were their gambols that even the lay world was impressed. In the early
years of Victoria John and Richard were common butts of popular satire.
Nothing seemed more gratuitous, more idly superfluous; but, turn to
their history, and you find how important and how serviceable were the
parts they once played.
One must begin far back. In early feudal times the cultivator of
another's land was either a serf or a person of no importance, holding
at his lord's will. The tenant's position improved with the times,
leases were granted, and if their conditions were broken, a Writ of
Covenant, as the form of action was called, secured him in possession,
and gave him damages for his wrongs. But this action lay, as the
technical term is, between the original parties alone; so that if he
were turned out by a complete stranger, or by a person claiming through
another grant of the same landlord, his remedy was merely pecuniary. In
the time of Henry III. a writ was invented giving him full protection
against anyone interfering under colour of another lease from his lord:
but the case of an Ouster (or dispossession) by an utter stranger
was not adequately provided for until the beginning of Edward III.'s
reign, when the writ of _Ejectio Firmæ_, or ejectment, was adapted
from the proceeding in trespass. It called upon the wrong-doer of
every species to show why, "with force and arms," he had entered on
and taken possession of the plaintiff's land. But, again, the result
was only money damages: so that he was driven for relief to the
equitable jurisdiction of the Chancellor, who, by injunctions and so
forth, secured him in, or restored him to, possession of the very land
itself. Presently the Common Law Courts took it ill that so much of
their legitimate business should go elsewhere; and, at the end of the
fifteenth century, they allowed the term itself, as well as damages for
the Ouster, to be recovered under a Writ of Ejectment, and this remedy
was held proper against every species of wrong-doer.
And if, not the tenant, but the landlord himself, were deprived of his
property? or, if anyone not in possession claimed a piece of land as
his freehold? These forms of procedure were not available, since they
were personal actions, and a claimant to the freehold must proceed
by a real action. These last were in early times the most important
of all. But their forms were numerous and varied (the assizes of
_morte d'ancestor_ and _novel disseisin_, as they were called in old
law French, were two of the best known), and their cumbersome and
complicated technicalities were cause of much expense, irritation,
and delay. At last it occurred to some ingenious, though forgotten,
jurist so to twist this Writ of Ejectment, which had all the last
improvements, as to make it available in an action for the recovery
of the freehold. That was done in this way. A. was (let us suppose)
the legal and rightful owner of an estate occupied in fact by B.;
he entered on the land with C., to whom he, then and there, signed,
sealed, and delivered a lease for the property in question; to them
so engaged entered B., attracted by their manoeuvring, and speedily
kicked both into the boundary ditch. Here were all the materials
for the action of ejectment, since C. might truly declare himself
dispossessed _vi et armis_ by B. from land whereof he held a lease from
A. In this action the main point evidently was: Had A. a right to
grant C. the lease? In other words, was A. the real owner of the land?
If the jury said "Yes," then judgment for possession followed for C.,
who, being merely the nominee of A., forthwith passed the property over
to him. Improvements were speedily suggested. Actual ejection was like
to prove unpleasant, so A. and C., instead of ostentatiously soliciting
B.'s attention, took with them a confederate D., who, in a friendly
and affable manner, performed the function of a chucker-out, and this
casual ejector (as they named him) was made nominal defendant in the
action wherein C. was nominal plaintiff. Lest B. should be condemned
unheard, it was provided that the casual ejector must give him notice
of the proceedings, whereupon he was let in to defend in place of D.
This device was a brilliant practical success. Real actions pure and
simple fell speedily into disuse, though it was not till 1833 that,
with a few exceptions further tampered with in 1860, they were legally
abolished.
The Commonwealth was a time of legal as well as political change.
