strange extremes. Probably one underlying reason of this, at a date so
late, was to make sure that no formality should be lacking to make the
forfeiture effective. But the main reason one must believe lay in its
being a traditional observance. In the trial in 1600, of the Earl of
Gowrie and his brother for an alleged attempt on the king's life, the
privy council on the preamble[49] that it was necessary to have their
corpses kept and preserved unburied, issued an act to that effect, and the
treasurer's accounts contain an entry "for transporting of the corpis of
Gowrie and his brother." Their bodies were accordingly produced at the
trial, and the sentence which pronounced them guilty of treason and
lesemajesty during their lifetime, declared[50] their name, memory, and
dignity extinguished, and ordained that "the dead bodeis of the saidis
Treatouris," should be hanged, quartered, and gibbetted. Their "twa
hedis," a grim diarist[51] tells, were set upon the tolbooth, "thair to
stand quhill[52] the wind blaw thame away."
The last case[53] in the annals, in which this revolting Scottish
"practick" was put into effect, occurred in 1609. Robert Logan, of
Restalrig, had been nearly three years in his grave when it was given out
that he had been a party to the alleged Gowrie conspiracy against King
James. A process[54] was at once taken in hand to proscribe his memory and
escheat his property. As death was no excuse, neither was burial; and the
ghastly form was gone through of exhuming the bones for presentation at
the trial. It was a case plainly within the exception provided for in the
act of 1542, for the man was not "notourly" a traitor, he had died in
repute of loyalty: but the Crown was eager for a conviction. Much
incredulity had been rife with regard to the Gowrie conspiracy. The
evidences now adduced were--on the surface at any rate, although, perhaps,
as many critics still think, on the surface only,--circumstantial and
strong. The prosecution was therefore keenly pressed, and the reluctance
of some of the judges overcome. A jocular jurist-commentator on these
post-mortem trials, has remarked[55] that the bones of a traitor could
neither plead defences, nor cross-question witnesses. But in the dawn of
the seventeenth century they could turn the sympathy of the court against
the charge, as it appears they did in Logan's case. The proofs, however,
looked overwhelming, and the forfeiture was carried without a dissenting
voice from the bench--from the bench, because it was, as all Scots
treason-trials then were, a trial by judges only, not by judge and jury.
Logan's memory was declared extinct and abolished, and his possessions
forfeited. The judgment, however, wreaked no vengeance on the exhumed
remains. Humanity was asserting itself even in the trial of the dead, and
that institution itself was doomed. Although in disuse ever after, it did
not disappear from the theory of law until 1708, when the act 7 Anne,
chapter 21, prescribing jury-trial for treason, assimilated the Scots law
on the subject to that of England, and thus brought to an unregretted end
one of the most gruesome of legal traditions.
Island Laws.
BY CUMING WALTERS.
A very curious and interesting phase of self-government is that which is
supplied by the independent legal system established in various small
islands in the United Kingdom. It is amusing to notice these little
communities on rocky islets tenaciously preserving their ancient
privileges, and revelling in the knowledge that they have a code of their
own by no means in harmony with the statute law of the country of which
they are an insignificant part. The tribunals and the legal processes in
the Channel Islands, in the Scilly Islands, in the Isle of Man, and even
in some of the smaller islands round the English coast, differ entirely
from those established in the motherland; and any suggestion of change is
warmly resented. In many cases it has not, of course, been worth while to
insist on reform, inasmuch as the islands are inhabited only by a few
families, who may be left in peace to settle their own differences if any
occur.
There are a great many scattered islets about the sinuous line of Irish
coast, very few of which are ever visited by strangers. The conditions of
life in these isolated places are seldom investigated, and yet we find
there are some remarkable survivals of old customs and relics of ancient
laws. The people are independent, because they feel they are totally
separated from the mainland, and possess neither the means nor the desire
to cross over to it. They are in many respects a race by themselves, and
their attachment to their little homes of rock is such that one of their
severest punishments for offenders is to transport them to Ireland. Such
an island is Raghlin, or Rathlin, six miles distant from the north-west of
Antrim, but might be six hundred miles, judging by the slight intercourse
the handful of inhabitants has with the larger world. Another such island
is Tory, ten miles from the Donegal coast, where up to a few years ago the
dwellers were unacquainted with any other law than that of the Brehon
code. A visitor in 1834 found them choosing their own judge, and yielding
ready obedience to mandates "issued from a throne of turf." In this case,
and in the case of the Cape Clear islanders, it was found that the threat
of banishment to the mainland was severe enough to prevent serious crime.
