Chapter II: Part 2

Still stranger was the Lawless Court of the Honour of Raleigh: it was held in the darkness of cockcrow; the steward and the suitors (i.e., those bound to attend the Court) mumbled their words in scarce audible fashion; candles, pens, ink, were all forbidden; for, as the authorities vaguely put it, "they supply that office with a coal." To ensure a punctual attendance, the suitor "forfeits to his lord double his rent every hour he is absent." The learned Camden affirms it was all to punish the aboriginal tenants for a conspiracy hatched in the darkness of the night; again he sees in it a remnant of an old Teutonic custom; and in the end you suspect that he knows as little as yourself.

Then there was the white bull which the tenants of the monks of Bury St Edmunds were bound by their leases to provide, that childless women might present it to the shrine of the martyred king of East Anglia; there was the fine called "thistletake," which the owner of beasts crossing the common, and snatching at the "symbol dear," must pay to the lord of the Manor of Halton; there are the "three clove-gillieflowers" which the tenants of Hame in Surrey shall render at the King's coronation; there are all sorts of minute details as to house-bote and fire-bote, and common of piscary and turbary. One more custom and we have done. In the time of Richard the Lion-heart, Randal Blundeville, Earl of Chester, was on one occasion sore pressed by the Flintshire Welsh. He summoned to his aid his constable of Cheshire, one Roger Lacy, "for his fierceness surnamed Hell." It was fair-time at Chester, and Roger, putting himself at the head of the motley crowd marched off to his relief. The Welsh heard, saw, and bolted, and the grateful earl there and then promulgated a charter granting to Roger and his heirs for ever, "power over all fiddlers, lechers, light ladies (the charter has a briefer and stronger term), and cobblers in Chester." Under Henry VII. we find the then grantee exacting from the minstrels (_inter alia_) "four flagons of wine and a lance," whilst each of the aforesaid ladies must pay fourpence on the feast of St John the Baptist. Under Elizabeth, various acts were aimed at rogues, vagabonds, and sturdy beggars, but always with a saving provision as to this Chester jurisdiction, and in later times the Vagrant Act (17 George II., cap. 5) had a like reservation.

DEODANDS

At one time or other you have looked, one supposes, into that huge collection of curiosities and horrors known as the State Trials. You may possibly have noted the form of indictment in the murder cases; and if so, one odd detail must have impressed you. Having set forth the weapon used by the murderer, the document invariably goes on to estimate its money value: for, having been instrumental in taking human life, it was forfeit to the Crown, and it or its price had to be duly accounted for. It was called a Deodand, but the name was applied to many things besides arms used with malice aforethought. Thus, a man died by misadventure: then was the material cause active or passive? For instance, his end might come because a tree fell on him, or because he fell from a tree, in either case the wood was a deodand, and so forfeited. The name is from _Deo dandum_--a thing that must be offered to God, and this because in early mediæval times the Church or the poor had the ultimate benefit.

For the origin of the custom one must go far back. In Hebrew, Greek, and Roman legislation, the physical object that caused the loss of human life was held accursed, and hence was destroyed or forfeited. In England a thing became a deodand only when the coroner's jury (or more rarely some other authority) had found it the cause of death; which death, moreover, must happen within a year and a day of the accident. If it did, the thing was seized, no matter where it was, or who had it. In default of delivery the township was liable, and it was the Sheriff's duty to get the value therefrom. If a man had _per infortunium_ (or without blame) used the article, the jury found that as a fact, and he was acquitted, or rather pardoned; but in strict law his goods were forfeit as late as 1828. And not everything causing death was a deodand. If a man fell into the water, was carried under a mill-wheel, and perished, the wheel was forfeit but not the mill. The distinction was sometimes difficult. Here are two actual examples. A cart and a waggon came into collision; the man in the cart was pitched out under the waggon-wheels and died. The two vehicles, all they held, the horses that drew them, were adjudged deodands, "because they all moved _ad mortem_." Again, a ship was hauled up for repairs, toppled over on a shipwright at work, and was declared forfeit. Your mediæval lawyer was nothing if not subtle, and he soon raised doubts enough to gravel a schoolman. He questioned if things fixed to the freehold could become deodands. Suppose a man were ringing a church bell, and the rope, getting twisted round his windpipe in some strange fashion, choked the life out of him: how then? The rope seemed past praying for, but what about the bell? The learned differed, yet all agreed that if the timber holding the bell got loose, and came crashing down on the sexton, the royal treasury, of clear right, pounced on rope, and bell, and timber. How furiously, with what a wealth of legal learning and invention, one fancies the utter barristers must have "mooted" those fascinating points after supper in the halls of their ancient Inns!

