: The Law's Lumber Room by Watt Francis - Law Great Britain

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It is difficult to explain the distinction drawn between ordinary felony on the one hand and treason and misdemeanours on the other. Perhaps the explanation is that the last, being much lighter offences, were never made the subject of trial by ordeal, and that treason being a crime endangering the very existence of the State, a sort of necessity compelled the judge to proceed in the most summary manner. No student of English History needs to be reminded that a trial for treason resulted almost as a matter of course in a conviction for treason. Peers of the realm had many privileges, but they were not exempt from the consequences of standing mute. Nor, as already noted, were women. Perhaps it were unreasonable to expect a criticism of the system from contemporary judges or text writers; but what they did say was odd enough; they did not condemn pressing, but they highly extolled the clemency of the law which directed the Court to reason with and admonish the accused before it submitted him to this dread penalty.

I shall now give some examples of practice. Fortunately we have at least one case recorded in great detail, though, curiously enough, it has escaped the notice of an authority so eminent as Mr Justice Stephen.

Margaret Clitherow was pressed to death at York on Lady Day, March 25th, 1586, and the story thereof was written by John Mush, secular priest, and her spiritual director. Margaret's husband was a Protestant, though his brother was a priest, and all his children appear to have been of the older faith. Accused of harbouring Jesuit and Seminary priests, of hearing mass, and so on, she was committed to York Castle, and in due time was arraigned in the Common Hall. In answer to the usual questions, she said that she would be tried "by God and by your own consciences," and refused to make any other answer. It was sheer obstinacy: she was a married woman, and she could have lost nothing by going to trial. But she coveted martyrdom, which everybody concerned appears, at first at any rate, to have been anxious to deny her. It was plainly intimated that if she would let herself be tried she would escape: "I think the country," said Clinch, the senior judge, "cannot find you guilty upon the slender evidence." The proceedings were adjourned, and the same night "Parson Whigington, a Puritan preacher," came and argued with her, apparently in the hope of persuading her to plead; but he failed to change her purpose; the next day she was brought back to the Hall. Something of a wrangle ensued between herself and Clinch, and in the end the latter seemed on the point of pronouncing sentence. Then Whigington stood up and began to speak; "the murmuring and noise in the Hall would not suffer him to be heard;" but he would not be put off, and "the judge commanded silence to hear him." He made a passionate appeal to the Court "My lord," said he, "take heed what you do. You sit here to do justice; this woman's case is touching life and death, you ought not, either by God's law or man's, to judge her to die upon the slender witness of a boy;" with much more to the same effect. Clinch was at his wits' end, and went so far as to entreat the prisoner to plead in the proper form: "Good woman, I pray you put yourself to the country. There is no evidence but a boy against you, and whatsoever they do, yet we may show mercy afterwards." She was moved not a whit; and then Rhodes, the other judge, broke in: "Why stand we all day about this naughty, wilful woman?" Yet once again she was entreated, but as vainly as before; it was evident that the law must take its course; and "then the judge bade the sheriff look to her, who pinioned her arms with a cord." She was carried back to prison through the crowd, of whom some said, "She received comfort from the Holy Ghost;" others, "that she was possessed of a merry devil." When her husband was told of her condemnation, "he fared like a man out of his wits, and wept so vehemently that the blood gushed out of his nose in great quantity." Some of the Council suggested that she was with child. There seems to have been some foundation for the remark, at any rate, Clinch caught eagerly at the idea. "God defend she should die if she be with child," said he several times, when the sheriff asked for directions, and others of sterner mould were pressing for her despatch. Kind-hearted Whigington tried again and again to persuade her; and the Lord Mayor of York, who had married her mother , begged her on his knees, "with great show of sorrow and affection," to pronounce the words that had such strange efficacy. It was all in vain, so at last even Whigington abandoned his attempt, and "after he had pitied her case awhile, he departed and came no more."