These feelings probably have been modified in more recent times, yet the
intensity of the attachment of islanders to their native rock is one of
the ineradicable characteristics which account for the sturdy independence
manifested in their laws and customs. Their little homes are miniature
worlds which they prefer to govern themselves in their own way. We may
take the Scillies as a favourable example, where the natives cling to the
system of civil government by twelve principal inhabitants forming a Court
presided over by a military officer. The Court is held every month, and it
has jurisdiction in civil suits and minor causes. The Sheriff for Cornwall
has, or, at all events, had, no jurisdiction in the islands, though
persons prosecuted for felonies (which are extremely rare) have to be
relegated to the Assizes at Launceston.
The patriarchal system has always been much in evidence in the small
Scotch islands, which, for the most part, are the possessions of the
descendants of feudal chieftains. Dr. Johnson adverted to this fact on the
occasion of his famous journey in the North:--"Many of the smaller islands
have no legal officers within them. I once asked, if a crime should be
committed, by what authority the offender could be seized, and was told
that the laird would exert his right; a right which he must now usurp, but
which merely necessity must vindicate, and which is therefore yet
exercised in lower degrees by some of the proprietors when legal process
cannot be obtained." But after observing how the system operated, Dr.
Johnson freely admitted that when the lairds were men of knowledge and
virtue, the convenience of a domestic judicature was great. Owing to the
remoteness of some of the islands and the difficulty of gaining access to
others, it was scarcely possible to bring them under the common law, and
we find that in some instances the proprietors were allowed to act as
magistrates by the Lord-Lieutenant's commission. Some of the old lairds
had a very effective but unjudicial method of enforcing their laws. Lord
Seaforth, High Chief of Kintail, was anxious to abolish a very odious
custom of woman-servitude which prevailed in the island of Lewis. The men
were wont to use the women as cattle, compelling them to draw boats like
horses, and, among other things, to carry men across the deep and
dangerous fords on their backs. This practice greatly disgusted Lord
Seaforth, who found, however, that it was one particularly hard to check.
He arrived one day on horseback at a stream which a peasant was
contentedly crossing, mounted on a woman's shoulders. When the middle of
the stream was reached, the laird urged his horse forward, and came up
with the couple, when by vigorously laying his whip about the back of the
man, he compelled him to dismount, and wade as best he could to the
opposite bank. This practical indication of the laird's wishes aided
considerably in producing a change.
The Scotch islanders are a law-abiding people, and patriarchal government
sufficed. It was recorded of the inhabitants of Skye that, during a period
of unusual distress and semi-starvation, not a single sheep was stolen. So
keen is the sense of propriety in that island that a whole family has been
known to slink away, unable to bear the disgrace brought upon them by an
individual delinquent. Orkney and Shetland once possessed all the
characteristics of a separate kingdom, the laws of no other countries
being imposed upon them. There was none to dispute the laird's right, and
legal administration was entirely in his hands, except for the period that
the islands were placed under episcopal rule. It is worth noting that the
most famous of the governing bishops, Robert Reid (_tempus_ 1540), also
filled the high office of President of the Court of Session at Edinburgh,
and he and his successors are said to have ruled with conspicuous mildness
and equity.
We may now turn to one or two English islands before devoting attention to
the most important examples of all--those supplied by the Isle of Man and
the Channel Islands. The Isle of Wight is only regarded as "separate" from
Hampshire for one legal purpose, so far as I have been able to ascertain.
It is part of the "county of Southampton" for all purposes except the
land-tax payment: for this it has a separate liability. But the land-tax
divisions are the most irregular, and the least uniform of any legal
divisions in the country, and it is therefore not surprising that the Isle
of Wight should in this respect be subject to peculiar usage. Purbeck is
one of those "isles" in England which now depend more upon tradition for
their designation, than natural accordance with the geographical
definition. What is remarkable is that these "isles"--such as the Isle of
Purbeck, the Isle of Ely, the Isle of Glastonbury, and the Isle of
Meare--nearly all have certain well-established and recognised laws of
their own for the little communities which dwell within their borders. The
quarrymen of Purbeck consider themselves a race apart, and their guild is
one of the closest and strictest character. Their homage is paid
exclusively to the lord of the manor, and the "Marblers" claim to have
received a special charter from King Edward. On Shrove Tuesday they elect
their officers, and celebrate the occasion by kicking a football round the
boundaries. One ancient custom observed on these occasions is to carry a
pound of pepper to the lord of the manor, as an acknowledgement to him in
respect to a "right of way." Until comparatively recent times the
government of the island was patriarchal in character. The Isle of
Glastonbury had its "House of Twelve Hides" for the trial of petty cases
in the locality, and tradition reports that unusually large dungeons were
prepared for the immuring of those who offended in the renowned Avalonian
isle.
