CQnl Xore: 
 
 millin
 
 
 
 k 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES
 
 The Lawyer in History, Literature, 
 and Humour. 
 
 Edited by WILLIAM ANDREWS, f.r.h.s. 
 
 '• A welcome addition to the lighter literature of the 
 law." — The Tine*. 
 
 "A considerable amount of historical and literary 
 information." — Daily News. 
 
 " An entertaining work. It is rich in the lore and the 
 humour of the law, and ought to be as interesting to the 
 layman as to the lawyer."— The Globe. 
 
 "A handsome volume. . . . The work is printed 
 and and got up in a style that does credit to the 
 well-known firm of publishers." — Cheater Couraut.
 
 THIAL OP A PIG AT LAUSANNE IN IMF. FOURTEENTH CENTCKY.
 
 Begaf Eore : • ♦ 
 
 Curioetftee , . . 
 
 Sate anb Hampers* ♦ 
 
 EDITKl) RV 
 
 Wtfftam (ftttbretea. 
 
 LONDON : 
 WILLIAM ANDREWS & CO., 5, FARRINGDON AVENUE, E.C. 
 
 1897.
 
 AlA 
 
 0>rcfacc. 
 
 ^HE favourable reception given to my volume 
 ■*■ issued under the title of "The Lawyer 
 in History, Literature, and Humour," has induced 
 me to prepare, on similar lines, the present hook. 
 dealing- with curiosities of the law. I hope 
 those who are interested in the study of the 
 byways of literature may find entertainment 
 and instruction in its pages, and that it will 
 win a welcome not only from the legal pro- 
 fusion, but from the reading public. 
 
 I am enabled by the courtesy of Messrs. 
 Chatto & Windus, to reproduce for my frontis- 
 piece, an illustration from a work published by 
 them, under the title of "Credulities Past and 
 Present." 
 
 William Andrews. 
 
 The Hull Press, 
 
 10th December, 1896. 
 
 8677
 
 Contents. 
 
 Bible Lam By S Burgess, w. \. 1 
 
 Sanctuaries. Bj William E A Axon, f.r.s.l. 13 
 
 Trials in Superstitious Ages. By Ernest II Rann s; 
 
 On Symbols. Bj George Neilson - 13 
 
 Lw\ I'mh i; Tin Feudal System. By Cuming Walters • 58 
 
 The Manor and Manor Law. By England Bowlett 83 
 
 Ancient Ten ores. Bj England Howlett - - - 95 
 
 Laws of the Forest. By Ed wan I Peacock, f.s. a. - l" ( .i 
 
 TrialbyJuri in Old Times. By Thomas Frost - 122 
 
 Barbarous Punishments. By Sidney W. Clarke - 132 
 
 Trials of Animals. By Thomas Frost - 149 
 
 Devices of the Sixteenth Centura Debtors. By James 
 
 C. Macdonald, i.s.a., Scot. - 1(31 
 
 Laws Relating to the Gipsies. By William E. A. Axon, 
 
 F.R.S. I.. .... 165 
 
 Commonwealth Law and Lawyers. By Edward Peacock 
 
 I'.S.A. - - ITU 
 
 i in k Fighting i.\ Scotland. - 197 
 
 Cockieleerie Law. By Robert Bird - - - 200 
 
 Fatal Links. By Ernest H. Kami 205 
 
 Post-Mortem Trials. By George Neilson - 224 
 
 Island Laws. By Cuming Walters - -.">7 
 
 The Little Inns of Coort. - - 258 
 
 Obiter. By George Neilson - -07 
 
 Index - - - - 277
 
 LEGAL LORE. 
 
 ffiible Xaw. 
 
 By S. Burgess, m.a. 
 
 AT the very outset of any treatment of so 
 delicate a subject as that indicated by the 
 title of this chapter, we are met by no small 
 difficulty. This consists in the danger of com- 
 mitting unintentional errors of irreverence, and 
 thus offending the prejudices of those who are 
 more or less pledged to their belief in the verbal 
 inspiration of every Bible chapter and verse. 
 With this risk before us, we can only trust to 
 our own sense of a rational view of a subject so 
 full of capabilities of misconstruction. Those of 
 us who can remember the outburst of righteous 
 indignation at the publication of the " Essays 
 and Reviews " and of " Ecce Homo," feel surprise 
 at the quiet indifference with which views ex- 
 pressed in them are now received. This does doI
 
 2 LEGAL LORE. 
 
 at all, or necessarily, mean that men's faith is 
 colder, or that the spirit of reverent religious 
 feelings has died away. The advance of accurate 
 scientific investigation may have upset the faith 
 of some, and given a subject for outbursts of 
 intolerant pulpit denunciations, but we must 
 think that there are signs plainly discernible of 
 a quiet acceptation of modern discovery by the 
 majority of thoughtful and devout believers in 
 the inspiration of Holy Scripture. These re- 
 marks will be found not unneedful as we pursue 
 the examination of this particular branch of 
 Biblical study, namely, the Law as it is found in 
 the Bible, and this will be seen at once when it is 
 laid down as an absolutely necessary condition of 
 our investigation that this same Law can plainly 
 be divided into two distinct portions — that which 
 is of Divine, and that which is of human origin. 
 The bare statement of this fact will offend 
 certain prejudices. The Divine "Fiat" stamps 
 with as marvellous and undoubted clearness, 
 certain portions, as other parts are marked by 
 the progress of human intelligence, the needs of 
 human society, and the force of the human will. 
 
 The very fact of the existence of Law entails 
 the necessity of Penalty, and this may be
 
 BIBLE LAW. 3 
 
 spiritual or corporal. Tin* former depends on 
 the acknowledgment of the rule over as of a 
 Superior Being. Tin- latter is a necessary 
 accompaniment of all and every human life, 
 believing or unbelieving. So in the Bible Law 
 we can easily distinguish between the penalty 
 affixed to the breaking of the first of the Ten 
 CommandmentSj and that which followed on the 
 breaking of the sixth. On the authority of 
 Hebrew scholars, we are told that the use of the 
 Hebrew Article shows that The Law refers to 
 the expressed will of God. If this rule be 
 invariable, it would be of great value, and 
 especially so in the use of the Greek Article. 
 
 The writers of the Psalms gave forth an 
 intense reflection of the old Law ; always pre- 
 suming, as they of course did, that it emanated 
 from the Deity. 
 
 Xow let us be allowed to start with the 
 assumption that the Mosaic is the earliest form 
 of tabulated Law. A most excellent book has 
 just been published, "The History of Baby- 
 lonia," by the Society for Promoting Christian 
 Knowledge. It is a cheap little book, but full of 
 information upon which one feels able to rely. 
 We find there that the Moral Law of Babylonia
 
 4 LEGAL LORE. 
 
 represents the spirit of Bible Law so accurately 
 that it would be absurd to set up any theory of 
 an independent basis. 
 
 We must make a date somewhere, and there- 
 fore we cannot do better than choose a date that 
 can be fairly tested, and safely on this side of 
 mythical eras, — and that is about 1500 B.C. This 
 must appear a very safe and modest date to fall 
 back upon. The Babylonians want us to go 
 back 432,000 years, but to accept this assertion 
 requires more faith than most of us possess. 
 
 For our present purpose there is nothing 
 gained by comparing the Mosaic Law with 
 that discovered with such infinite care and 
 learning in the Babylonian records. The 
 utmost that can be said is that we have 
 startling coincidences, and an intensely interest- 
 ing subject opened out. But there is no single 
 grain of information, and that is what we are 
 just now in search of. We feel quite distrustful 
 of documents, especially stone ones, which give 
 the lifetime of Alorus as extending to 36,000 
 years. That was before the Deluge. The 
 Wandering Jew sinks into insignificance, and is 
 a mere puling infant by the side of such figures 
 as these, because the son of Alorus reigned for
 
 BIBLE I. AW. 
 
 Hi, 800 years. However short the "year" was, 
 the period of life was quite leDgthy. If a year 
 was our week, the last named patriarch was 
 about 1,000 years old. 
 
 This is a departure somewhat from the Law as 
 it is in our Bibles. But it will be an interesting 
 study for sonic kind student to compare that 
 
 Law with the echoes thereof found in Asiatic 
 literature, even far away on the eastern shores of 
 China. The mystery still unsolved is, " How did 
 
 it get there f" 
 
 With the greatest diffidence we make the 
 statement that the first notion of Law was in 
 connection with sacrifice. The time may come 
 when this can be refuted. But at present, leav- 
 ing out of the question natural and unwritten 
 Law, we find no bond but this. Sacrifice comes 
 to us as a Law from a Superior Being. Heathen 
 nations have recognized the efficacy of sacrifice 
 and offerings. 
 
 Man without I jaw was an impossibility. No 
 living tiling can exist without some Law. Thus 
 we look back to the first records of created living 
 things for some Law. Science sheds a great, 
 broad, and even scaring, light on the Law prevail- 
 ing over inanimate nature. The seas and the
 
 6 LEGAL LORE. 
 
 Holds obey it. But for us to make a record of 
 Law as it made its beginning, is a task too great, 
 and it is indeed then we feel that "fools may 
 rush in " where better souls have had to languish 
 in doubt. 
 
 Let us take the Law in the Bible as we can 
 read it, and how few care to read it ! There was 
 a man once who had read the whole of the first 
 five books through twice. Thinking there might 
 be something to gain from such abnormal study, 
 we propounded a few questions on this very 
 subject. The result was a senseless repetition of 
 verses from Leviticus. And yet, to tell the 
 honest truth, there is very little left us to do but 
 to quote. There is a little assistance we can 
 give, and most thankful we are to have it in our 
 power to do so. Let us all the time remember 
 that the Bible Law is the sole foundation of 
 every Law, Human and Divine, as far as we can 
 discover. If it can be proved that the Baby- 
 lonian record with its 40,000 year old kings is to 
 be relied on, then by all means let us accept it. 
 
 We start with the sacrifice as the " compayiion " 
 of the Law. No one can feel hurt by this. It 
 is no good to any of us to ask whether Abel's 
 sacrifice was according to revealed Law or
 
 BIBLE LAW. 7 
 
 anterior to it. It is plain thai sacrifice came 
 fco be the great medium of the Law between man 
 and the great prevailing Law. With this 
 allowed, all the rest is easier to grasp. The 
 early Law among the first people seemed to have 
 no force but in its connection with some limner 
 Power. This Power has been now deputed to 
 earthly sources. 
 
 The writers of the Psalms represent to us a 
 perfect intercourse with the Deity. The question 
 then arises, " On what grounds was this inter- 
 course conducted ?" The answer seems clearly to 
 be on the conditions of the Laws of sacrifice. 
 Now, by comparing the elaborate list of these 
 contained in Smith's " Dictionary of the Bible" 
 with a very careful one in " Notes on the 
 Hebrew Psalms," by W. R. Burgess (1879), we 
 can make out a clear and very useful resume. 
 Leaving out the great sin offerings for the whole 
 people and for the priests, we have the following 
 sin offerings : — 
 
 1. For any sin of ignorance. Lev. iv. A most 
 elaborate ceremonial of sacrifice and blood sprink- 
 ling. We should like to know when the "plea of 
 ignorance" was done away with altogether, as we 
 believe it has no force at all in modern Law.
 
 8 LEGAL LORE. 
 
 2. For refusal to bear witness on oath. Lev. v. 
 This is of very great interest in the light of 
 recent legislation as to affirmation. We have 
 come across many people, it is needless to add 
 grossly ignorant, who have entirely lost sight of 
 the obvious emphasis on the word "False" in 
 the 9th Commandment, placing the whole force 
 on the fact of " Witness." 
 
 3. The Laws as to defilement. These, we 
 presume, have left no trace on modern Law. 
 
 4. The breach of a rash oath, the keeping of 
 which would involve sin. Lev. v., 4. This 
 opens a most interesting subject, but we have 
 not space to enter upon it. From the days of 
 Jephthah and his oath with regard to his 
 daughter until this day, the question has been 
 full of difficulties, and is divided amongst, 
 perhaps, equal advocates for the two opposed 
 views of it. 
 
 5. Sacrilege in ignorance, fraud, swppressio 
 veri, and perjury, were punished by enforced 
 compensation, and the addition of a fifth part of 
 the value concerned in the matter to the priest, 
 or to the person wronged. 
 
 6. Illtreatment of betrothed slaves. Lev. xix., 
 20. This is only curious, but at the same time
 
 BIIJLK LAW. 9 
 
 has a connection with late enactments in criminal 
 
 I jaw. 
 
 7. The Law as to the powers of a father is 
 extraordinary. When one considers the relation 
 now existing and defined by our Law, the revolu- 
 tion is beyond all measure out of reasonable 
 proportion. For a curse, a blow, or even wilful 
 disobedience, the penalty was death '. 
 
 8. The Law of usury is difficult, but the chief 
 points are well known. The main principle of 
 the Law prevails to this day. Let us only 
 notice the striking fact that usury could not be 
 exacted upon the Jews themselves. Does this 
 not offer a fine comment on the grievous usury so 
 cruelly enforced in after years by these people 
 upon the (rentile races ? 
 
 9. Debt. All debts were released at the 
 seventh year. So there was a year of limitation. 
 
 10. Tithe. This Law has been so frequently 
 and ably set forth, that it is entirely one's own 
 fault if it needs any comment. 
 
 11. Poor Laws. These are conspicuous by 
 their absence. There was a legal right of glean- 
 ings, a second tithe to be given in charity, and 
 wages were to be paid day by day. (Dent, wiv.) 
 
 A few rather important forms of legislation
 
 10 LEGAL LORE. 
 
 must be placed here as addenda. We notice the 
 entirely despotic power of the husband over the 
 wife, and all belonging to her. Compare our 
 useful but very late enactment as to married 
 women's property, apart from her almost com- 
 plete irresponsibility. 
 
 The slander against a wife's virginity is 
 punished by a fine only, but the fact of its 
 truth, and therefore no longer a slander, is 
 punished by the death of the woman. This is a 
 most striking proof of the lower room in social 
 judgment awarded to the female Israelite. We 
 notice also that the power of the master over his 
 servant was absolute, but that the master suffered 
 a penalty if his servant or slave died under 
 castration ! Ex. xxi. If he was maimed, he 
 was by this fact allowed his freedom. The rule 
 as to Hebrew slaves is very interesting. It is 
 too long to be quoted here, but it can be easily 
 mastered by a reference to Ex. xxi., Deut. xv., 
 Lev. xxv. 
 
 We notice that there is no protection legally 
 allowed to strangers, and so we find kindness and 
 protection enjoined as a sacred duty. 
 
 We believe that the old list of " Prohibited 
 Degrees," which we saw placed in churches in
 
 BIBLE LAW. 11 
 
 our infancy, and is still to be seen, is in all 
 respects enforced by our presenl Law. Bui we 
 arc not quite sure of this. We can only re- 
 member the \ ague sense of mystery underlying I he 
 clause, which was always put in the largest type : 
 
 "A MAN MAY NOT MARRT Ills GRANDMOTHER." 
 
 Another most interesting Law must be carefully 
 
 noticed, and if possible, more deeply studied. 
 
 In cases of* accidental homicide, there was mostly 
 
 an ''avenger of blood" to be looked for. To 
 © 
 
 escape this untoward follower, cities of refuge or 
 
 sanctuaries were named, and in these the poor 
 
 wretch was safe until the death of the high 
 
 © 
 
 priest. 
 
 As to the legal penalty of adultery, are we 
 quite sure that, according to results, we have 
 greatly improved upon the old Bible Law ? 
 Under this the punishment was death of both 
 offenders. Was it the fear lest the population of 
 the world should be so very seriously lessened 
 that gradually brought this Law to less than a 
 penal one, so that at this day a Royal ''Com- 
 mission " is placed on the offence in the shape of 
 the absolute freedom of the offenders to seek for 
 another opportunity .'
 
 L2 LEGAL LORE. 
 
 Just a few words more as to those who inter- 
 preted the Law. These were the Priests and 
 the Levites. The "Judges" as we read of them 
 in the book of that name, had, with the exception 
 of Samuel, mostly to do with the settlement of 
 political disputes, and the leading out of the 
 people to victory or defeat, as the case might be. 
 But in later times the power of the Sanhedrim 
 was undoubtedly great. 
 
 The king's power was legally limited. But so 
 it is, and has been, in all ages and in all 
 dominions in tlieory ! Yet we find Rehoboam 
 expelled hy Jereboam, and the latter as despotic 
 as the former, just as we find a firm will in 
 Cromwell after the despotism of Charles, in what 
 had been then for centuries the most "Con- 
 stitutionally " governed country in the world !
 
 Sanctuaries. 
 
 By William E. A. Axon, f.r.s.l. 
 
 IN all ages men have attributed a special 
 sanctity to certain localities, usually those 
 devoted to the purposes of worship, and this 
 sentiment has in many lands been utilised in the 
 interests of mercy by exempting those within the 
 precincts from arrest for some, or even all. crimes 
 and offences. In the earlier stages of develop- 
 ment, the punishment of crime was not regarded 
 as a duty of the community. l>ut as an obligation, 
 or privilege () f the injured or of those nearest to 
 him in blood or social relationship. Thus the 
 son of a murdered man had the right to murder 
 the murderer. The general principle of the 
 earlier forms of justice is the lex talionis, bul the 
 infliction of the penalty was mostly in the 
 discretion of the avenger. He might be afraid 
 to attempt to slay a strong or powerful homicide, 
 and be willing to pardon the offence i'^v a money 
 consideration. A criminal who took refuge in a 
 sacred place secured a1 least a breathing time in
 
 1 \ LEGAL LORE. 
 
 which his friends might effect a compromise with 
 his adversary. Greece had its famous asyla, hut 
 the custom of our own country was probably 
 influenced from Hebrew rather than classical 
 sources. In the narrative of the death of Joab, 
 the hesitation of Benaiah shows that it was 
 unusual to slay one who had taken hold of the 
 horns of the altar. The six Cities of Refuse 
 were appointed as places of safety for involuntary 
 homicides, where they were protected from the 
 a vender of blood. Amongst our Anglo-Saxon 
 ancestors, the Church exerted a moderating 
 influence. Every consecrated church had the 
 right to shelter the fugitive from justice for 
 seven days, and when the building was needed, 
 he might be placed in a house provided for that 
 purpose by the church, which was not to have 
 more doors than the church itself. If the criminal 
 was dragged forth from his refuge, the violaters of 
 the sanctuary were fined in varying degrees 
 according to the rank of the ecclesiastical edifice. 
 In addition to the inherent right of each church, 
 special privileges were conferred on certain 
 places by the exercise of the royal prerogative. 
 In 1378, it was decided that the property of 
 fraudulent debtors who had taken sanctuary
 
 sancti-.\i;m> 15 
 
 should be liable for the satisfaction of the claims 
 of their creditors. In L486, Pope tnnocenl 
 VIII. issued a bull relating to English sanctu- 
 aries, by which it was provided thai when the 
 refugee left his asylum, he lost his righl of 
 protection, even though he subsequently returned 
 to the sanctuary. At the same time, the king 
 was empowered to appoint keepers to look after 
 those who having been accused of treason, had 
 taken sanctuary. 
 
 Great changes were made in the law during 
 the reign of Henry VIII. Traitors were wholly 
 exempted from the privilege; those abjuring the 
 realm were not actually banished, but were to 
 remain throughout life in the sanctuary, and if 
 they left it and committed any offence, they might 
 then be brought to trial. All inmates were to 
 wear a badge twenty inches in length and 
 breadth, were forbidden the use of weapons, and 
 were not to leave their lodgings between sunrise 
 and sunset. In 1538, the right of sanctuary 
 was further restricted, and Wells, Manchester, 
 Northampton, York, Derby, and Launceston were 
 declared sanctuaries. Manchester found this 
 privilege to be of such doubtful value that two 
 years later it was transferred to Chester, and
 
 16 LEGAL LORE. 
 
 afterwards to Stafford. In the reign of James I., 
 the right of sanctuary was abolished almost 
 everywhere. The Palatine Counties had their 
 special sanctuaries. In Cheshire, Hoole Heath, 
 ( hermai'sh, and Rudheath were such places of 
 refuse. The abbey of Vale Royal had also a 
 grant. But generally the County Palatine of 
 Chester was a place of resort for those who had 
 come into conflict with the law in other parts of 
 the kingdom, and it was not until the reign of 
 Charles II. that the king's writ ran in the 
 palatinates and other privileged places. Many 
 privileged places in London, Westminster, and 
 South wark were brought within the regular 
 jurisdiction in the reign of William III. and 
 George II. 
 
 We have an instructive picture of the working 
 of the sanctuary system in the case of Man- 
 chester. The Act of 32 Hen. VIII., c. 8, 
 abolished the right of refuge in all places except, 
 and the exception is a considerable one — churches, 
 hospitals, and churchyards. Perhaps a more 
 important exception was that sanctuary was to 
 be denied to those guilty of murder, rape, 
 highway robbery, burglary, house-burning, or 
 sacrilege. Whilst abolishing many sanctuaries,
 
 SANCTUARIES 17 
 
 certain additional places were named as cities of 
 refuge for minor offenders. One of these was 
 Manchester. A year later the town petitioned 
 to be relieved from this distinction. The in- 
 habitants set forth that Manchester had a greai 
 trade in the bleaching of linen yarn, and in the 
 making of linen and woollen cloths and dressing 
 of cotton, and that the influx of dissolute persons 
 to the sanctuary had caused serious damage to 
 the prospects of the town, which, having no 
 mayor, sheriff, or bailiff, and no jail, was badly 
 circumstanced for dealing with these lawless 
 invaders. The request was granted, and the 
 sanctuary removed from Manchester to Chester. 
 But the city of the Deva found it desirable to 
 obtain relief, and a further removal was made to 
 Stafford. 
 
 The fridstool at Hexham still remains, although 
 nearly everything else of the Saxon foundation 
 has perished. This "chair of peace" was the 
 central point of the sanctuary, which extended a 
 mile around. A Durham example of the work- 
 ing of the law may be cited. 
 
 "Memorandum: That on the L 3th day of the month 
 of May, A.D. 1464, one Colson, of Wolsyngham, Durham, 
 
 who hail been detected in a theft, and therefore put and
 
 18 LEGAL LORE. 
 
 detained in gaol, at length contrived to escape, and fled 
 to the Cathedral Church of Durham, in order to avail 
 himself of its immunities, and whilst he was there stand- 
 ing near the bier of St. Cuthbert, prayed, that a Coroner 
 might be assigned to him. Upon John Raket, Coroner 
 of the "Ward of Chester in Strata (sic) coming to him, 
 the same Colson confessed the felony, making upon the 
 spot the corporeal oath that he abjured the realm of 
 England, and would withdraw from it as soon as he 
 could conveniently, and would never return thither, and 
 which oath he took at the bier of St. Cuthbert in the 
 presence of Master George Cornworth, Sacristan of the 
 Cathedral Church of Durham ; Ralph Bows, Knight and 
 Sheriff of Durham ; John Raket (the Coroner) ; Robert 
 Thrylkett, Deputy Sheriff; Hugh Holand, and Nicholas 
 Dixson, and of many others ; by reason of which 
 renunciation and oath all the dress of the said Colson 
 belonged to the said Sacristan and his office ; wherefore 
 the said Colston was enjoined to take off to his shirt all 
 his garments, and deliver them to the aforesaid Sacristan, 
 and he did so, placing them all into his possession, the 
 Sacristan gave up and delivered to him again, gratuit- 
 ously, all his dress that he had up to this occasion been 
 clothed in ; and after that Colstone withdrew from the 
 Church, and was handed over to the nearest constable by 
 the aforesaid sheriff, and so on from constables to con- 
 stables, holding a Avhite cross made of wood as a fugitive, 
 and so he was to be conducted to the nearest seaport to 
 take vessel as one never to return. This was done on 
 the day, month, and year aforesaid." * 
 
 * This and other documents have been collected by Mr. T. J. de' 
 Massinghi, whose monagraph on " Sanctuaries" (Stafford, 1S88) is the 
 chief source of information on the subject.
 
 SANCTUARIES. 19 
 
 The system was one that led to gross abuse. 
 It was held that the right did qo1 extend to others 
 than those whose offences entailed forfeiture of 
 life and limb, but in practice knavish debtors, 
 
 fraudulent executors, etc., availed themselves of 
 the protection. There was plenty of scope for 
 dispute as to jurisdiction. In 1427, the Abbot 
 of Beaulieu was required to give proof of his 
 right to shelter William Wawe, who is described 
 as as heretic, traitor, common highwayman and 
 public robber. " Wille Wawe was hanged," is 
 the sum of the matter as recorded by Stowe. 
 Between 1478 and 1539, at Durham, 283 persons 
 took refuge who were, as principals or accessories, 
 accused of homicide. There were sixteen debtors, 
 four horse-stealers, nine cattle-stealers, and four 
 house-breakers. One had been charged with 
 rape, and seven with theft. One had been back- 
 ward in his accounts, one had harboured a thief, 
 and one had failed to prosecute. Sir John 
 Holland, in revenge for the death of his esquire, 
 killed the son and heir of Hu^h, second Earl of 
 Stafford, and then took sanctuary at Beverley. 
 The murderer, in this case, was the half-brother 
 of Richard II., but it was with great difficulty 
 that the king was induced to grant a pardon.
 
 20 LEGAL LORE. 
 
 The church of St. John of Beverley had a 
 charter from Athelstan, and near the altar was the 
 Fridstool, or chair of peace, " to which what 
 criminal soever flies hath full protection." The 
 privilege extended for a radius of about a mile 
 round the minster, and the limits were marked by 
 stone crosses. Infraction of the right of 
 sanctuary was punishable by severe penalties, and 
 to take a refugee from the Fridstool was to 
 incur both secular and ecclesiastical penalties, the 
 latter extending to excommunication.* 
 
 The widow of Edward IV. fled with her younger 
 children for safety to the sanctuary of West- 
 minster after her eldest son had fallen into the 
 keeping of the Duke of Gloucester. Sir Thomas 
 More reports the discussion in the Council of the 
 Protector, and the arguments used by Cardinal 
 Bourchier, which induced the queen to give up 
 the Duke of York. The boy king, who was 
 never crowned, and his brother were murdered in 
 the Tow T er. It is noteworthy that this unfor- 
 tunate monarch was born in the sanctuary of 
 Westminster when his father was in exile. 
 Skelton, the poet, died in this same sanctuary. 
 
 * See Andrews' "Old Church Lore," 1891, and the authorities 
 there cited.
 
 SANCTUARIES. 21 
 
 The privileges of the sanctuary were qoI 
 always respected. When Geoffrey, Archbishop 
 
 of York, took refuge in St. Martin's Priory, 
 Dover, he was dragged from the altar in his 
 pontifical robes by order of the bishop of Ely, who 
 was then Chancellor of the Kingdom. But this 
 arbitrary proceeding was not the least of the 
 causes of the downfall of William of Longchamp. 
 When William Longbeard, who had been con- 
 demned to death, took sanctuary at St. Mary-le- 
 Bow, Hubert de Burgh ordered the church 
 tower to be set on fire to compel him to come 
 forth. Longbeard abandoned his place of refuge, 
 and was dragged to Tyburn, and there hanged. 
 But although de Burgh was Archbishop of 
 Canterbury and Justiciary of the Kingdom, and 
 the Church was his own peculiar, his violation of 
 sanctuary led to the loss of his great secular 
 disrnitv. Later, when he had himself to seek 
 refuge, a great debate arose as to his 1 wiving been 
 forcibly taken from a sanctuary, and he was 
 restored to its protection, and escaped to Wales. 
 
 Whilst the same rights of sanctuary existed in 
 Ireland and in Wales, they wire apparently nol 
 made use of to any great extent. In Scotland, 
 the churches of Wedale, near Galashiels, and of
 
 22 LEGAL LORE. 
 
 Lesmahagow, near Lanark, were the most famous 
 of the religious sanctuaries. The latter had also 
 a royal charter from David I. These sanctuaries 
 ended with the Reformation. The abbey of 
 Holyrood and its precincts, which include Arthur's 
 Seat and the Queen's Park, gave protection to 
 debtors until, by the abolition of imprisonment for 
 debt, its privileges ceased to have any meaning. 
 One of those who thus sought refuge at Holyrood 
 during a part of his career was Thomas de Quincey. 
 Sanctuaries probably served a useful purpose in 
 ages when the law was harsh and indiscriminate 
 in its punishment of offenders. The limited 
 protection afforded by the Church sanctuaries 
 at least gave an opportunity for the first heat 
 of revengeful feeling to subside, and the greater 
 sanctuaries protected not merely vulgar offenders, 
 but those whom the stormy tide of politics had 
 placed at the mercy of their enemies. As the law 
 became stronger, and the course of justice more 
 certain, the need for these refuges ended, and those 
 that continued were public nuisances, and mere 
 centres of crime and anarchy, such as Scott 
 has described for us in his picture of Alsatia. We 
 may be thankful that sanctuaries are now merely 
 objects of antiquarian interest and speculation.
 
 trials in Superstitious R$ce. 
 
 By Ernest H. Bank. 
 
 IN superstitious ages, when belief in the power 
 of the law to adjust all quarrels, to hold the 
 balance equally between man and man, and to 
 accord to each one his rights, was less prevalent 
 than it is at the present daj', disputants naturally 
 resorted to other tribunals for the settlement of 
 their claims. A perfect system of law was 
 impossible ; what law existed was arbitrarily 
 administered, often for the benefit of the most 
 powerful litigant, and the claimant with only justice 
 on his side often had the mortification of seeing a 
 verdict given against him. During the develop- 
 ment of a system of law-giving, when the 
 accumulated experience of humanity had not 
 sufficed to produce perfection, man in his dark- 
 ness, his ignorance, and superstition, turned to 
 the supernatural, and devised certain ceremonies 
 by which the judgment of God might be evoked 
 to demonstrate the <>uilt or innocence of the 
 accused.
 
 24 LEGAL LORE. 
 
 The antiquity of the ordeal, as it was called, 
 cannot be measured. Such a form of trial is found 
 to have existed in the earliest ages, and even now 
 traces of it linger among savage tribes of the 
 earth. In Africa especially the ordeal is well 
 known. During his travels among the negro 
 tribes north of the Zambesi, Dr. Livingstone 
 encountered the curious practice of the " mauvi," 
 which consisted of making all the women of a 
 tribe drink an infusion of " goho," for the purpose 
 of ascertaining which of them had bewitched a 
 particular man. The accused women were drawn 
 up in a row before the hut of the king, and the 
 drauo-ht administered to them. Those who were 
 unable to retain the horrible decoction, and 
 vomited, were considered innocent of the charge : 
 those who were purged were adjudged guilty, 
 and put to death by burning. 
 
 The Calabar bean is also used by the natives 
 of Africa in the form of an emulsion as an ordeal 
 for persons accused of witchcraft, proof of in- 
 nocence consisting of ability to throw off the 
 poison by vomiting. Among the Barotse tribes 
 the process is conducted by deputy, the testing 
 liquid being poured down the throat of a dog 
 or cat, and the accused person being treated
 
 TRIALS IN SUPKIiSTITlol's ACES. 25 
 
 according to the etl'eet produced on the animal. 
 Among the Dyak tribeslumps of salt are thrown 
 into a bowl of water by the accuser Jind accused, 
 and judgment is given againsl the owner whose 
 lump disappears first. Another method adopted 
 by the Dyaks is for each of the two parties to 
 choose a mollusc, and to squeeze over it a few 
 drops of lime-juice; the owner of the mollusc 
 which moves first under the acid stimulant losing 
 the case. Ratzel mentions that among the Malay 
 tribes ordeals by fire, ducking, pulling a ring out 
 of boiling water, or licking red-hot iron, are still 
 frequent. Where the ordeal fails to produce the 
 desired result, wager of battel, in reality another 
 form of ordeal, is resorted to. Among the Tagals 
 it is usual to light a consecrated candle, and to 
 consider the person guilty of the crime under 
 consideration to whom the candle fiame is blown 
 during the performance of the ceremony. The 
 Igorrotes have a more painful method of fixing 
 sruilt. The accuser and the accused are placed 
 together ; the backs of their heads are scratched 
 with a sharply-pointed bamboo stick, and the 
 man who loses most blood also loses his case. 
 
 In Hawaii ordeals are administered by the 
 priests, the suspected person being compelled t«>
 
 26 LEGAL LORE. 
 
 hold his hands over consecrated water, and 
 adjudged guilty if the liquid trembles in the 
 vessel while the priest looks at him. The 
 Siamese have a form of ordeal which consists 
 of making the two parties to a suit swallow 
 consecrated purgative pills, the man who retains 
 them for the greater length of time winning the 
 case. 
 
 Even among the comparatively enlightened 
 races of the peninsula of India, ordeals of the 
 most elaborate and curious character are practised 
 at the present time. Warren Hastings mentions 
 that in his day no fewer than nine forms were 
 in use among the Hindoos. The ordeal of the 
 balance was commonly employed, and is still in 
 force in certain districts. The beam is adjusted, 
 and both scales made perfectly even. After the 
 accused has been bathed in sacred water, and the 
 deities worshipped, he is placed in the scale-pan 
 and carefully weighed. When he is taken out 
 the Pandits pronounce an incantation, and place 
 round his head a piece of paper setting forth the 
 charge against him. Six minutes later he again 
 enters the scale, and the balance is called upon to 
 show his fault or innocence. If he weigh more 
 than before, he is held guilty ; if less, innocent ;
 
 TRIALS IN SUPERSTITIOUS A<;ES. 27 
 
 if exactly the same, he must be weighed a third 
 time, when, according to the Mihicshrnl, a 
 difference in his weight will be observable. 
 Should the balance break down, the mishap 
 would be considered as proof of the man's guilt. 
 The ordeal of the balance is not altogether 
 unknown in English history, for an incident is 
 recorded in which Susannah Haynokes, of Ayles- 
 bury, was accused of bewitching her neighbour's 
 spinning-wheel, and preventing it from working 
 properly. Susannah loudly protested her in- 
 nocence, and demanded an ordeal to prove it. 
 She was taken to the church, and weighed in a 
 semi-nude condition against a copy of the Bible, 
 and being able to outweigh the Scriptures, was 
 considered to be innocent of the offence charged 
 
 o 
 
 against her. Possibly it never occurred to the 
 owner of the spinning-wheel that lack of oil was 
 the cause of its refusal to go round. 
 
 Among other ordeals in use by the Hindoos is 
 that of iron, the accused being required to lick a 
 red-hot bar of the metal. If his tongue be burnt, 
 he is considered guilty, if not, he is reckoned 
 innocent, but it cannot be supposed that among 
 tribes addicted to this practice the injury to the 
 tongue is considered sufficient punishment for
 
 28 LEGAL LORE. 
 
 the offence with which the suspect is charged. 
 The poison ordeal, employed also, it may be 
 noted, by the Hovas of Madagascar, is commonly 
 practised. A small quantity of visha?td{/a, a 
 poisonous root, is mixed with clarified butter, 
 which the accused must eat from the hand of 
 a Brahman. If the poison produce no visible 
 effect, he is absolved ; otherwise, condemned. 
 In other cases the hooded snake called ndga is 
 placed in a deep earthen pot, from which the 
 accused has to take a ring, seal, or coin without 
 being bitten, when he is considered innocent. In 
 trial by the Cosha the accused is made to drink 
 three draughts of water in which images of 
 the Sun, of Devi, and other deities have been 
 washed. If, within fourteen days, he is afflicted 
 with any form of sickness, he is considered guilty. 
 For the fire ordeal an excavation is made in 
 the ground, and filled with burning pippal wood. 
 Into this a person must walk bare-footed without 
 hurt in order to prove his innocence. Hot oil 
 ordeals are also in force, when the accused has to 
 thrust his hand into the liquid without being 
 burned ; and chewing a grain of consecrated rice, 
 which, if it comes from the man's mouth dry 
 or stained with blood, is considered proof of his
 
 TRIALS IX SUPERSTITIOUS A.GE8. 29 
 
 ofuilt. At other times a silver image of the 
 Genius of Justice, called Dharma, is tin-own 
 with an image of iron or clay, called Adharma. 
 
 into an earthen jar ; and the accused is acquitted 
 if he bring out the silver image, but condemned 
 if he draw forth the iron. 
 
 The history of the middle ages furnishes 
 numerous examples of ordeals employed in the 
 settlement of disputes, which in the absence of a 
 strong and impartial system of law-giving, found 
 great favour with the people of all ranks. They 
 were peculiarly distinguished by the appellation 
 of Judicium Dei, or judgments of God, and some- 
 times called vulgaris purgatio. The law of the 
 Church sanctioned the ordeal throughout Europe 
 for a considerable period, and faculties were freely 
 given by the clergy for the performance of these 
 strange ceremonials. Indeed, the whole business, 
 as a judgment of God, was frequently conducted 
 by the servants of the Church, always in con- 
 secrated ground, and the sacred edifice itself was 
 occasionally requisitioned in order to add greater 
 solemnity to the proceedings. The ordeal of fire, 
 practised, curiously enough, by the Greeks in the 
 time of Sophocles, was allowed only to persons of 
 high rank. The accused was required to carry
 
 30 LEGAL LORE. 
 
 a piece of red-hot iron for some distance in his 
 hand, or to walk nine feet, bare-footed and blind- 
 fold, over red-hot ploughshares. The hands or 
 feet were then immediately bound up, and in- 
 spected three days afterwards. If, on examination, 
 no injury was visible, the accused was considered 
 innocent ; if traces of the burning remained, he 
 was reckoned guilty, and received punishment 
 commensurate with his offence, without any 
 discount for the harm he had already suffered. 
 The most notable historic instance of this form 
 of ordeal is that of Queen Emma, mother of 
 Edward the Confessor. She was accused of a 
 criminal intrigue with Alwyn, Bishop of Win- 
 chester, and condemned to the ordeal of fire, 
 which, on this particular occasion, took the form 
 of nine red-hot ploughshares, laid lengthwise at 
 irregular intervals, over which she was required 
 to walk with bandaged eyes. She passed success- 
 fully through the severe trial, and at the conclusion 
 innocently asked when the ordeal was about to 
 begin. The Queen's innocence was, to the 
 popular mind, established more substantially 
 than would have been possible in any existing 
 court of law. She was not the only gainer by 
 the restoration of her reputation, for in consider-
 
 TRIALS IN SUPERSTITIOUS AGES. 31 
 
 ation of the success which had attended her, she 
 
 settled twenty-one manors on the Bishopric and 
 Church of Winchester. 
 
 In the Eastern Empire the fire ordeal was 
 largely used by the Emperor Theodore Lascoris 
 for the discovery of the origin of the sickness 
 with which he was afflicted. His majesty 
 attributed the malady to magic, and all suspected 
 persons were required to handle red-hot iron in 
 order to establish their guilt or innocence, ''thus 
 joining," as an ancient scribe exclaims, " to the 
 most dubious crime in the world the most dubious 
 proof of innocence." 
 
 Fire, as we have said, was employed for persons 
 of high rank : those of baser degree, especially 
 bondsmen and rustics, were tried by the ordeal of 
 boiling water. " I will go through fire and water 
 for my friend" was a common expression in the 
 middle ages, and, though having lost its original 
 significance, the saying has persisted to the present 
 time as a declaration of self-sacrifice. The accused 
 person was required to take a stone from a pan of 
 boiling water, to insert the hand and wrist into 
 the liquid, and in case of the triple ordeal, to 
 plunge the arm in up to the elbow. When cold 
 water was employed, and in cases of witchcraft
 
 32 LEGAL LORE. 
 
 this was generally resorted to, the suspect was 
 flung into a river or pond. If he floated without 
 appearance of swimming, he was pronounced 
 innocent ; if he sank, he was condemned as guilty 
 —rather a superfluous proceeding, considering that 
 the man was in all probability already drowned. 
 
 It would be goino- too far to assert that in all 
 cases these ordeals were carried out with the 
 strictest impartiality and consideration for the 
 ends of justice. Means were not unknown to 
 circumvent the peculiar forms of the trial, and 
 precautions were often taken by the clergy, as 
 mio-ht have been done in the case of Queen 
 Emma, to protect those whom they desired to 
 clear of suspicion. It is a well-known fact that 
 white-hot iron may be licked with impunity, and 
 the Mevleheh dervishes are proficient in the trick 
 of holding red-hot iron between their teeth. 
 Sometimes cold iron, painted red, was employed, 
 and at others the fire reduced in temperature at 
 the critical moment, the suspect receiving only 
 such injury as would heal in the three days 
 allowed before his hand was examined. Artificial 
 preparations were frequently employed, while the 
 suspect had at times the option of going alone 
 into the church, and in all cases of keeping the
 
 TRIALS IN SUPERSTITIOUS A.GES. 33 
 
 crowd of spectators at a distance, which made 
 minute inspection of the proceedings impossible. 
 
