Chapter VIII: Appendix: Great Precedence Question 287 (7)

“By the English law as it stood before the passing of the
Act of 6 and 7 Will. IV., c. 85, no marriage could be lawfully
solemnized (except where both the parties were Quakers or Jews
respectively) in any other place than a church or public chapel
wherein banns might be published, unless by special licence from
the Archbishop of Canterbury. This law was enforced by severe
penalties; and if any persons intermarried without licence from
a competent authority, or without the previous publication
of banns, the marriage was null and void to all intents and
purposes. Thus all persons (with the exception of Jews and
Quakers), whether conforming to the Church of England or not,
were compelled to resort to the Established Church in order to
have their marriages lawfully solemnized. The boon conferred upon
Roman Catholics and Dissenters generally by the amended law of
1836, which enables them to marry in their own places of worship
and according to their own forms, may well be appreciated. The
Act of 1856, besides abolishing the objectionable practice of
reading notices of marriage before boards of guardians, has
sanctioned marriage out of the district in the ‘usual place of
worship’ of one of the parties, and reduced the interval between
the giving of notice of marriage by licence and the grant of the
licence from seven days to one clear day.”

_The Law of Copyright._

The _Publishers’ Circular_ gives the following summary of facts respecting the Copyright Laws:--In our own country, the copyright lasts 42 years absolutely for the author’s life, and seven years after his death. In Greece and in Sardinia it lasts only 15 years from the date of publication. In the Roman States it extends to 12 years after the author’s death. In Russia it lasts for 25 years after the author’s death, and for ten years more if a new edition has been published in the last five years of the first term. In Belgium and Sweden it lasts 20 years after the author’s death, with a provision in Sweden, that, should the representative of the author neglect to continue the publication, the copyright falls to the State. In France it lasts for the benefit of children or widow (that is, to the widow if she be what is called in France _en communauté de biens_, a peculiar arrangement in French marriage settlements, which establishes between husband and wife a perfect community in each other’s property) 30 years after the author’s death, but to other representatives only 10 years. In Spain it lasts 50 years, reckoning from the author’s death. In Austria, Bavaria, Portugal, Prussia, Saxony, the Kingdom of the Two Sicilies, Wurtemberg, and the States of the Germanic Confederation, it lasts 30 years from the author’s death, to all his heirs and assigns without distinction; and in Denmark, so recently as 1858, it lasted an indefinite period, provided the work was kept in print; now, however, it is restricted to a period of 30 years after the author’s death, with a provision that republication by others is permitted when five years have elapsed in which a work has been out of print. In the United States, copyright lasts for 28 years, and an extension of 14 years granted to the author if he lives, or to his widow, children, and grandchildren. With regard to lectures, sermons, &c., the law of France appears to be that professors and preachers have the sole right of reproducing their lectures and sermons in print; but that advocates and political speakers, while they alone have the right to publish their speeches in a collective or separate form, cannot prevent their being published in the journals of the time as news.

_Holding over after Lease._

The doctrine is well established--viz., that where a tenant by lease holds over after the determination of the term, and pays rent, he becomes a tenant from year to year, _under all the conditions of the expired lease consistent with such a tenancy_. Baron Watson remarks--“It is important that no doubt should be thrown upon a question of such very general importance, as a great many of the houses in London and throughout the country are occupied by tenants holding over.”

_Abolition of the Hop Duty._

The 15th September, 1862, dates the freedom of English Hops from Excise impost, and the abolition of Customs duties upon foreign Hops. Time alone can show the effect so serious a change will have on the average prices of a produce of increasing importance throughout the world. The general opinion is that under perfect freedom of trade hops will vary in price in each district of production only in proportion to their quality and the cost of transport; and that consumers will find prices more uniformly even than has hitherto been known, since the simultaneous failure in the crop at home and abroad is beyond probability.

This tax was first imposed by Mr. Harley in the year 1711; and its removal will make the hopgrower in future free from those heavy losses which the Duty inflicted on him in years of large crops and small prices. Hopgrowing has now become a simple farming operation, left to natural causes. It might be that, owing to the costly nature of the production and the precarious nature of the crop, it would always remain a somewhat more speculative branch of business than any other branch of farming. It is, however, thought that the supply of hops will be more abundant, and, above all, more steady and uniform from year to year. The consequence will be that the beer we drink will be more wholesome. Burton, in his _Anatomy of Melancholy_, says: “Beer made without hops is productive of heaviness and melancholy; but that well hopped is an antidote to it.”