The Isle of Man, when subject to the Kings of Norway, was a subordinate
feudatory kingdom. It afterwards came under the dominion of the English
Kings, John and Henry III., but passed afterwards to the Scotch. Henry IV.
eventually claimed the little isle, and disposed of it to the Earl of
Northumberland, but upon this famous nobleman's attainder it went to Sir
John de Stanley. Its government seemed destined to be unsettled, however,
and though the title of king was renounced by the possessors of the land,
they maintained supreme and sovereign authority as to legal process. In
the Isle of Man no English writ could be served, and as a result it became
infested with smugglers and outlaws. This was unsatisfactory, and, in
1765, the interest of the proprietor was purchased, in order that the
island should be subject to the regulations of the British excise and
customs.
According to Blackstone, than whom there could be no greater authority,
the Isle of Man is "a distinct territory from England, and is not governed
by our laws; neither doth an Act of Parliament extend to it unless it be
particularly named therein." It is consequently a convenient refuge for
debtors and outlaws, while its own roundabout and antiquated methods of
procedure have been found to favour the criminal rather than to aid
prosecutors and complainants. Perhaps this was never more vividly
illustrated than in the recent case of the murderer Cooper, who profited
by the cumbrous and lenient processes of Manx law to the extent of getting
an atrocious crime reduced to manslaughter. The laws have often been
amended. Prior to 1417 they were "locked up in the breasts of the
Deemsters," but Sir John Stanley found that so much injustice was being
done under the pretence of law, that he ordered a promulgation to be made.
But "breast laws" continued to be administered for another two centuries,
until Lord Strange, in 1636, commanded that the Deemsters should "set down
in writing, and certify what these breast laws are." In 1777, and also in
1813, the laws of the island were again amended, and every criminal was
allowed three separate and distinct trials before different bodies. First
the High Bailiff hears his case, then the Deemster and six jurymen, and,
thirdly, if he has been committed for trial, he is brought before the
Governor and the Deemsters. By the time the case gets to the final court
it has usually been "whittled down" to the smallest possible proportions,
and doubts have often been raised whether justice is not marred by
misplaced and unwarranted lenity. Another strange practice is that the
Manx advocates combine the parts of barrister and attorney. The law is
hard upon debtors, who can be lodged as prisoners in Castle Rushen, if it
is suspected that they are about to leave the island; but there are no
County Courts. On the other hand, there are Courts of Law of almost
bewildering variety--the Chancery Court, the Admiralty, the General Gaol
Delivery, the Exchequer, the Ecclesiastical, the Common Law, the two
Deemsters' Courts for the north and south of the island, the Seneschal's
Court, the Consistorial, the Licensing, and the High Bailiff's. Each
sheading, or subdivision, has its own coroner or sheriff, who can appoint
a "lockman" as his deputy; and each parish (there are seventeen) has its
own captain and a "sumner," whose duty in old times was to keep order in
church and "beat all the doggs." Manx law had, and perhaps to some extent
still has, a similar reputation either for allowing criminals in the
island to escape easily, or for permitting English criminals to remain
unpunished; hence the old ribald verse which represents the Devil
singing--
"That little spot I cannot spare,
For all my choicest friends are there."
The Deemster's oath is a curiosity in itself:--"I do swear that I will
execute the laws of the isle justly betwixt party and party as
indifferently as the herring's backbone doth lie in the midst of the
fish." Formerly the elective House of Keys possessed judicial as well as
legislative functions, but this power was taken from it by the Act of
1866. Laws are initiated in the Council and the Tynwald Court, which
promulgates them, consists of the members of the Council, and the House of
Keys, who unite for the occasion. Tynwald Day as described by Mr. Hall
Caine is an interesting, historic, but not an impressive ceremony. A
thousand years ago the Norsemen established a form of government on the
island, and every fifth of July the Manxman has his open-air Parliament
for the promulgation of laws. But it is a gala day rather than a day of
business. "Reluctantly I admit," writes Mr. Hall Caine, "that the
proceedings were, in themselves, long, tiresome, ineffectual, formless,
unimpressive, and unpicturesque. The senior Deemster, the amiable and
venerable Sir Wm. Drinkwater, read the titles of the new laws in English.
