CHAPTER XI.

WILLS, QUAINT AND CURIOUS.

A last will and testament is the instrument whereby one disposes of his

property, to take effect after his death.[1]

The right to dispose of one’s property, by will, consistent with existing

rules of law, is one of the results of man’s social condition, based

upon an instinctive sentiment, akin to self love, which looks to the

preservation and alienation, according to the intent of the owner, of the

individual acquisitions, resulting from personal endeavor.

There is a vast amount of interesting information, in connection with

the history and forms of antique wills, and testamentary dispositions of

property, in one form or another, are of extremely ancient origin.[2]

Historians and law writers have told us that the will, as we know it,

is a Roman invention, but in this statement the testimony of others is

accepted as establishing the fact, rather than the knowledge, or want of

knowledge of the fact asserted. Indeed, writers are frequently given to

accepting and repeating the statements of others, without investigating

the facts upon which such statements are based, much as the court

did, that decided that a given windstorm was not a cyclone, where the

conclusion was based wholly upon the evidence showing that the clouds

lacked the funnel shape and circling motion, while the effect of the

storm, evidenced by the twisted trunks of giant trees, the houses awry

and other primary evidence of the fact asserted, was wholly over-looked,

in reaching the conclusion.[3]

There is evidence that wills were used in Egypt centuries before they

were known in Europe;[4] Solon is said to have introduced them into

Greece,[5] and wills were used in Rome, long before the date of the

Twelve Tables.[6]

Abraham, in his lament of the want of a legitimate heir, appointed the

steward and servant born in his house to take his estate, after his death

and this was, virtually, the appointment of an heir by will.[7] And the

Hebrew Patriarch, Jacob, before taking his departure from his sons, with

the knowledge of approaching death, said unto Joseph:[8]

“Behold, I die; but God shall be with you and bring you again

unto the land of your fathers. Moreover, I have given to thee,

one portion above thy brethren, which I took out of the land

of the Amorite with my sword and with my bow. And Jacob called

unto his sons and said, gather yourselves together, that I may

tell you that which shall befall you in the last days.”

Of course this is but an oral bequest, but it has all the elements of

a death-bed disposition, made under the apprehension of approaching

death and it sets forth the “portion” to Joseph, after mentioning the

derivation of the testator’s title, and the symbolic emblems to the other

sons are distributed, with all the solemnity of a will, in fact.

From these illustrations, it will be seen, that from the beginning of

the history of man, as we know him, or at least in the patriarchial

days of the ancient Hebrews, the custom obtained of making testamentary

dispositions of property, and there is also evidence extant that this

custom was not confined alone to the ancient Israelites.

An Egyptian will, dating back to patriarchial times, was recently

unearthed at Kahun, by the English Egyptologist, William Petrie.[9] By

this document, written 2548 B. C. one Sekrehen, a citizen of the time of

Amenemhat IV., settles upon his wife, Teta, all the property given him

by his brother, for life, with a condition against the commission of

waste, and one Siou, a lieutenant, is appointed guardian for the infant

children. Two scribes attest the execution of this will in solemn form

and thus we have the indisputable evidence, by this document executed

forty-six hundred years ago, that the statement of modern historians that

wills are of Roman origin and were invented by the clergy of mediaeval

times,[10] is in error.

The written will of the Assyrian monarch, Sennacherib, assassinated in

the year 681, B. C., is preserved in the royal library of Kenyunjik[11]

and in the form customarily used in that period, he bequeathed to his

son, Esarhadden, his bracelets, coronets and other gifts of gold, ivory

and precious stones, deposited, for safekeeping, “in the temple of Nebo.”

The will of the philosopher, Plato, 348 B. C., who left “no debts,” but

devised his farms, with a provision against alienation,[12] to his son,

Adimantes, together with his vase, gold, cash, slaves, “also all my

chattels, as specified in an inventory, held and possessed by Demetrius,”

is a model of brevity and concise legal form, such as the experienced

lawyer of today would have prepared for his client.

The will of the great Aristotle, who, at sixty-eight entered upon his

final long sleep of death, in the year 322 B. C., after appointing

Antipater his executor, with other named friends to assist him in

the management and care of his estate, proceeds to dispose of his

acquisitions, in a most reasonable business-like manner, from the

provision for his daughter, in case of her marriage, including the

disposition of his various slaves, the finishing of his statues and the

depositing of the bones of his wife, Pythias, in his tomb, “even as she

desired,” to the final arrangements for the offering of the four stone

animals, for the preservation of Nicanor, to Jupiter and Minerva, is just

such a sane, sensible testamentary provision as one would expect from

such an astute philosopher.[13]

Virgil died ten years before Christ and his will left his manuscript of

the Aeneid to his friends and executors, Tucca and Varus, and divided his

property between his half-brother, Proculus and Valerius, after leaving a

fourth to Augustus, a twelfth to Macaenas and the rest to Varus.[14]

But we cannot devote more space in this chapter to the wills of the most

gifted of men of this ancient period, however interesting it would be to

follow the testamentary devises of the statesmen, poets and philosophers

of the period before Christ, but to trace the origin and growth of

English wills, with a few illustrations of the quaint and curious, will

sufficiently lengthen the scope of the present subject-matter.

Forms of testamentary disposition of personalty obtained in Great Britain

at a very early period,[15] but until the Statute of Wills, in 1540,[16]

there was no right of disposition by will, in England, on the part of the

owner of real estate.[17]

The Anglo-Saxon will is not a product of the Roman will at all, but

is purely a creature of the manners and customs of the English people

themselves.[18] In the early Anglo-Saxon law wills were unknown, but

owed their origin to the privilege accorded the crowned heads and great

ones to make testamentary disposition and death-bed gifts of their

property.[19] In Cnut’s day it was not unusual for a man to make a post

obit gift of his land or goods, and after the Norman conquest this custom

continued and one could dispose of his land, after his death, by a

charter, effective upon his own death, or that of his wife,[20] but the

testamentary devise, as we know it, was not a common instrument in this

day.

After the middle of the thirteenth century the king’s court condemned

the post obit gift of land, by charter, but allowed it only in certain

boroughs where the custom obtained; primogeniture was held to destroy

the existing law of succession; the church asserted the right to execute

the last will and testament of every person and the horror of intestacy

increased, as the church assumed the right to administer the goods of the

deceased, for the good of his soul.[21]

We read, in the old books, that a great man, Eude, died in Normandy,

during the reign of Henry I., and made a certain division or devise of his

property, leaving his manor to the abbey he had built at Colchester,

with a hundred pounds and a gold ring, together with a cup and horse

and mule; but before the King would confirm the devise of the manor, he

compelled the surrender of the cup, horse and mule to the Crown.[22]

And the post obit gift to Walden Abbey attempted by William de

Mandeville, Earl of Essex, during the reign of Henry II. was also set

aside by Geoffrey Fitz Peter, one of Glanville’s successors as Chief

Justiciar,[23] under Henry II., and his successor.

Of course the church-men frequently procured confirmations from the

heirs of these post obit gifts of land to the church, by the threat of

a dying father and the disapprobation of the church, if the gift was

not confirmed, but in the law these gifts were not recognized, for, as

Glanville puts it, in this period it was an axiom of the law that “God

alone and not man can make an heir.”[24]

Glanville speaks of the probate of wills, as if that mode of

authenticating these documents had been long in use, when he wrote,

but just when this custom was crystalized into law, in England, it is

difficult to determine.[25] In the reign of Henry III. the ecclesiastical

courts assumed jurisdiction in the probate of wills and soon thereafter

attempted quite generally to enforce the execution of them in payment

of legacies, for since the reign of Henry I., the estate of one dying

intestate, was subject to division by those succeeding thereto, _pro

anima ejus_.[26] The church seemed best suited to make this division,

for the benefit of the intestate’s soul and this finally gave rise to

the grant of letters by the ordinary to the next of kin, from which

the custom of issuing letters of administration no doubt arose, in

after-times.[27]

The church continued to execute the powers concerning wills and the

estates of decedents—and this is no doubt the reason why Glanville and

Bracton do not treat at length of wills, further than to mention the

custom, in certain boroughs, of devising land by will[28]—until the

people complained of oppression by the bishops and ordinaries in the

exaction of fines for probating wills, when the statute of 31 Edward

III., was enacted, giving the justices of the king’s court jurisdiction

to enquire into such exactions and oppressions, either at the instance

of the king, or that of the injured person.[29]

Having thus assumed the jurisdiction over the estates of deceased

persons, by this statute, which was the entering wedge to oust the

jurisdiction of the ecclesiastical courts, in the gradual processes of

time, the courts learned in the law, instead of those concerned only

about spiritual affairs, assumed larger control and jurisdiction over the

estates of decedents. While the church retained control over the estates

of decedents, the bishop exercised practically the same authority that

the probate judge exercises under our law, in the granting of letters

of administration, the listing and inventorying of the property and

the accounting by the trustee to the ordinary, granting the letters of

administration.[30]

From the delegation of the trust to some personal friend to carry out

the will of the decedent, the clergy, in compelling fidelity in the

performance of the trust, no doubt developed that particular kind of a

trustee known to our law of today as an executor or administrator and

with the appearance of this legal personality, the devise may be said to

first legally assume the dignity analogous to our present testamentary

devise.[31]

One of the earliest wills, with executors, that the older books refer

to, is that of King Henry II.,[32] made at Waltham, in the year 1182 in

the presence of ten witnesses, among whom we note the name of Ranulf

Glanville, his justiciar, the author of the first English law book. The

English bishops and Glanville were to make division among the religious

houses of five thousand marks; Norman bishops were to make division

of certain sums among Norman elemosinary institutions; his sons were

charged with the distribution of a fund to be expended in providing

marriages for poor free women; God’s curse was invoked upon all those

who violate his laws and the Pope was said to have confirmed the devise,

no doubt because all the legacies were for pious purposes. The will,

however, had executors,[33] for one set of the trustees looked after

the English behests; another set after the Norman legacies; others,

still, those left to institutions in Maine and Anjou, and all of these

several executors, save only Glanville, were from among the clergy, and

this evidences the high regard in which this monarch held his learned

justiciar.