 Another form of ordeal was the judicium 
 cruris, or trial of the Cross, employed largely in 
 criminal cases. When an accused person had 
 declared his innocence on oath, and appealed to 
 the judgment of the Cross, two sticks were 
 prepared precisely like one another. The figure 
 of the Cross was cut upon one of these sticks, and 
 the other left blank. Each of them was wrapped 
 in fine white wool, and laid upon the altar or the 
 relics of the saints, after which a prayer was 
 uttered that God might discover by unmistakable 
 signs whether the prisoner was innocent or guilty. 
 The priest then approached the altar, took 
 up one of the sticks, and uncovered it. If it 
 happened to be the stick marked with the cross, 
 the prisoner was pronounced innocent ; if it were 
 the other, he was condemned as guilty. A 
 different form of this ordeal was adopted when 
 the judgment of the Cross was invoked in civil 
 cases. The judges and all parties to the suit 
 assembled in the church. Representatives, 
 generally the youngest and strongest priests, 
 were then chosen, and required to stand one on 
 each side of a crucifix. At a given signal they
 
 34 LEGAL LORE. 
 
 stretched out their arms at full length, so as to 
 form a cross with their body, and in this painful 
 posture they continued to stand during divine 
 service. The party whose representative dropped 
 his arms first, or shifted his position, lost his 
 cause. History records a dispute over a 
 monastery, between the Bishop of Paris and the 
 Abbot of St. Denis, which was settled in this 
 manner. A crowd assembled, and arranged bets 
 on the result, but those who supported the 
 Bishop's man were sadly disappointed, for he 
 dropped his arms at an early stage, and lost the 
 cause of his employer. The ordeal of the Cross 
 was abolished by Louis de Debonnaire in 816, on 
 the ground that it was irreverent in character. 
 
 Ecclesiasticism also played a prominent part 
 in the ordeal of the corsnedd, to which 
 persons accused of robbery had to submit. 
 The corsnedd was a piece of bread made of un- 
 leavened barley, to which cheese made of ewe's 
 milk in the month of May was added. Over 
 the whole, one ounce in weight, a form of 
 exorcism was uttered, desiring of the Almighty 
 that the corsnedd might cause convulsions and 
 paleness, and find no passage, if the man were 
 really guilty, but might turn to health and
 
 TRIALS IN SKPEKSTITIOI'S AOES. 35 
 
 nourishment if he were innocent. The practice 
 is strongly remindful of the trial of jealousy in 
 use among the Israelites, by which an unfaithful 
 woman was compelled to drink holy water con- 
 taining dust of the floor of the tabernacle, 1 1 x ■ 
 belief being that she would be stricken with 
 illness if she were guilty. The corsnedd was 
 given to the suspected person, who at the same 
 time read the sacrament. Godwin, Earl of Kent, 
 was, in the reign of Edward the Confessor, 
 accused of murder, and forced to the ordeal 
 of the corsnedd, when, according to ancient 
 chroniclers, the consecrated food stuck in his 
 throat, and caused his death. Both the ex- 
 pressions, " I will take the sacrament upon it," 
 and " May this morsel be my last," are supposed to 
 have been derived from this curious form of law- 
 giving. A somewhat similar custom is in vogue 
 
 © o © 
 
 in Russia at the present day. Balls of bread are 
 made and dropped into consecrated water, the 
 priest meanwhile reciting the formula : — " Ivan 
 Ivanoff, if you are guilty, as this ball falls to 
 the bottom, so your soul will fall into hell." 
 As a rule the culprit confesses immediately. 
 In Ceylon, also, a similar form of ordeal is by 
 no means unusual. A man suspected of theft is
 
 36 LEGAL LORE. 
 
 required to bring the person he holds in greatest 
 affection before the judge, and placing a heavy 
 stone on the head of his substitute, say, " May 
 this stone crush thee to death if I am guilty of 
 the offence." The Tartar sets a wild bear and a 
 hatchet before the tribunal, saying as he does so, 
 "May the bear devour me, and the hatchet chop 
 off my head, if I am guilty of the crime laid to 
 my charge." 
 
 Another form of ordeal which was cherished 
 and practised with assiduity was that of the bier, 
 founded on the belief that the body of a murdered 
 man would show signs, by bleeding or movement, 
 when his assassin approached. The accused had 
 to place his hand on the naked breast of the 
 corpse, and declare his innocence, though the 
 slightest change in the body was considered proof 
 of his guiltiness. This method of finding out 
 murderers had its origin, it is believed, in 
 Denmark, where it was in the first instance adopt- 
 ed by King Christian II. for the discovery of the 
 murderer of one of his courtly followers. The belief 
 has survived to a certain extent to the present day, 
 for even English peasants still expect all persons 
 present at a funeral to touch the body in proof 
 of their bearing no ill-will towards the dead man.
 
 TRIALS l\ SUPERSTITIOUS AGES. 37 
 
 Not so frequently employed, but still occasion- 
 ally mot with in ancient history, was the ordeal of 
 compurgation, where the innocence of the accused 
 was sworn to by his friends, and judgment wenl 
 against the party whoso kindred refused to conic 
 forward, or who failed to provide the necessary 
 number of compurgators. It was a conflict of 
 numerical strength, and the higher number 
 carried the day. 
 
 Another custom, still surviving, was to tic a 
 key in a Bible opened at Psalm L, verse 18, 
 " When thou sawest a thief, then thou con- 
 sentedst with him," and balance the whole, the 
 belief being that the book would turn in the 
 hands of a guilty person. 
 
 Challemnno- the accuser to mortal combat was 
 a proceeding which found much favour with the 
 warlike spirit of the middle ages. Of course it 
 was considered that Providence would defend the 
 risrht, even if a miracle were needful, but never- 
 theless each party placed considerable reliance on 
 his own strength of arm and fighting skill. These 
 judicial combats were in ancient times practised 
 amoner the Jews, and were also common in 
 Germany in remote ages, though they do not 
 find mention in A.nglo-Saxon laws, and were
 
 38 LEGAL LORE. 
 
 apparent]} 7 not in use in England until after the 
 Norman Conquest. In Germany a bier was 
 placed in the midst of the lists, accuser and accused 
 stood respectively at the head and foot, and 
 remained for some minutes in profound silence 
 before they commenced fighting. Civil, criminal, 
 and military cases were, in the absence of sufficient 
 direct evidence, decided by means of the judicial 
 combat or wager of battel. The offended party 
 had the right to challenge his accuser to settle 
 the dispute by force of arms, and the forms and 
 ceremonies connected with the trial are well 
 illustrated in the opening scenes of "King Richard 
 II." The combat took place in the presence of 
 the court itself, Heaven being expected to give 
 the victory to the innocent or injured party. It 
 was commonly resorted to in charges of treason, 
 as in the above-mentioned dispute between Henry 
 Bolingbroke and Thomas Mowbray, when the 
 ceremonies were of an imposing character. As 
 in the majority of ordeals, deputies could be 
 chosen to perform the requisite duties, but the 
 principals were in all cases answerable for the 
 consequences. No commoner was allowed to 
 challenge a peer of the realm, nor could the 
 citizens of London, for some obscure reason,
 
 TRIALS IN SUPERSTITIOUS AGES. 39 
 
 indulge in these popular forms of legal ad- 
 ministration. Each of the combatants professed 
 
 his willingness to make good his claims, body for 
 body — 
 
 "For what 1 speak 
 .My body shall make good upon this earth, 
 Or my divine soul answer it in heaven." 
 
 Neither sorcery nor witchcraft had to be em- 
 ployed, and the battel was to continue until the 
 shades of evening had fallen, and the stars 
 appeared. If the accused were killed, his blood 
 was attainted, but if he were only vanquished, he 
 was immediately condemned to an ignominious 
 death by hanging, providing he accepted his fate 
 without demur. The defeated party, however, 
 might crave his life, in which case he was allowed 
 to live as a recreant, on condition that he 
 retracted unreservedly the false statements that 
 he had sworn. 
 
 At the Durham Assizes, on August 6, 1638, 
 a wager of battel was offered and accepted, for 
 deciding the rights to land at Thickley, between 
 Ralph Claxton, demandant, and Richard Lilburne, 
 tenant. According to an old chronicle, "the 
 defendant appeared at 10 o'clock in the forenoon, 
 by his attorney, and brought in his champion,
 
 40 LEGAL LORE. 
 
 George Cheney, in full array, with his stave and 
 sandbag, who threw down his gauntlet on the 
 floor of the court, with five small pieces of coin 
 in it. The tenant then introduced his champion, 
 William Peverell, armed in the same manner, 
 who also threw down his gage." But the 
 champions, instead of being allowed to fight, 
 were ordered to appear at the Court of Pleas in 
 the following month. Legal arguments followed, 
 and the trial by battel was eventually postponed 
 indefinitely. 
 
 In criminal trials no deputies were allowed, and 
 the parties were compelled to settle their quarrel 
 in person, unless one of them was a woman, an 
 infant, or a man over the age of sixty, or was 
 afflicted with lameness or blindness. In the case 
 of any of these disqualifications, trial by jury 
 could be claimed and insisted upon. One of the 
 most remarkable wagers of battel occurred in 
 1817. A young woman named Mary Ashford, 
 living at Erdington, near Birmingham, was 
 supposed to have been murdered early one 
 morning when returning from a dance. Suspicion 
 fell on Abraham Thornton, a partner of the 
 previous night, who was tried for the crime and 
 acquitted. Evidence for another trial was
 
 TRIALS IN SUPERSTITIOUS Ac lis. n 
 
 collected, and Thornton was appealed by William 
 Ashford, the direct heir male of the murdered 
 woman. I Jut when, the proceedings commenced, 
 Thornton's counse] took refuge under a very old 
 Act, by which no man could be tried on a second 
 charge of murder, on which he had been 
 acquitted, except by wager of battel before the 
 king, between the heir-at-law of the person 
 murdered and the accused. The appellant, Mary 
 Ashford's brother, declined the combat on the 
 ground of physical inferiority, and Thornton 
 was discharged. Immediately afterwards the 
 antiquated law was removed from the Statute 
 Book. 
 
 This marked the end of trials by ordeal as 
 recognised by law. The process of extermination 
 had long been in progress, but popular opinion 
 was against reform, and certain of these curious 
 customs survived. A though the clergy had at 
 first taken part in these ceremonials, and presided 
 over them in church, they came in time bo 
 discountenance them. The canon law declared 
 against ordeals as being the work of the Devil, 
 and a decree to this effect was issued in the 
 eighteenth canon of the fourth Lateral) Council 
 in November, L215. Upon this authority it was
 
 1-2 LEGAL LORE. 
 
 thought proper, says Blackstone (as had been 
 done in Denmark a century ago), "to disuse and 
 abolish these trials entirely in our courts of justice 
 by an Act of Parliament, Henry III., according 
 to Sir Edward Coke, or rather by an order of 
 the Kins: in Council." The actual date of the 
 abolition of ordeals by fire and water was 1261 
 On the Continent these forms of trial had been 
 abolished by civil and ecclesiastical law much 
 earlier, although in 1498 an attempt was made 
 to test the doctrine of Savonarola by means of a 
 challenge from one of his disciples to a Franciscan 
 friar to walk through a pile of burning wood. 
 Old customs die hard, and the incident is a 
 curious and interesting instance of the persistence 
 of a popular form of trial even among the 
 members of a party by which it had been 
 condemned.
 
 ©n Symbols. 
 
 By George Neilson. 
 
 THE wayward fancies of mankind arc well 
 illustrated in the diversity of symbolic 
 observances, some never losing 1 their meaniic, 
 some absolutely unintelligible in their historic 
 form, and some as much characterised by a 
 befitting dignity, as others are by the want of it, 
 All once were self-explanatory and possessed a 
 measure of propriety proportioned to the state of 
 the people amidst whom they originated. But 
 tradition is long, centuries elapse, each modifying 
 a ceremony, and when the procedure emerges 
 within the knowledge of record, it has often so 
 lost touch with its surroundings, that it is 
 hopeless to speculate how it arose. 
 
 Symbols are drawn from and applied to every 
 field of human activity. Of course in a general 
 sense man expresses himself only so, and a regular 
 alphabet is but a comparatively trifling advance 
 on the language of signs. What wc call civiliza- 
 tion, is at bottom little more than a clear
 
 -U LEGAL LORE. 
 
 recognition of certain symbols of government. 
 The Queen's crown, the Judge's ermine, the 
 Mayor's mace, what are they else? The sceptre 
 is only a glorified stick, of which the policeman's 
 baton is a humbler shape. Each embodies the 
 great thought that behind it stands a nation's 
 determination to be ruled by law. 
 
 In the history of law, symbol and the traces of 
 symbol meet us at every turn. The middle ages 
 teemed with them. Roman law had bequeathed 
 not a few. Perhaps the most wondrous of them 
 all is one that has long ceased to have any legal 
 connection, although its mark is all-powerful over 
 civilisation. How daring was the imagination 
 which prompted the choice, for the heraldic 
 badge of Christianity, of the dread emblem of 
 capital punishment by crucifixion ! In the pure 
 domain of the law of the early and middle ages, a 
 perfect wilderness of symbols presents itself to 
 eyes which strive to explore the origins of 
 institutions. 
 
 Law is ever beset by a tendency towards 
 formalism, and in early times a severe insistence 
 upon ceremony, no doubt, gave prominence and 
 prescriptive sanction to symbolic acts. Law and 
 custom after all only mean that the way things
 
 ON SYMBOLS. 15 
 
 were done yesterday is the safesl way of doing 
 ili. -in to-day. The acceptance of a common form 
 implies a very large public consent, which is 
 equally necessary to its abrogation, once it is 
 
 accepted. No small part of its value lies in its 
 certainty, "certainty which," Coke well says, "is 
 the mother of quiet and repose." 
 
 Hence the fixity and longevity of many em- 
 blematic methods of performing acts affecting 
 status or property rights. The constitution or 
 discharge of slavery, or the transfer of a slave 
 from one master to another, had a variety of set 
 forms. A freeman might deliver himself to 
 serfage by putting a leathern thong upon his 
 neck. When a church was the donee, the 
 ceremony might take place at the altar, and the 
 man present himself there with cords round his 
 throat. "Thus he offered himself," says an old 
 record, "to the Almighty Lord." A coin or two 
 on the head was also a customary part of the 
 process. In the manumission or liberation of the 
 slave, these coins struck off the head served the 
 purpose of declaring him free, as did the 
 companion symbol of open doors, or the placing 
 him at four cross roads, and bidding him go 
 whither lie would. Another common symbol of
 
 46 LEGAL LORE. 
 
 enfranchisement was the delivery of an arrow, 
 thought to denote the right confined to freemen 
 of bearing arms. 
 
 Even a short account of legal symbols would 
 make a very large treatise. Single instances 
 such as the ring, the staff, the glove, and the 
 horn would each furnish material for an elaborate 
 monograph. The theme would call for a dis- 
 cussion of the great war of investitures, and 
 would touch very many points of ecclesiastical, 
 civil, and criminal law and history. The scope of 
 the present unambitious article is only directed 
 to a few illustrations in relation to the transfer of 
 land, the act of divesting the old proprietor and 
 clothing the new with his rights. Although such 
 symbols usually had a connexion with the subject 
 conveyed, there are many types in which that 
 connexion is not readily traceable. Why for 
 example amongst the Saxons should a resignation 
 of all interest in an estate have been made by a 
 gesture with curved fingers ? One can under- 
 stand why a sod should be so often a token, but 
 why does the glove play so large a part in 
 Merovingian and Carolingian conveyancing? 
 Was it, indeed, as German scholars speculate, 
 because the donor metaphorically took it off and
 
 ON SYMBOLS. 17 
 
 the donee put it on, making his the covered hand, 
 the vestita manus, thai would defend the land 
 conveyed? How came an eleventh century 
 magnate to attest his renunciation of justiciary 
 rights to a monastery "by cutting off the top of 
 the silk band by which his fur robes were 
 fastened to his breast, and with that segment 
 re-investing three monks therein?" In tins case 
 a portion of that silken band was carefully sewn 
 up, as an adminicle of evidence, in the writ 
 recording the transaction. How again came it 
 that a claim of feudal service might be departed 
 from by the delivery and placing of a wand 
 (virgula) upon the altar? All these are much 
 more personal symbols than real. • They are 
 mainly guarantees of the grantor's good faith. 
 They do not seem to be primarily emblems of 
 possession. The contrast between these two 
 classes will be best appreciated by considering 
 types of the latter. 
 
 When a purchaser proceeded to set up fresh 
 boundary marks, or to take a spade and dig, or 
 when he received delivery of a sod with grass or 
 shrubbery upon it, or lifted from the ground the 
 charter granted by the seller with amongst other 
 things a sod laid thereon, the act of seisin, the
 
 48 LEGAL LORE. 
 
 formal occupation is visibly completed. Of this 
 class of symbol, the sod fcespes) is probably the 
 best and most typical for a few words of illus- 
 tration. We read of litigants laying judicial 
 claim to land in the mall or public court by 
 putting their spears into a sod, representative of 
 the subject in dispute. We hear of the sods 
 being cut in the shape of bricks, and of their 
 being preserved as memorials, with the twigs 
 growing in and incorporated with them. We 
 hear of sods offered on the altar when the grant 
 of land was being made to a church. We hear 
 of transfer from one vassal to another being 
 accomplished by the grantor delivering the sod 
 to the over-lord, and the latter passing it on to 
 the grantee. 
 
 Of all the symbols employed in connection 
 with feoffments, however, the rod (festuca) had 
 the widest vogue on the continent. Not that it 
 was restricted to transactions in land ; it was a 
 more or less lineal descendant of the Roman 
 stipulation, a contract visibly expressed by the 
 parties breaking a straw between them. Under 
 Charlemagne a renunciation by certain priests 
 was made by them " holding straws in their 
 hands and casting them from them before God
 
 ON SYMBOLS. l*' 
 
 and his angels." Later this appears as a 
 recoernised method of renunciation, bui with a 
 rod substituted for the straw. Tn some eases the 
 fact of renunciation is emphasised by the rod 
 being not only thrown to the ground by the 
 resigner, but trodden under foot when there. 
 The role of the festuca was peculiarly important 
 amongst the Frankish peoples. # Galbert of 
 Bruges, a Flemish twelfth century historian, 
 states that the counts of Flanders gave in- 
 vestitures to their vassals, after receiving their 
 fealty and homage, by a wand (virgula) held in 
 hand, and he has a dramatic passage describing 
 how the people of Bruges, in token of their 
 renunciation of their feudal bond to Hacket the 
 castellan, " picking up bits of stick exfestucated 
 their homage and fealty," i.e. cast the rods from 
 them, and so doing severed all connexion with 
 their former chief. 
 
 In England and in Scotland, this rod symbol 
 (fastis et baculus) also played a large part. 
 Bracton referred it specially to land without 
 houses. Tenure by the verge, a species of copy- 
 hold, had its name, we learn from Littleton, from 
 
 * The material facts in this paper up to this point are derived from 
 Thevenin'a Teztea relati/s mix Institution* privdes and Du Cange art. 
 investitura. 
 
 4
 
 50 LEGAL LORE. 
 
 wn petih verge, delivered by the old tenant to the 
 steward or bailiff of the manor, who re-delivered 
 it to the new holder. Jordan Fantosme tells us 
 that when Brien, messenger of Ranulf Glanvil, 
 in 1 L 74, announced in Westminster the capture 
 of the Scottish King at Alnwick, Henry II. 
 rewarded him for his good news by handing him 
 a stick (bastuncel), which vested him in ten 
 librates of land. In Scotland the feudal re- 
 signation by a vassal to his overlord for the 
 re-in vesture of a fresh owner was effected by 
 "staff and baton" (fastis et baculus), and 
 references to those symbols occurred in every day 
 conveyancing until far into the present century. 
 Indeed this picturesque ritual was, strictly 
 speaking, not abrogated, although made un- 
 necessary, by the Act 8 and 9 Victoria ch. 35. 
 
 The commonest conveyancing symbol for land 
 in England was the formal delivery of turf or twig 
 of the ground conveyed, made by a representative 
 of the grantor, to a representative of the 
 grantee. The most familiar in Scotland 
 was the handing over of "earth and stone." 
 This latter was the normal form of seisin, and its 
 history goes far back, not only in Scotland, but 
 on the continent as well. A curious Saxon
 
 ON SYMBOLS. 51 
 
 Wend attests this. Widukind narrates ili.it 
 some Saxons, having Landed from their ships in 
 Thuringia, one of them, wearing a golden torque 
 ami bracelets, met a Thuringian, who asked if he 
 would sell his ornaments. The sly Saxon entered 
 into an odd transaction ; the Thuringian gave 
 him in exchange for his gold, a lapful of soil. 
 The Thuringians rejoiced exceedingly over the 
 smart bargain their countryman had made, but 
 changed their tune when soon afterwards the 
 Saxons claimed the land as theirs, purchased 
 with their own gold, and by force of arms made 
 good the demand. 
 
 Our chronicles have a good many stories about 
 symbols. In the Norman Brcvis Relatio, a 
 sketch of the origin of William the Conqueror, 
 is told of his grandfather, Duke Richard the 
 Good, that once when staying at a monastery, 
 after prayer in the morning he laid a spindle on 
 the altar. Upon being asked what it meant, he 
 named the manor which he had by so homely a 
 symbol bestowed for the good of his soul. When 
 the infant William came into the world, it was 
 said, — and afterwards noted as prophetic — that 
 when they laid him down upon some straw, the 
 little hands each clutched a handful. Acquisitive
 
 52 LEGAL LORE. 
 
 tendencies were foreshadowed ! The Roman cle 
 Rou tells that in 1066, when William landed in 
 England, he stumbled and fell, an omen which for 
 the moment disconcerted his followers, but rising 
 with a shout, he swore by the splendour of God 
 that with his two hands he had taken possession 
 of the land. Prompt to catch the occasion, one 
 of his men ran forward to a cottage, tore a 
 handful of thatch from the roof, and passed it to 
 his chief, with the cry, " Receive this seisin," — 
 quasi-ceremonial words which with William's 
 pious, " God be with me," the curious may 
 compare with the formalities of English livery 
 in deed, as described (sec. 59), in Coke upon 
 Littleton. 
 
 The normal symbol of seisin for a house in 
 England, was (before the Act 7 and 8 Victoria 
 ch., 76, superseded these archaic ceremonies), 
 was the ring or hasp of the door, known in 
 Scotland for houses in burghs as ' ' hasp and 
 staple." In the latter country also, there were a 
 good many special types of symbol character- 
 istically appropriate to seisin in special kinds of 
 property. Thus for mills "clap and hopper," for 
 fishings "net and coble," for teinds (Anglice 
 tithes) a sheaf of corn, for the patronage or
 
 ON SYMBOLS. 53 
 
 advowson of a church ;i psalm-hook and keys, 
 attained the figurative purpose requisite. There 
 were many others less familiar amongst them, 
 one, a hat, worthy of a few words all to itself. 
 Our own generation may not regard this as a 
 particularly dignified symbol, but there is a cloud 
 of witnesses to shew its very various applicability. 
 The priest's cap or biretta was sometimes 
 employed to instal him in a chaplainry or 
 benefice. And apart from the place of the hat in 
 the regulations of the tilting ring, it was 
 occasionally used in Scotland as a symbol 
 in connection with what were known as 
 heirship goods. But it had in the twelfth 
 century been accorded the very loftiest use to 
 which secular symbolism could be turned. In 
 1 175, King William the Lion, taken prisoner the 
 year before, relinquished the independence of 
 Scotland, and did homage to the English King 
 at York, as a condition oi' his liberation. The 
 contemporary records are silent regarding 
 symbolic details, but in 1301 Edward I. stated in 
 his letter to the Pope that " in token of his 
 fealty, William the King of Scotland, had, on the 
 altar of St. Peter's, at York, offered his cap 
 (chwppelus), lance, and saddle, which until this
 
 5-4 LEGAL LORE. 
 
 day remain and are preserved in said church," 
 Any incredulity which a fair-minded Scot can 
 entertain, regarding this allegation that the 
 freedom of his country was once symbolically 
 surrendered in King William's cap, will be 
 materially lessened, and Scottish patriotism so 
 tar consoled, by the recollection that under very 
 similar circumstances the realm of England was 
 in 1193 given away with the bonnet (pilleus) of 
 the captive Richard I., who, thus (as Hoveden 
 tells us), gave investiture of his kingdom to his 
 arch-enemy, the Emperor Henry VI. This was, 
 however, only formal : the Emperor at once 
 re-invested King Richard in his realm with a 
 double crown of gold, though subject to an 
 annual tribute of £15,000 — a business transaction 
 painfully illustrative of the Christian chivalry of 
 the Crusades. 
 
 The annals of Scotland boast one instance of a 
 royal symbol much more regal than either of 
 these two. About the beginning of the year 
 1124, King Alexander I., restoring by charter to 
 the Bishopric of St. Andrews an extensive tract 
 of land, completed the grant according to Andrew 
 of Wyntoun (vii., 5), in a truly stately fashion. 
 He—
 
 o.\ SYMBOLS. 
 
 ( j-erl I ban bo 1 1m- awtare bryng 
 Hys cuiuly sted oil' Arahy 
 Sadelyd and brydelyd costlykly 
 Coveryd with ;i fayn; mantlete 
 < Ml' precyous and fyne welvel 
 W'ytli his armwris offTurky 
 That pryncys than oysid generaly 
 And chesyd mast for thare delyte 
 Wytli scheld and spere oil' sylvyr qwhyt. 
 
 It was a special occasion, for Bishop Robert's 
 appointment, which had led to the grant, was a 
 Scottish victory over the pretensions of the See 
 of York. There is an appeal to the imagination 
 so strong in the scene, that, in spite of the 
 interval of 300 years betwixt the event and this 
 oldest record of it, one is slow to offer any 
 criticism on the charger ; more especially as the 
 entire verity of the silver spear is corroborated by 
 Walter Bower's enshrining in his Scotichronicon 
 the fact that in the fifteenth century it was doing 
 duty as the shaft of the cross in the Cathedral. 
 Yet the unexampled symbol, coupled with the 
 analogy from York in 1 I7J, compels the sugges- 
 tion, that perhaps during these 300 years an 
 original capellus may have been mis-read as 
 cdballus, or mistaken for Scottish c<t/>n/, and 
 thus by the magic of mistranslation, a king's
 
 56 LEGAL LORE. 
 
 cap may have been transmuted into an Arab 
 steed. 
 
 Whilst of course a crown was the standard 
 symbol of investiture for a kingdom, inferior 
 rights of principality were often typified by other 
 things, such as a sword, a spear, or a banner. 
 And as feudal forms were observed in the 
 bestowal, so were they sometimes in the taking 
 away. England dispensed with several of her 
 monarchs, but apparently in no case was a 
 deposition attended by the feudal solemnities. 
 In Scotland when, in 1296, King John Balliol 
 was pulled out of the throne by the same hands 
 as had placed him in it, Edward I. spared his 
 vassal little of the indignity of the situation. 
 Balliol, deprived of his royal ornaments, with the 
 ermine stripped from his tabard, resigned his 
 realm by the symbol of a white wand. 
 
 Than this Jhon tuk a quhyt wand 
 And gave wp in till Edwardis hand 
 Off this Kynryk all the rycht. 
 
 No Scottish historian has noticed the absolute 
 legal propriety of this, and it is worth noticing. 
 By contemporary law (Britton, ii., 22), una 
 blaunche verge was the recognised symbol of 
 disseisin by consent. The thirteenth century
 
 ON SY.MI'.oLS. 57 
 
 was very particular, oven in small things, about 
 its law. Disseisin, provided for by statute of 
 1429, in disputed successions to real property, 
 and known to Scotland as the break hi"' of seisin, 
 was symbolically affected — frangendo discum — by 
 the curiously expressive act of breaking a dish or 
 dishes, with fire underneath.
 
 3La\v unfcer the jfcufcal System, 
 
 By Cuminc; Walters. 
 
 TO the historian proper feudalism presents 
 a wide subject with diverse points of 
 interest, but its legal aspect is comparatively a 
 small matter, and it can be considered without 
 detailed reference to the whole vast scheme 
 which existed from early German and Gothic 
 times, and overspread the greater part of Europe. 
 It is a common error to suppose that it was 
 introduced into England by the Normans. 
 William the Conqueror only superimposed a 
 French form of feudalism upon that which 
 already existed ; and all historians agree that the 
 measures he adopted, the restrictions he made, 
 and the original conditions he established, were 
 evidence of his farseeing genius, and a master- 
 piece of statecraft. His was a feudalism which, 
 while giving the lords great personal power and 
 influence, retained them still as the servants of 
 the king, and totally prevented them from using 
 their strength against the throne. In this
 
 LAW UNDER THE FEUDAL SYSTEM. 
 
 respect the feudal system in England never 
 resembled that of Germany and France, or even 
 that which the Norman barons established in 
 
 Scotland. The Conqueror had no intention of 
 allowing the owners of territory to supersede his 
 own authority, and to be beyond the sovereign's 
 control. While, therefore, he allowed them all 
 liberty in dealing with their dependents, he made 
 it impossible for them to defy bis own authority, 
 first by distributing- their possessions so that they 
 could not have a great army of followers at 
 command, and, secondly, by insisting upon a 
 formal declaration of allegiance from both the 
 barons and their vassals. The former, therefore, 
 were not beyond the law, and the latter had 
 nominally, if not actually, some right of appeal 
 to the monarch. These points it is necessary to 
 bear in mind for a full understanding of legal 
 procedure during the long period feudalism 
 prevailed. 
 
 The feudal lord's claims upon his vassals were 
 numerous. First came his claim to their military 
 service. He could demand from them service as 
 assessors in his courts of various fines and pay- 
 ments and confiscations of land. He could 
 dispose of females in marriage; not infrequently
 
 GO LEGAL LORE. 
 
 lie consigned them to a debased existence. 
 When the tenant was invested with possession 
 of his feud or fief, he paid homage to his lord, 
 that is, he proclaimed himself the " man " to help 
 and to serve his master. Kneeling humbly 
 before the baron, he took oath of fealty, and 
 practically enslaved himself. It was here that 
 King William showed his wisdom by ordaining 
 that the oath of allegiance should be not only 
 to the feudal superior, but to the monarch as the 
 head of all, and thus he secured the ultimate 
 service of all vassals to the crown, and deprived 
 the barons of autocratic power. 
 
 The Saxon feudalism had been of the most 
 tyrannical character, the owners of slaves making 
 their own laws, and carrying them out with the 
 utmost barbarism. Records exist which prove 
 that for slight offences mistresses were accus- 
 tomed to order their servants to be scourged to 
 death, or subjected to fearful tortures. For 
 breaking a dish, or spilling wine from a cup, for 
 example, a servant might have his ears cut off, 
 his nose slit, or suffer the loss of his hand, 
 according to the caprice or fancy of his lord or 
 lady. While murderers and robbers could find 
 sanctuary in the Church, servants had no such
 
 LAW UNDEIl THK FKUDAL SYSTK.M Gl 
 
 refuge. They were torn away from the altar to 
 which they clung in their terror, and none could 
 or would intervene to protect them. According 
 to the decree of King Ethelred, public punish- 
 ments were to be mild, and death sentence* were 
 seldom to be passed; but the sovereign's wishes 
 had no effect upon the treatment of bondmen. 
 High-born women were as cruel as their husbands, 
 and King Ethelred's own mother is said to have 
 beaten him so severely when he was a child that 
 he regarded whipping instruments with horror 
 to the end of his life. Flagellation was not 
 recognised as a legal punishment by the Saxons, 
 though a husband might beat his wife and incur 
 no penalty, while the whipping of slaves was 
 accounted no more than the whipping of animals, 
 and perhaps less. For all other classes money- 
 fines were almost the only authorished penalty, a 
 fixed price being set upon persons of different 
 degrees. But the slave had no real value, and 
 hence could be mutilated or killed at the pleasure 
 of his lord. 
 
 The ideal of feudalism, never realised in 
 England, was that the king and his tenants-in- 
 chief should hold law-courts, which the tenant or 
 the sub-tenants should be bound to attend to
 
 62 LEGAL LOKE. 
 
 have their cases tried according 1 to statute rules. 
 But the system was only imperfectly carried out, 
 and the fact that the tenant-in-chief, or feudal 
 lord, had the right to levy taxes (called 
 " tallage " or " tailles ") on his vassels, speedily 
 led to all sorts of tyranny and abuse. Still, the 
 feudal courts could not engross the legislation for 
 the excellent reason that the quick-witted Con- 
 queror had preserved the Witanagenot and the 
 courts of the shire and the hundred to check the 
 barons. The latter made a big effort to introduce 
 the Continental system of feudalism, by which 
 each of them would have been supreme in his 
 domain ; but the plans were defeated as we have 
 seen. William's successors were men of a 
 different stamp, and the system proved unwork- 
 able in the hands of weaker men. " The prince," 
 says Hume, " finding that greater opposition was 
 often made to him when he enforced the laws 
 than when he violated them, was apt to render 
 his own will and pleasure the sole rule of govern- 
 ment, and on every emergency to consider the 
 power of the persons whom he might offend 
 rather than the rights of those whom he might 
 injure." The mischievous course pleased none, 
 and the royal prerogative was at last system-
 
 LAW UNDKI: Till: FEUDAL SYSTEM. 63 
 
 atically assailed by the barons in the time of 
 John, and the Magna Charta wrestled from 
 him. The concessions then made were of benefit 
 to the barons rather than to the landless and 
 dependent classes, and it remained for the third 
 Edward to diminish their power and increase the 
 liberties of the populace. 
 
 Law in England during all this period was 
 chiefly a system of oppression, proceeding stage 
 by stage from the highest to the lowest. The 
 revenues of the crown were obtained by extrava- 
 gant rents, forfeits, taxes, reliefs, fines, aids, and 
 other devices which show the amazing ingenuity 
 of the extortioners. The result was that most 
 tyrannical exactions were made in turn by the 
 feudal lords, and the dependents groaned for six 
 centuries under these lawless yet legalised oppres- 
 sions. Personal property was at the mercy of 
 the lords, who adopted the most cruel means to 
 enforce their " rights." They, in turn, could be 
 the victim of extortions, as was proved in the 
 case of Roger of Dudley, who was summoned to 
 receive the honour of knighthood in L233. He 
 found the honour so expensive that he declined to 
 appear, whereupon a writ was issued — " Because 
 Roger de Someri, at the feast of Pentecost last
 
 G4 LEGAL LORE. 
 
 past, has not appeared before the King to be 
 girded with the military girdle, the Sheriff of 
 Worcestershire is hereby commanded to seize on 
 the house of Dudley and all other lands of the 
 said Roger within his jurisdiction, for the King's 
 use ; and to keep them with all the cattle found 
 upon them, so that nothing may be moved off 
 without the King's permission." The same 
 Roger had a twelve years' dispute with William 
 de Birmingham touching the service due for the 
 manor of Birmingham, for which the latter was 
 required to perform the service of eight knights' 
 fees, a half and a fourth part, and also to do suit 
 to the court at Dudley once every three weeks. 
 In such wise did these cheftains rule. Another 
 curious piece of law relating to the Dudley lands 
 is told by Leland : — " The lorde Powis, graunt- 
 father that is now, being in a controversy for 
 asawte made upon hym goying to London by the 
 lord Dudeley, Dudeley castelle condesended 
 by entreaty, that his son and heir should mary 
 the olde lorde of Dudleis' daughter." A very 
 amiable method of atoning for personal violence. 
 The feudal lord had absolute power over his 
 own family, as well as over his dependents, the 
 law r s of household government being entirely of
 
 LAW UNDER THE FEUDAL SYSTK.M. 65 
 
 his own devising and prompted by his passion, his 
 isrnorance, and his wickedness. Robert de 
 Belesme, Earl of Shropshire and of Arundel and 
 Shrewsbury, one of the most powerful and defiant 
 barons of Norman times, tore out the eyes of his 
 own children when they had, in sport, hidden 
 their faces beneath his cloak. He cast his wife 
 in a dungeon, heavily fettered ; but every night 
 he sent his servants to drag her to his bed, and in 
 the morning sent her back to her prison. This 
 torture he inflicted upon her to gain money from 
 her family. He disdained to allow his captives in 
 war to be ransomed, but impaled them, men and 
 women, upon stakes. His friends were terrified 
 to approach him, for by way of pleasantry he 
 would engage them in merry chat and suddenly 
 plunge his sword into their sides with a loud 
 laugh. No law could touch this man, and no 
 avenger arose to overcome him. The Warden of 
 the Welsh and English Marches made also his own 
 laws, which were conceived in a spirit of the 
 utmost cruelty. Border foragers, for example, 
 were cast into a dungeon, and subjected to the 
 punishment of having their right hands chopped 
 off with the axe. This prescribed penalty was 
 often aggravated by additional torture or death.
 
 66 LEGAL LORE. 
 
 Feudalism was deep-rooted, so deep-rooted that 
 not the enactments of all the Normans and 
 Planta^enets could do more than check its 
 growth and gradually ameliorate its severities. 
 But while some of the old customs were 
 abolished, the bulk of the laws remained based 
 upon the Anglo-Saxon customs, so that as one 
 writer has tersely explained, "the Land Laws 
 and Game Laws are derived from the Normans, 
 the Common Law from the Anglo-Saxons, and 
 almost all our Statute Laws breathe the spirit of 
 pre-Norman England." To this Macaulay refers 
 with ill-disguised scorn in his History: — "Our 
 laws and customs have never been lost in general 
 irreparable ruin. With us the proceedings of the 
 Middle Ages are still valid precedents, and are 
 still cited on the gravest occasions by the most 
 eminent statesmen. . . . Thus in our country 
 the dearest interests of parties have been staked 
 on the results of the researches of antiquaries." 
 The historian, however, does admit that there is 
 compensation for the anomalies which result from 
 this polity. ' ' Other societies possess written 
 constitutions more symmetrical. But no other 
 society has yet succeeded in uniting revolution 
 with prescription, progress with stability, the
 
 LAW UNDER THE FEUDAL SYSTEM. G7 
 
 energy of youth with tin- majesty of immemorial 
 antiquity." That the spirit of olden feudalism 
 
 should sometimes be found surviving in modern 
 laws is inevitable. Villenage is extinguished, and 
 yet in the very character of certain classes, as 
 well as in the operation of certain laws affecting 
 lands and personal privileges, we see a direct 
 connection between the submission of the bond- 
 man in the past to his hereditary master and the 
 readiness of the poor in the present to yield to 
 one in higher station. What struck the philoso- 
 phic Emerson most, on his visit to England, was 
 that Englishmen should maintain their old 
 customs, repeat the ceremonies of the eleventh 
 century, and consider in so many things that 
 ''antiquity of usage is sanction enough/' "The 
 Middle Ages," he said, "still lurk in the streets 
 of London." 
 
 The stocks and the whipping-post, which stood 
 in front of every castle, were the commonest 
 instruments in use for the punishment of the 
 ceorl and villein who displeased their masters. 
 For the ceorl, who could not quit the land on 
 which he was born, or free himself from slavery, 
 life was particularly hard. He could not absolve 
 himself by money payments, like the rest of his
 
 68 LEGAL LORE. 
 
 fellow-men, if once he gave offence ; while the 
 majority could rob and murder and escape with a 
 fine, the ceorl's slightest defect, real or imagined, 
 was punished with merciless rigour. Tithings 
 and the process of compurgation came to the 
 assistance of other criminals, but the ceorl could 
 appeal to none, and expect neither pity nor aid. 
 Such facts give point to Emerson's dictum that 
 " Castles are proud things, but 'tis safest to be 
 outside them." The villein was in a much 
 happier state than the ceorl. He was free 
 against everybody except his lord, and the 
 criminal code accorded him the same privileges 
 as a free man. The lord was even liable to 
 punishment for killing or mutilating his villein, 
 and the Mirror of Justice in the thirteenth 
 century laid down the fact that " the villein is no 
 serf in any sense of the word ; he is a free man ; 
 his land is a free tenure." But all this is largely 
 comparative, and our estimate of the advantages 
 enjoyed by the villein must depend upon whether 
 we view it by the standards of the time, or by 
 modern standards. At all events, while the 
 ceorl tasted all the bitterness of his serfdom, the 
 adjudged felon in other stations was able to 
 obtain much leniency. The common form of
 
 LAW UNDER THE FEUDAL SYSTEM. 69 
 
 oath or abjuration in King Edward's time was 
 this: "This heare, thou Sir Coroner, that I am 
 a robber and a murderer, and a fellow of* our 
 
 Lord the King of England ; and because I have 
 done many such evils in his lande I do abjure the 
 lande of our Lord Edward, and I shall haste me 
 
 towards the port of , which thou hast 
 
 given me, and that I shall not goe out of the 
 highway, and if I doe, I will that T be taken as 
 a robber and a felon. And that at such a place 
 I will diligentlie seeke for passage, and I will 
 tarrie there but one ebbe and flood, if I can have 
 passage ; and unlesse I can have it in such a 
 place I will goe every day into the sea up to my 
 knees, assaying to pass over ; and unlesse I can 
 do this within fortie days I will put myselfe 
 again into the Church as a robber and a felon, so 
 God me helpe and his holy judgment." But 
 King Richard showed no disposition to put so 
 much trust in the honour of these gentry, and 
 when setting out for Palestine, he made a law 
 against peculating sailors, which was calculated to 
 dismay them: "Whosoever is convicted of theft 
 shall have his head shaved, melted pitch poured 
 upon it, and the feathers from a pillow shaken 
 over it, that he may be known ; and shall be put
 
 70 LEGAL LORE. 
 
 on shore on the first land which the ship touches." 
 This punishment reminds us of a modern 
 American institution. 
 
