Francis Watt

“ Of old time man's dress was rich and varied, but how to catch its vanished effect? In Courts of Justice there is still the splendid, if occasional, bravery of the judge. See the same man in private, gaze on divinity disrobed, and the disenchantment measures for you what is lost in the splendid garb of other days. ”

“ Between the reign of James I. and that of Victoria all the subjects here discussed have suffered change, with one exception. The "Press-Gang" is still a legal possibility, but how hard to fancy it ever again in actual use!
I fear that these glimpses of other days may seem harsh and sombre; there is blood everywhere; the cruel consequences of law or custom are pushed to their logical conclusions with ruthless determination. The contrast to the almost morbid sentimentalism of to-day is striking. So difficult it seems to hit the just mean! But the improvement is enormous. ”

“ I venture to answer, "Yes." Among all the rubbish, the outworn instruments of cruelty, superstition, terror, there are things of interest. "Benefit of Clergy," the "Right of Sanctuary," bulk large in English literature; the "Law of the Forest" gives us a glimpse into the life of Mediæval England as actual as, though so much more sombre than, the vision conjured up in Chaucer's magic Prologue. "Trial by Ordeal" and "Wager of Battle" touch on superstitions and beliefs that lay at the very core of the nation's being. ”

“ At one time a man charged with a serious offence was tried by ordeal; but by paying money to the king, it was possible to get the exceptional privilege of a trial by jury. Thus, when the accused was asked how he would be tried, his answer originally ran, "by God" (equal to by ordeal) , or "by my country" (equal to by jury) , since to put yourself on the country meant to submit [Pg 14] yourself to this last. But trial by ordeal was abolished about 1215, and the alternative was a privilege to be claimed, not a necessity to be endured. ”

“ Recoveries were methods of disentailing an estate by means of a complicated series of fictions. They arose in this way:—Before 1285, when land was given to a man and the heirs of his body, the judges ruled that, the moment a son was born, the father [Pg 28] held the estate as a simple freehold, which he could sell or make away with very much as he chose. The great landowners were ill-content at this; they meant their tenants to enjoy their estates only as long as they rendered useful service in return, and if issue failed a man, they thought the land should revert to his lord on his death. ”

“ You may possibly have noted the form of indictment in the murder cases; and if so, one odd detail must have impressed you. Having set forth the weapon used by the murderer, the document invariably goes on to estimate its money value: for, having been instrumental in taking human life, it was forfeit to the Crown, and it or its price had to be duly accounted for. It was called a Deodand, but the name was applied to many things besides arms used with malice aforethought. Thus, a man died by misadventure: then was the material cause active or passive? ”

“ Manors, they used to say, arose in this fashion. A great lord obtained a piece of land from the King; part he disposed of to tenants who held of him in freehold (this [Pg 37] sub-infeudation was stopped by the statute quia emptores in 1290) ; the rest was his domain, on part of which he built the manor house, another part was cultivated by villeins, then the cotters had dwellings with portions of land, and the residue was waste, where the folk of the manor pastured their cattle, gathered fuel, and made their ways. ”

“ In the Star Chamber on June 12th, 1600, my Lord Keeper gravely admonished the judges to look to all sorts of abuses—"Solicitors and pettifoggers," "Gentlemen that leave hospitality and housekeeping and hide in cities and borough towns," "Masterless men that live by their sword and their wit, meddlers in princes' matters and libellers," and last, but not least, "to the vanity and excess of woman's apparel." ”

“ For the origin of the custom one must go far back. In Hebrew, Greek, and Roman legislation, the physical object that caused the loss of human life was held accursed, and hence was destroyed or forfeited. In England a thing became a deodand only when the coroner's jury (or more rarely some other authority) had found it the cause of death; which death, moreover, must happen within a year and a day of the accident. If it did, the thing was seized, no matter where it was, or who had it. In default of delivery the township was liable, and it was the Sheriff's duty to get the value therefrom. ”

“ To put a prisoner before a jury without his consent was not to be thought of; but how to get his consent? At first the knot was rather cut than loosened. Thus, in some cases, the accused were put to death right off for not consenting to be tried "according to the law and custom of the realm." Then this was held too severe, and under Edward I., in the proceedings of the Parliament of Westminster, occurs the earliest definite mention of the punishment. It was enacted that notorious felons refusing to plead should be confined in the prison forte et dure. ”

“ Perhaps the explanation is that the last, being much lighter offences, were never made the subject of trial by ordeal, and that treason being a crime endangering the very existence of the State, a sort of necessity compelled the judge to proceed in the most summary manner. No student of English History needs to be reminded that a trial for treason resulted almost as a matter of course in a conviction for treason. Peers of the realm had many privileges, but they were not exempt from the consequences of standing mute. ”

“ The Forest Charter of Canute the Dane (dated 1016) is a myth; but it is certain that, before the Conquest, the sovereign had a peculiar—howbeit, an undefined—property in the woodland. The Conqueror, who, according to the Saxon Chronicle, loved the tall deer as if he had been their father, devastated far and [Pg 64] wide to make the New Forest; and he and his immediate successors punished hurt done to the deer with loss of life or limb. ”