The Lord Protector had, with quaint emphasis, described the Court of
Chancery as "an ungodly jumble," and Rolle, his Lord Chief Justice
of the Upper Bench, before and since known as the King's Bench, laid
violent hands on the action of ejectment. "What," urged he in effect,
"was the use of actual entry, lease and ouster? Let all be held as
done: so that the Court may apply itself at once to the real question
at issue." Finally, the action was in name _Doe_ against _Roe_, but
the writ as a mere form was suppressed, and the first step was the
declaration and notice to appear, both served on the real defendant or
his tenant. The declaration stated that the land in question had been
demised by A. (the real claimant) to John Doe; but that Richard Roe had
entered thereon by force and arms and ejected him, "to the great damage
of the said John Doe, and against the peace of our Lord the now King;"
and that therefore he brought this action. To this there was appended
a letter, signed "your loving friend Richard Roe," addressed to B.,
the real defendant, and informing him that the sender, hearing that he
claimed the land, must now tell him that he (Richard), being sued "as
a casual ejector only, and having no title to the same," he advised
him (B.) to enter appearance as defendant, "otherwise I shall suffer
judgment therein to be entered against me by default, and you will be
turned out of possession." Now, to succeed in his action, the plaintiff
must clearly prove four things--Title, Lease, Entry, and Ouster; and
the three last he could not do, since they never happened. This little
difficulty was got over by a consent rule: the Courts allowed B. to
take Richard Roe's place as defendant, only on condition that he would
confess those three things to have happened which never did happen:
whereupon the real question of title alone remained.
So strangely had this action varied from its first use--which was to
recover damages for wrongful possession of land--that in the result
these were nominally estimated at a shilling; and if A. really wished
to make B. disgorge the spoils of possession, he sued him again for
Mesne Profits. Although the action was nominally "_Doe_ against _Roe_,"
the cases are usually cited as "_Doe on the demise of A._" (the real
plaintiff) "against B." (the real defendant), and whilst John and
Richard were the favourite styles, we have occasionally "_Good Title_
against _Bad Title_": a comically impudent begging of the question
at issue. If the outside public mocked these venerable figures, _par
nobile fratrum_, the suitor did so at his peril. A certain Unitt
(_temp._ George I.), being served with a copy of a Declaration in
Ejectment, "pronounced contemptuous words on the delivery of it," and
the judges in solemn conclave held that he was in contempt, and was
deserving of punishment therefor. So the masque of shadows went on
till 1852, when the Common Law Procedure Act removed an obstacle which
lawyers had walked round for centuries, and consigned John Doe and
Richard Roe to that limbo where so much legal rubbish lies buried under
ever-thickening clouds of dust.
SANCTUARY
Your old-world lawyer was an ardent, if uncritical, antiquary. He
began at the beginning, and where facts ran short his fancy filled
up the blank. In discussing Sanctuary he started with the biblical
cities of refuge. He had something to say of Romulus and the foundation
of Rome. Geoffrey of Monmouth supplied him with the name of a
sovereign--Dunwallo Molmutius to wit--who flourished in Druidical
Britain (B.C. 500 it was said), under whom cities and even
ploughs were arks of refuge for the despairing fugitive. It might have
been objected that the ancient Britons had neither ploughs nor cities;
but such criticism was not yet in the land. We touch firmer ground in
the centuries immediately preceding the Conquest. In early English
legislation churches safeguarded the criminal from hasty vengeance,
and so allowed time to settle the money compensation payable for
his offence. Sanctuary was among the privileges that the Conqueror
conferred upon his foundation of Battle Abbey--one of many cases
wherefrom the Norman lawyers built up a system for mediæval England.
That system was not always consistent or clear, but its main outlines
were as follows:--sanctuaries were of two kinds--general, as all
churches and churchyards; special, as St Martin's Le Grand and
Westminster. No doubt these last had originally also a religious
sanction. Such places were twice consecrate: Pope and King, the Canon
and the Common Law united in their favour. They protected felons, but
not those guilty of sacrilege or (some held) of treason. They were not
properly for debtors, whose reception was nevertheless justified by
an ingenious quibble. Imprisonment might endanger life, and therefore
(so the learned argued) the runaway debtor must be received. A man
took sanctuary thus--Having stricken (let us say) his fellow, he fled
to the cathedral and knocked (with how trembling a hand!) at the door
of the galilee. Over the north porch were two chambers where watchers
abode night and day. On the instant the door swung open, and had scarce
closed behind the fugitive when the galilee bell proclaimed to the
town that another life was safe from them that hunted. Then the prior
assigned him a gown of black cloth marked on the left shoulder with
the yellow cross of St Cuthbert, and therewith a narrow space where
he might lie secure of life, though ill at ease. So it was at Durham.