But few of the thirteenth century wills have come down to us, although

we have an ampler supply in the fourteenth century. In the thirteenth

century, the will was usually made in Latin and wills written in the

English language first began to appear generally in the second half of

the fourteen century.[34]

In the year 1268, or the 53 year of Henry III., William de Beauchamp

executed a will[35] that looks very like the modern documents, except

that it only provided for specific legacies and behests of personalty

other than to the church. It provided that his horse, fully harnessed,

with all military caparisons, should precede the hearse bearing his

corpse; provided for masses for his soul; gave a house to the church for

his own soul and that of his wife; a behest to his son, Walter, to defray

his expenses in a pilgrimage to the holy-land; to his daughter, Joane,

a canopy and a book of Lancelot; a silver cup to his daughter Isabel,

rings for his friends, with small legacies to others and a house for the

church, are the principal features of this ancient will. The testator

finally closed this interesting old will, in the following form:

“And I appoint my eldest son, William, Earl of Warwick, Sir

Roger Mortimer, Sir Bartholomew de Sudley, and the Abbots of

Evesham and of Great Malverne, my executors.”

So here we have, in modern form, the recognition of the custom to appoint

executors, by testamentary devise, just as today.

Primogeniture, under the feudal law of the middle ages, in England,

created the necessity for wills of real estate, for although all children

of the Germanic races took equally and this was true, at Rome, under

the feudal law all the children were practically disinherited in favor

of the eldest son; some method of devising the estate to the eldest son

was essential, on the part of the testator of real estate, so the Clergy

adopted the Roman will as the instrument for accomplishing the purpose

and thus it is sometimes called “an accidental fruit of feudalism.”[36]

The liberty taken by the Church with the estates of deceased persons was

a matter of such scandal and oppression, during the reigns of Henry III.

and Edward II., that Parliament on several occasions imposed rules for

the government of the bishops in the administration of the estates of

intestates. Executors were required, during the reign of Henry III., to

make a true inventory of the property of the deceased, and exhibit it to

credible persons, acquainted with the property of the deceased,[37] and

this is no doubt, the foundation for this provision of our modern law,

requiring inventories, in such cases.

During the reign of Edward IV. the _testamentum_ and _ultima voluntas_

came to be regarded in much the same legal aspect, although the former

was the more solemn act and the execution of the testament was always in

accordance with the forms prescribed in the older law books and if these

preliminaries were omitted it was but a mere _ultima voluntas_.[38]

In the reign of Edward VI. the reformers of that period objected to the

promiscuous use of wills by all classes, so an act was passed preventing

the execution of wills by wives, _servi_, by minors under fourteen, by

heretics, criminals, condemned to death, exile, or chains; those who did

not dismiss their concubines before they were in extremis, people with

two wives or husbands, libelers, prostitutes or procuresses and usurers.

The indulgence was granted to those keeping concubines, however, and to

those with two wives or husbands—perhaps because of the leniency with

which such crimes were looked upon at this period—of disposing of their

goods _in pias causas_, or for the relief of the poor, afflicted, for

young women, the support of students and the reparation of highways.[39]

Under the old law, the division of the decedent’s property, whether by

will or otherwise, was one-third to his wife, a third to his children

and the other third, the owner himself could dispose of. If no will was

left, the wife and children took their one-third each and the rest was

divided by the administrator. If no children survived, the widow took

half and the owner could dispose of the other half, or, if the owner died

intestate, the administrator disposed of the remaining half and the same

was true, if there were no children, but a widow survived.[40]

The modern statutes of descents and distributions, in the United States,

are no doubt founded upon the customs, which had taken the fixed form of

law, at this early period of English history.

In the written English wills that have come down to us, from the middle

ages, we find the dispositions of property governed, largely, by the

customs and laws of the period when the will was written and the forms

and dispositions of property devised by these instruments is as varied as

the imaginations and whims of the testators.

The will of Guy de Beauchamp, Earl of Warwick, dated at Warwick Castle,

Monday, next after the feast of St. James, the Apostle, 1315, provided

for the interment of his body in the Abbey of Bordsley, without funeral

pomp. To Alice, his wife, he left a portion of his plate, a crystal cup

and half his bedding, with all the books in his chapel; to his daughters,

he left the other half of his bedding, rings and jewels; to his son,

Thomas, he left his best coat of mail, helmet and suit of harness, and to

his son, John, he left his second best coat of mail, helmet and harness,

and the remainder of his armour, bows, and other warlike implements were

to remain in Warwick castle, for his heir.[41]

Noticeable among the wills of the fourteenth century is the specific

provision for the place and manner of the interment of the body of the

deceased. The testators of this period of the world’s history, prompted

by their superstition, wrote their wills as if they thought that the

angel of the Lord, on the resurrection day, would scan their wills, to

find the place of their interment. They talked “of graves, of worms, and

epitaphs,” just as the Great Bard makes the weak King Richard speak, who

had naught to bequeath, save his deposed body “to the ground.”[42]

We find that old John of Gaunt, Duke of Lancaster, in 1399, directs, in

his will,[43]

“If I die out of London, I desire that the night my body

arrives there it be carried direct to the Friars Carmelites, in

Fleet Street, and the next day be taken straight to St. Paul’s,

and that it be not buried for forty days, during which I charge

my executors that there be no embalming of my corpse.”

Sir Walter Manney, on St. Andrew’s day, in 1371, in London, provided for

his interment, “at God’s pleasure,” in the midst of the Quire of the

Carthusians, near Smithfield, in the suburbs of London, without any great

pomp. He directed twenty masses be said for his soul and that every poor

person attending his funeral, be given a penny to say a prayer for his

soul and the remission of his sins. He left ten pounds to his sister, the

nun, Mary; left a provision for each of his two bastard daughters and to

his dear wife, the plate which he bought of Robert Francis, also a girdle

of gold, a garter of gold and all of his beds and girdles, except his

folding bed, which he left to his daughter of Pembroke. He willed that a

tomb of alabaster with his own image thereon, as a knight and his arms

thereon should be constructed, like unto that of Sir John Beauchamp, at

Paul’s London, and that prayers should be said for his soul and also for

that of Alice de Henalt, the Countess Marshal and Sir Guy Bryan, Knt.,

was appointed executor of his will.[44]

Queen Katherine of Aragon, wife of Henry VIII., who died in 1536, after

providing for the burial of her body in the Convent of Observant Friars,

supplicated the King in her last will,[45] to return the property that

she had brought to him from Spain, out of which she stipulated for

the payment of the annual wages due her physician, her druggist, her

laundress, goldsmith and tailor; she left the collar of gold she had

brought from Spain to her daughter and provided for masses for her soul

and legacies to different priests and lady friends.

Harris, in his recent book on “Ancient, Curious and Famous Wills,”[46]

reproduces, verbatim, many curious and strange testaments, evidencing the

weaknesses, humors, whims and caprices, and sometimes, even the vengeance

of the various testators, whose wills he has collected.

William Pym, for instance, a gentleman of Somerset, England, who crept

to his long sleep of death on January 10’, 1608, after providing for

different charitable behests, thus speaks of his wife, in his will:[47]

“I give to Agnes, which I did a long time take for my wyfe—till

she denyd me to be her husband, all though wee were marryd

with my friends’ consent, her father, mother, and uncle at

it; and now she sweareth she will neither love mee nor evyr

bee perswaded to, by preechers, nor by any other, which hath

happened within these few years. And Toby Andrewes, the

beginner, which I did see with mine own eyes when he did more

than was fitting and this, by means of others, their abettors.

I have lived a miserable life this six or seven years, and now

I leve the revenge to God—and ten pounds to buy her a gret

horse, for I could not, this menny years, please her, with one

gret enough.”

Dispositions of property for the use and benefit of horses and other

domestic animals are not uncommon, in the list of quaint and curious

wills to be met with by the student of ancient testaments.

Harris cites the curious will of a childless peasant, who died near

Toulouse, in 1781, by the terms of which he left his house and land and

other property to his riding horse, in these words:

“I declare that I appoint my russet cob my universal heir, and

I desire that he may belong to my nephew, George.”

Upon the will being brought before the court for construction, it was

held that the intent of the testator would be given effect and the horse

and the bequests he had bestowed upon it, would go to the nephew named in

the will.[48]

Madame Dupuis, who died in 1677,[49] left a legacy of a fixed amount to

her executor, with a detailed menu for her cats, which her sister and

niece were to visit three times a week to see that at least thirty sous a

week were expended for their living and care.

As an illustration of the generosity and magnanimity of certain Jews,

the will of the wealthy Israelite, Pinedo, who died at Amsterdam, in the

eighteenth century, is not without interest. He left to the city of

his adoption, five tons of gold; to every Christian church in Amsterdam

and at the Hague, the sum of 10,000 florins each; to each Christian

orphanage in these two towns, 10,000 crowns; to the poor of Amsterdam,

forty shiploads of peat; to his synagogue two and a half tons of gold; he

lent to the government, at three per cent, ten tons of gold, on condition

that the interest should be paid to the Jews domiciled at Jerusalem; he

then left certain legacies to his wife and nephew and other members of

his family and to every unmarried person of either sex, attending his

funeral, 100 florins; to every Christian priest at Amsterdam and the

Hague, 100 crowns and to every sacristan, fifty crowns.[50]

Space will not permit the long list of charitable and philanthropic

devises that could be collated from ancient and mediaeval times, which

many of the testators of today would do well to emulate.

John Wardell, of London, by his will dated August 29’, 1656, devised

his tenement, called the “White Bear,” in trust, to light the travelers

passing to and fro along the watersides.[51]

Charles Jones, of Lincoln’s Inn, by will dated January 17’, 1640,

established a charitable trust for the maintenance of a house to be used

as a hospital, near Pullhelly, for twelve poor men.[52]

George Butler, of Coleshill, Warwickshire, by his testament dated

September 2’, 1591, gave his house in trust for the lodgment of “any

poor travelers” who should desire lodgment, not to exceed one night.[53]

And Valentine Goodman, of Hallaton, England, by his will in 1684,

left eight hundred pounds to be invested and the interest spent for

the benefit of the “most indigent, poorest, aged, decrepit, miserable

paupers.”[54]

Among the freakish wills collected by Harris, may be mentioned that of

the nobleman of the house Du Chatelet, who died in 1280,[55] and directed

that one of the pillars of the church at Neufchateau should be hollowed

out and his body stood upright therein, so that the vulgar might not walk

upon his corpse.

