Title: The Law's Lumber Room
Author: Watt, Francis
Language: English
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The Law's Lumber Room



_Of this Edition 600 copies have been printed for England and America._



  The

  Law's Lumber Room

  By

  Francis Watt


  London

  John Lane, The Bodley Head, Vigo St.
  Chicago: A. C. McClurg & Co.

  MDCCCXCV



  TO
  WILLIAM ERNEST HENLEY
  FLOTSAM AND JETSAM
  FROM HIS OLD JOURNAL



PREFATORY


To the Lumber Room you drag furniture no longer fit for daily use,
and there it lies, old fashioned, cumbrous, covered year by year with
fresh depths of dust. Is it fanciful to apply this image to the Law?
Has not that its Lumber Room of repealed Statutes, discarded methods,
antiquated text-books--"many a quaint and curious volume of forgotten
lore"?

But law, even when an actual part of the life of to-day is like to
prove a tedious thing to the lay reader, can one hope to find the dry
bones of romance in its antiquities? I venture to answer, "Yes." Among
all the rubbish, the outworn instruments of cruelty, superstition,
terror, there are things of interest. "Benefit of Clergy," the "Right
of Sanctuary," bulk large in English literature; the "Law of the
Forest" gives us a glimpse into the life of Mediæval England as
actual as, though so much more sombre than, the vision conjured up in
Chaucer's magic _Prologue_. "Trial by Ordeal" and "Wager of Battle"
touch on superstitions and beliefs that lay at the very core of the
nation's being.

"As full of fictions as English law," wrote Macaulay in the early
part of the century; but we have changed that, we are more practical,
if less picturesque, and John Doe and all his tribe are long out of
date. Between the reign of James I. and that of Victoria all the
subjects here discussed have suffered change, with one exception. The
"Press-Gang" is still a legal possibility, but how hard to fancy it
ever again in actual use!

I fear that these glimpses of other days may seem harsh and sombre;
there is blood everywhere; the cruel consequences of law or custom are
pushed to their logical conclusions with ruthless determination. The
contrast to the almost morbid sentimentalism of to-day is striking.
So difficult it seems to hit the just mean! But the improvement is
enormous. Gibes at the Law are the solace of its victims, and no one
would deprive them of so innocent a relief, yet if these cared to
enquire they would often find that the mark of their jest had vanished
years ago to the Lumber Room.

The plan of these papers did not permit a detailed reference to
authorities, but I have mentioned every work from which I derived
special assistance. I will only add that this little book originally
appeared as contributions to the _National Observer_ under Mr W. E.
Henley's editorship. I have made a few additions and corrections.



CONTENTS


                                                     PAGE

  BENEFIT OF CLERGY                                     1

  PEINE FORTE ET DURE                                  10

  A PASSAGE IN SHAKESPEARE (FINES AND RECOVERIES)      26

  THE CUSTOM OF THE MANOR                              36

  DEODANDS                                             54

  THE LAW OF THE FOREST                                62

  PAR NOBILE FRATRUM (JOHN DOE AND RICHARD ROE)        74

  SANCTUARY                                            84

  TRIAL BY ORDEAL                                      98

  WAGER OF BATTLE                                     107

  THE PRESS GANG                                      120

  SUMPTUARY LAWS                                      129



BENEFIT OF CLERGY


"Benefit of Clergy" is a phrase which has entered into English
literature and English thought. The thing itself exists no longer,
though the last traces of it were only removed during the present
reign; but it so strikingly illustrates certain peculiarities of
English law-making, it has, moreover, so curious a history as to be
interesting even to-day. It took its rise in times when the pretensions
of the Church, high in themselves, were highly favoured by the secular
power. The clergy was a distinct order, and to subject its members to
the jurisdiction of the secular courts was deemed improper; so, when
a clerk was seized under a charge of murder, or some other crime, the
ordinary stepped forth and claimed him for the "Court Christian,"
whereto the whole matter was at once relegated. There the bishop or
his deputy sat as judge. There was a jury of twelve clerks before whom
the prisoner declared his innocence on oath. He was ready with twelve
compurgators (a species of witnesses to character) who, after their
kind, said more good of him than they had any warrant for; after which,
on the question of fact, some witnesses were examined for, but none
against him. This curious proceeding, which was not abolished till the
time of Elizabeth, soon became a sham. Nearly every accused got off,
and the rare verdict of guilty had no worse result than degradation or
imprisonment.

Now, so far, the system is intelligible, but in the succeeding
centuries it lost this quality. English legal reformers have ever shown
a strong disinclination to make a clean sweep of a system, but they
keep tinkering at it year after year with a view of making it more
rational or better adapted to current needs. They did so here, and the
result was a strange jumble of contradictions. First, the privilege
was confined to such as had the clerical dress and tonsure, afterwards
it was extended to mere assistants, the very door-keepers being held
within the charmed circle; yet the line had to be drawn somewhere,
and how to decide when every ruffian at his wits' end for a defence
was certain with blatant voice to claim the privilege? Well, could
he read? If so, ten to one he was an ecclesiastic of some sort, and
therefore entitled to his clergy. And it soon came that this was the
only test demanded. If you could read you were presumed a parson, and
had your right to at least one crime free. As no woman could possibly
be ordained, she could not "pray her clergy"--(an exception was made
in the case of a professed nun)--nor might a _bigamus_, who was not
a man who had committed bigamy, but one who "hath married two wives
or one widow." However, a statute (1 Edw. VI., c. 12, s. 16, _temp._
1547) made an end of this latter distinction by declaring, with quaint
tautology that _bigami_ were to have their clergy, "although they or
any of them have been divers and sundry times married to any single
woman or single women, or to any widow or widows, or to two wives
or more." Before this it might well be that your chance of saving
your neck depended on whether you had married a widow or not; which
species was dangerous in a sense undreamt of by Mr Weller. As regards
the reading, it must not be supposed that a difficult examination was
passed by the prisoner before he escaped. You had but to read what
came to be significantly called the Neck-verse from the book which
the officer of court handed you when you "prayed your clergy." The
Neck-verse was the first verse of the fifty-first Psalm in the Vulgate.
It was only three words--_Miserere mei, Deus_: "Have mercy on me, O
God." It seems strange that it was ever recorded of anyone that he
did not read, and was therefore condemned to be hanged; for surely
it were easy to get these words by heart and to repeat them at the
proper time? This must have been done in many cases, and yet sometimes
criminals were so densely ignorant and stupid, or it might be merely
bewildered, that they failed; then the wretch paid the penalty of his
life. "_Suspendatur_," wrote the scribe against his name, and off he
was hauled. The endless repetition of this word proved too much for
official patience, and with brutal brevity the inscription finally
appears, "Sus." or "S."

And now the Neck-verse was free to everyone were he or were he not in
holy orders, and he claimed the privilege after conviction, but in the
reign of Henry VII. (1487) an important change was made. A person who
claimed clergy was to be branded on the crown of his thumb with an
"M" if he were a murderer, with a "T" if he were guilty of any other
felony; if he "prayed his clergy" a second time this was refused him,
unless he were actually in orders. Of course the mark on the thumb was
to record his previous escape from justice. It was with this "Tyburn
T" (as it was called in Elizabethan slang) that Ben Jonson was branded.
It is only within the last few years that careful Mr Cordy Jeaffreson
has exhumed the true story from the Middlesex County Records. The
poet quarrelled and fought a duel with Gabriel Spencer, an actor, and
probably a former colleague. The affair came off at Shoreditch. Jonson,
with his rapier, which the indictment (for a reason explained in the
chapter on "Deodands") values at three shillings, briskly attacked his
opponent, and almost immediately gave him a thrust in the side, whereof
Spencer died then and there. Ben was forthwith seized and thrown into
prison. Whilst waiting his trial he said that spies were set on him,
but he was too much for them, and afterwards all the judges got from
him was but "Ay" and "No." Why spies should have been necessary in so
plain a case is far from clear. It is more significant that a devoted
priest succeeded in converting him for the time to Roman Catholicism,
and he afterwards confessed to Drummond of Hawthornden that he had
come near the gallows. However, what he said, or did not say, is of
little weight as compared with the evidence of contemporary judicial
records. The fact is clear that the poet of _Every Man in his Humour_,
the cunning artist of _Queen and Huntress_, and _Drink to me only with
thine Eyes_, had a true bill found against him by the grand jury, who
sat, by the way, in a tavern, for as yet Hicks Hall, the predecessor of
the Session's-House on Clerkenwell Green, was not.

In October 1598, he was taken to the Old Bailey to stand his trial.
He pleaded guilty, asked for the book, read like a clerk ("Jonson's
learned sock," forsooth!), and as the strangely abbreviated Latin of
the record has it, "_sign' cum lra' T et del_," that is, marked with
the letter "T," and set at large to repair to "The Sun," "The Bolt,"
"The Triple Tun," or some other of those dim, enchanting Elizabethan
taverns, there to give such an account of the transaction as sufficed
to dissemble it till this age of grubbers and dictionaries wherein
you are destined to nose every ancient scandal as you go up the
staircase of letters. It has been suggested that the officer, moved
to inexplicable tenderness, touched him with a cold iron. The only
ground for this is that Dekker, in his savage Satiro Mastix; or, _The
Untrussing of the Humourous Poet_, makes no reference to the "Tyburn
T." One fancies that Ben speedily acquired a trick of carrying his hand
so that the mark was not readily seen, or he may have cut or burnt it
out as others did. All the same, the best evidence shows it to have
been there.

In the reign of James I. another change was made. Women got the benefit
of clergy in certain cases, and afterwards they were put on the same
footing as men. Then in 1705 the necessity for reading was abolished,
and in 1779 so was branding.

But another process was going on all this time. A great and
ever-increasing number of crimes were declared to be without benefit
of clergy. The selection was somewhat capricious. Among the exempted
felonies were abduction with intent to marry, stealing clothes off
the racks, stealing the kings' stores, and so on. Naturally the whole
subject fell into inextricable confusion, and when it was abolished
in 1827, even pedants must have given a sigh of relief. One detail
escaped the reformer: since the time of Edward VI. every peer ("though
he cannot read," saith the statute) enjoyed a privilege akin to that of
clergy, and it was not till 1841 that this last vestige of the system
vanished from the statute-book. I will only add that, in its details,
"benefit of clergy" was even more grotesque and fantastic than it has
here been possible to set forth.



PEINE FORTE ET DURE


In England during many centuries a prisoner was called to the bar
before trial and enjoined to hold up his right hand, by which act he
was held to admit himself the person named in the indictment. The
clerk then asked him, "How say you, are you guilty or not guilty?" If
he answered, "Not guilty," the next question was: "Culprit, how will
you be tried?" to which he responded, "By God and my country." "God
send you a good deliverance," rejoined the official, and the trial
went forward. If the accused missed any of these responses, or would
not speak at all, and if the offence were treason or a misdemeanour,
his silence was taken for confession of guilt, and sentence was passed
forthwith. If the charge were felony, a jury was empanelled to try
whether he stood "mute of malice," or "mute by the visitation of
God." If this last were found, the trial went on; if the other, he
was solemnly warned by the judges of the terrible consequences summed
up by Lord Coke (trial of Sir Richard Weston in 1615, for Sir Thomas
Overbury's murder) in the three words--_onere, frigore, et fame_.
The proceedings were most commonly adjourned to give him time for
reflection; but if after every exhortation he remained obdurate, then
he was adjudged to suffer the _peine forte et dure_. The judgment of
the Court was in these words: "That you return from whence you came,
to a low dungeon into which no light can enter; that you be stripped
naked save a cloth about your loins, and laid down, your back upon the
ground; that there be set upon your body a weight of iron as great as
you can bear--and greater; that you have no sustenance, save on the
first day three morsels of the coarsest bread, on the second day three
draughts of stagnant water from the pool nearest the prison door, on
the third day again three morsels of bread as before, and such bread
and such water alternately from day to day; till you be pressed to
death; your hands and feet tied to posts, and a sharp stone under your
back."

There is but one rational way to discuss an institution of this sort.
Let us trace out its history, for thus only can we explain how it
came to have an existence at all. For the prisoner himself there was
usually a very strong reason why _he_ should stand mute. If he were
convicted of felony his goods were forfeited; while in case of capital
felony, the result of attainder was corruption of blood so that he
could neither inherit nor transmit landed property. Often he must
have known that conviction was certain. Had he fondness enough for
his heirs--children or other--to make him choose this hideous torture
instead of milder methods whereby the law despatched the ordinary
convict from this world? Well, very many underwent the punishment.
Between 1609-1618 the number was thirty-two (three of them women) in
rural Middlesex alone. "_Mortuus en pen' fort' et dur'_," so the clerk
wrote for epitaph against each name, and something still stranger than
the penalty itself is revealed to us by an examination of the original
records. Many of the culprits were evidently totally destitute, and
these underwent the _peine forte et dure_ from stupidity, obstinacy, or
sheer indifference to mortal suffering and death.

