By Cuming Walters.

A VERY curious and interesting phase of self-government is that which is supplied by the independent legal system established in various small islands in the United Kingdom. It is amusing to notice these little communities on rocky islets tenaciously preserving their ancient privileges, and revelling in the knowledge that they have a code of their own by no means in harmony with the statute law of the country of which they are an insignificant part. The tribunals and the legal processes in the Channel Islands, in the Scilly Islands, in the Isle of Man, and even in some of the smaller islands round the English coast, differ entirely from those established in the motherland; and any suggestion of change is warmly resented. In many cases it has not, of course, been worth while to insist on reform, inasmuch as the islands are inhabited only by a few families, who may be left in peace to settle their own differences if any occur.

There are a great many scattered islets about the sinuous line of Irish coast, very few of which are ever visited by strangers. The conditions of life in these isolated places are seldom investigated, and yet we find there are some remarkable survivals of old customs and relics of ancient laws. The people are independent, because they feel they are totally separated from the mainland, and possess neither the means nor the desire to cross over to it. They are in many respects a race by themselves, and their attachment to their little homes of rock is such that one of their severest punishments for offenders is to transport them to Ireland. Such an island is Raghlin, or Rathlin, six miles distant from the north-west of Antrim, but might be six hundred miles, judging by the slight intercourse the handful of inhabitants has with the larger world. Another such island is Tory, ten miles from the Donegal coast, where up to a few years ago the dwellers were unacquainted with any other law than that of the Brehon code. A visitor in 1834 found them choosing their own judge, and yielding ready obedience to mandates “issued from a throne of turf.” In this case, and in the case of the Cape Clear islanders, it was found that the threat of banishment to the mainland was severe enough to prevent serious crime. These feelings probably have been modified in more recent times, yet the intensity of the attachment of islanders to their native rock is one of the ineradicable characteristics which account for the sturdy independence manifested in their laws and customs. Their little homes are miniature worlds which they prefer to govern themselves in their own way. We may take the Scillies as a favourable example, where the natives cling to the system of civil government by twelve principal inhabitants forming a Court presided over by a military officer. The Court is held every month, and it has jurisdiction in civil suits and minor causes. The Sheriff for Cornwall has, or, at all events, had, no jurisdiction in the islands, though persons prosecuted for felonies (which are extremely rare) have to be relegated to the Assizes at Launceston.

The patriarchal system has always been much in evidence in the small Scotch islands, which, for the most part, are the possessions of the descendants of feudal chieftains. Dr. Johnson adverted to this fact on the occasion of his famous journey in the North:—“Many of the smaller islands have no legal officers within them.

I once asked, if a crime should be committed, by what authority the offender could be seized, and was told that the laird would exert his right; a right which he must now usurp, but which merely necessity must vindicate, and which is therefore yet exercised in lower degrees by some of the proprietors when legal process cannot be obtained.” But after observing how the system operated, Dr. Johnson freely admitted that when the lairds were men of knowledge and virtue, the convenience of a domestic judicature was great. Owing to the remoteness of some of the islands and the difficulty of gaining access to others, it was scarcely possible to bring them under the common law, and we find that in some instances the proprietors were allowed to act as magistrates by the Lord-Lieutenant’s commission. Some of the old lairds had a very effective but unjudicial method of enforcing their laws. Lord Seaforth, High Chief of Kintail, was anxious to abolish a very odious custom of woman-servitude which prevailed in the island of Lewis. The men were wont to use the women as cattle, compelling them to draw boats like horses, and, among other things, to carry men across the deep and dangerous fords on their backs. This practice greatly disgusted Lord Seaforth, who found, however, that it was one particularly hard to check. He arrived one day on horseback at a stream which a peasant was contentedly crossing, mounted on a woman’s shoulders. When the middle of the stream was reached, the laird urged his horse forward, and came up with the couple, when by vigorously laying his whip about the back of the man, he compelled him to dismount, and wade as best he could to the opposite bank. This practical indication of the laird’s wishes aided considerably in producing a change.