The decisions were hard to reconcile. Thus, in Edward the Third's time, it was held that if a man fall to his death from his horse against the trunk of a tree, the horse is forfeit, but not the tree. But in the same reign a distinction was drawn. One William Daventry, a servant to John Blaburgh, engaged in watering a horse, was grievously hurt. He was carried to his master's house "_apud Fleet Street in suburbio London_", and there at even he died. At first the horse was adjudged a deodand, but Blaburgh got the inquisition quashed on the ground that the horse had not thrown his rider. Again, if a lad under fourteen fell from a cart and was killed, there was no deodand: as some opined, because the masses might be dispensed with, in the case of one presumed sinless from his tender age, and the proper end of deodands was to procure masses; but others urged it was "because he was not of discretion to look to himself." The further question--what possible difference this could make--was not raised; for even a mediæval lawyer's speculation must stop somewhere. But how if the slayer were a lad? A Cornish case, _temp._ 1302, supplies an answer. Jack of Burton, a boy of twelve, had a mind to draw the bow. He rigged up a target in a house, and shot thereat from the outside. One arrow missed the mark, and, glancing off a hook, transfixed a woman called Rose. Rose died forthwith, and Jack fled in horror. It was held that _le Hoke_ was a deodand, but that the boy, on account of his age, was no whit to blame, and (with a touch of kindliness) a proclamation was made far and wide that he might return in safety. In this connection one recalls the awkward misadventure of Abbot, Archbishop of Canterbury, in the reign of James I., who, being out a-hunting, killed, by pure accident, Peter Hawkins, his keeper. He had many enemies, and all sorts of ecclesiastical and temporal penalties were threatened: at least, it was said, let all his goods be confiscate. But the King turned a deaf ear to these suggestions: he comforted the unlucky prelate with kindly words, and a full pardon, dated 26th September 1621, removed all possible danger from his reverend person.

If a man met his death afloat, there was deodand or no deodand as the water was fresh or salt, for these rules had no force on the high seas or in tidal rivers: because, said some, "there were so many deaths at sea." "Nay," said others, "how forfeit the ocean?" "But at least," it was replied, "one could take the ship"----but here again speculation must stop. Although deodands first went to the Crown, and were properly applied to pious or charitable uses, yet they were often granted to lords of manors: so often, indeed, that one of the few references to them in English literature--a couplet in Samuel Butler's _Hudibras_--treats this as the general rule.

"For love should, like a deodand,
Still fall to the owner of the land."

This owner was not seldom exacting, and his claim was met in characteristic English fashion. The coroner's jury returned the value of the deodand at next to nothing, _e.g._, "a horse, value three shillings," and the Court of "King's Bench" refused to disturb the finding. Hence one absurdity balanced another, and the doctrine was long defended. In 1820, Joseph Chitty, in his standard work on _Prerogatives_, maintains that "the forfeiture is rational so far as it strengthens the natural sensation of the mind at the sudden destruction of human life." But in later years these mediæval ghosts began to walk again to some purpose. In 1840 the London and Birmingham Railway Company was amerced in £2000 as a deodand! Railway directors were no doubt convinced that 9 and 10 Vic., c. 62, which in 1846 made an end of the whole business, came not a day too soon. Had the law of twenty years before that been restored, there might have been some warrant for stripping those same directors of all their property after each railway accident, and one shudders to think of the consequences had the coroner's jury found the plant used not _per infortunium_.

One thing must be added, many held that the instruments of a murder, though forfeited to the Crown, were not, properly speaking, deodands, and they quoted as illustration the curious case of one Rempston, who forced his boat's crew to row under London Bridge _invitis corum dentibus_ in dangerous weather. He was thrown out and drowned, and the jury, it was said, brought in a verdict of _felo de se_, to save the boat from forfeiture. But the weight of authority was emphatically against this view.

