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diff --git a/old/55724-h/55724-h.htm b/old/55724-h/55724-h.htm deleted file mode 100644 index b2ad33f..0000000 --- a/old/55724-h/55724-h.htm +++ /dev/null @@ -1,4194 +0,0 @@ -<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN" - "http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd"> -<html xmlns="http://www.w3.org/1999/xhtml" xml:lang="en" lang="en"> - <head> - <meta http-equiv="Content-Type" content="text/html;charset=iso-8859-1" /> - <meta http-equiv="Content-Style-Type" content="text/css" /> - <title> - The Project Gutenberg eBook of The Law's Lumber Room, by Francis Watt. - </title> - <link rel="coverpage" href="images/cover.jpg"/> - <style type="text/css"> - -body { - margin-left: 10%; - margin-right: 10%; -} - - h1,h2 { - text-align: center; clear: both; -} - -p { - margin-top: .51em; - text-align: justify; - margin-bottom: .49em; -} - -.large {font-size: large;} -.xlarge {font-size: x-large;} -.giant {font-size: 250%;} - - -div.chapter {page-break-before: always;} -h2.nobreak {page-break-before: avoid;} - -hr { - width: 33%; - margin-top: 2em; - margin-bottom: 2em; - margin-left: 33.5%; - margin-right: 33.5%; - clear: both; -} - -hr.chap {width: 65%; margin-left: 17.5%; margin-right: 17.5%;} - - - -table { - margin-left: auto; - margin-right: auto; -} -.pagenum { - position: absolute; - left: 92%; - font-size: smaller; - text-align: right; -} - -div.titlepage { - text-align: center; - page-break-before: always; - page-break-after: always; -} - -div.titlepage p { - text-align: center; - text-indent: 0em; - font-weight: bold; - line-height: 1.5; - margin-top: 3em; -} - -.center {text-align: center;} - -.smcap {font-variant: small-caps;} - -.figcenter { - margin: auto; - text-align: center; -} - -.poetry-container -{ - text-align: center; -} - -.poetry -{ - display: inline-block; - text-align: left; -} - - - -.poetry .verse -{ - text-indent: -3em; - padding-left: 3em; -} - -.transnote {background-color: #E6E6FA; - color: black; - font-size:smaller; - padding:0.5em; - margin-bottom:5em; - font-family:sans-serif, serif; } - - </style> - </head> -<body> - - -<pre> - -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) - - - - - - -</pre> - - -<div class="figcenter"><img src="images/cover.jpg" alt=""/></div> - -<hr class="chap" /> - -<div class="transnote"> -<p class="center"><span class="xlarge">TRANSCRIBER'S NOTES:</span></p> - - -<p>Obvious typographical errors have been corrected.</p> - -<p>Inconsistencies in spelling, punctuation, and hyphenation have been standardized.</p> - -<p>The title page of the original book image was modified and used as the cover for this eBook, and is placed in the public domain.</p> -</div> - -<hr class="chap" /> - -<h1>The Law's Lumber Room</h1> - -<hr class="chap" /> - -<p class="center"><i>Of this Edition 600 copies have been printed -for England and America.</i></p> - -<hr class="chap" /> - -<div class="titlepage"> -<p><span class="xlarge">The<br /> -Law's Lumber Room</span></p> - -<p>By<br /> -<span class="large">Francis Watt</span></p> - -<p>London<br /> -John Lane, The Bodley Head, Vigo St.<br /> -Chicago: A. C. M<sup>c</sup>Clurg & Co.<br /> -<br /> -<small>MDCCCXCV</small> -</p></div> - -<hr class="chap" /> - - -<p class="center"><span class="large"> -TO<br /> -WILLIAM ERNEST HENLEY<br /> -FLOTSAM AND JETSAM<br /> -FROM HIS OLD JOURNAL</span></p> - -<hr class="chap" /> - - -<div class="chapter"> - -<h2 class="nobreak">PREFATORY</h2></div> - - -<p><span class="smcap">To</span> 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"?</p> - -<p>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 Mediĉval England as actual as, -though so much more sombre than, the -vision conjured up in Chaucer's magic -<i>Prologue</i>. "Trial by Ordeal" and "Wager -of Battle" touch on superstitions and beliefs -that lay at the very core of the -nation's being.</p> - -<p>"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!</p> - -<p>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.</p> - -<p>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 <i>National Observer</i> -under Mr W. E. Henley's editorship. I -have made a few additions and corrections.</p> - - -<hr class="chap" /> - -<div class="chapter"> - -<h2 class="nobreak">CONTENTS</h2></div> - - -<table border="0" cellpadding="3" cellspacing="3" summary="table"> - -<tr><td> </td><td align="right"><small>PAGE</small></td></tr> - -<tr><td>BENEFIT OF CLERGY</td><td align="right"><a href="#Page_1">1</a></td></tr> - -<tr><td>PEINE FORTE ET DURE</td><td align="right"><a href="#Page_10">10</a></td></tr> - -<tr><td>A PASSAGE IN SHAKESPEARE (FINES AND RECOVERIES)</td><td align="right"><a href="#Page_26">26</a></td></tr> - -<tr><td>THE CUSTOM OF THE MANOR</td><td align="right"><a href="#Page_36">36</a></td></tr> - -<tr><td>DEODANDS</td><td align="right"><a href="#Page_54">54</a></td></tr> - -<tr><td>THE LAW OF THE FOREST</td><td align="right"><a href="#Page_62">62</a></td></tr> - -<tr><td>PAR NOBILE FRATRUM (JOHN DOE AND RICHARD ROE)</td><td align="right"><a href="#Page_74">74</a></td></tr> - -<tr><td>SANCTUARY</td><td align="right"><a href="#Page_84">84</a></td></tr> - -<tr><td>TRIAL