The strange request of the great English jurist, Jeremy Bentham,[56] that

his corpse might be embalmed and placed in his favorite chair at the

banquet table of his friends, on all occasions of state, was carefully

carried out by his friend, Dr. Southwood Smith. By some scientific

process the body of the philosopher and law writer was preserved, by a

French artist and in his usual suit of clothes, with his broad-brimmed

sombrero and his favorite walking-stick, in his old armed-chair, the

lifeless body of this gifted man graced the meetings of his friends,

until it was removed by Dr. Smith to University College.

The will of the great Bard of Avon, has been discussed so frequently

that its terms are known to many, but as the last writing of the Poet,

like everything connected with his life, it is always of interest to

posterity.

The first paragraph of his will, along with the many other prayers and

Bible references which he places in the mouths of his characters in the

plays,[57] evidences the Poet’s firm belief in Jesus Christ and the “life

everlasting.”

In the entailment of his real estate to the bodily heirs male of his

daughters, this will evidences the most careful legal preparation and

the conclusion is not unreasonable that the same discrimination which

characterizes this disposition of his real estate and other property,

recognized the futility of any attempted disposal of his literary

productions, which lacked the attribute of property, in law, in England,

until 1709.[58]

His legacies to his sister and his nieces and nephews is characteristic

of his deep affection for his own family; his benevolence is established

by his bequests to the “poor of Stratford”; his good-fellowship and love

for his friends by the many legacies for rings for his different friends;

his indifference toward his wife, by the fact that he only left her his

“second best bed, with the furniture,” while all his landed acquisitions,

with his gold and silver plate and other property were distributed among

his sisters, daughters, nieces and nephews and his trust and confidence

in his daughter, Susanna Hall, and her husband, John Hall, is finally

established by the fact that he made them his executors and trustees.[59]

The wills of the statesmen and patriots of the past century, in our own

country are equally interesting with those of our brothers of yesterday

across the sea.

After leaving his land in Nova Scotia, with his books and the debts owing

to him by his son, William Franklin, former Governor of the Jerseys, the

great statesman, philosopher and patriot, Benjamin Franklin, referred

to his son’s part in attempting to deprive him of his property, during

the war, as an excuse for not leaving him more of his estate. He left

his dwelling house and three new houses, printing office, silver plate

and household goods, to his daughter, Sarah Bache, and her husband, in

entirety with remainder to their heirs, “as tenants in common and not

as joint tenants.”[60] The picture of the king of France, set with four

hundred and eight diamonds, he left to his daughter, with the admonition

not to use the diamonds to make ornaments for herself, so as not to

thereby “introduce the expensive, vain and useless pastime of wearing

jewels in this country.” He desired his philosophical instruments in

Philadelphia, to go to his ingenious friend, Francis Hopkinson, and by

a codicil, he left his “fine crab-tree walking-stick” to his friend and

“the friend of mankind, General Washington. If it were a sceptre, he

has merited it and would become it. It was a present to me from that

excellent woman, Madame de Forbach, the Dowager Duchess of Deux Ponts,

connected with some verses, which go with it.” He left a bond to his

son-in-law, on the condition that he manumit and set free his negro man.

This great patriot and friend of mankind, like General Washington, in his

last testament, therefore, registered his opposition to human slavery,

an institution that was to be finally abolished a half century later in

the United States, through the efforts of the great “Emancipator.”

The will of the great Chief Justice John Marshall, is declared by him

to be “entirely in my own handwriting”; he left his estate equally to

his only daughter and his five sons and accompanying the will is a

splendid eulogy to his deceased wife, whom he characterized as the “most

affectionate of mothers.”[61]

The will of Captain Miles Standish, Longfellow’s hero, was made March

7’, 1656. He desired his just debts to “bee paied”; that his body

should be “buried in Decent manor ... as near as conveniently may bee

to my two daughters, Lora Standish, my daughter, and Mary Standish, my

daughter-in-law.” His dear and loving wife, Barbara Standish, was left

a third of his estate; forty pounds were left to each of four sons and

to his son Josias, upon his marriage, he left “one young horse, five

sheep and two heifers,” with his forty pound legacy, if his estate “will

bear it att p’sent.” His friends, Mr. Timothy Hatherly and Capt. James

Cudworth, were appointed “supervisors” of his will, for he knew that they

would “be pleased to Doe the office of Christian love to bee healpfull to

my poor wife and Children by their Christian Counsell and advice.”[62]

The “Father of our Country,” General George Washington, left the bulk

of his estate to his wife, Martha Washington, for life,[63] with the

“liquors and groceries” on hand at his death, to dispose of as she saw

fit. Upon her death he willed that all slaves owned by him, in his own

right, should have their freedom and that the old and infirm and sick

ones should be protected and maintained by his heirs so long as they

lived and the younger ones educated and maintained the same as other poor

children.

He left the fifty shares in the Potomac Company, given him for his

services in the Revolutionary War, to endow a University within the

limits of the District of Columbia; some of his lands were distributed

among the sons of his deceased brothers; his military and state papers

were left to his nephew, Bushrod Washington; he recommitted the “box

of oak that sheltered the great Sir William Wallace,” to the Earl of

Beuban; to his brother, Charles, he left the gold headed cane left him by

Dr. Franklin and among the “mementos of esteem and regard,” to his many

friends, are a pair of pistols to General De La Fayette. He desired that

in case of any dispute over his will that the disputants select each an

arbitrator, the two thus selected to agree upon a third and the finding

of any two as to his intentions, he desired to be “as binding upon the

parties as if it had been given in the Supreme Court of the United

States.”

Like Washington, and many other of the patriots of the past century,

William Penn prepared his own will, in 1718, so as to cause no little

concern to his friend, James Logan, as to the different constructions

that could be placed upon it.

The Government of the Province of “Pennsylvania and territories thereto

belonging,” he devised in trust to the Earls of Oxford, Mortimer and

Powelett, “and their heirs, upon trust, to dispose thereof to the Queen”

or to any other person to the best advantage to carry out the object of

the devise.

He further devised to his wife, Hannah Penn; to her father, Thomas

Callowhill; to his sister, Margaret Lowther; to his friends “Gilbert

Heathcote Physitian, Samuel Waldenfield, John Field, Henry Gouldney,

all living in England” and to his friends, Samuel Carpenter, Richard

Hill, Isaac Norris, Samuel Preston and James Logan, “liveing in or near

Pensilvania and their heires” all his lands, tenements and hereditaments,

with “other profitts scituate, lyeing and being in Pensilvania and the

territores thereunto belonging,” in trust, first for the payment of his

debts, second, to convey 10,000 acres each to the three children of his

son, William, a like quantity to his daughter, Aubrey, and the rest to

be divided among the children of his present wife, “in such proporcon

and for such estates as my said wife shall think fit.” His wife was made

executrix and all his personal estate was left to her.

Penn was a man of far more than the ordinary ability and wisdom in the

customary affairs of life, but as his friend, James Logan, foresaw, from

the contents of this will, which left such a large and varied estate

to so many people to convey, with so little instructions regarding his

intentions, it is not strange that litigation covering a period of nine

years should have resulted from such a testament.[64]

The searcher for the curious in testaments, will find wills in poetry as

well as in prose, collated in Harris’ Ancient Wills.

William Jackett, of the parish of St. Mary, Islington, died in 1789 and

his will in the following form was admitted to probate:

“I give and bequeath,

When I’m laid underneath,

To my two loving sisters most dear,

The whole of my store,

Were it twice as much more,

Which God’s goodness has given me here.

And that none may prevent

This my will and intent,

Or occasion the least of law-racket,

With a solemn appeal

I confirm, sign and seal

This, the true act and deed of Will Jackett.”[65]

William Hicklington, who dubbed himself, the Poet of Pocklington, penned

his will in rhyme, in 1770, as follows:

“Do give and bequeath,

As free as I breathe,

To thee, Mary Jarum,

The Queen of my Harum,

My cash and my cattle,

With every chattel,

To have and to hold,

Come heat or come cold,

_Sans_ hindrance or strife,

Though thou art not my wife,

As witness my hand,

Just here as I stand,

The twelfth of July,

In the year seventy.”[66]

Apropos this will, is the rhymed testament of the sacriligious Irishman,

who, as the old books record, in this quatrain disposed of his earthly

effects:

“In the name of God, Amen:

My featherbed to my wife Jen;

Also my carpenter’s saw and hammer;

Until she marries; then, God damn her.”[67]

This, however, suggests the “Will in literature,” and in turning over

the pages of the work above referred to, the “Lesser Testament,” of

the plaintive poet, Francois Villon, who died in 1484, is not without

interest.

His gloves and silken hood are bequeathed to a friend in the following

verse;

“Item, my gloves and silken hood

My friend Jacques Cardon, I declare,

Shall have in fair free gift for good;

Also the acorns willows bear

And every day a capon fair

Or goose; likewise a tenfold vat

Of chalk-white wine, besides a pair

Of Lawsuits, lest he wax too fat.”

He desired his friends to record of him in his epitaph:

“Acre or furrow had he none.

’Tis known his all he gave away;

Bread, tables, tressels, all are gone,

Gallants, of him this Roundel say.”[68]

Among the wills in fiction and poetry, collated by Mr. Harris, in his

recent work,[69] are those of Olivia, in Twelfth Night; that of Don

Quixote; the wills of Dickens, George Eliot, Dumas and other English

writers. But it is not the object of this chapter to deal with wills in

fiction, since testaments are founded in certainties, as real as life

and death themselves. We have always made our wills in pursuance of a

natural inclination, associated with the idea of property and intimately

connected with the ties that bind us here on earth. As Hazlitt said, a

century ago:

“We consign our possessions to our next of kin, as mechanically

as we lean our heads on the pillow and go out of the world in

the same state of stupid amazement that we came into it.”

And as certain as we are to die, so certainly do we owe it to ourselves

and to those who are the objects of our bounty, to provide for the proper

disposition of our acquisitions, even as the men and women of antiquity

did, before they pressed the pillow for the last time.