Then the coroner of the premier sheading, Glenfaba, recited the same
titles in Manx. Hardly anybody heard them; hardly anybody listened."
The Channel Islands were part of the Duchy of Normandy, and their laws are
mostly the ducal customs as set forth in an ancient book known as "Le
Grand Coustumier." Acts of the English Parliament do not apply to these
Islands unless specifically mentioned, and all causes are determined by
their own courts and officers. In Mr. Ansted's standard work on the
Channel Islands (revised and edited by E. Toulmin Nicolle, 1893), a long
chapter is devoted to the whole subject, and it is so complete and well
expressed that I venture without much alteration of phraseology to
summarise its leading points. Jersey and Guernsey have diverged greatly
from each other in their legal customs, and it is also curious to find
that each of the smaller islands possesses its own particular
constitutions and courts. The rights and customs of the "States," which
are an outcome of the mediaeval Royal Court, have constantly undergone
modification and have been remodelled, but they retain many of the ancient
characteristics. The Bailiff (_Bailli_), or chief magistrate, is the first
civil officer in each island, and usually retains his office for life. He
presides at the Royal Court, takes the opinions of the elected Jurats, and
when their voices are equal has a casting vote both in civil and criminal
cases. The Bailiff is not required either in Jersey or Guernsey to have
had a legal education. He is appointed by the Crown, but has usually held
some position at the island bar. Formerly the advocates practising in the
court of Jersey were nominated by the Bailiff, and were limited to six in
number. In 1860, however, the bar was thrown open to every British subject
who had been ten years resident in the island, and who was qualified by
reason of being a member of the English bar, having taken a law degree at
a French University, and having passed an examination in the island. In
Guernsey the advocates are also notaries, and frequently hold agencies.
The judicial and legislative powers in Jersey are to some extent separate,
but in Guernsey they are intimately associated--a fact which accounts for
much of the difference in custom in the two islands.
The ancient Norman law contained in "Le Grand Coustumier" dates back to
the thirteenth century, was badly revised in the time of Queen Elizabeth,
and became the Code. Trial by jury was established in 1786, and the laws
on the subject have undergone considerable change. There is a committing
magistrate, and the trial takes place at the Criminal Assizes of which
there are six in the year. The jury numbers twenty-four; if twenty agree,
the verdict is taken; if less than twenty the prisoner is set free. Minor
offences are referred to a court of Correctional Police presided over by a
magistrate who is independent of the Royal Court. The same magistrate
presides over the court for the recovery of small debts, and there is no
appeal from his decision. Then there are subsidiary courts for various
police purposes, while the Court of Heritage entertains suits regarding
real estate. The arbitrary operation of these Courts may have very evil
results, especially for strangers who are unlearned in the peculiarities
of Jersey law. I find a striking example of this in a magazine of June
15th, 1861, in which a hard experience is detailed with comments which
appear to be fully justified by the circumstances. The writer says:--
"Before leaving England I had had a serious quarrel with a former friend
and medical attendant, and no long time elapsed after our arrival in the
island, before this gentleman sent me in a bill of monstrous
proportions--a true 'compte d'apothecaire' as the French express it. At
that time I was quite ignorant of the singular constitution of Jersey
law, and how it placed me in the power of any man who chose to sue me
whether I owed him money or not. I wrote to the doctor, refusing to pay
the full amount of his claim, and referring him to a solicitor in London.
He was, however, better acquainted with the Jersey law than myself, as the
result will show. Here, before proceeding with my story, I will enter into
some explanation of the law of debtor and creditor as it exists in Jersey.
This law enables the creditor to enforce his demands summarily, depriving
the party sued of his liberty, and leaving him in gaol till the costs of
his imprisonment have swelled the amount to be paid: and further,
supposing the defendant ultimately gains his suit, and proves his
non-liability, no damages for false imprisonment are obtainable. The law
leaves him no remedy, for the plaintiff makes no affidavit; and a simple
letter from England, requesting a Jersey advocate to enforce payment of a
claim, is enough to cast the defendant at once into prison, prior to any
judicial investigation into the merits of his case.