BY ORDEAL</td><td align="right"><a href="#Page_98">98</a></td></tr> - -<tr><td>WAGER OF BATTLE</td><td align="right"><a href="#Page_107">107</a></td></tr> - -<tr><td>THE PRESS GANG </td><td align="right"><a href="#Page_120">120</a></td></tr> - -<tr><td>SUMPTUARY LAWS </td><td align="right"><a href="#Page_129">129</a></td></tr> -</table> - - -<hr class="chap" /> - - - - - -<div class="chapter"> -<span class="pagenum"><a name="Page_1" id="Page_1">[Pg 1]</a></span> -<h2 class="nobreak">BENEFIT OF CLERGY</h2></div> - - -<p>"<span class="smcap">Benefit</span> 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<span class="pagenum"><a name="Page_2" id="Page_2">[Pg 2]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_3" id="Page_3">[Pg 3]</a></span> -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 <i>bigamus</i>, 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, <i>temp.</i> 1547) made an end of this -latter distinction by declaring, with quaint<span class="pagenum"><a name="Page_4" id="Page_4">[Pg 4]</a></span> -tautology that <i>bigami</i> 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—<i>Miserere mei, -Deus</i>: "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<span class="pagenum"><a name="Page_5" id="Page_5">[Pg 5]</a></span> -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. -"<i>Suspendatur</i>," 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."</p> - -<p>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<span class="pagenum"><a name="Page_6" id="Page_6">[Pg 6]</a></span> -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<span class="pagenum"><a name="Page_7" id="Page_7">[Pg 7]</a></span> -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 <i>Every Man in his -Humour</i>, the cunning artist of <i>Queen and -Huntress</i>, and <i>Drink to me only with -thine Eyes</i>, 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.</p> - -<p>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, "<i>sign' cum lra' T et del</i>," -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<span class="pagenum"><a name="Page_8" id="Page_8">[Pg 8]</a></span> -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, <i>The -Untrussing of the Humourous Poet</i>, -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.</p> - -<p>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.</p> - -<p>But another process was going on all this -time. A great and ever-increasing number<span class="pagenum"><a name="Page_9" id="Page_9">[Pg 9]</a></span> -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.</p> - -<hr class="chap" /> - - - - - - -<div class="chapter"> -<span class="pagenum"><a name="Page_10" id="Page_10">[Pg 10]</a></span> -<h2 class="nobreak">PEINE FORTE ET DURE</h2></div> - - -<p><span class="smcap">In</span> 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,"<span class="pagenum"><a name="Page_11" id="Page_11">[Pg 11]</a></span> -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—<i>onere, frigore, et fame</i>. -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 -<i>peine forte et dure</i>. 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<span class="pagenum"><a name="Page_12" id="Page_12">[Pg 12]</a></span> -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."</p> - -<p>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 <i>he</i> 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<span class="pagenum"><a name="Page_13" id="Page_13">[Pg 13]</a></span> -Middlesex alone. "<i>Mortuus en pen' fort' et -dur'</i>," 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 <i>peine -forte et dure</i> from stupidity, obstinacy, -or sheer indifference to mortal suffering -and death.</p> - -<p>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<span class="pagenum"><a name="Page_14" id="Page_14">[Pg 14]</a></span> -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 <i>prison forte et dure</i>. -Here they went "barefooted and bareheaded, -in their coat only in prison, upon the bare -ground continually night and day, fastened<span class="pagenum"><a name="Page_15" id="Page_15">[Pg 15]</a></span> -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" <i>forte et dure</i> became the "peine" -<i>forte et dure</i>: with the consequence that,<span class="pagenum"><a name="Page_16" id="Page_16">[Pg 16]</a></span> -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 <i>peine forte et -dure</i> 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.</p> - - - -<p><span class="pagenum"><a name="Page_17" id="Page_17">[Pg 17]</a></span>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<span class="pagenum"><a name="Page_18" id="Page_18">[Pg 18]</a></span> -before it submitted him to this dread -penalty.</p> - -<p>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.</p> - -<p>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:<span class="pagenum"><a name="Page_19" id="Page_19">[Pg 19]</a></span> -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<span class="pagenum"><a name="Page_20" id="Page_20">[Pg 20]</a></span> -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<span class="pagenum"><a name="Page_21" id="Page_21">[Pg 21]</a></span> -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<span class="pagenum"><a name="Page_22" id="Page_22">[Pg 22]</a></span> -vain, so at last even Whigington abandoned -his attempt, and "after he had -pitied her case awhile, he departed and -came no more."