Category: Arbitration

 
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Obiter.

By George Neilson.

 

THE claims of the legal profession to culture were cleverly belittled by Burns, when he made the New Brig of Ayr wax sarcastic over the town councillors of the burgh:—

“Men wha grew wise priggin owre hops an’ raisins,

Or gathered 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 happiness 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 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 termes 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.”

 

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 both pairs:—

“As many laws and lawyers do express,

Nought but a kingdom’s ill-affectedness.

Even so those streets and houses do but show

Store of diseases where physicians flow.”

 

It was an old story this linking of the practitioners 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,yates, gates

They selle hir science for winning.winning, gain

  • ···

For they nil in no maner greeno kind of good will

Do right nought for charitee.”

 

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 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 lawe

I sal fyndyn a man of lawe

Wyl takyn myn peny and let me goo.”

 

How reprehensible a thing to take fees was long reckoned admits of curious illustration. “Before the end of the thirteenth century,” says that never-failing authority, Pollock and Maitland’s “History of English Law,” “there already exists a legal profession, a class of men who make money by representing litigants before the courts and by giving legal advice. The evolution of this class has been slow, for it has been withstood 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 gnat 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, disregarding 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 (enarraret) more for 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 prophecy, 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 be 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 age 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 Durham, 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 the “virtue and vengeance of God.” And he added that about that time the Devil had frequently 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 mediæval 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 mediæval mind that it saw nothing irreverent in a title deed being taken in the Supreme name, or in marshalling “Deus Omnipotens” 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 King in his court that for God’s sake he ought to cause the lands to be restored and they assured him and gave him God himself as their guarantor (fidejussorem) 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 but 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 poets. Amongst such scraps there are few so successful and still fewer so pathetic as one in which a metrical historian, drawing near the close, both of his days and his chronicle, figured himself as summoned on short induciæ 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 me maistreis wyth hir brevis,elde, age

Ilke day me sare aggrevis,brevis, writ

Scho has me maid monitiouneilke, each

To se for a conclusiounequhilk, which

The quhilk behovis to be of det;of det, of right

Quhat term of tyme of that be set

I can wyt it be na way,wyt, know

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.bot, without

The maikless Madyn mon purchacemaikless, matchless

That help; and to sauff my statepurchace, procure

I haiff maid hir my advocate.sauff, save

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.

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Island Laws.

 

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.

 

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Post-Mortem 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 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.

 

 

 

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Barbarous Punishments.

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 unfortunate offender should be drawn on a hurdle to the place of execution, there to be hanged by the neck till he be dead; that his head be severed from his body; 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 Blackstone, “by connivance, at length ripened by humanity into law, a sledge or hurdle was allowed to preserve the offender from the extreme torment of being dragged on the ground 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 13th, 1660, he writes, “I went out to Charing Cross to see Major-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 afternoon 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 our members, and they have severally conspired against him, and should each one suffer.” Evidently justice has not always spelt humanity.

Another 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 of 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 1601, 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 troublesome 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. Among the Romans strangulation, precipitation 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 public calamity overtakes us; the universal cry of the people is—“To the lion with the Christians Christiani ad leonem!”

Parricide was punished in a strange manner. The criminal, after being scourged, was tied or sewed up in a leather bag, with a 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 punishment 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 eye 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 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 aforesaid, 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 same party drink after his hand is so stricken off and the stump seared.

“xi. And the Sergeant of the Ewry shall also be then and there ready with cloths sufficient for the Surgeon to occupy about the same execution.

“xii. And the Yeoman of the Chandry shall also be then and there, and have in readiness seared cloths sufficient for the Surgeon to occupy about the same execution.

“xiii. And the Master Cook shall be 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 be also then and there ready, and hold upright the dressing-knife till execution be done.

“xiv. And the Sergeant of the Poultry shall be 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 be done. “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.”

In 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 tortured and then carried to the place of execution. There the flesh was to be torn with red-hot pincers from his breasts, his arms and thighs, and the calves of his legs; his right hand, holding the 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. Mutilation 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 convicted 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 other person, with intent to maim or to disfigure him, such person, his councillors, aiders, and abettors, should be guilty of felony without benefit of clergy, which implied the punishment of death. This Act was not repealed until 1828, and resulted in at least one curious case. 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 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 I. 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.

So late as 1712, five so called witches were hung at Northampton, and in 1716 Mrs. Hicks, and her daughter, aged 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 punishment with which we are now about to deal, that of pressing to death, peine forte 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 punishment 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 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.