Her execution was fixed for Friday, and the fact was notified to her the night before. In the early morning of her last day on earth she quietly talked the matter over with another woman. "I will procure," the woman said, "some friends to lay weight on you, that you may be quickly despatched from your pain." She answered her that it must not be. At eight the sheriffs came for her, and "she went barefoot and barelegged, her gown loose about her." The short street was crowded with people to whom she dealt forth alms. At the appointed place, one of the sheriffs, "abhorring the cruel fact, stood weeping at the door;" but the other, whose name was Fawcett, was of harder stuff. He "commanded her to put off her apparel," whereupon she and the other woman "requested him, on their knees, that she might die in her smock, and that for the honour of womankind they would not see her naked." That could not be granted, but they were allowed to clothe her in a long habit of linen she had herself prepared for the occasion. She now lay down on the ground. On her face was a handkerchief. A door was laid upon her. "Her hands she joined towards her face"; but Fawcett said they must be bound, and bound they were to two posts, "so that her body and her arms made a perfect cross." They continued to vex the passing soul with vain words, but at last they put the weights on the door. In her intolerable anguish she gave but a single cry: "Jesu! Jesu! Jesu! have mercy upon me!" Then there was stillness; though the end was not yet. "She was in dying one quarter of an hour. A sharp stone as much as a man's fist put under her back, upon her was laid a quantity of seven or eight hundredweight to the least, which, breaking her ribs, caused them, to burst forth of the skin." It was now nine in the morning, but not till three of the afternoon were the braised remains taken from the press.

Stories of violence and cruelty serve not our purpose unless they illustrate some point, and I shall but refer to two other cases.

A PASSAGE IN SHAKESPEARE

FINES AND RECOVERIES

"Is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dust? Will his vouchers vouch him no more of his purchases, and double ones too, than the length and breadth of a pair of indentures?" Thus the Prince of Denmark moralising in the graveyard scene in Hamlet over the skull of a supposed lawyer: with more to the same effect, all showing that Shakespeare had a knowledge of law terms remarkable in a layman, and that he used them with curious precision. In the huge body of Shakespearian literature there are special works on the fact, which has been used to buttress up the Baconian authorship theory . Again, it has been conjectured that the dramatist spent some time in a lawyer's office, and that phrases from the deeds he engrossed stuck in his memory. It is far more likely that, being the man of his age he was, he would read in and round the law as well as much else for its own sake, and that fines and recoveries were so odd in themselves, and so excellently illustrative of English history and procedure, that they fairly took his mighty fancy.

The mediaeval lawyer was usually a priest, and he had found those entails grievous obstacles in the way of the Church's aggrandisement. Perhaps, too, as the country grew in wealth, so rigid a law of settlement bore hard on an ever-waxing commercial class. To repeal the Statute seemed impossible, but the great landowners, while proof against force and impermeable to argument, were not hard to outwit. A legal complication passed their understanding; and this one, however brazen, had the patronage of many powerful interests. Thus, and thus only, may the fact of their acquiescence be explained.

And now let us trace out the steps in a common recovery with "double voucher." The judges had already made one preparatory breach in the law. A tenant in tail could dispose of his estate if he left other lands of the same value; for these his heirs held under the same conditions as the original property. The principle of this decision was ingeniously used as a lever to overthrow the system.

And now for a word on fines. These were so called for that they made an end of a controversy. They were simpler and even more ancient than recoveries. A fictitious action was begun by the purchaser against the vendor of an estate, wherein the latter soon gave in: the case was compromised, a fine was paid to the Crown, upon the Court giving its consent to this termination of the proceedings, and the record thereof became the purchaser's title. They were likewise used to bar entails, though they were not so effectual as recoveries. One of the first Acts of the Reform Parliament of 1833 was the Statute for the Abolition of Fines and Recoveries. It was a mere question of procedure, for the law itself remained unaltered: but disentailment was effected by the enrolment of a deed in Chancery. And now the dust lies thick on shelves of text-books--a whole system of learning, full of intricate details, the creation of centuries of perverse ingenuity.

THE CUSTOM OF THE MANOR

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