</p> - -<p>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<span class="pagenum"><a name="Page_23" id="Page_23">[Pg 23]</a></span> -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<span class="pagenum"><a name="Page_24" id="Page_24">[Pg 24]</a></span> -the afternoon were the braised remains -taken from the press.</p> - -<p>Stories of violence and cruelty serve not -our purpose unless they illustrate some -point, and I shall but refer to two other -cases.</p> - -<p>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 <i>peine forte et dure</i>. 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<span class="pagenum"><a name="Page_25" id="Page_25">[Pg 25]</a></span> -dead body was then displayed to the -public.</p> - -<p>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.</p> - -<hr class="chap" /> - -<div class="chapter"> -<span class="pagenum"><a name="Page_26" id="Page_26">[Pg 26]</a></span> -<h2 class="nobreak">A PASSAGE IN SHAKESPEARE</h2></div> - -<p class="center"><span class="large"><strong>FINES AND RECOVERIES</strong></span></p> - - -<p>"<span class="smcap">Is</span> 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<span class="pagenum"><a name="Page_27" id="Page_27">[Pg 27]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_28" id="Page_28">[Pg 28]</a></span> -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 -<i>De Donis Conditionalibus</i>, or the Statute -of Westminster the Second (13 Ed. I., c. -1), created the Estate Tail (<i>i.e.</i> <i>Taillé</i>, 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<span class="pagenum"><a name="Page_29" id="Page_29">[Pg 29]</a></span> -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. <i>Taltarum's Case</i> 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.</p> - -<p>The mediĉval 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<span class="pagenum"><a name="Page_30" id="Page_30">[Pg 30]</a></span> -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.</p> - -<p>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.</p> - -<p>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 <i>prĉcipe</i>," 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<span class="pagenum"><a name="Page_31" id="Page_31">[Pg 31]</a></span> -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>i.e.</i> he -demanded that the case should go before -a jury for trial. B then craved leave -"to imparl" (<i>i.e.</i> 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<span class="pagenum"><a name="Page_32" id="Page_32">[Pg 32]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_33" id="Page_33">[Pg 33]</a></span> -(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."</p> - -<p>And now for a word on fines. These<span class="pagenum"><a name="Page_34" id="Page_34">[Pg 34]</a></span> -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.</p> - -<p>And the land-owners? These, too, long -since availed themselves of the dark and -subtle devices of the conveyancer. Sir<span class="pagenum"><a name="Page_35" id="Page_35">[Pg 35]</a></span> -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.</p> - -<hr class="chap" /> - - -<div class="chapter"> -<span class="pagenum"><a name="Page_36" id="Page_36">[Pg 36]</a></span> -<h2 class="nobreak">THE CUSTOM OF THE MANOR</h2></div> - - -<p><span class="smcap">Has</span> 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 mediĉval 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.</p> - -<p>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<span class="pagenum"><a name="Page_37" id="Page_37">[Pg 37]</a></span> -sub-infeudation was stopped by the statute -<i>quia emptores</i> 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<span class="pagenum"><a name="Page_38" id="Page_38">[Pg 38]</a></span> -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 mediĉval 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<span class="pagenum"><a name="Page_39" id="Page_39">[Pg 39]</a></span> -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.</p> - -<p>Most manors were held of the Crown, in -return for services sometimes of the oddest<span class="pagenum"><a name="Page_40" id="Page_40">[Pg 40]</a></span> -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 <i>hastias</i> 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 <i>Giron</i>," which, being enriched -with lard, was called <i>Maupygernon</i>—which -last is possibly mediĉval Welsh for -a haggis? Thomas Bardolf, who died, -lord of Addington, in 5 Edward III., was -pledged to compound three portions of<span class="pagenum"><a name="Page_41" id="Page_41">[Pg 41]</a></span> -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 <i>King -Lear</i>) 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 -mediĉval sovereign held in special favour), -were abundant. But how to riddle this -one? The manor of Shrivenham, in Berks, -was held (<i>temp.