_Customs of Gavelkind._

The well-known treatise, entitled “The Common Law of Kent; or the Customs of Gavelkind, with the Decisions concerning Borough-English,” by Thomas Robinson, with additions by J. D. Norwood, comprehends everything relating to the subject, embracing all that is useful in Somner, Tayler, and Lambarde, as well as a full account of both tenure and custumal. The work contains chapters on the etymology and significations of the word Gavelkind; on the antiquity and universality of partible descents in England; on the places out of Kent where the custom of gavelkind may be alleged and maintained; on the manner of pleading the custom, and the difference between that and other counties, and between the general and special customs; on what lands and tenements in Kent are of the nature of gavelkind; of the effect of the alteration of the tenure and of the disgavelling statutes; on the nature of gavelkind in reference to descent and partition, and the remedy for and against parceners by the custom; on the special customs incident to gavelkind lands in Kent, tenancy by the courtesy; of dower, of customary wardship, and of alienation by any infant tenant in gavelkind; the father to the bough and the son to the plough, and the custumal of Kent with precedents. The principal peculiarities which distinguish socage lands subject to the custom of gavelkind from free or common socage are--1. That the lands descend to all males in equal degree, in equal shares. 2. That the husband is tenant by the courtesy of his deceased wife’s lands, whether there were issue born alive or not. 3. That the widow is dowable of one-half instead of the third. 4. That an infant may alien by feoffment at the age of fifteen. 5. That upon a conviction of felony, there is no escheat by reason of corruption of blood; corruption of blood only occurs now in cases of treason, petit treason, and murder--see 54 G. 3, c. 145. These peculiarities do not recommend themselves as possessing so great advantages as to induce us to continue a system of law in Kent different from the rest of England. One of its great disadvantages is the difficulty of deducing the title, on account of the complicated subdivisions of the estate.

_Treasure Trove._

Treasure Trove (from the French _trouver_, to find, _trouvé_, found) is the law by which money, or other treasure, found hidden, is adjudicated to the legal claimant.

In 1863, Mr. F. Peel, (one of the Secretaries to the Treasury,) stated in Parliament:

It was by no means an unreasonable or absurd law that when an
article of gold or silver, belonging to an unknown owner, was
found, it should be held to be the property of the Crown. The
rights of the Crown in that respect were not, however, rigidly
enforced. The articles found were usually returned to the person
who was declared to have the best claim to them; or, if they
were of historical interest, they were deposited in the British
Museum or some local collection, and their intrinsic value was
paid to the finder. What the Treasury desired was to obtain
speedy information of the discovery of any treasure trove. The
Circular which was issued some time ago was intended to instruct
the finders of any treasures how to communicate with the Crown on
the subject.[11] That Circular was subsequently withdrawn because
it laid claim to antiquities which were not exactly treasures and
did not belong to the Crown, and because it directed a reference
to the wrong tribunal in cases of dispute. The draught of another
circular was prepared; but so many difficulties beset the subject
that it was not deemed advisable to issue it. If occasion should
arise for a new order it would of course be made, but there
appeared to be no necessity for one at present.

Sometimes, the right to the property is confirmed by the special conditions of the holding of the property whereon it is found. Thus, at the above date, Lord Palmerston related in Parliament that about two years ago some workmen, when digging a drain on one of his farms, found a gold torque, which his Lordship purchased of the man who discovered it, the value being about 30_l._ Lord Palmerston, however, had an investigation made of the original grant of the farm several centuries ago, and ascertained that it conferred on the grantee all the treasure-trove on the property; wherefore his Lordship felt entitled to keep the relic in question.

In January, 1863, eleven pounds’ weight of ancient gold ornaments were ploughed up in the neighbourhood of Hastings, and were sold as old brass, to a man who had been a Californian gold-digger, and recognised the metal as solid gold. He was taken into custody, but discharged, the magistrates having no jurisdiction in the matter, the power of making such an investigation being vested, according to an old statute, (4th Edward I.) in the coroner; the jury returning a verdict that the gold, (value about 530_l._) the owner or owners not being known, was the property of the Queen, and that the persons accused had concealed the finding from the Queen and the coroner. This discovery of gold ornaments, and their almost total destruction, render it desirable that the law of Treasure-trove should be made clear to popular comprehension: that if it is not just, as seems to be the common impression, it should be amended, and the practice of the Crown, in exercising its conventional rights, defined. At any rate, so long as finders do not know that they will receive full value for discoveries, and have not confidence in their appraisement, it is in vain to expect country-folk will yield Treasure-trove to an authority they contemn. In some parts a belief is held that such discoveries entail condign punishment upon the finders: it was formerly a capital offence; it is now a misdemeanour, punishable by fine and imprisonment.

It is difficult to make the peasantry comprehend manorial rights. A man who finds a treasure in his own ground, and that treasure one which can have no living owner, naturally looks on himself as its rightful possessor. He has probably never heard of King Edward’s law of Treasure-trove, and a natural sense of justice does not guide him rightly in the matter. If a liberal reward were given--nearly the _metal_ value of the _trouvaille_--it is quite possible that we might have become possessed of many precious relics which now are broken up and consigned to the melting-pot.

In France, the right is more practically understood. Thus, in July, 1863, a pot of louis-d’ors was found in the Rue Lafayette, in Paris, when the following adjustment was made.

One of the labourers while at work, struck his pick on to an
earthen jar, which broke, and out of which rolled several pieces
of gold. The other workmen hearing the sound, rushed round the
spot, probably to obtain a share of the treasure, when the latter
cried out “Stop! Form a ring around me, and then let no one
move.” The others obeyed. He then quietly picked up the pieces
of gold, which he placed in his hat, and, taking up the broken
jar which contained the remainder, he stood in the midst of the
circle, and said, “Now call a sergent-de-ville to accompany me
to the nearest police-office, where I will deposit the money.”
This was done, and the prize was found to consist of 978 gold
louis-d’or of twenty-four livres each, bearing the effigies of
Louis XV. and XVI., the whole amounting to more than 23,000f. The
whole was forwarded to the Prefecture of Police, where it was to
remain during the inquiry to discover the legitimate owners of
the property. It is only after that has been done that the share,
attributed by law to the finder of a treasure, will be paid to
the lucky workman.

