Under Henry VIII. the old order was broken up, and sanctuary law, like much else, was changed and amended again and again. First, all special places save Wells, Westminster, and six others, lost the privilege. Divers classes of criminals —as traitors, and pirates (and afterwards) Egyptians—were formally rendered incapable of its enjoyment. Before the sanctuary man abjured the realm he was burned on the crown of the thumb "with the signe of an A," and if he did not depart on the instant, he had no further protection. But it occurred to over-anxious legislators that such a fugitive might carry beyond seas precious hints of the mysteries of trade or politics, or that, making as if for the nearest port, he might but proceed to infest another place. So he was ordered to abjure the liberty of the realm, but not the realm itself; and being branded, was confined under a governor in one or other of the sanctuaries. Whenever he ventured forth—as he might in the daytime—he must wear the prescribed badge of the refuge. He dare carry no weapon save a meat-knife, and that but at meal-times. He must likewise answer to the daily roll-call. If he committed another felony—and crimes done sub spe redeundi had been a sore grievance of late—he was to lose his rights. The governor was empowered to hold courts for debt and minor offences within his bounds. And so "the sanctuary person abjured," as the Tudor lawyers phrased him, spent the last days of his evil life. I need not dwell on minor tinkerings of the system under Henry's children. In 1623 the Statute 21 James I., c. 28, s. 7 made a legal end of the right of sanctuary.
The last of our story is not yet. Certain places still assumed the right of giving shelter against civil process. When the bailiffs invaded the liberty, the whole population forthwith set on, and pommelled them so lustily that they were fortunate if they escaped sound in limb. The precincts of Whitefriars and the Savoy were the worst places in London. The first, renowned in slang, nay, in literature, as Alsatia, because (some explained) it neighboured the Temple on the East, as Alsace did France, was a base and villainous Bohemia. Ram Alley (now Mitre Court), a local Lombard Street, Salisbury Court (now Salisbury Square) were its chief ways, though probably all between Fleet Street and the river, which was not the Temple, held of this lawless republic. A bully or bravo, or squire of Alsatia was a cant name for a penniless and violent fellow of the time. He is pictured by Otway in his Soldier's Fortune with flopping hat pinned up on one side, with a tawdry weather-beaten peruke, dirty linen, and a long scandalous iron sword jangling at his heels. The sheriff with the posse comitatus did on occasion raid Alsatia, but his prey, if too weak to fight, had ever timely warning to escape by land or water to some other like burrow. The Fortunes of Nigel tells as much of the place as the general cares to know, and there is much curious matter mined out by the zealous antiquary as to other like places of refuge in the capital. Thus Fullwood's, sometime Fuller's Rents, was related to Gray's Inn as Alsatia to the Temple. In 1673 the gentlemen of that ancient house so far forgot themselves as to engage in "pumping" some bailiffs who attempted to take goods from out the Rents upon an execution. "They were charged with a body of thirty lusty bailiffs," and a "strong ryot" ensued. Possibly they recollected that their most illustrious fellow-member, "broad-browed Verulam," had taken refuge there some sixty years before, a circumstance which gave my Lord Coke occasion to "gall the kibe"—as indeed he never lost any chance to do—of his great contemporary. Then there was the mint in Southwark, whereto an ex-poet laureate, "poor Nahum Tate," as Dr. Johnson calls him, was driven by extreme poverty. Pope's cruel satire pictures it half Grub Street half Bedlam, the last refuge of the hack and the poetaster. The Clink and Deadman's place are now forgotten, whilst Baldwin's Gardens and the Minories have a more commonplace reputation.
About a century after James's Act, Parliament again interfered, and professed to strip the "pretended privileged places" of every shred of exemption, but it required two other statutes, the 9 Geo. I. c. 28, 1722, and the 11 Geo. I. c. 22, 1724, to make the law's process as effectual there as elsewhere.
TRIAL BY ORDEAL
Before the Conquest, and for long after, local justice in England was administered by two courts—that of the Hundred and that of the Shire. The first nominally consisted of the freeholders of the district, but the real business was done by a Committee of Twelve. The second was made up of the chief men of the district, and representatives from each township; but here, again, the work was left to a select few. If a man were charged with (say) theft before either court, he was tried in a fashion vastly different from that obtaining to-day. The complainant was sworn on the holy relics: "By the Lord I accuse not this man either for hatred, or for envy, or for unlawful lust of gain." This solemn accusation made out a primâ facie case against the suspect, who instantly rebutted oath with oath. "By the Lord I am guiltless, both in deed and in counsel of this charge." Then he produced twelve compurgators, who swore by the Lord, "The oath is clean and unperjured which this man hath sworn"; then the prisoner went free. These compurgators were witnesses to character. Their testimony had no reference to the particular facts of the case; they simply alleged their belief in accused's innocence, but sometimes their oath "burst" (as the curious technical phrase ran), that is, he could not find compurgators, or those he produced said little good of him; or he was a stranger of whom nothing was known; or a Welshman whose veracity has never been an article of faith; or the accused was caught with his booty; or was a woman; or the charge was peculiarly odious, as treason, or witchcraft; then in all these cases there was an appeal to the Judicium Dei, the Creator was called upon to prove beyond dispute the guilt or innocence of the accused.