</i> 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 mediĉval Latin, -"Behold," he said, "my lord, these two -capons, which you shall have another -time, but not now," which pleasantry reminds<span class="pagenum"><a name="Page_42" id="Page_42">[Pg 42]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_43" id="Page_43">[Pg 43]</a></span> -bound to provide a certain number (twelve -in one instance) of young women, called -<i>meretrices</i>, 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 <i>The -Times</i> (it was then to the <i>Gentleman's -Magazine</i>) 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 mediĉval 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.</p> - -<p>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,<span class="pagenum"><a name="Page_44" id="Page_44">[Pg 44]</a></span> -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.</p> - -<p>The holding of Pusey in Berks by the<span class="pagenum"><a name="Page_45" id="Page_45">[Pg 45]</a></span> -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 <i>greese</i> -(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."</p> - -<p>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.<span class="pagenum"><a name="Page_46" id="Page_46">[Pg 46]</a></span> -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,<span class="pagenum"><a name="Page_47" id="Page_47">[Pg 47]</a></span> -Oxford, for certain manors of theirs -in Hampshire, <i>pro mulieribus hockantibus</i>, -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<span class="pagenum"><a name="Page_48" id="Page_48">[Pg 48]</a></span> -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."</p> - -<p>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—</p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse">"Here I am</div> -<div class="verse">Riding upon a black ram"——</div> -</div></div> - - - -<p><span class="pagenum"><a name="Page_49" id="Page_49">[Pg 49]</a></span>Alas, that the rest must be silence! -The <i>Spectator</i>, 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 <i>jus primĉ noctis</i>, 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<span class="pagenum"><a name="Page_50" id="Page_50">[Pg 50]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_51" id="Page_51">[Pg 51]</a></span> -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!</p> - -<p>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.</p> - - - -<p><span class="pagenum"><a name="Page_52" id="Page_52">[Pg 52]</a></span>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<span class="pagenum"><a name="Page_53" id="Page_53">[Pg 53]</a></span> -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 (<i>inter alia</i>) "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.</p> - -<hr class="chap" /> - - -<div class="chapter"> -<span class="pagenum"><a name="Page_54" id="Page_54">[Pg 54]</a></span> -<h2 class="nobreak">DEODANDS</h2></div> - - -<p><span class="smcap">At</span> 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,<span class="pagenum"><a name="Page_55" id="Page_55">[Pg 55]</a></span> -or because he fell from a tree, in either -case the wood was a deodand, and so forfeited. -The name is from <i>Deo dandum</i>—a -thing that must be offered to God, -and this because in early mediĉval times -the Church or the poor had the ultimate -benefit.</p> - -<p>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 <i>per infortunium</i> (or without -blame) used the article, the jury -found that as a fact, and he was acquitted,<span class="pagenum"><a name="Page_56" id="Page_56">[Pg 56]</a></span> -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 <i>ad mortem</i>." -Again, a ship was hauled up for repairs, -toppled over on a shipwright at work, -and was declared forfeit. Your mediĉval -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<span class="pagenum"><a name="Page_57" id="Page_57">[Pg 57]</a></span> -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!</p> - -<p>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 "<i>apud Fleet Street in -suburbio London</i>", 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<span class="pagenum"><a name="Page_58" id="Page_58">[Pg 58]</a></span> -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 mediĉval lawyer's speculation must stop -somewhere. But how if the slayer were -a lad? A Cornish case, <i>temp.</i> 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 <i>le Hoke</i> 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<span class="pagenum"><a name="Page_59" id="Page_59">[Pg 59]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_60" id="Page_60">[Pg 60]</a></span> -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 <i>Hudibras</i>—treats -this as the general rule.</p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse">"For love should, like a deodand,</div> -<div class="verse">Still fall to the owner of the land."</div> -</div></div> - -<p>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, -<i>e.g.</i>, "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 <i>Prerogatives</i>, 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 mediĉval -ghosts began to walk again to some purpose. -In 1840 the London and Birmingham -Railway Company was amerced in £2000<span class="pagenum"><a name="Page_61" id="Page_61">[Pg 61]</a></span> -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 <i>per infortunium</i>.