_Principal and Agent._

There is a well-known case involving this point, in which the late Lord Abinger differed from the rest of the Court of Exchequer: a plaintiff had employed an agent to let a house for him, and the defendant asked the agent “if there was any objection to the house;” to which the agent in perfect good faith answered, there was not. It turned out, however, that the adjoining premises were of a disreputable character, of which the plaintiff was aware, although his agent was not. The defendant, on the discovery of the objection, refused to fulfil his written contract to take the house; and the question was, whether he was liable for a breach of the agreement. Lord Abinger thought he was not, but the rest of the Court thought he was, and so judgment was given for the plaintiff. Upon merely technical grounds, perhaps, the majority of the learned Barons were right; but no one can read the masterly opinion of Lord Abinger without feeling that the law _ought to be_ as he laid it down, and on the broad and simple ground that in such a case the knowledge of the principal should be held to be the knowledge of the agent.

_Legal Hints._

Although no book ever was or ever can be written to enable a man to dispense with the assistance of a lawyer in cases where a knowledge of the law is practically required, attention to certain hints may save him from many a scrape. Of this kind are the following from Lord St. Leonards’s _Handy-Book_: You should be cautious whom you employ as an auctioneer, for any loss by his insolvency would fall upon you; he is your agent. We may add, however, that he is the agent of both parties, buyer and seller; and for that reason his signature satisfies the Statute of Frauds, and binds both. Again, you may employ _one_ person to bid for you at an auction when you sell property, to prevent its going beneath its value; but you must not employ _more than one_, for that would be considered unfair puffing. Never bid for a leasehold estate clogged with the condition that the production of a receipt for the last half-year’s rent shall be accepted as proof that all the lessee’s covenants were performed up to that period; for there may have been a prior breach of covenant, and the landlord may not have waived his right of entry for the forfeiture. Do not take possession of an estate until objections to the title are removed, for such a step would in some cases be held to be an acceptance of the title. Before you enter an auction-room make up your mind as to price, and do not be led away by the persuasions of the auctioneer, who is the agent of the seller, or the biddings of others. Do not sign a contract tendered to you by the auctioneer, unless a reciprocal contract is signed and delivered to you at the same time by him. In writing about the sale or purchase of an estate, you should always cautiously declare your offer not to be final, lest the other party should, by accepting the terms you mention in your letter, not intending them to be final, entrap you into a binding contract. Mind your fire insurances. Very few policies against fire, says Lord St. Leonards, are so framed as to render the company legally liable. If you have added an Arnot’s stove, or made any other important change in your mode of heating your house since your policy, you should call upon the Company to admit the validity of your policy by an endorsement on it.

_Vitiating a Sale._

It is rather startling to hear an ex-Lord Chancellor saying, “Thus I have told you what truths you must disclose. I shall now tell you what falsehoods you _may_ utter in regard to your estate.” Of course it is not meant that morally any falsehood may be told, but only that there are some which do not, at Law or in Equity, vitiate the contract of sale. And it is curious to see the distinctions taken in these falsehoods. They remind us of the difference in Roman Catholic theology between venial and mortal sins. Thus, you may falsely praise, that is, _puff_, your property. You may describe it as uncommonly rich water-meadow, although it is imperfectly watered. In selling an advowson you may falsely state that an avoidance of the living is likely to occur soon. You may say, as a mere puff, that your house is fit for a respectable family; but you may not say, in answer to inquiries, contrary to the fact, that the house is not damp. And you must disclose a right of sporting or of common over your estate, or a right to dig mines under it. The reason of such distinctions as given by the law--_valeat quantum_--is, that some statements are cautions to purchasers to make inquiries for themselves, and that concealments, to be material, must be of something that the party concealing is bound to state. Although Lord St. Leonards (in his _Handy-Book of Property Law_) does not allude to the point, we might, had we space, while upon this subject, enlighten our readers by a set of cases in which the law relating to bugs is elaborately laid down, and explain to them in what instances the presence of these domestic nuisances in inconvenient numbers does or does not affect a contract for taking a house. But we must be content to refer them to the leading authorities in the pleasant volumes of Meeson and Welsby, where they will find the law fully expounded.--_Saturday Review._

_Law of Gardens._

Some persons, when leaving a place, finding they could not remove the trees and shrubs, have them cut down; but they were actionable, for the law prohibits waste with malevolent intentions. The decision given in the case of Buckland _v._ Butterfield establishes this point; for “a tenant is liable to pay for the waste, if he cuts down or destroys,” &c. And it has also been decided by Lord Denman, Mr. Justice Littledale, and Mr. Justice Parke, that a tenant could not remove a border of box, planted in the garden by himself; but that it belonged to the landlord, in the absence of any agreement to the contrary. In the course of the argument the counsel for the tenant asked, “Could not the tenant remove flowers which he had planted in the ground?” Mr. Justice Littledale instantly said, “No.”

_Giving a Servant a Character._

The giving a Character to a Servant is one of the most ordinary communications which a member of society is called on to make; and, as the learned Mr. Starkie observes, is a duty of great importance to the interests of the public; and in respect of that duty a person offends grievously against the interests of the community in giving a good character where it is not deserved, or against justice and humanity in either injuriously refusing to give a character, or in designedly misrepresenting “one to the detriment of the individual.”