The custom of pressing did not obtain its full development at once, and
there is some difficulty as to how it began. A plausible explanation is
given in Pike's "History of Crime," and is supported by the authority
of the late Mr Justice Stephen. At one time a man charged with a
serious offence was tried by ordeal; but by paying money to the king,
it was possible to get the exceptional privilege of a trial by jury.
Thus, when the accused was asked how he would be tried, his answer
originally ran, "by God" (equal to by ordeal), or "by my country"
(equal to by jury), since to put yourself on the country meant to
submit yourself to this last. But trial by ordeal was abolished
about 1215, and the alternative was a privilege to be claimed, not a
necessity to be endured. Offenders soon discovered that by standing
mute and declining to claim this privilege, they put the Court in a
difficulty. The ideas of those distant days were simple exceedingly,
and a legal form had strange force and efficacy. To put a prisoner
before a jury without his consent was not to be thought of; but how
to get his consent? At first the knot was rather cut than loosened.
Thus, in some cases, the accused were put to death right off for not
consenting to be tried "according to the law and custom of the realm."
Then this was held too severe, and under Edward I., in the proceedings
of the Parliament of Westminster, occurs the earliest definite mention
of the punishment. It was enacted that notorious felons refusing to
plead should be confined in the _prison forte et dure_. Here they went
"barefooted and bareheaded, in their coat only in prison, upon the bare
ground continually night and day, fastened down with irons," and only
eating and drinking on alternate days as already set forth. It was
bad enough, no doubt, but not of necessity fatal. So the authorities
perceived, and they again cut the knot by a policy of starvation. So
one infers from the case of Cecilia, wife of John Rygeway, in the time
of Edward III. Cecilia was indicted for the murder of her husband; she
refused to plead. Being committed to prison, she lived without meat or
drink for forty days; and this being set down to the Virgin Mary, she
was thereupon allowed to go free. This procedure seems to have been
found too slow, and the increase of business at the assizes seemed like
to end in a hopeless block. Were the judges to encamp in a country town
while the prisoners made up their mind as to pleading? Something was
wanted to "mend or end" the stubborn rascals; and under Henry IV., in
the beginning of the fifteenth century, the "prison" _forte et dure_
became the "peine" _forte et dure_: with the consequence that, if the
accused declined to plead, there was an end of him in a few hours, the
provision of bread and water being a mere remnant of the older form of
sentence. This procedure lasted till 1772, when the 12 Geo. III., c.
20 made "standing mute in cases of felony equivalent to conviction."
In 1827 it was enacted by 7 and 8 Geo. IV., c. 28, "that in such
cases a plea of not guilty should be entered for the person accused."
The curious formal dialogue between the clerk and the prisoner was
abolished that same year. Something stronger than exhortation was now
and again used before the obdurate prisoner was sentenced to pressing,
thus at the Old Bailey in 1734, the thumbs of one John Durant were tied
together with whipcord, which the executioner strung up hard and tight
in presence of the Court; he was promised the _peine forte et dure_
if this did not answer, but upon a little time being given him for
reflection, he speedily made up his mind to plead not guilty.

It is difficult to explain the distinction drawn between ordinary
felony on the one hand and treason and misdemeanours on the other.
Perhaps the explanation is that the last, being much lighter offences,
were never made the subject of trial by ordeal, and that treason
being a crime endangering the very existence of the State, a sort of
necessity compelled the judge to proceed in the most summary manner.
No student of English History needs to be reminded that a trial for
treason resulted almost as a matter of course in a conviction for
treason. Peers of the realm had many privileges, but they were not
exempt from the consequences of standing mute. Nor, as already noted,
were women. Perhaps it were unreasonable to expect a criticism of the
system from contemporary judges or text writers; but what they did say
was odd enough; they did not condemn pressing, but they highly extolled
the clemency of the law which directed the Court to reason with and
admonish the accused before it submitted him to this dread penalty.

I shall now give some examples of practice. Fortunately (or
unfortunately you may think as you read) we have at least one case
recorded in great detail, though, curiously enough, it has escaped the
notice of an authority so eminent as Mr Justice Stephen.

Margaret Clitherow was pressed to death at York on Lady Day, March
25th, 1586, and the story thereof was written by John Mush, secular
priest, and her spiritual director. Margaret's husband was a
Protestant, though his brother was a priest, and all his children
appear to have been of the older faith. Accused of harbouring Jesuit
and Seminary priests, of hearing mass, and so on, she was committed
to York Castle, and in due time was arraigned in the Common Hall.
In answer to the usual questions, she said that she would be tried
"by God and by your own consciences," and refused to make any other
answer. It was sheer obstinacy: she was a married woman, and she could
have lost nothing by going to trial. But she coveted martyrdom, which
everybody concerned appears, at first at any rate, to have been anxious
to deny her. It was plainly intimated that if she would let herself
be tried she would escape: "I think the country," said Clinch, the
senior judge, "cannot find you guilty upon the slender evidence." The
proceedings were adjourned, and the same night "Parson Whigington, a
Puritan preacher," came and argued with her, apparently in the hope of
persuading her to plead; but he failed to change her purpose; the next
day she was brought back to the Hall. Something of a wrangle ensued
between herself and Clinch, and in the end the latter seemed on the
point of pronouncing sentence. Then Whigington stood up and began to
speak; "the murmuring and noise in the Hall would not suffer him to be
heard;" but he would not be put off, and "the judge commanded silence
to hear him." He made a passionate appeal to the Court ("Did not
perhaps God open the mouth of Balaam's ass?" is the somewhat ungracious
comment of Father Mush.) "My lord," said he, "take heed what you do.
You sit here to do justice; this woman's case is touching life and
death, you ought not, either by God's law or man's, to judge her to die
upon the slender witness of a boy;" with much more to the same effect.
Clinch was at his wits' end, and went so far as to entreat the prisoner
to plead in the proper form: "Good woman, I pray you put yourself to
the country. There is no evidence but a boy against you, and whatsoever
they (the jury) do, yet we may show mercy afterwards." She was moved
not a whit; and then Rhodes, the other judge, broke in: "Why stand
we all day about this naughty, wilful woman?" Yet once again she was
entreated, but as vainly as before; it was evident that the law must
take its course; and "then the judge bade the sheriff look to her,
who pinioned her arms with a cord." She was carried back to prison
through the crowd, of whom some said, "She received comfort from the
Holy Ghost;" others, "that she was possessed of a merry devil." When
her husband was told of her condemnation, "he fared like a man out of
his wits, and wept so vehemently that the blood gushed out of his nose
in great quantity." Some of the Council suggested that she was with
child. There seems to have been some foundation for the remark, at any
rate, Clinch caught eagerly at the idea. "God defend she should die if
she be with child," said he several times, when the sheriff asked for
directions, and others of sterner mould were pressing for her despatch.
Kind-hearted Whigington tried again and again to persuade her; and the
Lord Mayor of York, who had married her mother ("a rich widow which
died before this tragedy the summer last"), begged her on his knees,
"with great show of sorrow and affection," to pronounce the words
that had such strange efficacy. It was all in vain, so at last even
Whigington abandoned his attempt, and "after he had pitied her case
awhile, he departed and came no more."

Her execution was fixed for Friday, and the fact was notified to her
the night before. In the early morning of her last day on earth she
quietly talked the matter over with another woman. "I will procure,"
the woman said, "some friends to lay weight on you, that you may be
quickly despatched from your pain." She answered her that it must not
be. At eight the sheriffs came for her, and "she went barefoot and
barelegged, her gown loose about her." The short street was crowded
with people to whom she dealt forth alms. At the appointed place,
one of the sheriffs, "abhorring the cruel fact, stood weeping at the
door;" but the other, whose name was Fawcett, was of harder stuff. He
"commanded her to put off her apparel," whereupon she and the other
woman "requested him, on their knees, that she might die in her smock,
and that for the honour of womankind they would not see her naked."
That could not be granted, but they were allowed to clothe her in a
long habit of linen she had herself prepared for the occasion. She now
lay down on the ground. On her face was a handkerchief. A door was laid
upon her. "Her hands she joined towards her face"; but Fawcett said
they must be bound, and bound they were to two posts, "so that her body
and her arms made a perfect cross." They continued to vex the passing
soul with vain words, but at last they put the weights on the door. In
her intolerable anguish she gave but a single cry: "Jesu! Jesu! Jesu!
have mercy upon me!" Then there was stillness; though the end was not
yet. "She was in dying one quarter of an hour. A sharp stone as much as
a man's fist put under her back, upon her was laid a quantity of seven
or eight hundredweight to the least, which, breaking her ribs, caused
them, to burst forth of the skin." It was now nine in the morning, but
not till three of the afternoon were the braised remains taken from
the press.

Stories of violence and cruelty serve not our purpose unless they
illustrate some point, and I shall but refer to two other cases.

Major Strangeways was arraigned in 1658 (under the Commonwealth be
it noted) for the murder of his brother-in-law. In presence of the
coroner's jury he was made to take the corpse by the hand and touch its
wounds, for it was supposed that, if he were guilty, these would bleed
afresh. There was no bleeding, but this availed him nothing, and he was
put on his trial at the Old Bailey in due course. He refused to plead,
and made no secret of his motive; he foresaw conviction, and desired
to prevent the forfeiture of his estate. He was ordered to undergo the
_peine forte et dure_. The press was put on him angle-wise; it was
enough to hurt, but not to kill, so the bystanders benevolently added
their weight, and in ten minutes all was over. The dead body was then
displayed to the public.

Again, in 1726, a man named Burnworth was arraigned at Kingston for
murder. At first he refused to plead, but after being pressed for an
hour and three-quarters with four hundredweight of iron, he yielded. He
was carried back to the dock, said he was not guilty, and was tried,
convicted, and hanged. There was at least one case in the reign of
George II.--but enough of such horrors.



A PASSAGE IN SHAKESPEARE

FINES AND RECOVERIES


"Is this the fine of his fines, and the recovery of his recoveries, to
have his fine pate full of fine dust? Will his vouchers vouch him no
more of his purchases, and double ones too, than the length and breadth
of a pair of indentures?" Thus the Prince of Denmark moralising in the
graveyard scene in Hamlet over the skull of a supposed lawyer: with
more to the same effect, all showing that Shakespeare had a knowledge
of law terms remarkable in a layman, and that he used them with curious
precision. In the huge body of Shakespearian literature there are
special works (one by Lord Chancellor Campbell) on the fact, which
has been used to buttress up the Baconian authorship theory (indeed,
it is the only positive fact at all in point). Again, it has been
conjectured that the dramatist spent some time in a lawyer's office,
and that phrases from the deeds he engrossed stuck in his memory. It is
far more likely that, being the man of his age he was, he would read
in and round the law as well as much else for its own sake, and that
fines and recoveries were so odd in themselves, and so excellently
illustrative of English history and procedure, that they fairly took
his mighty fancy.

Recoveries were already some two hundred years old in his time, and,
to judge from the tone of the passage, people must even then have held
them in derision. But they were to last full two hundred years more;
for not till 1833 did they vanish from the scene. Recoveries were
methods of disentailing an estate by means of a complicated series of
fictions. They arose in this way:--Before 1285, when land was given
to a man and the heirs of his body, the judges ruled that, the moment
a son was born, the father held the estate as a simple freehold,
which he could sell or make away with very much as he chose. The
great landowners were ill-content at this; they meant their tenants
to enjoy their estates only as long as they rendered useful service
in return, and if issue failed a man, they thought the land should
revert to his lord on his death. Hence in that year an act procured
by their influence, called _De Donis Conditionalibus_, or the Statute
of Westminster the Second (13 Ed. I., c. 1), created the Estate
Tail (_i.e._ _Taillé_, or restricted). It provided that land given
to a man and his heirs as above, reverted to the original donor on
failure of the donee's issue. Blackstone waxes eloquent over the evils
that ensued. Children declined obedience to a father who could not
disinherit; farmers lost their leases, which had no force against the
heir; and creditors were defrauded of their debts, which constituted
no charge on the land, nay, treasons were fostered, insomuch as the
traitor's interest lapsing at his death, nothing was left for the king
to seize. Yet it was not till the reign of Edward IV. that a device
was found to evade the Statute. _Taltarum's Case_ was decided in 1472.
It is loosely said that this established the validity of recoveries,
but they were in use some time before, and Sir Frederick Pollock will
have it that it was the oddity of the name which made a landmark
of the decision. A Recovery was a sort of friendly or fictitious
action, whereby the estate was adjudged to an outsider, whose claim,
though baseless--if one did not look beyond the four corners of the
action--was acquiesced in by the nominal defendant.

The mediæval lawyer was usually a priest, and he had found those
entails grievous obstacles in the way of the Church's aggrandisement.
Perhaps, too, as the country grew in wealth, so rigid a law of
settlement bore hard on an ever-waxing commercial class. To repeal
the Statute seemed impossible, but the great landowners, while proof
against force and impermeable to argument, were not hard to outwit. A
legal complication passed their understanding; and this one, however
brazen, had the patronage of many powerful interests. Thus, and thus
only, may the fact of their acquiescence be explained.

And now let us trace out the steps in a common recovery with "double
voucher." The judges had already made one preparatory breach in the
law. A tenant in tail could dispose of his estate if he left other
lands of the same value; for these his heirs held under the same
conditions as the original property. The principle of this decision was
ingeniously used as a lever to overthrow the system.

Suppose A, tenant in tail, had contracted to sell his land to B: he
began by formally disposing of it to C, usually his attorney, and
technically called "Tenant to the _præcipe_," or writ. Then B commenced
an action in the Common Pleas against C to recover the estate in
question, which, he asserted, had been wrongfully taken from him. C,
instead of defending the action, "vouched to warranty" A: that is, he
called in A to defend, on the ground that the said A had covenanted to
support his title; but A, instead of defending the action, "vouched to
warranty" D. This last, called the "common vouchee" (in the form in
Blackstone he appears as "Jacob Morland"), was always the "Crier to the
Court," and for playing his part received the modest fee of fourpence
on each recovery. At first he (Jacob) made a great show at fight; he
denied all B's statements, and "put himself upon the country:" _i.e._
he demanded that the case should go before a jury for trial. B then
craved leave "to imparl" (_i.e._ to have a private conference with
Jacob), and the proceedings were solemnly adjourned. When they were
resumed Jacob was not to be found: "he hath (it was adjudged) departed
in contempt of the Court." Evidently, or so it seemed, he had no answer
to make. Then B's claim was allowed; C was to have of the lands of A
a quantity equal to what he had nominally lost; whilst A, in his turn,
was to have the same remedy against Jacob, who, having no means at all,
cheerfully accepted much paper responsibility. Then a writ was issued
to the sheriff of the county wherein the lands were situate, directing
him to give possession to B, whose title was constituted by a record of
all the aforesaid transactions.