</p> - -<p>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 <i>invitis corum dentibus</i> -in dangerous weather. He was thrown -out and drowned, and the jury, it was said, -brought in a verdict of <i>felo de se</i>, to save -the boat from forfeiture. But the weight of -authority was emphatically against this -view.</p> - -<hr class="chap" /> - - -<div class="chapter"> -<span class="pagenum"><a name="Page_62" id="Page_62">[Pg 62]</a></span> -<h2 class="nobreak">THE LAW OF THE FOREST</h2></div> - - -<p>"<span class="smcap">A stretch</span> 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<span class="pagenum"><a name="Page_63" id="Page_63">[Pg 63]</a></span> -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 <i>For Rest</i> -of the wild beasts; but a sounder etymology -traces the word to <i>foris</i> (= 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.</p> - -<p>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<span class="pagenum"><a name="Page_64" id="Page_64">[Pg 64]</a></span> -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>i.e.</i>, 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.</p> - -<p>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,<span class="pagenum"><a name="Page_65" id="Page_65">[Pg 65]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_66" id="Page_66">[Pg 66]</a></span> -charmed ground might not fell his own -timber without leave, lest he should -spoil the <i>Cover</i>: 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 <i>surcharging</i> the -forest.</p> - -<p>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 -<i>Scotale</i>—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 (<i>inter alia</i>) 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<span class="pagenum"><a name="Page_67" id="Page_67">[Pg 67]</a></span> -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.</p> - -<p>Offences were either trespasses <i>in Vert</i> -or trespasses <i>in Venison</i>. The Vert (= -green) was of course the cover; and the -destruction thereof was called <i>Waste</i>, while -<i>Assart</i> was stubbling it up to make -ploughland: and <i>Purpestre</i> (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<span class="pagenum"><a name="Page_68" id="Page_68">[Pg 68]</a></span> -windmill on his own ground in Windsor -Chase). Moreover, Vert might be <i>Over -Vert</i> or <i>Hault-Bois</i>, or it might be <i>Nether-Vert</i> -or <i>Sous-Bois</i>, according as it was -underwood or not; and in either case it -was <i>Special Vert</i> if it bore fruit, such -as pears, crabs, hips, and haws, whereon -the deer might feed.</p> - -<p>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<span class="pagenum"><a name="Page_69" id="Page_69">[Pg 69]</a></span> -escaped the pursuit of king or queen he -became a Hart Royal, which no subject -might molest.</p> - -<p>In 1194, Richard Cœur-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<span class="pagenum"><a name="Page_70" id="Page_70">[Pg 70]</a></span> -(not Brush be it noted) or Holy Water -Sprinkle. Their amours (<i>e.g.</i> 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.</p> - -<p>The peace of those precious animals -was elaborately safeguarded, and it was -specially forbidden "to haunt the forest" -during the <i>Fence Moneth</i>, 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 <i>With the Manner</i><span class="pagenum"><a name="Page_71" id="Page_71">[Pg 71]</a></span> -(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 <i>Dog-Draw</i> -he was chasing a wounded beast -with hounds; (2) in <i>Stable-Stand</i> he was -drawing his bow in ambush; (3) in <i>Back-Bare</i> -he was carrying off his quarry; (4) -in <i>Bloudy-Hand</i> 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.</p> - -<p>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<span class="pagenum"><a name="Page_72" id="Page_72">[Pg 72]</a></span> -any size were summarily banished the -precincts.</p> - -<p>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<span class="pagenum"><a name="Page_73" id="Page_73">[Pg 73]</a></span> -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.</p> - -<hr class="chap" /> - - -<div class="chapter"> -<span class="pagenum"><a name="Page_74" id="Page_74">[Pg 74]</a></span> -<h2 class="nobreak">PAR NOBILE FRATRUM</h2></div> - -<p class="center"><span class="large"><strong>JOHN DOE AND RICHARD ROE</strong></span></p> - - -<p><span class="smcap">Old</span> 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<span class="pagenum"><a name="Page_75" id="Page_75">[Pg 75]</a></span> -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:—</p> - -<table border="0" cellpadding="0" cellspacing="0" summary="table"> - -<tr><td rowspan="2"><i>Pledges of Prosecution</i></td><td rowspan="2"><span class="giant">{</span></td><td><span class="smcap">John Doe.</span></td></tr> - <tr><td><span class="smcap">Richard Roe.</span></td></tr> -</table> - -<p>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.