The following Rules are suggested for the consideration of masters and mistresses not acquainted with the law in such cases:

Rule 1. No magistrate has any jurisdiction touching the character
of a domestic servant; and the common threat of a master or
mistress being summoned for not giving a character is absurd.

Rule 2. It has been clearly decided that a character honestly
and _bonâ fide_ given by a master or mistress to any person
making the usual inquiry, is a privileged communication; and
unless inconsistent with truth, or actual malice can be proved by
evidence, no damages can be sustained. But it must be carefully
borne in mind that, however truly or honestly the character may
be given, an action at law can be brought against the master or
mistress, and the ladies of the family put to the anxiety of
appearing in court, as well as the lady to whom the character was
given. And, although the servant may be immediately defeated,
and the case stopped by the judge, you will find yourself some
fifty or sixty pounds out of pocket by your victory.

Rule 3. The only safe course, when a master or mistress cannot in
sincerity and truth recommend a servant, is to decline answering
any questions on the subject, and the following form of written
answer may prove useful: “Mrs. A. presents her compliments to
Mrs. B., and in reply to her note requesting the character of Ann
C----, trusts she will kindly excuse Mrs. A. declining to answer
any questions on the subject.” Address and date. A copy should be
kept.

In the case of Carrol _v._ Bird, the courts of law have decided that neither master nor mistress is bound to give a character, and that no action will lie against them for refusing. The cases also of Taylor _v._ Hawkins are well worthy of notice. It must, however, be repeated, that both justice and humanity claim from a master and mistress their kindest care and consideration for the character of their servants, more particularly female servants; but it is confidently believed that if the above rules were better known and more generally acted on, all good and honest servants would be gainers.--_Times_, April 19, 1860.

It may be useful to mention here that in the Court of Exchequer, a cook, formerly in the service of Col. Sibthorp, M.P., brought an action against him for an alleged libel in a letter to a lady who had applied to him for the character of the cook, but which was not satisfactory to the lady. It was submitted the Colonel’s letter being proved a privileged communication, the action could not be maintained without proof of express malice on the part of the defendant, of which there was not the slightest evidence; the judge concurred in this view, and the plaintiff was accordingly nonsuited.

_Deodands._

Within memory, when an accident occurred, it was customary to inflict a kind of fine or penalty thus: supposing a boy was run over by a vehicle, the verdict was recorded “Accidental death, with a deodand of one shilling upon the cart.” In the _Liber Albus_ (27 Henry III.), we read that a man fell from a boat into the Thames, and was drowned; no one was held in suspicion as to the same; the judgment was “Misadventure,” and the value of the boat, 4s. 7d., was exacted as a deodand, payable to the king. [See _Things not generally known_, First Series, p. 173.] The _deodandum_ (Deo dandum, given to God) of our jurisprudence may be reckoned among the mysterious things of history. The deodand is philanthropic, it is religious, and it is so far clerical, that its value, when levied, was handed over to the clergy. Fleta, a commentator on English law, _temp._ Edward I., says that the deodand is to be sold, and the price distributed to the poor, for the soul of the king, his ancestors, and all faithful people departed this life. Yet it was not _ecclesiastical_: it cannot be recovered by suit in the courts of canon law, but only in the courts of the king’s coroner, either for counties, or for all England. This ancient custom was abolished by act 9th and 10th Vict., cap. 62, which enacts that subsequent to September 1st, 1846, there shall be no forfeiture of chattels in respect of homicide.

_Arrest of the Body after Death._

It was long erroneously believed that the body of a debtor might be taken in execution, in this country, after his or her death. Such, however, was the practice in Prussia, till its abolition by the Code Frédérique.

The above idle notion we remember to have been repeated in connexion with the pecuniary embarrassments of Sheridan, at the time of his death, in 1816. It may have been fostered through the mis-reading of an account of a sheriff’s officer arresting the dying man in his bed; “he would have carried him off in his blankets, had not Dr. Bain assured him it was too probable his prisoner would expire on the way to the lock-up house!” After Sheridan’s death, the removal of his remains from Savile-row to Mr. Peter Moore’s house, in George-street, Westminster, to be near the Abbey for interment, more probably led to the story that the body was removed to escape arrest.

_The Duty of making a Will._

When in 1859, Lord Northwick’s collection of pictures was about to be disposed of by auction, at Thirlestane-house, Cheltenham, we paid a visit to the gallery, and great was our regret at the thought of the dispersion of so extensive a collection, which had long been the pride of Cheltenham, and had been to that thriving town what the National Gallery is to the metropolis. Lord Northwick had collected these pictures during a life extending for nearly a quarter of a century beyond the average term allotted to man. Until within a year or two of Lord Northwick’s death, in 1859, he spent much of his time every day among his pictures, and took great delight in pointing out their beauties to any intelligent visitor. The collection, and another at Campden, were swept away by sale, which realized nearly 100,000_l._ Upon our visit to the Thirlestane Gallery, much as we were gratified with the pictures, we became impressed with the futility of devoting a long life to their collection, without providing against their dispersion; and subsequently to the sale, there appeared in the _Morning Post_ the following remarks, which more fully bespeak our own feelings upon the subject:

We contemplate the dispersion of these pictures with two painful
reflections, which, by way of caution or suggestion to other
collectors, we wish to impress upon the public. The first is
the comparative uselessness of collecting works of art without
some provision for their preservation. The purpose of a life is
dissipated, and a new illustration is given to the preacher’s
moral, “_Vanitas vanitatis est omnia vanitas_.” Undoubtedly, he
who collects treasures of art in the way Lord Northwick did,
and gives the public the benefit of them during his life, does
a great service in his day and generation; but it is impossible
not to remember how much greater a service he renders who not
only forms a collection but provides for its perpetuity. In the
next place, see the duty of making a Will. These collections are
dispersed because they form a portion of the personalty of the
deceased, and there being no instructions as to their disposal,
there is no choice but to sell them, and appropriate their
proceeds among the heirs-at-law. Next to the mischief of making
an unfair Will is that of making none at all. Had Lord Northwick
ordered by Will the sale of his pictures, however disappointed
the world might have been, it would have been felt that he had a
right to do as he liked. But dying intestate, the sale follows
as a matter of course, and the results of a long life and large
fortune devoted to works of art are just nowhere. A gallery of
pictures left to a family or to the public is an offering at
the shrine of art; but, sold by auction, and dispersed among
innumerable private purchasers, is sheer vanity and labour lost.

_Don’t make your own Will:_

Lord St. Leonards, in his _Handy-Book of Property Law_, says: “I am somewhat unwilling to give you any instructions for making your Will, without the assistance of your professional adviser; and I would particularly warn you against the use of printed forms, which have misled many men. They are as dangerous as the country schoolmaster or the vestry-clerk. It is quite shocking to reflect upon the litigation which has been occasioned by men making their own Wills or employing incompetent persons to do so. To save a few guineas in their lifetime, men leave behind them a Will which it may cost hundreds of pounds to have expounded by the courts before the various claimants will desist from litigation. Looking at this as a simple money transaction, lawyers might well be in despair if every man’s Will were prepared by a competent person. To put off making your Will until the hand of death is upon you, evinces either cowardice or a shameful neglect of your temporal concerns. Lest, however, such a moment should arrive, I must arm you in some measure against it.

“If you wish to tie up your property in your family you really must not make your own will. It were better to die without a will, than to make one which will waste your estate in litigation to discover its meaning. The words “children,” “issue,” “heirs of the body,” or “heirs,” sometimes operate to give the parent the entire disposition of the estate, although the testator did not mean any such thing. They are seldom used by a man who makes his own will without leading to a lawsuit. And now an operation has been given to like words by the new statute, which I could not explain to you without you possessed more knowledge of law than I give you credit for. It were useless for me to show how to make a strict settlement of your property, and therefore I will not try. I could, without difficulty, run over the names of many judges and lawyers of note, whose wills made by themselves have been set aside, or construed so as to defeat every intention which they ever had. It is not even a profound knowledge of law which will capacitate a man to make his own will, unless he has been in the habit of making the wills of others. Besides, notwithstanding that fees are purely honorary, yet it is almost proverbial that a lawyer never does anything well for which he is not fee’d. Lord Mansfield told a story of himself, that feeling this influence, he once, when about to attend on some professional business of his own, took several guineas out of his purse and put them into his waistcoat pocket, as a fee for his labour.”

_Bridewell._

This name, from a well dedicated to St. Bridget, or St. Bride, between Fleet-street and the Thames, was given to a palace built there, and which, soon after, became a House of Correction, in the reign of Queen Mary. Hence, places of confinement in other parts, in which employment and penitentiary amendment were leading objects, were called _Bridewells_.

The greater part of the City of London Bridewell was taken down
in 1863; committals are now made to the City prison at Holloway,
but refractory City apprentices are still committed to Bridewell
by the Chamberlain, this jurisdiction being preserved by the
Court of Chancery. The number of committals rarely exceeds 25
annually, nevertheless the power of committal which the present
Chamberlain has most praiseworthily asserted and successfully
maintains, acts as a terror to evil-doers, and keeps in restraint
3000 of these lads of the City.

By a document lately discovered in the State-Paper Office, it
appears that in the Bridewell of London were imprisoned the
members of the Congregational Church first formed after the
accession of Elizabeth; they were committed to the custody of the
gaoler, May 20, 1567.

_Cockfighting._

British cocks are mentioned by Cæsar; but the first notice of English cockfighting is by Fitzstephen, in the reign of Henry II.; and it was a fashionable sport from _temp._ Edward III. almost to our time. Henry VIII. added a cockpit to Whitehall Palace, where James I. went to see the sport twice a week. There were also cockpits in Drury-lane, Shoe-lane, Jewin-street, Cripplegate, and “behind Gray’s Inn;” and several lanes, courts, and alleys are named from having been the sites of cockpits. The original name of the _pit_ in our theatres was the _cock-pit_, which seems to imply that cockfighting had been their original destination. One of our oldest London theatres was called the _Cockpit_; this was the Phœnix in Drury-lane, the site of which was Cockpit-alley, now corruptly written Pitt-place. Southwark has several cockpit sites. The cockpit in St. James’s-park, leading from Birdcage-walk into Dartmouth-street, was only taken down in 1816, but had been deserted long before. Howell, in 1657, described “cockfighting, a sport peculiar to the English, and so is bear and bull baitings, there being not such dangerous dogs and cocks anywhere.” Hogarth’s print best illustrates the brutal refinement of the cockfighting of the last century; and Cowper’s “Cockfighter’s Garland,” greatly tended to keep down this modern barbarism, which is punishable by statute. It was, not many years since, greatly indulged in through Staffordshire; and “Wednesbury (Wedgbury) cockings” and their ribald songs were a disgrace to our times.

