart--"the -most stately beast which goeth on the earth, having as it were a -majesty both in its gait and countenance"--was in his first year a -Calf, in his second a Broket, in his third a Spayad, in his fourth a -Staggard, in his fifth a Stag, and in his sixth a Hart. If he escaped -the pursuit of king or queen he became a Hart Royal, which no subject -might molest. - -In 1194, Richard Coeur-de-Lion hunted a noble beast out of the forest -of Sherwood into Barnsdale in Yorkshire, and there losing him, made -proclamation "that no person should kill, hunt, or chase the said hart, -but that he might safely return into the forest again." An animal thus -honoured was called a Hart Royal Proclaimed, and in the 21st of King -Henry VII., a man was indicted for taking so precious a life, but the -case apparently went off for want of technical proof of proclamation. -Your precise woodman talked of a Bevy of roes, a Richesse of marterns, -a Lease of bucks. He said that a hart harboureth, whilst a buck -lodgeth, and a hare was seated. He dislodged the buck, but he started -the hare. He would tell you that the hart belloweth, the buck groaneth, -the boar freameth; and whilst the hart had a Tail, the roe had a -Single, the boar a Wreath, and the fox a Bush (not Brush be it noted) -or Holy Water Sprinkle. Their amours (_e.g._ a fox went to clicketing), -their young, their very excrements were dignified in a long array of -special terms, the divisions and subdivisions of the deers' antlers -being enough of themselves to gravel the tyro in woodcraft. - -The peace of those precious animals was elaborately safeguarded, and -it was specially forbidden "to haunt the forest" during the _Fence -Moneth_, which was fifteen days before and after Midsummer. Most -forests were surrounded by Purlieus, that is, territory which had -been disafforested. Officers called Rangers patrolled this debateable -territory to drive back the errant deer, and whilst the Purlieu-man -(namely, the freeholder therein) might hunt on his own lands, he must -call off his dogs if the beast once touched the forest. And every three -years there was a special Drift of the forest, which was a sort of -census of the venison. A man taken _With the Manner_ (Main Ouverte), -that is, in the act of doing for the deer, was attached without bail. -The offender might thus be caught red-handed in four ways:--(1) -in _Dog-Draw_ he was chasing a wounded beast with hounds; (2) in -_Stable-Stand_ he was drawing his bow in ambush; (3) in _Back-Bare_ he -was carrying off his quarry; (4) in _Bloudy-Hand_ he bore the red marks -of his spoil. Divers statutes put a yet keener edge upon the common -law, as that under Henry VII., whereby hunting in the forest at night -with painted vizards was made a felony. - -And what of the dogs? The forest freeholders might keep mastiffs for -the protection of home and homestead; but a Court of Regards was held -every three years for their Lawing or Expeditation. Thereat your -mastiff was made to place one of his paws upon a billet of wood, "then -one with a mallet, setting a chisel of three inches broad upon the -three claws of his forefoot, at one blow doth smite them clean off." -Other dogs of any size were summarily banished the precincts. - -Royalty was ever jealous of these rights. A Fee-buck and a Fee-doe were -allotted to every verderer yearly (but these were but wages in kind); -and every lord of Parliament going or returning through the forest, on -summons from the king, might take one or two beasts, but if no forester -was at hand, he must sound his horn, lest the kill might seem done in -secret. But all the king's horses and all the king's men could not -quench English love of sport. Robin Hood and his merry band are but -the glorified types of a very multitude who chased the deer night and -day, for the forest stretched mile after mile over hill and dale, and -the tall deer were fair to look on, and the taste of their flesh was as -sweet to the wanderer and the outlaw as to the noble or the monarch; -and the law, albeit cruel, was weak, and a touch of danger but gave -zest to the pursuit. To take a later instance, was not Shakespeare -himself the most illustrious of poachers? Not on such rovers but -on the poor hard-working folk within the Regard did the forest laws -press with cruel weight, and yet old Manwood highly extols their sweet -reasonableness--"The king," he says, "wearied with his anxious care for -the weal of his subjects, is given by law these forests that he may -delight his eye at sight of the vert, and mind and body by the hunting -of the wild beasts," and so he finds it in his heart to regret that in -his day the forests were somewhat diminished. And since the sovereign's -good is now the peoples' good, we may agree with him, though not for -the same reason. - - - - -PAR NOBILE FRATRUM - -JOHN DOE AND RICHARD ROE - - -Old English law being full of fictions, had pressing need ever and anon -of imaginary characters to play imaginary parts. Sometimes a name was -picked at random from the street, and Smith, you hear without surprise, -was in great request, or, as those shadows came and went in couples, -you find Richard Smith as often as not paired with William Styles. -But your ancient scribe lusted after quaintness. He loved a jingle, -so names like John Den and Richard Fen--rare in actual life--peopled -his parchment, and strove for mastery in his mock combats. But his -prime favourites were Doe and Roe, nor would he raise Den or Fen or -any other ghost, excepting he had need of more than two. Here is a -simple instance of their use. In early times a man who commenced an -action had to give surety that he would go on with it; nowadays, if -he discontinue, he must pay the costs of the other side, but costs, -incredible as it may sound, were not always the necessary shadow, or -perhaps the substance, of law; and hence the need for the pledge. Under -Edward III. the practice went out of use, but the form of it, as legal -forms are apt to do, lingered on for centuries in this style:-- - - _Pledges of Prosecution_ { JOHN DOE. - { RICHARD ROE. - -In the old Action of Ejectment the pair were most active. So strange -were their gambols that even the lay world was impressed. In the early -years of Victoria John and Richard were common butts of popular satire. -Nothing seemed more gratuitous, more idly superfluous; but, turn to -their history, and you find how important and how serviceable were the -parts they once played. - -One must begin far back. In early feudal times the cultivator of -another's land was either a serf or a person of no importance, holding -at his lord's will. The tenant's position improved with the times, -leases were granted, and if their conditions were broken, a Writ of -Covenant, as the form of action was called, secured him in possession, -and gave him damages for his wrongs. But this action lay, as the -technical term is, between the original parties alone; so that if he -were turned out by a complete stranger, or by a person claiming through -another grant of the same landlord, his remedy was merely pecuniary. In -the time of Henry III. a writ was invented giving him full protection -against anyone interfering under colour of another lease from his lord: -but the case of an Ouster (or dispossession) by an utter stranger -was not adequately provided for until the beginning of Edward III.'s -reign, when the writ of _Ejectio Firmæ_, or ejectment, was adapted -from the proceeding in trespass. It called upon the wrong-doer of -every species to show why, "with force and arms," he had entered on -and taken possession of the plaintiff's land. But, again, the result -was only money damages: so that he was driven for relief to the -equitable jurisdiction of the Chancellor, who, by injunctions and so -forth, secured him in, or restored him to, possession of the very land -itself. Presently the Common Law Courts took it ill that so much of -their legitimate business should go elsewhere; and, at the end of the -fifteenth century, they allowed the term itself, as well as damages for -the Ouster, to be recovered under a Writ of Ejectment, and this remedy -was held proper against every species of wrong-doer. - -And if, not the tenant, but the landlord himself, were deprived of his -property? or, if anyone not in possession claimed a piece of land as -his freehold? These forms of