I fear that these glimpses of other days may seem harsh and sombre; there is blood everywhere; the cruel consequences of law or custom are pushed to their logical conclusions with ruthless determination. The contrast to the almost morbid sentimentalism of to-day is striking. So difficult it seems to hit the just mean! But the improvement is enormous. Gibes at the Law are the solace of its victims, and no one would deprive them of so innocent a relief, yet if these cared to enquire they would often find that the mark of their jest had vanished years ago to the Lumber Room.
The plan of these papers did not permit a detailed reference to authorities, but I have mentioned every work from which I derived special assistance. I will only add that this little book originally appeared as contributions to the National Observer under Mr W. E. Henley's editorship. I have made a few additions and corrections.
CONTENTS
| PAGE | |
| BENEFIT OF CLERGY | [1] |
| PEINE FORTE ET DURE | [10] |
| A PASSAGE IN SHAKESPEARE (FINES AND RECOVERIES) | [26] |
| THE CUSTOM OF THE MANOR | [36] |
| DEODANDS | [54] |
| THE LAW OF THE FOREST | [62] |
| PAR NOBILE FRATRUM (JOHN DOE AND RICHARD ROE) | [74] |
| SANCTUARY | [84] |
| TRIAL BY ORDEAL | [98] |
| WAGER OF BATTLE | [107] |
| THE PRESS GANG | [120] |
| SUMPTUARY LAWS | [129] |
BENEFIT OF CLERGY
"Benefit of Clergy" is a phrase which has entered into English literature and English thought. The thing itself exists no longer, though the last traces of it were only removed during the present reign; but it so strikingly illustrates certain peculiarities of English law-making, it has, moreover, so curious a history as to be interesting even to-day. It took its rise in times when the pretensions of the Church, high in themselves, were highly favoured by the secular power. The clergy was a distinct order, and to subject its members to the jurisdiction of the secular courts was deemed improper; so, when a clerk was seized under a charge of murder, or some other crime, the ordinary stepped forth and claimed him for the "Court Christian," whereto the whole matter was at once relegated. There the bishop or his deputy sat as judge. There was a jury of twelve clerks before whom the prisoner declared his innocence on oath. He was ready with twelve compurgators (a species of witnesses to character) who, after their kind, said more good of him than they had any warrant for; after which, on the question of fact, some witnesses were examined for, but none against him. This curious proceeding, which was not abolished till the time of Elizabeth, soon became a sham. Nearly every accused got off, and the rare verdict of guilty had no worse result than degradation or imprisonment.
Now, so far, the system is intelligible, but in the succeeding centuries it lost this quality. English legal reformers have ever shown a strong disinclination to make a clean sweep of a system, but they keep tinkering at it year after year with a view of making it more rational or better adapted to current needs. They did so here, and the result was a strange jumble of contradictions. First, the privilege was confined to such as had the clerical dress and tonsure, afterwards it was extended to mere assistants, the very door-keepers being held within the charmed circle; yet the line had to be drawn somewhere, and how to decide when every ruffian at his wits' end for a defence was certain with blatant voice to claim the privilege? Well, could he read? If so, ten to one he was an ecclesiastic of some sort, and therefore entitled to his clergy. And it soon came that this was the only test demanded. If you could read you were presumed a parson, and had your right to at least one crime free. As no woman could possibly be ordained, she could not "pray her clergy"—(an exception was made in the case of a professed nun)—nor might a bigamus, who was not a man who had committed bigamy, but one who "hath married two wives or one widow." However, a statute (1 Edw. VI., c. 12, s. 16, temp. 1547) made an end of this latter distinction by declaring, with quaint tautology that bigami were to have their clergy, "although they or any of them have been divers and sundry times married to any single woman or single women, or to any widow or widows, or to two wives or more." Before this it might well be that your chance of saving your neck depended on whether you had married a widow or not; which species was dangerous in a sense undreamt of by Mr Weller. As regards the reading, it must not be supposed that a difficult examination was passed by the prisoner before he escaped. You had but to read what came to be significantly called the Neck-verse from the book which the officer of court handed you when you "prayed your clergy." The Neck-verse was the first verse of the fifty-first Psalm in the Vulgate. It was only three words—Miserere mei, Deus: "Have mercy on me, O God." It seems strange that it was ever recorded of anyone that he did not read, and was therefore condemned to be hanged; for surely it were easy to get these words by heart and to repeat them at the proper time? This must have been done in many cases, and yet sometimes criminals were so densely ignorant and stupid, or it might be merely bewildered, that they failed; then the wretch paid the penalty of his life. "Suspendatur," wrote the scribe against his name, and off he was hauled. The endless repetition of this word proved too much for official patience, and with brutal brevity the inscription finally appears, "Sus." or "S."