The Scotch islanders are a law-abiding people, and patriarchal government sufficed. It was recorded of the inhabitants of Skye that, during a period of unusual distress and semi-starvation, not a single sheep was stolen. So keen is the sense of propriety in that island that a whole family has been known to slink away, unable to bear the disgrace brought upon them by an individual delinquent. Orkney and Shetland once possessed all the characteristics of a separate kingdom, the laws of no other countries being imposed upon them. There was none to dispute the laird’s right, and legal administration was entirely in his hands, except for the period that the islands were placed under episcopal rule. It is worth noting that the most famous of the governing bishops, Robert Reid (tempus 1540), also filled the high office of President of the Court of Session at Edinburgh, and he and his successors are said to have ruled with conspicuous mildness and equity.

We may now turn to one or two English islands before devoting attention to the most important examples of all—those supplied by the Isle of Man and the Channel Islands. The Isle of Wight is only regarded as “separate” from Hampshire for one legal purpose, so far as I have been able to ascertain. It is part of the “county of Southampton” for all purposes except the land-tax payment: for this it has a separate liability. But the land-tax divisions are the most irregular, and the least uniform of any legal divisions in the country, and it is therefore not surprising that the Isle of Wight should in this respect be subject to peculiar usage. Purbeck is one of those “isles” in England which now depend more upon tradition for their designation, than natural accordance with the geographical definition. What is remarkable is that these “isles”—such as the Isle of Purbeck, the Isle of Ely, the Isle of Glastonbury, and the Isle of Meare—nearly all have certain well-established and recognised laws of their own for the little communities which dwell within their borders. The quarrymen of Purbeck consider themselves a race apart, and their guild is one of the closest and strictest character. Their homage is paid exclusively to the lord of the manor, and the “Marblers” claim to have received a special charter from King Edward. On Shrove Tuesday they elect their officers, and celebrate the occasion by kicking a football round the boundaries. One ancient custom observed on these occasions is to carry a pound of pepper to the lord of the manor, as an acknowledgement to him in respect to a “right of way.” Until comparatively recent times the government of the island was patriarchal in character. The Isle of Glastonbury had its “House of Twelve Hides” for the trial of petty cases in the locality, and tradition reports that unusually large dungeons were prepared for the immuring of those who offended in the renowned Avalonian isle.

The Isle of Man, when subject to the Kings of Norway, was a subordinate feudatory kingdom. It afterwards came under the dominion of the English Kings, John and Henry III., but passed afterwards to the Scotch. Henry IV. eventually claimed the little isle, and disposed of it to the Earl of Northumberland, but upon this famous nobleman’s attainder it went to Sir John de Stanley. Its government seemed destined to be unsettled, however, and though the title of king was renounced by the possessors of the land, they maintained supreme and sovereign authority as to legal process. In the Isle of Man no English writ could be served, and as a result it became infested with smugglers and outlaws. This was unsatisfactory, and, in 1765, the interest of the proprietor was purchased, in order that the island should be subject to the regulations of the British excise and customs.

According to Blackstone, than whom there could be no greater authority, the Isle of Man is “a distinct territory from England, and is not governed by our laws; neither doth an Act of Parliament extend to it unless it be particularly named therein.” It is consequently a convenient refuge for debtors and outlaws, while its own roundabout and antiquated methods of procedure have been found to favour the criminal rather than to aid prosecutors and complainants.