procedure were not available, since they -were personal actions, and a claimant to the freehold must proceed -by a real action. These last were in early times the most important -of all. But their forms were numerous and varied (the assizes of -_morte d'ancestor_ and _novel disseisin_, as they were called in old -law French, were two of the best known), and their cumbersome and -complicated technicalities were cause of much expense, irritation, -and delay. At last it occurred to some ingenious, though forgotten, -jurist so to twist this Writ of Ejectment, which had all the last -improvements, as to make it available in an action for the recovery -of the freehold. That was done in this way. A. was (let us suppose) -the legal and rightful owner of an estate occupied in fact by B.; -he entered on the land with C., to whom he, then and there, signed, -sealed, and delivered a lease for the property in question; to them -so engaged entered B., attracted by their manoeuvring, and speedily -kicked both into the boundary ditch. Here were all the materials -for the action of ejectment, since C. might truly declare himself -dispossessed _vi et armis_ by B. from land whereof he held a lease from -A. In this action the main point evidently was: Had A. a right to -grant C. the lease? In other words, was A. the real owner of the land? -If the jury said "Yes," then judgment for possession followed for C., -who, being merely the nominee of A., forthwith passed the property over -to him. Improvements were speedily suggested. Actual ejection was like -to prove unpleasant, so A. and C., instead of ostentatiously soliciting -B.'s attention, took with them a confederate D., who, in a friendly -and affable manner, performed the function of a chucker-out, and this -casual ejector (as they named him) was made nominal defendant in the -action wherein C. was nominal plaintiff. Lest B. should be condemned -unheard, it was provided that the casual ejector must give him notice -of the proceedings, whereupon he was let in to defend in place of D. -This device was a brilliant practical success. Real actions pure and -simple fell speedily into disuse, though it was not till 1833 that, -with a few exceptions further tampered with in 1860, they were legally -abolished. - -The Commonwealth was a time of legal as well as political change. -The Lord Protector had, with quaint emphasis, described the Court of -Chancery as "an ungodly jumble," and Rolle, his Lord Chief Justice -of the Upper Bench, before and since known as the King's Bench, laid -violent hands on the action of ejectment. "What," urged he in effect, -"was the use of actual entry, lease and ouster? Let all be held as -done: so that the Court may apply itself at once to the real question -at issue." Finally, the action was in name _Doe_ against _Roe_, but -the writ as a mere form was suppressed, and the first step was the -declaration and notice to appear, both served on the real defendant or -his tenant. The declaration stated that the land in question had been -demised by A. (the real claimant) to John Doe; but that Richard Roe had -entered thereon by force and arms and ejected him, "to the great damage -of the said John Doe, and against the peace of our Lord the now King;" -and that therefore he brought this action. To this there was appended -a letter, signed "your loving friend Richard Roe," addressed to B., -the real defendant, and informing him that the sender, hearing that he -claimed the land, must now tell him that he (Richard), being sued "as -a casual ejector only, and having no title to the same," he advised -him (B.) to enter appearance as defendant, "otherwise I shall suffer -judgment therein to be entered against me by default, and you will be -turned out of possession." Now, to succeed in his action, the plaintiff -must clearly prove four things--Title, Lease, Entry, and Ouster; and -the three last he could not do, since they never happened. This little -difficulty was got over by a consent rule: the Courts allowed B. to -take Richard Roe's place as defendant, only on condition that he would -confess those three things to have happened which never did happen: -whereupon the real question of title alone remained. - -So strangely had this action varied from its first use--which was to -recover damages for wrongful possession of land--that in the result -these were nominally estimated at a shilling; and if A. really wished -to make B. disgorge the spoils of possession, he sued him again for -Mesne Profits. Although the action was nominally "_Doe_ against _Roe_," -the cases are usually cited as "_Doe on the demise of A._" (the real -plaintiff) "against B." (the real defendant), and whilst John and -Richard were the favourite styles, we have occasionally "_Good Title_ -against _Bad Title_": a comically impudent begging of the question -at issue. If the outside public mocked these venerable figures, _par -nobile fratrum_, the suitor did so at his peril. A certain Unitt -(_temp._ George I.), being served with a copy of a Declaration in -Ejectment, "pronounced contemptuous words on the delivery of it," and -the judges in solemn conclave held that he was in contempt, and was -deserving of punishment therefor. So the masque of shadows went on -till 1852, when the Common Law Procedure Act removed an obstacle which -lawyers had walked round for centuries, and consigned John Doe and -Richard Roe to that limbo where so much legal rubbish lies buried under -ever-thickening clouds of dust. - - - - -SANCTUARY - - -Your old-world lawyer was an ardent, if uncritical, antiquary. He -began at the beginning, and where facts ran short his fancy filled -up the blank. In discussing Sanctuary he started with the biblical -cities of refuge. He had something to say of Romulus and the foundation -of Rome. Geoffrey of Monmouth supplied him with the name of a -sovereign--Dunwallo Molmutius to wit--who flourished in Druidical -Britain (B.C. 500 it was said), under whom cities and even -ploughs were arks of refuge for the despairing fugitive. It might have -been objected that the ancient Britons had neither ploughs nor cities; -but such criticism was not yet in the land. We touch firmer ground in -the centuries immediately preceding the Conquest. In early English -legislation churches safeguarded the criminal from hasty vengeance, -and so allowed time to settle the money compensation payable for -his offence. Sanctuary was among the privileges that the Conqueror -conferred upon his foundation of Battle Abbey--one of many cases -wherefrom the Norman lawyers built up a system for mediæval England. - -That system was not always consistent or clear, but its main outlines -were as follows:--sanctuaries were of two kinds--general, as all -churches and churchyards; special, as St Martin's Le Grand and -Westminster. No doubt these last had originally also a religious -sanction. Such places were twice consecrate: Pope and King, the Canon -and the Common Law united in their favour. They protected felons, but -not those guilty of sacrilege or (some held) of treason. They were not -properly for debtors, whose reception was nevertheless justified by -an ingenious quibble. Imprisonment might endanger life, and therefore -(so the learned argued) the runaway debtor must be received. A man -took sanctuary thus--Having stricken (let us say) his fellow, he fled -to the cathedral and knocked (with how trembling a hand!) at the door -of the galilee. Over the north porch were two chambers where watchers -abode night and day. On the instant the door swung open, and had scarce -closed behind the fugitive when the galilee bell proclaimed to the -town that another life was safe from them that hunted. Then the prior -assigned him a gown of black cloth marked on the left shoulder with -the yellow cross of St Cuthbert, and therewith a narrow space where -he might lie secure of life, though ill at ease. So it was at Durham. -At Westminster the sanctuary man bore the cross keys for a badge, and -walked in doleful state before the abbot at procession times; and there -were, no doubt, countless variations. A phrase of the time reveals how -close the watch was now and again. Under Edward II. it was complained -that the sanctuary man might not remove so much as a step beyond -the precincts, _causâ superflui deponendi_, without being seized and -haled to prison. He was fed and lodged in some rough sort for