At Westminster the sanctuary man bore the cross keys for a badge, and
walked in doleful state before the abbot at procession times; and there
were, no doubt, countless variations. A phrase of the time reveals how
close the watch was now and again. Under Edward II. it was complained
that the sanctuary man might not remove so much as a step beyond
the precincts, _causâ superflui deponendi_, without being seized and
haled to prison. He was fed and lodged in some rough sort for forty
days, within which time he must confess his crime before the coroner
at the churchyard gate, and so constitute himself the king's felon.
Then he swore to abjure the realm. The coroner assigned him a port of
embarcation (chosen by himself), whither he must hasten with bare head,
carrying in his hand a cross, not departing, save in direst need, from
the King's highway. He might tarry on the shore but a single ebb and
flow of the tide, unless it were impossible to come by a ship, in which
case he must wade up to his knees in the sea every day. He was thus
protected for another forty days, when, if he could not find passage,
he returned whence he came, to try his luck elsewhere.
He who refused to confess and abjure was not driven forth, but if,
after much spiritual admonition, he still refused to conform, he had
neither meat nor drink given him, and so was ended, if not mended.
A man unjustly deprived of sanctuary could plead the right before
his judges. It was a declinatory plea, and must be urged before he
answered as to his guilt or innocence; it availed him nothing to do
so after, for he was strung up forthwith. This system, however harsh,
had two very plain advantages. It was a short and easy method with a
rascal, and it powerfully made for scientific accuracy in pleading. If
a fugitive were caught and condemned ere he "took Westminster," as the
town phrase ran, it was no advantage for him to escape on the way to
execution, inasmuch as he was promptly haled forth to the gallows. A
curious case in the eighth of Edward II. perplexed the ancient student.
A woman was condemned to death, but a jury of matrons had no doubt
as to her condition, and she was reprieved. She escaped to sanctuary
before the arrival of the hangman's cart, and when the gaoler dragged
her out, the judges bade him put her back again, whereat the learned
shook their heads, opining that hard cases make bad law, and the jade
should have swung like other folk.
On the whole the privilege was strictly respected. For instance, the
King's justices were wont to hold session in St Martin's Gate. They
sat on the very border. The accused were placed on the other side of
the street; a channel ran between them and their judges, and if they
once got across _that_ they claimed sanctuary, and all proceedings
against them were annulled. And one sees the reason why Perkin Warbeck
took such care "to squint one eye upon the crown and the other on the
Sanctuary" (as Bacon curiously phrases it); yet the great case of
Beckett is there to show that nothing was absolutely sacred in these
violent years. Nor does it stand alone. In 1191, Jeffrey, Archbishop
of York, and son of Henry II., was seized at the altar of St Martin's
Priory, Dover; and dragged, episcopal robes and all, through dirty
streets to the Castle: this, too, by order of William Longchamp, Bishop
of Ely, and Papal Legate. In 1378, Archbishop Sudbury complained in
Parliament that one Robert Hawley had been slain at the high altar even
while the priest was saying a mass. It was rumoured indeed that one
Thurstian, a Knight, chasing a sanctuary man with drawn sword, was of a
sudden stricken with grievous ailments. But this and other like stories
did not deter the citizens of London (_circa_ 1349) from assembling
at supper time in a great crowd, and dragging forth a soldier who had
escaped on the way from Newgate to Guildhall, where he was being taken
for trial. In another case (_temp._ Henry VI.), where a youth had taken
sanctuary after having foully slain a kind mistress, the good women
about St Martin's broke in and despatched him with their distaffs. Of
those who took sanctuary to good purpose the most famous was Elizabeth,
widow of Edward IV., who, in 1471, registered herself a sanctuary
woman in Westminster, and there sat, in Sir Thomas More's phrase, "Alow
in the rushes." But you have read the tragic story in Shakespeare. And
in a later age "beastly Skelton" (as Pope will have him), from that
same Westminster safely lampooned the mighty Wolsey, though for that he
needs must live and die there.