Perhaps this was never more vividly illustrated than in the recent case of the murderer Cooper, who profited by the cumbrous and lenient processes of Manx law to the extent of getting an atrocious crime reduced to manslaughter. The laws have often been amended. Prior to 1417 they were “locked up in the breasts of the Deemsters,” but Sir John Stanley found that so much injustice was being done under the pretence of law, that he ordered a promulgation to be made. But “breast laws” continued to be administered for another two centuries, until Lord Strange, in 1636, commanded that the Deemsters should “set down in writing, and certify what these breast laws are.” In 1777, and also in 1813, the laws of the island were again amended, and every criminal was allowed three separate and distinct trials before different bodies. First the High Bailiff hears his case, then the Deemster and six jurymen, and, thirdly, if he has been committed for trial, he is brought before the Governor and the Deemsters. By the time the case gets to the final court it has usually been “whittled down” to the smallest possible proportions, and doubts have often been raised whether justice is not marred by misplaced and unwarranted lenity. Another strange practice is that the Manx advocates combine the parts of barrister and attorney. The law is hard upon debtors, who can be lodged as prisoners in Castle Rushen, if it is suspected that they are about to leave the island; but there are no County Courts. On the other hand, there are Courts of Law of almost bewildering variety—the Chancery Court, the Admiralty, the General Gaol Delivery, the Exchequer, the Ecclesiastical, the Common Law, the two Deemsters’ Courts for the north and south of the island, the Seneschal’s Court, the Consistorial, the Licensing, and the High Bailiff’s. Each sheading, or subdivision, has its own coroner or sheriff, who can appoint a “lockman” as his deputy; and each parish (there are seventeen) has its own captain and a “sumner,” whose duty in old times was to keep order in church and “beat all the doggs.” Manx law had, and perhaps to some extent still has, a similar reputation either for allowing criminals in the island to escape easily, or for permitting English criminals to remain unpunished; hence the old ribald verse which represents the Devil singing—

“That little spot I cannot spare,

For all my choicest friends are there.”

The Deemster’s oath is a curiosity in itself:—“I do swear that I will execute the laws of the isle justly betwixt party and party as indifferently as the herring’s backbone doth lie in the midst of the fish.” Formerly the elective House of Keys possessed judicial as well as legislative functions, but this power was taken from it by the Act of 1866. Laws are initiated in the Council and the Tynwald Court, which promulgates them, consists of the members of the Council, and the House of Keys, who unite for the occasion. Tynwald Day as described by Mr. Hall Caine is an interesting, historic, but not an impressive ceremony. A thousand years ago the Norsemen established a form of government on the island, and every fifth of July the Manxman has his open-air Parliament for the promulgation of laws. But it is a gala day rather than a day of business. “Reluctantly I admit,” writes Mr. Hall Caine, “that the proceedings were, in themselves, long, tiresome, ineffectual, formless, unimpressive, and unpicturesque. The senior Deemster, the amiable and venerable Sir Wm. Drinkwater, read the titles of the new laws in English. Then the coroner of the premier sheading, Glenfaba, recited the same titles in Manx. Hardly anybody heard them; hardly anybody listened.”

The Channel Islands were part of the Duchy of Normandy, and their laws are mostly the ducal customs as set forth in an ancient book known as “Le Grand Coustumier.” Acts of the English Parliament do not apply to these Islands unless specifically mentioned, and all causes are determined by their own courts and officers. In Mr. Ansted’s standard work on the Channel Islands (revised and edited by E. Toulmin Nicolle, 1893), a long chapter is devoted to the whole subject, and it is so complete and well expressed that I venture without much alteration of phraseology to summarise its leading points. Jersey and Guernsey have diverged greatly from each other in their legal customs, and it is also curious to find that each of the smaller islands possesses its own particular constitutions and courts. The rights and customs of the “States,” which are an outcome of the mediæval Royal Court, have constantly undergone modification and have been remodelled, but they retain many of the ancient characteristics. The Bailiff (Bailli), or chief magistrate, is the first civil officer in each island, and usually retains his office for life. He presides at the Royal Court, takes the opinions of the elected Jurats, and when their voices are equal has a casting vote both in civil and criminal cases. The Bailiff is not required either in Jersey or Guernsey to have had a legal education. He is appointed by the Crown, but has usually held some position at the island bar. Formerly the advocates practising in the court of Jersey were nominated by the Bailiff, and were limited to six in number. In 1860, however, the bar was thrown open to every British subject who had been ten years resident in the island, and who was qualified by reason of being a member of the English bar, having taken a law degree at a French University, and having passed an examination in the island. In Guernsey the advocates are also notaries, and frequently hold agencies. The judicial and legislative powers in Jersey are to some extent separate, but in Guernsey they are intimately associated—a fact which accounts for much of the difference in custom in the two islands.