forty -days, within which time he must confess his crime before the coroner -at the churchyard gate, and so constitute himself the king's felon. -Then he swore to abjure the realm. The coroner assigned him a port of -embarcation (chosen by himself), whither he must hasten with bare head, -carrying in his hand a cross, not departing, save in direst need, from -the King's highway. He might tarry on the shore but a single ebb and -flow of the tide, unless it were impossible to come by a ship, in which -case he must wade up to his knees in the sea every day. He was thus -protected for another forty days, when, if he could not find passage, -he returned whence he came, to try his luck elsewhere. - -He who refused to confess and abjure was not driven forth, but if, -after much spiritual admonition, he still refused to conform, he had -neither meat nor drink given him, and so was ended, if not mended. -A man unjustly deprived of sanctuary could plead the right before -his judges. It was a declinatory plea, and must be urged before he -answered as to his guilt or innocence; it availed him nothing to do -so after, for he was strung up forthwith. This system, however harsh, -had two very plain advantages. It was a short and easy method with a -rascal, and it powerfully made for scientific accuracy in pleading. If -a fugitive were caught and condemned ere he "took Westminster," as the -town phrase ran, it was no advantage for him to escape on the way to -execution, inasmuch as he was promptly haled forth to the gallows. A -curious case in the eighth of Edward II. perplexed the ancient student. -A woman was condemned to death, but a jury of matrons had no doubt -as to her condition, and she was reprieved. She escaped to sanctuary -before the arrival of the hangman's cart, and when the gaoler dragged -her out, the judges bade him put her back again, whereat the learned -shook their heads, opining that hard cases make bad law, and the jade -should have swung like other folk. - -On the whole the privilege was strictly respected. For instance, the -King's justices were wont to hold session in St Martin's Gate. They -sat on the very border. The accused were placed on the other side of -the street; a channel ran between them and their judges, and if they -once got across _that_ they claimed sanctuary, and all proceedings -against them were annulled. And one sees the reason why Perkin Warbeck -took such care "to squint one eye upon the crown and the other on the -Sanctuary" (as Bacon curiously phrases it); yet the great case of -Beckett is there to show that nothing was absolutely sacred in these -violent years. Nor does it stand alone. In 1191, Jeffrey, Archbishop -of York, and son of Henry II., was seized at the altar of St Martin's -Priory, Dover; and dragged, episcopal robes and all, through dirty -streets to the Castle: this, too, by order of William Longchamp, Bishop -of Ely, and Papal Legate. In 1378, Archbishop Sudbury complained in -Parliament that one Robert Hawley had been slain at the high altar even -while the priest was saying a mass. It was rumoured indeed that one -Thurstian, a Knight, chasing a sanctuary man with drawn sword, was of a -sudden stricken with grievous ailments. But this and other like stories -did not deter the citizens of London (_circa_ 1349) from assembling -at supper time in a great crowd, and dragging forth a soldier who had -escaped on the way from Newgate to Guildhall, where he was being taken -for trial. In another case (_temp._ Henry VI.), where a youth had taken -sanctuary after having foully slain a kind mistress, the good women -about St Martin's broke in and despatched him with their distaffs. Of -those who took sanctuary to good purpose the most famous was Elizabeth, -widow of Edward IV., who, in 1471, registered herself a sanctuary -woman in Westminster, and there sat, in Sir Thomas More's phrase, "Alow -in the rushes." But you have read the tragic story in Shakespeare. And -in a later age "beastly Skelton" (as Pope will have him), from that -same Westminster safely lampooned the mighty Wolsey, though for that he -needs must live and die there. - -To catalogue the evils of the sanctuary system were to show lack of -historical sympathy, nay, even of humour. The former days were not as -these; it had its place with the shrine and the pilgrimage, the knight -errant, and the trial by ordeal in the strange economy of a vanished -world. As the times grew modern its practical inconvenience was felt -for the first time. Yet the occasion of the first assault on the -privilege of sanctuary was one where the benefits were conspicuous, -and the assailant had the worst of motives. It was the case just noted -of Edward IV.'s widow; she had the young Duke of York as yet safe -with her. Her enemies were at a loss for the moment, and Buckingham, -then the sworn ally of Richard of Gloucester, took occasion in the -Privy Council to attack her place of refuge. "There were two chief -plague-spots in London," he snarled: "one at the elbows of the city -(Westminster), the other in the very bowels thereof (St Martin's le -Grand). These places were the refuge of theeves, murtherers, and -malitious, heynous traytors! nay," he added, "men's wives ran hither -with their husbands' plate, and say they dare not abide their husbands -for beating," with more to the same effect. Had not Elizabeth yielded, -Westminster might have witnessed a violation as affecting as that of -Canterbury. - -Under Henry VIII. the old order was broken up, and sanctuary law, -like much else, was changed and amended again and again. First, all -special places save Wells, Westminster, and six others, lost the -privilege. Divers classes of criminals --as traitors, and pirates -(and afterwards) Egyptians--were formally rendered incapable of its -enjoyment. Before the sanctuary man abjured the realm he was burned -on the crown of the thumb "with the signe of an A," and if he did not -depart on the instant, he had no further protection. But it occurred to -over-anxious legislators that such a fugitive might carry beyond seas -precious hints of the mysteries of trade or politics, or that, making -as if for the nearest port, he might but proceed to infest another -place. So he was ordered to abjure the liberty of the realm, but not -the realm itself; and being branded, was confined under a governor in -one or other of the sanctuaries. Whenever he ventured forth--as he -might in the daytime--he must wear the prescribed badge of the refuge. -He dare carry no weapon save a meat-knife, and that but at meal-times. -He must likewise answer to the daily roll-call. If he committed another -felony--and crimes done _sub spe redeundi_ had been a sore grievance -of late--he was to lose his rights. The governor was empowered to -hold courts for debt and minor offences within his bounds. And so "the -sanctuary person abjured," as the Tudor lawyers phrased him, spent the -last days of his evil life. I need not dwell on minor tinkerings of the -system under Henry's children. In 1623 the Statute 21 James I., c. 28, -s. 7 made a legal end of the right of sanctuary. - -The last of our story is not yet. Certain places still assumed the -right of giving shelter against civil process. When the bailiffs -invaded the liberty, the whole population forthwith set on, and -pommelled them so lustily that they were fortunate if they escaped -sound in limb. The precincts of Whitefriars and the Savoy were -the worst places in London. The first, renowned in slang, nay, in -literature, as Alsatia, because (some explained) it neighboured the -Temple on the East, as Alsace did France, was a base and villainous -Bohemia. Ram Alley (now Mitre Court), a local Lombard Street, Salisbury -Court (now Salisbury Square) were its chief ways, though probably -all between Fleet Street and the river, which was not the Temple, -held of this lawless republic. A bully or bravo, or squire of Alsatia -was a cant name for a penniless and violent fellow of the time. He is -pictured by Otway in his _Soldier's Fortune_ with flopping hat pinned -up on one side, with a tawdry weather-beaten peruke, dirty linen, and -a long scandalous iron sword jangling at his heels. The sheriff with -the _posse comitatus_ did on occasion raid Alsatia, but his prey, if -too weak to fight, had ever timely warning to escape by land or water -to some other like burrow. _The Fortunes of Nigel_ tells as much of the -place as the general cares to know, and there is much curious matter -mined out by the zealous antiquary as to other like places of refuge -in the capital. Thus Fullwood's, sometime Fuller's Rents, was related -to Gray's Inn as Alsatia to the Temple. In 1673 the gentlemen of that -ancient house so far forgot themselves as to engage in "pumping" -some bailiffs who attempted to take goods from out the Rents upon an -execution. "They were charged with a body of thirty lusty bailiffs," -and a "strong ryot" ensued. Possibly they recollected that their most -illustrious fellow-member, "broad-browed Verulam," had taken refuge -there some sixty years before, a circumstance which gave my Lord Coke -occasion to "gall the kibe"--as indeed he never lost any chance to -do--of his great contemporary. Then there was the mint in Southwark, -whereto an ex-poet laureate, "poor Nahum Tate," as Dr. Johnson calls -him, was driven by extreme poverty. Pope's cruel satire pictures it -half Grub Street half Bedlam, the last refuge of the hack and the -poetaster. The Clink and Deadman's place are now forgotten, whilst -Baldwin's Gardens and the Minories have a more commonplace reputation. - -About a century after James's Act, Parliament again interfered, and -professed to strip the "pretended privileged places" of every shred -of exemption, but it required two other statutes, the 9 Geo. I. c. -28, 1722, and the 11 Geo. I. c. 22, 1724, to make the law's process as -effectual there as elsewhere. - - - - -TRIAL BY ORDEAL - - -Before the Conquest, and for long after, local justice in England was -administered by two courts--that of the Hundred and that of the Shire. -The first nominally consisted of the freeholders of the district, -but the real business was done by a Committee of Twelve. The second -was made up of the chief men of the district, and representatives -from each township; but here, again, the work was left to a select -few. If a man were charged with (say) theft before either court, he -was tried in a fashion vastly different from that obtaining to-day. -The complainant was sworn on the holy relics: "By the Lord I accuse -not this man either for hatred, or for envy, or for unlawful lust of -gain." This solemn accusation made out a _primâ facie_ case against -the suspect, who instantly rebutted oath with oath. "By the Lord I -am guiltless, both in deed and in counsel of this charge." Then he -produced twelve compurgators, who swore by the Lord, "The oath is clean -and unperjured which this man hath sworn"; then the prisoner went free. -These compurgators were witnesses to character. Their testimony had -no reference to the particular facts of the case; they simply alleged -their belief in accused's innocence, but sometimes their oath "burst" -(as the curious technical phrase ran), that is, he could not find -compurgators, or those he produced said little good of him; or he was -a stranger of whom nothing was known; or a Welshman whose veracity has -never been an article of faith; or the accused was caught with his -booty; or was a woman; or the charge was peculiarly odious, as treason, -or witchcraft; then in all these cases there was an appeal to the -_Judicium Dei_, the Creator was called upon to prove beyond dispute the -guilt or innocence of the accused. - -Trial by Ordeal was more ancient than the Church itself. There are -traces of it in the Old Testament; it is discussed in great detail in -the Laws of Manu; a famous passage in the _Antigone_ (verses 264-267) -reveals it as well known to the Greeks, and before Augustine came, or -St Columba preached, it prevailed in some form or other in Britain. -Yet the higher ecclesiastical powers continually thundered against it, -and finally brought about its disuse. There were several varieties, -but many forms were common to all. First, there was the ordeal of -cold water, chiefly reserved for the baser fellow. As a preliminary -the accused submitted to a fast of three days, during which he was -watched by a priest, then he was taken to church to hear Mass; and was -adjured by Father, Son, and Holy Ghost, by the gospels and relics of -the saints, by everything held most sacred, not to partake of communion -if he were guilty. Next came the _adjuratio aquæ_, wherein the water -was enjoined to cast him forth if he were guilty, but to receive him -into its depths if innocent. And now, having been stripped, he kissed -the Book and the Cross, was sprinkled with holy water and was cast in, -to float if he were guilty, to sink if he were not. But there was the -rub--how about death by suffocation? Sir James Stephen suggests that -it was all a mode of happy despatch! Or (one fancies) it might be an -elementary form of the famous verdict "not guilty, but don't do it -again," with the chance of doing it again effectually provided against. -On the other hand, a recipe for immersion in a thirteenth century MS. -of the Monastery of Becca reduces the proceedings to the level of -farce. The hands of the accused were tied, and a rope was put round his -waist; "and let a knot be made in the rope as high up as the longest -hair of the man's head will reach, and then in this way let him be -gently lowered into the water; and if he sinks down to the knot, let -him be pulled out as innocent; if not, let him be adjudged guilty." How -_not_ to sink under such conditions? The practice of testing witches -by throwing them, securely tied, into the nearest pond was clearly a -survival of this form of ordeal. - -In the ordeal by hot water the accused, plunging his hand to the wrist -in the boiling fluid, brought forth a stone suspended therein by a -cord. (This was the Single Ordeal, and it became the Triple when the -plunge was up to the elbow.) The arm was done up in bandages not to -be removed till after three days; if the scald had healed the man was -innocent, if it still festered he was guilty. In the ordeal by hot -iron, a piece of red-hot metal was carried a distance of nine feet; -it was then dropped and the hand was bandaged as already set forth. A -knight had to thrust his fist into a glowing gauntlet; another form -was a walk with naked feet over a sequence of red-hot ploughshares. We -have a picturesque circumstantial and absolutely untrustworthy monkish -account of how Emma, mother of Edward the Confessor, being suspected -of an all too intimate acquaintance with Alwyn, Bishop of Winchester, -underwent this trial. She took nine steps for herself and five for the -Bishop, fixing her eyes the while on heaven. "When shall we reach these -ploughshares?" queried she. How agreeable a surprise to find her little -promenade already past and done with! No need to swathe _her_ feet, the -red-hot iron had marked them not at all! - -The last mode was the _Corsnæd_, or Cursed Morsel--a piece of -barley-bread (or cheese), one ounce in weight. This "Creature of -Sanctified Bread" was adjured, in terms terrible enough to make the -sinner quake, to stick in the guilty throat, and cause the guilty jaws -to be clenched and locked up. If in spite of all it went softly down, -who dared to refuse belief in the man's innocence? It was chiefly -for the clergy, and from every point of view must have been the most -agreeable of the three, though a legend as untrustworthy as that of -Emma ascribes to it the death of Earl Godwin, father of Harold. As he -sat at meat with Edward the Confessor, the king brought up an old -scandal about his brother's murder, "May God cause this morsel to choke -me," passionately exclaimed the earl, "if I am guilty of the crime!" -Edward blessed the bread; Godwin made an effort to swallow, choked and -died. "Take away that dog," said the monarch in what would seem an -outburst of savage glee. This was on April 15th, 1053, thirteen years -before the Conquest. Godwin in truth died of a fit. It soon was the -policy of the monkish chroniclers to write down the national party of -which he had been the head, a fact which explains the fable were it -worth serious examination. More interesting to note the survival of -the rite in the still current rustic formula, "May this bit choke me -if I lie!" If the ordeal proved a man guilty, the punishment was fine, -death or outlawry, but even if he escaped, the Assize of Clarendon -(1164) ordered that, in certain cases, he should abjure the realm. By -that time compurgation was gone; in 1215 the Lateran