Trial by Ordeal was more ancient than the Church itself. There are traces of it in the Old Testament; it is discussed in great detail in the Laws of Manu; a famous passage in the Antigone (verses 264-267) reveals it as well known to the Greeks, and before Augustine came, or St Columba preached, it prevailed in some form or other in Britain. Yet the higher ecclesiastical powers continually thundered against it, and finally brought about its disuse. There were several varieties, but many forms were common to all. First, there was the ordeal of cold water, chiefly reserved for the baser fellow. As a preliminary the accused submitted to a fast of three days, during which he was watched by a priest, then he was taken to church to hear Mass; and was adjured by Father, Son, and Holy Ghost, by the gospels and relics of the saints, by everything held most sacred, not to partake of communion if he were guilty. Next came the adjuratio aquæ, wherein the water was enjoined to cast him forth if he were guilty, but to receive him into its depths if innocent. And now, having been stripped, he kissed the Book and the Cross, was sprinkled with holy water and was cast in, to float if he were guilty, to sink if he were not. But there was the rub—how about death by suffocation? Sir James Stephen suggests that it was all a mode of happy despatch! Or (one fancies) it might be an elementary form of the famous verdict "not guilty, but don't do it again," with the chance of doing it again effectually provided against. On the other hand, a recipe for immersion in a thirteenth century MS. of the Monastery of Becca reduces the proceedings to the level of farce. The hands of the accused were tied, and a rope was put round his waist; "and let a knot be made in the rope as high up as the longest hair of the man's head will reach, and then in this way let him be gently lowered into the water; and if he sinks down to the knot, let him be pulled out as innocent; if not, let him be adjudged guilty." How not to sink under such conditions? The practice of testing witches by throwing them, securely tied, into the nearest pond was clearly a survival of this form of ordeal.
In the ordeal by hot water the accused, plunging his hand to the wrist in the boiling fluid, brought forth a stone suspended therein by a cord. (This was the Single Ordeal, and it became the Triple when the plunge was up to the elbow.) The arm was done up in bandages not to be removed till after three days; if the scald had healed the man was innocent, if it still festered he was guilty. In the ordeal by hot iron, a piece of red-hot metal was carried a distance of nine feet; it was then dropped and the hand was bandaged as already set forth. A knight had to thrust his fist into a glowing gauntlet; another form was a walk with naked feet over a sequence of red-hot ploughshares. We have a picturesque circumstantial and absolutely untrustworthy monkish account of how Emma, mother of Edward the Confessor, being suspected of an all too intimate acquaintance with Alwyn, Bishop of Winchester, underwent this trial. She took nine steps for herself and five for the Bishop, fixing her eyes the while on heaven. "When shall we reach these ploughshares?" queried she. How agreeable a surprise to find her little promenade already past and done with! No need to swathe her feet, the red-hot iron had marked them not at all!
The last mode was the Corsnæd, or Cursed Morsel—a piece of barley-bread (or cheese), one ounce in weight. This "Creature of Sanctified Bread" was adjured, in terms terrible enough to make the sinner quake, to stick in the guilty throat, and cause the guilty jaws to be clenched and locked up. If in spite of all it went softly down, who dared to refuse belief in the man's innocence? It was chiefly for the clergy, and from every point of view must have been the most agreeable of the three, though a legend as untrustworthy as that of Emma ascribes to it the death of Earl Godwin, father of Harold. As he sat at meat with Edward the Confessor, the king brought up an old scandal about his brother's murder, "May God cause this morsel to choke me," passionately exclaimed the earl, "if I am guilty of the crime!" Edward blessed the bread; Godwin made an effort to swallow, choked and died. "Take away that dog," said the monarch in what would seem an outburst of savage glee. This was on April 15th, 1053, thirteen years before the Conquest. Godwin in truth died of a fit. It soon was the policy of the monkish chroniclers to write down the national party of which he had been the head, a fact which explains the fable were it worth serious examination. More interesting to note the survival of the rite in the still current rustic formula, "May this bit choke me if I lie!" If the ordeal proved a man guilty, the punishment was fine, death or outlawry, but even if he escaped, the Assize of Clarendon (1164) ordered that, in certain cases, he should abjure the realm. By that time compurgation was gone; in 1215 the Lateran Council issued a solemn decree against Trial by Ordeal; and soon after it had vanished from English law. There is a curious reference to it in the State Trials as late as 1679. John Govan, a Jesuit priest, was indicted in that year at the Old Bailey for an alleged share in the Popish Plot. With some hesitation he claimed the right of Trial by Ordeal as an ecclesiastical privilege of a thousand years' standing, but Scroggs and North peremptorily refused to listen to his plea. "We have no such law now," said the latter. Sir James Stephen assures us that the formula, "By God and by my country," wherein, till 1827, a prisoner must answer the question how he would be tried, sets forth a memory of it.