The ancient Norman law contained in “Le Grand Coustumier” dates back to the thirteenth century, was badly revised in the time of Queen Elizabeth, and became the Code. Trial by jury was established in 1786, and the laws on the subject have undergone considerable change. There is a committing magistrate, and the trial takes place at the Criminal Assizes of which there are six in the year. The jury numbers twenty-four; if twenty agree, the verdict is taken; if less than twenty the prisoner is set free. Minor offences are referred to a court of Correctional Police presided over by a magistrate who is independent of the Royal Court. The same magistrate presides over the court for the recovery of small debts, and there is no appeal from his decision. Then there are subsidiary courts for various police purposes, while the Court of Héritage entertains suits regarding real estate. The arbitrary operation of these Courts may have very evil results, especially for strangers who are unlearned in the peculiarities of Jersey law. I find a striking example of this in a magazine of June 15th, 1861, in which a hard experience is detailed with comments which appear to be fully justified by the circumstances. The writer says:—

“Before leaving England I had had a serious quarrel with a former friend and medical attendant, and no long time elapsed after our arrival in the island, before this gentleman sent me in a bill of monstrous proportions—a true ‘compte d’apothecaire’ as the French express it. At that time I was quite ignorant of the singular constitution of Jersey law, and how it placed me in the power of any man who chose to sue me whether I owed him money or not. I wrote to the doctor, refusing to pay the full amount of his claim, and referring him to a solicitor in London. He was, however, better acquainted with the Jersey law than myself, as the result will show. Here, before proceeding with my story, I will enter into some explanation of the law of debtor and creditor as it exists in Jersey. This law enables the creditor to enforce his demands summarily, depriving the party sued of his liberty, and leaving him in gaol till the costs of his imprisonment have swelled the amount to be paid: and further, supposing the defendant ultimately gains his suit, and proves his non-liability, no damages for false imprisonment are obtainable. The law leaves him no remedy, for the plaintiff makes no affidavit; and a simple letter from England, requesting a Jersey advocate to enforce payment of a claim, is enough to cast the defendant at once into prison, prior to any judicial investigation into the merits of his case.