Council issued a -solemn decree against Trial by Ordeal; and soon after it had vanished -from English law. There is a curious reference to it in the State -Trials as late as 1679. John Govan, a Jesuit priest, was indicted in -that year at the Old Bailey for an alleged share in the Popish Plot. -With some hesitation he claimed the right of Trial by Ordeal as an -ecclesiastical privilege of a thousand years' standing, but Scroggs and -North peremptorily refused to listen to his plea. "We have no such law -now," said the latter. Sir James Stephen assures us that the formula, -"By God and by my country," wherein, till 1827, a prisoner must answer -the question how he would be tried, sets forth a memory of it. - -Of the customs akin to Trial by Ordeal only one can find mention here. -It was held that if the murderer touched, nay, even approached, the -body of his victim, the wounds gushed forth blood, thus in _Richard the -Third_, "dead Henry's wounds" are seen "to open their congealed mouths -and bleed afresh" as Gloucester draws near the bier. And according to -one of the picturesque legends of English history, when Richard the -Lion-Heart encountered at Fontevrault his father's body, the blood -gushed from the nostrils of the dead king, a proceeding which, as -Richard's offence was at the worst but unkindness, showed a somewhat -excessive sensibility on the part of the royal clay. The oddest and -latest case of all is from Scotland. In 1688 Philip Stanfield was -tried for parricide at Edinburgh; one count of the indictment stated -how his father's body had bled at his sacrilegious touch. The Lord -Advocate, Sir George Mackenzie of Rosehaugh, the "Bluidy Mackenzie" -of covenanting legend and tradition, conducted the prosecution, and -philosophic and cultured jurist as he was, he yet dwelt with much -emphasis on the portentous sign. There was no lack of more satisfactory -if more commonplace evidence, and young Stanfield assuredly merited the -doom in the end meted out to him. - - - - -WAGER OF BATTLE - - -Judicial combat is a fascinating yet perplexing subject, having many -side-issues whereupon the writer must sternly refrain. The case -of David and Goliath was gravely urged (A.D. 867) as a -precedent to Pope Nicholas I., and by him disdainfully put aside. The -thing itself was unknown in Roman law, though the old legend of the -Horatii and Curatii was part of its lore. But it was of the essence -of chivalry, and the duel and the prize-fight were its legitimate -offspring. "Where the hazel grew," so Mr George Nelson, our chief -modern authority, picturesquely defines its region, but our attention -here must be limited to England. That it was _not_ with us before -the Conquest moves Bishop Stubbs to something of the scholar's mild -amazement. The Normans, it seems clear, brought it with them from -their continental home. A native accused of a serious crime by one of -the invaders was tried by ordeal of battle, but a Norman had choice of -the oath as well, and it was also used to decide which of the claimants -should have a disputed piece of land. After the legal reforms of Henry -II., it became an alternative proceeding in a limited class of actions. -These were the Writ of Right (the most solemn method of trying title -to land), accusations of murder, and treason. It had place only in -appeals, in actions, that is to say, brought not in the king's name, -but by an interested subject here called the Appellor, against whom -the accused or Appellee might offer to prove his innocence by his -body. The Appellor must accept the challenge unless he were maimed by -age or wound. Likewise he could "Oust the Battle" (_i.e._ prove this -mode of trial improper) if the accused were caught red-handed. The -parties exchanged gloves, and gave pledges or wads (_vadiare bellum_); -whence came Wager of Battle, afterwards the technical term for the -whole process. In civil cases, if the litigants came to terms, the -judge exacted a fine, called the Concord, while he who fought and lost -must pay the mulct of Recusancy. In criminal matters he who resisted -not till the stars shone forth was branded as Recreant or Craven and -was forthwith strung up, and all his goods were declared forfeit. The -Charters of Exemption purchased from overlord or king show how hateful -the system was to the old English citizen. Henry I. enacted for a -consideration that no Londoner should do battle, and in due course the -men of Winchester, Lincoln, and Northampton obtained the like privilege. - -The story of Leicester is worth the telling. In the time of Henry I. -Earl Robert of Mellant ruled the town. It chanced that two burghers, -Nicholas and Jeffrey, waged battle on a plea of land. For nine long -hours they mauled each other with varying fortune, when one of them -took to flight, and staggered, all unwitting, on the edge of a pit. -The other saw his danger, and remembered that they twain were kinsmen. -"'Ware o' the pit," he shouted; "turn back, lest thou fall therein." -The spectators so lustily roared their approval, that the Earl heard it -in his castle, and he, after due enquiry, granted that in time coming -twenty-four jurors of Leicester should determine all civic disputes. -One strange product of Trial by Combat was the Approver: a rascal who -turned king's evidence, and fought with his late companions. Sometimes -he accused other malefactors, and if he came off victor in five -combats he was released, and banished the country. This system fell -into gross abuse, for the Approver, greedy of freedom or hush-money, -appealed honest men right and left. In the chronicle of William Gregory -the Skinner (1456) we have an account of a duel fought by one Thomas -Whitehorne, a criminal, caught in the New Forest, and lodged in prison -at Winchester, where he remained for about three years, fighting ever -and anon. "And that fals and untrewe peler (= Appelar) hadde of the -Kynge every day 1d. ob." At last a proposed victim retorted the lie -in his throat, and said that "he wold prove hyt with hys handys and -spende hys lyfe and blode a-pone hys fals body." Then the judge "fulle -curtesly informed this sympylle man" that "he and the peler moste be -clothyed all in whyte schepys leter." Also each must have a stave of -green ash, three feet long, the point thereof "a horne of yryn i-made -lyke unto a rammy's horne;" and if these ash-plants broke, then they -"moste fight with hyr handys, fystys, naylys, tethe, fete, and leggys." -Moreover, they must strive fasting on the "moste sory and wrechyd -greene about the town;" but "Huyt ys to schamfulle to reherse alle -the condycyons of thys foule conflycte." And we must follow Gregory's -precept rather than his example. - -The Appellee, asking for inquiry as to his character, was reported -"a fyscher and tayler of crafte," and therewith the "trewyste laborer -and the moste gentellyte." The peler, with brazen insolence, offered -_his_ character for inspection. There was much dubiety as to where and -how he had lived when at large, but "Hange uppe Thome Whythorne" was -the response of every reference he tendered. At last the day came. The -Appellee, as became an innocent man, told his beads, and prayed long -and earnestly, and wept full sore, and all present prayed for and with -him. The "fals peler" scoffed thereat. "Thou fals trayter," yelled -he; "why arte thou soo longe in fals bytter beleve?" The defendant's -sole answer was so lusty a thwack that his staff flew all to pieces. -Thereupon the peler's stave was taken away from _him_; "ande thenn they -wente togedyr by the neckys," so using teeth and fist, "that the lethyr -of clothing and fleshe was alle to rente in many placys of hyr bodys." -It fared ill at first with the "meke innocent." His opponent had him -down on the ground, and near choked the life out of him. But presently -the meek one got up on his knees, and (the combat not being under -Queensberry rules), "toke that fals peler by the nose with hys tethe, -and put hys thombe in hys yee, that the peler cryde owte ande prayde -hym of marcy, for he was fals unto God and unto hym." The peler's -subsequent record is of the briefest, but, one is thankful to add, of -the most edifying description. "And thenn he was confessyd and hanggyd, -of whose soule God ha' marcy." Amen. "_Victus est et susp_," so for -epitaph wrote the official scribe against his name. And the exchequer -parchments knew him and his "_1d. ob. per diem_" no more. - -The Champion, now but the shadow of a name, was a nobler offshoot of -the system. Originally a witness, he was finally indispensable in civil -cases wherein--for a legal reason not here to be discussed--the parties -themselves must not engage. He was the proper advocate for churchmen, -for women, and for the Crown; and his last appearance for royalty was -in 1820, at the coronation of George IV. The Dymocks have held the -manor of Scrivelsby in Lincolnshire for centuries by this tenure, and -possibly their representative claimed a part in the pageant on the -two subsequent occasions, but to have him ride up Westminster Hall in -full armour and clang his gauntlet on the floor (as he did of old) -would have savoured too much of Drury Lane pantomime for the taste of -a cynical age. The Champion's dress and bearing were minutely ordered. -His head (_e.g._) was shaven, but whether this was to give no hold to -his foe, or to fulfil some old superstition, is still in debate among -the learned. In the end he was usually a hireling, which fact may -very well have accentuated the absurdity of the system. At any rate, -towards the close of the thirteenth century it was only kept alive by -the approvers. Then Chivalry came with its Treason Duel, and by the -time of Richard II. the Chivalry Court was in full swing. Its forms, -mainly imported, were after this wise. Upon the accusation and the -exchange of gloves, time and place were assigned for the duel, and here -the lists were set and staked. There were two gates, and hard by each -a pavilion--one eastward for the appellant, and the other westward for -the defendant. To the south was the judge's seat; and right and left -were benches for the high-born, while the commons were made free of -the unenclosed field. Near the judge an altar was decked with relics; -and not far off there stood a gibbet and a scaffold. Men-at-arms were -stationed between the palisades. There were heralds in gay tabards, a -priest in full canonicals stood at the altar--but it were wearisome to -enumerate all the officials. - -The trial was held not less than forty days after the challenge; and -the time being come, the heralds demanded silence; and the appellant -was summoned three times by voice and by sound of trumpet. As he -marched forward he was addressed by the Constable, "Who art thou, and -wherefore comest thou armed to the door of these lists?" His answer -given, he was taken to his pavilion, and afterwards was made to swear -on the altar that his cause was just. The other did in like fashion. -Then the pavilions were replaced by chairs whereon the combatants might -take an occasional rest. Napkins holding a loaf and a bottle of water -were hung on opposite ends of the lists. The marshal cried three times -"_Laissez les aller_," and the pair went at it. Far better death than -defeat. If either yielded, the marshal cried "Hoo," to declare the -combat at an end. Then the wretch was taken to the scaffold on which -his shield was hung reversed, his sword was broken, and his spurs -hacked from his heels. He was now taken to the church where a mass for -the dead was sung over him, and at last he was haled to the gibbet -where the hangman claimed his prey. - -This is the form of judicial combat that caught the fancy of our great -writers. In Chaucer's _Knight's Tale_ there is the elaborate set to -between Palamon and Arcite. In Shakespeare's _Richard II._ there is -the fiasco of Norfolk and Hereford. In _Lear_ we have the fight to -the death between Edmund and Edgar, and "every schoolboy knows" The -Templar's duel in _Ivanhoe_. - -Chivalry passed, yet not the half-forgotten wager of battle. A claim so -to determine a civil dispute was made in 1571, to the great perplexity -of the lawyers. Elaborate preparations were made, but the case was -settled in other fashion. Under James I. bills were introduced into -Parliament to abolish it, but they fell through, and in 1774, at the -beginning of the North American troubles, when it was proposed to -punish the New Englanders by depriving them of the appeal of murder, -Dunning, afterwards Lord Ashburton, described it as that great pillar -of the Constitution. Burke concurred, and the motion was lost. Perhaps -they have it yet in the States, at least Dr Cooper, in editing, in -1857, the statutes at large of South Carolina, treats Wager of Battle -as an existing fact. In England the end came in dramatic fashion. In -May 1817 Mary Ashford--a young woman of Langley in Warwickshire, was -found drowned under suspicious circumstances. A certain Abram Thornton -was suspected of the murder; he was tried and acquitted, but there -was much evidence against him, and he had played so ill a part in a -horrid though vulgar tragedy that the relatives of the dead girl cast -about to carry the matter further. Now, an old act provided that no -acquittal by jury should bar an appeal of murder, so William Ashford, -Mary's brother, appealed Thornton in the Court of King's Bench. He -was attached, and when called upon pleaded "Not guilty, and am ready -to defend the same by my body." He then threw down his glove on the -floor of the Court. It was a curious turn; for no doubt men thought -that he would put himself upon the country, and stand a second trial by -jury. There was much legal argument (set forth at great length in the -reports of the time), for the prosecuting counsel tried hard to "oust -his battle," but to no purpose, and in the end Thornton was set free. -In 1819, two years after the drowning of Mary Ashford, the Appeal of -Murder Act (59 Geo. III. c. 46) abolished the last remnant of Wager of -Battle. - - - - -THE PRESS-GANG - - -Smollett, Galt, Marryatt, and the other naval novelists, not those -well-nigh forgotten Dry-as-dusts whose works encumber the back shelves -of our law libraries, are the authorities for the press-gang of popular -imagination. The sea-port invaded, the house surrounded at dead of -night by man-o'-war's men with stout cudgels, and by naval officers -with cutlasses; the able-bodied mariner knocked down _first_ and _then_ -bid stand in the king's name; the official shilling thrust into his -reluctant palm before he is hauled off in irons--who has not devoured -with joy this wild romance, with its tang of the sea, its humour and -rough frolic, the daring and exciting prelude to much more daring and -more exciting achievements? But how far can we trust these entertaining -authors? And what was the legal status of the press-gang? - -We are like to get nearest the truth in a law case with its official -documents and sifted evidence and considered decision. The trial of -one Alexander Broadfoot for the murder of one Calahan is the best -available. In the April of 1774 H.M.S. _Mortar_ lay at anchor off -Bristol. The captain held a warrant of impressment, but he could -delegate his authority only to a commissioned officer, whose name -must be inserted in his order; and the only one aboard was the -lieutenant. On the 25th the ship's boat was sent down Channel, _with -neither captain nor lieutenant_ to look for men. She had no luck till -evening, when she came across the _Bremen Factor_, a homeward bound -merchantman, still some leagues from port, but beating thitherward up -Channel. The man-o'-war's men having boarded her, were proceeding to -search the hold, when they were confronted by Broadfoot, the boatswain, -armed to the teeth. He demanded what they came for. "For you and -your comrades," was the plain and honest, though no doubt irritating -answer. "Keep back, I have a blunderbuss loaded with swan shot," said -Broadfoot, levelling his piece. The press-gang stopped. "Where is your -lieutenant?" he went on. (Evidently this boatswain knew a little of the -law.) "He is not far off," was the evasive answer, showing that the -man's acts and words had impressed his assailants. Did Broadfoot grasp -the fact that they were trespassers? At any rate, he let fly, killed -Calahan on the spot, and wounded two others. He was tried at Bristol, -and acquitted of the capital charge--for the action of the man-o'-war's -men was plainly irregular; but he was found guilty of manslaughter, for -that he had used more force than was necessary. Another case is that of -Robert Goldswain, a small freeholder at Marlow, in Bucks. In the March -of 1778 he was a bargeman on the