To catalogue the evils of the sanctuary system were to show lack of
historical sympathy, nay, even of humour. The former days were not as
these; it had its place with the shrine and the pilgrimage, the knight
errant, and the trial by ordeal in the strange economy of a vanished
world. As the times grew modern its practical inconvenience was felt
for the first time. Yet the occasion of the first assault on the
privilege of sanctuary was one where the benefits were conspicuous,
and the assailant had the worst of motives. It was the case just noted
of Edward IV.'s widow; she had the young Duke of York as yet safe
with her. Her enemies were at a loss for the moment, and Buckingham,
then the sworn ally of Richard of Gloucester, took occasion in the
Privy Council to attack her place of refuge. "There were two chief
plague-spots in London," he snarled: "one at the elbows of the city
(Westminster), the other in the very bowels thereof (St Martin's le
Grand). These places were the refuge of theeves, murtherers, and
malitious, heynous traytors! nay," he added, "men's wives ran hither
with their husbands' plate, and say they dare not abide their husbands
for beating," with more to the same effect. Had not Elizabeth yielded,
Westminster might have witnessed a violation as affecting as that of
Canterbury.
Under Henry VIII. the old order was broken up, and sanctuary law,
like much else, was changed and amended again and again. First, all
special places save Wells, Westminster, and six others, lost the
privilege. Divers classes of criminals --as traitors, and pirates
(and afterwards) Egyptians--were formally rendered incapable of its
enjoyment. Before the sanctuary man abjured the realm he was burned
on the crown of the thumb "with the signe of an A," and if he did not
depart on the instant, he had no further protection. But it occurred to
over-anxious legislators that such a fugitive might carry beyond seas
precious hints of the mysteries of trade or politics, or that, making
as if for the nearest port, he might but proceed to infest another
place. So he was ordered to abjure the liberty of the realm, but not
the realm itself; and being branded, was confined under a governor in
one or other of the sanctuaries. Whenever he ventured forth--as he
might in the daytime--he must wear the prescribed badge of the refuge.
He dare carry no weapon save a meat-knife, and that but at meal-times.
He must likewise answer to the daily roll-call. If he committed another
felony--and crimes done _sub spe redeundi_ had been a sore grievance
of late--he was to lose his rights. The governor was empowered to
hold courts for debt and minor offences within his bounds. And so "the
sanctuary person abjured," as the Tudor lawyers phrased him, spent the
last days of his evil life. I need not dwell on minor tinkerings of the
system under Henry's children. In 1623 the Statute 21 James I., c. 28,
s. 7 made a legal end of the right of sanctuary.
The last of our story is not yet. Certain places still assumed the
right of giving shelter against civil process. When the bailiffs
invaded the liberty, the whole population forthwith set on, and
pommelled them so lustily that they were fortunate if they escaped
sound in limb. The precincts of Whitefriars and the Savoy were
the worst places in London. The first, renowned in slang, nay, in
literature, as Alsatia, because (some explained) it neighboured the
Temple on the East, as Alsace did France, was a base and villainous
Bohemia. Ram Alley (now Mitre Court), a local Lombard Street, Salisbury
Court (now Salisbury Square) were its chief ways, though probably
all between Fleet Street and the river, which was not the Temple,
held of this lawless republic. A bully or bravo, or squire of Alsatia
was a cant name for a penniless and violent fellow of the time. He is
pictured by Otway in his _Soldier's Fortune_ with flopping hat pinned
up on one side, with a tawdry weather-beaten peruke, dirty linen, and
a long scandalous iron sword jangling at his heels. The sheriff with
the _posse comitatus_ did on occasion raid Alsatia, but his prey, if
too weak to fight, had ever timely warning to escape by land or water
to some other like burrow. _The Fortunes of Nigel_ tells as much of the
place as the general cares to know, and there is much curious matter
mined out by the zealous antiquary as to other like places of refuge
in the capital. Thus Fullwood's, sometime Fuller's Rents, was related
to Gray's Inn as Alsatia to the Temple. In 1673 the gentlemen of that
ancient house so far forgot themselves as to engage in "pumping"
some bailiffs who attempted to take goods from out the Rents upon an
execution. "They were charged with a body of thirty lusty bailiffs,"
and a "strong ryot" ensued. Possibly they recollected that their most
illustrious fellow-member, "broad-browed Verulam," had taken refuge
there some sixty years before, a circumstance which gave my Lord Coke
occasion to "gall the kibe"--as indeed he never lost any chance to
do--of his great contemporary. Then there was the mint in Southwark,
whereto an ex-poet laureate, "poor Nahum Tate," as Dr. Johnson calls
him, was driven by extreme poverty. Pope's cruel satire pictures it
half Grub Street half Bedlam, the last refuge of the hack and the
poetaster. The Clink and Deadman's place are now forgotten, whilst
Baldwin's Gardens and the Minories have a more commonplace reputation.