The hands that wrote the wills referred to in the foregoing pages have

been stilled with the silence of the centuries, e’en as the fingers

that wove the figures in your antique rug; the voice that expressed the

dying intent of the testator, like the nightingale that sang among the

trees—ah, “whither hath it gone again, who knows” can be heard again

no more. Like scattered threads from the warp and woof of the lives

from which these skeins are taken, each age-scented document marks the

close of a human life and the fact that other lives have fallen, like

the leaves from trees, but emphasizes the pathos of our lives, since

humanity, as one man, with a universal agony still strives and strains

“to gain the goal where agonies shall cease to be.” Streams have been

wept into the vast ocean of time since the first will and testament was

made by dying man.

“A myriad races came and went; this Sphinx hath seen them come

and go.”

True, a human life, is but “a drop in ocean’s boundless tide,” but as

truly said by Burton:[70]

“Our deaths are twain; the Deaths we see

Drop like the leaves in windy Fall;

But ours, our own, are ruined worlds, a globe

Collapst, last end of all.

We live our lives with rogues and fools,

Dead and alive, alive and dead,

We die ’twixt one who feels the pulse and

One who frets and clouds the head.

Hardly we learn to wield the blade, before

The wrist grows stiff and old;

Hardly we learn to ply the pen, ere Thought

And Fancy faint with cold.

And still the weaver plies his loom, whose

Warp and woof is wretched Man

Weaving th’ unpattern’d dark design, so dark

We doubt it owns a plan.

But ah, what vaileth man to mourn; shall

Tears bring forth what smiles ne’er brought;

Shall brooding breed a thought of joy? Ah

Hush the sigh, forget the thought.

Silence thine immemorial quest, contain

Thy nature’s vain complaint

None heeds, none cares for thee or thine;

Like thee how many came and went.

...

Wend now thy way, with brow serene, fear

Not thy humble tale to tell:—”

’Tis wisdom’s part to make thy will;

The testament is not death’s knell.

FOOTNOTES:

[1] 1 Redfield, on Wills, Ch. II., p. 4; 2 Bl. Comm. 499.

[2] Redfield, on Wills, Ch. I., p. 1; Harris, Ancient Wills. Introd. XII.

[3] Judge John F. Philips advised the writer that an opinion was prepared

by a member of the federal court and submitted to him for his concurrence

when he was on the bench, in a case similar to that referred to in the

text, but it was changed when the attention of the writer was called

to the existing facts, which the opinion failed to note. It is to be

regretted that historians and law writers cannot so amend their works.

[4] Harris, Ancient Wills, p. 12.

[5] Plutarch’s Life of Solon; IV. Kent’s Comm. 503.

[6] Chitty’s note, to 2 B. Comm. 491.

The reason for recognizing, in law, a right of disposition of property

by will, is the same as the law governing the descent and distribution,

in case of intestacy. If there were no such provision, on the vacancy of

the property, on the death of the last owner, an unseemly scramble would

result, which would be both undesirable and contrary to a sound public

policy. “Title,” or authority to make a will, is thus based upon the

social instinct and both wills and intestacy statutes are in furtherance

of this purpose. The owner, in case of a testamentary devise and the

State, in case of intestacy, as a mediary, accomplish practically the

same purpose, in the division of property, the prevention of a vacancy

and the failure of the social instinct, which furnishes the foundation

for society and order. (See interesting Essay by Professor Bigelow, in

III. Essays in Anglo-American Legal History, pp. 776, 778.)

[7] Genesis, Ch. XV.

[8] Genesis, 48 and 49 Chapters.

[9] Harris, Ancient Wills, p. 12.

[10] I. Reeve’s History English Law, 313; II. Pollock and Maitland’s

History English Law, p. 314.

[11] Harris, Ancient Wills, p. 13.

[12] Harris, Ancient Wills, p. 14.

[13] Harris, Ancient Wills, pp. 15, 16.

[14] Harris, Ancient Wills, p. 16.

[15] 2 Bl. Comm. 491.

[16] 32 & 34 Henry VIII.

[17] I. Redfield, on Wills, sec. 4, p. 2; II. Pollock and Maitland’s

History English Law, p. 315; IV. Reeve’s History English Law, 510, 511.

[18] II. Pollock and Maitland’s History English Law, pp. 316, 317.

[19] II. Pollock and Maitland’s History English Law, p. 322.

[20] _Ante idem._, p. 323.

[21] II. Pollock and Maitland’s History English Law, pp. 325, 326.

The statute of wills ordained that all persons having manors, lands,

tenements or hereditaments could give and dispose of them, as well by

last will, or testament in writing, as by any act executed in their

lifetime. (IV. Reeve’s History English Law, p. 374.)

[22] II. Pollock and Maitland’s History English Law, p. 326.

[23] II. Pollock and Maitland’s History English Law, p. 327.

[24] _Ante idem._; Beame’s Glanville, p. 118.

[25] I. Reeve’s History English Law, p. 313.

[26] I. Reeve’s History English Law, p. 313.

[27] I. Reeve’s History English Law, p. 314.

[28] III. Reeve’s History English Law, 215.

[29] III. Reeve’s History English Law, 125.

[30] IV. Reeve’s History English Law, 123, 124.

[31] II. Pollock and Maitland’s History English Law, p. 335.

[32] Nicholas’ “Testamenta Vetusta.”

[33] II. Pollock and Maitland’s History English Law, pp. 334, 335.

[34] II. Pollock and Maitland’s History English Law, p. 337.

[35] Harris, Ancient Wills, p. 22.

[36] Maine, Ancient Law, ch. 7, p. 217; III. Essays in Anglo-American

Legal History, pp. 780, 781.

[37] IV. Reeve’s History English Law, p. 115.

[38] IV. Reeve’s History English Law, 117.

[39] V. Reeve’s History English Law, pp. 81, 82.

[40] V. Reeve’s History English Law, p. 82.

[41] Harris, Ancient Wills, p. 25.

[42] King Richard II., Act II., Scene I.

[43] Harris, Ancient Wills, p. 25.

[44] Harris, Ancient Wills, p. 29.

[45] Harris, Ancient Wills, p. 39.

[46] Published by Little, Brown & Co., 1911.

[47] Harris, Ancient Wills, p. 87.

[48] Harris, Ancient Wills, p. 94.

[49] _Ante idem._, 101.

[50] Schutt’s Memorabilia Judaica, lib. iv, cap. 18.

[51] Harris, Ancient Wills, p. 105.

[52] _Ante idem._, p. 105.

[53] _Ante idem._, p. 107.

[54] _Ante idem._, p. 111.

[55] _Ante idem._ p. 123.

[56] _Ante idem._ p. 139.

[57] For collection of the many beautiful prayers in the plays, see the

interesting book by Mary A. Wadsworth, “Shakespeare and Prayer,” by The

Welch Publishing Co., Chicago.

[58] White’s “Law in Shakespeare,” p. 5.

[59] Harris, Ancient Wills, pp. 305, 309.

[60] Harris, Ancient Wills, p. 369.

[61] Harris, Ancient Wills, p. 407.

[62] Harris, Ancient Wills, p. 427.

[63] Harris, Ancient Wills, p. 439.

[64] Dixon’s “Life of Penn”; Stoughton’s “William Penn”; Harris, Ancient

Wills, p. 291.

The will of Penn, and other of the earlier patriots of the United

States who drew their own wills, in such manner as to cause protracted

litigation, suggests the old poem, tuned to the toast of a century ago,

“The lawyer’s best friend—the man who makes his own will,” inscribed to

“The jolly testator who makes his own will.”

“He premises his wish and his purpose to save

All dispute among friends when he’s laid in his grave;

Then he straightway proceeds more disputes to create

Than a long summer’s day would give time to relate.

He writes and erases, he blunders and blots,

He produces such puzzles and Gordian knots,

That a lawyer, intending to frame the thing ill,

Couldn’t match the testator who makes his own will.

...

You had better pay toll when you take to the road,

Than attempt by a by-way to reach your abode;

You had better employ a conveyancer’s hand,

Than encounter the risk that your will shouldn’t stand.

From the broad beaten track, when the traveler strays,

He may land in a bog, or be lost in a maze;

And the law, when defied, will avenge itself still,

On the man and the woman who make their own will.”

For reproduction of this quaint poem in full, see, Harris, Ancient Wills,

p. 209.

[65] Harris, Ancient Wills, p. 67.

[66] Harris, Ancient Wills, p. 67.

[67] _Ante idem._ 68.

[68] Harris, Ancient Wills, p. 64.

[69] Harris, Ancient Wills, pp. 49, 62.

This bequest of Francois Villon, may have suggested to Mr. Williston

Fish of Chicago, the “Insane Man’s Will,” published in Harper’s Weekly,

in 1898, wherein he makes an imaginary will that has become a classic

in English literature, among the bequests being “all good little words

of praise and encouragement,” to good fathers and mothers, in trust for

their children; to children, subject to the rights of lovers, he devises,

the flowers, the banks of brooks, the blossoms of the woods, the golden

sands and waters of the brooks, the white clouds floating high over the

giant trees and the Milky Way, to wonder at, at night; to lovers, he

devises the imaginary world, with the stars in the sky, the red roses

by the wall, the sweet strains of music and all else by which they

may figure to each other the lastingness and beauty of their love. To

those no longer children or lovers, he bequeaths the pleasures of sweet

memories, the poems of Burns and Shakespeare and other poets, and to

those with snowy crowns he leaves the happiness of old age, with the love

and gratitude of their children, until they fall asleep.

[70] “The Kasidah.”

INDEX.

_References are to Pages_

A

Abjuration, in case of sanctuary, 250.

Adonijah, sanctuary claimed by, 245, 246.

Adulteress, lost dower, in England, 26.

Agrippina, her marriage to Claudius, 18.

Alcibiades, recall of, 83.

Alexander III., decree concerning consent marriages, 22.

Alfred, administration of justice under, 89, 90.

Alfred, jury trials under, 151.

Alfred, sanctuary under, 251.

Alfred, wager of law, under, 197.

Amber witch, 71.

Ancient punishments (see punishment), 273, 306.