</p> - -<p>One must begin far back. In early<span class="pagenum"><a name="Page_76" id="Page_76">[Pg 76]</a></span> -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 <i>Ejectio Firmĉ</i>, or ejectment, -was adapted from the proceeding in -trespass. It called upon the wrong-doer of -every species to show why, "with force and<span class="pagenum"><a name="Page_77" id="Page_77">[Pg 77]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_78" id="Page_78">[Pg 78]</a></span> -their forms were numerous and varied (the -assizes of <i>morte d'ancestor</i> and <i>novel disseisin</i>, -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 manœuvring, 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 <i>vi et armis</i> by B. from land -whereof he held a lease from A. In this -action the main point evidently was: Had<span class="pagenum"><a name="Page_79" id="Page_79">[Pg 79]</a></span> -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.</p> - - - -<p><span class="pagenum"><a name="Page_80" id="Page_80">[Pg 80]</a></span>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 <i>Doe</i> against <i>Roe</i>, 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<span class="pagenum"><a name="Page_81" id="Page_81">[Pg 81]</a></span> -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.</p> - -<p>So strangely had this action varied from -its first use—which was to recover damages<span class="pagenum"><a name="Page_82" id="Page_82">[Pg 82]</a></span> -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 "<i>Doe</i> -against <i>Roe</i>," the cases are usually cited -as "<i>Doe on the demise of A.</i>" (the real -plaintiff) "against B." (the real defendant), -and whilst John and Richard were the -favourite styles, we have occasionally -"<i>Good Title</i> against <i>Bad Title</i>": a -comically impudent begging of the question -at issue. If the outside public mocked -these venerable figures, <i>par nobile fratrum</i>, -the suitor did so at his peril. A certain -Unitt (<i>temp.</i> 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<span class="pagenum"><a name="Page_83" id="Page_83">[Pg 83]</a></span> -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.</p> - -<hr class="chap" /> - - -<div class="chapter"> -<span class="pagenum"><a name="Page_84" id="Page_84">[Pg 84]</a></span> -<h2 class="nobreak">SANCTUARY</h2></div> - - -<p><span class="smcap">Your</span> 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 (<span class="smcap">B.C.</span> 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<span class="pagenum"><a name="Page_85" id="Page_85">[Pg 85]</a></span> -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 mediĉval -England.</p> - -<p>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.<span class="pagenum"><a name="Page_86" id="Page_86">[Pg 86]</a></span> -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<span class="pagenum"><a name="Page_87" id="Page_87">[Pg 87]</a></span> -beyond the precincts, <i>causâ superflui -deponendi</i>, 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.</p> - -<p>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<span class="pagenum"><a name="Page_88" id="Page_88">[Pg 88]</a></span> -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,<span class="pagenum"><a name="Page_89" id="Page_89">[Pg 89]</a></span> -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.</p> - -<p>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 <i>that</i> 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,<span class="pagenum"><a name="Page_90" id="Page_90">[Pg 90]</a></span> -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 (<i>circa</i> 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 (<i>temp.</i> 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,<span class="pagenum"><a name="Page_91" id="Page_91">[Pg 91]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_92" id="Page_92">[Pg 92]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_93" id="Page_93">[Pg 93]</a></span> -—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 <i>sub spe redeundi</i> had -been a sore grievance of late—he was to<span class="pagenum"><a name="Page_94" id="Page_94">[Pg 94]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_95" id="Page_95">[Pg 95]</a></span> -(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 <i>Soldier's Fortune</i> 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 <i>posse comitatus</i> -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. <i>The Fortunes -of Nigel</i> 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"<span class="pagenum"><a name="Page_96" id="Page_96">[Pg 96]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_97" id="Page_97">[Pg 97]</a></span> -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.</p> - -<hr class="chap" /> - - -<div class="chapter"> -<span class="pagenum"><a name="Page_98" id="Page_98">[Pg 98]</a></span> -<h2 class="nobreak">TRIAL BY ORDEAL</h2></div> - - -<p><span class="smcap">Before</span> 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 <i>primâ facie</i> case -against the suspect, who instantly rebutted<span class="pagenum"><a name="Page_99" id="Page_99">[Pg 99]</a></span> -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 <i>Judicium Dei</i>, the Creator -was called upon to prove beyond dispute -the guilt or innocence of the accused.