“ Many customs are old Saxon, many customs were invented, or at any rate twisted into fantastic rights from mere whim or a not very cleanly sense of humour, but here one must often merely accept the fact, for to try it by the rule of right reason were absurd.
Most manors were held of the Crown, in return for services sometimes of the oddest [Pg 40] character; thus, Solomon De Campis (or Solomon At-Field) had land in Kent on condition that, "as often as our lord the King would cross the sea, the said Solomon and his heirs should go along with him to hold his head on the sea, if it was needful;" ”

“ The fantastic peaked shoes of the fifteenth century, sometimes only held up by a chain from the girdle, were fair mark for the lawgiver, and under Edward IV. no less person than a lord was allowed peaks exceeding two inches. An Act in the same reign banned the costly head-gear of women. Henry VIII. saw to men's garb as well as their beliefs. His first Parliament forbade costly apparel, and there is preserved in the Record Office a letter from Wolsey enclosing to the King, at his request, the Act of Apparel, with an abstract, for examination and correction. ”

“ Even under Edward I.'s comparatively humane rule the verderer held an inquest upon a deer found dead in the Regard, just as the coroner did upon a man's body, and the jury found how the creature came to its end. The very arrows gleaned there were entered in the verderer's role. The freeholder within that [Pg 66] charmed ground might not fell his own timber without leave, lest he should spoil the Cover: nor could he turn out his goats to browse, for they would taint the pasture; whilst he must feed his sheep in moderation, else he committed the grievous offence of surcharging the forest. ”

“ An attempt to revive royal rights over the woodland hastened the fall of Charles the First, and then the Commonwealth gave the forest system its death-blow, though it was not till the time of George III. that the great mass of enactments was formally repealed. A Court of Swainmote lingers in the New Forest and elsewhere, and its officials, called Verderers, [Pg 65] albeit shorn of their ancient power and splendour, do their quaint antics still; but by an odd, though happily not singular inversion, those old popular wrongs are now become popular privileges ”

“ Stories of violence and cruelty serve not our purpose unless they illustrate some point, and I shall but refer to two other cases.
Major Strangeways was arraigned in 1658 (under the Commonwealth be it noted) for the murder of his brother-in-law. In presence of the coroner's jury he was made to take the corpse by the hand and touch its wounds, for it was supposed that, if he were guilty, these would bleed afresh. There was no bleeding, but this availed him nothing, and he was put on his trial at the Old Bailey in due course. ”

“ It took its rise in times when the pretensions of the Church, high in themselves, were highly favoured by the secular power. The clergy was a distinct order, and to subject its members to the jurisdiction of the secular courts was deemed improper; so, when a clerk was seized under a charge of murder, or some other crime, the ordinary stepped forth and claimed him for the "Court Christian," whereto the whole [Pg 2] matter was at once relegated. There the bishop or his deputy sat as judge. There was a jury of twelve clerks before whom the prisoner declared his innocence on oath. ”

“ No one under the degree of knight was to wear a cap of velvet. But these were not pure sumptuary regulations: they were for protection of home industries. A statute of the previous reign had declared that no man was to buy more than twelve hats or caps, be it out of this realm; and a previous Act of Elizabeth had strangely provided that if anyone sold foreign apparel on credit for longer than [Pg 135] eight days to persons not having £3000 a year he should be without legal remedy against his debtor. ”

“ A Fee-buck and a Fee-doe were allotted to every verderer yearly (but these were but wages in kind) ; and every lord of Parliament going or returning through the forest, on summons from the king, might take one or two beasts, but if no forester was at hand, he must sound his horn, lest the kill might seem done in secret. But all the king's horses and all the king's men could not quench English love of sport. ”

“ The coroner's jury returned the value of the deodand at next to nothing, e.g., "a horse, value three shillings," and the Court of "King's Bench" refused to disturb the finding. Hence one absurdity balanced another, and the doctrine was long defended. In 1820, Joseph Chitty, in his standard work on Prerogatives, maintains that "the forfeiture is rational so far as it strengthens the natural sensation of the mind at the sudden destruction of human life." ”

“ Gibes at the Law are the solace of its victims, and no one would deprive them of so innocent a relief, yet if these cared to enquire they would often find that the mark of their jest had vanished years ago to the Lumber Room. ”

“ He loved a jingle, so names like John Den and Richard Fen—rare in actual life—peopled his parchment, and strove for mastery in his mock combats. But his prime favourites were Doe and Roe, nor would he raise Den or Fen or any other ghost, excepting he had need of more than two. Here is a simple [Pg 75] instance of their use. In early times a man who commenced an action had to give surety that he would go on with it; nowadays, if he discontinue, he must pay the costs of the other side, but costs, incredible as it may sound, were not always the necessary shadow, or perhaps the substance, of law ”

“ During the strain and stress of our eighteenth century war-making, when we had every need of seamen to man our battle-ships, and could not afford the market price for them, there was much impressment, and through frequent appeals to the courts the law on the subject was exactly determined. ”

“ It is far more likely that, being the man of his age he was, he would read in and round the law as well as much else for its own sake, and that fines and recoveries were so odd in themselves, and so excellently illustrative of English history and procedure, that they fairly took his mighty fancy. ”

“ Venison, as lawyers understood it, was composed of Beasts of Forest—to wit, the hart, the hind, the hare, the boar, and the wolf—and Beasts of Chase. A Chase, which was like a park, but was not enclosed, might be held by a subject; but every forest was likewise a chase and a warren, and the beasts of chase were the buck, the doe, the martern, and the roe. ”