Peine 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 sterner 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 was put into his mouth to revive him, and he was carried to take 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.

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Commonwealth Law and Lawyers.

 

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 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 occasionally 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 great middle class had arisen partly by the division of property consequent on the dispersion 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 Tenures and Estates; The Compleat Lawyer; The Rights of the Crown, and others of a like character, are yet worth poring over by studious 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 represented 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 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, be 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 representing the words.

A full report of this memorable trial is to be found in Rushworth’s Historical Collections, volume ii. parts 1 and 2. Carlyle in his Letters and 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,”[12] 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 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 filched 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 government under the name of the Commonwealth. Saint John once again appears in a public manner which indicates that he was a brave man who had no more fear of the pistol and dagger of 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 themselves, had during the latter part of our Civil War shewn sympathy with the cause of the Royalists. 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 Isaac Doreslaus, or Doorslaer as their ambassador. He was by birth a Dutchman and a very learned lawyer. He had come to this country before, the war broke out in 1642. He was then made, probably through the influence of his friend Sir Henry Mildmay, “Advocate of the Army.”[13] 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 Whitford, son of Walter Whitford, D.D. The murderer received a pension for this “generous action”[14] after the Restoration.

The English Parliament gave their faithful servant a magnificent funeral in Westminster Abbey, June 14, 1649, but when Charles the Second ascended the throne, his body was disturbed. His dust rests along with that of Admiral Blake and other patriots in a pit somewhere in Saint Margaret’s churchyard.[15] 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 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 overmastered 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 professed 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 what 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 government. 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, 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 amusements of the court, especially theatrical entertainments. 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 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, 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 inaccurate. This is not of much consequence however, as the documents from which it is compiled known as The Royalist Composition Papers, 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 parliament 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 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 Archbishop 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 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 Huntingdon, 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.”[16] 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 imprisonment.[17] Whether this stringent law was rigorously inforced we cannot tell. Probably in many cases the local justices would be 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 Insufficient 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 1653 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 entries of 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.

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The Little Inns 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

 

away to make room for the new Courts of Law, without any person evincing the smallest interest in its fate. Concerning 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

 

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, 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, but 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 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 concerning 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 position to answer; for when asked whether he knew of any trace of a connection between the society and an Inn of Court, he replied, “Certainly, I should say not. It 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 respecting 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 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 having been any students of law connected with the inn. “The oldest thing I 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 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’étre being gone, they will all sooner or later go the way of Lyon’s Inn, and become things of the past.

 

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Trial by Jury in Old Times.

 

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 determination 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 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 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, forasmuch as it seemeth these men of the jury, which have strangely acquitted the prisoner of his 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 holds to be proof of guilt, they may be charged in the Star Chamber, “for their partiality in finding a manifest offender not guilty.” In 1667, we find this view extended to the case of grand juries ignoring a bill on grounds which the court 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 bill against a man accused of murder; but, 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, however, and that assembly resolved “that the precedents 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 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 concourse 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 not 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 troublesome 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 together 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 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, and that the gaoler should bring fetters and 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 withdrew 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 by 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 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 you 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, which say, ‘No freeman ought to be amerced but 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.

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Trials of Animals.

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 processes 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 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 in the head and one fore leg, and afterwards to be strangled, which sentence was executed in the public square of the town. This was in 1386. Three years later, a horse was condemned to death at Dijon for having killed a man. In 1403, Simon de Baudemont, lieutenant of Meulan; Jean, lord of Maintenon; 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 “Curiosités Judiciaires et Historiques du 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 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 allowance 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 convicted, 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 1812. 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, and 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 gibbet, near and adjoining the gallows in the jurisdiction of the said monks, being 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:—“Sentence 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 given to the dogs 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 Beaufiré.

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 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 Societé 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 Lausanne 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 Lausanne, 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 having laid an egg. It was contended in support of the prosecution that eggs laid by cocks were of inestimable value for use in certain magical preparations; that a sorcerer would rather possess a cock’s egg than the philosopher’s stone; and that Satan employed witches to hatch such eggs, from which proceeded winged serpents most dangerous to mankind. On behalf of the gallinaceous 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 sometimes 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 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. But 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, would intervene by causing a miraculous manifestation by the mouth of a dumb witness.

Even more strange than the trials of oxen, pigs, etc., for offences 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 Societé 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 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, 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 jurisconsult, 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 interested in the case, they should be summoned throughout the diocese. This plea being admitted, the curé 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 day was appointed, but again not a single rat put in an appearance.

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.