“Thus, in Jersey, every man (unless he be a landed proprietor) is at the mercy of every other man, both in the island and out of it. In short, one man can arrest another simply by drawing up an imaginary account on a common bit of paper, and handing it to the nearest lawyer, who will send his clerk with the sheriff’s man and imprison the unfortunate victim in default of immediate payment. What is worse still, an arrest can be carried into effect, by means of a simple letter sent through the post. The exception in favour of land-owners of course includes the owners of house property, an exception which mostly benefits Jersey-men, as few but natives possess property in the island. It is only a proprietor who must be sued before he can be imprisoned. If the Jersey laws confined the persons merely of strangers sued by the inhabitants of the island, in the arbitrary manner described, the justice of such a practice might still be defended on the plea of preventing them from leaving the island; but no excuse can be found when the Jersey law is made an instrument in the hands of strangers, living out of the jurisdiction of the island, and when it is used to enforce payment of debts incurred in another place, and in which no inhabitant of the island is interested, and when (as sometimes happens) it is employed as a means of extortion. In the first case it can be urged that, at least, it gives protection to the islander, which may be all proper enough, though the system is liable to abuse. In the second, the injustice and folly of the law is flagrant. By what right or reason ought the Jersey code, without previous inquiry, to deprive one man of his liberty at the demand of another, when both are strangers, and when the dispute relates to matters wholly beyond its pale, and in reference to which it has no means of obtaining information on oath? Yet such is the case, and thus the Jersey law is converted into a mere tool of iniquity and oppression. In speaking of this strange anomaly in Jersey law, I am not referring to bills of exchange, or to securities of any sort, but merely to simple debts, free from any acknowledgment or signature whatever. In any other Court, such claims would not be entertained for a moment. Surely the law is barbarous enough for the people of Jersey, without its consequences being extended beyond its circumference. But, as matters stand at present, the case stands thus: A and B fall out together. Now B is a rogue. They go to law together, and B demands of A more than he is entitled to. The courts in England are about to decide upon the merits of the case. Meanwhile B learns that A is gone to Jersey for a short time on business, perhaps connected with this very affair, such, for instance, as looking up an important witness. What does B do? He immediately sends off a letter enclosing his little account to a Jersey lawyer, instructing him to demand payment or lock up A forthwith. The lawyer obeys, of course; A storms—protests—all in vain. He is incarcerated, and is told he may explain as much as he likes afterwards; but, in the meantime, must go to prison, or pay. At last poor A, whose liberty is important to him, wearied with the delays which it is the interest of the Jersey lawyers to raise in his suit for judgment, pays the demand into court (au greffe) to be adjudicated on—costs of law, costs of imprisonment and all. The latter item includes 10s. every time the prison door is opened to let him pass on his way to court—a journey he has too often to perform without much approach to a dénoûment, and whither he is obliged to go under escort like a criminal; and this process is repeated several times, without the cause even being called on for hearing. Worst of all, when A comes out, he has to decide upon the merits of the case. Meanwhile no remedy against B, who, of course, being satisfied, withdraws his suit at home.”

Another seeming anomalous process may be cited. An appeal lies from some of the small Courts to the full Court, or Nombre Supérieur, but the jurats who sit in the Court of First Instance are not debarred from sitting in the Full Court when an appeal from their own judgment is being heard! All the proceedings are carried on in the French language, which is again extremely inconvenient for the English residents. The Bailiff comments on the evidence and on the arguments of the pleaders, collects the opinion of the jurats, and delivers judgment. In Guernsey the decisions are given in private. “Pleadings in these courts are very simple,” says Mr. Ansted. “The plaintiff must serve on the defendant a summons or declaration, setting forth the nature of his claim, and in some cases the reasons on which it is grounded are added. If not sufficiently definite the declaration is sent back by the Court for amendment. If the defendant means to plead any objections by way of demurrer or special plea, these are at once heard and disposed of. If the parties join issue on the merits of the case, the Court hears the parties, or their counsel, and decides. If the case be intricate the parties are sometimes sent before the Greffier—in Guernsey before one of the jurats,—who reports, condensing the matter in dispute, and presenting the points to the court for decision.” Trial by jury does not exist in Guernsey. The court at Alderney is subordinate to that of Guernsey. The jurisdiction in matters of correctional police is final where the offence can be punished by a month’s imprisonment or a fine not exceeding £5; otherwise it is referred to Guernsey for trial. The Court of Sark, which has undergone many strange vicissitudes since its institution in 1579, consists of the seneschal, or judge, the prévôt and the greffier, all appointed by the feudal lord, or seigneur. The seneschal is an absolute authority in small cases, but his right of punishment is limited to the narrow bounds of inflicting a fine of about four shillings, and of sentencing to three days’ imprisonment. All cases demanding severer treatment are relegated to the Guernsey Courts. Enough has been said to show that Mr. Ansted was justified in declaring that though the islanders were unfitted by their habits and education for any radical change in their peculiar institutions, yet “the practice of the law courts both in Jersey and Guernsey has long been felt to be in many cases cumbrous, not to say objectionable. Indeed, where so much that is personal interferes in the administration of justice, and where personal and family influence cannot but be felt, it is not astonishing that reasonable complaints are sometimes heard.” Three times during the present century Royal Commissions have enquired into Jersey law, but their recommendations have been systematically ignored. No remedies have been carried out, and the islanders cling with extraordinary pertinacity to customs which are notoriously abused and to priveleges which are opposed to fair-dealing. The Channel Islands and the Isle of Man are standing evidence of the danger incurred by such independence of legal authority as they have hitherto been permitted to enjoy.

