The Commonwealth was a time of legal as well as political change. The Lord Protector had, with quaint emphasis, described the Court of Chancery as "an ungodly jumble," and Rolle, his Lord Chief Justice of the Upper Bench, before and since known as the King's Bench, laid violent hands on the action of ejectment. "What," urged he in effect, "was the use of actual entry, lease and ouster? Let all be held as done: so that the Court may apply itself at once to the real question at issue." Finally, the action was in name Doe against Roe, but the writ as a mere form was suppressed, and the first step was the declaration and notice to appear, both served on the real defendant or his tenant. The declaration stated that the land in question had been demised by A. (the real claimant) to John Doe; but that Richard Roe had entered thereon by force and arms and ejected him, "to the great damage of the said John Doe, and against the peace of our Lord the now King;" and that therefore he brought this action. To this there was appended a letter, signed "your loving friend Richard Roe," addressed to B., the real defendant, and informing him that the sender, hearing that he claimed the land, must now tell him that he (Richard), being sued "as a casual ejector only, and having no title to the same," he advised him (B.) to enter appearance as defendant, "otherwise I shall suffer judgment therein to be entered against me by default, and you will be turned out of possession." Now, to succeed in his action, the plaintiff must clearly prove four things—Title, Lease, Entry, and Ouster; and the three last he could not do, since they never happened. This little difficulty was got over by a consent rule: the Courts allowed B. to take Richard Roe's place as defendant, only on condition that he would confess those three things to have happened which never did happen: whereupon the real question of title alone remained.

So strangely had this action varied from its first use—which was to recover damages for wrongful possession of land—that in the result these were nominally estimated at a shilling; and if A. really wished to make B. disgorge the spoils of possession, he sued him again for Mesne Profits. Although the action was nominally "Doe against Roe," the cases are usually cited as "Doe on the demise of A." (the real plaintiff) "against B." (the real defendant), and whilst John and Richard were the favourite styles, we have occasionally "Good Title against Bad Title": a comically impudent begging of the question at issue. If the outside public mocked these venerable figures, par nobile fratrum, the suitor did so at his peril. A certain Unitt (temp. George I.), being served with a copy of a Declaration in Ejectment, "pronounced contemptuous words on the delivery of it," and the judges in solemn conclave held that he was in contempt, and was deserving of punishment therefor. So the masque of shadows went on till 1852, when the Common Law Procedure Act removed an obstacle which lawyers had walked round for centuries, and consigned John Doe and Richard Roe to that limbo where so much legal rubbish lies buried under ever-thickening clouds of dust.

SANCTUARY

Your old-world lawyer was an ardent, if uncritical, antiquary. He began at the beginning, and where facts ran short his fancy filled up the blank. In discussing Sanctuary he started with the biblical cities of refuge. He had something to say of Romulus and the foundation of Rome. Geoffrey of Monmouth supplied him with the name of a sovereign—Dunwallo Molmutius to wit—who flourished in Druidical Britain (B.C. 500 it was said), under whom cities and even ploughs were arks of refuge for the despairing fugitive. It might have been objected that the ancient Britons had neither ploughs nor cities; but such criticism was not yet in the land. We touch firmer ground in the centuries immediately preceding the Conquest. In early English legislation churches safeguarded the criminal from hasty vengeance, and so allowed time to settle the money compensation payable for his offence. Sanctuary was among the privileges that the Conqueror conferred upon his foundation of Battle Abbey—one of many cases wherefrom the Norman lawyers built up a system for mediæval England.

That system was not always consistent or clear, but its main outlines were as follows:—sanctuaries were of two kinds—general, as all churches and churchyards; special, as St Martin's Le Grand and Westminster. No doubt these last had originally also a religious sanction. Such places were twice consecrate: Pope and King, the Canon and the Common Law united in their favour. They protected felons, but not those guilty of sacrilege or (some held) of treason. They were not properly for debtors, whose reception was nevertheless justified by an ingenious quibble. Imprisonment might endanger life, and therefore (so the learned argued) the runaway debtor must be received. A man took sanctuary thus—Having stricken (let us say) his fellow, he fled to the cathedral and knocked (with how trembling a hand!) at the door of the galilee. Over the north porch were two chambers where watchers abode night and day. On the instant the door swung open, and had scarce closed behind the fugitive when the galilee bell proclaimed to the town that another life was safe from them that hunted. Then the prior assigned him a gown of black cloth marked on the left shoulder with the yellow cross of St Cuthbert, and therewith a narrow space where he might lie secure of life, though ill at ease. So it was at Durham. At Westminster the sanctuary man bore the cross keys for a badge, and walked in doleful state before the abbot at procession times; and there were, no doubt, countless variations. A phrase of the time reveals how close the watch was now and again. Under Edward II. it was complained that the sanctuary man might not remove so much as a step beyond the precincts, causâ superflui deponendi, without being seized and haled to prison. He was fed and lodged in some rough sort for forty days, within which time he must confess his crime before the coroner at the churchyard gate, and so constitute himself the king's felon. Then he swore to abjure the realm. The coroner assigned him a port of embarcation (chosen by himself), whither he must hasten with bare head, carrying in his hand a cross, not departing, save in direst need, from the King's highway. He might tarry on the shore but a single ebb and flow of the tide, unless it were impossible to come by a ship, in which case he must wade up to his knees in the sea every day. He was thus protected for another forty days, when, if he could not find passage, he returned whence he came, to try his luck elsewhere.