</p> - -<p>Trial by Ordeal was more ancient than<span class="pagenum"><a name="Page_100" id="Page_100">[Pg 100]</a></span> -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 <i>Antigone</i> (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 <i>adjuratio -aquĉ</i>, wherein the water was -enjoined to cast him forth if he were -guilty, but to receive him into its depths<span class="pagenum"><a name="Page_101" id="Page_101">[Pg 101]</a></span> -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 <i>not</i> to sink under such conditions? -The practice of testing witches<span class="pagenum"><a name="Page_102" id="Page_102">[Pg 102]</a></span> -by throwing them, securely tied, into the -nearest pond was clearly a survival of this -form of ordeal.</p> - -<p>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<span class="pagenum"><a name="Page_103" id="Page_103">[Pg 103]</a></span> -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 <i>her</i> feet, the red-hot iron -had marked them not at all!</p> - -<p>The last mode was the <i>Corsnĉd</i>, 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,<span class="pagenum"><a name="Page_104" id="Page_104">[Pg 104]</a></span> -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<span class="pagenum"><a name="Page_105" id="Page_105">[Pg 105]</a></span> -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.</p> - -<p>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 -<i>Richard the Third</i>, "dead Henry's wounds" -are seen "to open their congealed mouths -and bleed afresh" as Gloucester draws near<span class="pagenum"><a name="Page_106" id="Page_106">[Pg 106]</a></span> -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.</p> - -<hr class="chap" /> - - - -<div class="chapter"> -<span class="pagenum"><a name="Page_107" id="Page_107">[Pg 107]</a></span> -<h2 class="nobreak">WAGER OF BATTLE</h2></div> - - -<p><span class="smcap">Judicial</span> 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 (<span class="smcap">a.d.</span> 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 <i>not</i> with us before the Conquest -moves Bishop Stubbs to something of the -scholar's mild amazement. The Normans,<span class="pagenum"><a name="Page_108" id="Page_108">[Pg 108]</a></span> -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>i.e.</i> prove this -mode of trial improper) if the accused -were caught red-handed. The parties -exchanged gloves, and gave pledges or<span class="pagenum"><a name="Page_109" id="Page_109">[Pg 109]</a></span> -wads (<i>vadiare bellum</i>); 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.</p> - -<p>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<span class="pagenum"><a name="Page_110" id="Page_110">[Pg 110]</a></span> -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<span class="pagenum"><a name="Page_111" id="Page_111">[Pg 111]</a></span> -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.</p> - -<p>The Appellee, asking for inquiry as to<span class="pagenum"><a name="Page_112" id="Page_112">[Pg 112]</a></span> -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 -<i>his</i> 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 <i>him</i>; "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<span class="pagenum"><a name="Page_113" id="Page_113">[Pg 113]</a></span> -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. "<i>Victus est -et susp</i>," so for epitaph wrote the official -scribe against his name. And the exchequer -parchments knew him and his -"<i>1d. ob. per diem</i>" no more.</p> - -<p>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<span class="pagenum"><a name="Page_114" id="Page_114">[Pg 114]</a></span> -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 (<i>e.g.</i>) 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<span class="pagenum"><a name="Page_115" id="Page_115">[Pg 115]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_116" id="Page_116">[Pg 116]</a></span> -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 "<i>Laissez les aller</i>," 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.</p> - -<p>This is the form of judicial combat that -caught the fancy of our great writers. In -Chaucer's <i>Knight's Tale</i> there is the<span class="pagenum"><a name="Page_117" id="Page_117">[Pg 117]</a></span> -elaborate set to between Palamon -and Arcite. In Shakespeare's <i>Richard -II.</i> there is the fiasco of Norfolk -and Hereford. In <i>Lear</i> we have the fight -to the death between Edmund and Edgar, -and "every schoolboy knows" The Templar's -duel in <i>Ivanhoe</i>.</p> - -<p>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<span class="pagenum"><a name="Page_118" id="Page_118">[Pg 118]</a></span> -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<span class="pagenum"><a name="Page_119" id="Page_119">[Pg 119]</a></span> -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.</p> - -<hr class="chap" /> - - -<div class="chapter"> -<span class="pagenum"><a name="Page_120" id="Page_120">[Pg 120]</a></span> -<h2 class="nobreak">THE PRESS-GANG</h2></div> - - -<p><span class="smcap">Smollett</span>, 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 <i>first</i> and -<i>then</i> 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?