 The law of "Englishry" deserves a passing 
 note. It dates back to the time of Canute, and 
 was continued by the Normans. When Canute 
 sent away the greater portion of his Danish 
 troops, " the Witan pledged themselves that the 
 rest should be safe in life and limb, and that any 
 Englishman who killed any of them should suffer 
 punishment. If the murderer could not be dis- 
 covered, the township or hundred was fined." 
 The proud and tyrannical Normans used this law 
 to their own advantage. A mere Englishman 
 being a vassal, and of no importance, could be 
 killed with impunity, but it was ordained that 
 when a man was found killed, and evidence was 
 not brought to prove that he was English, he 
 should be held to be a Frenchman, so that a 
 penalty could be imposed upon the township. 
 This law of " Englishry " is often illustrated in 
 old chronicles. Men were found murdered by 
 the roadside, on heaths, and in woods ; the 
 chronicles state that "no Englishry was proved," 
 and the towns were accordingly amerced. The 
 ' ' Frankpledge " was not so feudal in character,
 
 LAW UNDER THE FEUDAL SYSTEM. 71 
 
 though it was based upon the principle that 
 "every landless man shall have a lord who shall 
 answer tor his appearance in the courts of law." 
 The custom prevailed before the Conquest, ten 
 men forming a "tithing," the members of which 
 were answerable each for others. The preseni 
 Court Leet is a survival of the system, though 
 in a very modified form. 
 
 The feudalism which the Norman barons im- 
 posed upon Scotland, and which was unchecked 
 by King William, so that it reproduced all the 
 evils of the ferocious Continental system, was 
 marked by terrible excesses. No institution was 
 more shameful and abhorrent, or so vividly 
 reveals the baseness to which unrestricted feudal- 
 ism sank, than the horrible depravity of maiden- 
 rights, or droits de *<'></)ieur. Beaumont and 
 Fletcher founded upon the historic incidents 
 their drama of "The Custom of the Country," 
 and though a few mild attempts have been made 
 to throw doubt upon the facts, there is no 
 question that these domestic tyrannies spread 
 rapidly from Scotland to France and Germany, 
 and took numerous odious forms. Isaac Disraeli, 
 in his " Curiosities," devotes a chapter to the 
 subject, which can scarcely be dealt with in
 
 72 LEGAL LORE. 
 
 detail in a work appealing to the general reader. 
 The shameful institution was abolished by 
 Malcolm III., who, however, put the matter 
 upon a business basis by ordering that it 
 should be redeemed by a quit-rent. But the 
 lord still considered himself privileged to manifest 
 his authority over his vassals by thrusting his 
 booted leg into the bed of a newly-married 
 couple, or by sousing the bridegroom in a river. 
 The wardships enjoyed by the feudal lords were 
 equally absurd, one of their favourite methods of 
 raising money being to arrange an unsuitable 
 marriage, and on the refusal of the persons to 
 carry out the contract, to claim the revenue of 
 the wards' estate as "forfeit." The feudal lord 
 could sell his vassals as he did his animals, and 
 they were often bartered away with fields and 
 houses. The value of a serf was roughly apprised 
 as four times that of an ox, and he could also be 
 used as " live money.' 1 
 
 Mr. Ruskin, in his third letter in " Fors 
 Clavigera," gives an account of the laws pro- 
 mulgated by King Richard, Cceur de Lion, 
 whom he declared to be the truest representative 
 of the British " Squire," under all the significances 
 of that name. The ideal lord was an admixture
 
 LAW CTNDEB THE FEUDAL SYSTEM. 73 
 
 of the patriarch and the tyrant, and if we 
 examine Richard's legislation, and endeavour to 
 recognise the objects he had in view, we see thai 
 with a considerable amount of selfishness he also 
 possessed a real wish to add to the welfare of his 
 people. He simplified and adjusted the weights 
 and measures of the country to put an end to 
 cheating, and he took severe measures "to prevent 
 the extortions of the Jews." If the people 
 would be honest, he was quite willing to do the 
 fighting for them ; if they made good cloth, he 
 was ready to see that they got good pay ; and 
 when they bought and sold, he was determined 
 that each should give the other good measure. 
 But with much power comes caprice, and the 
 feudal lords too soon forgot the interests of their 
 dependents in serving their own ends. The 
 English barons never made the formal claim of 
 the German barons to rob on the highways in 
 their own territories, though, without asserting 
 the right, they frequently performed the act. A 
 case in point is that of William de Birmingham, 
 who so late as the sixteenth century went out 
 with a hundred men to molest and rob travellers 
 on foot. The ordinary laws were unequal to 
 calling them to account for these misdeeds :
 
 74 LEGAL LORE. 
 
 nothing but conquest by battle could have 
 checked them. Besides, there were Lord 
 Palatines whose rule in their own domains was 
 equal to that of the sovereigns, and they could 
 make or abrogate laws at will. These kings in 
 petto appointed their own judges and courts, 
 could reverse sentences, pardon at will for any 
 crime, and indict at pleasure. Offences com- 
 mitted in the County Palatine were said to be 
 " against the peace " of the lord, and not against 
 the peace of the king, and it was with a rod of 
 iron that these despots governed the territory 
 allotted to them. Still there was a show of 
 legality in this. It differed from the wanton 
 caprice of Geoffrey of Coventry, who oppressed 
 the inhabitants, was amenable to no law for so 
 doing, but consented to remit the burdensome 
 taxes if his wife would ride naked through the 
 streets. As a specimen of the barbarous humour 
 of these lords, the Godiva story is instructive. 
 
 At the end of King Stephen's troublous reign, 
 there were eleven hundred and fifteen castles in 
 England, each of them a centre of power, at that 
 particular time almost absolute. The wise pro- 
 visions of the Conqueror had to some extent 
 been overcome, and the feudal lords had become
 
 LAW UNDER THE FEUDAL SYSTEM. 75 
 
 so unmanageable that Henry II. found himself 
 compelled to stipulate for the destruction of a 
 number of the strongholds. At the same time 
 he prevented the erection of others except by 
 royal licence, and so began to limit the oppression 
 which had prevailed. We find, too, that in con- 
 sequence of the frequent over-riding of the 
 common law by men in authority, the monarch 
 reserved to himself more and more of sovereign 
 power, " by which," says Sir Robert Filmer in 
 his famous ' ' Patriarcha " — answered by John 
 Locke in the still more famous treatises on Civil 
 Government — " he did supply the want or correct 
 the rigour of the common law, because the 
 positive law, being grounded upon that which 
 happens for the most part, cannot forsee every 
 particular which time and experience bring forth. 
 Already sundry things do fall out," he continues 
 later, "both in war and peace, that require extra- 
 ordinary help ... so that rare matters do 
 grow up meet to be referred to the absolute 
 authority of the prince." We find such a case in 
 the time of Richard II., when, on a question of 
 freehold, the appeal went direct to the king because 
 "of maintenance, oppression, or other outrages 
 the common law cannot have duly her course."
 
 76 LEGAL LORE. 
 
 How the lords could avoid and defy the 
 common law is proved by two curious instances 
 in the history of the Dudleys, the family pre- 
 viously referred to. Lord Edward Dudley, in 
 1592, had a dispute with the neighbouring 
 Lyttelton family, and raising some 150 persons, 
 he went one night and stole all the cattle on the 
 latter's estate. Lyttelton obtained judgment 
 against Dudley, who was ordered to return the 
 cattle, but he posted his servants at the gates, 
 and bade them cut the bailiffs to pieces. Lyttel- 
 ton then armed sixty men and took the cattle 
 back by force ; Dudley armed 700 men to fetch 
 them back and kill them. For this offence the 
 nobleman and eighty followers were indicted, but 
 by one means and another the proceedings were 
 made to last four years, and then an agreement 
 was entered into by the parties. Lord Edward's 
 son, Ferdinando, was the hero of the next exploit. 
 He purchased the property of an oppressed 
 widow, named Martha Grovenor, for £1200, but 
 only paid £100. She sued him in the Exchequer 
 for the remainder, and obtained judgment for the 
 balance. No notice was taken of this. The 
 following year the widow obtained a second 
 decree, and this again was ignored. His lordship
 
 LAW UNDKI! TIIK KKTDAL SYSTK.M. 77 
 
 was next called upon for costs, and this led him 
 
 to make an effort to compromise the matter. He 
 entered into an agreement to pay all arrears and 
 costs, but, having done so much, refused to fulfil 
 his obligations. An execution of ejectment was 
 then levied against his lordship. This he 
 avoided for nine years, and it was only twelve 
 years after negotiations had begun that the 
 widow was able to obtain her dues. 
 
 A very brief glance at Continental feudalism 
 and its influence upon statute law may now be 
 given. It enables us to mark some of the 
 differences between the English and the foreign 
 systems, the one with its restrictions and the 
 other all-powerful. In the eleventh century, all 
 Fiance and the German Empire were one vast 
 feudal possession. The powers of the lords have 
 been classed by the historian Hallam as follows — 
 First, the right of coining money ; second, that 
 of waging private war ; third, exemption from all 
 public tributes except the feudal aids ; fourth, 
 freedom from legislative control ; and fifth, the 
 exclusive exercise of original judicature in their 
 dominions. It is easy to perceive how, with 
 these initial powers conceded, the seigneurs were 
 enabled to make themselves the veritable masters
 
 78 LEGAL LORE. 
 
 of the kingdom. In Germany the lawlessness of 
 the barons became as proverbial as did their 
 cruelty towards their slaves. The whole country 
 was divided up into territories over which the 
 feudal chiefs reigned as absolute and despotic 
 kings. Nor is the spirit of feudalism in that 
 country yet extinct, for, unlike France, it has not 
 had its bloody revolt against " aristocrats." No 
 one can have travelled in Germany and seen the 
 castle towering high on crag or rock, and the 
 diminutive houses scattered about its base, with- 
 out realising at a glance how the chieftains and 
 their serfs lived in the old days. In Germany 
 the feudal system was seen at its strongest and 
 its worst, and law was paralysed while the men 
 of lust and blood were supreme in their own 
 dominions. Austria has a similar story to tell of 
 barbarity towards serfs, and the abrogation of 
 law by powerful chieftains. But it is remarkable 
 that in Russia, where the feudal spirit still most 
 strongly survives, and is marked by many 
 excesses utterly repugnant to the feeling and 
 customs of the times, the earliest attempts to 
 establish a feudal system were quelled by the 
 princes. In this land, where a mistress might, 
 until recently, have her maid whipped to death
 
 LAW UNDER THE FEUDAL SYSTEM. 79 
 
 for dropping a teacup, or for any other trivial 
 offence, real or imagined, where again it was 
 taken for granted thai 
 
 "A Count carbonadoes 
 His ignorant serfs with the knout," 
 
 feudalism, once instituted, deepened its hold with 
 the progress of years. While there.' was no law 
 for the lower classes, save that dictated by the 
 caprice of their masters, there were special 
 exemptions and priveleges for the noble and 
 wealthy. The Russian lords pay no taxes, and 
 they retain, in almost undiminished force, that 
 power to abuse, insult, and destroy the peasantry 
 which was possessed by the ancienne nohlesse of 
 France before the Revolution. Mr. Morley 
 Roberts, in one of his Russian historical sketches, 
 relates that not lono - a^o a noble threw a Hebrew 
 into a dungeon for an offence, and a week later asked 
 his jager what had become of him. "Oh," said 
 the fellow with a laugh, " he made so much noise 
 that I shot him." 
 
 The state of Bohemia from the ninth to the 
 fourteenth century shows to what deplorable 
 depths a race may sink under an unrestrained and 
 licentious feudalism. The Bohemian nobles 
 practically abolished the marriage laws, and in
 
 80 LEGAL LORE. 
 
 addition to oppressing their dependents, fre- 
 quently sold them into slavery. When St. 
 Adalbert endeavoured to effect a reformation, he 
 found every impediment put in his way, and his 
 wishes openty defied. He had a horror of blood- 
 shed, and preached the hatefulness of murder. 
 By way of response, a man, whose wife had been 
 put in a nunnery to save her from his brutality, 
 was draowd out and butchered in the streets. 
 Adalbert had to wait long before he could 
 influence these men who, secure in their castles, 
 could indulge their rapacity without fear of 
 punishment. Reforms, effected in the tenth 
 century, however, were not permanent, and in 
 the twelfth century the nobles had succeeded in 
 converting the local assembly, with its power of 
 appointing judges, to their own uses. Mr. 
 Edmund Maurice, in his history of Bohemia, 
 relates that the nobles began to secure the 
 judgeships for themselves, and then sold or 
 bequeathed the offices to heirs. They thus made 
 the appointments a means of tyranny and a 
 source of profit, and with the money acquired 
 purchased the lands of freemen. Others, owing 
 to the unpopularity of the local tribunals, 
 strengthened the power of their own feudal
 
 LAW UNDER THE FEUDAL SYSTEM. Bl 
 
 courts, and again reduced their dependents to 
 abject slavery. 
 
 "The coolness," says Mr. Maurice, "with 
 which many of the giants of land transferred 
 workmen of various kinds as mere appendages 
 of fields and fishponds, is in itself a proof of 
 the degraded position to which the peasant 
 class had been reduced ; and the fact that 
 military service seemed one of the few means of 
 escaping from serfdom, led the peasants to favour 
 those wars which in the end increased their 
 misery." Eventually King Wenceslas, famed in 
 ballad, and still more famed in Bohemian history, 
 came to the rescue, and ordained " that no baron 
 or noble of the land shall have power in 
 the city of Briinn, or shall do any violence 
 in it, or shall detain anyone, without the 
 license and proclamation of the judge of the 
 city." 
 
 The wide survey we have taken enables a fair 
 
 estimate to be made of the state of the law in 
 
 Europe when the castle was the court of justice, 
 
 and the baron was the judge. England alone 
 
 of all Europeon countries seems to have been 
 
 able to place a check upon the more flagrant 
 
 abuses, and in later times of reform to have 
 
 G
 
 82 LEGAL LORE 
 
 succeeded, while abolishing what was essentially 
 evil in the system, in retaining whatever of 
 it was of worth. Whether there be still laws 
 too deeply impressed with feudal ideas for 
 modern acceptance is a question for legislators 
 to consider.
 
 Gbc fIDanor an& flbanor law. 
 
 By England Howlett. 
 
 EVERYTHING relating to the manor 
 reminds us forcibly of the baron of olden 
 days, with his little territory, in which he was 
 practically a king. Estates in copyhold are 
 essentially distinct both in their origin and in 
 their nature from those of freehold estates. 
 Copyhold lands are holden by copy of court roll, 
 that is to say, the muniments of the title to such 
 lands are copies of the roll or book in which an 
 account is kept of the proceedings in the court of 
 the manor to which the lands belong. For it 
 must be remembered that all copyhold lands 
 belong to and are parcel of some manor. An 
 estate in copyhold is not a freehold ; but, accord- 
 ing to construction of law, merely an estate 
 at the will of the lord of the manor, at whose will 
 copyhold estates are expressed to be holden. 
 Copyholds are also said to be holden according (>> 
 the custom of the manor to which they belong,
 
 84 LEGAL LORE. 
 
 for custom is of course the life and being of copy- 
 holds. 
 
 We must remember that in former days, a 
 baron, or great lord, becoming possessed of a 
 large tract of land, granted part of it to freemen 
 for estates in fee simple. Part of the land he 
 reserved to himself, and this formed the demesnes 
 of the manor, properly so called : other parts of 
 the land he granted out to his villeins, or slaves, 
 permitting them, as an act of pure grace and 
 favour, to enjoy such lands at his pleasure ; but 
 sometimes enjoining, in return for such favour, 
 the performance of certain agricultural services, 
 such, for instance, as ploughing the demesne, 
 carting the manure, and other such servile work. 
 The lands remaining after this parcelling out, 
 generally the poorest, formed the waste lands of 
 the manor, over which rights of commons were 
 enjoyed by the tenants. In this way arose a 
 manor, of which it will be seen the tenants formed 
 two classes, the freeholders and the villeins. 
 Now for each of these classes a separate court 
 was held — for the freeholders a Court Baron ; 
 for the villeins another called a Customary Court. 
 In the former court the suitors were the judges ; 
 in the latter the lord only, or his steward.
 
 THE .MANui; AND .MA. No I: LAW. 
 
 In some manors the villeins were allowed to 
 have life interests, but these grants were qo1 
 
 extended so as to admit any of their children. 
 Hence arose copyholds for life. Again, in other 
 manors a much greater degree of liberality was 
 shown by the lords ; and on the death of a 
 tenant, the lord permitted his eldest son, or 
 indeed sometimes all his sons, or sometimes the 
 youngest only, and afterwards other relations 
 to succeed him by way of heirship ; for which 
 privilege, however, the payment of a fine was 
 usually required on the admittance of the heir to 
 the tenancy. Frequently it happened that the 
 course of descent of estates of freehold was chosen 
 as the model for such inheritances ; but in many 
 cases dispositions of the most capricious kind 
 were adopted by the lord of the manor, and in 
 course of time actually became the custom of 
 the manor. And thus it was that copyholds of 
 inheritance arose. Again, if a villein tenant 
 wished to part with his own parcel of land to 
 some other of his fellows, the lord would allow 
 him to surrender or yield up again the land, and 
 then, on the payment of a fine, would indulgently 
 admit as his tenant, on the same terms, the 
 other, to whose use and in whose favour the
 
 SQ LEGAL LORE. 
 
 surrender had been made. Thus arose the 
 method now prevalent at the present day, of 
 conveying copyholds by surrender into the hands of 
 the lord of the manor to the use of the purchaser, 
 and the subsequent admittance of the latter. By 
 long custom and continued indulgence that which 
 at first was a pure favour gradually grew up into 
 a right, and thus it came to pass that the will of 
 the lord, which had of course originated the 
 custom, came at last to be controlled by it. # 
 
 The rise of the copyholder from a state of 
 uncertainty to certainty of tenure appears to 
 have been very gradual. Britton, who wrote in 
 the reign of Edward I., thus describes this tenure 
 under the name of Villeinage. " Villeinage is to 
 hold part of the demesnes of any lord entrusted 
 to hold at his will by villein services to improve 
 for the advantage of the lord." And he further 
 adds that " In manors of ancient demesne there 
 were pure villeins of blood and of tenure, who 
 might be ousted of their tenements at the will 
 of their lord." 
 
 In the reign of Edward III. a case occured in 
 which the entry of a lord on his copyholder was 
 adjudged lawful, because he did not do his services, 
 
 * Williams' " Real Property Law."
 
 THE MANOR AND MANOR LAW 87 
 
 by which he broke the custom of the manor, 
 which seems to show that even at thai tunc tin- 
 lord could not have ejected his truant without a 
 cause. And later, in the reign of Edward IV., 
 the judges gave to copyholders a certainty of 
 tenure by allowing them an action of trespass od 
 ejectment by their Lords without just cause. 
 "Now," says Sir Edward Coke, "copyholders 
 stand upon a sure ground ; now they weigh not 
 their lord's displeasure ; they shake not at every 
 sudden blast of wind ; they eat, drink, and sleep 
 securely ; only having a special care of the main 
 chance, namely, to perform carefully what duties 
 and services soever their tenure doth exact and 
 custom doth require ; then let lord frown, the 
 copyholder cares not, knowing himself safe." 
 
 In the present day a copyholder has as good a 
 title as a freeholder ; in some respects a better ; 
 for all the transactions relating to the conveyance 
 of copyholds are entered on the court rolls of the 
 manor, and thus a record is preserved of the title 
 of all the tenants. 
 
 Since the passing of the statute of Quia 
 Emptorcx, IS Edward T.. it has not been lawful 
 to create a tenure of an estate in fee simple ; so 
 that every manor bears date at least as far back
 
 88 LEGAL LORE. 
 
 as that reign ; to this rule the few seignories, 
 which may have been subsequently created by 
 the king's tenants in capite, form the only 
 exception. 
 
 The name " manor " is of Norman origin, but 
 the estate to which it was given existed, in its 
 essential character, long before the Conquest ; it 
 received a new name as the shire also did, but 
 neither the one nor the other was created by this 
 change. The local jurisdiction of the thegns 
 who had grants of sac and soc, or who exercised 
 judicial functions amongst their free neighbours, 
 were identical with the manorial jurisdictions 
 of the new owners. 
 
 Although long continued custom has now 
 rendered copyholders quite independent of the 
 will of the lords, yet all copyholds, properly so 
 called, are still expressly stated, in the court rolls 
 of manors, to be holden at the will of the lord ; 
 and, more than this, estates in copyholds are 
 still liable to some of the incidents of mere 
 estates at will. 
 
 In ancient times the law laid great stress on 
 the feudal possession or seisin of lands, and this 
 possession could only be had by the holder of an 
 estate of freehold, that is, an estate sufficiently
 
 THE MANOB AND MANOR LAW. 89 
 
 important to belong to a free man. Now, as we 
 have seen, copyholders in ancieni times belonged 
 
 to the class of villeins or bondsmen, and held, at 
 the will of the lord, lands of which the lord 
 himself was alone feudally possessed. The lands 
 held by the copyholders still remained part and 
 parcel of the lord's manor ; and the freehold of 
 these lands still continued vested in the lord ; and 
 this is the case at the present day with regard to 
 all copyholds. The lord of the manor is actually 
 seised of all the lands in the possession of his 
 copyhold tenants. 
 
 The lord, having the legal fee simple in the 
 copyhold lands comprised in his manor, possesses 
 all the rights incident to such an estate, controlled 
 only by the custom of the manor, which is now 
 the tenant's safeguard. Thus he possesses a right 
 to all the mines and minerals under the land, and 
 also to all timber growing on the surface, and this 
 even though the timber may have been planted 
 by the tenant. However, it must be borne in 
 mind that these rights are somewhat interfered 
 with by the rights which long continued custom 
 has given to the tenants, for the lord cannot come 
 upon the lands to open his mines, or to cut his 
 timber, without the copyholder's leave.
 
 90 LEGAL LOKE. 
 
 A copyholder cannot commit any waste, either 
 voluntary, by opening mines, cutting down timber 
 or pulling down buildings ; or permissive, by 
 neglecting to repair. For the land, with all that 
 is under it or upon it, belongs to the lord of the 
 manor ; the tenant has nothing but a customary 
 right to enjoy the occupation ; and if he should 
 in any way exceed this right, a cause of forfeiture 
 to his lord would at once accrue. # 
 
 By the customs of manors, on every change of 
 tenancy, whether by death, sale, or otherwise, 
 fines of more or less amount become payable to 
 the lord. By the customs of some manors the 
 fine payable was anciently arbitrary ; but now in 
 modern times, fines, even when arbitrary by 
 custom, are restrained to two years' improved 
 value of the land after deducting quit rents. 
 
 In some manors a fine is due on the change of 
 the lord ; but in this case the change must always 
 be by act of God, and not by any act of the 
 party. 
 
 The tenure of an estate in copyholds involves 
 an oath of fealty from the tenant, and together 
 also with suit to the customary court of the 
 manor. Another incident of the tenure, and this 
 
 * Williams' "Real Property Law."
 
 THE MAN'Ol! AND MANOR LAW. 9] 
 
 Bometimes a very profitable one, is the escheal to 
 t he lord on failure of heirs. 
 
 Before the abolition of forfeiture for treason 
 
 and felony, the lord of a copyholder had a greal 
 advantage over the lord of a freeholder in this 
 respeet, that, whilst freehold lands in fee simple 
 were forfeited to the crown by the treason of the 
 tenant, the copyholds of a traitor escheated to 
 the lord of the manor of which they were held. 
 
 One of the most curious incidents of the tenure 
 is the right of the lord, on the death of a tenant, 
 to seize the tenant's best beast, horse, or other 
 chattel under the name of a heriot. Now 7 it 
 would appear that heriots were introduced into 
 England by the Danes. The heriot of a military 
 tenant was his arms and habiliments of war, 
 which belonged to the lord for the purpose of 
 equipping his successor. And it would seem 
 that in analogy to this purely feudal custom, the 
 lords of manors usually expected that the best 
 beast or other chattel of each tenant, whether he 
 were a freeman or a villein, should on his death 
 be left to them. In old wills of copyholders we 
 constantly find this legacy to the lord of the 
 manor the first bequest mentioned : in fact the 
 tenant really making a bounty of what was
 
 92 LEGAL LORE. 
 
 actually an obligation. In cases where the tenant 
 died intestate the heriot of the lord was taken in 
 the first place out of his effects, unless indeed the 
 lord seized the whole of the goods, which not 
 unfrequently happened in days before custom had 
 so completely controlled the rights of the lord, 
 and at the same time protected the interests of 
 the tenant. Heriots survive to this day in many 
 manors, a true badge of the ancient servility of 
 the tenure. Now, however, the right of the lord 
 is confined to such a chattel as the custom of the 
 manor, grown into a law, will permit him to take ; 
 and in most cases the heriot consists not of a 
 chattel at all, but merely of a money payment. 
 
 The mode in which copyhold land is transferred 
 from one person to another still retains much of 
 the primitive simplicity of bygone ages. The 
 copyholder personally surrenders the lands into 
 the hands of the lord, generally through his 
 steward, and this surrender is evidenced by the 
 delivery of some article varying according to the 
 custom of the particular manor : in some manors 
 the surrender is effected by the delivery of a rod, 
 in others of a straw, and ao-ain in others bv a 
 glove. The surrender having been duly effected, 
 the purchaser is admitted, and the various
 
 THE MANOR AND MANOK LAW. 93 
 
 documents used are all entered upon the court 
 rolls of the manor. The steward is the person 
 
 who makes the entries on the court rolls, and 
 they are kept in his custody, but subject however 
 to the right of the tenants to inspect them. The 
 steward also usually presides at the copyhold 
 courts of the manor. 
 
 A special custom is required to entitle the wife 
 of a copyholder to any interest in her husband's 
 lands on his death intestate. Where such a 
 custom does exist the wife's interest is termed 
 her freebench, and it consists generally of a life 
 interest in one-third part of the lands of which 
 the husband died possessed. Freebench in most 
 manors differs from the ancient right of dower in 
 this most important particular, that whilst the 
 widow could claim her dower out of all the 
 freehold lands which her husband actully possessed 
 at any time during the marriage, the right to 
 freebench does not in general attach until the 
 actual death of the husband, and of course may 
 be defeated by a devise of lands by the husband's 
 will. From this it will be seen that freebench is 
 no impediment to free alienation by the husband 
 of his copyholds without an} 7 consent on the pail 
 of his wife. To this general rule, however, the
 
 94 LEGAL LORE. 
 
 manor of Cheltenham forms an important excep- 
 tion ; for by the custom of this manor the 
 widow's freebench attaches in the same way as 
 the ancient right of dower did on all the land of 
 copyhold tenure, of which the husband at any 
 time during the marriage had been possessed. 
 
 Centuries have robbed the manor of much of 
 its importance ; most of the honour and prestige 
 has decayed which once surrounded the lord, his 
 power has become controlled by long continued 
 custom, so that the copyhold tenants are prac- 
 tically independent of him, and have as good a 
 title to their lands as freeholders. Little remains 
 beyond the most prominent of the old formalities, 
 which at one time gave dignity and importance 
 to the lord of the manor and his court. Most of 
 the dealings with copyhold land are now effected 
 out of court, and although the courts are still 
 held at the customary periods, they are for the 
 most part an empty formality, their glamour 
 gone, yet still possessing an especial interest of 
 their own as evidence of the surviving of ancient 
 customs, which have practically remained un- 
 changed through the roll of centuries.
 
 Hncient tenures. 
 
 By England Howlett. 
 
 PRACTICALLY all the landed property in 
 England is, by the policy of our laws, 
 supposed to be granted by, dependent upon, and 
 holden of some superior lord, in consideration of 
 certain services to be rendered to such lord by the 
 possessor of this property, and the terms or 
 manner of their possession is therefore called a 
 tenure. Thus all the land in the kingdom is 
 supposed to be held, mediately or immediately, 
 of the sovereign who is consequently styled the 
 lord or lady paramount. 
 
 All tenures being thus derived, or supposed to 
 be derived, from the sovereign, those who held 
 directly under such sovereign, and in right of the 
 crown and dignity, were called tenants in capit<\ 
 or in chief, which was the most honourable species 
 of tenure, although at the same time it subjected 
 the tenants to far greater and more burthensome 
 services than the inferior tenures did, and this 
 distinction ran through all the different sorts of
 
 96 LEGAL LORE. 
 
 tenure. William I., and other feudal sovereigns, 
 although they made large and numerous grants 
 of land, always reserved a rent or certain annual 
 payments, which were collected by the sheriffs of 
 the counties in which the lands lay, to show that 
 they still retained the dominium directum in 
 themselves. 
 
 With our ancestors the most honourable and 
 hio-hly esteemed species of tenure was that by 
 knight service, and this was purely and entirely a 
 military tenure, being, in fact, the result of the 
 feudal establishment in England. Now to make 
 a tenure by knight service, a determinate quantity 
 of land was necessary, which was called a knight's 
 fee, feodum militare ; the measure of which in 3 
 Edward I., was estimated at twelve ploughlands, 
 and its value (although it varied with the times) 
 in the reigns of Edward I. and Edward II. was 
 stated at £20 per annum. The knight who held 
 this proportion of land was bound to attend his 
 lord to the wars for forty days in every year, if 
 called upon so to do, which attendance was his 
 rent or service for the land he claimed to hold. 
 If, however, he held only half a knight's fee, he 
 was only bound to attend his lord twenty days, 
 and so on in proportion. This tenure of knight
 
 A.NCIENT TENURES. 97 
 
 Bervice drew with it several consequences as 
 inseparably incident to the tenure in chivalry, and 
 one oft lie most profitable, and, at the same time, 
 arbitrary of these was marriage. This incident 
 called marriage was the right which the lord 
 possessed of disposing of his infant wards in 
 matrimony, at their peril of forfeiting to him, in 
 ease of their refusing a suitable match, a sum of 
 money equal to the value of the marriage; that 
 is, what the suitor was willing to pay down to the 
 lord as the price of marrying his ward ; and 
 double the market value was to be forfeited, if the 
 ward presumed to marry without the consent of 
 the lord. 
 
 The personal attendance rendered necessary by 
 knight service growing troublesome and incon- 
 venient in many respects, the tenants found means 
 of compounding for it; first, by sending others in 
 their stead, and then in process of time making a 
 pecuniary satisfaction to the lord in lieu of it. 
 This pecuniary satisfaction at last came to be 
 levied by assessments at so much for every knight's 
 fee ; the first time this appears to have been done 
 was in 5 Henry II., on account of his expedition 
 to Toulouse ; but it soon became so universal thai 
 personal attendance fell quite into disuse. From
 
 98 LEGAL LORE. 
 
 this period we find, from our ancient histories, 
 that when the kings went to war, they levied 
 scutages on their tenants, that is, on all 
 the landowners of the Kingdom, to defray 
 their expenses, and to pay for the hire of 
 troops. 
 
 These assessments, in the time of Henry II., 
 seem to have been made in a most arbitrary 
 manner, and entirely at the king's will and 
 pleasure. The prerogative became, indeed, abused 
 to such an extent, that at last it became a matter 
 of national clamour, and King John was obliged 
 to consent by his Magna Carta, that no scutage 
 should be imposed without the consent of Parlia- 
 ment. But this clause was omitted in the Charter 
 of Henry III., where we only find that scutages, 
 or escuage, should be taken as they were used 
 to be taken in the time of Henry II. ; that is, in 
 a reasonable and moderate manner. Yet after- 
 wards, by statute 25 Edward I., and many sub- 
 sequent statutes, it was again provided, that the 
 king should take no aids or tasks but by the 
 common assent of the realm ; hence it was held 
 that scutage, or escuage, could not be levied 
 except with the consent of Parliament ; such 
 scutages being indeed the groundwork of all
 
 ANCIENT TENURES. 99 
 
 succeeding subsidies, and the land tax (if later 
 t lines. 
 
 It will easily be Been that with the degenerating 
 of knight service, or personal military duty into a 
 pecuniary assessment, all the advantages were 
 destroyed, and nothing in fact remained but the 
 hardships. Instead of having a national militia, 
 composed of barons, knights, and gentlemen, 
 bound by their interests and their honour to 
 defend the king and country, the whole system of 
 military tenures tended to nothing else but a 
 wretched means of raising money to pay an army 
 of occasional mercenaries. At length the military 
 tenures, with all their heavy appendages were 
 destroyed at one blow by statute, 12 Charles II., 
 C. 24, which enacts "that the courts of wards 
 and liveries, and all wardships, liveries, primer 
 seisins, and ousterlemains, values and forfeitures 
 of marriage, by reason of any tenure of the king 
 or others, be totally taken away. And that all 
 fines for alienation, tenures by homage, knight 
 service, and escuage, and also aids for marrying 
 the daughter, or knighting the son, and all tenures 
 of the king in capite, be likewise taken away. 
 And that all sorts of tenures, held of the king or 
 others, be turned into free and common socage;
 
 100 LEGAL LORE. 
 
 save only tenures in frank almoign, copyholds, 
 and the honorary services of grand serjeanty." 
 
 Another ancient tenure was that by Grand 
 Serjeanty, whereby the tenant was bound, instead 
 of serving the king generally in the wars, to do 
 some special honorary service for the king in 
 person ; as to carry his banner, his sword, or the 
 like ; or to be his butler, champion, or other 
 officer at his coronation. Tenure by cornage was 
 a species of grand serjeanty, being a grant of 
 land upon condition that the tenant was to wind 
 a horn when the Scots or other enemies entered 
 the land, in order to warn the king's subjects. 
 
 The tenure of petit serjeanty bears a great 
 resemblance to the tenure of grand serjeanty ; for 
 as the one is a personal service, so the other is a 
 rent or render, both tending to some purpose 
 relative to the king's person. Petit serjeanty 
 as defined by Littleton, consists in holding lands 
 of the king, by service of rendering to him 
 annually some small implement of war, as a bow, 
 a sword, a lance, an arrow, or the like. This, of 
 course, is but socage in effect, for it is no personal 
 service, but a certain rent. The tenure by which 
 the grants to the Duke of Marlborough and the 
 Duke of Wellington, for their great military
 
 A.NCIENT TENURES. 101 
 
 services to the counl ry, arc held, are of this kind, 
 each rendering a small flag or ensign annually, 
 which is deposited in Windsor Castle. Bury 
 House (New Forest), the property of Sir Charles 
 Mill, Bart., is held by the. tenure of presenting 
 the king whenever he enters the New Forest with 
 a brace of milk-white greyhounds. A breed of 
 these dogs is preserved by the family in readiness. 
 King George III. received dogs in recognition of 
 this tenure in 1789, and the incident is the sub- 
 ject of one of Lawrence's pictures. 
 
 In Beckwith's edition of Blount's " Fragmenta 
 Antiquitatis," the following tenure is inserted 
 from the "Black Book of Hereford."— " The 
 tenants at Hampton Bishop, in the county of 
 Hereford, were to get yearly six horse loads of 
 rods or wattels, in the Hay Wood, near Hereford, 
 and bring them to Hereford to make booths (or 
 hurdles to pen sheep in) at the fair when they 
 should be required ; and for every load of the 
 said rods they were to be allowed a halfpenny at 
 the fairs." 
 
 This tenure would appear to relate to one 
 particular fair only, and not to all the fairs 
 formerly held at Hereford. The particular fair 
 is supposed to have been the one beginning on
 
 102 LEGAL LORE. 
 
 May 19th, and commonly called the nine-days' 
 fair, from the circumstance of its continuing for 
 that length of time. From time immemorial 
 this fair was proclaimed, with certain formalities, 
 by the Bishop of Hereford's bailiff, or his deputy, 
 the tolls of the fair belonging to one or both of 
 these officers. During the continuance of the 
 fair, the Bishop's bailiff superseded the Mayor 
 of Hereford as acting magistrate, the fair 
 being held in a street opposite the Bishop's 
 palace. 
 
 Brienston, in Dorsetshire, was held in grand 
 serjeanty by a curious jocular tenure, viz. : — by 
 finding a man to go before the king's army for 
 forty days when he should make war in Scotland 
 (some records say in Wales) bareheaded and bare- 
 footed, in his shirt, and linen drawers, holding in 
 one hand a bow, and in the other an arrow 
 without feathers.* 
 
 The Dukes of Athol hold the Blair Athol 
 estate by the tenure of presenting a white rose 
 to the sovereign whenever he visits them there. 
 
 Land was frequently held by the tenure of 
 protecting the church property in times of war. 
 Scott tells us how the Bishop of Durham gave 
 
 * Southey's Common Place Book, 4th Series, 1851, p. 175.
 
 AN (.'IK NT TKNI'ltKS. 103 
 
 Lands to the Danish Count, Witikind, to be held 
 by this tenure. The story is not true, but the 
 tenure is ; 
 
 Broad lands be gave him on Tyne and Wear, 
 To be beld of the Church by bridle and spear; 
 Pari of Monkwearmouth, of Tynedale part, 
 
 To better his will and soften his heart. 
 
 Harold the Dauntless. 
 Canto i., IV. 
 
 The tenure of ancient demesne exists in those 
 manors, and in those only, which belonged to the 
 crown in the reigns of Edward the Confessor and 
 William the Conqueror, and in Domesday Book 
 are called Terrce Regis Edwardi. The tenants are 
 freeholders and possessed certain privileges, the 
 chief of which was a right to sue and be sued 
 only in their lord's court. 
 
 Another kind of ancient tenure, still subsisting, 
 is the tenure of frankalmoign, or free alms, and 
 this is the tenure by which the lands of the church 
 are for the most part held. This tenure is 
 expressly excepted from the statute, 12 Charles 
 II., by which the other ancient tenures were 
 destroyed. It has no peculiar incidents, the 
 tenants not being bound even fco do fealty to the 
 lords, because, as Littleton says, the prayers and
 
 104 LEGAL LORE. 
 
 other divine services of the tenants are better for 
 the lords than any doing of fealty. As the church 
 is a body having perpetual existence, there is, 
 moreover, no chance of any escheat. By this 
 tenure almost all the monasteries and religious 
 houses held their lands. It was an old Saxon 
 tenure ; and continued under the Norman revolu- 
 tion, through the great respect that was shewn 
 to religion and religious men in ancient times. 
 This too, no doubt, is the reason that tenants in 
 frankalmoign were discharged from all other 
 services except the repairing of highways, 
 building castles, and repelling invasions ; just in 
 fact as the Druids, among the Ancient Britons, 
 had similar privileges. The tenure being purely 
 spiritual, the lord had no remedy for neglect by 
 distress or otherwise, but merely a complaint to 
 the ordinary to correct it. 
 
 One of the most interesting tenures is that of 
 Borough English. There are a great number 
 of manors throughout the country in which this 
 tenure prevails ; they are not however confined 
 to one county or one district. Borough English 
 is the right of succession of the youngest son, 
 instead of the eldest, to real estate in case of 
 intestacy, but the custom is not always the same ;
 
 A N('l K. \T TENURES. L05 
 
 it differs in differeni manors. In some it is 
 confined fco fche sons only, and if there should be 
 no bod fche estate is shared equally amongsl all 
 the daughters. In other manors, principally 
 Sussex, the youngest daughter inherits. Again, 
 there ate cases to be found where if there he no 
 children, the youngest brother inherits, and in 
 others it goes according to the rules of the 
 common law. There are, moreover, places in 
 which the copyhold land only is Borough English, 
 while the freehold is held by the ordinary tenure, 
 and in others the freehold and copyhold alike 
 follow the Borough English custom. 
 
 The area over which this Borough English 
 tenure prevails is an exceedingly wide one. It is 
 found in nearly every part of Europe, except 
 perhaps Italy and Spain — in Germany, Hungary, 
 the Ural mountains, and in Asia as far as the 
 borders of China. Man} T attempts have been 
 made to explain the custom. Littleton suggests 
 that the youngest son, by reason of his tender 
 age, is not so capable as the rest of his brethren 
 to help himself. It is possible the origin may 
 have come to us from the Tartars, amongst whom 
 this custom of descent to the youngest son also 
 prevails. That nation is composed almost
 
 106 LEGAL LORE. 
 
 entirely of shepherds and herdsmen, and the 
 elder sons, as soon as they are capable of leading 
 a pastoral life, migrate from their father with a 
 certain allotment of cattle, and go to seek a new 
 habitation. And thus we find that, among many 
 other northern nations, it was the custom for all 
 the sons, but one, to migrate from the father, 
 which one became his heir. 
 
 The tenure of Gavelkind prevails principally in 
 the County of Kent. It is universally known 
 what struggles the Kentish men made to preserve 
 their ancient liberties, and with how much success 
 those struggles were attended. It seems fair 
 therefore, to conclude that this custom was a 
 part of those liberties, agreeably to the general 
 opinion, that Gavelkind, before the Norman 
 Conquest, was the general custom of the realm. 
 The distinguishing properties of this tenure are 
 various ; some of the principal are these : 1. The 
 tenant is of age sufficient to alienate his estate by 
 feoffment at the age of fifteen. 2. There never 
 was any escheat in case of an attainder and 
 execution for felony ; their maxim being " the 
 father to the bough, the son to the plough." 
 3. In most places, the tenant had the power of 
 devising his lands by will, before the statute for
 
 ANCIENT TENURES. L07 
 
 that purpose was made. 4. The lands descend 
 not to the eldest, youngest, or any one- son only, 
 but to all the sons together. This last incident 
 is, of course, the most important affecting the 
 tenure, and not only this, l>ut also the most 
 interesting, in that, like Borough English, it 
 prevails to the present day. True it is that 
 certain lands in Kent, once Gavelkind, have been 
 made descendable according to the rules of the 
 common law, by special statutes ; however, these 
 statutes only affect a very small portion of the 
 county. 
 