Anglo-Saxon courts, 90.

Anglo-Saxon law against witchcraft, 49.

Anglo-Saxon wills, 312.

Anglo-Saxons, judicial recall under, 88, 90.

Anglo-Saxons, recognized sale-marriages, 20.

Animals, wills to, 322.

Appellee, meaning of, in trial by battle, 115.

Approver, in trials for felony charges, 117.

Aristeides, recall of, 83.

Aristotle, on judicial recall, 82, 86.

Aristotle, will of, 310.

Arrowsmith, case of, Anthony, 183.

Arthur, king, and Flollo, trial by battle between, 127.

Ashford, trial by battle with Thornton, 133.

Assize, a substitute for battle, under Henry II., 119.

Assyrian marriages, 13.

Astrology in mediaeval times, 49.

Athelstan, laws of, governing ordeals, 149.

Athelstan, sanctuary, under, 252.

Athenian judges, recall of, 83.

Athens, recall in, 81.

Attainder, standing mute to avoid, 173.

Aunts and nephews, marriages between, 18.

Authorities upon witchcraft, 70.

B

Babylon, effect of recall in, 103, 104.

Babylon marriages, 13.

Babylon, trials in ancient, 79.

Babylon, wager of law, in ancient, 197.

Babylonian judges (note), 74.

Balance, ordeal by, 143.

Banishment, in ancient Greece, 82.

Banns, custom of, 21.

Banns, legal advantages of, 22.

Barabas, release of, by Pilate, 102.

Battle, trial by, 109, 140.

Battle, origin of trial by, 109.

Battle, traced to ancient periods, 109.

Battle, regulated by Burgundians, 501 A. D., 111.

Battle, regulated by Otho, in 983 A. D., 112.

Battle, adjudged legal method of trial by Ld. Ellenborough, 133.

Battle, intended to prevent perjury, when established, 112.

Battle, London exempted from, by charter, 119.

Battle by use of “Approvers”, 117.

Battle, under military form, 125, 126.

Battle, in case William of Eu, 126.

Battle, in finance, 118.

Battle, in trials on debt, 119.

Battle, under writ of right, in full, 120, 122.

Battle, trial before Henry III., 129.

Battle, trial before Henry VI., 131.

Battle, discouraged by Edward III., 118.

Battle, trial by, before Henry VII., 132.

Battle, under felony charge, 116.

Battle, superceded by assize, under Henry II., 119.

Battle, under charge of treason, 116.

Battle between Hereford and Norfolk, 130.

Battle, introduced into England by Normans, 114.

Battle, between King Arthur and Flollo, 127.

Battle for treason, under Priscot, C. J., in reign of Henry VI., 118.

Battle, effect of chivalry upon, 113.

Battle under writ of right, 116.

Battle, trial before Edward III., 129.

Battle between Essex and Montford, 128.

Battle, under Queen Elizabeth, 132.

Battle between men and women, in Germany, 127.

Battle, abolished by St. Louis, in France, in 1260, 134.

Battle, abolished by 59’ George III., 134.

Battle, used by Chaucer, 135.

Battle, Shakespeare’s references to, 136, 137.

Battle, reference of Scott, to, 137, 138.

Battle, referred to, by Thackeray, 139.

Beccaria, his views on punishment, 274.

Beheading, punishment by, 276.

Bekker’s work on witchcraft, 69.

Benefit of clergy, 233, 243.

Benefit of clergy, definition of, 224.

Benefit of clergy, Biblical foundation for, 228.

Benefit of clergy, condition contributing to, 225.

Benefit of clergy, none, in desertion, 234.

Benefit of clergy, did not extend to treason, 228.

Benefit of clergy, nuns entitled to, 228, 229.

Benefit of clergy, “clergyable” and “unclergyable crimes,” 233.

Benefit of clergy, burning in hand, in, 231.

Benefit of clergy, practice in reading, in, 230.

Benefit of clergy, in Bracton’s time, 229.

Benefit of clergy, case of Ben Jonson, 238, 239.

Benefit of clergy, under Henry II., 226.

Benefit of clergy, under Edward III., 229.

Benefit of clergy, under Edward IV., 230.

Benefit of clergy, under Henry VI., 231.

Benefit of clergy, under Henry VII., 231.

Benefit of clergy, under Henry VIII., 234, 235.

Benefit of clergy, abolished, in England, in 1825, 236.

Benefit of clergy, claimed in United States, 239, 241.

Benefit of clergy, abolished in U. S. in 1790, 236.

Bentham, Jeremy, will of, 324.

Berkeley, marriage of Lord Thomas, 28.

Betrothals, in Anglo-Saxon days, 36.

Betrothal-rings, 34.

Biblical theory of marriage, 14.

Bier, ordeal of, 143, 145.

Bilboes, punishment, by, 303.

Blinding, punishment, by, 295.

Boaz, his espousal of Ruth, 36.

Boiling in oil, punishment by, 285.

Bracton, does not refer to ordeals, 157.

Bracton, benefit of clergy, in time of, 229.

Bracton, description of law wager, by, 201, 202.

Bracton, standing mute, during time, of, 179.

Branding, punishment, by, 297.

Brank, punishment, by, 305.

Brazil, marriages of infants in, 29.

Burgundian code, on trial by battle, 111.

Burning in hand, in benefit of clergy, 231.

Burning, punishment by, 276.

Burnworth, case of, in 1726, 186.

Burr, Aaron, trial of, 100.

Burn’s idea of the devil, 69.

Burying alive, punishment by, 282.

C

Caesar, Augustus used the recall, 88.

Caesar’s reference to marriage-settlements among Gauls, 32.

Calverly, case of Walter, in 1605, 184.

Cambyses, recall of Sisamnes (note), 78.

Canute, ordeals under, 152.

Capture, marriage by, 13.

Cardunville, William’s case, 22.

Cathay, marriages in (note), 13.

Catholic marriage forms, 34.

Cato, loaning of wife by, 27.

Ceylon, polyandry in, 16.

Chancery, jurisdiction of, 90.

Charitable wills, 323.

Charlemagne, law of, against witchcraft, 50.

Charlemagne, edict, of, on trials by ordeal, 147, 148.

Charles le-Gros, accusation and trial of his wife, 159.

Chatelet, of Paris, punishments, at, 289, 292.

Child marriages, 29.

Child of concubine, property right of, 18.

Chinese marriage customs, 12.

Chivalry, influence of, on battle, 112, 113.

Church and witchcraft, in early times, 49.

Churchmen, trials of, by wager of law, 210.

Church’s influence on trials by ordeal, 168, 169.

Cimon, recall of, 83.

Circassians, capture-marriages among (note), 13.

Clarendon, assize of, 154.

Clarendon, assize of, and law wager, 209.

Claudius, law allowing marriage to niece, 18.

Cleisthenes, on judicial recall, 82.

Clergy, benefit of (see benefit of clergy), 223, 243.

Clergy, neck-verse used in, 229.

Clitherow, Margaret, case of, 180, 183.

Clovis’ marriage to Clotilde, 32.

Cnut, proceedings in “false judgment” under, 106.

Cnut, wills, under, 312.

Cnut’s law against witchcraft, 49.

Cnut’s law against certain sale-marriages, 20.

Code of Hammurabi, on recall of judges, 78.

_Coemptio in manum_, definition of, 16.

Coke, on Slade’s case of law wager, 213.

Coke, on wager of law, 200.

Colynbourgh, Alice, trial of, by law wager, in 1435, 211.

Combat, trial by (see Battle, trial by), 109.

Common pleas courts, in old England, 90.

Compurgators, character of, in wager or law, 198.

Compurgators, as witnesses, 158.

Compurgation by fire ordeal, 142, 143.

Concubinage, definition of, 18.

Concubine, property right of progeny of, 18.

_Concubinatus_, under Roman law, 18.

_Confarreatio_, definition of, 16.

_Confarreatio_, obsolete, by end of Roman Republic (note), 17.

Congress, abolished benefit of clergy, in 1790, 236.

Constantine, law of, against witchcraft, 48.

Constantine, sanctuary, under, 248.

Corey, Giles, trial for witchcraft, 66.

Corey, Giles, case of pressing to death, in 1692, 187, 189.

Corey, Martha’s trial for witchcraft, 65.

Corsned, ordeal, by, 143, 144.

County Court, of Anglo-Saxons, 90.

Courts, in ancient England, 90.

Crimes, unclergyable, 233.

Criminal cases, wager of law, in, during 14th century, 204.

Crucifixion, punishment by, 280.

Cross, ordeal by, 143, 144, 148.

Cumanus, cruelty of, in witch persecutions, 54.

_Curia regis_, in early England, 90.

Custom, of throwing rice, 34.

Custom, of throwing shoes, 34.

Custom, of throwing stockings, 34.

Custom, of throwing bouquets, 34.

Customs, of marriage, 12, 44.

D

David and Goliath, trial by, 109.

David’s Psalms, authorizing benefit of clergy, 228.

Debt, wager of law, in (note), 207.

Debt, battle in trials for, 119.

Definition of benefit of clergy, 224.

Definition of _Confarreatio_, 16.

Definition of trial by ordeal, 141.

Definition of wager of law, 196.

Descent from concubine, 18.

Detinue, wager of law, in (note), 207.

Dinah’s proposed marriage to Shechem, 14.

Diocletian, prohibition of polygamy by, 16.

Divorcement, under Hammurabi, 31.

_Donatio propter nuptias_, of Roman law, 31.

Dower, at church door, 32.

Dower, under Anglo-Saxons, 32.

Dower, under reign of Edward I., 26.

Dower, Shakespeare’s reference to law of (note), 33.

Dowry, under Hammurabi’s code, 31.

Dowry, origin of, 31.

Drawing and quartering, punishment by, 283.

Drowning, punishment by, 277.

Ducking, punishment by, 303.

Durant, John, case of, in 1734, 187.

“Dusty-foot courts”, 90.

E

Ears, cutting off, punishment, by, 296.

“Earthenware-scourge”, recall known as, in Athens, 83.

Edda, Elder, song of, 165.

Edward, the Confessor, sanctuary, under, 254.

Edward, the Confessor, ordeals, under, 152.

Edward, the Confessor, accusation against his mother, 159, 160.