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 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, a practice founded on the belief that the murderer’s touch would cause the victim’s wounds to bleed afresh. Thus variously qualified to act as witness or prosecutor as occasion required, it is not surprising to find the dead as defendant also.

English history remembers the strange scene enacted in the monastery of Caen in 1087, when William the Conqueror lay dead there, and the ceremonials of his interment were interrupted by a weird appeal. Ascelin, the son of Arthur, loudly claimed as his, neither sold nor given, the land on which the church stood, and, forbidding the burial, he appealed to the dead to do him justice. More than one old English poem turned its plot round the ancient canon law, by which a burial might be delayed for debt. The dead was arrestable: a law afterwards set aside, “for death dissolved all things.” But in more codes than one death did not dissolve liability for the consequences of high treason.

In Scotland, in the year 1320, at the “black parliament” of Scone, several Scotsmen were convicted of conspiracy against King Robert the

Bruce. Most of them were drawn, hanged, and beheaded. But a Scottish historian of the time tells us that Roger of Mowbray, one of the accused, having died before his trial, “his body was carried to the place, convicted of conspiracy, and condemned to be drawn by horses, hung on the gallows, and beheaded.” It is to the credit of Bruce that he did not allow the corporal part of the sentence to be carried out, although many entries in the charter rolls[24] shew that the consequent escheats of the traitor’s lands served to reward the loyalty of others. His body convicted of conspiracy! How came this singular procedure into Scottish practice?

In England, towards the close of the fourteenth century, although escheats were not less keenly looked after than in Scotland—and that sometimes in cases 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, for instance, in 1397, the judgment of Parliament bore an express conviction of treason, “noun-obstant la mort de dit Roberd.” In 1400, John, Earl of Salisbury, challenged for treason by Lord Morley, was killed before the day appointed for the duel. The court not only adjudged him a traitor, 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.

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 death was no defence to a charge of “majesty;” proceedings could be raised to stamp the dead man’s name with the brand of treason; his kinsmen might if they chose deny and defend; but if they failed to clear him his goods were confiscated and his memory damned. There is in the annals of Rome at least one instance of a death-sentence of this sort pronounced after the accused was in his grave. Nor was its scope confined absolutely to high treason. The Church had a quiet way of appropriating tit-bits of barbaric policy for pious uses. The Emperor Theodosius 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, 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, 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 jurisprudence, with, peradventure, some added light from the law and practice of the Church, that the French devised their procés au cadavre, by which the memory of a dead traitor was attacked. Its special application was to lesemajesty described as divine and human, the former an elastic term covering offences against God and religion. Allied to this latter category, though not exactly of it, was the mortal sin of suicide. Self-slaughter was so deeply abhorrent to mediæval 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. 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 l’experience aux aultres. The very door-step of the house in which he lay was to be torn up, for the dead man was not worthy to pass over it. Impalement, transfixture by a stake, though well enough known on the continent as a punishment of the living, became there and in England alike, the special doom of the suicide. Yet the procés au cadavre had no footing in English law, and although it was already in 1320 received in Scotland, we shall find reason for thinking it not wholly welcome.