THE LAW OF THE FOREST

"A stretch of land, thick planted with trees;" so you picture a forest to yourself, but old English law held otherwise. There were miles of woodland that were not forest at all, and acres of pasture that were. John Manwood, the Elizabethan lawyer, still our chief authority on the subject, defines it as "a certain territory of woody grounds and fruitful pastures, privileged for wild beasts and fowls of forest, chase, and warren, to rest and abide in under the safe protection of the king." Such a preserve was exactly delimited, and might contain villages, churches, and so forth, within its bounds, as the New Forest does to-day. The king had certain rights over all, yet it was mainly private property; nay, there might be spaces in it, but not of it,--within its Bounds, but not within its Regard, as the phrase ran,--and so exempt from its peculiar laws. Manwood gives a picturesque, though quite erroneous derivation of the term: it was _For Rest_ of the wild beasts; but a sounder etymology traces the word to _foris_ (= outside), for that it was outside the jurisdiction of the Common Law, and had codes, courts, and officers of its own. The whole business was for centuries alike insult and wrong to the Commons of England.

Hunting was not merely the chief amusement of our early kings: it was a necessary pursuit for the keeping down of the wild beasts then a real danger to the fields and their cultivators. The Forest Charter of Canute the Dane (dated 1016) is a myth; but it is certain that, before the Conquest, the sovereign had a peculiar--howbeit, an undefined--property in the woodland. The Conqueror, who, according to the Saxon Chronicle, loved the tall deer as if he had been their father, devastated far and wide to make the New Forest; and he and his immediate successors punished hurt done to the deer with loss of life or limb. The Great Charter contained provisions against this odious abuse of power, and under Henry III. a special charter of the forest enacted that no man should lose life or limb for killing deer, at the same time that it disafforested (_i.e._, removed from the forest to which they had been improperly joined) vast tracts of country. After the New there was but one other forest made in England, that was the land round Hampton Court, afforested under Henry VIII. by Act of Parliament.

An attempt to revive royal rights over the woodland hastened the fall of Charles the First, and then the Commonwealth gave the forest system its death-blow, though it was not till the time of George III. that the great mass of enactments was formally repealed. A Court of Swainmote lingers in the New Forest and elsewhere, and its officials, called Verderers, albeit shorn of their ancient power and splendour, do their quaint antics still; but by an odd, though happily not singular inversion, those old popular wrongs are now become popular privileges; Epping Forest, for instance, could never have become a public park but for the Crown rights, and these same rights over the woodlands throughout the country now yield an income which more than covers the cost of the whole Civil List. Had the Crown looked more sharply to its own, the profit to ourselves had been still vaster.

The forest laws, however complex in detail, were all inspired by one consistent idea--the preservation, to wit, of the king's venison. Even under Edward I.'s comparatively humane rule the verderer held an inquest upon a deer found dead in the Regard, just as the coroner did upon a man's body, and the jury found how the creature came to its end. The very arrows gleaned there were entered in the verderer's role. The freeholder within that charmed ground might not fell his own timber without leave, lest he should spoil the _Cover_: nor could he turn out his goats to browse, for they would taint the pasture; whilst he must feed his sheep in moderation, else he committed the grievous offence of _surcharging_ the forest.

The forest had a huge staff of officers. First was a multitude of subordinates; foresters--who, if they kept ale-houses in the Regard, and encouraged folk to drink therein, committed a special crime called _Scotale_--agistors, woodwards, keepers, verminers, sub-verminers, and what not. These haled trespassers before the Court of Attachments, which was held every forty days. In command of them were the verderers, constituting, with representatives from the forest townships, the Court of Swainmote, which met thrice a year for (_inter alia_) the trial of the more important offences. Judgment on its findings was given at the Court of Justice Seat, held but once in the three years, under the presidency of a Lord Chief Justice in Eyre of the Forest. There were but two--one for the north, the other for the south of the Trent; and inasmuch as this officer was commonly some great noble--"A man," says my Lord Coke, with a touch of irony, "of greater dignity than of knowledge of the laws of the forest"--some skilled professional folk were joined with him in the commission. The last Court of Justice Seat was held in 1670 by the Earl of Oxford. It was a mere form: the last but one (in 1635) had created a fine pother by its exactions.

Offences were either trespasses _in Vert_ or trespasses _in Venison_. The Vert (= green) was of course the cover; and the destruction thereof was called _Waste_, while _Assart_ was stubbling it up to make ploughland: and _Purpestre_ (a most grievous business) was building on or enclosing part of the forest. (As late as the reign of Charles I., Sir Sampson Darnell was heavily fined for erecting a windmill on his own ground in Windsor Chase). Moreover, Vert might be _Over Vert_ or _Hault-Bois_, or it might be _Nether-Vert_ or _Sous-Bois_, according as it was underwood or not; and in either case it was _Special Vert_ if it bore fruit, such as pears, crabs, hips, and haws, whereon the deer might feed.