<span class="pagenum"><a name="Page_121" id="Page_121">[Pg 121]</a></span> -And what was the legal status of the press-gang?</p> - -<p>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. -<i>Mortar</i> 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, <i>with -neither captain nor lieutenant</i> to look for -men. She had no luck till evening, when -she came across the <i>Bremen Factor</i>, 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<span class="pagenum"><a name="Page_122" id="Page_122">[Pg 122]</a></span> -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<span class="pagenum"><a name="Page_123" id="Page_123">[Pg 123]</a></span> -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<span class="pagenum"><a name="Page_124" id="Page_124">[Pg 124]</a></span> -Board. In the end my lords gave way, -and Marlow received again her ravished -freeholder.</p> - -<p>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<span class="pagenum"><a name="Page_125" id="Page_125">[Pg 125]</a></span> -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 <i>Crown Practice</i> -(1844) a form of <i>Habeas Corpus ad subjiciendum</i> -for impressed men, with the -comment that it is little needed now.</p> - -<p>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 (<i>temp.</i> 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 (<i>temp.</i> -Philip and Mary) reproves the Thames -watermen who, in pressing time, "do<span class="pagenum"><a name="Page_126" id="Page_126">[Pg 126]</a></span> -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.</p> - -<p>Press-gang stories, more or less authentic, -are numerous. Here are samples which -serve to show that the searchers did not<span class="pagenum"><a name="Page_127" id="Page_127">[Pg 127]</a></span> -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 <i>they</i> would do did the press-gang -dare to molest <i>them</i>, 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<span class="pagenum"><a name="Page_128" id="Page_128">[Pg 128]</a></span> -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 <i>him</i>, and away -at a great rate, though not fast enough -to get clear.</p> - -<hr class="chap" /> - - -<div class="chapter"> -<span class="pagenum"><a name="Page_129" id="Page_129">[Pg 129]</a></span> -<h2 class="nobreak">SUMPTUARY LAWS</h2></div> - - -<p>"<span class="smcap">Act</span> 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 mediĉval 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<span class="pagenum"><a name="Page_130" id="Page_130">[Pg 130]</a></span> -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 mediĉval 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<span class="pagenum"><a name="Page_131" id="Page_131">[Pg 131]</a></span> -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.</p> - -<p>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;<span class="pagenum"><a name="Page_132" id="Page_132">[Pg 132]</a></span> -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<span class="pagenum"><a name="Page_133" id="Page_133">[Pg 133]</a></span> -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.</p> - -<p>The fashion changed to <i>dagges</i>, 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.<span class="pagenum"><a name="Page_134" id="Page_134">[Pg 134]</a></span> -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<span class="pagenum"><a name="Page_135" id="Page_135">[Pg 135]</a></span> -eight days to persons not having £3000 a -year he should be without legal remedy -against his debtor.</p> - -<p>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 <i>Anatomie of -Abuses</i>. "There is now," he groans, "such -a confused mingle-mangle of apparel, and<span class="pagenum"><a name="Page_136" id="Page_136">[Pg 136]</a></span> -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<span class="pagenum"><a name="Page_137" id="Page_137">[Pg 137]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_138" id="Page_138">[Pg 138]</a></span> -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.<span class="pagenum"><a name="Page_139" id="Page_139">[Pg 139]</a></span> -The relatives must file an affidavit with -the clergyman as to this, and £5 was the -fine for <i>him</i> 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?</p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse">"Odious! in woollen! 'twould a saint provoke!"</div> -<div class="verse">Were the last words that poor Narcissa spoke.</div> -<div class="verse">"No: let a charming chintz and Brussels lace</div> -<div class="verse">Wrap my cold limbs and shade my lifeless face!"</div> -</div></div> - -<p>"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.</p> - -<p>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.</p> - - - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_140" id="Page_140">[Pg 140]</a></span></p> - -<p class="center">PRINTED BY TURNBULL AND SPEARS, EDINBURGH</p> - - - - - - - - -<pre> - - - - - -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-h.htm or 55724-h.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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