 Gavelkind and Borough English, being customs 
 already acknowledged by the law, need not be 
 specially pleaded ; it is sufficient to show that 
 the lands are affected and regulated by the 
 same ; but all other private customs must be 
 pleaded. 
 
 The ancient Barons of Buccleuch, both from 
 feudal splendour and from their frontier situation, 
 retained in their household at Branksome a 
 number of gentlemen of their own name, who 
 held lands from their chief for the military 
 service of watching and guarding his castle. 
 
 Nine and twenty knights of fame 
 
 Hun" their shields in Branksome Hall
 
 108 LEGAL LORE. 
 
 Nine and twenty squires of name 
 
 Brought them their steeds from bower to stall. 
 Nine and twenty yeomen tall 
 
 Waited duteous on them all. 
 They were all knights of metal true, 
 Kinsmen to the bold Buceleuch. 
 
 " Lay of the Last Minstrel." — Scott. 
 Canto i., III.
 
 Haws of the forest 
 
 liv Edward Pe vcoce, is. \. 
 
 THE subjeel of "The Laws of the Forest 
 and of the wild things which have their 
 homes therein, both in our own island and else- 
 where, lias been a matter of discussion for ao-es ; 
 Inn very little has hern written thereon which is 
 of much service, except to legal specialists. It is, 
 indeed, one of those difficult subjects which is 
 hardly possible to make interesting to those 
 whose thoughts range in the present rather than 
 in the past. 
 
 There can be no doubt whatever, that from the 
 birth of the human race, long ere we can trace our 
 history back in written documents, the killing <>!' 
 animals has been a sport as well as a means of pro- 
 curing food ; both these may be considered, what- 
 ever certain dreamers may aver to the contrary, 
 as among the necessities of human life. We can- 
 not be quite certain whether the stone axes, 
 hammers, and spears, of which we see such 
 numbers in our museums, were wrought in
 
 110 LEGAL LORE. 
 
 anticipation of the delights of the chase, or 
 whether they were simply, what may be called, 
 the tools of the primseval butcher ; but, knowing 
 as w T e do, the contempt in which every man at 
 the present hour is held, who having wealth and 
 leisure enough to indulge in what is called " sport," 
 abstains from amusing himself in some form of 
 slaughter, we may well believe that our palaeoli- 
 thic predecessors, however empty the larder 
 might be, would try to impose on themselves that 
 what they did was done to amuse themselves, as 
 a manly exercise, not a stern necessity. In con- 
 firmation of this, we must call mind that there 
 have been found several weapons with the rein- 
 deer and other animals carved, or perhaps 
 it would be better to say scratched, upon 
 them with a high degree of pictorial excellence ; 
 we may therefore infer that amusement, as 
 well as appetite, occupied the minds of those 
 early artists, who so deftly represented the 
 creatures on whom they waged war. Had 
 they merely been regarded as things to be 
 eaten, such as the tinned meats we now buy from 
 the provision merchant, they would never have 
 been held worthy of artistic treatment. 
 
 One of the oldest proverbs that have come down
 
 I..\\\s OF THE FOREST. Ill 
 
 to us, if indeed it In- not the very oldest, is thai 
 wherein we are told something 
 
 " Of Nimrod the founder 
 • )i empire and chace, 
 W'lni made I he woods wonder 
 And quake for their race." 
 
 That lie was the first of the greal hunters is a 
 dream of Lord Byron's, not in any way counte- 
 nanced by Holy Scriptures, or any of the old 
 authorities. We are simply told in Genesis that 
 Nimrod was a son of Cush, and that "He began 
 to be a mighty one in the earth. He was a 
 mighty hunter before the Lord. Wherefore it is 
 said, even as Nimrod the mighty hunter before 
 
 © J 
 
 the Lord."* The precise meaning of this has 
 been questioned. It most likely signifies that 
 X iin rod was the first person who organised those 
 mighty hunting expeditions, which were so 
 famous in the days of the great Oriental despo- 
 tisms. From these tyrants it is probable thai 
 the Forest Laws of Mediaeval Europe had their 
 origin. In the sculptures that have been un- 
 earthed in the dead cities of the East, hunting 
 
 scenes of great magnificence are not uncommon, 
 
 © © 
 
 nor are they unknown in Egypt, where, however, 
 i lhapter \., \ erses 8 and '.'.
 
 112 LEGAL LORE. 
 
 the capture of fish was the more common sport, 
 as the Nile may be said to have been at every 
 man's door. 
 
 That Forest Laws of some kind or other 
 existed in these far-off times may be accepted 
 as certain, and we may take it for granted, when 
 we call to mind the general legislation then in 
 force, that they were terribly cruel according to 
 our modern ideas, but we can at present only 
 arrive at these conclusions by inference. 
 
 When Rome became the mistress of the world, 
 we know that in many parts of the empire the 
 wild creatures were rigorously preserved, but we 
 do not think that they were often hunted by their 
 owners. Such was rather the duty of freed men 
 and slaves. Those which were fit for food were 
 preserved as delicacies for the table, but the 
 larger beasts, such as the lion, the tiger, the bear, 
 the lynx, and perhaps even the wild cat, were 
 reserved for the sports of the amphitheatre. 
 Amphitheatres were much more common than is 
 usually supposed. In a few places their remains 
 exist still, but most of them have perished, 
 serving as quarries for stone during the whole 
 of the Middle Ages, and in Mohammedan lands 
 to a much more modern period, perhaps even
 
 LAWS OF THE FOREST. 113 
 
 to the present day. We are not Bure that 
 any list of them has been preserved, or could 
 now be compiled, but they were bo numerous 
 throughout the empire thai the possession 
 of wild beasts on the immense estates oi the 
 Roman patricians musl have been a great source 
 of wealth to their owners. The Roman nobles 
 did not care for field-sports as the northern 
 nations did. A feeling or instinct of this kind 
 dies hard. At the present day the Italian cares 
 much less for such amusements than the English- 
 man, the German, or the inhabitants of northern 
 France. Virgil, who represents more fully than 
 any other heathen poet, the feelings of the better 
 sort of Romans of Ins own time, says, attributing 
 the woids to another, but evidently speaking his 
 own thoughts : — 
 
 •• Above aught else let the woods be dear to me."* 
 This was, however, not for the sake of the 
 slaughter that might be perpetrated therein, but 
 on account of their many beauties and the grateful 
 shade winch they afforded. Virgil was in many 
 respects a modern in his love of scenery, though 
 we doubt whether snow-clad mountains and craggy 
 heights would have appealed to him as they have 
 
 * Eel. II., line (hi.
 
 1H LEGAL LORE. 
 
 done to us during the short time that has elapsed 
 since we have been able to see them without 
 discomfort. 
 
 When the Roman Empire was in the zenith of 
 its glory, there does not seem to have been in 
 Gaul or Britain any vast stretches of forest. The 
 country was no doubt well wooded when we 
 compare it with the France or England of 
 to-day, for during the last two hundred years 
 trees have been wantonly destroyed, to the great 
 injury of agriculture as well as local beauty, for 
 the sake of supplying land-owners with ready 
 money. Long continued wars have also desolated 
 the national forests for the sake of supplying 
 timber to the shipbuilder. 
 
 After the various invasions which desolated so 
 many parts of the Roman Empire, large portions 
 of Gaul reverted to a state of nature. Towns and 
 villages were burned, their inhabitants slaughtered, 
 or scattered far away from their homes. A pic- 
 turesque account of what followed is given in Mont- 
 alembert's Les Moines d' Occident, from which we 
 gather that much of Gaul had reverted to a state 
 of nature, such as it was in ere civilisation had 
 made its first incursions on the untamed wilderness. 
 The lives of the early Gallic saints, found scattered
 
 LAWS OF THE FOREST. 115 
 
 through the many volumes of the Acta Sanctorum , 
 bear the like testimony, as do many parts of the 
 old romances, the scenes of which so often lie 
 in tlif trackless forest. 
 
 In England, things may not have been quite so 
 woeful. The population, we believe, never became 
 so scanty as in Eastern Gaul. It is still a matter 
 of controversy whether here the native folk were 
 slaughtered or driven into the mountains of 
 Wales, or whether the greater part of them were 
 made bondmen. We hold the latter opinion, but 
 the whole subject is beset with great difficulties. 
 However this may be, it is quite certain that the 
 population was very much reduced; many wide 
 districts, which had been carefully cultivated by 
 the Roman settlers, or natives who had adopted 
 their manners, were laid waste. The picturesque 
 villas, with their adjoining peasant homesteads, 
 were all gone — burnt with fire, — and woodland, 
 scrub, or mere sandy desolation supplied the place 
 of the adjoining pleasure-grounds, farms, and 
 pastures. One of these desolate tracts named 
 Andredsweald stretched from Kent to the Hamp- 
 shire Downs, at some points almost touching the 
 Thames. Another great forest appears to have 
 extended from a point a little to the north of
 
 116 LEGAL LORE. 
 
 London, till it reached the forests of Rockingham 
 and Sherwood. The great level of Hatfield 
 Chace seems to have been a spur of this, if not so, 
 they were but separated by a narrow stretch of 
 cultivated land from the forest itself. Deer were 
 plentiful on Hatfield Chace until the reign of 
 Charles the First. They even continued to exist 
 longer on the eastern side of the Trent, on a long 
 and narrow belt of scrub which extended from 
 Morton, near Gainsburgh, to the point where the 
 Trent falls into the Humber. An ancestor of our 
 own, who died as recently as 1758, was accus- 
 tomed to hunt them there. As well as these 
 larger forests, the whole land was dotted over 
 with places once the sites of Roman dwellings, 
 but which now had become either mere wastes, or 
 woodlands covered with tall timber trees, inter- 
 spersed with the elder, the nut, the thorn, the 
 birch, the maple, and the alder. In some places 
 the yew and the holly were abundant also, but they 
 seem to have flourished only in widely separated 
 patches. 
 
 The Saxon and the Danish conquests came 
 about gradually, and the country was in so 
 disturbed a state that it was impossible for 
 rigid Forest Laws to be enacted, or even if
 
 LAWS OE THE FOREST. 117 
 
 written on parchment to be put in force. Be- 
 sides this, the Saxon and Danish Leaders were of 
 a different character from their Norman suc- 
 cessors. A vague memory still haunted them 
 of the \'\i-r Life once Lived in Germany and 
 Scandinavia ; a life as different as can well be 
 imagined from that of modern democracy, but 
 still one in which every thrall, bondman, and slave 
 had certain well ascertained rights, which were 
 under the protection of the State and the 
 Church. 
 
 Thus it came to pass that there were in almost 
 every district stretches of forest land, which were, 
 in a great degree, open to the people, where men 
 could fell timber for their dwellings and -laughter 
 animals for food ; though even before the Norman 
 Conquest had come as a shadow on the liberties 
 nf Englishmen, there is reason for thinking that 
 forestal-rights had become, in name at least, a 
 privilege of the king and his great theigns. 
 
 The Norman Forest Law was of a similar 
 character to that which William's forefathers had 
 enforced in Normandy. The country, which we 
 have for ages known as France, was, in earlier 
 times, broken up into many provinces, and it was 
 only by a -low process thai it became one. Each
 
 118 LEGAL LORE. 
 
 of these provinces had a Forest Law of its own. 
 When the Normans settled in the goodly land 
 which they called after themselves, they retained 
 the customs which they found there. When 
 William transferred the laws of his old duchy 
 to his new kingdom, it could, at the first, only be 
 by an act of favour that anyone could kill a beast of 
 chase except himself or his retainers. This from 
 the nature of things did not last long. William 
 never could have intended to retain the whole of 
 the vast territories which the victory of Senlac 
 had given him in his own possession. He divided 
 the kingdom among his chief tenants — tenants 
 in capite, — and to these great men, with some 
 slight exceptions, he handed over all forestal 
 rights which existed in their domains, the king- 
 retaining to himself for his own pleasure, and as 
 a mark of dignity, some great forests, which for 
 ages have remained in royal hands. 
 
 Notwithstanding; certain Danish and Saxon 
 charters, it has always been traditionally held 
 that our Forest Laws come from William the 
 First, and this is substantially true, though 
 objections to the statement might be taken. It 
 would not be unsafe to say that no one but the 
 Conqueror could have enforced so drastic a
 
 LAWS VV THE FOREST. 11!) 
 
 regulation. As the Bishop of Oxford has so 
 truly said, "The King made and kept good 
 peace. The Dane-geld and the Forest-Law were 
 not too much to pay for the escape from private 
 war and feudal disruption."' It is true that 
 William had desolated large tracts of land to 
 make them serve him for the chase; the crime 
 was terrible, though exaggerated by modern 
 historians ; but he had many noble qualities, so 
 that those who had not personally suffered were 
 willing to overlook the evil. With his son, 
 William the Red, the Forest Laws became 
 unbearable, and were hated by baron and villain 
 alike. 
 
 He was one of the worst kin^s which ever 
 disgraced the English throne. In a deeply 
 religious age he was wantonly opposed to all god- 
 liness. Alike the enemy of God and Man, a type 
 and representative of all things evil, we need not 
 wonder when he fell by an arrow in the New 
 Forest, that men saw a visible judgment of 
 God. 
 
 T«> him, and to Henry the First, are com- 
 monly ascribed the ferocity of the Forest Laws. 
 Men believed that in after time kings would have 
 
 * Constitutional History of England, I. Ed., Vol. I., p. 2S9.
 
 120 LEGAL LORE. 
 
 mitigated matters had it been in their power. 
 They said, and there is much truth in the aver- 
 ment, that these bad laws required the support of 
 an army of evil men to work them efficiently, and 
 that for the ordinary court officials, or the king 
 himself, to thwart these people would be especially 
 dangerous. When we call to mind what have 
 been from time to time the characters of the 
 farmers of the taxes at Naples, and various parts 
 of France, we cannot deny that there is much 
 truth in the statement. 
 
 Affairs reached their most evil point when 
 Henry II. was King. It was then the custom 
 for the royal foresters to be a complete law unto 
 themselves, they put to death and mutilated 
 whom they would without any trial whatever, 
 or with but the mockery of the water-ordeal, a 
 farce which had already been condemned by the 
 Church, but which was very fashionable with 
 ruffians who were anxious to secure a conviction. 
 One of these fellows laid hold of an ecclesiastic, 
 with the intention of extracting from him a large 
 sum of money. Well was it for him that he was 
 of the diocese of Lincoln, and that at that time 
 Hugh of Avalon was its bishop. The thunders 
 of excommunication were at once heard, the
 
 LAWS OF THE FOREST. 121 
 
 ecclesiastic escaped from the forester's clutches, 
 and from that time forward, though much vi 
 remained to be done, the tide turned, and the 
 Forest Laws were administered with something 
 more nearly approaching to justice.
 
 Grial b\> 3ur\> in ©lfc> Gimee. 
 
 By Thomas Frost. 
 
 WHEN we congratulate ourselves, as we are 
 so apt to do, on the length of time the 
 system of trial by jury has been established in 
 England, and the safeguard it affords against 
 attempts to strain the law to the prejudice of the 
 accused, we are often unmindful of the fact that 
 the institution has not always proved a safeguard 
 when the court, acting under the influence of the 
 Crown, endeavoured to obtain a conviction. It 
 was only in the latter half of the sixteenth 
 century that juries began to evince that deter- 
 mination not to yield their own judgment to the 
 wishes of those in high authority, which became 
 further developed in the course of the seventeenth. 
 An interesting illustration of the old spirit of 
 judges, and the new spirit of juries, is afforded by 
 the trial of Sir Nicholas Throckmorton, in 1554, 
 on a charge of high treason, in conspiring the 
 death or deposition of the Queen, and the seizure 
 by force of arms of the Tower of London. The
 
 TRIAL BY JURY IN OLD TIMES. 123 
 
 prosecution was conducted by Serjeant Stanford 
 and the Attorney-General, Griffin, the former 
 leading ; and it is noteworthy that both they and 
 Chief* Justice Bromley questioned the prisoner in 
 much the same manner as is still customary in 
 France and Belgium, striving to procure evidence 
 that would convict him out of his own mouth. 
 The endeavour failed, and the only criminating 
 evidence against the prisoner was contained in the 
 alleged confessions of Winter and Crofts, who, 
 however, were not called as witnesses. 
 
 The jury, after several hours' deliberation, 
 returned a verdict of not guilty, upon which the 
 Lord Chief Justice addressed them in threatening 
 
 o 
 
 tones, saying, "Remember yourselves better. Have 
 you considered substantially the whole evidence 
 as it was declared and recited ? The matter doth 
 touch the Queen's highness and yourselves also. 
 Take good heed what you do." The jury were 
 firm, however, and the foreman replied to the 
 remonstrance of the bench, "We have found him 
 not guilty, agreeable to all our consciences." 
 Then the Attorney-General rose, and addressing 
 the court, said, "An it please you. my lords, for- 
 asmuch as it seemeth these men of the jury, which 
 have strangely acquitted the prisoner of his
 
 124 LEGAL LORE. 
 
 treasons whereof he was indicted, will forthwith 
 depart the court, I pray you for the Queen that 
 they and every one of them may be bound in a 
 recognizance of £500 a-piece, to answer to such 
 matters as they shall be charged with in the 
 Queen's behalf, whensoever they shall be charged 
 or called." The court went beyond even this 
 audacious request, for they actually committed 
 the jury to prison ! Four of them were discharged 
 shortly afterwards, having so little moral stamina 
 left as to make a humble confession that they had 
 done wrong ; but the remaining eight were 
 brought before the Star Chamber and severely 
 dealt with, three being ordered to pay a fine of 
 £2,000 each, and the others £200 each. 
 
 In the following reign, in a case in which three 
 persons were indicted for murder, and the jury 
 found them guilty of manslaughter only, contrary 
 to the direction of the court, the jurors were both 
 fined and bound in recognizances for their future 
 "good behaviour." A decision of the Lord 
 Chancellor, the two Chief Justices, and the Chief 
 Baron, in the reign of James I., sets forth that 
 when a person is found guilty on indictment, the 
 jury should not be questioned; but when a jury 
 has acquitted a prisoner against what the court
 
 TRIAL BY JURY IN OLD TIMES. L25 
 
 holds to be proof of guilt, they may be charged 
 
 in the Star Chamber, "for their partiality in 
 
 finding a ma nifesl offender not guilty." In L667 3 
 
 we find this view extended to the ease of grand 
 
 © 
 
 juries ignoring a bill on grounds which the courl 
 did not consider sufficient, Chief Justice Kelying 
 in that year having fined a grand jury of the 
 County of Somerset, for not finding a true hill 
 against a man accused of murder; hut, says the 
 report, " because they were gentlemen of repute 
 in the county, the court spared the fine." This 
 case, and several others in which the same judge 
 had acted in a similar manner, were brought 
 under the notice of the House of Commons, how- 
 ever, and that assembly resolved "that the pre- 
 cedents and practice of fining or imprisoning 
 jurors for verdicts is illegal." 
 
 Notwithstanding this resolution of the House 
 of Commons, William Penn, and another member 
 of the Society of Friends, named Mead, being 
 indicted at the Old Bailey for having, with other 
 persons unknown, unlawfully and tumultuously 
 assembled in Gracechurch Street, in the City of 
 London, the Recorder dealt with the jury in a 
 manner which caused the illegality of fining jurors 
 
 for their verdicts to be again brought into 
 
 © ©
 
 126 LEGAL LORE. 
 
 question. The indictment set forth that Penn, 
 by agreement with and abetment of Mead, did in 
 the open street speak and preach to the persons 
 there assembled, by reason whereof a great con- 
 course of people gathered and remained a long 
 time, in contempt of the King and the law, and 
 to the great terror and disturbance of many of 
 His Majesty's liege subjects. The trial took 
 place before the Recorder, the Lord Mayor, and 
 the Aldermen ; and when witnesses had deposed 
 that Penn had preached, and that Mead was 
 there with him, the Recorder summed up the 
 evidence, and the jury retired to consider their 
 verdict. They were absent a considerable time, 
 at length returning with the verdict that Penn 
 was " guilty of speaking in Gracechurch Street." 
 
 " Is that all ? " the Recorder asked. 
 
 " That is all I have in commission," replied the 
 foreman. 
 
 "You had as good say nothing," observed the 
 Recorder, and the Lord Mayor added, " Was it 
 not an unlawful assembly ? You mean he was 
 speaking to a tumult of people there." 
 
 " My lord," returned the foreman, " that is all 
 I have in commission." 
 
 " The law of England," said the Recorder " will
 
 TRIAL BY JURY IN OLD TIMES. 127 
 
 Dot allow you to part until you have given in 
 your verdict.'' 
 
 "We have given in our verdict," returned the 
 jury, "and we can give in no other." 
 
 "Gentlemen," said the Recorder, "you have 
 not given in your verdict, and you had as good 
 say nothing; therefore go and consider it once 
 more, that we may make an end of this trouble- 
 some business." 
 
 The jury then asked for pen, ink, and paper, 
 and the request being complied with, they again 
 retired, returning after a brief interval with their 
 verdict in writing. They found Penn "guilty of 
 speaking or preaching to an assembly met to- 
 gether in Gracechurch Street," and Mead not 
 guilty. 
 
 " Gentlemen," said the Recorder, regarding the 
 jury angrily, "you shall not be dismissed till we 
 have a verdict that the court will accept ; and you 
 shall be locked up, without meat, drink, fire, and 
 tobacco. You shall not think thus to abuse the 
 court. We will have a verdict, or you shall 
 starve for it." 
 
 Penn protested against this course, upon which 
 the Recorder ordered the officers of the court to 
 stop his mouth or remove him. The jury not
 
 128 LEGAL LORE. 
 
 leaving their box, the Recorder again directed 
 them to retire and re-consider their verdict. 
 Penn made a spirited remonstrance. " The 
 agreement of twelve men," said he, "is a verdict 
 in law, and such a one having been given by the 
 jury, I require the clerk of the peace to record it, 
 as he will answer at his peril. And if the jury 
 bring in another verdict contradictory to this, I 
 affirm they are perjured men in law. You are 
 Englishmen," he added, turning to the jury, "mind 
 your privilege ; give not away your right." The 
 court then adjourned to the following morning, 
 when the prisoners were brought to the bar, and 
 the jury, who had been locked up all night, were 
 sent for. They were firm of purpose, and through 
 their foreman persisted in their verdict. 
 
 " What is this to the purpose ? " demanded the 
 Recorder, " I will have a verdict." Then 
 addressing a juror, named Bushel, whom he had 
 threatened on the previous day, he said, "you are 
 a factious fellow ; I will set a mark on you, and 
 whilst I have anything to do in the city, I will 
 have an eye on you." 
 
 Penn again protested against the jury being 
 threatened in this manner, upon which the Lord 
 Mayor ordered that his mouth should be stopped,
 
 TRIAL BY JURY IN old TIMES. 129 
 
 and that the gaoler should brine: fetters find chain 
 him to the floor; but it does not appear that this 
 was done. The jury were again directed to retire 
 and bring in a different verdict, and they with- 
 drew under protest, the foreman saying, "We 
 have given in our verdict, and all agreed to it ; 
 and if we give in another, it will be a force upon 
 us to save our lives." 
 
 According to the narrative written bv Penn 
 and Mead, and quoted in Forsyth's " History of 
 Trial by Jury," this scene took place on Sunday 
 morning, and the court adjourned again to the 
 following day, when, unless they were supplied 
 with food surreptitiously, they must have fasted 
 since Saturday. The foreman gave in their 
 verdict in writing, as before, to which they had 
 severally subscribed their names. The clerk 
 received it, but was prevented from reading it by 
 the Recorder, who desired him to ask for a 
 "positive verdict." 
 
 " That is our verdict," said the foreman. " We 
 have subscribed to it." 
 
 " Then hearken to your verdict," said the clerk. 
 "You say that William Penn is not guilty in 
 manner and form as he stands indicted; you say 
 that William Mead is not guilty in manner and
 
 130 LEGAL LORE. 
 
 form as he stands indicted ; and so say you all." 
 
 The jury responded affirmatively, and their 
 names were then called over, and each juror was 
 commanded to give his separate verdict, which 
 they did unanimously. 
 
 " I am sorry, gentlemen," the Recorder then 
 said, " you have followed your own judgments 
 and opinions, rather than the good and wholesome 
 advice which was given you. God keep my life 
 out of your hands ! But for this the court fines 
 3 t ou forty marks a man, and imprisonment till 
 paid." 
 
 Penn was about to leave the dock, but was 
 prevented from doing so, upon which he said, 
 " I demand my liberty, being freed by the jury." 
 
 " You are in for your fines," the Lord Mayor 
 told the prisoners. 
 
 " Fines, for what ? " demanded Penn. 
 
 " For contempt of court," replied the Lord 
 Mayor. 
 
 "I ask," exclaimed Penn, ''if it be according 
 to the fundamental laws of England, that any 
 Englishman should be fined or amerced but by 
 the judgment of his peers or jury ; since it 
 expressly contradicts the fourteenth and twenty- 
 ninth chapters of the Great Charter of England,
 
 TRIAL BY JURY IX OLD TIMES. 131 
 
 which say, 'No freeman oughl to be amerced l>ut 
 by the oath of good and lawful men of the 
 vicinage.' " 
 
 "Take him away," cried the Recorder. 
 
 "They then," continues the narrative, "hauled 
 the prisoners into the bail-dock, and from thence 
 sent them to Newgate, for non-payment of their 
 fines ; and so were their jury. But the jury were 
 afterwards discharged upon an habeas corpus, 
 returnable in the Common Pleas, where their 
 commitment was adjudged illegal." Even then, 
 judges appear to have remained unconvinced of 
 the illegality of the practice, or stubborn in their 
 desire to enforce their own views or wishes upon 
 juries ; for the question was not regarded as 
 finally settled until the decision in the Court of 
 Common Pleas was clinched, in the same year, by 
 a similar judgment of the Court of King's Bench.
 
 Barbarous punisbmcnts. 
 
 By Sidney W. Clarke. 
 
 THAT the world has become more merciful 
 as it has grown older, is a truism at once 
 apparent to anyone who gives even a cursory 
 glance at any of the numerous works dealing 
 with the criminal laws of the olden time. Still 
 the approach to the most excellent quality has 
 been regretably and painfully slow, and it is 
 surely a stain on the boasted enlightenment of 
 the nineteenth century, that the century had run 
 through nearly three-fourths of its existence 
 before the terrible and vindictive punishment of 
 drawing and quartering disappeared from our 
 statute book. In most States the early laws 
 have been of a blood-thirsty and fear-inspiring 
 nature, but what excuse can be urged for the fact 
 that until the fourth day of July, in the year of 
 Grace 1870, the punishment ordained by law for 
 the crime of high treason, was that the un- 
 fortunate offender should be drawn on a hurdle 
 to the place of execution, there to be hanged by
 
 BARBAROUS LH'X ISH.M KNTS. 133 
 
 the aeck (ill he be dead; iliut his bead be 
 severed from his hotly ; that his body be divided 
 into four quarters; and that his head and 
 quarters be at the disposal of the Crown. In 
 Blackstone's time the sentence was still more 
 savage, or, as the great Commentator puts it, 
 '■ very solemn and terrible." It was that the 
 offender be drawn to the gallows, and not be 
 carried or walk ; " though usually," says Black- 
 stone, "by connivance, at length ripened by 
 humanity into law, a sledge or hurdle was 
 allowed to preserve the offender from the extreme 
 torment of beinsf dragged on the o-round or 
 pavement ; " that he be hanged by the neck and 
 then cut down alive ; that his entrails be taken 
 out, and burned before his eyes, while he was 
 still alive ; that his head be cut off, his body be 
 divided into four parts, and his head and quarters 
 be at the King's disposal. What our tender- 
 hearted monarchs did with the quivering pieces 
 of flesh let the stones of Temple Bar, the City 
 Gates, and the Tower bear witness. Here are a 
 couple of extracts from that perennial fountain of 
 information, the diary of Mr. Samuel Pepys. 
 Under date of October L3th, l(i()0, he writes, 
 " I went out to Charing Cross to see Major-
 
 134 LEGAL LORE 
 
 General Harrison," one of the regicides, "hanged, 
 drawn, and quartered, which was done there, he 
 looking as cheerful as any man could do in that 
 condition." Note the grim humour of the words 
 in italics. " He was presently cut down, and his 
 head and heart shown to the people, at which 
 there was great shouts of joy." Again, on 
 October 20th, in the same year : — " This after- 
 noon going through London and calling at 
 Crowe's, the upholsterer's, in St. Bartholomew's, 
 I saw the limbs of some of our new traytors set 
 upon Aldersgate, which was a sad sight to see ; 
 and a bloody week this and the last have been, 
 there being ten hanged, drawn, and quartered." 
 
 It will be observed that the masculine gender 
 is used in the foregoing sentences for high 
 treason ; for, if the offender was a woman, the law 
 with a delicacy (!) one would hardly have 
 expected, recognised that " the decency due to the 
 sex forbids the exposing and publicly mutilating 
 their bodies ; " so a woman was simply to be drawn 
 to the gallows, and there burned alive. And 
 these punishments for treason Sir Edward Coke 
 attempted to justify on Scriptural grounds, 
 adding " it is punishment undoubtedly just, for 
 our liege lord the King is lord of every one of
 
 BARBAROUS PUNISHMENTS. L35 
 
 our members, and they have severally conspired 
 against him, and should each one Buffer." 
 Evidently justice has not always spelt humanity. 
 Auot her of the horrible punishments decreed 
 by English law was that of boiling to death, 
 which in the reign of Henry VIII. was inflicted 
 for poisoning, and recalls the most cruel tortures 
 ol* China and the Orient, where slicing to death 
 and impalement alive are or were common forms 
 of punishment. The awful fate of being boiled 
 alive was specially devised for the benefit of 
 John Roose, a cook, who had been convicted of 
 throwing poison into a pot of broth intended for 
 the family of the Bishop of Rochester and for 
 the poor of the Parish ; in 1542, Margaret 
 Davey suffered the same lingering death at 
 Smithfield. So fearful were our ancestors of 
 poison, that in Scotland, in 1(501, Thomas Bellie, 
 a burgess of Brechin, and his son were banished 
 for life by the High Court of Justiciary, for the 
 heinous offence of poisoning a couple of trouble- 
 some hens belonging to a neighbour. Even the 
 laws of Draco, said on account of their severity 
 to have been written not in ink but in blood, can 
 scarcely compete with these examples of British 
 barbarity.
 
 136 LEGAL LORE. 
 
 Among the Romans strangulation, precipi- 
 tation from a rocky height (a mode of carrying 
 out the death sentence still found amongst savage 
 tribes), and lashing to death were forms of 
 punishment. Soldiers guilty of military offences 
 had to run the gauntlet. Upon a given signal 
 all the soldiers of the legion to which the offender 
 belonged fell upon him with sticks and stones, 
 and generally killed him on the spot. If, 
 however, he succeeded in making his escape, he 
 was thenceforth an exile from his native country. 
 Offending slaves were first scourged and then 
 crucified. They were compelled to carry the 
 cross to the place of execution, and after being 
 suspended were left to perish by slow degrees. 
 Crucifixion was abolished throughout the Roman 
 Empire by Constantine, out of reverence to the 
 sacred symbol. Other cruel punishments were 
 burning alive, exposure to wild animals, and 
 condemnation to fight as gladiators in the arena 
 for the amusement of the citizens. The second 
 of these modes of death, for death was the 
 invariable result, was the one usually meted out 
 to the early Christians — " If the Tiber overflows 
 its banks ; if there be a famine or plague ; if there 
 be a cold, a dry, or a scorching season ; if any
 
 BARBAROUS PUNISHMENTS. 137 
 
 public calamity overtakes us; the universal cry 
 of the people is — ''To the lion with the 
 Christians Christian! ad leonem ! " 
 
 Parricide was punished in ;i strange manner. 
 The criminal, after being scourged, was tied or 
 sewed up in a leather bag, wit 1 1 ;i dog, a cock, a 
 viper, and an ape to keep him company, and so 
 cast into the sea. The Egyptians punished the 
 same offence by sticking the prisoner all over with 
 pointed reeds, and then throwing him upon a fire 
 of burning thorns, where he lay till he was 
 consumed. 
 
 With most nations the Lex talionis, or punish- 
 ment of retaliation — an eye for an eye, a limb for 
 a limb —has found a place in the penal system. 
 It was not, indeed, always carried out to its logical 
 conclusion, but rather became the subject of many 
 subtle distinctions. Among the Athenians, Solon 
 decreed that whoever put out the eye of a one- 
 eyed person should for so doing lose both his 
 own. But what, it was asked, should be done 
 where a one-eyed man happened to put out one 
 of his neighbour's eyes ? Should he lose his only 
 eve by way of retaliation ? If so, he would then 
 be quite blind, and would so suffer a greater 
 injury than he had caused. The law of the Jews
 
 138 LEGAL LORE. 
 
 and Egyptians compelled anyone, who without 
 lawful excuse was found with a deadly poison in 
 his possession, to himself swallow the poison. An 
 instance of a kind of lex talionis in our own 
 country is found in the reign of Edward I., when 
 incendiaries were burnt to death. Another 
 example is that, from the reign of Henry VIII. 
 to that of George IV., to strike a blow and draw 
 blood within the precincts of the King's palace, 
 entailed on the offender the loss of his right hand. 
 Here are some of the regulations prescribed by 
 the statute 33 Henry VIII., chapter 12, for the 
 infliction of the punishment :— 
 
 " viii. And for the further declaration of the solemn and 
 due circumstance of the execution appertaining and of 
 long time used and accustomed, to and for such 
 malicious strikings, by reason whereof blood is, hath 
 been, or hereafter shall be shed against the King's 
 peace. It is therefore enacted by the authority afore- 
 said, that the Sergeant or Chief Surgeon for the time 
 being, or his deputy of the King's household, his heirs 
 and successors, shall be ready at the time and place of 
 execution, as shall be appointed as is aforesaid, to sear 
 the stump when the hand is stricken off. 
 
 " ix. And the Sergeant of the Pantry shall be also then 
 and there ready to give bread to the party that shall 
 have his hand so stricken off. 
 
 " x. And the Sergeant of the Cellar shall also be then 
 and there ready with a pot of red wine to give the
 
 BARBAROUS PUNISHMENTS. 139 
 
 same party drink after his hand is so Btricken off and 
 i he stump seared. 
 
 " xi. And the Sergeant of the Ewry shall also be then 
 and there ready with cloths sufficient for the Surgeon 
 tn occupy about the same execution. 
 
 "xii. And the Yeoman of the Chandry shall also he then 
 and there, and have in readiness seared cloths sufficient 
 for the Surgeon to occupy about the same execution. 
 
 u xiii. And the Master Cook shall he also then and there 
 ready, and shall bring with him a dressing-knife, and shall 
 deliver the same knife at the place of execution to the 
 Sergeant of the Larder, who shall he also then and 
 there ready, and hold upright the dressing-knife till 
 execution be done." 
 
 " xiv. And the Sergeant of the Poultry shall he also then 
 and there ready with a cock in his hand, ready for the 
 Surgeon to wrap about the same stump, when the hand 
 shall be so stricken off. 
 
 " xv. And the Yeoman of the Scullery to be also then 
 and there ready, and prepare and make at the place of 
 execution a fire of coals, and there to make ready 
 searing-irons against the said Surgeon or his deputy 
 shall occupy the same. 
 
 "xvi. And the Sergeant or Chief Ferror shall be also 
 then and there ready, and bring with him the searing- 
 irons, and deliver the same to the same Sergeant or 
 Chief Surgeon or to his deputy when they be hot. 
 
 " xvii. And the Groom of the Salcery shall be also then 
 and there ready with vinegar and cold water, and give 
 attendance upon the said Surgeon or his deputy until 
 the same execution he done.
 
 140 LEGAL LORE. 
 
 " xviii. And the Sergeant of the Woodyard shall bring to 
 the said place of execution a block, with a betil, a staple, 
 and cords to bind the said hand upon the block while 
 execution is in doing." 
 
 Iii addition to losing his hand, the unfortunate 
 offender was imprisoned for life. It was not 
 until 1829 that this punishment was abolished, 
 after having been in existence for a period of 
 287 years. 
 
 A curious mode of punishment, intended to 
 make its victim the object of popular ridicule, was 
 in vogue in the ancient German Empire, where 
 persons who endeavoured to create tumults and 
 to disturb the public tranquility were condemned 
 to carry a dog upon their shoulders from one large 
 town to another. 
 
 The penal laws of France were every wit as 
 inhuman as our own — burning alive, breaking on 
 the wheel, hanging, beheading, and quartering 
 were common forms of punishment. Awful 
 atrocities were committed on living victims, such 
 as tearing off the flesh with red-hot pincers, 
 pouring molten lead and brimstone into the wounds, 
 and cutting out the tongue. The following is the 
 sentence passed upon Ravaillac, the assassin of 
 Henry IV., in 1610 : — He was first to be privily
 
 i;ai;i:ai:< >rs itnish.mkxts. hi 
 
 tortured and then earried to the place of execution. 
 There the flesh was to he torn with red-hot pincers 
 from his breasts, his arms and thighs, and the 
 calves of his legs; his right hand, holding tin 
 knife wherewith he committed his crime, was to be 
 scorched and burned with flaming brimstone ; on 
 the places where the flesh had been torn off a 
 mixture of melted lead, boiling oil, scalding pitch, 
 wax, and brimstone was to be poured ; after this 
 he was to be torn in pieces by four horses, and his 
 limbs and body burned to ashes and dispersed in 
 the air. His goods and chattels were confiscated ; 
 the house in which he was born was pulled down ; 
 his father and mother were banished, and his other 
 relatives commanded to change the name of 
 Ravaillac for some other. This sentence was not, 
 surely, a vindication of outraged justice, but rather 
 a purile and barbarous legal revenge. 
 
 To return to the laws of our own country. 
 Multilation of one sort or another was long a 
 favourite mode of punishment ; pulling out the 
 tongue for slander, cutting off the nose for adultery, 
 emasculation for counterfeiting money, and so on. 
 In Foxe's " Book of Martyrs" there is an account 
 of a miracle which was worked on the person of a 
 mutilated criminal. A Bedfordshire man was eon-
 
 142 LEGAL LORE. 
 
 victed of theft, and for his crime his eyes were 
 pulled out and other abominable mutilations were 
 inflicted on him. The sufferer repaired to the 
 shrine of St. Thomas at Canterbury, where after 
 devout and steadfast prayer the parts he had lost 
 were, so we are told, miraculously restored. 
 Anyone who fought with weapons in a church had 
 an ear cut off, or if he had already lost both his 
 ears was branded in the cheek with the letter F. 
 
 By an Act passed in the reign of Queen 
 Elizabeth, the punishment for forgery was that 
 the offender should stand in the pillory and have 
 his ears cut off by the common hangman, his 
 nostrils slit up and seared, and then suffer 
 imprisonment for life. In 1731 Joseph Cook, 
 aged 70 years, underwent this punishment, the 
 mutilation taking place while he stood in the 
 pillory at Charing Cross. 
 
 The Coventry Act (22-23 Charles II., chapter 
 1.) was passed in consequence of Sir John Coventry 
 having been assaulted in the street and his 
 nose slit, out of revenge as was supposed. It 
 enacted that if any person should of malice, 
 aforethought, and by lying in wait, cut out or 
 disable the tongue, put out an eye, slit the nose, 
 or cut off or disable any limb or member of any
 
 UARIiAHors ITNISH.M I'.NTS. 1 I:; 
 
 other person, with intent to main or bo disfigure 
 him, such person, his councillors, aiders, and 
 al»et tors, should be guilty of felony without benefit 
 of clergy, which implied the punishment of death. 
 This Act was not repealed until L 828, and resulted 
 in at least one curious ease. In 1772, one Coke 
 and a labourer named Woodburn were indicted 
 under the Act — Coke for hiring and abetting 
 Woodburn, and Woodburn for the actual offence 
 of slitting the nose of one Crispe, who was Coke's 
 brother-in-law. The intention of the accused was 
 to murder Crispe, and they left him for dead, 
 having terribly hacked and disfigured him with a 
 hedge-bill, but he recovered. An attempt to 
 murder was not then a felony, but under the 
 Coventry Act to disfigure with an intent to 
 disfigure was ; and the accused were indicted for 
 the latter offence. Coke, in the course of his 
 defence, raised the point that the attack on Crispe 
 was made with intent to murder him and not with 
 intent to disfigure, therefore, he contended, the 
 offence was not within the statute under which he 
 was indicted. But the court held that if a man 
 attacked another intending to murder him, with 
 such an instrument as a hedge-bill, which could 
 not but endanger a disfiguring of the victim, and
 
 144 LEGAL LORE. 
 
 in such attack happened not to kill but only to 
 disfigure, he might be indicted for disfiguring. 
 The jury found the prisoners guilty, and they 
 were condemned and duly executed. 
 