As the centuries went by the proceedings became ever less substantial,
the action was always commenced by the issue of a writ in the usual
way, but most of the other steps were only taken on paper. Sir
Frederick Pollock says, that if the disentailer were a peer, a sergeant
was actually briefed to move the court in the matter: also, one must
note that lands held from the crown were never subject to this process
(nor can they now be disentailed without a special act of Parliament).
By another barefaced fiction, colonial property might be disentailed
in England. The deed roundly asserted that the island of Antigua (or
wherenot) lay in the parish of St Mary, Islington--the operation of
this geographical miracle giving jurisdiction to the Court of Common
Pleas. One would suppose that something simpler might have served; but
though laymen jeered, lawyers regarded these quaint formalities with
strange reverence. My Lord Coke mentions with solemn reprobation a
counsel named Hoord who scoffed thereat in the House of Lords, and whom
a judge gravely rebuked as not worthy to be of the profession of the
law, for that he "durst speak against common recoveries;" and as late
as 1820, Thomas Coventry, Esq., of Lincoln's Inn, concludes his learned
treatise on the subject with an eloquent if slightly confused protest
against any change, "which could know no end but an apparent confusion,
or clearing away a path for the access of some modern Pretender to
strip the ivy from the venerable oak of our boasted constitution, the
only emblem that remains of its antiquity and endurance."

And now for a word on fines. These were so called for that they made
an end of a controversy. They were simpler and even more ancient than
recoveries. A fictitious action was begun by the purchaser against the
vendor of an estate, wherein the latter soon gave in: the case was
compromised, a fine was paid to the Crown, upon the Court giving its
consent to this termination of the proceedings, and the record thereof
became the purchaser's title. They were likewise used to bar entails,
though they were not so effectual as recoveries. One of the first Acts
of the Reform Parliament of 1833 was the Statute for the Abolition of
Fines and Recoveries. It was a mere question of procedure, for the
law itself remained unaltered: but disentailment was effected by the
enrolment of a deed in Chancery. And now the dust lies thick on shelves
of text-books--a whole system of learning, full of intricate details,
the creation of centuries of perverse ingenuity.

And the land-owners? These, too, long since availed themselves of the
dark and subtle devices of the conveyancer. Sir Orlando Bridgman, a
great lawyer of the Commonwealth, and finally Chief Justice of the
Common Pleas under Charles II., invented and perfected the system of
family settlements which to-day secures the secular interests of our
great historic houses, as well as, if less directly than, any enactment
could do.



THE CUSTOM OF THE MANOR


Has chance or necessity ever opened to you the charter-chest of the
respectable solicitor in some country town? Then, among his records,
you have noted an interminable series of parchment volumes--very thick,
very closely written, some centuries old, and one in current use. These
are the court-rolls of the Manor of Wherenot. If you can spell out the
beautifully written mediæval characters, you are sure to light on many
a quaint record of by-gone folk and their ways, for, better than aught
else, the manor and its muniments preserve for us the English past.

Manors, they used to say, arose in this fashion. A great lord obtained
a piece of land from the King; part he disposed of to tenants who held
of him in freehold (this sub-infeudation was stopped by the statute
_quia emptores_ in 1290); the rest was his domain, on part of which he
built the manor house, another part was cultivated by villeins, then
the cotters had dwellings with portions of land, and the residue was
waste, where the folk of the manor pastured their cattle, gathered
fuel, and made their ways. Sometimes these villeins were slaves, but
each had his patch of soil, wherefor he rendered some servile office to
his lord, ploughing his land, garnering his crops, or such like. The
business of the manor was transacted in two courts, the Court Baron
and the Customary Court. The first was attended by the freeholders,
who themselves constituted the Court; the second by the villeins,
who merely hearkened to and witnessed the doings of the lord or his
steward. When a villein died, the fact that the new tenant had such and
such a field on condition of rendering so many days' labour yearly was
noted in the records or roll of the Customary Court, and this roll,
or a copy of it, becoming his title, he was dubbed a copyholder. In
theory he was a mere tenant at the will of the lord, but time fettered
the lord's will, until the principle was evolved that it must be
exercised according to the custom of the manor, for "custom" as Lord
Coke put it, "is the life of the manor," and so it came about that the
holder had fixity of tenure while he did his service. His position
steadily improved, the slave became free, the servile toil a money
payment, and now the court agenda merely register changes of title.
This account of the manor may serve for description, but does not
represent the real origin, which has not yet been exactly ascertained.
It was a fragment of Old England, with a lord usually of Norman race
as head, and the relations between head and members elaborated and
controlled by the theories and devices of the mediæval lawyer. As
manorial law was custom, old local usages were preserved unaltered;
thus, whilst the root idea of feudalism was that the eldest son should
inherit his father's land, and the manor itself did so descend, within
it an extraordinary diversity of usage obtained. By a custom similar
to that of Gavelkind (in Kent), the copyholder's estate was sometimes
parted equally among all his sons. In other places, Borough-English
prevailed, that is, the youngest son took everything, to the exclusion
of his elder brothers; nay, by an odd application of the maxim "better
late than never," a posthumous child ousted the brother already in
possession; or, again, the widow or widower inherited. When the tenant
died, the lord had a right to seize his best chattel (usually a beast),
this was called a Heriot, and it is yet here and there exacted. Many
customs are old Saxon, many customs were invented, or at any rate
twisted into fantastic rights from mere whim or a not very cleanly
sense of humour, but here one must often merely accept the fact, for to
try it by the rule of right reason were absurd.

Most manors were held of the Crown, in return for services sometimes of
the oddest character; thus, Solomon De Campis (or Solomon At-Field)
had land in Kent on condition that, "as often as our lord the King
would cross the sea, the said Solomon and his heirs should go along
with him to hold his head on the sea, if it was needful;" and certain
jurors solemnly present on their oath that "the aforesaid Solomon fully
performed the aforesaid service." Our early kings provided against
every possible contingency. One tenant enjoyed land by the service
of holding the King's stirrup when he mounted his horse at Cambridge
Castle. Another must make _hastias_ in the King's kitchen on the day
of his coronation. The glossaries are dumb as to this mysterious
dish, though the learned darkly hint at haggis! Or was it "a certain
potage called the mess of _Giron_," which, being enriched with lard,
was called _Maupygernon_--which last is possibly mediæval Welsh for a
haggis? Thomas Bardolf, who died, lord of Addington, in 5 Edward III.,
was pledged to compound three portions of this dainty dish against
Coronation Day, and serve them up smoking hot, one to the King, one
to his Grace of Canterbury, and the third "to whomsoever the King
would." Other manors were held on the tenure of presenting to the
King a white young brach ("lady the brach" of _King Lear_) with red
ears; of delivering a hundred herrings baked in twenty pasties; of
finding the King a penny for an oblation, whenever he came to hear
mass at Maplescamp, in Kent: gifts of roses, falcons, capons (which
last dainties your mediæval sovereign held in special favour), were
abundant. But how to riddle this one? The manor of Shrivenham, in
Berks, was held (_temp._ Edward III.) by the family of Becket, whose
head, whenever the King passed over a certain bridge in those parts,
must present himself with two white capons, whereto he directed the
royal attention in choice mediæval Latin, "Behold," he said, "my lord,
these two capons, which you shall have another time, but not now,"
which pleasantry reminds one of the current vulgarism, "Will you have
it now, or wait till you get it?" The service of the Dymocks, owners of
Scrivelsby in Lincoln, as King's champions, and of the Duke of Norfolk,
as Earl Marshal of England, curious enough in themselves, are too
notorious for this crowded page.

A few quaint tenures are of quite modern origin. Thus the honour of
Woodstock (an honour was a lordship over several manors: so "Waverley
Honour" in Scott's great romance) is held by the tenure of presenting
a banner each second of August at Windsor Castle; that being the
anniversary of Blenheim, fought in 1704; and on each 18th of June the
Duke of Wellington must likewise send to the same place, for the estate
of Strathfieldsay, a tri-coloured flag to commemorate Waterloo. The
last century legal antiquary pricked up his ears at a fine scandal
which he fondly imagined in connection with the manors of Poyle and
Catteshill, both near Guildford. Their holders were bound to provide
a certain number (twelve in one instance) of young women, called
_meretrices_, for the service of the royal court. Dry-as-dust shook
his solemn head, invented pimp-tenure (a "peculiarly odious kind of
tenure" he explained), and the forerunner of the man who writes to _The
Times_ (it was then to the _Gentleman's Magazine_) cracked some not
particularly choice jokes on the subject. A wider knowledge restored
the moral character of the King, his lords, and the much-slandered
young women, whose decent dust may now repose in peace. In mediæval
Latin the word was widely used for the female servant general or
special, and these were, it seems, neither more nor less than
laundry-maids.

Manors of an early date were ofttimes held under other manors on
equally whimsical conditions. A snowball at summer and a red rose at
Christmas are extravagantly picturesque. A hawk was a common rent; but
in one case it was carried to the Earl of Huntingdon's house, by the
yielder, attended by his wife, three boys, three horses, and three
greyhounds; and these must be housed for forty days at the earl's
expense, while his countess must give the lady her second best gown.
Again, the tenant of Brindwood in Essex, upon every change, must come
with his wife, his man, and his maid, all a-horseback to the rectory,
"with his hawke on his fist and his greyhound in his slip"; he blows
three blasts with his horn, and then receives curious gifts, and
thereafter departeth. The lord of the Manor of Essington, in Stafford,
must bring a goose every New Year's Day to the head manor-house at
Hilton. Here he drives it about the fire, which Jack of Hilton blows
furiously, and (one regrets to add) most improperly. But Jack may be
forgiven, for he is but "an image of brass about twelve inches high,"
whose description you read at length in old Thomas Blount, the great
recorder of all these mad pranks.

The holding of Pusey in Berks by the Pusey Horn, gifted, it is said,
by King Canute, is well-known. Sir Philip de Somerville, knight, was
bound to hunt and capture the Earl of Lancaster's _greese_ (wild swine)
for my lord's larder upon St Peter's Day in August. This he did till
Holy-Rood Day, when he dined with the steward, and after dinner "he
shall kiss the porter and depart." This same Sir Philip de Somerville
held the Manor of Whychenover at half terms from the Earl on condition
that there ever hung in his hall one bacon flitch to be assigned to a
happy married couple yearly in Lent, after a variety of ceremonies like
those in the more famous case of Dunmow: the disposal of the flitch
there being likewise according to "the custom of the manor."

In the customs that made up the inner life of the manor one finds a
diversity too great for classification. However, those old English
folk were a merry lot; with usages not sad nor savage, but having much
sensible joy in good meat and drink. At Baldock, in Hertfordshire,
the Customary Court was holden at dinner-time, whereto every baker and
vintner within the bounds must send bread and ale which the steward and
his jury "cam' to pree," and presently gave their verdict "if these
be wholesome for man's body or no." To the Manor of Hutton Conyers
there was attached a great common, where many townships pastured their
sheep; and the shepherd of each township "did fealty by bringing to the
Court a large apple pie, and a twopenny sweet cake." For refreshment,
"furmity and mustard, well mixed in an earthen pot, is placed before
the shepherds, which they sup with spoons provided by themselves, and
if any forget his spoon then, for so the customary law wills it, he
must lay him down upon his belly, and sup the furmity with his face to
the pot or dish." And the custom further permits the bystanders "to dip
his face into the furmity," to the great delight of all present. To
finer issues is the money provided by Magdalen College, Oxford, for
certain manors of theirs in Hampshire, _pro mulieribus hockantibus_, as
the dog Latin of the college accounts hath it. On Hock Day, annually,
"the women stop the ways with ropes, and pull passengers to them,
desiring something to be laid out in pious uses": the men having hocked
the women after the same fashion the day before. There are traces of
this usage further afield than Hampshire. Not less jovial were the
tenants of South Malling, in Kent, who were bound to pay scot-ale,
which fund they agreeably expended in "drink with the bedel of the Lord
Archbishop." The case of Stamford, in Lincoln, is noteworthy as showing
the origin of one peculiar custom. In the time of King John, William,
Earl Warren, was lord of the place. One day he saw from his castle wall
"two bulls fighting for a cow in the castle meadow;" their bellowing
attracted all the butcher's dogs in the place; and these, in company
with a host of rag-tag and bobtail, chased one of the champions in
and out the town till he went mad; all which so delighted Earl Warren,
that he forthwith gifted the common to the butchers on condition that
they provided a mad bull six weeks before Christmas Day, "for the
continuance of that sport for ever."

It is impossible even to conjecture the origin of other customs. In
most manors, when a copy-holder died, his widow had in free-bench (or
what the common law calls dower) the whole or part of his lands. There
was one restriction: she must remain "sole and chaste." Yet, if she
forgot herself, her case was not altogether past praying for in the
Manor of Enborne in Berkshire. At the next Customary Court she appeared
strangely mounted upon a black ram, her face to the tail, the which
grasping in her hand, she recited, sure the merriest, maddest rhyme it
ever entered into the heart of man to conceive--

  "Here I am
  Riding upon a black ram"----

Alas, that the rest must be silence! The _Spectator_, greatly daring,
gives it in full; but that was as far back as November 1st, 1714. A
like custom ruled the Manor of Kilmersdon, in Somerset, where the
doggerel, if briefer and blunter, is at least equally gross. And here
one must refer to the _jus primæ noctis_, that lewd historic jest
which, in England at any rate, was ever a sheer delusion. True that on
the marriage of a villein's daughter a fine was paid to the lord, but
this was not to spare her blushes, but as compensation to him for the
loss of her services--inasmuch as she took the domicile of her husband.
Nay, the custom of the manor usually made for morality. There was a
fine called child-wit exacted on the birth of an illegitimate child,
sometimes from the infant's father, or, again, from the father of its
mother. Nay, in one or two places the unlucky lover forfeited all his
goods and chattels. On the other hand a curious privilege attached to
an oak in Knoll Wood in the Manor of Terley in Staffordshire: "In case
oath were made that the bastard was got within the umbrage or reach of
its boughs," neither spiritual nor temporal power had ought to say, and
the man got off scot free.

The curious tenacity of the manorial custom is well shown in the case
of Pomber in Hampshire: the Annual Court, in accordance with immemorial
usage, must be held in the open air, but the inconvenience of this was
obviated by an immediate adjournment of the proceedings to the nearest
tavern. The records were not kept on parchment, but "on a piece of wood
called a tally, about three feet long and an inch and a half square,
furnished every day by the steward." In time these strange muniments
became worm-eaten and illegible; and, as occupying much needed room,
were thrown to the flames by the dozen. (It will be remembered that the
old Houses of Parliament were set on fire and destroyed on the burning
of the exchequer tallies, October 1834.) Some of the survivors were
produced as evidence in a case heard at Winchester, which fact provoked
"a counsellor on the opposite side of the question" to dub it "a wooden
cause." The obvious retort--that his was a wooden joke--seems lacking;
but possibly this gem of legal humour emanated from the Bench: how
often one has seen its like!

