Part 1
The Law's Lumber Room
_Of this Edition 600 copies have been printed for England and America._
The
Law's Lumber Room
By
Francis Watt
London
John Lane, The Bodley Head, Vigo St. Chicago: A. C. McClurg & Co.
MDCCCXCV
TO WILLIAM ERNEST HENLEY FLOTSAM AND JETSAM FROM HIS OLD JOURNAL
PREFATORY
To the Lumber Room you drag furniture no longer fit for daily use, and there it lies, old fashioned, cumbrous, covered year by year with fresh depths of dust. Is it fanciful to apply this image to the Law? Has not that its Lumber Room of repealed Statutes, discarded methods, antiquated text-books--"many a quaint and curious volume of forgotten lore"?
But law, even when an actual part of the life of to-day is like to prove a tedious thing to the lay reader, can one hope to find the dry bones of romance in its antiquities? I venture to answer, "Yes." Among all the rubbish, the outworn instruments of cruelty, superstition, terror, there are things of interest. "Benefit of Clergy," the "Right of Sanctuary," bulk large in English literature; the "Law of the Forest" gives us a glimpse into the life of Mediæval England as actual as, though so much more sombre than, the vision conjured up in Chaucer's magic _Prologue_. "Trial by Ordeal" and "Wager of Battle" touch on superstitions and beliefs that lay at the very core of the nation's being.
"As full of fictions as English law," wrote Macaulay in the early part of the century; but we have changed that, we are more practical, if less picturesque, and John Doe and all his tribe are long out of date. Between the reign of James I. and that of Victoria all the subjects here discussed have suffered change, with one exception. The "Press-Gang" is still a legal possibility, but how hard to fancy it ever again in actual use!
I fear that these glimpses of other days may seem harsh and sombre; there is blood everywhere; the cruel consequences of law or custom are pushed to their logical conclusions with ruthless determination. The contrast to the almost morbid sentimentalism of to-day is striking. So difficult it seems to hit the just mean! But the improvement is enormous. Gibes at the Law are the solace of its victims, and no one would deprive them of so innocent a relief, yet if these cared to enquire they would often find that the mark of their jest had vanished years ago to the Lumber Room.
The plan of these papers did not permit a detailed reference to authorities, but I have mentioned every work from which I derived special assistance. I will only add that this little book originally appeared as contributions to the _National Observer_ under Mr W. E. Henley's editorship. I have made a few additions and corrections.
CONTENTS
PAGE
BENEFIT OF CLERGY 1
PEINE FORTE ET DURE 10
A PASSAGE IN SHAKESPEARE (FINES AND RECOVERIES) 26
THE CUSTOM OF THE MANOR 36
DEODANDS 54
THE LAW OF THE FOREST 62
PAR NOBILE FRATRUM (JOHN DOE AND RICHARD ROE) 74
SANCTUARY 84
TRIAL BY ORDEAL 98
WAGER OF BATTLE 107
THE PRESS GANG 120
SUMPTUARY LAWS 129
BENEFIT OF CLERGY
"Benefit of Clergy" is a phrase which has entered into English literature and English thought. The thing itself exists no longer, though the last traces of it were only removed during the present reign; but it so strikingly illustrates certain peculiarities of English law-making, it has, moreover, so curious a history as to be interesting even to-day. It took its rise in times when the pretensions of the Church, high in themselves, were highly favoured by the secular power. The clergy was a distinct order, and to subject its members to the jurisdiction of the secular courts was deemed improper; so, when a clerk was seized under a charge of murder, or some other crime, the ordinary stepped forth and claimed him for the "Court Christian," whereto the whole matter was at once relegated. There the bishop or his deputy sat as judge. There was a jury of twelve clerks before whom the prisoner declared his innocence on oath. He was ready with twelve compurgators (a species of witnesses to character) who, after their kind, said more good of him than they had any warrant for; after which, on the question of fact, some witnesses were examined for, but none against him. This curious proceeding, which was not abolished till the time of Elizabeth, soon became a sham. Nearly every accused got off, and the rare verdict of guilty had no worse result than degradation or imprisonment.
Now, so far, the system is intelligible, but in the succeeding centuries it lost this quality. English legal reformers have ever shown a strong disinclination to make a clean sweep of a system, but they keep tinkering at it year after year with a view of making it more rational or better adapted to current needs. They did so here, and the result was a strange jumble of contradictions. First, the privilege was confined to such as had the clerical dress and tonsure, afterwards it was extended to mere assistants, the very door-keepers being held within the charmed circle; yet the line had to be drawn somewhere, and how to decide when every ruffian at his wits' end for a defence was certain with blatant voice to claim the privilege? Well, could he read? If so, ten to one he was an ecclesiastic of some sort, and therefore entitled to his clergy. And it soon came that this was the only test demanded. If you could read you were presumed a parson, and had your right to at least one crime free. As no woman could possibly be ordained, she could not "pray her clergy"--(an exception was made in the case of a professed nun)--nor might a _bigamus_, who was not a man who had committed bigamy, but one who "hath married two wives or one widow." However, a statute (1 Edw. VI., c. 12, s. 16, _temp._ 1547) made an end of this latter distinction by declaring, with quaint tautology that _bigami_ were to have their clergy, "although they or any of them have been divers and sundry times married to any single woman or single women, or to any widow or widows, or to two wives or more." Before this it might well be that your chance of saving your neck depended on whether you had married a widow or not; which species was dangerous in a sense undreamt of by Mr Weller. As regards the reading, it must not be supposed that a difficult examination was passed by the prisoner before he escaped. You had but to read what came to be significantly called the Neck-verse from the book which the officer of court handed you when you "prayed your clergy." The Neck-verse was the first verse of the fifty-first Psalm in the Vulgate. It was only three words--_Miserere mei, Deus_: "Have mercy on me, O God." It seems strange that it was ever recorded of anyone that he did not read, and was therefore condemned to be hanged; for surely it were easy to get these words by heart and to repeat them at the proper time? This must have been done in many cases, and yet sometimes criminals were so densely ignorant and stupid, or it might be merely bewildered, that they failed; then the wretch paid the penalty of his life. "_Suspendatur_," wrote the scribe against his name, and off he was hauled. The endless repetition of this word proved too much for official patience, and with brutal brevity the inscription finally appears, "Sus." or "S."
And now the Neck-verse was free to everyone were he or were he not in holy orders, and he claimed the privilege after conviction, but in the reign of Henry VII. (1487) an important change was made. A person who claimed clergy was to be branded on the crown of his thumb with an "M" if he were a murderer, with a "T" if he were guilty of any other felony; if he "prayed his clergy" a second time this was refused him, unless he were actually in orders. Of course the mark on the thumb was to record his previous escape from justice. It was with this "Tyburn T" (as it was called in Elizabethan slang) that Ben Jonson was branded. It is only within the last few years that careful Mr Cordy Jeaffreson has exhumed the true story from the Middlesex County Records. The poet quarrelled and fought a duel with Gabriel Spencer, an actor, and probably a former colleague. The affair came off at Shoreditch. Jonson, with his rapier, which the indictment (for a reason explained in the chapter on "Deodands") values at three shillings, briskly attacked his opponent, and almost immediately gave him a thrust in the side, whereof Spencer died then and there. Ben was forthwith seized and thrown into prison. Whilst waiting his trial he said that spies were set on him, but he was too much for them, and afterwards all the judges got from him was but "Ay" and "No." Why spies should have been necessary in so plain a case is far from clear. It is more significant that a devoted priest succeeded in converting him for the time to Roman Catholicism, and he afterwards confessed to Drummond of Hawthornden that he had come near the gallows. However, what he said, or did not say, is of little weight as compared with the evidence of contemporary judicial records. The fact is clear that the poet of _Every Man in his Humour_, the cunning artist of _Queen and Huntress_, and _Drink to me only with thine Eyes_, had a true bill found against him by the grand jury, who sat, by the way, in a tavern, for as yet Hicks Hall, the predecessor of the Session's-House on Clerkenwell Green, was not.
In October 1598, he was taken to the Old Bailey to stand his trial. He pleaded guilty, asked for the book, read like a clerk ("Jonson's learned sock," forsooth!), and as the strangely abbreviated Latin of the record has it, "_sign' cum lra' T et del_," that is, marked with the letter "T," and set at large to repair to "The Sun," "The Bolt," "The Triple Tun," or some other of those dim, enchanting Elizabethan taverns, there to give such an account of the transaction as sufficed to dissemble it till this age of grubbers and dictionaries wherein you are destined to nose every ancient scandal as you go up the staircase of letters. It has been suggested that the officer, moved to inexplicable tenderness, touched him with a cold iron. The only ground for this is that Dekker, in his savage Satiro Mastix; or, _The Untrussing of the Humourous Poet_, makes no reference to the "Tyburn T." One fancies that Ben speedily acquired a trick of carrying his hand so that the mark was not readily seen, or he may have cut or burnt it out as others did. All the same, the best evidence shows it to have been there.
In the reign of James I. another change was made. Women got the benefit of clergy in certain cases, and afterwards they were put on the same footing as men. Then in 1705 the necessity for reading was abolished, and in 1779 so was branding.
But another process was going on all this time. A great and ever-increasing number of crimes were declared to be without benefit of clergy. The selection was somewhat capricious. Among the exempted felonies were abduction with intent to marry, stealing clothes off the racks, stealing the kings' stores, and so on. Naturally the whole subject fell into inextricable confusion, and when it was abolished in 1827, even pedants must have given a sigh of relief. One detail escaped the reformer: since the time of Edward VI. every peer ("though he cannot read," saith the statute) enjoyed a privilege akin to that of clergy, and it was not till 1841 that this last vestige of the system vanished from the statute-book. I will only add that, in its details, "benefit of clergy" was even more grotesque and fantastic than it has here been possible to set forth.
PEINE FORTE ET DURE
In England during many centuries a prisoner was called to the bar before trial and enjoined to hold up his right hand, by which act he was held to admit himself the person named in the indictment. The clerk then asked him, "How say you, are you guilty or not guilty?" If he answered, "Not guilty," the next question was: "Culprit, how will you be tried?" to which he responded, "By God and my country." "God send you a good deliverance," rejoined the official, and the trial went forward. If the accused missed any of these responses, or would not speak at all, and if the offence were treason or a misdemeanour, his silence was taken for confession of guilt, and sentence was passed forthwith. If the charge were felony, a jury was empanelled to try whether he stood "mute of malice," or "mute by the visitation of God." If this last were found, the trial went on; if the other, he was solemnly warned by the judges of the terrible consequences summed up by Lord Coke (trial of Sir Richard Weston in 1615, for Sir Thomas Overbury's murder) in the three words--_onere, frigore, et fame_. The proceedings were most commonly adjourned to give him time for reflection; but if after every exhortation he remained obdurate, then he was adjudged to suffer the _peine forte et dure_. The judgment of the Court was in these words: "That you return from whence you came, to a low dungeon into which no light can enter; that you be stripped naked save a cloth about your loins, and laid down, your back upon the ground; that there be set upon your body a weight of iron as great as you can bear--and greater; that you have no sustenance, save on the first day three morsels of the coarsest bread, on the second day three draughts of stagnant water from the pool nearest the prison door, on the third day again three morsels of bread as before, and such bread and such water alternately from day to day; till you be pressed to death; your hands and feet tied to posts, and a sharp stone under your back."
There is but one rational way to discuss an institution of this sort. Let us trace out its history, for thus only can we explain how it came to have an existence at all. For the prisoner himself there was usually a very strong reason why _he_ should stand mute. If he were convicted of felony his goods were forfeited; while in case of capital felony, the result of attainder was corruption of blood so that he could neither inherit nor transmit landed property. Often he must have known that conviction was certain. Had he fondness enough for his heirs--children or other--to make him choose this hideous torture instead of milder methods whereby the law despatched the ordinary convict from this world? Well, very many underwent the punishment. Between 1609-1618 the number was thirty-two (three of them women) in rural Middlesex alone. "_Mortuus en pen' fort' et dur'_," so the clerk wrote for epitaph against each name, and something still stranger than the penalty itself is revealed to us by an examination of the original records. Many of the culprits were evidently totally destitute, and these underwent the _peine forte et dure_ from stupidity, obstinacy, or sheer indifference to mortal suffering and death.
The custom of pressing did not obtain its full development at once, and there is some difficulty as to how it began. A plausible explanation is given in Pike's "History of Crime," and is supported by the authority of the late Mr Justice Stephen. At one time a man charged with a serious offence was tried by ordeal; but by paying money to the king, it was possible to get the exceptional privilege of a trial by jury. Thus, when the accused was asked how he would be tried, his answer originally ran, "by God" (equal to by ordeal), or "by my country" (equal to by jury), since to put yourself on the country meant to submit yourself to this last. But trial by ordeal was abolished about 1215, and the alternative was a privilege to be claimed, not a necessity to be endured. Offenders soon discovered that by standing mute and declining to claim this privilege, they put the Court in a difficulty. The ideas of those distant days were simple exceedingly, and a legal form had strange force and efficacy. To put a prisoner before a jury without his consent was not to be thought of; but how to get his consent? At first the knot was rather cut than loosened. Thus, in some cases, the accused were put to death right off for not consenting to be tried "according to the law and custom of the realm." Then this was held too severe, and under Edward I., in the proceedings of the Parliament of Westminster, occurs the earliest definite mention of the punishment. It was enacted that notorious felons refusing to plead should be confined in the _prison forte et dure_. Here they went "barefooted and bareheaded, in their coat only in prison, upon the bare ground continually night and day, fastened down with irons," and only eating and drinking on alternate days as already set forth. It was bad enough, no doubt, but not of necessity fatal. So the authorities perceived, and they again cut the knot by a policy of starvation. So one infers from the case of Cecilia, wife of John Rygeway, in the time of Edward III. Cecilia was indicted for the murder of her husband; she refused to plead. Being committed to prison, she lived without meat or drink for forty days; and this being set down to the Virgin Mary, she was thereupon allowed to go free. This procedure seems to have been found too slow, and the increase of business at the assizes seemed like to end in a hopeless block. Were the judges to encamp in a country town while the prisoners made up their mind as to pleading? Something was wanted to "mend or end" the stubborn rascals; and under Henry IV., in the beginning of the fifteenth century, the "prison" _forte et dure_ became the "peine" _forte et dure_: with the consequence that, if the accused declined to plead, there was an end of him in a few hours, the provision of bread and water being a mere remnant of the older form of sentence. This procedure lasted till 1772, when the 12 Geo. III., c. 20 made "standing mute in cases of felony equivalent to conviction." In 1827 it was enacted by 7 and 8 Geo. IV., c. 28, "that in such cases a plea of not guilty should be entered for the person accused." The curious formal dialogue between the clerk and the prisoner was abolished that same year. Something stronger than exhortation was now and again used before the obdurate prisoner was sentenced to pressing, thus at the Old Bailey in 1734, the thumbs of one John Durant were tied together with whipcord, which the executioner strung up hard and tight in presence of the Court; he was promised the _peine forte et dure_ if this did not answer, but upon a little time being given him for reflection, he speedily made up his mind to plead not guilty.