 The laws for the protection of trade decreed 
 many cruel punishments. Thus, in the reign of 
 Elizabeth, an Act passed for the encouragement of 
 the woollen industry prescribed that the penalty 
 for taking live sheep out of the country should be 
 forfeiture of goods, imprisonment for a year, and 
 that at the end of the year the left hand of the 
 prisoner should be cut off in a public market, and 
 be there nailed up in the most public place. A 
 second offence was punishable with death. By 
 statute 21 James 1, chapter 19, anyone unfortunate 
 enough to become a bankrupt was nailed by one 
 ear to the pillory for two hours, and then had the 
 ear cut off. Under the Romans a bankrupt was 
 treated still more unmercifully, for at the option 
 of his creditors he was either cut to pieces or sold 
 to foreigners beyond the Tiber. 
 
 A longstanding disgrace to the intelligence and 
 humanity of our countrymen was the fact that in 
 former times burning alive was the inevitable fate 
 of poor wretches convicted of witchcraft, the penal 
 laws against which were not repeated until 1736.
 
 BARBAROUS PUNISHMENTS. 1 15 
 
 So late as 1712, five so called witches were hung 
 at Northampton, and in 1716 Mrs Hicks, and her 
 daughter, aued nine, were condemned to death at 
 Huntingdon for selling their souls to the devil. 
 Even children of tender years were not spared, 
 but with their elders alike fell victims to our law's 
 barbarity ; there are many recorded instances of 
 children under ten years of age being executed. 
 In Scotland the last execution for witchcraft took 
 place in 1722. 
 
 Space will not permit any attempt to run through 
 the whole gamut of legal iniquities ; at most we 
 can only attempt a very incomplete catalogue of 
 the inhumanities at one time or another incident 
 to our penal codes, and with a final horror we 
 must bring this article to an end. The punish- 
 ment with which we are now about to deal, that 
 of pressing to death, peine Jorte et dure as it was 
 called, is perhaps the most noteable example of 
 the former barbarity of our law, since it was 
 inflicted before trial on innocent and guilty alike, 
 who refused to plead " Guilty" or " Not Guilty'' 
 to an indictment for felony. What this punish- 
 ment was, which was first instituted in 1406, can 
 best be told by giving the form of the judgment 
 
 of the court against the person who refused to 
 
 10
 
 146 LEGAL LORE. 
 
 plead : — That the prisoner shall be remanded to 
 the place from whence he came, and put in some 
 low, dark room, and that he shall lie without 
 any litter or other thing under him, and without 
 any manner of covering ; that one arm shall be 
 drawn to one quarter of the room with a cord and 
 the other to another, and that his feet shall be 
 used in the same manner ; and that as many 
 weights shall be laid upon him as he can bear, and 
 more ; that he shall have three morsels of barley 
 bread a day, and that he shall have the water next 
 the prison, so that it be not current ; and that he 
 shall not eat the same day on which he drinks, 
 nor drink the same day on which he eats ; and 
 that he shall continue so till he die or answer. 
 
 P eh he forte, et dure was not abolished till 1772, 
 and was frequently undergone by accused persons 
 in order to preserve their estates from being 
 forfeited to the Crown, which would have been 
 the case if they had stood their trial and been 
 found guilty. The year 1741 is probably the last 
 date on which the punishment was inflicted. In 
 1721, two men, Thomas Cross and Thomas Spigot, 
 were ordered to be pressed to death at the Old 
 Bailey. Cross gave in on seeing the preparations 
 made for his torture, but Spigot was made of
 
 liAIMJAHOUS PUNISHMENTS. 147 
 
 stonier stuff. In the "Annals of Newgate" is a 
 description of his sufferings: — "The chaplain 
 found him lying in the vault upon the bare 
 ground with 350 pounds weight upon his breast, 
 and then prayed by him, and at several times 
 asked him why he would hazard his soul by such 
 obstinate kind of self-murder. But all the answer 
 that he made was — 'Pray for me, pray for me!' 
 He sometimes lay silent under the pressure, as if 
 insensible to pain, and then again would fetch his 
 breath very quick and short. Several times he 
 complained that they had laid a cruel weight upon 
 his face, though it was covered with nothing but 
 a thin cloth, which was afterwards removed and 
 laid more light and hollow ; yet he still complained 
 of the prodigious weight upon his face, which 
 might be caused by the blood being forced up 
 thither, and pressing the veins as violently as if 
 the force had been externally upon his face. 
 When he had remained for half-an-hour under 
 this load, and 50 pounds weight more laid on, 
 being in all 400 pounds, he told those who 
 attended him he would plead. The weights were 
 at once taken off, the cords cut asunder ; he was 
 raised by two men, some brandy w 7 as put into his 
 mouth to revive him, and he was carried to take
 
 148 LEGAL LORE. 
 
 his trial." In 1735, a man, who pretended to be 
 dumb at the Sussex Assizes, was sent to Horsham 
 Gaol to be pressed to death unless he would plead. 
 He endured in agony a weight of 350 pounds, and 
 then the executioner, who weighed over 16 stones, 
 laid himself upon the board upon which the 
 weights were placed, and killed the wretched 
 man instantly.
 
 trials of Hnimals. 
 
 By Thomas Frost. 
 
 ONE of the most singular features of the 
 jurisprudence of the middle ages, and one 
 which was retained in the French code down to 
 nearly the middle of the last century, was the 
 indictment of domestic animals for injuries inflicted 
 on mankind. The records of the criminal tribunals 
 of France disclose ninety-two such judicial pro- 
 cesses between 1120 and 1741, when the last of 
 these grotesque trials took place in Poitou. The 
 practice seems to have been based on the Mosaic 
 law, it being there ordered that, " if an ox gore a 
 man or a woman that they die, then the ox shall 
 be stoned, and his flesh shall not be eaten." 
 (Exodus, c. xxi., v. 28.) Oxen and pigs were the 
 animals that most frequently were the subjects of 
 these strange proceedings, the indictment against 
 the former being for goring persons, while the 
 latter suffered for killing and sometimes devouring 
 very young children. 
 
 The earliest instance of which any particulars
 
 150 LEGAL LORE. 
 
 can be gathered occurred in 1314, when, according 
 to M. Carlier, who relates the story in his history 
 of the Duchy of Valois, a bull escaped from a 
 farm-yard in the village of Moisy, and gored a 
 man so severely that death ensued. The Count 
 of Valois, being informed of the fatility, directed 
 that the bull should be captured, and formally 
 prosecuted for causing the man's death. This was 
 done, and evidence was given by persons who had 
 seen the man attacked and killed. The bull was 
 thereupon sentenced to suffer death, which was 
 inflicted by strangulation, after which the carcase 
 was suspended from a tree by the hind legs. But 
 the affair did not end thus, for the sentence was 
 appealed against, probably by the owner of the 
 bull, on the ground that the retainers of the 
 Count of Valois had no legal authority to execute 
 the sentence. This plea was debated at great 
 length, and the provincial parliament eventually 
 decided that, though the sentence was a just one, 
 the Count of Valois had no justiciary authority 
 in the district of Moisy. 
 
 Next in the order of time comes the trial at 
 Falaise of a sow which had torn the face and arm 
 of a child, from the effects of which injuries it 
 died. The sow was condemned to be mutilated
 
 TRIALS OF ANIMALS. 151 
 
 in the head and one fore leg, and afterwards to be 
 
 strangled, which sentence was executed in the 
 pnUir square of* the town. This was in I :!86. 
 Three years later, a horse was condemned to 
 death at Dijon for having killed a man. In 1403, 
 Sin ion dr Baudeniont, lieutenant of Meulan ; Jean, 
 lord of Maintcnon; and the bailiff of Mantes and 
 Meulan, signed an attestation of the expenses 
 incurred in the prosecution and execution of a 
 sow that had killed and partially eaten a child. 
 The following is a copy of the document, to 
 which it may be added that the story of the trial 
 and execution may be found in the " Curiosites 
 Judiciaires et Historiques clu Moyen Age " of 
 M. Aguel : — " Item, for expenses within the gaol, 
 6 sols. Item, to the executioner, who came from 
 Paris to Meulan to put the sentence in execution, 
 by command of our Lord the Bailiff and of the 
 King's Attorney, 54 sols. Item, for the carriage 
 that conveyed her to execution, 6 sols. Item, for 
 ropes to tie and haul her up, 2 sols, 8 deniers. 
 Item, for gloves, 12 deniers; amounting in the 
 whole to 69 sols, 8 deniers." In connection with 
 the first item of this curious document, it may be 
 observed that, in a receipt delivered five years 
 later by a notary of Pont de l'Arche to the gaoler
 
 152 LEGAL LORE. 
 
 of the prison of that town, the same amount is 
 allowed for the daily food of a pig, imprisoned on 
 the charge of killing a child, as for a man in the 
 same prison. The last item, the gloves, is 
 supposed by M. Aguel to be a customary allow- 
 ance to the executioner. 
 
 In 1457, a sow and her six young pigs were 
 tried at Lavegny, on the charge of having killed 
 and partially eaten a child. The sow was con- 
 victed, and condemned to death ; but the little 
 ones were acquitted on the ground of their tender 
 years or months, the bad example of their mother, 
 and the absence of direct evidence of their having 
 partaken of the unnatural feast. In 1494, sentence 
 of death was pronounced on a pig by the Mayor 
 of Laon for having mutilated and destroyed an 
 infant in its cradle, full particulars of which case 
 were given in the " Annuaire du Departement de 
 l'Aisne " for 181*2. The act of condemnation, as 
 there given, concludes as follows : — " We, in 
 detestation and horror of this crime, and in order 
 to make an example and satisfy justice, have 
 declared, judged, sentenced, pronounced, a^nd 
 appointed that the said hog, being detained a 
 prisoner, and confined in the said abbey, shall be, 
 by the executioner, strangled and hanged on a
 
 TRIALS OF ANIMALS. 153 
 
 gibbet, near and adjoining the gallows in the 
 jurisdiction of the said monks, bring near their 
 copyhold of Avin. In witness of which we have 
 sealed this present with our seal." This document 
 was sealed with red wax, and endorsed: — " Sent- 
 ence on a hog, executed by justice, brought into 
 the copyhold of Clermont, and strangled on a 
 gibbet at Avin." 
 
 Three years later, a sow was condemned to be 
 beaten to death for having mutilated the face of a 
 child of the village of Charonne. The act of 
 condemnation in this case directed further that 
 the flesh of the sow should be ofiven to the doofs 
 of the village, and that the owner of the sow and 
 his wife should make a pilgrimage to the Church 
 of Our Lady at Pontoise, and bring on their 
 return a certificate that this injunction had been 
 duly complied with. In 1499, a bull was strangled 
 for having killed a boy in the lordship of Cauroy, 
 which belonged to the abbey of Beaufire. 
 
 Lionnois gives, in his history of Nancy, a full 
 report of the proceedings on the delivery of a 
 condemned pig to the executioner of that city in 
 1572. He mentions, among other details, that 
 the animal, secured by a cord, was led to a cross 
 near the cemetery ; that from the most remote
 
 154 LEGAL LORE. 
 
 period the justice of the lord, the abbot of Moyen 
 Moutier, was accustomed to deliver to the provost, 
 or marshal of St. Diez, near to this cross, all 
 condemned criminals, that execution might ensue ; 
 and that, the said pig being a brute beast, the 
 mayor and the justice held a conference at that 
 place, and left the said pig tied with a cord, 
 without prejudice to the judicial rights of the lord. 
 
 Judicial proceedings against the lower animals 
 were not confined to France, for the list of such 
 cases compiled by M. Berriat St. Prix, and 
 published in the " Memoires de la Societe des 
 Antiquaires" for 1829, mentions one tried at 
 Lausanne in 1364, another at the same town in 
 1451, a third at Basle in 1474, another at Lau- 
 sanne in 1479, and a fifth at the same place in 
 1554. Concerning the first of these Swiss trials, 
 Ruchat states, in his history of the Protestant 
 reformation in Switzerland, that the victim was a 
 pig that had killed a child in the village of 
 Chattens, situated among the Jorat hills. It was 
 cited to appear in the Bishop's Court at Lau- 
 sanne, convicted of murder, and sentenced to 
 death — the executioner being a pork butcher. 
 
 The Basle case was a very singular one. A 
 farm-yard cock was tried on the absurd charge of
 
 TRIALS OF ANIMALS. 155 
 
 having laid an egg. It was contended in supporl 
 of the prosecution that eggs laid by cocks wen- of 
 inestimable ?alue for use in certain magical 
 preparations ; that a sorcerer would rather possess 
 a cock's egg than the philosopher's stone; and 
 thai Satan employed witches to hatch such eggs, 
 from which proceeded winged serpents most 
 dangerous to mankind. On behalf of the gallina- 
 ceous prisoner, the facts of the case were admitted, 
 but his advocate submitted that no evil animus 
 had been proved against his client, and that no 
 injury to man or beast had resulted. Besides, 
 the laying of the egg was an involuntary act, and 
 as such not punishable by law. If it was intended 
 to impute the crime of sorcery to his client, he 
 was entitled to an acquittal ; for there was no 
 instance on record of Satan having made a compact 
 with one of the brute creation. In reply, the 
 public prosecutor stated that, though the Evil 
 One did not make compacts with brutes, he some- 
 times entered into them ; and though the swine 
 possessed by devils, as related by the Evangelists, 
 were involuntary agents, yet they, nevertheless, 
 were punished by being caused to run down a 
 steep decline into the Lake of Galilee, where they 
 were drowned. The poor cock was convicted, and
 
 156 LEGAL LORE. 
 
 condemned to death, not as a cock, however, but 
 as a sorcerer, or perhaps a devil, in the form of a 
 cock, on which finding" it was, with the egg 
 attributed to it, burned at a stake, with all the 
 form and solemnity of a judicial execution. 
 
 As the lower animals were amenable to the law 
 in Switzerland in those dark ages, so, in certain 
 circumstances, they could be put into the witness 
 box. If a house was broken into between sunset 
 and sunrise, and the occupier killed the intruder, 
 the act was regarded as justifiable homicide. 
 Bat it was thought right to provide by law 
 against the case of a man, living alone, who 
 might invite a person whom he wished to kill to 
 spend the evening with him, and having slain him, 
 might assert that he committed the act in self- 
 defence, or to protect his property, the dead man 
 having been a burglar. Therefore, when a man 
 was killed in such circumstances, the occupier of 
 the house was required to produce some domestic 
 animal that was an inmate of the house, and had 
 witnessed the tragedy, and to declare his innocence 
 on oath in the presence of such animal. If the 
 brute witness did not contradict him, he was 
 acquitted ; the law taking it for granted that God, 
 rather than allow a murderer to go unpunished,
 
 TRIALS OF ANIMALS. 157 
 
 would intervene by causing a miraculous mani- 
 festation l>y the mouth of a dumb witness. 
 
 Even more strange than the trials of oxen, pigs, 
 etc., \'nv (i (fences against mankind, were the legal 
 proceedings often taken in the middle ages against 
 noxious insects and the smaller quadrupeds, such 
 as rats. The " Memoires de la Societe Royale 
 Academique de Savoie" contain a very curious 
 account of the proceedings instituted in 1445 and 
 1487 against certain beetles that had committed 
 great ravages in the vineyards of St. Julien. 
 Advocates were named on behalf of the vine- 
 growers and the beetles respectively ; but, by a 
 singular coincidence, the insects disappeared when 
 cited to answer for the mischief they had done, 
 and the proceedings were in consequence 
 abandoned. That was in 1445. In 1487, however, 
 they re-appeared, and a complaint was thereupon 
 addressed to the vicar-general of the Bishop of 
 Maurienne, who named a judge, and also an 
 advocate to represent the beetles. Counsel 
 having been heard on both sides, the judge 
 suggested that the vine-growers should cede to 
 the defendants certain land, where they could live 
 without encroaching on the vineyards. The 
 plaintiffs agreed to this compromise, with the
 
 158 LEGAL LORE. 
 
 proviso that, in default of the defendants accepting 
 the terms offered them, the judge would order 
 that the vineyards should be respected by the 
 beetles under certain penalties. The advocate for 
 the beetles demanded time for consideration, and 
 on the resumption of the proceedings stated that 
 he could not accept, on behalf of his clients, the 
 suggestion of the court, as the land proposed to 
 be given up to them was barren, and afforded 
 nothing upon which they could subsist. The 
 court then appointed assessors to survey the land 
 in question, and on their report that it was well 
 wooded and provided with herbage, the conveyance 
 was ordered to be engrossed in due form and 
 executed. The matter was then regarded by the 
 plaintiffs as settled ; but the beetles discovered, 
 or their advocate discovered for them, that a 
 quarry of an ochreous earth, used as a pigment, 
 had formerly been worked on the land conveyed 
 to the insects, and though it had long since been 
 worked out, some person possessed an ancient 
 right of way to it, the exercise of which would be 
 extremely prejudicial to them. Consequently, 
 the agreement was held to be vitiated, and the 
 legal proceedings had to be recommenced de novo. 
 How they eventually terminated cannot be told,
 
 TRIALS OF ANIMALS. 159 
 
 owing to the mutilation of the documents relating 
 
 to the proceedings subsequent to 1487. 
 
 Nearly a century later, legal proceedings were 
 commenced by the inhabitants of a village in the 
 diocese of Autun against the rats by which their 
 houses and barns were infested ; the trial being 
 famous in the annals of French jurisprudence as 
 that in which Chassanee, the celebrated juris- 
 consult, first achieved distinction. The rats not 
 appearing on the first citation, Chassanee, who 
 was retained for the defence, argued that the 
 summons was of too local a character, and that, 
 as all the rats in the diocese of Autun were inter- 
 ested in the case, they should be summoned 
 throughout the diocese. This plea being admitted, 
 the curd of every parish in the diocese was 
 instructed to summon all the rats within its 
 limits to attend on a day named in the summons. 
 The day having arrived, and the rats failing to 
 appear, Chassanee said that, as all his clients were 
 summoned, including old and young, sick and 
 healthy, great preparations had to be made, and 
 certain necessary arrangements effected, and he 
 had to ask, therefore, for an extension of time. 
 This also being granted, another da} T was appoint- 
 ed, but again not a single rat put in an appearance.
 
 160 LEGAL LORE. 
 
 Chassanee then made an objection to the legality 
 of the summons. A summons from that court, 
 he said, implied full protection to the parties 
 summoned, both on their way to it and on their 
 return to their homes ; and his clients, the rats, 
 though most anxious to appear in obedience to 
 the court, did not dare to leave their homes to 
 come to Autun, on account of the number of evil- 
 disposed cats kept by the plaintiffs. If the latter 
 would enter into bonds, under heavy pecuniary 
 penalties, that their cats should not molest his 
 clients, the summons would be immediately 
 obeyed. The court acknowledged the validity of 
 this plea, but the plaintiffs declined to be bound 
 for the good behaviour of their cats. The further 
 hearing of the case was, therefore, adjourned sine 
 die, and thus Chassanee gained his cause. Full 
 particulars of the proceedings are given in a Latin 
 work, written by him, and published in 1588.
 
 devices of the Sixteenth Centura debtors. 
 
 By James C. Macdonald, f.s.a., Scot. 
 
 IN the year 1531, a certain John Scott, 
 residenter in the good town of Edinburgh, 
 was financially in a condition of chronic decrepi- 
 tude. His household goods were rapidly going 
 to the hammer, and one creditor, bolder than 
 his fellows, decided to attack the impecunious 
 personality of the common debtor. Writs from 
 court and messengers of the law were severally 
 set in motion ; and on the earliest possible day 
 one of those myrmidons served upon the debtor 
 personally, a writ bearing the terrible title of 
 "Letters of IV Forms." The "coinless" John 
 was therein warned that if he failed forthwith to 
 pay or satisfy the lawful debt, for which decreet 
 has gone out, he would (unless he went to prison 
 in a peaceful way) be declared a rebel against the 
 King's Majesty. 
 Now John reasoned with himself that payment 
 
 he could not make ; outlawry he rather feared ; 
 
 11
 
 162 LEGAL LORE. 
 
 and squalor carceris he could not endure. What 
 was to be done ? He had heard of the horns of 
 of the Hebrew altars : how 7 that personal safety 
 resulted from any manual attachment thereto. 
 Was there some such boon in bonny Scotland ? 
 There was Holy rood, with its sanctified abbey. 
 It was near ; any port in such a storm. Down 
 the Canongate, and straight to the sanctuary he 
 ran — all to the manifest loss, injury, and damage 
 of his creditors who followed, having got w T ind of 
 this unique hegira from the red-nosed city 
 guard. In vain the creditors pleaded ; equally 
 in vain were their threats. The canny Scot 
 was warranted safe and skaithless against "all 
 mortal." 
 
 Annoyed at his debtor's immunity from arrest, 
 chagrined that any money John possessed had 
 now been further dissipated in the Abbey ad- 
 mission dues to its protection giving portals — each 
 creditor turned sadly to his " buiks of Compts " 
 and superscribed over against John Scott's name 
 the expressive legend "bad debt." And this 
 John Scott became the forerunner, de facto, 
 of a long line of " distressed " persons. Nay 
 more, he secured an immortality as lasting as 
 that of the sovereign whose solemnly sounding
 
 SIXTEENTH CENTURY DEBTORS. 1G3 
 
 "Letters <>f I V Forms," lie spurned and left 
 unanswered. 
 
 A generation later, and another new way of 
 paying old debts is placed on record. To balance 
 International honours it is of Anglican origin. 
 Scoggan, the jester of the Elizabethan court, falls 
 into financial distress. He borrows £500 from 
 the Queen — mirabile dictu. Only a fool would 
 have tried such a tiling. It was put down as a 
 " short loan," but it soon became clear to the 
 royal lender that its longevity would outlast her 
 reign. To all demands the clownish borrower 
 smilingly cried "long live the queen," until at 
 last his existence as court fool was in danger of 
 being ended. But he would rather die than be 
 evicted ; and die he did. He became, theatrically 
 speaking, defunct. 
 
 The late Scogoan was accordingly borne, to 
 solemn music, past the royal garden ; and the 
 queen, seeing the mournful show — and knowing 
 nought of its hollowness — asked whose it was. 
 " Scoggan, Your Majesty," was the reply. 
 " Poor fellow," she exclaimed, " the £500 he 
 owed me I now freely forgive." Whereupon the 
 "defunct" sat up and declared that the royal 
 generosity had given him a new lease of life.
 
 164 LEGAL LORE. 
 
 'Thou rogue," said the queen, "thou art more 
 rogue than fool. Thou hast improved upon the 
 plan of that John Scott, who, in the reign of my 
 late cousin of Scotland, as Sir James Melvil tells 
 me, got rid of the oldest debt and the longest 
 loan."
 
 laws "Relating to the iSipsies. 
 
 By William E. A. Axon, f.r.s.l. 
 
 EARLY in the fifteenth century the gipsies 
 made their appearance in Europe, and as 
 strangers were not favourably regarded in those 
 days the advent of these dark-skinned people, 
 speaking a language of their own, dressing in a 
 picturesque, but uncommon costume, and having 
 their own rulers, and their own code of morals, and 
 owning no allegiance to the laws of the land in 
 which they sojourned, naturally attracted atten- 
 tion. At first some credence was given to their 
 high-sounding pretensions, and the dukes, counts, 
 and lords of Lesser Egypt received safe conducts 
 and protection under the idea that they were 
 engaged in religious pilgrimages. But the seal of 
 the Emperor Sigismund would not protect them 
 when the term of their pretended pilgrimage had 
 expired, nor would the manners and customs of 
 the gipsies substantiate any special claim to 
 sanctity or religious fervour. Even the ages 
 when the divorce was most marked between
 
 166 LEGAL LORE. 
 
 religion and morals would be staggered by the 
 thefts, and worse outrages that were laid to their 
 charge. Sigismund's safe conducts are said to 
 have been given not as Emperor, but as King of 
 Hungary, and some of the gipsies were early 
 employed as ironworkers in the realm of St. 
 Stephen. In 1496 King Ladislaus gave a 
 charter of protection to Thomas Polgar and his 
 twenty five tents of gipsies because they had 
 made musket bullets and other military stores for 
 Bishop Sigismund at Funfkirchen, but whatever 
 consideration may have been shewn to them in 
 the beginning, they speedily became objects of 
 suspicion and dislike. There is not a country in 
 Europe which has not legislated against them 
 or endeavoured to exile them by administrative 
 acts. Their expulsion from Spain was decreed in 
 1492, from France in 1562, and from various 
 Italian states about the same time. Denmark, 
 Sweden, and the Netherlands have also pro- 
 nounced against them. The Diet of Augsburg 
 in 1500, ordered their expulsion from Germany 
 on the ground that they were spies of Turkey 
 seeking to betray the Christians. This edict, 
 though several times repeated, was non-effective. 
 In Hungary and Transylvania the authorities,
 
 LAWS RELATING TO THE GIPSIES. 107 
 
 hopeless of getting rid of the troublesome 
 Immigrants, t<>ok strong incisures to 1 > i ■ i 1 1 *_r them 
 into line with the rest of the population. They 
 were prohibited from using the Romany tongue, 
 from retaining their gipsy surnames, from 
 wandering about the country, from eating carrion, 
 and from dealing iii horses. Those fit for military 
 service were to be taken into the army, and the 
 rest were to live and dress and deport themselves 
 in the same manner as the peasantry of the 
 country. These regulations were not wholly 
 effective, but the result of the efforts put forward 
 by Maria Theresa, and her successors may be seen 
 in the sedentary gipsies of the Austro-Hungarian 
 Empire. At times they have been subjected 
 to fierce persecution. In 1782, a dreadful 
 accusation was brought against the Hungarian 
 Romanis, when more than a hundred of them 
 were accused of murder and cannibalism. The 
 gang were said to have lived by highway robbery 
 and murder, and to have cooked and eaten the 
 bodies of their victims. At Frauenmark four 
 women were beheaded, six men were hanged, 
 two were broken on the wheel, and one was 
 quartered alive. Altogether forty-five were 
 executed and many more were imprisoned.
 
 168 LEGAL LORE. 
 
 How much of this was suspicion substantiated by 
 torture ? 
 
 The gipsies came frequently in contact with 
 the myrmidons of the law. "As soon as the 
 officer seizes or forces away the culprit,'' says 
 Grellmann, " he is surrounded by a swarm of his 
 comrades who take unspeakable pains to procure 
 the release of the prisoner. . . . When it 
 comes to the infliction of punishment, and the 
 malefactor receives a good number of lashes well 
 laid on, in the public market place, a universal 
 lamentation commences among the vile crew ; 
 each stretches his throat to cry over the agony 
 his dear associate is constrained to suffer. This 
 is oftener the fate of the women than of the men ; 
 for as the maintenance of the family depends 
 most upon them, they more frequently go out for 
 plunder." It is a noteworthy fact that Grellmann 
 writing in 1783, has not a word of condemnation 
 of the barbarous practice of flogging women. 
 
 In England as elsewhere the earliest of these 
 romantic people were welcomed. In 1519, the 
 Earl of Surrey entertained " Gypsions " at 
 Tendring Hall, Suffolk, and gave them a safe- 
 conduct. Still earlier in 1505, Anthony Gaginus, 
 Earl of Little Egypt, had a letter of recommen-
 
 LAWS KKLATINCi TO TIIK (ilPSIES. 169 
 
 elation from James IV. of Scotland to the Kin*/ 
 of Denmark. .lames V. bestowed a charter upon 
 James Faa, Lord and Karl of Little Egypt, by 
 which he was privileged to execute justice upon 
 his followers, much in the same way as the 
 great barons were authorised to deal with their 
 vassals. But they soon fell out of favour. In 
 England, in the twenty-second year of Henry 
 VIII. an act of parliament was passed which 
 sets forth that there are certain outlandish 
 people, who not profess any craft, or trade, 
 whereby to maintain themselves, but go about in 
 great numbers from place to place, using craft 
 and subtlety to impose on people, making them 
 believe that they understood the art of foretelling 
 to men and women their good or ill fortune, by 
 palmistry, whereby they frequently defraud 
 people of their money, likewise are guilty of 
 thefts and highway robberies ; it is ordered that 
 the said vagrants, commonly called Egyptians, in 
 case they remain sixteen days in the kingdom, 
 shall forfeit their o-oods and chattels to the kinsr 
 and be further liable to imprisonment. In 1537, 
 Cromwell writes to the Lord President of the 
 Marches of Wales, that the " Gipcyans " had 
 promised to leave the kingdom in return for a
 
 170 LEGAL LORE. 
 
 general pardon for their previous offences, and 
 exhorts the authorities to see that their de- 
 portation is effected. Many were sent to 
 Norway, but the effort to extirpate them from 
 the kingdom entirely failed.* By an act of 1554, 
 a penalty of £40 was to be inflicted upon any one 
 knowingly importing them. Those gipsies, 
 following 1 "their old accustomed devlishe and 
 noughty practises," were to be treated as felons, 
 but exception was made in favour of such as placed 
 themselves in the service of some "honest and 
 able inhabitant." Many were executed, but the 
 remnant survived and managed to hold a yearly 
 meeting at the Peak Cavern or Kelbrook, near 
 Blackheath. Still sterner was the law passed in 
 1562-3, which made it felony for any one born 
 within the kingdom to join the fellowship of 
 vagabonds calling themselves Egyptians. The 
 previous acts had referred to the gipsies as an 
 outlandish people, but now the native born were 
 brought equally within the meshes of this 
 sanguinary law. "Throughout the reign of 
 Elizabeth," as Borrow remarks, "there was a 
 
 * The Lord Chief Justice, John Popham, who was born in 1531, is 
 said to have been stolen when a child by the gipsies. They disfigured 
 him and placed on his arm a cabalistic mark. Apparently it was a 
 case of tattooing. But the story is discredited.
 
 LAWS RELATING TO THE GIPSIES. 171 
 
 terrible persecution of the gipsy race; far less, 
 however, on account of the crimes which were 
 actually committed, than from a suspicion which 
 was entertained that they harboured amidst their 
 companies priests and emissaries of Rome." The 
 harrying of the missionary priests was in part 
 dictated by the spirit of religious persecution, 
 but in a still greater degree by the conviction 
 that they were political emissaries, aiming at the 
 subversion of the kingdom. The priests on the 
 English mission had often to disguise themselves, 
 and at times may have assumed the garb of 
 wandering beggars, but they are not likely to 
 have consorted with the Romans, whose language 
 would be strange to them, and whose heathenish 
 indifference to all dogmas, rites, and ceremonies, 
 would be specially distasteful to zealous Catholics. 
 After " the spacious times " of great Elizabeth, 
 the gipsies had a rest from special oppression, 
 though they were of course still in jeopardy from 
 the harsh laws as to vagrancy and those minor 
 crimes, that are their characteristic failings. 
 Romany girls were flogged for filching and 
 fortune-telling, and Romany men were hanged 
 for horse-stealing. They were looked upon with 
 suspicion, and it was easy enough to raise
 
 172 LEGAL LORE. 
 
 prejudice against them. This was shewn in 
 the notorious case of Elizabeth Canning. She 
 was a girl of eighteen, employed as a domestic 
 servant at Aldermanbury, and in 1753, dis- 
 appeared for four weeks. On her return she 
 asserted that she had been abducted and detained 
 in a loft by gipsies, who gave her only bread and 
 water to eat. Their aim she declared was to 
 induce her to adopt an immoral life. Mrs. Wells, 
 Mary Squires, George Squires, Virtue Hall, 
 Fortune and Judith Natus, were arrested, and 
 Wells and Squires were committed for trial. The 
 proceedings, partly before Henry Fielding the 
 novelist, were conducted with a laxity that seems 
 now to be almost inconceivable. At the Old Bailey 
 trial there was a remarkable conflict of evidence, 
 but in the end Mrs. Wells was condemned to be 
 burned in the hand, and Mary Squires to be 
 hanged. Sir Christopher Gascoyne then Lord 
 Mayor, was satisfied that there had been a 
 miscarriage of justice and made enquiries, a 
 respite was obtained and finally the law officers 
 of the crown recommended the grant of a free 
 pardon to Squires. The natural sequel was the 
 prosecution of Canning for perjury. Fortune 
 and Judith Natus now swore that they had slept
 
 LAWS RELATING TO THE GIPSIES. 173 
 
 each uio-ht in the loft where Canning declared 
 she had been imprisoned, but it was very 
 natural that people should ask why they had 
 not given this important evidence at the previous 
 trial. Mary Squires, alibi was sworn to by 
 thirty-eight witnesses who had seen her in 
 Dorsetshire, and was, to some extent, invalidated 
 by twenty-seven who swore that she was in 
 Middlesex at the time. As she was too remark- 
 able for her ugliness to be easily mistaken, there 
 must have been some very "hard swearing." 
 Canning was convicted of perjury and transported, 
 but the secret of her absence from New Year's 
 Day, 1553, until the 29th of January was never 
 divulged. The case excited great interest, and 
 the controversy divided the whole of the busy, 
 idle "town," into " Canningites " and " Gipsyites." 
 The Tudor law (22 Henry VIII., c. 10) was 
 repealed as " of excessive severity" in 1783 (23 
 George III., c. 51). The later legislation provides 
 that persons wandering in the habit and form of 
 Egyptians, and pretending to palmistry and 
 fortune-telling-, are to be deemed rogues and 
 vagabonds (17 Geo. II., c. 5., 3 Geo. IV., c. xl.), 
 and is liable to three months' imprisonment (5 
 Geo. IV., c. lxxxiii.), and encamping on a turnpike
 
 174 LEGAL LORE. 
 
 road involved a penalty of forty shillings (3 Geo. 
 IV., c. cxxvi., 5 and 6 William IV., c. 50). Some 
 of the older enactments remained on the statute 
 book, though not enforced, until the passing of 
 the statute law Revision Act of 18G3, by which 
 many obsolete parliamentary enactments were 
 swept away. 
 
 By the famous Poynings Act, English laws 
 were declared applicable to Ireland. The gipsies 
 were never common in the Isle of Saints, but by 
 a special act they were, in 1634, declared to be 
 rogues and vagabonds (10 and 11 Car. I., c. 4). 
 
 There are acts of the Scottish Parliament as 
 early as 1449, directed against " sorners, overliers, 
 and masterful beggars with horse, hounds, or other 
 goods," and that this would well describe the 
 earlier gangs of gipsies is undeniable, but whether 
 they were Romanis or Scots is a matter of 
 controversy not easily decided in the absence of 
 more definite evidence. A tradition of the 
 Maclellans of Bombie says that the crest of the 
 family was assumed on the slaying of the chief of a 
 band of saracens or gipsies from Ireland. The 
 conqueror received the barony of Bombie from 
 the king as a reward. Having thus restored the 
 fortunes of the family, the young laird of Bombie
 
 LAWS RELATING TO THE GIPSIES. L75 
 
 took for his (-rest a moor's head with the motto 
 "Think on." If this legend was evidence, which 
 it is not, there were gipsy marauders in Galloway 
 in the middle of the fifteenth century. But in 
 1505, we have the entry of a gift by the King of 
 Scotland of seven pounds to the " Egiptianis." 
 In the same year there is a letter already named, 
 in which "Anthonius Gagino," or Gawino, is 
 recommended to the King of Denmark. In 
 1527, Eken Jacks, master of a band of gipsies, 
 was made answerable for a robbery from a house at 
 Aberdeen. In 1539, a similar charge was 
 brought, but not proved, against certain friends 
 and servants to "Earl George, callet of Egipt." 
 This chieftain was one of the celebrated Faa 
 tribe. In 1540, George and John Faa were 
 ordered by the bailies of Aberdeen to remove their 
 company and goods from the town. This is the 
 first action of a Scottish authority against the 
 gipsies as gipsies. But, by a charter dated four 
 • lavs before the municipal decree, James V. 
 confirms to "our lovit Johnne Faw, lord and erle 
 of Little Egipt," full power to execute justice over 
 his tribe, some of whom had rebelled and forsaken 
 his jurisdiction. In 1541, an act of the Lords of 
 Council and Session decreed the banishment of
 
 176 LEGAL LORE. 
 
 the gipsies from the realm within thirty daj^s, 
 because of " the gret theftes and scathis " done by 
 them. Some of them passed over the border, but 
 not for long, and in 1553 the Faas again had a 
 charter upholding their rights of lordship against 
 Lalow and other rebels of their company. And 
 in the next year their is a pardon to four Faas for 
 the "slachter of umquhile Ninian Smaill." 
 
 The gipsies had the favour of the Roslyn 
 family, and it is said that Sir William Sinclair 
 rescued " ane Egiptian " from the gibbet in the 
 Burgh Muir, "ready to be strangled," and that in 
 gratitude the tribe used to go to Roslyn yearly 
 and act several plays in May and June. In 
 1573, and again in 1576, the gipsies were ordered 
 to leave the realm, but the decree w T as never put 
 in force. When Lady Foulis was tried in 1590, 
 one charge was that she had sent a servant to the 
 gipsies for advice as to poison to be administered 
 to "the young laird of Fowles and the young Lady 
 Balnagoune." When James VI. held a High 
 Court of Justicary at Holyrood in 1587, for the 
 reformation of enormities, the offenders to be dealt 
 with included "the wicked and counterfeit thieves 
 and limmers calling themselves Egyptians." 
 
 There were several enactments of the Scottish
 
 LAWS RELATING TO THE GIPSIES. 177 
 
 Parliament in 1574, 157*.), L592, and L597. 
 These were all aimed at the nomadic habits of the 
 race, but the settled gipsies were Left unmolested. 
 ''Strong beggars and their children" were to be 
 employed in common work for their whole lit". 
 and it is said that salt masters and coal masters 
 thus made serfs of many. In 1(30:3, there was a 
 special " Act anent the Egiptians," which declared 
 it " lesome " for anyone to put to death any gipsy, 
 man, woman, or child, remaining in the country 
 after a certain date. Moses Faa appealed against 
 it as a loyal subject, and found a security in 
 David, Earl of Crawford. This was in 1609, but 
 in 1611 four of the Faas were tried at Edinburgh 
 under the acts against the gipsies, and were con- 
 victed and executed on the same day. Constables 
 and justices of the peace were exhorted to put the 
 law in force. Four gipsies, who could not find 
 securities that they would leave the kingdom, 
 were sentenced to be hanged in 1616, but were 
 reprieved and probably released. In 1624, eight 
 were executed on the Burgh Muir, but the 
 women and children were simply exiled. In 
 1636, a number were condemned at Haddington, 
 the men to be hanged and the women to be 
 
 drowned. Women who had children were to be 
 
 12
 
 178 LEGAL LORE. 
 
 scourged and branded in the face. In the latter 
 half of the seventeenth century many were sent 
 to the plantations in Virginia, Barbadoes, and 
 Jamaica. 
 
 Generally, however, the stringent laws were 
 not stringently administered, and from fear or 
 influence of some kind the gipsies often escaped. 
 
 The British gipsies in our own day find that 
 whilst the law is dealt out to them with perfect 
 impartiality, the social pressure is decidedly 
 against them. At such watering-places as 
 Brighton and Blackpool — to name two extremes 
 — they tell fortunes as though there were no 
 statutes in that case made and provided. But 
 it is not easy for them to keep on the road. The 
 time cannot be far off when they must live with 
 the gaujos * as house-dweller or perish from the 
 land. 
 
 * Gmijo is the name given by the gipsies to all strangers who are 
 not of the Romany race.
 
 Commonwealth Xaw an& Xawpera. 
 
 Edward Peacock, f.s.a. 
 
 THE great Civil War as it is called, that is 
 the struggle between Charles the First 
 and his parliament, is memorable in many- 
 respects. No student of modern history can 
 dispense with some knowledge of it, and the 
 more the better, for it was the result of many 
 things which had happened in the far distant past, 
 and we may safely say that the great French 
 Revolution, which produced some good, and 
 such an incalculable amount of evil would have 
 run a far different course to that which it did, 
 had not the political ideals of the men who took 
 part in that terrible conflict been deeply influenced 
 by what had taken place in England a century 
 and a half before. 
 
 As to the civil wars which had occurred in 
 England in previous days, little need be said. 
 They were either dynastic — the struggle of one 
 man or one family against another — or they were 
 religious revolts against the Tudors, by those
 
 180 LEGAL LORE. 
 
 who vainly endeavoured to re-establish the old 
 order of things in opposition to the will of the 
 reigning monarch and the political servants 
 who supported the throne. The struggle 
 between Charles and the Long Parliament was 
 far different from this. That religion in some 
 degree entered into the conflict which was raging 
 in men's mind long ere the storm burst it would 
 be childish to deny, but it was not so much, 
 except in the case of a very few fanatics, a conflict 
 between different forms of faith as because a 
 great number of the English gentry, and almost 
 the whole of the mercantile class, which had then 
 become a great power, felt that they had the best 
 reasons for believing that it was the deliberate 
 intention of the King and the desperate persons 
 who advised him, to levy taxes without the 
 consent of parliament. This may occasion- 
 ally have been done in former reigns, but it is 
 the opinion of most of those who have studied 
 the subject in latter days, so far as we can see, 
 without prejudice, that in every case it was 
 illegal. Whether this be so or not, it must be 
 remembered that times were in the days of Charles 
 the First, far different from what his predecessors 
 the Plantagenets and Tudors had known. A
 
 COMMONWEALTH LAW AND LAWYERS. 181 
 
 great middle class had arisen partly by the 
 division of property consequent <>n the dis- 
 persion of the monastic lands, and partly also 
 
 by the break up of the vast feudal estates, some of 
 which had fallen into the hands of the Crown by 
 confiscation, others been sold by their owners to 
 pay for their own personal extravagence. 
 