Cockfighting was, in fact, the great national amusement, particularly in the north of England, and Berwick-upon-Tweed was among the places most celebrated for it. Some ninety years ago, in the north of England, when a cockfighting was about to take place, the parties were in want of an adept in putting on the spurs: a person present was recognised by an acquaintance, who exclaimed, “Here comes a Berwick man; he knows how to do it.” Cockfighting is now legally a misdemeanor; and on the 15th of April, 1857, at the Liverpool Police Court, James Clark, a publican, in Houghton-street, was fined 5_l._ and costs for permitting cockfighting in his house.

In the autumn of 1862, several persons were convicted by the magistrates at Barnsley, for cockfighting, under the Act, which inflicts a fine on any one assisting at a cockfight, _in a place used for the purpose_. This is an absurd condition, and is a blunder of the Act-framer. Now, the _place_ used for the purpose of _this fight_ was an old quarry; but the magistrates held that any place where a cockfight took place was a place used for the purpose, the fact of the fight being the evidence of the use. The case came by appeal before the Court of Queen’s Bench, when the Judges decided, in accordance with a ruled case, there must be some evidence of general use, if on a piece of waste ground, and that one act would only prove the use when it was a place over which a man had some control. The judgment was therefore reversed. At Bradford, within a few days of this decision, William Speight and J. Holroyd were fined 3_l._ each for cruelty in having set gamecocks to fight; twelve other persons, resident in various parts of the Riding, were fined 10s. each.

On June 24th, 1863, before a bench of magistrates at Loughborough, the Marquis of Hastings, and three of his gamekeepers, were charged, on behalf of the Society for the Prevention of Cruelty to Animals, with causing a cock to be cruelly tortured. It was proved in evidence that three weeks before, the Marquis of Hastings had “some good cockfighting” at Donington Hall, _on a Sunday_! They fought six pairs of cocks, six cocks were killed, all had steel spurs on, and the Marquis was one of the persons who put the cocks together to fight; the other persons accused being spectators. Lord Hastings admitted that the fight had taken place, but denied that there had been any cruelty used in the sense of the words of the information. His Lordship was, however, convicted in the penalty of 5_l._, and his three keepers in 2_l._ each.

_Ignorance and Irresponsibility._

Sir John Bowring states that he remembers a murder occurring in Ceylon, and on the murderer being brought to trial, it was found utterly impossible to make him comprehend that he had committed any sin whatever in revenging himself upon one by whom he thought he had been injured. The consequence was that the Judge came to the conclusion that the murderer could not be held responsible for his crime. So ignorant was this man that he could not count up to the number of five, losing himself always at three.

_Ticket-of-Leave Men._

Archbishop Whately, who always handles a practical subject in a masculine way, annihilates the English Ticket-of-leave system with a single sentence:--“What should we think of a right, encouraged by a Secretary of State, to go every day to a menagerie and let out by mere rotation one animal from a cage without inquiring whether he released a monkey or a tiger?” The Archbishop proposes that all sentences beyond fifteen years should be irreversible, except by an Act of Parliament, specifying the names, offences, and previous committals of the prisoners pardoned.

_Cupar and Jedburgh Justice._

It is an odd circumstance that Lord Campbell, to whom both as judge and legislator the law of England owes so much, was born at a place which gives its name, “Cupar justice,” to the peculiar system of law which hangs a man first and tries him afterwards; and that he had his country residence (Hartrigge-house, Roxburghshire) in the neighbourhood of another town which gave the name of “Jedburgh justice” to an equally summary code, the great principle of which is, “Hang all or save all.”

_What is to be done with our Convicts._

Transportation having had a fair and patient trial, and having altogether failed as a punishment, and having no colony fitted and willing to receive the sweepings of our gaols, the alternative to which we are compelled is to keep our convicts at home, and to make the best of them, by making them self-supporting. Or, in the forcible words of the late Mr. Charles Pearson, City Solicitor:

If the honest millions, as they pass through life, can, and do,
during what is recognised as the producing age, not only provide
for their own wants, but create a large surplus, by which the
non-producing classes are supported and the institutions of
society are maintained, it surely ought not to be endured that
any portion of the same race and of the producing age ... should
be permitted to renounce their allegiance to the fundamental law
of their existence, and declare in practice, that by the sweat of
the face of other men, they will eat of earth’s choicest fruits.

The only rational, merciful, and effectual corrective of such
offenders against all laws, human and divine, is to classify and
place them in secure prisons, surrounded by lofty and substantial
walls; to subject them, week by week, to seventy, or at least
sixty, hours of useful and profitable work; to allow them sixty,
or at most seventy, hours for food, rest, cleanliness, and their
other bodily requirements; to give them twenty-eight hours with
means and opportunities for mental and spiritual instruction, and
for the public and private worship of God.... If any Government,
having thus placed at its disposal annually the hundred millions
of hours of confiscated labour, which 30,000 criminals would
yield, cannot make the class not only self-supporting, but
productive of a surplus for the future benefit of those who
produce it, such a Government would be pronounced by men of
business unfit to be at the head of a great manufacturing and
commercial people.