 

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Cock-Fighting in Scotland.

 

 

IT is highly probable that the Romans introduced cock-fighting into this country. It is generally believed that the sport was made popular by Themistocles. On one occasion he saw two cocks fighting, and their courage greatly impressed him, and he 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.r.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 “Description 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, 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 dressynge

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 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 12 and 13 Vict. 3, 92, under which every person who shall in any manner 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 £5 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 amusement. 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 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, 23rd December, 1892.

 

Six legal wigs, like well-plumed tappit hens,

Sat brooding o’er a pair of fighting 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,

And 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 battle ended, but the fog remained.

 

A rustling of silk plumes upon the bench,

Five wigs bent low, and thus great Solon spake—

“’Twas in Kilbarchan that this fight was fought,

And straight the 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-law.

 

The illumined page of history reveals

Cock-fighting 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 Cæsar, too,

Loved much to back his bird; and, furthermore,

Marc Antony’s gamecocks did always lose

When pitted against Cæsar’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,

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?

And what of hares in coursing run to death?

Of quivering foxes torn by yelling hounds?

Of wheeling pigeons slaughtered for a prize?

We make no mention of the common use,

 

Of otter hunting, grouse and pheasant drives.

And of the sport termed noble, where the stag

Is forced upon the guns that lay him low.

No doubt, two blacks can never make one white,

Nor multiplying blacks 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

Of nineteen beasts protected by the law,

Though thus the list concludes, “and other kinds
Of animals domestic,” or like words.

Are we to find Game Cocks, domestic fowls?

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, bull-fights, dog-fights, and all

Vile sports and brutish cruelty to beasts,

The spirit and the letter of the law

 

Do quite forbid, unanimous we hold
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? 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.

+

Fatal Links.

 

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 no bearing whatever on the 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 particular 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. She had not given notice of her intended departure, and nothing was known of it until some days later when Rauschmaier and Steiner also left the premises, saying that their landlady had previously quitted the house, leaving them in possession of her keys. This information, however, 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 washerwoman who also lived in the house, announced that she had found a thigh of a human body hidden in the loft. Further investigations revealed 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 limbs was discovered. An old gown and a petticoat, identified as portions of the dress of Holzmann, 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 preservation.

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 description 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 Holzmann’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 body. 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 Edgeware Road, wrapped in old rags and sacking. Subsequently the head was discovered in Regent’s Canal, and the limbs in a drain in the neighbourhood of Camberwell. Comparison between the various portions left no doubt as to the identity of the deceased, and James Greenacre, 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 right home to the accused, but the discovery, among Greenacre’s property, of some rags corresponding with the pieces covering the mutilated 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.

Although a knife, of a particular pattern, was left in the body, the murderer remained at large, and no clue to the terrible crime could be unearthed. Nine months later the bundle of notes, untouched, was found hidden in a wall, but long years passed before the mystery was completely solved. In 1822 a Bow Street runner named Denovan, 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 Begbie, 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 confidant 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 criminal named Mackoul, who had lived in Edinburgh 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 examination 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 executed, leaving a shady memory to be invested with undeserved romance by a poet 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 endeavours 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 important 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 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 complete 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 indictment, 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 order, as was supposed, to many 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. Martin was startled and horrified by dreaming, on three successive nights, that Maria had been murdered and buried in the Red Barn. After much persuasion her husband and son consented to search the place, and there, in the exact spot 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 Ulick 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 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 “big black James.” He had absconded and 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 man’s habits and resorts that he was captured within a few hours. From Maynard the names of his partners in guilt, Bevel and Marsh, were obtained, but 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 Bevel would be found. From a crowd of other prisoners Mrs. Greenwood 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 dreams, 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 modern courts of law, but in past ages it was freely employed, and has served to bring criminals to the gallows. 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 neighbouring 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 visitations, the frightened fuller at length acquainted the authorities with his story. Immediate 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. Remembering 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? The 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 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 had 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 the paper and the letters supposed to have been removed might become visible. Permission was given to try the experiment, and on the application 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 spectroscope 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 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 convicted 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 extreme importance. Hardly a serious crime is investigated without the application of one or other of these scientific methods of detection, and with each success the career of the criminal becomes increasingly difficult and arduous, and his chances of success more remote. Of remarkable discoveries of crime the microscope, the camera, and the spectroscope furnish the most subtle instances, and it is quite possible that before long other methods of investigation, founded on the most recent scientific achievements, will also be brought into operation. The phonograph and the Röntgen rays are only waiting their turn to serve in the cause of justice.