 Though murmurs had existed for many years, 
 it was not until the memorable ship-money tax 
 was proposed that affairs became really grave. 
 Had England been threatened by an invasion 
 such as the Spanish Armada, there can be no 
 doubt that a mere illegality in the mode of 
 levying taxes to meet the emergency would have 
 been regarded as of little account, but in the 
 present case there was no overwhelming need, 
 and it must be borne in mind that to add to the 
 national irritation the two first Stuarts were 
 almost uniformally unsuccessful in their foreign 
 wars. It is to Attorney General Noy that we 
 owe the arbitrary ship-money tax. He was a 
 dull, dry, legal antiquary of considerable ability, 
 whose works, such as his Treatise concerning 
 Triii/rrs and Estates; The Cow/pleat Lawyer; 
 The Rights of the Grown, and others of a like 
 character, are yet worth poring over by studious
 
 182 LEGAL LORE. 
 
 persons. Such a man was well fitted for historical 
 research, no one of his time could have edited 
 and annotated The Year Books more efficiently, 
 but he had no conception of the times in which 
 he lived, the narrow legal lore which filled his 
 mind produced sheer muddle-headedness, when 
 called upon to confront an arbitrary king face to 
 face with an indignant people. That there was 
 less to be said against this form of royal taxation 
 than any other that legal ingenuity could light 
 upon must be admitted, but as events shewed the 
 course he advised the king to take, was little 
 short of madness. John Hampden, who repre- 
 sented one of the oldest and most highly respected 
 races of the English gentry — nobles as they would 
 be called in any land but our own — set the example 
 of refusing to pay this unjust levy. The trial 
 lasted upwards of three weeks, and the men 
 accounted most learned in the law were employed 
 in the case. Sir John Bankes, the owner of 
 Corfe Castle, Sir Edward Littleton, and others 
 were for the King. Oliver Saint John and 
 Mr. Holborn were for Hampden. Concerning 
 Holborn little seems to be known, but Saint 
 John made for himself a great name. His 
 speeches are marvellously learned, shewing an
 
 COMMONWEALTH LAW AND LAWYERS. 183 
 
 amount of reading which is simply wonderful 
 when we call to mind that in those days all our 
 
 national records were unprinted, and almost all of 
 them without calendar or index of any sort. It 
 must, however, he remembered that in those days 
 lawyers of both branches of the profession were 
 well acquainted not only with the language in 
 which our records were written, but also with 
 the hands employed at various periods, and the 
 elaborate system of contraction used in repre- 
 senting the words. 
 
 A full report of this memorable trial is to be 
 found in Rush worth's Historical Collections, 
 volume ii. parts 1 and 2. Carlyle in his Letters 
 detl Speeches of Oliver Cromwell, in the emphatic 
 diction he was accustomed to use says that Saint 
 John was " a dark, tough man of the toughness 
 of leather,"* but he does not dwell on his great 
 learning and general ability, as he ought to have 
 done. That Saint John's heart was in his work 
 for his client we are well assured. That from 
 a legal point of view, Hampden was his only 
 client, we well know, but as a matter of fact, it is 
 no exaggeration to say that he represented the 
 people of England. The decision went in favour 
 
 * Edition L857, vol. i., p. 77.
 
 184 LEGAL LORE. 
 
 of the crown, which was from the first a foregone 
 conclusion. It was a legal victory, but like many 
 lesser victories won before and since success was 
 the sure road to ruin. The sum contended for 
 was absurdly small — twenty shillings only — but 
 on that pound piece hung all our liberties ; 
 whether we were to continue a free people or 
 whether we were to have our liberties niched 
 away from us, as had already been the case in 
 France and Spain. A sullen discontent brooded 
 over the land, there was no rioting, but in hall 
 and castle, country parsonage and bar-parlour, 
 grave men were shaking their heads and asking 
 what was to come next, all knew that a storm 
 was brewing, the only question was when and 
 where it would burst. Events changed rapidly, 
 and Saint John though he took no very 
 prominent part in the party struggles ere the 
 war broke out, was undoubtedly the chief legal 
 adviser of those who were in opposition to the 
 faction which desired to make England a despotic 
 monarchy. Such was the case during the war 
 which ended in the tragic death of the king, and 
 the establishment of a Republican form of 
 o-overnment under the name of the Common- 
 wealth. Saint John once again appears in a public
 
 COMMON WKALTH LAW AND LAWYERS. L83 
 
 manner which indicates that he was ;i brave man 
 who had no more fear of I lie pistol and dagger <>\ 
 the assassin, than he had of the corrupt dealings 
 of those who for a time, to their own imminent 
 peril had misgoverned our country. This time 
 we find him sent by the Commonwealth as 
 ambassador to the seven United Provinces, then 
 as now commonly called Holland, on account of 
 the two provinces of north and south Holland, 
 being by far the most influential states in that 
 republic. The Dutch though republicans them- 
 selves, had during the latter part of our Civil 
 War shewn sympathy with the cause of the 
 Koyalists. After the execution of the king, this 
 feeling became naturally much intensified. On the 
 other hand our newly established republic was for 
 many reasons both of politics and religion very 
 desirous of being on good terms with a sister 
 commonwealth so very near at hand. To explain 
 matters and perhaps to settle the heads of a 
 definite treaty, the English government sent 
 1 saac Doreslaus, or Doorslaer as their am- 
 bassador. He was by birth a Dutchman and a 
 very learned lawyer. He had come to this 
 country before, the war broke out in L6 l_. He 
 was then made, probably through the influence of
 
 186 LEGAL LORE. 
 
 his friend Sir Henry Mildmay, "Advocate of the 
 Army."* His great knowledge of Civil Law, 
 which had been much neglected in England in 
 times subsequent to the Reformation, rendered 
 him of great service in his new position of Judge 
 Advocate of the Army. For the same reason he 
 soon afterwards was created one of the judges of 
 the Admiralty Court. He became especially 
 hateful to the Royalists from his having assisted 
 in preparing the charges against Charles the 
 First. In May, 1649, he sailed for Holland as 
 Envoy of the English government to the Hague. 
 He had only spent a short time there, when, 
 while at supper in the Witte Zwaan (White 
 Swan) Inn, some five or six ruffians with their 
 faces hidden by masks, rushed into the room 
 where he, in company with eleven other guests 
 were sitting. Two of these wretches made a 
 murderous attack on a Dutch gentleman of the 
 company, mistaking him for Dorislaus. Finding 
 out their error they set upon the Envoy and slew 
 him with many wounds, crying out as they did 
 so, "Thus dies one of the King's judges." The 
 leader of this execrable gang was Col. Walter 
 
 * Peacock. Army Lists of Roundheads and Cavaliers, 2nd edit., 
 1874, p. 21.
 
 COMMONWEALTH LAW AND LAWYERS. 1-7 
 
 Whitford, son of Walter Whitford, D.I). The 
 murderer received a pension for this "generous 
 action" * after the Restoration. 
 
 The English Parliament gave their faithful 
 servant a magnificent funeral in Westminster 
 Abbey, June 14, 1049, but when Charles the 
 Second ascended the throne, his body was 
 disturbed. His dust rests alon g with that of 
 Admiral Blake and other patriots in a pit 
 somewhere in Saint Margaret's churchyard, t 
 Dorislaus, though a foreigner, ought to rank 
 among our great English lawyers, for his services 
 were devoted entirely to his adopted country. 
 Whatever our opinions may be as to those 
 differences which were the forerunners of so much 
 bloodshed and crime, we must bear in mind that 
 many of the foremost men on both sides were 
 actuated by the highest principles of honour. 
 The study of Canon Law had been prohibited in 
 the preceding century, and the Civil Law with 
 which it has so intimate a connection, though not 
 made contraband, was so much discouraged that 
 it is no exaggeration to say that the knowledge 
 of it was confined to a very few. Selden, whose 
 
 * Wood, Athenae Oxon, sub nom. 
 
 t John Loden (iollpried's Ki-oni/ck, vol. iv. , p. 4,14. Van der Aa, 
 Bioijraphisch Woordenbork, sub voce.
 
 188 LEGAL LORE. 
 
 wide grasp of mind took in almost every branch 
 of learning as it was known in his day, is the 
 only English lawyer we can think of who had 
 mastered these two vast subjects. This is the 
 more remarkable as he was of humble parentage ; 
 the son of a wandering minstrel it is said, but 
 from the first his passion for learning over- 
 mastered all difficulties. It must, however, be 
 borne in mind that according to the custom of 
 those times when his abilities became known, he 
 met with more than one generous patron. 
 
 We must for a moment return to Saint John 
 who was selected in 1652, to represent his 
 country in Holland. There was not, as there is 
 now a trained body of men devoted to the 
 diplomatic service. The reasons why Saint John 
 was chosen for this important office are not clear. 
 He was a great and widely read lawyer, who we 
 apprehend was trusted with this difficult mission, 
 not only because the government were assured of 
 his probity, but because the relations between 
 Holland and this country depended on many 
 subtile antiquarian details which a mere student 
 of the laws as they were then, would have been 
 unable to unravel. The basis of the sea codes by 
 which the various nations of Christendom pro-
 
 COMMONWEALTH LAW AND LAWYERS. 189 
 
 fessed to be ruled, was the Laws of Oleron 
 (Leges Uliarences). They were promulgated by 
 Richard the First of England, on an island in the 
 Bay of Acquitaine. How far they were ever 
 suited for their purpose may be questioned, but 
 it is certain that as centuries rolled on, they had 
 though often quoted, ceased to have any 
 restraining power, and as a consequence Spain, 
 England, Holland, and other powers were guilty 
 of constant acts of w r hat we should now call 
 piracy. A lasting treaty with Holland, could 
 Saint John achieve it, would have been of 
 immense advantage, but the Dutch were in no 
 mood for an alliance on equal terms. It was a 
 brave thing for Saint John to undertake so 
 arduous a mission, for he not only run the risk of 
 ignominous failure, but also was in no little 
 danger from the savage desperadoes who thought 
 they did the cause of their exiled master service 
 by murdering the agents of the English govern- 
 ment. When Saint John arrived at the Hague he 
 was put off by slow and evasive answers, which 
 soon shewed to him not only that his own time 
 was being wasted, but what was to him of far 
 more account, the honour of his country was 
 being played with. He gave a proud, short,
 
 190 LEGAL LORE. 
 
 emphatic reply to the Dutch sophistries, and at 
 once returned home again, to cause the celebrated 
 Navigation Act to be passed, forbidding any goods 
 to be imported into England, except in English 
 ships, or in the ships of the country where the 
 articles were produced. This was well-nigh ruin 
 to the trade of the Dutch, who were then the 
 great carriers of the world. 
 
 In no sketch however brief of the lawyers of 
 this disturbed time, can the name of William 
 Prynne be entirely passed over, and yet it is not 
 as a lawyer that his name has become memorable. 
 Had he been a mere barrister at law he would 
 long since have been forgotten, but he was an 
 enthusiastic puritan of the presbyterian order, 
 and a no less enthusiastic antiquary. He had 
 probably read as many old records as Saint John 
 or Selden, but had by no means their faculty of 
 turning them to good account. He first comes 
 prominently before us as attacking the amuse- 
 ments of the court, especially theatrical enter- 
 tainments. For this he was proceeded against 
 in the Star Chamber, sentenced to pay five 
 thousand pounds and have his ears cut off; for 
 an attack on episcopacy he was fined another 
 five thousand pounds and sentenced once more to
 
 COMMONWEALTH LAW AND LAWYERS. 191 
 
 have his ears cut off. He afterwards bore a 
 prominent part in the trial of Archbishop Laud. 
 All along he continued to pour forth a deluge of 
 pamphlets. He attacked Cromwell with such 
 boldness, that the Protector felt called upon to 
 imprison him in Dunster Castle, where however, 
 his confinement was of a most easy character. 
 He is said while there to have amused himself by 
 arranging the Lutterell Charters, for which that 
 noble home is famous. He took the side of 
 Charles the Second at the Restoration, and as a 
 reward was made keeper of the records in the 
 Tower, a post for which he was peculiarly well 
 fitted. 
 
 There is probably nothing which distinguishes 
 the periods of the Commonwealth and the 
 Protectorate more markedly from other times of 
 successful insurrection, than the very slight 
 alteration which the new powers introduced into 
 the laws of England. The monarchy, it is true, 
 was swept away, but the judges went on circuit ; 
 the courts of Chancery and common-law sat 
 as usual, the Lords of Manors held their 
 courts, and the justices of peace discharged their 
 various functions as if they had been the times of 
 profoundest peace. No confiscations took place,
 
 192 LEGAL LOKE. 
 
 as had been the case in the reign of Henry the 
 Eighth and his successor, except in cases where 
 the owners had been engaged in what the state 
 regarded as rebellion, and even with regard to 
 those who had fought in what is known as the 
 first war, almost everyone was let off by a heavy 
 fine. A list of these sufferers may be seen in A 
 Catalogue of the lords Knights and Gentlemen 
 that have compounded for their Estates (London 
 Printed for Thomas Dring at the Signe of the 
 George in Fleet Street, neare Clifford's Inne, 
 1655.) The book is imperfect and very in- 
 accurate. This is not of much consequence 
 however, as the documents from which it is 
 compiled known as The Royalist Composition 
 Pap>ers, are preserved in the record office, and 
 are open to all enquirers. Those who madly 
 engaged in what is known as the second war, had 
 their estates confiscated by three acts of parlia- 
 ment of the years 1651 and 1652. These were 
 reprinted and indexed for the Index Society in 
 1879. These latter had their estates given back 
 to themselves or their heirs on the Restoration. 
 It does not seem that those who were fined, 
 except in a very few cases had any return made 
 to them. There have been few civil wars ancient
 
 COMMONWEALTH LAW AND LAWYER8. 193 
 
 or modern wherein the unsuccessful have been 
 so tenderly treated. Yet sufferings of the 
 poorer classes among the Royalists must have 
 been very great. Next to the arbitrary conduct 
 of the King and those immediately about 
 his person, was the provocation which the 
 Parliamentarians thought that the established 
 church had given, firstly because many of 
 the bishops and clergy maintained an extreme 
 theory of the Divine Right of Kings, which 
 is said first to have been taught in this 
 country by Archbishop Cranmer. If this 
 opinion were really accepted as more than 
 a mere figure of flattering oratory, it made 
 those who complied with it mere slaves to 
 the sovereign, however tyrannical or wicked 
 he might prove himself. The second ground 
 of resentment was that they thought Arch- 
 bishop Laud and many of the bishops and 
 clergy, concealed Roman Catholics, "disguised 
 Papists," as the common expression ran. We 
 do not believe this charge with regard to 
 Laud or most of the others so rashly accused. 
 We are quite sure it was not so if their writings 
 are to be taken as a test of their feelings. 
 
 Whatever may have been the truth, there is no 
 
 13
 
 194 LEGAL LORE. 
 
 doubt that even the more tolerant of what may 
 be called the low-church party feared the worst. 
 As early as 11th February, 1629, Oliver 
 Cromwell, who was then member for Hunt- 
 ingdon, made a speech in which he said, " He 
 had heard by relation from one Dr. Beard . . . 
 that Dr. Alablaster had preached flat Popery at 
 Paul's Cross, and that the Bishop of Winchester 
 (Dr. Neale), had commanded him as his 
 Diocesan, he should preach nothing to the 
 contrary."* So inflamed, however, were men's 
 minds that as soon as the Parliamentary party 
 was strong enough, Laud was indicted for high 
 treason and beheaded. 
 
 One of the first works of the Parliament when 
 strong enough, was to abolish the Book of 
 Common Prayer, and put a new compilation 
 called the Directory in its place. The use of the 
 Prayer Book was forbidden not only in public 
 offices of religion, but in private houses also. 
 For the first offence five pounds was to be levied, 
 for the second ten, and for the third the 
 delinquent was to suffer one year's imprison- 
 ment, t Whether this stringent law was 
 
 * Carlyle, Letters and Speeches of Oliver Cromwell, vol. i. , p. 50. 
 t Henry Scobell, Acts and Ordinances, 1645, chapter 57.
 
 COMMONWEALTH LAW AND LAWYERS. 195 
 
 rigorously inforced we cannot tell. Probably in 
 many cases the local justices would bo far more 
 lenient to the clergy who were their neighbours, 
 that would be the legislators at Westminster, 
 whose passions were fanned by listening to the 
 popular preachers. Not content with interfering 
 with the service-book, various acts were passed 
 relating to " Scandalous, Ignorant, and In- 
 sufficient ministers." That the commissioners 
 who put these acts in force removed some evil 
 persons we do not doubt, but if John Walker's 
 attempt towards recovering an account of the 
 number and sufferings of the Clergy of the Church 
 of England, who were sequestered . . . in 
 the Grand Rebellion, be not very grossly 
 exaggerated, which we see no reason, to believe, 
 many innocent persons must have had very 
 hard treatment. 
 
 The marriage laws of England were in a vague 
 and unsatisfactory state from the reign of 
 Edward the Sixth, until the Commonwealth 
 time. An attempt was made in 1G53 to alter 
 them. Banns were to be published either at 
 Church or in the nearest market town on three 
 market days, after this the marriage was to take 
 place before a justice of peace. Many nit lies of
 
 196 LEGAL LORE. 
 
 marriages of this kind are to be found in our 
 parochial registers. English was made the 
 language of the law in 1650, but Latin was 
 restored to the place of honour it had so long 
 held, when the Restoration took place.
 
 (tocMfigbting in Scotland. 
 
 IT is highly probable that thu Romans 
 introduced cock-fighting into this country. 
 It is generally believed that the sport was made 
 popular by Theniistocles. On one occasion he 
 saw two cocks fighting, and their courage greatly 
 impressed him, and lie felt such exhibitions 
 might teach a useful lesson of bravery to those 
 who witnessed them. Periodical contests were 
 exhibited, and were popular amongst the Greeks 
 and Romans and with other nations, and were much 
 appreciated by a large section of the inhabitants 
 of this land. In "Bygone England," by William 
 Andrews, f.u.h.s. (London 1892), will be found a 
 long account of " Fighting-Cocks in Schools." 
 One of the earliest accounts of the pastime in 
 England, says Mr. Andrews, occurs in a ''Des- 
 cription of the City of London," by William 
 Fitzstephen, who wrote in the reign of Henry 
 II., and died in the year 1191. He records that 
 it was the annual custom on Shrove Tuesday for 
 the boys to bring their game cocks to the schools,
 
 198 LEGAL LORE 
 
 to turn the schoolrooms into cockpits, the 
 masters and pupils spending the morning 
 witnessing the birds fighting. 
 
 Old town accounts contain many references to 
 this custom, for example at Congleton, Cheshire, 
 is the following item : — 
 
 " 1601. Payd John Wagge for dressy nge 
 the schoolhouse at the great 
 [Congleton] cockfyghte." - - £0 0s. 4d. 
 
 Hugh Miller, the famous geologist, who was 
 born in the year 1802, in his popular volume 
 " My Schools and Schoolmasters," gives a graphic 
 account of that amusement in the Cromarty 
 grammar school where he received his education. 
 "The school," says Miller, "like almost all other 
 grammar schools of the period in Scotland, had 
 its yearly cock-fight, preceded by two holidays 
 and a half, during which the boys occupied 
 themselves in collecting and bringing up the 
 cocks. And such was the array of fighting 
 birds mustered on the occasion, that the day of 
 the festival from morning till night used to be 
 spent in fighting out the battle. For weeks after 
 it had passed, the school floor continued to retain 
 its deeply stained blotches of blood, and the boys 
 would be full of exciting narratives regarding the
 
 COCK-FIGHTING [N SCOTLAND. 199 
 
 glories of gallant birds who had continued to 
 
 fight until their eyes had been pecked out ; or 
 who in the moment of victory, had dropped dead 
 
 in the middle of the cock-pit." Miller at some 
 length denounces the cruel sport. 
 
 In England cock-fighting is prohibited by 
 
 statute 1.5 and 13 Vict. 3, 9'J, under which every 
 person who shall in any maimer encourage, aid, 
 or assist at the fighting or baiting of any bull, 
 bear, badger, dog, cock, or other animal, shall 
 forfeit and pay a penalty not exceeding £o for 
 every such offence. In Scotland it was not illegal 
 until quite recently. An act was passed in 1850 
 known as the "Cruelty to Animals (Scotland) 
 Act," but the wording of the statute was 
 found not to include the game or fighting-cock. 
 The sport became popular and the law could not 
 touch those that took part in the cruel amuse- 
 ment. It was felt to be a national scandal, and to 
 prevent it, a short statute was passed on 30th 
 May, 1895, whereby the definition of the word 
 animal in the 11th section was amended by 
 adding at the end thereof the words "or any 
 game or fighting-cock, or other domestic fowl or 
 bird." 
 
 Mr. Robert Bird, the genial and gifted author
 
 200 LEGAL LORE. 
 
 of "Law Lyrics," a volume which has been 
 warmly welcomed by the public and the press, 
 has made cock-fighting the subject of a clever 
 poem. 
 
 COCKIELEERIE LAW. 
 
 By Robert Bird. 
 
 In Full Court, Edinburgh, 2Srd December, 1892. 
 
 Six legal wigs, like well-plumed tappit hens, 
 
 Sat brooding o'er a pair of lighting cocks ; 
 
 While lesser wigs, begowned, and brief in hand, 
 
 Declaimed in flowing periods, of the fray, 
 
 Like ancient bards, that wanted but their harps, 
 
 Their wallets, ballad verse, and song, to make 
 
 The very goose quills, sleeping on the bench, 
 
 Awake ! take sides and spill each other's ink. 
 
 And as they spake, a legal fog dropt down 
 
 Upon the learned six, and each beheld, 
 
 In green mirage, born of the cloud of words, 
 
 Two cocks, Game cocks, crop-combed, erect, and slim, 
 
 With feathers dipped in crimson, gold, and blue, 
 
 Frill-necked, with trailing wings and spurs of steel, 
 
 That on each other flew and pecked and spurred, 
 
 And spurred and pecked again, until the Court 
 
 Reeked like a cock-pit, and the crowd of wigs,— 
 
 Of boyish idle wigs, — -took bonnet shapes 
 
 That hooded scowling brows of cursing men, 
 
 Who laid their bets on this bird, and on that, 
 
 As, with quick panting breath and beaks agape, 
 
 They pranced, flew, fought, until the oaken bar 
 
 Seemed spattered o'er with feathers and cock blood 
 
 At length one cock the other overthrew,
 
 cock FIGHTING in Scotland. 201 
 
 Ami struck quick spurs into his quivering breast 
 Until he died ; then he, with croaking crow, 
 Fell, wounded, bleeding, dying by his side 
 
 Amid the applauding cheers of thirsty throats, 
 Soon to be slaked with liquid bets, and so 
 The hat tie ended, but the fog remained. 
 
 A rustling of silk plumes upon the bench, 
 Five wigs bent low, and thus great Solon spake — 
 
 " 'Twas in Kilharehan that this tight was fought, 
 And straight (he men who prompted it were ta'en, 
 And jailed, and tried, and sentenced for the same ; 
 But now they seek release, and this their plea, 
 That in the gracious Act which says that men 
 Shall not treat brutes and beasts with cruelty, 
 The name of " Cock" is absent ; therefore they 
 Claim full exemption for their brutish deeds, 
 And we, vicegerents of our gentle Queen, 
 With spectacle on nose, must well explore 
 This vital point in Cockieleerie-hur. 
 
 The illumined page of history reveals 
 Cock-tighting as an ancient royal sport. 
 The Early Greeks and Romans in their day 
 Found pastime sweet in setting cock on cock ; 
 The sage Themistocles took keen delight 
 In battling fowls ; while glorious Caesar, too, 
 Loved much to back his bird ; and, furthermore, 
 Man- Antony's gamecocks did always lose 
 When pitted against Cajsar's fiercer breed. 
 King Henry VIII., of sainted memory ! 
 At Whitehall had a special cock-pit built, 
 Wherein his royal birds made lively sport 
 For gentle dames and all his merry knights. 
 The most accomplished scholar of his day,
 
 202 LEGAL LORE. 
 
 Squire Roger Ascham, tutor to Queen Bess, 
 Much as he loved his books, loved cocks the more, 
 And loved them most when victors in the fight. 
 And last of all, that great and noble Duke, 
 The conqueror of Blenheim, in game birds 
 Found something that reminded him of self ; 
 And thus we see the fighting instinct strong 
 In cocks, and other nobles of past time. 
 
 " Game cocks, we find, from earliest Cockereldom, 
 Delight in war, as dogs to bark and bite, 
 And raining blows upon each other's ribs 
 Do best fulfil their part of nature's plan, 
 Which built them slim and bade them love the fray ; 
 And while we hope no preference here to show, — 
 'Tis open question, whether rearing fowls 
 To wring their necks, or match them in the pit, 
 Does more exalt the brute or sink the man. 
 
 " But here, the cocks were armed with spurs of steel, 
 And 'tis a subtle matter, whether they 
 With iron shod, or spurred with native horn, 
 Do deal the deadliest blows in angry fray ; 
 And, while we have our own opinion strong ! 
 'Tis not within our province to pronounce. 
 
 " If it be wrong with steel to prick a fowl, 
 What of the spurs with which hard riders goad 
 The bleeding sides of horses in the race, 
 Or in the steeplechase, or country hunt 1 
 And what of hares in coursing run to death 1 
 Of quivering foxes torn by yelling hounds 1 
 Of wheeling pigeons slaughtered for a prize ? 
 We make no mention of the common use, 
 Of otter hunting, grouse and pheasant drives.
 
 COCK-FIGHT INC IN SCOTLAND. 203 
 
 Ami of the sport termed noble, where the 
 Is forced upon the guns that lay him low. 
 No doubt, t w<> blacks can never make one white, 
 
 Nor multiplying Macks turn black to grey ; 
 But if to brutalise mankind be thought amiss, 
 Then there are other ways, than fighting cocks. 
 
 "Still that's beside our purpose, which is this — 
 To scan the statute, microscope in hand, 
 And note if in its sweep humane, we see 
 A roosting place for fighting chanticleer. 
 And there we find, or rather fail to find, 
 The name of "Cock " among the saving list 
 ' >f nineteen beasts protected by the law, 
 Though thus the list concludes, "and other kinds 
 0/ animals domestic" or like words. 
 Are we to find Game Cocks, domestic fowls 1 
 Are we to hold that birds, are animals ? 
 Our view is quite the contrary, or else 
 There's not a beast, bird, fish, or insect but 
 The term "domestic" would to them apply, 
 And make it penal e'en to slay a louse. 
 
 " And while, in other parts of this same Act, 
 We find " Cock " followed by the general phrase, 
 " Or other kind of animal" we hold 
 It bears not on the matter now in hand, 
 But only serves to show that Parliament, 
 When brooding, clucking, hen-like, o'er this Act. 
 Had Cocks well in their eye, and plainly did, 
 Of purpose full, omit them from the list ; 
 And while bear-fights, buli-fights, dog-fights, and all 
 Vile sports and brutish cruelty to beasts, 
 The spirit and the letter of the law 
 Do cpjite forbid, unanimous ive hold
 
 204 LEGAL LORE. 
 
 Cock-fighting is a lawful use of Cocks, 
 And finding so we liberate these men. 
 
 " It will be said, this Statute has been read 
 Reversely in our sister England, where 
 It is the Charter of proud Chanticleer ; 
 But what of that 1 It alters not our mind ! 
 But only shews, that they, of feebler clay, 
 Stick not at trifles, so the end be good, 
 And let the heart o'erbeat the legal mind ; 
 While we, of sterner stuff, fail not to find 
 Motes in the sunshine of their simple wits, 
 And gnats to strain out of their cups of wine ; 
 For in the nice accomplishment and use 
 Of splitting hairs, and weighing feathers small, 
 Of riddling wisdom from a peck of words, 
 We are more skilled, more subtle, more profound 
 Than our legal brethren of the South." 
 
 Whereat five horse-hair wigs again bowed down 
 In low obeisance to the mighty sage, 
 And straight the Court was cleared of cocks and men.
 
 Jfatal Xlnfcs. 
 
 By Ernest H. Rann. 
 
 A CONSIDERATION of the detection of 
 crime brings forcibly to the mind the fact 
 that officers of law have frequently to depend for 
 success on the accidental discovery of the most 
 trifling items and incidents. Conversely the 
 criminal section of the community who prey on 
 the weakness or folly of their neighbours have to 
 fear not only a knowledge of their principal 
 movements, but the discovery of the connecting- 
 link which shall complete the chain of evidence 
 against them. The deepest laid plot, the most 
 cunning scheme, contains a flaw which may be 
 fatal to their operations, to their liberty, and 
 even their life, a flaw which no amount of 
 previous examination may detect, a weakness 
 which can rarely be adequately guarded against. 
 Justice and the vindication of the law, therefore, 
 depend largely on a proper regard being paid to 
 minor occurrences, which at first sight would 
 seem to have do bearing whatever on the
 
 206 LEGAL LORE. 
 
 particular case under consideration. The history 
 of crime contains numberless instances where the 
 criminal has been brought to justice through one 
 or other of these causes — the presence of par- 
 ticular hairs or threads on his clothing or on 
 the weapon used, the direction of certain cuts on 
 the body of his victim, the possession of trifling 
 articles. At other times dreams have played no 
 inconsiderable part in the vindication of the 
 law, which has also been aided by supernatural 
 visitants, or by the self-consciousness of the 
 criminal. 
 
 It would be impossible in a short article like 
 the present to offer a full list of cases of this 
 description, but a few typical instances may be 
 taken with the object of showing how crimes, 
 long- hidden, have been discovered in the most 
 remarkable manner. Probably the best example 
 occurred at Augsburg, in 1821. A woman 
 named Maria Anna Holzmann lived in a house 
 in the town belonging to one Sticht. Her 
 means only permitted her to occupy a few of the 
 rooms, and the remaining parts of the premises 
 were let to lodgers, among whom were George 
 Rauschmaier and Joseph Steiner. On Good 
 Friday, April 20th, Holzmann disappeared.
 
 FATAL LINKS. 207 
 
 She had not given notice of her intended 
 
 departure, and nothing was known of it until 
 some days later when Rauschmaier and Steineralso 
 left the premises, saying that their landlady had 
 previously quitted the house, leaving them in 
 possession of her keys. This information, how- 
 ever, was not given to the police until May 
 17th. In the meantime Holzmann's relatives 
 had become apprehensive of her safety, and being 
 reluctantly forced to the conclusion that foul play 
 had befallen her, they decided to take an inventory 
 of her property, as it was known that, although 
 in humble circumstances, the woman had managed 
 by care and economy to amass considerable 
 wealth. It was found, however, that the greater 
 part of her money and other valuables were 
 missing. 
 
 In spite of active enquiries no further action of 
 importance in the matter was possible until the 
 following January, when Theresa Belter, a washer- 
 woman who also lived in the house, announced 
 that she had found a thigh of a human body 
 hidden in the loft. Further investigations re- 
 vealed a leg and the other thigh in a heap of 
 rubbish in a corner of the room, and between the 
 chimney and the roof, a trunk without head or
 
 208 LEGAL LORE. 
 
 limbs was discovered. An old gown and a petti- 
 coat, identified as portions of the dress of Holz- 
 mann, were also brought to light, while search in 
 Rauschmaier's room disclosed other parts of a 
 woman's body. The head was missing, but when 
 news of the unmistakeable crime was noised abroad, 
 a neighbouring manufacturer stated that during the 
 preceding year he had found a skull, still bearing 
 portions of flesh and hair, in his factory weir, but 
 had not considered the " find " worthy of preser- 
 vation. 
 
 There could be no doubt that Maria Anna 
 Holzmann had been murdered, and the whole 
 machinery of the law was put in motion to bring 
 the criminals to justice. Suspicion fastened itself 
 strongly upon the two men, Rauschmaier and 
 Steiner, but actual evidence against them, or 
 indeed against anyone, was of the scantiest de- 
 scription until the separate pieces of the woman's 
 body were placed together. While the left arm 
 was being examined, a brass ring fell out of the 
 bend of the elbow, whence it had evidently slipped 
 from the finger of the murderer. Whose was the 
 ring ? then became the all important question. 
 Rauschmaier was arrested and confessed that he 
 had stolen and pawned several articles of Holz-
 
 FATAL LINKS 209 
 
 mann's property, but he sternly denied having 
 committed the murder. The property, including 
 
 a pair of ear-rings, had been recovered from the 
 pawnbroker's, and these, with the brass ring, were 
 laid before the accused. He had not wit enough 
 to discern the trap laid for him. and immediately 
 on seeing the ornaments, he exclaimed "The ear- 
 rings and the gold and brass rings are mine. The 
 brass ring I always wore until within four or five 
 weeks after Easter, since when I have worn gold 
 ones. The brass ring fits the little finger of my left 
 hand ; it slips on and off with ease." This foolish 
 statement, and the place of the discovery of the 
 ring, proved conclusively that Rauschmaier was 
 the murderer of the unfortunate Holzmann. 
 Subsequently he made full confession of the 
 crime, stating that the brass ring must have 
 slipped off while he was cutting up the bod v. 
 He paid the penalty of his sins with death. 
 
 The " Greenacre " case, which occurred in 1836, 
 was similar to the foregoing in many of its details. 
 In that year, portions of the mutilated trunk of 
 an old woman named Brown were found in a house 
 in Edge ware Road, wrapped in old rags and 
 sacking. Subsequently the head was discovered 
 
 in Regent's Canal, and the limbs in a drain in 
 
 11
 
 210 LEGAL LORE. 
 
 the neighbourhood of Caraberwell. Comparison 
 between the various portions left no doubt as to 
 the identity of the deceased, and James Green- 
 acre, whom Brown intended to marry, and to 
 whose house she had gone with all her property, 
 was accused of the murder. A woman named 
 Gale with whom he lived was also charged with 
 complicity in the deed. Once more suspicion, 
 however strong, was insufficient to bring the 
 crime rio-ht home to the accused, but the dis- 
 covery, among Greenacre's property, of some rags 
 corresponding with the pieces covering the mu- 
 tilated remains, together with a few articles 
 belonging to Brown, turned suspicion into actual 
 proof. Greenacre was condemned to death, and 
 his companion sentenced to transportation for life. 
 The murder of William Begbie, at Edinburgh, is 
 a remarkable case of the manner in which the 
 author of a crime may remain long hidden, and 
 only then be discovered by accident. Begbie was 
 a bank porter, and on November 30th, 1806, he 
 was employed to carry a parcel of notes, worth 
 about £4,000, to one of the bank's customers. 
 On his way he had to pass through a narrow, 
 dark, and tortuous entry, and there he was 
 brutally murdered and the notes were stolen.
 
 FATAL LINKS. 211 
 
 Although a knife, of a particular pattern, was lefl 
 
 in the body, the murderer remained at large, and 
 qo elue to the terrible crime could be unearthed. 
 
 Nine months later the bundle of notes, untouched, 
 waa found hidden in a wall, but long years passed 
 before the mystery was completely solved. In 
 I S-Ji* a Bow St reel runnel- named I)eiio\an, while 
 visiting Leith, chanced to fall into conversation 
 with a sailor lately returned from captivity among 
 the French. Speaking of old times the mariner 
 accidentally mentioned that coming ashore one 
 morning he had noticed a man like William Beg- 
 bie, followed by a person dressed in black and of 
 respectable demeanour. He lost sight of them 
 for a few moments, but later on he was surprised 
 to see the man in black rush out of the narrow 
 entry with a bundle under his arm. On the 
 next day he heard of the murder, and feeling con- 
 fidant that he could throw light on the crime, he 
 informed the mate of his vessel of what he had 
 seen. Permission to go ashore was, however, 
 refused. The vessel sailed, was captured by the 
 French, and the sailor witness did not recover his 
 liberty for fifteen years. Denovan set to work with 
 this important clue, and enquiries proved that the 
 man in black was no other than a notorious
 
 212 LEGAL LORE. 
 
 criminal named Mackoul, who had lived in Edin- 
 burgh in 1806. The law had claimed its own, 
 however, previous to the sailor's disclosures. In 
 1820 Mackoul had suffered death for robbery ; 
 still, though he was beyond punishment for his 
 old crime in Edinburgh, it was satisfactory to 
 know that the mystery of the bank porter's death 
 had at last been solved. 
 
 Probably the most notorious case in English 
 annals of murder discovered by extraordinary 
 means is that of the killing of Daniel Clarke by 
 Eugene Aram. The main facts of the case are so 
 well known that it is scarcely necessary to enter 
 into them here. Aram, assisted by a man named 
 Houseman, it may be remembered, murdered 
 Clarke for the sake of his wealth, and hid the body 
 in St Robert's cave, near Knaresborough. There 
 it remained from 1745 till 1759, when it was 
 accidentally discovered by a labourer. Close ex- 
 amination led to the conclusion that the body, or 
 rather the skeleton, was that of a murdered man, 
 and when the mysterious and almost forgotten 
 disappearance of Clarke was remembered, steps 
 were taken to arrest his quondam companions 
 Aram and Houseman. The latter turned king's 
 evidence, and on his testimony Aram was ex-
 
 FATAL LINKS. 213 
 
 ecuted, leaving a shady memory to be invested 
 with undeserved romance by a pout and a novelist 
 
 of the following century. 
 
 Researches into modern criminal records also 
 reveal a number of interesting cases similar to 
 those cited above. A few years ago a Pole 
 named Lipski was convicted in London of the 
 murder of a woman. Strenuous efforts were 
 made to obtain a pardon, on the ground that he 
 had been wrongly convicted, but the solitary fact 
 on which the Home Secretary decided to allow the 
 law to take its course was that the door of the room 
 had been locked in which the woman was found 
 murdered, with Lipski himself hiding under the 
 bed. And in tracing the Muswell Hill murder 
 to its authors, the police were aided in their en- 
 deavours by the discovery of a common lantern 
 which had been left on the scene of the crime. 
 It was supposed to belong to a relative of one of 
 the suspected men, and in order to verify this im- 
 portant link in the chain of evidence, a youthful 
 agent of the detective force was employed to spin 
 his top in front of the supposed owner's house, 
 engage him in conversation if possible, and obtain 
 evidence of the ownership of the lantern. The 
 result was completely satisfactory ; the suspicions
 
 •214 LEGAL LORE. 
 
 of the police were confirmed, and the murderers 
 brought to justice, mainly, it may be said, through 
 the lantern's silent testimony. 
 
 Another case of murder, which occurred in 
 1806, was brought home in a singular and com- 
 plete manner. A Deptford gentleman, named 
 Blight, was killed by a pistol-shot, and Sir Astley 
 Cooper, from an examination of the victim's 
 wounds and of the place of his murder, arrived at 
 the opinion that none other than a left-handed 
 man could have committed the crime. Acting 
 on this conclusion the police arrested one Patch, 
 who had been seen in the locality. When Patch 
 was asked to hold up his hand to plead the indict- 
 ment, he put up his left hand. The jury brought 
 in a verdict of guilty, and before execution the 
 criminal made full confession of his terrible deed. 
 
 Dreams also have played no inconsiderable 
 part in the discovery of crime. We have not 
 space in the present article to notice all trials 
 where dream-evidence has been offered to the 
 court ; a brief notice of those cases in which it 
 has had an important bearing must suffice. The 
 most notorious instance, of course, is that of 
 Maria Martin, the victim of the Red Barn 
 tragedy. After her departure from home, in
 
 FATAL LINKS. 215 
 
 order, as was supposed, to marry William Corder, 
 nothing, either by way of letters, or otherwise, 
 was heard of her, except brief mention in Corder's 
 communications. Nearly twelve months passed, 
 
 when Mrs. Marl in was startled and horrified by 
 dreaming, on three successive nights, that Maria 
 had been murdered and buried in the Ked Barn. 
 After much persuasion her husband and son 
 consented to search the place, and there, in the 
 exact spol indicated by Mrs. Martin as having 
 been pointed out in her dreams, was found the 
 body of her missing daughter, buried under the 
 flooring in a sack. 
 
 Mention may also be made of the case of 
 I'liek Maguire, an Irish farmer, whose wife 
 dreamed that her husband had been murdered 
 by a disappointed lover of hers, named O'Flanagan. 
 A few days later an idiot boy. who lived in the 
 house, was heard shrieking in terror : " Shanus 
 dhu more O'Flanagan (big black James) has 
 kilt Ulick, and buried him under the new 
 ditch at the back of the garden. I dhramed it 
 last night, evry wurrd av it." The singular 
 coincidence of the lad's dream with her own 
 excited Mrs. Maguire's suspicions to the utmost, 
 especially as her husband was away from home at
 
 216 LEGAL LORE. 
 
 the time. She ordered a search at the particular 
 spot mentioned by the idiot boy, and there, to her 
 horror, was found the body of Ulick, with the skull 
 cleft in twain. Immediate request was made for 
 "biff black James." He had absconded and 
 
 o 
 
 enlisted in the army, but on being charged with 
 the crime he admitted his guilt, and suffered the 
 penalty of death. 
 
