Category: Arbitration

 
+

Trial by Jury in Old Times.

 

By Thomas Frost.

 

WHEN we congratulate ourselves, as we are so apt to do, on the length of time the system of trial by jury has been established in England, and the safeguard it affords against attempts to strain the law to the prejudice of the accused, we are often unmindful of the fact that the institution has not always proved a safeguard when the court, acting under the influence of the Crown, endeavoured to obtain a conviction. It was only in the latter half of the sixteenth century that juries began to evince that determination not to yield their own judgment to the wishes of those in high authority, which became further developed in the course of the seventeenth. An interesting illustration of the old spirit of judges, and the new spirit of juries, is afforded by the trial of Sir Nicholas Throckmorton, in 1554, on a charge of high treason, in conspiring the death or deposition of the Queen, and the seizure by force of arms of the Tower of London. The prosecution was conducted by Serjeant Stanford and the Attorney-General, Griffin, the former leading; and it is noteworthy that both they and Chief Justice Bromley questioned the prisoner in much the same manner as is still customary in France and Belgium, striving to procure evidence that would convict him out of his own mouth. The endeavour failed, and the only criminating evidence against the prisoner was contained in the alleged confessions of Winter and Crofts, who, however, were not called as witnesses.

The jury, after several hours’ deliberation, returned a verdict of not guilty, upon which the Lord Chief Justice addressed them in threatening tones, saying, “Remember yourselves better. Have you considered substantially the whole evidence as it was declared and recited? The matter doth touch the Queen’s highness and yourselves also. Take good heed what you do.” The jury were firm, however, and the foreman replied to the remonstrance of the bench, “We have found him not guilty, agreeable to all our consciences.” Then the Attorney-General rose, and addressing the court, said, “An it please you, my lords, forasmuch as it seemeth these men of the jury, which have strangely acquitted the prisoner of his treasons whereof he was indicted, will forthwith depart the court, I pray you for the Queen that they and every one of them may be bound in a recognizance of £500 a-piece, to answer to such matters as they shall be charged with in the Queen’s behalf, whensoever they shall be charged or called.” The court went beyond even this audacious request, for they actually committed the jury to prison! Four of them were discharged shortly afterwards, having so little moral stamina left as to make a humble confession that they had done wrong; but the remaining eight were brought before the Star Chamber and severely dealt with, three being ordered to pay a fine of £2,000 each, and the others £200 each.

In the following reign, in a case in which three persons were indicted for murder, and the jury found them guilty of manslaughter only, contrary to the direction of the court, the jurors were both fined and bound in recognizances for their future “good behaviour.” A decision of the Lord Chancellor, the two Chief Justices, and the Chief Baron, in the reign of James I., sets forth that when a person is found guilty on indictment, the jury should not be questioned; but when a jury has acquitted a prisoner against what the court holds to be proof of guilt, they may be charged in the Star Chamber, “for their partiality in finding a manifest offender not guilty.” In 1667, we find this view extended to the case of grand juries ignoring a bill on grounds which the court did not consider sufficient. Chief Justice Kelying in that year having fined a grand jury of the County of Somerset, for not finding a true bill against a man accused of murder; but, says the report, “because they were gentlemen of repute in the county, the court spared the fine.” This case, and several others in which the same judge had acted in a similar manner, were brought under the notice of the House of Commons, however, and that assembly resolved “that the precedents and practice of fining or imprisoning jurors for verdicts is illegal.”

Notwithstanding this resolution of the House of Commons, William Penn, and another member of the Society of Friends, named Mead, being indicted at the Old Bailey for having, with other persons unknown, unlawfully and tumultuously assembled in Gracechurch Street, in the City of London, the Recorder dealt with the jury in a manner which caused the illegality of fining jurors for their verdicts to be again brought into question. The indictment set forth that Penn, by agreement with and abetment of Mead, did in the open street speak and preach to the persons there assembled, by reason whereof a great concourse of people gathered and remained a long time, in contempt of the King and the law, and to the great terror and disturbance of many of His Majesty’s liege subjects. The trial took place before the Recorder, the Lord Mayor, and the Aldermen; and when witnesses had deposed that Penn had preached, and that Mead was there with him, the Recorder summed up the evidence, and the jury retired to consider their verdict. They were absent a considerable time, at length returning with the verdict that Penn was “guilty of speaking in Gracechurch Street.”

“Is that all?” the Recorder asked.

“That is all I have in commission,” replied the foreman.

“You had as good say nothing,” observed the Recorder, and the Lord Mayor added, “Was it not an unlawful assembly? You mean he was speaking to a tumult of people there.”

“My lord,” returned the foreman, “that is all I have in commission.”

“The law of England,” said the Recorder “will not allow you to part until you have given in your verdict.”

“We have given in our verdict,” returned the jury, “and we can give in no other.”

“Gentlemen,” said the Recorder, “you have not given in your verdict, and you had as good say nothing; therefore go and consider it once more, that we may make an end of this troublesome business.”

The jury then asked for pen, ink, and paper, and the request being complied with, they again retired, returning after a brief interval with their verdict in writing. They found Penn “guilty of speaking or preaching to an assembly met together in Gracechurch Street,” and Mead not guilty.

“Gentlemen,” said the Recorder, regarding the jury angrily, “you shall not be dismissed till we have a verdict that the court will accept; and you shall be locked up, without meat, drink, fire, and tobacco. You shall not think thus to abuse the court. We will have a verdict, or you shall starve for it.”

Penn protested against this course, upon which the Recorder ordered the officers of the court to stop his mouth or remove him. The jury not leaving their box, the Recorder again directed them to retire and re-consider their verdict. Penn made a spirited remonstrance. “The agreement of twelve men,” said he, “is a verdict in law, and such a one having been given by the jury, I require the clerk of the peace to record it, as he will answer at his peril. And if the jury bring in another verdict contradictory to this, I affirm they are perjured men in law. You are Englishmen,” he added, turning to the jury, “mind your privilege; give not away your right.” The court then adjourned to the following morning, when the prisoners were brought to the bar, and the jury, who had been locked up all night, were sent for. They were firm of purpose, and through their foreman persisted in their verdict.

“What is this to the purpose?” demanded the Recorder, “I will have a verdict.” Then addressing a juror, named Bushel, whom he had threatened on the previous day, he said, “you are a factious fellow; I will set a mark on you, and whilst I have anything to do in the city, I will have an eye on you.”

Penn again protested against the jury being threatened in this manner, upon which the Lord Mayor ordered that his mouth should be stopped, and that the gaoler should bring fetters and chain him to the floor; but it does not appear that this was done. The jury were again directed to retire and bring in a different verdict, and they withdrew under protest, the foreman saying, “We have given in our verdict, and all agreed to it; and if we give in another, it will be a force upon us to save our lives.”

According to the narrative written by Penn and Mead, and quoted in Forsyth’s “History of Trial by Jury,” this scene took place on Sunday morning, and the court adjourned again to the following day, when, unless they were supplied with food surreptitiously, they must have fasted since Saturday. The foreman gave in their verdict in writing, as before, to which they had severally subscribed their names. The clerk received it, but was prevented from reading it by the Recorder, who desired him to ask for a “positive verdict.”

“That is our verdict,” said the foreman. “We have subscribed to it.”

“Then hearken to your verdict,” said the clerk. “You say that William Penn is not guilty in manner and form as he stands indicted; you say that William Mead is not guilty in manner and form as he stands indicted; and so say you all.”

The jury responded affirmatively, and their names were then called over, and each juror was commanded to give his separate verdict, which they did unanimously.

“I am sorry, gentlemen,” the Recorder then said, “you have followed your own judgments and opinions, rather than the good and wholesome advice which was given you. God keep my life out of your hands! But for this the court fines you forty marks a man, and imprisonment till paid.”

Penn was about to leave the dock, but was prevented from doing so, upon which he said, “I demand my liberty, being freed by the jury.”

“You are in for your fines,” the Lord Mayor told the prisoners.

“Fines, for what?” demanded Penn.

“For contempt of court,” replied the Lord Mayor.

“I ask,” exclaimed Penn, “if it be according to the fundamental laws of England, that any Englishman should be fined or amerced but by the judgment of his peers or jury; since it expressly contradicts the fourteenth and twenty-ninth chapters of the Great Charter of England, which say, ‘No freeman ought to be amerced but by the oath of good and lawful men of the vicinage.’”

“Take him away,” cried the Recorder.

“They then,” continues the narrative, “hauled the prisoners into the bail-dock, and from thence sent them to Newgate, for non-payment of their fines; and so were their jury. But the jury were afterwards discharged upon an habeas corpus, returnable in the Common Pleas, where their commitment was adjudged illegal.” Even then, judges appear to have remained unconvinced of the illegality of the practice, or stubborn in their desire to enforce their own views or wishes upon juries; for the question was not regarded as finally settled until the decision in the Court of Common Pleas was clinched, in the same year, by a similar judgment of the Court of King’s Bench.

+

Trials of Animals.

By Thomas Frost.

 

ONE of the most singular features of the jurisprudence of the middle ages, and one which was retained in the French code down to nearly the middle of the last century, was the indictment of domestic animals for injuries inflicted on mankind. The records of the criminal tribunals of France disclose ninety-two such judicial processes between 1120 and 1741, when the last of these grotesque trials took place in Poitou. The practice seems to have been based on the Mosaic law, it being there ordered that, “if an ox gore a man or a woman that they die, then the ox shall be stoned, and his flesh shall not be eaten.” (Exodus, c. xxi., v. 28.) Oxen and pigs were the animals that most frequently were the subjects of these strange proceedings, the indictment against the former being for goring persons, while the latter suffered for killing and sometimes devouring very young children.

The earliest instance of which any particulars can be gathered occurred in 1314, when, according to M. Carlier, who relates the story in his history of the Duchy of Valois, a bull escaped from a farm-yard in the village of Moisy, and gored a man so severely that death ensued. The Count of Valois, being informed of the fatility, directed that the bull should be captured, and formally prosecuted for causing the man’s death. This was done, and evidence was given by persons who had seen the man attacked and killed. The bull was thereupon sentenced to suffer death, which was inflicted by strangulation, after which the carcase was suspended from a tree by the hind legs. But the affair did not end thus, for the sentence was appealed against, probably by the owner of the bull, on the ground that the retainers of the Count of Valois had no legal authority to execute the sentence. This plea was debated at great length, and the provincial parliament eventually decided that, though the sentence was a just one, the Count of Valois had no justiciary authority in the district of Moisy.

Next in the order of time comes the trial at Falaise of a sow which had torn the face and arm of a child, from the effects of which injuries it died. The sow was condemned to be mutilated in the head and one fore leg, and afterwards to be strangled, which sentence was executed in the public square of the town. This was in 1386. Three years later, a horse was condemned to death at Dijon for having killed a man. In 1403, Simon de Baudemont, lieutenant of Meulan; Jean, lord of Maintenon; and the bailiff of Mantes and Meulan, signed an attestation of the expenses incurred in the prosecution and execution of a sow that had killed and partially eaten a child. The following is a copy of the document, to which it may be added that the story of the trial and execution may be found in the “Curiosités Judiciaires et Historiques du Moyen Age” of M. Aguel:—“Item, for expenses within the gaol, 6 sols. Item, to the executioner, who came from Paris to Meulan to put the sentence in execution, by command of our Lord the Bailiff and of the King’s Attorney, 54 sols. Item, for the carriage that conveyed her to execution, 6 sols. Item, for ropes to tie and haul her up, 2 sols, 8 deniers. Item, for gloves, 12 deniers; amounting in the whole to 69 sols, 8 deniers.” In connection with the first item of this curious document, it may be observed that, in a receipt delivered five years later by a notary of Pont de l’Arche to the gaoler of the prison of that town, the same amount is allowed for the daily food of a pig, imprisoned on the charge of killing a child, as for a man in the same prison. The last item, the gloves, is supposed by M. Aguel to be a customary allowance to the executioner.

In 1457, a sow and her six young pigs were tried at Lavegny, on the charge of having killed and partially eaten a child. The sow was convicted, and condemned to death; but the little ones were acquitted on the ground of their tender years or months, the bad example of their mother, and the absence of direct evidence of their having partaken of the unnatural feast. In 1494, sentence of death was pronounced on a pig by the Mayor of Laon for having mutilated and destroyed an infant in its cradle, full particulars of which case were given in the “Annuaire du Departement de l’Aisne” for 1812. The act of condemnation, as there given, concludes as follows:—“We, in detestation and horror of this crime, and in order to make an example and satisfy justice, have declared, judged, sentenced, pronounced, and appointed that the said hog, being detained a prisoner, and confined in the said abbey, shall be, by the executioner, strangled and hanged on a gibbet, near and adjoining the gallows in the jurisdiction of the said monks, being near their copyhold of Avin. In witness of which we have sealed this present with our seal.” This document was sealed with red wax, and endorsed:—“Sentence on a hog, executed by justice, brought into the copyhold of Clermont, and strangled on a gibbet at Avin.”

Three years later, a sow was condemned to be beaten to death for having mutilated the face of a child of the village of Charonne. The act of condemnation in this case directed further that the flesh of the sow should be given to the dogs of the village, and that the owner of the sow and his wife should make a pilgrimage to the Church of Our Lady at Pontoise, and bring on their return a certificate that this injunction had been duly complied with. In 1499, a bull was strangled for having killed a boy in the lordship of Cauroy, which belonged to the abbey of Beaufiré.

Lionnois gives, in his history of Nancy, a full report of the proceedings on the delivery of a condemned pig to the executioner of that city in 1572. He mentions, among other details, that the animal, secured by a cord, was led to a cross near the cemetery; that from the most remote period the justice of the lord, the abbot of Moyen Moutier, was accustomed to deliver to the provost, or marshal of St. Diez, near to this cross, all condemned criminals, that execution might ensue; and that, the said pig being a brute beast, the mayor and the justice held a conference at that place, and left the said pig tied with a cord, without prejudice to the judicial rights of the lord.

Judicial proceedings against the lower animals were not confined to France, for the list of such cases compiled by M. Berriat St. Prix, and published in the “Memoires de la Societé des Antiquaires” for 1829, mentions one tried at Lausanne in 1364, another at the same town in 1451, a third at Basle in 1474, another at Lausanne in 1479, and a fifth at the same place in 1554. Concerning the first of these Swiss trials, Ruchat states, in his history of the Protestant reformation in Switzerland, that the victim was a pig that had killed a child in the village of Chattens, situated among the Jorat hills. It was cited to appear in the Bishop’s Court at Lausanne, convicted of murder, and sentenced to death—the executioner being a pork butcher.

The Basle case was a very singular one. A farm-yard cock was tried on the absurd charge of having laid an egg. It was contended in support of the prosecution that eggs laid by cocks were of inestimable value for use in certain magical preparations; that a sorcerer would rather possess a cock’s egg than the philosopher’s stone; and that Satan employed witches to hatch such eggs, from which proceeded winged serpents most dangerous to mankind. On behalf of the gallinaceous prisoner, the facts of the case were admitted, but his advocate submitted that no evil animus had been proved against his client, and that no injury to man or beast had resulted. Besides, the laying of the egg was an involuntary act, and as such not punishable by law. If it was intended to impute the crime of sorcery to his client, he was entitled to an acquittal; for there was no instance on record of Satan having made a compact with one of the brute creation. In reply, the public prosecutor stated that, though the Evil One did not make compacts with brutes, he sometimes entered into them; and though the swine possessed by devils, as related by the Evangelists, were involuntary agents, yet they, nevertheless, were punished by being caused to run down a steep decline into the Lake of Galilee, where they were drowned. The poor cock was convicted, and condemned to death, not as a cock, however, but as a sorcerer, or perhaps a devil, in the form of a cock, on which finding it was, with the egg attributed to it, burned at a stake, with all the form and solemnity of a judicial execution.