After the trial in 1320 before alluded to, the records in Scotland are silent for over two centuries, and it is not until 1540 that the process is heard of again. In that year 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, obviously forgetful of the fourteenth century instance, follow one another in the mistake of regarding Leslie’s as the first of its kind. The legality of the procedure was called in question at the time. Indeed, so loud was the murmur that it can still be heard in the act passed to put it to silence. “It is murmurit,” says the enactment, “that it is ane noveltie to rais summondis and move sic ane actioun aganis ane persoun that is deide, howbeit the commoun law directly providis the samin.” The three estates of parliament therefore on the motion of the lord advocate, declared unanimously “all in ane voce, but 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 deliverance of parliament as tribunal was by its terms an actual sentence upon the dead—that the deceased James “hes incurrit the panis of crime of lesemajeste” for which causes the court decerned “the memoure of the said umquhile James to be deleit,” and his possessions confiscated to the crown. Parliament which had unanimously voted the procedure well based in law, found that it was dangerous. It was necessary to restrict its scope. In 1542, it is on parliamentary record[44] that “the lordis thinkis the said act [i.e., of 1540], ower generale and prejudiciale to all the barions of this realme.” This would never do:—an act prejudicial to the barons! So it became statute law in 1542, that it should apply only to cases of grave treason, public and notorious during the offender’s life, and that prosecution for the future must be raised within five years after the traitor’s death. It was a reasonable restraint, not always observed.

During the reigns of Mary and James VI. a number of trials occurred in which this singular process was resorted to, and in some, if not all, of which the body of the dead appeared at the bar. Occasionally it was embalmed for the purpose. It had been a part of the border code, prevalent on the marches of England and Scotland, that an accused should, although dead, be brought to the place of judgment in person. In 1249, the marchmen of both realms had declared the law in that sense. They said that, in any plea touching life and limb, if the defendant died the body of him should be carried to the march on the day and to the place fixed between the parties, because—concludes this remarkable provision —“no man can excuse himself by death.” And in the end of the sixteenth century the borderers had not forgotten the tradition their forefathers had inherited in the thirteenth, for in 1597, when Scotsmen and Englishmen were in fulfilment of their treaty obligations presenting their promised pledges, the custom was scrupulously observed on the English side. All were there,—all, though all included one that was no more. “Thoughe one of the nomber were dead, yet was he brought and presented at this place.” They evidently believed on the borders, which Sir Robert Cary with some reason called an “uncristned cuntry,” that a man could best prove that he was dead by attendance in person.

In trials for treason this principle was pushed in some instances to strange extremes. Probably one underlying reason of this, at a date so late, was to make sure that no formality should be lacking to make the forfeiture effective. But the main reason one must believe lay in its being a traditional observance. In the trial in 1600, of the Earl of Gowrie and his brother for an alleged attempt on the king’s life, the privy council on the preamble that it was necessary to have their corpses kept and preserved unburied, issued an act to that effect, and the treasurer’s accounts contain an entry “for transporting of the corpis of Gowrie and his brother.” Their bodies were accordingly produced at the trial, and the sentence which pronounced them guilty of treason and lesemajesty during their lifetime, declared their name, memory, and dignity extinguished, and ordained that “the dead bodeis of the saidis Treatouris,” should be hanged, quartered, and gibbetted. Their “twa hedis,” a grim diarist 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, 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, perhaps, as many critics still think, on the surface only,—circumstantial and strong. The prosecution was therefore keenly pressed, and the reluctance of some of the judges overcome. A jocular jurist-commentator on these post-mortem trials, has remarked that the bones of a traitor could neither plead defences, nor cross-question witnesses. But in the dawn of the seventeenth century they could turn the sympathy of the court against the charge, as it appears they did in Logan’s case. The proofs, however, looked overwhelming, and the forfeiture was carried without a dissenting voice from the bench—from the bench, because it was, as all Scots treason-trials then were, a trial by judges only, not by judge and jury. Logan’s memory was declared extinct and abolished, and his possessions forfeited. The judgment, however, wreaked no vengeance on the exhumed remains. Humanity was asserting itself even in the trial of the dead, and that institution itself was doomed. Although in disuse ever after, it did not disappear from the theory of law until 1708, when the act 7 Anne, chapter 21, prescribing jury-trial for treason, assimilated the Scots law on the subject to that of England, and thus brought to an unregretted end one of the most gruesome of legal traditions.