Still stranger was the Lawless Court of the Honour of Raleigh: it
was held in the darkness of cockcrow; the steward and the suitors
(i.e., those bound to attend the Court) mumbled their words in scarce
audible fashion; candles, pens, ink, were all forbidden; for, as the
authorities vaguely put it, "they supply that office with a coal." To
ensure a punctual attendance, the suitor "forfeits to his lord double
his rent every hour he is absent." The learned Camden affirms it was
all to punish the aboriginal tenants for a conspiracy hatched in the
darkness of the night; again he sees in it a remnant of an old Teutonic
custom; and in the end you suspect that he knows as little as yourself.

Then there was the white bull which the tenants of the monks of Bury
St Edmunds were bound by their leases to provide, that childless
women might present it to the shrine of the martyred king of East
Anglia; there was the fine called "thistletake," which the owner
of beasts crossing the common, and snatching at the "symbol dear,"
must pay to the lord of the Manor of Halton; there are the "three
clove-gillieflowers" which the tenants of Hame in Surrey shall render
at the King's coronation; there are all sorts of minute details as to
house-bote and fire-bote, and common of piscary and turbary. One more
custom and we have done. In the time of Richard the Lion-heart, Randal
Blundeville, Earl of Chester, was on one occasion sore pressed by the
Flintshire Welsh. He summoned to his aid his constable of Cheshire,
one Roger Lacy, "for his fierceness surnamed Hell." It was fair-time
at Chester, and Roger, putting himself at the head of the motley crowd
marched off to his relief. The Welsh heard, saw, and bolted, and the
grateful earl there and then promulgated a charter granting to Roger
and his heirs for ever, "power over all fiddlers, lechers, light
ladies (the charter has a briefer and stronger term), and cobblers in
Chester." Under Henry VII. we find the then grantee exacting from the
minstrels (_inter alia_) "four flagons of wine and a lance," whilst
each of the aforesaid ladies must pay fourpence on the feast of St
John the Baptist. Under Elizabeth, various acts were aimed at rogues,
vagabonds, and sturdy beggars, but always with a saving provision as
to this Chester jurisdiction, and in later times the Vagrant Act (17
George II., cap. 5) had a like reservation.



DEODANDS


At one time or other you have looked, one supposes, into that huge
collection of curiosities and horrors known as the State Trials. You
may possibly have noted the form of indictment in the murder cases;
and if so, one odd detail must have impressed you. Having set forth
the weapon used by the murderer, the document invariably goes on to
estimate its money value: for, having been instrumental in taking human
life, it was forfeit to the Crown, and it or its price had to be duly
accounted for. It was called a Deodand, but the name was applied to
many things besides arms used with malice aforethought. Thus, a man
died by misadventure: then was the material cause active or passive?
For instance, his end might come because a tree fell on him, or
because he fell from a tree, in either case the wood was a deodand,
and so forfeited. The name is from _Deo dandum_--a thing that must be
offered to God, and this because in early mediæval times the Church or
the poor had the ultimate benefit.

For the origin of the custom one must go far back. In Hebrew, Greek,
and Roman legislation, the physical object that caused the loss of
human life was held accursed, and hence was destroyed or forfeited.
In England a thing became a deodand only when the coroner's jury (or
more rarely some other authority) had found it the cause of death;
which death, moreover, must happen within a year and a day of the
accident. If it did, the thing was seized, no matter where it was, or
who had it. In default of delivery the township was liable, and it
was the Sheriff's duty to get the value therefrom. If a man had _per
infortunium_ (or without blame) used the article, the jury found that
as a fact, and he was acquitted, or rather pardoned; but in strict
law his goods were forfeit as late as 1828. And not everything causing
death was a deodand. If a man fell into the water, was carried under a
mill-wheel, and perished, the wheel was forfeit but not the mill. The
distinction was sometimes difficult. Here are two actual examples. A
cart and a waggon came into collision; the man in the cart was pitched
out under the waggon-wheels and died. The two vehicles, all they held,
the horses that drew them, were adjudged deodands, "because they all
moved _ad mortem_." Again, a ship was hauled up for repairs, toppled
over on a shipwright at work, and was declared forfeit. Your mediæval
lawyer was nothing if not subtle, and he soon raised doubts enough
to gravel a schoolman. He questioned if things fixed to the freehold
could become deodands. Suppose a man were ringing a church bell, and
the rope, getting twisted round his windpipe in some strange fashion,
choked the life out of him: how then? The rope seemed past praying
for, but what about the bell? The learned differed, yet all agreed that
if the timber holding the bell got loose, and came crashing down on the
sexton, the royal treasury, of clear right, pounced on rope, and bell,
and timber. How furiously, with what a wealth of legal learning and
invention, one fancies the utter barristers must have "mooted" those
fascinating points after supper in the halls of their ancient Inns!

The decisions were hard to reconcile. Thus, in Edward the Third's time,
it was held that if a man fall to his death from his horse against the
trunk of a tree, the horse is forfeit, but not the tree. But in the
same reign a distinction was drawn. One William Daventry, a servant to
John Blaburgh, engaged in watering a horse, was grievously hurt. He was
carried to his master's house "_apud Fleet Street in suburbio London_",
and there at even he died. At first the horse was adjudged a deodand,
but Blaburgh got the inquisition quashed on the ground that the horse
had not thrown his rider. Again, if a lad under fourteen fell from a
cart and was killed, there was no deodand: as some opined, because the
masses might be dispensed with, in the case of one presumed sinless
from his tender age, and the proper end of deodands was to procure
masses; but others urged it was "because he was not of discretion to
look to himself." The further question--what possible difference this
could make--was not raised; for even a mediæval lawyer's speculation
must stop somewhere. But how if the slayer were a lad? A Cornish case,
_temp._ 1302, supplies an answer. Jack of Burton, a boy of twelve, had
a mind to draw the bow. He rigged up a target in a house, and shot
thereat from the outside. One arrow missed the mark, and, glancing off
a hook, transfixed a woman called Rose. Rose died forthwith, and Jack
fled in horror. It was held that _le Hoke_ was a deodand, but that the
boy, on account of his age, was no whit to blame, and (with a touch of
kindliness) a proclamation was made far and wide that he might return
in safety. In this connection one recalls the awkward misadventure of
Abbot, Archbishop of Canterbury, in the reign of James I., who, being
out a-hunting, killed, by pure accident, Peter Hawkins, his keeper.
He had many enemies, and all sorts of ecclesiastical and temporal
penalties were threatened: at least, it was said, let all his goods be
confiscate. But the King turned a deaf ear to these suggestions: he
comforted the unlucky prelate with kindly words, and a full pardon,
dated 26th September 1621, removed all possible danger from his
reverend person.

If a man met his death afloat, there was deodand or no deodand as the
water was fresh or salt, for these rules had no force on the high
seas or in tidal rivers: because, said some, "there were so many
deaths at sea." "Nay," said others, "how forfeit the ocean?" "But at
least," it was replied, "one could take the ship"----but here again
speculation must stop. Although deodands first went to the Crown, and
were properly applied to pious or charitable uses, yet they were often
granted to lords of manors: so often, indeed, that one of the few
references to them in English literature--a couplet in Samuel Butler's
_Hudibras_--treats this as the general rule.

  "For love should, like a deodand,
  Still fall to the owner of the land."

This owner was not seldom exacting, and his claim was met in
characteristic English fashion. The coroner's jury returned the
value of the deodand at next to nothing, _e.g._, "a horse, value
three shillings," and the Court of "King's Bench" refused to disturb
the finding. Hence one absurdity balanced another, and the doctrine
was long defended. In 1820, Joseph Chitty, in his standard work on
_Prerogatives_, maintains that "the forfeiture is rational so far as it
strengthens the natural sensation of the mind at the sudden destruction
of human life." But in later years these mediæval ghosts began to
walk again to some purpose. In 1840 the London and Birmingham Railway
Company was amerced in £2000 as a deodand! Railway directors were no
doubt convinced that 9 and 10 Vic., c. 62, which in 1846 made an end
of the whole business, came not a day too soon. Had the law of twenty
years before that been restored, there might have been some warrant
for stripping those same directors of all their property after each
railway accident, and one shudders to think of the consequences had the
coroner's jury found the plant used not _per infortunium_.

One thing must be added, many held that the instruments of a murder,
though forfeited to the Crown, were not, properly speaking, deodands,
and they quoted as illustration the curious case of one Rempston,
who forced his boat's crew to row under London Bridge _invitis corum
dentibus_ in dangerous weather. He was thrown out and drowned, and the
jury, it was said, brought in a verdict of _felo de se_, to save the
boat from forfeiture. But the weight of authority was emphatically
against this view.



THE LAW OF THE FOREST


"A stretch of land, thick planted with trees;" so you picture a
forest to yourself, but old English law held otherwise. There were
miles of woodland that were not forest at all, and acres of pasture
that were. John Manwood, the Elizabethan lawyer, still our chief
authority on the subject, defines it as "a certain territory of woody
grounds and fruitful pastures, privileged for wild beasts and fowls
of forest, chase, and warren, to rest and abide in under the safe
protection of the king." Such a preserve was exactly delimited, and
might contain villages, churches, and so forth, within its bounds,
as the New Forest does to-day. The king had certain rights over all,
yet it was mainly private property; nay, there might be spaces in it,
but not of it,--within its Bounds, but not within its Regard, as the
phrase ran,--and so exempt from its peculiar laws. Manwood gives a
picturesque, though quite erroneous derivation of the term: it was _For
Rest_ of the wild beasts; but a sounder etymology traces the word to
_foris_ (= outside), for that it was outside the jurisdiction of the
Common Law, and had codes, courts, and officers of its own. The whole
business was for centuries alike insult and wrong to the Commons of
England.

Hunting was not merely the chief amusement of our early kings: it
was a necessary pursuit for the keeping down of the wild beasts
then a real danger to the fields and their cultivators. The Forest
Charter of Canute the Dane (dated 1016) is a myth; but it is certain
that, before the Conquest, the sovereign had a peculiar--howbeit, an
undefined--property in the woodland. The Conqueror, who, according
to the Saxon Chronicle, loved the tall deer as if he had been their
father, devastated far and wide to make the New Forest; and he and his
immediate successors punished hurt done to the deer with loss of life
or limb. The Great Charter contained provisions against this odious
abuse of power, and under Henry III. a special charter of the forest
enacted that no man should lose life or limb for killing deer, at the
same time that it disafforested (_i.e._, removed from the forest to
which they had been improperly joined) vast tracts of country. After
the New there was but one other forest made in England, that was the
land round Hampton Court, afforested under Henry VIII. by Act of
Parliament.

An attempt to revive royal rights over the woodland hastened the fall
of Charles the First, and then the Commonwealth gave the forest system
its death-blow, though it was not till the time of George III. that the
great mass of enactments was formally repealed. A Court of Swainmote
lingers in the New Forest and elsewhere, and its officials, called
Verderers, albeit shorn of their ancient power and splendour, do
their quaint antics still; but by an odd, though happily not singular
inversion, those old popular wrongs are now become popular privileges;
Epping Forest, for instance, could never have become a public park
but for the Crown rights, and these same rights over the woodlands
throughout the country now yield an income which more than covers the
cost of the whole Civil List. Had the Crown looked more sharply to its
own, the profit to ourselves had been still vaster.

The forest laws, however complex in detail, were all inspired by one
consistent idea--the preservation, to wit, of the king's venison.
Even under Edward I.'s comparatively humane rule the verderer held an
inquest upon a deer found dead in the Regard, just as the coroner did
upon a man's body, and the jury found how the creature came to its end.
The very arrows gleaned there were entered in the verderer's role. The
freeholder within that charmed ground might not fell his own timber
without leave, lest he should spoil the _Cover_: nor could he turn out
his goats to browse, for they would taint the pasture; whilst he must
feed his sheep in moderation, else he committed the grievous offence of
_surcharging_ the forest.

The forest had a huge staff of officers. First was a multitude of
subordinates; foresters--who, if they kept ale-houses in the Regard,
and encouraged folk to drink therein, committed a special crime called
_Scotale_--agistors, woodwards, keepers, verminers, sub-verminers, and
what not. These haled trespassers before the Court of Attachments,
which was held every forty days. In command of them were the verderers,
constituting, with representatives from the forest townships, the Court
of Swainmote, which met thrice a year for (_inter alia_) the trial of
the more important offences. Judgment on its findings was given at
the Court of Justice Seat, held but once in the three years, under
the presidency of a Lord Chief Justice in Eyre of the Forest. There
were but two--one for the north, the other for the south of the Trent;
and inasmuch as this officer was commonly some great noble--"A man,"
says my Lord Coke, with a touch of irony, "of greater dignity than of
knowledge of the laws of the forest"--some skilled professional folk
were joined with him in the commission. The last Court of Justice Seat
was held in 1670 by the Earl of Oxford. It was a mere form: the last
but one (in 1635) had created a fine pother by its exactions.

Offences were either trespasses _in Vert_ or trespasses _in Venison_.
The Vert (= green) was of course the cover; and the destruction
thereof was called _Waste_, while _Assart_ was stubbling it up to make
ploughland: and _Purpestre_ (a most grievous business) was building on
or enclosing part of the forest. (As late as the reign of Charles I.,
Sir Sampson Darnell was heavily fined for erecting a windmill on his
own ground in Windsor Chase). Moreover, Vert might be _Over Vert_ or
_Hault-Bois_, or it might be _Nether-Vert_ or _Sous-Bois_, according as
it was underwood or not; and in either case it was _Special Vert_ if
it bore fruit, such as pears, crabs, hips, and haws, whereon the deer
might feed.

Venison, as lawyers understood it, was composed of Beasts of Forest--to
wit, the hart, the hind, the hare, the boar, and the wolf--and Beasts
of Chase. A Chase, which was like a park, but was not enclosed, might
be held by a subject; but every forest was likewise a chase and a
warren, and the beasts of chase were the buck, the doe, the martern,
and the roe. These were described with wondrous detail. The hart--"the
most stately beast which goeth on the earth, having as it were a
majesty both in its gait and countenance"--was in his first year a
Calf, in his second a Broket, in his third a Spayad, in his fourth a
Staggard, in his fifth a Stag, and in his sixth a Hart. If he escaped
the pursuit of king or queen he became a Hart Royal, which no subject
might molest.

In 1194, Richard Coeur-de-Lion hunted a noble beast out of the forest
of Sherwood into Barnsdale in Yorkshire, and there losing him, made
proclamation "that no person should kill, hunt, or chase the said hart,
but that he might safely return into the forest again." An animal thus
honoured was called a Hart Royal Proclaimed, and in the 21st of King
Henry VII., a man was indicted for taking so precious a life, but the
case apparently went off for want of technical proof of proclamation.
Your precise woodman talked of a Bevy of roes, a Richesse of marterns,
a Lease of bucks. He said that a hart harboureth, whilst a buck
lodgeth, and a hare was seated. He dislodged the buck, but he started
the hare. He would tell you that the hart belloweth, the buck groaneth,
the boar freameth; and whilst the hart had a Tail, the roe had a
Single, the boar a Wreath, and the fox a Bush (not Brush be it noted)
or Holy Water Sprinkle. Their amours (_e.g._ a fox went to clicketing),
their young, their very excrements were dignified in a long array of
special terms, the divisions and subdivisions of the deers' antlers
being enough of themselves to gravel the tyro in woodcraft.

The peace of those precious animals was elaborately safeguarded, and
it was specially forbidden "to haunt the forest" during the _Fence
Moneth_, which was fifteen days before and after Midsummer. Most
forests were surrounded by Purlieus, that is, territory which had
been disafforested. Officers called Rangers patrolled this debateable
territory to drive back the errant deer, and whilst the Purlieu-man
(namely, the freeholder therein) might hunt on his own lands, he must
call off his dogs if the beast once touched the forest. And every three
years there was a special Drift of the forest, which was a sort of
census of the venison. A man taken _With the Manner_ (Main Ouverte),
that is, in the act of doing for the deer, was attached without bail.
The offender might thus be caught red-handed in four ways:--(1)
in _Dog-Draw_ he was chasing a wounded beast with hounds; (2) in
_Stable-Stand_ he was drawing his bow in ambush; (3) in _Back-Bare_ he
was carrying off his quarry; (4) in _Bloudy-Hand_ he bore the red marks
of his spoil. Divers statutes put a yet keener edge upon the common
law, as that under Henry VII., whereby hunting in the forest at night
with painted vizards was made a felony.

And what of the dogs? The forest freeholders might keep mastiffs for
the protection of home and homestead; but a Court of Regards was held
every three years for their Lawing or Expeditation. Thereat your
mastiff was made to place one of his paws upon a billet of wood, "then
one with a mallet, setting a chisel of three inches broad upon the
three claws of his forefoot, at one blow doth smite them clean off."
Other dogs of any size were summarily banished the precincts.

Royalty was ever jealous of these rights. A Fee-buck and a Fee-doe were
allotted to every verderer yearly (but these were but wages in kind);
and every lord of Parliament going or returning through the forest, on
summons from the king, might take one or two beasts, but if no forester
was at hand, he must sound his horn, lest the kill might seem done in
secret. But all the king's horses and all the king's men could not
quench English love of sport. Robin Hood and his merry band are but
the glorified types of a very multitude who chased the deer night and
day, for the forest stretched mile after mile over hill and dale, and
the tall deer were fair to look on, and the taste of their flesh was as
sweet to the wanderer and the outlaw as to the noble or the monarch;
and the law, albeit cruel, was weak, and a touch of danger but gave
zest to the pursuit. To take a later instance, was not Shakespeare
himself the most illustrious of poachers? Not on such rovers but
on the poor hard-working folk within the Regard did the forest laws
press with cruel weight, and yet old Manwood highly extols their sweet
reasonableness--"The king," he says, "wearied with his anxious care for
the weal of his subjects, is given by law these forests that he may
delight his eye at sight of the vert, and mind and body by the hunting
of the wild beasts," and so he finds it in his heart to regret that in
his day the forests were somewhat diminished. And since the sovereign's
good is now the peoples' good, we may agree with him, though not for
the same reason.



PAR NOBILE FRATRUM

JOHN DOE AND RICHARD ROE


Old English law being full of fictions, had pressing need ever and anon
of imaginary characters to play imaginary parts. Sometimes a name was
picked at random from the street, and Smith, you hear without surprise,
was in great request, or, as those shadows came and went in couples,
you find Richard Smith as often as not paired with William Styles.
But your ancient scribe lusted after quaintness. He loved a jingle,
so names like John Den and Richard Fen--rare in actual life--peopled
his parchment, and strove for mastery in his mock combats. But his
prime favourites were Doe and Roe, nor would he raise Den or Fen or
any other ghost, excepting he had need of more than two. Here is a
simple instance of their use. In early times a man who commenced an
action had to give surety that he would go on with it; nowadays, if
he discontinue, he must pay the costs of the other side, but costs,
incredible as it may sound, were not always the necessary shadow, or
perhaps the substance, of law; and hence the need for the pledge. Under
Edward III. the practice went out of use, but the form of it, as legal
forms are apt to do, lingered on for centuries in this style:--

  _Pledges of Prosecution_ { JOHN DOE.
                           { RICHARD ROE.

In the old Action of Ejectment the pair were most active. So strange
were their gambols that even the lay world was impressed. In the early
years of Victoria John and Richard were common butts of popular satire.
Nothing seemed more gratuitous, more idly superfluous; but, turn to
their history, and you find how important and how serviceable were the
parts they once played.

One must begin far back. In early feudal times the cultivator of
another's land was either a serf or a person of no importance, holding
at his lord's will. The tenant's position improved with the times,
leases were granted, and if their conditions were broken, a Writ of
Covenant, as the form of action was called, secured him in possession,
and gave him damages for his wrongs. But this action lay, as the
technical term is, between the original parties alone; so that if he
were turned out by a complete stranger, or by a person claiming through
another grant of the same landlord, his remedy was merely pecuniary. In
the time of Henry III. a writ was invented giving him full protection
against anyone interfering under colour of another lease from his lord:
but the case of an Ouster (or dispossession) by an utter stranger
was not adequately provided for until the beginning of Edward III.'s
reign, when the writ of _Ejectio Firmæ_, or ejectment, was adapted
from the proceeding in trespass. It called upon the wrong-doer of
every species to show why, "with force and arms," he had entered on
and taken possession of the plaintiff's land. But, again, the result
was only money damages: so that he was driven for relief to the
equitable jurisdiction of the Chancellor, who, by injunctions and so
forth, secured him in, or restored him to, possession of the very land
itself. Presently the Common Law Courts took it ill that so much of
their legitimate business should go elsewhere; and, at the end of the
fifteenth century, they allowed the term itself, as well as damages for
the Ouster, to be recovered under a Writ of Ejectment, and this remedy
was held proper against every species of wrong-doer.

And if, not the tenant, but the landlord himself, were deprived of his
property? or, if anyone not in possession claimed a piece of land as
his freehold? These forms of procedure were not available, since they
were personal actions, and a claimant to the freehold must proceed
by a real action. These last were in early times the most important
of all. But their forms were numerous and varied (the assizes of
_morte d'ancestor_ and _novel disseisin_, as they were called in old
law French, were two of the best known), and their cumbersome and
complicated technicalities were cause of much expense, irritation,
and delay. At last it occurred to some ingenious, though forgotten,
jurist so to twist this Writ of Ejectment, which had all the last
improvements, as to make it available in an action for the recovery
of the freehold. That was done in this way. A. was (let us suppose)
the legal and rightful owner of an estate occupied in fact by B.;
he entered on the land with C., to whom he, then and there, signed,
sealed, and delivered a lease for the property in question; to them
so engaged entered B., attracted by their manoeuvring, and speedily
kicked both into the boundary ditch. Here were all the materials
for the action of ejectment, since C. might truly declare himself
dispossessed _vi et armis_ by B. from land whereof he held a lease from
A. In this action the main point evidently was: Had A. a right to
grant C. the lease? In other words, was A. the real owner of the land?
If the jury said "Yes," then judgment for possession followed for C.,
who, being merely the nominee of A., forthwith passed the property over
to him. Improvements were speedily suggested. Actual ejection was like
to prove unpleasant, so A. and C., instead of ostentatiously soliciting
B.'s attention, took with them a confederate D., who, in a friendly
and affable manner, performed the function of a chucker-out, and this
casual ejector (as they named him) was made nominal defendant in the
action wherein C. was nominal plaintiff. Lest B. should be condemned
unheard, it was provided that the casual ejector must give him notice
of the proceedings, whereupon he was let in to defend in place of D.
This device was a brilliant practical success. Real actions pure and
simple fell speedily into disuse, though it was not till 1833 that,
with a few exceptions further tampered with in 1860, they were legally
abolished.

The Commonwealth was a time of legal as well as political change.
The Lord Protector had, with quaint emphasis, described the Court of
Chancery as "an ungodly jumble," and Rolle, his Lord Chief Justice
of the Upper Bench, before and since known as the King's Bench, laid
violent hands on the action of ejectment. "What," urged he in effect,
"was the use of actual entry, lease and ouster? Let all be held as
done: so that the Court may apply itself at once to the real question
at issue." Finally, the action was in name _Doe_ against _Roe_, but
the writ as a mere form was suppressed, and the first step was the
declaration and notice to appear, both served on the real defendant or
his tenant. The declaration stated that the land in question had been
demised by A. (the real claimant) to John Doe; but that Richard Roe had
entered thereon by force and arms and ejected him, "to the great damage
of the said John Doe, and against the peace of our Lord the now King;"
and that therefore he brought this action. To this there was appended
a letter, signed "your loving friend Richard Roe," addressed to B.,
the real defendant, and informing him that the sender, hearing that he
claimed the land, must now tell him that he (Richard), being sued "as
a casual ejector only, and having no title to the same," he advised
him (B.) to enter appearance as defendant, "otherwise I shall suffer
judgment therein to be entered against me by default, and you will be
turned out of possession." Now, to succeed in his action, the plaintiff
must clearly prove four things--Title, Lease, Entry, and Ouster; and
the three last he could not do, since they never happened. This little
difficulty was got over by a consent rule: the Courts allowed B. to
take Richard Roe's place as defendant, only on condition that he would
confess those three things to have happened which never did happen:
whereupon the real question of title alone remained.

So strangely had this action varied from its first use--which was to
recover damages for wrongful possession of land--that in the result
these were nominally estimated at a shilling; and if A. really wished
to make B. disgorge the spoils of possession, he sued him again for
Mesne Profits. Although the action was nominally "_Doe_ against _Roe_,"
the cases are usually cited as "_Doe on the demise of A._" (the real
plaintiff) "against B." (the real defendant), and whilst John and
Richard were the favourite styles, we have occasionally "_Good Title_
against _Bad Title_": a comically impudent begging of the question
at issue. If the outside public mocked these venerable figures, _par
nobile fratrum_, the suitor did so at his peril. A certain Unitt
(_temp._ George I.), being served with a copy of a Declaration in
Ejectment, "pronounced contemptuous words on the delivery of it," and
the judges in solemn conclave held that he was in contempt, and was
deserving of punishment therefor. So the masque of shadows went on
till 1852, when the Common Law Procedure Act removed an obstacle which
lawyers had walked round for centuries, and consigned John Doe and
Richard Roe to that limbo where so much legal rubbish lies buried under
ever-thickening clouds of dust.



SANCTUARY


Your old-world lawyer was an ardent, if uncritical, antiquary. He
began at the beginning, and where facts ran short his fancy filled
up the blank. In discussing Sanctuary he started with the biblical
cities of refuge. He had something to say of Romulus and the foundation
of Rome. Geoffrey of Monmouth supplied him with the name of a
sovereign--Dunwallo Molmutius to wit--who flourished in Druidical
Britain (B.C. 500 it was said), under whom cities and even
ploughs were arks of refuge for the despairing fugitive. It might have
been objected that the ancient Britons had neither ploughs nor cities;
but such criticism was not yet in the land. We touch firmer ground in
the centuries immediately preceding the Conquest. In early English
legislation churches safeguarded the criminal from hasty vengeance,
and so allowed time to settle the money compensation payable for
his offence. Sanctuary was among the privileges that the Conqueror
conferred upon his foundation of Battle Abbey--one of many cases
wherefrom the Norman lawyers built up a system for mediæval England.

That system was not always consistent or clear, but its main outlines
were as follows:--sanctuaries were of two kinds--general, as all
churches and churchyards; special, as St Martin's Le Grand and
Westminster. No doubt these last had originally also a religious
sanction. Such places were twice consecrate: Pope and King, the Canon
and the Common Law united in their favour. They protected felons, but
not those guilty of sacrilege or (some held) of treason. They were not
properly for debtors, whose reception was nevertheless justified by
an ingenious quibble. Imprisonment might endanger life, and therefore
(so the learned argued) the runaway debtor must be received. A man
took sanctuary thus--Having stricken (let us say) his fellow, he fled
to the cathedral and knocked (with how trembling a hand!) at the door
of the galilee. Over the north porch were two chambers where watchers
abode night and day. On the instant the door swung open, and had scarce
closed behind the fugitive when the galilee bell proclaimed to the
town that another life was safe from them that hunted. Then the prior
assigned him a gown of black cloth marked on the left shoulder with
the yellow cross of St Cuthbert, and therewith a narrow space where
he might lie secure of life, though ill at ease. So it was at Durham.
At Westminster the sanctuary man bore the cross keys for a badge, and
walked in doleful state before the abbot at procession times; and there
were, no doubt, countless variations. A phrase of the time reveals how
close the watch was now and again. Under Edward II. it was complained
that the sanctuary man might not remove so much as a step beyond
the precincts, _causâ superflui deponendi_, without being seized and
haled to prison. He was fed and lodged in some rough sort for forty
days, within which time he must confess his crime before the coroner
at the churchyard gate, and so constitute himself the king's felon.
Then he swore to abjure the realm. The coroner assigned him a port of
embarcation (chosen by himself), whither he must hasten with bare head,
carrying in his hand a cross, not departing, save in direst need, from
the King's highway. He might tarry on the shore but a single ebb and
flow of the tide, unless it were impossible to come by a ship, in which
case he must wade up to his knees in the sea every day. He was thus
protected for another forty days, when, if he could not find passage,
he returned whence he came, to try his luck elsewhere.

He who refused to confess and abjure was not driven forth, but if,
after much spiritual admonition, he still refused to conform, he had
neither meat nor drink given him, and so was ended, if not mended.
A man unjustly deprived of sanctuary could plead the right before
his judges. It was a declinatory plea, and must be urged before he
answered as to his guilt or innocence; it availed him nothing to do
so after, for he was strung up forthwith. This system, however harsh,
had two very plain advantages. It was a short and easy method with a
rascal, and it powerfully made for scientific accuracy in pleading. If
a fugitive were caught and condemned ere he "took Westminster," as the
town phrase ran, it was no advantage for him to escape on the way to
execution, inasmuch as he was promptly haled forth to the gallows. A
curious case in the eighth of Edward II. perplexed the ancient student.
A woman was condemned to death, but a jury of matrons had no doubt
as to her condition, and she was reprieved. She escaped to sanctuary
before the arrival of the hangman's cart, and when the gaoler dragged
her out, the judges bade him put her back again, whereat the learned
shook their heads, opining that hard cases make bad law, and the jade
should have swung like other folk.

On the whole the privilege was strictly respected. For instance, the
King's justices were wont to hold session in St Martin's Gate. They
sat on the very border. The accused were placed on the other side of
the street; a channel ran between them and their judges, and if they
once got across _that_ they claimed sanctuary, and all proceedings
against them were annulled. And one sees the reason why Perkin Warbeck
took such care "to squint one eye upon the crown and the other on the
Sanctuary" (as Bacon curiously phrases it); yet the great case of
Beckett is there to show that nothing was absolutely sacred in these
violent years. Nor does it stand alone. In 1191, Jeffrey, Archbishop
of York, and son of Henry II., was seized at the altar of St Martin's
Priory, Dover; and dragged, episcopal robes and all, through dirty
streets to the Castle: this, too, by order of William Longchamp, Bishop
of Ely, and Papal Legate. In 1378, Archbishop Sudbury complained in
Parliament that one Robert Hawley had been slain at the high altar even
while the priest was saying a mass. It was rumoured indeed that one
Thurstian, a Knight, chasing a sanctuary man with drawn sword, was of a
sudden stricken with grievous ailments. But this and other like stories
did not deter the citizens of London (_circa_ 1349) from assembling
at supper time in a great crowd, and dragging forth a soldier who had
escaped on the way from Newgate to Guildhall, where he was being taken
for trial. In another case (_temp._ Henry VI.), where a youth had taken
sanctuary after having foully slain a kind mistress, the good women
about St Martin's broke in and despatched him with their distaffs. Of
those who took sanctuary to good purpose the most famous was Elizabeth,
widow of Edward IV., who, in 1471, registered herself a sanctuary
woman in Westminster, and there sat, in Sir Thomas More's phrase, "Alow
in the rushes." But you have read the tragic story in Shakespeare. And
in a later age "beastly Skelton" (as Pope will have him), from that
same Westminster safely lampooned the mighty Wolsey, though for that he
needs must live and die there.

To catalogue the evils of the sanctuary system were to show lack of
historical sympathy, nay, even of humour. The former days were not as
these; it had its place with the shrine and the pilgrimage, the knight
errant, and the trial by ordeal in the strange economy of a vanished
world. As the times grew modern its practical inconvenience was felt
for the first time. Yet the occasion of the first assault on the
privilege of sanctuary was one where the benefits were conspicuous,
and the assailant had the worst of motives. It was the case just noted
of Edward IV.'s widow; she had the young Duke of York as yet safe
with her. Her enemies were at a loss for the moment, and Buckingham,
then the sworn ally of Richard of Gloucester, took occasion in the
Privy Council to attack her place of refuge. "There were two chief
plague-spots in London," he snarled: "one at the elbows of the city
(Westminster), the other in the very bowels thereof (St Martin's le
Grand). These places were the refuge of theeves, murtherers, and
malitious, heynous traytors! nay," he added, "men's wives ran hither
with their husbands' plate, and say they dare not abide their husbands
for beating," with more to the same effect. Had not Elizabeth yielded,
Westminster might have witnessed a violation as affecting as that of
Canterbury.

Under Henry VIII. the old order was broken up, and sanctuary law,
like much else, was changed and amended again and again. First, all
special places save Wells, Westminster, and six others, lost the
privilege. Divers classes of criminals --as traitors, and pirates
(and afterwards) Egyptians--were formally rendered incapable of its
enjoyment. Before the sanctuary man abjured the realm he was burned
on the crown of the thumb "with the signe of an A," and if he did not
depart on the instant, he had no further protection. But it occurred to
over-anxious legislators that such a fugitive might carry beyond seas
precious hints of the mysteries of trade or politics, or that, making
as if for the nearest port, he might but proceed to infest another
place. So he was ordered to abjure the liberty of the realm, but not
the realm itself; and being branded, was confined under a governor in
one or other of the sanctuaries. Whenever he ventured forth--as he
might in the daytime--he must wear the prescribed badge of the refuge.
He dare carry no weapon save a meat-knife, and that but at meal-times.
He must likewise answer to the daily roll-call. If he committed another
felony--and crimes done _sub spe redeundi_ had been a sore grievance
of late--he was to lose his rights. The governor was empowered to
hold courts for debt and minor offences within his bounds. And so "the
sanctuary person abjured," as the Tudor lawyers phrased him, spent the
last days of his evil life. I need not dwell on minor tinkerings of the
system under Henry's children. In 1623 the Statute 21 James I., c. 28,
s. 7 made a legal end of the right of sanctuary.

The last of our story is not yet. Certain places still assumed the
right of giving shelter against civil process. When the bailiffs
invaded the liberty, the whole population forthwith set on, and
pommelled them so lustily that they were fortunate if they escaped
sound in limb. The precincts of Whitefriars and the Savoy were
the worst places in London. The first, renowned in slang, nay, in
literature, as Alsatia, because (some explained) it neighboured the
Temple on the East, as Alsace did France, was a base and villainous
Bohemia. Ram Alley (now Mitre Court), a local Lombard Street, Salisbury
Court (now Salisbury Square) were its chief ways, though probably
all between Fleet Street and the river, which was not the Temple,
held of this lawless republic. A bully or bravo, or squire of Alsatia
was a cant name for a penniless and violent fellow of the time. He is
pictured by Otway in his _Soldier's Fortune_ with flopping hat pinned
up on one side, with a tawdry weather-beaten peruke, dirty linen, and
a long scandalous iron sword jangling at his heels. The sheriff with
the _posse comitatus_ did on occasion raid Alsatia, but his prey, if
too weak to fight, had ever timely warning to escape by land or water
to some other like burrow. _The Fortunes of Nigel_ tells as much of the
place as the general cares to know, and there is much curious matter
mined out by the zealous antiquary as to other like places of refuge
in the capital. Thus Fullwood's, sometime Fuller's Rents, was related
to Gray's Inn as Alsatia to the Temple. In 1673 the gentlemen of that
ancient house so far forgot themselves as to engage in "pumping"
some bailiffs who attempted to take goods from out the Rents upon an
execution. "They were charged with a body of thirty lusty bailiffs,"
and a "strong ryot" ensued. Possibly they recollected that their most
illustrious fellow-member, "broad-browed Verulam," had taken refuge
there some sixty years before, a circumstance which gave my Lord Coke
occasion to "gall the kibe"--as indeed he never lost any chance to
do--of his great contemporary. Then there was the mint in Southwark,
whereto an ex-poet laureate, "poor Nahum Tate," as Dr. Johnson calls
him, was driven by extreme poverty. Pope's cruel satire pictures it
half Grub Street half Bedlam, the last refuge of the hack and the
poetaster. The Clink and Deadman's place are now forgotten, whilst
Baldwin's Gardens and the Minories have a more commonplace reputation.

About a century after James's Act, Parliament again interfered, and
professed to strip the "pretended privileged places" of every shred
of exemption, but it required two other statutes, the 9 Geo. I. c.
28, 1722, and the 11 Geo. I. c. 22, 1724, to make the law's process as
effectual there as elsewhere.



TRIAL BY ORDEAL


Before the Conquest, and for long after, local justice in England was
administered by two courts--that of the Hundred and that of the Shire.
The first nominally consisted of the freeholders of the district,
but the real business was done by a Committee of Twelve. The second
was made up of the chief men of the district, and representatives
from each township; but here, again, the work was left to a select
few. If a man were charged with (say) theft before either court, he
was tried in a fashion vastly different from that obtaining to-day.
The complainant was sworn on the holy relics: "By the Lord I accuse
not this man either for hatred, or for envy, or for unlawful lust of
gain." This solemn accusation made out a _primâ facie_ case against
the suspect, who instantly rebutted oath with oath. "By the Lord I
am guiltless, both in deed and in counsel of this charge." Then he
produced twelve compurgators, who swore by the Lord, "The oath is clean
and unperjured which this man hath sworn"; then the prisoner went free.
These compurgators were witnesses to character. Their testimony had
no reference to the particular facts of the case; they simply alleged
their belief in accused's innocence, but sometimes their oath "burst"
(as the curious technical phrase ran), that is, he could not find
compurgators, or those he produced said little good of him; or he was
a stranger of whom nothing was known; or a Welshman whose veracity has
never been an article of faith; or the accused was caught with his
booty; or was a woman; or the charge was peculiarly odious, as treason,
or witchcraft; then in all these cases there was an appeal to the
_Judicium Dei_, the Creator was called upon to prove beyond dispute the
guilt or innocence of the accused.

Trial by Ordeal was more ancient than the Church itself. There are
traces of it in the Old Testament; it is discussed in great detail in
the Laws of Manu; a famous passage in the _Antigone_ (verses 264-267)
reveals it as well known to the Greeks, and before Augustine came, or
St Columba preached, it prevailed in some form or other in Britain.
Yet the higher ecclesiastical powers continually thundered against it,
and finally brought about its disuse. There were several varieties,
but many forms were common to all. First, there was the ordeal of
cold water, chiefly reserved for the baser fellow. As a preliminary
the accused submitted to a fast of three days, during which he was
watched by a priest, then he was taken to church to hear Mass; and was
adjured by Father, Son, and Holy Ghost, by the gospels and relics of
the saints, by everything held most sacred, not to partake of communion
if he were guilty. Next came the _adjuratio aquæ_, wherein the water
was enjoined to cast him forth if he were guilty, but to receive him
into its depths if innocent. And now, having been stripped, he kissed
the Book and the Cross, was sprinkled with holy water and was cast in,
to float if he were guilty, to sink if he were not. But there was the
rub--how about death by suffocation? Sir James Stephen suggests that
it was all a mode of happy despatch! Or (one fancies) it might be an
elementary form of the famous verdict "not guilty, but don't do it
again," with the chance of doing it again effectually provided against.
On the other hand, a recipe for immersion in a thirteenth century MS.
of the Monastery of Becca reduces the proceedings to the level of
farce. The hands of the accused were tied, and a rope was put round his
waist; "and let a knot be made in the rope as high up as the longest
hair of the man's head will reach, and then in this way let him be
gently lowered into the water; and if he sinks down to the knot, let
him be pulled out as innocent; if not, let him be adjudged guilty." How
_not_ to sink under such conditions? The practice of testing witches
by throwing them, securely tied, into the nearest pond was clearly a
survival of this form of ordeal.

In the ordeal by hot water the accused, plunging his hand to the wrist
in the boiling fluid, brought forth a stone suspended therein by a
cord. (This was the Single Ordeal, and it became the Triple when the
plunge was up to the elbow.) The arm was done up in bandages not to
be removed till after three days; if the scald had healed the man was
innocent, if it still festered he was guilty. In the ordeal by hot
iron, a piece of red-hot metal was carried a distance of nine feet;
it was then dropped and the hand was bandaged as already set forth. A
knight had to thrust his fist into a glowing gauntlet; another form
was a walk with naked feet over a sequence of red-hot ploughshares. We
have a picturesque circumstantial and absolutely untrustworthy monkish
account of how Emma, mother of Edward the Confessor, being suspected
of an all too intimate acquaintance with Alwyn, Bishop of Winchester,
underwent this trial. She took nine steps for herself and five for the
Bishop, fixing her eyes the while on heaven. "When shall we reach these
ploughshares?" queried she. How agreeable a surprise to find her little
promenade already past and done with! No need to swathe _her_ feet, the
red-hot iron had marked them not at all!

The last mode was the _Corsnæd_, or Cursed Morsel--a piece of
barley-bread (or cheese), one ounce in weight. This "Creature of
Sanctified Bread" was adjured, in terms terrible enough to make the
sinner quake, to stick in the guilty throat, and cause the guilty jaws
to be clenched and locked up. If in spite of all it went softly down,
who dared to refuse belief in the man's innocence? It was chiefly
for the clergy, and from every point of view must have been the most
agreeable of the three, though a legend as untrustworthy as that of
Emma ascribes to it the death of Earl Godwin, father of Harold. As he
sat at meat with Edward the Confessor, the king brought up an old
scandal about his brother's murder, "May God cause this morsel to choke
me," passionately exclaimed the earl, "if I am guilty of the crime!"
Edward blessed the bread; Godwin made an effort to swallow, choked and
died. "Take away that dog," said the monarch in what would seem an
outburst of savage glee. This was on April 15th, 1053, thirteen years
before the Conquest. Godwin in truth died of a fit. It soon was the
policy of the monkish chroniclers to write down the national party of
which he had been the head, a fact which explains the fable were it
worth serious examination. More interesting to note the survival of
the rite in the still current rustic formula, "May this bit choke me
if I lie!" If the ordeal proved a man guilty, the punishment was fine,
death or outlawry, but even if he escaped, the Assize of Clarendon
(1164) ordered that, in certain cases, he should abjure the realm. By
that time compurgation was gone; in 1215 the Lateran Council issued a
solemn decree against Trial by Ordeal; and soon after it had vanished
from English law. There is a curious reference to it in the State
Trials as late as 1679. John Govan, a Jesuit priest, was indicted in
that year at the Old Bailey for an alleged share in the Popish Plot.
With some hesitation he claimed the right of Trial by Ordeal as an
ecclesiastical privilege of a thousand years' standing, but Scroggs and
North peremptorily refused to listen to his plea. "We have no such law
now," said the latter. Sir James Stephen assures us that the formula,
"By God and by my country," wherein, till 1827, a prisoner must answer
the question how he would be tried, sets forth a memory of it.

Of the customs akin to Trial by Ordeal only one can find mention here.
It was held that if the murderer touched, nay, even approached, the
body of his victim, the wounds gushed forth blood, thus in _Richard the
Third_, "dead Henry's wounds" are seen "to open their congealed mouths
and bleed afresh" as Gloucester draws near the bier. And according to
one of the picturesque legends of English history, when Richard the
Lion-Heart encountered at Fontevrault his father's body, the blood
gushed from the nostrils of the dead king, a proceeding which, as
Richard's offence was at the worst but unkindness, showed a somewhat
excessive sensibility on the part of the royal clay. The oddest and
latest case of all is from Scotland. In 1688 Philip Stanfield was
tried for parricide at Edinburgh; one count of the indictment stated
how his father's body had bled at his sacrilegious touch. The Lord
Advocate, Sir George Mackenzie of Rosehaugh, the "Bluidy Mackenzie"
of covenanting legend and tradition, conducted the prosecution, and
philosophic and cultured jurist as he was, he yet dwelt with much
emphasis on the portentous sign. There was no lack of more satisfactory
if more commonplace evidence, and young Stanfield assuredly merited the
doom in the end meted out to him.



WAGER OF BATTLE


Judicial combat is a fascinating yet perplexing subject, having many
side-issues whereupon the writer must sternly refrain. The case
of David and Goliath was gravely urged (A.D. 867) as a
precedent to Pope Nicholas I., and by him disdainfully put aside. The
thing itself was unknown in Roman law, though the old legend of the
Horatii and Curatii was part of its lore. But it was of the essence
of chivalry, and the duel and the prize-fight were its legitimate
offspring. "Where the hazel grew," so Mr George Nelson, our chief
modern authority, picturesquely defines its region, but our attention
here must be limited to England. That it was _not_ with us before
the Conquest moves Bishop Stubbs to something of the scholar's mild
amazement. The Normans, it seems clear, brought it with them from
their continental home. A native accused of a serious crime by one of
the invaders was tried by ordeal of battle, but a Norman had choice of
the oath as well, and it was also used to decide which of the claimants
should have a disputed piece of land. After the legal reforms of Henry
II., it became an alternative proceeding in a limited class of actions.
These wore the Writ of Right (the most solemn method of trying title
to land), accusations of murder, and treason. It had place only in
appeals, in actions, that is to say, brought not in the king's name,
but by an interested subject here called the Appellor, against whom
the accused or Appellee might offer to prove his innocence by his
body. The Appellor must accept the challenge unless he were maimed by
age or wound. Likewise he could "Oust the Battle" (_i.e._ prove this
mode of trial improper) if the accused were caught red-handed. The
parties exchanged gloves, and gave pledges or wads (_vadiare bellum_);
whence came Wager of Battle, afterwards the technical term for the
whole process. In civil cases, if the litigants came to terms, the
judge exacted a fine, called the Concord, while he who fought and lost
must pay the mulct of Recusancy. In criminal matters he who resisted
not till the stars shone forth was branded as Recreant or Craven and
was forthwith strung up, and all his goods were declared forfeit. The
Charters of Exemption purchased from overlord or king show how hateful
the system was to the old English citizen. Henry I. enacted for a
consideration that no Londoner should do battle, and in due course the
men of Winchester, Lincoln, and Northampton obtained the like privilege.

The story of Leicester is worth the telling. In the time of Henry I.
Earl Robert of Mellant ruled the town. It chanced that two burghers,
Nicholas and Jeffrey, waged battle on a plea of land. For nine long
hours they mauled each other with varying fortune, when one of them
took to flight, and staggered, all unwitting, on the edge of a pit.
The other saw his danger, and remembered that they twain were kinsmen.
"'Ware o' the pit," he shouted; "turn back, lest thou fall therein."
The spectators so lustily roared their approval, that the Earl heard it
in his castle, and he, after due enquiry, granted that in time coming
twenty-four jurors of Leicester should determine all civic disputes.
One strange product of Trial by Combat was the Approver: a rascal who
turned king's evidence, and fought with his late companions. Sometimes
he accused other malefactors, and if he came off victor in five
combats he was released, and banished the country. This system fell
into gross abuse, for the Approver, greedy of freedom or hush-money,
appealed honest men right and left. In the chronicle of William Gregory
the Skinner (1456) we have an account of a duel fought by one Thomas
Whitehorne, a criminal, caught in the New Forest, and lodged in prison
at Winchester, where he remained for about three years, fighting ever
and anon. "And that fals and untrewe peler (= Appelar) hadde of the
Kynge every day 1d. ob." At last a proposed victim retorted the lie
in his throat, and said that "he wold prove hyt with hys handys and
spende hys lyfe and blode a-pone hys fals body." Then the judge "fulle
curtesly informed this sympylle man" that "he and the peler moste be
clothyed all in whyte schepys leter." Also each must have a stave of
green ash, three feet long, the point thereof "a horne of yryn i-made
lyke unto a rammy's horne;" and if these ash-plants broke, then they
"moste fight with hyr handys, fystys, naylys, tethe, fete, and leggys."
Moreover, they must strive fasting on the "moste sory and wrechyd
greene about the town;" but "Huyt ys to schamfulle to reherse alle
the condycyons of thys foule conflycte." And we must follow Gregory's
precept rather than his example.

The Appellee, asking for inquiry as to his character, was reported
"a fyscher and tayler of crafte," and therewith the "trewyste laborer
and the moste gentellyte." The peler, with brazen insolence, offered
_his_ character for inspection. There was much dubiety as to where and
how he had lived when at large, but "Hange uppe Thome Whythorne" was
the response of every reference he tendered. At last the day came. The
Appellee, as became an innocent man, told his beads, and prayed long
and earnestly, and wept full sore, and all present prayed for and with
him. The "fals peler" scoffed thereat. "Thou fals trayter," yelled
he; "why arte thou soo longe in fals bytter beleve?" The defendant's
sole answer was so lusty a thwack that his staff flew all to pieces.
Thereupon the peler's stave was taken away from _him_; "ande thenn they
wente togedyr by the neckys," so using teeth and fist, "that the lethyr
of clothing and fleshe was alle to rente in many placys of hyr bodys."
It fared ill at first with the "meke innocent." His opponent had him
down on the ground, and near choked the life out of him. But presently
the meek one got up on his knees, and (the combat not being under
Queensberry rules), "toke that fals peler by the nose with hys tethe,
and put hys thombe in hys yee, that the peler cryde owte ande prayde
hym of marcy, for he was fals unto God and unto hym." The peler's
subsequent record is of the briefest, but, one is thankful to add, of
the most edifying description. "And thenn he was confessyd and hanggyd,
of whose soule God ha' marcy." Amen. "_Victus est et susp_," so for
epitaph wrote the official scribe against his name. And the exchequer
parchments knew him and his "_1d. ob. per diem_" no more.

The Champion, now but the shadow of a name, was a nobler offshoot of
the system. Originally a witness, he was finally indispensable in civil
cases wherein--for a legal reason not here to be discussed--the parties
themselves must not engage. He was the proper advocate for churchmen,
for women, and for the Crown; and his last appearance for royalty was
in 1820, at the coronation of George IV. The Dymocks have held the
manor of Scrivelsby in Lincolnshire for centuries by this tenure, and
possibly their representative claimed a part in the pageant on the
two subsequent occasions, but to have him ride up Westminster Hall in
full armour and clang his gauntlet on the floor (as he did of old)
would have savoured too much of Drury Lane pantomime for the taste of
a cynical age. The Champion's dress and bearing were minutely ordered.
His head (_e.g._) was shaven, but whether this was to give no hold to
his foe, or to fulfil some old superstition, is still in debate among
the learned. In the end he was usually a hireling, which fact may
very well have accentuated the absurdity of the system. At any rate,
towards the close of the thirteenth century it was only kept alive by
the approvers. Then Chivalry came with its Treason Duel, and by the
time of Richard II. the Chivalry Court was in full swing. Its forms,
mainly imported, were after this wise. Upon the accusation and the
exchange of gloves, time and place were assigned for the duel, and here
the lists were set and staked. There were two gates, and hard by each
a pavilion--one eastward for the appellant, and the other westward for
the defendant. To the south was the judge's seat; and right and left
were benches for the high-born, while the commons were made free of
the unenclosed field. Near the judge an altar was decked with relics;
and not far off there stood a gibbet and a scaffold. Men-at-arms were
stationed between the palisades. There were heralds in gay tabards, a
priest in full canonicals stood at the altar--but it were wearisome to
enumerate all the officials.

The trial was held not less than forty days after the challenge; and
the time being come, the heralds demanded silence; and the appellant
was summoned three times by voice and by sound of trumpet. As he
marched forward he was addressed by the Constable, "Who art thou, and
wherefore comest thou armed to the door of these lists?" His answer
given, he was taken to his pavilion, and afterwards was made to swear
on the altar that his cause was just. The other did in like fashion.
Then the pavilions were replaced by chairs whereon the combatants might
take an occasional rest. Napkins holding a loaf and a bottle of water
were hung on opposite ends of the lists. The marshal cried three times
"_Laissez les aller_," and the pair went at it. Far better death than
defeat. If either yielded, the marshal cried "Hoo," to declare the
combat at an end. Then the wretch was taken to the scaffold on which
his shield was hung reversed, his sword was broken, and his spurs
hacked from his heels. He was now taken to the church where a mass for
the dead was sung over him, and at last he was haled to the gibbet
where the hangman claimed his prey.

This is the form of judicial combat that caught the fancy of our great
writers. In Chaucer's _Knight's Tale_ there is the elaborate set to
between Palamon and Arcite. In Shakespeare's _Richard II._ there is
the fiasco of Norfolk and Hereford. In _Lear_ we have the fight to
the death between Edmund and Edgar, and "every schoolboy knows" The
Templar's duel in _Ivanhoe_.

Chivalry passed, yet not the half-forgotten wager of battle. A claim so
to determine a civil dispute was made in 1571, to the great perplexity
of the lawyers. Elaborate preparations were made, but the case was
settled in other fashion. Under James I. bills were introduced into
Parliament to abolish it, but they fell through, and in 1774, at the
beginning of the North American troubles, when it was proposed to
punish the New Englanders by depriving them of the appeal of murder,
Dunning, afterwards Lord Ashburton, described it as that great pillar
of the Constitution. Burke concurred, and the motion was lost. Perhaps
they have it yet in the States, at least Dr Cooper, in editing, in
1857, the statutes at large of South Carolina, treats Wager of Battle
as an existing fact. In England the end came in dramatic fashion. In
May 1817 Mary Ashford--a young woman of Langley in Warwickshire, was
found drowned under suspicious circumstances. A certain Abram Thornton
was suspected of the murder; he was tried and acquitted, but there
was much evidence against him, and he had played so ill a part in a
horrid though vulgar tragedy that the relatives of the dead girl cast
about to carry the matter further. Now, an old act provided that no
acquittal by jury should bar an appeal of murder, so William Ashford,
Mary's brother, appealed Thornton in the Court of King's Bench. He
was attached, and when called upon pleaded "Not guilty, and am ready
to defend the same by my body." He then threw down his glove on the
floor of the Court. It was a curious turn; for no doubt men thought
that he would put himself upon the country, and stand a second trial by
jury. There was much legal argument (set forth at great length in the
reports of the time), for the prosecuting counsel tried hard to "oust
his battle," but to no purpose, and in the end Thornton was set free.
In 1819, two years after the drowning of Mary Ashford, the Appeal of
Murder Act (59 Geo. III. c. 46) abolished the last remnant of Wager of
Battle.



THE PRESS-GANG


Smollett, Galt, Marryatt, and the other naval novelists, not those
well-nigh forgotten Dry-as-dusts whose works encumber the back shelves
of our law libraries, are the authorities for the press-gang of popular
imagination. The sea-port invaded, the house surrounded at dead of
night by man-o'-war's men with stout cudgels, and by naval officers
with cutlasses; the able-bodied mariner knocked down _first_ and _then_
bid stand in the king's name; the official shilling thrust into his
reluctant palm before he is hauled off in irons--who has not devoured
with joy this wild romance, with its tang of the sea, its humour and
rough frolic, the daring and exciting prelude to much more daring and
more exciting achievements? But how far can we trust these entertaining
authors? And what was the legal status of the press-gang?

We are like to get nearest the truth in a law case with its official
documents and sifted evidence and considered decision. The trial of
one Alexander Broadfoot for the murder of one Calahan is the best
available. In the April of 1774 H.M.S. _Mortar_ lay at anchor off
Bristol. The captain held a warrant of impressment, but he could
delegate his authority only to a commissioned officer, whose name
must be inserted in his order; and the only one aboard was the
lieutenant. On the 25th the ship's boat was sent down Channel, _with
neither captain nor lieutenant_ to look for men. She had no luck till
evening, when she came across the _Bremen Factor_, a homeward bound
merchantman, still some leagues from port, but beating thitherward up
Channel. The man-o'-war's men having boarded her, were proceeding to
search the hold, when they were confronted by Broadfoot, the boatswain,
armed to the teeth. He demanded what they came for. "For you and
your comrades," was the plain and honest, though no doubt irritating
answer. "Keep back, I have a blunderbuss loaded with swan shot," said
Broadfoot, levelling his piece. The press-gang stopped. "Where is your
lieutenant?" he went on. (Evidently this boatswain knew a little of the
law.) "He is not far off," was the evasive answer, showing that the
man's acts and words had impressed his assailants. Did Broadfoot grasp
the fact that they were trespassers? At any rate, he let fly, killed
Calahan on the spot, and wounded two others. He was tried at Bristol,
and acquitted of the capital charge--for the action of the man-o'-war's
men was plainly irregular; but he was found guilty of manslaughter, for
that he had used more force than was necessary. Another case is that of
Robert Goldswain, a small freeholder at Marlow, in Bucks. In the March
of 1778 he was a bargeman on the Thames, engaged in carrying timber to
the king's yard; with a protection order from the Navy Board to him by
name so long as he should continue in that service. But these were
troubled times, the French had just declared for the revolted American
colonists and our war-ships were frightfully undermanned; so, on the
16th of March, the Admiralty fixed the next night for a general press
on the Thames, with direction to seize--despite protection orders--on
all sailors and watermen whatsoever, saving and excepting merchant
skippers and men exempted by special acts. Goldswain was in the net,
and was passed from ship to ship down to the Nore, where his captors
were overtaken by an order from the Court requiring a return to a writ
of Habeas Corpus issued on his behalf. Counsel's argument for the
Admiralty--that the device of first issuing protection orders to lure
sea and watering men from their lurking-places, and then pouncing on
them under the authority of a general press, was excellent--did not
commend itself to the Court, which, in the battle over poor Goldswain's
body, suspected some antagonism between the Admiralty and the Naval
Board. In the end my lords gave way, and Marlow received again her
ravished freeholder.

During the strain and stress of our eighteenth century war-making,
when we had every need of seamen to man our battle-ships, and could
not afford the market price for them, there was much impressment, and
through frequent appeals to the courts the law on the subject was
exactly determined. It was a prerogative of the Crown, a remnant of
larger rights which at one time took in soldiers and ships, or their
equivalent in cash (Hampden's famous trial scarce needs mention); it
could not be justified (it was allowed) by reason, but only by public
necessity. On command of the king all sea and river-faring men were
liable to naval service in time of war. The right to impress was
founded on immemorial usage, for, though given by no statute, it was
recognised by many. It was so held on the authority of a case in Queen
Elizabeth's reign: the sole customary exception was a ferryman; but
merchant captains were in practice likewise allowed to go free. Only
in Charles I.'s reign, when all the Crown prerogatives were jealously
overhauled, was there any serious questioning of its legality, but it
was exercised by the Commonwealth as well as by the Monarchy. Given
up in fact some fifty years since, it has never been so in law. You
find in Horner's _Crown Practice_ (1844) a form of _Habeas Corpus ad
subjiciendum_ for impressed men, with the comment that it is little
needed now.

Of the enormous number of commissions and statutes relating to
impressment, an example taken here and there must suffice. The acts
express amazement and virtuous indignation at mariners unwilling to
serve. One (_temp._ Henry VII.) sets forth that such as are chosen,
and have received their wages, shall, if they give leg-bail, be
amerced in double, and go to prison for a year--when they are caught.
Another (_temp._ Philip and Mary) reproves the Thames watermen who,
in pressing time, "do willingly and obstinately withdraw, hide, and
convey themselves into secret places and outcovers; and, after the
said time of pressing is o'erpassed, return to their employments."
After the Revolution an attempt was made to establish a naval reserve
by means of a voluntary register, and so do away with impressment, but
this was a complete failure. Then, to foster the coal and other trades,
certain exceptions were granted; and still later, sailors in outward
bound merchantmen were exempted because of the hardship inflicted on
their employers (the hardship of the sailor impressed in sight of port
after a long voyage was not considered). When a warship fell in with a
merchantman on the high seas she impressed what men she would. British
sailors found on board American vessels were hauled out forthwith, and
this was one cause of the War of 1812.

Press-gang stories, more or less authentic, are numerous. Here are
samples which serve to show that the searchers did not nicely
discriminate between those who were and were not legally subject to
impressment. A well-dressed man was seized. He protested that he was
a gentleman of position. "The very boy we want," gleefully replied
his captors; "for we've such a set of topping blackguards aboard
the tender, that we wanted a gentleman to teach 'em manners." Sham
press-gangs for the black-mailing of honest citizens were common. In
one case a couple had given all their money to go free, when the real
gang coming up made booty of both parties, and had them aboard in no
time. The quarrymen at Denny Bowl, sixty strong, were heard to brag
in their cups what _they_ would do did the press-gang dare to molest
_them_, whereupon "three merry girls" got into breeches, put cockades
in their hats, took sword and pistol, and advanced, when the quarrymen
ran like hares. And to conclude, there is the legend of the gang that
raided "The Cock and Rummer" in Bow Street. They seized the cook. The
customers, fearing for their dinner, or themselves, rushed to the
rescue. Long the strife hung dubious, when the constable (he ought to
have been a Bow Street runner) stalked in. The gang, with a fine sense
of humour, let the cook go, seized _him_, and away at a great rate,
though not fast enough to get clear.



SUMPTUARY LAWS


"Act of Parliament" is a term apt to mislead. To-day it is enforced
by so powerful a machinery that practice conforms to precept; but in
mediæval England much law was dead letter. Statutes were often mere
admonitions; they expressed but an ideal, a pious intention. This was
specially true of the Sumptuary Laws, whereby the dress and food of
the king's subjects were nicely regulated. If you turn over a book of
costumes you find that man's attire has varied more than woman's. The
sorts and conditions of men were marked by rigid lines. This fact was
shown forth in their dress, and that again re-acted on their modes of
thought and habits of life. "Men's apparel," says Edmund Spenser, "is
commonly marked according to their condition, and their conditions
are often-times governed by their garment, for the person that is
gowned is by his gown put in mind of gravity, and also restrained from
lightness by the very unaptness of his Tweed." Of old time man's dress
was rich and varied, but how to catch its vanished effect? In Courts
of Justice there is still the splendid, if occasional, bravery of the
judge. See the same man in private, gaze on divinity disrobed, and the
disenchantment measures for you what is lost in the splendid garb of
other days. In mediæval Europe the Church first condemned a too ornate
appearance. Thus, under our early Norman Kings, long hair was much in
vogue. In 1104 Bishop Serlo, preaching before Henry I. and his Court
in Normandy, attacked this fashion roundly, compared his hearers to
"filthy goats," and moved them by his eloquence to tears of contrition.
He saw and seized that softer hour. Descending from the pulpit he then
and there clipped the polls of them that heard him till he must fain
sheath his shears for lack of argument. This rape of the locks was
followed by a royal edict against long hair. Alas! for this story.
Rochester Cathedral still bears the effigies of Henry and Maud his
queen; each is adorned even as Absalom, and Time, whilst it has mauled
their faces in cruel fashion, has with quaint irony preserved intact
those stone tresses.

Two centuries pass ere the Sumptuary Laws proper begin. The 10 Edward
III. c. 3 (1336) ordered that no man was to have more than two courses
at dinner, nor more than two kinds of meat, with potage in each course;
but on eighteen holidays in the year the lieges might stuff at will.
Next Parliament common folk were forbidden to wear furs; but the 37
Edward III. was the great session for such work, made needful (it was
thought) by the sudden increase of luxury from the plunder of the
French wars. Some half-dozen Acts prescribed to each rank, from peers
to ploughmen, its wear; nay, the very price of the stuff was fixed;
whilst all wives were to garb themselves according to their husbands'
means--a pious wish, repeated a century afterwards, in an Act of the
Scots James II. The veils of the baser sort were not to cost more than
12d. apiece: embroidery or silk was forbidden to servants, and these
were to eat of flesh or fish but once a day. Cloth merchants were to
make stuff enough, and shopkeepers to have stock enough, to supply
the anticipated demand. Such apparel as infringed the statute was
forfeit to the king. The knight's dress will serve for sample of what
was required. It was to be cloth of silver, with girdles reasonably
embellished with silver, and woollen cloth of the value of six marks
the piece. Under Richard II. monstrous sleeves were much affected. A
monkish scribe inveighs bitterly against these "pokys, like bag-pipes."
Some hung down to the knees; yea, even to the feet. Servants were as
bad as their masters! When potage is brought to table, "the sleeves
go into them and get the first taste." Nay, they are "devil's
receptacles," since anything stolen is safely lodged therein. And so a
statute of the time prohibited any man below a banneret from wearing
large hanging sleeves, open or closed.

The fashion changed to _dagges_, a term explained by the 8th of Henry
IV., which forbade "gown or garment cut or slashed into pieces in the
form of letters, rose-leaves, and posies of various kinds, or any
such devices." The fantastic peaked shoes of the fifteenth century,
sometimes only held up by a chain from the girdle, were fair mark for
the lawgiver, and under Edward IV. no less person than a lord was
allowed peaks exceeding two inches. An Act in the same reign banned
the costly head-gear of women. Henry VIII. saw to men's garb as well
as their beliefs. His first Parliament forbade costly apparel, and
there is preserved in the Record Office a letter from Wolsey enclosing
to the King, at his request, the Act of Apparel, with an abstract,
for examination and correction. Exemptions were not unknown: thus,
in 1517, Henry Conway of Bermondsey obtained license to wear "camlet,
velvet, and sarcenet, satin and damask, of green, black, or russet
colour in his clothing." Under Queen Mary common folk who wore silk on
"hat, bonnet, girdle, scabbard, hose, shoes, or spur-leathers," were
grievously amerced. Under Elizabeth the regulations were numberless:
thus there is an act for "uttering of caps, and for true making of
hats and caps." No one was to engage in this business unless he had
been "a prentice or covenant servant" by the space of seven years. No
one under the degree of knight was to wear a cap of velvet. But these
were not pure sumptuary regulations: they were for protection of home
industries. A statute of the previous reign had declared that no man
was to buy more than twelve hats or caps, be it out of this realm;
and a previous Act of Elizabeth had strangely provided that if anyone
sold foreign apparel on credit for longer than eight days to persons
not having £3000 a year he should be without legal remedy against his
debtor.

On the 15th June 1574, an elaborate proclamation complained of
"the wasting and undoying of a great number of young gentlemen"
who were "allured by the vayne shewe of those thyngs." A schedule
was appended in which the costumes prescribed for all sorts and
conditions of men were set forth. In the Star Chamber on June 12th,
1600, my Lord Keeper gravely admonished the judges to look to all
sorts of abuses--"Solicitors and pettifoggers," "Gentlemen that leave
hospitality and housekeeping and hide in cities and borough towns,"
"Masterless men that live by their sword and their wit, meddlers in
princes' matters and libellers," and last, but not least, "to the
vanity and excess of woman's apparel." All was in vain, if we are to
believe the fierce invective of Stubb's _Anatomie of Abuses_. "There
is now," he groans, "such a confused mingle-mangle of apparel, and
such preposterous excess thereof as every one is permitted to flaunt
it out in whatever apparel he listeth himself, or can get by any
kind of means." It was horrible to hear that shirts were sold at £10
a piece, and "it is a small matter now to bestow twenty nobles, ten
pound, twenty pound, forty pound, yea, a hundred pound, of one pair
of breeches (God be merciful to us!)" After this aught else were
anti-climax, and so for the women he can only say they were worse than
the men. A new order of things came in with the next reign, for the act
Jac. I. c. 25, sec. 45, repealed at one stroke all statutes against
apparel. In Scotland they kept up the game some time longer, but one
need not pursue the subject there, though a curious statute of the
Scots James II. (1457) must have a word. It provided that "na woman cum
to Kirk nor mercat with her face mussled that she may nocht be kenn'd
under the pain of escheit of the curchie" (forfeiture of the hood). In
Ireland there was a law (says Spenser) which "forbiddeth any to weare
theyre beardes on the upper lip and none under the chinn:" another
"which putteth away saffron shirtes and smockes," and so forth; but
these were of English importation.

In the North American colonies sumptuary legislation has a history of
its own. In Massachusetts an edict of September 1639, declaims against
the "much waste of the good creatures (not the tipplers, but the
tipple) by the vain drinking of healths," which practice is straightway
forbidden. Excess or bravery of apparel is condemned, and no one is
to wear a dress "with any lace on it, silver, gold silk, or thread
under the penalty of forfeiture." Again, it is provided that children
or servants are not to have ornamental apparel. Here is an individual
case. Robert Coles, in March 1634, for drunkenness is disfranchised
and condemned for a whole year to "wear about his neck, and so to hang
upon his outward garment a D made of red cloth and set upon white"--a
very unromantic scarlet letter! These things, too, passed away, but
in the Maine Liquor Law of 1851, one traces the revival of the old
idea. In England the thing lived not again. Under the Commonwealth
public opinion enforced a "sober garb." Charles II. had some idea of
a national costume, but he was too wise or too careless to attempt
legislation. In 1747 the wearing of the Highland dress was forbidden,
but that was policy, just as centuries before the Jews had a special
garb ordained for them. Also a number of laws were passed to promote
home manufactures: so under Charles I. and Charles II. the entry of
foreign bone-lace was prohibited, though the second monarch granted
licence for importing same to John Eaton for the use of the royal
family. It would also serve, he coolly remarked, for patterns. There is
one other curious example. Too much foreign linen was used, and so the
30th of Charles II. c. 3 ordered the dead (save the plague-stricken)
to be buried in woollen shrouds. The relatives must file an affidavit
with the clergyman as to this, and £5 was the fine for _him_ if he
neglected his part. Did the vision of that unseemly shroud really
disturb poor Nance Oldfield's last moments, as Pope would have us
believe?

  "Odious! in woollen! 'twould a saint provoke!"
  Were the last words that poor Narcissa spoke.
  "No: let a charming chintz and Brussels lace
  Wrap my cold limbs and shade my lifeless face!"

"Narcissa" had her wish: the "Brussels lace" of her head-dress, her
"Holland shift," a "pair of new kid gloves on her cold hands," were the
talk of the town; so they tricked her out for Westminster Abbey.

Almost up to Waterloo the Act lingered on the Statute Book, till some
ingenious rascal brought an action against various clergymen for the £5
penalty, for that they had not certified to churchwardens the cases of
non-compliance. And so, in 1814, the 54th George III. c. 108 swept away
the strange provision.



PRINTED BY TURNBULL AND SPEARS, EDINBURGH



TRANSCRIBER'S NOTES:


  Text in italics is surrounded with underscores: _italics_.

  Obvious typographical errors have been corrected.

  Inconsistencies in spelling, punctuation, and hyphenation have been
    standardized.





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