_The Game Laws._

In 1834, Mr. Henry Warburton, in Parliament, denounced the Game Laws as they then existed, in this remarkable illustration:--“I have read in Mariner’s account of the Tonga islands, that there the rats were preserved as game; and, though everybody might eat rats, nobody was allowed to kill them but somebody descended from their gods or their kings. This is the only country and the only case I know of which furnishes anything like a parallel to our game laws.”

_The Pillory._

The Pillory (Fr. _pilori_, probably from Lat. _pila_, a pillar) was a mode of punishment by a public exposure of the offender long used in most countries of Europe. No punishment has been inflicted in so many different ways as that of the pillory. Sometimes the machine was constructed so that several criminals might be pilloried at the same time; but it was commonly capable of holding but one at once. Francis Douce, in his _Illustrations of Shakespeare_, vol. i., p. 146, gives six representations of distinct varieties of this instrument. These varieties are all reducible, however, to the simplest form of the pillory. It consisted of a wooden frame or screen raised on a pillar or post several feet from the ground, and behind which the culprit stood supported on a platform, his head and hands being thrust through holes in the screen, so as to be exposed in front. This screen, in the more complicated forms of the instrument, consisted of a perforated iron circle or _carcan_ (hence the name given to the pillory in French), which secured the hands and heads of several persons at the same time.

The Pillory seems to have existed in England before the Conquest, in the shape of the stretchneck, in which the head only of the criminal was confined; but it was usually constructed for the head and hands. It was used for punishing all sorts of cheats; as, bakers for making bread of light weight; fraudulent com, coal, and cattle dealers; cutters of purses; sellers of sham gold rings; forgers of letters, bonds, and deeds; users of unstamped measures, &c. It was also a Star Chamber punishment; and from the time of Titus Oates to its abolition, the pillory was a common punishment for perjury. The usual places where the pillory was pitched were the Royal Exchange, the Old Bailey, Temple Bar, Lincoln’s-Inn Fields, Charing Cross, New Palace Yard, and Tyburn. About the year 1812, the writer remembers to have seen four men in the pillory, at the north end of Fleet-market (Holborn-bridge). The last person who stood in the pillory in London, was Peter James Bossy, for perjury, in the Old Bailey, June 23, 1830. A pillory is still standing at Coleshill, in Warwickshire; and in an unused chancel of Rye church, Sussex, is a pillory, last used in 1813. The pillory was abolished in Great Britain in 1837, by stat. 1 Vict., c. 23; and in France in 1832.

_Death-Warrants.--Pardons._

Although we occasionally read in the public journals of the issue of the usual Death-warrant for the execution of a criminal, there is (except in the case of a peer of the realm) no such thing as a death-warrant ever signed by the Crown or by any one or more of the officers of the Crown; the only authority for the execution of a criminal convicted of a capital crime being the verbal sentence pronounced upon him in open court, which sentence the Sheriff is bound to take cognizance of and execute without any further authority. It is true that a written calendar of the offences and punishments of the prisoners is made out and signed by the Judge, of which a copy is delivered to the Sheriff; but this is only a memorandum and not an official document, and it is optional with the Judge to sign it or not.

The false notion of there being such a document as a Death-warrant for the execution of a criminal has been fostered to our own time by the frequent reference of writers of note to its existence. Sir Nathaniel Wraxall says of Dr. Dodd’s case in 1777--

“_I have heard_ Lord Sackville recount the circumstances that took place in the council held on the occasion, at which the King assisted. To the firmness of the Lord Chief-Justice, Dodd’s execution was due: for, no sooner had he pronounced his decided opinion that no mercy ought to be extended, than the King, taking up the pen, signed the death-warrant.”

This is flatly contradicted in the _Quarterly Review_, No. 57, as follows:--Lord Sackville never could have told him any such thing--the King _never_ signs any death-warrant--his pleasure on the Recorder’s report is in ordinary cases _verbally_, and in fatal cases _silently_, signified--and it is _always_ guided by the opinion of the legal members of the Privy Council.

This popular error of the Death-warrant is fully explained, from an accredited legal source, in _Things not generally known_, First Series, p. 172.

It is erroneously supposed that the Sovereign can save a life that has been declared forfeit by the law; but the Sovereign’s sign-manual to a pardon is of no effect unless it be countersigned (that is, sanctioned) by a responsible minister.--_J. Doran, F.S.A._; _Last Journals of Horace Walpole_, vol. i.