Edward, the Elder, ordeals, under, 152.

Edward I., his marriage to Marguerite, in 1299, 32.

Edward I., sanctuary, under, 256.

Edward I., timidity of judges, under, 93.

Edward I., standing mute, under, 175.

Edward I., statute on dower, 26.

Edward II., punishment by drowning, under, 278.

Edward III., benefit of clergy, under, 229.

Edward III., _peine forte et dure_, under, 180.

Edward III., battle, discouraged by, 118.

Edward III., marriages of infants, under, 28.

Edward III., wager of law, under, 202.

Edward III., trial by battle before, 129.

Edward IV., benefit of clergy, under, 230.

Edward IV., wills, under, 317.

Edward VI., wills, under, 318.

Egypt, wills, in ancient, 309.

Elizabeth, abolished law wager, in ecclesiastic courts, 208.

Elizabeth, statute of, on benefit of clergy, 231.

Elizabeth, trial, by battle, under, 132.

Elizabeth, statute of, against witchcraft, 57.

Elizabeth, Queen, sanctuary claimed by, 260, 261.

Ellenborough, on trial by battle, in 1817, 133.

Ellsworth, Oliver, framed judiciary bill, in U. S., 96.

Emma, Queen, trial of, by ordeal, 159, 160.

England, administration in ancient, of justice, 89, 90.

England, witchcraft in, 70.

Essex, trial by battle with Montford, 128.

Eucharist, ordeal by, 143, 144.

F

“Fair Maid of Perth”, ordeal of bier, in (note), 166.

False-judgment, in Anglo-Saxon days, 92.

Fejee-Islanders, marriages by (note), 13.

Felony, attainder in, 173.

Felony, trial by battle for, 116.

Felton, case of John, in 1628 (note), 185.

Fiction, wills, in, 332.

Fisher’s, trial by battle, 131.

Flaying, punishment, by, 300.

Flollo and King Arthur, battle between, 127.

Fou-hi, Emperor, established marriage, in China, 12.

Fourteenth century wills, 319.

Franklin, will of Benjamin, 326.

Freakish wills, 324.

France, witchcraft in, 70.

G

Gallows-marriages, 41, 43.

Galzu, the judge, 74.

Garnier, case of, on witchcraft persecution, 55.

Gauls, marriage among, 32.

Gaunt, John of, and Catherine Swinford, 19.

Gaunt, John, will of, 320.

Gemot court, of Anglo-Saxons, 90.

Genesis, law of marriage traced to, 14.

George II., law of, regarding marriage, 24.

George III., abolished _peine forte et dure_, in 1772, 189.

George III., judges under, 95.

George III., abolished trial by battle, in England, 134.

Germans, trial by battle among, at early day, 109, 110.

Glanville, law of marriage stated by, 21.

Glanville, on trial by battle, under writ of right, 120, 122.

Glanville, ordeals, in time of, 155.

Glanville, wills, during time of, 313.

Glanville, wager of law, during time of, 200.

Glazier’s company case, 214.

Godwin, Duke, trial of, by ordeal, 160, 161.

Goliath, trial with David, 109.

Goths, trial by battle among, 111.

“Great Law”, wager by, in 14th century, 204.

Greece, recall in, 81.

Greece, effect of recall in, 103, 104.

Greece, sanctuary in, 247.

Gregory of Tours, case of law wager, 209.

Guillotine, punishment by, 293.

Gundibald, law of, regulating trial by battle, 111.

H

Hair, plucking off, punishment by, 299.

Hale, Sir Mathew’s, trial of witches, 60.

Hammurabi’s prerogatives, in decision of causes, 79.

Hammurabi, made infallibility the test of the judge, 106.

Hammurabi’s law against witchcraft, 45.

Hammurabi, code of, regarding marriage dowry, 31.

Hammurabi’s code, on judicial recall, 77, 80.

Hand, marriages by, in Rome, 17.

Hanging, punishment by, 279.

Hawes, Nathaniel, case of, in 1721, 186.

Hebrews, practiced polygamy, 15.

Henry II., benefit of clergy, under, 226.

Henry II., justices itinerant, under, 91.

Henry II., will of, 315.

Henry III., abolished ordeals, 157.

Henry III., _peine forte et dure_, under reign of, 178.

Henry III., trial by battle before, 129.

Henry IV., sanctuary, in reign of, 259.

Henry IV., _peine forte et dure_, under, 180.

Henry VI., law wager, under, 212.

Henry VI., wager of law, under, 206, 207.

Henry VI., _peine forte et dure_, under, 180.

Henry VI., trial by battle, before, 131.

Henry VII., benefit of clergy, under, 231.

Henry VII., trial by battle, before, 132.

Henry VII., sanctuary, under, 262.

Henry VII., sanctuary, under, 257.

Henry VII., _peine forte et dure_, under (note), 180.

Henry VIII., benefit of clergy, under, 234, 235.

Henry VIII., sanctuary curtailed by, 267.

Henry VIII., law wager, under, in 1527 (note), 213.

Hereford, battle with Norfolk, 130.

Hexham, sanctuary, at, 253.

Hincmar, views of, on ordeals, 162.

Holt, chief justice, cases by, on law wager, 214, 216.

Holt, lord chief justice’s trial of witches, 61.

Hopkins, Matthew, his cruelty against witches, 59.

Horsey, Doctor’s case, 236.

Hundred court, of Anglo-Saxons, 90.

Hungarians, marriages of infants, among, 29.

Huntingdon witch trials, 61.

Hutchinson’s work on witchcraft, 69.

Hyperbolus, recall of, in Athens, 86.

I

Ina, sanctuary, under, 251.

Independence of judges, established by William III., 94.

Independence of judges, under Constitution of U. S., 97.

Independence of judges, wisdom of, demonstrated, 106.

India, polyandry in, 16.

Ine, laws of, governing ordeals, 149.

Infallibility, the test of judicial action in Hammurabi’s time, 106.

Infant marriages, 28.

Infant marriages, in Brazil, 29.

Innocent III., marriage under, 21.

Inquisition, punishment by, 286, 288.

Iron, ordeal by hot, 143.

Isaac and Rebekah, 33.

Israelites, taking a wife, by (note), 13.

Israelites, wager of law, under ancient, 197.

Itinerant justices, 91.

J

Jacob’s will, 309.

James I., repealed right to sanctuary, 268.

James of Scotland, his belief in witchcraft, 57.

Jealousies, law of, 141, 142.

Joan of Arc, persecution of, 52.

Jonson, clergy, claimed by Ben, 238, 239.

Judge, definition of, 74.

Judges, in patriarchial days, 75, 76.

Judges, servants of king, in old England, 91.

Judges, liability of, in England, 95.

Judicial recall, 74, 108.

Judicial tenure in American colonies, 98.

Judgment in _peine forte et dure_, 172, 173.

Jury trials under King Alfred, 151.

Jury trials used instead of battle, under Edward III., 118.

Justice, King, the fountain of, in England, 90.

Justice, sale of, in ancient England, 90.

Justices, itinerant, in England, 91.

Justinian’s definition of marriage, 12.

K

Katherine, of Aragon, will of, 321.

Kent, Chancellor, on common-law marriages, 23.

Kentucky, clergy claimed, in, 241.

King, the fountain of justice, in England, 90.

King Alfred’s courts, 89, 90.

King’s bench, court of, in England, 90.

Knighthood, effect upon trial by battle, 113, 114.

L

Lamech, established polygamy, 15.

Law, wager of (See wager of law), 196, 220.

Law suits under Hammurabi, 80.

Legitimacy, of mantle-children, 18, 19.

Leo, Emperor, law against concubinage, 18.

Littleton, on benefit of clergy, 230.

Littleton, law of dower, by, 32.

London, charter of, exempting trials by battle, 119.

Longfellow, presents case of Giles Cory, 187, 189.

Louis le Debonnaire, abolished ordeal of the cross, 148.

Luther, marriage ceremony, by (note), 36.

Law, of marriage, 12, 44.

M

Maiden-rent, 30.

Majestas, under Roman Republic, 88.

Mantle-children, law of, 18, 19.

Marriage, laws and customs of, 12, 44.

Marriage, definition of, 12.

Marriage, three forms of, 15.

Marriage, Biblical theory concerning, 14.

Marriage, under Mosaic law, 14.

Marriage, _per verba de praesenti_, at common law, 23.

Marriage, _in facie ecclesiae_, 23.

Marriage, by sale, 13.

Marriage, by rape, 13.

Marriage, by capture, 13

Marriage, Morganatic (note), 17.

Marriage, putative, 26.

Marriage, retroactive, 26.

Marriage, required to be celebrated by clergy, in 1753, 24.

Marriage, a civil contract, under English law of 1836, 24.

Marriage, within Levitical degree prohibited, 17.

Marriage, between uncles and nieces, 18.

Marriage, between aunts and nephews, 18.

Marriage banns, 21.

Marriage dowry, origin of, 31.

Marriage, not a religious ordinance, 20.

Marriage, religious ceremony required in 1563, 20.

Marriage, legitimates, mantle-children, 18, 19.

Marriage-ring, origin of, 33.

Marriage, forms of, by Roman law, 16.

Marriage, under Twelve Tables, of Romans (note), 21.

Marriage, exalted by Roman law, 16.

Marriage, by hand, in ancient Rome, 17.

Marriage, a partnership, by Roman law, 16.

Marriage, among Gauls, Caesar’s reference to, 32.

Marriage, in Pericles’ time, 27.

Marriage, appertained to spiritual forum, in 12th century, 21.

Marriage, in Glanville’s time, 21.

Marriage, by infants, 28.

Marriage, in United States, 23.

Marriage, form of, in Persia, 34.

Marriage, among Hungarians, 29.

Marriage, at gallows, 41.

Marriage, in a “shift”, 37, 42.

Marriage, between Shechem and Dinah, proposal of, 14.

Marriage, between Claudius and Agrippina, 18.

Marriage of Richard de Anesty, in 1143, 21.

Marriage between John of Gaunt and Catherine Swinford, 19.

Marriage between Duke Richard and Gunnora, 19.

Marriage laws, in England, in 7th century, 21.

Marshal, trial for treason must be before, 118.