Thames, engaged in carrying timber to -the king's yard; with a protection order from the Navy Board to him by -name so long as he should continue in that service. But these were -troubled times, the French had just declared for the revolted American -colonists and our war-ships were frightfully undermanned; so, on the -16th of March, the Admiralty fixed the next night for a general press -on the Thames, with direction to seize--despite protection orders--on -all sailors and watermen whatsoever, saving and excepting merchant -skippers and men exempted by special acts. Goldswain was in the net, -and was passed from ship to ship down to the Nore, where his captors -were overtaken by an order from the Court requiring a return to a writ -of Habeas Corpus issued on his behalf. Counsel's argument for the -Admiralty--that the device of first issuing protection orders to lure -sea and watering men from their lurking-places, and then pouncing on -them under the authority of a general press, was excellent--did not -commend itself to the Court, which, in the battle over poor Goldswain's -body, suspected some antagonism between the Admiralty and the Naval -Board. In the end my lords gave way, and Marlow received again her -ravished freeholder. - -During the strain and stress of our eighteenth century war-making, -when we had every need of seamen to man our battle-ships, and could -not afford the market price for them, there was much impressment, and -through frequent appeals to the courts the law on the subject was -exactly determined. It was a prerogative of the Crown, a remnant of -larger rights which at one time took in soldiers and ships, or their -equivalent in cash (Hampden's famous trial scarce needs mention); it -could not be justified (it was allowed) by reason, but only by public -necessity. On command of the king all sea and river-faring men were -liable to naval service in time of war. The right to impress was -founded on immemorial usage, for, though given by no statute, it was -recognised by many. It was so held on the authority of a case in Queen -Elizabeth's reign: the sole customary exception was a ferryman; but -merchant captains were in practice likewise allowed to go free. Only -in Charles I.'s reign, when all the Crown prerogatives were jealously -overhauled, was there any serious questioning of its legality, but it -was exercised by the Commonwealth as well as by the Monarchy. Given -up in fact some fifty years since, it has never been so in law. You -find in Horner's _Crown Practice_ (1844) a form of _Habeas Corpus ad -subjiciendum_ for impressed men, with the comment that it is little -needed now. - -Of the enormous number of commissions and statutes relating to -impressment, an example taken here and there must suffice. The acts -express amazement and virtuous indignation at mariners unwilling to -serve. One (_temp._ Henry VII.) sets forth that such as are chosen, -and have received their wages, shall, if they give leg-bail, be -amerced in double, and go to prison for a year--when they are caught. -Another (_temp._ Philip and Mary) reproves the Thames watermen who, -in pressing time, "do willingly and obstinately withdraw, hide, and -convey themselves into secret places and outcovers; and, after the -said time of pressing is o'erpassed, return to their employments." -After the Revolution an attempt was made to establish a naval reserve -by means of a voluntary register, and so do away with impressment, but -this was a complete failure. Then, to foster the coal and other trades, -certain exceptions were granted; and still later, sailors in outward -bound merchantmen were exempted because of the hardship inflicted on -their employers (the hardship of the sailor impressed in sight of port -after a long voyage was not considered). When a warship fell in with a -merchantman on the high seas she impressed what men she would. British -sailors found on board American vessels were hauled out forthwith, and -this was one cause of the War of 1812. - -Press-gang stories, more or less authentic, are numerous. Here are -samples which serve to show that the searchers did not nicely -discriminate between those who were and were not legally subject to -impressment. A well-dressed man was seized. He protested that he was -a gentleman of position. "The very boy we want," gleefully replied -his captors; "for we've such a set of topping blackguards aboard -the tender, that we wanted a gentleman to teach 'em manners." Sham -press-gangs for the black-mailing of honest citizens were common. In -one case a couple had given all their money to go free, when the real -gang coming up made booty of both parties, and had them aboard in no -time. The quarrymen at Denny Bowl, sixty strong, were heard to brag -in their cups what _they_ would do did the press-gang dare to molest -_them_, whereupon "three merry girls" got into breeches, put cockades -in their hats, took sword and pistol, and advanced, when the quarrymen -ran like hares. And to conclude, there is the legend of the gang that -raided "The Cock and Rummer" in Bow Street. They seized the cook. The -customers, fearing for their dinner, or themselves, rushed to the -rescue. Long the strife hung dubious, when the constable (he ought to -have been a Bow Street runner) stalked in. The gang, with a fine sense -of humour, let the cook go, seized _him_, and away at a great rate, -though not fast enough to get clear. - - - - -SUMPTUARY LAWS - - -"Act of Parliament" is a term apt to mislead. To-day it is enforced -by so powerful a machinery that practice conforms to precept; but in -mediæval England much law was dead letter. Statutes were often mere -admonitions; they expressed but an ideal, a pious intention. This was -specially true of the Sumptuary Laws, whereby the dress and food of -the king's subjects were nicely regulated. If you turn over a book of -costumes you find that man's attire has varied more than woman's. The -sorts and conditions of men were marked by rigid lines. This fact was -shown forth in their dress, and that again re-acted on their modes of -thought and habits of life. "Men's apparel," says Edmund Spenser, "is -commonly marked according to their condition, and their conditions -are often-times governed by their garment, for the person that is -gowned is by his gown put in mind of gravity, and also restrained from -lightness by the very unaptness of his Tweed." Of old time man's dress -was rich and varied, but how to catch its vanished effect? In Courts -of Justice there is still the splendid, if occasional, bravery of the -judge. See the same man in private, gaze on divinity disrobed, and the -disenchantment measures for you what is lost in the splendid garb of -other days. In mediæval Europe the Church first condemned a too ornate -appearance. Thus, under our early Norman Kings, long hair was much in -vogue. In 1104 Bishop Serlo, preaching before Henry I. and his Court -in Normandy, attacked this fashion roundly, compared his hearers to -"filthy goats," and moved them by his eloquence to tears of contrition. -He saw and seized that softer hour. Descending from the pulpit he then -and there clipped the polls of them that heard him till he must fain -sheath his shears for lack of argument. This rape of the locks was -followed by a royal edict against long hair. Alas! for this story. -Rochester Cathedral still bears the effigies of Henry and Maud his -queen; each is adorned even as Absalom, and Time, whilst it has mauled -their faces in cruel fashion, has with quaint irony preserved intact -those stone tresses. - -Two centuries pass ere the Sumptuary Laws proper begin. The 10 Edward -III. c. 3 (1336) ordered that no man was to have more than two courses -at dinner, nor more than two kinds of meat, with potage in each course; -but on eighteen holidays in the year the lieges might stuff at will. -Next Parliament common folk were forbidden to wear furs; but the 37 -Edward III. was the great session for such work, made needful (it was -thought) by the sudden increase of luxury from the plunder of the -French wars. Some half-dozen Acts prescribed to each rank, from peers -to ploughmen, its wear; nay, the very price of the stuff was fixed; -whilst all wives were to garb themselves according to their husbands' -means--a pious wish, repeated a century afterwards, in an Act of the -Scots James II. The veils of the baser sort were not to