Venison, as lawyers understood it, was composed of Beasts of Forest--to wit, the hart, the hind, the hare, the boar, and the wolf--and Beasts of Chase. A Chase, which was like a park, but was not enclosed, might be held by a subject; but every forest was likewise a chase and a warren, and the beasts of chase were the buck, the doe, the martern, and the roe. These were described with wondrous detail. The hart--"the most stately beast which goeth on the earth, having as it were a majesty both in its gait and countenance"--was in his first year a Calf, in his second a Broket, in his third a Spayad, in his fourth a Staggard, in his fifth a Stag, and in his sixth a Hart. If he escaped the pursuit of king or queen he became a Hart Royal, which no subject might molest.

In 1194, Richard Coeur-de-Lion hunted a noble beast out of the forest of Sherwood into Barnsdale in Yorkshire, and there losing him, made proclamation "that no person should kill, hunt, or chase the said hart, but that he might safely return into the forest again." An animal thus honoured was called a Hart Royal Proclaimed, and in the 21st of King Henry VII., a man was indicted for taking so precious a life, but the case apparently went off for want of technical proof of proclamation. Your precise woodman talked of a Bevy of roes, a Richesse of marterns, a Lease of bucks. He said that a hart harboureth, whilst a buck lodgeth, and a hare was seated. He dislodged the buck, but he started the hare. He would tell you that the hart belloweth, the buck groaneth, the boar freameth; and whilst the hart had a Tail, the roe had a Single, the boar a Wreath, and the fox a Bush (not Brush be it noted) or Holy Water Sprinkle. Their amours (_e.g._ a fox went to clicketing), their young, their very excrements were dignified in a long array of special terms, the divisions and subdivisions of the deers' antlers being enough of themselves to gravel the tyro in woodcraft.

The peace of those precious animals was elaborately safeguarded, and it was specially forbidden "to haunt the forest" during the _Fence Moneth_, which was fifteen days before and after Midsummer. Most forests were surrounded by Purlieus, that is, territory which had been disafforested. Officers called Rangers patrolled this debateable territory to drive back the errant deer, and whilst the Purlieu-man (namely, the freeholder therein) might hunt on his own lands, he must call off his dogs if the beast once touched the forest. And every three years there was a special Drift of the forest, which was a sort of census of the venison. A man taken _With the Manner_ (Main Ouverte), that is, in the act of doing for the deer, was attached without bail. The offender might thus be caught red-handed in four ways:--(1) in _Dog-Draw_ he was chasing a wounded beast with hounds; (2) in _Stable-Stand_ he was drawing his bow in ambush; (3) in _Back-Bare_ he was carrying off his quarry; (4) in _Bloudy-Hand_ he bore the red marks of his spoil. Divers statutes put a yet keener edge upon the common law, as that under Henry VII., whereby hunting in the forest at night with painted vizards was made a felony.

And what of the dogs? The forest freeholders might keep mastiffs for the protection of home and homestead; but a Court of Regards was held every three years for their Lawing or Expeditation. Thereat your mastiff was made to place one of his paws upon a billet of wood, "then one with a mallet, setting a chisel of three inches broad upon the three claws of his forefoot, at one blow doth smite them clean off." Other dogs of any size were summarily banished the precincts.

Royalty was ever jealous of these rights. A Fee-buck and a Fee-doe were allotted to every verderer yearly (but these were but wages in kind); and every lord of Parliament going or returning through the forest, on summons from the king, might take one or two beasts, but if no forester was at hand, he must sound his horn, lest the kill might seem done in secret. But all the king's horses and all the king's men could not quench English love of sport. Robin Hood and his merry band are but the glorified types of a very multitude who chased the deer night and day, for the forest stretched mile after mile over hill and dale, and the tall deer were fair to look on, and the taste of their flesh was as sweet to the wanderer and the outlaw as to the noble or the monarch; and the law, albeit cruel, was weak, and a touch of danger but gave zest to the pursuit. To take a later instance, was not Shakespeare himself the most illustrious of poachers? Not on such rovers but on the poor hard-working folk within the Regard did the forest laws press with cruel weight, and yet old Manwood highly extols their sweet reasonableness--"The king," he says, "wearied with his anxious care for the weal of his subjects, is given by law these forests that he may delight his eye at sight of the vert, and mind and body by the hunting of the wild beasts," and so he finds it in his heart to regret that in his day the forests were somewhat diminished. And since the sovereign's good is now the peoples' good, we may agree with him, though not for the same reason.