_Origin of the Judge’s Black Cap._

The practice of our Judges in putting on a Black Cap when they condemn a criminal to death will be found, on consideration, to have a deep and sad significance. Covering the head was in ancient days a sign of mourning. “Haman hastened to his house, mourning and having his head covered.” (Esther vi. 12). In like manner Demosthenes, when insulted by the populace, went home with his head covered. “And David ... wept as he went up, and had his head covered; ... and all the people that was with him covered every man his head, and they went up, weeping as they went up.” (2 Samuel xv. 20.) Darius, too, covered his head on learning the death of his Queen. But among ourselves we find traces of a similar mode of expressing grief at funerals. The mourners had the hood “drawn forward over the head.” (Fosbroke, _Encyc. of Antiq._, p. 951). Indeed, the hood drawn forward thus over the head is still part of the mourning habiliment of women when they follow the corpse. And with this it should be borne in mind that, as far back as the time of Chaucer, the most usual colour of mourning was black. Atropos also, who held the fatal scissors which cut short the life of man, was clothed in black. When, therefore, the Judge puts on the black cap, it is a very significant as well as solemn procedure. He puts on mourning, for he is about to pronounce the forfeit of a life. And, accordingly, the act itself, the putting on of the black cap, is generally understood to be significant. It intimates that the Judge is about to pronounce no merely registered or suppositious sentence; in the very formula of condemnation he has put himself in mourning for the convicted culprit, as for a dead man. The criminal is then left for execution, and, unless mercy exerts its sovereign prerogative, suffers the sentence of the law. The mourning cap expressly indicates his doom.--_Notes and Queries._

_The last English Gibbet._

In March, 1856, the last Gibbet erected in England was demolished by the workmen employed by the contractors making docks for the North-Eastern Railway Company upon the Tyne. The person who was gibbeted at that place was a pitman, convicted at the Durham Midsummer Assizes of 1832. So great was the horror and disgust of all parties with the sight of the body of the poor wretch dangling in chains by the side of a public road, that great gratitude was expressed when the pitmen took it down one dark night. It is a gratifying fact, showing the progress of civilization among the mining population, that, though there have been several strikes among them since 1832, none of those strikes have been marked by a repetition of the fearful acts of violence of that year. At one of the great meetings of pitmen held in the spring of 1832 the Marquis of Londonderry attended on horseback to remonstrate with them. But he had a company of soldiers with him, which were hiding in the valley. This was known to the pitmen, and the pitman that held his horse’s head as he spoke had a loaded pistol up his sleeve, in case the Marquis should wave the soldiers to come up, to blow the Marquis’s brains out. Fortunately, the good feeling and kind heart of the nobleman prevailed, and that emergency did not arise.

_Public Executions._

It is the grossest and most illogical of assumptions to conclude, without a particle of attempted proof, that Public Executions produce only brutalizing effects upon the spectators. It is just as fair to assume that their results even on the spectators are edifying. But these results are only remote and indirect, and comparatively unimportant. Public executions are to be justified on other grounds than their effects on bystanders. They are designed not only to prevent possible murder but to avenge actual murder. They are great retributive acts; they represent and embody the last and most solemn and weightiest impersonation of Eternal Justice. An execution is retaliatory, and is to be defended as such. As we no longer hang men for other crimes than that of murder, life for life becomes a social necessity. Any other punishment than that of death is incommensurate with the crime; and we cannot afford to place the sanctity of human life and the safety of our spoons under the same sanctions.--_Saturday Review._

On the other hand, it is maintained that executions ought never to be made a spectacle for the multitude, who, if they can bear the sight, always regard it as a pastime; nor for the curiosity of those who shudder while they gratify it.

In neither of these views is the effect of a public execution upon the criminal taken into account. This effect, as instanced at the execution of the Mannings for murder, in 1849, was thus forcibly urged by Sir Francis Head:

The merciful object of every punishment which the law inflicts,
is not so much to revenge the past crime as to prevent its
recurrence. Now, Mrs. Manning’s last moments clearly explain, or
rather indisputably prove, the benefit which society practically
derives from a public execution. She had courage enough--as she
sat smiling by his side--to plan the murder of “her best friend;”
to dig his grave; to prepare vitriol and lime to burn his body;
to blow his brains out; to bury him in her own kitchen. She
had resolution enough--almost before he was cold--to go to his
lodgings to obtain his property. Her self-possession before the
police authorities at Edinburgh was unexampled; her hardness of
heart on her trial, as well as in prison, most extraordinary. And
yet this bold, courageous woman, who after the murder, and with
her hands stained with blood, had said to her husband, “I think
no more of what I have done than if I had shot the cat that is
on the wall!” afterwards triumphantly adding, “I have the nerve
of a horse!” did not dare to face the indescribable terrors of
a public execution! She did not fear death in private; on the
contrary, she almost succeeded in gradually, with her own hands,
strangling herself; but her obdurate heart quailed at the idea
of beholding in fearful array before her, the uplifted horrid
faces of the London mob; and accordingly, as her last act, “she
drew from her pocket a black silk handkerchief, requested that
she might be blindfolded with it; and, having a black silk veil
fastened over her head, so as completely to conceal her features
from public gaze, she was conducted in slow and solemn procession
towards the drop;” and as for a few fleeting moments she stood
with bandaged eyes beneath the gibbet, how unanswerably did the
picture mutely expound the terror which the wicked very naturally
have of being publicly hanged before the scum and refuse of
society! “The whistlings--the imitations of Punch--the brutal
jokes and indecent delight of the thieves, low prostitutes,
ruffians, and vagabonds,” so graphically described by Mr. Charles
Dickens, were--by her own showing--not only the most fearful
portion of her sentence, but, under Providence, these coarse
ingredients may possibly have effected that momentary repentance
which the mild but fervent exhortations of the chaplain had
failed to produce.

Many men, neither sentimental nor enthusiastic, nor even philanthropists, however, conclude that though public executions under the present system are deterring, to a certain extent, yet they are exceedingly brutalizing and calculated to harden and deprave the spectators. Sir George Bowyer, M.P., has said: