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Has not that its Lumber Room of repealed Statutes, discarded methods,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if less picturesque, and John Doe and all his tribe are long out of
date.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