As the lower animals were amenable to the law in Switzerland in those dark ages, so, in certain circumstances, they could be put into the witness box. If a house was broken into between sunset and sunrise, and the occupier killed the intruder, the act was regarded as justifiable homicide. But it was thought right to provide by law against the case of a man, living alone, who might invite a person whom he wished to kill to spend the evening with him, and having slain him, might assert that he committed the act in self-defence, or to protect his property, the dead man having been a burglar. Therefore, when a man was killed in such circumstances, the occupier of the house was required to produce some domestic animal that was an inmate of the house, and had witnessed the tragedy, and to declare his innocence on oath in the presence of such animal. If the brute witness did not contradict him, he was acquitted; the law taking it for granted that God, rather than allow a murderer to go unpunished, would intervene by causing a miraculous manifestation by the mouth of a dumb witness.

Even more strange than the trials of oxen, pigs, etc., for offences against mankind, were the legal proceedings often taken in the middle ages against noxious insects and the smaller quadrupeds, such as rats. The “Memoires de la Societé Royale Academique de Savoie” contain a very curious account of the proceedings instituted in 1445 and 1487 against certain beetles that had committed great ravages in the vineyards of St. Julien. Advocates were named on behalf of the vine-growers and the beetles respectively; but, by a singular coincidence, the insects disappeared when cited to answer for the mischief they had done, and the proceedings were in consequence abandoned. That was in 1445. In 1487, however, they re-appeared, and a complaint was thereupon addressed to the vicar-general of the Bishop of Maurienne, who named a judge, and also an advocate to represent the beetles. Counsel having been heard on both sides, the judge suggested that the vine-growers should cede to the defendants certain land, where they could live without encroaching on the vineyards. The plaintiffs agreed to this compromise, with the proviso that, in default of the defendants accepting the terms offered them, the judge would order that the vineyards should be respected by the beetles under certain penalties. The advocate for the beetles demanded time for consideration, and on the resumption of the proceedings stated that he could not accept, on behalf of his clients, the suggestion of the court, as the land proposed to be given up to them was barren, and afforded nothing upon which they could subsist. The court then appointed assessors to survey the land in question, and on their report that it was well wooded and provided with herbage, the conveyance was ordered to be engrossed in due form and executed. The matter was then regarded by the plaintiffs as settled; but the beetles discovered, or their advocate discovered for them, that a quarry of an ochreous earth, used as a pigment, had formerly been worked on the land conveyed to the insects, and though it had long since been worked out, some person possessed an ancient right of way to it, the exercise of which would be extremely prejudicial to them. Consequently, the agreement was held to be vitiated, and the legal proceedings had to be recommenced de novo. How they eventually terminated cannot be told, owing to the mutilation of the documents relating to the proceedings subsequent to 1487.

Nearly a century later, legal proceedings were commenced by the inhabitants of a village in the diocese of Autun against the rats by which their houses and barns were infested; the trial being famous in the annals of French jurisprudence as that in which Chassanee, the celebrated jurisconsult, first achieved distinction. The rats not appearing on the first citation, Chassanee, who was retained for the defence, argued that the summons was of too local a character, and that, as all the rats in the diocese of Autun were interested in the case, they should be summoned throughout the diocese. This plea being admitted, the curé of every parish in the diocese was instructed to summon all the rats within its limits to attend on a day named in the summons. The day having arrived, and the rats failing to appear, Chassanee said that, as all his clients were summoned, including old and young, sick and healthy, great preparations had to be made, and certain necessary arrangements effected, and he had to ask, therefore, for an extension of time. This also being granted, another day was appointed, but again not a single rat put in an appearance.

Chassanee then made an objection to the legality of the summons. A summons from that court, he said, implied full protection to the parties summoned, both on their way to it and on their return to their homes; and his clients, the rats, though most anxious to appear in obedience to the court, did not dare to leave their homes to come to Autun, on account of the number of evil-disposed cats kept by the plaintiffs. If the latter would enter into bonds, under heavy pecuniary penalties, that their cats should not molest his clients, the summons would be immediately obeyed. The court acknowledged the validity of this plea, but the plaintiffs declined to be bound for the good behaviour of their cats. The further hearing of the case was, therefore, adjourned sine die, and thus Chassanee gained his cause. Full particulars of the proceedings are given in a Latin work, written by him, and published in 1588.

 

+

Cock-Fighting in Scotland.

 

 

IT is highly probable that the Romans introduced cock-fighting into this country. It is generally believed that the sport was made popular by Themistocles. On one occasion he saw two cocks fighting, and their courage greatly impressed him, and he felt such exhibitions might teach a useful lesson of bravery to those who witnessed them. Periodical contests were exhibited, and were popular amongst the Greeks and Romans and with other nations, and were much appreciated by a large section of the inhabitants of this land. In “Bygone England,” by William Andrews, f.r.h.s. (London 1892), will be found a long account of “Fighting-Cocks in Schools.” One of the earliest accounts of the pastime in England, says Mr. Andrews, occurs in a “Description of the City of London,” by William Fitzstephen, who wrote in the reign of Henry II., and died in the year 1191. He records that it was the annual custom on Shrove Tuesday for the boys to bring their game cocks to the schools, to turn the schoolrooms into cockpits, the masters and pupils spending the morning witnessing the birds fighting.

Old town accounts contain many references to this custom, for example at Congleton, Cheshire, is the following item:—

“1601. Payd John Wagge for dressynge

the schoolhouse at the great

[Congleton] cockfyghte.”

£0 0s. 4d.

Hugh Miller, the famous geologist, who was born in the year 1802, in his popular volume “My Schools and Schoolmasters,” gives a graphic account of that amusement in the Cromarty grammar school where he received his education. “The school,” says Miller, “like almost all other grammar schools of the period in Scotland, had its yearly cock-fight, preceded by two holidays and a half, during which the boys occupied themselves in collecting and bringing up the cocks. And such was the array of fighting birds mustered on the occasion, that the day of the festival from morning till night used to be spent in fighting out the battle. For weeks after it had passed, the school floor continued to retain its deeply stained blotches of blood, and the boys would be full of exciting narratives regarding the glories of gallant birds who had continued to fight until their eyes had been pecked out; or who in the moment of victory, had dropped dead in the middle of the cock-pit.” Miller at some length denounces the cruel sport.

In England cock-fighting is prohibited by statute 12 and 13 Vict. 3, 92, under which every person who shall in any manner encourage, aid, or assist at the fighting or baiting of any bull, bear, badger, dog, cock, or other animal, shall forfeit and pay a penalty not exceeding £5 for every such offence. In Scotland it was not illegal until quite recently. An act was passed in 1850 known as the “Cruelty to Animals (Scotland) Act,” but the wording of the statute was found not to include the game or fighting-cock. The sport became popular and the law could not touch those that took part in the cruel amusement. It was felt to be a national scandal, and to prevent it, a short statute was passed on 30th May, 1895, whereby the definition of the word animal in the 11th section was amended by adding at the end thereof the words “or any game or fighting-cock, or other domestic fowl or bird.”

Mr. Robert Bird, the genial and gifted author of “Law Lyrics,” a volume which has been warmly welcomed by the public and the press, has made cock-fighting the subject of a clever poem.

COCKIELEERIE-LAW.

By Robert Bird.

In Full Court, Edinburgh, 23rd December, 1892.

 

Six legal wigs, like well-plumed tappit hens,

Sat brooding o’er a pair of fighting cocks;

While lesser wigs, begowned, and brief in hand,

Declaimed in flowing periods, of the fray,

Like ancient bards, that wanted but their harps,

Their wallets, ballad verse, and song, to make

The very goose quills, sleeping on the bench,

Awake! take sides and spill each other’s ink.

And as they spake, a legal fog dropt down

Upon the learned six, and each beheld,

In green mirage, born of the cloud of words,

Two cocks, Game cocks, crop-combed, erect, and slim,

With feathers dipped in crimson, gold, and blue,

Frill-necked, with trailing wings and spurs of steel,

That on each other flew and pecked and spurred,

And spurred and pecked again, until the Court

Reeked like a cock-pit, and the crowd of wigs,—

Of boyish idle wigs,—took bonnet shapes

That hooded scowling brows of cursing men,

Who laid their bets on this bird, and on that,

As, with quick panting breath and beaks agape,

They pranced, flew, fought, until the oaken bar

Seemed spattered o’er with feathers and cock blood.

At length one cock the other overthrew,

And struck quick spurs into his quivering breast

Until he died; then he, with croaking crow,

Fell, wounded, bleeding, dying by his side

Amid the applauding cheers of thirsty throats,

Soon to be slaked with liquid bets, and so

The battle ended, but the fog remained.

 

A rustling of silk plumes upon the bench,

Five wigs bent low, and thus great Solon spake—

“’Twas in Kilbarchan that this fight was fought,

And straight the men who prompted it were ta’en,

And jailed, and tried, and sentenced for the same;

But now they seek release, and this their plea,

That in the gracious Act which says that men

Shall not treat brutes and beasts with cruelty,

The name of “Cock” is absent; therefore they

Claim full exemption for their brutish deeds,

And we, vicegerents of our gentle Queen,

With spectacle on nose, must well explore

This vital point in Cockieleerie-law.

 

The illumined page of history reveals

Cock-fighting as an ancient royal sport.

The Early Greeks and Romans in their day

Found pastime sweet in setting cock on cock;

The sage Themistocles took keen delight

In battling fowls; while glorious Cæsar, too,

Loved much to back his bird; and, furthermore,

Marc Antony’s gamecocks did always lose

When pitted against Cæsar’s fiercer breed.

King Henry VIII., of sainted memory!

At Whitehall had a special cock-pit built,

Wherein his royal birds made lively sport

For gentle dames and all his merry knights.

 

The most accomplished scholar of his day,

Squire Roger Ascham, tutor to Queen Bess,

Much as he loved his books, loved cocks the more,

And loved them most when victors in the fight.

And last of all, that great and noble Duke,

The conqueror of Blenheim, in game birds

Found something that reminded him of self;

And thus we see the fighting instinct strong

In cocks, and other nobles of past time.

 

“Game cocks, we find, from earliest Cockereldom,

Delight in war, as dogs to bark and bite,

And raining blows upon each other’s ribs

Do best fulfil their part of nature’s plan,

Which built them slim and bade them love the fray;

And while we hope no preference here to show,—

’Tis open question, whether rearing fowls

To wring their necks, or match them in the pit,

Does more exalt the brute or sink the man.

 

“But here, the cocks were armed with spurs of steel,

And ’tis a subtle matter, whether they

With iron shod, or spurred with native horn,

Do deal the deadliest blows in angry fray;

And, while we have our own opinion strong!

’Tis not within our province to pronounce.

 

“If it be wrong with steel to prick a fowl,

What of the spurs with which hard riders goad

The bleeding sides of horses in the race,

Or in the steeplechase, or country hunt?

And what of hares in coursing run to death?

Of quivering foxes torn by yelling hounds?

Of wheeling pigeons slaughtered for a prize?

We make no mention of the common use,

 

Of otter hunting, grouse and pheasant drives.

And of the sport termed noble, where the stag

Is forced upon the guns that lay him low.

No doubt, two blacks can never make one white,

Nor multiplying blacks turn black to grey;

But if to brutalise mankind be thought amiss,

Then there are other ways, than fighting cocks.

 

“Still that’s beside our purpose, which is this—

To scan the statute, microscope in hand,

And note if in its sweep humane, we see

A roosting place for fighting chanticleer.

And there we find, or rather fail to find,

The name of “Cock” among the saving list

Of nineteen beasts protected by the law,

Though thus the list concludes, “and other kinds
Of animals domestic,” or like words.

Are we to find Game Cocks, domestic fowls?

Are we to hold that birds, are animals?

Our view is quite the contrary, or else

There’s not a beast, bird, fish, or insect but

The term “domestic” would to them apply,

And make it penal e’en to slay a louse.

 

“And while, in other parts of this same Act,

We find “Cock” followed by the general phrase,

Or other kind of animal,” we hold

It bears not on the matter now in hand,

But only serves to show that Parliament,

When brooding, clucking, hen-like, o’er this Act,

Had Cocks well in their eye, and plainly did,

Of purpose full, omit them from the list;

And while bear-fights, bull-fights, dog-fights, and all

Vile sports and brutish cruelty to beasts,

The spirit and the letter of the law

 

Do quite forbid, unanimous we hold
Cock-fighting is a lawful use of Cocks,
And finding so we liberate these men.

 

“It will be said, this Statute has been read

Reversely in our sister England, where

It is the Charter of proud Chanticleer;

But what of that? It alters not our mind!

But only shews, that they, of feebler clay,

Stick not at trifles, so the end be good,

And let the heart o’erbeat the legal mind;

While we, of sterner stuff, fail not to find

Motes in the sunshine of their simple wits,

And gnats to strain out of their cups of wine;

For in the nice accomplishment and use

Of splitting hairs, and weighing feathers small,

Of riddling wisdom from a peck of words,

We are more skilled, more subtle, more profound

Than our legal brethren of the South.”

Whereat five horse-hair wigs again bowed down

In low obeisance to the mighty sage,

And straight the Court was cleared of cocks and men.

+

Fatal Links.

 

By Ernest H. Rann.

 

A CONSIDERATION of the detection of crime brings forcibly to the mind the fact that officers of law have frequently to depend for success on the accidental discovery of the most trifling items and incidents. Conversely the criminal section of the community who prey on the weakness or folly of their neighbours have to fear not only a knowledge of their principal movements, but the discovery of the connecting link which shall complete the chain of evidence against them. The deepest laid plot, the most cunning scheme, contains a flaw which may be fatal to their operations, to their liberty, and even their life, a flaw which no amount of previous examination may detect, a weakness which can rarely be adequately guarded against. Justice and the vindication of the law, therefore, depend largely on a proper regard being paid to minor occurrences, which at first sight would seem to have no bearing whatever on the particular case under consideration. The history of crime contains numberless instances where the criminal has been brought to justice through one or other of these causes—the presence of particular hairs or threads on his clothing or on the weapon used, the direction of certain cuts on the body of his victim, the possession of trifling articles. At other times dreams have played no inconsiderable part in the vindication of the law, which has also been aided by supernatural visitants, or by the self-consciousness of the criminal.

It would be impossible in a short article like the present to offer a full list of cases of this description, but a few typical instances may be taken with the object of showing how crimes, long hidden, have been discovered in the most remarkable manner. Probably the best example occurred at Augsburg, in 1821. A woman named Maria Anna Holzmann lived in a house in the town belonging to one Sticht. Her means only permitted her to occupy a few of the rooms, and the remaining parts of the premises were let to lodgers, among whom were George Rauschmaier and Joseph Steiner. On Good Friday, April 20th, Holzmann disappeared. She had not given notice of her intended departure, and nothing was known of it until some days later when Rauschmaier and Steiner also left the premises, saying that their landlady had previously quitted the house, leaving them in possession of her keys. This information, however, was not given to the police until May 17th. In the meantime Holzmann’s relatives had become apprehensive of her safety, and being reluctantly forced to the conclusion that foul play had befallen her, they decided to take an inventory of her property, as it was known that, although in humble circumstances, the woman had managed by care and economy to amass considerable wealth. It was found, however, that the greater part of her money and other valuables were missing.

In spite of active enquiries no further action of importance in the matter was possible until the following January, when Theresa Belter, a washerwoman who also lived in the house, announced that she had found a thigh of a human body hidden in the loft. Further investigations revealed a leg and the other thigh in a heap of rubbish in a corner of the room, and between the chimney and the roof, a trunk without head or limbs was discovered. An old gown and a petticoat, identified as portions of the dress of Holzmann, were also brought to light, while search in Rauschmaier’s room disclosed other parts of a woman’s body. The head was missing, but when news of the unmistakeable crime was noised abroad, a neighbouring manufacturer stated that during the preceding year he had found a skull, still bearing portions of flesh and hair, in his factory weir, but had not considered the “find” worthy of preservation.

There could be no doubt that Maria Anna Holzmann had been murdered, and the whole machinery of the law was put in motion to bring the criminals to justice. Suspicion fastened itself strongly upon the two men, Rauschmaier and Steiner, but actual evidence against them, or indeed against anyone, was of the scantiest description until the separate pieces of the woman’s body were placed together. While the left arm was being examined, a brass ring fell out of the bend of the elbow, whence it had evidently slipped from the finger of the murderer. Whose was the ring? then became the all important question. Rauschmaier was arrested and confessed that he had stolen and pawned several articles of Holzmann’s property, but he sternly denied having committed the murder. The property, including a pair of ear-rings, had been recovered from the pawnbroker’s, and these, with the brass ring, were laid before the accused. He had not wit enough to discern the trap laid for him, and immediately on seeing the ornaments, he exclaimed “The ear-rings and the gold and brass rings are mine. The brass ring I always wore until within four or five weeks after Easter, since when I have worn gold ones. The brass ring fits the little finger of my left hand; it slips on and off with ease.” This foolish statement, and the place of the discovery of the ring, proved conclusively that Rauschmaier was the murderer of the unfortunate Holzmann. Subsequently he made full confession of the crime, stating that the brass ring must have slipped off while he was cutting up the body. He paid the penalty of his sins with death.

The “Greenacre” case, which occurred in 1836, was similar to the foregoing in many of its details. In that year, portions of the mutilated trunk of an old woman named Brown were found in a house in Edgeware Road, wrapped in old rags and sacking. Subsequently the head was discovered in Regent’s Canal, and the limbs in a drain in the neighbourhood of Camberwell. Comparison between the various portions left no doubt as to the identity of the deceased, and James Greenacre, whom Brown intended to marry, and to whose house she had gone with all her property, was accused of the murder. A woman named Gale with whom he lived was also charged with complicity in the deed. Once more suspicion, however strong, was insufficient to bring the crime right home to the accused, but the discovery, among Greenacre’s property, of some rags corresponding with the pieces covering the mutilated remains, together with a few articles belonging to Brown, turned suspicion into actual proof. Greenacre was condemned to death, and his companion sentenced to transportation for life.

The murder of William Begbie, at Edinburgh, is a remarkable case of the manner in which the author of a crime may remain long hidden, and only then be discovered by accident. Begbie was a bank porter, and on November 30th, 1806, he was employed to carry a parcel of notes, worth about £4,000, to one of the bank’s customers. On his way he had to pass through a narrow, dark, and tortuous entry, and there he was brutally murdered and the notes were stolen.

Although a knife, of a particular pattern, was left in the body, the murderer remained at large, and no clue to the terrible crime could be unearthed. Nine months later the bundle of notes, untouched, was found hidden in a wall, but long years passed before the mystery was completely solved. In 1822 a Bow Street runner named Denovan, while visiting Leith, chanced to fall into conversation with a sailor lately returned from captivity among the French. Speaking of old times the mariner accidentally mentioned that coming ashore one morning he had noticed a man like William Begbie, followed by a person dressed in black and of respectable demeanour. He lost sight of them for a few moments, but later on he was surprised to see the man in black rush out of the narrow entry with a bundle under his arm. On the next day he heard of the murder, and feeling confidant that he could throw light on the crime, he informed the mate of his vessel of what he had seen. Permission to go ashore was, however, refused. The vessel sailed, was captured by the French, and the sailor witness did not recover his liberty for fifteen years. Denovan set to work with this important clue, and enquiries proved that the man in black was no other than a notorious criminal named Mackoul, who had lived in Edinburgh in 1806. The law had claimed its own, however, previous to the sailor’s disclosures. In 1820 Mackoul had suffered death for robbery; still, though he was beyond punishment for his old crime in Edinburgh, it was satisfactory to know that the mystery of the bank porter’s death had at last been solved.

Probably the most notorious case in English annals of murder discovered by extraordinary means is that of the killing of Daniel Clarke by Eugene Aram. The main facts of the case are so well known that it is scarcely necessary to enter into them here. Aram, assisted by a man named Houseman, it may be remembered, murdered Clarke for the sake of his wealth, and hid the body in St Robert’s cave, near Knaresborough. There it remained from 1745 till 1759, when it was accidentally discovered by a labourer. Close examination led to the conclusion that the body, or rather the skeleton, was that of a murdered man, and when the mysterious and almost forgotten disappearance of Clarke was remembered, steps were taken to arrest his quondam companions Aram and Houseman. The latter turned king’s evidence, and on his testimony Aram was executed, leaving a shady memory to be invested with undeserved romance by a poet and a novelist of the following century.

Researches into modern criminal records also reveal a number of interesting cases similar to those cited above. A few years ago a Pole named Lipski was convicted in London of the murder of a woman. Strenuous efforts were made to obtain a pardon, on the ground that he had been wrongly convicted, but the solitary fact on which the Home Secretary decided to allow the law to take its course was that the door of the room had been locked in which the woman was found murdered, with Lipski himself hiding under the bed. And in tracing the Muswell Hill murder to its authors, the police were aided in their endeavours by the discovery of a common lantern which had been left on the scene of the crime. It was supposed to belong to a relative of one of the suspected men, and in order to verify this important link in the chain of evidence, a youthful agent of the detective force was employed to spin his top in front of the supposed owner’s house, engage him in conversation if possible, and obtain evidence of the ownership of the lantern. The result was completely satisfactory; the suspicions of the police were confirmed, and the murderers brought to justice, mainly, it may be said, through the lantern’s silent testimony.

Another case of murder, which occurred in 1806, was brought home in a singular and complete manner. A Deptford gentleman, named Blight, was killed by a pistol-shot, and Sir Astley Cooper, from an examination of the victim’s wounds and of the place of his murder, arrived at the opinion that none other than a left-handed man could have committed the crime. Acting on this conclusion the police arrested one Patch, who had been seen in the locality. When Patch was asked to hold up his hand to plead the indictment, he put up his left hand. The jury brought in a verdict of guilty, and before execution the criminal made full confession of his terrible deed.

Dreams also have played no inconsiderable part in the discovery of crime. We have not space in the present article to notice all trials where dream-evidence has been offered to the court; a brief notice of those cases in which it has had an important bearing must suffice. The most notorious instance, of course, is that of Maria Martin, the victim of the Red Barn tragedy. After her departure from home, in order, as was supposed, to many William Corder, nothing, either by way of letters, or otherwise, was heard of her, except brief mention in Corder’s communications. Nearly twelve months passed, when Mrs. Martin was startled and horrified by dreaming, on three successive nights, that Maria had been murdered and buried in the Red Barn. After much persuasion her husband and son consented to search the place, and there, in the exact spot indicated by Mrs. Martin as having been pointed out in her dreams, was found the body of her missing daughter, buried under the flooring in a sack.

Mention may also be made of the case of Ulick Maguire, an Irish farmer, whose wife dreamed that her husband had been murdered by a disappointed lover of hers, named O’Flanagan. A few days later an idiot boy, who lived in the house, was heard shrieking in terror: “Shanus dhu more O’Flanagan (big black James) has kilt Ulick, and buried him under the new ditch at the back of the garden. I dhramed it last night, evry wurrd av it.” The singular coincidence of the lad’s dream with her own excited Mrs. Maguire’s suspicions to the utmost, especially as her husband was away from home at the time. She ordered a search at the particular spot mentioned by the idiot boy, and there, to her horror, was found the body of Ulick, with the skull cleft in twain. Immediate request was made for “big black James.” He had absconded and enlisted in the army, but on being charged with the crime he admitted his guilt, and suffered the penalty of death.

In one instance, by far the most wonderful of its kind, the victim of a murder has appeared in successive dreams, and played the part of detective with admirable skill and effectiveness. A Grub Street victualler, named Stockton, was murdered towards the close of the seventeenth century. Three men were suspected of the crime, but neither of them could be discovered, and the affair seemed likely to become one of the mysteries of crime, when a Mrs. Greenwood dreamed that Stockton, who had been a neighbour during life, had taken her to a house in Thomas Street, telling her that his murderer was inside. On going to the house in person Mrs. Greenwood was told that Maynard, one of the suspected men, had gone abroad. The following night Stockton appeared and showed her the features of Maynard, and gave her such particulars of the man’s habits and resorts that he was captured within a few hours. From Maynard the names of his partners in guilt, Bevel and Marsh, were obtained, but again the authorities were at fault, until Stockton indicated the house where Marsh visited, and the yard (afterwards discovered to be the yard of Marshalsea Prison) in which Bevel would be found. From a crowd of other prisoners Mrs. Greenwood identified Bevel, and shortly afterwards, through her strange testimony, Marsh also was arrested. Then, as an old chronicle of the case affirms, Stockton appeared for the last time, and thanked her for her good offices. We have given the story as it has come down through two centuries; a whole body of clergymen attested its accuracy at the time, and present-day enquirers would have great difficulty, we imagine, in conclusively proving that the murder of Stockton was traced by other and less extraordinary means.

Closely allied to the evidence furnished by dreams, and indeed, as in the foregoing case of Stockton, sometimes barely distinguishable from it, is that offered by ghosts, actually seen by witnesses in a waking, but hallucinatory, state. Such evidence would scarcely be admissable in modern courts of law, but in past ages it was freely employed, and has served to bring criminals to the gallows. It must be admitted that the other testimony against the accused was strong, but in numerous instances ghosts have been instrumental in putting the officials on to a clue or track which they would most likely never have discovered by their own unaided efforts. In his “History of Durham,” Surtees mentions the case of Anne Walker, who lived in 1630, and had become engaged in an intrigue with a relative of the same name. The girl was placed for a time under the care of a friend in a neighbouring village, but one night she was removed from there by Walker and a man named Sharp. From that date no one saw her alive. A fortnight afterwards, Graime, a fuller, was terrified by the appearance in his mill of Anne Walker’s ghost, “dishevelled, blood-stained, and with five wounds in her head.” She told him the whole story of her murder; how Sharp had killed her with a collier’s pick, and then thrown her body down a shaft. Graime hesitated to use this strangely acquired information. Apparently incensed at his delay, Anne Walker repeatedly appeared, and in order to rid himself of these visitations, the frightened fuller at length acquainted the authorities with his story. Immediate enquiry confirmed his statements in every particular. Walker and Sharp were arrested, charged with the murder of the girl, found guilty, and executed, though to the last they maintained their innocence of the crime.

A case, somewhat similar, has occurred even in the present century, and in matter-of-fact, new world Australia, where visions might be expected to be few and far between. The friends of a well-to-do settler near Sydney were surprised to hear from his steward that he had been suddenly called to England on important legal business. Remembering the vast wealth of the man, and the necessity for precautions in regard to it, they accepted the statement, and also recognised the steward’s control of the estate during his master’s absence. What was the astonishment, however, of one of these friends, when on riding over the estate he saw the owner, whom he thought to be in England, sitting on a neighbouring stile? The figure looked at him silently and sorrowfully, then walked towards a pond and disappeared. Drags were procured and the water searched, when the body of the absent owner was brought to the surface. Confronted with the corpse the steward confessed that he had murdered his master at the identical stile on which the ghost had sat.

Pierre le Loyer, a French writer on law and the supernatural, mentions in his “Discours des Spectres,” the case of a man who mysteriously vanished, having, as was supposed, been murdered. A few weeks later the ghost of the absentee appeared to his brother, took him to a lonely spot, and there pointed out where he had been murdered and buried by his own wife and her lover. Enraged at this domestic perfidy and wickedness the brother denounced his sister-in-law, and on his testimony she was condemned to be strangled and her body afterwards burned.

About half a century ago a peculiar case of fraud was disclosed by remarkable means during the hearing of a law-suit in Tuscany. The decision of the court turned on the point whether a certain word had been erased from a particular document of importance. Chemical processes were alleged to have been employed, and acting on scientific knowledge one of the lawyers proposed that the document should be heated, as thereby a slight difference of shade or colouring between the paper and the letters supposed to have been removed might become visible. Permission was given to try the experiment, and on the application of heat the important word in question immediately appeared, and the court gave a verdict in accordance with this ingeniously devised testimony.

Since that time the progress and development of science have enabled criminal investigation to be conducted by methods which would otherwise be impossible, and with almost unerring certainty and decision. The microscope and the spectroscope have been employed in numerous cases of murder and forgery where less subtle means of discovery would have proved useless; chemical analysis has become an important agent of detection, while photography has also rendered signal service in the cause of justice. We may not have concerned ourselves with the numerous methods by which bank-note forgeries are detected; hitherto our references have been mainly to the more serious crime of murder, and with a few instances of this character brought to light through modern science our list must close.

Although, generally speaking, the microscope cannot discern any difference between the blood of man and that of other mammalia, yet the merest examination suffices to show the difference between mammalian blood and that of birds, reptiles, or fishes. In the one case the red blood corpuscles are round, and without a nucleus; in the other they are oval and nucleated. On this fact the evidence for a prisoner at Chelmsford charged with murder was completely rebutted. Blood stains had been found on his clothes, which, according to his counsel, had been caused by chicken’s blood. But the prosecution brought forward a microscopist, who stated that the blood stains were mammalian, and on this testimony the plea of the prisoner was rejected. In the following year, and at the same assizes, the testimony against a man charged with murder was strengthened by the microscopical discovery of cotton fibres on a certain weapon, which he was said to have used, while the murderers of a man who had been kicked to death were convicted on the evidence of two doctors, who found on the boots of the accused a number of hairs corresponding with the hair on the head of the victim. Evidence of this kind is becoming of extreme importance. Hardly a serious crime is investigated without the application of one or other of these scientific methods of detection, and with each success the career of the criminal becomes increasingly difficult and arduous, and his chances of success more remote. Of remarkable discoveries of crime the microscope, the camera, and the spectroscope furnish the most subtle instances, and it is quite possible that before long other methods of investigation, founded on the most recent scientific achievements, will also be brought into operation. The phonograph and the Röntgen rays are only waiting their turn to serve in the cause of justice.

+

Letter of the Law

by Alan E. Nourse

THE place was dark and damp, and smelled like moldy leaves. Meyerhoff followed the huge, bear-like Altairian guard down the slippery flagstones of the corridor, sniffing the dead, musty air with distaste. He drew his carefully tailored Terran-styled jacket closer about his shoulders, shivering as his eyes avoided the black, yawning cell-holes they were passing. His foot slipped on the slimy flags from time to time, and finally he paused to wipe the caked mud from his trouser leg. “How much farther is it?” he shouted angrily.

The guard waved a heavy paw vaguely into the blackness ahead. Quite suddenly the corridor took a sharp bend, and the Altairian stopped, producing a huge key ring from some obscure fold of his hairy hide. “I still don’t see any reason for all the fuss,” he grumbled in a wounded tone. “We’ve treated him like a brother.”

One of the huge steel doors clicked open. Meyerhoff peered into the blackness, catching a vaguely human outline against the back wall. “Harry?” he called sharply.

There was a startled gasp from within, and a skinny, gnarled little man suddenly appeared in the guard’s light, like a grotesque, twisted ghost out of the blackness. Wide blue eyes regarded Meyerhoff from beneath uneven black eyebrows, and then the little man’s face broke into a crafty grin. “Paul! So they sent you! I knew I could count on it!” He executed a deep, awkward bow, motioning Meyerhoff into the dark cubicle. “Not much to offer you,” he said slyly, “but it’s the best I can do under the circumstances.”

Meyerhoff scowled, and turned abruptly to the guard. “We’ll have some privacy now, if you please. Interplanetary ruling. And leave us the light.”

The guard grumbled, and started for the door. “It’s about time you showed up!” cried the little man in the cell. “Great day! Lucky they sent you, pal. Why, I’ve been in here for years—”

“Look, Zeckler, the name is Meyerhoff, and I’m not your pal,” Meyerhoff snapped. “And you’ve been here for two weeks, three days, and approximately four hours. You’re getting as bad as your gentle guards when it comes to bandying the truth around.” He peered through the dim light at the gaunt face of the prisoner. Zeckler’s face was dark with a week’s beard, and his bloodshot eyes belied the cocky grin on his lips. His clothes were smeared and sodden, streaked with great splotches of mud and moss. Meyerhoff’s face softened a little. “So Harry Zeckler’s in a jam again,” he said. “You look as if they’d treated you like a brother.”

The little man snorted. “These overgrown teddy-bears don’t know what brotherhood means, nor humanity, either. Bread and water I’ve been getting, nothing more, and then only if they feel like bringing it down.” He sank wearily down on the rock bench along the wall. “I thought you’d never get here! I sent an appeal to the Terran Consulate the first day I was arrested. What happened? I mean, all they had to do was get a man over here, get the extradition papers signed, and provide transportation off the planet for me. Why so much time? I’ve been sitting here rotting—” He broke off in mid-sentence and stared at Meyerhoff. “You brought the papers, didn’t you? I mean, we can leave now?”

Meyerhoff stared at the little man with a mixture of pity and disgust. “You are a prize fool,” he said finally. “Did you know that?”

Zeckler’s eyes widened. “What do you mean, fool? So I spend a couple of weeks in this pneumonia trap. The deal was worth it! I’ve got three million credits sitting in the Terran Consulate on Altair V, just waiting for me to walk in and pick them up. Three million credits—do you hear? That’s enough to set me up for life!”

Meyerhoff nodded grimly. “If you live long enough to walk in and pick them up, that is.”

“What do you mean, if?”

Meyerhoff sank down beside the man, his voice a tense whisper in the musty cell. “I mean that right now you are practically dead. You may not know it, but you are. You walk into a newly opened planet with your smart little bag of tricks, walk in here with a shaky passport and no permit, with no knowledge of the natives outside of two paragraphs of inaccuracies in the Explorer’s Guide, and even then you’re not content to come in and sell something legitimate, something the natives might conceivably be able to use. No, nothing so simple for you. You have to pull your usual high-pressure stuff. And this time, buddy, you’re paying the piper.”

You mean I’m not being extradited?

Meyerhoff grinned unpleasantly. “I mean precisely that. You’ve committed a crime here—a major crime. The Altairians are sore about it. And the Terran Consulate isn’t willing to sell all the trading possibilities here down the river just to get you out of a mess. You’re going to stand trial—and these natives are out to get you. Personally, I think they’re going to get you.”

Zeckler stood up shakily. “You can’t believe anything the natives say,” he said uneasily. “They’re pathological liars. Why, you should see what they tried to sell me! You’ve never seen such a pack of liars as these critters.” He glanced up at Meyerhoff. “They’ll probably drop a little fine on me and let me go.”

“A little fine of one Terran neck.” Meyerhoff grinned nastily. “You’ve committed the most heinous crime these creatures can imagine, and they’re going to get you for it if it’s the last thing they do. I’m afraid, my friend, that your con-man days are over.”

Zeckler fished in the other man’s pocket, extracted a cigarette, and lighted it with trembling fingers. “It’s bad, then,” he said finally.

“It’s bad, all right.”

Some shadow of the sly, elfin grin crept over the little con-man’s face. “Well, at any rate, I’m glad they sent you over,” he said weakly. “Nothing like a good lawyer to handle a trial.”

Lawyer? Not me! Oh, no. Sorry, but no thanks.” Meyerhoff chuckled. “I’m your advisor, old boy. Nothing else. I’m here to keep you from botching things up still worse for the Trading Commission, that’s all. I wouldn’t get tangled up in a mess with those creatures for anything!” He shook his head. “You’re your own lawyer, Mr. Super-salesman. It’s all your show. And you’d better get your head out of the sand, or you’re going to lose a case like it’s never been lost before!”


Meyerhoff watched the man’s pale face, and shook his head. In a way, he thought, it was a pity to see such a change in the rosy-cheeked, dapper, cocksure little man who had talked his way glibly in and out of more jams than Meyerhoff could count. Trading brought scalpers; it was almost inevitable that where rich and unexploited trading ground was uncovered, it would first fall prey to the fast-trading boys. They spread out from Terra with the first wave of exploration—the slick, fast-talking con-men who could work new territories unfettered by the legal restrictions that soon closed down the more established planets. The first men in were the richest out, and through some curious quirk of the Terrestrial mind, they knew they could count on Terran protection, however crooked and underhand their methods.

But occasionally a situation arose where the civilization and social practices of the alien victims made it unwise to tamper with them. Altair I had been recognized at once by the Trading Commission as a commercial prize of tremendous value, but early reports had warned of the danger of wildcat trading on the little, musty, jungle-like planet with its shaggy, three-eyed inhabitants—warned specifically against the confidence tactics so frequently used—but there was always somebody, Meyerhoff reflected sourly, who just didn’t get the word.

Zeckler puffed nervously on his cigarette, his narrow face a study in troubled concentration. “But I didn’t do anything!” he exploded finally. “So I pulled an old con game. So what? Why should they get so excited? So I clipped a few thousand credits, pulled a little fast business.” He shrugged eloquently, spreading his hands. “Everybody’s doing it. They do it to each other without batting an eye. You should see these critters operate on each other. Why, my little scheme was peanuts by comparison.”

Meyerhoff pulled a pipe from his pocket, and began stuffing the bowl with infinite patience. “And precisely what sort of con game was it?” he asked quietly.

Zeckler shrugged again. “The simplest, tiredest, moldiest old racket that ever made a quick nickel. Remember the old Terran gag about the Brooklyn Bridge? The same thing. Only these critters didn’t want bridges. They wanted land—this gooey, slimy swamp they call ‘farm land.’ So I gave them what they wanted. I just sold them some land.”

Meyerhoff nodded fiercely. “You sure did. A hundred square kilos at a swipe. Only you sold the same hundred square kilos to a dozen different natives.” Suddenly he threw back his hands and roared. “Of all the things you shouldn’t have done—”

“But what’s a chunk of land?”

Meyerhoff shook his head hopelessly. “If you hadn’t been so greedy, you’d have found out what a chunk of land was to these natives before you started peddling it. You’d have found out other things about them, too. You’d have learned that in spite of all their bumbling and fussing and squabbling they’re not so dull. You’d have found out that they’re marsupials, and that two out of five of them get thrown out of their mother’s pouch before they’re old enough to survive. You’d have realized that they have to start fighting for individual rights almost as soon as they’re born. Anything goes, as long as it benefits them as individuals.”

Meyerhoff grinned at the little man’s horrified face. “Never heard of that, had you? And you’ve never heard of other things, too. You’ve probably never heard that there are just too many Altairians here for the food their planet can supply, and their diet is so finicky that they just can’t live on anything that doesn’t grow here. And consequently, land is the key factor in their economy, not money; nothing but land. To get land, it’s every man for himself, and the loser starves, and their entire legal and monetary system revolves on that principle. They’ve built up the most confusing and impossible system of barter and trade imaginable, aimed at individual survival, with land as the value behind the credit. That explains the lying—of course they’re liars, with an economy like that. They’ve completely missed the concept of truth. Pathological? You bet they’re pathological! Only a fool would tell the truth when his life depended on his being a better liar than the next guy! Lying is the time-honored tradition, with their entire legal system built around it.”

Zeckler snorted. “But how could they possibly have a legal system? I mean, if they don’t recognize the truth when it slaps them in the face?”

Meyerhoff shrugged. “As we understand legal systems, I suppose they don’t have one. They have only the haziest idea what truth represents, and they’ve shrugged off the idea as impossible and useless.” He chuckled maliciously. “So you went out and found a chunk of ground in the uplands, and sold it to a dozen separate, self-centered, half-starved natives! Encroachment on private property is legal grounds for murder on this planet, and twelve of them descended on the same chunk of land at the same time, all armed with title-deeds.” Meyerhoff sighed. “You’ve got twelve mad Altairians in your hair. You’ve got a mad planet in your hair. And in the meantime, Terra’s most valuable uranium source in five centuries is threatening to cut off supply unless they see your blood splattered liberally all the way from here to the equator.”

Zeckler was visibly shaken. “Look,” he said weakly, “so I wasn’t so smart. What am I going to do? I mean, are you going to sit quietly by and let them butcher me? How could I defend myself in a legal setup like this?”

Meyerhoff smiled coolly. “You’re going to get your sly little con-man brain to working, I think,” he said softly. “By Interplanetary Rules, they have to give you a trial in Terran legal form—judge, jury, court procedure, all that folderol. They think it’s a big joke—after all, what could a judicial oath mean to them?—but they agreed. Only thing is, they’re going to hang you, if they die trying. So you’d better get those stunted little wits of yours clicking—and if you try to implicate me, even a little bit, I’ll be out of there so fast you won’t know what happened.”

With that Meyerhoff walked to the door. He jerked it inward sharply, and spilled two guards over on their faces. “Privacy,” he grunted, and started back up the slippery corridor.


It certainly looked like a courtroom, at any rate. In the front of the long, damp stone room was a bench, with a seat behind it, and a small straight chair to the right. To the left was a stand with twelve chairs—larger chairs, with a railing running along the front. The rest of the room was filled almost to the door with seats facing the bench. Zeckler followed the shaggy-haired guard into the room, nodding approvingly. “Not such a bad arrangement,” he said. “They must have gotten the idea fast.”

Meyerhoff wiped the perspiration from his forehead, and shot the little con-man a stony glance. “At least you’ve got a courtroom, a judge, and a jury for this mess. Beyond that—” He shrugged eloquently. “I can’t make any promises.”

In the back of the room a door burst open with a bang. Loud, harsh voices were heard as half a dozen of the huge Altairians attempted to push through the door at once. Zeckler clamped on the headset to his translator unit, and watched the hubbub in the anteroom with growing alarm. Finally the question of precedent seemed to be settled, and a group of the Altairians filed in, in order of stature, stalking across the room in flowing black robes, pug-nosed faces glowering with self-importance. They descended upon the jury box, grunting and scrapping with each other for the first-row seats, and the judge took his place with obvious satisfaction behind the heavy wooden bench. Finally, the prosecuting attorney appeared, flanked by two clerks, who took their places beside him. The prosecutor eyed Zeckler with cold malevolence, then turned and delivered a sly wink at the judge.

In a moment the room was a hubbub as it filled with the huge, bumbling, bear-like creatures, jostling each other and fighting for seats, growling and complaining. Two small fights broke out in the rear, but were quickly subdued by the group of gendarmes guarding the entrance. Finally the judge glared down at Zeckler with all three eyes, and pounded the bench top with a wooden mallet until the roar of activity subsided. The jurymen wriggled uncomfortably in their seats, exchanging winks, and finally turned their attention to the front of the court.

“We are reading the case of the people of Altair I,” the judge’s voice roared out, “against one Harry Zeckler—” he paused for a long, impressive moment—”Terran.” The courtroom immediately burst into an angry growl, until the judge pounded the bench five or six times more. “This—creature—is hereby accused of the following crimes,” the judge bellowed. “Conspiracy to overthrow the government of Altair I. Brutal murder of seventeen law-abiding citizens of the village of Karzan at the third hour before dawn in the second period after his arrival. Desecration of the Temple of our beloved Goddess Zermat, Queen of the Harvest. Conspiracy with the lesser gods to cause the unprecedented drought in the Dermatti section of our fair globe. Obscene exposure of his pouch-marks in a public square. Four separate and distinct charges of jail-break and bribery—” The judge pounded the bench for order—”Espionage with the accursed scum of Altair II in preparation for interplanetary invasion.”

The little con-man’s jaw sagged lower and lower, the color draining from his face. He turned, wide-eyed, to Meyerhoff, then back to the judge.

“The Chairman of the Jury,” said the Judge succinctly, “will read the verdict.”

The little native in the front of the jury-box popped up like a puppet on a string. “Defendant found guilty on all counts,” he said.

“Defendant is guilty! The court will pronounce sentence—”

Now wait a minute!” Zeckler was on his feet, wild-eyed. “What kind of railroad job—”

The judge blinked disappointedly at Paul Meyerhoff. “Not yet?” he asked, unhappily.

“No.” Meyerhoff’s hands twitched nervously. “Not yet, Your Honor. Later, Your Honor. The trial comes first.”

The judge looked as if his candy had been stolen. “But you said I should call for the verdict.”

“Later. You have to have the trial before you can have the verdict.”

The Altairian shrugged indifferently. “Now—later—” he muttered.

“Have the prosecutor call his first witness,” said Meyerhoff.

Zeckler leaned over, his face ashen. “These charges,” he whispered. “They’re insane!”

“Of course they are,” Meyerhoff whispered back.

“But what am I going to—”

“Sit tight. Let them set things up.”

“But those lies. They’re liars, the whole pack of them—” He broke off as the prosecutor roared a name.

The shaggy brute who took the stand was wearing a bright purple hat which sat rakishly over one ear. He grinned the Altairian equivalent of a hungry grin at the prosecutor. Then he cleared his throat and started. “This Terran riffraff—”

“The oath,” muttered the judge. “We’ve got to have the oath.”

The prosecutor nodded, and four natives moved forward, carrying huge inscribed marble slabs to the front of the court. One by one the chunks were reverently piled in a heap at the witness’s feet. The witness placed a huge, hairy paw on the cairn, and the prosecutor said, “Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you—” he paused to squint at the paper in his hand, and finished on a puzzled note, “—Goddess?”

The witness removed the paw from the rock pile long enough to scratch his ear. Then he replaced it, and replied, “Of course,” in an injured tone.

“Then tell this court what you have seen of the activities of this abominable wretch.”

The witness settled back into the chair, fixing one eye on Zeckler’s face, another on the prosecutor, and closing the third as if in meditation. “I think it happened on the fourth night of the seventh crossing of Altair II (may the Goddess cast a drought upon it)—or was it the seventh night of the fourth crossing?—” he grinned apologetically at the judge—”when I was making my way back through town toward my blessed land-plot, minding my own business, Your Honor, after weeks of bargaining for the crop I was harvesting. Suddenly from the shadow of the building, this creature—” he waved a paw at Zeckler—”stopped me in my tracks with a vicious cry. He had a weapon I’d never seen before, and before I could find my voice he forced me back against the wall. I could see by the cruel glint in his eyes that there was no warmth, no sympathy in his heart, that I was—”

“Objection!” Zeckler squealed plaintively, jumping to his feet. “This witness can’t even remember what night he’s talking about!”

The judge looked startled. Then he pawed feverishly through his bundle of notes. “Overruled,” he said abruptly. “Continue, please.”

The witness glowered at Zeckler. “As I was saying before this loutish interruption,” he muttered, “I could see that I was face to face with the most desperate of criminal types, even for Terrans. Note the shape of his head, the flabbiness of his ears. I was petrified with fear. And then, helpless as I was, this two-legged abomination began to shower me with threats of evil to my blessed home, dark threats of poisoning my land unless I would tell him where he could find the resting place of our blessed Goddess—”

“I never saw him before in my life,” Zeckler moaned to Meyerhoff. “Listen to him! Why should I care where their Goddess—”

Meyerhoff gave him a stony look. “The Goddess runs things around here. She makes it rain. If it doesn’t rain, somebody’s insulted her. It’s very simple.”

“But how can I fight testimony like that?”

“I doubt if you can fight it.”

“But they can’t prove a word of it—” He looked at the jury, who were listening enraptured to the second witness on the stand. This one was testifying regarding the butcherous slaughter of eighteen (or was it twenty-three? Oh, yes, twenty-three) women and children in the suburban village of Karzan. The pogrom, it seemed, had been accomplished by an energy weapon which ate great, gaping holes in the sides of buildings. A third witness took the stand, continuing the drone as the room grew hotter and muggier. Zeckler grew paler and paler, his eyes turning glassy as the testimony piled up. “But it’s not true,” he whispered to Meyerhoff.

“Of course it isn’t! Can’t you understand? These people have no regard for truth. It’s stupid, to them, silly, a mark of low intelligence. The only thing in the world they have any respect for is a liar bigger and more skillful than they are.”

Zeckler jerked around abruptly as he heard his name bellowed out. “Does the defendant have anything to say before the jury delivers the verdict?”

“Do I have—” Zeckler was across the room in a flash, his pale cheeks suddenly taking on a feverish glow. He sat down gingerly on the witness chair, facing the judge, his eyes bright with fear and excitement. “Your—Your Honor, I—I have a statement to make which will have a most important bearing on this case. You must listen with the greatest care.” He glanced quickly at Meyerhoff, and back to the judge. “Your Honor,” he said in a hushed voice. “You are in gravest of danger. All of you. Your lives—your very land is at stake.”

The judge blinked, and shuffled through his notes hurriedly as a murmur arose in the court. “Our land?”

“Your lives, your land, everything you hold dear,” Zeckler said quickly, licking his lips nervously. “You must try to understand me—” he glanced apprehensively over his shoulder “now, because I may not live long enough to repeat what I am about to tell you—”

The murmur quieted down, all ears straining in their headsets to hear his words. “These charges,” he continued, “all of them—they’re perfectly true. At least, they seem to be perfectly true. But in every instance, I was working with heart and soul, risking my life, for the welfare of your beautiful planet.”

There was a loud hiss from the back of the court. Zeckler frowned and rubbed his hands together. “It was my misfortune,” he said, “to go to the wrong planet when I first came to Altair from my homeland on Terra. I—I landed on Altair II, a grave mistake, but as it turned out, a very fortunate error. Because in attempting to arrange trading in that frightful place, I made certain contacts.” His voice trembled, and sank lower. “I learned the horrible thing which is about to happen to this planet, at the hands of those barbarians. The conspiracy is theirs, not mine. They have bribed your Goddess, flattered her and lied to her, coerced her all-powerful goodness to their own evil interests, preparing for the day when they could persuade her to cast your land into the fiery furnace of a ten-year-drought—”

Somebody in the middle of the court burst out laughing. One by one the natives nudged one another, and booed, and guffawed, until the rising tide of racket drowned out Zeckler’s words. “The defendant is obviously lying,” roared the prosecutor over the pandemonium. “Any fool knows that the Goddess can’t be bribed. How could she be a Goddess if she could?”

Zeckler grew paler. “But—perhaps they were very clever—”

“And how could they flatter her, when she knows, beyond doubt, that she is the most exquisitely radiant creature in all the Universe? And you dare to insult her, drag her name in the dirt.”

The hisses grew louder, more belligerent. Cries of “Butcher him!” and “Scald his bowels!” rose from the courtroom. The judge banged for silence, his eyes angry.

“Unless the defendant wishes to take up more of our precious time with these ridiculous lies, the jury—”

“Wait! Your Honor, I request a short recess before I present my final plea.”

“Recess?”

“A few moments to collect my thoughts, to arrange my case.”

The judge settled back with a disgusted snarl. “Do I have to?” he asked Meyerhoff.

Meyerhoff nodded. The judge shrugged, pointing over his shoulder to the anteroom. “You can go in there,” he said.

Somehow, Zeckler managed to stumble from the witness stand, amid riotous boos and hisses, and tottered into the anteroom.


Zeckler puffed hungrily on a cigarette, and looked up at Meyerhoff with haunted eyes. “It—it doesn’t look so good,” he muttered.

Meyerhoff’s eyes were worried, too. For some reason, he felt a surge of pity and admiration for the haggard con-man. “It’s worse than I’d anticipated,” he admitted glumly. “That was a good try, but you just don’t know enough about them and their Goddess.” He sat down wearily. “I don’t see what you can do. They want your blood, and they’re going to have it. They just won’t believe you, no matter how big a lie you tell.”

Zeckler sat in silence for a moment. “This lying business,” he said finally, “exactly how does it work?”

“The biggest, most convincing liar wins. It’s as simple as that. It doesn’t matter how outlandish a whopper you tell. Unless, of course, they’ve made up their minds that you just naturally aren’t as big a liar as they are. And it looks like that’s just what they’ve done. It wouldn’t make any difference to them what you say—unless, somehow, you could make them believe it.”

Zeckler frowned. “And how do they regard the—the biggest liar? I mean, how do they feel toward him?”

Meyerhoff shifted uneasily. “It’s hard to say. It’s been my experience that they respect him highly—maybe even fear him a little. After all, the most convincing liar always wins in any transaction, so he gets more land, more food, more power. Yes, I think the biggest liar could go where he pleased without any interference.”

Zeckler was on his feet, his eyes suddenly bright with excitement. “Wait a minute,” he said tensely. “To tell them a lie that they’d have to believe—a lie they simply couldn’t help but believe—” He turned on Meyerhoff, his hands trembling. “Do they think the way we do? I mean, with logic, cause and effect, examining evidence and drawing conclusions? Given certain evidence, would they have to draw the same conclusions that we have to draw?”

Meyerhoff blinked. “Well—yes. Oh, yes, they’re perfectly logical.”

Zeckler’s eyes flashed, and a huge grin broke out on his sallow face. His thin body fairly shook. He started hopping up and down on one foot, staring idiotically into space. “If I could only think—” he muttered. “Somebody—somewhere—something I read.”

“Whatever are you talking about?”

“It was a Greek, I think—”

Meyerhoff stared at him. “Oh, come now. Have you gone off your rocker completely? You’ve got a problem on your hands, man.”

“No, no, I’ve got a problem in the bag!” Zeckler’s cheeks flushed. “Let’s go back in there—I think I’ve got an answer!”

The courtroom quieted the moment they opened the door, and the judge banged the gavel for silence. As soon as Zeckler had taken his seat on the witness stand, the judge turned to the head juryman. “Now, then,” he said with happy finality. “The jury—”

“Hold on! Just one minute more.”

The judge stared down at Zeckler as if he were a bug on a rock. “Oh, yes. You had something else to say. Well, go ahead and say it.”

Zeckler looked sharply around the hushed room. “You want to convict me,” he said softly, “in the worst sort of way. Isn’t that right?”

Eyes swung toward him. The judge broke into an evil grin. “That’s right.”

“But you can’t really convict me until you’ve considered carefully any statement I make in my own defense. Isn’t that right?”

The judge looked uncomfortable. “If you’ve got something to say, go ahead and say it.”

“I’ve got just one statement to make. Short and sweet. But you’d better listen to it, and think it out carefully before you decide that you really want to convict me.” He paused, and glanced slyly at the judge. “You don’t think much of those who tell the truth, it seems. Well, put this statement in your record, then.” His voice was loud and clear in the still room. “All Earthmen are absolutely incapable of telling the truth.

Puzzled frowns appeared on the jury’s faces. One or two exchanged startled glances, and the room was still as death. The judge stared at him, and then at Meyerhoff, then back. “But you”—he stammered. “You’re”—He stopped in mid-sentence, his jaw sagging.

One of the jurymen let out a little squeak, and fainted dead away. It took, all in all, about ten seconds for the statement to soak in.

And then pandemonium broke loose in the courtroom.


“Really,” said Harry Zeckler loftily, “it was so obvious I’m amazed that it didn’t occur to me first thing.” He settled himself down comfortably in the control cabin of the Interplanetary Rocket and grinned at the outline of Altair IV looming larger in the view screen.

Paul Meyerhoff stared stonily at the controls, his lips compressed angrily. “You might at least have told me what you were planning.”

“And take the chance of being overheard? Don’t be silly. It had to come as a bombshell. I had to establish myself as a liar—the prize liar of them all, but I had to tell the sort of lie that they simply could not cope with. Something that would throw them into such utter confusion that they wouldn’t dare convict me.” He grinned impishly at Meyerhoff. “The paradox of Epimenides the Cretan. It really stopped them cold. They knew I was an Earthmen, which meant that my statement that Earthmen were liars was a lie, which meant that maybe I wasn’t a liar, in which case—oh, it was tailor-made.”

“It sure was.” Meyerhoff’s voice was a snarl.

“Well, it made me out a liar in a class they couldn’t approach, didn’t it?”

Meyerhoff’s face was purple with anger. “Oh, indeed it did! And it put all Earthmen in exactly the same class, too.”

“So what’s honor among thieves? I got off, didn’t I?”

Meyerhoff turned on him fiercely. “Oh, you got off just fine. You scared the living daylights out of them. And in an eon of lying they never have run up against a short-circuit like that. You’ve also completely botched any hope of ever setting up a trading alliance with Altair I, and that includes uranium, too. Smart people don’t gamble with loaded dice. You scared them so badly they don’t want anything to do with us.”

Zeckler’s grin broadened, and he leaned back luxuriously. “Ah, well. After all, the Trading Alliance was your outlook, wasn’t it? What a pity!” He clucked his tongue sadly. “Me, I’ve got a fortune in credits sitting back at the consulate waiting for me—enough to keep me on silk for quite a while, I might say. I think I’ll just take a nice, long vacation.”

Meyerhoff turned to him, and a twinkle of malignant glee appeared in his eyes. “Yes, I think you will. I’m quite sure of it, in fact. Won’t cost you a cent, either.”

“Eh?”

Meyerhoff grinned unpleasantly. He brushed an imaginary lint fleck from his lapel, and looked up at Zeckler slyly. “That—uh—jury trial. The Altairians weren’t any too happy to oblige. They wanted to execute you outright. Thought a trial was awfully silly—until they got their money back, of course. Not too much—just three million credits.”

Zeckler went white. “But that money was in banking custody!”

“Is that right? My goodness. You don’t suppose they could have lost those papers, do you?” Meyerhoff grinned at the little con-man. “And incidentally, you’re under arrest, you know.”

A choking sound came from Zeckler’s throat. “Arrest!

“Oh, yes. Didn’t I tell you? Conspiring to undermine the authority of the Terran Trading Commission. Serious charge, you know. Yes, I think we’ll take a nice long vacation together, straight back to Terra. And there I think you’ll face a jury trial.”

Zeckler spluttered. “There’s no evidence—you’ve got nothing on me! What kind of a frame are you trying to pull?”

“A lovely frame. Airtight. A frame from the bottom up, and you’re right square in the middle. And this time—” Meyerhoff tapped a cigarette on his thumb with happy finality—”this time I don’t think you’ll get off.”

+

Ancient Tenures.

By England Howlett.

 

PRACTICALLY all the landed property in England is, by the policy of our laws, supposed to be granted by, dependent upon, and holden of some superior lord, in consideration of certain services to be rendered to such lord by the possessor of this property, and the terms or manner of their possession is therefore called a tenure. Thus all the land in the kingdom is supposed to be held, mediately or immediately, of the sovereign who is consequently styled the lord or lady paramount.

All tenures being thus derived, or supposed to be derived, from the sovereign, those who held directly under such sovereign, and in right of the crown and dignity, were called tenants in capite, or in chief, which was the most honourable species of tenure, although at the same time it subjected the tenants to far greater and more burthensome services than the inferior tenures did, and this distinction ran through all the different sorts of tenure. William I., and other feudal sovereigns, although they made large and numerous grants of land, always reserved a rent or certain annual payments, which were collected by the sheriffs of the counties in which the lands lay, to show that they still retained the dominium directum in themselves.

With our ancestors the most honourable and highly esteemed species of tenure was that by knight service, and this was purely and entirely a military tenure, being, in fact, the result of the feudal establishment in England. Now to make a tenure by knight service, a determinate quantity of land was necessary, which was called a knight’s fee, feodum militare; the measure of which in 3 Edward I., was estimated at twelve ploughlands, and its value (although it varied with the times) in the reigns of Edward I. and Edward II. was stated at £20 per annum. The knight who held this proportion of land was bound to attend his lord to the wars for forty days in every year, if called upon so to do, which attendance was his rent or service for the land he claimed to hold. If, however, he held only half a knight’s fee, he was only bound to attend his lord twenty days, and so on in proportion. This tenure of knight service drew with it several consequences as inseparably incident to the tenure in chivalry, and one of the most profitable, and, at the same time, arbitrary of these was marriage. This incident called marriage was the right which the lord possessed of disposing of his infant wards in matrimony, at their peril of forfeiting to him, in case of their refusing a suitable match, a sum of money equal to the value of the marriage; that is, what the suitor was willing to pay down to the lord as the price of marrying his ward; and double the market value was to be forfeited, if the ward presumed to marry without the consent of the lord.

The personal attendance rendered necessary by knight service growing troublesome and inconvenient in many respects, the tenants found means of compounding for it; first, by sending others in their stead, and then in process of time making a pecuniary satisfaction to the lord in lieu of it. This pecuniary satisfaction at last came to be levied by assessments at so much for every knight’s fee; the first time this appears to have been done was in 5 Henry II., on account of his expedition to Toulouse; but it soon became so universal that personal attendance fell quite into disuse. From this period we find, from our ancient histories, that when the kings went to war, they levied scutages on their tenants, that is, on all the landowners of the Kingdom, to defray their expenses, and to pay for the hire of troops.

These assessments, in the time of Henry II., seem to have been made in a most arbitrary manner, and entirely at the king’s will and pleasure. The prerogative became, indeed, abused to such an extent, that at last it became a matter of national clamour, and King John was obliged to consent by his Magna Carta, that no scutage should be imposed without the consent of Parliament. But this clause was omitted in the Charter of Henry III., where we only find that scutages, or escuage, should be taken as they were used to be taken in the time of Henry II.; that is, in a reasonable and moderate manner. Yet afterwards, by statute 25 Edward I., and many subsequent statutes, it was again provided, that the king should take no aids or tasks but by the common assent of the realm; hence it was held that scutage, or escuage, could not be levied except with the consent of Parliament; such scutages being indeed the groundwork of all succeeding subsidies, and the land tax of later times.

It will easily be seen that with the degenerating of knight service, or personal military duty into a pecuniary assessment, all the advantages were destroyed, and nothing in fact remained but the hardships. Instead of having a national militia, composed of barons, knights, and gentlemen, bound by their interests and their honour to defend the king and country, the whole system of military tenures tended to nothing else but a wretched means of raising money to pay an army of occasional mercenaries. At length the military tenures, with all their heavy appendages were destroyed at one blow by statute, 12 Charles II., C. 24, which enacts “that the courts of wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriage, by reason of any tenure of the king or others, be totally taken away. And that all fines for alienation, tenures by homage, knight service, and escuage, and also aids for marrying the daughter, or knighting the son, and all tenures of the king in capite, be likewise taken away. And that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frank almoign, copyholds, and the honorary services of grand serjeanty.”

Another ancient tenure was that by Grand Serjeanty, whereby the tenant was bound, instead of serving the king generally in the wars, to do some special honorary service for the king in person; as to carry his banner, his sword, or the like; or to be his butler, champion, or other officer at his coronation. Tenure by cornage was a species of grand serjeanty, being a grant of land upon condition that the tenant was to wind a horn when the Scots or other enemies entered the land, in order to warn the king’s subjects.

The tenure of petit serjeanty bears a great resemblance to the tenure of grand serjeanty; for as the one is a personal service, so the other is a rent or render, both tending to some purpose relative to the king’s person. Petit serjeanty as defined by Littleton, consists in holding lands of the king, by service of rendering to him annually some small implement of war, as a bow, a sword, a lance, an arrow, or the like. This, of course, is but socage in effect, for it is no personal service, but a certain rent. The tenure by which the grants to the Duke of Marlborough and the Duke of Wellington, for their great military services to the country, are held, are of this kind, each rendering a small flag or ensign annually, which is deposited in Windsor Castle. Bury House (New Forest), the property of Sir Charles Mill, Bart., is held by the tenure of presenting the king whenever he enters the New Forest with a brace of milk-white greyhounds. A breed of these dogs is preserved by the family in readiness. King George III. received dogs in recognition of this tenure in 1789, and the incident is the subject of one of Lawrence’s pictures.

In Beckwith’s edition of Blount’s “Fragmenta Antiquitatis,” the following tenure is inserted from the “Black Book of Hereford.”—“The tenants at Hampton Bishop, in the county of Hereford, were to get yearly six horse loads of rods or wattels, in the Hay Wood, near Hereford, and bring them to Hereford to make booths (or hurdles to pen sheep in) at the fair when they should be required; and for every load of the said rods they were to be allowed a halfpenny at the fairs.”

This tenure would appear to relate to one particular fair only, and not to all the fairs formerly held at Hereford. The particular fair is supposed to have been the one beginning on May 19th, and commonly called the nine-days’ fair, from the circumstance of its continuing for that length of time. From time immemorial this fair was proclaimed, with certain formalities, by the Bishop of Hereford’s bailiff, or his deputy, the tolls of the fair belonging to one or both of these officers. During the continuance of the fair, the Bishop’s bailiff superseded the Mayor of Hereford as acting magistrate, the fair being held in a street opposite the Bishop’s palace.

Brienston, in Dorsetshire, was held in grand serjeanty by a curious jocular tenure, viz.:—by finding a man to go before the king’s army for forty days when he should make war in Scotland (some records say in Wales) bareheaded and bare-footed, in his shirt, and linen drawers, holding in one hand a bow, and in the other an arrow without feathers.[6]

The Dukes of Athol hold the Blair Athol estate by the tenure of presenting a white rose to the sovereign whenever he visits them there.

Land was frequently held by the tenure of protecting the church property in times of war. Scott tells us how the Bishop of Durham gave lands to the Danish Count, Witikind, to be held by this tenure. The story is not true, but the tenure is;

Broad lands he gave him on Tyne and Wear,

To be held of the Church by bridle and spear;

Part of Monkwearmouth, of Tynedale part,

To better his will and soften his heart.

Harold the Dauntless.

Canto i., IV.

The tenure of ancient demesne exists in those manors, and in those only, which belonged to the crown in the reigns of Edward the Confessor and William the Conqueror, and in Domesday Book are called Terrœ Regis Edwardi. The tenants are freeholders and possessed certain privileges, the chief of which was a right to sue and be sued only in their lord’s court.

Another kind of ancient tenure, still subsisting, is the tenure of frankalmoign, or free alms, and this is the tenure by which the lands of the church are for the most part held. This tenure is expressly excepted from the statute, 12 Charles II., by which the other ancient tenures were destroyed. It has no peculiar incidents, the tenants not being bound even to do fealty to the lords, because, as Littleton says, the prayers and other divine services of the tenants are better for the lords than any doing of fealty. As the church is a body having perpetual existence, there is, moreover, no chance of any escheat. By this tenure almost all the monasteries and religious houses held their lands. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shewn to religion and religious men in ancient times. This too, no doubt, is the reason that tenants in frankalmoign were discharged from all other services except the repairing of highways, building castles, and repelling invasions; just in fact as the Druids, among the Ancient Britons, had similar privileges. The tenure being purely spiritual, the lord had no remedy for neglect by distress or otherwise, but merely a complaint to the ordinary to correct it.

One of the most interesting tenures is that of Borough English. There are a great number of manors throughout the country in which this tenure prevails; they are not however confined to one county or one district. Borough English is the right of succession of the youngest son, instead of the eldest, to real estate in case of intestacy, but the custom is not always the same; it differs in different manors. In some it is confined to the sons only, and if there should be no son the estate is shared equally amongst all the daughters. In other manors, principally Sussex, the youngest daughter inherits. Again, there are cases to be found where if there be no children, the youngest brother inherits, and in others it goes according to the rules of the common law. There are, moreover, places in which the copyhold land only is Borough English, while the freehold is held by the ordinary tenure, and in others the freehold and copyhold alike follow the Borough English custom.

The area over which this Borough English tenure prevails is an exceedingly wide one. It is found in nearly every part of Europe, except perhaps Italy and Spain—in Germany, Hungary, the Ural mountains, and in Asia as far as the borders of China. Many attempts have been made to explain the custom. Littleton suggests that the youngest son, by reason of his tender age, is not so capable as the rest of his brethren to help himself. It is possible the origin may have come to us from the Tartars, amongst whom this custom of descent to the youngest son also prevails. That nation is composed almost entirely of shepherds and herdsmen, and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle, and go to seek a new habitation. And thus we find that, among many other northern nations, it was the custom for all the sons, but one, to migrate from the father, which one became his heir.

The tenure of Gavelkind prevails principally in the County of Kent. It is universally known what struggles the Kentish men made to preserve their ancient liberties, and with how much success those struggles were attended. It seems fair therefore, to conclude that this custom was a part of those liberties, agreeably to the general opinion, that Gavelkind, before the Norman Conquest, was the general custom of the realm. The distinguishing properties of this tenure are various; some of the principal are these: 1. The tenant is of age sufficient to alienate his estate by feoffment at the age of fifteen. 2. There never was any escheat in case of an attainder and execution for felony; their maxim being “the father to the bough, the son to the plough.” 3. In most places, the tenant had the power of devising his lands by will, before the statute for that purpose was made. 4. The lands descend not to the eldest, youngest, or any one son only, but to all the sons together. This last incident is, of course, the most important affecting the tenure, and not only this, but also the most interesting, in that, like Borough English, it prevails to the present day. True it is that certain lands in Kent, once Gavelkind, have been made descendable according to the rules of the common law, by special statutes; however, these statutes only affect a very small portion of the county.

Gavelkind and Borough English, being customs already acknowledged by the law, need not be specially pleaded; it is sufficient to show that the lands are affected and regulated by the same; but all other private customs must be pleaded.

The ancient Barons of Buccleuch, both from feudal splendour and from their frontier situation, retained in their household at Branksome a number of gentlemen of their own name, who held lands from their chief for the military service of watching and guarding his castle.

Nine and twenty knights of fame

Hung their shields in Branksome Hall

Nine and twenty squires of name

Brought them their steeds from bower to stall.

Nine and twenty yeomen tall

Waited duteous on them all.

They were all knights of metal true,

Kinsmen to the bold Buccleuch.

“Lay of the Last Minstrel.”—Scott.

Canto i., III.

 

 

+

 The Manor and Manor Law.

 

By England Howlett.

 

EVERYTHING relating to the manor reminds us forcibly of the baron of olden days, with his little territory, in which he was practically a king. Estates in copyhold are essentially distinct both in their origin and in their nature from those of freehold estates. Copyhold lands are holden by copy of court roll, that is to say, the muniments of the title to such lands are copies of the roll or book in which an account is kept of the proceedings in the court of the manor to which the lands belong. For it must be remembered that all copyhold lands belong to and are parcel of some manor. An estate in copyhold is not a freehold; but, according to construction of law, merely an estate at the will of the lord of the manor, at whose will copyhold estates are expressed to be holden. Copyholds are also said to be holden according to the custom of the manor to which they belong, for custom is of course the life and being of copyholds.

We must remember that in former days, a baron, or great lord, becoming possessed of a large tract of land, granted part of it to freemen for estates in fee simple. Part of the land he reserved to himself, and this formed the demesnes of the manor, properly so called: other parts of the land he granted out to his villeins, or slaves, permitting them, as an act of pure grace and favour, to enjoy such lands at his pleasure; but sometimes enjoining, in return for such favour, the performance of certain agricultural services, such, for instance, as ploughing the demesne, carting the manure, and other such servile work. The lands remaining after this parcelling out, generally the poorest, formed the waste lands of the manor, over which rights of commons were enjoyed by the tenants. In this way arose a manor, of which it will be seen the tenants formed two classes, the freeholders and the villeins. Now for each of these classes a separate court was held—for the freeholders a Court Baron; for the villeins another called a Customary Court. In the former court the suitors were the judges; in the latter the lord only, or his steward.

In some manors the villeins were allowed to have life interests, but these grants were not extended so as to admit any of their children. Hence arose copyholds for life. Again, in other manors a much greater degree of liberality was shown by the lords; and on the death of a tenant, the lord permitted his eldest son, or indeed sometimes all his sons, or sometimes the youngest only, and afterwards other relations to succeed him by way of heirship; for which privilege, however, the payment of a fine was usually required on the admittance of the heir to the tenancy. Frequently it happened that the course of descent of estates of freehold was chosen as the model for such inheritances; but in many cases dispositions of the most capricious kind were adopted by the lord of the manor, and in course of time actually became the custom of the manor. And thus it was that copyholds of inheritance arose. Again, if a villein tenant wished to part with his own parcel of land to some other of his fellows, the lord would allow him to surrender or yield up again the land, and then, on the payment of a fine, would indulgently admit as his tenant, on the same terms, the other, to whose use and in whose favour the surrender had been made. Thus arose the method now prevalent at the present day, of conveying copyholds by surrender into the hands of the lord of the manor to the use of the purchaser, and the subsequent admittance of the latter. By long custom and continued indulgence that which at first was a pure favour gradually grew up into a right, and thus it came to pass that the will of the lord, which had of course originated the custom, came at last to be controlled by it.

The rise of the copyholder from a state of uncertainty to certainty of tenure appears to have been very gradual. Britton, who wrote in the reign of Edward I., thus describes this tenure under the name of Villeinage. “Villeinage is to hold part of the demesnes of any lord entrusted to hold at his will by villein services to improve for the advantage of the lord.” And he further adds that “In manors of ancient demesne there were pure villeins of blood and of tenure, who might be ousted of their tenements at the will of their lord.”

In the reign of Edward III. a case occured in which the entry of a lord on his copyholder was adjudged lawful, because he did not do his services, by which he broke the custom of the manor, which seems to show that even at that time the lord could not have ejected his tenant without a cause. And later, in the reign of Edward IV., the judges gave to copyholders a certainty of tenure by allowing them an action of trespass on ejectment by their lords without just cause. “Now,” says Sir Edward Coke, “copyholders stand upon a sure ground; now they weigh not their lord’s displeasure; they shake not at every sudden blast of wind; they eat, drink, and sleep securely; only having a special care of the main chance, namely, to perform carefully what duties and services soever their tenure doth exact and custom doth require; then let lord frown, the copyholder cares not, knowing himself safe.”

In the present day a copyholder has as good a title as a freeholder; in some respects a better; for all the transactions relating to the conveyance of copyholds are entered on the court rolls of the manor, and thus a record is preserved of the title of all the tenants.

Since the passing of the statute of Quia Emptores, 18 Edward I., it has not been lawful to create a tenure of an estate in fee simple; so that every manor bears date at least as far back as that reign; to this rule the few seignories, which may have been subsequently created by the king’s tenants in capite, form the only exception.

The name “manor” is of Norman origin, but the estate to which it was given existed, in its essential character, long before the Conquest; it received a new name as the shire also did, but neither the one nor the other was created by this change. The local jurisdiction of the thegns who had grants of sac and soc, or who exercised judicial functions amongst their free neighbours, were identical with the manorial jurisdictions of the new owners.

Although long continued custom has now rendered copyholders quite independent of the will of the lords, yet all copyholds, properly so called, are still expressly stated, in the court rolls of manors, to be holden at the will of the lord; and, more than this, estates in copyholds are still liable to some of the incidents of mere estates at will.

In ancient times the law laid great stress on the feudal possession or seisin of lands, and this possession could only be had by the holder of an estate of freehold, that is, an estate sufficiently important to belong to a free man. Now, as we have seen, copyholders in ancient times belonged to the class of villeins or bondsmen, and held, at the will of the lord, lands of which the lord himself was alone feudally possessed. The lands held by the copyholders still remained part and parcel of the lord’s manor; and the freehold of these lands still continued vested in the lord; and this is the case at the present day with regard to all copyholds. The lord of the manor is actually seised of all the lands in the possession of his copyhold tenants.

The lord, having the legal fee simple in the copyhold lands comprised in his manor, possesses all the rights incident to such an estate, controlled only by the custom of the manor, which is now the tenant’s safeguard. Thus he possesses a right to all the mines and minerals under the land, and also to all timber growing on the surface, and this even though the timber may have been planted by the tenant. However, it must be borne in mind that these rights are somewhat interfered with by the rights which long continued custom has given to the tenants, for the lord cannot come upon the lands to open his mines, or to cut his timber, without the copyholder’s leave.

A copyholder cannot commit any waste, either voluntary, by opening mines, cutting down timber or pulling down buildings; or permissive, by neglecting to repair. For the land, with all that is under it or upon it, belongs to the lord of the manor; the tenant has nothing but a customary right to enjoy the occupation; and if he should in any way exceed this right, a cause of forfeiture to his lord would at once accrue.

By the customs of manors, on every change of tenancy, whether by death, sale, or otherwise, fines of more or less amount become payable to the lord. By the customs of some manors the fine payable was anciently arbitrary; but now in modern times, fines, even when arbitrary by custom, are restrained to two years’ improved value of the land after deducting quit rents.

In some manors a fine is due on the change of the lord; but in this case the change must always be by act of God, and not by any act of the party.

The tenure of an estate in copyholds involves an oath of fealty from the tenant, and together also with suit to the customary court of the manor. Another incident of the tenure, and this sometimes a very profitable one, is the escheat to the lord on failure of heirs.

Before the abolition of forfeiture for treason and felony, the lord of a copyholder had a great advantage over the lord of a freeholder in this respect, that, whilst freehold lands in fee simple were forfeited to the crown by the treason of the tenant, the copyholds of a traitor escheated to the lord of the manor of which they were held.

One of the most curious incidents of the tenure is the right of the lord, on the death of a tenant, to seize the tenant’s best beast, horse, or other chattel under the name of a heriot. Now it would appear that heriots were introduced into England by the Danes. The heriot of a military tenant was his arms and habiliments of war, which belonged to the lord for the purpose of equipping his successor. And it would seem that in analogy to this purely feudal custom, the lords of manors usually expected that the best beast or other chattel of each tenant, whether he were a freeman or a villein, should on his death be left to them. In old wills of copyholders we constantly find this legacy to the lord of the manor the first bequest mentioned: in fact the tenant really making a bounty of what was actually an obligation. In cases where the tenant died intestate the heriot of the lord was taken in the first place out of his effects, unless indeed the lord seized the whole of the goods, which not unfrequently happened in days before custom had so completely controlled the rights of the lord, and at the same time protected the interests of the tenant. Heriots survive to this day in many manors, a true badge of the ancient servility of the tenure. Now, however, the right of the lord is confined to such a chattel as the custom of the manor, grown into a law, will permit him to take; and in most cases the heriot consists not of a chattel at all, but merely of a money payment.

The mode in which copyhold land is transferred from one person to another still retains much of the primitive simplicity of bygone ages. The copyholder personally surrenders the lands into the hands of the lord, generally through his steward, and this surrender is evidenced by the delivery of some article varying according to the custom of the particular manor: in some manors the surrender is effected by the delivery of a rod, in others of a straw, and again in others by a glove. The surrender having been duly effected, the purchaser is admitted, and the various documents used are all entered upon the court rolls of the manor. The steward is the person who makes the entries on the court rolls, and they are kept in his custody, but subject however to the right of the tenants to inspect them. The steward also usually presides at the copyhold courts of the manor.

A special custom is required to entitle the wife of a copyholder to any interest in her husband’s lands on his death intestate. Where such a custom does exist the wife’s interest is termed her freebench, and it consists generally of a life interest in one-third part of the lands of which the husband died possessed. Freebench in most manors differs from the ancient right of dower in this most important particular, that whilst the widow could claim her dower out of all the freehold lands which her husband actually possessed at any time during the marriage, the right to freebench does not in general attach until the actual death of the husband, and of course may be defeated by a devise of lands by the husband’s will. From this it will be seen that freebench is no impediment to free alienation by the husband of his copyholds without any consent on the part of his wife. To this general rule, however, the manor of Cheltenham forms an important exception; for by the custom of this manor the widow’s freebench attaches in the same way as the ancient right of dower did on all the land of copyhold tenure, of which the husband at any time during the marriage had been possessed.

Centuries have robbed the manor of much of its importance; most of the honour and prestige has decayed which once surrounded the lord, his power has become controlled by long continued custom, so that the copyhold tenants are practically independent of him, and have as good a title to their lands as freeholders. Little remains beyond the most prominent of the old formalities, which at one time gave dignity and importance to the lord of the manor and his court. Most of the dealings with copyhold land are now effected out of court, and although the courts are still held at the customary periods, they are for the most part an empty formality, their glamour gone, yet still possessing an especial interest of their own as evidence of the surviving of ancient customs, which have practically remained unchanged through the roll of centuries.

+

The Operational Floating Current Conveyor and Its Application

A five-port general-purpose analog building block, termed as an Operational Floating Current Conveyor (OFCC), is described. The OFCC combines the features of current feedback operational amplifier, second-generation current conveyor and operational floating conveyor. An implementation scheme of the OFCC is described and its terminal operational characteristics are used to yield a working device. The OFCC is then used as a single block to realize the current conveyors (CCII+ and CCII-) as well as the four basic amplifiers (i.e., voltage, current, transconductance, and transresistance amplifiers). The applications of the OFCC are presented and discussed. In the field of the analog filter synthesis, we proposed a new active universal second order filter using OFCC. It has three inputs and one output employing two OFCC, two capacitors and three resistors and can realize lowpass, bandpass, highpass, notch, and all pass filters from the same configuration. The proposed universal filters offer the following advantageous features: using active elements for the same type (OFCC). No requirement for component matching or cancellation constraints, which makes the filter easier to design, orthogonal adjustment of ω0 and Q and the circuits have low sensitivity. The simulation and experimental results are obtained and discussed.

Read More: https://www.worldscientific.com/doi/abs/10.1142/S0218126606003118

Link to the list of other Peer Journal Publications

Yehya Ghallab, Wael Badawy, M. Abo El-Ella, and M. Elsaid, “The Operational Floating Current Conveyor and Its Application“, Journal of Circuits, Systems and Computers, Volume 15, No. 3, June 2006, pp. 351–372.

+

On Symbols.

By George Neilson.

 

THE wayward fancies of mankind are well illustrated in the diversity of symbolic observances, some never losing their meaning, some absolutely unintelligible in their historic form, and some as much characterised by a befitting dignity, as others are by the want of it. All once were self-explanatory and possessed a measure of propriety proportioned to the state of the people amidst whom they originated. But tradition is long, centuries elapse, each modifying a ceremony, and when the procedure emerges within the knowledge of record, it has often so lost touch with its surroundings, that it is hopeless to speculate how it arose.

Symbols are drawn from and applied to every field of human activity. Of course in a general sense man expresses himself only so, and a regular alphabet is but a comparatively trifling advance on the language of signs. What we call civilization, is at bottom little more than a clear recognition of certain symbols of government. The Queen’s crown, the Judge’s ermine, the Mayor’s mace, what are they else? The sceptre is only a glorified stick, of which the policeman’s baton is a humbler shape. Each embodies the great thought that behind it stands a nation’s determination to be ruled by law.

In the history of law, symbol and the traces of symbol meet us at every turn. The middle ages teemed with them. Roman law had bequeathed not a few. Perhaps the most wondrous of them all is one that has long ceased to have any legal connection, although its mark is all-powerful over civilisation. How daring was the imagination which prompted the choice, for the heraldic badge of Christianity, of the dread emblem of capital punishment by crucifixion! In the pure domain of the law of the early and middle ages, a perfect wilderness of symbols presents itself to eyes which strive to explore the origins of institutions.

Law is ever beset by a tendency towards formalism, and in early times a severe insistence upon ceremony, no doubt, gave prominence and prescriptive sanction to symbolic acts. Law and custom after all only mean that the way things were done yesterday is the safest way of doing them to-day. The acceptance of a common form implies a very large public consent, which is equally necessary to its abrogation, once it is accepted. No small part of its value lies in its certainty, “certainty which,” Coke well says, “is the mother of quiet and repose.”

Hence the fixity and longevity of many emblematic methods of performing acts affecting status or property rights. The constitution or discharge of slavery, or the transfer of a slave from one master to another, had a variety of set forms. A freeman might deliver himself to serfage by putting a leathern thong upon his neck. When a church was the donee, the ceremony might take place at the altar, and the man present himself there with cords round his throat. “Thus he offered himself,” says an old record, “to the Almighty Lord.” A coin or two on the head was also a customary part of the process. In the manumission or liberation of the slave, these coins struck off the head served the purpose of declaring him free, as did the companion symbol of open doors, or the placing him at four cross roads, and bidding him go whither he would. Another common symbol of enfranchisement was the delivery of an arrow, thought to denote the right confined to freemen of bearing arms.

Even a short account of legal symbols would make a very large treatise. Single instances such as the ring, the staff, the glove, and the horn would each furnish material for an elaborate monograph. The theme would call for a discussion of the great war of investitures, and would touch very many points of ecclesiastical, civil, and criminal law and history. The scope of the present unambitious article is only directed to a few illustrations in relation to the transfer of land, the act of divesting the old proprietor and clothing the new with his rights. Although such symbols usually had a connexion with the subject conveyed, there are many types in which that connexion is not readily traceable. Why for example amongst the Saxons should a resignation of all interest in an estate have been made by a gesture with curved fingers? One can understand why a sod should be so often a token, but why does the glove play so large a part in Merovingian and Carolingian conveyancing? Was it, indeed, as German scholars speculate, because the donor metaphorically took it off and the donee put it on, making his the covered hand, the vestita manus, that would defend the land conveyed? How came an eleventh century magnate to attest his renunciation of justiciary rights to a monastery “by cutting off the top of the silk band by which his fur robes were fastened to his breast, and with that segment re-investing three monks therein?” In this case a portion of that silken band was carefully sewn up, as an adminicle of evidence, in the writ recording the transaction. How again came it that a claim of feudal service might be departed from by the delivery and placing of a wand (virgula) upon the altar? All these are much more personal symbols than real. They are mainly guarantees of the grantor’s good faith. They do not seem to be primarily emblems of possession. The contrast between these two classes will be best appreciated by considering types of the latter.

When a purchaser proceeded to set up fresh boundary marks, or to take a spade and dig, or when he received delivery of a sod with grass or shrubbery upon it, or lifted from the ground the charter granted by the seller with amongst other things a sod laid thereon, the act of seisin, the formal occupation is visibly completed. Of this class of symbol, the sod (cespes) is probably the best and most typical for a few words of illustration. We read of litigants laying judicial claim to land in the mall or public court by putting their spears into a sod, representative of the subject in dispute. We hear of the sods being cut in the shape of bricks, and of their being preserved as memorials, with the twigs growing in and incorporated with them. We hear of sods offered on the altar when the grant of land was being made to a church. We hear of transfer from one vassal to another being accomplished by the grantor delivering the sod to the over-lord, and the latter passing it on to the grantee.

Of all the symbols employed in connection with feoffments, however, the rod (festuca) had the widest vogue on the continent. Not that it was restricted to transactions in land; it was a more or less lineal descendant of the Roman stipulation, a contract visibly expressed by the parties breaking a straw between them. Under Charlemagne a renunciation by certain priests was made by them “holding straws in their hands and casting them from them before God and his angels.” Later this appears as a recognised method of renunciation, but with a rod substituted for the straw. In some cases the fact of renunciation is emphasised by the rod being not only thrown to the ground by the resigner, but trodden under foot when there. The rôle of the festuca was peculiarly important amongst the Frankish peoples.[3] Galbert of Bruges, a Flemish twelfth century historian, states that the counts of Flanders gave investitures to their vassals, after receiving their fealty and homage, by a wand (virgula) held in hand, and he has a dramatic passage describing how the people of Bruges, in token of their renunciation of their feudal bond to Hacket the castellan, “picking up bits of stick exfestucated their homage and fealty,” i.e. cast the rods from them, and so doing severed all connexion with their former chief.

In England and in Scotland, this rod symbol (fustis et baculus) also played a large part. Bracton referred it specially to land without houses. Tenure by the verge, a species of copyhold, had its name, we learn from Littleton, from un petite verge, delivered by the old tenant to the steward or bailiff of the manor, who re-delivered it to the new holder. Jordan Fantosme tells us that when Brien, messenger of Ranulf Glanvil, in 1174, announced in Westminster the capture of the Scottish King at Alnwick, Henry II. rewarded him for his good news by handing him a stick (bastuncel), which vested him in ten librates of land. In Scotland the feudal resignation by a vassal to his overlord for the re-investure of a fresh owner was effected by “staff and baton” (fustis et baculus), and references to those symbols occurred in every day conveyancing until far into the present century. Indeed this picturesque ritual was, strictly speaking, not abrogated, although made unnecessary, by the Act 8 and 9 Victoria ch. 35.

The commonest conveyancing symbol for land in England was the formal delivery of turf or twig of the ground conveyed, made by a representative of the grantor, to a representative of the grantee. The most familiar in Scotland was the handing over of “earth and stone.” This latter was the normal form of seisin, and its history goes far back, not only in Scotland, but on the continent as well. A curious Saxon legend attests this. Widukind narrates that some Saxons, having landed from their ships in Thuringia, one of them, wearing a golden torque and bracelets, met a Thuringian, who asked if he would sell his ornaments. The sly Saxon entered into an odd transaction; the Thuringian gave him in exchange for his gold, a lapful of soil. The Thuringians rejoiced exceedingly over the smart bargain their countryman had made, but changed their tune when soon afterwards the Saxons claimed the land as theirs, purchased with their own gold, and by force of arms made good the demand.

Our chronicles have a good many stories about symbols. In the Norman Brevis Relatio, a sketch of the origin of William the Conqueror, is told of his grandfather, Duke Richard the Good, that once when staying at a monastery, after prayer in the morning he laid a spindle on the altar. Upon being asked what it meant, he named the manor which he had by so homely a symbol bestowed for the good of his soul. When the infant William came into the world, it was said,—and afterwards noted as prophetic—that when they laid him down upon some straw, the little hands each clutched a handful. Acquisitive tendencies were foreshadowed! The Roman de Rou tells that in 1066, when William landed in England, he stumbled and fell, an omen which for the moment disconcerted his followers, but rising with a shout, he swore by the splendour of God that with his two hands he had taken possession of the land. Prompt to catch the occasion, one of his men ran forward to a cottage, tore a handful of thatch from the roof, and passed it to his chief, with the cry, “Receive this seisin,”—quasi-ceremonial words which with William’s pious, “God be with me,” the curious may compare with the formalities of English livery in deed, as described (sec. 59), in Coke upon Littleton.

The normal symbol of seisin for a house in England, was (before the Act 7 and 8 Victoria ch., 76, superseded these archaic ceremonies), was the ring or hasp of the door, known in Scotland for houses in burghs as “hasp and staple.” In the latter country also, there were a good many special types of symbol characteristically appropriate to seisin in special kinds of property. Thus for mills “clap and hopper,” for fishings “net and coble,” for teinds (Anglice tithes) a sheaf of corn, for the patronage or advowson of a church a psalm-book and keys, attained the figurative purpose requisite. There were many others less familiar amongst them, one, a hat, worthy of a few words all to itself. Our own generation may not regard this as a particularly dignified symbol, but there is a cloud of witnesses to shew its very various applicability. The priest’s cap or biretta was sometimes employed to instal him in a chaplainry or benefice. And apart from the place of the hat in the regulations of the tilting ring, it was occasionally used in Scotland as a symbol in connection with what were known as heirship goods. But it had in the twelfth century been accorded the very loftiest use to which secular symbolism could be turned. In 1175, King William the Lion, taken prisoner the year before, relinquished the independence of Scotland, and did homage to the English King at York, as a condition of his liberation. The contemporary records are silent regarding symbolic details, but in 1301 Edward I. stated in his letter to the Pope that “in token of his fealty, William the King of Scotland, had, on the altar of St. Peter’s, at York, offered his cap (chappelus), lance, and saddle, which until this day remain and are preserved in said church.” Any incredulity which a fair-minded Scot can entertain, regarding this allegation that the freedom of his country was once symbolically surrendered in King William’s cap, will be materially lessened, and Scottish patriotism so far consoled, by the recollection that under very similar circumstances the realm of England was in 1193 given away with the bonnet (pilleus) of the captive Richard I., who, thus (as Hoveden tells us), gave investiture of his kingdom to his arch-enemy, the Emperor Henry VI. This was, however, only formal: the Emperor at once re-invested King Richard in his realm with a double crown of gold, though subject to an annual tribute of £15,000—a business transaction painfully illustrative of the Christian chivalry of the Crusades.

The annals of Scotland boast one instance of a royal symbol much more regal than either of these two. About the beginning of the year 1124, King Alexander I., restoring by charter to the Bishopric of St. Andrews an extensive tract of land, completed the grant according to Andrew of Wyntoun (vii., 5), in a truly stately fashion. He—

Gert than to the awtare bryng

Hys cumly sted off Araby

Sadelyd and brydelyd costlykly

Coveryd with a fayre mantlete

Off precyous and fyne welvet

Wyth his armwris off Turky

That pryncys than oysid generaly

And chesyd mast for thare delyte

Wyth scheld and spere off sylvyr qwhyt.

It was a special occasion, for Bishop Robert’s appointment, which had led to the grant, was a Scottish victory over the pretensions of the See of York. There is an appeal to the imagination so strong in the scene, that, in spite of the interval of 300 years betwixt the event and this oldest record of it, one is slow to offer any criticism on the charger; more especially as the entire verity of the silver spear is corroborated by Walter Bower’s enshrining in his Scotichronicon the fact that in the fifteenth century it was doing duty as the shaft of the cross in the Cathedral. Yet the unexampled symbol, coupled with the analogy from York in 1175, compels the suggestion, that perhaps during these 300 years an original capellus have been mis-read as caballus, or mistaken for Scottish capul, and thus by the magic of mistranslation, a king’s cap may have been transmuted into an Arab steed.

Whilst of course a crown was the standard symbol of investiture for a kingdom, inferior rights of principality were often typified by other things, such as a sword, a spear, or a banner. And as feudal forms were observed in the bestowal, so were they sometimes in the taking away. England dispensed with several of her monarchs, but apparently in no case was a deposition attended by the feudal solemnities. In Scotland when, in 1296, King John Balliol was pulled out of the throne by the same hands as had placed him in it, Edward I. spared his vassal little of the indignity of the situation. Balliol, deprived of his royal ornaments, with the ermine stripped from his tabard, resigned his realm by the symbol of a white wand.

Than this Jhon tuk a quhyt wand

And gave wp in till Edwardis hand

Off this Kynryk all the rycht.

No Scottish historian has noticed the absolute legal propriety of this, and it is worth noticing. By contemporary law (Britton, ii., 22), une blaunche verge was the recognised symbol of disseisin by consent. The thirteenth century was very particular, even in small things, about its law. Disseisin, provided for by statute of 1429, in disputed successions to real property, and known to Scotland as the breaking of seisin, was symbolically affected—frangendo discum—by the curiously expressive act of breaking a dish or dishes, with fire underneath.

+

Trials in Superstitious Ages.

 

By Ernest H. Rann.

 

IN superstitious ages, when belief in the power of the law to adjust all quarrels, to hold the balance equally between man and man, and to accord to each one his rights, was less prevalent than it is at the present day, disputants naturally resorted to other tribunals for the settlement of their claims. A perfect system of law was impossible; what law existed was arbitrarily administered, often for the benefit of the most powerful litigant, and the claimant with only justice on his side often had the mortification of seeing a verdict given against him. During the development of a system of law-giving, when the accumulated experience of humanity had not sufficed to produce perfection, man in his darkness, his ignorance, and superstition, turned to the supernatural, and devised certain ceremonies by which the judgment of God might be evoked to demonstrate the guilt or innocence of the accused.

The antiquity of the ordeal, as it was called, cannot be measured. Such a form of trial is found to have existed in the earliest ages, and even now traces of it linger among savage tribes of the earth. In Africa especially the ordeal is well known. During his travels among the negro tribes north of the Zambesi, Dr. Livingstone encountered the curious practice of the “mauvi,” which consisted of making all the women of a tribe drink an infusion of “goho,” for the purpose of ascertaining which of them had bewitched a particular man. The accused women were drawn up in a row before the hut of the king, and the draught administered to them. Those who were unable to retain the horrible decoction, and vomited, were considered innocent of the charge: those who were purged were adjudged guilty, and put to death by burning.

The Calabar bean is also used by the natives of Africa in the form of an emulsion as an ordeal for persons accused of witchcraft, proof of innocence consisting of ability to throw off the poison by vomiting. Among the Barotse tribes the process is conducted by deputy, the testing liquid being poured down the throat of a dog or cat, and the accused person being treated according to the effect produced on the animal. Among the Dyak tribes lumps of salt are thrown into a bowl of water by the accuser and accused, and judgment is given against the owner whose lump disappears first. Another method adopted by the Dyaks is for each of the two parties to choose a mollusc, and to squeeze over it a few drops of lime-juice; the owner of the mollusc which moves first under the acid stimulant losing the case. Ratzel mentions that among the Malay tribes ordeals by fire, ducking, pulling a ring out of boiling water, or licking red-hot iron, are still frequent. Where the ordeal fails to produce the desired result, wager of battel, in reality another form of ordeal, is resorted to. Among the Tagals it is usual to light a consecrated candle, and to consider the person guilty of the crime under consideration to whom the candle flame is blown during the performance of the ceremony. The Igorrotes have a more painful method of fixing guilt. The accuser and the accused are placed together; the backs of their heads are scratched with a sharply-pointed bamboo stick, and the man who loses most blood also loses his case.

In Hawaii ordeals are administered by the priests, the suspected person being compelled to hold his hands over consecrated water, and adjudged guilty if the liquid trembles in the vessel while the priest looks at him. The Siamese have a form of ordeal which consists of making the two parties to a suit swallow consecrated purgative pills, the man who retains them for the greater length of time winning the case.

Even among the comparatively enlightened races of the peninsula of India, ordeals of the most elaborate and curious character are practised at the present time. Warren Hastings mentions that in his day no fewer than nine forms were in use among the Hindoos. The ordeal of the balance was commonly employed, and is still in force in certain districts. The beam is adjusted, and both scales made perfectly even. After the accused has been bathed in sacred water, and the deities worshipped, he is placed in the scale-pan and carefully weighed. When he is taken out the Pandits pronounce an incantation, and place round his head a piece of paper setting forth the charge against him. Six minutes later he again enters the scale, and the balance is called upon to show his fault or innocence. If he weigh more than before, he is held guilty; if less, innocent; if exactly the same, he must be weighed a third time, when, according to the Mitácsherá, a difference in his weight will be observable. Should the balance break down, the mishap would be considered as proof of the man’s guilt.

The ordeal of the balance is not altogether unknown in English history, for an incident is recorded in which Susannah Haynokes, of Aylesbury, was accused of bewitching her neighbour’s spinning-wheel, and preventing it from working properly. Susannah loudly protested her innocence, and demanded an ordeal to prove it. She was taken to the church, and weighed in a semi-nude condition against a copy of the Bible, and being able to outweigh the Scriptures, was considered to be innocent of the offence charged against her. Possibly it never occurred to the owner of the spinning-wheel that lack of oil was the cause of its refusal to go round.

Among other ordeals in use by the Hindoos is that of iron, the accused being required to lick a red-hot bar of the metal. If his tongue be burnt, he is considered guilty, if not, he is reckoned innocent, but it cannot be supposed that among tribes addicted to this practice the injury to the tongue is considered sufficient punishment for the offence with which the suspect is charged. The poison ordeal, employed also, it may be noted, by the Hovas of Madagascar, is commonly practised. A small quantity of vishanága, a poisonous root, is mixed with clarified butter, which the accused must eat from the hand of a Brahman. If the poison produce no visible effect, he is absolved; otherwise, condemned. In other cases the hooded snake called nága is placed in a deep earthen pot, from which the accused has to take a ring, seal, or coin without being bitten, when he is considered innocent. In trial by the Cósha the accused is made to drink three draughts of water in which images of the Sun, of Dévì, and other deities have been washed. If, within fourteen days, he is afflicted with any form of sickness, he is considered guilty.

For the fire ordeal an excavation is made in the ground, and filled with burning pippal wood. Into this a person must walk bare-footed without hurt in order to prove his innocence. Hot oil ordeals are also in force, when the accused has to thrust his hand into the liquid without being burned; and chewing a grain of consecrated rice, which, if it comes from the man’s mouth dry or stained with blood, is considered proof of his guilt. At other times a silver image of the Genius of Justice, called Dharma, is thrown with an image of iron or clay, called Adharma, into an earthen jar; and the accused is acquitted if he bring out the silver image, but condemned if he draw forth the iron.

The history of the middle ages furnishes numerous examples of ordeals employed in the settlement of disputes, which in the absence of a strong and impartial system of law-giving, found great favour with the people of all ranks. They were peculiarly distinguished by the appellation of Judicium Dei, or judgments of God, and sometimes called vulgaris purgatio. The law of the Church sanctioned the ordeal throughout Europe for a considerable period, and faculties were freely given by the clergy for the performance of these strange ceremonials. Indeed, the whole business, as a judgment of God, was frequently conducted by the servants of the Church, always in consecrated ground, and the sacred edifice itself was occasionally requisitioned in order to add greater solemnity to the proceedings. The ordeal of fire, practised, curiously enough, by the Greeks in the time of Sophocles, was allowed only to persons of high rank. The accused was required to carry a piece of red-hot iron for some distance in his hand, or to walk nine feet, bare-footed and blind-fold, over red-hot ploughshares. The hands or feet were then immediately bound up, and inspected three days afterwards. If, on examination, no injury was visible, the accused was considered innocent; if traces of the burning remained, he was reckoned guilty, and received punishment commensurate with his offence, without any discount for the harm he had already suffered.

The most notable historic instance of this form of ordeal is that of Queen Emma, mother of Edward the Confessor. She was accused of a criminal intrigue with Alwyn, Bishop of Winchester, and condemned to the ordeal of fire, which, on this particular occasion, took the form of nine red-hot ploughshares, laid lengthwise at irregular intervals, over which she was required to walk with bandaged eyes. She passed successfully through the severe trial, and at the conclusion innocently asked when the ordeal was about to begin. The Queen’s innocence was, to the popular mind, established more substantially than would have been possible in any existing court of law. She was not the only gainer by the restoration of her reputation, for in consideration of the success which had attended her, she settled twenty-one manors on the Bishopric and Church of Winchester.

In the Eastern Empire the fire ordeal was largely used by the Emperor Theodore Lascoris for the discovery of the origin of the sickness with which he was afflicted. His majesty attributed the malady to magic, and all suspected persons were required to handle red-hot iron in order to establish their guilt or innocence, “thus joining,” as an ancient scribe exclaims, “to the most dubious crime in the world the most dubious proof of innocence.”

Fire, as we have said, was employed for persons of high rank: those of baser degree, especially bondsmen and rustics, were tried by the ordeal of boiling water. “I will go through fire and water for my friend” was a common expression in the middle ages, and, though having lost its original significance, the saying has persisted to the present time as a declaration of self-sacrifice. The accused person was required to take a stone from a pan of boiling water, to insert the hand and wrist into the liquid, and in case of the triple ordeal, to plunge the arm in up to the elbow. When cold water was employed, and in cases of witchcraft this was generally resorted to, the suspect was flung into a river or pond. If he floated without appearance of swimming, he was pronounced innocent; if he sank, he was condemned as guilty—rather a superfluous proceeding, considering that the man was in all probability already drowned.

It would be going too far to assert that in all cases these ordeals were carried out with the strictest impartiality and consideration for the ends of justice. Means were not unknown to circumvent the peculiar forms of the trial, and precautions were often taken by the clergy, as might have been done in the case of Queen Emma, to protect those whom they desired to clear of suspicion. It is a well-known fact that white-hot iron may be licked with impunity, and the Mevleheh dervishes are proficient in the trick of holding red-hot iron between their teeth. Sometimes cold iron, painted red, was employed, and at others the fire reduced in temperature at the critical moment, the suspect receiving only such injury as would heal in the three days allowed before his hand was examined. Artificial preparations were frequently employed, while the suspect had at times the option of going alone into the church, and in all cases of keeping the crowd of spectators at a distance, which made minute inspection of the proceedings impossible.

Another form of ordeal was the judicium crucis, or trial of the Cross, employed largely in criminal cases. When an accused person had declared his innocence on oath, and appealed to the judgment of the Cross, two sticks were prepared precisely like one another. The figure of the Cross was cut upon one of these sticks, and the other left blank. Each of them was wrapped in fine white wool, and laid upon the altar or the relics of the saints, after which a prayer was uttered that God might discover by unmistakable signs whether the prisoner was innocent or guilty. The priest then approached the altar, took up one of the sticks, and uncovered it. If it happened to be the stick marked with the cross, the prisoner was pronounced innocent; if it were the other, he was condemned as guilty. A different form of this ordeal was adopted when the judgment of the Cross was invoked in civil cases. The judges and all parties to the suit assembled in the church. Representatives, generally the youngest and strongest priests, were then chosen, and required to stand one on each side of a crucifix. At a given signal they stretched out their arms at full length, so as to form a cross with their body, and in this painful posture they continued to stand during divine service. The party whose representative dropped his arms first, or shifted his position, lost his cause. History records a dispute over a monastery, between the Bishop of Paris and the Abbot of St. Denis, which was settled in this manner. A crowd assembled, and arranged bets on the result, but those who supported the Bishop’s man were sadly disappointed, for he dropped his arms at an early stage, and lost the cause of his employer. The ordeal of the Cross was abolished by Louis de Debonnaire in 816, on the ground that it was irreverent in character.

Ecclesiasticism also played a prominent part in the ordeal of the corsnedd, to which persons accused of robbery had to submit. The corsnedd was a piece of bread made of unleavened barley, to which cheese made of ewe’s milk in the month of May was added. Over the whole, one ounce in weight, a form of exorcism was uttered, desiring of the Almighty that the corsnedd might cause convulsions and paleness, and find no passage, if the man were really guilty, but might turn to health and nourishment if he were innocent. The practice is strongly remindful of the trial of jealousy in use among the Israelites, by which an unfaithful woman was compelled to drink holy water containing dust of the floor of the tabernacle, the belief being that she would be stricken with illness if she were guilty. The corsnedd was given to the suspected person, who at the same time read the sacrament. Godwin, Earl of Kent, was, in the reign of Edward the Confessor, accused of murder, and forced to the ordeal of the corsnedd, when, according to ancient chroniclers, the consecrated food stuck in his throat, and caused his death. Both the expressions, “I will take the sacrament upon it,” and “May this morsel be my last,” are supposed to have been derived from this curious form of law-giving. A somewhat similar custom is in vogue in Russia at the present day. Balls of bread are made and dropped into consecrated water, the priest meanwhile reciting the formula:—“Ivan Ivanoff, if you are guilty, as this ball falls to the bottom, so your soul will fall into hell.” As a rule the culprit confesses immediately. In Ceylon, also, a similar form of ordeal is by no means unusual. A man suspected of theft is required to bring the person he holds in greatest affection before the judge, and placing a heavy stone on the head of his substitute, say, “May this stone crush thee to death if I am guilty of the offence.” The Tartar sets a wild bear and a hatchet before the tribunal, saying as he does so, “May the bear devour me, and the hatchet chop off my head, if I am guilty of the crime laid to my charge.”

Another form of ordeal which was cherished and practised with assiduity was that of the bier, founded on the belief that the body of a murdered man would show signs, by bleeding or movement, when his assassin approached. The accused had to place his hand on the naked breast of the corpse, and declare his innocence, though the slightest change in the body was considered proof of his guiltiness. This method of finding out murderers had its origin, it is believed, in Denmark, where it was in the first instance adopted by King Christian II. for the discovery of the murderer of one of his courtly followers. The belief has survived to a certain extent to the present day, for even English peasants still expect all persons present at a funeral to touch the body in proof of their bearing no ill-will towards the dead man.

Not so frequently employed, but still occasionally met with in ancient history, was the ordeal of compurgation, where the innocence of the accused was sworn to by his friends, and judgment went against the party whose kindred refused to come forward, or who failed to provide the necessary number of compurgators. It was a conflict of numerical strength, and the higher number carried the day.

Another custom, still surviving, was to tie a key in a Bible opened at Psalm L, verse 18, “When thou sawest a thief, then thou consentedst with him,” and balance the whole, the belief being that the book would turn in the hands of a guilty person.

Challenging the accuser to mortal combat was a proceeding which found much favour with the warlike spirit of the middle ages. Of course it was considered that Providence would defend the right, even if a miracle were needful, but nevertheless each party placed considerable reliance on his own strength of arm and fighting skill. These judicial combats were in ancient times practised among the Jews, and were also common in Germany in remote ages, though they do not find mention in Anglo-Saxon laws, and were apparently not in use in England until after the Norman Conquest. In Germany a bier was placed in the midst of the lists, accuser and accused stood respectively at the head and foot, and remained for some minutes in profound silence before they commenced fighting. Civil, criminal, and military cases were, in the absence of sufficient direct evidence, decided by means of the judicial combat or wager of battel. The offended party had the right to challenge his accuser to settle the dispute by force of arms, and the forms and ceremonies connected with the trial are well illustrated in the opening scenes of “King Richard II.” The combat took place in the presence of the court itself, Heaven being expected to give the victory to the innocent or injured party. It was commonly resorted to in charges of treason, as in the above-mentioned dispute between Henry Bolingbroke and Thomas Mowbray, when the ceremonies were of an imposing character. As in the majority of ordeals, deputies could be chosen to perform the requisite duties, but the principals were in all cases answerable for the consequences. No commoner was allowed to challenge a peer of the realm, nor could the citizens of London, for some obscure reason,

indulge in these popular forms of legal administration. Each of the combatants professed his willingness to make good his claims, body for body—

“For what I speak

My body shall make good upon this earth,

Or my divine soul answer it in heaven.”

Neither sorcery nor witchcraft had to be employed, and the battel was to continue until the shades of evening had fallen, and the stars appeared. If the accused were killed, his blood was attainted, but if he were only vanquished, he was immediately condemned to an ignominious death by hanging, providing he accepted his fate without demur. The defeated party, however, might crave his life, in which case he was allowed to live as a recreant, on condition that he retracted unreservedly the false statements that he had sworn.

At the Durham Assizes, on August 6, 1638, a wager of battel was offered and accepted, for deciding the rights to land at Thickley, between Ralph Claxton, demandant, and Richard Lilburne, tenant. According to an old chronicle, “the defendant appeared at 10 o’clock in the forenoon, by his attorney, and brought in his champion, George Cheney, in full array, with his stave and sandbag, who threw down his gauntlet on the floor of the court, with five small pieces of coin in it. The tenant then introduced his champion, William Peverell, armed in the same manner, who also threw down his gage.” But the champions, instead of being allowed to fight, were ordered to appear at the Court of Pleas in the following month. Legal arguments followed, and the trial by battel was eventually postponed indefinitely.

In criminal trials no deputies were allowed, and the parties were compelled to settle their quarrel in person, unless one of them was a woman, an infant, or a man over the age of sixty, or was afflicted with lameness or blindness. In the case of any of these disqualifications, trial by jury could be claimed and insisted upon. One of the most remarkable wagers of battel occurred in 1817. A young woman named Mary Ashford, living at Erdington, near Birmingham, was supposed to have been murdered early one morning when returning from a dance. Suspicion fell on Abraham Thornton, a partner of the previous night, who was tried for the crime and acquitted. Evidence for another trial was collected, and Thornton was appealed by William Ashford, the direct heir male of the murdered woman. But when the proceedings commenced, Thornton’s counsel took refuge under a very old Act, by which no man could be tried on a second charge of murder, on which he had been acquitted, except by wager of battel before the king, between the heir-at-law of the person murdered and the accused. The appellant, Mary Ashford’s brother, declined the combat on the ground of physical inferiority, and Thornton was discharged. Immediately afterwards the antiquated law was removed from the Statute Book.

This marked the end of trials by ordeal as recognised by law. The process of extermination had long been in progress, but popular opinion was against reform, and certain of these curious customs survived. Although the clergy had at first taken part in these ceremonials, and presided over them in church, they came in time to discountenance them. The canon law declared against ordeals as being the work of the Devil, and a decree to this effect was issued in the eighteenth canon of the fourth Lateran Council in November, 1215. Upon this authority it was thought proper, says Blackstone (as had been done in Denmark a century ago), “to disuse and abolish these trials entirely in our courts of justice by an Act of Parliament, Henry III., according to Sir Edward Coke, or rather by an order of the King in Council.” The actual date of the abolition of ordeals by fire and water was 1261. On the Continent these forms of trial had been abolished by civil and ecclesiastical law much earlier, although in 1498 an attempt was made to test the doctrine of Savonarola by means of a challenge from one of his disciples to a Franciscan friar to walk through a pile of burning wood. Old customs die hard, and the incident is a curious and interesting instance of the persistence of a popular form of trial even among the members of a party by which it had been condemned.