About a century after James's Act, Parliament again interfered, and
professed to strip the "pretended privileged places" of every shred
of exemption, but it required two other statutes, the 9 Geo. I. c.
28, 1722, and the 11 Geo. I. c. 22, 1724, to make the law's process as
effectual there as elsewhere.
TRIAL BY ORDEAL
Before the Conquest, and for long after, local justice in England was
administered by two courts--that of the Hundred and that of the Shire.
The first nominally consisted of the freeholders of the district,
but the real business was done by a Committee of Twelve. The second
was made up of the chief men of the district, and representatives
from each township; but here, again, the work was left to a select
few. If a man were charged with (say) theft before either court, he
was tried in a fashion vastly different from that obtaining to-day.
The complainant was sworn on the holy relics: "By the Lord I accuse
not this man either for hatred, or for envy, or for unlawful lust of
gain." This solemn accusation made out a _primâ facie_ case against
the suspect, who instantly rebutted oath with oath. "By the Lord I
am guiltless, both in deed and in counsel of this charge." Then he
produced twelve compurgators, who swore by the Lord, "The oath is clean
and unperjured which this man hath sworn"; then the prisoner went free.
These compurgators were witnesses to character. Their testimony had
no reference to the particular facts of the case; they simply alleged
their belief in accused's innocence, but sometimes their oath "burst"
(as the curious technical phrase ran), that is, he could not find
compurgators, or those he produced said little good of him; or he was
a stranger of whom nothing was known; or a Welshman whose veracity has
never been an article of faith; or the accused was caught with his
booty; or was a woman; or the charge was peculiarly odious, as treason,
or witchcraft; then in all these cases there was an appeal to the
_Judicium Dei_, the Creator was called upon to prove beyond dispute the
guilt or innocence of the accused.
Trial by Ordeal was more ancient than the Church itself. There are
traces of it in the Old Testament; it is discussed in great detail in
the Laws of Manu; a famous passage in the _Antigone_ (verses 264-267)
reveals it as well known to the Greeks, and before Augustine came, or
St Columba preached, it prevailed in some form or other in Britain.
Yet the higher ecclesiastical powers continually thundered against it,
and finally brought about its disuse. There were several varieties,
but many forms were common to all. First, there was the ordeal of
cold water, chiefly reserved for the baser fellow. As a preliminary
the accused submitted to a fast of three days, during which he was
watched by a priest, then he was taken to church to hear Mass; and was
adjured by Father, Son, and Holy Ghost, by the gospels and relics of
the saints, by everything held most sacred, not to partake of communion
if he were guilty. Next came the _adjuratio aquæ_, wherein the water
was enjoined to cast him forth if he were guilty, but to receive him
into its depths if innocent. And now, having been stripped, he kissed
the Book and the Cross, was sprinkled with holy water and was cast in,
to float if he were guilty, to sink if he were not. But there was the
rub--how about death by suffocation? Sir James Stephen suggests that
it was all a mode of happy despatch! Or (one fancies) it might be an
elementary form of the famous verdict "not guilty, but don't do it
again," with the chance of doing it again effectually provided against.
On the other hand, a recipe for immersion in a thirteenth century MS.
of the Monastery of Becca reduces the proceedings to the level of
farce. The hands of the accused were tied, and a rope was put round his
waist; "and let a knot be made in the rope as high up as the longest
hair of the man's head will reach, and then in this way let him be
gently lowered into the water; and if he sinks down to the knot, let
him be pulled out as innocent; if not, let him be adjudged guilty." How
_not_ to sink under such conditions? The practice of testing witches
by throwing them, securely tied, into the nearest pond was clearly a
survival of this form of ordeal.