PAR NOBILE FRATRUM

JOHN DOE AND RICHARD ROE

Old English law being full of fictions, had pressing need ever and anon of imaginary characters to play imaginary parts. Sometimes a name was picked at random from the street, and Smith, you hear without surprise, was in great request, or, as those shadows came and went in couples, you find Richard Smith as often as not paired with William Styles. But your ancient scribe lusted after quaintness. He loved a jingle, so names like John Den and Richard Fen--rare in actual life--peopled his parchment, and strove for mastery in his mock combats. But his prime favourites were Doe and Roe, nor would he raise Den or Fen or any other ghost, excepting he had need of more than two. Here is a simple instance of their use. In early times a man who commenced an action had to give surety that he would go on with it; nowadays, if he discontinue, he must pay the costs of the other side, but costs, incredible as it may sound, were not always the necessary shadow, or perhaps the substance, of law; and hence the need for the pledge. Under Edward III. the practice went out of use, but the form of it, as legal forms are apt to do, lingered on for centuries in this style:--

_Pledges of Prosecution_ { JOHN DOE.
{ RICHARD ROE.

In the old Action of Ejectment the pair were most active. So strange 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.

In the ordeal by hot water the accused, plunging his hand to the wrist in the boiling fluid, brought forth a stone suspended therein by a cord. (This was the Single Ordeal, and it became the Triple when the plunge was up to the elbow.) The arm was done up in bandages not to be removed till after three days; if the scald had healed the man was innocent, if it still festered he was guilty. In the ordeal by hot iron, a piece of red-hot metal was carried a distance of nine feet; it was then dropped and the hand was bandaged as already set forth. A knight had to thrust his fist into a glowing gauntlet; another form was a walk with naked feet over a sequence of red-hot ploughshares. We have a picturesque circumstantial and absolutely untrustworthy monkish account of how Emma, mother of Edward the Confessor, being suspected of an all too intimate acquaintance with Alwyn, Bishop of Winchester, underwent this trial. She took nine steps for herself and five for the Bishop, fixing her eyes the while on heaven. "When shall we reach these ploughshares?" queried she. How agreeable a surprise to find her little promenade already past and done with! No need to swathe _her_ feet, the red-hot iron had marked them not at all!

The last mode was the _Corsnæd_, or Cursed Morsel--a piece of barley-bread (or cheese), one ounce in weight. This "Creature of Sanctified Bread" was adjured, in terms terrible enough to make the sinner quake, to stick in the guilty throat, and cause the guilty jaws to be clenched and locked up. If in spite of all it went softly down, who dared to refuse belief in the man's innocence? It was chiefly for the clergy, and from every point of view must have been the most agreeable of the three, though a legend as untrustworthy as that of Emma ascribes to it the death of Earl Godwin, father of Harold. As he sat at meat with Edward the Confessor, the king brought up an old scandal about his brother's murder, "May God cause this morsel to choke me," passionately exclaimed the earl, "if I am guilty of the crime!" Edward blessed the bread; Godwin made an effort to swallow, choked and died. "Take away that dog," said the monarch in what would seem an outburst of savage glee. This was on April 15th, 1053, thirteen years before the Conquest. Godwin in truth died of a fit. It soon was the policy of the monkish chroniclers to write down the national party of which he had been the head, a fact which explains the fable were it worth serious examination. More interesting to note the survival of the rite in the still current rustic formula, "May this bit choke me if I lie!" If the ordeal proved a man guilty, the punishment was fine, death or outlawry, but even if he escaped, the Assize of Clarendon (1164) ordered that, in certain cases, he should abjure the realm. By that time compurgation was gone; in 1215 the Lateran Council issued a solemn decree against Trial by Ordeal; and soon after it had vanished from English law. There is a curious reference to it in the State Trials as late as 1679. John Govan, a Jesuit priest, was indicted in that year at the Old Bailey for an alleged share in the Popish Plot. With some hesitation he claimed the right of Trial by Ordeal as an ecclesiastical privilege of a thousand years' standing, but Scroggs and North peremptorily refused to listen to his plea. "We have no such law now," said the latter. Sir James Stephen assures us that the formula, "By God and by my country," wherein, till 1827, a prisoner must answer the question how he would be tried, sets forth a memory of it.