Part 2

Her execution was fixed for Friday, and the fact was notified to her the night before. In the early morning of her last day on earth she quietly talked the matter over with another woman. "I will procure," the woman said, "some friends to lay weight on you, that you may be quickly despatched from your pain." She answered her that it must not be. At eight the sheriffs came for her, and "she went barefoot and barelegged, her gown loose about her." The short street was crowded with people to whom she dealt forth alms. At the appointed place, one of the sheriffs, "abhorring the cruel fact, stood weeping at the door;" but the other, whose name was Fawcett, was of harder stuff. He "commanded her to put off her apparel," whereupon she and the other woman "requested him, on their knees, that she might die in her smock, and that for the honour of womankind they would not see her naked." That could not be granted, but they were allowed to clothe her in a long habit of linen she had herself prepared for the occasion. She now lay down on the ground. On her face was a handkerchief. A door was laid upon her. "Her hands she joined towards her face"; but Fawcett said they must be bound, and bound they were to two posts, "so that her body and her arms made a perfect cross." They continued to vex the passing soul with vain words, but at last they put the weights on the door. In her intolerable anguish she gave but a single cry: "Jesu! Jesu! Jesu! have mercy upon me!" Then there was stillness; though the end was not yet. "She was in dying one quarter of an hour. A sharp stone as much as a man's fist put under her back, upon her was laid a quantity of seven or eight hundredweight to the least, which, breaking her ribs, caused them, to burst forth of the skin." It was now nine in the morning, but not till three of the afternoon were the braised remains taken from the press.

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. He refused to plead, and made no secret of his motive; he foresaw conviction, and desired to prevent the forfeiture of his estate. He was ordered to undergo the _peine forte et dure_. The press was put on him angle-wise; it was enough to hurt, but not to kill, so the bystanders benevolently added their weight, and in ten minutes all was over. The dead body was then displayed to the public.

Again, in 1726, a man named Burnworth was arraigned at Kingston for murder. At first he refused to plead, but after being pressed for an hour and three-quarters with four hundredweight of iron, he yielded. He was carried back to the dock, said he was not guilty, and was tried, convicted, and hanged. There was at least one case in the reign of George II.--but enough of such horrors.

A PASSAGE IN SHAKESPEARE

FINES AND RECOVERIES

"Is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dust? Will his vouchers vouch him no more of his purchases, and double ones too, than the length and breadth of a pair of indentures?" Thus the Prince of Denmark moralising in the graveyard scene in Hamlet over the skull of a supposed lawyer: with more to the same effect, all showing that Shakespeare had a knowledge of law terms remarkable in a layman, and that he used them with curious precision. In the huge body of Shakespearian literature there are special works (one by Lord Chancellor Campbell) on the fact, which has been used to buttress up the Baconian authorship theory (indeed, it is the only positive fact at all in point). Again, it has been conjectured that the dramatist spent some time in a lawyer's office, and that phrases from the deeds he engrossed stuck in his memory. 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.

Recoveries were already some two hundred years old in his time, and, to judge from the tone of the passage, people must even then have held them in derision. But they were to last full two hundred years more; for not till 1833 did they vanish from the scene. 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 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. Hence in that year an act procured by their influence, called _De Donis Conditionalibus_, or the Statute of Westminster the Second (13 Ed. I., c. 1), created the Estate Tail (_i.e._ _Taillé_, or restricted). It provided that land given to a man and his heirs as above, reverted to the original donor on failure of the donee's issue. Blackstone waxes eloquent over the evils that ensued. Children declined obedience to a father who could not disinherit; farmers lost their leases, which had no force against the heir; and creditors were defrauded of their debts, which constituted no charge on the land, nay, treasons were fostered, insomuch as the traitor's interest lapsing at his death, nothing was left for the king to seize. Yet it was not till the reign of Edward IV. that a device was found to evade the Statute. _Taltarum's Case_ was decided in 1472. It is loosely said that this established the validity of recoveries, but they were in use some time before, and Sir Frederick Pollock will have it that it was the oddity of the name which made a landmark of the decision. A Recovery was a sort of friendly or fictitious action, whereby the estate was adjudged to an outsider, whose claim, though baseless--if one did not look beyond the four corners of the action--was acquiesced in by the nominal defendant.

The mediæval lawyer was usually a priest, and he had found those entails grievous obstacles in the way of the Church's aggrandisement. Perhaps, too, as the country grew in wealth, so rigid a law of settlement bore hard on an ever-waxing commercial class. To repeal the Statute seemed impossible, but the great landowners, while proof against force and impermeable to argument, were not hard to outwit. A legal complication passed their understanding; and this one, however brazen, had the patronage of many powerful interests. Thus, and thus only, may the fact of their acquiescence be explained.

And now let us trace out the steps in a common recovery with "double voucher." The judges had already made one preparatory breach in the law. A tenant in tail could dispose of his estate if he left other lands of the same value; for these his heirs held under the same conditions as the original property. The principle of this decision was ingeniously used as a lever to overthrow the system.

Suppose A, tenant in tail, had contracted to sell his land to B: he began by formally disposing of it to C, usually his attorney, and technically called "Tenant to the _præcipe_," or writ. Then B commenced an action in the Common Pleas against C to recover the estate in question, which, he asserted, had been wrongfully taken from him. C, instead of defending the action, "vouched to warranty" A: that is, he called in A to defend, on the ground that the said A had covenanted to support his title; but A, instead of defending the action, "vouched to warranty" D. This last, called the "common vouchee" (in the form in Blackstone he appears as "Jacob Morland"), was always the "Crier to the Court," and for playing his part received the modest fee of fourpence on each recovery. At first he (Jacob) made a great show at fight; he denied all B's statements, and "put himself upon the country:" _i.e._ he demanded that the case should go before a jury for trial. B then craved leave "to imparl" (_i.e._ to have a private conference with Jacob), and the proceedings were solemnly adjourned. When they were resumed Jacob was not to be found: "he hath (it was adjudged) departed in contempt of the Court." Evidently, or so it seemed, he had no answer to make. Then B's claim was allowed; C was to have of the lands of A a quantity equal to what he had nominally lost; whilst A, in his turn, was to have the same remedy against Jacob, who, having no means at all, cheerfully accepted much paper responsibility. Then a writ was issued to the sheriff of the county wherein the lands were situate, directing him to give possession to B, whose title was constituted by a record of all the aforesaid transactions.

As the centuries went by the proceedings became ever less substantial, the action was always commenced by the issue of a writ in the usual way, but most of the other steps were only taken on paper. Sir Frederick Pollock says, that if the disentailer were a peer, a sergeant was actually briefed to move the court in the matter: also, one must note that lands held from the crown were never subject to this process (nor can they now be disentailed without a special act of Parliament). By another barefaced fiction, colonial property might be disentailed in England. The deed roundly asserted that the island of Antigua (or wherenot) lay in the parish of St Mary, Islington--the operation of this geographical miracle giving jurisdiction to the Court of Common Pleas. One would suppose that something simpler might have served; but though laymen jeered, lawyers regarded these quaint formalities with strange reverence. My Lord Coke mentions with solemn reprobation a counsel named Hoord who scoffed thereat in the House of Lords, and whom a judge gravely rebuked as not worthy to be of the profession of the law, for that he "durst speak against common recoveries;" and as late as 1820, Thomas Coventry, Esq., of Lincoln's Inn, concludes his learned treatise on the subject with an eloquent if slightly confused protest against any change, "which could know no end but an apparent confusion, or clearing away a path for the access of some modern Pretender to strip the ivy from the venerable oak of our boasted constitution, the only emblem that remains of its antiquity and endurance."

And now for a word on fines. These were so called for that they made an end of a controversy. They were simpler and even more ancient than recoveries. A fictitious action was begun by the purchaser against the vendor of an estate, wherein the latter soon gave in: the case was compromised, a fine was paid to the Crown, upon the Court giving its consent to this termination of the proceedings, and the record thereof became the purchaser's title. They were likewise used to bar entails, though they were not so effectual as recoveries. One of the first Acts of the Reform Parliament of 1833 was the Statute for the Abolition of Fines and Recoveries. It was a mere question of procedure, for the law itself remained unaltered: but disentailment was effected by the enrolment of a deed in Chancery. And now the dust lies thick on shelves of text-books--a whole system of learning, full of intricate details, the creation of centuries of perverse ingenuity.

And the land-owners? These, too, long since availed themselves of the dark and subtle devices of the conveyancer. Sir Orlando Bridgman, a great lawyer of the Commonwealth, and finally Chief Justice of the Common Pleas under Charles II., invented and perfected the system of family settlements which to-day secures the secular interests of our great historic houses, as well as, if less directly than, any enactment could do.

THE CUSTOM OF THE MANOR

Has chance or necessity ever opened to you the charter-chest of the respectable solicitor in some country town? Then, among his records, you have noted an interminable series of parchment volumes--very thick, very closely written, some centuries old, and one in current use. These are the court-rolls of the Manor of Wherenot. If you can spell out the beautifully written mediæval characters, you are sure to light on many a quaint record of by-gone folk and their ways, for, better than aught else, the manor and its muniments preserve for us the English past.

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 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. Sometimes these villeins were slaves, but each had his patch of soil, wherefor he rendered some servile office to his lord, ploughing his land, garnering his crops, or such like. The business of the manor was transacted in two courts, the Court Baron and the Customary Court. The first was attended by the freeholders, who themselves constituted the Court; the second by the villeins, who merely hearkened to and witnessed the doings of the lord or his steward. When a villein died, the fact that the new tenant had such and such a field on condition of rendering so many days' labour yearly was noted in the records or roll of the Customary Court, and this roll, or a copy of it, becoming his title, he was dubbed a copyholder. In theory he was a mere tenant at the will of the lord, but time fettered the lord's will, until the principle was evolved that it must be exercised according to the custom of the manor, for "custom" as Lord Coke put it, "is the life of the manor," and so it came about that the holder had fixity of tenure while he did his service. His position steadily improved, the slave became free, the servile toil a money payment, and now the court agenda merely register changes of title. This account of the manor may serve for description, but does not represent the real origin, which has not yet been exactly ascertained. It was a fragment of Old England, with a lord usually of Norman race as head, and the relations between head and members elaborated and controlled by the theories and devices of the mediæval lawyer. As manorial law was custom, old local usages were preserved unaltered; thus, whilst the root idea of feudalism was that the eldest son should inherit his father's land, and the manor itself did so descend, within it an extraordinary diversity of usage obtained. By a custom similar to that of Gavelkind (in Kent), the copyholder's estate was sometimes parted equally among all his sons. In other places, Borough-English prevailed, that is, the youngest son took everything, to the exclusion of his elder brothers; nay, by an odd application of the maxim "better late than never," a posthumous child ousted the brother already in possession; or, again, the widow or widower inherited. When the tenant died, the lord had a right to seize his best chattel (usually a beast), this was called a Heriot, and it is yet here and there exacted. 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 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;" and certain jurors solemnly present on their oath that "the aforesaid Solomon fully performed the aforesaid service." Our early kings provided against every possible contingency. One tenant enjoyed land by the service of holding the King's stirrup when he mounted his horse at Cambridge Castle. Another must make _hastias_ in the King's kitchen on the day of his coronation. The glossaries are dumb as to this mysterious dish, though the learned darkly hint at haggis! Or was it "a certain potage called the mess of _Giron_," which, being enriched with lard, was called _Maupygernon_--which last is possibly mediæval Welsh for a haggis? Thomas Bardolf, who died, lord of Addington, in 5 Edward III., was pledged to compound three portions of this dainty dish against Coronation Day, and serve them up smoking hot, one to the King, one to his Grace of Canterbury, and the third "to whomsoever the King would." Other manors were held on the tenure of presenting to the King a white young brach ("lady the brach" of _King Lear_) with red ears; of delivering a hundred herrings baked in twenty pasties; of finding the King a penny for an oblation, whenever he came to hear mass at Maplescamp, in Kent: gifts of roses, falcons, capons (which last dainties your mediæval sovereign held in special favour), were abundant. But how to riddle this one? The manor of Shrivenham, in Berks, was held (_temp._ Edward III.) by the family of Becket, whose head, whenever the King passed over a certain bridge in those parts, must present himself with two white capons, whereto he directed the royal attention in choice mediæval Latin, "Behold," he said, "my lord, these two capons, which you shall have another time, but not now," which pleasantry reminds one of the current vulgarism, "Will you have it now, or wait till you get it?" The service of the Dymocks, owners of Scrivelsby in Lincoln, as King's champions, and of the Duke of Norfolk, as Earl Marshal of England, curious enough in themselves, are too notorious for this crowded page.

A few quaint tenures are of quite modern origin. Thus the honour of Woodstock (an honour was a lordship over several manors: so "Waverley Honour" in Scott's great romance) is held by the tenure of presenting a banner each second of August at Windsor Castle; that being the anniversary of Blenheim, fought in 1704; and on each 18th of June the Duke of Wellington must likewise send to the same place, for the estate of Strathfieldsay, a tri-coloured flag to commemorate Waterloo. The last century legal antiquary pricked up his ears at a fine scandal which he fondly imagined in connection with the manors of Poyle and Catteshill, both near Guildford. Their holders were bound to provide a certain number (twelve in one instance) of young women, called _meretrices_, for the service of the royal court. Dry-as-dust shook his solemn head, invented pimp-tenure (a "peculiarly odious kind of tenure" he explained), and the forerunner of the man who writes to _The Times_ (it was then to the _Gentleman's Magazine_) cracked some not particularly choice jokes on the subject. A wider knowledge restored the moral character of the King, his lords, and the much-slandered young women, whose decent dust may now repose in peace. In mediæval Latin the word was widely used for the female servant general or special, and these were, it seems, neither more nor less than laundry-maids.

Manors of an early date were ofttimes held under other manors on equally whimsical conditions. A snowball at summer and a red rose at Christmas are extravagantly picturesque. A hawk was a common rent; but in one case it was carried to the Earl of Huntingdon's house, by the yielder, attended by his wife, three boys, three horses, and three greyhounds; and these must be housed for forty days at the earl's expense, while his countess must give the lady her second best gown. Again, the tenant of Brindwood in Essex, upon every change, must come with his wife, his man, and his maid, all a-horseback to the rectory, "with his hawke on his fist and his greyhound in his slip"; he blows three blasts with his horn, and then receives curious gifts, and thereafter departeth. The lord of the Manor of Essington, in Stafford, must bring a goose every New Year's Day to the head manor-house at Hilton. Here he drives it about the fire, which Jack of Hilton blows furiously, and (one regrets to add) most improperly. But Jack may be forgiven, for he is but "an image of brass about twelve inches high," whose description you read at length in old Thomas Blount, the great recorder of all these mad pranks.

The holding of Pusey in Berks by the Pusey Horn, gifted, it is said, by King Canute, is well-known. Sir Philip de Somerville, knight, was bound to hunt and capture the Earl of Lancaster's _greese_ (wild swine) for my lord's larder upon St Peter's Day in August. This he did till Holy-Rood Day, when he dined with the steward, and after dinner "he shall kiss the porter and depart." This same Sir Philip de Somerville held the Manor of Whychenover at half terms from the Earl on condition that there ever hung in his hall one bacon flitch to be assigned to a happy married couple yearly in Lent, after a variety of ceremonies like those in the more famous case of Dunmow: the disposal of the flitch there being likewise according to "the custom of the manor."