 In one instance, by far the most wonderful of 
 its kind, the victim of a murder has appeared in 
 successive dreams, and played the part of 
 detective with admirable skill and effectiveness. 
 A Grub Street victualler, named Stockton, was 
 murdered towards the close of the seventeenth 
 century. Three men were suspected of the 
 crime, but neither of them could be discovered, 
 and the affair seemed likely to become one of the 
 mysteries of crime, when a Mrs. Greenwood 
 dreamed that Stockton, who had been a neighbour 
 during life, had taken her to a house in Thomas 
 Street, telling her that his murderer was inside. 
 On going to the house in person Mrs. Greenwood 
 was told that Maynard, one of the suspected 
 men, had gone abroad. The following night 
 Stockton appeared and showed her the features 
 of Maynard, and gave her such particulars of the
 
 FATAL LINKS 217 
 
 man's habits and resorts that he was captured 
 within a few hours. From Maynard the names 
 of his partners in guilt, Beve] and Marsh, were 
 obtained, hut again the authorities were at fault, 
 until Stockton indicated the house where Marsh 
 visited, and the yard (afterwards discovered to be 
 the yard of Marshalsea Prison) in which Beve] 
 would be found. From a crowd of other prisoners 
 Mrs. (iivrnwood identified Bevel, and shortly 
 afterwards, through her strange testimony. 
 Marsh also was arrested. Then, as an old 
 chronicle of the case affirms, Stockton appeared 
 for the last time, and thanked her for her good 
 offices. We have given the story as it has come 
 down through two centuries; a whole body of 
 clergymen attested its accuracy at the time, and 
 present-day enquirers would have great difficulty, 
 we imagine, in conclusively proving that the 
 murder of Stockton was traced by other and less 
 extraordinary means. 
 
 Closely allied to the evidence furnished by 
 dieai ns, and indeed, as in the foregoing case of 
 Stockton, sometimes barely distinguishable from 
 it, is that offered by ghosts, actually seen by 
 witnesses in a waking, but hallucinatory, state. 
 Such evidence would scarcely be admissable in
 
 218 LEGAL LORE. 
 
 modern courts of law, but in past ages it was 
 freely employed, and has served to bring 
 criminals to the ^allows. It must be admitted 
 that the other testimony against the accused was 
 strong, but in numerous instances ghosts have 
 been instrumental in putting the officials on to a 
 clue or track which they would most likely never 
 have discovered by their own unaided efforts. 
 In his " History of Durham," Surtees mentions 
 the case of Anne Walker, who lived in 1630, and 
 had become engaged in an intrigue with a 
 relative of the same name. The girl was placed 
 for a time under the care of a friend in a neigh- 
 bouring village, but one night she was removed 
 from there by Walker and a man named 
 Sharp. From that date no one saw her alive. 
 A fortnight afterwards, Graime, a fuller, was 
 terrified by the appearance in his mill of Anne 
 Walker's ghost, "dishevelled, blood-stained, and 
 with five wounds in her head." She told him 
 the whole story of her murder ; how Sharp had 
 killed her with a collier's pick, and then thrown 
 her body down a shaft. Graime hesitated to use 
 this strangely acquired information. Apparently 
 incensed at his delay, Anne Walker repeatedly 
 appeared, and in order to rid himself of these
 
 FATAL LINKS. 219 
 
 visitations, the frightened fuller al length 
 acquainted the authorities with his story. Im- 
 mediate enquiry confirmed his statements in 
 every particular. Walker and Sharp were 
 arrested, charged with the murder of the girl, 
 found guilty, and executed, though to the last 
 they maintained their innocence of the crime. 
 
 A case, somewhat similar, has occurred even in 
 the present century, and in matter-of-fact, new 
 world Australia, where visions might be expected 
 to be few and far between. The friends of a well-to- 
 do settler near Sydney were surprised to hear from 
 his steward that he had been suddenly called 
 to England on important legal business. Ke- 
 meinbering the vast wealth of the man, and 
 the necessity for precautions in regard to it, they 
 accepted the statement, and also recognised the 
 steward's control of the estate during his master's 
 absence. What was the astonishment, however, of 
 one of these friends, when on riding over the 
 estate he saw the owner, whom he thought to be 
 in England, sitting on a neighbouring stile ? 
 Tiie figure looked at him silently and sorrowfully, 
 then walked towards a pond and disappeared. 
 Drags were procured and the water searched, 
 when the body of the absent owner was brought
 
 220 LEGAL LORE. 
 
 to the surface. Confronted with the corpse the 
 steward confessed that he had murdered his 
 master at the identical stile on which the ghost 
 had sat. 
 
 Pierre le Loyer, a French writer on law and 
 the supernatural, mentions in his " Discours des 
 Spectres," the case of a man who mysteriously 
 vanished, having, as was supposed, been murdered. 
 A few weeks later the ghost of the absentee 
 appeared to his brother, took him to a lonely 
 spot, and there pointed out where he bad been 
 murdered and buried by his own wife and her 
 lover. Enraged at this domestic perfidy and 
 wickedness the brother denounced his sister-in- 
 law, and on his testimony she was condemned to 
 be strangled and her body afterwards burned. 
 
 About half a century ago a peculiar case of 
 fraud was disclosed by remarkable means during 
 the hearing of a law-suit in Tuscany. The 
 decision of the court turned on the point whether 
 a certain word had been erased from a particular 
 document of importance. Chemical processes 
 were alleged to have been employed, and acting 
 on scientific knowledge one of the lawyers proposed 
 that the document should be heated, as thereby a 
 slight difference of shade or colouring between
 
 FATAL LINKS. 221 
 
 the paper and the letters supposed to have been 
 
 removed might l>eeotne visible. Permission was 
 given to try the experiment, and on the applica- 
 tion of heat the important word in question 
 immediately appeared, and the court gave a 
 verdict in accordance with this ingeniously 
 devised testimony. 
 
 Since that time the progress and development 
 of science have enabled criminal investigation to 
 be conducted by methods which would otherwise 
 be impossible, and with almost unerring certainty 
 and decision. The microscope and the spectro- 
 scope have been employed in numerous cases of 
 murder and forgery where less subtle means of 
 discovery would have proved useless ; chemical 
 analysis has become an important agent of 
 detection, while photography has also rendered 
 signal service in the cause of justice. We may 
 not have concerned ourselves with the numerous 
 methods by which bank-note forgeries are 
 detected ; hitherto our references have been 
 mainly to the more serious crime of murder, and 
 with a few instances of this character brought to 
 light through modern science our list must close. 
 
 Although, generally speaking, the microscope 
 cannot discern any difference between the blood of
 
 222 LEGAL LORE. 
 
 man and that of other mammalia, yet the merest 
 examination suffices to show the difference 
 between mammalian blood and that of birds, 
 reptiles, or fishes. In the one case the red blood 
 corpuscles are round, and without a nucleus ; in 
 the other they are oval and nucleated. On this 
 fact the evidence for a prisoner at Chelmsford 
 charged with murder was completely rebutted. 
 Blood stains had been found on his clothes, 
 which, according to his counsel, had been caused 
 by chicken's blood. But the prosecution brought 
 forward a microscopist, who stated that the blood 
 stains were mammalian, and on this testimony 
 the plea of the prisoner was rejected. In the 
 following year, and at the same assizes, the 
 testimony against a man charged with murder 
 was strengthened by the microscopical discovery 
 of cotton fibres on a certain weapon, which he 
 was said to have used, while the murderers of a 
 man who had been kicked to death were con- 
 victed on the evidence of two doctors, who found 
 on the boots of the accused a number of hairs 
 corresponding with the hair on the head of the 
 victim. Evidence of this kind is becoming of ex- 
 treme importance. Hardly a serious crime is 
 investigated without the application of one or
 
 FATAL LINKS. 223 
 
 other of these scientific met hods of detection, and 
 with each success the career of the criminal 
 becomes increasingly difficult and arduous, and 
 his chances of success more remote. Of remark- 
 able discoveries of crime the microscope, the 
 camera, and the spectroscope furnish the most 
 subtle instances, and it is quite possible thai 
 before long other methods of investigation, 
 founded on the most recent scientific achieve- 
 ments, will also be brought into operation. The 
 phonograph and the Rontgen rays are only wait- 
 ing their turn to serve in the cause of justice.
 
 postmortem trials. 
 
 By George Neilson. 
 
 IT might be thought that a man's death made 
 an end of him, and that his mere body had 
 no rights or duties except that of getting decently 
 buried. The middle age had other ideas. The 
 dead still had status and duties. Continental 
 laws recognised acts of renunciation in which a 
 widow laid the keys on her husband's corpse, or 
 tapped his grave with the point of a halberd. 
 The body of a murdered person, or, it might be 
 his hand merely, might be carried before the 
 judge to demand vengeance. # By English 
 thirteenth century law t legal possession of real 
 estate was thought to remain in a man, not until 
 he died, but until his body was borne forth to 
 burial. The dead might be a very potent witness, 
 as shewn by the ordeal of bier-right, J a practice 
 founded on the belief that the murderer's touch 
 
 * " Micheleb's History of France," viii., ch. I. " Cherucl's Diction- 
 naire des Institutions," art. " Cadavre." 
 
 t" Pollock and Maitland's History of English Law," ii., 60. 
 Bracton 51b, 262. 
 
 + " Lea's Superstition and Force" (ed. 1892), 359-70.
 
 POST MORTEM TRIALS. 225 
 
 would cause the victim's wounds to bleed afresh. 
 Thus variously qualified to act as witness or 
 prosecutor as occasion required, it is not 
 surprising to find the dead as defendant also. 
 
 English history* remembers the strange scene 
 enacted in the monastery of Caen in L087, when 
 William the Conqueror lay dead there, and the 
 ceremonials of his interment were interrupted by 
 a weird appeal. Ascelin, the son of Arthur, loudly 
 claimed as his, neither sold nor given, the land on 
 which the church stood, and, forbidding the 
 burial, he appealed to the dead to do him justice. 
 More than one t old English poem turned its 
 plot round the ancient canon law, by which a 
 burial might be delayed for debt. The dead was 
 arrestable : a law afterwards set aside, "for death 
 dissolved all things." But in more codes than one 
 death did not dissolve liability for the con- 
 sequences of high treason. 
 
 In Scotland,! in the year 1320, at the " black 
 parliament" of Scone, several Scotsmen were 
 convicted of conspiracy against King Robert the 
 
 * "Roman de Rou," ii., 9320-40. 
 
 t " Three Metrical Romances" (Camden Socy.), xxvi., 33. See 
 "Decretals of Gregory," lib. ii., tit. 28, cap. 25, qua frontt : also 
 " Lyndwood'e Provinciale," |>. 278. 
 
 ; " Rower's Scot iclironicon,'' ii., i'To. " Extracts c Cronicis," L50. 
 " Scalacronica," 144. 
 
 15
 
 226 LEGAL LORE. 
 
 Bruce. Most of them were drawn, hanged, and 
 beheaded. But a Scottish historian of the time 
 tells us that Roger of Mowbray, one of the 
 accused, having died before his trial, "his body 
 was carried to the place, convicted of conspiracy, 
 and condemned to be drawn by horses, hung on 
 the gallows, and beheaded." It is to the credit 
 of Bruce that he did not allow the corporal part 
 of the sentence to be carried out, although many 
 entries in the charter rolls # shew that the 
 consequent escheats of the traitor's lands served 
 to reward the loyalty of others. His body 
 convicted of conspiracy ! How came this 
 singular procedure into Scottish practice ? 
 
 In England, towards the close of the fourteenth 
 century, although escheats were not less keenly 
 looked after than in Scotland — and that sometimes 
 in cases t where men had died unconvicted, — the 
 purpose of attainder appears to have been effected 
 without the expedient of calling the dead to the 
 bar. The dead, however, was convicted. In the 
 case of Robert Plesyngton, J for instance, in 1397, 
 the judgment of Parliament bore an express con- 
 viction of treason, " noun-obstant la mort de (lit 
 
 * "Robertson's Index," 5, 10, 12, 19, 20, 21. 
 t " Rolls of Parliament," ii., 335. 
 % " Rolls of Parliament," iii., 384.
 
 POST-MORTEM TRIALS. 227 
 
 Roberd." In 1400, John, Earl of Salisbury, 
 challenged for treason by Lord Morley, was 
 killed before the day appointed for the duel. 
 The court not only adjudged him a traitor,* but 
 on grounds eked out by Roman law subjected 
 his sureties in costs to his accuser — said costs 
 including the handsome fee of 100s. and twelve 
 yards of scarlet cloth to the lawyer Adam of 
 Usk.t 
 
 In all features save perhaps that of the actual 
 presence of the body in the trial, warrant can be 
 found for the Scottish practice in Roman law. 
 The offence of " majesty," or high treason, formed 
 an exception to the great humane general rule 
 that responsibility for crime ended with the 
 criminal's breath. Under the Lex Julia J death 
 was no defence to a charge of " majesty ;" proceed- 
 ings could be raised to stamp the dead man's 
 name with the brand of treason ; his kinsmen 
 might if they chose deny and defend ; but if 
 they failed to clear him his goods were confiscated 
 and his memory damned. There is in the annals 
 of Rome at least one instance § of a death- 
 
 * " Rolls of Parliament," Hi., 459. 
 t "Chronicle of Adam of Usk," pp. 44, 45. 
 
 Z "Justinian's Institutes," iv., 18. "Digest," xlviii., 4, 11. 
 " Code," ix., 8. 
 ij " Tacitus," xvi., 1 1.
 
 228 LEGAL LORE. 
 
 sentence of this sort pronounced after the accused 
 was in his grave. Nor was its scope confined 
 absolutely to high treason. The Church had a 
 quiet way of appropriating tit-bits of barbaric 
 policy for pious uses. The Emperor Theodosius * 
 said that the inquisition for heresy ought to 
 extend to death itself; and as in the crime of 
 majesty, so in cases of heresy, it should be lawful 
 to accuse the memory of the dead. The Popes 
 endorsed the analogy, t for heretics had goods, 
 which sometimes were worth forfeiting. The 
 spiritual authority however was of more moment. 
 The Church claimed the power to bind and loose 
 even after death, J and a Welsh twelfth century 
 bishop did not stand alone when he carried it so 
 far as to scourge the body of a king who had 
 died excommunicate. § On the same principle 
 dead heretics — dead before sentence of heresy- 
 were burnt. || 
 
 It was by a close following up of Roman juris- 
 prudence, with, peradventure, some added light 
 from the law and practice of the Church, that 
 
 * "Code," i., 5, 4. + "Decretals of Gregory," v., 7, 10. 
 
 X "Decretals of Gregory," v., 39, 28. "Lea's Studies in Church 
 History," 264-66. 
 § " Haddan and Stubbs's Councils," i., 393. " Lea's Studies," 384, 425. 
 
 || " Lea's Chapters from the Religious History of Spain," 372, 492,
 
 POST MORTEM TRIALS. 229 
 
 the French devised their prods au cadavre,* by 
 which the memory of a dead traitor was attacked. 
 lis special application was to lesemajesty 
 described as divine and human, the former an 
 
 elastic term coverim-- oHenccs against God and 
 religion. Allied to this latter category, though 
 not exactly of it, was the mortal sin of suicide. 
 Self-slaughter was so deeply abhorrent to 
 mediaeval thought as not only to be reckoned 
 more culpable, but to call for more shameful 
 punishment, than almost any other crime. So 
 coupling the traitor and the self-slayer in the 
 same detestation, the law assailed both by the 
 same strange post-mortem process, and (by 
 methods of reasoning which Voltaire was one of 
 the first to ridicule) consigned their souls to 
 perdition, their memories to infamy, and their 
 bodies to the gibbet, t The treatment of the 
 suicide was peculiar in its refinements of symbolic 
 shame. The body was, by the customary law 
 (for example, of Beaumont |), to be drawn to the 
 gibbet as cruelly as possible, pour monstrer 
 
 "Cheruel's Dictionnaire," and "Denisart's Collection de Deci- 
 sions, ait. '• Lesemajeste, memoire, suicide." 
 t For a curious English case of gibbebbing a suicide in 1234, see 
 
 " Maitl.nid's Bracton's Note Book," 1114: compare " Bracton," fo. 130. 
 £ " La Loy <le Beaumont" (Heims lSlil), p. 'Jtl.
 
 •230 LEGAL LORE. 
 
 Vexperience aux aultres. The very door-step of 
 the house in which he lay was to be torn up, for 
 the dead man was not worthy to pass over it. 
 Impalement, transfixture by a stake, though well 
 enough known on the continent as a punishment 
 of the living, became there and in England alike, 
 the special doom of the suicide. Yet the proces 
 au cadavre had no footing in English law, and 
 although it was already in 1320 received in 
 Scotland, we shall find reason for thinking it 
 not wholly welcome. 
 
 After the trial in 1320 before alluded to, the 
 records in Scotland are silent for over tw T o 
 centuries, and it is not until 1540 that the process 
 is heard of again. In that year # the heirs of one 
 Robert Leslie were summoned to the court of 
 parliament to hear his name and memory "delete 
 and extinct," for certain points and crimes of 
 lesemajesty, and his lands and goods forfeited to 
 the king. Legal authorities, t obviously forgetful 
 of the fourteenth century instance, follow one 
 another in the mistake of regarding Leslie's as 
 the first of its kind. The legality of the 
 
 * " Acts of Parliament, Scotland," ii., 356. 
 
 + "Mackenzie's Criminal Law," i., 6, 21-2. "Hume's Law of 
 Crimes i., 539. " Pitcairn's Criminal Trials," ii., 278. " Riddell's 
 Scottish Peerages," ii., 757-58.
 
 POST MORTEM TRIALS. 231 
 
 procedure was called in question at the time. 
 Indued, so loud was the murmur that it can still 
 be heard in the act passed to put it to silence. 
 "It is murmurit," says the enactment, "that it is 
 ane noveltie to rais summondis and move sic ane 
 actioun aganis ane persoun that is deide, howbeit 
 the commoun law directly providis the samin."* 
 The three estates of parliament therefore on the 
 motion of the lord advocate, declared unanimously 
 "all in ane voce, butt variance or discrepance," 
 that the cause was just and conform to common 
 law. In another case of the following year}; the 
 charge and judgment were enrolled in the Acts of 
 Parliament. The widow and the heir of the late 
 James Colville were summoned " to see and hear 
 that the said deceased James, whilst he lived had 
 committed the crime of lesemajesty." The de- 
 liverance of parliament as tribunal was by its 
 terms an actual sentence upon the dead — "that the 
 deceased James "lies incurrit the panis of crime 
 of lesemajeste " for which causes the court 
 decerned "the memoure of the said uniquhile 
 James to be deleit," and his possessions confis- 
 cated to the crown. 
 
 " Acts Pari. Scot.," ii., 356. t Bui- without. 
 
 X "Acts Pari. Scot.," ii., 369.
 
 232 LEGAL LORE. 
 
 Parliament which had unanimously voted the 
 procedure well based in law, found that it was 
 dangerous. It was necessary to restrict its scope. 
 In 1542, it is on parliamentary record* that 
 "the lordis thinkis the said act [i.e., of 1540], 
 ower generale and prejudiciale to all the barions 
 of this realme." This would never do :— an act 
 prejudicial to the barons ! So it became statute 
 law in 1542, that it should apply only to cases of 
 grave treason, public and notorious during the 
 offender's life, and that prosecution for the future 
 must be raised within five years after the traitor's 
 death. It was a reasonable restraint, not always 
 observed. 
 
 During the reigns of Mary and James VI. a 
 number of trials occurred in which this singular 
 process was resorted to, and in some, if not all, of 
 which the body of the dead appeared at the bar. 
 Occasionally it was embalmed for the purpose, t 
 It had been a part of the border code, prevalent on 
 the marches of England and Scotland, that an 
 accused should, although dead, be brought to 
 the place of judgment in person. In 1249, the 
 marchmen of both realms had declared the law in 
 
 * "Acts Pari. Scot.," ii., 415. 
 
 t Case of Earl of Huntly in 1562. Tytler's " Hist, of Scotland," 
 iii., 167.
 
 POST MORTEM TRIALS. 233 
 
 that sense. They said that, in any plea touching 
 life ami limb, if the defendanl died the body of 
 him should be carried to the march od the day 
 and to the place fixed between the parties, 
 because — concludes this remarkable provision* — 
 ■•n«> man can excuse himself by death.." And in 
 the end of the sixteenth century the borderers 
 had not forgotten the tradition their forefathers 
 had inherited in the thirteenth, for in 1597, when 
 Scotsmen and Englishmen were in fulfilment of 
 their treaty obligations presenting their promised 
 pledges, the custom was scrupulously observed on 
 the English side. All were there, — all, though 
 all included one that was no more, t " Though e 
 one of the nomber were dead, yet was lie brought 
 and presented at this place." They evidently 
 believed on the borders, which Sir Robert Cary 
 with some reason called J an ''uncristned 
 cuntry," that a man could best prove that he 
 was dead by attendance in person. 
 
 In trials for treason this principle was pushed 
 in some instances to strange extremes. Probably 
 one underlying reason of this, at a date so late, 
 was to make sure that no formality should be 
 
 * "Acts Pari. Scot.,"' L, 415. 
 
 t " Bain'? Calendar of Border Papers," ii., 417. 
 
 £ " Border Papers," Li., 711.
 
 284 LEGAL LORE. 
 
 lacking to make the forfeiture effective. But the 
 main reason one must believe lay in its being a 
 traditional observance. In the trial in 1600, of 
 the Earl of Gowrie and his brother for an alleged 
 attempt on the king's life, the privy council on 
 the preamble # that it was necessary to have their 
 corpses kept and preserved unburied, issued an 
 act to that effect, and the treasurer's accounts 
 contain an entry " for transporting of the corpis 
 of Growrie and his brother." Their bodies were 
 accordingly produced at the trial, and the sentence 
 which pronounced them guilty of treason and 
 lesemajesty during their lifetime, declared t their 
 name, memory, and dignity extinguished, and 
 ordained that "the dead bodeis of the saidis 
 Treatouris," should be hanged, quartered, and 
 o-ibbetted. Their "twa hedis," a grim diarist J 
 tells, were set upon the tolbooth, " thair to stand 
 quhill § the wind blaw thame away." 
 
 The last case || in the annals, in which this 
 revolting Scottish " practick " was put into effect, 
 occurred in 1609. Robert Logan, of Restalrig, 
 
 * Pitcairn's Crim. Trials," ii., 233, 241. 
 t Pitcairn, ii., 167-8. "Acts Pari. Scot.," iv., 199. 
 X " Birrel," quoted in " Pitcairn," ii., 247. § Quhill, until. 
 || For an example in 1603, that of Francis Mowbray, see " Pitcairn," 
 ii., 406-9.
 
 POST-MORTEM TRIALS. 235 
 
 had been nearly three years in his grave when it was 
 given out that he had been a party to the alleged 
 Gowrie conspiracy against King James. A 
 process* was at once taken in hand to proscribe 
 his memory and escheat his property. As death 
 was no excuse, neither was burial ; and the 
 ghastly form was gone through of exhuming the 
 bones for presentation at the trial. It was a case 
 plainly within the exception provided for in the 
 act of 1542, for the man was not " notourly " a 
 traitor, he had died in repute of loyalty : but the 
 Crown was eager for a conviction. Much 
 incredulity had been rife with regard to the 
 Gowrie conspiracy. The evidences now adduced 
 were — on the surface at any rate, although, per- 
 haps, as many critics still think, on the sur- 
 face only, — circumstantial and strong. The 
 prosecution was therefore keenly pressed, and 
 the reluctance of some of the judges over- 
 come. A jocular jurist-commentator on these 
 post-mortem trials, has remarked t that the bones 
 of a traitor could neither plead defences, nor 
 cross-question witnesses. But in the dawn of the 
 seventeenth century they could turn the sympathy 
 
 * A full account of the trial is given in " Pitcairn," ii., 276-92. 
 t Lord Hailes quoted in " Pitcairn," ii., 277.
 
 236 LEGAL LORE. 
 
 of the court against the charge, as it appears they 
 did in Logan's case. The proofs, however, looked 
 overwhelming, and the forfeiture was carried 
 without a dissenting voice from the bench — from 
 the bench, because it was, as all Scots treason- 
 trials then were, a trial by judges only, not by 
 judge and jury. Logan's memory was declared 
 extinct and abolished, and his possessions 
 forfeited. The judgment, however, wreaked no 
 vengeance on the exhumed remains. Humanity 
 was asserting itself even in the trial of the dead, 
 and that institution itself was doomed. Although 
 in disuse ever after, it did not disappear from the 
 theory of law until 1708, when the act 7 Anne, 
 chapter 21, prescribing jury-trial for treason, 
 assimilated the Scots law on the subject to that 
 of England, and thus brought to an unregretted 
 end one of the most gruesome of legal traditions.
 
 3siairt Xaws. 
 
 B \ Cuming Wa lters. 
 
 A VKRY curious and interesting phase of 
 L V. self-government is that which is supplied 
 by the independent Legal system established in 
 
 various small islands in the United Kingdom. 
 It is amusing to notice these little communities 
 on rocky islets tenaciously preserving their ancient 
 privileges, and revelling in the knowledge that they 
 have a code of their own by no means in harmony 
 with the statute law of the country of which they 
 are an insignificant part. The tribunals and the 
 legal processes in the Channel Islands, in the 
 Scilly Islands, in the Isle of Man, and even in 
 some of the smaller islands round the English 
 coast, differ entirely from those established in 
 the motherland ; and any suggestion of change is 
 warmly resented. In many cases it has not, of 
 course, been worth while to insist on reform, inas- 
 much as the islands are inhabited only by a few 
 families, who may be left in peace to settle their 
 own differences if any occur.
 
 238 LEGAL LORE. 
 
 There are a great many scattered islets about 
 the sinuous line of Irish coast, very few of which 
 are ever visited by strangers. The conditions of 
 life in these isolated places are seldom investigated, 
 and yet we find there are some remarkable sur- 
 vivals of old customs and relics of ancient laws. 
 The people are independent, because they feel 
 they are totally separated from the mainland, and 
 possess neither the means nor the desire to cross 
 over to it. They are in many respects a race by 
 themselves, and their attachment to their little 
 homes of rock is such that one of their severest 
 punishments for offenders is to transport them to 
 Ireland. Such an island is Raghlin, or Rathlin, 
 six miles distant from the north-west of Antrim, 
 but might be six hundred miles, judging by the 
 slight intercourse the handful of inhabitants has 
 with the larger world. Another such island is 
 Tory, ten miles from the Donegal coast, where up 
 to a few years ago the dwellers were unacquainted 
 with any other law than that of the Brehon code. 
 A visitor in 1834 found them choosing their own 
 judge, and yielding ready obedience to mandates 
 " issued from a throne of turf." In this case, and 
 in the case of the Cape Clear islanders, it was 
 found that the threat of banishment to the main-
 
 ISLAND LAW'S. 239 
 
 land was severe enough to prevent serious crime. 
 These feelings probably have been modified in 
 
 more recent times, yet the intensity of the attach- 
 ment of islanders to their native rock is one of the 
 ineradicable characteristics which account for the 
 sturdy independence manifested in their laws and 
 customs. Their little homes are miniature worlds 
 which they prefer to govern themselves in their 
 own way. We may take the Scillies as a 
 favourable example, where the natives cling to 
 the system of civil government by twelve principal 
 inhabitants forming a Court presided over by a 
 military officer. The Court is held every month, 
 and it has jurisdiction in civil suits and minor 
 causes. The Sheriff for Cornwall has, or, at all 
 events, had, no jurisdiction in the islands, 
 though persons prosecuted for felonies (which are 
 extremely rare) have to be relegated to the 
 Assizes at Launceston. 
 
 The patriarchal system has always been much 
 in evidence in the small Scotch islands, which, for 
 the most part, are the possessions of the des- 
 cendants of feudal chieftains. Dr. Johnson 
 adverted to this fact on the occasion of his 
 famous journey in the North: — "Many of the 
 smaller islands have no legal officers within them.
 
 •210 LEGAL LORE. 
 
 I once asked, if a crime should be committed, by 
 what authority the offender could be seized, and 
 was told that the laird would exert his right ; a 
 right which he must now usurp, but which merely 
 necessity must vindicate, and which is therefore 
 yet exercised in lower degrees by some of the 
 proprietors when legal process cannot be ob- 
 tained." But after observing how the system 
 operated, Dr. Johnson freely admitted that when 
 the lairds were men of knowledge and virtue, the 
 convenience of a domestic judicature was great. 
 Owino- to the remoteness of some of the islands 
 and the difficulty of gaining access to others, it 
 was scarcely possible to bring them under the 
 common law, and we find that in some instances 
 the proprietors were allowed to act as magistrates 
 by the Lord-Lieutenant's commission. Some of 
 the old lairds had a very effective but unjudicial 
 method of enforcing their laws. Lord Seaforth, 
 Hio-h Chief of Kintail, was anxious to abolish a 
 very odious custom of woman-servitude which 
 prevailed in the island of Lewis. The men were 
 wont to use the women as cattle, compelling them 
 to draw boats like horses, and, among other things, 
 to carry men across the deep and dangerous fords 
 on their backs. This practice greatly disgusted
 
 ISLAND LAWS. 241 
 
 Lord Seaforth, who found, however, that it was 
 one particularly hard to check. Ho arrived one 
 day on horseback at a stream which a peasant 
 was contentedly crossing, mounted on a woman's 
 shoulders. Winn the middle of the stream was 
 reached, the laird urged his horse forward, and 
 came up with the couple, when by vigorously 
 laying his whip about the back of the man, he 
 compelled him to dismount, and wade as best he 
 could to the opposite bank. This practical indica- 
 tion of the laird's wishes aided considerably in 
 producing a change. 
 
 The Scotch islanders are a law-abiding people, 
 and patriarchal government sufficed. It was re- 
 corded of the inhabitants of Skye that, during a 
 period of unusual distress and semi-starvation, not 
 a single sheep was stolen. So keen is the sense 
 of propriety in that island that a whole family 
 has been known to slink away, unable to bear 
 the disgrace brought upon them by an individual 
 delinquent. Orkney and Shetland once possessed 
 all the characteristics of a separate kingdom, the 
 laws of no other countries being imposed upon 
 them. There was none to dispute the laird's 
 right, and legal administration was entirely in his 
 
 hands, except for the period that the islands 
 
 16
 
 242 LEGAL LORE. 
 
 were placed under episcopal rule. It is worth 
 noting that the most famous of the governing 
 bishops, Robert Reid (tempus 1540), also filled 
 the hio-h office of President of the Court of 
 Session at Edinburgh, and he and his successors 
 are said to have ruled with conspicuous mildness 
 and equity. 
 
 We may now turn to one or two English 
 islands before devoting attention to the most 
 important examples of all — those supplied by the 
 Isle of Man and the Channel Islands. The Isle 
 of Wight is only regarded as " separate " from 
 Hampshire for one legal purpose, so far as I have 
 been able to ascertain. It is part of the " county 
 of Southampton " for all purposes except the 
 land-tax payment : for this it has a separate 
 liability. But the land-tax divisions are the 
 most irregular, and the least uniform of any legal 
 divisions in the country, and it is therefore not 
 surprising that the Isle of Wight should in this 
 respect be subject to peculiar usage. Purbeck is 
 one of those "isles" in England which now 
 depend more upon tradition for their designation, 
 than natural accordance with the geographical 
 definition. What is remarkable is that these 
 "isles" — such as the Isle of Purbeck, the Isle of
 
 ISLAND LAWS. 243 
 
 Ely, the Esle of Glastonbury, and the Isle of 
 Meare — nearly all have certain well-establish«d 
 and recognised laws of their own for the little 
 communities which dwell within their borders. 
 The (juarrynien of Purbeck consider themselves a 
 race apart, and their guild is one of the closest 
 and strictest character. Their homage is paid 
 exclusively to the lord of the manor, and the 
 " Marblers " claim to have received a special 
 charter from King Edward. On Shrove Tuesday 
 they elect their officers, and celebrate the occasion 
 by kicking a football round the boundaries. One 
 ancient custom observed on these occasions is to 
 carry a pound of pepper to the lord of the manor, 
 as an acknowledgement to him in respect to a 
 "right of way." Until comparatively recent 
 times the government of the island was patri- 
 archal in character. The Isle of Glastonbury 
 had its " House of Twelve Hides " for the trial of 
 petty cases in the locality, and tradition reports 
 that unusually large dungeons were prepared for 
 the immuring 1 of those who offended in the 
 renowned Avalonian isle. 
 
 The Isle of Man, when subject to the Kings of 
 Norway, was a subordinate feudatory kingdom. 
 It afterwards came under the dominion of the
 
 244 LEGAL LORE. 
 
 English Kings, John and Henry III., but passed 
 afterwards to the Scotch. Henry IV. eventually 
 claimed the little isle, and disposed of it to the 
 Earl of Northumberland, but upon this famous 
 nobleman's attainder it went to Sir John de 
 Stanley. Its government seemed destined to be 
 unsettled, however, and though the title of king 
 was renounced by the possessors of the land, they 
 maintained supreme and sovereign authority as to 
 legal process. In the Isle of Man no English 
 writ could be served, and as a result it became 
 infested with smugglers and outlaws. This was 
 unsatisfactory, and, in 1765, the interest of the 
 proprietor was purchased, in order that the island 
 should be subject to the regulations of the British 
 excise and customs. 
 
 According to Blackstone, than whom there 
 could be no greater authority, the Isle of Man is 
 "a distinct territory from England, and is not 
 governed by our laws ; neither doth an Act of 
 Parliament extend to it unless it be particularly 
 named therein." It is consequently a convenient 
 refuge for debtors and outlaws, while its own 
 roundabout and antiquated methods of procedure 
 have been found to favour the criminal rather 
 than to aid prosecutors and complainants." Per-
 
 [SLAND LAWS 245 
 
 haps this was never more vividly illustrated than 
 in the n ri nt ease <>f thu murderer Cooper, who 
 profited by the cumbrous and lenient processes of 
 Manx law to the extent of > -fit in**' an atrocious 
 
 o o 
 
 (•rime reduced to manslaughter. The laws have 
 often been amended. Prior to 1417 they were 
 " locked up in the breasts of the Deemsters," but 
 Sir John Stanley found that so much injustice 
 was being done under the pretence of law, that he 
 ordered a promulgation to be made. But "breast 
 laws " continued to be administered for another 
 two centuries, until Lord Strange, in 1G3G, com- 
 manded that the Deemsters should " set down in 
 writing, and certify what these breast laws are." 
 In 1777, and also in 1813, the laws of the island 
 were again amended, and every criminal was 
 allowed three separate and distinct trials before 
 different bodies. First the High Bailiff hears his 
 case, then the Deemster and six jurymen, and, 
 thirdly, if he has been committed for trial, he is 
 brought before the Governor and the Deemsters. 
 By the time the case gets to the final court it has 
 usually been " whittled down " to the smallest 
 possible proportions, and doubts have often been 
 raised whether justice is not marred by misplaced 
 and unwarranted lenity. Another strange prac-
 
 2-16 LEGAL LORE. 
 
 tice is that the Manx advocates combine the parts 
 of barrister and attorney. The law is hard upon 
 debtors, who can be lodged as prisoners in Castle 
 Rushen, if it is suspected that they are about to 
 leave the island ; but there are no County Courts. 
 On the other hand, there are Courts of Law of 
 almost bewildering variety— the Chancery Court, 
 the Admiralty, the General Gaol Delivery, the 
 Exchequer, the Ecclesiastical, the Common Law, 
 the two Deemsters' Courts for the north and 
 south of the island, the Seneschal's Court, the 
 Consistorial, the Licensing, and the High Bailiff's. 
 Each sheading, or subdivision, has its own coroner 
 or sheriff, who can appoint a "lockman" as his 
 deputy ; and each parish (there are seventeen) 
 has its own captain and a " sumner," whose duty 
 in old times was to keep order in church and 
 "beat all the doggs." Manx law had, and per- 
 haps to some extent still has, a similar reputation 
 either for allowing criminals in the island to 
 escape easily, or for permitting English criminals 
 to remain unpunished ; hence the old ribald verse 
 which represents the Devil singing — 
 
 " That little spot I cannot spare, 
 For all my choicest friends are there." 
 
 The Deemster's oath is a curiosity in itself: —
 
 ISLAND LAWS. 247 
 
 "I do swear that 1 will execute the laws of the 
 isle justly betwixt party and party as indifferently 
 as the herring's backbone cloth lie in the midst of 
 the fish." Formerly the elective House of Keys 
 possessed judicial as well as legislative functions, 
 but this power was taken from it by the Act of 
 18GG. Laws are initiated in the Council and the 
 Tynwald Court, which promulgates them, consists 
 of the members of the Council, and the House of 
 Keys, who unite for the occasion. Tynwald Day 
 as described by Mr. Hall Caine is an interesting, 
 historic, but not an impressive ceremony. A 
 thousand years ago the Norsemen established a 
 form of government on the island, and every fifth 
 of July the Manxman has his open-air Parliament 
 for the promulgation of laws. But it is a gala 
 day rather than a day of business. " Reluctantly 
 I admit," writes Mr. Hall Caine, " that the pro- 
 ceedings were, in themselves, long, tiresome, 
 ineffectual, formless, unimpressive, and unpic- 
 turesque. The senior Deemster, the amiable and 
 venerable Sir Wm. Drinkwater, read the titles 
 of the new laws in English. Then the coroner of 
 the premier sheading, Glenfaba, recited the same 
 titles in Manx. Hardly anybody heard them; 
 hardly anybody listened."
 
 248 LEGAL LORE. 
 
 The Channel Islands were part of the Duchy of 
 Normandy, and their laws are mostly the ducal 
 customs as set forth in an ancient book known as 
 " Le Grand Coustumier." Acts of the English 
 Parliament do not apply to these Islands unless 
 specifically mentioned, and all causes are deter- 
 mined by their own courts and officers. In Mr. 
 Ansted's standard work on the Channel Islands 
 (revised and edited by E. Toulmin Nicolle, 1893), 
 a long chapter is devoted to the whole subject, 
 and it is so complete and well expressed that I 
 venture without much alteration of phraseology 
 to summarise its leading points. Jersey and 
 Guernsey have diverged greatly from each other 
 in their legal customs, and it is also curious to 
 find that each of the smaller islands possesses its 
 own particular constitutions and courts. The 
 rights and customs of the " States," which are an 
 outcome of the mediaeval Royal Court, have 
 constantly undergone modification and have been 
 remodelled, but they retain many of the ancient 
 characteristics. The Bailiff (Bailli), or chief 
 magistrate, is the first civil officer in each island, 
 and usually retains his office for life. He presides 
 at the Royal Court, takes the opinions of the 
 elected Jurats, and when their voices are equal
 
 ISLAND LAWS. 249 
 
 has a casting vote both in civil and criminal c 
 The Bailiff is not required either in Jersey or 
 Guernsey to have had a legal education. He is 
 appointed by the Crown, but has usually held 
 some position at the island bar. Formerly the 
 advocates practising in the court of Jersey were 
 nominated by the Bailiff, and were limited to six 
 in number. In I860, however, the bar was thrown 
 open to every British subject who had been ten 
 years resident in the island, and who was qualified 
 by reason of being a member of the English bar, 
 having taken a law degree at a French University, 
 and having passed an examination in the island. 
 In Guernsey the advocates are also notaries, and 
 frequently hold agencies. The judicial and legisla- 
 tive powers in Jersey are to some extent separate, 
 but in Guernsey they are intimately associated — 
 a fact which accounts for much of the difference 
 in custom in the two islands. 
 
 The ancient Norman law contained in " Le 
 Grand Coustuinier " dates back to the thirteenth 
 century, was badly revised in the time of Queen 
 Elizabeth, and became the Code. Trial by jury was 
 established in 1786, and the laws on the subject 
 have undergone considerable change. There is a 
 committing magistrate, and the trial takes place
 
 250 LEGAL LORE. 
 
 at the Criminal Assizes of which there are six 
 in the year. The jury numbers twenty-four ; if 
 twenty agree, the verdict is taken ; if less than 
 twenty the prisoner is set free. Minor offences 
 are referred to a court of Correctional Police 
 presided over by a magistrate who is independent 
 of the Royal Court. The same magistrate pre- 
 sides over the court for the recovery of small 
 debts, and there is no appeal from his decision. 
 Then there are subsidiary courts for various police 
 purposes, while the Court of Heritage entertains 
 suits regarding real estate. The arbitrary opera- 
 tion of these Courts may have very evil results, 
 especially for strangers who are unlearned in the 
 peculiarities of Jersey law. I find a striking 
 example of this in a magazine of June 15th, 1861, 
 in which a hard experience is detailed with 
 comments which appear to be fully justified by 
 the circumstances. The writer says :— 
 
 "Before leaving England I had had a serious 
 quarrel with a former friend and medical attendant, 
 and no long time elapsed after our arrival in the 
 island, before this gentleman sent me in a bill 
 of monstrous proportions — a true ' compte 
 d'apothecaire ' as the French express it. At that 
 time I was quite ignorant of the singular con-
 
 ISLAND LAWS. 251 
 
 stitution of Jersey law, and how it placed me in 
 the power of any man who chose fco sue me 
 whether I owed him money or not. I wrote to 
 the doctor, refusing to pay the full amount of his 
 claim, and referring him to a solicitor in London. 
 He was, however, better acquainted with the 
 Jersey law than myself, as the result will show. 
 Here, before proceeding with my story, I will 
 enter into some explanation of the law of debtor 
 and creditor as it exists in Jersey. This law 
 enables the creditor to enforce his demands 
 summarily, depriving the party sued of his liberty, 
 and leaving him in o-aol till the costs of his 
 imprisonment have swelled the amount to be paid : 
 and further, supposing the defendant ultimately 
 gains his suit, and proves his non-liability, no 
 damages for false imprisonment are obtainable. 
 The law leaves him no remedy, for the plaintiff 
 makes no affidavit ; and a simple letter from 
 England, requesting a Jersey advocate to enforce 
 payment of a claim, is enough to cast the defendant 
 at once into prison, prior to any judicial investiga- 
 tion into the merits of his case. 
 