Marshall, Chief Justice, on independence of courts, 101.

Marshall, Chief Justice, probable recall of, 100.

Marshall, will of Chief Justice, 327.

Mary, Queen, law against witches, in Scotland, 56.

Mary, Queen, sanctuary, under, 259.

Massachusetts, clergy claimed in, 239.

Massola, punishment by, 293, 294.

Meinhold’s “Amber Witch”, 71.

Menu, institutes of, on marriage (note), 13.

“Middle Law”, wager by, in 14th century, 204.

Millis case, 24, 25.

Milton’s idea of the devil, 69.

Minnesota, clergy claimed in, 241.

Minority alone protected by the courts, 103.

“Minstrelsy of Scottish Border”, ordeal of bier, in, 166.

Mischief of recall in Athens, 86.

Molay, persecution of, under charge of witchcraft, 52.

Monogamy, definition of, 15.

Monogamy, best suited to civilization, 15.

Monogamy, in ancient Greece and Rome (note), 16.

Morganatic marriages, 17.

Mosaic code, sanctuary traced to, 244.

Mosaic code, wager of law, under, 196.

Mosaic conception of judicial functions, 75, 76.

Mosaic law, against witchcraft, 46.

Mosaic law, requiring marriage to brother’s widow, 35.

Moses, law of marriage, 14.

Moses, advice to judges, 75, 76.

Moses, warning, of, in rendering judgment, 101.

N

Narada, institutes of, 145.

Nazarene, delivery of, to multitude, 122.

Neck-verse, in benefit of clergy, 229.

Necromancy in mediaeval times, 49.

Neilson, trial by battle by, 129.

“New England Tragedies”, case of Giles Cory, in, 187, 189.

New Zealand, marriages, in (note), 13.

_Nil debit_, wager or law, in cases of, 197.

Norfolk, battle with Hereford, 130.

Normans, introduced battle, into England, 114.

Northampton, assize of, 154.

North Carolina, clergy claimed in, 240.

Nuns, entitled to clergy, 228.

Nurse, Rebecca’s trial for witchcraft, 67.

O

Oath-helpers, in wager of law, 205, 207.

Oil, ordeal by, 143.

Ordeal, trial by, 141, 170.

Ordeal, definition of, 141.

Ordeal, antiquity of, 141.

Ordeal of the bier, 143.

Ordeal, by the corsned, 143.

Ordeal, by red hot iron, 143.

Ordeal, by the Eucharist, 143.

Ordeal, by fire, 142, 143.

Ordeal, by the cross, 143.

Ordeal, of the bier, as presented in Richard III., 166.

Ordeal, by balance, 143.

Ordeal, by poison, 143.

Ordeal, by water, 143.

Ordeal, by hot oil, 143.

Ordeal, influence of Church on trials by, 168, 169.

Ordeal, under Ine, 149.

Ordeal, trials, under Richard I., 163.

Ordeal, trials, reported by Palgrave, 163, 164.

Ordeal, of bier, as presented in “Minstrelsy of Scottish Border”, 166.

Ordeal, of bier, in “Fair Maid of Perth” (note), 166.

Ordeal, to establish paternity of children, 159.

Ordeal, under Athelstan, 149.

Ordeal, under Canute, 152.

Ordeal, under Edward the Elder, 152.

Ordeal, under Edward the Confessor, 152.

Ordeal, under William Rufus, 156.

Ordeal, under Charlemagne, 147, 148.

Ordeal, under William the Conqueror, 153.

Ordeal, under Henry II., 154, 155.

Ordeal, in time of Glanville, 155.

Ordeal, abolished by Henry III., 157.

Ostracism, in ancient Greece, 81.

Otho, established trial by battle, in 983 A. D., 112.

P

Partnership, marriage, a, by Roman law, 16.

Palgrave’s record of ordeal trials, 163, 164.

Parson’s, Chief Justice, on marriages at common law, 23.

Paynel, William and Margaret’s case, in 1302, 26.

_Peine forte et dure_, 172, 195.

_Peine forte et dure_, definition of, 172.

_Peine forte et dure_, proceeding in, 174.

_Peine forte et dure_, judgment in, 172, 173.

_Peine forte et dure_, applied in 1215 (note), 174.

_Peine forte et dure_, case of, in 1219, 178.

_Peine forte et dure_, statute of Westminster on, 178.

_Peine forte et dure_, under Edward I., 175, 176.

_Peine forte et dure_, under Henry III., 178.

_Peine forte et dure_, under Edward III., 179, 180.

_Peine forte et dure_ during Bracton’s time, 179.

_Peine forte et dure_, under Henry IV., 180.

_Peine forte et dure_, under Henry VII. (note), 180.

_Peine forte et dure_, cases of, in 1221, 179.

_Peine forte et dure_, from 15th to 18th century, 177.

_Peine forte et dure_, from 16th to 17th century, 184.

_Peine forte et dure_, abolished in 1772, 189.

_Peine forte et dure_, in United States, 187, 190.

_Peine forte et dure_, abolished by act of Congress, in U. S., in

1825, 191.

_Peine forte et dure_, case of Giles Cory, in 1692, 187, 189.

_Peine forte et dure_, case of Walter Calverly, 184.

_Peine forte et dure_, case of Margaret Clitherow, 180, 183.

_Peine forte et dure_, case of John Durant, in 1734, 187.

_Peine forte et dure_, case of John Felton, in 1628 (note), 185.

_Peine forte et dure_, case of Anthony Arrowsmith, 183.

_Peine forte et dure_, case of Burnworth, in 1726, 186.

_Peine forte et dure_, case of Phillips, in 1720, 186.

_Peine forte et dure_, case of Nathaniel Hawes, in 1721, 186.

_Peine forte et dure_, illustrations of, from Shakespeare, 192, 193.

_Peine forte et dure_, case of Sir Richard Weston, in 1615, 184, 185.

_Peine forte et dure_, case of Major Strangeways, in 1657, 185.

_Peine forte et dure_, case of Juliana Quick, 180.

_Peine forte et dure_, case of Cecelia Rygeway, 180.

_Peine forte et dure_, in 1827, 190.

_Peine forte et dure_, conclusions regarding, 193, 195.

Penn, William’s trial of witches, 62.

Penn, will of William, 328.

Pericles, marriage under, 27.

Perjury, battle established to prevent, 112.

Persia, form of marriages in, 34, 35.

Petalism, law of repealed, 452 B. C., 87.

Petalism, in Syracuse, 86.

Phillips, of Newgate, case of, in 1720, 186.

_Piepoudre_ courts, under Anglo-Saxons, 90.

Plato, will of, 310.

Poetic wills, 330, 333.

Poison, ordeal by, 143, 146.

Pelagius I., Pope, case of law wager, in 6th century, 209.

Poland, capture-marriages in (note), 13.

Political methods, trial of judges by, in Greece, 105.

Polygamy, definition of, 15.

Polygamy, established by Lamech, among Hebrews, 15.

Polygamy, among Hebrews, 15.

Polygamy, prohibited by Diocletian, 16.

Polygamy, in Persia, 15.

Polygamy, in Turkey, 15.

Polygamy, in Rome, 15.

Polyandry, definition of, 15.

Polyandry, origin of, 16.

Polyandry, practiced in India, Thibet and Ceylon, 16.

Preators, recalled in Rome, 87.

Precipitation, punishment by, 279.

Pressing to death (See _peine forte et dure_), 172, 195.

Primogeniture, effect of, on law of wills, 317.

Priscot, C. J., on trial by battle for treason, 118.

Privilege of sanctuary (See sanctuary), 244, 272.

Procedure of recall, in Athens, 82.

Property rights of wife, by Roman law, 16.

Property, protected by courts, alone, 103.

Punishment, as viewed by Beccaria, 274.

Punishment, definition of, 273.

Punishment, by Chatelet, of Paris, 289, 292

Punishment, by beheading, 276.

Punishment, by Bilboes, 303.

Punishment, by blinding, 295.

Punishment, by boiling in oil, 285.

Punishment, by branding, with hot iron, 297.

Punishment, by crank, 305.

Punishment, by burning to death, 276.

Punishment, by burying alive, 282.

Punishment, by crucifixion, 280.

Punishment, by cutting off ears, 296.

Punishment, by drawing and quartering, 283, 284.

Punishment, by drowning, 277.

Punishment, by ducking, 303.

Punishment, by exposure to wild beasts, 279.

Punishment, by flaying, 300.

Punishment, by guillotine, 293.

Punishment, by hanging, 279.

Punishment, by inquisition, 286, 288.

Punishment, by Massola, 293, 294.

Punishment, by plucking off the hair, 299.

Punishment, by precipitation, 279.

Punishment, by rack, 304.

Punishment, by sawing asunder, 279.

Punishment, by scourging with thorns, 302.

Punishment, by stocks, 304.

Punishment, by strangling, 279.

Punishment, by stoning to death, 279.

Punishment, by wheel, 301.

Punishments (See ancient punishments), 273, 306.

Purchase of justice, in England, 91.

Putative marriages, 26.

Q

Quaint and curious wills (See wills, quaint and curious), 307, 334.

Quick, Juliana, case of, 180.

R

Rack, punishment, by, 304.

Rape-marriages, 13.

Recall of judges, 74, 108.

Recall of judges, meaning, of, 74.

Recall, among Medes and Persians (note), 78.

Recall, effect of, in Babylon and Greece, 103, 104.

Recall, established by Cleisthenes, in Greece, 82.

Recall, in ancient Greece, 81.

Recall, in Athens, explained by Aristotle, 82.

Recall, discarded in Athens, 86.

Recall, in ancient Rome, 87.

Recall, by Augustus Caesar, 88.

Recall, by King, in England, 94.

Recall, by “false-judgment” trials, in England, 93.

Recall, in case of Rebecca Nurse, 102.

Re-hearings, none, under Hammurabi’s code, 78.

Retroactive marriages, 26.

Rice, an emblem of fruitfulness, 35.

Rice-throwing, 34.

Richarda, Empress, trial of, by ordeal, 159.

Richard de Anesty’s marriage, in 1143, 21.

Richard, Duke of, and Gunnora, 19.

Richard I., ordeal trials under, 163.

Richard III., ordeal of bier, as presented in, 166.

Right, writ of, procedure in battle under, 116.

Ring, in marriages, origin of, 33.

Roland, song of, 135.

Roman forms of marriage, 16.

Roman marriage laws basis of our own, 16.

Roman marriage exalted, 16.

Roman marriage a partnership relation, 16.

Romans, wager of law, under, 197.

Rome, recall of judges in ancient, 87.

Rome, sanctuary in, 247.

Ruth and Boaz, espousal of, 36.

S

Sabines, rape of the (note), 13.

Saint Louis, abolished trial by battle, in France, in 1260, 134.

Sale-marriages, 13.

Sale-marriages, in Cnut’s time, 20.

Sale-marriages, recognized by church, 20.

Salem witch trials, 62, 68.

Sale, of justice in old England, 90.

Samuel, Mother, persecution of, 56.

Sanctuary, privilege of, 244, 272.

Sanctuary, definition of, 244.

Sanctuary, how claimed, 258, 259.

Sanctuary, under Mosaic code, 244.

Sanctuary, in Greece and Rome, 247.

Sanctuary, under Alfred, 251.

Sanctuary, under Constantine, 248.

Sanctuary, under Anglo-Saxons, 249.

Sanctuary, under Athelstan, 252.

Sanctuary, under Ina, 251.

Sanctuary, under Edward the Confessor, 254.

Sanctuary, under William the Conqueror, 252.

Sanctuary, abjuration of realm, in, 250.

Sanctuary, under Edward I., 256.

Sanctuary, in reign of Henry IV., 259.

Sanctuary, under Henry VII., 257, 262.

Sanctuary, curtailed by Henry VIII., 267.

Sanctuary, repealed by James I., 268.

Sanctuary, in Scotland, 265.

Sanctuary, under Queen Mary, 259.

Sanctuary, claimed by Queen Elizabeth, 260.

Sanctuary, at Hexham, 253.

Sanctuary, in literature, 269, 270.

Sawing asunder, punishment by, 279.

Saxons, sanctuary under, 249.

Saxons, wager of law, under, 197.

Scipio, trial by battle before, 126.

Scotland, persecutions for witchcraft in, 57.

Scotland, sanctuary, in, 265.

Scott, Sir Walter’s references to trial by battle, 137, 138.

Scott’s “Minstrelsy of Scottish Border”, 166.

Scourge, recall known as, in Athens, 83.

Scourging, with thorns, punishment, by, 302.

Selden, gives origin of marriage-ring, 33.

Selden, on trial by battle, 111.

Selden, procedure of trial by battle by, 122, 124.

Sennacherib, will of, 310.

Shakespeare’s reference to trial by battle, 136, 137.

Shakespeare’s reference to maiden-rent (note), 30.

Shakespeare, mention of the gemmal ring, by (note), 35.

Shakespeare, illustrations of _peine forte et dure_, by, 192, 193.

Shakespeare’s reference to sanctuary, 269.

Shakespeare’s will, 324.

Shechem’s negotiation for Dinah, 31.

Shells, used for votes on Athenian recall, 82.

Shoe, custom of throwing, 35.

Sisamnes, recall of (note), 78.

Smock-marriages, 37, 42.

Solomon, polygamy of, 15.

Sorcery, law of, 45, 70.

Spartans, marriages by capture, among (note), 13.

Stafford, Humphrey, sanctuary claimed by, 262.

St. Cunigundi, trial of, by ordeal, 159.

Standing mute (See _peine forte et dure_), 172, 195.

Standing mute, plea of not guilty, for, in 1827, 190.

Stedinger, persecutions of, 51.

Stocking-throwing, 34, 37.

Stocks, punishment, by, 304.

Stone’s case of clergy, 232.

Stoning to death, punishment by, 279.

Strangeways, case of Major, in 1657, 185.

Strangling, punishment by, 279.

Surgeons, under Hammurabi, 81.

Sweden, trial by battle in, 111.

Syracuse, the recall in, 86.

T

Tartars, marriages by (note), 13.

Templars, persecutions of, 52.

Testimony, value of, in time Henry II., 154.

Teutberga, trial of, by ordeal, 161, 162.

Themistocles, recall of, 83.

Testament (See wills, quaint and curious), 307, 334.

Thackeray’s references to trial by battle, 139.

Theodosius, law against marriages by, 17.

Thibet, polyandry in, 16.

“Third Law”, wager by, in 14th century, 204.

Thomas A’Becket, and benefit of clergy, 226.

Treason, battle could be stopped during trial of, 116.

Treason, benefit of clergy did not extend to, 228.

Trent, Council of, requiring religious ceremony, 20.

Trials in ancient Babylon, 79.

Trial by battle, 109, 140.

Trial by ordeal, 141, 170.

Trial of witches, 60, 70.

Tudor, Owen, claimed sanctuary, 260.

U

Unclergyable crimes, 233.

Uncles and nieces, marriages between, 18.

United States, clergy claimed in, 239, 241.

United States, clergy abolished in, in 1790, 236.

United States, cases of _peine forte et dure_, in, 187, 190.

United States, abolished _peine forte et dure_, by act of Congress,

in 1825, 191.

United States, punishment by ducking, in, 303, 304.

United States, law wager in, 219.

Upton, trial by battle of, 130.

_Usus_, marriage by, under Roman law, 16.

V

Varus, Quintilius’ observations on trial by battle, 110.

Virgil, will of, 311.

Vladimir, his espousal of the daughter of Raguald, 36.

Votes, in Athenian recall, 82.

W

Wager of law, 196, 220.

Wager of law, definition of, 196.

Wager of law, origin of, 199.

Wager of law, procedure in, 197, 198.

Wager of law, in ancient Babylon, 197.

Wager of law, under Mosaic code, 196.

Wager of law, under Alfred, 197.

Wager of law, under Wihtraed, 200.

Wager of law, description of, by Bracton, 201, 202.

Wager of law, compurgators in, 198.

Wager of law, by oath-helpers, 205, 207.

Wager of law, observations of Coke, on, 200.

Wager of law, in cases of _Nil debit_, 197.

Wager of law, kinds of, in criminal cases, 204.

Wager of law, in debt and detinue (note), 207.

Wager of law, trial of churchmen by, 210.

Wager of law, case of Pope Pelagius I., in 6th century, 209.

Wager of law, under Saxons, 197.

Wager of law, under Glanville, 200.

Wager of law, irrational nature of procedure in, 208.

Wager of law, and assize of Clarendon, in 1166, 209.

Wager of law, under Edward III., 202.

Wager of law, under Henry VI., 206, 207, 212.

Wager of law, under Henry VIII., in 1527 (note), 213.

Wager of law, statute of Elizabeth on, 208.

Wager of law, abolished in England, in 1833, 208.

Wager of law, in United States, 219.

Wager of law, case of Gregory of Tours, 209.

Wager of law, trial of Alice Colynbourgh, by, in 1435, 211.

Wager of law, Slade’s case, 213.

Wager of law, case of Robert Welby, in 1492, 213.

Wager of law, miscellaneous cases of, 203, 204.

“Waking” witches, 59.

Waldenses, persecution of the, 53.

Warbois, witches of, 56.

Washington, will of General, 327.

Water, ordeal by, 143, 144, 149.

Webster, Daniel, plea of law wager by, 219, 220.

Welby, case of Robert, in law wager, in 1492, 213.

Wenham, Jane’s’ trial for witchcraft, 61.

Westminster, statute of, on _peine forte et dure_, 178.

Weston, Sir Richard, case of, in 1615, 184.

Wheel, punishment, by, 301.

Wild beasts, punishment by exposure to, 279.

Will, definition of, 307.

William Rufus, ordeals under, 156.

William the Conqueror, ordeals, under, 153.

William the Conqueror, sanctuary, under, 252.

William III., judges under, 94.

William IV., abolished wager of law, in 1833, 208.

Will, of Jacob, 309.

Will, of Sennacherib, 310.

Will, of Aristotle, 310.

Will, of Plato, 310.

Will, of Virgil, 311.

Will, of Henry II., 315.

Will, of John of Gaunt, 320.

Will, of Katherine of Aragon, 321.

Will, of Shakespeare, 324.

Will, of Jeremy Bentham, 324.

Will, of William Penn, 328.

Will, of Benjamin Franklin, 326.

Will, of Chief Justice Marshall, 327.

Will, of General Washington, 327.

Wills, quaint and curious (See quaint and curious wills), 307, 334.

Wills, in ancient Egypt, 309.

Wills, under Cnut, 312.

Wills, in Anglo-Saxon, days, 312.

Wills, during Glanville’s time, 313.

Wills, under Edward IV., 317.

Wills, under Edward VI., 318.

Wills, effect of primogeniture on, 317.

Wills, effect of church’s influence, on, 314.

Wills, of 14th century, 319.

Wills, with charitable objects, 323.

Wills, to animals, 322.

Wills, poetic, 330, 333.

Wills, in fiction, 332.

Wisdom of independent judiciary, 106.

Witch, definition of, 45.

Witchcraft, law of, 45, 70.

Witchcraft, under Mosaic law, 46.

Witchcraft, under Constantine, 48.

Witchcraft, law of Charlemagne against, 50.

Witchcraft, prohibited by Anglo-Saxon laws, 49.

Witchcraft, persecution of the Stedinger under law of, 51.

Witchcraft, in England, 70.

Witchcraft, laws against in England, 57, 58.

Witchcraft, in France, 70.

Witchcraft, in Scotland, 57.

Witchcraft, in Scotland, under Queen Mary, 56.

Witchcraft, persecutions of the Templars, 52.

Witchcraft, authorities upon, 70.

“Witch of Walkerne”, 61.

“Witch-finder General”, 59.

Witches, trial of by Hammurabi’s code, 46.

Witches, trial of by Mosaic law, 46.

Witches, trial of by law of Twelve Tables, 47.

Witches, punishment of, 59.

Witches, of Warbois, 56.

Witch-mania in Europe, 54, 59.

Witch-trials, at Salem, 62, 68.

Witnesses, compurgation by, 158.

Writ of right, procedure in battle under, 116.

Writ of right, procedure under, in full, 120, 122.