It is difficult to explain the distinction drawn between ordinary felony on the one hand and treason and misdemeanours on the other. Perhaps the explanation is that the last, being much lighter offences, were never made the subject of trial by ordeal, and that treason being a crime endangering the very existence of the State, a sort of necessity compelled the judge to proceed in the most summary manner. No student of English History needs to be reminded that a trial for treason resulted almost as a matter of course in a conviction for treason. Peers of the realm had many privileges, but they were not exempt from the consequences of standing mute. Nor, as already noted, were women. Perhaps it were unreasonable to expect a criticism of the system from contemporary judges or text writers; but what they did say was odd enough; they did not condemn pressing, but they highly extolled the clemency of the law which directed the Court to reason with and admonish the accused before it submitted him to this dread penalty.
I shall now give some examples of practice. Fortunately (or unfortunately you may think as you read) we have at least one case recorded in great detail, though, curiously enough, it has escaped the notice of an authority so eminent as Mr Justice Stephen.
Margaret Clitherow was pressed to death at York on Lady Day, March 25th, 1586, and the story thereof was written by John Mush, secular priest, and her spiritual director. Margaret's husband was a Protestant, though his brother was a priest, and all his children appear to have been of the older faith. Accused of harbouring Jesuit and Seminary priests, of hearing mass, and so on, she was committed to York Castle, and in due time was arraigned in the Common Hall. In answer to the usual questions, she said that she would be tried "by God and by your own consciences," and refused to make any other answer. It was sheer obstinacy: she was a married woman, and she could have lost nothing by going to trial. But she coveted martyrdom, which everybody concerned appears, at first at any rate, to have been anxious to deny her. It was plainly intimated that if she would let herself be tried she would escape: "I think the country," said Clinch, the senior judge, "cannot find you guilty upon the slender evidence." The proceedings were adjourned, and the same night "Parson Whigington, a Puritan preacher," came and argued with her, apparently in the hope of persuading her to plead; but he failed to change her purpose; the next day she was brought back to the Hall. Something of a wrangle ensued between herself and Clinch, and in the end the latter seemed on the point of pronouncing sentence. Then Whigington stood up and began to speak; "the murmuring and noise in the Hall would not suffer him to be heard;" but he would not be put off, and "the judge commanded silence to hear him." He made a passionate appeal to the Court ("Did not perhaps God open the mouth of Balaam's ass?" is the somewhat ungracious comment of Father Mush.) "My lord," said he, "take heed what you do. You sit here to do justice; this woman's case is touching life and death, you ought not, either by God's law or man's, to judge her to die upon the slender witness of a boy;" with much more to the same effect. Clinch was at his wits' end, and went so far as to entreat the prisoner to plead in the proper form: "Good woman, I pray you put yourself to the country. There is no evidence but a boy against you, and whatsoever they (the jury) do, yet we may show mercy afterwards." She was moved not a whit; and then Rhodes, the other judge, broke in: "Why stand we all day about this naughty, wilful woman?" Yet once again she was entreated, but as vainly as before; it was evident that the law must take its course; and "then the judge bade the sheriff look to her, who pinioned her arms with a cord." She was carried back to prison through the crowd, of whom some said, "She received comfort from the Holy Ghost;" others, "that she was possessed of a merry devil." When her husband was told of her condemnation, "he fared like a man out of his wits, and wept so vehemently that the blood gushed out of his nose in great quantity." Some of the Council suggested that she was with child. There seems to have been some foundation for the remark, at any rate, Clinch caught eagerly at the idea. "God defend she should die if she be with child," said he several times, when the sheriff asked for directions, and others of sterner mould were pressing for her despatch. Kind-hearted Whigington tried again and again to persuade her; and the Lord Mayor of York, who had married her mother ("a rich widow which died before this tragedy the summer last"), begged her on his knees, "with great show of sorrow and affection," to pronounce the words that had such strange efficacy. It was all in vain, so at last even Whigington abandoned his attempt, and "after he had pitied her case awhile, he departed and came no more."