He who refused to confess and abjure was not driven forth, but if, after much spiritual admonition, he still refused to conform, he had neither meat nor drink given him, and so was ended, if not mended. A man unjustly deprived of sanctuary could plead the right before his judges. It was a declinatory plea, and must be urged before he answered as to his guilt or innocence; it availed him nothing to do so after, for he was strung up forthwith. This system, however harsh, had two very plain advantages. It was a short and easy method with a rascal, and it powerfully made for scientific accuracy in pleading. If a fugitive were caught and condemned ere he "took Westminster," as the town phrase ran, it was no advantage for him to escape on the way to execution, inasmuch as he was promptly haled forth to the gallows. A curious case in the eighth of Edward II. perplexed the ancient student. A woman was condemned to death, but a jury of matrons had no doubt as to her condition, and she was reprieved. She escaped to sanctuary before the arrival of the hangman's cart, and when the gaoler dragged her out, the judges bade him put her back again, whereat the learned shook their heads, opining that hard cases make bad law, and the jade should have swung like other folk.

On the whole the privilege was strictly respected. For instance, the King's justices were wont to hold session in St Martin's Gate. They sat on the very border. The accused were placed on the other side of the street; a channel ran between them and their judges, and if they once got across that they claimed sanctuary, and all proceedings against them were annulled. And one sees the reason why Perkin Warbeck took such care "to squint one eye upon the crown and the other on the Sanctuary" (as Bacon curiously phrases it); yet the great case of Beckett is there to show that nothing was absolutely sacred in these violent years. Nor does it stand alone. In 1191, Jeffrey, Archbishop of York, and son of Henry II., was seized at the altar of St Martin's Priory, Dover; and dragged, episcopal robes and all, through dirty streets to the Castle: this, too, by order of William Longchamp, Bishop of Ely, and Papal Legate. In 1378, Archbishop Sudbury complained in Parliament that one Robert Hawley had been slain at the high altar even while the priest was saying a mass. It was rumoured indeed that one Thurstian, a Knight, chasing a sanctuary man with drawn sword, was of a sudden stricken with grievous ailments. But this and other like stories did not deter the citizens of London (circa 1349) from assembling at supper time in a great crowd, and dragging forth a soldier who had escaped on the way from Newgate to Guildhall, where he was being taken for trial. In another case (temp. Henry VI.), where a youth had taken sanctuary after having foully slain a kind mistress, the good women about St Martin's broke in and despatched him with their distaffs. Of those who took sanctuary to good purpose the most famous was Elizabeth, widow of Edward IV., who, in 1471, registered herself a sanctuary woman in Westminster, and there sat, in Sir Thomas More's phrase, "Alow in the rushes." But you have read the tragic story in Shakespeare. And in a later age "beastly Skelton" (as Pope will have him), from that same Westminster safely lampooned the mighty Wolsey, though for that he needs must live and die there.

To catalogue the evils of the sanctuary system were to show lack of historical sympathy, nay, even of humour. The former days were not as these; it had its place with the shrine and the pilgrimage, the knight errant, and the trial by ordeal in the strange economy of a vanished world. As the times grew modern its practical inconvenience was felt for the first time. Yet the occasion of the first assault on the privilege of sanctuary was one where the benefits were conspicuous, and the assailant had the worst of motives. It was the case just noted of Edward IV.'s widow; she had the young Duke of York as yet safe with her. Her enemies were at a loss for the moment, and Buckingham, then the sworn ally of Richard of Gloucester, took occasion in the Privy Council to attack her place of refuge. "There were two chief plague-spots in London," he snarled: "one at the elbows of the city (Westminster), the other in the very bowels thereof (St Martin's le Grand). These places were the refuge of theeves, murtherers, and malitious, heynous traytors! nay," he added, "men's wives ran hither with their husbands' plate, and say they dare not abide their husbands for beating," with more to the same effect. Had not Elizabeth yielded, Westminster might have witnessed a violation as affecting as that of Canterbury.