 " Thus, in Jersey, every man (unless he be a 
 landed proprietor) is at the mercy of every other 
 man, both in the island and out of it. In short,
 
 252 LEGAL LORE. 
 
 one man can arrest another simply by drawing up 
 an imaginary account on a common bit of paper, 
 and handing it to the nearest lawyer, who will 
 send his clerk with the sheriff's man and imprison 
 the unfortunate victim in default of immediate 
 payment. What is worse still, an arrest can be 
 carried into effect, by means of a simple letter 
 sent through the post. The exception in favour 
 of land-owners of course includes the owners of 
 house property, an exception which mostly benefits 
 Jersey-men, as few but natives possess property 
 in the island. It is only a proprietor who must 
 be sued before he can be imprisoned. If the 
 Jersey laws confined the persons merely of 
 strangers sued by the inhabitants of the island, 
 in the arbitrary manner described, the justice of 
 such a practice might still be defended on the 
 plea of preventing them from leaving the island ; 
 but no excuse can be found when the Jersey law 
 is made an instrument in the hands of strangers, 
 living out of the jurisdiction of the island, and 
 when it is used to enforce payment of debts 
 incurred in another place, and in which no in- 
 habitant of the island is interested, and when (as 
 sometimes happens) it is employed as a means of 
 extortion. In the first case it can be ur^ed that,
 
 TSLAND LAW'S. 253 
 
 at least, it gives protection to the islander, which 
 may be all proper enough, though the system is 
 liable to abuse. In the second, the injustice and 
 folly of the law is flagrant. By what right or 
 reason ought the Jersey code, without previous 
 inquiry, to deprive one man of his liberty at the 
 demand of another, when both are strangers, and 
 when the dispute relates to matters wholly beyond 
 its pale, and in reference to which it has no 
 means of obtaining information on oath ? Yet 
 such is the case, and thus the Jersey law is 
 converted into a mere tool of iniquity and 
 oppression. In speaking of this strange anomaly 
 in Jersey law, I am not referring to bills of 
 exchange, or to securities of any sort, but merely 
 to simple debts, free from any acknowledgment 
 or signature whatever. In any other Court, such 
 claims would not be entertained for a moment. 
 Surely the law is barbarous enough for the people 
 of Jerse}^, without its consequences being extended 
 beyond its circumference. But, as matters stand 
 at present, the case stands thus : A and B fall 
 out together. Now B is a rogue. They go to 
 law together, and B demands of A more than he 
 is entitled to. The courts in England are about 
 to decide upon the merits of the case. Meanwhile
 
 254 LEGAL LORE. 
 
 B learns that A is gone to Jersey for a short time 
 on business, perhaps connected with this very 
 affair, such, for instance, as looking up an important 
 witness. What does B do? He immediately sends 
 off a letter enclosing his little account to a Jersey 
 lawyer, instructing him to demand payment or lock 
 up A forthwith. The lawyer obeys, of course ; A 
 storms — protests — all in vain. He is incarcerated, 
 and is told he may explain as much as he likes 
 afterwards ; but, in the meantime, must go to 
 prison, or 'pay. At last poor A, whose liberty is 
 important to him, wearied with the delays which 
 it is the interest of the Jersey lawyers to raise in 
 his suit for judgment, pays the demand into court 
 (au greffe) to be adjudicated on — costs of law 7 , 
 costs of imprisonment and all. The latter item 
 includes 10s. every time the prison door is opened 
 to let him pass on his way to court — a journey he 
 has too often to perform without much approach 
 to a denoument, and whither he is obliged to go 
 under escort like a criminal ; and this process is 
 repeated several times, without the cause even 
 beino- called on for hearing. Worst of all, when A 
 comes out, he has to decide upon the merits of the 
 case. Meanwhile no remedy against B, who, of 
 course, being satisfied, withdraws his suit at home."
 
 ISLAND LAWS. 
 
 250 
 
 Another .seeming anomalous process may be 
 cited. An appeal lies from some of the small 
 Courts to the full Court, or Nombre SupSrieur, 
 but the jurats who sit in the Court of First 
 Instance are not debarred from sitting in the Full 
 Court when an appeal from their own judgment 
 is being heard ! All the proceedings are carried 
 on in the French language, which is again ex- 
 tremely inconvenient for the English residents. 
 The Bailiff comments on the evidence and on the 
 arguments of the pleaders, collects the opinion of 
 the jurats, and delivers judgment. In Guernsey 
 the decisions are given in private. " Pleadings 
 in these courts are very simple," says Mr. Ansted. 
 " The plaintiff must serve on the defendant a 
 summons or declaration, setting forth the nature 
 of his claim, and in some cases the reasons on 
 which it is grounded are added. If not sufficiently 
 definite the declaration is sent back by the Court 
 for amendment. If the defendant means to plead 
 any objections by way of demurrer or special plea, 
 these are at once heard and disposed of. If the 
 parties join issue on the merits of the case, the 
 Court hears the parties, or their counsel, and 
 decides. If the case be intricate the parties are 
 sometimes sent before the Greffier — in Guernsey
 
 256 LEGAL LORE. 
 
 before one of the jurats, — who reports, condensing 
 the matter in dispute, and presenting the points 
 to the court for decision." Trial by jury does not 
 exist in Guernsey. The court at Alderney is 
 subordinate to that of Guernsey. The jurisdiction 
 in matters of correctional police is final where the 
 offence can be punished by a month's imprison- 
 ment or a fine not exceeding £5 ; otherwise it is 
 referred to Guernsey for trial. The Court of Sark, 
 which has undergone many strange vicissitudes 
 sinceits institution in 1579, consists of the seneschal, 
 or judge, the prevot and the greffier, all appointed 
 by the feudal lord, or seigneur. The seneschal is 
 an absolute authority in small cases, but his right 
 of punishment is limited to the narrow bounds of 
 inflicting a fine of about four shillings, and of 
 sentencing to three days' imprisonment. All 
 cases demanding severer treatment are relegated 
 to the Guernsey Courts. Enough has been said 
 to show that Mr. Ansted was justified in declaring 
 that though the islanders were unfitted by their 
 habits and education for any radical change in 
 their peculiar institutions, yet "the practice of 
 the law courts both in Jersey and Guernsey has 
 long been felt to be in many cases cumbrous, not 
 to say objectionable. Indeed, where so much
 
 ISLAND LAWS. 257 
 
 that is personal interferes in the administration of 
 
 justice, and where personal and family influence 
 cannot hut he felt, it is not astonishing that 
 reasonable complaints are sometimes heard." 
 Three times during the present century Royal 
 Commissions have enquired into Jersey law, but 
 their recommendations have been systematically 
 ignored. No remedies have been carried out, and 
 the islanders cling with extraordinary pertinacity 
 to customs which are notoriously abused and to 
 priveleges which are opposed to fair-dealing. 
 The Channel Islands and the Isle of Man are 
 standing evidence of the danger incurred by such 
 independence of legal authority as they have 
 hitherto been permitted to enjoy. 
 
 17
 
 Gbc Xittle 3nns of Court. 
 
 THE origin of the decadent institutions 
 located in certain grim and dreary-looking 
 piles of building dotting the district of the Inns 
 of Court proper, and known as the little Inns of 
 Court, is involved in considerable obscurity. 
 They appear to have originally held a similar 
 position to the great seats of legal education as 
 the halls of Oxford and Cambridge do to the 
 Universities. But at the present time their 
 relation to the Inns of Court proper is not very 
 clear, and the uses they serve, otherwise than as 
 residential chambers, are just as hard to discover. 
 This state of mistiness concerning them has 
 existed so long that no one now seems to know 
 anything about them, and the evidence taken 
 more than forty years ago by a Royal Commission 
 did so little to clear away the dust and cobwebs 
 hanging about them that they still remain, in the 
 words of Lord Dundreary, " things that no fellow 
 can understand." 
 
 Lyon's Inn has since that time been swept
 
 THE LITTLE INNS OF COURT. 259 
 
 away to make room tor the new Court-; of Law, 
 without any person evincing the smallest interesl 
 in its late. Concernino- this institution all that 
 could be learned by the Royal Commission was 
 contained in the evidence of Timothy Tyrrell, 
 who " believed " that it consisted of members or 
 "ancients," he could not say which ; he believed 
 the terms were synonymous. There were then 
 only himself and one other, and within his 
 recollection there had never been more than five, 
 and they had nothing to do beyond receiving the 
 rents of the chambers. There were no students, 
 and the only payment made on account of legal 
 instruction was a sum of £7 13s. 4d. paid to the 
 society of the Inner Temple for a reader ; but 
 there had been no reader since 1832. He had 
 heard his father say that the reader " burlesqued 
 the things so greatly" that the ancients were 
 disgusted, and would not have another. There 
 was a hall, but it was used only by a debating- 
 society ; and there was a kitchen attached to it, 
 but he had never heard of a library. 
 
 New Inn appears to have been somewhat more 
 alive than Lyon's, though it does not seem to 
 have done any more to advance the cause of legal 
 education. The property is held under the
 
 260 LEGAL LORE. 
 
 society of the Middle Temple, by a lease of three 
 hundred years from 1744, at a rent of four pounds 
 a year. Among the stipulations of the lease is 
 one allowing the lessors to hold lectures in the 
 hall, but none had been held since 1846, in 
 consequence, it was believed, of the Middle 
 Temple ceasing to send a reader. The lectures 
 never numbered more than five or six in a year ; 
 and there is now no provision of any kind for 
 legal education. Samuel Brown Jackson, who 
 represented the inn before the Royal Commission, 
 said he knew nothing concerning any ancient 
 deeds or documents that would throw any light 
 on the original constitution and functions of the 
 body. If any there were, he "supposed" they 
 were in the custody of the treasurer. The only 
 source of income was the rents of chambers, 
 which then amounted to between eighteen and 
 nineteen hundred pounds a year ; and the ancients 
 have no duties beyond the administration of the 
 funds. 
 
 Concerning the origin of Clement's Inn, 
 Thomas Gregory, the steward of the society, was 
 unable to afford full information, but he had seen 
 papers dating back to 1677, when there was a 
 conveyance by Lord Clare to one Killett,
 
 THE LITTLE INNS OF COURT. 261 
 
 followed by a Chancery suit between the latter 
 and the principal and ancients of the society, 
 which resulted in a decree under which the 
 property so conveyed became vested in the inn. 
 Some of the papers relating to the inn had been 
 lost by fire, and "some of them," said the witness, 
 "we can't read." The inn, he believed, was 
 formerly a monastery, and took its name from 
 St. Clement. It had once been in connection 
 with the Inner Temple, but he could find no 
 papers showing what were the relations between 
 the two societies, "except," he added, "that a 
 reader comes once a term, hut that was dropped 
 for twenty years — I think till about two or three 
 years ago, and then we applied to them ourselves, 
 and they knew nothing at all about it ; the 
 under-treasurer said he did not know anything 
 about the reader, and had forgotten all about it." 
 It was the custom for the Inner Temple to 
 submit three names to the ancients ; and, said the 
 witness, " we chose one ; but then they said that 
 the gentleman was out of town, or away, and that 
 there was no time to appoint another." But no 
 great loss seems to have resulted thereby to the 
 cause of legal education, for it appears that all a 
 reader had ever done was to explain some recent
 
 262 LEGAL LORE. 
 
 Act of Parliament to the ancients and commoners, 
 there being no students. The inn had no library 
 and no chapel, but as a substitute for the latter 
 had three pews in the neighbouring church of St. 
 Clement, and also a vault, in which, said the 
 witness, "the principals or ancients may be 
 buried if they wish it.' : 
 
 Some remarkable evidence was given concern- 
 ing Staples Inn, and the more remarkable for 
 being given by Edward Rowland Pickering, the 
 author of a book on the subject, which publication 
 one of the Commissioners had before him while 
 the witness was under examination. " You state 
 here," said the Commissioner, "that in the reign 
 of Henry V., or before, the society probably 
 became an Inn of Chancery, and that it is a 
 society still possessing the manuscripts of its 
 orders and constitutions." " I am afraid," replied 
 the witness, "that the manuscript is lost. The 
 principal has a set of chambers which were burnt 
 down, and his servant and two children were 
 burnt to death, seventy years ago ; and I rather 
 think that these manuscripts might be lost." 
 Where the learned historian of the inn had 
 obtained the materials for that work is a question 
 which he does not appear to have been in a
 
 THE LITTLE INNS OF COURT. 263 
 
 position to answer; for when asked whether lie 
 knew of any trace of a connection between ill'' 
 society and an Inn of Court, he replied, 
 " Certainly, I should say not. h is sixty years 
 since I was there, boy and all." A very strange 
 answer considering the statement in his book. 
 During the sixty years he had been connected or 
 acquainted with the society, he had never heard 
 of the existence of a reader, or of any association 
 of the inn with legal education or legal pursuits. 
 The only connection claimed for the inn by the 
 principal, Andrew Snape Thorndike, was that, 
 when a serjeant was called from Gray's Inn, that 
 society invited the members of Staples Inn to 
 breakfast. There is a singular provision respect- 
 ing the tenure of chambers in this inn by the 
 ancients. "A person," said this witness, "holds 
 them for his own life, and though he may be 
 seventy years of age, if he can come into the 
 hall, he may surrender them to a very young 
 man, and if that young man should live he may 
 surrender them again at the same age." If a 
 surrender is not made, the chambers revert to the 
 society. 
 
 Barnard's Inn is a very old one, and the 
 property has been held on lease from the dean
 
 264 LEGAL LORE. 
 
 and chapter of Lincoln for more than three 
 hundred years. The society consists of a 
 principal, nine ancients, and five companions, 
 which latter are chosen by the ancients ; but we 
 fail to gather from the evidence of Charles 
 Edward Hunt, treasurer and secretary of the inn, 
 by what principles the ancients are guided in the 
 selection. We learn, however, that applications 
 for admission by solicitors are not allowed. Such 
 a thing had occurred once, but it was as long ago 
 as 1827, and "of course," said the witness, "we 
 refused him, and he applied to the court, and 
 after some difficulty he got a rule nisi for a 
 mandamus. It came on to be tried before Lord 
 Tenterden, and Lord Tenterden said it could not 
 be granted ; that we were a voluntary association, 
 and the court had no jurisdiction." The applicant 
 seems to have based his claim on the ground that 
 Barnard's was an Inn of Chancery, and that, as a 
 solicitor, he had a right to be admitted. The 
 matter was scarcely worth contention, as the 
 privileges of the companions are confined to 
 dining in hall and the chance of being made an 
 ancient, that favoured grade being entitled to 
 " their dinners and some little fees." The books 
 of the society showed no trace of there ever
 
 THE LITTLE INNS OF COURT. 265 
 
 having been any students of* law connected with 
 the inn. "The oldest thing 1 find," said the 
 witness, "is that a reader came occasionally from 
 Gray's Inn to read; but what he read about, or 
 who paid him, there is no minute whatever." 
 He did not know when a reader last came from 
 Gray's Inn; he thought it was about two 
 hundred years ago. It only remains to be told of 
 Barnard's Inn that it has not even a library ; 
 there had been a few books at one time, the 
 witness told the Commission, but they were sold 
 as useless ! 
 
 Concerning the remaining little inns — Clifford's, 
 Symond's, and Furnival's — no evidence was taken. 
 They appear to be merely residential chambers, 
 much the same as some of those concerning which 
 we have information in the report of the Royal 
 Commission and the evidence given before it, and 
 the chambers are far from being used exclusively 
 by members of the legal profession. Nearly 
 sixty years ago the present writer found a retired 
 army officer occupying chambers in Clifford's, 
 and on a later occasion made at Symond's Inn, 
 the acquaintance of a curate who resided there 
 with his wife and a young family ! Concerning 
 Furnival's Inn, it was incidentally stated by
 
 266 LEGAL LORE. 
 
 Michael Doyle, who represented Lincoln's Inn 
 before the Royal Commission, that the latter 
 society received £576 a year under a lease of the 
 former property granted to the late Henry Peto 
 for ninety-nine years, £500 being for rent, and 
 the remainder in lieu of land tax. The witness 
 was, however, unable to give any information as 
 to the manner in which, or the date when, the 
 property was acquired by Lincoln's Inn. 
 
 The inquiry by the Royal Commission resulted 
 in the recommendation of some very important 
 changes in the constitution of the little Inns of 
 Court and the administration of the several 
 properties ; but these, we learn, have been 
 modified so much in their adoption as to have 
 been of very little value. The societies have 
 long outlived the purposes for which they were 
 instituted, though their principals and officials 
 seem to attach considerable importance to their 
 continued existence. It is probable, however, 
 that their raison d'etre being gone, they will all 
 sooner or later go the way of Lyon's Inn, and 
 become things of the past.
 
 ©biter. 
 
 By Georgk Neilson. 
 
 THE claims of the legal profession to culture 
 were cleverly belittled by Burns, when he 
 w\;uU'. the New Brig of Ayr wax sarcastic over 
 the town councillors of the burgh :— 
 
 " Men wha grew wise priggin owre hops an' raisins, 
 Or gather'd lib'ral views in Bonds and Seisins." 
 
 Bonds and seisins are certainly not the happiest 
 intellectual feeding ground. "I assure you," said 
 John Riddell, a great peerage antiquary, " that to 
 spend one's time in seeking for a name or a date 
 in a bit of crabbed old writing does not improve 
 the reasoning powers." Riddell was a keen critic 
 of Cosmo Innes, who subsequently had the happi- 
 ness of passing the comment upon Riddell's 
 observation that " perhaps it is not in reasoning 
 that Mr. Riddell excels." Yet the annals of the 
 law shew many splendid examples of the union of 
 close textual study of manuscript, with an enlarged 
 outlook on first principles and with keen critical 
 insight. Perhaps Madox was a more permanently 
 serviceable scholar than Selden. One can see
 
 268 LEGAL LORE. 
 
 from Coke's margins, his infinite superiority to 
 Bacon in exact knowledge at first hand of older 
 English law. But when all is said, we could 
 have done much better without Coke and Madox 
 than without Bacon or Selden. It is delightful 
 to be able to appeal to Chaucer for perhaps the 
 most emphatic compliment to law, in respect to its 
 capacity for literature, that it has ever received. 
 Amongst all the Canterbury pilgrims, there was 
 no weightier personage than the Man of Law : — 
 
 " Nowher so bisy a man as he ther nas, 
 And yet he semed bisier than he was. 
 In terraes hadde he caas and domes alle 
 That from the tyme of King William were falle, 
 Therto he coude endyte and make a thing 
 Ther could no wight pinche at his wryting, 
 And every statut coude he pleyn by rote." 
 
 Yet it was this learned and successful counsel, 
 alone of the party, who knew the poet's works 
 through and through, and had the list of them 
 at his finger-ends. Good Master Chaucer for 
 this touch we offer hearty thanks ! Was it in 
 Herrick's mind when he penned his fine tribute 
 to Selden ? 
 
 " I, who have favoured many, come to be 
 Graced, now at last, or glorified by thee."
 
 OBITER. •-'''•'. , 
 
 Wits and poets have had many hard things to 
 say in jest and in earnest about the legal 
 profession and its work. Herrick bracketed law 
 and lawyers with diseases and doctors, in a 
 fashion hinting that the relation of cause and 
 effect existed between botli pairs ; 
 
 "As many laws and lawyers do express, 
 Nought but a kingdom's ill -affected ness. 
 Even so those streets and houses do but show 
 Store of diseases where physicians flow." 
 
 It was an old story this linking of the prac- 
 titioners of law and medicine in one yoke of abuse. 
 The reason given for both categories in early 
 satire is sufficiently curious. It was because they 
 took fees ! Walter Map declared the Cistercian 
 creed to be that no man could serve God without 
 mammon. Ancient satire equally objected to the 
 service of man, either legally or medically, under 
 these conditions. "The Romaunt of the Rose" 
 has the traditional refrain of other strictures in 
 verse, when it declares that 
 
 " Physiciens and advocates, 
 Gon right by the same yates, .,„,,.,., gat ^ 
 
 They selle hir science for winning. warning, <«« 
 
 For they nil in no maner gree „„ /„,„/ „,- (l00 d will 
 
 Do right nought for charitee."
 
 270 LEGAL LORE. 
 
 The same idea, precisely, finds voice in the 
 poem attributed to Walter Map, wherein the 
 doctor and the lawyer come together under the 
 lash, because no hope can be based upon either of 
 them unless there be money in the case. " But 
 if the marvellous man see coin, the very worst 
 disease is quite curable, the very falsest cause 
 just, praiseworthy, pious, true, and pleasing to 
 God." Perhaps these ancient sarcasms were 
 keener on the leech than the lawyer. " The 
 Romaunt of the Rose " goes so far as to say that 
 if the physicians had their way of it, 
 
 " Everiche man shulde be seke, 
 And though they dye, they set not a leke 
 After : whan they the gold have take 
 Ful litel care for hem they make. 
 They wolde that fourty were seke at onis ! 
 Ye, two hundred in flesh and bonis ! 
 And yit two thousand as I gesse 
 For to encresen her richesse." 
 
 No doubt the men of medicine would have been 
 much more vulnerable on another line, for it 
 was no satirist but a learned medical professor, 
 Arnauld de Villeneuve, who, in the beginning of 
 the fourteenth century, advised his students as 
 follows: — "The seventh precaution," said he, "is 
 of a general application. Suppose that you
 
 OBITER. 27 1 
 
 cannot understand the case of your patient, say 
 to him with assurance that he hath an obstruction 
 of the liver." No legal professor surely was ever 
 guilty of the indiscretion of saying such a thing 
 as this ! 
 
 The ineradicable public prejudice against legal 
 charges as flagrantly exorbitant is only a modified 
 form of an older idea exemplified above that 
 lawyers should have no fees at all. And as to 
 this day the plain man has never fully reconciled 
 himself to the doctrine that the lawyer is only 
 an agent, and not called upon to sit in the first 
 instance in judgment on his client, so in the 
 past the professional defence of a criminal 
 appeared a very venal transaction. 
 
 " Thow I have a man i-slawe, 
 And forfetyd the kynges la we 
 I sal fyndyn a man of lawe 
 Wyl takyn myn peny and let me goo." 
 
 How reprehensible a thing to take fees was 
 lono- reckoned admits of curious illustration. 
 " Before the end of the thirteenth century," says 
 that never-failing authority, Pollock and Mait- 
 lnnd's "History of English Law.'" there already 
 exists a legal profession, a class of men who make
 
 272 LEGAL LORE. 
 
 money by representing litigants before the courts 
 and by giving legal advice. The evolution of 
 this class has been slow, for it has been with- 
 stood by certain ancient principles." Amongst 
 these retarding influences lay the half-religious 
 scruple about the propriety of payment — - 
 men as usual swallowing the camel first and 
 straining at the o-nat afterwards. Of course the 
 subject had to be illuminated by monkish tales 
 and death-bed repentances. There was, according 
 to the Carlisle friar who penned the "The Chronicle 
 of Lanercost," — writing under the year 1288, — 
 a young clerk in the diocese of Glasgow, whose 
 mind " was given rather to the court of the rich 
 than to the cure of souls. He was called Adam 
 Urri, and was laically learned in the laic laws, 
 disregard in a- the commands of God against the 
 Praecorialia [so in the printed text, but, query, 
 Praetorialia ?] of Ulpian. He used the statutes 
 of the Emperor in litigating causes, for payment 
 of money. But when he had grown old and 
 famous in this his wickedness, and was striving 
 by his astuteness to entangle the affairs of a poor 
 little widow, the divine mercy laid hold on him, 
 assailing his body with sudden infirmity, and 
 bringing his mind to plead (enarrarei) more for
 
 OWTKK. 273 
 
 another life." Condemning utterly the lawyer's 
 court, he turned over a new leaf, predicted the 
 day of his own death, and died punctually 
 conform to the phophecy, leaving- an example 
 unctuously used by the friar to teach future 
 generations "how wide was the gulf betwixt the 
 service of God and the vanity of this world." 
 We shall not he far wrong in regarding, as of 
 more historic interest, the indication of the 
 immorality of fees, and the important reference to 
 Ulpian as an authority in the forum causidicorum 
 of thirteenth century Scotland. 
 
 Amongst the amiable conceptions of the middle 
 a^e was the notion that the Evil One often 
 manifested a particular zeal against sin. He was 
 regarded with a different eye from that with 
 which we regard him, and he rewarded faith with 
 actual appearances such as only spiritualists can 
 now-a-days command. Some of them were not 
 very engaging, however praiseworthy may have 
 been their object and occasion. Simeon of Dur- 
 ham, an eminently respectable contemporary 
 author, wrote of the death of King William Rufus 
 in the year 1100 that the popular voice considered 
 
 the wandering flight of Tyrell's arrow a token of 
 
 18
 
 274 LEGAL LORE. 
 
 the " virtue and vengeance of God." And he 
 added that about that time the Devil had frequent- 
 ly shewn himself in the woods "and no wonder, 
 because in those days law and justice were all but 
 silent." The logic of this because, not apparent 
 on the surface, becomes less obscure when it is 
 remembered that in the mediaeval devil the 
 character of Arch-Enemy is so much subordinated 
 to that of Arch- Avenger. 
 
 The direct relation of not only the Saints 
 but of the Deity itself to human affairs was 
 a conception so clear to the mediaeval mind 
 that it saw nothing irreverent in a title 
 deed being taken in the Supreme name, or 
 in marshalling " Deus Omnipotent " at the head 
 of the list of witnesses to a charter. This 
 anthropomorphic practice gave occasion to one of 
 the sharpest of Walter Map's jokes against the 
 Cistercians. Three abbots of that order petitioning 
 on behalf of one of their number and his abbey 
 for the restoration of certain lands by King- 
 Henry II. as having been injuriously taken away 
 from the claimant's abbey, represented to the 
 Kin£ in his court that for God's sake he ouofht to 
 cause the lands to be restored and they assured
 
 olUTKK. 275 
 
 him ami gave him God himself as their guarantor 
 (fidejussor&m) that if he did, God would greatly 
 increase his honour upon earth. King Henry 
 found it difficult to resist the appeal thus made 
 to him bul called the Archdeacon Walter Map to 
 advise. This he did well-knowing that this 
 counsellor did not love the Cistercians, and that 
 he might thus find a creditable way out of a tight 
 corner. The Archdeacon was equal to the occasion. 
 "My lord," said he to the King, "they offer you 
 a guarantor; you should hear their guarantor 
 speak for himself." "By the eyes of God," 
 replied Henry, " it is just and conform to reason 
 that guarantors themselves should be heard upon 
 the matter of their guarantee." Then rising with 
 a gentle smile (not a grin, expressly says Giraldus 
 Cambrensis) the shrewd monarch retired leaving 
 the disappointed abbots covered with confusion. 
 
 Of the many ties between literature and law, 
 one, not by any means the least interesting on 
 the list, is the quantity of legal citations, phrases, 
 metaphors and analogies which got swept into 
 the wide nets of the poet-. Amongst such scraps 
 there are few so successful and still fewer so 
 pathetic as one in which a metrical historian,
 
 276 
 
 LEGAL LORE. 
 
 drawing near the close, both of his days and his 
 chronicle, figured himself as summoned on short 
 inducim at the instance of Old Age to appear at 
 a court to answer serious charges, where no help 
 was for him save through grace and the Virgin 
 as his advocate. 
 
 Elde rue maistreis wyth hir brevis, 
 
 like day rue sare aggrevis, 
 
 Scho has me maid monitioune 
 
 To se for a conclusioune 
 
 The quhilk behovis to be of det ; 
 
 Quhat term of tyme of that be set 
 
 I can wyt it be na way, 
 
 Bot weill I wate on schort delay 
 
 At a court I mon appeire 
 
 Fell accusationis thare til here 
 
 Quhare na help thare is bot grace. 
 
 The maikless Madyn mon purchace 
 
 That help ; and to sauff my state 
 
 I haiff maid hir my advocate. 
 
 elde, age 
 
 brevis, writ 
 
 ilke, each 
 
 quhilk, which 
 
 of (let, of right 
 
 wyt, know 
 
 bot, witlwvX 
 maikless, matchless 
 
 purchace, procure 
 sauff, saw 
 
 Androw of Wyntoun's verse it must be owned 
 was verse on the plane of a notary public, and oft 
 the common form of legal writ supplied sorrily 
 enough the deficiencies of his imagination. But 
 here for once the simple dignity of the thought 
 bore him up and carried him through.
 
 3nbey. 
 
 Aberdeen, gipsies at, I7"> 
 Abjuring I be r< aim, I "> 
 
 Atijur.it ion, 69 
 
 Abolishing right of Sanctuary, 16 
 Adultory, penalty of, 1 1 
 Africa, ordeal in, 24 25 
 Amphitheal re, -ports of, 1 12 
 An eye for an ej e, L37 
 Ancient tenures, 95 108 
 Andrews, William, Cock Fight- 
 
 . . L96 200 
 Anglo-Saxon < 'hurch, 14 
 Aram, Eugene, 212 
 Ashford, Mary, In- 11 
 Asyla in < Ireece, 14 
 Axon, W. E. A., Sanctuaries, 
 
 13-22 ; Laws relating to the 
 
 Gipsies, 165-178 
 
 Babylonia, law of, 3-4 
 
 Balance, ordeal of, 27 
 
 Barbarous Punisements, 132-148 
 
 Barnard's Inn, 263 
 
 Beetles, trial of, 1 57 
 
 Begbie, William, murder of, 210 
 
 Beverley, Sanctuary at, 19-20 
 
 Bible Law, 1-12 
 
 Bible, ordeal of the, 37 
 
 Bible, weighing against, 27 
 
 Bier, ordeal of, 36 
 
 Bird, Robert, Cockieleerie Law, 
 200-204 
 
 Biretta, .">:> 
 
 Black Book of Hereford, 101 
 
 Black Parliament, 225 
 
 Blood, laws written in, 135 ; 
 stains, -2±> 
 
 BoiliiiLC to death, 135 
 
 Book of Common Prayer, abol- 
 ished, 194 
 
 Borough English, 104-106 
 
 Breaking straws, 18; rods, 49 
 
 Buccleuch, Barons of, 107 
 
 Bull relating to English Sane 
 tuaries, 15 
 
 Bull, trial of, 150 
 Burned alive, 134 
 Burgi 38, s., Bible Law, 1-12 
 
 Canning, Elizabeth, 172-173 
 
 ( 'anon Law , 187, 225 
 
 Castles, a cenl re of power. ~ \ 
 
 < '.-it i le stealing, 7 I 
 
 Channel Islands, Laws of the, 
 
 242-243, 248 257 
 Charges, prejudice against, -71 
 Charles I., Trial of, 182 
 Chaucer's compliment to the law, 
 
 268 
 Cheltenham, Manor of, 94 
 ( ihemical tost, 220 
 Christians, early punishment of, 
 
 137 
 Church and ordeals, 29 
 Clarke, Sidney W. , Barbarous 
 
 Punishments, 132-14 I 
 Clement's Inn, •Jlill 
 Cock-Fighting in .Scotland, 196- 
 
 a 1 1 ' 
 
 Cockieleerie Law, 200-204 
 
 Cock, tried for laying an egg, 154 
 
 Commonwealth Law and Lawyers, 
 
 178-196 
 Continental Feudalism, 77-82 
 Conveyancing Symbols, 50-51 
 Copyhold, 49, 83 
 Corsnedd, ordeal of, .'!■"> 
 Commandments, breaking, '■> 
 Cross, ordeal of the 33 
 Crown, 56 
 
 Coventry Acts. 142-143 
 Court Baron, SI 
 ( lustomarj I lourl , S4 
 Crucifixion, 136 
 
 Dead bodies brought to place of 
 judgment , 232 
 limitation of, 9 
 Declining knighthood, 03-64
 
 278 
 
 INDEX. 
 
 lV-tilement, 8 
 
 Delivery of turf or twig, 50 
 
 Deposition of kings, 56 
 
 Devices of the Sixteenth Century 
 
 Debtors, 161-164 
 Divine right of kings, 193 
 Dog carrying, 140 
 Dogs in recognition of tenure, 
 
 101 
 Dream evidence, 214-217 
 Dudley lands, 64 
 Durham Sanctuary, 17, ID 
 
 Escheats, 226 
 
 Emma, Queen, tried by ordeal, 
 
 30 
 Englishry, law of, 70 
 Executing gipsies, 167, 170 
 
 Failure to extripate gipsies from 
 England, 170 
 
 Fatal Links, 205-223 
 
 Father, powers of, 9 
 
 Ferocity of forest laws, 119, 
 
 Feudal lord, powers of the, 64 
 
 Feudal system, 58-62 
 
 Fining jurymen, 124 
 
 Fire ordeal, 28 
 
 Flagellation, 61 
 
 Flags, rendering for tenure, 101 
 
 Forests, great, 115-116 
 
 Forgery, punishments, 142 
 
 Fortune telling, 169 
 
 France, penal laws of, 140-141 ; 
 Trials of animals in, 149-154 
 
 Frankalmoign, 103 
 
 Free alms, 103-104 
 
 Fridstools, 17, 20 
 
 Frost, Thomas, Trial by jury in 
 Old Times, 122-131 ; Trials 
 of animals, 149-160; Little 
 Inns of Court, 258-266 
 
 Furnival's Inn, 265 
 
 Gavelkind 106-107 
 
 Ghosts, 217-220 
 
 Gibbet, gipsy rescued from, 176 
 
 Gipsies, laws relating to the, 165- 
 
 178 
 Glove, 92 
 ( iodiva story, 74 
 Grand Serjeantry, 100 
 Great Civil War, 179 
 Greenacre case, 209, 
 
 Hampden, John, 182 
 
 Hanged, drawn, and quartered, 
 
 133-134 
 Hasp and staple symbol, 52-53 
 Hat as a symbol, 53-54 
 Hawaii, ordeals in, 25 
 Henry VIII. , laws against gipsies, 
 
 169 
 Hereford Fair, 101 
 Heresy. 228 
 Heriots, 91-92 
 Herrick on lawyers, 269 
 High treason, trial for, 122-124 ; 
 
 punishments for, 132-135 
 Hindoos, ordeals of the, 26-27 
 Holzmann, Maria Ann, murder 
 
 of, 206-209 
 Homage, 53 
 Homicide, 11 
 Horse, trial of, 151 
 Hot iron, ordeal of, 27, 30, 31, 32 
 Howlett, England, the Manor 
 
 and Manor Law, 83-94 ; 
 
 Ancient Tenures, 95-108 
 Hugh of Avalon, 120 
 
 Ignorance, sin of, 7 
 
 Iniquities, legal, 145 
 
 Irish Island Laws, 238-239J 
 
 Isle of Man, Laws of the, 243-247 
 
 Island Laws, 237-257 
 
 Jews, extortions of, 73 
 Jocular tenure, 102 
 
 King's power limited, 12 
 Knight, service of, 96 
 
 Lanercost, the chronicle of, 272 
 Law under the Feudal System, 
 
 58-82 
 Law and Medicine abused, 269- 
 
 270 
 Laws of the Forest, 109-121 
 Laws relating to the Gipsies, 165- 
 
 178 
 Left-handed murder, 214 
 Letters of IV. Forms, 1 63 
 Lesemajesty, crimes of, 229-231 
 Lincoln's Inn, 266 
 Lipski, 213 
 
 Literature and Law, 275 
 Little Inns of Court, 258-266 
 Lords, power of, 58
 
 INDEX. 
 
 279 
 
 Lord Chid Justice Popbam, 
 
 stolen bj gipsies, 17" 
 Loss oi right band, 138 
 Lyon's Inn. 259 
 
 Macdonald, James < '., !>■ ricee 
 
 of i be Si tteenl b < !enl urj 
 
 Debtors, 161 164 
 Magna < 'harta, 63, 98 
 Manchester, Sanctuary at, 15, 
 
 16, 17 
 Manor and Manor Law, 83 94 
 Manor, origin of, s ^ 
 Marriage in feudal times, 59 
 Marriage laws, altering, 19.~> 
 Marrying to atone for violence, 
 
 ill 
 Martin, Maria, 214 
 Middle Ages, ordeals of, 29 
 Military sen ice, 59 
 Military punishments, 136 
 Mone\ raised by marriage, 72 
 Mortal ( lombal , 37- 1 1 
 Mosaic law . .': 
 Mutilation, a favourite mode of 
 
 punishment, 141-144 
 Muswell Hill murder, 2 18 
 
 Neilson. George, on Symbol-, 48- 
 r.7 : Post Mortem Trials, 224- 
 236 ; Obiter, 2(>7-27(i 
 
 New Inn, 2.")!) 
 
 New wax of paying old debts, 
 163 ' 
 
 Ximrod, 111 
 
 Norman foresl laws, 117 
 
 Oath, refusal to bear witness of, 
 
 s; of fealty, 60 
 On Symbols. 43-57 
 Oppression of gipsies under Queen 
 
 Elizabeth, 171 
 Ordeals, 24-42 
 
 Palace regulal ion-, 138-14U 
 Parricide, punishment for, 137 
 Paul's ( Iross, preaching at, 194 
 Peacock, Edward, Laws of the 
 Forest, 109 121 ; Common- 
 wealth Law and Lawyers, 
 179-196 
 Peine forte el dure, 145-1 is 
 Penal Code, English, 1 15 
 Penn and Mead, trial of, 125 
 
 Pei -■ cul am ot gipsi< -, 171 
 Plantal ion.-, gipsiee Bent to, 1 7 s 
 Plays acted by gipsies, 1 76 
 Pigs, trial of, 150, 151, 152, 153, 
 
 157 
 Pillory, I 12, l n 
 Poison, L35, 138 
 l'oi-on, ordeal, 28 
 Poisoning, punishmenl for, 135 
 Poor laws, '.• 
 
 Post Mortem Trials, 224 236 
 Prejudice against gipsies, 172 
 Protecting the church in war 
 
 time, 102 103 
 Proverb, oldest, 1 II 
 Punishments under .Saxon-, lil 
 
 Quakers, trial of, 125-131 
 
 Rann, Ernest H., trials in super- 
 stitious ages, 22 12 ; Fatal 
 Links, 205-223 
 
 Reasoning power, 207 
 
 Rebel Heads on City gates, 134 
 
 Refuge, cities of, 14 
 
 Regicides, 184 
 
 Robbing travellers in feudal 
 t ime.-, 73-74 
 
 Robert de Belesone, cruel acts of, 
 65 
 
 Robert the Bruce, Conspiracy, 
 225 
 
 Rod in .Scotland, 4il 
 
 Roman Empire in its glory, 114 
 
 Rose Tenures, 102 
 
 Ruskin, duo., on Cceur de Lion, 
 72 
 
 Sacrifice, laws relating to, ~>-7 
 
 Sacrilege, 8 
 
 Sanctuaries, 13-22 
 
 Scilly Island.-, laws of the, 239 
 
 Scoggan, Queen '8 jester, 168-104 
 
 Scotch Islands, laws of the, 239- 
 
 242 
 Scotland, sanctuaries of, 21-22 
 Scott, John, of Edinburgh, 161- 
 
 163 
 Scutage, 98 
 Self-slaughter. 229 
 Ship-money tax, 181 
 Shaving the bead for theft, 69 
 Siamese, ordeals of the, 26 
 Silver spear, 55
 
 280 
 
 INDEX. 
 
 Slavery, discharge from, 45 
 Slaves, ill treatment of, 8, 10; 
 
 under the Saxons, GO 
 Slaying gipsies, 17-V176 
 Sods ottered at the altar, 48 
 Spindle on the altar, 51 
 Staff and baton, 50 
 Staples Inn, 262 
 star Chamber, 124-125 
 Strangulation, punishment by, 
 Straws, breaking, 48 
 Stocks, 67 
 Switzerland, trials of animals in, 
 
 154 
 Symond's Inn, 265 
 
 Thornton, Abraham, 40-41 
 
 Towns amerced, 70 
 
 Traitors, exempted from the 
 
 Sanctuary, 15 
 Treason, trials for, 233 
 Trial by Jury in old times, 122- 
 
 131 
 Trials of Animals, 149-160 
 Trials in superstitious ages, 22-42 
 Tynwald Day, 247 
 
 Usury, law of, 9 
 
 Villeinage, 86 
 
 Violating the sanctuary, 14, 21 
 
 Wager of Battel, 37, 41 
 Walters, Cuming, Law under the 
 
 Feudal system, 58-82 ; Island 
 
 Laws, 237-257 
 Wand, 49 
 Welcoming gipsies to England, 
 
 168 
 Westminster, sanctuary of, 20 
 Whipping 61 ; Post 67 
 William I., Forest Laws of, 118 ; 
 
 Burial of, 225 
 William the Red, Forest laws of, 
 
 119 
 Witchcraft, 144-45 
 Wollen Industry, protection of, 
 
 144 
 Women, free bench of, 93 
 Working of the sanctuary system, 
 
 16, 17
 
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