cost more than -12d. apiece: embroidery or silk was forbidden to servants, and these -were to eat of flesh or fish but once a day. Cloth merchants were to -make stuff enough, and shopkeepers to have stock enough, to supply -the anticipated demand. Such apparel as infringed the statute was -forfeit to the king. The knight's dress will serve for sample of what -was required. It was to be cloth of silver, with girdles reasonably -embellished with silver, and woollen cloth of the value of six marks -the piece. Under Richard II. monstrous sleeves were much affected. A -monkish scribe inveighs bitterly against these "pokys, like bag-pipes." -Some hung down to the knees; yea, even to the feet. Servants were as -bad as their masters! When potage is brought to table, "the sleeves -go into them and get the first taste." Nay, they are "devil's -receptacles," since anything stolen is safely lodged therein. And so a -statute of the time prohibited any man below a banneret from wearing -large hanging sleeves, open or closed. - -The fashion changed to _dagges_, a term explained by the 8th of Henry -IV., which forbade "gown or garment cut or slashed into pieces in the -form of letters, rose-leaves, and posies of various kinds, or any -such devices." The fantastic peaked shoes of the fifteenth century, -sometimes only held up by a chain from the girdle, were fair mark for -the lawgiver, and under Edward IV. no less person than a lord was -allowed peaks exceeding two inches. An Act in the same reign banned -the costly head-gear of women. Henry VIII. saw to men's garb as well -as their beliefs. His first Parliament forbade costly apparel, and -there is preserved in the Record Office a letter from Wolsey enclosing -to the King, at his request, the Act of Apparel, with an abstract, -for examination and correction. Exemptions were not unknown: thus, -in 1517, Henry Conway of Bermondsey obtained license to wear "camlet, -velvet, and sarcenet, satin and damask, of green, black, or russet -colour in his clothing." Under Queen Mary common folk who wore silk on -"hat, bonnet, girdle, scabbard, hose, shoes, or spur-leathers," were -grievously amerced. Under Elizabeth the regulations were numberless: -thus there is an act for "uttering of caps, and for true making of -hats and caps." No one was to engage in this business unless he had -been "a prentice or covenant servant" by the space of seven years. No -one under the degree of knight was to wear a cap of velvet. But these -were not pure sumptuary regulations: they were for protection of home -industries. A statute of the previous reign had declared that no man -was to buy more than twelve hats or caps, be it out of this realm; -and a previous Act of Elizabeth had strangely provided that if anyone -sold foreign apparel on credit for longer than eight days to persons -not having £3000 a year he should be without legal remedy against his -debtor. - -On the 15th June 1574, an elaborate proclamation complained of -"the wasting and undoying of a great number of young gentlemen" -who were "allured by the vayne shewe of those thyngs." A schedule -was appended in which the costumes prescribed for all sorts and -conditions of men were set forth. In the Star Chamber on June 12th, -1600, my Lord Keeper gravely admonished the judges to look to all -sorts of abuses--"Solicitors and pettifoggers," "Gentlemen that leave -hospitality and housekeeping and hide in cities and borough towns," -"Masterless men that live by their sword and their wit, meddlers in -princes' matters and libellers," and last, but not least, "to the -vanity and excess of woman's apparel." All was in vain, if we are to -believe the fierce invective of Stubb's _Anatomie of Abuses_. "There -is now," he groans, "such a confused mingle-mangle of apparel, and -such preposterous excess thereof as every one is permitted to flaunt -it out in whatever apparel he listeth himself, or can get by any -kind of means." It was horrible to hear that shirts were sold at £10 -a piece, and "it is a small matter now to bestow twenty nobles, ten -pound, twenty pound, forty pound, yea, a hundred pound, of one pair -of breeches (God be merciful to us!)" After this aught else were -anti-climax, and so for the women he can only say they were worse than -the men. A new order of things came in with the next reign, for the act -Jac. I. c. 25, sec. 45, repealed at one stroke all statutes against -apparel. In Scotland they kept up the game some time longer, but one -need not pursue the subject there, though a curious statute of the -Scots James II. (1457) must have a word. It provided that "na woman cum -to Kirk nor mercat with her face mussled that she may nocht be kenn'd -under the pain of escheit of the curchie" (forfeiture of the hood). In -Ireland there was a law (says Spenser) which "forbiddeth any to weare -theyre beardes on the upper lip and none under the chinn:" another -"which putteth away saffron shirtes and smockes," and so forth; but -these were of English importation. - -In the North American colonies sumptuary legislation has a history of -its own. In Massachusetts an edict of September 1639, declaims against -the "much waste of the good creatures (not the tipplers, but the -tipple) by the vain drinking of healths," which practice is straightway -forbidden. Excess or bravery of apparel is condemned, and no one is -to wear a dress "with any lace on it, silver, gold silk, or thread -under the penalty of forfeiture." Again, it is provided that children -or servants are not to have ornamental apparel. Here is an individual -case. Robert Coles, in March 1634, for drunkenness is disfranchised -and condemned for a whole year to "wear about his neck, and so to hang -upon his outward garment a D made of red cloth and set upon white"--a -very unromantic scarlet letter! These things, too, passed away, but -in the Maine Liquor Law of 1851, one traces the revival of the old -idea. In England the thing lived not again. Under the Commonwealth -public opinion enforced a "sober garb." Charles II. had some idea of -a national costume, but he was too wise or too careless to attempt -legislation. In 1747 the wearing of the Highland dress was forbidden, -but that was policy, just as centuries before the Jews had a special -garb ordained for them. Also a number of laws were passed to promote -home manufactures: so under Charles I. and Charles II. the entry of -foreign bone-lace was prohibited, though the second monarch granted -licence for importing same to John Eaton for the use of the royal -family. It would also serve, he coolly remarked, for patterns. There is -one other curious example. Too much foreign linen was used, and so the -30th of Charles II. c. 3 ordered the dead (save the plague-stricken) -to be buried in woollen shrouds. The relatives must file an affidavit -with the clergyman as to this, and £5 was the fine for _him_ if he -neglected his part. Did the vision of that unseemly shroud really -disturb poor Nance Oldfield's last moments, as Pope would have us -believe? - - "Odious! in woollen! 'twould a saint provoke!" - Were the last words that poor Narcissa spoke. - "No: let a charming chintz and Brussels lace - Wrap my cold limbs and shade my lifeless face!" - -"Narcissa" had her wish: the "Brussels lace" of her head-dress, her -"Holland shift," a "pair of new kid gloves on her cold hands," were the -talk of the town; so they tricked her out for Westminster Abbey. - -Almost up to Waterloo the Act lingered on the Statute Book, till some -ingenious rascal brought an action against various clergymen for the £5 -penalty, for that they had not certified to churchwardens the cases of -non-compliance. And so, in 1814, the 54th George III. c. 108 swept away -the strange provision. - - - - -PRINTED BY TURNBULL AND SPEARS, EDINBURGH - - - - -TRANSCRIBER'S NOTES: - - - Text in italics is surrounded with underscores: _italics_. - - Obvious typographical errors have been corrected. - - Inconsistencies in spelling, punctuation, and hyphenation have been - standardized. - - - - - - -End of the Project Gutenberg EBook of The Law's Lumber Room, by Francis Watt - -*** END OF THIS PROJECT GUTENBERG EBOOK THE LAW'S LUMBER ROOM *** - -***** This file should be named 55724-8.txt or 55724-8.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/5/5/7/2/55724/ - -Produced by deaurider, David E. 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